YLR 2024 Judgments

2024 Y L R 328

[Federal Shariat Court]

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

SHOLO alias RASOOL BUX---Appellant

Versus

The STATE---Respondent

Jail Criminal Appeal No. 3-I and Criminal Murder Reference No. 2-I of 2021, decided on 14th May, 2022.

Per Muhammad Noor Meskanzai, CJ. [Minority view]

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Ocular account was furnished by two witnesses, complainant and an eye-witness---Complainant narrated the facts in a natural way and supported the contents of FIR in letter and spirit---Lengthy cross-examination was conducted but the defence failed to shake and shatter the statement---No omission, contradiction or improvement could be brought on record---Similarly, other witness, who too was an eye-witness of the incident, supported complainant on each and every material aspect---During the course of cross-examination the witness stuck to his version despite lengthy cross-examination and nothing favourable to accused could be extracted---Medical Officer produced MLC and postmortem report which corroborated ocular account in as much as the witnesses deposed that the firing was made from a very short distance---Presence of blackening on entrance wound corroborated the ocular account---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of crime empties from the spot---Reliance---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Although no recovery of crime weapon was effected as admittedly the convict was arrested after six years but nevertheless the recovery of empty shells from venue could not be overlooked---Recovery of empty shells of various kinds of weapons also corroborated the ocular account, inasmuch as, the accused were numerous and armed with different kinds of weapons---Except very minute and immaterial contradiction, the prosecution evidence was straight forward, coherent, confidence inspiring and did not suffer from any defect rendering it in-admissible---Appeal against conviction was dismissed, in circumstances

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses at venue proved---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Admittedly, venue was located at a distance of about 200 paces from the house of victim, where the complainant along with victim and other witness and rest of the family members resided---Said position had not been disputed---Presence of inmates in the house and particularly in rural area at evening time was a natural phenomenon---Moreover, throughout cross-examination the presence of eye-witnesses had not been disputed nor denied---Thus, there was no reason to doubt the presence of eye-witnesses at the venue---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of more than twelve hours in lodging FIR explained plausibly---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Admittedly, there was delay of more than twelve hours in lodging FIR, but the delay had been explained plausibly---Victim after sustaining injury instantaneously expired---From the very beginning it had been stated that due to non-availability of conveyance they could not remove the dead body to Police Station---Even by the time of removal of dead body from the venue to the house night might have fallen---Early in the morning without wasting time and by arranging conveyance the dead body was removed to Police Station---Statements under S. 161, Cr.P.C., of the witnesses were recorded on the same day---Thus, at night time journey to police station located at a distance of five kilometers might not have been safe---Delay was understandable, as the complainant party helplessly observed the death of a family member with their naked eyes---Fear of another attack, though not expressed by them categorically, prevailing upon their mind could not be ruled out particularly in the wake of conduct and whereabouts of the accused party---Some accused were arrested but they made their escape good even from jail---Some accused were still absconders and only one accused was found guilty whereas one accused had been acquitted---In such circumstances, to stick to a technicality i.e. the delay, perhaps might not be a legal and viable approach nor would serve the ends of justice---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Conduct of accused---Involvement in other heinous cases---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Accused remained absconder for a considerable period---Accused was arrested from jail when he was under custody in another criminal case---Record reflected that accused was involved in a couple of heinous cases---Accused admitted his abscontion with the explanation that due to tribal enmity he absconded but during that period he indulged in criminal activities---Of course, no judgment regarding fate of the other cases had been placed, nevertheless, the worth of the FIRs and allegations contained therein carried sufficient weight and reflected the conduct of the accused---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Motive proved---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Dispute over landed property was set up as motive---As per statements of witnesses, the complainant party was threatened to vacate the village---Motive to that extent was even admitted by defence---Moreover, the convict, while recording his statement under S. 340(2), Cr.P.C., categorically stated that they had been nominated in the case on account of dispute over landed property---Hence, the motive stood proved and corroborated the prosecution case---Appeal against conviction was dismissed, in circumstances.

Per Khadim Hussain M. Shaikh, J; dissenting with Muhammad Noor Meskanzai, C.J. [Majority view]

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of fourteen hours in lodging the FIR explained plausibly---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Dispute over landed property was motive behind the occurrence---From a perusal of the record, it could be seen that the alleged incident was shown to have taken place on 26.09.2006 at about 05:30 p.m., while the subject FIR was lodged on 27.09.2006 at 07:15 a.m. i.e. after about 14 hours of the incident---Distance between the place of incident and the police station as shown in the FIR was only 5/6 kilometers---Report relating to the incident could be lodged by the complainant party within an hour by covering such distance of 5/6 kilometers even by foot---Such an inordinate delay in lodgment of the FIR was viewed with great suspicion and scrutiny when number of accused was large---How much it threw clouds of suspicion on the seeds of prosecution depended on a variety of factors---Possibility of false implication of the accused after consultations and deliberations could not be ruled out in circumstances---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of six hours in recording the statement of eye-witness after the lodgment of FIR---Consequential---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Record showed that the statement under S. 161, Cr.P.C., of alleged eye-witness, who happened to be the son of complainant and real brother of deceased, was recorded with delay of more than six hours even from the lodgment of the FIR---It was evident from the deposition of Investigating Officer, that he recorded the statement of eye-witness at 01:00 or 01:15 p.m.; he recorded the statement of said eye-witness on the same day when Police Constable produced the blood stained clothes of deceased before him, despite the fact that as per prosecution said witness remained available at the police station from 07:00 a.m. till dispatch of the dead body to hospital at 10:00 a.m.---Possibility of false implication of the accused after consultation and deliberations could not be ruled out in circumstances---Appeal against conviction was allowed, in circumstances.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of the witnesses---Consequential---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Record showed that it was day time incident---On 26.09.2006 (the date of incident) the sunset time in the vicinity, where the alleged incident had taken place was at 06:20 p.m. and the offence was shown to have taken place at 05:30 p.m. i.e. 50 minutes before sunset time---From sunset to dusk there was always span of nearly 40 to 50 minutes---One of the eye-witnesses of the occurrence, attempting to improve the prosecution case, had stated in his evidence that it was odd hours of the night and there was no conveyance, therefore, they did not proceed to Police Station at that time, which even otherwise could hardly be termed to be a plausible explanation for an inordinate delay of 14 hours in lodgment of the FIR---Said witness stated that Investigating Officer secured 20 empty bullets of Kalashnikov and 20 empty bullets of G.3 rifle from the place of vardhat lying in scattered manner, while Investigating Officer had deposed that he secured 20 empty bullets of G.3 rifle, 40 empty bullets of 7.62 bore (bore of Kalashnikov) and 5 empty cartridges of 12 bore (bore of shot gun); whereas mashir had deposed that the police secured 40 empty bullets of Kalashnikov and 20 empty bullets of G.3 rifles---Seeing the case property, witness went on to depose that the case property available in the Court viz 60 empty bullets and clothes of the deceased were same whereas five empty cartridges of .12 bore available with the case property were not secured by the police in their presence---Thus, said witness had not only contradicted Investigating Officer and alleged eye-witness on such aspect, but he had also belied the contents of themashirnama of place of vardhat, which showed that besides 60 empty bullets i.e. 40 empty bullets of Kalashnikov and 20 empty bullets of G.3 rifle, 5 empty cartridges of .12 bore gun, were also secured from the place of vardhat, which also ran counter to the prosecution case for the reason that, per prosecution, there were in all 26 culprits, who committed the alleged offence---Two were allegedly armed with rocket launchers while the rest 24, which included 10 unknown persons, were alleged to be armed with Kalashnikovs---No one amongst the 26 culprits was alleged to be armed with either G.3 rifle or with gun---Eye-witness had stated that the empty bullets were lying at a distance of about 8/10 paces from the place of blood stained earth secured by the police, while mashir had stated that the empties were lying in a scattered manner at the distance of about 2/3 paces---Investigating Officer had stated that Police Constable returned at Police Station and produced the clothes of deceased and receipt of handing over dead body of deceased to legal heirs (on the day of incident); whereas complainant had stated that he handed over the clothes of deceased to police at Police Station after third day of incident--- Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd---Appreciation of evidence---Material witness not produced for evidence---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Record showed that the prosecution claimed that complainant and his two sons allegedly had seen the occurrence, but it was strange that one son of the complainant was not examined by the prosecution---Said fact suggested that either he was not supporting the prosecution case or the prosecution intentionally did not examine him so as to frustrate the purpose of cross-examination---Otherwise there was no valid reason for not examining such material witness, who per prosecution, was the eye-witness of the occurrence and brother of deceased and eye-witness and son of complainant---Such eye-witness was neither cited as witness in the list of witnesses proposed to be examined by the prosecution nor was he cited as reserved witness in the challans/charge sheets and his statement under S. 161, Cr.P.C. was not shown to have been recorded during the investigation as was revealed from the deposition of Investigating Officer---In such state of affairs, adverse inference could legitimately be drawn under Art. 129(g) of Qanuan-e-Shahadat Order, 1984 against the prosecution that had he been examined, he would not have supported the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Presence of eye-witnesses at the spot doubtful---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Per prosecution there were in all 26 culprits, who committed the alleged offence, of them two accused were allegedly armed with rocket launchers while the rest 24, which included 10 unknown culprits, were said to be armed with Kalashnikovs and no one among the 26 culprits was alleged to be armed with either G.3 rifle or with a gun---Said fact had been negated by the alleged place of incident as 20 empty bullets of G.3 rifle, 40 empty bullets of Kalashnikov (7.62 bore) and 5 empty cartridges of .12 bore gun, were shown secured from the place of vardhat, which proved that the firing was also made from G.3 rifle and 20 bore gun---No one amongst the complainant and the alleged eye-witnesses had admittedly sustained any injury or scratch in the alleged incident---Strange enough that no one amongst the culprits had even attempted to fire at the complainant and his two sons and freely allowed them to see the entire scene of vardhat and become eye-witnesses against them, which being incomprehensible did not appeal to a prudent mind---In the wake of said material and glaring contradictions in their evidence, the presence of the complainant and alleged eye-witnesses, who were father and brothers of the deceased, at the place of incident when the actual occurrence took place, was highly doubtful---Appeal against conviction was allowed, in circumstances.

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

(l) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance creating reasonable doubt in a 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.

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

(m) Criminal trial---

----Absconsion---Scope---Abscondence is not conclusive by itself to establish guilt--- Probative value of the abscondence depends on the facts and circumstances of each case, having regard to the fact that it could be consistent with either guilt or innocence of the accused, as some times persons despite being absolutely innocent remain in hiding which could not be the proof of their guilt---Abscondence is of course a corroborative circumstance and gave some kind of support to the other evidence strong enough to sustain the charge---Thus, the abscondence by itself is not sufficient to bring home guilt of the accused---Moreover, if ocular evidence is disbelieved then abscondence alone does not play any role in conviction of an accused person because it is held to be weakest type of corroboratory evidence.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Involement of accused in previous FIRs---Not consequential to establish accused as a habitual and hardened criminal--- Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Allegedly, accused was involved in many other cases---Patently, the photocopies of the FIRs were placed on record by the complainant after hearing the case and reserving it for judgment, which under the law could not be given any effect to---Even otherwise photocopies of the FIRs placed on record by the complainant, had no evidentiary value---Most of the FIRs related to some encounters between the police and the accused, involving ineffective firing and none of the cases based on such FIRs was shown to have ended in conviction---On a query the complainant had stated that he did not know about the fate of the cases based on those old FIRs, pertaining to a period of more than one decade ago---Moreover, the FIRs were neither collected during the investigation nor were produced in evidence and even the same were not confronted to the accused in his statement under S. 342, Cr.P.C., so as to obtain his explanation thereon as mandated by provisions of Ss. 342 & 364, Cr.P.C., as such the same could not be considered and used for the purpose of conviction of the accused---Mere filing of photocopies of old FIRs of certain cases showing the name of the accused without their fate would hardly be a proof for determining the tendency and previous conduct of the accused, therefore, the contention of the complainant that the accused was habitual and hardened criminal, was untenable---Appeal against conviction was allowed, in circumstances.

Per Dr. Syed Muhammad Anwer, J; agreeing with Khadim Hussain M. Shaikh, J. [Majority view]

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Islamic jurisprudence on doubts in a criminal case---Accused was charged that he along with his co-accused drove cattle of complainant party; son of complainant tried to grapple with them, on which accused fired at him and killed him---Islamic criminal justice system provided that doubts removed the punishment of hadd---Thus, His Lordship decided to concur with the (majority) findings made by Justice Khadim Hussain M. Shaikh whereby he accepted the appeal of the accused and acquitted him by extending benefit of doubt.

Sahih Ibni Hamam, Fath al Qadir. d.861 Hijri, Vol 5. p. 32; Imam Suyuti al-Ashbah wa al-Nazair, p.172; Imam Ibn Nujaim Al Ashbah wa al-Nazair al, Qaida Sadisah p.133; Wahbah Zuhaili, al fiqh al Islami wa adilahta hu, Vol 4. p. 107; Ibn Majah (Hadith No.2545 , Vol 2 , p. 379); Abdul Salam Ibn i Tamiya in Muntaqa tu alakhbar (No. 4039 in Vol.2, p.507; Kanz al- Ummal fi Sunnan Wa al-Aqwal at No.12974 Vol.5 p. 164; Musanaf Ibn e Abi Shu'abah Vol 8; Sunnan al Kubra al-Bahiqi (No.17063) and ref.

Mrs. Saleha Naeem Ghazala for Appellant.

Syed Sikandar Ali Shah for the Complainant.

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

2024 Y L R 1090

[Federal Shariat Court]

Before Dr. Syed Muhammad Anwer, J

ABDUL MOEEN---Appellant

Versus

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

Criminal Appeal No. 04-I of 2022, decided on 7th December, 2023.

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

----Ss. 324, 450, 334, 148 & 149---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with imprisonment for life, itlaf-i-udw, rioting with deadly weapons, unlawful assembly, attempt to commit offence of zina---Appreciation of evidence---Victim as star witness---Accused was charged that he along with his co-accused persons abducted the sister of the complainant to contract marriage against her will, however, when she resisted, the accused opened fire at her, as a result whereof she received injuries on both of her arms---In the instant case the victim/injured was the star witness, hence her sole evidence was enough to prove the case of the prosecution beyond any doubt---Statement of the victim, which was supported by the medical evidence as well as by the statements of eye-witnesses, was enough to prove the case of the prosecution---In this case, the sole statement of the victim was trustworthy and confidence inspiring along with the statements of the eye-witnesses, hence same was enough to maintain the conviction of the accused---Appeal was dismissed, in circumstances.

Khalid Mehmood alias Khaloo v. The State 2022 SCMR 1148 ref.

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

----Ss. 324, 450, 334, 148 & 149---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with imprisonment for life, itlaf-i-udw, rioting with deadly weapon, unlawful assembly, attempt to commit offence of zina--- Appreciation of evidence--- Medical evidence---Irregularities--- Not consequential---Accused was charged that he along with his co-accused persons abducted the sister of the complainant to contract marriage against her will, however, when she resisted, the accused opened fire at her, as a result whereof she received injuries on both of her arms--- Accused pointed out certain irregularities in Medico-Legal Certificate, like the name of the victim and date of examination by the Medical Officer were not written in the prescribed column of the Medico-Legal Certificate, where they were supposed to be written, instead they were written by the doctor underneath the prescribed lines in the printed form, hence it was contended that the Medico-Legal Certificate must not be read as evidence---Furthermore, it was contended that the fact that the arm of the victim was amputated at Hospital, from where Medico-Legal Certificate was issued; the victim was discharged and her left upper limb was amputated, but it was not written on Medico-Legal Certificate which doctor did the surgery and amputated her arm---Such irregularities were immaterial and could not be used in defence as they did not amount to failure of justice---Even otherwise, the status of medical evidence is always corroborative in its nature---Appeal was dismissed, in circumstances.

Rehmat Ali v. The State 1986 SCMR 446; Aqil v. The State 2023 SCMR 831; Muhammad Iqbal v. The State 1996 SCMR 908; Naeem Akhtar v. The State PLD 2003 SC 396; Faisal Mehmood v. The State 2010 SCMR 1025 and Muhammad Ilyas v. The State 2011 SCMR 460 rel.

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

----Ss. 324, 450, 334, 148 & 149---Offence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.18---Attempt to commit qatl-i-amd, house-trespass in order to commit offence punishable with imprisonment for life, itlaf-i-udw, rioting with deadly weapons, unlawful assembly, attempt to commit offence of zina---Appreciation of evidence---Recovery of weapon of offence--- Reliance--- Accused was charged that he along with his co-accused persons abducted the sister of the complainant to contract marriage against her will, however, when she resisted, the accused opened fire at her, as a result whereof she received injuries on both of her arms---Record showed that firearm i.e., Kalashnikov used in the crime was recovered from the possession of the appellant/accused after the abscondence of the accused for 21 years, 01 month and 20 days---This was an added circumstantial evidence to the case and a supportive evidence to prove the case of the prosecution---Appeal was dismissed, in circumstances.

Ihsan Ullah for Appellant.

Muhammad Farooq Sulehria for Respondents.

Anees Muhammad Shahzad, State Counsel on behalf of Advocate General, K.P. for the State

2024 Y L R 1713

[Federal Shariat Court]

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

Abdul Razzak alias Bagro and another---Appellants

Versus

The STATE and another---Respondents

Jail Criminal Appeal No. 01-K of 2021 and Criminal Revision No. 02-K of 2021, decided on 30th November, 2022.

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

----Ss. 302(b)& 324---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss. 17(2), 17(3) & 17(4)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah---Appreciation of evidence---Test identification parade---Infirmities---Accused was charged that he along with his co-accused persons made firing upon the complainant party, due to which nephew of the complainant died whereas his brother became injured---Record showed that the accused was not nominated in the FIR---Culprits, who committed the offence, were not known to the complainant and other two alleged eye-witnesses---Descriptions such as features and physiques etc. of the culprits were not given in the FIR---Complainant in his FIR stated that one culprit, who was equipped with Kalashnikov, snatched mobile phone from his nephew, and on the resistance of his brother and nephew to snatching of their motorcycle, the two culprits, who were armed with pistols, made fires from their pistols at them---In the joint identification parade test shown to have been carried out before the Judicial Magistrate, the complainant and two other alleged eye-witnesses allegedly picked out the accused and two other co-accused as the culprits of the subject crime, however, they neither attributed any specific role in the commission of the offence to the accused or even to the two other arrested co-accused nor did they state about any weapon carried by any of them at the time of incident, but when the complainant appeared in witness box, he deposed that "the culprit, who was armed with Kalashnikov, robbed away one Nokia mobile phone from his nephew that the culprits also tried to rob bike from him, on which his nephew resisted whereupon accused made fire from his pistol upon his nephew on his chest; that said accused also made two fires upon the knee of brother of complainant and that two accused persons had TT pistols and accused had Kalashnikov---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Ss. 17(2), 17(3) & 17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah---Appreciation of evidence---Contradictions and improvements made by witnesses ---Accused was charged that he along with his co-accused persons made firing upon the complainant party, due to which nephew of the complainant died whereas his brother became injured---Besides the complainant there were two other alleged eye-witnesses of the occurrence, of them one alleged eye-witness having been given up was not examined by the prosecution, whereas the other alleged eye-witness/injured deposed that the culprits robbed away one mobile from his son; that culprits also tried to rob the bike from his son, who resisted, on which accused armed with pistol made fire from his pistol upon his son, who received the fire shot on left side of his chest and fell down; that said accused also made two fires upon witness/injured, which he received on his right knee and fell down; and thereafter, said accused took their bike and went away---Both the said alleged eye-witnesses examined by the prosecution had not only contradicted the prosecution version as set-out in the FIR, but they had also made a vain attempt to improve the prosecution case qua the contents of the FIR and memo. of identification parade, obviously with dishonest intention so as to bring the prosecution case in line with the medical evidence, which revealed one injury on the person of deceased and two injuries on the person of injured, that rendered the credibility of both the said examined alleged eye-witnesses doubtful and no explicit reliance could be placed upon their evidence---Moreover, as per Investigating Officer he recorded statements of the witnesses under S.161, Cr.P.C at police station on the same day of identification parade, which was held after 5 days of the incident, whereas according to injured, the police recoded his statement under S.161, Cr.P.C at Civil Hospital on the same day of the incident, but complainant and mashir did not state about recording of the statement of injured either at police station as claimed by the Investigating Officer or even in the hospital as claimed by injured---According to injured, the complainant and a witness accompanied them in the ambulance and no one else from their relatives accompanied them, whereas per complainant he was accompanied with many relatives in the ambulance---Appeal against conviction was allowed, in circumstances.

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

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

----Ss. 302(b) & 324---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Ss.. 17(2), 17(3) & 17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah---Appreciation of evidence---Crime empties were recovered from the place of occurrence---Absence of forensic/ballistic report---Accused was charged that he along with his co-accused persons made firing upon the complainant party, due to which nephew of the complainant died whereas his brother became injured---Although the prosecution claimed that the accused and his two co-accused were arrested by police on the same day at 01.30 pm i.e. shortly after the subject incident occurred at 12.30 pm, but nothing had been brought on the record to show if the mobile and motorcycle, which were allegedly snatched from deceased and others, were recovered from any of the arrested accused and even crime weapons allegedly used in the commission of the offence were not shown to have been recovered from the accused, despite their having remained in continuous custody under remand after their arrest upto when the challan was submitted---Strange enough that four empties of .30 bore pistol collected from the place of incident were not shown to have been sent to ballistic expert for expert opinion---Neither any Forensic Science Laboratory Report in that respect was produced in evidence by the prosecution nor did any official witness including Investigating Officer state about sending the said article to Forensic Science Laboratory---If the Investigating Officer had any impression that the said article might be a corroborative piece of circumstantial evidence in the instant case, he should have sealed the same forthwith and handed over the same to some responsible Police Official of the police station for safe custody, but it never happened as the same were left somewhere without taking any care for getting them analyzed from the ballistic expert and as such nothing was brought on the record to show that the alleged four empty shells, secured from the place of incident, were fired from two different weapons as claimed by the complainant in the FIR or they were fired from one weapon as claimed by the complainant and injured in their evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Ss. 17(2), 17(3) & 17(4)---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah---Appreciation of evidence---Test identification parade---Identification of accused before the police---Consequential---Accused was charged that he along with his co-accused persons made firing upon the complainant party, due to which nephew of the complainant died whereas his brother became injured---Prosecution case mainly rested on the identification parade of the accused purportedly held on 05.06.2010 before the Judicial Magistrate, due to the fact that the culprits, who committed the subject offence, were not known to the complainant and other two alleged eye-witnesses and their descriptions such as their features and physiques etc. were also not given in the FIR---Accused and his two co-accused were arrested by the police in another case on the same day of incident i.e. 31.05.2010---Complainant and injured claimed to have visited police station along with other alleged eye-witness to see the arrested accused persons 4/5 days before the test identification parade in question held on 05.06.2010 as was revealed from their evidence---Accused and his two co-accused were shown to have been put to identification parade before the Judicial Magistrate after taking their custody from police station and covering distance of nearly 15 kilometers, but nothing was brought on the record to show that necessary precautions to secure and hide the identity of the arrested accused from the witnesses before putting them to identification parade test, were adhered to---Even otherwise, the memo. of identification parade revealed that the accused and the other two arrested accused had not been identified with reference to any role played by them during the incident, which should have been specific with their role so as to complete the picture of the crime and reinforce the case against the accused for commission of the crime, and if a witness was able to pick out an accused person amongst the crowd it did not prove that he had identified that accused person as having taken part in the subject crime, rather it might merely mean that the witness happened to know that accused person by sight---Three injured, witnesses, Investigating Officer and mashir did not identify the accused in the Trial Court during their evidence---Hence, the identification parade in question, which could at the best be used as a corroboratory piece of evidence, was of no help to the prosecution; neither the Judicial Magistrate in whose supervision nor anyone among the two mashirs in whose presence the alleged identification parade was carried out, had been examined by the prosecution to substantiate the subject identification parade---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Ss. 17(2), 17(3) & 17(4)---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah---Appreciation of evidence---Non-production of police daily diary---Consequential---Accused was charged that he along with his co-accused persons made firing upon the complainant party, due to which nephew of the complainant died whereas his brother became injured---Daily diaries relating to the momentum of the Investigating Officer and his other staff from police station to different places namely, the Hospital, the place of incident for its inspection, CMC hospital for inspecting the injuries of injured, the other police station for the purpose of arrest of the accused, and the Court of Judicial Magistrate for the purpose of identification parade etc. and their return to the police station from the said places, were neither shown to have been made in the relevant daily diary register nor were produced in evidence---Daily diaries were essential to be adduced in evidence so as to establish the momentum of the police towards the places where the proceedings were shown to have been conducted and non-production thereof would adversely reflect upon the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 324---Offences Against Property (Enforcement of Hadood) Ordinance (VI of 1979), Ss.. 17(2), 17(3) & 17(4)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, haraabah---Appreciation of evidence---Examination of accused---Incriminating material not put to accused during his examination order S.342 Cr.P.C---Accused was charged that he along with his co-accused persons made firing upon the complainant party, due to which nephew of the complainant died whereas his brother became injured---Statement of the accused recorded under S.342 of the Code depicted that the incriminating material i.e. the memo. of identification parade, in which the accused was shown to have been picked up by complainant and wintnesses, the medical evidence including postmortem report and MLCs revealing unnatural death of deceased and injuries to injured person caused by firearm, inquest report, danistnama, memos. of inspection of dead body, place of incident, recovery of four empty shells of .30 bore pistol and blood stained earth etc. from the place of incident, blood stained clothes of the deceased, arrest of the accused persons, injuries to injured, Forensic Science Laboratory Report relating to the blood stained earth and clothes of the deceased etc. were not put to the accused to extract his explanation thereon during his examination under S.342 of the Code---Accused was to be confronted with each and every piece of evidence and circumstance, with specific and definite details thereof, so as to afford him all possible opportunities to explain the charge and the circumstances of the case---Where any important and material piece of evidence is not put to the accused and an opportunity is not given to him to explain that, such evidence cannot be used for conviction of the accused---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt---Principle---Where a single circumstance creates reasonable doubt in a 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.

Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Ilyas v. The State 1997 SCMR 25 rel.

Mrs. Maheen Ansari for Appellant.

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

Date of hearing: 2nd June, 2022.

Judgment

Khadim Hussain M. Shaikh, J.---Appellant Abdul Razzak alias Bagro son of Atta Muhammad Chandio has called in question judgment dated 10.12.2020, passed by the learned Additional Sessions Judge-II, Kamber, District Kamber/Shahdadkot in Sessions Case No.308 of 2010 re-The State v. Akhtiar Kalhoro and others, emanating from Crime No.136 of 2010 registered at Police Station Shahdadkot for Offences under Sections 17(2), 17(3) and 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance, 1979, ("The Ordinance"), whereby appellant Abdul Razzak alias Bagro ("The appellant") has been convicted for offences under Section 302 (b) of The Pakistan Penal Code, 1860 (XLV of 1860) ("The Penal Code") for committing murder of Amanullah son of Mehrab Mugheri ("The deceased") and sentenced to suffer rigorous imprisonment for life as Tazir and to pay Rs.500,000/- (five lac) as compensation to the legal heirs of the deceased under the provisions of Section 544-A of The Code of Criminal Procedure, (Act V of 1898) ("The Code") and in case of default of payment to further undergo S.I for three years more; and, the appellant has also been convicted for offence under Section 397 of The Penal Code and sentenced to suffer rigorous imprisonment for seven years as Tazir and to pay compensation of Rs.200,000/- (two lac) to the victim/injured PW Mehar and in case of default of payment thereof he is to undergo simple imprisonment of 18 months more. The above sentences were ordered to run concurrently with benefit of Section 382-B of The Code.

1. Briefly, the facts of the case are that on 31.05.2010, at about 1600 hours complainant Mehar Ali son of Sain Rakhio Mugheri appeared at Police Station Shahdadkot and lodged the subject FIR, stating therein that on 31.05.2010 he, his brother Mehrab and his nephew (the deceased), on one motorcycle driven by Amanullah and whereas his relative Khamiso son of Shadi Khan Mugheri on another motorcycle, while were returning from Shahdadkot city to their village, at about 1245 hours when they reached near the watercourse of Sher Muhammad Jarwar, on the road leading from Shahdadkot towards Garhi Khero, they saw three unknown persons standing there, with one motorcycle, who on seeing again would be identified by them. Of them, one person was having Kalashnikov and the rest two were armed with pistols, who aiming their weapons at the complainant party, stopped their motorcycles. One culprit, who was having Kalashnikov, robbed mobile phone from Amanullah (the deceased) and on the resistance to snatching of motorcycle, the rest two culprits, who were armed with pistols, made fires from their pistols at the complainant's brother Mehrab and his nephew Amanullah, who fell down raising cries. Then the culprits drove away motorcycles including the complainant party's motorcycle through Shahpur Jamali Link Road. Then the complainant found Mehrab lying injured, having two firearm injuries on his right leg near knee, while Amanullah was lying unconscious, having firearm injury on right side of his chest. The complainant party then took both of the injured persons to Taluka hospital Shahdadkot, where after first aid, they were referred to CMC hospital Larkana for further treatment, but on their way to CMC hospital Larkana Amanullah Mugheri succumbed to his injuries at about 03:00 p.m. Then the complainant sent injured Mehrab to CMC hospital Larkana for treatment and took dead body of deceased Amanullah to Taluka hospital Shahdadkot and then leaving his dead body there he appeared at police station Shahdadkot and lodged the subject FIR. Three accused namely Akhtiar, Abdul Khalique and appellant Abdul Razzak alias Bagro were arrested, who after usual investigation, were sent-up with the report under Section 173 of The Code to face their trial. However, on 09.08.2010, co-accused Akhtiar and Abdul Khalique were murdered in the Court premises of the Court of Additional Sessions Judge Shahdadkot in police custody when they were brought there for their trial and such FIR was registered against the culprits of that crime. In such view of the matter, a formal charge was framed only against Abdul Razzak alias Bagro (the appellant) vide Ex.3 to which he pleaded not guilty and claimed his trial vide his plea Ex.4.

2. In order to prove its case, the prosecution examined as many as 08 (eight) witnesses, namely ASI Ayaz Chandio, the author of the FIR at Ex.05, who produced the FIR at Ex.05/A; Tapedar of Tapa/Deh Pathan namely Muhammad Paryal at Ex.06, who produced sketch of place of incident at Ex.06/A; complainant Mehar Ali at Ex.07; injured Mehrab at Ex.08, who produced the form of identification parade at Ex.08/A; mashir Shah Muhammad at Ex.09, who produced memo. of inspection of dead body at Ex.09/A, memo. of the place of incident Ex.09/B, memo. of the inspection of injuries of injured Mehrab Ex.09/C and the memo. of arrest of the accused Abdul Khalique, Akhtiar and Abdul Razzak (the appellant) at Ex.09/D; Investigating Officer ASI Muhammad Khalid Gopang at Ex.10, who verified the memos. Ex.09/A to 09/D, and produced the Lash Chakas Form and inquest report at Ex.10/A and Ex.10/B; Corpse Bearer P.C Muhammad Ranjhan at Ex.12, who produced the receipt of handing over dead body of the deceased at Ex.12/A and MLO Dr. Muhammad Idress at Ex.13, who produced the provisional and final MLCs of injured Mehrab at Exs.13/A and 13/B, provisional MLC of the deceased and his postmortem report at Ex.13/C and Ex.13/D as PW 01 to 08 respectively. Then, the side of prosecution was closed vide statement at Ex.14 and whereafter the statement of the appellant under Section 342 of The Code was recorded, wherein he denying the prosecution allegations, professed his innocence and his false implication by the complainant party, further contending therein that on 31.05.2010 he was arrested by Miro Khan Police, who falsely implicated him in Crime No.55 of 2010 under Sections 324, 353 of The Penal Code and later on he was falsely implicated in this case on the same day at P.S Shahdadkot. Accused of this case namely Akhtiar and Abdul Khalique alias Arbelo have been murdered by the complainant party in the Court premises of the Additional Sessions Judge Shahdadkot on 09.08.2010 in police custody and such FIR was registered against them he produced the copy of FIR No.55 of 2010 of P.S Miro Khan and he claims to have been acquitted from that case by the learned 1st Additional Sessions Judge Kamber; he also produced certified copy of the FIR No.176 of 2010 of P.S Shahdadkot under Section 353 of The Penal Code he, however, neither examined himself on oath nor did he produce any person as his defence witness. At the conclusion of trial and after hearing the parties' counsel, the learned trial Court has convicted and sentenced the appellant vide impugned judgment dated 10.12.2020 as discussed in paragraph-I supra.

3. Having felt aggrieved by the impugned judgment dated 10.12.2020, the appellant has preferred the captioned Jail Criminal Appeal, while the learned Prosecutor General of Sindh has filed the captioned Criminal Revision Petition for enhancement of the sentence by converting the sentence of life imprisonment awarded to the appellant into death sentence.

4. The learned Counsel for the appellant, who also represents him in subject Criminal Revision Petition, has mainly contended that the appellant is innocent and he has been falsely implicated in the subject case; that the name of the appellant does not find place in the FIR; that the identification parade of the appellant is illegal and managed one; that there are material contradictions in the evidence led by the prosecution, and, that the prosecution has failed to prove its case against the appellant beyond reasonable doubt. The learned counsel has prayed for acquittal of the appellant and for dismissal of the Criminal Revision Petition.

5. Learned Additional Prosecutor General, Sindh has mainly contended that the prosecution by examining 08 witnesses and producing all the necessary documents including postmortem report, MLCs, memos. of place of vardhat, recovery of empties, danistnama, sketches, arrest of the appellant and blood stained clothes of the deceased etc, has proved its case against the appellant beyond any shadow of doubt, per learned Additional Prosecutor General, Sindh, the learned trial Court has rightly convicted the appellant, but disputing the sentence of imprisonment for life awarded to the appellant, the learned Additional Prosecutor General, Sindh has prayed for dismissal of the instant appeal and enhancement of the sentence by converting imprisonment of life awarded to the appellant into death penalty.

6. We have considered the submissions of learned counsel for the parties and have gone through the evidence brought on the record with their assistance.

7. From a perusal of the record, it would be seen that the appellant was not nominated in the FIR. The culprits, who committed the subject offence, were not known to the complainant and other two alleged eye-witnesses namely injured Mehrab and Khamiso. The descriptions such as features and physiques etc of the culprits were not given in the FIR. Complainant Mehar Ali in his FIR stated that one culprit, who was equipped with Kalashnikov, snatched mobile phone from his nephew Amanullah, and on the resistance of his brother Mehrab and nephew Amanullah to snatching of their motorcycle, the two culprits, who were armed with pistols, made fires from their pistols at Amanullah and Mehrab; in the joint identification parade test shown to have been carried out before the learned Civil Judge and Judicial Magistrate-I Shahdadkot on 05.06.2010, the complainant and two other alleged eye-witnesses namely Mehrab and Khamiso allegedly picked out the appellant and two other co-accused namely Abdul Khalique and Akhtiar as the culprits of the subject crime, however, they neither attributed any specific role in the commission of the offence to the appellant or even to the two other arrested co-accused named above nor did they state about any weapon carried by any of them at the time of incident, but when the complainant appeared in witness box, he deposed that "the culprit, who was armed with Kalashnikov, robbed away one Nokia mobile phone from Amanullah; the culprits also tried to rob bike from Amanullah, on which Amanullah resisted whereupon accused Akhtiar armed with pistol made fire from his pistol upon my nephew Amanullah on his chest; accused Akhtiar also made two fires upon the knee of my brother Mehrab" and that "Akhtiar and Abdul Razzak had TT pistols and accused Abdul Khalique had KK", besides, the complainant there were two other alleged eye-witnesses of the occurrence namely Mehrab and Khamiso; of them alleged eye-witness PW Khamiso, having been given up, was not examined by the prosecution and whereas the rest alleged eye-witness injured Mehrab, who appeared as PW.4 Ex.8 deposed that "they (the culprits) robbed away one mobile from my son. They also tried to rob the bike from my son Amanullah. My son Amanullah resisted, on which accused Akhtiar armed with pistol made fire from his pistol upon my son Amanullah, who receiving the fire shot on left side of his chest, fell down. Accused Akhtiar also made two fires upon me, which I received on my right knee. I also fell down. Thereafter, accused Akhtiar took our bike and went away", thereby both the aforesaid alleged eye-witnesses examined by the prosecution have not only contradicted the prosecution version as set-out in the FIR, but they have also made a vain attempt to improve the prosecution case qua the contents of the FIR Ex.5/A and memo. of identification parade Ex.7/A, obviously with dishonest intention so as to bring the prosecution case in line with the medical evidence, which revealed one injury on the person of deceased Amanullah and two injuries on the person of injured Mehrab, that rendered the credibility of both the aforesaid examined alleged eye-witnesses doubtful and no explicit reliance can be placed upon their evidence in view of the well settled law. Reliance in this context is placed on the case of Akhtar Ali and others v. The State (2008 SCMR 6), wherein the Hon'ble Supreme Court of Pakistan has held that:-

"It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805."

In case of Muhammad Mansha v. The State [2018 SCMR 772], the Hon'ble Supreme Court of Pakistan has held that:-

Once the Court comes to the conclusion that the eye-witnesses had made dishonest improvements in their statements then it is not safe to place reliance on their statements. It is also settled by this Court that when ever a witness made dishonest improvement in his version in order to bring his case in line with the medical evidence or in order to strengthen the prosecution case then his testimony is not worthy of credence. The witnesses in this case have also made dishonest improvement in order to bring the case in line with the medical evidence (as observed by the learned High Court), in that eventuality conviction was not sustainable on the testimony of the said witnesses. Reliance, in this behalf can be made upon the cases of Sardar Bibi and another v. Munir Ahmad and others (2017 SCMR 344), Amir Zaman v. Mahboob and others (1985 SCMR 685), Akhtar Ali and others v. The State (2008 SCMR 6), Khalid Javed and another v. The State (2003 SCMR 1419), Mohammad Shafiqe Ahmad v. The State (PLD 1981 SC 472), Syed Saeed Mohammad Shah and another v. The State (1993 SCMR 550) and Mohammad Saleem v. Mohammad Azam (2011 SCMR 474).

1. Furthermore, injured Mehrab, who could be termed to be a star witness for the prosecution, Investigating Officer ASI Muhammad Khalid Gopang and mashir Shah Muhammad, they all did not identify appellant Abdul Razzak in the trial Court when they recorded their evidence on 31.10.2019 and 31.07.2019 respectively, for, injured Mehrab and Investigating Officer stated that "accused present in Court is Akhtiar", who in fact was appellant Abdul Razzak and not Akhtiar, rather the latter, who was co-accused in this case, was already murdered along with other co-accused Abdul Khalique in the Court premises of the Court of Additional Sessions Judge Shahdadkot as far as back on 09.08.2010 in police custody i.e. nine years prior to their evidence and whereas Shah Muhammad, who allegedly acted as mashir for several purposes including the mashir of arrest, stated that "the accused present in the Court is same, but I do not know his name".

2. It further reveals that although the prosecution claimed that the appellant and his two co-accused namely Abdul Khalique and Akhtiar were arrested by police of Miro Khan P.S on the same day at 1330 hours i.e. shortly after the subject incident occurred at 1230 hours as is evident from the FIR No. 136 of 2010 of P.S Shahdadkot involved in this case and FIR No.55 of 2010 of P.S Miro Khan produced by the appellant through his statement under Section 342 of The Code, but nothing has been brought on the record to show if the mobile and motorcycle, which were allegedly snatched from deceased Amanullah and others, were recovered from any of the above arrested accused and even crime weapons allegedly used in the commission of the offence were not shown to have been recovered from them (the accused) despite their having remained in continuous custody under remand after their arrest upto 16.06.2010 when the challan was submitted; it is also strange enough that four empties of .30 bore pistol collected from the place of incident vide memo. of inspection Ex.9/B, were not shown to have been sent to ballistic expert for his expert opinion, for, neither any FSL report in this respect was produced in evidence by the prosecution nor did any official witness including Investigating Officer ASI Muhammad Khalid Gopang state about sending the aforesaid article to FSL; if the Investigating Officer had any impression that the aforesaid article might be the corroborative piece of circumstantial evidence in the instant case, he should have sealed the same forthwith and handed over the same to some responsible police official of the police station for safe custody, but it never happened as the same were left somewhere without taking any care for getting them analyzed from the ballistic expert and as such nothing is brought on the record to show that the alleged four empty shells, secured from the place of incident, were fired from two different weapons as claimed by the complainant in the FIR or they were fired from one weapon as claimed by the complainant and injured Mehrab in their evidence.

3. Patently, the prosecution case mainly rested on the identification parade of the appellant purportedly held on 05.06.2010 before the learned Civil Judge and Judicial Magistrate-I Shahdadkot, due to the fact that the culprits, who committed the subject offence, were not known to the complainant and other two alleged eye-witnesses injured Mehrab and Khamiso (not examined); their descriptions such as their features and physiques etc were also not given in the FIR; the appellant and his two co-accused Abdul Khalique and Akhtiar were arrested by the police of Miro Khan police station in another case on the same day of incident i.e. 31.05.2010; complainant Mehar Ali and injured Mehrab claimed to have visited police station Miro Khan along with other alleged eye-witness Khamiso (not examined) to see the arrested accused including the appellant 4/5 days before the test identification parade in question held on 05.06.2010 as is revealed from their evidence, in that the complainant has deposed that "I came to know about the arrest of the accused on the same day of the incident. On the same day I along with Mehrab and Khamiso including police arrived at P.S"; injured Mehrab also admitted his visiting police station Miro Khan for the purpose of seeing the arrested accused, but he contradicting the complainant, stated that on the following day of the incident he along with Mehar (the complainant) and Khamiso had visited the police station Miro Khan, deposing that "we came to know regarding the arrest of the accused on the same day; I had visited the P.S Miro Khan on the next day of the incident along with Mehar and Khamiso; according to the complainant they went to police station Miro Khan in a police mobile and whereas per injured Mehrab they went to police station by hiring a private vehicle from Larkana city, but no one among the staff of police station Miro Khan was either cited as witness or was examined by the prosecution; even the official witnesses examined by the prosecution did not state about the complainant's and/or other prosecution witnesses' visiting police station Miro Khan; the Investigating Officer stated that "I had issued notice to complainant one day prior to the identification parade" i.e. one day prior to the formal arrest of the accused including the appellant in this case and despite having knowledge about the arrest of the appellant and two other co-accused namely Abdul Khalique and Akhtiar by the police of Miro Khan P.S, they were not shown arrested by the police of P.S Shahdadkot in this case for four days and it was on 05.06.2010 at 0920 hours when their formal arrest was shown by Investigating Officer ASI Muhammad Khalid Gopang vide mashirnama of arrest Ex.9/D; the prosecution case was that all the three accused named above including the appellant were arrested from judicial lockup at P.S Miro Khan vide mashirnama of arrest Ex.9/D as was deposed by Investigating Officer Muhammad Khalid Gopang, but mashir of arrest namely Shah Muhammad Mugheri did not state about arrest of the three accused named above and instead he without taking name of any accused stated that "on 05.06.2010 the ASI had again called me and co-mashir Muhammad Umar at the Shahdadkot P.S and then we went to judicial lockup Miro Khan, where, the accused was confined in another case. The ASI had arrested him and prepared the imagine mashirnama in our presence"; the appellant and two above named co-accused were shown to have been put to identification parade before the learned Civil Judge and Judicial Magistrate-I Shahdadkot after taking their custody from police station Miro Khan and covering distance of nearly 15 kilometers, but nothing was brought on the record to show that necessary precautions to secure and hide the identity of the arrested accused from the PWs before their putting into identification parade test, were adhered to; even otherwise, the memo. of identification parade Ex.8/A reveals that the appellant and the other two arrested accused (now dead) had not been identified with reference to any role played by them during the incident, which in our humble view, should have been specific with their role so as to complete the picture of the crime and reinforce the case against the accused for commission of the crime, and if a witness is able to pick out an accused person amongst the crowd it does not prove that he had identified that accused person as having taken part in the subject crime, rather it might merely mean that the witness happens to know that accused person by sight; moreover, the material evidence of the identification is the evidence of witnesses including the Magistrate, under whose supervision and mashirs, in whose presence such identification parade test was carried out, given in the Court as to how and under what circumstances the witnesses came to pick out a particular accused person and the details of the part which that accused took in the commission of crime in question for the simple reason that the statement made by any witness at an identification parade could be used to corroborate his evidence given in the Court. Three witnesses namely injured Mehrab, Investigating Officer ASI Muhammad Khalid Gopang and mashir Shah Muhammad did not identify the appellant in the trial Court during their evidence as discussed supra and hence the identification parade in question, which could at the best be used as a corroboratory piece of evidence, was of no help to the prosecution; neither the learned Magistrate in whose supervision nor anyone among the two mashirs namely Muhammad Ilyas and Raheem Buksh, in whose presence, the alleged identification parade was carried out, have been examined by the prosecution to substantiate the subject identification parade; PWs namely complainant Mehar Ali and injured Mehrab claimed to have visited Police Station Miro Khan for the purpose of seeing the accused including the appellant on their arrest i.e. 4/5 days prior to the alleged identification parade test, conducted before the learned Magistrate on 05.06.2010. In such view of the matter, the possibility that the police had got the accused including the appellant identified by the witnesses prior to the identification parade test cannot be ruled out and under these circumstances, the aforesaid unsubstantiated joint identification parade, suffering from the illegalities and infirmities discussed supra, has got no evidentiary value.

4. Apart from the above, there are also several other material and glaring contradictions in the evidence led by the prosecution coupled with numerous infirmities and admissions, adversely reflecting upon the prosecution case e.g. the complainant in his evidence has deposed that "on the same date, I brought ASI Muhammad Saleh Gopang at Taluka Hospital Shahdadkot where he inspected dead body of my nephew Amanullah and prepared such memo. of inspection of dead body and inquest report in presence of mashirs Shah Muhammad Mugheri and Muhammad Umar Mugheri. Thereafter, I also took ASI Muhammad Saleh Gopang to place of incident and on my pointation, above named ASI inspected the place of incident in presence of same mashirs and he secured 04 empties of pistol from the spot and above named ASI also secured the blood stained earth and sealed the same separately. Thereafter, ASI Muhammad Saleh prepared such memo on the spot in presence of above named mashirs at 1645 hours. Thereafter, I along with ASI Muhammad Saleh Gopang and same mashirs proceeded to Civil Hospital Larkana, where he inspected injuries of my brother Mehrab in presence of same mashirs and prepared such memo", but according to prosecution the Investigating Officer, who had conducted all the aforesaid proceedings, was ASI Muhammad Khalid appeared as PW.6 and not Muhammad Saleh and whereas mashir Shah Muhammad did not take name of the Investigating Officer, and instead stated that "complainant Mehar Ali along with one Sobedar who was by caste Gopang came at there (Taluka Hospital Shahdadkot); ASI Gopang had inspected the dead body; ASI had also inspected the place of incident; on same date at 07:00 p.m. we went to Civil Hospital Larkana where ASI inspected the injuries of Mehrab"; while injured Mehrab did not state about inspection of his injuries and preparation of mashirnama thereof by the police; Investigating Officer ASI Muhammad Khalid stated that "complainant was accompanied with me while I was going to Chandka hospital at Larkana where I had inspected the injuries of the victim"; then he changing his version stated that "the complainant had arrived along with mashirs at Hospital at Larkana from Shahdadkot" and then he again changing his stances stated that "the mashirs of injuries had arrived at hospital at Larkana through separate vehicle", while the complainant did not state about his accompanying the Investigating Officer to Larkana hospital; Investigating Officer ASI Muhammad Khalid stated that "on the same date at about 1730 hours, we went to the place of incident along with the complainant and same mashirs, where, I had inspected the place of incident by preparing the mashirnama", while complainant Mehar Ali stated that "I took ASI Muhammad Saleh Gopang to the place of incident and on my pointation, above named ASI inspected the place of incident in presence of mashirs; ASI Muhammad Saleh prepared such memo. on the spot in presence of above named mashirs at 1645 hours", and whereas the record reveals that mashirnama of place of vardhat Ex.9/B was prepared on 31.05.2010 at 1730 hours while three memos of inspection of dead body, lash chakas form and danistnama Ex.9/A, Ex.10/A and Ex.10/B respectively, were shown to have been prepared at 1645 hours at Taluka Hospital Shahdadkot; the postmortem examination on the dead body of the deceased was started at 05:00 p.m. and it was finished at 06:30 p.m. and after completing all the formalities I.O ASI Muhammad Khalid set-out for the inspection of the place of the incident which was at the distance of 6/7 kilometers from Taluka Hospital, Shahdadkot and after inspecting the place of incident, he completed all the formalities, yet the memo. of place of incident Ex.9/B was shown to have been prepared at 1730 hours i.e. within 45 minutes from the inspection of the dead body of deceased Amanullah at Civil Hospital Shahdadkot, which apparently is incompatible with the timings, distances, ranges of the places and circumstances of the case; per prosecution the sole close relative of the deceased available there, was his uncle namely complainant Mehar Ali, whose leaving hospital during the postmortem on the dead body of his nephew for inspection of the place of incident located at the distance of more than six kilometers is also incomprehensible; according to Investigating Officer ASI Muhammad Khalid he had prepared lash chakas form Ex.10/A and inquest report Ex.10/B in presence of mashirs Shah Muhammad and Muhammad Umar by obtaining their LTIs thereon, but mashir Shah Muhammad did not state about preparation of lash chakas form and inquest report in his evidence, while the other mashir Muhammad Umar was not examined by the prosecution; per Investigating Officer he had recorded further statement of the complainant, but the latter did not state about recording of his further statement during the investigation, which even otherwise was not the prosecution case; according to the Investigating Officer the statements of the witnesses under Section 164 of The Code were recorded after recording their statements under Section 161 of The Code at P.S, but in fact neither the statements under Section 164 of The Code of PWs were recorded or produced in evidence nor did the PWs state about recording of their statements under Section 164 of The Code; according to mashir Shah Muhammad, the injuries of the victim were seen by him in open condition prior to their bandage, which is negated by the fact that mashir Shah Muhammad had first time seen the injuries of injured Mehrab at CMC hospital Larkana at 08:30 p.m. (night), where the latter after treatment and bandages etc was hospitalized, as is even evident from the evidence of the said mashir Shah Muhammad, who deposed that "I am mashir of this case. On 31.05.2010, I was available in my village, where I have come to know regarding the incident in between our relatives and accused. Then I came to the P.S and then we left to the Taluka Hospital Shahdadkot, where we found the dead body of Amanullah Mugheri, which was in the hospital…..On the same date, at about 07:00 p.m. we went to Civil Hospital Larkana, where, the ASI had inspected the injuries of Mehrab in our presence; according to Investigating Officer he produced the accused including the appellant before Civil Judge and J.M-I Shahdadkot where PWs Mehrab and Khamiso were brought, who identified the accused in open Court in the identification parade, but he did not state about the identification of the accused through complainant Mehar Ali although according to the prosecution case, the identification of the accused through complainant Mehar Ali was also shown to have been made; per Investigating Officer he recorded statements of the witnesses under Section 161 of The Code at police station on the same day of identification parade, which was held on 05.06.2010 i.e. after 5 days of the incident and whereas according to injured Mehrab, the police recoded his statement under Section 161 of The Code at Civil Hospital Larkana on the same day of the incident, but complainant Mehar Ali and mashir Shah Muhammad did not state about recording of the statement of injured Mehrab either at Police Station as claimed by the Investigating Officer or even in the hospital at Larkana as claimed by injured Mehrab; according to injured Mehrab, the complainant and Khamiso accompanied with them in the ambulance and no one else from their relatives was accompanied with them and whereas per complainant he was accompanied with so many relatives from Shahdadkot to Larkana and vice-versa from Larkana to Shahdadkot in ambulance; Shah Muhammad, who acted as mashir for several purposes, which included preparation of mashirnama of inspection of dead body of deceased Amanullah, inquest report, danistnama, memo. of clothes of deceased Amanullah, inspection of place of incident, inspection of injuries on the person of injured Mehrab and arrest of three accused including the appellant etc, appeared as PW.5 at Ex.9, and stated that "I do not remember that who had inspected the dead body either by me or any other; it is correct to suggest that blood was oozing from the deceased; I do not remember whether mark of bullet was on collar or not; I do not remember whether I.O himself had secured the blood stained earth; I do not remember whether any writing was mentioned on empty shells or not; the concerned police officer had obtained my signatures on papers, but I do not remember whether same were written or blank", meaning thereby he was not sure whether the mashirnamas were prepared before he put his signatures on the papers, whereon the mashirnamas were prepared so also about all the proceedings shown to have been conducted by the Investigating Officer in presence of the said mashir Shah Muhammad and thus he has not supported the prosecution case; furthermore, daily diaries relating to the momentum of the Investigating Officer and his other staff from Police Station to the places namely Taluka Hospital Shahdadkot, the place of incident for its inspection, CMC hospital Larkana for inspecting the injuries of injured Mehrab, the Police Station Miro Khan for the purpose of arrest of the accused, and the Court of learned Judicial Magistrate Shahdadkot for the purpose of identification parade etc and their return to the Police Station from the aforesaid places, were neither shown to have been made in the relevant daily diary register nor were produced in evidence, although the same were essential to be adduced in evidence so as to establish the momentum of the police towards the places where the proceedings discussed supra, were shown to have been conducted and non-production thereof would adversely reflect upon the prosecution case.

5. As is apparent from the face of record injured Mehrab and Amanullah were firstly brought at Taluka hospital Shahdadkot and then both of them after examination and first aid were referred to CMC hospital Larkana for treatment etc by PW.8 Dr. Muhammad Idrees Shaikh, Medical Officer Civil Hospital Shahdadkot and while both injured Mehrab and Amanullah together with complainant etc in Ambulance, were on their way to CMC hospital Larkana, one of the injured persons namely Amanullah succumbed to his injuries, but neither the entries relating to the information about the incident given to the police and for issuance of letter for treatment of the injured persons namely Amanullah and Mehrab to the Medical Officer Taluka hospital Shahdadkot, were shown to have been kept in daily diary register at Police Station Shahdadkot nor did prosecution bring anything on the record to denote that any letter for examination, treatment and certificates of the injured persons named above was issued by the police to the Medical Officer Taluka hospital Shahdadkot, who has also not produced such letter in his evidence and it seems as if PW.8 Dr. Muhammad Idrees the Medical Officer Taluka hospital Shahdadkot had dealt with the case without intervention of the police and when he came in witness box he attempted to improve the case by deposing that "PC Ranjhan was available with the injured persons at Hospital", which was negated by the complainant by stating that "no police arrived at Shahdadkot hospital", which is further negated by the fact that PC Ranjhan, who acted as corpse bearer first time appeared before the Medical Officer after the dead body of deceased Amanullah was brought as is reflected from his evidence wherein he stated that "I am corpse bearer in this case. On 31.05.2010, I was posted as P.C at the P.S Shahdadkot. On the same day, the ASI Muhammad Khalid Gopang handed over to me the dead body of deceased Amanullah son of Mehrab Khan Mugheri for conducting his postmortem" and that is also evident from the record, which reveals that the mashirnama of injuries of injured Mehrab produced at Ex.15 was prepared on 31.05.2020 at 2030 hours (08:30 p.m.) in CMC hospital Larkana and whereas no mashirnama of injury on the person of Amanullah, who earlier was injured and after his examination and referral, died on the way to CMC hospital Larkana, was prepared by the police.

6. A glance at the statement of the appellant recorded under Section 342 of The Code Ex.15 depicts that the incriminating material i.e. the memo. of. identification parade, in which the appellant was shown to have been picked up by complainant Mehar Ali, injured Mehrab and Khamiso, the medical evidence including postmortem report and MLCs revealing unnatural death of deceased Amanullah and injuries to injured person Mehrab caused by firearm, inquest report, danistnama, memos. of inspection of dead body, place of incident, recovery of four empty shells of .30 bore pistol and blood stained earth etc from the place of incident, blood stained clothes of the deceased, arrest of the accused including the appellant and injuries to injured PW Mehrab, FSL report relating to the blood stained earth and clothes of the deceased etc were not put to the appellant to extract his explanation thereon during his examination under Section 342 of The Code, although according to law the accused is to be confronted with each and every piece of evidence and circumstance, with specific and definite details thereof, so as to afford him all possible opportunities to explain the charge and the circumstances of the case and where any important and material piece of evidence is not put to the accused and an opportunity is not given to him to explain that, such evidence could not be used for conviction of the accused. In such an eventuality either that piece of evidence is to be excluded from the consideration or the case is to be remanded to the trial Court for re-examination of the accused under Section 342 of The Code.

7. Manifestly, the aforesaid material and glaring contradictions, infirmities, admissions of the PWs adverse to the prosecution case, and dishonest and deliberate improvements in the statements of the PWs during the trial to strengthen the prosecution case, which did go to the root of the case, rendering it highly doubtful, were not at all attended to by the learned trial Court while passing the impugned judgment dated 10.12.2020, convicting and sentencing the appellant, although the learned trial Court was obliged to take into consideration the material placed before it for arriving at the conclusion as to whether a fact was proved or not. And, thus, we are of the humble view that the impugned judgment dated 10.12.2020 of the trial Court suffers from mis-reading and non-reading of the evidence and the conviction and sentence awarded to the appellant cannot sustain, as the prosecution has miserably failed to prove its case against the appellant beyond a reasonable doubt; it needs no reiteration that a single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession, but as matter of right. Reliance in this context is placed on the case of Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), wherein the Hon'ble Supreme Court of Pakistan has held that:-

"16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt end this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10."

In the case of MUHAMMAD MANSHA supra, the Hon'ble Supreme Court of Pakistan has observed that:-

"4. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v. The State (2009 SCMR 230) and Muhammad Zaman v. The State (2014 SCMR 749).

In the case of Muhammad Akram v. The State (2009 SCMR 230), the Hon'ble Supreme Court of Pakistan has held that:-

"It is an axiomatic principle of law that in case of doubt, the benefit thereof must accrue in favour of the accused as matter of right and not of grace. It was observed by this Court in the case of Tariq Pervez v. The State 1995 SCMR 1345 that for giving the benefit of doubt, it was not necessary that there should be many circumstances creating doubts. If there is circumstance which created reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of doubt not as a matter of grace and concession but as a matter of right."

2024 Y L R 2147

[Federal Shariat Court]

Before Iqbal Hameedur Rehman, C.J and Khadim Hussain M. Shaikh, J

Khayal Bacha---Appellant

Versus

Ijaz Hussain and another---Respondents

Criminal Appeal No. 02-I of 2024, decided on 12th June, 2024.

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

----Ss. 302(b), 427, 468 & 471---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act, (XXIII of 2013), S. 15---Qatl-i-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon---Appreciation of evidence---Implication on basis of supplementary statement---Accused was charged for committing murder of the brother of a witness during haraabah---As per record, it was an unseen occurrence---Crime report was lodged against un-identified assailants---After lapse of seven days of the occurrence, on 23rd of February, 2023, brother of the deceased recorded statement under S.161, Cr.P.C, wherein he charged unknown assailants for murder of his brother---However, Such witness implicated the accused on 6th March, 2023, by way of supplementary statement recorded under S.164, Cr.P.C, for commission of murder of deceased by the accused and snatching a vehicle which was abandoned on a Motorway---Admittedly, the said supplementary statement was not exhibited in evidence---Thus, implication of accused by way of supplementary statement on behalf of brother of the deceased could not advance the plea of prosecution even to connect the said accused in the commission of crime---Said statement had no legal value and sanctity being hearsay, as such nomination of the accused in supplementary statement could not be taken into consideration---Appeal against conviction was allowed, in circumstance.

Muhammad Azam and another v. Khalid Mehmood and another 2013 PCr.LJ 36 and Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss. 302(b), 427, 468 & 471---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon---Appreciation of evidence---Last seen evidence---Accused was charged for committing murder of the brother of a witness during haraabah---In this case, statement of a witness, who had last seen the deceased, with the accused was heavily relied upon on behalf of the prosecution---Though said witness had stated that he was working as tourist guide yet he could not explain his presence at parking area of the hotel, on the day of occurrence where he along with a witness (not produced) and others had last seen the deceased negotiating for sale and purchase of vehicles---Statement of said witness under S.161, Cr.P.C, was recorded eleven days after the occurrence on 27.02.2023 which reflected that he kept mum and did not disclose the fact of last seeing deceased in the company of the accused---Said witness also got recorded his supplementary statement under S.164, Cr.P.C, on 06.03.2023 but the same was not exhibited in evidence---Delay of eleven days in recording his statement under S.161, Cr.P.C, without any plausible explanation casted serious doubts on veracity of his statement---Even if, testimony of said witnesswas believed as gospel truth, there was gap of more than 9 hours between last seeing the deceased and his death, which suggested that possibility of deceased being killed by someone else could not be ruled out---Even otherwise evidence of last seen requires corroboration which by itself is not sufficient to sustain charge of murder against the accused---Appeal against conviction was allowed, in circumstance.

Abdul Khaliq v. The State 1996 SCMR 1553, Ghulam Mustafa alias Ziau v. The State PLD 1991 SC 718 and Rehmat alias Rahman alias Waryam alias Badshah v. The State PLD 1977 SC 515 rel.

(c) Criminal trial---

----Call Data Record (CDR)---Scope---Production of Call Data Record in the absence of transcripts of the calls or end to end audio recording could not be considered---Call Data Record in absence of any concrete material is not conclusive piece of evidence to ascertain the guilt or otherwise of the accused.

Mian Khalid Perviz v. The State through Special Prosecutor ANF and another 2021 SCMR 522 and Mst. Asiya v. The State 2023 SCMR 383 rel.

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

----Ss. 302(b), 427, 468 & 471---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon---Appreciation of evidence---Test Identification Parade---Lapses---Accused was charged for committing murder of the brother of a witness during haraabah---To prove the culpability of the accused, prosecution relied upon proceedings of identification parade, conducted by Judicial Magistrate, wherein three witnesses identified the accused---Magistrate admitted in his cross-examination that accused raised objection that he was shown to witnesses prior to identification parade but the Magistrate did not further probe the matter nor did he give any finding on the said objection---Magistrate also admitted on 09.03.2023 that the accused, who was un-muffled, was produced in his Court for recording confessional statement and remained in the Court with him for sufficient time for pondering---Hence, opportunity to see the accused by the witnesses, who were also stated to be in the Court premises on 09.03.2023, could not be ruled out---Brother of deceased/witness admitted in his cross-examination that Investigating Officer was in the knowledge of his SIM number, therefore, there might be possibility of sharing photos of the accused by Investigating Officer with said witness---Moreover, total number of persons associated in the identification parade were 13 in number---However, the names and particulars of the dummies in order to suggest similarity of description did not find mention in the said report, which was another factor to rule out the report of identification parade from consideration---Appeal against conviction was allowed, in circumstances.

Kashif Ali alias Kalu v. The State and another 2022 scmr 1515 and Bashir Muhammad Khan v. The State 2022 SCMR 986 ref.

Muhammad Ayaz and others v. The State 2011 SCMR 769 and Imran Ashraf and 7 others v. The State 2001 SCMR 424 rel.

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

----Ss. 302(b), 427, 468 & 471---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon---Appreciation of evidence---Test Identification Parade---Infirmities---Accused was charged for committing murder of the brother of a witness during haraabah---Record showed that the Magistrate did not incorporate any report about verification of the period, if any, for which the accused had remained in police custody and brought to the Court---Besides, the Magistrate also omitted to comply with requirement of giving certificate in the form prescribed by the High Court (Lahore) Rules and Order---Proceedings of identification test as reflected in memo. and evidence of Judicial Magistrate clearly revealed legal infirmities, which were sufficient to brush aside the identification proceedings---Witness of Identification parade did not give exact date, time and general features of the accused i.e. age, height, weight, and complexion in his statements under Ss.161 & 164, Cr.P.C and at the time of identification parade, thus his testimony had no evidentiary value and could not be considered---Similarly, other witness, who was plying taxi and took the accused in his taxi, did not mention general features of the accused---Said witness produced receipt of taxi service wherein admittedly no name, parentage, address and CNIC number were written---Perusal of receipt revealed that there existed columns of name, address and CNIC of customer but the same were left blank---Hence, in absence of particulars of accused's identity and his general features, evidence of witness did not inspire confidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 427, 468 & 471---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon---Appreciation of evidence---Recovery of incriminating material in absence of accused---Accused was charged for committing murder of the brother of a witness during haraabah---Investigating Officer deposed that he recovered a vehicle, one empty of pistol, one magazine of pistol, blood stained swab of deceased, broken pieces of window-glass of vehicle, number plate, photostat documents and four empties of pistol---Recovery was statedly effected on 16.02.2023 and production of said evidence was an unsuccessful attempt to provide corroboration---Statedly, recovery of vehicle was effected on 16.02.2023 by the Motorway Officials in the absence of accused---Said vehicle was handed over to Investigating Officer in presence of two Officials through memo. but the said Officials were not produced---Said concealment of evidence was damaging to the prosecution case, which created doubt and the same would go in favour of the accused, as such, the recovery in the absence of accused could not provide corroboration---Appeal against conviction was allowed, in circumstance.

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

----Ss. 302(b), 427, 468 & 471---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Qatl-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon---Appreciation of evidence---Recovery of weapon of offence and crime empties doubtful---Accused was charged for committing murder of the brother of a witness during haraabah---Recovery of weapon of offence i.e. .30 bore pistol along with its license, 6 cartridges, one black-coloured magazine, one bag of black colour, one suit of clothes, one double adhesive tape, one smart mobile phone containing two SIMs vide recovery memo. at the time of arrest of the accused was heavily relied upon by prosecution---Such evidence did not improve the case of prosecution for the reason that initially the empties which were recovered on 16.02.2023 from the spot were sent to Forensic Science Laboratory on 17.02.2023 and returned with its report on 01.03.2023---Factum of sending empties and pistol together on 08.03.2023 could not rule out the possibility of fabrication---Appeal against conviction was allowed, in circumstance.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence having corroborative value by itself cannot disclose the identity of the assailants.

Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 rel.

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

----Ss. 302(b), 427, 468 & 471---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(4)---Khyber Pakhtunkhwa Arms Act (XXIII of 2013), S. 15---Khyber Pakhtunkhwa Police Act (II of 2017), S.26(B), Second proviso---Qatl-amd, mischief and thereby causing loss or damage to the amount of fifty rupees or upwards, forgery, using as genuine a forged document, haraabah, possession of illegal weapon---Appreciation of evidence---Unauthorized Investigating Officer---Accused was charged for committing murder of the brother of a witness during haraabah---Allegedly, investigation was conducted by complainant, an Investigation Head Constable, who had no legal authority to investigate the murder case---As per second proviso to subsection (3) of S.26 of the Khyber Pakhtunkhwa Police Act, 2017, cases of murder and such other offences as determined by Provincial Police Officer shall be investigated by an officer of the rank of Inspector and where an Inspector is not available, the investigation shall be conducted by an officer not below the rank of Sub-Inspector duly authorized by the District Police Officer---It was not understandable that why the instant murder case was investigated by a Head Constable in absence of explanation of compelling circumstances which clearly vitiated the investigation---Appeal against conviction was allowed, in circumstance.

(j) Criminal trial---

----Circumstantial evidence---Scope---Circumstantial evidence should be like a well knit chain whose one end should point to accused and the other to the deceased.

Ibrahim and others v. The State 2009 SCMR 407; Imran alias Dully and another v. The State and others 2015 SCMR 155; Hashim Qasim and another v. State 2017 SCMR 986 and Yasin alias Ghulam Mustafa v. The State 2008 SCMR 336 rel.

(k) Criminal trial---

----Benefit of doubt---Principle---If evidence led by the prosecution casts doubt about the veracity of prosecution stance, its benefit is has to be extended in favour of accused as a matter of right.

Maqsood Ahmad v. The State and others 2017 MLD 1415; Hashim Qasim and another v. The State 2017 SCMR 986; Mukhtiar Hussain v. The State 2017 MLD 745 and Pirzada alias Peer v. The State 2017 PCr.LJ 605 rel.

Astaghfirullah Counsel for the Appellant.

Raja Siafullah Khalid Counsel for the Respondent No. 1.

Anees Muhammad Shahzad, Advocate on behalf of A.G., KP Counsel for the State.

Date of hearing: 27th May, 2024.

Judgment

Iqbal Hameedur Rahman, C.J.---Khayal Bacha-appellant was tried in case FIR No. 23 of 2023 registered at Levy Post, Fazal Subhan Shaheed Thana, District Malakand, in which charge was framed under section 17(4) of The Offences Against Property (Enforcement of Hudood) Ordinance VI of 1979 (Hereinafter called The Ordinance) and Sections 302, 427, 468/471 of the Pakistan Penal Code, 1860 (Act XLV of 1860) (Hereinafter called The Code) and section 15 read with section 19 of The Khyber Pakhtunkhwa Arms Act, 2013 (Hereinafter called the Arms Act of 2013) and after conclusion of trial, the above named appellant was convicted by the learned Additional Sessions Judge/MCTC, Malakand at Batkhela, through judgment dated 21st of December, 2023, under Section 302 (b) of The Code, awarded him sentence of rigorous imprisonment for life, requiring him to pay compensation to the tune of Rs.10,00,000/- (ten hundred thousand) to be reimbursed among the legal heirs of Ilyas Hussain Ali Madad (deceased) under section 544-A of the Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called the Act V of 1898). In case of default in payment of compensation, the same was ordered to be recovered as arrears of land revenue from the estate of the appellant and if the same was not recoverable, the appellant had to further undergo simple imprisonment for six months.

i. Concluding about the proof of charge under section 17(4) of The Ordinance, the appellant was awarded sentence of rigorous life imprisonment along with fine of Rs.1,00,000/- (one hundred thousand) in default whereof to further undergo simple imprisonment for three months.

ii. Formulating opinion about the proof of offences Sections 468/471 of The Code, the appellant was awarded sentence of three years imprisonment for each of the offence under Sections 468 and 471 of The Code with fine of Rs.50,000/- (fifty thousand) each of the above offences and in default of payment of fine to further undergo simple imprisonment for two months for each of the fine.

iii. In addition to above, the appellant was also convicted under section 19 of the Arms Act of 2023 and sentenced to pay fine of Rs.3000/- in default whereof to further undergo simple imprisonment for one month. However, the appellant was acquitted from the charge under section 15 of the Arms Act of 2013.

iv. Granting benefit of Section 382-B of the Act V of 1898, it was further held that the sentences awarded shall run concurrently.

1. The appellant being dissatisfied with the conviction and sentences awarded to him has preferred appeal claiming acquittal while setting aside the judgment impugned.

2. It was an un-seen and un-witnessed occurrence. Murasila (Ex.PA/1) was drafted by Investigating Head Constable-Obaid Khan in view of information furnished to him regarding unidentified bullets riddled dead body which was identified through the driving license to be that of Ilyas Hussain Ali Madad, lying near Saddam Crush Plant at University Road, who mentioned the features of the dead body in the said Murasila, also prepared injury sheet (Ex.PW-16/1), inquest report (Ex.PW-16/ 2), recovered 04 empties of pistol which were sealed in Parcel No.1 and Parcel No.2 (Ex.PB) and secured blood through cotton which was sealed in Parcel No.2 (Ex.PC) which were taken into possession vide Ex.PW-7/1. The Crime Report (Ex.PA) was recorded by Ijaz Ahmed, M.H.C. (PW-5) on 16th February, 2023 at 19:20 hours. Dead body was escorted to Civil Hospital Thana through Hazrat Bilal Constable-6225 (not produced) in the ambulance of Rescue-1122 for autopsy, which was conducted by Dr. Habib Khan (PW-4) and the post mortem report is (Ex.PW4/1). The Medical Officer opined that the deceased died due to wounds as mentioned in Post-Mortem report.

3. Since the assailants were unknown, therefore, there was no development in the investigation till the time of formal arrest of the appellant on 6th of March, 2023 vide memo. (Ex.PW-16/ 30). However, after the arrest of appellant, it was revealed in the investigation that deceased Ilyas Hussain Ali Madad, real brother of Ijaz Hussain (PW14), in pursuance of conspiracy, was engaged by Khayal Bacha, the appellant, under the pretext of negotiation regarding sale and purchase of vehicles, taken to Chakdara, Batkhela, where he was done to death while snatching the TZ Prado.

4. Since the appellant did not plead guilty to the charge, therefore, prosecution produced 16 witnesses including Syed Mansoor Shah Bukhari, Senior Civil Judge (PW-3), Dr. Habib Khan (PW-4), Juma Said (PW-12), Sajid Hussain last seen witness (PW-13), Ijaz Hussain, brother of deceased (PW-14) and Obaid Khan, IHC (PW-16).

5. The appellant in his statement recorded under section 342 of the Act V of 1898 denied the whole incriminating evidence put to him and while pleading false implication claimed acquittal.

6. Conclusion of trial as observed earlier resulted in recording of conviction and awarding sentences to the appellant, the detail of which has been given in para (1) of the judgment.

7. Learned counsel for the appellant contended that the assailants, who committed the murder of deceased at unknown time while, the matter was reported on 16.02.2023 at 19:20 hours and no one was nominated in the crime report. Moreover, no incriminating articles including belongings of deceased were recovered from the possession of the appellant or on his pointation and there is no judicial or extra judicial confession of the appellant. Prosecution witnesses were examined under Section 161 and 164 of the Act V of 1898 after visit of IHC-Obaid Khan to Skardu. Making reference to the investigation, it was contended that the said IHC-Obaid Khan (PW-16) had no legal power or legal authority to investigate the murder case in view of second proviso to subsection (3) of Section 26 of Police Act, 2017, KPK and visit of IHC-Obaid Khan to Skardu for the purpose of investigation does not appeal to prudent mind as the occurrence had taken place at University Road, Batkhela, Malakand and recoveries were also made in that area. Continuing the arguments it was contended that TZ Prado was recovered from Motorway police, who handed over the same to IHC-Obaid Khan but it was not recovered from the possession of or on the pointation of the appellant, besides, the places of recovery of vehicle and dead body are different. Drawing our attention to the Call Data Record (CDR) (Ex.PW-2/1), it was submitted no call has been made from the number of accused to the deceased and info list containing name and CNIC produced by PW-2 is mere information regarding ownership of the SIM numbers of deceased and appellant. Though, on the day of occurrence the deceased was in contact with many other people but they were not interrogated as to why they were in touch with deceased on telephone. Referring to sending of two empties which were sent to the FSL were returned and after recovery of .30 bore pistol, two empties were again sent along with pistol to the FSL but there is no mention of return of two empties which were earlier sent to the FSL, while the magazine of .30 bore pistol recovered from appellant was not examined by FSL. It was further submitted that it is the case of circumstantial evidence in which no evidence is against the appellant and the Hon'ble Supreme Court has held that in circumstantial case, evidence can be fabricated easily. To substantiate the contention, it was highlighted that no report of CCTV Video footage from Motorway officials Swat was placed in this case by the IHC-Obaid Khan in order to conceal the identity of real culprits and it is surprising that the appellant after commission of murder snatched TZ Prado which was on the same day found abandoned on Motorway after crossing Chakdara Toll Plaza. Further argued with reference to evidentiary value of the identification parade, it was submitted that the appellant was shown to the witnesses and his photos were also sent to them by the IHC-Obaid Khan prior to identification parade. In this regard PW-13 Sajid Hussain admitted that prior to identification parade IHC-Obaid Khan had already his mobile phone number. Summing up the arguments, it was submitted that the learned trial Court considered and appreciated the inadmissible, un-corroborated, un impeachable and planted evidence of prosecution, which had no evidentiary value as it was fabricated and tailored one and by no stretch of imagination can be used in capital charge but the learned trial Court convicted the appellant on the basis of scattered pieces of evidence. Relying upon the Ratio expounded in that in "Kashif Ali alias Kalu v. The State and another" (2022 scmr 1515), "Bashir Muhammad Khan v. The State" (2022 SCMR 986) it was submitted that in view of glaring contradictions, benefit of doubt has to be extended to appellant not as a matter of grace and concession but as a matter of right.

8. Contrarily, learned counsel for the respondent No.1 contended that accused was lastly seen in the company of deceased at Fizagat Hotel by PW-13 Sajid Hussain. Making reference to the call made from suspected SIM number i.e. 0345-9217263 which was used by the accused Khayal Bacha to SIM No.0344-5577595 which was in the name of deceased Ilyas Hussain Ali Madad and motive behind the occurrence was snatching TZ Prado from the deceased. Regarding recovery of four empties from the place of occurrence, it was contended that the said empties matched with pistol of the accused. Citing the statement of Tehmid Gul PW-2, it was contended that not giving IMEI Number of Mobile Q-116 may be an inadvertent mistake. It was also submitted that the appellant has not claimed enmity for false implication by the prosecution while making his statement under section 342 of the Act V of 1898 and in response to the question as to why this case was lodged against him and why the PWS deposed against him, the accused/ appellant could not give plausible or rational reply but simply claimed innocence. Concluding the arguments, it was submitted that the prosecution has proved its case beyond the shadow of doubt as the defence could not point out any dent in the prosecution evidence. Hence, the appellant is not entitled to any relief.

9. Learned State counsel while endorsing the judgment of the learned trial Court and adopting the arguments of learned counsel for the respondent No.1 also contended that it is a case of circumstantial evidence and no chain connecting the guilt of accused to the neck of deceased is broken. Further contended that the empties recovered from the place of occurrence were matched with the pistol of the appellant whose license was in his name and according to medical report, the marks of blackening shows that deceased was fired at close range. He finally submitted that the appellant has rightly been convicted and awarded sentence.

10. Conscious consideration has been given to the arguments advanced while scanning evidence adduced by the prosecution.

11. It was an unseen occurrence. Crime Report (Ex.PA) was lodged against un-identified assailant(s). After lapse of seven days of the occurrence, on 23rd of February, 2023, Ijaz Hussain, brother of the deceased (PW-14) recorded statement under Section 161 of the Act V of 1898 wherein he charged unknown assailant(s) for murder of his brother. However, he implicated the appellant on 6th of March, 2023, by way of supplementary statement recorded under Section 164 of the Act V of 1898 for commission of murder of deceased Ilyas Hussain Ali Madad by the Appellant-Khayal Bacha and snatching TZ Prado which was abandoned at Swat Motorway. But admittedly the said supplementary statement was not exhibited in evidence. It is desirable to add here that Ijaz Hussain, brother of the deceased while appearing as PW-14 deposed that:

During his cross-examination he also admitted that "It is correct that during the course of investigation it was the levy officials who told me that one Khayal Bacha has murdered my brother".

In the light of above, implication of appellant by way of supplementary statement on behalf of Ijaz Hussain, brother of the deceased (PW-14) cannot advance the plea of prosecution even to connect the said appellant in the commission of crime. The said statement got no legal value and sanctity being hearsay, as such nomination of the appellant/ Khayal Bacha in supplementary statement cannot be taken into consideration. Article 71 of Qanun-e-Shahadat Order, 1984 (President Order No.10 of 1984) (Hereinafter called Order 10 of 1984) ccnveys that only direct evidence is admissible whereas hearsay evidence is inadmissible. For ready reference the said article is reproduced hereunder:

"71. ORAL EVIDENCE MUST BE DIRECT: Oral evidence must, in all cases whatever be direct; that is to say: -

If it refers to a fact, which could be seen, it must be the evidence of a witness who says he saw it;

If it refers to a fact, which could be heard, it must be the evidence of a witness who says he heard it;

If it refers to a fact, which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner;

If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds:

Provided that the opinions of experts expressed in any treaties commonly offered for sale and the grounds on which such opinions are held, may be proved by the production of such treaties if the author is dead, or cannot be found, or has become incapable of giving evidence, or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable:

Provided further that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection:

Provided further that, if a witness is dead, or can not be found or has become incapable of giving evidence, or his attendance cannot be procured without an amount of delay or expense which under the circumstances of the case the Court regards as unreasonable, a party shall have the right to produce, "shahada ala al-shahadah" ( by which a witness can appoint two witnesses to depose on his behalf, except in the case of Hudood."

In this regard reliance is also placed upon the dictum laid down in "Muhammad Azam and another v. Khalid Mehmood and another" (2013 PCr.LJ 36) that:

"9. According to the FIR. the complainant lodged the same after getting information from one Saleem about the death of Shaukat, deceased. He himself is not a witness of the occurrence. He was just an informer and his statement can be treated as hearsay evidence which cannot be treated as evidence in the eye of law. A reference is made to a case titled Arshad Mahmood v. Raja Muhammad Asghar and another [2008 SCR 345] in which it has been held as under:-

"8. According to prosecution the complainant, Arshad Mehmood, was not present at the place of occurrence, but when he appeared as a witness before the trial Court, he deposed that the accused Raja Muhammad Asghar fired bullet, which hit Yasir. He also stated that it was told to him by his wife, therefore his evidence is a hearsay evidence. Now the question emerges whether his wife also stated before the Court that she narrated the whole story to her husband. If she would have deposed as such, only then the evidence of Arshad Mehmood would have been admissible as provided in Article 71 of Qanun-e-Shahadat. We have gone through the statements of Arshad Mehmood and Mst. Tazim Akhter, wife of Arshad Mehmood. Arshad Mehmood stated categorically that the story was narrated to him by his wife, but Mst. Tazim Akhter nowhere stated that she told or narrated the story to her husband, therefore, the evidence of Arshad Mehmood was not admissible because Article 71 of Qanun-e- Shahadat conveys that only direct evidence is admissible and it is mandatory to rely upon direct evidence and indirect evidence is not admissible."

and in the case of "Sajjan Solangi v. The State" (2019 SCMR 872) that:

"However both the witnesses claimed that even Muhammad Hassan Solangi at the spot told the same facts to them but it is prosecution's own case that these two witnesses were not the eye-witnesses and they deposed upon the information allegedly furnished by Muhammad Hassan Solangi. Admittedly, Muhammad Hassan Solangi was never produced by the prosecution in this case nor he was summoned as a C.W. to confirm the assertion made by these two witnesses who according to both the courts below are the witnesses of ocular account. According to the Qanun-e-Shahadat Order, 1984 the evidence of Sikandar Ali Malkani (PW2) and Muhammad Nawaz (PVC-3) is hearsay and hearsay evidence cannot be made basis for conviction."

Therefore, deposition of Ijaz Hussain, brother of deceased (PW-14) implicating the appellant through supplementary statement is nothing but hearsay, which cannot be taken into consideration nor acted upon. Even, the said supplementary statement was not exhibited in evidence.

1. Referring to the statement of Sajid Hussain, (PW-13) who had lastly seen the deceased with the appellant was heavily relied upon on behalf of the prosecution. Though the said witness has stated that he was working as tourist guide yet he could not explain his presence at parking area of Karakarum Hotel, Fizagat, Swat on the day of occurrence where he along with Ijaz Hussain son of Ahmed (not produced) and others had lastly seen the deceased negotiating for sale and purchase of vehicles. His statement under Section 161 of the Act V of 1898 was recorded eleven day after the occurrence on 27.02.2023 which reflects that he kept mum and did not disclose the fact of lastly seeing deceased in the company of the appellant to Ijaz Hussain, brother of the deceased (PW-14). He also got recorded his supplementary statement under Section 164 of the Act V of 1898 on 06.03.2023 but the same was not exhibited in the evidence. Delay of eleven days in recording his statement under Section 161 of the Act V of 1898 without any plausible explanation casts serious doubts on veracity of his statement. The Apex Court in case of "Abdul Khaliq v. The State" (1996 SCMR 1553) has held that:

"There is no explanation furnished by the prosecution for examination of Mir Qalam after 20 days of the incident and for examination of Abdul Jabbar and Muhammad Shah after one month and three days of the incident. It is a settled position of law that late recording of 161, Cr.P.C. statement of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay."

While deposing in his cross-examination, Sajid Hussain (PW-13) admitted that "I hare not shown relevant entry in the register of Kura Kuram Hotel in order to establish my stay there. The witness volunteered that it is not my job and I.O had perused the CCTV Camera recording to rely on my presence at the relevant time."

Failure to produce proof of his stay in the Karakarum Hotel and non-production of CCTV Camera footage of the said hotel raises serious doubt and is sufficient is to disbelieve his evidence.

Even if, testimony of Sajid Hussain, (PW-13) is believed as gospel truth, there is gap of more than 9 hours between lastly seeing the deceased and his death that suggests possibility of deceased being killed by someone else which cannot be ruled out. Even otherwise, evidence of last seen requires corroboration which by itself is not sufficient to sustain charge of murder against the appellant. Reliance is placed on the dictum laid down in the case of "Ghulam Mustafa alias Ziau v. The State" (PLD 1991 SC 718) and "Rehmat alias Rahman alias Waryam alias Badshah v. The State" (PLD 1977 SC 515) holding that:

"On a balance of the decided cases it appears that the circumstance of the deceased having been last seen in the company of he accused is not by itself sufficient to sustain the charge of murder. Further evidence is required to link the accused with the murder of his companion such as incriminating recoveries at the instance of the accused, a strong motive or the proximity of the time when they were last seen together and the time when the deceased was killed. Only then will the accused be called upon to give an explanation of the demise of the person whc was last seen alive in his company."

Argument that Sajid Hussain (PW-13) and Ijaz Hussain, brother of deceased (PW-14) gave motive of snatching TZ Prado by the appellant would not advance the plea of prosecution in the absence of any credit worthy incriminating evidence, which the prosecution failed to prove.

1. Nomination of appellant in this case was made through suspected number which was installed in the suspected IMEI of mobile set wherein allegedly appellant Khayal Bacha used his SIM number. The learned trial Court in para 14 of impugned judgment has discussed that:

"14. Undeniably in the instant case, the CDR of the suspected SIM No. 0345-9217263 led to the nomination of the accused facing trial in the instant case. The said suspected cell number was spotted by the IO in the call history of mobile set of the deceased Ilyas Hussain and the CDR, EX-PW-2/1 also confirmed that the deceased was called on his cell number No.0344- 5577595 from the suspected cell No.0345-9217263 on 16-02-2023 at 7:03:58 PM. (page-2 of CDR). The said suspected SIM No.0345-9217263 CDR also confirmed that the deceased was contacted on his cell No.0344-5577595 at 07:03:58. The IMEI of the suspected SIM No is 86557006013417 (page-05 of CDR). The previous CDR of the suspected No.0345-9217263 revealed that the said SIM was previously used in another mobile set bearing IMEI No.35718889434770 (page-07 of CDR) and there after it was used in mobile set bearing IMEI No.35603394060254 till 25-07-2022 (page-12 of CDR). There after the suspected SIM No. 0345-9217263 was switched to IMEI No.85557006013417 till the date of alleged occurrence (page-14 of CDR) and on 18-02-2023, SIM No. 0340-7656735 was installed in the said mobile set. On 21-02-2023, SIM No.0348-1964978 was used in the mobile set having IMEI No. 85557006013417 (page-15 of CDR). The said SIM No. 0348-1964978 belonged to Zakir Hussain, PW-15. It was disclosed by Zakir Hussain, PW-15 that he had exchanged his mobile set with Qari Younas for mobile set, Q-116 that was handed over to the IO."

1. Adverting to evidence of Tehmid Gul. DFC/Computer Operator, who while appearing as PW-2, produced Call Data Record (CDR) and info list (Ex.PW-2/1) in respect of SIM numbers 0344-5577595 and 0355-5417440 which were in the name of deceased Ilyas Hussain Ali Madad, and a suspected SIM number 0345-9217263.

During his cross-examination he also introduced SIM numbers 0340-8486930 and 9235541440 which were owned by the deceased. Whereas, Call Data Record of SIM number 0340-8486930 which was in the use deceased's wife in Skardu (Gilgit) was not available. One Shujaat Hussain, whose SIM number is 0343-0565529, made 17 outgoing and incoming calls to the deceased but the location of the abovementioned calls were different. Surprisingly, the said Shujaat Hussain, who was an important witness, who identified the dead body of deceased at the time of postmortem examination and thereafter received the dead body, could have brought facts of location and in whose company the deceased was travelling which might have been disclosed by the deceased to him, was not produced and given up by the prosecution putting serious dents to the case of prosecution. However, SIM number 0344-5516191 was in the use of appellant Khayal Bacha. The said PW-2 admitted that no call was received by the deceased from the above said SIM number of appellant Khayal Bacha. It was further admitted by the said PW that suspected SIM number 0345-9217263 was in the name of Umara Khan whose CNIC number is 17101-0399898-3 and Farid Alam whose CNIC number is 15501-4140778-7. PW-2 further stated that as per information obtained from the system available to the office, the suspected number was in the use of Farid Alam but when details about the ownership of the said suspected SIM number was sought from the Cellular company on the basis of bio-metric verification, the Franchise furnished information that the said SIM number was in the name of Umara Khan. He further admitted that record of Franchise and record of bio-metric was not annexed with the CDR and handed over to the I.O. The said witness also added that the I.O. informed him that the said SIM number did not belong to Farid Alam as he sent e-mail to PTA and the Franchise concerned to verify the ownership of the SIM number but he did not annex the correspondence with the PTA and the Franchise with the CDR. It was also admitted by PW-2 that SIM number 0317-5555191 was in the name of Amir Gul whose CNIC number is 16101-6340377-1 which was used in the suspected IMEI number i.e. 35718889434770. However, he admitted that SIM number of the appellant was installed in IMEI number 3571888943771. Strangely enough, he also admitted that SIM number 0317-5555191 in the name of Amir Gul and according to CDR, it was installed in the IMEI number 357188894347700. He further admitted that according to CDR IMEI of both the above numbers were different. The PW-02 finally admitted that he in his statement under Section 161 of the Act V of 1898, had not given IMEI number of mobile set Q-116. In view of glaring contradiction regarding ownership of suspected SIM number and failure to produce its ownership proof and non-availability of telephonic contact between the deceased and the appellant, the CDR (Ex.PW-2/1) could not substantiate the case of prosecution, hence the same is liable to be discarded. Production of CDR in the absence of transcripts of the calls or end to end audio recording could not be considered/used as evidence worth reliance as held in "Mian Khalid Perviz v. The State through Special Prosecutor ANF and another" (2021 SCMR 522) that:

"Mere production of CDR DATA without transcripts of the calls or end to end audio recording cannot be considered/used as evidence worth reliance. Besides the call transcripts, it should also be established on the record that callers on both the ends were the same persons whose calls data is being used in evidence. While considering such type of evidence extra care is required to be taken by the Courts as advancement of science and technology, on the other hand, has also made it very convenient and easy to edit and make changes of one's choice as highlighted and discussed in the case of Ishtiaq Ahmad Mirza supra. We also can lay hand on the case of Azeem Khan v. Mujahid Khan (2016 SCMR 274) in this regard. So, the CDR DATA produced by the said witnesses is of no help to the Appellant and cannot be termed as an evidence worth reliance to shatter the direct evidence adduced by the prosecution."

It was further held that Call Data Record in absence of any concrete material, is not conclusive piece of evidence to ascertain the guilt or otherwise of the appellant. As held in "Mst. Asiya v. The State" (2023 SCMR 383) that:

"This Court in a number of cases has held that in absence of any concrete material the Call Data Record is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused."

1. To prove the culpability of the appellant, prosecution relied upon proceedings of identification parade, conducted by Syed Mansoor Shah Bukhari, Senior Civil Judge, Malakand at Batkhela (PW-3), wherein Juma Said (PW-12), Sajid Hussain (PW-13), Ijaz Hussain son of Ahmed (not produced) and Hussain Ahmed identified the appellant. The Magistrate admitted in his cross-examination that appellant raised objection that he was shown to witnesses prior to identification parade but the Magistrate did not further probe the matter nor did he give any finding on the said objection. The Magistrate also admitted on 09.03.2023 that the accused, who was un-muffled, was produced in his court for recording confessional statement and remained in the court with him for sufficient time for pondering. Hence, opportunity to see the appellant by the witnesses, who were also stated to be in the Court premises on 09.03.2023, cannot be ruled out. Sajid Hussain (PW-13) admitted in his cross-examination that I.O. was in the knowledge of his SIM number, therefore, there might be possibility of sharing photos of the appellant by IHC-Obaid Khan to Sajid Hussain.

2. We have noted certain legal infirmities in the proceeding of identification test. Perusal of copy of proceeding of identification test further reveals that total number of persons associated in the identification parade were 13 in number. However, the names and particulars of the dummies in order to suggest similarity of description do not find mentioned in the said report, which is another factor to rule out the report of identification parade from consideration. It is quite apparent, the principles laid down in the judgment of the Supreme Court have not been followed as such identification proceedings were not held in accordance with law. Reliance is placed upon the case law reported in "Muhammad Ayaz and others v. The State," (2011 SCMR 769) wherein it has been held that:

"Likewise the absence ofcomplete description of the dummies at the test identification parade without their addresses, their occupation and without any clue whether they were fellow prisoners or outsiders; the admitted dissimilarities in height, physique, features, complexion appearance and dress of the dummies and the accused persons; the absence of any information whether the accused persons and the dummies were similar in the matters of beards or being clean-shaven; the absence of disclosure by the prosecution about the actual date of arrest of the three accused persons; the declared involvement of the three accused persons in case FIR. No.110 of 2002 of Police Station Pirwadhai and the possibility of the said accused persons having remained in police custody on account of the said Pirwadhai case prior to the identification; the absence of any finding and decision by the learned Magistrate supervising the identification parade contradicting the admitted assertion of the accused persons being in fetters at the time of the said identification; the mere alleged pointation of the three accused persons by the three P.Ws. without disclosing the connection in which they had been identified or the role which each or anyone of them had played in the occurrence in question; the non-sealing" of the report of the said proceedings (Exh.PYY/1) and other relevant documents after the said report had been finalized on the day of the test identification and providing a copy thereof to the Investigating Officer before sealing the same on the next day; the four sheets of the said report being of a kind different from the last two sheets of the said report, were the kind of infirmities in the actual proceedings leading to the test identification of the accused persons which would render the said exercise also open to serious doubts."

Likewise in case of "Imran Ashraf and 7 others v. The State" (2001 SCMR 424) it has been held that:

"The perusal of the proceedings of identification parade (Exh.PEE/ 4) supervised P W. Irshad Mohiuddin, Judicial Magistrate, Multan reveal that it does not contain the names, parentage and addresses and occupation of each member of the parade, therefore, question would arise that who were those dummies, what were their features, with whom they were mixed up."

Another infirmity we have noted that in the report of identification test is that the Magistrate did not incorporate any report about verification of the period, if any, for which the appellant had remained in police custody and brought to the court. Besides, the Magistrate also omitted to comply requirement of giving certificate in the form prescribed by chapter H.C of volume 3 of Lahore High Court Rules and Order. Proceedings of identification test as reflected in memo. (Ex:PW-3/2) and evidence of Syed Mansoor Shah Bukhari, Senior Civil Judge, Malakand (PW-3) clearly reveals legal infirmities, which are sufficient to brush aside the identification proceedings.

1. Another piece of evidence, which was relied upon by the prosecution is of Juma Said PW-12, vendor of fruit, beneath Motorway Bridge, Aladhand, where the appellant allegedly stayed after the occurrence, did not give exact date, time and general features of the appellant i.e. age, height, weight, and complexion in his statement under Sections 161, 164 of the Act V of 1898 and at the time of identification parade. Since the said witness did not disclose exact date, time and general features of the appellant in his statement under Sections 161,164 of Act V of 1898, at the time of identification parade and while appearing as PW-12, his testimony got no evidentiary value and cannot be considered.

2. Similarly, Momin, (PW-10), who is plying taxi, who took the appellant in his taxi from Moza Bridge to Mardan and then with females to Hassan Abdal, did not mention general features of the appellant. He produced receipt of Geo Swat 2D Service dated 16.02.2023 (Ex:PW-10/1) wherein admittedly no name, parentage, address and CNIC number was written. Perusal of receipt (Ex:PW10/1) reveals that there exist columns of name, address and CNIC of customer but the same were left blank. Hence, in absence of particulars of appellant's identity and his general features, his evidence does not inspire confidence.

3. Kamal Afsar PW-8, guard at safety fence at Chakdara Motorway, who earlier in his statement under Sections 161 and 164 of the Act V of 1898 stated that lie while performing his duty as guard at Toll Plaza to Zulm Kot, found mobile set Q-116 of white colour which he gave to Muhammad Younis (PW-11).

Evidence of Kamal Afsar, who was declared hostile during trial while appearing as PW-8, and Muhammad Younis, (PW-11) who did not disclose IMEI number of Q-116 in their statements under sections 161 and 164 of the Act V of 1898, cannot be relied upon. In the light of above, recovery of mobile Q-116 has not been substantially and corroboratively established during trial.

1. It is further to be noted that Muhammad Sherin PW-9, Manager Habib Hotel, Fizagat, Swat., where allegedly appellant stayed for three nights, produced four Photostat leaves of register of hotel (Ex.PW-9/1) wherein CNIC numbers of the appellant were shown different and column of date and time of arrival showed signs of tampering which create serious doubt and is sufficient to brush aside the same.

2. Referring to the evicence of the IHC-Obaid Khan (PW-16) and memos. of pointation (Ex.PW-6/4 to Ex.PW-6/8) attempt was made to persuade us to act upon this evidence as a corroborative factor. On 07.03.2023, the appellant in the presence of IHC-Obaid Khan (PW-16) and Muhib Gul, IHC (PW-6) and constable Hazrat Bilal (given up) pointed the place of occurrence vide memo. (Ex. PW-6/4), the place where the white-coloured mobile phone Q-116 was thrown memo. (Ex.PW-6/5) and place where TZ Prado was abandoned (Ex.PW-6/6). Objection was raised during trial regarding the admissibility of these documents but strangely enough the objection was neither decided at that time when it was raised nor later on. Being inadmissible evidence, no importance can be given to the memos. (Ex.PW-6/4 to Ex.PW-6/ 6) and evidence of IHC-Obaid Khan (PW-16) and IHC Muhib Gul (PW-6) to this extent. Likewise, on 08.03.2023, the appellant not only made pointation of car parking of Habib Hotel Fizagat, Swat where he met deceased vide memo. (Ex.PW-6/ 7) but also pointed out Room No.20 of the said hotel where the appellant stayed for 3 nights through memo. (Ex.PW-6/8). Since nothing was discovered in pursuance of the disclosures made by the appellant, evidence should not be permitted to be produced falling outside the domain of Article 40 of Order 10 of 1984.

3. Different type of recovery is another piece of evidence relied upon by prosecution to strengthen its case. Obaid Khan, IHC (PW-16) deposed that he recovered from TZ Prado, one empty of pistol, one magazine of pistol, blood stained swab of deceased, broken pieces of window-glass of TZ Prado, number plate, photo stat documents through memo. Ex.PW-7/3 (Ex.PE, Ex.PF, Ex.PG, Ex.PH, Ex.PI, Ex.PW-16/5) and four empties of pistol vide memo. (Ex.PW-7/1 Ex.PB).

Recovery was statedlv effected on 16.02.2023 and production of said evidence is an unsuccessful attempt to provide corroboration. Statedly, recovery of TZ Prado was effected on 16.02.2023 by the Motorway officials in the absence of appellant. The said vehicle was handed over to IHC-Obaid Khan (PW-16) in presence of Sub-Inspector Waheedullah and CU Waheedur Rehman through memo. (Ex.PW-16/7) but the said S.I. Waheed Ullah and CU Waheedur Rehman were not produced. The said concealment of evidence is damaging the prosecution case, which creates doubt and the same goes in favour of the appellant, as such, the recovery in the absence of appellant cannot provide corroboration.

1. Admittedly, letters for provision of data/ record of CCTV Camera (Ex.PW-16/15) and verification of finger prints taken from the TZ Prado (Ex.PW-16/ 23) were sent to the concerned offices but no verification report of suspected fingerprints and data/record of CCTV Cameras installed at Chakdara Tool Plaza was produced at the trial to substantiate the case of prosecution.

2. Recovery of weapon of offence i.e. .30 bore pistol bearing No.AJK55231 along with its license, 6 cartridges, one black-coloured magazine, one bag of black colour, one suite of clothes, one double adhesive tape, one smart mobile phone containing one Telenor SIM and one Zong SIM vide recovery memo. (Ex.PW-16/30) at the time of arrest of the appellant was heavily relied upon by learned Counsel for the respondent. This aspect of evidence will also not improve the case of prosecution for the reason that initially the empties which were recovered on 16.02.2023 from the spot, were sent to Forensic Science Laboratory on 17.02.2023 and returned with its report (Ex:PW-16/ 26) on 01.03.2023. Factum of sending empties and pistol together on 08.03.2023 cannot rule out the possibility of fabrication. IHC-Obaid Khan (PW-16) during his cross-examination admitted that "No where it is stated in the FSL report that the empties after examination, which were earlier sent vide receipt No.72/1 dated 17-02-2023 was again sealed by the FSL Authority by affixing any stamp."

Even otherwise, recovery of weapons of offence coupled with positive reports of Forensic Science Laboratory (Ex.PW-16/ 26 and Ex.PW-16/52) is of little help to the prosecution in view of our discussion brushing aside the last seen evidence, Call Data Record and proceeding of identification test.

1. Similarly, positive Report of Chemical Examiner (Ex.PW-16/ 25) suggesting that last-worn clothes of deceased and one pair of brown colour boot were stained with human blood in the absence of any other evidence cannot prove guilt of appellant. Medical evidence having corroborative value by itself cannot disclose the identity of the assailants (See: "Muhammad Tasaweer v. Hafiz Zulkarnain and 2 others" (PLD 2009 SC 53):

"12. It is also settled law that medical evidence may confirm the ocular evidence with regard to the seat of the injury, nature of the injury, kind of weapon used in the occurrence' but it would not connect the accused with the commission of the crime,"

and "Abdul Majeed v. Mulazim Hussain and others" (PLD 2007 SC 637). Relevant portion of the case law, as under:

"But the learned High Court had also observed that the medical evidence is always a supporting evidence as medical evidence could not depict with regard to identification of the accused who had fired or hit the deceased by his weapon of offence."

But there is no credit worthy evidence in view of discussion made to get corroboration from the evidence.

1. Learned counsel for the appellant drew our attention to investigation conducted by IHC-Obaid Khan (PW-16) who was complainant of this case as well and he being Investigation Head Constable (IHC) had no legal authority to investigate the murder case. The relevant second Proviso to subsection (iii) of Section 26 of The Khyber Pakhtunkhwa Police Act, 2017 is reproduced hereunder:

"Provided further that cases of murder and such other offences as determined by Provincial Police Officer shall be investigated by an officer of the rank of Inspector and where an Inspector is not available, the investigation shall be conducted by an officer not below the rank of Sub-Inspector duly authorized by the District Police Officer "

It is not understandable that why the instant murder case was investigated by a Head Constable in absence of explanation of compelling circumstances which clearly vitiate the investigation.

1. We have noted certain other legal infirmities in the judgment assailed. One of them is omission on the part of Trial Court to mention the provision of law under which conviction was recorded and sentence was awarded. Making reference to the provision under which charge was framed, it was held that since evidence adduced though inspires confidence but cannot satisfy the yardstick contained in Section 17(4) of The Ordinance to record conviction, therefore, sentence of life imprisonment was awarded which cannot be imposed under the said provision.

2. Since, there is no direct evidence to connect the appellant in the commission of crime. Case of the prosecution rests upon circumstantial evidence. In the case of "Ibrahim and others v. The State" (2009 SCMR 407) dealing with the yardstick, it was held that circumstantial evidence should be like a well knit chain whose one end should point to accused and the other to the deceased. Relevant portion of the case law is reproduced hereinbelow:

"Undeniably, it was an un-witnessed occurrence and the prosecution case rested on circ-umstantial evidence. It is well-settled that circumstantial evidence should be like a well knit chain whose one end should point to the accused and the other to the deceased. "

We may also advantageously make reference to the dictum laid down in "Imran alias Dully and another v. The State and others" (2015 SCMR 155) that:

"5. By now, it is a consistent view that when any case rests entirely on circumstantial evidence then, each piece of evidence collected must provide all links making out one straight chain where on one end its noose fit in the neck of the accused and the other end touches the dead body. Any link missing from the chain would disconnect and break the whole chain to connect the one with the other and in that event conviction cannot be safely recorded and that too on a capital charge. As was held in the case of Fazal Elahi (ibid) and in view of the changed social norms and standard of ethics of the society, to which the witnesses belong and also the questionable credibility of the investigating agency and its incompetency to professionally investigate such blind crimes; by now, the Courts have to exercise more and more cautions before accepting and resting its opinion of being guilty on a circumstantial evidence collected apparently in a dishonest, dubious and rough manner."

and "Hashim Qasim and another v. State" (2017 SCMR 986), in which it has been held that circumstantial evidence sometimes may appear to be conclusive but must always be narrowly examined because such type of evidence sometimes may be fabricated. Relevant portion of the case law is reproduced as under:

"8. Keeping in view the above, the case of the prosecution appears to have been based entirely on circumstantial evidence. Placing reliance on circumstantial evidence, in cases involving capital punishment, the superior Courts since long have laid down stringent principles for accepting the same. It has been the consistent view that such evidence must be of the nature, where, all circumstances must be so inter-linked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. Any missing link in the chain would destroy the whole and would render the same unreliable for recording a conviction on a capital charge. Reference is made to the cases of Muhammad Aslam v. The State (PLD 1992 SC 254) and Ch. Barkat Ali v. Major Karam Elahi Zia (1992 SCMR 1047).

1. In cases of circumstantial evidence, there are chances of procuring and fabricating evidence, therefore, Courts are required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself, about its intrinsic worth and reliability, also ensuring that no dishonesty was committed during the course of collecting such evidence by the Investigators. If there are apparent indications of designs on part of the investigating agency in the preparation of a case resting on circumstantial evidence, the court must be on its guard against the trap of being deliberately misled into a false inference. If the court fails to observe such care and caution and hastily relies on such evidence, there would be a failure of justice. Reference may be made to the case of Fazal Elahi v. Crown (PLD 1953 FC 214) and of Lejzor v. The Queen (PLD 1952 PC 109), it was held therein with considerable emphasis that circumstantial evidence may sometimes appears to be conclusive but it must always be narrowly examined, if only because this count of evidence may be fabricated in order to cast suspicion on another, therefore, it is all the more necessary before drawing inference, if the accused's guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances, which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all."

It is to be noted that conviction cannot be based on high probabilities. Suspicion, however, strong cannot take the place of proof. Reliance is placed upon "Yasin alias Ghulam Mustafa v. The State" (2008 SCMR 336). Relevant portion of the case law is as under:

"It is well-settled that suspicion howsoever strong it may be, by itself cannot take place of proof. This view receives support from the following reported judgments:--

(i) Bhugdomal Gangaram and others v. State of Gujarat 1984 PSC 640 (sic), (ii) State of U.P. v. Krishna Gopal and another 1988 MLD 1501 (sic) and (iii) Vijant Kumar and others v. State through Chief Ehtesab Commission, Islamabad and others PLD 2003 SC 56.

2024 Y L R 2247

[Federal Shariat Court]

Before Iqbal Hameedur Rahman C.J, and Khadim Hussain M. Shaikh, J

Khadim Hussain and others---Appellants

Versus

The State and others---Respondents

Jail Criminal Appeal No. 07-I of 2022, Criminal Revision No. 01-I and Criminal Appeal No. 01-I of 2023, decided on 13th June, 2024.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Delay of 30 days in lodging FIR---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Incident was shown to have taken place on 28.07.2018 and report whereof as mursila was made on 29.08.2018, which was culminated into FIR the same date on 29.08.2018, and it was after more than 30 days of the incident---Complainant and a witness for the first time named the three appellants and the respondents as accused on the basis of hearsay evidence, stating that they were searching for the real accused and now they were fully satisfied that the three appellants and the respondents had committed the offence but they had not shown any source of their satisfaction relating to the involvement of the three appellants and the respondents in their supplementary statements before the police and in their statements under S.164, Cr.P.C, recorded before the Judicial Magistrate on 28.08.2018---There was no plausible explanation for such an inordinate delay of more than 30 days in naming the three appellants and the respondents as accused, which itself robbed their credibility---Credibility of a witness is looked with serious suspicion if his statement during investigation is recorded with delay without offering plausible explanation---Appeal against conviction was accordingly allowed.

Muhammad Asif v. The State 2017 SCMR 486 rel.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Material witness not examined---Effect---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Witness, who having nominated the accused on the basis of hearsay evidence in his statements under Ss.161 and 164, Cr.P.C, was to be examined by the prosecution to substantiate such aspects of its case, but instead of examining him, the prosecution abandoned him taking plea that he was mentally sick vide statement of the prosecutor, but no proof about his ailment was produced and even no prescription and/or a laboratory report etc, was brought on the record which could show such ailment of said witness---In such view of the matter, it could safely be said that said witness had not come forward to support the prosecution case and thus an adverse inference in that regard could legitimately be drawn, under Illustration (g) to Art. 129 of the Qanun-e-Shahadat, 1984, against the prosecution---Appeal against conviction was accordingly allowed.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Criminal Procedure Code (V of 1898), S. 164---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Confessional statements of witnesses---Infirmities---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Record showed that the statements of complainant and a witness, not produced, were recorded under S.164, Cr.P.C---Such statements revealed that at the time of recording of the said statements the accused were not present---No notice or document for production of the accused before the Judicial Magistrate was brought on record and it appeared that the purported statements under S.164, Cr.P.C, of the complainant and a witness (not examined) were recorded without giving them any notice despite them being in custody---Such fact of them being in custody before recording the alleged statements of the complainant and witness (not examined) was also admitted by Investigating Officer---Subsection (1-A) of S.164, Cr.P.C, envisaged that such statement was to be recorded by Magistrate in the presence of the accused, and the accused was to be given an opportunity of cross-examining the witness making the statement---Section 265-J, Cr.P.C, provided that the statement of a witness duly recorded under S.164, Cr.P.C, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness was produced and examined, be treated as evidence in the case for all purposes---Moreover, the Judicial Magistrate, before whom, the aforesaid statements under S.164, Cr.P.C, were recorded, was also not examined by the prosecution although his examination was essential so as to substantiate the recording of such statements of the witnesses before him---In such view of the matter, the subject statements under S.164, Cr.P.C, of the complainant and a witness (not examined) had no value in the eye of law---Appeal against conviction was accordingly allowed.

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

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

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Criminal Procedure Code (V of 1898), S. 164---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Confessional statements of accused persons---Infirmities---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Confessional statements of three appellants revealed that the same besides being vague in nature, lacked in material particulars, and were also self-destructive and contradictory to the prosecution case---Ages of the three appellants were not mentioned therein and even the date and time of the incident was not disclosed---Per prosecution while arresting the three appellants, three .30 bore pistols with live cartridges were shown to have been recovered from them on 12.08.2018 and then the alleged snatched money of Rs. 1850/-, Rs. 1300/- and Rs. 1300/- was shown to have been recovered from appellants, but the alleged recoveries etc had not been mentioned in the alleged confessional statements of the three appellants, although the same were recorded after the alleged recoveries---Alleged confessional statements would reveal that the same were more or less in the same sequence, containing almost the same words and phrases, which in ordinary course was not possible unless copied from each other or referred to at the time of their recording---Apparently, the Judicial Magistrate recorded the alleged confessional statements of the three appellants in a slipshod manner dealing with the case in a casual and perfunctory way although it involved capital punishment---Neither time for reflection nor proper warnings as required by subsection (3) of S.164, Cr.P.C were given---Investigating Officer produced all the three accused together before the Judicial Magistrate for recording their confessional statements and the three certificates under S.364, Cr.P.C, depicted that only 30 (thirty) minutes time was shown to have been given to each accused, which rendered the alleged confessional statements involuntary and invalid---Judicial Magistrate was shown to have recorded their alleged confessional statements each containing three pages by consuming only 15 minutes on each alleged confessional statement, which was incomprehensible---Admittedly, the questionnaires with all the answers of the three accused and the requisite certificates appended on the foot of all the three alleged confessional statements besides being vague were also typed ones and they from their face did not conform to the requirements of law as contained in the provisions of S.364, Cr.P.C---Confessional statement had to be read over to the accused were to accord assurance that his words had been faithfully taken down, thereafter the signature of the accused were to be taken at the end of his statement in token of its correctness, making it conformable to what he declared to be the truth---Course adopted by the Judicial Magistrate in recording the alleged confessional statements of the three accused completely in negation of the mandate of the law, could not be approved---Where the law provided a procedure for doing a thing in particular method and manner that thing should be done in that prescribed manner and in no other way and if anything was done contrary to that manner, it shall be taken as if it had never been done---Manifestly, the alleged confessional statements purported to be of the three accused besides being involuntary, untrue and unbelievable, had also not been recorded in accordance with the law and thus were of no help to the prosecution, which deserved to be excluded from consideration---Appeal against conviction was accordingly allowed.

Muhammad Ismail v. The State 2017 SCMR 713 rel.

(f) Criminal trial---

----Medical evidence---Scope---Medical evidence is merely an opinion of an expert and is confirmatory in nature and not corroboratory except those observations of the Medico-Legal Officer, which are based on physical examination, which serve as a corroboratory piece of evidence---It at the best would confirm the ocular account with regard to the seat and nature of injury, kind of weapon used in the occurrence, but cannot identify the accused and thus the medical evidence is also of no help to the prosecution for connecting the accused with the commission of the offence.

Muhammad Tasweer v. Hafiz Zulkarnain and 2 others PLD 2009 SC 53 and Abdul Majeed v. Mulazim Hussain and others PLD 2007 SC 637 rel.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Recovery of weapons of offence from the accused---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Record reflected that the three accused were shown to be arrested on 12.08.2018 vide card of arrest by police party headed by SI/SHO, who had stated that .30-bore pistols along with live bullets were recovered from the three accused and he issued card of arrest of all the three accused---Strangely neither any memo. for the alleged recovery of the pistols from the three accused was shown to be prepared nor was it produced in evidence---Even the said weapons and live cartridges etc shown to have been recovered from the three accused were not sealed at the spot---No document i.e. receipt or entry of the Daily Diary showing the handing over of the said pistols and cartridges etc to Moharrir by SI was produced in evidence---Even name of that Moharrir to whom SI allegedly handed over the said pistols etc had not been disclosed by him in evidence---In cross-examination the said SI had admitted such discrepancies and infirmities---Although the alleged place of recovery was a thickly populated area situated near village population, but Investigating Officer purposely didnot disclose the alleged place of arrest of the three accused and he also purposely did not disclose the names etc of the team or Police Officials, who accompanied him to that place and no one amongst those Police Officials was either cited as witness or even examined by the prosecution---No independent private person was associated with the alleged recovery proceedings by Investigating Officer although he along with his staff went to the pointed place on basis of advanced information received by him at the police station---Undoubtedly, all the alleged three pistols and live cartridges etc remained unsealed and after their production by Moharrir of Police station the same were allegedly sealed on 14.08.2018 after two days of their alleged recovery---Above all, Moharrir of Police Station, who allegedly produced and handed over the said weapons and cartridges etc to the Investigating Officer, was neither cited as witness nor was examined by the prosecution although his examination was very essential so as to establish as to how he came into possession of the aforesaid three pistols and cartridges etc and also as to where the said three weapons and live cartridges etc were kept for two days in an unsealed condition---Prosecution had failed to establish the recovery of the alleged aforesaid three weapons and live cartridges etc from the three accused---Appeal against conviction was accordingly allowed.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Delay in sending the crime empties for analysis---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Record showed that the three empties of 30 bore pistol shown to have been secured from the place of incident on 27.09.2018 were earlier received in the office of Ballistic Expert on 02.08.2018 as was revealed from Forensic Science LaboratoryReport dated 10.08.2018, but it was strange that again on 31.08.2018 three .30 bore crime empties alongwith three .30-bore pistols together with fifteen .30-bore live cartridges were received in the office of Forensic Science Laboratory as was evident from the Forensic Science Laboratory Report dated 13.09.2018---No evidence or explanation was furnished by the prosecution as to how the same three .30-bore empties sent to the Ballistic Expert on 02.08.2018 were again sent to the Ballistic Expert on 31,08,2018 i.e. after 32 days of the incident and 19 days of the alleged arrest of the three accused---No explanation was given for such an inordinate delay in sending the pistols and crime empties to the Ballistic Expert---Who had delivered the alleged weapons and three empty shells in the office of Forensic Science Laboratory was nowhere mentioned in the Forensic Science Laboratory Report---It was not known as to when the three empty shells, which were allegedly earlier sent to Ballistic Expert, were returned to the Investigating Officer---Even roznamcha entries etc in that regard were not shown to be kept at the police station nor were they produced in evidence---Appeal against conviction was accordingly allowed.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Recovery of currency notes---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Record showed that the three accused were allegedly arrested on 12.08.2018 and at the time of their arrest except three pistols and live cartridges etc, nothing else was shown to have been secured from them, which had been admitted by Investigating Officer that alleged currency notes were not recovered from the possession of any of the accused, who after their arrest were committed to custody---Strangely during the investigation cash amount purported to be the alleged snatched money way shown to have been recovered from the said accused---Numbers and denomination of the currency notes as well as the time and place where the said recovery of alleged snatched currency notes was made, were neither mentioned in the memo. of recovery nor were disclosed during the trial by marginal witness to the recovery memo---Alleged secured currency notes, which were of common pattern, could not be termed to be the robbed money---Neither any entry relating to such recovery was kept in the Daily Diary nor was it produced in evidence by the prosecution---Prosecution had failed to prove that the alleged currency notes were recovered from the three accused---Appeal against conviction was accordingly allowed.

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

----S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Material witness abandoned by the prosecution---Effect---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Allegedly, the accused snatched mobile sets from the deceased---None of the mobile sets were recovered from the possession or on the pointation of any of the three accused, however, witness, who allegedly produced and handed over the alleged stolen mobile of deceased, stated that the said mobile set was given to him by respondent---Being a material witness it was necessarily to examine said witness, but the prosecutor and counsel for the complainant by filing joint statement before the Trial Court gave him up on the plea that he had been won over---There was nothing on the record to show that the said witness had been won over, therefore it could be said that he did not come forward to support the prosecution case in that regard before the Trial Court---Mere declaration of the prosecutor would not be enough to abandon such a material witness---If the witness, after appearance, did not support the prosecution, he could be declared hostile having been won over and subjected to cross-examination by the prosecutor to find out the truth, but the prosecution did not adopt such procedure for reasons best known to it---In such view of the matter, an adverse inference in that regard could be drawn, under Illustration (g) to Art. 129 of the Qanun-e-Shahadat 1984, against the prosecution---Even otherwise it was rather difficult to believe that accused after committing the offence had given the alleged mobile set of deceased to the said witness---Said witness, who was found in possession of stolen mobile set, claimed that he handed over the mobile through his son to the Investigating Officer on 07.08.2018, at the door of his house when police party headed by Investigating Officer arrived for the purpose of raiding his house for recovery of the alleged mobile set---Investigating Officer stated that he knocked the door of the house of said witness and accordingly his son came out from the house and his son was asked to call his father but the son responded that his father was not available, and when he asked that his father had mobile belonging to deceased to which he replied that the same was available in the house and he produced the same---Such stance had been belied by marginal witness to the recovery memo. who that the Investigating Officer took into possession the mobile phone of the deceased presented by witness in my presence as well as in the presence of other marginal witness---In such view of the matter, said witness was deserved to be dealt with in accordance with the law by associating him with the investigation for offence punishable under S.411 or under S.412, P.P.C---Even otherwise neither any proof relating to the ownership of the deceased persons over the alleged mobile sets had been produced nor the alleged mobile sets on recovery were identified through the complainant party---This Fact had also been admitted by Investigating Officer in his evidence---Thus the recovery of the alleged mobile sets was not helpful to the prosecution---Appeal against conviction was accordingly allowed.

(k) Criminal trial---

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

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

Khawaja Manzoor Ahmed for Appellants (in Jail Criminal Appeal No. 07-I of 2022).

Anees Muhammad Shahzad for Petitioner (in Cr. Revision No. 01-I of 2023).

Wajid Ali Khan for Respondents (in Cr.A.No. 01-I of 2023).

Zahid Younas, Law Officer on behalf of A.G. KPK for the State.

Date of hearing: 1st February, 2024.

Judgment

Khadim Hussain M. Shaikh, J.---By means of captioned Jail Criminal Appeal No.07-I of 2022 appellants Khadim Hussain, Abdur Rehman and Naseeb Ullah have called in question Judgment dated 24.11.2022, passed by the learned Additional Sessions Judge-I, Charsadda in Hadd Case No.07/HC of 2019 re-The State v. Khadim Hussain and others, emanating from Crime No.388 of 2018 registered at Police Station Sardhari, District Charsadda, for offences under Section 17(4) Harrabah of The Offences Against Property (Enforcement of Hudood) Ordinance, (VI of 1979), ("The Ordinance") and Sections 412 and 202 of The Pakistan Penal Code, 1860 (XLV of 1860) ("The Penal Code") whereby appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman have been convicted and sentenced to life imprisonment as Tazir as per Section 20 of The Ordinance extending them benefit of Section 382-B of The Code of Criminal Procedure, (Act V of 1898) ("The Code"), while through Criminal Revision No.01-I of 2023 re- Waris Khan v. Khadim Hussain and others, petitioner/complainant Waris Khan seeks enhancement of the above sentence by converting life imprisonment into death sentence awarded to appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman and whereas by means of Criminal Appeal No.01-I of 2023 re- Waris Khan v. Pervaiz etc appellant/ complainant Waris Khan has assailed the acquittal of respondents Pervaiz Khan son of Noor Gul and Nazir Muhammad son of Ghariat Khan.

1. Briefly, the facts of the prosecution case are that on 29.07.2018, complainant Waris Khan reported the incident through mursaila handed down by SI Safdar Rahman at the place of incident, which was later on incorporated in book under Section 154 of The Code as the subject FIR and he has mainly stated therein that deceased Kamran was his elder brother while deceased Salman was his nephew. It is stated that his deceased brother Kamran at Asar Vela left his house through motorcycle bearing registration No.F-1215 Mardan for the house of his sister situated at Shahdhand. After offering Maghrib prayer in the house of his sister, Kamran and Salman both proceeded to his village Kalyas on the same motorcycle, thereafter their contact with them disconnected. The complainant party, were in search of them and on the following day they were told that their dead bodies are lying at Speen Irab near Mian Nisatta Road. They went to the pointed place where they found them lying dead with their hands and feet fastened. Initially the case was registered under Section 302 of The Penal Code, but later on through Ex.PW.12/14 (Parwana Ezadgi), Section 302 of The Penal Code was deleted and Section 17 (4) Harrabah along with 412/202 of The Penal Code were inserted by the police in the record on 14.08.2018. During the investigation all the five accused were arrested and after usual investigation they were sent up with the challan to face their trial. After completing all the formalities, a formal charge against the accused was framed to which they pleaded not guilty and claimed their trial.

2. In order to prove its case, the prosecution examined in all 13 (thirteen) prosecution witnesses namely Anwar Khan, Farhad Ali, Rizwan Ullah No.1411, Farooq Shah ASI, Saleem Khan ASI, Dr. Waqas MO DHQ Hospital Charsadda, Safdar Rahman SI, Shoukat Khan ASI, Sheraz Firdous, Senior Civil Judge, Iftekhar Khan SI, complainant Waris Khan, Habib ul Hassan retired CIO/SI and Musafar Khan as PWs Nos.1 to 13 respectively and produced all the necessary documents including mursaila, inquest reports, forensic laboratory reports, postmortem reports, memos of recoveries, memo. of securing clothes of deceased Kamran and Salman, arrest cards of the accused, alleged confessional statements of the three appellants namely Khadim Hussain, Naseeb Ullah and Abdur Rehman and then the prosecution closed its side. Whereafter the statements of the appellants under Section 342 of The Code were recorded, wherein they denying the prosecution allegations and recovery of alleged crime weapons, alleged robbed motorcycle, alleged robbed money and alleged robbed two mobile sets etc, professed their innocence. The accused neither examined themselves on oath under Section 340(2) of The Code, nor did they examine any person as their defence witness. At the conclusion of the trial and after hearing the parties' counsel, the learned trial Court has convicted and sentenced the appellants vide impugned judgment dated 24.11.2022 and acquitted the respondents Pervaiz Khan and Nazir Muhammad as discussed in paragraph-I supra.

3. Appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman, being aggrieved by their conviction and sentenced, complainant Waris Khan being dissatisfied with the quantum of sentence of life imprisonment awarded to the above three appellants and the acquittal of respondents Pervaiz Khan and Nazir Muhammad vide impugned judgment dated 24.11.2022 have preferred the subject Criminal Appeals and Criminal Revision.

4. The learned Counsel for the appellant has mainly contended that the names of the appellants are not mentioned in the FIR; that the occurrence in this case is an un-witnessed one and it was after more than 30 days of the occurrence, PWs complainant Waris Khan and one Siraj Khan nominated appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman ("the three appellants") respondents Pervaiz Khan and Nazir Muhammad ("the respondents") as accused in their statements under Section 164 of The Code recorded before Mr. Shaukat Ali, the learned Judicial Magistrate Charsadda on 27.08.2018; that the three empty shells secured from the place of incident were sent along with the three 30 bore pistols allegedly secured from the appellants at the time of their arrest on 12.08.2018; that the reports of FSL have no evidentiary value; that there are material contradictions in the evidence led by the prosecution; that the alleged confessional statements were retracted by the three appellants at the earliest moment; that the alleged confessional statements of the three appellants were also not recorded in accordance with the law and well settled principles; that the alleged confessional statements of the three appellants were extracted after extending threats to them by keeping their family members including women folk in wrongful restraint and the same were not with the freewill of the three appellants; that no incriminating articles whatsoever were recovered from the three appellants; that after the recording of the alleged judicial confessional statements of the custody of three appellants was handed over to the Investigating Officer; that the three appellants are innocent and they have been falsely implicated in this case by the police to show their efficiency and to release pressure of their high-ups on account of the murders of two innocent persons, and, that the prosecution has failed to prove its case against the three appellants beyond reasonable doubt. Learned counsel for the three appellants have prayed that the Criminal Appeal may be allowed, the impugned judgment may be set-aside, and the appellants may be acquitted of the charge.

5. The learned counsel for respondents in appeal against acquittal filed by the complainant has mainly contended that the respondents are innocent and they have not committed the offence alleged against them; that there is absolutely no evidence to connect the said respondents with the alleged crime; that the learned trial Court rightly acquitted them of the charge; that after the acquittal the presumption of double innocence is created in favour of the respondents; and, that the Criminal Acquittal Appeal filed against the said respondents merits no consideration. The learned counsel prays for dismissal of the said criminal acquittal appeal.

6. Learned counsel for the complainant has mainly contended that the prosecution by examining 13 (thirteen) witnesses and producing all the necessary documents including post-mortem reports, memos of place of incident, recovery of three empty shells from the place of incident, recovery of robbed motorcycle, recovery of robbed money, recovery of crime weapons, inquest reports, blood stained material from the place of incident, blood stained clothes of both the deceased, postmortem reports, and Forensic Expert Reports etc, has proved its case against all the five accused beyond any shadow of doubt; and, that the learned trial Court has rightly convicted and sentenced the three appellants, but disputing the sentence of life imprisonment awarded to them and acquittal of the respondents, has prayed for dismissal of the instant appeal of the three appellants, seeks enhancement of the sentence by converting imprisonment of life awarded to them into death penalty and for setting aside of acquittal of the respondents and has prayed for awarding them the similar conviction and sentence as that of the three appellants.

7. The learned State counsel, supporting the impugned judgment dated 24.11.2012, has mainly contended that the learned trial Court after appreciating the evidence, has passed the impugned judgment and he has prayed for dismissal of the captioned Criminal Appeals and the Criminal Revision.

8. We have considered the submissions of learned counsel for the parties and have gone through the evidence brought on the record with their assistance.

9. From a perusal of the record, it would be seen that the names of the three appellants and the respondents do not find place either in the mursaila or in the FIR; the incident involved in this case was an unseen one and no one claimed himself to be an eye-witness of the occurrence during the investigation, which has been admitted by PW.12 Investigating Officer, stating that "it is correct that the occurrence is unseen; it is correct that there is no eye-witness of the occurrence nor during my investigation any independent eye-witness came forward in order to verify the scene of occurrence to be witnessed by them"; the incident was shown to have taken place on 28.07.2018 and report whereof as mursaila was made on 29.07.2018, which was culminated into FIR the same date on 29.07.2018 and it was after more than 30 days of the incident, complainant Waris Khan ("PW.11 the complainant") and PW Siraj Ahmed (not examined) first time named the three appellants and the respondents as accused on the basis of hearsay evidence, stating that they were searching for the real accused and now they are fully satisfied that the three appellants and the respondents have committed the offence involved in this case, but they have not shown any source of their satisfaction relating to the involvement of the three appellants and the respondents in the commission of the offence, in their supplementary statements before the police and in their statements under Section 164 of The Code recorded before Mr. Shaukat Ali, the learned Judicial Magistrate Charsadda on 28.08.2018 and there is no plausible explanation for such an inordinate delay of more than 30 days in naming the three appellants and the respondents as accused, which itself robs their credibility in view of well settled law that the credibility of the witness is looked with serious suspicion if his statement during investigation is recorded with delay without offering plausible explanation and there is plethora of judgments of the Superior Courts wherein it has been held that even one or two days unexplained delay in recording the statements of the witnesses without offering explanation would be fatal to the prosecution and testimony of such witnesses cannot be safely relied upon. Reliance in this context is placed on the case of Muhammad Asif v. The State [2017 SCMR 486], wherein the Hon'ble Supreme Court of Pakistan has held that:

"There is a long line of authorities/precedents of this Court and the High Courts that even one or two days unexplained delay in recording the statements of eye-witnesses would be fatal and testimony of such witnesses cannot be safely relied upon".

1. Apparently, the learned trial Court has convicted and sentenced the three appellants in the wake of their nomination as accused in the statements under Section 164 of The Code of PW.11 the complainant and PW Siraj; the alleged confessional statements of the three appellants; medical evidence; alleged recovery of snatched amount; alleged recovery of crime weapons; alleged recovery of robbed motorcycle; and, the alleged recovery of two mobile sets and FSL reports etc.

2. Patently, the complainant and/or PW Siraj (not examined) were not the eye-witness of the occurrence and even no one else appeared and claimed himself to be eye-witness of the incident during the course of investigation; PW.11 the complainant did not nominate the three appellants and/or any other person in his report which was handed down as mursaila on 29.07.2018 and it was after more than 30 days of the incident, PW.11 the complainant and PW Siraj Ahmed (not examined) first time named the three appellants and the respondents as accused in their supplementary statements before the police and in their statements under Section 164 of The Code recorded before Mr. Shaukat Ali, the learned Judicial Magistrate Charsadda on 28.08.2018 on the basis of hearsay evidence, stating that they were searching for the real accused and now they are fully satisfied that the three appellants and the respondents have committed the offence involved in this case and there is no plausible explanation for such an inordinate delay of more than 30 days in naming them as accused; when PW.11 the complainant in his evidence has stated that "later on, we came to the village and we were in search of real culprits. After our own satisfaction and being satisfied from the investigation of the police we charged the accused facing trial namely Khadim Hussain, Naseeb Ullah, Abdur Rahman for the murder of the deceased while Pervaiz was charged for abetment", but no source of their satisfaction about the involvement of the three appellants and the respondents has been disclosed by him, which is even admitted by PW.12 Investigating Officer, stating that "it is correct that the source of satisfaction has not been shown by the complainant regarding involvement of the accused in the instant case", and whereas PW Siraj, who having nominated the accused on the basis of hearsay evidence in his statements under Sections 161 and 164 of The Code as discussed supra, was to be examined by the prosecution to substantiate such aspects of its case, but instead of examining him, the prosecution abandoned him taking plea that he was mentally sick vide statement dated 02.07.2020 of the prosecutor available at page 128 of the paper book in Jail Criminal Appeal No.07-I of 2022, but no proof about PW Siraj's such ailment was produced and even no prescription and/or a laboratory report etc, which could show such ailment of PW Siraj was brought on the record. In such view of the matter, it can safely be said that PW Siraj has not come forward to support the prosecution case and thus an adverse inference in this regard, could legitimately be drawn, under the Illustration (g) to Article 129 of the Qanuan-e-Shahadat Order, against the prosecution, even otherwise, the statements under Section 164 of The Code purported to be of PW.11 the complainant and PW Siraj (not examined) available at pages 257 and 258 respectively of the paper book contain the same words, phrases, full stops and commas etc, which from its face is outcome of copy paste process; a copy of the order dated 27.08.2018, passed by Mr. Shaukat Ali, the learned Judicial Magistrate-I Shabqasdar/MOD, Charsadda while recording the aforesaid statements under Section 164 of The Code of PW.11 the complainant and PW Siraj (not examined), available at page 259 of the paper book, would reveal that at the time of recording of the said statements the accused were not present; and, no notice or any document for production of the accused before the learned Judicial Magistrate was brought on the record and it appears that the purported statements under Section 164 of The Code of PW.11 the complainant and PW Siraj (not examined) dated 27.08.2018 were recorded without giving them any notice despite their being in custody. This fact of their being in custody before recording the alleged statements of PW.11 the complainant and PW Siraj (not examined) was also admitted by PW.12 Investigating Officer, stating that "on 27.08.2018 the statement of complainant Waris Khan and one Siraj was recorded under Section 164, Cr.P.C, it is correct that this statement was recorded after 28/29 days of the occurrence, prior to this statement accused were arrested in the instant case". Subsection (1-A) of Section 164 of The Code envisages that such statement be recorded by Magistrate in the presence of the accused, and the accused is given an opportunity of cross-examining the witness making the statement. The word presence used in the above provision of law implies actual physical presence of the accused at the time of recording of the statement of witness under Section 164 of The Code by affording him an opportunity of cross-examining the witness; further Section 265-J of The Code provides that the statement of a witness duly recorded under Section 164 of The Code, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness is produced and examined, be treated as evidence in the case for all purposes. Moreover, Mr. Shaukat Ali the learned Judicial Magistrate-I Shabqasdar/MOD, Charsadda, before whom, the aforesaid statements under Section 164 of The Code were recorded, was also not examined by the prosecution although his examination was essential so as to substantiate the recording of such statements of the PWs before him. In such view of the matter, the subject statements under Section 164 of The Code of PW.11 the complainant and PW Siraj (not examined) have no value in the eye of law.

3. In so far the alleged confessional statements of the three appellants is concerned, the circumstances under which the same were recorded are to be examined carefully, as for placing reliance on the confessional statement of an accused it is well settled principle of law that it should not only be true, voluntary and believable, but it should be without fear, favour or any inducement and it must be consistent and coherent to the facts and the circumstances of the prosecution case; it is reiterated that the statement of an accused becomes confession only when it is recorded in compliance of provisions of Sections 164 and 364 of The Code and necessary precautions and formalities are observed; the conviction can be based on sole confessional statement of accused provided the same is voluntary and true and necessary precautions and formalities are adhered to; the Court can accept a retracted confession after making inquiry into all the material points and surrounding circumstances and satisfying itself fully that the confession cannot be, but be true, and it is corroborated by clear, cogent and independent evidence; the corroboration of the retracted confession with the other pieces of evidence in the case that would establish the link of accused with the commission of offence with which he is charged; mere delay in recording confession, in principle, is not fatal to the prosecution when the confession is proved to be true and voluntary, but if there are circumstances which would cast shadow of doubt on its genuineness then it should be excluded from consideration and delay in recording of the judicial confession in such a case would be fatal.

4. From the material brought on the record, it would be seen that the three appellants whose confessional statements were allegedly recorded, by denying the charge framed against them and pleading not guilty, had retracted their alleged confessional statements at the earliest stage of the case, and they in their statements under Section 342 of The Code, have also denied to have confessed their guilt before the learned Judicial Magistrate.

5. Furthermore, the alleged confessional statements of the three appellants produced at Ex.PW.9/1 to Ex.PW.9/9 reveal that the same besides being vague in nature, lacking in material particulars, are also self-destructive and contradictory to the prosecution case; for, the ages of the three appellants are not mentioned therein and even the date and time of the incident was also not disclosed therein, per prosecution while arresting the three appellants, three .30 bore pistols with live cartridges etc were shown to have been recovered from them on 12.08.2018 and then the alleged snatched money of Rs.1850/-, Rs.1300/- and Rs.1300/- was shown to have been recovered from appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman respectively, but the aforesaid alleged recoveries etc have not been mentioned in the alleged confessional statements of the three appellants, although the same were recorded after the aforesaid alleged recoveries. The alleged confessional statements would reveal that the same are more or less in the same sequence, containing almost the same words and phrases, which in ordinary course was not possible unless copied from each other or referred to at the time of their recording.

6. Apparently, PW.9 the learned Judicial Magistrate recorded the alleged confessional statements of the three appellants, in a slipshod manner dealing with this case in a casual and perfunctory way although it involves capital punishment, for, neither repeated time for reflection nor proper warnings as required by subsection (3) of Section 164 of The Code and in view of well settled principles laid down by the learned Superior Courts for recording confessional statement of an accused, were given to the three appellants before recording their alleged confessional statements, furthermore, PW.12 Investigating Officer produced all the three appellants together before PW.11 the learned Judicial Magistrate for recording their confessional statements and the three certificates under Section 364 of The Code, depict that only 30 (thirty) minutes time was shown to have been given to each appellant, which rendered the alleged confessional statements involuntary and invalid on this score alone. PW.9 the learned Judicial Magistrate, is shown to have recorded their alleged confessional statements each containing three pages by consuming only 15 minutes in each alleged confessional statement as is evident from the certificates appended on the foot of the alleged confessional statements, that being incomprehensible does not appeal; the learned Judicial Magistrate has stated that after recording the alleged confessional statements the custody of the three appellants was handed over to Naib Qasid of the Court for committing their custody to jail and PW.12 Investigating Officer, who was present in the Court, has stated that "I have examined medically the accused facing trial before producing to Judicial Magistrate for recording their confessional statement and before sending them to Jail; I have not medically examined the accused facing trial from doctor; on 15.08.2018 I remained in the court premises for about two to three hours; It is correct that I have produced all the four accused at the same day and time before the judicial magistrate concerned for recording their confessional statement; the witness volunteered that three accused had confessed their guilt while one accused refused to confess his guilt". PW.9 Mr. Sheraz Firdous, the learned Senior Civil Judge Batagram, who recorded the alleged confessional statements of the three appellants, has made material admissions in his evidence by stating that "it is correct that the questions and answers in the questionnaire were not in my hand writing. Self-stated that the questions were dictated by me to KPO and thoroughly asked from all the accused and thereafter the same were written by the KPO in my presence; I do not remember that whether the accused were associated by their relatives or any counsel etc; it is correct that a particular question regarding that what are the reasons for wishing to make a confessional statement has not been asked; it is correct that the questions and answers in the questionnaire are in English language; self-stated that as mentioned above the accused was explained in his mother language and thereafter the same were scribed in English; It is correct that the answers given in the questionnaire are in affirmative and negative; It is correct that I have not mentioned in my certificate that I have explained to the accused the question in their native language i.e. Pashto; it is correct that I have not mentioned in my certificate regarding the confessional statements of accused in their mother language. i.e. pashto and thereafter recorded by me in urdu; it is correct that the above fact regarding sending the accused to jail by the Naib Court has not mentioned in my order or in certificate; it is correct that statement of all accused were written in urdu while the mother language of all the accused is Pashto; after recording confessions, I handed over the accused to Naib Court to commit them to judicial lockup; it is correct that the above fact regarding sending the accused to jail by the Naib Court is not mentioned in my order or in certificate".

7. Admittedly, the questionnaires with all the answers of the three appellants and the requisites certificates appended on the foot of all the three alleged confessional statements besides being vague are also typed ones and they from their face do not conform the requirements of law as contained in the provisions of Section 364 of The Code, which, needless to say, were enacted to safeguard the interest of the accused, the words and terms used therein are so clear and unambiguous, leaving no room of doubt that the answers given by the accused, are to be taken into consideration and the expression every question put to him (accused) and every answer given by him (accused) shall be recorded in full as mandated by subsection (1) of Section 364 of The Code, is of great importance, the confessional statement has to be read over to the accused to accord assurance that his words have been faithfully taken down, thereafter the signature of the accused be taken at the end of his statement in token of its correctness, making it conformable to what he declares to be the truth; subsection (2) of Section 364 of The Code in unambiguous term requires and mandates that the learned Judicial Magistrate after examining the accused and recording his confessional statement has to certify under his own hand that the examination was taken in his presence and hearing and that the record contains full and true account of the statement made by the accused, while subsection (3) of the Section 364 of The Code mandates that in case in which the examination of accused is not recorded by the Magistrate himself he shall be bound as the examination proceeds to make a memorandum thereof which shall be written and signed by the Magistrate with his own hand and shall be annexed to the record and if the Magistrate is unable to make a memorandum as required he shall record the reasons of such inability. It is worthwhile to mention here that words or terms used in the statute when are clear and unambiguous, the Court cannot go beyond them and is obliged to take them in their ordinary dictionary meaning and the interpretation to be adopted must be such as advances purpose of act rather than to defeat the object thereof. It is reiterated that it is the duty of a Judge to ensure that not only he dispenses justice, but what is equally of vital importance, that justice also seems to have been done and the law never allows the Judge to make departure from the mandatory procedure and to ignore settled principle of law. The course adopted by PW.9 the learned Judicial Magistrate in recording the alleged confessional statements of the three appellants completely in negation of the mandate of the law, cannot be approved in view of the well settled law that where the law provides a procedure for doing a thing in particular method and manner that thing should be done in that prescribed manner and in no other way and if anything is done contrary to that manner, it shall be taken as if it has never been done. Reliance in this context is placed on the case of Muhammad Ismail v. The State (2017 SCMR 713), the Hon'ble Supreme Court of Pakistan has held that:-

"It is a bedrock principle of law that, once a Statute or rule directs that a particular act must be performed and shall be construed in a particular way then, acting contrary to that is impliedly prohibited. That means, doing of something contrary to the requirements of law and rules, is impliedly prohibited."

In view of the above, it is manifest that the alleged confessional statements purported to be of the three appellants besides being involuntary, untrue and unbelievable, have also not been recorded in accordance with the law and thus are of no help to the prosecution, which deserve to be excluded from consideration.

1. As far as the medical evidence is concerned, PW.6. Dr. Waqas Medical Officer District Head Quarter Hospital Charsadda, who had conducted postmortems of both the deceased namely Salman and Kamran, found one firearm injury i.e. entry wound on right side of neck with exit wound on occipital region of skull of deceased Salman with one small bruise on his right knee about 02 cm and according to his opinion, the said deceased died due to injury to main blood vessels in neck and injury to brain matter and skull fracture at occipital region; likewise he found one firearm injury i.e. entry wound on lower right side of neck with exit wound on the lower side of neck at the back side of deceased Kamran and according to his opinion the said deceased died due to injury to the main blood vessels in neck due to which blood lost a lot, even otherwise unnatural deaths of both the deceased caused by firearm injuries, has not been disputed by the defence. In any case the medical evidence is a mere an opinion of an expert and is confirmatory in nature and not corroboratory except those observations of the medico-legal officer, which were based on physical examination, which served as a corroboratory piece of evidence and that at the best would confirm the ocular account with regard to the seat and nature of injury, kind of weapon used in the occurrence, but could not identify the accused and thus the medical evidence is also of no help to the prosecution for connecting the appellants with the commission of the offence. Reliance in this context is placed on the cases of Muhammad Tasweer v. Hafiz Zulkarnain and 2 others (PLD 2009 SC 53) and Abdul Majeed v. Mulazim Hussain and others (PLD 2007 SC 637).

2. Record reflects that the three appellants were shown arrested on 12.08.2018 vide card of arrest Ex.PW.10/1 by police party headed by PW.10 Iftekhar SI, SHO Police Station Sardhari, who has stated that "I received information that accused facing trial of the instant case namely Naseeb, Khadim and Abdur Rehman were going toward Mardan on the relevant day. In pursuance to the said information I along with other police officials came to the place of arrest and made barricade for the purpose of their arrest. In the meanwhile the accused facing trial came via motorcycle which were intercepted. They tried to escape but due to other police officials they could not and were arrested there. Accused Naseeb and Abdur Rehman were riding on one motorcycle while Khadim was riding on other motorcycle. The Accused were searched which lead to the recovery of 30 bore pistol bearing A9520 with spare magazine and a leather holster having eight live rounds from accused Khadim while .30 bore pistol alongwith 04 live rounds from accused Abdur Rehman, similarly 30 bore pistol along with 03 live rounds of the same bore from accused Naseeb. I issued card of arrest Ex.PW.10/1 of all the above mentioned three accused. On return to the police station I handed over the recovered pistols along with the motorcycle to the Moharrir of the police station for further proceedings", but it is strange enough that neither any memo. for the alleged recovery of the aforesaid pistols from the three appellants was shown prepared nor was produced in evidence; even the aforesaid weapons and live cartridges etc shown to have been recovered from the three appellants were not sealed at the spot, no document i.e. receipt or entry of the Daily Diary showing the handing over of the aforesaid pistols and cartridges etc to Moharrir by PW.10 Iftekhar Khan SI was produced in evidence; even name of that Moharrir to whom PW.10 Iftekhar Khan allegedly handed over the aforesaid pistols etc has not been disclosed by him in the evidence, however, in cross-examination the said PW.10 Iftekhar Khan has admitted such discrepancies and infirmities by deposing that "it is correct that uptill 12.08.2018 column No.5 of the FIR was blanked and no one was charged therein as accused; I have not mentioned any belonging to the accused facing trial during the personal search of them i.e. CNICs, cash money etc except pistols. Similarly I have not mentioned "made" of the above-mentioned pistol; it is correct that there is nothing on the whole file regarding the receiving of the above-mentioned articles by the Moharrir concerned". Although the alleged place of recovery is a thickly populated area situated near village abadi, but PW.10 purposely did not disclose the alleged place of arrest of the three appellants and he also purposely did not disclose the names etc of the nafri or police officials, who accompanied him to that place and no one among those police officials was either cited as witness or even examined by the prosecution to substantiate such stance of the prosecution; even no independent private person was associated with the alleged recovery proceeding by him although he along with his staff, went to the pointed place on an advanced information received by him at the police station and in cross-examination, taking shelter of his memory, he has stated that "I do not remember as to whether there is village abadi near the place of occurrence. It is correct that I have not cited any private witness in the whole proceeding. It is correct that there is nothing on the whole file regarding the receiving of the abovementioned articles by Moharrir concerned. I do not remember the time and place where I received information from the spy. I was accompanied by my nafari at the time of receiving information. It is a fact that I have not mentioned the names and numbers of police officials in Mad No.22 vide which I came to the police station after the arrest of the accused. After receiving information from the informer I contacted the SHO of the police station Nisatta namely Sami Ullah who came there. It is a fact that I have not mentioned the name of said SHO in the Mad No.22. Additional police officials came to the place of nakabandi from police station on my request. I do not remember the source through which I received information from the informer. The witness volunteered that as sufficient time is lapsed therefore, I do not remember. I do not remember that who bodily searched the accused facing trial. Probably the police officials searched them at the time of arrest. I was present at the time of arrest with the nafri on the spot/nakabandi. It is correct that except recovery of pistols from body search nothing else was recovered from the accused facing trial. I have not arranged any private person as witness of the search and recovery despite the prior information. It is correct that the said pistols were not taken vide recovery memo. It is correct that all the recovered pistols and live rounds were not sealed on the spot on 12.08.2018. It is also correct that after the recovery of pistols and live rounds I did not put any signature/mark on the recovered pistols. I have not sent the recovered pistols and live rounds to the FSL by myself. The witness volunteered that the above-mentioned recoveries were handed over to Moharrir of the police station for onwards legal proceedings. I do not remember as to when the said pistols and live rounds were sealed into parcel by the CIO" and he also did not state about keeping the departure entry for the purpose of arrest of the three appellants and recovery of alleged crime weapons at the police station Sardhari, which needless to say, was essential so as to establish the movements of the police party for such purposes and it was also bounden duty of PW.10 to have made efforts for associating independent persons from the locality to act as mashirs for that he was obliged to have called some independent persons and persuaded them to act as mashirs and in case of failure of his efforts, he should have mentioned such facts in police diary, but nothing alike was done by him, therefore, it can safely be said that PW.10 has not made any effort to procure the association of independent persons to act as mashirs, despite the fact that the police party headed by him allegedly went to the pointed place from the police station with an advanced aim for the purpose of arrest of the three appellants and recovery of the alleged weapons and cartridges etc. PW.5 ASI Saleem Khan has stated in evidence that "I am also marginal witness to the recovery memo. Ex.PW.5/3 vide which the I.O took into possession one pistol 30 bore bearing No.A9520, one spare charger along with bandolier and 08 cartridges of the same bore belonging to the accused Khadim Hussain, a pistol 30 bore without number along with 04 cartridges of the same bore belonging to the accused Abdur Rehman, one pistol .30 bore without number and 03 live rounds of same bore belong to the accused Naseeb Ullah, being weapon of offence produced by Muhammad Ibrar Moharrir of police station and sealed the said pistols into parcels Nos.1 to 3 and the live rounds in parcels Nos.8, 9 and 10 respectively in my presence as well as in the presence of other marginal witness; it is correct that pistols in question mentioned in the recovery memo. Ex.PW.5/3 were not recovered in my presence from the accused. Similarly I am not marginal witness to those recovery memos vide which the pistols were recovered. I cannot say about the date to the recovery of the pistols mentioned above. I do not know about the FIR number, date of the recovery memos about pistols which I have stated in my volunteered statement above. Similarly I do not know the names of witnesses of the recovery memo. mentioned above. The pistols as well as cartridges mentioned above in Ex.PW.5/3 were not in sealed condition". Similarly, PW.12 Investigating Officer has admitted in his evidence that "it is correct that the pistols mentioned in the recovery memo. Ex.PW.5/3 were not in a sealed condition and I prepared recovery memo. and sealed the said pistols on 14.08.2018; it is correct that I have not recorded the statements of the police officials nor included their names in the list of witnesses in the instant case in whose presence the recovery were made". Undoubtly, all the alleged three pistols and live cartridges etc remained unsealed and after their production by Muhammad Ibrar Moharrir of police station the same were allegedly sealed on 14.08.2018 after two days of their alleged recovery shown to have been made on 12.08.2018. Over and above all, Moharrir Muhammad Ibrar of police station, who allegedly produced and handed over the said weapons and cartridges etc to the PW.12 Investigating Officer was neither cited as witness nor was examined by the prosecution although his examination was very essential so as to establish as to how he came into possession of the aforesaid three pistols and cartridges etc and so also as to where the said three weapons and live cartridges etc were kept for two days in such an unsealed condition. Under these circumstances, it is crystal clear that the prosecution has miserably failed to establish the recovery of the alleged aforesaid three weapons and live cartridges etc from the three appellants.

3. Moreover, the three empties of .30 bore pistol shown to have been secured from the place of incident on 27.09.2018 were earlier received in the office of ballistic expert on 02.08.2018 as is revealed from FSL report dated 10.08.2018 Ex.P2 available at page 168 of the paper book in Jail Cr.A.No.07-I of 2022, but it is strange enough that again on 31.08.2018 three .30 bore crime empties marked C1 to C3 along with three 30 bore pistols namely pistol No.A9520 marked A, .30 bore pistol No. Nil marked as B and .30 bore pistol No. Nil marked as D together with fifteen .30 bore live cartridges were received in the office of FSL as is evident from the FSL report dated 13.09.2018 Ex.P2/2 available at page 171 of the paper book and there is absolutely no evidence or explanation furnished by the prosecution as to how the same three .30 bore empties earlier sent to the ballistic expert on 02.08.2018 were again sent to the ballistic expert on 31.08.2018 i.e. after 32 days of the incident and 19 days of the alleged arrest of the three appellants and there is also no explanation for such an inordinate delay in sending the pistols and crime empties to the ballistic expert and as to who had delivered the alleged weapons and three empty shells in the office of FSL is nowhere mentioned in the FSL report Ex.P2 and Ex.P2/2 and it is also not known as to when the three empty shells, which were allegedly earlier sent to ballistic expert vide FSL report Ex.P2 were returned to the Investigating Officer etc, has also not been disclosed anywhere by the prosecution and even roznamcha entries etc in this regard were neither shown kept at the police station nor were produced in evidence. Moreover, PW.10 Iftekhar Khan, SI the then SHO of PS Sardhari, who allegedly secured the aforesaid three .30 bore pistols while arresting the appellants has admitted that "I have not sent the recovered pistols and live rounds to the FSL by myself. The witness volunteered that the above-mentioned recoveries were handed over to Moharrir of the police station for onwards legal proceedings. I do not remember as to when the said pistols and live rounds were sealed into parcel by the CIO" PW.12 Investigating Officer made vain attempt to establish that the parcels were sent through constable Qasim Shah to FSL by first time stated in his cross-examination during the course of his evidence recorded on 16.05.2022 i.e. after more than 45 months of receiving of the parcels in question in the office of Forensic Science Laboratory by stating that "the said parcels were handed over to Qasim Shah No.1368 by Moharrir for taking to the FSL; I do not remember as to whether I have recorded the statement of said Qasim Shah No.1368 regarding handing over parcels; it is correct that I have not mentioned the date on the application for sending the parcels to FSL; the witness volunteered that I mentioned detailed in the ziminis"; neither any zimini in this regard was produced in evidence nor constable Qasim Shah was examined by the prosecution and even Moharrir, who allegedly handed over the parcels to constable Qasim Shah for taking them to FSL was not examined by the prosecution, the FSL reports Ex.P2 and Ex.P2/2 also do not reveal either the name of constable Qasim Shah or any other person, who delivered the alleged parcels to the office of Forensic Science Laboratory. And thus, the safe custody and safe transmission of the three empty shells allegedly secured from the place of incident and the alleged crime weapons namely three .30 bore pistols, has not been established by the prosecution by producing any sort of documentary evidence and/or by examining any person in this regard, and as such no reliance can be placed on the FSL reports Ex.P2 and Ex.P2/2, which even otherwise in the wake of failure of the prosecution to prove recovery of alleged pistols from the three appellants including appellant Khadim Hussain is inconsequential.

4. So far the recovery of currency notes alleged to be the snatched money is concerned, it is the matter of record that the three appellants were allegedly arrested on 12.08.2018 and at the time of their arrest except three pistols and live cartridges etc, which has not been proved by the prosecution as discussed supra, nothing else was shown to have been secured from them, which has been admitted by PW.10 Iftekhar Khan SI, the then SHO Police Station Sardhari by deposing that "it is correct that except recovery of pistols from body search nothing else was recovered from the accused facing trial" and that alleged currency notes were not recovered from the possession of any of the appellants, who after their arrest were committed to custody, but it is strange enough that during the investigation the cash amount purported to be the alleged snatched money of Rs.1850/-, Rs.1300/- and Rs.1300/- were shown to have been recovered from the said appellants Khadim Hussain, Naseeb Ullah and Abdur Rehman respectively during the investigation and the numbers and denomination of the currency notes as well as the time and place where the said recovery of alleged snatch currency notes was made, are neither mentioned in the memo. of recovery Ex.PW.5/6 nor were disclosed during the trial, PW.5 Saleem Khan, who is marginal witness to the recovery memo, has admitted in his evidence that "it is correct that the recovery memo. Ex.PW.5/6 does not mention the denomination of the notes in question; it is correct that the recovery memo. does not found mention that the I.O has put his signature on the notes; I do not remember as to when the accused were arrested, similarly I do not know the executing officer; I cannot say as to the time of preparation of recovery memo; it is correct that the recovery memo. does not found mention the place of its preparation however, it does not found mention that it was prepared during interrogation which normally takes place in the police station; it is correct that interrogation normally takes place in the police station again stated that sometimes it takes place out the police station; the interrogation in this case was conducted in the varanda situated in the portion being use by the investigation of staff"; moreover, there were no specific marks of identification i.e. numbers and denominations of the stolen currency notes that could in any way render help in their precise identification; the alleged secured currency notes, which are of common pattern, cannot be termed to be the robbed money. It is further added that neither any entry relating to such recovery was kept in the Daily Diary nor was produced in the evidence by the prosecution. And thus the prosecution has also failed to prove that the alleged currency notes were recovered from the three appellants.

5. As regards, the alleged recovery of robbed motorcycle is concerned, per prosecution the motorcycle on which deceased Kamran accompanying other deceased namely Salman went to the house of his sister and while was returning on the said motorcycle, the culprits allegedly snatched motorcycle of deceased Kamran, two mobile sets belonging to both the deceased Salman and Kamran and cash amount of Rs.4500/- from them after committing their murders, but the alleged motorcycle belonging to deceased Kamran was shown recovered in pieces from the land of respondent Nazir vide memo. of recovery produced as Ex.PW.4/1, from that recovery memo. and the evidence of PW.4 Farooq Shah Khan ASI, who is marginal witness of the said recovery memo. it would reveal that a motorcycle having black color was secured in pieces, and whereas the registration document purportedly of the subject motorcycle produced at Ex.PW.13/2 reveals that the said document stands in the name of Musafar Khan son of Fazal Kareem, which shows the color of the motorcycle as red and that registration is not the name of deceased Karman; PW.11 the complainant in his evidence before the learned trial Court has stated that "on 28.07.2018 my deceased brother at Asar Vela left his house through motorcycle bearing registration No.F1215 Mardan for the house of his sister" and whereas the registration number of motorcycle, shown in the registration documents Ex.PW.13/2 and Ex.PW.13/3 is 2014-03-1914 and not F1215 as claimed by the complainant, even otherwise it has not been established by the prosecution that the documents produced at Ex.PW.13/2 and Ex.PW.13/3 are of the motorcycle allegedly secured from the field i.e. the land of acquitted respondent Nazir; it is also difficult to believe that after snatching the motorcycle and that too by committing murder of two persons during the course of robbery, accused had abandoned that motorcycle by converting it into pieces; the alleged secured pieces of motorcycle were not sealed and preserved and even PW.11 the complainant, who happened to be the real brother of deceased Kamran in his evidence, has shown his inability about the material particulars such as color, make, model and chassis number etc of the alleged motorcycle belonged to deceased Kamran by deposing that "I have correctly stated in my statement that the police had recovered the motorcycle during investigation, however, I was not present with them at the time of recovery. Similarly, I had not seen the fields of Nazir as well as not aware about the ownership of the same property; I do not remember the chassis number of the motorcycle; I cannot say about the model, color, make of the motorcycle nor I have disclosed the same in my report", and PW.12 Investigating Officer has also not uttered a single word about the identification of the motorcycle in question through the complainant party and in such view of the matter, recovery of alleged pieces of motorcycle is also of no help to the prosecution in this case.

6. As regards, the alleged mobile sets of deceased Kamran and Salman is concerned, none of the mobile sets was recovered from the possession or on the pointation of any of the three appellants, however, PW Daulat Khan, who allegedly produced and handed over the alleged stolen mobile of deceased Kamran, stating that the said mobile set was given to him by respondent Pervaiz, being a material witness was necessarily to be examined, but the prosecutor and learned counsel for the complainant by filing joint statement before the learned trial Court gave him up on the plea that he had been won over, although there is nothing on the record to show the said witness had been won over and therefore it can be said that he did not come forward to support the prosecution case in this regard before the learned trial Court. Needless to say that a mere declaration of the prosecutor would not be enough to abandon to such a material witness on that stance, for, if the witness, after appearance, does not support the prosecution, he can be declared hostile on such stance of witness's having been won over and subjected to cross-examination by the prosecutor to find out the truth, but the prosecution did not adopt such procedure for the reasons best known to it, although the prosecution was under its duty to prove its case beyond any shadow of doubt on the basis of best possible evidence. In such view of the matter, an adverse inference in this regard, could also be drawn, under the illustration (g) to Article 129 of the Qanuan-e-Shahadat Order, against the prosecution; even otherwise it is rather difficult to believe that accused Pervaiz after committing offence had given the alleged mobile set of deceased Kamran to PW Daulat Khan (given up). Further it also seems to be strange enough that PW Daulat Khan, who was found in possession of stolen mobile set, which he handed over through his son to the PW.12 Investigating Officer on 07.08.2018, at the door of his house when police party headed by PW.12 Investigating Officer went there for the purpose of raid of his house for recovery of the alleged mobile set in question belonging to deceased Kamran, as is deposed by PW.12 Investigating Officer by stating that "we knocked the door of the house of Daulat Khan and accordingly his Son namely Abu Zar came out from the house and his son was asked about father to call his father to come out but he responded that his father is not available and then we asked that your father had mobile of Pervaiz belonging to deceased to which he stated the same is available in our house and he produced the same", which has been belied by PW.5 Saleem Khan ASI, stating that "I am marginal witness to the recovery memo. PW.5/1 vide which the I.O took into possession the mobile phone of the deceased Kamran presented by Daulat Khan son of Habib Gafoor having IME No.355300607650 in my presence as well as in the presence of other marginal witness constable Qasim Shah". In such of the matter, PW Daulat Khan was deserved to be dealt with in accordance with the law by associating him with the investigation for offence punishable under Section 411 or under Section 412 of The Penal Code, PW.12 Investigating Officer in his evidence has admitted that "I have not arrayed this Daulat Khan in the instant case as accused; according to my knowledge if the stolen property is recovered from the possession of a person he will be prosecuted under Sections 411/412, P.P.C.", while the other mobile set was allegedly secured from the acquitted respondent Pervaiz. Even otherwise neither any proof relating to the ownership of the deceased persons over the alleged mobile sets has been produced nor the alleged mobile sets on recovery were got identified through the complainant party that fact has also been admitted by PW.12 Investigating Officer in his evidence by stating that "it is correct that I have not put the recovered mobile phones for the identification parade from the complainant's family". And thus the recovery of the alleged mobile sets is also not helpful to the prosecution.

7. The aforementioned infirmities, material and glaring contradictions, admissions adverse to the prosecution case, dishonest and deliberate improvements to strengthen the prosecution case made during the trial in the statements by the PWs qua the contents of the mursaila and FIR rendered the credibility of the prosecution witnesses doubtful and their evidence unreliable. Reliance in this context is placed on the case of Akhtar Ali and others v. The State (2008 SCMR 6), wherein the Hon'ble Supreme Court of Pakistan has held that:-

"It is also a settled maxim when a witness improves his version to strengthen the prosecution case, his improved statement subsequently made cannot be relied upon as the witness had improved his statement dishonestly, therefore, his credibility becomes doubtful on the well known principle of criminal jurisprudence that improvements once found deliberate and dishonest cast serious doubt on the veracity of such witness. See Hadi Bakhsh's case PLD 1963 Kar. 805."

In the case of Muhammad Ilyas v. The State (1997 SCMR 25), the Hon'ble Supreme Court of Pakistan has held that:-

"It is well-settled principle of law that where evidence creates doubt about the truthfulness of prosecution story, benefit of such a doubt had to be given to the accused without any reservation. In the result, there is no alternative but to acquit the appellant by giving him benefit of doubt".

1. In view of what has been stated above, it is crystal clear that there is absolutely no evidence worth consideration against the three appellants and the respondents to connect them with the offence alleged against them and the entire case of the prosecution is shrouded in mystery. And, thus, the prosecution has miserably failed to prove its case against the three appellants and the respondents beyond a reasonable doubt, but the learned trial Court without appreciating the evidence brought on the record in its true perspective, has convicted and sentenced the three appellants vide impugned judgment dated 24.11.2022, which suffers from mis-reading and non-reading of the evidence. It needs no reiteration that a single circumstance, creating reasonable doubt in the prudent mind about the guilt of the accused, benefit thereof is to be extended to the accused not as a matter of grace or concession, but as matter of right. Reliance in this context is placed on the case of Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), wherein the Hon'ble Supreme Court of Pakistan has held that:-

"16. It needs no reiteration that for the purpose of giving benefit of doubt to an accused person, more than one infirmity is not required, a single infirmity creating reasonable doubt in the mind of a reasonable and prudent mind regarding the truth of the charge-makers the whole case doubtful. Merely because the burden is on the accused to prove his innocence it does not absolve the prosecution from its duty to prove its case against the accused beyond any shadow of doubt end this duty does not change or vary in the case. A finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. Mere conjectures and probabilities cannot take the place of proof. Muhammad Luqman v. The State PLD 1970 SC 10."

In the case of Muhammad Mansha v. The State (2018 SCMR 772), the Hon'ble Supreme Court of Pakistan has observed that:

2024 Y L R 1823

[Supreme Appellate Court Gilgit-Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, CJ

Fida Ullah and others---Petitioners

Versus

The State---Respondent

Criminal Appeal 23 of 2023 and Criminal PLA No. 45 of 2023, decided on 25th March, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.302, 324 , 109, 114 & 34---Government of Gilgit-Baltistan Order, 2018, Art. 75(13)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment while the abettor being present, common intention---Bail, grant of---Further inquiry---Allegations of general nature --- Deficient / contradictory incriminating material --- Effect---There was general allegation against the petitioners in the FIR that they committed the murder of deceased by causing firearm injuries --- No specific injury on the person of deceased had been attributed to the petitioners--- Although it had specifically been mentioned in the FIR that the petitioners caused firearm injuries on the personof the deceased and committed his murder while citing two persons as eye-witnesses in the FIR, yet record revealed that both the said witnesses, in their respective statements recorded under S.161, Cr.P.C., did not support the prosecution story as narrated by the complainant in the FIR --- According to the statements of said witnesses , they had not seen the petitioners while causing firearm injures on the persons of the deceased and the injured , rather as per their statements they had seen the petitioners while running towards the Gilgit Baltistan Assembly---During investigation the Police recorded the statement of the injured (passerby) wherein he categorically deposed that he had not seen any person while causing firearm injuries on his person as well as on the person of the deceased--- Police also recorded the statement of other witness of the FIR allegedly present at the place of occurrence at the relevant time---Said witness in his statement did not disclose the name of the petitioners rather he stated that after the occurrence, he saw two persons running towards Gilgit Baltistan Assembly--- Although the Police recovered pistols from the possession of the petitioners yet such recovery was inconsequential as no specific weapon (pistols) were mentioned by the complainant in the FIR and no empty was secured by the police from the place of occurrence---Prima facie no cogent evidence was available on record connecting the petitioners with the commission ofpresent occurrence ---Facts and circumstances of the case had brought the case of the petitioners within the ambit of further inquiry ---Petitioners were behind bars since their arrest and were no more required by the police for the purpose of further investigation ---No useful purpose would be served by keeping the petitioner in jail for an indefinite period---Petitioners were admitted to post arrest bail, in circumstances.

Burhan Wali for Petitioners.

Mir Muhammad Prosecutor General for the State.

Muzaffar-ud-Din for the Complainant.

Date of hearing: 25th March, 2024.

Judgment

Sardar Muhammad Shamim Khan, CJ.---Through instant Criminal appeal the petitioners namely Fida Ullah, Ata Ullah and Hafiz Ullah seek post arrest bail in a case registered against them vide FIR No.24 of 2023 dated 14.02.2023 offences under sections 302, 324, 114, 109 and 34, P.P.C. read with section 13 Arms Ordinance at Police Station Jutial District Gilgit.

1. Precise allegation against the petitioners as narrated by the complainant in the FIR was that on 14.02.2023 at about 04:08 P.M, the petitioners namely Fida Ullah, Ata Ullah and Hafiz Ullah committed murder of Khosh Amadeen by causing firearm injuries on his person . It has further been alleged in the FIR that due to firing of petitioners a passerby namely Muzammil Hussain also sustained injuries on his person. Hence instant FIR was registered.

2. Learned counsel for the petitioners contended that petitioners have falsely been implicated in the instant case on the basis of mala fides; that the complainant is not the eye-witness of the alleged occurrence; that alleged eye-witnesses namely Nisar and Meer Afzal had not seen the petitioners while causing firearm injuries on the person of the deceased Khosh Amadeen; that Muzammil Hussain injured P.W in his statement recorded under section 161, Cr.P.C did not implicate the petitioners in the commission of instant occurrence; It has further been contended by learned counsel for the petitioners that presence of the alleged eye-witnesses at the place of occurrence is highly doubtful as both the eye-witnesses are the residents of Chilas; that there was general allegation against the petitioners that they committed the murder of deceased by causing firearm injuries. No specific injury on the person of deceased has been attributed to aforesaid petitioners; that petitioners are behind the bars since their arrest and are no more required by the police for the purpose of further investigation. Thus, it is submitted that by accepting instant appeal, the petitioners may be admitted to post arrest bail.

2024 Y L R 2064

[Supreme Appellate Court Gilgit-Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, CJ

Ali Abbas and others---Petitioners

Versus

The State ---Respondent

Criminal Appeal No. 06 in Cr. PLA No. 15 of 2023, heard on 6th July 2023.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 324, 337-A, 341, 109, 114, 34, 147 & 148---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-ammah, wrongful restrain, abetment, abettor present at the time of occurrence, common intention, rioting, rioting armed with deadly weapon---Bail, grant of---Two versions case---Scope---Accused were charged for committing murder of two persons and causing injuries to many persons of the complainant party---According to FIR, there was general allegation against the petitioners that they along with other co-accused launched an attack on son of complainant and injured him---Such allegation against the said petitioners was levelled during the first phase of the occurrence when victim himself telephonically informed the complainant that he received the injuries at the hands of the four petitioners and other co-accused whereas co-accused allegedly committed the murder of said victim with firearm weapon during the second phase of occurrence---Such allegation against the said petitioners was also falsified by the postmortem examination report of deceased because the doctor did not observe any injury on his person except two firearm injuries which had specifically been attributed to co-accused and the said injuries were declared the cause of death of deceased---No allegation was made against the petitioners that they caused any injury on the person of other deceased---Only allegation against the petitioner in the FIR was that he intercepted the complainant and witnesses when they were on their way---Although there was allegation against the other petitioner that he caused firearm injury on the person of injured witness yet during this occurrence petitioners also sustained injuries on their persons at the hands of complainant party---Petitioners were medically examined by the doctor who observed one injury each on the persons of three persons which were declared simple in nature whereas the injury on the person of another person was declared grievous in nature by the doctor---Although on the basis of application submitted by Mr. "SK" petitioner before SHO concerned, cross-version was initiated against the complainant and others but surprisingly the police cancelled the said cross-version case---Seat of injuries on the persons of the petitioners was the best certificate to raise the plea of self defence by them---Injuries on the persons of petitioners were suppressed by the prosecution in the FIR---In view of the matter, prima facie, it seemed to be a case of two versions and in such situation every accused would be responsible for his own act, therefore, vicarious liability would not be attracted in the case---Although during investigation pistol .30-bore was recovered from the possession of petitioner yet the FIR was silent as to whether the petitioner was armed with pistol .30-bore at the time of occurrence---Although there was specific allegation against said petitioner that he caused firearm injury on the person of injured witness yet he himself sustained grievous injury at the hands of the complainant party, therefore, he was entitled to be released on bail giving him the benefit of said injury which was sustained by him---Nothing was recovered from the possession of petitioners---No useful purpose would be served by keeping the petitioners in jail for an indefinite period---Petitioners were admitted to post arrest bail, in circumstance.

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

----Ss. 497 & 498---Bail---Observations of Court---Scope---Observations made in bail orders are tentative in nature and do not prejudice the case of either party at trial stage.

Aurangzeb Khan for Petitioners.

Asadullah Khan for the Complainant.

Mir Muhammad, Prosecutor General for the State along with Dr. Sammar Abbas and Dr. Zaheer Ahmad with record.

Date of hearing: 6th July, 2023.

Judgment

Sardar Muhammad Shamim Khan, C.J.---After arguing the case at some length and foreseeing its out-come, learned counsel for the petitioners seeks to withdraw this petition to the extent of Ali Abbas (petitioner No.1) and Khalid Hussain (petitioner No.2). Instant petition to the extent of aforesaid petitioners stands dismissed as having been withdrawn.

1. Through instant criminal petition, the petitioners namely Mujahid Hussain, Zahid Hussain, Azhar Hussain and Shah Khan seek post arrest bail in a case registered against them vide FIR No.54 of 2022 dated 14.03.2022 offences under sections 302,337-A 324, 341, 109, 114, 34, 147 and 148, P.P.C. at Police Station Jutial District Gilgit.

2. Brief facts of prosecution's case as narrated by the complainant in the FIR are that on 14.03.2022 at about 09:00 A.M, the complainant along with his son namely Adnan Hussain and his nephew namely Sarwar Hussain went towards stream (Nala) and in the meanwhile Imtiaz Hussain elder son of the complainant informed them through telephone that accused persons namely Irshad Hussain, Azhar Hussain, Ahsan, Hidayat, Shah Khan, Khalid, Mujahid and Hamid Khan launched an attack at him (Imtiaz Hussain) and he sustained injuries on his person, whereupon the complainant along with his brothers Manzoor Hussain, Altaf Hussain and his son namely Imtiaz Ali reached at Chutial Nala' and took the injured P.W namely Imtiaz Hussain along with them in the vehicles for the purpose of his medical treatment. It has further been alleged in the FIR that when they reached near the under construction building of police Check Post Jutial, Gilgit, Zahid Hussain petitioner intercepted them on the way whereupon the complainant along with P.Ws came out from their vehicles, meanwhile, Ali Abbas made a fire shot at Manzoor Hussain whereas Khalid Hussain also made a fire shot at Imtiaz Hussain and thereafter Mujahid Hussain (petitioner) made a fire shot at Altaf Hussain P.W, whereby, all the aforesaid three persons sustained firearm injuries. It has further been alleged in the FIR that accused namely Shoukat Hussain, Azhar Hussain(petitioner), Shah Khan, Isa Khan and Kafiat while armed with their respective weapons were also present at the spot and accused namely Kafiat caused injury on the person of the complainant withDANDA' which landed on his head. In the meanwhile the police reached at the place of occurrence. Manzoor Hussain, Altaf Hussain and Imtiaz Hussain were shifted to hospital in an injured condition but Manzoor Hussain and Imtiaz Hussain succumbed to the injuries in the hospital. Hence instant FIR was registered.

3. Learned counsel for the petitioners contended that petitioners have falsely been implicated in the instant case on the basis of mala fide; that there was general allegation against the petitioners namely Zahid Hussain, Azhar Hussain and Shah Khan that they along with other co-accused launched an attack at Imtiaz Hussain whereby he sustained injures; that no injury on the person of Imtiaz Hussain was observed by the doctor attributed to petitioners (Zahid Hussain, Azhar Hussain and Shah Khan); that there was no allegation against the petitioners namely Zahid Hussain, Azhar Hussain, Shah Khan and Mujahid Hussain that they caused any injury on the person of Manzoor Hussain deceased; that during investigating nothing was recovered from the possession of the petitioners namely Zahid Hussain, Azhar Hussain and Shah Khan. It has further been contended by learned counsel for the petitioners that although there was an allegation against the petitioner namely Mujahid Hussain that he caused firearm injury on the person of Altaf Hussain P.W yet during the same occurrence the petitioner namely Mujaid Hussain also sustained injuries on his person; that the prosecution did not explain the injuries sustained by Mujahid Hussain petitioner at the hands of the complainant party; that there was a dispute of land between the parties and infact the complainant party launched an attack at the accused party , therefore, the petitioner (Mujahid Hussain) acted in self defence, hence it was a case of two versions; that petitioners are behind the bars since their arrest and are no more required by the police for the purpose of further investigation. Thus, it is submitted that by accepting instant appeal, the petitioners may be admitted to post arrest bail.

4. Learned counsel for the complainant and learned Prosecutor-General have vehemently opposed the instant Crl. appeal on the grounds that petitioners were nominated in the FIR; that there was specific allegation against them that they along with co-accused caused injuries on the person of Imtiaz Hussain deceased. It has further been contended by them that there was specific allegation against the petitioner namely Mujahid Hussain that he caused firearm injury on the person of Altaf Hussain P.W which was declared grievous in nature by the doctor and during investigation pistol .30-bore was recovered from his possession; that during the occurrence the complainant also received injuries at the hands of the accused persons; that during investigation the statements of injured P.Ws namely Altaf Hussain and complainant were recorded by the police under section 161, Cr.P.C wherein they fully implicated the petitioners in the commission of instant occurrence ; that in the instant occurrence two persons had lost their lives and petitioners are vicariously liable for the commission of murder of the deceased committed by their co-accused; that the offences alleged against the petitioners come within the ambit of prohibitory clause of section 497, Cr.P.C. Thus, it is submitted that instant Crl. Appeal is liable to be dismissed.

5. Arguments heard. Record perused.

2024 Y L R 2099

[Supreme Appellate Court Gilgit-Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, C.J

Fatah Ullah Khan---Petitioner

Versus

Jamil Ahmed and others---Respondents

Election Petition No. 01 of 2023, decided on 27th October, 2023.

Elections Act (XXXIII of 2017)---

---Ss.93, 94 & 155---Civil Procedure Code (V of 1908), O.XX, R. 5---Election dispute---Postal ballots---Proof---Issue-wise finding, absence of---Effect---Appellant was declared as returned candidate who became member of Legislative Assembly---On a dispute over postal ballots, Election Tribunal allowed election petition filed by respondent and declared appellant unsuccessful and respondent was declared returned candidate---Election Tribunal in its judgment did not give issue-wise findings on all issues raised by parties---Validity---Election Tribunal failed to deliver judgment as was required under the law---Election Tribunal was to attend to points raised and record its findings with reasons on all questions raised by it---Judgment in question had to reflect judicial application of mind to material issues involved---Each and every material fact was not duly considered and objections were not repelled by recording cogent reasons and considering entire evidence on record---Respondent in his election petition took a specific stance that Returning Officer during process of issuing and receipt of postal ballot papers and final count violated provisions of Ss. 93 & 94 of Elections Act, 2017---Material / legal issues were framed by Election Tribunal but neither material witness (Returning Officer) was produced and examined nor any request was made for calling him as Court witness in order to substantiate allegations---Election Tribunal while deciding matter of postal ballot papers did not redress genuine grievance / joint request of parties for forensic verification of postal ballot papers in a legal and proper manner---Supreme Appellate Court set aside judgment in question and remanded the matter to Election Tribunal for decision afresh---Supreme Appellate Court directed Election Commission to restore earlier notification in favour of appellant whereby he was declared as returned candidate---Appeal was allowed accordingly.

Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt) Ltd. and others 2019 SCMR 1726 rel.

Sardar Abdul Rehman v. Abdul Kareem Khetran and others 2021 SCMR 82; Haji Muhammad Hassan Sherani v. Sardar Babar Khan and 13-others 2019 CLC 670; Col (R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others PLD 2023 Lah. 458; Qadir Baksh (deceased) through L.Rs v. Allah Dewaya and another 2011 SCMR 1162 and Muhammad Amir through L.Rs v. Muhammad Sher and others 2006 SCMR 185 ref.

Muhammad Ramzan Ch. and Hafiz Ehsan Ahmed Khokhar, Senior Advocates for Petitioner.

Malik Shafqat Wali and Amjad Hussain, Senior Advocates for Respondents.

Raja Inam-ur-Rehman and Yasir Akhter, Advocates/Legal Advisors for Election Commission G.B.

Khursheed Ahmed, Deputy Election Commission, G.B in person.

Date of hearing: 23rd October, 2023.

Judgment

Sardar Muhammad Shamim Khan, C.J.--- Through instant Election Appeal filed under section 155 of the Elections Act, 2017, the petitioner namely Fateh Ullah Khan has challenged the validity of impugned judgment dated 18.08.2023 passed by learned Election Tribunal in Election Petition No.01 of 2021 filed by respondent No.1 namely Jamil Ahmed, whereby the aforesaid Election Petition was accepted and respondent No.1 namely Jamil Ahmed was declared as Returned Candidate for remaining term of the Assembly in the constituency of GBLA-II Gilgit-II and Election Commission G.B was directed to notify the respondent No.1 as Returned Candidate for the remaining half period of the G.B Assembly.

1. Brief facts necessary for disposal of instant Election Appeal are that Fateh Ullah Khan petitioner and respondent No.1 namely Jamil Ahmed along with respondents Nos.2 to 24 contested the General Elections 2020 on the seat of Gilgit Baltistan Assembly from the constituency of GBA-2 Gilgit-II. On the basis of consolidated result prepared by the Returning Officer of constituency GBA-2 Gilgit-II, the petitioner namely Fateh Ullah Khan was declared as returned candidate from the constituency GBA-2 Gilgit-II by the Election Commission G.B vide Notification No. ELC-I (10/2020) dated 24. 11.2020. Being aggrieved by the said notification, the respondent No.1 namely Jamil Ahmed filed an Election Petition No.01 of 2021 before learned Election Tribunal G.B. The petitioner contested the said Election Petition by filing written statement/reply wherein he raised certain legal as well as factual objections. Out of divergent pleadings of the parties 27-issues were framed by learned Election Tribunal and thereafter the parties produced their respective oral as well as documentary evidence before the Election Tribunal. After hearing the arguments of the parties, the learned Election Tribunal vide judgment dated 18.08.2023 accepted the aforesaid Election Petition and respondent No.1 namely Jamil Ahmed was declared as Returned Candidate for remaining tenure of the G.B Assembly in the constituency of GBLA-II Gilgit-II. The validity and authenticity of abovementioned judgment dated 18.08.2023 passed by learned Election Tribunal G.B has been called in question through instant Election Appeal.

2. Learned counsel for the petitioner contended that the election was conducted in a peaceful manner and the polling process in all polling stations of constituency GBLA-II Gilgit II remained transparent peaceful and fair and no untoward incident took place at any polling station throughout the election day and this fact was acknowledged by the learned Election Tribunal while passing the impugned judgment; that the election petition filed by respondent No.1 before learned Election Tribunal contained only general and vague allegations and did not conform to the requirements of law as contemplated under section 159 of the Elections Act, 2017; that as per Form 47 issued by the R.O the petitioner obtained 6696 votes whereas the respondent No.1 secured 6694 votes in General Elections 2020 of G.B Assembly and R.O prepared a provisional consolidated statement of result of count of the said constituency (excluding the postal ballot papers); that after the announcement of provisional results the R.O conducted the process of consolidation of results including the postal ballot papers in presence of all contesting candidates and prepared the final consolidated Result ( Form 49) and same was transmitted to Election Commission G.B as per mandate of section 95 of Elections Act 2017; that as per Form 49/ Final Consolidated Result, the petitioner obtained 6860-votes whereas the respondent No.1 secured 6764-votes; that thereafter the respondent No.1 filed an application before Chief Election Commissioner G.B for recounting of all the ballot papers including the postal ballot papers and forensic verification of postal ballot papers which was turned down by the Election Commission G.B ; that in the light of final consolidated result, the petitioner was declared the winner/ Returned Candidate and a Notification was issued by the Election Commission G.B in this regard; that lateron the respondent No.1 approached the learned Election Tribunal G.B by filing Election Petition under section 139 of the Elections Act 2017 ; that during the pendency of said election petition, the petitioner filed civil Misc. application under section 145(1) of Elections Act 2017 for summarily rejection of the main election petition which was accepted by learned Election Tribunal vide order dated 31.01.2022 ; that being aggrieved by the said order, the respondent No.1 filed Election Appeal No.01 of 2022 which was accepted by this Court vide order dated 29.08.2022 and the case was remanded to the learned Election Tribunal with the direction to decide the matter afresh strictly on merits; that in the light of decision of this Court, the parties approached the learned Election Tribunal; that in the said Election Petition the learned Election Tribunal framed 27- issues and thereafter the parties produced their respective oral as well as documentary evidence before the learned Election Tribunal; that the learned Election Tribunal while passing the impugned judgment failed to give reasoned findings upon each and every issue and did not decide even a single issue as per mandate of Order XX Rule 5 of C.P.C.; that it was incumbent upon the learned Election Tribunal to decide all the material issues as per spirit of Order XX Rule 5 C.P.C. It has further been contended by learned counsel for the petitioner that the concerned Returning Officer issued letter dated 21.11.2020 Exh. D-I wherein the detail of issuing of postal ballot papers as well as receiving the said postal ballot papers has been mentioned and that it was categorically mentioned in the said letter that at the time of consolidation of results as per requirement of section 95 of the Election Act 2017, 1708 postal ballot papers were received and same were counted in presence of all the contesting candidates but the learned Judge Election Tribunal while passing the impugned judgment neither relied upon the said letter (Exh.D-1) nor gave finding on the said material document particularly when the issues were framed in this regard ; that the learned Election Tribunal while deciding the fate of the Election Petition only relied upon the documentary evidence of the respondent No.1 and excluded the postal ballot papers from the count without recording the evidence of concerned R.O and summoning the original record of postal papers for rechecking and re-counting which act of the learned Election Tribunal was totally illegal; that the learned Election Tribunal while passing the impugned judgment did not observe that any contesting candidate committed illegal acts or corrupt practices or violated the provisions of the Elections Act/ Rules but learned Election Tribunal while deciding the fate of Election Petition excluded all the postal ballot papers from the final count which is against the spirit of section 93 of Elections Act, 2017; that the relief which has been extended to respondent No.1 by learned Election Tribunal was not in the prayer of Election Petition. While relying on the cases reported as Pakistan Refinery Ltd. Karachi v. Barrett Hodgson Pakistan (Pvt.) Ltd and others (2019 SCMR 1726), Sardar Abdul Rehman v. Abdul Kareem Khetran and others (2021 SCMR 82), Haji Muhammad Hassan Sherani v. Sardar Babar Khan and 13 others (2019 CLC 670) and Col (R) Muhammad Shabir Awan v. Raja Saghir Ahmed and 4 others ( PLD 2023 Lahore 458) learned counsel for the petitioner contends that impugned judgment is the result of misapplication and misinterpretation of law, hence the same is not sustainable in the eyes of law. Thus, it is submitted that by accepting instant Election Appeal, impugned judgment passed by learned Election Tribunal is liable to be set aside.

3. On the other hand, learned counsel for respondent No.1 has vehemently opposed the instant Election Appeal by contending that from the evidence available on record, it has been established that the Returning Officer while issuing and receiving the postal ballots did not comply with the provisions of sections 93 and 95 of the Elections Act, 2017; that the Returning Officer through letter dated 20.11.2020 (Exh. P-6) transmitted to Chief Election Commissioner, G.B accepted the illegalities and unfair means committed by the candidates and inadmissibility of the postal ballot papers, therefore, learned Judge Election Tribunal while deciding the election petition rightly excluded all the postal ballot papers from the count keeping in view the requirement of section 93 of the Elections Act, 2017; It has further been contended by learned counsel for the respondent that as per letter dated 15.11.2020 (Exh.P-7) issued by Returning Officer GBA-II Gilgit, 1680 postal ballot papers were issued to the eligible voters and 1382 envelopes were received in the office of R.O but R.O included 1708 postal ballot papers in the count and in this regard the respondent No.1 moved an application to Election Commission G.B for forensic verification of all the postal ballot papers through NADRA but the Election Commission did not pay any heed to it; It has further been contended by learned counsel for the respondent No.1 that three major contesting candidates including the petitioner and respondent no.1 moved a joint application Exh. P.4 before Returning Officer for forensic verification of postal ballot papers through NADRA and on the basis of said joint application, the Returning Officer in his letter dated 20.11.2020, forwarded to Election Commission G.B, categorically mentioned that number of unfair means/illegalities were committed by the candidates/parties for getting postal ballot papers casted in their favour and forensic verification can be a viable option to trace their legality and proceed against the violator in accordance with law but the Election Commission G.B failed to redress the lawful grievance /joint request of the leading candidates and issued the impugned Notification in a hasty and unlawful manner and declared the petitioner as Returned Candidate under section 98 of the Elections Act, 2017 without exercising its powers vested on it under section 9 of the Elections Act,2017; It has further been contended by learned counsel for the respondent No.1 that in Exh. D-1, the Returning Officer admitted that he had issued 1680 postal ballot papers to the eligible voters through post and by hand before the day of Election poll and thereafter he (R.O) issued further 102 postal ballot papers by hand to the staff on duty; that as per spirit of section 93, it was incumbent upon the R.O to issue all postal ballot papers through post and not by hand therefore, whole mandate of section 93 of the Elections Act was violated and in this way the whole process of issuing and receipt of postal ballot papers were highly doubtful, thus the learned Judge Election Tribunal while passing the impugned judgment rightly excluded all the postal ballot papers from the final count; that after excluding all the postal ballot papers from the final count, both the petitioner and respondent No.1 had obtained equal number of votes, therefore, as per mandate of Section 159 of the Elections Act, 2017, the Election Tribunal had rightly declared both the candidates as Returned Candidates and each one of them shall be entitled to represent his constituency in the assembly for half of its term of office. Lastly, learned counsel for the respondent No.1 while relying on the cases reported as Qadir Baksh (deceased) through L.Rs v. Allah Dewaya and another (2011 SCMR 1162) and Muhammad Amir through L.Rs v. Muhammad Sher and others (2006 SCMR 185) contended that non-recording of finding on each and every issue would not be fatal to the judgment on the strength of Order XX Rule 5, C.P.C. Thus, it is submitted instant Election Appeal is liable to be dismissed.

4. Arguments heard. Record perused.

5. Perusal of record reveals that respondent No.1 namely Jamil Ahmed filed the Election Petition under section 139 of the Elections Act, 2017 against the petitioner and other contesting Candidates before the learned Judge Election Tribunal G.B wherein he (respondent No.1) raised the allegations of corrupt practices, grave illegalities and illegal acts committed by petitioner and Returning Officer during the process of final count of general votes as well as postal ballot papers. During the pendency of said election petition, the petitioner namely Fateh Ullah khan filed an application under section 145(1) of the Elections Act, 2017 seeking summarily rejection of the main election petition which was accepted by learned Judge Election Tribunal G.B vide judgment dated 31.01.2022. Being aggrieved by the said judgment, the respondent No.1 namely Jamil Ahmed filed an Election Appeal No.01 of 2022 before this Court. Vide judgment dated 29.08.2022, this court while accepting the aforesaid Election Appeal remanded the case to the learned Judge Election Tribunal with the direction to decide the matter strictly within four corners of law and rule provided in the Election Laws. In pursuance of the said verdict of this Court, notice was issued to the contesting candidates/ parties by the learned Election Tribunal. The petitioner /Returned Candidate appeared before the learned Election Tribunal and contested the Election Petition by filing written reply wherein he raised certain legal as well as factual objections. Out of divergent pleadings of the parties, 27 issues were framed by learned Judge Election Tribunal G.B. Thereafter both the parties produced their respective oral as well as documentary evidence before the learned Election Tribunal. It has been noticed that this Court while deciding the fate of the Election Appeal remanded back the case to learned Election Tribunal with the direction to decide the matter strictly within four corners of law and rule provided in the Election Laws. Perusal of record reveals that specific legal issues relating to corrupt practices, illegal rejection of valid votes, validity of postal ballot papers, violations of mandatory provisions of sections 142, 143 and 144 of Elections Act, 2017, Forensic verification of postal ballot papers as well as other material issues questioning the role of Election Commission and R.O were framed by the learned Election Tribunal. It is evident from the record that the learned Judge Election Tribunal while deciding the Election Petition failed to give reasoned findings upon each and every issue and did not decide even a single issue and also did not attend to these issues in a legal and proper manner which is against the mandate of Order XX Rule 5, C.P.C. The relevant provisions of Order XX Rule 5 of C.P.C. is reproduced as under for the sake of ready reference:-

"Court to state its decision on each issue. In Suits in which issues have been framed the court shall state its finding or decision, with the reasons therefore, upon each separate issue, unless the finding upon any one or more of the issues is sufficient for the decision of the suit"

The aforesaid provision of law clearly provides that the learned Judge Election Tribunal was bound to give reasons for his decision on each separate issue. It is evident from the record that the learned Judge Election Tribunal while deciding the election petition in para No.16 of the impugned judgment categorically held that "I do not deem it necessary to record the findings under each and every issue". This finding of the learned Judge Election Tribunal is contrary to the mandatory provisions of Order XX Rule 5, C.P.C. In the instant case the learned Election Tribunal failed to deliver a judgment as was required under the law. The requirement of aforesaid rule is that the court shall attend to the points raised, record its findings with reasons on all the questions raised before the Court/ election Tribunal and that the judgment shall reflect judicial application of mind to the material issues involved. Bare reading of the judgment passed by the learned Election Tribunal reflects that each and every material fact was not duly considered and the objections were not repelled by recording cogent reasons and considering the entire evidence on record. The effect of not complying with order XX Rule 5, C.P.C. has been discussed in a renowned judgment of the Hon'ble Supreme Court of Pakistan in "Pakistan Refinery Ltd. v. Barrett Hodgson Pakistan (Pvt) Ltd (2019 SCMR 1726) wherein it has been held as under:-

A judgment delivered by the trial court would not be a judgment in the real sense of the word if it does not conform to the requirements of Rule 5, Order XX of the C.P.C. Similarly a judgment delivered by the first court of appeal and final court of fact would not be a judgment if it does not conform to the requirements of Rule 31 Order XLI of the C.P.C. The rationale or raison d'etre behind these provisions is that not only the party loosing the case but the next higher forum may also understand what weighed with the court in deciding the lis against it. Such exercise cannot be dispensed with even in the cases of affirmative judgments otherwise who would know that arguments addressed were accepted or rejected with due application of mind"

Perusal of record further reveals that respondent No.1 namely Jamil Ahmed in his election petition took a specific stance that the Returning Officer during the process of issuing and receipt of postal ballot papers and final count violated the provisions of sections 93 and 94 of the Elections Act, 2017 and in this regard material/legal issues were framed by learned Election Tribunal but surprisingly neither the said material witness (R.O) was produced and examined nor any request was made for calling him as Court witness in order to substantiate the allegations. It has further been noticed that three major contesting candidates including the petitioner and respondent No.1 moved a joint application Exh. P.4 before Returning Officer for forensic verification of postal ballot papers through NADRA and on the basis of said joint application, the Returning Officer in his letter dated 20.11.2020 forwarded to Election Commission G.B categorically mentioned that number of unfair means/illegalities were committed by the candidates/parties for getting postal ballot papers casted in their favour and forensic verification can be a viable option to trace their legality and proceed against the violator in accordance with law but the learned Election Tribunal while passing the impugned judgment did not attend to these points in a legal and proper manner rather simply held that in his opinion forensic verification will not serve the purpose of ascertainment of valid votes and excluded all the postal ballot papers from the final count without summoning the record of postal ballot papers as well as without physically rechecking and recounting and disenfranchised all the voters who exercised their right of casting votes through postal ballot papers. Exclusion of all the postal papers from the count can be termed as injustice to all the contesting candidates. Whether or not all these postal ballot papers or some of them merited to be included in the count can be decided after their forensic verification through NADRA. Interest of justice demands that all the postal ballots be directed to be produced before the concerned Department for their forensic verification qua the thumb impression of voters over the postal ballot papers through NADRA. Keeping in view the facts and circumstance of the instant case, this Court has reason to believe that learned Election Tribunal while the deciding matter of postal ballot papers did not redress the genuine grievance /joint request of the parties for forensic verification of the postal ballot papers in a legal and proper manner.

1. In view of above facts and circumstances, it would be appropriate that the matter be remanded to the learned Judge Election Tribunal for decision afresh in view of findings made hereinabove. Thus, instant Ejection Appeal is accepted in terms of the short order of even date which is incorporated as part of this judgment and which reads as follows:-

For the reasons to be recorded later on, instant Election Appeal is partly accepted and the impugned judgment dated 18.08.2023 passed by the learned Judge Election Tribunal G.B as well as Notification dated 21.08.2023 issued by Election Commission G.B whereby the respondent No.1 namely Jamil Ahmed was declared as Returned Candidate from GBA-2, Gilgit II for the remaining half period of Gilgit Baltistan Assembly, are hereby set aside and the matter is remanded back to learned Judge Election Tribunal G.B for decision afresh with the following observations/directions.

1. The Election Petition filed by the respondent No.1 namely Jamil Ahmed would be deemed to be pending before the learned Judge Election Tribunal G.B who shall decide the same strictly on merits, after issuing notice to the parties.

2024 Y L R 2234

[Supreme Appellate Court Gilgit Baltistan (Gilgit)]

Before Sardar Muhammad Shamim Khan, C.J

Asim Ali---Petitioner

Versus

The State---Respondent

Criminal Appeal No. 11 in Criminal P.L.A No. 32 of 2023, heard on 2nd October, 2023.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-D, 147, 148 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit murder, jaifah, rioting, rioting armed with deadly weapon, common intention, act of terrorism---Bail, grant of---Further inquiry---Accused was charged for causing firearm injuries to the injured/complainant---Petitioner was not nominated in the FIR---According to version of prosecution, the petitioner was identified through CCTV footage wherein it was shown that petitioner threw a stone on the procession/mob which gathered near a Chowk and thereafter petitioner was arrested in the case on 06.09.2022---No statement of any witness was recorded by the police in order to establish that the petitioner was identified through CCTV footage---Police did not mention the place where the CCTV Camera was installed through which the petitioner was identified---Perusal of record revealed that 16-suspects including the petitioner were identified through CCTV footage and they were arrested by the police but during investigation seven suspects were discharged by the police from the instant case under S.169, Cr.P.C.---In the FIR the complainant implicated two Police Officials who allegedly made firing on the peaceful passers by and worshipers near the mosque and during investigation they were arrested and identified but they were discharged by the police from the case under S.169, Cr.P.C.---Although the petitioner made alleged extra-judicial confession before the police while in police custody yet his statement was not recorded by Magistrate under S.164, Cr.P.C, despite the fact that police kept on producing the petitioner for getting his physical remand before the Magistrate---Veracity and admissibility of such evidence against the petitioner would be adjudged by the Trial Court after recording the prosecution's evidence---During investigation nothing was recovered from the possession of the petitioner---Case of the petitioner came within the ambit of further inquiry in circumstances---Co-accused, against whom there was allegation that he made ariel firing at the time of occurrence and he was identified through CCTV footage and that recovery of pistol 30-bore was also effected from his possession, was admitted to post arrest bail---Case of the petitioner was on better footing than the case of said co-accused who was admitted to post arrest bail, therefore, the petitioner was also entitled for concession of bail keeping in view the rule of consistency---Petitioner was arrested in this case on 06.09.2022 and he was behind the bars for a period of more than one year and was no more required by the police for the purpose of further investigation---Trial of the case had not yet commenced---No useful purpose would be served by keeping the petitioner in jail for an indefinite period because it was not known as to how much time would be consumed by the prosecution in completion of the trial---Petitioner was admitted to post arrest bail, in circumstances.

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

----Ss. 497 & 498---Bail---Observations of Court---Scope---Observations made in the bail order are tentative in nature and should not prejudice the case of either party at the time of trial.

Samee Ahmed for the Petitioner.

Mir Muhammad Prosecutor General for the State.

Date of hearing: 2nd October, 2023.

Judgment

Sardar Muhammad Shamim Khan, C.J.---Through instant criminal petition, the petitioner namely Asim Ali seeks post arrest bail in a case registered against him vide FIR No.67 of 2022 dated 30.07.2022 offences under sections 147, 148, 324, 34, 337-D, P.P.C. read with sections 21-L and 6/7 of ATA, 1997 at Police Station Airport District Gilgit.

1. Brief facts of prosecution's case as narrated by the complainant in the FIR are that on 30.07.2022 at about 05:30 P.M, the complainant Usma came at "Yadghar Chowk Bakery" to buy some drinks. In the meanwhile a procession reached there and the police officials were also present along with the said mob/procession. A Motor-cyclist from the procession quarreled with the driver of "Chingchi Rickshaw" and thereafter some other motor-cyclists from the procession also maltreated the driver of said Chingchi Rickshaw. In the meanwhile some armed persons from the procession/mob and some police officials made firing at Siddiqia Mosque from Yadgar Chowk. It was further alleged in the FIR that the complainant had no knowledge about the said armed persons however, one of the police officials belonged to Qazalbash Mohallah whereas the second police official belonged to Burmas area. The police officials along with other armed persons raised religious slogans and created fear and terror in the locality and thereafter they made firing from Yadgar Chowk towards Siddiqia Mosque whereby the complainant sustained firearm injury on his chest and he fell down on the earth whereas one Ali Qaiser Iqbal also received firearm injury near Siddiqia Mosque. The people of the locality/Mohallah immediately shifted the complainant and said Ali Qaiser Iqbal to hospital for medical treatment. Hence instant FIR was registered.

2. Learned counsel for the petitioner contended that petitioner has falsely been implicated in the instant case on the basis of malafides; that petitioner was not nominated in the FIR and he was not identified by any of the P.W at the spot; that, although the petitioner was implicated in the instant case on the basis of CCTV footage but statement of any P.W is not available on record in order to establish that the petitioner was identified through CCTV Camara; that extra judicial confession allegedly made by the petitioner before the police is inadmissible in evidence; that in the FIR the complainant implicated two police officials who allegedly made firing on the peaceful passersby and Namzies/worshipers near the Siddiqia Mosque and during investigation they were arrested and identified as Mubashir Abbas and Hussain Allam Constables but they were discharged by the police from the instant case under section 169 Cr.P.C; that during investigation nothing was recovered from the possession of the petitioner; that Aitizaz Hussain co-accused who allegedly made ariel firing at the time of occurrence and was identified through CCTV Footage preferred his post arrest bail through Criminal Misc. No.289/2022 and he was admitted to post arrest bail by learned Chief court vide order dated 03.02.2023; that the case of the petitioner is on better footing than the case of aforesaid co-accused,therefore, the petitioner is also entitled for concession of bail keeping in view the rule of consistency; that petitioner is behind the bars since his arrest and is no more required by the police for the purpose of further investigation. Thus, it is submitted that by accepting instant appeal, the petitioner may be admitted to post arrest bail.

3. Learned Prosecutor-General has vehemently opposed the instant appeal on gmends that although the petitioner was not nominated in the FIR yet he was identified through CCTV Footage wherein it was established that petitioner threw a stone on the procession/mob which created fear and terror in the procession and that due to alleged act of the petitioner the peaceful atmosphere of the area was disturbed; that during investigation the petitioner confessed his guilt in his confessional statement got recorded by him under section 21-H of ATA, 1997; that the offences alleged against the petitioner come within the ambit of prohibitory clause of section 497 Cr.P.C. Thus, it is submitted that instant Crl. Appeal is liable to be dismissed.

2024 Y L R 667

[Gilgit-Balistan Chief Court]

Before Ali Baig, C.J.

MUHAMMAD HUSSAIN---Petitioner

Versus

SABIR HUSSAIN and 4 others---Respondents

Civil Revision No. 66 along with C.M. No. 765 of 2023, decided on 26th September, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 42---Suit for declaration--- Temporary injunction sought--- Ingredients--- Claim of the plaintiff was that he was owner-in-possession of suit-property which was transferred vide mutation (mutation-in-question) in the name of the defendant only with the condition that the same would be returned to him once he would return the amount borrowed from the defendant---Application for the temporary injunction filed by the plaintiff was dismissed by the Trial Court which order was maintained by the Appellate Court--- Validity--- Petitioner/ plaintiff, in order to substantiate his claim, himself had attached an attested copy of the mutation-in-question---Contents of the mutation-in-question revealed that there was no condition written in the same, rather the respondent/defendant had purchased the suit-property for consideration---Petitioner/plaintiff failed to make out an arguable case in his favour and balance of convenience was not in his favour; moreover, eventually, the petitioner/ plaintiff would win the case, the respondent/defendant would return the suit-property, as such he (petitioner) would not suffer irreparable loss if temporary injunction was not granted in his favour---Respondent /defendant, prima facie, seemed to be bona-fide purchaser of the suit-property---No illegality or material irregularity had been noticed in the impugned judgments and orders passed by both the Courts below while declining temporary injunction to the petitioner/plaintiff---Revision was dismissed, in circumstances.

Israr Hussain and Shujaat Ali for Petitioners.

Arsalan Hussain for the Contesting Respondent No.1.

None for Respondents Nos. 2 to 5.

2024 Y L R 1781

[Gilgit Baltistan Chief Court]

Before Sardar Muhammad Shamim Khan CJ, Imran Khan---Petitioner

Versus

The State---Respondent

Criminal Appeal No. 02 in Criminal PLA No. 07 of 2024, heard on 19th March, 2024.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.365-B, , 344 , 506 & 34---Government of Gilgit-Baltistan Order, 2018, Art. 75(13)---Kidnapping or abduction, wrongful confinement, criminal intimidation, common intention---Bail, grant of---Extraordinary delay by complainant in approaching police---Contradictory statements of the alleged abductee/victim lady---Record revealed that the matter was reported to the police after about two months and 26-days of taking place of the occurrence and no proper explanation for said extraordinary delay had been furnished by the complainant in the FIR---Copy of Nikah Nama was available on record which showed that the alleged abductee contracted marriage with the petitioner two days after taking place of alleged occurrence---On the very next day of reporting of the occurrence ,the alleged abductee appeared before the Police and got her statement recorded under S.161, Cr.P.C., wherein she contended that she had, out of her own free will , contracted marriage with the petitioner; later on, the alleged abductee appeared before the SHO of concerned Women Police Station wherein she also admitted the factum of her marriage with the petitioner ---Perusal of record also revealed that lady (alleged victim) and her husband (petitioner) filed the suit for declaration etc. before the Civil Court---Although the said suit had been dismissed on account of non-prosecution yet stance taken by her (alleged abductee) in the said suit was that she out of her own free will contracted marriage with petitioner and her father and brothers were causing legal harassment to her and they were interfering with her matrimonial life--- Although the statement of the alleged abductee was again recorded by the police under S.161, Cr.P.C, wherein she changed her initial stance by contending that the petitioner along with co-accused deceitfully abducted her and thereafter the accused persons forcibly obtained her thumb impression on the forged and fictitious Nikah Nama, yet prima facie it seemed that she had given said statement under some undue influence because the alleged abductee in her earlier three consecutive statements had categorically contended that she out of her own free will contracted marriage with petitioner and she did not support the prosecution version, as narrated by the complainant in the FIR---Keeping in view the facts and circumstances of the case, possibility of false involvement of the petitioner in the present case on the basis of mala fides could not be ruled out---Petitioner was behind the bars since his arrest and was no more required by the police for the purpose of further investigation---No useful purpose would be served by keeping the petitioner in jail for an indefinite period---Petitioner was admitted, to post arrest bail.

Burhan Wali for the Petitioner.

Mir Muhammad, Prosecutor General for the State.

Date of hearing: 19th March, 2024.

Judgment

Sardar Muhammad Shamim Khan, C.J.---Through instant Criminal Petition petitioner namely Imran Khan seeks post arrest bail in a case registered against him vide FIR No.135 of 2023 dated 08.12.2023 offences under sections 365-B, 506, 344 and 34, P.P.C. at Police Station Basin District Gilgit.

1. Precise allegation against the petitioner as narrated by the complainant in the FIR was that petitioner along with other co-accused nominated in the FIR deceitfully abducted Mst. Nasira Bibi (sister of the complainant) and thereafter the accused persons forcibly obtained the thumb impression of the sister of the complainant on the forged and fictitious Nikha Nama. Hence instant FIR was registered.

2. Learned counsel for the petitioner contended that petitioner has falsely been implicated in the instant case on the basis of mala fides; that Mst. Nasira Bibi the alleged abductee out of her own free will lawfully contracted marriage with petitioner vide Nikah Nama dated 14.09.2023; that thereafter Mst. Nasira Bibi the alleged abductee appeared before the police and got her statement recorded under section 161, Cr.P.C wherein she admitted the factum of her marriage with the petitioner and did not support the prosecution version, as narrated by the complainant in the FIR; that the petitioner is behind the bars since his arrest and is no mom required by the police for the purpose of further investigation. Thus, it is submitted that by accepting instant appeal, the petitioner may be admitted to post arrest bail.

2024 Y L R 2571

[Chief Court Gilgit Baltistan]

Before Raja Shakeel Ahmed and Mushtaq Muhammad, JJ

Malook Khan---Appellant

Versus

The State through ASI Incharge Traffic Branch Ghakuch---Respondent

Criminal Appeal No. 57 and Cr. Misc. No. 384 of 2023, decided on 4th July, 2024.

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

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing illicit weapon---Appreciation of evidence---Ocular account proved---Accused was charged for committing murder of deceased by firing---Witness who lodged the FIR had verified the same---Statement of said witness on record remained unquestioned and unchallenged on material points---Said witness during cross-examination remained consistent with statement as narrated in the FIR---First Information Report lodger with specific reference of his presence at the place of occurrence had narrated the true picture of the occurrence---Said witness had categorically claimed that he had seen the convict at the place of occurrence making the fatal shot on the deceased and death of the deceased instantly there at the place of occurrence---First Information Report lodger had categorically stated about his prompt action soon after the occurrence and defence had failed to shatter his statement even on trivial points---Other evidence on record was the ocular account rendered by a witness---Said witness about 47 years of age having reasons for his presence at the place of occurrence, had categorically charged the convict for pulling the trigger of his handgun and mentioned the manner in which the deceased reacted and that the shots proved fatal on the spot, resulting into instant death of the deceased---Said witness had verified the presence of FIR lodger at the place of occurrence and his reaction soon-after the occurrence---Defence had failed to discredit the truthfulness of his statement or occurrence---During cross-examination the defence line of questioning itself spoke that it had nothing in its hands to confront the same with the said witness---Other material witness of the occurrence was about 40 years old and he had stated the reason of his presence at the place of occurrence---Said witness claimed that he saw the occurrence when the convict opened fire from his backside and the deceased fell down on the ground---During cross-examination, the defence failed to discredit the testimony of said witness---All the three eye-witnesses had narrated the true facts and there was not the slightest contradiction in their statements---Police witness who had arrested the convict on the spot with the crime weapon had no reasons to depose falsely against the convict---Presence of said witness on the spot of occurrence was never disputed by the defence---Other witness had explained the reason of his being there on the spot of occurrence---Said witness had verified the presence of FIR lodger at the place of occurrence---Appeal against conviction being meritless was dismissed, in circumstances.

Khan alias Khani and others v. The State 2006 SCMR 1744; "Muhammad Latif v. The State PLD 2008 SC 503 and Muhammad Akbar and another v. The State PLD 2004 SC 44 ref.

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

----S. 302(b)---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, possessing illicit weapon---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused was charged for committing murder of deceased by firing---Crime weapon vide seizure memo. was duly verified by the recovery witness---Forensic Science Laboratory Report corroborated prosecution version and the report of Forensic Medicine and Toxicology---Perusal of Medical report ruled out the possibility of all the organs, liver, lungs, brain, stomach, spleen, kidneys and large intestine being contaminated with any poison and drugs---Evidence corroborated the opinion of death as recorded by the Medical Officer in the postmortem report---Appeal against conviction being meritless was dismissed, in circumstances.

(c) Criminal trial---

----Motive---Scope---Weakness or absence of motive is not fatal to the prosecution case.

Khalid Mehmood and others v. The State 2011 SCMR 664 and Saeed and 2 others v. The State 2003 SCMR 747 rel.

Burhan Wali for the convict/ Appellant (in Criminal Appeal No. 57) and for Petitioner (in Criminal Misc. No. 384 of 2023).

Malik Sherbaz Khan Additional Advocate General for the State in the above cited Appeal and Criminal Misc. Petition.

Umar Hussain for the Complainant.

Date of hearing: 27th June, 2024.

Judgment

Mushtaq Muhammad, J.---This single judgment shall dispose of the Criminal Appeal No.57/ 2023 filed by the convict/appellant named above under Section 410 Cr.P.C against the impugned judgment of conviction passed by the learned Sessions Judge District Ghizer (Trial Court) in Session Trial No.37/ 2020, whereby the learned trial court has convicted the above named convict/ appellant for the murder of deceased Sher Nafas Khan son of Juma Khan resident of village Damalgan Tehsil Yaseen, by causing intentional death of the named deceased and passed death sentence as Tazir against him. Learned trial court has awarded Rs.500,000/- compensation under Section 544-A Cr.P.C to the LRs of deceased Sher Nafas Khan. Learned trial court has convicted the named convict/ appellant under Section 13 Arms Ordinance, 1965 and passed a sentence of three months.

After passing a death sentence against the convict/ appellate, learned trial court has filed the Murder Reference No.05/ 2023, whereby the learned trial court has sought confirmation or otherwise of the capital punishment recorded by it.

1. Stated facts the Crime No. 35/2020 registered at Police Station City Gahkuch, are that on the day of occurrence 06/08/2020 at about 10 AM at the place of occurrence the convict/ appellant conducted two fire shorts at the deceased Sher Nafas Khan who died instantly on the spot of occurrence. First Information Report lodger ASIP Syed Afsar Ali Shah, PW-3 who was on his duty at the place of occurrence caught red handed the convict/ appellant with the weapon of offence. In the meantime, constables Rizwan Ali PW-9 and Irfan PW-8 reached at the spot of occurrence, who removed the dead body to the hospital, whereas FIR lodger Pw-3, brought the convict/ appellate to the police station. At the Police Station City Gahkuch during initial questioning names of the convict/ appellant and the deceased were disclosed. During the initial inquiry motive behind the occurrence illicit relations between the deceased Sher Nafas Khan and wife of the convict/ appellate was also disclosed.

2. After registration of the case, police formally investigated the matter and collected ocular evidence of occurrence and also secured the corroboratory/confirmatory evidence related to the occurrence and filed incomplete report No.38/2020 Ex.PW-10/A against the convict/appellate. On 17/10/ 2020, learned trial court framed a formal charge against the convict/ appellant to which he pleaded not guilty. Prosecution in order to prove the charge against the convict/ appellant has examined eleven Pws and abandoned PWs Izzat Aman and Head Constable Muhammad Sardar. At the end of trial convict/ appellant was confronted with the prosecution evidence on 21/11/2023. Convict/ appellant denied almost all the evidence of the prosecution. He did not take any specific defence and also did not opt to rebut the prosecution evidence on oath.

3. At the end of trial, learned trial court recorded a judgment of conviction on 11/ 12/ 2023. Learned trial court has framed three points for determination as reflected in para No.24 of the judgment.

4. Arguments have ben heard on 27/06/2024. Record of the case perused.

Mr. Burhan Wali advocate, learned counsel appearing on behalf of convict/appellant prescribed the case of convict/appellant that all the alleged eye-witnesses including the complainant Syed Afsar Ali Shah, FC Riwan Ali and FC Irfan are the police officials. He submitted that despite the fact that place of occurrence is a busy public place no independent eye-witness is named in the FIR and the alleged eye-witnesses Mirza Hassan PW-1 and Sharaf-ud-Din PW-2 were planted subsequently by the prosecution. Learned counsel argued further that motive as alleged in the FIR is not proved on record. Therefore, the case against the convict/ appellant is highly doubtful. He submitted that medico legal report Ex.PW-5/A is tentative in its nature, therefore, same cannot be read as part of prosecution evidence. He submitted that prosecution has not filed the lab report. By concluding his arguments leaned counsel for the convict/ appellant has prayed that impugned judgment of conviction dated 11/12/2023 may be set aside by accepting Cr. Appeal No.57/2023 and convict/ appellant may be acquitted of the charge as framed against him.

On the other hand learned Deputy Advocate General and counsel for the complainant, hotly contested the arguments of learned counsel of the convict/ appellant and replied that all the material evidence on record is very much cogent and natural. They submitted that complainant PW-3 was a traffic incharge and his presence on the place of occurrence is admitted on record. They submitted that both the eye-witnesses Mirza Hassan and Sharafuddin in their statement before the court have categorically charged the convict/ appellant for the murderous assault and instant death of the deceased Sher Nafas Khan on the spot. They submitted that crime was promptly reported and the convict/ appellant was arrested by the complainant on the spot along with the weapon of offence. They submitted that it was a broad day light occurrence and convict/ appellant was arrested on the spot, therefore, question of false implication does not rise. They replied that non-existence of motive is not fatal to the prosecution case. Learned counsel Raja Umar Hussain advocate has referred the judgments of Hon'ble Supreme Court of Pakistan cited, "Khan alias Khani and others v. The State" (2006 SCMR 1744), "Muhammad Latif v. The State" (PLD 2008 SC 503), "Muhammad Akbar and another v. The State" (PLD 2004 SC 44) and "Khalid Mehmood's case" (2011 SCMR 664).

Concluding their arguments, they prayed that case in hand is one of unshattered ocular evidence, therefore, the judgment of conviction dated 11/ 12/2023 passed by the learned trial court is correct and there is no misreading or non-reading of the evidence. They prayed that Cr. Appeal No. 57/2023 may be dismissed and Murder Reference No.05/2023 may be answered in affirmative.

1. We have examined the FIR Ex PW-11/D, the important evidence rendered by the FIR lodger PW-3, Mirza Hassan PW-1 and Sharafuddin PW-2. PW-3, Syed Afsar Ali Shah has verified the document Ex.PW-3/ A. Statement of PW-3 on record remained unquestioned unchallenged on material points. PW-3 during cross-examination remained consistent with statement as narrated in the document Ex PW-3/ A. PW-3 with specific reference of his presence at the place of occurrence has narrated the true picture of the occurrence. PW-3 has categorically claimed that he had seen the convict at the place of occurrence conducting fatal shot on the deceased Sher Nafas Khan and death of the deceased instantly there at the place of occurrence. PW-3 has categorically stated about his prompt action soon after the occurrence and defence has badly failed to shatter his statement even on a trivial point.

Learned trial court did not record a single finding on the particular testimony of Syed Afsar Ali Shah PW-3. The only thing done by the learned trial court on the credibility of PW-3 and evidentiary value of his statement is reproducing his statement in the judgment at page No.3 in para No.8. Mere reproducing statement of a witness without giving proper legal reasoning for acceptance or otherwise of the same is nothing but a perfunctory exercise of jurisdiction.

The other evidence on record is the ocular account rendered by the PW-1 Mirza Hassan. We have examined the statement of this witness. This prosecution witness about 47 years of age has with reasons behind his presence at the place occurrence, has categorically charged the convict/ appellant for pulling the trigger of his handgun and in what manner the deceased Sher Nafas Khan reacted and that the shots proved fatal on the spot, resulting instant death of the deceased Sher Nafas Khan. PW-1 Mirza Hassan has verified the presence of PW-3 Syed Afsar Ali Shah at the place of occurrence and his reaction soon-after the occurrence. Defence has badly failed to discredit the truthfulness or occurrence his statement. During cross-examination the defence line of questioning itself speaks that they have nothing in their hands to confront the same with this witness. Defence has questioned the witness on insignificant and shallow points like distant between his native village and Gahkuch town, the number of people gathered on the spot, the distance between main entrance of Sessions Court and the DHQ Hospital etc.

Learned trial court did not record a single finding on the particular testimony of Mirza Hassan PW-1, except reproducing his statement at page No.2 and para No.6 of the judgment. While recording a sentence in a case of capital punishment, trial court cannot absolve itself by mere reproducing the evidence in the judgment. A judgment of conviction in a case of capital punishment should be more categoric and exhaustive. In a case of capital punishment, trial court is legally bound to record every piece of evidence with utmost care and diligence. After recording the same, it is mandatory legal requirement that accused facing the charge must be confronted with each independent piece of evidence and record his answer in his exact words. After the completion of trial, when a trial court will record its findings on the evidence, it will deliberate each piece of evidence and will record its reasons on merits of each part of evidence. In the impugned judgment of conviction which consists of twelves page, half of the judgment is occupied with repetition of already recorded evidence. Learned trial court has failed to discuss the ocular evidence of the occurrence as rendered by the PW-1, 2 and 3. Learned trial court has not discussed the merit of the ocular evidence in this court. The reasons recorded by the learned trial court on page Nos. 10 and 11 are glaring example of perfunctory exercise of jurisdiction. The other material witness of the occurrence is Sharafuddin PW-2. This witness is about 40 years old and he has stated the reason of his presence at the place of occurrence. This witness claimed that he saw the occurrence when the convict/ appellant opened fire from his backside and the deceased fell down on the ground. During cross-examination, the defence badly failed to discredit the testimony of this witness. During cross-examination, the defence put a suggestion regarding his attention to the occurrence after hearing the gunshot but he answered the same in negative and stated further that he is direct witness of the occurrence. After examining the ocular evidence of the prosecution witness discussed above, we are of the considered view that all the three eye-witnesses have narrated the true facts and there is not a slightest contradiction in their statements. PW-3 Syed Afsar Ali Shah who had arrested the witness on the spot with the crime weapon has no reasons to depose falsely against the convict/ appellant. His presence on the spot of occurrence was never disputed by the defence. PW-1 Mirza Hassan has explained the reason of his being there on the spot of occurrence. This witness has verified the presence of PW-3 at the place of occurrence.

1. There is sufficient corroboratory/ confirmatory evidence on record which consists of autopsy report Ex.PW-5/ A. PW-5 Doctor Tahir Zaman has verified the contents of document Ex.PW-5/ A. Examination of entry wounds and exist wounds described in the document Ex.PW-5/ A are in consonance with the ocular testimony of eye-witness Mirza Hassan PW-1.

2. Document site plan Ex. PW-11/ B shows the location of the convict/ appellant at point No.1, of the deceased Sher Nafas Khan at point No.2, PW-1 Mirza Hassan at point No.3, PW-8 and 9 at point No.4, PW-3 at point No.6. The location of PW-2 Sharafuddin is not explained in the document Ex.PW-11/ B and the document site inspection note Ex-PW-11/C. However, non-mentioning the location of this PW does not affect his testimony.

3. Crime empties vie seizure memo. Ex.PW-9/ B are duly verified by the PW-9 Rizwan Ali. Crime weapon vide seizure memo. Ex PW-9/ A was duly verified by the PW-9 Rizwan Ali. FSL report Ex.PW/ 7/C corroborates prosecution version the report of Forensic medicine and toxicology. Ex.PW-7/B ruled out that all the organs livers, lungs, brain, stomach, spleen, kidneys and large intestine are free from any contamination of poison and drugs. This evidence corroborates the opinion of death as recorded by the PW-5 in the document Ex.PW-5/ A.

4. The arguments of learned counsel for the convict/ appellant regarding the proof of the motive behind the occurrence is extremely flimsy. On this point, we are, of the opinion that weakness or absence of motive is not fatal to the prosecution case.

In the case cited, "Khalid Mehmood and others v. The State" (2011 SCMR 664) a full bench of hon'ble Supreme Court of Pakistan has held that:

2024 Y L R 2582

[Chief Court Gilgit Baltistan]

Before Ali Baig C.J and Jahanzeb Khan, J

Nadeem Farid---Petitioner

Versus

The State through Complainant Amanuullah---Respondent

Criminal Misc. 83 of 2024, decided on 27th March, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 406, 409, 417, 420, 465, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---Embezzlement and corruption---Bail, grant of---Further inquiry---Rule of consistency---Record transpired that the accused/petitioner had been implicated in the offences which were prima facie not attracted against him---No denial of the fact that the Hospital concerned was primarily accountable for the said embezzlement and corruption according to the rules, being sole custodian of the concerned department, but it seemed that the liability had been malafidely/dishonestly shifted to junior staff, which was not even the concerned/ministerial staff---This was against the law/rules and such dishonest act of the concerned authority created serious doubts and dents in the case of the prosecution---Main co-accused Medical Superintendent of the Hospital and contractor, who were directly nominated in the promptly lodged FIR and allegedly specific role had been attributed to them by the complainant, had been enlarged on bail by the Trial Court, which also attracted the universal, "Rule of Consistency" in favor of the present accused/petitioner---Undoubtedly, all the alleged offences were bailable, except the offence under S.409, P.P.C, which fell within the ambit of prohibitory clause of S.497, Cr.P.C, which prima facie was not attracted in the present case to the extent of the present accused/petitioner---Furthermore, the complainant present in Court appeared before the Court on his own accord and stated at bar that he had neither alleged nor nominated the present accused/petitioner in the FIR for the commission of alleged offences and went on to say that had no complaint against the present accused/petitioner---Perusal of the record revealed that one of main accused/Cashier was still at large and the respondent/State had taken no action against him---No specific amount or figure of alleged embezzlement amount by the present accused/ petitioner had been mentioned in the FIR or anywhere in the record---First Information Report had been lodged with an inordinate and unexplained delay of almost four years, which created serious dents and doubts in the prosecution story---Whole case of prosecution was based on documentary evidence, which was already in the prosecution file---Present petitioner was no more required for further investigation purposes and there was no chance of tempering of record of the case---Concession of bail could not be withheld by way of punishments---Accused could not be kept behind the bars for an indefinite period, when co-accused had been granted bail---Connection of the accused with the commission of alleged offences was to be determined by the Trial Court after recording the evidence---Matter in hand required further probe into the guilt of the petitioner---In such like cases grant of bail is a rule and refusal thereof is an exception---Case of the accused/ petitioner squarely fell within the ambit of S.497(2), Cr.P.C, entitling him for the concession of post arrest bail and the same was allowed, in circumstances.

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

----S. 497---Bail---Observations made by Court in bail orders---Scope---Observations made by Court in bail orders are tentative in nature, which should not prejudice the trial of the case.

Amjad Hussain, Adnan Hussain and Waqas Ahmed for the Petitioner.

Faqir Shah, Special Prosecutor for the State/Anti-Corruption.

Malik Sherbaz Khan Addl. AG for the State.

Date of hearing: 27th March, 2024.

Order

Jahanzeb Khan, J.---Consequent upon refusal of concession of bail to the accused/ petitioner namely Nadeem Farid son of Fareen Khan, by the learned Sessions "Judge/ Incharge Anti-Corruption Gilgit, vide order dated 12-03-2024 passed in B.A No.11/2024, the accused/ petitioner has approached this Court by filing the petition in hand under sections 161, 471 /468 /465/ 420/ 417/ 409/406, P.P.C read with section 5(2), PCA 1947, for relief of post arrest bail in case FIR No.05/2024 registered at Police Station Anti-Corruption Gilgit.

1. Brief story of prosecution as elucidated in the FIR is that the complainant namely Amnaullah resident of Paltani Muhallah, President Gilgit-Baltistan Traders Development Organization, got registered an FIR bearing No.05/2024 under sections 161, 471/468 /465/420/ 417/409/406, P.P.C read with section 5(2) PCA 1947 against the accused/ petitioner along with co-accused registered at PS Anti--Corruption Gilgit.

2. Initially, the accused/petitioner filed a Bail Application bearing No.11/2024 under the section 497, Cr.P.C before the learned Sessions Judge/ Incharge Anti-Corruption Gilgit, which was dismissed by the learned Judge Anti-Corruption Gilgit, after hearing contentions of both the parties. Feeling aggrieved from the said order the accused/ petitioner has preferred this petition seeking his post arrest bail.

3. Learned counsel for the petitioner/ accused M/s. Amjad Hussain, Adnan Hussain and Waqas Ahmed Advocates argued that the accused/ petitioner is innocent and the FIR has been lodged against the accused/ petitioner mala fidely to implicate him in the instant case as there is no independent and convincing evidence available on record to connect the petitioner/ accused with the commission of offences mentioned in the FIR. Learned counsel for the accused/petitioner submitted that the present accused/petitioner has no connection with the alleged allegations, the accused/ petitioner is a Store-Keeper and he was not responsible for the alleged commission of offences as described in the FIR. They argued that the items of Local Purchase (LP) have no direct link with the Store-Keeper rather LP items are directly linked with the Contractor and the patient and the beneficiary of the alleged transaction is one Kamil Jan, who has been enlarged on bail by the learned Special Judge Anti-Corruption Gilgit vide order dated 14-03-2023. Learned counsel submitted that the co-accused Dr. Ahmed Hassan Medical Superintendent City Hospital Gilgit and contractor Kamil Jan who were also nominated in the promptly lodged FIR but interestingly the have been exonerated and they have been granted bail, therefore, rule of consistency also fully attracts in the instant case in favor of the accused/ petitioner and the accused/ petitioner is entitled for concession of bail. He further submitted that all the alleged offences don not fall within the ambit of the prohibitory clause of section 497, Cr.P.C, except section 409, P.P.C which does not attract in the instant case and challan of the case been submitted before the trial court and investigation of the case is completed and the petitioner/ accused is no more required for further investigation, therefore, Keeping the accused/ petitioner behind the bars would serve no fruitful purpose. Lastly, the learned counsel submitted that the petitioner/ accused will never abuse or misuse the bail facility if this Honourable Court will release him on bail by accepting this petition. With these submissions he prayed for acceptance of the instant petition.

4. Conversely, learned Special Prosecutor for the State controverted the arguments advanced by the learned counsel for the accused/ petitioner and contended that the on written complaint of the complainant namely Amanullah President Gilgit-Baltistan Traders Development Organization, an inquiry was conducted against the MS Ahmed Hassan, Contractor Kamil Jan and Store-Keeper Nadeem Farid, as they were directly nominated by the complainant in his written complaint and as sequel to it the concerned officials/I.O of Anti-Corruption Department sought approval from the Chief Secretary Gilgit-Baltistan regarding the Local Purchase, which is for poor and destitute people who are admitted to the hospital for surgical procedure etc. Learned Special Prosecutor argued that the Store-Keeper is mainly responsible for the said corruption as he has pivotal role in the concerned Department/Hospital. All the receipts/ Billats bear signatures of Store-Keeper and the MS which is an essential regulation/ procedure of the department. They further submitted that all the offences are non-bailable and offence under section 409, P.P.C entails imprisonment for life or imprisonment for a period of 10 years and falls under the purview of prohibitory clause of section 497, Cr.P.C. They further submitted that the petitioner/ accused is directly nominated in the promptly lodged FIR. Statement of the present accused/ petitioner and the material available on record fully connects the accused/ petitioner with the commission of alleged offences and prima facie the prosecution has sufficient evidence in support of its version. With these submissions, he prayed for dismissal of this bail petition to meet the ends of justice.

5. We considered the arguments advanced by the learned counsel for the parties with due care and perused the available record and deliberated.

2024 Y L R 2602

[Chief Court Gilgit Baltistan]

Before Jahanzeb Khan, J

Azam---Petitioner

Versus

The State---Respondent

Criminal Misc. No. 61 of 2024, decided on 18th March, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), S. 364-A---Kidnapping---Bail, grant of---Further inquiry---Accused was charged for kidnapping minor daughter of complainant---Record transpired that petitioner was neither directly nominated in the promptly lodged FIR nor any specific role had been attributed to him---No incriminating evidence was available or collected against the present accused/petitioner during course of investigation nor witnesses had deposed against him---Sufficient material was not available to substantiate commission of crime against the petitioner/accused---Case set up by the prosecution against the petitioner/accused did not appeal to common sense---Moreover, it appeared that the accused/petitioner had falsely been implicated in the present case for commission of alleged offence which prima facie was not attracted against the present accused/petitioner---Record showed that the complainant party made an unsuccessful attempt to widen the net to involve, implicate or drag maximum family members of the nominated accused mentioned in the FIR with mala fide intentions---Offence under S.364-A, P.P.C, falls within the ambit of prohibitory clause of S.497, Cr.P.C, which prima facie was not attracted in the present case to the extent of the present accused/petitioner---Matter in hand required further probe into the guilt of the accused/petitioner---In such like cases grant of bail is a rule and refusal is an exception---Accused/petitioner was behind the bars for the last couple of months, waiting for commencement of the trial of the case---Case of the accused/petitioner squarely fell within the ambit of S.497(2), Cr.P.C, entitling him for concession of post arrest bail and the same was allowed.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Observations made in bail orders are tentative in nature, which should not prejudice the trial of the case.

Arif Nazir for the Petitioner.

Malik Sherbaz Khan Addl. AG for the State.

Zahid Ali Baig and Muhammad Wazir Khan for the Complainant.

Date of hearing: 18th March, 2024.

Order

Jahanzeb Khan, J.---Consequent upon refusal of concession of bail to the accused/ petitioner namely Azam son of Yusaf, by the learned Sessions Judge Gilgit, vide order dated 20-02-2024 passed in B.A No.57/2024, the accused/ petitioner has approached this Court by filing the petition in hand under section 497 Cr.P.C for relief of post arrest bail in case FIR No.10/ 2024 registered at Police Station Danyore, Gilgit.

1. Brief story of prosecution as elucidated in the FIR is that:

"On 20-01-2024 at night the, the complainant got registered the case FIR No. 10/2024 at Police Station Danyore under section 364-A, P.P.C with allegations that the accused/petitioner namely Farid son of the accused/petitioner has kidnaped his minor daughter."

1. Initially, the accused/ petitioner filed a Bail Application bearing No.57/2024 under the section 497, Cr.P.C before the learned Sessions Judge Gilgit, which was dismissed by the learned Sessions Judge Gilgit, after hearing contentions of both the parties. Feeling aggrieved from the said order the accused/ petitioner has preferred this petition seeking his post arrest bail.

2. Learned counsel for the petitioner/ accused Mr. Arif Nazir advocate argued that the accused/ petitioner is innocent and the FIR has been lodged against the accused/ petitioner malafidely to implicate him in the instant case as there is no independent and convincing evidence available on record to connect the petitioner/ accused with the commission of offences mentioned in the FIR. Learned counsel for the accused/petitioner submitted that the present accused/petitioner is neither directly nominated in the FIR nor has any connection with the alleged allegations and the local police has apprehended the present accused/ petitioner for the only reason that the present accused/ petitioner is the father of one Farid, who has been directly nominated in the FIR. Learned counsel argued that the impugned order passed by the learned Sessions Judge Gilgit is illegal and against the mandate of law, as the learned Sessions Judge has only relied upon the statement of one PW namely Latif and has ignored all the material facts available on the record. He further submitted that accused/petitioner is not a habitual offender and has no criminal history and if the petitioner is granted bail, the accused/petitioner is ready to furnish solvent sureties to the satisfaction of this Court. Lastly. the learned counsel submitted that the petitioner/accused, will never abuse or misuse the bail facility if this Honourable Court will release him on bail by accepting this petition. With these submissions he prayed for acceptance of the instant petition.

3. Conversely, learned Addl. AG Malik Sherbaz Khan for the State and learned counsel for the complainant M/s Zahid Ali Baig and Muhammad Wazir Khan advocates controverted the arguments advanced by the learned counsel for the accused/ petitioner and contended that offence under section 364-A, PP is non-bailable and entails death punishment/ imprisonment for 14 years, which falls within the ambit of prohibitory clause of section 497, Cr.P.C. They further submitted that the statements of PWs corroborate the version of the prosecution and connect the accused/ petitioner with the alleged offence as mentioned in the FIR. With these submissions, they prayed for dismissal of this bail petition to meet the ends of justice.

4. 1 have hearkened the arguments pro-et-contra advanced by the learned counsel for the parties with due care and perused the available record and deliberated.

5. Tentative assessment of the record transpires that the present accused/ petitioner is neither directly nominated in the promptly lodged FIR nor any specific role has been attributed to him. No incriminating evidence is available or collected against the present accused/ petitioner during course of investigation nor witnesses had deposed against him. Sufficient material is not available to substantiate commission of crime against the petitioner/ accused. Case set up by the prosecution against the petitioner/ accused does not appeal to common sense. It appears that the accused/ petitioner has falsely been implicated in the instant case for commission of alleged offence which prima facie does not attract against the present accused/ petitioner From the perusal of the prosecution record, it is evident that the complainant party made an unsuccessful attempt to widen the net to involve, implicate or drag maximum family members of the nominated accused mentioned in the FIR with mala fide intentions in the case in hand. Undoubtedly, the offence under section 364-A, P.P.C falls within the ambit of prohibitory clause of section 497, Cr.P.C, which prima facie does not attract in the instant case to the extent of the present accused/petitioner. The matter in hand requires further probe into the guilt of the accused/petitioner. In such like cases grant of bail is a rule and refusal is an exception. In the above circumstances, I am failed to find any exceptional reason to refuse the concession of bail to the present accused/petitioner. The accused/ petitioner is behind the bars for last couple of months, waiting for commencement of the trial of the case. In the above circumstances, I am of the firm view that the case of the accused/ petitioner squarely falls within the ambit of Section 497(2), Cr.P.C, entitling the present accused/ petitioner for concession of post arrest bail and the same is allowed.

2024 Y L R 910

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

MUHAMMAD KHALIQ---Appellant

Versus

GHULAM FATIMA and 4 others---Respondents

Civil Appeal No. 59 of 2017, decided on 19th June, 2023.

Specific Relief Act (I of 1877)---

----S. 12---Suit for specific performance of agreement to sell---Power of attorney---Scope---Suit filed by the plaintiff regarding agreement to sell/ transfer of proprietary rights qua suit property was dismissed---Allegedly, the agreement to sell was executed by the attorney of original owner in favour of appellant---Perusal of record revealed that regarding general power of attorney the authority had not been given to general attorney for executing agreement to sell to appellant by original owner---Script of power of attorney did not disclose that she was allowed to perform agreement to sell with someone through the said general power, moreover, in the general power of attorney she was not given power to sell the house or courtyard, whereas, through agreement to sell 10 Marla piece of land along with a concrete house and courtyard were sold in lieu of rupees ten lac (1000000/-rupees)---Report of Patwari revealed that total share of land of original owner and others had 1 kanal 10 marla 2 sarsahi, which had to be divided among four daughters in equal proportions---In such like situation, original owner had made an agreement from her share---As per stance/statement of appellant, the house was stated to be in possession of respondent, hence, it could be said that original owner performed the agreement regarding the house which was not in her possession---As far as the matter of cognovits given by original owner was concerned, respondent was not entitled under law to execute agreement to sell of the land measuring 10 Marlas along with house which was above her original share---If she had given the said cognovits in favour of appellant/plaintiff even then the same had no value in the eye of law---Circumstances established that the court below had not committed any illegality or irregularity while passing the impugned judgment and decree, hence, the appeal was dismissed accordingly.

Ch. Muhammad Ilyas for Appellant.

Zahid ul Hassan Chaudhary for Respondent No.1.

2024 Y L R 2666

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Mariam Jan---Petitioner

Versus

Ilyas Khan and 13 others---Respondents

Revision Petition No. 110 of 2023, decided on 25th October, 2023.

Civil Procedure Code (V of 1908)---

----O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 54---Suit for permanent injunction---Temporary injunction---Grant or refusal of---Ingredients---Petitioner/plaintiff sought grant of status quorestraining the respondents/ defendants from raising further construction over the suit land but same was denied, which order was maintained by the Appellate court---Plea of the respondent was that they had invested a huge amount and the construction was almost completed---Validity---Record (including the report of Commission) revealed that respondents had completed three stories construction work in the suit-land while infact he obtained the proprietary rights of the same under law (i.e. Azad Jammu and Kashmir Regularization of Nautors and Grant of Khalsa Land Ordinance 1974) in lieu of Rs.8,54,007/= and the petitioner aggrieved from the Proprietary Rights Transfer Order/ Sanction of the suit land in favour of respondents, had filed an appeal before the concerned Commissioner---Thus, until and unless, the fact of proprietary rights of suit -land obtained by respondent was not decided by the competent fora i.e. Commissioner and above, no contrary stance could be entertained qua granted land in favour of respondent---Prima facie case, irreparable loss and balance of convenience are three pre-requisites introduced by law qua adjudication of grant or refusal of stay order---All said three ingredient are to be judged in a manner that if these pre-requisites are simultaneously, fulfilled, stay order is granted while on other hand in absence of any one of the said qualified criterion stay order cannot be issued---Prima-facie case is ascertained on the strength of facts flowing from the pleadings which in ordinarily and cursory manner convinces a prudent mind in a way that if evidence and facts remain intact a decree can ultimately be passed, while the irreparable loss in short is a loss which cannot be calculated in terms of money and balance of convenience follows the tentative assessment of other two ingredients above---Rationally the prima-facie case requirement governs the other two ingredients---Phrase prima facie case in is true parlance denotes a triable case where some substantial questions are to be probed for that matter to be tried---Injunction cannot be granted unless all the three conditions for grant of injunction co-exist---Injunction is an equitable relief---An applicant at the eve of asking for interim injunction must come with clean hands and establish his case on the weighting operatus of said three ingredient in order to obtain equitable discretionary relief---Thus, in the present case, issuance of temporary injunction would definitely create a new situation contrary to the ground realities pertaining to possession based upon proprietary rights as three storied building had already been constructed on the suit-land by the respondent and ongoing construction was bearing completion, therefore, balance of convenience laid in favour of the respondent and ad interim injunction stopping the construction at this stage, could cause irreparable loss to him rather than the petitioner---Grant of proprietary rights by competent authority prima facie spoke for the respondent---No illegality or infirmity was noticed in the impugned orders disallowing the status quo---Revision petition, being devoid of force, was dismissed, in circumstances.

2020 YLR 63; 2010 MLD 1267; 2007 YLR 1794; 2020 CLC 1094 and 2017 MLD 1493 ref.

Riaz Ahmed Alam for the Petitioner.

Raja Inamullah Khan for Respondents.

Order

Syed Shahid Bahar, J.---This revision petition is directed against the order passed by District Judge, Mirpur dated 31.08.2023, whereby the order passed by Senior Civil Judge, Mirpur dated 06.07.2023, was set-aside, however, the order to the extent of disallowing status-quo was maintained.

1. Brief facts of the case are that the plaintiff/petitioner filed a suit for perpetual injunction along with prayer for issuance of interim relief/status-quo before Senior Civil Judge, Mirpur against the defendants/respondents regarding land comprising survey Nos. 537, 538, 539 and 539 min, situated at village Kaneli Tehsil and District Mirpur. An application for interim injunction was also filed before the trial Court, whereupon initially temporary injunction was issued in favour of plaintiff against the defendants. After filing of the aforesaid suit, the defendants were summoned who appeared before the court of Senior Civil Judge/trial Court, Mirpur and filed objections upon application for interim relief. After hearing arguments, the learned Senior Civil Judge, Mipur/trial Court vide its order dated 06.07.2023 dismissed the original suit of the plaintiff/petitioner. Against the order of trial Court, the appellant/petitioner filed an appeal before the learned District Judge, Mirpur, who after hearing arguments, vide impugned decision dated 31.08 2023 set-aside the judgment of trial Court and remanded the case to the trial Court with the direction to decide the matter after hearing both parties on merit, however, the interim injunction was disallowed and agreed with the findings of the learned trial Court. Hence, this revision petition.

3 Mr. Riaz Ahmed Alam, the erudite counsel for the petitioner reiterated the fact as narrated in the petition and contended that the findings of the learned courts below are against the law and facts and liable to be set-aside. The learned counsel vehemently contended that the Commission reported that the non-petitioner Muhammad Nazir is constructing house upon the land survey No. 538, survey No. 537 is owned property/proprietary land, while survey Nos.538 and 539 both are "arahk", the petitioner is the owners of the land of village and residing there and under Ailan No.17(12), anyone from the village can challenge the same if the 'arahk dar' are not fulfilling the relevant requirements and committing violation, hence, in this perspective, the non-petitioners cannot be allowed to make construction upon the said land, illegally, hence, the learned courts below have failed to understand the controversy and arrived at wrong conclusion by allowing the non-petitioners to continue his construction/building house. The learned counsel finally prayed that the judgment of the learned District Judge dated 31.08.2023 to the extent of status-quo as well as the judgment of the learned trial Court dated 06.07.2023 may be set at naught.

1. While controverting the arguments of the learned counsel for the petitioner, Raja Inamullah Khan, counsel for the respondents contended that the non-petitioners are the owners of the suit land and they are making construction upon their land and petitioner has no concerned with the said property. He vehemently contended that the suit land is "arahak" and same was transferred to respondents through mutation No.1116 under the relevant law, i.e. AJ&K Regularization of Nutors and Grant of Khalsa Land Ordinance, 1974 (Amended in year 2021), hence, proprietary rights have been shifted properly in accordance with law out of land survey Nos.538 and 539 in favour of respondent No. 3/Muhammad Nazir Khan. The learned counsel defended the impugned order on all counts and lastly prayed for dismissal of the revision petition.

2. I have heard the learned counsel for the parties and gone through the record of the case with due care.

3. After deep perusal of record it transpires, particularly, from the report of Commission that respondent No.3 has completed three stories construction work in the suit land while infact land measuring 2 kanal was remained in his possession pertaining to survey Nos. 539 and 538 and he obtained the proprietary rights of the same under AJ&K Regularization of Nutors and Grant of Khalsa Land Ordinance, 1974 in lieu of Rs.8,54,007/-. While in juxta-position the petitioners herein aggrieved from the Proprietary Rights Transfer Order/ Sanction of the suit land in favour of respondents by filing an appeal before Commissioner, Mirpur Division, Mirpur; that too, the petitioner has also, and while in previous round of litigation, the Hon'ble Supreme Court of AJ&K has declined the relief pertaining to survey numbers 537 in favour of petitioners vide its decision dated 26.05.2023.

4. Until and unless, the fact of proprietary rights of suit land obtained by respondent No. 3 are not decided by the competent fora i.e. Commissioner, Mirpur Division, no contrary stance can be entertained qua granted a land in favour of respondent No. 3.

5. Three pre-requisites introduced by law quo adjudication of grant or refusal of stay order speaks vide infra:,-

i. Prima-facie case, ii. Irreparable loss, iii. Balance of convenience.

1. All three ingredient supra are to be judged in a manner that if these pre-requisites are simultaneously fulfilled, stay order is granted while on other hand in absence of any one of the above qualified criterion stay order cannot be issued, as the above ingredients breath from the Joint/Combined soul.

2. Prima-facie case is ascertained on the strength of facts flowing from the pleadings which in ordinarily and cursory angle convince a prudent mind in a way that if evidence and facts remain intact a decree can ultimately be passed, while the irreparable loss in short is a loss which cannot be calculated in terms of money and balance of convenience follow the tentative assessment of other 2 ingredients above, even a person enjoying a right with legal backing cannot be put in disadvantageous position.

(Underlining is mine)

1. Rationally the prima-facie case governs the other 2 ingredients the phrase prima facie case in its true paralance denotes a triable case where some substantial questions are to be probed are for that matter to be tried.

2. Injunction cannot be granted unless all the three conditions for grant of injunction co-exist.1

3. Injunction is an equitable relief based on well-known established principles.2

2024 Y L R 2791

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Sohrab Younas---Petitioner

Versus

Custodian of Evacuee Property Azad Jammu and Kashmir, Muzaffarabad and others---Respondents

Writ Petition No. 1348 of 2019, decided on 12th June, 2024.

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

----Arts. 19 & 44---Audi alteram partem, doctrine of---Right to fair trial---In pursuance of the ex-parte order passed in the year 2013 by the Custodian Evacuee Property, the modification was madein relevant Proprietary Rights Transfer Order (PRTO) qua land having been allotted to late father of the petitioner in the year 1979---Petitioner filed constitutional petition challenging dismissal of his review petition filed in the year 2015 against the said ex-parte/ modification order(s)---Assertion of the petitioner was that he, and the other legal heirs, had no knowledge of the impugned orders as they were residing abroad, thus, a review petition was filed before the respondent (Custodian of Evacuee Property) after getting knowledge of the impugned orders---Validity---Record revealed that land measuring 5 kanal 9 marlas out of survey No.163 was allotted in the name of father of petitioner through allotment chit dated 22.12.1979 and subsequently PRTO dated 07.09.1989 was also issued--- It was an admitted fact reflecting from the (words/contents of) impugned decision that order qua modification was given on back of the petitioner and proforma non-petitioners, although by the same (words/contents) the Custodian also emphasized that the decision was being passed on merit without giving any benefit to the respondents for being ex-parte proceedings in absence of petitioner and others---On the other hand, the petitioner had taken a specific stance before the Custodian regarding inability not to defend their allotment, as to how the process of summoning of the petitioner itself was defective elaborating that the ex-parte proceedings were conducted after proclamation in the local newspaper whereas the petitioner and other stake-holders were living abroad at relevant time---Record also revealed another important fact that the Custodian, during the proceedings, sought inquiry/ report from the Commissioner (Rehabilitation) pertaining to status of property, which inquiry/report was pending adjudication---Impugned decision was not sustainable as the modification took place in the allotment at the back of the necessary party as well as the summoning was defective, thus, doctrine of audi alteram partem had been violated----Right of fair trial was recognized by the Constitution and ex-parte modification in the allotment without adopting due process of law and providing opportunity of hearing was bad in law---High Court set-aside the impugned decision and the case was deemed to be pending before the Custodian for de novo decision on merits, after receiving the supra report of the Commissioner and after giving full opportunity of hearing to the parties concerned---Writ petition was allowed accordingly.

Barrister Adnan Nawaz Khan for the Petitioner.

Syed Nazir Hussain Shah Kazmi for Respondent No. 3.

Judgment

Syed Shahid Bahar, J.---Through the titled writ petition filed under Article 44 of the Azad Jammu and Kashmir Interim Constitution, 1974, the petitioner is seeking infra relief:-

"It is most respectfully prayed that this writ petition may graciously be accepted and the impugned order dated 03.07.2019 (along with the order dated 30.12.2013 and notification dated 30.01.2014) may kindly be set aside and consequently, the allotment in favour of respondent No. 3 may kindly be cancelled by declaring the same as illegal, void ab-initio and without any legal effect upon the rights of the petitioner by restoring the PRTO of the petitioner's father dated 07.03.1989 in its original form, in the interest of justice."

Summarized facts of the case as per petitioner are that land measuring 5 kanal 6 marla from survey No 163 was allotted to father of the petitioner (Muhammad Younis) vide allotment chit, dated 22.12.1979. Petitioner contended that PRTO dated 07.09.1989 were issued in pursuance of allotment chit dated 22.12.1979 which was modified in compliance of ex-parte order of learned Custodian Evacuee Property dated 30.12.2013 on 30.01.2014 and allotment to the extent of 3 kanal was cancelled. Petitioner alleged that he and the proforma respondent had no knowledge of the order dated 30.12.2013 and modification dated 30.01.2014 (as they are residing in United-Kingdom), thus, filed a review petition before the respondent No.1 (Custodian of Evacuee Property) on 28.09.2015 after getting knowledge of the order dated 30.12.2013 and modification dated 30.01.2014. Parties submitted written arguments before respondent No.1 consequently, the respondent No.1 dismissed the review Petition of the petitioner vide impugned decision dated 03.07.2019.

Written statement has been filed on behalf of respondent No. 3, wherein the claim of the petitioner has been negated and contended that all. the allotment of father of petitioner was illegal, hence, PRTO was issued in his favour was also illegal and was rightly cancelled/modified by the learned Custodian after due process of law. Respondent No.3 contended that land under survey No. 163 min measuring 2 kanals was allotted in the name of non-petitioner No. 3 according to law and entitlement vide allotment chit dated 04.10.1969 out of land measuring 10 kanals 9 marlas, whereas, land, measuring 3 kanals was illegally allotted in the name of Muhammad Younas vide allotment chit dated 22.12.1979, which was rightly cancelled learned by the Custodian.

Barrister Adnan Nawaz Khan, the learned counsel for the petitioner submitted written arguments wherein he contended that the matter of determination of respective rights of all the allottees of survey number 163 is still subjudice before Commissioner Rehabilitation in pursuance of order of learned Custodian, Evacuee Property dated 15.07.1997 and respondent No. 3 by concealing this fact, filed review petition before learned Custodian and obtained the impugned order which is not sustainable on this sole ground as the same violates/contradicts the order of learned Custodian, Evacuee Property dated 15.07.1997 through which the respective rights of all the allotees are yet to be determined by the Rehabilitation Commissioner. The learned counsel prayed that by accepting the instant writ, petition, the impugned order dated 03.07.2019 (along with the order dated 30.12.2013 and modification dated 30.01.2014) may be set aside and consequently, the allotment in favour of the respondent No.3 may kindly be cancelled by declaring the same as illegal, void ab-initio and without any legal effect upon the rights of the petitioner by restoring the PRTO of the petitioner's father dated 07.03.1989 in its original

In reply, M/s Syed Nazir Hussain Shah Kazmi and Syed Muzahir Hussain Shah Kazmi, Advocates for respondent No. 3 also submitted written arguments and contended therein that the allotment of father of the petitioner was illegal, hence, the Proprietary Rights Transfer Order issued in his favour was also illegal and was rightly cancelled/modified by the learned Custodian after due process of law. The learned counsel vehemently contended that the subsequent allotment has no legal value in the eye of law, in this regard reliance has been placed upon 2000 MLD 1305 and 2017 MLD 84. The learned counsel forcefully contended that the second revision before the learned Custodian was not maintainable and has rightly been dismissed by the learned Custodian. In this regard, the learned counsel referred to and relied upon 2017 MLD 84. The learned counsel defended the impugned order on all counts and prayed for dismissal of the writ petition.

I have gone through the written arguments and perused the record of the case with utmost care.

It depicts from record that land measuring 5 kanal 9 marlas out of survey No. 163 was allotted in the name of father of petitioner (M. Youas) through allotment chit dated 22.12.1979 (listed with the writ petition as Annexure PA) and subsequently (PRTO) i.e. Proprietary Rights Transfer Order dated 07.09.1989 were also issued while modification was made in the (PRTO) in compliance of the ex-parte order of learned Custodian Excauee Property dated 30.12.2013 vide amended order dated 30.01.2014. It is an admitted fact reflecting from the decision impugned that order qua modification was given on back of the petitioner and proforma non-petitioners!. It is useful to reproduce the relevant para of the decision of learned Custodian in this regard as under:

Whereas, the petitioner has taken a specific stance; before the learned Custodian as to how the process Of summoning of the petitioner itself is defective, resultant of which they Could not defend their allotment at the eve of modification took place before the learned Custodian. Relevant para of the judgment impugned reveals as infra:-

At the outset another important fact going to the roots of case remained unattended by the learned Custodian while passing the impugned judgment that the learned Custodian pertaining to same property has remanded the matter with following directions:-

2024 Y L R 59

[Islamabad]

Before Babar Sattar, J

HAMID KHAN through Authorized Attorney---Petitioner

Versus

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

Writ Petition No. 2617 of 2023, decided on 2nd October, 2023.

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

----S. 2---Constitution of Pakistan, Art. 199---Constitutional petition---Exit Control List (ECL)---Placing name in ECL---Object, purpose and scope---Person residing abroad---Effect---Petitioner was residing abroad and was aggrieved of placing his name on Exit Control List by authorities---Validity---Authorities could not exercise powers under S. 2 of Exit from Pakistan (Control) Ordinance, 1981, placing name of petitioner on Exit Control List with knowledge of the fact that he was not in Pakistan---Exercise of such power would not serve the purpose of preventing petitioner from exiting Pakistan---Object and purpose of the provision of Exit from Pakistan (Control) Ordinance, 1981, was to prevent citizens from seeking to exit from Pakistan to a destination abroad and not to prevent citizens from returning to Pakistan---High Court set aside order placing name of petitioner on Exit Control List as the authority so exercised was in breach of S. 2 of Exit from Pakistan (Control) Ordinance, 1981---High Court did not restrain the authorities from arresting petitioner on his return to Pakistan for the purposes of a trial in accordance with orders of Trial Court---Petitioner could seek protection against such arrest by filing appropriate application seeking transitory bail to appear before Trial Court---Constitutional petition was allowed, in circumstances.

Talha Javed for Petitioner.

Fazal ur Rehman Niazi, D.A.G.

Hassnain Raza, SPP for SECP.

Tariq Pervez, Director, FIA.

2024 Y L R 185

[Islamabad]

Before Tariq Mehmood Jahangiri, J

Malik ZULFIQAR AHMED---Petitioner

Versus

The STATE and 2 others---Respondents

Writ Petition No. 1413-Q of 2022, decided on 27th October, 2022.

Penal Code (XLV of 1860)---

----S.406---Criminal Procedure Code (V of 1898), Ss.561-A & 154---Constitution of Pakistan, Art. 199---Constitutional petition---Quashing of FIR---Contractual violation---Dispute of civil nature---Petitioner/accused sought quashing of FIR registered against him for non-performance of agreement to sell---Validity---Complainant stated in FIR that he had given money to petitioner/accused for purchase of land and not by way of entrustment---Matter in dispute was purely of civil nature---No limit could put a clog on exercise of inherent powers of High Court to make such orders as could be necessary to give effect in order to prevent abuse of process of any Court or otherwise to secure ends of justice---High Court quashed FIR registered against petitioner/accused---Constitutional petition was allowed, in circumstances.

Muhammad Nawaz v. SHO, Police Station, Sabzi Mandi, Islamabad and others 2017 PCr.LJ 133; Shahid Imran v. The State and others 2011 SCMR 1164; State of Gujarat v. Jaswantlal Nathalal AIR 1968 SC 700; Punjab National Bank and others v. Surendra Prasad Sinha 1994 PSC (Crl) 768; Shaukat Ali Sagar v. Station House Officer, Police Station Batala Colony, Faisalabad and 5 others 2006 PCr.LJ 1900; Ghulam Ali v. Javid and another 1989 PCr.LJ 507; Nga Po Seik v. Emperor 1917 Indian Cases 824; Kornai Lal Dutta v. The State AIR 1951 Cal 206; Badar Ur Islam v. District Police Officer, Faisalabad and 3 others 2007 YLR 2766; Rana Saeed Ullah v. Inspector General of Police and 6 others 2013 YLR 2513; Umair Aslam v. Station House Officer and 7 others 2014 PCr.LJ 1305; Mufti Pervaiz Manzoor v. The State and 2 others 2011 PCr.LJ 1241; Rafiq Haji Usman v. Chairman NAB and another 2015 SCMR 1575; Miraj Khan v. Gul Ahmed and 3 others 2000 SCMR 122; Raja Haq Nawaz v. Muhammad Afzal and others and Raja Haq Nawaz v. Subedar Sakhi Muhammad and others 1968 SCMR 1256 and Rizwana Bibi v. The State and another 2012 SCMR 94 rel.

Mian Nadeem Aziz Jatala for Petitioner.

Waqar Hanif Abbasi for Respondent No.2.

Fahad Ali, State Counsel.

2024 Y L R 355

[Islamabad]

Before Aamer Farooq, C.J.

Malik TARIQ AYUB---Petitioner

Versus

The STATE through S.H.O., P.S. Shalimar, Islamabad and 3 others---Respondents

Criminal Revision No. 9 of 2023, decided on 8th February, 2023.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(iii), 427, 148 & 149---Criminal Procedure Code (V of 1898), S.367(5)---Qatl-i-amd, attempt to commit qatl-i-amd, mutalahimah, mischief causing damage to the amount of fifty rupees, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Contents of judgment--- Scope--- Accused were awarded life imprisonment for committing murder of the deceased---Complainant filed application for the enhancement of punishment---Normal sentence for qatl-i-amd as ta'zir was death---Court, however, had discretion to award lesser sentence of life imprisonment in case there were mitigating circumstances---Record showed that the Trial Court had lucidly and elaborately dealt with all the issues and on the various aspects of the prosecution case had gone on to hold that the prosecution had proven its case beyond reasonable doubt by placing reliance on the ocular account, medical evidence, recovery as well as motive---However, while recording conviction and awarding sentence Trial Court had in just one sentence opted for lesser sentence on the basis of mitigating circumstances in the case without dilating the facts as to the referred circumstances---Judgment in such state of affairs was naturally violative of S. 367(5), Cr.P.C., as well as the law propounded by the Superior Courts of the country on the option of the Court to award lesser sentence under S.302(b), P.P.C---Notice was issued to the respondents accordingly.

Abdus Salam v. The State 2000 SCMR 338 and Azmat Khan v. The State 2022 YLR 1158 rel.

2024 Y L R 615

[Islamabad]

Before Arbab Muhammad Tahir, J

ALLAH DITTA through L.Rs. and another---Appellants

Versus

Mst. QUDRAT BIBI through L.Rs. and 2 others---Respondents

R.F.A. No. 41 of 2017, decided on 31st January, 2023.

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

----Arts. 79, 119 & 120---Specific Relief Act (I of 1877), Ss.42, 39 & 54---Oral gift---Proof---Suit for declaration, cancellation of mutation, mandatory and permanent injunction---Brothers attempting to deprive sister from her share in inherited property---Plaintiff (sister) claimed that the defendants/appellants (brothers) in collusion with the revenue officials, got transferred the subject land in their own name vide impugned mutation and deprived the plaintiff from her share in the inherited property---Validity---Appellants virtually asserted that the transfer of the shares by their sisters including respondent No.1 in their favour was indeed a gift/hiba, which could not be revoked at any stage---In order to prove the fact as to gifting of the suit land in the appellant's favour, the appellants were under an obligation to prove such fact by adducing sufficient evidence inspiring confidence in terms of Arts. 119 & 120 of Qanun-e-Shahadat, 1984---Appellants could not produce any independent witness in order to prove the fact regarding voluntarily transferring of the shares of the inherited land by their sisters including respondent No. 1 through mutation in question---No one except appellant No.2, who was indeed a beneficiary of the mutation in question, appeared as defence witness---Although the appellants' sister appeared as defence witness but she showed her inability and ignorance regarding her appearance before the revenue authorities---Said defence witness also did not know the quantum of the land which her father left behind---Appellants placed their case on the impugned mutation, which itself endorsed the fact that it was a Hiba mutation---In order to prove the execution of such a mutation and/or its attestation, at least two attesting witnesses were required to have been produced in terms of Art. 79 of Qanun-e-Shahadat, 1984---Appellants could not produce two attesting witnesses of the impugned mutation---Appellants only produced the son of the Lumberdar as defence witness, who just identified the signatures of his late father---Since the impugned mutation did not take place in the presence of said witness, hence said witness could not be termed to be an attesting witness of the same---Thus, the evidence of said witness led no support to the appellants' case---Appellants claimed that all the three sisters including respondent No. 1 with their free will and consent transferred their shares in the appellants' favour---Had respondent No.1 transferred her share in the appellants' favour, she being a donor could not have instituted a civil suit against the appellants/donees praying inter alia for cancellation of the impugned mutation---Appellants' other sister also categorically admitted during the course of cross-examination that she came to the Court under compulsion, meaning thereby, her statement was procured without her will and consent---Said factors negated the appellants' version that the mutation in question had validly and lawfully been made---Record revealed that no particulars whatsoever of the time, date, place and witnesses of the declaration made by respondent No.1 regarding the said transfer of the suit land in favour of the appellants had been provided by the appellants in their written statement--- Record further suggested that no evidence with respect to such a declaration could be produced by the appellants during the trial---Appeal being devoid of any merit was accordingly dismissed.

PLD 1979 SC 890; 1980 CLC 1483; PLD 1981 SC 165; NLR 1982 Revenue 50; 1983 CLC 1124; PLD 1986 SC 35; 2002 YLR 1680; 2003 CLC 1805; PLD 2004 SC 351; PLD 2005 SC 775; 2006 SCMR 170; 2008 SCMR 1425;

2011 SCMR 8; 2000 CLC 680; 2010 SCMR 342; 2019 SCMR 524; 2020 SCMR 276; 2020 SCMR 2033; 2020 SCMR 352; 2021 SCMR 179; 2021 CLC 579; 2021 SCMR 179; 2022 SCMR 346; 2022 SCMR 1009 and 2022 SCMR 1054 ref.

Abid Hussain and others v. Muhammad Yousaf and others PLD 2022 SC 395 rel.

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

----S. 3---Inheritence--- Fraud--- Void transaction---Effect---Limitation with respect to a void transaction neither runs nor the efflux of time would extinguish the right of the inherence.

(c) Punjab Land Revenue Act (XVII of 1967)---

----S. 42---Mutation entries---Scope---Beneficiary of a mutation is under a legal obligation to prove the original transaction---Mere mutation does not confer any right, title or the ownership of the property---Mutation, which is claimed to be authentic, must be proved by the person, who alleges its authenticity.

Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417; Hakim Khan v. Nazeer Ahmad Lughmani 1992 SCMR 1832; Muhammad Bakhsh v. Ellahi Bukhsh and others 2003 SCMR 286; 2000 SCMR 680; 2020 SCMR 352; 2021 CLC 579 and 2021 SCMR 179 rel.

Zulfiqar Ali Abbasi and Shahid Munir for Appellants.

Ch. Abdur Rehman Bajwa for Respondents.

2024 Y L R 890

[Islamabad]

Before Arbab Muhammad Tahir, J

KANIZ FATIMA through Muhammad Imran Irshad ---Appellant

Versus

TAMIZUL HAQUE and 2 others---Respondents

R.F.A. No. 163 of 2013, decided on 20th March, 2023.

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell immoveable property---Suit seeking specific performance instituted by the appellant had been dismissed---Statement of plaintiff recorded through her attorney---Attorney an alien to the transaction---Effect---Plaintiff/appellant herself filed the suit, however, she did not enter the witness box---Instead, one Mr. "M" entered the witness box on the strength of a power of attorney and recorded his statement on behalf of the appellant---Said Mr. "M" never remained associated with the transaction in dispute in relation to the property---Said witness was not a marginal witness to the agreements or the receipts---Said witness was never personally present when the deal was struck between the parties---In short, nothing deposed by him as witness was within his personal knowledge nor such acts were done by him either independently or pursuant to a power of attorney---Said witness testified the facts which were exclusively in the personal knowledge of the appellant/ plaintiff---Witness admittedly did nothing as attorney of the appellant in relation to the Property and he himself never witnessed anything during the long episode as asserted by the appellant/ plaintiff which commenced from 1993 and concluded in 2009---Said witness was an alien and stranger to the transaction, therefore, his statement was neither admissible nor could be relied upon---Plaintiff/appellant failed to make out a case for grant of the discretionary equitable relief of specific performance---Appeal was accordingly dismissed.

Mst. Jameela Akhter v. Public-at-Large 2002 SCMR 1544; Muhammad Amir v. Khan Babadur and another PLD 1996 SC 267; Khalid Hussain and others v. Nazir Ahmed and others 2121 SCMR 1986; Mst. Shahnaz Begum and others v. Additional District Judge and others PLD 2021 Lah. 69; Narayana Bharatigal Alias v. Ittuli amma and others AIR 1918 Madras 1103; Inayat ur Rehman and others v. Shah Jehan and others 2014 YLR 1978; Rehana Ahson and another v. Zulfiqar Mohammad 2021 CLC 901; Syed Haji Abdul Wahid and another v. Syed Sirajuddin 1998 SCMR 2296; Mst. Shahnaz Akhtar and another v. Syed Ehsan ur Rehman and others 2022 SCMR 1398; Aki Habara Electric Corporation (Pvt.) Ltd. v. Hyper Magnetic Industries (Pvt.) Limited through Chief Executive/ Director/Secretary PLD 2003 Kar. 420; Muhammad Aslam v. Mst. Gulraj Begum 1989 SCMR 1; Shah Nawaz and another v. Nawab Khan PLD 1976 SC 767; Mst. Asma Naz v. Muhammad Younas Qureshi 2003 YLR 587; Lal Baz and another v. Gulab represented by Legal Heirs 1989 CLC 8; Mst. Rasul Bibi v. Qadar Dad and another 1991 MLD 2008 and Mulchand Hemraj v. Jairamdas Chaturbhuj and others AIR 1935 Bombay 287 ref.

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

----S.54---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell immoveable property---Suit seeking specific performance instituted by the appellant had been dismissed---Plaintiff/ appellant could not establish from record the cash payment of sale consideration---Plaintiff could not prove as to how the cash was managed, from which bank account the cash was withdrawn, the statement of such bank account or the sale of any kind of asset, the proceeds of which were paid to the defendant/owner in cash---Plaintiff/ appellant did not adduce in evidence any title documents in respect of the property that were handed over to her along with possession of the property---Plaintiff/ appellant claimed to have executed agreement to sell dated 24-05-1993 and sale agreement dated 07-09-2009 with the defendant/owner---Reasons for delay in execution of the sale agreement i.e. after 17 years from the date of initial agreement to sell, the pendency of the proceedings before the Supreme Court and the fact that the property was not in possession of the owner in the meantime, had not been mentioned in both the agreements---Plaintiff/appellant did not advance any cogent evidence to show that she insisted for transfer of ownership of the Property---Essential elements of a valid contract i.e. free consent of the defendant/owner for execution of the agreements and payment of "consideration", remained unproved, in circumstances---Plaintiff/appellant failed to make out a case for grant of the discretionary equitable relief of specific performance---Appeal was accordingly dismissed.

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell immoveable property---Stamp paper---Doubtful---Suit seeking specific performance instituted by the appellant had been dismissed---Mode of issuance of stamp papers for both the agreements was doubtful---Stamp papers were not properly endorsed by the stamp vendor---Purpose for which the stamp papers were issued, had not been mentioned---Stamp vendors were not produced as witness to depose in her favour by the plaintiff/ appellant--- Agreements were silent with regard to the agreed mode of payment---As per statement of defense witness, the property was in the name of respondent/ defendant/owner---Even in the absence of evidence to the contrary, in order to get a judgment as to her legal rights, the plaintiff/appellant was burdened with onus under Art. 117 of the Qanun-e-Shahadat , 1984, to prove on the basis of unimpeachable evidence that such right legally existed in her favour---Plaintiff/appellant failed to make out a case for grant of the discretionary equitable relief of specific performance---Appeal was without merit and was, therefore, accordingly dismissed.

Barrister Faisal Iqbal and Barrister Salman Khan for Appellant.

Amir Latif Gill, Rizwan Ahmed, Muhammad Anwar Dar, Syed Javed Akbar Shah and Abdul Razzaq, Director (EM-I), CDA for Respondents.

2024 Y L R 929

[Islamabad]

Before Aamer Farooq, CJ

PAKISTAN TELECOMMUNICATION AUTHORITY through Chairman---Petitioner

Versus

PAKISTAN INFORMATION COMMISSION and another---Respondents

Writ Petition No. 3720 of 2022, decided on 5th January, 2024.

Right of Access to Information Act (XXXIV of 2017)---

----Ss. 7 & 11---Constitution of Pakistan, Arts. 9, 10, 10A, 12, 13, 14, 15, 16, 17, 18, 19, 20, 23, 25, 26 & 199---Constitutional petition---Access to information---Scope---Words "citizen" and "person"---Distinction---Petitioner/ Pakistan Telecommunication Authority was aggrieved of order passed by Pakistan Information Commission directing petitioner to hand over minutes of meeting in question---Validity---For various fundamental rights, the word "citizen" has been used viz. rights provided under Arts. 15 to 20, 23, 25 and 26 of the Constitution, whereas in some other fundamental rights, the word used was "person" (Arts. 9 to 10A, 12, 13 & 24 of the Constitution)---Use of different terminologies cannot be an oversight and where two separate terms are used, it means that two different meaning are to be attributed---Certain rights are available to the citizens and other to the persons---Concept of person is wider than that of citizen---Any corporation or company incorporated under laws or even a statutory body is a legal person but might not be a citizen as defined in Pakistan Citizenship Act, 1951---Respondent company sought minutes of the meeting with respect to license awarded to a third party---Protection under S. 7 of Right of Access to Information Act, 2017, was afforded to minutes of meeting of any public body subject to a final decision in the matter---Petitioner/Authority could hand over final decision of the public body to respondent company as the decision was not protected unlike protection afforded to defence contracts and similar matters---High Court modified the order passed by Pakistan Information Commission---Constitutional petition was dismissed accordingly.

Federation of Pakistan v. Muhammad Sadiq PLD 2007 SC 133; Messrs Al-Raham Travels and Tours (Pvt.) Ltd. v. Ministry of Religious Affairs, Hajj; Zakat and Ushr 2011 SCMR 1621; State Trading Corporation of India Limited v. The Commercial Tax Officer, Vishakapatnam AIR 1963 SC 1811; Tata Engineering and Locomotive Co. v. State of Bihar and others AIR 1965 SC 40; Jaipur Udhyog Limited v. Union of India AIR 1969 Raj. 281; Pakcom Limited and others v. Federation of Pakistan PLD 2011 SC 44; D.G Khan Cement Company and others v. Federation of Pakistan PLD 2013 Lah. 693; Messrs Riaz Bottlers (Pvt.) Ltd. v. LESCO 2010 PTD 1295; Pakistan Petroleum Limited v. Director General Mines and Minerals and Manpower Building PLD 2011 Quetta 1; Messrs Murree Brewery Company Limited v. Director General, Excise and Taxation 1991 MLD 267; Rustam Cavasjee Cooper v. Union of India 1970) 1 SCC 248; Chiranjilal Chaudhari v. Union of India [1951] 21 Comp. Cas. 33; D.G. & G.M. v. Union of India AIR 1983 SC 937; First National Bank of Boston v. Francis X Bellotti, Attorney General of Massachusetts 435 U.S. 765; Citizens United v. Federal Election Commission 558 U.S. 310; Dr. Naresh Agarwal v. Union of India and others (2005) (4) AWC 3745; Bennet Coleman Co. v. Union of India AIR 1973 SC 106; Mirza Shaukat Baig v. Shahid Jamil PLD 2005 SC 530; Combined Investment (Pvt.) Ltd. v. Wali Bhai PLD 2016 SC 730; Haroon ur Rasheed v. LDA 2016 SCMR 931 and Waqar Zafar Bakhtawari v. Haji Mazhar Hussain Shah PLD 2018 SC 81 rel.

Muhammad Afzal Khan along with Syeda Itrat Batool, Law Officer, PTA for Petitioner.

Ms. Zainab Janjua, Azmat Bashir Tarar, Assistant Attorney General and Sardar Shabbir Hussain for Respondents.

2024 Y L R 978

[Islamabad]

Before Arbab Muhammad Tahir, J

SHAMS UR REHMAN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 508-B of 2022, decided on 29th April, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque--- Bail, refusal of--- Record showed that earlier bail petition filed by the accused was dismissed by the High Court on merits with direction to the trial Court to conclude the trial within one month but the needful could not be done which necessitated present petition---Directions to conclude the trial within a specific time frame were administrative in nature, and non-compliance of the same for whatever reasons, might not be a ground to seek bail as of right---Another important aspect of the matter was that ordinarily bail was to be allowed to an accused person on the ground of delay in conclusion of trial where the period of custody was shocking, unconscionable or inordinate and not otherwise---After examining the case of the petitioner and the law laid down on the subject, in the attending circumstances of the case, the ground of delay in conclusion of trial pursuant to the directions by the High Court, was not by itself a valid ground---Basis of delay to ask for post arrest bail, through this second petition, was not "shocking" and, therefore, could not be made basis as a "fresh ground" to ask for post-arrest bail at this stage---Consequently, bail petition was dismissed.

2021 SCMR 822; 2011 SCMR 870; Nisar Ahmed v. The State and others PLD 2016 SC 11 and 2018 MLD 1975 ref.

Nisar Ahmed v. The State and others PLD 2016 SC 11; Talat Ishaq v. National Accountability Bureau PLD 2019 SC 112 and Rehmatullah and another v. The State 2011 SCMR 1332 rel.

Muhammad Shahzad Siddiq for Petitioner.

Hammad Saeed for Respondent.

2024 Y L R 1037

[Islamabad]

Before Sardar Ejaz Ishaq Khan, J

FAISAL HAYAT---Petitioner

Versus

ADDITIONAL SESSIONS JUDGE/EX-OFFICIO JUSTICE OF PEACE, ISLAMABAD (WEST) and 3 others---Respondents

Writ Petition No. 3797 of 2022, decided on 17th January, 2024.

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

----S.154---Police Rules, 1934, R. 24.5---Expression 'registration of an FIR'---Preliminary inquiry---Object, purpose and scope---Provision of S. 154, Cr.P.C., only requires that substance of information of commission of cognizable offence is to be recorded in a book provided for such purpose---Expression 'registration of an FIR' has acquired loose meaning in our jurisprudence whereby, as it were, the tail wags the dog, and it is expected that the only book for the purpose is the FIR register in Form No. 24.5(1) stipulated under R. 24.5 of Police Rules, 1934---Such conceptual misunderstanding has led to an abuse of expression 'FIR' to the extent that it has become a tool for people to settle their scores and it reduces police to a mere rubber stamp at preliminary stage for being expected to 'register the FIR' and proceed to arrest straightaway---Police is bound to record, immediately on receipt, the substance of information of commission of cognizable offence in police station daily diary---There is no restriction on police carrying out preliminary inquiries thereafter before recording information (along with such additional information that police may have gathered on preliminary inquiries) in FIR Register under R. 24.5 of Police Rules, 1934 for the purposes of carrying out formal investigation---Proceeding to exercise powers of arrest if required and recording in FIR Register under R. 24.5 of Police Rules, 1934 include reasons for police officer's 'suspicion' and need for arrest of accused---Inquiries carried out by police leading to refusing to 'register FIR' in FIR Register is not illegal.

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

----Ss. 22A & 22B---Constitution of Pakistan, Art. 199---Constitutional petition---Ex-officio Justice of Peace---Jurisdiction---Petitioner/complainant was aggrieved of order passed by Ex-officio Justice of Peace declining to direct police to register FIR on the basis of his complaint---Validity---Role of Ex-officio Justice of Peace is not to manage or deal with applications mechanically but the same must be done with due application of mind and demands due discretion and judgment---Ex-officio Justice of Peace before issuing a direction on a complaint for non-registration of a criminal case under S. 22-A, Cr.P.C., must be satisfied that sufficient material is available on record and applicant has approached higher police officers before invoking jurisdiction of Ex-officio Justice of Peace---Petitioner/complainant and respondent/proposed accused were locked in protracted business dispute and petitioner's / complainant's complaint before police was to convert business dispute into a criminal one---Petitioner/complainant was not rendered remediless but had his remedy under S. 200, Cr.P.C., to lodge private complaint instead--- Constitutional jurisdiction under Art. 199 of the Constitution necessitated that violation of any law be shown for directions to be issued thereunder---High Court declined to interfere in order passed by Ex-officio Justice of Peace as petitioner/ complainant failed to show violation of any law---Constitutional petition was dismissed, in circumstances.

Madawa v. Inspector General Police PLD 2013 Lah. 442; Mst. Sahib Khatoon v. SHO, Police Station Garhi Khairo 2013 PCr.LJ 749; Muhammad Bashir v. Station House Officer, Okara Cantonment PLD 2007 SC 539; Muhammad Ali v. Additional I. G., Faisalabad PLD 2014 SC 753; Younas Abbas v. Additional Sessions Judge Chakwal PLD 2016 SC 581 and Abdul Rehman Malik v. Synthia D. Ritchie, American National 2020 SCMR 2037 rel.

Usman Ali Ch. for Petitioner.

Ch. Muhammad Mohsin State Counsel along with Riaz Hussain, DSP Legal and Wajid Hussain, ASI for Respondents.

2024 Y L R 1250

[Islamabad]

Before Tariq Mehmood Jahangiri, J

MUHAMMAD ANWAR DAR---Petitioner

Versus

FEDERATION OF PAKISTAN through Secretary Ministry of Law

and Justice Affairs, Islamabad and 6 others---Respondents

Writ Petition No. 2368 of 2023, decided on 16th January, 2024.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Maintainability--- Parking facility, absence of---Petitioner was a practicing lawyer who was aggrieved of non-availability of car parking facility near Islamabad High Court---Petitioner had failed to point out any violation of law, rule or regulation, therefore, Constitutional petition was not maintainable---Constitutional petition was dismissed, in circumstances.

Syed Iqbal Hussain Shah Gillani v. Pakistan Bar Council through Secretary, Supreme Court Bar Building, Islamabad and others 2021 SCMR 425; Mohammad Waqas Malik, Advocate v. Islamabad Bar Council through Secretary and 2 others 2017 CLC 1173; Owais Shams Durrani and others v. Vice-Chancellor, Bacha Khan University, Charsadda and another 2020 SCMR 1041 and N.W.F.P Public Service Commission and others v. Muhammad Arif and others 2011 SCMR 848 rel.

2024 Y L R 1422

[Islamabad]

Before Babar Sattar, J

AWAIS ASLAM ALI through representative---Petitioner

Versus

CAPITAL DEVELOPMENT AUTHORITY and another---Respondents

Writ Petition No. 4132 of 2021, decided on 15th November, 2023.

Capital Development Authority Ordinance (XXIII of 1960---

----Ss. 36(3) & 49-C---Islamabad Residential Sectors Zoning (Building Control) Regulations, 2005 [since repealed], Cl. 2.17.3------Non-conforming use of property---Penalty, imposition of---Commissioner Capital Development Authority (CDA), powers of---Review jurisdiction---Scope---Commissioner CDA, relying on requisitioned report of an Officer CDA, set-aside penalty imposed upon the owner by the Deputy Commissioner CDA vide ex-parte order---Petitioner/owner invoked constitutional petition of the High Court as the (successor)Commissioner re-instated penalty allowing review, filed after four years, by the CDA---Validity---Earlier the Commissioner CDA, in appeal proceedings filed by the petitioner/owner, directed that an inspection of the house-premises be conducted by an Officer (HVC), who found that the premises-in-question had been rented out in residential use and no office was set up in the premises-in-question; on basis of said report, the Commissioner had set-aside penalty/fine imposing order---CDA filed a review pursuant to S. 36(3) of the Capital Development Authority Ordinance, 1960, whereas the proviso to said section reflected that the scope of the review (under said provision/proviso) was quite similar to the scope of review before the Courts---In the present case, it was apparent from the impugned review order that it had not been passed to correct any error floating on the surface of the record---Commissioner, while passing the impugned (review) order, sat in appeal over the decision rendered by his predecessor almost four years ago, and took into account additional factual aspects (screen shot of webpage asserted by the CDA as non-residential address of petitioner)---Said aspect was neither the basis of CDA seeking review nor could have been a valid ground for passing an order in review jurisdiction---If at all, fact(s) suggested that the petitioner/ owner was liable for non-conforming use of his property, fresh proceedings could have been initiated for such non-conforming use---What the CDA sought to do was not to seek the correction of an error floating on the surface of the record, but was to seek the order of the Commissioner to be set-aside through a fresh appreciation of facts---By engaging in such exercise the Commissioner acted beyond his review jurisdiction and sought to decide the matter afresh essentially in exercise of appellate jurisdiction--- Therefore, impugned order having been passed without jurisdiction, was not sustainable in the eye of law--- Constitutional petition, filed by the owner, was allowed under circumstances.

Mehmood Hussain Lark v. Muslim Commercial Bank Ltd. 2010 SCMR 1036; Haji Muhammad Boota v. Member (Revenue) BOR 2010 SCMR 1049 and Arif Shah v. Abdul Hakeem Qureshi PLD 1991 SC 905 ref.

Mudassar Rizwan for Petitioner.

2024 Y L R 1457

[Islamabad]

Before Miangul Hassan Aurangzeb, J

DAEWOO PAKISTAN MOTORWAY SERVICE LIMITED through

Authorized Representative---Petitioner

Versus

GOVERNMENT OF PAKISTAN through Secretary, Communications, Ministry of Communications, Islamabad and 4 others---Respondents

Writ Petition No. 1642 of 2015, decided on 26th October, 2023.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Alternate and efficacious remedy---Contractual liability---Arbitration clause---Petitioner company assailed execution of work assigned to respondent company on the basis of contract existing between petitioner company and respondent authorities--- Validity--- When an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke Constitutional jurisdiction of High Court for issuance of a writ---Where there exists an arbitration agreement, parties are required to get their disputes arising out of the contract adjudicated by domestic forum created by them---Existence of arbitration clauses in contract between petitioner company and respondent authorities left no option to High Court but to point the parties in the direction of arbitration---Constitutional petition was dismissed in circumstances.

Mumtaz Ahmad v. Zila Council, Sahiwal 1999 SCMR 117; Abdul Qayyum Khan v. District Officer, Passenger and Freight 2003 MLD 670; Messrs Frontier Construction Company v. Bahauddin Zakariya University 2006 MLD 978; Muhammad Hayat Khan v. Tehsil Municipal Administration 2009 YLR 2259; Signage Security System v. CDA and others 2010 CLC 567; Mst. Zahida Maqbool v. Member (Colonies) Board of Revenue 2010 YLR 1734; Messrs Muhammad Siddiq Chaudhry v. Higher Education Commission 2011 CLC 863; Wajahat Ali v. Government of Khyber Pakhtunkhwa 2013 YLR 2132; N.A.A. Consulting Engineers v. Metropolitan Corporation 2014 MLD 1795; Gandapur Construction Company v. Government of Khyber Pakhtunkhwa 2014 CLD 400; Uch Power (Pvt.) Ltd. v. Government of Pakistan, Federal Board of Revenue 2017 PTD 1215; Messrs Bisra Stone Lime Company Limited v. Orissa State Electricity Board AIR 1976 SC 127 and Echo West International (Pvt.) Ltd. v. Government of Punjab PLD 2009 SC 406 rel.

Faisal Zaffar for Petitioner.

Arshid Mehmood Kiani, Deputy Attorney-General.

Muhammad Sohaib Sheikh and Sahibzada Uzair Hashim for Respondent No.2/NHA.

Ummar Zia-ud-Din for Respondent No.3/FWO.

Raza-ur-Rehman for Respondent No.4/MORE.

Misbah-ul-Mustafa Safir for Respondent No.5.

2024 Y L R 1963

[Islamabad]

Before Babar Sattar, J

Iftikhar Ali Haideri---Petitioner

Versus

The State and others---Respondents

Writ Petition No. 3691 of 2023, decided on 5th April, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 63, 167, 169 & 561-A---Penal Code (XLV of 1860), Ss. 392, 380 & 457---Robbery, theft in dwelling house, lurking house-trespass or house-breaking by night in order to commit offence---Physical remand---Refusal---Scope---Physical remand of the accused was declined and he was discharged by the Magistrate---Validity---Presentation of the accused before the Judicial Magistrate would serve no purpose if the Magistrate is to blindly remand the accused in the custody of police for up to a period of fifteen days (i.e. the maximum period for which physical remand is permissible)---Thus, there is no reason why the fundamental right to liberty of an accused would be denied to him on the basis of bald allegations in a complaint that has taken the form of an FIR unless there is some incriminating material on the basis of which police authorities can satisfy the Judicial Magistrate that the accused is liable for an offence that requires his arrest for purposes of investigation---Section 63 of Cr.P.C gives the Judicial Magistrate the power to pass a special order or discharge the accused where the material collected by police authorities up until such time is not such that implicates the accused or justifies his arrest and/or continued detention---Such order of discharge does not prohibit the police from continuing the investigation and collecting further evidence against the person who has been discharged---In view of the record produced before the Court,including the report of the SP Police stating that the complainant had lodged false FIRs, including present FIR, which formed the subject-matter of the instant case and the finding of the Judicial Magistrate that at the time of alleged occurrence the accused was in another city and not in his city and could therefore not have been involved with the occurrence, High Court was not convinced that the impugned order was unjust, unfair and unreasonable or otherwise qualified as colorable exercise of the administrative authority vested in the Judicial Magistrate under S.63 of Cr.P.C.---Petition being without merit was dismissed.

Iftikhar Ahmed v. The State PLD 2020 Lah. 931; Muzaffar Ahmed v. The State 2021 PCr.LJ 1393 and Bahadur v. The State PLD 1985 SC 62 ref.

Ashiq Hussain v. Sessions Judge, Lodhran PLD 2001 Lahore 271; Hidayatullah v. The State 2006 SCMR 1920; Deputy Director Finance and Administration FATA v. Dr. Lal Marjan 2022 SCMR 566; Nadeem Basit Khan v. Director General, Intelligence Bureau, Islamabad 2021 PLC (C.S) 931; Muhammad Ali v. The State Bank of Pakistan 1973 SCMR 140; The Collector of Customs v. Messrs Abdul Majid Khan 1977 SCMR 371; Tahir Naqsh v. The State PLD 2022 SC 385; Mst. Sughran Bibi v. The State PLD 2018 SC 595 and Muhammad Khan Kurd v. Arbab Muhammad Hashim PLD 2020 Bal. 38 rel.

Muhammad Bilal and Ch. Wajahat Ellahi for Petitioner.

Ahmed Junaid, State Counsel.

Abdul Manan Bhatti for Respondent No. 4.

Rukhsar Mehdi, SP, SIUS, Islamabad.

Athar Khan, ASI, Police Station Industrial Area I-9 Islamabad.

Judgment

Babar Sattar, J.---The petitioner has impugned order dated 03.11.2023 pursuant to which the Judicial Magistrate while considering the request of police authorities to grant remand of the accused (i.e. respondent No. 4) charged under FIR No.1043 dated 16.08.2023 under Sections 392, 380, 457 of Pakistan Penal Code ("P.P.C.") was rejected and the accused was discharged in exercise of authority under Section 63 of the Code of Criminal Procedure, 1898 ("Cr.P.C").

1. The learned counsel for the petitioner submitted that the accused had been charged with theft in a shop owned by the complainant. The accused had been nominated through a supplementary statement and there were witnesses, who had corroborated the account of the complainant, who claimed to have been robbed by the accused on the date of occurrence during which robbery the accused had also revealed that they had committed theft in the shop premises owned by the complainant. In view of such material and eye-witness account, the Magistrate ought not have exercised his administrative authority under Section 63 of Cr.P.C to discharge the accused. But should have allowed the matter to proceed to trial so that the truth of the allegation in the complaint could be proved or disproved by affording the parties an opportunity to adduce evidence. He submitted, while relying on a judgment of the Lahore High Court in Iftikhar Ahmed v. The State (PLD 2020 Lahore 931) that the power under Section 63 of Cr.P.C. could only be exercised after the police authorities had completed an investigation and produced a report for perusal of the Judicial Magistrate under Section 169 of Cr.P.C. read with Section 63 of Cr.P.C.

2. The learned State Counsel adopted the arguments of the learned counsel for the petitioner. He submitted that in exercise of authority under Section 63 of Cr.P.C, the Judicial Magistrate could not exercise his/her power such that it circumscribed the power of police authorities to conduct an investigation. He could only form an opinion after the conclusion of such investigation as to whether the accused were liable to be discharged on the basis of the police report in exercise of authority under Section 169 of Cr.P.C.

3. The learned counsel for respondent No.4 submitted that the accused were not named in the FIR and the FIR was lodged on the basis of mala fide. A relative of the accused had filed an application with the police authorities to seek change of the Investigating Officer together with a request that the incident be inquired into by the Superintendent of Police (SP). Pursuant to such application, the SP inquired into the matter and came to the conclusion that the complainant, Iftikhar Ali Haideri, was an official of Capital Development Authority (CDA) and was abusing his authority against the accused to settle scores in relation to an incident that had transpired in Sialkot, in which a relative of the accused had registered an FIR against the brother of the complainant. While investigating the complaint, the SP took note of FIR No 1043 along with the three other FIRs that had been lodged on the behest of the complainant, Iftikhar Ali Haideri. He submitted that the Judicial Magistrate took into account the fact that the CDR for the mobile phone of the accused reflected that the accused was in Sialkot at the time of the purported incident of theft and could not possibly be in Islamabad. It was due to lack of evidence against the accused together with the report of the SP that the Magistrate discharged the accused.

4. The judgments of the Supreme Court cited by the learned counsel for the petitioner and the learned State Counsel are not germane to the controversy at hand. The crux of the case law cited is that the Judicial Magistrate while exercising his administrative authority for purposes of Section 63 of Cr.P.C cannot exercise it in an arbitrary manner. Further, where such authority is exercised in an arbitrary manner to deprive any party of its right to due process and to unduly interfere with the power of the police to undertake an investigation, it is for the High Court to exercise its extra-ordinary jurisdiction under Article 199 of the Constitution read together with Section 561-A of Cr.P.C to correct the same.

5. The learned counsel for the petitioner has relied on Iftikhar Ahmed wherein it has been held that the power under Section 63 of Cr.P.C can only be exercised by the Magistrate after the police report has been submitted for purposes of Section 169 of Cr.P.C and a recommendation for discharge has been made, or else the remedy of bail will be rendered meaningless. This view has been considered and cast aside by a later decision of the Lahore High Court in Muzaffar Ahmed v. The State (2021 PCr.LJ 1393 Lahore) where the various conflicting judgments have been considered and the law in relation to Section 63 of Cr.P.C has been clarified. The pillar judgment characterizing the nature of jurisdiction that the Magistrate exercises at the time of remand is Bahadur v. The State (PLD 1985 SC 62), wherein it was held that, "though a magistrate in cancelling a registered criminal case is required to act judicially in that he has to act fairly, justly and honestly, a duty common to the exercise of all state powers, there is no lis before him, there is no duty to hear the parties, there is no decision given, no finality or irrevocability attaching to the order. The party is left free to institute a complaint on the same facts, and the same Magistrate does not even after passing such an order render himself functus officio. On the contrary he is quite competent to entertain and deal with such a complaint on material presented to him. These peculiarities establish beyond any doubt that in so concurring with a report submitted under section 173, Cr.P.C. he does not function as a criminal Court. For that reason his order is not amenable to revisional jurisdiction under sections 435 to 439, Cr.P.C."

6. The most detailed judgment enumerating the manner in which the power of the Magistrate, while exercising his authority to allow the remand of an accused is to be exercised, is Ashiq Hussain v. Sessions Judge, Lodhran (PLD 2001 Lahore 271). In the said judgment, after discussing the case law produced up until such point, the Lahore High Court summarized the law in relation to remand as follows:

(i) The concept of discharge is relatable only to custody of an accused person in a criminal case and it has no relevance to anything else during an investigation or a trial.

(ii) The Investigating Officer of a criminal, case may discharge an accused person under section 63 of the Code of Criminal Procedure and release him from custody during the investigation on executing a personal bond regarding his appearance before the Investigating Officer or a Magistrate whenever required to do so during the investigation. Likewise under the same provision of law an accused person may be discharged from custody during the investigation either on bail or under the special order of a Magistrate.

(iii) Upon receipt of the police report under subsection (3) of section 173 of the Code of Criminal Procedure a Magistrate may discharge an accused person of his bond if such an accused person has already been released upon executing a bond.

(iv) There is a difference between discharge of an accused person by an Investigating Officer on a bond or on bail or under the special order of a Magistrate under section 63 of the Code of Criminal Procedure and discharge of such an accused person of his bond by a Magistrate under subsection (3) of section 173 of the Code of Criminal Procedure as in the former case the accused person is released on the condition of executing a bond whereas in the latter case he is released of his bond making his release unconditional and unfettered for the time being.

(v) Discharge of an accused person does not amount to smothering of the investigation qua him, cancellation of the case against him, termination of his prosecution or his acquittal.

(vi) A discharged accused person can always be associated by the police with the investigation of the given criminal case at any subsequent stage during the investigation without obtaining any permission from the Magistrate discharging the said accused person as long as that accused person is not to be taken into custody during such subsequent investigation.

(vii) If after his having been discharged by a Magistrate the police needs to arrest an accused person during any subsequent stage of the investigation then a formal permission from the Magistrate is necessary for the purpose.

(viii) Discharge of an accused person has nothing to do with the prospects of such an accused person ultimately facing a trial or not as his discharge is not from the case but only on or of his bond.

(ix) Whether an accused person had been discharged or not and whether the police had opined about his guilt or not in its report under section 173 of the Code of Criminal Procedure are factors which are irrelevant to the issues whether cognizance of the offence is to be taken or not and whether such an accused person is to be summoned or not to face a trial because such decisions are to be made by the Magistrate taking cognizance of the offence and the trial Court on the basis of the material collected during the investigation and the attending circumstances of the case and not on the basis of any opinion formed by the police on the basis of such material.

(x) Discharge of an accused person by a Magistrate is not possible after taking of cognizance of the case by the trial Court.

(xi) An order regarding discharge or otherwise of an accused person lies within the competence of a Magistrate having jurisdiction to take cognizance of the offence and it has no relevance to the question as to which Court is to ultimately try the offence in question unless a special statute provides otherwise specifically.

(xii) An order regarding discharge of an accused person is an administrative and not a judicial order.

(xiii) An order regarding discharge is essentially a discretionary order which may not ordinarily be interfered with by a higher forum unless strong and compelling reasons exist for such interference.

1. The law laid down by the Supreme Court in Bahadur was reiterated by the Supreme Court in Hidayatullah v. The State (2006 SCMR 1920), wherein it was held that, "it is a settled principle of law that it is the discretion of the Magistrate concerned to pass order under section 63 of the Code of Criminal Procedure to discharge the accused persons. However, the discretion must be exercised by the concerned Magistrate justly, fairly and in case discharge order was passed by Magistrate mechanically without application of his independent mind to the facts of the case, blindfolded acceptance of a recommendation of the police in that regard, perversity of reasoning and adoption of a procedure which offends against the letter and spirit of the law relating to discharge, then High Court has ample jurisdiction to interfere and set aside such an order under section 561-A of Cr.P.C."

2. The law as discussed above was not considered at length by the Lahore High Court in Iftikhar Ahmed, that the petitioner relies on, wherein it was observed that the power under Section 63 of Cr.P.C must be exercised on the basis of the report produced by the police under Section 169 of Cr.P.C. This opinion was then considered by the Lahore High Court in Muzzafar Ahmed and was found not to be in accordance with the law as settled in relation to Section 63 of Cr.P.C. The conflicting judgments on the question of scope of authority under Section 63 of Cr.P.C and whether such authority had to be exercised pursuant to a police report submitted under Section 169 of Cr.P.C were cited and the Lahore High Court after discussing the case law held that, "the power of the Magistrate to discharge an accused must be examined in the constitutional context of liberty, dignity, due process and fair trial. In Maqbool Ahmed v. Station House Officer, Police Station Changa Manga, District Kasur and another (1999 PCr.LJ 1198), this Court held that justice should be done even during investigation. The aforesaid power is in the nature of a check on malicious prosecution. If there is no incriminating material against an accused, he must not be detained." It further held that, "it is important to note that Rule 6, supra, distinguishes between the cases where the Magistrate has the jurisdiction to try the accused or send him for trial and those in which he does not have it. Nevertheless, it perspicuously states that an accused must be discharged without any loss of time if there is no cause for his further detention. There is nothing in Rule 6 which may require that the Magistrate can only exercise his power of discharge on a police report". The Lahore High Court concluded that, "subject to Rule 6 of Volume-III Chapter 11 Part-B of the Rules and Orders of the Lahore High Court, the view that the Magistrate can discharge an accused even suo motu when he is produced before him for remand under section 167, Cr.P.C. must be preferred."

3. This Court agrees with the enunciation of law in Muzaffar Ahmad holding that the requirement of relying on a police report to be filed for purposes of Section 169 of Cr.P.C cannot be read into Section 63 of Cr.P.C. The text of Section 63 of Cr.P.C prescribes no such requirement and interpreting Section 63 of Cr.P.C such would amount to reading in a statutory requirement, that has not been prescribed by the legislature itself. It was held by the Supreme Court in Deputy Director Finance and Administration FATA v. Dr. Lal Marjan (2022 SCMR 566) that, "where the legislature has not provided something in the language of the law, the Court cannot travel beyond its jurisdiction and read something into the law as the same would be ultra vires the powers available to the Court under the Constitution and would constitute an order without jurisdiction." It was held by a Division Bench of this Court in Nadeem Basit Khan v. Director General, Intelligence Bureau, Islamabad (2021 PLC (C.S) 931), that, "the doctrine of casus omissus is well settled and courts cannot supply language that is not provided in a statute". (Also see Dr. Zahid Javed v. Dr. Tahir Riaz Chaudhry (PLD 2016 SC 637) and The Collector of Sales Tax v. Messrs Super Asia Mohammad Din and Sons (2017 PTD 1756)).

4. A principle of statutory interpretation, other than the doctrine of casus omissus, relevant for the present purposes, is that provisions of penal statutes are to be construed strictly and in case multiple interpretations are possible, the construction most beneficial to an accused is to be preferred. It was held by the Supreme Court in Muhammad Ali v. The State Bank of Pakistan (1973 SCMR 140) that, "we are dealing here with a penal statute, the provisions of which must be interpreted strictly, and in case of any ambiguity or doubt arising from the construction, the benefit must go to the accused person". This principle was reiterated in The Collector of Customs v. Messrs Abdul Majid Khan (1977 SCMR 371) and most recently in Tahir Naqsh v. The State (PLD 2022 SC 385) wherein it was re-emphasized that, "the rule of interpretation has been evolved according to which a penal statute should be strictly construed in favour of the accused." (Also see Chairman Board of Intermediate and Secondary Education, Bahawalpur v. Rizwan Rasheed (2005 SCMR 728) and Province of Punjab v. Muhammad Rafiq (PLD 2018 SC 178)).

5. The learned counsel for the petitioner and the learned State Counsel have not been able to bring into the attention of the Court any judgment of this Court or that of the Supreme Court holding that the submission of the police report after completion of the investigation is a pre-requisite for exercise of authority under Section 63 of Cr.P.C. On the contrary, there are number of cases that have been decided by this Court, where the authority under Section 63 of Cr.P.C has been exercised by the Judicial Magistrate at the stage of remand and this Court has considered the legality of such orders of discharge in view of the facts of the cases to determine whether such orders were just, fair and reasonable. In other words, in case where a Judicial Magistrate has exercised the authority under Section 63 of Cr.P.C to discharge an accused when the police authorities seeking further remand of such accused, this Court exercises its judicial review powers to determine whether the order of remand is just, fair and reasonable and has been passed in a manner that seems to uphold the fundamental rights of the accused, including the right to liberty under Article 9 of the Constitution, while not undermining the right of the complainant to fair trial or due process guaranteed by Article 10A of the Constitution.

6. The purpose of Section 63 of Cr.P.C is to grant the Judicial Magistrate power of oversight over police authorities that are seeking to investigate the accused and ensure that the accused is not denied unreasonably his right to liberty guaranteed by Article 9 of the Constitution. In the event that the police authorities can place on record no material, which reflects that some offences made out against the accused needs to be investigated, the Judicial Magistrate cannot simply act as a post office and pass a ministerial order granting physical remand of the accused to police authorities. The purpose of requiring that an accused be presented before a Magistrate under Article 10 of the Constitution is to ensure that the Judicial Officer considers in view of the material brought before him whether there existed legitimate basis to intrude into the right of the accused to liberty guaranteed by Article 9 of the Constitution. Under the scheme for enforcement of fundamental rights as prescribed by the Constitution, it is for the judicature to confirm that the police powers of the State are not being exercised in a manner that deprives a person of his liberty except in accordance with law. It is due to such scheme that the institution of Judiciary is missing from the definition of the State as provided under Article 7 of the Constitution (in Part II of the Constitution that deals with Fundamental Rights and Principles of Policy).

7. The presentation of the accused before the Judicial Magistrate would serve no purpose if the Magistrate were to blindly remand the accused in the custody of police for up to a period of fifteen days (i.e. the maximum period for which physical remand is permissible). There is no reason why the fundamental right to liberty of an accused should be denied to him on the basis of bald allegations in a complaint that takes the form of an FIR unless there is some incriminating material on the basis of which police authorities can satisfy the Judicial Magistrate that the accused is liable for an offence that requires his arrest for purposes of investigation. It is thus that Article 10 of the Constitution requires that where a person has been arrested he/she is to be produced before a Magistrate within a period of 24 hours of such arrest. The requirement of Article 10 is a substantive due process requirement of the Constitution. The purpose is to afford the Judiciary supervision over the exercise of the power of arrest within 24 hours of such arrest so that the Magistrate can satisfy himself/ herself that the manner in which a person has been arrested does not amount to abuse of the police powers of the State. It is for purposes of exercising such oversight powers that Section 63 of Cr.P.C then vests power in the Magistrate to discharge an accused where there is no incriminating material providing a reasonable basis to the police authorities to arrest such person. Article 10A guarantees the right of an accused to a fair trial and due process. Such right includes the right of a suspect or an accused to be presented before the Magistrate and for the police authorities that have exercised their power of arrest to satisfy such Magistrate that there exists reasonable basis backed by relevant material justifying the arrest and detention of the suspect/accused and curtailment of his right to liberty guaranteed by Article 9 of the Constitution.

8. There is no basis to interpret the scheme of the Constitution read together with provisions of the Cr.P.C to conclude that once a person has been arrested and presented before the Magistrate he/she is to remain in custody, either by granting police authorities physical remand or by placing the detainee in judicial custody and ordering him to be held in jail, pending the trial of such person. And that such accused can only be released from detention pending his trial in exercise of authority by the Court to grant bail under Section 497 of Cr.P.C. The exercise of authority to grant bail before arrest or to grant bail after arrest is also meant to uphold the right of an individual to liberty and due process as guaranteed by Articles 9 and 10A of the Constitution. Where an accused is presented before the Magistrate and the Magistrate forms an opinion that there exists no incriminating material against the accused, there is no reason for the Magistrate to look the other way and wait for such accused to move an application for bail in order for such accused to be released from detention.

2024 Y L R 2605

[Islamabad]

Before Arbab Muhammad Tahir, J

Sheikh Muhammad Zulfiqar---Petitioner

Versus

Malik Sheraz Zafar and 6 others---Respondents

Civil Revision No. 221 of 2016, decided on 7th August, 2024.

Specific Relief Act (I of 1877)---

----S. 12---Arbitration Act (X of 1940), S. 34---Civil Procedure Code (V of 1908), S. 115---Suit for specific performance of agreement to sell---Arbitration---Stay of proceedings---Principle---Petitioner / plaintiff filed suit for specific performance of agreement to sell and proceedings in the suit were stayed by Lower Appellate Court in exercise of jurisdiction under S.34 of Arbitration Act, 1940---Validity---Provision of S.34 of Arbitration Act, 1940, has been enacted to make arbitration agreements effective and prevent a party from going to Court contrary to his/its own agreement---Where parties had agreed to refer disputes to arbitration, Court should as far as possible, give an opportunity for resolution of disputes through arbitration rather than by judicial adjudication---Powers vested in Court to grant stay under S.34 of Arbitration Act, 1940, is entirely a matter of discretion of Court---Court must not ignore to see that parties are held to their bargain and promote sanctity of contracts/ agreements---Application under S.34 of Arbitration Act, 1940, merits rejection, when in such application, there are no averments as to the applicant's readiness and willingness to have the disputes resolved through arbitration---Court has jurisdiction to entertain the suit, however, the Court in its discretion may stay the proceedings in the suit and also consider whether the discretion should be exercised in a particular case or not---Provision of S.34 of Arbitration Act, 1940, does not make it obligatory on the Court to necessarily refer the dispute to arbitration and may exercise the discretion to stay the proceedings if it is satisfied that there is no sufficient reason why the matter should not be referred to in accordance with the arbitration agreement---High Court declined to interfere in the matter and maintained the order passed by Lower Appellate Court---Revision was dismissed in circumstances.

2013 CLC 434; 2013 CLC 522; Halsbury's Laws of England [At Pages 255-256 Fourth Edition, Volume-II]; Farid Virani v. Feroz Virai PLD 2013 Sindh 386; Mrs. Rubby Hameedullah and others v. Dr. Arif and others 2010 YLR 3331 and Sqn. Ldr. (R.) Khurram Zaman v. Mrs. Afia Zafar and others 2008 CLD 662 rel.

Mirza Muhammad Nazakat Baig for the Petitioner.

Muhammad Ilyas Sheikh and Barrister Talha Ilyas Sheikh for Respondent No. 1.

Syeda Rida-e-Batool and Ms. Shoeba Akhter for Respondent No. 7/CDA.

Respondents Nos. 2 to 6 proceeded ex-parte (vide orders dated 10th November and 1st December of 2016).

Dates of hearing: 8th March, 11th December of 2023, 29th January, 20th February and 5th August, 2024.

Judgment

Arbab Muhammad Tahir, J.---The captioned Civil Revision Petition is directed by the petitioner, Sheikh Muhammad Zulfiqar (to be referred to as "petitioner/first purchaser"), against judgment dated 02.04.2016, whereby the Court of learned Additional District Judge-V, East-Islamabad, while accepting the appeal filed by respondent No. 1 (Malik Sheraz Zafar) (to be referred to as "respondent No.1/second purchaser") under Section 39 of the Arbitration Act, 1940 (to be referred to as "the Act"), set aside order dated 30.09.2015 passed by learned Civil Court in terms that the application filed by respondent No.1/ second purchaser under Section 34 of the Act would be deemed to have been accepted and the suit for specific performance etc. instituted by the petitioner/first purchaser shall remain stayed until the decision on respondent No.1/second purchaser's applications filed under Sections 14 and 17 of the Act. Through said order dated 30.09.2015, the learned Civil Court had turned down the application filed by respondent No.1/ second purchaser under Section 34 of the Act.

1. The transient facts, which led to the filing of the captioned Civil Revision Petition are that respondent 2, Mst. Saeeda Gillani, respondent No.3, Mst. Bilqees Begum and Mrs. Jamila Begum [predecessor in interest of respondents Nos.4 to 6] ("to be collectively referred to as "the owners") owned land measuring around 129 kanals and 10 marlas situated in Mauza Kartal, Pakhral Chak Amda Dhoke Sharaf, Tehsil and District Islamabad (to be referred to as "suit land"). The said suit land was acquired by respondent No.7/Capital Development Authority (hereinafter referred to as "CDA") in the year 1969 and as per the terms of the CDA's Rehabilitation Policy, the owners were held entitled to an Agro Farm in Islamabad in lieu of the suit land.

2. Mrs. Jamila Begum passed away on 05.05.1999. whereafter on 28.05.1999, an application was moved by respondent No.4/Zafar Iqbal Rahat (to be referred to as "Attorney") on behalf of respondent 2, Mst. Saeeda Jillani, and respondent No.3, Mst. Bilqees Begum ("to be referred to as "allottees") to the CDA for allotment of an Agro Plot. According to CDA Board's decision dated 18.10.1999, the allottees were declared to be entitled for allotment of an Agro Plot. Hence, vide letter No.CDA/E and M-II/PVC-40/80/99/08 dated 06.01.2000 an offer for allotment of Agro Plot No.80 comprising of 2.79 acres situated in Orchard Permanent Nursery Scheme Murree Road, Islamabad (to be referred to as "suit plot") was issued in favour of the allottees against payment of premium at the rate of 200/- per acre per annum. Furthermore, the allottees were called upon to deposit 25% of the total premium by 05.02.2000. It is asserted that the Attorney being the real son of Mrs. Jamila Begum, sworn an affidavit to the effect that late Mrs. Jamila Begum had no objection on the allotment of a plot in favour of the allottees.

3. Mst. Bilqees Begum [respondent No.3] along with late Mrs. Jamila Begum executed registered General Power of Attorney on 15.01.1995, whereas Mst. Saeeda Gillani [respondent No.2] executed such an Attorney on 18.01.1995, (to be collectively referred to as "GPAs"), in favour of Attorney with respect to the entire rights of the suit land acquired by CDA.

FIRST AGREEMENT TO SELL:

1. In exercise of the authority vested in him through above-mentioned registered GPAs, the Attorney sold the rights of suit plot expected to be allotted to the donors of the GPAs to the petitioner/first purchaser vide sale agreement dated 26.05.1999 for a total sale consideration of Rs.16,00,000/-. An amount of Rs.50,000/- was paid by the petitioner/first purchaser to the Attorney through cheque bearing No.10755325 dated 26.05.1999 drawn on Muslim Commercial Bank, Aabpara Branch, Islamabad whereas the remaining sale consideration of Rs.15,50,000/- was agreed to be paid to the latter at the time of the transfer of plot in the name of the former and/or his nominee.

2. Since the allottees were not interested in Agro Plot No.80, they filed Writ Petition No.215 of 2000 before the Honble Lahore High Court, Rawalpindi Bench titled as "Mst. Bilqees Begum v. CDA" praying inter alia for a direction to the CDA to allot any other available, proper and plain plot in exchange of plot No.80. The said writ petition stood dismissed vide order dated 15.02.2005 with observation to approach the Court of plenary jurisdiction. Subsequently, on 20.08.2005, the allottees instituted a suit for declaration, mandatory and permanent injunction praying inter alia for a declaration to the effect that a decree be passed declaring them to be entitled for allotment of an alternative developed plot of equal size and value as the one already allotted viz plot No.80 on Murree Road, Islamabad. Upon withdrawal of the said civil suit as well as on payment of 25% on account of the premium, the CDA issued another allotment letter in respect of Plot No.19 on 21.01.2010 in lieu of the earlier plot. Later on 26.01.2010, the allottees instituted yet another suit on exactly the same grounds on which the earlier suit was instituted coupled with an apprehension qua cancellation of the newly allotted plot i.e. Plot No.19. It ought to be mentioned that both the civil suits were instituted by the allottees through respondent No.1/second purchaser as their "Special Attorney".

SECOND AGREEMENT TO SELL:-

1. As mentioned above, the petitioner/first purchaser having purchased the suit plot through agreement to sell dated 26.05.1999 from Attorney, further sold it to respondent No.l/second purchaser through agreement dated 30.07.2003 for a total sale consideration of Rs.85,00,000/-. As per the terms of the said agreement dated 30.07.2003, respondent No.1/ second purchaser was obligated to pay Rs.23,00,000/- and/or any increase/decrease to the CDA. Furthermore, respondent No.1/second purchaser paid 50% of the balance consideration i.e. 31,00,000/- to the petitioner/first purchaser in the following manner:-

i. Rs.30,00,000/- paid through Pay Order No.0317486 dated 30.07.2003 drawn on Allied Bank Limited, G-8 Markaz Branch, Islamabad.

ii. Rs.1,00,000/- in cash.

1. Whereas the remaining 50% i.e. 31,00,000/- was to be paid to the petitioner/first purchaser within a period of three months from the date of signing/execution of said agreement dated 30.07.2003. According to the terms of the said agreement, the petitioner/first purchaser was bound to get an agreement to the extent of 50% ownership of the suit plot executed between the allottees and respondent No.1/second purchaser. It was also agreed upon that in case of failure, the petitioner/first purchaser was also to return Rs.31,00,000/- to respondent No.1/second purchaser within 15 days.

2. Surprisingly, three days after the execution of agreement dated 30.07.2003 (i.e. the agreement between the petitioner/first purchaser and respondent No.1/ second purchaser), the allottees yet again entered into an agreement to sell dated 02.08.2003, as "First Party" with petitioner/first purchaser and respondent No.1/second purchaser as "Second Party". The allottees sold their rights again with respect to the suit plot/ alternate plot to the Second Party at a profit of Rs.16,00,000/-. On the same day i.e. 02.08.2003, the allottees also executed a Special Power of Attorney in favour of the petitioner/first purchaser and respondent No.1 / Second Purchaser.

3. After the execution of agreement to sell dated 02.08.2003 as well as the Special Power of Attorney [which was subsequently withdrawn on 30.01.2013] by the allottees in favour of petitioner/first purchaser and respondent No.1/second purchaser, the petitioner/first purchaser, on 06.03.2013 instituted a suit for specific performance of agreement dated 02.08.2003 along with mandatory and permanent injunction and possession of the suit plot. During the pendency of proceedings in the said suit, on 04.05.2013, respondent No.1/second purchaser filed an application under Section 34 of the Act with two fold prayers (i) to reject the plaint in the suit by invoking the provisions of Order VII, Rule 11, C.P.C. and (ii) to stay the proceedings in the suit till the decision of arbitration proceedings pending in the Court of Shoaib Bilal Ranjha, Civil Judge, Islamabad-East. Vide order dated 30.09.2015, passed by learned civil court, the said petition was dismissed and so also the prayer to the extent of the rejection of the plaint in the suit.

4. The said order dated 30.09.2015 was assailed in an appeal filed under Section 39(i)(v) of the Act before the Court of the learned Additional District Judge-V, Islamabad-East, which was allowed through impugned judgment dated 02.04.2016 hence, the captioned Civil Revision Petition.

Arguments of Mirza Muhammad Nazakat Baig, learned counsel for the petitioner/First Purchaser:-

1. That no arbitration clause existed in the agreement dated 02.08.2003 between the parties, which necessitated reference of the disputes to arbitration. That this pivotal aspect of the matter escaped notice of the learned appellate Court while allowing respondent no.1/second purchaser's application under Section 34 of the Act. That the essential pre-requisites for stay of proceedings in terms of Section 34 of the Act were not satisfied. That the objections filed by the petitioner/first purchaser were not considered by learned appellate court in their true perspective. That learned trial court had correctly dismissed respondent No.1/second purchaser's application under Section 34 of the Act. That in his application filed under Section 34 of the Act, respondent No.1/second purchaser did not make any assertion as to the existence of an arbitration clause in the agreement between the parties which necessitated the proceedings in the suit to be stayed. That the reasoning recorded by learned appellate court as to the acceptance of application filed by respondent no. 1 /second purchaser under Section 34 of the Act are such that could not be sustained in law. That order dated 30.09.2015 passed by learned trial court's abased on correct appreciation of the evidence available on record. And that the impugned judgment and decree dated 02.04.2016 passed by learned appellate court suffers from jurisdictional infirmity thus not sustainable in law. Hence, the same be set aside, prayed learned counsel for petitioner/first purchaser. In order to supplement his arguments, learned counsel placed reliance on the judgments reported as 2013 CLC 434 and 2013 CLC 522.

Arguments of Mr Muhammad Ilyas Sheikh. learned counsel for the respondent No.1/Second Purchaser:-

1. Mr. Muhammad Ilyas Sheikh. learned counsel representing respondent No.1 /second purchaser, has vehemently controverted the contentions of learned counsel for petitioner/first purchaser by contending that on the basis of Power of Attorney, the petitioner/first purchaser executed sale agreement dated 30.07.2003 with respondent No.1 /second purchaser and thereby sold the suit plot to him. That the petitioner/first purchaser also got managed the execution of sale agreement dated 02.08.2003 between the allottees and respondent No.1 / second purchaser. That respondent No.1/second purchaser was informed that the suit plot was free from all encumbrances. That respondent No.1/second purchaser asked the petitioner/first purchaser to fulfill his contractual obligations under the sale agreement executed between them. That it was mutually decided by the parties to get the issues resolved through arbitration. That it was with consent of petitioner/first purchaser that the matter was referred to a two-member Arbitral Tribunal appointed by each party and thereafter the matter was mutually referred to the Umpire/Referee. That reference of dispute to arbitration was not objected to either by the allottees or by the petitioner/first purchaser. That the Arbitrators appointed by each party and the petitioner/first purchaser had sworn affidavits to the effect that the decision that were to be rendered by the Umpire/ Referee shall be binding upon the parties.

ARGUMENTS HEARD. RECORD PERUSED.

1. That question for determination before this court is whether the application filed by respondent No.1 /second purchaser under Section 34 of the Act was maintainable or not. As mentioned above, on 06.03.2013, the petitioner/first purchaser instituted a suit for specific performance of agreement dated 02.08.2003 along with mandatory and permanent injunction as well as possession of the suit plot. During pendency of the said civil suit, respondent No.1 second purchaser filed an application under Section 34 of the Act praying inter alia for the proceedings in the said suit to be stayed.

2. It is well settled that a court before which the proceedings are pending, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of arbitration such Court, may make an order staying the proceedings. Such powers of Court are discretionary in nature, which are spelled out in Section 34 of Act. It would thus be apposite to reproduce Section 34 of the said Act:-

"34. Power to stay_ legal proceedings where there is an arbitration agreement.

Where any party to an arbitration agreement or person claiming under him commences any lega: proceedings against any other party to the agreement or any person claiming under him in respect of any matter agreed to be referred, any party to such legal proceedings may, at any time before filing a written statement or taking any other steps in proceedings, apply to the judicial authority before which the proceedings are pending to stay the proceedings; and if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the arbitration agreement and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration such authority, may make an order staying the proceedings."

(Emphasis is supplied)

1. From perusal of Section 34 ibid, it is obvious that for invoking Section 34 of the Act, it is mandatory that the following conditions ought to be fulfilled:-

"i) The proceedings must have been commenced by a party to an arbitration agreement against any other party to the agreement

ii) The legal proceedings, which are sought to be stayed must be in respect of a matter agreed to be referred.

iii) The applicant for stay must be a party to the legal proceedings and he must have taken no step in the proceedings after appearance. It is also necessary that he should satisfy the Court not only that he is, but also was, at the commencement of the proceedings, ready and willing to do everything necessary for the proper conduct of the arbitration.

iv) The Court must be satisfied that there is no sufficient reason, why the matter should not be referred to an arbitration in accordance with the agreement.

1. It goes without saying that Section 34 of the Act has been enacted to make the arbitration agreements effective and prevent a party from going to the Court contrary to his/its own agreement. Where the parties have agreed to refer the disputes to arbitration, the Court should as far as possible, give an opportunity for resolution of the disputes through arbitration rather than by judicial adjudication. The powers vested in the court to grant stay under Section 34 of the Act are entirely a matter of discretion of the court. However, the court must not ignore to see that the parties are held to their bargain and promote the sanctity of the contracts/agreements. An application under Section 34 of the Act merits rejection when in such an application, there are no averments as to the applicant being ready and willing to have the disputes resolved through arbitration.

2. The court has jurisdiction to entertain the suit, however, the court in its discretion may stay the proceedings in the suit and also to consider whether the discretion should be exercised in a particular case or not. Section 34 of the Act does not make it obligatory on the court to necessarily refer the dispute to arbitration and may exercise the discretion to stay the proceedings if it is satisfied that there is no sufficient reason why the matter should not be referred to in accordance with the arbitration agreement.

3. An arbitration agreement is a contractual undertaking by which the parties agree to settle their dispute by way of arbitration rather than to proceed in court. Whenever, any dispute or difference arises relating to or arising from the arbitration agreement, any party to such agreement may apply to the court for stay of the proceedings by way of filing an application under Section 34 of the Act.

4. In Halsbury's Laws of England [at Pages 255-256, Fourth Edition, Volume-II], the terms of the 'Arbitration' and `Award" have been explained in the following words:-

"An arbitration is the reference of a dispute or difference between not less than two parties for determination, after hearing both sides in a judicial manner, by a person or persons other than a court of competent jurisdiction. The persons to whom a reference to arbitration is made are called arbitrators. Where provision is made that in the event of disagreement between the arbitrators (usually in such case two in number) the dispute is to be referred to the decision of another, or third. person, such person is called the umpire. The decision of the arbitrator or umpire is called the award. The term "arbitration" is used in several senses. It may refer either to a judicial process or to a non-judicial process. A judicial process is concerned with the ascertainment, declaration and enforcement of rights and liabilities as they exist, in accordance with some recognized system of law. The dispute or difference which the parties to an arbitration agreement agree to refer must consist of a justiciable issue triable civilly.

(Emphasis is supplied)

1. Admittedly, the Court has ample power to exercise its discretion in terms of Section 34 of the Act to stay the legal proceedings provided that there has been a valid arbitration agreement, the proceedings in the court have been commenced, the application is made by a party to the proceedings before filing the written statement and or taking any other step in the pending proceedings and such a party is ready and willing to do all the acts necessary for the proper conduct of the arbitration.

2. The plain reading of Section 34 ibid further demonstrates its object which is meant for minimizing the agony of the parties from facing protracted litigationby referring the matter to the Arbitrator. However the court has to see if there are some reasons as to why the matter should not be referred to the arbitration in accordance with the agreement.

3. In the case of Farid Virani v. Feroz Virani (PLD 2013 Sindh 386), it was inter alia held as follows:

"Section 34 of the Arbitration Act, 1940 relates to stay of proceedings brought before the Court in the subsistence of valid agreement of arbitration. This Section aims at to make arbitration agreement effective and to prevent a party from going to Court contrary to his own agreement. Whether the provisions of this Section are attracted, the court may stay the proceedings requiring the matter to be referred to the Arbitration. In order to stay the legal proceedings it is necessary that the proceedings must have been commenced by a party to arbitration agreement against any other party to the agreement, the legal proceedings which are sought to be stayed must be in respect of a matter agreed to be referred, the applicant for stay must be a party to the legal proceedings, the applicant must have taken no step in the proceedings after appearance, the applicant has to satisfy that he was not only at the time when the proceedings were commenced, but still ready and willing to do everything necessary for the proper conduct of the arbitration and the court must be satisfied that there is no sufficient reason why the matter should not be referred to arbitration."

1. In the case titled Mrs. Rubby Hameedullah and others v. Dr. Arif and others (2010 YLR 3331) it was inter alia held that "if a person who has been a party to an arbitration agreement brings a suit ignoring that agreement, the defendant's remedy, if he wants to rely on that agreement is to proceed under section 34 and to ask for stay of the suit. Section 34 creates an exception to the general law relating to procedure and empowers the Court with jurisdiction to decide the dispute or to refuse to do so in case of existence of an arbitration agreement. If in a contract there is a provision resolution of dispute between the parties by way of arbitration and parties have agreed to such forum, then such forum is to be resorted to and given preference before filing a suit. The implication of section 34 stipulates that when the party to an arbitration agreement, commences any legal proceedings against any other party to the agreement for a dispute agreed to be decided through arbitration, it cannot pursue remedy through legal proceedings and the Court has power to stay the suit for a dispute agreed to be resolved by the parties through arbitration."

(Emphasis is supplied)

1. In the case titled Sqn. Ldr. (R.) Khurram Zaman v. Mrs. Afia Zafar and others (2008 CLD 662), It was held by the Hon'ble Apex Court that "needless to emphasize that where a party to an arbitration agreement starts legal proceedings with respect to the subject matter of such agreement, the other party has a right to get such proceedings stayed so as to enable arbitration to proceed in terms of the agreement."

(Emphasis is supplied)

1. Now adverting to the objection of the learned counsel for the petitioner/first purchaser that in the agreement dated 02.08.2003 there was no arbitration clause, which mandatorily required the controversy to be resolved through arbitration. As mentioned above, on 06.03.2013, the petitioner/first purchaser instituted a suit for specific performance of agreement dated 02.08.2003 along with mandatory and permanent injunction etc. with the following prayer:-

"a). to pass a decree of Specific Performance of the agreement dated 02.08.2003 against the Defendants and transfer the suit plot in the name of Plaintiff extent to 50% share in the record of Defendant No.7. And Mandatory Injunction directing the Defendants to transfer the suit plot extent to 50% share in the name of the Plaintiff.

b) That the Defendants may be restrained permanently from transferring, alienating, mortgaging the suit plot in any manner what soever.

Any other relief which this Honourable Court deems just and proper may also be awarded."

1. It was asserted in the said suit. that the Attorney had agreed to sell the suit plot to the petitioner/first purchaser through sale agreement dated 26.05.1999 and the former received an amount of Rs.50,000/- as earnest money in respect of the suit plot. Furthermore, it was asserted that subsequently, the allottees had agreed to sell the suit plot to the petitioner/first purchaser and respondent No.1/second purchaser through agreement dated 02.08.2003. After the institution of the said civil suit, the learned civil court summoned the defendants in the suit so as to enable them to contest the said suit. In the meanwhile, respondent No.1/second purchaser moved an application under Section 34 of the Act on 04.05.2013 with the following twofold prayers:-

"It is, therefore, respectfully prayed that instant petition may graciously be accepted. The plaint be rejected under Order VII Rule 11, C.P.C. or in alternative proceedings of the instant suit be stayed under Section 34 Arbitration Act till decision of arbitration proceedings pending in the court of Sohaib Bilal Ranjha Civil Judge Islamabad, East."

1. The petitioner/first purchaser contested the said application by inter alia asserting that agreement dated 02.08.2003, the specific performance whereof was sought through the said civil suit, does not contain any arbitration clause, which necessitates reference of the matter to arbitration. Whereas, respondents Nos.2 to 4 (Mst. Saeeda Gillani, Mst. Bilqees Begum and Zafar Iqbal Rahat) filed their conceding written reply to respondent No.1/second purchaser's application under Section 34 of the Act by pleading therein that they do not have an objection if the proceedings in the suit are staved. The efforts to serve the allottees as well as the Attorney remained unsuccessful, hence they were proceeded against ex-parte through orders dated 10.11.2016 and 01.12.2016.

2. The petitioner/first purchaser's case before the learned appellate court was as well as before this court is that the agreement dated 02.08.2003 does not contain any arbitration clause providing for reference of the matter to arbitration. True, from perusal of the said agreement, it reveals that no arbitration clause exists, in the said agreement, but suffice it to observe that the petitioner/first purchaser was seeking the specific performance of the said agreement which had been executed by the allottees in favour of the petitioner/first purchaser and respondent No.1/second purchaser. Additionally, the allottees amplified the scope of the said agreement dated 02.08.2003 by appointing both the petitioner/first purchaser as well as respondent No.1/second purchaser as their "Special Attorneys" through "Mukhtar Nama" dated 02.08.2003. According to the said "Mukhtar Nama", the allottees had specifically authorized both the petitioner/first purchaser as well as respondent No.1/second purchaser to resolve their controversy with respect to the said agreement as and when arise between them through arbitration. In exercise of the said authority, the petitioner/first purchaser and respondent No.1 mutually agreed to refer the matter to arbitration. Since the petitioner/first purchaser and respondent No.1/second purchaser were expressly given the power by the allottees to settle their disputes arising from or related to the agreement dated 02.08.2003 through arbitration, therefore, the obvious mentioning of the arbitration clause in the said agreement is of least significance. Moreover, the allottees in reply to respondent No.1/second purchaser's application under Section 34 had clearly pleaded that they did not have an objection as to the stay of the proceedings in the said suit. As such, as per this court's view, the learned appellate court while allowing the application under Section 34 of the Act has committed no illegality.

3. Moreover, as per the record annexed with the instant appeal, prima facie, it appears that the petitioner/first purchaser and respondent No.1/second purchaser had already agreed to refer the dispute to arbitration and in this regard, Qazi Rafi-ud-Din Babar, Advocate was mutually appointed as the Arbitrator/ Umpire, who entered upon the reference and after fulfilling the codal formalities, rendered his award on 10.06.2010. Since the petitioner/first purchaser had already joined the arbitration proceedings by way of filing an objection petition under Section 30 of the Act on 26.03.2011, he cannot be permitted to take a stance to the effect that no arbitration clause exists in the agreement dated 02.08.2003. Had this been the case of petitioner/first purchaser from its very inception, he would not have stepped into the arbitration proceedings. Hence, the objection as regards the non-existence of the arbitration clause in the agreement 02.08.2003 is spurned.

4. As mentioned above, the petitioner/first purchaser filed the application under Section 34 of the Act on 04.05.2013 and by then, the arbitration award had already been announced on 10.06.2010 with respect to the subject matter of the very same suit plot. Furthermore, during pendency of the applications filed by respondent No.1/second purchaser under Sections 14 and 17 of the Act, the petitioner/first purchaser instituted the said civil suit for specific performance of agreement dated 02.08.2003. It is well settled that once the parties resort to arbitration in order to resolve their disputes, then they should wait for the final outcome of the arbitration proceedings.

2024 Y L R 2685

[Islamabad]

Before Mohsin Akhtar Kayani, J

Dr. Salman Akbar Malik---Petitioner

Versus

Federal Government Employees Housing Authority through Chairman, Islamabad and others---Respondents

W.P. No. 595 of 2020, decided on 20th March, 2023.

(a) Interpretation of statutes---

----Non-obstante clause---Harmonious interpretation---Scope---If one construction leads to a conflict, and on another construction , two Acts can be harmoniously constructed, then the later must be adopted---Act containing non-obstante clause has to be given prevalence---If two Acts contain non-obstante clause, then later prevails.

Syed Mushahid Shah v. Federal Investigation Agency 2017 SCMR 1218 rel.

(b) Interpretation of statutes---

----Existing rights---Scope---Rights which are already given by one statute cannot be taken away by another statute and the statute later in date prevails.

Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore 1992 SCMR 227; Abdul Razzaq Khokhar v. Province of Punjab through Secretary to Government of Punjab and others 1990 SCMR 183 and Sui Southern Gas Company Limited v. Oil and Gas Regulatory Authority PLD 2021 Islamabad 378 rel.

(c) Interpretation of statutes---

----Two statutes for one situation---Applicability---When two special laws deal with a similar situation, then question of jurisdiction has to be seen in the light of its nature, object, scope and remedial portion provided therein, in its ordinary meaning to understand its true legislative intent.

Sui Northern Gas Pipeline Limited, (SNGPL) v. Director (Legal), President Secretariat (Public), Aiwan-E-Sadar Islamabad PLD 2018 Islamabad 51; Federal Government Employees Housing Foundation (FGEHF), Islamabad v. Malik Ghulam Mustafa 2021 SCMR 201 and Federal Bank For Cooperatives, Islamabad v. Commissioner of Income Tax, Companies Zone, Islamabad 2021 PTD 1203 rel.

(d) Interpretation of statutes---

----Fiscal statutes---Rights of taxpayers---Scope---Provisions of fiscal statutes are required to be interpreted literally and equity or presumption are alien thereto---If a provision of a taxing statute has two reasonable explanations, then one which is favourable to taxpayer has to be accepted---Any ambiguity is required to be resolved in favour of taxpayer---Redundancy cannot be attributed to lawmaker---Every word and part of statute has to be given meaning and effect---It is always presumed that legislature has used every word in a context and for a purpose---Statute has to be read as a whole and intention of the legislature has to be discovered by paying attention to what has been said---While interpreting fiscal statutes, Court looks at what is clearly said; there is no room for any intendment; nor is there any equity about a tax; there is no presumption as to tax; nothing has to be read in or implied and one can only look fairly at the language used.

Telenor Pakistan (Pvt.) Ltd. v. Federation of Pakistan through Ministry of Finance 2020 PTD 1097 and Khurshid Soap and Chemical Industries (Pvt.) Ltd. v. Federation of Pakistan through Ministry of Petroleum and Natural Resources PLD 2020 SC 641 rel.

(e) Islamabad Capital Territory Local Government Act (XIV of 2015)---

----Ss. 88, 89, 90, 117 & 118---Capital Development Authority Ordinance (XXIII of 1960), Ss. 11, 12 & 13---Federal Government Employees Housing Authority Act (IV of 2020), Ss. 5, 7 & 26---Constitution of Pakistan, Arts. 140A & 199---Constitutional petition---Amenities, providing of---Responsibility---Property tax, imposing of---Jurisdiction---Petitioner was an allottee of a plot in Federal Government Employees Housing Authority Society (FGEHA) and was aggrieved of absence of municipal services in the Society and imposing of taxes by FGEHA as well as by Islamabad Capital Territory Local Government---Validity---FGEHA could not impose any property tax within the specified sectors on their own as they lacked people representation and political authority on behalf of the residents of the specified area, which had already been extended in terms of the Constitutional mandate under Art.140A of the constitution to Local Government system under the Islamabad Capital Territory Local Government Act, 2015---High Court directed Federal Government to issue notification in exercise of its authority under Federal Government Employees Housing Authority Act, 2020, as well as under Islamabad Capital Territory Local Government Act, 2015, to exclude FGEHA to enforce property tax within specified area and mechanism of property tax in terms of Ss. 88, 89 and 90 of Islamabad Capital Territory Local Government Act, 2015, read with its rules in prescribed manner had to be applied even in specified sectors of FGEHA---Utility services within specified area of FGEHA had to be provided by the Authority at their own end and they could charge necessary expenditures approved by the Executive Board in terms of S.5 of Federal Government Employees Housing Authority Act, 2020, whereby Metropolitan Corporation Islamabad would not claim any amount or charges for utility services within the specified area from the residents---On the principle of quid pro quo if property tax was enforced, applied and recovered under Islamabad Capital Territory Local Government system under the law and within the specified area of FGEHA, the Metropolitan Corporation Islamabad would provide services at the door steps of specified sectors including but not limited to main water supply line, reservoirs, collection of garbage, maintenance of sewerage system etc. externally to those specified sectors of FGEHA through joint arrangement or any other mechanism could be devised accordingly---Collection with respect to recovery of property tax if made by Metropolitan Corporation Islamabad from specified area/sector of FGEHA, the said amount was only meant for the use, development of the specified sectors, and same could not be spent anywhere else in Islamabad Capital Territory and even the property tax so collected would be maintained in separate account---Local Government representative under Islamabad Capital Territory Local Government Act, 2015, from the specified area of FGEHA would represent those residents within the local government assembly for their issues and any resolution to that extent was to be adopted by FGEHA---Federal Government Employees Housing Authority would provide complete infrastructure within the specified sector at their own end and could charge the services provided by them to the inhabitants in the specified areas under the notified rules accordingly---High Court directed FGEHA to provide graveyard, parks and other amenities within the specified sectors at their own end as they had already charged respective amounts from allottees/ residents at the time of their allotments and had undertaken to provide facilities/ amenities according to their layout plan in terms of their agreements, commitments with the CDA (Master Regulator)---Federal Government Employees Housing Authority could not resile or rescind any of the agreed terms of their agreements with CDA as the same had been given protection by Federal Government Employees Housing Authority Act, 2020---High Court further directed FGEHA to notify their rules and regulations in terms of S.26 of Federal Government Employees Housing Authority Act, 2020, in all subjects including but not limited to the powers and functions defined in S.5 of Federal Government Employees Housing Authority Act, 2020, as well as the powers available to the Director General in terms of S.7 of Federal Government Employees Housing Authority Act, 2020---High Court directed Islamabad Capital Territory Local Government to also notify the bylaws in terms of S.118 of Islamabad Capital Territory Local Government Act, 2015, if required by the Government, however, in terms of S.117 of Islamabad Capital Territory Local Government Act, 2015, the Government would notify all rules necessary for carrying out the purpose of Islamabad Capital Territory Local Government Act, 2015, including financial rules to deal with Local Government Fund for its maintenance and development within the Metropolitan Corporation Islamabad (MCI) jurisdiction, if already not notified---Capital Development Authority had no jurisdiction to apply and enforce their authority in specified sector of FGEHA except in terms of Ss.11, 12 and 13 of Capital Development Authority Ordinance, 1960---All building regulations, bye-laws of Capital Development Authority or Metropolitan Corporation Islamabad were applicable in specified sectors of FGEHA in terms of S.3 (5) of Federal Government Employees Housing Authority Act, 2020--- Federal Government Employees Housing Authority was also a local authority in specified area and was responsible for all public services and facilities in terms of S.3 (4) of Federal Government Employees Housing Authority Act, 2020--- Federal Government Employees Housing Authority could issue notice of violation or encroachments to any person within specified sector but could not proceed against delinquent individual for violation by themselves directly rather was dependent upon District Collector or the Magistrate 1st Class for any punishment under the law---Enforcement authority for all violation generally vested with Metropolitan Corporation Islamabad under Islamabad Capital Territory Local Government Act, 2015, who in collaboration could initiate joint action in specified sectors with FGEHA in a coordinated manner---Constitutional petition was allowed accordingly. [p. 27011] E

Metropolitan Corporation, Islamabad v. Chairman, Capital Development Authority, Islamabad PLD 2021 Islamabad 144; Province of Punjab through District Coordination Officer, Okara v. Market Committee, Okara through Chairman/Secretary 2011 SCMR 1856; Karachi Development Authority v. Province of Sindh PLD 1977 Karachi 152; Defence Housing Authority through Secretary v. Deputy Commissioner Income Tax 2010 PTD 2552; Karachi Development Authority v. Province of Sindh Through THB Secretary, Excise and Taxation Department, Karachi and 4 others 1977 PLC 251; Justice Shaukat Aziz Siddiqui v. Federation of Pakistan through Secretary Law and Justice, Islamabad PLD 2018 SC 538; Sami Ullah Baloch v. Abdul Karim Nousherwani PLD 2018 SC 405; Zulfiqar Ahmed Bhutta v. Federation of Pakistan through Secretary Minister of Law, Justice and Parliamentary Affairs PLD 2018 SC 370 and Lahore Development Authority through D-G. and others v. Ms. Imrana Tiwana and others 2015 SCMR 1739 ref.

Anique Salman Malik for the Petitioner.

Ali Nawaz Kharal, Tauqer Aslam and Ms. Saman Shahid Ansari for FGEHA.

Ms. Kashifa Niaz Awan for CDA.

Usman Rasool Ghumman, AAG.

Haseeb Hassan and Malik Abdul Rehman for MCI.

Faiz Umer Sial, D.D (Law), FGEHA.

M. Mohsin Pasha, A.D (Law), FGEHA.

Date of hearing: 21st December, 2022.

Judgment

Mohsin Akhtar Kayani, J.---Through the instant writ petition, the petitioner has prayed for the following relief:-

(i) Declare that MCI is responsible for provision of all municipal functions in the Sector as contained in Schedule III of ICT LG Act and issue a writ of continuing mandamus directing MCI to take immediate steps to discharge all such statutory obligations in the Sector on the same footing as the other developed sectors of Islamabad in Zone I;

(ii) Issue a writ of continuing mandamus directing the Respondents to take immediate steps for the supply and provision of water in the Sector by connecting the water distribution network laid in the Sector to the main trunk water supply lines operated by MCI within a period of 6 months;

(iii) Issue a writ of continuing mandamus directing the Respondents to undertake all necessary actions in relation to the completion of the sewerage disposal network laid in the Sector, if so required, as to connect the sewerage network of the Sector to the main trunk sewerage lines within a period of 6 months;

(iv) Direct the Respondents to ensure prevention of further contamination of the water channel near G-14/1 by, inter alia, ensuring that no untreated sewerage or other environmentally hazardous materials are dumped therein;

(v) Direct MCI to directly provide solid waste disposal and sanitation services to the Sector forthwith on the same footing as to the other sectors of Islamabad.

(vi) Issue a writ of continuing mandamus to CDA and FGEHA directing them to take effective steps to ensure the expeditious completion of all works in the Sector in accordance with the approved scheme and Layout Plan within a period of 1 year; and

(vii) Grant any other relief that this Honorable Court may deem fit in the facts and circumstances of the instant case.

1. Brief facts referred in the instant writ petition are that petitioner is a retired Professor of Quaid-e-Azam University, Islamabad and is resident of Sector G-14/4, Islamabad; that plot was allotted to him by the Federal Government Employees Housing Foundation (FGEHF) through allotment letter dated 26.01.2001; that as per the initial agreement between Federal Government Employees Housing Foundation (FGEHF) and Capital Development Authority (CDA), municipal services in the Sector were not provided by the CDA being Master Regulator for development works in Islamabad, which are as under:-

(i) The failure of the Respondents to connect the internal water supply network laid within the Sector to the CDA/MCI trunk water supply infrastructure;

(ii) The failure of the Respondents to connect the sewerage system laid in the Sector to the CDA/MCI trunk sewerage network;

(iii) The dumping of raw untreated sewerage by Respondent No. 1 into a water channel flowing through the site of the proposed Sector G-14/1, Islamabad;

(iv) The failure of the Respondents to provide adequate municipal services for the collection and disposal of garbage in the Sector;

(v) The failure of the Respondents to develop and maintain parks, playgrounds and educational facilities as per the approved Layout Plan for the Sector; and

(vi) The refusal of the Respondents to allow burial facilities/services to the residents of the Sector in the graveyard development in H-11, Islamabad.

The above mentioned failures reflect that the FGEHA erstwhile FGEHF has no legal Authority to settle these issues nor CDA is capable to resolve the issues and in the meanwhile FGEHA Act, 2020 was enacted after the repeal of FGEHA Ordinance, 2019. However, during this period, Islamabad Capital Territory Local Government Act, 2015 was also enacted by the parliament and all the municipal functions were transmitted to the Local Government in the Islamabad Capital Territory, but till date the issue of utility services has not been resolved in a proper manner, which persuaded the petitioner to file instant writ petition.

1. Learned counsel for the petitioner contends that respondent/MCI has to perform all municipal functions in the Sectors being their statutory obligations under ICT Local Government Act, 2015 including but not limited to the water supply, sewerage treatment plant, sewerage/waste disposal and completion of all roads and network, under construction areas expeditiously.

2. Conversely, learned counsel for the FGEHA contends that after the enactment of the FGEHA Act, 2020 all functions have to be performed by the Executive Board of the FGEHA, including but not limited to impose development charges, transfer fee, service charges, toll, tax or other charges in respect of any land or buildings within any scheme in the specified area, similarly all municipal functions have also been delegated to FGEHA, and Metropolitan Corporation Islamabad has no jurisdiction to interfere into their domain.

3. Learned counsel for the Metropolitan Corporation Islamabad (MCI) contends that after the enactment of ICT Local Government Act, 2015, the role of CDA in terms of CDA Ordinance, 1960 stands excluded qua the municipal functions and services within the Islamabad Capital Territory. However, any property tax in the specified area also falls within the purview of Local Government system through MCI. Moreover, the recent enactment of FGEHA Act, 2020 has been given overriding effect, where the municipal functions have been delegated to the FGEHA, but this does not mean that the Local Government system in terms of Article 140 of the Constitution of Islamic Republic of Pakistan, 1973 stand excluded from the specified sectors. He further contends that the MCI is also empowered to impose tax within the specified area in terms of law.

4. Learned counsel for the CDA contends that their role has been curtailed after the enactment of ICT Local Government Act, 2015 and subsequently under the FGEHA Act, 2020, as such they are only confined to the extent of Sections 11 and 12 of the CDA Ordinance, 1960 for preparation of any scheme and implementation of master phase program within the Islamabad Capital Territory.

5. Learned AAG on behalf of the Federation of Pakistan, Ministry of Interior as well as Ministry of Climate Change contends that certain functions have been transmitted to the MCI after enactment of Islamabad Capital Territory Local Government Act, 2015 as an interim measure, as such the complete Authority has been vested to the Local Government system, whereas specified functions after enactment of FGEHA Act, 2020 is within their domain to the extent of specified sectors. He further contends that FGEHA is responsible agency/Authority to provide all the necessary services to the residents of the area accordingly.

6. Arguments heard and record perused.

7. Perusal of record reveals that petitioner is resident of Sector G-14/4 and is Ex-Professor of Quaid-i-Azam University who claims the provision of utility services within the sector by the MCI under the law. In order to understand the provision, it is necessary to go through the background of the development in the Sector.

Background of Development of the Sector:

1. 300 acres of land of QAU were originally earmarked for the development of a housing scheme under the name of QAU SHS in the year 1995 with the approval of the Prime Minister. Subsequently, with the approval of the Prime Minister dated 28.07.1997, QAU SHS was relocated to the Sector, 754 plots were reserved in the Sector for QAU SHS and plots in excess of the requirements of QAU SHS were allowed to be utilized by the erstwhile FGEHF to accommodate the excess demand in Sector G-13, which was also being developed by FGEHF.

2. The Minutes of the 72nd Meeting of Executive Committee, FGEHF dated 20.08.2003 reveals that FGEHF approved the proposal to have the Sector developed through CDA as deposit work on the same terms and conditions on which the works for Sector G-13 were undertaken and as per Minutes of the 73rd Meeting of Executive Committee, FGEHF dated 11.11.2003, the FGEHF approved the PC-I for the development of the Sector as recommended by its Technical Committee at an overall cost of Rs.703.54 million. Due to certain delays, in 75th Meeting of the Executive Committee, FGEHF dated 30.04.2004, it was unanimously decided that development of Sector G-14/4, Islamabad shall be undertaken by the Foundation through agency other than CDA and according to the Minutes of the aforesaid meeting, the Executive Committee, FGEHF also approved the induction of M/s NESPAK as a Consultant, whereafter the sector has been developed.

3. The primary issues in Sectors are of water supply and sewerage disposal which has not been managed by the CDA and at present water is being supplied on subsidized rates to the residents of Sector G-13 and G-14/4 through water tankers from available resources i.e. Tube well. The residents are also complaining about non-collection of garbage, lack of transportation and non-disposal of solid waste. In this regard numerous complaints have been filed on Pakistan Citizen Portal, but MCI is not ready to take responsibility to cater to the utilities and other municipal functions in the sector.

4. In addition to above, it has been observed that development work has not been completed in accordance with the approved plans/scheme, various necessary amenities/facilities, such as parks and schools etc., which were referred in the Layout Plan for the Sector, exists only on paper. The area reserved for the park in the Layout Plan is presently being used as a graveyard by the local inhabitants.

5. While considering the above background, it is necessary to discuss the legal angle and jurisdiction of the FGEHA viz-a-viz Local Government (MCI).

FGEHA Act, 2020

1. This Act has been approved by the Parliament to establish the Federal Government Employees Housing Authority for the purpose of planning and development of housing schemes for serving and retired Federal Government employees and other specified groups and matters connected therewith and ancillary thereto, whereas, Authority has been established under Section 3 of the Act, which is a body corporate having perpetual succession and common seal with power to purchase, procure through acquisition or otherwise, land as well movable and immovable properties and assets with the object to hold, possess, sell lease, transfer, exchange any property including landed property and to regulate the schemes undertaken by it in the specified area. In terms of Sub Section (4) of Section 3, the Authority shall also be the local authority in the specified area and shall be responsible for all public services and facilities, whereas sub section (n) of Section 2 of FGEHA Act, 2020, explains the specified area means all lands owned, purchased, acquired or procured by or vested or leased to the Foundation under any law before the commencement of this Act and such other land as may be purchased or procured or acquired or vested in or leased to the Authority in Islamabad Capital Territory or other parts of Pakistan, therefore, it has clearly been established from the legislative intent that those specified areas notified earlier fall within the purview of FGEHA Act, 2020 and the Authority is to be known as Local Authority, who is responsible to provide all public services and facilities to the respective residents. The Authority has been driven and controlled by Executive Board in terms of Section 4 of the Act, which supervises and controls the affairs of Authority. The said Authority comprises of 11 members including but not limited to Minister for the Division concerned, Secretary of the Division concerned, Draftsman Law and Justice Division, Additional Secretary of the Division concerned, Managing Director, Pakistan Housing Authority Foundation, Director General, Pakistan Public Works Department, Chief Commissioner, Islamabad Capital Territory, Chairman, Capital Development Authority, Islamabad, Joint Secretary, Expenditure Wing, Ministry of Finance, Chief (Physical Planning and Housing), Planning Commission, Islamabad, Chief Engineer of the Authority, who all are ex-officio members and public servants, whereas no public representation is available in the Executive Board. The powers and functions have been explained in Section 5 of the Act, which includes the review progress, approval of budget and audit reports, grants approval to purchase or procure through acquisition or any other prevailing law, approval to enter into contract, arrangement, joint venture agreement with any person or firm for preparation, planning, development, execution, implementation and maintenance of schemes in the specified area, for carrying out the purposes of this Act, especially, sub clause (e) of sub section (2) of section 5, impose and vary development charges, transfer fee, service charges, toll, tax or other charges in respect of any land or buildings within any scheme in the specified area.

2. The Executive Board can pass any decision relating to its affairs and functions discussed above by simple majority of its total members by casting their votes. Director General of the Authority appointed by the Federal Government is an Officer of BS-20 or BS-21 of regularly constituted occupational Group or services, preferably a civil servant having a degree in engineering or town planning or architecture or project management; who has been notified by the Federal Government as Director General of the Authority on deputation basis to perform its function for a fixed period of three years or till attaining the age of sixty years, whichever is earlier. The powers and functions of the Director General have separately been explained in Section 7 of the Act. The Director General shall exercise all executive powers of the Authority, delegated to him or otherwise, in accordance with the directions, decisions and policies made by the Executive Board. The functions of the Director General shall be the following:-

(a) prepare plans and carry out development, execution, implementation, maintenance, management and regulation of any scheme in the specified area approved by Executive Board;

(b) accord approval for the layout plans, building plans of the schemes in conformity with the local municipal regulations;

(c) accord approval for collection of revenues for maintenance of the schemes and enforcement of regulations made under this Act;

(d) carry out maintenance arrangement, management and provision of all facilities, services and utilities including water, electricity, gas and sewerage for schemes in the specified area;

(e) do all such acts and deeds that may be necessary for the purpose of proper preparation, planning, development, execution, implementation, management and maintenance of residential and commercial property in the schemes in the specified area;

(f) recover development charges, transfer fees, services charges, toll or other charges in respect of any land or buildings within any scheme in the specified area as imposed by the Executive Board.

Islamabad Capital Territory Local Government Act, 2015

1. In terms of this Act, new Local Government has been established to devolve political, administrative and financial responsibility and authority is given to the elected representatives of the local governments, to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level; and, to deal with ancillary matters. By virtue of Section 3 of the Local Government Act, working within the existing framework has been planned and a particular restriction has been imposed upon the Local Government. Section 3(3) of the ICT Local Government Act is hereby reproduced in this regard for ready reference:-

(3) The development, planning and overall maintenance of the Master plan within the specified area of Islamabad Capital Territory will continue to vest with Capital Development Authority and thus the overall Master Plan shall apply and no action by any authority, body or corporation shall be initiated in violation of the Capital Development Authority Ordinance, 1960 and the Zoning regulations duly approved by the Government. All powers to be exercised and rules to be enforced shall be subject to the planning framework already set in the aforementioned laws, rules and regulations.

1. While considering the above provision as a legal jurisdiction of ICT Local Government, it has clearly been envisaged that development, planning and overall maintenance of Master Plan within the specified area shall remain within CDA. This aspect demonstrates that the specified area referred in FGEHA Act, 2020 is different from ICT Local Government Act, 2015.

2. This Court has already observed that the Local Government Taxation in terms of Section 88 of the Local Government Act, 2015 is within the domain of the MCI and same was to be collected in terms of Section 89 of the Act by the MCI in a prescribed manner.

3. The detailed discussion has already been made by this Court in case law reported as PLD 2021 Islamabad 144 (Metropolitan Corporation, Islamabad v. Chairman, Capital Development Authority, Islamabad), whereby the following directions were issued:-

4. The notification dated 17.12.2018 is illegal and void as no taxes proposals were issued nor even any objection were invited in terms of Section 88(4) of the ICT Local Government Act, 2015 neither public hearings were given before the imposition of levy of the property tax in Islamabad.

5. CDA has no jurisdiction or authority to impose the property tax or recover the property tax in any manner as it is the sole prerogative of the MCI under ICT Local Government Act, 2015, hence any tax demand by CDA is illegal.

6. The tax proposal be prepared by MCI and objections be invited from the public through publication of notice in newspapers, whereafter a notification in terms of Section 88 of ICT Local Government Act, 2015 be issued in accordance with law within period of six (06) months positively.

7. All the areas of Islamabad Sectors, Societies, Rural Villages, Model Villages, the properties situated on the land of CDA be included in the notification by imposing the property tax in the Islamabad Capital Territory under the law after considering the concept of rating area, plot area, covered area and the services, which are required to be provided in those area.

8. The MCI after promulgation of the notice of the property tax shall provide the utility services within the Union Councils under the law, which includes the water, gas, electricity, roads, sanitation etc. after preparation of different schemes.

9. The Federal Government shall establish the Local Government Fund for settlement of all the issues including the financial autonomy to the MCI, which have not been dependent upon the Federal Government or the CDA.

10. The property tax which has already been imposed under the previous regime within the urban areas of Islamabad Capital Territory shall be charged from all the residents till the new notification is issued under the law after adopting due procedure and the citizens of Islamabad shall pay the property tax in a manner prescribed under the previous law within the next six (06) months, failing which, the surcharge be imposed accordingly, except those areas which were included in the impugned notification for the first time.

11. The tax/funds collected by CDA under the property tax from any of the allottee within Islamabad Capital Territory, shall stand transferred to Metropolitan Corporation, CDA has no authority to use property tax in any manner, nor they are permitted to disburse the same to any other entity or the Government in any manner.

12. The property tax collected by CDA after promulgation of ICT, Local Government Act, 2015 exclusively falls within the jurisdiction of MCI, therefore, special audit be conducted by the Auditor General of Pakistan for the calculation of the tax received by the CDA till date, the same would be transmitted to MCI, in case the amount has been used by the CDA, the CDA authorities shall be liable to return the amount within period of one year from the passing of this judgment.

13. The Federal Government shall provide necessary funds for the establishment of Union Councils offices within the respective union councils along with its infrastructure, budget and necessary material to exercise all respective municipal functions by the Union Councils within the respective area.

14. The issue relating to jurisdiction pertaining to municipal services in terms of FGEHA Act, 2020 viz-a-viz ICT Local Government Act, 2015, can be resolved by putting in juxtaposition the provisions of ICT Local Government Act, 2015 with FGEHA Act, 2020 in the following manner:-

| | | | --- | --- | | ICT Local Government Act, 2015 | Federal Government Employees Housing Authority Act, 2020 | | Preamble: Whereas it is expedient to establish an elected local government system to devolve political, adminis-trative and financial responsibility and authority to the elected represent-tatives of the local governments; to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level; and, to deal with ancillary matters; | Preamble: Whereas it is expedient to establish the Federal Government Emplo-yees Housing Autho-rity for the purposes of planning and development of hou-sing schemes for serving and retired Federal Government employees and other specified groups and matters connected therewith and ancillary thereto; | | 2(b): Authority means the Capital Development Authority; | 2(a): Authority means the Authority established under section 3; | | 2(x) local government means a Union Council or the Metropolitan Corporation established under this Act; | 2(n) specified area means all lands owned, purchased, acquired or procured by or vested in or leased to the Foundation under any law before the commencement of this Act and such other land as may be purchased or procured or acquired or vested in or leased to the Authority in Islamabad Capital Territory or other parts of Pakistan; and | | 2(aa) Mayor means the mayor of the Metropolitan Cor-poration notified as such under Section 12; | | | 2(ww): tax includes any cess, rate, fee, toll or other charge levied under this Act. | | | S3: Local governments to work within the existing frame work:----(1) The local governments established under this Act shall faithfully observe all laws applicable in Islamabad Capi-tal Territory. (2) In the performance of their functions, the local governments shall not impede or prejudice the exer-cise of the exe-cutive authority of the Government or any office perfor-ming functions of the Provincial Government in the Islamabad Capital Territory. (3) The development, plan-ning and over-all maintenance of the Master plan within the specified area of Islamabad Capital Territory will continue to vest with Capital Development Authority and thus the overall Master Plan shall apply and no action by any authority, body or corporation shall be initiated in violation of the Capital Development Authority Ordinance, 1960 and the Zoning regulations duly approved by the Government. All powers to be exercised and rules to be enforced shall be subject to the planning framework already set in the aforementioned laws, rules and regulations. (4) This legal framework shall without derogation to the existing laws and regulations of the Islamabad Capital Territory and Capital Deve-lopment Authority and segments not covered by the prevalent law shall be covered by the respective local Government, as determined by the Government. Wherever there is a clash between the existing law and provisions of this Act, the existing law shall prevail unless clearly specified or repealed. | S3: Authority: --(1) The Division, concerned with the subject, through Chairman of the Authority shall, by notification in the official Gazette, establish the Federal Government Employees Housing Authority, within thirty days of the commencement of this Act. (2) The Authority shall be a body corporate having perpetual succession and common seal with power to purchase, procure through acquisition or otherwise, land as well movable and immovable proper-ties and assets with the object to hold, possess, sell, lease, transfer, exchange any pro-perty" including Ian-ded property and to regulate the schemes undertaken by it in the specified area. (3) The head office of the Authority shall be at Islama-bad. The Authority may esta-blish regionnal offices in other parts of Pakistan with the approval of Executive Board. (4) The Authority shall also be the local authority in the specified area and shall be responsible for all public services and facilities. (5) while making or arranging, planning, designning and executing a scheme in specified area, adherence to local municipal regulations and master plan of the concerned district shall be ensured. | | S.12: Metropolitan Corporation:-- Corporation.-(1) The Metropolitan Corporation shall consist of the following members elected under Chapter V: (i) Mayor and Deputy Mayor, as joint candidates; (ii) Chairmen of all Union Councils; (iii) women; (iv) peasants/ work-ers; (v) technocrats; (vi) youth members; and (vii) non-Muslims. (2) The number of women should not be less than 33 per cent, peasants/ workers not less than 5 per cent, non-Muslims not less than 5 per cent, youth not less 5 per cent each and technocrat not less than 2 per cent. The numbers shall be computed by the government accordingly through a notification issued from time to time. (3) The Mayor and the Deputy Mayor shall be elected as joint candidates, in the first session of the Metropolitan Corporation, from amongst the members mentioned at serial number (ii) to (vii) of sub-section (1), by majority of the members mentioned at serial number (ii) to (vii) of subsection (1) present and voting. | 4. Executive Board. (I) The general administration, supervision and control of the affairs of the Authority shall vest in the Executive Board, which shall consist of--- (a) Minister for the Division, concerned with affairs of the Authority (Chairman) (b) Secretary of the Division concerned (Member). (c) Draftsman Law and Justice Division (Member). (d) Additional Secretary of the Division, concerned with the affairs of the Authority (Member). (e) Managing Director, Pakistan Housing Authority (Member). (f) Director General, Pakistan Public Works Department (Member). (g) Chief Commissioner, Islamabad Capital Territory (Member). (h) Chairman, Capital Development Authority Islamabad (Member). (i) Joint Secretary Expenditure Ministry of Finance (Member). (j) Chief (Physical Planning and Housing)Planning Commission, Islamabad. (k) Chief Engineer of the Authority. (2) The Director General, Federal Government Employees Authority shall act as a Secretary of the Executive Board. | | 73. Functions of Metropolitan Corporation.---(1) The Metropolitan Corporation shall, subject to the provisions of Capital Development Authority Ordinance 1960 and Islamabad Capital Territory Zoning Regulations, 1992 perform functions mentioned in Third Schedule. (2) The Metropolitan Corporation may entrust any of its functions to a person, an authority, agency or company through a contractual arrangement, on such terms and conditions as may be prescribed. | S5. Powers, functions and meeting of the Executive Board. (l) Subject to the provisions of this Act, (he Executive Board may take such decisions and exercise such powers, as may be necessary for preparation, planning, approval and development of schemes in the specified area or carrying out purposes of this Act. (2) Without prejudice to the generality of forgoing powers and subject to the provisions of this Act, the Executive Board may- (a) review progress and activities of the Authority; (b) consider and approve budget and audit report of the Authority; (c) grant approval to purchase or procure through acquisition under the: [.and Acquisition Act, 1894 (I of 1894) or any other prevailing law for the said purpose, or as per approved policy of the Federal Government for the time being in vogue or regulations made by Executive Board, as applicable at the site of the scheme, or otherwise, any land or property in Islamabad or any part of Pakistan and hold, manage, reclaim and take possession of such land or property, in accordance with law; (d) grant approval to enter into contracts, arrangements, joint venture agreements with any person or firm for preparation, planning; development, execution, implementation and maintenance of schemes in the specified area, for carrying out purposes of this Act; (e) impose and vary development charges, transfer fee, service charges, toll, tax or other charges in respect of any land or buildings within any scheme in the specified area; (f) grant approval to lease, purchase, procure, sell, exchange, mortgage, rent out or otherwise dispose of any property vested in the Authority; (g) grant approval to modify, re-plan or cancel any scheme or a part thereof in the specified area; (h) grant approval to plan and execute mergers and amalgamation with other housing schemes or cooperative housing societies; (i) grant approval to obtain loan for the purpose of generating capital for its schemes or seek contributions from members of the schemes or drives, announced and floated by the Authority; (j) give approval to receive grants from the Federal Govern-ment for the purpose of gener-ating capital for its schemes or seek contributions from members of schemes or drives, announced and floated by the Authority; and (k) accord approval of launching of schemes for the Federal Govern-ment employees and other specified groups to be determined by the Executive Board. (3) The decision of the Executive Board shall be through simple majority of the members present. Simple majority" of its total membership shall constitute quorum of the Executive Board and the Chairman shall have the casting vote. (4) The Chairman shall preside over the meetings and in his absence any senior member chosen by the members present, shall preside the meeting. (5) The Executive Board shall meet as and when required or considered necessary by the Chairman or on the request of Director General of the Authority. | | 130. Removal of difficulty.- (1)The Government may, within two years of the commencement of this Act, by order consistent with this Act, provide for the removal of any difficulty which may arise in giving effect to the provisions of this Act. (2) Any question or doubt as to the interpretation of any provision of this Act or of any order made there-under shall be resolved by a decision of the President and such decision shall be final. | 31. Removal of difficulty.-lf any difficulty arises in giving effect to any of the provisions of this Act, the Federal Government may give such directions, consistent with the provisions of this Act, as it may consider necessary for removal of such difficulty. | | | 32. Relation of this Act with other laws. (l) The provisions of this Act shall have effect not in derogation of the Pakistan Penal Code 1860, Code of Criminal Procedure 1898 (Act V of 1898), Code of Civil Procedure 1908 (Act V of 1908), Qanun-e­Shahadat 1984 (P.O. 10 of I984) and Land Acquisition Act 1894(l of 1894). (2) Subject to sub-section (l), the provisions of this Act shall have effect notwithstanding anything contained in any other law for the time being in force. | | 89. Property tax.-(1) The property tax, under this Act, shall be collected by Metro-politan Corpo-ration. (2) In matters for which no provision or no adequate provision relating to the property tax has been made under this Act, the provisions of the Urban Immovable Property Tax Act (West Pakistan Act V of 1958), as adapted in Islamabad Capital Territory, shall apply. (3) The Tax collected under this section shall be distributed amongst the Metropolitan and Union Councils in such a ratio, the Government may, by notification specify. | | | 90. Collection of taxes.- (1) A tax or fee levied under this Act shall be collected in the prescribed manner. (2) The Govern-ment may prescribe the mode of collection of a tax or a fee levied under this Act. (2) If a person fails to pay any tax or fee or any other money payable to a local government, the local govern-ment and, if so requested by the local government, the Government shall recover the tax, fee or other money as arrears of land revenue. (4) The recovery of tax, fee or other money under sub-section (3) shall not absolve the person from prosecution of any offence under this Act or any other law. | | | 129. Repeal and saving.- (1) The Capital Territory Local Government Ordinance, 1979 (XXXIX of 1979), the Islamabad Capital Territory Local Government Ordinance, 2002 (CXVII of 2002), the Islamabad Capital Territory Local Government Elections Ordi-nance, 2002 (LVII of 2002) and Section 15-A of the Capital Develop-ment Authority Ordinance, 1960 (XXIII of 1960) are here by repealed. (2) Save as otherwise specifi-cally provided in this Act, nothing in this Act shall affect or be deemed to affect anything done, action taken, investigation or proceedings commenced, order, rule, regulation, bye-laws appointment, conveyance, mortgage, deed, document or agreement made, tax or fee levied, resolution passed, direction given, proceedings taken or instrument executed or issued, under or in pursuance of the Capital Territory Local Government Ordinance, 1979 and Section 15-A of the Capital Development Authority Ordinance, 1960 and any such thing, action, investigation, proceedings, order, rule, regulation, bye-laws, appointment, conveyance, mortgage, deed, document, agreement, tax, fee, resolution, direction, proceedings or instrument shall, if in force at the commencement of this Act, continue to be in force, and have effect as if it were respectively done, taken, commenced, made, directed, passed, given, executed or issued under this Act. | |

1. While considering all the municipal functions of FGEHA viz-a-viz ICT Local Government Act, it appears that a detail elaborated mechanism has been provided to the public representative under ICT Local Government Act, 2015 to exercise all the powers relating to municipal functions, though similar powers in very precise manner have also been extended to FGEHA, where Executive Board can perform such functions, however, at present neither the ICT Local Government, nor the FGEHA were able to notify their rules for all these functions. However, FGEHA within specified Sectors of G-13 and G-14 have issued occupancy charges notification in lieu of property tax, whereas previously the CDA was issuing such notices of property tax, which has been assailed before this Court and as a result whereof the judgment reported as PLD 2021 Islamabad 144 (Metropolitan Corporation, Islamabad v. Chairman, Capital Development Authority, Islamabad) was passed in which jurisdiction of CDA has already been ceased to impose any property tax including the collection and its recovery, which exclusively falls within the domain of MCI, however, at this stage the rules are in progress to be notified.

2. Now question arises as to whether when two enactments are special subject with special jurisdiction having been enacted regarding similar areas, then how the same could be defined and considered to be applied? The primary concern has to be seen within the context of constitutional mandate to the extent of ICT Local Government Act, 2015, which provides to establish a Local Government system in accordance with Article 140A of the Constitution of Islamic Republic of Pakistan, 1973 to devolve the political, administrative and financial responsibility for effective delivery of service, which is not the intent provided in the FGEHA Act, 2020 and as such constitutional mandate has to be implemented in letter and spirit, however, at this point of time, FGEHA as well as Local Government system are in field and for the purposes of municipal functions, the FGEHA has also been declared as Local Authority under FGEHA Act, 2020 in the specified area.

3. There is no cavil to the proposition that Local Authority has to be considered within their respective jurisdiction, whereas MCI is a Local Authority in the entire Islamabad Capital Territory excluding the specified area in terms of FGEHA Act, 2020, where local authority means Executive Board of the FGEHA, even otherwise, the local Authority in terms of Section 3(28) of General Clauses Act, 1997 means a municipal committee, district board, body of Port Commissioner or other authority legally entitled to, or entrusted by the Government with, the control or management of a municipal or local fund, this aspect has also been appreciated in 2011 SCMR 1856 (Province of Punjab through District Coordination Officer, Okara v. Market Committee, Okara through Chairman/Secretary), PLD 1977 Karachi 152 (Karachi Development Authority v. Province of Sindh), 2010 PTD 2552 (Defence Housing Authority through Secretary v. Deputy Commissioner Income Tax) and the local Authority in the respective jurisdiction is in control or management of the municipal or local fund, which is necessary factor to be considered for exercise of jurisdiction, as such the local authority in FGEHA has been given complete command and control of the local fund and same is the position with the Local Government system derived from the ICT Local Government Act, 2015, hence there is no cavil that both the local Authorities i.e. MCI and FGEHA Executive Board hold their legal authority in order to control the local fund for their municipal services in the respective areas, and their autonomy has not been compromised nor overlapping to each other, whereas, they have been directed to provide amenities to the inhabitants of the locality including but not limited to health, education services, water and sewerage, town planning and development, roads, markets, transportation and social welfare services, etc. as held in 1977 PLC 251 (Karachi Development Authority v. Province of Sindh Through THB Secretary, Excise and Taxation Department, Karachi and 4 others). On the other hand, ICT Local Government Act, 2015 caters each and every aspect of Local Government system in the entire Islamabad Capital Territory, however, when specified area has been transferred within the domain of FGEHA Act, 2020, the special subject jurisdiction comes on record and so far ICT Local Government has not promulgated its financial rules, despite clear directions of this Court, which creates a difficult situation qua the expenditures and other financial issues, therefore, it is high time to issue direction in this regard to notify all kind of rules under ICT Local Government Act, 2015 to enable the Local Government system fully functional as per the mandate highlighted in the preamble.

4. This Court has also been apprised with the historical background of the creation of specified Sectors G-14/1, G-14/2 and G-14/3 in Islamabad as well as other Sectors, whereby CDA Board in its meeting held on 28.03.2000, approved the NOC in favour of Federal Government Employees Foundation for establishment of the scheme, which has been given due protection, whereas other decisions of the CDA Board for NOC in Sector G-13 and Sub-Sectors of the G-13 was given approval on 16.12.1997, which is also part of the record, therefore, those decisions of the CDA Board have taken a binding effect. The record further reflects that the FGEHF on the direction of Wafaqi Mohtasib (Ombudsman), has started maintaining the sectors and same was reflected in the minutes of the meeting held on 11.03.2015.

5. This Court has also been apprised that the issue relating to commercial area of Sector G-14, where terms have been settled among FGEHF and CDA including but not limited to the allied infrastructure, sewerage treatment plan and other auxiliary services as per the CDA by-laws/guidelines for the sectors were given the responsibility to the FGEHF, even the water supply and infrastructure was entrusted to FGEHF but FGEHF have to share proportionate cost of the future projects.

6. At last most important and crucial decision dated 25.04.2022 under the chairmanship of CDA with the FGEHA Authorities confers the following decision after deliberation:-

i. FGEHA will resolve land possession issues in the areas falling under its jurisdiction and will lay the missing pipeline links. The expenditures will be on proportionate share basis by CDA and FGEHA; as CDA has already incurred sizeable expenditure for laying of main conduction pipeline.

ii. Though CDA is already facing water shortage from the Khanpur Dam source but all efforts shall be made for supplying water to Sector G-13 and G-14, Islamabad from the surplus supplies received from the Khanpur Dam source in excess of CDA's requirements.

iii. The supply to Sector G-13 and G-14, Islamabad will be a metered water supply and shall be billed to FGEHA by CDA, accordingly.

iv. CDA will continue to allow filling of water tankers of FGEHA from CDA filling station in order to meet the emergency requirements.

v. FGEHA will undertake measures regarding Rainwater Harvesting for ground water recharge in the areas under their jurisdiction.

1. All these aspects disclose the confidence building measures for the protection of the residents of the specified areas including the petitioners and as such CDA as well as FGEHA and Islamabad Capital Territory Local Government are cognizant of their responsibilities, even their commitment demonstrate the resolution of basic issues of the local residents of specified sectors.

Effect of Two Special Laws:

1. Now coming to the second feature, where two special laws in a similar category has to be construed within their respective scope and sphere of application, which need to be examined and determined with regard to relationship between the two, however, in other words, which law is more special, has to be evaluated. The overriding effect has been given in FGEHA Act, 2020 and when we place in juxtaposition, Sections 31 and 32 of the FGEHA Act, 2020 viz-a-viz Sections 129 and 130 of the ICT Local Government Act, 2015, but in FGEHA Act, phrase "the provision of this Act shall have effect not in derogation and this Act shall effect notwithstanding anything contained in any other law for the time being enforced" has been observed. Such phrase is wide enough to relate even to a future Act, with overriding effect. It is clear that both these Acts are special acts and legislature has intentionally used this phrase in FGEHA Act, 2020. It is also an act later in time, which must prevail.

2. It is also settled rule of interpretation that if one construction leads to a conflict, whereas on another construction, two Acts can be harmoniously constructed then the later must be adopted. Similarly, the Act, which contained a non obstante clause, shall have to be given prevalence and if both acts contained one non-obstante clause, then later shall prevail as held in 2017 SCMR 1218 (Syed Mushahid Shah v. Federal Investigation Agency). It is also settled law that while determining the true nature and legislative intent of two cross jurisdictional nature of statutes, the statute, which is complete in nature, is to be construed according to its own terms and not with reference to another statute to whittle down the beneficial provision of the former. Similarly, the rights, which were already given by one statute could not be taken away by another statute, but the simple principle of interpretation is that a statute later in date shall prevail as held in 1992 SCMR 227 (Matloob Hassan v. Brooke Bond Pakistan Limited, Lahore), 1990 SCMR 183 (Abdul Razzaq Khokhar v. Province of Punjab through Secretary to Government of Punjab and others), PLD 2021 Islamabad 378 (Sui Southern Gas Company Limited v. Oil And Gas Regulatory Authority).

3. In such eventuality, when two special laws deal with a similar situation, then question of jurisdiction had to be seen in the light of its nature, object, scope and remedial portion provided therein, in ordinary meaning to understand its true legislative intent as held in PLD 2018 Islamabad 51 (Sui Northern Gas Pipeline Limited, (SNGPL) v. Director (Legal), President Secretariat (Public), Aiwan-e-Sadar Islamabad), 2021 SCMR 201 (Federal Government Employees Housing Foundation (FGEHF), Islamabad v. Malik Ghulam Mustafa), where scope of FGEHA Act, 2020 has already been discussed and settled. The principle of harmonious construction of two special statutes of interpretation has to be settled on the basis of principles set out in 2021 PTD 1203 (Federal Bank For Cooperatives, Islamabad v. Commissioner of Income Tax, Companies Zone, Islamabad) in the following manner:-

i. While applying seemingly conflicting provisions of two statutes a court must seek to interpret them in a manner that affords harmonious construction and prevents the emergence of a conflict between their provisions. It is to be assumed that in the event the legislature wished to override an existing law it would do so explicitly and thus the doctrine of implied repeal is not to be readily or mechanically invoked.

ii. Special law prevails over general law. And in a conflict between two special laws the one later in time will ordinarily prevail for being an embodiment of the latest expression of the legislature intent. But, as aforesaid, this principle is not to be mechanically applied as being aware of an earlier special law, the legislature could override the same through explicit language in a subsequent special law if it is so wished.

iii. In the event that there is contradiction between the provisions of two statutes it is to be presumed that the statute within the provision of which the legislature has included a non-obstante clause is to be given overriding effect over provisions of the other statute that it is in conflict with, in order to give effect to expressed legislative intent. (In the event that both statutes contain non-obstante clauses, the special law will prevail over general law, and the law later in time will ordinarily prevail in case of conflict between two special laws). However, a non-obstante clause is also not to be given overriding effect in a mechanical fashion as the underlying object of the interpretive project undertaken by the court is to discover the meaning of words used by the legislature: a non-obstante clause is usually employed to suggest that the provision referred to in the non-obstante clause is to prevail over other provisions of the statute, but repugnancy between non-obstante clause and other clauses is not to be presumed and overriding effect is to be accorded only in case of irreconcilable conflict.

iv. In the event that harmonious construction cannot be accorded to the provisions of two special statues without giving tortured meaning to the words used in the text, the object, purpose and policy of the statutes is to be borne in mind in order to discover the legislative intent regarding which statute is to be given overriding effect and to be treated as the special law with overriding effect over another special law. It is possible that a law is to be treated as a special law vis-a-vis one enactment and general law vis-a-vis another enactment.

Two taxing statute:

1. The comparative analysis referred above of the Islamabad Capital Territory Local Government Act, 2015 viz-a-viz FGEHA Act, 2020 stipulate the taxing regime in the respective provisions and as such in terms of Article 140A of the Constitution of Islamic Republic of Pakistan, 1973, the Local Government system has to be applied by the State within the Pakistan as a constitutional mandate, whereby this law of local government in Islamabad provides a complete mechanism for imposing and enforcing the provisions of the Local Government taxing system in terms of Sections 88, 89 and 90 of the Islamabad Capital Territory Local Government Act, 2015, whereas in case of FGEHA Act, 2020, Executive Board has been extended with the Authority to impose tax in the specified area in terms of clause (e) of Subsection (2) of Section 5 of the Act, in this scenario, the settled principles of interpretation of a fiscal statute are that the provisions are required to be interpreted literally and equity or presumption are alien thereto; if a provision of a taxing statute can have two reasonable explanations, then one which is favourable to the taxpayer has to be accepted; any ambiguity is required to be resolved in favour of the taxpayer. Likewise, redundancy cannot be attributed to the lawmaker. Every word and part of the statute has to be given meaning and effect. It is always presumed that the legislature has used every word in a context and for a purpose. The statute has to be read as a whole and the intention of the legislature has to be discovered by paying attention to what has been said. It is settled law that while interpreting fiscal statutes, the Court looks at what is clearly said; there is no room for any intendment; nor is there any equity about a tax; there is no presumption as to tax; nothing was to be read in or implied and one could only look fairly at the language use as held in 2020 PTD 1097 (Telenor Pakistan (Pvt.) Ltd. v. Federation of Pakistan through Ministry of Finance). Similar view has already been highlighted in case law reported as PLD 2020 SC 641 (Khurshid Soap and Chemical Industries (Pvt.) Ltd. v. Federation of Pakistan through Ministry of Petroleum and Natural Resources). The fiscal legislation required that any law that levied a fee must first unambiguously and clearly spell out the nature of the service to be rendered in return (quid pro quo) and then provide for a reasonable and definite timeline for the delivery of such service.

2. No doubt, FGEHA Act, 2020 envisages the tax giving authority to the Executive Board, but if the specific subject of FGEHA is considered in juxtaposition with the ICT Local Government Act, 2020, it appears that Local Government provides a complete mechanism and taxation regime, the mode and manner of recovery and imposition through public representation, which is the key factor for imposing tax, but the same is not available under FGEHA Act, 2020. The composition of Executive Board provided in section 4 of the FGEHA ACT, 2020, describes full control and authority of supervision vests in the public servants who are controlling different ministries / divisions on behalf of the Federal Government with the particular designations on Ex. Officio basis, whereas , the inhabitants / residents of the specified sectors were not given any representation. In such scenario, any tax imposed by the FGEHA, especially, with reference to property tax, the objections of the public and their concerns could not be addressed like in case of property tax explained in sections 89 and 90 of the Islamabad Capital Territory Local Government Act, 2015, which explains the application of the process defined in Urban Immovable Property Tax Act, 1958, which ensures the notification / assessment of rating of area after inviting objections from general public in a detailed manner for imposition of a particular tax regime with reference to the properties in Islamabad Capital Territory.

Enforcement Mechanism in Two Laws:

1. Beside this major difference in two laws, the recovery mechanism provided in FGEHA Act, 2020, is not provided anywhere nor any powers have been vested to the Executive Board or Director General FGEHA to enforce its orders directly under their own authority neither they have been extended with any authority to decide the objections of the residents qua applicability, assessment of any building with reference to property tax and its rates in judicial concepts, whereas, a simple provision of section 23 was provided in the Act to deals with the violation of building regulations in the specified area where the authority may in the prescribed manner direct such person to remove the structure or part of the structure or pay fine to the Authority which may be fixed in the regulations for each category of violation, but in case of non-compliance, section 27 of the Act, comes into play where the due amount against any person could be recovered through arrears of land revenue, where Authority shall request in writing to the Collector for recovery of the said amount. This aspect clearly establishes that the legislative intent is clear and no authority has been vested to FGEHA Executive Board or Director General to proceed directly under the law against an individual or a defaulter by themselves who if needs such judicial function to be exercised under Land Revenue Act, 1967, could be exercised by the District Collector. This aspect if compared to the ICT Local Government Act, 2015, Chapter XIII, deals with offence and enforcement in which section 105 deals with the offences, punishment and their cognizance specified in fifth and sixth schedule, where person liable shall be punished by way of imprisonment, fine, seizure, forfeiture, confiscation, impounding and such other penalties as are provided in the Act. In fifth schedule Part II, at serial No.10 "Evasion of payment of tax or other impost lawfully levied by a local government" is a specified offence punishable even the continuity and repetition of offence like non-payment of tax or persistent violation may increase the fine for every day for the period the accused persisted the offence from the date of its commission as explained in subsection (2) of section 105 of the Act. Even such offences were declared cognizable, where criminal case could be registered and in other cases a complaint in writing of the Inspector after prior approval of the Chief Officer in accordance with the provision of section 200 of the code may also be entertained and all such offences would be tried in summary manner. Similarly, in section 107 of the Islamabad Capital Territory Local Government Act, 2015, imposition of fine through ticketing has also been provided and the Inspector concerned is extended with authority to issue such ticket. Section 108 deals with the court proceeding for default in deposit of fine. The general powers of Inspectors have been envisaged in section 111 of the ICT Local Government Act, 2015, where any violation of a rule or bye-law falls within the exclusive jurisdiction of Inspector in his area and in addition to imposition of fine or initiating prosecution under this Act; (a) he may suspended any work; (b) seize the goods; (c) seal the premises; (d) demolish or remove the work; (e). issue directions for taking corrective measures within the specified time, and the Inspector has been authorized to initiate proceedings in relation to the offences specified in fifth schedule i.e. issue notices in writing on behalf of the local government or initiate legal proceedings in the court. The Criminal Procedure Code, 1898, is applicable under Islamabad Capital Territory Local Government Act, 2015, which is not available in the FGEHA Act, 2020, and no criminal prospection could be initiated except to deal with the cases of encroachment under section 22 of the FGEHA Act, 2022, where matter should be referred to the Magistrate of first class in terms of Criminal Procedure Code, 1898, on a complaint filed by the officer of the Authority, authorized under the regulations. This detail comparison, left nothing in favor of FGEHA to impose, collect, or levy a property tax in particular in comparison to the Islamabad Capital Territory Local Government Act, 2015, in specified area.

Scope of two laws:

1. While considering the scope of FGEHA Act, 2020, and ICT Local Government Act, 2015, it has been clearly established that FGEHA Act, 2020, was enacted for the purpose of planning and development of a housing scheme for serving and retired government employees and other specified groups in the specified area, and the entire law explains the powers and functions of acquisition, its disputes, assessment, determination, of market value of the land, enquiry and award by the Deputy Commissioner, as well as powers of Deputy Commissioner to deal with the determination of any compensation, even appeal and review has been provided to the extent of acquisition of land and award issue. Whereas, Islamabad Capital Territory Local Government Act, 2015, was enacted to establish an elected local government system to devolve political, administrative and financial responsibility and authority to the elected representatives of the local governments, to promote good governance, effective delivery of services and transparent decision making through institutionalized participation of the people at local level, which is a missing element in FGEHA Act, 2020.

2. While considering the above discussion, if the specified areas of FGEHA sectors are excluded from enforcement of local government system, which is not the mandate of the law, even not permissible under the constitutional framework, the people representation in those specified sectors shall stand negated, resultantly the Executive Board of FGEHA if imposes any tax without consultation and deliberation of the local inhabitants, whose representation has not been appreciated in the FGEHA Act, 2020, the same would amount to violation of rights of the local inhabitant / citizens which have otherwise been protected in section 112, Islamabad Capital Territory Local Government Act, 2015, in which the citizens or residents of the local area have every right to bring any suit or other legal proceedings against any local government, its officers or other functionaries violating their rights provided by any law. The constitutional mandate provided in Article 140-A of the Constitution of Islamic Republic of Pakistan, 1973, requires an application of local government system under the law in the entire Islamabad Capital Territory. At this stage, this Court is under legal obligation to discuss the spirit of constitution based upon the principle evolved for interpreting the Constitution which is a living document and should be considered as an organic law of the State, which recognizes the people representation at all levels. While interpreting any provision of the Constitution or for that matter even the law, it is imperative that the recent provision be contextualized in its proper perspective keeping in view its genesis and more importantly, the purpose sought to be achieved by its enactment as held in PLD 2018 [SC] 538 (Justice Shaukat Aziz Siddiqui v. Federation of Pakistan through Secretary Law and Justice, Islamabad), The Constitution must be interpreted as a whole because it is an organic document that is meant to apply to the changing circumstances of time and space. Each provision of the Constitution or part thereof has a purpose, meaning and integral place that must be understood, acknowledged and applied harmoniously, as held in PLD 2018 [SC] 405 (Sami Ullah Baloch v. Abdul Karim Nousherwani). It is also, known principle of constitutional law that constitutional provision could not be overridden, diluted, or bypassed through sub-constitutional or sub-ordinate legislation, nor sub-ordinate legislation could be run contrary to the constitutional provisions which have to be harmoniously construed and interpreted in order to give the fullest effect to words, meaning, scope, philosophy and underlying spirit of the constitution as held in PLD 2018 [SC] 370 (Zulfiqar Ahmed Bhutta v. Federation of Pakistan through Secretary Minister of Law, Justice and Parliamentary Affairs). Therefore, the spirit of Article-140-A of the Constriction of Islamic Republic of Pakistan, 1973, for establishment of local government system has to be given the highest preference in all manners.

3. In the latest judgment reported as 2015 SCMR 1739 (Lahore Development Authority through D.-G. and others v. Ms. Imrana Tiwana and others, wherein the concept of Executive Authority of the Province, mandate of Article 37 of the Constitution viz-a-viz the mandate of Article 140A of the Constitution was discussed at length, therefore, the Local Government system is to be construed on a higher pedestal within the Authority envisaged to Executive Board of the FGEHA as the people representation is missing element being the deciding factor. There is no concept in the constitutional mandate which could be compromised or superseded by way of sub-legislation within the specified area in shape of FGEHA Act, 2020. No doubt FGEHA Act is later in time, but does not reflect the true meaning and power of autonomous representation manifestly nor it is for a separate territory which excludes the ICT Local Government Act, 2015.

4. This Court is of the view that harmonious interpretation is to be made and law of FGEHA Act, 2020, has not been negated nor ICT Local Government system has been excluded from its jurisdiction and application. In case of any conflict among the provisions of FGEHA Act, 2020 viz-a-viz, ICT Local Government Act, 2015, the solution has been provided under sub section (4) of section 3 of ICT, Local Government Act, 2015, which is as under:

"(4) This legal framework shall without derogation to the existing laws and regulations of the Islamabad Capital Territory and Capital Development Authority and segments not covered by the prevalent law shall be covered by the respective Government, as determined by the Government. Wherever there is a clash between the existing law and provisions of this Act, the existing law shall prevail unless clearly specified or repealed."

1. On the other hand, Section 31 of the FGEHA Act provide the removal of difficulty mechanism, whereby any difficulty arises in giving effect to any of the provisions of this Act, the Federal Government may give such directions, consistent with the provisions of this Act, as it may, consider necessary for removal of such difficulty, hence the constitutional spirit has to be read along with Islamabad Capital Territory Local Government Act, 2015, which places local government system on higher pedestal in comparison with FGEHA Act, 2020.

2. Keeping in view the above discussion, the issues would be resolved in the following manner:-

i. The FGEHA Authority shall not impose any property tax within the specified sectors at their own as they lack people representation and political authority on behalf of the residents of the specified area, which has already been extended in terms of the constitutional mandate under Article 140A of the Constitution to the Local Government system under Islamabad Capital Territory Local Government Act, 2015.

ii. The Federal Government by exercising its authority under FGEHA Act, 2020, as well as under ICT Local Government Act, 2015 by issuing a notification should exclude the Authority of FGEHA to enforce property tax within specified area and the mechanism of property tax in terms of Sections 88, 89 and 90 of the Islamabad Capital Territory Local Government Act, 2015 read with its rules in prescribed manner has to be applied strictly, even in specified sectors of FGEHA.

iii. The utility services within specified area of FGEHA have to be provided by the FGEHA at their own end and they can charge necessary expenditures approved by the Executive Board in terms of Section 5 of the FGEHA Act, 2020, whereby the Metropolitan Corporation Islamabad (MCI) shall not claim any amount or charges for utility services within the specified area from the residents.

iv. On the principle of quid pro quo if property tax has been enforced, applied and recovered under Islamabad Capital Territory Local Government system under the law and within the specified area of FGEHA, MCI have to provide the services at the door steps of the specified sectors including, but not limited to main water supply line, reservoirs, collection of garbage, maintenance of sewerage system etc. externally to those specified sectors of the FGEHA through joint arrangement with FGEHA in a meeting with the Executive Board of FGEHA or any other mechanism could be devised accordingly.

v. The collection/recovery of the property tax if made by MCI from the specified area/sector of FGEHA, the said amount is only meant for the use, development of the specified sectors, and same could not be spent anywhere else in Islamabad Capital Territory, even the property tax so collected by MCI, shall be maintained in separate account.

vi. The local government representative under Islamabad Capital Territory Local Government Act, 2015 from the specified area of the FGEHA has to represent those residents within the local government assembly for their issues and any resolution to that extent is to be adopted by FGEHA in their Executive Board meeting and to be given preference subject to their own limitation under the law and rules envisaged therein.

vii. The FGEHA has to provide complete infrastructure within the specified sector at their own end and may charge the services provided by them to the inhabitants in the specified areas under the notified rules accordingly.

viii. The FGEHA has to provide the graveyard, parks and other amenities within the specified sectors at their own end as they have already charged the respective amounts from the allottees/residents at the time of their allotments and undertook to provide the facilities/ amenities according to their layout plan in terms of their agreements, commitments with the CDA (Master Regulator), hence they cannot resile or rescind any of the agreed terms of their agreements with the CDA, which has been given protection by the FGEHA Act, 2020.

ix. The FGEHA shall notify their rules and regulations in terms of Section 26 of the FGEHA Act, 2020 in all subjects including but not limited to the powers and functions defined in Section 5 of the Act as well as the powers available to the Director General in terms of Section 7 of the Act within period of next Six (06) months positively.

x. The Islamabad Capital Territory Local Government shall also notify the bylaws in terms of Section 118 of the Islamabad Capital Territory Local Government Act, 2015 if required by the Government, however, in terms of Section 117 of the Act, the Government shall notify all the rules necessary for carrying out the purpose of this Act including financial rules to deal with the Local Government fund for its maintenance and development within the Metropolitan Corporation Islamabad (MCI) jurisdiction within period of Six (06) months if already not notified in terms of judgment dated 26.12.2022, passed in W.P No.2196-2018 (Sardar Mehtab Ahmed Khan v. Federation of Pakistan and others).

xi. The compliance report may also be submitted by the Metropolitan Corporation Islamabad (MCI) as well as Chairman, CDA for the actions taken in the light of judgment reported as PLD 2021 144 (Metropolitan Corporation, Islamabad v. Chairman C.D.A. (Capital Development Authority), Islamabad).

xii. CDA has no jurisdiction to apply and enforce their authority in the specified sector of FEGHA except in terms of sections 11, 12 and 13 of CDA Ordinance, 1960, subject to approval of Executive Board of FGEHA.

2024 Y L R 2854

[Islamabad]

Before Arbab Muhammad Tahir, J

Makhdoom Shahab-ud-Din---Applicant

Versus

Judge Family Court, Islamabad (West) and another---Respondents

W.P. No. 950 of 2024, decided on 19th March, 2024.

Family Courts Act (XXXV of 1964)---

----Ss. 5, Sched., 14(3) & 17-A---Constitution of Pakistan, Art.199---Suit for recovery of dower and past and future maintenance allowance---Interim/interlocutory order---Interim maintenance with a stipulation---Contention of petitioner-husband was that interim maintenance should not be granted to respondent-wife and an order under S.17A of the Family Courts Act, 1964, could not be passed because he denied the existence of marriage between them---Validity---Claim set up by the respondent ostensibly reflected existence of marriage bond between the parties---If this aspect was seen in conjunction with the fact that no action had since been initiated by the petitioner against the respondent to counter her claim set up in plaint, it could not be said that impugned order did not cohere with the ground situation---If the respondent failed to substantiate existence of her marriage with the petitioner, she had to return the amount, received as interim maintenance, to the petitioner in lump sum---Being a special law, Act of 1964 bars remedy of appeal or revision against interim order, therefore, when a statute specifically excluded a remedy, petition in terms of Art.199 of the Constitution could not be maintained against the interim order as it would amount to circumventing the intention of the legislature and frustrating the express provision of law---Constitutional petition was dismissed, in circumstances.

1986 MLD 991; 2022 CLC 24; PLD 2012 Balochistan 133 and 2010 YLR 691 ref.

Dr. Aqueel Waris v. Ibrahim Aqueel Waris 2020 CLC 131; Dr. Samina Anayat v. Additional District Judge and others 2018 MLD 448 rel.

Raza-ur-Rehman Asad for the Petitioner.

Order

Arbab Muhammad Tahir, J.---Listed writ petition emanates from interlocutory order dated 11.03.2024 passed by the learned Judge Family Court, Islamabad (West) whereby in suit for recovery of dower, past and future maintenance allowance filed by respondent No.2 namely Anam Iqra, interim maintenance of the lady has been fixed at the rate of Rs.100,000/- (one lac) per month. Operative paragraph-6 of the impugned order reads as under:-

"6. Keeping in view above facts, perusing pleadings of the parties, going through above precedents relied by learned counsel for the parties and hearing their arguments, the matter requires evidence regarding the claim by the plaintiff and the denial by defendant which may be determined on merits after conclusion of trial. As far as the question regarding the interim maintenance for the plaintiff is concerned the documents relied by the plaintiff party reflected the relation of the defendant with the plaintiff, therefore, the monthly interim maintenance at the rate of Rs. 1,00,000/- (in words one lac rupees) is hereby fixed to be paid by the defendant in favour of the plaintiff by every fourteenth of calendar month. (In case of failure by the plaintiff party to prove the existence of marriage with the defendant, after conclusion of trial, the aforesaid amount will returnable in lump sum). While fixing the monthly interim and its quantum, the well-entrenched principles settled in the case law 2020 MLD 1523 are hereby relied firmly."

1. Learned counsel submits that in presence of categorical denial of existence of relationship of the petitioner with respondent No. 2 as husband and wife inter-se, recourse to Section 17-A of the Muslim Family Law Ordinance, 1961 (Ordinance of 1961) for fixation of interim maintenance could not have been made; that to substantiate claim as legally wedded wife, it was incumbent upon the lady to furnish a registered Nikanama, mandatory in terms of Section 5 of the Ordinance of 1961; that under the circumstances proper course is to frame preliminary issue regarding existence of marriage, before fixation of interim maintenance allowance of the lady and then to proceed further; that an acknowledgement, being made basis to assert claim of legally wedded wife in the backdrop of categorical stance of the petitioner warrants probe and determination at the 1st instance, therefore, impugned order is liable to be set aside. Learned counsel has fortified his submissions by placing reliance upon case law reported as 1986 MLD 991, 2022 CLC 24, PLD 2012 Balochistan 133 and 2010 YLR 691.

2. Heard. The parties are in contest over claim of respondent No.2 for the recovery of dower, past and future maintenance allowance. The claim of the lady/respondent No. 2 as being wife of the petitioner is based upon paragraph No. 8 of the plaint in suit filed by her, wherein she maintained that "on 06.09.2013, formal Nikah was performed at the residence of Syed Hassan Raza, address house No. 12, St. No. 13, Sector F-7/3, Islamabad, witnessed by Mr. Naeem Bukhari and Syed Hassan Raza and acknowledgement of Nikah was signed by spouses in presence of witnesses. Photographs of the Nikah ceremony with the defendant are attached with the suit plaint and video of the Nikah ceremony will be produced at the time of evidence. Thereafter, houses were taken on rent in E-11, F-6, F-11 and F-7/4 since 2013. The rents were in variably paid by the defendant, where he always stayed with the plaintiff and her daughters (while they were in Pakistan) and when he was in Islamabad."

3. The petitioner/defendant in written statement responded to above claim of the lady under paragraph 8 in terms that "the defendant denies all claims predicated on the alleged existence of marriage. Such denials are grounded in the absence of valid and registered Nikahnama as required by law. The plaintiff bears the burden of proof in otherwise."

4. The documents available on file includes acknowledgment of Nikah, photographs, affidavit of the lady, application addressed to the Secretary Islamabad club, written by the petitioner requesting the former to include name of the lady as his spouse on club membership besides rent agreement wherein the lady is mentioned as wife of the petitioner. The claim set in by the lady ostensibly reflect existence of marriage bond between the parties and if this aspect is, seen in conjunction with the fact that no action has since been initiated by the petitioner against the lady to counter her claim set in by her in plaint, it cannot be said that impugned order does not cohere with the ground situation. Even otherwise, in case lady failed to substantiate existence of her marriage with the petitioner, she has to return the amount, received as interim maintenance, to the petitioner in lump sum.

5. On legal premises, under Section 17-A of the West Pakistan Family Courts Act, 1964 (Act of 1964), family court is competent to fix interim maintenance and remedy of appeal or revision against the interim order is barred in terms of Section 14 of the West Pakistan Family Courts Act 1964 which stipulates that:-

"No appeal or revision shall lie against an interim order passed by a Family Court."

1. The Act of 1964, being a special law, bars remedy of appeal or revision against interim order, therefore, when a statute specifically excludes a remedy, petition in terms of Article 199 of the Constitution cannot be held to be maintainable against the said order as it would amount to circumvent the intention of the legislature and frustrate the express provision of law.

2024 Y L R 16

[Sindh]

Before Muhammad Shafi Siddiqui, J

GULISTAN TEXTILE MILLS LIMITED---Appellant

Versus

ADDITIONAL DISTRICT AND SESSION JUDGE-VIII and another---Respondents

Constitutional Petition No. S-2068 of 2016, decided on 25th May, 2021.

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

----S. 8(1) & (2)---Rate of rent, determination of---Fair rent of the demised property enhanced by Appellate Court---Validity---Though the Rent Controller while determining fair rent of the premises in question had taken a very conservative view by fixing fair rent at Rs. 10/- per sq. foot, yet the fair rent fixed by the appellate Court was on higher side---Rent Controller and appellate Court were required to provide a cumulative effect of all those factors available under S. 8 of Sindh Rented Premises Ordinance, 1979, subject to availability of evidence though the quantum of inflation and the enhancement of taxation had not been statistically provided in terms of applicability of such claim/charges per sq. foot yet other factors might contribute to the determination of fair rent---Rise in cost of construction had also not been demonstrated statistically---Moreover, it was only presumptive analysis that cost of construction rises with the passage of time, however, the witness was required to provide data of such rising in cost of construction through his affidavit or any expert witness, however it was a difficult assignment but the requirement of law---Said burden could be relieved had appropriate lease deeds of same building or of adjoining building having similar facilities been cited in evidence---Further, it would have been justified for both the landlord and tenant had a deed of lease in respect of same building with same set of facilities was considered, though of the third floor of the building, as it would not have taken away any benefit from any one if yardstick of the said lease deeds was applied to premises in question---Thus, keeping in view quality of evidence available on record the re-determination of fair rent from Rs. 10 to Rs.50 per sq. foot per month by the appellate Court was on higher side and not in consonance with evidence and the fair rent should not have been more than Rs.35/- per sq. foot per month---Appellate Court had also enhanced the rent of the premises by 10% every year after first period of three years was over---Perhaps that was not within the domain and jurisdiction of the Rent Controller exercising jurisdiction under section 8 of Sindh Rented Premises Ordinance, 1979, as the said provision provided only fixation of fair rent on the cumulative effect of four factors i.e. rent of similar premises situated in similar circumstances, in the same or adjoining locality; rise in cost of construction and repair charges; imposition of new taxes, if any, after commencement of the tenancy and the annual value of the premises, if any, on which property tax was levied---Petition was allowed with the modification to the effect that the fair rent of the premises was fixed at Rs. 35/- per sq. foot per month from the date of filing application, in circumstances.

Abdul Karim Khan for Petitioner.

Mian Mushtaq Ahmed for Respondent No.2.

2024 Y L R 50

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

GHULAM MAHDI ABRO---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-40 and Criminal Conf. Case No. D-36 of 2020, decided on 27th September, 2022.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, assault or wrongful restraint, common intention---Appreciation of evidence---First Information Report lodged with promptitude---Accused was charged that he along with his co-accused committed murder of the complainant/deceased---Evidence reflected that occurrence had taken place in brought daylight at Imam Bargah---First Information Report in respect of the alleged offence had been lodged by deceased/complainant within thirty five minutes, wherein present accused was named as sole perpetrator of the alleged murder---Circumstances established that prosecution had proved its case against the accused but due to mitigating circumstances, the death sentence was reduced to imprisonment for life---Appeal was partially allowed, in circumstances.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, assault or wrongful restraint, common intention---Appreciation of evidence---Sole eye-witness---Conviction based on testimony of sole witness---Accused was charged that he along with his co-accused committed murder of the complainant/deceased---Record showed that eye-witness was a natural witness of the occurrence being resident of the mohalla, where incident had taken place and the time of occurrence was such that said witness was likely to be present at the place of incident---Contention of defence was that eye-witness was closely related to deceased, therefore, his testimony could not be believed to sustain the conviction of accused---Mere relationship of the prosecution witness with deceased could not be a ground to discard the testimony of such witness unless previous enmity or ill-will was established on record to falsely implicate the accused in the case---Conviction in a murder case can be based on the testimony of a single eye-witness, if Court is satisfied that he is reliable; it is quality of evidence and not the quantity which matters---Circumstances established that prosecution had proved its case against the accused but due to mitigating circumstances, the death sentence was reduced to imprisonment for life---Appeal was partially allowed, in circumstances.

Ijaz Ahmed v. The State and others 2022 SCMR 1577 rel.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, assault or wrongful restraint, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged that he along with his co-accused committed murder of the complainant/deceased---Record of the case showed that FIR was lodged by the deceased himself promptly and complainant/injured succumbed to the injury subsequently at a hospital---Medical evidence had provided full support to the ocular account furnished by eye-witness, in which he had specifically attributed role to the accused in the commission of the offence---Circumstances established that prosecution had proved its case against the accused but due to mitigating circumstances, the death sentence was reduced to imprisonment for life---Appeal was partially allowed, in circumstances.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, assault or wrongful restraint, common intention---Appreciation of evidence---Sentence, reduction in---Motive not proved---Accused was charged that he along with his co-accused committed murder of the complainant/deceased---Prosecution had tried to establish motive through the evidence of eye-witness---Evidence of said witness spoke of a quarrel over use of narcotic substance/ selling of hemp (Bhang) by the accused in the Imam Bargah, but it had not come on record on which date, time and place deceased had quarreled/objected over use of narcotic substance by the accused and in whose presence---Moreover, generally it was observed that use of narcotic substance in Imam Bargah premises was rare--Question for consideration arose as to why accused selected lower part of the body of the deceased for firing and as to why fire was not repeated---In the FIR, it was mentioned that co-accused (since acquitted) had firstly abused the deceased complainant and was armed with firearm---Question was why fire was not opened by him, and prosecution failed to explain the same---Thus, it clearly showed that motive was shrouded in mystery---Circumstances established that prosecution had proved its case against the accused but due to mitigating circumstances, the death sentence was reduced to imprisonment for life---Appeal was partially allowed, in circumstances.

(e) 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 sentence of death passed against a convict on the charge of murder.

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

----Ss. 302(b), 504 & 34---Qatl-i-amd, assault or wrongful restraint, common intention---Appreciation of evidence---Sentence, reduction in---Real cause of occurrence unknown---Accused was charged that he along with his co-accused committed murder of the complainant/deceased---Prosecution had failed to answer as to why accused selected lowed part of the deceased for firing---Thus, real cause of occurrence was something different, which had been completely suppressed by both parties to the case and real cause of occurrence had remained shrouded in mystery---Apart from that co-accused, who was armed with gun at the time of incident and had abused the deceased, had already been acquitted by the Trial Court and , thus, some doubts about the veracity of the prosecution's case had emerged which doubts might not be sufficient to acquit the accused but the same might well be considered towards exercising caution in the matter of the sentence of death of accused, which was reduced to imprisonment for life---Appeal was partially allowed, in circumstances.

Ahmad Nawaz and another v. The State 2011 SCMR 593; Iftikhar Mehmood and another v. Qaisar Iftikhar and others 2011 SCMR 1165; Muhammad Mumtaz and another v. The State and another 2012 SCMR 267; Muhammad Imran alias Asif v. The State 2013 SCMR 782; Sabir Hussain alias Sabri v. The State 2013 SCMR 1554; Zeeshan Afzal alias Shani and another v. The State and another 2013 SCMR 1602; Naveed alias Needu and others v. The State and others 2014 SCMR 1464; Muhammad Nadeem Waqas and another v. The State 2014 SCMR 1658; Muhammad Asif v. Muhammad Akhtar and others 2016 SCMR 2035; Qaddan and others v. The State 2017 SCMR 148; Mst. Nazia Anwar v. The State and others 2018 SCMR 911 and Aijaz Ahmed v. The State and others 2022 SCMR 1577 and Abdul Nabi v. The State 2017 SCMR 335 rel.

Sarfraz Khan Jatoi for Appellant.

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

2024 Y L R 70

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

ABDUL REHMAN SHAIKH and others---Appellants

Versus

The STATE---Respondent

Special Criminal A.T.As. Nos. 282, 283, 288, 291, 294 to 298 and 304 of 2019, decided on 25th March, 2022.

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

----Ss. 223, 224, 225, 225-A, 216, 114 & 34---Anti-Terrorism Act (XXVII of 1997), 7---Negligence of officials causing under trial prisoners to escape---Appreciation of evidence---Conviction, alteration of---Accused were charged for negligence in performing their duties by not preventing and in essence enabling two hardened under trial prisoners to escape from central prison---Record showed that the hardened prisoners seemed to have the keys to their wards---Under trial prisoners were produced before the Anti Terrorism Court in the prison without production orders by other under trial prisoners---Counting of prisoners who were returned from the Anti Terrorism Court back to the barracks was done negligently---CCTV camera's on the day of the incident were not working even in respect of the most sensitive areas of the prison---Under trial prisoners/escapees managed to have passed through the outer gate of the prison (being the only entry and exit point to the prison) when the management and security of the prison was the sole responsibility of the Superintendant who appeared to have done very little on ground to ensure the security of the prison after assuming charge and blindly signed logs concerning the presence of prisoners who were missing by violating the rules---All the five accused persons were found guilty of violation of so many prison rules on account of their negligence by a high powered inquiry which report had been duly exhibited---Circumstances established that the prosecution had proved its case beyond a reasonable doubt that all five Senior Officer/accused persons through their own negligence enabled the under trial prisoners to escape and had committed the offences under Ss. 223 & 223-A, P.P.C. and as such their convictions and sentences were maintained and their appeals were dismissed---However, said accused persons did not have the design, intent or purpose to create terror and as such all offences under the Anti-Terrorism Act, 1997, were set aside.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61; Province of Punjab through Secretary Punjab Public Prosecution Department and another v. Muhammad Rafique and others PLD 2018 SC 178; Muhammad Nawaz v. The State PLD 2002 SC 287; Muhammad Yaqoob, Sub-Inspector v. The State PLD 2001 SC 378; Muhammad Amin Muhammad Bashir Limited v. Government of Pakistan through Secretary Ministry of Finance, Central Secretariat, Islamabad and others 2015 SCMR 630; Muhammad Rashid alias Master and another v. The State SBLR 2016 Sindh 1347; Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274; Muhammad Mansha v. The State 2018 SCMR 772; Abdul Khaiiq v. The State 2006 SCMR 1886; Irfan and another v. Muhammad Yousaf and another 2016 SCMR 1190; Bashir Ahmed and another v. The State PLD 2020 Sindh 202; Hashim Qasim and another v. The State 2017 SCMR 986; The State v. Muhammad Shafique alias Pappo and another PLD 2004 SC 39; Muhammad Nawaz and others v. The State and others 2016 SCMR 267; Qaddan and others v. The State 2017 SCMR 148; Abdul Razzaq Butt v. Kalsoom Bibi 1999 MLD 30; PLD 2019 SC 749; Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445; HC Muhammad Khan and 3 others v. The State PLD 2017 Sindh 723; Allahi Bux and 7 others v. The State 2007 MLD 39; Mazhar Hussain and others v. The State 1986 PCr.LJ 2842; Ahsan Ali v. Emperor AIR 1919 Lahore 229; Durga Prasad v. Emperor dated 19th July, 1910; Muhammad Shah v. The State 2010 SCMR 1009; Ali Ahmad v. The State PLD 2020 SC 201; MD Nazir Hossain Sarkar v. The State 1969 SCMR 388; Wazir Muhammad v. The State 2005 SCMR 277 and Abdur Rehman alias Boota v. The State 2011 SCMR 34 ref.

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

----Ss. 223, 224, 225, 225-A, 216, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Negligence of officials causing under trial prisoners to escape---Appreciation of evidence---Conviction, alteration of---Act of terrorism, applicability of---Accused were charged for negligence in performing their duties by not preventing and in essence enabling two hardened under trial prisoners to escape from central prison---With regard to the convictions and sentences of the accused persons for offences under the Anti-Terrorism Act, 1997, the present case did not fall within the purview of the Anti-Terrorism Act, 1997, because in case of an act of terrorism there had to be an object, intent, purpose and design to create terror on account of the act of accused persons---Whether people were terrorized as a by-product of the act did not convert the act into one of terrorism nor the fact that it might have been of a particularly brutal nature---Based on the particular facts and circumstances of the present case it appeared that the accused persons were only negligent and did not have the design, intent or purpose to create terror and as such all offences under the Anti-Terrorism Act, 1997 were set aside.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

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

----Ss. 223, 224, 225, 225-A, 216, 114 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Negligence of officials causing under trial prisoners to escape---Appreciation of evidence---Benefit of doubt---Accused were charged for negligence in performing their duties by not preventing and in essence enabling two hardened under trial prisoners to escape from central prison---With regard to the two clerks/accused, they had no direct responsibilities or obligations in respect of the under trial prisoners serving at the jail---Said accused were not Court Officials and were clerical officers sitting in the main office building of the jail performing clerical duties---Said duties were not set out in the list of officers and official duties---Responsibilities of the said accused appeared to be typing and movement of papers--- With regard to three constables/accused persons, the under trial prisoners entrusted in their custody on the day of the incident attended court and were duly returned to the jail after the court hearings---There was evidence showing that said accused persons had anything to do with the escaped under trial prisoners or that they had any specific responsibility for the escaped under trial prisoners on the day of the incident or even came across them on the day of the incident---Internal inquiry report also found all three of the said accused not guilty of negligence---With regard to accused/constable posted to ward 26, under trial prisoners were not lodged in ward 26, and as such said accused had nothing to do with them being let out of ward 26 or allowing them to enter the Anti-Terrorism Court complex nor their counting on their return at the time of lock up---Internal inquiry report also found the said accused not guilty of negligence and as such all the said four accused persons were extended the benefit of doubt and were acquitted of the charge.

Aamir Mansoob Qureshi and Iftikhar Ahmed Shah for Appellant (in Spl. Criminal A.T.A. No. 282 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 282 of 2019).

Muhammad Farooq for Appellant (in Spl. Criminal A.T.A. No. 283 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State

(in Spl. Criminal A.T.A. No. 283 of 2019).

Shahab Osto for Appellant (in Spl. Criminal A.T.A. No. 288 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for Appellant (in Spl. Criminal A.T.A. No. 288 of 2019).

Zulfiqar Ali Langah for Appellant for Appellant (in Spl. Criminal A.T.A. No. 291 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 291 of 2019).

Mehmood Anwar Hussain Baloch for Appellant (in Spl. Criminal A.T.A. No. 294 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 294 of 2019).

Mehmood Anwar Hussain Baloch for Appellant (in Spl. Criminal A.T.A. No. 295 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 295 of 2019).

Shoukat Hayat for Appellant (in Spl. Criminal A.T.A. No. 296 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 296 of 2019).

Shoukat Hayat for Appellant (in Spl. Criminal A.T.A. No. 297 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 297 of 2019).

Nehal Khan Lashari for Appellant (in Spl. Criminal A.T.A. No. 298 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 298 of 2019).

Nehal Khan Lashari for Appellant (in Spl. Criminal A.T.A. No. 304 of 2019).

Saleem Akhtar Buriro, Additional Prosecutor General for the State (in Spl. Criminal A.T.A. No. 304 of 2019).

2024 Y L R 126

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

TOUQEER ALI KALWAR and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-42, Confirmation Case No. D-06 and Criminal Acquittal Appeal No. D-21 of 2021, decided on 26th October, 2022.

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

----Ss. 302(b), 201 & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen offenders, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---Ocular account---Accused were charged for committing murder of the son of the complainant---Ocular account of the incident had been furnished by father and brother of the deceased---Both the said witnesses had made certain material admissions which had put severe dents in the prosecution case to the extent of acquitted accused persons which gone in favour of said accused persons---Both the witnesses had admitted that the crime was not witnessed by any of the prosecution witnesses---Complainant and other witnesses in their respective statements had clearly deposed that FIR was lodged against some unknown culprits and later on, on the basis of previous enmity and suspicion, they had nominated three accused in their further statements, which were recorded on 09.01.2019 and then again when their S. 164, Cr.P.C. statements were recorded, the complainant and witnesses had nominated one more accused along with earlier named three accused because as per complainant party, deceased prior to the incident had divorced his wife, who was daughter of one accused and sister of other accused---From said admission, it was apparent that even the threat issued by the acquitted persons were prior to pronouncement of divorce and not after the divorce, and that too, as admitted by the witnesses themselves, only once, although the degree of annoyance after the pronouncement of divorce would have been higher than that of prior to pronouncement of divorce, but admittedly the complainant party did not issue any threat to accused after pronouncement of divorce---Said fact was also to be taken with great significance that brother of deceased had also clearly admitted that complainant party had come to know about issuing threats by the accused to them through other people--- Meaning thereby complainant party was not issued any sort of threat directly and the fact that accused had issued threats to them was also hearsay---Circumstances established that the prosecution had failed to prove its case against three accused persons and the Trial Court had rightly acquitted the accused persons, thus, the acquittal order did not call for any interference---Appeal against acquittal was accordingly dismissed.

Ghulam Rasool Shah and another v. The State 2011 SCMR 735; Allah Dino and 2 others v. The State 2018 PCr.LJ 200; Abdul Ghafoor v. The State 2011 SCMR 23; Rajib Ali Naich and others v. The State 2019 MLD 306; 2013 MLD 244; 2020 PCr.LJ 1286; Bashir Ahmed and others v. The State and another

2022 SCMR 1187; AIR (29) 1942 Patna 90; AIR 1936 Lahore 887; Abdul Ghafoor v. The State 2011 SCMR 23; Hakim Khan and another v. The State and another 1975 SCMR 01 and 2018 PCr.LJ 200 ref.

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

----Ss. 302(b), 201 & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, causing disappearance of evidence of offence, giving false information to screen defenders, common intention---Appreciation of evidence---Appeal against acquittal---Benefit of doubt---No weapon recovered from the possession of the accused---Accused were charged for committing murder of the son of the complainant---Record showed that neither the accused persons had ever been formally arrested by the police nor any crime weapon had been recovered from them, nor the prosecution had produced during the course of trial any other proof against them so as to connect them with the commission of alleged offence---Rather perusal of entire evidence revealed that they were implicated only on the basis of presumption and suspicion of the complainant party---In that view of the matter, it could safely be held that prosecution had failed to prove that indeed all three accused had hatched any conspiracy with the main accused---Thus, it seemed that only on the basis of their previous enmity and suspicion they had implicated three acquitted accused---Apart from that, no incriminating article relating to murder of the deceased had been recovered from the acquitted accused---Circumstances established that the prosecution had failed to prove its case against the three accused persons and the Trial Court had rightly acquitted the said accused persons, thus, the acquittal order did not call for any interference---Appeal against acquittal was accordingly dismissed.

(c) Criminal trial---

----Benefit of doubt---Scope---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1l34; Shamoon alias Shamma v. The State 1995 SCMR 1377; Muhammad Mansha v. The State 2018 SCMR 722; Ahmed Omar Sheikh and others's case 2021 SCMR 873; Sher Muhammad Khaskheli v. 2nd Assistant Sessions Judge and 6 others 2021 YLR 1759; Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329; State/ Government of Sindh through Advocate General, Sindh, Karachi v. Sobharo 1993 SCMR 585; Muhammad Yaqoob v. Manzoor Hussain and 3 others 2008 SCMR 1549 and State and others v. Abdul Khaliq and others PLD 2011 SC 554 rel.

Achar Khan Gabole for Appellant (in Criminal Appeal No. D-42 of 2021).

Shabbir Ali Bozdar for the Complainant (in Criminal Appeal No.D-42 of 2021) and for Appellant (in Criminal Acquittal Appeal No. D-21 of 2021).

Rukhsar Ahmed Junejo for Respondents Nos. 2 to 4 (in Criminal Acquittal Appeal No. D-21 of 2021).

Aftab Ahmed Shar, A.P.G. for the State.

2024 Y L R 165

[Sindh (Sukkur Bench)]

Before Amjad Ali Sahito and Zulfiqar Ali Sangi, JJ

ALI HASSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-45 and Criminal Rev. Application No. D-57 of 2024, decided on 2nd June, 2022.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Due to religious dispute occurrence took place---Narration of occurrence given by witnesses was repellent to common sense---Record showed that it was a night occurrence and witnesses were sitting in the double cabin vehicle---Though it had been mentioned that witnesses identified the culprits in the lights of the said vehicle yet it was hardly believable that they could see the assailants when they had been firing desperately---All the witnesses were equally under direct and immediate threat of death but still, they were able to give a photographic narration of the occurrence by attributing fire shots at the deceased and injured at the hands of ten accused persons at a distance of 40/50 paces---Moreover, it was observed that the only source of light available with the witnesses by which they saw the accused firing at the deceased was the headlights of the double cabin vehicle but the said double cabin vehicle was not produced before the court---After scanning the record it transpired that the police had also not taken into possession the vehicle in which the alleged eye-witnesses were travelling and they witnessed the occurrence in the light of the vehicle---Mashirnama of inspection of the vehicle was also scanned but nothing was mentioned in it about the availability of searchlights or the headlights of the vehicle which was the source of identification---In the circumstances of the case at hand, the identification of the accused in the headlights of the vehicle was a weak type of evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Imran v. The State 2020 YLR 1139; Ijaz v. The State and another 2020 YLR 1620; Abdul Razzaq and another v. The State 2013 YLR 788; Muhammad Ashraf v. The State 2012 SCMR 419; Irfan Saeed and others v. The State and others 2012 PCr.LJ 63 and Muhammad Latif v. the State PLD 2008 SC 503 ref.

Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344 and Khalil v. The State 2017 SCMR 960 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Chance witnesses---Presence of complainant at the time and place of occurrence not proved---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Record showed that the presence of the complainant was not established nor his evidence in that respect was believable---Complainant stated that he was sitting on front seat of the vehicle, but surprisingly neither he nor his two guards had sustained any firearm injury---Complainant had disclosed that both the injured and deceased were sitting on the rear seat of the vehicle---Thus, it could not be believed by a prudent mind that the bullets were passing from complainant and were hitting the deceased and injured and he was noting the same---However, the complainant admitted in his cross-examination by stating that he was sitting on the front seat and at the time of firing he put his head down for some time and thereafter changed his sitting position to see the incident---Accused were continuously making fire shots and it continued for about 5/6 minutes, however complainant did not receive any type of injury---Such evidence of the complainant was not believable as it was not possible that the bullet after crossing him without hitting him went and hitting a person sitting behind him---Further the complainant did not remember the names of those people who invited them on the night of the incident---All the said facts established that the complainant was not present at the time of the incident and he had disclosed the facts in the FIR on the narration of someone else, and thereafter also improved the case at the time of recording his evidence before the Trial Court---In such circumstances, the evidence of the complainant was not reliable nor trustworthy or confidence-inspiring---Appeal against conviction was accordingly allowed.

PLD 2019 SC 527 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused implicated through supplementary statement---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Prosecution alleged during recording evidence that accused fired from rifle upon deceased which hit him on his right knee---Present incident took place at 3.00 a.m. in the night hours and the FIR was registered on the same day at 05.00 a.m.---Complainant while recording his FIR had not assigned any role against the present accused nor during the investigation, he made a complaint against the Police Officials that his FIR was not registered according to his verbatim--- However, during the investigation a further statement of the complainant was recorded wherein he changed his version given in the FIR and nominated another set of accused persons including the present accused mentioned in the FIR as accused---Even in the further statement recorded after about 16 days of the incident and the FIR, no role had been assigned against the present accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Ocular account not supported by medical evidence---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Accused was arrested on 08.09.2009 and a further statement of the complainant was recorded on 24.09.2009 after about 16 days of the arrest of the accused even then no role was assigned against the accused by the complainant---Evidence of the complainant and the eye-witnesses was recorded on 02.05.2012, 09.05.2012 and 18.10.2012 after about three years wherein they changed/improved the case by leveling direct role against the accused that he fired from his rifle which hit deceased on his knee---Perusal of the medical evidence made it clear that there was no firearm injury on the knee of deceased for which the accused was allegedly involved after about three years of the incident, however, the injuries on the right thigh had been attributed by the complainant and the witnesses against the co-accused which reflected that the complainant and the witnesses improved their case by taking benefit of two injuries on the right thigh of the deceased and to bring it with the conformity with the medical evidence but they did not think about that what they had already stated---Such improvement made the case of prosecution doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

(e) Criminal trial---

----Witness--- Injured witness---Scope---Injured witness will not be relied upon ipso facto because of injuries, but it is to be examined whether his evidence is trustworthy and confidence inspiring.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Related and interested witnesses---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Assessment of evidence reflected that all the witnesses were related to each other either in blood relation or due to their organization therefore their evidence was assessed carefully---Although, witnesses received the injuries during the incident but they had not deposed actual truth in respect of the incident and made dishonest improvements before the Trial Court---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Said Ahmed v. Zammured Hussain 1981 SCMR 795 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of accused---Doubtful---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Accused was arrested on 08.09.2009 and at the time of arrest nothing was recovered from his possession---However, after about 16 days of his arrest on 24.09.2009, during interrogation accused agreed to hand over the weapon and the police party took him to the place where the weapon was concealed and the accused took it out and handed it over to the police---Prosecution in order to prove recovery of crime weapons examined the complainant of the arms case who in his cross-examination stated that he prepared the memo at the place of recovery, checked the crime weapons there and also sealed the same at the place of recovery---Mashir of recovery stated in his cross-examination that the memo was prepared by complainant at the place where his car was stopped---Complainant also admitted that there was a distance between the place of recovery and the place where the car was parked, however, he was unable to disclose such distance---Complainant also stated that he sealed the weapons but the mashir stated that complainant was writing the memos and the weapons were sealed by the constables---All the said contradictions in the evidence of witnesses made the recovery of the weapon doubtful---Appeal against conviction was accordingly allowed.

(h) Criminal trial---

----Corroborative evidence--- Scope---When substantive evidence fails to connect the accused person with the commission of the offence or is disbelieved, corroborative evidence is of no help to the prosecution as the corroborative evidence cannot by itself prove the prosecution case.

Saifullah v. The State 1985 SCMR 410 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay in sending the weapon or crime empties for analysis---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Police secured the empties from the place of the incident on 17.08.2009 and the rifle was allegedly recovered on 24.09.2009 but both were sent to the office of Forensic Division on 06.11.2009---Empties were sent to the office with a delay of about more than 60 days---Crime weapons and empties were sent on 06.11.2009 with a delay of about 40 days---Although the report of the Forensic Science Laboratory revealed that the firearm recovered from the accused matched with the crime-empties secured from the place of the incident yet the Investigation Officer had admitted that the crime empties had been sent to the Forensic Science Laboratory when the crime weapon was recovered---In his cross-examination, Investigation Officer admitted that from 17.08.2009 upto 31.08.2009 the empties were under his possession---Same property was sent to the forensic office through letter of SSP investigation---From 24.09.2009 upto 06.11.2009 the recovered crime weapons were under his possession---Said witness could not give explanation for such delay---Such recovery was legally insupportable and had no value in the eyes of law---Appeal against conviction was accordingly allowed.

Nazeer Ahmed v. The State 2016 SCMR 1628 and Muhammad Javed v. The State 2016 SCMR 2021 rel.

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

----Ss. 302(b), 324, 109, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged that they made firing upon the complainant party, due to which two persons died whereas two persons sustained firearm injuries---Motive as set up by the complaint/ prosecution witnesses was that the incident took place on sectarian rivalry and the deceased and the witnesses belonged to Sipah-e-Sahaba Organization whereas as per the version of the complainant party the accused persons belonged to Tehreek-e-Jaffria and the incident took place on the instigation of leaders of the Tehreek-e-Jaffria---None of the witnesses has produced any proof in respect of the religious dispute before the Trial Court---Even if the Court believed that there was a dispute on religious affairs then the same was not against the present accused and was against others accused persons, some of whom had already been acquitted by the Trial Court on an application under S. 265-K, Cr.P.C.---Not a single word had been deposed by the prosecution witnesses against the accused in respect of the motive against him and it was only alleged that on the instigation of those accused persons who had a religious rivalry with the complainant party accused committed the offence---Therefore, the prosecution had failed to prove the direct motive against the accused hence, the real cause of occurrence remained shrouded in mystery---Appeal against conviction was accordingly allowed.

Mst. Nazia Anwar v. The State 2018 SCMR 911 rel.

(k) Criminal trial---

----Benefit of doubt---Conviction---Conjectures and probabilities---Scope---Mere conjectures and probabilities can not take the place of proof---If a case is 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 has been a dominant feature of the administration of criminal justice with the consistent approval of the Constitutional Courts, will be reduced to a naught.

Muhammad Luqman v. The State PLD 1970 SC 10 rel.

(l) Criminal trial---

----Standard of proof---Benefit of doubt---Principle--- Prosecution is under obligation to prove its case against the accused person at the standard of proof required in criminal cases, i.e. beyond reasonable doubt standard, and cannot be said to have discharged that 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 persons, 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 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

Ghulam Shabbir Shar for Appellant.

Rukhsar Ahmed Junejo for the Complainant.

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

2024 Y L R 189

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

NAZEER AHMED alias NAZRO and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-86 of 2019, decided on 27th September, 2022.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7----Kidnapping or abducting for extorting property, valuable securities, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused were charged for kidnapping the brother of the complainant for ransom and releasing him after receiving the ransom amount---Complainant in his examination-in-chief admitted that one of the accused persons contacted his brother on cell phone, whereas the alleged abductee, in his examination-in-chief, deposed that seven accused persons made him phone call and asked him to accompany them to work at "K"---Likewise, complainant deposed that on 02.07.2010 he along with his two relatives went for the payment of ransom amount Rs. 05 Lac---Accused asked complainant on telephone that the said amount was to be paid at the Otaq of one Mr. "S" where he paid Rs. 05 Lac as ransom amount to one Mr. "S"---On the other hand, one of the relatives of complainant had belied such statement by deposing that on 02.07.2010, he, complainant and one another person went for the payment of ransom amount and paid the ransom amount to a person other than Mr. "S"---Putting the said two statements in juxtaposition, it was evident that both the said witnesses contradicted each other---Prosecution witnesses had also contradicted themselves on the point as to who went to police station for lodging FIR---According to complainant, he along with "R", "H" and "D" went to Police Station for registration of FIR on 05.07.2010---On the other hand, witness deposed that he along with his brother went at Police Station on 04.07.2010 and the police asked them to come again on the next day---On the next day they again went to Police Station for registration of FIR---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Faiz-ur-Rehman v. The State 2012 SCMR 538; Muhammad Tufail v. The State 2013 SCMR 768; Abdul Jabbar and others v. The State 2017 PCr.LJ 160 and Muhammad Naeem alias Neemon and 2 others v. The State and another 2017 YLR 448 ref.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7----Kidnapping or abducting for extorting property, valuable securities, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Admissions of witnesses creating doubts in the prosecution case---Accused were charged for kidnapping the brother of the complainant for ransom and releasing him after receiving the ransom amount---Record showed that there were certain admissions on the part of prosecution witnesses which damaged the case of the prosecution---Complainant in his cross examination admitted that his brother with his own will and wish went in and boarded the vehicle, allegedly used for abduction---Likewise, such admission had also been made by alleged abductee in his cross examination viz, he boarded such vehicle with his own will and wish as he had to go to "K" for his work at marble factory---Said admission by the complainant and alleged abductee spoiled their claim regarding abduction for the simple reason that abduction generally means taking away a person forcibly without his consent---Complainant himself had not claimed that his brother was forcibly taken away, on the other hand he clearly deposed that his brother boarded the vehicle wherein accused were already present with his own will and wish---Investigating Officer had also admitted that he did not produce roznamcha entry/ daily diary of his departure and arrival at the police station when he proceeded for site inspection---Non-production of roznamcha entry also put dent in the prosecution case---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Muhammad Akram v. State 2020 YLR Note 94 rel.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7----Criminal Procedure Code (V of 1898), S.164---Kidnapping or abducting for extorting property, valuable securities, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-recording of statement of abductee under S. 164, Cr.P.C.---Accused were charged for kidnapping the brother of the complainant for ransom and releasing him after receiving the ransom amount---Record showed that Investigating Officer did not record statement under S. 164, Cr.P.C. of the alleged abductee, which was injurious to the prosecution case---Statement of such witness could not be relied upon---Delayed recording of S. 164, Cr.P.C. statement of the witness is fatal to the prosecution case, what to speak about non-recording of S. 164, Cr.P.C. statement--- Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Imran Ashraf v. The State 2001 SCMR 424 rel.

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

----Ss. 365-A & 149---Anti-Terrorism Act (XXVII of 1997), S. 7----Kidnapping or abducting for extorting property, valuable securities, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of about twenty seven days in lodging FIR---Accused were charged for kidnapping the brother of the complainant for ransom and releasing him after receiving the ransom amount---Admittedly the complainant received a telephone call from the accused on 09.06.2010 regarding abduction of his brother and demand of ransom amount, whereas the FIR was registered on 05.07.2010---Thus, there occurred a delay of about 27 days---Complainant also admitted in his evidence that for about 25 days he used to receive telephonic calls from the accused for payment of ransom amount---In such view of the matter, it was incumbent upon the complainant to have reported the matter to police promptly but he remained mum till 05.07.2010---Alleged abductee admittedly reached home on 03.07.2010 but the FIR was lodged by the complainant on 05.07.2010 i.e. after a delay of two days from the date of release of alleged abductee---Such delay in lodging the FIR was fatal to the prosecution case---Circumstances established that the prosecution failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Sabir Hussain v. The State 2022 YLR 173 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession---Accused cannot be deprived of benefit of doubt merely because there is only one circumstance which created doubt in the prosecution story.

Shamoon alias Shamma v. The State 1995 SCMR 1377 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Haji Shamsuddin Rajper, Ali Ahmed Khan assisted by Bilal Ahmed Soomro and Abdul Raheem Mahar for Appellants.

Aftab Ahmed Shar, Additional Prosecutor General for the State.

Ghulam Murtaza Korai for the Complainant.

2024 Y L R 222

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

MUHAMMAD HANIF---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-350 of 2012, decided on 1st June, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence--- Benefit of doubt---Discrepancies in evidence of witnesses---Consequential---Accused were charged for committing murder of the sister of complainant---According to the evidence of complainant and two other witnesses, who were real brothers of the deceased, the incident took place on 12.11.2010 at 11.15 a.m.---First Information Report was lodged on 13.11.2010 at 10.00 p.m. after about 11 hours without any explanation when the victim had died on the spot---Said witnesses reached the place of incident and saw that the dead body was lying on the bed and her husband along with his sister were standing near the bed---Said witnesses found the deceased having marks of rope on her neck and also found injuries over her body which did not appear during post mortem---Thereafter witnesses negotiated with her mother and went to Police Station and lodged such FIR---Whilst the Women Medical Officer in her evidence stated that on 13.11.2010 she started post mortem of deceased at 02.30 p.m. and finished the same at 5.00 p.m.---However, the post mortem report did not speak about the time of arrival of the dead body in the hospital, thus there was serious discrepancy in the evidence of witnesses, which was fatal to the case of the prosecution--- Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---Infirmities---Accused were charged for committing murder of the sister of complainant---Women Medical Officer in her examination had admitted that rigor mortis was visibly present in the body of deceased and it was an established position in medical jurisprudence and toxicology that usual duration of rigor mortis was 24 to 48 hours in winter and 18 to 36 hours in summer---As the incident took place in winter and dead body already showed signs of rigor mortis, it suggested that the death must have taken place any time in the past 24 to 48 hours, which contradicted prosecution's story---Women Medical Officer did not mention time of the death and she also did not indicate that what was the gap between the incident and death, as she only mentioned the date and time of starting of post mortem and finishing the same---Meaning thereby, Women Medical Officer neither bothered to find out what was the exact time of the death, nor chose to mention it in the post mortem---In all such cases, benefit would naturally go to the accused---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Direct evidence not available---Accused were charged for committing murder of the sister of complainant---Record showed that only piece of evidence of witnesses was that accused was standing near bed of deceased along with his sister, however, it was an admitted position from the evidence available on record that no one was present at the scene of offence nor committed the murder of deceased at the place of incident---Even otherwise, the prosecution had failed to explain inordinate delay in the lodgment of FIR, therefore, it was very surprising that Trial Court had relied upon the contents of FIR and ignored material contradictions in the evidence of prosecution witnesses amongst each other---Under the law, FIR was not a substantive piece of evidence and no conviction could be recorded on the basis of an FIR alone---After having gone through the evidence of witnesses, it appeared that the same was not confidence inspiring as contradictory statements had been made---In the absence of any direct evidence and in the absence of any corroborative piece of evidence, Trial Court had wrongly convicted the accused and sentenced him, when it was a matter of record that mere presence of the accused was shown at the place of incident and nobody had seen him throttling the deceased, which fact would go in his favour---In the absence of any cogent, reliable and confidence inspiring evidence, not supported by any independent corroborative piece of evidence, the conviction awarded by Trial Court was without any justification---Trial Court disbelieved the version of the accused as to the dispute between the victim and her brothers---Fact that the victim died in the house of her brothers spoke volumes about their possible role, if any---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any 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---Benefit of doubt---DNA profile not conducted---Accused were charged for committing murder of the sister of complainant---Trial Court (conveniently) in the haste of awarding conviction ignored that during post mortem, Medico-Legal Officer found an eight months old IUD of a male baby from the victim's uterus---Accused after having married the victim on 13.02.2009 divorced her on 13.04.2010 and she was murdered on 12.11.2010 i.e. about 7 months after her divorce, then question was whose baby she was carrying---DNA test might have proved the paternity of the unborn child---Prosecution had not bothered to solve the unborn child's murder either---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond shadow of any doubt---Appeal against conviction was accordingly allowed.

Jawaid Choudhry for Appellant.

Muhammad Noonari, Deputy Prosecutor General, Sindh for the State.

2024 Y L R 254

[Sindh (Hyderabad Bench)]

Before Muhammad Shafi Siddiqui, J

ABDUL SHAKOOR through L. Rs. and others---Petitioners

Versus

Mst. ZAHIDA HAROON and 3 others---Respondents

Constitutional Petition No. S-295 of 2012, decided on 23rd May, 2022.

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

----Ss. 14 & 15---Eviction of tenant---Scope--- Personal bona fide need---Petitioners were legal heirs of the deceased who was original-tenant of the respondent (original-landlord)---Original-landlord had admittedly transferred the rights of the demised property to his son as being his share in property, however, said son passed away whose widow surfaced claiming to be the landlady/respondent--- Respondent/lady claimed personal requirement as she intended to open a shop of cosmetics with the assistance of her father-in-law by removing the intervening walls of the demised property (shops)---Plea of the petitioners/tenants was that it was not customary within the interior of Sindh that a lady could operate a shop of cosmetics---Parties had a round of litigation and the case was remanded---Validity---Record revealed that earlier, the case was remanded only as to whether or not, rent was paid to the respondent/lady after service of notice and/or service of application under S. 14 of Sindh Rented Premises Ordinance, 1979 ('the Ordinance 1979')---Admittedly, petitioners claimed respondent/father-in-law to be their landlord and the rent was never paid to respondent/lady---Evidence as required under S. 14 was not challenged by the petitioners---Even if it was considered to be case of personal requirement under S. 15 of the Ordinance, 1979, respondent/lady in her affidavit-in-evidence had stated that she intended to open a shop of cosmetics by removing the intervening walls of the shops, with the assistance of her father-in-law/respondent---Plea of the petitioners was not tenable as no customary law was recognized which could restrict a women/lady from conducting a lawful business such as present one i.e. running a shop of cosmetics---Assistance of father-in-law of the respondent/lady was also not denied, who (father-in-law) might be old and feeble but moral and valuable assistance was always there---Although after remand the Rent Controller and the Appellate Court had not given any findings on personal need either with or without bona fide requirement but since the evidences was otherwise available, therefore, High Court decided both the issues in favour of respondent that in either case, even if it was an application under S. 15, the personal bona fide need had been proved though such bona fide was not required under S.14 of the Ordinance---Default had taken place as no rent was admittedly tendered after notice of the application under S. 14 of the Ordinance 1979---In evidence of father-in-law he had stated that the proprietary rights of his property had been devolved amongst all his sons and daughters and demised property had come in the pool of husband of respondent/lady, who had expired---Thus, on both the counts, claim of the petitioners was liable to be dismissed; however, the rights as available to the tenant to challenge conduct of business by respondent/lady under S. 15-A of the Ordinance 1979 would remain protected---Constitutional petition filed by the tenant was dismissed, in circumstances.

Muhammad Arshad S. Pathan for Petitioner.

Muhammad Jameel Khan for Respondent No. 1.

Altaf Sachal Awan for Respondent No.2.

2024 Y L R 269

[Sindh]

Before Aftab Ahmed Gorar, J

Mst. HAWA ABDUL RAZZAK---Petitioner

Versus

ABDUL REHMAN TAAR WALA and 2 others---Respondents

Constitution Petition No. S-935 of 2021, decided on 15th June, 2022.

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

----S. 15---Eviction of tenant---Default in payment of rent---Absence of bona fide to pay rent---Eviction order was concurrently passed against the petitioner/tenant---Validity---Neither the petitioner/tenant rebutted relationship of landlord and tenant amongst the parties nor he brought any material to state as to when and how he had paid the rent amount for the last four years or so---At no point of time, petitioner had agitated to show his bona fide to pay rent to the respondent/landlord, and even had not pleaded the same before the Tribunal---Record was silent, on the part of the petitioner/tenant, about payment of rent amount during the period of default and receipts thereof---Moreover, the petitioner/tenant had failed to shake the evidence brought on record with regard to the default in payment of rent---Once a default was committed by a party, it would make him liable to be evicted from the premises---No illegality or infirmity was noticed in the impugned orders and judgments passed by both the Courts below, constitutional petition was dismissed, in circumstances.

Asghar Bangash for Petitioner.

Barrister Moiz Ahmed for Respondent No.1.

2024 Y L R 289

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD AMEER---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeal No. 85 of 2021, decided on 12th October, 2022.

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

----Ss. 365-A, 170, 171 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable security, etc., personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged that by showing himself to be FIA personnel he took the son of complainant in an inquiry, and later on demanded Bhatta/ransom of Rs. 30 lacs from complainant or else his son would be killed---Complainant deposed that he settled with the accused person an amount of Rs. one million and took 975000/= which he handed over to a person sitting on a motorcycle who introduced himself as a Brigadier and also showed him a card---After one hour, complainant again received a call from the accused person who demanded one lac more which the complainant arranged and handed over to the accused and after one hour his son was released by them---Complainant informed the CIA police that his son had been released---Prosecution witness, who was the real son of the complainant and the real brother of the abductee, narrated a different story in respect of the abduction and handing over the ransom to the accused persons---Said witness disclosed the time of the incident to be at about 0030 hours on 16-06- 2020---Said witness stated that the accused caught hold of abductee by the neck after which their sister shouted to which all house inmates came down---Complainant though claiming to be present had not deposed a single word about the said narration of his son---Eye-witness deposed that accused persons disclosed to him that abductee was harassing the daughter of a Brigadier and also showed him some screenshots of WhatsApp in which the name of abductee was visible---Said narration was also not supported by complainant who was also claiming to be available at the same time---Eye-witness gave further details in respect of the amount demanded by the accused persons sending him live locations to handover the amount to them, directing him to reach different places and ultimately he handed over the amount of Rs. 975000/- to the accused---Said witness and the complainant claimed to be with each other during the entire relevant time and places they went to but complainant did not depose a single word as narrated by eye-witness in such regard which created very serious doubt about their evidence---Appeal against conviction was allowed in circumstances.

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

----Ss. 365-A, 170, 171 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art.22---Kidnapping or abducting for extorting property, valuable security, etc., personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Infirmities---Accused was charged that he by showing himself to be FIA personnel took the son of complainant in an inquiry, and later on demanded Bhatta/ransom of Rs. 30 lacs from complainant or else his son would be killed---Identification parade of the accused was conducted before the Magistrate---Eye-witness had identified the accused during the identification parade but the identification parade was not conducted through the abductee who as per the case of prosecution remained with the accused persons for about twenty five days---Identification parade held before the Magistrate had also no value in the eyes of law as the accused before the identification parade was shown to the witness who identified him in the parade---Identification parade was conducted through eye-witness, the real brother of the abductee who during cross-examination admitted and stated that the accused was brought at their house for identification---Thus, they went to police station for recording the statement and thereafter, identification parade was conducted---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.

Mursal Kazmi alias Qamar Shah and another v. The State 2000 SCMR 1410; State/Government of Sindh v. Sobharo 1993 SCMR 585; Ghulam Shabir Ahmed and another v. The State 2011 SCMR 683; Haider Ali and others v. The State 2016 SCMR 1554; Nazir Ahmed v. Muhammad Iqbal and another 2011 SCMR 527; Majeed alias Majeedi and others v. The State 2019 SCMR 301; Kamal Din alias Kamala v. The State 2018 SCMR 577; Ashfaq Ahmed v. The State 2007 SCMR 641; Muhammad Siddique and others v. The State 2020 SCMR 342; Tariq Hameed Paracha and others v. Danish Ahmed and another 2019 YLR 2246 and Farmanullah v. Qadeem Khan and another 2011 SCMR 1474 ref.

Muhammad Bashir v. The State PLD 1958 SC (Pak.) 1; Muhammad Afzal and another v. The State 1982 SCMR 129 and Sudhindranath v. The State AIR 1952 Cal. 423 rel.

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

----Ss. 365-A, 170, 171 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Kidnapping or abducting for extorting property, valuable security, etc., personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent, common intention, act of terrorism---Appreciation of evidence---Star witness/abductee not supporting the case---Consequential---Accused was charged that he by showing himself to be FIA personnel took the son of complainant in an inquiry, later on demanded Bhatta/ransom of Rs. 30 lacs from complainant or else his son would be killed--- In the present case, the star witness of the case was the abductee---As per his evidence accused put a gun on him and took him towards the car and was blindfolded and after a 15/20 minute drive they stopped the car and shifted him to the house which was on the first floor---Star witness had not deposed a single word that when the door was knocked his sister responded to the same and when he was being kidnapped his sister shouted on which other witnesses came there---Abductee had also not supported eye-witness that the accused persons at the time of abduction showed some screenshots of WhatsApp etc.---Abductee also in his evidence claimed that he was tortured by the accused persons but on his release he was not examined by the doctor nor was referred to any doctor and none of the other witnesses disclosed that he was tortured---Said witness had also deposed that when he was released, on the second day police came to his house and showed him the picture of the accused at which he identified the accused---Star witness during cross-examination admitted that his statement under S. 161, Cr.P.C. was silent regarding the description of the accused which also suggested that he had not identified any accused after his release on seeing the photographs etc.---Said star witness had not identified the accused at the time of recording evidence and from his examination-in-chief it did not transpire as to whether he had identified the accused present in the court to be the same---Said witness also changed his stance from his earlier stance taken in the statement under S. 161, Cr.P.C., and made dishonest improvements which rendered his evidence unreliable---Appeal against conviction was allowed, in circumstances.

Aamir Mansoob Qureshi and Iftikhar Ahmed Shah for Appellant.

Ali Haider Saleem, Addl. P.G, Sindh for the State.

2024 Y L R 304

[Sindh (Sukkur Bench)]

Before Muhammad Junaid Ghaffar, J

AKHTIAR ALI SOLANGI---Applicant

Versus

QAMAR-UD-DIN and 6 others---Respondents

Criminal Transfer Application No. S-103 of 2021, decided on 1st April, 2022.

Criminal Procedure Code (V of 1898)---

----Ss. 346, 347 & 526---Penal Code (XLV of 1860), Ss. 337-A(i), 337-A(iv), 337-A(v), 337-F(i), 147, 148, 149 & 504--- Transfer application---Petitioner through application under S. 526, Cr.P.C., sought transfer of case from Judicial Magistrate to Sessions Court where a counter case of the same incident registered on behalf of the respondents was pending adjudication---Perusal of the Schedule-II, Cr.P.C. reflected that though all the said offences as alleged in the case might be tried by the Magistrate as well as Court of Sessions, however, insofar as S.337-A(v), P.P.C., was concerned, the punishment was for a term which might extend to [ten] years [or fourteen years as the case might be]; but in any case it was not a fixed punishment of ten years as contended by the applicant---In that case if the Magistrate came to a conclusion on the basis of evidence that a punishment of up to three years was to be awarded, then definitely he could award such punishment on his own---However, if the Magistrate came to a conclusion that the case had been proved, and a higher punishment of more than three years was to be awarded, then he would not be competent to award such punishment---If after completion of evidence or during the trial, the Magistrate came to a conclusion that a punishment of more than three years had to be awarded under S. 337-A(v), P.P.C., then admittedly he could not award the said punishment and would have to take recourse to Ss. 346 & 347, Cr.P.C. and as a consequence thereof, the matter would then be sent to the Court of Session---To that extent, there appeared to be a valid ground made out on behalf of the applicant for transfer of the case---Admittedly the present case as well as the case registered on behalf of the respondents was a counter-case initiated pursuant to the same incident---Said case was pending before the Court of Additional Sessions Judge and propriety demanded that such cases be decided by one Court to avoid conflicting judgments---In such circumstances, the appropriate Court would be the Court of Additional Sessions Judge, which was higher in hierarchy and could also try the cases triable by the Magistrate including case under S. 337-A(v), P.P.C.---Transfer application was allowed, in circumstances.

Allah Wasaya and others v. Sikandar Hayat and others 2012 SCMR 193 and The State v. Ghulam Qadir and others PLD 1964 (W.P) Pesh. 53 ref.

Shabbir Ali Bozdar for Applicant.

Muhammad Qayyum Arain for Respondent No.6.

Zulfiqar Ali Jatoi, Additional P.G. for the State.

2024 Y L R 318

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

JAHANGIR KHAN and others---Applicants

Versus

The STATE and others---Respondents

Criminal Miscellaneous Applications Nos. S-759 and S-764 of 2021, decided on 15th April, 2022.

Penal Code (XLV of 1860)---

----Ss. 324, 353, 399, 402, 148 & 149---Sindh Arms Act (V of 2013), S. 24---Criminal Procedure Code (V of 1898), S. 561-A---Inherent powers of High Court---Quashing of orders---Summary submitted by the Investigating Officer for disposal of the case/FIR, under "A" class was disapproved by the Magistrate---Validity---Record showed that it was a case of police encounter wherein brother of the complainant died---In the case in hand the first Investigating Officer who recorded the statements under S. 161, Cr.P.C. and visited the place of occurrence was of the opinion that the case was liable to be disposed of under "A" class and such report was concurred by the prosecution---However, while assigning the reasons, Magistrate ordered for further investigation which too was conducted and result was the same---In the case in hand it was second Investigation Officer who conducted the investigation of the present case and after the investigation he too recommended the case to be disposed of under "A" class---However on perusal of entire investigation reports it reflected that only applications filed by the brother and the mother of the deceased were considered as second version and nobody including the mother of deceased was examined by second Investigation Officer though she was not an eye-witness of arrest of the deceased but the application under Ss.22-A & 22-B, Cr.P.C., brought some facts in respect the encounter, and the brother of the deceased who claimed to be an eye-witness and filed application as under S. 491, Cr.P.C. before the encounter, was also not examined during second investigation--- Investigation Officer claimed that they were not traceable which was also reflected from the order of Magistrate wherein it was mentioned that "second party could not be served despite issuance of notice"---Circumstances established that no proper investigation of second version was conducted by the police nor the Magistrate passed order after considering the said facts, therefore the impugned order passed by the Judicial Magistrate was set-aside---High Court directed that since the Police Officials were allegedly involved in the case of fake encounter therefore it would be appropriate that investigation be handed over to the officer not bellow the rank of SSP of another district.

Safdar Ali v. Zafar Iqbal 2002 SCMR 63; Mst. Qudrat Bibi v. Muhammad Iqbal and another 2003 SCMR 68 and Sughran Bibi's case PLD 2018 SC 595 rel.

Mehfooz Ahmed Awan for Applicants (in Criminal Miscellaneous Application No. S-759 of 2021).

Qurban Ali Malano for Applicants (in Criminal Miscellaneous Application No. S-764 of 2021).

Syed Sardar Ali Shah Rizvi, Additional Prosecutor General for the State (in Criminal Miscellaneous Appli-cations Nos. S-759 and S-764 of 2021).

2024 Y L R 359

[Sindh (Sukkur Bench)]

Before Zafar Ahmed Rajput, J

RAZA MUHAMMAD and another---Applicants

Versus

The STATE---Respondent

Criminal Bail Application Nos. S-332 and S-348 of 2021, decided on 6th September, 2021.

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

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 302, 324, 109, 148 & 149---Qatl-i-amd, attempt to commit murder, abetment, rioting armed with deadly weapon, unlawful assembly---Ad-interim pre-arrest bail, confirmation of---Bail, grant of---Further inquiry---Accused were charged for committing murder of two persons and causing firearm injury to the third person over a dispute of agriculture land--- Admittedly, the Investigating Officer in his enquiry report, exonerated the accused/ petitioners from commission of alleged offence---Accused had been declared innocent during investigation and, therefore, after concluding his investigation, the Investigating Officer submitted his report under S. 173, Cr.P.C., suggesting disposal of the case under cancelled "A" Class and he released the two accused/petitioners under S. 497(2), Cr.P.C.---Opinion/ report of the Investigation Officer did not bind the court in any manner yet, the Courts could tentatively peep into its persuasiveness and vitality for the purpose of grant or refusal of bail to the accused---Opinion of the Investigating Officer could be taken into consideration as a relevant circumstances for a just decision of bail petition and it could be taken into consideration validly while deciding a bail application, provided the same was based upon sound material---Opinion of the Investigating Officer would be relevant at bail stage especially when the finding was with regard to the innocence of accused/petitioners---In such circumstances, the present accused/petitioners had made out a case one of further enquiry as envisaged under subsection (2) of S. 497, Cr.P.C.---Hence, the applications were allowed; interim pre-arrest bail granted to two accused was confirmed on the same terms and conditions, while other accused/petitioner was admitted to post-arrest bail.

2010 PCr.LJ 1818; 2010 PCr.LJ 512 and 2009 PCr.LJ 384 rel.

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

----Ss. 497 & 498---Bail---Observations made in bail order---Such observations are tentative in nature and same should not influence the Trial Court while deciding the case of the accused on merits.

Jamal Nasir Bhullo for Applicants (in Crl. Bail Application No. S-332 of 2021).

Saeed Jamal Lund for Applicant (in Crl. Bail Application No. S-348 of 2021).

Shafi Muhammad Mahar, Deputy Prosecutor General, Sindh for the State.

Safdar Ali Kanasiro for the Complainant.

2024 Y L R 364

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD ZEESHAN and others---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 163 and 167 of 2021, decided on 24th October, 2022.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of three days in lodging FIR---Consequential---Accused was charged that he along with his accomplices kidnapped son of complainant in furtherance of their common intention; demanded ransom amount and due to non-payment, committed his murder---Record showed that the dead body surfaced on 23.09.2015 and as per evidence of the complainant, he had received the last call for ransom on 19.09.2015 however, the FIR was registered on 26.09.2015---Delay in FIR had not been explained as to why after receiving the dead body on 23.09.2015, FIR was not registered on the same day but was registered on 26.09.2015 after a delay of three days and on enquiry the complainant who was present in Court stated that he was busy in consultation with his relatives as he had suspected that the offence would have been committed by accused and others--- However, neither the complainant disclosed the source of information in respect of the involvement of accused persons as to how he came to know that accused persons had committed the offence of kidnapping his son and thereafter murdering him nor anything was mentioned in the FIR in that respect---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. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Confessional state-ment of accused---Doubtful---Accused was charged that he along with his accomplices kidnapped son of complainant in furtherance of their common intention; demanded ransom amount and due to non-payment, committed his murder---As per confessional statement, accused brought the kid to the railway station where he mixed some intoxicating medicine in juice and gave the same to the kid and when he was completely unconscious he brought him in the train along with other accused persons; that child was completely unconscious and when he was gaining consciousness then again accused injected chloroform which led to the kid passing urine and after a few minutes he died; and then accused threw the dead body in the canal---If it was presumed that such confessional statement of accused was true then the evidence of a witness was not believable as he stated that he saw the child completely in his senses and happy mood reciting Naat on the way and after the seeing accused, he happily hugged him---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.

Abdul Manan v. Abdul Hadi and 7 others PLD 2019 Bal. 59; Muhammad Ishaque Khan and others v. The State and others PLD 1994 SC 259; Sanaullah v. The State 2020 MLD 659; Naseer Khan v. The State 2021 YLR 940; Muhammad Safeer and another v. The State and others 2017 PCr.LJ 1435; Riaz Ahmed v. The State and another 2019 PCr.LJ 46; Muhammad Ashraf v. The State 2016 SCMR 1617; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Khalid Mehmood and another v. The State and others 2021 SCMR 810; Gul Muhammad and another v. The State 2021 SCMR 381; Najaf Ali Shah v. The State 2021 SCMR 736; Akhtar Muhammad alias Ghani and others v. The State and others 2020 PCr.LJ 533; Muhammad Din v. The State 2021 PCr.LJ 839; The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Said Muhammad v. The State 1999 SCMR 2758; Muhammad Amin v. The State PLD 2006 SC 219; Muhammad Siddique and others v. The State 2020 SCMR 342 and Ghulam Nabi v. The State 2007 SCMR 808 ref.

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

----Ss. 302(b), 365-A & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, kidnapping or abduction for extorting property, valuable security, etc., common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-recovery of ransom amount---Consequential---Accused was charged that he along with his accomplices kidnapped son of complainant in furtherance of their common intention; demanded ransom amount and due to non-payment, committed his murder---No ransom demand had been proved by the prosecution through any tangible evidence---Moreover, there was no CDR to link the accused persons to the offence---No one saw the accused persons throwing the body of the deceased in the canal and the last seen evidence without proper identification of the accused persons could not be relied upon which in any event was only circumstantial evidence and was to be viewed with extreme caution---No toxicology report was produced to show that the child had even been drugged---Thus, the prosecution had failed to bring home the guilt of the accused beyond a reasonable doubt--- Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Benefit of doubt---Principle---Giving the benefit of doubt to an accused is not by way of concession but by way of right---There need not be many circumstances creating doubts; if there is a single circumstance which creates reasonable doubt about the guilt of the accused then the accused will be entitled to the benefit.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Insaf Ahmed Shaikh for Appellants (in Appeal No.163 of 2021).

Ali Gohar Masroof for Appellant (in Appeal No.167 of 2021).

Ali Haider Saleem, Addl. Prosecutor General Sindh for the State.

2024 Y L R 405

[Sindh]

Before Salahuddin Panhwar, J

Mst. ROZEENA RAZZAQ--- Applicant

Versus

Mirza MOSHIN ALI JAH and 6 others---Respondents

Criminal Miscellaneous Application No. S-85 of 2021, decided on 5th October, 2022.

Penal Code (XLV of 1860)---

----Ss. 415, 420, 463, 469 & 177---Criminal Procedure Code (V of 1898), S. 195---Cheating and dishonestly inducing delivery of property, forgery for purpose of harming reputation, furnishing false information---Cognizance---Complainant lodged FIR against respondent stating that he contracted marriage with her concealing the fact that he was already married, having three children and further he belonged to Fiq-a-jafaria---Complainant thereafter received divorce through Whatsapp---Report under S. 173, Cr.P.C. was submitted before the Magistrate with the opinion that the respondent had committed offence of cheating and false statement before the Nikahkhwan, but the Magistrate while disagreeing with the opinion of the Investigating Officer, declined to take cognizance on the said report---Validity---From the material collected by the Investigating Officer during investigation, it came on surface that the accused provided false information with regard to his faith as 'Sunni' and his earlier marriage, with an object to commit cheating with the complainant---Perusal of the S. 415, P.P.C. showed that for attracting the offence of cheating, deception was an essential element, which prima facie was available in the case of complainant and was attracted to the respondent---In the charge sheet S. 420, P.P.C., was also applied by the Investigating Officer---During investigation the respondent had not given any explanation that as to why he had wrongly informed about his faith and did not inform about his earlier marriage---In absence of such explanation, at the very initial stage it could be presumed that the intention of the respondent was nothing but to deceive the complainant---Hence prima facie S. 420, P.P.C., was also attracted to the case of the respondent---Bare reading of S. 469, P.P.C. coupled with S. 463, P.P.C., showed that prima facie said section too was attracted to the case of respondent---Perusal of the impugned order showed that the Judicial Magistrate while passing the impugned order had not considered said facts but had announced a pre-trial judgment and thereby the Magistrate had skipped the procedure---Magistrate was not competent to pass a pre-trial judgment and was required to examine material brought on record by the prosecution---No doubt, the opinion of the police was not binding upon the Magistrate but in the instant matter the Magistrate completely ignored the investigation conducted and material collected by the Investigating Officer--- Criminal Application was allowed and accused was sent up for trial, in circumstances.

2018 YLR 2548; PLD 2000 Lah. 355 and PLD 2017 Sindh 515 ref.

Riasat Ali for Applicant.

Shujaat Abbas for Respondent No.1.

Muhammad Hanif Samma, Amicus Curiae.

Zahoor Shah, A.P.G.

2024 Y L R 449

[Sindh]

Before Zafar Ahmed Rajput, J

GHULAM NABI---Petitioner

Versus

ASHFAQ HUSSAIN and 2 others---Respondents

Constitution Petition No. S-931 of 2021, decided on 7th March, 2022.

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

----S.15---Eviction of tenant---Grounds---Willful default in payment of rent and sub-letting--- Not established---Relationship of landlord and tenant, denial of---Concurrent findings were passed against the tenant---Contention of the petitioner/tenant was that he was not defaulter as he was depositing rent without any default and also paying bills accordingly---Validity---Admitted position was that there was no mutual written agreement between the parties for the payment of rent---Case of the respondents Nos. 1 and 2 (co-owners of rented property was that the petitioner (tenant) defaulted in payment of monthly rent from July, 2009; as such the period stipulated under S.10(1) of the Ordinance would have expired on 10.08.2009---Default within the purview of S. 15(2)(ii) of the Ordinance, would arise if the tenant fails to pay, in the absence of mutual agreement between the parties regulating the terms and condition for payment of rent, within sixty days after the rent has become due for payment---In the present case, the due date was 10.08.2009; therefore, the alleged default would have arisen on 10.10.2009---Stance of the petitioner was that respondent No.2 refused to receive the rent for the month of July, 2009, malafidely demanding vacant possession of the rent premises; hence, having no alternative he sent the rent through money order, dated 29.09.2009, which was refused by respondent No.2; hence, the petitioner tendered the rent to respondent No.2 within stipulated period when it was due i.e. 10.08.2009 and, thereafter, he filed rent case on 10th October 2009, which was again within stipulated period; the same was granted by the Rent Controller on 12th October 2009 and on the very next day when Ledger Number was allotted, the petitioner deposited monthly rent in the Court of Rent Controller; hence, the petitioner could not be held to be a defaulter in payment of monthly rent---Findings of the Courts below on the point of default in payment of monthly rent by 12 days being against the law and facts were not sustainable in law---Controller had also allowed the subject rent application on the ground of subletting by petitioner to a doctor running a clinic in the premises by recording his findings that in the Registration Certificate of the Clinic, issued by the Sindh Health Care Commission, the column of Type of Ownership shows 'partnership' and petitioner had admitted in his cross-examination that three doctors were his partners; hence, the petitioner changed the nature of business in rented premises and started a Clinic by entering into partnership with three doctors in violation of S. 15(2)(iii)(a) of the Ordinance by creating interest of other partners in the rented premises without the consent of respondents Nos. 1 and 2---There was no denial to the fact that it was the petitioner who was depositing monthly rent in the Court of Rent Controller and not any of his so-called partners---Tax authority's record showed that the petitioner was the sole proprietor of the Clinic---Nothing was available on record to establish that the petitioner had ceased to remain a tenant and/or he had parted with the possession of the rented premises and/or he had transferred tenancy rights or otherwise created any right, title and interest in the tenancy, goodwill and business in favour of any of the so-called partners through any partnership deed, registration of partnership firm with the Registrar of Firms or any other document---Hence, the right of tenancy was preserved in the name of petitioner and other so-called partners/doctors did not have any right in the tenancy---Circumstances suggested that the impugned order and judgment of the Courts below were contrary to the letter and spirit of law, as the question of default in payment of rent on the part of the petitioner and subletting was required to be determined on the principles employed in Ss. 10, 15(2)(ii) & 15(2)(iii)(a) of the Ordinance---Since the Courts below failed to determine the rights of the parties in lis under the governing laws and as per settled principles of administration of justice, High Court had jurisdiction under Art. 199 of the Constitution to rectify the wrong and upset the erroneous concurrent findings of the Courts below by interfering in the impugned order and judgment---Constitutional petition was allowed by setting aside impugned orders, in circumstances.

Zafar Ali v. Allah Bachayo PLD 1989 SC 294; Barkhurdar v. Muhammad Razzaq PLD 1989 SC 749 and Nazir Ahmad v. Zeban Bibi 2001 CLC 527 ref.

Muhammad Shafi v. State Life Insurance Corporation 2009 SCMR 893 and Muhammad Subhan and another v. Mst. Bilquis Begum through Legal Heirs and 3 others 1994 SCMR 1507 rel.

Amir Asher Azeem for Petitioner.

Adil Rasheed for Respondents Nos.1 and 2.

Nemo for Respondent No. 3.

2024 Y L R 470

[Sindh]

Before Mohammad Karim Khan Agha and Arshad Hussain Khan, JJ

MUHAMMAD SOHAIL alias KALOO alias FAHAD---Appellant

Versus

The STATE---Respondent

Special Criminal A.T.A. No. 106 of 2021, decided on 6th December, 2022.

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

----Ss. 336-B & 337-L(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Hurt by corrosive substance (acid), causing hurt, act of terrorism---Appreciation of evidence---Delay of one month in lodging FIR---Inconsequential---Accused was charged for sprinkling acid on the face of complainant, due to which, his face, neck, eyes and hands were burnt---Record showed that the FIR was lodged after a delay of one month, however that delay was not fatal to the prosecution case as the delay in lodging the FIR had been fully explained that the complainant was confined in hospital with serious burn injuries to his face including his mouth, which precluded him from speaking and that as soon as he was well enough he recorded his S. 154, Cr.P.C. statement which was converted into the FIR in this case---Thus, the delay in lodging the FIR was not found to be fatal to the prosecution case---Circumstances established that the prosecution had proved its case beyond a reasonable doubt but due to non-production of mobile phones and CDR data, the sentence of the accused under S. 336(b), P.P.C, was reduced from life imprisonment to 14 years imprisonment---Appeal was dismissed with said modification in sentence.

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

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

----Ss. 336-B & 337-L(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Hurt by corrosive substance (acid), causing hurt, act of terrorism---Appreciation of evidence---Ocular account believable---Accused was charged for sprinkling acid on the face of complainant, due to which, his face, neck, eyes and hands were burnt---Neither witness nor the complainant who lost his eye sight during the acid attack by the accused were dented during lengthy cross-examination---Evidence of said witnesses had not significantly improved upon their S. 161, Cr.P.C. statements and S.154 Cr.P.C statements respectively---Said witnesses had given their evidence in a straightforward and natural manner and in their evidence they were fully corroborative of each other in respect of meeting each other at school; falling in love; arranging a marriage with the consent of their parents; how the accused entered the picture and fell obsessively in love with lady witness; how accused threatened complainant to leave lady witness for him right up to the time when complainant saw the accused who he knew from the super market threatening phone calls of accused and throwing acid in complainant's face out of jealousy---Neither lady witness nor complainant had any ill will or enmity with the accused which would lead them to falsely implicate the accused in the case---Accused was named in the FIR with the specific role of throwing acid/corrosive substance on the face of complainant---Evidence of said witnesses was found to be reliable, trust worthy and confidence inspiring and thus believable---Eyewitness corroborated the evidence of complainant in all material respects concerning the incident---Said witness was the eye-witness who saw the accused after throwing the acid on the complainant and running away from the house---Said witness lived at the house and was not a chance witness---Admittedly, eyewitness was related to the complainant however he had no ill will or enmity with the accused and as such his evidence could be safely relied upon---Circumstances established that the prosecution had proved its case beyond reasonable doubt but due to non-production of mobile phones and CDR data, sentence of the accused under S. 336(b), P.P.C., was reduced from life imprisonment to 14 years imprisonment---Appeal was dismissed with said modification in sentence.

Naveed Asghar v. The State PLD 2021 SC 600; Saeed Ahmad v. Muhammad Nawaz 2012 SCMR 89; Arshad Khan v. The State 2017 SCMR 564; Mst. Rukhsana Begum's case 2017 SCMR 596; Wazir Muhammad v. The State 1992 SCMR 1134; Tariq Pervez v. The State 1995 SCMR 1345; Sheral alias Sher Muhammad v. The State 1999 SCMR 697; Muhammad Saleh v. Muhammad Imran 2021 YLR Note 23; Moin Ali v. The State 2020 YLR 1160; Rana Shabbir Hussain v. The State 2005 PCr.LJ 1599; Altaf Hussain v. The State 2020 PCr.LJ 1419; Moharram Chhutto v. Qadir Bux 2021 YLR Note 24; Ijaz Ahmad v. The State 2009 SCMR 99; Muhammad Nadeem alis Deemi v. The State 2011 SCMR 872; Gulzar Ahmad v. The State 2016 YLR 1955; Muhammad Anwar v. The State 1977 PCr.LJ 398 and Pervez alias Laddu v. The State 2020 PCr.LJ 1672 ref.

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

----Ss. 336-B & 337-L(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Hurt by corrosive substance (acid), causing hurt, act of terrorism---Appreciation of evidence---Police witnesses, evidence of---Accused was charged for sprinkling acid on the face of complainant, due to which, his face, neck, eyes and hands were burnt---Police evidence was corroborative of each other and since there was no proven ill will or enmity between the police and the accused their evidence could be safely relied upon as they had no reason to falsely implicate the accused for example by planting the mug which was used to throw acid on the complainant---Circumstances established that the prosecution had proved its case beyond a reasonable doubt but due to non-production of mobile phones and CDR data, sentence of the accused under S. 336(b), P.P.C., was reduced from life imprisonment to 14 years imprisonment---Appeal was dismissed with said modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 336-B & 337-L(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Hurt by corrosive substance (acid), causing hurt, act of terrorism---Appreciation of evidence---Recovery of mug used for throwing acid from the house of accused---Consequential---Accused was charged for sprinkling acid on the face of complainant, due to which, his face, neck, eyes and hands were burnt---Mug which was used by accused to throw acid on the complainant was recovered from the house of accused along with his burnt Shalwar Qameez which when sent for chemical analysis and produced a positive chemical report---Circumstances established that the prosecution had proved its case beyond a reasonable doubt but due to non-production of mobile phones and CDR data, sentence of the accused under S. 336(b), P.P.C., was reduced from life imprisonment to 14 years imprisonment---Appeal was dismissed with said modification in sentence.

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

----Ss. 336-B & 337-L(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Hurt by corrosive substance (acid), causing hurt, act of terrorism---Appreciation of evidence--- Minor contradictions in evidence of witnesses---Inconsequntial---Accused was charged for sprinkling acid on the face of complainant, due to which, his face, neck, eyes and hands were burnt---Witnesses were consistent in their evidence and even if 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 and the conviction of the accused---Circumstances established that the prosecution had proved its case beyond a reasonable doubt but due to non-production of mobile phones and CDR data, sentence of the accused under S. 336(b), P.P.C., was reduced from life imprisonment to 14 years 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. 336-B & 337-L(2)---Anti-Terrorism Act (XXVII of 1997), S. 7---Hurt by corrosive substance (acid), causing hurt, act of terrorism---Appreciation of evidence---No offence of terrorism made out---Sentence, reduction in---Accused was charged for sprinkling acid on the face of complainant, due to which, his face, neck, eyes and hands were burnt---Based on the particular facts and circumstances of the case, it appeared that the intent of the accused was to frighten the complainant into breaking off his marriage to lady witness so that he could marry her instead---There was no object, intent, purpose or design to create terror and as such the accused was acquitted of all offences under the Anti-Terrorism Act, 1997---Prosecution had proved its case beyond a reasonable doubt, however, on account of a few minor lapses in the prosecution case for example, the failure of the prosecution to produce the mobile phones and CDR data, the sentence of the accused under S. 336(b), P.P.C., was reduced from life imprisonment to 14 years imprisonment---Appeal was dismissed with said modification in sentence.

Ghulam Abbas v. The State 2022 SCMR 1102; Zafar Iqbal v. The State 2010 SCMR 401 and Ghual Mohy-Ud-Din v. State 2014 SCMR 1034 rel.

Moula Bux Bhutto for Appellant.

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

2024 Y L R 504

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar, J

SONA KHAN and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. S-49 of 2020, decided on 9th December, 2022.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 504 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, Intentional insult with intent to provoke breach of the peace, common intention---Appreciation of evidence---Sentence, reduction in---Accused were charged for committing murder of the brother of the complainant by firing---Record showed that Trial Court convicted and sentenced both the accused to imprisonment for life maximum---Allegation against accused "S" was that he only instigated co-accused for causing murder of deceased; whereas the allegation against other accused "M" as levelled by the prosecution was that he allegedly caused rifle shot injury to deceased which hit him on his chest from right side---No offensive weapon was recovered from possession of accused "M" and per jail roll, he had served out 15 years and 07 months and earned remission of 08 years, 07 months and 01 day; whereas remaining portion of his sentence as shown in jail roll was only 03 months and 29 days---Hence, said accused had served out substantive portion of his sentence---As far as role against accused "S" was concerned, his role was only instigating other accused in commission of the offence---Per Forensic Science Laboratory Report, the offensive weapons were sent to the Laboratory with delay of about 11 days and no explanation had been furnished by the prosecution for sending said weapons with a delay---However, admittedly, the eye-witnesses of the case had fully explained the occurrence as well as each and every aspect of occurrence in sequence---In present case, the complainant was the brother of deceased while other witnesses were close relatives of complainant who were present at the time of incident---Prosecution had not made any irregularity which might warrant the High Court to interfere with the verdict of the Trial Court---Ocular evidence also found corroboration from the medical evidence actuating the cause of death and time of incident as well as weapon used in commission of the offence---Trial Court's verdict in such situation could not be interfered with, however, keeping in view the discrepancies as well as prayer made by defence for converting the case from S. 302(b), P.P.C. to S. 302(c), P.P.C. on the ground that accused "S" was aged about 92 years and role against him was only of instigation, and other accused had served out his substantive sentence, the conviction and sentence of the accused persons deserved to be altered/ converted--- Appeal was dismissed, however, the sentences of the accused were modified and reduced from imprisonment for life to only already undergone by them.

1995 SCMR 127; 2017 SCMR 486; 2019 SCMR 1417; 2016 PCr.LJ 541; 2018 YLR 1855; 2016 PCr.LJ Note 30 and 2012 YLR 2513 ref.

Ghulam Shabbir Mari for Appellants.

Muhammad Ali Noonari, D.P.G., Sindh for the State.

2024 Y L R 530

[Sindh (Hyderabad Bench)]

Before Naimatullah Phulpoto, J

NADEEM---Applicant

Versus

Mst. REEMA---Respondent

Civil Transfer Application No. S-22 2021, decided on 6th September, 2021.

Family Courts Act (XXXV of 1964)---

----S. 25-A---Transfer of case---Scope---Applicant/defendant (husband) sought transfer of suit for dissolution of marriage by way of khula, recovery of dowry articles and medical expenses filed by his wife from one Court to another---Validity---Applicant/defendant couldn't produce any material to satisfy the Court that after remand of the case, Trial Court had refused to allow applicant/defendant to produce the additional evidence on the issue of dowry articles and medical expenses---Mere allegation against Presiding Officer without any substance was no ground to transfer the case particularly Family suit from the territorial jurisdiction of the Family Court---In the matters of matrimonial proceedings, it was the convenience of the wife, which was to be considered and given preference over that of the husband---Transfer application being without merit was dismissed, in circumstances.

Akhtar Ali v. The State 2020 SCMR 1243 rel.

Rao Faisal Ali for Applicant.

Parshotum Khatri for Respondent No.1

Muhammad Ismail Memon Additional A.G. Sindh.

2024 Y L R 537

[Sindh]

Before Mahmood A. Khan, J

KANIZ FATIMA and others---Plaintiffs

Versus

Syed QASEEMUL HASSAN and others---Defendants

Suits Nos. 943 of 1997, 174, 175 of 1999 and 825 of 2002, decided on 4th June, 2022.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 63---Suit for declaration, injunction, partition and recovery of damages---Benami transaction---Proof---Special means of knowledge, absence of---Plaintiffs claimed that defendants were benami owners of suit properties whereas their deceased father was the actual owner---Validity---Suit properties were standing in the names of persons who were made so entitled by deceased father of plaintiffs with his own freewill---Source of consideration was not denied to also have come from him---Custody of original title documents along with legal possession thereof was also available with the owners and no motive for benami transaction had come forward---Plaintiffs failed to bring any material evidence in support thereof except verbal assertions from a witness who was not a family member at the relevant time---Evidence of such witness was not based upon personal knowledge---Suit was dismissed in circumstances.

Muhammad Sajjad Hussain v. Anwar Hussain 1991 SCMR 703 and Ghulam Murtaza v. Asia Bibi and others PLD 2010 SC 569 ref.

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

----Ss. 42 & 54---Suit for declaration, injunction, partition, rendition of accounts and recovery of damages---Partnership, proof of---Rendition of accounts---Plaintiffs claimed that their late father was running sole proprietorship business which was later converted to partnership with defendant (brother of plaintiffs) and he was only benami owner of suit property---Validity---Defendant stated in written statement that business of partnership was dissolved but no proof or settlement of dissolution along with required settlement of accounts was brought forward in support of such claim---Wife of defendant admitted that business continued till the death of defendant but she denied that she was in knowledge of any accounts submitted to other legal heirs---Preliminary decree for rendition of accounts was available to other legal heirs for enforcement---Suit property was benami and was in the ownership of deceased father of parties---High Court directed that if suit property was not divisible, then it should be sold by public auction and proceeds thereof be divided among legal heirs in accordance with Sharia---High Court further directed that during auction the legal heirs would have first right of refusal---Suit was decreed accordingly.

Muhammad Sajjad Hussain v. Anwar Hussain 1991 SCMR 703 and Ghulam Murtaza v. Asia Bibi and others PLD 2010 SC 569 ref.

Munawar Juna for Plaintiffs.

Muhammad Nauman Jamali for Defendants.

2024 Y L R 556

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

NAEEM AKHTAR alias ALI HAIDER and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 538 and Confirmation Case No. 14 of 2021, decided on 27th September, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Sentence, reduction in---Charas weighing 3233 kilograms was allegedly recovered from accused---In the present case, evidence of the prosecution witnesses was found as reliable, trustworthy and confidence inspiring---Recovery of huge quantity of charas was affected from the possession of accused persons and the same was kept in safe custody and within shortest period it was sent for chemical examination---Prosecution also proved the safe custody and its safe transmission by producing the witnesses in whose custody the property was in the Malkhana and through whom it was sent for chemical examination---All the chains from the recovery of the narcotics till sending the same for chemical examination had been proved by the prosecution beyond a reasonable doubt---Contention raised by the defence that complainant and the Investigating Officer of the case was the same person, therefore his evidence could not be relied upon and its benefit must be given to the accused had no force as there was no prohibition in the law for the Police Officer to investigate the case lodged by him---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, the Trial Court had passed the sentence against the accused and awarded him death sentence on the basis of his previous conviction in a narcotics case which was in violation of the legal procedure provided under the law---Death penalty awarded by the Trial Court to the accused was a harsh one and not in accordance with law, hence, same was reduced to imprisonment for life, in circumstances---Appeal was dismissed with modification in sentence.

Syed Mushtaque v. The State PLD 2003 Kar. 216; Akber v. The State 2017 YLR 277; State v. Mujahid Naseem Lodhi PLD 2017 SC 671; State v. Sohail Khan 2019 SCMR 1288; State v. Fakhar Zaman 2019 SCMR 1122 and State v. Muhammad Ramzan and others 2019 SCMR 1295 ref.

Zafar v. The State 2008 SCMR 1254 rel.

(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---Non-association of private persons---Inconsequential---Charas weighing 3233 kilograms was allegedly recovered from accused---In the present case, the objection raised by defence that having prior information no private persons were associated as witness/mashir in the recovery proceeding hence the provision of S. 103, Cr.P.C., was violated by the complainant and the evidence of Police Officials could not be relied upon while awarding the conviction in cases of capital punishment also had no force as the reluctance of the general public to become a witness in such cases had become a judicially recognized fact and there was no way out but to consider the statement of the official witnesses as no legal bar or restriction had been imposed---Even otherwise there was no time to collect independent witnesses---No direct enmity or ill-will had been suggested by the accused against the complainant or any of the officials who participated in recovery proceedings during cross-examination and therefore in the circumstances the Police Officials were good witnesses and could be relied upon if their testimony remained un-shattered during the cross-examination---Even otherwise, the provision of S. 25 of the Control of Narcotic Substances Act had provided the exclusion of S. 103, Cr.P.C., during recovery proceedings---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, the Trial Court had passed the sentence against the accused and awarded him death sentence on the basis of his previous conviction in the narcotics case which was in violation of the legal procedure provided under the law---Death penalty awarded by the Trial Court to the accused was a harsh one and not in accordance with law, hence, same was reduced to imprisonment for life, in circumstances---Appeal was dismissed with modification in sentence.

Salah-ud-Din v. The State 2010 SCMR 1962; Shabbir Hussain v. The State 2021 SCMR 198 and Mushtaq Ahmad v. The State and another 2020 SCMR 474 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of the narcotic substance and the safe transmission of the samples to the chemical laboratory established---Charas weighing 3233 kilograms was allegedly recovered from accused---Evidence in respect of safe custody of the narcotic substance and the safe transmission of the samples to the chemical laboratory for analysis was carefully examined and it was found that the same had been proved by the prosecution by examining official witness who at that time was the incharge of Malkhana and kept the charas in safe custody, and he was also complainant and the Investigation Officer of the case---During cross-examination said witness stated that there was no Malkhana incharge because he was Malkhana incharge, being the S.H.O.---Said witness exhibited the Malkhana entry through which he deposited the recovered narcotics in the Malkhana---Recovery was affected on 13.11.2012 to 14.11.2012 and the same was sent for chemical examination on 15.11.2012 through SI who fully supported the case of prosecution---On examination of Chemical Analyzer's report it was clear that the property was deposited on 15.11.2012 by the ASI---Report further reflected that the samples were with three perfect seals and as per copy sent---Circumstances established that the prosecution had proved its case beyond any shadow of doubt---However, the Trial Court had passed the sentence against the accused and awarded him death sentence on the basis of his previous conviction in the narcotics case which was in violation of the legal procedure provided under the law---Death penalty awarded by the Trial Court to the accused was a harsh one and not in accordance with law, hence same was reduced to imprisonment for life, in circumstances---Appeal was dismissed with modification in sentence.

Izzatullah and another v. The State 2019 SCMR 1975 and Zahid

and another v. The State 2020 SCMR 590 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Minor contra-dictions in statements of witnesses---Inconsequential---Charas weighing 3233 kilograms was allegedly recovered from accused---Defence emphasized that there were material contradictions in the case of prosecution but no such material contradiction had been highlighted to create doubt in the prosecution story---Courts are supposed to dispose of the matter with a dynamic approach, instead of acquitting the drug paddlers on technicalities---If the material that comes before the court is sufficient to connect the accused with the commission of the crime the accused can still be convicted notwithstanding minor omissions that have no bearing on the outcome of the case---Prosecution had proven its case against the accused persons beyond a reasonable doubt by producing the reliable, trustworthy and confidence inspiring evidence in shape of oral/direct and documentary evidence corroborated by the report of Chemical Examiner---Appeal was dismissed with modification in sentence.

Ghulam Qadir v. The State PLD 2006 SC 61 and The State/ANF v. Muhammad Arshad 2017 SCMR 283 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Sentence, quantum of---Charas weighing 3233 kilograms was allegedly recovered from accused---Record showed that the Trial Court had passed the sentence against the accused and awarded him death sentence on the basis of his previous conviction in the narcotics case which was in violation of the legal procedure provided under the law---Prosecution had failed to comply with the provisions in respect of proving the previous conviction of the accused---Death penalty awarded by the Trial Court to the accused was a harsh one and not in accordance with law, hence, same was reduced to imprisonment for life, in circumstances---Appeal was dismissed with modification in sentence.

Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254 and Ghulam Haider and others v. Murad through Legal Representatives and others PLD 2012 SC 501 rel.

Muhammad Farooq for Appellants.

Habib Ahmed, Special Prosecutor ANF for Respondent.

2024 Y L R 578

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi, J

AHSAN---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-74 of 2021, decided on 30th May, 2022.

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

----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Kidnapping, abducting or inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa, ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Benefit of doubt---Statement of abductee in contradiction to the charge framed---Accused were charged for trespassing the house of abductee/sister-in-law of complainant, kidnapping her with intention to commit zina and throwing her from motorcycle, with the result that her teeth, legs and arms were broken---Abductee while appearing before the Trial Court had deposed that after her abduction accused beat her mercilessly with iron rod and she became unconscious and regained senses in hospital, where she was examined by the Medical Officer---Police and her relatives also arrived at hospital---From said hospital, she was referred to another hospital, but her relatives took her to a different hospital for further treatment---Said statement of abductee clearly showed that she sustained injuries with the blows of iron rod and not due to throwing from a motorcycle---Surprising to note that the entire charge was silent with regard to the allegation of torture and inflicting injuries with the blows of iron rod---Charge only specified that accused persons while taking abductee threw her from the motorcycle as a result of which she sustained injuries---Charge, thus, was in conflict with the statement of abductee recorded before the Judicial Magistrate, under S. 164, Cr.P.C., as well as her evidence adduced before the Trial Court---Likewise, while examining the accused under S. 342, Cr.P.C., the Trial Court did not put a single question to the accused as to causing torture to abductee and inflicting injuries to her with the blows of iron rod---None of the prosecution witnesses had supported abductee that injuries on her person were caused with the blows of iron rod and she was subjected to torture by the accused 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.

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

----S. 342---Examination of accused---Scope---Each and every material piece of evidence brought on record by the prosecution against an accused must be put to him at the time of recording of his statement under S. 342, Cr.P.C., so as to provide him an opportunity to explain his position in that regard---Denial of such opportunity to the accused defeated the ends of justice---Failure to comply with this mandatory requirement vitiates a trial.

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

----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Kidnapping, abducting or inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa, ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence--- Contradiction between---Accused were charged for trespassing the house of abductee/sister-in-law of complainant, kidnaping her with intention to commit zina and throwing her from motorcycle, with the result that her teeth, legs and arms were broken---Record showed that there was no eye-witness of incident to the extent of injuries sustained by victim except her own statement---Evidence of victim was contradictory with the medical evidence---When evidence of victim was contradictory with medical evidence then propriety of safe administration demanded that its benefit would go in favour 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 allowed, in circumstances.

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

----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Kidnapping, abducting or inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa, ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused were charged for trespassing the house of abductee/sister-in-law of complainant, kidnaping her with intention to commit zina and throwing her from motorcycle, with the result that her teeth, legs and arms were broken---According to Medical Officer, victim was brought at hospital in injured condition on 09.07.2019 at 1:45 pm whereas Head Constable/witness in his deposition had stated that he was present at Police Station at 1:30 pm when SHO informed him about arrival of an injured at hospital with a history of road traffic accident and directed him to go there---Said witness went to hospital and issued letter for providing medical treatment to victim---By stating so, said witness had contradicted Medical Officer in respect of time of arrival of victim in hospital---Surprising to note that according to Medical Officer victim was brought at hospital at 1:45 pm, but memo of inspection of injuries, prepared by Head Constable and placed on record, showed its time of preparation at 1:40 pm---How was it possible that such a memo was prepared at hospital before arrival of victim at hospital, as she according to Medical Officer was brought at hospital at 1:45 p.m.---Complainant while appearing before the Trial Court had contradicted the story narrated by him in his FIR by deposing that on 09.07.2019 at 2 p.m., when he reached at hospital and saw victim in injured condition and due to seriousness of injuries she was shifted to another hospital, but he suppressed that fact in FIR which was registered by him on next day (10.07.2019) at 5:00 p.m., which itself made out the case as doubtful---Complainant also contradicted a witness in his cross-examination that he reached the house of his in-laws before ten minutes of the incident whereas according to that witness, complainant came to their house before one hour of the incident---According to complainant the police informed him about the admission of victim in hospital, whereas that witness in his cross-examination had admitted that Police Constable was their close relative who informed him about the admission of victim in hospital, in presence of complainant---Complainant had stated that there were 15 to 16 houses adjacent to the house of his in-laws whereas according to witness only 3 or 4 houses were situated near to his house---Said witnesses had further been contradicted by victim, who in her cross-examination had stated that about 4 to 5 houses were situated in their Mohallah---Another witness in his examination-in-chief had deposed that on 30.07.2019 he along with others brought victim at Police Station where ASI prepared memo of recording S. 164, Cr.P.C. statement of abductee/victim---On the other hand, said ASI in his cross-examination had stated that victim came alone at Police Station and her relatives reached after 30 to 45 minutes of her arrival on his call---Witness in his deposition had stated that memo of recording S. 164, Cr.P.C. statement of victim was prepared by ASI in his presence and in presence of Mr. "A" whereas according to Investigating Officer such a memo was prepared by WHC on his dictation---Prosecution case was that when accused persons entered into the house of victim, they took out pistols from the folds of their shalwar and forcibly abducted victim on the show of pistols---Victim though had supported such aspect of the matter in her evidence before the Trial Court, but narrated a different story in her S. 164, Cr.P.C. statement by stating that accused fired from his gun when entering in her house---None of the witnesses had deposed a single word in her support that accused was armed with gun and he fired a shot from his gun inside the house of victim---Comparison of the statements of complainant, victim and eye-witness established that they not only contradicted each other, but altogether narrated a different and conflicting story---Thus, it was difficult for a prudent mind to ascertain that who was deposing true facts, when otherwise under the facts and circumstances of the case, they were the star witnesses of the prosecution and being the central figures, the entire prosecution case revolved upon their testimony, but due to glaring contradictions and discrepancies, noted above, their testimony was not worth credence---Thus, in no way the statements of either of the witnesses were helpful to the prosecution rather caused a big and irreparable dent and damage to the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Criminal Procedure Code (V of 1898), S. 103---Kidnapping, abducting or inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa, ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses--- Consequential---Accused were charged for trespassing the house of abductee / sister-in-law of complainant, kidnapping her with intention to commit zina and throwing her from motorcycle with the result that her teeth, legs and arms were broken---Prosecution had claimed that accused was arrested on 11.07.2019 in presence of mashirs, who were related to complainant party---Investigating Officer in his cross-examination had admitted that place of arrest of accused was a busy place, but he did not take any effort to join an independent person to act as mashir---Said admission, on the face of it, indicated that Arresting Officer had sufficient opportunity to join an independent person from the place of arrest, but did not bother to associate an independent source to strengthen the case of the prosecution by collecting an independent evidence either at the time of arrest of accused or during the whole investigation---Prosecution had sufficient opportunity to collect an independent witness to strengthen the case of the prosecution by corroborating the related witnesses, but no such attempt was made---No explanation in that regard had been furnished by the prosecution and also no efforts were made by the prosecution to secure the independent witness---Non-compliance of provision of S. 103, Cr.P.C. created serious doubt in the prosecution story---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mushtaq Ahmed v. The State PLD 1996 SC 574 and The State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

(f) Criminal trial---

----Witness--- Related witness---Scope---No doubt the evidence of a related witness cannot be discarded merely on the ground of his relationship with the complainant party, but his evidence must be scrutinized with a greater degree of circumspection.

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

----Art. 129(g)---Withholding material evidence---Effect---Despite of availability of independent/neutral witnesses, their non-association will draw an inference in view of Art. 129(g) of Qanun-e-Shahadat, 1984.

(h) Criminal trial---

----Witness---Impartial and disinterested witness---Scope---Not necessary that a witness, who is neither related to complainant nor inimical towards the accused, always speaks true---It is the duty of the court to scrutinize the statement of such witness with utmost care and caution.

Muhammad Saleem v. The State 2010 SCMR 374 rel.

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

----Ss. 365-B, 336, 337-A(i), 337-F(v), 452 & 34---Criminal Procedure Code (V of 1898), S. 103---Kidnapping, abducting or inducing woman to compel for marriage, itlaf-i-salahiyyat-i-udw, shajjah-i-khafifa, ghayr-jaifah-hashimah, house-trespass after preparation for hurt, assault or wrongful restraint, common intention---Appreciation of evidence---Benefit of doubt---Delay of twenty eight hours in lodging the FIR not explained---Accused were charged for trespassing the house of abductee/sister-in-law of complainant, kidnapping her with intention to commit zina and throwing her from motorcycle with the result that her teeth, legs and arms were broken---Incident which formed basis of the present case was shown to have taken place on 09.07.2019 at 1:00 p.m. and undoubtedly the FIR was lodged at 5:00 pm on 10.07.2019 i.e. after 28 hours of the incident---Prosecution had not been able to furnish any explanation with regard to delay in lodging of FIR---Hence, presumption could be drawn that FIR had been lodged after due deliberations and consultations---First Information Report was always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime, thus it had a significant role to play---If there was any delay in lodging of FIR and commencement of investigation, it would give rise to a doubt and benefit thereof was to be extended to 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.

Zeeshan alias Shani v. The State 2012 SCMR 428 rel.

(j) Criminal trial---

----Benefit of doubt---Principle---Even a single doubt if found reasonable will be sufficient to acquit the accused, giving him/them benefit of doubt because bundle of doubts are not required to extend the legal benefit to the accused.

Riaz Masih alias Mithoo v. The State 1995 SCMR 1730 and Sardar Ali v Hameedullah and others 2019 PCr.LJ 186 rel.

(k) Criminal trial---

----Heinous offence--- Presumption of innocence---Principle---Involvement of an accused in a heinous offence is not sufficient to convict him as the accused continues with presumption of innocence until found guilty at the end of the trial---Prosecution is bound to establish its case against the accused beyond shadow of any reasonable doubt by producing confidence inspiring and trustworthy evidence.

(l) Criminal trial---

----Conviction---Scope---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.

Nooruddin Mahesar for Appellant.

Abid Hussain Qadri for the Complainant.

Aitbar Ali Bullo for the State.

2024 Y L R 599

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

HUBDAR alias HUBOO JAGRANI and others---Appellants

Versus

The STATE---Respondents

Special Anti-Terrorism Appeal No. D-81 and Special Anti-Terrorism Jail Appeal No. D-83 of 2022, decided on 13th October, 2022.

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

----Ss. 324, 353, 186, 224, 225, 427, 337-F(i), 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief causing damage to the amount of fifty rupees, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Contradictions in the statements of witnesses---Accused were charged for making murderous assault on the police party with firing while their companion was arrested, due to which one Police Constable sustained injuries---Record showed that there were material contradictions in the statements of complainant and other prosecution witnesses which were fatal to the prosecution case---Complainant in his evidence deposed that accused persons with Kalashnikovs and repeater started firing upon them, whereas, injured witness had belied such statement by deposing that accused persons with Kalashnikovs and repeater started aerial firing--- Likewise, mashir/eye-witness/ Head Constable contradicted the statement of the complainant by saying that accused persons started aerial firing---Complainant deposed that in such firing one Police Constable got injured whereas, said Police Constable deposed that in the said encounter he became injured by the stones and bricks on his hand---Statement of the complainant was also belied by Senior Medical Officer, who deposed that the injury opined in final Medico-Legal Certificate could be by falling on earth---Injury could have occurred by putting the hand on the vehicle in a hurriedly manner---Injured witness stated that in the said encounter the glass of the police mobile was also damaged---On the other hand, the complainant had not said a single word about the glass of the police mobile being damaged---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.

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

----Ss. 324, 353, 186, 224, 225, 427, 337-F(i), 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S. 103---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief causing damage to the amount of fifty rupees, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses--- Consequential---Accused were charged for making murderous assault on the police party with firing while their companion was arrested, due to which one Police Constable sustained injuries---Record showed that no private person of the locality was associated as mashir and in all the mashirnamas the witnesses were Police Officials---Investigating Officer of the case deposed that there were hundreds of houses, however, he did not take pain to associate any of the inmates of the said houses as mashir in the case---In his cross-examination, Investigating Officer categorically admitted that he did not take any private person as witness of place of incident and did not knock the door of houses---Likewise mashir/Head Constable also admitted in his cross-examination that no private person was associated as mashir by Investigating Officer---Notable that while effecting imaginary arrest of a accused at Police Station, B-Section the Investigating Officer associated as mashir of arrest the two Police Officials, who had accompanied him from Police Station---Very strangely the Investigating Officer did not make any official of Police Station, B-Section, as mashir of arrest of accused---From such admissions, it was apparent that the prosecution had not made any efforts to procure any private person of the locality to act as mashir/witness---Thus, the mandatory requirement as envisaged under S. 103, Cr.P.C., was not fulfilled---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.

The State v. Bashir and others PLD 1997 SC 408; Sarmad Ali v. The State 2019 MLD 670 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel.

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

----S. 103---Search to be made in presence of witnesses---Purpose and scope--- Purpose of associating independent mashirs of the locality is to ensure the transparency of the recovery process---Officials making searches, recoveries and arrests are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted so as to lend credence to such actions, and to restore public confidence.

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

----Ss. 324, 353, 186, 224, 225, 427, 337-F(i), 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief causing damage to the amount of fifty rupees, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-production of daily diary by the police---Consequential---Accused were charged for making murderous assault on the police party with firing while their companion was arrested, due to which one Police Constable sustained injuries---Complainant admitted in his cross-examination that he had kept the arrival entry at Police Station but at that time he did not remember its number---Complainant had also not produced the same on the relevant day before the Court---Neither complainant had produced any entry regarding arrival of SIP of other Police Station nor of Head Constable of another Police Station---Likewise Head Constable in his examination in chief deposed that he kept entry number 8 for leaving his Police Station to other Police Station, however, in his cross-examination he admitted that he had not produced entry No.8 with his deposition---Similarly, while narrating the facts regarding their departure from his Police Station to other Police Station, in connection with arrest of accused, although the Investigating Officer had stated that he kept entry No. 40 at Police Station B-section, however, he had not deposed about making any departure entry, nor had produced the same during the course of his evidence---In like manner, mashir was absolutely silent about making any departure entry nor had he produced the same before the Trial Court---Non-production of roznamcha entry/daily diary by the police, put dent in the prosecution case---In absence of any roznamcha entry, it became suspicious as to whether Investigating Officer or police party, as the case may be, had in fact left the police station to the place of arrest, incident and/or recovery or not---Such facts were fatal to 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 accordingly allowed.

Muhammad Akram v. State 2020 YLR Note 94 rel.

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

----Ss. 324, 353, 186, 224, 225, 427, 337-F(i), 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief causing damage to the amount of fifty rupees, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Discrepancies and lacunas in the prosecution case---Effect---Accused were charged for making murderous assault on the police party with firing while their companion was arrested, due to which one Police Constable sustained injuries---Although the Investigating Officer had prepared mashirnama in respect of damages caused to police vehicles, however, there was no mention of securing any glasses as allegedly the wind screen and side glasses of one vehicle were broken---Although the complainant had made statement that injured Police Constable sustained injury due to firing made by the accused and, if his statement was presumed to be true, then surely blood must have oozed from the thumb of said injured, but the entire prosecution evidence was silent about securing any bloodstained earth from the spot and even the Medical Officer also deposed that no blood was oozing from the alleged injury---Statement of complainant that injured witness sustained injury as a result of firing from the side of accused was also belied by the fact that had injured witness sustained fire arm injury, he must have been sent immediately to the hospital for medical treatment and certificate but the record showed that he was referred to the hospital on the next date which was evident from the deposition of Medical Officer, who categorically stated that the said injured had come to him on 19.12.2021, whereas, the incident had taken place on 18.12.2021---Another witness/Police Constable could not recognize properly the accused present in the Court which was evident from the note of the Trial Court to the effect that the witness had wrongly identified accused present in the Court---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.

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

----Ss. 324, 353, 186, 224, 225, 427, 337-F(i), 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief causing damage to the amount of fifty rupees, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of nineteen days in sending empties to Ballistic Expert---Effect---Accused were charged for making murderous assault on the police party with firing while their companion was arrested, due to which one Police Constable sustained injuries---Record showed that there was delay of about 19 days in sending the allegedly recovered empties to Ballistic Expert as the incident took place on 18.12.2021 whereas, according to Ballistic Expert Report the empties were received in their office on 06.01.2022---If the period was counted from the date of receiving the permission from SSP for sending the empties to Ballistic Expert, as deposed by the Investigating Officer, even then there was delay of 08 days in sending the empties to Ballistic Expert---Such conduct on the part of Investigating Agency could not be appreciated---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.

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

----Ss. 324, 353, 186, 224, 225, 427, 337-F(i), 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief causing damage to the amount of fifty rupees, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Act of terrorism not made out---Accused were charged for making murderous assault on the police party with firing while their companion was arrested, due to which one Police Constable sustained injuries---Present case did not fall within the ambit of S. 7 of Anti-Terrorism Act, 1997, for the simple reason that, as per prosecution's own case, the alleged attack on the police party by the accused persons was totally sudden and not a pre-planned action---Had the accused been in the knowledge that police party would conduct a raid in order to apprehend an accused, by no stretch of imagination, said accused would have stood alone outside the house because in such a case he could have escaped easily and would have gone to another place---Alleged sudden apprehension of said accused at the hands of police itself showed that neither accused or any other person, allegedly assisting him, were in the knowledge of any such raid to be conducted by the police party---In that view of the matter, even according to prosecution version itself, the alleged action on the part of accused persons would not constitute any offence under S. 7 Anti-Terrorism Act, 1997---From the facts of present case, it was clear that there was no intention or pre-planning by the accused to commit the alleged offence---In case the prosecution story was considered to be true, same would not constitute an act of terrorism or terrorist activity under the Anti-Terrorism Act, 1997---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.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

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

----Ss. 324, 353, 186, 224, 225, 427, 337-F(i), 337-H(2), 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, obstructing public servant in discharge of public functions, resistance or obstruction by a person to his lawful apprehension, resistance or obstruction to lawful apprehension of another person, mischief causing damage to the amount of fifty rupees, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Benefit of doubt---Sections 186, 224, 225 & 427, P.P.C, applicability of---Accused were charged for making murderous assault on the police party with firing while their companion was arrested, due to which one Police Constable sustained injuries---Record showed that neither the accused allegedly captured by the police was under lawful custody nor was produced before any Court where he was shown under arrest, therefore, Ss. 186, 224, 225 & 427, P.P.C. would not apply---Prosecution had not adduced any tangible evidence during the trial to prove said offences---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.

(i) 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 Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(j) Criminal trial---

----Benefit of doubt---Scope---If there is a single doubt in the prosecution case then the accused has to be extended benefit of such doubt not as a matter of grace or concession but as a matter of right.

Tariq Pervaiz v. The State 1995 SCMR 1345 and Muhammad Ilyas v. The State 1997 SCMR 25 rel.

Rukhsar Ahmed Junejo for Appellant (in Cr. Spl. A. T. Appeal No.D-81 of 2022).

Nemo present for Appellant (in Cr. Spl. A.T. Jail Appeal No. D-83 of 2022).

Aftab Ahmed Shar, Additional P.G. Sindh for the State.

2024 Y L R 645

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

NIZAMUDDIN and 4 others---Applicants

Versus

MUHAMMAD USMAN and another---Respondents

Revision Application No. 264 of 2019, decided on 30th May, 2022.

(a) Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 7, 8 & 10---Suit for possession, injunction and damages---Evacuee trust property---Scope---Plaintiff filed a suit for possession, occupation charges, injunction and damages---Contention of plaintiff was that his father was tenant of a portion of the suit property and under the settlement scheme applied for transfer of the said property which was allowed upon payment of cost/fee as per assessment of Settlement Department, however due to dispute of Trust Department, the final order could not be issued; that father of the plaintiff allowed respondent No. 1 to live in a room as shelter till the time they made their own arrangements; that respondent No. 1 taking advantage of grace of father of the plaintiff secretly behind the back approached the office of respondent No. 2 and illegally, collusively and fraudulently in 1989 deposited rent from 1977 to 1989 for suit property in order to show that he was tenant of the Trust Department; that respondent No. 2 inspite of fact that it had no jurisdiction, on the application of respondent No. 7, illegally ordered to demolish old constructed room and ordered ejectment of plaintiffs from the premises in question---Plaintiffs filed Civil suit against the said orders, in which Trust Department made a statement that they were not ejecting the plaintiffs from the property in question---Court set aside the impugned orders of ejectment and demolishing the room---Respondent No. 1 shifted from the suit property but did not vacate the same---Suit of the plaintiff was dismissed by the Trial Court---Appellate Court also dismissed the appeal---Validity---Chairman, who was required to convince himself on the facts of the case and detailed records of property in question, passed the impugned order merely on the submission made by the Administrator Evacuee Trust Property where the land in question was declared as "Mandir" (where there was no trace of any such construction) and offered the respondents if they accepted sovereignty of the Trust Department, they would be sold out portions in the said land---Taking benefit of the order, the respondent No. 1 managed a rental agreement in his favour since the Supreme Court in the meanwhile had passed orders that no sale of P.T.D property could be made out---Since the said order had been passed under Ss. 8 & 10 of the Evacuee Trust Properties Management and Disposal Act, 1975, perusal of the said statue in general and its Sections in particular showed that law required that a property to be put in a Trust Pool (under Section 7) before any such order was to be placed, which compliance was missing and whereas superior Courts had held that in order to give a finding (under Section 8) that a property was an Evacuee Trust Property ("ETP"), such determination had to be supported by an overwhelming evidence on record---In the present case, the judgments of both the Courts were given on the basis of the order of Chairman which had been passed without considering any evidence, except by luring respondents that if they accepted sovereignty of the Department, they would be given a booty---Language of the order did not inspire any confidence of the Court---Process of declaring the property an Evacuee Trust Property had not been followed, resultantly such an arbitrary and malice-infested order could not be considered valid---Revision petition was allowed by setting aside impugned judgments and decrees of both the Courts below, in circumstances.

2005 SCMR 907 ref.

2005 SCMR 907 rel.

(b) Administration of justice---

----When a statute provided powers to an authority, those powers must not be exercised arbitrarily, but strictly in accordance with law following due process.

Shamsuddin Memon for Applicants.

Ghulam Sarwar Qureshi, for Respondent No. 1.

Atta Hussain Gaddi Pathan for Respondent No.2 along with Rasheed Ahmed, Deputy Administrator Evacuee Trust Property, Hyderabad.

2024 Y L R 657

[Sindh (Hyderabad Bench)]

Before Muhammad Saleem Jessar and Omar Sial, JJ

EVACUEE TRUST PROPERTY BOARD, GOVERNMENT OF PAKISTAN through Assistant Administrator---Petitioner

Versus

WAHABUDDIN and others---Respondents

C.Ps. Nos. D-263, D-264 and D-265 of 2006, decided on 17th March, 2022.

Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)---

----Ss. 6, 7, 8 & 10(1)(b)---Disputed property not owned by a charitable trust---PTD was issued in favour of private respondents as they were bona fide claimants and their claims could not be cancelled as the same were issued after completion of all codal formalities---Chairman, Evacuee Trust Properties Board, declared the properties of private respondents as evacuee trust property and cancelled their PTDs issued in favour of private respondents---Such orders were assailed before the Secretary, Ministry of Minorities who set-aside the said orders---Evacuee Trust Properties Board (the Board) claimed that property in dispute was reserved for Punchayat (for amenity purpose of Hindu community), hence was a trust property and was not transferable---Legality---In order to declare an evacuee property as an evacuee trust property, it must be shown that the property was attached to a charitable, religious or educational trust or institution---Punchayat might not fall in any of the said category---Revisional Authority held that the disputed property was not owned by a charitable trust and the findings of the Revisional Authority were based on cogent evidence, which had not been rebutted by the petitioners---In the present petitions, neither the word "charitable" was mentioned anywhere in the Property Register Card nor was there any specific instrument which showed that the property was ever attached with charitable, religious or educational trust or institution, as envisaged under S. 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975---Accordingly, it could not be said simply because the owner of the property in dispute was Punchayat of Jhagran or Jhagam, therefore, the property was for charitable purpose---No mala fide was involved in the issuance of the PTDs, therefore, the protection provided under S. 10(1)(b) of the Act was attracted in the case in hand---Petitions were accordingly dismissed.

Miraj Din and 56 others v. Evacuee Trust Property Board, Lahore and others PLD 2004 SC 430; Muhammad Ilyas and 11 others Additional Deputy Commissioner-I Hyderabad and 8 others 2005 CLC 317; Chairman Evacuee Trust Property Board and another v. Mst. Rubina Ibad and others 2017 YLR 2125; Secretary to the Government of Pakistan, Minorities affairs Division, Islamabad and 2 others v. Mst. Shah Jehan Bano and others 2005 SCMR 907; Deputy Administrator, Evacuee Trust Property, Karachi and others v. Abdul Sattar and another 2000 SCMR 1929 and Messrs Mustafa Impex, Karachi and others v. The Government of Pakistan through Secretary Finance, Islamabad and others PLD 2016 SC 808 ref.

Fayyazuddin Khan v. Federal Government of Pakistan and others 2009 SCMR 362 and Mst. Rehmat Bibi and others v. Federal Secretary, Government of Pakistan, Ministry of Minorities and others 2020 MLD 440 rel.

Muhammad Saleem Hashmi Qureshi for Petitioner (in all Captioned Petitions).

Shamsuddin Memon for Private Respondents (in all Petitions).

Muhammad Humayoon Khan, Deputy Attorney General for Pakistan and Rafique Ahmed Dahri, Assistant A.G. Sindh.

2024 Y L R 670

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD NAWAZ---Appellant

Versus

The STATE and another---Respondents

Spl. Criminal Anti-Terrorism Jail Appeal No. 26 and Confirmation Case No. 5 of 2021, decided on 8th September, 2022.

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

----Ss. 302(b), 324, 353, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---Delay of eleven hours in lodging the FIR explained satisfactorily---Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died; police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---Record showed that the FIR was lodged after a delay of eleven hours---Reason for the delay in lodging the FIR was that the complainant had to secure the site, take the injured to hospital which included the accused and his accomplice who later died of his injuries and the deceased who died after he was transferred to the hospital from the Medical Center on the same day, thus, the complainant's priority was to save life---Once that was done he returned to the Police Station and recorded his S.154, Cr.P.C statement which later became the FIR---Therefore, the delay in lodging the FIR was fully explained---Prosecution had not been benefited by the delay in lodging the FIR and the accused had not been prejudiced as they were both arrested on the spot in injured condition so there was no time for the police to cook up a false case against them---Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate him and as such the delay in lodging the F.I.R was not fatal to the prosecution case as the delay had been explained--- Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to some extenuating circumstances, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

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

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

----Ss. 302(b), 324, 353, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---Ocular account supported by medical evidence---Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died; police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---Complainant/eye-witness was one of the Police Guard placed inside the bank at the time when the incident occurred---Said eye-witness was not a chance witness and had no ill will or enmity with the accused and had no reason to implicate him in a false case---Evidence of complainant was given in a natural manner and he was not dented during cross-examination---Moreover, it was a day light incident where the accused and his accomplice were both arrested on the spot in injured condition by firearm as confirmed by Medico-Legal Officer in his medical evidence and as such there was no reason to doubt his evidence which was found to be reliable, trust worthy and confidence inspiring---Medical evidence and medical reports fully supported the eye-witness/prosecution evidence and confirmed that the deceased died from a gunshot wound---Witness received a gunshot wound to his abdomen and both the accused received fire arm injuries on account of the incident---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to some extenuating circumstances, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

Muhammad Sajid alias Chota Bona and others v. The State 2022 PCr.LJ 505; Master Juman Buriro v. The State 2022 YLR 299; Shahzaib v. The State 2022 MLD 950; Saeedullah v. Asfandiyar and another 2017 PCr.LJ Note 5; Dadullah and another v. The State 2015 SCMR 856; Safdar Ali and 2 others

v. The State 1996 SCMR 1965; Aijaz Nawaz alias Baba v. The State 2019 PCr.LJ 1775; Noor Muhammad v. The State 1999 SCMR 2722; Muhammad Ehsan v. The State 2006 SCMR 1857; Amrood Khan v. The State 2002 SCMR 1568 and Majhi v. The State 1970 SCMR 331 ref.

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

----Ss. 302(b), 324, 353, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---Presence of the accused at the spot proved---Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died; police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---Significantly during cross-examination of the eye-witness, the accused admitted his presence at the crime scene by suggesting that he was hit by firearm whilst sitting outside the bank for which he was lulling around without explanation as he was not even an account holder at that bank---Furthermore, defence contended that accused did not know his accomplice who was shot as well at the crime scene and later died of his injuries but suggested in cross-examination that the deceased accused had a bank account at the bank---If accused did not know the deceased accused it would not make any sense for him to put that suggestion to the eye-witness as it appeared that he was trying to establish that accomplice was present as a customer of the bank and not there to rob it---In any event the defence version was completely belied by the CCTV in the USB---Thus, the evidence of the eye-witness was found to be reliable, trustworthy and confidence inspiring and there was no issue of mistaken identity as the accused was arrested on the spot in an injured condition in day light hours and he could be convicted on the evidence of that eye-witness alone though it would be of assistance by way of caution if there was some corroborative/supportive evidence---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to some extenuating circumstances, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

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, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---CCTV on file extablishing the prosecution case---Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died; police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---USB evidence of the CCTV fully supported the prosecution case---Accused and his co-accused came outside the bank on their motor bike, dismounted the same, withdrew firearms and tried to enter the bank where they made fire and they were chased away from the entrance by fire shots of witness which led to them falling down and becoming injured---Said fact totally belied the claim of accused of being an innocent passerby---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to some extenuating circumstances, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

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

----Ss. 302(b), 324, 353, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---Recovery of pistol from the possession of accused---Reliance---Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died, police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---Record showed that an unlicensed pistol was recovered from the accused after his arrest on the spot in an injured condition---Moreover, the empties recovered at the scene were matched with the pistol recovered from the accused, and it led to a positive Forensic Science Laboratory Report---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to some extenuating circumstances, 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), 324, 353, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---Police witnesses, evidence of---Reliance---Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died, police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---Police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the case for instance by planting a pistol on him---Evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to some extenuating circumstances, death sentence was converted into imprisonment for life---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(b), 324, 353, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---Minor contra-dictions--- Inconsequential--- Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died, police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---Record showed that all the witnesses were consistent in their evidence---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---Evidence of the witnesses provided a believable corroborated unbroken chain of events---Circumstances established that the prosecution had proved its case against the accused beyond shadow of doubt, however, due to some extenuating circumstances, death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 324, 353, 393 & 427---Sindh Arms Act (V of 2013), S.23(1)(a)---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, mischief causing damage to the amount of fifty rupees, possessing illicit weapon, act of terrorism---Appreciation of evidence---No case of terrorism made out---Sentence, reduction in---Accused while committing robbery made firing upon guards and police, due to which one guard was injured and SIP died, police also made firing in retaliation, due to which two culprits sustained injuries and later on one died---Based on the particular facts and circumstances of the case, it appeared that the intent of the accused was to rob the bank which escalated to murder when the guards put up resistance which had no object, intent, purpose or design to create terror and as such the accused was acquitted of all offences under the Anti-Terrorism Act, 1997---With regard to sentencing, it was noted that it could not be conclusively proved as to whether it was the accused or his deceased accomplice who fired the fatal shot in respect of the other deceased, which was sufficient ground for reducing the sentence from death sentence to one of life imprisonment---Thus, the death sentence was converted into imprisonment for life---Appeal was dismissed with said modification in sentence.

S. Shahid Mushtaq for Appellant.

Muhammad Iqbal Awan, Additional Prosecutor General Sindh for Respondents.

2024 Y L R 693

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

PARAS ALI GADANI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-238 of 2019, decided on 3rd June, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of twelve hours in lodging the FIR explained---Accused were charged for committing murder of the brother of the complainant---Incident took place on 24-11-2011 at 09:00 pm and the FIR was registered on the next day i.e. 25-11-2011 at 09:00 am---Such delay in registration of FIR had properly been explained by the complainant---According to the complainant, he firstly took his injured brother to hospital thereafter he was referred to another hospital where he expired---After registration of the FIR, the Investigating Officer proceeded toward the place of the incident on the same day i.e. 25-11-2011 and secured two empties of 30-bore and blood stained earth from the place of wardat and sent the same for Chemical Report---Injured was examined and treated on the same day at 09:20 am by Medical Officer and found firearm injury on his person---All the said facts excluded the possibility of consultation or deliberation on the part of the prosecution---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused by producing reliable, trustworthy, and confidence inspiring oral evidence as well as medical evidence---Appeal against conviction was dismissed accordingly.

Zaffar v. The State 2021 YLR 1918; Mansab Ali v. The State 2019 SCMR 1306; Najaf Ali Shah v. The State 2021 SCMR 736; Abdul Jabbar and another v. The State 2019 SCMR 129; Muhammad Rashid v. The State 2022 YLR 119; Mazhar Ellahi v. The State 2020 SCMR 586; Bakht Munir v. The State and another 2020 SCMR 588; The State v. Noor Ahmed alias Thola and 3 others 1991 PCr.LJ 2007; Sultan Lanjwani Jat v. The State 2021 YLR 2171; Hazar Khan and 3 others v. The State 2020 YLR Note 65 and Muhammad Riaz v. Muhammad Zaman and another PLD 2005 SC 484 ref.

Farman Ali and another v. The State and another 2020 SCMR 597 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for committing murder of the brother of the complainant---Ocular account of the incident was furnished by two eye-witnesses including complainant---Complainant stated that both the accused were armed with iron rods and were causing blows with such rods on the head of his deceased brother---When they reached there both the accused took out their pistols and fired at his brother and due to receipt of such injuries, he raised cries and fell down---Injured was bleeding and the accused left by extending them threats that if they did not leave the place, they would loose more---Complainant took his brother to civil hospital and thereafter to another hospital, however, he succumbed to injuries and died on 07-12-2011 in the hospital---Eye-witness had also deposed in the same line as deposed by the complainant---Both witnesses were cross-examined at length but no major contra-dictions were found in their evidence, however, some minor contractions were available, which were natural---From the perusal of the medical evidence, it was established that the ocular evidence was in line with the medical evidence---Version given by the complainant in the FIR and at the time of recording his evidence before the trial court was fully supported by the medical evidence---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused by producing reliable, trustworthy, and confidence inspiring oral evidence as well as medical evidence---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Appreciation of evidence--- Related witnesses, evidence of---Reliance---Accused were charged for committing murder of the brother of the complainant---Though the witnesses were close relatives of the complainant and the deceased but they had no strong motive to falsely implicate an innocent person in a murder case while substituting the actual culprit---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 criterion 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 beyond a reasonable doubt against the accused by producing reliable, trustworthy, and confidence inspiring oral evidence as well as medical evidence---Appeal against conviction was dismissed accordingly.

Lal Khan v. State 2006 SCMR 1846 rel.

(d) Criminal trial---

----Ocular account and medical evidence---Conflict---Scope---In each and every case doctor's evidence must have preference over direct evidence---If witnesses have seen the incident and have implicated the accused and their statements have been accepted by Court, then any conflict with evidence of expert does not detract the evidentiary value of the eye-witnesses.

Muhammad Younas and another v. The State 1990 SCMR 1272 rel.

(e) Criminal trial---

----Related witnesses evidence of---Reliance---Merely on the ground of inter se relationship the statement of a witness cannot be brushed aside---Even a friendship or relationship with the deceased will not be sufficient to discredit a witness particularly when there is no motive to falsely involve the accused.

Zulfiqar Ahmed and another v. The State 2011 SCMR 492 and Iqbal alias Bala v. The State 1994 SCMR 1 rel.

(f) Criminal trial---

----Minor contradictions and discre-pancies in the evidence---Scope---If the prosecution establishes its case beyond a reasonable doubt then even if there may be some minor contradictions which are always available in each and every case, the same may be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Rukhsar Ahmed Junejo for Appellant.

Shafi Muhammad Mahar, D.P.G. for the State.

2024 Y L R 713

[Sindh]

Before Aftab Ahmed Gorar and Adnan-ul-Karim Memon, JJ

Syed MANSOOB AHMED BUKHARI and 28 others---Petitioners

Versus

FEDERATION OF PAKISTAN through Secretary Aviation and 4 others-- Respondents

Constitutional Petition No. D-580 of 2020, decided on 23rd February, 2022.

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

----Ss. 3 & 4---Constitution of Pakistan, Art. 204---Contempt of Court---Show-cause notice---Petitioner was allowed orderly allowance by the Court but the administrative department did not grant such benefit to the petitioner---Validity---Record reflected that the Court vide order dated 25.08.2021 referred the matter of the petitioners to the competent authority of respondents on the issue of inclusion of Orderly Allowance in pensionable emoluments of the petitioners under the law---Compliance report dated 24.01.2022 explicitly showed that the respondent-department in its 189th meeting decided that the date of applicability of the Orderly Allowance in the pension of retired Additional Directors (EG-07) shall remain the same and shall be without prejudice to the complete review of pay and allowances of Civil Aviation Authority's employees---Prima facie, the said findings of the respondent-department negated the basic spirit of the order dated 25.08.2021 passed by the Court, which could not be construed to be substantial compliance of the said order---Record did not reflect that respondent-department had obtained an interim order from the Supreme Court of Pakistan, restraining the Court not to implement the order passed by the Court---When this was the position of the case, the compliance report dated 24.01.2022 submitted by the respondent-department was to be rejected, warranting interference of the Court to take action against the alleged contemnors under Art. 204 of the Constitution---Show-Cause Notice was issued to the Contemnors for further proceedings.

Amir Saleem for Petitioners.

Khalid Mehmood Siddiqui for Respondents Nos. 2 to 5.

2024 Y L R 726

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

NIAZ AHMED MIRANI---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Appeals Nos.D-46 to D-49 and Special Anti-Terrorism Jail Appeal No. D-50 of 2016, decided on 16th October, 2022.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common intention---Appreciation of evidence---Benefit of doubt---Material contradictions in the statements of witnesses---Effect---Accused was charged for maltreating the servant of complainant, forcibly taking away the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---In the present case, it appeared that there were material contradictions in the evidence of prosecution witnesses which were fatal to the prosecution and created doubts in the prosecution case---Witness in cross-examination deposed that detenu was tied in a room of hospital---Said fact was belied by the detenu himself in his cross-examination wherein he admitted that he was confined in the quarter of S.H.O. and was sitting on a cot and not tied but door was closed---In their statements the said witnesses also contradicted each other, inasmuch as, according to peon of complainant / witness, detenu was confined in a room of hospital, whereas detenu deposed that he was confined in the quarter of S.H.O.---According to complainant of other FIR, in his presence the accused along with others took away detenu by dragging and maltreating him, whereas detenu had belied such statement by admitting in his cross-examination that said complainant was not available at his house when he was apprehended---Complainant in the FIR as well as in his evidence had categorically stated that detenu was kidnapped by accused which statement was belied by detenu himself while he made admission in his cross-examination to the effect that he was arrested by the Incharge Police Post who was Head Constable---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common intention---Appreciation of evidence---Benefit of doubt---Admissions made by witness/detenu negating factum of his abduction---Accused was charged for maltreating with the servant of complainant, forcibly taking away the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---Record showed that alleged detenu had deposed in clear terms that he was not abducted but was arrested and that he was not arrested by accused but by one Head Constable who was Incharge of the Police Post---Detenu in his cross-examination had admitted that his relatives used to meet with him at police post and he was confined in the quarter of S.H.O. and was sitting on a cot and not tied, but door was closed---Complainant of other FIR was not available at his house when he was apprehended---From such admissions of the detenu, it was clear that he had not said a single word about his abduction by the accused---Not understandable that in case he was abducted and was allegedly kept in wrongful confinement by the accused, then what was the point in allowing his relatives to meet him---Perusal of the contents of S. 365, P.P.C. showed that one of the important ingredients for constituting offence under this section was that alleged abductee or kidnapee was put in wrongful confinement secretly---Needless to emphasize that a place where any other person had access to the alleged abductee, could not be termed as secret place---In that view of the matter, the ingredients of S. 365 were lacking in the instant case because admittedly the relatives of alleged abductee used to meet him in said quarter---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common inten-tion---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused was charged for maltreating with the servant of complainant, forcibly taking the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---Investigating Officer, in his cross-examination deposed that he had not recorded the statements of the officials of hospital staff from where detenu was recovered from a quarter of same hospital---Investigating Officer had not recorded the statements of two servants of accused who were found guarding the alleged detenu, though same fact was mentioned in the FIR lodged by Judicial Magistrate---Investigating Officer had not recorded statement of taxi driver in which Judicial Magistrate had conducted the raid and also not recorded the statement of any Duty Officer who was day incharge on the day of incident---Investigating Officer had not recorded the statement of shop keepers situated near the Police Station, though there were shops situated adjacent to the walls of Police Station---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common intention---Appreciation of evidence---Benefit of doubt---Non-examination of material witnesses---Effect---Accused was charged for maltreating with the servant of complainant, forcibly taking away the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---Record showed that the Investigating Officer did not record the statements of the persons whose evidence was very material for deciding the fate of the case particularly that of the two servants of accused who were found guarding over alleged detenu---Said fact was injurious to the prosecution case as despite availability of material witnesses, non-examination of such witnesses in the case had given inference that in case such witnesses had been examined, they would have deposed against the prosecution as envisaged under Art. 129(g) of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

Bashir Ahmed alias Manu v. The State 1996 SCMR 308 and Mohammad Shafi v. Tahirur Rehman 1972 SCMR 144 rel.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime empties from the spot---Doubtful---Accused was charged for maltreating with the servant of complainant, forcibly taking away the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---In the evidence of Judicial Magistrate, it had come on record that at the time when the Judicial Magistrate was making entries in the daily diary, accused had come at Police Station and started firing and the firing continued for 10/15 minutes---Surely, if a person made continuous firing for 10/15 minutes, then he must have fired hundreds of shots, as such hundreds of empties should have been found and secured from there but the evidence of Investigating Officer showed that only 25 empties were secured from there---Said fact created doubts in the prosecution case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Criminal Procedure Code (V of 1898), S. 103---Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common intention---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses at the time of arrest of accused---Consequential---Accused was charged for maltreating with the servant of complainant, forcibly taking away the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---In the present case, it had come in the evidence that accused was arrested by witness/DSP from a place near Link Road in presence of mashir/Police Constables---Both the mashirs were Police Officials and no explanation had been offered by the prosecution as to why private persons of the locality were not associated as mashirs of arrest---Evidence of S.H.O. as well as mashir was totally silent about the fact as to whether the Investigating Officer made any effort to associate any private person of the locality as mashir of arrest or not---In that view of the matter, it was clear that the mandatory requirement as envisaged under S. 103, Cr.P.C., was not fulfilled---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

State v. Bashir and others PLD 1997 SC 408; Sarmad Ali v. The State 2019 MLD 670 and Yameen Kumhar v. The State PLD 1990 Kar. 275 rel.

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

----S. 103---Search to be made in presence of witnesses---Purpose and object--- Purpose of associating independent mashirs of the locality is to ensure the transparency of the recovery process---Needless to emphasize that in view of provisions of S. 103, Cr.P.C., the officials making searches, recoveries and arrests, are reasonably required to associate private persons, more particularly in those cases in which presence of private persons is admitted, so as to lend credence to such actions, and to restore public confidence---Said aspect of the matter must not be lost sight of indiscriminately and without exception---Only cursory efforts are not enough merely in order to fulfill casual formality, rather serious and genuine attempts should be made to associate private mashirs of the locality.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Criminal Procedure Code (V of 1898), S. 103---Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common intention---Appreciation of evidence---Benefit of doubt---Delay of more than five months in sending the crime weapon for analysis--- Consequential--- Accused was charged for maltreating with the servant of complainant, forcibly taking away the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---Record showed that there was a long delay of more than five months in sending the crime weapon for forensics allegedly recovered from the accused which put severe dent in the prosecution case and made the recovery itself redundant---From perusal of recovery it seemed that the Kalashnikov allegedly used by the accused in making firing was recovered on 27.4.2012 whereas, as per Ballistic Expert's Report, the same was received in their office on 19.10.2012 i.e. after a delay of five months and 22 days---No explanation had come forward from the side of the prosecution for such an inordinate delay---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

Sarmad Ali v. The State 2019 MLD 670; Samandar alias Qurban and others v. The State 2017 MLD 539; Yaqoob Shah v. The State 1995 SCMR 1293 and Ghulam Hussain and 2 others v. State 1998 PCr.LJ 779 rel.

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

----Ss. 365, 395, 452, 353, 220, 506-2, 504, 337-H(2), 337-A(i), 427, 342 & 34---Criminal Procedure Code (V of 1898), S. 103---Abduction for ransom, dacoity, house trespass, assault or criminal force to deter public servant from discharge of his duty, commitment for trial or confinement by person having authority who knows that he is acting contrary to law, criminal intimidation, intentional insult with intent to provoke breach of peace, hurt by rash or negligent act, shajjah-i-khafifah, mischief causing damage to the amount of fifty rupees, wrongful confinement, common intention---Appreciation of evidence---Benefit of doubt---Act of terrorism, not made out of---Accused was charged for maltreating with the servant of complainant, forcibly taking away the detenu, abusing the complainant, extending threats of dire consequences and also firing just to spread fear, terror and insecurity in general public, when the complainant went to police station for releasing the detenu---According to the proseution's own case, as soon as the Judicial Magistrate arrived at the place where the detenu was allegedly confined, the accused on seeing the Judicial Magistrate fled away by jumping over the wall---From that, it was clear that the accused had no prior information and knowledge that any raid was to be conducted by the Judicial Magistrate---In that view of the matter, it could not be said that the accused having prior knowledge of the raid, had intentionally preplanned to spread panic and terror in the vicinity which was an essential ingredient for constituting an offence under Section 7 of the Anti-Terrorism Act, 1997---Hence, the alleged firing made by the accused was totally sudden and not a preplanned action on his part---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeals against conviction was accordingly allowed.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

(j) 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 Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(k) Criminal trial---

----Benefit of doubt---Principle---Accused cannot be deprived of benefit of doubt merely because there is only one circumstance which creats doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Mehfooz Ahmed Awan for Appellant (in Crl. Spl. A.T. Appeals Nos.D-46 to D-49 of 2016).

Appellant in person (in Crl. Spl. A.T. Jail Appeal No. D-50 of 2016).

Aftab Ahmed Shar, Additional P.G. Sindh for the State.

2024 Y L R 752

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

MANJHI KHAN and another---Applicants

Versus

NOOR ALAM through Legal heirs and others---Respondents

Civil Revision Application No. S-53 of 2016, decided on 13th May, 2022.

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

----S. 54---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell immoveable property---Agreement to sell not proved---Plaintiff filed a suit for specific performance on the basis of agreement to sell immovable property by the predecessor-in-interest of defendants, whereas the defendants filed a suit for cancellation of that agreement to sell---Suit of the plaintiff was dismissed and suit filed by the defendants was decreed---Appeal was filed by the plaintiff but same was dismissed---Validity---Record showed that applicant (plaintiff) during his cross-examination stated that on the very same date the Notary Public attested the agreement to sale, from the office of the Stamp Vendor they proceeded towards Notary Public on a Tanga (horse carriage) and at that time Stamp Vendor was with them---Whereas witness of applicant stated in his cross-examination that they never proceeded to any other office from the office of stamp vendor---Sale agreement in question was doubtful after scanning evidence of the defendant side who produced the documentary evidence to the effect that on the day of sale agreement original owner was admitted to a hospital and a discharge card was exhibited in the evidence which had not been challenged---From the evidence it was very much clear that the applicant managed a sale agreement in collusion with his witness---Record was silent as to why the alleged sale agreement was executed at place "S" instead of "G" as the vendee and attesting witnesses were residents of place "G" and such facility of stamp paper and the Notary public was available at "G" as had been admitted by the parties---Witness of applicant had also not supported the case of applicants regarding scribing of the alleged sale agreement; besides the signature of deceased did not match with his signatures as had been observed by the appellate Court---Revision application was accordingly dismissed.

Choudhry Shahid Hussain Rajput for Applicants.

Abdus Salam Arain for Respondents.

2024 Y L R 787

[Sindh]

Before Adnan-ul-Karim Memon, J

SHAHJAHAN---Applicant

Versus

The STATE through Prosecutor General and 2 others---Respondents

Criminal Transfer Application No. 83 of 2023, decided on 22nd November, 2023.

Criminal Procedure Code (V of 1898)---

----S.526---Transfer of a criminal case---Impartiality or bias of a judge---Judicial proprietary--- Scope--- Ground of the applicant/accused was that he had lost faith in the presiding officer of the Trial Court on the premise that during the hearing, he (the judge) expressed adverse inference against him (applicant) and his counsel---Validity---The court, primarily, should practice without discrimination and bias---Justice should be given in such manner that a clear image of the judiciary has to be maintained in the minds of litigants---To have good faith in the court, the court should maintain high moral standards among the members of the judiciary under the Criminal Procedure Code, 1898---Justice can be achieved only when the court deals in the presence of both parties---Court has the power to move cases from one court to another, but the rights of the parties can not be curtailed, controlled, or interfered with subject to exceptions provided under the law---Transfer of a matter from one court to another court can only be granted in exceptional circumstances where it was shown that the same would be in the interest of justice---Ground raised by the applicant, being based on certain reservations, was tenable---Applicant intended to seek a fair trial in the criminal case pending adjudication which would be only possible if he reposed confidence in the court---It would have been appropriate for the Trial Court not to express its view so that the parties might have confidence, however, without prejudice to instance of the court, the judicial proprietary demanded that the case-in-question needed to be transferred from the present Additional Sessions Judge to the concerned Sessions Judge who, for the smooth trial of the applicant and swift disposal of case-in-question, would ensure that the trial be fair in all respects within reasonable time---Transfer application filed by the accused was disposed of accordingly.

Government of NWFP and another v. Dr. Hussain Ahmed Haroon and others 2003 SCMR 104 and All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1 ref.

Zahid Hussain Soomro for the Applicant.

2024 Y L R 811

[Sindh]

Before Nazar Akbar and Zulfiqar Ahmad Khan, JJ

SOHAIL AHMED SIDDIQUI---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 82, 83 and Confirmation Case No. 3 of 2019, decided on 1st December, 2020.\

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

----Ss. 302(b), 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---Benefit of doubt---Recovery of crime empties from the spot---Inconsequential---Accused was charged that he along with his co-accused made firing upon complainant party due to which three persons died and complainant along with one other person became injured---Record showed that police recovered 10 empties of 9MM pistol from the place of incident, sealed the same at the spot, read over the contents of same to Mashirs, who after treating the same as correct, put their signatures on it---Complainant/mashir of said Mashirnama stated differently and belied his presence at the relevant time by deposing that after two years of the incident, he was called at Police Station where his signatures were obtained on Mushirnama of inspection of place of incident at police station---Complainant also did not recognize his signatures on the sealed parcel of case property viz. empties and stated that the empties were not sealed in his presence---Such recovery had no legal sanctity in the eyes of law and could not be relied upon, which created doubt about the prosecution version---Circumstances established that the prosecution had failed to bring home the guilt to the accused---Appeal against conviction was allowed accordingly.

Mushtaq v. The State PLD 2008 SCMR 1; Asad Rahmad v. The State 2019 SCMR 1156; Sajjan Solangi v. The State 2019 SCMR 872; Hayatullah v. The State 2018 SCMR 2092; Nasir Javaid v. The State 2016 SCMR 1144; Tariq Pervez v. The State 1995 SCMR 1345 and Abdul Jabbar and another v. The State 2019 SCMR 129 ref.

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

----Ss. 302(b), 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---Benefit of doubt---Memo of inspection of the place of occurrence---Doubtful---Accused was charged that he along with his co-accused made firing upon complainant party due to which three persons died and complainant along with one other person became injured---Record showed that memo of inspection of the place of occurrence was prepared at 2300 hours on 03.12.2013, statedly in presence of complainant---Admittedly the complainant at the relevant time was admitted in injured condition at hospital, at 2140 hours his statement under S.154, Cr.P.C., was recorded by SIP, which was incorporated in the FIR by him at 2210 hours thus how was it possible that after 50 minutes, the complainant who was under treatment at hospital was be able to accompany the police and act as mashir to the memo of inspection of the place of incident---Inspection of place of incident was carried out by SIP "S" whereas it was signed by SIP "I"---Such memo apparently appeared to be a bogus, concocted and fabricated document, as such, it carried no legal value in the eyes of law and could not be relied upon---Preparation of such type of memo was an example of mala fide on the part of Investigating Officer who conducted defective investigation of a heinous offence for the reasons best known to him---Circumstances established that the prosecution had failed to bring home the guilt to the accused---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 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---Benefit of doubt---Recovery of weapon of offence on the disclosure of accused--- Doubtful--- Accused was charged that he along with his co-accused made firing upon complainant party due to which three persons died and complainant along with one other person became injured---Record showed that accused led the police party at the pointed place and voluntarily went and took out one 9MM pistol, loaded with three live rounds, beneath the bricks established under the tree of nursery of a college and handed over the same to Investigating Officer in his presence and in presence of Head Constable---Recovery witness in his cross-examination had stated that nursery was in open space and there was no boundary wall---Owner of the nursery was not available at the time of recovery---Chowkidar residing at the nursery along with his family was also not present---Said witness admitted that no effort was made by the Investigating Officer to associate any private witness to act as mashir of recovery---Accused was confined for about eight days before recovery of 9MM pistol but he did not disclose about commission of offence and concealment of 9MM pistol---Said witness admitted that recovered 9MM pistol was clear and in better condition---Admittedly, the incident took place on 03.12.2013 whereas the pistol was allegedly recovered on 22.04.2015---How was it possible that after lapse of 16 months and 19 days the pistol allegedly concealed underneath the bricks at an open space was recovered in a clear, better and operational condition---Admittedly, the place of alleged recovery of crime weapon was an open place, everyone had access to it, how was it possible that the said weapon remained concealed for a long period of 16 months 19 days at such a place, which also in a clean, better and operational condition---Circumstances established that the prosecution had failed to bring home the guilt to the accused---Appeal against conviction was allowed accordingly.

Abdul Mujeeb v. The State 1998 PCr.LJ 1381 rel.

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

----Ss. 302(b), 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---Benefit of doubt---Plea taken by accused while recording statement under S. 342, Cr.P.C.---Accused was charged that he along with his co-accused made firing upon complainant party due to which three persons died and complainant along with one other person became injured---Accused in his 342, Cr.P.C., had taken plea that he was picked by Rangers on 22.12.2014 at 12:00 noon from his wife's godown on the complaint of Unit In-charge of a religious organization, when he was collecting monthly rent, who wanted to illegally dispossess accused's wife of her property---On 09.01.2015 Rangers obtained his remand for three months from the Court; and after 105 days he came to know that he had been implicated in the present case; and after two years of lodging of FIR he was again arrested and implicated in false case under S. 23(1)(a) of Sindh Arms Act, 2013---Investigating Officer had deposed that he arrested the accused from Central Prison, who was in the custody of Rangers and was detained for 90 days---Perusal of Entry record reflected that there was no mention of information received by Investigating Officer from Rangers personnel regarding involvement of accused in the present case---Nothing had been placed on record to show that the accused was in the custody of Rangers personnel for 90 days, and no such remand by Rangers had been produced at trial--- Circumstances established that the prosecution had failed to bring home the guilt to the accused---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 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---Benefit of doubt---Delay of five days in sending the weapon of offence for anlaysis---Consequential---Accused was charged that he along with his co-accused made firing upon complainant party due to which three persons died and complainant along with one other person became injured---Alleged recovery of crime weapon was effected on 22.04.2015, the same was delivered to Forensic Science Laboratory on 27.04.2015---Delay in sending the crime weapon to Forensic Science Laboratory for report had not been explained by the prosecution---Apart from that, safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission---Circumstances established that the prosecution had failed to bring home the guilt to the accused---Appeal against conviction was allowed accordingly.

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

(f) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230 and Muhammad Zaman v. The State 2014 SCMR 749 rel.

Aamir Mansoob Qureshi and Mamoon A. K. Sherwani for Appellant.

Ms. Rubina Qadir, Deputy Prosecutor General Sindh for the State.

2024 Y L R 830

[Sindh (Sukkur Bench)]

Before Muhammad Faisal Kamal Alam, J

MASEETULLAH through Attorney---Appellant

Versus

NAIMATULLAH and 5 others---Respondents

First Civil Appeal No. S-07 of 1998, decided on 17th January, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42, 54 & 55---Suit for declaration, mandatory and permanent injunction---Trial Court dismissed the suit of the plaintiff/petitioner which judgment was upheld by the Appellate Court---Claim of the appellant was that the respondent No. 1 got transferred his 04 acres land in his favour on the basis of fake sale transaction and further transferred the same in favour of respondent No.2 fraudulently---Validity---Fact of the matter was that there was a period of three years between the two disputed transactions; firstly, in favour of respondent No.1 vide Entry No. 144 dated 17.08.1991 and subsequently in favour of respondent No.2 Vide Mutation Entry No.245 dated 12.05.1994---No supporting evidence was led by respondents to show that after recording of first mutation entry in favour of respondent No.1, he was handed over possession of the disputed land of four acres---Record showed that possession of respondent No.2 was recorded in a Report of Commissioner dated 10.12.1997, which was prepared after the site inspection was done on the orders of High Court in an earlier round of litigation between the parties---Said report had been carefully considered and though it did state that the possession rested with respondent, but at the same time it was also mentioned that it was not known when and how he obtained it---No objection to such Commissioner's Report was preferred by either party---Evidence of the appellant, that possession was forcefully taken by respondent No.2 before the said inspection, could not be falsified by the respondents in her cross-examination---Concerned Tapedar in his evidence had stated that since the year 1994 respondent No.2 was paying the revenue dues, but to a specific question he showed his ignorance that prior to year 1994 he had no knowledge about the payment of revenue dues---Logical conclusion was that if the respondent No.1 had purchased the disputed land through due process and was given a valid possession of the same, then he would have started paying the dues after obtaining cultivating possession of the disputed land, but since the transaction itself was bogus, thus there was no record that respondent No.1 was paying cess/dues after 1991; because no lawful possession was handed over to respondents and the same was obtained through illegal means by both the respondents 1 and 2---Conclusion was that the respondents had failed to prove that the disputed land was sold/ transferred by the appellant to respondent No.1 and subsequently by the latter to respondent No.2, after following a due process---Appeal was allowed accordingly.

Muhammad Azam and 3 others v. Mst. Ayesha 2004 YLR 563; Jan Muhammad through Mubarik Ali and others v. Nazir Ahmad and others 2004 SCMR 612; Mst. Zareena and others v. Jumat Khan and others 2012 MLD 360; Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356; Muhammad Younus Khan and 12 others v. Government of N.-W.F.P. through Secretary, Forest and Agriculture, Peshawar and others 1993 SCMR 618; Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another PLD 1970 SC 180; Hawaldar Sawar Khan through General Attorney v. Province of Sindh, Revenue Department through Deputy Commissioner, Shikarpur and 5 others 1998 CLC 382; Arbab Jamshed Ahmad and another v. Ghazan Khan and others 1995 CLC 695; Jial v. Sajjan PLD 1985 Rev. 59; Muhammad Saleh v. Deputy Commissioner, Tharparkar at Mirpurkhas and others PLD 1963 (W.P.) Karachi 613 ref.

Nadir Ali Chachar for Appellant.

Lachamndas G. Rajput and Abdul Mujeeb Shaikh for Respondents Nos. 1 and 2.

Ahmed Ali Shahan, A.A.G. for Respondent No. 6.

2024 Y L R 881

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

MIANDAD CHANDIO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-11 and M.A. No. 420 of 2020, decided on 16th May, 2023.

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

----Ss. 302(b), 452, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or wrongful restraint, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of four days in lodging the FIR---Effect---Accused were charged for committing murder of the son of complainant---Incident took place on 21.09.2017 at 11.00 pm and the distance between the place of the incident and the police station was 18/19 km and the FIR was registered on 25.09.2017, even otherwise, after the incident police was not informed the whole night and in the morning complainant party brought the dead body at hospital where they called the police---On the approach of the police, the FIR was not registered but the police started the investigation and later on after four days FIR was registered---Such delay in the FIR had not been explained by the complainant---Complainant admitted during her cross-examination that she lodged the FIR after consultation with her elders---Such delay in the registration of FIR made the entire case doubtful---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Zeeshan alias Shani v. The State 2012 SCMR 428 ref.

Noor Muhammad v. The State 2010 SCMR 97 and Muhammad Fiaz Khan v. Ajmer Khan 2010 SCMR 105 rel.

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

----Ss. 302(b), 452, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or wrongful restraint, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light not established---Effect---Accused were charged for committing murder of the son of complainant---Incident took place at 11.00 pm in the night and the identification of the accused was stated to be in the light of solar bulb---Solar or the bulb was not taken by the Investigation Officer nor was produced by the complainant party nor did the sketch/mashirnama of the place of wardat reflect the availability of the said solar bulb---In such circumstances, the identification of the accused persons at the time and place of the incident in the present case was doubtful---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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), 452, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or wrongful restraint, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive not proved---Effect---Accused were charged for committing murder of the son of complainant---Motive is always a double-edged weapon---No doubt, previous enmity could be a reason for the accused to commit the alleged crime, but it could equally be a reason for the complainant side to falsely implicate the accused in this case for previous grouse---Complainant who was a lady during her cross-examination admitted the enmity with the co-accused persons on the Khulla obtained by her daughter from the person of the accused party through the court---Said fact was also admitted by complainant in the FIR however, she stated that there was no enmity with the present accused---In the absence of any enmity with the complainant party, the role assigned against the accused that he abetted the co-accused for murdering the deceased created very serious doubt and was unbelievable---Co-accused who had been assigned the direct role had enmity with the complainant party and the accused had no enmity, even though the accused had not played any active role at the time of the incident though he was stated to be armed with a gun---In such circumstances, the evidence so produced by the prosecution could not be relied upon safely and could not be made a basis to maintain the conviction---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Ashraf alias Acchu v The State 2019 SCMR 652 rel.

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

----Ss. 302(b), 452, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or wrongful restraint, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Contradictions and dishonest improvements in the statements of witnesses--- Effect--- Accused were charged for committing murder of the son of complainant---Record showed that the prosecution witnesses gave their contradictory evidence and made dishonest improvements in the case which created very serious doubt---Complainant during cross-examination stated that the deceased was brought by her to the hospital at 4-00 to 5-00 a.m. and they came to their village with the dead body at 4-00 or 5-00 p.m. whereas the witness/real brother of complainant stated during cross-examination that they brought the dead body at hospital at 9-00 a.m. and the doctor started postmortem at 9-30 a.m. and they returned to their village at 11-00 a.m.---Incident was an unseen incident and the story alleged in the FIR was a managed one and that was the reason that on the same day FIR was not registered and it was registered after four days after due deliberation and consultation---Even after the registration of FIR, the witnesses made improvements in the case in respect of the role assigned against the accused persons and their participation on reassessment was found to be dishonest, bacause of which conviction could not be maintained---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

(e) Criminal trial---

----Recovery of crime weapon---Evidentiary value--- Recovery of a weapon of offence is only a corroborative piece of evidence---In the absence of substantive evidence, it is not considered sufficient to hold the accused person guilty of the offence charged---When substantive evidence fails to connect the accused person with the commission of the 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.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

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

----Ss. 302(b), 452, 504, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, house-trespass after preparation for hurt, assault or wrongful restraint, assault or wrongful restraint, rash or negligent act to endanger human life or personal safety of others, abettor present at the time of crime, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Abetment not proved---Effect---Accused were charged for committing murder of the son of complainant---Accused was charged for abetment---Perusal of S. 107, P.P.C., reveales that three ingredients are required to establish/charge any person as conspirator i.e. instigation; engagement with co-accused and intentional aid qua the act or omission for the purpose of completion of said abetment---However, all these three ingredients of S. 107, P.P.C., were missing in the present case---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

(g) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creats reasonable doubt in the prudent mind, then its benefit is always extended in favour of the accused not as a matter of grace or concession, but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772; 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.

Razi Khan Nabi Bux R. Chandio for Appellant.

Aitbar Ali Bullo, Deputy Prosecutor General, Sindh for the State.

2024 Y L R 905

[Sindh]

Before Zafar Ahmed Rajput and Amjad Ali Bohio, JJ

FAIYAZ KHAN and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 81 of 2023, decided on 24th November, 2023.

Penal Code (XLV of 1860)---

----Ss. 324 & 353---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S.7 (h)---Attempt to Qatl-i-amd, police encounter, act of terrorism---Appreciation of evidence---Recovery of weapons---Chain of custody---Proof---Accused persons were convicted for commission of attempt to Qatl-i-amd, police encounter, recovery of firearms and act of terrorism and were variously sentenced with maximum imprisonment for ten years--- Validity--- Alleged encounter lasted for few minutes but no one from police party received any injury to his body---Even no bullet hit official vehicle of police, at the hands of accused persons who had pistols and had dared to open straight fire on police party and suddenly they stopped firing after two shots each, though they had more live bullets in their alleged recovered pistols---No blood marks were found at the occurrence, which fact alone cast doubt on the authenticity of alleged encounter---No police official was listed among prosecution witnesses who took the case property to Forensic Science Laboratory---Such discrepancy raised significant concerns in delivery of parcels intact to Forensic Science Laboratory---No prosecution witness disclosed name of the police official through whom case property was sent to Forensic Science Laboratory---Prosecution failed to establish safe departure and delivery of parcels to Forensic Expert, in circumstances---Such omission had raised doubts about integrity of chain of custody---High Court set aside conviction and sentence awarded by Trial Court and accused was acquitted of the charge---Appeal was allowed, in circumstances.

Kamal Din alias Kamala v. The State 2018 SCMR 577 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

Abdul Nabi and Iftikhar Ahmed Shah for Appellants.

Saleem Akhter Buriro, Addl. Prosecutor General, Sindh for Respondent.

2024 Y L R 913

[Sindh]

Before Irshad Ali Shah, J

Syed INAYAT---Petitioner

Versus

The STATE---Respondent

Criminal Jail Appeal No. 5 of 2023, decided on 21st August, 2023.

Penal Code (XLV of 1860)---

----S. 377-B---Unnatural offences---Appreciation of evidence---Benefit of doubt---Accused was charged that he had subjected the victim (young boy) to carnal intercourse---Record revealed that victim as a prosecution witness stated that on the date of incident he was asked by the appellant (accused) to purchase meal and deliver the same at his house; when he was going to deliver the same, he was followed by the appellant and he locked the door of his house and committed sodomy with him; he then narrated the incident to his father who lodged report of the incident with the Police---First Information Report was lodged with delay of about 01 day of the actual incident ; such delay having not been explained plausibly, could not be overlooked---Victim, on asking, also stated that place of indent was Karkhana and he did not shout when its lock was closed by the appellant---No one from the Karkhana had been examined by the prosecution---Evidence of the complainant (father of the victim) was of little help to the case of prosecution for the reason that he was not an eye-witness---As per Medical Officer, the victim was examined by another doctor (in-charge of surgical unit) but said doctor had not been examined by the prosecution, and his non-examination could not be over-looked---No seminal material was identified on anal swab of the victim which could have connected the appellant in commission of the incident--- Investigation Officer, on asking, was fair enough to say that he recorded statements of mohalla (locality) people---None of them were examined by the prosecution and their non-examination could not be overlooked---Thus, the prosecution had not been able to prove its case against the appellant beyond shadow of doubt---Criminal jail appeal against conviction was allowed accordingly.

Mehmood Ahmed and others v. The State and another 1995 SCMR127 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

Ms. Roop Mala Singh for Appellant.

Khadim Hussain Khuharo, Addl. P.G. for the State.

2024 Y L R 925

[Sindh]

Before Adnan-ul-Karim Memon, J

AHSAN KHALID---Appellant

Versus

STATION HOUSE OFFICER, POLICE STATION SACHAL MALIR, KARACHI and another---Respondents

C.P. No. 849 of 2021, decided on 15th November, 2023.

Criminal Procedure Code ( V of 1898)---

----Ss. 22-A , 22-B & 154---Information in cognizable cases---Powers of Ex-officio Justice of Peace---Application under Ss. 22-A & 22-B of the Criminal Procedure Code, 1898---Maintainability---Validity---Court functioning as Ex-officio Justice of peace, before taking cognizance in the matter of an application under Ss. 22-A & 22-B of the Criminal Procedure Code , 1898, must satisfy itself that the party has already approached the concerned quarter(s) meant for redressal of his grievance i.e. filed an application before SHO for registration of the case, which was registered under a proper diary, and that the inaction by the SHO was further agitated before the higher police hierarchy (Superintendent of Police) under the due receipt but with no effect---In the present case, both the parties had agreed to appear before the concerned SHO who would record the version of the petitioner (complainant) as well as the respondent , as the latter had also raised the plea that a private complaint had already been registered ; and if SHO finds a case to be registered, he may do so in accordance with law---Constitutional petition was disposed of accordingly.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 and Younas Abbas and others v. Additional Sessions Judge Chctkwal and others PLD 2016 SC 581 ref.

Muhammad Immad Qamar for Petitioner.

Raja Masood Ahmed Qazi for Respondent No.2.

2024 Y L R 947

[Sindh ]

Before Mohammad Karim Khan Agha and Kausar Sultana Hussain, JJ

Syed AFSAR alias RIZVI---Appellant

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 61 of 2022, decided on 24th May, 2023.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused was charged for committing murder of the nephew of complainant and his friend by firing---No eye-witness to the murder was there---No last seen evidence was there---No recovery of any weapon was made from the accused---Accused allegedly took the police to the place where the murder took place but admittedly that place was already known to the police so that piece of evidence was irrelevant---Significantly, the one place which the police did not know about i.e. from where the deceased was abducted, the accused did not take the police there---Appeal was allowed, in circumstances.

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

----S. 164--- Judicial confession---Retraction---Scope---Retracted confession before a Magistrate could be the basis of conviction in a capital case.

Muhammad Amin v. The State PLD 2006 SC 219; Muhammad Ismail and others v. The State 2017 SCMR 898 and Fazal Rehman and others v. The State and others PLD 2004 SC 250 rel.

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

----Ss. 302(b) & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, common intention, act of terrorism---Appreciation of evidence---Benefit of doubt---Confession, retraction of---Accused was charged for committing murder of the nephew of complainant and his friend by firing---Based on the particular facts and circumstances of this case where admittedly the accused had been held in communicado in rangers custody where he originally admitted to numerous crimes for 90 days and the confession itself, which the accused claimed was not voluntary---Thus, it was not safe to rely on the retracted judicial confession and same was to be excluded from consideration---Moreover, it would be impossible for the accused to record such a long and detailed confession whereby he confessed to many murders over a number of years with dates and locations and names of persons concerned in the murder as well as the persons who were murdered---To do so would require a photo graphic memory which the accused did not possess---Furthermore, why would he confess to so many murders which all attracted the death penalty---Said fact did not appeal to logic, reason or common sense---Why would accused confess to the instant murder for which he was charged which happened over 4 years ago when there was no other evidence against him in this case which again did not appeal to logic, reason or common sense---Most likely scenario was that the accused was given the already typed out confession and simply made to sign it---Appeal was allowed, in circumstances.

Abdul Sattar v. The State PLD 1976 SC 404; Hayatullah v. The State 2018 SCMR 2092; Taj Bahadur alias Taji v. The State 1997 MLD 1072; Anwar Hussain v. The State 2019 YLR 1117; Attaullah alias Qasim v. The State 2006 YLR 3213; Azhar Ali v. The State 2021 YLR 2263; Muhammad Javed v. The State 2021 YLR 2075; Fazal Hussain alias Faqeera v. The State 2020 PCr.LJ 311; Owais v. The State 2022 PCr.LJ 920; Riaz Ahmed v. The State 2010 SCMR 846; Fazal Akbar v. The State 2013 PCr.LJ 369; Sardar Bibi v. Munir Ahmed 2017 SCMR 344; Muhammad Amin v. The State PLD 2006 SC 219; Dadullah and another v. The State 2015 SCMR 856; Akhtar v. The State 2014 PCr.LJ 993; Arshad Ali v. The State 2014 YLR 1394; Niazuddin v. The State 2011 SCMR 725; Khadim Hussain v. The State PLD 2010 SC 669; Majeed v. The State 2010 SCMR 55; Nazeer alias Wazeer v. The State PLD 2007 SC 202; Muhammad Ehsan v. The State 2006 SCMR 1857 and Manjeet Singh v. The State PLD 2006 SC 30 ref.

Raj Ali Wahid Kunwar along with Abdul Qadir Soomro for Appellant.

Ali Haider Saleem, Additional Prosecutor General, Sindh and Rana Khalid Hussain, Special Prosecutor Rangers for the State.

2024 Y L R 962

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

ABDUL WASAY JOKHIO and another---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 159, 172 of 2021 and Confirmation Case No. 9 of 2021, decided on 26th September, 2022.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---First Information Report lodged with promptitude within two hours of the occurrence---Effect---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---In the present case, the FIR was lodged with promptitude and the accused was named in the FIR---If there was any slight delay in lodging the FIR i.e. after two hours this was because two police man had been shot and needed to be taken to hospital as an emergency---One of whom expired and as such the slight delay in lodging the FIR had been fully explained and as such that slight delay was not fatal to the prosecution case---Accused was named in the FIR as he was being transported from the Police Station to Court by Police Officers, two of whom he shot---Thus, it was known who the accused were and there was no time to cook up a false case against them especially as the third Police Officer who accompanied them, was accused of negligence in their escape and confirmed that this was what actually happened---Furthermore, the complainant had no enmity with the accused and had no reason to falsely implicate him and that slight delay in lodging the FIR had not benefited the prosecution or prejudiced the accused---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.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Ocular account supported by evidence of eye-witness---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured--- Prosecution case primarily rested on the sole eye-witness to the murder of the deceased and his correct identification of the accused as the person who shot and murdered the deceased---Eye-witness was accompanying the accused, and the deceased in private car who were all policemen taking the accused for remand to the Court---Eye-witness knew who accused was as he was accompanying him on remand---Moreover, it was day light and eye-witness was sitting close to accused in the car for at least three hours when the incident took place---As such, based on the particular facts and circumstances of the case no identification parade was required---Eye-witness gave his evidence in a natural manner, and was named as present in the FIR, and was seriously injured during the incident which was supported by the medical evidence---Said witness had no enmity or ill will with the accused and had no reason to involve him in a false case---Said witness was not a chance witness and was not even cross-examined on any aspect of his evidence which could be assumed to be admitted---Thus, the evidence of said witness was found to be reliable, trustworthy and confidence-inspiring---Although, co-accused was not charged with murder but only negligence, he, in his S. 342, Cr.P.C statement fully corroborated the eye-witness about the happening of the incident in his presence---Likewise whilst giving evidence under Oath---Therefore court could rely on his S.342, Cr.P.C state-ment and his evidence under oath as being corroborative/ supportive of the eye-witness evidence--- Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

Imran alias Dully and another v. The State and others 2015 SCMR 155; Tariq Mehmood v. The State and others 2019 SCMR 1170; Mawas Khan v. The State and another PLD 2004 SC 330; Amir Khan v. The State 2000 SCMR 1885; Muhammad Mansha v. The State 2001 SCMR 199; Muhammad Younas and another v. The State and others 1990 SCMR 1272; Nazimuddin v. The State 2010 SCMR 1752; Rafaqat Ali and others v. The State 2016 SCMR 1766; Wahid v. The State PLD 2002 SC 62; Amrood Khan v. The State 2003 SCJ 604; Muhammad Ilyas and others v. The State 2011 SCMR 460 and Zulfiqar Ahmad and another v. The State 2011 SCMR 492 ref.

Ijaz Ahmed v. The State and others 2022 SCMR 1577; Dr. Javaid Akhtar v. The State PLD 2007 SC 249; 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; Muhammad Ismail v. The State 2017 SCMR 713 and Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Recovery of car used during the occurrence---Forensics Report--- Reliance---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Car which was recovered by the police was the car which was driven by the accused/Police Official and belonged to him and had bullet holes and human blood in it as corroborated by Forensic Science Laboratory Report and a chemical report ---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Correct identification of accused---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that the police witnesses travelled to Province of Punjab where they arrested accused in the present case who was already in custody in another case and a case which concerned an illegal fire arm---If accused was not recognized or known by the police in the present case why did the police travel all the way to Punjab to arrest him whereby they had to cross numerous administrative and bureaucratic hurdles which further supported the prosecution case that accused was correctly identified---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, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Recovery of pistol from accused and empties from the spot---Reliance---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---No doubt that the pistol which was recovered from the accused by the police in Punjab was the pistol which was owned by and belonged to the accused/Police Official which when sent for Forensic Science Laboratory with the empties recovered at the scene of the crime matched---This directly linked the accused to the commission of the crime---Empties were also not foisted as they were sent soon after the crime before the pistol was recovered for Forensic Science Laboratory and sent again with the pistol for Forensic Science Laboratory once it was recovered which on both occasions led to positive reports---Furthermore, mere delay in sending the pistol for Forensic Science Laboratory in the absence of evidence of tampering would not offset 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 accordingly dismissed.

Muhammad Ashraf v. The State 2011 SCMR 1046 rel.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Police witnesses evidence of---Reliance---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that the police witnesses had no enmity or ill will towards the accused and had no reason to falsely implicate him in the present case---In such circumstances, the evidence of the police witnesses could be fully relied upon---Circumstances established that the prosecution had proved its case against the accused beyond a reasonable doubt---Appeal against conviction was accordingly dismissed.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Minor contra-dictions---Inconsequential--- Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that all the witnesses were consistent in their evidence and 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---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the accused being driven in the car of accused/Police Official for a remand hearing accompanied by the deceased and the eye-witness, to the accused acquiring a pistol and shooting the deceased and the eye-witness and escaping, to the accused being arrested in the Punjab in a different case, to the recovery of his pistol to a positive Forensic Science Laboratory Report with the 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.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Accused as a habitual offender---Effect---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Record showed that the accused was already under arrest in a similar type of case in the Province of Punjab and was implicated in many cases in Province of Sindh and in one case had even been handed down a life sentence by the Trial Court which was maintained by the High Court, which indicated that he had a propensity to commit such like crimes and was a habitual offender---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, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Defence plea not proved by accused---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Defence case was simply one of false implication by the police based on the fact that the accused was in jail in Punjab at the time of the offence as per his S.342, Cr.P.C statement and that the crime was committed by the deceased co-accused---However, having taken such defence it was incumbent on accused to produce at least some evidence in support of the same which he failed to do---Accused did not give evidence on oath and did not produce any defence witness in support of his defence case or produced any other evidence which could dent the prosecution case---Thus, Court disbelieved the defense 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.

Anwar Shamim v. State 2010 SCMR 1791 rel.

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

----Ss. 302(b), 324, 223, 224 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Qatl-i-amd, attempt to commit qatl-i-amd, escape from confinement or custody negligently suffered by public servant, resistance or obstruction by a person to his lawful apprehension, common intention, act of terrorism---Appreciation of evidence---Act of terrorism not made out---Prosecution case was that the accused persons while in police custody made firing upon the Police Constables and ran away, and due to firing one Police Constable died and another was seriously injured---Based on the particular facts and circumstances of the present case, it appeared that the intent of the accused was to escape from police custody and in achieving that object he murdered one policemen who was guarding him and seriously wounded another which had no object, intent, purpose or design to create terror which was rather to escape from police custody and as such the accused was acquitted of all offences under the Anti-Terrorism Act---However, his appeal against conviction for other offences was dismissed.

Ghulam Hussain v. State PLD 2020 SC 61 rel.

Nadir Khan Burdi for Appellant (in Special Criminal Anti-Terrorism Appeal No. 159 of 2021).

Muhammad Iqbal Awan, Additional Prosecutor General Sindh for the State (in Special Criminal Anti-Terrorism Appeal No. 159 of 2021)..

Iftikhar Ahmed Shah for Appellant (in Special Criminal Anti-Terrorism Appeal No. 172 and Confirmation Case No. 9 of 2021).

Muhammad Iqbal Awan, Additional Prosecutor General Sindh for the State (in Special Criminal Anti-Terrorism Appeal No. 172 and Confirmation Case No. 9 of 2021).

2024 Y L R 996

[Sindh]

Before Naimatullah Phulpoto and Shamsuddin Abbasi, JJ

ALI HUSSAIN alias RAJU---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 251 of 2022, decided on 18th January, 2023.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of narcotics---Charas weighing 1650 grams brought to the police station was sent to the Chemical Examiner for analysis through the Investigation Officer, but neither Head Moharir had been examined nor entry of Register No.19 had been produced before the Trial Court---Since safe custody of the charas at Police Station and its transmission through safe hands was not established on the record, the same could not be used against the accused---Prosecution had failed to establish safe custody of the narcotic substance at Police Station and its safe transmission to the expert---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

Qaiser Khan v. The State through Advocate General Khyber Pakhtunkhawa, Peshawar 2021 SCMR 363 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Contradictions in the prosecution's evidence---Police Officials as witnesses---Enmity with the Police Officials---Record revealed that Mashiras a prosecution witness during his examination replied that there was a slab of charas but in cross-examination he replied that there were 07 pieces of charas---Prosecution had no explanation for such ambiguity---According to the case of prosecution, appellant was arrested at 6:00 a.m. and presence of 2/3 private persons had also come on record--- Non-examination of these private persons was fatal to the case of prosecution, for the reason that appellant in his statement recorded under S. 342, Cr.P.C., had claimed enmity with the police officials---No doubt, evidence of Police Officials was as good as of private persons but when appellant claimed enmity with police the Court would look into independent corroboration, which was lacking in present case---Circumstances established that the prosecution had failed to bring home the guilt of accused---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---For giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt---If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as matter of right; which is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted."

Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 2 others v. The State 2008 SCMR 1221; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Zaman v. The State 2014 SCMR 749 and Muhammad Mansha v. The State 2018 SCMR 772 ref.

Nemo for Appellant.

Ali Haider Saleem, Additional Prosecutor General Sindh for the

State.

2024 Y L R 1011

[Sindh]

Before Mohammad Abdur Rahman, J

Messrs FAQEER HUSSAIN & COMPANY through Special Attorney---Petitioner

Versus

Messrs SIR HAJI ABDULLAH HAROON TRUST WAKF-2 through Attorney/Rent Collector and 2 others---Respondents

C. P. No. S-153 and C.M.A. No. 1098 of 2021, decided on 10th August, 2023.

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

----S. 15---Constitution of Pakistan, Art. 199--- Constitutional petition---Ejectment of tenant---Power of attorney---Ratification of authority---Death of principal---Eviction of petitioner/tenant was sought by a person holding joint power of attorney executed by two Matwali of the trust---Rent Controller and Lower Appellate Court concurrently passed eviction order---Petitioner/tenant assailed eviction proceedings on the plea that one of the two principals who executed power of attorney had died before filing of rent case---Validity---Current Mutawalis had the authority under Waqfnama to appoint a person to institute proceedings for eviction of petitioner/tenant---It was open to Mutawalis to ratify unauthorized act on the part of attorney, as the defect was curable---Defect had already been impliedly achieved by defending appeal before Lower Appellate Court and proceedings before High Court---High Court declined to interfere in concurrent orders passed by two Courts below---Constitutional petition was dismissed, in circumstances.

Javed Arshad Mirza v. Trustees of Haji Sir Abdullah Haroon and others PLD 2005 Kar. 684; Moiz Abbas v. Mrs. Latifa 2019 SCMR 74; S.D.O./ A.M., Hasht Nagri Sub-Division, PESCO, Peshawar and others v. Khawazan Zad 2023 SCMR 174; Rahat And Company through Syed Naveed Hussain Shah v. Trading Corporation of Pakistan Statutory Corporation, Finance and Trade Center through Secretary or Chief Executive Officer PLD 2020 SC 366; Justice Khurshid Anwar Bhinder v. Federation of Pakistan PLD 2010 SC 483 and Dr. Iqrar Ahmad Khan v. Dr. Muhammad Ashraf 2021 SCMR 1509 ref.

Abdul Mutalib for Petitioner.

Noor Ahmed Malik for Respondent No. 1.

2024 Y L R 1028

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

GHULAM MUHAMMAD KHOSO---Petitioner

Versus

PROVINCE OF SINDH through Secretary Board of Revenue and 7 others---Respondents

C. P. No. D-2785 of 2013, decided on 21st November, 2023.

Land Acquisition Act (I of 1894)---

----Ss. 6, 17, 18 & 34---Constitution of Pakistan, Arts. 24 & 25---Property rights---Discrimination---Compensation, non-payment of---Compound interest---Petitioner/land owner was aggrieved of non-payment of compensation for his land duly acquired by authorities---Validity---It was duty of functionaries of the Sate to ensure that rights of citizens, particularly the fundamental rights guaranteed under the Constitution should not be trodden or denied---Compensation to be paid to land owner in year 2009/2010 had not been done and the land owner had already suffered a lot on account of non-payment of compensation to him---Delinquent officers in National Highway Authority/Revenue Department were responsible for making losses sustained by/caused to land owner---Compensation had already been paid to other land owners, whose lands were acquired for same public construction project---Non-payment of compensation to petitioner/land owner was act of discrimination---High Court directed acquiring agency/revenue department for expeditious compensation to petitioner/ land owner regarding his acquired land with the benefit of compound interest under S. 34 of Land Acquisition Act, 1894---Constitutional petition was allowed accordingly.

Nisar Ahmad Khan and others v. Collector, Land Acquisition; Swabi and others PLD 2002 SC 25; National Highway Authority through Ghulam Mujtaba, G.M, Lahore v. Mazhar Siddique and others 2023 SCMR 493; Syeda Nasreen Zohra (Deceased) through L.Rs and others v. Government of Punjab through Secretary Communication and Works Department, Lahore and others 2022 SCMR 890; National Highway Authority v. Rai Ahmad Nawaz Khan and others 2023 SCMR 700 and Human Rights Commission of Pakistan and others v. Government of Pakistan and others PLD 2009 SC 507 rel.

Sarfraz A. Akhund for Petitioner.

Zubair Ahmed Rajput for the Respondents.

Ahmed Ali Shahani, A.A.G. for Province of Sindh.

2024 Y L R 1043

[Sindh (Sukkur Bench)]

Before Arbab Ali Hakro, J

MUMTAZ HUSSAIN and 5 others---Petitioners

Versus

ALLAH WADHAYO through L.Rs. and others---Respondents

C.P. No. S-84 of 2022, decided on 20th November, 2023.

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

----Ss. 5 & 15---Tenancy agreement---Oral tenancy---Petitioner/landlord sought eviction of respondent/tenant on the plea of bona fide personal need and default in payment of monthly rent---Rent Controller and Lower Appellate Court declined to evict respondent/tenant on the ground that there was no written tenancy agreement---Validity---Method in respect of execution of tenancy agreement has been provided in S. 5 of Sindh Rented Premises Ordinance, 1979---Purpose of enactment of S. 5 of Sindh Rented Premises Ordinance, 1979, is to provide manner for making agreement and care has to be taken to avoid any doubt or ambiguity in execution of the same---This did not mean that oral tenancy was prohibited under Sindh Rented Premises Ordinance, 1979---No such provision was provided in Sindh Rented Premises Ordinance, 1979, to exclude jurisdiction of Rent Controller in respect of a dispute between landlord and tenant based on oral tenancy---In the present case there was relationship of landlord and tenant between the parties and Rent Controller as well as Lower Appellate Court committed irregularities while misreading and non-reading of evidence available on record and had decided issue of relationship of landlord and tenant in negative manner by dismissing rent application solely on such ground without giving findings on default and personal bona fide use---High Court set aside concurrent orders passed by two Courts below and the matter was remanded to Rent Controller for decision afresh---Constitutional petition was allowed accordingly.

Allies Book Corporation through L.Rs v. Sultan Ahmad and others 2006 SCMR 152; 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; PLD 2006 SC 549; Kumar Krishna Prosad Lal Singha Deo v. Barabori Coal Concern Limited and others 1937 AIR (PC) 251 and Muhammad Anwar through his legal heirs representative v. Abdul Shakoor 1982 SCMR 1120 ref.

Safdar Ali Bhatti for Petitioners.

Nemo for Respondents.

Mehboob Ali Wassan, Assistant Advocate General for Province of Sindh.

2024 Y L R 1061

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

GHULAM HUSSAIN alias SUDHEER---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. S-850 M.A. No. 7232 of 2023, decided on 15th January, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997) S.9(c)---Possession of 1480 grams of charas---Bail, refusal of---As per FIR, on arrest of the applicant (accused), charas was secured from him by the police party---In such situation it would be premature to say that the applicant being innocent has been falsely involved in the present case by the police by foisting upon him such recovery---No doubt there is no independent witness to the incident but for this reason, the complainant and his witnesses could not be disbelieved at present stage---No doubt charas has been sent to Chemical Examiner with delay of about 05 days but such delay could not be resolved by the High Court at present stage---Report of the chemical examiner is in positive---Minimum sentence prescribed by law for the alleged offence is nine years---Offence alleged against the applicant is affecting the society at large---There appear reasonable grounds to believe that the applicant is guilty of the offence, with which he is charged; thus, no case for his release on bail on point of further inquiry is made out---Bail application was dismissed.

Manzoor Hussain Larik for Applicant.

2024 Y L R 1079

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

NASREEN QADRI and another---Applicant

Versus

MIAN BUX and others---Respondents

Criminal Miscellaneous Application No. S-394 of 2023 and IInd Appeal No. S-29 of 2022, decided on 13th November, 2023.

Civil Procedure Code (V of 1908)---

----S. 47--- Suit for removing encroachment--- Objection petition---Question relating to rights of claimant in attached property---Petitioner/plaintiff filed a suit against Government Officials and various persons including the objector for removing the encroachment made in the street, which was decreed, directing the officials to remove the encroachment---Appeal and civil revision thereagainst were filed but dismissed---Petitioner/plaintiff filed execution petition which was allowed---During the execution proceedings the objector moved objection petition that he had not encroached any part of the common passage/street as there was no regular street/common passage---Court framed certain issues by exercising purported jurisdiction under S. 47, C.P.C.---Validity---Mukhtiarkar Report submitted before the Tribunal and the finding given by the Tribunal had been upheld up to the Supreme Court---After exhausting all such remedies when the applicant/lady went for the implementation before the Tribunal, the Tribunal passed the impugned Order---Reason for exercising jurisdiction under S. 47 of C.P.C., was mentioned in paras. 5 & 6 of the impugned Order, that since Supreme Court had given the observation about declaration of title of the objector, thus the Tribunal took it upon itself to decide the same controversy; however, while doing so, it completely overlooked the fact that already that controversy had been decided by the Court, earlier preferred by the Objector against other persons in respect of his entitlement---Therefore, the view taken by the Tribunal with regard to invoking S. 47 of C.P.C. was erroneous and not a proper exercise of jurisdiction and was illegal---Consequently, the impugned Order was set-aside---Case was remanded to decide the application for implementation afresh.

Noor ul Haq Qureshi along with Saad Salman Ghani for Applicant (in Criminal Miscellaneous Application No. S-394 of 2023).

Sagar Ali Sathio for Respondent No. 1 (in Criminal Miscellaneous Application No. S-394 of 2023).

Nazar Muhammad Memon Adl.P.G. for the State (in Criminal Miscellaneous Application No. S-394 of 2023).

Sagar Ali Sathio for Appellant (in IInd Appeal No. S-29 of 2022).

Allah Bachayo Soomro, Additional Advocate General Sindh along with Farhan Ali Jatoi Mukhtiarkar Taluka Qassimabad for Respondents Nos.1 to 7 (in IInd Appeal No. S-29 of 2022).

Adeel Baig Panhwar along with Ammar Ahmed Khoso for Respondent No.8 (in IInd Appeal No. S-29 of 2022).

2024 Y L R 1144

[Sindh]

Before Adnan-ul-Karim Memon, J

RIAZ AHMED---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 2623 of 2023, decided on 11th December, 2023.

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

----S. 497---Penal Code (XLV of 1860), S.489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Tentative assessment of the record reflected that the alleged cheque was dishonoured by the bank on 26.08.2022 and the FIR was lodged on 28.09.2022 with an inordinate delay of more than 26 days without any explanation of the delay---Delay in criminal cases, particularly when it was unexplained, is always presumed to be fatal for the prosecution---Sentence for the offence under S. 489-F, P.P.C. was three years and the same did not fall within the prohibitory clause of S. 497, Cr.P.C.---Grant of bail in the offences not falling within the prohibitory clause is a rule and refusal is an exception---Concession of bail is a procedural relief having nothing to do with the ultimate fate of the trial---If a person is otherwise found entitled to the concession of bail, his liberty could not be curtailed on the ground of the charge being of a heavy amount---In such cases rule is bail and not jail---Deviation from such rule could only be made in exceptional circumstances if there is an apprehension of abscondence; if there is an apprehension of repetition of offense; if there is an apprehension of tampering with the prosecution evidence---Bail application was accepted, in circumstances.

Zulfiqar Ali v The State 2018 MLD 1521; Shahzad Akhtar alias Sajjad v. The State 2016 YLR 1002; Syed Amir Jalali v. The State and another Muhammad Ilyas v. The State 2017 MLD 1383, Farman Hussain v. The State 2023 PCr.LJ 398 and Liaquat Ali v The State 2022 YLR 1662 ref.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Abdul Hafeez v. The State 2016 SCMR 1439; Dr. Abdul Rauf v.

The State 2020 SCMR 1258; Muhammad Ramzan v. State 2020

SCMR 717; Muhammad Sarfaraz v. The State 2014 SCMR 1032 and Saeed Ahmed v. The State 1995 SCMR 170 rel.

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

----S.497---Bail---Tentative assessment---Scope---Observations made in the bail order are tentative and have no bearing on the final determination of guilt or innocence by the Trial Court.

Zahid Ali Metlo for Applicant/ accused.

Talib Ali Memon, Assistant P.G.

2024 Y L R 1157

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

ABDUL RAHEEM DAYO---Appellant

Versus

The STATE and another---Respondents

Special Criminal Appeal No. D-88 of 2022, decided on 23rd June, 2023.

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

----Ss. 302(b), 319 & 337---Railways Act (IX of 1890), Ss. 101, 126, 127 & 128---Qanun-e-Shahadat (10 of 1984), Art. 129(g)--- Qatl-i-amd, qatl-i-khata, jaifah, endangering the safety of the persons by any rash or negligent act or omission, intentional acts, omissions and negligence of functionaries, maliciously hurting or attempting to hurt persons travelling by railway or damaging property belonging to railway---Appreciation of evidence---Withholding material evidence---Effect---Prosecution case was that due the negligence of accused, accident of train took place, and resultantly, 15 lives had been lost whereas 44 passengers had sustained grievous injuries---Admittedly, the accused was not designated as "Station Master" but he was working as "Assistant Station Master"---Prosecution had not produced any tangible evidence to prove that it was the duty of the "Assistant Station Master" to maintain the Railway track and signal system---Complainant stated that a high level enquiry was conducted in the matter regarding the incident and in said enquiry Divisional Commercial Officer was appointed as Enquiry Officer---However, again the prosecution had failed to examine said Enquiry Officer before the Trial Court nor any enquiry report had been placed on the record---Another Enquiry Officer conducted enquiry but said Enquiry Officer had not been produced as witness by the prosecution---Federal Inspector Railway who had inspected the site had also not been examined before the Trial Court---Besides, the prosecution had also not examined any Technical Expert from the Block Station in order to confirm that no fault had occurred in Block Station---In such state of affairs, an adverse presumption under Art. 129(g) of the Qanun-e-Shahadat, 1984, could be drawn that in case the said persons would have been examined, they would have not supported the prosecution case---Circumstances established that the prosecution had not succeeded in proving its case against the accused---Appeal was accordingly allowed.

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

----Ss. 302(b), 319 & 337---Railways Act (IX of 1890), Ss. 101, 126, 127 & 128---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, qatl-i-khata, jaifah, endangering the safety of the persons by any rash or negligent act or omission, intentional acts, omissions and negligence of functionaries, maliciously hurting or attempting to hurt persons travelling by railway or damaging property belonging to railway---Appreciation of evidence---Confessional statement of the accused---Infirmities---Prosecution case was that due the negligence of accused, accident of train took place, and resultantly, 15 lives had been lost whereas 44 passenger had sustained grievous injuries---Allegedly, the accused recorded his confessional statement made before Sub-divisional Magistrate---In his statement recorded under S. 342, Cr.P.C., the accused had denied to have made any confessional statement---Sub-Divisonal Magistrate (SDM) at the time of recording his evidence could not identify the accused before the Trial Court, rather he pointed out a person standing at Serial No.2 who on enquiry disclosed his name as accused---Said witness further made admission that he had not demanded CNIC from the accused to verify his identity at the time of recording confessional statement---Said witness further admitted in his cross-examination that he had not mentioned in the body of confessional statement that the accused was remanded to judicial custody---Sub-divisional Magistrate did not append the required certificate at the bottom of the confessional statement---Sub-divisional Magistrate had admitted in his cross-examination that he had not made any specific note in the body of the confessional statement that he had remanded the accused to judicial custody---However, the accused after recording his confessional statement was not remanded to judicial custody but was remanded to police custody---Where the accused is not remanded to judicial custody and is sent to police custody after recording his confessional statement, it is fatal to the prosecution case---Circumstances established that the prosecution had not succeeded in proving its case against the accused---Appeal was accordingly allowed.

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

----Ss. 302(b), 319 & 337---Railways Act (IX of 1890), Ss. 101, 126, 127 & 128---Qatl-i-amd, qatl-i-khata, jaifah, endangering the safety of the persons by any rash or negligent act or omission, intentional acts, omissions and negligence of functionaries, maliciously hurting or attempting to hurt persons travelling by railway or damaging property belonging to railway---Appreciation of evidence---Rule of consistency---Prosecution case was that due the negligence of accused, accident of train took place, and resultantly, 15 lives had been lost whereas 44 passengers had sustained grievous injuries---Record showed that charge was framed against four accused persons---Same allegations had been levelled against all the four accused despite that the accused had been convicted while other three accused persons had been acquitted of the charge---From perusal of the contents of FIR, it was found that it had been mentioned therein that on enquiry at the spot, it was disclosed that due to negligence in duty by three accused persons, incident had taken place---However, the prosecution had not furnished any plausible explanation/ justification that when in the FIR the allegations regarding negligence due to which said accident had allegedly taken place, had been attributed to all three accused persons named in the FIR, then as to how and why the other two persons had been exonerated from the charge and had been arrayed as prosecution witnesses, whereas the accused had been sent up for trial---In that view of the matter, the rule of consistency came into play---Circumstances established that the prosecution had not succeeded in proving its case against the accused---Appeal was accordingly allowed.

Muhammad Hamzo Buriro for Appellant.

Ghulam Abbas Akhter Awan, along with Muhammad Munir, Traffic Inspector, Khanpur and Abdul Rasheed Sr. Inspector, Khanpur for Respondents/ Pakistan Railways.

Nisar Ahmed Abro, D.A.G. and Karim Bux Janwri, Asstt. Attorney General for Pakistan along with Aftab Ahmed Shar, Addl. Prosecutor General, Sindh for the State.

2024 Y L R 1204

[Sindh]

Before Mohammad Karim Khan Agha and Arshad Hussain Khan, JJ

SHAH NAWAZ and another---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 706 of 2021 and Criminal Jail Appeal No. 389 of 2022, decided on 7th December, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--- Police witnesses and their evidence---Reliance---Prosecution case was that 79 kilograms charas was recovered from the vehicle of the accused persons---Record showed that the FIR was lodged with promptitude giving no time for concoction and the S.161, Cr.P.C. statements of the witnesses who gave evidence were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence---Arrest and recovery was made on the spot and the accused persons were caught red handed with the narcotics in the car which one of the accused persons was driving and the other accused was sitting in the passenger seat---Evidence of police officials fully corroborated each other in all material respects as well as the prosecution case---Evidence of police witnesses was not dented despite a lengthy cross-examination---Evidence of a police witness was as reliable as any other witness provided that no enmity existed between them and the accused and in this case the accused persons were unable to prove through evidence any such enmity---Thus the police evidence was corroborative in all material respects---One of the accused persons was the driver of the car whilst the other was sitting in the front passenger seat of the car which was stopped after specifically being pointed out by a spy informer and the narcotics were recovered from the back of the car secretly concealed in wrapping papers of chocolates and coffee which were recovered from the rear of the car on the pointation of the accused persons and were secured and sealed on the spot---Most of the relevant police entries had been exhibited including those relating to departure, arrival and safe custody of the narcotic and mashirnama of arrest and recovery which was prepared on the spot---It was extremely difficult for such a large amount of narcotics to be foisted on the accused persons which was not readily available with the Anti Narcotic Force---Accused persons being the driver and passenger of the car, which was also recovered, pointed out the narcotics concealed in the rear of the car hidden in chocolate and coffee wrappers, thus they had actual knowledge of the narcotics---Circumstances established that the prosecution had proved the case beyond a reasonable doubt---Appeal against conviction was dismissed in circumstances.

The State v. Imran Bakhsh 2018 SCMR 2039; Minhaj Khan v. The State 2019 SCMR 326; Khair ul Bashar v. The State 2019 SCMR 930; Naveed Asghr v. The State PLD 2021 SC 600; Tariq Pervez v. The State 1995 SCMR 1345; Wazir Muhammad v. The State 1992 SCMR 1134; Raja Ehtisham Kiyani v. The State 2022 SCMR 1248; Faisal Shahzad v. The State 2022 SCMR 905; Naveed Akhtar v. The State 2022 SCMR 1784; Sharafat Khan v. The State PLD 2022 SC 281; Ameer Zeb v. The State PLD 2012 SC 380 and Khuda Bakhsh v. The State 2015 SCMR 735 ref.

Mushtaq Ahmad v. The State 2020 SCMR 474; The State v. Abdali Shah 2009 SCMR 291 and Nadir Khan v. State 1998 SCMR 1899 rel.

(b) Criminal trial---

----Minor contradictions---Scope---Minor contradictions which did not affect the materiality of the evidence could be ignored.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----S. 9(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4---Possession of narcotics---Appreciation of evidence---Safe custody of narcotics with police established---Prosecution case was that 79 kilograms charas was recovered from the vehicle of the accused persons---Record showed that the narcotics were sealed at the time of recovery and kept in the malkhana for which the person who recovered the narcotics was examined; the person who deposited the narcotics in the malkhana was examined; the head of the malkhana was also examined; the person who took the narcotics to the Chemical Examiner one day later was also examined and all the relevant malkhana entries had been exhibited---Thus safe custody of the narcotics had been proven from the time it was recovered until the time it was sent to the chemical examiner---Even no suggestion of tampering with the narcotics was made by the accused persons during cross-examination---Chemical Report proved to be positive and all relevant protocols were followed---Balance of the recovered narcotics which were not sent for chemical analysis apart from a representative sample was burnt on the orders of the court as per evidence of official witness who produced both the memo and certificate of sampling and burning respectively and that's why the whole case property was not available before the Court--- Circumstances established that the prosecution had proved the case beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 9(c) & 29---Possession of narcotics---Presumption from possession of illicit articles---Appreciation of evidence---Scope---Prosecution case was that 79 kilograms charas was recovered from the vehicle of the accused persons---Under S. 29 Control of Narcotic Substances Act, 1997, once the recovery had been proven as in this case, the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotics---Accused persons, who were the driver and front passenger of the car respectively, had not been able to do so in this case as the evidence showed that the narcotics were recovered from the car which one accused was driving and the other accused was sitting in the front passenger seat of the car---Accused persons pointed out to the police where the narcotics were hidden in the car and as such they were caught red handed and arrested on the spot along with the narcotics which were hidden in wrappers and were recovered from the back of the car---Circumstances established that the prosecution had proved the case beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Mehboob-Ur-Rehman v. State 2010 MLD 481 rel.

(e) 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 79 kilograms charas was recovered from the vehicle of the accused persons---Prosecution witnesses were police officials---Although no independent mashir was associated with the arrest and recovery of the accused persons and the narcotics, however this was not surprising because people despite being asked, as in this case, were reluctant to be involved in cases concerning narcotic dealers---Even otherwise, S. 103, Cr.P.C. was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of the said Act---Circumstances established that the prosecution had proved the case beyond a reasonable doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Hanif v. The State 2003 SCMR 1237 rel.

Saifullah for Appellant (Criminal Appeal No. 706 of 2021).

Habib Ahmed, Special Prosecutor ANF (Criminal Appeal No. 706 of 2021).

Moula Bux Bhutto for Appellants (Criminal Jail Appeal No. 389 of 2021).

Habib Ahmed, Special Prosecutor ANF for the State (Criminal Jail Appeal No. 389 of 2021).

2024 Y L R 1217

[Sindh]

Before Muhammad Saleem Jessar, J

MUHAMMAD ASIF alias ASHO---Appellant

Versus

STATE---Respondent

Criminal Appeals Nos. S-164 and S-180 of 2021, decided on 20th January, 2023.\

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Accused were charged for committing murder of the deceased by firing---In the present case, Police Constable/witness deposed before the Trial Court that both the accused at the time of interrogation were not able to point out place of incident; however, police/Investigating Officer took them in police van towards the place of incident and prepared memo of incident---Place of incident was always shown or visited in presence of complainant of the case but in instant case complainant was not shown to be available at the time of inspection of place of the incident---Both the accused persons were arrested by police on 02.03.2017 and later on were shown arrested in this case and subsequently were produced before the Judicial Magistrate for holding their identification parade on 06.03.2017, therefore, presumption could be drawn that the accused persons were shown to the witnesses before producing them in the identification parade---Appeal against conviction was allowed in circumstances.

Muhammad Asif v. The State 2017 SCMR 486; Khalid Mehmood and another v. The State and others 2021 SCMR 810; Abdul Khaliq v. The State 1996 SCMR 1553; Noor Muhammad v. The State and another 2020 SCMR 1049 ref.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Recovery of crime empty and weapon of offence---Inconsequential---Accused were charged for committing murder of the deceased by firing---In the present case, one empty was shown to have been recovered from place of incident; whereas, three accused were arrayed in this case and out of three, whose fire went to hit and proved to be fatal for the deceased, had not been thrashed out by the Trial Court and by merely considering circumstantial indirect evidence, accused persons had been convicted for a capital charge---Empty allegedly shown to have been recovered from the scene of incident was not matched with the weapons allegedly shown to have been recovered from the appellants after about six months of the incident---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qanun-e-Shahdat (10 of 1984), Art. 22---Qatl-i-amd, common intention---Appreciation of evidence--- Benefit of doubt---Identification parade---Accused were charged for committing murder of the deceased by firing---Prosecution witness had deposed before the trial Court that accused persons were the same persons who committed murder of deceased; however, he had not assigned such specific role at the time of their identification parade---Since no body structure and special features of the accused persons were given under the FIR and subsequently were not pointed out by the witnesses at the time of their identification to be the persons of same features, such identification parade could not be taken into consideration more particularly when alleged eye-witnesses had a good look at the accused so as to rely on their testimony---Per evidence, adduced before the trial Court, complainant as well as eye-witnesses had categorically deposed that there was darkness due to "Maghrib prayers" time, therefore, they could not identify the accused---Appeal against conviction was allowed, in circumstances.

Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 rel.

(d) Criminal trial---

----Benefit of doubt---Scope---Conviction must be based and founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of the accused.

Wazir Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Accused can not be deprived of benefit of doubt merely because there is only one circumstance which created doubt in the prosecution story.

Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Umar Farooq for Appellant (in Criminal Appeal No.S-164 of 2021).

Muhammad Arif for Appellant (in Criminal Appeal No.S-180 of 2021).

Ms. Rubina Qadir, A.P.G. Sindh for the State.

2024 Y L R 1233

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

AIJAZ AHMED BHATTI---Appellant

Versus

MUHAMMAD URIS MEERANI and 2 others---Respondents

Criminal Acquittal Appeal No. S-69 of 2020, decided on 15th February, 2024.

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

----Ss. 3, 4 & 5---Criminal Procedure Code (V of 1898), S. 417(2)---Illegal dispossession of property---Appeal against acquittal---Appreciation of evidence---Accused were charged for occupying the houses of complainant illegally and forcibly without any lawful authority and knowledge of complainant---From perusal of record it appeared that the complainant in his evidence produced several documents, showing ownership of his father over the property in question, which included the PTO, entries in Deh Form-II, order of Deputy Commissioner and death certificate of his father---These documents were duly exhibited by him in his evidence, however, the impugned judgment passed by the Trial Court, on perusal, would reflect that the Trial Court had not offered any discussion and had not recorded it's findings in respect of these documents placed on record---Evidence of the complainant supported by the documentary evidence adduced by him needed to be discussed in detail---Trial Court appeared to have based acquittal in favour of respondents/accused, mainly on the points that the date and time of illegal dispossession of complainant at the hands of respondents/accused were not mentioned in the complaint, and further on the basis of so-called admission of complainant regarding the fact that Mukhtiarkar and SHO concerned had reported that accused had been residing in the property in question since last 25/30 years---Such findings of the Trial Court could not alone be considered sufficient to record acquittal in favour of an accused charged under the allegation of illegally dispossessing someone from his lawful property---From perusal of the impugned judgment, it appeared that the evidence of complainant and three official witnesses examined at trial had not been discussed fully by the Trial Court while recording acquittal findings---Thus, the findings of acquittal recorded by the Trial Court in the impugned judgment were not based on proper appreciation of the evidence and other material brought on record by the complainant---Appeal was allowed by setting aside impugned judgment and the matter was remanded to the Trial Court for decision afresh.

Nabi Bux v. The State and others 2011 PCr.LJ 1300; Shafi Muhammad v. The State and others PLD 2008 Kar. 480; Mumtaz Hussain v. Dr. Nasir Khan and others 2010 SCMR 1254; Muhammad Bakhsh v. Additional Sessions Judge and others 2010 PCr.LJ 268; Dr. Baber Yaqoob Sheikh v. Haris Hafeez and 2 others 2014 YLR 2176; Muhammad Tariq and others v. The State 2000 PCr.LJ 47; Muhammad Alim v. Muhammad Younis 2013 MLD 1245 and Muhammad Younas v. Ghazanfar Abbas and 12 others 2017 YLR 2229 ref.

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

(b) Appeal against acquittal---

----Double presumption of innocence---Scope--- Double presumption of innocence existed in favour of an accused, who had secured acquittal; one, that every accused shall be presumed to be innocent unless proved to be guilty, and the other, that the competent Court of law had adjudged him 'not guilty'.

Appellant present in person.

Muhammad Saleem Mangi along with Respondent No.2 (on bail).

Ali Anwar Kandhro, Addl. Prosecutor General for the State.

2024 Y L R 1243

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

ROSHAN ALI and 3 others---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-180 of 2016, decided on 2nd October, 2023.

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

----Ss. 3 & 4---Illegal possession of property etc.---Appreciation of evidence---Disputed land owned by the Government/Department--- Complainant alleged that the appellants forcibly occupied the MUHAG of land of complainant side and had unlawfully and illegally dispossessed the complainant from his land---Validity---Complainant as a witness, during cross-examination, stated that he did not know whether land in dispute was government land or otherwise, however, he voluntarily stated that it was MUHAGA land which was given to them ; he further stated that he did not know about any application submitted by him or his brother to concerned department to lease out the said land to him which was refused---Complainant, however, denied as to whether Irrigation Department lodged a FIR against one of the appellants on the basis that he had occupied the land of Irrigation Department and the case was pending before the Civil Judge---Said witness also stated during the cross-examination that he did not know about any notice issued by National Highway department against the said appellant/ accused to vacate the said land---Importantly, the complainant did not know as to whether land in dispute was leased out to them or not but he stated that they were cultivating the said land since their forefathers---Such aspect of the case clearly indicated that the complainant party was not the owner of disputed land and the possession thereof was also not lawful---Another witness from the complainant party, who was also claiming to be owner of the disputed land, had admitted in his cross-examination that the land which was in possession of the appellants (accused persons) was PAI land; he admitted the documents produced by him and that they were not lease documents---Said witness further admitted that the concerned SDO had submitted report to Executive Engineer stating therein that he had submitted application requesting therein to lease the land to him (said witness)---During the cross-examination said witness further admitted that he had not produced any title documents, record of rights or registered deed of land in dispute in the Court to show his ownership over the disputed land---Both the said witnesses claiming to be owners failed to produce any documents which stated that the land in dispute was leased out to them by any of the concerned departments or they were allowed to occupy the same---Yet another important witness from the complainant side was the concerned Tapedar who was authorized by the Mukhtiarkar for recording evidence in his examination-in-chief---Said witness deposed that the land in dispute was government property, which was situated adjacent to one bank of shakh i.e. Tara minor whereas land of complainant side was situated at opposite bank---During cross-examination of said witness the report of Mukhtiarkar was confronted to him after which he stated that it was mentioned in the report that Mukhtiarkar and the Tapedar again visited the site personally and found that the respondents (complainant side) had occupied the government land unlawfully by making katcha/pacca houses and they had no title document and the land in dispute was located in between the land pertaining to Irrigation Department and National Highway Authority---Said witness also admitted that the complainant had no title of said land and further admitted that complainant had no lease of the land---Trial Court had not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding the appellants guilty of the offence---High Court set aside the conviction and sentence recorded against the appellants and acquitted them of the charge---Appeal, filed by the accused/convict persons was allowed, in circumstances.

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

----Ss. 2(c), 2(d), 3 & 4---Illegal possession of property etc.---Appreciation of evidence---"Owner" and "occupier" of the disputed land---Disputed land owned by the Government / Department---Complainant alleged that the appellants forcibly occupied the MUHAG of land of complainant side and unlawfully and illegally dispossessed the complainant from his land---Validity---After the evidence of prosecution witness (the Revenue Official/Tapedar), it was crystal clear that complainant party was not the owner of property in dispute nor were lawful occupier of the said land---Intention of legislature in promulgating the "Illegal Dispossession Act, 2005" was to protect the lawful owners and the lawful occupiers of the immoveable property which was also clear from the Preamble of Act, 2005---Complainant party did not come in any of the definition of "owner" and "occupier" as provided in S. 2(c) & S. 2(d) of the Act, 2005---Trial Court had not evaluated the evidence in its true perspective and thus arrived at an erroneous conclusion by holding the appellants guilty of the offence---High Court set aside the conviction and sentence recorded against the appellants and acquitted them of the charge---Criminal appeal, filed by the accused/convict persons, was allowed, in circumstances.

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

----Ss. 3 & 4---Illegal possession of property etc.---Appreciation of evidence---Benefit of doubt---Scope---Complainant alleged that the appellants forcibly occupied the MUHAG of land of complainant side and unlawfully and illegally dispossessed the complainant from his land---Validity---Prosecution had failed to prove the guilt against the appellants beyond shadow of any reasonable doubt and for creating the shadow of a doubt, there should not be many circumstances---If a single circumstance creates reasonable doubt in the prudent mind, then its benefit is to be extended in favour of the accused not as a matter of grace or concession, but as a matter of right---High Court set aside the conviction and sentence recorded against the appellants and acquitted them of the charge---Criminal appeal, filed by the accused/convict persons, was allowed, in circumstances.

Muhammad Mansha v. The State 2018 SCMR 772 ref.

Muhammad Sachal Awan and Waqar Ahmed Memon for Appellants.

Badal Gahoti for the Complainant.

Ms. Rameshan Oad, A.P.G for the State.

2024 Y L R 1252

[Sindh (Larkana Bench)]

Before Aqeel Ahmed Abbasi, CJ

ABDUL RASOOL---Appellant

Versus

S.H.O., P.S. CITY JACOBABAD and 2 others---Respondents

Criminal Miscellaneous Application No. S-366 of 2023, decided on 6th March, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 22-A, 22-B & 561-A---Ex-officio Justice of Peace--- Jurisdiction---Dismissal of complaint---Applicant assailed order of Ex-officio Justice of Peace whereby application filed by him under Ss. 22-A & 22-B, Cr.P.C., for direction to S.H.O. to record his statement and register FIR against proposed accused person was dismissed---Validity---There was no error in the order passed by Ex-officio Justice of Peace---Applicant was at liberty to approach concerned Court of Investigating officer for recording his statement and he could also file suit for recovery of his articles/commodity against the person to whom such articles/commodity was entrusted for safe transportation--- Application was dismissed, in circumstances.

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

Safdar Ali Ghouri for Applicant.

Ali Anwar Kandhro, Addl. P. G.

Habibullah G. Ghouri, Amicus curiae.

2024 Y L R 1256

[Sindh (Sukkur Bench)]

Before Yousuf Ali Sayeed and Zulfiqar Ali Sangi, JJ

JANNAT GUL and another---Applicants

Versus

The STATE and others---Respondents

Criminal Revisions Nos. D-45, D-47, D-48 and D-49 of 2023, decided on 29th November, 2023.

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

----Ss. 6 (1), (2)(o), 7, 12, 23 & Third Sched., Entry No.4---Penal Code (XLV of 1860), Ss. 324, 353, 147 & 148---Sindh Arms Act (V of 2013) S.23(1)(a)---Terrorism, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, rioting armed with deadly weapons and recovery of weapons---Anti-Terrorism Court---Jurisdiction---Police encounter---Element of creating fear and insecurity in society, absence of---Effect---Accused persons were alleged to have encountered a police party in armed conflict---Accused persons sought transfer of trial to Court of ordinary jurisdiction on the plea that no act of terrorism was made out---Validity---Although there was an act of armed resistance against members of law enforcement agency, as envisaged in S. 6(2)(o) of Anti-Terrorism Act, 1997, yet factor specified in S. 6(1) of Anti-Terrorism Act, 1997, was absent---Matter did not fall within the fold of 'terrorism'---Mere recovery of firearms and ammunition coupled with assertion that the same were to be supplied onwards for the purpose of creating/ spreading terror did not suffice for that purpose, especially when intended recipient was not a proscribed person or proscribed organization---Alleged offence was even otherwise not one of those heinous offences which did not constitute offence of terrorism per se but were nonetheless to be tried by an Anti-Terrorism Court due to having been specified in Entry No. 4 of Third Schedule to Anti-Terrorism Act, 1997---High Court set aside the order passed by Anti-Terrorism Court and trial was transferred to ordinary Court of competent jurisdiction---Revision was allowed accordingly.

Ghulam Hussain and others v. The State PLD 2020 SC 61 and P.C. Nasir Hussain v. Hasnain Shah and 2 others 2022 MLD 425 rel.

Shabbir Ali Bozdar for the Applicants.

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

2024 Y L R 1276

[Sindh]

Before Mohammad Abdur Rahman, J

BHART LAL through Attorney---Appellant

Versus

MUHAMMAD YOUSUF POLANI and others---Respondents

Civil Revision No. 19 of 2021, IInd Appeal No. 169 of 2020, C.M.A. No. 4096 of 2021, IInd Appeal No. 170 of 2020 and C.M. No. 4099 of 2021, decided on 16th August, 2023.

Specific Relief Act (I of 1877)---

----Ss. 12 & 19---Civil Procedure Code (V of 1908), O.XLI, Rr. 25 & 33---Specific performance of agreement to sell---Compensation, awarding of---Framing of additional issue---Recording of additional evidence---Procedure---Appellant/plaintiff entered into agreement of purchase of suit property from respondent/defendant---At the time of execution of agreement to sell, the respondent/defendant handed over possession of suit property to appellant/ plaintiff---Trial Court and Lower Appellate Court without determining title of suit property dismissed suit and appeal filed by appellant/plaintiff on the ground that respondent/defendant did not have any title in suit property---Validity---In the event a finding would be given that title of respondent/defendant to suit property was deficient, the appellant/ plaintiff was to be indemnified to the extent of losses that had occurred to him on account of respondent's/defendant's improper title to suit property---To decide such fact and enforcement of such term available in the agreement between the parties, issue was to be determined in terms of S. 19 of Specific Relief Act, 1877---High Court in exercise of jurisdiction under O. XLI, R. 25, C.P.C. framed additional issues and remanded the matter to Trial Court for recording additional evidence on the issues so framed---High Court directed Trial Court to return the evidence together with its findings thereon and reasons thereof to High Court for decision on appeal---Second Appeal was remanded accordingly.

North-West Frontier Province Government, Peshawar through Collector Abbotabad v. Abdul Ghaffor Khan through Legal heirs PLD 1993 SC 417; Mst. Resham Bibi v. Lal Din 1999 SCMR 2325; Taj Wali Shah v. Bakhti Zaman 2019 SCMR 84; Muhammad Yousaf v. Munawar Hussain 2000 SCMR 204; Syed Hakeem Shah (Deceased) through LR and others v. Muhammad Idrees 2017 SCMR 316; Miss Ufera Memon v. Liquat University of Medical and Health Sciences (LUMAS) Jamshoro through Registrar PLD 2011 Kar. 400; Abdul Wahab Zaki v. Yousaf Hussain Khan and 5 others 1988 PCr.LJ 1507 and Rashid Ahmed v. Friends Match Works PLD 1989 SC 503 ref.

Hamza H. Hidayatullah and Ms. Omrazia Nadeem for Appellant (in IInd Appeals Nos. 169 and 170 of 2020).

Syed Ehsan Raza for Respondent No. 1 (in IInd Appeals Nos. 169 and 170 of 2020).

Syed Ehsan Raza for Respondent No. 2 (in IInd Appeals Nos. 169 and 170 of 2020).

Syed Ehsan Raza for Appellant (in Civil Revision No. 19 of 2021).

Hamza H. Hidayatullah and Ms. Omrazia Nadeem for Respondents (in Civil Revision No. 19 of 2021).

2024 Y L R 1298

[Sindh (Hyderabad Bench)]

Before Salahuddin Panhwar and Zulfiqar Ahmad Khan, JJ

SHAHZAIB alias WADERO FEROZE---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-67 of 2020, decided on 25th 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---Charas weighing 5000 kilograms was allegedly recovered from accused---Record showed that the accused was arrested from a chowk which was a thickly populated area and the complainant had sufficient time to call the independent persons of locality to witness the recovery proceedings but it was not done by him for reasons best known to him and 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., are 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 this case) and people were available there, omission to secure independent mashirs, particularly, in the police case could not be brushed aside lightly---No explanation was on record as to why independent witness had not been associated in the recovery proceedings---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---Appeal against conviction was allowed, in circumstances.

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

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

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Discrepancies in the evidence of witnesses--- Effect--- Charas weighing 5000 kilograms was allegedly recovered from accused---Complainant in his cross-examination had admitted that near the place of recovery, i.e. the main gate of Sessions Court, as well as at the gate of Record Room, security was available---Complainant did not call anyone from the security guards to act as mashir---Compplainat admitted he only opened one packet and then sealed all the packets as case property without opening and checking remaining four packets, whereas the mashir of arrest and recovery in his cross-examination had admitted that complainant did not call the security guard of Sessions Court for acting as mashir---Investigating Officer had deposited the case property to Chemical Examiner with the delay of about 06 days---Question arose that as per FIR and the evidence of complainant party, the accused was coming on motorcycle having Charas in his possession but he on seeing the police party neither resisted nor tried to slip away which did not appeal to a prudent mind---All the said things made the case of prosecution doubtful---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Delay of six days in sending the sample to the laboratory for analysis---Effect---Charas weighing 5000 kilograms was allegedly recovered from accused---According to the statement of complainant, he recovered the narcotics from the accused on 06.05.2020 and prepared the memo of arrest and recovery and handed over the case property to Police Official who deposited the same in Malkhana---Report of Director Laboratories and Chemical Examiner revealed that the narcotics were received by the office on 12.05.2020 after a delay of six days---Probability of tampering with the case property during that intervening period at Malkhana could not be brushed aside---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 transmission of narcotics for analysis not established---Effect----Charas weighing 5000 kilograms was allegedly recovered from accused---Record showed that the incharge of Malkhana had not been examined before the trial Court to prove the safe custody of recovered charas and its safe transmission---Chain of custody or safe custody and safe transmission of narcotics began 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---Chain of custody must be safe and secure---This was because, the Report of Chemical Examiner enjoyed very critical and pivotal importance under Control of Narcotic Substances Act, 1997 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 doubtful so as 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---However, the 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---Appeal against conviction was allowed, in circumstances.

Mst. Sakina Ramzan v. The State 2021 SCMR 451; Qaiser Khan v. The State, through Advocate-General, Khyper Pakhtunkhwa, Peshawar 2021 SCMR 363; Javed and others v. The State 2019 PCr.LJ Note 112; Anti-Narcotics Force Regional Director Sindh through Deputy Director (Law) v. Farhad Khan 2020 YLR 1453 and 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---Not necessary that there should be many circumstances creating doubts---If there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to 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.

Babar Ali Panhwar for Appellant.

Fayaz Hussain Sabki, Assistant Prosecutor General, Sindh for the State.

2024 Y L R 1309

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio, J

MUHAMMAD RASHEED---Appellant

Versus

SHAH MUHAMMAD and 16 others---Respondents

Second Civil Appeal No. S-03 of 2023, decided on 24th January, 2024.

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

----Ss. 8, 42 & 64---Sindh Land Revenue Act (XVII of 1967), S.172---Sindh Revenue Jurisdiction Act (X of 1876), S.11---Civil Procedure Code (V of 1908), O.VII, R.11---Jurisdiction of Civil Courts, exclusion of---Non-filing of revision before Board of Revenue---Rejecting of plaint---Suit for recovery of possession of immovable properties, declaration and injunction filed by appellant/plaintiff was rejected by Trial Court as well as Lower Appellate Court as the matter was barred under the law---Validity---Appellant/plaintiff rather than preferring Revision Application before Board of Revenue against order passed by Additional Commissioner, directly filed suit before Civil Court in violation of S. 11 of Sindh Revenue Jurisdiction Act, 1876---Suit filed by appellant/ plaintiff was barred under S. 172 of Sindh Land Revenue Act, 1967---High Court declined to interfere in judgment and decree passed by two Courts below---Second appeal was dismissed in circumstances.

T. Arivandandam v. T.V. Satyapal AIR 1977 SC 2421; Muhammad Jalat Khan v. Faisal Hayat Khan and 4 others 2003 CLC 837 and Jan Muhammad Abbasi v. Mukhtiarkar Estate Larkana (Barrage Mukhtiarkar) and others 2007 CLC 1790 rel.

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

----Ss. 96 & 100---Right of first appeal and second appeal---Distinction---Right of appeal gives rise to a notion of accentuating by two fold and three fold checks and balances to prevent injustice and ensuring that justice has been done---There is marked distinction between the two appellate jurisdictions, one is conferred by S. 96, C.P.C. in which Appellate Court may embark upon questions of fact, while in second appeal provided under S. 100 C.P.C., High Court cannot interfere in findings of fact record by first Appellate Court---Jurisdiction of second appeal is somewhat confined to questions of law which is sine qua non for exercise of jurisdiction under S. 100, C.P.C.---High Court cannot surrogate or substitute its own standpoint for that of first Appellate Court, unless conclusion drawn by lower fora is erroneous or defective or may lead to a miscarriage of justice---High Court cannot set into motion a roving inquiry into the facts by examining evidence afresh in order to upset findings of facts recorded by first Appellate Court.

Tahseen Ahmed H. Qureshi for Appellant/Plaintiff.

Mehboob Ali Kapri for Respondents Nos.1 to 4.

Ayaz Ali Rajpar, Additional A.G. for Respondents Nos.5 to 17.

2024 Y L R 1330

[Sindh]

Before Zulfiqar Ahmad Khan, J

MOHAMMAD FARAAZ SHAIKH through duly Authorized Representative---Appellant

Versus

Ms. JAVERIA SHAHANI and 4 others---Respondents

C.P. No. S-678 of 2022, decided on 25th January, 2024.

Constitution of Pakistan---

----Art. 199---Constitutional petition---Custody of minor---Restoration---Petitioner/father of minor son was aggrieved of removal of the child by respondent / mother--- Validity---Respondent/mother married in US and marriage was registered there under US laws---Child was born in US and later on respondent/mother chose to traffic the minor to Pakistan---Such illegal act rendered respondent/mother incapable of making right decision in the best interests of the child---Respondent/ mother destroyed the US passport of the minor and had made holes in the Pakistani passport of the child---Respondent/mother was not even willing to share details of the school where child was being educated in Karachi---Despite two opportunities having been given to her to bring the child to the Court, she failed and she wished to keep the child "underground" and intended to hide herself from red warrants issued against her---Respondent/mother of minor was not a fit person to take care of the best interests of the minor---High Court directed respondent/mother to hand over custody of the minor to petitioner/father or concerned authorities acting on his behalf, and the concerned authorities shall also afford all facilities to petitioner/father to take the child back to US---High Court further directed that in case respondent/mother wished to follow suit, appropriate facilities also be provided to her as and when requested---Constitutional petition was disposed of accordingly.

2019 CLC 1311; PLD 2016 SC 174; 2019 CLC 562; Ms. Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 293; Mst. Marium Tariq v. SHO Police Lines Defence PLD 2015 Sindh 382, Abu Saeed A Islahi v. Mrs. Talat Mir and others 1994 MLD 1370; Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508; Hague Convection (Sumayyah Moses v. SHO Faisalabad PLD 2020 Lah. 716; 1989 MLD 2209 and Mirjam Aberras Lehdeaho v. SHO PS Chung, Lahore 2018 SCMR 427 ref.

Syed Mustafa Mahdi for Petitioner.

Peer Syed Asadullah Shah Rashidi for Respondent No.1

Petitioner father and Respondent mother also present.

2024 Y L R 1376

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ahmad Khan, J

ALI MIR SHAH---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. S-245 of 2019, decided on 25th May, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Discrepancies---Accused was charged for committing murder of his wife/sister of complainant by hatchet blows---According to the complainant and a witness, who were brothers, the incident took place at about 3.00 p.m. and victim died at the spot and they took the dead body to the hospital and arrived in hospital at 5.30 p.m., but as per the report of the Medico-Legal Officer, she started post mortem at 9:15 p.m. whilst the dead body arrived at the hospital at 8:00 p.m., thus there was serious discrepancy in their story, which was fatal to the case of the prosecution---Another troubling aspect of the case was that the Medico-Legal Officer in her examination had admitted that rigor mortis was visibly present in the body---Usual duration of rigor mortis was 24 to 48 hours in winter and 18 to 36 hours in summer---As the incident took place in winter and dead body already showed signs of rigor mortis, it suggested that the death must have taken place any time in the past 24 to 48 hours, which contradicted the prosecution's story---Another alarming aspect of the case was that Medico-Legal Officer did not mention time of the death and she did not indicate that what was the gap between the incident and death, as she only had mentioned time of death as 4.00 p.m. (as stated by the relatives of the deceased) meaning thereby she neither bothered to find out what was the exact time of the death nor chose to mention it in the post mortem---Such unholy alliance with prosecution was confidence bulldozing, least to say---Said witnesses stated that the deceased was five months pregnant and she was keeping roza at the time of incident, however, during the course of post mortem, said aspect as to whether the victim was five months pregnant was not substantiated and her stomach was found with semi digested food material, meaning thereby that she was probably not even fasting---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---Discrepancies in the statements of witnesses---Accused was charged for committing murder of his wife/sister of complainant by hatchet blows---Investigating Officer of the case stated that he received the FIR at about 4:00 or 4:30 p.m. and he proceeded with the investigation after having made entry in the Roznamcha---Perusal of the FIR reflected that it was registered on 14.10.2006 at 5:30 p.m., thus it was not believable as to how Investigating Officer could have commenced the investigation even before the FIR was registered---In his cross-examination Investigating Officer admitted that he did not produce copies of diaries of the departure and arrival and he had seen the body in the mortuary, whereas none of the witnesses had mentioned that the body was ever left in the mortuary---According to the witnesses, the burial took place sometime during the night of 14-10-2006 as admitted by the two witnesses, however, both the said witnesses became hostile and could not support the version of the prosecution that the hatchet was recovered in their presence or the accused was arrested in their presence---Appeal against conviction was allowed, in circumstances.

Abdul Rehman Dahri associate advocate of Hameedullah Dahri for Appellant.

Muhammad Noonari, Deputy Prosecutor General, Sindh for the State.

2024 Y L R 1404

[Sindh (Sukkur Bench)]

Before Irshad Ali Shah, J

MUKHTIAR HUSSAIN alias MUKHTIAR AHMED---Petitioner

Versus

The STATE---Respondent

Criminal Bail Application No. S-908 and M.A. No. 7727 of 2023, decided on 12th March, 2024.

Criminal Procedure Code (V of 1898)---

----S. 498-A---Penal Code (XLV of 1860), Ss. 302, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, refusal of---Indiscriminate firing---Contention of the petitioner/accused was that he was let off by the police in investigation---Validity---Petitioner was named in the FIR with the allegation that he, along with the rest of the co-accused persons, after having formed an unlawful assembly and in prosecution of its common object, went over to the complainant party and committed murder of the deceased by fire shot injuries---Deceased, was found to have sustained fifteen (15) fire shot injuries---It was a case of indiscriminate firing, therefore, it would be hard to specify as to which injury was caused to the deceased by the petitioner---Delay of few hours in lodgment of the FIR in a case like the present one was natural and the same, even otherwise, could not be resolved by the Court at bail stage---No doubt, the petitioner in investigation was let off by the Police by disbelieving the version of the complainant and his witnesses, but it was unjustified act on the part of the Police---Even otherwise, the opinion of the police has got no binding effect upon the Court---It would be premature to say that the petitioner being innocent had been involved in the present case falsely by the complainant Party---There appeared reasonable grounds to believe that the petitioner was guilty of the offence with which he was charged and no case for grant of pre-arrest bail to him on point of further inquiry or mala fide was made out---Bail was declined to the petitioner, in circumstances.

Babar Nadeem v. The State through P.G Punjab and another 2020 SCMR 1253 distinguished.

Madad Ali Shah Masumi for Applicant.

Nadeem Ahmed Malik for the Complainant.

2024 Y L R 1408

[Sindh (Larkana Bench)]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

SUHBAT KHAN PATHAN---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. D-63 of 2019, decided on 21st September, 2022.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of the recovered narcotics and its safe transmission to the police station and then to the Chemical Examiner proved---Prosecution case was that 100 kilograms charas was recovered from the vehicle driven by the accused---Record showed that charas was recovered from the vehicle of accused on 17.2.2019, samples were separately sealed and sent through Police Constable to the Chemical Examiner---Chemical report was produced before the Trial Court, which showed that samples were received by Chemical Examiner in sealed packets---Roznamcha entries had also been produced---Said fact was confirmed and testified by the Police Constable, who had taken the samples to the Office of the Chemical Examiner on the second day---Report of the Chemical Examiner also testified that fact, therefore, it could safely be said that safe chain of the custody of the recovered charas was not compromised at all---All the relevant roznamcha entries had been produced before the Trial Court---Trial Court rightly appreciated the evidence and came to the conclusion that prosecution had established safe custody and safe transmission of the sample parcels to the concerned laboratory and report of the Chemical Examiner also contained tests carried out in the result, which corroborated the statements of the prosecution witnesses---Appeal against conviction was dismissed, in circumstances.

Tariq Pervez v. The State 1995 SCMR 1345; State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Nasar ud Din v. The State 2021 YLR 457; Ajab Khan v. The State 2022 SCMR 317 and Faisal Shahzad v. The State 2022 SCMR 905 ref.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--- Police witnesses, evidence of---Reliance---Prosecution case was that 100 kilograms charas was recovered from the vehicle driven by the accused---Police Officials were as good as any other private witness unless it was proved that they had any animus against the accused---However, no such mala fide on the part of the Police Officials could be brought on record by the accused in this case---Reluctance of the general public to become a witness/mashir in such like cases had become judicially recognized fact and there was no legal bar/ restriction against considering statement of the official witnesses---Police Officials were as good as any other person and could be relied upon---In this case, evidence of the Police Officials remained un-shattered during cross-examination---Appeal against conviction was dismissed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Defence plea taken by accused not proved---Prosecution case was that 100 kilograms charas was recovered from the vehicle driven by the accused---In the present case, a huge quantity of charas was recovered from the vehicle of the accused, who was driving it at the time of incident---Moreover, it was quite difficult for the police to foist such huge quantity of narcotics---Duty and obligation of the accused was to prove the specific plea taken by him in defence in terms of Art. 121 of Qanun-e-Shahadat, 1984, but accused had failed to prove the plea that he was doing labour at place "J" at that time---Accused had also failed to examine the witnesses in his defence to substantiate such plea---Trial Court rightly disbelieved such plea while holding that it was an afterthought---Even in the statement recorded under S. 342, Cr.P.C., accused did not agitate the plea that he was doing labour and was taken away on the day of his arrest from his working place---Prosecution succeeded to prove its case on its salient features, and the Trial Court rightly on close analysis came to the conclusion that prosecution proved its case against the accused---Appeal against conviction was dismissed, in circumstances.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--- Minor contradictions in prosecution evidence---Immaterial---Prosecution case was that 100 kilograms charas was recovered from the vehicle driven by the accused---Allegedly, overwriting in the timings of mashirnama of arrest and recovery was found---At the top of the mashirnama there was no overwriting, but in the body of the mashirnama in the timing 1130 there was some overwriting but it was not fatal to the case of prosecution---Minor contradictions or improvements in the prosecution evidence were to be overlooked---However, only material contradictions or overwriting were to be considered---Accused failed to point out that the overwriting was made dishonestly---Moreover, prosecution had not taken any benefit from such overwriting, therefore, contention of defence was without merit---Prosecution had succeeded to prove its case against the accused---Appeal against conviction was dismissed, in circumstances.

Ghulam Qadir v. The State PLD 2006 SC 61 rel.

Altaf Hussain Surahio for Appellant.

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

2024 Y L R 1415

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Muhammad Faisal Kamal Alam, JJ

MUHAMMAD SALEH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. D-64 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 two kilograms charas was recovered from the possession of the accused---First Information Report was registered with promptitude giving no time for concoction and the S.161, Cr.P.C., statements of the witnesses were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence---Arrest and recovery was made on the spot and the accused was caught red handed with the narcotics by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---Evidence of police witnesses was as reliable as any other witness provided that no enmity existed between them and the accused and in this case no enmity had been suggested or proven against any of the police witnesses and as such the police had no reason to falsely implicate the accused in a false case---Most significantly the narcotics were recovered from the bike which the accused was driving alone with no other passengers and the narcotics were recovered from the back of the bike---Bike was recovered along with the narcotics as per memo of arrest and recovery and was produced in Court along with the recovered narcotics---Under S.29 of Control of Narcotic Substances Act, 1997, once the recovery had been proven, as in this case, the onus would shift to the accused to show his innocence in that at least he had no knowledge of the narcotics---Accused had not been able to do so in this case---In this case, it was extremely difficult and unlikely that such a large amount of narcotics would have been foisted---Furthermore, if the police had wanted to foist the narcotic on the accused, they would have simply foisted one slab on him rather than taking the time consuming and convoluted route of foisting so many smaller packets on him with other packets of narcotics inside---All relevant police entries were exhibited at trial---Accused had a long list of criminal cases against him of similar nature and as such he was a hardened criminal---Although no independent mashir was associated with the arrest and recovery of the accused and the narcotic, S.103, Cr.P.C., was excluded for offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S. 25 of said Act---Circumstances established that the prosecution had proved its case beyond reasonable doubt against the accused---Appeal was accordingly dismissed.

Abdul Sattar v. The State SBLR 2019 Sindh 586; Basharat Hussain Shah v. The State 2020 PCr.LJ Note 39; Amjad Ali v. The State 2012 SCMR 577; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Akhtar Meen v. The State PLD 2022 Sindh 84; Ikramullah and others v. The State 2015 SCMR 1002; Khalil Ahmed v. The State PLD 2008 Kar. 8; Maula Jan v. The State 2014 SCMR 862; Abdul Rehman v. The State 2016 PCr.LJ Note 79; Haji Zafar Abbas v. The State and others 2016 PCr.LJ 1170; Hussain Ali v. The State 2020 MLD 70; Noor Hassan v. The State 2020 YLR 2643; Abdul Waqar v. The State 2018 YLR 2358; Shabbir Hussain v. The State 2021 SCMR 198; Shafa Ullah Khan v. The State and another 2021 SCMR 2005; Mushtaq Ahmad v. The State and another 2020 SCMR 474; Ajab Khan v. The State 2022 SCMR 317 and Muhammad Sarfraz v. The State and others 2017 SCMR 1874 ref.

Mustaq Ahmed v. The State 2020 SCMR 474; Hussain Shah v. The State PLD 2020 SC 132; Mehboob-Ur-Rehman v. State 2010 MLD 481; Muhammad Hanif v. The State 2003 SCMR 1237 and Shabbir Hussain's case 2021 SCMR 198 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---No contradictions in the statements of witnesses---Prosecution case was that two kilograms charas was recovered from the possession of the accused---No major contradictions in the evidence of the witnesses were found and minor contradictions which did not affect the materiality of the evidence could be ignored---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal was accordingly dismissed.

Zakir Khan v. State 1995 SCMR 1793 rel.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of the recovered substance proved---Prosecution case was that two kilograms charas was recovered from the possession of the accused---Record showed that the recovered narcotics were sealed on the spot and kept in safe custody at the malkhana from the time of their recovery to the time when they were taken for chemical analysis two days later in sealed condition as confirmed by the chemical report---No suggestion of tampering with the same had been made---Recovered narcotics were kept in the malkhana and on the next day were taken for chemical examination by police witness in sealed condition---Chemical report was positive and all the required protocols were carried out---Circumstances established that the prosecution had proved its case beyond reasonable doubt against the accused---Appeal was accordingly dismissed.

Zahid and Riaz Ali v. State 2020 SCMR 590 rel.

Agha Waqar Ahmed for Appellant.

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

2024 Y L R 1425

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD SHAFI---Appellant

Versus

The STATE---Respondent

Criminal Jail Appeal No. 506 of 2021, decided on 15th September, 2022.

(a) 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---Prosecution case was that 25 packets of charas weighing 30 kilos and 900 grams were recovered from the rickshaw driven by the accused--- Complainant in his examination-in-chief deposed that the memo was prepared by Munshi on his dictation who was called from police station---Mashir in whose presence the memo was papered and who also signed the same as a witness in his cross-examination stated that complainant prepared the memo inside police mobile cabin on which he signed as a witness---Complainant during his cross-examination stated that no private witness was available at the place of incident therefore he made Police Officials as witnesses---Mashir/witness had deposed against such fact and stated during cross-examination that complainant did not try to associate any private person and that he called private persons but people did not cooperate---Prosecution case was that entire recovered contraband was sealed at the spot and no samples were separated from any of the slabs---Such fact was also admitted by the witnesses in their evidence but the letter issued for sending the contraband for chemical examination addressed to the incharge Chemical Examiner showed that at serial No.4 sealed sample was also mentioned as sent for chemical examination which created very serious doubt in the prosecution case---Such contradictions clearly indicated that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of arrest of accused and recovery of charas from the possession of accused had occurred as alleged by the prosecution---Both the witnesses contradicted each other on material aspects of the case---No implicit reliance could be placed in view of said contradictions on the evidence of prosecution witnesses---Appeal against conviction was allowed, in circumstances.

Ziaul Rehman v. The State 2001 SCMR 1405; Nazeer Ahmed v. The State PLD 2009 Kar. 1914; Ali Hassan v. The State PLD 2001 Kar. 369; Ahsan Marfani v. The State 2022 YLR Note 5; State through Director ANF Peshawar v. Fakhar Zaman 2019 SCMR 1122; Ibrar Ullah v. The State 2021 SCMR 128 and Mushtaq Ahmad v. The State and another 2020 SCMR 474 ref.

Muhammad Akram v. The State 2009 SCMR 230 rel.

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

----S. 9(c)---Possession of narcotic---Appreciation of evidence---Benefit of doubt---Safe custody of contraband not proved---Prosecution case was that 25 packets of charas weighing 30 kilos and 900 grams were recovered from the rickshaw driven by the accused---In the case in hand the property was sent to the Chemical Analyst through a letter by the Investigation Officer who took the property from police station to Chemical Examiner---Said letter was silent and even the report of Chemical Examiner was silent in such regard---It was only mentioned that the property was received through a letter of the Investigating Officer---Presumption could be drawn that the prosecution failed to produce the witness who brought the property/ contraband for chemical examination and its failure cut the chain of evidence necessary to prove the case against the accused in terms of safe custody---Furthermore no malkhana entry was produced nor head of the malkhana was examined---In other words the prosecution had not proved the safe transmission of the property to the Chemical Examiner which created serious doubt in its case---Complainant handed over the contraband to the Investigation Officer on 15-12-2020 and the same was sent for chemical examination on 16-12-2020 but where it remained for such period the prosecution had failed to explain---Thus, the prosecution had failed to prove safe custody of the contraband---Appeal against conviction was allowed, in circumstances.

Mst. Razia Sultana v. The State and another 2019 SCMR 1300 and Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa 2019 SCMR 2004 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---For extending benefit of doubt, it is not necessary that there should be multiple circumstances creating doubt---If a single circumstance, creates reasonable doubt in a prudent mind about the guilt of accused, then he would be entitled to such benefit not as a matter of grace and concession, but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Rashid Khan and Shaikh Ikram Aziz for Appellant.

Ali Haider Saleem, Additional Prosecutor General Sindh for the State.

2024 Y L R 1436

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto amd Abdul Mobeen Lakho, JJ

BASHIR AHMED and 5 others---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Jail Appeal No. D-65, Special Anti-Terrorism Appeals Nos. D-66, D-69, D-70 and D-71 of 2022, decided on 12th December, 2022.

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

----Ss. 324, 353, 399, 402, 147 & 149---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(i)---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, making preparation for dacoity, assembling for purpose of committing dacoity, rioting, unlawful assembly, making or possessing explosives under suspicious circumstances, possessing unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt--- Non-association of private witness during the arrest of accused and recovery proceedings---Accused were charged for making murderous assault on the police party by firing, and when the accused were directed to surrender, police also made firing in retaliation, due to which two accused were injured---Prosecution case was based upon spy information and the police party had sufficient time to call independent and respectable persons of locality to witness the incident but Investigation Officer avoided the same without assigning sound reasons---Moreover, according to case of prosecution, incident had occurred at a link road; it was day time and there were possibility of presence of private persons but no private witness had been examined by prosecution---Moreover, it was a matter of record that incident occurred on 23.12.2015 at 09:30 a.m. at link road---Possibility of the private persons passing through the link road could not be excluded---Nothing was on record that Investigation Officer made efforts to call independent persons passing through the link road at the relevant time---Prosecution was bound to establish its case against the accused persons beyond any shadow of reasonable doubt by producing trustworthy evidence but in this case prosecution utterly failed to do so---Appeal against conviction was allowed, in circumstances.

Qasim and other v. The State PLD 1967 Kar. 233 rel.

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

----Ss. 324, 353, 399, 402, 147 & 149---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(i)---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, making preparation for dacoity, assembling for purpose of committing dacoity, rioting, unlawful assembly, making or possessing explosives under suspicious circumstances, possessing unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged for making murderous assault on the police party by firing and when the accused were directed to surrender, police also made firing in retaliation, due to which two accused were injured---As regards to the police encounter with sophisticated weapons from both the sides, it was not understandable that not even a scratch had been caused to the police party---On the other hand, two accused persons sustained injuries---Record showed that the incident occurred on 23.12.2015 at 09:30 a.m. at the link road but the Investigation Officer, in his evidence, deposed that at 9:30 a.m. he received directions from SSP regarding the encounter---In order to satisfy the Court, it was duty of the prosecution to produce the record of SSP office regarding communication between SSP and Investigation Officer but official record/entry had also not been produced before the Trial Court---Appeal against conviction was allowed, in circumstances.

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

----Ss. 324, 353, 399, 402, 147 & 149---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Sindh Arms Act (V of 2013), S. 23(i)---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, making preparation for dacoity, assembling for purpose of committing dacoity, rioting, unlawful assembly, making or possessing explosives under suspicious circumstances, possessing unlicensed weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Safe custody of the recovered explosive substance not established---Accused were charged for making murderous assault on the police party by firing and when the accused were directed to surrender, police also made firing in retaliation, due to which two accused were injured---No evidence had been produced before the Trial Court to satisfy the Court regarding safe custody of explosive material excluding possibility of manipulation---In the present case Bomb Disposal Unit Expert had not been examined by prosecution---Appeal against conviction was allowed, in circumstances.

Kamal Din alias Kamala v. The State 2018 SCMR 577 ref.

Kamal Din alias Kamala v. The State 2018 SCMR 577 and Momin Ali and others v. The State 2020 YLR 1160 rel.

(d) Criminal trial---

----Conviction---Scope---Guilt against the accused must rest surely and firmly on the evidence produced in the case and inference of the guilt may irresistibly be drawn from the evidence on the record.

(e) Criminal trial---

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

Muhammad Akram v. The State 2009 SCMR 230 rel.

Ms. Aisha Saeed for Appellants (in Spl. Anti-Terrorism Jail Appeal No.D-65 and Special Anti-Terrorism Appeals Nos.D-69, 70 and 71 of 2022).

Abdul Aziz Kanhar for Appellant (in Spl. Anti-Terrorism Appeal No.66 of 2022).

Zulfiqar Ali Jatoi, Additional Prosecutor General.

2024 Y L R 1451

[Sindh (Hyderabad Bench)]

Before Muhammad Faisal Kamal Alam, J

Dr. IKRAM BAIG---Petitioner

Versus

6TH ADDITIONAL SESSIONS JUDGE, HYDERABAD and others--Respondents

Constitution Petition No. S-362 of 2020, decided on 6th November, 2023.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Gold ornaments, return of---Proof---Misreading and non-reading of evidence---Petitioner/ex-husband was aggrieved of concurrent findings of two Courts below in favour of respondent/ex-wife directing him to return 25 Tolas of Gold---Validity---Impugned finding to return 25 Tolas of gold to respondent/ex-wife was not correct---Such finding did not confirm with record produced in proceedings and was contrary to record---High Court set aside such finding in the judgment as the same was not proper exercise of jurisdiction vested in two Courts below---High Court remanded the matter to Family Court to decide issue of 25 Tolas of gold---Constitutional petition was allowed accordingly.

Farhad Ali Abro for Petitioner.

Peeral Majeedano for Respondent No.3.

2024 Y L R 1454

[Sindh (Sukkur Bench)]

Before Yousuf Ali Sayeed, J

GUL MUHAMMAD---Applicant

Versus

KAIMUDDIN---Respondent

Civil Revision No. 47 of 2012, decided on 17th November, 2017\

Limitation Act (IX of 1908)---

----First Sched. & Art. 10---Pre-emption right---Limitation---Concurrent findings of facts by two Courts below---Suit for recovery of possession on the basis of pre-emption filed by petitioner/plaintiff was dismissed by Trial Court and Lower Appellate Court concurrently as the same was barred by limitation---Validity---Suit was filed several months after the lapse of one year period to be reckoned with reference to the date of registration of deed---Such suit was barred under Art. 10 of First Schedule to Limitation Act, 1908---High Court in exercise of revisional jurisdiction declined to interfere in judgments passed by two Courts below on the point of limitation, as there was no illegality or material irregularity---Revision was dismissed, in circumstances.

Khushi Muhammad v. Abdul Shakoor 1987 SCMR 1473 and Mst. Zubeda Begum v. Allah Ditta 1986 CLC 855 rel.

Applicant in person.

Tariq Hanif Mangi for Respondent.

2024 Y L R 1461

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Abdul Mobeen Lakho, JJ

ABDUL JABBAR alias JABI---Appellant

Versus

The STATE---Respondent

Special Anti-Terrorism Criminal Appeal No. D-45 of 2021, decided on 12th December, 2022.

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

----Ss. 302(b), 324, 353, 395, 114, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dacoity, abettor present at the time of commission of offence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Co-accused acquitted on same set of witnesses---Accused was charged that he along with his co-accused committed murder of a Police Constable and robbed his official weapon---Record showed that three co-accused had already been acquitted by the trial Court by disbelieving the evidence of the prosecution witnesses and conviction of the accused on same set of evidence, without independent corroboration, was not sustainable in law---Appeal against conviction was allowed, in circumstances.

Muhammad Saleem v. The State 2010 SCMR 374; Riaz Ahmed v. The State 2010 SCMR 846; Mureed Hussain v. The State through Prosecutor General Sindh 2014 SCMR 1689 and Shahbaz v. The State 2019 PCr.LJ 1719 ref.

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

----Ss. 302(b), 324, 353, 395, 114, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, dacoity, abettor present at the time of commission of offence, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Eye-witness failing to prove his presence at the time and place of incident---Accused was charged that he along with his co-accused committed murder of a Police Constable and robbed his official weapon---Perusal of the station diary reflected that all the major details regarding the incident were mentioned in the dairy but the name of accused did not transpire in the station diary---However, name of the accused had been mentioned by the police in FIR---Sole eye-witness could not explain his presence at the time of incident---Said witness deposed that at the time of actual occurrence, he had gone for urinating---Eye-witness allegedly heard the gunshot and immediately returned back and saw the accused---Story as narrated by the said witness did not appeal to a prudent mind---Evidence of the said witness was not believable as question was how he escaped if the incident had actually taken place in the manner as narrated by the Police Constable, who was sole eye-witness of the incident---Said evidence was neither trustworthy nor confidence inspiring---Appeal against conviction was allowed, in circumstances.

Falak Sher v. The State 1995 SCMR 1350 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If there was a single circumstance, creating reasonable doubt in a prudent mind about the guilt of the accused, 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.

Ghulam Murtaza Korai for Appellant

Zulifqar Ali Jatoi, Additional P.G. for the State.

2024 Y L R 1474

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

MUHAMMAD QASIM BHUTTO---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-35 of 2016, decided on 14th April, 2022.

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

----Ss. 409 & 381---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, theft by clerk or servant or property in possession of master, criminal misconduct---Appreciation of evidence---Inordinate delay in lodging of the FIR---Accused was charged for misappropriating cash of Rs. 703,033/- and various articles---In the present case, the offence was allegedly committed between 1996 and 1999, but the FIR was lodged in the year 2000---In the FIR, the time of occurrence had been shown as "Years 1996 to 1999", while the date and time of report had been shown as "30.06.2000, at 10.00 hours"---However, very surprisingly, in the fifth column of the FIR, which was meant for recording any delay, it was mentioned that there is "no delay"---As per record, it could be seen that there was inordinate delay in lodging of the FIR, as the offence was alleged to have been committed during years 1996 to 1999 and the FIR was lodged on 30th June, 2000---No explanation for such delay was offered---However, the trial Court completely ignored such crucial lapse in the prosecution's case as well as the law laid down on the point of delay in filing of FIR---Appeal against conviction was allowed, in circumstances.

Javaid v. The State PLD 1994 SC 679; Muhammad Akram v. The State 2009 SCMR 230; Akbar Ali v. The State 2007 SCMR 486; Tariq Pervez v. The State 1995 SCMR 1345 and Rashid Ahmad v. State 2001 SCMR 41 ref.

Mehmood Ahmed and others v. The State 1995 SCMR 127 rel.

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

----Ss. 409 & 381---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, theft by clerk or servant or property in possession of master, criminal misconduct---Appreciation of evidence---Official of Anti-Corruption Establishment (ACE) acting as complainant---Propriety---Accused was charged for misappro-priating cash of Rs. 703,033/- and various articles---Perusal of the letter addressed by District and Sessions Judge to the Deputy Director, Anti-Corruption Establishment, revealed that at the time of sending that letter for lodging of the FIR against the accused as well as co-accused, no details of the case properties were provided, as the same were to be provided by Accountant of that Court---Said letter also showed that the Accountant of the District and Sessions Court was to act as complainant---However, a look at the FIR itself revealed that instead of the Accountant of the District and Sessions Court, Circle Officer, ACE, had acted as complainant, who himself recorded the FIR---Complainant to a question in his cross-examination stated that the letter of District and Sessions Judge did not disclose the nature of property and cash so embezzled, but voluntarily stated that such information was provided to him and soon thereafter he proceeded to arrest the accused---As per contents of the FIR, details of the missing case properties were provided to the complainant by the Record Keeper, however, he did not step into the witness-box---Therefore, his statement carried no evidentiary value and could not be relied upon for the purpose of convicting the accused for the said offence---It was not clarified as to why and how Circle Officer, ACE, acted as complainant in the instant case---Circle Officer, ACE, was neither an eye-witness nor an employee of the District and Sessions Court---Depositions of the prosecution witnesses revealed that none of them was present when the alleged embezzlement was committed or the amounts/case properties were allegedly misappropriated by the accused---As such, the evidence which they gave in the Court was neither heard nor seen or perceived by them, therefore, their evidence with regard to the said facts did not fall within the ambit of oral evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 409 & 381---Prevention of Corruption Act (II of 1947), S. 5(2)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Criminal breach of trust, theft by clerk or servant or property in possession of master, criminal misconduct---Appreciation of evidence---Withholding material witness---Effect---Accused was charged for mis-appropriating cash of Rs. 703,033/- and various articles---As per record, the main person who took charge of the Record-Room from the present accused and allegedly reported the matter regarding missing of case properties as well as shortage in cash, was not produced as a witness by the prosecution before the Trial Court---As per the FIR, said witness was the person who provided the details regarding the missing case properties; however, he was not examined by the prosecution without any valid reason---Non-examination of such witness left a gaping hole in the prosecution case---Investigating Officer of the case was not examined before the Trial Court---ASI, ACE, during his deposition stated that Investigating Officer was paralyzed and could not appear before the Court---Said witness was well-conversant with the signature and hand-writing of Investigating Officer---Said witness stated that the Investigating Officer recorded the statements of the witnesses in his own hand-writing, which he identified---However, when Investigating Officer was available, then efforts should have been made to produce him before the Court---Said witness also stated that he was present in Court when challan was produced against the accused in Court, but that statement could not be relied upon, as he became a chance witness---Prosecution gave up another witness which further weakened the case of the prosecution as presumption would arise that if he had been examined by the prosecution, he would have not supported the prosecution case---Therefore, provisions of Art. 129(g) of Qanun-e-Shahadat, 1984 were very much attracted and benefit of same was to be given to the accused and not to the prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 409 & 381---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, theft by clerk or servant or property in possession of master, criminal misconduct---Appreciation of evidence---Co-accused acquitted on same set of evidence---Effect---Accused was charged for misappropriating cash of Rs. 703,033/- and various articles---Accused along with co-accused were jointly nominated in the FIR; however, co-accused was not tried in this case and he was separately tried---On the same set of facts, co-accused was acquitted, while the accused was convicted and sentenced---Where co-accused was acquitted on the same facts, evidence and question of law, the accused could not be deprived from the benefit of doubt on the principle of equity---Appeal against conviction was allowed, in circumstances.

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

----Ss. 409 & 381---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, theft by clerk or servant or property in possession of master, criminal misconduct---Appreciation of evidence---Non-recovery of incriminating material---Accused was charged for misappropriating cash of Rs. 703,033/- and various articles---Though there were allegations against the accused of embezzlement of a huge number of case properties, however, surprising, during investigation nothing incriminating was recovered from his possession nor the fate of such missing case properties ever came to light---Duty of the Investigating Officer was to unearth the missing properties or at least some of them and bring them before the Court to connect the accused with such misappropriation--- Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---If a slightest doubt is found in the prosecution case, the benefit of such doubt must go to the accused.

Tariq Pervez v. The State 1995 SCMR 1345 and Akber Ali v. The State 2007 SCMR 486 rel.

Athar Abbas Solangi, Qasim Bhuto (on bail) for Appellant.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

2024 Y L R 1484

[Sindh]

Before Muhammad Shafi Siddiqui and Jawad Akbar Sarwana, JJ

FEDERATION OF PAKISTAN through Engineer-in-Chief, Rawalpindi and 2 others---Appellants

Versus

Messrs AL-HASSAN TECH ENGG SVC (PVT.) LTD.---Respondent

High Court Appeal No. 134 of 2020, decided on 18th October, 2023.

Limitation Act (IX of 1908)---

----Art. 158---Arbitration award---Filing of objections--- Limitation--- Scope---Article 158 of the Limitation Act, 1908, provides the time frame of 30 days for filing objection to the Award---Said time frame is from the date of service of the filing of the Award---In the present case, objections to the Award were filed by the appellant/defendant after more than two months of service---Two grounds (load-shedding and ailment) pleaded for condonation of delay were not worth considering---Application for condonation of delay filed by the appellant was rightly dismissed, and in consequence whereof objections, which were filed beyond statutory time frame, could not be considered---No case of interference was made out in impugned judgment passed by the Single Judge of the High Court in making the Award a Rule of the Court---Appeal filed by the defendants was dismissed, in circumstances.

Superintending Engineer Communi-cation and Works Highway Circle Kohat v. Mian Faiz Muhammad & Co. Akora Khattak PLD 1996 SC 797 ref.

Qazi Abdul Hameed Siddiqui, Deputy Attorney General for Appellants.

Umair Usman Ghani for Respondents.

2024 Y L R 1489

[Sindh]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

MAQSOOD AHMED---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 563 of 2022, decided on 7th March, 2024.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence--- Safe custody of the narcotics and its transmission to Chemical Examiner not proved---Accused was charged for having 1100 grams charas---Neither complainant nor recovery witness had deposed before the Trial Court that charas was handed over to Head Moharir of the police station---Head Moharir had also been examined by the prosecution before Trial Court---Head Moharir had not deposed that from whom he received the parcel of charas for depositing the same in Malkhana---Thus, prosecution utterly failed to prove safe custody and safe transmission of the charas from the spot of recovery till its receipt by Chemical Examiner---Said chain of custody was fundamental as the report of Government Analyst was the main evidence for the purpose of conviction---Prosecution must establish that chain of custody was unbroken, safe and secure but in the present case safe custody and safe transmission could not be established--- Appeal against conviction was allowed, in circumstances.

Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhawa 2019 SCMR 2004 rel.

(b) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt---Single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right.

Tajamal Hussain v. The State 2022 SCMR 1567 rel.

Shoukat Hayat for Appellant.

Khadim Hussain, Addl. P.G. for the State.

2024 Y L R 1497

[Sindh]

Before Mohammad Karim Khan Agha and Khadim Hussain Tunio, JJ

KHALID and 2 others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 161 of 2019, decided on 2nd February, 2022.

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

----Ss.302(b), 324, 353, 186, 395 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 25---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 his public functions, dacoity, common intention, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Accused were charged that they along with their co-accused made firing upon the police party, due to which Head Constable was hit and died, and police weapon was also taken away by the co-accused persons---Perusal of record showed that the allegations levelled against the accused persons were collective; in that 30 to 35 assailants attacked upon the police party that had come to raid them---Only general allegations surfaced after a perusal of the testimonies of the witnesses and nothing was brought on record to establish a solid role played by the said two accused persons, in the commission of the offence---Both the said accused persons were empty handed when they were apprehended and prosecution had failed to prove that they had any connection whatsoever with the assailants who had attacked upon the police party---Despite there being no evidence against the said accused persons, they were convicted by the Trial Court and sentenced to imprisonment for life---After perusing the impugned judgment, it was observed that the reasoning adopted by the Trial Court mainly revolved around the accused "N" and not the other two; "S" and "K"---It was an axiomatic principle of law that mere presence of an accused person at the place of incident could never be sufficient to establish that said accused shared common intention in the commission of an offence unless evidence was brought on record to prove so---Allegation against accused "N" on the face of the record was that he had participated in the attack on the police party---Said accused was arrested on the spot and police recovered a Kalashnikov from his possession---Complainant had also recovered a total of 167.62 bore empties, the same bore as the Kalashnikov recovered from the accused "N"---Facts proved that the accused "N" had in fact shot his Kalashnikov at the place of incident---As such, the elements of Ss. 324 & 353, P.P.C., were satisfied with respect to him along with S. 25 of the Sindh Arms Act, 2013---Thus, the prosecution had failed to discharge its burden qua accused persons "S" and "K" beyond reasonable shadow of doubt---Appeal against conviction to the extent of said accused persons was allowed, in circumstances.

Usman alias Kaloo v. The State 2017 SCMR 622; Zahir Yousaf and another v. The State and another 2017 SCMR 2002; Tahir Mehmood alias Achoo v. The State and another 2018 SCMR 169; Muhammad Abrar v. The State and another 2014 YLR 537; Hakim Khan v. The State 2013 SCMR 777; Asif v. The State 2020 SCMR 610 and Muhammad Ashraf v. The State 2011 SCMR 1046 ref.

Hassan v. The State 1969 SCMR 454; Ayub Masih v. The State PLD 2002 SC 1048; Hashim Qasim and another v. The State 2017 SCMR 986 and Zahid

and another v. The State 2020 SCMR 590 rel.

(b) Criminal trial---

----Minor contradictions in evidence---In consequential---Every contradiction can not take place of a material contradiction and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss.302(b), 324, 353, 186, 395 & 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 his public functions, dacoity, common intention, act of terrorism---Appreciation of evidence---Act of murder and terrorism, applicability of---Accused were charged that they along with his co-accused made firing upon the police party, due to which Head Constable was hit and died, and police weapon was also taken away by the co-accused persons---Matter of record that the allegations in the FIR were general in nature and were against a collective amount of 30 to 35 people---None of the prosecution witnesses deposed as to who out of those 30 to 35 people had shot at the martyred Head Constable---Nothing was brought on the record to suggest that the bullets fired by the accused "N" had hit the deceased and caused his death---No other iota of evidence was available to suggest that the accused was involved in the murder---As such, in the absence of any viable evidence, conviction under S. 302, P.P.C., could not sustain---Nothing was brought on record to suggest that the accused "N" possessed the intention, design or purpose to cause harassment to any part of the society---Prosecution witnesses failed to dispose regarding the exact place of incident and the population in the vicinity to suggest that the people in the area were harassed or frightened in any manner---For an act to be considered terrorism, it must either be an offence punishable under S. 302, P.P.C., where the victim was a Police Officer, member of the armed forces or a public servant---Even otherwise, if S. 302, P.P.C., was considered, the presence of deceased-martyr Head Constable in his official capacity was at dispute---Prosecution witness deposed that the deceased was not posted at the given place of incident, as such was not considered a Police Official at the given time---Prosecution also alleged that deceased was available in his civil clothing at the time of the incident, which further strengthened the said point---However, since the conviction under S. 302, P.P.C., could not sustain, its applicability did not stand---Circumstances established that the prosecution had proved its case against the accused "N" under Ss. 324 & 353, P.P.C. & S. 25 of the Sindh Arms Act, 2013---Resultantly, conviction and sentence awarded to the said accused under S. 302(b), P.P.C., and under S. 7 of the Anti-Terrorism Act, 1997, were set-aside, however his conviction and sentence under Ss. 324 & 353, P.P.C. and S. 25 of the Sindh Arms Act, 2013 were maintained---Appeal was dismissed with said modification of sentence.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

Chaudhry Mehmood Anwar for Appellant No. 1.

Ms. Abida Parveen Channer for Appellants Nos. 2 and 3.

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

2024 Y L R 1508

[Sindh]

Before Adnan-ul-Karim Memon, J

MUHAMMAD ASHFAQ MUGHAL---Applicant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Application No. 775 of 2022, decided on 28th December, 2022

Criminal Procedure Code (V of 1898)---

----S. 516-A, Second and Third proviso---Supardari of vehicle (oil tanker), grant of---Entire property secured/seized by the investigation officer, production of---Exceptions---Scope---Second proviso of S. 516-A of the Criminal Procedure Code, 1898, empowers the Court that if dangerous drug, intoxicant, intoxicating liquor or any other substance is seized or taken into custody under any law for the time being in force, the Court either suo motu or on an application and under its supervision and control is to obtain and prepare sample of the property for safe custody and production before it or to any other Court and cause destruction of the property under a certificate issued by it in that behalf---Third proviso clarifies that on production of such sample before the Court in relation to the proceedings of the offence, the sample will represent the whole property having been produced in Court---Normally entire property secured or seized by the investigation officer is required to be produced in the Court, however, there are some exceptions to the general rule as provided under second and third provisos---Discretion vested in the Court under the said provisos is to be exercised judiciously by giving notice to all concerned and taking into consideration the peculiar facts and circumstances of each case in order to safeguard the available right of the parties---In the present case, vehicle-in-question which was filled with huge quantity of 48000 liters flammable furnace oil parked at an open space of police station which could be dangerous not only for police officials but also for people whose houses and shops were located around the police station---Petitioner was owner of the vehicle-in-question (oil tanker) as disclosed by the Investigating Officer, who had no objection if the vehicle-in-question was handed over to him (petitioner)---No other claimant of the vehicle-in-question was before the (High) Court, therefore, the same i.e. Oil tanker was directed to be released to the petitioner, with certain conditions, upon his furnishing solvent surety in the sum of Rs. 5,00,000/- (contrary to Rs. 50,00,000/- as directed by the Trial Court)---Petition, filed by the owner of the oil tanker, was allowed, in circumstances.

Abdul Mutalib for Applicant.

Khadim Hussain, Addl. Prosecutor General, Sindh for the State along with I.O. of the case.

2024 Y L R 1526

[Sindh]

Before Aftab Ahmed Gorar, J

Messrs SHABBIR TILES AND CERAMIC LTD. through Authorized Attorney---Applicant

Versus

Syed AMIR ALI and another---Respondents

Criminal Acquittal Appeal No.(S) 392 of 2018, decided on 18th October, 2022.

(a) Appeal against acquittal---

----Scope---Appeal against acquittal has distinctive features---Approach to deal with the appeal against conviction is distinguishable from appeal against acquittal because presumption of double innocence is attached in the latter case---Order of acquittal can only be interfered with, if it is found on its face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence, or is artificial, arbitrary and leads to gross miscarriage of justice---Mere disregard of technicalities in a criminal trial without resulting injustice is not enough for interference---Order/judgment of acquittal gives rise to strong presumption of innocence rather double presumption of innocence is attached to such an order---While examining the facts in the order of acquittal, substantial weight should be given to the findings of the lower Courts, whereby accused were exonerated from the commission of crime---Acquittal would be unquestionable when it could not be said that acquittal was either perverse or that acquittal judgment was improper or incorrect as whenever there is doubt about guilt of accused, its benefit must go to him and Court would never come to the rescue of prosecution to fill-up the lacuna appearing in evidence of prosecution case as it would be against established principles of dispensation of criminal justice.

Muhammad Ijaz Ahmad v. Fahim Afzal 1998 SCMR 1281 and Jehangir v. Aminullah and others 2010 SCMR 491 ref.

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

----Ss. 420, 468 & 471---Criminal Procedure Code (V of 1898), S.417(2-A)---Cheating and dishonestly inducing delay of property, forging---Appeal against acquittal---Appreciation of evidence---Benefit of doubt---Scope---Benefit of all favorable instances in the prosecution evidence must go to the accused regardless of whether he has taken any such plea or not---Evidence of the prosecution witnesses, in the present case, was neither trustworthy nor confidence inspiring nor consistent to establish accusation against the accused, therefore, the possibility of accused being falsely implicated could not be ruled out---Where more than one possibilities appear in the case, then the possibility in favour of accused is always to be preferred for simple reason that benefit of doubt is never to be extended to the prosecution and is always given to the accused---Any room for benefit of doubt in the prosecution case will go to accused and not to prosecution---Rule of benefit is essentially a rule of prudence which can not be ignored while dispending justice in accordance with law---It is better that ten guilty persons be acquitted rather than one innocent person be convicted; and this rule occupies a pivotal place in the Islamic Law---No improbability or infirmity had been noticed in impugned order of acquittal which was based on sound and cogent reasons not warranting interfering by the High Court---Appeal against acquittal was dismissed accordingly.

PLD 1973 SC 418 and 2011 SCMR 664 ref.

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

----Ss. 420, 468 & 471---Criminal Procedure Code (V of 1898), Ss. 245(1) & 417(2-A)---Cheating and dishonestly inducing delivery of property forgery---Appeal against acquittal---Acquittal---Scope---Impugned order revealed that after examining the material the Trial Court, by exercising powers under S. 245(1) of the Criminal Procedure Code, 1898, in its elaborate, well-reasoned order, arrived at the conclusion that prosecution remained unsuccessful to prove the case against the respondent/ accused and acquitted him---It is the burden of the prosecution to prove its case against the accused beyond reasonable doubt---This burden remains throughout and does not shift to the accused, who is not liable to prove a defence plea, if he takes one---In absence of any positive prosecution evidence, the accused can not be convicted---There was hardly any improbability or infirmity in the impugned order of acquittal recorded by the Trial Court, which being based on sound and cogent reasons did not warrant any interference by the Appellate/High Court---Appeal against order of acquittal was dismissed, in circumstances.

Abdul Majeed for Appellant.

Syed Meeral Shah Bukhari, Addl.P.G. Sindh for Respondents.

2024 Y L R 1531

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

BUX ALI MAZARI and another---Appellants

Versus

The STATE---Respondent

Criminal Jail Appeals Nos. S-94 of 2019 and S-25 of 2023, decided on 19th February, 2024.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(i)(a)---Qatl-i-amd, possess-ing illicit weapon---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the brother of complainant by firing---Previous enmity was the motive behind the occurrence---In instant case, ocular testimony consisted of complainant and a witness---Evidence of both the said witnesses was almost similar---Another alleged eye-witness fully supported the version of complainant and his evidence was almost on the same line as that of the complainant---From ocular testimony of said two eye-witnesses, it was evident that their evidence was consistent with each other---Witnesses were consistent on all material aspects of the incident i.e. place of incident, date and time of incident, number and locations of injuries allegedly sustained by the deceased and also regarding motive and old enmity between the parties---There seemed loophole/flexibility in their evidence---From perusal of the evidence of Medical Officer, it seemed that medical evidence was consistent with ocular account of the incident---Eye-witnesses had deposed that deceased had sustained two firearm injuries i.e. one on the left side of his chest and the other on his right foot and both the injuries were through and through---Such assertion of the eye-witnesses was confirmed by the medical evidence which also showed aforesaid two injuries plus two exit wounds, as a result of those injuries---Both, the ocular as well as medical evidence, were also consistent on the point that all the injuries had been caused by firearm weapon---Likewise, as per both the eye-witnesses, the deceased died immediately at the spot after sustaining injuries, which fact was also confirmed by medical evidence which showed that death of the deceased was instantaneous---Similarly, duration between the death and the postmortem examination as per ocular testimony and the medical evidence, was also almost same---Appeal against conviction was dismissed, in circumstances.

Qasim Shahzad and another v. The State and others 2023 SCMR

117; Muhammad Bashir and another v. The State and others 2023 SCMR 190; Nasir Ahmed v. The State 2023 SCMR 478 and Azhar Hussain and another v. The State and others 2022 SCMR1907 ref.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(i)(a)---Qatl-i-amd, possess-ing illicit weapon---Appreciation of evidence---Recoveries from the spot---Forensics---Accused was charged for committing murder of the brother of complainant by firing---Record showed that Investigating Officer had collected six empties of T.T. pistol from the spot and dry blood-stained earth of deceased---Investigating Officer also effected recovery of crime weapons at the pointation of accused---Investigating Officer produced Chemical Analyst's report which indicated that the articles referred to the Chemical Analyst in present case, were found stained with human blood---Appeal against conviction was dismissed in circumstances.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(i)(a)---Qatl-i-amd, possess-ing illicit weapon---Appreciation of evidence---Motive proved---Accused was charged for committing murder of the brother of complainant by firing---Previous enmity was the motive behind the occurrence---Both the eye-witnesses, who were brother and cousin of the deceased respectively, had deposed in their respective evidence that the relative of accused was a notorious criminal/thief and about 18 years ago he had entered in their village with intention to commit theft; however, he expired in an encounter between accused and the villagers---Thereafter, a Faisla was conducted by the nekmards of the locality and a fine of Rs.10,00,000/-(Rupees Ten Lac only) was imposed upon the complainant party for causing death of deceased, which amount was paid by them to the legal heirs of deceased---According to complainant, despite that, accused and others, used to demand further amount of rupees ten lac from them and issued threat that in case of their failure to pay the same, they would commit murder of complainant party---Due to old enmity and grudge, the accused caused murder of deceased---Said fact regarding old enmity and Faisla having taken place between the parties, had also been admitted by the accused in their statements recorded under S. 342, Cr.P.C.---Appeal against conviction was dismissed, in circumstances.

(d) Criminal trial---

----Related witnesses, evidence of---For the purpose of conviction, mere relationship of the prosecution witnesses with the deceased could not be a ground to discard the testimony of such witnesses.

Zulfiqar Ahmed and another v. State 2011 SCMR 492; Zakir Khan and others v. State 1995 SCMR 1793; Farooq Khan v. State 2008 SCMR 917; Shamsher Ahmed v. State 2022 SCMR 1931; Azhar Hussain v. State 2022 SCMR 1907; Sajid Mahmood v. State 2022 SCMR 1882; Gul Zarin v. Kamaluddin 2022 SCMR 1085 and Mohammad Sadiq v. State 2022 SCMR 690 rel.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(i)(a)---Qatl-i-amd, possess-ing illicit weapon---Appreciation of evidence---No probability of substitution of a real offenders with innocent person---Accused was charged for committing murder of the brother of the complainant by firing---Admittedly, deceased was real brother of the complainant/eye-witness and cousin of another eye-witness---Defence had raised a plea that complainant party had enmity with other communities, therefore, the deceased was done away by some other person of such community; however, the complainant due to old enmity with present accused, had involved them falsely in this case---However, it did not appeal to mind of a prudent man that as to why the complainant party would spare the real murderers of their beloved and close relative, and instead involve innocent persons---If they would have booked the real culprits, as per defence version, and simultaneously they would have also roped the present accused in order to thrust their grudge/old enmity with them, then there might have been some weight in defence version but it did not appeal to common sense that complainant party would totally and fully exonerate and spare the real culprits and instead would involve innocent persons in their place---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(i)(a)--- Qatl-i-amd, possessing illicit weapon---Appreciation of evidence--- Inconsistencies and discrepancies---Accused was charged for committing murder of the brother of the complainant by firing---In instant case, there was a strong ocular version of the incident given by the eye-witnesses and their statements were consistent with each other on all material aspects of the case, thus minor inconsistencies and discrepancies could be ignored and preference was to be given to the strong and convincing ocular version---Of course, in instant case, there were certain discrepancies and inconsistencies in the investigation/prosecution case---Had there been a case of weak, impeachable and untrustworthy prosecution evidence, such discrepancies and lacunas could surely have weakened the prosecution case and the accused would have been entitled to be extended the benefit thereof---However, in view of unimpeachable, trustworthy and confidence inspiring ocular testimony of two eye-witnesses corroborated by the medical evidence, recovery of crime weapon, circumstantial evidence and proved motive, such discrepancies and lacunas were ignorable--- Even otherwise, any irregularity or illegality committed during the investigation in a case having unimpeachable and trustworthy evidence due to inefficiency of the police/Investigating Agency would not affect the trial---Appeal against conviction was dismissed, in circumstances.

Sheheryar Hussain and others v. The State 2021 PCr.LJ 647 and Mohammad Abideen v. State 2021 PCr.LJ 78 rel.

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

----S. 302(b)---Sindh Arms Act (V of 2013), S. 23(i)(a)---Qatl-i-amd, possessing illicit weapon---Appreciation of evidence---Delay in lodging the FIR not attributable to complainant party---Accused was charged for committing murder of the brother of complainant by firing---Record showed that immediately after the incident, the complainant party had taken dead body of deceased to the police station and had informed the police about the incident wherefrom they were referred to Hospital, where autopsy was conducted on the dead body and thereafter the dead body was handed over to them and then after burial and funeral ceremonies, the complainant's FIR was lodged---In that regard statement of Police Constable was also relevant who had categorically stated that on 29.7.2015 when he was present at the police station, a witness had come there and informed him that some Mazaris had committed murder of deceased, therefore, he went to the hospital along with his subordinate staff and checked the dead body of deceased and prepared such mashirnama in presence of mashirs and also prepared inquest report in presence of same mashirs---Said police official then gave letter to a Police Constable for postmortem---In his cross-examination, said witness had admitted that eye-witness had come on 29.7.2015 at 4.40 pm for giving information but he did not register the FIR and instead only made such entry---Complainant, who was said to be an eye-witness of the incident, in his evidence deposed that after taking dead body to the hospital, they had informed the police about the incident and that postmortem was conducted in presence of police and the mashirs---From that, it was clear that the complainant party immediately after taking the dead body of the deceased to the hospital, informed the police about the incident, but despite that FIR was not registered by the police at that time---In such view of matter, it seemed that when police itself did not register the FIR immediately upon receiving information, then the delay, as pointed out by the defence, could not be attributed to the complainant and the same would not be fatal to the prosecution case---Appeal against conviction was dismissed, in circumstances.

Abdul Khalique v. State 2020 SCMR 178 rel.

Asif Ali A. Razzak Soomro for Appellants (in both Appeals and Appellant Dilijan in Appeal No.94 of 2019)

Abdul Ghani Bijrani for the Complainant.

Ali Anwar Kandhro, Addl. Prosecutor General, Sindh for the State.

2024 Y L R 1548

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha, J

MEER MUHAMMAD---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. S-174 of 2017, decided on 27th June, 2023.

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

----S. 295(b)--- Willfully defiling, damaging or desecrating a copy of the Holy Quran---Appreciation of evidence---Benefit of doubt---Accused was charged for throwing the verses of Holy Quran in a muddy nalla---Record showed that the accused belonged to one religious sect whilst the eye-witnesses belonged to another religious sect who were at odds against each other---Moreover, it did not appeal to logic, reason or common sense that the accused after throwing verses of the Holy Quran in the dirty nalla, which was a very serious offence, would wait around on his motor bike to be apprehended by the eye-witnesses who had seen his act from half a kilometer and two acres away respectively---Natural human conduct would have lead him to immediately leave the crime scene---Many persons came at the time of the arrest of the accused but none of them were called as witnesses--- In such like crimes it was usual for the angry mob to attack the culprit out of strong religious sentiment / fervor, however in this instance no such attack was made which did not tie in with the usual reaction of a large crowd in such like cases---Appeal against conviction was allowed, in circumstances.

Muhammad Sadiq and another v. The State 2003 YLR 2114; Mujeeb ur Rehman v. The State 2018 YLR 389; Doulat v. The State PLD 2013 Sindh 223; Muhammad Bakhsh v. The State PLD 1956 SC 420; Mst. Asia Bibi v. The State PLD 2019 SC 64 and Muhammad Mansha v. The State 2019 SCMR 64 ref.

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

----S. 295(b)--- Willfully defiling, damaging or desecrating a copy of the Holy Quran---Appreciation of evidence---Benefit of doubt---Recovery of verses of Holy Quran---Doubtful---Accused was charged for throwing the verses of Holy Quran in a muddy nalla---Quranic verses which were thrown in the dirty nalla when produced before the Trial Court in an unsealed condition were found to be waterless---Photos of the wardat showed that the wardat was full of dirty water and as such it was impossible for the Quranic verses which were recovered from the dirty nalla to be waterless---Such verses would have been covered in dirt and ruined in large part by being soaked in water---Evidently, the complainant four days after the incident, took fresh copies of the Quranic verses to the police under seal, which was corroborated by other witnesses who were declared as hostile witnesses---Thus, it was found that no Quranic verses were actually recovered at the scene and that such verses were handed over to the police four days later in waterless condition and used by the complainant and the police to falsely implicate the accused in this case out of religious enmity---Appeal against conviction was allowed, in circumstances.

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

----S. 295(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Willfully defiling, damaging or desecrating a copy of the Holy Quran---Appreciation of evidence---Benefit of doubt---Withholding material evidence---Accused was charged for throwing the verses of Holy Quran in a muddy nalla---Two important eye-witnesses, including the arresting officer, were given up by the prosecution without explanation and as such the inference under S.129(g) of Qanun-e-Shahadat Order, 1984, was that they would not have supported the prosecution case---Appeal against conviction was allowed, in circumstances.

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

----S. 295(b)---Criminal Procedure Code (V of 1898), S. 164---Willfully defiling, damaging or desecrating a copy of the Holy Quran---Appreciation of evidence---Benefit of doubt---Confession of accused before Magistrate---Infirmities---Accused was charged for throwing the verses of Holy Quran in a muddy nalla---After his arrest the accused was not placed in the lock up of the Police Station but was instead placed in the quarters of SHO who produced him before the Judicial Magistrate to give his confession one day after his arrest---SHO however was not called as a witness---Accused claimed that he was pressurized by the police to confess before the Judicial Magistrate---Evidence of the Judicial Magistrate was particularly unimpressive and it appeared from his evidence that most of the procedural safeguards regarding the recording of the confession were not adhered to---After making his confession accused was handed back to the police and not sent to judicial custody---Confession was made under oath which was impermissible in law---Even the confession itself was somewhat contradictory to the prosecution evidence as in the confession the accused stated that he was arrested by a police party---There was no mention of the eye-witnesses who according to their evidence grabbed hold of him and apprehended him---Thus, voluntariness of the confession was doubtful and as such no reliance could be placed on it---Significantly, no question was put to the accused regarding his judicial confession in his S.342, Cr.P.C statement and the Court could place no reliance on it under such circumstances in convicting the accused---Appeal against conviction was allowed, in circumstances.

Tariq Pervaiz v. The State 1992 PCr.LJ 955 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Accused was entitled to benefit of doubt as a matter of right and not concession.

Badal Gahoti for Appellant.

None present despite direct intimation notice to the Complainant's Counsel for today.

Ms. Sana Memon, A.P.G. for the State.

2024 Y L R 1562

[Sindh]

Before Aftab Ahmed Gorar, J FAYYAZ ALI and 9 others---Applicants

Versus

The STATE---Respondent

Criminal Bail Applications Nos. 99 and 182 of 2022, decided on 11th October, 2022.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 365, 395, 324, 337-A(1), 147, 148 & 149---Abduction for ransom, dacoity, shajjah-i-khafifah, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, grant of---Further inquiry---Improvement by complainant party---Co-accused declared innocent---Effect---Admittedly, the FIR had been lodged with an unexplained delay of twenty days and no iota of evidence was available against the petitioners---Petitioners and the complainant were residing in the same locality---Record showed that in the FIR the complainant had named yet another person as accused (other than the petitioners) who later on was let off by the Investigation Officer as during investigation some muhallah people had stated that he (another accused) was not present at the time of incident which fact was also confirmed by the complainant---If said another accused was present, question was as to why the complainant later on sated that that he was not present, which created doubt in the prosecution story and required further inquiry---Guilt or innocence of the petitioners was yet to be established as it would depend on the strength and quality of the evidence that would be produced by the prosecution and the defense before the Trial Court---No complaint of misuse of concession of bail or tampering of record had been pointed out while the petitioners were regularly appearing in the High Court and Trial Court---Petitioners, admittedly, had not violated any of the well-settled conditions on the basis of which their bail could be cancelled---At bail stage deeper appreciation of evidence and circumstances appearing in the case were not permitted and only tentative assessment was to be made, however, where accused had satisfied the Court that there were reasonable grounds to believe that he was not guilty of such offence, then the Court must release him on bail---Bail was allowed to the petitioners/ accused persons, in circumstances.

Yar Muhammad v. The State and another 2004 YLR 2230 ref.

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

----S. 498---Cancellation of bail---Principle for cancellation/recalling of bail---Bail may be cancelled; (i) If the bail is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice; (ii) the accused has misused the concession of bail in any manners; (iii) accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses; (iv) there is likelihood of absconsion of the accused beyond the jurisdiction of court; (v) the accused has attempted to interfere with the smooth course of investigation; (vi) accused has misused his liberty while indulging into similar offence; and (vii) some fresh facts and material has been collected during the course of investigation with tends to establish guilt of the accused.

Shahid Arshad v. Muhammad Naqi Butt 1976 SCMR 360 and Samiullah v. Laiq Zada 2020 SCMR 1115 ref.

Javaid Ahmed Rajput along with Applicants (in Crl.B.A. No.99 of 2022).

Abdul Rauf along with Applicants (in Crl.B.A. No.182 of 2022).

Shahid Akhtar and Gul Afshan Junejo for the Complainant.

Ms. Rahat Ehsan, Additional Prosecutor General Sindh for the State.

2024 Y L R 1565

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Abdul Mobeen Lakho, JJ

NADIR KHOSO and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. S-129 of 2019, Criminal Acquittal Appeals Nos. D-123 of 2019, D-43 of 2021 and Criminal Revision Application No. D-67 of 2019, decided on 5th July, 2023.

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

----Ss. 302(b), 114, 147, 148 & 149---Qatl-i-amd, abettor present when occurrence took place, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of thirty three hours in lodging the FIR--- Possibility of fake implication---Accused were charged for committing murder of the son of complainant by firing---Motive behind the occurrence was stated to be that accused were involved by the complainant party in a false case---Record showed that there was delay of 33 hours in lodging of the FIR---From contents of the FIR it was crystal clear that victim after receiving injuries had died at the spot and his dead body was taken to police station by complainant party---It was not understandable that when deceased had succumbed to his injuries at the spot and his dead body was taken to police station then what prevented the complainant to get the FIR registered when he had taken the dead body to police station---No plausible explanation had been furnished by the prosecution for such long delay which created doubt regarding false involvement of the accused in the case---Thus, possibility of deliberation and consultation on the part of complainant party and false implication of the accused could not be ruled out---Appeal against conviction was allowed, in circumstances.

Ayub Masih v. The State PLD 2002 SC 1048 and Sabir Hussain v. The State 2022 YLR 173 rel.

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

----Ss. 302(b), 114, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, abettor present when occurrence took place, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Alleged eye-witness not produced before Trial Court---Effect---Adverse presumption against prosecution---Accused were charged for committing murder of the son of complainant by firing---One witness was alleged to have seen the incident and his statement under S. 161, Cr.P.C., was also recorded by the police, thus he was an important eye-witness of the incident---However, said witness was not produced before the Trial Court and was given up by the prosecution on the basis of application moved by the complainant---It was not understandable that as to why such an important and essential eye-witness was given up by the prosecution merely on the whims of the complainant---Said fact was injurious to the prosecution case as despite availability of essential witnesses, non-examination of such witnesses in the case raised an inference that in case such witness had been examined, he would have deposed against the prosecution, as envisaged under Art. 129(g) of Qanun-e-Shahadat Order, 1984---Appeal against conviction was allowed, in circumstances.

Abdul Ghani v. The State 2022 SCMR 2121 rel.

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

----Ss. 302(b), 114, 147, 148 & 149---Qatl-i-amd, abettor present when occurrence took place, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Rule of consistency---Co-accused acquitted same set of evidence---Accused were charged for committing murder of the son of complainant by firing---Record showed that previously one accused was convicted by the Trial Court, whereas two co-accused persons were acquitted and complainant did not challenge their acquittal before the higher forum---Subsequently convicted accused challenged his conviction before the Court and he too was acquitted and such acquittal judgment was maintained by Supreme Court of Pakistan---Rule of consistency demanded that if an accused has been acquitted from the charge by disbelieving evidence of prosecution witnesses, other accused charged with similar allegations is also entitled to have same concession/treatment and the evidence of that particular witness can not be made basis for convicting other accused---Appeal against conviction was allowed, in circumstances.

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

(d) Criminal trial---

----Conviction--- Recovery of crime weapon---Scope---Preference is to be given to the ocular testimony and not to recovery of crime weapon---Even if no recovery is made but the ocular testimony is trustworthy and of unimpeachable nature, then the accused can be convicted without there being recovery of any crime weapon from his possession---Recovery is only a corroboratory piece of evidence.

Ajmal and others v. The State and others 2016 YLR 623 and Khush Bar v. The State 2018 PCr.LJ Note 63 rel.

(e) Criminal trial---

----Absconsion--- Scope--- Mere absconsion is no proof of guilt.

Shahzad Akhtar v. Mohammad Azam 2019 MLD 551 rel.

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

----Ss. 302(b), 114, 147, 148 & 149---Qatl-i-amd, abettor present when occurrence took place, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Discrepancies and lacunae in the prosecution case---Accused were charged for committing murder of the son of complainant by firing---From perusal of the record it seemed that there were certain discrepancies and lacunas in the prosecution case which created doubts in the prosecution case---Section 161, Cr.P.C. statements of the witnesses were recorded after a delay of about two days which was fatal to the prosecution case---Sketch prepared by the Tapedar showed that the place of incident was a metalled road, therefore recovery of blood stained earth from the road was also doubtful---Last worn clothes of the deceased were not sent to the Chemical Examiner for examination and report---Neither the tractor nor the tractor seat where the deceased after sustaining injuries was lying, was produced and adduced in evidence---Although it was natural that driving chair would have been stained with blood but no blood was secured therefrom---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Conviction---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 Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---Accused is entitled to be extended benefit of doubt as a matter of right and not as a grace or concession---Accused cannot be deprived of benefit of doubt merely because there is only one circumstance which created doubt in the prosecution story.

Ahmed Ali and another v. The State 2023 SCMR 781 rel.

(i) Appeal against acquittal---

----Double presumption of innocence---Scope---Accused before his conviction is presumed to be innocent---If after trial, accused is acquitted, then in such an eventuality he earns double presumption of innocence---Thus, an acquittal judgment or order normally does not call for any interference and the same can be interfered with only in exceptional cases.

Ahmed Omar Sheikh and others's case 2021 SCMR 873 and Sher Muhammad Khaskheli v. 2nd Assistant Sessions Judge and 6 others 2021 YLR 1759 rel.

Shabbir Ali Bozdar for Appellant (in Crl. Appeal No. S-129 of 2019 and Respondent in Cr. Rev. Application No.D-67 of 2019).

Abdul Rasheed Kalwar, Ghous Bux Shah Kaheri and Ajeebullah Junejo for Respondents (in all four cases).

Qurban Ali Malano for the Complainant (in all four cases).

Aftab Ahmed Shar, Addl. Prosecutor General, Sindh for the State.

2024 Y L R 1584

[Sindh]

Before Muhammad Faisal Kamal Alam, J

SHAHID and another---Plaintiffs

Versus

Mst. ZAINAB and others---Defendants

Suit No. 41 of 2019 and C.M.As. Nos. 250 of 2019, 9729 of 2021, 13058 of 2022, decided on 28th February, 2023.

Limitation Act (IX of 1908)---

----First Sched., Art.120---Specific Relief Act (I of 1877), Ss. 42 & 54--- Civil Procedure Code (V of 1908), O. VII, R. 11--- Suit for declaration and injunction---Rejection of plaint---Cause of action---Bar of limitation---Plaintiffs claimed to be owners of suit property and that predecessor-in-interest of defendants was a Benami owner---Validity---Actual transaction took place in year 1992 when suit property was purchased in the names of predecessor-in-interest of parties who were wives of two business partners---Transaction was first time challenged by plaintiffs in that year 2018---It is also a common practice and custom of our society that a property is purchased in the name of wife merely to provide her a sense of security---Title of suit property was never questioned or title was never threatened even after passage of 15 (fifteen) years after the death of father of plaintiffs---Provision of Art. 120 of Limitation Act, 1908 started running from the date of death of father, that was, 04-09-2003 and not April, 2018---High Court rejected the suit as it was barred by Limitation Act, 1908---Application was allowed, in circum-stances.

Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569 rel.

Miss. Qamar Ali v. Syed Nadir Ali and others 1993 CLC 605; Ghulam Muhammad through Legal Heirs v. Mst. Saban and 3 others 1993 MLD 2539 and Muhammad Sajjad Hussain v. Muhammad Anwar Hussain 1991 SCMR 703 ref.

Zahid Hussain for Plaintiffs.

Javed Ahmed Qazi and Sadaf Gul for Defendants Nos.1, 3 and 4.

Fawad Saeed for Defendant No.6.

2024 Y L R 1597

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

NADIR ALI alias BABAR and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. D-50 and Confirmation Case No. 10 of 2021, decided on 13th September, 2022.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account corroborated by witnesses---Accused were charged for committing murder of the son of complainant by inflicting hatchets and knives blows---Prosecution had examined an eye-witness who while supporting the case narrated the whole story of the case as mentioned in the FIR---Said witness was cross-examined at some length but defence could not find any substance to discard his evidence---Direct evidence furnished by eye-witness was sufficient to prove the case, however the same was corroborated by the evidence of two witnesses before whom the deceased made dying declaration when he was alive and was in his senses, which too proved that when he was shifted to hospital he was sitting on a motorbike---Further the evidence was corroborated by a witness in whose presence the accused persons were arrested and on their pointation police recovered crime weapons from a hidden place which no one else knew about---However due to certain mitigation circumstances death sentence was altered to life imprisonment---Appeal was dismissed with such modification in sentence.

G.M. Niaz v. The State 2018 SCMR 506; Zafar v. The State 2018 SCMR 326; Zeeshan alias Shani v. The State 2012 SCMR 428; Muhammad Asif v. The State 2017 SCMR 486; Abdul Khaliq v. The State 1996 SCMR 1553; Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570; Pathan v. The State 2015 SCMR 315; Khan Akbar v. Mohib Gul 2001 PCr.LJ 1617; Majeed v. The State 2010 SCMR 55 and Muhammad Ahmed (Mehmood Ahmed and another) v. The State 2010 SCMR 660 ref.

Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

(b) Criminal trial---

----Statement of sole eye-witness---Conviction---Scope---Sole evidence of a material witness i.e. an eye-witness is always sufficient to establish the guilt of accused, if the same is confidence inspiring and trustworthy and supported with other independent source of evidence because the law requires quality of evidence not quantity to prove the charge.

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) 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---Dying declaration---Reliance---Accused were charged for committing murder of the son of complainant by inflicting hatchets and knives blows---Record showed that dying declaration was made by the deceased before two persons at two different places while he was on the way to hospital---Eyewitness stated that deceased himself narrated the facts to two witnesses in respect of injuries caused to him by the accused persons---One of the witnesses stated that at the time of incident he was standing at a grocery shop where he had seen three persons on motorcycle driven by "M"; injured was sitting in between "M" and "S"; he had seen that victim was bleeding and injured and on his query disclosed that he was coming from his work where he was attacked by accused with a hatchet and with knives by other two accused persons---Other witness stated that on 09-01-2020 he was returning from a factory and was available outside his house and saw "M" and "S" bringing victim where he rushed and inquired from the victim as to who had done this to which the victim replied that accused persons had caused injuries with hatchet and knives---Said witnesses took a motorcycle for taking the injured to the hospital---During cross-examination he negated the suggestion of defence in respect of injured being in his senses at the time when he inquired from the injured victim---Said witnesses were independent witnesses having no enmity or ill-will with the accused persons nor was it so suggested during their cross-examination---In the present case dying declaration was oral and was not in writing---No particular format was required for a dying declaration and the main requirement appeared to be that it was made without influence and it was made before two independent persons by the deceased when he was alive and was in full senses---Dying declaration, thus, fulfilled all the requirements of law and it was admissible and could be relied upon---However, due to same mitigating circumstances the death sentence of accused was altered to life imprison-ment---Appeal was dismissed with such modification in sentence.

Majeed v. State 2010 SCMR 55 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence on the disclosure of accused---Reliance---Accused were charged for committing murder of the son of complainant by inflicting hatchets and knives blows---Record showed that the accused persons dug the earth at place pointed out by them and got recovered one plastic shopper in which there were two knives one with a wooden handle having blood stains and the other a flick knife also having blood stains---Two mobile phones, were also available in the plastic shopper with and them having blood stains---Accused disclosed that the knife with a wooden handle was used by him while the flick knife was used by other accused---Another accused disclosed that he had thrown a hatchet while leaving the place into a stream---As per the evidence of said witness reasonable search was made to find the hatchet but due to the presence of water, the hatchet was not found---Police Officers had sealed both knives and mobile phones in one cloth parcel and prepared the memo, which was singed---Police witness was cross-examined at some length but his evidence had not been shattered by the defence---It was not denied that recovered articles including the crime weapons were the same which were used in the commission of offence nor was it suggested that the same were foisted upon the accused persons---Non-recovery of hatchet was also not helpful for the accused persons to acquit them in the offence which otherwise was proved by the prosecution by producing reliable, trustworthy and confidence inspiring evidence---If charge was proved by other direct, natural and confidence inspiring evidence, then non-recovery of crime weapon was not fatal to the prosecution case---However, due to mitigating circumstances the death sentence of the accused was altered to life imprisonment---Appeal was dismissed with such modification in sentence.

Sikander Teghani alias Muhammad Bux Teghani v. The State 2016 YLR 1098 rel.

(e) Criminal trial---

----Medical evidence---Scope---Medical evidence is in the nature of supporting, confirmatory or explanatory evidence to 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 person with the commission of offence---Medical evidence by itself does not throw any light on the identity of the offender---Such evidence may confirm the available substantive evidence with regard to certain facts including seat of injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence.

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) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Investigation supporting the prosecution case---Accused were charged for committing murder of the son of complainant by inflicting hatchets and knives blows---Investigation Officer had fully supported the case of prosecution who during investigation brought on record the motive for committing murder by examining a witness, and the accused persons also after their arrest disclosed the same motive to him---Investigation Officer recorded the statements under S. 161, Cr.P.C of prosecution witnesses, arrested the accused persons and during interrogation accused led him to place of incident where they committed the murder of deceased and concealed the crime weapons and on their pointation two knives used in the murder were recovered including other articles which were stained with blood---Investigating Officer got and produced Call Data Record reports of the witnesses as well as of the accused persons and came to know that the location of all those persons was same at the time of incident---Investigation Officer collected the record from the hospital to establish that at the first instant the deceased was taken to such hospital when he was alive and in injured condition---Said witness sent blood stained clothes, parcel and recovered articles for serology and also issued letters including a letter to DNA lab and collected the report of serologist which he exhibited in evidence---Said witness was cross-examined at some length but could not find any dent in his evidence as he was an independent person being a Police Official having no ill-will against the accused persons nor it was suggested against him during his cross-examination---Evidence of Police Witnesses could be safely relied upon since no allegation of enmity, bias or ill will had been made against any of them and as such they had no reason to falsely implicate the accused persons in the case---However, due to some mitigating circumstances, the death sentence of the accused was altered to life imprisonment---Appeal was dismissed with such modification in sentence.

Zafar v. State 2008 SCMR 1254 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sentence, reduction of---Mitigating circumstances---Accused were charged for committing murder of the son of complainant by inflicting hatchets and knives blows---As per prosecution evidence, there were general allegations against the accused persons of causing hatchet and knife injuries to the deceased resulting in his death---All the witnesses had deposed that the accused persons actively participated in the commission of offence and their evidence was corroborated by recoveries of the crime weapons on their pointation and the motive was also supported by medical evidence which reflected that the deceased received 08 injuries from sharp edged weapon---Prosecution has proved its case against the accused beyond any doubt, however, due to some mitigating circumstances the death sentence of accused was altered to life imprisonment, in circumstances---Appeal was dismissed with such modification in sentence.

Muhammad Riaz and another v. The State and another 2007 SCMR 1413 rel.

Wazeer Hussain Khoso for Appellants.

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

Muhammad Ali Leghari for the Complainant.

2024 Y L R 1636

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

MUHAMMAD RAHIM SAWATI and others---Appellants

Versus

The STATE---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 08, 09 of 2022, Special Criminal Anti-Terrorism Jail Appeal No. 202 of 2021 and Special Criminal Anti-Terrorism Jail Appeal Nos. 10 and 13 of 2022, decided on 8th November, 2022.

Penal Code (XLV of 1860)---

----Ss. 302(b), 201, 202, 109 & 34---Anti-Terrorism Act (XXVII of 1997), Ss. 11-N & 11-V(ii)---Criminal Procedure Code (V of 1898), S. 428---Qatl-i-amd, causing disappearance of evidence, intentional omission to give information of an offence, abetment, common intention, fund raising, directing terrorist activities---Application for adducing additional evidence in relation to the video recording of the interview of the accused---Scope---Accused were charged for committing murder of a lady who was a Director of a pilot project---Trial of the accused persons commenced on 07.11.2016 when the charge was framed and was completed on 17.12.2021 when the judgment in the trial was handed down---Trial had therefore taken about 5 years to complete and thereafter appeals were filed in December 2021 and January 2022 by the accused persons against their conviction which was about 6 years ago---Present case was a high profile case which was widely reported in both the print and electronic media---Video in question which was sought to be produced by the applicant was aired on TV News Channel in 2016 at the very initial stages of the trial as conceded by the complainant---Said video was therefore known and openly available to any member of the public from that date including the prosecution and the complainant if they had wanted to obtain it for the purpose of a trial which proceeded over a 6 year period---Person who recorded the video could have been traced out relatively easily at that time as it was a recent video and an application could have been made by the prosecution under S. 540, Cr.P.C., to the Trial Court to exhibit it through the evidence of its maker and enabled the accused persons to cross-examine it if it was deemed necessary---Authenticity of the video could also have been proven through forensic analysis as required under the law---Report of JIT clearly showed that the members of the concerned JIT had in their possession the evidence which the applicant sought now to adduce through the application---Therefore, that was not new evidence at all and was considered by a JIT whose report was exhibited by the prosecution at trial and was considered by the Trial Court---Video evidence which was sought to be adduced in evidence was not necessary as it related to the retracted confession of one of the accused persons on which the Trial Court placed reliance in convicting the accused persons---It appeared on record that one year after the trial the applicant was seeking to yet further strengthen the prosecution case with respect to such aspect of the case (i.e. the confession of one of the accused persons) when the Trial Court had already agreed with the prosecution point of view concerning the admissibility of the confession---Prosecutor himself had conceded that the additional evidence was not required as the prosecution had already relied on the best evidence being the confession of the accused as opposed to a video recording with no providence and as such it was found that it was not needed/necessary to produce such additional evidence because the Trial Court had already believed the confession of one of the accused persons despite it being retracted by the accused---Application could not be allowed for additional evidence since it was an attempt to fill in the lacunas in the prosecution case by attempting to strengthen the prosecution case---To allow the additional evidence at this late stage one year after the convictions and sentences had been handed down to the accused persons based on the particular facts and circumstances of this case would cause prejudice to the accused persons and would be in violation on Art. 10A of the Constitution---Even if the application was allowed it would further prejudice the accused by delaying their appeals by months if not years as the piece of evidence which was sought to be adduced would have to undergo stringent tests before it could even be held to be admissible based on the principles of admissibility---Application was dismissed accordingly.

Nasir Khan v. The State 2005 PCr.LJ 1; Zahira Habibullah H. Sheikh v. State of Gujarat (2004) 4 Supreme Court Cases 158; Salehon and another v. The State 1971 SCMR 260; Fazal Elahi v. The State PLD 1952 Lah. 388; Mojia Ratna v. The State AIR 1961 MP 10; Zuhrab Gul v. The State 2017 YLR 1376; Taqi v. The State PLD 1991 Quetta 39; Muhammad Shafi v. Muhammad Asghar PLD 2004 SC 875; Nawaz Khan v. Ghulam Shabbir 1995 SCMR 1007; Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) 2000 SCMR 1969; State of Gujara v. Patel Vishnubhai Chaturdas and others (R/Cr. Appeal No.19/1996 and Cr. Rev. Appl. No.2982/1995), R. B. Mithani v. State of Maharashtra AIR 1971 Supreme Court 1630; Shafiq Ahmad v. The State PLD 2008 Pesh. 100; Asfandyar and others v. Kamran and others 2016 SCMR 2084; State (through Collector of Customs)'s case 2005 YLR 3280; Dildar v. The State PLD 2001 SC 384; Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675; The State v. Ahmed Omar Sheikh 2021 SCMR 873; Sartaj and others v. Mushtaq Ahmad 2006 SCMR 1916; Aijaz Ali v. Ali Nawaz PLD 2022 Sindh 12; Hayatullah v. The State 2018 SCMR 2092; Dildar v. The State PLD 2001 SC 384; Muhammad Naveed v. The State PLD 2019 SC 669; Mazhar Naeem Qureshi v. The State 1999 SCMR 828 and Asif Jameel v. The State 2003 MLD 676; ref.

National Bank of Pakistan v. Mumtaz Ahmad 1984 PSC 297; The State v. Khaista Rahman 2013 MLD 1872; Ghulam Rasool v. The State PLD 2013 Sindh 214; Allah Wasaya v. The State 2018 MLD 489; Dildar v. State PLD 2001 SC 384; The State v. Ahmed Omar Shaikh 2021 SCMR 873 and Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 rel.

Mehmood A. Qureshi for Appellant (in Appeals Nos.202 of 2021 and 10 of 2022).

Mansoor Mir for Appellant (in Appeals Nos.08 and 09 of 2022).

Iftikhar Ahmed Shah for Appellant (in Appeal No.13 of 2022).

Faisal Siddiqui for the Complainant (in all Appeals and Applicant in C.M.A. No. 12863 of 2022).

Muhammad Iqbal Awan, Addl. Prosecutor General Sindh.

2024 Y L R 1668

[Sindh]

Before Mahmood A. Khan, J

Syed MUHAMMAD KAZIM, ADVOCATE and another---Plaintiffs

Versus

RUB RAZI CO-OPERATIVE HOUSING SOCIETY LIMITED through Honorary General Secretary/ Chief Executive and another---Defendants

Suit No. 379 of 2013, C.Ms. Nos. 3490 of 2013, 15027 of 2017, 16634 of 2018, 180, 11760 of 2019, 16332 of 2022, 336, 14331 of 2023, decided on 5th December, 2023.

Sindh Cooperative Housing Societies Act (XXVIII of 2020)---

----S. 73---Specific Relief Act (I of 1877), Ss. 42, 12 & 54---Suit for declaration, specific performance of agreement, possession, permanent injunction, rendition of account and damages---Disputes of Co-operative Societies---Jurisdiction--- Scope--- Suit was tilted for declaration, specific performance, possession, rendition of accounts, mandatory and permanent injunction and damages of Rupees 40 million---Plaintiffs had paid amounts and/on failure of the promises they claimed the reliefs as prayed---Defendants were working under the business name of "Imran Town"--- However, Cooperative Housing Society Limited was found shown along with Wirsa Construction in the annexures present with the plaint---A person having paid the amounts is required to be treated as member of the cooperative housing society as it cannot be imagined that there can be any plot available for a non-member in a co-operative housing society, as such the plaintiff (irrespective of any shortcoming in the drafting of the plaint and the inclusion of the society as a defendant) was required to be treated as a member and entitled to the promises or in alternative damages whether against the defendants or the housing society which was subsequently impleaded therein---Plaint as such was found to be well within the definition of a dispute---Present matter was covered by Sindh Cooperative Housing Socities Act, 2020 and was to be dealt accordingly---High Court directed that the present matter be sent to the concerned/Co-operative Court to be tried and decided in accordance with law.

Abdul Waheed Siddiqui v. The State 2007 YLR 3314 rel.

Plaintiff No.1 in person.

Anand Kumar for Defendant.

Asad Iftikhar, A.A.G.

2024 Y L R 1766

[Sindh (Hydereabad Bench)]

Before Muhammad Saleem Jessar, J

Bashir Ahmed and others---Appellants

Versus

The State---Respondent

Criminal Appeals Nos. S-195, S-197 of 2019 and S-232 of 2021, decided on 28th March, 2022.

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

----Ss. 302(b), 324, 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died, whereas his relative sustained injuries---Previous enmity due to rotation of water was motive behind the incident---In the FIR, lodged by complainant, he had named all the accused by name---In his deposition also complainant had fully narrated the facts with minute details and had exactly given the details of the portion of the incident seen by him---In cross-examination complainant clearly admitted that he had not seen the incident by his own eyes---Complainant also stated that the accused did not attack them and his house was at a distance of about one furlong from the place of incident---Admittedly, complainant did not know the name of the vehicle's driver who took the dead body and the injured---Naturally a person taking dead body of his younger brother and an injured relative could not be expected to keep such details in mind---Thus, the circumstantial evidence produced by complainant corroborated the evidence of eye-witness, who was injured during the incident and was an eye-witness---Injured witness had given the details of the incident seen by him and had assigned specific roles to each accused and the firearm/weapon held by them---Injured witness was cross-examined by defence but his testimony could not be shaken at all---No contradiction of note could be pointed out in his deposition---Other witness had also narrated the same story and assigned identical roles to the accused persons---Record showed that there was no substantial contradiction in the ocular evidence and the medical evidence---Accused "AM", "LM" and "R" were assigned specific roles of causing direct injuries to deceased and offensive weapons were also shown to have been recovered from them during investigation---Prosecution had adduced concrete-cum-tangible material in evidence against them which was sufficient to hold that said accused persons were responsible for causing death of deceased---Appeal of accused in question against conviction was dismissed, in circumstances.

Amin Ali and another v. The State 2011 SCMR 323; Zafar v. The State and others 2018 SCMR 326; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Shah v. The State 2010 SCMR 1009; Muhammad Afzal v. The State 2021 SCMR 289; Saleem Zada and others v. The State and others 2019 SCMR 1309; Asfandiyar v. The State and others 2021 SCMR 2009; Gulshan Shah v. The State 2021 SCMR 1456 and Mazhar Ellahi v. The State 2020 SCMR 586 ref.

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

----Ss. 302(b), 324, 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Identification of accused not doubtful---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died, whereas his relative sustained injuries---Defence raised a question as to the identification of the accused persons in order to expel the possibility of mistaken identity---Notable that both the parties were well known to each other, therefore, there was no chance of mistaken identity---All the witnesses had correctly named the accused persons and had also stated their role correctly and there was no contradiction between the depositions of witnesses on any material point---Witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence and had also explained the mode and manner of the occurrence qua the culpability of the accused persons---Said witnesses were cross-examined at length, but defence could not extract anything from them and they remained consistent on all material points---Appeal against conviction to the extent of accused persons "AM", "LM" and "R" was dismissed, in circumstances.

Sharfuddin alias Sharfoo and another v. The State 2022 YLR 324 and Muhammad Rashid and another v. The State 2022 YLR 119 rel.

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

----Ss. 302(b), 324, 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay in issuing the medical certificate---Inconsequential---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died, whereas his relative sustained injuries---Allegedly, the provisional medical certificate was issued after a delay of ten days while the final medical certificate was issued after delay of seven months---However, when no major contradiction could be pointed out in the prosecution evidence, then the delay in issuance of the medical certificates was of no significance and importance---In such cases, the delay was sometimes attributable to non-availability of certain reports which was a usual occurrence---Therefore, such delay was of no help to the defense---Appeal against conviction to the extent of accused "AM", "LM" and "R" was dismissed, in circumstances.

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

----Ss. 302(b), 324, 504, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Medical evidence contradicting ocular account---Accused were charged that they made firing upon complainant party, due to which brother of complainant was hit and died, whereas his relative sustained injuries---Record showed that accused persons "BA" & "MK" allegedly made straight fires upon witness which proved ineffective and they had not repeated the same hence propriety demanded that a lenient view should be taken, therefore, appeal against conviction to the extent of said accused persons was allowed---So far as case of accused "AZ" was concerned, he along with co-accused (since absconder) and accused (since dead) allegedly had caused multiple injuries to injured witness; however, said accused had pistol in his hand and, as per medial report and evidence of the Medico-Legal Officer, no bullet injury was sustained by the injured---Per medical evidence, injured sustained pellet injuries and, hence prosecution had failed to prove its charge against said accused, therefore, his appeal against conviction was allowed, in circumstances.

Muhammad Ashraf Javeed and another v. Muhammad Umar and others 2017 SCMR 1999; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Azhar Mehmood and others v. The State 2017 SCMR 135; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Muhammad Imran v. The State 2020 SCMR 857; Muhammad Asif v. The State 2017 SCMR 486; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Nazir Ahmad v. The State 2018 SCMR 787; Mashooque Ali v. The State 2018 YLR 1533 and Irshad Ahmed v. The State 2011 SCMR 1190 ref.

Syed Tariq Ahmed Shah, for Appellants (in all the captioned criminal appeals, except appellant Ameer (in Criminal Appeal No. 197 of 2019).

Wazeer Hussain Khoso, for Appellant (in Criminal Appeal No. S-197 of 2019).

Ms. Rameshan Oad, A.P.G Sindh for the State.

Muhammad Hashim Laghari for Complainant (in all the captioned criminal appeals).

Dates of hearing: 14th February and 7th March, 2022.

Judgment

Muhammad Saleem Jessar, J.--- I intend to dispose of the above three criminal appeals by this common judgment as the incident, facts and evidence as well as the FIR in all these criminal appeals are same.

1. The appellants are aggrieved by the judgment dated 17.07.2019 passed by learned Model Criminal Trial Court / 1st Additional Sessions Judge, Hyderabad, in Sessions Case No. 53 of 2004, in Crime No.02/2004 of PS Tando Jam, registered under sections 302, 324, 504, 147, 148 and 149, P.P.C., whereby the appellants Ameer, Raja, Bashir, Lal Muhammad, and Muhammad Khan alias Dado, were convicted under section 265-H(ii), Cr.P.C. and sentenced under section 144, P.P.C. to suffer R.I. for two years. The appellants were further sentenced under section 302(b), P.P.C. for life imprisonment and also to pay fine of Rs.100,000/- each, if recovered, to be paid to the legal heirs of the decease, as provided under section 544-A, Cr.P.C. and in default to suffer simple imprisonment for six months more. They were also extended benefit of section 382-B, Cr.P.C. Appellant Aziz Ahmed (Cr. Appeal No. 232/2021) was convicted under section 265-H(ii), Cr.P.C. and sentenced under section 144, P.P.C. to suffer R.I. for two years. He was also sentenced under section 504/34, P.P.C. to suffer R.I. for two years. He was also sentenced under section 302(b)/34, P.P.C. to undergo life imprisonment and to pay fine of Rs.100,000/- under section 544-A, Cr.P.C., which, if recovered, was to be paid to the legal heirs of the deceased Shamsuddin. He was also extended benefit of section 382-B, Cr.P.C.

2. Brief facts of the prosecution case as disclosed in the FIR are that complainant Hakim Ali lodged his report bearing Crime No.02/2004 under sections 302, 324, 147, 148, 149, P.P.C. at Police Station Tando Jam, Hyderabad, stating therein that he is zamindar and his younger brother Shamsuddin alias Shaman son of Taj Muhammad alias Tajoo Nizamani, aged about 30 years, was residing near his house and he was doing his private business. On 12-01-2004, while he was sitting in his house he heard gun report from Otaq (out house) of his relative Muhammad Bux Nizamani, as a result of which Muhammad Bux also came out from his home and they both headed towards the Otaq where they saw that light of bulb was available and they saw that Ameer Nizamani armed with double-barrel gun, Shamsuddin alias Shamman Nizamani armed with .12-bore pistol, Dost Ali Nizamani armed with double barrel gun, Raja armed with iron rod, Aziz Ahmed armed with pistol, Bashir Ahmed armed with revolver, Lal Muhammad armed with hatchet, Dado Nizamani armed with pistol, who while abusing came out of the Otaq and when they entered in the Otaq, they saw that his brother Shamsuddin alias Shaman Nizamani has sustained injuries of gun fire over his left leg on the knee and also sustained firearm injuries on his right foot and injury was also found on the other part of the body and he was bleeding from his injuries and also from his head. Jahangir has also injuries of pallet due to firing at both of his legs and he was bleeding and in their presence, Shamsuddin succumbed to his injuries. On enquiry, Jahangir and his son Wasi Ahmed told them that they all three were sitting in the Otaq when at 10-00 pm, while the light was available from the bulb, accused Ameer Nizamani, Shamsuddin alias Shamoon Nizamani, Raja Nizamani, Dost Ali, Aziz Ahmed, Bashir Ahmed, Lal Muhammad and Dodo Nizamani came in the Otaq and immediately, they started abusing them and threatened them that they would not spare them as so many times due to rotation of water they have quarreled with them and have insulted so many times so today, they will take revenge. So saying they started firing their guns, pistol and gave blows with iron rod and hatchet. Ameer Nizamani had caused fire arm injuries to his uncle Shamsuddin alias Shaman and he fell down on the ground, thereafter, Raja Nizamani caused iron rod blows and Lal Muhammad Nizamani gave hatchet blows and accused Dost Ali also fired his gun and accused Shamsuddin alias Shamoon Nizamani also fired his pistol and accused Aziz Ahmed with intention fired straight at him so he sustained pallet injuries on his legs, thereafter, accused Bashir Ahmed fired his pistol and Dado Nizamani also fired his pistol. He bow down so he did not sustain injury, thereafter arrangements were made through his son Wasi Ahmed and Muhammad Bux for transport for taking injured Jahangir and his deceased brother to Tando Jam. Jahangir was taken to Civil Hospital, Hyderabad by his father Muhammad Bux for treatment and dead body of Shamsuddin alias Shaman was taken to Rural Health Centre, Tando Jam where his son remained with dead body and now he has come to lodge report that due to old enmity due to rotation of water, accused Ameer Nizamani and others with common intention resorted to violence and they fired their guns, pistols, revolver, and used iron rod and hatchet, as a result of which his brother Shamsuddin has been murdered and Jahangir was injured. He has to report that investigation be conducted as they had taken the licensed pistols of his brother Shamsuddin alias Shaman.

3. After completing usual investigation, the accused persons were challaned before the concerned court showing the accused persons Ameer, Raja, Bashir Ahmed and Lal Muhammad in custody in the charge sheet, while remaining accused persons were shown as absconders.

4. The R & Ps of instant case were received by the trial court from the court of District and Sessions Judge, Hyderabad, by way of transfer as the court was designated/assigned as Model Criminal Trial Court vide Notification No.RHC/PA/2019 dated 19-03-2019 of the High Court of Sindh Karachi, for its disposal as expeditious justice initiative (EJI).

5. The necessary case papers were supplied to the accused persons vide their receipt as Ex:1. Formal charge was already framed against the accused persons at Ex:5, to which they pleaded 'not guilty' and claimed for trial vide their pleas at Exs:6 to 11.

6. The prosecution examined Hakim Ali as PW-1 at Ex:21, Muhammad Bux alias Hakim as PW-2 at Ex:23, Jahangir as PW-3 at Ex:27, Ashique Ali as PW-4 at Ex:28 (who produced memo. of dead body, memo. of lash chakas form, and danishnama, memo. of place of incident, mashirnama of injuries, mashirnama of arrest, mashirnama of recovery, mashirnama of arrest of accused Lal Muhammad and Bashir as Ex:28/A to Ex:28/H), Wasi Ahmed as PW-5 at Ex:29. Senior MLO who produced provisional and final certificate as Ex:30/A and Ex:30/B respectively), SIP Ghulam Nabi as PW-7 at Ex:31, MLO Dr. Ghulam Ali (who produced postmortem report as Ex:32/A). SHO Shah Nawaz as PW-9 at Ex:35. ASI Allah Obhayo as PW-10 at Ex:36, statement of ASI Ghulam Shabbir as PW-11 at Ex:37 (who produced report, statements, photocopy of prescription doctor, and office order as Ex:37/A to Ex:37/H respectively). SIP Ghulam Nabi as PW-12 at Ex:38. Thereafter, learned DDPP closed the side of the prosecution vide his statement at Ex:39.

7. Statements under section 342, Cr.P.C of accused persons were recorded at Ex:40 to Ex:44. In their statements the accused persons refuted all the allegations levelled against them by the prosecution and claimed to be innocent. In their statements the accused neither wanted to lead any evidence in their defense nor desired to examine themselves on oath.

8. Thereafter the learned trial court framed the following points for determination:

Point No. 1. Whether on 12-01-2004 at 2200 hours at the otaq of Muhammad Bux Nizamani situated at Tando Qaiser accused Ameer Ahmed, Raja Bashir Ahmed, Lal Muhammad, and Muhammad Khan and absconding accused Aziz Ahmed, Dost Ali and Dodo and accused Shamsuddin alias Shaman (since dead duly armed with deadly weapons viz. double barrel gun, pistol, revolver, .12 bore pistol, assembled unlawfully for their common object to commit offence by means of criminal force against the complainant party?

Point No.2: Whether deceased Shamsuddin son of Taj Muhammad Nizamani died un-naturally?

Point No.3. Whether on 12-01-2004 at 2200 hours at the otaq of Muhammad Bux Nizamani situated at Tando Qaiser accused Ameer Ahmed, Raja Bashir Ahmed, Lal Muhammad, and Muhammad Khan and absconding accused Aziz Ahmed, Dost Ali and Dodo and accused Shamsuddin alias Shaman (since dead), duly armed with deadly weapons viz. double-barrel gun, pistol, revolver, .12 bore pistol, iron rod, and hatchet with their common intention gave abuses to Shamsuddin son of Taj Muhammad, Jahangir and Wasi Ahmed and made fire, accused Ameer shot, accused Lal Muhammad caused lathi blow, and accused Raja caused iron rod and committed Qatl-i-Amd of deceased Shamsuddin son of Taj Muhammad Nizamani with their common intention?

Point No.4: Whether on 12-01-2004 at 2200 hour at the Otaq of Muhammad Bux Nizamani situated at Tando Qaiser Raja Bashir Ahmed, Lal accused Ameer Ahmed, Muhammad, and Muhammad Khan and absconding accused Aziz Ahmed, Dost Ali and Dodo and dead accused Shamsuddin alias Shaman duly armed with deadly weapons viz. double barrel gun, pistol, revolver, .12 bore pistols, iron rod, and hatchet, with their intention accused Aziz, Dost Ali and Common Shamsuddin gave injuries to P.Ws Jahangir and Wasi Ahmed?

Point No.5. What should the Judgment be?

1. The trial court after recording evidence and hearing the arguments of the learned D.D.P.P for the State and the learned Counsel for the appellants as well as the complainant, answered the points as proved, and convicted and sentenced the appellants as mentioned above. Hence these appeals.

2. Heard learned counsel for the appellant as well as learned counsel for the complainant and APG for the State.

3. Syed Tarique Ahmed Shah, learned counsel appearing on behalf of all the appellants, except appellant Ameer, submits that offence is unseen and therefore there had been contradictions with regard to the registration of FIR, time of incident as well as the post-mortem notes taken by the Medico Legal Officer. He next submitted that provisional medical certificate issued in favour of injured/P.WV Jehangir is delayed for about 10 days; whereas final medical certificate was also issued with a delay of 07 months hence, according to him, all these facts were fatal to the prosecution case and rose many questions with regard to authenticity of the evidence of injured/P.W Jehangir. He also submitted that per prosecution case/FIR, appellant Dost Ali (since absconder) was having DBBL gun in his hand, appellant Shamsuddin (since died during trial) was having country made pistol in his hand and appellant Aziz Ahmed (in custody) was having pistol in his hand, they all have caused jointly firearm injuries to P.W Jehangir; however, he had received all injuries on his legs with pellet(s). He submitted that injuries allegedly sustained by injured/P.WN Jehangir were also recognized by Medico Legal Officer to be caused by smooth weapons like cartridges/gun/country made pistol, therefore, injuries allegedly attributed to appellant Aziz Ahmed, who was armed with pistol cannot be used against him, as there is no evidence against him though injured/P.W Jehangir before the trial Court had deposed that he had sustained bullet injuries on his person, which according to Mr. Shah, is contradictory to available evidence. He further submitted that injuries allegedly sustained by injured P.W Jehangir were opined by Medico Legal Officer to be falling under section 337-F(ii), P.P.C., which carries maximum punishment of three years. Mr. Shah further argued that appellant Lal Muhammad at the time of alleged offence was armed with hatchet and appellant Raja was having iron rod in his hand and both allegedly caused injuries to deceased Shamsuddin, which landed on his person; however, appellant Ameer who was having DBBL gun in his hand through which he made fire and thereby is alleged to have caused murder of deceased Shamsuddin; however, he has been acquitted from the charge of said offence bearing Crime No.07/2004, registered at Police Station Tando Jam, under section 13(d) Arms Ordinance, 1965 by the Court of Civil Judge/Judicial Magistrate-IV, Hyderabad in Cr. Case No.88 of 2007 (re: The State v. Ameer). He further submitted that post-mortem report was delayed for about 27 hours hence it is also additional ground that the prosecution had not come with clean hands. He next submitted that incident allegedly had occurred in odd hours of night viz. 10:00 p.m. of 12.01.2004 and source of identification as disclosed in the FIR, was electric bulb; however, said bulb neither was secured nor shown by the complainant to I.O at the time of inspection of place of incident. He also submitted that 161, Cr.P.C. statement of injured P.W Jehangir was also delayed by about 09 days and he even too did not identify the culprits; however, learned counsel admitted that in his evidence before the trial Court the said witness had implicated all accused with the commission of alleged offence.

4. As far as accused Bashir Ahmed and Muhammad Khan are concerned, Mr. Shah submitted that at the relevant time both allegedly had caused firearm injuries to P.W Wasi but he did not sustain any injury and fires allegedly made by them were proved ineffective. He also submitted that both appellants namely Bashir Ahmed and Muhammad Khan had allegedly produced their respective offensive weapons; however, both of them have been acquitted of the charges of said cases, therefore, their implication in this case is doubtful. He prayed for grant of appeals as well as acquittal of the appellants. In support of his contentions, he placed reliance on the cases of Muhammad Ashraf Javeed and another v. Muhammad Umar and others (2017 SCMR 1999), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), Azhar Mehmood and others v. The State (2017 SCMR 135), Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), Muhammad Imran v. The State (2020 SCMR 857), Muhammad Asif v. The State (2017 SCMR 486), Sufyan Nawaz and another v. The State and others (2020 SCMR 192), Nazir Ahmad v. The State (2018 SCMR 787), Mashooque Ali v. The State (2018 YLR 1533) and Irshad Ahmed v. The State (2011 SCMR 1190).

5. Mr. Wazeer Hussain Khoso, learned counsel for appellant Ameer in Cr. Appeal No.S-197 of 2019 submitted that though appellant Ameer is nominated in the FIR with specific role; however, due to material contradictions with regard to delay in post-mortem notes as well as non-recovery of the electric bulb and the offence having been occurred in odd hours of night, his implication in this case is doubtful. He further submitted that injury No.8 sustained by deceased Shamsuddin has been shown by the Medico Legal Officer as blackening and tearing; however, such fact has not been brought on record, which suggests that offence was unseen and complainant party due to enmity over water rotation have falsely implicated them in this case. He; however, adopts the remaining arguments as advanced by learned counsel for remaining appellants and also prayed for grant of appeal as well as acquittal of appellant Ameer. In support of his contentions he placed reliance on the cases of Amin Ali and another v. The State (2011 SCMR 323), Zafar v. The State and others (2018 SCMR 326), Muhammad Asif v. The State (2017 SCMR 486) and Muhammad Shah v. The State (2010 SCMR 1009).

6. On the other hand, Ms. Rameshan Oad, the learned A.P.G appearing for the State opposed the appeals and submitted that prosecution has led direct evidence against the appellants, therefore, minor contradictions as claimed by the defence counsel may not vitiate the evidentiary value of the prosecution evidence, which on other hand has been corroborated with circumstantial evidence. She further submitted that delay in post-mortem notes cannot be taken into consideration, as Honourable Supreme Court of Pakistan in the case of Abdur Rehman v. The State (1998 SCMR 1778), where even no postmortem examination was conducted yet the appellants therein were convicted for the capital charge. She also submitted that as far as no ballistic report is concerned, it does not cause any harm to the prosecution case and in support of her contention she placed reliance on the case reported as Muhammad Afzal v. The State (2021 SCMR 289). She also submitted that injured/P.W Jehangir is the eye-witness, who had supported the case of the prosecution by implicating all the accused/appellants in this case hence minor contradictions arising due to passage of time could not divert the direct evidence available against the appellants. She; however, could not controvert the fact that appellants Bashir Ahmed and Muhammad Khan had been attributed ineffective firing and P.W Waseem had not sustained even single scratch on his body at the hands of these appellants. She admitted that though offensive weapons were allegedly recovered from appellants Bashir Ahmed and Muhammad Khan yet both of them have been acquitted of the charge. She on Court query admitted that injuries allegedly sustained by P.W Jehangir as is evident from Medico-legal certificate/evidence are pellet injuries and per prosecution case co-accused Dost Ali, who is absconding, was having DBBL gun and has not been arrested so far, while remaining two accused namely Shamsuddin and Aziz Ahmed were having pistols for which no evidence is available on record that injured Jehangir had sustained any bullet injury on his person. She has very candidly conceded that though the injured Jehangir had deposed before the trial Court that he sustained bullet injuries yet it does not have corroboration from any corner. She, however, reiterated her contention that accused Ameer, Lal Muhammad and Raja were assigned specific role of causing injuries to deceased Shamsuddin and since all three of them had caused injuries conjointly to him, therefore, they are liable to be held responsible for the offence they had committed. In support of her contentions she relied on the cases of Saleem Zada and others v. The State and others (2019 SCMR 1309), Asfandiyar v. The State and others (2021 SCMR 2009), Gulshan Shah v. The State (2021 SCMR 1456) and Mazhar Ellahi v. The State (2020 SCMR 586).

7. Mr. Muhammad Hashim Laghari, learned Counsel for the complainant, also opposed these appeals and submitted that the prosecution has led direct evidence against the appellants which was corroborated by the circumstantial evidence and on certain minor contradictions or lacunas left by prosecution during evidence may not vitiate the evidentiary value of the prosecution witnesses as one innocent person has lost his precious life and other has received multiple injuries on his person. He further submitted that contention raised by learned counsel for the appellants that deceased had enmity with other communities caries no weight, as complainant party may not implicate or substitute the real culprits with others and that the plea without corroboration cannot be taken into consideration.

8. As regards motive as shown by the appellants with regard to the valuable property owned by them in Tando Adam city, the learned counsel submitted that neither a single piece of evidence has been brought on record nor survey numbers of said property has been mentioned / brought on record. He further emphasized that neither said land is in possession of the complainant party nor the appellants were dispossessed from it as still they are well enjoying the same, therefore, it is an afterthought motive formed by the appellants to vitiate the prosecution case. In support of his contentions, he placed reliance on the cases Sharafuddin alias Sharfoo and another v. The State (2022 YLR 324), Muhammad Rashid and another v. The State (2022 YLR 119), Ghaffar Ali v. The State and another (2021 SCMR 354), Afsar Ali v. Majid Khan and another (2021 PCr.LJ 705), Syed Asif Ali v. The State (2020 PCr.LJ Note 179), Imran Khan and others v. The State (2020 PCr.LJ Note 187), Abdul Sattar v. The State (2018 YLR Note 5) and Muhammad Mansha v. The State (2016 SCMR 958).

9. So far as point No.2 is concerned, the finding of the trial Court that the evidence of the doctor / MLO is material, who has specifically stated in his evidence that the deceased died due to fire arm injuries. Thus, point No.2 was correctly answered in affirmative.

10. On the other points, the case of the prosecution rests on ocular evidence of two prosecution witnesses i.e. PW-3 Jehangir (the injured witness) and PW-5 Wasi Ahmed. In support of the ocular evidence as corroborative evidence, there is the evidence of the complainant PW-2 Muhammd Bux alias Hakim, PW-Dr. Baldev, Sr. MLO (Exh. 30 at page 241) and PW-Dr. Ghulam Nabi, retired MLO (Exh.32) apart from other witnesses.

11. First, I will take the deposition of the PW-2-complainant, namely, Muhammad Bux alias Hakim son of Noor Muhammad (Exh.23 at page 180 of R&P). Firstly, in the FIR lodged by him, he has named all the accused / appellants by name. In his deposition also he has fully narrated the facts with minute details and has exactly given the details of the portion of the incident seen by him i.e. of the going away of the appellants from the place of incident with their arms / weapons. He has clearly stated that on the gun shot report he came out from his home and met Muhammad Bux Nizamani and they went towards the Otaq and there they saw the appellants / accused fully armed and gave the details of the arm in the hand of the each appellant / accused using abusive language and going away. He further states that he saw PW Jehangir lying injured and Wasi Ahmed (typed as Waseem Ahmed in some places) was also available but was hiding and came out after the arrival of the complainant. On inquiry, he informed the complainant that all the accused came inside the Otaq and said that they (complainant party) were not providing them water and also insulting them, "accused Amir fired from his double barrel gun, Raja caused him iron rod blow and Lal Muhammad caused hatchet blow to Shamsuddin. PW Jehangir informed that Dost Ali fired from his gun, Shaman from TT/Pistol and Aziz also fired from pistol." In cross-examination he clearly admitted that he has not seen the incident by his own eyes. He also stated the accused did not attack them. He stated that his house is at a distance of about one furlong from the place of incident. He admitted that he did not know the name of the Suzuki driver who took the dead body and the injured. It is natural that a person taking dead body of his younger brother and an injured relative could not be expected to keep such details in mind. Thus, the circumstantial evidence produced by this witness corroborated the evidence of eye-witness Jehangir.

12. PW-3, Jehangir Nizamani son of. Muhammad Bux (page 196 of R&P) is the injured of the incident and is an eye-witness. He has given the details of the incident seen by him. He has assigned specific roles to each appellant and the firearm / weapon held by them. He was cross-examined by learned counsel for the appellants/ accused but his testimony could not be shaken at all. He is the eye-witness of the incident who also sustained injuries in the incident. He has categorically denied the suggestion that at the time of incident there was no electricity in the area. No contradiction of note could be pointed out in his deposition.

13. PW-5 Wasi Ahmed has also narrated the same story and assigned the identical roles to the appellants. He stated that accused Ameer abused them and made straight fire at his uncle Shaman, while Lal Muhammad caused him hatchet blow. He also stated that Dost Ali caused bullet injury from DBBL gun to Jehangir. He stated that he saved himself by sitting down and hiding.

14. PW- Dr. Baldev, Senior Medical Officer, LUMH, Hyderabad, was examined as Exh.30. In his examination in chief he stated that on 13.1.2004 he was posted as MLO, LUMH, Hyderabad and at 2.20 a.m. injured Jehangir came with police letter No.Cr/2/2004 dated 12.1.2004 of PS Tando Jam for examination and certificate. He was examined by the said doctor and a provisional certificate was issued showing the injuries sustained by him; however, final report was reserved as the injured was sent to X-ray. On receiving the X-ray report the final report was prepared. He was cross-examined by the defense counsel; however, no noteworthy contradiction was found in his deposition.

15. The prosecution also examined Dr. Ghulam Ali, retired MLO, as Exh.32. He stated that he was posted as MLO at RHC Tando Jam on 14.1.2004 when dead body of one Shamsuddin was brought at the hospital at 12.35 a.m. for post mortem. He has conducted post mortem of the dead body and submitted his report mentioning the injuries sustained by the deceased. He stated the cause of death of the deceased as hemorrhage and heavy bleeding with shock due to firearm. I have examined the cross-examination of this PW and found that it is of no help to the defense as there is no substantial contradiction in the ocular evidence and the medical evidence.

16. PW-1 Hakim Ali who is complainant of the FIR, fully corroborates the fact that the appellants were leaving the place of incident duly armed at the time of incident and the ocular evidence of PW-3 Jehangir and PW-5 Wasi. He has named all the appellants in the FIR with details of fire arms and weapons in their hands. Similarly, PW-3 Jehngir and PW-5 Wasi Ahmed had also mentioned the names of the appellants in their deposition.

17. Learned counsel for the appellants raised a question as to the identification of the accused / appellants in order to expel the possibility of mistaken identity. In this regard it may be noted that both the parties are well known to each other, therefore, there is no chance of mistaken identity. All the PWs have correctly named the appellants and have also stated their role correctly and there is no contradiction between the depositions of witnesses on any material point. In this regard reliance may be placed on the case of Sharfuddin alias Sharfoo and another v. The State (2022 YLR 324), relied by learned counsel for the complainant, in which a learned Single Bench of this Court held as under:

"In the instant matter all the 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. Besides this, eye-witnesses have also explained the mode and manner of taking place the occurrence qua the culpability of the appellants. Although, they were cross-examined by the 4defense at length, wherein the learned counsel for the defense asked multiple questions to shatter their confidence so also presence at the scene of occurrence but could not extract anything from them and they remained consistent on all material points. The parties are known to each other, so there was no chance of mistaken identity of the appellants."

1. The present case is fully covered by the above case as the witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence and have also explained the mode and manner of taking place the occurrence qua the culpability of the appellants. They were cross-examined at length, but defense could not extract anything from them and they remained consistent on all material points.

2. In the case of Muhammad Rashid and another v. The State (2022 YLR 119) a learned Division Bench of this Court held that conviction could be made on the basis of sole evidence of an eye-witness if the same is found to be trust worthy, reliable and confidence inspiring. In the present case there are two eye-witnesses whose evidence is trustworthy, reliable and confidence inspiring, and one of them also sustained injury in the same incident of firing.

3. Learned counsel for the appellants also submitted that the provisional medical certificate was issued after a delay of 10 days while the final medical certificate was issued after delay of seven months. However, when no major contradiction can be pointed out in the prosecution evidence, then the delay in issuance of the medical certificates is of no significance and importance. In such cases the delay is sometimes attributable to non-availability of certain reports which is a usual occurrence. Therefore, this delay is of no help to the defense.

4. Mr. Wazeer Hussain Khoso, learned counsel for appellant Ameer in Cr. Appeal No.S-197 of 2019 submitted that though appellant Ameer is nominated in the FIR with specific role; however, due to material contradictions with regard to delay in post-mortem notes as well as non-recovery of the electric bulb and the offence having been occurred in odd hours of night, his implication in this case is doubtful. He further submitted that injury No.8 sustained by deceased Shamsuddin has been shown by the Medico Legal Officer as blackening and tearing; however, such fact has not been brought on record, which suggests that offence was unseen and complainant party due to enmity over water rotation have falsely implicated them in this case.

5. In support of his contentions he places reliance on the cases of Amin Ali and another v. The State (2011 SCMR 323), wherein it was found that there was blackening around injury while none of the witnesses deposed that any of the appellants had caused the injury from a close range. However, this minor discrepancy cannot be taken into consideration as there are a number of injuries and it has not been clarified as to what caused the blackening. In the case of Abdur Rehman v. The State (1998 SCMR 1778), relied by learned APG, the esteemed Apex Court held as under:

"11. This Court while considering probative value of ocular evidence and making its comparison with medical evidence had observed in case Arif Shah v. State (1985 SCMR 850) that testimony of witnesses when overwhelmingly establish offence against the accused and nothing existed to create reasonable doubt concerning his involvement then medical evidence being merely an expert opinion could not be relied upon with mathematical precision. Relevant observations are thus:--

"It was then argued that the medical evidence also negates the possibility of the deceased having made the dying declaration in presence of the S.H.O. In this connection reference has been made to the evidence of Doctor Khaista Khan Afridi who has stated that the probable time between the injuries and death must have been 25 to 35 minutes and further that the injured must have been unconscious or drowsy on account of shock within 10 to 15 minutes of receiving the injuries. Nothing much turned upon these statements of the doctor which are a matter of expert opinion and cannot, therefore, be relied upon with mathematical precision. The marginal difference being only of 15 minutes there would always be an allowance to be made from case to case depending upon so many variable factors obtaining in a particular case. This is clear from the manner in which the opinion has been expressed in hypothetical terms."

1. Mr. Khoso also relied on the case of Zafar v. The State and others (2018 SCMR 326), to argue that the post mortem of the dead body was carried out with unexplained delay. In the cited case there was delay of more than 11 hours. In the case in hand, the incident took place at about 10.00 p.m. and the dead body was received by the MLO at 12.30 a.m. i.e. merely after about 2 and half hours. Therefore, the cited case is not relevant due to distinguishable facts.

2. Learned counsel for appellant, Ameer, also relied on the case of Muhammad Asif v. The State (2017 SCMR 486), wherein there was delay in recording of the 161 statement of the eye-witness which were recorded after one month and one day, to contend that there was delay in recording of 161 statement of the eye-witness which is fatal to the prosecution case. However, I have not found any unexplained and inordinate delay in recording of the 161 statements of the eye-witnesses.

3. Learned counsel for the appellants argued that it has come in evidence that Dost Ali (since absconder), was having DBBL gun in his hand; accused Shamsuddin (since dead) was armed with country made pistol, and Appellant Aziz Ahmed (in custody) was having pistol in his hand and they have been alleged to have caused injuries to PW Jehngir. However, as per medical report, all injuries sustained by PW Jehangir were pallet injuries sustained in his legs. Therefore, injuries sustained by injured PW Jehangir cannot be attributed to appellant Aziz Ahmed as he was having a pistol in his hand.

4. PW-3 Jehangir in his deposition has assigned specific roles to appellants Ameer having fired on the deceased Shamsuddin. He also stated that appellant Lal Muhammad caused hatchet blow to the deceased while appellant Raja caused iron rod blow to the deceased. Since, as per the medical report, the deceased Shamsuddin died due to excessive bleeding. Therefore, these appellants were rightly convicted for the offence of murder of the deceased Shmsuddin.

5. Learned counsel for the appellants relied on the case of Muhammad Ashraf Javed v. Muhammad Umar and others (2017 SCMR 1999) and Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) to argue that as the bulb in the light whereof the prosecution witnesses identified the appellants was not taken into custody by the I.O. therefore the case of the prosecution has become doubtful. However, in the cited case, which has been examined minutely, there are a number of infirmities and illegalities, while in the case in hand there are no such illegalities and infirmities. Therefore, on this ground alone the evidence of the prosecution witnesses cannot be discarded. In the case of Azhar Mehmood and others v. The State (2017 SCMR 135), the same objection regarding non-securing of the bulb has been raised; however, in that case the accused was not named in the FIR as in the FIR six unknown persons were mentioned as accused. In the present case all the accused have been named in the FIR with specific role, therefore, the cited case is not relevant and is distinguishable on facts.

6. Learned counsel for the appellants also relied on the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 SCMR 1142), wherein it was held that purported eye-witnesses were not present at the place of incident as their names are not mentioned in the specific column. In the cited case the eye-witnesses claimed that they took the injured (who later on died) to the hospital. However, in the present case the eye-witness was injured himself and was taken to hospital for treatment and report.

7. The learned counsel for the appellants also relied on the cases reported as Muhammad Imran v. The State (2020 SCMR 857), Muhammad Asif v. The State (2017 SCMR 486), Nazir Ahmed v. The State (2018 SCMR 787), Sufyan and others v. The State and others (2020 SCMR 190), Mashooque Ali v. The State (2018 YLR 1533) and Irshad Ahmed v. The State (2011 SCMR 1190); however, all these cases are distinguishable and not relevant to the facts of the present case.

8. Since appellant Ameer, Lal Muhammad and Raja were assigned specific roles of causing direct injuries to deceased Shamsuddin and offensive weapons also shown to have been recovered from them during investigation; besides, the prosecution has adduced concrete-cum-tangible material in evidence against them which is sufficient to hold that said appellants are responsible for causing death of deceased Shamsuddin hence the Criminal Appeal No. 197/2019 to that extent is dismissed and the impugned judgment with regard to the conviction and sentences awarded to these appellants is hereby maintained.

9. So far as the case of appellants Bashir Ahmed and Muhammad Khan is concerned, both allegedly made straight fires upon P.W Wasi (or Waseem) which were proved ineffective and they had not repeated the same hence propriety demands that a lenient view should be taken, therefore, Criminal Appeal No.195/2019 is allowed and the impugned Judgment is set aside to the extent of, both these appellants i.e. Bashir and Muhammad Khan alias Dado and they are hereby acquitted of the charge(s).

10. So far as case of appellants Aziz Ahmed is concerned, he along with co-accused Dost Ali (since absconder) and Shamsuddin (since died) allegedly had caused multiple injuries to P.W Jehangir; however, as discussed above, appellant Aziz Ahmed was having pistol in his hand and, as per medial report and evidence of the MLO, no bullet injury is sustained by injured/P.W Jehangir. Per medical evidence, injured/P.W Jehangir sustained pellet injuries and, hence prosecution has miserably failed to prove its case/charge against appellant Aziz Ahmed, therefore, Criminal Appeal No.S 232 of 2021 is hereby allowed. The conviction and sentence(s) to the extent of appellants Aziz Ahmed, are hereby set aside.

11. The upshot of the above discussion is that, Criminal Appeal No. 197 of 2019 is dismissed and the conviction and sentence in respect of the appellants Ameer, Lal Muhammad and Raja are hereby maintained, while Criminal Appeals Nos. 195 of 2019 and 232 of 2021 are allowed, the impugned judgment to the extent of conviction and sentence of appellants Bashir Ahmed, Khan Muhamamd alias Dado and Aziz Ahmed are hereby set aside and these appellants are hereby acquitted. They shall be released forthwith if not required in any other case.

12. As regards the role attributed to co-accused Dost Ali (since abscondr) he was having DBBL gun in his hand and caused gunshot injury(ies) to injured/P.W Jehangir, which has been corroborated through medical evidence, therefore, appellant Dost Ali is also liable to be held responsible for causing injuries he allegedly caused to P.W Jehangir. Accordingly, case against co-accused Dost Ali be kept on dormant file. Let permanent NBWs be issued against him through SHO concerned till he is arrested or surrenders himself before the trial Court, as the case may be.

2024 Y L R 1797

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Amjad Ali Bohio, JJ

Muhammad AfzaL---Appellant

Versus

The State---Respondent

Special Criminal Jail Appeal No. D-137 of 2022, decided on 19th July, 2023.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Contradictions and discrepancies in the statements of official witnesses---Prosecution case was that 1250 grams charas was recovered from the possession of the accused---Complainant stated that after arrest and recovery, they brought the accused and the case property to Police Station, where he lodged the FIR at 10.30 pm whereas, mashir/Police Constable, during cross-examination, mentioned that they reached Police Post at 10.30 pm---Such inconsistency raised doubts about the availability of the complainant at both places viz. Police Post and Police Station at the same time, i.e., 10.30 pm---Furthermore, the fact that the police party had left the police post, as mentioned in entry No. 20, at 09.00 pm, for patrolling had not been adequately explained by the complainant in relation to the entry of their departure from Police Station or Police Post---During their cross-examination, both the complainant and mashir testified that no private person was present at the time of the alleged recovery---However, it had been admitted by the Investigating Officer that residences and shops were situated near the place of recovery, particularly the shops and houses of a community---Complainant, during his cross-examination, expressed unawareness about the availability of shops at the place of the incident---In light of these discrepancies and uncertainties, the prosecution's case with regard to the recovery and handling of the alleged charas lacked credibility and consistency---Both the complainant and mashir had also contradicted each other regarding the manner in which the memo of arrest and recovery was prepared---According to mashir, the complainant prepared the mashirnama by keeping it on a clipboard, while the complainant stated that he prepared it by keeping it on the bonnet of a mobile vehicle and not on a clipboard---Such loopholes and inconsistencies in the statements of the prosecution witnesses, especially their lack of knowledge about certain realities, raised doubts about the credibility of their testimonies---Appeal against conviction was allowed, in circumstances.

Naveed Daud v. State 2023 PCr.LJ 154 rel..

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody of parcel and safe transmission of samples not proved---Prosecution case was that 1250 grams charas was recovered from the possession of the accused---First Information Report was registered on 22-08-2021 at 10.30 pm---According to the complainant, he deposited case property in malkhana and Investigating Officer had received the same on 23-08-2021---Therefore, it was duty of prosecution to prove that the parcel was kept in malkhana on 22-08-2021 and same remained in safe custody till its delivery to Investigating Officer on 23-08-2021, and it was incumbent upon the prosecution to have adduced the evidence of incharge malkhana, but it failed to do the same---There was no evidence during the intervening period regarding the safe custody of the parcel---Parcel was kept in the malkhana, as entry in register No. 19 produced by the complainant---In order to prove that the parcel was kept in safe custody in the malkhana, the prosecution should have examined the Head Moharrar of the malkhana---Moreover, the safe custody of the parcel and the safe transmission of the sample were questionable, as photostat copy of Road Certificate had been produced without seeking permission for production of photostat copy and furnishing explanation with regard to non-production of the original---Photostat copy was not admissible in evidence until/unless permission for the same is obtained from the Court---Thus, the prosecution failed to prove the delivery of parcel to the Chemical Examiner---As a result, the chain of safe custody was broken, which was a vital and fundamental ingredient in establishing a conviction of the accused under the Act, 1997---Appeal against conviction was allowed, in circumstances.

Javed Iqbal v. The State 2023 SCMR 139 and Azhar Abbas and others v. Haji Tahir Abbas and another 2021 CLC 1351 rel.

(c) Criminal trial---

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

Tariq Parvez v. The State 1995 SCMR 1345 rel.

Rukhsar Ahmed Junejo for Appellant.

Syed Sardar Ali Shah, Additional Advocate General, Sindh for the State.

Date of hearing: 19th July, 2023.

Judgment

Amjad Ali Bohio, J.--- This Criminal Appeal is directed against the judgment dated 12-12-2022, passed by the learned Additional Sessions Judge-I/Special Judge for (CNS) Khairpur. The appeal pertains to the case of Muhammad Afzal Chandio, who was tried for the offence under Section 9 (c) of the Control of Narcotic Substances Act, 1997. Following a regular trial, he was convicted and sentenced to imprisonment for twelve (12) years R.I and ordered to pay a fine of Rs. 50,000/- (Fifty thousand). In the event of default, he would undergo an additional sentence of four (04) months simple imprisonment.

1. According to the prosecution's case, on 22.08.2021 at 2130 hours, the complainant/Inspector Khalid Hussain Dahiri, along with his subordinate staff, apprehended the appellant at the link road leading from Mirwah Canal to Bhurgri bridge. The apprehension led to the recovery of three pieces of charas in a plastic shopper, weighing 1250 grams, from the appellant's possession. The charas was sealed on the spot, and a memo. of arrest and recovery was prepared in the presence of PCs Qurban Ali and Abdul Jabbar. Following the arrest and recovery, the accused, along with the seized property, was brought at PS Shaheed Murtaza Mirani, where the Inspector lodged the FIR on behalf of the State at 2230 hours for the offence under Section 9 (c) of the CNS (Control of Narcotic Substances) Act, 1997.

2. After completing the usual investigation, the investigating officer submitted the report under Section 173 of the Criminal Procedure Code (Cr.P.C) against the appellant. The trial court framed charge against the appellant on 19-11-2022, to which, he pleaded not guilty and chose to proceed with the trial.

3. To prove it's case, the prosecution first examined Mashir PC/Qurban Ali (PW-1), who produced the memo. of arrest and recovery, as well as, the memo of inspection of the place of the incident. Then, Complainant/Inspector Khalid Hussain Dahiri (PW-2) testified and presented the entry of departure, the F.I.R, and copy of the entry. Next, SIP/I.O Muhammad Bux Shar (PW-3) produced the letter seeking permission, along with entries, Photostat copy of Road Certificate (RC) with regard delivery of the parcel to the Chemical Examiner, as well as letter addressed to Chemical Examiner showing receipt of parcel and the chemical report. Lastly, PC/ despatcher Niaz Hussain (PW-4) was examined. Subsequently, the prosecution closed its side of the evidence on 14.10.2022.

4. In his statement recorded under Section 342 of the Criminal Procedure Code (Cr.P.C), the appellant denied the allegations and claimed that the chemical report was manipulated by the prosecution witnesses (PWs), claiming his innocence. However, he chose not to examine himself under Section 340 (2) of the Cr.P.C, and he declined to present any evidence in his defense.

5. After hearing the arguments and assessing the evidence, the trial court convicted and sentenced the appellant as mentioned above. Hence, this instant appeal has been filed.

6. We have heard the arguments presented by the learned counsel for the appellant, the learned Deputy Prosecutor General representing the State, and re-examined the evidence brought on record.

7. The appellant's counsel has contended that the appellant is innocent and has been falsely implicated in the case. He argues that the alleged charas was planted on the appellant by the police. The counsel argued that there are major contradictions in the evidence presented by the prosecution witnesses. The appellant's counsel further contends that the prosecution witnesses deliberately avoided to associated private persons at the time of the alleged recovery. It has been highlighted by the defense counsel that the police official to whom, the parcel was delivered for safe custody has not been cited as a witness and has not been examined by the prosecution to establish the chain of custody of the parcel from the date of recovery up till its delivery to the chemical examiner. The sealed parcel according to the prosecution's evidence, was dispatched by the Investigating Officer on 23-08-2021. However, the actual Road Certificate (RC) bearing memorandum No. 2399 dated 23-08-2021, as mentioned in the chemical report produced at Ex. 5/E, was not presented. But photo state copy of the same submitted without seeking permission of the Court. Lastly, the defense counsel argues that the chemical report does not pertain to the parcel sent to the chemical examiner. In conclusion, the defense counsel has prayed for the appellant's acquittal based on the above-mentioned arguments and contentions.

8. In rebuttal, the learned Deputy Prosecutor General for the State has supported the impugned judgment and argued that the contradictions raised by the defense counsel are minor in nature. He asserts that the parcel containing the alleged charas was delivered to the chemical examiner within 24 hours of the alleged recovery, indicating that there was no delay in dispatching the parcel. The Deputy Prosecutor General contends that the prosecution has successfully proven the guilt of the accused beyond any reasonable doubt.

9. Upon careful consideration of the contentions raised by both parties, it has been found that the prosecution failed to establish a clear chain of custody regarding the recovery of the alleged charas, its safe custody, dispatch, and delivery to the chemical examiner. They have also pointed out material contradictions in the testimonies of the complainant and mashir PC Qurban Ali.

10. The complainant stated that after the arrest and recovery, they brought the accused and the case property to PS Shaheed Murtaza Mirani, where he lodged the FIR at 2230 hours whereas, mashir PC Qurban Ali, during cross-examination, mentioned that they reached Police Post Shah Abdul Latif at 2230 hours. This inconsistency raises doubts about the availability of the complainant at both places viz. Police Post Shah Abdul Latif and PS Shaheed Murtaza Mirani at the same time, i.e., 2230 hours. Furthermore, the fact that the police party had left the police post, as mentioned in entry No. 20, at 2100 hours for patrolling has not been adequately explained by the complainant in relation to the entry of their departure from PS Shaheed Murtaza Mirani or PP Shah Abdul Latif.

11. During their cross-examination, both the complainant and mashir (PC Qurban Ali) testified that no private person was present at the time of the alleged recovery. However, it has been admitted by the Investigating Officer (I.O) that residences and shops are situated near the place of recovery, particularly the shops and houses of the Maitla community. The complainant, during his cross-examination, expressed unawareness about the availability of shops at the place of the incident. In light of these discrepancies and uncertainties, the prosecution's case with regard to the recovery and handling of the alleged charas lacks credibility and consistency.

12. Both the complainant and mashir have also contradicted each other regarding the manner in which the memo. of arrest and recovery was prepared. According to mashir, the complainant prepared the mashirnama by keeping it on a clipboard, while the complainant stated that he prepared it by keeping it on the bonnet of a mobile vehicle and not on a clipboard.

13. These loopholes and inconsistencies in the statements of the prosecution witnesses, especially their lack of knowledge about certain realities, raised doubts about the credibility of their testimonies. After re-assessment of evidence, we have come to the conclusion that the prosecution has failed to establish its case against the appellant beyond a reasonable doubt. The reliance in this regard is placed on the case of Naveed Daud v. State (2023 PCr.LJ 154).

14. Another critical aspect of the case pertains to positive chemical report relied upon by the prosecution. The FIR was registered on 22-08-2021 at 2230 hours. According to the complainant he deposited case property in malkhana and I.O had received the same on 23-08-2021. Therefore, it was duty of prosecution to prove that the parcel was kept in malkhana on 22-08-2021 and same remained in safe custody till it's delivery to I.O 23-08-2021 and it was incumbent upon the prosecution to have adduced the evidence of incharge malkhana, but failed. However, there is no evidence during the intervening period regarding the safe custody of the parcel. The parcel was kept in the malkhana, as entry in register No. 19 produced by the complainant at Ex. 4/C. In order to prove that the parcel was kept in safe custody in the malkhana, the prosecution should have examined the Head Moharrar of the malkhana. In the case of Javed Iqbal v. The State (2023 SCMR 139) it is held the prosecution is responsible to establish each and every step from the stage of recovery till the delivery of the parcel to the concerned laboratory.

"Even the Moharrar of the Malkhana was also not produced even to say that he kept the sample parcels in the Malkhana in safe custody from 18.12.2013 to 20.12.2013. It is also shrouded in mystery as to where and in whose custody the sample parcel remained. So the safe custody and safe transmission of the sample parcels was not established by the prosecution and this defect on the part of the prosecution by itself is sufficient to extend benefit of doubt to the appellant. It is to be noted that in the cases of 9(c) of CNSA, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused. Reliance in this behalf can be made upon the cases of Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ikramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) wherein it was held that in a case containing the above mentioned defects on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt. So the prosecution has failed to prove the case against the petitioner and his conviction is not sustainable in view of the above mentioned defects".

1. Moreover, the safe custody of the parcel and the safe transmission of the sample are in question, as Photostat copy of Road Certificate (RC) No.2399 has been produced without seeking permission for production of Photostat copy and furnishing explanation with regard non-production of the original. It is well settled law that Photostat copy is not admissible in evidence until/unless permission for the same was obtained from the Court. Reliance in this regard is placed upon Azhar Abbas and others v. Haji Tahir Abbas and another (2021 CLC 1351), which reads as under:-

"Mere marking of a document as an exhibit would not dispense with requirement of proving the same and the same cannot be exhibited unless it is proved. In the present case, the situation remained the same, but the learned Courts below have not considered and dilated upon the requirement of law because admitting Photostat copy of a document in evidence and reading the same in evidence without observing legal requirements of Article 76 of the Qanun-e-Shahadat Order, 1984 would be illegal. Reliance is placed on the case of Feroz Din and others v. Nawab Khan and others (AIR 1928 Lahore 432), Fazal Muhammad v. Mst. Chohara and others (1992 SCMR 2182) and Abdul Rehman and another v. Zia-Ul-Haq Makhdoom and others (2012 SCMR 954)".

2024 Y L R 1818

[Sindh (Sukkur Bench)]

Before Naimatullah Phulpoto and Amjad Ali Bohio, JJ

Mohammad Juman Khaskheli alias JUMO---Appellant/Convict

Versus

The State---Respondent

Special Criminal Appeal No. D-05 of 2023, decided on 21st July, 2023.

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

----S. 9(b)---Possession of narcotic---Appreciation of evidence---Safe custody of parcel and safe transmission of samples not proved---Prosecution case was that 700 grams charas was recovered from the possession of the accused---According to the complainant, he handed over the parcel to the Investigating Officer on 16.11.2021 after the registration of the FIR---However, the evidence provided by the Investigating Officer was silent regarding the safe custody of the parcel till its dispatch to the Chemical Examiner---Investigating Officer mentioned that he dispatched the parcel to the Chemical Examiner on next day i.e. 17.11.2021, without explaining where he kept the parcel during the 24-hours period from 16.11.2021 to 17.11.2021---Furthermore, the Investigating Officer stated that he delivered the parcel to Police Constable and made entry No.5, after which he left the Police Station at 10:30 hours for which he produced a document---However, the Chemical Report produced by the Investigating Officer indicated that the parcel was received through Police Constable on 17.11.2021---On the other hand, during cross-examination, the mashir of the recovery clearly testified that the Investigating Officer handed over the case property to him on 17.11.2021 at 10.00 am for depositing it in the Chemical Laboratory---Evidence of the Investigating Officer was recorded after the evidence of mashir but he failed to testify about Road Certificate---As a result, the evidence of the Investigating Officer and mashir appeared to be contradictory regarding the delivery of the parcel to the Chemical Examiner---In such a situation, if evidence of Investigating Officer was believed then credibility of the mashir became doubtful and unreliable---Safe custody of recovered substance as well as safe transmission had not been established before the Trial Court---Mere recovery of narcotics was not the sole criterion for convicting an accused charged with trafficking of contraband---Prosecution must prove the recovery beyond reasonable doubt with confidence-inspiring and reliable evidence, which unfortunately was not the case in the present case---Appeal against conviction was allowed, in circumstances.

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

----S. 9(b)---Possession of narcotic---Appreciation of evidence---Safe transmission of samples to chemical examiner not established---Contradictions and inconsistency in the case of prosecution---Prosecution case was that 700 grams charas was recovered from the possession of the accused---Notably, the Investigating Officer failed to provide any information as to who kept the parcel in malkhana, even though an attested photocopy of entry No. 137 of Register No. 19 of malkhana was produced---Additionally, neither the statement of the incharge of malkhana was recorded nor he was produced as a witness to establish the safe custody of the parcel from 16.11.2021 to 17.11.2021---Moreover, there were two conflicting claims about the delivery of the sealed parcel to the Chemical Examiner, one from mashir and another from Police Constable, who stated that the case property in sealed condition along with a letter and Road Certificate were delivered to him by the Investigating Officer, which he then deposited with the Chemical Examiner---Such contradictions raised significant doubts about the proper delivery of the parcel to the Chemical Examiner---Failure of Investigating Officer to establish the safe custody of the parcel, lead to an apparent break in the chain of custody and safe transmission of the parcel in the case---In such situations the benefit should be given to the accused---Further upon close re-examination of the Investigating Officer's evidence, it was observed that during his cross-examination, he failed to recall the name of the person through whom he dispatched the parcel to the Chemical Examiner---Additionally, the Investigating Officer also failed to recognize Road Certificate No. 43179 initially and stated that he dispatched the parcel under Road Certificate bearing the number 121379---However, when Road Certificate was shown to him, he then admitted that it bore Road Certificate No. 43179 and not 121379---Such inconsistency raised doubts about the accuracy and reliability of the evidence provided by the Investigating Officer---Appeal against conviction was allowed, in circumstances.

Javed Iqbal v. The State 2023 SCMR 139 rel.

Nisar Ahmed Bhanbhro for Appellant.

Syed Sardar Ali Shah Rizvi for the State.

Date of hearing: 18th July, 2023.

Judgment

Amjad Ali Bhohio, J.--- Appellant Muhammad Jumman alias Jumo Khaskheli faced trial before the Court of Additional Sessions Judge-I/Special Judge for (C.N.S), Khairpur in Special Case No.63 of 2022. After full-dressed trial, vide judgment dated 01.02.2023, appellant was convicted for offence under Section 9(b) of the C.N.S Act, 1997 and sentenced to five (05) years RI and to pay fine of Rs.40,000/-.In case of default he was ordered to suffer S.I for six (06) months. Appellant was extended benefit of section 382, Cr.P.C.

1. The facts in brief of the prosecution case as emerged from the contents of first information report and the evidence adduced during the trial are that on 16.11.2021 complainant/ASI Roshan Ali Siyal along with police party left police station in Government mobile for patrolling duty vide roznamcha entry No.04 at 1000 hours. During patrolling when police party arrived beside Shahi Mahal situated at the link road leading from Mir Hazar Khan Bugti to Shahi Mahal at 1100 hour, appellant was found in possession of a light blue colour shopper. He tried to escape towards back but was chased and apprehended. On inquiry, he disclosed his name as Muhammad Jumman alias Jumo son of Jiand Khaskheli resident of Qasimabad taluka Kotdiji. Plastic shopper of light blue colour was opened which contained three pieces of charas. The recovered charas was weighed, it became 700 grams. Cash of Rs.500/- was also recovered from possession of appellant. Case property was sealed at the spot. Appellant was arrested and Mashirnama of arrest and recovery was prepared in presence of mashirs. Thereafter, appellant and case property were brought at Police Station Kotdiji where FIR was lodged against him vide crime number 142/2021 under section 9 (b) of CNS Act, 1997.

2. During investigation, the parcel containing charas was sent to the chemical examiner for analysis. Positive report was received. On the conclusion of investigation, Investigating Officer submitted the report under section 173, Cr.P.C.

3. Trial court framed charge against appellant on 11.03.2022 who, in response pleaded not guilty and claimed to be tried.

4. To substantiate it's case, prosecution examined complainant/ASI Roshan Ali (P.W 1, Exh.3), mashir/P.C Fayaz Ali Shah (P.W 2, Exh.4), I.O/ASI Akhtiar Hussain (P.W 3, Exh.5), and Dispatcher/P.C Aftab Hussain (P.W 4, Exh.6). The Special Public Prosecutor (S.P.P) then closed the prosecution's side of evidence with his statement (Exh.7).

5. In his statement recorded under Section 342 of the Cr.P.C, appellant claimed that the report of the Chemical Examiner was manipulated and denied the allegation regarding the recovery of the alleged Charas. However, appellant did not record his statement on oath in disproof of prosecution allegations and likewise did not lead evidence in his defence.

6. The trial Court after hearing the counsel for the parties and examining the evidence brought on the record, through impugned judgment has convicted and sentenced the appellant as stated above. Hence, this appeal is filed.

7. We have heard the counsel representing the appellant, the learned Deputy Prosecutor General (DPG) for the State and with their assistance have carefully examined the Record and Proceedings in Special Case No.63/2022.

8. According to the prosecution's account, the police party, led by ASI Roshan Ali, apprehended the appellant during patrolling on the Link Road that leads from Mir Hazar Khan Bugti towards Shahi Mahal. They recovered a light blue plastic shopper containing three pieces of Charas. Mashir PC Fayyaz Ali Shah stated that the complainant took approximately 10 to 15 minutes in sealing the case property and marking it. However, during their presence at the place of incident, no private person came across them. Such assertion creates a doubt in prudent mind, considering that the alleged Charas was recovered during daylight hours at 11:00 am on the link road.

9. According to the complainant, he handed over the parcel to the I.O/ASI Akhtiar Hussain on 16.11.2021 after the registration of the F.I.R. However, the evidence provided by the I.O is silent regarding the safe custody of the parcel till its dispatch to the Chemical Examiner. The I.O mentioned that he dispatched the parcel to the Chemical Examiner on next day i.e 17.11.2021, without explaining where he kept the parcel during the 24-hour period from 16.11.2021 to 17.11.2021. Furthermore, the I.O stated that he delivered the parcel to PC Aftab and made entry No.5, after which he left the Police Station at 10:30 hours for which he produced a document as Exhibit 5-D. However, the Chemical Report produced by the I.O indicated that the parcel was received through PC Aftab Hussain via memorandum/RC No. 43179 dated 17.11.2021.On the other hand, during cross-examination, the mashir of the recovery, PC Fayyaz Ali Shah, clearly testified that the SIO handed over the case property to him on 17.11.2021 at 1000 hours for depositing it in the Chemical Laboratory. It would be pertinent to mention that the evidence of the I.O was recorded after the evidence of mashir Fayyaz Ali Shah, but he failed to testify about R.C at Exhibit 4-B. As a result, the evidence of the I.O and mashir Fayyaz Ali Shah appears to be contradictory regarding the delivery of the parcel to the chemical examiner. In such a situation, if evidence of I.O is believed then credibility of the mashir becomes doubtful and unreliable. Safe custody of recovered substance as well as safe transmission have not been established before the trial Court.

10. It is well-established that in order to prove guilt in narcotic cases, the prosecution must prove the recovery through reliable evidence. Time and again it has been held by Superior Courts that even a single doubt in the case would make the prosecution evidence unbelievable and untrustworthy of credence. Mere recovery of narcotics is not the sole criterion for convicting an accused charged with trafficking of contraband. The prosecution must prove the recovery beyond reasonable doubt with confidence-inspiring and reliable evidence, which unfortunately is not the case here due to the contradictions mentioned above.

11. Notably, the I.O failed to provide any information as to who kept the parcel in malkhana, even though an attested photocopy of entry No. 137 of Register No. 19 of malkhana was produced. Additionally, neither the statement of the incharge of malkhana was recorded nor he was produced as a witness to establish the safe custody of the parcel from 16.11.2021 to 17.11.2021. Moreover, there are two conflicting claims about the delivery of the sealed parcel to the chemical examiner - one from mashir Fayyaz Ali Shah, as mentioned earlier, and another from P.C Aftab Hussain, who stated that the case property in sealed condition, along with a letter and R.C, were delivered to him by the I.O, which he then deposited with the Chemical Examiner. These contradictions raise significant doubts about the proper delivery of the parcel to the chemical examiner. Failure of I.O to establish the safe custody of the parcel, leading to an apparent break in the chain of custody and safe transmission of the parcel in this case. In situations like this, the benefit should be given to the accused, as held by the Honorable Supreme Court of Pakistan in the case of Javed Iqbal v. The State (2023 SCMR 139). The relevant excerpt from the aforementioned case is reproduced below for reference:

2024 Y L R 1826

[Sindh]

Before Zafar Ahmed Rajput, J

Fida Muhammad and another---Applicants

Versus

The State and 2 others---Respondents

Criminal Bail Applications Nos. 296 and 842 of 2023, decided on 6th July, 2023.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotics---Bail, grant/ refusal of---Further inquiry---Accused were charged that they were found in possession of 47 kilograms methamphetamine---As regard accused "H", it appeared that he was the proprietor of the firm that shipped three consignments owned by accused "F" including the two from which narcotics were recovered---As per prosecution, "H" arranged financial instrument for the shipment of the impugned consignment to "F"---From the interim challan, it was established that "H" was not found beneficiary of the sale proceeds of the contrabands---In Interim challan, final challan and supplementary challan, "H" had been nominated as an accused for the alleged offence under the Control of Narcotic Substances Act, 1997, without assigning any role---As per prosecution, "H" failed to exercise due diligence and thereby he allowed unauthorized use of his firm by "F" to export his consignment---Such act of the applicant "H"was in violation of S.155-E of the Customs Act, 1969, for which User ID of firm had been blocked---However, as per material available with prosecution, the said applicant had not been found involved in purchasing of salt and packing material for using in smuggling of narcotics or in hiring of the plot where the goods were placed and packed or in funding of the shipment and transportation of the goods from the warehouse to the port---No incriminating evidence was available with prosecution against the said applicant "H" connecting him with the commission of an offence under the Act---Merely using export I.D, license, etc., of the said applicant's company did not constitute per se any offence under the Act---Hence, in such a situation keeping the said applicant "H" behind the bars for an indefinite period would serve no purpose---From the tentative assessment of the evidence on record, it appeared that the prosecution had sufficient material against the applicant "F" to connect him with the commission of alleged offence carrying punishment for death or imprisonment for life---No case for granting bail to "F" on the ground of further inquiry had been made out---Every hypothetical question which could be imagined would not make it a case of further enquiry simply for the reason that it could be answered by the trial Court subsequently after evaluation of evidence---Trafficking/smuggling of ICE in huge quantity could have devastating effects on the society generally and it was a threat to honour of the country in international community particularly---Bail application filed on behalf of "F" was dismissed, accordingly---So far as the bail plea of applicant "H"was concerned, the case against him was found as one of further inquiry as envisaged under subsection (2) of S.497, Cr.P.C.---Bail application filed on behalf "H" was allowed, in circumstances.

Sh. Muhammad Tasleem v. The State 2006 SCMR 468; Haji Inayat and another v. The State 2010 PCr.LJ 825; Muhammad Faisal v. The State 2006 YLR 3039; Ejaz Ali v. The State 2009 MLD 773; Nasir Aziz and another v. The State 2020 YLR 1429; Mst. Hameeda Begum alias Hameedee and others v. The State 2009 YLR 73; Zahid Sultan v. The State and another 2019 YLR 2798; Ismaeel v. The State 2010 SCMR 27; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Inzar v. The State 2013 PCr.LJ 843; Gul Zaman v. The State 1999 SCMR 1271; Noor Khan v. The State 2021 SCMR 1212; Bilal Khan v. The State 2021 SCMR 460; Fareed Ahmed and another v. The State 2023 PCr.LJ 583; Lutufullah v. The State 2020 PCr.LJ 184 Syed Muhammad Ayaz v. The State 2020 YLR Note 160 and Muhammad Suleman v. The State 2022 MLD 735 ref.

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

----Ss. 497 & 498---Bail---Scope---Observations made in bail orders are tentative in nature and do not influence the trial Court while deciding the case of the applicants on merits.

Abdul Wahab Baloch, S.M Shuja Abbas and Abbas Hayder Gaad for Applicants (in Criminal Bail Applicantion No. 296 of 2023).

Muhammad Ashraf Qazi and Iftikhar Ahmed Shah for Applicant (in Criminal Bail Application No. 842 of 2023).

Pervaiz Ahmed Memon and Khalid Rajpar for Assistant Collector of Customs Collectorate of Exports (PMBQ), Karachi and Muhammad Ahmed and Qazi Ayazuddin Qureshi, Assistant Attorney Generals for the State.

Dates of hearing: 14th and 16th June, 2023.

Order

Zafar Ahmed Rajput, J.---By this common order, I intend to dispose of above listed both criminal bail applications as the same, being arisen out of Crime/FIR being No. SI/ MISC/ 201/ 2022-EXP-EW, registered under sections 6, 7, 8 and 9 (c) of the Control of Narcotic Substances Act, 1997 (the "Act") at P.S. Customs, Karachi have been heard by me together.

1. Applicants/ accused Fida Muhammad son of Ghulam Dastageer and Humair Qureshi son of Munir Qureshi through listed Cr. Bail Applications, respectively, seek post-arrest bail in aforesaid crime. Earlier their applications for the same relief bearing No. 05/2023 and 46/2022 in Special Case No. 68/2022 were dismissed by the Special Court-II (C.N.S.), Karachi vide orders, dated 21.01.2023 and 05.04.2023.

2. Brief facts of the case, as narrated in the FIR. lodged on 01.07.2022, are that complainant Shahzad Ahmed, Appraising Officer, Collectorate of Customs Exports, Customs House, Karachi examined a Consignment/ Container No. PCIU-0083453 (the "impugned Consignment") at Pakistan International Container Terminal ("PICT"), Collectorate of Customs Exports, Karachi, in presence of two musheers and recovered 47 Kg white crystal color methamphetamine (ICE) from 165 pouches of assorted weight. The applicant Fida Muhammad is nominated in the F.I.R. as the actual owner of the impugned Consignment. The case has been investigated by the I.O Mairaj Muhammad, who submitted Interim Challan, Interim Challan- II, Final Challan and Supplementary Challan on 19.07.2022, 01.10.2022, 01.11.2022 and 07.02.2023, respectively.

3. Learned counsel for the applicant Fida Muhammad has contended that the applicant is innocent and he has no nexus with the alleged offence and he has been falsely implicated in this crime with ulterior motives by the customs officials; that all the witnesses are official witnesses and sub-ordinate to the complainant, who have acted at the behest of the complainant to endorse his false and fictitious version; that a bare perusal of the primary data/record collected by prosecution reflects that the impugned Consignment of salt was exported by co-accused Humair Qureshi, who is the owner of the export company i.e. M/ s. Qtinity and he filed Goods Declaration No. KPEX-SB-182651, dated 29.06.2022 (the "GD") electronically through their authorized clearing agent M/s. AI Kasib as well as the financial instrument also pertains to M/s. Qtinity, which fact alone rules out the involvement of the applicant in the alleged offence; that the applicant has been implicated in the alleged offence on the basis of fake WhatsApp texts, the authenticity thereof would be determined at the time of trial; hence, the guilt of the applicant requires further inquiry. In support of his contentions, learned counsel has relied upon the cases of (i). Sh. Muhammad Tasleem v. The State (2006 SCMR 468) (ii). Haji Inayat and another v. The State (2010 PCr.LJ 825) (iii). Muhammad Faisal v. The State (2006 YLR 3039) (iv). Ejaz Ali v. The State (2009 MLD 773) (v). Nasir Aziz and another v. The State 2020 YLR 1429; (vi) Mst. Hameeda Begum alias Hameedee and others v. The State (2009 YLR 73) (vii). Zahid Sultan v. The State and another (2019 YLR 2798) (viii) Ismaeel v. The State (2010 SCMR 27) (ix). Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) (x). Inzar v. The State (2013 PCr.LJ 843) (xi). Gul Zaman v. The State (1999 SCMR 1271) and an unreported order, dated 31.03.2023, passed by a Single Bench of this Court in Cr. Bail Applications Nos. 565 and 566 of 2023.

4. Learned counsel for the applicant Humair Qureshi has maintained that the applicant is an exporter; he is the owner of M/s. Qtinity and is a victim of circumstances; that the applicant has not been named as an accused in the F.I.R.; that the applicant since day one has joined investigation and all along has cooperated with the customs authority; that the applicant has not been nominated as an accused in Interim Challan, dated 19.07.2022, by the Investigating Officer; that in Interim Challan-II and Final Challan, dated 01.10.2022 and 01.11.2022, the applicant has been nominated by the I.O. as an accused, without collecting any incriminating evidence against him, merely for the reason that he is the owner of the said export company; that in Supplementary Challan, dated 07.02.2023, it is clearly mentioned that the co-accused Fida Muhammad was the owner of the impugned Consignment, who with the active connivance and assistance of Haji Sattar alias Haji Aga, Devrim Dereli alias Sher Khan alias Selvi, Muhammad Siddique and Saifuddin committed the alleged offence and no specific role has been assigned to applicant Humair Qureshi for commission of the alleged offence; that co-accused Fida Muhammad overall exported three consignments through the applicant's said company; that it proves beyond doubt that the applicant was not a beneficiary of the goods exported through his said company and he in fact allowed export on his company's account to oblige co-accused Fida Muhammad; that it is clearly established that the applicant was an exporter of the impugned Consignment only on paper and the documents of his company were misused by co-accused Fida Muhammad; that co-accused Taha Hussain Khan vide Order, dated 12.10.2022, has been granted post-arrest bail in the instant case by the Special Court-II (C.N.S.) Karachi and the applicant's role is similar to Taha Hussain Khan; hence, the applicant is also entitled to the concession of bail on rule of consistency; that the learned Court below in paragraph-8 of the impugned order has observed that the applicant was negligent by not obtaining an undertaking from the actual owner of the consignment, Fida Muhammad; that it is established principle of criminal jurisprudence that negligence cannot amount to criminal liability, therefore the applicant's case falls within the ambit of further inquiry.

5. Conversely, learned counsel for the Customs Department and Assistant Attorney Generals have opposed the applications on the grounds that the applicant Fida Muhammad was the owner of impugned consignment; that the applicants got issued Form-E and filed fake documents and submitted false description of the export goods; that applicant Humair Qureshi failed to exercise due diligence and thereby he allowed unauthorized use of his firm (M/s. Qtinity) by applicant Fida Muhammad to export his consignment; that the applicants are involved in smuggling of ICE in huge quantity. In support of their contentions, they have relied upon the cases of (i). Noor Khan v. The State (2021 SCMR 1212) (ii). Bilal Khan v. The State (2021 SCMR 460) (iii). Fareed Ahmed and another v. The State (2023 PCr.LJ 583) (iv). Lutufullah v. The State (2020 PCr.LJ 184) (v). Syed Muhammad Ayaz v. The State (2020 YLR Note 160) and (vi). Muhammad Suleman v. The State (2022 MLD 735).

6. Heard, Record perused.

7. It may be observed that the ICE (also named as Ice drug, crystal methamphetamine and crystal meth) is a new anathema and social abuse in our society. As per publication of National Drug Intelligence Centre, Washington, available at www.usdoj.gov/ndic, it is a colorless, odorless form of methamphetamine, a powerful and man-made highly addictive synthetic stimulant. Like powdered methamphetamine (another form of methamphetamine). It is abused because of the long-lasting euphoric effects it produces. It, however, typically has a higher purity level and may produce even longer-lasting and more intense physiological effects than the powdered form of the drug. The most common names for ICE are crystal and glass. It is smoked using glass pipes similar to pipes used to smoke crack cocaine. It is also swallowed and may be injected with a needle and taken by snorting it (inhaling though the node) and is increasingly gaining popularity as a "party" and "club" drug. Under the Schedule-I to the Act, methamphetamine is specified at serial No. 47 as 'psychotropic substance'. Section 9 (2) of the Act (as amended by the Act No. XX of 2022, promulgated on 02.09.2022) provides punishments with death or life imprisonment for possessing, importing or exporting and trafficking of 'methamphetamine (ICE)' in contravention of sections 6, 7 and 8 of the Act for more than four kilograms in quantity.

8. It appears from the perusal of the record that M/s. Qtinity, having its office in Karachi, electronically filed the GD destined to Melbourne, Australia consisting of two containers (PCIU0083453 and PCIU1121882) through their authorized Clearing Agent M/s. Al Kasib by declaring the description of the goods as Salt, with declared value of US$ 37796.9410 against Financial Instrument of Bank Alfalah Limited, Pakistan. The WeBOC system allowed loading under yellow channel on the basis of profile of the exporter. However, keeping in view the risky nature of the goods and destination, the same were put for examination by AC Examination of PICT. The complainant destuffed the impugned Consignment in the presence of two musheers, which led to the recovery of 1250 corrugated cartons; the same were opened one by one which yielded the recovery of assorted brand/packing of "Himalayan Pink Salt". The recovered pouches were further opened and checked one by one. During this exercise some pouches were found stuffed with narcotic substance. Upon this development, minute examination of all the pouches was carried out wherein 85 cartons containing 165 pouches of assorted weight were found stuffed with narcotic substance, which was tested with the help of Narcotics Test Kit, which gave positive inference of the presence of 47 kg ICE. Three representative samples of the recovered ICE were drawn from said pouches, which were sealed in PVC zip lock bags and numbered from 01 to 165 in order to keep their sanctity intact. The recovered ICE along with the container was seized under mashimama prepared on the spot. Subsequently, the clearing agent and exporter were called and enquired about the recovery of the ICE from the impugned Consignment, to which they disclosed that the same was handed over to them by Fida Muhammad, who was arrested and from his personal search two mobile phones were recovered. The other container (No. PCIU1121882) was also destuffed which was found containing packaging of Himalayan Pink Salt.

9. It further appears that, on 29.06.2022, applicant Fida Muhammad made impugned shipment through M/s. Qtinity by hiring clearing services of M/s. Al Kasib. As per the material available with the prosecution, Fida Muhammad purchased the salt and packing material from M/s. Rao Salt Factory, Bin Qasim Town, Karachi and made payment through his bank accounts. He bought extra pouches from M/s. Rao Salt Factory which were later used for packing of narcotics. The salt in packing of 50 kg bags was delivered by M/s. Rao Salt Factory to Fida Muhammad at his given address of Plot No.B-497, Ahsanabad, Gulshan-e-Maymar, Karachi where the packing of salt and narcotics was made. The said plot was acquired by Fida Muhammad on rental basis. After packing of the salt and narcotics for export, co-accused Siddique alias Lali, one of the close associates of Fida Muhammad, shifted the goods to Mama Godown, Maripur on 27.04.2022 for warehousing. Fida Muhammad himself booked the containers No.PCIU-0083453 and PCIU-1 121882 through freight forwarder M/s Swift Shipping Agency (Pvt.) Limited and uploaded the containers' details on WhatsApp group (Qtinity/Swift/ Rotterdam) for intimation and coordination of group members. The goods were loaded under his supervision in the containers at Mama Godown on 29.06.2022. He got Container Release Order (CRO) of both containers and uploaded the same on said WhatsApp group for intimation and further coordination. After collection of CRO, he visited office of M/s. Al Kasib and personally handed it over to one of the employees of M/s. Al-Kasib. Weighment of both the said containers were made by Fida Muhammad from Muslim Kanta, Mauripur and the weighment slip was uploaded by him on the said WhatsApp group for preparation of the GD. Mairajuddin, an employee of M/s. Al Kasib, filed the GD on 29.06.2022 and he got repeated instructions from Fida Muhammad regarding quantity and value of goods for declaration. During the preparation of the GD, there was confusion about the quantity; Mairajuddin asked Fida Muhammad about correct value and quantity which he accordingly advised. The evidences collected during investigation and analysis of the forensic report, WhatsApp conversation, voice notes, videos, images, text messages, CDR, bank accounts, WeBOC profile, data of NADRA, information/ data of Excise and Taxation Department Sindh, statements of the owners of M/s. Rao Salt Factory and said Plot, prima facie reveal the mens rea of applicant Fida Muhammad in planning and execution of massive smuggling attempt with the connivance of his accomplices.

10. It also appears that applicant Fida Muhammad during his business activities from 04.02.2022 to 29.06.2022 shipped six consignments to four different destinations by using services of three different export companies. Out of them, he used financial instrument of the M/s. Qtinity in following three shipments:-

(i) Consignment of cotton rolls grey fabric, exported vide GD No. KPEX-SB-147422, dated 15.04.2022 destined for Rotterdam.

(ii) Consignment of cotton rolls grey fabric (plain weave), exported vide GD No. KPPE-SB-298611, dated 14.06.2022 destined for Rotterdam (subject matter of the F.I.R. No. SI/MISC/22/2022-EIB/EXP-PMQB)

(iii) Consignment of Himalayan Pink Salt vide GD No. KPEX-SB-182651, dated 29.06.2022 to Melbourne, Australia. (subject matter of the present F.I.R.)

During the course of investigation, it transpired that the applicant Fida Muhammad had earlier exported a consignment of grey fabric under GD No. KPPE-SB-298611 in container No.MSCU6590981 (referred to in sub-para (ii) above) from the Collectorate of Customs Exports, Port Muhammad Bin Qasim ("PMBQ"), Karachi to Rotterdam, Netherlands, which was en route but brought back to Pakistan without offloading at the destination by approaching to shipping agency, namely, M/s. Sharaf Shipping Agency vide Customs Collectorate's letter, dated 07.07.2022. The said consignment arrived back on 16.08.2022 at IC3 Yard, PMBQ, Karachi, where a joint team comprising of examination staff of Collectorate of Customs Exports, Karachi and Collectorate of Customs Exports (PMBQ), Karachi destuffed the goods of the container, which led to recovery of wrapped cones beneath the fabric containing concealed 380 Kg of heroin and for that a separate F.I.R. being No. SI/ MISC/ 22/2022-EIB/EXP-PMQB), dated 22.08.2022, was registered at Collectorate of Customs Exports PMBQ, Karachi.

1. As regard applicant Humair Qureshi, it appears that he is the proprietor of M/s. Qtinity that shipped three consignments owned by Fida Muhammad including the two from which narcotics were recovered. As per prosecution, he arranged financial instrument for the shipment of the impugned Consignment to Fida Muhammad. From the Interim Challan, it is established that he was not found beneficiary of the sale proceeds of the contrabands. In Interim Challan-II, Final Challan and Supplementary Challan, he has been nominated as an accused for the alleged offence under the Act without assigning any role. As per learned counsel for the Customs Department, he failed to exercise due diligence and thereby he allowed unauthorized use of his firm (M/s. Qtinity) by Fida Muhammad to export his consignment. Such act of the applicant Humair Qureshi is in violation of section 155E of the Customs Act, 1969 for which User ID of M/ s. Qtinity has been blocked. However, as per material available with prosecution, the said applicant has not been found involved in purchasing of salt and packing material for using in smuggling of ICE or in hiring of the plot where the goods were placed and packed or in funding of the shipment; transportation of the goods from the warehouse to the port. It is also an admitted position from the record that no incriminating evidence is available with prosecution against the said applicant to connect him with the commission an offence under the Act. Merely using export I.D, license, etc., of the said applicant's company does not constitute per se any offence under the Act. Hence, in such a situation keeping the said applicant behind the bar for an indefinite period will serve no purpose.

2024 Y L R 1845

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Dildar Khan and another---Appellants

Versus

Mst. Fatima Bibi and others---Respondents

C.P. No. S-655 of 2004 and II Appeal No. 32 of 2006, decided on 5th April, 2024.

Sindh Rented Premises Ordinance (XVII of 1979) (I of 1877)---

----S.15---Specific Relief Act (I of 1877), S.12---Qanun-e-Shahadat (10 of 1984), Art. 114---Ejectment of tenant---Specific performance of agreement to sell---Petitioner was plaintiff/tenant in suit property and contended to be owner in possession on the basis of agreement to sell---Lower Appellate Court passed eviction order against petitioner on the basis of ejectment proceeding initiated by respondent / defendant / landlord---Validity---Original tenancy was not disputed and plaintiff/tenant took the defense that he had purchased the property through a sale agreement---Onus to prove a genuine and bona fide sale transaction was on plaintiff/tenant to avoid adverse consequences mentioned in Art. 114 of Qanun-e-Shahadat, 1984, [an estoppel]---Rule enunciated through judgments of Superior Courts was that in such a situation, first possession should be delivered to landlord and then tenant could contest his case for specific performance---High Court in exercise of Constitutional jurisdiction declined to interfere in judgment passed by Lower Appellate Court as no illegality was pointed out by plaintiff/tenant---High Court directed that demised premises should be vacated or writ of possession would be issued by Rent Controller acting as Executing Court---Constitutional petition was dismissed, in circumstances.

Alloo v. Sher Khan and others, PLD 1985 SC 382; Muhammad Ikhlaq v. Sheikh Muhammad Saeed 1991 CLC 2064; Abdul Majid (Represented by Legal Heirs) v. Dr. Din Muhammad (Represented by Legal Heirs) 1980 CLC 513; Ashiq Ali and 3 others v. Muhammad Hashim and 8 others 1984 MLD 951; Muhammad Muzaffar Khan v . Muhammad Yusuf Khan PLD 1959 SC 9; Sheikh Muhammad Muneer v. Mst. Feezan PLD 2021 SC 538 and Sajjad Ahmed Khan v. Muhammad Saleem Alvi and others 2021 SCMR 415 ref.

Muhammad Nisar v. Izhar Ahmed Shaikh PLD 2014 SC 347 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320 rel.

Zahid Marghoob for the Appellants.

Moulvi Iqbal Haider for Respondent No. 1.

Nemo for Respondent No. 2 (in the Second Appeal).

Dates of hearings: 22nd February, 7th March and 11th March, 2024.

Case Law cited by Advocate for the Appellant / Petitioner:

1. Alloo v. Sher Khan and others, PLD 1985 SC 382

2. Muhammad Ikhlaq v. Sheikh Muhammad Saeed, 1991 CLC 2064.

3. Abdul Majid (Represented by Legal Heirs) v. Dr. Din Muhammad (Represented by Legal Heirs), 1980 CLC 513.

4. Ashiq Ali and 3 others v. Muhammad Hashim and 8 others, 1984 MLD 951.

5. Muhammad Muzaffar Khan v. Muhammad Yusuf Khan - Muzaffar Khan Case, PLD 1959 SC 9.

Case law relied upon by Respondent's counsel.

1. Sheikh Muhammad Muneer v. Mst. Feezan - Sheikh Muneer case PLD 2021 SC 538

2. Sajjad Ahmed Khan v. Muhammad Saleem Alvi and others 2021 SCMR 415

Law under discussion:

1. Specific Relief Act, 1887 [SRA].

2. Sindh Rented Premises Ordinance, 1979 [SRPO].

Judgment

Muhammad Faisal Kamal Alam, J.---Due to commonality, both the titled Constitution Petition (relating to Rent proceeding) and Second Appeal (relating to Suit for Specific Performance), are decided by this common Judgment. Subject matter of these Cases is two shops on ground floor in a built up property situated on Plot No. 1416, admeasuring 104.62 Square Yards, situated in Welfare Colony, University Road, Katchi Abadi Sindh, Karachi.

1. Undisputed facts are that the Two Shops [demised premises] were let out to Petitioner in the titled C.P. No. S-653 of 2004, who is the Appellant in titled Second Appeal No. 32 of 2006, (Dildar Khan) by Mst. Qasim Jan, the deceased Mother of present Respondent in both the Cases, namely, Fatima Bibi, on the monthly rent of Rs.2,200/- [for both Shops]. The deceased Mother through a registered Gift Deed had gifted the Subject Property to her three children, namely, Abdul Rasheed (son and brother of Fatima Bibi), Mst. Zubaida (daughter and sister of Fatima Bibi) and present Respondent - Fatima Bibi.

2. It is the claim of Dildar Khan that his wife Mst. Badarunisa had purchased the share of Mst. Zubaida (sister of Fatima Bibi) through a registered Instrument/Sale Deed dated 15.06.1999 [Exhibit P-3], and he [Dildar Khan], purchased the share of Fatima Bibi / Respondent through a Sale Agreement dated 13.04.1997 [Exhibit P], against a sale price of Rs.350,000/-, out of which Rs.200,000/- and subsequently Rs.105,000/- on the insistence of present Respondent, were already paid to Fatima Bibi, leaving a balance of Rs.45,000/-, but due to her refusal to complete the transaction, Suit for Specific Performance, being Civil Suit No. 774 of 1999 was filed. Subsequently, Respondent/Fatima Bibi filed the Rent Case No.450 of 2001 for evicting the Petitioner/Appellant from the demised premises.

Fatima Bibi had filed a Written Statement in the above Suit and has denied the entire sale transaction, whereas, present Petitioner in his Written Statement in the Rent proceeding has denied his status as Tenant and reiterated that he is a Purchaser. The Rent Application preferred by Fatima Bibi is on three grounds, viz. Default in payment of rentals so also utility bills, since 01.07.1996 at the rate of Rs.4,400/- per month up to 31.05.2001 (when the Rent Case was filed), personal bona fide need as four sons of present Respondent want to start their own business and making structural changes, which would impair the material value or utility of the demised premises.

In her Written Statement to the Specific Performance Suit, not only the sale transaction between the parties hereto (Dildar Khan and Fatima Bibi) has been categorically denied, terming the above Sale Agreement as bogus and fake, but Respondent-Fatima Bibi also denied that her sister Mst. Zubaida, executed any Sale Deed in favour of wife of Dildar Khan (Mst. Badarunisa). In Rent proceeding, the above named wife of Dildar Khan also became Opponent No.2, after her First Rent Appeal was allowed and then amended Rent Petition was filed by Fatima Bibi so also amended Written Statement was filed by Dildar Khan.

1. The Rent Case was decided against Fatima Bibi on the ground that above Specific Performance Suit is pending in which status quo is given, in addition to the fact, that Fatima Bibi is required to get established her title by filing a Suit for Partition and then prefer an Ejectment Application against the Opponent. This Order was successfully challenged in Appeal and was overturned in favour of Fatima Bibi against which Dildar Khan has filed the present Constitution Petition; whereas, the above Specific Performance Suit was decided and decreed in favour of Dildar Khan, which was overturned in Civil Appeal No.84 of 2005, preferred by Fatima Bibi, which is challenged now through the titled Second Appeal.

2. Mr. Zahid Marghoob, Advocate representing Appellant / Petitioner, has argued that the both the impugned Decisions in Suit and Rent proceedings, are contrary to law, inter alia, as appraisal of evidence was not properly done by the Appellate Courts and plausible reasons are not mentioned in the impugned Judgments, for overturning the Decisions of learned Trial Court and Rent Controller, which are based on proper appraisal of the evidence; contended that question of default and other grounds of eviction do not arise in the case of Dildar Khan, because no relationship of Landlord and Tenant exists between the Parties hereto, in view of the fact, that the demised premises was subsequently purchased by Dildar Khan and his wife, from the above Ladies, that is, Mst. Zubaida through a registered Sale Deed [ibid] and Fatima Bibi, through the Sale Agreement, thus, the finding of Rent Controller is correct, which was wrongly overturned in the Appeal and same should be sent a naught in the present proceeding; contended that finding of the Appellate Court [in Appeal arising of Suit proceeding], that execution of Sale Agreement and Receipt by Fatima Bibi, has not been proved and Appellant did not invoke Article 59 of the Evidence Law (relating to expert opinion, inter alia, concerning identity of handing writting or finger impression), is erroneous. Learned counsel has relied upon the case law mentioned in the opening part of this Judgment.

3. The above arguments are controverted by Mr. Maulvi Iqbal Haider, Advocate representing Fatima Bibi. While supporting both the impugned Judgments, he contends that even the alleged sale transaction between wife of Dildar Khan and sister of Fatima Bibi is highly doubtful, besides the fact, that the said sister (Mst. Zubaida) was never called to verify such a fact in favour of Dildar Khan. Onus to prove Sale Transaction was on Dildar Khan, which he failed to prove as required under Articles 17 and 79 of the Evidence Law. He has citied two unreported Judgments of Honourable Supreme Court mentioned in the title of this Judgment.

4. Arguments heard and record perused.

5. Summary of the case law cited by Petitioner / Appellant's counsel, Mr. Zahid Marghoob, Advocate, is, that if a purchaser pruchased an undivided 'Khata' is clothed with the same right as the Vendor has in the property, and the Vendee must be regarded as stepping into the shoes of his transferer qua his ownership rights in the joint property, to the extent of area purchased by him. First Appellate Court should give reasons, if differing on finding of fact reached by the learned Trial Court, only then its decision would be immune from interference in Second Appeal. When the two attesting witnesses of the sale agreement are examined and they have confirmed the signature of Vendor (who is not alive), then on mere conjecture, it cannot be held, that Vendor has not signed the sale agreement. Receipt is proven in a sale transaction of a property, then burden to prove fabrication is clearly on the defendant. When a payment receipt is an undisputed document, then it can be treated as agreement of sale between the parties, if the said receipt mentions the total sale consideration, payment receipt, Vendor, Vendee and description of the property. Signature denied on a receipt, then Rent Controller (of the reported case) should have got the signatures of appellant compared with the signatures on the admitted document.

6. First the Second Appeal is considered. Dildar Khan besides examining himself has produced three witnesses, namely, Farzaman son of Noor Ali, Imtiaz son of Fazul-ur-Rahman and Bashir Ahmed son of Nawab, whereas, Fatima Bibi examined herself and one more witness Mst. Areeza.

7. Sale Agreement in question is produced as Exhibit-P, Payment Receipt as Exhibit P/3, Sale Deed dated 15.06.1999 between Zubaida Khanam (sister of Fatima Bibi) and Dildar Khan is also produced as Exhibit-P/3 (Page-125 of the R&P), the undisputed Gift Deed is produced by both Dildar Khan and Fatima Bibi [Exhibit D/2]. An Iqrarnama () dated 20.07.1996, purportedly, signed by deceased mother of Fatima Bibi, as Exhibit P/4 (Page-141 of R&P). With regard to this Iqrarnama, it is stated in the Affidavit-in-Evidence (Paragraph-7), that it was signed by the Deceased Mother [of Respondent], because she received a sum of Rs.165,000/-, from Dildar Khan for selling out a portion in the Subject Property. However, this plea was never taken in the Plaint, nor it is mentioned in cause of action or prayer clause.

8. It is pertinent to mention that the purported Sale Agreement has been witnessed by Attaullah son of Hazratullah and Saleem Shah son of Nazir Hussain, but both witnesses were not produced by the present Appellant / Petitioner-Dildar Khan to corroborate the execution of the said Sale Agreement by the Parties as Vendor and Vendee. This was mandatory, in view of the fact that the entire Sale Transaction and the said Sale Agreement has been categorically disputed not only in the Written Statement of Fatima Bibi filed in the above Suit, but also in the Rent Case filed by her (supra).

9. Dildar Khan in his cross-examination did not deny his original tenancy in the demised premises so also the fact that entire Subject property was gifted by late-mother (Mst. Qasim Jan) to her children in the year 1994. Admitted the fact that his wife (Mst. Badarunisa) did not apply for partition of the Subject Property after purchasing the share of Mst. Zubaida (sister of Fatima Bibi); denied the suggestions that the subject Sale Agreement is a forged one so also Payment Receipt of Rs. 200,000/-; to a question, he showed his ignorance that when the Sale Agreement was prepared. He refuted the suggestion that no address of witnesses is mentioned either in teh Sale Agreement [Exhibit-P] or in the Payment Receipt [Exhibit P/3]; which is self-contradictory and incorrect, as in both these Documents, addresses of the witnesses are not mentioned.

Dildar Khan was confronted on Exhibit P/4- the purported Iqrarnama (ibid). He denied the suggestion that it was a post-dated document, because already the Subject Property was gifted by the deceased mother to her children, including Fatima Bibi. To a question, he has stated that he did not know about execution of Gift Deed and reiterates his stance about the Acknowledgement / Iqrarnama in his favour. This portion of his testimony belies his stance, which is mentioned in his Affidavit-in-Evidence / examination-in-chief and earlier part of cross-examination, in which he himself has stated that the Subject Property was gifted by the deceased Mother to her children including the Respondent vide Gift Deed dated 18.10.1994 (bearing registration No. 2557, available in the record of this Second Appeal, so also at page-31 of the R&P), which Dildar Khan himself had produced in the evidence.

Witness Farzanam has corroborated the evidence of Dildar Khan, besides, stating that above Receipt of Rs.200,000/- [Exhibit P/3] was also signed by Mushtaq Ahmed, husband of Respondent and at the relevant time, Nazar Hussain son of Fatima Bibi was also present. In his cross-examination, he admitted that although payment of Rs.200,000/- was made to Fatima Bibi in his presence, but he did not sign the Sale Agreement.

Imtiaz corroborated the evidence of Dildar Khan and his reply in his cross-examination is similar to that of Farzaman. He is also one of the witnesses of the Receipt-Exhibit P/3.

Bashir Ahmed is also claiming to be the Attorney of Mst. Zubaida Khanum (sister of Fatima Bibi), who has executed the Sale Deed on her behalf in respect of her share in the Subject Property, in favour of wife of Dildar Khan. In his cross-examination, he has denied the suggestion that no Power of Attorney was executed by Mst. Zubaida Khanum in his favour (Bashir Ahmed); but, he did not produce the General Power of Attorney claimed to be executed by Mst. Zubaida [sister of Mst. Fatima Bibi]. This witness has endorsed his Signature on the back side of the Receipt.

1. It is averred by Dildar Khan that the Husband [Muhammad Mushtaq] of Fatima Bibi also signed on the said Receipt-Exhibit P-3, in presence of the witnesses, but Muhammad Mushtaq was never examined.

2. The Respondent - Fatima Bibi in her examination-in-chief has testified that none of the Legal Heirs [her Siblings] have sold their share to anyone; Dilawar Khan was / is the tenant and not a purchaser. Produced the title document of the Subject Property, Search Certificate and the Gift Deed as Exhibit D/2, D/3 and D/4, to prove that it is still in her name along with her Siblings [Brother Abdul Rasheed, Sister-Mst. Zubaida].

In her cross-examination, she denied the suggestion about selling of their shares by her Siblings in the Subject Property to the above named wife of Dildar Khan or Bashir (who is also a witness of Dildar Khan and his evidence is discussed in the foregoing paragraphs); has refuted the suggestion that she sold her share [in the Subject Property comprising of the Demised Premises] to Dildar Khan for an amount to Rs.350,000/-. She has refuted the suggestion that her husband Muhammed Mushtaq signed the Receipt-Exhibit P/2, or she received any amount towards sale consideration in presence of the above-named witnesses of Dildar Khan. She has denied the suggestion that her Deceased Mother received Rs.165,000/- from Plaintiff (Dildar Khan) towards sale of portion in the Subject Property, as claimed by the said Dildar Khan in his Affidavit-in-Evidence [ibid]. In her cross-examination, Fatima Bibi could to be contradicted on any material part of her deposition.

The other witness of Defendant is Areeza, who is a resident of the same neighbourhood. She corroborated the testimony of Fatima Bibi in her Examination-in-Chief, but, in cross-examination, showed ignorance to the suggestion about the sale transaction.

1. A glaring contradiction in the testimony of Dildar Khan has surfaced during appraisal of the evidence. He has attempted to introduce a new case in his evidence, by deposing that he paid a sum of Rs.165,000/- to the deceased mother of the Respondent towards purchase of a portion of the Subject Property (as mentioned in the preceding paragraphs), through an Acknowledgement Document [ibid] and such transaction, according to his evidence, took place on 20.07.1996, whereas, it is an admitted fact that the entire Subject Property was gifted to Fatima Bibi and her Siblings by way of a registered Gift Deed on 18.10.1994, that is, prior to the alleged Sale Transaction between the deceased Mother and Dildar Khan; once, the deceased Mother had transferred her right and interest as the Owner of the Subject Property to her Children, she then cannot deal with the Subject Property subsequently and the above Acknolwedgement Document has no legal value. This part of the testimony [of Dildar Khan] is completely false and is properly dealt with by the Appellate Court in its impugned Judgment. This crucial aspect was neither properly appreciated by the learned Trial Court, nor surprisingly even argued by the Respondent's counsel in the present Case.

2. Admittedly, witnesses of the purported Sale Agreement-Exhibit P, were never examined. This is fatal to the entire claim of Dildar Khan, because the said Sale Agreement and the transaction has been categorically disputed by Fatima Bibi. It means that the Sale Agreement in question had to be proved, as required under Articles 17 and 79 of the Evidence Law, but, the Appellant/Petitioner failed in this regard. The rule laid down in the Judgments cited by the learned Counsel for the Respondent, are relevant, in particular, Sheikh Muneer Case (supra), because in this Case also the alleged sale agreement was said to be executed by the respondent-lady. The Hon'ble Supreme Court has maintained the Decision of the Courts, dismissing the specific performance suit of the petitioner [of the Sheikh Muneer Case], while holding that if only one witness is examined out of the three witnesses of the sale agreement, and no plausible justification is given in terms of Article 80 {proof where no attesting witness found} of the Evidence Law, then, the requirement to prove an agreement as envisaged in Articles 17 and 79 are not fulfilled, followed by the adverse consequences against the claimant of a sale transaction.

3. Dildar Khan's claim regarding payment of Rs. 105,000/- to Fatimah Bibi, for releasing the title document of the Subject Property from the Court, which were kept as Surety, has been disproved, because no receipt has been produced about payment of this amount, which has been denied by Fatimah Bibi in her evidence, and that remains unshaken. Since Dildar Khan has failed to prove the Sale Agreement, hence, Receipt [ibid] allegedly issued in pursuance of the said Sale Agreement, has no legal value.

When the original tenancy is not disputed and a Tenant takes a defense that he has purchased the property through a Sale Agreement, then onus to prove a genuine and bona fide Sale Transaction is on the Tenant, inter alia, in order to avoid adverse consequences mentioned in Article 115 of the Evidence Law [an estoppel] and rule enuciated through Judgments of the Superor Courts, that in such a situation, first possession should be delivered to the landlord and then tenant can contest his case for Specific Performance; the reported Decisions of the Apex Court Muhammad Nisar v. Izhar Ahmed Shaikh PLD 2014 Supreme Court 347 and Abdul Rasheed v. Maqbool Ahmed and others 2011 SCMR 320, are relevant.

1. Claim of Dildar Khan suffers a further setback in view of the Exhibit D/4, which is a Search Certificate dated 17.3.2001, showing the names of Fatima Bibi and her Siblings as the Owners of the Subject Property, which has cast doubt on the genuineness of the said Sale Deed [Exhibit P-3], through which it is claimed that the wife of Dildar Khan has purchased the portion in the Subject Property from Mst. Zubaida, through her above-named Attorney Bashir Ahmed, who came as a Witness of Dildar Khan. Considering these material aspects of the controversy, the evidence of Mst. Areeza - the Witness of Fatimah Bibi loses significance, inter alia, as she is not a witness of any of the Documents involved in the present controversy.

2. The above discussion leads to the conclusion that Decision of the learned Trial Court handed down in Suit for Specific Performance [Suit No. 774 of 1999] has misread the evidence and obverlooked the legal principles. The findings of the learned Trial Court that evidence of the present Appellant and his witnesses remained unshaken, is not only contrary to record, but uncalled for in the circumstances, and has been rightly overturned in the impugned Appellate Judgment.

3. No illegality or substantial error is there in the impugned Appellate Judgment and thus, it is maintained. Consequently, the IInd - Appeal No.32 of 2006, is dismissed.

4. Adverting to C.P. No. S-655 of 2004. Since it has been proven that Petitioner [Dildar Khan] is not a Purchaser but Tenant of Respondent No. 1 - Fatima Bibi, therefore, the Order of the learned Rent Controller in favour of Dildar Khan, which is overturned in Appeal through the impugned judgment, have been taken into account.

5. The learned Rent Controller has mixed up the two Issues of the Sale Deed purportedly executed between Dildar Khan and Siblings of Fatima Bibi and the Sale Agreement in dispute. It has decided Rent Case against the present Respondent by misreading the evidence, inter alia, that since Fatima Bibi did not know the sale of share by her brother to Basheer [one of the above Witnesses], therefore, disputed sale transaction between Fatimah Bibi and Dildar Khan was also adjudged as valid. The Rent Controller erred while deciding the Point No.1 about relationship, inter alia, a 'presumption' that the title Documents [of the Subject Premises] are used for the purpose of execution of Sale Agreement [in dispute], by overlooking the admitted fact that the original Tenancy between the Parties was never disputed.

6. Affidavit-in-Evidence of Fatima Bibi is available in record [at page-129 of C.P. No.S-655 of 2004], wherein, she has reiterated her stance that the Sale Agreement is a forged document and the above Suit No.774 of 1999 filed by Dildar Khan is tainted with mala fide, besides, that Dildar Khan is a defaulter in payment of rent of the demised premises; yet the Rent Controller in his Order, under the Issue No.2, overlooked the evidence in this regard and gave the finding that since property is still un-partitioned and undivided between the joint owners, coupled with the fact that since above Suit No.774 of 1999 was sub judice, therefore, title of Fatima Bibi is to be established, although the same was never in dispute. The learned Appellate Court after appraisal of the evidence has overturned the findings, which is correct, in view of the discussion mentioned in the foregoing paragraphs.

2024 Y L R 1907

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Ch. Ghulam Muhuyuddin and others---Petitioners

Versus

Sheikh Abid and Co. (Pvt) Ltd. and others---Respondents

C.P. No. S-485 of 2010 (along with other connected petitions), decided on 3rd April, 2024.

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

----S.8---Fair rent, fixation of---Petitioners were tenants in multistoreyed building who assailed fair rent fixed by Rent Controller and Lower Appellate Court, on the application filed by respondent company / landlord---Validity---Lower Appellate Court had taken into account the earlier decisions concerning other tenants in the subject building, which were throughout decided in favour of respondent company / landlord---High Court in exercise of Constitutional jurisdiction declined to interfere in fair rent fixed by Courts below as no illegality was pointed out by petitioners---Petitioners were liable to pay their respective rents as fixed by Courts below along with the arrears [if any]---High Court did not appreciate the act of not depositing rent by petitioners on the ground of pendency of instant petition for such a long period, as such conduct was unreasonable and inappropriate---Person, who seeks equity, should also do equity but position of petitioners was inverse---Constitutional petition was dismissed in circumstances.

Akhtar Kamran (deceased) through legal heirs v. Parvez Ahmed and others 2023 SCMR 1147 rel.

Ch. Saeed-u-Zaman for Petitioners (in connected C.Ps Nos.)

Dr. Naheed Abid, the Chief Executive of Respondent No.1-Company for Respondent no.1 (in connected C.Ps. Nos.).

Nemo Respondents Nos. 2 and 3 (in connected C.Ps. Nos).

Muhammad Ateeq Qureshi for Petitioner (in C.P No. S-168 of 2014).

Dr. Naheed Abid, the Chief Executive of Respondent No.1-Company (in C.P No. S-168 of 2014).

Nemo. for Respondent No. 2 (in C.P. No. S-168 of 2014)

Date of hearings: 22nd January, 2023, 6th March, 21st February, 22nd February, 11th March and 12th March, 2024.

Judgment

Muhammad Faisal Kamal Alam, J.---Due to commonality all these titled Constitution Petitions are decided by this common Judgment.

1. All these Petitions have challenged the fixation of fair rent by the learned Rent Controller and the Appellate Court, on the Application filed by the Respondent Company under Section 8 of the Sindh Rented Premises Ordinance, 1979 (SRPO), except C.P. No. S-168 of 2014. These Petitions are related to different Offices / Units, situated in a multistorey Building known as 'ABID CHAMBER', constructed on Plot No.SR, 6/9, Shahrah-e-Liaqaut, New Challi, Karachi.

2. The above Constitution Petition No.S-168 of 2014 is filed against the concurrent findings, directing the eviction of Petitioner, on the ground of personal bona fide need. Since the demised premises of this Constitutional Petition, that is, Office No.1/2, First Floor, is also located in the Subject Building, therefore, this Petition is also decided with the title Petitions.

3. Mr. Ch. Saeed-u-Zaman, Advocate for the Petitioners have argued that both the Courts have erred while handing down their respective Decisions and fixation of fair rent at the rate of Rs.6/- Per Square ft., (this rate varies from Case to Case) for the Tenements, which are the Subject Matters of these Petitions; that when the Petitioners / Tenants were paying rent in lump sum as per the Tenancy Agreement, then fair rent cannot be fixed on the basis of per square ft., as is done in the impugned Decisions and on this ground alone, these Decisions should be set-aside; besides, fact about payment of huge goodwill (Pagri) was not considered; that both the Courts have not appraised the evidence at all, inter alia, as no person from nearby Buildings in the same vicinity was / were examined, nor any Tenancy Agreements were produced; factors as mentioned under Section 8 of the SRPO were not available in the present Cases, inter alia, because the Subject Building is in dilapidated condition with hardly any amenity; that the entire proceeding initiated by the Respondents suffers from material defect, as the Respondent being Company had / has not authorized the present Representative to file such Cases as no Board Resolution was there. Contended that the Petitioners were not given a fair opportunity to lead the evidence and hence in majority of the Rent Cases, the ex-parte Orders were passed by the learned Rent Controller in haste, which is maintained in the Appeal, in violation of statutory provisions of the SRPO. Whereas those Rent Cases (List of the said Rent Cases will be mentioned in the following Paragraph) wherein the evidence was led, the same was not properly evaluated, thus both the Courts have not decided the Cases in accordance with law, which illegality ought to be corrected in this constitutional jurisdiction through a writ of certiorari.

4. Dr. Naheed Abid, the Chief Executive of Respondent No.1-Company is appearing in person. She has supported the impugned Decisions. While addressing the question of maintainability about the alleged Board Resolution of Respondent Company, she has referred to the Supreme Court Order available in record (at page-681 of the Court file in leading C.P. No.S-485 of 2010). It is contended that this issue was decided in favour of the Respondent, besides, that the impugned Decisions in these Petitions are covered by the Judgment of the Hon'ble Supreme Court in the Cases of the other Tenants and the fair rent determined by the Courts below were maintained right up to the Hon'ble Supreme Court, consequently these Petitions should be dismissed.

5. Arguments heard and record perused. To appreciate the rival contentions, Record and Proceeding is also called from the Courts.

6. Case of the Respondent Company (Landlord) being Applicant as averred in the Rent Application under Section 8 of SRPO is, that the Tenants / Petitioners are paying a meagre rent of their respective Units / Tenements ranging from Rs.126/- (rupees one hundred twenty six only) to Rs.860/- (rupees eight hundred sixty only) per month; Respondent carried out repairs, plumbering work, making two Lifts / Elevators serviceable, renovated Electricity Wiring and incurred heavy expenditure. Averred that Petitioners / Tenants failed to pay maintenance charges but enjoying all the basic amenities ; cited rate of rentals of other buildings in the vicinity, which ranges from Rs.6/- per square ft. to Rs.10/- per square ft., exclusive of maintenance charges, of the years 1982 and 1987 (whereas the Rent Applications filed by the present Respondent was in the year 1997); averred that the Respondent paid exorbitant taxes, which have increased with the passage of time. In Paragrpah-11, it is stated that the Petitioners were requested to pay the following enhanced rentals according to location of their Units/ demised Premises, which is reproduced herein under for a ready reference_

"11. That Applicant requested Opponent to pay enhancement rent at the rate in the following manner_

a. Ground Floor Shops / Offices facing Shahrah-e-Liaquat Rs.18 per sq ft, b. Shops / Offices on the ground floor at the Rs.15 per sq ft.

c. Basement and Mezzanine Floor Rs.12 per Sq Ft.

d. First and Second Floor Rs.10 per Sq ft.

e. Third and Fourth Rs.8 per sq ft. and

f. Fifth and Sixth at Rs.6 sq. ft.

which the Opponent has wilfully overlooked and ignored, while some adhered to the request."

The above Application (Rent Case) was contested by the Petitioners through their Written Statement. Relationship of Landlord and Tenant is not disputed. However, it is the stance of Petitioners (Tenants) that no maintenance or repair work has been done by the Respondent and the building in question is in a deplorable state, lacking basic amenities and facilities, which a tenant is entitled to enjoy. The Statement of heavy investment has been categorically disputed being a bogus document.

1. The following Constitution Petitions are those in which evidence was led by the Petitioner and the present Respondent_

1) C. P. No. S - 553/2010

[M/s. Ayoub Brothers v. Sheikh Abid & Co. (Pvt.) Ltd and others]

2) C. P. No. S -554/2010

[M/s. Muhammad H.A Rehman v. Sheikh Abid & Co. (Pvt.) Ltd and others]

3) C. P. No. S -763/2010

[M/s. S. Muhammad Siddique v. Sheikh Abid & Co. (Pvt.) Ltd. and others]

4) C. P. No. S - 552/2010

[M/s. Ghulam Muhammad & Sons v. Sheikh Abid and Co. (Pvt.) Ltd and others]

5) C. P. No. S -761/2010

[Nadeem Ashfaque v. Sheikh Abid and Co. (Pvt.) Ltd. & others]

6) C. P. No. S -764/2010

[Syed Ibadur Rehman v. Sheikh Abid and Co. (Pvt.) Ltd. & others]

7) C. P. No. S -562/2010

[M/s. Consolidated Trading Corp. v. Sheikh Abid & Co. Ltd and others]

8) C. P. No. S - 561/2010

[M/s. Esuf Ali Industries v. Sheikh Abid and Co. Ltd and others]

9) C. P. No. S -560/2010

[M/s. Tengra Brothers v. Sheikh Abid and Co. Ltd and others]

10) C. P. No. S - 558/2010

[M/s. Manzoor Co. v. Sheikh Abid and Co. Ltd & others]

11) C. P. No. S - 557/2010

[M/s. Sultan Enterprises v. Sheikh Abid and Co. Ltd & others]

12) C. P. No. S -556/2010

[M/s. M.A Hanfi Brothers v. Sheikh Abid and Co. (Pvt.) Ltd and others]

13) C. P. No. S -559/2010

[M/s. Mian Corporation v. Sheikh Abid and Co. Ltd and others]

1. In compliance of direction of this Court, a Statement dated 02.03.2011 was filed by the Respondent along with the Board Resolution dated 12.02.2008, inter alia, authorizing her to deal with the Court matters, including tenants of the Subject Building; together with the Decisions of this Court and the Hon'ble Supreme Court.

2. It transpired that earlier Rent Applications / Cases were decided ex-parte, but subsequently they were remanded by the Appellate Court and present Petitioners filed Written Statement, but again neither led the evidence nor cross-examined the Respondent's Representative.

3. Adverting to the question of maintainability. Mst. Naheed Abid, while referring to the Board Resolution (ibid) has stated that this issue was resolved by the Hon'ble Supreme Court in the Civil Petitions Nos.24-K to 26-K of 2009, preferred by other Tenants against the Respondents (as stated in the foregoing Paragraphs). The Decision of the Apex Court is at page-681, Paragraph-5 whereof has discussed the contention of the Petitioners' Counsel about non-filing of the Board Resolution. The Hon'ble Supreme Court is of the view that since the Rent Applications before the Rent Controller were signed by the Chief Executive of the Company, thus, it is a requisite authority available with the Chief Executive [in terms of Section 2(6) of the then Companies Ordinance, 1984] for filing the Rent Proceedings. Therefore, the Board Resolution of 12.02.2008, filed under the Statement of Respondent [in the present Proceeding] is signed by the other Board Directors, is a valid authorization, in view of the observation made in the above Order of the Hon'ble Supreme Court; which is followed by another Board Resolution dated 3-09-2018 [at page 669 of the Court File] bearing Signatures of the other Board Members, reaffirming the authorization earlier given to Mst. Naheed Abid to pursue litigation and present Court Cases. Consequently, the issue of maintainability as raised by the Petitioners' Counsel, in view of the above discussion, is not tenable.

4. The Petitioners of the above Civil Petitions then preferred Civil Review Petitions Nos.8-K to 10-K of 2009 (at page-677 of the Court File), in particular on the findings of the Hon'ble Supreme Court with regard to authorization of present Respondent. In Review Proceeding also the Hon'ble Supreme Court maintained its earlier Decisions by holding that the Ejectment Petition [Rent Cases] was competently filed.

5. With the above Judgment of the Hon'ble Supreme Court, the earlier Decisions of this Court in the Constitution Petitions Nos.267 to 269 of 2007 are also filed, which were maintained by the above Judgment of the Apex Court. Perusal of these Decisions show that the same Respondent filed Cases against its other Tenants in occupation of different Demised Premises on the Ground Floor and the existing rate of rent was increased to Rs.9/-per square ft., which was maintained by this Court and ultimately by the Hon'ble Supreme Court (as already stated in the preceding Paragraphs).

6. Both the impugned Decisions have been considered. The learned Rent Controller has decided the matter in favour of Respondent, inter alia, on the ground that the Petitioner(s) failed to lead the evidence and did not cross-examine the Respondent and hence her testimony was not challenged and consequently was accepted as conclusive piece of evidence, resulting in enhancement of rentals per month. Whereas, the Appellate Court, being the Court of final facts, has appraised the evidence through its exhaustive discussion.

7. The Appellate Court has reproduced the testimony of Respondent's Representative (Ms. Naheed Abid), in particular those assertions justifying the enhancement of rent. Most important is Paragraph-20 of her Affidavitin- Evidence, in which Respondent Witness has given details of the other Tenants in the Subject Building, who have increased the monthly rents on the request of Respondent, after considering the factors and work done in the Subject Building, justifying the rent enhancement, as stated in her Rent Application (supra). It would be advantageous to reproduce Paragraph-13 of the impugned Judgment of the learned Appellate Court_

"13. From perusal of such evidence given by the witness on Oath. It couches to the common sense that the value of the property has been increased at a high rate since 1985 and so as the taxes other charges and repair charges have also been increased tremendously. Besides this, the applicant's witness also stated in her affidavit-in-evidence on Oath that the rate of rent is higher than the rate of rent being paid by the appellant/opponent and in this regard she has specifically stated with facts on Oath at para-20 in her affidavit in evidence, which is re-produced as under:-

"That there are many tenants who have been inspired with the development work of the said building carried out by applicant and have honored the request of the applicant they are not only paying their monthly rents at the rate, which was fixed for their respective floors vide order dated 04.12.1999 of the Hon'ble Court of IXth Senior Civil Judge and Rent Controller, Karachi South, but they had also paid the balance of rent regarding the difference accordingly, after fixation of rent w.e.f. November, 1997 they are paying 10% increase in their rents per annum w.e.f. November, 2000 and November, 2001, it has to be noted that in the said order dated 04.12.1999, it is clearly mentioned that the rate of rent is excluding the maintenance charges but the applicant has bifurcated this rent and issuing two receipts, 50% of which is as the Rent of the rented premises and the remaining 50% as the maintenance expenses, some of those tenants who are paying their monthly rents/ maintenance as under:-

A) Mr. Muhammad Intekhab Alam @ 15.87 per sq. feet, for shop No.3 on ground floor.

B) Mr. Muhammad Azeem son of Alim Gul @ Rs:15.75 per sq. feet for cabin No.5 on ground floor.

C) Mr. Khursheed Hafiz @ Rs:15.87 per sq. feet for shop No.14-15 on ground floor, D) Mr. Tahira wife of Zulfiqar Multanwala @ 8.8 per sq. feet for 1/54 on first floor.

E) Mr. Muhammad Farooq @ Rs:9.68 per sq. feet for 2/25 on second floor.

F) Mr. Muhammad Yaqoob son of Haji Hussain @ Rs:8.8 per sq. feet for 2/54 on second floor.

G) Mr. Muhammad Idrees & Co., @ Rs:7.26 per sq. feet 3/48 on third floor.

H) Mr. Narayan Rana and Mr. Shahid Aziz Memon @ Rs:6.6 per sq. feet for 4/18 on fourth floor.

I) M/s. Commodities Trading Company @ Rs:6.6 per sq feet for 4/30 on fourth floor.

J) M/s. Simba Enterprises @ Rs:7.26 per sq. feet for 4/30 on fourth floor.

K) Mr. Zakir Hussain and others @ Rs:7.26 per sq. feet for 5/52 on fifth floor.

L) Mr. Shaikh Tariq Rafiq @ Rs:8.8 per sq. feet for 6/21 on six floor.

M) M/s. Adamjee Insurance Co. Limited @ Rs:8.78 per sq feet for 6/29, 30, 37, 38 and 39 on sixth floor."

1. In those Cases where the evidence is led, the Record is considered. Findings of both the learned Rent Controller and the Appellate Court are correct, based on the appraisal of the evidence of the Parties. The Petitioners [being the Opponents] in their evidence could not prove their stance, in particular, pertaining to their occupation of respective Units / Tenements on the basis of 'Pugri'[goodwill], non-availability of the amenities and payment of enhanced rentals by the other Tenants in the Subject Building.

2. The contention of the Petitioners' Counsel about non affording the ample opportunity is untenable and contrary to record, inter alia, as undisputedly, in earlier round of litigation when the matters were decided ex-parte, against the Petitioners, then the same were remanded, and opportunity was given to the Petitioners to contest the matter, but after filing of the Written Statement, they in fact disappeared. Secondly, on the same facts and grounds, already the three Tenants of the Ground Floor remained unsuccessful upto the Honorable Supreme Court [as highlighted above]; which means that criteria adopted by the Courts below for determination of Fair Rent in respect of the Subject Building has already been approved by the Apex Court.

3. The Respondent [Landlady] has led the evidence regarding the crucial determining factors for the enhancement of Rent of different Rented Premises in the Subject Building, which assertion of the Respondent gone unchallenged, hence, admitted by the Petitioners [in those Cases where no evidence was led by the Petitioners, despite ample opportunity]; and, in the Rent Cases where the evidence was led by both the Parties, the conclusion whereof is already discussed in the foregoing Paragraphs, that is, it is against the Petitioners.

4. In this regard, a recent reported Decision of the Honorable Supreme Court handed down in the case of Akhtar Kamran (deceased) through legal heirs v. Parvez Ahmed and others reported in 2023 SCMR-1147, is relevant. In a Petition for fixation of fair rent filed by the respondent (of the reported case), monthly rent was increased from Rs.11,401/- (rupees eleven thousand four hundred only) per month to Rs.97,974.47 (rupees ninety seven thousand nine hundred seventy four and forty seven paisa only) per month. While maintaining the Decision of the Courts below, it was observed by the Honourable Supreme Court, that rise in cost of construction, repair charges, labour, taxes, etc. are the factors need not to be proved through documentary evidence and the same also cannot be ignored while determining the fair rent.

5. The Appellate Court has also taken into account the earlier Decisions concerning the other Tenants in the Subject Building, which was throughout decided in favour of the present Respondent and has been mentioned in the foregoing Paragraphs.

2024 Y L R 1922

[Sindh (Sukkur Bench)]

Before Yousuf Ali Sayeed, J

Abdul Qadir---Applicant

Versus

the State---Respondent

Criminal Bail Application No. S-412 of 2023, decided on 23rd October, 2023.

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

----S. 497---Penal Code (XLV of 1860), Ss.302, 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Bail, refusal of---Accused applicant was charged for committing murder of the brother of complainant and causing injuries to many others---As per record, it was apparent that the Court of first instance had assigned cogent reasons for observing that there was sufficient material on record to suggest an active role of the applicant in the commission of the alleged offence, and accordingly refused bail---Examination of the matter did not reflect any error or infirmity in such assessment and applicant remained at a loss to highlight any lapse or otherwise point to any material to support a contrary view from that taken by the fora below---Bail application was dismissed, in circumstances.

Sidra Abbas v. The State and another 2020 SCMR 2089 rel.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Observations made in bail orders are tentative, as such they have no bearing or influence on the outcome of the trial.

Syed Murad Ali Shah for Applicant.

Khalil Ahmed Memon, DPG for State.

Nayab Akhtar Memon for Complainant.

Order

Yousuf Ali Sayeed, J.---Having remained unsuccessful before the learned 1st Additional Sessions Judge-(MCTC) Khairpur, the Applicant has approached this Court seeking that he be enlarged on bail in respect of Crime No.122/2020 registered on 16.06.2020 at Police Station B-Section, Khairpur on the complaint of one Zulfiqar Ali, in relation to alleged offences under Sections 302, 324, 148 and 149, P.P.C. said to arise out of an armed attack perpetrated by the Applicant in concert with others earlier that day, causing injuries to several persons and the death of the complainant's brother.

1. Learned counsel for the Applicant has been heard; as has the learned DPG, assisted by counsel for the complainant.

2. A perusal of the Order made by the learned Additional Sessions Judge on 12.01.2021 reflects that the earlier post-arrest bail application was dismissed as it was observed that:

"According to FIR, the applicant/accused Abdul Qadir is nominated in FIR with specific role that he along with co-accused fired from his K.K upon deceased Dilber (brother of complainant) on his right check through and through and he died on spot, while Shahbaz Dino (uncle of complainant) is also shown to be injured during commission of offence, thus he has played active role of causing fire arm injuries to deceased on his vital part of body which also supported by the medical certificate. From perusal of police papers, the P.Ws in their respective statements under section 161, Cr.P.C have fully supported the version of complainant and implicated applicant/accused. It is also admitted position that offence with which applicant/accused is charged falls within the ambit of prohibitory clause of Section 497, Cr.P.C. Moreover, during investigation the crime weapons viz. K.K has also been recovered from possession of applicant/accused Abdul Qadir. According to post mortem report, the death of deceased occurred due to fire arm injuries, thus the medical evidence is in line with ocular account and supports the version of complainant. The motive of committing murder of deceased has been shown to have caused due to matrimonial affairs, as such accused persons committed qatl-i-Amd of deceased. Thus from tentative assessment as well as at this stage there is sufficient material available on record for connecting the applicant/accused Abdul Qadir son of Sardar Khan Jagirani in commission of alleged offence."

1. As such, it is apparent that the court of first instance has assigned cogent reasons for observing that there was sufficient material on record to suggest an active role of the Applicant in the commission of the alleged offence, and refusing the concession of bail.

2024 Y L R 1939

[Sindh [Sukkur Bench)]

Before Muhammad Iqbal Kalhoro, J

Akbar Shah and 4 others---Appellants.

Versus

The State---Respondent

Criminal Appeal No. S-112 of 2018, decided on 15th September, 2023.

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

----Ss. 302(b), 324, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act which endanger the life and property of others, abettor present when offence is committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account proved---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died whereas his mother sustained firearm injuries and the two companions of the accused party were hit by the firing of accused party---Property dispute was stated to be the motive of the occurrence---Ocular account of the incident had been furnished by complainant, injured and another witness being eye-witnesses of the occurrence---Said witnesses in their evidence had identified the accused persons with their respective weapons and for causing firearm injuries to the deceased and injured---Injured had herself stated that accused had caused her firearm injuries---Evidence of eye-witnesses, insofar as identity of the accused persons armed with firearm weapons was concerned, did not suffere from any discrepancy worth mentioning---Eye-witnesses though were subjected to a lengthy cross-examination but it did not reveal any mis-declaration of facts or variation on the salient features of the case---Eye-witnesses remained consistent in describing the manner of incident and the place where it had taken place---Appeal against conviction was dismissed accordingly.

Muhammad Ashfaq v. The State 1995 SCMR 1321; Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Imran v. The State 2020 SCMR 857; Waris and another v. The State and others 2020 SCMR 2044; Mst. Fareeda and another v. The State 2021 YLR 1828; Gulab and another v. The State 1986 PCr.LJ 1297; Muhammad Mushtaq v. The State PLD 2001 SC 107; Abdul Rauf v. The State and another 2003 SCMR 522; Arif v. The State and 2 others PLD 2006 Pesh. 5; Mazhar Hussain v. The State 2007 YLR 57; Muhammad Raziq Khan and another v. The State and another 2009 MLD 1113; Ansar Mehmood v. Abdul Khaliq and another 2011 SCMR 713; Taj v. The State 2012 SCMR 43; Nawab Ali v. The State 2014 PCr.LJ 885; Mst. Naseeban Khatoon and another v. The State 2014 YLR 899; Muhammad Ismail v. The State 2017 YLR 39; Muhammad Anwar v. The State 2017 SCMR 630; Abid Ali v. The State 2017 SCMR 662; Muhammad Ahsan v. The State and others 2017 PCr.LJ 1331; Muhammad Riaz and another v. The State and others 2017 SCMR 1871; Rehmat Khan and another v. The State and others 2017 SCMR 2034; Nasir Ahmed v. The State 2023 SCMR 478; Amanullah and another v. The State and others 2023 SCMR 723 and Ali Taj and another v. The State 2023 SCMR 900 ref.

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

----Ss. 302(b), 324, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act which endanger the life and property of others, abettor present when offence is committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Controversy in respect of time of occurrence---Time of incident admitted by accused---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died whereas his mother sustained firearm injuries and the two companions of the accused party were hit by the firing of accused party---Controversy raised in defence regarding time of incident to be either 01.30 pm or 11:00 a.m. had indeed been dispelled by accused himself in his S. 342, Cr.P.C statement, when he had expressed that it was about 11:00 a.m. when he saw dozens of people duly armed with deadly weapons; that complainant and his brothers entered the disputed plot and occupyed the same; and accused conveyed such information to other accused persons, who arrived at the place of incident---Such admission in regard to correct time was sufficient to cast out any misconception about it---Further, the complainant on the very day made a further statement, after realizing wrong time stated in FIR and quoted the correct time of the incident---Subsequently, on application of complainant, the correct time was noted down in the trial, which was never challenged by the accused persons in any proceedings---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act which endanger the life and property of others, abettor present when offence is committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Statement of injured witness, reliance upon---Ocular account supported by medical evidence---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died whereas his mother sustained firearm injuried ad the two companions of the accused party were hit by the firing of accused party---Role assigned to accused "IS" of causing injury to injured lady was not only described by the injured herself, but by the complainant and the eye-witness---Therefore, the version of defence, that evidence against "IS", given by injured, an old lady, was not reliable, was not sustainable---Not only the injured herself but the complainant and the eye-witness had specifically saddled said accused with injuring the injured witness---Such oral account given by the witnesses was further supported by the medical evidence and there appeared no discrepancy in that regard---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act which endanger the life and property of others, abettor present when offence is committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Defence plea not established by producing witnesses---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died whereas his mother sustained firearm injuries and the two companions of the accused party were hit by the firing of accused party---Defence plea was that the complainant party had launched attack upon accused persons when they were present in the house, and from their own firing, deceased and others had received injuries---Although special plea had been taken by the accused persons that the complainant himself murdered his brother, injured his mother and two men from the accused, but nothing had been produced on record in support of such plea---Not even a single witness with such assertion or any detail about their effort to establish the same at the time of investigation or in the trial had been brought by the accused side on record---Accused persons utterly failed to lead any defence evidence in that regard and examined themselves on oath in support of such plea---Besides, in the course of investigation in which they were found guilty, the accused persons did not plead contra version, which they had taken in the trial---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-H(2), 114, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rash and negligent act which endanger the life and property of others, abettor present when offence is committed, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Contradictions in the nature of weapon recovered from the accused---Inconsequential---Accused were charged that they made firing upon the complainant party, due to which brother of the complainant died whereas his mother sustained firearm injuries and the two companions of the accused party were hit by the firing of accused party---In the FIR, one accused whom was shown to be armed with a pistol, from him a repeater was shown to have been recovered, and one accusedwas shown to be armed with a repeater, from whom a pistol was shown to have been recovered---Suffice it to say that the complainant party did not claim to be expert in firearms to identify the nature and bore of every weapon and give its precise description in evidence---Witnesses were common folk and the mingling of pistol with repeater and vice versa by them was insignificant and could not be given much currency to doubt the entire incident---In the heat of the moment and being attacked by the accused party consisting of many persons, it was not possible for them, or any human-being for that matter, to exactly identify the nature and bore of weapons each accused was armed with and name it accurately in the FIR---Therefore, such variation, even if it was presumed to be correct, was of no help to the accused persons, and could not be counted in their favour---Fact that the weapons were recovered from the accused persons hadnot been rendered ineffective in any manner and fact that they were the weapons which were used by the accused had been established from the lab report demonstrating matching of empties found at place of incident, which was an additional corroborating evidence confirming presence and role of the accused persons in the incident---Appeal against conviction was dismissed accordingly.

(f) Criminal trial---

----Site plan---Scope---Site plan is not a substantial piece of evidence and cannot be given preference over the direct account furnished by the witnesses.

Amanullah G. Malik for Appellants.

Ubedullah Ghoto, for Complainant.

Zulfiqar Ali Jatoi, Additional Prosecutor General.

Dates of hearings: 7th, 21st August and 4th September, 2023.

Judgment

Muhammad iqbal Kalhoro, J.---Appellants, having been convicted and sentenced in the terms as mentioned below in Sessions Case No.24 of 2012 (Re: State v. Akbar Shah and others) arising out of FIR bearing Crime No.330 of 2011 under Sections 302, 324, 337-H(2), 114, 147, 148, 149, P.P.C. registered at Police Station Ubauro, by impugned judgment dated 08.09.2018 passed by learned Additional Sessions Judge, Ubauro, have called into question such conviction and sentence by means of Appeal in hand.

1. Appellants, namely, Akbar Shah, Asghar Shah, Rizwan Shah and Safdar Shah have been convicted and sentenced to imprisonment for life, whereas appellant Inayat Shah has been sentenced to R.I. for 14 years. All the appellants have also been sentenced under Section 148, P.P.C. to undergo R.I. for two years. Besides, each of them has been directed to pay Rs.100,000/- as compensation to the legal heirs of the deceased as provided under Section 544-A, Cr.P.C., or in default to suffer imprisonment for a period of six months, however, with benefit of Section 382-B, Cr.P.C.

2. As per brief facts in FIR, there was a dispute between complainant party and accused over ownership of a shop and a plot situated at Ubauro Town. On 04.09.2011 at about 1100 hours, when complainant was present in his house along with his brother Muhammad Akhtar Shah, an Advocate, his sons namely Shabbir Hussain Shah and Adnan Shah, and his mother Mst. Bani alias Fatima Bibi, appellants along with 10 other accused, out of whom 06 are named in FIR, whereas 04 are described as unknown, barged into his house. Then, at the instigation of appellant Safdar Hussain, who himself was armed with a pistol, they started firing at brother of complainant, namely, Akhtar Shah hitting several parts of his body critically. Allegedly, in the firing of appellant Inayat Shah, mother of complainant, namely, Mst. Bani also got injured. Then every one of the accused made aerial firing in jubilation to cause harassment, which inadvertently hit Safdar Shah and Kamran Shah, both members of their party, who were taken away by them. After the accused left, complainant came over his brother Akhtar Shah, found him alive and with multiple firearm injuries on his body. Mst. Bani was also found to have received firearm injuries over her ribs and backside. Complainant brought both the injured to Taluka Hospital, Ubauro after receiving letters from police for such purpose. Wherefrom, Mst. Bani was referred to Taluka Hospital, Ghotki for want of a Women Medical Officer and brother of the complainant was taken to a hospital in Rahim Yar Khan, Punjab for better treatment, but there he succumbed to his injuries and died. Hence, his body was brought back at Taluka Hospital, Ubauro, where his postmortem was conducted. Ultimately, he was buried in the village. And after which, the complainant appeared at Police Station and registered FIR, as above.

3. In investigation, appellant Akbar Shah, Asghar Shah, Rizwan Shah and Inayat Shah were arrested and from them the incriminating weapons i.e. pistols and repeaters were recovered. After conclusion of investigation, the Challan was submitted under Section 173, Cr.P.C. in the Court against the arrested accused, who at the time of framing of charge pleaded not guilty. However, before the trial could be commenced, co-accused Uffan Shah and Rooman Shah (since acquitted) joined the trial and hence an amended charge was framed, to which they pled not guilty. Finally, appellant Safdar Shah was also brought into the trial, and after usual formalities, once again the amended charge was framed against all the accused.

4. Prosecution in order to prove the case has examined complainant as PW-1; he has exhibited FIR registered by him, further statement recorded on the same day containing the correct time of the incident as 1100 hours and not 1330 hours recorded allegedly inadvertently in FIR. PW-2 Mst. Bani Bibi, an injured and eye-witness, Syed Sabir Hussain Shah, PW-3; he is also one of the eye-witnesses. PW-4 is Dr. Sarfraz A. Shah, who initially attended the deceased as injured in earlier part of the day viz. 04.09.2011, and conducted his postmortem on the same day in late hours viz. 06:30 p.m. He has produced Provisional Medico Legal Certificate of the deceased and his postmortem report. PW-5 is Dr. Razia Begum; she is the one who had attended to injured Mst. Bani Bibi and had issued such medical certificate, which she has produced in her evidence. PW-6 is ASI Anwar Ali, who had, after registration of FIR, arrested appellants Inayat Shah, Akbar Shah, Asghar Shah and Rizwan Shah; he has produced memo. of arrest of the appellants in his evidence.

5. At Ex.25 is the evidence of PW-7 Talib Hussain Shah, who is mashir of inspection of injuries of Akhtar Shah (the deceased) and injured Mst. Bani Bibi, inspection of dead body of deceased Akhtar Shah, inspection of place of incident and recovery of blood stained earth and empty shells, recovery of blood stained clothes of the deceased, arrest of accused Inayat Shah, Akbar Shah, Asghar Shah and Rizwan Shah, recovery of a .12 bore repeater from appellant Asghar Shah, a .30 bore pistol from appellant Inayat Shah and a .12 bore repeater from appellant Akbar Shah etc., memos of which he has produced in his evidence. PW-8 is Tapedar Abdul Karim, who has produced site plan of the place of incident, which he had sketched under the directions of Mukhtiarkar Ubauro and on the source of complainant. PW-9 Muhammad Tayab Hussain is also the mashir, before whom recovery of a .30 bore pistol from appellant Rizwan Shah was effected, and which he has confirmed in his evidence (Ex.28); he has produced such memo. of recovery in his evidence.

6. PW-10 SIP Sibghatullah is the SHO, Police Station Ubauro, who in his evidence has revealed receiving information on phone about the fight between complainant and accused, reaching the place of incident in response and then visiting hospital where the injured were taken to, inspecting their injuries and noting the same in the relevant memos, issuing letters for their medical treatment. He has further disclosed that he was subsequently informed about death of the deceased, which prompted him to visit once again Taluka Hospital Ubauro for inspecting the dead body and issuing a letter for his postmortem. He has further endorsed recording statement of complainant under Section 154, Cr.P.C. (FIR), visiting place of incident, preparing relevant memos, collecting blood stained earth, thirteen empties of .30 bore pistols and nine empties of .12 bore guns.

7. He has further disclosed that on 06.09.2011, he had arrested accused Inayat Shah, Akbar Shah, Asghar Shah and Rizwan Shah in presence of mashirs, and during interrogation, on 07.09.2011, appellant Rizwan Shah had led to recovery of a repeater from a place in his custody. On 09.09.2011, on the source of Inayat Shah, a TT pistol was recovered from the place of his custody. On 11.09.2011, a TT pistol from Akbar Shah was recovered on his information. And on 12.09.2011, recovery of a repeater of .12 bore was effected on the source of appellant Asghar Shah from the place in his custody. He has produced all relevant documents including a lab report regarding samples of blood stained earth, matching report of ballistic expert about weapons recovered from the appellants and the empties found at the place of incident. PW-11 Munir Ahmed is Police Constable, who after postmortem, had handed over dead body of the deceased to complainant under a valid receipt, which he has produced in his evidence.

8. After closure of prosecution evidence, the appellants were examined under Section 342, Cr.P.C. Appellant Inayat Shah has produced documents including a sale agreement and a sale deed of the disputed property. The appellants have denied their guilt in their statements. But they did not examine themselves on oath under Section 340(2), Cr.P.C. and have examined one witness in defence, namely, Khalil-ur-Rehman, who has endorsed only sale agreement between him and one Syed Rehmat Shah, and stated that appellant Inayat Shah was the son of Rehmat Shah and was in possession of the disputed property.

9. At the end of trial, learned trial Court has decided the case by convicting and sentencing the appellants in the terms as state above, which they have assailed by means of instant appeal.

10. Learned Defence Counsel, in his arguments, has stated that appellants have been implicated in this case falsely on account of enmity admitted by the complainant party in FIR; that there are multiple contradictions in the oral account and medical evidence; that the narration of the incident set up by the complainant does not inspire confidence; that in the FIR, the time of incident is recorded as 1330 hours, whereas the examination of injured and relevant memos. show the time of their preparation before the time of incident i.e. around 1100 hours, and which negates the entire incident; that the incident happened in the heart of city where so many shops etc. are situated, but no independent person was introduced in the prosecution case to vouch for the occurrence; that there is variation in evidence of mashirs of recovery and Investigating Officer insofar as the date of recovery is concerned, and the nature of weapon recovered from each appellant compared to what they are stated to be armed with at the time of incident in FIR; that application to correct the time of incident from 1330 hours to 1100 hours was filed by the complainant after two years of the commencement of trial; that there is delay of one day in registration of FIR, which has not been properly explained; that PW Mst. Bani has admitted in her evidence that she is too old and her eyesight is weak, hence, her evidence identifying appellant Inayat Shah hitting her with his firearm is weak type of evidence; that initially, on the person of deceased, 06 injuries were found by the Medico Legal Officer and mentioned in Provisional Medical Certificate, but subsequently, 09 injuries are shown noted by him in the postmortem report, which creates a doubt over the manner in which the prosecution case has been set up; that the disputed house is an empty house and nobody was living in the same, therefore, claim of prosecution that complainant was residing in the same house is not correct and non-sustainable; that in the site plan, the injured's position is noted outside of the house in a street, whereas the complainant party has claimed the incident to have happened inside the house, which creates a doubt over the prosecution case. He has relied upon the cases of Muhammad Ashfaq v. The State (1995 SCMR 1321), Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344), Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Imran v. The State (2020 SCMR 857), Waris and another v. The State and others (2020 SCMR 2044) and Mst. Fareeda and another v. The State (2021 YLR 1828).

11. On the other hand, complainant's Counsel and learned Additional Prosecutor General have supported the impugned judgment. Learned Counsel for complainant has relied upon the cases of Gulab and another v. The State (1986 PCr.LJ 1297), Muhammad Mushtaq v. The State (PLD 2001 SC 107), Abdul Rauf v. The State and another (2003 SCMR 522), Arif v. The State and 2 others (PLD 2006 Peshawar 5), Mazhar Hussain v. The State (2007 YLR 57), Muhammad Raziq Khan and another v. The State and another (2009 MLD 1113), Ansar Mehmood v. Abdul Khaliq and another (2011 SCMR 713), Taj v. The State (2012 SCMR 43), Nawab Ali v. The State (2014 PCr.LJ 885), Mst. Naseeban Khatoon and another v. The State (2014 YLR 899), Muhammad Ismail v. The State (2017 YLR 39), Muhammad Anwar v. The State (2017 SCMR 630), Abid Ali v. The State (2017 SCMR 662), Muhammad Ahsan v. The State and others (2017 PCr.LJ 1331), Muhammad Riaz and another v. The State and others (2017 SCMR 1871), Rehmat Khan and another v. The State and others (2017 SCMR 2034), Nasir Ahmed v. The State (2023 SCMR 478); Amanullah and another v. The State and others (2023 SCMR 723) and Ali Taj and another v. The State (2023 SCMR 900).

12. I have considered submissions of the parties and perused material available on record and taken guidance from the case law cited at bar. In order to describe the details of the incident, the prosecution has examined Muhammad Athar Hussain, who is complainant; PW Mst. Bani, an injured and eye-witness, and Syed Sabir Hussain Shah, the other eye-witness. They in their evidence have identified the appellants with their respective weapons and causing firearm injuries to the deceased and Mst. Bani, who herself in her evidence, has stated that appellant Inayat Shah had caused her firearm injuries. Their evidence, insofar as identity of the appellants armed with firearm weapons is concerned, has not suffered from any discrepancy worth mentioning and strong enough to undermine authenticity thereof to give its benefit to the appellants. The eye-witnesses though subjected to a lengthy cross-examination have not revealed any mis-declaration of facts or variation on the salient features of the case. They have remained consistent in describing the manner of incident and the place where had it taken place.

13. The controversy raised in defence regarding time of incident to be either 1330 hours or 11:00 a.m. has indeed been dispelled by appellant Inayat Ali Shah himself in his 342, Cr.P.C. statement (Ex.38), when he, in a reply of a question, has expressed that it was about 11:00 a.m. when he saw dozens of people duly armed with deadly weapons: complainant Athar Shah, his brothers et al entering the disputed plot and occupying the same. And he in the wake of which conveying such information to the appellants, their arrival at the place of incident, and the occurrence. This admission in regard to correct time is sufficient to cast out any misconception about it. Further, the complainant on the very day made a further statement, after realizing wrong time stated in FIR, quoting correct time of the incident. Subsequently, on his application, the correct time was noted down in the trial, which was never challenged by the appellants in any proceedings.

14. The role assigned to appellant Inayat Shah causing injury to PW Mst. Bani is not only described by the injured herself, but by the complainant and the eye-witness. Therefore, the argument, in defence, that evidence against Inayat Shah, given by injured, an old lady, is not reliable, is not sustainable either. Not only the injured herself but the complainant and the eye-witness have specifically saddled appellant Inayat Shah with injuring Mst. Bani. Such oral account given by the witnesses is further supported by the medical evidence and there appears no discrepancy in this regard. The controversy regarding wrong time noted in the medical record about arrival of Mst. Bani in the hospital for examination as 04.09.2011 at 06:45 a.m. which is before the incident, is not of much help to the appellants as the same appears to be a result of some human error committed at the time of making relevant notes, not least when appellants, noted as above, are not denying the occurrence and its time. Besides, all the papers including memos show the time of incident as 11:00 a.m., and therefore mere an improper and inadvertent mention of time in provisional medical certificate will not derail the whole prosecution case otherwise built on satisfactory evidence.

15. The next plea in defence is that it was the complainant party which had launched attack upon appellants when they were present in the house, and from their own firing, Akhtar Hussain Shah (deceased) and others had received injuries. It may be mentioned that the appellants have taken the same plea in their 342, Cr.P.C. statements that from the fires made by the complainant party, deceased Akhtar Shah got injured and so also Safdar Shah and Kamran Shah, who were then taken to Civil Hospital for treatment. From such projection, declaring themselves although innocent, the dispute between the parties over the plot and shop leading to alleged occurrence appears to be admitted by the appellants. It is settled proposition of law that burden to prove an offence is always on the prosecution. The prosecution has to lead confidence inspiring evidence to show that the incident has happened in the manner and the mode as described in the relevant papers. Nonetheless, when a special plea, contrary to narration qua occurrence and blaming the complainant for it, is propounded by the accused to plead his innocence, the burden is shifted to him and he comes under the liability to prove the same. In this case, although the special plea has been taken by the appellants that the complainant himself murdered his brother Akhtar Hussain Shah, injured his mother and two men from their party, but nothing has been produced on record in support of such plea. Not even a witness with such assertion or any detail about their effort to establish the same through him at the time of investigation or in the trial has been brought by them on record. They even utterly failed to lead any defence evidence in this regard and examine themselves on oath in support of such plea. Besides, in the course of investigation in which they were found guilty, the appellants did not plead contra version, which they have taken in the trial, to stir widening of scope of investigation to include such facts leading to formation of some opinion about it by the Investigating Officer.

16. Next, the contention in defence that there is a contradiction in the nature of weapons recovered from the appellants and the one shown against them in FIR. In the FIR, if some appellant is shown to be armed with a pistol, from him a repeater is shown to have been recovered, and if some appellant is shown to be armed with a repeater, from him a pistol is shown to have been recovered. Suffice it to say that the complainant party is not claimed by accused to be expert in firearms to identify the nature and bore of every weapon and give its precise description in evidence. They are common folk and this mingling of pistol with repeater and vice versa by them is but insignificant and cannot be given much currency to doubt the entire incident. Then, in the heat of moment and being attacked by the accused party consisting of many persons, it was not understandably possible for them, or any human-being for this matter to, exactly identify the nature and bore of weapons each accused was armed with and name it accurately in the FIR. Therefore, such variation, even if it is presumed to be correct, is of no help to the appellants, and cannot be counted in their favour.

17. The fact that the weapons were recovered from the appellants has not been rendered ineffective in any manner. And that these are the weapons which were used by the accused has been established from the lab report demonstrating matching of empties found at place of incident with them, which is an additional corroborating evidence confirming presence and role of the appellants in the incident.

2024 Y L R 1954

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro, J

Shahid Ali Memon and another---Appellants

Versus

The State and another---Respondents

Criminal Jail Appeals Nos. S-11 and S-12 of 2020, decided on 11th September, 2023.

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

----Ss. 302(b), 364, 201, 34, 148 & 149----Qatl-i-amd, abduction, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for committing murder of the son of complainant after abducting him---Record showed that complainant and two eye-witnesses had identified the accused persons and other accused clearly atthe time of first two incidents ; abduction of the deceased occurring at 02:00 p.m. on 30.07.2014 and throwing of the deceased in the rice canal later in the day at 08:00 p.m.---Although these two incidents occurred on the same day, the perpetrators were identified, but surprisingly, FIR was not registered, no action was taken by the police timely to save the abductee and round the accused (duly identified) up to thwart the commission of the offence---Daily diary did not disclose name of any of the accused---Nothing had been brought on record to show that the incident had happened in the manner alleged; that it was witnessed as alleged and was reported to the police accordingly---Insofar as first incident was concerned, and purportedly was committed by the accused known to the complainant, and their respective roles were clearly seen, but at the time of conveying information to the police about it, the complainant did not disclose name of any of the accused or their respective role, till the dead body was discovered on 02.08.2014 by him---About dead body complainant, did not first inform the police, so that the police could document and preserve the same for a future reference, and brought it on his own to the hospital---Silence of complainant for 03 days and not reporting the matter and revealing names of the accused persons to the police was baffling and did not inspire confidence about the story, he had narrated---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 364, 201, 34, 148 & 149----Qatl-i-amd, abduction, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Unnatural conduct of eye-witness---Chance witness---Accused were charged for committing murder of the son of complainant after abducting him---Eye- witness, who was said to have witnessed accused persons and acquitted accused coming out of the car and throwing abductee in rice canal, was originally resident of another district and was related to the complainant---Said witness did not explain the exact circumstances behind his presence at the given time on the spot---Conduct of said eye-witness was not normal in that although he saw the accused persons throwing abductee in the rice canal, but did not try to save him with the assistance of a person, who allegedly was with him or raise even alarm to attract the people available to save the deceased or at least to take the dead body out of the water---City Point Bridge was a very busy place and remained open round the clock with cart pullers selling fruits, vegetables etc. and vendors available with rush of people---Being a busy place it was surprising that the incident was only noticed by persons who were somehow related to the complainant---Such facts and circumstances showed that evidence of said witness, who did not even convey information to the police but to the complainant, and the complainant only partially intimated the police, and the police remained inactive, was not reliable---Said witness was a chance witness and his presence at the spot was not without a doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 364, 201, 34, 148 & 149----Qatl-i-amd, abduction, causing disappearance of evidence of offence, or giving false information to screen offender, common intention, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence and other articles---Doubtful---Accused were charged for committing murder of the son of complainant after abducting him---Pistols were recovered from the accused persons---Recovery of pistols from the accused persons did not show their involvement with the offences when the same were admittedly not used/fired by them---Recovery of a mobile phone and university card of the deceased allegedly from one of the accused persons from a field of sugarcane which was not owned by him would not prove the charge against him of abduction and murdering the abductee/ deceased---More so, the recovery was made after 04 days of arrest of the accused in presence of witnesses, who were related to the complainant and were introduced to the prosecution case only after registration of FIR lodged on the 4th day of the incident, without any explanation---Said fact made such recovery itself unreliable, therefore, the case against the accused persons was not free from doubt---Appeal against conviction was allowed accordingly.

(d) Criminal trial---

----Benefit of doubt---Principle---Benefit of a single circumstance creating a reasonable doubt, is to be extended to the accused not as a matter of grace but as a matter of right.

Rukhsar Ahmed M. Junejo for Appellants.

Zulfiqar Ali Jatoi, Additional Prosecutor General for the State.

Khan Muhammad Sangi for Complainant.

Date of hearing: 11th September, 2023.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellants, having been convicted through impugned judgment dated 04.02.2020, passed by learned Additional Sessions Judge-I (MCTC), Ghotki in Sessions Case No.402 of 2014 (Re: State v. Ghulam Murtaza and others), emanating from Crime No.76 of 2014 under Sections 364, 302, 201, 148, 149, P.P.C., registered at Police Station Sarhad, District Ghotki, and sentenced under Section 364 read with Section 34, P.P.C. to suffer R.I. for ten years and to pay fine of Rs.100,000/- each, and in case of non-payment of fine, to undergo S.I. for three months more; under Section 302(b) read with Section 34, P.P.C. to suffer R.I. for life as Ta'zir and to pay compensation of Rs.500,000/- each to the legal heirs of deceased, as provided under Section 544, Cr.P.C., and in case of non-payment of compensation, to suffer S.I. for six months more, however, with benefit of Section 382-B, Cr.P.C., have filed this Appeal challenging the same.

1. As per brief facts, in presence of complainant and PWs Sheral and Ghulam Hyder, his son namely Saeed Ahmed was abducted by appellants and other co-accused on the show of weapons on 30.07.2014 at about 02:00 p.m., when they were standing in a graveyard near their village, for the purpose of murder, as they were annoyed with the abductee for stopping them from having relations with criminals. Complainant and PWs due to fear of weapons remained silent and did not intervene. He, however, on phone informed the police about the incident, which kept entry No.08 on the same day, which has been produced by PW-12, who is Inspector of Police Station Sarjani Town, in his deposition. The complainant, meanwhile, mounted a search for his son and on the same day at about 08:00 p.m. was informed by PWs Bashir Ahmed and Akbar Ali that while they were standing at City Point (Bridge) over Rice Canal, they saw appellants, Qutubuddin, Aamir and Nizamuddin alighting from the car, throwing his son in Rice Canal and making their escape good. On receiving such information, he again intimated the police, which only kept entry No.20 on the same day about such fact, but did not register the FIR or sprung into action to locate the body or arrest the accused who were ostensibly implicated for murdering the deceased, which does not appeal to the common sense. But in any case, the complainant and his relatives then made a search about the dead body of his son, and found it on 02.08.2014 at a place called as 'Ruk Pull', District Shikarpur. He brought the dead body of his son at Civil Hospital, Sukkur in a Datsun and informed the police official concerned, who visited the hospital, gave a letter for postmortem and completed all other formalities. Complainant thereafter appeared at Police Station and registered FIR against appellants and co-accused named above.

2. During investigation, appellants were arrested on 18.08.2014, and on 22.08.2014, in interrogation, they admitted the guilt and caused recovery of .30 bore pistols from the places of their knowledge. On appellant Shahid's source, not only a pistol, allegedly used by him at the time of abduction of the deceased, but his university card and a mobile phone, which, however, was not subjected to forensic examination, were recovered from a field of sugarcane, which admittedly is not owned by him. After usual investigation, the Challan was submitted and appellants were referred to the trial, where a formal charge against appellants and co-accused Nizamuddin, who is shown to be along with the appellants at the time of abduction and throwing the abductee to Rice Canal, was framed.

3. Prosecution then led evidence of all the relevant witnesses, 12 in number, who produced all the relevant papers including FIR, memos. of place of incident, arrest and recovery of incriminating articles from the appellants etc. The Medico Legal Officer has produced postmortem report of the deceased opining that the deceased died due to asphyxia by way of drowning. But he has confirmed that the body of the deceased did not bear any external mark of violence. After the prosecution led the entire evidence, the appellants' statements under Section 342, Cr.P.C. were recorded. They have denied the allegations and pled their innocence without leading any evidence in defence or examining themselves on oath.

4. The trial Court by means of the impugned judgment has convicted the appellants in the terms as above, whereas, acquitted co-accused Nizamuddin, who apparently is held equally responsible by the complainant and his witnesses in the alleged offences. Purportedly, on the only distinction of recovery of pistols from the appellants, which were not used by them as is apparent from above facts except that allegedly, at the time of abduction of the deceased, they were armed with them. Since the pistols recovered from the appellants were not used for firing, they were not sent for forensic examination, and no report is otherwise available that these are the same weapons the appellants were armed with at the time of incident. More so, it is reported that appellants have been acquitted from the case of such recovery, although, against such acquittal, appeals have been filed against the appellants as well as co-accused Nizamuddin.

5. Learned defence Counsel has pleaded innocence of appellants and submits that there is delay of 03 days in registration of FIR although as per its contents and evidence of complainant he had identified all the accused at the spot; that the entry, showing conveying of information by the complainant to the police of such incident, does not disclose name of any of the accused. The witness, who revealed that he had seen appellants throwing the abductee in Rice Canal, is a chance witness; he is originally resident of District Ghotki and he has not explained about his presence at the time of above incident. More so, his conduct, suspicious as it is, does not tally with the story in that he did not take any effort to save the deceased or raise alarm to attract the people to save the deceased from drowning or taking him out immediately; that appellants' case is on identical footing to that of acquitted accused Nizamuddin, but the learned trial Court has failed to appreciate this fact; that in the daily diary No.20, recording information of throwing of the deceased in the Rice Canal, only name of accused Shahid is disclosed although the witness is said to have identified all the accused.

6. On the other hand, learned Counsel for the complainant, supporting the impugned judgment, has contended that names of appellants are mentioned in the FIR with specific role. The deficiency in investigation would not ruin the case of complainant, who has fully implicated the appellants in the offence. Acquittal of co-accused will not work out in favour of appellants as the acquittal appeal has been filed.

7. Learned Additional Prosecutor General, however, submits that there are loopholes in the prosecution case in that the FIR without a proper explanation has been registered after 03 days and only after recovery of the dead body, and only thereafter names of accused were disclosed by the complainant.

8. I have considered arguments of parties and perused material available on record. Prosecution in order to establish its case has examined complainant as a first witness who has produced FIR, and PW-2 namely Ghulam Hyder who has supported him insofar as contents of FIR and other developments ensuing FIR, as revealed above, are concerned. PW-3 Akbar Ali, who is originally resident of a village in Taluka in District Ghotki is said to be present at the bridge of Rice Canal at about 07:45 p.m. along with PW Bashir Ahmed and saw appellants and co-accused alighting from a car and throwing Saeed Ahmed in it: Rice Canal. He has confirmed that he had conveyed such information to the complainant. PW-4's evidence, who is Medico Legal Officer, is confined to conducting postmortem of the deceased, which he has produced. PW-5 is the Tapedar, who under the instructions of Mukhtiarkar, had sketched the site plan which he has produced accordingly. PW-7 is the first Investigating Officer of the case, who had recorded 161, Cr.P.C. statements of the witnesses. PW-8 is Ali Abbas Bharo, he is the mashir and witnessed preparation of memos by the police at every nook and cranny of the prosecution case. He has confirmed these facts in his evidence and has produced the relevant documents. The remaining witnesses are the police officials, either related to investigation or completing certain other formalities such as postmortem, producing the relevant daily diaries and confirming the fact that complainant had conveyed the information of the incident on the same day to the police, etc.

9. A scanning of their evidence shows that complainant and two eye-witnesses had identified the appellants and other accused clearly at the time of first two incidents: abduction of the deceased occurring at 02:00 p.m. on 30.07.2014 and throwing of the deceased in the Rice Canal later in the day at 08:00 p.m. Although these two incidents occurred on the same day, the perpetrators were identified. But surprisingly, FIR was not registered, no action was taken by the police timely to save the abductee and round the accused (duly identified) up to thwart the commission of the offence. Except the daily diary (No.08 dated 30.07.2014) which does not, however, disclose name of any of the accused, nothing has been brought on record to show that the incident in the manner as alleged had happened, it was witnessed as alleged and was reported to the police accordingly. The reported offence was a cognizable offence: Section 364, P.P.C., punishable for life imprisonment insofar as first incident is concerned, and purportedly was committed by the accused known to the complaiannt, and their respective roles were clearly seen, but at the time of conveying information to the police about it, the complainant did not disclose name of any of the accused or their respective role, till the dead body was discovered on 02.08.2014 by him. About which, he, however, did not first inform the police, so that the police could document and preserve the same for a future reference, and brought it on his own to the hospital. His remaining silent for 03 days, and not reporting the matter and revealing names of the appellants to the police is baffling and does not inspire confidence about the story, he has narrated. It conveys a strong impression that until the dead body was discovered, the complainant and the police were in dark, and after that they sprung into action, and all formalities including FIR, daily diary and 161, Cr.P.C. statements were covered and made part of the case.

10. The third witness namely Akbar Ali, who is said to have witnessed appellants and acquitted accused coming off the car and throwing abductee in Rice Canal, is originally resident of District Ghotki and is related to the complainant. He did not explain the exact circumstances behind his presence at the given time on the spot. His conduct is not normal in that although he saw the appellants throwing abductee in the Rice Canal, but did not try to save him with the assistance of Bashir Ahmed, who allegedly was with him or to raise even alarm to attract the people available to save the deceased or at least to take out of the water his body. Further, it is pointed out in the arguments that the place i.e. City Point Bridge is a very busy place and remains open round the clock with cart pullers selling fruits, vegetables etc. and vendors available with a rush of people. That being a busy place, noticing the incident only by persons, who are somehow related to the complainant, beggars belief and does not inspire confidence.

2024 Y L R 2047

[Sindh]

Before Mohammad Karim Khan Agha J

Iftikhar alias Hera alias Charlie---Appellant

Versus

The State through Prosecutor General Sindh---Respondent

Criminal Appeal No. 455 of 2019, decided on 21st March, 2024.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Delay of five hours in lodging the FIR plausibly explained---Accused was charged for committing murder of the brother of complainant by stabbing---Record showed that the FIR was lodged after a delay of about 5 hours---Such slight delay had been fully explained by the complainant who reached the hospital where the deceased was taken and where the post mortem was performed with other legal formalities before the body was returned to him for burial and thereafter the FIR was immediately lodged---Slight delay in lodging the FIR had been adequately explained and as such was not fatal to the prosecution case---Accused was named in the FIR with the specific role of murdering the deceased by dagger after a quarrel---Thus there was no time for the complainant to cook up a false case against the accused---Even otherwise no specific/proven enmity had come on record between the accused and the complainant or any witness which would motivate him/them to lodge a false case against the accused---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however, sudden quarrel broke out between the accused and the deceased which led the accused after being provoked by the quarrel suddenly to give one stab wound with knife to the chest of the deceased without premeditation, thus offence under S.302(b), P.P.C was converted into offence under S.302(c), P.P.C---Life imprisonment was converted into sentence for 14 years---Appeal was dismissed with modification in sentence, in circumstance.

Nazir Ahmed and others v. The State and others PLD 2005 Karachi 18; Muhammad Nawaz and others v. The State and others 2016 SCMR 267; Qaddan and others v. The State 2017 SCMR 148; Dhani Bux v. The State 2011 PTD 1419; Sajjad Hussain v. State 2019 YLR 2617; Hakim Ali and 4 others v. The State and another 1971 SCMR 432; Muhammad Aif v. The State 2017 SCMR 486; Qasim Shahzad and another v. The State and others 2023 SCMR 117; Ijaz Ahmad v. The State 2009 SCMR 99 and Khadim Hussain v. The State PLD 2010 SC 669 ref.

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

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Ocular account proved---Accused was charged for committing murder of the brother of complainant by stabbing---Ocular account of the incident had been furnished by cousin of the deceased and his wife---Cousin of the deceased/witness deposed that he passed near a Masjid and saw from about 50 feet the accused pulling out the collar of the deceased so he rushed to reach them and resolved their problem---When the sole witness reached there he had seen the accused pulled out a churri/knife and attacked the deceased on the chest with the knife---Accused ran away and witness took the deceased in a taxi to hospital who died on the way---Eye-witness knew the accused before the incident and it was a day light incident and he saw the accused from close range when he stabbed the deceased, as such there was no case of mistaken identity---Said witness had given his S.161 Cr.P.C statement with promptitude which was not materially improved on during the course of his evidence---Eye-witness was not a chance witness as he was en-route to see his uncle when he came across the incident and tried to intervene---Sole eye-witness had no proven enmity or ill will with the accused which would lead him to give false evidence against the accused---Said witness gave his evidence in straightforward manner and was not damaged during cross-examination---Thus, evidence of said witness was found to be reliable, trust worthy and confidence inspiring especially in relation to the identification of the accused---Other witness was widow of deceased---According to her evidence on 19.04.2005 she was present in her house with her mother in law, father in law and cousin whilst her husband/deceased was sitting outside---Said witness heard noise of hues and cries and went outside where she saw the accused with a knife running towards his house---Said witness also saw her husband outside in an injured condition who was taken by his cousin and other mohalla people to hospital where he died---Said witness had seen that deceased had been stabbed through the heart---Mother in law and father in law of the said witness remained in the house as they could not walk---Said witness although related to the deceased who was her husband was not a chance witness as the incident happened just outside her house---When she heard the cries outside her house quite naturally she went to investigate as she knew her husband was outside---Moreover, it was a day light incident and she saw the accused running away from a few feet---Said witness knew the accused before and saw him running to his house with a knife whilst her husband was lying injured as such there was no case of mistaken identity regarding the accused---Said witness had no ill will or enmity with the accused and had no reason to implicate him in a false case---Said witness had given her S.161, Cr.P.C statement with promptitude which was not materially improved upon during her evidence---Said witness given her evidence in a natural manner and was not dented during cross-examination---It did not appeal to logic, commonsense or reason that a real wife and cousin would let the real murderer of their real husband/cousin get away scot free and falsely implicate an innocent person by way of substitution---Medical evidence, post mortem report and Medico-Legal Certificate fully supported the eye-witnesses/prosecution evidence that the deceased died from receiving a single stab injury to his chest, which was where the eye-witnesses in their evidence stated he was stabbed---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however, sudden quarrel broke out between the accused and the deceased which led the accused after being provoked by the quarrel to suddenly give one stab wound with knife to the chest of the deceased without premeditation, thus offence under S.302(b), P.P.C, was converted into offence under S.302(c), P.P.C---Life imprisonment was converted into sentence for 14 years---Appeal was dismissed with modification in sentence, in circumstances.

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; Muhammad Ismail v. The State 2017 SCMR 713; Qasim Shahzad and another v The State 2023 SCMR 117; Muhammad Waris v. The State 2008 SCMR 784 and Whammed Ashraf v. State 2021 SCMR 758 rel.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Related witness, evidence of---Reliance---Accused was charged for committing murder of the brother of complainant by stabbing---Admittedly, the eye-witness was related to the deceased who was his cousin---However, the evidence of related witnesses could not be discarded unless there was some ill will or enmity between the eye-witnesses and the accused which had not been proven in the case by any reliable evidence---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however, sudden quarrel broke out between the accused and the deceased which led the accused after being provoked by the quarrel suddenly to give one stab wound with knife to the chest of the deceased without premeditation, thus offence under S.302(b), P.P.C was converted into offence under S.302(c), P.P.C---Life imprisonment was converted into sentence for 14 years---Appeal was dismissed with modification in sentence, incircumstances.

Ijaz Ahmed v. The State 2009 SCMR 99, Nasir Iqbal alias Nasra and another v. The State 2016 SCMR 2152 and Ashfaq Ahmed v. The State 2007 SCMR 641 rel.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Crime weapon recovered on the pointation of accused---Reliance---Accused was charged for committing murder of the brother of complainant by stabbing---Accused was arrested one day after the incident and six days after his arrest he confessed to the crime to the police and then led the police on his pointation to where he had hidden the murder weapon (knife/churri/dagger) in his own house---Admittedly, the confession before the police was inadmissible in evidence however his pointation of the murder weapon hidden in his house in a place which only he could have known about was evidence against the accused---As per chemical report the knife/churri/dagger which was found on the pointation of the accused was also found to be stained with human blood---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however, sudden quarrel broke out between the accused and the deceased which led the accused after being provoked by the quarrel suddenly to give one stab wound with knife to the chest of the deceased without premeditation, thus offence under S.302(b), P.P.C was converted into offence under S.302(c), P.P.C---Life imprisonment was converted into sentence for 14 years---Appeal was dismissed with modification in sentence, in circumstance.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Police witnesses, evidence of---Accused was charged for committing murder of the brother of complainant by stabbing---Record showed that there was no ill will or enmity between the police and the accused and as such they had no reason to falsely implicate the accused in the case for instance by foisting the churri/knife/dagger on him---Evidence of police witnesses was as good as any other witness---Evidence of the Investigating Officer and other police witnesses were not dented during cross- examination---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however, sudden quarrel broke out between the accused and the deceased which led the accused after being provoked by the quarrel suddenly to give one stab wound with knife to the chest of the deceased without premeditation, thus offence under S.302(b), P.P.C, was converted into offence under S.302(c), P.P.C---Life imprisonment was converted into sentence for 14 years---Appeal was dismissed with modification in sentence, in circumstance.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, reduction in---Minor contradictions in evidence---Inconsequential---Accused was charged for committing murder of the brother of complainant by stabbing---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence, the 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---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the accused quarreling with the deceased, outside the house of the deceased, to the accused stabbing the deceased and then running away and later being arrested, to the accused pointing out the murder weapon in a hidden place---Circumstances established that prosecution had proved its case against the accused beyond any shadow of doubt, however, sudden quarrel broke out between the accused and the deceased which led the accused after being provoked by the quarrel suddenly to give one stab wound with knife to the chest of the deceased without premeditation, thus offence under S.302(b), P.P.C was converted into offence under S.302(c), P.P.C---Life imprisonment was converted into sentence for 14 years---Appeal was dismissed with modification in sentence, in circumstance.

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) & 302(c)---Qatl-i-amd---Appreciation of evidence---Sentence, quantum of---Accused was charged for committing murder of the brother of complainant by stabbing---Record transpired that there was no prior ill will or enmity between the accused and the deceased and the eye-witnesses as admitted in the FIR---Sudden quarrel broke out between the accused and the deceased which led the accused after being provoked by the quarrel suddenly to give one stab wound to the chest of the deceased without premeditation with a knife---Hence, present case fell within the purview of S.302(c), P.P.C---Prosecution had proved its case in respect of the offence against the accused beyond a reasonable doubt---Life imprisonment was converted into sentence for 14 years---Appeal was dismissed with modification in sentence, in circumstance.

Azmat Ullah v. The State 2014 SCMR 1178; Raza and another v. The State 2020 SCMR 1185 and Alamgir v. Gul Zaman and others 2019 SCMR 1415 rel.

Sathi M. Ishaque for Appellant.

Mrs. Shehla Anjum for the Complainant.

Muhammad Iqbal Awan, Addl. Prosecutor General for the State.

Date of hearing: 14th March, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Iftikhar alias Hera alias Charlie son of Muhammad Ashraf has preferred this appeal against the impugned judgment dated 18.07.2019 passed by the Model Criminal Trial Court 1st Additional Sessions Judge, Karachi West in Sessions Case No.275 of 2005 under FIR No.102/2005 under section 302, P.P.C. registered at P.S. Pak Colony, Karachi; yhereby the appellant was convicted and sentenced to undergo imprisonment for life as Ta'zir with regard to the facts and circumstances of the case being mitigating for lesser punishment, where the accused is first offender and had committed this offence at early young age of 17/18 years. He has already passed considerable period in jail and faced the agony of protracted trial. He is further directed to pay compensation of Rs.10,00,000/- to the legal heirs of deceased Muhammad Younus as provided under Section 544-A, Cr.P.C. In case of default of such compensation, the appellant shall suffer six months more S.I. However, benefit of section 382-B, Cr.P.C. is extended.

1. The brief facts of the prosecution case as per FIR are that on 19.04.2005 at 1400 hours the complainant Muhammad Ameen in his 154, Cr.P.C. statement recorded at mortuary of Civil Hospital Karachi stated that he is employed as a Security Guard. His youngest brother Muhammad Younus along with his wife is residing in House No.142 at Central Muslimabad near Muhammadi Masjid old Golimar, Karachi. On same date i.e. 19.04.2005 at 12'O clock (midday) he was present on his duty, when his wife telephoned him and informed that Muhammad Younus had some quarrel in the mohalla and he has received stab wound of dagger and became injured. He called his another brother Muhammad Raza and both of them came to the house of Muhammad Younus at Pak colony where so many mohalla people were already gathered and they told him that at about 11:30 a.m. some quarrel had occurred between Muhammad Younus and mohalla's boy namely Iftikhar alias Heera alias Charli son of Muhammad Ashraf on some unknown matter. During the quarrel Iftikhar took out a dagger and caused its blow on chest of Muhammad Younus which hit him on his heart due to which blood started oozing and he fell down while accused fled from the place. Such statement of the complainant incorporated into the instant FIR.

2. After completion of usual investigation charge was framed against the accused person in which he pleaded not guilty and claimed to be tried.

3. In order to prove its case the prosecution examined 08 witnesses who exhibited various documents and other items in support of the prosecution case where after the prosecution closed its side. The appellant/accused recorded his statement under section 342, Cr.P.C. wherein he denied the prosecution allegations. However, the appellant neither examined himself on oath nor produced any witness in his defence.

4. After hearing the learned counsel for the parties and assessment of evidence available on record, learned trial Court vide judgment dated 18.07.2019 convicted and sentenced the appellant as stated above, hence this appeal has been filed by the appellant against his conviction.

5. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment, therefore, the same are not reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that the appellant is innocent; that the eye-witnesses are unreliable as they are all related to the complainant and the deceased; that the appellant's confession before the police is inadmissible in evidence; that the murder weapon (knife/churn) was foisted on the appellant by the police and that for any or all of the above reasons the appellant should be acquitted by extending him the benefit of the doubt. In support of his contentions, he placed reliance on the cases of Nazir Ahmed and others v. The State and others (PLD 2005 Karachi 18), Muhammad Nawaz and others v. The The State and others (2016 SCMR 267), Qaddan and others v. The State (2017 SCMR 148), Dhani Bux v. The State (2011 PTD 1419) Sajjad Hussain v. State (2019 YLR 2617), Hakim Ali and 4 others v. The State and another (1971 SCMR 432) and Muhammad Asif v. The State (2017 SCMR 486).

7. Learned Additional Prosecutor General Sindh and learned counsel for the complainant after going through the entire evidence of the prosecution witnesses as well as other record of the case supported the impugned judgment. In particular, they contended that there was no delay in lodging the FIR which named the appellant with the specific role of stabbing the deceased; that the eye-witnesses evidence was trust worthy, reliable and confidence inspiring and could be fully relied upon; that the murder weapon (knife/churri) had been recovered on the pointation of the appellant from a hidden place in his house and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of his contentions, he placed reliance on the cases of Qasim Shahzad and another v. The State and others 2023 SCMR 117, Ijaz Ahmad v. The State 2009 SCMR 99 and Khadim Hussain v. The State PLD 2010 SC 669.

8. I have heard the learned counsel for the appellant as well as learned APG and learned counsel for the complainant and have also perused the material available on record and the case law cited at the bar.

9. Based on my reassessment of the evidence of the PW's, especially the medical evidence I find that the prosecution has proved beyond a reasonable doubt that Muhammad Younis (the deceased) was murdered by knife/churn/dagger on 19.04.2005 at 11.30 am at Gali opposite to house No.142 Central Muslimabad near Muhammedi Masjid Purana Golimar Karachi.

10. The only question left before me therefore is who murdered the deceased by knife/churri/dagger at the said time, date and location?

11. After my reassessment of the evidence on record, I find that the prosecution has not proved beyond a reasonable doubt the charge against the appellant under section 302 (b) P.P.C. but has proved beyond a reasonable doubt the charge against the appellants under section 302(c) P.P.C. for which I now convict him for the following reasons;

(a) That the FIR was lodged after a delay of about 5 hours. Such slight delay has been fully explained by the complainant reaching to the hospital where the deceased was taken and where the post mortem was performed and other legal formalities before the body was returned to him for burial and thereafter the FIR was immediately lodged. Thus based on the particular facts and circumstances of this case I find that the slight delay in lodging the FIR has been adequately explained and as such is not fatal to the prosecution case. In this respect reliance is placed on the case Muhammad Nadeem alias Deemi v. The State 2011 SCMR 872.

(b) The appellant is named in the FIR with the specific role of murdering the deceased by dagger after a quarrel. Thus there was no time for the complainant to cook up a false case against the appellant. Even otherwise no specific/proven enmity has come on record between the appellant and the complainant or any PW which would motivate him/them to lodge a false case against the appellant. Admittedly the FIR is based on hearsay evidence as the complainant himself was not an eye-witness.

(c) The prosecution's case rests on the sole eye-witness to the murder and the eye-witness who saw the appellant fleeing the murder scene with the knife/ churri/dagger whose evidence I shall consider in detail below;

(i) Eye-witness PW 4 Mohammed Ismail. The deceased is his cousin. According to his evidence on 19.04.2015 he was going to meet his Khaloo when he just passed near Muhammodi Masjid when he saw from about 50 feet the appellant pulling out the Graiban of the deceased so he rushed to reach them and resolve their problem. When he reached there he saw the appellant pull out a churri/knife and attack the deceased on the chest with the knife. The appellant ran away and he took the deceased in a taxi to civil hospital who died on the way.

Admittedly the eye-witness was related to the deceased who was his cousin however it is well settled by now that evidence of related witnesses cannot be discarded unless there is some ill will or enmity between the eye-witnesses and the accused which has not been proven in this case by any reliable evidence. In this respect reliance is placed on the cases of Ijaz Ahmed v. The State (2009 SCMR 99), Nasir Iqbal alias Nasra and another v. The State (2016 SCMR 2152) and Ashfaq Ahmed v. The State (2007 SCMR 641).

This eye-witness knew the appellant before the incident and it was a day light incident and he saw the appellant from close range when he stabbed the deceased as such there is no case of mistaken identity. He gave his section 161, Cr.P.C statement with promptitude which was not materially improved on during the course of his evidence. He was not a chance witness as he was en route to see his Kaloo when he came across the incident and tried to intervene. Admittedly he is not named in the promptly lodged FIR however since the FIR was based on hearsay it is unlikely that an intervening person would be mentioned in it apart from the bare bones of the attack on the deceased by the appellant. He had no proven enmity or ill will with the appellant which would lead him to give false evidence against the appellant. He gave his evidence in straightforward manner and was not damaged during cross-examination. I find his evidence to be reliable, trust worthy and confidence inspiring especially in relation to the identification of the appellant and believe the same and place reliance on it.

It is well settled by now that I can convict the accused on the evidence of a sole eye-witness provided that I find his/her evidence to be trust worthy, reliable and confidence inspiring and in this case I have found the evidence of this eye-witness to be trust worthy, reliable and confidence inspiring especially in respect of the correct identification of the appellant and as such I believe the same and place reliance on it. In this respect reliance is placed on the cases of 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), Muhammad Ismail v. The State (2017 SCMR 713) and Qasim Shahzad and another v The State (2023 SCMR 117).

(ii) PW 6 Safina. The deceased is his wife. According to her evidence on 19.04.2005 she was present in her house at old Golimar with her mother in law, father in law and cousin Sohail whilst her husband/deceased was sitting outside. She heard noise of hues and cries and went outside where she saw the appellant with a knife running towards his house. She also saw her husband outside in an injured condition who was taken by Sohail and other mohalla people to hospital where he died. She saw that he had been stabbed through the heart. Her mother in law and father in law remained in the house as they could not walk.

This witness although related to the deceased who was her husband was not a chance witness as the incident happened just outside her house. When she heard the cries outside her house quite naturally she went to investigate as she knew her husband was outside. It was a day light incident and she saw the appellant running away from a few feet. She knew the appellant from before and saw him running to his house with a knife whilst her husband was lying injured as such there is no case of mistaken identity regarding the appellant. She had no ill will or enmity with the appellant and had no reason to implicate him in a false case. She gave her S.161, Cr.P.C statement with promptitude which was not materially improved upon during her evidence. She gave her evidence in a natural manner and was not dented during cross-examination. I find this witness to be an honest witness as she could have deliberately improved her statement and subsequent evidence to say that she saw the appellant stab her husband, which she could easily have done, in order to improve the prosecution case yet she failed to do so. Instead she only gave evidence that she saw the accused fleeing from the murder scene with a knife towards his house. Again I find her evidence to be trust worthy, reliable and confidence inspiring and believe the same especially with respect to the correct identification of the appellant who was fleeing the murder scene with a knife.

Having believed the evidence of the sole eye-witness to the murder and having also believed the evidence of the eye-witness who saw the appellant fleeing the murder scene with a knife I turn to consider the corroborative/ supportive evidence whilst keeping in view that it was it was held in the case of Muhammad Waris v. The State (2008 SCMR 784) as under;

"Corroboration is only a rule of caution and is not a rule of law and if the eye-witness account is found to be reliable and trust worthy there is hardly any need to look for any corroboration"

(d) That it does not appeal to logic, commonsense or reason that a real wife and cousin would let the real murderer of their real husband/cousin get away scot free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Whammed Ashraf v. State (2021 SCMR 758).

(e) The promptly recorded section 154, Cr.P.C. statement of the complainant which became the FIR was not materially improved on during the complainant's evidence and he was not damaged during cross-examination. Admittedly, his evidence is only hearsay but it is also fully corroborative of the eye-witness evidence

(f) That the medical evidence, post mortem report and MLC fully support the eye-witness/ prosecution evidence that the deceased died from receiving a single stab injury to his chest which was where the eye-witnesses in their evidence stated he was stabbed.(g) That the appellant was arrested one day after the incident and 6 days after his arrest he confessed to the crime to the police and then lead the police on his pointation to where he had hidden the murder weapon (knife/ churri/dagger) in his own house. Admittedly, the confession before the police is inadmissible in evidence however his pointation of the murder weapon hidden in his house in a place which only he could have known about is evidence against the appellant.

(h) As per chemical report the knife/churri/dagger which was found on the pointation of the appellant was also found to be stained with human blood.

(i) That there was no ill will or enmity between the police and the appellant and as such they had no reason to falsely implicate the appellant in this case. For instance by foisting the churri/ knife/dagger on him. Under these circumstances it is settled by now that the evidence of police witnesses is as good as any other witness. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474). Thus, I believe the evidence of the IO and other police witnesses who were not dented during cross-examination.

(j) The motive for the murder has come on record in both the FIR and the evidence of eye-witnesses PW 4 Muhammed Ismail and PW 6 Safina that following a quarrel between the appellant and the deceased the appellant stabbed the deceased.

(k) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence I consider these contradictions 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 appellant. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 SC 669). The evidence of the PW's provides a believable corroborated unbroken chain of events from the appellant quarreling with the deceased outside the house of the deceased to the appellant stabbing the deceased and then running away and later being arrested to the appellant pointing out the murder weapon in a hidden place.

(l) The contention of the appellant being a Juvenile has been dealt with in the impugned Judgment dated 18.07.2019 at para 30 with which finding I fully agree and concur with.

(m) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case as set out by the appellant is that he was falsely implicated in this case and that he did not commit the murder but rather it was some one else. The appellant however did not reveal where he was at the time of the murder and who he was with. Furthermore, the appellant did not give evidence on oath and did not call a single witness in support of his defence case. Thus, in the face of reliable, trust worthy and confidence inspiring eye-witness evidence and other supportive/corroborative evidence discussed above I disbelieve the defence case which has not at all dented the prosecution case.

(n) I find from the evidence on record however that that there was no prior ill will or enmity between the appellant and the deceased; that as admitted in the FIR and by the PW eye-witnesses referred to above a sudden quarrel broke out between the appellant and the deceased which lead the appellant after being provoked by the quarrel suddenly to give one stab wound to the chest of the deceased without premeditation with a knife which was already on the person of the appellant and hence I find that the case falls within the purview of section 302 ã P.P.C. and find that the prosecution has proved its case in respect of this offence against the appellant beyond a reasonable doubt and hereby convict him and sentence him for this offence. In this respect reliance is placed on the case of Azmat Ullah v. The State (2014 SCMR 1178) which held as under;

2024 Y L R 2136

[Sindh]

Before Arshad Hussain Khan, J

Ashir alias Waseem---Appellant

Versus

The State---Respondent

Criminal Appeal No. 578 of 2023, decided on 21st March, 2024.

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

----Ss. 377-B, 506-B & 34---Sexual abuse, criminal intimidation, common intention---Appreciation of evidence---Delay of 23 days in lodging FIR---Accused was charged that he along with his co-accused persons committed sodomy with the brother of the complainant at gun point and threatened him that if he disclosed such fact to anyone, they would kill him---From perusal of the record, it appeared that the alleged incident took place on 30.04.2022, whereas the FIR was lodged on 23.05.2022, after a delay of 23 days---Delay in lodging of the FIR assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

Muhammad Asif v. The State 2022 YLR Note 121; Muhammad Ismail v. The State 1991 MLD 577; Muneeruddin v. The State PLD 1982 Kar. 240; Muhammad Amir v. The State 2018 YLR 2592; Muhammad Nawaz alias Nazoo v. The State 1988 PCr.LJ 1986; Ali Sher v. The State 2018 YLR 56; Saeedullah v. Asfandiyar and another 2017 PCr.LJ Note 5; Atif Ali v. The State 2015 MLD 624; Shahid and 3 others v. The State 2002 MLD 624; Ejaz ul Haq v. The State and another 2013 YLR 2563; Muhammad Khan v. The State 2020 PCr.LJ Note 10; Saghir Ahmed v. The State and others 2023 SCMR 241; Sabir Hussain and another v. The State 2011 PCr.LJ. 1672; Shahid and 3 others v. The State 2002 YLR 2908; Zahid v. The State 2022 SCMR 50; The State /ANF v. Muhammad Arshad 2017 SCMR 283 and Zahid and another v. The State 2020 SCMR 590 ref.

Mehmood Ahmed and others v. The State and another 1995 SCMR 127 rel.

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

----Ss. 377-B, 506-B & 34---Sexual abuse, criminal intimidation, common intention---Appreciation of evidence---Delay of 04 days in recording the statements of witnesses after lodging the FIR---Accused was charged that he along with his co-accused persons committed sodomy with the brother of the complainant at gun point and threatened him that if he disclosed such fact to anyone, they would kill him---Record transpired that the statements under S.161, Cr.P.C., of the complainant and the victim were recorded on 27.05.2022 after a delay of 27 days of the incident and approximately after four days of lodging of the FIR that too without any plausible explanation---Late recording of statement under S.161, Cr.P.C., of a prosecution witness reduced its value to nil unless there was plausible explanation for such delay, which in the present case was lacking---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

Abdul Khaliq v. The State 1996 SCMR 1553 rel.

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

----Ss. 377-B, 506-B & 34---Sexual abuse, criminal intimidation, common intention---Appreciation of evidence---Contradictions in the statement of victim---Accused was charged that he along with his co-accused persons committed sodomy with the brother of the complainant at gun point and threatened him that if he disclosed such fact to anyone, they would kill him---Record showed that in the FIR, it had been mentioned that the incident took place on 30.04.2024, however, the victim remained mum till 23.05.2022, when the accused persons had shown the video in which the act of sodomy was being conducted with the victim and demanded to repeat the same offence failing which they would make the video viral---Such act of the accused and co-accused compelled the victim to disclose the incident to his mother who subsequently informed her elder son, the complainant, who lodged the FIR---Victim in his statements under S.161, Cr.P.C. stated that after few days of the incident some people of the area told him that they had the video of the incident upon which the victim told his mother who subsequently informed her elder son who lodged the FIR on 24.05.2022---In the statement under S.164, Cr.P.C., it had been mentioned by the victim that after few days of the incident some boys told him that the incident's video had been spread by the accused---Besides the said contradictions in statements of the victim, it was an admitted position that the victim neither disclosed the names of those boys who informed him about the video nor they had been produced in evidence---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 377-B, 506-B & 34---Sexual abuse, criminal intimidation, common intention---Appreciation of evidence---No forensic of Universal Serial Bus(USB) containing the video---Effect---Accused was charged that he along with his co-accused persons committed sodomy with the brother of the complainant at gun point and threatened him that if he disclosed such fact to anyone, they would kill him---Record reflected that the USB in which video of the incident was brought before the Court was neither mentioned in the charge framed by the Trial Court against the accused nor the forensic of the same had been done---Record also transpired that in the video of the incident, produced before the Court, in the USB, the accused was not seen, however, it was claimed that the audio in the said video was of the accused---Record further showed that the said USB was obtained by the complainant from the area councilor and subsequently provided to the Investigation Officer---However, the Investigating Officer neither examined the area councilor to ascertain the fact about the origin of the video nor bothered to send the said USB to Forensic Science Laboratory for its authenticity---In the absence of any forensic report qua the authenticity of the USB/video, the same could not be considered a legal basis for proceeding 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 accordingly allowed.

Muhammad Asif v. The State 2022 YLR Note 121 and Ishtiaq Ahmed Mirza v. Federation of Pakistan PLD 2019 SC 675 rel.

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

----Ss. 377-B, 506-B & 34---Sexual abuse, criminal intimidation, common intention---Appreciation of evidence---Medical evidence---DNA test not conducted---Accused was charged that he along with his co-accused persons committed sodomy with the brother of the complainant at gun point and threatened him that if he disclosed such fact to anyone, they would kill him---From perusal of the medical report of the victim, it appeared that in the present case the act of sodomy was not performed, however, in opinion of the Medico-Legal Officer possibility of an attempt of sodomy could not be ruled out---If two views were possible on the evidence adduced in the case, one indicating the guilt of accused and other pointing to his innocence, the view favourable to the accused was to be adopted---Record showed that neither DNA was conducted nor recovery of any incriminating material had been effected from the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

Shahid Orakzai v. Pakistan Muslim League 2000 SCMR 1969; Ijaz Hussain v. The State 2002 SCMR 1455; Iftikhar Hussain and others v. The State 2004 SCMR 1185 and Muhammad Zaubair v. The State 2010 SCMR 182 rel.

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

----Ss. 377-B, 506-B & 34---Criminal Procedure Code (V of 1898), S. 342---Sexual abuse, criminal intimidation, common intention---Appreciation of evidence---Possibility of false implication due to a prior dispute---Accused was charged that he along with his co-accused persons committed sodomy with the brother of the complainant at gun point and threatened him that if he disclosed such fact to anyone, they would kill him---Record showed that the accused in his statement under S.342, Cr.P.C., inter alia, deposed that he and the complainant worked in the same office and due to some dispute between them in respect of the office affairs he had been falsely involved in the case---Complainant and the victim though admitted the fact that the accused and the complainant worked in the same office, however, they disputed the incident as mentioned in the statement under S.342, Cr.P.C---Said facts reflected that the accused and the complainant party knew each other prior to the occurrence and as such possibility of dispute and difference between parties could not ruled out---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 377-B, 506-B & 34---Sexual abuse, criminal intimidation, common intention---Appreciation of evidence---Solitary statement of victim---Conviction---Scope---Accused was charged that he along with his co-accused persons committed sodomy with the brother of the complainant at gun point and threatened him that if he disclosed such fact to anyone, they would kill him---Present case was based on the solitary statement of the victim---Court was neither oblivious of heinousness of the offence nor the legal position that the presumption of truth, in such type of cases, was attached to statement of the victim and his family members as normally nobody would own such allegation, however, such presumption would not be sufficient for conviction unless the evidence of such set of witnesses passed the required test for judging the evidence judicially---Circumstances established that the prosecution had failed to prove its case against the accused beyond any reasonable doubt---Appeal against conviction was accordingly allowed.

Muhammad Khan v. The State 2020 PCr.LJ Note 10 rel.

(h) Criminal trial---

----Conviction---Benefit of doubt---Principle---For giving benefit of doubt to the accused, it is not necessary that there should be many circumstances creating uncertainty---If there is only one doubt, the benefit of the same must got to the accused.

Mst. Asia Bibi v. The State PLD 2019 SC 64 and Abdul Jabbar v. State 2019 SCMR 129 rel.

(i) Criminal trial---

----Conviction---Benefit of doubt---Principle---Conviction must be based on unimpeachable and reliable evidence---Any doubt arising in the prosecution case is to be resolved in favour of the accused.

Abdul Naeem A. Qureshi and Muhammad Ali for Appellant.

Fayyaz Hussain Sabti, Additional Prosecutor General for the State.

Date of hearing: 19th February, 2024.

Judgment

Arshad Hussain Khan, J.---This Cr.Appeal has been preferred against the judgment dated 10.11.2023, passed by learned Xth Additional Sessions Judge, Krachi, [West] in Sessions case No.2097/2022 [Crime No.109/2022], registered under Sections 377-B, 506-B, 34, P.P.C. at Police Station Maripur, Karachi, whereby learned trial court has convicted the appellant / accused as follows :

"32……..The accused Ashir alias Waseem son of Boota Masih is hereby convicted under Section 265-H(ii), Cr.P.C. for the offence punishable under Section 377-B, P.P.C. and sentenced to suffer RI for 14 years and to pay fine of Rs.10,00,000/- [one million] and in case of default of payment of fine he will further suffer SI for six months only. The accused is also hereby convicted for the offence punishable under Section 506, P.P.C. and sentenced to suffer SI for two years only and to pay fine of Rs.50,000/- and in case of failure to pay fine he will further suffer SI for three months. All convictions /sentences will run concurrently".

1. Briefly, the facts as narrated in the FIR by the complainant namely; Wajid Mehmood son of Abdul Jabbar are that on 30.4.2022, at around 2.00 pm his mother sent his younger brother namely; Abdul Rehman, a student, aged about 16 years, to Contractor Raju, who kept Manuel alias Menga as a washerman, at Dhobi Ghaat, for dropping the blanket for washing and at about 3:30 pm his younger brother returned back to home. On 23.5.2022, his younger brother-Abdul Rehman disclosed to his mother that on 30.4.2022 when he reached at Dhobi Ghaat for getting the blanket washed he met Menga Dhobi, where Ashir alias Waseem and one unknown person were also present. They pointed pistol and knife and committed sodomy with him one by one in a room at Dhobi Ghaat where machines are installed and threatened him that if he disclosed such fact to anyone they would kill him. Now, (1) Manuel alias Menga son of Patras, (2) Ashir alias Waseem son of Boota Masih shown him video in which the act of sodomy was being conducted and are pressurizing his younger brother to again commit the same. His mother informed him (the complaint) about the incident. Hence, subject FIR was registered.

2. It appears from the record that after registration of the FIR, investigation was conducted and the above named accused was arrested; after usual investigation he was challaned for the offence punishable under Sections 377-B and 506-B and 34, P.P.C. while accused Menga, absconder in the case, was challaned under Section 512, Cr.P.C. During trial, the charge containing prosecution allegations against the present accused was framed on 15.12.2022 at Exh. 4, to which the he pleaded not guilty and claimed to be tried, vide his plea at Exh.4/A.

3. At the trial, in order to establish accusation against the appellant/accused, prosecution had examined the following witnesses:

(i) PW Abdul Rehman [victim] was examined at Exh.5, who produced his statement under Section 164, Cr.P.C. at Exh.5/A.

(ii) PW Wajid Mehmood [complainant] was examined at Exh.6, who produced the FIR and memo. of inspection at Exh.6/A and 6/B.

(iii) PW HC Asif Khan was examined at Exh.8, who produced Roznamcha entry at Exh.8/A.

(iv) PW MLO Dr. Gulzar Ali was examined at Exh.9 who produced MLC and application at Exhs.9/A and 9/B.

(v) PW PI Ali Asghar [I/O] was examined at Exh.10, who produced Roznamcha entries, photographs of place of incident, letter to MLO, CRO at Exh.10/A to 10/G.

(vi) PW Asif Raza Meer [Judicial Magistrate] was examined at Exh.11 who produced photographs of accused at Exh.11/A and B.

1. Before the trial court aforesaid witnesses were cross-examined by learned counsel for the appellant / accused. Thereafter, learned DDPP closed the prosecution side, vide statement at Exh.12. The statement of the accused under Section 342, Cr.P.C. was recorded at Exh.13, wherein he denied the prosecution allegations and claimed to be innocent. He further deposed that the victim has falsely deposed against him in his statement recorded under Section 164, Cr.P.C. as well as before this Court. Lastly, the accused prayed for his acquittal and justice. However, he has not been examined himself on Oath nor produced any defence witness in support of his claim. Subsequently, trial court after hearing the parties counsel, convicted and sentenced the accused Ashir @ Waseem as mentioned in the preceding para. Hence, instant appeal has been preferred against the impugned judgment.

2. Learned counsel for the appellant/accused contended that the accused is innocent and has falsely been dragged into this case due to malafide intention and ulterior motives; that the complainant is not the eye-witness of the alleged incident and his all evidence is based on heresay. He has further contended that initially burden of proof is lying on the prosecution to prove the guilt against the appellant/accused. He has further contended that there are contradictions and inconsistencies in the prosecution case due to which the whole case of the prosecution has become doubtful; that the prosecution has not been able to prove the case as alleged against the appellant/accused beyond the shadow of reasonable doubt. Learned counsel has further contended that the alleged victim was examined by the MLO Dr. Gulzar Ali who opined after examining the victim that no such act of sodomy was taken place, however, he deposed that however attempt to commit act of sodomy cannot be ruled out. He has argued that there is no direct or indirect evidence available on the record against the appellant/accused. It is argued that there is no eye-witness of the alleged incident and further no one has seen the appellant/accused Ashir at the place of incident with the alleged victim or any other source which corroborate the statement of the victim to connect the appellant/accused with the alleged incident. He has argued that the prosecution has failed to trace out the alleged unknown third accused. He has also argued that according to the video, the person who is committing the alleged act of sodomy is Menga and not the present accused as the accused Ashir is not visible in such video; the only evidence against the present appellant/accused is that the victim alleged that the person who is making the video, is accused Ashir and such statement of the victim is solitary and due to such statement the accused Ashir was implicated in this case and it is the duty of the prosecution to prove the case with other visible and corroborated evidence as mentioned in Article 19 of Qanun-e-Shahadat Order, 1984, which could connect the accused Ashir with the alleged incident. He has further contended that the prosecution story is full of doubt and without any strong and corroborative evidence an innocent person cannot be convicted. He has argued that the trial court has seriously erred by not considering the material evidence brought on the record and by ignoring the cross-examination, which completely and absolutely shatters the case of the prosecution against the appellant/accused; that the trial court has failed to apply its judicial mind and passed the impugned judgment in hasty manner. He has urged that the prosecution has also failed to prove its case, therefore, the appellant/accused is entitled for acquittal. In support of his arguments he has placed reliance on the cases of Muhammad Asif v. The State [2022 YLR Note 121], Muhammad Ismail v. The State [1991 MLD 577], Muneeruddin v. The State [PLD 1982 Karachi 240], Muhammad Amir v. The State [2018 YLR 2592], Muhammad Nawaz alias Nazoo v. The State [1988 PCr.LJ 1986], Ali Sher v. The State [2018 YLR 56], Saeedullah v. Asfandiyar and another [2017 PCr.LJ Note 5], Atif Ali v. The State [2015 MLD 624], Shahid and 03 others v. The State [2002 MLD 624], Ejaz ul Haq v. The State and another [2013 YLR 2563], Muhammad Khan v. The State [2020 PCr.LJ Note 10], Saghir Ahmed v. The State and others [2023 SCMR 241], Sabir Hussain and another v. The State [2011 PCrLJ 1672], and Shahid and 3 others v. The State [2002 YLR 2908].

3. Conversely, Additional Prosecutor General while supporting the impugned judgment has argued that the prosecution has proved its case against the appellant/accused. He has urged that the appellant/accused is very much nominated in the FIR with the alleged role of committing sodomy with the minor victim Abdul Rehman aged about 16 years. He has further contended that the minor has fully implicated the appellant/accused and identified him being the same person who along with two other accused persons committed the act of sodomy with him and also made his video. The victim has also clearly implicated the appellant/accused Ashir with the alleged act of sodomy. He has further contended that the victim has no enmity or malice with the appellant/accused to falsely implicate him with the alleged crime. It is further contended that watching of the video clip clearly shows that the co-accused was committing the alleged act while one accused is making the video and according to the victim the person who was making the video is the present accused Ashir. Lastly, it is urged that the trial court has rightly appreciated the evidence, convicted and sentenced the appellant/accused in accordance with law and as such the appeal may be dismissed. In support of his arguments he has placed reliance on the cases of Zahid v. The State [2022 SCMR 50], The State /ANF v. Muhammad Arshad [2017 SCMR 283] and Zahid and another v. The State [2020 SCMR 590].

4. Heard learned counsel for the appellant / accused and the learned Additional Prosecutor General and have also gone through the entire evidence available on the record.

5. From perusal of the record, it appears that the alleged incident took place on 30.04.2022 whereas the FIR was lodged on 23.05.2022 after a delay of 23 days. Whereas the statements under section 161, Cr.P.C. of the complainant and the victim were recorded on 27.05.2022 after a delay of 27 days of the incident and approximately after four days of lodging of the FIR that too without any plausible explanation. It is well settled proposition of law that delay in lodging of the FIR assume great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate. It is also a settled position of law that late recording of statement under section 161, Cr.P.C. of a prosecution witness reduces its value to nil unless there is plausible explanation for such delay which in the present case is lacking.

6. Record also shows that in the FIR, it has been mentioned that the incident took place on 30.04.2024, however, the victim remained mum till 23.05.2022, when the Ashir and Menga had shown the video in which the act of sodomy was being conducted with the victim and demanded to repeat the same offence failing which they would viral the said video. Such act of the appellant/accused Ashir and co-accused Menga compelled the victim to disclose the incident to his mother who subsequently informed her elder son Wajid Mehmood (the complainant) who lodged the FIR. Whereas the victim in his statements under section 161, Cr.P.C. stated that after few days of the incident some area people told him that they have the video of the incident upon which the victim told his mother who subsequently informed her elder son Wajid Mehmood who lodged the FIR on 24.05.2022 and whereas in the statement under section 164, Cr.P.C. it has been mentioned by the victim that after few days of the incident some boys told him that his incident's video has been surfaced by appellant / accused Ashir. Besides the above contradictions in the statements of the victim, it is an admitted position that the victim neither disclosed the names of those boys who informed him about the video nor they have been produced in the evidence.

7. Record also reflects that the USB in which video of the incident was brought before the court was neither mentioned in the Charge, framed by the trial court against the appellant/accused nor the forensic of the said same has been done. This Court in the case of Muhammad Asif v. The State [2022 YLR Note 121], while dealing with identical issue, inter alia, has held under:

"In my view, framing of charge is the first major step in a criminal trial where the Court is expected to apply its mind to the entire record placed before it. Every criminal Court has the responsibility to frame the Charge consistent with the legal requirement under the provisions contained in Cr.P.C. Every such Court shall pay personal attention while framing Charge. A casual, perfunctionary, haphazard manner by framing of charge will result in serious miscarriage of justice and it will deprive the accused of his valuable right to have a fair trial. It will also affect to the prosecution adversely. Such defect in Charge alone could be a ground of acquittal…."

1. Record also transpires that in the video of the incident, produced before the court, in the USB under Article-A, the appellant/accused is not seen, however, it is claimed that the audio in the said video is of the appellant/accused. The record further shows that the abovesaid USB was obtained by the complainant from the area councilor and subsequently provided to the Investigation Officer. However, the I.O neither examined the area councilor to ascertain the fact about the origin of the video nor bothered to send the said USB to Forensic Science Laboratory for its authenticity. In the absence of any forensic report qua the authenticity of the USB/video, the same cannot be considered a legal basis for proceeding against the appellant/accused. In the case of Ishtiaq Ahmed Mirza v. Federation of Pakistan [PLD 2019 SC 675] the Supreme Court of Pakistan, while dilating upon the requirements for admissibility of an audio tape or video in evidence before a court of law and the mode and manner of proving the same before the court, inter alia, has held that with the advancement of science and technology, it is now possible to get a forensic examination, audit or test conducted through an appropriate laboratory so as to get it ascertained as to whether an audio tape or a video is genuine or not, therefore, without a forensic examination, audit or test, it is becoming more and more unsafe to rely upon the same as a piece of evidence in a court of law. Mere producing of footage as a piece of evidence without any forensic test is not sufficient to be relied upon unless and until corroborated and proved to be genuine.

2. Besides above the MLO [Exh. No.9] in his evidence produced the Medico Legal Certificate as [Exh.9/B] and has stated as under:

"… I examined the victim and observed the following things on his body.

On external examination: There was no bruise, abrasion, laceration, swelling or any marks of violence/injury seen at the time of examination.

On internal examination: there was no swelling, abrasion, any tear or any marks of injury seen.

I had not collected the anal swabs or blood sample of the victim due to lapse of time.

Opinion: In my opinion the act of sodomy was not performed, however attempt for sodomy cannot be ruled out."

1. From perusal of the above Exh.9/B, it appears that in the present case the act of sodomy was not performed, however, if we take the opinion of the MLO qua possibility of an attempt of sodomy cannot be ruled out, even then, it is a well settled principle of law that if two views are possible on the evidence adduced in the case, one indicating the guilt of accused and other to his innocence, the view favourable to the accused is to be adopted. It is also a matter of record that neither DNA was conducted nor recovery of any incriminating material has been effected from the appellant/accused. Record also shows that the appellant/accused in his statement under section 342, Cr.P.C. inter alia, deposed that he and the complainant work in the same office and due to some dispute between them in respect of the office affairs he has been falsely involved in the case. The complainant and the victim though admitted the fact that the appellant/accused and the complainant work in the same office, however, they disputed the incident as mentioned in the above statement under section 342, Cr.P.C. The above facts reflects that the appellant/accused and the complainant party known to each other prior to the occurrence of the incident and as such possibility of dispute and difference between parties cannot ruled out.

2. Before going into further discussion, it would be advantageous to reproduce the relevant excerpts of the deposition of the Investigating Officer of the case PW-5 [Exh.10]:

"It is correct to suggest that the complainant party did not produce any witness in respect of any incident taken place on 23.5.2022 [Sic]….it is correct to suggest that in his statement under section 164, Cr.P.C.the victim Abdul Rehman deposed before learned Judicial Magistrate that alleged video of his alleged act of sodomy allegedly made by the present accused Ashir was seen by his friends. It is correct to suggest that the victim had not disclosed the names of such friends who had seen such video which was allegedly made viral by the present accused in his statement recorded under section 164, Cr.P.C. It is correct to suggest that the complainant party has not produced any witness against the present accused. In fact complainant and victim are implicating the accused. It is correct to suggest that in the alleged video the present accused Ashir is not visible in the video. It is correct to suggest that I had not got verified the video from the forensic laboratory. It is correct to suggest that except statement of the complainant and victim no any other proof produced by the complainant party which connects the present accused in the alleged offence. In fact only USB has been produced by the complainant party with the claim that the alleged video was made by the present accused Ashir. It is correct to suggest that I have not associated any witness from the place of occurrence which confirmed that the accused was present at the alleged place of occurrence during the alleged offence. …………It is correct to suggest that MLO has also not secured any anal swabs of victim at the time of his medical examination. It is correct to suggest that according to the MLO there was no mark of any injury on the body of the victim or on the private parts of the victim…"

1. The present case is based on the solitary statement of the victim. The court is neither oblivious of heinousness of the offence nor the legal position that the presumption of truth, in such type of cases, is attached to statement of the victim and his family members as normally nobody would own such allegation, however, such presumption would not be sufficient for conviction unless the evidence of such set of witnesses passed the required test for judging the evidence judicially. Insofar as the heinousness of the offence is concerned, the Supreme Court of Pakistan in the case of Saghir Ahmed v. The State and others [2023 SCMR 241] while dealing with somewhat on the identical issue has held as under:

2024 Y L R 2323

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

PC Veeram Khan and another---Appellants

Versus

The State---Respondent

Criminal Appeals Nos. S-23 and S-24 of 2017, decided on 19th February, 2024.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, criminal misconduct---Appreciation of evidence---Delay of more than two years in lodging FIR---Consequential---Accused were charged for misappropriating service rifle G-3, magazine and bullets---Record showed that the FIR was registered after a delay of more than two years as, according to the complainant, on 19.7.2008 he had issued and handed over G-3 Rifle bearing No.89346, with five magazines and 100 bullets of G-3 to accused for performing his official duty who remained absent from his duty from 27.07.2008 and did not deposit the arm and ammunition, therefore, such report was sent to the high-ups---On 01.09.2009 the accused appeared and brought the rifle etc. in presence of two Police Constables---On checking, it was found that the rifle was not with same number and that it was a fake rifle---First Information Report was lodged on 18.06.2011---No explanation had been furnished by the prosecution as to why FIR was not registered when the rifle and magazines etc. were not deposited by the accused on the day when the same were to be deposited under the relevant procedure/practice and even on the day when the accused had brought and produced a fake rifle etc. before the complainant---In the circumstances, apparently, in the case of accused FIR was registered after an inordinate delay of more than two years---Same was the position in other case relating to other accused, wherein the delay was even for a longer period i.e. about seven years, as the Arms and Ammunition were issued to said accused on 31.01.2004---No explanation, at all, had been furnished by the prosecution for such a long delay in both the cases---Unexplained delay in lodging the FIR created doubts about the involvement of actual culprits as the probability of manipulation in such circumstances could not be ruled out---Appeal against conviction was allowed accordingly.

Ayub Masih v. The State PLD 2002 SC 1048 and Sabir Hussain v. The State 2022 YLR 173 rel.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, criminal misconduct---Appreciation of evidence---Contradictions and discrepancies in the statements of witnesses---Accused were charged for misappropriating service rifle G-3, magazine and bullets---From perusal of the evidence adduced by the prosecution as well as discrepancies and admissions/lacunas left by the prosecution itself, the prosecution itself had dented its own case by not following the practice, procedure and the law---Moreover, alleged rifles were not sealed at the time of their recovery nor such memos. were adduced in evidence at the time of trial---Due to such discrepancies and faults on the part of prosecution, evidentiary value of the prosecution witnesses had been vitiated by the prosecution itself which created a lot of doubts into its veracity---Appeal against conviction was allowed accordingly.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Criminal breach of trust, criminal misconduct---Appreciation of evidence---Withholding material witnesses---Accused were charged for misappropriating service rifle G-3, magazine and bullets---Record showed that the mashir of recovery in both the cases was given up and was not examined by the prosecution---Likewise, witness who, according to the complainant, was handed over the arm and ammunition to be kept as 'amanat' was also given up in the case of accused---In that view of the matter, in light of Art. 129(g) of the Qanun-e-Shahadat, 1984, strong inference/ presumption could be gathered that had the said witnesses been examined, they would not have supported the case of prosecution---Appeal against conviction was allowed accordingly.

Abdul Ghani v. The State 2022 SCMR 2121 rel.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, criminal misconduct---Appreciation of evidence---Delay in issuing the Ballistic Expert Report---Effect---Accused were charged for misappropriating service rifle G-3, magazine and bullets---In the case of one of the accused, report of Chemical Examiner was issued in the year 2011---In fact, the rifle and magazines etc. were brought and produced by the said accused before the complainant on 01.9.2009, whereas report of the Ballistic Expert was issued on 01.7.2011 i.e. after a delay of 22 months, hence no sanctity could be attached to said report---In case of other accused, the Rifle allegedly brought and produced by the accused before the complainant was not even sent to the Ballistic Expert---In fact, according to the complainant himself, it was sent for verification to the armourer, who had categorically admitted in his cross-examination that he was not a qualified Ballistic Expert, despite that he issued the certificate---Said expert admitted that neither his name was mentioned in the charge sheet as a witness, nor his statement was recorded during the investigation by the Investigating Officer---According to said witness, the rifle was not sealed at the time when the same was produced before him and that he did not make any entry in the roznamcha regarding the checking of weapons, nor produced the same before the Trial Court---Said witness also admitted that he had remained with ASI in order to assist him---In view of said situations, the certificate issued by said witness in respect of the rifle allegedly deposited by accused was also of no evidentiary value---Appeal against conviction was allowed accordingly.

Gullab alias ARO v. The State 2023 PCr.LJ 958 and Amanullah v. The State 2022 YLR 1681 rel.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal Procedure Code (V of 1898), S. 103---Criminal breach of trust, criminal misconduct---Appreciation of evidence---Non-association of private witnesses---Effect---Accused were charged for misappropriating service rifle G-3, magazine and bullets---As per record, there seemed to be violation of S.103, Cr.P.C., as no private person was associated as mashir---Although it had categorically been admitted by prosecution witnesses that private persons were available at the relevant time---Police witness admitted in his cross-examination that no private person was called to act as mashir---In the other case, he admitted that no private person was called by the Investigating Officer to act as mashir in that case---Appeal against conviction was allowed accordingly.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)--- Criminal breach of trust, criminal misconduct---Appreciation of evidence---Accused were charged for misappropriating service rifle G-3, magazine and bullets---Although in case of one of the accused the alleged offence related to the year 2004 whereas in the other case the alleged incident pertained to the year 2008, but despite that the FIRs in both the cases were registered on one and same day in the year 2011---It was not understandable that what was the point in not taking any action in respect of the former case which allegedly took place in the year 2004 and then registering the FIR in said case along with the latter case simultaneously---Said fact gave strength to the plea raised on behalf of the accused that the rifles were changed by Police Officials/witnesses---Besides, admittedly a departmental enquiry was also conducted in respect of alleged offence, but neither any enquiry report had been produced during course of evidence, nor the Enquiry Officer who allegedly conducted the enquiry was examined by the prosecution---Such fact also put a dent in the prosecution case---Appeal against conviction was allowed accordingly.

(g) Criminal trial---

----Conviction---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 Mohammad v. The State 1992 SCMR 1134 and Shamoon alias Shamma v. The State 1995 SCMR 1377 rel.

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

----S. 409---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, criminal misconduct---Appreciation of evidence---Misappropriation not proved---Accused were charged for misappropriating service rifle G-3, magazine and bullets---Prosecution had alleged that accused had misappropriated the official weapons viz. the rifles but said charge had not been established by the prosecution through its evidence---In case of one of the accused, concerned police official stated and admitted in his cross-examination that alleged G-3 rifle produced by ASI was not in sealed condition nor its mashirnama was prepared at the time of its recovery---Moreover, one of the witnesses had stated in clear terms before the Trial Court that on 18.06.2011 ASI Incharge came along with a letter issued by the then SSP and disclosed that the rifle had been stolen---Most of the witnesses denied to have witnessed the incident---Laboratory report was also issued in the year 2011 i.e. two years after the incident---Though per prosecution case, accused allegedly produced rifles before the concerned yet no such entry was kept by the police nor any memo. of its recovery was prepared---Even the officer before whom the accused had allegedly produced the rifles did not issue any receipt or acknowledgement duly signed/verified by the accused over the memo/register or any document---Hence, it could not safely be said that the accused had produced alleged rifles as per claim of the prosecution---Even at the time of producing of rifles before the concerned, no other witness was available or arranged to witness the recovery proceedings from the accused---In such a situation, question of misappropriation as defined under S.409, P.P.C was not established by the prosecution---Appeal against conviction was allowed accordingly.

(i) Criminal trial---

----Benefit of doubt---Principle---Accused cannot be deprived of benefit of doubt merely because there is only one circumstance.

Muhammad Akram v. The State 2009 SCMR 230 rel.

Asif Ali Abdul Razzak Soomro for Appellant (in Criminal Appeal No. S-23 of 2017).

Asif Ali Abdul Razzak Soomro for Appellant (in Criminal Appeal No. S-24/2017).

Ali Anwar Kandhro, Addl: PG along with ASI Aijaz Ali Thebo of PS New Foujdari, Shikarpur, ASI Imamuddin Khoso, Incharge Police Headquarters Shikarpur, PC Abdul Majid Jatoi, I/C Armory, Police Headquarters, Shikarpur for the State.

Date of hearing: 19th February, 2024.

Judgment

Muhammad Saleem Jessar, J.---Through this single judgment, I propose to dispose of captioned two criminal appeals. Since, factual as well as legal aspects in both cases are almost same.

1. Through these two Cr. Appeals the appellants, Veeram Khan son of Adam Khan and Abdul Rehman son of Jamaluddin, have assailed two Judgments; both dated 16.02.2017, passed by learned Special Judge Anti-Corruption, (Provincial) Larkana vide Spl. Case No. 35 of 2011 and Spl. Case No.36 of 2011, being outcome of FIRs bearing Nos. 120 of 2011 and 121 of 2011 respectively, registered for offence under Section 409, P.P.C. read with Section 5(2) Act-II of 1947, registered with P.S. New Foujdari, Shikarpur, whereby both the accused / appellants were convicted for offences under aforesaid Sections and sentenced to undergo rigorous imprisonment for four (4) years and to pay fine of Rs.1,00,000/- each and in default to suffer six months more imprisonment. The benefit of Section 382-B, Cr.P.C. was extended to both the appellants.

2. Brief facts of the case relating to Cr. Appeal No.S-23 of 2017, as per FIR No. 120/2011 lodged at P.S. New Foujdari, Shikarpur, under Section 409 P.P.C. read with Section 5(2) Act-II of 1947, are; that on 18.6.2011 complainant ASI Gulzar Ahmed, who was posted as Incharge Kot Police Line Shikarpur, lodged instant FIR, stating therein that PC-No.1583 Taimor Ali and PC-No.1494 Dilshad Ahmed were posted as helpers with him and in their presence on 19.7.2008 ASI Gulzar Ahmed had issued and handed over G-3 Rifle bearing No.89346, with five magazines and 100 bullets of G-3 to accused / appellant PC Veeram Khan Luhar for performing his official duty, who remained absent from his duty from 27.7.2008 and did not deposit the Arm and Ammunition. Such reports were sent to the high-ups and on 01.9.2009 at 4.00 p.m. when complainant, PC Taimor and PC Dilshad were available at Kot, where accused Veeram Khan Luhar appeared at Police Line Kot for depositing G-3 Rifle No.90123 along with one magazine and two live bullets. It is alleged that complainant took the Arm and Ammunition, verified the same and found that Rifle was not with same number and was fake. The complainant intimated such fact to his high-ups, who directed him to get the Arm and Ammunition deposited, therefore, Rifle No.90123, one magazine and two bullets given by accused Veeram Khan Luhar, so also another rifle bearing No.90737 given by PC-1884 Abdul Rehman Bhutto were deposited by the complainant with WHC Abdul Ghafoor Dayo of New Foujdari Police Station against receipt for keeping the same as "amanat" by WHC Abdul Ghafoor Dayo and such entry was recorded at police station and such report No.4063 dated: 12.9.2009 was sent to the DPO through Line Officer for misappropriation of Service Rifle G-3, magazine and bullets. It is further alleged that thereafter on the orders of DPO, Shikarpur, he registered the above said FIR against accused Veeram Khan.

3. After usual investigation the accused was challaned by Investigation Officer of P.S. New Foujdari, Shikarpur before the Court showing him as absconder and after issuance of NBWs he voluntarily surrendered before the Court and obtained bail.

4. A formal charge against the accused was framed vide Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea Ex.3.

5. In order to prove the charge, process was issued against the PWs and process server reported vide his statement recorded as Ex.5 that PW Rab Dino had expired. However, prosecution examined PW Gulzar Ahmed at Ex.7, who produced copies of relevant registers, reports sent to the DSP and FIR as Ex.7-A to 7-D, PW Dilshad Ali was examined at Ex.8, who produced mashirnama as Ex.8-A. PW Taimor was given up vide statement of ADPP at Ex.9. PW Nazeer Hussain was examined at Ex.9, while PW Abdul Ghafoor was examined at Ex.10. PW Ali Muhammad was examined at Ex.11, who produced copy of his findings at Ex.11-A. PW Mehrab Ali was examined at Ex.12, whereas PW Toufique Ahmed was examined at Ex.13, who produced mashirnama as Ex.13-A. PW Aijaz Ali Thebo was examined at Ex.14, who produced report sent to the SSP and letter of expert as Ex.14-A & B. ADPP submitted statement enclosing therewith report of the expert at Ex.15, thereafter, he closed prosecution side vide statement at Ex.16.

6. Statement of accused under Section 342 Cr.P.C. was recorded at Ex.17, wherein he pleaded his innocence; however, he declined to examine himself on oath as provided under Section 340(2), Cr. P.C. nor produced any witness in his defence.

7. The facts of the prosecution case relating to Cr. Appeal No.S-24 of 2017 are that on 18.6.2011 complainant ASI Gulzar Ahmed, Incharge Kot Police Line Shikarpur lodged FIR No. 121/2011 at P.S. New Foujdari, Shikarpur under Section 409, P.P.C., read with Section 5(2) Act-ll of 1947, stating therein that he is posted at Police Line Shikarpur as Kot Incharge whereas PC-1583 Taimor Ali and PC-1494 Dilshad Ahmed were posted as helpers with him and in their presence on 31.01.2004 G-3 Rifle bearing No.90737, five magazines and 120 bullets of G-3, were issued according to the Register to PC-1884 Abdul Rehman Bhutto, who was performing his duties at that time at P.S. Lakhi Ghulam Shah. The accused remained absent from his duty and did not deposit the service weapon and ammunition, therefore, such report was sent to the high-ups. It was further stated that on 03.4.2006 complainant along with PC Taimor and PC Dilshad was available at the Kot where PC Abdul Rehman, who was subsequently dismissed from service, brought G-3 Rifle without magazine along with bullets. It is further alleged that complainant got checked/ verified said Rifle through Armourer, Police Line, Shikarpur, who issued certificate that G-3 Rifle was not original Rifle and it did not possess same number and that number 90737 was punched thereon, thus it was a fake rifle. Thereafter, the complainant communicated such information to his high-ups who directed him to deposit said Rifle, so also other Rifle No.90123, one magazine and two bullets, brought by PC-1372 Veeram Khan Luhar. Accordingly, he deposited the same with WHC Abdul Ghafoor Dayo of New Foujdari Police Station for keeping the same as "amanat" but WHC Abdul Ghafoor Dayo replied that SHO was not available at that time, therefore, he would give receipt and entry of Roznamcha on his arrival and the above property was kept as "amanat" in Malkhana. Thereafter, order was received from DPO Shikarpur vide Letter bearing No. EO-EI-9163, dated 06.6.2011 for registration of case against PC Abdul Rehman Bhutto for misappropriation of G-3 Rifle No.90737, five magazines and 120 bullets and for depositing fake Rifle with punched No.90737, as such, FIR was registered.

8. After usual investigation the accused was challaned before the Court by Investigating Officer of P.S. New Foujdari, Shikarpur showing the accused as absconder and after issuance of NBWs the accused was arrested and produced before the trial Court.

9. A formal charge against accused was framed at Ex.2, to which he pleaded not guilty and claimed to be tried vide his plea Ex.3.

10. In order to prove the charge, process was issued against the prosecution witnesses and process server reported that P.W. ASI Rab Dino had expired, accordingly his statement was recorded at Ex.5.

11. In order to prove its case, prosecution examined PW Gulzar Ahmed at Ex.6, who produced copies of relevant registers, reports sent to the DSP and FIR as Ex.6-A to 6-H. PW Dilshad Ali was examined at Ex.7, who produced mashirnama as Ex.7-A. PW Taimor was given up vide statement of ADPP Ex.8. Thereafter, learned ADPP, appearing for the State, moved application Ex.9 for calling PW Mathar Ali. PW Nazeer Ahmed could not be examined as he had been dismissed from service and had shifted to some unknown place as per statement of process server recorded vide Ex.10. PW Abdul Ghafoor was given up by ADPP vide his Statement Ex.12. PW Manthar Ali was examined at Ex.13, whereas PW Mehrab was examined at Ex.14. PW Toufique Ahmed was examined at Ex.15, who produced mashirnama as Ex.15-A. PW Ali Muhammad was examined at Ex.16, who produced copy of his findings and letter of expert sent by the Rabdino as Ex.16-A & B. Thereafter, learned ADPP closed prosecution side vide his statement at Ex.17.

12. The statement of accused under Section 342 Cr.P.C. was recorded at Ex.18, wherein he pleaded his innocence; however, he declined to examine himself on oath as provided under Section 340(2), Cr.P.C. nor produced any witness in his defence.

13. After formulating the points for determination in above two cases, recording evidence of the prosecution witnesses and hearing counsel for the parties, learned trial Court convicted and sentenced both appellants by separate judgments, as stated above. Against said judgments these appeals have been preferred by the accused / appellant(s) respectively.

14. I have heard learned counsel for the appellants as well as learned Additional P.G. appearing for the State and perused the material made available before me on the record with their assistance.

15. Learned counsel for the appellants submitted that the offence in two cases had taken place on 19.7.2008 and 31.1.2004 respectively, whereas FIRs were lodged on 18.6.2011, with a delay of about more than two years and seven years respectively, and no plausible explanation was furnished by the prosecution for such an inordinate delay. He further submitted that offence under section 409, P.P.C. is a scheduled offence; however, it was registered at P.S. New Foujdari, Shikarpur and was also investigated by the ordinary police of same police station instead of Anti-Corruption Establishment, therefore it being a material illegality on the part of prosecution is not curable. He next submitted that PW Taimoor, who was mashir of recovery, was not examined by the prosecution in both cases, whereas PW Abdul Ghafoor, who was entrusted the rifle by the complainant Gulzar Ahmed as amanat, was not examined in the case of appellant Abdul Rahman, thus there is strong presumption that if said witnesses had been examined, they would not have supported the case of prosecution. He drew attention of the Court towards evidence of WHC Abdul Ghafoor in the case of appellant Veeram Khan and stated that he admitted in his cross-examination that alleged G-3 Rifle produced by ASI Gulzar Ahmed was not sealed and no mashirnama was prepared at that time in respect of the rifle bearing No. 89346 to be G-3 Rifle. He also drew attention of the Court towards evidence of PW Nazir Hussain, at page 59 of the Paper Book, and submitted that he had stated in clear terms before the trial Court that on 18.6.2011 ASI / Kot Incharge came along with letter of the then SSP and disclosed that the rifle had been stolen away from the Kot, hence he got registered FIR and produced the same before the trial Court at Ex.7-E. Learned counsel further contended that most of the prosecution witnesses denied to have witnessed the incident, hence, the impugned judgment suffers from illegalities and is liable to be set aside. As far as chemical report submitted in the case of appellant Veeram Khan, available at page 81 of the paper book, is concerned, learned counsel submitted that it was issued in the year 2011, viz. two years after the incident, hence no sanctity could be attached to said report.

16. Learned Addl. P.G. appearing for the State, opposed the appeals and stated that the appellants were handed over official rifles by the complainant, which they did not return and instead they produced fake rifles, which fact has been affirmed by the chemical examiner and Armourer respectively, as such, there is no illegality or infirmity, which may warrant interference by this Court in the impugned judgments. As far as registration of the case and its investigation by local police is concerned, he referred to Section 4 of Pakistan Criminal Law Amendment Act, 1958, which, according to him, provides that the ordinary police is also competent to register and investigate the case in respect of scheduled offences and upon completion of investigation the Court concerned was competent to take cognizance of the case.

17. Before discussing the merits of the case, it seems appropriate to first deal with the legal objection raised by the appellants. counsel with regard to the investigation conducted by local / ordinary police of PS New Foujdari, Shikarpur in respect of the offence under section 409, P.P.C., being a scheduled offence.

18. According to learned Additional P.G., Section 4 of Pakistan Criminal Law Amendment Act, 1958, provides that the ordinary police is also competent to register and investigate the case in respect of scheduled offenses and upon completion of investigation the Court concerned is competent to take cognizance of the case. I am of the firm view that the assertion made by learned Additional P.G. is totally devoid of force / weight, in view of the well-settled principle enunciated by the Superior Courts in this regard from time to time.

19. In this context, it would be advantageous to refer at this juncture certain judgments pronounced by the Superior Courts.

20. In the case reported as Jalees Ahmad and 21 others v. Special Judge, Anti-Corruption, D.G. KHAN and 9 others (2015 PCr.LJ 379 [Lahore]), while dealing with this legal point, Lahore High Court held as under:-

"10. So far as the other aspect of the case is concerned i.e. direction to the S.P. (Investigation), D.G. Khan to conduct investigation and to file report seems to be in excess of jurisdiction exercised by the respondent No.1.

1. The impugned order reveals that the learned respondent No.1 has exercised this power under section 5(6) of the Pakistan Criminal Law Amendment Act, 1958. Same is being reproduced herein under:--

"5(6) for the purpose of trial before a Special Judge, the provisions of Chapter XVIII of the Code of Criminal Procedure, 1898 shall not be applicable, but a Special Judge may, in any case where he deems it necessary, order an investigation by any police officer in whose jurisdiction the offence was wholly or partly committed."

1. I am afraid that the said provision of law has been wrongly interpreted by the respondent No.1. Section 5(6) of the Amendment Act, 1958 provides that the Special Judge may order the investigation by any police officer in whose jurisdiction the offence was wholly or partly committed. The object of the Legislature in respect of the said provision of law is very clear. In the instant case, since case FIR was got registered by the Anti-Corruption Establishment, D.G. Khan Division at Muzaffargarh. The learned respondent No.1 could have ordered an officer of the Anti-Corruption Establishment to inquire the case afresh and not the ordinary Punjab Police. The jurisdiction and powers of Punjab police have been contemplated in the Police Order, 2002. According to section 18 of the Police Order, 2002 a mechanism has been provided for the transfer of investigation from one police officer to another and that too after the recommendations of a duly constituted Standing Board. Reliance is placed on the case of "Dr. Ishtiaq Hussain and another v. Special Judge, Anti-Corruption (Provincial), Rawalpindi Division, Rawalpindi and 3 others" (2004 YLR 716). The relevant part of the judgment is reproduced herein under:--

"It is important to mention that it is cordial principle of administration of justice that when law prescribes a particular manner and procedure in which things are required to be done the same must be done in that way and not otherwise at all. From the reading of provision of Anti-Corruption Ordinance, rules framed thereunder in 1985 of the survey of case law, would clinch the issue that the local police has neither jurisdiction nor the powers to investigate the case in respect of the scheduled offences committed by the public servants."

13. There is no cavil with the proposition that under the Pakistan Criminal Law Amendment Act, 1958 certain powers have been conferred upon the learned Special Judges in terms of section 5(6) of the law ibid. The respondent No.1 has failed to interpret the provisions of section 5(6) of the Act, 1958 and has wrongly ordered the S.P. (Investigation), D.G. Khan to investigate the case arising out of the provisions of the Punjab Anti-Corruption Establishment Rules, 1985 framed under section 6 of the Anti-Corruption Ordinance, 1961.

1. As held in the above said judgment, the local police neither has the jurisdiction nor the powers to investigate the case in respect of the schedule offences punishable under the Anti-Corruption Ordinance, 1961.

15. Moreover, according to the provisions of the Police Order, 2002 an altogether different mechanism has been provided to conduct and regulate a criminal investigation. A police officer can only investigate a criminal case after resorting to the provisions of the said Order and not by any other law. The impugned order dated 16-5-2013 passed by the learned respondent No. 1 is against the spirit of provision of section 5(6) of the Pakistan Criminal Law Amendment Act, 1958, the Anti-Corruption Ordinance, 1961, the Punjab Anti-Corruption Rules, 1958 and the Police Order, 2002. In the wake of these provisions of law the impugned order cannot sustain.

1. For what has been discussed above, it is declared that the learned Special Judge Anti-Corruption, D.G. Khan Division at Muzaffargarh while invoking provision of section 5(6) of the Pakistan Criminal Law Amendment Act, 1958 has wrongly exercised jurisdiction while ordering that investigation be conducted by the local/ordinary police, in a case which squarely falls within the ambit of Anti-Corruption Establishment. The impugned order dated 16-5-2013 is hereby set-aside to the extent of orders passed by respondent No.1 to the Superintendent of Police (Investigation), D.G. Khan to conduct investigation into the crime arising out of FIR No.7 dated 19-10-2010 under section 409, P.P.C. and sections 5(2)/47, P.C.A. registered at Police Station Anti-Corruption Establishment, Muzaffargarh."

2. In the case of Mohammad Afzal v. The State, reported in PLD 2000 Supreme Court 816, learned Apex Court held as under:

"The record reveals that though C.LA. personnel knew it very well that they were not empowered to investigate this matter, yet, they had done so and in this way deliberately violated the provisions of section 156, Cr.P.C. Although they had prior information about the offence which was likely to be committed, yet, they had not passed on this information to the concerned police and took upon themselves the task of investigation which, we feel, was not proper. What they had done was in violation of law and was also against the principle of supremacy of law."

1. Yet in another case reported as Muhammad Zaman v. Additional Sessions Judge and others, reported in 2023 PCr.LJ 834 [Lahore (Multan Bench)], it was held by Lahore High Court as under:

"Therefore, police was not authorized to seize non-custom paid vehicle; The Honourable Peshawar High Court has held in case reported as "Additional Director, Intelligence and Investigation v. Banaras Khan" (2013 PTD 1988) [Peshawar High Court] as follows:-

1. The police personnel who seized the vehicles in question, were not authorized officer under the Custom Act, and they were never conferred with such power of seizer, in case when there was no tempering of chassis etc. since then all the further proceeding conducted in consequence thereof in regard to illegal seizure falls to ground and the vehicles shall not be out rightly confiscated in the shield of S.R.O. 499(I)/2009.

In the same judgment further reliance was upon an earlier decided case in the context of this query, which the court has referred as under:-

18. This proposition has been already settled by the learned Tribunal Karachi Bench, Karachi in case of Sheikh Nazir Ali v. Customs Central and Excise and others (PTCL 2002 CL 340) and thereafter consistently followed by courts of the country in this regard. This court in an unreported case of "Additional Director Intelligence and Investigation, Peshawar v. Sartaj Khan" [T.R. 5-P/20120] decided on 5-6-2012 has held similar view as:--

"It was also held that under the relevant provision of Customs Act, 1969, the police have no power to take into possession of the said vehicle."

1. In view of above legal position, it can safely be held that in instant case the investigation carried out by the police of P.S. New Foujdari, Shikarpur was not warranted under the law and, in fact, the same should have been conducted by the police of Anti-Corruption Establishment.

2. Now I advert to the merits of the case. It seems that in the case relating to Cr. Appeal No.S-23 of 2017, the FIR was registered after a delay of about more than two years as, according to the complainant ASI Gulzar Ahmed, on 19.7.2008 he had issued and handed over G-3 Rifle bearing No.89346, with five magazines and 100 bullets of G-3 to accused / appellant PC Veeram Khan Luhar for performing his official duty who remained absent from his duty from 27.7.2008 and did not deposit the Arm and Ammunition, therefore, such report was sent to the high-ups and on 01.9.2009 the accused appeared and brought the rifle etc. in presence of PC Dilshad and PC Taimur. On checking, it was found that the Rifle was not with same number and that it was a fake rifle. However, FIR was lodged on 18.6.2011. No explanation has been furnished by the prosecution as to why FIR was not registered when the rifle and magazines etc. were not deposited by the accused/appellant on the day when the same were to be deposited under the relevant procedure / practice and even on the day when the accused / appellant had brought and produced a fake rifle etc. before the complainant. In the circumstances, apparently, in the case of appellant Veeram Khan FIR was registered after an inordinate delay of more than two years. Same is the position in other case relating to appellant Abdul Rahman, wherein the delay is even for a longer period i.e. about seven years, as the Arms and Ammunition were issued to this accused on 31.01.2004. No explanation, at all, has been furnished by the prosecution for such a long delay in both the cases. Needless to emphasize that unexplained delay in lodging the FIR creates doubts about the involvement of actual culprits as the probability of manipulation in such circumstances cannot be ruled out. On the point of delay in lodging FIR, reference may be made to a judgment pronounced by Hon'ble Supreme Court in the case of Ayub Masih v. The State, reported in PLD 2002 SC 1048, held as under:

"The unexplained delay in lodging the FIR coupled with the presence of the elders of the area at the time of recording of FIR leads to the inescapable conclusion that the FIR was recorded after consultation and deliberation. The possibility of fabrication of a story and false implication thus cannot be excluded altogether. Unexplained inordinate delay in lodging the FIR is an intriguing circumstance which tarnishes the authenticity of the FIR, casts a cloud of doubt on the entire prosecution case and is to be taken into consideration while evaluating the prosecution evidence. It is true that unexplained delay in lodging the FIR is not fatal by itself and is immaterial when the prosecution evidence is strong enough to sustain conviction but it becomes significant where the prosecution evidence and other circumstances of the case tend to tilt the balance in favour of the accused."

26. In the case reported as Sabir Hussain v. The State (2022 YLR 173), it was held as under:

"9. The complainant has knowledge about missing of the deceased on 13.07.2019, but despite that, the complainant did not lodge the report, and he lodged the report on 16.07.2019 at 10:30 a.m. Nothing came on record about lodgment of the report of missing of the deceased by the complainant in Levies Thana. It has also come on record that the dead body of the deceased was recovered from the water bank of the Madrasa on 16.07.2019 at 6:30 a.m., and the FIR was lodged on the same date at 10:30 a.m., with a delay of four hours from the recovery of dead body of the deceased. The lodgment of the FIR with delay by the complainant creates a reasonable doubt in the prosecution case. Reliance in this behalf is placed on the case of Mehmood Ahmed and 3 others v. The State and another (1995 SCMR 127)."

1. From scrutiny of the evidence of prosecution witnesses, it seems that they have made certain material admissions from which discrepancies / lacunas emerge in the investigation / prosecution case, which create serious doubts, therefore, benefit whereof is to be extended in favour of the accused as a matter of right.

2. In case of appellant Veeram Khan (Criminal Appeal No.S-23 of 2017), complainant namely ASI Gulzar Ahmed has admitted in his cross-examination that the rifle produced by the accused was kept with WHC Abdul Ghafoor Dayo of P.S New Foujdari as "Amanat" FIR was lodged with the delay of about fifteen months. As far as the admission that accused produced rifle before him bearing No.90123 is concerned, it was taken by him to DSP Headquarter, Shikarpur along with the accused; however, this fact was not stated in the FIR nor he deposed in his examination-in-chief. He further admitted that the rifle bearing No.90737 allegedly produced by P.C Abdul Rehman was also taken by him to DSP Headquarter and PC Dilshad as well as PC Taimour were its attesting mashirs/witnesses, who are subordinates to him. He further admitted in his cross-examination that the then DSP Headquarter in his enquiry report mentioned that; WHC Abdul Ghafoor Dayo was responsible for misappropriation and changing of the rifle which was produced by the accused… No receipt was issued by WHC Abdul Ghafoor Dayo as at the time of depositing rifle with him even no entry in respect of depositing of rifle was made by ASI Abdul Ghafoor Dayo in daily diary of the police station on the pretext that SHO was not available and it will be recorded after arrival of the SHO. He further admitted that no mashirnama was prepared by him regarding production of fake rifle by the accused before him, even he did not remember as to whether the rifle allegedly produced by the accused was got checked by him through Armourer. PW/PC Dilshad in his cross-examination admitted that he do not know whether the rifle bearing No.90123 produced in the Court, was the same and was produced by the accused. He as well as PC Taimour being subordinates to ASI Gulzar Ahmed were made witnesses / mashirs of the case; however, no mashirnama of recovery of the rifle was prepared by ASI Gulzar Ahmed. The rifle so produced by the accused was got checked through Armourer by ASI Gulzar Ahmed. He might had obtained such certificate from the Armourer; however, accused with fake rifle then taken by ASI Gulzar Ahmed to DSP Headquarter; however, all above has not been stated by him in his 161, Cr.P.C statement. He further admitted that no certificate was issued nor any entry was kept in Roznamcha by WHC Abdul Ghafoor Dayo. PC/HC Nazeer in his examination-in-chief deposed on 18.06.2011 that he was posted at P.S New Foujdari as WHC and at about 1800 hours ASI/Kot Incharge came along with a letter issued by the then SSP and disclosed that rifle had been stolen from the Kot, therefore, he registered the FIR. In his cross-examination, he admitted that ASI came with a letter of DPO with directions to lodge the FIR, but no such facts were incorporated in the FIR even said letter was not produced or exhibited in this case. He further admitted that the offence had allegedly occurred in the year 2009 and the FIR was registered in the year 2011. As far as entry as well as receipt with regard to keeping rifle as "amanat" was also not produced before him. PW/ASI Abdul Ghafoor had admitted in his cross-examination that G-3 rifle produced by Gulzar Ahmed was not sealed and no mashirnama was prepared at that time. He further admitted that ASI Gulzar Ahmed was the Kot Incharge and he was not expert; however, his duty was only to issue and receive the arms and ammunitions. He had admitted that rifle issued to PC Abdul Rehman / appellant, produced by ASI Gulzar Ahmed was not in sealed condition and ASI Gulzar Ahmed taken back the rifle with him unofficially even no entry was made nor he signed any receipt. He further admitted that DSP Headquarter had conducted the inquiry regarding missing of the rifle. PW Inspector / SHO Ali Mohammad in his cross-examination admitted that he had not sent G-3 rifle to the expert nor he had gone through the opinion of the expert. He further admitted that said rifle was not sealed nor its mashirnama was prepared by ASI Gulzar Ahmed. At the time of inquiry, the case was not registered against the accused. He further admitted that incident had occurred in the year 2001 and the FIR was lodged on 18.11.2006. He further admitted that accused being Government official and the offence with which he was charged, was a scheduled offence, therefore, case should have been registered with Anti-Corruption Police regarding misappropriation. PW/ASI Mehrab Ali in his cross-examination had admitted that WHC Abdul Ghafoor had handed over the rifle to him which was not in sealed condition even no certificate of the Armourer was given to him. He was not in position to disclose the entry number nor produced the same while producing G-3 rifle before the I.O. PW/ PC Toufique Ahmed in his cross-examination admitted that the rifle as well as bullets were not sealed prior to production to ASI Rab Dino; besides, the police station is situated in heart of the city where houses and shops are around the P.S as well as main road and traffic was plying thereon but the ASI did not ask any person to act as mashir. Though ASI had prepared mashirnama at Malkhana of the property G-3 rifle, he was not expert to recognize it to be genuine or otherwise. PW/PC Aijaz Ali in his cross-examination had admitted that he had not produced expert opinion and the letter wrote to DPO was not attested. He admitted that rifle was produced by WHC Abdul Ghafoor and the same was deposited by the present accused as "amanat" He did not know in respect of any entry in the Roznamcha.

3. Likewise, in the case of appellant Abdul Rahman (Criminal Appeal No.S-24 of 2017) too, prosecution witnesses have made certain material admissions which go in favour of the accused. Complainant, ASI Gulzar Ahmed in his cross-examination admitted that P.S Anti-Corruption is situated just adjacent to the office of DPO, Shikarpur. The offence is punishable under Section 409, P.P.C. and being scheduled one is cognizable offence. He was directed by DPO Shikarpur to lodge the FIR at P.S Foujdari which he did. No mashirnama was prepared by him when the present accused produced fake G-3 rifle. The incident allegedly occurred on 03.04.2006 while the FIR was registered on 18.06.2011. G-3 rifle produced by the accused was kept with WHC Abdul Ghafoor Dayo as "amanat" but no receipt was obtained from him as the same would be issued after arrival of his SHO. PW/PC Dilshad in his cross-examination admitted that no private person was called by the I.O to act as mashir. The Armourer was available there at the time of production of rifle by the accused, which was sent to him for verification, he on verification issued such certificate within 1/2 days and no mashirnama was prepared by ASI Gulzar Ahmed when rifle was produced by the present accused. Fake rifle was produced by the present accused and such report was made by ASI Gulzar Ahmed and submitted with the high ups, probably to Line Officer or DSP. The enquiry in respect of production of fake rifle by the present accused was conducted by DSP, Headquarter Shikarpur. PW/PC Manthar Ali, who was posted at the relevant time as Armourer, deposed in his cross-examination that property viz. rifle is G-3 and is in working condition. The certificate Ex.6-D was issued by him; however, his name was not placed in the charge-sheet as prosecution witness nor was he examined by the I.O during investigation; besides, he admitted that he was not a qualified ballistic expert and he had not checked the bullets. The rifle produced before him by the Kot incharge was not in sealed condition and he had not made any entry in the Roznamcha regarding checking of the weapon nor produced the same in this case. ASI Gulzar Ahmed had not produced any mashirnama of the weapon even it was not specifically mentioned in the mashirnama from whom the rifle was seized. PW/ASI Mehrab Ali in his cross-examination admitted that WHC Abdul Ghafoor had handed over the instant rifle to him which was not in sealed condition at the time of its handing over and no such certificate of the expert/Armourer was given to him even he did not know the number of entry nor produced the same while producing G-3 rifle before the I.O. P.W/PC Toufique Ahmed admitted in his cross-examination that rifle and the bullets were not sealed prior to production to ASI Rab Dino. The police station is situated in the heart of the city where many people used to remain available; however, no person was available there. ASI did not ask any person to act as mashir and ASI had prepared the mashirnama at Malkhana though he had admitted that property is G-3 rifle; however, he was not expert in respect of its genuineness. PW/ Inspector Ali Mohammad in his cross-examination admitted that he had not sent G-3 rifle to expert and it was not in sealed condition nor its mashirnama was prepared by ASI Gulzar Ahmed. At the time of enquiry, the case was not registered against the accused. According to FIR, incident had occurred in the year 2011. According to record produced by ASI Gulzar Ahmed, the rifle bearing No.90737 was issued to the PC Abdul Rehman. He did not remember whether the Kot incharge shown him receiving receipt of the accused at the time of enquiry.

4. From perusal of the evidence adduced by the prosecution as well as discrepancies and admissions/lacunas left by the prosecution itself, the prosecution itself had dented its own case by not following the practice, procedure and the law. Moreover, alleged rifles were not sealed at the time of their recovery nor such memos. were adduced in evidence at the time of trial. Due to such discrepancies and faults on the part of prosecution, evidentiary value of the prosecution witnesses has been vitiated by the prosecution itself which creates a lot of doubts into its veracity, thus, by following the dictum laid down by the Apex Court in its numerous esteemed judgments, benefit of doubt ever goes to favour the accused. It further seems that PW Taimoor Ali was the mashir of recovery in both the cases; however, he was given up and was not examined by the prosecution. Likewise, PW Abdul Ghafoor who, according to the complainant, was handed over the Arm and Ammunition to be kept as "amanat" was also given up in the case of appellant Abdul Rahman. In this view of the matter, in the light of Article 129(g) of the Qanun-e- Shahadat Order, 1984, strong inference / presumption could be gathered that had the said witnesses been examined, they would not have supported the case of prosecution.

5. In this connection, reference may be made to a dictum laid down by Honourable Supreme Court in the case of Abdul Ghani v. The State reported in 2022 SCMR 2121, wherein a Full Bench of Honourable Supreme Court held as under:

"Thereafter, according to Noor Ullah Khan, S.I. (PW-4) on 08.06.2011 he sent the sample parcels to the office of Chemical Examiner but according to the report of Chemical Examiner the sample parcels were delivered there by one Head Constable No. 25 on 10.06.2011 but the said Head Constable was not produced by the prosecution during the trial. The learned State Counsel could not explain as to why the said Head Constable was not produced to confirm the safe transmission of the sample parcels to the office of Chemical Examiner so an adverse presumption under Article 129(g) of the Qanun-e-Shahadat Order, 1984 can be drawn against that person that he is not supporting the prosecution case."

1. It is also noteworthy that in the case of appellant Veeram Khan, report of Chemical Examiner was issued in the year 2011. In fact, the rifle and magazines etc. were brought and produced by the accused Veeram Khan before the complainant on 01.9.2009, whereas report of the ballistic expert was issued on 01.7.2011 i.e. after a delay of 22 months, hence no sanctity could be attached to said report.

2. In this connection, reference may be made to a recent decision of this Court rendered in the case of Gullab alias Aro v. The State, reported in 2023 PCr.LJ 958, wherein it was held as under:

"The weapon was sent to the Ballistic Expert through PC Muhammad Hussain but said Muhammad Hussain has also not been examined by the prosecution. Safe custody and safe transmission of the weapon to the Ballistic Expert have not been established at the trial. Moreso, there was 09 days delay in sending weapon to the Ballistic Expert. The weapon was recovered from the accused on 24.11.2018 but it was received by the ballistic expert on 03.12.2018. Prosecution has failed to explain such delay. Accused has claimed false implication in this case. In these circumstances, it would be unsafe to rely upon the evidence of the police officials without independent corroboration which is lacking in this case."

1. In the case of Amanullah v. The State, reported in 2022 YLR 1681, this Court held that positive forensic science laboratory report qua the crime empties and weapons being delayed without furnishing any plausible explanation , would not advance the prosecution case.

2. In other case relating to appellant Abdul Rahman, the Rifle allegedly brought and produced by the accused before the complainant, was not even sent to the ballistic expert. In fact, according to the complainant himself, it was sent for verification to the Armourer namely, PW Manthar Ali who, as stated above, has categorically admitted in his cross-examination that he is not a qualified ballistic expert, despite that he issued the certificate Ex.6-D. He also admitted that neither his name was mentioned in the charge sheet as a witness, nor his statement was recorded during the investigation by the I.O. According to him, the Rifle was not sealed at the time when the same was produced before him, and that he did not make any entry in the roznamcha regarding the checking of weapons, nor produced the same before the trial Court. He also admitted that he had remained with ASI Gulzar in order to assist him.

3. In view of above, the certificate issued by this witness in respect of the rifle allegedly deposited by accused Abdul Rehman is also of no evidentiary value.

4. Apart from above, there also seems to be violation of Section 103, Cr.P.C. as no private person was associated as mashir, although it has categorically been admitted by prosecution witnesses that private persons were available at the relevant time. PW Dilshad admitted in his cross-examination, "No private person was called to act as mashir." In other case, he admitted, "No private person was called by the Investigating Officer to act as mashir in this case."

5. Besides, PW WHC Abdul Ghafoor in his cross-examination admitted that alleged G-3 rifle produced by Gulzar was not sealed and no mashirnama was prepared at that time in respect of rifle bearing No.89346 to be G-3 rifle. He admitted as under:

"It is correct to suggest that the Rifle G-3 produced by the Gulzar Ahmed was not sealed and no mashirnama was prepared at that time."

1. Likewise, P.W. Manthar also made similar admission. According to him, "The Rifle was not sealed at that time…..Gulzar had not produced any mashirnama of the weapon." This also creates doubt in the prosecution case.

2. It is also astonishing, rather fantastic on the part of the prosecution that although in the case of appellant Abdul Rehman the alleged offence relate to the year 2004 whereas in other case the alleged incident pertains to the year 2008, despite that the FIRs in both the cases were registered on one and same day in the year 2011. It is not understandable that what was the fun in not taking any action in respect of the former case which allegedly took place in the year 2004 and then registering the FIR in said case along with the latter case simultaneously. This gives strength to the plea raised on behalf of the accused/appellants that the rifles were changed by other police officials/prosecution witnesses. Besides, admittedly a departmental enquiry was also conducted in respect of alleged offence, but neither any enquiry report has been produced during course of evidence, nor the enquiry officer who allegedly conducted the enquiry was examined by the prosecution. This also puts a dent in the prosecution case.

3. It is well-settled principle of law that the prosecution is bound under the law to prove its case against the accused beyond any shadow of reasonable doubt. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt, and any doubt arising in the prosecution case must be resolved in favour of the accused. In instant cases prosecution does not seem to have proved the allegations against the accused/appellants by producing unimpeachable evidence, thus doubts have been created in the prosecution version. In the case reported as Wazir Mohammad v. The State (1992 SCMR 1134) it was held by Honourable Supreme Court as under:

"In the criminal trial whereas it is the duty of the prosecution to prove its case against the accused to the hilt, but no such duty is cast upon the accused, he has only to create doubt in the case of the prosecution."

1. In another case reported as Shamoon alias Shamma v. The State (1995 SCMR 1377) it was held by Honourable Supreme Court as under:

"The prosecution must prove its case against the accused beyond reasonable doubts irrespective of any plea raised by the accused in his defence. Failure of prosecution to prove the case against the accused, entitles the accused to an acquittal."

1. Since, the prosecution had alleged that appellants had misappropriated the official weapons viz. the rifles but said charge had not been established by the prosecution through its evidence. In case of Veerum Khan, WHC Ali Ghafoor stated and admitted in his cross that alleged G-3 rifle produced by ASI Gulzar Ahmed was not in sealed condition nor its mashirnama was prepared at the time of its recovery. Moreover, one of the PWs namely Nazir Hussain had stated in clear terms before the trial Court that on 18.06.2011 ASI/Kot Incharge came along with a letter issued by the then SSP, and disclosed that the rifle had been stolen away from the Kot. Most of the witnesses denied to have witnessed the incident; besides, the laboratory report was also issued in the year 2011 viz. two years after the incident. Though per prosecution case, appellants allegedly had produced alleged rifles before the concerned yet no such entry was kept by the WHC nor any memo. of its recovery was prepared. Even the officer before whom, the appellants had allegedly produced the rifles, did not issue any receipt or acknowledgement duly signed / verified by the appellants over the memo/register or any document; hence, it cannot safely be said that the appellants had produced alleged rifles as per claim of the prosecution. Even at the time of producing of rifles before the concerned, no other witness was available or arranged to witness the recovery proceedings from the appellants; hence, in such a situation, question of misappropriation as defined under Section 409, P.P.C. was not established by the prosecution.

2024 Y L R 2376

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi and Amjad Ali Sahito, JJ

Inayatullah Pathan---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. D-43 of 2021, decided on 15th November, 2022.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Recovery of narcotic substance proved---Prosecution case was that 40-kilograms charas was recovered from the vehicle driven by the accused---Complainant narrated the whole case of the prosecution as mentioned in the FIR---Complainant produced arrival and departure entries which showed the movement of the Police Officials---Complainant produced the case property viz. car and running certificate of recovered car---Complainant produced all certain relevant documents pertaining to the case, as such, the accused having prior knowledge had been found responsible for transporting huge quantity of charas in a sack carried by him through a car---To support the version of the complainant the prosecution examined the mashir of recovery and arrest---Said witness had almost repeated the same story and supported the version of the complainant---Said witness had denied the suggestion that due to non-payment of a bribe he falsely implicated the accused in the case---Lastly, the prosecution examined the Investigating Officer of the case, who had supported the prosecution version---Investigating Officer had recorded the statements of the prosecution witnesses under S.161, Cr.P.C.---Said witness had produced Chemical Examiner Report which was in positive and he had also produced other relevant documents---In the present case, no case of vexatious presentation was proved as the present appellant/ accused was arrested with the recovery of a sack carried by him containing 40-kilograms of Charas---Circumstances established that the prosecution had successfully established the guilt against accused beyond the shadow of any reasonable doubt---Appeal being devoid of merits was dismissed accordingly.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Safe custody and safe transmission of charas to the Chemical Examiner proved---Prosecution case was that 40-kilograms charas was recovered from the vehicle driven by the accused---Prosecution examined Police Constable to prove the safe transmission of recovered charas to the office of the Chemical Examiner---Said witness deposed that on 05.04.2021 IO handed over the case property viz. charas along with road certificate to him for depositing the same with the office of Chemical Laboratory for test and report---Same was deposited by him and returned to Police Station and handed over Road Certificate to the Investigating Officer---Statement of said witness was recorded under S.161, Cr.P.C., by the Investigating Officer---Said witness had produced road certificate, departure entry and arrival entry---In the cross-examination of witnesses, no 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---Further, the prosecution examined Police Constable through whom the case property was sent to the office of the Chemical Examiner and the Examiner confirmed that the property was received in sealed condition---In cross-examination Police Constable admitted that the case property viz charas was in sealed condition---Circumstances established that the prosecution had successfully established the guilt against accused beyond the shadow of any reasonable doubt---Appeal being devoid of merits was dismissed accordingly.

2021 SCMR 492; 2021 SCMR 380 and 2022 SCMR 1641 ref.

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) & 21---Criminal Procedure Code (V of 1898), S.54---Police Rules, 1934, R.26.1---Possession of narcotic substance---Appreciation of evidence---Recovery of narcotic substance not made by Gazetted Officer---Inconsequential---Power of police to arrest without a warrant---Prosecution case was that 40-kilograms charas was recovered from the vehicle driven by the accused---No doubt, the law required that an officer not below the rank of Sub-Inspector could arrest, enter into a building, place premises or conveyance but there was also no binding effect prescribed in the law that an officer below the rank of Sub-Inspector could not arrest drug peddlers transporting narcotic substances---Contention of defence to the effect that an officer not below the rank of Sub-Inspector could attest the recovery proceedings was unconvincing---In the present case, the complainant being ASI in police while on patrolling along with other Police Officials received spy information at about 02.30 pm about a car containing charas---Police Officials started their checking at about 03.00 pm and intercepted the car and recovered huge quantity (40 K.Gs) of Charas from the car driven by the accused---Entire episode was completed within thirty minutes---Preamble of 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 can be dispensed with in a case where a quick action is required to be taken and it would be difficult to obtain a search warrant or call the Sub-Inspector where due to paucity of time there is apprehension of narcotics removal or culprits having the chance to escape from the place of incident---Under the provision of first clause of S.54, Cr.P.C, the Police Officer can arrest a person in four conditions, (i) the accused is involved in cognizable offence, (ii) against the accused a reasonable complaint has been made for the said offence, (iii) a credible information is received by the Police Officer that he is involved in a cognizable offence, and (iv) reasonable suspicion exists that the said person is involved in the cognizable offence---Object of S.54, Cr.P.C. is to give the widest powers to the Police Officers to arrest the persons who are involved in cognizable cases and only limitation placed upon their power is the necessary requirement of reasonability and credibility to prevent the misuse of powers by the Police Officers---Rule 26.1 the Police Rules, 1934, (General Power of Arrest) empowers the Police Officials to arrest without warrant any person who has been involved in any cognizable offence---Even the provision of Ss.20 to 22 of the C.N.S. Act being directory in nature, non-compliance thereof will not be a ground for holding the trial/conviction bad in the eyes of law---On such ground, the conviction of the appellant could not be set aside---Circumstances established that the prosecution had successfully established the guilt against accused beyond the shadow of any reasonable doubt---Appeal being devoid of merits was dismissed accordingly.

Zafar v. The State 2008 SCMR 1254 rel.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Police Officials as witnesses---Prosecution case was that 40-kilograms charas was recovered from the vehicle driven by the accused---Police Officials are competent like other witnesses and their evidence cannot be brushed aside merely on the pretext that they are Police Officials---In this case, Police Officials had furnished straightforward 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 Police Officials would plant or foist such a huge quantity (40-kilograms) of narcotic substance against the present accused through their own resources---Statement of official witness could not be discarded merely for the reason that they were Police Officials---Competence of prosecution witnesses being Police Officials was rightly believed by Trial Court---Moreover, a procedural formality cannot be insisted at the cost of completion of an offence---If an accused is otherwise found connected then mere procedural omission and even allegation of improper conduct of investigation will not help the accused---Even otherwise, mere status of a person as an official will not prejudice the competence of such witness until and unless he is proved to be interested, who has a motive to falsely implicate an accused or has the previous enmity with the person involved---Circumstances established that the prosecution had successfully established the guilt against accused beyond the shadow of any reasonable doubt---Appeal being devoid of merits was dismissed accordingly.

Zaffar v. The State 2008 SCMR 1254; State/ANF v. Muhammad Arshad 2017 SCMR 283; Farooq v. The State 2008 SCMR 970 and Salah-ud-Din v. The State 2010 SCMR 1962 rel.

(e) Criminal trial---

----Conviction---Technicalities---Scope---When the prosecution can prove its case on its salient features then unnecessary technicalities should not be allowed to hamper the very purpose of the law on the subject.

Ghulam Qadir v. The State PLD 2006 SC 61 and Faisal Shahzad v. The State 2022 SCMR 905 rel.

Muhammad Shabir Rajput for Appellant.

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

Date of hearing: 1st November, 2022.

Judgment

Amjad Ali Sahito, J.--- The instant Criminal Jail Appeal is directed against the judgment dated 11.11.2021, passed by learned Additional Sessions Judge-I/MCTC, Jacobabad, in CNS Case No.27/2021(Re. The State v. Inayatullah Sakzai) outcome of FIR bearing Crime No.57/2021, offence under section 9(c) of Control of Narcotic Substances Act, 1997, registered with P.S Saddar, Jacobabad, whereby the present appellant has been convicted for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life with pay fine of Rs.200,000/-(Two Lacs) and in default whereof, to suffer Simple Imprisonment for one year, with the benefit of Section 382-B" Cr.P.C.

1. The case of the prosecution, in brief, is that on 28.03.2021,a police party of P.S Saddar Jacobabad, led by complainant/ASI Ashique Ali Lashari while on patrolling, received spy information on link road Hamal railway crossing near village Asadullah Rind about a white color Car bearing Registration No.BEC-512 coming from Balochistan through Shikarpur carrying Charas by its driver. Acting on it, the complainant reached at the pointed place and at about 1500 hours apprehended the present appellant/accused being driver of the said Car. On search, he noticed a white color sack on rear seat of the said Car, the same on opening was found containing 40 packets of Charas, each containing two slabs, weighing to be 500/500 grams, making a total of 40 K.Gs which was entirely sealed. Besides this, two currency notes of Rs.500/- and a Nokia mobile phone were also secured from the present appellant/accused. Such mashirnama of arrest and recovery was prepared in presence of mashirs PC Badal Khan and PC Qalati Khan. Thereafter, the accused along with recovery was then taken to police station, where the instant case for an offence punishable under section 9(C) of CNS Act, 1997, was registered against him on behalf of the State.

2. On completion of usual investigation, the investigating officer submitted report under section 173 Cr.P.C before the competent Court of law and thereafter the case papers were supplied to the appellant/accused under such receipt.

3. The charge against present appellant/accused was framed as Exh.3, to which he pleaded not guilty and claimed trial.

4. To prove the charge against the present appellant, the prosecution examined P.W-01 Complainant ASI Ashique Ali Lashari at Exh.04, he produced memo. of arrest and recovery, FIR of the present case and departure/arrival entries at Exh.5/A to 5/D respectively.P.W-02 PC Sajid Ali Jakhrani who deposited the case property with Chemical Laboratory at Karachi at Exh.5, he produced Road Certificate and roznamcha entries at Exh.5/A to C respectively. PW-03 Mashir PC Badal Khan Bhangar at Exh.6, he produced memo. of place of vardat at Exh.6/A. PW-04 first I.O/SIP Abdul Rasheed Brohi at Exh.7, produced report of Chemical Examiner at Exh.7/A. PW-05 second I.O/SIP Manzoor Ahmed Domki at Exh.8, he produced an attested copy of serial No.384 of Register No.19 at Exh.8/A. Thereafter, learned State Counsel closed the side of the prosecution vide statement kept on record at Ex.09.

5. The present appellant in his statement recorded in terms of Section 342, Cr.P.C (Exh.10), denied the allegations levelled against him by pleading his innocence, stating therein that he was arrested two days prior to this incident from Tower Jacobabad as suspected Afghani because he was not having his CNIC and the police demanded illegal gratification from him for his release and on his refusal, the police implicated him in this case falsely while real culprits of this case were released, he thus lastly prayed for justice. He, however, neither examined himself on oath in disproof of the charge nor led any evidence in his defence.

6. The learned trial Court after an evaluation of the evidence/material and hearing the counsels for the parties convicted and sentenced the present appellant/accused vide Judgment dated 11.11.2021, which he has assailed before this Court by preferring instant Criminal Appeal through Jail.

7. Per learned counsel, the appellant being innocent has been falsely arraigned in this case; that the alleged Charas has foisted against the present appellant on his failure to grease the palm of police; that the requirement of ingredients of Section 21 of C.N.S Act has not been complied with in letter and spirit; that ASI has arrested the appellant which is violation of section 21 of CNS, Act; that the Chemical Examiner's report is not with protocol of the test, hence it has lost its sanctity in the eye of law; that there are material contradictions in the evidence of the prosecution witnesses; that the safe custody/transmission of Charas to the Chemical Examiner has also not been established; that the evidence of such interested witnesses requires independent corroboration which is also lacking in present case; that the complainant and his witnesses are police officials and no independent person has been cited to witness the recovery proceedings, which was in clear disregard of mandatory provision of Section 103, Cr.P.C. He lastly contended that the prosecution has miserably failed to prove its case against the appellant and thus he is entitled to his acquittal. In support of his contentions, he relied upon the case laws reported as 2021 SCMR-492; 2021 SCMR-380, 2022 SCMR-1641 and unreported judgments of Supreme Court of Pakistan passed in Criminal Appeal No.579/2017 and Criminal Appeal No.230/2022.

8. In rebuttal to the above, learned Addl.P.G while supporting the impugned judgment has contended that the prosecution has success fully proved its case against the present appellant/ accused who was found transporting huge quantity of Charas in a Car; that the police officials had no animosity to foist such a huge quantity of narcotics substance against him of its own, as such, he prayed for dismissal of the instant criminal jail appeal.

9. Heard learned counsel for the parties and perused the entire material made available on record.

10. The careful assessment of the material brought on record reflects that on 28.03.2021, complainant ASI Ashique Ali Lashari along with his subordinates left P.S Saddar under roznamcha entry No.14 at 1400 hours (Ex.4/C) left the police station for patrolling. At about 1430 hours, they received spy information near village Asadullah Rind that one white color Mehran Car No.BEC-512 was coming towards Shikarpur from Balochistan carrying Charas with its driver. On receipt of such information, they reached link road Hamal railway crossing and stopped the said Car and apprehended its driver who on query revealed his identity to be the present appellant/accused. On search, a white colour sack was secured from the rear seat of the said Car which on opening was found containing 40 packets of Charas, each packet having two slabs, weighing to be 500/500 grams, making a total of 40 K.Gs. Thereafter, the present appellant was arrested under a memo. of arrest and recovery which was prepared in presence of mashirs PC Badal Khan and PC Qalati Khan. He has registered FIR against the accused vide entry No.18 at 1630 hours. He produced memo. of arrest and recovery Ex.4-A. He has also produced FIR as Ex.4-B. After the registration of the FIR, the recovered case property and copy of the FIR was handed over to SIP/SHO Manzoor Ahmed for investigation. On the very same day, he/complainant has shown the place of occurrence to the I.O of the case, who prepared a memo of the place of incident in the presence of police officials/mashirs. In cross-examination, the complainant denied "that two days prior to this incident, the accused was arrested by him from tower road Jacobabad as suspected Afghani and he had demanded from him illegal gratification of Rs.200,000/- for his release but he failed to fulfill their requirement, hence he was booked in this case falsely. He also denied that he has released the actual culprit of this case while taking huge amount from him. The complainant produced arrival and departure entries as Exh.4/C4/D, which show the movement of the police officials. The complainant also produces the case property viz. Car and running page of recovered car. He also produced all certain relevant documents pertaining to the case, as such, the appellant having prior knowledge has been found responsible for transporting huge quantity of Charas in a sack carried by him through a Car.

11. The prosecution also examined PC Sajid Ali to prove the safe transmission of recovered charas to the office of the Chemical Examiner. PW-2 PC-Sajid Ali deposed that on 05.04.2021 he was posted as PC at PS Saddar, Jacobabad. On the same day SIP Abdul Rasheed handed over the case property viz. charas along with road certificate No.88 to him for depositing the same with the office of Chemical Laboratory Karachi for test and report. The same was deposited by him and returned to P.S vide entry No.27 and handed over R.O to the SIP. His statement was recorded under Section 161, Cr.P.C. He has produced road certificate as Exh.5/A, departure entry No. 35 as Exh.5/B and arrival entry No.27 as Exh.5/C.

12. To support the version of the complainant the prosecution examined the mashir of recovery and arrest PW-3 PC Babal Khan. Who has all most repeated the same story and supported the version of the complainant. However, he has denied the suggestion that due to non-payment of a bribe he has been falsely implicated in this case. Lastly, the prosecution examined the I.O of the case SIP Abdul Rasheed, who has supported the prosecution version. He has recorded the statements of the prosecution witnesses under section 161, Cr.P.C. He has produced Chemical Examiner report as Ex. 7-A and said the same is in positive. He has also produced other relevant documents.

13. As regards the contention of learned counsel for the appellant that the prosecution has failed to prove safe custody and safe transmission of Charas to the office of the Chemical Examiner. It may be mentioned that in the cross-examination of PWs, no such question has been put by the defence that there was tampering with the case property at Police Station or during its transmission to the Chemical Laboratory. Further, the prosecution examined PC Sajid Ali through whom the case property was sent to the office of the Chemical Examiner and the Examiner confirmed that the property was received in sealed condition. In cross-examination PC/he admits that "The case property viz charas was in sealed condition being sealed in white colour cloth". Reliance is placed on the case of Faisal Shahzad v. The State [2022 SCMR 905] and Ajab Khan v. The State (2022 SCMR 317).

14. The requirement of Rule 4 of Control of Narcotic Substance (Government Analysis) Rules, 2001 is that the reasonable quantity of samples from the entire narcotic drug, psychotropic substance or the controlled substances seized, shall be drawn on the spot of recovery and dispatched to the office in-charge of nearest Narcotic Testing Laboratory for the test either by insured post or through a special messenger. No question was put by the defence counsel that there was tempering with the case property and it is also confirmed by the Chemical Examiner that one sealed cloth parcel containing white plastic bag contains (40) packets each contains (02) dark brown slabs each wrapped in panni received in his office on 06.04.2021 in a sealed condition by the hand of PC Sajid Ali. Further, Rule 5 of Control of Narcotic Substance (Government Analysis) Rules, 2001 provides a condition that it should be received in the sealed condition in the Laboratory. The incharge officer shall observe full protocol by carefully opening and giving a distinct laboratory number. For that, a separate register shall be maintained. All samples shall be passed to the analyst on the same day and kept in safe custody and examine and record, weight in the test memorandum. He will compare the markings on the test Memorandums with the markings on the packages envelopes and will ensure that he tests the relevant sample. Rule 6 of C.N.S (Government Analysts) Rules, 2001 further provides that on analysis, the result thereof together with full protocols the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-11. Now the question here is whether the report received from the office of the Chemical Examiner is according to Rules 4,5 and 6 of C.N.S (Government Analysts) Rules, 2001 or not. The requirement of R.4 is only that the parcel/envelope should be received in the office of Chemical Examiner in a sealed condition. We have perused the Chemical Examiner's report available as Exh.7/A, and in our humble view it is according to its Rule and the full protocol was observed by the office of Chemical Examiner. It is appropriate to reproduce the report received from the office of Chemical Examiner, which reads as under,-

Gross Weight: 40.000 Kg.

Net Weight: 39.991 Kg.

Protocols Followed: The test analysis protocols are in line with United Nation office on Drug and Crime (UNODC) guidelines of 2009 (See page-2)

Conclusion: The submitted sample is identified to contain Charas.

Physical Appearance: Dark brown slabs.

I.Fast Blue B Salt Test: Positive.

1. The procedural detail is mentioned in the Chemical Examiner's report Exh.7/A about the tests applied do not fall short of "protocol". In an unreported case of Mushtaq Ahmed v. The State and others (Criminal Petition No.370 of 2019) the Hon'ble Supreme Court of Pakistan has held that;

3... Argument that Forensic report sans protocols as mandatorily required in the case of State v. Imam Bakhsh (2018 SCMR 2039), is beside the point and so is a reference to Rule 6 of the Control of Narcotic Substance (Govt. Analysis) Rules, 2001, for the convenience of reference reproduced below:-

"Report of the result of test analysis:- After test or analysis the result thereof together with full protocols of the test applied, shall be signed in quadruplicate and supplied forthwith to the sender as specified in Form-II".

The above requires reference to the test applied for analysis, specifically mentioned in Form-II thereof. We have perused the forensic report, relied upon the prosecution, which substantially meets the legal requirements in the following terms:-

"Test Performed on Received Item(s) of Evidence

1. Analytical Balance was used for weighing.

2. Chemical spot Tests were used for Presumptive Testing.

1. Case Chromatography-Mass Spectrometry was used for confirmation.

Results and conclusions

"Item 01 72.87 gram(s) of blackish brown resinous material in sealed parcel contains Charas"

Details mentioned in the Forensic report procedure/test applied do not short of `protocol' as insisted by this court in the supra case. According to the Oxford English Dictionary, 6th Edition, the expression "protocol" in relation to a forensic test means.

"A formal or official statement of a transaction or proceedings; spec, a record of (esp. scientific) experimental observations".

1. It has been argued before us that the report submitted by the Chemical Examiner did not mention the necessary protocols followed or tests applied but we have seen the said report available on the record of the trial court and have found that the said report not only referred to the protocols adopted but also to the tests applied and, thus, we have not been able to find any deficiency in the said report.

2. The next contention raised by the learned counsel for the appellant on the point that the personal search must be conducted in presence of gazetted officer or magistrate and a full report thereof would be communicated within 48 hours immediately to the superior officer, he further added that in the present case the arrest was made by ASI, which is a violation of Section 21 of CNS Act, on sole this score the appellant is entitled for his acquittal. To this, the proper mechanism has been provided in the Control of Narcotics Substance Act, 1997, whereas Section 21 provides "Power of entry, search, seizure and arrest without warrant". While Section 22 provides "Power to seizure and arrest in public place. At this juncture, it is appropriate to reproduce the relevant section. Section 21 of Control of Narcotics Substance Act is reproduced hereunder;

"(1). Where an officer, not below the rank of Sub-Inspector of Police or equivalent .authorized in this behalf by the Federal Government or Provincial Government, who from his personal knowledge or from information given to him by any person is of opinion that any narcotic, drug, psychotropic substance or controlled substance in respect of which an offence punishable under this Act has been committed is kept or concealed in any building, place, premises or conveyance, and a warrant for arrest or search cannot be obtained against such person without affording him an opportunity for the concealment of evidence or facility for his escape, such officer may...

(a) enter into any such building, place, premises or conveyance.

(b) ....

(c) ....

(d) ....

(2)....

1. No doubt, the law requires that an officer not below the rank of Sub-inspector can arrest, enters into a 'building, place premises or conveyance but there is also no binding effect prescribed in the law that an officer below the rank of Sub-Inspector cannot arrest the drug peddlers, transporting narcotics substance and that such activities nowadays have ruined the lives of youngsters, in that situation, the contention of defence counsel to the effect that an officer not below the rank of Sub-Inspector can attest the recovery proceedings, is found unconvincing. In the present case, the complainant being ASI in police while on patrolling along with other police officials received spy information at about 1430 hours that one Mehran Car No. BEC-512 was coming from Baluchistan and going to Shikarpur. The car driver is having charas with him. They started checking at about 1500 hours intercepted car and recovered huge quantity (40 K.Gs) of Charas in a Car driven by the appellant/accused. The entire episode was completed within thirty minutes. The preamble of Control of Narcotic Substance Act, 1997 as a special law is enacted mainly to curb the menace of narcotics in the country. The requirement to obtain a search warrant can be dispensed with in a case where a quick action is required to be taken and it would be difficult to obtain a search warrant or call the Sub-Inspector where due to paucity of time apprehension of narcotics removed or culprits having the chance to escape from the place of incident. Under the provision of clause first of Section 54, Cr.P.C, the police officer can arrest a person in four conditions, (a) The accused is involved in cognizable offence, (b) Against the accused a reasonable complaint has been made for the said offence, (c) A credible information is received by the police officer that he is involved in a cognizable offence, and (d) Reasonable suspicion exists that the said person is involved in the cognizable offence. The object of Section 54, Cr.P.C is to give the widest powers to the police officers to arrest the persons who are involved in cognizable cases and only limitation placed upon their power is the necessary requirement of reasonability and credibility to prevent the misuse the powers by the police officers. Rule 26.1 the Police Rules, 1934 (General Power of arrest) empowers the police officials to arrest without warrant any person who has been concerned in any cognizable offence. Even the provision of sections 20 to 22 of the C.N.S. Act being the directory, non-compliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot be set aside. The reliance in this context is placed upon case of Zafar v. The State which is reported in (2008 SCMR-1254), wherein the Hon'ble Supreme Court of Pakistan has held that;-

"Even the provision of sections 20 to 22 of C.N.S.A being directory, noncompliance thereof would not be a ground for holding the trial/conviction bad in the eyes of law. On this ground, the conviction of the appellant cannot be set aside. Reference in this behalf can be made to the cases of Fida Jan v. The State 2001 SCMR 36; State through A.G Sindh v. Hemjoo 2003 SCMR 881, Karl John Joseph v. The State PLD 2004 SC 394, and Muhammad Younas v. Mst. Perveen alias Mano and others 2007 SCMR 393, wherein it is observed that where provisions of C.N.S.A are directory in nature, non-compliance of the same is not fatal. Even otherwise no evidence has been produced to establish that the place of recovery and arrest was not within the jurisdiction of the police station concerned."

1. The vice-versa Section 26 of Control of Narcotic Substance Act, 1997, also provides protection to the innocent citizen, whenever any person empowered under section 20 or 21 of CNS, Act without any reasonable grounds of suspicion, enters or searches, or causes to be entered or searched building any building, place, premises or conveyance shall be punished. It is appropriate to reproduce ' the relevant section which reads as under,-

"26. Punishment for vexation entry, search, seizure or arrest.--- Any person empowered under section 20 or 21 who

(a) without reasonable grounds of suspicion, enters or searches, or causes to be entered or searched any building, place, premises or conveyance, or

(b) vexatiously and unnecessarily detains, search or arrest any person shall be punished with imprisonment for a term which may extent to three years and shall also be liable to fine which may extend to twenty-five thousand rupees.

In the present case, no case of vexatious was proved as the present appellant/accused was arrested with the recovery of a sack carried by him containing 40 K.Gs of Charas.

1. Turning to the arguments of learned counsel for the appellant concerning violation of Section 103, Cr.PC, it would be appropriate to refer to Section 25 of the Control of Narcotics Substances Act, 1997, which reads as under;-.

"25. Mode of making searches and arrest.--- The provisions of the Code of Criminal Procedure, 1898, except those of section 103, Cr.P.C shall mutatis mutandis, apply to all searches and arrests in so far as they are not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants issued and arrest searches made under these sections.

1. It means that the applicability of Section 103, Cr.P.C in the narcotics cases has been excluded and the non-inclusion of any private witness is not a serious defect to vitiate the conviction. The complainant in his cross-examination has admitted that "during that time no private person had crossed there-from to act as mashir. Normally people are avoiding to give evidence against drug peddlers due to fear of their lives.

2. So-far the evidence of the police officials is concerned, they are competent as like other witnesses and their evidence cannot be brushed aside merely on the pretext that they are police officials. They have furnished straightforward and confidence-inspiring evidence and nothing has come on record to show that they have deposed against the appellant maliciously or out of any animus and it cannot be believed that the police officials would plant or foist such a huge quantity (40 K.Gs) of narcotics substance against present appellant at their own resources. It is a well-settled principle of law that the statement of official witness cannot be discarded merely for the reason that they are police officials. The reference in this context is made to the case of Zaffar v. The State (2008 SCMR-1254), the Hon'ble Supreme Court of Pakistan has held that,-

"Police employees are the competent witnesses like any other witnesses and their testimonies cannot be discarded merely on the ground that they are police officials"

1. In the instant case, no proof of enmity or ill-will with the complainant or the other witnesses has been brought on the record, thus, in the absence thereof, the competence of prosecution witnesses being police officials was rightly believed by learned trial Court. Moreover, a procedural formality cannot be insisted at the cost of completion of an offence and if an accused is otherwise found connected then mere procedural omission and even allegation of improper conduct of investigation would not help the accused. The reference in this context is made to the case of the State/ANF v. Muhammad Arshad (2017 SCMR-283), wherein the Hon'ble Supreme Court of Pakistan has held that;-

"We may mention here that even where no proper investigation is conducted, but where the material that comes before the Court is sufficient to connect the accused with the commission of crime, the accused can still be convicted, notwithstanding minor omissions that have no bearing on the outcome of the case".

1. Even otherwise, mere status of one as an official would not alone prejudice the competence of such witnesses until and unless he is proved to be interested, who has a motive, to falsely implicate an accused or has the previous enmity with the person involved. The reliance in this context is made to the case of Farooq v. The State (2008 SCMR-970).

2. It is now a settled proposition of law that by the flex 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, the approach of the Court should be dynamic and pragmatic in approaching true facts of the case and drawing correct and rational inferences and conclusions while deciding such type of cases. The Hon'ble Supreme Court of Pakistan in the case of Ghulam Qadir v. The State reported in (PLD 2006 SC-61) has held that;-

"S.9(c) Appreciation of evidence.---No acquittal on technicalities---Court in such like cases are supposed dispose of the matter with dynamic approach, instead of acquitting the drug paddlers on technicalities."

1. Though the complainant and mashir are police officials and they have no enmity or rancor against the appellant to plant such a huge quantity of narcotics substance against him. The defense has not produced any substance to establish animosity qua the prosecution witnesses. In matters of huge quantity of narcotics, the absence of enmity or any valid reason for false involvement would also be circumstances tilting the case against the accused. The reliance is made in the case of Salah-ud-Din v. The State, reported in (2010 SCMR-1962), wherein the Hon'ble Supreme Court of Pakistan has held that;-

"....No enmity whatsoever has been alleged against the prosecution witnesses and there is hardly any possibility for false implication without having any ulterior motives which was never alleged. In view of overwhelming prosecution evidence the defense version has rightly been discarded which otherwise is denial simpliciter and does not appeal to logic and reasons..."

1. It is a trite proposition of law that items recovered from the vehicle in possession of the driver are presumed to be assenting to be in his control and in his knowledge. If the drugs are secured from the possession of an accused then it is normally believed that they have a direct relationship with the drugs and the burden of proof that they did not know the same lies heavily on them. We in this regard would like to refer to a judgment given by the Hon'ble Supreme Court in the case of Muhammad Noor v. The State reported in 2010 SCMR 927, wherein the Hon'ble Court observed as under:

2. As regards Driver of the vehicle, it is important to note that when he is driving the vehicle, he is Incharge of the same, therefore, it would be under his control and possession. Hence, whatever articles lying in it would be under his control and possession. The liability of the driver, in view of provisions of section 27 of P.P.C., has been considered by this Court in the case of Sherzada v. State 1993 SCMR 149, wherein it was observed as under:--

The next point raised by the learned Counsel was that it is provided in section 27, P.P.C. that when property is in the possession of wife, clerk or servant on account of that person, it is in that person's possession within the meaning of this Code. The learned Counsel argued that the appellant was a driver, hence an employee of the owner of the car and even if he is admitted to be in possession of the contraband article on behalf of the owner, he cannot be said to be liable for that possession. But this argument of the learned Counsel is without force on the fact of it because section 27, P.P.C. is confined to the Pakistan Penal Code only, as the words "within the mean of this Code" appearing in that section clearly indicate. This section has not been made applicable to the Prohibition (Enforcement of Hadd) Order, 1979 as is evident from Article 26 of that Order where certain other provisions of the P.P.C. have been made applicable.

This Court in the case of Adil Ahmed v. Deputy Collector, C and CE 1991 SCMR 1951 has observed that in view of provisions of Customs Act, the drivers and owners were both responsible.

In the case of Rab Nawaz v. The State PLD 1984 SC 858, the liability of drivers was again considered and lenient view was taken, as they expressed their ignorance about the contents and claimed to be simple carriers. In the present case the appellant did not claim to be carrier.

This Court in the case of Nadir Khan v. State 1988 SCMR 1899 has observed that knowledge and awareness would be attributed to the Incharge of the Vehicle. The relevant portion reads as under:--

"We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving license also. As being person Incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents".

2024 Y L R 2409

[Sindh]

Before Mohammad Karim Khan Agha, JJ

Muhammad Faizan and another---Appellants

Versus

The State---Respondent

Criminal Appeal No. 651 of 2019, decided on 19th March, 2024.

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

----Ss. 302(b), 302(c) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Lodging FIR with promptitude---Accused were charged for committing murder of their own father for allegedly causing sexual harassment to their sister---Both the accused were named along with their co-accused in the promptly lodged FIR as being at the house where the body of the deceased was recovered along with the churri (murder weapon) and were arrested on the spot---However, prosecution had not proved its case against accused persons under S.302(b), P.P.C rather under S.302(c), P.P.C, as such they were convicted under S.302(c), P.P.C, and each was sentenced to 12 years R.I. in circumstances---Appeals were disposed of with modification in sentence.

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

----Ss. 302(b), 302(c) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Confession, retraction of---Scope---Accused were charged for committing murder of their own father for allegedly causing sexual harassment to their sister---Admittedly, the case was an unseen one which was primarily based on retracted judicial confessions and other circumstantial evidence---Accused were arrested on 14.10.2017 and they made judicial confessions respectively on 19.10.2017---Retracted judicial confession could be relied upon if it was found to be voluntary and was truthful and fitted in with the prosecution case---In the present case, the accused had retracted their judicial confessions claiming that same were not voluntarily made and were made on account of police torture---However, police torture was not mentioned to the Magistrate at the time of their confession---Moreover, there were no marks of torture on their bodies at the time of giving the confession---Neither accused gave evidence on oath in support of such contention---Confession fully fitted in with the prosecution case---Accused persons murdered the deceased with a knife which was also supported by the medical evidence---Confessions were made voluntarily with the object to tell the truth---Record showed that the Magistrate committed no material procedural irregularities in recording the judicial confession---Post mortem report fully supported the prosecution evidence and the confession of the accused persons that the deceased died from stab wounds---However, prosecution had not proved its case against accused persons under S.302(b), P.P.C, rather under S.302(c), P.P.C, as such they were convicted under S.302(c), P.P.C, and each was sentenced to 12 years R.I. in circumstances---Appeals were disposed of with modification in sentence.

Javed Iqbal v. The State 2023 SCMR 139; Malik Waris Khan v. Ishtiaq alias Naga PLD 1986 SC 353; Muhammad Pervaiz v. The State PLD 2019 SC 592; Arshad Mehmood v. The State 2005 SCMR 1524; Saeed Ahmed v. The State 2015 SCMR 710; Jafar Ali v. The State 1998 SCMR 2669; Muhammad Amin v. The State PLD 2006 SC 219 and Akhtar v. The State 2020 SCMR 2020. ref.

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

----Ss. 302(b), 302(c) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Police witnesses, evidence of---Scope---Accused were charged for committing murder of their own father for allegedly causing sexual harassment to their sister---Record showed that there was no ill will or enmity between the police and the accused persons and as such they had no reason to falsely implicate the accused persons in the case---However, the prosecution had not proved its case against accused persons under S.302(b), P.P.C, rather under S.302(c), P.P.C, and as such they were convicted under S.302(c), P.P.C, and each was sentenced to 12 years R.I., in circumstances---Appeals were disposed of with modification in sentence.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 302(b), 302(c) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Minor contradictions in the statements of witnesses---Inconsequential---Accused were charged for committing murder of their own father for allegedly causing sexual harassment of their sister---Witnesses were consistent in their evidence---If there were some contradictions in the evidence of witnesses, same were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the accused persons---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the discovery of the dead body at the house of the accused persons to their arrest on the spot to their judicial confessions to the recovery of the churri from one of the accused persons---However, the prosecution had not proved its case against accused persons under S.302(b), P.P.C, rather under S.302(c), P.P.C, and as such they were convicted under S.302(c), P.P.C, and each was sentenced to 12 years R.I, in circumstances---Appeals were disposed of with modification in sentence.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----Ss. 302(b), 302(c) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Sudden provocation---Conviction converted from S.302(b) P.P.C to S.302(c), P.P.C---Accused were charged for committing murder of their own father for allegedly causing sexual harassment to their sister---Confessions of the accused persons showed that the deceased had a history of sexually abusing female relatives---On the day of occurrence, both the accused persons went to save their sister from being raped by the deceased---When both the accused persons went to rescue their sister from the deceased neither of them was armed and hence there was no premeditation on their part---Rather both the accused persons saved their sister and in doing so one of the accused persons was stabbed by the deceased on his hand which fact was supported by the prosecution evidence and exhibits---Deceased kept on coming at the accused persons with a view to kill them, hence he was stabbed by the other accused to finally stop him---As such, it was a case of sudden provocation falling under S.302(c), P.P.C.---Circumstances established that the prosecution had not proved its case against accused persons under S.302(b) P.P.C rather under S.302(c), P.P.C, and as such they were convicted under S.302 (c) P.P.C and each was sentenced to RI for 12 years---Appeals were disposed of with modification in sentence.

Raza and another v. The State 2020 SCMR 1185 and Alamgir v. Gul Zaman and others 2019 SCMR 1415 rel.

Iftikhar Ahmed Shah for Appellants.

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

Date of hearing: 12th March, 2024.

Judgment

Mohammad Karim Khan Agha, j.---Accused Muhammad Faizan and Muhammad Noman were tried before the Xth Addl. Sessions Judge, Karachi West in Special Case No. 2108/2017 under FIR No. 216/2017 under section 302/34 P.P.C. at PS Sher Shah, Karachi and vide judgment dated 23.09.2019 the accused were conicted and sentenced to R.I. for life. The accused were also fined Rs. 200,000/- each to be paid to the legal heirs of deceased as compensation as provided undedr section 545 Cr.P.C under section subsection (a) and (b). In case of failure to pay the fine, the accused were further to undergo simple imprisonment for six months in addition. The benefit of section 382-B Cr.P.C was also extended to the appellants.

1. The brief facts of the prosecution case as per FIR are that on 14.10.2017 at about 0126 hours, at street No.75, Jinnah Road, Karachi the accused persons namely Muhammad Faizan, Rizwan and Noman with the help of their friend namely Zohaib committed the murder of their real father Shakeel Ahmed by causing Churi injuries due to reason that Shakeel Ahmed was involved in immoral/sexual harassement of their sisters, hence, the insant FIR was lodged.

2. After usual investigation, the case was challaned and the accused persons were sent up for trial where they pleaded not guilty and claimed to be tried.

3. The prosecution in order to prove its case examined 06 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which they denied the allegations levelled against them and stated that they are innocent and have falsely been implicated in this case by the police. However, the accused did not give evidence on oath nor produce any DWs in support of their defence.

4. After hearing the parties and appreciating the evidence on record, the trial court convicted the appellants and sentenced them as set out earlier in this judgment; hence, the appellants have filed this appeal against their conviction.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 23.09.2019 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellants has contended that appellants are innocent; that there is no eye-witness to the murder, that the recovery of the Churri, blood stained earth and blanket was not put to the appellants during their Section 342 Cr.P.C statements and as such cannot be used to convict them; that their confessions before the judicial magistrate were not voluntary and as such could not be relied upon and as such the appellants should be acquitted of the charge by being extended the benefit of the doubt. In the alternative, he contended that it was either a case of self defence which justified the acquittal of the appellants of an offence under section 302(c) P.P.C not section 302(b) P.P.C. In support of his contentions he placed reliance on the cases of Javed Iqbal v. The State (2023 SCMR 139), Malik Waris Khan v. Ishtiaq alias NAGA (PLD 1986 SC 353), Muhammad Pervaiz v. The State (PLD 2019 SC 592), Raza and another v. The State (2020 SCMR 1185) and Alamgir v. Gul Zaman and others (2019 SCMR 1415).

7. Learned APG Sindh on behalf of the State after going through the entire evidence of the prosecution witnesses as well as other record of the case has fully supported the impugned judgment. In particular, he has contended that there was no delay in lodging the FIR; that although there is no eye-witness the appellants retracted judicial confessions can be safely relied as they were made voluntarily with the object to tell the truth and fit in with the prosecution case; that the appellants were arrested on the spot in their own house; that the murder weapon was recovered from the appellant Faizan on the spot at the time of his arrest; that the medical evidence fully supported the prosecution case; that it was not a case of self defence and it was not a case of section 302(c) P.P.C but one of section 302(b) P.P.C and the appeal be dismissed. In support of his contentions, he placed reliance on the cases of Arshad Mehmood v. The State (2005 SCMR 1524), Saeed Ahmed v. The State (2015 SCMR 710), Jafar Ali v. The State (1998 SCMR 2669), Muhammad Amin v. The State (PLD 2006 SC 219) and Akhtar v. The State (2020 SCMR 2020).

8. I have heard the learned counsel for the appellants as well as learned APG and have also perused the material available on record and the case law cited at the bar.

9. Based on my reassessment of the evidence of the PWs and especially the medical evidence I find that the prosecution has proved beyond a reasonable doubt that Shakeel Ahmed (the deceased) was murdered by Churri on 14.10.2017 at 0126 hrs at Street No.75 Jinnah Road, Shershah, Karachi.

10. The only question left before me therefore is who murdered the deceased by Churri at the said time, date and location?

11. After my reassessment of the evidence on record, I find that the prosecution has not proved beyond a reasonable doubt the charge against the appellants under section 302(b) P.P.C but has proved beyond a reasonable doubt the charge against the appellants under section 302(c) P.P.C for which I now convict them both for the following reasons:

(a) That the FIR was lodged with promptitude by the State based on the particular facts and circumstances of the case where after responding to the crime the police found the dead body of the deceased at the house of the accused which the police then sent to hospital for post mortem and thereafter on returning to the PS lodged the FIR.

(b) Both the appellants are named along with their co-accused in the promptly lodged FIR as being at the house where the body of the deceased was recovered along with the Churri (murder weapon) and were arrested on the spot.

(c) Admittedly, the case is an unseen one which is primarily based on retracted judicial confessions and other circumstantial evidence.

(d) The appellants were arrested on 14.10.2017 and made judicial confessions respectively on 19.10.2017 which are set out below for ease of reference;

Section 164 Cr.P.C confession before Magistrate of Muhammad Faizan.

"Question: What have you to say?

My father Shakeel Ahmed (slain) had raped my sister Asma, who now resides in Boraywala, 16 years ago and for this act my mother had got him jailed. Then he got released from the jail after four years and in the meanwhile my mother had married off my sister but my father due to the fact that he raped her kept saying that Asma belongs to me and shall remain mine and 12 years ago also got my brother-in-law killed. Then when my younger sister Uzma grew up, so my father also raped her and when my mother once again got an FIR registered against him so he escaped away and when he lurned up after five years. Now since our youngest sister was growing up whose name is Shumaila and she is 12 years old, she attracted my father's attention. On 14-10-17 an incident occurred at 12.30 hours when my sister Shumaila called from the upper floor that father Shakeel is trying to rape her. After listeing to her calls, my younger brother Noman called me and when we arrived at the spot so father Shakeel was about to tear up Shumaila's clothes. He attacked on me with a knife due to which my right hand got seriously injured. He also punched me in the eye but then I, in order to save myself and Noman, snatched the knife from him and when he was about to hit us by picking up some other thing, I and Noman killed him and when he once again tried to get up to kill us while being injured, Noman stabbed him in the neck due to which he eventually died and his dead body fell into the street. Then ambulance came and took way the dead body. The ambulance had been called by Zohaib and Rizwan. Rizwan is our brother and Zohaib is the contractor. Both have been forcibly implicated in this crime by the police although I and Noman have carried out this murder in the name of honor because our father had a bad character and if we had not stopped him that day, he not only would have raped Shumaila but also would have stabbed us to death. Therefore, have mercy on us." (bold added)

Section 164 Cr.P.C confession bfore Magistrate of Muhammad Nauman.

"Question: What have to say?

Our father Shakeel had been a bad person since the beginning. In 2001 he raped our sister Asma. After that my mother got him sent to jail and after some years, when he got released from the jail so he killed my brother-in-law (Asma's husband) and said she only belonged to him and then he remaind at large for several years. Then he, having resurfaced after seven/eight years, raped another sister Uzma. Then my mother got him confined in our village Akora Khattak. Recently he claimed that he has mended his ways and then he started living with us but he started teasing our youngest sister Shumaila regarding which she had complained us but on the night of 14-10-17 when I went to fetch water from home so my sister Shumaila sought my attention and told me that father Shakeel is trying to rape her and then I immediately called brother Faizan then stopped and controlled father Shakeel but since he was holding a knife, he attacked Faizan with it due to which his right hand started bleeding and also punched him in the eye. After that in order to save his life, brother Faizan snatched away the knife from him and stabbed him in his stomach and when he showed further resistance so I came at the fore and having obtained the knife stabbed it in his neck due to which he eventually died. When Shakeel's dead body fell outside the gate, my brother Rizwan and contractor Zohaib arrived and then they having called the ambulance, put the dead body in it but the police have needlessly arrestd Faizan and Zohaib as myself and Faizan have committed this murder in the name of honor. We killed our father in the name of honor because there was no other way to stop his unethical practices. Therefore, have mercy on us." (bold added)

It is settled by now that even a retracted judicial confession can be relid upon if it is found to be voluntary and is truthful and fits in with the prosecution case. In this respect reliance is placed on the case of Muhammad Amin v. The State (PLD 2006 SC 219). In the instant case the appellants have retracted their judicial confessions claiming that they were not voluntarily made and were made on account of police torture. However this was not informed to the magistrate at the time of their confessions; that there was no marks of torture on their bodies at the time of giving the confession. Neither appellant gave evidence on oath in support of this contention. The confessions fully fit in with the prosecution case. Namely that the appellants murdered the deceased with a knife which is also supported by the medical evidence. As such I find that both the confessions were made voluntarily with the object to tell the truth and fit in with the prosecution case and even virtually corroborate each and as such I believe the confessions and place reliance on them vis a vis each accused.

I also find that the magistrate committed no material procedural irregularities in recording the judicial confessions which I have placed reliance on which can be seen from the evidence of the PW 5 Muhammad Siddique who was the judicial magistrate who recorded separately the confessions of the appellants.

Now we need to consider what other circumstantial/supportive evidence there is to connect the appellants to the offences.

With regard to circumstantial evidence leading to a conviction in a capital case it was held as under in Fayyaz Ahmed v. The State (2017 SCMR 2026).

"To believe or rely on circumstantial evidence, the well settled and deeply entrenched principle is, that it is imperative for the Prosecution to provide all links in chain an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. The present case is of such a nature where many links are missing in the chain. To carry conviction on a capital charge it is essential that courts have to deeply scrutinize the circumstantial evidence because fabricating of such evidence is not uncommon as we have noticed in some cases thus, very minute and narrow examination of the same is necessary to secure the ends of justice and that the Prosecution has to establish the case beyond all reasonable doubts, resting on circumstantial evidence. "Reasonable Doubt" does not mean any doubt but it must be accompanied by such reasons, sufficient to persuade a judicial mind for placing reliance on it. If it is short of such standard, it is better to discard the same so that an innocent person night not be sent to gallows. To draw an inference of guilt from such evidence, the Court has to apply its judicial mind with deep thought and with extra care and caution and wherever there are one or some indications, showing the design of the Prosecution of manufacturing and preparation of a case, the Courts have to show reluctance to believe it unless it is judicially satisfied about the guilt of accused person and the required chain is made out without missing link, otherwise at random reliance on such evidence would result in failure of justice." (bold added)

(e) The appellants lived in the same house as the deceased who they murdered and were arrested on the spot by the police.

(f) That the medical evidence and post mortem report fully support the prosecution evidence and the confession of the appellants that the deceased died from stab wounds.

(g) That there was no ill will or enmity between the police and the appellants and as such they had no reason to falsely implicate the appellants in this case, for instance, by foisting the churri on the appellants. Under these circumstances it is settled by now that the evidence of police witnesses is as good as any other witness. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474). The, I believe the evidence of the police witnesses who were not dented during cross-examination whose evidence of arrest and recovery is supported by the mashir's evidence.

(h) The motive for the murder was that the deceased continually sexually assaulting the women relatives of the appellants as per FIR and confessions.

(i) That all the Pws are consistent in their evidence and even if there are some contradictions in their evidence I consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the coniction of the appellants. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 SC 669). The evidence of the PWs provides a believable corroborated unbroken chain of events from the discovery of the dead body at the house of the appellants to the arrest of the appellants on the spot to the judicial confessions of the appellants to the recovery of the Churri from appellant Faizan.

(j) Having believed the confessions of the appellants in their entirety it is only fair and in the interest of justice to see whether such confessions could lead to any kind of defence or difference offence when considered in a holistic manner. In this respect reliance is placed on the case of Javed Iqbal (supra).

2024 Y L R 2433

[Sindh (Hyderabad Bench)]

Before Shamsuddin Abbasi and Amjad Ali Sahito, JJ

Muhammad Kashif---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. D-152 and Confirmation Case No. D-32 of 2021, decided on 21st February, 2024.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account not proved---Accused were charged for committing murder of the daughter of complainant by inflicting churri blows---Admittedly, there was no ocular evidence available on the record to connect the accused with the commission of offence as the incident was unseen and FIR was lodged on the statement/dying declaration of the deceased when she was found in injured condition by her father---Complainant had disclosed in the FIR that on 19.08.2014 he was present in his house along with his brother-in-lawand received a call from someone, who informed him that his daughter was injured---After receiving such information, he along with his brother-in-law reached at the house of in-laws of his daughter and found his daughter seriously injured and blood oozing from her injuries---Deceased informed complainant that at the instigation of her mother-in-law, her brother-in-law caused knife/churri blows to her---Complainant further disclosed in his evidence as well as in the FIR that he along with his brother-in-law went outside the house to take the vehicle and in the meanwhile the husband of the injured/deceased had taken injured to local Hospital and then to Civil Hospital where she succumbed to the injuries---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---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Confession, retraction of---Scope---Accused were charged for committing murder of the daughter of complainant by inflicting churri blows---Accused was arrested on 21.08.2014 and his confessional statement was recorded on 27.08.2014 with a delay of about six (6) days---Except the confessional statement made by accused there was no other evidence available on record---Later on the accused retracted his confessional statement while recording his S.342 Cr.P.C. statement---Confession alone cannot form the basis of a conviction unless it finds strong corroboration from independent and reliable evidence in material particulars---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 v. Munir alias Gul Hassan PLD 1964 SC 813; Nadir Hussain v. The Crown 1969 SCMR 442; Habib Ullah v. The State 1971 SCMR 341; The State v. Waqar Ahmed 1992 SCMR 950; Abdul Latif v. The State PLJ 1999 SC 264 and Hashim Qasim and others v. The State 2017 SCMR 986 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of the daughter of complainant by inflicting churri blows---Motive set up by the prosecution was a matrimonial quarrel but no material had been brought on the record to believe the same---Complainant in his cross-examination admitted that he had not stated in his examination in chief that his daughter had made complaints against her mother-in-law and her brother-in-law prior to the incident---From the evidence of the complainant, it appeared that after receiving the injuries she/deceased for nearly 40/45 minutes remained alive and thereafter she succumbed to her injuries but as per evidence of Medical Officer, duration between death and injuries was instantaneous---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Inconsequential---Accused were charged for committing murder of the daughter of complainant by inflicting churri, blows---Record showed that a weapon of offence, churri was recovered from the accused---Recovery witness stated that the crime weapon had not been recovered from the accused in his presence---Said witness had produced a memo. of recovery and said that it only bore his signature---Said witness admitted that the case property viz. knife present in the Court and seen by him at the police station had not been recovered from his house---Prosecution declared the witness as hostile and with permission of the Court cross-examined him where he had denied the suggestion that a crime weapon was recovered by police in his presence from their house---Circumstances established that the prosecution had failed to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, common intention---Appreciation of evidence---Confession, recording of---Infirmities---Accused were charged for committing murder of the daughter of complainant by inflicting churri blows---Judicial Magistrate, who recorded the confessional statement of the accused admitted in cross-examination that the accused was remanded to judicial custody through the same Investigating Officer after recording his confessional statement---In the confessional statement, all the questions were written in English and the reply so made by the accused was also written in English, but in the last question the accused had replied in Urdu---In the footnote/memo. randum it was not written that the questions so made to accused were translated into Urdu or in the language which he understood---Furthermore, the evidence given by the Judicial Magistrate nowhere stated that any access to an advocate or any relative was given to the accused---In the present case, the entire family was booked by the police while arresting accused, his brother, their mother and other family members, as such, it could not be said that the confessional statement was voluntary---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.

Sadi Ahmed and another v. The State 2019 SCMR 1220 rel.

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

----S. 164---Confession, retraction of---Scope---Retracted confessional statement should not be acted upon and made the basis of conviction unless it is corroborated in material particulars---Confessional statement has to be received holistically without quantification---Once confession is found unreliable, it cannot furnish the basis for the conviction of accused.

Wazir v. The State 2019 SCMR 1297 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creates reasonable doubt in a 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 Mansha v. The State 2018 SCMR 772 rel.

Imdad Ali Dahri for Appellant.

Nazar Muhammad Memon, Additional Prosecutor General Sindh for Respondent.

Muhammad Jameel for the Complainant.

Date of hearing: 23rd January, 2024.

Judgment

Amjad Ali Sahito, J.--- Through instant Jail Criminal Appeal filed by the above-named appellant/accused, assailing the judgment dated 30.11.2021, passed by learned Model Criminal Trial Court-II/IVth Additional Sessions Judge, Hyderabad in Sessions Case No.764 of 2014 (Re.The State v. Muhammad Kashif and another), the outcome of FIR bearing Crime No.113/2014, offence Under Sections 302 QDO and 34 P.P.C, registered with Police Station, B-Section Latifabad, whereby he was convicted for an offence punishable under section 302 (b) P.P.C for committing qatl-e-Amd of deceased Mst. Farhana, and sentenced to death as "Tazir" to hang by neck till he is dead subject to confirmation of this Court and to pay compensation of Rupees five lac to the legal heirs of deceased under section 544-A Cr.P.C or in default thereof, to undergo Simple Imprisonment for one year more. A reference for confirmation of the death sentence was also sent to this Court.

1. Briefly, the facts of the prosecution case are that on 20.08.2014, complainant Liaquat Hussain lodged an FIR at Police Station B-Section Latifabad Hyderabad alleging therein that in the year 2010, he got his two daughters Farhana and Aisha married with Aamir and Nadir being brothers inter se in the same house situated at Unit No.10 Hyderabad. His daughter Mst. Farhana whenever visited the house of the complainant, she used to complain that her mother-in-law and brother-in-law namely Kashif used to tease her by different means and her brother-in-law Kashif also maltreated her after her husband left the house for work. It is further alleged that a complaint was made by the complainant to his son-in-law and his father but they did not listen. It was 19th August 2014 when the complainant got information that his daughter Mst. Farhana has been tortured by her in-laws whereon he along with his brother-in-law (Sala) Muhammad Nisar arrived at the house of his son-in-law Aamir and noticed his daughter Mst. Farhana being seriously injured lying in her room who disclosed that she was in her room, it was 05:00 p.m. her mother-in-law (co-accused) and her brother-in-law Kashif holding Churri entered in her room whereas co-accused Mst. Sarwari caught hold her and Devar (brother-in-law) Kashif caused her Churri blows one after the other when her mother-in-law was saying not to leave her alive and Kashif was causing churri injuries to her then both left her in the room in injured condition and escaped away. Meanwhile, the complainant's son-in-law Aamir also arrived then they moved Mst. Farhana to Civil Hospital but she succumbed to her injuries at the gate of Civil Hospital Hyderabad and police of P.S B-Section Latifabad also arrived at the Hospital and, after conducting necessary formalities, handed over the dead body to the complainant party, hence complainant after the funeral and burial as well as getting free from guests appeared at police station and lodged the FIR.

2. After completing the investigation of the case, the police report under section 173 Cr. P.C (Challan) was submitted by the Investigating Officer against the above-named accused before the concerned Court.

3. The trial Court framed the charge against the appellant/accused and co-accused Mst. Sarwari, to which they pleaded not guilty and claimed to be tried. To establish accusation against the accused, the prosecution examined as many as 08 witnesses, PW-01 Dr. Shahida at Ex:3, she produced police letter, Lash Chakas Form and post-mortem report at Ex.03/A to Ex.03/C; PW-02 complainant Liaquat Hussain at Ex:4, who produced receipt of dead body and FIR at Ex.04/A to Ex.04/B; PW-3 witness Muhammad Nisar at Ex.05, he produced Danistnama, memo. of dead body, memo. of clothes at Ex.05/A to Ex.05/C; PW-4 Muhammad Aamir at Ex.06, he produced memo. of recovery at Ex.06/A while PWs Noor Ellahi and Muhammad Asif were given up by learned ADPP vide statement at Ex.07; PW-5 Muhammad Waqar at Ex.08, he produced memo. of arrest of accused at Ex.08/A; PW-6 SIP Muhammad Arif at Ex.09, he produced notice issued to complainant, arrival and departure entry and memo. of place of incident and recovery at Ex.09/A to Ex.09/C; PW-7 Ahsan A. Malik, the then Civil Judge and Judicial Magistrate at Ex.10, he produced application for recording confessional statement of accused, confessional statement, copy of application for recording statement under section 164 Cr.P.C of PW Muhammad Amir along-with order, copy of notice, copy of statement under section 161 Cr.P.C, copy of statement under section 164 Cr.P.C in original at Ex.10/A to Ex.10/F; PW Manzoor Ellahi was given up vide statement and finally PW-8 SIP Zahid Siraj at Ex.11, he produced entry No.32, entry No.20, entry No.13, letter to Mukhtiarkar and notice dated 02.09.2024 at Ex.11/A to Ex.11/E. Thereafter the prosecution closed its side vide statement at Ex:13.

4. The statement of the appellant and co-accused were recorded under Section 342 Cr.P.C. at Ex:14 and 15, wherein they denied the prosecution allegation levelled against them and claimed their innocence. However, they neither examined themselves on oath under section 340(2) Cr.P.C. nor led any evidence in their defence.

5. The learned trial Court, after hearing the learned counsel for the parties and appraisal of the evidence, convicted and sentenced the appellant in a manner as stated above. The conviction and sentence, recorded by the learned trial Court, have been impugned by the appellant before this Court by way of filing the instant Criminal Jail Appeal.

6. Learned counsel for the appellant has mainly contended that the appellant is innocent and has falsely been implicated in this case; that the confessional statement of appellant was recorded by a Magistrate is inadmissible in the evidence as no reflection time was given to him nor any counsel provided to the appellant; that after recording the confessional statement of appellant the custody was handed over to the same I.O; that there is no evidence against the appellant except the confessional statement which was recorded with delay of about six days and having no value in the eyes of law; hence it cannot be believed that the confessional statement recorded was voluntarily and true; that the appellant retracted from his confessional statement and it is well-settled law that the retracted confession required corroboration which was lacking, thus, the confession could not have been recorded on the basis thereof; that from the evidence on file no offence whatsoever has been made out against the appellant. Lastly, he prayed for the acquittal of the appellant.

7. On the contrary, the learned Additional Prosecutor General, Sindh as well as learned counsel for the complainant made submissions on the dismissal of instant appeal for the reason that there is no illegality or irregularity appears to have been committed by the learned Trial Court and impugned Judgment is well reasoned and speaking one.

8. We have heard learned counsel for the respective parties and gone through the material available on record.

9. Admittedly, there is no ocular evidence is available on the record to connect the appellant with the commission of the offence as the incident is unseen and FIR was lodged on the statement/dying declaration of the deceased Mst. Farhana when she was found injured condition by her father Haji Liaquat Hussain (PW-2)/Ex:04. The complainant had disclosed in the FIR that on 19.08.2014 he was present in his house along with his brother-in-law namely Muhammad Nisar and received a call from someone, who informed him that Mst. Farhana became injured. After receiving such information, he along with his brother-in-law reached at the house of in-laws of his daughter and found his daughter seriously injured and blood oozing from her injuries. The deceased Farhana informed him that at the instigation of her mother-in-law, her brother-in-law caused knife/churri blows to her. The complainant further disclosed in his evidence as well as in the FIR that he along with his brother-in-law went outside the house to take the vehicle and in the meanwhile the husband of the injured/deceased Mst. Farhana namely Aamir had taken injured to Hilal Ahmer Hospital, and then to Civil Hospital Hyderabad where she succumbed to the injuries.

10. The appellant was arrested on 21.08.2014 and his confessional statement was recorded on 27.08.2014 with a delay of about six (6) days, except the confessional statement made by appellant Muhammad Kashif and there is no other evidence available on record, later on the appellant retracted from his confessional statement while recording his 342 Cr.P.C. statement. As regards the evidentiary value of the confession it may be pointed out here that by law, it is well-settled that a confession alone cannot form the basis of a conviction unless it finds strong corroboration from independent and reliable evidence in material particulars. In the case of State v. Munir alias Gul Hassan PLD 1964 SC 813, it was held that though retracted confessions whether judicial or extra-judicial can legally be taken into consideration against the maker of those confessions yet, in a criminal case it is not prudent to base conviction on its strength alone unless it is corroborated in material particulars. In the case of Nadir Hussain v. The Crown 1969 SCMR 442 it was observed that the rule of caution universally applied to the cases of retracted confession requires that such confessions should not be acted upon unless corroborated in material particulars by reliable evidence. The above view was also affirmed in the case reported as Habib Ullah v. The State 1971 SCMR 341. In the case of "The State v. Waqar Ahmed 1992 SCMR 950", it was further observed that there was no rule of law that confessions whether retracted or not, could not be made the sole basis for conviction, but the principle of procedure and rule of caution required that a retracted confession must be supported by some connecting evidence. In the above-referred case, it was also observed that no basis difference exists between a confession or a retracted confession if the element of truth is not missing and it is always a question of fact which is to be adjudged by the Courts on the attending circumstances of a particular case. Subsequently, in the case of Abdul Latif v. The State reported as PLJ 1999 SC 264 and(sic) 1999 SC 413, the Hon'ble Supreme Court of Pakistan was pleased to lay down that though no hard and fast rule as to acceptability of retracted confession can be laid down yet, a conviction cannot be based entirely on retracted confession and that such a confession, apart from satisfying the requirements of law has also to be corroborated by other evidence leading to the satisfaction that crime must indeed have been committed by the accused. In the case of Hashim Qasim and others v. The State 2017 SCMR 986 the Hon'ble Supreme Court of Pakistan was pleased to lay down that it was observed that retracted confession is corroborated by independent evidence of reliable nature, could be made the basis for conviction on a capital charge. It thus follows that though it is not prohibited to record a conviction based on a retracted confession yet, in the absence of strong and independent corroboratory evidence it cannot be solely, made the basis of a conviction.

11. That being so, now, therefore, it has to be seen on record, as to what sort of corroboratory evidence is available to believe the confession. The prosecution examined the father/complainant Haji Liaquat Hussain (PW-2) of the deceased Mst. Farhana. He deposed that has received a call from someone who informed him that Mst. Farhana was seriously injured, as her mother-in-law Mst. Sarwari Begum had instigated her son Kashif, who caused Churri blows to Mst. Farhana. After hearing such information he along with brother-in-law Muhammad Nisar (PW-3) reached at the house of in-laws of his daughter and found his daughter seriously injured and blood was oozing from her injuries. His daughter informed him that at the instigation of her mother-in-law, her brother-in-law caused knife/Churri blows to her. Based on the dying declaration of the deceased the complainant involved both the accused in the commission of offence. The complainant went outside the house to take the vehicle meanwhile the husband of Mst. Farhana namely Aamir had taken his injured daughter to Hilal Ahmer Hospital Hyderabad and then to Civil Hospital Hyderabad where she succumbed to the injuries. PW-2 Muhammad Nisar deposed that after receiving the injuries the injured was lying and she was semi-conscious and disclosed that her brother-in-law had caused injuries to her at the instigation of her mother-in-law/co-accused. Such a fact has not been disclosed by the doctors of Hilal Ahmer Hospital Hyderabad where she was first shifted and thereafter the injured was shifted to Civil Hospital Hyderabad. In cross-examination, the complainant admitted that "I reached at the house of inlaws of my daughter within 15 to 20 minutes." Further, he has admitted that his daughter was lying on the ground portion of the house whereas her inlaws were on the upper portion of the house. He did not find any person from the upper portion of the house; they had searched the vehicle for 10 minutes on the road but could not succeed, therefore, they again came to the house of inlaws of his daughter without taking any vehicle where he was informed by Muhalla people that his daughter had been brought by her husband to the Hospital. He first went to the Hilal Ahmer Hospital to see his daughter where got information that she was brought to Civil Hospital Hyderabad. He has also admitted in cross-examination that his other daughter namely Mst. Aisha was also married to another brother of the accused and the marriage of both daughters was arranged on the same date. On the day of the incident when he reached the house of inlaws of his daughter but her daughter namely Mst. Aisha had also not been with him. The husband of his daughter namely Aamir was also arrested by the police; they remained in the hospital for one or one and a half hours and thereafter the dead body was handed over to them. Though the suggestion was given to the complainant that before the incident so many times his daughter tried to commit suicide but he has denied such a suggestion. The other daughter of the complainant Mst. Aisha is still living in her in-law's house on the upper portion with her children happily, however, he admits that he lodged an FIR on 19.08.2014.

12. The motive set up by the prosecution is/was that there was a quarrel between their sister-in-law (Bhabhi) and her brother-in-law on the ground that she used to quarrel with her in-laws but no material has been brought on the record to believe that there was a quarrel between the parties on matrimonial affairs. The complainant in his cross-examination admitted that "It is correct that I had not stated in my examination in chief that my daughter had made complaints against her mother-in-law and her brother-in-law prior to this incident for so many times when she visited my house." From the evidence of the complainant, it appears that after receiving the injuries she/deceased nearly about 40/45 minutes alive and thereafter she succumbed to her injuries but as per evidence of P.W-1 Dr Shahida duration between death and injuries was instantaneously, hence the evidence of P.W-1 that in presence of complainant's brother-in-law the injured informed him that she has received the injuries at the hands of the appellant on the instigation of Mst. Sarwari Begum having no force as the complainant claimed that he reached at house of the in-laws of Mst. Farhana within 15 to 20 minutes and thereafter she disclosed such facts.

13. In support of the contention, the prosecution examined P.W-3 (Muhammad Nisar) who is stated to be the brother-in-law of the complainant in his deposition has stated that on the day of the incident between 04:00 or 04:30 p.m., he was present in his house where he was informed that Mst. Farhana had been killed by her in-laws after receiving the information he along with the complainant rushed towards the house of the in-laws of the deceased Mst. Farhana. His two sons and nephew were also coming behind them. She was lying on the ground floor of the house in semi-conscious thereafter the husband of the deceased namely Aamir and his brother took the injured Mst. Farhana to the Hospital, in the ambulance and they also went behind them when they reached Civil Hospital they came to know that Mst. Farhana had expired on the way and her husband had tried to run away by leaving the dead body in the ambulance but he was arrested by one police constable. The police also made further proceedings in the hospital by preparing the Danistnama which was produced as Ex.05-A so also police prepared the memo. of a dead body at Ex.05/B. The dead body was handed over by police after conducting the postmortem. Police have also recorded his statement under section 161 Cr.P.C. In cross-examination, he admits that the mother-in-law and husband of the deceased and other muhalla people gathered at the house when they reached there. They remained at the house of the in-laws of the deceased for about one hour or one and a half hours. They remained in the Civil Hospital Hyderabad up to 08:30 or 09:00 p.m. The complainant claimed that P.W-3 (Muhammad Nisar) was with him but he narrated another story and stated that when they reached the house of in-laws of Mst. Farhana her husband had brought an ambulance and she was shifted to Civil Hospital Hyderabad. Further in cross-examination, he admits that the muhalla people also reached the house of her in-laws but not a single independent person was examined by the I.O of the case to believe the prosecution story. The prosecution also examined the husband of the deceased Mst. Farhana and the brother of the appellant Muhammad Aamir (P.W-4) and he has deposed in his evidence that near about 04:30 or 04:00 p.m. he received a telephone call from his brother Manzoor Ellahi who told him to immediately arrived at home, therefore, he came at his house and saw his wife Mst. Farhana is in injured condition. He brought his wife in injured condition to Hilal Ahmer Hospital, where doctors referred his wife to the Civil Hospital then he brought his injured wife to the Civil Hospital in an ambulance where his wife succumbed to the injuries. After two hours his brother-in-law Noman also reached at Hospital. The police also reached at Hospital and arrested him (Aamir) but nowhere he has stated that complainant Haji Liaquat Hussain and P.W-3 Muhammad Nisar were present there only the husband of the injured Mst. Farhana disclosed that brother-in-law Noman was present. Police recorded his statement under section 161 Cr.P.C and on 03.09.2014, his statement under section 164 Cr.P.C was recorded before the concerned Magistrate. The police had informed him that his brother Muhammad Kashif had confessed his guilt that he had murdered his wife. The police had obtained his signature on mashirnama of recovery of a crime weapon i.e. knife at the police station. The crime weapon had not been recovered from the accused in his presence. He has produced a memo. of recovery at Ex.06-A and says it only bears his signature. The P.W-4 admitted that the case property viz. knife present in the Court and seen by him at the police station and the same had not been recovered from his house. Learned ADPP declared the witness as hostile and with permission of the Court he was cross-examined and he has denied the suggestion that a crime weapon was recovered by police in his presence from their house. In cross-examination, the husband of the deceased admitted that his wife was abnormal and he also admitted that before 19.08.2014 his wife had attempted to commit suicide. He remained in the police custody from 19.08.2014 to 25.08.2014. He has also admitted that police had arrested the co-accused and his other family members.

14. The prosecution also examined the most important witness viz. P.W-7 Ahsan A. Malik the then Civil Judge and Judicial Magistrate-VI Hyderabad wherein he has deposed that on 27.08.2014 he was posted at Civil Judge and Judicial Magistrate-VI Hyderabad. On the same day, the I.O of the case ASI Zahid Siraj submitted an application for recording the confessional statement of the accused Muhammad Kashif same was allowed and the handcuffs of the accused were removed. He was got sit in the chamber. He produced the application for recording the confessional statement of the accused with an order dated 27.08.2014. The accused was placed in the custody of the Court staff and he was warned that he is not bound to record a confessional statement and if he records his confessional statement the same may be treated against him. He was also informed that he is a Judicial Magistrate. The reflection time was given to him from 1200 hours to 1400 hours. After reflecting time again he was called and he was also informed that if he confessed the same would be used against him. The accused replied that he was ready to confess voluntarily without any coercion. The accused was examined with his consent. The accused informed the Magistrate that he was in police custody for five days and his confessional statement was recorded thereafter accused was remanded to Judicial custody.

15. The confessional statement was produced at Ex.10/B. In cross-examination, he admitted that the accused was remanded to judicial custody through the same I.O. after recording his confessional statement. We have also perused the confessional statement which is available at Ex.10/B wherein all the questions are written in English and the reply so made by the accused/appellant was written also in English and in the last question what has to say he has replied in Urdu but in the footnote/memorandum nowhere it is written that the questions so made to him were translated into Urdu or in the language which he understands but simply said by the learned Magistrate that contents were read over to the person making it and admitted by him to be correct.

16. According to the Magistrate, the custody was handed over to the I.O of the case after recording the statement for sending him to Central Prison. Furthermore, the evidence given by the learned Civil Judge and Judicial Magistrate nowhere stated that any access of advocate or any relative was given to the accused. When the co-accused /witness Muhammad Aamir stated that he is the brother of the appellant and his other family members were arrested by the police the learned Judge did not inquire from the appellant or he did not depose in his evidence that he inquired from the appellant whether his any members are in illegal detention or not. In the instant case, the entire family was booked by the police while arresting him, his brother their mother and other family members, as such, it cannot be said that the confessional statement is voluntary. Furthermore the real sister namely Mst. Aisha of deceased Farhana also residing in the upper portion of the house and after hearing the noises father, mother and younger brother of the appellant came there but nowhere the complainant and Muhammad Nisar deposed that Mst. Aaisha the real sister of the deceased had seen this incident. In the case of Sadi Ahmed and another v. The State, [2019 SCMR 1220], the Hon'ble Supreme Court of Pakistan while acquitting the accused has held that the confessional statement is not in line with the prosecution case set up in the crime report. A perusal of the confessional statement, it transpired that the same has been recorded by the learned Magistrate in proforma in English and the last question in Urdu. It is not disclosed therein that the contents of the confessional statement were explained to the accused in the Urdu language. Apart from the above defects in the confessional statement, the accused had retracted from it (confessional statement).

17. The rule of prudence requires that retract confessional statement should not be acted upon and made the basis of conviction unless it is corroborated in material particulars. The record reflects that no corroboration has been made by the prosecution to support its case. It is by now well settled that a confessional statement has to be received holistically without quantification, once it is found unreliable, it cannot furnish the basis for the appellant's conviction as well. In this context, reliance can safely be placed on the case of Wazir v. The State [2019 SCMR 1297]. The Hon'ble Supreme Court of Pakistan has held that:

"Once prosecution opts to rely upon a confessional statement of an accused to his detriment it must come forward with the disclosure above all suspicions and taints: it is not a case in hand. Findings recorded by the medical officer with regard to cause of death are not in line with the details purportedly furnished by the appellant. According to the confessional statement, the deceased was tortured and he became unconscious when the accused put a quit on him and found dead when removed, whereas according to Dr. Nisar Ahmed, PW-7 the death "occurred due to extraordinary violence, choking and fracture of cervical spine (due to trauma and fracture choking) (asphyxial death)". Confessional statement cannot be favourably received without being imprudent for yet another reason; it has been disbelieved qua Ibrahim, Muhammad Zaib, Hassan Shah, Javed, Shah Zaman, Wali Khan, Sajid Khan and Ghani Khan, coaccused. It is by now well settled that a confessional statement has to be received holistically without quantification; once it is found unreliable qua majority of the accused notwithstanding different roles it cannot furnish the basis for appellant's conviction as well."

1. Further accused cannot be convicted solely based on confession; the Court must see corroboration of an independent nature against such confession before recording any conviction on the basis thereof. The complainant claimed that the deceased had informed him about the incident but his claim was not supported by Dr Shahida, P.W Muhammad Nisar his nephew Noman and P.W Muhammad Aamir, Further the complainant disclosed that she was alive for more than 20 minutes when he reached the place of the incident but finding recorded by the medical officer concerning duration between death and injuries was instantaneously, hence the ocular evidence did not find support from medical evidence. According to P.W Muhammad Nisar, she was semi-conscious but the complainant disclosed that Mst. Farhana has disclosed the details of the incident in a manner that took place. The most important witness Mst. Aaisha the sister of the deceased was available in the upper portion of the house and after hearing the noises all the family members rushed to the place of the incident even Muhalla people were there but neither she was examined nor her statement was recorded to believe the version of the complainant that the deceased was murdered by the appellant on the instigation of her mother. The entire family was roped in the instant case and the confessional statement was recorded with a delay of about seven days without any explanation.

2024 Y L R 2483

[Sindh]

Before Zafar Ahmed Rajput, J

Fida Muhammad and another---Applicants

Versus

The State through Pakistan Customs Karachi and others---Respondents

Crl. Bail Applications Nos. 71 and 841 of 2023, decided on 16th June, 2023.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic substance---Bail, grant/refusal of---Further inquiry---Prosecution case was that 380 kilograms heroin was recovered from the container of the accused-petitioner---Applicant during his business activities from 04.02.2022 to 29.06.2022 shipped six consignments to four different destinations by using services of three different export companies---Record showed that the container was not scanned or examined physically at Terminal/Port, as the Terminal Operator scanned only those containers, which were referred to by any Government Agency with specific request of scanning---In the present case no Government Agency requested for the scanning of the container and the container was processed in the yellow channel facility of the WeBOC system on the basis of profile of the exporter---On 14.06.2022, applicant made impugned shipment through M/s. Qtinity by hiring clearing services of M/s. Al-Kasib---As per material available with prosecution, applicant procured grey fabric and the machinery for packing purposes; packing of goods and narcotics was made by his employees/accomplices under his supervision, which he acquired on rental basis; he himself booked the Container through freight forwarder M/s. Swift Shipping Agency (Pvt.) Limited and uploaded the Container Release Order on WhatsApp group (Qtinity/ Swift /Rotterdam) for intimation and coordination of the group members; he uploaded weighment of the container on afore-mentioned WhatsApp group for intimation and further processing for customs purposes---As regard applicant No. 2, it appeared that he was the proprietor of M/s. Qtinity that shipped three consignments owned by applicant including the two from which narcotics were recovered---As per prosecution, he arranged financial instrument for the shipment of the impugned consignment but in good faith---From the final challan, it had been established that applicant No. 2 failed to exercise due diligence and thereby he allowed unauthorized use of his firm (M/s. Qtinity) by applicant No. 1 to export his consignment---Such act of the applicant No. 2was in violation of S.155E of the Customs Act, 1969, for which User ID of M/s. Qtinity had been blocked---However, as per material available with prosecution, the said applicant had not been found involved in purchasing of fabric and machinery for using in smuggling of narcotics or in hiring of warehouse where the goods were placed and packing was done or in funding of the shipment or transportation of the goods from the warehouse to the port---Besides, it was an admitted position that the said applicant himself wrote a letter dated 13.07.2022, requesting the Customs Authority for recalling of the container---Record showed that the said applicant was initially made a witness in the FIR---Admitted position from the record was that no incriminating evidence was available with prosecution against the said applicant to connect him with the commission of an offence under the Control of Narcotic Substances Act, 1997---Merely using export I.D, license, etc., of the said applicant's company did not constitute per se any offence under the Control of Narcotic Substances Act, 1997---Hence, in such a situation keeping the said applicant behind the bars for an indefinite period would serve no purpose---From the tentative assessment of the evidence on record, it appeared that the prosecution had sufficient material against applicant No. 1 to connect him with the commission of alleged offence carrying punishment for death or imprisonment for life---No case for granting bail to him on the ground of further inquiry had been made out---Bail petition of applicant No. 1 was dismissed, in circumstances---So far, as the bail plea of applicant No. 2 was concerned, his case was found as one of further inquiry as envisaged under subsection (2) of S.497, Cr.P.C.---Consequently, applicant No. 2 was admitted to post-arrest bail.

Sh. Muhammad Tasleem v. The State 2006 SCMR 468; Haji Inayat and another v. The State 2010 PCr.LJ 825; Muhammad Faisal v. The State 2006 YLR 3039; Ejaz Ali v. The State 2009 MLD 773; Nasir Aziz and another v. The State 2020 YLR 1429; Mst. Hameeda Begum alias Hameedee and others v. The State 2009 YLR 73; Zahid Sultan v. The State and another 2019 YLR 2798; Ismaeel v. The State 2010 SCMR 27; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Inzar v. The State 2013 PCr.LJ 843; Gul Zaman v. The State 1999 SCMR 1271; Shoaib Sultan v. The State 2015 YLR 855; The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14; Noor Khan v. The State 2021 SCMR 1212; Bilal Khan v. The State 2021 SCMR 460; Fareed Ahmed and another v. The State 2023 PCr.LJ 583; Lutufullah v. The State 2020 PCr.LJ 184; Syed Muhammad Ayaz v. The State 2020 YLR Note 160 and Muhammad Suleman v. The State 2022 MLD 735 ref.

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

----S. 497---Bail---Observations of the Court---Scope---Observations made in bail orders are tentative in nature and should not influence the Trial Court while deciding the case on merits.

Abdul Wahab Baloch, S.M. Shuja Abbas and Abbas Hayder Gaad for the Applicant (in Cr. Bail Application No. 71 of 2023).

Abid S. Zuberi, Iftikhar Ahmed Shah, Ali Abid Zuberi, Syed Farhan Ali Shah and Manzoor Hussain for Applicant (in Cr. Bail Application No. 841 of 2023).

Pervaiz Ahmed Memon and Khalid Rajpar, for Assistant Collector of Customs Collectorate of Exports (PMBQ), Karachi and Muhammad Ahmed and Qazi Ayazuddin Qureshi, Assistant Attorney Generals for the State.

Dates of hearing: 14th and 16th July, 2023.

Order

Zafar Ahmed Rajput, J.---By this common order, I intend to dispose of above listed criminal bail applications as the same, being arisen out of Crime/ FIR being No. SI/ MISC/ 22/ 2022-EIB/EXP-PMQB, registered under section 6/9-C, read with sections 14 and 15 of the Control of Narcotic Substances Act, 1997 (the "Act") at P.S. Customs, Karachi have been heard by me together.

1. Applicants/ accused Fida Muhammad son of Ghulam Dastageer and Humair Qureshi son of Munir Qureshi through listed Cr. Bail Applications, respectively, seek post-arrest bail in aforesaid crime. Earlier their applications for the same relief bearing Nos. 177/2022 and 45/2023 in Special Case No. 95/2022 were dismissed by the Special Court-II (C.N.S.), Karachi vide orders, dated 17.12.2022 and 05.04.2023.

2. Brief facts of the case, as narrated in the FIR lodged on 22.08.2022 by Ali Nawaz, Appraising Officer, Collectorate of Customs (Exports) Port Muhammad Bin Qasim, Karachi ("PMBQ") are that on 16.08.2022, a joint examination team comprising of examination staff of Collectorate of Customs Exports, Karachi and Collectorate of Customs Exports (PMBQ), Karachi examined a Container No. MSCU-6590981 ("the Container") at IC3 Yard, PMBQ in presence of representative of Clearing Agent and two musheers and recovered 380 Kg heroin wrapped over the cone beneath the fabric. It revealed that applicant Fida Muhammad was the actual owner of the Container.

3. Learned counsel for the applicant Fida Muhammad has contended that the applicant is innocent and has no nexus with the alleged offence and he has been falsely implicated in this crime with ulterior motives by the customs officials; that all the witnesses are official witnesses and sub-ordinate to the complainant, who have acted at the behest of the complainant to endorse his false and fictitious version; that a bare perusal of the primary data/record collected by prosecution reflects that the consignment of grey fabric cotton rolls was exported by co-accused Humair Qureshi, who is the owner of the export company i.e. M/s. Qtinity and he filed Goods Declaration No. KPPE-SB-298611 ("the said GD") electronically through their authorized clearing agent M/s. Al-Kasib as well as the financial instrument also pertains to M/s. Qtinity, which fact alone rules out the involvement of the applicant in the alleged crime; that the applicant has been reposed with the crime on the basis of fake and fictitious WhatsApp texts at the instance of two PWs, namely, Ali Raza Khan of M/s. Qtinity and Mudassir Hussain of Swift Shipping and the authenticity thereof would be determined at the time of trial; hence, the guilt of the applicant requires further inquiry; that the applicant is under incarceration since the day of his arrest merely on the allegation that he has committed an offence of heinous nature punishable with a maximum of death or life, while no reasonable grounds are available for implication of the applicant with the commission of the alleged offence. In support of his contentions, learned counsel has relid upon the cases of (i) Sh. Muhammad Tasleem v. The State (2006 SCMR 468) (ii) Haji Inayat and aother v. The State (2010 PCr.LJ 825) (iii) Muhammad Faisal v. The State (2006 YLR 3039) (iv). Ejaz Ali v. The State (2009 MLD 773) (v). Nasir Aziz and another v. The State (2020 YLR 1429) (vi). Mst. Hameeda Begum alias Hameedee and others v. The State (2009 YLR 73) (vii). Zahid Sultan v. The State and another (2019 YLR 2798) (viii). Ismaeel v. The State (2010 SCMR 27) (ix). Naveed Asghar and 2 others v. The State (PLD 2021 SC 600) (x). Inzar v. The State (2013 PCr.LJ 843) (xi). Gul Zaman v. The State (1999 SCMR 1271) and an unreported order, dated 31.03.2023, passed by a Single Bench of this Court in Cr. Bail Applications Nos. 565 and 566 of 2023.

4. Learned counsel for the applicant Humair Qureshi has maintained that the applicant is an exporter, he is the owner of M/s. Qtinity and is a victim of circumstances; that the applicant has not been nominated as an accused in the FIR, on the contrary he was shown in Column No. 8, serial No. iii of the FIR as a witness of the case; that the applicant had informed the Customs Authority through his letter, dated 13.07.2022, that the consignment en route to Rotterdam belonged to the co-accused Fida Muhammad, who exported the same through his company, and made a requested for recalling of the same; that the applicant was shown as an accused in the interim Challan, dated 25.10.2022, without assigning him any specific role; that from the findings of the I.O. in his final challan, it is clearly established that the applicant was not involved in the crime and it was co-accused Fida Muhammad who was the actual owner of the impugned consignment; that the co-accused Taha Hussain Khan was granted pre-arrest bail by the Special Court-II (C.N.S.), Karachi and the applicant's role is similar to that of Taha Hussain; hence, he is entitled to bail on rule of consistency; that the applicant has not done any act in the commission of crime neither did he have any mens rea for the alleged crime of procuring, concealing, exporting and smuggling narcotics; that the learned Special Court while rejecting bail plea of the applicant has observed in its Order, dated 05.04.2023 that the applicant was negligent by not obtaining an undertaking from the actual owner of the impugned consignment, namely, Fida Muhammad, though it is established principle of criminal jurisprudence that the negligence cannot amount to criminal liability; that from the plain reading of the FIR, Challans and Statements of P.Ws, it is crystal clear that the applicant's case falls within the ambit of further inquiry entitling him to the concession of post-arrest bail. In support of his contentions, learned counsel has relied upon the cases of (i). Shoaib Sultan v. The State (2015 YLR 855) and (ii). The State through Deputy Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum (2001 SCMR 14).

5. Conversely, learned counsel for the Customs Department and Assistant Attorney Generals have resisted the bail applications on the grounds that the applicants are exporter of the impugned consignment, who got issued Form-E and filed fake documents; that the applicants are involved in smuggling of heroin in huge quantity. In support of their contentions, they have relied upon the cases of (i). Noor Khan v. The State (2021 SCMR 1212) (ii). Bilal Khan v. The State (2021 SCMR 460) (iii). Fareed Ahmed and another v. The State (2023 PCr.LJ 583) (iv). Lutufullah v. The State (2020 PCr.LJ 184) (v). Syed Muhammad Ayaz v. The State (2020 YLR Note 160) and (vi). Muhammad Suleman v. The State (2022 MLD 735).

6. Heard, Record perused.

7. It appears from the perusal of the record that M/ s. Qtinity, having its office in Karachi, electronically filed the said GD destined to Rotterdam, Netherlands having the Container through Clearing Agent M/ s. Al-Kasib by declaring the description of the goods as 100% Cotton Rolls Grey Fabric (plain weave) under PCT Heading 5209.1100, with declared value of 45464.52 EURO and weight of 12,310 Kg against Financial Instrument No. BAF-EXP-024206-13062022 of Bank Alfalah Limited, Pakistan. The WeBOC system allowed loading under yellow channel on the basis of profile of the exporter.

8. It further appears that earlier, on 01.07.2022, FIR No. SI/ MISC/201/ 2022-EXP-EW was lodged by the Collectorate of Customs (Exports) Karachi on recovery of 47kg Methamphetamine in export consignment of the said Exporter and Clearing Agent destined to Melbourne, Australia vide Goods Declaration No. KPEX-SB-182651, dated 29.06.2022. During investigation in the said FIR, it transpired that one more consignment having the Container of the said Exporter and Clearing Agent was on its way to Rotterdam, Netherlands vide the said GD. The Exporter i.e. M/ s. Qtinity through its proprietor Humair Qureshi vide letter, dated 13.07.2022, also intimated to Collector of Customs, Export Collectorate, Karachi that his Container was on its way to Rotterdam, Netherlands vide said GD and requested for arrangements of its return at his cost; hence, the Shipping Agency i.e. M/s. Sharaf Shipping Agency (Pvt.) Limited, Karachi vide letter, dated 07.07.2022, was directed by the Customs Authority to return the Container from Rotterdam to PMBQ without off loading at Rotterdam. The Shipping Agency vide letter, dated 11.08.2022, informed that the Container was being returned to PMBQ on vessel MSC PINA-IP227R. On arrival of the Container on 16.08.2022 at PMBQ, the shipping documents from Terminal Operator were called in order to verify the sanctity of shipper and Customs seals. The seals bearing No. 053403 and 66172 were found intact and the Container was shifted from Qasim International Container Terminal Yard to IC3 Yard at PMBQ under Customs squad in presence of the two musheers, namely, Mr. Zaheer Ashraf, Appraising Officer and Sepoy Mr. Farhanullah. A joint examination team comprising of examination staff of Collectorate of Customs Exports, Karachi and Collectorate of Customs Exports (PMBQ), Karachi was constituted to examine the Container at IC3 Yard, PMBQ. The complainant along with Joint Team examined the Container in presence of representative of the Clearing Agent i.e. Ghulam Haider Bhutto, and two musheers, namely, Zaheer Ashraf, Appraising Officer, and Arshad, IC3 Surveyor, by destuffing the goods of the container, which led to recovery of wrapped cones beneath the fabric. Upon further examination, the suspicious substance in powder form was found to be properly concealed by wrapping all over the cone. The cone was used as inner support for wrapped fabric. The recovered goods were tested on the spot with the help of disposable testing field kit for narcotic substances which gave positive inference of presence of heroin. Total 380 Kg of heroin was recovered from 396 rolls. Each of concealments was collected separately in plastic bags and six representative samples weighing 10 grams each were collected in plastic pouches/jars in presence of musheers for the purpose of lab tests; out of them, three samples were sent to Custom House Laboratories, which determined Diacetylmorphine hydrogen chloride i.e. heroin and three samples were sent to HEJ, Karachi. The recovered narcotics along with the Container were seized under mashirnama prepared on the spot. The Customs Collectorate conducted preliminary inquiry on the basis of information passed and investigation conducted by the Collectorate of Customs (Exports), Karachi in earlier FIR, dated 01.07.2022, and it was revealed that the criminal activity of narcotics smuggling was performed through export consignments by applicant Fida Muhammad who had been linchpin in narcotics trafficking and effected exports being actual owner of the impugned goods.

9. It also appears that applicant Fida Muhammad during his business activities from 04.02.2022 to 29.06.2022 shipped six consignments to four different destinations by using services of three different export companies. Out of them, he used financial instrument/services of the M/s. Qtinity in following three shipments:-

(i) Consignment of cotton rolls grey fabric, exported vide GD No. KPEX-SB-147422, dated 15.04.2022 destined for Rotterdam

(ii) Consignment of cotton rolls grey fabric (plain weave), exported vide GD No. KPPE-SB-298611, dated 14.06.2022 destined for Rotterdam (subject matter of the present FIR)

(iii) Consignment of Himalayan Pink Salt vide GD No. KPEX-SB182651, dated 29.06.2022 to Melbourne, Australia. ((subject matter of the FIR No. SI/MISC/201/ 2022-EXP-EW)

It further appears that the Container was not scanned or examined physically at Terminal/Port, as the Terminal Operator scans only those containers, which are referred to by any Government Agency with specific request of scanning. In the instant case no Government Agency requested for the scanning of the Container and the Container was processed in the yellow channel facility of the WeBOC system on the basis of profile of the exporter. It also appears that, on 14.06.2022, applicant Fida Muhammad made impugned shipment through M/s. Qtinity by hiring clearing services of M/s. Al-Kasib. As per material available with prosecution, applicant Fida Muhammad procured grey fabric and the machinery for packing purposes; packing of goods and narcotics was made by his employees/accomplices under his supervision at Plot No. 536, Sector 7-A, Korangi Industrial Area, Karachi, near Chamra Chowrangi, Korangi which he acquired on rental basis; he himself booked the Container through freight forwarder M/s. Swift Shipping Agency (Pvt.) Limited and uploaded the Container Release Order on WhatsApp group (Qtinity/Swift/ Rotterdam) for intimation and coordination of the group members; he uploaded weighment of the Container on afore-mentioned WhatsApp group for intimation and further processing for Customs purposes.

1. As regard applicant Humair Qureshi, it appears that he is the proprietor of M/s. Qtinity that shipped three consignments owned by Fida Muhammad including the two from which narcotics were recovered. As per prosecution, he arranged financial instrument for the shipment of the impugned consignment to Fida Muhammad but in good faith. From the Final Challan, it is established that he failed to exercise due diligence and thereby he allowed unauthorized use of his firm (M/s. Qtinity) by Fida Muhammad to export his consignment. Such act of the applicant Humair Qureshi is in violation of section 155E of the Customs Act, 1969 for which User ID of M/ s. Qtinity has been blocked. However, as per material available with prosecution, the said applicant has not been found involved in purchasing of fabric and machinery for using in smuggling of narcotics or in hiring of warehouse where the goods were placed and packing was done or in funding of the shipment; transportation of the goods from the warehouse to the port. Besides, it is also an admitted position that the said applicant himself wrote a letter dated 13.07.2022, requesting the Customs Authority for recalling of the Container. It is also a matter of the record that the said applicant was initially made a witness in the FIR It is also an admitted position from the record that no incriminating evidence is available with prosecution against the said applicant to connect him with the commission an offence under the Act. Merely using export I.D, license, etc., of the said applicant's company does not constitute per se any offence under the Act. Hence, in such a situation keeping the said applicant behind the bars for an indefinite period will serve no purpose.

2024 Y L R 2498

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Muhammad Aslam---Appellant

Versus

The State---Respondent

Criminal Appeal No. 215 of 2021, decided on 15th November, 2022.

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

----S. 9(c)---Possession of narcotic substance ---Appreciation of evidence---Benefit of doubt---Prosecution case was that 25-kilograms charas was recovered from the possession of accused---Case of the prosecution was that on the day of the incident the complainant along with his staff reached at the place of incident, and one person holding bags in both hands was standing whom he arrested and recovered 25 Kilograms charas under mashirnama of arrest and recovery---However, the prosecution had not established whether both the bags allegedly recovered from the accused were sealed separately or the same were sealed in one sack---Complainant and recovery witness during their evidence deposed that both the bags were sealed on spot but a look at the Chemical Examiner Report reflected that only one bag was received at Chemical Laboratory and on its opening two bags were found---Complainant and recovery witness had deposed that they weighed the charas at a nearby LNG shop but said shop did not find a place in the sketch prepared by the Investigation Officer nor it had come on record where the said shop was situated---During the investigation, neither shopkeeper was examined by the Investigation Officer nor was produced before the Trial Court to strengthen the prosecution case---Complainant deposed that on reaching the police station he had made relevant entries in the book and thereafter registered the FIR---Complainant deposited recovered charas in the Malkhana and subsequently, the FIR including other documents and the accused were handed over to the Investigation Officer---Complainant did not utter a single word that he had handed over the case property viz. charas to the Investigation Officer; however, the Investigation Officer deposed that on 16.06.2020 he received FIR and other documents, and case property viz. charas from the complainant---Investigation Officer had not stated a single word that after receipt of chars from the complainant he had deposited it in the Malkhana---Investigation Officer again stated that after taking property from Malkhana he had deposited it with the Chemical Examiner---If the evidence of the complainant was believed then the Investigation Officer was lying in respect of receiving the case property viz the charas or vice versa---Circumstances established that the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Qaiser v. The State 2022 SCMR 1641; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs, Zubair Khan v. The State 2021 SCMR 492 and The State through Regional Director ANF v. Imam Bukhsh and others 2018 SCMR 2039 ref.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Safe custody of the recovered substance not proved---Prosecution case was that 25-kilogram charas was recovered from the possession of accused---Investigation Officer in his cross-examination deposed that on 17.06.2020 he collected case property i.e. charas from Head Moharar at the police station under entry No.5 at 09.00 a.m. but he had not examined the Head Moharar nor the said Head Moharar was produced before the Trial Court to prove the safe custody of charas---Even the prosecution had failed to establish that at the relevant time who was the incharge of the Malkhana---Prime duty of the prosecution was to ensure safe custody of the recovered charas from the time of recovery till its arrival at the office of the Chemical Examiner and its failure to do so would cast doubt on and impair the reliability of the chemical report---Record showed that the prosecution had not produced strong evidence to prove the safe custody of charas, therefore, by failing to prove the safe custody of the recovered contraband the same could not be used against the accused and the chemical report was of no legal value---Circumstances established that the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Qaiser and another v. The State 2022 SCMR 1641; Ikramulah v. The State 2015 SCMR 1002; The State v. Imam Bakhsh 2018 SCMR 2039; Abdul Ghani v. The State 2019 SCMR 608; Kamran Shah v. The State 2019 SCMR 1217; Mst. Razia Sultana v. The State 2019 SCMR 1300; Faizan Ali v. The State 2019 SCMR 1649; Zahir Shah alias Shat v. State through AG KPK 2019 SCMR 2004; Haji Nawaz v. The State 2020 SCMR 687; Qaiser Khan v. The State 2021 SCMR 363; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Zubair Khan v. The State 2021 SCMR 492 and Gulzar v. The State 2021 SCMR 380 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 342---Possession of narcotic substance---Appreciation of evidence---Defence plea of false implication in case plausible---Prosecution case was that 25-kilogram charas was recovered from the possession of accused---According to the evidence of the defence witness the police asked the accused to hand over one abductee girl who was staying at his house to person "SR" and in case of failure to do so the accused would be booked in criminal cases---As per his evidence on the next day, some people of person "SR" came along with the police, the complainant of the case, to whom they handed over the said girl however despite that the accused was involved in present false case---Accused during his statement under S.342, Cr.P.C, had also exhibited certain documents including the Nikahnama and free-will affidavit in respect of the marriage of "MH" and the alleged abductee girl who was taking shelter at his house---Said boy and the girl and the accused belonged to the place wherefrom the complainant also belonged and which he also admitted during his cross-examination---Circumstances established that the prosecution had not proved its case against the accused beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

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

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Amanullah Kakar for the Appellant.

Ali Haider Saleem Addl. P.G for the State.

Date of hearing: 3rd November, 2022.

Judgment

Zulfiqar Ali Sangi, J.---Appellant Muhammad Aslam has assailed judgment dated 05.04.2021 passed by learned Additional Sessions Judge VII (MCTC) Karachi Central in Sessions Case No.469 of 2020 bearing FIR No.133 of 2020 for offence under section 6/9-C of Control of Narcotic Substances Act, 1997, registered at PS F.B. Industrial Area, Karachi where he was convicted and sentenced to suffer Life Imprisonment with fine of Rs.100,000/- (One Lac Rupees Only) and in default to further undergo one-year Imprisonment with the benefit of Section 382-B Cr.P.C.

1. Accusation against the appellant is that on 16.06.2020 at 0100 hours he was arrested from Taxi Stand, near 7-D Bus stop situated at the main road, Shahrah-e-Pakistan, Block-21, F.D. Area, Karachi by complainant ASI Ali Haider Pitafi of P.S F.B.I. Area and recovered 25 kgs charas from him and after recovery and arrest said FIR was registered at Police Station F.B. Industrial Area, Karachi.

2. After usual investigation the charge sheet against the appellant was submitted before the court having jurisdiction. After completing the legal formalities which include supplying the documents to the appellant the charge was framed against him to which he pleaded not guilty and claimed trial. At the trial, the prosecution examined five (05) witnesses including the complainant, mashir of arrest and recovery, Investigating Officer Chemical Examiner etc., who exhibited various documents and other items to prove the case of the prosecution.

3. The statement under section 342 Cr.P.C of the appellant was recorded in his statement under section 342 Cr.P.C the appellant denied the prosecution allegations and pleaded his innocence. He did not examine himself on oath, however, examined D.Ws Muhammad Khan and Ellahi Bux in his defence to disprove the case of the prosecution. After the trial, the learned trial Court convicted and sentenced the appellant through impugned judgment as stated above.

4. Learned counsel for the appellant mainly contended that the appellant is innocent and has been falsely implicated in this case; that the prosecution has failed to prove the charge against the appellant beyond the shadow of reasonable doubt; that ASI was not empowered to seize and search under CNS Act; that the P.Ws did not describe bags allegedly recovered from the appellant; that there are contradictions between the P.Ws regarding the occurrence and description of alleged narcotics etc but same were not considered by the trial court; that there is no evidence of safe custody of recovered charas from the time of its recovery up to the arrival of samples to the Chemical Examiner; that defence plea taken by the appellant was also corroborated by the D.Ws. He has prayed for setting aside the impugned judgment and acquittal of the appellant by extending him the benefit of the doubt. In support of his arguments, learned counsel has relied upon cases of Qaiser v. The State (2022 SCMR 1641), Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs, Zubair Khan v. The State (2021 SCMR 492) and The State through Regional Director ANF v. Imam Bukhsh and others (2018 SCMR 2039).

5. On the other hand, learned Addl. P.G. has supported the impugned judgment and contended that the prosecution has successfully proved its case by examining the P.Ws, who have no enmity with the appellant; that there are eye-witnesses who deposed that in their presence the appellant was arrested and caught red handed with 25 Kgs. Charas which was recovered from him; that there are no major contradiction between the evidence of the complainant and P.Ws has been pointed out and as such the impugned judgment does not call for any interference by this court since the prosecution had proved its case against the appellant beyond a reasonable doubt. He prayed for the dismissal of the appeal.

6. We have heard learned counsel for the appellant and learned Addl. P.G. and examined the record with their assistance.

7. The case of the prosecution is that on the day of the incident the complainant along with his staff was in search of the absconding accused during which when he reached the place of the incident one person holding bags in both hands was standing whom he arrested and recovered 25 Kgs of charas under mashirnama of arrest and recovery. However, the prosecution has not established whether both the bags allegedly recovered from the appellant were sealed separately or the same were sealed in one sack. Even if it is not clear from the mashirnama and the FIR P.Ws 1 and 2 during their evidence deposed that both the bags were sealed on spot but on a look at the Chemical Examiner report it reflects that only one bag was received at Chemical Laboratory and on its opening two bags were found. The complainant and P.W.2 Muhammad Adnan have deposed that they weighed the charas at a nearby LNG shop but said shop does not find a place in the sketch prepared by the investigation officer nor it has come on record where the said shop was situated and during the investigation, neither shopkeeper was examined by the investigation officer nor was produced before the trial court to strengthen the prosecution case. The complainant deposed that on reaching the police station he had made relevant entries in the book and thereafter registered the FIR. He deposited recovered charas in the Malkhana and subsequently, the FIR including other documents and the accused was handed over to the investigation officer. The complainant did not utter a single word that he had handed over the case property viz. charas to the investigation officer; however, the investigation officer deposed that on 16.06.2020 he received FIR and other documents, accused and case property viz. charas from the complainant. He has not stated a single word that after receipt of charas from the complainant he had deposited it in the Malkhana. He again stated that after taking property from Malkhana he had deposited it with the Chemical examiner. If we believe the evidence of the complainant then the investigation officer is telling a lie in respect of receiving the case property viz the charas or vice versa.

8. The investigation officer in his cross-examination deposed that on 17.06.2020 he collected case property i.e. charas from Head Moharar at the police station under entry No.5 at 0900 hours but he has not examined the Head Moharar nor the said Head Moharar was produced before the trial court to prove the safe custody of charas. Even the prosecution has failed to establish that at the relevant time who was the incharge of the Malkhana. It is the prime duty of the prosecution to ensure safe custody of the recovered charas from the time of recovery till its arrival at the office of the Chemical Examiner and its failure to do so would cast doubt on and impair the reliability of the chemical report. We have scrutinized the record and find that the prosecution has not produced strong evidence to prove the safe custody of charas. Therefore, by failing to prove the safe custody of the recovered contraband the same could not be used against the appellant in this regard and the chemical report is of no legal value. The Honourable Supreme Court in the case of Qaiser and another v. The State (2022 SCMR 1641), has observed that "In absence of establishing the safe custody and safe transmission the element of tampering cannot be excluded in this case. The chain of custody of sample parcels begins from the recovery of the narcotics by the police including the separation of representative samples of the recovered narcotics, their dispatch to the Malkhana and further dispatch to the testing laboratory. The said chain of custody and transmission was pivotal as the entire construct of the Act 1997 and the Control of Narcotic Substances (Government Analysts) Rules 2001 (Rules 2001), rests upon the report of the analyst. It is prosecutions boundend duty that such chain of custody must be safe and secure because the report of chemical examiner enjoined critical importance under the Act 1997, and the chain of custody ensure the reaching of correct representative samples to the office of chemical examiner. Any break in the chain of custody i.e. the safe custody or safe transmission of the representative samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused. Such lapse on the part of the prosecution would cast doubt and would vitiate the conclusiveness and reliability of the report of chemical examiner. Reliance can be made upon the judgments rendered by three members benches of this court i.e. Ikramulah v. The State (2015 SCMR 1002), The State v. Imam Bakhsh (2018 SCMR 2039), Abdul Ghani v. The State (2019 SCMR 608), Kamran Shah v. The State (2019 SCMR 1217), Mst. Razia Sultana v. The State (2019 SCMR 1300), Faizan Ali v. The State (2019 SCMR 1649), Zahir Shah alias Shat v. State through AG KPK (2019 SCMR 2004), Haji Nawaz v. The State (2020 SCMR 687); Qaiser Khan v. The State (2021 SCMR 363), Mst. Sakina Ramzan v. The State (2021 SCMR 451), Zubair Khan v. The State (2021 SCMR 492) and Gulzar v. The State (2021 SCMR 380)."

9. The appellant did not examine himself on oath however examined DW-1 Muhammad Khan who deposed that he had sold out GLI Corolla car Registration No. ATM-163 to the appellant and on the request of the brother of the appellant he collected a tracker report from the company which the appellant has exhibited in his statement under section 342 Cr.P.C which reflects that mostly the said vehicle was parked in the area of the police station and the said car is not the case property. The DW also exhibited the sale agreement in respect of the car and he was not cross-examined by the DDPP for the state who only put one suggestion to this witness that the said car is not the case property. The DW-2 Ellahi Bux deposed that on 15-06-2020 appellant was arrested by the police and taken the car so also other articles from there. They do not know the whereabouts of the appellant, therefore, he requested Khan Muhammad DW-1 to collect the location of the car as the tracker was installed in the car after verification stating that the car is available at the police station FBI Area where they found the car. According to the evidence of the DW the police asked him to hand over one abductee girl who was staying at the house of the appellant to Sardar Raheem Bux Bozdar and on failure to do so the appellant will be booked in criminal cases. As per his evidence on the next day, the people of Sardar Raheem Bux Bozdar came along with the police the complainant of this case to whom they handed over the said girl however despite that the appellant was involved in this false case. It is necessary to mention here that the appellant during his statement under section 342 Cr.P.C has also exhibited certain documents including the Nikahnama and free-will affidavit in respect of the marriage of Muhammad Hassan and Mai Zeenat (the alleged abductee girl who was taking shelter at his house). The said boy and the girl so also the appellant belong to Mirpur Mathelo wherefrom the complainant also belongs and which he also admitted during his cross-examination as well as admitting that his sister is also residing in the village of the appellant and he used to visit her. If we put the defence evidence in juxtaposition with the prosecution case, we give some weight to the defence case which cannot be dismissed out of hand which creates some doubt that the appellant was falsely implicated in this case by the police.

10. It is also an established principle of law that an accused person is presumed to be innocent till the time he is proven guilty beyond a reasonable doubt and this presumption of his innocence continues until the prosecution succeeds in proving the charge against him beyond a reasonable doubt on the basis of legally admissible, confidence-inspiring, trustworthy and reliable evidence. It is well-settled law that the prosecution is bound to prove its case against the accused beyond any shadow of reasonable doubt, but no such duty is cast upon the accused to prove his innocence. It has also been held by the Superior Courts that conviction must be based and founded on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The rule of giving the benefit of doubt to an accused person is essentially a rule of caution and prudence and is deep-rooted in our jurisprudence for the safe administration of criminal justice. In common law, it is based on the maxim, "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". While in Islamic criminal law it is based on the high authority of sayings of the Holy Prophet of Islam (Peace Be Upon Him): "Avert punishments (hudood) when there are doubts" and "Drive off the ordained crimes from the Muslims as far as you can. If there is any place of refuge for him (faccused), let him have his wall, because the leader's mistake in pardon is better than his mistake in punishment." The Hon'ble Supreme Court has quoted probably the latter part of the last-mentioned saying of the Holy Prophet (PBUH) in the case of Ayub Masih v. State (PLD 2002 SC 1048) "Mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent." The same principle has also been followed by the Honourable Supreme Court of Pakistan in the recent Judgment in the case of Naveed Asghar and 2 others v. The State (PLD 2021 SC 600).

2024 Y L R 2511

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Sartaj alias Sartaja---Appellant

Versus

The State---Respondent

Criminal Appeal No. 571 of 2021 and Confirmation case No. 15 of 2021, decided on 14th September, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Slight delay in lodging FIR plausibly explained---Accused was charged for committing murder of the paternal uncle of complainant by firing---First Information Report was lodged with promptitude after only one hour and 45 minutes of the incident---Such slight delay was caused because the complainant took the deceased to hospital for treatment in order to save his life and it was during that time at the hospital that he gave his S.154 Cr.P.C statement which later became the FIR and as such he had no time to consult with the police or anyone else in order to cook up a false case against the accused---Complainant's mind would have been in turmoil following the incident and at that point in time his main concern would have been the condition of his seriously injured uncle rather than putting together a false narrative in order to implicate the accused---Thus, it was found that there had been hardly any delay in lodging the FIR and even such slight delay had been fully explained---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account proved---Accused was charged for committing murder of the paternal uncle of complainant by firing---Ocular account of the incident had been furnished by complainant, and the son and nephew of the deceased---From the evidence it transpired that complainant was related to the deceased and that there appeared to be some disputes between the accused and the deceased, however the complainant/eye-witness had no dispute or enmity with the accused---Thus, mere relationship of witness to the deceased was no reason to discard his evidence which had to be judged on its own worth---From the evidence of said eye-witness, it was clear that he knew the accused before the incident and it was a day light incident from relatively closed range and thus there was no case of mistaken identity and no need to hold an identification parade in order to determine the identity of the accused---Presence of said witness at the scene was corroborated by other witnesses---Said eye-witness was not a chance witness and he lived in the area and had every reason to accompany the deceased who was his uncle, to see his plot along with other relatives---Said witness gave his S. 154 Cr.P.C statement within one hour and 45 minutes of the incident which was not significantly improved on during his evidence---Said witness named the accused in his FIR along with the other eye-witnesses---Complainant gave his evidence in a natural manner and was not dented at all during cross-examination and as such his evidence was found to be reliable, trust worthy and confidence inspiring especially in respect of the identity of the accused---Accused could be convicted on the evidence of such eye-witness alone though it would be of assistance by way of caution, if there was some corroborative/supportive evidence---Other eye-witness was the son of deceased and his evidence corroborated complainant's evidence in all material aspects---Said witness was named in the FIR as an eye-witness---Another eye-witness was a nephew of the deceased and his evidence corroborated complainant and evidence of son of deceased in all material respects---Said witness was named in FIR as an eye-witness and his S. 161 Cr.P.C statement was recorded on the same day of the incident on which no material improvements were made during his evidence---Appeal against conviction was dismissed accordingly.

Ghulam Safdar v. The State 2009 SCMR 916; Niazuddin v. The State 2010 SCMR 1752; Sheraz Khan v. The Haji Said Akbar 2010 SCMR 1772; Amal Sherin v. The State PLD 2004 SC 371; Muhammad Waris v. The State 2008 SCMR 784; Muhammad Ilyas v. The State 2011 SCMR 460; Noor Muhammad v. The State 1999 SCMR 2722; Islam Sharif v. The State 2020 SCMR 690; Zia Ullah v. The State 2021 SCMR 1507 and Muhammad Javaid v. The State 2007 SCMR 324 ref.

Dildar Hussain v. Muhammad Afzaal alias Chala PLD 2004 SC 663; 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.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Substitution---Scope---Accused was charged for committing murder of the paternal uncle of complainant by firing---It did not appeal to logic, commonsense or reason that a son would let the real murderer of his father get away scot free and falsely implicate an innocent person by way of substitution---Appeal against conviction was dismissed accordingly.

Muhammed Ashraf v. State 2021 SCMR 758 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Medical evidence, supporting eye-witnesses' evidence---Accused was charged for committing murder of the paternal uncle of complainant by firing---Medical evidence and medical reports fully supported the eye-witness/prosecution evidence---Medical evidence confirmed that the deceased died from at least three if not four gunshot wounds to the abdomen---No blackening was found around the wounds as the examination took place two days after the incident and the deceased's wounds were already covered with dressings and would have been cleaned, so it could not be proved that the accused did not fire at the deceased from a relatively close range as deposed by the eye-witnesses---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused was charged for committing murder of the paternal uncle of complainant by firing---Record showed that the empties which were recovered at the scene led to a positive Forensic Science Laboratory even before the pistol was recovered from the Police Station of another Province where it had been recovered from the accused in a separate case---When the pistol was sent with the already recovered empties it was found that all 7 empties matched the pistol which was found in the possession of the accused for which he was under arrest in another Province which directly linked the accused to the murder of the deceased---Accused even had a license for the weapon which was his defence in the case in another Province, however he claimed in the trial that the weapon was foisted on him by the police which simply was not believable based on the particular facts and circumstances of the case---Appeal against conviction was dismissed accordingly.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Police witnesses, evidence of---Reliance---Accused was charged for committing murder of the paternal uncle of complainant by firing---Record showed that it had not been proven through evidence that any particular police witnesses had any enmity or ill will towards the accused or had reason to falsely implicate him in the case for instance by planting a pistol on him---In such circumstances the evidence of the police witnesses could be fully relied upon---Appeal against conviction was dismissed accordingly.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Minor contradictions in the statements of witnesses---Inconsequential---Accused was charged for committing murder of the paternal uncle of complainant by firing---All the witnesses were consistent in their evidence and even if there were some contradictions in their evidence same contradictions 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---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the time the eye-witnesses and the deceased were walking to the deceased's plot, to the accused shooting the deceased because he had filed FIR's against him to the accused absconding, to the death of the deceased on account of the firearm injuries which he received from the accused to the arrest of the accused in another Province and recovery of his pistol, and to his pistol producing a positive Forensic Science Laboratory Report with the empties recovered at the crime scene---Appeal against conviction was dismissed accordingly.

Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Sentence, quantum of---Accused was charged for committing murder of the paternal uncle of complainant by firing---With regard to sentencing, it was noted that the motive for the murder had been asserted and proven in that the accused wanted to take revenge from the deceased for lodging FIR's against him and the Court thus he shot the accused four times in a brutal and pre mediated manner in front of his family members and left him for dead---Accused was a habitual hardened criminal with at least 60 cases registered against him and the Court could not find any mitigating circumstance which would warrant a reduction in his sentence from the death penalty to life imprisonment and as such his death sentence was maintained---Appeal was dismissed accordingly.

Jehangir Rahujo and Ubedullah Malik for Appellant.

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

Mushtaq Ahmed Jahangiri for the Complainant.

Date of hearing: 8th September, 2022.

Judgment

Mohammad Karim Khan Agha, J.---The appellant Sartaj alias Sartaja son of Mir Dad Khan was tried in the Court of IV Additional Sessions Judge/ Model Criminal Trial Court (South) Karachi under Crime No. 960/ 2012 under section 324 read with Section 302 P.P.C registered at PS Jackson, Karachi vide judgment dated 26.01.2021 and was convicted for an offence punishable under section 265-H(ii) Cr.P.C and awarded death sentence as Tazir under Section 302(b) P.P.C subject to confirmation by this court.

1. The brief facts of the prosecution case are that on 21.12.2012 at 1745 hours SIP Ahmed Khan of PS Jackson Karachi had recorded 154 Cr.P.C. statement of complainant Aziz-ur-Rehman son of Muhammad Tarig at Zia-u-Din Hospital, Karachi with regard to the incident of firing upon his uncle namely Khalid Pervez and converted the same into FIR No.960/2012 under section 324 P.P.C. On 21.12.2012 complainant Aziz ur Rehman along with his brother Shah Fahad, paternal uncle Khalid Pervaiz and cousin Inayat-ur-Rehman son of Khalid Pervaiz had proceeded from their house towards their plot situated at Hussain Haroon Road, and when they reached near Noor-ul-Huda Masjid, Gulshan-e-Sikandarabad, Block-5, Kemari Karachi at 1600 hours accused Sartaj Khan son of Meer Dad Khan intercepted them and threatened Khalid Pervaiz that he would not spare him as he (Khalid Pervaiz) registered FIRs of dacoity and extortion against him. The complainant alleged in the FIR that accused Sartaj took out pistol and with intention of killing and made straight firing upon Khalid Pervaiz who sustained 3/4 bullet shots and fell down, while accused escaped away. Thereafter complainant along with his brother and cousin had shifted injured Khalid Pervaiz to Ziauddin Hospital for treatment. The complainant alleged that accused Sartaj Khan due to previous differences/ disputes with Khalid Pervaiz made straight firing upon him with intention to kill him, hence this FIR.

2. After registration of FIR investigation was entrusted to SIP Raja Intisar who visited the place of incident and secured empties of 9 MM pistol, blood stained mud from the spot and prepared memo. of recovery and site inspection, recoded 161 Cr.P.C. statements of the witnesses. During medical treatment on 24.12.2012 Khalid Pervaiz succumbed to his injuries and died at Hospital. After investigation the I.O. submitted charge sheet against the accused, however, showing him as absconder and recommended him for 512 Cr.P.C. proceedings.

3. On 13.04.2013, accused Sartaj Khan had reportedly been arrested by the police of City Mardan, Province KPK in another Crime No.416 of 2013 for carrying an unlicensed weapon. On receiving the information of arrest of absconding accused Sartaj investigation was reopened and after following all legal formalities /obligations the accused on 29.04.2013 was re-arrested in present crime by police from Karachi who brought his custody from District Jail Mardan to PS City Mardan from where he was shifted to Karachi and produced before the concerned Magistrate for trial.

4. The accused pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined 10 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied the allegations levelled against him and claimed false implication by the police in collusion with the complainant. The appellant however did not examine himself on oath and did not call any DW's in support of his defence case.

5. After hearing the parties and appreciating the evidence on record, the trial court convicted the appellant and sentenced him as set out earlier in this judgment; hence, the appellant has filed this appeal against his conviction.

6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 16.10.2021 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

7. Learned counsel for the appellant has contended that there was an unexplained delay in filing the FIR which lead to the complainant and the police cooking up a false case against the appellant on account of enmity; that the alleged eye-witnesses had made up the story on account of enmity; he was not arrested on the spot but was instead arrested in Mardan in KPK where he had been in hospital at the time of the incident; that no recovery was made from him and the pistol was foisted on him by the police and that for any or all of the above reasons he should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions, he placed reliance on the case of Ghulam Safdar v. The State (2009 SCMR 916).

8. On the other hand learned Additional Prosecutor General Sindh and learned counsel for the complainant have contended that the evidence of the eye-witnesses is reliable, truthful and confidence inspiring and is to be believed; that empties recovered at the spot were matched with the pistol which was recovered from the accused when he was arrested in an Arms case in KPK; that the medical evidence supported the ocular evidence; that the appellant had a motive for the murder and had murdered the deceased in cold blood and as such the impugned judgment should be upheld and the appeal be dismissed with the confirmation reference being answered in the affirmative. In support of his contentions, he placed reliance on the cases of Niazuddin v. The State (2010 SCMR 1752), Sheraz Khan v. The Haji Said Akbar (2010 SCMR 1772), Amal Sherin v. The State (PLD 2004 SC 371), Dildar Hussain v. Muhammad Afzaal alias Chala (PLD 2004 SC 663), Muhammad Waris v. The State (2008 SCMR 784), Muhammad Ilyas v. The State (2011 SCMR 460), Noor Muhammad v. The State (1999 SCMR 2722), Islam Sharif v. The State (2020 SCMR 690), Zia Ullah v. The State (2021 SCMR 1507) and Muhammad Javaid v. The State (2007 SCMR 324).

9. We have heard the arguments of the learned counsel for the appellant, learned Additional Prosecutor General Sindh and learned counsel for the complainant and gone through the entire evidence which has been read out by the learned counsel for the appellant, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

10. Based on our reassessment of the evidence of the PW's especially the medical evidence and other medical reports, recovery of empties and blood at the crime scene we find that the prosecution has proved beyond a reasonable doubt that Khalid Pervaiz (the deceased) was shot and seriously injured by firearm on 21.12.12 at about 1600 hours near Noor-ul-Huda Masjid Gulshan-e-Sikadarabad Block 5 Kamarai Karachi and died on account of those firearm injuries on 24.12.12 in hospital.

11. The only question left before us therefore is whether it was the appellant who seriously injured the deceased by firearm at the said time, date and location which lead to his death on 24.12.12?

12. After our reassessment of the evidence we find that the prosecution has proved beyond a reasonable doubt the charge against the appellant keeping in view that each criminal case must be decided on its own particular facts and circumstances for the following reasons;

(a) That the FIR was lodged with promptitude after only one hour and 45 minutes of the incident and this slight delay was caused because the complainant took the deceased to hospital for treatment in order to save his life and it was during this time at the hospital that he gave his S.154 Cr.P.C statement which later became the FIR and as such he had no time to consult with the police or anyone else in order to cook up a false case against the accused. 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 his seriously injured uncle rather than putting together a false narrative in order to implicate the accused. Thus, we find that there has been hardly any delay in lodging the FIR and even such slight delay has been fully explained.

(b) We find that the prosecution's case primarily rests on the evidence of the eye-witnesses to the murder of the deceased and, whether we believe their evidence whose evidence we shall consider in detail below;

(i) Eye-witness PW 2 Azizur Rehman. He is the complainant and nephew of the deceased. According to his evidence on 21.12.12 he along with Shah Fahad, Inayatur Rehman and the deceased were going by foot to the deceased plot situated near Noorul Huda Masjid and near to there at about 4pm the accused appeared and asked the deceased why he had registered false FIR's against him for extortion and dacoity and he will take revenge whereupon the accused with a 9mm pistol fired at the deceased due to which the deceased sustained 4 to 5 bullets who then fell to the ground due to his injuries. The accused pointed his weapon at them before escaping from the scene of the incident. There upon the deceased was shifted to hospital in injured condition in a Suzuki pick up.

From the evidence it transpires that this witness is related to the deceased and that there appears to be some disputes between the accused and the deceased however the eye-witness had no dispute or enmity with the accused and thus his mere relationship to the deceased is no reason to discard his evidence which has to be judged on its own worth. In this respect reliance is placed on the cases of Amal Sherin (Supra) and Dildar Hussain (Supra).

It is clear from this eye-witnesses evidence that he knew the accused before the incident and it was a day light incident from relatively close range and thus there is no case of mistaken identity and no need to hold an identification parade in order to determine the identity of the accused. His presence at the scene is corroborated by PW 1 Fateh Muhammed Khan, PW 3 Innayat-ur-Rehman and PW 4 Shah Fahad

This eye-witness was not a chance witness and he lived in the area and had every reason to accompany the deceased who was his uncle to see his plot along with other relatives. He gave his S.154 Cr.P.C statement within one hour and 45 minutes of the incident which was not significantly improved on during his evidence. He named the accused in his FIR along with the other eye-witnesses. He gave his evidence in a natural manner and was not dented at all during cross-examination and as such we find his evidence to be reliable, trust worthy and confidence inspiring and believe the same especially in respect of the identity of the accused.

We can convict on the evidence of this eye-witness alone though it would be of assistance by way of caution if there is some corroborative/ supportive evidence. In this respect reliance is placed on the case of Muhammad Ehsan v. The State (2006 SCMR 1857). As also found in the cases of 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). That what is of significance is the quality of the evidence and not its quantity and in this case we find the evidence of this eye-witness to be of good quality and believe the same. In this case however there is more than one eye-witness.

(ii) Eye-witness PW 3 Innayat-ur-Rehman. He is the son of the deceased. His evidence corroborates PW 2 Azizur Rehman's evidence in all material respects. He is named in the FIR as an eye-witness and gives evidence of PW 2 Azizur Rehman recording his S.154 Cr.P.C statement at the hospital where they took the deceased for treatment as further corroborated by PW 7 Ahmed Khan who was the police officer who recorded PW 2 Azizur Rehman's S.154 Cr.P.C statement at the hospital. The same considerations apply to his evidence as the evidence of PW 2 Azizur Rehman.

(iii) Eye-witness PW 4 Shah Fahad. He is a nephew of the deceased. His evidence corroborates PW 2 Azizur Rehman's and PW 3 Innayat-ur-Rehman's evidence in all material respects. He is named in the FIR as an eye-witness and recorded his S.161 Cr.P.C statement on the same day as the incident on which no material improvements were made during his evidence. The same considerations apply to his evidence as the evidence of PW 2 Azizur Rehman and PW 3 Innayat-ur-Rehman.

Thus, based on our believing the evidence of the PW eye-witness what other supportive/ corroborative material is there against the appellant? It being noted that corroboration is only a rule of caution and not a rule of law. In this respect reliance is placed on the case of Muhammad Waris v.The State (2008 SCMR 784)

(c) That it does not appeal to logic, commonsense or reason that a son would let the real murderer of his father get away scott free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf v. State (2021 SCMR 758)

(d) That the medical evidence and medical reports as discussed above fully support the eye-witness/ prosecution evidence. It confirms that the deceased died from at least three if not four gunshot wounds to the abdomen. There was no blackening around the wounds as the examination took place 2 days after the incident and the deceased's wounds were already covered with dressings and would have been cleaned so it cannot be proven that the accused did not fire at the deceased from a relatively close range as deposed by the eye-witnesses.

(e) That the evidence of PW 10 Mukhtiar Ali, PW 13 Shah Nawaz and PW 14 Muhammed Ameer states that the accused, who had already been declared an absconder in this case, had been arrested in Mardan KPK pursuant to another FIR for an offence in KPK for having an illegal firearm and thus after carrying out all legal obligations/formalities they travelled to KPK about 6 months aftert the incident where they arrested the appellant in this case and brought him back to stand trial. They also recovered from the Mardan police the fire arm which had been recovered from the accused in KPK and brought the same back to Karachi which was made as case property. All necessary entries/ permissions regarding their trip to KPK and arrest of the accused in KPK have also been exhibited in support of their evidence. They all gave their evidence in unison in a straight forward manner and were not dented during cross-examination and as such there can be no doubt that the accused was arrested in KPK whilst in custody in another case and was brought back to Karachi with the recovered pistol and we believe their evidence.

(f) That the empties which were recovered at the scene lead to a positive FSL even before the pistol was recovered from the KPK police station where it had been recovered from the accused in a separate case. That when the pistol was sent with the already recovered empties it found that all 7 empties matched the pistol which was found in the possession of the accused for which he was under arrest in KPK which directly links the accused to the murder of the deceased. The accused even had a license for the weapon which was his defence in the case in KPK however he claimed in this trial that the weapon was foisted on him by the police which simply is not believable based on the particular facts and circumstances of this case.

(g) That it has not been proven through evidence that any particular police PW's had any 'enmity or ill will towards the appellant and had no reason to falsely implicate him in this case for instance by planting a pistol on him and in such circumstances it has been held that the evidence of the police PW's can be fully relied upon and as such we rely on the police evidence. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474).

(h) That nearly all required police memos. and entries have been exhibited which fully support the evidence of the PW's and the prosecution case.

(i) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence we consider these contradictions 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 appellant. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 SC 669). The evidence of the PW's provides a believable corroborated unbroken chain of events from the time the eye-witnesses and the deceased were walking to the deceased's plot to the accused shooting the deceased because he had filed FIR's against him to the accused absconding to the death of the deceased on account of the firearm injuries which he received form the accused to the arrest of the accused in KPK and recovery of his pistol to his pistol producing a positive FSL report with the empties recovered at the crime scene.

2024 Y L R 2537

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Sher muhammad---Petitioner

Versus

Province of Sindh through Member Land Utilization Department, and 7 others---Respondents

C.P. No. D-526 of 2022, decided on 21st February, 2024.

Colonization of Government Lands Act (V of 1912)---

---Ss. 10 & 24---Sindh Land Revenue Act (XVII of 1967), S.52---Constitution of Pakistan, 199---Supervisory/ remedial jurisdiction of High Court---Scope---Cancellation of grant of land---Legality---Failure of Member, Land Utilization Department to consider the evidence available on the record---Effect---Legal weightage and extent of the entries made in the Record of Rights---Scope---Member, Land Utilization Department (Respondent No.1) was only tasked with revisiting case of respondent No.8's legal heirs and making a decision in line with the law,but not the case of petitioner, however, respondent No.1, through his order, determined that neither petitioner nor respondent No.8 could prove their case, leading to the denial of their request for the restoration or re-grant of land---Petitioner had not requested re-grant of land in question as it had already been granted to him, therefore, order did not provide any reasoning for cancelling petitioner's grant---Comprehensive documentary evidence and official correspondence were not considered by respondent No.1 in his order---Entries in record of rights, once entered, carried a strong legal weight and any party disputing the entry must provide sufficient evidence to the contrary or follow the lawful procedure to substitute a new entry, which ensures stability and reliability of land records, providing a degree of certainty and security to landholders---High Court under Art.199 of the Constitution has the authority to supervise and correct any actions taken by a tribunal, court, or authority that exceed their jurisdiction, powers or scope of law or if they commit an error apparent on the face of the record and this constitutional jurisdiction allows High Court to examine the legality of an order passed by a special court or tribunal constituted under a special enactment, and if order is found to be illegal, High Court has power to rectify, rescind, or alter it, as any order passed in violation of law can be questioned and quashed under the constitutional jurisdiction of the High Court, which ensures that any harm or mischief arising from an illegal order can be effectively remedied, thereby upholding the rule of law and ensuring justice---Constitutional petition was allowed accordingly.

PLD 1987 SC 123; PLD 2009 SC 210; Horticultural Society of Pakistan and another v. Province of Sindh and others 2005 CLC 1877; Messrs Super Drive-in-Ltd. Through Managing Director and others v. Province of Sindh through Member (LU) and others 2012 CLC 117; Naik Muhammad v. Mazhar Ali and others 2007 SCMR 112 and Collector of Customs (Valuation) and another v. Karachi Bulk Storage and Terminal Ltd. 2007 SCMR 1357 rel.

Nisar A. Bhanbharo for the Petitioner.

Nemo for Respondent No. 8.

Ahmed Ali Shahani, A.A.G. for Respondents Nos. 1 to 7.

Date of hearing: 1st February, 2024.

Judgment

Arbab Ali Hakro, J.--- Through this petition, the petitioner has prayed as under: -

a) It be declared that the impugned Order dated 22.3.2022, passed by respondent No.1 is without jurisdiction as matter was already decided by the respondent No.2 on merit between the petitioner and the respondent No.8 vide Order dated 28.10.2009, therefore, impugned Order is illegal, unlawful, unconstitutional, coram non-judice.

b) It be declared that the respondents Nos.1 and 2 has power under the West Pakistan Land Revenue Act, 1967 and West Pakistan Board of Revenue, Act, 1957, to decide the land dispute matter of the petitioner and respondent No.8 and learned District Judge Naushahro Feroze has no power in law to refer the matter to respondent No.2 to decide in accordance with law.

c) Declare that the learned District Judge Naushahro Feroze respondent No.3 has no jurisdiction under the law to refer the matter to the respondent No.2 again to decide the matter in accordance with law.

d) To suspend the operation of impugned Order dated 22.3.2022 and finally set-aside the same which is not sustainable in law.

e) Restrain the respondents Nos.5, 6, 7, 8 not to interfere in peaceful possession of the petitioner till the final decision of the instant petition.

1. The brief facts leading to the filing of this petition are that an agricultural land measuring 12-00 acres and part of U.A. No.166, situated in Deh Jaindo Rajper Taluka Mehrabpur (referred to as the "subject land"), was granted in favour of respondent No.8 in the year 1957-58 on installments. Respondent No.8 paid eight installments but failed to pay the remaining two, resulting in cancellation of his grant on April 11, 1968. In 1984, respondent No.8 filed an application for restoration of his grant upon payment of remaining installments, which was declined. It is asserted that respondent No.6, in an open Katcheri, granted the subject land to the petitioner via an order dated October 28, 2004. Subsequently, respondent No.7 issued Form-A in favour of the petitioner, who deposited an initial amount of Rs.4,924/-and possession of the subject land was handed over to the petitioner. In addition to the petitioner, 23 other grantees were also granted land. The details of the subject land were recorded in Form VII-B on March 7, 2005. The petitioner also deposited a challan of Rs.600/- to demarcate the subject land. Following this, the Settlement Survey Officer carried out the demarcation of the subject land and created new survey numbers bearing No.526 (03-28 acres), 527 (04-20 acres), 528 (03-32 acres), totalling 12-00 acres, formed out of U.A. No.166 bearing Entry No.59 (Ghat Wadh Form) dated November 12, 2007. A Field Book Otara was also issued in favour of the petitioner. It is further pleaded that respondent No.8, being aggrieved by the grant of the subject land to the petitioner, filed a Land Revenue Appeal before respondent No.5, which was dismissed via an order dated May 26, 2006, being hopelessly time-barred. Subsequently, respondent No.8 filed another appeal bearing No.SROA-90/2006 before respondent No.2, who disposed of the appeal via an order dated October 28, 2009, with directions to hand over the subject land to them, who are in physical possession of the same. The brothers and legal heirs of respondent No.8 filed F.C. Suit No.240/2014 against the Order dated October 28, 2009, passed by respondent No.2. However, the suit was dismissed vide a judgment dated May 3, 2018, and a decree dated May 08, 2018. This judgment and decree were then challenged by the legal heirs of respondent No.8 by filing Civil Appeal No.138/2018 before the appellate court, which remanded the suit to the trial court with directions to proceed in accordance with the law. After remand, the trial court again dismissed the suit via a judgment and decree dated February 27, 2019. The brothers and legal heirs of respondent No.8 again challenged the above judgment and decree through Civil Appeal No.90/2019 before the District Judge Naushahro Feroze, who disposed of the appeal via a judgment and decree dated October 9, 2019, with directions to respondent No.2 to re-examine the case of respondent No.8 and decide the same in accordance with the law. However, the matter was entrusted to respondent No.1, who, after hearing, held that both respondent No.8 and the petitioner failed to establish their case and thereby cancelled the grant of the petitioner. Hence, this petition was filed.

2. At the outset, the learned counsel representing the petitioner submits that the matter was referred to respondent No.1 for re-examination of the case of the legal heirs of respondent No.8, who was the allottee of the subject land. However, he contends that respondent No.1 has unlawfully determined that the petitioner is not entitled to the re-grant of the subject land. The counsel further argues that respondent No.1 failed to provide findings on the land grant to the petitioner on October 28, 2004, by respondent No.4. He also asserts that respondent No.1 lacks jurisdiction to decide the matter based on the direction of the learned District Judge/appellate authority, as the matter was already decided on merits between respondent No.8 and the petitioner via an Order dated October 28, 2009. Lastly, the counsel submits that the impugned Order is illegal, without lawful authority, and is therefore liable to be set aside. He placed reliance on PLD 1987 SC 123 and 2009 SC 210.

3. The learned Assistant Advocate General contends that respondent No.1 has lawfully exercised the jurisdiction vested under the law. He argues that the subject land, which was granted under the terms and conditions of the Land Grant Policy, has not been complied with and that the T.O. Form was not issued in favour of the petitioner. He further contends that the subject land has been lawfully retrieved and returned to the pool of State land. As such, he asserts that the petition is not maintainable and is liable to be dismissed.

4. We have heard Counsel for the Petitioner and learned Assistant Advocate General and have perused the record with their assistance.

5. In the case at hand, respondent No.1 has revoked the grant previously given to the petitioner. This decision was made while adjudicating an appeal, following the directives of an appellate court. These directives were part of a judgment delivered on October 9, 2019, in Civil Appeal No. 90/2019. To fully comprehend the intricacies of the case, it is crucial toreproduce the said directives here under: -

"Further, his application/ proceedings for acceptance of the last two installments and recalling/ re-allotment of the land in question to him are pending before revenue authorities, therefore, the Board of the Revenue Sindh, is directed to re-examine the case of the appellants/plaintiffs who are legal heirs of the lawful allotteeAllah Wadhayo and decide the same in accordance with the law within three months from the date of this judgment."

1. The directives above clearly indicate that respondent No.1 was tasked with revisiting the case of respondent No.8's legal heirs and making a decision in line with the law, not the case of the petitioner. However, Respondent No.1, through the impugned Order, determined that neither the Petitioner nor Respondent No.8 could prove their case, leading to the denial of their request for the restoration or re-grant of land. Notably, the petitioner did not request re-grant of the land in question as it had already been granted to him. The impugned Order does not provide any reasoning for cancelling the petitioner's grant. Interestingly, Paragraphs Nos.4 and 5 of the impugned Order appear to support the petitioner, making it beneficial to reproduce these paragraphs hereunder: -

"4. I have considered the arguments of learned counsel for the parties and gone through the entire material available on record. The attested copy of "A" Form/record shows that on 23.01.1957, an area of 12-00 acres land out of U.A. No.166 of Deh Jaindo Rajper Taluka Mehrabpur was granted in favour of appellant from Kharif 1957-1958 on installment basis. As per record, the appellant only paid 08 instalments, but thereafter failed to pay remaining last two instalments and due to failure in payment of such installments, the grant of 12-00 acres land of appellant was cancelled under Order of A.R.O.'s No.550 dated 11.4.1968 w.e.f Rabi 1967/68. It is important to mention here that instead to challenging the above Order, the appellant filed an appeal before the Executive District Officer (Rev.) Naushahro Feroze against the Order dated 28.10.2004, passed by the District Officer (Revenue) Naushahro Feroze regarding grant of land in question in favour of respondent No.1. After hearing arguments, vide Order dated 21.5.2006, the Executive District Officer (Rev.) Naushahro Feroze dismissed the appellant of appellant. After that, the said Order dated 21.5.2006 was challenged before this court and on 28.10.2009, the Order of E.D.O. (Revenue) Naushahro Feroze was set aside by this court with the directions to hand over the land in accordance with law to who has the physical possession of land. Thereafter, on 08.12.2014, Kouro Khan, through his L.R.'s, filed a suit for declaration, cancellation of false entry of revenue record of rights and permanent injunction in the Court of Senior Civil Judge Mehrabpur which was numbered as First Class Suit No.240/2014 (old) F.C. Suit No.107/2017 (New), which was contested by the respondent side and vide judgment dated 03.5.2018, the learned Senior Civil Judge dismissed the said suit. The appellant challenged the above judgment/decree before the appellate court by filing Civil Appeal, which was numbered as Civil Appeal No.90/2019 and vide Order dated 09.10.2019, the Hon'ble District Judge/Civil Appellate Court Model Court Naushahro Feroze set aside the Judgment of Senior Civil Judge Naushahro Feroze with the directions to the Board of Revenue to re-examine the case of appellant legal heirs and then to decide the same in accordance with law. It is important to mention here that the District Officer Rev. Naushahro Feroze, in open Katchery after vide publicity, had granted the land in favour of respondent No.1, and it was the responsibility of the appellant to appear, but he failed to participate in the same.

1. It is pertinent to mention here that as per letter 226/2021 Mehrabpur dated 10.3.2021, issued by the Mukhtiarkar (Revenue), Mehrabpur, the side inspection of the land in question was conducted by the Supervising Tapedar of the beat, who in his report has stated that as per Entry No.32 dated 12.01.2009 of VF-VII-B of Deh Jando Rajper, the land was granted to respondent No.1. The report further shows that another Entry No.160 dated 08.03.2012 duly signed by the Assistant Commissioner, Mehrabpur, on 08.3.2012 in respect of land bearing S. Nos.526, 527 and 528 of Deh Jando Rajper, Taluka Mehrabpur, was also entered in the VF-VII Part-A in the name of respondent No.1 Sher Muhammad, son of Ali Muhammad Rajper. As per said report, there are houses of Meraj Community on Survey No.526, and they are residing with the consent of owner Sher Muhammad, son of Ali Muhammad Rajper. The record shows that respondent No.1 is in peaceful possession of the land in question, and the appellant has failed to bring on record any documentary proof of cultivating the land or payment of land revenue. Moreover, the learned Senior Civil Judge, Naushahro Feroze, in his judgment dated 03.5.2018, has mentioned that "No proof in of cultivation of land or payment of land revenue, receipts of instalments were brought on record".

[Underlined supplied for understanding]

1. The impugned Order, regrettably, does not show that the petitioner was given a chance to argue why his grant should not be cancelled or why his request for re-grant of the subject land should not be declined. Even otherwise, there is substantial documentary evidence and admitted facts supporting the petitioner's claim. The grants/allotments made under Section 10 of the Colonization and Disposal of Government Lands Act, 1912 can be cancelled/resumed in accordance with the provisions of Section 24 of the Act, 1912.It would also be expedient to examine the Section 24, of the Colonization and Disposal of Government Lands Act, 1912, which is reproduced as follows:

"24. Power of imposing penalties for breaches of conditions.--- When the Collector is satisfied that tenant in possession of land has committed a breach of the conditions of his tenancy, he may, after giving the tenant an opportunity to appear and state his objections---

(a) impose on the tenant a penalty not exceeding one hundred rupees; or

(b) order the resumption of the tenancy:

Provided that if the breach is capable of rectification, the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice."

1. Bare reading of the aforesaid Proviso to the provision of law itself shows that the Collector shall not impose any penalty or order the resumption of the tenancy unless he has issued a written notice requiring the tenant to rectify the breach within a reasonable time, not being less than one month, to be stated in the notice and the tenant has failed to comply with such notice. In the case of Horticultural Society of Pakistan and another v. Province of Sindh and others (2005 CLC 1877), it was held by the division bench of this Court that:-

"Be that as it may it is clear from the terms of section 24 of the Colonization of Government Lands Act itself that the breach being capable of rectification, the Collector in the first instance was mandated to grant reasonable time to the petitioner to rectify the breach. In the event of petitioners' inability to do so within aforesaid time he was required to independently apply his mind and decide either to impose a penalty or order resumption of tenancy. He failed to perform both the statutory obligations and proceeded to act under dictation from the Chief Minister. Even the elementary principles of natural justice were denied. Accordingly we are constrained to hold that the cancellation of lease was mala fide, void and inoperative." (pg. 1880).

1. In the case of Messrs Super Drive-In-Ltd. Through Managing Director and others v. Province of Sindh through Member (L.U.) and others (2012 CLC 117), it was held by a division bench of this Court that:

"It From perusal of the provisions of section 24, it appears that before passing any order of cancellation, imposing penalty or resumption of the tenancy of the land a show-cause notice is required to be issued to the lessee requiring him to rectify the breach within a reasonable time, which shall not be less than one month, to be stated in the notice. From perusal of the notice as referred to hereinabove, it appears that in spite of remand by the learned Member Board of Revenue, the Deputy Commissioner did not bother to issue any show-cause notice in terms of section 24 of Colonization of Government Lands Act, 1912, whereas only a notice of hearing was issued, which in our view is not proper compliance of the provisions of section 24. We are of the view that the respondents have not conducted themselves fairly, honestly and in a transparent manner, which is required from any public functionary while discharging their public functions".

1. Moreover, the subject land was granted to the petitioner in an open katchery by the D.D.O. (Rev.) Naushahro Feroze, according to the Order dated 28.10.2004. The Mukhtiarkar (Estate) also issued an A-Form in the petitioner's favour, indicating the payment of ten instalments from 2006 to 2015. Entry No.369, dated 07.3.2005, was mutated in the petitioner's favour based on the aforementioned Order. The petitioner also submitted a copy of the Mukhtiarkar (Estate) letter to the Executive Engineer Irrigation, requesting the inclusion of the subject land in the water list. The Assistant Engineer Kandiaro Sub-Division-I responded by issuing such a water list. The Settlement Survey Officer also demarcated the subject land, creating new Survey Nos.526 (03-28 Acres), 527 (04-20 Acres), and 528 (03-32 Acres), totalling 12 Acres. This was then recorded as entry No.59 in the Ghat Wadh Form. Despite the comprehensive documentary evidence and official correspondence, none of these were considered by respondent No.1 in the impugned Order. The official respondents have not denied or controverted the above documentary evidence. However, when respondent No.7 was directed to produce the entire record regarding the subject land, he responded by stating that their office records were burned during the riots on 27.12.2007, following the assassination of Mohtarma Benazir Bhutto. He produced a copy of the FIR to that effect.

2. Notwithstanding, Section 52 of the Sindh Land Revenue Act, 1967, establishes a presumption regarding the correctness of entries in the record of rights. According to this provision, an entry in the record of rights is presumed true until it is either proven false or a new entry is lawfully substituted. This presumption is significant as it places the burden of proof on the party challenging the entry rather than the party defending it. It means that the record of rights, once entered, carries a strong legal weight. Any party disputing the entry must provide sufficient evidence to the contrary or follow the lawful procedure to substitute a new entry. This provision ensures the stability and reliability of land records, providing a degree of certainty and security to landholders.

3. Under Article 199 of the Constitution, a High Court has the authority to supervise and correct any actions taken by a Tribunal, Court, or Authority that exceed their jurisdiction, powers, or scope of law or if they commit an error apparent on the face of the record. This constitutional jurisdiction allows the High Court to examine the legality of an order passed by a special court or tribunal constituted under a special enactment. If the Order is found to be illegal, the High Court has the power to rectify, rescind, or alter it. Furthermore, any order passed in violation of the law can be questioned and quashed under the constitutional jurisdiction of the High Court. This ensures that any harm or mischief arising from an illegal order can be effectively remedied, thereby upholding the rule of law and ensuring justice. In this regard, reliance can be placed on the case of Naik Muhammad v. Mazhar Ali and others (2007 SCMR 112), wherein the Supreme Court of Pakistan has held as under-

"5. We have considered the submissions and have perused the record' The learned High Court has taken a pain to compare the qualifications and disqualifications of the petitioner and the respondent No.1 in terms of rule 17 as depicted from paras.7 to 10 of the impugned judgment and have come to the conclusion that the Order of the learned Member Board of Revenue was not in consonance with the mandatory provisions of West Pakistan Revenue Rules, 1968 whereas the Executive District Officer (Revenue) had given cogent reasons on the basis of the evidence on record and appointed respondent No.1. The learned Member, Board of Revenue had reversed the findings of fact recorded by Executive District Officer (R) in his Order while exercising his revisional power without meeting the reasoning of the appellate court. The contention of the learned counsel for the petitioner that High Court has no jurisdiction to take the cognizance of the matter in the discretion exercised by the Member, Board of Revenue in constitution jurisdiction has no force in view of law laid down by this court in various pronouncements. See Muhammad Yousif's case 1996 SCMR 1581 and Haji Noorwar Jan's case PLD 1991 SC 531. The relevant observation is as follows:--

2024 Y L R 2561

[Sindh (Hyderabad Bench)]

Before Omar Sial, J

Muhammad Bilal and others---Applicants

Versus

The State and another---Respondents

Criminal Bail Applications Nos. S-379, S-387, S-388, S-391, S-398, S-399, S-400, S-401, S-406, S-416, S-428, S-444, S-445, S-450, S-459, S-474 and S-495 of 2024, decided on 29th May, 2024

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 409, 419, 420, 467, 468, 471, 477-A & 109---Prevention of Corruption Act (II of 1947), S.5---Criminal breach of trust, cheating by personation, cheating, forgery of valuable security, will etc., forgery, using as genuine a forged document, falsification of account, abetment, criminal misconduct---Bail, grant of---Further inquiry---Accused-petitioners were charged for committing misappropriation of funds from the salary accounts of HESCO employees from 2017 to 2023, which caused financial loss---Action against the applicants was not initiated on the complaint of HESCO---Action initiated by the FIA was based on "source report"---Noteworthy that the FIA was still struggling to find any money trail of the ill-gotten money back to the applicants---Moreover, FIA was not in a position to say how many employee salary accounts were manipulated, nor was the FIA in a position to show what loss each person caused in apportioning the phenomenal sum they said the applicants were liable to have embezzled---Equally noteworthy was that internal and external auditors did not discover the discrepancies for seven years and there did not seem to be audit reports on which HESCO relied---After seven years, FIA, not HESCO, discovered that a fraud of such a magnitude had occurred in HESCO---Federal Investigating Agency's failure to detect the crime earlier raised the question of its effectiveness---Apparently, the FIA had used its powers to register cases and arrest those accused in a pre-mature, mechanical and callous manner with little regard for people's right to dignity enshrined as a fundamental right in our Constitution---Law enforcement agencies could not be permitted to have such unbridled powers---Thoughts, reasons, and observations of the matter made the case against the applicants as one of further inquiry---Applicants had made out a case for the concession of bail---Bail applications were allowed, in circumstances.

Shahzada Qiaser Arafat v. The State PLD 2021 SC 708; Mst. Sughran Bibi v. The State PLD 2018 SC 595 and Chairman NAB v. Nisar Ahmed Pathan PLD 2022 SC 475 rel.

Ishrat Ali Lohar along with Zulfiquar Ali Korai for Aplicants (in Criminal Bail Applications Nos. S-379, S-398, S-400, S-399 and S-401 of 2024).

Syed Gohar Ali Shah for Applicants (in Criminal Bail Applications Nos. S-387 and S-388 of 2024).

Syed Tarique Ahmed Shah along with Ammar Ahmed for Applicants (in Criminal Bail Applications Nos. S-391 and S-416 of 2024).

Masood Illahi Sahito for Applicants (in Criminal Bail Applications Nos. S-406 and S-428 of 2024).

Ahsan Gul Dahri for Applicant (in Criminal Bail Applications Nos. S-444 and S-450 of 2024).

Syed Noor-e-Mustafa for Application (in Criminal Bail No. S-450 of 2024).

Mian Taj Muhammad Keerio along with Ms. Kahkashan and Aijaz Ali Rajar for Applicant (in Criminal Bail Application No. S-459 of 2024).

Waqar Alam Abbasi and Mehtab Nirban for Applicant (in Criminal Bail Application No. S-474 of 2024).

Zain-ul-Abdin Sahito for Applicant (in Criminal Bail Application No. S-495 of 2024).

Bashir Ahmed Almani, Assistant Attorney General for Pakistan along with Sub-Inspectors Waqar Ahmed, Ghulam Akbar and Babar Ali for the State.

Sattar Bux Soomro Additional Director General (Legal) HESCO and Faizullah Dahai C.F.O. HESCO present for Respondents.

Dates of hearing: 13rd, 14th, 21st May, 2024.

Order

Omar Sial, J.---The applicants are either Hyderabad Electric Supply Company (HESCO) employees or bankers. Their specific designation and the office in which they are posted are written next to their names in the title of this order.

1. All the captioned bail applications arise out of four FIRs:

(i) FIR No. 07 of 2024 registered at the FIA. Crime Circle in Hyderabad under sections 409, 419, 420, 467, 468, 471, 477-A and 109, P.P.C. and section 5 (2) of Prevention of Corruption Act, 1947.

(ii) FIR No. 03 of 2024 registered at the FIA. Crime Circle in Mirpurkhas under sections 409, 419, 468, 471, 477-A and 109, P.P.C. and section 5(2) of Prevention of Corruption Act, 1947.

(iii) FIR No.03 of 2024 registered at the FIA. Crime Circle in Shaheed Benazirabad under sections 409, 420, 468, 471, 477-A and 109, P.P.C. and section 5(2) of Prevention of Corruption Act, 1947.

(iv) FIR No. 04 of 2024 registered at the FIA. Crime Circle in Shaheed Benazirabad under sections 409, 420, 468, 471, 477-A and 109, P.P.C. and 5(2) of Prevention of Corruption Act, 1947.

1. All the FIRs are interlinked, so it would be appropriate to dispose of them with this single order.

2. The FIA has initiated an enquiry concerning the misappropriation of funds from the salary accounts of HESCO employees from 2017 to 2023. Allegedly, the misappropriation caused a financial loss, the quantum of which is still to be finally determined.

3. I have heard the learned counsel representing the applicants. I have also heard the learned Assistant Attorney General for Pakistan assisted by FIA officials. For the sake of brevity, the counsel's arguments are not being reproduced but are reflected in my observations and findings below. Neither party cited any cases.

4. It has been explained to me broadly that HESCO has a Head Office in Hyderabad and satellite offices in 42 places spread out within the area it services. The current lot of HESCO employees are posted at the Head Office or the satellite offices in Mirpurkhas, Sanghar, Shaheed Benazirabad and Umerkot. The Head Office has various departments, including Audit, Budget, and Banking. All three fall within the umbrella of the Finance Department. There is a Drawing and Disbursement Officer (D.D.O.) at the Head Office, which function is performed by the Executive Engineer(s). Funds are released through cheques signed jointly by the D.D.O. and the Divisional Accounts Officer.

5. The administration structure at the head Office is replicated at each of the 42 satellite offices. Budgets for the operations of each satellite office flow from the Head Office to the individual satellite. The satellite sends details of its requisite salaries/expenses to the Head Office each month, where those disbursements are scrutinized and processed. These demands and bills, on both sides, i.e. the Head Office and the satellite offices, go through the desks of the Budget and Bank departments and finally to the D.D.O's. office, which then approves the issuance of a cheque, which is taken to a bank for encashment. Several persons with varying job titles, descriptions, and duties work in each department. The prescribed responsibilities of each department and each employee have yet to be determined by the FIA. In the seven years that have passed, these positions have, in many instances, been manned by different persons, some of whom were posted at the head office and others in the various satellite offices.

6. The allegation against all the HESCO applicants is that they were a ring in the chain which benefited from manipulating employee cheques and accounting records to its benefit. There is no complaint against them from HESCO. On the other hand, the banker applicants allegedly sinned by processing cheques from HESCO employees that were presented for clearance at the branch where these applicants worked. There are no complaints against these bankers from the Bank or HESCO. The applicants are accused of committing fraud, forgery, cheating, falsification of accounts, criminal misconduct, colluding, and conspiring with each other and numerous other personnel to successfully execute an alleged conspiracy for embezzling HESCO funds.

7. The action against the applicants was not initiated on the complaint of HESCO. The FIA. initiated it based on what the learned A.A.G. said was a "source report". Learned A.A.G, however, could not justify, and Inspector Akbar chose to remain silent when queried regarding the reason the "source" could not be disclosed. What was so mysterious or secretive about it? Article 8 of the Qanun-e-Shahdat says that no police officer can be compelled to say where he got the information of the commission of an offence. Yet, safeguards to exercise this privilege are provided in various statutes and rules. One such rule is Rule 4 of the Federal Investigation Agency (Inquiries and Investigations) Rules, 2002. This rule requires that "The Deputy Director or an officer above the rank of Deputy Director may initiate verification of a complaint to ascertain the identity of the complainant or informer and genuineness of the complaint or information. No action shall be taken on any anonymous or pseudonymous complaint. Nothing has been produced to show that Rule 4 was complied with. The learned A.A.G. was also unclear whether such safeguards from unnecessary harassment of a person had been complied with. I am cognizant that this is a bail application; hence, I have not delved deeper. However, an adverse inference is drawn from the State's blanket denial to disclose the source.

8. It would be naive to think that this Court can fully grasp HESCO's corporate and administrative structures, inner workings, and accounting, budget and audit procedures in three hearings. Suffice it to say from the briefing given to this Court by Mr. Faizullah Dahri on the administrative, accounting and audit procedures and the hierarchy of persons who manage these functions; it appears to be intricate and complex. Further complicating things are the frequent transfers and postings of personnel who man these positions. The result of a tentative assessment is that to pin the blame on any one person in this episode is a rather tricky and difficult task for the FIA at the moment and requires more time and resources to sort out. All the persons who have been made accused were employees of HESCO and commercial banks, who held a designation through which the documentation passed on its way either to or from the Head Office, the satellite offices and some banks. I understand from counsels that the documentation to review and analyse is in the hundreds if not thousands. The FIA requires much more work to reach a level where the collected evidence will stand the test of legal scrutiny. Be that as it may, a person cannot be incarcerated and declined his fundamental rights in the interim period.

9. It is noteworthy that the FIA still struggles to find any money trail of the ill-gotten money back to the applicants. It is not in a position to say how many employee salary accounts were manipulated. Nor is the FIA in a position to show what loss each person caused in apportioning the phenomenal sum they say the applicants are liable to have embezzled. I have tentatively seen a couple of examples of the evidence on the charge of forgery in a valuable security. If the couple of examples I have seen represent the rest of the evidence, then FIA no doubt has a hard battle to fight in Court.

10. Equally noteworthy is that internal and external auditors of HESCO did not discover the discrepancies for seven years. There do not seem to be audit reports on which HESCO relies, nor what to say of the State relying upon for its prosecution. I was informed that the HESCO management told the FIA that an internal audit was being conducted. Learned A.A.G. acknowledges that the result of that audit is still not out. As skilled as the FIA Investigators may be, but they can surely not replace the wisdom of experts in audit and accounting procedures. Relying on FIA's investigators' accounting and audit knowledge to deny people their right to liberty and life would not be appropriate or justifiable.

11. After seven years, FIA, not HESCO, discovered that a fraud of such a magnitude had occurred in HESCO. Better late than never, yet FIA's failure to detect this crime earlier raises the question of FIA's. effectiveness. FIA's official responsibilities are much more significant and are many. If such is its performance, then it may be a cause of worry for the whole nation. The Agency has some talented personnel, as are the three Inspectors investigating this case, yet it is apparent that the Agency lacks funds and training for its investigators.

12. It is apparent that the FIA has used its powers to register cases and arrest those accused in a pre-mature, mechanical and callous manner with little regard for people's right to dignity enshrined as a fundamental right in our Constitution. Law enforcement agencies cannot be permitted to have such unbridled powers. Those in command of the Agency should ensure that its investigators and officers understand that not every case merits an immediate arrest. Arrests should be made as a last resort based on realistic and reasonable grounds. The trigger-happy reactions of law enforcement agencies in arrests must be curtailed and strictly regulated. It is pertinent to note that Rule 3(2) of the Federal Investigation Agency (Inquiries and Investigations) Rules, 2002 provides that:

(2) After an inquiry or investigation has been registered, the inquiry or investigation shall proceed with care and discretion, and no undue publicity shall be given to it. Special care shall be taken to ensure that no unnecessary damage is caused to the prestige, reputation and dignity of any public servant involved.

1. Upon a tentative assessment, it appears that by arresting persons left, right and centre based on incomplete evidence, the FIA may be in breach of the above-cited Rule. It must not be forgotten that in Shahzada Qaiser Arafat v. The State (PLD 2021 SC 708), the Supreme Court has ordered that "Investigating Officers should not mechanically arrest a person accused of having committed a cognizable offence; rather, they must exercise their discretion in arresting such person judiciously by applying their mind to the particular facts and circumstances of the case and consciously considering the question: what purpose will be served and what object will be achieved by arrest of the accused person?" The same sentiment was echoed earlier in the case of Mst. Sughran Bibi v. The State (PLD 2018 SC 595) in which the Court held that: "Ordinarily no person is to be arrested straightaway only because he has been nominated as an accused person in an FIR or in any other version of the incident brought to the notice of the Investigating Officer by any person until the Investigating Officer feels satisfied that sufficient justification exists for his arrest and for such justification he is to be guided by the relevant provisions of the Code of Criminal Procedure, 1898 and the Police Rules, 1934. According to the relevant provisions of the said Code and the Rules, a suspect is not to be arrested straight away or as a matter of course and unless the situation on the ground so warrants, the arrest is to be deferred till such time that sufficient material or evidence becomes available on the record of investigation prima facie satisfying the Investigating Officer regarding correctness of the allegations levelled against such suspect or regarding his involvement in the crime in issue."

2. In the current case, upon a tentative assessment, as also mentioned above, the FIA has acted prematurely in exercising its power of arrest and thus may be in breach of the above-cited judgments. As observed by the Supreme Court in Taufiq Asif v. General (Retd.) Pervez Musharraf and others (C.P. No. 3797 of 2020 Judgment passed on 10.01.2024): "Failing to adhere to the judgments and orders of the Supreme Court undermines the credibility and effectiveness of the entire judicial system established by the Constitution. Judgments of this Court being binding on all judicial and executive authorities of the country is a constitutional obligation under Articles 189 and 190 of the Constitution. This obligation reflects a fundamental commitment to preserving the integrity and sanctity of the Supreme Court.

3. Evidence in this case is documentary and is all in FIA's possession. There is little the applicants can do to tamper with it. The State raised no flight risk concerns. Some of the offences are bailable, whereas the others, though not bailable punishment, fall within the non-prohibitory clause of section 497, Cr.P.C. I am also drawn to the wisdom of the Supreme Court in Chairman NAB v. Nisar Ahmed Pathan (PLD 2022 SC 475), where the Court very meaningfully observed that:"Where two opinions can reasonably be formed based on the same material, the courts should prefer and act upon that which favours the accused person and actualises his fundamental rights to liberty, dignity, fair trial and protection against arbitrary detention. To err in granting bail is better than to err in declining, for the ultimate conviction and sentence of a guilty person can repair the wrong caused by a mistaken relief of bail. Still, no satisfactory reparation can be offered to an innocent person on his acquittal for his unjustified imprisonment during the trial." FIA may have a case, but that is for them to prove at trial.

2024 Y L R 2586

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro and Arbab Ali Hakro, JJ

Fayaz alias Fayaz Hussain and 5 others---Appellants

Versus

The State---Respondent

Special Anti-Terrorism Jail Appeal No. D-100 of 2022, decided on 29th May, 2024.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-F(v), 337-H(2), 506(2), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, ghayr-jaifah-hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged that they along with their co-accused made firing upon the police party, due to which complainant was also hit and injured whereas one private person was also hit and died---In the present case, two eye-witnesses had given first hand account of the incident---Eye-witnesses were consistent in revealing main features of the scene, arrival of the accused on three motorcycles armed with deadly weapons, indulging in firing murdering deceased and injuring complainant and another, and their escape from the scene---Said evidence ran parallel and in alignment with the story disclosed in the FIR---Lengthy cross-examination had not yielded a reply undermining intrinsic value of their evidence suggesting innocence of the accused---Factum of firing and injures by firearms on persons of deceased and injured was established from recovery of fired bullet-castings from the spot and medical evidence recording such injuries---Medico-Legal Officer, without admitting to any aberration casting cloud over genuineness of the story in cross-examination, had revealed all the necessary details that he noted while examining the injured and conducting postmortem of deceased---In his evidence, nothing incongruous and conflicting to the story as set up by the prosecution, had come on record to instill a sense of suspicion in the mind---All the links constituting the chain of events right from incident itself to completion of investigation were completed---Confidence-inspiring eye-account was supported by medical evidence, relevant lab reports of articles collected in the investigation, recovery of crime weapons at the source of accused persons, positive reports identifying them to have been used in crime, evidence of Mashirs verifying various steps of investigation taken by the Investigating Officer including recoveries of incriminating articles from accused persons effected in their presence---Nothing was left out to enforce an element of doubt in the prosecution case---Story rang true; was all encompassing and stood proved from unimpeachable evidence given by the witnesses---Appeal against conviction was dismissed, in circumstances.

1968 SCMR 161; 1976 PCr.LJ 254; 1981 SCMR 795; PLD 1988 Karachi 521; 1990 PCr.LJ 1018; 1996 SCMR 167; 1999 SCMR 1220; 2000 SCMR 683; 2001 SCMR 424; 2001 SCMR 56; 2002 PCr.LJ 51; 2003 SCMR 1391; 2004 YLR 216; 2004 SCMR 1185; 2004 YLR 1580; 2017 SCMR 596; 2018 SCMR 772; PLD 2020 SC 61; 2020 YLR 1071 and 2021 PCr.LJ 1654 ref.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-F(v), 337-H(2), 506(2), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, ghayr-jaifah-hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused were charged that they along with their co-accused made firing upon the police party, due to which complainant was also hit and injured whereas one private person was also hit and died---Record showed that three pistols, used by three brothers living together, were recovered from the same house which was not shocking---Fact that on examination by the lab along with empties collected from the spot, the pistols had been found to have been used in the subject crime was a relevant circumstance linking the accused persons with the offence---Some discrepancies on description of the pistols produced in the Court and accounted in the relevant memo., urged in defense, were not material as far as the main incident and use of such weapons in it by the accused persons was concerned---Any error by the Investigating Officer in recording description of the pistols accurately in the memo. at the time of recovery would not hold down their identity as crime weapons, not the least when such fact had been confirmed by the lab report---More so, in the main case, such recovery had been referred to as supporting evidence---In presence of positive report of lab confirming use of said weapons in the offence, mostly based on matching profile with empties recovered from the spot, there were no reason to disbelieve the status of that weapons as crime weapons and infer something not borne out of record available in the case---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324, 353, 337-F(iii), 337-F(v), 337-H(2), 506(2), 148 & 149---Anti-Terrorism Act (XXVII of 1997), S.7---Criminal Procedure Code (V of 1898), S.174---Police Rules, 1934, Rr.25.31 & 25.33---Qatl-i-amd, attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, ghayr-jaifah-hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapon, unlawful assembly, act of terrorism---Appreciation of evidence---Initial formalities done by police prior to the lodging of FIR---Not illegal---Accused were charged that they along with their co-accused made firing upon the police party, due to which complainant was also hit and injured whereas one private person was hit and died---Allegedly before the FIR certain investigation was done like preparation of inquest report, memo. also of place of incident and postmortem which strangely contained mention of crime number, which was illegal and made the entire investigation faulty and unreliable---Mentioning of crime number on the postmortem report was not inconceivable in the age of mobile phones when such things could be easily and conveniently discovered and made a part of the relevant papers before the actual FIR---Letter by the police to the Medico-Legal Officer requesting for postmortem usually contains all the necessary details about deceased and the crime number that has either been or is to be registered in due time---Writing of such a letter would itself posit that the police had been informed of the incident and were on board to ensure completion of all the fundamentals required to be done in law either pre or post investigation---Seen in such backdrop mentioning of crime number on such papers would not appear shocking or a result of some manipulation in the investigation to cause prejudice to the accused---Preparation of inquest report, lash chakas form and conducting postmortem of the deceased before registration of the FIR was not against the law---Such preliminary investigation was conducted in terms of S.174, Cr.P.C read with R.25.31 of the Police R.1934, which mandated the officer in charge of a police station or some other police office, on receiving information regarding unnatural death or sudden death of a person, shall immediately proceed, after sending information to the nearest Magistrate, to the place where such dead body was present and shall act as prescribed by Rule 25.33 of the Police R.1934 and S.174, Cr.P.C---Said provisions of law required him to prevent destruction of evidence, draw up a report of the apparent cause of death describing the wounds, fractures, bruises found on the body and the manner or by what weapons such injury or mark appeared to have been inflicted---Further, in such cases, as is provided by Rule 25.31, if he suspects commission of a cognizable offence, he shall register the case and commence investigation---Legally, initial formalities were to be completed by the Police Official with a view to preserve and record the elementary position and condition subsisting at the spot with regard to the dead body, its surroundings and cause of death (through postmortem) so as to be investigated later on after registration of the FIR if it turns out to be unnatural---Such exercise, therefore, would not make the case of prosecution doubtful and preparation of such reports as illegal---Appeal against conviction was dismissed, in circumstances.

Ms. Rizwana Jabeen Siddiqui for Appellants.

Mehboob Ali Wassan for Complainant.

Syed Sardar Ali Shah Rizvi, Additional Prosecutor General for the State.

Dates of hearing: 6th September, 4th October, 2nd November, 2023 and 25th April, 2024.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellants, having been convicted through impugned judgment dated 02.08.2022, passed by learned Judge, Anti-Terrorism Court, Khairpur in Special Case No.41 of 2016 (Re: State v. Faiyaz alias Faiyaz Hussain and others), emanating from Crime No.88 of 2016, registered at Police Station Kotdiji, District Khairpur under sections 302, 324, 353, 337-F(iii), 337-F(v), 337-H(2), 506/2, 148, 149, P.P.C read with Section 7 of Anti-Terrorism Act, 1997, and sentenced to suffer in the terms as below, have filed this Appeal challenging the same:

· Under section 148, P.P.C, to suffer RI for three years each with payment of fine of Rs.10,000/- (Rupees ten thousand) each, or in default thereof, to suffer further RI for two months each.

· Under Section 302(b), P.P.C read with Section 149, P.P.C, to suffer rigorous imprisonment for life each with payment of fine of Rs.1,00,000/- (Rupees one lac) each, or in default thereof, to suffer further RI for six months each.

· The movable or immovable property of all the accused be forfeited to the State and compensation as contemplated under section 544-A, Cr.P.C. of Rs.2,50,000/- (Rupees two lac fifty thousand) each be paid to legal heirs of deceased Ranwal alias Goro Bheel in lieu of murder of the deceased, or in default thereof, to suffer further RI for six months each.

· Under Section 324, P.P.C read with Section 149, P.P.C, to suffer RI for ten years each with payment of fine of Rs.50,000/- (Rupees fifty thousand) each, or in default thereof, to suffer further RI for six months each.

· Under Section 353, P.P.C read with Section 149, P.P.C, to suffer RI for two years each.

· Under Section 506/2, P.P.C read with Section 149, P.P.C, to suffer RI for seven years each with payment of fine of Rs.35,000/- (Rupees thirty five thousand) each, or in default thereof, to suffer further RI for two months each.

· Under Section 337-F(iii) P.P.C read with Section 149, P.P.C, to suffer RI for three years.

· Under Section 337-H(2) P.P.C read with Section 149 P.P.C, to suffer RI for three months each.

· Under Section 7 of Anti-Terrorism Act, 1997, to suffer rigorous imprisonment for life each with payment of fine of Rs.50,000/- (Rupees fifty thousand) each, or in default thereof, to suffer further RI for six months.

· All the aforesaid sentences shall run concurrently, with benefit of Section 382-B, Cr.P,C. extended to the accused.

1. The facts, as mentioned in FIR, briefly are that complainant PC Hadi Bakhsh Bhanbhro posted in Special Branch, Khairpur would regularly transmit special reports to his superiors of Mithri Beat. In the year 2014, an encounter had occurred between some criminals and Kotdiji police resulting in death of two criminals, namely Habibullah alias Haboo Kandhro and Rustam Kandhro, and injuries to Fayaz Kandhro. Accused Fayaz and Kouro Kandhro, suspecting the complainant of spying against their accomplices culminating in fatal encounter, had threatened him of dire consequences. On the fateful day: 13.05.2016, complainant after performing duty of looking after congregations at Friday prayer, and conveying such reports to his superiors, proceeded to have tea at Gada Hussain Hajano's hotel at Mithri Machine Stop. At the said hotel, he saw Sajjad Hussain Bhanbhro, Amanat Ali Bhanbhro and others available. At about 1445 hours, accused Fayaz, Nooro, Dargahi, Gullu, Zakir, Soomar, Kouro and Latif Dino, all armed with deadly weapons, arrived there on three motorcycles. They cautioned complainant that they would teach him a lesson for his spying activities. Then, accused Fayaz and Kouro, with intent to murder, fired at him from their respective weapons causing injuries to his jaw and left arm. When the people attempted to intervene, they fired indiscriminately hitting Ranwal alias Goro on chest and Nawaz Ahmed on his left calf. They both fell down on the ground. Thereafter, accused, firing blindly, fled the scene towards northern side on the motorcycles. Ranwal alias Goro in the meantime succumbed to injuries and died within their sight. The people promptly transported the injured to hospital after getting police letter(s) for medical treatment, and brought Ranwal's body to his family. Finally, FIR was registered by the complainant.

2. During investigation, appellants Fayaz alias Fayaz Hussain, Noor Ahmed alias Nooro and Gullan were arrested on 17.05.2016. In interrogation on 20.05.2016, they led the police to Fayaz's house, and at about 1600 hours, from a trunk lying there produced three .30 bore pistols along with magazines used in the offence, for which they were booked in Crime Nos.96, 97 and 98 of 2016, respectively, at the same police station. After facing a joint trial in such cases, they have been convicted for an offence under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer RI for seven years each with payment of fine of Rs.20,000/- (Rupees twenty thousand) each, or in default thereof, to suffer further RI for two months each, in addition to their punishments in the main case.

3. After the Challans in all the cases submitted, accused Soomar and Latif Dino surrendered in the Court and obtained interim pre-arrest bail, which, when was dismissed, they were taken into custody. Subsequently, accused Kouro was also arrested by the police on 05.01.2017, and from his possession, a .30 bore pistol along with a magazine and 06 live bullets were recovered, for which a separate FIR (Crime No.03/2017) was registered against him at the same police station. He also faced a joint trial in Special Case No.03 of 2017 with the main case, and has been convicted for an offence under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer RI for seven years with payment of fine of Rs.20,000/- (Rupees twenty thousand), or in default thereof, to suffer further RI for two months, in addition to his punishments in the main case.

4. The case against absconding accused Dargahi and Zakir was bifurcated and ordered to be kept on dormant file till their arrest or surrender in the Court. In terms of Section 21M of Anti-Terrorism Act, 1997, all five cases were amalgamated for a joint trial. A formal charge then was framed against the appellants, to which they pleaded not guilty and claimed for trial. The prosecution, invited to lead evidence, examined as many as twelve (12) witnesses, who have produced all the necessary documents including FIR, entries, memos. of inspection of place of incident and recovery, clothes of deceased, recovery of crime weapons, the injuries, production of last worn clothes by injured witnesses, arrest of accused and recovery, inspection of dead body of deceased Ranwal, inquest report, letters for medico legal examination, treatment of injured, sketch of place of incident, postmortem report of deceased, chemical examination report, ballistic expert report, provisional and final medico legal certificate, x-ray reports, receipt of handing over dead body of deceased to his heirs, etc.

5. In the end, appellants' statements under section 342, Cr.P.C. were recorded. They denied the allegations, but did not prefer to examine themselves on oath. However, they led evidence of witnesses Mohan Bheel, Bilawal Bheel and Muneer Bheel in defense. After a full-dressed trial and hearing the parties, learned trial Court has convicted and sentenced the appellants vide the impugned judgment in the terms as above, which they have challenged by means of this Appeal.

6. Learned Counsel in defense has argued that appellants have been falsely implicated in this case. There is no confidence inspiring evidence brought by the prosecution against them. The witnesses have contradicted each other on main facts of the case. There are so many variations and discrepancies in their evidence, which have made entire case of prosecution weak and doubtful. The place of incident has not been established and is disputed. The FIR shows that incident took place inside a room of a hotel, but the site plan prepared by Tapedar indicates availability of dead body outside of the hotel. Investigation in this case has not been conducted properly. The motive has not been proved either. The jurisdiction of Anti-Terrorism Court was not attracted because there was enmity between the parties, which is reflected from registration of an FIR by the accused party against the complainant. Recovery of three pistols from three different accused was effected from a single trunk available in one and the same house. More so, the pistols allegedly recovered from there did not match with the pistols produced in the evidence as borne out of such admission by the witnesses in evidence.

7. Further, it was urged by her in arguments that a pistol was recovered from appellant Kouro, which he had allegedly used in the crime, but it was not sent to ballistic expert for a report. There are contradictions and inconsistencies over seat and number of injuries received by the victims in evidence, and some of the witnesses, who claimed to be eye-witnesses, were not examined by the prosecution inducing a probability that had they been examined, they would not have supported the prosecution case. Bloodstained earth and pistols were sent for a lab report after a long delay, therefore, such reports, may be in positive, are not worthy of reliance. The medical evidence is contradictory to the oral account furnished by the eye-witnesses making the case highly doubtful. Appellants are entitled to benefit of doubt as the prosecution's case suffers from irreparable lacunas. She has relied upon the cases of 1968 SCMR 161, 1976 PCr.LJ 254, 1981 SCMR 795, PLD 1988 Karachi 521, 1990 PCr.LJ 1018, 1996 SCMR 167, 1999 SCMR 1220, 2000 SCMR 683, 2001 SCMR 424, 2001 SCMR 56, 2002 PCr.LJ 51, 2003 SCMR 1391, 2004 YLR 216, 2004 SCMR 1185, 2004 YLR 1580, 2017 SCMR 596, 2018 SCMR 772, PLD 2020 SC 61, 2020 YLR 1071 and 2021 PCr.LJ 1654.

8. On the other hand, learned Counsel for the complainant and learned Additional Prosecutor General have supported the impugned judgment stating that witnesses have given unassailable evidence against the accused. No material contradiction has come on record. They have lastly prayed for dismissal of appeal.

9. We have considered submissions of the parties and perused material available on record. In this case, prosecution has examined 12 witnesses, who have produced all the relevant documents to prove the charge against the appellants. Out of these witnesses, two are eye-witnesses, who have given firsthand account of the incident. The contradictions pointed out in defense are minor in nature having no debilitating effect on merits of pristine eye-account of the scene furnished by the witnesses, who have not wavered on any of salient features of the case constituting core of the event. The witnesses are consistent in revealing main features of the scene, arrival of the accused on three motorcycles armed with deadly weapons, indulging in firing murdering deceased and injuring complainant and another, and their escape from the scene. This evidence runs parallelly and in alignment with the story disclosed in the FIR. Their lengthy cross-examination has not yielded a reply undermining intrinsic value of their evidence suggesting innocence of the accused. We have, in fact, minutely gone through written arguments submitted by the defense counsel to find out any major contradiction pointed out by her, but are afraid none, suggested by her, could be construed as having an adverse effect on overall merits of the case.

10. The factum of firing and injures by firearms on persons of deceased and injured is established from recovery of fired bullet-castings from the spot and medical evidence recording such injuries. Medico-legal officer, without admitting to any aberration casting cloud over genuineness of the story in cross-examination, has revealed all the necessary details that he noted while examining the injured and conducting postmortem of deceased. In his evidence, nothing incongruous and conflicting to the story as set up by the prosecution, has come on record to instill a sense of suspicion in the mind. All the links constituting the chain of events right from incident itself to completion of investigation are complete. There is confidence-inspiring eye-account, supported by medical evidence, relevant lab reports of articles collected in the investigation, recovery of crime weapons at the source of appellants, positive reports identifying them to have been used in crime, evidence of Mashirs verifying various steps of investigation taken by the IO including recoveries of incriminating articles from appellants effected in their presence. Nothing is left out to enforce an element of doubt in the prosecution case. In our humble estimation, the story holds, rings true, is all encompassing, and stands proved from unimpeachable evidence given by the witnesses. All the accused have committed the offence conjointly with their common object is conspicuous from collection of material in investigation, place of incident and the manner of executing the offence evidenced by the witnesses. The accused all came together duly armed on three motorcycles at the hotel where the complainant was present, resorted to indiscriminate firing after cautioning him of his activities and murdered one person and critically injured two persons including him. Nothing is there to hold that some of the accused had not come with such object, and nothing cogent and inspiring has been suggested by them in defense either to think otherwise than their guilty mindset.

11. We have also taken into account the various variations pointed out by defense counsel in arguments to win acquittal of the appellants, but are not persuaded of their efficacy to undermine entire effort put in by the prosecution to prove its case. Complainant, a police official having no apparent motive to falsely implicate the appellants in such a heinous offence carrying capital punishment, has given a detailed version of events taking place on the fateful day culminating at murder of one person and injures to himself and another person. Per his evidence, he was present in the hotel on the fateful day when all (07) seven accused duly armed with deadly weapons came on three motorcycles. They after calling him out for his spy sorties, considered by them detrimental to their criminal activates, fired from respective weapons critically injuring him. When people tried to save him, they indiscriminately made firing killing one person by name Ranwal Bheel and injuring Zawaz Ahmed. The minor inconsistencies by him in describing local of injuries on his person like whether it was on his shoulder or biceps, located close to each other and indistinguishable to a layman to highlight precisely in evidence, or who brought him to hospital et al would not make his evidence doubtful or the appellants as innocent. He got injured in the incident thus his presence there is beyond a question.

12. Then, the urge made in defense over difference of time and its odd equation, recorded in papers and described by the complainant, pointing to his presence at the hospital and at place of incident purportedly at the same time does not make any difference over merits of the case either. For, firstly in police papers the exact time of such activities is never recorded, it is always probable time, close to actual time of any given activity. Secondly, it is the job of the IO to record such timings in the papers, a part of the case, an injured witness going through a sever trauma, is not naturally cut out to remember such tiny details and describe them with precision in his evidence later on.

13. The evidence of PW-2 is in compete conformity with version of the complainant. He has supported him on all material facts of the case, and has not faltered in cross-examination to any suggestion when called upon to explain his position qua the incident. He has even confirmed the motive part of the story by stating that as soon as the accused came, they told the complainant that he had got their companions killed, hence they would not spare him, and then made firing. Likewise, none of the other witnesses, including the IO putting up entire account of investigation, in their evidence has made any admission or yielded to any suggestion in cross-examination favorable to the appellants.

14. Next, it was urged in defense that the fact that all three pistols were recovered from a trunk lying in the same house is sufficient to hold such recovery doubtful. It was clarified by the learned DPG that the three appellants namely Fayaz alias Fayaz Hussain, Noor Ahmed alias Nooro and Gullan on whose source such recovery was effected are brothers inter se and living in one and the same house, therefore, such recovery is not unconscionable. We agree with him that recovery of three pistols, used by three brothers living together, from the same house is not shocking. The fact that on examination by the lab along with empties collected from the spot, these pistols have been found to have been used in the subject crime is a relevant circumstance linking the appellants with the offence. Some discrepancies on description of the pistols produced in the court and accounted in the relevant memo., urged in defense, is not material either as far as the main incident and use of such weapons in it by the appellants is concerned. Any error by the IO in recording description of the pistols accurately in the memo. at the time of recovery would not hold down their identity as crime weapons, not the least when such fact has been confirmed by the lab report. More so, in the main case, such recovery has been referred to as supporting evidence. In presence of positive report of lab confirming use of said weapons in the offence, mostly based on matching profile with empties recovered from the spot, we have no reason to disbelieve the status of that weapons as crime weapons and infer something not borne out of record available in the case.

15. It was also urged by defense counsel in her arguments that since some of the material witnesses have not been examined by the prosecution in the trial, it would run against it and make the case as doubtful. It may be said that time-tested proposition qua prerogative of the prosecution to examine as many witnesses as it thinks fit to prove the charge still holds good and relevant. Prosecution's decision not to examine any number or a particular witness on some point already brought on record by the other witness would not adversely reflect on its effort to establish the charge or the fact of proving the charge itself against the accused. The court would not hesitate in accepting evidence of even a single witness on a given point to record conviction against the accused when it finds it confidence inspiring and in alignment with other concomitant circumstances supporting it. Here, in this context, it is helpful to note that from their conduct the appellants appear to be desperate and dangerous. Complainant is a police official and in that sense enjoys more protection and security than an ordinary fellow, yet just because the appellants were wary of his alleged spying activates reporting against them, they launched a deadly attack, in the course of which seriously injured him and another person present at the scene besides murdering a third fellow. In such a milieu, expecting an ordinary person to come forward and give evidence against as dangerous a person as the appellants is simply to expect an urbanite to hold a bull by the horn. It would be equally unlikely to think that appellants would not have exerted any pressure upon the witnesses to desist them for appearing in the court to adduce evidence against them. Some of the witnesses, not examined by the prosecution therefore would not make much difference on merits of the case.

16. Examining defense witnesses, who are in fact legal heirs of deceased Ranwal Bheel and belong to minority community, absolving the appellants of his murder appear to be but a part of the same kind of pressure by the latter. None of them otherwise had joined investigation for recording their version of the incident, never tried to approach and apprise the real facts to the relevant police officials seized with the case, or the court where investigation report was being submitted and the appellants' remand was being sought. They never moved any application claiming that they were present at the spot and had seen the actual accused, who are not at least the appellants, so that at the very outset wrong could have been arrested and the police set out for nabbing real culprits as per their version. This did not happen and the course of investigation remained as it was, therefore their introduction as late as statement under section 340(2), Cr.P.C. does not inspire confidence and make their version of the event unworthy of reliance.

17. Next, learned counsel in her arguments also emphasized that before the FIR certain investigation was done like preparation of inquest report, memo. of place of incident and postmortem which strangely contains mention of crime number, which is illegal and makes the entire investigation faulty and unreliable. The mention of crime number on the postmortem report is not inconceivable in this age of mobile phones when such things can be easily and conveniently discovered and made a part of the relevant papers before the actual FIR. The letter by the police to the medico legal officer requesting for postmortem usually contains all the necessary details about deceased and the crime number that has either been or is to be registered in due time. Writing of such a letter would itself posit that the police have been informed of the incident and are on board to ensure completion of all the fundamentals required to be done in law either pre or post investigation. Seen in such backdrop mention of crime number on such papers would not appear shocking or a result of some manipulation in the investigation to cause prejudice to the accused.

2024 Y L R 2619

[Sindh (Mirpurkhas Bench)]

Before Khadim Hussain Tunio and Amjad Ali Sahito, JJ

Bijar alias Bijli and others---Appellants

Versus

The State---Respondent

Criminal Appeal No. D-01 to D-03 of 2024, decided on 30th April, 2024.

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

----Ss. 324, 353, 225, 337-A(i), 337-F(i), 337-H(2), 147, 148 & 149---Sindh Arms Act (V of 2013), S. 24---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, resistance or obstruction to lawful apprehension of another person, shajjah-i-khafifah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapons, unlawful assembly, possessing illicit weapon, act of terrorism---Appreciation of evidence---Contradictions in the statements of witnesses---Accused were charged that they along with their co-accused made assault upon the police party with hatchets and clubs, due to which Police personnel sustained injuries---Ocular account of the incident had been furnished by three witnesses---Complainant deposed verbatim the FIR---Said witness stated that he managed to dodge two bullets during a close quarter scuffle, managed to disarm the assailant by swiftly ejecting the magazine from the pistol held by the said assailant and managed to escape unscathed---Incident was to be viewed with skepticism from the very inception because the case set out at best would have been of ineffective firing even if the prosecution's version was accepted and the likelihood of the other injuries being managed was almost certain---According to the complainant, three people were armed with pistols---Of those three, one was arrested by the heroic efforts of complainant while the other two were shown to have just fired in the air despite seeing their companion being caught---Prosecution's second eye-witness, a Police Official presented a chronology of events that contradicted the initial account---Most notably, said witness asserted that accused fired two shots directly at complainant, prompting him to intervene and disarm him---This contradicted complainant's own version in which the shot allegedly did not miss but was deflected at close range and that he ejected the pistol magazine prior to the second shot---Another eye-witness contradicted the depositions of complainant and Head Constable qua the locale of the shot that landed on the police mobile---Earlier, complainant and Head Constable had deposed that the shot landed on the bonnet/hood of the vehicle, however Police Constable stated that the shot landed on the passenger side, which he mentioned as the site the SHO was seated on, and that the same went through the back---Said witness also contradicted others in stating that the accused was apprehended only after managing to shoot once---Pictures exhibited by the prosecution of the vehicle corroborated the version of Police Constable and not the others---Circumstances established that prosecution had failed to drive home the charge against the accused persons beyond a reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 324, 353, 225, 337-A(i), 337-F(i), 337-H(2), 147, 148 & 149---Sindh Arms Act (V of 2013), S. 24---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, resistance or obstruction to lawful apprehension of another person, shajjah-i-khafifah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapons, unlawful assembly, possessing illicit weapon, act of terrorism---Appreciation of evidence---Injuries sustained by injured, doubtful---Accused were charged that they along with their co-accused made assault upon the police party with hatchets and clubs, due to which Police personnel sustained injuries---Admittedly, the unknown accused caused hatchet and club blows to Head Constable and Police Constable---Complainant did not state how he received injuries, so it was rather surprising to note that in his deposition he later stated that he had to visit the doctor at Civil Hospital for his own treatment as well and that he received two injuries on his forehead---Discrepancy was left unexplained by every single eye-witness, all of whom failed to account for how those injuries were received which were found to be incised cuts requiring stitches---Injuries, received by Head Constable and Police Constable, however, were not in dispute and as per medical evidence were due to blunt weapons---Said Officials received injuries at the hands of the unknown accused that were not known to the police---None of the eye-witnesses could even state which accused caused which injury, rather such role was collectively assigned to the four unknown assailants---Relevancy of medical evidence, in such a case, was very little---Prosecution did not have to prove that the injuries were caused but that they were caused by the accused persons---Thus, the possibility of the injuries being managed could not rule out---However, it already appeared implausible that the Police Officials escaped firearm injuries but were a victim of blunt force trauma---Circumstances established that prosecution had failed to drive home the charge against the accused persons beyond a reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 324, 353, 225, 337-A(i), 337-F(i), 337-H(2), 147, 148 & 149---Sindh Arms Act (V of 2013), S. 24---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, resistance or obstruction to lawful apprehension of another person, shajjah-i-khafifah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapons, unlawful assembly, possessing illicit weapon, act of terrorism---Appreciation of evidence---Delay in sending the weapon of offence and crime empties for analysis---Accused were charged that they along with their co-accused made assault upon the police party with hatchets and clubs, due to which Police personnel sustained injuries---Ballistic examination report pertaining to the pistol allegedly recovered from accused and the three bullet casings also raised significant questions---Such items were reportedly sent for examination after a seven-day delay---Record indicated that the case property was held in the Malkhana under Entry No. 258, produced by Writing Head Constable---However, that very entry presented cause for concern---During cross-examination, Writing Head Constable admitted to preparing Entry No. 24 on plain paper, raising questions about its authenticity---Said entry was pertaining to the deposit of the blood stained clothes of the complainant---Writing Head Constable was also unable to clarify when the entry was created, to which police register it belonged, or whether it constituted the original record---Furthermore, the Malkhana entry for the .30 bore pistol and bullet casings, bearing No. 258, lacked a date, time or official police station stamp, rendering its evidentiary value negligible---Absence of a proper record undermined the evidentiary value of the pistol on several fronts---First, the prosecution lacked the ability to definitively prove the recovery of the pistol---Beyond the testimony of prosecution witnesses, there existed the possibility of tampering with the evidence, including the entries themselves---Second, the pistol being in a working condition was also called into question---Lack of firearm injuries could suggest that the recovered pistol was inoperable and subsequently replaced with a functioning weapon---Furthermore, the complainant had failed to prepare a sketch of the recovered pistol which ought to have assisted in establishing its identity as well---Such omission too stuck at the heart of the prosecution case---As per depositions of Writing Head Constable, he was not even aware of the contents of the parcels handed over to him because he deposed that the contents of the parcels were not disclosed to him by the Investigating Officer---On such grounds alone, the conviction of accused for the offense punishable under S.24 of the Sindh Arms Act, 2013 could not be sustained---Circumstances established that prosecution had failed to drive home the charge against the accused persons beyond a reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 324, 353, 225, 337-A(i), 337-F(i), 337-H(2), 147, 148 & 149---Sindh Arms Act (V of 2013), S. 24---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, resistance or obstruction to lawful apprehension of another person, shajjah-i-khafifah, ghayr-jaifah-damiyah, rash or negligent act to endanger human life or personal safety of others, rioting, rioting armed with deadly weapons, unlawful assembly, possessing illicit weapon, act of terrorism---Appreciation of evidence---Deliberate and dishonest improvements---Accused were charged that they along with their co-accused made assault upon the police party with hatchets and clubs, due to which Police personnel sustained injuries---Identity of the unknown accused was under doubt---Complainant stated that he just came to know of the identity of those unknown assailants and got his further statement recorded under S.162 Cr.P.C----Complainant did not disclose the source of such information, and in the same S.162, Cr.P.C statement he disclosed how he received the injuries---Such statement was nothing short of an attempt to improve the prosecution case---Deliberate and dishonest improvements, taken with the assumption that they were to strengthen the prosecution case, casted serious doubts on the said witness veracity which ultimately made him unreliable---No test identification parade was conducted either and the police believed whatever source they had received their information from---Undoubtedly it is not a legal requirement to conduct a test identification parade, however in cases where the accused are not known by name or are not seen previously, it becomes a necessity in order to establish their identity---Circumstances established that prosecution had failed to drive home the charge against the accused persons beyond a reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Inhaf Ullah v. The State 2021 SCMR 1725 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---It is better that ten guilty persons escape, than one innocent suffers.

Afzal Karim Virk for Appellants.

Shahzado Saleem Nahiyoon, APG Sindh for the State.

Date of hearing: 23rd April, 2024.

Judgment

Khadim hussain Tunio, J.---The appellants Bijar son of Allahyar, Kaloo son of Miran, Sanwan son of Guloo, Shahak son of Attur and Mitho son of Atta Muhammad were charged and tried by the Anti-Terrorism Court Mirpurkhas ("Trial Court") for assaulting police officers and by a consolidated judgment passed on 22.02.2024 ("impugned judgment") whereby they were sentenced to various terms of imprisonment along with fines for the offences punishable under sections 324, 353, 225, 337-A(i), 337-F(i), 337-H(ii), 147, 148 and 149 of the Pakistan Penal Code ("P.P.C") read with sections 6/7 of the Anti-Terrorism Act, 1997 ("ATA 1997"). All three of the captioned appeals challenge the same pronouncement of the Trial Court pertaining to the same incident; therefore they are being decided together.

FACTUAL HISTORY

1. The main incident stems from FIR No. 33 of 2023 lodged with Police Station Sindhri by Sub-Inspector Khuda Bux Ranjhani whereas FIR No. 34 of 2023 was lodged with the same police station pertaining to the recovery of a firearm from the appellant Sanwan.

2. The facts giving rise to the charge of assault on the police officers and resulting injuries are as follows. On 28th May, 2023 the appellants Bijar and Kaloo, admittedly absconders in separate incidents, were reported to Sub-Inspector Khuda Bux to be present at a hotel near Samaro Bus Stop at Sindhri-Khipro crossroad. Forwarding such information to CIA Centre Mirpurkhas and requesting backup, he set out along with his own police contingent and was joined by Sub-Inspector Hidayatullah along with his own staff. Upon arrival at the designated location, officers encountered three individuals who attempted to escape but were subsequently apprehended and identified as Bijar, Siddique, and Kaloo. However, this apprehension proved temporary, as the other appellants allegedly arrived with the intent to help their associates evade. Appellants Sanwan, Shahak, and Mitho were armed with pistols. Sanwan allegedly shot his pistol twice; one distant shot striking a police vehicle, and a second point-blank shot deflected by SIP Khuda Bux. Mitho and Shahak allegedly fired into the air. The remaining unidentified assailants reportedly attacked the police with hatchets and clubs, resulting in injuries. During the struggle, Bijar and Kaloo are alleged to have escaped while Sanwan, the alleged shooter, and Siddique, who was unable to flee, were arrested.

PROCEEDINGS BEFORE THE ANTI-TERRORISM COURT

1. A formal charge was framed against the appellants on 18.09.2023 to which they pleaded not guilty and sought trial. Prosecution examined eight witnesses who produced various documents and artefacts in evidence. Then, statement of the appellants was recorded under section 342 of the Code of Criminal Procedure ("Cr.P.C") wherein they separately disputed the prosecution case by claiming false implication. They disputed any recoveries shown to have been made from them and stated that the medical reports were also managed by the police. Appellant Sanwan and Siddique, the two who were allegedly arrested from the place of incident disputed their presence and stated that they had in fact been arrested from Aachar Cattle Market in Sindhri Town and false involved in the case because of their prior protests against a tyrannical raid on the house of their elder Baboo Mari which had annoyed the Senior Superintendent of Mirpurkhas Police. Appellant Shahak, to the extent of enmity, stated that in 2015 him and his brother were arrested by CIA Centre Mirpurkhas and his brother was murdered under the pretext of a police encounter and that the police of Mirpurkhas has since then, been on inimical terms with him. He stated that he was arrested on 21.05.2023, much prior to the incident, and arrested after being confined at various police stations. The other accused stated that they surrendered voluntarily upon coming to know that the FIR had been lodged against them. On conclusion of the arguments, Trial Court passed the consolidated judgment impugned herein.

ARGUMENTS

5.1. Mr. Afzal Karim Virk, learned counsel for the appellants argued that the entire prosecution case is false and was managed to please SSP Mirpurkhas against whom the appellants had protested for a raid on their elder's house. He further contended that the prosecution story, on the face of it, is not credible and that all the witnesses were subordinates of the complainant and therefore had to approve his version of the incident. He also stated that despite the place of incident being a hotel near a lively bus stop, no one from the public came forward or was associated as a witness. He contended that on the basis of the same evidence, Trial Court acquitted a set of co-accused due to them being shown as unknown accused, a role that is identically assigned to many of the present appellants. As against the recovery of the .30 bore pistol and the live bullets, he contended that the same had lost its evidentiary value as it was sent for ballistic examination after a considerable and unexplained delay of seven days. He also pointed out various contradictions in the evidence of the prosecution witnesses, more specifically ones pertaining to the pendency of cases against the appellant Kaloo, discrepancy in the departure of CIA police officials and the discrepancy in the nature of injuries as per the medical certificates.

5.2. Mr. Shahzado Saleem Nahiyoon, APG Sindh stated that the appellants are involved in the heinous offence of deterring police officials from performing their duties, escaping from police custody, causing injuries to police officials and possessing unlicensed weapons. He further stated, although half-heartedly, that the appellants could not prove their enmity against the police officials and that police officials were all credible witnesses of the incident. He stated that the recovery of the firearm and such positive forensic science laboratory report strengthens the prosecution case and pursuant to all the evidence available, the appeals should be dismissed.

1. Having, heard the parties and perused the record, we unequivocally have come to the conclusion that the prosecution case, as set out in the FIR and advanced by the witnesses, is patently false, that the incidents alleged to have taken place in the manner stated does not find favour of logic and that it was unsafe for the Trial Court to convict the appellants on the basis of the same.

OCULAR ACCOUNT

7.1. For safer administration of justice and since the learned counsel for the appellants pointed out contradictions, we reappraised the depositions of the witnesses. The ocular account of the incident is furnished firstly by SIP Khuda Bux ("the complainant") who deposed verbatim the FIR. We noted that this witness stated that he managed to dodge two bullets during a close quarter scuffle, managed to disarm the assailant by swiftly ejecting the magazine from the pistol held by the said assailant and managed to escape unscathed. The incident was to be viewed with scepticisim from the very inception because the case set out at best would have been of ineffective firing even if the prosecution's version was accepted; and the likelihood of the other injuries being managed is almost certain. According to the complainant, three people namely Sanwan, Shahak and Mitho were armed with pistols. Of these three, Sanwan was arrested by the heroic efforts of SIP Khuda Bux while the other two are shown to have just fired in the air despite seeing their companion being caught. To believe that they risked their lives in order to save their apprehended associates and then left another one who would clearly be booked in a more serious offence is illogical. And then to believe that these same people would surrender, voluntarily, is equally unbelievable. The complainant stated that he recovered three bullet empties from the place of incident. Prior to that, he had already deposed that the appellant Sanwan had shot twice while both Shahak and Mitho had shot. Even if Shahak and Mitho had shot once, the number of empties still does not match.

7.2. The prosecution's second eye-witness, SIP Hidayatullah, presented a chronology of events that contradicts the initial account. Most notably, he asserts that appellant Sanwan fired two shots directly at SIP Khuda Bux prompting SIP Khuda Bux to intervene and disarm him. This contradicts SIP Khuda Bux's own version in which the shot allegedly did not miss but was deflected at close range, and that he ejected the pistol magazine prior to the second shot.

7.3. Police Constable Hashim Khan, the driver of the police mobile and another eye-witness had much to say about the incident as well. Although mostly deposing in line with the depositions of SIP Khuda Bux and HC Allah Bux, he contradicted both of them on the locale of the shot that landed on the police mobile. Earlier, SIP Khuda Bux and HC Allah Bux had deposed that the shot landed on the bonnet/hood of the vehicle, however PC Hashim Khan stated that the shot landed on the passenger side, which he mentions as the site the SHO was seated on, and that the same went through the back. He also contradicts the others in stating that the appellant Sanwan was apprehended only after managing to shoot once. We did note, however, that the pictures exhibited by the prosecution of the vehicle corroborate the version of Police Constable Hashim Khan and not the others.

FORENSIC EVIDENCE

8.1. Admittedly, the unknown accused caused hatchet and club blows to HC Allah Bux and PC Shabbir Ahmed. The complainant does not state how he received injuries, so it is rather surprising to note that in his deposition he later states that he had to visit the doctor at Civil Hospital Mirpurkhas for his own treatment as well and that he received two injuries on his forehead. This discrepancy is left unexplained by every single eye-witness, all of whom fail to account for how these injuries were received which were even found to be incised cuts requiring stitches. The cause of this injury finds mention, for the first time, in the 162, Cr.P.C statement of the complainant as being injuries from the butt of a pistol. The injuries received by HC Allah Bux and PC Shabbir Ahmed, however, are not in dispute and as per medical evidence are due to blunt weapons. They received injuries at the hands of the unknown accused that were not known to the police. None of the eye-witnesses could even state which accused caused which injury, rather such role is collectively assigned to the four unknown assailants. The relevant of medical evidence, in such a case, is very little. This so because prosecution did not have to prove that the injuries were caused but that they were caused by the appellants. In failing to do so, this Court, and as the Trial Court should have done as well, cannot rule out the possibility of the injuries being managed. It already appears implausible that the police officials escaped firearm injuries but were a victim of blunt force trauma. It is also noteworthy to mention here that the blood stained clothes that were recovered after a delay of two days were not sent to the chemical examiner for examination. Furthermore, the clothes of the complainant that were stated blood stained were also recovered after a delay which was covered up as the entry pertaining to the same bearing No. 24 does not note the date and time for such deposit.

8.2. The ballistic examination report pertaining to the pistol allegedly recovered from appellant Sanwan and the three bullet casings also raises significant questions. These items were reportedly sent for examination after a seven-day delay. The record indicates that this case property was held in the malkhana under Entry No. 258, produced by Writing Head Constable Abdullah of Police Station Sindhri. However, this very entry presents cause for concern. During cross-examination, WHC Abdullah admitted to preparing Entry No. 24 on plain paper, raising questions about its authenticity. This entry was pertaining to the deposit of the blood stained clothes of the complainant. He was also unable to clarify when the entry was created, to which police register it belonged, or whether it constituted the original record. Furthermore, the malkhana entry for the .30 bore pistol and bullet casings, bearing No. 258, lacks a date, time, or official police station stamp, rendering its evidentiary value negligible. The absence of a proper record undermines the evidentiary value of the pistol on several fronts. First, the prosecution lacks the ability to definitively prove the recovery of the pistol. Beyond the testimony of prosecution witnesses, there exists the possibility of tampering with the evidence, including the entries themselves. Second, the pistol being in a working condition is also called into question. The lack of firearm injuries could suggest that the recovered pistol was inoperable and subsequently replaced with a functioning weapon. Furthermore, the complainant had failed to prepare a sketch of the recovered pistol which ought to have assisted in establishing its identity as well. This omission too strikes at the heart of the prosecution case. Another relevant detail is that as per depositions of WHC Abdullah, he was not even aware of the contents of the parcels handed over to him because he deposed that the contents of the parcels what were disclosed to him by the investigating officer Inspector Muhammad Haroon. On these grounds alone the conviction of appellant Sanwan for the offense punishable under Section 24 of the Sindh Arms Act cannot be sustained.

8.3. Regrettably, the Trial Court also erroneously concluded that the ballistic examiner's report supported the eye-witness accounts. This conclusion is demonstrably proven wrong by a perusal of the report and the testimonies of the prosecution witnesses. These witnesses consistently deposed that appellant Sanwan fired only two shots before his pistol magazine was removed. If we accept the complainant's version, the first shot was fired, then the magazine was ejected, leaving only one chambered round. The firing of this second round makes it logically impossible for a third shot to have been discharged. Despite this, all three recovered casings are somehow forensically linked to the same .30 bore pistol allegedly recovered from appellant Sanwan. All this is besides the fact that despite alleging that the other armed appellants fired in the air, no such recoveries were made.

1. The identity of the unknown accused is also under doubt. The complainant stated that he just came to know of the identity of these unknown assailants and got his further statement under section 162, Cr.P.C. recorded as Zameer, Attur and Muhammad Usman. He does not disclose the source of such information, and in that same 162, Cr.P.C. statement he discloses how he received the injuries to his own self. Suffice it to say that this statement was nothing short of an attempt to improve the prosecution case at the very stage because of the introduction of information for the very first time. Deliberate and dishonest improvements, taken with the assumption that they are to strengthen the prosecution case, cast serious doubts on the said witness' veracity which ultimately makes him unreliable; Naveed Asghar and 2 others v. The State, PLD 2021 SC 600. No test identification parade was conducted either and the police believed whatever source they had received their 'information from. Undoubtedly it is not a legal requirement to conduct a test identification parade, however in cases where the accused are not known by name or seen prior, it becomes a necessity in order to establish their identity; Inhaf Ullah v. The State (2021 SCMR 1725).

2. All the appellants took identical pleas besides Sanwan and Shahak whose plea were relied on only to the extent of their arrests and the sources of enmity disclosed therein. Sanwan stated that he and Siddique had been arrested prior to the incident. The appellants stated that prior to the incident, Mirpurkhas Police had raided a notable of their community without any lady police constables and without any search warrant, resulting in an outcry amongst the Mari community for which they had staged several protests against the SSP Mirpurkhas which had kept him annoyed. Admittedly in 2015, the brother of appellant Shahak was also murdered in allegedly staged police encounter which, as per the appellant's counsel, had reached national news and to that effect newspaper clippings were tendered in evidence. Suffice it to say that the defence has set up a damning case against the police officials for abusing their authority and involving them in false cases as an application under section 491, Cr.P.C. against the arrest of Shahak Mari filed in July 2023 was also tendered in evidence. Regrettably, the Trial Court also failed to take the defence case into consideration because the same finds no mention in the impugned judgment. The conduct of the police officials was deplorable to say the least too. Evidently, the case was false because not a single piece of evidence backed another piece of evidence and everything pointed to the possibility of the fabrication of this case, from the managed entries, to withholding blood stained clothing from chemical examination to show the incident as a grave one supported by pictures showing the same blood stained clothing, the blatant lies in the deposition left unsupported by even the ballistic examiner's report and then the poor attempts at improving the prosecution case doomed to fail from its inception. All these circumstances created more than sufficient doubts in the prosecution case leaving only one plausible decision: that the prosecution had miserably failed to establish its case against the appellants.

3. It is imperative that any Court handling a matter must exercise its discretion in favour of the accused where the credibility of prosecution witnesses is non-existent from the very beginning. No doubt police officials are public functionaries and deserve their own share of respect; however the trend of believing their testimonies to the grave must end. If one were to take up every criminal case decided by a Superior Court involving evidence of only police witnesses, what would evidently be the conclusion is that their evidence must be treated as the same as evidence coming from any other witness and their testimony has to go through the same rigors as the testimony of an ordinary witness. They are not at a higher pedestal and to even think so would be futile. The incident allegedly took place at a hotel yet not one person from the public came forward, the incident was never reported to the police, the news did not pick up on it nor was a statement of the hotel owner taken by the police. All this appears to be nothing but deliberate.

2024 Y L R 2635

[Sindh]

Before Omar Sial, J

Abdul Karim---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 2388 of 2023, heard on 27th November, 2023.

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

----S. 497---Foreign Exchange Regulation Act (VII of 1947),Ss. 4, 5, 8 & 23---Payments through informal banking channel of "hawala"/"hundi"---Post-arrest bail, grant of---Allegation against the petitioner/accused (who owned/operated an electronic goods shop) was that he got people to bring phones and electronic tablets from Dubai to sell in Pakistan but made payments to the sellers through the informal banking channel of "hawala"/ "hundi"---First Information Report was registered against the petitioner/ accused under Foreign Exchange Regulations Act, 1947, (FERA) beside other laws including Customs Act, 1969---Bail petition moved by petitioner/accused was dismissed by the Tribunal under FERA (' the Tribunal')---Held, that evidence against the petitioner /accused included` his phone's WhatsApp messenger allegedly carrying incriminating messages like receipts of purchases---However, said messages were yet to be thoroughly scrutinized, and it was yet to be determined how payments were made abroad, their exact mode, and to whom they were made---Evidence which would stand the test of legal scrutiny was yet to be obtained by the Federal Investigating Agency( FIA)---On the contrary, the FIR seemed to reflect that the petitioner paid Pakistan Rupees to specific suppliers, whose details were mentioned in the FIR---Impugned bail dismissal order seemed to have taken the smuggling of electronic items as its basis, whereas the Tribunal was not seized of that part of the alleged crime---1500 Saudi Rivals and 5 Omani Riyals were found in the petitioner's possession---Possessing foreign currency was not a crime, and it was not a large amount for a person to keep---Petitioner should be allowed to explain at trial and provide a record of the mode in which he had made payment to people from whom he claimed to have bought the electronic items---Electronic items in question had been seized and were in the possession of law enforcers---Present bail application did not pertain to the alleged offences under the Customs Act, 1969---Offence with which the petitioner was charged under the FERA carried a potential sentence of up to 5 years, and although not bailable, it fell within the non-prohibitory clause of S.497, Cr.P.C---No apprehension of the petitioner being a flight risk had been raised by the FIA---Law Enforcers had already taken electronic goods and foreign currency into their possession---Monetary loss already caused to the petitioner was of such nature that the chances of him repeating the offence were greatly diminished---Apart from the forensics of the petitioner's phone, the investigation was complete and the chances of the petitioner tinkering with the evidence were also low---No extraordinary or exceptional grounds were found to deny bail to the petitioner---Bail was granted to the petitioner, in circumstances.

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

----S. 497---Constitution of Pakistan, Art. 189---Bail---Offences not falling within prohibitory clause of S.497, Cr.P.C---Principles/guidelines laid down by the Supreme Court of Pakistan---Doctrine of stare decisis---There has been a substantial rise in cases originating from the alleged offences, the punishment of which falls within the non-prohibitory clause of S.497, Cr.P.C.---High volume of bail applications coming to the High Court pertain to such cases---Surprisingly, some Trial Courts deny bail even in cases of bailable offences---Consequently, the High Court is further burdened, apart from the drain on the State exchequer and the litigants expenses; this is neither fair to a person nor in compliance with the principles enunciated by the Supreme Court on the grant of bail falling within the non-prohibitory clause of S.497, Cr.P.C.---When the Supreme Court of Pakistan has laid down principles to follow, it is incumbent upon all Courts to comply with the same---Only exception is where a court gives its reasons to distinguish the case before it from the ambit of cases to which the Supreme Court rulings apply---In many orders of the Trial Courts, it has been noticed that the principles enunciated by the Supreme Court are not complied with---Bail is denied even in bailable cases---Pakistan is a country that follows the doctrine of stare decisis---All Courts are bound by principles regarding precedent under Art. 189 of the Constitution---High Court urged the lower courts to strictly comply with the Supreme Court's guidelines and evaluate bail applications in the light thereof.

Mansha Khan and 2 others v. The State 1977 SCMR 449; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Subhan Khan v. The State 2002 SCMR 1797; Zafar Iqbal v. Mohammad Anwar and others 2009 SCMR 1488; Riaz Jafar Natiq v. Mohammad Nadeem Dar and others 2011 SCMR 1708 Riaz Jafar Natiq v. Mohammad Nadeem Dar and others 2011 SCMR 1708; Mohammad Tanveer v. The State and another PLD 2017 SC 733 and Mohammad Imran v. The State and others PLD 2021 SC 903 ref.

Aamir Mansoob Qureshi for Applicant.

Altaf Ahmed Sahar, Assistant Attorney General along with S.I. Aftab Ahmed Soomro, FIA, I.O. for the State.

Date of hearing: 21st November, 2023.

Order

Omar Sial, J.---Abdul Karim owns and operates an electronic goods shop. The accusation against him is that he gets people (referred to as "khapiyas" in the local terminology) to bring phones and electronic tablets from Dubai sell here but makes payments to the sellers through the informal banking channel of "hawala" (interchangeably, known as "hundi"). On 18.09.2023, the applicant was stopped by the F.I.A. while he was driving his car. Documents allegedly, showing. his nexus with the purchase of phones and tablets were found in the vehicle. FIR No. 11 of 2023 was registered against him under sections 4, 5, 8 and 23 of the Foreign Exchange Regulations Act, 1947 (FERA) and 156(1)(8)(89) of the Customs Act, 1969 and section 109, P.P.C. at the FIA's State Bank Circle, Karachi on 19.09.2023. Abdul Karim was arrested and applied for bail, but his application was dismissed on 11.10.2023 by the learned Sessions Judge, Karachi South, acting in his capacity as a Tribunal under the FERA.

1. I have heard the learned counsel for the applicant and the learned Assistant Attorney. General. It is essential to record the Investigating Officer has submitted two challans in two different courts. The challan of offences under the customs legislation has been filed in the court of Special Judge (Customs and Taxation) Karachi. This bail application is restricted to the offences according to the FERA. I understand from the learned counsel that as far as the offences under the Customs Act are concerned, he has yet to file a bail application before the relevant trial court.

2. The learned Additional Attorney General submitted that the case under the FERA against the applicant is that he had made payments to foreign sellers through informal, illegal and parallel banking channels. Buying and selling foreign currency from anybody who is not an authorised dealer is prohibited under section 4 of the FERA. He further submitted that the evidence against the applicant is that he had receipts of purchases and incriminating messages on his phone's WhatsApp messenger. These messages are yet to be thoroughly scrutinized, and it is yet to be determined how payments were made abroad, the exact mode, and to whom they were made. Evidence which will stand the test of legal scrutiny is yet to be obtained by the F.I.A. On the contrary, the FIR seems to reflect that the applicant paid Pakistan Rupees to specific suppliers, whose details are mentioned in the FIR. The order impugned seems to have taken the smuggling of electronic items as its basis, whereas the Tribunal was not seized of that part of the alleged crime. 1500 Saudi Riyals and 5 Omani Riyals were found in the applicant's possession. Possessing foreign currency is not a crime, and that is not a large amount for a person to keep. The applicant should be allowed to explain at trial and provide a record of the mode in which he has made payment to people from whom he claims he has bought the electronic items. The electronic items in question have all been seized and are in the possession of law enforcers. As mentioned, this bail application does not pertain to the alleged offences under the Customs Act, 1997. The case against the applicant is one of further inquiry.

3. The .offence with which the applicant is charged under the FERA carries a potential sentence of up to 5 years and, although not bailable, falls within the non-prohibitory clause of section. 497, Cr.P.C. No apprehension of the applicant being a flight risk has been raised by the F.I.A. Law enforcement has already taken electronic goods and foreign currency into their possession. Considering his profile, the monetary loss already caused to the applicant is of such a nature that the chances of him repeating the offence are greatly diminished. Apart from the forensics of the applicant's phone, the investigation is complete, and the chances of the applicant tinkering with the evidence are also low. I find no extraordinary or exceptional grounds to deny the applicant bail. He does, however, have some explaining to do at trial; thus, while granting him bail, the surety amount is fixed at Rs. five hundred thousand (Rs. 500,000) and a P.R. Bond in the like amount to the satisfaction of the learned trial court.

4. There has been a substantial rise in cases originating from alleged offences, the punishment of which falls within the non-prohibitory clause of section 497, Cr.P.C. A high volume of bail applications coming to the High Court pertains to such cases. Surprisingly, some learned trial courts have denied bail even in cases of bailable offences. Consequently, the High Court is further burdened; apart from the drain on the State exchequer and the litigants' expenses. This is neither fair to a person nor in compliance with the principles enunciated by the Supreme Court on the grant of bail falling within the non-prohibitory clause of section 497, Cr.P.C. The High Court has to ensure that fundamental rights of fair trial and due process are enforced. When the Supreme Court of Pakistan has laid down principles to follow, it is incumbent upon all to comply. I take the opportunity in this bail order to make some general observations; however, these observations are equally applicable to the case at hand.

5. As early as 1977, the Supreme Court, had observed in the case of Mansha Khan and 2 others v. The State (1997 SCMR 449) that:

"An offence under section 325, P. P. C. is punishable with seven years' rigorous imprisonment and is not one of those in which bail refused because of the prohibition in section 437, Cr.P.C. Therefore, bail should not be refused merely because the offence is non-bailable. The learned Assistant Advocate-General opposed the bail or the same consideration the Courts below have not exercised their discretion. However, in the absence of any strong reason to refuse bail, we feel that the Courts below have not properly exercised their discretion in refusing bail based on the number of injuries suffered by Lal Hussain."

1. Further clarity in this regard was brought by the Supreme Court of Pakistan in the case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), where it laid down the following principles:

"It is crystal clear that the grant of bail [in bailable] cases is a right and not favour, whereas, in non-bailable offences, the grant of bail is not a right but concession/grace. Section 497, Cr.P.C. divided non-bailable offences into two categories, i.e. (i) offences punishable with death, imprisonment of life or imprisonment for ten years, and (ii) offences punishable with imprisonment for more than ten years. The principle to be deduced from this provision of law is that in non-bailable offences falling in the second category (punishable with imprisonment for less than ten years), the grant of bail is a rule and refusal an exception. So the bail will be declined only in extraordinary and exceptional cases, for example-

(a) where there is likelihood of absconding of the accused;

(b) where there is apprehension of the accused tampering with the prosecution evidence;

(c) where there is a danger of the offence being repeated if the accused is released on bail and

(d) where the accused is a previous convict."

1. In Subhan Khan v. The State (2002 SCMR 1797), the court said:

"An accused for an offence which does not fall within the prohibitory clause of S.497, Cr.P.C. cannot claim concession of bail as of right, but in the light of general principle, the bail in such cases is granted as a rule."

1. In Zafar Iqbal v. Mohammad Anwar and others (2009 SCMR 1488), it was observed:

"As far as section 489-F, P.P.C. is concerned, it prescribes a sentence of 3 years. In such cases where the offence falls within the non-prohibitory clause, the courts consider favourably by granting bail as a rule but-decline to do so in exceptional cases. As far as exceptional circumstances are concerned, those are to be taken into consideration depending upon each case."

1. In Riaz Jafar Natiq v. Mohammad Nadeem Dar and others (2011 SCMR 1708), it was observed:

"Thus, keeping in view the law laid down in the case of Zafar lqbal v. Muhammad Anwar and others (2009 SCMR 1488) ordaining that where a case falls within a non-prohibitory clause, the concession of granting bail must be favourably considered and should only be declined in exceptional cases."

11 In Mohammad Tanveer v. The State and another (PLD 2017 SC 733), the Supreme Court observed that

"We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably, the grant of bail is refused on flimsy grounds. This practice should end because the public, particularly accused persons charged for such offences, are unnecessarily burdened with extra expenditure, and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court. The diary of the Court is congested with such petitions. This phenomenon is growing tremendously and, thus, cannot be lightly ignored as precious time of the Court is wasted in disposing of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down a guiding principle for the Courts of the country where law points require interpretation." In the same case, it was also observed:

"Once this Court has held in categorical terms that grant of bail in offences not falling within the prohibitory limb of section 497, Cr.P.C. shall be a rule and refusal shall be an exception then, the Courts of the country should follow this principle in its letter and spirit because principles of law enunciated by this Court are constitutionally binding on all Courts throughout the country including the Special Tribunals and Special Courts."

"Grant of bail in offences not falling within the prohibitory limb of S. 497, Cr.P.C, was a rule and refusal an exception; therefore, all subordinate courts, special courts and tribunals should follow said principle in its letter and spirit."

1. Mohammad lmran v. The State and others (PLD 2021 SC 903) was a case in which bail was denied when the punishment fell within the non-prohibitory clause; however, the rule was reiterated in the following words:

"We are cognizant of the fact that the offence under section 489-F, P.P.C. does not fall within the-prohibitory clause of section 497(1), Cr.P.C. and bail in such a matter is a rule and refusal an exception. The grounds for the case to fall within the exceptions meriting denial of bail include (a) the likelihood of the petitioner's abscondence to escape trial; (b) his tampering with the prosecution evidence or influencing the prosecution witnesses to obstruct the course of justice; or (c) his repeating the offence keeping in view his previous criminal record or the desperate manner in which he has prima facie acted in the commission of offence alleged. The prosecution has to show if the case of the petitioner falls within any of these exceptions on the basis of the material on the record."

2024 Y L R 2656

[Sindh]

Before Mohammad Karim Khan Agha and Arshad Hussain Khan, JJ

Muhammad Maqsood and another---Appellants

Versus

The State---Respondent

Criminal Special Jail Anti-Terrorism Appeal No. 39 of 2022, decided on 15th December, 2022.

(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, possessing illicit weapon, act of terrorism---Appreciation of evidence---Whether act of terrorism---Accused were charged that they made firing on police party when they were signaled to stop, police also made firing in retaliation, as a result of which one culprit was injured---Allegations against the accused were that on the fateful day ASI police along with the police party while patrolling in the area considering the accused to be suspicious signaled them to stop but instead of stopping they accelerated their motorbike and the accused sitting on the rear seat of the motorbike started firing upon the police and in retaliation the police also fired upon the accused persons---Resultantly, the accused sitting on the rear seat of the motorbike received a fire arm injury on his left leg and both the accused persons fell down and were apprehended along with unlicensed weapons, that is .30 bore pistols and a stolen motorbike---Accused persons were convicted under S.7(1) (ff) of Anti-Terrorism Act, 1997 ('ATA, 1997')---Legality---No doubt, the offence was heinous one, however, it did not appear in subsection (2) of S.6 of the ATA, 1997, hence, the said offence did not fall within the cognizance of the Anti-Terrorism Courts---Further the mode and manner of the occurrence did not suggest design of accused persons for creating fear and terror in the public rather their only aim was to flee from the scene---Mere gravity or brutal nature of an offence would not provide a valid yardstick for bringing the same within the definition of terrorism---Thus, the offences in the present case did not qualify the meanings of S.6, which is punishable under S.7 of the Act---In such state of affairs, S.7 of the Act was not applicable to the present case---Circumstances established that the prosecution had proved the charge against the accused persons beyond shadow of reasonable doubt---Resultantly, appeal, being bereft of any merit, was accordingly dismissed---Conviction and sentence recorded by trial Court, under Ss.353, 324, 34, P.P.C and under S.23(1)(a) Sindh Arms Act, 2013, was maintained, however, their conviction and sentence under S.7 Anti-Terrorism Act, 1997, was set aside.

Abdul Ghafoor v. The State 2022 SCMR 1527; Tajamal Hussain Shah v. The State 2022 SCMR 1567; Zeeshan alias Shani v. The State 2012 SCMR 428; Liaquat Ali Abbasi and 2 others v. The State 2022 PCr.LJ Note 78; Hashim Raza alias Taaro v. The State 2020 PC.rLJ Note 22; Owais and another v. The State 2022 PCr.LJ 920; Muhammad Younus alias Bona and another v. The State 2022 YLR 924; Tariq Pervez v. The State 1995 SCMR 1345; Muhammad Amir and others v. The State 2020 MLD 1777; Nakeef Nindwani v. The State 2021 MLD 1466; Sohail alias Kashif v. The State 2021 YLR Note 134; Mukhtiar Ahmed alias Atatoo v. The State 2018 YLR Note 203; Muhammad Aslam and another v. The State 1989 MLD 323; Fazal Akbar and another v. The State and another 2013 PCr.LJ 369; Muhammad Saleem and another v. The State 2005 PCr.LJ 644 and Muhammad Iqbal v. The State 2007 YLR 317 ref.

Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Ocular account, proved---Accused were charged that they made firing on police party when they were signaled to stop, police also made firing in retaliation, as a result of which one culprit was injured---Prosecution in order to prove the charge against the accused persons examined 04 witnesses and all of them supported the stance of the prosecution---Defence failed to point out any material discrepancy in the evidence available on the record---Prosecution on its part had established the recovery of the weapons and stolen bike from the accused---First Information Reports were lodged promptly---From both the accused persons firearms were recovered, as deposed by the Police Officers, and were properly sealed, as such there could not be even remote apprehension of it being foisted as alleged---Further from the testimony of the Investigation Officer it was revealed that he sent the seized weapon to Forensic Science Laboratory and collected the report which supported the prosecution case---Investigation Officer also collected the criminal record of the accused persons which established that the accused persons were involved in other cases of similar nature and that witness exhibited such reports along with several other documents in support of the case of prosecution---Police witness had no motive to falsely involve the accused persons in the crime---No ill-will or any enmity was suggested during the cross-examination of all the witnesses---Circumstances established that the prosecution had proved the charge against the accused persons beyond shadow of reasonable doubt---Resultantly, appeal, being bereft of any merit, was accordingly dismissed---Conviction and sentence recorded by trial Court , under Ss. 353, 324, 34, P.P.C and under Ss.23(1)(a) Sindh Arms Act, 2013, was maintained, however, their conviction and sentence under S.7 Anti-Terrorism Act, 1997, was set aside.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Statement of accused under S.342, Cr.P.C---Accused were charged that they made firing on police party when they were signaled to stop, police also made firing in retaliation, as a result of which one culprit was injured---Record showed that one of the accused persons examined himself on oath under S.340(2), Cr.P.C., and denied all the allegations as levelled against him by the prosecution, but he did not produce any witness in his defence---Strangely, the co-accused did not opt for statement on oath despite the fact that both the accused persons in their statements under S.342, Cr.P.C. pleaded their innocence and claimed false implication---Since both the accused persons before the Trial Court were being represented by one and the same counsel as such, it did not appeal to a prudent mind that only one accused was advised to make such statement on oath for his innocence---Insofar as the statement of accused under S.340(2), Cr.P.C was concerned, from perusal of the statement it appeared that the defence counsel did not put questions to the prosecution witnesses in respect of the stance taken in the said statement---Furthermore, in the cross-examination the accused had very candidly admitted certain facts---In such state of affairs, the statement of the accused appeared to be an afterthought besides the fact that co-accused did not give his statement on oath discredited the said statement of accused---In the circumstances, the statement of accused on oath was of no help to the accused and co-accused---Circumstances established that the prosecution had proved the charge against the accused persons beyond shadow of reasonable doubt---Resultantly, appeal, being bereft of any merit, was accordingly dismissed---Conviction and sentence recorded by trial Court, under Ss.353, 324, 34, P.P.C and under S.23(1)(a) Sindh Arms Act, 2013, was maintained, however, their conviction and sentence under S.7 Anti-Terrorism Act, 1997, was set aside.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Minor discrepancies in the statements of prosecution witnesses---Inconsequential---Accused were charged that they made firing on police party when they were signaled to stop, police also made firing in retaliation, as a result of which one culprit was injured---There were minor discrepancies in the evidence led by the prosecution---Minor discrepancies in the evidence generally occurr in each and every case, which are to be over-looked and only material contradictions are to be taken into consideration---Prosecution witnesses were reliable, trustworthy and their evidence was confidence inspiring and the court believed the same especially as they had no ill will or enmity with the accused persons---Circumstances established that the prosecution had proved the charge against the accused persons beyond shadow of reasonable doubt---Resultantly, appeal, being bereft of any merit, was accordingly dismissed---Conviction and sentence recorded by trial Court, under Ss.353, 324, 34, P.P.C and under S.23(1)(a) Sindh Arms Act, 2013 was maintained, however, their conviction and sentence under S.7 Anti-Terrorism Act, 1997 was set aside.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss. 324, 353 & 34---Sindh Arms Act (V of 2013), S. 23(1)(a)---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Police witnesses, evidence of---Scope---Accused were charged that they made firing on police party when they were signaled to stop, police also made firing in retaliation, as a result of which one culprit was injured and fell down---Allegedly, no private person had been cited to witness the arrest and recovery proceedings---Police officials are as good as private witnesses and their testimony cannot be discarded merely for the reason that they are Police Officials, unless the defence succeeds in giving dent to the statements of prosecution witnesses and proves their mala fide or ill-will against accused, which in the present case the defence had neither been able to do nor show during cross-examination---Circumstances established that the prosecution had proved the charge against the accused persons beyond shadow of reasonable doubt---Resultantly, appeal, being bereft of any merit, was accordingly dismissed---Conviction and sentence recorded by trial Court, under Ss.353, 324, 34, P.P.C and under S.23(1)(a) Sindh Arms Act, 2013 was maintained, however, their conviction and sentence under S.7 Anti-Terrorism Act, 1997 was set aside.

Zafar v. The State 2008 SCMR 125 rel.

Barrister Muhammad Awais Shaikh for Appellants.

Ali Haider Saleem, Additional Prosecutor General, Sindh for the State.

Date of hearing: 6th December, 2022.

Judgment

Arshad Hussain Khan, J.---Appellants namely (i) Muhammad Maqsood son of Muhammad Yaseen and (ii) Muhammad Saleem son of Allah Rakha, through the captioned appeal have assailed the consolidated judgment dated 28.01.2022 passed by learned Judge, Anti-Terrorism Court No.II, Karachi, in Special Cases Nos.107, 107-A and 107-B of 2021, emanating from FIRs Nos.39, 40 and 41 of 2021 under sections 353/324/34, P.P.C., read with Section 7 A.T.A., 1997, and 23(i)(a) of Sindh Arms Act, 2013, all registered at Police Station Federal B. Industrial Area, Karachi whereby they were convicted and sentenced under section 265-H(2) Cr.P.C, as under:-

i) The accused Muhammad Maqood son of Muhammad Yaseen is sentenced and convicted for five years and fine of Rs.10,000/- for being in possession of unlicensed pistol of .30 bore and in default of payment of fine to suffer simple imprisonment for 10 days more under Section 23(i)(a) of Sindh Arms Act, 2013;

ii) The accused Muhammad Saleem son of Allah Rakha is sentenced and convicted for five years and fine of Rs.10,000/- for being possession of unlicensed pistol of .30 bore and in default of payment of fine to suffer simple imprisonment for 10 days more under Section 23(i)A of Sindh Arms Act, 2013;

iii) The accused Muhammad Maqsood son of Muhammad Yaseen and Muhammad Saleem son of Allah Rakha are sentenced and convicted under Section 7(1)(ff) of ATA, 1997 as they committed act of terrorism as defined in under section 6(2)(ee) ATA to 14 years rigorous imprisonment;

It was further ordered by the trial court that all the above sentences shall run concurrently and benefit of Section 382-B, Cr.P.C. was also extended to the appellants.

1. Concisely, facts of the prosecution case as per the FIRs are that on 05.02.2021 ASI Akhtar Abbas of Police Station Federal B. Industrial Area, along with other police officials namely HC Adnan Majeed (No.22026) on motorcycle No.KNO-0437 and HC Kamran (No.2226), PC Muhammad Amin on other motorcycle No.KNO-0441, were on patrolling in their area to curb crimes. Meanwhile, at around 2200 hours when they reached at main Shah Waliullah Road near Sheezan Street, Block No.22, Federal B. Area, Karachi, they saw two persons coming on motorcycle from the side of Shafiq More Road, considering them to be suspicious, police signaled them to stop but they speeded up their motorcycle, police chased the culprits, seeing police following them, the culprit who was sitting on the back seat of motorcycle took out the pistol from the fold of his pant and started firing upon police with intention to kill them. In self defence, police also returned fire, as a result, one culprit who was sitting on the back seat of motorcycle received firearm injury on his left leg and both culprits had fallen down from the motorcycle, thereafter, complainant ASI Akhtar Abbas apprehended both the accused. On injury, they disclosed their names to be (i) Muhammad Maqsood son of Muhammad Yaseen and (ii) Muhammad Saleem son of Allah Rakha and in absence of private persons, police officials were made mashirs of arrest and recovery and from body search of injured accused Muhammad Maqsood, police secured one firearm pistol of .30 bore, without number, black color, scratched, with empty magazine and chamber along with cash of Rs.210/-. From the body search of accused Muhammad Saleem, police secured one .30 bore pistol from his right side fold, loaded magazine along with 03 live rounds along with cash of Rs.190/-. On demand, accused could not produce the license of pistols and the documents of motorcycle, as such, accused were arrested at the spot and after completing all the codal formalities they were brought at police station where aforesaid three FIRs were lodged.

2. After registration of the FIRs investigation was assigned to Inspector Gulab Khan Chandio, who after usual investigation submitted Challan before the Administrative Judge, Anti-Terrorism Courts, Karachi. The Charge was framed on 14.04.2021 at Exh.3, against the appellants by learned trial court, to which accused pleaded not guilty and claimed to be tried, vide their pleas recorded at Exhs.4 and 5 respectively. At the trial in order to prove the charge against the appellants the prosecution examined the following witnesses:-

(i) PW-1 HC Muhammad Kamran son of Haji Hashim (No.022261) at Exh.7, who produced memo. of arrest and seizure at Exh.7/A and sketch of the pistol on its back;

(ii) PW-2/complainant ASI Akhtar Abbas son of Muhammad Pehelwan at Exh.8, who produced entry of leaving the police station for the purpose of patrolling at Exh.8/A, Entry No.42 at 11:15 p.m. regarding coming back to police station and of lodging of FIR at Exh.8/B, FIR No.39/2021 under Sections 353/324/34, P.P.C. read with Section 7 ATA, 1997 at Exh.8/C, FIR No.40/2021 under Section 23(i)A of SAA, 2013 at Exh.8/D, FIR No.41/2021 under Section 23(i)A of SAA, 2013 at Ex.8/E, memo. of place of occurrence prepared by the IO at Ex.8/F, Entry by which weapon had been issued to him as Ex.8/G;

(iii) PW-3/Medico Legal Officer, namely, Dr. Ali Ikram son of Muhammad Javed Ikram at Ex.9, who produced ML Certificate No.919/2021 at Ex.9/A, letter dated 05.02.2021 given by HC Nadeem for treatment of injured accused at Ex.9/B;

(iv) PW-4/IO Inspector Gulab Khan son of Faiz Muhammad at Ex.P/10, who produced Entry No.3 at 08:10 hours at Ex.P/10-A, Entry No.21 at Ex.P/10-B of reaching back to PS at Ex.10-C, letter to FSL at Ex.P/10-D, FSL report dated 18.02.2021 at Ex.10-E, CROs of accused at Ex.P/10-F and Ex.10-G, Charge Sheet No.39/2021 at Ex.10-H, Charge Sheet No.40/2021 at Ex.P/10-I, Charge Sheet No.41/2021 at Ex.10-J.

These above witnesses were cross-examined by learned counsel for the appellants. Thereafter, learned Assistant Prosecutor General, Sindh, for the State closed the prosecution side, vide Statement at Exh.11.

1. It appears from the record that statements of accused were recorded under Section 342, Cr.P.C. at Exhs.12 and 13 in which appellants denied all the allegations and stated that they are innocent as no incident has been taken place and nothing were recovered from their possession and alleged recoveries of pistols were foisted against them. Accused Muhammad Maqsood did not examine himself on oath, nor produced any witness in his defence. However, accused Muhammad Saleem examined himself on oath under Section 340(ii), Cr.P.C. at Exh.14 and denied all the allegations as levelled against him by the prosecution but did not produce any witness in his defence.

2. It appears from the record that since all three Special Cases Nos.107, 107-A and 107-B of 2021 arose from aforesaid three FIRs and the same incident therefore, vide order dated 14.04.2021, learned trial court amalgamated all three cases and Special Case No.107 of 2021 was treated as leading case. After appreciating the evidence on record the trial court convicted and sentenced the appellants as mentioned in the impugned judgment. Hence, the present appellants have filed instant appeal against their convictions.

3. Learned counsel for the appellants in his arguments has contended that the appellants are innocent and have falsely been implicated in these cases; that neither any encounter took place nor any recovery was effected from them; that firearm injury has been given to appellant Maqsood at police station; that no private person has been cited to witness the arrest and recovery proceedings; that all the witnesses are police officials, therefore, their evidence cannot be relied upon for maintaining the conviction; that there are major contradictions in the evidence of prosecution witnesses, which creates doubts in the prosecution case, hence, the benefit of same may be given to the appellants; that ingredients of section 6 (2) (ff) of ATA, 1997 are completely missing from the charge and the proceedings conducted before the trial court, as such, the conviction recorded under section of the ATA, 1997 is unwarranted. He has further argued that the learned trial court has failed to consider the fact that there was no reliable, trustworthy and confidence inspiring pieces of evidence available on the record on the basis of which such convictions could be maintained; therefore, the appellants may be acquitted from the charge. In support of his contentions, learned counsel has relied upon the cases of Abdul Ghafoor v. The State [2022 SCMR 1527], Tajamal Hussain Shah v. The State [2022 SCMR 1567]; Zeeshan alias Shani v. The State [2012 SCMR 428], Liaquat Ali Abbasi and 2 others v. The State [2022 PCr.LJ Note 78], Hashim Raza alias Taaro v. The State [2020 PCr.LJ Note 22], Owais and another v. The State [2022 PCr.LJ 920], Muhammad Younus alias Bona and another v. The State [2022 YLR 924], Tariq Pervez v. The State [1995 SCMR 1345], Muhammad Amir and others v. The State [2020 MLD 1777], Nakeef Nindwani v. The State [2021 MLD 1466], Sohail alias Kashif v. The State [2021 YLR Note 134], Mukhtiar Ahmed alias Atatoo v. The State [2018 YLR Note 203] and Muhammad Aslam and another v. The State [1989 MLD 323 (2)]

4. On the other hand, learned Additional Prosecutor General, Sindh, while supporting the impugned judgment contended that the appellants were arrested from the spot and recovery of pistols have been effected from them; that accused were coming on motorbike and seeing the police party started firing upon them and encounter took place between them and as a result of which appellant Muhammad Maqsood received bullet injury; that no enmity has been pointed out by the appellants with the police; that all the prosecution witnesses have fully supported the prosecution case which proved the guilt of the accused; that CRO of both accused shows that they are hardened and desperate criminals, hence, they are not entitled for any relief. In support of his contentions, learned Additional Prosecutor General, Sindh, has relied upon cases of Fazal Akbar and another v. The State and another [2013 PCr.LJ 369], Muhammad Saleem and another v. The State [2005 PCr.LJ 644] and Muhammad Iqbal v. The State reported [2007 YLR 317].

5. We have given our anxious consideration to the arguments of learned counsel for the appellants as well as learned Addl. P.G for the State and have gone through evidence as well as the impugned judgment with their able assistance and have considered the relevant law including those case laws cited at the bar. The evidence produced before the trial court finds an elaborate mention in the impugned judgment as such the same is not being reproduced here to avoid unnecessary repetition.

6. First we would take up the point regarding applicability of section 6 of the Anti-Terrorism Act, 1997 (The Act) to the present case, which is punishable under section 7 of the Act, and likewise we would also consider the legal position of trial of the present appellants by the said forum, which culminated in the conviction of appellants under the said penal provision of the Act and under sections 353/324/34, P.P.C. as well as under section 23(i) SAA, 2013 keeping in view the unlicensed weapons.

7. The scope and applicability of section 6 of the Act has been dilated upon by the Honourable Supreme Court as well as High Courts and the view, which was persistently taken in this regard is that all the acts mentioned in subsection (2) of section 6 of the Act, if committed with design/motive/intent to intimidate the government, public or a segment of the society, or the evidence collected by prosecution suggest that the aforesaid aim is either achieved or otherwise appears as a by-product of the said terrorist activities, are to be dealt with by the special courts established under the Act. Thus, the test to determine whether a particular act is terrorism or not is the motivation, object, design or purpose behind the act and not the consequential effect created by such act. In the present case, the allegations against the appellants are that on the fateful day ASI Akhtar Abbas along with the police party while patrolling in the area considering the appellants to be suspicious signaled them to stop but instead of stopping they accelerated their motorbike and the appellant sitting on the rear seat of the motorbike started firing upon the police and in retaliation the police also fired upon the appellants. Resultantly, the appellant sitting on the rear seat of the motorbike received a fire arm injury on his left leg and both the appellants fell down and were apprehended along with unlicensed arms, that is .30 bore pistols and a stolen motorbike maker Unique was also seized. The said act of the appellants created sense of fear, insecurity in the minds of the people of the locality and as such they were, inter alia, convicted under section 7(1) (ff) of ATA, 1997. No doubt, the offence is heinous one, however, it does not appear in subsection (2) of section 6 of the Act, hence, the said offence does not fall within the cognizance of the Anti-Terrorism Courts. Further the mode and manner of the occurrence does not suggest their design for creating fear and terror in the public rather their only aim was to flee from the scene. It is persistent view of the Honourable Supreme Court that mere gravity or brutal nature of an offence would not provide a valid yardstick for bringing the same within the definition of terrorism. This view was reaffirmed by the larger Bench of the august Supreme Court of Pakistan in the case of Ghulam Hussain and others v. The State and others reported [PLD 2020 SC 61], wherein it has been held has under:

"For what has been discussed above it is concluded and declared that for an action or threat of action to be accepted as terrorism within the meanings of section 6 of the Anti-Terrorism Act, 1997 the action must fall in subsection (2) of section 6 of the said Act and the use or threat of such action must be designed to achieve any of the objectives specified in clause (b) of subsection (1) of section 6 of that Act or the use or threat of such action must be to achieve any of the purposes mentioned in clause (c) of subsection (1) of section 6 of that Act. It is clarified that any action constituting an offence, howsoever grave, shocking, brutal, gruesome or horrifying, does not qualify to be termed as terrorism if it is not committed with the design or purpose specified or mentioned in clause (b) or (c) of subsection (1) of section 6 of the said Act. It is further clarified that the actions specified in subsection (2) of section 6 of that Act do not qualify to be labeled or characterized as terrorism if such actions are taken in furtherance of personal enmity or private vendetta".

Keeping in view the above, the offences in the present case do not qualify the meanings of section 6, which is punishable under section 7 of the Act. This Court, after scanning the entire evidence and material available on the record has come to the conclusion that section 7 of the Act is not applicable to the present case in light of the judgment of the larger bench in Ghulam Hussain's case (supra) and as such the appellants are acquitted of any offence under the ATA.

1. Now we would look into conviction and sentence of the appellants under sections 353/324/34, P.P.C. and under section 23(i). SAA, 2013 recorded by learned trial court in the impugned judgment. Perusal of the record shows that the prosecution in order to prove the charge against the appellants examined 04 PWs and all of them supported the stance of the prosecution. Whereas learned defence counsel failed to point out any material discrepancy in the evidence available on the record. The prosecution on its part had established the recovery of the arms and stolen bike from the appellant. The FIRs were lodged promptly. From both the appellants firearms were recovered, as deposed by the police officers, and were properly sealed as such there cannot be remotely apprehension of it being foisted as alleged. Further from the testimony of the investigation officer PW-4 namely Gulab Khan it reveals that he sent the seized weapon for FSL and collected the report which supports the prosecution case. He also collected the CRO of the appellants which established that the appellants were involved in other cases of similar nature and this witness exhibited such reports along with several other documents in support of the case of prosecution. There was no motive with the police witness to falsely involve the appellants in the crime. We have noted that no ill-will or any enmity was suggested during the cross- examination of all the witnesses. Conversely, appellant Muhammad Saleem during his cross-examination on his statement on oath, has very candidly admitted that "There is no enmity of police with me. There is no enmity of police witnesses with me who have given the evidence in this case".

2. We have also noted that one of the appellants namely Muhammad Saleem examined himself on oath under Section 340(2), Cr.P.C. at Exh.14 and denied all the allegations as levelled against him by the prosecution, but, did not produce any witness in his defence, he, however, was subjected to cross-examination by the state counsel. Whereas very strangely, the other appellant namely Muhammad Maqsood did not opt for statement on oath despite the fact that both the appellants in their statements under section 342 Cr.P.C. pleaded their innocence and claimed false implication. Since both the appellants before the trial court were being represented by one and the same counsel as such, it does not appeal to a prudent mind that only one appellant/accused for his innocence was advised to make such statement on oath. Insofar as the statement of appellant-Muhammad Saleem under section 340 (2) is concerned, from perusal of the statement it appears that the defence counsel did not put questions to the PWs in respect of the stance taken in the said statement. Furthermore, in the cross-examination the appellant has very candidly admitted certain facts. Relevant excerpts from the cross-examination of the Appellant, for the sake of ready reference are reproduced as under:

"It is correct to suggest that 03 FIRs are lodged against me ………… It is correct to suggest that co-accused Maqsood was with me………. There is no enmity of police with me. There is no enmity of police witnesses with me who have given the evidence in this case. It is correct to suggest that 03 FIRs are lodged against co-accused Maqsood. It is correct to suggest that I take narcotics since many years. It is correct to suggest that after I take narcotics I do not remain in my senses, voluntarily states I go to sleep……… I know co-accused Maqsood for the last 2-3 years, voluntarily states we together take narcotics. It is correct to suggest that I had been arrested in case for taking narcotics"

Keeping in view of the above, the statement of the appellant Muhammad Saleem appears to be an afterthought besides by not giving the statement on oath by another co-accused discredited the above said statement of appellant Muhammad Saleem. In the circumstances, the statement of appellant Muhammad Saleem on oath is of no help to the appellants in the present case.

2024 Y L R 2675

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

Nazeer alias Leemon and others---Appellants

Versus

The State---Respondent

Criminal Appeal No. S-98 of 2021, decided on 12th September, 2022.

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

----Ss. 324, 353, 393, 401 & 337-F(ii)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, robbery, belonging to gang of thieves, causing badi'ah---Appreciation of evidence---Benefit of doubt---Accused were charged that they made firing upon the police party, due to which one Police Constable sustained firearm injury; in retaliation police also made firing, due to which one accused sustained firearm injury---Record showed that an alleged police encounter was held between police party and accused, whereby one of the accused/co-accused had sustained fire arm injury on his leg, whereas two of the accused did not sustain even a scratch on any part of their bodies---Simultaneously, injured Police Constable had sustained injury on his leg yet he did not specifically implicate any of the accused during trial through which it could be deduced that he had sustained the injury while he was member of the police party---Non-sustaining of injury on the part of some of the accused persons showed that they had not participated in the crime and as per defense, they were subsequently arrayed and soon arrested by the police only to strengthen the rope of their false case---Though the alleged encounter lasted for about 10 minutes yet no allegation had been brought on record to believe that the accused persons had repeated their fire arms through which it could be believed that they had intention to commit qatl-i-amd of the police party or to deter them from performing their lawful duty---Besides, there was a joint memo. of their recovery and arrest, and such practice on the part of prosecution was weakest type of evidence and could not be relied upon to maintain the conviction against the accused persons---Circumstances established that the prosecution had failed to establish its charge against the accused persons beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Tanveer alias Rabail and another v. The State 2012 YLR 2026; Muneer Malik and others v. The State through P.G. Sindh 2022 SCMR 1494 and Abdul Rehman and others v. The State and others 2020 MLD 342 ref.

Muneer Malik and others v. The State through P.G Sindh 2022 SCMR 1494 rel.

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

----Ss. 324, 353, 393, 401 & 337-F(ii)-Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, robbery, belonging to gang of thieves, causing badi'ah---Appreciation of evidence---Delay of about 23 days in sending the crime weapon and empties for forensics---Accused were charged that they made firing upon the police party, due to which one Police Constable sustained firearm injury; in retaliation police also made firing, due to which one accused sustained firearm injury---Alleged weapons as well as the empties were recovered on 15.07.2020 and such empties were sent to Laboratory on 05.08.2020 with delay of about 23 days---No explanation in respect of such inordinate delay of about 23 days was offered by the prosecution---In the circumstances, the positive Forensic Science Laboratory Report could not be relied upon for maintaining the conviction against the accused---Circumstances established that the prosecution had failed to establish its charge against the accused persons beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Amir and others v. The State 2020 MLD 1777 rel.

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

----Ss. 324, 353, 393, 401 & 337-F(ii)-Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, robbery, belonging to gang of thieves, causing badi'ah---Appreciation of evidence---Recovery of motorcycle allegedly used by accused---Inconsequential---Accused were charged that they made firing upon the police party, due to which one Police Constable sustained firearm injury; in retaliation police also made firing, due to which one accused sustained firearm injury---Accused persons were allegedly shown to be riding a motorcycle, which was used in the commission of offence and was also recovered by the police as was evident from recovery memo---Said motorcycle was not produced before the Trial Court and was not even shown to the accused persons at the time of recording their statements under S.342, Cr.P.C---Circumstances established that the prosecution had failed to establish its charge against the accused persons beyond any reasonable shadow of doubt---Appeal against conviction was allowed accordingly.

Abdul Majeed alias Jawa v. The State 2022 YLR 1938 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---It is not necessary that there should be many circumstances creating doubt---If a single circumstance creates reasonable doubt in a prudent mind about the guilt of any accused, then the accused would be entitled to such benefit as a matter of right and not as a matter of grace or concession.

Mohammad Mansha v. The State 2018 SCMR 772 rel.

(e) Criminal trial---

----Burden of proof---Scope---Responsibility to prove its case against the accused squarely rests upon the prosecution and such burden cannot be shifted to the defence.

Mst. Shamshad v. The State 1998 SCMR 854 and Waqar v. Shaukat and others 2006 SCMR 1139 rel.

Manzoor Hussain N. Larik and Waqar Ali Phulpoto for Appellants.

Syed Sardar Ali Shah, Additional P.G, Sindh along with ASI Muhammad Chuttal Bhelar of PS Sobhodero District Khairpur, Mir's for Respondent.

Date of hearing: 12th September, 2022.

Judgment

Muhammad Saleem Jessar, J.---Through this Crl. Appeal, the appellants Nazeer alias Leemon son of Manzoor Hussain (who has been released after completion of his sentence), Liaquat Ali and Sakhawat Ali (both present in Court on bail) have assailed the judgment dated; 17-11.-2021, passed by the learned Court of Additional Sessions Judge, Gambat, District Khairpur, Mir's, in Sessions Case No.669 of 2020, arising out of Crime No.67/2020, registered at PS Sobhodero, District, Khairpur, Mir's, Re- The State v. Nazeer alias Leemon and 2 others, whereby the appellants were convicted for offences punishable under Sections 401, 324, 353, 337-F(ii) of P.P.C. and sentenced them to suffer R.I for two years for each of first three offences. Accused were further sentenced to pay Daman of Rs.50,000 - to injured PC Ali Muhammad Narejo and in default of payment of Daman accused shall suffer S.I for six months more while extending benefit of Section 382-B, Cr.P.C.

1. Facts of the prosecution case, as unfolded by the complainant in his FIR are that on 15.07.2020, police party of Police Station Sobhodero, District Khairpur Mir's, headed by complainant ASI Muhammad Chuttal Bhellar left for patrolling and when they reached near Banana orchard on link road between Sobhodero and Pindo Motayo in Taluka Sobhodero, they found that accused Nazeer alias Leemon, Liaquat Ali and Sakhawat Ali being armed with deadly weapons formed a gang to commit some heinous crime and one motorcycle was parked near them. When police asked accused to surrender, latter opened fire upon police with intention to commit their qatl-i-amd aims to deter the police from discharging their lawful duty. Police party also retaliated in their defense. The encounter continued for ten minutes during which accused Nazir alias Leemon sustained injury on his left leg, so also PC Ali Muhammad Narejo sustained firearm injury on his left leg. Finally, police succeeded to arrest all three accused along with weapons with them. They arrested the accused and seized the empties fired by both the sides under a joint memo, hence this case.

2. The learned counsel for appellants Liaquat Ali and Sakhawat Ali submits that co-appellant Nazeer alias Leemon was taken away by police from his home and police had made demand of huge amount as illegal gratification, which the appellant had refused to pay, therefore, complainant of this case/police officer became annoyed and by taking summersault had implicated them in this false crime/case by showing a fake police encounter. He next submits that co-appellant Nazeer alias Leemon was half fried and instant false story has been cooked-up/engineered to strengthen the rope of their false allegations. He further argued that role attributed to co-appellant Nazeer alias Leemon and present appellant Liaquat Ali is that they both duly armed with weapons allegedly made fires upon the police party and in result, thereof, one PC Ali Muhammad (Ex.5) had sustained injuries on his leg; however, in his evidence before the learned trial Court, he (the injured PW/PC) did not specify that who caused injury to him, therefore, there was general allegation against co-appellant Nazeer alias Leemon and present appellant Liaquat Ali. As far as the role against present appellant Sakhawat Ali is concerned, he was alleged to have lathi in his hand but he did not use the same. Present appellant Sakhawat Ali is brother of co-appellant Nazeer alias Leemon and present appellant Liaquat Ali is their uncle, therefore, it is also beyond imagination that a person can commit such a crime along with his elders of family. He further submits that appellant Nazeer alias Leemon has been released after completion of his sentence and opted not to contest the appeal. He further submits that by granting instant appeal, present appellants may be acquitted of the charge as the prosecution has failed to establish its charge against them. He further submits that there was joint memo. with regard to their arrest as well as recovery, which is illegal and is not permitted by the law. In support of his contentions, he places reliance upon the cases of Tanveer alias Rabail and another v. The State (2012 YLR 2026), Muneer Malik and others v. The State through P.G. Sindh (2022 SCMR Page 1494) and Abdul Rehman and others v. The State and others (2020 MLD 342).

3. On the other hand, Syed Sardar Ali Shah, learned Additional P.G, Sindh does not oppose the appeal to the extent of appellant Sakhawat Ali as he was having lathi-and did not use it. As far as the appellant Liaquat Ali is concerned, learned Additional P.G opposes the appeal on the ground that the appellant Liaquat Ali was armed with pistol and has made fire upon the police party, whereby deterred them in performance of their lawful duties, he; however, could not controvert the fact that the fire allegedly made by the appellant Liaquat Ali was not specified even the injured PC/PW Ali Muhammad had not specifically deposed against any of the accused regarding the injury, he allegedly sustained.

4. I have heard the learned counsel for appellants Liaquat Ali and Sakhawat Ali as well as learned Additional P.G, Sindh for the State and have gone through the material made available before me on record. It appears that an alleged police encounter held between police party and accused, whereby one of the accused/co-appellant Nazeer alias Leemon had sustained fire arm injury at his leg, whereas appellants Liaquat Ali and Sakhawat Ali did not sustain even a scratch on any part of their body. Simultaneously, injured PC Ali Muhammad had sustained injury on his leg yet he did not specifically implicate any of the accused during trial through which it could be deduced that he had sustained the injury while he was member of the police party. The non-sustaining injury on the part of appellants Liaquat Ali and Sakhawat Ali show that they had not participated in the crime and as per defense, they subsequently were arrayed and soon arrested by the police only to strengthen the rope of their false case. Though the alleged encounter lasted for about 10 minutes yet no allegation has been brought on record to believe that the appellants had repeated their fire arms through which it could be believed that they had intention to commit Qatl-i-Amd of the police party or to deter them from performing their lawful duty. Besides, there is a joint memo. of their recovery and arrest, hence, such practice on the part of prosecution is a weakest type of evidence and cannot be relied upon to maintain the conviction against the appellants. In case of Muneer Malik and others v. The State through P.G. Sindh (2022 SCMR Page 1494) (supra), the Honourable Supreme Court of Pakistan while dealing with the identical issue has held in following terms;

".....So far as the conviction of the appellants under section 13(e) of the Arms Ordinance is concerned, we have noted that recovery memo. and site plan reveal that on 27.05.2007 accused persons while in Police custody jointly led to the recovery of weapons of offence i.e. one Kalashinikov and a T.T. Pistol from a fish pond of one Muhammad Hanif Malik, which in all eventualities is an open place. Nothing has been mentioned as to which of the appellant had first led to the recovery or pointed out the place of recovery and in absence of the same, joint recovery of weapons of offence is of no evidentiary value....."

1. Moreover, the alleged weapons as well as the empties were recovered on 15.07.2020 and such empties were sent to Laboratory on 05.08.2020 with delay of about 23 days and no explanation in respect of such an inordinate delay of about 23 days was offered by the prosecution. In the circumstances, the positive FSL Report cannot be relied upon for maintaining the conviction against the accused. Reliance can be placed upon the case of Muhammad Amir and others v. The State (2020 MLD 1777).

2. Moreover, the appellants were allegedly shown to be ridding a motorcycle, which was used in the commission of offence and was also recovered by the police as is evident from recovery memo, yet such motorcycle was not produced before the learned trial Court even was not shown to the appellants at the time of recording their statements under section 342m Cr.P.C. Reliance can be placed upon the case of Abdul Majeed alias Jawa v. The State (2022 YLR 1938). In the case of Abdul Majeed (supra), the learned Divisional Bench of the Balouchistan High Court has held in para. No. 12 of the judgment as under;

2024 Y L R 2714

[Sindh]

Before Mohammad Abdur Rahman, J

Muhammad Shahid Memon---Appellant

Versus

Jamaluddin (Deceased) through LRs and others---Respondents

IInd Appeal No. 125 of 2019 and C.M.As Nos. 499 of 2020, 2029 of 2021 decided on 10th August, 2023.

Specific Relief Act (I of 1877)---

----S.12---Civil Procedure Code (V of 1908), S.100 & O.XLI, R.27---Second appeal---Additional evidence---Principle---Filling a lacuna---Suit for specific performance of agreement to sell was filed by appellant/plaintiff and the same was dismissed concurrently by Trial Court and Lower Appellant Court---Plea raised by appellant/plaintiff was that Lower Appellant Court dismissed his application to adduce additional evidence---Validity---Each of the documents referred to in the application were available with appellant/plaintiff at the time of adducing evidence before Trial Court---Failure on the part of appellant/plaintiff to adduce evidence of attesting witnesses to Sale Agreement or Supplementary Agreement could only be attributed to appellant/plaintiff's own negligence---Evidence if adduced would be filling a lacuna in the evidence of appellant/plaintiff that he failed to adduce in evidence during trial---Lower Appellate Court correctly refused to adduce such evidence---There was no infirmity or illegality in either of the judgments passed by Trial Court as well as Lowe Appellate Court---Second Appeal was dismissed, in circumstances.

Muhammad Afzal (Ddecd) v. Muhammad Bashir 2020 SCMR 197 and Muhammad Siddique v. Gul Nawaz 2021 SCMR 1480 ref.

Sami Majeed Memon for Appellant.

Ms. Nailia Tabasum Respondent No. 1(i).

Respondent Nos. 2, 3, 4, 5, 6, 7(i) and 7(ii) represented by Ehasanullah Khan.

Date of hearing: 11th May, 2023.

Judgment

Mohammad Abdur Rahman, J.---This is a Second Appeal that has been maintained by the Appellant under Section 100 of the Code of Civil Procedure, 1908 as against the Judgment dated 7 March 2019 and Decree dated 11 March 2019 passed by the IIIrd Additional District Judge Karachi (East) in Civil Appeal No. 214 of 2017 upholding the Judgement and Decree dated 2 August 2017 that had been passed by the 1st Senior Civil Judge Karachi (East) dismissing Civil Suit No. 939 of 2012 that had been instituted by the Appellant for the Specific Performance for the purchase of Plot Nos. 152 and 153, Sector 24, Korangi Industrial Area, Karachi (hereinafter referred to as the "Said Property")

1. Civil Suit No. 939 of 2012 was instituted by the Appellant seeking Specific Performance on a Sale Agreement dated 15 September 2006 and a Supplementary Agreement dated 8 July 2009 for the purchase of the Said Property and construction thereon against a consideration of Rs. 10,000,000 (Rupees Ten Million) purportedly owned by one Jamaluddin who was the Defendant in the Suit and who has since expired (For the sake of convenience Jamaluddin is being referred to as the "Respondent" in this Judgement). The Appellant, in addition, sought damages of Rs. 5,000,000 (Rupees Five Million) for mental torture and agony caused to the Appellant by the Respondent for not performing on the contract as purportedly entered into as between the Appellant and the Respondent.

2. The Respondent filed his Written Statement and has contended that:

(i) The Said Property was owned by the Respondent's mother who had since passed away and was succeeded to her seven children;

(ii) The Appellant was the tenant of the Respondent and had rented out the Said Property initially for a sum of Rs. 25,000 (Rupees Twenty Five Thousand) and which rent had at the time of the filing of the Written Statement increased to Rs. 132,000 (Rupees One Hundred and Thirty Two Thousand)

(iii) That the Respondent not being the sole owner of the Said Property could not have entered into the Sale Agreement dated 15 September 2006 or the Supplementary Agreement dated 8 July 2009 with the Appellant.

1. From the pleadings the following issues were framed by the Court:

" … (i) Whether the Suit is maintainable?

(ii) Whether the defendant is bound to fulfil his contractual obligations at per sale agreement dated 15-09-2006 and supplementary agreement dated 08-07-2009?

(iii) Whether the plaintiff is entitled for any damages?

(iv) Whether the plaintiff is entitled for relief claimed?

(v) What should the decree be?"

1. The matter was heard by the 1st Senior Civil judge Karachi (East) who by his Judgement and Decree dated 2 August 2017 had been pleased to dismiss Civil Suit No. 939 of 2012 holding that:

(i) That the Suit was maintainable;

(ii) That as the execution of the Sale Agreement dated 15 September 2006 and the exeution of the Supplementary Agreement dated 8 July 2009 had been denied by the Respondent, it was incumbent on the Appellant to prove the execution of both of these documents in accordance with clause (a) of Sub-Article 2 of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984 and as the Appellant had failed to adduce the evidence of the attesting witnesses to prove the execution of these documents the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009 they remained unproved and therefore specific performance was refused; and

(iii) That as the Appellant was unable to show that he was entitled to Specific Performance on the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009, no question of claiming any damages arose

1. Being aggrieved and dissatisfied with the Judgment and Decree dated 2 August 2017 that has been passed by the 1st Senior Civil Judge Karachi (East) dismissing Civil Suit No. 939 of 2012, the Appellant preferred Civil Appeal No. 214 of 2017 before the IIIrd Additional District Judge Karachi (East) who by a Judgment dated 7 March 2019 and Decree dated 11 March 2019 was also pleased to dismiss Civil Appeal No. 214 of 2017 holding that:

(i) As the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009 had been denied by the Respondent, it was incumbent on the Appellant to prove the execution of both of these documents in accordance with clause (a) of Sub-Article (2) of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984 and as the Appellant had failed to adduce in evidence the attesting witnesses to prove the execution of the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009, those documents remained unproved and therefore specific performance was refused;

(ii) That the right to adduce additional evidence on appeal under Ordre XLI Rule 27 in respect of a memorandum of deposit of title deed dated 17 September 2009, a promissory note dated Rs. 5,500,000 (Rupees Five Million Five Hundred Thousand) and the attesting witnesses could not be adduced:

(a) the documents were not mentioned in the Plaint and would be adduced to fill lacunas in the evidence of the Appellant;

(b) as these documents were prima facie available with the Appellant at the time of evidence being adduced and hence could not be adduced at this belated stage; and

(c) the Appellant could not fill in lacunas in their evidence at the Appellate stage

1. The Appellant has preferred this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 submitting that both the IIIrd Additional District Judge Karachi (East) in Civil Appeal No. 214 of 2017 and the 1st Senior Civil Judge Karachi (East) in Civil Suit No. 939 of 2012 failed to appreciate that in a Tenancy Agreement dated 1 May 2008 the following clause existed:

" … THE LESSOR HEREBY COVENANTS WITH THE LESSEE AS FOLLOWS…

3. Inspite of this agreement, the terms and conditions of the Sale Agreement dated 15 September 2006 executed by the parties in resect of the same property shall continue to operate and both the parties shall be bound to act upon it in its true sense."

He further contended that in the cross-examination of the Respondent on 30 May 2017 he had admitted that:

" … It is correct to suggest that at Exh:D/1 contains my signature on all three pages. I own each and every word of rent agreement at Exh:D/1. It is incorrect to suggest that in clause -3 at page No. 3 of rent agreement at Exh D/1 have admitted execution of sale agreement dated 15-09-2006. Vol says that agreement at EX:D/1 was executed in the office of plaintiff and page No. 1 was got exchanged by plaintiff through his accountant and the changed copy was supplied to me."

Mr. Sami Majeed, appeared on behalf of the Appellants and contended that as the Respondent had admitted to "owning" each and every word of the rent agreement he had accepted that the Sale Agreement dated 15 September 2006 had been executed by him. There being such an admission the Appellant was not bound thereafter to adduce evidence of the attesting witnesses to prove the execution of either the Sale Agreement dated 15 September 2006 or the Supplementary Agreement dated 8 July 2009.

1. He further contends that he had moved an application under Order XLI Rule 27 of the Code of Civil Procedure, 1908 to adduce additional evidence so as to prove that he had paid the balance sale consideration for the purchase of the Said Property and which had incorrectly been declined by the IIIrd Additional District Judge Karachi (East) in Civil Appeal No. 214 of 2017. He finally contended that the as per clause 2 of the Supplementary Agreement dated 8 July 2009, he had been granted a period of 120 days to complete the transaction for acquiring the Said Property and Suit No. 939 of 2012 was maintained within three years of the expiry of that period and hence was maintainable. He did not reply on any case law in support of his contentions.

2. Ms. Naila Tabassum appeared on behalf of the Respondent No. 1 and has contended that the entire transaction that is being advanced by the Appellant is a sham. She contended that the Said Property was owned by the mother of the Respondent and therefore the Respondent never had the capacity to transact on the said Property as at any given time as:

(i) the mother of the Respondent i.e. Aisha Riaz was the owner of the Said Property, and

(ii) after Aisha Riaz passing, the Said Property was inherited by the Respondent and his six brothers and sisters

It was therefore maintained that the property having never been solely in the Respondent name, specific performance on the purported Sale Agreement dated 15 September 2006 or the Supplementary Agreement dated 8 July 2009 cannot be granted. She also did not rely on any case law in support of her contentions. Mr. Ehsanullah Khan, representing the Respondents Nos. 2 to 7 adopted the arguments of Ms. Naila Tabassum.

1. I have heard the parties and have perused the record. It is apparent that the Respondent has specifically denied the existence of both the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009. Under Article 117 of the Qanun-e-Shahadat Order, 1984 it has been clarified that:

" … 117. Burden of proof:

(1) Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person."

As such prima facie the obligation is on the Appellants to prove both the existence of the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009. Regarding the manner in which a document is to be proved Article 79 of the Qanun-e-Shahadat Order, 1984 has clarified that:

" … 79. Proof of execution of document required by law to be attested:

If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of given Evidence.

Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.

(Emphasis is added)

This section may be read in conjunction with the provisions of Article 17 of the Qanun-e-Shahadat Order, 1984.

" … 17. Competence and number of witnesses:

(1) The competence of a person to testify, and the number of witnesses required in any case shall be determined in accordance with the injunctions of Islam as laid down in the Holy Qur'an and Sunnah:

(2) Unless otherwise provided in any law relating to the enforcement of Hudood or any other special law, (a) In matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accordingly; and

(b) In all other matters, the Court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case may warrant."

(Emphasis is added)

Clearly both the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009 are documents that "pertain to financial and future obligations" and which have been reduced to writing need to be proved by either two men or one man and two men. The exception to this rule is contained in Article 81 of the Qanun-e-Shahadat Order, 1984. That article states as under:

" … 81. Admission of execution by party to attested document:

The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested."

The Supreme Court of Pakistan in the decision reported as Muhammad Afzal (Decd) v. Muhsmmad Bashir has held that:

" … Article 81 is an exception to the general rule that where a document is required by law to be attested the same cannot be used in evidence unless two attesting witnesses are called for the purposes of proving its execution. The simple reading of Article 81 shows that where the execution of a document is admitted by the executant himself, the examination of attesting witness is not necessary."

As such in the event that the Respondent had in his deposition admitted as to the execution of the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009 then there would be no need on the part of the Appellant to prove either of those two documents.

1. I am not able to accept the contentions of the Appellant that both the Sale Agreement dated 15 September 2006 and the Supplementary Agreement dated 8 July 2009 did not need to be proved on account of a purported admission in the cross-examination where the Respondent states that:

" … I own each and every word of rent agreement at Exh:D/1"

While, the Respondent alleges that a page of the rent agreement that was attached as Exhibit D/1 was replaced, it is not disputed that the document that was exhibited as D/1 in the evidence contained a clause which averred to the existence of the Sale Agreement dated 15 September 2006 and which the Respondent had "owned". However, critically as the document that was exhibited as D/1 was executed on 1 May 2008 it does not aver to any admission of the Supplementary Agreement dated 8 July 2009. Hence, even if the contentions of the Appellant are to be accepted i.e. that on the basis of the admission made by the Respondent he is absolved from adducing evidence of the attesting witnesses to the Sale Agreement dated 15 September 2005, this would not absolve him of adducing evidence of the attesting witnesses to the Supplementary Agreement dated 8 July 2009. This was not done and as such this document having been denied by the Respondent had to be proved under the provisions of clause (a) of SubSection (2) of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984. The Appellant having failed to adduce evidence of the existence of a document that he is seeking specific performance on would disentitle him from maintaining a suit for Specific Performance. I am therefore of the opinion that both the IIIrd Additional District Judge Karachi (East) in the Judgement dated 7 March 2019 and Decree dated 11 March 2019 passed in Civil Appeal No. 214 of 2017 and the 1st Senior Civil Judge Karachi (East) in the Judgement and Decree dated 2 August 2017 that has been passed in Civil Suit No. 939 of 2012 had correctly declined to grant specific performance on the Supplementary Agreement dated 8 July 2009 as the same had not been proved within the perimeters of clause (a) of Sub-Section (2) of Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984.

1. In addition, it has also come on record that the Said Property was owned by the mother of the Respondent i.e. Aisha Riaz. There is also no dispute as to the fact that after her demise the Said Property was inherited by her seven children including the Respondent. The Said Property having never been solely owned by the Respondent, it is apparent that the Respondent did not have the requisite capacity to sell the Said Property. While, there are various Power of Attorneys on record from various siblings of the Respondent none of them have been attested by a consular officer of the Pakistan Embassy or of Pakistan High Commission so as to give those documents the presumption of validity under the provisions of Article 95 of the Qanun-e-Shahadat Order, 1984 read with Section 3 of the Diplomatic and Consular Officers (Oaths and Fees) Act, 1948. Each of those documents has only been attested by a Notary Public of the United States of America and who cannot be treated as Notary Public under Section 3 of the Notaries Ordinance, 1961 and thereafter gain the cover of Article 95 of the Qanun-e-Shahadat Order, 1984.

2. On the basis of the reasoning as stated above, I am of the opinion that the Respondent lacked the capacity to execute either the Sale Agreement dated 15 September 2006 or the Supplementary Agreement dated 8 July 2009 could not affect the transfer of the Said Property on behalf of his mother and his siblings to the Appellant and which would also prevent the grant of a Decree for Specific Performance in respect of the right, title and interest of the mother of the Respondent while she was alive and after her demise as to the Specific Performance of the undivided share held by the siblings of the Respondent after their mothers demise in favour of the Appellant.

3. The final issue that had been pressed by the Appellant was that the IIIrd Additional District Judge Karachi (East) in the Judgment dated 7 March 2019 and Decree dated 11 March 2019 passed in Civil Appeal No. 214 of 2017 had illegally denied him the right to:

(i) produce a Memorandum of Deposit of Title Deed dated 17 September 2009;

(ii) a Promissory Note of Rs. 5,500,000; and

(iii) adduce the evidence of the attesting witnesses to the Sale Agreement dated 15 September 2006 or the Supplementary Agreement dated 8 July 2009.

1. Order XLI Rule 27 of the Code of Civil Procedure, 1908 states that:

" … 27. (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary in the appellate Court, But if.

a) The Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted or, b) The Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause.

The Appellate Court may allow such evidence or document to be produced or witness to be examined.

(2) Wherever additional evidence is allowed to be produced by an Appellate Court the Court shall record the reason for its admission."

The provisions of this Rule have been interpreted by the Supreme Court of Pakistan in the decision reported as Muhammad Siddique v. Gul Nawaz wherein it was held that:

" … as to the production of additional evidence, the powers of the appellate court under Order XLI, Rule 27, C.P.C. are not absolute but are structured by the provisions of rule 27 itself and could only be exercised in cases where (i) the Court whose decree is under appeal has refused to admit a piece of evidence which ought to have been admitted or (ii) the Appellate Court requires any document to be produced or any witness to be examined to enable it pronounce judgment or (iii) for any substantial cause and that too after recording reasons."

The circumstances under which an appellate court can adduce further evidence is therefore limited to:

(i) reviewing the decision of a trial court when it has denied evidence to being adduced;

2024 Y L R 2738

[Sindh]

Before Muhammad Shafi Siddiqui and Ms. Sana Akram Minhas, JJ

Shaheed Shah Inayat Village and others---Appellants

Versus

Ashiq Hussain Vighio and others---Respondents

High Court Appeals Nos. 128, 129 and 5 of 2022, decided on 10th May, 2024.

Specific Relief Act (I of 1877)---

----Ss.42 & 54---Civil Procedure Code (V of 1908), O. VII, R.11---Suit for declaration and injunction---Rejection of plaint---Cause of action---Appellants/ plaintiffs were aggrieved of construction work on an amenity land---Trial Court rejected the plaint---Appellants / plaintiffs in their memo of appeal stated that they did not assert ownership over, nor sought to repurpose the amenity land for private or commercial use---Appellants / plaintiffs supported construction of designated public facilities but averred that such amenities should remain within the area allocated for them and not encroach upon adjacent village land---Held, that amenity land was designated for girls' college, public park and graveyard and neither formed part of adjacent village land nor could the latter lay any claim over it---Karachi Development Authority (KDA) had been tasked with the construction of the public park, which work was ongoing---Division Bench of High Court set aside the order passed by Judge in Chambers of High Court and restored the plaint---Appeal was allowed accordingly.

Parveen Begum v. Shah Jehan PLD 1996 Kar. 210; Abdul Razzak Khamosh v. Abbas Ali PLD 2004 Kar. 269; Arif Majeed Malik v. Board of Goverors 2004 CLC 1029; Naseem-ul-Haq v. Raes Aftab Ali Lashari 2015 YLR 550; Al Meezan Investment Management Company v. WAPDA First Sukuk Company PLD 2017 SC 1; Jewan v. Federation of Pakistan 1994 SCMR 826; Raja Ali Shah v. Essem Hotel 2007 SCMR 741; Abdul Karim v. Florida Builders PLD 2012 SC 247; Abdul Karim v. Nasir Salim Baig 2020 SCMR 111; Ardeshir Cowasjee v. Karachi Building Control Authority 1999 SCMR 2883; Puri Terminal Ltd. v. Government of Pakistan 2004 SCMR 1092 and Supreme Court Employees Cooperative Housing Society v. Marshal Construction Management 2022 SCMR 366 ref.

Mukesh Kumar G. Karara and Sajid Ali for Appellants.

Fayyaz Ahmed Metlo for Respondents.

Usman Farooq for Interveners (In High Court Appeal No. 129 of 2022).

Abdul Jaleel Zubaidi along with Ms. Saima Imdad Mangi, Assistant Advocate General for the Province of Sindh.

Date of hearing: 24th April, 2024.

Order

MS. Sana Akram Minhas, J.---The Appellants of the instant HCA No.128/2022 and HCA No.129/2022 assail a common order dated 14.3.2022 ("Impugned Order") whereby plaint of Suit No.1598/2013 ("Suit 1598") and plaint of Suit No.888/2014 ("Suit 888") instituted by the Appellants (who were Plaintiffs in the Suits below) were rejected.

1. In HCA No.5/2022, the Appellants have assailed an order dated 25.11.2021, whereby the Single Judge recalled the ad interim order (dated 20.11.2018) which had been operating in Suit 1598 (plaint of which Suit has subsequently been rejected vide the Impugned Order).

Factual Context

1. Briefly, the fundamental facts that emerge are:

i) In December 2013, the Appellants filed Suit 1598 seeking "Declaration, Permanent Injunction, Demarcation, Cancellation of Documents, Removal of Encroachment and Possession." The Appellant No.1 is a residents welfare association of a village known as Shaheed Shah Inayat Village ("SSI Village"), with Appellants Nos.2 to 80 claiming to be its inhabitants. The Appellants aver SSI Village is situated in NC No.1, Scheme No.33, Deh Songal, Sector 24-A, Karachi.

ii) In May 2014, the Appellant No.1 along with two others, initiated Suit 888 seeking "Declaration, Permanent Injunction, Removal of Encroachment and Possession". They contended that the Province of Sindh (through the Secretary of Education) and the Education Works Department were conducting construction activities on land belonging to SSI Village.

iii) According to the Appellants, SSI Village was "regularized" with the approval of the Chief Minister of Sindh. In February 2012, the Chief Minister sanctioned a summary for granting leasehold rights to the occupants of SSI Village, covering 20 acres in NC No.1, Scheme No.33, Karachi. This action was purportedly in accordance with the Statement of Conditions dated 21.11.2008 ("SOC, 2008") issued under section 10(2) of the Colonization and Disposal of Government Lands (Sindh) Act, 1912 ("COGLA, 1912"). The summary alleges:

" In compliance of orders of Hon'ble High Court of Sindh, Karachi passed in C.P. No.2325/2010 dated 02.11.2011 (Annex 'B'), the Deputy Commissioner, Malir, Karachi vide his letter No.DC/ K/Malir/ 7739/ 2011 dated 30.12.2011 has forwarded report of Assistant Commissioner … … …."

iv) Thereafter, the Land Utilization Department sent a letter dated 17.7.2012 to the Deputy Commissioner (Malir), Karachi confirming that SSI Village was processed for regularization. However, (just like the summary for the Chief Minister) the letter similarly alleged that:

"Keeping in view, the judgment and order dated 4.6.2012 passed by the Hon'ble High Court of Sindh, Karachi, the subject village is hereby regularized on the terms and conditions laid down in the policy."

Deliberate Misinterpretation of Order of Division Bench

v) The fact that the Division Bench of this Court did not issue any orders for the regularization of SSI Village, coupled with the deliberate and repeated misinterpretation of the Division Bench's order by the Land Utilization Department, to further their own agenda and fabricate a false semblance of legality in order to justify their action, is evident from the contents of the order itself. The relevant extract is:

Order dated 2.11.2011 in C.P. No.D-2325/2010:

" In the circumstances while disposing of both the applications, we direct the Secretary, Land Utilization Department, Government of Sindh, to consider the case of the village of the applicants/ intervenors and if the law provides for its regularization to pass appropriate order in accordance with law and rules and after providing opportunity of hearing to all persons who may be affected and also maintaining and providing for the amenities and dispose of such application of the applicant/ interveners preferably within a period of two months and report compliance to the Member Inspection Team-I of this Court. A copy of this order be sent to the Secretary, Land Utilization Department, Government of Sindh for making compliance."

[Emphasis added]

vi) The misinterpretation of the earlier Division Bench's order dated 2.11.2011 was recognized by a separate Division Bench in another petition filed by SSI Village (viz. C.P. No.D-446/ 2012-M/s Shaheed Shah Inayat Village v. Province of Sindh and others), which, on 22.11.2012, issued the following order:

Order dated 22.11.2012 in C.P. No.D-446/2012:

"… … …. Whatever the case may be Mr. Khurram Iqbal and Mr. Miran Muhammad Shah learned AAG seek verification of such document and assist the Court whether village within municipal limits could have been sanctioned on the basis of order, which did not direct regularization but merely recorded, if it is permissible under the law."

[Emphasis added]

vii) Even though the clear and unequivocal orders of the learned Division Bench are self-evident, the Government of Sindh, Land Utilization Department and the Appellants persist in falsely claiming that SSI Village was regularized based on the aforementioned court orders (as is patent from paragraphs 4 and 5 of the memo of Appeal).

viii) As per the Appellants, the demolition of houses within the SSI Village by occupants of adjacent Shah Nawaz Shar Village, along with the encroachment and commencement of construction activities upon SSI Village land by Respondents Nos.1 to 4, prompted the Appellants to initiate Suit 1598 seeking the following reliefs:

a) Declare that the Plaintiffs Nos.2 to 80 and other Villagers who are members of the Plaintiff No.1 are owners/ lessees of their respective Plots in Shaheed Shah Inayat Village measuring 20-00 Acres piece of land of Shaheed Shah Inayat Village situated in Na-Class No.1, Scheme No.33, Deh Songal, Sector 24-A for 99 years.

b) Declare that any encroachment on the land of Shaheed Shah Inayat Village by the Defendants No.1 to 4 and anybody else claiming through and under them is illegal and without lawful authority.

c) Direct the Defendants Nos.5 to 8 to carryout demarcation of the Village Shaheed Shah Inayat and demolish/remove the encroachment made on the Plaintiffs land. The Defendants Nos.5 to 8 may also be directed to handover possession of the encroached land of the Shaheed Shah Inayat Village to the Plaintiffs

d) Direct the Defendants Nos.1 to 4 to deliver up the documents, if any, in their favour, executed by the Defendants Nos.5 to 7 in respect of 20-00 Acres of piece of land of Shaheed Shah Inayat Village in this Honourable Court and same may be cancelled.

e) Restrain the Defendant Nos.1 to 8 and any other person claiming through and under them to interfere in the Village of Shaheed Shah Inayat and to encroach upon it in any manners whatsoever.

f) Any other relief/ reliefs, this Honourable Court may deem fit and proper under the circumstances of the case.

Respective Arguments

1. The learned Counsel representing the Appellants argued that:

i) The Plaint is not hit by any of the defects described in Order VII/rule 11, C.P.C;

ii) No purported cancellation order of the regularized SSI Village has been issued by the Chief Minister, Sindh and nor is any available on record;

iii) Cancellation orders cannot be issued in violation of due process or the principles of natural justice, which necessitate providing prior notice to and conducting a hearing for the affected parties (i.e. Appellants);

iv) Assuming SSI Village regularization is cancelled, the allotment orders/sanads issued to individual inhabitants (Appellants Nos.2 to 80) nevertheless remain intact and valid, thereby providing them with the legal status under section 42 of the Specific Relief Act, 1877 ("SRA, 1877") to maintain their Suit(s);

v) The Appellants are neither claiming ownership of nor converting the amenity land (reserved for girls college, public park and graveyard) for private or commercial purposes.

1. The learned Assistant Advocate General and the Counsel for private Respondents supported the Impugned Order and contended as follows:

i) The SSI Village is a fictitious/dummy village which has never existed;

ii) Although the SSI Village has claimed a Katchi Abadi status, it is not included in the master list of Katchi Abadis nor declared as such by the Sindh Katchi Abadis Authority;

iii) To qualify for grant under the SOC, 2008, a village must exist on state land on or before 31.12.2000. However, satellite images provided by SUPARCO display that no construction, buildings, amenities are visible in the image upto July 17.7.2011;

iv) The letter of 27.11.2018 from the Principal Secretary to the Chief Minister of Sindh constitutes cancellation orders for SSI Village and/or the land granted for it.

Impugned Order

1. The record reflects that no specific application under Order VII/rule 11, C.P.C. was filed by any of the Respondents in Suit 1598 and Suit 888. Nonetheless, through the Impugned Order, the plaints of the Appellants in the aforesaid two Suits were rejected. In reaching this decision, the learned Single Judge arrived at the following conclusion:

" 12. Perusal of above reflects that apex Court has directed that all plots reserved for amenity purpose shall be reiterated [retrieved] back and province of Sindh is required to execute the same.

1. In view of above discussion, it is categorical that plaintiffs have failed to establish that they acquired any vested right in the subject land as the registration of the village has been cancelled by the competent Authority and in the records the said land is State Land reserved for Girls College, Graveyard and Family Park and under the law status of an amenity land cannot be changed or altered. The Plaintiffs are seeking their ownership in the state land without having their legal character. Thus, the Suits are barred under Section 42, of the Specific Relief Act, 1877. Hence, present plaints are rejected. Consequently, J.M has become infructuous Accordingly, suits and J.M are disposed of. "

Points For Determination

1. We have heard the arguments of the respective sides and have also considered the record. In accordance with Order XLI/rule 31, C.P.C, the pivotal points formulated for determination herein are:

i) Whether the Appellants lacked the legal character to sue under section 42 SRA, 1877?

ii) Whether the Appellants' Suit 1598 and Suit 888 failed to establish a cause of action or appeared to be barred by any law based on the statements in the plaints?

Argument Evaluation

1. The primary consideration that weighed with the learned Single Judge was that the Supreme Court's directive mandated the retrieval of plots reserved for amenity purposes. Further, the Appellants had failed to establish a vested right in the subject land, considering that SSI Village regularization was cancelled and the land was designated as State Land for specific purposes. Consequently, the Appellants' attempt to claim ownership without legal character rendered the Suits barred under section 42 SRA 1877 and the plaints liable for rejection under Order VII/rule 11, C.P.C.

Section 42 of Specific Relief Act, 1877

1. If any rights stemming from property ownership are infringed or threatened, the aggrieved individual has the right to initiate a suit under section 42 SRA 1877 (since this section allows individuals with legal rights over property to initiate legal action). This suit involves seeking a declaration against any person denying or attempting to deny the title or related rights to the property. The court may then declare the plaintiff's entitlement to those rights or characteristics. The above tenets are exemplified in Parveen Begum v. Shah Jehan (PLD 1996 Kar. 210) and Abdul Razzak Khamosh v. Abbas Ali (PLD 2004 Kar. 269).

2. The Appellants had, amongst others, sought a declaration affirming their ownership or leasehold rights over their individual plots within SSI Village on the basis of allotment orders/sanads. If the Appellants' property rights are infringed upon, section 42 SRA, 1877 provides protection.

3. That said, the scope of section 42 SRA 1877 does not exhaustively cover all situations necessitating a declaration. Even in scenarios not explicitly addressed by this section, the requisite declaration may be granted under the broader provisions of the law. The precedents set by Arif Majeed Malik v. Board of Governors (2004 CLC 1029) and Naseem-ul-Haq v. Raes Aftab Ali Lashari (2015 YLR 550) are illustrative of this legal principle.

Purported Issuance of Order Cancelling Village Regularization and Land Grant

1. The official Respondents argue that during the pendency of Suit 1598 and Suit 888, the regularization of SSI Village has been revoked, a claim contested by the Appellants. However, on our specific query, the learned Assistant Advocate General explained that while no explicit cancellation order exists, the letter dated 27.11.2018 from the Principal Secretary to the Chief Minister, Sindh, conveying the Chief Minister's directives for "immediate necessary action," effectively acts as a cancellation directive for SSI Village and/or the land granted for it.

2. In the absence of a definitive cancellation order, it could not be conclusively concluded that the regularization of SSI Village has been officially revoked. Therefore, under the circumstances, it is untenable to assert that the Appellants lacked grounds or cause of action for initiating or continuing the lawsuit.

Order VII/rule 11 C.P.C.

1. The "rejection of plaint" and "dismissal of suit" are distinct concepts with different consequences. It is now an established legal principle that the question whether a suit is likely to succeed or not is independent of whether or not the plaint should be rejected (see Al Meezan Investment Management Company v. WAPDA First Sukuk Company-PLD 2017 SC 1). It is common to observe situations where a plaint could not be rejected, yet the suit was eventually dismissed for various reasons.

2. In the case of Jewan v. Federation of Pakistan (1994 SCMR 826), the Supreme Court determined that only the contents of the plaint are to be considered, and the defence presented in the written statement is to be ignored. However, it was also noted that if there is additional material presented alongside the plaint and admitted by the plaintiff, the court may also take it into account.

3. The Supreme Court in Raja Ali Shan v. Essem Hotel (2007 SCMR 741) ruled that it is incumbent upon a court to dismiss a plaintiff's claim if, upon examination, it is evident that the suit lacks competence. Moreover, the court not only possesses the authority but also bears the responsibility to dismiss the plaintiff's claim, even in the absence of a formal application from any party, if it violates any of the stipulations outlined in Order VII/rule 11, C.P.C.

4. In Abdul Karim v. Florida Builders (PLD 2012 SC 247), the Supreme Court held:

"Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint. However, this does not mean that the court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order VII, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which is inherent in every court of justice and equity to decide whether or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the court must examine the statements in the plaint prior to taking a decision.

Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect. In other words the court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence. In Order VII, Rule 11 cases the question is not the credibility of the plaintiff versus the defendant. It is something completely different, namely, does the plaint appear to be barred by law.

Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint. "

1. A plaint could be rejected under Order VII/rule 11, C.P.C if it failed to establish a cause of action or if the suit appeared to be prohibited by any law based on assertions made within the plaint. Neither the Respondents' Counsel referenced any applicable legal provision, nor did such provisions appear in the Impugned Order, that would warrant or justify the dismissal of the Appellant's two Suits on an application of the provisions of Order VII/rule 11 C.P.C. As demonstrated above, the Appellants had a legitimate cause of action due to the threat posed to their title over the land granted.

2. We, therefore, find ourselves unable to agree with the analysis and conclusion put forth in the Impugned Order. If the allegations or contents of the plaint are found to be inaccurate or unsubstantiated, it could ultimately result in the dismissal of the suit. This dismissal often occurs after the evidence has been recorded during the trial proceedings. However, if such a conclusion can be reached without evidence being recorded, the suit should at least be dismissed after the framing of issues.

Land Reserved for Amenities Including Girls' College, Public Park and Graveyard

1. The Impugned Order cites Supreme Court's directives passed in Constitution Petition No.9/2010 ((late) Naimatullah Khan, Advocate v. Federation of Pakistan and others - which was filed by the then Mayor of Karachi) directing that all plots reserved for amenity purpose shall be retrieved back. A series of orders have been passed by the Supreme Court in the said case and one such order dated 22.1.2019 (reported as Abdul Karim v. Nasir Salim Baig - 2020 SCMR 111) commands as follows:

" ... … … … … … … ….

Besides Jam Sadiq Ali Park, there are so many other amenity plots in the city meant for parks, playgrounds and other amenity use as per the original Master Plan of the city which has been allowed to be converted into commercial use. DG shall take steps to have all such plots which were originally meant for residential purposes amenity plots and playgrounds go to restore them to original position and remove all illegal and unlawful construction on such plots. … … … … … This complete ban in cessation of conversion of residential plots, amenity plots like that of parks, playgrounds and other amenities shall apply all across Karachi City including cantonment areas. … … … …"

1. Even otherwise, the Supreme Court's ruling in the seminal case of Ardeshir Cowasjee v. Karachi Building Control Authority (1999 SCMR 2883) unequivocally prohibits the conversion of amenity plots to any other use, underscoring that such actions are illegal and cannot be tolerated.

2. The Appellants in their memo. of Appeal (in Grounds I and J) categorically state that the Appellants do not assert ownership over, nor seek to repurpose, the amenity land for private or commercial use. They support the construction of designated public facilities but aver that these amenities should remain within the area allocated for them and not encroach upon SSI Village land.

3. Be that as it may, the amenity land, inter alia, designated for the girls' college, public park and graveyard can neither form part of the SSI Village land and nor can the latter lay any claim over it. The record reflects that the Karachi Development Authority (KDA) has been tasked with the construction of the public park viz. Mohtarma Benazir Bhutto Family Park situated in Gulzar-e-Hijri, Sector 24-A, KDA Scheme No.33, Karachi which work is ongoing.

Injunctive Orders

1. The learned Assistant Attorney General and other Respondents have raised significant doubts regarding the authenticity of the SSI Village, alleging it to be a fictitious, bogus entity, concocted to unlawfully seize and swallow valuable state land held in trust by the Province of Sindh.

2. Upon our appraisal, the following notable aspects emerge for consideration:

i) The Appellants allege that SSI Village has been regularized by the Chief Minister, Sindh and land granted to it in accordance with the SOC, 2008 issued under section 10(2) COGLA, 1912. Yet, neither SOC, 2008 nor COGLA, 1912 contain any provision for so-called regularization of an entire village.

ii) Taking into account the SUPARCO satellite images (which display that no construction, buildings, amenities are visible in the image upto July 17.7.2011), it cannot be said that the SSI Village existed on or before 31.12.2000, a pre-requisite outlined in Condition No.2(j) of the SOC, 2008, which defines an "Existing Village or Habitation" as a village or habitation existing on state land on or before 31.12.2000.

iii) In addition, Conditions Nos.7 and 8 of SOC, 2008 mandate that upon complete payment of the lease, the grantee must execute a registered conveyance deed, which will serve as the title document. The absence of this deed raises doubts concerning the Appellants' proprietary rights and title.

iv) According to the Enquiry Report dated 21.8.2014 of the Chief Minister's Inspection, Enquiries and Implementation Team, while SSI Village in C.P. No.D-2325/2010 claimed to be listed at Sr. No.147 in the list of Katchi Abadis, however, as per the Sindh Katchi Abadis Authority, SSI Village is not included in the master list of Katchi Abadis nor declared as a Katchi Abadi as yet.

v) Whether any opportunity for a hearing was provided to the individuals likely to be affected, as stipulated by a Division Bench of this Court in its order dated 2.11.2012 (the same order which has been repeatedly referenced and misinterpreted by the Land Utilization Department) prior to approval of the SSI Village and/or grant of land to it?"

vi) Whether a village (specifically, SSI Village) within municipal limits of Karachi could have been sanctioned - a question posed by a Division Bench of this Court in its order dated 22.11.2012 passed in C.P. No.D-446/2012 but which remains unanswered to-date.

vii) Whether the Land Utilization Department, Board of Revenue, Sindh, can arbitrarily approve schemes and/or allocate plots for residential, commercial, industrial, and amenity purposes, among others, in contravention of and/or in the absence of any Layout Plan or Master Plan for the area, thus, resulting in the haphazard and unplanned growth of the urban areas and infrastructure?

viii) Instead of dispensing favors and allocating land to chosen few arbitrarily, whether the Province of Sindh is not legally obligated to conduct public auction for plots in order to secure and ensure their maximum value/price, considering its role as a custodian holding the state land in trust?

1. Injunction, an equitable remedy, aims to support equity and fairness, and not to exacerbate injustice. To be granted this relief, the applicant must demonstrate a prima facie case, along with proving that the balance of convenience favours him and that he would suffer irreparable harm without protection during the lawsuit. The pronouncements of the Supreme Court in Puri Terminal Ltd v. Government of Pakistan (2004 SCMR 1092) and Supreme Court Employees Cooperative Housing Society v. Marshal Construction Management (2022 SCMR 366) reiterate these principles.

2. In light of the issues highlighted above (in the preceding paragraphs 24 and 25), the Appellants have not met the requisite criteria for securing injunctive relief, as delineated by established standards.

HCA No. 5/2022 Impugning Recall of Ad Interim Stay Order

1. By order dated 25.11.2021 passed in Suit 1598, the Single Judge recalled an ad interim order dated 20.11.2018 which had been operating in Suit 1598. The Appellants have challenged the recall order in HCA No.5/2022.

2. As we have already expressed our views regarding the non-grant of injunction in the aforementioned HCAs Nos.128 and 129 of 2022 (detailed in paragraphs 24 to 27 above), the third HCA No.5/2022 is disposed of accordingly.

3. Another related aspect warrants mention. On a previous occasion, a Single Judge (by order dated 23.12.2013) permitted the Defendants of Suit 1598 to proceed with construction. Subsequently, the Appellants contested this decision in HCA No.3/2014 (Shaheed Shah Inayat Village v. Ashiq Hussain Vighio and others). This HCA was disposed of by an order dated 1.4.2015, restraining the Defendants of Suit 1598 from raising any construction on 3-10 acres of land in SSI Village and from interfering with the Appellants' possession "Till the disposal of injunction application". However, given that the Impugned Order (which rejected the plaints of Suit 1598 and Suit 888) effectively disposed of the injunction application, it is made clear that the order dated 1.4.2015 in HCA No.3/2014, therefore, no longer holds field. This is further supported by the reasons outlined above (in paragraphs 25 to 27).

Conclusion

1. Following the foregoing considerations, it is ordered that:

2024 Y L R 2773

[Sindh]

Before Yousuf Ali Sayeed and Arbab Ali Hakro, JJ

Syed Ayaz haider---Appellant

Versus

National Bank of Pakistan and 2 others---Respondents

First Appeal No. 26 of 2024, decided on 8th August, 2024.

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

----O.XXI Rr.89 & 90---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree passed by Banking Court---Auction proceedings---Sale---Setting aside sale on deposit of certain amount---Scope---Order XXI, R. 89 of the Civil Procedure Code, 1908, stipulates and allows any person who either owns the property or holds an interest in it by virtue of a title acquired before the sale to apply to have the sale set aside; this is contingent on such person depositing a certain amount in the Court---First condition for setting aside the sale is that the person must deposit a sum equal to five per cent of the purchase money for payment to the purchaser/successful bidder---Second condition is that the person must deposit an amount for payment to the decree-holder---Such amount is specified in the proclamation of sale for the recovery of which the sale is ordered---However, any amount received by the decree -holder since the date of the proclamation of sale is deducted from such/said amount---There is also a restriction that if a person has applied under O. XXI, R. 90 of the Civil Procedure Code, 1908, to set aside the sale of his immovable property, he cannot make or prosecute an application under this rule unless he withdraws his application under Rule 90; this R. also does not relieve the judgment-debtor from any liability he may have in respect of costs and interest not covered by the proclamation of sale.

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

----O. XXI Rr. 89 & 90-- Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree passed by Banking Court---Auction proceedings---Sale Setting aside of sale on deposit of certain amount---Appellant / Judgment-debtor assailed orders passed by the Banking /Executing Court, whereby application under O. XXI, R. 89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Contention of the appellant was that the auction proceedings were orchestrated without consideration of the actualmarket value or price of the property---Validity---Order XXI, R. 90, C.P.C, provides a legal avenue for the annulment of an auction sale on the grounds of fraud or material irregularity---Conversely, O. XXI, R. 89, C.P.C, offers the judgment-debtor an alternative recourse to circumvent a sale post its valid execution ;this rule endows the judgment debtor with a final opportunity post-auction to have the sale rescinded upon payment of the decretal amount and an additional sum as compensation for the auction purchaser---In light of these provisions, these remedies are mutually exclusive---Once the appellant had embarked on a course of action in accordance with O.XXI R.89, C.P.C, it was not permissible for the appellant to assert that the auction proceedings were conducted without soliciting the actual market of the mortgaged property---Thus, the contention of the appellant was incongruous with the chosen course of action and was, therefore, untenable under the stipulations of O.XXI, R.89 of the Civil Procedure Code, 1908---No case of interference by the appellate /High court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances.

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

----O. XXI Rr. 89 & 90---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree passed by Banking Court---Auction proceedings---Application to set-aside sale---Non-depositing of decretal amount---Effect---Appellant / Judgment-debtor assailed orders passed by the Banking/Executing Court, whereby application under O.XXI, R. 89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Ground taken by the appellant was that he had deposited (5% of the purchased) amount deposited by the purchaser---Validity---Though record (photostat copy of the Pay Order annexed by the appellant) reflected that he had deposited 5% amount, however, there was no explanation regarding the non-deposit of the decretal amount( specified in the proclamation of sale) by the appellant, which, as per the second condition of R.89 (b) of O.XXI C.P.C., he /appellant( being person applying to set-aside sale) should have deposited for payment to the decree-holder---No case of interference by the appellate /High court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances.

Anwar Sultan through L.Rs v. Bank Al-Falah Ltd. and others 2014 SCMR 1222 ref.

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

----O. XXI Rr. 89 & 90---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree passed by Banking Court---Sale---Setting aside of sale on deposit of certain amount---Purchase-amount deposited by the bidder with the stipulated time---Appellant / Judgment-debtor assailed orders passed by the Banking/Executing Court, whereby application under O.XXI, R.89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Objection raised by the appellant was that the purchaser /bidder, despite being explicitly directed by the Executing/Banking Court to deposit the residual 75% of the bid amount within 15 days, had failed to comply with said directive---Validity---Record (diary sheets etc.) showed that the purchaser-bidder was indeed directed to deposit the residual 75% of the bid amount within 15 days ; the purchaser-bidder, in response, deposited the said amount through a Pay Order---By the date mentioned on said Pay Order, if one were to calculate the duration, it unequivocally amounted to 15 days---Thus, it was incontrovertible that the purchaser-bidder had deposited the remaining 75% of the bid amount well within the stipulated time frame---Therefore, the contentions advanced by the appellant were fundamentally flawed and devoid of merit---No case of interference by the Appellate /High court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances .

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

----O.XXI Rr. 89 & 90---Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001), S.19---Execution of decree passed by Banking Court---Auction proceedings---Purchaser-bidder---Vested right---Scope---Appellant/Judgment-debtor assailed orders passed by the Banking/ Executing Court, whereby application under O.XXI, R.89 of the Civil Procedure Code, 1908, filed by the appellant was dismissed and on the same day the sale of mortgaged property was confirmed---Validity---Records revealed that the Executing Court had scheduled thesale of the mortgaged property on seven separate occasions, yet no one stepped forward to participate in the auction---It was only on the eighth attempt that the auction proceedings were successfully conducted---On said occasion, only respondent made an appearance and offered the highest bid---Said bid was accepted by the Court and respondent was consequently declared the successful bidder---Subsequent to said declaration, respondent fulfilled his obligation by depositing the remaining 75% of the bid amount, leading to the confirmation of the sale---As a result of said proceedings, a vested right had been conferred upon the auction-purchaser / respondent---Said right, once established, could not be disturbed or invalidated, thereby solidifying respondent's position as the lawful owner of the property-in-question---No case of interference by the appellate/ High court was made out---Appeal, filed by the judgment-debtor, was dismissed, in circumstances.

Muhammad Saleem Thepdawala for Appellant.

Suleman Huda for Respondent No. 1.

Taimur Ahmed Qureshi for Respondent No. 2.

Ali Raza Litigation Officer NBP.

Date of hearing: 8th August, 2024.

Judgment

Arbab Ali Hakro, J.---Through this 1st Appeal under Section 22 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 (FIO, 2001), the Judgment Debtor (appellant herein) has impugned Orders dated 16.02.2024, passed by learned Banking Court-II, Karachi (Executing Court) in Suit No.89 of 2024 (Execution Appl. No.24. of 2017), whereby application under Order XXI Rule 89 read with Section 151 C.P.C, filed by the appellant was dismissed and on the same day vide separate Order dated 12.02.2024, confirm the sale of mortgaged property.

1. Briefly, the fact is that the respondent-Bank instituted Suit No.89 of 2014 against the appellant under Section 9 of the FIO, 2001, for the recovery of Rs. 14,537,837./-. This was decreed vide an ex-parte judgment dated 08.8.2016 by the Banking Court-II, Karachi, for the recovery of Rs.14,240,404/- in favour of the respondent Bank against the appellant jointly and severally with the cost of funds from the date of default until the realization of the entire decretal amount. The said ex-parte Judgment and Decree were then challenged by the appellant by filling an application under Section 12(2) read with Section 151 of C.P.C which was dismissed by the Banking Court.

2. During the execution proceedings, the mortgaged property bearing Plot No.B-105, measuring 240 Sq. Yds, Block-3 Gulshan-e-Iqbal KDA Scheme No.24, Karachi, was auctioned. The auction took place on 08.01.2024, and respondent No.2 emerged as the highest bidder with an offer of Rs.30,500,000/-, who deposited 25% of the bid amount with the Nazir of the Court. Subsequently, on 19.01.2024, the appellant filed an application under Order XXI Rule 89, read with Section 151 of the C.P.C, to set aside the auction proceedings on the grounds that the auction proceedings were held without calling/ascertaining the actual market value of the mortgaged property. The appellant conveyed his readiness to deposit the balance decretal amount and annexed a copy of the Pay Order dated 18.01.2024 for an amount of Rs.381,250/-, the 5% of the bid amount (i.e., purchase money) for payment to the respondent No.2. The said application of the appellant was dismissed vide the impugned Order dated 16.02.2024. Consequently, on the same day vide separate Order 16.02.2024, the Executing Court confirmed the sale of the mortgaged property. Therefore, the appellant preferred the instant appeal impugning both the above Orders.

3. Mr. Muhammad Saleem Thepdawala, appearing on behalf of the appellant, at the very outset, argued that the learned Executing Court had not considered the fact that the auction purchaser had failed to deposit the remaining 75% amount within 15 days and illegally confirmed the auction. He has argued that the appellant deposited 5% of the purchase amount through a Pay order and annexed the same with the application, but the learned Executing Court has not considered the same and illegally dismissed his application and confirmed the auction. He has also contended that the learned Executing Court has deprived the appellant of his valuable rights in the mortgaged property, so he also deprived more than 200 students of their educational careers. Therefore, application under Order XXI Rule 21 C.P.C. filed by the appellant should be allowed. Lastly, he prayed for setting aside the impugned Order.

4. Conversely, Mr. Suleman Huda and Mr. Taimur Ahmed Qureshi, learned Advocates for respondents Nos.1 and 2, respectively, contended that impugned Orders passed by the learned Executing Court are in accordance with law and require no interference by this Court in the instant appeal. They further contended that respondent No.2 had already deposited the entire amount before the Executing Court, and the sale was confirmed; thus, a vested right was created in favour of respondent No.2.

5. We have heard the learned counsel for the respective parties and have also perused the record and the case law cited at the bar with their assistance. The question is whether the appellant has complied with the conditions envisaged under Order XXI Rule 89, C.P.C. In such circumstances, it would be imperative to replicate the above provision as follows: -

"89. Application to set aside sale on deposit. (1) Where immovable property has been sold in execution of a decree, any person, either owning such property or holding an interest therein by virtue of a title acquired before such sale, may apply to have the sale set aside on his depositing in the Court-

(a) for payment to the purchaser, a sum equal to five per cent of the purchase-money; and

(b) For payment to the decree-holder, the amount specified in the proclamation of sale is for the recovery of which the sale was ordered, less any amount which may, since the date of such proclamation of sale, have been received by the decree holder.

(2) Where a person applied under rule 90 to set aside the sale of his immovable property, he shall not, unless he withdraws his application, be entitled to make or prosecute an application under this rule.

(3) Nothing in this rule shall relieve the Judgment-debtor from any liability he may be under in respect of costs and interest not covered by the proclamation of sale."

1. The above provision stipulates and allows any person who either owns the property or holds an interest in it by virtue of a title acquired before the sale to apply to have the sale set aside. This is contingent on them depositing a certain amount in the Court. The first condition for setting aside the sale is that the person must deposit a sum equal to five per cent of the purchase money for payment to the purchaser/successful bidder. The second condition is that the person must deposit an amount for payment to the decree-holder. This amount is specified in the proclamation of sale for the recovery of which the sale was ordered. However, any amount received by the decree holder since the date of the proclamation of sale is deducted from this amount. There is also a restriction that if a person has applied under Rule 90 to set aside the sale of his immoveable property, he cannot make or prosecute an application under this rule unless he withdraws his application under Rule 90. This Rule also does not relieve the Judgment-debtor (the person against whom the decree has been passed) from any liability he may have in respect of costs and interest not covered by the proclamation of sale.

2. Upon meticulous examination of the application under Order XXI Rule 89 of the Code of Civil Procedure (C.P.C), submitted by the appellant to the Banking Court, it is discernible that the appellant's primary contention is that the auction proceedings were orchestrated without consideration of the actual market value or price of the property. However, such a contention is circumscribed under Order XXI Rule 89, C.P.C. Order XXI Rule 90, C.P.C provides a legal avenue for the annulment of an auction sale on the grounds of fraud or material irregularity. Conversely, Order XXI Rule 89, C.P.C offers the judgment-debtor an alternative recourse to circumvent a sale post its valid execution. This rule endows the judgment debtor with a final opportunity post-auction to have the sale rescinded upon payment of the decretal amount and an additional sum as compensation for the auction purchaser. In light of these provisions, these remedies are mutually exclusive. Once the appellant has embarked on a course of action in accordance with Order XXI Rule 89, C.P.C, it is not permissible for the appellant to assert that the auction proceedings were conducted without soliciting the actual market value of the mortgaged property. This assertion is incongruous with the chosen course of action and is therefore untenable under the stipulations of Order XXI Rule 89, C.P.C.

2024 Y L R 2783

[Sindh]

Before Mohammad Karim Khan Agha and Zulfiqar Ali Sangi, JJ

Nek Rehman alias Zeeshan---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. 703 of 2021, decided on 17th November, 2022.

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

----S. 9 (c)---Possession of narcotic substance---Appreciation of evidence---Prosecution case was that 22-kilograms charas was recovered from the vehicle of the accused---Record showed that the FIR was registered with promptitude giving no time for concoction---Section 161, Cr.P.C statements were recorded promptly which were not significantly improved upon by any witness at the time of giving evidence---Complainant and the Investigating Officer were also separate Police Officers so there was no conflict of interest---Arrest and recovery was made on the spot and the accused was caught red-handed with the narcotic substance by the police whose evidence fully corroborated each other in all material respects as well as the prosecution case---No enmity had been suggested against any of the police witnesses and as such the police had no reason to implicate the accused in a false case---Accused was the driver of the vehicle which was stopped and the narcotic substance was recovered from his person in the rear of the car which was secured and sealed on the spot---Sufficient evidence had been brought on record by the prosecution to show that the vehicle which the accused was driving at the time of his arrest and recovery was a rental vehicle which was linked to the accused---No major contradictions were found in the evidence of the witnesses and exhibits---Most of the relevant police entries had been exhibited including those relating to departure and safe custody of the narcotic---Chemical report proved to be positive and all relevant protocols were followed---It was extremely difficult for such a large amount of narcotic to be foisted on the accused which was not readily available with the police whist on patrol---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was accordingly dismissed.

Mureed Majeedano v. The State 2022 PCr.LJ 961; Qaiser Khan v. The State through Advocate-General Khyber Pakhunkhwa, Peshawar 2021 SCMR 363; Noman Khan v. The State 2020 MLD 1113; Rashid Zaman v. Afzal Awan, SHO Police Station Takht-e-Nasrati, District Karak and another 2022 MLD 1227; Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkbwa 2019 SCMR 2004; Aijaz Ali Rajpar v. The State 2021 SCMR 1773; Shafa Ullah Khan v. The State and another 2021 SCMR 2005; Zafar v. The State 2008; SCMR 1254 and Kashif Amir v. The State PLD 2010 SC 1052 ref.

Mushtaq Ahmad v. The State 2020 SCMR 474 and The State v. Abdali Shah 2009 SCMR 291 rel.

(b) Criminal trial---

----Police witnesses---Scope---Evidence of police witnesses is as reliable as any other witness provided that no enmity exists between them and the accused.

(c) Criminal trial---

----Minor contradictions---Scope---Minor contradictions which do not affect the materiality of the evidence can be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----S. 9 (c)---Possession of narcotic substance---Appreciation of evidence---Safe custody of recovered narcotic substance proved---Prosecution case was that 22-kilograms charas was recovered from the vehicle of the accused---Narcotic substance was sealed at the time of recovery and kept in the malkhana for which the person who recovered the narcotic substance was examined, the person who deposited the narcotic substance in the malkhana had been examined, the head moharrir in whose custody the narcotic was placed had also been examined, and the person who took the narcotic to the Chemical Examiner one day later had also been examined and all the relevant malkhana entries had been exhibited---Thus safe custody of the narcotic had been proven---No delay was found in sending the narcotic substance for chemical examination as they were sent the next day---Even no suggestion of tampering with the narcotic substance was made by the accused during cross- examination---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was accordingly dismissed.

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

----Ss. 9(c) & 29---Possession of narcotic substance---Appreciation of evidence---Conscious knowledge of presume of narcotic in the vehicle---Prosecution case was that 22-kilograms charas was recovered from the vehicle of the accused---Being the driver of the car which was associated with the accused actual knowledge of the narcotic substance could be established especially as he had 4-kilograms around his waist at the time of his arrest---Furthermore, under S.29 Control of Narcotic Substances Act, 1997, once the recovery had been proven as in this case the onus shifted to the accused to show his innocence in that at least he had no knowledge of the narcotic substance---Accused who was the driver of the vehicle had not been able to do so in this case as the evidence showed that the narcotic substance was recovered from him on the spot whilst driving the car and as such he was caught red handed and arrested on the spot along with the narcotic substance which was recovered from him and was also recovered from the rear seat of the car which he was driving and connected with---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was accordingly dismissed.

Nadir Khan v. The State 1998 SCMR 1899 and Mehboob-ur-Rehman v. The State 2010 MLD 481 rel.

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

----S. 9(c)---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Non-association of private witnesses---Inconsequential---Prosecution case was that 22-kilograms charas was recovered from the vehicle of the accused---Although no independent mashir was associated with the arrest and recovery of the accused, however that was not surprising because the arrest and recovery was made in the early hours of the morning when people were not likely to be about and according to a witness no one was prepared to act as an independent mashir---Even otherwise S. 103 Cr.P.C was excluded from the offences falling under the Control of Narcotic Substances Act, 1997, by virtue of S.25 of said Act---Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused---Appeal against conviction was accordingly dismissed.

Ghulam Qadir v. The State PLD 2006 SC 61 rel.

Imtiaz Ali Channa for Appellant.

Abrar Ali Khichi, Additional Prosecutor General Sindh for Respondent.

Date of hearing: 14th November, 2022.

Judgment

Mohammad Karim Khan Agha, J.---The appellant Nek Rehman alias Zeeshan son of Abdul Rehman has preferred this jail appeal against the judgment dated 20.10.2021 passed by the Special Court-II (C.N.S.) Karachi in Special Case No.1541 of 2017 arising out of Crime No.117 of 2017 under section 6/9(c) read with sections 14/15 of the CNS Act, 1997 registered at P.S. Sahil, Karachi whereby the appellant Sher Zaman son of. Meer Zaman was convicted under section 265-H(2) Cr.P.C. for the offence under section 6/9 C read with sections 14/15 of the CNS Act, 1997 and sentenced to Life Imprisonment and fine of Rs.500,000/ -. In the event of a failure to pay the fine he was ordered to undergo 05 years more imprisonment. The benefit of section 382-B Cr.P.C. was also extended to the appellant.

1. The facts of the prosecution case are that on 26.11.2017 at about 1830 hours at Khayaban-e-Shujat, Phase-VIII, DHA Karachi complainant SIP Agha Sarfraz of PS Sahil, Karachi along with other police officials arrested accused namely (i) Naik Rehman alias Zeeshan from a car bearing registration No. AXU-881 and recovered four packets of Charas weighing 04 Kgs from his possession and from search of the said car from the rear seat a bag of black color and a polythene bag were recovered. From a search of the black bag it was containing 14 packets of Charas weighing 14 Kgs. whereas from ploythene bag four packets of Charas weighing 4 Kgs were recovered making a total of 22 Kgs. Charas recovered, whereas accused (ii) Muhammad Arif along with co-accused Rozi Khan managed to escape from the car and fled away. After observing required formalities at the spot the arrested accused brought at PS along with recovered contraband and car, thereafter FIR was lodged.

2. After completion of investigation I.O. submitted charge sheet against the arrested accused Nek Rehman and co-accused Muhammad Arif to which they plead not guilty and claimed trial.

3. The prosecution in order to prove its case examined 07 witnesses and exhibited various documents and other items. The appellant in his Section 342, Cr.P.C. statement claimed false implication by the police. He, however, did not give evidence on oath or call any DW in support of his defence case.

4. After hearing the parties and appreciating the evidence on record the trial court convicted the appellant and sentenced him as mentioned earlier in this judgment, hence, the appellant has filed this appeal against his conviction. His co-accused however Muhammed Arif was acquitted of the charge.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment dated 20.10.2021 passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant has contended that he is innocent and has been falsely implicated in this case by the police in order to show their efficiency; that there are material contradictions in the prosecution evidence which renders the prosecution evidence unreliable; that the narcotic was foisted on him; that his role was the same as his acquitted co-accused and as such he was entitled to the same treatment; that the prosecution had failed to prove safe custody of the narcotic and for any or all of the above reasons the appellant should be acquitted by extending him the benefit of the doubt. In support of his contentions he has placed reliance on the cases of Mureed Majeedano v. The State (2022 PCr.LJ 961), Qaiser Khan v. The State through Advocate-General Khyber Pakhunkhwa, Peshawar (2021 SCMR 363), Noman Khan v. The State (2020 MLD 1113), Rashid Zaman v. Afzal Awan, SHO Police Station Takht-e-Nasrati, District Karak and another (2022 MLD 1227) and Zahir Shah alias Shat v. The State through Advocate-General, Khyber Pakhtunkbwa (2019 SCMR 2004).

7. On the other hand learned APG for the State has fully supported the impugned judgment and in particular has stressed that the appellant was caught red handed in a car with the narcotics which were recovered from his person and from the car; that there are no material contradictions in the prosecution case and that safe custody of the narcotics has been proven and as such the prosecution had proved its case beyond a reasonable doubt against the appellant and the appeal should be dismissed. He has placed reliance on the cases of Aijaz Ali Rajpar v. The State (2021 SCMR 1773), Shafa Ullah Khan v. The State and another (2021 SCMR 2005), Zafar v. The State (2008) SCMR 1254) and Kashif Amir v. The State (PLD 2010 SC 1052).

8. We have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the learned counsel for the appellant, the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9. After our reassessment of the evidence we find that the prosecution has proved its case beyond a reasonable doubt against the appellant for the following reasons:-

(a) The FIR was registered with promptitude giving no time for concoction and the section 161 statements were recorded promptly which were not significantly improved upon by any PW at the time of giving evidence. The complainant and the IO were also separate police officers so there was no conflict of interest.

(b) That the arrest and recovery was made on the spot and the appellant was caught red handed with the narcotics by the police whose evidence fully corroborates each other in all material respects as well as the prosecution case. It is well settled by now that the evidence of a police witness is as reliable as any other witness provided that no enmity exists between them and the accused and in this case no enmity has been suggested against any of the police PWs and as such the police had no reason to implicate the appellant in a false case. Thus we believe the police evidence which is corroborative in all material respects. Reliance in this respect is placed on the case of Mushtaq Ahmad v. The State (2020 SCMR 474) where it was held by the Supreme Court in material part as under at para 3;

"Prosecution case is hinged upon the statements of Aamir Masood, TSI (PW-2) and Abid Hussain, 336-C (PW-3); being officials of the Republic, they do not seem to have an axe to grind against the petitioner, intercepted at a public place during routine search. Contraband, considerable in quantity, cannot be possibly foisted to fabricate a fake charge, that too, without any apparent reason; while furnishing evidence, both the witnesses remained throughout consistent and confidence inspiring and as such can be relied upon without a demur."

(c) That the accused was the driver of the vehicle which was stopped and the narcotic was recovered from his person and in the rear of the car which was secured and sealed on the spot. The other passengers in the car made there escape good under cover of darkness and as such were not arrested on the spot. When the co-accused was arrested his identification could not be safely established and as such the appellant's case is on a different footing to his acquitted co-accused.

(d) Sufficient evidence has been brought on record by the prosecution to show that the vehicle which the accused was driving at the time of his arrest and recovery was a rental vehicle which was linked to the appellant.

(e) That there are no major contradictions in the evidence of the PWs and exhibits and it is well settled by now that minor contradictions which do not affect the materiality of the evidence can be ignored. In this respect reliance is placed on Zakir Khan v. State (1995 SCMR 1793).

(f) That most of the relevant police entries have been exhibited including those relating to departure and safe custody of the narcotic.

(g) The narcotics were sealed at the time of recovery and kept in the malkhana for which the person who recovered the narcotic was examined, the person who deposited the narcotics in the malkhana has been examined, the head mohrar in whose custody the narcotics were placed has also been examined and the person who took the narcotic to the chemical examiner one day later has been examined and all the relevant malkhana entries have been exhibited and thus safe custody of the narcotic has been proven. There as no delay in sending the narcotics for chemical examination as they were sent the next day. Even no suggestion of tampering with the narcotics was made by the appellant during cross-examination.

(h) The chemical report proved to be positive and all relevant protocols were followed.

(i) That is extremely difficult for such a large amount of narcotics to be foisted on the appellant which is not readily available with the police whist on patrol. In this respect reliance is placed on the cases of Mushtaq Ahmad's case (Supra) and The State v. Abdali Shah (2009 SCMR 291).

(j) Being the driver of the car which was associated with the appellant actual knowledge of the narcotics can be found especially as he had 4kg's around his waist at the time of his arrest whilst being the driver of the car with two bags of the narcotics being recovered from the back seat of the car which according to him belonged to his co-accused. In this respect reliance is placed on the case of Nadir Khan v. State (1998 SCMR 1899) where it was held as under, "We have gone through the evidence on record and find that the petitioners had the charge of vehicle for a long journey starting from Peshawar and terminating at Karachi. They had the driving licences also. As being person incharge of the vehicle for such a long journey, they must be saddled with the necessary knowledge with regard to the vehicle and its contents. The probabilities or the presumptions are all dependents on the circumstances of each case and in the present case the circumstances fully establish their knowledge and awareness of the contents and their explanation showing the ignorance actually strengthens that conclusion rather than weakening it". (bold added)

(k) Furthermore, under Section 29 CNSA 1997 once the recovery has been proven as in this case the onus shifts to the accused to show his innocence in that at least he had no knowledge of the narcotics. The appellant who was the driver of the vehicle has not been able to do so in this case as the evidence shows that the narcotics were recovered from him on the spot whilst driving the car and as such he was caught red handed and arrested on the spot along with the narcotics which were recovered from him and were also recovered form the rear seat of the car which he was driving and connected with. In this respect reliance is placed on the case of Mehboob-Ur-Rehman v. The State (2010 MLD 481) where it was held as under in this respect at P485 Para 14

"Under the provisions of section 29 of the C.N.S. Act once the recovery of contrabands was made from a private car which was by then in control of the two appellants, the burden to explain the possession whether actual or constructive was on the appellants to discharge but neither they have led any evidence in defence nor have appeared in disproof of the prosecution evidence under section 340(2), Cr.P.C. thus the charge laid upon them has remained unrebutted".

(l) That although no independent mashir was associated with the arrest and recovery of the appellant this is not surprising because the arrest and recovery was made in the early hours of the morning when people were not likely to be about and according to a PW 1 no one was prepared to act as an independent mashir. Even otherwise section 103 Cr.P.C is excluded for offenses falling under the Control of Narcotic Substances Act, 1997 by virtue of Section 25 of that Act. In this respect reliance is placed on the case of Muhammad Hanif v. The State (2003 SCMR 1237).

(m) That in dealing with narcotics cases the courts are supposed to adopt a dynamic approach and not acquit the accused on technicalities. In this respect reliance is placed on the case Ghualm Qadir v. The State (PLD 2006 SC 61) which held as under at para 8 P.66.

2024 Y L R 2795

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Soomro, J

Tariq Hussain---Petitioner

Versus

Ghulam Abbas Sangi and others---Respondents

Constitution Petition No. S-69 of 2024, decided on 9th April, 2024.

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

----Ss.15, 15(2)(vii) & 15(2)(2)---Constitution of Pakistan, Arts.10-A & 23---Eviction order---Willful default in payment of rent and utility bills---Bona fide personal need---Failure of the tenant to discharge burden of proof as to default--Pendency of suit for specific performance qua property in dispute---Relationship of landlord and tenant, denial of---Eviction application was allowed after closure of right of the respondent to cross-examine the witnesses of the petitioner after affording repeated opportunities---Appellate Court remanded the case---Contention of the respondent was that he was proceeded against ex parte, thus, his right to fair trial had been infringed---Validity---Held, that no right to fair trial was infringed, as the respondent himself could not avail opportunities for cross-examination of respondent's side despite repeated chances, thus, the Rent Controller rightly closed that right---Under S.15(2)(2) of the Sindh Rented Premises Ordinance, 1979, (Ordinance) it is a statutory duty imposed upon every tenant to remit rent to the landlord and non-compliance thereof renders the tenant liable to eviction from the tenement---Primary duty of the landlord is to assert the tenant's default and pinpoint the said default, thereby fulfilling the initial burden, which the petitioner being landlord discharged by producing evidence, thereupon, the burden shifted upon the respondent to demonstrate that he did not default in meeting its obligation to remit rent to landlord, however, petitioner's evidence went unrebutted and respondent had failed to discharge his burden of proof---Sale agreement was neither produced before the Appellate Court nor before High Court, however, if respondent established his case and obtained a decree of specific performance, he could take possession back from the petitioner and mere pendency of a civil suit in Court did not, at first glance, undermine an established title for the purpose of rent cases under the Ordinance---Authenticity of the alleged agreement and its resulting impact would be impartially assessed by the Civil Court and until the tenant had not proved his claim for "specific performance" based on an alleged sale agreement, the landlord would still be considered the owner or landlord of the property and during that time, the relationship between the parties would be governed by the terms of the tenancy agreement, therefore, the tenant could not validly oppose the eviction proceedings against him on the grounds of the sale agreement---When the evidence presented by the landlord supported the claim made in the ejectment application, and his evidence was clear, logical, and remained unchallenged, there was no need for any additional evidence to dispute his statement, making it sufficient for the approval of the ejectment application---Landlord must show a genuine and reasonable personal need for the rental premises and in the instant case the petitioner had successfully fulfilled his obligation by demonstrating the reasonableness, authenticity and genuine nature of his personal needs and the respondent was unable to weaken or challenge his claim---Landlords have the clear right to acquire, manage and keep ownership of their property in a way that benefits them the most and a tenant does not have the authority to deprive the landlords of their valuable right to own, control, and possess their property, which is further protected by Art. 23 of the Constitution---Constitutional petition was allowed and eviction order of respondent passed by the Rent Controller was maintained accordingly.

Muhammad Riaz Shaikh v. Iftikharuddin 2014 CLC 1695; Mumtaz Sultana v. Ishrat Jehan 1989 CLC 639; Allahdino v. Habib PLD 1982 SC 465; Mst. Seema Begum v. Muhammad Ishaq and others PLD 2009 SC 45 and Mustafa Haji v. Umbichi 2004 (2) KLT 1110 rel.

Irfan Ahmed Qureshi for the Petitioner.

Tahir Nisar Rajput for Respondent No. 1.

Date of hearing: 9th April, 2024.

Judgment

Khadim Hussain Soomro, J.---Through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, the petitioner has impugned the judgment dated 29.01.2024, passed by learned Additional District Judge-VI, Hyderabad, in First Rent Appeal No. 43/2023, whereby the appeal filed by respondent No. 1 has been allowed, and the judgment dated 05.09.2023 passed by learned Rent Controller-VIII Hyderabad has been set-aside while remanding back the matter to learned trial court for decision afresh.

1. Brief facts of the case are that the petitioner filed an application under Section 15 of Sindh Rented Premises Ordinance 1979 ("SRPO"), whereby he sought ejectment of respondent No.1 from the house, i.e. Bungalow No.B/115 Gulistan-e-Sajjad Hyderabad on the ground of default in payment of rent and personal bona fide need. After the admission of application, the notice was issued to respondent No. 1 through Bailiff, registered A.D., and courier and lastly, notice was published in the daily "Ibbrat" Newspaper, Hyderabad and lieu of both ordinary as well as substitute modes of service against respondent No. 1, the service was held good against him and due to his non-appearance, he was debarred from filing written statement/objections vide order dated 17.03.2023. After an order of debar, respondent No. 1, through his Counsel, made an appearance and filed an application for recalling an order dated 17.03.2023, but the same was dismissed. The petitioner led his evidence and filed an affidavit in ex-parte proof. During his examination in chief, he produced relevant documents. In support of his claim, the petitioner also examined one witness, Salma Hussain, at Ex. 26. After hearing the Counsel for the petitioner, the learned trial court allowed the application and directed respondent No. 1 to vacate the premises, i.e., Bungalow within 90 days. Respondent, being aggrieved and dissatisfied, filed First Rent Appeal No.43/2023, which through the impugned judgment has been allowed, and the matter has been remanded to the learned trial court, hence, this petition.

2. Learned Counsel for the petitioner has argued that the judgment passed by the learned appellate Court is not on the sound principles as laid down in the Sindh Rented Premises Ordinance, 1979; that the petitioner filed ejectment application on the ground of default as well as personal bona fide use; that both the grounds are specifically pleaded in paragraphs Nos.10 and 11 of the memo. of application; that apart from default the respondent No.1 did not deposit the electricity as well as gas bills; that against respondent No.1 left outstanding Rs. 350,666/- of electricity, and Rs.40,460/- of sui gas; that respondent No. 1 committed default and did not deposit the rent of nine months; that the judgment of appellate Court is outcome of misreading, non-reading of evidence and misapplication of law, hence, the impugned judgment is liable to be set aside.

3. Learned Counsel for respondent No. 1 has argued that the lower appellate Court commits no illegality or irregularity; that the petitioner has not come before this Court with clean hands; that there is no direction of Rent Controller for deposit of rent as per Section 16 of the Sindh Rent Premises Ordinance, 1979; that the petitioner has denied the relationship of landlord and tenant and he has filed Suit No. 343/2024 for specific performance and permanent injunction; that the petitioner is not the owner of rented premises; that the judgment of the learned trial court is ex-parte and respondent No. 1 was not provided opportunity of being heard; that right of fair trial was severely infringed, therefore, the appellate Court has rightly passed the impugned judgment which is based on correct appreciation of law.

4. I have heard the learned Counsel for the parties and perused the material available on record.

5. The perusal of the record shows that after admission to the subject application, the notices/summons were issued against respondent No. 1 through a bailiff, registered A.D., and courier service. Besides, the summons were pasted at the address of respondent No. 1 through Bailiff in the presence of two witnesses. Thereafter, the learned Counsel for the petitioner submitted an application for issuance of notice through publication. The same was allowed (Exh.16). While adopting the alternative modes of service, the notice was published in the daily "IBBRAT NEWSPAPER", Hyderabad, dated 01.03.2023 (Exh. 19). In lieu of adopting both ordinary as well as substitute modes, the service against the respondent No. 1 was held good on 02.03.20223. Therefore, respondent No.1 was debarred from filing written statements/objections on 17.03.2023 (Exh. 20), and the case was ordered to have proceeded ex-Parte against him. Consequently, the petitioner was directed to file an Affidavit in Ex-parte Proof. Consequent to notice through publication, Mr. Zahid Mallah advocate filed vakalatnama on behalf of respondent No.1 (Exh. 21) and an application for recalling the order dated 17.03.2023 at (Exh. 22). Since respondent No.1 was already debarred from filing written statement/objections on the rent application and the trial Court dismissed his application vide order dated 04.07.2023, against which respondent No.1 did not file an appeal; hence, the order attained finality. Therefore, the case proceeded ex-parte; however, the learned trial provided an opportunity for respondent No.1 to conduct a cross-examination of the petitioner, but he did not avail the chance, and the evidence of the petitioner went unrebutted. In light of the above facts and circumstances, I hold that no right to a fair trial was infringed, but the respondent could not avail himself of opportunities for cross-examinations despite repeated chances. Therefore, the learned rent controller rightly closed the respondent side of the cross-examination.

6. Another crucial facet of the case is that the petitioners filed an ejectment application on two grounds: one, the respondent committed willful default in the payment of rent, and second, the rented premises are required to the petitioners for their personal bona fide use. The petitioner has specifically pleaded these grounds in the pleadings in paragraphs No.10 and 11 of the memo. of application that apart from the default of nine months in the payment of rent, respondent No.1 did not deposit the electricity as well as gas bills, of Rs.350,666/- of electricity, and Rs.40,460/- of sui gas; which is left outstanding by him. Further, until today, the outstanding rent has not been deposited before the rent controller or this Court. As per Sub-clause (2) of subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979, it is a statutory duty imposed upon every \ tenant to remit rent to the landlord. Non-compliance with this obligation renders the tenant liable to eviction from the tenement, as prescribed under clause (2) of subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. In instances where a stipulated time period is defined in the agreement, it becomes a statutory obligation for the tenant to remit rent to the landlord initially on the agreed-upon date mutually determined between both parties. Failure to tender such rent within 15 days from the due date constitutes a default by the tenant in fulfilling the obligation to pay rent, rendering the tenant liable to eviction from the tenement. In the absence of a mutually agreed-upon date for rent payment, the tenant is obligated to remit the rent to the landlord within 60 days from the inception of the obligation to pay rent, but in the instant case, the respondent committed a default of nine months rent. Failure to adhere to this timeframe categorizes the tenant as having defaulted on the obligation to pay rent, consequently making the tenant susceptible to eviction from the tenement.

7. This Court has held in various judgments that the primary duty of the landlord is to assert the tenant's default and pinpoint the said default, thereby fulfilling the initial burden. The petitioners discharged their burden of proof by producing evidence, which shifted the burden upon the respondents to demonstrate that the tenant did not default in meeting its obligation to remit rent to them. However, on the one hand, the petitioner's evidence went un-rebutted; on the other hand, the respondent has failed to discharge its burden of proof. The reliance can be placed in the case of Muhammad Riaz Shaikh v. Iftikharduddin (2014 CLC 1695). Any rent paid after that due date must be constituted as default. The reliance can be placed in the case of Mumtaz Sultana v. Ishrat Jehan (1989 CLC 639). The issue at hand relates to the allocation of the burden of proving that the tenant defaulted on rent payment, thereby justifying the landlord's entitlement to evict the tenant under Clause 1(2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. The apex has decisively addressed this question in the case of Allandino v. Habib (PLD 1982 SC 465). The relevant portion of the judgment is reproduced as follows:-

"It is no doubt correct to say that the initial burden of proof lies upon the landlord to establish that the tenant has not paid or tendered rent due by him as required by section 13 (2) (i) of the Sindh Urban Rent Restriction Ordinance, 1959, but it must be appreciated that non-payment of rent is a negative fact, therefore, if the landlord appears in Court and states on oath that he has not received the rent for a certain period, it would be sufficient to discharge the burden that lies under the law upon him and the onus will then shift to the tenant to prove affirmatively that he had paid or tendered the rent for the period in question".

1. Reverting to the new plea taken by respondent No.1 before this Court that he purchased the rented premises from the wife of the petitioner through a sale agreement as she did not execute the registered sale deed; therefore, he filed a F.C. Suit No.43/2024. After carefully examining the judgments of both lower courts, it appears that this particular argument was not raised. Moreover, the sale agreement was neither produced before the appellate Court nor before this Court. It is a settled principle of law that in case respondent No.1 establishes his case and obtains a decree of specific performance, he can take possession back from the petitioner. In the case of Mst. Seema Begum v. Muhammad Ishaq and others (PLD 2009 SC 45), the apex court has observed that mere pendency of a civil suit in Court does not, at first glance, undermine an established title for the purpose of rent cases under the Rent Restriction Ordinance. The authenticity of the alleged agreement and its resulting impact will be impartially assessed by the civil Court. It is a well-established legal principle that as long as the tenant has not proven their claim for "specific performance" based on an alleged sale agreement, the landlord will still be considered the owner or landlord of the property. During this time, the relationship between the parties will be governed by the terms of the tenancy agreement. Therefore, the tenant cannot validly oppose the eviction proceedings against him on the grounds of the sale agreement. The relevant portion of the judgment is reproduced as under:-

2024 Y L R 2804

[Sindh]

Before Zafar Ahmed Rajput, J

Muhammad Sohail Haroon---Appellant

Versus

Shoukat Ali and 2 others---Respondents

Criminal Acquittal Appeal No. 503 of 2022, decided on 21st June, 2023.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2)---Dishonestly issuing cheque---Appreciation of evidence---Appeal against acquittal---Accused-respondent issued seven cheques against an outstanding amount of purchase of thread, which were dishonoured when presented before the bank---Complainant had claimed that he sold out Metallic Yarn to the respondent No. 1/accused worth of Rs.21,73,000/-and against that the latter issued him seven cheques, which were dishonored on presentation---However, the complainant failed to produce on record any evidence to establish that he had in fact supplied Metallic Yarn to the respondent No.1/accused to justify issuance of the alleged cheques towards fulfillment of an obligation under the sale transaction---Complainant admitted in his cross-examination that he had not produced any proof regarding supply of said products to the respondent No.1 accused---Besides, the Investigating Officer had also admitted in his deposition that the complainant did not hand over to him any document to show business transaction between him and the respondent No. 1/accused---Criminal acquittal appeal, stood dismissed, accordingly.

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

----S. 489-F---Criminal Procedure Code (V of 1898), S. 417(2)---Dishonestly issuing cheque---Appreciation of evidence---Appeal against acquittal---Defence plea---Accused-respondent issued seven cheques against an outstanding amount of purchase of thread, which were dishonoured when presented before the bank---It was the plea of the respondent No.1/accused, as recorded in his statement on oath under S.342, Cr.P.C., that he had business terms with the appellant/complainant and he used to obtain Metallic Thread from him on credit basis and he had issued cheques in advance upon the condition that whenever the appellant/complainant would supply material to him, the said cheques would be encashed; that however, the appellant/complainant instead of supplying the requisite material to him, fraudulently presented the cheques referred to in FIR for encashment and then he lodged the FIR against him---Heavy burden laid upon the appellant/complainant to prove that the subject cheques were issued by the respondent/accused against the alleged supply of Metallic Yarn to respondent/accused for fulfillment of an obligation, which he could have proved easily by producing requisite record of his supply, but he failed to do so---Hence, the Trial Court rightly recorded acquittal of the respondents/accused by extending them benefit of doubt---Material on record approved the assessment of the trial Court---Prosecution had failed to bring home guilt of respondents/accused beyond reasonable doubt---Criminal acquittal appeal, therefore, stood dismissed, accordingly.

(c) Criminal trial---

----Benefit of doubt---Principle---For basing conviction against an accused there should be strong evidence before the Trial Court and if any doubt, even slightest, arises in a prudent mind as to the guilt of the accused, benefit of the same has to be extended in favour of the accused.

(d) Appeal against acquittal---

----Presumption of double innocence---Scope---Appeal against an acquittal being an extraordinary remedy is different from an appeal against the judgment of conviction and sentence because presumption of double innocence of the accused is attached to the order of acquittal---Thus, to reverse an order of acquittal, it must be shown that the acquittal order is unreasonable, perverse and manifestly wrong.

Muhammad Shafi v. Muhammad Raza and another 2008 SCMR 329 rel.

Muhammad Arif Sheikh for Appellant.

Nemo for Respondents Nos. 1 and 2.

Siraj Ali Khan Chandio, Addl. Prosecutor General Sindh for the State.

Date of hearing: 21st June, 2023.

Order

Zafar Ahmed Rajput, J.---This Criminal Acquittal Appeal is directed against the judgment dated 20.7.2022, whereby the learned Judicial Magistrate-XIVTH (MTMC), Karachi (West) acquitted the respondents Nos.1 and 2 of the charge in Case No.338 of 2021, arising out of FIR No.425 of 2021, registered under Section 489-F/34, P.P.C., at Police Station SITE-A, Karachi.

1. Facts necessary for the disposal of the instant acquittal appeal are that in the month of November, 2020 the appellant/complainant sold out thread to the respondent No.1/accused Shoukat Ali and against that an amount of Rs.21,73,000/- was outstanding against him, for that he issued six cheques of his bank account to the appellant bearing Nos. (1) A-38315366 (2) A-38315367 (3) A-38315372 (4) A-38315373 (5) A-38315377 (6) A-38315378 and one cheque of his son, the respondent No.2's bank account bearing No. A-33641071; however, on 23.02.2021, the same were dishonored on presentation; hence, the aforesaid FIR was lodged by the appellant. After completing usual investigation, Police submitted charge sheet against the respondents/accused, who joined the trial after obtaining pre-arrest bail. The Trial Court supplied the copies of necessary police papers as required under section 241-A, Cr.P.C. to the said respondents vide receipt at Ex.01. Formal charge was framed against them for the offence under section 489-F, P.P.C. at Ex.02, to which they pleaded not guilty and claimed for trial, vide their pleas at Ex.02/A and Ex.02/B. At the trial, the prosecution in order to substantiate the case against the said respondents examined PW-1 Muhammad Sohail Haroon (complainant) at Ex.03, who produced application at Ex.03/A, statement at Ex.03/B, FIR at Ex.03/C, memo. of site inspection Ex.03/D, memo. of seizure at Ex.03/E and original 07 cheques at Ex.03/F to Ex.03./L; PW-2 S.M. Faraz Akhter (Operation Manager, Habib Metro Bank) at Ex.04, who produced letter of ICI at Ex.04/A and bank report at Ex.04/B; PW-3 SI Asif Zia at Ex.05, who produced statement at Ex.05/A, letter at Ex.05/B, letter of SHO at Ex.05/C, order of S.S.P. at Ex.05/D and entry at Ex.05/E; PW-4 Eban Tariq at Ex.06; PW-5 Aasim Maqbool Khan (Operation Manager, Meezan Bank) at Ex.07, who produced letter of I.O. at Ex.07/A and bank report at Ex.07/B and PW-6 A.S.I. Aamir Ghayas (I.O.) at Ex.8, who produced roznamcha entry No.28 at Ex.08/A. After closing the prosecution side for evidence, the Trial Court recorded the statements of the respondents/accused under section 342, Cr.P.C. at Ex.10 and Ex.11, wherein the respondents denied the allegations levelled against them by the prosecution and claimed to be innocent. Respondent No.1 (Shoukat Ali) examined himself on oath at Ex.12. Afterward, the Trial Court having been heard the learned counsel for the parties as well as A.D.P.G, acquitted the respondents/ accused of the charge by extending them benefit of doubt vide impugned judgment.

2. Learned counsel for the appellant contends that the impugned judgment being against the facts and evidence is not sustainable in law; hence, it is liable to be set-aside; that the Trial Court has passed the impugned judgment without taking into consideration the documentary evidence produced by the P.Ws.; that the impugned judgment suffers from misreading and non-reading of the evidence on record and the sufficient material is available to connect the respondents/ accused with the commission of the alleged offence, hence this Criminal Acquittal Appeal is liable to be allowed.

3. Conversely, learned Addl. Prosecutor General fully supports the findings and conclusion of the Trial Court recorded in the impugned judgment.

4. Heard. Record perused.

5. It may be observed that for constituting an offence under section 489-F, P.P.C., the initial burden lies upon the prosecution to establish that the alleged cheque(s) was issued dishonestly by the accused towards repayment of a loan or fulfillment of an obligation. In the instant case, it is claim of the appellant that he sold out Metallic Yarn to the respondent No.1 worth of Rs.21,73,000/-and against that the later issued him seven cheques, which were dishonored on presentation. However, the appellant failed to produce on record any evidence to establish that he had in fact supplied Metallic Yarn worth of said amount to the respondent No.1 to justify issuance of the alleged cheques towards fulfilment of an obligation under the sale transaction. It has been admitted by the appellant in his cross-examination that he has not produced any proof regarding supply of said products to the respondent No.l. Besides, the I.O. A.S.I. Amir Ghayas (PW-6 at Exh.8) has also admitted in his deposition that :the appellant did not hand over him any document to show business transaction between him and the respondent No.1.

6. Contrary to the claim of the appellant regarding supply of Metallic Yarn, it is the plea of the respondent No.1, as recorded in his statement on oath under section 342, Cr.P.C., that he had business terms with the appellant and he used to obtain Metallic Thread from him on credit basis and he had issued cheques in advance upon the condition that whenever the appellant will supply material to him, the said cheques would be encashed; however, the appellant instead of supplying the requisite material to him, fraudulently presented the cheques referred to in FIR for encashment and then he lodged the FIR against him. Hence, heavy burden lied upon the appellant to prove that the subject cheques were issued by the respondent/accused against the alleged supply of Metallic Yarn to respondent/accused for fulfillment of an obligation, which he could have proved easily by producing requisite record of his supply, but he failed to do so. Hence, the Trial Court rightly recorded acquittal of the respondents/accused by extending them benefit of doubt.

7. The material on record approves the assessment of the Trial Court: hence, the prosecution has failed to bring home guilt of respondents/ accused beyond reasonable doubt. It is well settled principle of law that for basing conviction against an accused there should be strong evidence before the Trial Court and if the doubt, even slightest, arises in the prudent mind as to the guilt of the accused, benefit of the same has to be extended in favour of the accused.

2024 Y L R 2831

[Sindh (Hyderabad Bench)]

Before Khadim Hussain Tunio and Arbab Ali Hakro, JJ

Adam Khan---Appellant

Versus

The State---Respondent

Criminal Appeal No. D-65 and Confirmation Case No. 14 of 2021, decided on 2nd August, 2023.

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

----Ss. 302(b), 324 & 504---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Lodging of FIR with promptitude---Accused was charged for committing murder of the brother of complainant by firing---Record showed that the occurrence resulting in the demise of the complainant's brother occurred on 16.8.2015 at 8:45 p.m.---Incident in question was promptly reported to the police, resulting in the lodging of FIR that very day at 11:00 p.m., a mere two hours and fifteen minutes following the incident---Inter-se distance between the place of occurrence and the police station measured two kilometers---Such aspect of the case effectively demonstrated the prompt reporting of the matter to the police without any undue delay, showed the truthfulness of the prosecution case, and excluded the possibility of deliberation and consultation---Circumstances established that the prosecution had successfully established its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 504---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the brother of complainant by firing---Since the parties were already familiar with each other, there was no possibility of misidentification---Complainant and his nephew furnished the ocular account---Both said witnesses had clearly mentioned that the accused had an official weapon i.e. Kalashnikov (rifle), with which he fired upon the deceased resulting in his death---Deceased's injuries were borne out from the post-mortem report, and a crime weapon was also secured from the accused---During the trial, the said prosecution witnesses underwent a lengthy cross-examination conducted by the defence, however, no evidence was elicited that could be deemed beneficial to the accused or detrimental to the prosecution---Deposition of both witnesses remained consistent in every essential aspect as they provided accounts that aligned precisely with the circumstances of the case---Consequently, it was reasonable to infer that the prosecution's ocular testimony was reliable, forthright and imbued with a sense of confidence---Medical evidence presented in the documented materials supported the ocular testimony in terms of the specific details related to the nature, timing, location and consequences of the injury sustained by the deceased---Even otherwise, in cases where ocular evidence was deemed reliable and instilled confidence, it was accorded greater weight than medical evidence---Circumstances established that the prosecution had successfully established its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

2010 SCMR 1009; 2023 MLD 156; 2019 YLR 1146; 1992 MLD 551; 2017 P Cr. LJ 280, 2017 P Cr. LJ 1113 and 2022 YLR Note 185 ref.

Muhammad Iqbal v. The State 1996 SCMR 908; Faisal Mehmood and another v. The State 2010 SCMR 1025 and Muhamamd Ilyas v. The State 2011 SCMR 460 rel.

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

----Ss. 302(b), 324 & 504---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Presence of accused and witnesses at the venue proved---Accused was charged for committing murder of the brother of complainant by firing---Accounts of both eye-witnesses unequivocally asserted that they accompanied by the deceased, arrived in city on a motorcycle and subsequently visited the shop of "AH" (the place of occurrence) with the intention of having the motorcycle's oil changed---Testimonies provided by the eye witnesses had been corroborated by an independent witness, "AH", who was the proprietor of the shop where the eye-witnesses in the company of the deceased sought oil changing and motorcycle tuning services---According to said witness, on the evening of August 16, 2015, from approximately 8:00 to 8:30 p.m., he was present at his workshop when three individuals, deceasedand eye-witnesses, arrived at his workshop on a motorycle to have their vehicle tuned and its oil changed---Hence, the presence of the eye-witnesses on the spot at the relevant time was proved---Record showed that the presence of the deceased as well as prosecution witnesses at the place of incident had been established by the prosecution---Prosecution had successfully established that the presence of the accused at the place of incident along with rifle and firing upon the deceased with such official weapon--- Circumstances established that the prosecution had successfully established its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 504---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused was charged for committing murder of the brother of complainant by firing---As per record, the prosecution successfully proved that five empties of 7.62 mm bore were secured from the place of incident and sent to the Ballistics Expert for matching with the crime-weapon---Prosecution had produced Ballistic Expert's Report, which established that the said empties were fired from the rifle carried by the accused and it was further mentioned in the Ballistic Expert's Report that the striker pin marks, breech face marks and ejector marks etc. were found to be similar---Accused had never denied his presence at the spot along with official rifle; and firing with the said weapon---Circumstances established that the prosecution had successfully established its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 504---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Related and interested witnesses, evidence of---Reliance---Accused was charged for committing murder of the brother of complainant by firing---Defence alleged that the witnesses of the ocular account were related to the deceased, therefore, their testimonies could not be believed to sustain a conviction of the accused---However, mere relationship between the prosecution witnesses and the deceased did not suffice as a basis for disregarding the credibility of their testimonies---Circumstances established that the prosecution had successfully established its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Imran Mehmood v. The State 2023 SCMR 795 and Iqbal alias Bhala v. The State 1994 SCMR 1 rel.

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

----Ss. 302(b), 324 & 504---Qatl-i-amd, attempt to commit qatl-i-amd, intentional insult with intent to provoke breach of the peace---Appreciation of evidence---Motive proved---Accused was charged for committing murder of the brother of the complainant by firing---Motive set up in the FIR was over a brotherly feud between the accused and the deceased, which was also established---Neither the defence seriously disputed the motive part of the prosecution story nor the witnesses were cross-examined on the issue of motive---Circumstances established that the prosecution had successfully established its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Asif Ali Talpur for Appellant.

Farhad Ali Abro and Shoukat Ali Kaka for the Complainant.

Nazar Muhammad Memon, Additional P.G Sindh for the State.

Date of hearing: 18th July, 2023.

Judgment

Arbab Ali Hakro, J.---In this Criminal Appeal, the appellant challenges the judgment dated 28.5.2021, passed by the 1st Additional Sessions Judge/M.C.T.C Tando Allahyar in Sessions Case No.102 of 2015, arising out of FIR No.42 of 2015, registered at Police Station B-Section Tando Allahyar for offences punishable under Sections 302, 324, 504, P.P.C. After a full dressed trial, appellant was awarded death sentence under Section 302(b), P.P.C subject to the confirmation by this Court. Appellant was also directed to pay compensation of Rs.500,000/- to the legal heirs of deceased Asad Ali Nahiyoon as required under section 544-A, Cr.P.C. The appellant was also convicted under Section 324, P.P.C and sentenced to suffer R.I. for six years and to pay a fine of Rs.20,000/- and in case of default, appellant was directed to suffer S.I. for two months more and convicted under Section 504, P.P.C and sentenced to suffer R.I. for two years and to pay fine of Rs.20,000/- and in case of default he shall suffer S.I. for one month more. However, benefit of Section 382-B, Cr.P.C was also extended to the appellant.

1. The backdrop of the case, as reflected from the record, is that on 16.08.2015 at 2045 hours Muhammad Ali son of Muhammad Hashim Nahiyoon, lodged FIR at PS B-Section Tando Allahyar to the effect that he is a landlord by profession and had a dispute over family matters with Adam Khan son of Khamiso Nahiyoon, such faisla was held. On 16.08.2015 at evening, the complainant along with his brother Asad Ali Nahiyoon and nephew Altaf Hussain came at Tando Allahyar city on motorcycle and after getting free from there, they came at a mechanic shop of Abid Hussain for changing of motorcycle oil. Complainant, his brother and nephew named above sat on a wooden bench in front of the shop during which they saw constable Adam Khan Nahiyoon crossed from their side. After a while, at about 0845 hours, Adam Khan Nahiyoon duly armed with official Kalashnikov came there attired in official uniform and started hurling abuses to the complainant party, aimed his rifle towards them and made straight fires upon them which hit on the neck and other parts of complainant's brother Asad Ali who died on the spot. Head constable Abdul Rasheed Bhayoon and Constable Muhammad Hashim Khaskheli arrived there as well who held/grabbed Adam Khan Nahiyoon and made him sit in the police vehicle. Thereafter, the complainant found that his brother Asad Ali had sustained firearm injuries on right side of neck, one injury on left side of hip, one injury on right side of the back below the shoulder, and one injury on the right back side above the flank/kidney. The dead body was then shifted to Civil Hospital Tando Allahyar. Meanwhile, SIP Rehmatullah Saddar also came there and after observing formalities and postmortem examination, the dead-body was made over to the complainant for its burial who, after getting free from its burial, formally reported the incident to Police.

2. Upon the conclusion of the investigation, a report in accordance with Section 173, Cr.P.C. was submitted before the trial court. The prosecution, aiming to substantiate its case, presented a total of nine witnesses. In his statement recorded under Section 342, Cr.P.C, the appellant firmly asserted his innocence and vehemently denied all charges brought against him. Nevertheless, the appellant did not appear as his own witness on oath as provided under Section 340(2), Cr.P.C, thereby failing to provide evidence to counter the allegations made against him. Nevertheless, as part of his defence, the appellant gave the names of Lakha Dino, Mumtaz, Riaz Ahmed Soomro, and Wasif (a clerk employed at Central Prison Hyderabad) as defence witnesses. Subsequently, the appellant submitted an application to the trial Court, containing an assertion that his private defence witnesses have experienced harassment, consequently rendering them unwilling to attend the Court for evidence. Therefore, the statements provided by officials DWs Wasif Ali and Riaz Ahmed were recorded.

3. At the very outset, learned counsel for the appellant contended that the incident took place at 8:45 p.m. and the appellant has been produced at Police Station at 9:00 p.m. and his arrest has been shown in presence of private mashirs; that time is not mentioned in the memos. prepared by the I.O.; that as per post mortem notes, time between death and occurrence is about 2 to 3 hours; that there is delay in lodging of the FIR; that post mortem was finished at 11:45 p.m.; that the P.W.s are interested and inimical; that no independent witness has been cited by the prosecution; that police officials namely PCs Riaz Gul and Ashique Ali, Incharge Malkhana as well as Incharge Police lockup have not been cited in the case as prosecution witnesses; that P.W HC Abdul Rasheed has been declared hostile by the prosecution; that names of P.W.s HC Abdul Rasheed and D.P.C Muhammad Hashim and mechanic Abid have not been mentioned in interim challan produced by appellant through statement under Section 342, Cr.P.C.; that as per evidence of Doctor, the firearm injury was caused by different directions; that wife of deceased is sister of PW Altaf Hussain; that there are material contradictions and discrepancies in the evidence of PWs; that there is no mention of wall situated at the place of incident in the sketch prepared by the Tapedar; that false story has been cooked up by Police party at the instance of PW Nasreen, complainant Muhammad Ali and SIP Rehmatullah; that weapon produced/alleged to have been recovered from the appellant is Rifle whereas empties /cartridges have been referred to F.S.L.; that none from the P.W.s have received any injury. In support of his contentions, he relied upon case law reported in 2010 SCMR 1009, 2023 MLD 156, 2019 YLR 1146, 1992 MLD 551, 2017 P Cr. LJ 280, 2017 P Cr. LJ 1113 and 2022 YLR. Note 185.

4. Learned Additional Prosecutor General Sindh contended that the appellant had made four (04) shots at the deceased; that appellant had misused the official weapon; that appellant is a Police official and that he misused the official weapon while committing the alleged offence; that there is no chance of mistaken identity of the appellant or substitution of the accused; that the appellant was arrested at the spot by the Police party with whom he was on duty and FIR was lodged promptly.

5. Learned counsel for the complainant contends that DWs have not supported the defence plea as they have disclosed all the facts before the trial Court in their evidence; that prosecution version has been supported by all the PWs through their evidence as well as by medical evidence; that complainant party has produced copies of certain documents through statements in respect of motive alleged by the complainant party in the FIR; that S.S.P., Tando Allahyar, conducted one enquiry against the appellant and has been removed from service; that five empties have been recovered from the place of scene.

6. The learned counsel for both parties has presented their arguments at considerable length and we have thoroughly examined the available evidence on record with their able assistance.

7. Upon careful perusal of the record, it becomes apparent that the regrettable occurrence resulting in the demise of the complainant's brother occurred on 16.8.2015 at 8:45 p.m. The incident in question was promptly reported to the Police, resulting in the lodging of FIR that very day at 11:00 p.m, a mere two hours and fifteen minutes following the incident. The inter-se distance between the place of occurrence and the Police Station measured two kilometers. This aspect of the case effectively demonstrates the prompt reporting of the matter to the Police without any undue delay, shows the truthfulness of the prosecution case, and excludes the possibility of deliberation and consultation. Since the parties were already familiar with each other, there was no possibility of misidentification. In this case, Muhammad Ali the complainant (PW-01) and Altaf Hussain (PW-02) furnished the ocular account. Both these witnesses had clearly mentioned that the appellant had an official weapon i.e. Kalashnikov (rifle), with which he fired upon the deceased which resulting in his death. The deceased's injuries were borne out from the post-mortem report, and a crime weapon was also secured from the appellant. During the trial, the above prosecution witnesses underwent a lengthy cross-examination conducted by the defence. However, no evidence was elicited that could be deemed beneficial to the appellant or detrimental to the prosecution. The deposition of both witnesses remained consistent in every essential aspect as they provided accounts that aligned precisely with the circumstances of this case. Consequently, it is reasonable to infer that the prosecution's ocular testimony is reliable, forthright and imbued with a sense of confidence. The accounts of both eye-witnesses unequivocally assert that they accompanied by the deceased Asad Ali, arrived in Tando Allahyar City on a motorcycle and subsequently visited the shop of PW-Abid Hussain (the place of occurrence) with the intention of having the motorcycle's oil changed. The testimonies provided by the eye-witnesses, as mentioned above, have been corroborated by an independent witness, Abid Hussain, who is the proprietor of the shop where the eye-witnesses, in the company of the deceased Asad Ali, sought oil changing and motorcycle tuning services. According to PW Abid Hussain, on the evening of August 16, 2015, from approximately 8:00 to 8:30 p.m, he was present at his workshop when three individuals, identified as Asad Nahiyoon (now deceased), Muhammad Ali, and Altaf Nahiyoon (the eye-witnesses as mentioned above), arrived at his workshop on a 125-Motorycle to have their vehicle tuned and its oil changed. Hence, the presence of the eye-witnesses on the spot at the relevant time was also proved. It is matter of record that the presence of the deceased as well as prosecution witnesses at the place of incident has been established by the prosecution. The prosecution has successfully established that the presence of the appellant at the place of incident along with Rifle bearing No.35025784 and firing upon the deceased with such official weapon. It is also proved on record that blood-stained clothes and blood-stained earth were sent for chemical examination and on chemical examination, it was proved through Chemical Report dated: 07.9.2015 that the clothes of the deceased and the earth secured from the place of incident contained human blood. The prosecution has successfully proved that five empties of 7.62 mm bore were secured from the place of incident "C/1" to "C/5" and sent to the Ballistics Expert for matching with the crime-weapon. The prosecution has produced Ballistic Expert's Report dated 24.8.2015 as Exh.10/J, which established that the said empties were fired from the Rifle bearing No.35025784 carried by the appellant and it was further mentioned in the Ballistic Expert's report that the striker pin marks, breech face marks and ejector marks etc. were found to be similar. The appellant has never denied his presence at the spot along with official rifle; firing with the said weapon.

8. The medical evidence presented in the documented materials supports the ocular testimony in terms of the specific details related to the nature, timing, location and consequences of the injury sustained by the deceased. Even otherwise, it is well established legal principle of law that in cases where ocular evidence is deemed reliable and instills confidence, it is accorded greater weight than medical evidence. In the case of Muhammad Iqbal v. The State (1996 SCMR 908), the Apex Court held that "ocular testimony being wholly reliable, conviction could even be safely based on the same without further corroboration." In the case of Faisal Mehmood and another v. The State (2010 SCMR 1025), it was held that "reliable ocular testimony did not need any corroboration to lose conviction". Similar was the view of Apex Court in the case of Muhammad Ilyas v. The State (2011 SCMR 460), wherein it was held that "it is not medical evidence to determine question of guilt or innocence, but it is ocular version which is required to be taken into consideration at first instance".

9. As far as the question that the witnesses of the ocular account are related to the deceased, therefore, their testimonies cannot be believed to sustain a conviction of the appellant is concerned, it is by now a well-established principle of law that mere relationship between the prosecution witnesses and the deceased does not suffice as a basis for disregarding the credibility of their testimonies. The counsel representing the appellant could not provide any credible justification for the complainant's false accusation against the appellant in the present case while neglecting to implicate the actual perpetrator responsible for the murder of his real brother. In this context, I am fortified with the case of Imran Mehmood v. The State (2023 SCMR 795), wherein Apex Court has held as under: -

"However, it is by now a well established principle of law that mere relationship of the prosecution witnesses with the deceased cannot be a ground to discard the testimony of such witnesses out-rightly. If the presence of the related witnesses at the time of occurrence is natural and their evidence is straight forward and confidence inspiring then the same can be safely relied upon to award capital punishment."

2024 Y L R 2857

[Sindh]

Before Mahmood A. Khan and Nadeem Akhtar, JJ

Imtiaz---Appellant

Versus

M/s Pacific Oil Mills (Pvt.) Ltd. and another---Respondents

1st Civil Appeal No. 72 of 2021, heard on 2nd February, 2022.

Civil Procedure Code (V of 1908)---

----S.96 & O.XXXVII, Rr. 1 & 2---Suit for recovery on the basis of written submission and cheque---Application for leave to defend the suit, refusal of---Scope---Existence of business relationship under distributor agency agreement---Appellant denied the business relationship and submitted that the cheque was obtained forcibly---Contention of the appellant was that grounds of the application for leave to appear and defend the suit was not considered before refusal thereof---Validity---Trial Court had considered the grounds of leave to defend as brought forward on the part of the appellant and also had discussed the same---Trial Court had given a reasonable order based upon application of mind and law---Existence of business along with the version of availability of the negotiable instrument was properly considered along with the sufficient material present on record in that regard---Requirement of leave to lead evidence was not made out, as leave was available only when disputed questions of facts arise from the record, which in the present case had not been shown by the appellant---Impugned order was not found suffering from any infirmity---Appeal was dismissed accordingly.

AIR 1956 Culcutta Page 553; AIR 1929 Bombay Page 462 and PLJ 1981 Karachi Page 99 Distinguished

M/s Ahmed Autos and another v. Allied Bank of Pakistan Ltd., PLD 1990 SC 497 rel.

Muhammad Ajmal Solangi for Appellant.

Sarosh Jamil for Respondent No. 1.

Date of hearing: 2nd February, 2022.

Judgment

Mahmood A. Khan, J.---This First Appeal filed under Section 96 C.P.C. has impugned the judgment and decree both dated 06.08.2021 as passed by learned VIIth Addl. District Judge, Karachi (South) in Summary Suit No. 33/2021, whereby, the suit of the respondent No.1 was decreed in the sum of Rs. 23,33,795/- along with markup @ 6% per annum. As per the record, the said summary suit was filed by the respondent No.1 stating that the respondent No.1 is premier supplier of cooking oil in Pakistan, enjoying impeccable reputation among its customers. The respondent No.1's company in order to increase the sales of its products entered into an agency agreement with the appellant at Karachi. Initially the distributorship went smoothly and amicably but towards the end of 2019 the appellant started defaulting on making payments to respondent No.1 despite the respondent No.1 providing him with the product to be distributed but the appellant continually and willfully defaulted and failed to make his due payments to the respondent No.1. The respondent No.1 repeatedly asked for their due payments but the appellant kept the respondent No.1 on false hopes. On much insistence the appellant issued a written submission in late 2019 acknowledging that he owned payments of Rs. 23,33,795/- to the respondent No.1 and in case he fails to comply with his commitment the respondent No.1 was at liberty to pursue legal action against him. The respondent No.1 tried every endeavor to get their money back from, the appellant including sending a legal notice to him, but to no avail. After repeated demands the appellant informed the respondent No.1 that the Cheque No.1710731918 may be en-cashed for the owed amount of Rs.23,33,795/-, The said cheque was deposited in the company s bank account which was dishonored due to insufficient funds. Thereafter despite repeated reminders by respondent No.1 in this regard the appellant has deliberately remained in default of his obligations towards respondent No.1 to date, as such the said suit was filed with prayer to direct the appellant to pay an amount to respondent No.1 in the sum of Rs. 23,33,795/- along with the prevailing interest rate from the institution of the suit until realization of the claimed amount.

1. That on appearance of the appellant and filing the leave to appear and defend, the same was declined by the learned VII Addl. District Judge, Karachi (South) and decreed the suit of the respondent No.1 in the sum of Rs. 23,33,795/- along with the prevailing interest rate from the institution of the suit until realization of the claimed amount.

2. The appellant has filed the instant First Appeal with the following prayer;

a) Under the above facts and circumstances, it is humbly prayed on behalf of the appellant above named that this Hon'ble Court may be pleased to call for the R&P of Summary Suit No 33/2021 from the Court of Vllth Addl. Sessions Judge, Karachi-South and after perusing and hearing the learned counsel be pleased to allow the appeal and set-aside the impugned judgment and decree both dated 06.08.2021.

b) This Hon'ble Court stay further proceeding of Summary Suit No. 33 of 2021 till the final disposal of this Appeal.

c) This Hon'ble Court may please to grant any other relief.

1. Learned counsel for the appellant contends that the learned Trial Court had decreed the suit at the very initial stage of granting of leave wherein cogent grounds were present. Learned counsel in this regard has relied upon the same grounds as taken in the leave to defend application along with further grounds taken in the memo. of appeal herein. It is as such contended on part of learned counsel for the appellant that the appellant was not having any business relationship with respondent No.1 and that the subject cheque was forcefully obtained from the appellant. It is further contended that the said matter was reported to the concerned authorities i.e. concerned Police Station and to the concerned Bank. Learned counsel for the appellant had contended that the appellant had made out a reasonable case of grant of leave, which was not entertained by the learned Trial Court and as such the subject decree is liable to be set aside. Learned counsel for the appellant in, support of his contentions, relies upon the case law reported as (i)"AIR 1956 Culcutta Page 553, (ii) AIR 1929 Bombay Page 462 and (iii) PLJ 1981 Karachi Page 99.

2024 Y L R 1

[Lahore (Rawalpindi Bench)]

Before Anwaar Hussain, J

MUHAMMAD UMAIR PASHA and another---Petitioners

Versus

DISTRICT COLLECTOR, JHELUM and 5 others---Respondents

Civil Revisions Nos. 103-D 104-D and 212-D of 2022, decided on 16th December, 2022.

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

----Art. 129--- Pardahnashin lady---Shifting of onus---Scope---Burden can be shifted to beneficiaries under sale deed executed by an attorney, to prove sale transaction and payment made thereunder only if lady measures up to status of Pardahnashin lady unable to transact her worldly affairs on account of her seclusion and privacy from socio-economic conditions of the outer world.

Muhammad Naeem Khan and another v. Muqadas Khan (decd) through LRs and another PLD 2022 SC 99 rel.

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

----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Art. 129---Suit for declaration and injunction---Fraud---Proof---Respondent/plaintiff claimed that she had settled abroad and petitioners/defendants purchased her property fraudulently on the basis of registered power of attorney executed by her which was not meant for sale---Suit was concurrently decreed in favour of respondent/plaintiff--- Validity--- Trial Court as well as Lower Appellate Court below gave undue weightage to the fact that petitioners/defendants could not prove payment of sale consideration when they failed to produce officials in whose presence they claimed to have paid money--- Respondent's/plaintiff's own witness acknowledged in his affidavit that suit property was sold and consideration amount was lying with attorney---There was no element of fraud proved by plaintiff as against respondents---When plaintiff/respondent admitted execution of General Power of Attorney she could not seek to set aside sale deed registered on the basis of such Power of Attorney pleading innocence and ignorance about contents of such General Power of Attorney, which were prepared by her own witness---No relation or connivance was established between attorney and petitioners/ defendants regarding execution of General Power of Attorney in favour of attorney---It was not denied that on the strength of General Power of Attorney, suit property was sold to petitioners/ defendants---Petitioners/defendants were required to be protected as transferee of suit property for consideration duly received by attorney under General Power of Attorney on behalf of the Principal (respondent / plaintiff)---Attorney was required to prove his transaction of sale as it was he who was beneficiary of both the transactions, i.e., purported purchase from respondent/ plaintiff along with execution of General Power of Attorney and sale in favour of petitioners/defendants---Attorney also asserted and admitted both the transactions but the case was not examined by two Courts below from such angle at all---High Court in exercise of revisional jurisdiction set aside concurrent findings of facts by two Courts below and dismissed the suit filed by respondent/ plaintiff--- Revision was allowed accordingly.

Imam Din and 4 others v. Bashir Ahmed and 10 others PLD 2005 SC 418 ref.

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

----O. VI, R. 4---Fraud, particulars of---Scope---When a plaintiff comes forward with averment regarding fraud, it must be specifically pleaded and proved beyond all reasonable doubts.

(d) Evidence---

----Minor contradictions---Evidence has to be read as a whole to determine its preponderance---Minor contradictions in statements of parties or any other weakness thereof cannot be made basis to deprive them from their lawful rights accrued in their favour.

Malik Shahid Mehmood Kandwal and Malik Muhammad Fiaz Kandwal for Petitioners.

Mushtaq Ahmad Mohal, Additional Advocate General and Ms. Amna Ali, Assistant Advocate General for Respondents Nos. 1 and 2.

Faisal Kiyani for Respondent No. 3.

Ch. Adeel Fraz for Respondent No. 4.

2024 Y L R 23

[Lahore]

Before Malik Shahzad Ahmad Khan and Muhammad Amjad Rafiq, JJ

MUHAMMAD RAFIQUE and another---Appellants

Versus

The STATE and another---Respondents

Criminal Appeal No. 5537 and Murder Reference No.14 of 2022, heard on 27th March, 2023.

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

----Ss. 302(b), 302(c), 364, 147 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, unlawful assembly---Appreciation of evidence---Grave and sudden provocation---Conviction under S.302(b), P.P.C. converted in S. 302(c), P.P.C.---Accused were charged for committing murder of the son of the complainant and sister of one of the accused persons---First Information Report was lodged with the delay of 05 hours and 30 minutes from the occurrence---Distance between the place of occurrence and the police station was 12 kilometers and mere delay in reporting the matter to the police might not be fatal to the prosecution case---Insofar as the case of accused "R" was concerned, neither he made any confession before the Trial Court nor he had admitted the murder of both the deceased in his statement recorded under S. 342, Cr.P.C., therefore his appeal was allowed and he was acquitted of the charge by extending him the benefit of doubt--- However, circumstances established that the prosecution had proved its case against the accused "A" however, due to grave and sudden provocation, he committed the murder of both the deceased---Consequently, the punishment awarded under S. 302(b), P.P.C., was converted into S. 302(c), P.P.C. and he was sentenced to fourteen years---Appeal was partly allowed to the extent of said accused".

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

----Ss. 302(b), 302(c), 364, 147 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, unlawful assembly---Appreciation of evidence---Delay of 14 hours and 45 minutes in conducting the postmortem examination on the dead bodies of the deceased persons---Accused were charged for committing murder of the son of the complainant and sister of one of the accused persons---There was delay of 14 hours and 45 minutes in conducting the postmortem examination on the dead body of son of complainant whereas, there was delay of 15 hours in conducting the postmortem examination on the dead body of lady deceased---Said delay in conducting the postmortem examinations on the dead bodies of both the deceased persons was suggestive of the fact that the occurrence was unseen and the said delay was consumed in procuring the attendance of fake eye-witnesses---Insofar as the case of accused "R" was concerned, neither he made any confession before the Trial Court nor he had admitted the murder of both the deceased in his statement recorded under S. 342, Cr.P.C, therefore his appeal was allowed and he was acquitted of the charge by extending him the benefit of doubt---However, circumstances established that the prosecution had proved its case against the accused "A" however, due to grave and sudden provocation, he committed the murder of both the deceased---Consequently, the punishment awarded under S. 302(b), P.P.C., was converted into S. 302(c), P.P.C. and sentenced him to fourteen years---Appeal was partly allowed to the extent of said accused.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Zafar v. The State and others 2018 SCMR 326 and Muhammad Ashraf v. The State 2012 SCMR 419 rel.

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

----Ss. 302(b), 302(c), 364, 147 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, unlawful assembly---Appreciation of evidence---Night time occurrence---Source of light---Accused were charged for committing murder of the son of the complainant and sister of one of the accused persons---Occurrence took place in the month of January at 04.45 a.m., meaning thereby that it took place during the darkness of night---Record showed that no source of light had been mentioned in the site plan or in the statements of the prosecution eye-witnesses rather complainant during his cross-examination had conceded that no light was installed in the street between his house and that of the accused---Insofar as the case of accused "R" was concerned, neither he made any confession before the Trial Court nor he had admitted the murder of both the deceased in his statement recorded under S. 342, Cr.P.C, therefore his appeal was allowed and he was acquitted of the charge by extending him the benefit of doubt---However, circumstances established that the prosecution had proved its case against the accused "A" however, due to grave and sudden provocation, he committed the murder of both the deceased---Consequently, the punishment awarded under S. 302(b), P.P.C. was converted into S. 302(c), P.P.C. and sentenced him to fourteen years---Appeal was partly allowed to the extent of said accused.

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

----Ss. 302(b), 302(c), 364, 147 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, unlawful assembly---Appreciation of evidence---Unnatural conduct of witnesses---Accused were charged for committing murder of the son of the complainant and sister of one of the accused persons---According to the prosecution case, as set forth in the FIR, on the night of occurrence, accused was present in his house, where complainant and his sons were also present along with his wife and deceased and as such, the complainant party comprised of total seven members---Witness/son of the complainant had conceded during his cross-examination that the house of his uncle was situated in front of the house of the complainant party and said uncle had six sons---Said witness further conceded during his cross-examination that he had not recorded in his statement before the police that any of his family members raised hue and cry when his brother was beaten and abducted by the accused persons nor he informed any neighbour in that respect though house of his uncle who had six sons was situated in front of his house---Noteworthy that the accused persons were not armed with any lethal firearm weapon like pistol, gun etc and according to the prosecution case, they were armed with 'kappas' and 'dandas' but the complainant party, who comprising of at least seven members did not try to rescue deceased from the hands of the accused persons---Thus, the conduct of the prosecution eye-witnesses, who were closely related to deceased was highly unnatural therefore, their presence at the spot was highly doubtful, hence their evidence was not worthy of reliance---Insofar as the case of other "R" was concerned, neither he made any confession before the Trial Court nor he had admitted the murder of both the deceased in his statement recorded under S. 342, Cr.P.C., therefore his appeal was allowed and he was acquitted of the charge by extending him the benefit of doubt---However, circumstances established that the prosecution had proved its case against the accused "A" however, due to grave and sudden provocation, he committed the murder of both the deceased---Consequently, the punishment awarded under S. 302(b), P.P.C. was converted into S. 302(c), P.P.C. and sentenced him to fourteen years---Appeal was partly allowed to the extent of said accused.

Liaquat Ali v. The State 2008 SCMR 95; Pathan v. The State 2015 SCMR 315 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302(b), 302(c), 364, 147 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, unlawful assembly---Appreciation of evidence---Ocular account in conflict with medical evidence---Accused were charged for committing murder of the son of the complainant and sister of one of the accused persons---Record showed that ocular account of the prosecution in the present case was in conflict with the medical evidence---Prosecution case as set forth in the FIR, was that on the night of occurrence, accused persons while armed with different weapons came to the house of the complainant and forcibly dragged deceased while giving him 'sota' blows and took him into the house of the accused party where they committed the murder of both the deceased persons---According to the postmortem report of deceased, there was no injury on his body except one injury on his neck which was attributed to accused---Noteworthy that according to the postmortem report of lady deceased, there were two injuries on her body, one was on her right cheek, whereas, other was on the right side of her neck---None of the prosecution eye-witnesses explained injury No. 1 on the body of lady deceased---Even the Trial Court had partly disbelieved the evidence of the prosecution eye-witnesses regarding the forcible abduction of deceased and infliction of 'danda' blows on his body by the accused party---Co-accused, who were statedly armed with sotas, had already been acquitted by the Trial Court and petition for leave to appeal filed against their acquittal had also been dismissed---Said conflict between ocular account and medical evidence of the prosecution created dent in the prosecution case---Insofar as the case of accused "R" was concerned, neither he made any confession before the Trial Court nor he had admitted the murder of both the deceased in his statement recorded under S. 342, Cr.P.C., therefore his appeal was allowed and he was acquitted of the charge by extending him the benefit of doubt---However, circumstances established that the prosecution had proved its case against the accused "A" however, due to grave and sudden provocation, he committed the murder of both the deceased---Consequently, the punishment awarded under S. 302(b), P.P.C., was converted into S. 302(c), P.P.C. and sentenced him to fourteen years---Appeal was partly allowed to the extent of said accused.

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

----Ss. 302(b), 302(c), 364, 147 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Inconsequential---Accused were charged for committing murder of the son of the complainant and sister of one of the accused persons---Record showed that a blood stained "kappa' was recovered on the pointation of accused---Noteworthy that the 'kappa' was recovered on the pointation of the accused after 01 month and 03 days from the occurrence and during the said period, said accused had ample opportunity to wash way the blood on the 'kappa'---Moreover, blood disintegrated during the period of one month and three days---In the light of said fact, recovery of blood stained 'kappa' on the pointation of accused was not free from doubt---Insofar as the case of accused "R" was concerned, neither he made any confession before the Trial Court nor he had admitted the murder of both the deceased in his statement recorded under S. 342, Cr.P.C., therefore his appeal was allowed and he was acquitted of the charge by extending him the benefit of doubt---However, circumstances established that the prosecution had proved its case against the accused "A" however, due to grave and sudden provocation, he committed the murder of both the deceased---Consequently, the punishment awarded under S. 302(b), P.P.C. was converted into S. 302(c), P.P.C. and sentenced him to fourteen years---Appeal was partly allowed to the extent of said accused.

Basharat and another v. The State 1995 SCMR 1735 and Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

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

----Ss. 302(b), 302(c), 364, 147 & 149---Qatl-i-amd, kidnapping or abducting in order to murder, rioting, unlawful assembly---Appreciation of evidence--- Sentence, reduction in---Grave and sudden provocation---Accused were charged for committing murder of the son of the complainant and sister of one of the accused persons---Record showed that accused "A", while making his statement under S. 342 of Cr.P.C., had candidly admitted the occurrence with the stance that on the night of occurrence, he committed the murder of both the deceased on account of grave and sudden provocation and 'ghairat'---Occurrence in the present case took place on 29.01.2013 which meant that the same took place prior to the amendment brought in S. 311 of P.P.C. whereby it was provided that if the offence had been committed in the name or on the pretext of honour, punishment would be imprisonment for life---As the said amendment could not be applied retrospectively and as the occurrence of this case took place prior to the introduction of said amendment therefore, the said amendment in the relevant law was not applicable in this case---Notable from the statement of accused "A" recorded under Section 342 of Cr.P.C., that on the night of occurrence, he had seen his sister/ deceased with the deceased in objectionable condition in a room of his house, in the odd hours of night, therefore, due to grave and sudden provocation, he committed the murder of both the deceased---If the prosecution evidence was disbelieved then statement of an accused was to be accepted or rejected in toto---If the statement of accused "A" was accepted in toto, then to his extent, it was a case punishable under S. 302(c), P.P.C. and not a case punishable under S. 302(b), P.P.C.---Consequently, the punishment awarded under S. 302(b), P.P.C., was converted into S. 302(c), P.P.C. and sentenced him to fourteen years---Appeal of the said accused was partly allowed with the modification of sentence---Insofar as the case of other accused "R" was concerned, neither he made any confession before the Trial Court nor he had admitted the murder of both the deceased in his statement recorded under S. 342, Cr.P.C., therefore his appeal was allowed and he was acquitted of the charge by extending him the benefit of doubt.

Muhammad Shahzad Saleem Warraich for Appellants.

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Malik Azhar Abbas Waseer for the Complainant.

2024 Y L R 40

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mst. RESHAM BEGUM (deceased) through L.Rs.---Appellants

Versus

KENTH and others---Respondents

Civil Revision No. 907 of 2015, decided on 22nd February, 2023.

Colonization of Government Lands (Punjab) Act (V of 1912)---

----Ss. 20(b) & 21(b)---Limitation Act (IX of 1908), S. 3--- Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Limitation---Inheritance of tenancy rights---Mutation, assailing of---Predecessor-in-interest of petitioners/plaintiffs assailed mutations sanctioned in years 1935 and 1937 in favour of predecessor-in-interest of respondents / defendants--- Suit was decreed by Trial Court but Lower Appellate Court dismissed the suit for being barred by limitation---Validity---First mutation in question was sanctioned under S. 20(b) of Colonization of Government Lands (Punjab) Act, 1912, thereafter other mutation was sanctioned when mother of predecessor-in-interest of petitioners/ plaintiffs contracted second marriage in light of S. 21(b) of Colonization of Government Lands (Punjab) Act, 1912---Both the mutations were sanctioned in accordance with the law applicable upon the tenancy rights of father of predecessor-in-interest and the predecessor-in-interest of petitioners/ plaintiffs, was rightly excluded from the inheritance---Public interest required that there should be an end to the litigation---Whoever wished to dispute presumption of co-incidents of facts and right must do so within the period provided by law, otherwise, his right if any would be forfeited as a penalty for such neglect---Law required that persons aggrieved by any order of an authority must come to the Court and could take recourse to legal remedies with due diligence---High Court declined to interfere in judgment and decree passed by Lower Appellate Court---Revision was dismissed, in circumstances.

Mst. Inayat Bibi through legal heirs v. Issac Nazir Ullah and 2 others PLD 1992 SC 385; Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167 and Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558 rel.

Muhammad Ashraf Qureshi for Petitioner.

Mahar Muhammad Nawaz Naul for Respondents.

2024 Y L R 56

[Lahore]

Before Masud Abid Naqvi, J

GHULAM HUSSAIN (deceased) through Legal heirs and others---Petitioners

Versus

SHER MUHAMMAD (deceased) through Legal heirs and others---Respondents

Civil Revision No. 598 of 2012, decided on 5th November, 2021.

Civil Procedure Code (V of 1908)---

----O. VII, Rr. 11 & 13---Specific Relief Act (I of 1877) , S. 12---Suit for specific performance of agreement to sell---Rejection of plaint---Cause of action, arising of---Scope---Suit filed by the plaintiff regarding agreement to sell/ transfer of proprietary rights qua suit-property (state land) was concurrently decreed in his favour---Contention of the petitioners (vendors/defendants) was that the Province of the Punjab('the Province') had not granted proprietary rights of the suit-property to them yet---Validity---Record revealed that suit-property was still owned by the Province and the state retained its powers to deny the proprietary rights to the petitioners/defendants in case of any violation, hence both the Courts below, while passing the impugned judgments and decrees , failed to appreciate the material fact that the respondent/plaintiff had filed suit for specific performance before arising cause of action as the alleged agreement to sell could not be enforced until proprietary rights were confirmed by the Province to the petitioners/defendants---High Court set-aside the impugned judgments and decrees having been passed in favour of respondent/plaintiff; and rejected the plaint filed by the respondent/plaintiff under R. 11 read with Rule 13 of O. VII of Civil Procedure Code, 1908---Revision was allowed, in circumstances.

Commissioner Multan Division, Multan and others v. Muhammad Hussain and others 2015 SCMR 58 ref.

Saif-ul-Haq Ziay for Petitioners.

Inam Ullah Hashmi for Respondents Nos. 1(a) to 1(e).

2024 Y L R 94

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

JAN MUHAMMAD alias JANI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 817-J and Murder Reference No. 126 of 2019, heard on 17th October, 2022.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of witnesses at the time and place of occurrence---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---Motive behind the occurrence was that accused "B" kidnapped a lady for committing Zina and in that regard, deceased got lodged FIR against said accused and due to said grudge, the accused persons committed the offence---Prosecution case revolved around the statement of two eye-witnesses of the occurrence including complainant also---Both the said prosecution witnesses were brothers of the deceased---Complainant admitted during cross-examination that his house was at a distance of as much as 5/6 acres from the place of occurrence---Both the said witnesses did not explain as to why and in what circumstances, they came to be present at the place and time of occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---Record showed that the witnesses claimed that they had witnessed the occurrence in the light of an electric bulb which was lit at the place of occurrence, however, the said electric bulb was neither produced by the prosecution witnesses to the Investigating Officer of the case nor the Investigating Officer of the case, during his visit to the place of occurrence, took into possession any such electric bulb---Non-production of the electric bulb which was allegedly lit at the place of occurrence at the time of occurrence was all the more a matter of disquiet for the reason that the trial of the case was conducted in a private complaint and if the said source of light was indeed available then the complainant of the case could have easily produced the same before the Trial Court---Failure of the complainant of the case to produce the said bulb before the trial Court led to only one conclusion and that being that no such source of light was available at the place of occurrence which could have enabled the eye-witnesses to have identified the assailants and also witness the individual roles of the assailants as acted by them during the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Delay in reporting the matter to police---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---Record showed that despite the occurrence having taken place at about 01.00 a.m. on 04.06.2010, the matter was not reported to the police till 04.30 a.m. on 04.06.2010---According to the prosecution witnesses a motorcycle was available at the place of occurrence and the complainant travelled upon the same for reporting the matter to the police, however, still the oral statement of complainant was recorded by Police Officer (since dead) at 04.30 a.m. and the formal FIR was registered on the basis of the said oral statement of complainant by another Police Officer at 04.50 a.m. on 04.06.2010---In such a case, the ocular account furnished was suffering from legal and factual infirmities and did not appeal to a prudent mind, because, the complainant delayed the matter of reporting the incident to the police---Said inordinate delay in reporting the matter conclusively proved that the prosecution witnesses were not present at the place and time of occurrence and the said delay was used to procure their attendance---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Benefit of doubt---Presence of the witnesses at the time and place of occurrence not proved---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---Failure of the complainant to name the appellate as an accused in his oral statement on the basis of which formal FIR was registered conclusively proved that the accused was involved in the case subsequently and had the witnesses seen the accused present at the place of occurrence, taking part in the same, then there did not exist any possibility that they would not have named him as an accused in the FIR---Despite the fact that the occurrence took place at about 01.00 a.m. on 4thJune, 2010, the postmortem examination of the dead body of the deceased was conducted after much delay at about 10.45 a.m. on 4th June, 2010---According to Medical Officer, he on 04.06.2010 at about 10.45 a.m. conducted the post-mortem examination of the dead body of deceased after more than nine hours of the occurrence---Medical Officer also noted developed rigor mortis at the time of conducting the post-mortem examination of the dead body of the deceased---However, rigor mortis was a term which stands for the stiffness of voluntary and involuntary muscles in human body after death, which starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate---No explanation was offered to justify the said delay in conducting the postmortem examination of the dead body---Inordinate and unexplained and substantial delay in the post-mortem examination of the dead body clearly established that the witnesses claiming to have seen the occurrence or having seen the accused escaping from the place of occurrence had not seen the occurrence and were not present at the time of occurrence---Delay in the post-mortem examination was used to procure their attendance and formulate a dishonest account of the occurrence, after consultation and planning---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Acquittal of co-accused on the same set of evidence---Effect---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---Both the prosecution witnesses attributed causing of injuries to the deceased by co-accused persons of the accused,both since acquitted, however, both the witnesses were found to have made false statements with regard to co-accused persons of the accused---No independent corroboration of the prosecution case was found against the accused and Court was unable to distinguish the case of the accused from the case of the acquitted co-accused persons as the prosecution evidence with regard to the accused and with regard to his co-accused persons(both since acquitted) was similar---No reason was found to believe the statements of the witnesses with regard to the accused in absence of any reason to do so---Thus, the evidence of witnesses had no worth and deserved outright rejection---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013) PLD 2019 SC 527; Tariq v. The State 2017 SCMR 1672; Munir Ahmed and others v. The State and others 2019 SCMR 2006 and Safdar Abbas and others v. The State and others 2020 SCMR 219 rel.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Recovery of weapon of offence from the possession of accused---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---Record showed that a Kalashnikov rifle was recovered from the accused---Recovery of the Kalashnikov rifle from the accused could not be relied upon as the Investigating Officer of the case did not join any witness of the locality during the said recovery, which action of his was in clear violation of the provisions of the S. 103, Cr.P.C. and therefore the evidence of the recovery could not be used as incriminating evidence against the accused, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence---Moreover, according to the report of the Punjab Forensic Science Agency, the recovered Kalashnikov rifle was found in working condition, however, no comparison was made of the said Kalashnikov rifle with the empty shells of the bullets recovered from the place of occurrence, therefore, the report of the Forensic Science Agency, offered no proof of any relevant fact---Prosecution failed to prove the recovery of the Kalashnikov rifle from the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---Motive behind the occurrence was that accused "B" kidnapped a lady for committing zina and in that regard, deceased got lodged FIR against said accused, and due to said grudge, the accused persons committed the offence---Perusal of the statements of the eye-witnesses revealed that the accused was not related to the motive of the case at all---Moreover, abductee neither joined the investigation of the case nor the prosecution produced her before the Trial Court in support of the alleged motive---Prosecution witnesses did not even make an effort to provide any details regarding the connection of the accused with the motive---Failure of the various Investigating Officers of the case to join abductee in the investigation of the case reflected poorly on the prosecution case---Eye-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 committed the qatl-i-amd of the deceased---Evocative muteness was found in the prosecution case with regard to the motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(h) Criminal trial---

----Abscondence---Scope---Abscondence of an accused can be used as a corroborative piece of evidence, which can not be read in isolation but it has to be read along with the substantive piece of evidence.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707; Nizam Khan and 2 others v. The State 1984 SCMR 1092 and Rohtas Khan v. The State 2010 SCMR 566 rel.

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

----Ss. 302(b), 460 & 34---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, common intention---Appreciation of evidence---Medical evidence---Accused were charged for committing murder of the brother of the complainant by firing after trespassing the house during night---In the present case, only medical evidence was left to be considered with regard to the injuries observed on the dead body of the deceased by Medical Officer but the same was of no assistance in the case as medical evidence by its nature and character could not recognize a culprit in case of an unobserved incidence---As all the other pieces of evidence relied upon by the prosecution, in the case, had been disbelieved and discarded, therefore, the conviction of accused could not be upheld on the basis of medical evidence alone---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was allowed accordingly.

Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(j) Criminal trial---

----Benefit of doubt--- Principle--- Even if a single circumstance creating reasonable doubt in the mind of a prudent person is available, then such benefit is to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Manzoor Hussain Bhutta for Appellant.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Haji Muhammad Latif Khokhar for the Complainant.

2024 Y L R 145

[Lahore]

Before Asjad Javaid Ghural, J MUHAMMAD KASHIF and others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 205518 and Criminal Revision No. 205520 of 2108, decided on 28th October, 2022.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Promptness in lodging FIR---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Incident took place on 11.09.2015 at about 07:15 p.m., which was reported to the police promptly at 09:10 p.m. keeping in view the inter-se distance between the place of occurrence and the police station as 2½ kilometers---Promptness in lodging the crime report not only confirmed the presence of eye-witnesses at the spot but also excluded every hypothesis of deliberation, consultation and fabrication prior to the registration of the case---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)---

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence--- Ocular account supported by medical evidence---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Complainant and an eye-witness both were brothers of the deceased and deposed in unison the story of the occurrence as mentioned in the FIR---Injured deposed exactly in line with the eye-witness giving minute details of the incident and raised accusing fingers towards the accused persons deposing that accused made a fire with his pistol 30 bore upon him---Said witnesses were subjected to exhaustive cross-examination but they remained firm and consistent on all material aspects of the case qua the date, time and manner of the occurrence, names of the accused persons with their specific role and the weapons of offence used in the occurrence and the defence could not shatter their credibility in any eventuality---Medical Officer, medically examined the injured and observed two lacerated wound and two firearm injuries including an exit wound---Medical evidence was exactly in line with the ocular account and lent full support thereto---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Natural witnesses---Presence of witnesses at the spot proved---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Record showed that the crime report at the instance of complainant was registered promptly, which fact alone was sufficient to believe that the complainant was present at the spot---Had complainant been not present at the venue and time of occurrence, it was highly improbable for the prosecution to report the matter to the police station in such shortest possible time---Even otherwise, Investigating Officer, who prepared the scaled site plan denied the suggestion in his cross-examination qua non-availability of the complainant at the spot at the relevant time---In the given circumstances, mere omission for not mentioning the complainant's name in the site plan could not be considered as the sole reason to believe that he was not present at the spot at the relevant time---Injured sustained injuries during the occurrence at the hands of the accused persons and as such his presence at the place of occurrence at the relevant time could not be questioned in any manner---Injured categorically deposed against the accused persons before the Trial Court raising accusing finger towards none else but the accused persons being responsible for the murder in issue and also causing fire arm injuries to him---Said injured witness faced the test of cross-examination with full confidence and his sole statement in the facts and circumstances of the case was sufficient to bring home guilt of the accused persons---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Discrepancies in the statement of injured witness---Inconsequential---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Allegedly, injured stated during his cross-examination that he sustained two firearm injuries, whereas, testimony of injured witness showed that he received single injury on his person---However, the said witness, in his statement recorded under S. 161, Cr.P.C. before the police as well as examination-in-chief before the Trial Court simply deposed sustaining of single fire arm injury at the hands of accused---Incident took place in the month of September, 2015, whereas, evidence of said witness was recorded in March, 2018 i.e. after a delay of 31-months---Injured was subjected to grueling and taxing cross-examination---First and foremost impression which was gathered from the testimony of said witness was that he was a rustic witness---Such witness who was subjected to cross-examination at such a length was bound to get confused and make some inconsistent statement---In that backdrop, discrepancy pointed out by the defence could not be blown out of proportion---Basic principle of appreciating the evidence of a witness was that the Court should examine the statement of such a witness in its entirety and if the same rang truth any variation/deviation, which might have been occurred due to certain reasons, should be ignored---Discrepancy pointed out by the defence was not of such a vital nature, on the basis of which entire testimony of a star witness could be discarded---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Night time occurrence---Source of light---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Record showed that the occurrence took place on 11th of September, 2015 at 07:15 p.m. and normally during that time sun set occurs and at the most it is Maghrab prayer time, therefore, it was quite easy for the witnesses to identify the real culprits even without any artificial source of light---Furthermore, source of light i.e. electric bulb/tube light was well mentioned in the site plan and not taking the same into possession during investigation had no legal backing---Apart from that, the parties were previously known to each other and the incident took place in front of a milk-shop where generally the shopkeeper switched on lights prior to dawn of darkness and as such, the question of misidentification or non-identificationof the actual culprit was highly improbable---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Shamsher Ahmad and another v. The State and another 2022 SCMR 1931 rel.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of 18 to 24 hours in conducting postmortem upon the dead body of the deceased---Inconseqential---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Police Constable deposed in cross-examination that he escorted the dead body along with police papers to the hospital and reached there at about 9:15 p.m.---Similarly, identifier of the dead body deposed in cross-examination that they reached the hospital at about 9/9.30 p.m. but the doctor was not available---From the testimonies of these witnesses, it was established on record that the dead body of the deceased along with police papers was dispatched to the hospital within two hours---After dispatching the dead body to the hospital, the prosecution had fulfilled its duty and if due to non-availability of the doctor the post mortem examination was not conducted well in time, its benefit could not be extended to the defence---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Ghulam Rasool v. The State 2010 SCMR 1579 rel.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Motive behind the occurrence as ascribed by the prosecution was a quarrel that took place between accused and injured, a few days before the occurrence but neither any date, time and place of such occurrence was given nor any of the eye-witnesses claimed that such incident took place in his presence---Said matter was neither reported to the police nor any Panchyat was convened to resolve the same---In such circumstances, it was held that the motive, as set out by the prosecution, was nothing except the word of mouth---Appeal against conviction was dismissed.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of pistol on the instance of accused and crime empties from the spot---Inconsequential---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Investigating Officer transmitted pistols 30-bore allegedly recovered at the instance of the accused to the office of Forensic Science Agency for comparison with the crime empties already secured from the spot but no report from the said office was available on record---Both the parties were in unison on the point that according to the report of said office crime empties secured from the spot were not found wedded with the pistols shown to have been recovered at the instance of the accused---Said fact had also been observed by the Trial Court in its impugned judgment, therefore, it could safely be said that the recovery of weapons of offence from the accused remained inconsequential--- Appeal against conviction was dismissed.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Acquittal of co-accused on same set of evidence---Inconsequential---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---Record showed that the acquittal of co-accused persons had no bearing upon the fate of the accused for the reasons that their role was quite distinguishable because no injury was attributed to them on the person of the deceased or the injured witness---One of the co-accused persons was attributed the role of raising Lalkara whereas other co-accused was assigned the role of causing injury with his Danda but to whom he caused the said injury remained mysterious throughout the investigation and the trial---No blunt injury was found on the person of deceased, whereas, according to the opinion of Medical Officer two blunt injuries sustained by the injured could be a result of falling on hard and solid material---In the given circumstances, acquittal of co-accused, out of abundant caution did not adversely impact upon the prosecution case---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt---Appeal against conviction was dismissed accordingly.

Muhammad Rafique alias Neela and another v. The State and others 2020 SCMR 664 and Muhammad Sharif and others v. The State and others 2019 SCMR 1368 rel.

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

----Ss. 302(b), 324, 337-A(i), 337-F(iii), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, Shajjah-i-khafifah, ghayr-jaifah-hashimah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Sentence, reduction in--- Mitigating factors---Accused were charged for making firing upon the brother of complainant and others, due to which the brother of complainant died while one other person sustained fire arm injuries---As far as quantum of sentence awarded to accused "N" in offence under S. 324, P.P.C., was concerned, there were certain circumstances, such as his young age, acquittal of two co-accused and non-repetition of fire shot by him, which warranted lesser punishment under that Section---Statedly, the said accused had already served out more than three years of his substantive sentence, which was sufficient to meet the ends of justice---Circumstances established that the prosecution had proved its case against the said accused, however his appeal was dismissed with such modification in his sentence.

Tayyab Shakoor Rana for Appellants.

Zeeshan Ahmed Malik, Asim Riaz Rana and Moazzam Abbas for the Complainant.

Ms. Samra Irshad, Assistant District Public Prosecutor for the State.

2024 Y L R 161

[Lahore]

Before Ali Baqar Najafi, J

REHMAT ULLAH---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 47143-B of 2023, decided on 4th September, 2023.

Criminal Procedure Code (V of 1898)---

----S.497---Punjab Food Authority Act (XVI of 2011), Ss.22-A, 23, 24, 27 & 28---Substandard and injurious food stuff---Bail, grant of---Case of further inquiry---Accused was arrested for allegedly selling substandard meat injurious to human consumption---Validity--- Nature and degree of substandard meat and relevant standard, which was to be maintained by accused as shopkeeper, was not described anywhere---Accused placed in his file a certificate issued by Punjab Food Authority valid from 01.12.2022 to 30.11.2023---Date of occurrence was 05.07.2023 which was within the period stated in the certificate---Police file did not reflect any complaint lodged by any private person against accused for selling substandard meat---Out of 2500 Kgs. meat less than half was considered as harmful but question was on what grounds, the police investigation required further input---Report/Certificate of Veterinary Officer was not enclosed in police file---Offence did not fall within the prohibitory clause of S. 497, Cr.P.C.---Accused remained detained in judicial lockup for about two months---Bail was allowed in circumstances.

Nadeem Shibli for Petitioner.

Abdul Samad, APG with Mian Ijaz, ASI for the State.

2024 Y L R 201

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Sh. LIAQAT ALI and others---Petitioners

Versus

GHULAM AKBAR (deceased) through L.Rs. and others---Respondents

Civil Revision No. 87-D of 2005, decided on 22nd December, 2022.

Specific Relief Act (I of 1877)---

----Ss. 8 & 42---Suit for declaration and recovery of possession---Registered sale deed---Plea of fraud---Both the parties were claiming their title with possession in two different Khata numbers and khasra numbers with regard to same suit property---Stance of the petitioners was that respondents Nos.2 and 3 got the decree from Khata No.275, Khatuni No.352, Khasra No.52/40 measuring 16 Marlas from the Civil Court but got the possession of the property owned and possessed by the petitioners which was situated at Khata number 279/274, Khasra No.52/41 measuring 12 Marlas---Although, both the Courts below at one hand acknowledged ownership and possession of the petitioners over Khata No.279/274, Khasra No.52/41 but in the same breath denied their ownership and possession over the suit property---Respondents Nos. 2 and 3 instituted a suit for recovery of possession with regard to plot measuring 21 Marlas situated in Khasra No. 52/40, consisting of land measuring 02 kanals and 06 Marlas against Respondents Nos. 4 and 5---During the pendency of said suit, respondents Nos. 2 and 3 reached a compromise with Respondents Nos. 4 and 5 and on the basis of said compromise respondents Nos. 4 and 5 agreed to surrender the land measuring 16 Marlas and in that regard a map was prepared and produced before the Court as Exh. C.1---Evident from the record that petitioners were owner in possession of Khata No.279/274 bearing Khasra No.52/41 measuring 12 Marlas---Respondents Nos. 2 and 3 instituted the suit for recovery of plot according to map and shown points as Alif, Bay, Jeem and Daal---Said plot was mentioned in compromise deed as Exh.C.1.---Suit plot was quite different from the plot owned by petitioners---When written statement and report of bailiff was read in juxtaposition, it appeared that initially respondents Nos.2 and 3 got the possession of decreed suit plot and then forcibly snatched the possession of petitioners from his tenant---Petitioners proved their ownership and possession through volumed documentary evidence---However, it was the duty of respondents No.2 & 3 to bring on record that they got possession of the land as per compromise deed Exh.C.1 but after scanning of the evidence produced by the respondents it appeared that respondents badly failed to prove that they got the possession only of decreed land measuring 16 Marlas from Khata No.275, Khatuni No.352 bearing Khasra No.52/40 as per map (Exh.C.1)---Courts below were much impressed with the fact that respondents Nos. 4 and 5 were also owners of the land in Khasra No.52/41 but failed to consider that respondents Nos. 2 and 3 in their suit claimed possession from the Khasra No.52/40 and not from Khasra No.52/41---Said respondents were not entitled to get possession from Khasra No.52/41---Respondent No.1 failed to establish on record his lawful entitlement and possession over the suit property---Neither any title deed was present in his favour nor he proved on record that how he got the possession---Revision petition was allowed by setting aside the impugned judgments and decrees and suit instituted by the petitioner was decreed, in circumstances.

Abdul Rahman Khan Laskani and Sajjad Hussain Tangra for Petitioners.

Mahar Muhammad Tariq Mirali for Respondents Nos. 1-B to 1-G.

2024 Y L R 216

[Lahore]

Before Ch. Muhammad Iqbal, J

MUHAMMAD FAROOQ KHAN---Appellant

Versus

MUHAMMAD AKRAM KHAN and 2 others---Respondents

Civil Revision No. 2616 of 2013, heard on 22nd March, 2022.

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

----O. VI, R. 4---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Gift mutation, challenging of---Fraud, allegation of--- Proof---Particulars of allegation missing in the pleadings---Plaintiff (father) challenged gift mutation he made in favour of his own sons at the time of their minority---Trial Court dismissed the suit, which judgment was maintained by the Appellate Court---Validity---Donees being minors at the time of execution of gift-mutation could not commit fraud with their father (petitioner/plaintiff), as such, onus was upon the petitioner/plaintiff to firstly describe the detail particulars of the fraud and mis-representation in his pleadings (plaint) as required under R. 4 of O. VI of Civil Procedure Code, 1908, but perusal of the contents of plaint showed that such requisite particulars of fraud or any other ingredient (mis-representation, breach of trust, undue-influence) had not been described in the plaint which was non-compliance of said provision of law---Said flaw alone dismantled the very foundation of the assertions made in the plaint and any evidence led beyond the scope of pleadings garnered no intrinsic value, rather the same were ignorable---Mere contents of the pleadings, until proved through trustworthy believable corroborative primary evidence, could not be taken as a valid proof or otherwise of controversial fact---Petitioner/plaintiff also could not produce any concrete and unimpeachable evidence in support of the fraud, as such, he had failed to prove the allegation of fraud---It was hard to believe that donees/minors, at such tender age, could commit fraud with their father, thus assertion/allegation of the petitioner/plaintiff was not believable---No illegality or infirmity was noticed in the impugned judgments, dismissing the suit of the petitioner/ plaintiff---Revision was dismissed, in circumstances.

Mst. Sahib Noor v. Haji Ahmad 1988 SCMR 1703; Messrs Dadbhoy Cement Industries Ltd. and 6 others v. National Development Finance Corporation, Karachi PLD 2002 SC 500; Mst. Ashoo Bibi through Legal Heirs v. Gamon and 9 others 2014 MLD 635 and Sikandar Hayat and another v. Sughran Bibi and 6 others 2020 SCMR 214 ref.

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

----S. 42---Suit for declaration---Gift by father to his sons---Revocation of such gift sought on basis of fraud---Possession, delivery of---Plaintiff (father) challenged gift mutation he made in favour of his own sons at the time of their minority---Trial Court dismissed the suit, which judgment was maintained by the Appellate Court---Contention of the petitioner (plaintiff/ father) that possession was not handed over to the donees (sons)---Validity---Para 167(4) of Muhammadan Law stipulated as "once possession is delivered, nothing short of a decree of the Court is sufficient to revoke the gift---Neither a declaration of revocation by the donor nor even the institution of a suit for resuming the gift is sufficient to revoke the gift---Until a decree is passed, the done is entitled to use and dispose of the subject of the gift"---As per Para 155 of Muhammadan law, no transfer of possession was required in the case of a gift by a father to his minor child or by a guardian to his ward; and possession of father was the possession of the minors---No illegality or infirmity was noticed in the impugned judgments, dismissing the suit of the petitioner/plaintiff---Revision was dismissed, in circumstances.

Mst. Kaneez Bibi and another v. Sher Muhammad and 2 others PLD 1991 SC 466; Bahadur Khan v. Mst. Niamat Khatoon and another 1987 SCMR 1492 and Abid Hussain and others v. Muhammad Yousaf and others PLD 2022 SC 395 ref.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Gift mutation, challenging of--- Fraud, allegation of--- Limitation--- Unexplained delay---Plaintiff (father) challenged gift mutation he made in favour of his own sons at the time of their minority---Trial Court dismissed the suit, which judgment was maintained by the Appellate Court---Held, that the petitioner/plaintiff had challenged the validity of gift-mutation in a suit for declaration which was instituted after lapse of more than thirteen (13) years, whereas under Art. 120 of the Limitation Act, 1908, the maximum period for filing such suit was six years, as such present suit was miserably time-barred---No convincing reason had been furnished for delayed filing of the suit, thus the non-furnishing of the explanation disentitled the suitor for condonation of delay whereas the suitor was under legal obligation to explain the delay of each and every day but no such requisite/ convincing reasons had been furnished in said regard---No illegality or infirmity was noticed in the impugned judgments, dismissing the suit of the petitioner/ plaintiff---Revision was dismissed, in circumstances.

Agha Syed Mustaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910 ref.

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

----S. 115--- Concurrent findings---Revisional jurisdiction of the High Court---Scope---Concurrent findings of fact did not call for any interference by the High Court in exercise of its revisional jurisdiction in absence of any illegality or material irregularity, mis-reading and non-reading of evidence or error of jurisdiction.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 ref.

Malik Muhammad Arshad Kundi for Petitioner.

Rana Muhammad Aqeel Nasir and Ch. Zaheer Zulfiqar for Respondents.

2024 Y L R 238

[Lahore]

Before Abid Aziz Sheikh, J

Dr. ZAHID HUSSAIN ZAHID---Petitioner

Versus

EXECUTIVE DIRECTOR, IMPERIAL COLLEGE OF BUSINESS STUDIES, LAHORE and 3 others---Respondents

Writ Petition No. 28301 of 2021, heard on 21st March, 2022.

Imperial College of Business Studies, Lahore, Ordinance (XIX of 2002)---

----Ss. 8, 9, 10, 12 & 15---Constitution of Pakistan, Art.199(1)(a)---Constitutional petition filed against Imperial College of Business Studies--- Maintainability---Person or authority performing function in connection with the affairs of an educational institution---Petitioner was employee of Imperial College of Business Studies and sought release of his unpaid salary---As per S. 10 of the Imperial College of Business Studies, Lahore, Ordinance, 2002 (Ordinance), the administration and management of affairs of Imperial College shall vest in the Board of Governors (Board)---Section 8 of the Ordinance provided that Board shall consist of various individuals including Members of the Board of Trustees---Though some Government Officials were also members of the Board but majority members of the Board were private individuals, hence Government did not have complete domination in running the affairs of Imperial College---Under S. 12 of the Ordinance, all appointments as well as terms and conditions of such appointments were determined by the Board and not by the Government---As per S. 15 of the Ordinance, there shall a fund to be known as the Imperial College of Business Studies Fund which shall vest in the institution---Said funds were admittedly generated from private sources including fee etc. and Government had no direct financial control over Imperial College---As per S. 6 of the Ordinance, Governor of Punjab shall be the patron of the institution---Patron was only a notional head and did not take any administrative or financial decisions with respect to Imperial College, which were vested with the Board consisting of majority of private individuals---Considering the above factors, there was no manner of doubt that Imperial College was a private institute and not a person performing functions in connections with the affairs of the Federation, Province or Local Authority for the purpose of judicial review under Art. 199 of the Constitution---Mere fact that Imperial College had been established under the Ordinance, would itself not be sufficient to treat it as a "person" for the purpose of Art. 199(5) of the Constitution---Constitutional petition was dismissed being not maintainable.

Zafar Mahmood Malik v. Water Management Specialist and others 2005 PLC (C.S,) 04; Secretary Education and others v. Tariq Mehmood, PTC Teacher 2005 PLC (C.S.) 851; Razia Saleemi v. Medical Superintendent, Nishter Hospital and others 2005 PLC (C.S.) 1365 and Muhammad Rafi and others v. Federation of Pakistan and others 2016 SCMR 2146 ref.

Abdul Wahad and others v. HBL and others 2013 SCMR 1383; Anoosha Shaigan v. Lahore University of Management Sciences and others PLD 2007 Lah. 568; Syed Iqbal Hussain Shah Gillani v. Pakistan Bar Council through Secretary Supreme Court Bar Building, Islamabad 2021 SCMR 425; Aown Abbas Bhatti v. Forman Christian College and others PLD 2018 Lah. 435; Malik Naz v. Board of Governors and others 2017 CLC 256 and Zahid Hussain v. The Chairman Selection Committee and others 2017 CLC 426 rel.

Syed Hamid Raza Bukhari for Petitioner.

Muhammad Riaz for Respondents.

2024 Y L R 251

[Lahore]

Before Shahid Bilal Hassan, J

Mian JAVED AKHTAR and another---Appellants

Versus

Rana MUHAMMAD ISMAIL and others---Respondents

R.S.A. No. 37 of 2017, decided on 23rd December, 2022.

Specific Relief Act (I of 1877)---

----Ss. 42, 8 & 54---Civil Procedure Code (V of 1908), O. I, R. 10---Suit for declaration, possession and permanent injunction--- Non-impleadment of defendant---Plaintiff filed suit for declaration, possession and permanent injunction contending therein that he being owner in possession of disputed land appointed respondent No.6 as his attorney but he committed fraud and transferred the land in favour of respondent No.2 through sale mutation---Suit of the plaintiff was decreed while the appeal was dismissed by the appellate Court---Validity---Admittedly, the present appellants became owner of the disputed property vide a sale mutation attested on 10.12.2005, whereas the suit was instituted, obviously, without impleading them as party and challenging the said mutation in their favour, by the respondent No.1 on 17.12.2005 and even during pendency of the suit, the respondent No.1/plaintiff did not bother to implead them in the array of defendants by moving an application under O. I, R. 10, C.P.C. and decree dated 06.03.2013 was passed---However, in that respect, it was observed that the appellants had remedies to file application under S. 12(2), C.P.C., or to assail the judgment and decree by preferring an appeal---Appellants, having been adversely affected, opted to challenge the decree by filing an appeal, which was maintainable---Pursuant to the above, the impugned judgments and decrees being contrary to law were open to examination in exercise of jurisdiction under S. 100 of the C.P.C.; therefore, the same could not be allowed to hold field further, because one should not be condemned unheard and every litigant should be provided with fair opportunity to present and defend his/her case---Appeal was allowed by setting aside impugned judgment and decree and case was remanded to the Trial Court with the direction to implead the appellants in the array of the defendants by obtaining amended plaint from the plaintiff and after submission of written statements by them and to proceed with the case further accordingly.

H.M. Saya & Co., Karachi v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65; and Sahib Dad v. Province of Punjab and others 2009 SCMR 385 and Jamila Pirzada and 3 others v. Col. (R) Mansoor Akbar and 2 others 2011 CLC 1619 rel.

Mahmood Ahmad Bhatti for Appellants.

Malik Nasim Akhtar Awan for Respondents.

2024 Y L R 265

[Lahore]

Before Safdar Saleem Shahid, J

BABAR RASOOL through Special Attorney---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, SARGODHA and 2 others---Respondents

Writ Petition No. 23372 of 2020, heard on 9th February, 2022.

Family Courts Act (XXXV of 1964)---

----S. 5, Sched.---Suit for recovery of maintenance allowance and dowry articles---Respondent/wife alleged that she was given valuable dowry articles at the time of marriage with petitioner; he proceeded abroad to earn his livelihood and since then neither he came back nor paid any maintenance allowance---Father of the petitioner turned her out from his house---Petitioner was earning Rs. 2,50,000/- per month---Trial Court partially decreed the suit in terms that respondent was held entitled to recover maintenance allowance at the rate of Rs. 6000/- per month till the expiry of her iddat and to recover the dowry articles as per list in addition to price of bed of Rs. 30,000/- from the petitioner---In appeal, maintenance allowance was enhanced to Rs. 12,000/- per month and she was held entitled to receive the dowry articles or alternate price thereof, excluding some articles---Validity---According to respondent, monthly salary of the petitioner was of 3525 UAE Dirham in addition to earnings by overtime---In support of her claim, respondent produced salary slip of the petitioner which showed that he was Associate Electrical Engineer and was drawing monthly salary 3525 Dirham---On the other hand, petitioner produced his salary slip dated 8th April, 2019, which showed his salary as 1732 Dirham excluding allowances---It appeared that allowances had deliberately been excluded by petitioner to conceal his actual salary, which, if calculated in Pakistani currency, became more than one hundred thousand rupees---Keeping in view the financial status of the petitioner and that there was no categorical denial regarding period of desertion of respondent, the Appellate Court had rightly enhanced her maintenance allowance from Rs.6000/- to Rs.12,000/- per month---As regards decree for recovery of dowry articles, petitioner relied on a USB containing pictures to establish that dowry articles had been returned---Despite having accepted in evidence USB produced by the petitioner, both the Courts had only made reference to the same and had not discussed as to whether it was played and confronted to the witnesses to reach at a definite conclusion regarding the dowry articles given to respondent by her parents---Even otherwise, no purpose to produce a video or audio would be served if it was not played and confronted to the witnesses---With reference to the provisions of Art. 164 of the Qanun-e-Shahadat, 1984, screening of video cassette was admissible in evidence and also conclusive in some cases---Court below had failed to properly record the evidence and appreciate the same while deciding the suit filed by respondent---In conclusion Appellate Court had correctly appreciated the evidence with regard to financial status of the petitioner and rightly enhanced the rate of maintenance allowance of respondent by setting aside the findings of the Trial Court to that effect---However, the Trial Court while recording evidence of the parties had accepted the USB produced by the petitioner, but neither had confronted the same to the witnesses nor discussed having viewed the same by playing it---Appellate Court also did not appreciate the evidence with regard to production, acceptance and playing of USB to view the pictures---In the circumstances, the findings of the Courts below with regard to recovery of dowry articles were not in accordance with law and were liable to be set aside---Constitutional petition was partly allowed by setting aside the judgments and decrees of both the Courts below to the extent of recovery of dowry articles and the case was remanded to the Trial Court for decision afresh, after confronting the witnesses with the USB produced by the petitioner and recording their evidence to that effect in addition to any other necessary evidence.

Shahid Orakzai v. Pakistan Muslim League (Nawaz Group) and 8 others 2000 SCMR 1969; Collector of Customs and another v. Saeed-ur-Rehman and others PLD 1989 SC 249 and Yasir Ayyaz and others v. The State PLD 2019 Lah. 366 rel.

Mushtaq Mehdi Akhtar for Petitioner.

Anwaar ul Haq Khokhar for Respondent No. 3.

2024 Y L R 270

[Lahore (Bahawalpur Bench)]

Before Malik Shahzad Ahmad Khan and Tariq Saleem Sheikh, JJ

MUHAMMAD ANWAR and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 52/BWP, 80/BWP and Murder Reference No. 4 of 2014, hearad on 26th April, 2018.

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

----Ss. 302(b), 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, abetment, common intention---Appreciation of evidence--- Dying declaration--- Doubtful--- Accused were charged for committing murder of the deceased by firing due to previous enmity---Record showed that injured then deceased was taken to hospital, where Investigating Officer reached there on receiving information about the incident and after seeking permission from the Medical Officer, recorded his statement---Medical Officer certified that victim was fit whereupon he recorded his statement which was attested by the said Medical Officer and two witnesses---Occurrence took place at 06.15 a.m. and injured then deceased was brought to the hospital at 06.30 a.m. and his statement was recorded at 08.10 a.m.---Keeping in view the fact victim had suffered multiple injuries it could reasonably be presumed that he was expecting his death at that time---Said statement of victim could be regarded as dying declaration which was admissible in evidence under Art. 46 of Qanun-e-Shahadat, 1984--- However, perusal of statement of victim showed that he gave photographic details of the incident---It was not possible for the victim to make such a narration in his given condition---Victim was surrounded by two witnesses---Record did not indicate that necessary steps were taken to keep him out of their influence at the time of making the declaration---Said facts made the dying declaration all the more dubious and it could not be relied upon---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

Abdul Razik v. The State PLD 1965 SC 151; Farman Bi v. Ghulam Farid and others 1994 SCMR 1852; Mst. Zahida Bibi v. The State PLD 2006 SC 255; Farman Ahmed v. Muhammad Inayat and others 2007 SCMR 1825; Tahir Khan v. The State 2011 SCMR 646; Muhammad Banaras v. Shah Fakhar Zaman and others 1985 SCMR 505; Mst. Khurshid Begum and 2 others. v. Tariq and others 1988 SCMR 1537; Farman Bi v. Ghulam Farid and others 1994 SCMR 1852; Basharat Ali v. Muhammad Safdar and another 2017 SCMR 1601 and Muhammad Anwar v. The State PLD 1984 Lah. 132 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Presence of eye-witnesses at the time and place of occurrence not proved--- Chance witnesses---Accused were charged for committing murder of the deceased by firing due to previous enmity---Ocular account of the incident had been furnished by two witnesses to prove the charge---Both of the said witnesses reiterated the contents of the FIR, however, their testimony did not inspire confidence---Notably both the said eye-witnesses were not residents of the place where the incident happened---In order to justify his presence, one of the eye-witness stated in his examination-in-chief that he was brother of deceased and on day of occurrence at about 06:15 a.m. he was present in his house and came out on hearing noise and saw the occurrence but in cross-examination he conceded that he was not his brother---Noteworthy that when said eye-witness conceded that he was not the brother of deceased he himself falsified the reason that he had advanced for his presence at the spot---In the site plans the house of said witness had not been shown---Other eye-witness during his cross-examination conceded that his house was situated in a colony which was at a distance of one kilometer from the crime scene---In such circumstances, both the eye-witnesses were chance witnesses and their evidence required independent corroboration which was very much lacking in this case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

Mst. Anwar Begum v. Akhtar Hussain alias Kaka and 2 others 2017 SCMR 1710; Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142; Khalid Javed and another v. The State 2003 SCMR 1419 and Zafar Hayat v. The State 1995 SCMR 896 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Ocular account and medical evidence---Contradictions---Accused were charged for committing murder of the deceased by firing due to previous enmity---Record showed that the evidence of eye-witnesses was contradicted by the medical evidence---As per contents of the application, on the basis of which formal FIR was lodged, fire shot made by accused landed on the right side of the waist of deceased whereas both the eye-witnesses stated that the fire shot made by accused landed on the right side of the back of deceased---According to the evidence of Medical Officer, who initially medically examined deceased in injured condition, there was one injury on the back of the chest of the deceased and in his cross-examination he stated that he could not specify the nature of the said injury as to whether the same was an entry or exit wound---On the other hand, according to the statement of Medical Officer who conducted postmortem examination and as per pictorial diagrams, there was no injury on the waist or on the back side of the waist of deceased and there was only one injury on his right upper back region which was skin deep---Co-accused was assigned the role of making a fire shot on the right leg of deceased---Although Medical Officer noted injury on the right knee of deceased, in his cross-examination he also stated regarding the said injury that he could not specify whether said injury was an entry wound or exit wound, though he specifically mentioned that three injuries were entry wounds---As per evidence of Medical Officer, there were perforated wounds on the posterior aspect of the right shoulder of deceased---Another entry wound on the chest of the deceased was found---Said injuries were also noted in the postmortem examination report of the deceased by Medical Officer but the said injuries were not attributed to any of the accused in this case---Moreover, there were a total of three (or seven injuries) on the right leg of deceased whereas according to the evidence of witnesses only one fire shot with pistol .30 bore was made by co-accused on the right leg of deceased---Prosecution eye-witnesses had not mentioned two injuries on the chest and two injuries (or six injuries) on the right leg of deceased which were noted in the postmortem report of the deceased and pictorial diagram---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ali v. The State 2015 SCMR 137; Irfan Ali v. The State 2015 SCMR 840 and Usman alias Kaloo v. The State 2017 SCMR 622 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of crime empties and weapon of offence---Inconsequential---Accused were charged for committing murder of the deceased by firing due to previous enmity---Investigation Officer recovered two crime empties of .12 bore gun and two of .30 bore gun from the place of occurrence and secured the same vide Recovery Memo--- During the course of investigation, accused made disclosure and while on physical remand got recovered pump-action gun along with cartridges after digging earth near a tube well situated on the canal which was taken into possession vide Recovery Memo---Crime empties and the weapon of offence were sent to the Forensic Science Agency---According to the Forensic Report, the parcel sent contained one 12G pump action having serial number obliterated, along with its item number, duly signed---Report further stated that it was said to be recovered from some person "B"---Thus, it was evident that the parcel sent did not contain the gun allegedly recovered from accused---Said weapon was never sent to the Forensic Science Agency---Positive report qua 12G pump-action shot gun was, therefore, inconsequential---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of the deceased by firing due to previous enmity---Prosecution did not allege any direct motive against accused---As per prosecution case, two other accused persons were involved in the murder of paternal uncle of deceased---Said accused had absconded and wanted to eliminate deceased because he was pursuing the case---Said accused persons hired accused and a juvenile co-accused and another accused for such purpose---In order to prove the said motive, the prosecution produced two witnesses who testified that one day prior to the fateful day at around Asar prayer time they were taking tea at a hotel when accused/ proclaimed offender and other accused persons came there---Said proclaimed offender and accused in their presence asked other accused and his co-accused to kill deceased and they would pay them---Said piece of evidence was false and concocted---To start with, it did not appeal to a prudent mind that so many people would assemble at a public place to hatch a conspiracy for murder---Secondly, witnesses claimed that they informed deceased about the conspiracy on the same day; if that was so deceased would have mentioned it in his statement--- Thirdly, the said two witnesses did not state that any money was paid by proclaimed offender to the accused or his co-accused in his presence---Even otherwise, there was no evidence to prove that any money was paid to the accused and his co-accused for the murder of the deceased and no such money was recovered from their possession during investigation of the case---Lastly, witnesses got recorded their statements under S. 161, Cr.P.C., three days after the incident for which there was no explanation---Such delay impinged on the credibility of the witness---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of any doubt---Appeal against conviction was allowed, in circumstances.

Syed Saeed Muhammad Shah and another v. The State 1993 SCMR 550; Abdul Khaliq v. The State 1996 SCMR 1553 and Muhammad Khan v. Maula Bakhsh and another 1998 SCMR 570 rel.

Syed Zeeshan Haider for Appellant.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Sadiq Mehmood Khurram for the Complainant.

2024 Y L R 298

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

Haji ARSHAD MEHMOOD---Petitioner

Versus

FARRUKH IMTIAZ KHOKHAR and another---Respondents

Criminal Miscellaneous No. 2759-CB of 2022, decided on 11th January, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 302, 109, 114, 148 & 149---Qatl-i-amd, abetment, abettor present when offence was committed, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, cancellation of---Respondent (accused), as was evident from record, was not ascribed the role of actively participating in the murder incident but was saddled with the allegation of having abetted the crime---Material collected by the police, prima facie, connected respondent with the commission of crime for the limited purposes of instant petition for cancellation of bail---Impugned order, upon its perusal, was found to be in eternal silence regarding the existence of some mala fide or sinister design behind the implication of accused/respondent in the case which was sine qua non for extending the extra ordinary concession of pre-arrest bail to an accused, more importantly if some material to connect him with the commission of crime was available on record---Existence of mala fide for falsely implicating an innocent person in the case could be gathered from circumstances and even by the documentary evidence--- Pre-existing rivalry or enmity of a long or short duration, personal vengeance or grudge out of some financial, political or severe family rift gives clue about the possible mala fide or sinister design behind the false implication of an innocent person in the case---After having perused the record of present case with utmost circumspection, nothing as such was found emerging, which might give traces of some mala fide against the respondent---Even otherwise, if at all the family of deceased had some personal axe to grind with respondent, he would have been named in the crime report at the very inception of the case---Offences of abetment and criminal conspiracy hailed from the genesis of the crime, wherein collection of direct evidence was nothing less than a hard nut to crack---Abetment is always correlated with the main crime, whereas criminal conspiracy is an independent offence and in both of them the delinquents make sure to maintain secrecy---Culpability of accused in reference to the charge of abetment and criminal conspiracy is to be assessed from the attending circumstances through a pragmatic and dynamic approach---Another factor persuading the Court to interfere with the bail granting order pertained to the expected recovery of SIM which statedly was used by the accused/respondent for remaining in contact with the actual participants of the murder incident---Respondent had criminal antecedents of involvement in fourteen other cases of various nature including homicide, terrorism etc.---In such circumstances, it would be a fallacious approach to maintain the bail granted to respondent by putting a deaf ear response to the facts of the case and settled law laid down on the subject of pre-arrest bail--- Pre-arrest bail granted to the respondent was recalled, in circumstances.

Mir Muhammad and others v. National Accountability Bureau through Chairman and others 2020 SCMR 168; Muhammad Sadiq and others v. The State and another 2015 SCMR 1394; Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Wajid Ali v. Mumtaz Ali Khan and others 2000 MLD 1172; Mst. Hanifan Bibi and another v. Zulfiqar and another PLD 2001 Lah. 123; Nazeer Ahmad v. Abdul Rashid Chatha and another 2004 YLR 3146 and Sarwar Sultan v. The State and another PLD 1994 SC 133 rel.

Fakhar Hayat Awan, Abrar Ahmed and Salah-ud-Din for Petitioner.

Malik Waheed Anjum with Respondent No.1.

2024 Y L R 363

[Lahore]

Before Tariq Saleem Sheikh, J

ASGHAR---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 9150-B of 2023, decided on 8th March, 2023.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(v), 337-L(2), 148 & 149---Ghayr-jaifah-hushimah, offer limit, rioting armed with deadly weapons, unlawful assembly---Ad-interim pre-arrest bail, confirmation of---Cross version case---Further inquiry---Record showed that the complainant lodged the FIR with a delay of four days for which he had not furnished any explanation---Said delay indicated consultation and deliberation on the part of complainant---Accused had lodged a cross-version claiming that the complainant and his companions were the aggressors---Fact that in the FIR the complainant had suppressed the injuries received by the other side which showed that it did not contain the whole truth---Said fact would be determined at the trial after recording evidence as to which party was the aggressor---Hence, further inquiry was required to determine the guilt of the accused---Ad-interim pre-arrest bail already granted to the accused was confirmed, in circumstances.

Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845 and Muhammad Ramzan v. The State and others 2016 SCMR 2046 rel.

Amjad Qayyum Baloch with the Petitioner.

Muhammad Mustafa Ch., D.P.G. for the State with Munawar ASI.

2024 Y L R 372

[Lahore]

Before Malik Shahzad Ahmad Khan, J

LIAQAT ALI alias BAO---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 78954-J of 2019 and Criminal Revision No. 15587 of 2020, heard on 30th May, 2023.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing loss or damage to the amount of fifty rupees or upwards, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses--- Non-availability of justification for the presence of eye-witnesses at the spot---Accused was charged for committing murder of the deceased by firing---Ocular account of the occurrence had been furnished by complainant and another eye-witness---Both the eye-witnesses were not residents of the village where the occurrence took place---Site plan showed that the occurrence took place at a road in a deserted area---On both sides of the road, there were agricultural fields and no residential house, shop, bus stop, petrol pump or any other building had been shown at the spot---Both the eye-witnesses simply stated in their statements before the police, as well as, in their statements recorded by the Trial Court that on the day of occurrence, they along with deceased were returning back from Mandi upon a motorcycle 'rikshaw' after sale purchase---Said witnesses did not state the specific reason of their visit to Mandi on the day of occurrence---Although during their cross-examination, said witnesses stated that they went to Mandi to purchase ghee, sugar and some grocery but it was noteworthy that no receipt regarding the purchase of any grocery items was produced during the investigation of the case before the Investigating Officer or during the recording of prosecution evidence by the Trial Court---Both the eye-witnesses made an excuse that in fact, items purchased by them along with 'rikshaw', driven by deceased at the time of occurrence, were burnt during the occurrence on account of firing of the accused persons but it was noteworthy that in the FIR there was no such allegation that 'rikshaw' of the complainant party caught fire at the time of occurrence---Since, both the eye- witnesses were not residents of the village where the occurrence took place rather they were residents of another Chak, therefore, they were chance witnesses and they could not prove the reason of their presence at the spot at the relevant time, therefore it was not safe to rely upon their evidence for upholding the conviction and sentence of the accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing loss or damage to the amount of fifty rupees or upwards, common intention---Appreciation of evidence---Benefit of doubt---Delay of ten hours in conducting the postmortem upon the dead body of the deceased---Consequential---Accused was charged for committing murder of the deceased by firing---Although as per contents of the FIR, the occurrence took place on 26.07.2016 at 08:30 a.m., and the FIR was lodged on the same day at 09:35 a.m., but it was noteworthy that postmortem examination on the dead body of deceased was conducted on 26.07.2016 at 06:30 p.m., i.e., with the delay of 10 hours from the occurrence---Medical Officer, who conducted the postmortem on the dead body of deceased, stated that dead body was received in the dead house on 26.07.2016 at 06:00 p.m., whereas, police papers were received on the same day at 06:30 p.m., which showed that there was no delay on the part of the Medical Officer in conducting the postmortem examination on the dead body of deceased---Delay in conducting the postmortem examination on the dead body of the deceased was suggestive of the fact that the occurrence was unseen and the said delay was consumed in procuring the attendance of fake eye-witnesses---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Zafar v. The State and others 2018 SCMR 326 and Muhammad Ashraf v. The State 2012 SCMR 419 rel.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing loss or damage to the amount of fifty rupees or upwards, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the deceased by firing---Motive behind the occurrence was that earlier accused made fire shots upon complainant due to which FIR under section 324, P.P.C., was lodged and the accused was pressurizing for compromise in the said case and on account of the said grudge, the occurrence of the present case took place---Under such circumstances, either complainant or eye-witness should have been the prime target of accused but both of them did not receive even a single scratch on their bodies during the occurrence, though according to the prosecution case, accused and co-accused (since P.O.) were armed with pistols and complainant and eye-witness were at their mercy---As per site plan said witnesses were sitting in the 'rikshaw' on the left and right side of deceased---Prosecution story did not appeal to a prudent mind because if the said motive was against complainant or against eye-witness, then question was as to why the said witnesses were spared alive and in their place deceased was murdered, meaning thereby that the said witnesses were not present at the spot at the relevant time---Although said prosecution eye-witnesses tried to justify the motive by stating that in fact, deceased was pursuing earlier case lodged against the accused but the FIR statedly lodged by the complainant party against the accused or order sheet of the Trial Court in the said case was never brought on the record during the trial of present case to establish that deceased was a complainant or a witness or he was pursuing the case---Thus, motive as alleged by the prosecution had not been proved in the case and even on the basis of said motive, the prosecution case was highly doubtful---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

Muhammad Zaman Mangat v. Muhammad Akhtar and others 2004 SCMR 757; Saleem Khan v. The State and others 2021 SCMR 1472 and Rohtas Khan v. The State 2010 SCMR 566 rel.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing loss or damage to the amount of fifty rupees or upwards, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence---No specific injury assigned to accused---Accused was charged for committing murder of the deceased by firing---Record showed that no specific injury on the body of deceased was assigned to the accused or his co-accused and a general role was attributed to the accused and his co-accused that the fire shots made by them landed on the different parts of the body of deceased---Said fact also indicated that the prosecution eye-witnesses were not present at the time of occurrence therefore, they could not assign any specific injury to any accused---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b), 427 & 34---Qatl-i-amd, mischief causing loss or damage to the amount of fifty rupees or upwards, common intention--- Appreciation of evidence---Benefit of doubt---Recovery of pistol on the pointation of the accused---Inconsequential---Accused was charged for committing murder of the deceased by firing---Record showed that pistol 30 bore was recovered on the pointation of the accused---Noteworthy that report of Forensic Science Agency in that respect was in the negative and as such, the same was inconsequential for the prosecution case--- Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal against conviction was accordingly allowed.

(f) Criminal trial---

----Benefit of doubt---Principle---Single circumstance which creates 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.

Ch. Imtiaz Hussain Bhatti and Syed Hassan Mehdi Rizvi (defence counsel) for Appellant.

Ms. Asiya Yasin, Deputy District Public Prosecutor for the State.

Rana Wazir Ali for the Complainant.

2024 Y L R 397

[Lahore (Multan Bench)]

Before Sohail Nasir, J

ABDUL JABBAR---Petitioner

Versus

The STATE---Respondent

Criminal Appeal No. 1229 of 2017, heard on 7th February, 2022.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Chance witnesses--- Non-availability of the justification for the presence of eye-witnesses at the spot---Accused was charged for committing murder of the sister of the complainant and her daughter by firing---Record showed that the brother and son of the deceased being eye-witnesses furnished ocular account of the incident---Complainant was the real brother of deceased but he was not the resident of the house or locality where deceased was residing---Complainant in cross-examination, admitted that his house was at a distance of about 4/5 kilometers from crime scene and that he was a laborer---Similarly other eye-witness although was the real son of deceased but he too was not residing in the house with her mother---Said witness was residing and running his shop which was at a distance of one kilometer from crime venue---Both the said witnesses in view of said circumstances were chance witnesses---Chance witness was a person who under ordinary circumstances was not supposed to be present at a place where he claimed but he had to be at his ordinary place of residence or work---Thus, when a chance witness claimed his presence at a particular site he was always under heavy obligation to show any specific reason to establish his availability at the stated place---In failure to offer any good reason such witness remained of no worth for prosecution---In the FIR, it was stated by complainant that eye-witness told him that few days earlier accused came to the house of deceased and forced her for Nikah and for that reason, on the day of occurrence he and eye-witness were sitting in the house of deceased---Surprisingly, those words never came out from the mouths of witnesses during their examination-in-chief---Contents of FIR were not the final words and could not substitute the evidence---Unless said contents were proved by maker while appearing in court, no value could be attached thereto---As both the eye-witnesses completely failed to disclose any reason for their presence in the house of deceased, therefore, on that score alone their credibility had lost the value and importance---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against the accused---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Unnatural conduct of eye-witness---Accused was charged for committing murder of the sister of the complainant and her daughter by firing---Eye-witness was aged about 28 years at the time of occurrence---In the presence of real son who was young, the accused who was aged about 44 years came and committed the murder of his real mother but the witness made no attempt to interfere or intercept---No doubt that accused had a 12-bore pump action gun but at the same time the target for him was the real mother of eye-witness, so in that situation it could not be expected from real son to prefer the death of his real mother for saving his own life---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against the accused---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of nine hours and forty five minutes in conducting the postmortem examination upon the dead body of the deceased not explained---Accused was charged for committing murder of the sister of the complainant and her daughter by firing---Record showed that both the dead bodies were in hospital at least by 09:00 am.---Medical Officer categorically maintained that she conducted the post mortem examinations on the same day at 06:45 pm.---In cross-examination, said witness replied that she proceeded for post mortem examination immediately when she received the dead bodies---If the dead bodies were in hospital at 09:00 a.m. then why the postmortem was conducted after about 10 hours that was 06:45 p.m. and why the Medical Officer said that she received the dead bodies at that time also---Delayed post mortem examination had always been considered as vital blow on prosecution's case as it created serious doubt about worth and veracity of presence of the witnesses---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against the accused---Appeal against 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---Benefit of doubt---Evidence of best witness not recorded---Effect---Accused was charged for committing murder of the sister of the complainant and her daughter by firing---Record showed that the deceased ladies were living in a portion of the house of Mr. "E"---Investigating Officer, although in the cross-examination, replied that he joined said Mr. "E" in the investigation but admittedly no statement of him under S. 161, Cr.P.C., was recorded---Not examining him by the Investigating Officer amounted to withhold the best available evidence therefore an adverse inference could be safely drawn against the prosecution---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against the accused---Appeal against conviction was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Absconsion of the accused---Inconsequential---Accused was charged for committing murder of the sister of the complainant and her daughter by firing---Absconsion of the accused spread over about fourteen years---However, absconding could not be viewed as a proof for the crime---People stayed away from law for a variety of reasons not necessarily compatible with hypothesis of guilt, to avoid impending wrath of opponents in hostile environment---Absconding could not be made sole basis for conviction of accused when the other prosecution evidence was doubtful and riddled with contradictions---Absconding was never sufficient by itself to prove the guilt---Circumstances established that the prosecution had failed to prove its case beyond reasonable doubt against the accused---Appeal against conviction was accordingly allowed.

Prince Rehan Iftikhar Sheikh for Petitioner.

Muhammad Laeeq ur Rehman, Assistant District Public Prosecutor for the State.

2024 Y L R 410

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

MANZOOR AHMAD and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 44496-J, 37914 and Murder Reference No. 129 of 2019, heard on 13th March, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Delay of one hour and fifty minutes in reporting the matter to the police---Consequential---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Motive behind the occurrence was that the accused had a suspicion that the complainant party had facilitated and helped the elopement of the daughter of accused and due to that grudge, the accused had murdered the deceased---Record showed that the occurrence took place on 18.11.2017 at 10.40 p.m. in the Dera/cattle shed of complainant situated at a distance of ten kilometers only from the place of occurrence---First Information Report was registered on the oral statement of the complainant, on 19.11.2017 at 12.50 a.m.---However, it was clear from the Fard Bayan that the statement of the complainant was recorded by Police Officer at 12:30 a.m.---Complainant took one hour and fifty minutes to report the incident to the police, for which no plausible explanation was rendered---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction 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 spot was not proved---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Record showed that in the inquest report the names of complainant and eye-witnesses had not been mentioned---Eye-witnesses or the complainant did not sign the inquest report---However, the Investigating Officer had categorically asserted that he recorded statements of witnesses under S. 161, Cr.P.C., at the spot, which allegedly showed that witnesses were present at the place of occurrence---If Investigating Officer visited and prepared the inquest report and had met with the complainant and eye-witnesses, in that case, there was no reason why the details were found missing from the inquest report---Absence of those details indicated that the prosecution story was still in the embryo and had not been given any shape---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Confliction---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Record showed that in the scaled site plans, place of firing was shown at points "2 and 3," and the deceased, was shown at point "1"---Distance between Point "1" and Points "2 and 3" was 12 and 6 feet, respectively; however from such a distance, blackening was impossible---In the un-scaled site plan, the distance between point "1" and point "3" was not mentioned---Medical Officer, who conducted autopsy on the body of the deceased, observed blackening on injury No. 1---Blackening and recovery of pellets from the wound and the seats of injuries showed that deceased sustained the fire shot injuries on the vital part of his body from a close range---Thus, there was an apparent conflict between the medical evidence and with ocular testimony delivered by the eye-witness---Fact, however, was that the deceased received firearm injuries from close range, and who was responsible for the said wounds was not known; however, the accused was not responsible for said wounds---Although the site plan was not a substantive piece of evidence in terms of Art. 22 of the Qanun-e-Shahadat, 1984, but it reflected the view of the crime scene---Same could be used to contradict or disbelieve eye-witnesses---Thus, there was an apparent conflict between the medical evidence and ocular testimony incapable of being reconciled by any amount of argument and persuasion--- Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Mst. Shamim Akhtar v. Fiaz Akhtar and 2 others PLD 1992 SC 211 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Chance witnesses---Non-availability of any justification for the presence of eye-witnesses at the time and place of occurrence---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Record showed that the occurrence occurred in the Dera/cattle shed of the complainant---Presence of the witnesses was by chance---Complainant stated the reason for his presence at his Dera was due to an ailment of a buffalo---Eye-witness and brother-in-law of the complainant deposed during cross-examination that his residence was not at the Dera of complainant/place of occurrence and he was not a veterinary doctor---Investigating Officer deposed during cross-examination that he did not mention in his spot inspection note about the presence of sick buffalo---Patwari deposed during cross-examination that he did not point out the presence of any sick buffalo in the place where witnesses were present---Medical Officer deposed that mouth and eye of the dead body were opened---Both the eye-witnesses deposed in their Court statements that they attended deceased, who succumbed to the injuries on the spot---If they attended to the deceased soon after the occurrence, there was no reason for the mouth and eyes of deceased to be open---Investigating Officer, after reaching the place of occurrence, inspected the dead body, prepared an injury statement, inquest report and photographs of the dead body of the deceased were also taken, and photo-card containing four pictures of deceased were secured and genuineness of the same was not denied by prosecution or complainant---Deceased was in knee-chest position, the body was lying on his side, and the torso was lying diagonally---Said fact suggested that the complainant and eye-witness were not present at the time of occurrence---If the complainant and an eye-witness were present at the place of occurrence and tried to close the eyes and mouth of the deceased and also straightened the dead body of the deceased, then there was no reason the same should have been closed and the dead body lying in a straight position---Thus, the complainant and eye-witness failed to prove their presence on the spot---With that background, the presence of the alleged eye-witnesses in the place seemed to be doubtful---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

(e) 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 not established---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---According to the complainant and eye-witness, two charging lights were lit at the time of occurrence---Investigating officer deposed that in the statement of the complainant, the factum of lightening of charging lights at the time of occurrence was not mentioned---Patwari deposed that he did not show the source of light, bulb in the garage, however, a charging light was hanging at the front guarder of garage in the middle---Charging lights were not a source of light recorded in the FIR---Charging lights produced in the Court were new---Statements about the source of light were not consistent---Statements of the prosecution witnesses did not support the FIR about the source of lights and they were contradictory---Evidence adduced by the prosecution did not establish that there was any source of light when the incident allegedly took place---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

(f) 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 that he along with his co-accused committed murder of the son of the complainant by firing---Motive set up by the prosecution in the Fard Beyan and FIR brought on the record through the deposition of complainant and witnesses was that about 1½ years before the occurrence, the daughter of the accused eloped with one Mr. "I", and the accused had a suspicion that the complainant party had facilitated and helped the elopement of his daughter with Mr. "I"; and due to that grudge, the accused had murdered the deceased---To substantiate the motive part of the case, the prosecution produced one witness---In the cross-examination of said witness, some omissions, contradictions and improvements had been brought on record by the defence---Investigating Officer deposed about the motive part of the occurrence that under the motive part of complaint, the name of deceased was not specifically mentioned---To whom the motive was attributed the witness had not stated that he received threats from the accused---Testimony of said witness revealed that the daughter of accused went to the house of Mr. "I" on 18.11.2015---During cross-examination, said witness admitted that accused had not caused murderous assault or damage to his family members, although they were residing in the village---Contrary to the deposition of said witness, the complainant deposed that prior to the occurrence, neither said witness nor any of his other family members was murdered by the accused---However, the accused made three murderous assault upon said witness but he remained alive due to his luck---Another witness deposed that he stated before the Investigating Officer that deceased and a witness facilitated Mr. "I" in elopement of daughter of accused with him---Said contradictions between the statements of witnesses were material and raised doubt or suspicion in the prosecution case about the motive for committing the occurrence---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

(g) 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 from the possession of the accused---Doubtful---Accused was charged that he along with his co-accused committed murder of the son of the complainant by firing---Record showed that weapon of offence, i.e., gun 12-bore repeater, one bandolier, four live cartridges and one magazine were recovered from the possession of the accused and positive report of Forensic Science Agency was also available on the record---However, it did not appeal to the prudent mind that the accused would conceal the gun 12-bore repeater, one bandolier, four live cartridges and one magazine in his residential Dera to hand it over to the police on his arrest---Said fact created doubt about the said recoveries---Defence version was that the Police Officers serving in the police department at the DPO office, on the next day of the occurrence, took into possession a shotgun along with the license of co-accused (since acquitted) and then the same was planted against them---Statement of the recovery witness threw clouds on the said recoveries---Recovery of the weapon of offence and the positive report were not of any consequence, in circumstances---Circumstances established that the prosecution had not been able to prove its case against the accused beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Ms. Saika Javed for Appellants.

Rana Ahsan Aziz, Additional Prosecutor General for the State.

Tallat Mahmood Tarhana for the Complainant.

2024 Y L R 445

[Lahore]

Before Sultan Tanvir Ahmad, J

AZHAR JAVAID---Appellant

Versus

Malik MUSHTAQ NOOR---Respondent

Civil Revision No. 36908 of 2023, decided on 16th October, 2023.

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

----S.55---Specific Relief Act (I of 1877), S. 12---Suit for specific performance---Agreement to sell---Time as essence of the agreement--- Intention of the parties---Delay / failure to deposit remaining consideration in the Court---"Willingness" of the party---Scope---Petitioner/vendor instituted suit for specific performance of agreement to sell while the respondent instituted suit for partition regarding the suit-property; suit filed by the petitioner was dismissed whereas suit filed by the respondent was decreed and he (respondent) was directed to return the earnest money (of Rs.27,00,000/-) to the petitioner---Appeal filed by the petitioner was also dismissed by the Appellate Court---Plea of the petitioner was that time was not of the essence in the agreement contending that in the cases of immoveable properties mere mentioning of the date in an agreement was not sufficient to construe the intention that the time was of essence---Validity---Contents of the agreement-in-question revealed that the parties specifically agreed that the remaining payment of Rs. 3,800,000/- (thirty eight hundred thousand rupees) was required to be made by a final date (cut-date), which was followed by a stipulation that upon failure of the same, the earnest money of Rs. 2,700,000/- (twenty seven hundred thousand rupees) would be forfeited---There was nothing in the agreement-in-question suggesting that when entering into the agreement real intention of the parties was that time should not be an essential clause so that the petitioner could get support from second part of S. 55 of the Contract Act, 1872---Intention of the parties to ensure the performance of obligations within the given time was further evident from the answer of the petitioner in his cross-examination by virtue of which he not only admitted existence of cut-date but also that he was not present on said cut-date---Unmistaken language of the agreement-in-question and close reading of evidence left no doubt that the time, as postulated, was of essence---In the present case, though the suit was filed soon after the final date settled by the parties for payment of remaining consideration but the petitioner instead of depositing the remaining consideration at the time of filing of the suit, admittedly caused a frustrating delay of about three and half years from institution of the suit for depositing of remaining consideration or in making such request to the Trial Court, in regard of which , he made admission while adducing his evidence---Petitioner had even failed to demonstrate his willingness and/or capacity to perform the agreement as per the agreed terms, by failing to deposit remaining consideration or by making the request to the Trial Court after three and half years of institution of the suit---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 and Ms. Sara Bibi v. Muhammad Saleem and others PLD 2021 Isl. 236 ref.

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

----O. VI, R.2---Contract Act (IX of 1872), S. 55---Specific Relief Act (I of 1877), S. 12--- Suit for specific performance---Evidence in departure of pleading of material fact(s)---"Facta probanda"---Scope---Petitioner/plaintiff instituted suit for specific performance, however, he failed to deposit remaining consideration in the Court; thereafter he developed his case and adopted the stance that some tenants were having possession of the suit property and the respondent had breached the condition of handing over vacant possession of the suit property---Held, that said stance was never the case of the petitioner/plaintiff when the suit was instituted as in the entire plaint, no such fact was pleaded, of which, he was mindful during his examination, and even deposed to said effect---Order VI, R. 2 of the Civil Procedure Code, 1908, required that the pleadings should contain a statement, in a concise form, of the material facts, on which the concerned party relied for his claim or defence---Allegations, of failure of condition by not retaining possession or renting out the suit property, formed facta probanda, which was a material fact and was required to be pleaded and then proved through evidence---Such material fact when not pleaded could not be deposed in the evidence---Evidence in departure of pleading of such material fact(s) could not be given any weight---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

Muhammad Aslam and others v. Muhammad Anwar 2023 SCMR 1371 ref.

Shahid Mehmood Khan Khilji, for Petitioner.

Malik Muhammad Imran Joiya for Respondent.

2024 Y L R 482

[Lahore (Multan Bench)]

Before Anwaar Hussain, J

BAKHSHA (deceased) through Legal heirs and others---Appellants

Versus

Sh. QADIR BAKSH (deceased) through Legal heirs and others---Respondents

Civil Revision No. 138-D of 2006, heard on 21st April, 2022.

(a) Punjab Redemption and Restitution of Mortgaged Lands Act (XIX of 1964)---

----Ss. 3 & 5---Mortgaged property, redemption of---Pre-emption decree, execution of---Objection petition was filed before the Executing Court by the original-owners/mortgagors to the extent of certain part of suit-property being mortgaged property---Executing Court accepted the objection and held that pre-emption decree was not executable to the extent of mortgaged property on the ground that said land did not lawfully belong to the vendor---Appellate Court maintained the order passed by the Executing Court---Validity--- Before independence, admittedly, mortgaged property owned by non-evacuee local Muslim owners was mortgaged to non-Muslim evacuees, which was wrongly treated as evacuee property and was allotted thereafter, and further sold by the allottee (predecessor of the objection-petitioners) to the vendor(pre-emptors/decree-holder) who, in turn, sold it to vendees that triggered the pre-emption proceedings---Only the interest to the extent of evacuees could have vested in the Custodian Authorities and the right of the predecessor-in-interest of the contesting respondents to redeem the mortgaged property always remained in field and could not have been taken away or extinguished---Where a preemptor brings a suit for pre-emption, he must ex-necessitate accept the title of the vendor as it is and it is actually on that basis that he claims his superior right of purchase---Such a pre-emptor can neither object to the defect in title of the said vendor nor claim a better title than that of his vendor---In the instant case, the title of vendor was defective inasmuch as he purchased the suit property from one to whom the mortgaged property was allotted by the Central Government on wrong premise that the mortgaged property was evacuee property , which in fact was not and later on proved to be so when the redemption was allowed---'Once a mortgage is always a mortgage and nothing but a mortgage' and, in the present case, the Muslim owners sought redemption of their property from the concerned court of Collector, in accordance with provisions of West Pakistan Redemption and Restitution of Mortgaged Lands Act, 1964, which was allowed and the mortgaged property forming part of the suit property was redeemed and reverted to the original owners/mortgagers which decision was maintained upto the Board of Revenue and in said manner pursuant to the redemption orders qua the mortgaged property, mutation in the name of the original owners/mortgagers was effected vide a mutation in the year 1985 when the pre-emption decree was not passed yet---If initial action was not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order---In such a situation, the legal maxim "sublato fundamento cadit opus", meaning that foundation being removed, structure/ work falls, comes into play and applies to the present case on all scores---Mortgaged property having been rightly redeemed was taken out of the sale in favour of vendees before the pre-emption suit was even decreed in favour of petitioners---Since the right of pre-emption was a mere right of substitution for one of the parties to the transaction, the defect in the title of the vendor or the vendee would be transferred to the pre-emptor along with the subject of sale, the necessary consequence of which would be that the pre-emptor's right could be defeated in the same manner in which vendee's right could be defeated by a person having locus standi to challenge the same---Even otherwise, admittedly, one of the petitioners/decree holders had purchased a part of the mortgaged property, during pendency of the objection petition, from two respondents and related mutation had been brought on record by duly exhibited document; meaning thereby that the petitioner side had admitted the respondents (objection petitioners) as the rightful owners and also exclusion of the mortgaged property from the suit property---Hence, by way of independent purchase from few of the respondents, the petitioners were estopped later to lay any claim on the same---No illegality or infirmity had been noticed in the impugned judgments and orders passed by the Courts below allowing Objection petition filed by the original-owners/mortgagors to the extent of mortgaged property---Revision filed by the decree-holders was dismissed, in circumstances.

M.A. Hafeez Khan and 9 others v. Riaz Ahmed Mehra and 3 others 1983 SCMR 803; Rashida Begum and others v. Saadi Baig and others 2003 SCMR 1456; Dugar Mal v. Gobind Saroop AIR 1950 EP 74 and Haji Rustam Khan (through legal heirs) v. Dilbar Khan and others PLD 1983 SC 212 ref.

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

----S. 47---Executing Court, powers of---Mortgaged property--- Pre-emption decree--- Inexecutability, issue of---Objection petition was filed before the Executing Court by the original-owners/mortgagors to the extent of certain part of suit-property being mortgaged property ('mortgaged property')---Executing Court accepted the objection and held that pre-emption decree was not executable to the extent of mortgaged property on the ground that said land did not lawfully belong to the vendor---Appellate Court maintained the order passed by the Executing Court---Before independence, admittedly, mortgaged property owned by non-evacuee local Muslim owners was mortgaged to non-Muslim evacuees, which was wrongly treated as evacuee property and was allotted thereafter; and further sold by the allottee (predecessor of the objection-petitioners) to the vendor (pre-emptors/decree-holder) who, in turn, sold it to vendees that triggered the pre-emption proceedings---Contention of the petitioners (pre-emptors/decree-holders) was that the impugned judgments passed by the courts below in accepting the objections of the respondents)original-owners/mortgagors) amounted to navigating beyond the decree as the Executing Court could not go behind the decree---Validity---Although the Executing Court could not go beyond the decree and it was obligated to adhere to the decree as it came before it for execution but said rule was not an absolute and invariable of law rather the same was subject to certain exceptions---Issue of the inexecutability could have been validly raised in the execution proceedings as the pre-emption decree to the extent of land falling in the ownership of predecessor-in-interest of the respondents (objection petitioners) could not have been passed and was null and void to that extent as the same never fell in the ownership of the vendees---Concomitantly, the execution of the decree passed in a pre-emption suit had been rightly refused to the extent of the land redeemed by the respondents (objection petitioners) and not in the ownership of the vendees to which right of pre-emption could have been exercised---No illegality or infirmity had been noticed in the impugned judgments and orders passed by the Courts below allowing objection petition filed by the original-owners/mortgagors to the extent of mortgaged property---Revision filed by the decree-holders was dismissed, in circumstances.

Islamic Republic of Pakistan v. Muhammad Saeed PLD 1961 SC 192 and Habib Bank Limited v. Mst. Parveen Qasim Jan and others 2014 SCMR 322 ref.

Ch. Muhammad Riaz Hussain Jahanian for Petitioners.

Syed Kabir Mahmood and Ghulam Shabbir Aheer for Respondents Nos. 47 to 51, 56, 59 to 61.

Proceeded against ex-parte vide order dated 24.01.2012 for Respondents Nos.1(a), 1 (b), 2, 3, 8 to 34, 35(a) to 35 (c), 36, 37, 38 (a) to 38 (f), 39 to 44, 52 to 55.

Proceeded against ex-parte vide order dated 21.04.2022 for Respondents Nos.45, 46, 57 and 58.

2024 Y L R 493

[Lahore]

Before Sultan Tanvir Ahmad, J

Mst. KHURSHEED BEGUM (deceased) through Legal Heirs---Appellant

Versus

ABDUL WAHID NASIM and 3 others---Respondents

R.S.A. No. 43 and C. R. No. 663 of 2014, decided on 7th July, 2023.

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

----Ss. 42 & 54---Civil Procedure Code (V of 1908), S. 100---Second appeal---Maintainability---Contradictory stance---Appellant/plaintiff claimed to be owner of suit property purchased in the name of her son as Benamidar, who sold the property to respondent/defendant---Both the Court below concurrently dismissed suit and appeal filed by appellant/ plaintiff---Validity---Stances in pleadings and evidence of suits filed by appellant/ plaintiff and respondent/defendant were in many-fold varying from stances in suit filed by son of appellant/plaintiff---In order to maintain possession over suit property appellant/plaintiff and her son were not reluctant even to mislead the Courts and they had remained successful in such design for 25 years---Miseries of execution were yet to start---Witnesses of appellant/plaintiff and her son were untruthful, who had been jumping from one stance to another and by giving implausible as well as self-contradictory statements, lost credibility and on the basis of such evidence any finding in their favour would be unsafe---Decisions of two Courts below, were not found against any law or usage having force of law or defective in any manner, which was essential to successfully maintain regular second appeal, under S. 100, C.P.C.---Not only was the conduct of son of appellant/plaintiff unconscionable, who maintained two different stances in two suits, disentitling him from equitable relief but at the same time his case was barred by limitation---High Court declined to interfere in judgments and decrees passed by two Courts below---Second appeal was dismissed accordingly.

Jan Baz and 10 others v. Shah Nawaz and 2 others 2017 YLR Note 215; Abdul Qadeer v. Ashiq Ali and 2 others 2006 YLR 2900; Jhanda and 3 others v. Maulvi Mukhtar Ahmad and another 2007 YLR 2493; Muhammad Qasim v. Wazir through L.Rs 2007 MLD 1086; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; Nasrullah Khan and another v. Mst. Khairunnisa and others 2020 SCMR 2101; Pir Bux and others v. Ghulam Rasool and others PLD 1997 Kar. 113; Muhammad Nawaz Minhas and others v Mst. Surriya Sabir Minhas and others 2009 SCMR 124; Hameeda Begum v. Farzand Ali 2002 YLR 1311 and Ghulam Murtaza v. Mst. Asia Bibi and others PLD 2010 SC 569 ref.

Muhammad Ghaffar (deceased) through LRs and others v. Arif Muhammad 2023 SCMR 344; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Ghafoor Khan (deceased) through LRs. v. Israr Ahmed 2011 SCMR 1545; Saadat Khan and others v. Shahid-Ur-Rehman and others PLD 2023 SC 362 and Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009 rel.

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

----Ss. 3 & 4---Limitation, extension of---Power of Judge---Scope---Judge cannot on equitable grounds enlarge time provided by law----Where question of law of limitation is not a mixed question of law and fact as well as the suit on the face of record is hit by limitation and when it becomes apparent to the Court, it becomes incumbent on Court, whether limitation is pleaded or not by litigant, to discharge its duty to reject the case.

Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153 rel.

Sheikh Naveed Shehryar and Sheikh Usman Karim-ud-Din for Appellant.

Ms. Safina Safdar Bhatti for Petitioner (in Civil Revision No. 663 of 2014).

Malik Ghulam-us-Syeddain for Respondent No. 1 (in R.S.A. No. 43 of 2014 and Civil Revision No. 663 of 2014).

Rana Sher Zaman Akram, Assistant Advocate General for Respondent No. 2 (in Civil Revision No. 663 of 2014).

Respondent No. 2 Proceeded ex parte vide order dated 17.06.2014 (in R.S.A. No. 43 of 2014).

2024 Y L R 509

[Lahore]

Before Aalia Neelum, JMAQSOOD AHMAD and 2 others---Appellants

Versus

The STATE---Respondent

Criminal Appeal No. 991, Criminal Revision No. 949 and P.S.L.A. No. 244 of 2012, heard on 4th March, 2022.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Private complaint lodged fourteen months after the occurrence---Accused were charged for committing murder of the son of complainant by firing---Motive behind the occurrence was previous enmity between the parties---Incident took place on 21.05.2010 at 12:00 a.m. (night) in an area which was at a distance of 06 kilometers from the police station---First Information Report was lodged on 21.05.2010 at 01.00 a.m. (night) on the basis of fard bayan of the complainant made on 21.05.2010 at 12.30 a.m.---Complainant submitted private complaint on 04.07.2011, after fourteen (14) months of the occurrence---Complainant alleged that police got her signature on the blank paper and her statement was not read over to her; and the police in collusion with the accused persons spoiled the case of the prosecution---However, the version of the complainant came on the record after fourteen months from the date of occurrence---Said facts raised grave doubts about the authenticity of the prosecution version---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Chance witnesses---Presence of eye-witnesses at the spot not proved---Accused were charged for committing murder of the son of complainant by firing---Record showed that the entire prosecution evidence was silent on the point that with whom the complainant proceeded to police station for reporting the incident, when at the road of a Chak, she met with the Investigating Officer---Investigating Officer had not deposed that after recording of "Fard Biyan" of the complainant, she also accompanied him to the place of occurrence---Rather, during cross-examination, the Investigating Officer deposed that when he reached the place of occurrence at about 01:00 a.m. (night), the complainant and witnesses were present there---Deposition of complainant and eye-witness, revealed that witnesses of ocular account were chance witnesses---Investigating Officer deposed during cross-examination that he had recorded the statements of witness and he stated that the complainant and her son were present in their village and she said that her deceased son was not available---Said witness did not know the reality of the narration, but as it was stated before him, he recorded it---Said facts raised grave doubts about the presence of the witnesses at the place of occurrence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Night time occurrence---Source of light not proved---Accused were charged for committing murder of the son of complainant by firing---Complainant deposed that in the light of motorcycle, they witnessed the occurrence---Draftsman deposed during cross-examination that witnesses had not disclosed to him any source of identification at the time of occurrence as such he had not mentioned the same in the scaled site plans---Witnesses had not disclosed about the presence of the motorcycle at the place of occurrence and as such he had not mentioned its presence in the site plans---Investigating Officer deposed during cross-examination that motorcycle of the deceased or any other motorcycle was not recovered from the place of occurrence at the time of his first visit to place of occurrence---Thus, it was concluded that there was no visibility in the odd hours of night and in the site plans, the source of light was not mentioned---Time of occurrence was indicative of fact that darkness had set-in and it was not possible to identify a person without using any source of light---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of about eleven hours in conducting postmortem examination upon the dead body of the deceased not explained---Accused were charged for committing murder of the son of complainant by firing---Investigating Officer deposed during cross-examination that he reached at the place of occurrence at about 01.00 a.m. (midnight) on the fateful night---One hour was consumed in preparing the injury statement and inquest report of the deceased and soon thereafter, he dispatched the dead body to the mortuary for postmortem examination---Eye-witness deposed that the dead body was firstly removed from the place of occurrence to Police Station at about 06.00 a.m. on the following morning---Postmortem examination of dead body was performed at about 02.00 or 02.30 p.m.---No plausible explanation was available as to why postmortem of the dead body was delayed for about eleven hours---Delay in conducting postmortem examination also led to the conclusion that the FIR. was recorded with a delay and the FIR had not been recorded at the time at which it was claimed to have been recorded---Said aspect of the matter was sufficient to cast doubt about the authenticity of the FIR---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of SIM from the accused---Inconsequential---Accused were charged for committing murder of the son of complainant by firing---Investigating Officer brought on the record that during investigation, SIM of mobile from which the accused persons made call to the deceased and asked him to come at the place of occurrence, by changing their voice was recovered from the accused persons and tried to connect the accused persons with the crime---SIM number was not physically verified by the Investigating Officer nor any record in that regard was placed on the record---Testimony of the prosecution witness was silent that in whose name the SIM was registered---Even the location of that number was not brought on record---Thus, the recovery of the SIM was of no consequence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Motive behind the occurrence---Scope---Accused were charged for committing murder of the son of complainant by firing---Motive behind the occurrence was previous enmity between the parties---Motive was a double edged weapon, which could be used for the commission of crime or for falsely implicating the accused---Not necessary to advert to the evidence on the question of motive as it was fairly admitted by both sides that they were enmeshed in civil and criminal litigation since long---Hence, when there were open hostilities between two groups, the motive factor might propel one side to indulge in crime and the same factor might possibly also induce the other group to implicate their rivals---Investigating Officer found two accused persons not involved in the case after collecting evidence in their defence and verifying their statements factually---Station House Officer and DSP/SDPO also verified the investigation of the Investigating Officer--- All these circumstances cast a serious doubt on the testimony of complainant and the eye-witness---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly--- Appreciation of evidence---Benefit of doubt---Absconsion of the accused---Not proof of guilt---Accused were charged for committing murder of the son of complainant by firing---Record showed that after the occurrence, the accused persons absconded themselves---However, in the light of the statement of the Investigating Officer, it could not be said that the requirements of declaring a person proclaimed offender were met with---However, the factum of abscondence, even if established, could only be used as corroborative evidence and was not substantive piece of evidence---Mere absconsion was not a proof of guilt of an accused---Prosecution had badly failed to bring home guilt of the accused persons through straight forward, confidence inspiring and corroborative evidence---Appeal against conviction was allowed, in circumstances.

Rasool Muhammad v. Asal Muhammad and another PLJ 1995 SC 477 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence on the pointation of the accused---Doubtful---Accused were charged for committing murder of the son of complainant by firing---Record showed that a gun 12 bore along with four live cartridges was recovered from co-accused, since acquitted; gun 12 bore along with one live cartridges was recovered from one accused and pistol 30-bore along with four alive bullets from other accused were recovered, and a positive report of Forensic Science Laboratory was available---Such evidence did not support the prosecution case as parcel of crime empties were deposited with the office of Forensic Science Agency on 27.09.2010---Prosecution had not established link between the recovered weapons and crime empties with the report of Forensic Science Agency, making the case of the prosecution highly doubtful---On perusal of report of Forensic Science Agency, it revealed that Police Constable submitted parcel of crime empties on 27.09.2010---Case of the prosecution was that Moharrar malkhana handed over the parcel of samples to the said Police Constable on 08.06.2010 for onward transmission to the office of Forensic Science Agency, whereas, report of Forensic Science Agency available on the record revealed that Police Constable deposited parcel of the empties with the office of Forensic Science Agency on 27.09.2010---Thus, there was no evidence to connect the report of Forensic Science Agency with the said weapons recovered on the pointing of the accused---Said contradiction in the deposition of the Police Officials as well as report of Forensic Science Agency could not be stated to be minor and irrelevant in the absence of the positive and material evidence---Said facts created doubt about the genuineness of the recovery of crime empties---Appeal against conviction was allowed, in circumstances.

Rai Bashir Ahmad and Rai Amir Rehman Kharal for Appellants.

Muhammad Akhlaq, Deputy Prosecutor General and Rana Ahsan Aziz, Deputy Prosecutor General for the State.

Naveed Ahmad Khawaja for the Complainant.

2024 Y L R 550

[Lahore]

Before Shahid Bilal Hassan, J

Mst. ROBINA SHEHNAZ and 10 others---Petitioners

Versus

MUKHTAR BEGUM and another---Respondents

Civil Revision No. 2701 of 2016, heard on 24th January, 2023.

Family Courts Act (XXXV of 1964)---

----S. 13---Enforcement of decrees---Recovery of decreetal amount of maintenance allowance--- Mutation transferring the property of the judgment-debtor, cancellation of---Executing Court, powers of---Scope---Before institution of the execution application by the decree-holders, the judgment-debtor had transferred his property through mutations on the basis of gift---Decree-holders moved application before the Executing Court for cancellation of said mutations---Said application was allowed by the Executing Court, however, the Appellate Court dismissed the same (application) by allowing the appeal filed by the judgment-debtor--- Validity--- Record revealed that the deceased judgment debtor transferred the property owned by him through two disputed mutations on the basis of alleged gift after dismissal of his constitutional petition by the High Court, which seemed to be nothing but an attempt to frustrate the decree passed against him---Therefore, the Executing Court was vested with jurisdiction to undo the said illegal act committed by the deceased judgment debtor and had rightly cancelled the said mutations by allowing application filed by the petitioners/decree-holders in said regard---Thus, the Appellate Court had failed to exercise its vested jurisdiction as per mandate of law and had committed illegality while passing impugned judgment which could not be allowed to hold field further---High Court set aside impugned judgment passed by the Appellate Court and restored the order of cancellation of gift-mutations passed by the Executing Court---Revision filed by the decree-holders was allowed, in circumstances.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128 ref.

Malikzada Hameed Ur Rehman for Petitioners.

Nemo for Respondent No.1.

Muhammad Muzammil Qureshi for Respondent No.2.

2024 Y L R 573

[Lahore]

Before Shahid Bilal Hassan, J

GHULAM HUSSAIN---Petitioner

Versus

PROVINCE OF PUNJAB and 2 others---Respondents

Civil Revision No. 69554 of 2023, decided on 23rd October, 2023.

Limitation Act (IX of 1908)---

----S. 3---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Limitation---Question of law--- Petitioner / plaintiff sought specific performance of agreement to sell with a delay of 18 years---Trial Court as well as Lower Appellate Court dismissed the suit and appeal filed by petitioner/plaintiff---Validity---Limitation is not a mere technicality or a hyper technicality---Once limitation expires, a right accrues in favour of other side by operation of law and such right cannot lightly be taken away---Question of law, even if not taken or raised by opposite party, can be considered by the Courts even at appellate and revisional stage---Both the Courts evaluated evidence in true perspective and had reached to a just conclusion---High Court declined to disturb concurrent findings on facts as the same did not suffer from any misreading and non-reading of evidence, howsoever erroneous, in exercise of revisional jurisdiction---Revision was dismissed, in circumstances.

Asad Ali and 9 others v. The Bank of Punjab and others PLD 2020 SC 736; Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others PLD 2015 SC 212; United Bank Limited and others v. Noor-un-Nisa and others 2015 SCMR 380; Almas Ahmad Fiaz v. Secretary Government of Punjab and others 2006 SCMR 783; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali through Legal Heirs and 4 others 1992 SCMR 2435; Haji Abdul Karim and others v. Florida Builders (Pvt.) Limited PLD 2012 SC 247; Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Muhammad Farid Khan v. Muhammad Ibrahim and others 2017 SCMR 679; Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469; Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others 2014 SCMR 161; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PLD 2022 SC 21 and Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353 rel.

2024 Y L R 628

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

SHAZAM ALI---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 26723-J and Murder Reference No. 82 of 2019, heard on 9th January, 2023.

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Appreciation of evidence---Last seen evidence---Accused were charged for committing murder of the brother of the complainant while snatching a car and committing dacoity---Complainant received information about the murder of his brother and the arrest of one person in an injured condition on 30.03.2017 at 01.00 p.m.---Information was given to the complainant by a witness---Statement made by the complainant got corroboration from a statement that was brought on the record by the defence from the witness, who provided information about the murder of the deceased to the complainant---Defence had not challenged the date, time, place of occurrence, presence of accused in the car on the front seat in injured condition, and receiving of injuries by the deceased in the car and falling outside the vehicle---Complainant deposed that the accused along with two others committed the incident, sitting in the car as passengers, driven by his deceased brother on a rental basis, and the defence did not deny such fact---Evidence of the complainant to the extent of his last seen evidence and identification of accused could not be shaken by the defence, despite being subjected to lengthy cross-examination---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to the mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 392---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, robbery--- Appreciation of evidence---Material evidence not presented---Effect---Accused were charged for committing murder of the brother of the complainant while snatching a car and committing dacoity--- Depositions of the court witnesses summoned on the request of the accused revealed that they were informed about the incident by the control room and they reached the place of occurrence---Said witnesses deposed that the caller's name was unknown to them---Emergency response forms were produced in original before the trial Court, which was signed by one of the court witnesses---Emergency response forms revealed that one of the court witnesses prepared the said documents about the information provided by the accused and services provided by them on the spot to the accused and took the dead body of deceased---Thus, the presence of court witnesses was admitted by the accused---Moreover, said witnesses were extensively cross-examined in all aspects---In fact, during the cross-examination, said witnesses stated the circumstances under which the deceased and injured were taken to the hospital---Deposition of said witnesses had a ring of truth and could not be discarded---Defence had not tried requisitioning the caller's record to ascertain who made the call---Fact had come before the Court during the testimonies of court witnesses that the informer's name was not known to them, instead, information was with the control room---Accused had not made effort for summoning of caller record from the Rescue 1122 force---Thus, an adverse inference was to be drawn within the meaning of Art. 129 (g) of Qanun-e-Shahadat, 1984, that had the caller record been summoned from Rescue 1122 force, then the said report would have been unfavorable to the prosecution---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to the mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 392---Qanun-e-Shahadat, (10 of 1984), Art. 19(a)---Qatl-i-amd, robbery---Appreciation of evidence---Relevance of facts forming part of same transaction--- Res-gestae--- Scope---Accused were charged for committing murder of the brother of complainant while snatching a car and committing dacoity---Statement was made by accused soon after the incident before court witnesses, who were not Police Officers, but were the members of Rescue 1122 force, and the accused did not deny their presence, was significant in the circumstances of the instant case---According to Art. 19(a) of Qanun-e-Shahadat, 1984, the statement of the accused made soon after the incident was relevant---Article 19(a) of the Qanun-e-Shahadat, 1984, made the evidence of the said court witnesses admissible because they had stated that on their asking accused said that quarrel took place between them and both of them fired at each other---Rationale for making certain statements on fact admissible under Art. 19(a) of the Qanun-e-Shahadat, 1984, was on account of spontaneity and immediacy of such statement or fact in relation to the fact in issue---Such a fact or statement must be part of the same transaction---In other words, such a statement must have been made immediately thereafter---If there was an interval that was sufficient for fabrication, then the statement was not relevant---What transpired from the evidence in the present case was that court witness deposed that on his asking the accused stated that quarrel took place between him and a dead person lying there and due to the said quarrel, they made firing on each other---So, the receiving of injury by the accused, receiving of injuries by the deceased, assembling of the court witnesses at the spot and after providing medical aid shifting of accused in injured condition and deceased to the hospital, making of the statement by accused before the court witness were parts of the same transaction---Unchallenged evidence of such witnesses showed that they came to the spot---Words of accused recorded in Emergency Response Forms were almost immediate so there was hardly any time gap sufficient to enable court witness to fabricate any such story, with the collusion of complainant, whereas Emergency Response Forms were submitted, soon after shifting of injured and dead to the hospital, with the office of 1122 Rescue force---Thus, it was a fit case where the doctrine of res gestae would be attracted and the testimony of court witnesses being treated as part of the same transaction in which the occurrence took place would be relevant and admissible and acceptable in aid of the prosecution---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to the mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Appreciation of evidence---Medical evidence corroborating ocular account---Accused were charged for committing murder of the brother of complainant while snatching a car and committing dacoity---Medical evidence was furnished by Medical Officer, who observed six firearm injuries, one incised wound, and two abrasions on the dead body of the deceased---From the testimony of Medical Officer and perusal of the postmortem report, it was revealed that deceased received injuries from a very close range and the position shown in the scaled site plan and un-scaled site plan revealed that deceased was sitting at driver side, which was on right side of the accused, who was sitting on the front seat at the left side of the driver, i.e., deceased---Deceased received firearm injuries on the inner side of his right leg, and the exit was on the outer side of his right leg---Said fact indicated that during the grappling, the deceased and injured accused received injuries---All the said facts indicated that the contents of the Emergency Response Form were correct, as per the statement made by the accused---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to the mitigating circumstances, the death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Appreciation of evidence---Recovery of weapon of offence and crime empties---Reliance---Accused were charged for committing murder of the brother of complainant while snatching a car and committing dacoity---Record showed that there were discrepancies regarding the recovery of pistol .30-bore in respect of the commission of the offence---In the instant case, the evidence produced by the prosecution about securing the pistol .30-bore and taking it into possession vide recovery memo was concerned, same was not trustworthy---One of the court witnesses specifically said in his examination-in-chief that injured person was having one pistol, which was lying on the seat on which he was sitting---Said witness lifted the said pistol and on their arrival in the hospital, he handed over the said pistol to the police---Mode of recovery of one pistol and crime empty from inside the car created doubt---So, to the extent of the pistol and the crime empty recovered from the place of occurrence by the Investigating Officer, a favorable report of Forensic Science Agency was of no consequence--- Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 392---Qatl-i-amd, robbery---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused were charged for committing murder of the brother of complainant while snatching a car and committing dacoity---In the present case, the factors which had persuaded the Court not to uphold the capital sentence of the accused were the mode and manner of recovery of the pistol 30-bore and crime empty, which had been disbelieved---As the accused had been convicted and sentenced to death for the murder of the deceased, in such an eventuality, the same could be considered a mitigating circumstance---Thus, death sentence awarded to the accused was quite harsh---Circumstances established that the prosecution had proved its case against the accused beyond any shadow of doubt, however, due to the mitigating circumstances, 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.

Mrs. Nighat Saeed Mughal for Appellant.

Rana Ahsan Aziz, Additional Prosecutor General for the State.

Sajjad Ahmad for the Complainant.

2024 Y L R 652

[Lahore]

Before Faisal Zaman Khan, J

MUSARRAT BIVI and 3 others---Petitioners

Versus

ADDITIONAL DISTRICT JUDGE, BHOWANA and another---Respondents

Writ Petition No. 27296 of 2023, decided on 20th April, 2023.

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

----S. 3---Limitation---Scope---It is the duty of every Court and forum to itself look into question of limitation irrespective of the fact whether any objection in such regard has been raised or not.

Government of N.WF.P. and others v. Akbar Shah and others 2010 SCMR 1408; Muhammad Sami v. Additional District Judge, Sargodha and 2 others 2007 SCMR 621; Faizum alias Toor v. Nander Khan and others 2006 SCMR 1931; Almas Ahmad Fiaz v. Secretary Government of the Punjab, Housing and Physical Planning Development, Lahore and another 2006 SCMR 783; Haji Ghulam Rasul and others v. Government of the Punjab through Secretary, Auqaf Department, Lahore and others 2003 SCMR 1815; Dilmir v. Ghulam Muhammad and 2 others PLD 2002 SC 403; Syed Iftikhar Hussain v. Ijaz Ahmad Cheema and another 1996 SCMR 943; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Ahsan Ali and others v. District Judge and others PLD 1969 SC 167; Saqib Ali v. Government of Punjab and others 2023 PLC (C.S.) 310; Shahin Shah v. Government of Khyber Pakhtunkhwa through Secretary Irrigation Department, Peshawar and others 2022 SCMR 1810; Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs PLD 2011 SC 657; Qaiser Mushtaq Ahmad v. Controller of Examination and others PLD 2011 SC 174 and Muhammad Amjad v. Senior Superintendent of Police (Operations), Lahore and others 2010 PLC (C.S.) 838 rel.

(b) Limitation---

----Void order---Scope---Even a void order has to be assailed within the period of limitation prescribed under law.

Chief Engineer, Gujranwala Electric Power Company (GEPCO), Gujranwala v. Khalid Mehmood and others 2023 PLC 65; Muhammad Sharif and others v. MCB Bank Limited and others 2021 SCMR 1158; Abid Hussain v. Secretary Ministry of Defence, Government of Pakistan through Chief of Air Staff, Islamabad 2021 SCMR 645; Haji Wajdad v. Provincial Government through Secretary Board of Revenue, Government of Balochistan Quetta and others 2020 SCMR 2046; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2015 PTD 107; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594; Gen. (R) Parvez Musharraf v. Nadeem Ahmed (Advocate) and another PLD 2014 SC 585 and Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587 rel.

(c) Punjab Pre-emption Act (IX of 1991)---

----S. 5---Constitution of Pakistan, Art. 199---Constitutional petition---Right of pre-emption--- Ex parte decree---Limitation---Suit filed by respondent/ plaintiff for possession of suit land through pre-emption was decreed ex parte against petitioners/defendants---Validity--- Conduct of petitioners/ defendants was not only dilatory and negligent but the same was also contumacious---Petitioners/defendants failed to give any sufficient cause for not pursuing suit or for filing application for setting aside ex parte judgment and decree after considerable delay---Law helps the vigilant and not the indolent---Petitioners / defendants had been employing devious and dilatory tactics therefore, delinquency on their part was not only very much conspicuous but the same was also unexplained---High Court in exercise of Constitutional jurisdiction under Art. 199 of the Constitution, declined to interfere in the judgment and decree passed by Trial Court, as such jurisdiction was discretionary and equitable in nature---Constitutional petition was dismissed in circumstances.

Evacuee Trust Property Board and others v. Mst. Sakina Bibi and others 2007 SCMR 262 and Muhammad Hussain and 2 others v. Mst. Zarina Akbar and 6 others 2017 CLC 1426 distinguished.

State Bank of Pakistan through Governor and another v. Imtiaz Ali Khan and others 2012 SCMR 280; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Rehmat Din and others v. Mirza Nasir Abbas and others 2007 SCMR 1560; Muhammad Nawaz and others v. The State 2004 SCMR 945; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145; Aftab Iqbal Khan Khichi and another v. Messrs United Distributors Pakistan Ltd., Karachi 1999 SCMR 1326; Abdul Rashid v. Pakistan and others 1969 SCMR 141; Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others PLD 1973 SC 236; Federation of Pakistan and others v. Haji Muhammad Saifullah Khan and others PLD 1989 SC 166; Inayat Khan and others v. Allah Ditta and others 2007 SCMR 655; Ch. Muhammad Shafi v. Shamim Khanum 2007 SCMR 838; Muhammad Maqsood Sabir Ansari v. District Returning Officer, Kasur and others PLD 2009 SC 28; Tasnim Jalal and others v. Deputy Director, A.N.F. and others 2010 SCMR 72; Muhammad Fiaz Khan v. Ajmer Khan and another 2010 SCMR 105; Javed Masih and others v. Additional District Judge, Lahore and others 2010 SCMR 795; Moulvi Muhammad Azeem v. Alhaj Mehmood Khan Bangish and another 2010 SCMR 817; Dr. Ayesha Sabir v. Fida ul Haq 2010 SCMR 1811 and Muhammad Arif v. Uzma Afzal and others 2011 SCMR 374 rel.

2024 Y L R 684

[Lahore]

Before Abid Aziz Sheikh and Faisal Zaman Khan, JJ

MUHAMMAD RAMZAN & COMPANY---Plaintiff

Versus

MUHAMMAD AMEER KHAN and others---Defendants

R.F.As. Nos. 33094 and 44060 of 2022, heard on 2nd October, 2023.

Punjab Mining Concession Rules, 2002---

----R. 236---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), S. 42---Suit for declaration and recovery of money---Excavation of limestone--- Onus to prove--- Facts not mentioned in pleadings---Respondent/plaintiff sought recovery of cost of limestone allegedly excavated by appellants/defendants during construction of road from the area leased to him---Trial Court decreed the suit in favour of respondent/ plaintiff---Validity---Person who alleged a certain fact had to prove the same---No specific incident with regard to when, through whom and how illegal excavation of limestone was done by appellants/defendants---It was also not mentioned in the plaint as to how the limestone was transported---Any evidence led in such regard was beyond the scope of pleadings---Suit filed by respondent/ plaintiff was not maintainable in view of bar contained in R. 236 of Punjab Mining Concession Rules, 2002, as no Court or other authority had jurisdiction to entertain or to adjudicate upon any matter which Provincial Government or Licensing Authority was empowered by or under rules to dispose of or to determine---High Court set aside judgment and decree passed by Trial Court and had dismissed the suit filed by respondent/plaintiff---Appeal was allowed, in circumstances.

Sheikh Ishtiaq Ahmad and others v. Muhammad Usman Ali Sheikh and another 2021 SCMR 1277; Muhammad Aslam and others v. Muhammad Anwar 2023 SCMR 1371; Messrs Pak Suzuki Motors Company Limited through Manager v. Faisal Jameel Butt and another PLD 2023 SC 482; Muhammad Ghaffar (Deceased) through L.Rs. and others v. Arif Muhammad 2023 SCMR 344; Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Messrs Essa Engineering Company (Pvt.) Ltd. and another 2014 SCMR 922; Muhammad Wali Khan and another v. Gul Sarwar Khan and another PLD 2010 SC 295; Abdul Haque and others v. Shoukat Ali and 2 others 2003 SCMR 74 and Muhammad Hussain v. Khushi Muhammad through L.Rs. and 5 others 2003 CLC 478 rel.

Ch. M. Tariq Mehmood Ansari for Appellants.

Baleegh uz Zaman Chaudhry, Addl. A.G. along with Safdar Iqbal, S.D.O., Highway, Mianwali for Appellants (in R.F.A. No. 44060 of 2022).

Usman Nasir Awan for Respondent No.1.

2024 Y L R 704

[Lahore]

Before Safdar Saleem Shahid, J

MUHAMMAD TUFAIL and others---Petitioners

Versus

NIAZ AHMAD and others---Respondents

Civil Revision No. 355-D of 2000, decided on 20th October, 2021.

Civil Procedure Code (V of 1908)---

----Ss. 12(2), 151 & O. XLI, R. 21---Punjab Pre-emption Act (IX of 1991), S.24---Maxim "a man who seeks equity must come with clean hands"---Scope---Application for restoration of revision petition, dismissal of---Suit for possession filed by respondent/pre-emptor (deceased) was concurrently decreed--- Petitioners/defendants filed revision petition before High Court which was dismissed due to non-prosecution--- Respondent filed an execution petition and during its pendency he submitted the copy of the order of the Court for dismissal of revision and got warrant of possession in their favour and subsequently they got the possession of the suit land---Six months after the dismissal of the civil revision and after four months of the proceedings of warrant of possession, the vendees/judgment debtor filed an application for restoration of civil revision---In the said application vendees did not mention anything regarding the proceedings of warrant of possession of the suit land whereas record showed that they were present in the said proceedings---Petitioners/defendants had moved the application for withdrawal of pre-emption amount from the Court and as per procedure all the vendees signed over the application and received their respective shares---Petitioners/defendants did not deem it necessary to inform the Court regarding the withdrawal of amount or mentioning the taking over the possession of the decree holder, which was very strange because if such situation had been mentioned before the Court, the situation would have been different---During the proceedings of civil revision the respondents were proceeded against ex-parte---High Court allowed the civil revision ex-parte and set-aside judgments/decrees passed by both the courts below and dismissed the respondent's suit with costs throughout---Conduct of the petitioners/ defendants-vendees showed that they had not come with clean hands and any discretionary relief or even relief would not available to a person who came to Court with un-cleaned hands---In an application the applicant/legal heirs of the deceased pre-emptor had mentioned the reason that impugned judgment was obtained by the defendants/vendees by concealment of facts from the Court, falling within the provision of S. 12(2), C.P.C.---However, application for rehearing of civil revision should be converted into the application under S.12(2) of Civil Procedure Code, 1908, because law is based on equity, the discretionary relief would be available to a person who comes to court with clean hands---Prima facie it seemed that when the vendees filed an application in the court they mentioned that there was no further litigation pending and they sought permission for withdrawal of the amount which was allowed meaning thereby that they concealed the factum of the filing of the application for restoration of civil revision before High Court---Infact they impliedly accepted the decision of the courts below and in that regard their case was at the same footing as that of vendee who effected compromise with the pre-emptor in the other suit and got the pre-emption amount as per his share---Other important factor was that when the order for restoration of civil revision was passed the vendees did not file any application before any court for restoration of the possession or for depositing of the pre-emption amount which they had already withdrawn from the court, immediately, rather it was filed after elapse of more than three years after restoration of civil revision which itself reflectedmalafide on their part---So the vendees were not in the field and they had accepted the claim of the pre-emptors and withdrew the pre-emption amount from the court and in that regard their application for restoration of civil revision had become infructuous, therefore, the order which had been obtained by way of concealment of facts was not sustainable in the eyes of law---Applications filed by the applicants/legal heirs of deceased pre-emptor for rehearing of civil revision were converted into the application under S. 12(2) of C.P.C. read with S. 151,C.P.C. and it was declared that impugned judgment and decree passed by High Court was obtained by concealment of facts, therefore, same was not sustainable in the eyes of law and the suit for possession through pre-emption which had already been decreed in favour of deceased/plaintiff/pre-emptor by the both the courts below stoods in field--- Application filed by the respondents / defendants-vendees for restoration of civil revision was not maintainable, hence the same was dismissed---Constitutional petitions having become infructuous were disposed of accordingly.

Mirza Nazeer Ahmad Baig v. Additional District Judge, Kasur and 2 others 1996 CLC 1616 and Niaz Muhammad v. Mst. Noori 1997 MLD 406 rel.

Sh. Karim-ud-Din and Sh. Arfan Karim-ud-Din for Petitioners/Plaintiff.

Aejaz Ahmed Ansari and Aqeel Ahmad Ansari for Respondents/ Defendants.

2024 Y L R 716

[Lahore]

Before Asim Hafeez, J

Mst. SHAHNAZ BIBI and others---Appellants

Versus

OMBUDSPERSON (MOHTASIB) PUNJAB and others---Respondents

Writ Petition No. 17710 of 2022, decided on 6th November, 2023.

Punjab Enforcement of Women's Property Rights Act (X of 2021)---

----S. 7---Constitution of Pakistan, Art. 199--- Constitutional petition---Complaint to Ombudsperson---Conditions prescribed under S. 7 of the Punjab Enforcement of Women's Property Rights Act--- Non-compliance of---Effect---Petitioners were aggrieved of order passed by Ombudsperson allowing complaint filed against them---Plea raised by the petitioners was that order had been passed without fulfilling the requirements prescribed under S. 7 of the Punjab Enforcement of Women's Property Rights Act, 2021 ('the Act 2021')---Validity---Record, evidently, revealed that no compliance of requirements as envisaged under section 7 of the Act, 2021 was made, which (non-compliance) had manifested unlawfulness qua exercise of jurisdiction and non-adherence to the ratio settled in the case reported as Ali Ahmad and 4 others v. Ombudsman (Mohtasab) Punjab and 6 others (PLD 2023 Lahore 711)---High Court , while abstaining from touching the merits of the case, as it would prejudice the proceedings before the respondent/Ombudsman (Mohtasab) as well as pending litigation before the Civil Court, set-aside the order passed by the respondent/Ombudsman (Mohtasab) and directed that complaint of the respondent would be deemed pending before the Mohtasab who would proceed to adjudicate upon the same in the context of the effect of S. 7 of the Punjab Enforcement of Women's Property Rights Act, 2021---Constitutional petition was allowed, in circumstances.

Ali Ahmad and 4 others v. Ombudsperson (Mohtasib) Punjab and 6 others PLD 202 Lah. 711 ref.

Zahid Mehmood Ch. for Petitioners.

Waqar Saeed Khan, A.A.G.

Muhammad Naeem Ch., Legal Assistant, on behalf of Respondent No. 1.

2024 Y L R 745

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

SHUJA-UL-HAQ MALIK---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 51188 of 2022, heard on 9th January, 2023.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Benefit of doubt---Prosecution case was that a consignment owned by accused containing 22.038 kilograms heroin was taken into possession by the police---Allegedly, an international smuggler "T" had secretly concealed heroin in the cloth consignment--- Admittedly, the prosecution witnesses, i.e., the complainant (Investigating Officer) and recovery witness made a statement revealing that during the investigation, no connection of the accused was found with "T" or that he was aware of the presence of any narcotic substance concealed in the consignment---Said witnesses had not supported the prosecution version---Admittedly, in the presence of the Prosecutor for ANF, the statements of said witnesses were recorded and said witnesses were not declared hostile by the Trial Court---Prosecution witnesses deposed similarly about the role of accused, which was found during the investigation---Otherwise, if the prosecution witness's design was obvious, why the Trial Court could not, during the course of the prosecution witness's cross-examination, permit the person calling him/them as a witness/witnesses to put questions to him/them which might be put in cross-examination by the adverse party---In the course of cross-examination, when favorable answers had been elicited, the same would be considered by the Trial Court while passing the final judgment---Trial Court, while passing the judgment, whereby conviction and sentence of the accused were recorded, had not considered the evidence of the prosecution witnesses---Circumstances established that the prosecution failed to establish the guilt of accused beyond any shadow of doubt---Appeal was allowed accordingly.

Muhammad Ahsan Bhoon and Muhammad Imran Sulehria for Appellant.

Malik Muhammad Irfan, Special Prosecutor ANF for the State.

2024 Y L R 762

[Lahore]

Before Ch. Abdul Aziz, J

USMAN ALI MAQBOOL---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous Bail Petition No. 47792-B of 2023, decided on 21st September, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497(1)---Penal Code (XLV of 1860), Ss. 302, 324, 337-F(v) & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, common intention---Bail, grant of---Further inquiry---Case of cross-versions---Petition was declared innocent during investigation---As per the contents of the crime report, the allegation against the petitioner was that he along with his co-accused committed murder of two brothers by firing and caused firearm injuries to another person---Record showed that during probe cross-version of the case was also brought on record upon the application moved by Mr. "A"---According to the counter-version, one of the accused persons of F.I.R received a bullet injury on his left arm due to a shot statedly fired by Mr. "Q"---As per record, said injured was examined at THQ Hospital shortly after the incident and was found in receipt of a firearm entry wound on the left bicep which had a corresponding exit wound as well as a fracture---Investigating Officer informed that the facts emanating from the counter-version of the incident were found to have truth in them---Procedural relief of bail was generally granted in cases of two versions in the absence of some extraordinary circumstances, more importantly when the counter stance of the accused about the same incident was supported by some record and investigation---Courts lean in favour of extending the concession of post-arrest bail to an accused in cases of cross-version on the premise that in such like cases it is always in fitness of things to leave the question of initiation of aggression to the trial Court where it could best be decided after in-depth analysis of the evidence---In routine ipse-dixit of the police without evaluating the supporting reasoning was not considered sufficient for the grant of post-arrest bail in a homicide case---Such opinion in favour of an accused could still be used for enlarging him on post-arrest bail if it was based on some confidence inspiring material by examining it on the touchstone of tentative assessment---Courts were not oblivious of the fact that vested interests, defective investigations and dishonest opinions had eroded and polluted the investigation process of criminal cases---At the same time, the vengeance of litigants prompts them to grill some innocent persons along with actual offenders in criminal cases and fair police investigation was the only tool left for lifting veil from the actual facts---In the instant case, it was observed from record that petitioner was declared innocent on the basis of visuals of incident captured in CCTV camera installed adjacent to the crime scene---Said visuals were also forwarded to Forensic Science Agency and it was reported that the clips were free from editing and tampering---Needless to mention here that such video clips had legal admissibility in consonance with Arts. 46-A & 164 of Qanun-e-Shahadat, 1984, thus could be taken into consideration even at bail stage---According to the police opinion based on these visuals, in fact the complainant-side mounted an aggression to take the life of petitioner who got married earlier in the day but unfortunately two brothers became victims of that attack, though none out of them had any concern with the ongoing enmity of the two families---Petition was allowed in circumstances and petitioner was admitted to bail.

Muhammad Zahid Umar v. The State and others 2016 SCMR 1246; Muhammad Shahzad Siddique v. The State and another PLD 2009 SC 58; Shoaib Mehmood Butt v. Iftikhar-ul-Haq and 3 others 1996 SCMR 1845; Khursheed Alam and another v. The State 2005 PCr.LJ 582; Kashif v. The State 2005 PCr.LJ 462; Muhammad Akhtar v. The State and another 2012 YLR 2025 and Abdul Rauf and another v. The State and another 2018 PCr.LJ 834 rel.

Rana Jamshaid Hussain Khan for Petitioner.

Imran Zahid for the Complainant.

2024 Y L R 776

[Lahore (Rawalpindi Bench)]

Before Raheel Kamran, J

MUHAMMAD ISLAM---Appellant

Versus

ADDITIONAL DISTRICT JUDGE and others---Respondents

Writ Petition No. 2722 of 2021, decided on 19th November, 2021.\

(a) Punjab Rented Premises Act (VII of 2009)---

----Ss. 15 & 19---Eviction of tenant---Tenancy agreement, expiry of---Scope---Petitioner/tenant was non-suited by both the Courts below on his failure to produce any payment of receipt of rent due---Validity---In the present case, tenancy agreement inter se the landlord and tenant had expired and there was no extension of agreement between the parties thereafter---In absence of any written agreement inter se the petitioner/tenant and respondent/landlord was to be reckoned on month to month basis and, in absence of anything to the contrary, the oral tenancy could be considered to have expired in the present case---Petitioner/tenant had failed to point out any illegality or jurisdictional defect in the impugned orders and judgments passed by both the Courts below warranting interference by the High Court---Constitutional petition filed by the tenant was dismissed in limine, in circumstances.

Muhammad Akram Bhatti v. Additional District Judge, Attock and 3 others 2021 CLC 1405; Asad Ali Khan v. Special Judge Rent and others PLD 2019 Lah. 363; Muhammad Nayab v. Additional District Judge, Rawalpindi and 2 others 2016 MLD 1095 and Muhammad Tafeeq v. Muhammad Nawaz and 2 others 2015 CLC 1187 ref.

(b) Punjab Rented Premises Act (VII of 2009)---

----Ss. 2(d), 15, 19 & 22---Eviction petition---Relationship of landlord and tenant, denial of---Status of ejectment petitioner as "landlord"--- Scope---Petitioner/tenant, who admittedly executed the lease agreement with the respondent, had failed to establish bona fide in raising plea regarding status of respondent as landlord---Definition of the 'landlord' as stipulated in S. 2(d) of the Punjab Rented Premises Act, 2009, included not only the owner but the one authorized to receive rent of the rented premises---Therefore, any person entitled to claim rent was a landlord---Petitioner, who admittedly, obtained rented premises on lease from the respondent and paid him the rent for four years, had no right to question his authority to lease the rented premises---Where conduct of the tenant was found to be inequitable in denying the status of landlord, he was entitled to the grant of any equitable relief, therefore, the contention of the petitioner/tenant was clearly misconceived--- Petitioner/tenant had failed to point out any illegality or jurisdictional defect in the impugned orders and judgments passed by both the Courts below warranting interference by the High Court---Constitutional petition filed by the tenant was dismissed in limine, in circumstances.

Asad Ali Khan v. Special Judge Rent and others PLD 2019 Lah. 363 ref.

(c) Punjab Rented Premises Act (VII of 2009)---

----Ss.7, 15, 19 & 20---Eviction petition---Payment of rent, mode of---Scope---Claim of the petitioner/tenant was that he had paid excess amount which be treated as rent paid---Validity---There was nothing reliable placed on record by the petitioner in support of his claim---Punjab Rented Premises Act, 2009, recognized modes of payment only as provided under Ss. 7 & 20 of the said Act, and the petitioner/tenant had annexed nothing to establish payment in any of the said modes---Petitioner/tenant had failed to point out any illegality or jurisdictional defect in the impugned orders and judgments passed by both the Courts below warranting interference by the High Court---Constitutional petition filed by the tenant was dismissed in limine, in circumstances.

2024 Y L R 783

[Lahore]

Before Shahid Jamil Khan, J

Messrs HADI DEVELOPERS PRIVATE LIMITED---Appellant

Versus

GOVERNMENT OF THE PUNJAB and others---Respondents

Writ Petition No. 70681 of 2023, heard on 15th November, 2023.

Punjab Local Government Act (XXXIII of 2022)---

----Ss. 166, 167, 168 & 169---Preliminary planning permission of a private housing scheme---Administrator, powers of---Scope---In the case reported as Messrs Mazhar Hussain Goraya v. Government of Punjab and others (PLD 2023 Lahore 257) the High Court held that Administrator can deal only with day-to-day affairs, which judgment (Mazhar Hussain's case) was suspended by the Division Bench of the High Court--- Petitioner (developers) sought direction for decision on its applications for Preliminary planning permission of a private housing scheme contenting that as the judgment in (Mazhar Hussain's case was suspended, thus the respondents (Administrator/Local Government) could exercise powers meant to be exercised by the elected Local Government---Validity---Suspension of judgment has effect only to the extent of the case i.e. in personum---Law or its interpretation, (the laid down law) cannot be suspended, being in rem, unless the law is otherwise interpreted and overruled by the Bench of higher strength---Law cannot be suspended, unless declared ultra vires---Judgment in Mazhar Hussain's case interpreted the Punjab Local Government Act, 2022, by referring to various provisions, which are unambiguous, therefore, the contention of the petitioners (regarding suspension of judgment), could not be taken as the law (laid down ) is suspended, hence, is binding on the Administrators and other officials working in and for the interim setup and any violation can lead to legal consequence against the delinquents---Request for Preliminary planning permission by the petitioner falls under Ss. 166 to 169 of the Punjab Local Government Act, 2022 which envisage a procedure to be carried out by the Head of Local Government with other elected office bearers---High Court, therefore, held that the law laid down in Mazhar Hussain's case is applicable and respondent Local Government, and other Local Governments, cannot exercise powers meant to be exercised by the elected Local Government---Permission for Preliminary planning, being outside the powers of interim Local Government, cannot be directed---Constitutional petition moved by the developers was dismissed, in circumstances.

Federation of Pakistan v. Aitzaz Ahsan and another PLD 1989 SC 61 ref.

Muhammad Usman Gondal and Ali Raza Warraich for Petitioner.

Wasim Majeed Malik, Additional Advocate General Punjab for Respondents.

2024 Y L R 789

[Lahore]

Before Shahid Bilal Hassan, J

GHULAM SHABBIR (deceased) through L.Rs. and others---Appellants

Versus

MUHAMMAD NAWAZ (deceased) through L.Rs. and others---Respondents

R.S.A. No. 208 of 2011, heard on 17th October, 2023.

Punjab Pre-emption Act (I of 1913) [since repealed]---

----S. 6---Suit for possession through pre-emption--- Thumb impression---Proof--- Non-holding of inquiry---Respondents / plaintiffs claimed their superior right of pre-emption on the basis of co-sharers of the estate in the village---Judgment and decree passed by Trial Court was maintained by Lower Appellate Court---Validity---No one could be held guilty without any proper inquiry, scrutiny and providing him/her fair opportunity to plead and defend his/her case---Without any such inquiry the appellants/defendants were held culprits of tampering with thumb impressions of respondents/plaintiffs on the plaint and Wakalat Nama---Such practice could not be stamped by endorsing the same and no one could be held responsible until and unless a thorough inquiry into the matter was carried out---Veracity of documents in question were disbelieved and discredited due to the observations with regards to super imposing of thumb impressions---Such observations were based on self-conceived and biased approach, without any backing i.e. findings on the basis of thorough inquiry into the matter---High Court declined to approve findings germane to the documents as Lower Appellate Court while passing judgment and decree failed to exercise vested jurisdiction as per mandate of law and had totally misread evidence on record and had committed illegalities---High Court set aside judgment and decree and remanded the appeal to Lower Appellate Court for its decision afresh---Second appeal was allowed accordingly.

Muhammad Mehmood Chaudhry for Appellants.

Sh. Naveed Shahryar, Sh. Usman Karim Ud Din, Barrister Faridoon Kamran and Safina Safdar Bhatti for Respondents Nos.3 and 4.

Zafar Iqbal Chohan and Sarosh Zafar for Respondents Nos.1, 2, 5 and 7.

2024 Y L R 793

[Lahore]

Before Rasaal Hasan Syed, J

DOST MUHAMMAD KHAN (deceased) through L.Rs.---Petitioners

Versus

FAREED MUHAMMAD KHAN and 7 others---Respondents

Civil Revision No. 12352 of 2022, decided on 30th March, 2022.

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

----Art. 113---Specific Relief Act (I of 1877), S. 12---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance---Limitation---Trial Court rejected the plaint for being time barred---Appeal was also dismissed---Validity---Claim of petitioners in the present suit was based on an agreement of sale purportedly dated 08.07.1996 wherein specific performance was claimed and also annulment of mutation dated 24.01.2001 was solicited---First suit of the petitioners on the same subject and with the same cause of action was instituted on 29.03.2003 which was withdrawn on 25.02.2010 with permission to file a fresh suit---Second suit was instituted again on the same subject in the year 2010 which was withdrawn on 08.05.2014 with permission to file fresh suit, while the third suit out of which the instant petition arose was instituted on 29.05.2014 approximately after more than 17 years from the date of the agreement and 13 years from the date of mutation under challenge---On being confronted that Art. 113 of Limitation Act, 1908, provided for a period of three years to file a suit for specific performance from the date mentioned in the agreement or from the date when the performance was refused and that as per petitioners' own stance, the first suit was instituted on 29.03.2003 when the land had already been sold through mutation dated 24.01.2001 which was indicative of refusal to perform agreement, petitioners submitted that as a matter of fact in terms of oral understanding, the performance of the agreement was to be made after the termination of litigation in respect of the property which explanation did not sound convincing as the petitioners themselves annexed copy of civil revision and also its order-sheet inclusive of order dated 02.03.2005 from where it was evident that revision petition was dismissed on 02.03.2005---Even if the petitioners' stance was considered, yet the suit having been filed on 29.05.2014 after more than nine years, it could not save the petitioners from the repercussion of filing a time-barred suit---Pendency of any litigation otherwise could not be a legally tenable ground for non-filing of suit was unless the filing of suit was claimed to have been stayed by a specific injunctive order of the court which was not the case in the present case---Revision petition being without merits was accordingly dismissed.

Bahadar Alam and others v. Abdul Razzak and others 2001 YLR 331; Malik Zahir and others v. Muhammad Saleem and others 2010 CLC 642;

Saltnat Khan and others v. Asfandyar Khan and others 2015 YLR 2559 and Mrs. Akram Yaseen and others v. Asif Yaseen and others 2013 SCMR 1099 rel.

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

----Art. 113---Civil Procedure Code (V of 1908), O. VII, R. 11---Specific Relief Act (I of 1877), S. 12--- Suit for specific performance--- Limitation--- Plaint, rejection of---Scope---Trial Court rejected the plaint for being time barred---Appeal was also dismissed---Validity----Suit was filed after 17 years from the alleged accrual of cause of action---Question of limitation could be determined without evidence and framing of issues---Where the allegations in the plaint did not require any roving inquiry to give findings that the suit was barred by limitation and that the plaint on the face of it was based on facts not seriously in dispute was barred by time, then the plaint could be rejected under O. VII, R. 11, C.P.C.---Facts being undisputed in the instant case, the plaint was rightly rejected on the face of it; the suit was filed after 17 years from the alleged accrual of cause of action, though under Art. 113 of the Limitation Act, 1908, the suit could be instituted within three years---No exception could be taken to the orders passed by the courts below in circumstances---Revision petition being without merits was accordingly dismissed.

Abdul Majeed and others v. Tasaduq Ali and others 2018 CLC 245 and Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513 rel.

2024 Y L R 824

[Lahore]

Before Faisal Zaman Khan, J

ABDUL WAHID---Petitioner

Versus

ADDITIONAL DISTRICT JUDGE, LAHORE and 3 others---Respondents

Writ Petition No. 53442 of 2020, heard on 20th April, 2022.

Punjab Rented Premises Act (VII of 2009)---

----S. 17(8)--- Eviction petition---Relationship of landlord and tenant, denial of---Scope---Trial Court dismissed the ejectment petition, whereas the appellate Court allowed the ejectment petition---Petitioner, in reply to eviction petition filed by the respondent, categorically denied the relationship of landlord and tenant between the parties---Validity---Initially onus to prove the relationship was definitely on respondent which he discharged when he appeared himself as a witness and produced registered sale deed---Once that fact was proved by respondent, the onus shifted upon the petitioner to justify and prove his claim that property was mortgaged in his favour and oral agreement to sell was made---Since respondent had not produced any corroborative evidence in support of his application for leave to contest/reply, thus, his stance could not be considered---If the stance of the petitioner qua mortgage was considered to be correct, a perusal of the documents attached with the present petition would show that the copy of the alleged mortgage deed had been appended with this petition (without permission), contents of which showed that it was executed in 2012 and was for a period of two years---Moreover, it had been mentioned in the said deed that petitioner was retaining the possession as a tenant (in order to deceive the court where the said assertion had been mentioned, the words had been defaced by applying a thumb impression thereon)---Moreover the assertion of mortgage had himself been diluted/belied by the petitioner in his suit for specific performance and permanent injunction filed against the vendor, a copy of which had been appended with this petition (again without permission) in which, on one hand, he asserted that the shop in dispute was mortgaged to him and thereafter in a paragraph of the plaint, he asserted that the vendor orally agreed to sell the shop in dispute to the petitioner---Said assertions would demolish the case of the petitioner with regard to subsistence of any mortgage in view of the fact that if the mortgage was in place why would he enter into an oral agreement to sell with the vendor for the sale of the shop in dispute---Said fact clearly showed that if at all there was any mortgage, it was for two years which came to an end in 2014 and was substituted with an alleged oral agreement to sell---Petition was dismissed, in circumstances.

Muhammad Ijaz Ahmad Chaudhary v. Mumtaz Ahmad Tarar and others 2016 SCMR 1; Mirza Book Agency through Managing Partner and others v. Additional District Judge, Lahore and others 2013 SCMR 1520; Pir Muhammad Manjh v. Naveed Iqbal Malik and 2 others 2017 MLD 418; Dr. Muhammad Afzal Hussain v. Additional District Judge, Lahore and 5 others 2015 CLC 1546; Nadeem Zafar v. Muhammad Ismaeel and others PLD 2012 Lah. 178; 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; Nishan Ahmad alias Zeeshan v. Civil Judge and others 2021 MLD 1613; Fayyaz Ahmed and 2 others v. Muhammad Azam 2020 YLR 1764; Asghar Ali v. Tanvir Ahmad and others 2018 MLD 1231; Ch. Muhammad Akram v. Mst. Zeba Zareen and others 2015 YLR 2514; Ghulam Hussain v. Malik Muhammad Niaz and others 2012 YLR 1464; Military Estate Officer, Hazara Circle and another v. Ch. Manzoor Hussain and 3 others 2010 CLC 1866 and Sher Bahadur and others v. Mir Akbar and others 2004 CLC 1348 ref.

Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74; Combined Investment (Pvt.) Ltd. v. Wali Bhai and others PLD 2016 SC 730; Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21; Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others 2014 SCMR 914; Messrs Essa Engineering Company (Pvt.) Ltd. and another v. Pakistan Telecommunication Company Limited and another 2014 SCMR 922; Muhammad Amir v. Khan Bahadur and another PLD 1996 SC 267; Talehmand and others v. Aisha Bibi PLD 1994 Lah. 399; Wajid Ali Khan v. Sheikh Murtaza Ali and 2 others 2003 SCMR 1416; Haji Jumma Khan v. Haji Zarin Khan PLD 1999 SC 1101; Mst. BOR Bibi and others v. Abdul Qadir and others 1996 SCMR 877; Iqbal and 6 others v. Mst. Rabia Bibi and another PLD 1991 SC 242; Mst. Azeemun Nisa Begum v. Ali Muhammad PLD 1990 SC 382; Allah Yar and others v. Additional District Judge and others 1984 SCMR 741 and Muhammad Iqbal Haider v. 1st ADJ, Karachi Central and others PLD 2018 SC 35 rel.

Allah Dad Kashif for Petitioner.

M. Fayyaz Chaudhry for Respondent No.3.

2024 Y L R 841

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

MUHAMMAD SHARIF and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 282, 580 and Murder Reference No. 45 of 2018, heard on 24th October, 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---Unnatural behavior of accused---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---Motive behind the occurrence was that the complainant went to forbid the accused persons from aerial firing---Prosecution case revolved around the statements of complainant/ brother and paternal uncle of the deceased---Eye-witness stated that only complainant went to forbid the accused persons from aerial firing---In said circumstances, the complainant should have also been the target of the assailants---Furthermore, according to the eye-witnesses, the complainant was in clear view, at a meager distance, from the assailants and unarmed whereas the accused, as many as six in total, were allegedly armed with various firearm weapons---Neither there was any dearth of ammunition nor that of intent and opportunity on the part of the accused or his co-accused for coming away with the complainant, who at the time of occurrence, was allegedly present at the place of occurrence and there did not exist any obstacle in the line of the sight of the accused and the place where the complainant was present---In such scenario, it was hard to believe that the complainant would have been shown the courtesy of not being harmed at all when he should have also been the target of the assailants---In the midst of firing by so many accused persons, the complainant did not receive even a single scratch on his body during the whole occurrence---If the complainant had been present in the view of the assailants, then he would not have been spared---Blessing the complainant, with such an incredible consideration and showing them such favour, the persons with whom the assailants had a direct dispute with, was implausible and opposed to natural behaviour of any accused---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal 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---Unnatural conduct of witnesses---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---Complainant stated that when firing was made, they laid down on the ground, however the accused persons did not come near them and did not make firing on them---If the prosecution witnesses were laying and cowering on the ground to save themselves from the bullets being fired, then how they were able to observe the firing made by each of the assailants and the consequential hitting of the deceased by one of the bullets---When according to the prosecution witnesses they were ducking and recoiling to save their lives during the occurrence, then there did not exist any possibility that they would have been able to witness and observe the maker of the fatal shot at the deceased---Hence, the prosecution witnesses did not witness the occurrence---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

Tariq Mehmood v. The State and others 2019 SCMR 1170; Rohtas Khan v. The State 2010 SCMR 566; Muhammad Farooq and another v. The State 2006 SCMR 1707 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

(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---Benefit of doubt---Night time occurrence---Source of light not established---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---According to the prosecution witnesses, the occurrence took place at about 11.00 p.m. on a cold winter night on 07.12.2013---However, admittedly, no source of light, which could have enabled the witnesses to have rightly identified the accused and also allowed the witnesses to have noted the individual roles of each and every accused present at the place of occurrence, at the time of occurrence, was produced by the witnesses during the investigation of case or even before the Trial Court---Prosecution witnesses claimed that they had witnessed the occurrence in the light of the electric bulbs which were lit at the place of occurrence---However, the said electric bulbs, which were allegedly lit at the place of occurrence and in the light of which the prosecution witnesses allegedly had witnessed the occurrence, were neither produced by the prosecution witnesses to the Investigating Officer of the case nor the Investigating Officer of the case, during his visit to the place of occurrence, took into possession any such electric bulbs---Non-production of the electric bulbs which were allegedly lit at the place of occurrence, at the time of occurrence was all the more a matter of disquiet for the reason that according to the prosecution witnesses the assailants were standing at a distance of as much as 18 karams from where the electric bulbs were allegedly lit---In that manner, according to the prosecution witnesses, the assailants were standing at a place 18 karams away from the stage and the availability and range of the electric bulbs lit at the place of the occurrence to have an effect at such a large distance was also not proved---In the scaled site plan of the place of occurrence as prepared by Patwari and the rough site plan of the place of occurrence as prepared by the Investigating Officer of the case, the presence of any light source lit at the place of occurrence had not been marked---Prosecution witnesses failed to establish the fact of such availability of light source and in absence of their ability to do so, the existence of such a light source could not be presumed---Absence of any light source had put the whole prosecution case in doubt---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

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), 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---Non-production of material witnesses---Effect---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---Both the prosecution witnesses admitted the presence of other witnesses, who had arrived at the place of occurrence to attend the marriage function---However, none of the said witnesses appeared before the Trial Court in support of the prosecution case---Due to failure of the prosecution to produce the said persons who had witnessed the occurrence, it could be presumed that had they been produced before the Trial Court, they would not have supported the prosecution case---Even the person whose marriage was being celebrated at the time of occurrence, was not produced before the Trial Court and was given up as an unnecessary witness---Similarly, the person who was injured during the occurrence also did not appear before the Trial Court in support of the prosecution case against the accused---Article 129(g) of the Qanun-e-Shahadat, 1984 provided that if any evidence available with the parties was not produced then it would be presumed that had that evidence been produced the same would have gone against the party producing the same---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 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---Presence of eye-witnesses at the spot not proved---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---Record showed that the names of both the eye-witnesses were neither mentioned in column No.4 nor at page 4 of the inquest report prepared with regard to deceased as being the witnesses who were present near the dead body at the time of preparation of the inquest report---Said fact also evidenced the absence of the eye-witnesses at the place of occurrence, at the time of occurrence---More grave was the fact that admittedly in the inquest report the role of the accused that it was his fire that had hit the deceased was not mentioned---Eye-witnesses, though claimed that after the occurrence deceased was taken to the hospital by the Emergency Service, Rescue 1122, however, neither during the investigation nor during the course of the trial, any proof was brought on record to support the said claim of the prosecution witnesses---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

(f) 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---FIR lodged after due deliberation---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---According to the Investigating Officer of the case, the time of getting the information of the occurrence by the police was mentioned as 11.00 p.m. on 07.12.2013 in the inquest report, whereas the oral statement of complainant was recorded by Investigating Officer at Grid Chowk at 01.10 a.m. on 08.12.2013---Furthermore, the oral statement of complainant was recorded by Investigating Officer at Grid Chowk while he was on his way to the Police Station---FIRs which were not recorded at the police station suffered from the inherent presumption that the same were recorded after due deliberation---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

Arshad Khan v. The State 2017 SCMR 564; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Muhammad Asif v. The State 2008 SCMR 1001 and Abdul Jabbar alias Jabbari v. The State 2017 SCMR 1155 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 weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of twelve hours and forty five minutes in conducting postmortem---Consequential---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---Occurrence took place at about 11.00 p.m. on 07.12.2013, the post-mortem examination of the dead body of the deceased was conducted after much delay at about 11.45 a.m. on 08.12.2013---According to Medical Officer, he on 08.12.2013 at about 11.45 a.m. conducted the post-mortem examination of the dead body of deceased after about 12 hours and 45 minutes of the occurrence---No explanation was offered to justify the said delay in conducting the post-mortem examination of the dead body---Not only the post-mortem examination of the dead body was delayed by as many as 12 hours and 45 minutes, but also the dead body was brought to the hospital at 11.35 a.m. on 08.12.2013---Inordinate and unexplained and substantial delay in the post-mortem examination of the dead body and submission of the police papers to the Medical Officer clearly established that the witnesses claiming to have seen the occurrence or having seen the accused escaping from the place of occurrence had not seen the occurrence and were not present at the time of occurrence and the delay in the post-mortem examinations was used to procure their attendance and formulate a dishonest account of the occurrence, after consultation and planning---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR

327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR

956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068

rel.

(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 weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence and live bullets on the pointation of accused---Inconsequential---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---Recovery of the Kalashnikov rifle and five live bullets from the accused could not be relied upon as the Investigating Officer did not join any witness of the locality during the said recovery, which action of his was in clear violation of the provisions of the S. 103, Cr.P.C and therefore the evidence of the recovery of the Kalashnikov rifle and five live bullets could not be used as incriminating evidence against the accused, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence---Moreover, the recovered Kalashnikov rifle and five live bullets were never sent to the office of the Forensic Science Agency, for their comparison with the empties collected from the place of occurrence---Moreover, even report of the Forensic Science Agency was not brought on record that the recovered Kalashnikov rifle and five live bullets were indeed a weapon in working condition and that bullets could be fired in the same---In that manner, the recovery of the Kalashnikov rifle and five live bullets from the accused did not prove any fact in issue or relevant fact---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

(i) 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---Motive not proved---Accused were charged for committing murder of the brother of the complainant by firing and also causing firearm injury to the owner of the sound system---Motive of the occurrence as stated by the eye-witnesses was that after the complainant had an altercation with the accused over stopping the accused and his companions from firing at the place of occurrence, the assailants fired at the witnesses, however, it hit the deceased---After scrutinizing the statements of the prosecution witnesses, the motive as alleged could not be proved---It was admitted by the prosecution witnesses themselves that the accused had no motive to commit the qatl-i-amd of the deceased, rather his altercation had taken place with the complainant---During the whole occurrence, despite the presence of six armed assailants, the complainant was not even injured---Had the motive being true, then the complainant would not have been let off---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 committed the qatl-i-amd of the deceased---Thus, there was an evocative muteness in the prosecution case with regard to the motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Circumstances established that the prosecution failed to prove its case against the accused beyond shadow of doubt---Appeal was allowed accordingly.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(j) Criminal trial---

----Absconsion---Scope---Abscondence of an accused can be used as a corroborative piece of evidence, which can not be read in isolation but it has to be read along with the substantive pieces of evidence.

Asadullah v. Muhammad Ali PLD 1971 SC 541; Rasool Muhammad v. Asal Muhammad 1995 SCMR 1373; Muhammad Sadiq v. Najeeb Ali 1995 SCMR 1632; Muhammad Khan v. State 1999 SCMR 1220; Gul Khan v. State 1999 SCMR 304; Muhammad Arshad v. Qasim Ali 1992 SCMR 814; Pir Badshah v. State 1985 SCMR 2070; Amir Gul v. State 1981 SCMR 182; Muhammad Farooq and another v. The State 2006 SCMR 1707; Nizam Khan and 2 others v. The State 1984 SCMR 1092 and Rohtas Khan v. The State 2010 SCMR 566 rel.

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

----S. 302---Qatl-i-amd--- Admission of accused---Scope---If the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he has taken a plea and has thereby admitted killing the deceased.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

(l) Criminal trial---

----Medical evidence--- Conviction---Scope---Conviction can not be upheld on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(m) Criminal trial---

----Benefit of doubt---Principle---For giving the benefit of the doubt it is not necessary that there should be many circumstances, rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

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

----S. 417---Appeal against acquittal---Presumption---Once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the court competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or is perverse.

Muhammad Inayat v. The State 1998 SCMR 1854 and Mst. Sughran Begum and another v. Qaiser Pervaiz and others 2015 SCMR 1142 rel.

James Joseph for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Muhammad Usman Sharif Khosa for the Complainant.

2024 Y L R 871

[Lahore (Multan Bench)]

Before Sohail Nasir, J

ALLAH BAKHSH---Appellant

Versus

GHULAM MUSTAFA and another---Respondents

Regular Second Appeal No. 213 of 2017, heard on 14th September, 2021.

Specific Relief Act (I of 1877)---

----S. 12---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Suit for specific performance of agreement to sell---Suit filed by the plaintiff regarding agreement to sell/ transfer of proprietary rights qua suit property was decreed in his favour---Appeal filed by the respondents was allowed---Validity---Appellant's case was that respondent No. 1 entered into an agreement to sell with him on 02.08.2010---Document could not be registered as the certified copy of Jamabandi was not with the seller, thus the document was registered on 10.08.2010---Allegedly, respondent No. 1 transferred the disputed land to his wife/respondent No. 2 through gift mutation in lieu of dower---Said mutation was sanctioned on 18.08.2010---Claim of the respondent No. 1 was that he never entered into any agreement to sell or thumb marked any document---Record showed that the first appellate Court only on the ground that second marginal witness was not produced had reversed the decision of the Trial Court---Said Court did not take notice of the fact that the other witness was the first cousin of respondent No. 1, who had connived with him therefore he was not brought in witness box---First appellate Court further skipped the fact that stamp vendor who was also the author of the agreement could be validly considered a witness to the transaction---Statement of author of the document made it clear that he scribed the agreement at the desire of both the parties, it was read over to both of them, they accepted it as correct and then signed and thumb marked---Agreement in addition to the parties and the witnesses was also signed by the said stamp vendor, which he identified---As for as claim of the respondent No. 1 that he gifted the disputed land to his wife/respondent No. 2 in lieu of dower was concerned, the marriage between respondents had taken place in 2005---Question was what happened all of a sudden that respondent No. 1 decided to transfer the disputed land to respondent No. 2; what necessitated that urgently matter of gift was reported on 05.08.2010 and it was finally attested on 18.08.2010 exactly in the same days when agreement to sell was executed between both the sides on 02.08.2010 and was registered on 10.08.2010---Such fact spoke about mala fide conduct of both the respondents--- Respondents never bothered to produce original Nikah Nama but tendered a certified copy thereof, which was minutely perused by the Trial Court which observed that the handwriting showing entry in column 17 was entirely different from the handwriting of remaining document---Pursuant to Rule 10(2) of the West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, the duplicate and triplicate of the Nikah Nama filled were to be supplied to bride and bridegroom respectively, so the question arose that why none of those were produced by the respondents if they were true in their claim---Both the respondents in connivance with each other managed a so-called story and suppressed the best available evidence that was the duplicate or triplicate Nikah Nama, therefore under Art. 129(g) of the Qanun-e-Shahadat, 1984, it would be safely presumed that the said document was not favoring them---Appeal was allowed, in circumstances.

Madan Gopal and 4 others v. Maran Bepari and 3 others PLD 1969 SC 617; Nazir Ahmad and another v. M. Muzaffar Hussain 2008 SCMR 1639 and Sajjad Ahmad Khan v. Muhammad Saleem Alvi and others 2021 SCMR 415 rel.

Muhammad Akmal Khan for Appellant.

Nemo for Respondents.

2024 Y L R 903

[Lahore]

Before Rasaal Hasan Syed, J

JAN MUHAMMAD RAMZAN---Appellant

Versus

RETURNING OFFICER, CONSTITUENCY PP-146, LAHORE-II and another---Respondents

Election Appeal No. 1105 of 2024, decided on 6th January, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 63, 64(3) & 134---Election dispute---Nomination papers, acceptance of--- Bank account--- Appellant's/ candidate's nomination papers were rejected as he in his nomination papers did not specify particulars of bank account opened for purposes of documenting election expenses---Validity---Certified copy of account statement was handed over to Returning Officer while photocopy was retained on the file of Election Tribunal---Primary basis of opening such account as given in S. 134 of Elections Act, 2017, was to account for election expenses as certain ceiling of expenses had to be maintained by candidates in conducting their campaign and making expenses related to the elections---From account statement it was evident that account had already been dedicated, therefore, mere non-mentioning in the form was a deficiency which could have been rectified by entering detail of the account in relevant column by Returning Officer and appellant could be given an opportunity which had not been done---Order of Returning Officer was legally untenable and was set aside, resultantly nomination papers were accepted---High Court directed the concerned Returning Officer to reflect name of appellant/candidate in revised list of validly nominated candidates in discharge of mandate of S. 64(3) of Elections Act, 2017---Appeal was allowed, in circumstances.

Yasir Aftab v. Irfan Gull and others 2023 SCMR 206 rel.

Muhammad Irfan, Wajid Ali and Sibghat Ullah Khan for Appellant along with appellant, proposer and seconder in person.

2024 Y L R 926

[Lahore]

Before Ch. Muhammad Iqbal, J

Syed TAZEEB ABBAS and others---Petitioners

Versus

BASHIR AHMED and others---Respondents

Civil Revision No. 1015 of 2015, heard on 9th January, 2023.

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

----Art. 79---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Registered document---Proof---Plaintiff claimed that registered exchange deed, and subsequent mutation were illegal to the extent of certain part/share of the Khasra (Khasra-in-question)---Suit was dismissed by the Trial Court which judgment was maintained by the Appellate Court---Validity---Registered exchange deed, in the present case, was an admitted document, in consequence of which a mutation in the year 1981 was incorporated in the revenue record---Admitted facts need not to be proved---Even otherwise, the petitioners/plaintiff failed to bring on record any solid, concrete and trustworthy oral as well as documentary evidence in support of their assertions made in the plaint regarding concerned Khasra---As such the Courts below rightly passed the impugned judgments and decrees and no illegality had been committed---Revision was dismissed, in circumstances.

Mst. Rehmat and others v. Mst. Zubaida Begum and others 2021 SCMR 1534 ref.

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

----Art. 120---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Limitation---Registered exchange deed was executed in the year 1981 whereas the petitioners filed suit for declaration in the year 2009 after lapse of 28 years and 24 days---Under Art. 120 of the Limitation Act, 1908, the maximum period for filing the suit for declaration was six years as such the suit of the petitioners was barred by time and no convincing reason had been furnished for delayed filing of the suit---Suitors were under legal obligation to explain the delay of each and every day but no such convincing reasons of delay had been furnished to surmount the barrier of limitation in said regard, thus the non-furnishing of the explanation of delay disentitled the suitors for condonation of the delay---Revision was dismissed, in circumstances.

Agha Syed Mustaque Ali Shah v. Mst. Bibi Gul Jan and others 2016 SCMR 910 ref.

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

----S. 115---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Concurrent findings--- Revisional jurisdiction of the High Court---Scope---Suit filed by the petitioners was dismissed by the Trial Court which judgment and decree was maintained by the Appellate Court---Validity---Concurrent findings of fact against the petitioners/plaintiffs did not call for any interference by the High Court in exercise of its revisional jurisdiction---Revision filed by the plaintiffs was dismissed, in circumstances.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 ref.

Masood Sadiq for Petitioners.

Usman Nassir Awan for Respondents Nos.10 to 12.

2024 Y L R 958

[Lahore]

Before Rasaal Hasan Syed, J

NASEER AHMAD QADRI---Appellant

Versus

MEER MUHAMMAD NAWAZ and another---Respondents

Election Appeal No. 378 of 2024, decided on 6th January, 2024.

Elections Act (XXXIII of 2017)---

----S. 63---Election dispute---Nomination papers, rejection of---Proposer not from the constituency---Effect---Appellant/ candidate was aggrieved of rejection of his nomination papers as his proposer was not from the constituency---Validity--- After delimitation process, constituencies were clearly defined, and lists of registered voters/electoral rolls for all constituencies were available in black and white---Due diligence by any man of prudence would enable such error to be avoided which even otherwise could be well pre-empted by filing up to five nomination papers with different proposers and seconders in case of any ambiguity and this was not so done by appellant/candidate---Election Appellate Tribunal declined to interfere in order passed by Returning Officer, which was unexceptionable---Appeal was dismissed, in circumstances.

Rana Muhammad Tajammal Hussain v. Rana Shaukat Mahmood PLD 2007 SC 277; Sharafat Ali and another v. D.R.O. and others 2008 SCMR 539; Jamshed Iqbal Cheema v. The Election Appellate Tribunal and 19 others 2022 CLC 463 and Ijaz v. Returning Officer PP-115, Faisalabad W.P. No.223502 of 2018 ref.

Muhammad Arfan Afzal Ch. for Appellant.

2024 Y L R 989

[Lahore]

Before Shahid Bilal Hassan, J

ROSHAN IQBAL---Appellant

Versus

NAZAR MUHAMMAD and others---Respondents

Civil Revision No. 2584 of 2014, heard on 19th October, 2023.

Specific Relief Act (I of 1877)---

----Ss. 39 & 42---Civil Procedure Code (V of 1908), S. 115---Suit for cancellation of document and declaration---Concurrent findings of facts by two Courts below---Misreading and non-reading of evidence--- Revisional jurisdiction of High Court---Suit filed by respondents/ plaintiffs was concurrently decreed by two Courts below on basis of certain discrepancies in evidence of petitioners/ defendants--- Validity---Certain short-comings and contradictions in depositions of defence witnesses, were natural and were not fatal to disbelieve the same---Parties had to stand on their own legs and any shortcoming or discrepancy in evidence of rival party could not extend benefit to the other party---Respondents failed to discharge initial burden and they had also failed to show any ill-will and mala fide on the part of revenue officer and officials, who were independent witnesses and supported the stance of petitioner/ defendant, which prompted them to depose against respondents/plaintiffs---Courts below failed to adjudicate upon the matter by appreciating law on the subject and had misread evidence of the parties---High Court was vested with authority and ample power to undo concurrent findings while exercising revisional jurisdiction under S. 115, C.P.C.---High Court in exercise of revisional jurisdiction set aside judgments and decrees passed by both the Courts below and dismissed the suit instituted by respondents / plaintiffs---Revision was allowed, in circumstances.

Sh. Fateh Muhammad v. Muhammad Adil and others PL D 2008 SC 82; Hyder Ali Bhimji v. Additional District Judge Karachi South and another PLD 2012 SC 279; Muhammad Aslam and others v. Muhammad Anwar 2023 SCMR 1371 and Abdul Ghafoor and others v. Muhammad Murad and others 2022 CLC 1713 ref.

Nazim-Ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24; Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCM R 1630; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001 and Habib Khan and others v. Mst. Bakhtmina and others 2004 SCMR 1668 rel.

Abdul Qadus Rawal for Petitioner.

Sh. Usman Karim ud Din, Rana Toqeer, Ghulam Abbas Haral and Barrister Faridoon Kamran for Respondents Nos.1 to 4.

Ch. Abdul Salam, Taqi Hassan and Nusrat Ali Joiya for Respondent No.5.

2024 Y L R 1008

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

Abdul Rehman---Petitioner

Versus

The State and another---Respondents

Criminal Miscellaneous Nos. 6069-B and 6090-B of 2023, decided on 26th September, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 21 & 24---Harming a person's reputation and privacy---Post-arrest bail, grant of---Evidentiary material against the accused, deficiency of---Prohibitory clause of the S. 497(1) of the Criminal Procedure Code, 1898, not attracted---Allegations against the petitioners/accused (two in number) was that they intentionally exhibited and transmitted information harming the reputation and privacy of sister of the complainant---Validity---An internet protocol address (IP address) is a numerical label assigned to each device connected to a computer network that uses the internet protocol for communication---An IP address serves two principal functions of network interface identification and location addressing---In the present case, no request was made to the concerned companies (Meta/Facebook and WhatsApp) for providing the data so as to prima facie connect the petitioners with the commission of offences or to block the alleged account from disseminating the outrageous material---Alleged offences of the Prevention of Electronic Crimes Act, 2016 did not fall within the parameters of the prohibitory clause of S. 497(1) of the Criminal Procedure Code, 1898 as the offences under Ss. 21 & 24 of the Prevention of Electronic Crimes Act 2016, apart from fine, had been made punishable with imprisonment for a term which may extend to five years and three years respectively ; and grant of bail is a right and refusal is an exception in such like cases---Prosecution was not equipped with any evidentiary material to bring the case of the petitioners within the exception for refusing grant of bail---Petitioners were behind bars since their arrest, and were no more required by the Federal Investigation Agency for further investigation---There was no proof available with the prosecution that the petitioners would either abscond or tamper with the evidence, hence further incarceration of the petitioners would serve no purpose at all---Bail was allowed to the petitioners, in circumstances.

Ahmad Khalid Butt v. The State and another 2021 SCMR 1016; Ahmad Shahzad v. The State and another 2023 SCMR 679; Muhammad Ajmal v. State and another 2023 SCMR 274 and Fakhar Zaman v. The State 2021 SCMR 1815 ref.

Areeb Abdul Khafid for Petitioner (in Criminal Miscellaneous No. 6069-B of 2023).

Muhammad Imran Shehzad for Petitioner (in Criminal Miscellaneous No. 6090-B of 2023).

Muhammad Iqbal Sargana, Assistant Attorney General for Pakistan with Tariq Mehmood Sipra, Assistant Director, FIA Multan for Respondents.

Order

SADIQ MAHMUD KHURRAM, J.---By way of this order, Crl. Misc. No.6069-B of 2023, titled "Abdul Rehman v. The State and another" and Crl. Misc. No.6090-B of 2023, titled "Muhammad Tanveer v. The State and another", arising out of the same FIR., are being decided.

1. Through the Crl. Misc. No.6069-B of 2023 field under section 497, Cr.P.C., the petitioner namely Abdul Rehman Malik seeks post arrest bail in case FIR No. 116 of 2023 dated 25.08.2023 registered in respect of offences under sections 21 and 24 of the Prevention of Electronic Crimes Act, 2016 at the Police Station FIA Cyber Crime Reporting Centre, Multan. Through the Crl. Misc. No.6090-B of 2023 field under section 497, Cr.P.C., the petitioner, namely Muhammad Tanveer seeks post-arrest bail in the same case.

2. The allegations as against the petitioners namely Abdul Rehman and Muhammad Tanveer, culled from the evidentiary material produced before the Court are that they intentionally exhibited and transmitted information harming the reputation and the privacy of Fatima Javaid the sister of the complainant of the case and engaged in the offence of Cyber stalking.

3. I have heard the arguments of the learned counsel for the petitioners, the learned assistant Attorney General for Pakistan and perused the record with their able assistance.

4. These are post-arrest bail petitions and deeper appreciation of the evidentiary material is not allowed at this stage. It is discernible from the perusal of the record that though the Investigating Officer of the case recovered mobile phone devices from the petitioners used by them to post the material on the WhatsApp Messenger however, no effort was made by the Investigating Officer of the case for getting the User Basic Subscriber Information and IP logs of each activity along with confirmation of account of the petitioners from the Meta Platforms, Inc., Menlo Park, California, United States of America (formerly known as Facebook, Inc., and The Facebook, Inc.) the company owning the WhatsApp Messenger application. No investigation was conducted so as to procure information regarding the IP address assigned to the devices of the petitioners which they had allegedly used to post the material on the WhatsApp Messenger. An internet protocol address (IP address) is a numerical label assigned to each device connected to a computer network that uses the internet protocol for communication. An I.P. address serves two principal functions of network interface identification and location addressing. No request was made to the Meta Platforms, Inc., Menlo Park, California, United States of America for providing the data so as to prima facie connected the petitioners with the commission of the offences. The Investigating Officer did not collect any of this information. No request was sent to the WhatsApp Messenger administrators to block the alleged account from disseminating the outrageous material. Moreover, the offences under sections 21 and 24 of the Prevention of Electronic Crimes Act, 2016 do not fall within the parameters of the restraining clause of section 497(1), Code of Criminal Procedure, 1898. The offence made punishable under section 21 of the Prevention of Electronic Crimes Act, 2016 has been made punishable with imprisonment for a term which may extend to five years or with fine which may extend to five million rupees or with both and the offence made punishable under section 24 of the Prevention of Electronic Crimes Act, 2016 has been made punishable with imprisonment for a term which may extend to three years or with fine which may extend to one million rupees. Grant of bail is a right and refusal is an exception in such like cases. The august Supreme Court of Pakistan in the case of "Ahmad Khalid Butt v. The State and another" (2021 SCMR 1016) has held as under:-

"2. After hearing the learned counsel for the parties at length and perusal of available record, it has been observed by us that the offences, alleged in the FIR fall outside the prohibitory clause of section 497, Code of Criminal Procedure, maximum punishment whereof is five years and three years respectively. The petitioner is behind the bars for the last about four months. Even as per contents of FIR, he is not the principal accused. Grant of bail in such like cases is a rule and refusal an exception. No excep-tional circumstances have been pointed out to refuse the concession of bail to the petitioner."

The august Supreme Court of Pakistan in the case of "Ahmad Shahzad v. The State and another" (2023 SCMR 679) has held as under:-

2024 Y L R 1052

[Lahore]

Before Muhammad Amjad Rafiq, J

IFTIKHAR AHMAD through Mukhtar Ali---Petitioner

Versus

The State and another---Respondents

Criminal Revision No. 340 of 2013, decided on 6th June, 2023.

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

----Ss. 324, 337-F(v), 334 & 34---Police Order (22 of 2002), Art. 155-C---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, itlaf-i-udw, common intention, misconduct by the Police Officer---Appreciation of evidence---Presence of the complainant at the place and time of occurrence doubtful---Prosecution case was that due to indiscriminate firing by the accused and his two brothers, two persons of the complainant party received injuries which resulted into amputation of leg of one injured and fracture of leg of other injured---Injured though deposed that after 15/20 days of the occurrence when he read FIR, he came to know that complainant got lodged FIR against three persons, wherein, allegation of firing and causing injuries was leveled against all the three accused, however, he did not disclose to the complainant that firing was not made by all the three accused and it was only the petitioner who made firing and FIR had been wrongly registered against all the accused---In the light of said circumstances, the presence of complainant at the place of occurrence was doubtful and even his statement was contrary to the statement of injured witnesses as well as the other eye-witness who stated that only two injured were available at the crime scene and reviling continued for one or two minutes and after sustaining injuries by the injured persons, police took them to the hospital within half an hour---Revision petition was dismissed, in circumstances, with modification in conviction and sentence.

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

----Ss. 324, 337-F(v), 334 & 34---Police Order (22 of 2002), Art. 155-C---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, itlaf-i-udw, common intention, misconduct by the Police Officer---Appreciation of evidence---Defence plea---Prosecution case was that due to indiscriminate firing by the accused and his two brothers, two persons of the complainant party received injuries which resulted into amputation of leg of one injured and fracture of leg of other injured---Admittedly, two persons received firearm injuries at the hands of present petitioner and whether his intention was to kill them, the defence had taken the stance that there was exchange of hot words between the petitioner and injured persons and, during this altercation, they tried to snatch official rifle from the petitioner which suddenly went off during grappling, otherwise, the petitioner had no intention to inflict injuries---Said fact of using filthy language against each other had been admitted by the injured witnesses during their cross-examination---Moreover, fire hit the legs from a short distance, therefore, in such circumstances possibility could not be brushed aside that during grappling rifle suddenly went off and hit the legs of injured---Medical Officer, who medically examined both the injured, observed 'blackening' around injury of one injured and on injury of other injured---Such observation of Medical Officer regarding blackening established the fact that there was a short distance between petitioner and injured and they might have received injuries during grappling---Petition was dismissed, in circumstances, with modification in conviction and sentence.

(c) Criminal trial---

----Admission and confession---Scope---Admission and confession made by the accused should be considered as a whole.

Ali Ahmad and another v. The State and others PLD 2020 SC 201 rel.

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

----Ss. 324, 337-F(v), 334 & 34---Police Order (22 of 2002), Art. 155-C---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, itlaf-i-udw, common intention, misconduct by the Police Officer---Appreciation of evidence---Prosecution case was that due to indiscriminate firing by the accused and his two brothers, two persons of the complainant party received injuries which resulted into amputation of leg of one injured and fracture of leg of other injured---Record showed that the injuries caused by the petitioner were established but there was no intention of the petitioner to cause such injuries and occurrence was result of a hustle bustle and grappling wherein rifle of accused/ petitioner went off---Such grappling was comprehensible when there existed an enmity between the parties; therefore, injuries were caused by mistake (khata) attracting S. 337-I, P.P.C., and the conviction and sentence of the petitioner under S. 337-F(v), P.P.C., was not sustainable---Conviction under S. 324, P.P.C., was attracted only in case of attempt to commit qatl-i-amd but when there was no evidence of intention or knowledge, question of attempt to commit qatl-i-amd did not arise---Since there was no intention of the petitioner in causing injuries, therefore, in the absence of intention, S. 324, P.P.C., would not be attracted, thus, the conviction under S. 324, P.P.C., and also the sentence recorded thereunder were set aside---As regards the conviction under S. 334, P.P.C., though itlaf-i-udw was result of injury but when it was caused by mistake, offender was liable only to Arsh for the injury under S. 337-I, P.P.C---Thus, conviction and sentence against the petitioner imposed by the Trial Court under S. 334, P.P.C., was set aside and accused/petitioner was convicted under S.337-I, P.P.C., and sentenced to Arsh---Article 155(1)(c) of Police Order, 2002, required sanction of prosecution for trial of such offence which sanction was also missing in this case, therefore, it was not incumbent upon Trial Court to try such offence and to pass sentence, therefore, conviction and sentence under Art. 155(1)(c) of Police Order, 2002, were also set-aside---Petition was dismissed, in circumstances, with modification in conviction and sentence.

Zubair Khalid Chaudhry for Petitioner.

Ms. Noshe Malik, D.P.G. for the State

Nemo for the Complainant:

2024 Y L R 1063

[Lahore]

Before Malik Shahzad Ahmad Khan, J

KAMRAN ALI alias HANNAN---Appellant

Versus

The STATE through Prosecutor General Punjab and another---Respondents

Criminal Appeal No. 28939-J of 2022 and Crl. Misc. No. 01 of 2023, decided on 6th December, 2023.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b), 324, 337-D, 148 & 149-Qatl-i-amd, attempt to commit qatl-i-amd, jaifah, rioting armed with deadly weapons, unlawful assembly---Suspension of sentence---Delay in disposal of appeal---Petitioner had not been assigned any injury on the body of the deceased and he had been attributed the role of inflicting churri blow on the abdomen of injured---As per report submitted by the jail authorities, the petitioner had already undergone a period of about 08 years 02 months and 06 days and the remaining portion of his sentence was 01 year 09 months and 24 days, meaning thereby that the petitioner had undergone the major portion of his sentence---Main criminal appeal of the petitioner had already been admitted for regular hearing but there was no possibility of early fixation and decision of the main appeal filed by the petitioner before the Court as the same pertained to the year 2022---Nothing was on record to show that the petitioner contributed towards the delay in decision of his main appeal---If the sentence awarded to the petitioner was not suspended then there was likelihood that he might serve out his entire sentence before the decision of main case on merits and it would amount to awarding the petitioner punishment in advance---Petition was allowed and sentence of the petitioner was suspended and he was released on bail, in circumstances.

Makhdoom Javed Hashmi v. The State 2008 SCMR 165; Adnan A. Khawaja v. The State 2008 SCMR 1439 and Anwar-ul-Haq v. National Accountability Bureau PLD 2009 SC 388 rel.

Naveed Inayat Malik and Tayyab Naveed Malik, for Petitioner.

Nisar Ahmad Virk, Deputy Prosecutor General for the State.

2024 Y L R 1073

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram, J

Mst. ARZU---Petitioner

Versus

DISTRICT POLICE OFFICER, KHANEWAL and 3 others---Respondents

Writ Petition No. 12826 of 2023, decided on 11th September, 2023.

Criminal Procedure Code (V of 1898)---

----S. 491---Constitution of Pakistan, Art. 199---Constitutional petition---Habeas corpus---Adoption---Islamic law---Petitioner through Constitution petition sought custody of her minor son---Record showed that the minor was put up for adoption and he was adopted by respondent No. 3 and started to live with him---Petitioner claimed herself to be the biological mother of minor and sought his custody---Maternity of the minor was determined from the Forensic Science Agency---According to the report of Forensic Science Agency, the conclusion, which had been drawn after the DNA analysis, was that the minor was the biological child of the petitioner---Adoption of a child with the purpose of providing shelter to him was virtuous and carried much reward for welfare of the child but adoption in Islam had no legal consequence---Child should be attributed to the natural parents, and not to the father or mother who had adopted him---Adoption did not create a new legal relationship which did not exist before adoption---Adoption under 'Muslim Law' did not create any kindred relationship between the adopted child and adoptive parent, whosoever---Therefore, the Court was left with no other option but to allow the petition and to hand over the custody of minor to the petitioner, who had been determined to be the biological mother of the child/minor---However, Guardian Court was the final arbitrator to adjudicate upon the question of custody of child but that did not mean that in exceptional cases when a person had no remedy to regain the custody pending adjudication by the Guardian Court---In exceptional cases where the High Court found that the interest and welfare of the minor demanded that the minor be committed immediately to the custody of his biological mother, the Court could pass an appropriate order under Art. 199 of the Constitution directing the custody of a minor to the biological mother as an interim measure pending final decision by the Guardian Court---Petition was allowed, in circumstances.

Mirjam Aberras Lehdeaho v. S.H.O., Police Station Chung, Lahore and others 2018 SCMR 427; Ahmed Sami and 2 others v. Saadia Ahmed and another 1996 SCMR 268; Shaukat Masih v. Mst. Farhat Parkash and others 2015 SCMR 731; Muhammad Khalil-ur-Rehman v. Mst. Shabana Rahman and another PLD 1995 SC 633 and Mst. Nadia Perveen v. Mst. Almas Noreen and others PLD 2012 SC 758 rel.

Mahar Haseeb Qadir with the Petitioner.

Mushtaq Ahmad Chohan, Assistant Advocate General Punjab with Munawar, Inspector.

2024 Y L R 1082

[Lahore]

Before Tariq Saleem Sheikh, J

LIAQUAT ALI---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 7517-B of 2023, decided on 29th March, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 7 & 9(2)---Transportation of narcotic---Bail, refusal of ---Accused was found in possession of ten kilograms ketamine, a psychotropic substance--- Federal Government, exercising the powers conferred under S. 2(za) of the Control of Narcotic Substances Act, 1997 (CNSA), declared ketamine hydrochloride, a psychotropic substance by inserting it at Serial No. 39-A in the Schedule to the CNSA vide SRO No. 446(I)/2020 dated 6.4.2020---However, it withdrew that SRO ab initio vide Letter No. 13-20/2014-Policy-1 dated 21.8.2020---Subsequently, by SRO 1350(I)/2021 dated 15.10.2021, the Federal Government again declared that ketamine and its salts would be a psychotropic substance for the purpose of the CNSA by placing it at Serial No. 39-A in the Schedule thereof---On 16.4.2021, when the petitioner's shipment landed in Pakistan, its import was prohibited under the CNSA---However, it could not be sanctioned due to Letter No. 13-20/2014-Policy-1 dated 21.8.2020---In light of the law and jurisprudence outlined above, SRO 1350(I)/2021 dated 15.10.2021 also could not be applied retrospectively to punish the petitioner---Article 12(1) of the Constitution protected him---Section 7 of the CNSA prohibited the transportation of any narcotic drug, psychotropic substance or controlled substance except when it was in conformity with the rules made under S. 7(2) and was in accordance with the conditions of any permit, licence or authorization required to be obtained under those rules---Any contravention of S. 7 was an offence under S. 9---Prosecution witnesses stated that ANF seized ketamine from the petitioner and he had not produced any permit for such transportation to date---Prima facie, petitioner had committed an offence under S. 7 of the CNSA read with S. 9 thereof---Defence plea of petitioner that the ANF seized the chemical from his factory would be considered at the trial---Bail application was dismissed, in circumstances.

Rao Shiv Bahadur Singh and another v. The State of Vindhya Pradesh AIR 1953 SC 394; Sukhdev Singh v. State of Haryana AIR 2013 SC 953; Nabi Ahmed and another v. Home Secretary, Government of West Pakistan, and others PLD 1969 SC 599; Income Tax Officer (Investigation) Circle I, Dacca and another v. Sulaiman Bhai Jiwar PLD 1970 SC 80; Dr. Muhammad Safdar v. Edward Henry Louis PLD 2009 SC 404; Messrs Ghani Herbal Pharma Laboratories v. Secretary and others PLD 2005 Lah. 93 and Khan Asfand Yar Wali and others v. Federation of Pakistan and others PLD 2001 SC 607 rel.

Muhammad Ahsan Bhoon with Hafeez-ur-Rehman Chaudhry for the Petitioner.

2024 Y L R 1099

[Lahore]

Before Malik Shahzad Ahmad Khan and Farooq Haider, JJ

ASIF ALI and others---Petitioners

Versus

The State and another---Respondents

Criminal Appeals Nos. 1503, 1574, Criminal Revision No. 3600 and Murder Reference No. 42 of 2023, decided on 28th September, 2023.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Last seen evidence---Accused were charged for committing murder of the nephew of complainant after abducting him---Last seen evidence had been produced by two witnesses---Said witnesses claimed that they were working as property dealers and on 09.09.2020 went to place "MF" in connection with some property---On their return, said witnesses stopped motorbike at cigarette Corner to purchase cigarette where they saw accused persons and deceased having cold drinks---However, said witnesses neither could tell the distance between their village and place "MF" where they had gone nor could they prove the cause for which statedly they had gone there---Site plan produced by the prosecution during trial of the case did not reflect presence of said witnesses at stated place as well as of the accused persons and deceased of the case "with cold drinks" and even any shop/stall/ Khokha of cold drinks/cigarettes was not mentioned therein---Said site plan also did not show availability of any bulb there and even any shop keeper of shop/ stall/Khokha of cold drinks/cigarettes neither joined the investigation nor was produced during trial of the case---Any other site plan showing place where both witnesses saw accused persons and deceased with cold drinks was not available on record---Both said witnesses even did not produce their motorcycle during trial of the case---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal was accordingly allowed.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Chance witnesses---Presence of witnesses of last seen evidence at the venue doubtful---Accused were charged for committing murder of the nephew of complainant after abducting him---Both the witnesses of last seen evidence were not resident of said place i.e. Q.B. Link Canal or its surrounding, so, they were "chance witnesses" who could not establish any plausible reason regarding their presence at relevant "time and place" of occurrence---Furthermore, said witnesses were introduced at belated stage in complaint filed in June, 2021---Dead body of the deceased was not found at the place where statedly both the said witnesses saw the accused persons with deceased---So, testimony of both the witnesses was not confidence inspiring---Even otherwise, evidence of last-seen being weakest type of evidence required strong corroboration which was missing in the case---Circumstances established that the prosecution had present failed to prove its case against the accused persons beyond any shadow of doubt---Appeal was accordingly allowed.

Altaf Hussain v. Fakhar Hussain and another 2008 SCMR 1103 and Muhammad Abid v. The State and another PLD 2018 SC 813 rel.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Ocular account not proved---Accused were charged for committing murder of the nephew of complainant after abducting him---Ocular account of the incident had been furnished by two witnesses---Said witnesses claimed that on 09.09.2020 they had gone for meeting with Mr. "S", who was not available in his house; they waited for him but he did not come back and his brother Mr. "N" met them there and thereafter they came back to their house on a car---Said witnesses reached on bridge Q.B. Link Canal where they saw in the light of their car that accused persons were scuffling with unknown person aged about 21/22 years and in their view, accused persons caught hold of arms of unknown person, pushed him in Q.B. Link Canal; they identified accused persons in the light of their car and it came into their knowledge that complainant and his family members were searching the deceased; and they called the complainant and told him about said fact---Prosecution did not produce Mr. "N" to establish the fact that both said witnesses had gone to met him on said day---Only source of identification of the accused persons as well as victim was "lights of car" but said car had not been produced during trial of the case---Furthermore, said witnesses did not raise any alarm/hue and cry and in that regard and they did not try to save the victim or overpower/ apprehend the accused persons although accused persons were just two in number and were not armed with any weapon and if those witnesses, who were also two in number, had intervened for saving the victim, then they along with victim could have become three in number and it would have been very easy for them to rescue the victim and overpower/ apprehend the accused but they did not do so rather in their view, they let the accused persons complete their task i.e. throwing the victim in the canal and remained there as silent spectators---Furthermore, said witnesses did not apprehend the accused persons even after the occurrence and let them escape from there on their motorbike---Although witnesses had a car with them but they neither stopped the accused persons nor chased them---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal was accordingly allowed.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witnesses of ocular account---Accused were charged for committing murder of the nephew of the complainant after abducting him---Record showed that Police Post was very much near from the spot i.e. just at a distance of 25/30 meter---Said witnesses did not call for help from said Police Post---Copy of any written application or intimation or statement about giving intimation regarding the occurrence by both witnesses to said Police Post had not been produced during trial of the case---Any witness from said Police Post to establish that those both witnesses went to said Police Post to report said incident had not been produced before the Court---Furthermore, both the said witnesses claimed that many shops and houses were there at said place, but even then they did not raise any alarm and their conduct was not natural rather raised eyebrows---Even otherwise when on bank of canal there might have been many places having no population, shops, residences or Police Post and it would have been easy for the accused persons to complete their task by throwing victim in the canal there, but question was why they opted place for throwing him into the canal which was surrounded by shops, houses and Police Post---This did not appeal to a common prudent man rather possibility could not be ruled out that said place had been introduced as place of throwing victim into the canal just to show presence of witnesses at the spot to establish that they saw the occurrence---Said witnesses were not residents of place and had no business over there---So, said witnesses were "chance witnesses" who could not establish any plausible reason for their presence over there---Said witnesses had close relationship with the complainant and deceased was real paternal nephew of the complainant, then why they both did not identify deceased when they saw that accused persons were scuffling with him and why they did not intervene or why they did not immediately intimate the complainant---If it was supposed for a moment that they had not earlier seen the deceased and thus could not identify him, then it was mandatory for the prosecution to get dead body of deceased, after its recovery, to be identified by those witnesses to establish that it was dead body of the same person who was seen by them scuffling with the accused persons and thrown by the accused persons into the canal, but that mandatory exercise had not been done, which was fatal omission for the prosecution---Thus, such piece of evidence had lost its efficacy and its evidentiary value was nil, hence, of no help to the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal was accordingly allowed.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Recovery of mobile phones, SIMs and Call Data Record---Inconsequential---Accused were charged for committing murder of the nephew of the complainant after abducting him---So far as recovery of mobile phones, SIMs and C.D.R. was concerned, suffice it to say that ownership of said mobile phones had not been duly proved---Documents issued by cellular company qua ownership of SIMs also could not be brought on record and proved---Call Data Record merely showed presence of SIMs in territorial jurisdiction/area of cellular phone tower and not the person carrying the SIM and it also did not show that the persons using the same were present together---Mere Call Data Record without voice transcript was of no avail to the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal was accordingly allowed.

Mst. Saima Noreen v. The State and another 2022 LHC 8798 rel.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Recovery of motorcycle on the pointation of accused---Inconsequential---Accused were charged for committing murder of the nephew of the complainant after abducting him---Recovery of red coloured motorcycle on the pointing out of accused was of no help to the prosecution as colour and registration number of motorcycle statedly used in the occurrence had neither been mentioned in the FIR nor in the complaint which was filed after a considerable delay, whereas recovery of other articles i.e. CNIC, ATM, wallet, shoes, clothes were not enough to identify the accused, so same was also of no help to the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal was accordingly allowed.

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

----Ss. 302(b), 365, 201 & 34---Qatl-i-amd, kidnapping or abducting with intent to secretly and wrongfully confine a person, causing disappearance of evidence, common intention---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the nephew of the complainant after abducting him---Motive behind the occurrence was that a female Mst. "S", deceased and an accused were employees of Bureau of Statistics, where deceased developed relations with Mst. "S", however, accused had also love affection with Mst. "S"---Accused persons in connivance with each other and with a planning in order to get Mst. "S", while enticing deceased, murdered him---Motive was not mentioned in the FIR though it was introduced subsequently in the complaint, yet any witness could not be produced by the prosecution during trial of the case who allegedly disclosed the motive to the complainant---Even any person who was witness of any relationship between deceased and Mst. "S" or of interest of accused with Mst. "S" or of annoyance of accused with deceased of the case for such reason, was not produced during trial---So motive has not been proved---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any shadow of doubt---Appeal was accordingly allowed.

Muhammad Ashraf Kamboh for Appellant (in Crl. Appeal No.1503 of 2023).

Asghar Ali Gill for Appellant (in Crl. Appeal No.1574 of 2023).

Munir Ahmad Sial, Deputy Prosecutor General for the State.

Rana Muhammad Azam Khan for the Complainant (in Crl. Appeal No. 1503 of 2023, Crl. Appeal No. 1574 of 2023 and for the Petitioner in Crl. Revision No.3600 of 2023).

2024 Y L R 1127

[Lahore (Rawalpindi Bench)]

Before Mirza Viqas Rauf and Ch. Abdul Aziz, JJ

NADEEM SHAH---Appellant

Versus

The STATE---Respondent

Criminal Appeal No. 642 and Murder Reference No. 55 of 2019, heard on 30th November, 2023.

(a) Criminal trial---

----Circumstantial evidence---Last seen evidence--- Scope--- In circumstantial evidence, prosecution has to prove two of its basic ingredients which are proximity of time and proximity of distance---Proximity of time to prove the evidence of last seen rests on the principle of "de recenti" which lays emphasis that time span between the event of last seen and death must be very short---Short duration between the evidence of last seen and the murder incident in fact eliminates the possibility that the deceased parted the company of accused and joined some other person---More is the distance between evidence of last seen and the death of deceased, greater is the possibility about the hypothesis of innocence of the accused---Failure of prosecution to prove the proximity of time and distance is destined to weaken the evidence of last seen.

Muhammad Abid v. The State and another PLD 2018 SC 813; The State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873; Qaisar Mehmood and another v. The State 2021 SCMR 662; Sadi Ahmad and another v. The State 2019 SCMR 1220 and Fayyaz Ahmad v. The State 2017 SCMR 2026 rel.

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

----Ss. 302(b), 377 & 210---Qatl-i-amd, unnatural offence, causing disappearance of evidence of offence, or giving false information to screen offender ---Appreciation of evidence---Benefit of doubt---Last seen evidence---Accused was charged for committing sodomy with the son of complainant and later strangulating him to death---In the instant case, witness appeared during trial with the claim of having seen deceased in the company of accused on 04.02.2019 at about 4:00 p.m.---Said witness mentioned nothing about the place where he had seen deceased and accused on 04.02.2019---Such omission culminated in failure of prosecution to prove the ingredient of proximity of distance, which was essentially required to authenticate the evidence of last seen---As a necessary consequence, nothing was available on record to give finding in favour of prosecution that the event narrated by said witness came within the ambit of doctrine of "de recenti"---In reference to the proximity of time, it was observed that witness deposed in his examination-in-chief to have witnessed the deceased and accused on 04.02.2019 at 4:00 p.m.---During cross-examination it was deciphered that the time of 4:00 p.m. about the event of last seen was brought on record by said witness through dishonest improvement---In fact, witness had not mentioned the exact time of the event in his statement under S. 161, Cr.P.C., and the defence took guard of that fact by confronting him with his statement made during investigation---Narrator of last seen evidence, admitted during cross-examination that he had previous acquaintance with deceased, complainant and accused---Besides previous acquaintance, witness had abode at short distance of one kilometer from the house of deceased but still the information about the episode of last seen was imparted to the complainant after three days---No explanation worth acceptance was furnished by said witness about the mysterious silence to which he resorted for long three days about the fact which had its importance for the family of deceased---Circumstances established that the prosecution failed to prove the guilt of accused, thus his conviction was found to be suffering from perversity---Appeal against conviction was accordingly allowed.

Muhammad Asif v. The State 2017 SCMR 486 rel.

(c) Criminal trial---

----Dishonest improvement---Scope---In criminal case, the fact brought in evidence through dishonest improvement is to be discarded---Purpose of such approach is to deprive a witness of taking leverage for overcoming lacunas in the case by adjusting his statement accordingly.

Muhammad Arif v. The State 2019 SCMR 631 rel.

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

----Ss. 302(b), 377 & 210---Qanun-e-Shahadat (10 of 1984), Arts. 38, 39 & 40---Qatl-i-amd, unnatural offence, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---Recovery of corpse on the disclosure and pointing out of accused---Confession before police---Not admissible---Accused was charged for committing sodomy with the son of complainant and later strangulating him to death---Complainant immediately after acquiring information from the witnesses of last seen approached Investigating Officer---Three private witnesses along with Investigating Officer traced accused sitting in a hotel of a village---Astonishingly, accused took no time in admitting his guilt before police and even volunteered to get the dead body recovered---Under Art. 38 of the Qanun-e-Shahadat Order, 1984, no confession of an accused made before a Police Officer could be proved against him---Likewise, Art. 39 of Qanun-e-Shahadat Order, 1984, bars the proving of a confession made in the police custody---Combined effect of both these Articles is to the effect that confession of an accused made before a Police Officer, either in the custody or otherwise, is inadmissible---Article 40 of Qanun-e-Shahadat Order, 1984, provided an exception to the rule embedded in Arts. 38 & 39---According to the exception contemplated in Article 40 of Qanun-e-Shahadat Order, 1984, an incriminating fact discovered in consequence of an information provided by an accused while in the custody of a Police Officer could still be proved against him---Circumstances established that the prosecution failed to prove the guilt of accused, thus his conviction was found to be suffering from perversity---Appeal against conviction was accordingly allowed.

Pervaiz Masih v. The State 2005 PCr.LJ 1232 rel.

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

----Arts.39 & 40---Disclosure of the accused---Scope---In order to prove during trial that the accused actually made a disclosure and subsequently led to the recovery of same fact, it is essential that a memo of his disclosure be prepared---Only the preparation of the memo testified by the witnesses would prove in subsequent trial that the fact was discovered in consequence of a lead and pointing out of the accused.

Abdul Mateen v. Sahib Khan and others PLD 2006 SC 538 rel.

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

----Ss. 302(b), 377 & 210---Qatl-i-amd, unnatural offence, causing disappearance of evidence of offence, or giving false information to screen offender ---Appreciation of evidence---Benefit of doubt---Discrepancies in the recovery of corpse on the disclosure of accused---Accused was charged for committing sodomy with the son of complainant and later strangulating him to death---Record showed that the deceased went missing on 04.02.2019, whereas the accused made his disclosure leading to the corpse on 07.02.2019 and till that time neither the complainant had lodged formal complaint with the police nor any case was registered---Though the alleged disclosure was made in the presence of Investigating Officer but still neither the statement of accused was recorded nor at the time of recovery of corpse any memo of pointation was prepared---Dead body was recovered from a pond but the (second) Investigating Officer did not prepare any memo about the disclosure of the accused and the recovery of dead body---Even Investigating Officer despite being a Duty Officer made no effort for preparing the memo of disclosure made by the accused---Non-preparation of recovery memo was the main factor resulting into the acquittal of accused though as per prosecution case he got recovered the dead body in pursuance of the disclosure and pointation---According to the prosecution case, the dead body was found immersed in a pond having water and mud, but during autopsy no supporting symptoms were observed by the doctor in that regard---Deposition of Medical Officer showed that neither the clothes were found wet nor he observed any wrinkles on the limbs---Absence of such symptoms on the corpse out-rightly excluded the possibility about the recovery of dead body from a pond, thus it was a factor which negated the theory of crime put forth by the witnesses---According to complainant, the dead body was recovered from the water by Investigating Officer---On the other hand, while appearing in the dock Investigating Officer stated that the needful of removing the dead body from the pond was done by private persons, who were residents of village---According to prosecution case the accused in order to cause disappearance of the dead body from the public view placed two stones upon it, each weighing two kilograms---Even those stones, despite having their own importance, were not taken into possession by the police during investigation---Circumstances established that the prosecution failed to prove the guilt of accused, thus his conviction was found to be suffering from perversity---Appeal against conviction was accordingly allowed.

Abdul Rehman and others v. The State 2020 MLD 342 rel.

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

----Ss. 302(b), 377 & 210---Qatl-i-amd, unnatural offence, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Benefit of doubt---DNA profile---Accused was charged for committing sodomy with the son of complainant and later strangulating him to death---Record showed that three internal anal swabs of deceased matched with the DNA of accused, as was evident from the Forensic Science Agency Report---Corroboratory DNA report lost its significance, keeping in view the fact that the evidence of last seen and recovery of dead body on the disclosure of accused was not worth reliance---Even otherwise, it was noticed that the present case was of improper sampling and unsafe custody---Task of autopsy was performed by Medical Officer who while appearing in the dock uttered not a single word about taking of internal anal swabs of deceased---Question of pivotal importance was that from where the internal anal swabs, which later matched with the DNA profile of the accused, originated---Answer of this query was not found discerning from record which indeed was in eternal silence on the point---Circumstances established that the prosecution failed to prove the guilt of accused, thus his conviction was found to be suffering from perversity---Appeal against conviction was accordingly allowed.

Sheikh Zulfiqar Ali and Sheikh Ahsan-ud-Din for Appellant.

Safeer Hussain Shah for the Complainant.

Naveed Ahmad Warraich, Deputy District Public Prosecutor with Haris, SI for the State.

2024 Y L R 1149

[Lahore (Bahawalpur Bench)]

Before Muhammad Tariq Nadeem, J

MUHAMMAD ASIF and another---Petitioners

Versus

The State---Respondent

Criminal Appeals Nos. 486 and 513 of 2019, heard on 20th September, 2023.

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

----Ss. 302(b), 392, 412 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt--- Identification parade--- Non-mentioning of descriptive features of accused---Effect---Accused were charged for committing murder of the father of complainant by firing during robbery---Record showed that none of the accused was nominated in FIR---Prosecution had heavily relied upon identification parade in order to prove culpability in the case---In that context, it was noted that both the eye-witnesses could not mention any descriptive features of the assailants during investigation before the police as well as before Trial Court except that the accused were of average height---Such material discrepancy, alone, was sufficient to diminish the evidentiary value of identification parade---Appeals were allowed and accused persons were acquitted of the charge.

Sabir Ali alias Fauji v. The State 2011 SCMR 563 and Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524 rel.

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

----Ss. 302(b), 392, 412 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Joint identification parade---Legality---Accused were charged for committing murder of the father of complainant by firing during robbery---As per the report of identification parade, accused was shown sitting in Row No.1 at sixth position from left to right while other accused was shown present at third place from left to right in Row No.2 and identification parade of both the accused persons had been jointly conducted---In the eventuality of said facts, it was crystal clear that the identification parade was not held in accordance with the law---Appeals were allowed and accused persons were acquitted of the charge.

Kamal Din alias Kamala v. The State 2018 SCMR 577 rel.

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

----Ss. 302(b), 392, 412 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Ocular account not supported by medical evidence---Effect---Accused were charged for committing murder of the father of complainant by firing during robbery---Record showed that medical evidence was not synchronized with the ocular account of the prosecution's case---In that context, although complainant only mentioned in crime report that deceased was injured due to firing made by one of the assailants and during the proceedings of identification parade, complainant and other witnesses categorically stated before Supervisory Magistrate that accused had made the fire shot which landed upon left side of chest of deceased, but according to medical history of the deceased as mentioned in his post mortem report and proved through the statement of Medical Officer, injury on left side of chest of the deceased was in fact an exit wound---Complainant had made an abortive attempt to cure shch material inconsistency by filing private complaint wherein he had put the whole blame upon Supervisory Magistrate that either he mistakenly mentioned the statements of eye-witnesses in the report of identification parade or failed to correctly understand their statements, but such an attempt by way of filing private complaint was made with considerable delay of five months after the holding of identification parade, therefore, it was crystal clear that the private complaint was filed with deliberations and under legal advice---Appeals were allowed and accused persons were acquitted of the charge.

(d) Criminal trial---

----Recoveries---Scope---Recoveries being purely corroboratory in nature could not be considered to sustain conviction on a capital charge.

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

----Ss. 302(b), 392, 412 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence from the possession of accused---Inconsequential---Accused were charged for committing murder of the father of complainant by firing during robbery---Record showed that pistol 30 bore recovered from accused was inconsequential, because, nothing was available on the record that any crime empty was collected during spot inspection and sent to the office of Forensic Science Agency, and the report of the said Agency was only to the extent that pistol was in mechanical operating condition---Appeals were allowed and accused persons were acquitted of the charge.

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

----Ss. 302(b), 392, 412 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Recovery of incriminating material--- Inconsequential--- Accused were charged for committing murder of the father of complainant by firing during robbery---Record showed that the articles in the shape of handbag and cheque books were not recovered from any accused rather the same were shown to have been taken into possession from the bank of canal---Similarly, recovery of motorcycle from accused was also not helpful for prosecution's case because no registration number of motorcycle used by the assailants during the occurrence had been mentioned by the complainant in FIR--- Appeals were allowed and accused persons were acquitted of the charge.

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

----Ss. 302(b), 392, 412 & 34---Qatl-i-amd, robbery, dishonestly receiving stolen property, common intention---Appreciation of evidence---Benefit of doubt---Recovery of currency notes from the accused---Inconsequential---Accused were charged for committing murder of the father of complainant by firing during robbery---Much emphasis had been laid on the recovery of cash Rs.80,000/-from accused with the denomination of 13 currency notes of Rs.5000/-, 11 currency notes of Rs. 1,000/- and 8 currency notes of Rs.500/- which were taken into possession, as well as recovery of Rs. 70,000/-from other accused with the denomination of 11 currency notes of Rs.5000/- currency notes of Rs.1,000/- and 10 currency notes of Rs.500/- which were taken into possession---However, prosecution had candidly admitted that neither any identification memo of said currency notes was available on the record nor numbers of currency notes had been mentioned in FIR as well as during investigation and trial to establish that the currency notes allegedly recovered from the accused persons were the same which were snatched from deceased during the occurrence---Such recovery was of no consequence--- Appeals were allowed and accused persons were acquitted of the charge.

(h) Criminal trial---

----Benefit of doubt---Principle---If the prosecution fails to discharge its obligation and there remains a reasonable doubt, not an imaginary or artificial doubt, as to the guilt of the accused, the benefit of that doubt is to be given to the accused as of right, and not as of concession.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Najaf Ali Shah v. The State 2021 SCMR 736; Sajjad Hussain v. The State and others 2022 SCMR 1540 and Tajamal Hussain Shah v. The State and another 2022 SCMR 1567 rel.

Hassan Mehmood Chaudhary, Farooq Haider Malik and Syed Zeeshan Haider for Appellants.

Javed Iqbal Bhaya, Assistant District Public Prosecutor for the State.

Mirza Muhammad Azam for the Complainant.

2024 Y L R 1174

[Lahore (Bahawalpur Bench)]

Before Asjad Javaid Ghural and Muhammad Amjad Rafiq, JJ

The STATE---Appellant

Versus

SHAFIQUE AHMED---Respondent

Criminal Appeal No. 166 of 2020, decided on 13th November, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K & 417---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 6---Appeal against acquittal---Acquittal invoking provisions of S.265-K, Cr.P.C.---Scope---State preferred appeal against the acquittal order/judgment passed by the Trial Court on an application under S. 265-K, Cr.P.C., moved by the accused (respondent)---Record showed that accused was acquitted on the ground that Forensic Science Agency Analysis Report, though not tendered in evidence, was bereft of necessary protocols---Perusal of Forensic Science Agency Analysis Report, reproduced in impugned judgment, showed that test applied, protocols carried out and result of test was mentioned---Although, said report was in a form as considered sufficient by the Supreme Court but the Trial Court had rejected that report that no details of protocols performed for tests were mentioned therein---More so Trial Court had not focused on the philosophy behind "probability of conviction"---If the report of Forensic Science Agency was not amenable to be used as cogent evidence, prosecution still had some options to exercise like calling of analyst pursuant to S. 510, Cr.P.C., and for re-examination of contraband or clarification of report as per Ss. 11 & 12 of the Punjab Forensic Science Agency Act, 2007---Appeal was allowed by setting aside impugned judgment, and on the strength of S. 423, Cr.P.C., the case was sent back to the Court concerned for trial of the accused in accordance with law.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039; Khair-ul-Bashar v. The State 2019 SCMR 930; Asmat Ali v. The State 2020 SCMR 1000; Hayat Bakhsh and others v. The State 1981 SCMR 1; PLD 1981 SC 265; Qaiser Javed Khan v. The State through Prosecutor General Punjab, Lahore and another PLD 2020 SC 57; Shazia Bibi v. The State 2020 SCMR 460; Mushtaq Ahmad v. The State and another 2020 SCMR 474; Asmat Ali v. The State 2020 SCMR 1000; Minhaj Khan v. The State 2019 SCMR 326; President National Bank of Pakistan and others v. Waqas Ahmed Khan 2023 SCMR 766 and Raja Muhammad Yasin v. Zaitoon Begum and others 1993 CLC 2448 rel.

Ch. Asghar Ali Gill, Deputy Prosecutor General for the State.

Nemo for Respondent.

2024 Y L R 1182

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD ASHRAF---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 17013-B of 2023, decided on 10th April, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Punjab Food Authority Act (XVI of 2011), S. 22(1)---Substandard or misbranded food---Bail, grant of---Further inquiry---Allegation against the petitioner was that he was found selling substandard milk---Record showed that the Food Safety Officer did not send the requisite quantity of milk sample to the Public Analyst, which should have been at least 250 ml per R. 52 of the Punjab Pure Food Rules, 2011---Thus, the report was open to a serious challenge---Said fact made the petitioner's case one of further inquiry---Offence under S. 22(1) of the Punjab Food Authority Act, 2011, with which the petitioner had been charged did not fall within the prohibitory clause of S. 497, Cr.P.C.---Lastly, the petitioner had been behind bars for about six weeks---Police did not require him for further probe and his continued incarceration would not advance the prosecution's case---Bail application was accepted accordingly.

Tariq Bashir and others v. The State PLD 1995 SC 34; Muhammad Tanveer v. The State and another PLD 2017 SC 733; Arslan Masih and others v. The State and others 2019 SCMR 1152; Abdul Saboor v. The State and another 2022 SCMR 592; Nazir Ahmad alias Bhaga v. The State and others 2022 SCMR 1467 and Muhammad Nawaz alias Karo v. The State 2023 SCMR 734 rel.

Muhammad Ejaz for Petitioner.

2024 Y L R 1194

[Lahore (Rawalpindi Bench)]

Before Ch. Abdul Aziz, J

RASHID---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 3229-B of 2023, decided on 20th December, 2023.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-D, 337-A(i), 337-F(i), 337-L(2), 354 & 34---Jaifah, shajjah-i-khafifah, ghayr-jaifah-mudihah, causing hurt, assault or criminal force to woman with intent to outrage her modesty, common intention---Pre-arrest bail, confirmation of---Civil dispute---Accused were charged for causing injuries to the complainant party---Injury on the shoulder of an injured did not come within the purview of S. 337-D, P.P.C---Due to the opinion of Medical Officer, which was patently fallacious, co-accused remained incarcerated for about 50-days and was granted post-arrest bail---Medical Officer was generally considered as a witness of truth in the scheme of things upon which the system of criminal administration of justice was structured---An erroneous opinion given by the Medical Officer based either upon his in competency or some sinister design could bring disastrous consequences for the litigant in a criminal case---Medical Officers must realize that by tendering opinion in criminal cases, they contribute in safe administration of justice which gets polluted by incorrect reports---Ordeal and agony which the petitioner as well as co-accused faced in the case due to incorrect opinion of the Medical Officer could not be compensated by words and called for an action against the Medical Officer but still lenient view was being taken against him---Shoulder injury of injured which did not attract S. 337-D, P.P.C, was not even specifically assigned to any accused and besides it found no place in the FIR---Rest of the penal provisions applied in the FIR were bailable as was evident from the Second Schedule of Criminal Procedure Code, 1898---In bailable offences there was no need for the Courts to look for mala fide behind the registration of case in order to extend the concession of pre-arrest bail---In such like cases, pre-arrest bail was to be granted to the accused as a matter of right---Petition was accepted and ad interim pre-arrest bail already granted was confirmed, in circumstances.

Chairman, Pakistan Railway, Govern-ment of Pakistan, Islamabad and others v. Shah Jahan Shah PLD 2016 SC 534; Muhammad Jaffar v. The State and another 2020 MLD 679; Muhammad Ahmad v. The State 2005 YLR 661; Pervaiz Khan v. The State PLD 1998 Lah. 84; Muhammad Ayub v. Muhammad Yaqub and another PLD 1966 SC 1003 and Tariq Bashir and 5 others v. The State PLD 1995 SC 34 rel.

Alam Zeb Satti and Khalid Zaheer Raja with the Petitioner.

Usman Aslam for the Complainant.

2024 Y L R 1199

[Lahore]

Before Shahid Bilal Hassan, J

MUHAMMAD ASLAM---Petitioner

Versus

MUHAMMAD ISMAIL (deceased) through L.Rs.---Respondents

Civil Revision No. 22357 of 2020, heard on 13th December, 2023.

Specific Relief Act (I of 1877)---

----Ss. 12 & 54---Suit for specific performance and permanent injunction---Documentary evidence--- Proof---Petitioner filed a suit for specific performance of agreement to sell and permanent injunction against the respondent for his property measuring 01-kanal, 04-marlas against a consideration of Rs. 4,50,00,000/----Petitioner paid Rs. 52,50,000/- earnest money---Petitioner contended that he always remained ready to perform his part of obligation but the respondent refused to do the needful on his part---Trial Court dismissed the suit of the petitioner, however, amount of Rs.52,00,000/-received by the respondent from the petitioner, being not earnest money, was held liable to be returned by the respondent to the petitioner with an additional amount of Rs. 30,00,000/-, keeping in view the depreciation of money and increase in value of the property---Both the parties preferred separate appeals---Appeal of the respondent was dismissed but the appeal of petitioner was accepted with modification in the judgment that the petitioner shall be entitled to recover an amount of Rs. 1,04,00,000/- from the respondent---Validity---In this case, from the side of petitioner total three witnesses were produced, whereas from the other side, only the respondent himself appeared as witness---Only one document was exhibited by petitioner in his statement, whereas the remaining documents were exhibited/marked through the statements of counsel for the parties and not through the testimonies of either witnesses of petitioner or respondent---Mere marking of a document as an exhibit would not dispense with requirement of proving the same and the same could not be exhibited unless it was proved---Documents not brought on the record through witnesses' testimonies could not be taken into consideration by the Court---In this regard, both the Courts below had failed to adopt the said procedure of law---In addition to that, the reading of documents in evidence without observing legal requirements of Art. 76 of the Qanun-e-Shahadat, 1984, would be illegal---Trial Court had totally travelled beyond its jurisdiction with regards to the recording of evidence with particular reference to the documentary evidence, therefore, civil revisions were allowed by setting aside the impugned judgments/ decrees of both the Courts below and the case was remanded to the Trial Court for a decision afresh after recording total evidence of the parties.

Federation of Pakistan through Secretary, Ministry of Defence and another v. Jaffar Khan and others PLD 2010 SC 604; Mst. Akhtar Sultana v. Major Retd. Muzffar Khan Malik through his legal heirs and others PLD 2021 SC 715; Rustam and others v. Jehangir (deceased) through L.Rs. 2023 SCMR 730; Abdullah v. Provincial Government through Secretary Board of Revenue and 3 others 2014 CLC 285; Inspector-General of Police, Balochistan, Quetta and 4 others v. Ghulam Rasool 2012 CLC 1645; State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal 2011 SCMR 1013; Anwar Ahmad v. Mst. Nafiz Bano through Legal Heirs 2005 SCMR 152; Syed Abdul Manan and others v. Malik Asmatullah and others 2019 CLC 1096; Feroz Din and others v. Nawab Khan and others AIR 1928 Lahore 432; Fazal Muhammad v. Mst. Chohara and others 1992 SCMR 2182; PLD 1973 SC 160; PLD 2020 SC 749 and 2021 YLR 2310 rel.

Ms. Saadia Malik for Petitioner.

Adeel Shahid Karim for Respondents.

2024 Y L R 1224

[Lahore]

Before Asim Hafeez, J

Syed KASHIF HUSSAIN SHAH and 2 others---Petitioners

Versus

OMBUDSPERSON (MOHTASIB) PUNJAB and 7 others---Respondents

Writ Petition No. 67858 of 2023, decided on 19th December, 2023.

Punjab Enforcement of Woman's Property Rights Act (X of 2021)---

----S. 7---Complaint to Ombudsperson (Mohtasib) in case proceedings in a Court of law---Ombudsperson (Mohtasib) Punjab---Jurisdiction---Report in terms of S. 7(3) of the Punjab Woman Enforcement of Property Rights Act, 2021 submitted by the Ombudsperson (Mohtasib) with the concerned Civil Court, but no response was received, whereafter Ombudsperson (Mohtasib) proceeded to decide the complaint---Petitioners invoked constitutional jurisdiction of the High Court against the decision passed by the Ombudsperson (Mohtasib) on the complaint of the private respondents---Contention of the petitioners was that parties to the civil suit(s) were neither impleaded as party to the complaint nor were heard before ordering partition of the property owned by the parties---Validity---Civil Courts where civil suits are pending are required to respond to the report, failing which Ombudsperson (Mohtasib) had to proceed in accordance with the jurisdiction conferred as the exercise of such jurisdiction cannot be stalled or held in abeyance merely because the concerned Court is not responding to the report---However, in the present case, partition of property was ordered by the Ombudsperson (Mohtasib) merely because partition proceedings otherwise pending before the Tehsildar, were adjourned sine die, for which the complainants (private respondents) failed to justify that, merely on sait fact, per se jurisdiction was exercisable by the Ombudsperson (Mohtasib)---Further, no discussion was found in the impugned order regarding the scope of civil suit filed by the complainants themselves, which proceedings were still pending---Impugned order passed by the Ombudsperson (Mohtasib) was deficient on various counts---High Court set-aside the impugned order and remanded the matter to the Ombudsperson (Mohtasib) to decide the same afresh while observing necessary steps like impleadment of parties in the complaint, issuing notices etc.---Constitutional petition was allowed in circumstances.

Sh. Naveed Shahryar and Mst. Uneza Siddiqui for Petitioners.

Waqar Saeed Khan, Assistant Advocate General.

Irfan Dogar for Respondent No.1 with Muhammad Naeem Chaudhry, Law Officer.

2024 Y L R 1238

[Lahore]

Before Rasaal Hasan Syed, J

SHEHZAD NAWAZ and others---Appellants

Versus

Mst. RAAJ BEGUM and others---Respondents

Regular Second Appeal No. 25 of 2015, decided on 10th March, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Declaration and injunction---Gift---Proof--- Respondents/ plaintiffs were legal heirs of deceased owner of suit property which was mutated in the name of defendant on the basis of gift allegedly made in favour of his predecessor-in-interest---Trial Court and Lower Appellate Court concurrently decided the matter in favour of respondents / plaintiffs--- Validity--- To prove gift, it was incumbent to allege and prove three mandatory ingredients; declaration of gift; acceptance of gift; and transfer of possession of property---It was also necessary to specifically mention time, place and names of persons in whose presence such pre-requisites were performed---Neither such ingredients were mentioned in written statement nor were proved in evidence of defendant---No gift was made by deceased owner of suit land during his lifetime, in favour of predecessor-in-interest of defendant---Execution of power of attorney or existence of any authority therein of making gift of property of deceased owner was not proved by defendant---Suit property devolved upon legal heirs of deceased owners on opening of succession in accordance with Islamic shares, as subsequent mutations in favour of defendant were illegal, a result of fraud, void ab initio and ineffective in law---Second appeal was dismissed, in circumstances.

Mst. Bandi v. Province of Punjab and others 2005 SCMR 1368; Mst. Shumal Begum v. Mst. Gulzar Begum and 3 others 1994 SCMR 818; Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Ijaz Bashir Qureshi v. Shams-Un-Nisa Qureshi and others 2021 SCMR 1298; Barkat Ali through Legal Heirs and others v. Muhammad Ismail through Legal Heirs and others 2002 SCMR 1938 and Mst. Parveen (deceased) through LR.'s and others v. Muhammad Pervaiz and others 2022 SCMR 64 ref.

Tariq Iqbal and Muhammad Zeeshan Malik for Appellants.

Ch. Tanveer Ahmad Hanjra and Rana Muhammad Arif for Respondents Nos.1 to 3.

Respondent No.4: Ex parte

2024 Y L R 1264

[Lahore]

Before Tariq Saleem Sheikh, J

Mian TARIQ AZIZ---Petitioner

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous No. 60825-M of 2021, decided on 23rd January, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 249 & 561-A---Penal Code (XLV of 1860), Ss. 420, 467, 468 & 471---Cheating and dishonestly inducing delivery of property, forgery for valuable security, forged document, using as genuine a forged document---Proceedings in FIR stayed till outcome of civil cases---Petitioner applied for a stay of proceedings under S. 249, Cr.P.C., on the ground that four civil suits concerning the disputed property were pending---Said application was dismissed---Decision of the trial Court was upheld in revision by the Revisional Court--- Validity--- Respondent No.2 claimed that Sale Deed in question was bogus--- Petitioner had produced documents which prima facie showed that on 03.12.1995 father of respondent No. 2 executed an agreement with the petitioner in respect of the land measuring 03 kanals 15 marlas and agreed to sell it to him for Rs.616,000/---Said seller received Rs.100,000/- as earnest money, of which Rs.50,000/- was in cash and the remainder in two cheques of Rs.25,000/- each---On the same day, seller delivered the possession of the land to the petitioner---Petitioner had submitted a copy of the building plan of a Mill sanctioned by the competent authority on 28.03.1996 which included the disputed land---Seller/father of respondent No. 2 lived for 12 long years after the registration of Sale Deed, but neither he challenged it nor instituted any proceedings to recover possession of the land in question---Respondent No.2 lodged an FIR nine years after the death of her father---Respondent No.2 maintained that she came to know about the registration of Sale Deed on 12.04.2017 through the Halqa Patwari when the petitioner presented it to him for mutation---However, the record contradicted her and showed that she filed a complaint about the said sale deed with Police Station in the year 2012---Police conducted an extensive inquiry and it was disposed of as a result of its findings---Moreover deceased seller had mortgaged the land to some other persons and failed to redeem that mortgage within 60 years---Resultantly, said mortgagees filed a suit seeking a declaration that title of mortgagor had been extinguished and that they had become its owners---Said suit was decreed ex parte---Respondent No.2 applied under S. 12(2), C.P.C., to have it set aside, but the civil Court dismissed the application---Respondent No. 2 assailed that order in revision, but it was also dismissed---Prior to that the petitioner had filed a suit against Respondent No.2 seeking a declaration regarding his title and permanent injunction---On 02.05.2017, the latter instituted a lawsuit against the petitioner for cancellation of Sale Deed---Earlier, she got two Mutations sanctioned regarding the inheritance of her father in respect of Khasra Nos. 510 and 511---Then, on 08.12.2015, respondent No. 2 filed a suit for possession (along with permanent injunction) against the petitioner regarding land measuring 07 kanals 03 marlas comprised in those Khasras which was decreed ex parte on 26.04.2016---Petitioner had filed an application under O. XXI, R. 99 & 103 read with S. 151, C.P.C. objecting to the execution of that decree---All such proceedings were currently pending---Dispute between the petitioner and respondent No.2 involved intricate questions of law and facts---Prima facie, the eligibility of respondent No.2 to lodge the FIR was also contingent on the outcome of the civil litigation---Authenticity of Sale Deed could not be determined without a proper trial by the Civil Court where lawsuits of both sides were pending, thus it was just and appropriate that the proceedings in FIR be stayed till the final decision of the civil cases---Petition was accepted and the impugned orders were set aside, in circumstances.

Muhammad Akbar v. The State and another PLD 1968 SC 281; Muhammad Tufail v. The State and another 1979 SCMR 437; Abdul Haleem v. The State and others 1982 SCMR 988; Akhlaq Hussain Kayani v. Zafar Iqbal Kiyani and others 2010 SCMR 1835; Malik Khuda Bakhsh v. The State 1995 SCMR 1621; M. Aslam Zaheer v. Ch. Shah Muhammad and another 2003 SCMR 1691; Seema Fareed and others v. The State and another 2008 SCMR 839; Muhammad Tariq v. Additional Sessions Judge, Dunyapur, and others 2012 PCr.LJ 285; Muhammad Aslam v. The State and others 2017 SCMR 390; Dr. Sikandar Ali Mohi ud Din v. Station House Officer and others 2021 SCMR 1486; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193; Muhammad Ishaque Qureshi v. Sajid Ali Khan and another 2016 SCMR 192; Wajeeh-ul-Hassan v. The State 2019 SCMR 1994; Muhammad Samiullah v. The State 2022 SCMR 998 and Sardar Ali v. Judge Special Court, Multan, and another 1996 MLD 460 rel.

Jahangir A. Jhoja for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General for the State.

Muhammad Maqsood Buttar for Respondent No.2.

2024 Y L R 1306

[Lahore]

Before Raheel Kamran, J

MUHAMMAD TARIQ SAHI---Appellant

Versus

GOVERNMENT OF PUNJAB and others---Respondents

Writ Petition No. 55800 of 2023, decided on 20th December, 2023.

Punjab Mining Concession Rules, 2002---

----R. 198---Constitution of Pakistan, Art. 199---Constitutional petition---Public auction---Reserve price, fixing of---Wednesbury principle---Applicability---Petitioner was aggrieved of increase in reserve price of mining area to be leased out through public auction for excavating sand stone---Validity---Fixation of reserve price is prerogative of concerned government authorities---Any existing lessee nor any prospective bidder can seek fixation of reserve price of his own choice---While fixing reserve price, exercise of discretion by public authority must be just, fair and reasonable---Any arbitrary, whimsical and capricious exercise of such authority is amenable to judicial scrutiny---Scope of jurisdiction under Art. 199 of the Constitution in such regard is very limited---For such challenge to succeed in constitutional jurisdiction, it was imperative for petitioner to establish that the reserve price fixed by public functionaries was so unreasonable that no authority with a prudent mind could have fixed the same---This is also known as Wednesbury principle---In case auction in question failed to fetch bids for and above reserved price in question, matter would be referred to the Committee of Special Experts under directive/instruction dated 26-05-2021 for review of reserve price---Constitutional petition was dismissed, in circumstances.

Messrs 3N-Lifemed Pharmaceuticals v. Government of Punjab through Secretary Primary and Secondary Healthcare Department and others 2023 CLC 948 and Hajj Organizers Association of Pakistan through Authorised Officer and 11 others v. Federation of Pakistan through Secretary Ministry of Religious Affairs and Interfaith Harmony, Islamabad and 2 others PLD 2020 Sindh 42 rel.

Imran Raza Chadhar for Petitioner.

2024 Y L R 1321

[Lahore]

Before Anwaarul Haq Pannun, J

SAJJAD AHMAD---Petitioner

Versus

The STATE and others---Respondents

Criminal Miscellaneous No. 25688-B of 2023, decided on 12th June, 2023.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 334, 337-A(i), 337-L(2) & 34---Itlaf-i-udw, shajjah-i-khafifah, causing hurt, common intention---Pre-arrest bail, refusal of---Petitioner was charged for giving a danda blow hitting the lips of the complainant, resulting into breaking/ itlaf of his teeth---Petitioner was nominated in the F.I.R with the specific role of inflicting a sota blow on the lips of the complainant causing itlaf/breaking of his teeth, which was duly corroborated with the Medico-Legal Certificate and the statements of the witnesses under S. 161, Cr.P.C.---Recovery of weapon of offence was yet to be effected from him---On account of failure of petitioner in showing any malafide either on the part of the complainant or the police for his false implication by way of registration of criminal case against him, he had not been able to make out a case for confirmation of his ad-interim pre-arrest bail---Petition was dismissed and ad-interim pre-arrest bail already granted to the petitioner was recalled, in circumstances.

Zahoor Ahmad and another v. The State 2005 YLR 1664 and Zulfiqar Ali v. The State and another 2007 YLR 361 ref.

Mian Asif Mumtaz for Petitioner.

Shehzad Sarwar and Muhammad Aqeel for the Complainant.

Sohail Majeed Khan, Advocate/ amicus curiae.

2024 Y L R 1339

[Lahore]

Before Tariq Saleem Sheikh, J

SHARAFAT ALI---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 10982-B of 2023, decided on 8th March, 2023.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-U & 337-L(2)---Itlaf of teeth, causing hurt---Pre-arrest bail, refusal of---Petitioner and his co-accused were charged for causing injuries to the complainant and his cousin---Petitioner was nominated in the FIR with the specific allegation that he hit complainant's cousin in the face with an iron rod, breaking two teeth---Witnesses supported the prosecution's case---Statements of said witnesses had been recorded under S. 161, Cr.P.C., which were corroborated by medical evidence---On a tentative assessment, there was sufficient incriminating evidence against the petitioner---Alleged offence was not bailable---Petitioner had not brought any material on record which might be suggestive that the case against him was based on mala fide, which was a sine qua non for the grant of pre-arrest bail---Application had no merit and was dismissed, in circumstances.

Muhammad Sadiq and another v. The State and another 2015 SCMR 1394; Aamir Bashir and another v. The State and others 2017 SCMR 2060 and Shabbir Ahmad v. The State PLD 1981 Lah. 599 rel.

Mian Bilal Safdar for Petitioner.

Rai Asif Mahmood, Deputy Prosecutor General, with Ali/ASI for the State.

2024 Y L R 1349

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

SAJID HUSSAIN and another---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 289-J and 457 and Murder Reference No. 45 of 2019, decided on 9th October, 2023.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Appreciation of evidence--- Benefit of doubt---Delay of four hours in lodging the FIR---Consequential---Accused was charged for committing murder of the wife of the complainant by firing---Motive was annoyance of accused over his rejection for marriage with daughter of the complainant---Matter was reported to the police at 11.00 am on the same day with a delay of more than four hours with the justification that time was consumed while shifting the victim in injured condition to hospital and on the way when she died, her dead body was kept at hospital and police on receiving information reached there---Said four hours were very crucial to decide the fate of first Phase of prosecution reel---Complainant stated that his son informed the Rescue 1122 Emergency Ambulance Service and it reached at 7.00 am and according to him, they had shifted the dead body at 7.15 am---If injured had died, there was no question of shifting her to hospital in injured condition, and that fact was also mentioned in the report of Emergency Service 1122 available in the file that on 02.02.2018 at 7.30 am, when they reached at the place of occurrence, the woman had died---Thus, there was no occasion for complainant to wait further even for a moment to report the matter to the police---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34--- Qatl-i-amd, common intention--- Appreciation of evidence---Benefit of doubt---Presence of complainant at the time and place of occurrence not proved---Effect---Accused was charged for committing murder of the wife of the complainant by firing---Report of the hospital available on record showed deposit of dead body of deceased in the morgue at 9.20 am on 02.02.2018 by Police Constable and it was received back by him at 11.30 am on the same day for postmortem and later during the day it was handed over to brother of the complainant--- Presence of Police Constable in hospital prior to reaching of Investigating Officer threw suspicion that occurrence was in the knowledge of police from very early hours and due to absence of complainant, the registration of FIR was delayed and by that time postmortem was conducted---This was the reason that instead of complainant, his brother received the dead body and later was given up to hide the facts that might have been caught during his cross-examination---Absence of complainant got further strength from the statement of complainant who conceded that he had two wives, one living at a distance of 30/40 kilometers from the place of occurrence---Moreover, had the FIR been registered before the postmortem, the inquest report must have contained the FIR number, which was not there---Complainant was not present at the place of occurrence, therefore, his testimony could not be relied upon as trustworthy---Appeal against conviction was allowed, in circumstances.

Zafar Hayat v. The State 1995 SCMR 896; Muhammad Rafique v. The State and another 2004 SCMR 755 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 weapon of offence and crime empty---Inconsequential---Accused was charged for committing murder of the wife of the complainant by firing---Prosecution had claimed that recovery of pistol from the accused was supportive to prosecution case because one of the empties collected from the place of occurrence was reported by Forensic Science Agency as having been found fired from the pistol recovered on the lead of accused---Similar evidence of matching report against the co-accused had been discarded by the Trial Court while acquitting him---Sub-Inspector was the man who deposited the empties and pistol in the office of Forensic Science Agency, though fact of depositing of empties on 07.02.2018 was available in his statement as well as in the statement of Moharrir but he did not depose about the fact of depositing the pistols rather stated that he recorded the statement of Moharrir for depositing of pistols before Forensic Science Agency---In normal circumstances, it might be considered an innocent omission but two pistols were received by Forensic Science Agency in two separate parcels whereas Moharrir deposed during cross-examination that both pistols were sealed in one parcel---This was a dent in recovery of pistols and transmission of that very pistol which was allegedly recovered from the accused---Furthermore pistols after recovery were handed over to the Moharrir on 15.02.2018 but they were deposited in Forensic Science Agency with further delay of eight days on 23.02.2018---Thus, recovery of pistol from the accused had become doubtful---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Benefit of doubt---Medical evidence and ocular account---Contradictions---Accused was charged for committing murder of the wife of the complainant by firing---Medical evidence for the prosecution was materialized through postmortem of deceased which was conducted by Medical Officer at 12.00 noon on 02.02.2018 with a delay of five hours---Record showed that bullet entered from left side of rib cage and exited from right side of the rib cage without its exit from the back, otherwise Medical Officer must have mentioned the further exit of bullet from the back side as she had mentioned while showing its entry inlet---Thus, there was contradiction in medical evidence as bullet entered from the left side of chest whereas prosecution claimed it as a fire shot on the front of chest---Another touchy aspect in medical evidence was the size of entry wound which was bigger than the exit wound and it was not possible in ordinary circumstances but presence of tattooing could produce such type of effect if the fire was made with palleted weapon---So, there was serious conflict in medical and ocular account which showed that occurrence was not committed in the manner as being claimed by the prosecution---Such contradiction was fatal to the prosecution---Appeal against conviction was allowed, in circumstances.

Muhammad Idrees and another v. The State and others 2021 SCMR 612; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Zafar v. The State and others 2018 SCMR 326 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be several circumstances creating doubt, rather one reasonable doubt is sufficient to acquit an accused.

Najaf Ali Shah v. The State 2021 SCMR 736 rel.

James Joseph for Appellant.

Malik Riaz Ahmad Saghla, Additional Prosecutor General for the State.

Nemo for the Complainant.

Date of hearing: 9th October, 2023.

2024 Y L R 1369

[Lahore]

Before Farooq Haider, J

RIAZ SHAH---Appellant

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 40039-B of 2022, decided on 27th October, 2022.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302, 324, 109 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, common intention---Bail, grant of---Further inquiry---Statutory ground of delay in conclusion of trial---Petitioner caused injury with firearm weapon on back of deceased son of complainant and he also caused firearm injury at the left arm of the witness---Occurrence in the case took place in the year 2009 and the petitioner was arrested in this case on 23.10.2017--- Challan report was prepared on 10.11.2017, however, as per copy of order sheet, challan report was received in the court on 25.09.2018---Petitioner and his co-accused filed application before Trial Court for declaring them juvenile and Trial Court declared them so i.e. juvenile vide order dated 19.02.2019 which was challenged by the complainant before High Court through a Criminal Revision---Said petition came up for hearing before High Court on 21.05.2019 and further proceedings before Trial Court were stayed by High Court on 21.05.2019; thereafter, when said petition again came up for hearing on 13.02.2020, petitioner in said petition was stated to be indisposed and request for adjournment was made and said revision petition was adjourned---Perusal of order sheets of said revision petition revealed that no adjournment was sought on behalf of present petitioner and his co-accused---Admittedly the proceedings of the Trial Court remained stayed since 21.05.2019 till date and revision petition did not remain pending due to any act/omission of present petitioner or any other person acting on his behalf---Act of Court should not prejudice anyone---Thus, said delay could not be attributed to the present petitioner and bail could not be declined to the petitioner for said reason---Petitioner was arrested in the case on 23.10.2017 and more than five years had already elapsed after his arrest and he was behind the bars since then---Even otherwise no material was available on record to show that petitioner was a hardened, desperate or dangerous criminal or was accused of an act of terrorism or was a previously convicted offender---After stay of proceedings of trial on 21.05.2019 by High Court, almost 03 years and 05 months had elapsed---Therefore, it was not only a question of bail on statutory ground of delay in conclusion of trial but it was also a case of hardship because petitioner was behind bars for more than last five years without any fault on his part especially after stay of proceedings in trial of the case from 21.05.2019 till now---Application was filed by the petitioner and his co-accused for getting them declared as juvenile and time was consumed in deciding the same---Said consumed time could not disentitle petitioner for grant of bail on statutory ground of delay in conclusion of trial since time consumed by him in order to avail his legal right/remedy did not come within the definition of intentional or tactful delay by the accused---When accused became entitled for grant of bail as a matter of right, then he could not be declined such relief due to abscondance which was a matter of propriety---Petitioner was arrested in the case on 23.10.2017 and same date shall be considered for calculating period of delay in conclusion of trial---Petition for bail was allowed on statutory ground of delay in conclusion of trial.

Fida Hussain v. The State and others PLD 2002 SC 46; Saleem Khan v. The State and others PLD 2020 SC 356; Nadeem Samson v. The State and others PLD 2022 SC 112; Shakeel Shah v. The State and others 2022 SCMR 1; Qamar alias Mitho v. The State and others PLD 2012 SC 222; Gul Nawab v. The State through A.G. Khyber Pakhtunkhwa and another 2022 SCMR 547 and Khawar Kayani v. The State and others PLD 2022 SC 551 rel.

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

----Ss. 497 & 498---Bail---Observations made in bail order---Such observations are tentative in nature, strictly confined to the disposal of bail petition and have no bearing upon trial of the case.

Omais Nasir Bhatti for Petitioner.

Ms. Nuzhat Bashir, Deputy Prosecutor General for the State along with Raees A.S.I. with record.

2024 Y L R 1382

[Lahore]

Before Tariq Saleem Sheikh, J

MUHAMMAD AKRAM---Appellant

Versus

The STATE and 3 others---Respondents

Criminal Miscellaneous No. 51580-M of 2022, decided on 27th February, 2023.

Provincial Motor Vehicles Ordinance (XIX of 1965)---

----S.32---Punjab Motor Vehicle Rules, 1969, R. 47(1)---Criminal Procedure Code (V of 1898), Ss. 516-A & 550---Superdari of vehicle---Petitioner was aggrieved of handing over the custody of vehicle to respondent---Validity---Originally, Mr. "N" purchased the car from a company---Said Mr. "N" sold it to Mr. "MA", who applied to a bank for an auto loan and under that arrangement, got it registered in its name on 02.09.2006---Mr. "MA" paid off his loan after five years, whereupon the Bank issued a No Objection Certificate dated 18.07.2021 asking the Motor Registration Authority to delete its name from the record---Moreover, it also certified that it had no objection regarding its further sale/change of ownership---On 07.08.2019, Mr. "MA" got the car transferred in his own name, and on 09.11.2019, it was registered in the petitioner's name---Admittedly, all these documents were with the petitioner and the Motor Registration Authority's record reflected that the car belonged to him---Respondent claimed that he bought the car from "Mr. MA" through an open Transfer Deed, which inter alia implied an updated document---Transfer Deed and affidavit of "Mr. MA" when examined together showed that the alleged transaction took place on 09.08.2010---According to the available documentation, Mr. "MA" did not have the right to sell the car on that date because it was still in the bank's name---Transfer Deed was not in the form prescribed under R. 47(1) of the Punjab Motor Vehicles Rules, 1969---Further, an open transfer deed was not a valid title document and did not transfer vehicle's ownership under the Ordinance---In any case, if the transferee did not submit an application to the Motor Registration Authority for a change of ownership of a vehicle within 30 days following the transaction, it was null and void under S. 32 of the Ordinance---Petitioner was the registered owner of the car and, for Superdari, the balance tilted in his favour---Petition was accepted by setting aside the impugned order and Area Magistrate was directed to deliver the Car to the petitioner.

Hassan Muhammad v. Nazar Hussain and others 2005 SCMR 1063; Akhtar Hussain v. Station House Officer and others 2007 PCr.LJ 1552; Amjad Ali Khan v. The State and others PLD 2020 SC 299; Mst. Shaheen Begum v. SHO (ACLC) and others 2005 MLD 176; Sardar Ali v. Judge Special Court, Multan and another 1996 MLD 460; Ali Haider alias Papu v. Jameel Hussain and others PLD 2021 SC 362; Syed Ali Nawaz Gardezi v. Lt.-Col. Muhammad Yusuf PLD 1963 SC 51; Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others 2006 SCMR 193; Muhammad Ishaque Qureshi v. Sajid Ali Khan and another 2016 SCMR 192; Wajeeh-ul-Hassan v. The State 2019 SCMR 1994 and Muhammad Samiullah v. The State 2022 SCMR 998 rel.

Shahid Azeem for Petitioner.

Rana Tasawar Ali Khan, Deputy Prosecutor General, with Wali Muhammad/SI, and Zulfiqar Ahmad Butt, Motor Registring Authority-VI for the State.

Shahid Ali Shakir for Respondent No.4.

2024 Y L R 1394

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mst. SAIDAN (widow) and others---Petitioners

Versus

MUHAMMAD YOUSAF and 2 others---Respondents

Civil Revision No. 270-D of 1997, heard on 20th September, 2023.

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

----Ss. 42 & 54---Colonization of Government Lands (Punjab) Act (V of 1912), S. 19-A---Suit for declaration and injunction---Succession to tenancy---Limited owner, right of---Suit filed by respondents/plaintiffs seeking their right of inheritance in suit property was decreed in their favour by Trial Court as well as by Lower Appellate Court---Validity---Respondents/plaintiffs could not have any vested right with regard to property/estate of their predecessor-in-interest during life time of her mother---Right to succession came into existence on the death of limited owner, as the property had reverted to original owner i.e. father of predecessor-in-interest of respondents/plaintiffs---On termination of limited interest of widow, the succession was open under S. 19-A of Colonization of Government Lands (Punjab) Act, 1912, to all persons who would have been entitled to inherit the property at the time of death of last full owner and at that time predecessor-in-interest of respondents/plaintiffs was alive--- Respondents / plaintiffs were entitled to share of their predecessor-in-interest which she had inherited from her father---Mutation which was sanctioned to the exclusion of legal heirs of deceased was nothing but a waste of paper, running counter to Shariah by which Muslim right holders are governed---High Court in exercise of revisional jurisdiction declined to interfere in concurrent findings of facts by two Courts below---Revision was dismissed, in circumstances.

(b) Muslim Family Laws Ordinance (VIII of 1961)---

----S. 4---Inheritance---Children from pre-deceased son/daughter---Principle---Grand children are entitled to receive share equal to the share of their mother or father in view of S. 4 of Muslim Family Laws Ordinance, 1961---Only condition to such entitlement is that succussion should open after promulgation of Muslim Family Laws Ordinance, 1961.

PLD 1961 Central Statutes at Page 337; Allah Rakha and others v. Federation of Pakistan and others PLD 2000 FSC 1; Yusuf Abbas and others v. Mst. Ismat Mustafa and others PLD 1968 Kar. 480; Sakhi Muhammad v. Ahmad Khan and 3 others 1980 CLC 1006; Ibrahim and 3 others v. Nehmat Bi and 5 others PLD 1988 Lah. 186 and Kamal Khan alias Kamala v. Zainab Bibi PLD 1983 Lah. 546 rel.

(c) Islamic law---

----Inheritance--- Limitation--- Appli-cability---Limitation does not preclude a person to get his share from inheritance.

Sajjad Hussain Tangra and Sohail Nawaz for Petitioners.

Israr Hayat Sulehri and Ghulam Nabi Tahir for Respondents.

2024 Y L R 1406

[Lahore]

Before Shams Mehmood Mirza, J

USMAN DAR---Appellant

Versus

FEDERATION OF PAKISTAN through Secretary, Interior Division and 2 others---Respondents

Writ Petition No. 18424 of 2024, decided on 27th March, 2024.

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

----S. 3---Constitution of Pakistan, Arts. 4, 9 & 15---Standing Order No. 2 of 2018 dated 27-04-2018---Blacklisting a person from going abroad---Provisional National Identification List---Continued inclusion---Right to travel abroad---Scope---Petitioner/politician, desirous of performing Umra along with his family, was aggrieved by continuous inclusion of his name in Provisional National Identification List---Plea of the respondents (Federal Investigation Agency etc.) was that the number of FIRs had been registered against the petitioner--- Validity--- Standing Order No. 2 of 2018 dated 27-04-2018 formulated the Standing Operating Procedure to regulate Provincial National Identification List---Said Notification, while providing a proper mechanism, envisages that name of the person in FIR involved in heinous crimes shall remain on Provisional National Identification List for period of 30 days and placement of name shall expire after lapse of 30 days---However, in the case of petitioner, admittedly, the process as envisaged by the provisions of Standing Order was not followed---Resultantly, the name of the petitioner ought to have automatically been taken off from the Provisional National Identification List---Respondents had no authority to blacklist a person from going abroad and the right to travel is an integral part of the fundamental rights to life and liberty---Pendency of the case against accused can not be a ground to deprive him from his right to travel abroad---High Court declared the continued inclusion of the name of the petitioner on Provisional National Identification List as without lawful authority and of no legal effect, and directed the respondents to allow the petitioner and his family members to travel abroad for performance of Umra---Constitutional petition was allowed in circumstances.

Sheikh Shan Ilahi v. Federation of Pakistan and others through Secretary Ministry of Interior, Islamabad and others PLD 2023 Lah. 359 ref.

Abuzar Salman Khan Niazi for the Petitioner.

Sheraz Zaka and Muhammad Hamza Sheikh, Assistant Attorney General.

Jamshed Nadeem, Assistant District/FIA Lahore.

A.D. Dhakku, Inspector Legal C.P.O. and Ehsan S.I. P.S. Cantt. Sialkot.

2024 Y L R 1466

[Lahore]

Before Malik Shahzad Ahmad Khan and Mirza Viqas Rauf, JJ

AAMIR HAYAT---Appellant

Versus

The STATE and others---Respondents

Criminal Appeal No. 193965 and Murder Reverence No. 137 of 2018, heard on 12th March, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of twelve hours in lodging the FIR---Consequential---Accused was charged for committing murder of the son of the complainant by firing---Alleged occurrence took place at 07:10 am whereas it was reported to the police at 07:30 p.m., thus, there was delay of more than twelve hours---Explanation to that effect was although offered that on account of precarious condition of deceased, he was initially shifted to DHQ hospital from where he was referred to other Hospital for further treatment, where he succumbed to the injuries and took his last breath---Apparent from the record that despite having ample time to report the matter to the police, the complainant took considerable time for the said purpose---Prosecution had not been able to ably explain the delay in lodging the FIR---Said delay surely occurred for the purpose of deliberation and concoction---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Non-availability of justification for the presence of eye-witnesses at the time and place of occurrence---Chance witnesses---Accused was charged for committing murder of the son of the complainant by firing---Alleged occurrence was not witnessed by complainant---Complaint was lodged on the basis of information furnished by two witnesses who were purportedly the eye-witnesses of the occurrence---Both the said witnesses were not residents of the vicinity and they were residing at faraway places from the venue of occurrence---Apparently both the witnesses were chance witnesses and in order to establish their presence at the venue of occurrence, they were supposed to provide satisfactory explanation with regard to their presence at the site at the relevant time---From the perusal of their statements it could easily be inferred that they were unable to give a plausible explanation with regard to their presence at the place of occurrence when the alleged offence took place---One of the eye-witnesses was brother of the complainant and uncle of the deceased whereas other witness was close friend of the deceased who even failed to justify his presence at the place of occurrence in the early hours of the day in the company of brother of complainant---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

----Witness---Chance witness, evidence of---Reliance---Chance witness is a witness who claims that he was present at the crime spot well in time though his presence in ordinary course of business was a sheer chance---Testimony of chance witness is always to be examined by the Courts with a hard look as in normal course the presumption would be that such witness was not present at the crime spot.

Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account not supported by medical evidence---Accused was charged for committing murder of the son of the complainant by firing---Record showed that the ocular account furnished by the eye-witnesses did not find support from the medical evidence---As per allegations recorded in the FIR and the statements of the complainant and eye-witnesses, the accused fired two shots with his pistol at the body of the deceased which landed on his face and left arm whereas accused "I" fired at the deceased which hit him on his abdomen---Contrary to that, Medical Officer, who conducted postmortem of the deceased entered into witness box and gave description of injury as injury No.5 "a firearm wound of reentry 3 x 1 cm on interio lateral side of left forearm, 03 cm below left elbow joint crease" which clearly negated the version of the witnesses that the accused fired two shots one of which hit on the left arm of the deceased---Said material conflict in the oral account and the medical evidence lent support to the conclusion that the occurrence was in fact not witnessed by eye-witnesses---Appeal against conviction was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Forensics of weapon and crime empties---Weapon of offence and crime empties not matching---Accused was charged for committing murder of the son of the complainant by firing---Though claim of the prosecution that pistol .30 bore was recovered from the accused on 08.03.2016 which was taken into possession through recovery memo but as per report of Forensic Science Agency, pistol purportedly recovered from the accused, when examined was not found matched with the crime empties collected from the place of occurrence---Recovery of pistol and the crime empties in the circumstances was, thus, completely inconsequential---Appeal against convic-tion was allowed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the son of the complainant by firing---Motive behind the occurrence was stated to be a quarrel that took place between accused and deceased over playing volleyball---Prosecution had though set up a specific motive for the offence but it was neither stated by the witnesses with full heart nor proved at all---Appeal against conviction was allowed, in circumstances.

(g) Criminal trial---

----Benefit of doubt--- Principle---Whenever, a reasonable doubt emerged with regard to the involvement of the accused in the alleged offence, he should be benefitted with the same without any hesitation---For the said purpose, it is not necessary that there should be multiple anomalies creating doubt in the prosecution case---A single circumstance creating reasonable doubt would be sufficient.

Burhan Moazzam Malik, Mian Tabassum Ali and Khaqan Moazzam Malik assisted by Mohsin Nawaz Sial (Defense Counsel at state expense) for Appellant.

Rai Akhtar Hussain, Additional Prosecutor General for the State.

Sarfraz Khan Gondal for the Complainant.

2024 Y L R 1510

[Lahore]

Before Malik Shahzad Ahmad Khan and Farooq Haider, JJ

ABU BAKAR alias SAMOSA and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 228667-J, 213552, P.S.L.A. No. 211801, Criminal Revision No. 211803 of 2018 and Murder Reference No. 04 of 2019, decided on 21st December, 2023.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Unexplained delay of ten hours and forty five minutes in lodging the FIR---Accused were charged for committing murder of the husband of the complainant by firing---As per case of prosecution, occurrence took place at about 08.15 pm on 11.11.2015---Complainant came to police station at 07.00 am, submitted application for registration of case and resultantly FIR was recorded---Though after the occurrence, first preference was to shift the injured to hospital for medical treatment and then to register the case and time consumed in shifting of injured justified delay in reporting the occurrence to the police, yet it had to be proved by the prosecution that complainant carried deceased in injured condition to hospital and time/period which was consumed for bringing him to hospital as well as in his medical treatment, and if actual time spent for said purpose tallied with the period of delay in reporting matter to police, then said delay was termed as explained delay and could not be considered as fatal for prosecution---Therefore, in the present case, prosecution was bound to prove that deceased was shifted in injured condition to hospital by cited eye-witnesses and he died during medical treatment---However, any entry of register of Hospital regarding arrival of injured there, any record of provision of any medical treatment to him there, copy of his Medico-Legal Examination Certificate issued by hospital, copy or record of his referral slip from there to DHQ hospital, copy of record of any entry showing his arrival there in DHQ hospital, copy of his medical treatment chart or any record showing detail of his medical treatment there, copy of his death certificate issued from DHQ hospital or any other document issued by said hospital to show that he expired during medical treatment there and any document to show that when i.e. at what time, he expired, had not been produced by the prosecution---So much so the doctor who provided medical treatment to injured in Civil Hospital, and referred him to DHQ Hospital, had not been produced to prove the same---Similarly, doctor who medically treated him in DHQ Hospital, and under whose treatment, he died, had also not been produced---Furthermore, any document issued by said hospital to show that when i.e. at what time deceased was brought in injured condition in Civil Hospital, when i.e. at what time he was received in DHQ Hospital, at what time his dead body was handed over from DHQ Hospital, and when it was received in dead house of Civil Hospital, had also not been produced---So, afore-stated claim of the prosecution that deceased of the case was first taken to Civil Hospital, in injured condition, then to DHQ Hospital, where he remained under medical treatment and then died after 1½ hours of arrival in said hospital, could not be proved---Hence, prosecution could not prove reason for delay in reporting the matter to police---Thus, there was unexplained and considerable delay of about 10-hours and 45 minutes in registration of the case---Appeal against conviction was allowed, in circumstances.

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

----S. 154---First Information Report---Delay in lodging FIR---Effect---When there is delay in reporting the incident to the police, then prosecution is under obligation to explain such delay and failure to do that would badly reflect upon the credibility of prosecution version.

Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Delay in conducting post-mortem upon the dead body of the deceased---Accused were charged for committing murder of the husband of the complainant by firing---Record showed that post-mortem examination over dead body of the deceased was conducted at 11:30 p.m. on 12.11.2015 and there was no administrative reason in hospital for delay in autopsy of dead body rather it was due to receiving of documents from police at 11:15 p.m. on 12.11.2015---Record reflected that FIR was not recorded even at the stated time rather with much delay, however ante-time was mentioned in it and it further suggested that none of the cited eye-witnesses was present at the "time and place" of occurrence---Time was consumed for procuring, introducing, engaging eye-witnesses as well as tailoring/ concocting the story after deliberation and consultation for the prosecution and then the case was registered in its present form and police papers were completed for postmortem examination---Therefore, neither any sanctity nor evidentiary value could be attached to the FIR in the case and it could not provide any corroboration to the case of prosecution against the accused rather it had lost its efficacy and damaged the case of prosecution---Appeal against conviction was allowed, in circumstances.

Haroon Shafique v. The State and others 2018 SCMR 2118; Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068; Muhammad Adnan and another v. The State and others 2021 SCMR 16 and Ghulam Mustafa v. The State 2021 SCMR 542 rel.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Ocular account not proved---Accused were charged for committing murder of the husband of the complainant by firing---Prosecution produced complainant/wife of deceased, brother of deceased and brother-in-law of deceased as an eye-witnesses of the occurrence---Admittedly, complainant was not an eye-witness of the occurrence rather she received information through phone regarding the occurrence---Both the witnesses claimed that they shifted deceased in injured condition to Civil Hospital and then to DHQ Hospital, where he expired after 1½ hours during medical treatment but prosecution did not produce any document from said hospitals to show that the deceased was brought there by those witnesses---While taking into consideration all the afore-mentioned reasons collectively, ocular account produced by the prosecution had not been found as confidence inspiring or truthful, therefore, same could not be relied upon and had to be discarded---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Chance witnesses---No justification available for the presence of witnesses at the time and place of occurrence---Accused were charged for committing murder of the husband of the complainant by firing---In FIR, it was mentioned that occurrence was witnessed in light---Eyewitness took the same stance during his evidence---Similarly, other eye-witness did not claim availability of any light at the time and place of occurrence---Both the eye-witnesses neither had residence nor business place at or adjacent to the place of occurrence, therefore, they both were chance witnesses---Though eye-witnesses claimed that they were going after taking tea from a tea shop yet neither name of said tea shop was disclosed nor owner or any serving boy/person of said tea shop was produced in support of said claim---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Witnesses, evidence of--- Dishonest improvement---Witness who introduces dishonest improvement or omission for strengthening the case can not be relied upon.

Muhammad Arif v. The State 2019 SCMR 631 and Khalid Mehmood and another v. The State and others 2021 SCMR 810 rel.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Audio and video clip on record---Not proved according to laws of evidence---Accused were charged for committing murder of the husband of the complainant by firing---Record showed that video of deceased in injured condition was made by Court witness through mobile phone on 11.11.2015 at 08:30 p.m., who prepared CD of this video and handed over the same to Investigating Officer on 10.02.2016 through recovery memo---As per own claim of the prosecution, said video was prepared at 08:30 p.m. on 11.11.2015 but question was why it was not produced to the police during same night by Court witness or at the time of registration of case or on that day and why it was produced after about 3-months of the occurrence---Any convincing, plausible, cogent and acceptable reason appealing to a common prudent man could not be brought on the record by the prosecution---In the FIR, presence of Court Witness with deceased in injured condition in Civil Hospital was not mentioned---Statement of any doctor that deceased remained in injured condition in Civil Hospital, or he was fit to make statement or Court witness was accompanying said injured, was not available on the record---As per claim of Court witness, statement of injured was recorded on mobile phone, then subsequently converted to CD but admittedly said mobile was neither produced during investigation nor during trial rather only CD was produced---Though conversation recorded in audio or video could be proved yet production of actual record of conversation was necessary for the same---Therefore, due to non-production of mobile of Court witness wherein statedly said conversation of injured was recorded, said conversation had not been proved and by production of afore-mentioned CD, said conversation could not be proved; therefore, its forensic analysis was of no avail---Appeal against conviction was allowed, in circumstances.

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

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence is merely supportive/confirmatory type of evidence---Medical evidence can tell about locale, nature, magnitude of injury and kind of weapon used for causing injury but it can not tell about identity of the assailant who caused the injury.

Sajjan Solangi v. The State 2019 SCMR 872 rel.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Recovery of weapon of offence---Inconsequential---Accused were charged for committing murder of the husband of the complainant by firing---Record showed that nothing was recovered from three accused persons whereas on 25.03.2016, a pistol .30 bore was recovered on the pointing out of one of the accused persons but empties/cartridge cases secured from the place of occurrence were not found to have been fired from said pistol as per report of Forensic Science Agency---Thus, said recovery was inconsequential and of no help to the prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148, 149 & 109---Qatl-i-amd, rioting armed with deadly weapon, unlawful assembly, abetment---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused were charged for committing murder of the husband of the complainant by firing---In the application, FIR and complaint, it was mentioned that deceased was an eye-witness of case arising out of an FIR registered under S. 302, P.P.C, due to which present occurrence took place---Admittedly, none of the present accused persons was accused in the said FIR; so it was not directly against them---Furthermore, motive is a double edged weapon, it cuts both the ways, it can also be a reason for false implication; even otherwise, when substantive evidence has been discarded, then motive loses its significance and becomes immaterial for conviction---Appeal against conviction was allowed, in circumstances.

(k) Criminal trial---

----Benefit of doubt---Principle---Single dent/circumstance in case of prosecution is sufficient for acquittal.

Abdul Ghafoor v. The State 2022 SCMR 1527 rel.

Mrs. Nighat Saeed Mughal for Appellants (in Crl. Appeal No.228667-J of 2018).

Ch. Sajid Ali Bull for Appellant and with Jamshed and Javed (in Crl. Appeal No.228667-J of 2018).

Muhammad Asif Bhatti along with Dabeer Ali Awan for Appellant and with Master Ansar (in Crl. Appeal No.213552 of 2018).

Munir Ahmad Sayal, Additional Prosecutor General for the State.

Asghar Ali Gill for the Complainant (in Crl. Appeal No.228667-J of 2018, Crl. Appeal No.213552 of 2018, Petitioner in P.S.L.A. No.211801 of 2018 and Crl. Revision No.211803 of 2018).

2024 Y L R 1588

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Mirza Viqas Rauf, JJ

UMER DRAZ and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeal No. 44377, Criminal Revision No. 55096, Murder Reference No. 223 and P.S.L.A. No. 55094 of 2019, heard on 20th February, 2024.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused were charged for making firing upon the complainant party, due to which four persons of the complainant party died whereas one sustained firearm injuries---Time, date, month, and year of occurrence were not disputed---Place of occurrence was Kacha path near the Dera of the accused persons which was also not denied, where the complainant party of the present case had apparently no business as two deceased persons could go through the different route leading to their houses and selecting a "Kacha" path in question near the Dera of accused persons and summoning of the other deceased along with complainant with the plea that they needed their help as their "Vehicle" loaded with wood was stuck near Dera of the accused persons was neither plausible nor believable---Investigating Officer stated in his cross-examination that he had not mentioned in site plan of the place of occurrence that vehicle was stuck off at point No.14 because complainant and witnesses of the case had not pointed out the same---Investigating Officer had not found helping machinery such as tractor etc. at the place of occurrence to remove vehicle from there---Said witness admitted in his cross-examination that complainant, witnesses and deceased of the case had no landed property around or in the close vicinity of the place of occurrence---Investigating Officer had found heavy arms and ammunition including drum-magazines from near the dead bodies of deceased persons---Said witness had collected numerous crime empties from the place of occurrence of deceased---All the said facts suggested that occurrence had not taken place in the manner alleged by the prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Co-accused were acquitted on same set of evidence---Accused were charged for making firing upon the complainant party, due to which four persons of the complainant party died whereas one sustained firearm injuries---Record showed that six accused persons were acquitted from the charge by extending the benefit of doubt---Record showed that all Investigation Officers had found no incriminating material against seven accused persons and they had also verified their pleas of alibi---Trial Court held that prosecution had failed to prove the charge against said co-accused persons beyond the shadow of reasonable doubt and they were acquitted from the charge by extending the benefit of doubt---In presence of said observation of the Trial Court, the accused persons could not have been convicted while acquitting their co-accused with similar role by disbelieving complainant and witness---Appeal against conviction was allowed, in circumstances.

(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---Ocular account not supported by medical evidence---Accused were charged for making firing upon the complainant party, due to which four persons of the complainant party died whereas one sustained firearm injuries---Medical Officer during post mortem examination on the dead body of one deceased observed single firearm entry wound on back of his scalp (jointly attributed to accused persons and their co-accused, seven in number, since acquitted)---Likewise, Medical Officer during post mortem examination on the dead body of other deceased observed single firearm entry wound on his chin---Medical Officer also observed single firearm entry wound on the skull of another deceased (jointly attributed to accused persons and their co-accused since acquitted)---Said injuries on the persons of all the deceased negated the story of prosecution that ten accused made joint effective firing---Appeal against conviction was allowed, in circumstances.

(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---Presence of the eye-witnesses at the time and place of occurrence not proved---Accused were charged for making firing upon the complainant party, due to which three persons of the complainant party died whereas one sustained firearm injuries---Statedly, eye-witnesses of the occurrence reached the place of occurrence and saw the occurrence after receiving telephonic call made by deceased at 1.45 p.m. on 16.05.2015 when they were sitting at the Dera of complainant but call data in that respect had not been produced to establish such fact---Eye-witnesses were not residents of place where the occurrence took place---Said witnesses also did not receive any injury during the occurrence despite cross firing claimed by them in their story/statements which was neither plausible nor believable and had already been disbelieved by the Trial Court to the extent of co-accused (since acquitted)---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence and crime empties---Lack of forensic report---Accused were charged for making firing upon the complainant party, due to which three persons of the complainant party died whereas one sustained firearm injuries---Record showed that nothing was recovered on pointing out of one accused---Recovery of 30-bore pistol,Kalashnikov and 12-bore gun on pointing out of three accused persons respectively in absence of positive report of Forensic Science Agency regarding matching of crime empties with weapons of offence was inconsequential--- Appeal against con-viction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---If the prosecution fails to prove its case against an accused person then the accused persons is to be acquitted even if he has taken a plea and has admitted killing the deceased.

Azhar Iqbal v. The State 2013 SCMR 383 rel.

(g) Criminal trial---

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

Azam Nazeer Tarar, M. Irfan Malik and Rida Noor for Appellants.

Naveed Ahmad Warraich, DDPP for the State.

Mian Pervez Hussain, Omais Nasir and Saima Asif Rana for the Complainant.

2024 Y L R 1619

[Lahore (Multan Bench)]

Before Sardar Muhammad Sarfraz Dogar, J

MUHAMMAD AKMAL---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 1554-B of 2023, decided on 11th September, 2023.

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

----S.497---Bail---Tentative assessment---Scope---While deciding bail, only tentative assessment is to be made and deeper appreciation is neither permissible nor desirable.

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

----S. 497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, grant of---Medical grounds---Blindness in both eyes---Scope---Petitioner was charged for committing murder of the deceased by firing---Through instant petition, the petitioner had taken a specific plea of grant of bail on medical grounds i.e. during his incarceration in the jail, he had lost sight in both of his eyes and had become blind, and therefore, his further incarceration in jail was dangerous to his health and life---To substantiate that plea, the Medical Superintendent of the Hospital was directed to constitute a Board of not less than five members including a specialist for assessment of the vision of both eyes of the petitioner---In compliance thereof, Board comprising Medical Superintendent, Ophthalmolo-gist, ENT Surgeon, Neurosurgeon and Neurophysician was constituted, which examined the petitioner---Said Board submitted its report before the Court which encompassed the opinions of all of the specialists---Taking into consideration the report of Medical Board constituted in compliance of order of High Court and documents annexed with the petition, prima facie, it had been established on record that the petitioner had a known history of "night blindness" since childhood, which had now developed into day blindness also---Moreover, there was no perception of light in both the eyes of petitioner and there was absence of direct and consensual light reflexes---Nothing was on record which could suggest that the cure for such a patient of "Retinitis Pigmentosa" was available in jail---Blindness in both the eyes was admittedly not just a disease but, due to non-availability of medical treatment, a permanent disability of the petitioner which made him most vulnerable and there was every likelihood that in existence of such a permanent disability, the life of petitioner would be constantly in danger as it required constant and around the clock care, which were admittedly not available in jail---Complainant had failed to counter the opinion/findings of Medical Board in its report---While, on the other hand, the medical report, was highly technical and opinion expressed by the medical board could not be brushed aside lightly by the Court in the absence of any counter-opinion or any medical literature placed before the court to contradict the opinion given by the Board---Investigation was complete---Physical custody of petitioner was no more required by the police for further investigation---Thus, his further incarceration for an indefinite period would serve no useful purpose for the prosecution---Petition was accepted and petitioner was granted bail.

Sharjeel Inam Memom v. National Accountability Bureau 2018 SCMR 2023 ref.

Mian Nazir Ahmad v. The State and others 2016 SCMR 1536; Khawaja Anwer Majid v. National Accountability Bureau through Chairman NAB and another PLD 2020 SC 635; Sardar Amjad Ali Khan v. The State 2009 SCMR 425; Abbas v. The State 2000 SCMR 212; Haji Meer Aftab's case 1997 SCMR 320; Malik Muhammad Yousafullah Khan v. The State and another PLD 1995 SC 58 and 2018 SCMR 2023 rel.

James Joseph for Petitioner.

Hassan Mehmood Khan Tareen, Deputy Prosecutor General for the State with Khizar Inspector.

2024 Y L R 1628

[Lahore]

Before Muhammad Amjad Rafiq, J

Syed FAHEEM UL HASSAN---Appellant

Versus

INSPECTOR-GENERAL OF POLICE, PUNJAB and 4 others---Respondents

Writ Petition No. 1075 of 2024, decided on 25th March, 2024.

Constitution of Pakistan---

----Art.199---Habeas corpus petition---Recovery of detenu---Scope---Petitioner sought recovery of his brother from the illegal confinement of Police---Police claimed that the detenu required in number of cases was arrested in a case registered under S. 392, P.P.C., being nominated through supplementary statement of the complainant and while remaining on physical remand with police had been lodged to judicial custody---Validity---If the accused was in a judicial custody in another case, granting of further physical remand by the Magistrate in case FIR under S. 392, P.P.C., was not illegal, but in order to further ascertain the contention of the petitioner that detenu was not lodged to judicial custody pursuant to order of Magistrate dated 29.12.2023 in case under Ss. 392/411, P.P.C., a report from Superintendent District Jail was requisitioned which was received to the effect that detenu was not lodged in the jail pursuant to order of Magistrate dated 29.12.2023 in FIR under Ss. 392/411, P.P.C.---Thus, High Court by virtue of order dated 20.02.2024 directed Capital City Police Officer to conduct an inquiry in the matter, register a criminal case against delinquent police officers/ officials and submit report to High Court---Said report had been submitted---Capital City Police Officer, after conducting inquiry, had found the delinquent Police Officials as responsible for committing criminal breach of duty and in compliance whereof an FIR under Art. 155(1)(c) of the Police Order, 2002, stood registered---Petitioner stated that now after granting bail to the detenu by concerned Court he had been set at liberty---As Police had also conceded the commission of criminal act by respondents, therefore, constitution petition stood disposed of.

Ghulam Sarwar v. The State 1984 PCr.LJ 2588; Razia Pervaiz v. The State 1992 PCr.LJ 131; Shah Nawaz and Ranjhoo v. The State NLR 1996 Cr.LJ 116; Dil Muhammad v. The District Magistrate, Quetta and 3 others 1997 PCr.LJ 1203; Parvez Elahi v. Care Taker Government of Punjab and others PLJ 2024 Lahore 43; Adeel and another v. The State 2016 YLR 2212; Mahmud Ali Kasuri, Bar-at-Law v. Punjab Government through Secretary, Home Affairs and 3 others PLD 1977 Lah. 1400; Dil Muhammad v. District Magistrate Quetta and others PLJ 1997 Quetta 137; State v. Sukhsingh and others 1954 AIR (Raj.) 290; 1955 RLW 46; 1954 Cri.LJ 79; 1954(4) ILR (Rajasthan) 413; Ghulam Rubbani and 3 others v. The State and another PLD 1971 Lah. 741; State v. Fateh Mohammad 1972 SCMR 182; Messrs Jagathi Publications Ltd., rep., by Y. Eshwara Prasad Reddy v. Central Bureau of Investigation, Hyderabad" 2012(2) ALT (Crl.) 285; 2013 CriLJ 118; 2013(2) CCR 98; 2014(10) R.C.R. (Criminal) 84 and 2012(2) Andh LD (Criminal) 762 rel.

Kamil Hussain Naqvi for Petitioner.

Syed Farhad Ali Shah, Prosecutor General Punjab.

Imran Abbas Sahi, A.A.G. with Javed DSP.

2024 Y L R 1653

[Lahore]

Before Tariq Saleem Sheikh, J

MUNAWAR HUSSAIN---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 67328-B of 2023, decided on 27th November, 2023.

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

----S. 498---Penal Code (XLV of 1860), Ss. 365-B, 420, 468 & 471---Marrying two sisters at the same time, cheating, fraud and forgery---Bail, refusal of---Petitioner faced an accusation of simultaneously marrying two real sisters, while the second marriage was deemed fasid rather than batil, it still carried culpability---Petitioner's defence hinged on his claim that he divorced his first wife on 10.7.2023 before marrying with the sister of his first wife on 19.7.2023---However, this defence fell short as the marriage took place before the completion of Iddat period of his first wife---Such situation parallels the conjunction of two sisters during the subsistence of the first sister's marriage, which entailed criminal liability---During the investigation, the petitioner provided a photocopy of the Divorce Deed dated 10.7.2023---Investigating Officer repeatedly asked him to produce the original document but he did not---Investigating Officer discovered that the deed was neither registered with the relevant Union Council nor recorded in the stamp vendor's register despite bearing his rubber stamp on the back---Considering such circumstances, Investigating Officer added Ss. 420, 468 & 471, P.P.C., in the FIR later---Out of these, S. 420, P.P.C., was cognizable--- Complainant specifically alleged in the FIR that the petitioner abducted his sister and coerced her into an illicit marriage---Thus, from the contents of the FIR, S. 365-B P.P.C was made out---Since it was a cognizable offence, the police were justified in registering the FIR---When a person approached the officer in-charge of a police station to register an FIR, the determining factor for him was whether the information laid before him pertained to the commission of a cognizable offence---If, during the investigation, it turned out that a non-cognizable offence, rather than a cognizable offence, had been committed, it did not invalidate the proceedings, as the provisions of S. 155, Cr.P.C., did not apply---Application for pre-arrest bail was dismissed, in circumstances.

Iftikhar Nazir Ahmad Khan and others v. Ghulam Kibria and others PLD 1968 Lah. 587; Muhammad Arif v. The State PLD 1982 FSC 292 and Kundan Mai v. The State PLD 1988 FSC 89 rel.

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

----Ss. 497 & 498---Bail---Tentative assessment---Observations made in the bail order on the factual aspects of the case are tentative---Court should decide the case in light of the evidence produced during the trial without being prejudiced by these observations.

Nisar Ahmad with the Petitioner.

Muhammad Mustafa Chaudhry, Deputy Prosecutor General, with Qamar Abbas/ASI for the State.

Nouman Shams Qazi for the Complainant.

2024 Y L R 1675

[Lahore]

Before Syed Shahbaz Ali Rizvi, J

SHEHZAD---Petitioner

Versus

The STATE and another---Respondents

Criminal Miscellaneous No. 34710-B of 2023, decided on 21st June, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of 1600 grams charas---Bail, grant of---Delayed submission of challan---Available record did not carry any justifiable explanation regarding delayed submission of challan i.e. after about 190 days despite of the fact that S. 173, Cr.P.C. directs submission of challan within 14 days and in case of incomplete investigation, an interim report was to be submitted to the Court by the SHO concerned within next three days and the Court was required to commence the trial on the basis of such interim report---Prima facie, it seemed that right of fair trial guaranteed by the Constitution stood infringed because of apparently willful abstaining from submission of challan to the Court in time---Said fact, prima facie, showed mala fide on the part of concerned officials which made the case one of further inquiry into petitioner's guilt---Mere registration of criminal cases against the petitioner and even his conviction in two of the cases was not a fact sufficient to disentitle him to the grant of post arrest bail---Petition was allowed, in circumstances and accused was granted bail.

Adnan Prince v. State through the P. G., Punjab and another PLD 2017 SC 147; Subhan Khan v. The State 2002 SCMR 1797; Gul Rehman v. The State through AG, KP, Peshawar PLD 2021 SC 795; Amjad Khan v. The State through A.G. Khyber Pakhtunkhwa and others 2021 SCMR 1458; Ram Prakash Pandey v. State of U.P. and another AIR 2001 SC 3592; Muhammad Rafique v. The State 1997 SCMR 412; Qurban Ali v. The State and others 2017 SCMR 279 and Nadeem Aslam v. The State and another 2019 YLR 415 rel.

Sajjad Mahmood Bhatti for Petitioner.

2024 Y L R 1686

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ

Rashid and others---Appellants

Versus

The STATE and others---Respondents

Criminal Appeals Nos. 725 and 839 of 2019 and Murder Reference No. 95 of 2019, heard on 3rd October, 2022.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Chance witnesses---Non-availability of justification for the presence of eye-witnesses at the time and place of occurrence---Accused were charged for committing murder of the father and brother of the complainant by firing---Prosecution case revolved around the statement of two eye-witnesses of the occurrence---Admittedly, the said witnesses were not the residents of the place of occurrence or any place near the same---According to the prosecution witnesses, the occurrence took place in a vacant plot of land situated in front of the house of a doctor---Eye-witness/complainant initially admitted that the place of occurrence was at a distance of 7 to 8 kilometers from his house, whereas the house of the other witness was at a distance of one kilometer from the house of the complainant---After admitting during cross-examination that his house was at a distance of as many as 7/8 kilometers from the place of occurrence, the complainant had changed his version and stated that his house was situated on the back side of the house of said doctor, the house in front of which the occurrence had taken place in a vacant plot of land---Such claim of the complainant that his house was on the back of the house of doctor was badly exposed to be a false claim during the cross-examination of draftsman, who in his cross-examination, gave the complete details of the houses which were present near and around the place of occurrence and also admitted that the house of the complainant was not near or around the place of occurrence---Scaled site plan of the place of occurrence as prepared by draftsman and the rough site plan of the place of occurrence as prepared by Inspector showed that the house of the complainant was not marked in the same---Other eye-witness also made an attempt to prove himself as a resident of an area around the place of occurrence, however, he too failed---Complainant during cross-examination stated that the house of the other eye-witness was at quite a distance from the place of occurrence---Statements of eye-witnesses proved that admittedly the said witnesses had no reason to be present at the place of occurrence and also they made no effort to explain as to why on the night of occurrence, at about 7.30 p.m., they were present in a vacant plot of land for no reason at all---Thus, the eye-witnesses failed to prove any reason for leaving their houses on the day of occurrence and their arrival at the place of occurrence and the same remained unproved---Names of both the eye-witnesses were neither mentioned in column No.4 nor at page 4 of the inquest reports prepared with regard to two deceased as being the witnesses who were present near the dead bodies at the time of preparation of the inquest reports---Such fact also evidenced the absence of the eye-witnesses at the place of occurrence, at the time of occurrence---Appeal against conviction was accordingly allowed.

Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Night time occurrence---Source of light not proved---Accused were charged for committing murder of the father and brother of the complainant by firing---Record showed that none of the witnesses, in their statements recorded by the Investigating Officer of the case or in their statements recorded by the Trial Court, stated that there existed any light source which was lit at the place of occurrence, which could have enabled the witnesses to have witnessed the occurrence and observed the details thereof---In their statements before the Trial Court, the witnesses stated that the occurrence had taken place at about 7.30 pm on 11.09.2016---Recognizing that error, the complainant during cross-examination went on to claim that there was source of light available at the place of occurrence in shape of electric bulbs installed for the purpose of playing cricket, however, he admitted that at the time of occurrence, no match was being played---Complainant further claimed that the electricity for lighting the bulbs was being provided by the residents of other houses near the place of occurrence---Falsity of the statement of complainant was exposed when the scaled site plan and rough site plan of the place of occurrence were perused---Perusal of the scaled site plan and the rough site plan of the place of occurrence, did not show installation of such electric bulbs at the place of occurrence---Furthermore, the Investigating Officer of the case did not take into possession any such source of light which was available and lit at the place of occurrence---Investigating Officer of the case admitted that she had to arrange for light source at the time of her visit to the place of occurrence, on the night of occurrence, as none was available there---Absence of any light source had made the whole prosecution case doubtful---Appeal against conviction was accordingly allowed.

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.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay of more than 21 hours in conducting postmortem examination over the dead bodies---Consequential---Accused were charged for committing murder of the father and brother of the complainant by firing---Record showed that the occurrence took place at about 07.30 p.m. on 11.09.2016, and the post-mortem examinations of the dead bodies of the deceased were conducted after much delay at about 05.00 p.m. on 12.09.2016---According to Medical Officer, he on 12.09.2016 at about 05.00 pm conducted the post-mortem examination of the dead body of one deceased and the post-mortem examination of the dead body of other deceased after about 16.5 hours of the occurrence---Medical Officer also noted developed rigor mortis at the time of conducting the post-mortem examinations---No explanation was offered to justify the delay in conducting the post-mortem examinations of the dead bodies---Not only the post-mortem examinations of the dead bodies were delayed by as many as 16.5 hours, but the police papers were also handed over to Medical Officer at about 05.00 pm on 12.09.2016---Such inordinate, unexplained and substantial delay in the post-mortem examinations of the dead bodies and submission of the police papers to the Medical Officer clearly established that the witnesses claiming to have seen the occurrence or having seen the accused escaping from the place of occurrence had not seen the occurrence and were not present at the time of occurrence and the delay in the post-mortem examinations was used to procure their attendance and formulate a dishonest account of the occurrence, after consultation and planning---Appeal against conviction was accordingly allowed.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel.

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

----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S. 103---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of incriminating material from the possession of the accused persons---No private person associated at the time of recovery proceedings---Consequential---Accused were charged for committing murder of the father and brother of the complainant by firing---Record showed that pistol and two live bullets were recovered from one accused, whereas a motorcycle, pistol and two live bullets were recovered from the other accused---Such recoveries could not be relied upon as the Investigating Officer (IO) of the case did not join any witness of the locality during the said recoveries, which action of IO was in clear violation of the provisions of the S.103, Cr.P.C---Thus, the evidence of recoveries could not be used as incriminating evidence against the accused persons, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence---Appeal against conviction was accordingly allowed.

Muhammad Ismail and others v. The State 2017 SCMR 898 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Delay in sending the recovered empties for analysis---Consequential---Accused were charged for committing murder of the father and brother of the complainant by firing---Investigating Officer of the case arrested the accused persons on 26.09.2016; however the empty shells of the bullets taken into possession from the place of occurrence were sent to Forensic Science Agency on 06.10.2016 when there was no reason for keeping the empty shells, which were taken into possession on 11.09.2016, at the Police Station and not sending them to the office of Forensic Science Agency till after the accused persons had been arrested---In such manner the said report of Forensic Science Agency had no evidentiary value as the possibility of fabrication was apparent---With regard to the recovery of motorcycle from the accused, the eye-witnesses did not mention either the registration number or even the make or the colour of the motorcycle which was allegedly used by the accused persons to arrive at the place of occurrence,therefore, the recovery of the motorcycle could not be used as proof of any fact in issue or any relevant fact---Appeal against conviction was accordingly allowed.

Muhammad Amin v. The State and another 2019 SCMR 2057 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of the father and brother of the complainant by firing---Motive of the occurrence as stated by the eye-witnesses was that before the occurrence, co-accused instigated the accused persons to murder the deceased as revenge for not returning two women to the accused party---As per statements of the witnesses, the motive as alleged could not be proved---Both the said women neither joined the investigation of the case nor the prosecution produced them before the Trial Court in support of the alleged motive---Eye-witnesses did not even make an effort to provide any details regarding the dispute over women---It was not even brought on record that as to when the said women were abducted, if indeed they were, and with whom they were residing at the time of occurrence and who had refused to return them---Failure of the Investigating Officer of the case to join said women in the investigation of the case reflected poorly on the prosecution case---It was not even proved whether any women existed regarding whom the motive of the occurrence was alleged---Eye-witnesses failed to provide evidence enabling to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the accused persons to have committed the qatl-i-amd of the deceased---Moreover, there was an evocative muteness in the prosecution case with regard to the particulars of the motive alleged---No independent witness was produced by the prosecution to prove the motive as alleged---Appeal against conviction was accordingly allowed.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(g) Criminal trial---

----Medical evidence---Scope---Conviction cannot be upheld on the basis of medical evidence alone.

Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(h) Criminal trial---

----Benefit of doubt---Principle---If only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. the State 2021 SCMR 736 rel.

(i) Appeal against acquittal---

----Double presumption of innocence---Scope---Once an acquittal is recorded in favour of accused facing criminal charge, he will enjoy double presumption of innocence---Therefore, the Court competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse.

Muhammad Inayat v. The State 1998 SCMR 1854 and Mst. Sughran Begum and another v. Qaiser Pervaiz and others 2015 SCMR 1142 rel.

Muhammad Aslam Khan Dhukkur for Appellants.

Muhammad Ali Shahab, Deputy Prosecutor General for the State.

Ch. Ashfaq Ahmed Khan for Complainant.

Date of hearing: 3rd October, 2022.

Judgment

Sadiq Mahmud Khurram, J.--- Rashid son of Riaz and Saqib son of Riaz (convicts) were tried along with Riaz son of Ghulam Sarwar and Mustansar son of Riaz (both since acquitted), the co-accused of the convicts, by the learned Additional Sessions Judge, Multan in the case FIR. No. 803 of 2016 dated 11.09.2016 registered in respect of offences under sections 302,34 and 109, P.P.C. at the Police Station Cantt.Multan, District Multan for committing the Qatl-i-Amd of Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam (deceased). The learned trial court vide judgment dated 19.07.2019, convicted Rashid son of Riaz and Saqib son of Riaz (convicts) and sentenced them as infra:

Rashid son of Riaz :-

Death on two counts under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the each deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

Saqib son of Riaz :-

Death on two counts under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam (deceased) and directed to pay Rs.300,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of the each deceased and in case of default thereof, the convict was directed to further undergo six months of simple imprisonment.

The convict was ordered to be hanged by his neck till dead.

Riaz son of Ghulam Sarwar and Mustansar son of Riaz, the co-accused of the convicts, were , however acquitted by the learned trial court.

1. Feeling aggrieved, Rashid son of Riaz and Saqib son of Riaz (convicts) lodged Criminal Appeal No.725 of 2019, assailing their convictions and sentences. The learned trial court submitted Murder Reference No.95 of 2019 under section 374, Cr.P.C. seeking confirmation or otherwise of the sentences of death awarded to the appellants namely Rashid son of Riaz and Saqib son of Riaz. The complainant of the case namely Sohail Aslam also filed Criminal Appeal No.839 of 2019 against the acquittal of the accused namely Riaz son of Ghulam Sarwar and Mustansar son of Riaz. We intend to dispose of the Criminal Appeal No. 725 of 2019, Criminal Appeal No.839 of 2019 and the Murder Reference No.95 of 2019 through this single judgment.

2. Precisely, the necessary facts of the prosecution case, as narrated by Sohail Aslam (PW-2) , the complainant of the case are as under:-

"On 11.09.2016 at about 7:30 p.m. I along with my brother Zohaib, Aslam my father. Abdul Saeed and Muhammad Jhangir were present in a plot situated just in front of the house of Dr. Hafeeza situated at Shams Colony, Multan. We were talking to each other while standing there when Rashid armed with pistol, Saqib armed with pistol and one unknown person armed with dagger while riding on two motorcycles arrived at the place of occurrence. Rashid and Saqib accused persons raised I.ALKARA while saying that they will not spare them on account of taking away of their mother and sister. Thereafter. Rashid accused present in court made a shot fire with his pistol. Which hit on the right side of chest of my father Aslam (since deceased). Saqib accused present court made a short fire with his pistol, which hit the right side of the belly of my brother Zohaib. We stepped forward to rescue my father and brother but the accused persons extended threat of life so as to stop us. On our hue and cry the people of locality gathered there. The accused persons on the seeing (sic) them fled away from the spot by brandishing their weapons We transported Aslam and Zohaib to the Nishtar Hospital but Zohaib succumbed to the injuries when we entered into hospital and Aslam was admitted in hospital in injured condition.

04/05 days prior to the occurrence Riaz and Mustansar accused persons present in court came in our house and demanded to get returned Naziran and Rimshah and extended threats that in case of failure they will be done to death. In response to their father said that I have no concern with your daughter and wife in any sense. Rashid and Saqib accused persons had committed murder of my brother and father on the instigation and consultation of Riaz and Mustansar accused persons. Thereafter I made an application Ex-PB to the SHO at police station, again said at Nishtar Hospital, Multan, which bears my signature and thumb impression."

1. After the formal investigation of the case report under section 173 of the Code of Criminal Procedure, 1898 was submitted before the learned trial court and the accused were sent to face trial. The learned trial court framed the charge against the accused on 21.08.2017, which was amended on 12.03.2018, to which the accused pleaded not guilty and claimed trial.

2. The prosecution in order to prove its case got statements of as many as thirteen witnesses recorded. The ocular account of the case was furnished by Sohail Aslam (PW-2) and Abdul Saeed (PW-3). Irfan Hayat, Draftsman (PW-1) prepared the scaled site plan of the place of occurrence (Exh.PA). Muhammad Luqman (PW-4) and Muhammad Farooq (PW-5) stated that they heard Riaz son of Ghulam Sarwar and Mustansar son of Riaz, the co-accused of the convicts, both since acquitted, instigating the appellants to murder the deceased. Muhammad Akram, (PW-6) stated that on 12.09.2016, he identified the dead bodies of the deceased at the time of their post-mortem examinations and the Medical Officer also handed over the last worn clothes of the deceased to the Investigating Officer of the case after post mortem examinations. Muhammad Hanif, T/ASI (PW-7) stated that on 11.09.2016, he got recorded the formal FIR (Exh.PG) and on the same day the Investigating Officer of the case , handed over to him sealed parcels said to contain blood stained earth and empty shells of bullets and on 06.10.2016, he handed over the said parcels to Karam Hussain , ASI for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Hanif, T/ASI (PW-7) further stated that on 05.10.2016, the Investigating Officer of the case , handed over to him a sealed parcel said to contain a pistol and on 10.10.2016, the Investigating Officer of the case , handed over to him another parcel said to contain a pistol and on 24.10.2016, he handed over the said sealed parcels to Imtiaz Hussain, ASI (PW-8) for their onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Muhammad Ayyaz 686/C (PW-10) stated that on 11.09.2016, he deposited the dead bodies of the deceased at the mortuary and received the last worn clothes of the deceased from the Medical Officer after the post mortem examinations of the dead bodies. Muhammad Ayyaz 686/C (PW-10) further stated that on 05.10.2016, the appellant namely Saqib led to the recovery of pistol (P-5) and two live bullets (P-6/1-2) which were taken into possession through recovery memo. (Exh.PH) and on 07.10.2016, the appellant namely Rashid got recovered the motorcycle (P-9) which was taken into possession through recovery memo. (Exh.PJ) and on 10.10.2016, the appellant namely Rashid led to the recovery of pistol (P-7) and two live bullets (P-8/1-2) which were taken into possession through recovery memo. (Exh.PK). Attiya Naheed, Inspector (PW-13) investigated the case from 11.09.2016 till 27.10.2016, arrested the appellants on 26.09.2016, and detailed the facts of the investigation as conducted by her in her statement before the learned trial court.

3. The prosecution also got Dr. Muhammad Younis Ansari (PW-11) examined, who on 12.09.2016 was posted as Principal Medical Officer at Nishtar Hospital Multan and on the same day, conducted the post-mortem examination of the dead body of Muhammad Aslam son of Abdul Ghafoor (deceased). Dr. Muhammad Younis Ansari (PW-11), on examining the dead body of Muhammad Aslam son of Abdul Ghafoor (deceased) observed as under:-

"External Examination:

A dead body of a middle aged man, of average height and built, whitish complexion with black colored hair on the head, black mustaches, pale color, rigor mortis fully developed, P.M present over dependent parts presented with following injury:

Injury No. 1:

A lacerated wound of entry 1.5 cm x 1.5 cm with roasted skin with muzzle print, burning blackening, abraded collar, inverted margins on the right side of the lower chest 15 cm below right nipple and 10 cm from mid line.

Injury No.2:

A lacerated wound of 1.5 x 1.5 cm on the right side of abdomen, 12 cm below inferior angle of scapula, 09 cm from mid line with everted margins.

.…………………

OPINION.

All the Injuries are ante-mortem in nature and is (sic) caused by firearm weapon, as the bullet shattered and lacerated the liver (on the right side). The master gland of the body, shatter the upper pole of right kidney leading to extensive and severe haemorrhage, shock (whole peritoneal cavity was full of blood) and death. Probable time between injury and death 3 to 6 hours and between death and post mortem 12 to 15 hours."

On the same day, Dr. Muhammad Younis Ansari (PW-11) , also conducted the post-mortem examination of the dead body of Zohaib Aslam son of Muhammad Aslam (deceased). Dr. Muhammad Younis Ansari (PW-11), on examining the dead body of Zohaib Aslam son of Muhammad Aslam (deceased) observed as under:-

"External Examination:

A dead body of a young male, lean and thin, whitish complexion with black colored hair on the scalp, black mustaches. Rigor mortis fully developed, P.M lividity present over dependent parts that is over back. Presented with following injury:

Injury No.1:

A lacerated wound of entry 01 cm x 01 cm on the front and on the right side of abdomen, about 05 cm from umbilicus, with inverted margins, abraded collar with muzzle print, corresponding hole on the Qameez and Buniyan present

..

Opinion

Injury No.1 is ante-mortem in nature and is caused by firearm weapon. The bullet penetrated the large intestine on the right side, further lacerated and shattered the inferiorvenacava in the mid line, further penetrated the lopes of small intestine on the left side and embedded itself in the muscles of the posterior abdominal wall on the left side 05 cm above iliac crust from it was recovered, hole of the peritoneal cavity was full of blood, resulting in shock and death. Probable time between injury and death 2 to 3 hours and between death and post mortem 15 to 18 hours."

1. On 28.02.2019, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Muhammad Usman and Muhammad Jehangir as being unnecessary. On 04.05.2019, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Imran 2015/C as being unnecessary. On 02.07.2019, the learned Deputy District Public Prosecutor closed the prosecution evidence after tendering in evidence the report of Punjab Forensic Science Agency, Lahore (Exh. P.U.) relating to the blood-stained earth and the report of the Punjab Forensic Science Agency, Lahore (Exh. P.T) regarding the comparison of the empty shells of bullets collected from the place of occurrence and the pistols recovered from the appellants.

2. After the closure of prosecution evidence, the learned trial court examined the appellants namely Rashid son of Riaz and Saqib son of Riaz, under section 342, Cr.P.C. and in answer to the question why this case against you and why the P.W.s have deposed against you, they replied that they had been involved in the case falsely and were innocent. The appellants namely Rashid son of Riaz and Saqib son of Riaz, opted not to get themselves examined under section 340(2) Cr.P.C. and did not adduce any evidence in their defence.

3. At the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellants as referred to above.

4. The contention of the learned counsel for the appellants precisely is that the whole case is fabricated and false and the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible, and relevant evidence. Learned counsel for the appellants further contended that the story of the prosecution mentioned in the statements of the witnesses, on the face of it, is highly improbable. Learned counsel for the appellants further contended that the statements of the prosecution witnesses were not worthy of any reliance. The learned counsel for the appellants also submitted that the recoveries of the motorcycle (P-9), the pistol (P-5) and two live bullets (P-6/1-2), the pistol (P-7) and two live bullets (P-8/1-2) were full of procedural defects, of no legal worth and value, and were the result of fake proceedings. The learned counsel for the appellants also argued that the appellants had been involved in the occurrence only on suspicion. The learned counsel for the appellants finally submitted that the prosecution had totally failed to prove the case against the accused beyond the shadow of a doubt.

5. On the other hand, the learned Deputy Prosecutor General along with the learned counsel for the complainant contended that the prosecution has proved its case beyond the shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the deceased died as a result of injuries suffered at the hands of the appellants namely Rashid son of Riaz and Saqib son of Riaz. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that the medical evidence also corroborated the statements of Sohail Aslam (PW-2) and Abdul Saeed (PW-3). The learned Deputy Prosecutor General along with the learned counsel for the complainant, further argued that the recoveries of the motorcycle (P-9), the pistol (P-5) and two live bullets (P-6/1-2), the pistol (P-7) and two live bullets (P-8/1-2) and the report of Punjab Forensic Science Agency, Lahore (Exh. P.T.) also corroborated the ocular account. The learned Deputy Prosecutor General along with the learned counsel for the complainant, further contended that there was no occasion for the prosecution witnesses, who were related to the deceased, to substitute the real offenders with the innocent in this case. Lastly, the learned Deputy Prosecutor General along with the learned counsel for the complainant prayed for the rejection of the appeal. The learned counsel for the complainant also argued that the Criminal Appeal No.839 of 2019, assailing the acquittal of Riaz son of Ghulam Sarwar and Mustansar son of Riaz by the learned trial court , also merited acceptance.

6. We have heard the learned counsel for the appellants, the learned counsel for the complainant, the learned Deputy Prosecutor General and perused the record with their able assistance .

7. The whole prosecution case revolves around the statements of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), the eye-witnesses of the occurrence. The relationship of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), with the deceased, is on record. Muhammad Aslam (deceased) was the father of Zohaivb Aslam (deceased) and also the father of Sohail Aslam (PW-2), and the paternal cousin(mamoozad) of the prosecution witness namely Abdul Saeed (PW-3) .The prosecution witness namely Sohail Aslam (PW-2) , during cross-examination, explained as under:-

"Aslam deceased was son of Ghaffoor. Mst. Zainab was firstly married to Ghaffor who was our grandfather and when after the death of said Ghaffor she married with Habib Ahmad. It is correct that Jhangir is son of Habib. It is correct that Ameer Bakhsh, Haqnawaz and Abdul Rehman are real brothers of Mst. Zainab Abdul Saeed PW is son of Ameer Bakhsh. Usman and Luqman PWs are the real sons of Haqnawaz Akram PW is son of Abdul Rehman." (emphasis supplied)

It is also an admitted aspect of the prosecution case that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), were not the residents of the place of occurrence or any place near the same. According to the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), the occurrence took place in a vacant plot of land situated in front of the house of Dr. Hafeezan situated at Shamas Colony Multan. The prosecution witness namely Sohail Aslam (PW-2) initially admitted that the place of occurrence was at a distance of 7 to 8 kilometres from his house, whereas the house of the prosecution witness namely Abdul Saeed (PW-3) was 3/4 houses away from the house of Muhammad Luqman (PW-4), which house of Muhammad Luqman (PW-4) itself was at a distance of one kilometer from the house of the prosecution witness namely Sohail Aslam (PW-2) . The prosecution witness namely Sohail Aslam (PW-2), during cross-examination, stated as under:-

"The distance between my house and the place of occurrence is about 07 to 08-kilometers.

.

Habib Ahmad, Jhangir, both the deceased as well as myself live in one house. It is a closed street and our house at the last of the street. The house of Farooq in Basti Langrial is at about distance of one kilometer from our house. The house of Luqman is at a distance of about half kilometer after passing through 02/03 streets. The house of Abdul Saeed is near the house of Luqman at a distance of 03 to 04 houses from each others." (emphasis supplied)

After admitting during cross-examination that his house was at a distance of as many as 7/8 kilometres from the place of occurrence, the prosecution witness namely Sohail Aslam (PW-2) changed his version and stated that his house was situated on the back side of the house of Dr. Hafeezan, the house in front of which the occurrence had taken place in a vacant plot of land. This claim of the prosecution witness namely Sohail Aslam (PW-2) that his house was on the back of the house of Dr. Hafeezan was badly exposed to be a false claim during the cross-examination of Irfan Hayat, draftsman (PW-1), who in his cross-examination , gave the complete details of the houses which were present near and around the place of occurrence and also admitted that the house of the prosecution witness namely Sohail Aslam (PW-2) was not near or around the place of occurrence. Irfan Hayat, draftsman (PW-1), during cross-examination , stated as under:-

"The place of occurrence in (sic) an open plot situated in front of house of Dr.Hafizan. House of the Dr.Hafizan is in the southern side of the street and alleged place of occurrence is on the northern side of the street. Width of the street is 18-20 feet but I have not shown the width of the street in the scaled site plan. In eastern side of alleged place of occurrence there was only one house of Bashir Anjum. According to scaled site plan there is no house in the western side of alleged place of occurrence. There is no house on the eastern side of house of Dr. Hafizan and a vacant plot is lying in western side of house of Dr. Hafizan.

.

It is correct that towards the east and west sides of the Dr. Hafizan house, all are vacant plots. There is a small street lies towards the south, which is about 8-10 feet wide but I have not mention (sic) its width in Exh.PA. I did not observe that there is second way of entrance in the street from minor Muzafarabad."

We ourselves have also perused the scaled site plan of the place of occurrence (Exh.PA) as prepared by Irfan Hayat, draftsman (PW-1) and the rough site plan of the place of occurrence (Exh.PP) as prepared by Attiya Naheed, Inspector (PW-13) and find that the house of the prosecution witness namely Sohail Aslam (PW-2) is not marked in the same. We have also noted with concern that the other prosecution witness namely Abdul Saeed (PW-3) also made a failing attempt to prove himself as a resident of an area around the place of occurrence, however, he too failed. The prosecution witness namely Sohail Aslam (PW-2) during cross-examination stated that the house of the prosecution witness namely Abdul Saeed (PW-3) was at quite a distance from the place of occurrence and during cross-examination stated as under:-

"The house of Dr. Hafizan is at a distance of half mile plus 02 Bighas from the house of Abdul Saeed and the house of Usman and Luqman."

Moreover, during cross-examination of the prosecution witness namely Abdul Saeed (PW-3) it was also brought on record that he changed his residence as stated by him in his statement recorded under section 161, of the Code of Criminal Procedure, 1898 (Exh.DA) and gave a different place of residence in his statement before the learned trial court . During cross-examination, the prosecution witness namely Abdul Saeed (PW-3) stated as under:-

"I am resident of Gulshan Iqbal Colony Qasim Baila, Multan. My statement was recorded under Sec. 161, Cr.P.C, by the I.O. wherein I stated my residential address as stated before this Hon'ble Court today. Gulshan Iqbal Colony is at a distance of half mile from the house of Aslam deceased.

.

I have not stated before the police that I am resident of Shams Colony. Confronted with Ex-DA where it is so recorded."

The above-referred portions of the cross-examination of the prosecution witnesses reflect that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), can be validly termed as "chance witnesses" and therefore were under a bounden duty to provide a convincing reason for their presence at the place of occurrence, at the time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same. We have noted with grave concern that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), failed miserably to provide any consistent evidence as to the reason for their arrival at the place of occurrence and their presence at the place of occurrence when the same was taking place. The prosecution witnesses, namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), though realizing that they were not the residents of the place of occurrence, did not even attempt to provide any reason for their arrival at the place of occurrence. The prosecution witness namely Sohail Aslam (PW-2) admitted during cross-examination that it was his routine to stay at home after arriving back to his house at about 5/6.00 p.m every day. During cross-examination, Sohail Aslam (PW-2) stated as under:-

"I used to go at the shop at about 09:00 a.m. My labouer (sic) time is limited upto 05/06:00 p.m. We received the amount of labour on weekly basis on every Thursday. After arriving at home I used to remain at house till the next morning. I am occasionally saying the prayers at shop in the mosque and at home in the mosque of Mohallah. "

Similarly, the prosecution witness namely Abdul Saeed (PW-3) also admitted that he was a Rikshaw driver and after returning to his house at about 2.30 p.m., he did not leave his house. Abdul Saeed (PW-3) during cross-examination stated as under:-

"I has engaged my Rickshaw only school time. I used to pick the students at 08:00 a.m. from their houses, dropped in the school and then took them back to their houses at about 2:30 p.m. Rest of the time I used to spend in my house. " (emphasis supplied)

The above replies of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) prove that admittedly the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) had no reason to be present at the place of occurrence and also they made no effort to explain as to why on the night of occurrence, at about 7.30 p.m., they were present in a vacant plot of land for no reason at all. We have thus reached at an irresistible conclusion that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), failed to prove any reason for leaving their houses on the day of occurrence and their arrival at the place of occurrence and the same remained unproved, entailing failure of the prosecution witnesses to prove the reason for their departure from their residences and their subsequent arrival at the place of occurrence. The prosecution was under a bounden duty to establish that the occurrence had indeed taken place when the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), had arrived at the place of occurrence and the failure to prove any reason for the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), to have proceeded from their houses to the place of occurrence and their presence at the place of occurrence has vitiated our trust in the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) . In this respect, reliance is placed on the case of "Muhammad Rafiq v. State" (2014 SCMR 1698), wherein the august Supreme Court of Pakistan rejected the claim of witnesses who lived one kilometre away from the place of occurrence, but on the day of occurrence stated to be present near the spot as they were working as labourers, inasmuch as they failed to give any detail of the projects they were working on. Reliance is also placed on the case of "Usman alias Kaloo v. State" (2017 SCMR 622), wherein the august Supreme Court of Pakistan held that the ocular account of the incident had been furnished by Zahoor Ahmad, Ghulam Farid and Manzoor Ahmed witnesses in the said case, who were all residents of some other houses and were not the inmates of the house wherein the occurrence had taken place and therefore the said eye-witnesses being, chance witnesses, were declared not worthy of reliance. Reliance is also placed on the case of "Nasrullah alias Nasro v. The State" (2017 SCMR 724) wherein the august Supreme Court of Pakistan observed as under:-

"In the case in hand the eye-witnesses produced by the prosecution lived eighty kilometers away from the scene of the crime, their stated reason for presence in the house of occurrence at the time of incident in issue had never been established through any independent evidence."

We have also noted that the names both the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) were neither mentioned in column No.4 nor at page 4 of the inquest report (Exh.PL/1) prepared with regard to Zohaib Aslam (deceased) and were also bot mentioned in column No.4 nor at page 4 of the inquest report (Exh.PN/1) prepared with regard to Muhammad Aslam (deceased) as being the witnesses who were present near the dead bodies at the time of preparation of the inquest reports (Exh.PL/1 and PN/1). This fact also evidences the absence of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) at the place of occurrence, at the time of occurrence.

1. Compounding further the matter is the fact that none of the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), in their statements recorded by the Investigating Officer of the case or in their statements recorded by the learned trial court, stated that there existed any light source which was lit at the place of occurrence, at the time of occurrence, which could have enabled the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) to have witnessed the occurrence and observe the details thereof. In their statements before the learned trial court, the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) stated that the occurrence had taken place at about 7.30 p.m., on 11.09.2016. Recognizing this error, the prosecution witness namely Sohail Aslam (PW-2) during cross-examination went on to claim that there was source of light available at the place of occurrence in shape of electric bulbs installed for the purpose of playing cricket, however, admitted that at the time of occurrence, no match was being played. It was further claimed by the prosecution witness namely Sohail Aslam (PW-2) that the electricity for lighting the bulbs was being provided by Bashir Anjum and residents of other houses near the place of occurrence. Sohail Aslam (PW-2), during cross-examination, claimed as under:-

"The flush (sic) lights were arranged in the said plot (alleged place of occurrence) and people are playing cricket in the said flesh lights. The lights were on but there was no match. When I and other witnesses reached at the spot the lights were on. We remained there for about one hour and during this period the lights remained on. The supply of electricity was from the MEPCO lines directly as well as from the houses of the inhabitants. Bashir Anjum, Butt and other houses provided the lights. The lights provided by the household of the street were installed on their outer door and not in the plot. "

The falsity of the above referred statement of Sohail Aslam (PW-2) is exposed when the scaled site plan of the place of occurrence (Exh.PA) as prepared by Irfan Hayat, draftsman (PW-1) and the rough site plan of the place of occurrence (Exh.PP) as prepared by Attiya Naheed, Inspector (PW-13) are perused. A perusal of the scaled site plan (Exh.PA) and the rough site plan (Exh.PP) of the place of occurrence, installation of no such electric bulbs at the place of occurrence, has been mentioned in the same, which source of light could have allowed the witnesses to make a positive identification of the assailants, despite the fact that as per prosecution's own claim, the occurrence had taken place during dark hours of the night. Furthermore, the Investigating Officer of the case, did not take into possession any such source of light which was available and lit at the place of occurrence , at the time of occurrence , which could have enabled the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) to observe the occurrence. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case , not only did not observe or took into possession any source of light which was available and lit at the place of occurrence , at the time of occurrence but also admitted that she had to arrange for light source at the time of her visit to the place of occurrence , on the night of occurrence , as none was available there. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case , during cross-examination , stated as under:-

"We obtained the head lights from the persons from the locality at place of occurrence and also taken along with our own search lights. My subordinates had already arranged the lights at the spot before my arrival there."

Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case , also stated that according to the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) told her that they were at a distance of as many as 24 feet from the place where the deceased had suffered the injuries. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case , during cross-examination , stated as under:-

"The witnesses who saw the occurrence were standing at a distance of about 24 feet from the place I recovered the blood stained earth of deceased persons."

There is no evidence available on record that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) possessed such faculties which could have enabled them to witness the occurrence from such a huge distance and that too in the dark. The failure of the prosecution to prove the presence of any source of light and also lit at the place of occurrence has condemnatory consequences for the prosecution.The prosecution witnesses failed to establish the fact of such availability of any light source and in the absence of their ability to do so, we cannot presume the existence of such a light source on our own. The absence of any light source has put the whole prosecution case in the murk. Reliance is placed on the case of "Gulfam and another v. The State" (2017 SCMR 1189) wherein the august Supreme Court of Pakistan observed as under:-

"The occurrence in this case had taken place at about 11.45 p.m. during the fateful night and the source of light at the spot had never been established by the prosecution. It had been presumed by the courts below that as the occurrence had taken place at a medical store, therefore, some electric light must be available at the spot. The courts below ought to have realized that presumptions have very little scope in a criminal case unless such presumption is allowed by the law to be raised"

Reliance is also placed on the case of "Hameed Gul v. Tahir and 2 others" (2006 SCMR 1628) wherein the august Supreme Court of Pakistan observed as under:-

"Next is the identification of the accused on the spot. The torch in the light of which the accused were identified, was produced before the Investigating Officer sixteen days after the occurrence. The one Haid Akbar who produced the same before he Investigating Officer was never produced at the trial and hence there is no satisfactory evidence that the torch produced in the given circumstances was the same, available at the time of occurrence. It was never found on the spot along with other recoveries though there was no occasion for the injured and the deceased to have carried it along."

Reliance is also placed on the case of "Basar v. Zulfiqar Ali and others" (2010 SCMR 1972) wherein the august Supreme Court of Pakistan observed as under:-

"7. It is also alleged by the prosecution that the witnesses had identified the culprits on torch lights. The complainant and P.Ws. did not produce the torches before the police immediately but the same were produced after 10 days of the incident.

8. Considering all aspects of the case, we are of the view that the prosecution has failed to prove the case against the respondents beyond any reasonable doubt."

Reliance is also placed on the case of "Azhar Mehmood and others v. The State" (2017 SCMR 135) wherein the august Supreme Court of Pakistan observed as under:-

"It has straightaway been noticed by us that the occurrence in this case had taken place after dark and in the FIR. no source of light at the spot had been mentioned by the complainant. Although in the site-plan of the place of occurrence availability of an electric bulb near the spot had been shown yet no such bulb had been secured by the investigating officer during the investigation of this case."

Reliance is also placed on the case of "Arshad Khan v. The State" (2017 SCMR 564) wherein the august Supreme Court of Pakistan observed as under:-

"The occurrence in this case had taken place before Fajar prayers at about 05.00 a.m. and according to the FIR. the occurrence in issue had been witnessed by the eye-witness in the light of an electric bulb but during the investigation no such electric bulb had been secured by the investigating officer."

1. We have also noted with disquiet that despite the fact that the occurrence took place at about 07.30 p.m. on 11th September, 2016, the post-mortem examinations of the dead bodies of the deceased were conducted after much delay at about 05.00 p.m. on 12th September, 2016. According to Dr. Muhammad Younis Ansari (PW-11), he on 12.09.2016 at about 05.00 p.m conducted the post-mortem examination of the dead body of Muhammad Aslam son of Abdul Ghafoor and the post-mortem examination of the dead body of Zohaib Aslam son of Muhammad Aslam (deceased) i.e., after about 16.5 hours of the occurrence. Dr. Muhammad Younis Ansari (PW-11) also noted developed rigor mortis at the time of conducting the post-mortem examinations of the dead bodies of both the deceased. Before proceeding any further, it would be advantageous to mention here that rigor mortis is a term which stands for the stiffness of voluntary and involuntary muscles in human body after death. It starts within 2 to 4 hours of death and fully develops in about 12-hours in temperate climate. Similarly, the reverse process with which rigor mortis disappears is called algor mortis. In support of duration required to develop rigor mortis, an extract from "The Principles And Practice of Medical Jurisprudence" by Alfred Swaine Taylor,MD , is being referred hereunder:-

"In sudden natural deaths occurring in a temperate climate during average seasonal conditions rigor mortis usually commences within 2 to 4 hours of death. It reaches a peak in about 12 hours and starts to disappear after another 12 hours. The cadaver becoming limp some 36 hours after death."

Likewise, Dr. S. Siddiq Husain in Chapter-V of his book "Forensic Medicine and Toxicology", observed that in temperate climate the rigor mortis completes in 8 to 12 hours. Similarly, William Carroll in his research article titled as "An Examination of Muscle Function", has declared a similar duration for rigor mortis to develop. In Chapter 15 'POST-MORTEM CHANGES AND TIME SINCE DEATH", from page 351 to page 352 of Rai Bahadur Jaising P. Modi's A Textbook of Medical Jurisprudence and Toxicology (26th Edition 2018) ,it has been discoursed as under:-

"Rigor mortis generally occurs, while the body is cooling. It is in no way connected with the nervous system, and it develops even in paralyzed limbs, provided the paralyzed muscle tissues have not suffered much in nutrition. It is retarded by perfusion with normal saline.

Owing to the setting in of rigor mortis all the muscles of the body become stiff, hard, opaque and contracted, but they do not alter the position of body or limb. A joint rendered stiff and rigid after death, if flexed forcibly by mechanical violence, will remain supple and flaccid, but will not return to its original position after the force is withdrawn; whereas a joint contracted during life in cases of hysteria or catalepsy will return to the same condition after the force is taken away.

Rigor mortis first appears in the involuntary muscles, and then in the voluntary. In the heart it appears, as a rule, within an hour after death, and may be mistaken for hypertrophy, and its relaxation or dilatation, atrophy or degeneration. The left chambers are affected more than the right. Post-mortem delivery may occur owing to contraction of the uterine muscular fibres.

In the voluntary muscles rigor mortis follows a definite course. It first occurs in the muscles of the eyelids, next in the muscles of the back of the neck and lower jaw, then in those of the front of the neck, face, chest and upper extremities, and lastly extends downwards to the muscles of the abdomen and lower extremities. Last to be affected are the small muscles of the fingers and toes. It passes off in the same sequence. However, according to H.A. Shapiro this progress of rigor mortis from proximal to distal areas is apparent only, it actually starts in all muscles simultaneously but one can distinguish the early developing and fully established stage, which gives an indication of the time factor.

Time of Onset.- This varies greatly in different cases, but the average period of its onset may be regarded as three to six hours after death in temperate climates, and it may take two to three hours to develop.

Duration-In temperate regions, rigor mortis usually lasts for two to three days. In northern India, the usual duration of rigor morts is 24 10 48 hours in winter and 18 to 36 hours in summer. According to the investigations of Mackenzie, in Calcutta, the average duration is nineteen hours and twelve minutes, the shortest period being three hours, and the longest forty hours." In Colombo, the average duration is 12 to 18 hours. When rigor mortis sets in early, it passes off quickly and vice versa. In general, rigor mortis sets in one to two hours after death, is well developed from head to foot in about twelve hours. Whether rigor is in the developing phase, established phase, or maintained phase is decided by associated findings like marbling, right lower abdominal discolouration, tense or taut state of the abdomen, disappearance of rigor on face and eye muscles. If on examination, the body is stiff, the head cannot be fixed towards the chest, then in all probability, the death might have occurred six to twelve hours or so more before the time of examination."

No explanation was offered to justify the said delay in conducting the post-mortem examinations of the dead bodies. Not only the post-mortem examinations of the dead bodies were delayed by as many as 16.5 hours, but the police papers were also handed over to Dr. Muhammad Younis Ansari (PW-11) at about 05.00 p.m. on 12th September, 2016. Dr. Muhammad Younis Ansari (PW-11) stated during cross-examination as under:-

"It is correct that dead bodies were received to me at 05:00 PM on 12.09.2016 along with the police papers."

There is no evidence on record that the Medical Officer was not available at the hospital which caused delay as, according to the prosecution witness namely Muhammad Akram (PW-6), it were the doctors who shifted the dead bodies from the casualty ward to the mortuary. Muhammad Akram (PW-6) during cross-examination admitted as under:-

"Doctors took the dead bodies from Ward to the mortuary."

Even the prosecution witness namely Muhammad Ayaz 68/C (PW-10) admitted during cross-examination as under:-

"I handed over the police papers to Doctor at about 05:00 PM on 12.09.2016." (emphasis supplied)

The inordinate and unexplained and substantial delay in the post-mortem examinations of the dead bodies and submission of the police papers to the Medical Officer clearly establishes that the witnesses claiming to have seen the occurrence or having seen the appellants escaping from the place of occurrence had not seen the occurrence and were not present at the time of occurrence and the delay in the post-mortem examinations was used to procure their attendance and formulate a dishonest account of the occurrence, after consultation and planning. It has been repeatedly held by the august Supreme Court of Pakistan that such delay in the post-mortem examination is reflective of the absence of witnesses and the sole purpose of causing such delay is to procure the presence of witnesses and to further advance a false narrative to involve any person.The august Supreme Court of Pakistan in the case of "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327) has held as under:

"The incident in the instant case took place at 2.00 a.m, FIR. was recorded at 4/5 a.m, Doctor Muhammad Pervaiz medically examined the injured person at 4.00 a.m. but conducted the post mortem examination of the deceased at 3.00 p.m i.e. after about ten hours, which fact clearly shows that the FIR. was not lodged at the given time".

The august Supreme Court of Pakistan in the case of "Mian SOHAIL AHMED and others v. The State and others" (2019 SCMR 956) has held as under:

"According to the Doctor (PW-10), who did the post-mortem examination, the dead-body of the deceased was brought to the mortuary at 11:15 a.m. on 01.9.2006 and the post-mortem examination took place at 12 noon after a delay of 15 hours. This delay in the post-mortem examination, when the occurrence was promptly reported at 8:45 p.m. and formal FIR. was registered at 9.00 p.m. on 31.8.2006 gives rise to an inference that the incident was not reported as stated by the prosecution"

The august Supreme Court of Pakistan in the case of "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068) has held as under:

"More importantly, the only person who can medically examine the dead body during the said police custody of the dead body is the medical officer, and that too, when the same is handed over to him by the police for its examination. For the purposes of the present case, it is crucial to note that, at the time of handing over a dead body by the police to the medical officer, all reports prepared by the Investigating Officer are also to be handed over in order to assist in the examination of the dead body."

10. Thus, once there is suspicion regarding the death of a person, the following essential steps follow: firstly, there is a complete chain of police custody of the dead body, right from the moment it is taken into custody until it is handed over to the relatives, or in case they are unknown, then till his burial; secondly, post mortem examination of a dead person cannot be carried out without the authorization of competent police officer or the magistrate; thirdly, post mortem of a deceased person can only be carried out by a notified government Medical Officer; and finally, at the time of handing over the dead body by the police to the Medical Officer, all reports prepared by the Investigating Officer are also to be handed over to the said medical officer to assist his examination of the dead body.

1. It is usually the delay in the preparation of these police reports, which are required to be handed over to the medical officer along with the dead body, that result in the consequential delay of the post mortem examination of the dead person. To repel any adverse inference for such a delay, the prosecution has to provide justifiable reasons therefor, which in the present case is strikingly wanting."

2. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon that the recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib, the recoveries of the motorcycle (P-9), the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid and the report of Punjab Forensic Science Agency, Lahore (Exh. P.T.) and have submitted that the said recoveries from the appellants offered sufficient corroboration of the ocular account of the occurrence as furnished by prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3). The recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib and the recoveries of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid cannot be relied upon as the Investigating Officer of the case did not join any witness of the locality during the said recoveries, which action of her was in clear violation of the provisions of the section 103 Code of Criminal Procedure, 1898 and therefore the evidence of the recoveries cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The provisions of section 103 Code of Criminal Procedure, 1898, unfortunately, are honoured more in disuse than compliance. To appreciate it better, this section is being reproduced:-

"103.--(1) Before making a search, under this chapter, the officer or other person about to make it shall call upon two or more respectable inhabitants of the locality in which the place to be searched is situate to attend and witness the search and may issue an order in writing to them or any of them so to do."

The prosecution witness namely Muhammad Ayyaz 686/C (PW-10) during cross examination, admitted as under:-

"I.O did not direct any police official to join any private respectable person of the locality in recovery proceedings."

Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross-examination, stated as under:-

"On all the three occasions of the recovery some inhabitant were there but I don't know the number. I have not associated any respectable from the volunteered that there was one house of Muhammad Ramzan who refused to join. I have not mentioned this fact in my daily diary."

Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case , also admitted that though the recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib and the recoveries of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid were made from the same vicinity, however, on different days. It was also admitted that the rooms from where the alleged recoveries were made were all open and were not locked. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross-examination stated as under:-

"It is correct that I prepared recovery memos. of recoveries of pistol motorcycle and other pistol is of 05.10.2016, 07.10.2016 and 10.10.2016.

"All the three places of recoveries with little distance from each other are situated in the same vicinity. All these places are not in the garden. The garden is on other side. In fact the house from where the recoveries were effected is on a side of the garden. I don't know the number of persons were residing in the house at that time. The house was unlocked. The room from where the alleged recoveries were effected too unlocked. Volunteered that the inhabitants of house were residing at that time." (emphasis supplied)

It was not explained by Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case , that when she had visited the same place on 05.10.2016 for the purpose of the recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib then why she did not observe the presence of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2), which articles were shown to had been recovered on 07.10.2016 and 10.10.2016, respectively. Moreover, the exclusive possession of the appellants over the recovered articles could also not be proved. Therefore the evidence of the recovery of the pistol (P-5) and two live bullets (P-6/1-2) from the appellant namely Saqib and the recoveries of the motorcycle (P-9) and the pistol (P-7) and two live bullets (P-8/1-2) from the appellant namely Rashid cannot be used as incriminating evidence against the appellants, being evidence which was obtained through illegal means and hence hit by the exclusionary rule of evidence. The august Supreme Court of Pakistan in the case of Muhammad Ismail and others v. The State (2017 SCMR 898) at page 901 has held as under:-

"For the above mentioned recovery of weapons the prosecution had failed to associate any independent witness of the locality and, thus, the mandatory provisions of section 103, Cr.P.C. had flagrantly been violated in that regard."

Moreover, Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, arrested the appellants namely Rashid and Saqib on 26.09.2016; however the empty shells of the bullets taken into possession from the place of occurrence were sent to Punjab Forensic Science Agency, Lahore on 06.10.2016 when there was no reason for keeping the empty shells, which were taken into possession on 11.09.2016, at the Police Station and not sending them to the office of Punjab Forensic Science Agency, Lahore till after the appellants had been arrested. In this manner the said report of Punjab Forensic Science Agency, Lahore. (Exh. P.T) has no evidentiary value as the possibility of fabrication is apparent. Reliance is placed on the case of Muhammad Amin v. The State and another (2019 SCMR 2057) wherein the august Supreme Court of Pakistan has held as under:-

"Interestingly, two empty cartridges (P-4/1-2) were secured from the place of occurrence by the Investigating Officer Akhtar Ali, SI (PW12) on the night of 11.10.2012, but the same were sent to the office of Punjab Forensic Science Agency on 23.01.2013 i.e. after arrest of the appellant in this case. In these circumstances, the positive report of F.S.L. is of no avail to the prosecution and is inconsequential."

With regard to the recovery of motorcycle (P-9) from the appellant namely Rashid, it is observed that the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3) did not mention either the registration number or even the make or the colour of the motorcycle which was allegedly used by the appellants to arrive at the place of occurrence , therefore, the recovery of the motorcycle (P-9) cannot be used as proof of any fact in issue or any relevant fact.

1. The learned Deputy Prosecutor General and the learned counsel for the complainant have also relied upon the evidence of motive and submitted that it corroborated the ocular account. The motive of the occurrence as stated by the prosecution witnesses namely Sohail Aslam (PW-2) and Abdul Saeed (PW-3), was that before the occurrence, Riaz and Mustansar (both since acquitted), the co-accused of the appellants, instigated the appellants to murder the deceased as a revenge for not returning two women namely Naziran (also referred to as Najma) and Rimsha. We have scrutinized the statements of the prosecution witnesses and find that the motive as alleged could not be proved. Both the women namely Naziran (also referred to as Najma) and Rimsha, neither joined the investigation of the case nor the prosecution produced them before the learned trial court in support of the alleged motive. Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, during cross-examination, admitted as under:-

"I had tried my best to join Mst.Najma and Mst.Rimsha in investigation but both could not be located despite best efforts"

The prosecution witnesses did not even make an effort to provide any details regarding the dispute over the women namely Naziran (also referred to as Najma) and Rimsha. It was not even brought on record that when the said women namely Naziran (also referred to as Najma) and Rimsha were abducted , if indeed they were, and with whom they were residing at the time of occurrence and who had refused to return them. The failure of Attiya Naheed, Inspector (PW-13), the Investigating Officer of the case, to join Naziran (also referred to as Najma) and Rimsha in the investigation of the case reflects poorly on the prosecution case. It is not even proved whether any women namely Naziran (also referred to as Najma) and Rimsha even existed regarding whom the motive of the occurrence was alleged. The prosecution witnesses failed to provide evidence enabling us to determine the truthfulness of the motive alleged and the fact that the said motive was so compelling that it could have led the appellants namely Rashid and Saqib to have committed the Qatl-i-Amd of the deceased namely Muhammad Aslam son of Abdul Ghafoor and Zohaib Aslam son of Muhammad Aslam. There is an evocative muteness in the prosecution case with regard to the minutiae of the motive alleged. No independent witness was produced by the prosecution to prove the motive as alleged. The august Supreme Court of Pakistan has held in the case of Muhammad Javed v. The State (2016 SCMR 2021) as under:

"The said related and chance witnesses had failed to receive any independent corroboration inasmuch as no independent proof of the motive set up by the prosecution had been brought on the record of the case."

Even otherwise it is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable, then motive and recovery have no evidentiary value and lost their significance.

1. The only other piece of evidence left to be considered by us is the medical evidence with regard to the injuries observed on the dead bodies of the deceased by Dr. Muhammad Younis Ansari (PW-11) but the same is of no assistance in this case as medical evidence by its nature and character, cannot recognize a culprit in case of an unobserved incidence. As all the other pieces of evidence relied upon by the prosecution, in this case, have been disbelieved and discarded by us, therefore, the appellants' conviction cannot be upheld on the basis of medical evidence alone. The august Supreme Court of Pakistan in its binding judgment titled "Hashim Qasim and another v. The State" (2017 SCMR 986) has enunciated the following principle of law:

"The medical evidence is only confirmatory or of supporting nature and is never held to be corroboratory evidence, to identify the culprit."

The august Supreme Court of Pakistan, in its binding judgment titled "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600) has enunciated the following principle of law:

"31. The prosecution has attempted to complete the chain of circumstantial evidence by medical evidence relating to the post mortem examinations of the deceased persons. This evidence proves only the factum that death of the deceased persons was caused by cutting their throats through some sharp edge weapon; it does in no way indicate who had cut their throats and with what particular weapon. Medical evidence 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 person with the commission of offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence with regard to certain facts including seat of the injury, nature of the injury, cause of the death, kind of the weapon used in the occurrence, duration between the injuries and the death, and presence of an injured witness or the injured accused at the place of occurrence, but it does not connect the accused with the commission of the offence. It cannot constitute corroboration for proving involvement of the accused person in the commission of offence, as it does not establish the identity of the accused person.

32 Therefore, the medical evidence is of little help to the prosecution for bringing home the guilt to the petitioners."

1. Considering all the above circumstances, we entertain serious doubt in our minds regarding the involvement of appellants namely Rashid son of Riaz and Saqib son of Riaz in the present case. It is a settled principle of law that for giving the benefit of the doubt it is not necessary that there should be so many circumstances rather if only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right. The august Supreme Court of Pakistan in the case of "Muhammad Mansha v. The State" (2018 SCMR 772) has enunciated the following principle:

"Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as a matter of right. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". Reliance in this behalf can be made upon the cases of Tariq Pervez v. The State (1995 SCMR 1345), Ghulam Qadir and 2 others v. The State (2008 SCMR 1221), Muhammad Akram v.The State (2009 SCMR 230) and Muhammad Zaman v.The State (2014 SCMR 749)."

Reliance is also placed on the judgment of the august Supreme Court of Pakistan Najaf Ali Shah v. The State (2021 SCMR 736) in which it has been observed as infra:

"9. Mere heinousness of the offence if not proved to the hilt is not a ground to avail the majesty of the court to do complete justice. This is an established principle of law and equity that it is better that 100 guilty persons should let off but one innocent person should not suffer. As the preeminent English jurist William Blackstone wrote, "Better that ten guilty persons escape, than that one innocent suffer." Benjamin Franklin, who was one of the leading figures of early American history, went further arguing "it is better a hundred guilty persons should escape than one innocent person should suffer." All the contradictions noted by the learned High Court are sufficient to cast a shadow of doubt on the prosecution's case, which entitles the petitioner to the right of benefit of the doubt. It is a well settled principle of law that for the accused to be afforded this right of the benefit of the doubt it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must got to the petitioner. This Court in the case of Mst. Asia Bibi v. The State (PLD 2019 SC 64) while relying on the earlier judgments of this Court has categorically held that "if a single circumstance creates reasonable doubt in a prudent mind about the apprehension of guilt of an accused, then he/she shall be entitled to such benefit not as a matter of grace and concession, but as of right. Reference in this regard may be made to the cases of Tariq Pervaiz v. The State (1998 SCMR 1345) and Ayub Masih v. The State (PLD 2002 SC 1048)." The same view was reiterated in Abdul Jabbar v. State (2010 SCMR 129) when this court observed that once a single loophole is observed in a case presented by the prosecution, such as conflict in the ocular account and medical evidence or presence of eye-witnesses being doubtful, the benefit of such loophole/lacuna in the prosecution's case automatically goes in favour of an accused."

1. For what has been discussed above Criminal Appeal No.725 of 2019 lodged by the appellants namely Rashid son of Riaz and Saqib son of Riaz is allowed and the conviction and sentence of the appellants awarded by the learned trial court through the impugned judgment dated 19.07.2019 are hereby set-aside. Rashid son of Riaz and Saqib son of Riaz (appellants) arre ordered to be acquitted by extending them the benefit of the doubt. Rashid son of Riaz and Saqib son of Riaz (appellants) are in custody and are directed to be released forthwith if not required in any other case.

2. The complainant of the case namely Sohail Aslam (PW-2) filed Criminal Appeal No.839 of 2019 against the acquittal of the accused namely Riaz son of Ghulam Sarwar and Mustansar son of Riaz. We have observed that the learned trial court rightly acquitted the said accused. Riaz son of Ghulam Sarwar and Mustansar son of Riaz, both since acquitted, were alleged to had instigated their co-accused to murder the deceased for the reason that two women namely Naziran (also referred to as Najma) and Rimsha had been abducted, however, they were not being returned, but as discussed above, the very fact that two women namely Naziran (also referred to as Najma) and Rimsha had been abducted could not be proved. When the reason for Riaz son of Ghulam Sarwar and Mustansar son of Riaz, both since acquitted, to have instigated their co-accused could not be proved then their prompting could also be not. It is important to note that according to the established principle of the criminal administration of justice once an acquittal is recorded in favour of accused facing criminal charge he enjoys double presumption of innocence, therefore, the courts competent to interfere in the acquittal order should be slow in converting the same into conviction, unless and until the said order is patently illegal, shocking, based on misreading and non-reading of the record or perverse. The said principle has been enunciated by the august Supreme Court of Pakistan in the judgment reported as Muhammad Inayat v. The State (1998 SCMR 1854) wherein it has been held as under:

"The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same, and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."

2024 Y L R 1731

[Lahore]

Before Shahid Bilal Hassan, J

Mst. Kalsoom Bibi and another---Appellants

Versus

Saif Ullah---Respondent

R.S.A. No. 15745 of 2021, heard on 24th January, 2023.

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

----S. 12---Suit for specific performance of agreement to sell---Transactions relating to old , illiterate, pardanasheen (parda observing ) ladies ---Conditions and parameters , non-observance of---It was claim of the appellants/defendants that they were illiterate, rustic and village household ladies--- In respect of a transaction germane to property with a pardanasheen, village household and rustic ladies, certain parameters and conditions like such ladies be cognizant/aware of the transaction, independent advice, witnesses being their close relatives, receiving of consideration etc. are to be fulfilled in a transparent manner; and old and illiterate ladies are entitled to the same protection which is available to the Parda observing ladies under the law---However, in the present case, none of the said parameters had been met with and no such evidence, showing that the appellants (defendants /ladies) had an independent advice and were fully aware and cognizant of the nature of the transaction, was brought on record by the respondent/plaintiff ---Impugned judgments and decrees, passed by both the Courts below, being result of misreading and non-reading of evidence on record were set-aside and, in consequent thereof the suit instituted by the respondent stood dismissed---Appeal was allowed accordingly .

Phul Peer Shah v. Hafeez Fatima 2016 SCMR 1225; Muhammad Afzal v. Muhammad Zaman PLD 2012 Lahore 125; Ghulam Muhammad v. Zahoran Bibi and others 2021 SCMR 19 and Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another PLD 2022 SC 99 ref.

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

----S. 12---Suit for specific performance---Agreement to sell, denial of---Old, illiterate and pardanasheen (Parda observing ) lady , matter of---Evidence as a whole has to be read and considered---One of the appellants (defendants/ladies) while appearing in the witness box consistently denied the alleged fact of entering into purported agreement to sell by them (appellants) with the respondent /plaintiff as well as execution of (exhibited) receipt after receiving of earnest money and in a categorical manner stated that the (exhibited) notice was forged and fictitious---Even said appellant did not show her reluctance for comparison of thumb impressions and signatures, rather she had no objection on sending her signatures and thumb impressions for comparison, however, the respondent, after such a categorical no objection, did not move any application for sending the signatures and thumb impressions of the appellants to the Finger Print Bureau for comparison purposes, which omission went against the respondent and had the same been sent, adverse report would have been received, which would have been against the respondent/plaintiff ---Both the Courts below had used pick and choose method while recording its findings especially referring to half suggestion, which otherwise she (appellant/defendant) actually denied e.g. she not only categorically denied backing of the agreement but voluntarily stated that no agreement was executed by her---Impugned judgments and decrees passed by both the Courts below being result of misreading and non-reading of evidence on record, was set-aside and in consequent thereof the suit instituted by the respondent stood dismissed---Appeal was allowed accordingly.

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

----S. 12---Suit for specific performance---Agreement to sell denied by the defendants/ladies ---Negation of averments in the plaint---Effect---Payment of earnest money of Rs.500,000/- alleged by the respondent/ plaintiff had not been proved , because the appellant /defendant as witness categorically denied the suggestion(s) put by the respondent/plaintiff---Appellant not only denied suggestion that she received Rs.500,000/- as earnest money but also denied (suggestion) that after that (alleged receiving of Rs. 5000,000/) she received Rs.1,000,000/----Respondent /plaintiff himself improved, rather negated the averments made in the plaint in said regard, because the payment of Rs.1,000,000/- subsequently was not pleaded by the respondent---Impugned judgments and decrees, being result of misreading and non-reading of evidence on record, were set-aside and in consequent thereof the suit instituted by the respondent stood dismissed---Appeal was allowed accordingly.

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

----S.12---Suit for specific performance---Agreement to sell---Decree of specific performance---Discretionary relief---Scope---Suit can be refused to be decreed even if the agreement has been proved as it is a discretionary relief and said discretion can be exercised on equitable terms.

1994 SCMR 111 ref.

Sukrat Mir Basit for Appellant.

Chaudhry Zameer Bilal for respondent.

Date of hearing: 24th January, 2023.

Judgment

Shahid Bilal Hassan, J.--- Succinctly, the respondent, on 19.06.2010, instituted a suit for specific performance of agreement to sell dated 19.04.2010 regarding the suit property measuring 178-Kanals 18-marlas situated in Mauza Mehram Sial, Tehsil and District Jhang, against the present appellants, which was duly contested by them while submitting written statement. Out of the divergent pleadings of the parties, the learned trial Court framed issues and evidence of the parties in pro and contra was recorded. The learned trial Court decreed the suit in favour of the respondent/plaintiff vide impugned judgment and decree dated 27.01.2016. The appellants being aggrieved preferred an appeal bearing R.F.A.No.287 of 2016 before this Court; however, on 30.06.2016 pursuant to promulgation of Punjab Civil Courts Ordinance, 2016 the above noted RFA was forwarded to the District Court Jhang for adjudication which was dismissed vide impugned judgment and decree dated 04.02.2021 by the learned appellate Court; hence, the instant regular second appeal.

1. Heard.

2. It is claim of the appellants that they are illiterate, rustic and village household ladies. In respect of a transaction germane to property with a pardanasheen, village household and rustic ladies, the Apex Court of the country in a judgment reported as Phul Peer Shah v. Hafeez Fatima (2016 SCMR 1225) has given the parameters and conditions to be fulfilled in a transparent manner and held that:-

'In case of a (property) transaction with an old, illiterate rustic village Pardanasheen in lady the following mandatory conditions should be complied with and fulfilled in a transparent manner and through evidence of a high degree so as to prove the transaction as legitimate and dispel all suspicions and doubts surrounding it:-

i. That the lady was fully cognizant and was aware of the nature of the transaction and its probable consequences;

ii. That she had independent advice from a reliable source/person of trust to fully understand the nature of the transaction;

iii. That witnesses to the transaction were such, who were close relatives or fully acquainted with the lady and had no conflict of interest with her;

iv. That the sale consideration was duly paid and received by the lady in the same manner; and

v. That the very nature of transaction was explained to her in the language she understood fully and she was apprised of the contents of the deed/ receipt, as the case may be.'

Moreover, this Court has held that old and illiterate ladies are entitled to the same protection which is available to the Parda observing lady under the law, reliance is placed on Muhammad Afzal v. Muhammad Zaman (PLD 2012 Lahore 125). Furthermore, in Ghulam Muhammad v. Zahoran Bibi and others (2021 SCMR 19), the Apex Court of country has held:-

'It is settled law that the beneficiary of any transaction involving parda nasheen and illiterate women has to prove that it was executed with free consent and will of the lady, she was aware of the meaning, scope and implications of the document that she was executing. She was made to understand the implications and consequences of the same and had independent and objective advice either of a lawyer or a male member of her immediate family available to her. '

In a recent judgment reported as Muhammad Naeem Khan and another v. Muqadas Khan (decd) through L.Rs. and another (PLD 2022 Supreme Court 99), the Apex Court of the country has invariably held:-

'If any such plea is taken then it is a time-honored parameter that in case of a document executed by a pardanashin lady, the burden of proof is on the party who depends on such a deed to persuade and convince that Court that it has been rad over and explicated to her and she had not only understood it but also received independent and disinterested advice in the matter. The aforesaid parameter and benchmark is equally applicable to an illiterate and ignorant woman who may not be a pardanashin lady. If authenticity or trueness of a transaction entered into by a pardanashin lady is disputed or claimed to have been secured on the basis of fraud or misrepresentation, then onus would lie on the beneficiary of the transaction to prove his good faith and the court has to consider whether it' was done with freewill or under duress and has to assess further for an affirmative proof whether the said document was read over to the pardanashin or illiterate lady in her native language for her proper understanding.'

However, in the present case, none of the above said parameters have been met with and no such evidence, showing that the appellants were having an independent advice and were fully aware and cognizant of the nature of the transaction, was brought on record by the respondent. Moreover, evidence as a whole has to be read and considered. The appellant No.2 while appearing in the witness box as D.W.1 consistently denied the alleged fact of entering into purported agreement to sell Ex.P 1 by the appellants with the respondent as well as execution of receipt Ex.P2 after receipt of earnest money and in a categorical manner stated that the notice Ex.P4 is forged and fictitious. Even she did not show her reluctance when a question was put upon her that if her thumb impressions and signatures are set for comparison, rather she had no objection on sending her signatures and thumb impressions for comparison. However, the respondent, after such a categorical no objection, did not move any application for sending the signatures and thumb impressions of the appellants to the finger print bureau for comparison purposes, which omission goes against the respondent that had the same been sent, adverse report would have been received, which would have been against the present respondent. Apart from this, the learned Courts below have used pick and choose method while recording its findings especially referring to half suggestion, which otherwise was:-

In addition to the above, the payment of alleged earnest money of Rs.500,000/- has also not been proved because the respondent while putting suggestion, which has been denied by the D.W.1 as such that 'It is incorrect that I received Rs.500,000/- as earnest money. It is incorrect that after that I received Rs. 1,000,000/-.' himself improved rather negated the averments made in the plaint in this regard, because the payment of Rs.1,000,000/- subsequently was not pleaded by the respondent.

2024 Y L R 1745

[Lahore]

Before Aalia Neelum and, Asjad Javaid Ghural, JJ

Muhammad Anwar and others---Appellants

Versus

The State and others---Respondents

Criminal Appeals Nos. 204964, 204976, 204979, 204982, 204968, 204969, 204973, Criminal Revision No. 213819 and Murder Reference No. 189 of 2018, heard on 1st June, 2023.

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Lodging of FIR with promptitude---Accused were charged for making firing upon the complainant party, due to which five persons were killed, and two were injured---Incident took place on 23.06.2010 at about 04.15 pm, which was reported to the police promptly on the same day at about 05.35 pm within one hour and twenty two minutes and formal FIR was chalked out at 05.55 pm---Fact remained that the inter-se distance between the place of occurrence and the police station was seven kilometers---First Information Report contained names of the accused persons with their specific role of making fire shots at the deceased as well as the injured witnesses---Such fact not only confirmed presence of the eyewitnesses at the spot but also excluded every hypothesis of deliberation, consultation and fabrication prior to the registration of the case and also ruled out the possibility of mistaken identification or substitution---Appeal against conviction was dismissed accordingly.

Noor Sultan and others v. The State 2021 SCMR 176; Shaheen Ijaz alias Babu v. The State 2021 SCMR 500 and Muhammad Waris v. The State 2008 SCMR 784 rel.

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Motive proved---Accused were charged for making firing upon the complainant party, due to which five persons were killed, and two were injured---Admittedly, there was previous murder enmity between the parties and prior to the incident, a case FIR, in respect of offence under Ss. 302, 148 & 149, P.P.C, was lodged by one of the accused persons qua the murder of his brother against deceased and injured persons---Admittedly said case was pending adjudication before the Trial Court and on the day of occurrence, the same was fixed for hearing---Complainant during his cross-examination stated that they were on visiting terms with each other and in the said period there was no quarrel/difference inter-se---Defence alleged that in the light of said admission, it could not be said that present incident was result of previous FIR---Had relationship between the parties been of such a pleasant nature, the parties would have entered into compromise in the previous murder case---Developing cordial relations with the accused persons may have been an effort of the complainant party in order to seek pardon from earlier case but it remained futile---In the said case, defence side booked five accused persons, out of which four were declared innocent at the stage of investigation and they were on bail, whereas, injured was behind the bars, who was granted post arrest bail by the High Court---Present occurrence took place just twenty days after release of said injured from the jail---Release of injured added fuel to the fire and after such development, the accused persons organized a plan and took revenge from the complainant party---No doubt previous enmity, being the motive, was always considered as a double edged weapon but from the evidence available on record it had been established that it was the sole reason of present unfortunate incident---Prosecution had successfully proved motive part of the occurrence, in circumstances---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for making firing upon the complainant party, due to which five persons were killed and two were injured---Complainant furnished the ocular account before the trial Court and reiterated the contents of the crime report---Injured witnesses deposed exactly in line and supplemented the complainant on each and every minute detail of the incident of murder in issue---In the course of cross-examination, all the witnesses of ocular account remained firm and consistent on all material aspects of the incident qua the date, time, place, mode and manner of the occurrence, names of the accused persons, weapons of offence, role played by each and every accused for committing murder of the deceased and causing injuries to the injured witnesses---Defence could not extract any favourable material from their mouths---Locale, number, nature of injures, weapons of offence used for causing theses injures and the duration between injures and death as well as death and postmortem examination were exactly in line with the ocular account and as such the medical evidence lent full support to the prosecution version---Appeal against conviction was dismissed accordingly.

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Presence of the complainant and witnesses at the time and place of occurrence proved---Accused were charged for making firing upon the complainant party, due to which five persons were killed and two were injured---During cross-examination, complainant explained that she along with her husband intended to pay homage to Data Darbar at Lahore and as such they accompanied the deceased, who had to attend the Court proceedings there---This was a very valid reason and could not be sighted with doubt---Even otherwise, on such point the defence had questioned the complainant at considerable length but she remained firm and consistent and even gave minute details of description of floor, mosque, path and even colour and height of shrine and the defence failed to shake her testimony on that point---So far as non-sustaining of injuries by the complainant lady while all other members present in the vehicle had sustained injuries was concerned, initially, brother of one of the accused persons was murdered and four of the deceased persons as well as one injured were booked in the said case---Deceased persons were declared innocent by the police, whereas injured was released on post arrest bail after more than three years of his arrest---After the release of injured, the accused persons hatched a plan of revenge and tried to commit murder of entire male members of their opponents---Leaving the complainant scratch-less appeared to be a calculated move on part of the accused persons to make her an example and leave her alone to feel the pain and misery of departure of her dear ones---Complainant faced the test of lengthy cross-examination from time to time spreading the period of over three years with full confidence and described the gruesome incident in minute detail, which established her presence at the venue of occurrence at the relevant time without any doubt---Two persons of the complainant party sustained injuries during the occurrence and as such their presence at the venue of occurrence at the relevant time could not be questioned in any manner---Injured appeared in the dock before the Trial Court and categorically raised accusing finger towards none else but the accused persons being responsible for the murder of five innocent persons and causing fire arm injuries to the injured witnesses---Both these witnesses faced the test of lengthy cross-examination with full confidence, which could not be crushed by the defence in any manner---Statement of both the said witnesses was sufficient to believe the prosecution version and bring home guilt against the accused persons beyond shadow of even slightest doubt---Appeal against conviction was dismissed accordingly.

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

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Related and interested witnesses, evidence of---Natural witnesses---Accused were charged for making firing upon the complainant party, due to which five persons were killed and two were injured---Though all the witnesses of ocular account were closely related to the deceased inasmuch as the complainant was their real sister/aunt, real brother/uncle and brother-in-law/husband of complainant yet their testimony could not be discarded merely on that score by treating them interested witnesses---Both the injured witnesses sustained injuries during the occurrence and the complainant had also established that she was accompanying the deceased at the relevant time, as such they were quite natural witnesses, who could conveniently describe the incident in the manner as it happened as compared to any other independent witness---No earthly reason was found for the eye-witnesses to falsely implicate the accused persons in substitution of the real culprits---Substitution of the real culprits with an innocent one, in particular, where the eye-witnesses had lost their close kith and kin, was a rare phenomenon---Appeal against conviction was dismissed accordingly.

(f) Criminal trial---

----Related and interested witnesses, evidence of---Scope---Mere relationship of the eye-witnesses with the deceased is not sufficient to discard their evidence, if the same is otherwise found confidence inspiring and trustworthy.

Ghulam Murtaza v. The State 2021 SCMR 149 rel

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Withholding material witnesses---Not consequential---Accused were charged for making firing upon the complainant party, due to which five persons were killed, and two were injured---Defence objected that two independent witnesses mentioned in the FIR were given up by the prosecution so the inference could be drawn that they were not ready to support the prosecution version---Prosecution was not bound to produce all the witnesses---If the accused persons were sure that these witnesses were not ready to support the prosecution witnesses, they had ample opportunity rather were at liberty, to examine them in their defence or even submit application before the trial Court to summon them as Court witnesses but merely on that basis other overwhelming and confidence inspiring prosecution evidence could not be discarded---Appeal against conviction was dismissed accordingly.

Saeed Akhtar and others v. The State 2000 SCMR 383 rel.

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief and causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of two days in recording statements of injured witnesses---Not consequential---Accused were charged for making firing upon the complainant party, due to which five persons were killed and two were injured---All the male members of the complainant parts had either lost their lives or were admitted in the hospital being in injured condition and, thus, it was not expected for a sole female household lady to herself make arrangements for recording the statement of the injured witnesses---Even otherwise, neither the Medical Officer, who medically examined the injured witnesses, observed any kind of fabrication or friendly-hand injury nor the accused persons made any effort to challenge their Medico-Legal Reports at any forum thus it could be safely concluded that both the injured witnesses sustained injuries during the occurrence---If there was any lapse due to an act of the Investigating Officer for recording their statements under S.161, Cr.P.C., belatedly, its benefit could not be extended to the defence in any eventuality---Appeal against conviction was dismissed accordingly.

Sheraz Asghar v. The State 1995 SCMR 1365 rel.

(i) Criminal trial---

----Minor discrepancies and contradictions---Scope---Discrepancies of minor character which nether go to the root of the prosecution versionnor shake its salient features are of no significance.

Ansar and others v. The State and others 2023 SCMR 929 rel.

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of about 17 to 24 hours in conducting postmortem examination on the dead bodies of the deceased---Not consequential---Accused were charged for making firing upon the complainant party, due to which five persons were killed and two were injured---Though there was delay ranging from 17 to 24 hours in conductng post mortem examination on the dead bodies of the deceased yet the same was not fatal for multiple one reasons---Firstly, in this unfortunate incident five persons lost their lives, two sustained injuries and only a female remained safe---Investigating Officer, who reached at the spot within 20/25 minutes after the occurrence stated that dead bodies of two deceased were lying at the spot, whereas, rest of five injured persons had been shifted to the hospital and after fulfillment of codal formalities, he transmitted those two dead bodies to the mortuary without wastage of time---In that way, it could safely be concluded that the deceased, either in injured condition or dead, were shifted to the hospital soon after the occurrence and there was no deliberate delay in dispatching them to the mortuary/hospital and if afterwards the autopsy was held belatedly, defence could not claim its premium---Secondly, one of the deceased, while in injured condition, was shifted to hospital where he remained admitted for five days and breathed his last on 28.06.2010, where after, his dead body was shifted for post mortem examination on the same day at 7.00 p.m., but even in that case, his autopsy was held with a delay of seventeen hours---It was not understandable what kind of benefit the prosecution could achieve in delaying the post mortem examination of said deceased, as all the codal formalities including lodging of crime report, recording of statements of prosecution witnesses under S.161, Cr.P.C., had already been completed---Thus it could safely be concluded that it was pattern of the hospital to conduct autopsy after a certain period either due to some administrative issue or non-availability of doctor, therefore, its benefit could not be extended to the accused persons---Appeal against conviction was dismissed accordingly.

Muhammad Asif v. Mehboob Alam 2020 SCMR 837 and Ghulam Rasool v. The State 2010 SCMR 1579 rel.

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

----Ss. 302(b), 324, 427, 109, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief and thereby causing damage to the amount of fifty rupees, abetment, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Crime weapons recovered at the instance of two accused---Reliance---Accused were charged for making firing upon the complainant party, due to which five persons were killed and two were injured---Defence had laid much emphasis that two Kalashnikovs recovered at the instance of two accused persons respectively did not match with the crime empties secured from the place of occurrence; that nothing was recovered from the remaining convicts/accused persons, which fact alone was sufficient to take the same as a mitigating factor for awarding lessor punishment---Validity---As far as effect of inconsequential weapons of offence shown to have been recovered at the instance of accused persons was concerned, one accused was arrested after eighteen months, whereas, the other was after 36 months of the occurrence and in the intervening period, the weapons of offence used during the occurrence were not supposed to have been preserved---There was every possibility that accused had handed over different weapon of offence, with the intention to claim benefit of them being inconsequential at a subsequent stage and as such, it could not be taken as a mitigating factor for awarding lesser punishment---Similarly, rest of convicts also remained fugitives from law for a considerable period ranging from 09 months to 3-years, therefore, non-recovery of weapons of offence from them after such a long period was immaterial---However, when the ocular account was found to be confidence inspiring and trustworthy, mere fact that the recovery was inconsequential by itself could not be a ground for lesser punishment---Appeal against conviction was dismissed accordingly.

Nasir Ahmed v. The State 2023 SCMR 478 rel.

(l) Criminal trial---

----Absconsion---Effect---No doubt absconson is not a conclusive proof of guilt of an accused but at the same time it can not be overlooked when the evidence available on record suggests that the accused has deliberately and intentionally avoided to face the trial due to his guilty conscience.

Ch. Muhammad Yaqoob and others v. The State and others 1992 SCMR 1982 rel.

Mahram Ali Bali, Naveed Ahmed Khawaja, Muhammad Asjad Ch., Malik Usman Zafar, Rai Mohsin Iqbal, Ms. Asifa Manzoor, Muhammad Imran, Naseer Ahmed, Ghulam Kazim, Muhammad Nadeem Abbasi and Shah Nawaz Shah for the Appellants.

Waqar Hassan Mir, Malik Ishrat Hussain, Rana Abrar Ahmed Khan, Rana Moazzam Abbas and Malik Hammad Akhtar for the Complainant.

Ms. Maida Sobia, Deputy Prosecutor General for the State.

Date of hearing: 1st June, 2023.

Judgment

Asjad Javaid Ghural, J.---Through the afore-titled criminal appeals under Section 410, Cr.P.C., appellants Muhammad Anwar, Abdul Rehman, Muhammad Sarwar, Muhammad Afzaal alias Jalu, Naseer Ahmad, Muhammad Imran and Shabbir Hussain have challenged the vires of judgment dated 21.04.2018 rendered by the learned Addl. Sessions Judge, Lahore in case FIR No.276/10, dated 23.06.2010, in respect of offence under Sections 302, 324, 148, 149, 427 and 109, P.P.C. registered at Police Station, Manawan, Lahore whereby they were convicted and sentenced as under:-

i) Appellants Muhammad Anwar, Abdul Rehman, Muhammad Sarwar and Muhammad Afzaal alias Jalu;

Under Sections 302/149 P.P.C.

Death each, on four counts and to pay compensation of Rs.200,000/- to the legal heirs of all the deceased except Younis under Section 544-A Cr.P.C. each. In case of default, to further undergo simple imprisonment for six months on four counts each.

Under Sections 324/149, P.P.C.

Imprisonment for five years on two counts along with fine Rs.50,000/- on two counts each. In default thereof, to further undergo six months on two counts each. They were further directed to pay Rs.50,000/- each as compensation under Section 544-A, Cr.P.C. and in default thereof, to further undergo simple imprisonment for six months two times each.

Under Section 148, P.P.C.

For Rs.50,000/- and in default thereof, further undergo for two months each.

Appellant Anwar was further directed to pay the compensation of Rs.50,000/- and in default thereof, to further undergo simple imprisonment for six months two times.

Under Section 427, P.P.C.

For Rs.50,000/- and in default thereof, further undergo for two months each.

Accused Anwar was further sentenced under section 148, P.P.C. to pay Rs.50,000/- each as compensation under section 544-A, Cr.P.C. and in default of payment further undergo for six months two times.

ii) Appellants Naseer Ahmed, Muhammad Imran and Shabbir Hussain;

Under Sections 302/149, P.P.C.

Imprisonment for life on five counts and to pay compensation of Rs.200,000/- to the legal heirs of deceased as required under section 544-A Cr.P.C. each and in default thereof to further undergo simple imprisonment for six months on five counts each.

Under Sections 324/149, P.P.C.

Imprisonment for seven years on two counts each with fine Rs.50,000/- on two counts each. In default of payment, further undergo six months on two counts each and to pay Rs.50,000/- each as compensation under section 544-A, Cr.P.C. In default of payment, further undergo for the period of six months two times each.

Under Section 148, P.P.C.

For Rs.50,000/- and in default of payment, further undergo simple imprisonment for two months each.

Under Section 427, P.P.C.

For Rs.50,000/- and in default thereof, further undergo simple imprisonment for two months each.

Benefit of Section 382-B, Cr.P.C. was extended to the appellants and all the sentences were directed to run concurrently.

1. Murder Reference No.189 of 2018 sent up by the trial Court for confirmation or otherwise of death sentence of appellants Muhammad Anwar, Abdul Rehman, Muhammad Sarwar and Muhammad Afzaal alias Jalu and Criminal Revision No.213818/2018 preferred by complainant Mst. Rani Bibi seeking enhancement of sentence of respondents Nos.1 to 3 Shabbir Hussain, Muhammad Imran and Naseer Ahmed will also be decided through this common judgment.

2. The prosecution story unfolded in the crime report (Ex.PA) registered on the complaint (Ex.PA) of complainant Mst. Rani Bibi (PW-1) was that in the morning on 23.06.2010, she as well as her brothers Allah Ditta, Muhammad Said, Zulfiqar Ali, Muhammad Yousaf, Muhammad Yaseen, nephew Younas and husband Bashir was on their way at Ring Road Lahore after attending their date at Sessions Court, Lahore in connection with trial of case FIR No.273/2007, in respect of offence under Sections 302, 148 and 149 P.P.C., registered at Police Station, Manawan, Lahore on their double cabin dala whereas Zubair Akhtar and Muhammad Asghar were in follow-up on their motorcycle. When they reached near Jehangir Cold Store at Behni Road Jhugian at about 04:00/15 p.m., all of a sudden accused Muhammad Ashraf, Muhammad Sarwar, Muhammad Anwar, Abdul Rehman, Muhammad Ashraf, Muhammad Afzaal alias Jalu, Shabbir Hussain, Naseer Ahmed, Faqir Hussain and Imran along with 3/4 unknown accused while armed with fire arms emerged there from both sides of the road. Muhammad Ashraf raised a lalkara to kill all of them and opened firing upon Zulfiqar (deceased), which landed at various parts of his body. Accused Muhammad Sarwar opened straight fire shots with his firearm, which landed at the head and various parts of body of Allah Ditta (deceased) who succumbed to the injuries at the spot. The fire shot made by accused Anwar landed at different parts of the body of deceased Muhammad Said. The fire shots made by Abdul hit at different parts of the body of deceased Muhammad Younas. Accused Ashraf made fire shots upon Muhammad Yousaf, which landed at various parts of his body. The fire shots made by appellant Muhammad Afzaal alias Jalu hit at different parts of the body of Muhammad Yasin. Accused Shabbir Hussain made straight firing at Muhammad Bashir. Accused Naseer and Imran also caused firearm injuries upon all the injured. Thereafter, all the accused persons after making random firing and causing damage to the vehicle, succeeded to flee away. Said and Zulfiqar succumbed to the injuries at the spot, injured Allah Ditta and Younas kissed the dust in the hospital, whereas injured Yousaf breathed his last after three days of occurrence in the hospital. Muhammad Yousaf, Muhammad Yasin and Muhammad Bashir luckily survived.

Motive behind the occurrence was that accused Muhammad Anwar got lodged a case FIR No.273/07 dated 03.06.2007, in respect of offence under Sections 302, 148 and 149, P.P.C., registered at Police Station Manawan, Lahore qua the murder of his brother Safdar and due to that reason the accused persons, in connivance with each other and with the active abetment of Sardar Ahmed, Faqir Hussain, Muhammad Asghar and Shah Muhammad committed this occurrence.

1. Muhammad Nawaz, SI (PW-26) prepared injury statements as well as inquest reports of deceased Zulfiqar, Muhammad Said, Muhammad Younis, Allah Ditta and escorted their dead bodies to the mortuary. He visited the place of occurrence on the same day, took all necessary steps of initial investigation and also recorded the statements of the witnesses under Section 161, Cr.P.C. On 25.06.2010, he recorded the statement of injured witnesses namely, Muhammad Bashir, Muhammad Yousaf and Muhammad Yasin. On 17.03.2011 he joined appellant Abdul Rehman alias Abdul with the investigation of this case being arrested by the CIA Police. He also joined appellant Muhammad Sarwar with the investigation of this case on 02.06.2011 being arrested by the police at Police Station, Shah Kot District Sahiwal. After completion of investigation, he got prepared interim report under Section 173, Cr.P.C. He arrested accused Muhammad Iqbal in this case on 18.05.2016, who was subsequently discharged from the learned Magistrate.

Muhammad Aslam, Inspector (PW-29) arrested accused Bashir, Naseer Ahmed, Ashraf, Imran and Ashraf on 17.08.2010.

Khalid Jameel, ASI (PW-28) arrested appellant Muhammad Anwar on 19.10.2013, who during investigation led to the recovery of a Kalashnikov along with five alive bullets (P-25/1-5) on 01.11.2013, which was taken into possession through recovery memo. (Ex.PEEE).

Sardar Ali Rtd. SI (PW-30) joined appellant Afzaal alias Jalu with the investigation of this case being arrested by the police of Police Statin Gujjarpura, Lahore and during investigation, he led to the recovery of Kalashnikov (P-2) along with live bullets which was taken into possession through recovery memo. (Ex.PC) on 31.12.2011.

1. Dr. Muhammad Iqbal Ghani (PW-5) held autopsy on the dead body of deceased Allah Ditta on 24.06.2010 and observed injuries at various parts of his body being ante-mortem caused by fire arm weapon. Injury No.1 was sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was immediate, whereas between death and post mortem examination, it was 17 to 24 hours.

On the same day, he also held autopsy on the dead body of deceased Muhammad Younis and observed ante-mortem injuries at different parts of his body, which were sufficient to cause death due to injuries to vital organs in chest. Probable duration between injuries and death was within few minutes, whereas, between death and post mortem examination, it was 18 to 24 hours.

Dr. Riasat Ali, (PW-16) conducted post mortem examination on the dead body of deceased Muhammad Yousaf on 29.06.2010 and observed fire arm injuries at his death body. All the injuries were anti-mortem being caused by fire arm weapons whereas, injuries Nos.3 and 4 were caused by blunt means. The cause of death in this case was damage to neck muscles, vessels, vertebra, (cervical) and T4, T5 vertebra under injury No.2 leading to hemorrhage, paraplegia and sensory loss below T4 and T5, shock and death. Death was occurred in hospital and probable duration between death and post mortem was 17-hours and 20-minutes.

1. Muhammad Iqbal, Record Keeper (PW-31) furnished secondary evidence and verified the handwriting and signature of Dr. Mohsin Mukhtar regarding operation notes of deceased Muhammad Yousaf, injured Muhammad Yaseen and Muhammad Bashir. (Ex.PZZZ-11 to Ex.PZZZ-18).

2. At the commencement of trial, the trial Court framed a charge against the appellants to which they pleaded not guilty and claimed to be tried.

3. The prosecution examined 31-witnesses besides the reports of Punjab Forensic Science Agency Ex.PHHHH/1 to Ex.PHHHH/3 and Chemical Examiner Ex.PJJJJ/1 to Ex.PJJJJ/5. The appellants, in their statements recorded under Section 342, Cr.P.C., had denied and controverted all the allegations of facts levelled against them. They did not opt to make statement under Section 340(2), Cr.P.C., however, produced certain documents in their defence.

4. Learned trial Court, upon conclusion of the trial, proceed to acquit co-accused Sardar Ahmed, Faqir Hussain, Muhammad Asghar and Shah Muhammad whereas convicted and sentenced the appellants, as stated above, vide impugned judgment dated 21.04.2018. Hence, these criminal appeals as well as connected Murder Reference.

5. Learned counsel for the appellants have unanimously submitted that the appellants are quite innocent and have nothing to do with the alleged occurrence; that the complainant, being chance witness, could not establish her presence at the venue of occurrence, who had no occasion to be present there at the relevant time; that all the prosecution witnesses were closely related to the deceased persons and as such their testimony cannot be relied upon; that two independent witnesses namely, Zubair Akhtar and Asghar were not produced and given up by the prosecution before the trial Court, which shows that they were not ready to support the prosecution version being false one; that all the eye-witnesses including the injured witness, made material improvements in their statements before the trial Court and made contradicting statements, which is not worth reliance; that there was delay of 16-24-hours in conducting respective post mortem examination on the dead body of all the deceased and as such the inference could be drawn that the prosecution took such a long time in order to manage the eye-witnesses; that there was delay of two days in recording statements of injured witnesses under Section 161, Cr.P.C., which has lost its credence; that the recovery of weapons of offence at the instance of appellants Muhammad Anwar, Abdul Rehman, Muhammad Afzal alias Jalu and Muhammad Sarwar remained inconsequential; that all the prosecution witnesses admitted during the course of cross-examination that both the parties were on visiting terms, as such the motive as set out by the prosecution has become immaterial. At the end, prayer has been made for acquittal of the appellants.

6. Conversely, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant has vehemently contended that it was a broad-day light occurrence, which was promptly reported to the police containing names of the appellants with the specific role of committing murder of five innocent persons and causing injuries to two others; that the complainant has well explained her presence at the venue of occurrence, which could not be shattered by the defence during her cross-examination; that both the parties were previously known to each other and as such question of misidentification of the real culprits does not arise; that the injured witnesses were shifted to the hospital prior to the arrival of Investigating Officer as such their statements could not be recorded at the venue of occurrence; that the Investigating Officer did not visit the hospital where the injured PWs were admitted, as such delay in recording of their statements was not fatal in the instant case; that the eye-witnesses remained firm and consistent on all material aspects of the case coupled with the medical evidence; that delay in conducting post mortem examination was due to non-availability of the doctors; that there was no occasion for the prosecution to falsely involve the appellants while letting off the real culprits; that the prosecution produced cogent, convincing and confidence inspiring evidence and prove the charge against the appellants beyond shadow of reasonable doubt. In the end, a prayer has been made for dismissal of the appeals and confirmation of death sentence and also enhancement of sentence of appellants Shabbir Hussain, Muhammad Imran and Naseer Ahmad.

7. We have heard learned counsel for the appellants, learned Deputy Prosecutor General appearing for the State assisted by learned counsel for the complainant and perused the record with their able assistance.

8. This unfortunate incident took place on 23.06.2010 at about 04:15 p.m., which was reported to the police promptly on the same day at about 05:35 p.m. within one hour and twenty minutes and formal FIR (Ex.PV) was chalked out at 05:55 p.m., despite the fact that inter-se distance between the place of occurrence and the police station was seven kilometers containing names of the appellants with their specific role of making fire shots at the deceased as well as the injured witnesses, which not only confirms presence of the eye-witnesses at the spot but also excludes every hypothesis of deliberation, consultation and fabrication prior to the registration of the case and also rules out the possibility of mistaken identification or substitution. Reliance is placed on case reported as Noor Sultan and others v. The State (2021 SCMR 176), wherein it has been laid down as under:-

"The instant occurrence has taken place on 6.15 p.m. while the matter was reported to the police within 2.15 hours whereas inter-se distance between the place of occurrence and police station is 16 kilometers. Promptness in reporting the matter to the police reflect that there is no chance of consultation or deliberation at the part of the prosecution."

Similarly, in case reported as Shaheen Ijaz alias Babu v. The State (2021 SCMR 500), it has been laid down as under:-

"…..petitioner's nomination in a broad day light incident by resident witnesses hardly admits a space to entertain any hypothesis of mistaken identity or substitution. Prompt recourse to law straight at the police station excludes every possibility of deliberation or consultation."

In case reported as Muhammad Waris v. The State (2008 SCMR 784) it has been laid down as under:-

"The names of the said two eye-witnesses could not have been mentioned in such a promptly lodged FIR. if they had not been with the deceased persons at the time of their death."

1. The motive is considered as an essential ingredient to provide foundation to any crime. Admittedly, there was a previous murder enmity between the parties and prior to this incident, a case FIR No.273/07 dated 03.06.2007, in respect of offence under Sections 302, 148 and 149 P.P.C. was got lodged by one of the appellants namely, Muhammad Anwar qua the murder of his brother Safdar against deceased Allah Ditta, Muhammad Younis, Muhammad Said, Zulfiqar Ali and injured Muhammad Yasin. During investigation of said case, all the deceased persons were found innocent and report under Section 173, Cr.P.C. (Ex.PKKK/1-4) was submitted by placing their names in column No.2 thereof, whereas, injured Muhammad Yasin (PW-3) was sent up to the Court for trial being sole perpetrator of the said murder. Being dissatisfied with the investigation, appellant Muhammad Anwar filed a private complaint (Ex.PLLL/1-13) against the deceased persons and injured PW. It is also an admitted fact that said case was pending adjudication before the trial Court and on the day of occurrence, the same was fixed for hearing. Learned counsel for the appellants has referred certain portions of admissions of the complainant (PW-1) during her cross-examination that "We were on visiting terms with each other and in the said period there was no quarrel/difference interse……The accused persons remained using the said passage in routine and no quarrel took place on the said passage in between my brothers and accused persons…… We all the family members i.e. sisters, brothers, parents, used to visit the complainant party of Safdar deceased. During our visits none of the accused ever assaulted us…… Zulfiqar was running an Agency of Fertilizer etc. Accused used to purchase agricultural commodities from Zulfiqar, amicably" and argued that in the light of such admissions, it cannot be said that this incident was result of previous FIR. These admissions also raised our eye-brows for a moment but while going through the entire evidence, it came on surface that the learned defence counsel have skipped the most pivotal portion of the statement of the complainant, whereby she explained that "We sought pardon from the accused persons regarding the said murder soon after the occurrence and we remained seeking asking for pardon for about three years." It is a matter of record that request of the complainant party for pardon was never acceded to by the accused side. Had relationship between the parties was of such a pleasant nature, the parties would have been entered into compromise in the previous murder case. Developing cordial relations with the accused persons might be an effort of the complainant party in order to seek pardon from earlier case but it remained futile. It is important to note that in the aforesaid case, defence side booked five accused persons, out of which four were declared innocent at the stage of investigation and they were on bail, whereas, injured Muhammad Yasin (PW-3) was behind the bars, who was granted post arrest bail by this Court vide order dated 03.06.2010 passed in Crl. Misc. No. 4398-B-2010 (Ex.PMMMM/1-1). This unfortunate occurrence took place just after twenty days of release of said Muhammad Yasin from the jail. We have entertained no manner of doubt in our mind that release of injured Muhammad Yasin (PW-3) added fuel to the fire and after this development, the appellants organized a plan and took revenge from the complainant party. No doubt previous enmity, being motive, is always considered as a double edged weapon but from the evidence available on record it has been established that it was the sole reason of this unfortunate incident. With this backdrop, we are persuaded to hold that the prosecution has successfully proved motive part of the occurrence through oral as well as documentary evidence.

2. Mst. Rani Bibi (PW-1)/complainant furnished the ocular account before the trial Court and reiterated the contents of the crime report deposing that on the fateful day she along with her brothers Allah Ditta, Muhammad Saif, Zulfiqar Ali, Muhammad Yousaf, Muhammad Yasin, nephew Younas and husband Bashir went to attend the court proceedings in a criminal case on a Daala (double cabin). Zubair Akhtar and Asghar PWs followed them on a motorcycle. After attending the court proceedings, on the way to home, when they reached near Jehangir Cold Store at Behni Road at about 04:00/15 p.m., all the accused persons 12/13 in numbers, including accused Ashraf son of Asghar, (since acquitted on the basis of compromise) Ashraf son of Muhammad Din (since dead), Afzaal alias Jaalo, Sarwar, Abdul, Anwar, Shabir, Naseer and Imran while armed with fire arm weapons, emerged there from both sides. Accused Ashraf son of Asghar (since acquitted) raised a Lalkara to kill all of them and opened firing upon Zulfiqar deceased, which landed at various parts of his body. Appellant Afzaal alias Jalu, made fire shots upon Zulfiqar and Muhammad Yasin at different parts of their bodies, Accused Ashraf son of Muhammad Din (since dead) made fire shots upon at different parts of body of deceased Muhammad Yousaf, appellant Abdul caused fire arm injuries to deceased Younas, appellant Sarwar caused fire arm injuries to deceased Allah Ditta, appellant Anwar made fire shots at deceased Said, appellant Shabbir caused fire arm injuries to injured Muhammad Bashir (PW-2), whereas appellants Naseer and Imran were collectively attributed the role of making fire shots upon all the above victims. The appellants, while making random firing upon vehicle of the complainant party, succeeded to flee away towards river Ravi. Said and Zulfiqar succumbed to the injuries at the spot, Allah Ditta and Younas at the hospital on the same day, while deceased Yousaf breathed his last after three days of occurrence in the hospital. Muhammad Bashir, (PW-2) and Muhammad Yaseen (PW-3)/injured witnesses deposed exactly in line and supplemented the complainant on each and every minute detail of the incident of murder in issue. In the course of cross-examination, all the witnesses of ocular account remained firm and consistent on all material aspects of the incident qua the date, time, place, mode and manner of the occurrence, names of the appellants, weapons of offence, role played by each and every accused for committing murder of the deceased and causing injuries to the injured witnesses and the defence could not extract any favourable material from their mouths.

Learned defence counsels laid much emphasis that the complainant was neither accused in the criminal case, which was fixed on the fateful day nor she sustained even a scratch on her body and as such her presence at the venue of occurrence was highly doubtful. We are not in agreement with the submission of learned defence counsels for the reason that during cross-examination, complainant explained that she alon gwith her husband Bashir Ahmad (PW-2) intended to pay homage to Data Darbar at Lahore and as such they accompanied the deceased, who had to attend the Court proceedings there. This is a very valid reason and cannot be sighted with doubt. Even otherwise, on this point the defence has questioned the complainant at a considerable length but she remained firm and consistent and even gave minute details of description of floor, mosque, path and even colour and height of shrine and the defence remained fail to shake her testimony on this point. So far as non-sustaining of injuries by the complainant lady while all other members present in the Daala had sustained injuries, is concerned, we have gone through the back-ground of the incident. Initially, brother of appellant Muhammad Anwar was murdered and four of the deceased persons as well as one injured (PW-3) were booked in the said case. The deceased persons were declared innocent by the police, whereas, injured Muhammad Yasin (PW-3) was released on post arrest bail after more than three years of his arrest. After his release, the appellants hatched a plan of taking revenge and tried to commit murder of entire male members of their opponents. Leaving the complainant scratchless, appears to be a calculated move on part of the appellants to make her an example and let her alone to feel the pain and misery of departure of her dear ones. They were very much aware that in our society, a female, howsoever strong may be, always remains unable to take them a task in the Courts and as such leaving her alive is not of significance for them. Even otherwise, if the prosecution intended to manage/procure a complainant, a male member ought to be given preference because generally, in our rural set up, people avoid to drag their females in criminal litigation. The crime report was lodged with sufficient promptitude, and the complainant faced the test of lengthy cross-examination from time to time spreading the period of over three years with full confidence and described the gruesome incident in a minute detail, which established her presence at the venue of occurrence at the relevant time without any doubt. Even if for the sake of arguments, testimony of the said witness is excluded from consideration even then it would not helpful to the defence. In the matter of appreciation of the evidence it is not the number of witnesses rather quality of evidence is worth importance. There is no requirement under the law that a particular number of witnesses are necessary to prove/disprove a fact. It is time honoured principle that evidence must be weighed and not counted. Reliance is placed on case titled "Niaz-ud-Din and another v. The State and another" (2011 SCMR 725), "The statement of Israel (PW.9) the eye-witness of the occurrence is confidence inspiring, which stand substantiated from the circumstances and other evidence. There is apt observations appearing in Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) that even in a murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable. The reason being that it is the quality of evidence and not the quantity which matters."

1. Muhammad Bashir (PW-2) and Muhammad Yasin (PW-3), sustained injuries during the occurrence and as such their presence at the venue of occurrence at the relevant time cannot be questioned in any manner. They appeared in the dock before the trial Court and categorically raised accusing finger towards none else but the appellants being responsible for the murder of five innocent persons and causing fire arm injuries to the injured witnesses. Both these witnesses faced the test of lengthy cross-examination with full confidence, which could not be crushed by the defence in any manner with even a slight difference. The statement of both the said witnesses rather is sufficient to believe the prosecution version and bring home guilt against the appellants beyond shadow of even slightest doubt.

2. Though all the witnesses of ocular account were closely related to the deceased inasmuch as the complainant is their real sister/aunt, whereas, Muhammad Yasin (PW-3), their real brother/uncle and Muhammad Bashir (PW-2), their brother-in-law/husband of complainant yet their testimony cannot be discarded merely on this score by treating them interested witnesses. Both the injured witnesses sustained injuries during the occurrence and as has been discussed supra the complainant has also established that she was accompanying the deceased at the relevant time, as such they were quite natural witnesses, who can conveniently describe the incident in the manner as it happened as compared to any other independent witness. There was no earthly reason for the eye-witnesses to falsely implicate the appellants in substitution of the real culprits. Even otherwise, substitution of the real culprits with an innocent one, in particular, where the eye-witnesses have lost their close kith and kin, is a rare phenomenon. It is well established principle in criminal administration of justice that mere relationship of the eye-witnesses with the deceased is not sufficient to discard their evidence, if the same was otherwise found confidence inspiring and trustworthy. Reliance is placed on case reported as "Ghulam Murtaza v. The State" (2021 SCMR 149).

3. Next objection of the defence was that two independent witnesses namely, Zubair Akhtar and Asghar mentioned in the crime report were given up by the prosecution, so the inference could be drawn that they were not ready to support the prosecution version. This submission is repelled. It is well settled by now that the prosecution is not bound to produce all the witnesses. If the appellants were sure that these witnesses were not ready to support the prosecution witnesses, they had ample opportunity rather at liberty to examine them in their defence or even submit application before the trial Court to summon them as Court Witnesses but merely on that basis other overwhelming and confidence inspiring prosecution evidence cannot be discarded. Reliance is placed on case reported as "Saeed Akhtar and others v. The State" (2000 SCMR 383).

4. It has been emphatically argued by learned counsel for the appellants that there was delay of two days in recording the statements of the injured witnesses under Section 161, Cr.P.C., which impinges their credibility. No doubt delay in recording statements of the eye-witnesses is mostly seen with doubt but here in the instant case situation is quite different. In this unfortunate incident seven persons sustained fire arm injuries, out of which two breathed their last at the spot, whereas, rest were in semi-conscious condition. In such scenario, the natural human reaction should be to make all out efforts to save the lives of injured persons despite being in the condition of sorrow and anguish due to death of close kith and kin. The same has been done in the instant case and with the available opportunity all the five injured persons were shifted to the hospital. This fact was admitted by Muhammad Nawaz, SI/ Investigating Officer (PW-26) in the following terms:-

"When I reached the place of occurrence, two dead bodies were found lying in the double cabin Daala. It is correct that except these dead bodies, no other injured and deceased was lying there. Volunteered stated that rest of the injured persons were already shifted to the hospital prior to my arrival over there."

We have minutely examined medico legal certificates of both the injured PWs. According to the MLC of injured Muhammad Bashir (Ex.PGGG), he was brought to the hospital in semi-conscious condition on the day of occurrence at about 05:26 p.m. Similarly, according to MLC of injured Muhammad Yaseen (Ex.PHHH), he was also brought to the hospital on the same day in semi-conscious condition. Though the time of his arrival does not find mentioned in the medical report yet keeping in view his semi-conscious condition, it can safely be presumed that he was also shifted to the hospital soon after the occurrence. Now, when the Investigating Officer admitted that both the injured persons were shifted to hospital prior to his arrival, it was his duty to visit the hospital for the purpose of recording their statements but he while appearing in the witness box conceded that he visited Mayo Hospital for the purpose of recording statements of the injured persons after two days of the occurrence. In this unfortunate case, all the male members of the complainant had either lost their lives or were admitted in the hospital being in injured condition and, thus, it is not expected for a sole female household lady to herself make arrangements for recording the statement of the injured witnesses. Even otherwise, neither the Medical Officer, who medically examined the injured PWs, observed any kind of fabrication or friendly-hand injury nor the appellants made any effort to challenge their medico-legal reports at any forum. It can be safely concluded that both the injured witnesses sustained injuries during the occurrence and if there was any lapse due to act of the Investigating Officer for recording their statements under Section 161, Cr.P.C. belatedly, its benefit cannot be extended to the defence in any eventuality. Reliance is placed on case reported as "Sheraz Asghar v. The State" (1995 SCMR 1365), wherein it has been observed that

"Besides any irregularity committed during the investigation of case would neither affect the trial of the case nor the judgment passed by the Courts."

1. Learned defence counsels have pointed out certain contradictions in the statements of the prosecution witnesses claiming it to be material one but the same cannot be taken as material. No doubt there are slight discrepancies amongst the statements of the PWs but the same are of no significance for the reasons that the first and foremost impression, which gathers from the testimonies of said witnesses is that they are rustic witnesses. They were subjected to cross-examination for a long period of eleven days, which span over three years. It is well settled principal of criminal administration of justice that the witnesses who were subjected to fatiguing, taxing and tiring cross-examination for days together are bound to get confused and made some inconsistent statements, therefore, discrepancies cited by learned defence counsels should not be blown out of proportion. Specific attribution against the appellants by the eye-witnesses in their statements and deposition was exactly the same as mentioned in the rough site plan prepared by the police at the spot in the first visit which means that they never changed their stance qua the role of the appellants played at the spot for committing murder of five innocent persons and injuries to two others. We are of the considered view that there is no contradiction amongst the statements of the PWs, which would shatter the case of the prosecution. It is well settled by now that the discrepancies of minor character which neither go to the root of the prosecution version nor shake its salient features are of no significance. Reliance in this regard is placed on case reported as Ansar and others v. The State and others (2023 SCMR 929).

2. Dr. Muhammad Iqbal Ghani (PW-5) held autopsy on the dead body of deceased Allah Ditta on 24.06.2010 at about 12.15 p.m. and observed injuries at the top of head, front of right upper arm, front of abdomen, right iliac fossa, right hip and inner aspect of upper aspect of left leg. According to the opinion of medical expert, all the injuries were ante-mortem, caused by fire arm and injury No.1 was sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was immediate, whereas, between death and post mortem examination, it was 17 to 24 hours.

On the same day, he also held autopsy on the dead body of deceased Muhammad Younis at 01:15 p.m. and observed injuries on front of his left shoulder, front of left upper chest, front of root of neck, antero-latera part of right upper chest, right upper arm, back of right chest, right upper chest, back of left chest, antero lateral part of right chest, back of left shoulder, front of neck in middle, front of neck on left side and under the chin. His ribs 2nd to 7th on right side were fractured. Plora was perforated. Pleural cavity contained 3 liters of blood. Trachea was traumatized. Both right and left lungs were traumatized and perforated. Both atria were perforated. Aorta was perforated. According to the opinion of medical expert, all the injuries were ante-mortem, caused by fire arm. Cause of death was injuries to vital organs in chest. Probable duration between injuries and death was within few minutes, whereas, between death and post mortem examination, it was 18 to 24 hours.

Dr. Riasat Ali, (PW-16) conducted post mortem examination on the dead body of deceased Muhammad Yousaf on 29.06.2010 at 09:30 a.m. and observed injuries on his postro lateral right aspect of neck, left side of face and lateral side of right chest. All the injuries were anti-mortem, injuries Nos.1 and 2 were caused by fire arms, whereas, injuries Nos.3 and 4 were caused by blunt means. The cause of death in this case was damage to neck muscles, vessels, vertebra, (cervical) and T-4 and T-5 vertebra under injury No.2 leading to hemorrhage, paraplegia and sensory loss below T4 and T5, shock and death. Death was occurred in hospital and probable duration between death and post mortem was 17 hours and 20 hours.

Dr. Mohsin Mukhtar held autopsy on the dead body of deceased Muhammad Saeed and Zulfiqar on 24.06.2010 at 09:30 a.m. and 10.30 a.m. respectively and issued their respective post mortem examination reports (Ex.PA and Ex.PB). He also conducted medico-legal examination of injured Muhammad Bashir and Muhammad Yasin on 23.06.2010 and issued their MLCs (Ex.PGGG and Ex.PHHH) respectively. Muhammad Iqbal, Record Keeper appeared as PW-21 and 31 and identified handwriting and signature of the doctor on the Post Mortem Examination Reports and Medico Legal Certificates.

The locale, number and nature of injuries, weapons of offence used for causing these injuries and the duration between injuries and death as well as death and post mortem examination, was exactly in line with the ocular account and as such, the medical evidence lends full support to the prosecution version. Though there was delay ranging from 17 to 24 hours in conducting post mortem examination on the dead bodies of the deceased yet to our mind the same is not fatal for more than one reasons. Firstly, in this unfortunate incident five persons lost their lives, two sustained injuries and only a female remained safe. Muhammad Nawaz, SI (PW-26), who reached at the spot within 20/25 minutes after the occurrence stated that dead bodies of deceased Zulfiqar and Said were lying at the spot, whereas, rest of five injured persons had been shifted to the hospital and after fulfillment of codal formalities, he transmitted those two dead bodies to the mortuary without wastage of time. In this way, it can safely be concluded that the deceased, either in injured condition or dead, were shifted to the hospital soon after the occurrence and there was no deliberate delay in dispatching them to the mortuary/hospital and if afterwards the autopsy was held belatedly, the defence cannot claim its premium. Secondly, one of the deceased namely Muhammad Yousaf, while in injured condition was shifted to Mayo Hospital, Lahore where he remain admitted for five days and breathed his last on 28.06.2010, whereafter, his dead body was shifted to the KEMU for post mortem examination on the same day at 7.00 p.m. but even in that case, his autopsy was held with a delay of seventeen hours. We are unable to understand what kind of benefit the prosecution could achieve in delaying the post mortem examination of above deceased, as all the codal formalities including lodging of crime report, recording of statements of prosecution witnesses under section 161, Cr.P.C. have already been completed. We can safely concluded that it was pattern of the hospital to conduct autopsy after a certain period either due to some administrative issue or non-availability of doctor, therefore, its benefit cannot be extended to the appellants. Reliance is placed on case reported as "Muhammad Asif v. Mehboob Alam" (2020 SCMR 837), wherein, delay for conducting the postmortem examination was twelve to twenty hours and it has been laid down by the Apex Court that:-

"In a country where the medical facility cum availability of paramedics for the job assigned is not easy task, the consumption of such a time seems to be quite reasonable, hence the prosecution evidence cannot be brush aside on this score alone to extent the benefit of doubt as claimed."

Similarly, in case reported as "Ghulam Rasool v. The State" (2010 SCMR 1579), it has been observed as under:-

"the dead body was brought to the hospital at 9.45 a.m. and if for some reason may be administrative or due to lack of the Doctors/ staff, the post mortem was conducted later, it would not render the case of doubtful in nature, so as to ignore strong ocular evidence."

1. Learned defence counsels have laid much emphasis that the weapon of offence Kalashnikov (P-2), Kalashnikov (P-25) recovered at the instance of Afzaal alias Jalu and Muhammad Anwar respectively, did not match with the crime empties secured from the place of occurrence, whereas, nothing was recovered from the remaining death convicts/appellants, which fact alone is sufficient to take the same as a mitigating factor for awarding lessor punishment. As far as effect of inconsequential of weapon of offence shown to have been recovered at the instance of appellants Afzaal alias Jalu and Muhammad Anwar is concerned, we have observed that former was arrested after eighteen months, whereas, latter was after 36 months of the occurrence and in the intervening period, the weapons of offence used during the occurrence, are supposed to have not been preserved. There is every possibility that he handed over different weapon of offence, with the intention to claim benefit of its being inconsequential at a subsequent stage and as such, it cannot be taken as a mitigating factor for awarding lessor punishment. Similarly, rest of death convicts also remained fugitive from law for a considerable period ranging from 09 months to 3-years, therefore, non-recovery of weapons of offence from them after such a long period is immaterial. Even otherwise, it is well settled law that when the ocular account is found to be confidence inspiring and trustworthy, mere fact that recovery is inconsequential by itself could not be a ground for lessor punishment. Reliance is placed on case reported as "Nasir Ahmed v. The State" (2023 SCMR 478).

2. All the death convicts namely, Abdul Rehman, Muhammad Sarwar, Muhammad Anwar and Muhammad Afzaal alias Jalu remained fugitive from law for a considerable period of time. No doubt absconsion is not a conclusive proof of guilt of an accused but at the same time it cannot be overlooked when the evidence available on record suggests that the accused had deliberately and intentionally avoided to face the trial due to their guilty conscious. In case reported as "Ch. Muhammad Yaqoob and others v. The State and others" (1992 SCMR 1982), it has been laid down that:-

"Furthermore, a distinction is to be drawn between a case in which an accused person immediately after the commission of the offence absconds and a case in which he absconds at the stage of arguments in the trial Court. The former being close proximity with the commission of the offence would carry more evidentiary value as compared to the latter."

1. For what has been discussed above, we have entertained no manner of doubt in our mind that the prosecution has successfully proved the charge against the appellants for committing deliberate and premediated murder of five innocent persons with common object and causing injuries to two others through cogent, reliable and confidence inspiring evidence. This unfortunate incident took place in a broad day light, the parties were already known to each other and in such situation, the question of miss-identification does not arise in any eventuality. The complainant has well explained her presence at the venue of occurrence, whereas, two other eye-witnesses being injured witnesses, also proved their presence at the spot through cogent and confidence inspiring evidence. Motive as set out by the prosecution has successfully been proved. The complainant lady would have been the last person to falsely implicate the appellants in case of murder of her four real brothers and one nephew in substitution of real culprits. Even otherwise, substitution is always considered to be a rare phenomenon in cases where the complainant lost his/her close kith and kin. The appellants have committed the murder of five persons of one family in a most gruesome and cold blooded manner. The persons responsible for committing such brutal, shocking, horrific and panic creating incident in the society deserve no leniency. We have observed, that appellants Muhammad Imran, Shabbir Hussain and Naseer Ahmed to whom no specific role was attributed and general role of causing fire arm injuries to the deceased and injured persons, has already been awarded imprisonment for life by the trial Court because of mitigating circumstances. However, learned defence counsels have failed to bring on record any iota of circumstance, which may be taken as a mitigating circumstance for awarding lessor punishments to the death convicts to whom specific injuries at the deceased persons were not only attributed but also found existent. In case reported as 'Muhammad Sharif v. The State' (1991 SCMR 1622), it has been laid down as under:-

"There can be no controversy that the normal penalty prescribed for the murder by the Divine Law as also the law of the land is death. A murderer is guilty of his actin before The Almighty Allah. He is regarded as the murderer of humanity. A Judge is required to do justice on each and every aspect strictly in accordance with law and should not mould the alternatives to favour the guilty. It is the Divine will that we must be firm and resolute to do justice whether it be detrimental to our own interests or the interest of those who are near and dear to us. Mercy is the attribute of God but we are warned not be allow that which is otherwise unlawful--- moreover, we should now show mercy to those who themselves are proved to have acted mercilessly."

2024 Y L R 1784

[Lahore (Bahawalpur Bench)]

Before Anwaarul Haq Pannun and Abid Hussain Chattha, JJ

Rana Abid Hussain and others---Appellants

Versus

National Highway Authority and others---Respondents

R.F.As. Nos. 100 and 113 of 2018, heard on 7th October, 2021.

Land Acquisition Act (I of 1894)---

----Ss. 4, 18 & 54---Land acquisition---Compensation, quantum of---Acquisition of land for a public purpose---Referee Court enhanced the compensation from Rs. 600,000/- per acre to Rs. 1600,000/- per acre---Propriety---Respondents filed appeal against the enhancement---Validity---Irrefutable evidence was available to establish that the property was situated on both sides of towns, which were commercial and residential in character---Even the concerned Khata had a cluster of densely populated area with multiple Government and private ventures including petrol pump, high school and police station---Property was not more than 1½ kilometers away from that point---Presence of emerging residential colonies was also established---Evidence on record unequivocally demonstrated that the property though was being used for agricultural purposes yet had assumed all the characteristics and features of commercial or residential property---Potential value of the property was much more than being extracted at the time of acquisition on account of its peculiar location in terms of its presence on the road and its closeness to two cities---Mere fact that the appellants had not converted the property from agricultural to commercial status was an irrelevant consideration to determine the potential value of the property---Appellants were not required to do so and had every right to hold and enjoy the property in the manner they so desired---Fact that most of the sale mutations brought on record consisted of small portions of land manifestly demonstrated that land in the area was a precious and scarce commodity being located close to two cities---Therefore, such sale mutations of small portions of land were not completely out of context and could not be ignored altogether when transactions of bigger holdings were not available---Especially, when the property had the potential of conversion into smaller residential or commercial units as was evident from the fact of emerging residential colonies and existence of a host of commercial ventures in close vicinity of the property---Moreover, it was an admitted fact that the property was a sizable chunk and existed as a compact block before acquisition---Property was divided into parts in consequence of acquisition, thereby, adversely affecting its value and impairing its future potential---Nevertheless, such particular negative impact on the property might have been compensated or off-set to some extent on account of overall price escalation due to the project itself but the damage caused to the property through acquisition was vividly evident---In view of the above, the elements of potential value as well as damage to the property by virtue of acquisition were duly proved---Record showed that market value of the property was much higher than awarded in the Award or by the Referee Court---Sale mutations exhibited by the appellants for the years 2013 to 2014 regarding the same Khata ranged from Rs. 16,667/- to Rs. 400,000/- per Marla---Seven mutations of Rs. 66,667/-;25,000/-; 200,000/-; 16,667/-; 75,000/-; 20,000/-; and 66,667/- more or less depicted the normal range of price in fair arm's length transactions between a willing purchaser and a willing seller in the same Khata before the date of the Notification under S.4 of the Act---Conversely, sale mutations exhibited by the National Highway Authorities regarding the same Khata for the years 2013 to 2014 ranged from Rs. 4,286/- to Rs. 5,000/----However, the National Highway Authority could not produce more than three mutations of the concerned Khata and was constrained to exhibit sale mutations fromother Khatas without proof of their relevance---Documentary evidence of the National Highway Authorities was not of any relevance or help to High Court to arrive at the fair market or potential value of the property---Average sale price per Marla of the sale mutations produced by the appellants as well as sale mutation produced by the National Highway Authorities was arrived at Rs. 60,000/- per marla approximately by discarding the rest of the sale mutations as irrelevant for being located in different Khatas without proof of relevance or pertaining to irrelevant period---However, the said price was required to be proportionately discounted in view of price of sale mutations recorded in small portions of land; most of the sale mutations being apparently with respect to residential or commercial properties; wastage of the property when converted into developed land for future use and considering that the property though being located close to two cities yet was not adjacent thereto and at a distance of at least of 1½ K.M from the cities---Balancing the pro and contra evidence of the parties to the lis in the light of factors stipulated in S.23 of the Act and settled principles of compulsory acquisition of land the High Court applied 70% deduction or discounting factor in aggregate to the average sale price determined---Potential value of the property and impact of its division was incorporated in the above formula---Accordingly, the fair market and potential value of the property was settled at Rs. 18,000/- per marla---However, the claim of compensation regarding standing sugarcane crop was dropped for insufficient evidence---Appeal filed by the National Highway Authorities was dismissed, whereas appeal filed by private persons was partially accepted by modifying the fair compensation of the property by enhancing it to Rs. 18,000/- per Marla along with entitlement to additional compensation of 15% per annum of the above fixed compensation and compound interest at 8% per annum from the date of possession of the property till the date of payment of compensation with costs of the appeal---Appeal filed by the land owners was partially allowed.

Secretary Communication and Works Department Government of Balochistan and others v. Dad Bakhsh and another 2013 CLC 343; Sardar Muhammad Ashraf (deceased) through LRs. and others v. Government of N.W.F.P. (now KPK) through Collector and others 2011 SCMR 1244; Nisar Ahmad Sabri through L.Rs. and others v. Government of Punjab through Secretary, Labour Department and others 2015 YLR 2095; Land Acquisition Collector, National Highway Authority, Lahore and another v. Javed Malik and others 2009 SCMR 634; Lahore Ring Road Authority and others v. Mian Mumtaz Ahmad and others 2021 CLC 178; Muhammad Yaqoob through Legal Heirs v. Land Acquisition Collector (M-4) National Highway Authority and 4 others PLD 2021 Lahore 364; Manzoor Hussain (deceased) through L.Rs. v. Misri Khan PLD 2020 SC 749; Mian Ahmad Raza and 2 others v. Karim Bakhsh through L.Rs. and others 2007 SCMR 1595; Government of Sindh and 2 others v. Muhammad Usman and 2 others 1984 CLC 3406; Muhammad Akram and another v. Mst. Farida Bibi and others 2007 SCMR 1719; Muhammad Rafique Awan v. The Land Acquisition Collector, National Highway Authority and 4 others 2021 MLD 766; Dilawar Hussain and others v. Province of Sindh and others PLD 2016 SC 514; Liyar Khan v. Land Acquisition Collector/A.C., Swabi 2003 YLR 3287; Khanma Bi and 9 others v. Collector Land Acquisition, Mangla Dam Raising Project, Mirpur and another 2018 MLD 1764; Land Acquisition Collector (M-1) National Highway Authority Islamabad and 4 others v. Zahir Shah and 5 others 2016 YLR 2462; Government of N.W.F.P. and others v. Akbar Shah and others 2010 SCMR 1408; National Highway Authority through Chairman and 2 others v. Bashir Ahmad and 2 others 2018 CLC Note 63; Kolkata Metropolitan Development Authority and another v. Gobinda Chandra Makal and another 2012 SCMR 1201; Civil Aviation Authority through Project Director and others v. Rab Nawaz and others 2013 SCMR 1124; Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84; Special Land Acquisition Officer v. Maharani Biswal and others 2012 SCMR 1179; Sh. Faqir Muhammad v. Land Acquisition Collector and others 2011 MLD 1308 and Abdul Ahad and 19 others v. Government of Balochistan through Secretary C & W and others 2017 MLD 1276 ref.

Anwar-ul-Haq Chaudhary v. District Officer (Revenue), Narowal and 4 others 2017 CLC 66; Zardad Khan and others v. Government of N.W.F.P. and others 1987 SCMR 1387; Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others 2000 SCMR 870; Land Acquisition Collector, G.S.C., N.T.D.C. (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan 2015 SCMR 28; Province of Punjab through Land Acquisition Collector and another v. Begum Aziza 2014 SCMR 75; Fazal Haq College through Vice-Chairman v. Said Rasan and others PLD 2003 SC 480; Province of Sindh through Collector of District Dadu and others v. Ramzan and others PLD 2004 SC 512; Special Land Acquisition Officer and another v. M.K. Rafiq Saheb 2012 SCMR 1140; Air Weapon Complex through DG v. Muhammad Aslam and others 2018 SCMR 779 and Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Murtaza and others 2016 SCMR 1141 rel.

Malik Imtiaz Mehmood Awan for Appellants.

Malik Muhammad Tariq Rajwana and Syed Mudassar Hussain Naqvi for the Respondents.

Date of hearing: 7th October, 2021.

Judgment

Abid Hussain Chattha, J.---This consolidated Judgment shall decide R. F. A. No. 100 / 2018 / BWP instituted by the Appellants and cross R. F. A. No. 113/ 2018 / BWP filed by National Highway Authority (the "NHA") under Section 54 of the Land Acquisition Act, 1894 (the "Act") directed against the impugned Judgment and Decree dated 19.04.2018 passed by the Senior Civil Judge, Rahim Yar Khan, whereby, the Reference of the Appellants under Section 18 of the Act was partially accepted and the fair compensation of the acquired land was enhanced from Rs. 3,750/- per Marla (Rs. 600,000/- per Acre) to Rs. 10,000/- per Marla (Rs. 1,600,000/- per Acre) along with additional compensation @ 15% per annum of the above fixed compensation and compound interest @ 8% per annum from the date of the Notification under Section 4 of the Act to the date of payment of compensation.

1. Facts necessary for the decision of the titled Appeals are that the Appellants were owners-in-possession of land measuring 39 Kanals 15 Marlas in Khata No. 196/96, Khatooni Nos. 580 to 581 out of total Khata measuring 584 Kanals 10 Marlas as per Register of Record of Rights for the year 2010-2011 situated at Revenue Estate Shedani Sharif, Tehsil Liaquatpur, District Rahim Yar Khan (the "Property"). The Property was acquired at the instance of the NHA for public purpose in connection with the construction of Karachi-Lahore Motorway, Multan to Sukkur Section. Acquisition proceedings were initiated through issuance of the Notification dated 19.07.2014 under Section 4 of the Act culminating into an award bearing No. AC/LAC/713-721 dated 17.12.2015 (the "Award"). The Appellants assailed the Award by filing the Reference averring therein that they received inadequate compensation under protest. The Property was acquired without notice to the Appellants and the Award was rendered without hearing their objections thereon. The District Price Assessment Committee (the "DPAC") prepared an erroneous report regarding the value of the Property without physical verification and examining sale Mutations of concerned and adjoining Revenue Estates to ascertain its market and potential value. The Property was erroneously categorized as purely agricultural, whereas, in essence it was commercial and residential in nature being situated on both sides of Khan Bela Malkani Road and close proximity to two cities. The location was so perfect that the NHA had selected the Property to establish its toll collection area. Important Government and private installations were present nearby the Property including Government College, Rest House of Irrigation Department, Malkani City Petrol Pump and many residential colonies. The aforesaid features were not taken into account which clearly demonstrate that the Property had suitability and potential for multiple commercial ventures. As such, the Board of Revenue endorsed the recommendations of the DPAC in a mechanical manner without conscious and judicious application of mind. Consequently, the Award was arbitrary, unilateral and confiscatory rendered in complete oblivion to the peculiar location and special features inextricably linked to the Property resulting in extremely low compensation. As such, the market value and potential value was determined without adopting due process of law. Besides, it was also contended that the Appellants had also not been compensated with respect to the standing sugarcane crop on the Property. Accordingly, the Appellants claimed fair and adequate price of the Property to the tune of Rs. 1,000,000/- per Marla coupled with the price of standing crop of sugarcane with compound interest @ 8% and compulsory acquisition charges @ 15% from the date of the Notification till its payment.

2. Conversely, the NHA controverted the Reference on both legal and factual plane. It was asserted that the Reference was liable to be rejected under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (the "C.P.C.") being barred by time. It was contended that the entire proceedings of acquisition culminating into pronouncement of the Award were conducted in accordance with the provisions of the Act. The Appellants were associated with the proceedings from its very inception. Adequate compensation was determined by the DPAC and endorsed by the Board of Revenue, Punjab. The Appellants have received their due compensation without protest and as such, are estopped from their words and conduct to question the quantum of compensation awarded in the Award through the Reference which is liable to be dismissed.

3. The Referee Court out of the divergent pleadings of the parties, framed the following issues:

i) Whether the compensation assessed in the impugned Award, the subject matter of this Reference, is inadequate? If so, what is fair compensation of the acquired land for the Petitioners? OPA

ii) Whether the instant Reference under Section 18 of the Land Acquisition Act, 1894 is not maintainable in its present form and the same is liable to be dismissed? OPR

iii) Whether the instant Reference under Section 18 of the Land Acquisition Act, 1894 is badly time barred? OPR

iv) Whether the Petitioners have received the compensation without protest, hence, the instant Reference is liable to be dismissed? OPR

v) Whether the Petitioners have no cause of action and locus-standi to file the instant Reference? OPR

vi) Relief.

1. In order to establish their case, the Appellants produced two witnesses, AW-1 and AW-2. AW-1 was one of the Appellants who held special power of attorney on behalf of two other Appellants while AW-2 was the concerned Patwari of the Revenue Estate. The respective affidavits of the AW's were produced and exhibited. The Appellants also produced sale Mutations (Exhibits A-3 to A-5, A-7 to A-15 and A-18). The site plan of Revenue Estate, Shedani Sharif was exhibited as Exhibit A-6. The NHA, in rebuttal produced Naib Tehsildar as RW-1 and tendered documents including the Award, Report of the DPAC, the Notifications dated 28.05.2015 and 16.07.2015, sale Mutations (Exhibit R-9 to R-18) and Khasra Girdawari 2011 to 2015 (Exhibit R-19).

2. Learned counsel for the Appellants, inter alia, contended that average sale price of transactions taking place before publication of the Notification is merely one of the modes for ascertaining the market value and not an absolute yardstick to determine the amount of compensation; the potential value and status of land was required to be determined with reference to the possibility of development and improvement factors which were not given due consideration by the Referee Court; the principle, "gold for gold and not copper for gold" was violated; the test as to what the willing purchaser would have paid to the willing seller was not employed; the Property was possessed forcibly without due and adequate compensation in violation of the settled law with respect to compulsory acquisition by the State; the market value in the intervening period from the date of the Notification under Section 4 of the Act i.e. with effect from 19.07.2014 to the pronouncement of the Award dated 17.12.2015 was not taken into account; the devaluation of Pakistani Rupee was altogether ignored; oral evidence was given preference over documentary evidence against the express provisions of the Qanun-e-Shahadat Order, 1984; the NHA failed to justify the amount assessed in the Award by producing Mutations on the basis of which one year average price was calculated by the DPAC; the evidence on the basis of which the Land Acquisition Collector pronounced the Award escaped the notice of the Referee Court; the peculiar location of the Property having potential of conversion into residential and commercial property was not given due weight; the effect of existence of commercial properties within the close vicinity of the Property in terms of its potential value was not appreciated; irreparable loss was caused to the Appellants through the acquisition, whereby, the compact block of the Property had been divided into four parts; the observations of the Referee Court with reference to non-conversion of agriculture land into commercial was misplaced; the Referee Court erred by not awarding even average price of the Mutations tendered in evidence; compensation regarding destruction of standing sugarcane crops on the Property at the time of acquisition was declined despite evidence on record; documentary evidence tendered by the Appellants was sufficient to prove their stance; and accordingly, the Appellants were entitled to modification of the impugned Judgment and Decree by way of enhancement of compensation regarding the Property as prayed for in the Reference. Reliance was placed on cases titled, "Secretary Communication and Works Department Government of Balochistan and others v. Dad Bakhsh and another" (2013 CLC 343); "Sardar Muhammad Ashraf (deceased) through LRs. and others v. Government of N.W.F.P. (now KPK) through Collector and others" (2011 SCMR 1244); "Nisar Ahmad Sabri through L.Rs. and others v. Government of Punjab through Secretary, Labour Department and others" (2015 YLR 2095) and "Land Acquisition Collector, National Highway Authority, Lahore and another v. Javed Malik and others" (2009 SCMR 634).

3. Learned counsel for the NHA submitted that the Reference was barred by time in terms of Section 18(2)(a) of the Act and the Referee Court erred in rejecting the application under Order VII, Rule 11 of the C.P.C. since it was established that the Appellants were served with notice (Exhibit R-1) and they personally appeared in acquisition proceedings with reference to their objections. The Appellants failed to discharge the onus to prove issue No. 1 regarding award of inadequate compensation but the compensation was enhanced to an exorbitant rate without any lawful justification. The Award was rendered after physical inspection of the Property, examination of relevant revenue record and taking into account the nature, location and market value of the Property. The price was assessed by the DPAC and duly endorsed by the Board of Revenue. As such, the Award was passed strictly in accordance with the provisions of the Act. The maximum rate of compensation was awarded to the Appellants. The Trial Court did not appreciate that the Award was announced by the Land Acquisition Collector independently without any influence of the NHA. The project was for the welfare of the public and the Property was required in national interest. The Property was neither residential nor commercial in character which was admitted by the Appellants in their evidence as per the deposition of AW-1. The Referee Court declared its finding to this effect yet enhanced compensation without any cogent reasoning. The assessment of value of the Property in huge chunk i.e. measuring 39 Kanals and 15 Marlas could not be based on comparative price of sale transactions of land in small proportions since it is a universal phenomenon that small residential and commercial plots are much more valuable than that of agricultural land. Hence, enhancement of compensation by considering sale price of Mutations of 1, 2 or 3 Marlas was not relevant to determine the fair value of the Property. In contrast, Exhibit R-9 and R-10 indicate that agricultural land similarly placed was being sold in the year 2008-2009 for Rs. 300,000/- per Acre, approximately. Hence, the Trial Court was only required to consider the value of identical agricultural land regarding the relevant period since Rule 10(iii)(c) of the Punjab Land Acquisition Rules, 1983 binds the Trial Court to consider the prevailing average market price of similar kind and location of land during the period of twelve months preceding the date of publication of the Notification under Section 4 of the Act. Further, Section 28-A of the Act was not applicable in the Province of Punjab and 8% compound interest ought not to have been given from issuance of the Notification under Section 4 of the Act. Accordingly, sufficient documentary evidence tendered by the NHA was not evaluated by the Trial Court in its true perspective and there was no occasion to enhance the compensation of the Property after the Appellants received it without any objection. As such, the impugned Judgment and Decree was passed in an arbitrary manner without application of conscious and judicious mind which is liable to be set aside for misreading and non-reading of evidence on record. Reliance was placed on cases titled, "Lahore Ring Road Authority and others v. Mian Mumtaz Ahmad and others" (2021 CLC 178); "Muhammad Yaqoob through Legal Heirs v. Land Acquisition Collector (M-4) National Highway Authority and 4 others" (PLD 2021 Lahore 364); "Manzoor Hussain (deceased) through L.Rs. v. Misri Khan" (PLD 2020 SC 749); "Mian Ahmad Raza and 2 others v. Karim Bakhsh through L.Rs. and others" (2007 SCMR 1595); "Government of Sindh and 2 others v. Muhammad Usman and 2 others" (1984 CLC 3406); "Muhammad Akram and another v. Mst. Farida Bibi and others" (2007 SCMR 1719); "Muhammad Rafique Awan v. The Land Acquisition Collector, National Highway Authority and 4 others" (2021 MLD 766); "Dilawar Hussain and others v. Province of Sindh and others" (PLD 2016 SC 514); "Liyar Khan v. Land Acquisition Collector/A.C., Swabi" (2003 YLR 3287); "Khanma Bi and 9 others v. Collector Land Acquisition, Mangla Dam Raising Project, Mirpur and another" (2018 MLD 1764); "Land Acquisition Collector (M-1) National Highway Authority Islamabad and 4 others v. Zahir Shah and 5 others" (2016 YLR 2462); "Government of N.W.F.P. and others v. Akbar Shah and others" (2010 SCMR 1408); "National Highway Authority through Chairman and 2 others v. Bashir Ahmad and 2 others" (2018 CLC Note 63); "Kolkata Metropolitan Development Authority and another v. Gobinda Chandra Makal and another" (2012 SCMR 1201 [India]); "Civil Aviation Authority through Project Director and others v. Rab Nawaz and others" (2013 SCMR 1124); "Hyderabad Development Authority through M.D., Civic Centre, Hyderabad v. Abdul Majeed and others" (PLD 2002 SC 84); "Special Land Acquisition Officer v. Maharani Biswal and others" (2012 SCMR 1179 [India]); "Sh. Faqir Muhammad v. Land Acquisition Collector and others" (2011 MLD 1308); and "Abdul Ahad and 19 others v. Government of Balochistan through Secretary C &W and others" (2017 MLD 1276).

4. Arguments heard. Record perused.

5. The primary issue involved in these Appeals is confined to the determination of fair market and potential value of the Property. However, before proceeding further, it is pertinent to address issues Nos. 2 to 5 regarding maintainability of the Reference. Burden of proof regarding the said issues was placed upon the NHA. RW-1 appeared on behalf of the NHA and deposed that the Appellants were given prior notice in acquisition proceedings which was served upon one of the Appellants, hence, the Reference was barred by limitation. In rebuttal, AW-1 categorically stated that the Appellants were not given any notice and written objections were not sought from them. The Trial Court found that the Reference filed on 30.05.2016 was within the prescribed period of limitation of six months reckoned from the date of Award passed on 17.12.2015 in view the law laid down in case titled, "Anwar-ul-Haq Chaudhary v. District Officer (Revenue), Narowal and 4 others" (2017 CLC 66), wherein, it was held that once the Collector had made a Reference in terms of Section 18 of the Act, the Court would not be competent to go beyond the Reference to see as to whether the Reference was within the time prescribed in the proviso to Section 18 of the Act. Since Land Acquisition Collector sent the Reference to the Referee Court on 06.06.2016, therefore, the Trial Court concluded that the Reference was within time. Further, the notice (Exhibit R-1) was generalized in nature which did not depict the names of all the Appellants. The same was not confronted to the Appellants and as such, was not per se admissible. Even otherwise, the Trial Court has aptly relied upon the aforesaid Judgment to hold that the Reference was not barred by limitation and there is no occasion to take any exception thereto. Moreover, RW-1 in his examination-in-chief deposed that compensation was accepted without objection by the Appellants at the time of the Award but during cross-examination he candidly admitted that the words "under protest" are written on the affidavits of the Appellants regarding receiving of compensation. It was also admitted that the Appellants received the compensation after filing of the instant Reference under protest. In this respect, the Trial Court aptly relied upon the case titled, "Zardad Khan and others v. Government of N.W.F.P. and others" (1987 SCMR 1387) to conclude that the filing of the Reference itself would signify that receiving of compensation amount by the Appellants was 'under protest'. Accordingly, the issues Nos. 2 to 5 were rightly decided in favour of the Appellants and against the NHA.

6. Moving on to the pivotal issue of determination of adequate compensation, AW-1, an Appellant in his examination-in-chief fully corroborated the facts pleaded in the Reference. He deposed that the relevant revenue record and the sale Mutations were not taken into consideration. The concerned Patwari and other Revenue Officers were not heard. He exhibited and cited several sale Mutations to prove that the fixed amount of compensation in the Award bears no co-relation with the prevalent market value of the Property at the relevant time. The market price of the Property was Rs. 1,000,000/- per Marla, whereas, the same was determined only as Rs. 3,750/- per Marla. The pertinent facts and figures regarding the market and potential value of the Property as pleaded in the Reference were highlighted in terms of its location, compactness and existence of nearby commercial ventures to prove that the Appellants are entitled for enhancement of the price assessed. He further asserted that the Appellants were also entitled for compensation regarding price of their sugarcane crops @ Rs. 200/- per maund with average rate of cane crop @ 1000 maunds per Acre.

7. AW-2, the concerned Patwari of the Revenue Estate testified that he had seen the Property. He affirmed that the total land of the Khata No. 196 consisted of 584 Kanals and 10 Marlas which stretches from Malkani City up to Shedani City. Koreja Market is present in the concerned Khata. Prior to the initiation of China Pakistan Economic Corridor (CPEC), a road from Khan Bela to Malkani City was passing through the Property which was situated on both sides of the said road. He importantly testified that Malkani City and Shedani City are situated at 01 K.M. distance from the Property. Land adjacent to the Property was being used for commercial purposes as it was situated in Malkani and Shedani Sharif Cities. He also corroborated the pleadings of the Appellants with respect to the existence of Petrol Pump on the Khan Bela to Malkani Road and High School within a distance of 02 Squares from the said road. He submitted copies of relevant Mutations as well as site plan of the Property. He deposed that he was in possession of the departmental record which includes affidavits of the Appellants submitted before the Assistant Commissioner, Liaquatpur and stated that the Appellants received the compensation under protest.

8. On the other hand, RW-1, the Naib Tehsildar, Liaquatpur was produced by the NHA who stated that the Property was agricultural in nature. He primarily supported the version of the NHA and deposed that the acquisition of the Property was undertaken after giving prior notice and the Appellants were aware of the same. He stated that the Property was at a distance of 1½ K.M. from Shedani City. Neither any shop of the Appellants was available on the Property nor that of any other person in close proximity to the Property. The land of many other persons was also acquired but none of them filed any Reference. He testified that the price assessed by the DPAC duly approved by the Board of Revenue was adequate and fair. He exhibited documentary evidence on behalf of the NHA to substantiate market value of the Property at the relevant time.

9. The privilege to acquire, hold and dispose of the Property is a fundamental right guaranteed under Articles 23 and 24 by the Constitution of the Islamic Republic of Pakistan, 1973 (the "Constitution") which emphatically declares that no person shall be deprived from his property save in accordance with law and without adequate compensation. Section 23 of the Act spells out various factors to be considered for determining market and potential value of the Property. The Apex Court of the country in view of unflinching dictate of the Constitution that citizens subject to compulsory acquisition of their properties are adequately compensated has consistently endeavored to liberally interpret the provisions of the Act. The law is now well developed that adequate compensation is not merely restricted to market value at the relevant time but also includes future potential value of the Property. The escalation in price during the period consummated from the date of the Notification under Section 4 of the Act till the pronouncement of Award is also a relevant consideration. Even valuation of adjacent or nearby properties can be analyzed to reach a fair and just price. Reliance is placed on cases titled, "Province of Punjab through Collector, Attock v. Engr. Jamil Ahmad Malik and others" (2000 SCMR 870); "Land Acquisition Collector, G.S.C., N.T.D.C. (WAPDA), Lahore and another v. Mst. Surraya Mehmood Jan" (2015 SCMR 28); "Province of Punjab through Land Acquisition Collector and another v. Begum Aziza" (2014 SCMR 75); "Fazal Haq College through Vice-Chairman v. Said Rasan and others" (PLD 2003 Supreme Court 480) and "Province of Sindh through Collector of District Dadu and others v. Ramzan and others" (PLD 2004 SC 512).

10. Irrefutable evidence was available to establish that the Property was situated on both sides of Khan Bela to Malkani Road. Khan Bela and Malkani are towns of Tehsil Liaquatpur, District Rahim Yar Khan. The Property was located between two towns of Shedani and Malkani which are commercial and residential in character. Even the concerned Khata had a cluster of densely populated area with multiple Government and private ventures including Petrol pump, High School and Police Station Shedani. The Property was not more than 1½ K.M. from this point. The presence of emerging residential colonies was also established. Evidence on record unequivocally demonstrated that the Property though was being used for agricultural purposes yet had assumed all the characteristics and features of commercial or residential Property. The potential value of the Property was much more than being extracted at the time of acquisition on account of its peculiar location in terms of its presence on the road and its closeness to two cities. The mere fact that the Appellants had not converted the Property from agricultural to commercial status is an irrelevant consideration to determine the potential value of the Property. The Appellants were not required to do so and had every right to hold and enjoy the Property in the manner they so desire. The fact that most of the sale Mutations brought on record consisted of small portions of land manifestly demonstrates that land in the area was a precious and scarce commodity being located close to two cities. Therefore, such sale Mutations of small portions of land were not completely out of context and cannot be ignored altogether when transactions of bigger holdings were not available. This is especially so when the Property had the potential of conversion into smaller residential or commercial units as was evident from the fact of emerging residential colonies and existence of a host of commercial ventures in close vicinity of the Property. Moreover, it was an admitted fact that the Property was a sizable chunk and existed as a compact block before acquisition. It was established that the Property was divided into parts in consequence of acquisition, thereby, adversely affecting its value and impairing its future potential. Nevertheless, this particular negative impact on the Property may have been compensated or off-set to some extent on account of overall price escalation due to the project itself but the damage caused to the Property through acquisition was vividly evident. In view of the above, the elements of potential value as well as damage to the Property by virtue of acquisition were duly proved. Reliance is placed on cases titled, "Special Land Acquisition Officer and another v. M.K. Rafiq Saheb" (2012 SCMR 1140 [India]); "Air Weapon Complex through DG v. Muhammad Aslam and others" (2018 SCMR 779); and "Government of Pakistan through Military Estate Officer, Abbottabad and another v. Ghulam Murtaza and others" (2016 SCMR 1141).

11. In order to further appreciate the evidence on record and to determine fair market and potential value of the Property at the relevant time, it would be beneficial to list below the comparative prices of the properties as depicted from the Mutations exhibited by the parties:

MUTATIONS PRODUCED BY THE APPELLANTS

| | | | | | --- | --- | --- | --- | | Sr.No. | Exhitbit | Mutation No. | Khata No. | | 1 | A-3 | 4011 | 196 | | 2 | A-4 | 4030 | 196 | | 3 | A-5 | 4010 | 196 | | 4 | A-7 | 3844 | 196 | | 5 | A-8 | 3852 | 196 | | 6 | A-9 | 3907 | 196 | | 7 | A-10 | 3912 | 196 | | 8 | A-11 | 3921 | 196 | | 9 | A-12 | 3952 | 196 | | 10 | A-13 | 3884 | 308 | | 11 | A-14 | 3956 | 230 | | 12 | A-15 | 3843 | 196 |

| | | | | --- | --- | --- | | Date of Mutation | Transaction Area and Price | Rate / Marla in Rupees | | 24.12.2014 | 10 3/4 Marlas 300,000/- | 27,907 | | 30.01.2015 | 47 1/2 Marlas 2,000,000/- | 42,105 | | 24.12.2014 | 1 Marla 400,000/- | 400,000/- | | 26.01.2013 | 1 1/2 Marlas 100,000/- | 66,667/- | | 08.02.2013 | 12 Marlas 300,000/- | 25,000/- | | 02.12.2013 | 1 Marla 200,000/- | 200,000/- | | 02.12.2013 | 6 Marlas 100,000/- | 16,667/- | | 04.03.2014 | 4 Marlas 300,000/- | 75,000/- | | 08.04.2014 | 10 Marlas 200,000/- | 20,000/- | | 27.06.2013 | 10 Marlas 100,000/- | 10,000/- | | 08.04.2014 | 48 Marlas 6,100,000/.- | 127,083/- | | 26.01.2013 | 1 1/2 Marlas 100,000/- | 66,667/- |

Mutations Produced by the NHA

| | | | | | --- | --- | --- | --- | | Sr.No. | Exhitbit | Mutation No. | Khata No. | | 1 | R-9 | 3479 | 194 | | 2 | R-10 | 3536 | 194 | | 3 | R-11 | 3996 | 196 | | 4 | R-12 | 4006 | 230 | | 5 | R-13 | 4007 | 230 | | 6 | R-14 | 4050 | 102 | | 7 | R-15 | 4056 | 295 | | 8 | R-16 | 3920 | 196 | | 9 | R-17 | 4054 | 196 | | 10 | R-18 | 3959 | 308 |

| | | | | --- | --- | --- | | Date of Mutation | Transaction Area and Price | Rate / Marla in Rupees | | 10.07.2008 | 1360 Marlas 2,500,000/- | 1,838/- | | 17.07.2009 | 240 Marlas 200,000/- | 833/- | | 23.09.2014 | 2 Marlas 10,000/- | 5,000/- | | 24.12.2014 | 1 Marla 10,000/- | 10,000/- | | 24.12.2014 | 1 Marla 10,000/- | 10,000/- | | 24.03.2015 | 100 Marlas 150,000/- | 1500/- | | 24.03.2015 | 200 Marlas 400,000/- | 2000/- | | 25.03.2014 | 7 Marlas 30,000/- | 4,286/- |

2024 Y L R 1810

[Lahore (Bahawalpur Bench)]

Before Safdar Saleem Shahid, J

Muhammad Asghar---Appellant

Versus

Sikandar Mehmood Dai---Respondent

R.F.A. No. 207 of 2018, heard on 22nd February, 2023.

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

----O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque---Assertion of the plaintiff---Initial burden of proof---Shifting of onus of proof---Scope---Claim of the respondent/plaintiff was that lease agreement was executed between the parties as he (plaintiff) had delivered a trailer/vehicle on Theka/lease to the appellant/defendant and then after the rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the appellant/defendant and for payment of said amount he delivered a cheque to him (plaintiff)---Version of the appellant-defend ant was that neither he obtained trailer nor executed lease-agreement nor any amount was outstanding against him , instead there was another dispute between the parties for which he (defendant) lodged FIR against the respondent/plaintiff under the provisions of Punjab Prohibition of Private Money Lending Act, 2007 ---Appellant/ defendant assailed judgment decree passed against him by the Trial Court---Held, that in the plaint the respondent plaintiff had not mentioned the date, time and place when lease agreement was executed between the parties---Respondent/ plaintiff in his statement had also not disclosed the date, place and time when he approached the respondent/ plaintiff and demanded the outstanding amount---During cross-examination, the respondent/ plaintiff admitted that no lease agreement was written between the parties when he delivered a trailer on lease to defendant and there was no eye-witness of the said agreement---From the evidence it was clear that the respondent/ plaintiff had not been able to establish his claimed facts for which the appellant/defendant had delivered the cheque to him for payment---It was quite improbable that such a valuable trailer was given by the respondent/plaintiff to appellant without executing any written lease agreement---Witnesses of the cheque were not produced by the respondent/plaintiff before the Trial Court---Prima facie the evidence of respondent/plaintiff was not reliable, trustworthy and confidence inspiring because he was involved in an act against the provisions of the Punjab Prohibition of Private Money Lending Act, 2007, and the said fact was confirmed by him during his cross-examination that an FIR regarding private money lending was also registered against him--- Plaintiff was to discharge the initial burden of proving his case especially when the plaintiff had undertaken to prove that the negotiable instrument (cheque) had been duly executed for consideration---Issue had also been framed in the case, which had placed the onus in that behalf upon the respondent/plaintiff rather he himself led evidence to prove the payment of the money through two witnesses and his own statement, therefore, the respondent/plaintiff was precluded in law to urge in the present case/scenario that it was for the respondent to prove to the contrary---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed ---Appeal filed by the defendant was accepted accordingly.

Salar Abdul Rauf v. Mst. Barkat Bibi 1973 SCMR 332 ref.

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

----Art. 129(g)--- Civil Procedure Code (V of 1908 ), O. XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque ---Best witnesses, withholding of---Effect---In the plaint the respondent/plaintiff took stance that a cheque was delivered to the respondent/plaintiff in presence of two witnesses but, admittedly, they (said witnesses) were not produced before the Trial Court at the time of trial---Thus, best evidence had been withheld by the respondent/plaintiff, thus, an adverse inference under illustration (g) to Art. 129 of the Qanun-e-Shahadat 1984, could easily be drawn that in case they were produced they would not have supported plaintiff's version---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed ---Appeal filed by the defendant was accepted accordingly.

(c) Negotiable Instruments Act (XXVI of 1881)---

----S. 118---Civil Procedure Code ( V of 1908 ), O . XXXVII, Rr. 1 & 2---Suit for recovery on the basis of cheque---Negotiable instrument---Presumption about drawing consideration, etc.---Proof in negativity---Scope---Expression "until thecontrary is proved"---Effect---Section 118 of the Negotiable Instruments Act, 1881, does not envisage a conclusive presumption about drawing consideration etc. of the negotiable instrument, rather, without any fear ofcontradiction, it can be held to be rebuttable in nature and this is soclear and obvious from the expression used in the said S. i.e. "until the contrary is proved" ---Presumption attached with negotiable instruments is always rebuttable and if a plaintiff fails to produce creditworthy evidence then he cannot be allowed to turn around and invoke the presumption contained under S.118 of the Negotiable Instruments Act, 1881--- In the present matter , the respondent/plaintiff had failed to discharge the initial burden and therefore had not been able to shift the onus, in circumstances---Presumption contained in Art. 118 stood rebutted since the court had to act on the basis of preponderance of evidence---Respondent/plaintiff failed to prove his case as setup in the plaint and the Trial Court failed to appreciate the evidence on record and committed an error while passing the impugned judgment and decree --- High Court set-aside impugned judgment and decree passed by the Trial Court and resultantly, the suit was dismissed---Appeal filed by the defendant was accepted accordingly.

Ghulam Murtaza v. Muhammad Rafiq 2020 CLD 265 and Asif Ali and 6-others v. Saeed Muhammad 2009 CLD 1301 ref.

Hafiz Rehman Aziz for Appellant.

Muhammad Ismail Makki for Respondent.

Date of hearing: 22nd February, 2023.

Judgment

Safdar Saleem Shahid, J.---Against the judgment and decree dated 31.10.2018 passed by learned Addl. District Judge Sadiq Abad, whereby suit filed by respondent/plaintiff for recovery of 34,50,000/- on the basis of cheque under order XXXVII Rules 1, 2, C.P.C. was decreed, instant appeal has been preferred.

1. The brief facts of the case are that respondent/plaintiff filed the aforesaid suit against the appellant/defendant on the basis of cheque No.CD No.0041203 pertaining to Bank Al Falah Limited Main K.L.P Road Sadiqabad issued by the appellant/defendant with the assertion that there was cordial business relations between the parties inter-se; that in the month of April 2013, the plaintiff/respondent delivered a trailer to appellant/defendant on 'Theka'/lease and appellant/defendant also kept on purchasing the tyres from the plaintiff/ respondent. During rendition of accounts in the month of April 2016 an amount of Rs. 34,50,000/- was outstanding against the appellant/defendant and in order to make the payment of aforesaid amount he (defendant) issued cheque amounting to Rs. 34,50,000/- in favour of the plaintiff/respondent in presence of witnesses namely Mohsin Ishaq and Sajid; that on 16.05.2016 the respondent/ plaintiff presented said cheque in the bank which was dishonoured; that the appellant/defendant is bound to pay the said amount to him; that the appellant/defendant has been asked repeatedly to pay his amount but he refused to do so.

2. The appellant/defendant moved an application for leave to appear and defend the suit which was allowed by the learned trial court vide order dated 26.10.2017. The appellant/defendant contested the suit by filing written statement alleging therein that nothing was outstanding against him. Out of divergent pleadings of the parties, following issues were framed:-

ISSUES:

1. Whether the plaintiff is entitled to recover Rs. 34,50,000/ on the basis of cheque No.CS-0041203 dated 20.04.2016 of Bank Al falah Ltd KLP Road, Sadiqabad as prayed ? OPP.

2. Whether the impugned cheque is forged and fictitious? OPD.

3. Whether the suit of the plaintiff is liable to be dismissed under order VII Rule 11 of C.P.C? OPD.

4. Whether the suit of the plaintiff is false, frivolous and same is liable to be dismissed. In case of dismissal of suit, defendant is entitled to receive special cost from the plaintiff.

5. Relief.

6. The plaintiff examined two witnesses including his statement as PW-1 and also tendered on record the original cheque Exh.P-1, Memo. thereof as Exh.P2 and attested copy of registration book as Exh.P-3. In rebuttal the plaintiff also produced one Shamasul-ul-Rehman as P.W-3. The plaintiff/respondent (P.W-2) in his examination-in-chief deposed that he runs the business of tyres and on account of business relationship he delivered a trailer to defendant on lease and besides this he had also sold the tyres to him(defendant). It was further alleged by the plaintiff/ P.W.2 that during rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the defendant and in order to make the payment of said amount he (defendant) issued cheque ( Exh. P.1) in his favour but the said cheque was dishonoured on its presentation in the bank . He further deposed that one criminal case was registered against him at the instance of defendant/appellant. Imran Bashir D.M.S Al-falah Islamic Bank appeared in the witness as P. W-1 who deposed that disputed cheque was presented in his bank which dishonoured due to insufficient fund. On the other hand, the appellant/ defendant/DW-1 deposed that he runs a workshop and that neither he obtained any Trailer on lease from the plaintiff nor purchased any tyres from him. He further deposed that he had not delivered the disputed cheque to plaintiff against the outstanding amount. It was further contended by him that in fact he obtained an amount of Rs. 5,90,000/ as a loan from the respondent/ plaintiff for purchase of house from one Mohsin son of Atta Ullah and in this regard he delivered a blank cheque as well as other cheques belonging to his brother Muhammad Ramzan and his nephew Adnan Saleem and Muhammad Imran to respondent/plaintiff as a security/ guarantee. It was further contended by him that he had paid excess amount i.e Rs. 9,90,000/- including the interest to the plaintiff but he did not return his surety cheques rather used the same against the appellant/defendant on the basis of mala fides. It was further contended by him that the disputed cheque and other cheques belonging to his family were delivered to plaintiff in presence of witnesses namely Shahid Mehmood and Amir Hussain and the plaintiff did not lodge any criminal case regarding the dishonouring of cheque, rather, he lodged a criminal case against the plaintiff. DW2 and D.W-3 also deposed in line with DW-1. In documentary evidence he produced the certified copy of challan/report under section 173, C.r.P.C and interim orders in case FIR No.329 of 2017 under section 3/4 of Money Lending Act Police Station City Sadiq abad District Rahim Yar Khan as Exh. D-1

7. Learned counsel for the appellant/defendant contended that appellant neither obtained any amount from the respondent nor issued the cheque in question in his favour; that in fact the appellant obtained an amount of Rs. 5,90,000/ as a loan from the respondent/ plaintiff for purchase of house from one Mohsin son of Atta Ullah and in this regard he delivered a blank cheque as well as other cheques belonging to his brother Muhammad Ramzan and his nephew Adnan Saleem and Muhammad Imran to respondent as a security/ guarantee; that the appellant/ defendant had paid excess amount i.e Rs. 9,90,000/- including the interest to the plaintiff but he did not return his surety cheques rather used the same against the appellant/defendant on the basis of mala fides; that the respondent is notorious blackmailer and usurer person and this fact has been admitted by the respondent in his cross-examination; that during cross-examination the respondent/PW-2 admitted that a criminal case FIR No.329 of 2017 under sections 3/4 of Money Lending Act was registered against him at Police Station City Sadiqabad District Rahim Yar Khan at the instance of defendant/appellant; that marginal witnesses in whose presence the disputed cheque was allegedly delivered by the appellant to the plaintiff were not produced before the learned trial court; that neither the respondent nor the P.Ws had mentioned any specific date in the plaint or in evidence as to when the Trailer was delivered to the appellant/defendant on lease and this regard any rendition of accounts took place between the parties; that the respondent has failed to produce cogent evidence in order to establish his financial position and capacity that he was running the business of tyres and Trailer on `Theka/lease to different persons; that learned trial court while passing the impugned judgment and decree did not consider the evidence available on record in its true perspective and passed the impugned judgment without discussing the material available on record which is not sustainable in the eye of law. Thus, it is submitted that by accepting instant appeal impugned judgment and decree passed by learned trial court is liable to be set aside and suit of the respondent be dismissed.

8. On the other hand, learned counsel for respondent defends the impugned judgment and decree dated 31.10.2018 and submits that learned counsel for appellant has failed to point out any illegality or material irregularity in the same, which is liable to be upheld; that the plaintiff/ respondent delivered the Trailer to the defendant on 'Theka'/lease and that the defendant also kept on purchasing the tyres from the plaintiff/ respondent and during rendition of accounts an amount of Rs. 34,50,000/- was outstanding against him (defendant) for which the defendant issued cheque which was dishonoured on its presentation in the bank; that execution of cheque Exh.P-1 has not been denied by the appellant; that the witnesses of the respondent/plaintiff have fully supported the version of the respondent; that the respondent/plaintiff by producing trust worthy and confidence inspiring evidence has proved its case against the appellant and learned trial court has decreed the suit in accordance with law after taking into consideration the evidence lead by the parties. Thus, it is submitted that instant appeal is liable to be dismissed.

9. Arguments heard. Record perused.

10. In the plaint the respondent/ plaintiff has not mentioned the date, time and place when lease agreement was executed between the parties in order to establish that the plaintiff had delivered a Trailer/vehicle on Theka/lease to the appellant/defendant and in this regard rendition of accounts had taken place between the parties. In the plaint the plaintiff/ respondent took stance that the after rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the appellant/defendant and for payment of said amount the appellant/defendant delivered a cheque to plaintiff/ respondent in presence of witnesses namely Mohsin Ishaq and Sajid but admittedly they were not produced before the learned trial court at the time of trial, in this way, best evidence has been withheld by the respondent/plaintiff, thus, an adverse inference under illustration (g) to Article 129 of the Qanun-e-Shahadat Order, 1984 could easily be drawn that in case they were produced they would not have supported plaintiff's version. The plaintiff/respondent in his statement has also not disclosed the date, place and time when he approached the plaintiff/respondent and demanded the outstanding amount. During cross-examination, the plaintiff/respondent admitted that when he delivered a trailer on 'Theka'/lease' to defendant no lease agreement was written between the parties and there was no eye-witness of the said agreement. The respondent/plaintiff while appearing as P.W-2 before the learned trial court made improvement by contending that he had delivered the trailer to defendant/appellant on lease/Theka in the month of April, 2012. During cross-examination the plaintiff/P.W2 also admitted that he does not know how many pair of tyres were sold by him to defendant/appellant and what was the actual price of said tyres. It was further admitted by P.W-2/plaintiff, that during rendition of accounts no witness was present and no receipt was executed qua the rendition of accounts. The plaintiff/P.W-2 in his cross-examination also admitted that after April, 2013 he had received an amount of Rs. 9,90,000/- in cash from the defendant/appellant. The plaintiff during his cross-examination also stated that although he sold some tyres to defendant but he did not maintain the record in this regard. The plaintiff in his evidence also admitted that a criminal case FIR No. 329 of 2017 under sections 3/4 of the Punjab Prohibition of Private Money Lending Act 2007 was registered against him at Police Station City Sadiqabad at the instance of the defendant/appellant. It was also contended by him that he has no cash book or maintains the record regarding his business.

11. From the evidence it is crystal clear that the respondent has not been able to establish that in the year 2013 he had delivered a trailer to the defendant on lease and during rendition of accounts an amount of Rs. 34,50,000/- was outstanding against the defendant and in this regard the appellant /defendant had delivered the cheque to him for payment of said amount. It is quite improbable that such a valuable trailer was given by the respondent/plaintiff to appellant without executing any written lease agreement. The witnesses of the cheque were not produced by the plaintiff before the learned trial court. Prima facie the evidence of respondent/plaintiff (P.W-2) is not reliable, trustworthy and confidence inspiring because he is involved in Punjab Prohibition of Private Money Lending Act, 2007 and this fact was confirmed by him during his cross-examination that case FIR No.329 of 2017 regarding Money Lending was also registered against him.

2024 Y L R 1833

[Lahore]

Before Ch. Muhammad Iqbal, J

Atif Khan---Petitioner

Versus

Merja Din and others---Respondents

Civil Revision No. 17 of 2012, heard on 7th May, 2024.

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

----Arts. 17 & 79---Specific Relief Act (I of 1877) Ss. 12 & 54---Suit for specific performance and perpetual injunction---Oral---agreement-to-sell---Proof---Two witnesses, non-production of---Effect---Claim of the plaintiff in the suit was that his father purchased suit-land on the basis of oral agreement to sell from the defendants , which was concurrently dismissed---Validity---As per contents of the plaint though the petitioner claimed that his father purchased the suit land who had died, but his mother and two sisters neither filed suit nor joined the petitioner as plaintiff in the appeal---Petitioner / plaintiff , regarding alleged oral agreement made by his father , did not disclose the time, place as well as the offer and acceptance of the transaction, which were mandatory ingredients for an oral sale agreement---Moreover, it was mandatory for the petitioner/plaintiff to prove the oral agreement to sell through producing the witnesses of the agreement as well as that of payment of consideration, but he did not produce one of the witnesses and even no explanation had been furnished in said regard, thus the petitioner had failed to prove the oral agreement to sell---As per Arts. 17 and 79 of the Qanun-e-Shahadat 1984, it was the duty of the petitioner/plaintiff to prove the alleged oral agreement by producing both the witnesses but in the present case admittedly one witness of the alleged agreement to sell was not produced in evidence and even no convincing reasons had been expounded in said regard, which was a blatant non-compliance of the mandatory provisions of law, thus, the petitioner / plaintiff had failed to prove the execution of the alleged agreement to sell as per law---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Revision filed by the plaintiff was dismissed, in circumstances .

Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others PLD 2011 SC 241; Farzand Ali and another v. Khuda Bakhsh and others PLD 2015 SC 187 and Farid Bakhsh v. Jind Wadda and others 2015 SCMR 1044 ref.

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

----Art. 113---Specific Relief Act (I of 1877), Ss. 12 & 54---Suit for specific performance and perpetual injunction---Limitation---Time barred suit---Claim of the plaintiff in the suit was that his father purchased suit-land on the basis of oral agreement to sell from the defendants , which was concurrently dismissed---Validity---Petitioner / plaintiff in his plaint stated that oral agreement was executed on 31.05.1985 and his father before his death on 19.07.1989 made request to the respondent/defendant No.1 to execute sale- deed but he did not execute sale deed---Despite the fact that respondent /defendant No.1 had become owner of the suit land through decree dated 21.04.1979, the petitioner filed suit for possession through specific performance of oral agreement to sell on 04.08.2003 after 18-years, 02-months and 04-days---Under Art. 113 of the Limitation Act, 1908, the prescribed period of limitation for a suit of specific performance of an agreement to sell was only three years---Suit of the petitioners was barred by time by about 18 years and no explanation had been furnished in said regard---Suitor has to explain the reason for delay of each and every day, which were conspicuously missing in the present case---Thus, the suit of the plaintiff was blatantly time barred---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Revision filed by the plaintiff was dismissed, in circumstances.

Muhammad Sadiq and others v. Muhammad Mansha and others PLD 2018 SC 692 ref.

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

----Ss. 22 & 12---Suit for specific performance---Discretionary powers of the Court---Principle of equity---Scope---Under S. 22 of the Specific Relief Act, 1877, the grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principle of equity even if the suitor has proved the case.

Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 and Muhammad Miskeen v. District Judge Attock and others 2020 SCMR 406 ref.

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

----Ss. 12 & 54---Civil Procedure Code (V of 1908) , S. 115---Suit for specific performance and perpetual injunction---Concurrent findings---Revisional powers of the Court Scope---Claim of the plaintiff in the suit was that his father purchased suit-land on the basis of oral agreement to sell from the defendants , which was concurrently dismissed---Validity---Petitioner/ plaintiff had neither pointed out any illegality or material irregularity in the impugned judgments and decrees passed by both the Courts below nor identified any jurisdictional defect---Concurrent findings of fact were against the petitioner which did not call for any interference by the High Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Revision filed by the plaintiff was dismissed, in circumstances.

Mst. Zaitoon Begum v. Nazar Hussain and another 2014 SCMR 1469 ref.

Muhammad Younas Bhullar for the Petitioner.

Rana Shahbaz Ali Khan for Respondents.

Date of hearing: 7th May 2024.

Judgment

Ch. Muhammad Iqbal, J.---Through this Civil Revision, the petitioner has challenged the validity of judgment and decree dated 04.05.2010 passed by the learned Civil Judge, Daska who dismissed the suit for specific performance of contract along with permanent injunction filed by the petitioner and also assailed the judgment and decree dated 04.10.2011 passed by the learned Addl. District Judge, Daska who dismissed the appeal of the petitioner.

1. Brief facts of the case are that the petitioner/plaintiff has filed a suit for possession through specific performance on the basis of oral agreement to sell along with permanent injunction against the respondents/defendants with the contention that Muhammad Anwar Khan, father of the petitioner/plaintiff purchased land measuring 13-Kanals situated in Mouza Bharthanwala, Tehsil Daska, District Sialkot fully described in Para No. 1 of the plaint from the respondent/defendants on the basis of oral agreement to sell dated 31.05.1985 against total paid consideration of Rs.24,500/- in the presence of witnesses namely Talib Hussain son of Allah Bakhsh resident of Gujjar Kay, Tehsil Daska and Muhammad Aslam son of Ghulam Rasool resident of Dhulleke Goraya, Tehsil Daska. That the father of the petitioner/plaintiff made request to respondent/defendant No.1 to execute the sale deed but he did not do so. As the petitioner's father had died on 19.07.1989, now the petitioner filed present suit. Respondent/defendant No.1 filed contesting written statement and denied the execution of oral agreement to sell as well as receiving any consideration contending therein that father of the plaintiff was illegal occupant upon the suit land and he was murdered on 19.07.1989. Respondents/defendants Nos.2 to 4 (mother and sisters of the petitioner) filed conceding written statement. From the divergent pleadings of the parties, issues were framed and evidence was recorded. The trial court vide judgment and decree dated 04.05.2010 dismissed the suit of the petitioner. Against the said decision, the appeal of the petitioner was also dismissed by the appellate court vide judgment and decree dated 04.10.2011. Hence, this civil revision.

2. Arguments heard. Record perused.

3. As per contents of the plaint the petitioner claims that his father purchased the suit land and he had died but his mother and two sisters (defendants Nos. 2 to 4) neither filed suit nor joined the petitioner as plaintiffs in the suit as well as in the appeal.

In Para No.1 of the plaint the petitioner stated that his father orally purchased the suit land on 31.05.1985 against consideration of Rs.24,500/- from respondent/defendant No.1 in the presence of witnesses namely Talib Hussain son of Allah Bakhsh resident of Gujjar Kay, Tehsil Daska and Muhammad Aslam son of Ghulam Rasool resident of Dhulleke Goraya, Tehsil Daska but he did not disclose the time, place as well as the offer and acceptance of the transaction, which are mandatory ingredients for an oral sale agreement. Moreover, it is mandatory for the petitioner/plaintiff to prove the oral agreement to sell through producing the witnesses of the agreement as well as that of payment of consideration, but he did not produce one witness namely Muhammad Aslam son of Ghulam Rasool and even no explanation has been furnished in this regard, thus the petitioner has failed to prove the oral agreement to sell. As per Article 17 read with Article 79 of the Qanun-e-Shahadat Order, 1984, it is duty of the petitioner-plaintiff, to prove the alleged oral agreement to sell by producing both the witnesses but here in this case adittedly one witness of the alleged agreement to sell was not produced in evidence and even no convicing reasons have been expounded in this regard, which is a blatant non-compliance of the above mandatory provision of law and same leads to conveniently hold that the petitioner/plaintiff has failed to prove the execution of the alleged agreement to sell as per law. The non-production of the required number of witnesses in evidence is blatant non-compliance of the aforesaid mandatory provisions of law which impress fatal impact on the case of the petitioner. Reliance is placed on the cases cited as Hafiz Tassaduq Hussain v. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand Ali and another v. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh v. Jind Wadda and others (2015 SCMR 1044).

1. Moreover, the petitioner in his plaint stated that oral agreement was executed on 31.05.1985 and his father before his death, on 19.07.1989 made request to respondent/defendant No.1 to execute the sale deed but defendant did not execute sale deed despite the fact that respondent/defendant No.1 had become owner of the suit land through decree dated 21.04.1979 whereas the petitioner filed suit for possession through specific performance of oral agreement to sell on 04.08.2003 after 18-years, 02-months and 04-days whereas under Article 113 of the Limitation Act, 1908, the prescribed period of limitation for a suit of specific performance of an agreement to sell is only three years. The said provision of law is reproduced as under:

| | | | | --- | --- | --- | | Description of suit property | Period of limitation | Time for which period begins to run | | 113 For Specific performance a contract | Three years | The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. |

Further with regard to the question of limitation of suit for specific performance, under Article 113 of the Act ibid, the Hon'ble Supreme Court of Pakistan in its judgment titled as "Muhammad Sadiq and others v. Muhammad Mansha and others" (PLD 2018 SC 692) held as under:-

"Therefore in the ordinary course it is the first limb of Article 113 of the First Schedule to the Limitation Act, 1908 that would have applied and the suit would have become barred by limitation after 28.5.1986. However, the learned High Court took the view that since the property was mortgaged limitation did not begin to run till such time as it was redeemed which came about around 28.11.1988. On such basis it was held that the suit was within time. In our view, with respect, the reasoning and the conclusion of the learned High Court proceeded on a fundamental misconception of the law. As is well known, when a property is mortgaged by one person to another the interest that is left in the hands of the mortgager is called the equity of redemption. Now, the equity of redemption is itself immovable property which can be dealt with as such by the mortgager, whether by way of sale, subsequent mortgage, gift or transfer but subject always to the rights and interests of the mortgagee. In other words the existence of a mortgage on immoveable property does not in or itself constitute a bar to subsequent dealing by the mortgager as regards the equity of redemption."

As the suit of the petitioners was barred by time almost about 18 years and no explanation has been furnished in this regard whereas the suitor has to explain the reason for delay of each and every day which are conspicuously missing in this case. Thus there is no hesitation to hold that the very suit of the plaintiff was blatantly time barred.

1. Even otherwise, under Section 22 of the Specific Relief Act, 1877 the grant of decree for specific performance comes within the sole discretionary power of the court which can refuse to grant the relief on the principle of equity even if the suitor has proved the case, as settled by the Hon'ble Supreme Court of Pakistan in its judgment titled as Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524) wherein it is held as under:

2024 Y L R 1854

[Lahore]

Before Farooq Haider, J

Muhammad Behroz Khan---Appellant

Versus

The State through Prosecutor General Punjab and another---Respondents

Crl. Misc. No. 53623-B of 2023, decided on 18th April, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Bail, refusal of---Accused was charged for committing murder of the brother of complainant by firing---Although petitioner was not nominated in the FIR, however, after coming to know certain facts regarding the occurrence through witnesses, complainant nominated petitioner along with co-accused through supplementary statement---Both the witnesses also recorded their statements under Section 161, Cr.P.C in support of the information provided by them to the complainant---So, it could not be said that such supplementary statement in the case was without any source---Perusal of copy of postmortem examination report revealed that death of deceased occurred due to receipt of firearm injuries on the head---Empty cartridge of .30-bore pistol was found near dead body at the place of occurrence during spot inspection and was secured by the Investigating Officer through recovery memo, which was received by Forensic Science Agency on 11.02.2022 i.e. before arrest of present petitioner because he was arrested on 14.02.2022---As per case of prosecution, during investigation present petitioner made disclosure regarding pistol and in furtherance of said disclosure, he also got recovered pistol .30-bore on 20.02.2022 which was received by Forensic Science Agency on 23.02.2022 for comparison with empty cartridge which was received on 11.02.2022---As per report of Forensic Science Agency, empty cartridge case was identified as having been fired from said pistol---Hence, said repeat had prima facie attained character of relevant fact constituting incriminating material in the case---Punishment of the alleged offence did fall in the ambit of prohibition contained in Section 497, Cr.P.C.---Trial had already commenced in the case---Role of causing firearm injury was not attributed to co-accused who got bail and nothing was available on the record to corroborate statements of witnesses i.e. ocular version against him---Case of present petitioner was not at par with said co-accused, therefore, principle of consistency did not apply to the case of present petitioner---Petition was dismissed, in circumstances.

Nazir Shehzad and another v. The State 2009 SCMR 1440 and Allah Ditta v. The State 2001 MLD 1123 rel.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Observations made in bail orders are just tentative in nature, strictly confined to the disposal of bail petition and do not have any bearing upon trial of the case.

Naveed Anayat Malik and Tayyab Naveed Malik for the Petitioner.

Rana Muhammad Shafique, Deputy Prosecutor General for the State along with iftikhar, S.I and record of the case.

Nemo for the Complainant (instant petition has been repeatedly called, however, no one has turned up on behalf of the complainant although name of learned counsel for the complainant reflects in the cause list issued for today as apprised by Additional Registrar (Court), therefore, instant petition is being decided after hearing learned counsel for the petitioner, learned Deputy Prosecutor General and going through available record.

order

Farooq Haider. J,---Through instant petition, Muhammad Behroz Khan (petitioner/accused] seeks post-arrest bail in case arising out of FIR No. 418/2022 dated: 08.02.2022 registered under Sections 302, 34, P.P.C at Police Station: Shadbagh, District: Lahore.

1. After hearing learned counsel for the petitioner, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly, as per Crime Report (FIR) got registered by Naveed Ahmad (complainant), on 08.02.2022 at about 09:00 p.m., complainant, Adeel Ahmad (brother of the complainant and now deceased of the case) and his mother were present in the home, meanwhile Adeel Ahmad received call of his friend namely Usman and he (Adeel Ahmad) told that he is going to his friend namely Usman. On delay of his arrival to the home, mother made call on the mobile phone of Adeel Ahmad which was received by one unknown person who told that his brother has met an accident, mother of complainant told said fact in worried condition to the complainant who reached at the spot and came to known that some unknown for unknown reasons fired shot with pistol at forehead of his brother who succumbed to the injuries. Learned Deputy Prosecutor General under instructions of Police Officer (present before the Court) and after himself going through available record apprises that on 09.02.2022, Naveed Ahmad (complainant] nominated Muhammad Usman (co-accused) and Muhammad Behroz (present petitioner) as accused in this case through supplementary (statement and briefly as per said supplementary statement after 2/3 hours of registration of aforementioned case, Muhammad Mohsin and Muhammad Ramzan told to the complainant that his brother namely Adeel Ahmad has been murdered by Muhammad Behroz (present petitioner) and Muhammad Usman (co-accused) and they have been seen by Muhammad Mohsin and Muhammad Ramzan while fleeing away after committing the murder; Adeel Ahmad was running business of iron in Misri Shah whose friend Muhammad Usman was running mobile shop in Chowk Nakhuda, Muhammad Usman had been taking money as loan from Adeel Ahmad, brother of the complainant namely Adeel Ahmad demanded his said amount from Muhammad Usman and on the pretext of paying back said amount, Muhammad Usman made call to Adeel Ahmad and said that he is in Elahi Park whereas his cousin namely Behroz Khan is present in Chowk Nakhuda and asked him to come after boarding Muhammad Behroz on motocycle, when brother of the complainant Adeel Ahmad after boarding cousin of Muhammad Usman namely Behroz Khan reached to Usman at Elahi Park then Behroz Khan fired shot at front of forehead of Adeel and boarding on rear seat of motorcycle with Usman fled away, who while fleeing away were seen by Muhammad Mohsin and Muhammad Ramzan; also adds that Muhammad Ramzan (aforementioned witness) also got recorded his statement under Section 161, Cr.P.C. while mentioning therein that he along with Muhammad Mohsin (aforementioned witness) were coming to their homes while walking on foot, when they reached at corner of Elahi Park near Tubewell of WASA then they heard report of fire () and saw a motorcycle bearing No. AJR-4605, friend of Adeel namely Usman along with his friend Behroz (present petitioner) were going, Behroz (present petitioner) was having pistol in his hand whereas Usman was driving the motorcycle, they (both witnesses) went to their homes, at about 12:30 a.m. (night) Muhammad Mohsin intimated Muhammad Ramzan that he has received phone call of Naveed (complainant) that Adeel has been murdered in Elahi Park, he (Muhammad Ramzan) asked Muhammad Mohsin (aforementioned witness) to come at the spot and he (Muhammad Ramzan) also reached at the spot, he (Muhammad Ramzan) and Muhammad Mohsin (aforementioned witness) have seen with their own eyes Muhammad Behroz (present petitioner) going with Usman (co-accused) sitting on rear seat of motorcycle after committing murder of Adeel Ahmad while making firearm shot at him. This entire fact was told by him to Naveed (complainant). Muhammad Mohsin (witness) also narrated same facts in his statement recorded under Section 161 Cr.P.C.

Although petitioner is not nominated in the FIR, however, after coming to know certain facts regarding the occurrence through Muhammad Mohsin and Muhammad Ramzan (witnesses, mentioned above), complainant nominated present petitioner along with Muhammad Usman (co-accused) through supplementary statement and Muhammad Mohsin as well as Muhammad Ramzan (both witnesses) also got recorded their statements under Section: 161, Cr.P.C in support of said information provided by them to the complainant (as detailed above). So, it cannot be said that this supplementary statement in the case was without any source; furthermore, Muhammad Afzal was also got examined during investigation through his statement under Section 161, Cr.P.C. with respect to receiving call of the mother of deceased on mobile phone and intimating her as well as coming of the complainant at the place of occurrence. Perusal of copy of postmortem examination report (available on the record) reveals that death of deceased occurred due to receipt of firearm injuries on the head.

Empty cartridge of .30-bore pistol was found near dead body at the place of occurrence during spot inspection and secured by the Investigating Officer through recovery memo. which was received by Punjab Forensic Science Agency, Lahore on 11.02.2022 i.e., before arrest of present petitioner because he was arrested on 14.02.2022. As per case of prosecution, during investigation present petitioner made disclosure regarding pistol and in furtherance of said disclosure, he also got recovered pistol .30-bore on 20.02.2022 which was received by Punjab Forensic Science Agency, Lahore on 23.02.2022 for the comparison of aforementioned empty cartridge which was received on 11.02.2022 and as per report of Punjab Forensic Science Agency, Lahore (copy whereof is available on the record brought by Investigating Officer of the case), aforementioned empty cartridge case was identified as having been fired in said pistol; relevant portion of the same is hereby reproduced:-

"Details of Results and Conclusions Based on Test(s) Performed:

The item P1 pistol was examined and found to be in mechanical operating condition.

The item C1 cartridge case was identified as having been fired in the item P1 pistol."

It is trite law that confession made by accused during custody of police is inadmissible but it is equally settled principle of law that if during investigation (custody of police), accused provides information through disclosure and then in furtherance of said disclosure gets recovered any fact which is perceivable by five sense i.e., having shape, colour and volume, etc., then same is admissible in evidence.

In this case, during investigation, petitioner provided information through disclosure about the pistol and in the light of said disclosure, he got recovered said pistol which was definitely having a shape, colour and volume perceivable by five senses as defined under Article: 2(1)(d) of the Qanun-e-Shahadat Order, 1984, which is hereby reproduced:-

"2(1)(d) "fact" includes.

(i) anything, state of things, or relation of things capable of being perceived by the senses; and

(ii) any mental condition of which any person is conscious."

therefore, said information relating to the discovered fact may be proved. When empty cartridge secured from the place of occurrence during spot inspection has been found as fired by aforementioned pistol then use of this pistol for making fire shot has been prima facie established and since said pistol has been got recovered at the pointing out of present petitioner in the light of information received from him through his disclosure hence it has prima facie attained character of relevant fact constituting incriminating material in this case; in this regard, Articles: 38, 39 and 40 of the Qanun-e-Shahadat Order, 1984 are hereby reproduced for ready reference:-

"38. Confession to police officer not to be proved. No confession made to a police-officer shall be proved as against a person accused of any offence.

39. confession by accused while custody of police not to be proved against him. Subject to Article 40, no conession made by any person whilst he is in the custody of a police-offficer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.

40. How much of information received from accused may be proved. When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police-officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." (emphasis added)

Case of "Nazir Shehzad and another v. The State" (2009 SCMR 1440) can also be advantageously referred on the subject.

So, facts subsequently came into the knowledge/notice of the complainant through Muhammad Ramzan and Muhammad Mohsin (as detailed above in the supplementary statement of complainant and in the statement of said witnesses) have been corroborated by a relevant and incriminating piece of evidence i.e., aforementioned recovery of pistol which matched with the empty cartridge. Thus prima facie, at this stage, sufficient material is available against the petitioner to connect him with the commission of alleged offence; in this regard, case of "Allah Ditta v. The State" (2001 MLD 1123) can be referred and relevant portion from its paragraph No.5 is reproduced:-

2024 Y L R 1868

[Lahore]

Before Malik Shahzad Ahmad Khan, J

Imran Ali---Appellant

Versus

The State and others---Respondents

Criminal Appeal No. 68692-J of 2020, heard on 12th July, 2023.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Delay of about ten hours and fifty minutes in lodging the FIR not plausibly explained---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat---Occurrence in the case took place on 16.02.2019 at 08.15 a.m., but the FIR was lodged on 16.02.2019 at 07:05 p.m., i.e., with the delay of 10 hours and 50 minutes from the occurrence---Distance between the place of occurrence and the police station was only 1/2 kilometer---Such gross delay in lodging the F.I.R had created doubt regarding the truthfulness of the prosecution story---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Delay of about 29 hours and 15 minutes in conducting postmortem on the dead body of the deceased---Consequential---Accused was charged for committing the murder of his wife/daughter of complainant by cutting her throat---Record showed that postmortem examination on the dead body of deceased was conducted on 17.02.2019 at 01:30 p.m., which meant that there was delay of 29 hours and 15 minutes in conducting the postmortem examination---Delay in lodging the F.I.R and conducting the postmortem examination on the dead body of the deceased was suggestive of the fact that the occurrence was unseen and the said delay were consumed in procuring the attendance of fake eye-witnesses---Appeal against conviction was accordingly allowed.

'Muhammad Ilyas v. Muhammad Abid alias Billa and others 2017 SCMR 54; Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Sufyan Nawaz and another v. The State and others 2020 SCMR 192; Zafar v. The State and others 2018 SCMR 326 and Muhammad Ashraf v. The State 2012 SCMR 419 rel.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Ocular account not proved---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat---Ocular account of the prosecution was furnished by three eye-witnesses including the complainant---Complainant did not state in the FIR that he had witnessed the occurrence---Names of other eye-witnesses were not mentioned in the FIR and their names were introduced by the complainant for the first time through his supplementary statement, which was recorded on 18.02.2019 i.e., after two days from the occurrence---Both the eye-witnesses stated before the trial Court during their cross-examination that they accompanied complainant to the police station for registration of F.I.R but surprisingly their names were not mentioned in the F.I.R and their statements under S. 161 of Cr.P.C were not recorded on the day of occurrence rather the same were recorded after two days from the occurrence i.e., on 18.02.2019---One of the eyewitnesses stated during his cross-examination that at evening time, he accompanied his father-in-law, complainant, to the police station, where the complainant recorded his statement and after two days from the occurrence he along with other eye-witness got recorded their statements---Likewise, other eye-witness also stated before the trial Court that she accompanied complainant to the police station for registration of the FIR but neither her name was mentioned as an eye-witness in the FIR, nor she made any statement to the police on the day of occurrence i.e., on 16.02.2019, rather she made statement before the police on 18.02.2019---Eye-witnesses remained mum for two days after the occurrence without any valid reason, which showed that their introduction in the case as eye-witnesses after two days of the occurrence was result of an afterthought of the prosecution, hence their evidence was not worthy of reliance---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Chance witnesses---Presence of eye-witnesses at the time and place of occurrence not proved---Accused was charged for committing the murder of his wife/daughter of complainant by cutting her throat---Record showed that one of the eye-witnesses and a complainant were not residents of the place, where the occurrence took place---Place of occurrence in the case was 'MM' whereas both the said witnesses were residents of 'HK' located in another District---Eye-witness stated before the trial Court that on the day of occurrence he was asked by his father-in-law, complainant and other in-laws that there was a quarrel between deceased and her husband whereupon he accompanied the complainant to 'MM' and witnessed the occurrence but no such story was mentioned in the F.I.R which showed that the said story was later on concocted by the prosecution to justify the presence of eye-witnesses in the village of occurrence at the relevant time---Thus, the eye-witnesses could not justify their presence at the spot at the relevant time through any valid reason, therefore, they were chance witnesses and as such their evidence was not free from doubt---Though female eye-witness was resident of the area where the occurrence took place but she recorded her statement before police for the first time on 18.02.2019 i.e., after two days of the occurrence---Said witness remained mum for two days after the occurrence and as such her evidence was also doubtful---Appeal against conviction was accordingly allowed.

Mst. Sughra Begum and another v. Qaiser Pervez and others 2015 SCMR 1142 and Muhammad Irshad v. Allah Ditta and others 2017 SCMR 142 rel.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Unnatural conduct of witnesses---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat---Record showed that the complainant party comprised of at least 3/4 male adult members and they were also accompanied by other female members and people of the area at the time of occurrence but they did not try to save the deceased at the time of occurrence or apprehend the accused after the occurrence---Said witnesses allowed the accused to commit the murder of deceased, by inflicting, as many as, 11-injuries on her body---Deceased was real daughter of the complainant and sister-in-law of eye-witness---Accused was not armed with any formidable firearm weapon and he was only armed with a Churri---Evidently eye-witnesses stood like silent spectators at the time of occurrence---Had the eye-witnesses been present at the spot at the time of occurrence as claimed by them then they could have saved deceased or at least apprehended the accused after the occurrence---Conduct of eyewitnesses was unnatural thus their evidence was not worthy of reliance---Appeal against conviction was accordingly allowed.

Pathan v. The State 2015 SCMR 315 and Zafar v. The State and others 2018 SCMR 326 rel.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Ocular account and medical evidence---Conflict between---Accused was charged for committing the murder of his wife/daughter of complainant by cutting her throat by churri---All the eye-witnesses stated in their statements before the Trial Court regarding only one injury inflicted by the accused on the body of the deceased---According to the statement of Medical Officer as well as postmortem report, there were eleven injuries on the body of deceased but all the eye-witnesses did not utter a single word regarding the fact that deceased received eleven injuries on her body, which created conflict between the ocular account and medical evidence of the prosecution---Had the eye-witnesses been present at the spot, at the time of occurrence, they would have also explained the remaining injuries sustained by the deceased---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat by churri---As per prosecution case, the motive behind the occurrence was that accused was having suspicion regarding illicit relationship of his wife with someone else---None of the prosecution witnesses uttered a single word regarding motive part of the prosecution case during their evidence recorded by the Trial Court and they remained mum in that respect---Under the circumstances, the motive as alleged by the prosecution had not been proved in the case and the same was rightly disbelieved by the trial Court---Appeal against conviction was accordingly allowed.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence on the pointation of accused---Inconsequential---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat by churri---Record showed that blood stained "churri" was recovered on the pointation of accused---Occurrence in this case took place on 16.02.2019, whereas, churri was recovered on the pointation of the accused from his house on 08.03.2013 i.e., after twenty two days from the occurrence and during such period, accused had ample opportunity to wash way the blood on churri---Thus, recovery of blood stained, churri' on the pointation of accused was not free from doubt---Appeal against conviction was accordingly allowed.

Basharat and another v. The State 1995 SCMR 1735 rel.

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

----Ss. 302(b) & 311---Qatl-i-amd, tazir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Delay in sending the crime weapon for analysis---Consequential---Accused was charged for committing murder of his wife/daughter of complainant by cutting her throat---Record showed that the blood stained 'churri' was sent to the office of Forensic Science Agency on 29.03.2019 i.e., after one month and thirteen days from the occurrence, therefore, it was unlikely that the blood on 'churri' would not disintegrate during such period---Thus, the evidence of alleged recovery of 'churri' from accused and positive report of Forensic Science Agency were of no avail to the prosecution---Appeal against conviction was accordingly allowed.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

(j) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance which creates doubt regarding the prosecution case, the same is 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.

Mian Muhammad Ramzan for the Appellant.

Ms. Asiya Yasin, Deputy District Public Prosecutor for the State.

Ch. Umar Hayat Sandhu for Complainant.

Date of hearing: 12th July, 2023.

Judgment

Malik Shahzad Ahmad Khan, J.---This judgment shall dispose of Criminal Appeal No.68692-J of 2020, filed by Imran Ali (appellant), against his conviction and sentence in case F.I.R. No.134/2019 dated 16.02.2019, registered at Police Station Manga Mandi, Lahore, in respect of offences under sections 302/311, P.P.C.

1. After conclusion of the trial, the learned trial Court (Additional Sessions Judge, Lahore) vide its judgment dated 21.11.2020, has convicted and sentenced Imran Ali (appellant) as under:-

Under section 302(6) P.P.C. to 'imprisonment for life as tazir' for committing Qatl-i-Amd of Mst. Naila (deceased). He was also ordered to pay Rs.5,00,000/- (rupees five hundred thousand only) as compensation as required under section 544-A of Cr.P.C to the legal heirs of the deceased which shall be recoverable as arrears of land revenue and in default thereof to further undergo six months simple imprisonment.

Benefit of section 382-B, Cr.P.C, was also extended to the appellant.

1. Brief facts of the case as given by the complainant Muhammad Mushtaq (PW-3), in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PA/1), was chalked out, are that the complainant was a labourer by profession. The daughter of the complainant namely Mst. Naila (deceased) was married to Imran Ali (appellant) about ten years earlier and the couple had four children, who were living in a rented house, at Mohallah Ahmad-Abad, Manga Mandi. Prior to the occurrence, the relationship between the daughter of the complainant namely Mst. Naila (deceased) and his son-in-law namely Imran Ali (appellant), became strained as the appellant used to level the allegation of having illicit relationship, against the deceased. On 16.02.2019, at about 08.15 a.m, Imran Ali (appellant) cut the throat of daughter of the complainant. On hue and cry of Mst. Naila deceased, Imran Ali (appellant) decamped from the spot. The Mohalladars of the locality called emergency service 1122, as well as, the police on emergency number 15. Mst. Naila (deceased), was shifted to the Jinnah Hospital (Lahore) through emergency Ambulance service 1122 but she succumbed to the injuries on the way to the hospital.

Later on, Muhammad Mushtaq complainant got recorded his supplementary statement (Ex.PD) on 18.02.2019, wherein he alleged that as he was worried on the day of occurrence, therefore, he could not mention certain facts of this case. He alleged in his supplementary statement that at the night time Imran Ali (appellant), while talking on telephone was threatening about dire consequences and bloodshed, whereupon he (complainant), along with Muhammad Iqbal (PW since given-up), Muhammad Shafique (PW-2) and Mst. Zubaida Bibi (PW1), reached at the house of Imran Ali (appellant). The door of the house was closed, which was opened after pushing it and at that time, Imran Ali (appellant), was cutting the throat of Mst. Naila (deceased). As soon as Imran Ali (appellant), saw the complainant party, he also threatened them to cut their throats as well, whereupon the complainant party stepped back. Imran Ali (appellant), removed gold ornaments of his wife namely Mst. Naila (deceased) and thereafter on hue and cry of the complainant party the people of the locality also joined the complainant party, whereupon, he (appellant), decamped from the spot.

1. The appellant was arrested in this case by the police on 01.03.2019 and after completion of investigation the challan was prepared and submitted before the learned trial Court. The learned trial Court, after observing legal formalities, as provided under the Code of Criminal Procedure, 1898 framed charge under sections 302/311, P.P.C., against the appellant on 10.12.2019, to which he pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced ten witnesses. Prosecution also produced documentary evidence in the shape of Ex.PA to Ex.PR. The statement of the appellant under section 342, Cr.P.C, was recorded, wherein he refuted the allegations levelled against him and professed his innocence, however, no defence evidence was produced by the appellant.

2. The learned trial Court vide its impugned judgment dated 21.11.2020, found the appellant guilty, convicted and sentenced him as mentioned and detailed above.

3. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case by the complainant being in league with the local police; that there is a delay of ten hours and fifty minutes in lodging the FIR, which shows that the same has been lodged after consultation and deliberations; that there is delay of twenty nine hours and fifteen minutes in conducting postmortem examination on the dead-body of the deceased, which has further created doubt regarding truthfulness of the prosecution story; that names of both the eye-witnesses of the prosecution namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), are not mentioned in the contents of the FIR and their names were introduced by the complainant for the first time on 18.02.2019 i.e., after two days of the occurrence while recording his supplementary statement (Ex.PD) whereas, the third eye-witness, namely Muhammad Mushtaq, complainant (PW-3) has not claimed or mentioned in the FIR (Ex.PA/1) that he had witnessed the occurrence; that as per postmortem report, there were eleven injuries on the body of Mst. Naila (deceased) but the prosecution eye-witnesses namely Muhammad Mushtaq complainant (PW-3), Muhammad Shafique (PW2) and Mst. Zubaida Bibi (PW-1), only stated about one injury on the throat of Mst. Naila (deceased) and they did not mention regarding remaining injuries, which shows that the prosecution eye-witnesses were not present at the spot at the relevant time; that Muhammad Shafique (PW-2) is resident of Haji Kot Kala Khatai Road, Shandra, Lahore and Muhammad Mushtaq, complainant (PW-3) is resident of village Barath District Sheikhupura whereras the occurrence took place in Mohalla Ahmad Abad, Manga Mandi, Lahore but the abovementioned eye- witnesses have not given any valid reason for their presence at the spot at the time of occurrence, therefore, they are chance witness; that although Mst. Zubaida Bibi (PW-1), is resident of the same area, where the occurrence took place but she remained mum till 18.02.2019, when she got recorded her statement under section 161 of Cr.P.C; that the conduct of the prosecution eye - witnesses is highly un-natural because the appellant was not armed with any formidable weapon like firearm but the prosecution eye-witnesses did not try to save the life of Mst. Naila (deceased) or apprehend the appellant at the time of occurrence; that although the complainant alleged in the FIR (Ex.PA/1), that the appellant was having suspicion regarding illicit relationship of his wife with somebody but the complainant while appearing before the learned trial Court as PW-3 or other prosecution witnesses, did not utter a single word about the motive part of the prosecution case; that the recovery of Churri P-5 has been planted against the appellant and positive report of Punjab Forensic Science Agency, Lahore (Ex.PR), in respect of the presence of blood on the said Churri is highly doubtful because the occurrence in this case took place on 16.02.2019, whereas Churri (P-5) was deposited in the office of PFSA, Lahore on 29.03.2019 i.e., after one month and thirteen days from the occurrence whereas, the blood disintegrates within a period of 3 to 4 weeks; that the impugned judgment is result of misreading and non-reading of evidence available on the record; that the prosecution has miserably failed to prove its case against the appellant beyond the shadow of doubt, therefore, the appeal filed by the appellant may be accepted and the appellant may be acquitted from the charge.

4. On the other hand, learned Deputy District Public Prosecutor for the State, assisted by learned counsel for the complainant has argued that it is a case of single accused and the prosecution has proved its case against the appellant through reliable and confidence inspiring evidence; that the complainant Muhammad Mushtaq (PW-3) is real father of Mst. Naila (deceased), whereas Muhammad Shafique (PW-2) is brother-in-law of the deceased and as the abovementioned eye-witnesses are closely related to the deceased, therefore, substitution in such like cases is a rare phenomena; that the appellant was named in the FIR with the specific role and the role attributed to the appellant was fully supported by the medical evidence, furnished by Dr. Faiza Muneer Qazi (PW-9), who noted ten incised wounds and one abrasion total eleven wounds on the body of the deceased; that the prosecution eye-witnesses stood the test of lengthy cross-examination but their evidence could not be shaken; that the prosecution case against the appellant is further corroborated by the recovery of Churri P-5, on the pointation of the appellant and the positive report of Punjab Forensic Science Agency, Lahore (Ex.PR); that the prosecution story qua the motive is also proved in this case; that the appellant has committed a brutal and reckless murder of his wife by inflicting as many as 11 injuries on her body, therefore, he does not deserve any leniency, in this case; that there is no substance in the appeal filed by the appellant, therefore, the same may be dismissed and conviction and sentence of the appellant, as awarded by the learned trial Court may be upheld and maintained.

5. Arguments heard. Record perused.

6. The detail of the prosecution case as set forth in the complaint (Ex.PA) on the basis of which the formal FIR (Ex.PA/1), was chalked out, as well as, in the supplementary statement of the complainant (Ex.PD), has already been given in Para No.3 of this judgment, therefore, there is no need to repeat the same.

7. I have noted that the occurrence in this case took place on 16.02.2019 at 08.15 a.m., but the FIR was lodged on 16.02.2019 at 07:05 p.m., i.e., with the delay of 10 hours and 50 minutes from the occurrence. The distance between the place of occurrence and the police station was only 1/2 kilometer. The abovementioned gross delay in lodging the FIR has created doubt regarding the truthfulness of the prosecution story. I have also noted that postmortem examination on the dead body of Mst. Naila deceased was conducted on 17.02.2019 at 01:30 p.m., which means that there was delay of 29 hours and 15 minutes in conducting the postmortem examination on the dead body of Mst. Naila deceased. The abovementioned delay in lodging the FIR and conducting the postmortem examinations on the dead body of the deceased is suggestive of the fact that the occurrence was unseen and the said delay were consumed in procuring the attendance of fake eye-witnesses. In the case of 'Muhammad Ilyas v. Muhammad Abid alias Billa and others' (2017 SCMR 54), the Apex Court of the country was pleased to observe that delay of 09 hours in conducting the postmortem examination suggests that prosecution eye-witnesses were not present at the spot at the time of occurrence and the said delay was used in procuring the attendance of fake eye-witnesses. Relevant part of the said judgment at page No. 55 reads as under:-

"2. ......................Post-mortem examination of the dead body of Muhammad Shahbaz deceased had been conducted after nine hours of the incident which again was a factor pointing towards a possibility that time had been consumed by the local police and the complainant party in procuring and planting eye-witnesses and cooking up a story for the prosecution. ..."

Similarly, in the case of "Khalid alias Khalidi and 2 others v. The State" (2012 SCMR 327), the Hon'ble Supreme Court of Pakistan considered the delay of 10/11 hours from the occurrence in conducting the post mortem examination on the dead body of deceased, to be an adverse fact against the prosecution case and it was held that it shows that the FIR was not lodged at the given time.

Similar view was taken by the Apex Court of the country in the cases reported as "Sufyan Nawaz and another v. The State and others" (2020 SCMR 192),"Zafar v. The State and others" (2018 SCMR 326) and "Muhammad Ashraf v. The State" (2012 SCMR 419).

1. The ocular account of the prosecution was furnished by Mst. Zubaida Bibi (PW-1), Muhammad Shafique (PW-2) and Muhammad Mushtaq complainant (PW-3). Muhammad Mushtaq complainant (PW-3), did not state in the FIR that he had witnessed the occurrence. The names of other eye-witnesses namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), were not mentioned in the FIR and their names were introduced by the complainant for the first time through his supplementary statement (Ex.PD), which was recorded on 18.02.2019 i.e., after two days from the occurrence. It is further noteworthy that both the abovementioned eye-witnesses namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), stated before the learned trial Court during their cross-examination that they accompanied Muhammad Mushtaq complainant to the police station for registration of FIR but surprisingly their names were not mentioned in the FIR and their statements under section 161 of Cr.P.C, were not recorded on the day of occurrence rather the same were recorded after two days from the occurrence i.e., on 18.02.2019. Muhammad Shafique (PW-2) stated during his cross-examination that at evening time, he accompanied his father-in-law namely Muhammad Mushtaq complainant (PW-1), to the police station, where the complainant got recorded his statement and after two days from the occurrence he along with other got recorded their statements. Relevant part of his statement made during cross-examination reads as under:-

"................At evening time, we went to police station Manga Mandi, Lahore, where my father-in-law gave his statement to the police. After two days, we went to P.S Raiwind, Lahore where we got recorded our statements......"

Likewise, Mst. Zubaida Bibi (PW-1), also stated before the learned trial Court that she accompanied Mushtaq Ahmad complainant (PW-3), to the police station for registration of the FIR but as mentioned earlier, neither her name was mentioned as an eye-witness in the FIR (Ex.PA/1), nor she made any statement to the police on the day of occurrence i.e., on 16.02.2019 rather she made statement before the police on 18.02.2019. The relevant part of her statement in this respect is reproduced hereunder:-

".............................When Mushtaq Ahmad, father of deceased went to the police station at 06.15 PM with an application, I also accompanied him along with Shafique, Ghulum Rasul (my son). Application was written by the police officer himself. I don't know that said application was read over to Mushtaq or not. It is not in my knowledge that whether my name and name of Shafique PW was not written by police as witnesses in FIR but we mentioned specifically these names of witnesses to the police. I got mentioned name of mother of deceased in my statement before the police recorded on 18.02.2019. Confronted with Ex.DA, where name of mother of deceased was not mentioned......."

It is, therefore, evident form the perusal of the statements of Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2) that they both accompanied Muhammad Mushtaq (PW-3) on the day of occurrence, to the police station for registration of FIR (Ex.PA/1) but neither their names have been mentioned in the FIR as prosecution witnesses nor they made any statement to the police on the said day, rather they both made their statements before the police for the first time after two days of the occurrence i.e. on 18.02.2019. They remained mum for two days after the occurrence without any valid reason, which shows that their introduction in this case as eye-witnesses after 2-days of the occurrence is result of an afterthought of the prospection, hence their evidence is not worthy of reliance.

It is further noteworthy that Muhammad Shafique (PW-2) and Muhammad Mushtaq complainant (PW-3) are not residents of the place, where the occurrence took place. The place of occurrence in this case is Mohallah Ahmad-abad Manga Mandi, whereas both the abovementioned prosecution eye-witnesses are residents of Haji Kot Kala Khatani Road, Shandra, Lahore and village Barath Tehsil Ferozwala, District Sheikhupura, respectively. Muhammad Shafique (PW-2) stated before the learned trial Court that on the day of occurrence he was asked by his father-in-law Muhammad Mushtaq, complainant (PW-3) and other in-laws that there was a quarrel between Mst. Naila Bibi (deceased) and her husband Imran Ali (appellant) whereupon he accompanied the complainant to Manga Mandi, Lahore and witnessed the occurrence but no such story was mentioned in the FIR (Ex.PA/1) which shows that the above referred story was later on concocted by the prosecution to justify the presence of the said prosecution eye-witnesses in the village of occurrence at the relevant time. I am, therefore, of the view that the prosecution eye-witnesses could not justify their presence at the spot at the relevant time through any valid reason, therefore, they are chance witnesses and as such their evidence is not free from doubt. The Hon'ble Supreme Court of Pakistan in the case of "Mst. Sughra Begum and another v. Qaiser Pervez and others" (2015 SCMR 1142) at Para No.14, observed regarding the chance witnesses as under:-

"14. A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs. It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time. In normal course, the presumption under the law would operate about his absence from the crime spot. True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt."

Similar view was taken in the case of "Muhammad Irshad v. Allah Ditta and others" (2017 SCMR 142). Relevant part of the said judgment at Para No.2 reads as under:-

".................Muhammad Irshad complainant (PW8) and Rab Nawaz (PW9) were chance witnesses and the stated reason for their presence with the deceased at the relevant time had never been established before the trial court through any independent evidence ... ..."

As the above-mentioned prosecution eye-witnesses are chance witnesses and they could not prove the reason of their presence at the spot at the time of occurrence, therefore, their very presence at the spot at the relevant time becomes doubtful. Insofar the evidence of prosecution eye-witness namely Mst. Zubaida Bibi (PW-1), is concerned, though she was resident of the area where the occurrence took place but as mentioned earlier, she got recorded her statement before police for the first time on 18.02.2019 i.e., after two days from the occurrence. She remained mum for two days after the occurrence and as such her evidence is also doubtful.

1. It is also noteworthy that the conduct of the prosecution eye-witnesses at the time of occurrence is highly un-natural. According to the prosecution's own case, the appellant committed murder of Mst. Naila (deceased), while cutting her throat with Churri. Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), stated that at the time of occurrence, the complainant party was comprising of father and mother of the deceased, Muhamamd Shafique (PW-2), Iqbal (PW since given-up), a milkman, as well as, other people of the area also attracted to the spot. Relevant part of their statements made in this respect read as under:-

Mst. Zubaida Bibi (PW-1)

"............When I reached at the door, father and mother of the deceased, Muhammad Shafique and Iqbal, this milkman along with few other women were pushing the door to get into the house....."

Muhammad Shafique (PW-2)

"......................We heard hue and cry from inside the house. In the meanwhile of knocking the door, people of the locality also gathered there........."

The complainant party was comprising of at least 3/4 male adult members. They were also accompanied by other female members and people of the area at the time of occurrence but they did not try to save Mst. Naila (deceased) at the time of occurrence or to apprehend the appellant after the occurrence. They allowed the appellant to commit the murder of Mst. Naila (deceased), by inflicting, as many as, 11- injuries on her body. Mst. Naila Bibi (deceased) was real daughter of the complainant and sister-in-law of Muhammad Shafique (PW-2). The appellant was not armed with any formidable firearm weapon and he was only armed with a Churri. It is evident from the perusal of the evidence of the prosecution eye-witnesses that they stood like silent spectators at the time of occurrence. Had the abovementioned eye-witnesses been present at the spot at the time of occurrence as claimed by them then they could have saved Mst. Naila (deceased) or at least apprehended the appellant after the occurrence. Their conduct is unnatural thus their evidence is not worthy of reliance. I may refer here the case of "Pathan v. The State" (2015 SCMR 315), wherein at Para No.5, of the judgment, the august Supreme Court of Pakistan was pleased to observe as under:-

"The presence of witnesses on the crime spot due to their unnatural conduct has become highly doubtful, therefore, no explicit reliance can be placed on their testimony. They had only given photogenic/photographic/ narration of the occurrence but did nothing nor took a single step to rescue the deceased The causing of that much of stab wounds on the deceased loudly speaks that if these three witnesses were present on the spot, being close blood relatives including the son, they would have definitely intervened, preventing the accused from causing further damage to the deceased rather strong presumption operates that the deceased was done to death in a merciless manner by the culprit when he was at the mercy of the latter and no one was there for his rescue....."

Similar view was reiterated by the august Supreme Court of Pakistan in the cases of "Zafar v. The State and others" (2018 SCMR 326) and "Liaquat Ali v. The State" (2008 SCMR 95). Under the circumstances, it cannot be safely held that the abovementioned eye-witnesses were present at the spot at the relevant time and they had witnessed the occurrence because their conduct is highly unnatural.

1. It is further noteworthy that the eye-witnesses namely Mst. Zubaida Bibi (PW-1) and Muhammad Shafique (PW-2), stated during their examination-in-chiefs that before shifting Mst. Naila (deceased) to the hospital, she made statement before the police that she was killed by her husband namely Imran Ali (appellant) but not a single police officer who has been examined in this case as a prosecution witness has stated that Mst. Naila (deceased), made any dying declaration in his/her presence.

2. I have also noted that all the prosecution eye-witnesses namely Mst. Zubaida Bibi (PW-1), Muhammad Shafique (PW-2) and Muhammad Mushtaq (PW-3), stated in their statements before the learned trial Court regarding only one injury inflicted by the appellant on the body of the deceased that Imran Ali (appellant) cut throat of Mst. Naila (deceased). According to the statement of Dr. Faiza Muneer Qazi (PW-9), as well as, postmortem report (Ex.PL), there were eleven injuries on the body of Mst. Naila deceased but all the abovementioned prosecution eye-witnesses did not utter a single word regarding the fact that Mst. Naila (deceased ) received eleven injuries on her body, which creates conflict between the ocular account and medical evidence of the prosecution. Had the abovementioned eye-witnesses been present at the spot, at the time of occurrence, they would have also explained the remaining injuries sustained by the deceased.

3. As per prosecution case, the motive behind the occurrence was that Imran Ali (appellant) was having suspicion regarding illicit relationship of his wife with someone else. I have noted that none of the prosecution witnesses utter a single word regarding motive part of the prosecution case during their evidence recorded by the learned trial Court and they remained mum in this respect. Under the circumstances, the motive as alleged by the prosecution has not been proved in this case and the same was rightly disbelieved by the learned trial Court in paragraph No.21, of the impugned judgment.

4. Insofar as the recovery of blood stained 'Churri' (P-5) on the pointation of Imran Ali appellant is concerned, it is noteworthy that the occurrence in this case took place on 16.02.2019, whereas, 'Churri' (P5) was recovered on the pointation of the appellant from his house on 08.03.2013 i.e., after twenty two days from the occurrence and during the abovementioned period, Imran Ali appellant had ample opportunity to wash way the blood on 'Churri' (P.5). In the light of above, recovery of blood stained 'Churri' (P-5) on the pointation of Imran Ali appellant is not free from doubt. The Hon'ble Supreme Court of Pakistan in the case of 'Basharat and another v. The State' (1995 SCMR 1735) disbelieved the evidence of blood-stained dagger which was allegedly recovered from the accused from his house after ten days from the occurrence. Relevant part of the said judgment at page No. 1739 is reproduced hereunder for ready reference:-

"11. The occurrence took place on 20.04.1988. Basharat appellant was arrested on 28.04.1988. The blood-stained Chhuri was allegedly recovered from his house on 30.04.1988. It is not believable that he would have kept blood stained chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it"

It is also noteworthy that the blood stained ' Churni' (P-5) was sent to the office of Punjab Forensic Science Agency, Lahore on 29.03.2019 i.e., after one month and thirteen days from the occurrence, therefore, it was unlikely that the blood on 'Churri' (P-5) would not disintegrate during the above mentioned period. The Hon'ble Supreme Court of Pakistan in the case of "Muhammad Jamil v. Muhammad Akram and others" (2009 SCMR 120) has observed that recovery of blood stained hatchet was affected after about one month from the occurrence, therefore, it was not likely that the blood would not disintegrate in the meanwhile, thus, the alleged recovery of hatchet from the accused was disbelieved. We are, therefore, of the view that the evidence of alleged recovery of 'Churri' (P-5) from Imran Ali (appellant) and positive report of Punjab Forensic Science Agency, Lahore (Ex.PR) are of no avail to the prosecution.

1. We have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution miserably failed to prove its case against the appellant beyond the shadow of doubt. It is by now well settled that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubts about the prosecution story. In 'Tariq Pervez v. The State' (1995 SCMR 1345), the Hon'ble Supreme Court of Pakistan, at page 1347, was pleased to observe as under:-

2024 Y L R 1892

[Lahore]

Before Aalia Neelum and Farooq Haider, JJ

Asjad Mehmood---Appellant

Versus

The State---Respondent

Criminal Appeal No. 44525-J and Murder Reference No. 100 of 2019, decided on 29th March, 2023.

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

----S. 302(b)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Material witness given up---Effect---Accused was charged for committing murder of the daughter of the complainant by firing---Record showed that the complainant deposed during cross-examination that Mr. "A"/witness informed police about the occurrence telephonically at once---Son of the deceased deposed during his cross-examination that Mr. "A"/witness informed the police about the occurrence---Thus, it was established from the evidence of complainant and son of deceased that Mr. "A" informed the police about the incident and said witness was given up being un-necessary, therefore, an adverse inference was to be drawn within the meaning of Art. 129 (g) of Qanun-e-Shahadat, 1984 that had the said witness appeared in witness box, his testimony would have been un-favourable to the prosecution---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal of the accused was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Defective investigation---Accused was charged for committing murder of the daughter of the complainant by firing---Prosecution's version was that the death information was received at 06:00 a.m., but column No. 3 of the inquest report revealed that the date and time of receiving information of death were 21.12.2009 at 04:00/05:00 a.m.---As per the prosecution case, fard bayan was written at 06:00 a.m., and in column No.4 of the inquest report, names of the persons who identified the dead body at the time of the inquest were mentioned---If it was so, it was required to be explained by Investigating Officer, by plausible evidence on the record as to how the inquest was undertaken at 04:00/05:00 a.m. in the presence of witness, who was called from another place and proceeded at about 08:30 a.m. and directly went to THQ Hospital---Investigating Officer deposed that on 21.12.2009 he received the information of occurrence in village---After that, Investigating Officer along with other Police Officials proceeded to the place of occurrence; recorded fard bayan; prepared an inquest report and an injury statement and entrusted the dead body of the deceased to Police Constable for taking to the mortuary for postmortem examination---If Investigating Officer reached the place of occurrence upon receiving information, then the complainant had met with her and recorded fardbayyan and he prepared an injury statement---On perusal of the injury statement, it revealed that space was left blank after mentioning "Banam" and it revealed that till preparation of the injury statement, fardbayyan was not prepared---Under Column No. 24 of the Inquest Report, a sketch plan of where the dead body was found was not given---Investigating Officer had not prepared a drawing of where the dead body was lying and its condition but left it blank---Conduct of the Investigating Officer and his investigation of the case was not above board---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal of the accused was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Delay of seven hours and fifty minutes in conducting the postmortem examination upon the dead body of the deceased not explained---Accused was charged for committing murder of the daughter of the complainant by firing---First Information Report revealed that the same was lodged at 6:30 a.m. on 21.12.2009, and Female Medical Officer conducted postmortem examination at 02:20 p.m. on the same day---Contents of the postmortem examination report revealed that the dead body was received in the dead house on 21.12.2009 at 2:00 p.m., and complete documents from police were received at 2:20 p.m.---Autopsy was conducted at 2:20 p.m.---Autopsy was conducted after about seven hours and fifty minutes from the time of registration of FIR---Prosecution did not explain the delay in conducting the postmortem examination---Considering all these facts, the prosecution had not been able to prove on record that the FIR was recorded at the claimed time---Delay in lodging the first information report often results in consultation and deliberation, which is a creature of an afterthought---Prosecution failed to explain the delay in reporting the incident and the delay in conducting a post-mortem examination of the dead body of the deceased---Hence the said circumstances raised considerable doubt regarding the veracity of the case and suggested delay in reporting the incident in lodging the FIR which was fatal to the prosecution's case---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal of the accused was accordingly allowed.

Irshad Ahmed v. The State 2011 SCMR 1193 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Ocular account and medical evidence---Conflict---Accused was charged for committing murder of the daughter of the complainant by firing---Complainant deposed that accused made three fire shots with his rifle which landed on the belly and one fire hit on her chest---All fires went through and through---Contrary to that, the complainant deposed during cross-examination that they were standing near the deceased at relevant time and they witnessed that five shots went through and through---Son of deceased deposed during cross examination that three fire shots were made by the accused; two fire shots landed on belly and one fire shot landed on the chest of his mother---Postmortem examination report revealed that the deceased received three firearm injuries---Injury No. 1-a went through and through, whereas injuries 2-a and 3-a were from downward to upward---In the prosecution's case, the accused shot a burst, and all fire shots landed on the deceased's body---Under the head external examination sub-head examination of clothes, the postmortem report revealed that the deceased's shirt was torn---Prosecution's evidence was silent on how the deceased's shirt was torn and who did the same---Even the Female Medical Officer had not observed corresponding holes on the shirt---Distance from which the accused fired upon the deceased became irrelevant because the Investigating Officer had not mentioned the distance between different pointsin the un-scaled site plan---Conflict between medical evidence and ocular testimony was so severe that it traveled to the roots of the matter and knocked the bottom of the prosecution's case against the accused---Apparent conflict between the medical evidence and ocular testimony of a chance, and an interested witness made there evidence incapable of being believed---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal of the accused was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Motive not proved---Accused was charged for committing murder of the daughter of the complainant by firing---Motive behind the occurrence was a domestic dispute between accused and deceased---Motive set up by the prosecution in the fardbayyan and FIR. was that the deceased made the call to the complainant on 20.12.2009 and informed her that there were usually domestic quarrels between the deceased and the accused---Coming to know of the occurrence, complainant and her bhanja/witness went to the house of the deceased---After that, the complainant and eye-witness had improved their statements before the police---Defence had brought on record the contradictions in the evidence of the complainant and eye-witness---In the circumstances, the motive, as alleged, was an afterthought and did not inspire confidence and therefore the same deserved to be discarded---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal of the accused was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Recovery of weapon of offence---Inconsequential---Accused was charged for committing murder of the daughter of the complainant by firing---Recovery of the rifle allegedly affected by the accused was of no consequence to the prosecution case when medical evidence was at variance with the ocular account---Report of Forensic Science Laboratory was only to the effect that the weapon allegedly recovered from the accused was in mechanical operating condition---So, the recovery of the weapon from the accused was of no consequence---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal of the accused was accordingly allowed.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Benefit of doubt---Absconsion of the accused---Inconsequential---Accused was charged for committing murder of the daughter of the complainant by firing---Murder was committed in the house of accused and he was not there after the occurrence---As far as the absconding of the accused was concerned, the evidence taken against the accused was that he had absconded after the incident---Deposition of Investigating Officer revealed that nothing was available on record to show that the proceedings under Ss. 87 & 88 of Cr.P.C took place against the accused as prescribed in the law---Accused was indeed absconding, but in the present case, the substantive piece of evidence in the shape of ocular account had been disbelieved and therefore, no conviction could be based on absconsion alone---Circumstances established that the prosecution had failed to prove its case against the accused beyond shadow of doubt---Appeal of the accused was accordingly allowed.

Rohtas Khan v. The State 2010 SCMR 566 rel.

Miss Rida Noor and Ch. Abdur Rehman Sahi for the Appellant.

Rana Ahsan Aziz Additional Prosecutor General with Javed, ASI for the State.

Qasim Mehmood Baba for Complainant.

Date of hearing: 15th March, 2023.

Judgment

Aalia Neelum, J.---The appellant-Asjad Mehmood, son of Muhammad Khan, Caste Gujjar, resident of Khonan, Tehsil Kharian, District Gujrat, has assailed his conviction and sentence recorded by the learned Addl. Sessions Judge, Kharian vide judgment dated 11.04.2019 in a State case FIR No.563/2009, dated 21.12.2009, an offense under Section 302, P.P.C., registered at the Police Station, Saddar Kharian, District Gujrat, whereby the learned trial court convicted the appellant-Asjad Mehmood, under Section 302 (b) P.P.C. as Ta'zir and sentenced to death with the direction to pay Rs.3,00,000/- as compensation to the legal heirs of the deceased under Section 544-A of Cr.P.C, which would be recoverable as arrears of land revenue and in case of default in payment thereof, he would further undergo 06-months S.I.

1. Feeling aggrieved by the judgment of the learned trial court, the appellant-Asjad Mehmood, has assailed his conviction and sentence by filing an appeal bearing Crl. Appeal No.44525-J of 2019. The learned trial court also referred M.R. No.100 of 2019 (The State. v. Asjad Mehmood) to confirm the death sentence awarded to the appellant-Asjad Mehmood, as both the matters arising from the same judgment of the learned trial court are being disposed of through this consolidated judgment.

2. Briefly, the prosecution story as alleged in the FIR (Ex. PC) lodged on the application (Ex. PA) of Maqsood Bibi (PW-1)-the complainant is that on 20.12.2009, the daughter of the complainant, namely Babra Bibi (since dead) called the complainant telephonically that the accused-Asjad Mehmood was quarreling with her every day after that the complainant reached the house of her daughter along with her "bhanja" namely Atif Annayat to see her daughter. When the complainant reached her daughter's house, the accused started quarreling with Maqsood Bibi (PW-1) and her "bhanja." After that, at about 4/5 a.m., the accused-Asjad Mehmood, called Babra Bibi (since dead), who came out of the room. The complainant and others also went out of the room. The accused-Asjad Mehmood, armed with a rifle, made fire shots, which hit the belly and chest of Babra Bibi (since dead), who succumbed to the injuries on the spot. The alleged occurrence was witnessed by Maqsood Bibi (PW-1)-the complainant, Sohail (PW-2), and Atif Annayat.

3. The motive behind the occurrence was a domestic dispute between the accused-Asjad Mehmood, and his brother Amjad Mehmood (husband of the deceased, Babra Bibi), due to which the alleged occurrence took place.

4. The complainant-Maqsood Bibi (PW-1), reported the incident to local police through Fard Bayan (Ex. PA) after that formal FIR (Ex. PC) was chalked out by Wasif Hussain, S.I (PW-4). After the registration of the case, firstly, the investigation of this case was entrusted to Muhammad Khan Ranjha, SI (PW-9). After that, the investigation of this case was entrusted to Tanvir Abbas, SI (PW-13), who found the accused/appellant guilty, prepared a report under Section 173, Cr.P.C. while placing the names of the accused in column No.3 of the Challan and sent the same to the court of competent jurisdiction. The learned trial court formally charge-sheeted the appellant on 04.05.2017, to which he pleaded not guilty and claimed trial. In support of his version, the complainant produced as many as thirteen (13) witnesses. The appellant was also examined in terms of Section 342 Cr.P.C., wherein he neither opted to appear as his own witness in terms of Section 340(2) Cr.P.C. nor produced any defence evidence.

5. After recording evidence and evaluating the evidence available on record in light of arguments advanced from both sides, the learned trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction as well as awarding of sentence to him in the afore-stated terms.

6. We have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file.

7. The incident took place on 21.12.2009 at 04:00/05:00 a.m. in the house of Asjad Mehmood, situated in the area of village Khunan, within the area of Police Station, Sadar Kharian, District, Gujrat, which is at a distance of seven (7) Miles from the place of occurrence. Mst. Maqsood Bibi (PW-1)-the complainant reported the incident through her Fard Bayan (Exh. PA) to Muhammad Khan Ranjha, S.I. (PW-9) at 06:00 a.m., who reached the place of occurrence on receiving information and referred the Fard Bayyan (Exh.PA) through Muhammad Hanif 3432/C (not cited as PW) to the police station, based on which, formal FIR. (Exh.PC) was chalked out on the same day at 6:30 a.m. by Wasif Hussain SI/DO (PW-4).

Mst. Maqsood Bibi, the complainant (PW-1), deposed during cross-examination that: -

"---Atif Pw informed police about the occurrence telephonically at once. Atif Pw is serving in any department in Kharian that's why he has telephone number of Police Station---"

It is notable that immediately after the incident of the murder of Babra, it was reported to the police. It is noticed that the occurrence took place at 04:00/05:00 a.m. (night), and the distance between the police station and the place of occurrence was seven (7) Miles, whereas Mst. Maqsood Bibi, the complainant (PW-1), deposed during cross-examination that: -

"I got recorded my statement to police at about 5.30 am."

Whereas, the police proceedings (Exh. PA/1) written below at the Fard Bayyan (Exh. PA) reveal that the same was written at 06:00 a.m. Sohail Amjad (PW-2), son of the deceased, deposed during cross-examination that: -

"---Atif Pw informed the police about the occurrence. Police reached at place of occurrence at 6.00 a.m---"

Thus, it was established from the evidence of Mst. Maqsood Bibi (PW-1) and Sohail Amjad (PW-2) that Atif Annayat (PW) informed the police about the incident and said witness was given up being un-necessary, therefore, an adverse inference is to be drawn within the meaning of Article 129 (g) of Qanun-e-Shahadat Order, 1984 that had the witness Atif Annayat, been appeared in witness box, then his testimony would have been un-favourable to the prosecution. Mst. Maqsood Bibi, the complainant (PW-1), deposed during cross-examination that: -

"---I can not tell inter se distance of village Khunan and Police Station Saddar Kharian---I can not tell the numbers of police officials/officers who reached at the place of occurrence. I got recorded my statement to Moulvi Shareef, police officer--- It is correct that Moulvi Shareef questioned me about the occurrence and I made answers to him and same were reduced to writing by him---"

Mst. Maqsood Bibi, the complainant (PW-1), reaffirms that their statements were recorded by "Moulvi Shareef." But as per record, name of the police officer to whom Mst. Maqsood Bibi, the complainant (PW-1) got, recorded her statement (Exh.PA/1) regarding occurrence, is Muhammad Khan, S.I and not Moulvi Shareef. Mst. Maqsood Bibi, the complainant (PW-1), deposed during cross-examination that: -

"---When my statement was being recorded by Moulvi Shareef, I, Atif and Sohail were present---"

Contrary to the deposition of Mst. Maqsood Bibi, the complainant (PW-1), Muhammad Khan Ranjha, S.I. (PW-9), deposed during examination-in-chief that: -

"---Stated that on 21.12.2009 I was posted as ASI/IO in Police Station Kharian Sadar. On the same day, on receiving the information of occurrence, I along with other police officials reached place of occurrence in village Khunan where complainant Maqsood Bibi appeared before me and got recorded his statement about the occurrence which I reduced into writing which was read over to her and she admitting it correct thumb marked the same as a token of correctness---"

It creates doubt, that who prepared the Fard Bayyan (Exh. PA). Mst. Maqsood Bibi, the complainant (PW-1), stated during cross-examination that when police reached the place of occurrence, they at once recorded her statement and then made an investigation/inquiry. Mst. Maqsood Bibi, the complainant (PW-1), deposed during cross-examination that: -

"---Police reached the place of occurrence recorded statements and conducted other proceedings and after 5/10 minutes they took the dead body of Babra with them on a white colour vehicle Dala. I do not know who went with dead body of Babra---"

Sohail Amjad (PW-2), son of the deceased, deposed during cross-examination that: -

"---Police left the place of occurrence after 90/120 minutes---"

The dead body of Barbra deceased was escorted to the THQ, Kharian, for autopsy by Yasir Iqbal 2331-C (PW-5) on 21.12.2009. Yasir Iqbal 2331-C (PW-5) deposed during cross-examination that:-

"---I escorted the dead body of Babra deceased from her village Khunan. I reached there at 6.00 AM. I remained there at place of occurrence about 30 minutes. We came to Tehsil Headquarter Hospital, Kharian on vehicle/Dala-Shahzore. I escorted the dead body along with 3/4 female whose name are not known to me. We reached at Tehsil Headquarter Hospital, Kharian at 7.00/7.30 AM. I remained in Tehsil Headquarter Hospital, Kharian till 2.30 PM---Dead body was sent to dead house at 7.30 AM---It is correct that four females who escorted the dead body were neither examined by the IO nor their statements were recorded under Section 161 Cr.P.C-"

Muhammad Khan Ranjha, S.I. (PW-9)-investigating officer, deposed during examination-in-chief that: -

"---I send the dead body for postmortem examination along with police papers to Tehsil Headquarter Hospital, Kharian under the escort of Yasir Iqbal 2331-C---"

Muhammad Khan Ranjha, S.I. (PW-9)-investigating officer had not stated the names of family members who went with the dead body of Babra Bibi-the deceased to identify her dead body. In the column of the brief history of inquest report (Exh. PF), the names of witnesses accompanying the dead body to identify the dead body were also not given. Zafer Iqbal (PW-3) deposed that he and Iftikhar Hussain (given up PW) identified the dead body of Babra Bibi-the deceased before and after the postmortem examination. Zafer Iqbal (PW-3) deposed during examination-in-chief that: -

"---We reached at Tehsil Headquarter Hospital, Kharian for postmortem at about 10.00 AM. We remained in Tehsil Headquarter Hospital, Kharian till 2.00/2.30 PM. Dr. started postmortem examination at about 2.00/2.30 PM---We left our village Chailanwala at about 8.30 AM boarding on public vehicle/Bus. I do not remember how long it take to reach Tehsil Headquarter Hospital, Kharian---I and Babra Bibi deceased belong to same village. We both belong to Gujjar caste."

1. It is strange that at the time and place of occurrence, the nephew of Mst. Maqsood Bibi, the complainant (PW-1), namely Atif Inayat (given up PW), was present, but he has not accompanied the dead body of Babra Bibi-the deceased. In our social setup, persons with no blood relation cannot see females after death. In the presence of family member Atif Inayat (given up PW), Zafer Iqbal (PW-3) was called from Chailanwala, and he boarded public transport at about 08:30 a.m and went to Tehsil Headquarter Hospital, Kharian at about 10: a.m. The deposition of Zafer Iqbal (PW-3) reveals that he (PW-3) belongs to the same village and caste to which Babra Bibi belonged. He (PW-3) has not stated his relationship with Babra Bibi. The unexplained discrepancy in the timings recorded in the inquest report (Exh. PF) must be considered. It is the prosecution's version that the death information was received at 06:00 a.m., but column No. 3 of the inquest report revealed that the date and time of receiving information of death were 21.12.2009 at 04:00/05:00 a.m. As per the prosecution case, fard Bayan (Exh. PA) was written at 06:00 a.m., and in column No.4 of the inquest report, names of the persons who identified the dead body at the time of the inquest mentioned Zafer Iqbal (PW-3) and Iftikhar Hussain (given up PW). If it was so, it was required to be explained by Muhammad Khan Ranjha, S.I. (PW-9)-investigating officer, by plausible evidence on the record as to how the inquest was undertaken at 04:00/05:00 a.m. in the presence of Zafer Iqbal (PW-3), who was called from Chailanwala and proceeded at about 08:30 a.m. and directly went to THQ Hospital. Muhammad Khan Ranjha, S.I. (PW-9)-investigating officer deposed that on 21.12.2009 received the information of occurrence in village Khunan. After that, he (PW-9), along with other police officials, proceeded to the place of occurrence. After that, he (PW-9) recorded Fard Bayan (Exh. PA) and after that, prepared an inquest report (Ex. PF) and an injury statement (Ex. PG) and entrusted the dead body of Babra Bibi-the deceased, to Yasir Iqbal 2331-C (PW-5) for taking to the mortuary for postmortem examination. If Muhammad Khan S.I. (PW-9)-investigating officer, reached the place of occurrence upon receiving information, then the complainant had met with her and recorded Fard Bayan (Exh. PA) and he prepared an injury statement (Ex. PG). On perusal of the injury statement (Exh. PG), it reveals that space was left blank after mentioning "بنام" and it reveals that till preparation of the injury statement (Ex. PG), Fard Bayan (Exh. PA) was not prepared. We have also perused the Inquest Report (Exh.PF). Under Column No. 24 of the Inquest Report (Exh. PF), a sketch plan of where the dead body is found is not given. The investigating officer had not prepared a drawing of where the dead body was lying and its condition but left it blank. The conduct of the I.O. and his investigation of the case is also not above board. The First Information Report was recorded at 06:30 a.m. vide FIR (Exh. PC). Strangely enough, Muhammad Hanif 3432/Constable, who delivered the carbon copy of FIR (Exh. PC) and original complaint (Exh. PA) to Muhammad Khan Ranjha, S.I. (PW-9)-investigating officer at village Noonanwali, was not cited as the prosecution witness. Muhammad Khan Ranjha, S.I. (PW-9)-investigating officer deposed during examination-in-chief that: -

"---Muhammad Hanif 3432-C met me at village Noonanwali and he handed over to me the carbon copy of FIR and original complaint. I attached the said documents with the police file. After the postmortem examination Yasir Iqbal 2331-C, Zafar Iqbal, and Iftikhar Hussain met me in the Police Station Kharian Sadar---"

It means the prosecution took all this time for due deliberations and consultations to find convenient eye-witnesses of the occurrence. It has also been noted that the two eye-witnesses are near relatives of the deceased, as has been admitted by the prosecution witnesses themselves. Mst. Maqsood Bibi, the complainant (PW-1), is the mother of the deceased, and Sohail Amjad (PW-2) is the son of the deceased. Further, Mst. Maqsood Bibi, the complainant (PW-1), belongs to the village of Chailianwala. At the same time, Sohail Amjad (PW-2) and Babra Bibi (deceased) belong to the village Khunan. Mst. Maqsood Bibi (PW-1)-the complainant deposed during cross-examination that: -

"---I left village Chailianwala before Maghrab prayer for village Khunan. I reached village Khunan by motorcycle. Darkness had been prevailed when I reached village Khanan but I can not tell the exact time. When we reached Babra was busy in cooking---"

During cross-examination, Sohail Amjad (PW-2) deposed that her maternal grandmother and Atif PW reached their house after the evening on the bike. At the time of the murder of his mother, his age was 9/10 years. Maqsood Bibi (PW-1)-the complainant deposed during cross-examination that: -

"---Accused Asjid called Babra deceased by knocking of door at about 4/5.00 am. It is correct that knocking of door is not mentioned in my statement Ex.PA. I awaked up by knocking of door., I have stated the above mentioned fact in Ex.PA. Confronted with Ex.PA where it is mentioned that Babra deceased went outside and we awaked up---it is correct that it is not mentioned in Ex.PA that accused Asjid called Babra loudly---"

Contrary to Maqsood Bibi (PW-1)-the complainant, Sohail Amjad (PW-2), son of the deceased, deposed during cross-examination that: -

"---Month of December is usually cold and fogy. It was about 4/5.00 am when Asjad accused called my mother outside the room and I heard the voice of calling. I woke up due to voice of Asjad accused. It is correct that I have not stated in my statement under Section 161 Cr.P.C that I awoke up by the voice of Asjad accused rather it is mentioned in same that I awoke up when my mother went out from room---"

Maqsood Bibi (PW-1)-the complainant deposed during cross-examination that: -

"---One electric bulb was lightening in verandah where accused Asjad and Babra deceased were standing while another bulb was lightening where we Pws were standing. I have mentioned in my statement Ex.PA that electric light was lightening at relevant time---"

Contrary to Maqsood Bibi (PW-1)-the complainant, Sohail Amjad (PW-2), son of the deceased, deposed during cross-examination that: -

"---It is correct that lightening of electric Bulbs at relevant time is not mentioned in my statement under section 161 Cr.P.C---"

Looking at these facts, we are of the opinion that the prosecution has withheld the true genesis of the occurrence. On perusal of the postmortem examination report (Exh. PM) of Babra Bibi-the deceased. In column No.4, under the heading 'Abdomen,' Stomach and its contents-semi-digested food. Semi-digested food was found, meaning thereby that the deceased had taken a meal 2 or 3 hours before being murdered. Sohail Amjad (PW-2), son of the deceased, deposed during cross-examination that: -

"---We have dinner at about 8/9.00 pm-"

Maqsood Bibi (PW-1)-the complainant, Sohail Amjad (PW-2), son of the deceased, deposed during cross-examination that: -

"---On that day we had eaten potato and beans in dinner---"

As per Sohail Amjad (PW-2), they took a meal at 8/9 p.m. According to the post-mortem report, semi-digested food was found; thus, the time of occurrence becomes doubtful. A perusal of FIR (Ex. PC) reveals that the same was lodged at 6:30 a.m. on 21.12.2009, and Dr. Adeeba conducted postmortem examination at 02:20 p.m. on the same day; she did not appear as a witness being abroad. The postmortem examination report (Exh. PM) was proved by Dr. Amjad, who appeared as a secondary witness. The contents of the postmortem examination report (Exh. PM) reveal that the dead body was received in the dead house on 21.12.2009 at 2:00 p.m., and complete documents from police were received at 2:20 p.m. The autopsy was conducted at 2:20 p.m. Autopsy was conducted after about seven hours and fifty minutes from the time of registration of FIR. The prosecution did not explain the delay in conducting the postmortem examination. The fact, however, remains that the post-mortem examination was delayed for seven hours and fifty minutes. Considering all these facts, this court has no hesitation in concluding that the prosecution has not been able to prove on record that the FIR was recorded at the claimed time. The Hon'ble Supreme Court of Pakistan, in the case of "Irshad Ahmed v. The State" (2011 SCMR 1193), held that: -

"We have further observed that the post-mortem examination of the dead body of Shehzad Ahmed deceased had been conducted with a noticeable delay and such delay is generally suggestive of a real possibility that time had been consumed by the police in procuring and planting eye-witnesses and in cooking up a story for the prosecution before preparing police papers necessary for getting a post-mortem examination of the dead body conducted."

Delay in lodging the first information report often results in consultation and deliberation, which is a creature of an afterthought. The prosecution failed to explain the delay in reporting the incident and the delay in conducting a post-mortem examination of the dead body of Babra Bibi-the deceased. Hence these circumstances raise considerable doubt regarding the veracity of the case and suggests delay in reporting the incident in lodging the first information report which is fatal to the prosecution's case.

1. Another aspect of the case is a conflict between the ocular and medical evidence. Maqsood Bibi (PW-1)-the complainant deposed during examination-in-chief that: -

"---Meanwhile Asjad Mehmood accused present in the court made 3 fire shots with his rifle which landed on the belly and one fire hit on her chest. All fires went through and through---"

Contrary to the above, Maqsood Bibi (PW-1)-the complainant, deposed during cross-examination that: -

"---We were standing near Babra at relevant time that's we witnessed that fire shots were through and through---"

Sohail Amjad (PW-2) deposed during cross-examination that: -

"---Three fire shots were made by the accused. It is correct that I have not mentioned in my statement under section 161 Cr.P.C that three fires shots were made by Asjad accused. Two fire shots were landed on belly and one fire shot was landed on the chest of my mother. It is correct that I have not mentioned in my statement under section 161 Cr.P.C that how many fire shots were landed on belly and how many on the chest. My mother fell on ground by back after receiving fire shots"

The postmortem examination report (Exh. PM) reveals that the deceased received three firearm injuries. Injury No, 1-a went through and through, whereas injuries 2-a and 3-a were from downward to upward. In the prosecution's case, the accused shot a burst, and all fire shots landed on the deceased's body; after that, Babra Bibi fell. Under the head external examination sub-head examination of clothes, the postmortem report (Exh. PM) reveals that the deceased's shirt was torn. The prosecution's evidence is silent on how the deceased's shirt was torn and who did so. Even the lady doctor has not observed corresponding holes on the shirt. The distance from which the accused fired upon the deceased becomes irrelevant because the investigating officer had not mentioned the distance between points A, B, and C in the unscaled site plan (Exh. PI). The scaled site plan (Exh. PJ) was prepared on 25.12.2009, wherein the distance between different points was given. Muhammad Khan Ranjha S.I. (PW-9)-investigating officer deposed during examination-in-chief that: -

"---it is correct that in the un-scaled site plan of the place of occurrence Ex.PJ, I have not given any note that this map was prepared on the pointation of complainant and Pws. I have not mentioned the inter-se distance among the points "A" "B" "C". I have not mentioned in the map regarding the installation of any Bulb at the place of occurrence. I have not taken into possession any such Bulb from the place of occurrence---"

The conflict between medical evidence and ocular testimony was so severe that it traveled to the roots of the matter and knocked the bottom of the prosecution's case against the accused. There was an apparent conflict between the medical evidence and ocular testimony of chance, and an interested witness incapable of being believed.

1. The motive set up by the prosecution in the Fard Bayyan (Exh.PA) and FIR (Exh.PC) is that Babra Bibi-the deceased made the call to Mst. Maqsood Bibi (PW-1)-the complainant on 20.12.2009 and informed her that there were usually domestic quarrels between the deceased and the accused; coming to know of the occurrence, she and her bhanja Atif Anayat went to the house of Babra Bibi-the deceased situated at Khonan. After that, Mst. Maqsood Bibi (PW-1)-the complainant, and Sohail Amjad (PW-2), eye-witnesses, have improved their statements before the police. The defence has brought on record the contradictions in the evidence of Mst. Maqsood Bibi (PW-1)-the complainant, and Sohail Amjad (PW-2), eye-witnesses. Mst. Maqsood Bibi (PW-1)-the complainant deposed during cross-examination that: -

"---Motive behind the occurrence was that Amjad was sending money to Asjad accused, but after his marriage he used to live separately with his wife and used to send money to Mst. Babra that's why a quarrel existed between Babra, Amjad and Asjad accused. It is correct that I have not mentioned the sending of money to accused Adjad and afterward to Babra deceased in my statement Ex.PA. I always remained acquainted with quarrel of Amjad, Babra and Asjad accused through Amjad or Babra deceased, Babra deceased made a telephonic call to me on 20.12.2009 at about evening time and we remained talking for about 5/10 minutes. I can not tell the cell number from which I received telephonic call of Babra deceased even I can not tell my own number. Babra informed me that we have a quarrel; with Asjad accused and you people should come to settle the dispute. It is correct that I have not stated in Ex.PA that you people should come to settle the dispute. When I was talking to Babra on 20.12.2009 on a telephonic call, PW-Atif was present there and same fact is not mentioned in Ex.PA---I have not got recorded in Ex.PA the time when Babra made a telephonic call to me---"

Sohail Amjad (PW-2) deposed during cross-examination that: -

"---Quarrel took place between my mother and Asjad accused regarding money in my presence. On the day of occurrence I got recorded my statement under section 161 Cr.P.C before police. I do not remember whether I got recorded in my statement under section 161 Cr.P.C that a quarrel took place between my father and Asjad accused. I do not remember when my father went back to France prior to this occurrence. I got recorded in my statement under section 161 Cr.P.C that my mother made a telephonic call to my maternal grandmother regarding the quarrel between her and Asjad accused. Said telephonically call was made in my presence before Asar prayer (before Degar-Waila) and I have not stated this fact in my statement under section 161 Cr.P.C. The telephonic call between my mother and maternal grandmother lasted for 10/15 minutes. My mother asked my maternal grandmother that Asjad accused is quarreling with us and you people should come to settle the dispute an d same fact is not mentioned in my statement under section 161 Cr.P.C. I do not remember the mobile numbers of my mother and my maternal grandmother. My maternal grandmother and Atif Pw reached our houses after evening on bike. During the days of occurrence I was student of 4th class but I do not remember the name of my school. It is correcr that I have not mentioned in my statement under section 161 Cr.P.C that my mother made a telephonic call to my grandmother in my presence---"

Thus, the defence has brought the material contradiction in the evidence of Mst. Maqsood Bibi (PW-1)-the complainant, and Sohail Amjad (PW-2), eye-witnesses, on record. In the circumstances, we cannot avoid the conclusion that the motive, as alleged, was an afterthought and does not inspire confidence, and therefore the same deserves to be discarded.

1. The recovery of the rifle (P-5) allegedly affected by the appellant on 24-03-2017 is of no consequence to the prosecution case when medical evidence is at variance with the ocular account. The report of Forensic Science Laboratory, Punjab, Lahore (Exh. PQ) is only to the effect that the weapon allegedly recovered from the accused/appellant was in mechanical operating condition. So, the recovery of the weapon from the accused is of no consequence.

2. The murder was committed in the appellant's house, and the appellant was not there after the occurrence. As far as the absconding of the appellant is concerned, the evidence taken against the appellant is that he had absconded after the incident. Muhammad Khan Ranjha S.I. (PW-9)-investigating officer deposed during examination-in-chief that: -

"---I searched accused present in the court for many times but in vain. On 07.01.2010 I made the application Ex.PK for non-bailable warrants of arrest of accused Asjad and non-bailable warrants of arrest was handed over to Muhammad Arshad 343-C for execution. Non-bailable warrants of arrest of accused could not be executed. After recording the statement of Muhammad Arshad 343-C before learned Area Magistrate I made the application Ex.PL for proclamation of the accused. Proclamation was handed over to Muhammad Arshad 343-C for execution. On 27.01.2010 I recorded the statement of Muhammad Arshad 343-C for execution regarding the execution of non-bailable warrants of arrest and proclamation of accused present in the court. On 29.01.2010 I got prepared the incomplete report under section 173/512 Cr.P.C through SHO and declared the accused present in the court as P.O---"

2024 Y L R 1915

[Lahore]

Before Anwaarul Haq Pannun, J

Akhtar Ali---Appellant

Versus

The State and others---Respondents

Criminal Appeal No. 15191 of 2011, decided on 7th May, 2024.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of two days in lodging FIR---Consequential---Accused was charged that he along with his co-accused committed the murder of the maternal grandfather of the complainant by firing---Alleged occurrence took place on 01.08.2016 at about 9.00 a.m. whereas the matter was reported to the police with an inordinate delay of two days on 03.08.2016---Distance between the place of occurrence and Police Station was about 09 K.M.---Complainant was maternal grand-son whereas a witness was nephew of the deceased---Witnesses and the accused were residents of the same locality and already known to each-other, as such, in absence of any chance of misidentification of the accused persons, there existed no reason to delay, the registration of FIR---Explanation for inordinate delay of two days in lodging the FIR that the complainant remained busy in the treatment of his maternal grand-father/deceased was neither plausible nor convincing as another witness, who was nephew of the deceased, could have reported the incident to the police well within time in absence of the complainant---Appeal against conviction was allowed accordingly.

Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Rafaqat Ali alias Phakoo and others v. The State and others 2021 PCr.LJ 360; Bilal Ahmad v. The State and another 2022 MLD 1577; Mst. Aziz Mai v. The State and others 2022 YLR 424 and Ahmad Nawaz and others v. The State and others 2016 PCr.LJ 1267 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---Presence of the witnesses at the spot at the time of occurrence doubtful---Accused was charged that he along with his co-accused committed murder of the maternal grandfather of the complainant by firing---Complainant during the course of cross-examination admitted that at the time of Medico-Legal Certificate injured was in his senses---Surprisingly despite capacity/ stability, victim did not opt to record his statement to the Investigating Officer---Police also did not make any effort to record his statement for reasons best known to it---Thus the noticeable/significant delay in lodging of the FIR; non-recording of statement of the injured (now deceased) who was firstly taken to the Police Station and then for Medico-Legal Certificate when according to medical evidence he was vitally stable at the time of Medico-Legal Certificate; familiarity of the parties to each other being residents of the same vicinity, pointed out to the possibility that the occurrence remained un-witnessed and time had been consumed in procuring and planting eye-witnesses and in cooking up a story for the prosecution---Furthermore, according to the Medico Legal Certificate of injured, (now deceased), it was the police, who had brought him to THQ Hospital for his medical examination on 01.08.2016 at 10.30 a.m. (the alleged day of occurrence)---As per invariable practice whoever brought an injured to the hospital, whether relative or friend, his name and particulars were mentioned in a specific column, meant for such purpose but in this case none of the witnesses or any other else were cited as companion of the injured (now deceased)---Moreover, Medical Officer, who conducted Medico-Legal Certificate, during his cross-examination, stated that when injured came in the hospital he was not accompanied by any private person---Hence, in view of such position, the presence of eye-witnesses at the spot at the relevant time of occurrence seemed to be doubtful---Appeal against conviction was allowed accordingly.

(c) Criminal trial---

----Medical evidence---Scope---Medical evidence may confirm the ocular account with regard to the receipt of injury and kind of weapon, but it can not connect the accused with the commission of crime.

Israr Ali v. The State 2007 SCMR 525 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---Recovery of weapon of offence---Inconsequential---Accused was charged that he along with his co-accused committed murder of the maternal grandfather of the complainant by firing---Record showed that pistol .30-bore recovered on pointing out of the accused which was seized by the Investigating Officer through recovery memo duly attested by the witnesses, was inconsequential as no empty was seized by the Investigating Officer from the place of occurrence---Even otherwise the recovery was just a corroboratory piece of evidence and when other incriminating prosecution's evidence had been disbelieved/discarded, the same could not be relied upon in case of capital punishment---Appeal against conviction was allowed accordingly.

(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---Motive not proved---Accused was charged that he along with his co-accused committed murder of the maternal grandfather of the complainant by firing---According to the prosecution, the motive behind the occurrence was that one day prior to the occurrence, the accused persons entered in the house of the complainant and gave beating to him and in that regard, complainant had moved an application at Police Station and due to said grudge, the accused had committed the alleged occurrence---Motive was never conclusive proof of guilt of an accused rather just a factor for convincing the mind of a Court deciding the crime while keeping in view the rest of the evidence brought on record---Motive set up by the prosecution alone could not come to rescue the sinking boat of the prosecution---Appeal against conviction was allowed accordingly.

(f) Criminal trial---

----Benefit of doubt---Location---Scope---Conviction must be founded on unimpeachable evidence and certainty of guilt---Any doubt arising in the prosecution case must be resolved in favour of accused.

Muhammad Khan and another v. State 1999 SCMR 1220 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---Single instance giving rise to a reasonable doubt in the mind of the Court entitles the accused to benefit of doubt not as a matter of grace but as a matter of right.

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Aasim Sohaib, Asghar Ali Gill and Muhammad Aftab Fareed Janjoa for Appellant.

Fakhar Abbas, Deputy Prosecutor General and Sirbuland Khan, Assistant Attorney General for the State.

Akhtar Hussain Bhatti for Complainant.

Date of hearing: 7th May 2024.

Judgment

Anwaarul Haq Pannun, J.---The appellant Akhtar Ali, through this criminal appeal under Section 410 of Cr.P.C., has called in question the vires of judgment dated 18.02.2021, passed on conclusion of a trial in a private criminal complaint [which is based upon case/FIR No.635/2016 dated 03.08.2016, offence under Sections 324/34/302, P.P.C., registered at Police Station Hujra Shah Muqeem, Tehsil Depalpur, District Okaral under Sections 302/34, P.P.C., titled as "Aamir Hassan v. Akhtar Ali and others", whereby the learned Additional Sessions Judge, Depalpur while acquitting the co-accused Muhammad Aslam, Liaqat Ali, Shakeel Ahmad, has convicted and sentenced the appellant Akhtar Ali as under:-

Under Section 302(b), P.P.C.

Sentenced to undergo imprisonment for life along compensation Rs.4,00,000/- payable to the legal heirs of deceased Muhammad Sharif under Section 544-A, Cr.P.C and in default thereof to further undergo SI for six months. Benefit of Section 382-B, Cr.P.C is extended to the convict.

1. The prosecution's story, as embodied in private complaint (Exh.PC) filed by Aamir Hassan (PW-2) is that on 01.08.2016 at about 9.00 a.m., when the complainant along with his maternal grandfather Muhammad Sharif, proceeding towards Hujra Shah Muqeem, reached near Rajba Pul in the area of Kalasen peerwal, by a Car, registration No. LEF 1419, suddenly, appellant Akhtar while armed with pistol .30 bore, Muhammad Aslam armed with Kalashnikov like rifle, Liaqat Ali and Shakeel Ahmad armed with repeater .12 bore, ambush on gun point, tried to stop the complainant's car, but the complainant, accelerated it, whereupon Liaqat Ali accused statedly raised lalkara, exhorting his co-accused to teach a lesson to the complainant for lodging an application against them at Police Station Hujra Shah Muqeem, whereupon, Akhtar, the appellant, made a straight fire with his pistol .30 bore hitting on right side of back of Muhammad Sharif, Muhammad Aslam accused made fire with his rifle hitting below number plate of car, Liaqat Ali and Muhammad Shakeel accused made aerial firing with their respective weapons. Besides the complainant, Muhammad Nawaz and Basharat Ali, the PWs had also witnessed the occurrence. The accused persons fled away while brandishing their weapons and making aerial firing. The motive behind the occurrence was that one day prior to this occurrence, the accused persons while making a house trespass, gave him beating and in this regard he had moved an application at Police Station and due to said grudge the accused persons had committed the alleged occurrence. The complainant along with PWs brought Muhammad Sharif injured to Police Station Hujra Shah Muqeem, obtained docket and shifted him to RHC Hujra Shah Muqeem and then to the Jinnah Hospital, Lahore where on 15.08.2016 he succumbed to the injuries. The Investigating Officer, according to complainant, did not conduct the investigation fairly and justly, therefore, being dissatisfied with the investigation, he had to file a private complaint.

2. The learned trial court indicted the appellant and co-accused (since acquitted), to which they pleaded non-culpabilis and claimed trial. The prosecution in order to prove its case has produced as many as 05 prosecution witnesses (PW-1 to PW-5) and 09 CWs (CW-1 to CW-9). The learned Prosecutor after tendering reports of PFSA as Exh:PL to Exh:PN, closed the prosecution's evidence. The appellant along with co-accused when examined under Section 342, Cr.P.C, once again reiterate their innocence, however, they did not opt to record their statements under Section 340(2), Cr.P.C, or to produce evidence in their defence. On conclusion of the trial, learned trial Judge while acquitting the co-accused Muhammad Aslam, Liaquat Ali and Shakeel Ahmad, convicted and sentenced the accused-appellant as aforesaid.

3. Arguments heard. Record perused.

4. The prosecution's case has already been described in paragraph No.2 of the judgment which needs no reiteration. The accused-appellant allegedly made a fire shot with his pistol .30 bore, hitting on right side of back of Muhammad Sharif, who became injured. Later on, on 15.08.2016, Muhammad Sharif, the then injured succumbed to the injury at Jinnah Hospital, Lahore. The alleged occurrence took place on 01.08.2016 at about 9.00 a.m. whereas the matter was reported to the police with inordinate delay of two days on 03.08.2016. The distance between the place of occurrence and police Station is about 09 K.M. Aamir Hassan, complainant (PW-2) is maternal grand-son whereas Basharat Ali is nephew of the deceased Muhammad Sharif. The deceased, PWs and the accused are residents of the same locality and already known to each-other, as such, in absence of any chance of misidentification of the accused persons, there existed no reason to delay, in the facts of the case, in registration of FIR. The explanation for inordinate delay of two days in lodging the FIR that the complainant remained busy in the treatment of his maternal grand-father Muhammad Sharif (deceased) is neither plausible nor convincing as another PW Basharat Ali (PW-3), who is nephew of the deceased Muhammad Sharif, could have reported the incident to the police well within time in absence of the complainant (PW-2). It has been held by the apex Court in case titled "Mehmood Ahmad and 3 others v. The State and another" (1995 SCMR 127) that:-

"Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate."