YLR 2025 Judgments

2025 Y L R 49

[Federal Shariat Court]

Before Dr. Syed Muhammad Anwer and Ameer Muhammad Khan, JJ

Sultan Ali Khan---Appellant

Versus

The State and another---Respondents

Jail Criminal Appeal No. 04-I of 2024, decided on 23rd October, 2024.

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

----Ss. 10 & 11---Zina or zina-bil-jabr, kidnapping, abducting or inducing woman to compel for marriage, etc.---Appreciation of evidence---Benefit of doubt---Evidence of Waj-takkar---Accused was charged for kidnapping the daughter of the complainant for committing zina with her---Complainant nominated the appellant on the basis of information extended to him by two witnesses---One of the witnesses had been given up by the prosecution as unnecessary---Both the said witnesses were brothers inter-se and were maternal uncle of abductee---Said abandoned witness committed murder of the abductee and her father got the case registered against him under S.302, P.P.C---Later on the parties reached a compromise inter-se---Other witness had not adduced any reason for his presence at the spot where he claimed seeing appellant along with his co-accused persons, taking along abductee in a coach forcibly---In this case no reason whatsoever had been advanced by the witness, and no specific or approximate time of his presence at the spot had been advanced in evidence---Said witness stated that he did not know the accused prior to registration of the case and admitted that his brother was alleged for the murder of abductee---Said witness also admitted that he had come to the Court with complainant, meaning thereby that they did not develop strained relationship inter-se over the murder of abductee---Appeal against conviction was allowed, in circumstances.

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

----Ss. 10 & 11---Zina or zina-bil-jabr, kidnapping, abducting or inducing woman to compel for marriage, etc.---Appreciation of evidence---Benefit of doubt---Unnatural conduct of witness of Waj-takkar---Accused was charged for kidnapping the daughter of the complainant for committing zina with her---Record showed that the conduct of witness of Waj-takkar was not acceptable---When he claimed that the culprits were not known to him then the source of revelation of their names to him while extending information to complainant remained a mystery throughout the prosecution evidence, and the prosecution was bound to provide plausible evidence of waj-takkar---In this case the conduct of the witnesses due to the murder of abductee with a collusive inference made their deposition doubtful and unnatural---Prosecution failed to adduce reliable piece of evidence in the form of waj-takkar; had they seen the abductee, i.e., their niece, with the appellant and others in the midnight their conduct would be entirely different at the spot, therefore, on the face of it, it seemed a cooked up story---Appeal against conviction was allowed, in circumstances.

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

----Ss. 10 & 11---Zina or zina-bil-jabr, kidnapping, abducting or inducing woman to compel for marriage, etc.---Appreciation of evidence---Absconsion of accused---Accused was charged for kidnapping the daughter of the complainant for committing zina with her---Abscondence of the accused was a question of fact and the prosecution was bound to prove the same in the trial---Inspector claimed that on 19.11.2004 he submitted an application before the Area Magistrate for obtaining non-bailable warrants of arrest of appellant, and non-bailable warrants of arrest were issued against him he then on 26.11.2004 vide an application obtained proclamations under S.87, Cr.P.C, of the appellant---During his statement, witness sated that documents, applications, warrants of arrest and proclamations regarding which he gave evidence were not with him at present time and were also not in the file---Therefore when the prosecution failed to produce any required evidencing comprising of warrants and the proclamations, the fact of the appellant/ accused absconding stood not proved---Appeal against conviction was allowed, in circumstances.

Arshad Zaman Kayani for Appellant.

Mirza Abid Majeed, Deputy Prosecutor General Punjab for the State.

Malik Awais Alam for the Complainant.

Date of hearing: 9th October, 2024.

Judgment

Ameer Muhammad Khan, J.---This appeal has been preferred through Jail Superintendent by the convict Sultan Ali Khan, the Superintendent Jail Mianwali forwarded the same to the Deputy Registrar Judicial Lahore High Court Lahore on 23.10.2023 within the limitation period of 60 days for filing the appeal against conviction and sentence, the superintendent proceeded under Rule 90 of the Pakistan Prison Rules and Section 420 of the Code of Criminal Procedure, 1898, provide procedure when appellant in jail according to which when the appellant is in jail he may present his petition of appeal and copies accompanying the same to the officer incharge in jail who shall there upon forward such petition and copies to the proper appellate Court. This appeal has been received from the Hon'ble Lahore High Court Lahore vide order dated 18.03.2024. The Superintendent Jail Mianwali had not forwarded this appeal to the proper appellate Court that is the Federal Shariat Court as provided under Section 20 Offence of Zina (Enforcement of Hudood) Ordinance, 1979, therefore, the delay cannot be attributed to the appellant beside that as per proviso provided in Rule 18 sub-clause (a) of the Federal Shariat Court Procedure Rules, 1981, this Court may for sufficient cause extend the period, therefore, forwarding this jail appeal by the Superintendent Jail to the High Court instead of the Federal Shariat Court is a sufficient cause for extension of the time period therefore the delay is hereby condoned.

1. As per Rule 19 of the Federal Shariat Court (Procedure Rules),1981, the present appellant has been provided a counsel for his defence on state expenses.

2. This jail appeal has been preferred against the conviction and sentence for life imprisonment, RI with fine of Rs. 1,00,000/- and in default thereof to further undergo six months Simple Imprisonment vide judgment dated 04.10.2023 recorded by Mr. Noor Muhammad Bismal Additional Sessions Judge, Mialwali with benefit of Section 382-B, Cr.P.C.

3. PW-1 Haji Dost Muhammad lodged the FIR on 10.09.2004 at 02:30 p.m regarding the occurrence taking place on the midnight on 03/04.09.2004 stating therein that his daughter Shamim Akhtar was married to Muhammad Ramzan about 15/20 days of the lodging of the FIR and rukhsati has not yet been taken place, the appellant Sultan Ali Khan had visiting terms with him who developed illicit relationship with the said daughter and on the mid night of 03/04.09.2004 when he had gone to irrigate his crops, on return to his house Shamim Akthar was not found present, he made a search when Muhammad Khan and Muhammad Iqbal sons of Muhammad Zaman interacted him and informed that they had seen his daughter when she was boarded in a coach along with Sultan Ali Khan, the appellant, Muhammad Iqbal and Muqrab the co-accused since acquitted while proceedings towards Quaidabad.

4. The present appellant was arrested by PW-4 Muhammad Sher ASI on 22.11.2022 and he submitted the report under Section 173, Cr.P.C, thereafter the formalities were completed and on 28.01.2023 the present appellant was charged sheeted for the abduction of said Shamim Akhtar for commission of illicit intercourse and applied sections 10/11 of the Offence of Zina (Enforcement of Hudood) Ordinance, the accused denied the charge and claimed trial.

5. The prosecution evidence was summoned and recorded the gist of which is as under.

6. PW-1 Haji Dost Muhammad is the first informer who reiterated the story as mentioned in the facts beside that he stated that her daughter Shamim Akthar herself reached home after escaping from the custody of the accused after 5/6 days of the occurrence he produced her before the police where her statement was recorded under Section 161, Cr.P.C and also was medically examined, after ¾ days returned to home she was murdered by her maternal uncle namely Muhammad Khan by firing upon her. He lodged the FIR for murder of her said daughter before the Police Station Wan Becharan. PW-2 Muhammad Iqbal is the witness of Waj-takkar who claimed seeing the Shamim Akthar Abductee on the midnight of occurrence while he and his brother Muhammad Khan were present at Adda Shadia. PW-3 Ghulam Shabbir Inspector, this PW on 19.11.2004 obtained non bailable warrants of arrest of Sultan Ali Khan Appellant and on 26.11.2004 obtained proclamations under Section 87 of Criminal Procedure Code of the said Sultan Ali Khan. PW-4 Muhammad Sher ASI, this PW arrested Sultan Ali Khan on 22.11.2022 and produced and forwarded the report under Section 173, Cr.P.C. PW-5 Dr. Raheela Tariq Niazi medically examined Shamim Akhtar abductee on 14.09.2004 while she was posted as WMO at RHC Wan Bacharan District Mianwali and proved the MLC Ex-PB and finally opined that act of sexual offence had been committed with Shamim Akthar vide her report Ex-PB/1 . PW-6 Atta Ullah, this PW recorded the FIR Ex-PA on 10.09.2004 while he was posted as Mohrar Wan Becharan and on 14.09.2004 he received a sealed parcels of swabs from Manzoor Ahmed SI, I.O since dead and got the same transmitted on 16.09.2004 through Raza Muhammad 572/C to office of Chemical Examiner Rawalpindi, this PW also claimed acquaintance with hand writing of Manzoor Ahmed SI and confirmed that the application for medical examination Ex-PC of Shamim Akhtar abductee, site plan of the place of occurrence Ex-PD, recovery memo. of swabs Ex-PE. On 08.07.2023 the learned prosecutor gave up Muzaffar Ali 239/C and Muhammad Raza 472/C being dead, on 05.08.2023 the learned ADPP for state gave up Shamim Akhtar abductee, Manzoor Ahmed SI being dead and PWs Zafar Hayat 428/C and Inayatullah 749/C as unnecessary and tendered the report the chemical examiner Ex-PF. Then on 12.09.2023 he gave up Muhammad Khan, Sher Muhammad and Munir Muhammad PWs as unnecessary and closed the prosecution case. On 15.09.2023 statement of the appellant/accused Sultan Ali Khan was recorded under Section 342 Cr.P.C, he did not opt for defence nor opted to appear his own witness for stating on oath in his defense as provided under Section 340(2), Cr.P.C.

7. Thereafter conviction and sentence was passed vide this impugned judgment, hence, this appeal.

8. Learned counsel for the appellant Mr. Arshad Zaman Kayani appointed on the state expenses contended that the burden to prove the charge was upon the prosecution and prosecution has failed to prove the charge against the appellant. The judgment suffers with mis-reading and non-reading of the evidence, the prosecution violated the procedures and the inadmissible evidence has been considered by the learned trial Court and passed the conviction and sentence without any legal justification and also tendered the written arguments. He further stated that appeal of the Sultan Ali Khan was well in time, but with the fault of the Superintendent District Jail Mianwali forwarded the same to the Hon'ble Lahore High Court violating the provision of Section 420 of the Cr.P.C, he also requested for condonation of the said delay.

9. On the other hand learned Deputy Prosecutor General with the assistance of Malik Awais Alam, Advocate for the complainant vehemently opposed the contentions and categorically stated that the accused was an absconder and the prosecution has succeeded to prove the charge against him without any shadow of doubt.

10. Arguments heard. Record perused.

11. Prosecution evidence hinges upon following pieces of evidence.

i. Abduction

ii. Waj-Takkar

iii. Abscondence

iv. Medical evidence

1. PW-1 Haji Dost Muhammad, father of abductee Shamim Akhtar nominated the present appellant/convict on the basis of information extended to him by Muhammad Iqbal PW-2 and Muhammad Khan PW. Muhammad Khan PW has been given up by the prosecution as unnecessary. Therefore, PW-2 Muhammad Iqbal is the only witness who advanced the evidence of waj-takkar.

2. It is in evidence that Muhammad Iqbal PW-2 and Muhammad Khan PW since given up are brothers inter-se, both are maternal uncles of Shamim Akhtar abductee. The said Muhammad Khan PW committed her murder on 20.09.2004 as per the FIR Ex-DA where in PW-1 Haji Dost Muhammad father of the abductee stated about the Shamim Akhtar that "after ¾ days of her return to home she was murdered by her maternal uncle Muhammad Khan and he got the case registered under Section 302, P.P.C., Police Station Wan Bechran. Later on the parties reached a compromise inter-se which by itself discloses their scheme.

3. PW-2 Muhammad Iqbal, the star witness of the prosecution has not adduced any reason for his presence on the midnight of ¾ September, 2004 at Adda Shadia, the Bus Stop where he claims seeing Sultan Ali Khan, the present appellant along with Muhammad Iqbal and Muqrrab both since acquitted accused along with one unknown person, taking along Shamim Akhtar abductee in a coach forcibly to Quaidabad.

4. The evidence of waj-takkar is considered a weak evidence and the prosecution has to prove on record plausibly the presence of the witnesses at the concurring place, in this case no reason whatsoever has been advanced by PW-2 Muhammad Iqbal, no specific or approximate time of his presence at the bus stop has been advanced in evidence. He stated that "he did not know the accused Sultan Ali Khan prior to registration of the case" he also admitted that his brother Muhammad Khan was alleged for the murder of Shamim Akhtar abductee, he also admitted that he had come to the court with Haji Dost Muhammad meaning thereby that they did not develop strain relationship inter-se over the murder of Shamim Akhtar.

5. The conduct of PW-2 Muhammad Iqbal is not acceptable when he claimed that the culprits were not known to him then the source of revelation of their names to him while extending information to Haji Dost Muhammad PW-1 remains a mystery throughout the prosecution evidence, the prosecution was bound to provide plausible evidence of waj-takkar, in this case the conduct of the PWs due to the murder of Shamim Akhtar with a collusive inference make their deposition doubtful and unnatural, the prosecution failed to adduce a reliable piece of evidence in the form of waj-takkar, had they seen the abductee, their niece with the appellant and others in the midnight their conduct would be entirely different at the spot, therefore, on the face of it, it seems a cooked up story.

6. Manzoor Ahmed SI was the Investigating Officer of this case who recorded the statement of Shamim Akhtar abductee under Section 161, Cr.P.C and appeared as PW-7 on 05.07.2005 in the previous trial of the co-accused and introduced the statement of Shamim Akhtar as Ex-PK as dying declaration. Manzoor Ahmed SI PW died before commencement of the instant trial but the prosecution in the present trial failed to adducehis evidence so preserved under Section 512, Cr.P.C read with Article 47 of the Qanun-e-Shahadat Order 1984 rather opted to adduce Attaullah 729/MHC as PW-6 for proving the hand writing and signatures of said Manzoor Ahmed SI since died and produced application Ex-PC for medical examination of Shamim Akhtar, the site plan of the occurrence Ex-PD and recovery memo. of the Swabs Ex-PE in evidence as recorded in the hand writing and signatures of said Manzoor Ahmed SI since dead. No other statement if recorded by the Manzoor Ahmed SI has been adduced in evidence and the learned prosecutor closed the prosecution case on 12.09.2023.

7. As per Section 353, Cr.P.C, the evidence has to be recorded in the presence of the accused, reproduced as under:-

"Evidence to be taken in presence of accused. Except as otherwise expressly provided, all evidence taken under Chapters XX, XXI, XXII and XXII-A shall be taken in the presence of the accused or when his personal attendance is dispense with, in presence of his pleader".

1. But Section 512, Cr.P.C provides the criteria and the manner for recording of evidence in absence of the accused and is an exception to the Section 353, Cr.P.C ibid.

2. In the previous trial of the co-accused namely Muhammad Iqbal and one other, Manzoor Ahmed SI was recorded as PW-7 on 05.07.2005 and stated about the recording of her statement under Section 161, Cr.P.C as Ex-PK. The prosecution opted to omit the statement of the abductee who had died after her statement was recorded and the Investigating Officer who had recorded her statement had also died subsequent to recording the statement.

3. The prosecution failed to adduce said evidence and did not submit for transposition of the said evidence into the present trial as per requirements of Section 512, Cr.P.C, the preserved evidence had the status of a substantive piece of evidence rather the prosecution opted for introducing secondary evidence as per Article 78 of the Qanun-e-Shahadat Order, 1984.

4. The question arises as to whether the prosecution could withheld the substantive piece of evidence deemed preserved in the previous trial in accordance with section 512, Cr.P.C and could opt for introducing secondary evidence and that in a casual manner. The answer is that the prosecution was bound to adduce available evidence of the prosecution witnesses under Section 512, Cr.P.C could be deemed as the best evidence in the circumstances.

5. Abscondence of the accused is a question of fact and the prosecution was bound to prove the same in this trial. PW-3 Ghulam Shabbir Inspector claimed that on 19.11.2004 while he was posted at Police Station Wan Bhachran he submitted an application before the Area Magistrate for obtaining non bailable warrants of arrest of Sultan Ali Khan appellant accused, non bailable warrants of arrest were issued against him, he then on 26.11.2004 vide an application obtained proclamations under Section 87, Cr.P.C of the said Sultan Ali Khan. During his statement this PW Ghulam Shabbir stated that "it is correct that documents that is applications, warrants of arrest and proclamations regarding which he gave evidence today, are not with me at present time and not in the file". As per Section 87(3), Cr.P.C:-

2025 Y L R 1869

[Federal Shariat Court]

Before Iqbal Hameedur Rahman, CJ

Lal Bux and another---Appellants

Versus

The State---Respondent

Criminal Appeals Nos. 04-K and 05-K of 2024, decided on 9th May, 2025.

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

----Arts. 3 & 4---Possession of wine---Appreciation of evidence---Benefit of doubt---Infirmities in the statements of witnesses---Accused were charged for having 72 bottles of wine---Contents of FIR revealed that three persons, who were riding on Qingqi Rickshaw allegedly transporting three cartons of wine of different quality, each containing 24 bottles, were arrested and nominated by the police party---Allegedly, driver of rickshaw, on signal by police to stop, tried to reverse the rickshaw, but nowhere it had been shown that the said driver had either been nominated in the FIR or had been arrested---Complainant, during cross-examination stated, that he had not mentioned in the FIR about the person who was riding the rickshaw---Said fact was also confirmed by eye-witness during his cross-examination---Moreover, there was nothing on record to reveal the ownership of the Qingqi Rickshaw, wherefrom the alleged case property of three cartons of wine were recovered---Thus, factum of driver of the rickshaw and its ownership, suppressed by the complainant and eye-witness of the occurrence, appeared to be intentional and deliberate, casting a serious doubt on the veracity of their statements---Circumstances established that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Arts. 3 & 4---Criminal Procedure Code (V of 1898), S. 103---Possession of wine---Appreciation of evidence---Benefit of doubt---Non-associating private witnesses at the time of arrest and recovery---Effect---Accused were charged for having 72 bottles of wine---Record showed that at the time of alleged recovery of wine, no independent witness from the public was joined to act as witness of the alleged recovery nor any reason for non-joining of such independent witness from the place of incident had been given---Investigation Officer during his cross-examination had admitted that place of incident was busy road---Non-joining of independent witness, when place of incident was admitted to be a busy place, in absence of any reason, made the recovery doubtful being in violation of the S.103, Cr.P.C---Circumstances established that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt---Appeal against conviction was allowed, in circumstances.

State through Advocate General, Sindh v. Bashir and others PLD 1997 SC 408 rel.

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

----Arts. 3 & 4---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of wine---Appreciation of evidence---Benefit of doubt---Withholding material witness---Effect---Accused were charged for having 72 bottles of wine---Perusal of report under S.173, Cr.P.C., revealed that the prosecution had cited total of number of eight witnesses out of whom only three witnesses had been produced at the trial---Two witnesses being material witnesses of safe custody and transmission of the case property were not produced without any lawful explanation---Similarly, a Police Constable, Duty Police Constable and Inspector/SHO, who were also cited as witnesses in the police report under S.173, Cr.P.C., had not been produced at the trial nor any statement had been rendered regarding their being unnecessary or having been won over or declared hostile---Prosecution closed its side by making statement on 27.07.2024---In such circumstances, it would be considered that prosecution withheld material evidence, thus an adverse inference could be drawn against the prosecution under Art. 129(g) of the Qanun-e-Shahadat, 1984---Failure to produce material witnesses, without any cogent reason, was deemed to be fatal and created serious dent to the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt---Appeal against conviction was allowed, in circumstances.

Lal Khan v. The State 2006 SCMR 1846 rel.

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

----Arts. 3 & 4---Possession of wine---Appreciation of evidence---Benefit of doubt---Safe custody and safe transmission of recovered substance to laboratory for analysis not proved---Accused were charged for having 72 bottles of wine---Prosecution had substantially failed to prove the safe custody and transmission of the case property to the Office of Chemical Examiner---In that regard, fatal blow had been caused to the case of prosecution by non-production of WHC to whom case property was handed over vide entry No.99 of register 19 by the Investigation Officer---In addition to that, non-production of Police Constable, at the trial, who was handed over the case property, for onward transmission to the Office of Chemical Examiner on 23.10.2023 also created further dents to the case of prosecution, which could not complete chain of evidence of safe custody and safe transmission of case property for chemical analysis rendering the report of Chemical Examiner doubtful---Any break in the chain of safe custody and safe delivery of the samples to the Office of Chemical Examiner would create a serious dent to the case of prosecution---Circumstances established that the prosecution had failed to prove its case against the appellants beyond the reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ikramullah and others v. The State 2015 SCMR 1002; Muhammad Shoaib and another v. the State 2022 SCMR 1006; The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Zahir Shah alias Shat v. The State through Advocate General, Khyber Pakhtunkhwa 2019 SCMR 2004 rel.

Dur Muhammad Shah and Chhuto alias Muhammad Chhutan Rahimoon for Appellants (in Criminal Appeal No. 04-K of 2024).

Waqar Ahmed and Adnan Farooq for Appellant (in Criminal Appeal No. 05-K of 2024).

Iqbal Meo, Deupty Prosecutor General, Sindh for the State.

Date of hearing: 17th April, 2025.

2025 Y L R 2138

[Federal Shariat Court]

Before Iqbal Hameedur Rehman, CJ

Sofia Aslam---Petitioner

Versus

The State and another---Respondents

Criminal Revision No. 01-L of 2024, decided on 14th May, 2025.

Criminal Procedure Code (V of 1898)---

----S. 203-B---Offence of Qazf (Enforcement of Hudood) Ordinance (VIII of 1979), Ss. 3 & 5---Complaint of Qazf---Complaint filed by the petitioner before the Trial Court was dismissed after recording cursory statement of complainant and witnesses---Validity--- After filing the suit for declaration by respondent against the petitioner with allegations of zina, petitioner was left with no option but to vindicate her honor by filing a complaint of Qazf---Petitioner's cursory statement in that regard was duly recorded by the Trial Court along with cursory statements of her witnesses, stating therein specifically that respondent had levelled allegations of zina against her---In support of her cursory statement, petitioner tendered a copy of the suit for declaration filled by the respondent, in which he had levelled allegation of zina against her---Cursory statement made by the petitioner as well as her witnesses, prima facie, reflected the ingredients of the offence under S.3 of the Qazf Ordinance---According to cursory statements and suit for declaration, it appeared that respondent had disowned the child born---Same facts came within the circumferences of the Qazf Ordinance mentioned in the second explanation to S.5 of Qazf Ordinance---After recording cursory statement, the Trial Court in case of Qazf took into consideration the material substance of the statement---Allegation of zina/ adultery attributed to the complainant by the respondent was sufficient ground to summon the respondent, no other considerations were to be taken at that stage---Petitioner prima facie had made out a case of Qazf against the respondent as no deeper appreciation was required at the initial stage---Trial Court was required to summon the respondent as required by law, in the circumstances---Extraneous consideration taken by the Trial Court in the impugned order was not sustainable---Criminal revision petition was accepted, in circumstances.

Nayyer Iqbal Lakhvi for Petitioner.

Sardar Nadeem Abbas Dogar for Respondent No. 2.

Ch. Muhammad Mustafa, Deputy Prosecutor General, Punjab for the State.

Date of hearing: 14th May, 2025.

Judgment

Iqbal Hameedur Rehman, C.J.---The instant Criminal Revision has been directed against the order dated 4th June of 2024 passed in complaint of Qazf bearing case No.10 of 2024 filed under Section 203-B of the Code of Criminal Procedure, 1898 (Act V of 1898) (Hereinafter called the Code), whereby the learned Additional Sessions Judge, Okara dismissed the complaint of Qazf after recording cursory statement of the complainant (Petitioner) and her witnesses.

1. By way of present Criminal Revision, the petitioner calls in question the legality and validity of the order impugned seeking its annulment.

2. The facts unfolded by the petitioner in her complaint of Qazf are that petitioner was tied in marital knot with the Respondent No.2 on 26.02.2023 and performed her matrimonial obligations with the Respondent No.2 (Muhammad Boota) at his home. The petitioner claimed that she was ejected from the house on the hearing news of birth of prospective baby girl. Out of the said wedlock, the petitioner gave birth to a baby Anaya on 16.01.2024. The petitioner demanded delivery expenses and maintenance of her minor from the Respondent No.2 who refused to give the same, instead on 30.01.2024 filed a suit for declaration in the court of Civil Judge, Okara, claiming therein that he came to know on 16.01.2024 that the petitioner has given birth to a child whom he disowned and claimed that said baby was result of illicit relations of the petitioner with the male strangers. Thus, leveling allegation of zina/illicit relations with male strangers, prompted the petitioner to file complaint of Qazf in the learned trial Court. After recording cursory statements of the petitioner as well as her witnesses, the learned trial Court dismissed her complaint of Qazf vide impugned order dated 04.06.2024, which is reproduced as under:-

"It has been observed that the aforesaid suit of the respondent/accused is pending adjudication before the learned Civil Court. There is no findings of the learned Civil Court regarding the allegation of Zina or illicit relationship of the complainant with strangers. Similarly, respondent/accused had not filed any complaint against the complainant lady with the allegation of Zina under section 203-A of the Cr.P.C. The complainant lady was not acquitted in any such complaint as the same was never filed by accused/respondent. The mere bald allegation of Qazf against the respondent does not justify his summoning in the instant complaint in the absence of any concrete finding of the learned Civil Court with same subject matter in the pending litigation between the parties. It seems that the instant complaint has been filed by the complainant lady as a counter blast to settle the score with the respondent/proposed accused due to his suit against her. The case laws produced on behalf of complainant are most respectfully distinguishable from the facts of the case in hand. Therefore, the instant complaint is hereby dismissed for the above reasons. The file be consigned to record room after its due completion."

1. The learned counsel for the petitioner contended that pendency of civil suit cannot be made hurdle in summoning the Respondent No.2 in private complaint of Qazf as civil Court is not competent to give finding regarding allegation of zina/illicit relationship, so any finding of civil court in this regard is useless and unwarranted in the eye of law.

Continuing the arguments, it was submitted that filing any complaint with the allegation of Zina under section 203-A of the Code and acquittal therefrom is not a pre-requisite for filing a complaint under Qazf Ordinance. As there have been many cases in which accused persons were convicted and sentenced by the trial Courts and the convictions were upheld by the Hon'ble Federal Shariat Court without filing complaint under section 203-A of the Code.

Making reference to the suit for maintenance by the petitioner in the Family Court, Okara, it was submitted that the learned Family Judge in his order has observed that admittedly minor baby girl is offspring of Respondent No.2 and ordered to provide maintenance to the minor and the said order has not been assailed by the Respondent No.2.

Concluding his arguments, learned counsel for the petitioner submitted that the impugned order of the learned trial court is against the law and facts of the case, hence the same is liable to be set-aside.

1. Contrarily, learned counsel appearing on behalf of Respondent No.2 contended that the Respondent No.2 has not filed any complaint of Zina under Section 203-A of the Code against the petitioner, hence her complaint of Qazf is not maintainable.

Continuing the arguments, it was submitted that the Respondent No.2 has withdrawn suit for declaration filed in the court of Civil Judge, Okara against the petitioner, hence no case of Qazf is made out against the Respondent No.2. The learned counsel also contended that there is no finding of the Civil Court on the allegation of Zina by the Respondent No.2.

Learned counsel for the Respondent No.2 further submitted that the learned trial court has rightly dismissed the complaint of Qazf by the petitioner and prayed for dismissal of the instant Criminal Revision Petition.

1. On the other hand, learned Deputy Prosecutor General, Punjab candidly conceded that prima facie the allegations of zina against the petitioner has been levelled by the Respondent No.2 which could only be decided after summoning the Respondent No.2 and proceeding against him by the learned trial Court. The learned State Counsel frankly did not support the order impugned.

2. Arguments heard. Record perused with the able assistance of learned counsel for the parties as well as learned Deputy Prosecutor General, Punjab.

3. A perusal of the record shows that Respondent No.2 filed a suit for declaration, in which he had stated in categorical terms as under:

4. While arguing the case, learned counsel for the petitioner also submitted photo copies of certified copies of the statement of Respondent No.2 while appearing as PW-1 in his suit for declaration in the Civil Court, Okara, wherein the Respondent No.2 in his examination-in-chief stated as under:

Similarly, while during his cross-examination, he stated as under:

1. After filing the suit for declaration by Respondent No.2, the petitioner was left with no option but to vindicate her honor by filing a complaint of Qazf. Her cursory statement in this regard was duly recorded by the learned Additional Sessions Judge, Okara along with cursory statements of her witnesses, stating therein specifically that Muhammad Boota/Respondent No.2 had levelled allegations of Zina against her.In support of her cursory statement, she tendered a copy of the suit for declaration filled by the Respondent No.2 (Exh.PA), in which he had levelled allegation of Zina against her as quoted above in the preceding paras. In light of the cursory statement made by the petitioner as well as her witnesses, the samereflects that prima facie the ingredients of the offence under section 3 of the Qazf Ordinance.

2. According to cursory statements and suit for declaration (Exh.PA), it appears that Respondent No.2 has disowned the child born. The same comes within the circumferences of the Qazf Ordinance mentioned in the second explanation to section 5 of Qazf Ordinance, wherein it has been specifically mentioned as under:-

"5.Qazf liable to hadd…..

Explanation 1……..

2025 Y L R 2259

[Federal Shariat Court]

Before Iqbal Hameedur Rehman, C.J and Ameer Muhammad Khan, J

Saddam Hussain and 2 others---Appellants

Versus

The State---Respondent

Criminal Appeal No. 02-K of 2024, decided on 29th May, 2025.

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

----Art. 22---Test identification parade---Scope--- Test identification parade is a corroborative piece of evidence and corroborates the testimony of a witness recorded before the Court regarding the identification of the culprits and is test of his memory and acumen, as he has a chance to have the glimpses of the culprits at the awkward stage of the commission of occurrence---Test identification parade has to be conducted with the safeguards and precautions under the supervision of the Magistrates.

Kanwar Anwaar Ali, Special Judicial Magistrate's case PLD 2019 SC 488 rel.

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

----Ss. 302(b), 392 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Test identification parade, conducting of---Infirmities---Accused were charged for committing murder of the owner of petrol pump and looting an amount of Rs. 200,000/- and other documents---In this case, Judicial Magistrate conducted the test identification parade on 30.07.2020 inside the Central Jail, and stated that complainant identified all the accused present in Court during the test identification parade and also identified the iron box recovered from the accused but said witness had not named any of the particular of accused nor assigned any role to any of them during the statement before the Court---Said witness did not ask any objection from the accused persons nor recorded statement of the witness regarding the identification---Judicial Magistrate prepared identification form of each of the accused and certificates and also the iron box---In this case, the Investigating Officer stated that on 28.07.2020 every accused and the recovered stolen property were got identified from the complainant---Whereas the test identification parade was conducted on 30.07.2020, therefore, it had come on record that the accused had been exposed to the first informer, complainant prior to the holding of test identification parade---Therefore, the very purpose for holding a test identification parade died---It was an admitted position that features of the culprits had not been stated by complainant in the FIR or before the Court and no role of any of the accused whatsoever had been ascribed by him before the Court---Circumstances established that the prosecution failed to prove the charge against the appellants beyond a shadow of doubt---Appeal against conviction was allowed, accordingly.

Sabir Ali alias Fauji v. The State 2011 SCMR 563; Azhar Mehmood and others v. The State 2017 SCMR 135 and Ghulam Rasool v. The State 1988 SCMR 557 rel.

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

----Ss. 302(b), 392 & 34---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Statement of the accused---Material not put to accused during his statement recorded under S.342, Cr.P.C---Effect---Accused were charged for committing murder of the owner of petrol pump and looting an amount of Rs. 200,000/- and other documents---As per statement of complainant, he participated in the identification test parade and he identified the accused persons as culprits---Identification of the stolen iron box had not been specifically put to any of the accused in their statements under S.342, Cr.P.C---Therefore, the statement of complainant to that extent could not be used against the accused persons---Judicial Magistrate who conducted the test identification parade had not given any details of conducting the test identification parade, thus the prosecution even failed to prove the proceedings in that regard---Further the question regarding the conducting of test identification parade by said witness had not been put specifically to any of the accused under S.342, Cr.P.C., in a clear manner; merely putting the reports of test identification parade was not sufficient---Circumstances established that the prosecution failed to prove the charge against the appellants beyond a shadow of doubt---Appeal against conviction was allowed, accordingly.

Mst. Anwar Begum v. Akhtar Hussain alias Kaka 2017 SCMR 1710; Imtiaz alias Taj v. The State and others 2018 SCMR 344 and Rama Gope and another v. The State AIR (37) 1950 Patna 514 rel.

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

----Ss. 302(b), 392 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of weapon of offence, crime empties and currency note, etc.---Inconsequential---Accused were charged for committing murder of the owner of petrol pump and looting an amount of Rs. 200,000/- and other documents---In the present case regarding the pieces of evidence in the form of recoveries of pistol and the crime empty recovered from the place of occurrence, report of Forensic Science Laboratory disclosed that all the weapon and the crime empty were received in the office on 29.07.2020, from the office of Additional Superintendent Police together, which by itself lost its evidentiary value and could not be used safely for the purpose of corroboration---Recovery of currency note was allegedly made from the accused persons but fact that they failed to spent a penny out of the robbed two lac rupees was not appealable to ordinary prudence---Circumstances established that the prosecution failed to prove the charge against the appellants beyond a shadow of doubt---Appeal against conviction was allowed, accordingly.

Illahi Bakhsh Mengal and Ch. Afzal Ahmed for Appellants.

Mushtaq Ahmed Qazi, Additional Prosecutor General, Balochistan for the State.

Date of hearing: 16th April, 2024.

Judgment

Ameer Muhammad Khan, J.---This appeal has been filed against the conviction and sentence vide judgment dated 21.03.2024, passed in the Court of learned Additional Sessions Judge-II, Hub, whereby the appellants have been convicted for robbery and sentenced seven years rigorous imprisonment with fine of Rs. 50,000/- (Fifty thousand) each, under Section 392 read with Section 34 Pakistan Penal Code, 1860 (Act XLV of 1860) and in default thereof the payment of fine to further undergo one year simple imprisonment each and convicted for Qatl-e-Amd and sentenced to rigorous imprisonment for life, under Section 302(b) read with Section 34 of Pakistan Penal Code, 1860 (Act XLV of 1860), further burdened with compensation of Rs. 5,00,000/- (Five hundred thousand) each payable to the legal heirs of deceased Muhammad Danish son of Muhammad Iqbal, under Section 544-A of the Code of Criminal Procedure, 1898 (Act V of 1898) and in default the payment of compensation thereof further undergo six months simple imprisonment. All the appellants were benefitted with 382-B Criminal Procedure Code, 1898.

1. The brief facts as enunciated in FIR Exh./10-A, lodged by Muhammad Sajid PW-1 are that on 24.07.2020, he and the deceased Muhammad Danish were running a petrol pump within the area of Jam Yousaf Colony near Saleem Hotel street with the title of Japan Mini Petrol Pump, on the last night he and the owner of the petrol pump namely Muhammad Danish were present on the pump when at about 01:20 A.M, they after filling diesel in a vehicle were closing the gate of the pump, three persons mounted on two motorcycles emerged, who made endeavours on gun points for entering into the pump, Muhammad Danish resisted, upon which one person fired with a pistol upon Muhammad Danish hitting on his abdomen, who fell on the ground on receiving the injury, all the three entered into the petrol pump. One person amongst them kept him under the pistol point, whereas the remaining entered into the room where iron box of white colour was lying in which cash amount of Rs.2,00,000/-, receipt books, cards, the papers of motorcycle bearing No. KKE-4924, besides one pair of clothes of his father were kept, they carried the same with them and while riding on the motorcycle fled away. He telephonically informed his father and in the same position shifted Muhammad Danish through a vehicle straight to Trauma Centre Civil Hospital, Karachi where Muhammad Danish succumbed to the injuries.

2. Thereafter on receipt of the report under Section 173 Criminal Procedure Code, 1898, all the three appellants were charge sheeted after completing the formalities, who denied the charge and claimed trial, the prosecution evidence was summoned and recorded. The gist of which is as under:-

PW-1 Muhammad Sajid, reiterated the facts mentioned supra beside confirming the thumb impression Exh./1-A and also stated that he participated in the identification test parade inside Gaddani jail before the Magistrate and identified the culprits. He also identified the box.

PW-2 Abid Khan, is father of Muhammad Sajid PW-1, he confirmed the receipt of telephone call from his son Muhammad Sajid about the occurrence.

PW-3 Muhammad Ahmed Khan, this PW confirmed the receipt of call from PW-2 Muhammad Abid Khan on 24.07.2020 regarding the information of hitting of fire shot to Muhammad Danish deceased.

PW-4, ASI Sameer Nafees deposed that on 24.07.2020, he along with S.I/S.H.O. Atta Ullah Nomani and other police officials while riding on an official vehicle were in search of the culprits in this case, when he received the spy information that the culprits were present armed in a hut located on the rear side of Sharjah Hotel, upon which at about 08:10, in the night, they reached at the said place where three persons were present and a white colour iron box was lying. They apprehended the accused, made their personal search resulting into recovery of TT Pistols and their names disclosed as Naveed, Saddam and Waheed. The police party searched the box and found cash book of Japan Mini Pump, eighteen of yellow colour, nineteen of white colour and twenty nine cash memos of blue colour, 190 visiting cards, cash amount of twenty notes each of denomination of Rs.5000/-, hundred notes of the denomination of Rs.1,000/- and original paper book of motorcycle along with one suit of grey colour. The TT Pistols were checked out, one recovered from Saddam was 30-bore, with 04 live bullets, six live bullets from the TT Pistol recovered from Naveed, 05 live bullets from the TT Pistol of 30-bore recovered from Waheed and no license was produced for which separate FIRs were got registered. The recovered stolen property was taken into possession vide a separate memo. and the two motorcycles parked outside the hut used in the occurrence comprised of CG-125 and second of super power were also taken into possession vide memos attested by him and Abdul Razzaq, Head constable and produced the pistols in Court as Exh./4-A and the memo. of recovery of stolen box, cash amount, receipts, motorcycles and one pair of clothes is Exh./4-B, a memo. of the motorcycles Exh./4-C and parcel No. 2 as article P-1, recovered sealed sample from parcel as P-2 and those of the empties P-3, P-4 and P-5 respectively and the pistols along with the live cartridges P-6, P-7 and P-8 and the empty P-9, cash amount P-10, parcel of cash amount of Rs. 2,00,000/- P-11, iron box P-12, eighteen leaves of Japan Mini Petrol Pump book of yellow colour and nineteen leaves of blue P-13 and other white nineteen leaves P-14, one Shalwar Qameez P-15, original file along with book recovered from the box as P-16 and motorcycle Super Power and United P-17 and P-18, visiting cards as P-19.

PW-5 Muhammad Akram, SI, Police Station Hub city deposed that on 26.07.2020, he joined the investigation with Abdul Hakeem, Inspector at the place of occurrence viz: Japani Petrol Pump, who inspected the place of occurrence and prepared the rough site plan, recovered a crime empty from the place of occurrence near to the gate, same was taken into possession vide memo. Exh./5-A, the crime empty as P-20 and recovered cartridge as P-22, attested by this PW.

PW-6, Muhammad Yousaf Chandio, S.I, this PW stated the extra-judicial confession made by the accused persons.

PW-7, Bashir Ahmed Kakar, Judicial Magistrate, Osta Muhammad, this PW as Judicial Magistrate, Gaddani supervised the identification test parade on 30.07.2020 inside the central Jail Gaddani. Muhammad Sajid PW identified the culprits and the iron box and proved the identification test parade Exh./7-A and Exh./7-C and sketch of identification form and iron box as Exh./7-D.

PW-8, Dr. Raheel, Medical Officer, Surgical Unit-4, Civil Hospital Karachi, stated that on 24.07.2020, he and doctor Dileep Kumar conducted the operation over Muhammad Danish, deceased herein who was brought in ambulance in the hospital, having bullet shot in the abdominal part. The veins of the abdominal part were found ruptured; he succumbed to the injuries due to loss of blood. He and Dr. Dileep Kumar issued death certificate of deceased Exh./8-A.

PW-9 Dr. Dileep Kumar Surgical Unit-4, Civil Hospital Karachi, stated that on 24.07.2020, Danish deceased was brought in the hospital having a bullet shot on the abdomen, he and Dr. Raheel PW-8, conducted the operation but due to loss of blood the deceased succumbed to the injuries.

PW-10, Abdul Hakeem, Inspector Police, the investigation officer conducted the investigation of this case.

1. On 22.12.2021 the prosecutor closed the prosecution case. Thereafter the statements of the accused under Section 342 Criminal Procedure Code were recorded. The accused denied the evidence; claimed innocence and none of them opted for adducing defence evidence or stating on oath in their defence as their own witness, required under Section 340(2) Criminal Procedure Code, 1898.

Then on 21.03.2024, the learned Additional Sessions Judge-II, Hub decided this case afresh after remand of the case vide judgment dated 16.11.2023, passed by the Federal Shariat Court , hence this appeal on the following grounds:-

1. The learned counsel Mr. Illahi Bakhsh Mengal and Ch. Afzal Ahmed, advocates appearing on behalf of appellants contended that the features of the culprits have not been mentioned in the FIR, the identification test parade is defective and the witnesses have not assigned any role to the accused. The identification test parade is not a substantive piece of evidence and in absence of any ascribed role, the same cannot be used as corroborative piece of evidence, further contended that the accused were on physical remand with the police, therefore, the identification test parade loses its worth, further asserted that there is connecting evidence, the crime empty and the pistols are of no evidentiary value as there is no evidence of keeping the case property whatsoever in safe custody of the police nor there is any evidence for transmission of the same to the forensic science laboratory and that the same is violative of the 510 Criminal Procedure Code, 1898 and absence of any such evidence makes out the report of the Forensic Science Laboratory as inadmissible, further contended that the prosecution failed to prove the charge.

2. On the other hand, Mr. Mushtaq Ahmed Qazi, Additional Prosecutor General, Balochistan vehemently opposed the contentions raised by the learned counsel for the appellants and contended that the prosecution succeeded to prove the case against the appellants through cogent evidence, the culprits/appellants were identified during the identification test parade as culprits, there is no previous enmity, hence, there is no reason of false implication of the accused/ appellants and the delay in lodging of FIR is natural; finally argued that the prosecution has proved the charge.

3. Arguments heard. Record perused.

4. PW-1 Muhammad Sajid is the only eye-witness of the commission of occurrence which took place on 24.07.2020 at about 01:20 A.M, within the area of Jam Colony at Japan Mini Petrol Pump situated within the jurisdiction of police station Hub City. The story reveals that there were only two persons at the said petrol pump, one Muhammad Danish, the deceased herein and the second was PW-1 Muhammad Sajid. Therefore, PW-1 Muhammad Sajid is the star witness of the prosecution who advanced ocular account and participated in the identification test parade on 30.07.2020 and claimed identification of the accused persons, the appellants. He also identified the accused/culprits before the Court at the time of his recording of evidence as PW-1.

There is no dispute regarding the date, time and the place of occurrence, the defence has not challenged the same and even the presence of PW-1 Muhammad Sajid at the scene of occurrence is not disputed.

The death of deceased Muhammad Danish has been caused by a bullet hitting on his abdomen, PW-1 Muhammad Sajid claimed that he shifted Muhammad Danish in injured condition to the Civil Hospital, Trauma Center, Karachi where he succumbed to the injuries, he undergone a surgical operation in the said hospital.

PW-8 Dr. Raheel and PW-9 Dr. Dileep Kumar are the witnesses who carried out surgical operation upon him on the night of 24.07.2020 and categorically stated that due to loss of blood, Muhammad Danish succumbed to the injuries and died. All these facts remained un-disputed.

1. PW-1 has stated that after the occurrence he informed to his father telephonically and in the exigency he shifted Muhammad Danish in injured condition to the hospital. He lodged the FIR on 24.07.2020 at 05:30 P.M, the FIR is Exh./10-A. The FIR was lodged against unknown persons through application Exh./1-A. The statement of PW-1 Muhammad Sajid disclosed that he explained the scenario regarding delay in lodging the FIR in the terms that he alone shifted the deceased to the hospital where the deceased was operated by the doctors; therefore, there exists no question of delay particularly when the FIR has been lodged against the unknown culprits.

2. PW-1 Muhammad Sajid has ascribed three armed persons who reached at the place of occurrence while mounted on two motorcycles, they tried to enter the petrol pump on gun points, Muhammad Danish the deceased herein resisted, resultantly one of the culprits fired, hitting on Muhammad Danish on his abdominal part, he fell in injured condition on the ground. Simultaneously one person pointed his pistol upon Muhammad Sajid PW-1 and the remaining went inside the room and took out Rs.2,00,000/- from the white coloured iron box, one check book, original paper book of motorcycle No. KKE-4924 and clothes belonging to the father of Muhammad Sajid PW-1 and went away.

PW-10, Abdul Hakeem, Inspector police is the investigation officer of this case. He initiated to sort out the unknown culprits of this occurrence, stated that on 24.07.2020 the investigation of this case was assigned to him, after registration of FIR, he proceeded to the place of occurrence, prepared visual site plan, inspected the place of occurrence and collected one crime empty of 30-bore pistol, sealed the same and took into possession. Thereafter he received a spy information and consequence thereto at about 08:10 P.M, raided upon a hut located on the rear side of Sharjah hotel and cordoned off the hut through police contingent and saw that there were three persons inside and a iron box of white colour was lying there, all the three were arrested, personally searched out, resulting into recovery of pistols with magazines from all the three and their names disclosed as Saddam Hussain son of Ghulam Rasool, Abdul Waheed son of Haji Muhammad Khan and Naveed son of Mitha Khan, all resident of Hub, the appellants herein.

The box was searched out resulting into recovery of the receipts of pump, visiting cards, original file of motorcycle KKE-4924 and the net cash of amount Rs.2,00,000/- beside one Shalwar Qameez. The pistols were unloaded, resulting into recovery of four live bullets from the pistol recovered from accused Saddam Hussain, six live bullets from the pistol recovered from accused Abdul Waheed and five live bullets were recovered from the pistol recovered from accused Naveed. All the said case property was taken into possession vide memos. He also seized the motorcycles parked outside the said hut and were taken into possession.

The accused were arrested on 24.07.2020, as per evidence of PW-10 Abdul Hakeem, Inspector police, the investigating officer Saddam Hussain accused on 25.07.2020 while in police custody made disclosure to the said investigating officer about his co-accused namely Abdul Waheed and Naveed as his companions.

He was taken to the place of occurrence by this investigating officer for pointing out the same. The investigating officer PW-10, Abdul Hakeem, Inspector even opted to prepare the memos of said identification attested by Ahmed Khan son of Khalid Khan and Abid Khan son of Hameed Khan.

This PW-10, Abdul Hakeem, Inspector further stated that on 28.07.2020, he got the stolen property and all the three arrested accused identified from the first informer PW-1 Muhammad Sajid. "

1. As per Article 40 of the Qanun-e-Shahadat Order, 1984, "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 confession or not, as relates distinctly to the fact thereby discovered, may be proved." Therefore, mere Nishandahi by an accused while in custody with no discovery whatsoever from the place of occurrence is of no avail to the prosecution and is not covered under the Article 40 ibid and such part of the statement of PW-10 Abdul Hakeem shall be inadmissible in evidence.

2. The identification test parade is a corroborative piece of evidence and corroborates the testimony of a witness recorded before the Court regarding the identification of the culprits and is test of his memory and acumen, as he had a chance to have the glimpses of the culprits at the awkward stage of the commission of occurrence. The identification test parade has to be conducted with the safeguards and precautions under the supervision of the Magistrates. The Hon'ble Supreme Court of Pakistan determined the safeguards and precautions for conducting identification test parade in the case titled Kanwar Anwaar Ali, Special Judicial Magistrate, cited at "PLD 2019 SC 488", and distributed the judgment to all concerned.

In this case, PW-7 Bashir Ahmed Kakar, Judicial Magistrate conducted the identification test parade on 30.07.2020 inside the Central Jail, Gaddani. He stated that PW-1 Muhammad Sajid identified all the three accused present in Court during the identification test parade and also identified the iron box recovered from the accused but this PW has not named any of the particular accused nor assigned any role to any of them during the statement before the Court. This PW did not ask any objection from the accused persons nor recorded statement of the witness regarding the identification. He prepared identification form of each of the accused and certificates Exh./7-A to Exh./7-C and also the iron box Exh./7-D. This PW identified his signatures and the certificate.

1. The evidentiary value of the said identification test parade has to be determined on the settled principles of law and the instructions containing the precautions and safeguards for conducting the identification test parade as mentioned in "PLD 2019 SC 488" supra. The statement of the Magistrate before the Court whether he deposed in express manner and proved on record the identification test parade conducted by him and the identification test parade report prepared by him is subject to evaluation through appreciation of evidence. The claim of PW-1 Muhammad Sajid regarding the identification of the accused at the time of identification test parade and before the Court is also the subject for evaluation through appreciation of evidence and finally whether the statements of the Magistrate and that of PW-1 Muhammad Sajid regarding the identification of the accused has become a legal evidence or not is also subject to evaluation in terms of the question number (09), put to the accused while recording his statement under Section 342 Criminal Procedure Code, 1898.

In this case, first of all referring to the statement of the PW-10 Abdul Hakeem, Inspector police, the investigating officer he stated that "on 28.07.2020 every accused and the recovered stolen property were got identified from the complainant, in the words mentioned herein, as the evidence was recorded in Urdu language by the learned trial Court, same is reproduced as under."

Whereas the identification test parade was conducted on 30.07.2020, therefore, it has come on record that the accused had been exposed to the first informer, PW-1 Muhammad Sajid prior to the holding of identification test parade. Therefore, the very purpose for holding an identification test parade dies.

Even then the principles for appreciation of evidence would suggest that the circumstances appearing in evidence were right of the accused to be put to him under Section 342 Criminal Procure Code, 1898 for explanation by him. It is pertinent to mention here that the statement of Muhammad Sajid PW-1 that "he participated in the identification test parade and he identified the accused persons as culprits and the identification of the same stolen iron box, has not been specifically put to any of the accused in their statements under Section 342 Criminal Procure Code, 1898".

Therefore, the statement of PW-1 Muhammad Sajid to that extent cannot be used against the accused persons. In this regard judgment titled Mst. Anwar Begum v. Akhtar Hussain alias Kaka, cited at 2017 SCMR, 1710 and at page 1713, (D), it is mentioned that "it is well settled by now that a piece of evidence not put to an accused while examining him under Section 342, Code of Criminal Procedure cannot be used against him for maintaining his conviction". Similarly the Judgment titled "Imtiaz alias Taj v. the State and others", "2018 SCMR 344" is referred, referring to page 348 (E), "the law is settled that a piece of evidence or a circumstance not put to an accused person at the time of recording his statement under Section 342 Cr.P.C. cannot be considered against him.."

The statement of PW-7 Bashir Ahmed Kakar, Judicial Magistrate is also of vital importance. He was bound to state before the Court that Muhammad Sajid PW-1 did identify a particular accused and he could depose this fact from his own knowledge as such.

In this case he has not named any of the accused and in general term stated that all the three accused were identified by PW Muhammad Sajid. He has also not mentioned through which particular reference, any of the particular accused was identified. He was also bound to state particularly in order to prove the identification test report contained from Exh./7-A to Exh./7-C, has simply stated that "I tender identification parade form of the accused persons with the certificates Exh./7-A to Exh./7-C beside that of the iron box". PW-7 Bashir Ahmed Kakar prepared the identification parade and certificate wherein he mentioned in the report Exh./7-A that Muhammad Danish was fired by Saddam Hussain accused with his pistol and he had pointed out his pistol upon PW Muhammad Sajid. Similarly, in report Exh./7-B he has stated that this accused had entered inside the petrol pump on gun point and on the report Exh./7-C, he has given role to accused Abdul Waheed for taking away the cash and the iron box.

Whether this part of the identification test parade report can be read in evidence against any of the accused in the manner that question number 9, contained in statement of every of the accused recorded under Section 342 Code of Criminal Procedure reproduced as under:-

Question No. 9. Is it correct that PW-7, Bashir Ahmed Kakar, Judicial Magistrate deposed and produced identification parade forms and certificates of you accused persons as Exh./7-A to Exh./7-C and form map of box as Exh./7-D against you?.

Answer:- It is false.

In this question the circumstance appearing in evidence of PW-1 Muhammad Sajid about identification of the accused persons by him is not covered and does not contain anything for the explanation from the accused persons regarding identification of said PW-1 Muhammad Sajid. Therefore, this question put under Section 342 Cr.P.C to the accused by the Court does not make the evidence of said Muhammad Sajid PW as admissible to the extent of his claim of identification of the accused persons.

Regarding the statement of PW-7, Bashir Ahmed Kakar before the Court, reference is to a case titled "Rama Gope and another v. The State" reported at AIR (37) 1950 Patna 514" at page 515, the same is reproduced as under:-

"I can understand the evidence of identification before the committing Magistrate being utilized as substantive evidence, but not the evidence at the test identification parade; but, of course, where it corroborates the evidence in Court, it must be regarded as of great value specially when the test identification parade was held without any unreasonable delay. I can also understand a statement made by the Magistrate himself, who held the test identification parade, being utilized as substantive evidence, provided the Magistrate stated that a particular witness did identify a particular accused and he could depose to this fact from his own knowledge as such. In this case however, I do not find that the Magistrate, who held the test identification parade, did make any such statement. All that I find is that he observed only as follows: " I prepared a chart of T. I. parade. This is the chart prepared by me Ex.. He does not say which witness identified which accused. Therefore, merely proving the chart cannot be sufficient."

1. In this case the position is almost the same, regarding the evidence of PW-7, Bashir Ahmed, Magistrate who conducted the identification test parade. The said PW-7 has not given any details of conducting the identification test parade, thus the prosecution even failed to prove the proceedings in this regard. Further the question regarding the conducting of identification test parade by this PW has not been put specifically to any of the accused under Section 342 Code of Criminal Procedure, in a clear manner, mere putting the reports of identification test parade is not sufficient.

In this scenario, then what is left with the prosecution, if the statement of PW-1 Muhammad Sajid to the extent of his participation in the identification parade and the identification of accused persons has become inadmissible in evidence. Therefore, there is no legal evidence available on record regarding identification of the accused persons (appellants herein).

1. It is admitted position that features of the culprits has not been stated by PW-1 Muhammad Sajid in the FIR Exh./10-A or before the Court and no role of any of the accused whatsoever has been ascribed by him before the Court.

Therefore, In case titled "Sabir Ali alias Fauji v. The State" cited at 2011 SCMR 563 (570), the principle laid down is identification test is of no value, if description of the accused is not given in the FIR and in judgment titled "Azhar Mehmood and others v. The State " cited at 2017 SCMR 135 and at page 138, the principle is mentioned as, accused persons were identified during the parade but without reference to any role played by them in the incident such a test identification parade was of no evidentiary value.

In case titled "Ghulam Rasool v. the State", cited at 1988 SCMR 557" at page 560, it has been held that "role of the accused at time of commission of offence not described by witness is a inherent defect and evidence of witness identifying accused in such identification parade lost its efficacy and not relied upon."

2025 Y L R 147

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

Syed raza Farooq and others---Petitioners

Versus

The State---Respondent

Criminal Misc. (BA) Nos. 298, 311 and 312 of 2023, decided on 30th November, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, refusal of---Habitual offender---Apprehension of abscondance---Allegation against the accused-petitioner was that he had dishonestly issued a cheque amounting to Rs. 1,30,000/- to the complainant to pay the liability of rent of a plot, which was dishonoured on presentation before the concerned bank---From perusal of record it transpired that the accused/petitioner was involved in three criminal cases registered under S.489-F, P.P.C---Admittedly, accused/ petitioner had issued three cheques to complainants which on presentation before the concerned bank bounced due to insufficient amount in the account of the present petitioner/accused---No possibility of false implication of the petitioner or substitution or mistaken identity existed because he was known to the complainants---Accused/petitioner though was not convicted in any case previously, but his involvement in three cases of similar nature was sufficient to declare him habitual offender and apprehension existed that if he was released on bail, he could repeat the offence and there also existed apprehension that he would abscond after release on bail, as he belonged to another Province---Offence with which the petitioner/accused was charged, no doubt did not fall within the prohibitory clause of S.497(1), Cr.P.C.---But it was not rule of law that in each and every case which is not punishable with death, imprisonment for life or ten years, bail must be granted to the accused without considering the gravity of the offence---Courts cannot be oblivious to the material collected by prosecution and after looking into it and making tentative assessment of evidence, if the Court comes to the conclusion that a prima facie case is made out it can refuse bail even in cases which are not punishable with death, imprisonment for life or ten years---Bail petitions being devoid of merit were dismissed, in circumstances.

PLJ 2008 Cr.C.(Lahore) 63; 2023 PCr.LJ 499; 2022 SCMR 592; 2023 PCr.LJ 823; 1998 PCr.LJ 821; 2022 PCr.Lj 146; PLD 2006 Lahore 752; 2011 SCMR 1708; PLD 2013 Lahore 442; 2012 PCr.LJ 1858; 2018 YLR Note 140; 2017 YLR 694; 2017 PCr.LJ 1189; 2016 MLD 1450; 2018 YLR 1554; 2018 MLD 273; 2006 YLR 23 and 2017 PCr.LJ 1189 ref.

Farhan Ali and Rashid Umar for the Petitioner/accused in all petitions.

Malik Sherbaz, Dy. Advocate General for the State.

Mubashir Hussain, for the Complainant (in C.M. No. 298 of 2023).

Burhan Wali Khan for the Complainant (in C.M. No. 311 of 2023).

Nouman Hameed for the Complainant (in C.M. No. 312 of 2023).

Date of hearing: 24th November, 2023.

Order

Ali Baig, C.J.---Through this single consolidated order, I intend to dispose of all the above titled petitions bearing C.M No. 298/2023, C.M No. 311/2023 and C.M No. 312/2023 as all the petitions have been filed by the petitioner/accused namely Syed Raza Farooq under section 497, Cr.P.C for grant of post arrest bail in three cases registered against him under section 489-F P.P.C. and common question of law and facts are involved in all aforesaid bail petitions.

1. It is pertinent to mention here that the name of petitioner in Cr. Misc. No. 311/2023 has been written as Ali Raza Shah son of Syed Farooq Zahid, whereas the name of the petitioner in Cr. Misc. No. 298/2023 and Cr. Misc. No. 312/2023 has been mentioned as Syed Raza Farooq son of Syed Farooq Zahid. The learned counsel for the petitioner as well as the learned counsel for the complainant and learned DAG stated at bar that the name of the petitioner/ accused is Syed Raza Farooq and his name was wrongly written as Ali Raza Shah in case FIR No. 178/2023 by the police, as such the learned counsel for the petitioner/accused has filed bail petition bearing No. Cr. Misc. 311/2023 in the name of Syed Ali Raza Shah in the light of aforesaid FIR. Perusal of record also shows that the father's name of petitioner/accused is Syed Farooq Zahid in all bail petitions as well in the FIRs, hence the name of the petitioner/accused in C.M No. 311/2023 is different as compare to other two bail applications, but the person is same in all aforesaid post arrest bail petitions.

2. It is also pertinent to mention here that the learned Sessions Judge, Gilgit as well as the learned Senior Civil Judge/Judicial Magistrate Gilgit have already refused bail to the present petitioner/accused in the above titled cases.

3. Through C.M No. 298/2023 filed under section 497, Cr.P.C, the petitioner/ accused seeks post arrest bail in case FIR No.174/2023 registered under section 489-F, P.P.C. at Police Station City, Gilgit, wherein the allegation against the petitioner/accused is that on 11.09.2023, the petitioner/accused had dishonesty issued a cheque bearing No. CA-14169644 amounting to Rs.1,30,000/- of Soneri Bank NLI Market Gilgit Branch to the complainant namely Nisar Ali to pay the liability of rent of a plot, which was dishonoured on presentation before the concerned bank authorities due to lack of requisite balance in the account of petitioner/accused and stoppage of payment of aforesaid cheque.

4. Whereas through C.M No. 311/2023 filed under section 497, Cr.P.C. the petitioner/accused has sought post arrest bail in case FIR No. 178/2023 registered under section 489-F, P.P.C. at Police Station City Gilgit, vide which the allegation against the petitioner/accused is that on 02/10/2023 the petitioner/accused had dishonestly issued a cheque bearing No. CA-64169643 amounting to Rs.900,000/- of Soneri Bank to the complainant namely Ubaid ur Rehman to pay the liability of a tractor transaction, and the said cheque was dishonoured on presentation before the concerned bank authorities due to insufficient balance in the account of the petitioner/accused.

5. In the third case i.e. FIR No. 175/2023 registered under section 489-F, P.P.C. at Police Station City, Gilgit, the petitioner has also sought post arrest bail through Cr. Misc. No. 312/2023 filed under section 497, Cr.P.C, whereby the allegation against the petitioner/accused as per contents of FIR is that on 29.08.2023 the petitioner/accused had dishonestly issued a cheque bearing No. CA-64169642 amounting to Rs.307,000/- of Soneri Bank NLI Market Gilgit Branch to the complainant namely Sher Ali to fulfill the obligation of a business transaction, which was dishonoured on 29.09.2023 when the complainant presented it before the concerned bank authorities due to insufficient balance and stoppage of payment of aforesaid cheque.

6. The learned counsel appearing on behalf of the petitioner/accused argued that there is 18 days delay in lodging FIR No. 174/2023, and 30 days delay in lodging FIR No. 175/2023 which creates serious doubt on the part of complainants as well as local police. The learned counsel for the petitioner /accused further argued that the complainant has taken the impugned cheque on gun point in case FIR No. 174/2023, whereas the petitioner/accused has not issued the said cheque to complainant Nisar Ali on his free will. The learned counsel for the petitioner/accused further argued that 489-F, P.P.C. does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. The learned counsel for the petitioner/accused further argued that there is no written agreement between the complainants and the petitioner/accused in all the three cases and the complainants have failed to produce any document in this regard before the police as well as before this Court. The learned counsel for the petitioner/accused further argued that no notice under section 30 of the Negotiable Instrument Act has been served on the petitioner/accused in all cases prior to lodging of FIRs which is mandatory under the relevant law. The learned counsel for the petitioner/accused further argued that the ingredients of section 489-F, P.P.C. i.e. fulfillment of an obligation and repayment of a loan are conspicuously missing in all cases. The learned counsel for the petitioner/accused further argued that all the matters pertain to civil liability as such the matters are civil nature for which the complainants may seek remedy from the Civil Court having competent jurisdiction. The learned counsel for the petitioner/accused further argued that the petitioner/accused is not previously convicted as such the petitioner is entitled for concession of bail in all the above titled cases. In support of his arguments, the learned counsel for the petitioner/accused has relied upon following judgments of superior Courts:

(i) PLJ 2008 Cr.C.(Lahore) 63

(ii) Judgment dated 02.09.2023 passed by this Court in Cr. Misc. No. 203/2023 titled "Aun Ali Shah v. State"

(iii) Order dated 26.08.2022 passed by this Court in Cr.Misc. No. 170/2022 titled "Ibrar Hussain v. State"

(iv) Judgment dated 22.08.2023 passed by the Supreme Court of Pakistan in Cr. Petition No. 717/2023 titled "Zafar Nawaz v. State and others"

(v) 2020 YLR 1099

(vi) Judgment dated 30.05.2023 passed by this Court in Cr. Misc. No. 88/2023 titled "Amin Sher v. State"

(vii) 2018 YLR Note 202

(viii) Judgment dated 07.10.2023 passed by this Court in Cr. Revision No. 11/2023 titled "Afsar Jan v. State"

(ix) 2018 YLR Note 131

(x) Order dated 18.08.2023 passed by this Court in Cr. Misc. Nos.80/2023 and 84/2023

(xi) 2023 PCr.LJ 499

(xii) 2022 SCMR 592

(xiii) 2023 PCr.LJ 823

(xiv) 1998 PCr.LJ 821

(xv) 2022 PCr.LJ 146

(xvi) PLD 2006 Lahore 752

(xvii) 2011 SCMR 1708

(xviii) PLD 2013 Lahore 442

(xix) 2012 PCr.LJ 1858

(xx) Judgment dated 01.01.2020 passed by the Hon'ble Peshawar High Court in case titled Professor Akhtar Khan v. State

(xxi) 2018 YLR Note 140

1. On the other hand, the learned Dy. Advocate General assisted by learned counsel for the complainants controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the accused/ petitioner has been directly charged in FIR No. 174/2023, FIR No. 178/2023 and FIR No. 175/2023 with specific role of issuing three cheques of different amounts dishonestly having the knowledge that there is insufficient balance in his account. The learned Dy. Advocate General assisted by the learned counsel for the complainants further contended that the petitioner/accused is habitual offender and his conduct is blemished on his character as he has issued three bogus cheques with dishonest intention. The learned Dy. Advocate General and counsel for the complainants further contended that the petitioner/accused has issued all the three cheques to pay the liability of rent of a plot and transaction of a tractor, as such the essential ingredients of 489-F, P.P.C. has been established. The learned Dy. Advocate General and counsel for the complainants further contended that whenever a cognizable offence is committed, the police is at liberty to lodge FIR under section 154, Cr.P.C, as such notice under section 30 of the Negotiable Instrument Act is not required in the instant cases. Lastly, the learned Dy. Advocate General and the learned counsel for the complainants contended that the trial of the accused/petitioner is in progress and the cases are fixed for prosecution evidence in the trial Court, hence the petitioner/accused is not entitled for concession of bail in all the three cases. In support of their arguments, the learned DAG and the learned counsel for the complainants have relied upon judgments of superior Courts reported as:

(i) 2017 YLR 694

(ii)(sic) 2017 PCr.LJ 1189

(iii) 2016 MLD 1450

(iv) 2018 YLR 1554

(v) 2018 MLD 273

(vi) 2006 YLR 23

(vii) 2017 YLR 694

(viii)(sic) 2017 PCr.LJ 1189

(ix) 2016 MLD 1450

(x) 2016 MLD 1450

2025 Y L R 399

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad and Mushtaq Muhammad, JJ

Shakir Abbas and 3 others---Petitioners

Versus

The State---Respondent

Cr. Misc. No. 140 of 2023 in Criminal Appeal No. 36 of 2021, decided on 6th July, 2024.

Criminal Procedure Code (V of 1898)---

----S. 426---Penal Code (XLV of 1860), Ss. 302(b), 324, 34, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), S. 7---Pakistan Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly, common intention, possessing illegal weapons, act of terrorism---Suspension of sentence pending appeal---Record showed that criminal appeal was sub-judice before the Court after lapse of more than three years---Petitioners were in judicial lock up for the last more than four years---Question for judicial consideration in the petition was that, whether an appeal filed under the special enactment if not decided within fifteen days, would give any right to the convict for his release on bail?---Section 25(5) of the Anti-Terrorism Act, 1997 ('Act 1997') directs that appeal is to be decided within seven days and subsection (8) of the said provision prohibits that during pendency of the appeal, the convict shall not be released---On this particular provision, during pendency of the appeal within the said seven days the convict shall not be released on bail---Section 25 of the Act, 1997 does not give any answer that if the appeal is not decided within seven days what would be the result of the same or if the appeal could not be decided for default of the complainant, the convict would be left unattended---Record in the main appeal showed that appeal was adjourned on the request of rival parties and the prosecutor and sometimes the appeal was adjourned due to strike of the members of the Bar Association---Secondly the provisions of S.25 of the Act, 1997 and S.426, Cr.P.C were not inconsistent with each other---No doubt appeal of a convict who was serving out the sentence of imprisonment should be decided within shortest possible time, but if the same was delayed for any reason beyond the control of the parties, Court should not leave the matter unattended---In the instant case, the appellants/convict petitioners were behind the bars since their arrest i.e. from the year 2020 and their appeal was pending before the Court since 10/11/2021, without any fault on their part---Appellants/ petitioners had been convicted for a period of 7 years with the benefit of S.382 (B) Cr.P.C. and they had already served out major portion of their imprisonment---Appeal of appellant/ convicts/petitioners was not likely to be fixed in the near future due to summer vacations---Since the major portion of sentence awarded to the petitioners had elapsed and statutory right of bail as envisaged in S.426, Cr.P.C already accrued to the petitioner/appellant, as such other merits of the case need not be discussed---Petition was allowed by suspending the sentence awarded to the appellants/petitioners.

Aurangzeb Khan for Petitioners.

Mahmood Kamal Afandi DAG for the State assisted by Manzoor Hussain and Imtiaz Hussain for the Complainant.

Date of hearing: 4th June, 2024.

Judgment

Raja Shakeel Ahmad, J.---Through this Cr. Misc. No. 140/2023 under section 426, Cr.P.C, the petitioners/ convict/appellants seek suspension of the sentence on the statutory ground i.e. non-disposal their appeal within stipulated time mentioned in section 25 of ATA, 1997 read with section 426, Cr.P.C. The learned Judge of ATC-1 Gilgit, vide its judgment dated 04/01/2021 has convicted the above named petitioners along with others and petitioners/convicts were convicted under section 13(D) Arms Ordinance, 1965 and they were sentenced to a rigorous imprisonment for seven years beside a sentences of 02 years RI and 03 years RI, under Ss.147 and 148, P.P.C. respectively. Learned trial court while passing different sentences has extended benefit of S. 382(B), Cr.P.C. to the petitioners / convicts.

1. The petitioners have filed appeal before this Court on 10/11/2021 and same pending subjudice before this court from the date of institution. The learned Counsel for the petitioners has pointed out that, under section 25 of ATA an appeal filed before the High Court, should have to be decided within fifteen days and under section 426(1-A) (b) any appeal of convicted person who has been sentenced to imprisonment for a period of exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction, shall become entitled for bail under section 426, Cr.P.C. The learned counsel further submitted that, it is now almost four years elapsed after filling of their appeal but the same is not finally disposed of. As such on the basis of above mandatory provisions of law a statutory right has accrued to the petitioners as such they are entitled for the relief.

2. Conversely, the Deputy Advocate General Mr. Mahmood Kamal Afandi, assisted by Mr. Imtiaz Hussain advocate counsel for the complainant objected and submitted that, petitioners had been tried under a special law and they have questioned the judgment of conviction recorded against them under the special enactment therefore, they cannot take advantage of the provisions of common law. They submitted that in the special enactment no such provision like Section 426, Cr.P.C. is available and according to section 25 of the Special Act 1997, during pendency of appeal before appellate forum the convict cannot be released on bail as per the analogy of section 426, Cr.P.C. They submitted that Act, 1997 is special law and same has an overriding effect over the common law, as such the petition in hand is not tenable therefore, same may be dismissed.

3. Arguments heard and record perused. On the factual side it is on record admitted that Criminal Appeal No. 36/2021 is still sub-judice before this court after lapse of more than three years. Petitioners are in judicial lock up for the last more than four years. The question for judicial consideration in this petition is that, whether an appeal filed under the special enactment if not decided within fifteen days, will it give any right to the convict for his release on bail?

After a careful perusal of section 32 of the Anti-Terrorism Act, 1997, we are of the considered view that, no doubt Acts 1997 has given an overriding effect over the common law and any other law, but this overriding effect is not absolute. Sub-section (1) of section 32 of the Act reads as follows:-

32. Overriding effect of Act.(1) The provisions of this Act shall have effect notwithstanding anything contained in the Code or any othe law but, save as expressly provided in this Act, the provisions of the Code shall, in so far as they are not inconsistent with the provisions of this Act, apply to the proceedings before an Anti-Terrorism Court, and for the purpose of the said provisions of the Code, an Anti-Terrorism Court shall be to be a Court of Sessions."

2025 Y L R 529

[Gilgit-Baltistan Chief Court]

Before Ali Baig, CJ

Sajjad Hussain---Petitioner

Versus

The State---Respondent

Criminal Misc. No. 306 of 2024, decided on 10th December, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Delayed FIR---Accused was charged for issuing a cheque which was dishonoured due to insufficient funds when presented before the concerned bank---From perusal of record it transpired that there was almost 3½ months unexplained delay in lodging of the FIR---Challan against the accused/petitioner had yet not been submitted in the Court of competent jurisdiction despite lapse of more than eight months of the registration of the FIR, which was violation of mandatory provisions of S.173, Cr.P.C.---Petitioner/accusedwas behind the bars for the last more than eight months and there was no progress regarding trial of case against the petitioner/ accused, whereas maximum punishment under S.489-F, P.P.C, was three years---Reportedly, the complainant had filed a suit against the petitioner/accused for recovery of the disputed amount, as such, the case of the petitioner/accused seemed to be a civil nature---Moreover, offence under S.489-F, P.P.C, did not fall within the ambit of prohibitory clause of S.497, Cr.P.C.---Grant of bail in offences not falling within the ambit of prohibitory clause of S.497, Cr.P.C., was a rule and refusal thereof was an exception---Accused was admitted to post arrest bail, in circumstances.

2022 SCMR 592; PLD 2017 SC 733 and 2011 SCMR 1700 rel.

Wahid Ali and Tabraiz for Petitioner.

Malik Sherbaz, Dy. Advocate General for the State.

Date of hearing: 6th December, 2024.

Order

Ali Baig, C.J.---The petitioner/accused has moved the instant bail petition under section 497, Cr.P.C for grant of post arrest bail in criminal case bearing FIR No. 55/2024 registered under section 489-F, P.P.C. at Police Station City Gilgit. Prior to filing this petition, the present petitioner had filed bail petition in the Court of learned Addl. Sessions Judge, Giglit, which was dismissed by the learned Addl. Sessions Judge Gilgit, vide order dated 07.10.2024 passed in B.A No. 129/2024, hence, this petition.

1. Briefly the allegation levelled against the petitioner/accused as disclosed in the FIR is that on 27.12.2023 the petitioner/accused had issued a cheque bearing No.1947849588 amounting to Rs.20,00,000/- of MCBL Gilgit Branch to the complainant in lieu of rent of hotel situated at Jamat Khana Bazar Gilgit. The cheque issued by the petitioner/accused was dishonoured by the Bank of Punjab Dar Plaza Gilgit due to insufficient balance in the account of the accused/petitioner. On written application of complainant, FIR No.55/2024 was registered against the accused/petitioner under section 489-F, P.P.C. at Police Station City Gilgit.

2. Learned counsel for the petitioner/accused submitted that the petitioner/accused has not issued any cheque regarding fulfillment of an obligation rather the cheque has been stolen from the counter of the hotel by the complainant, hence it is presumed that the complainant has put a fake signature of the petitioner on the cheque in question as such the accused/petitioner is entitled for grant of bail. The learned counsel for the petitioner/accused further argued that there is more than three months delay in lodging of FIR which shows mala fide on the part of complainant. The learned counsel for the petitioner/accused further argued that there is a civil litigation pending before the Civil Court for recovery of disputed amount. The learned counsel for the petitioner/ accused further argued that prosecution has failed to submit challan of the case before the Court of law even after of lapse of more than 9 months, which is violation of mandatory provision of section 173, Cr.P.C. The learned counsel for the petitioner/accused argued that section 489-F, P.P.C. does not fall within the prohibitory clause of section 497, Cr.P.C as such the petitioner is entitled for bail. The learned counsel for the petitioner/ accused further submitted that there is no any written agreement between the petitioner/accused and the complainant regarding fulfillment of an obligation. The learned counsel for the petitioner/ accused further argued that the petitioner is behind the bars for more than eight months without any trial. The learned counsel for the petitioner/ accused further argued that the complainant has not issued any legal notice to the petitioner/accused prior to registration of FIR which was prerequisite to register the FIR. In support of his arguments, the learned counsel for the petitioner/accused has relied upon judgments/orders of this Court dated 04.03.2024 passed in Cr. Misc. No. 60/2024 titled "Waseem Abbas v. The State", order dated 26.08.2022 passed in Cr. Misc. No. 170/2022 titled "Ibrar Hussain v. The State", order dated 30.01.2023 passed in Cr. Misc. No. 18/2023 titled "Basharat Hussain v. The State" and order dated 02.09.2023 passed in Cr. Misc. No. 203/2023 titled "Aun Ali Shah v. The State."

3. On the other hand, the learned Dy. Advocate General controverted the arguments advanced by the learned counsel for the petitioner/accused by contending that the petitioner/accused has dishonestly issued a fake cheque to the complainant. The learned Dy. Advocate General further argued that the complainant has issued legal notice to the petitioner/ accused but he failed to pay the disputed amount. The learned Dy. Advocate General further argued that the prosecution has submitted complete challan of the case before the Court of competent jurisdiction. The learned Dy. Advocate General further argued that a huge amount is involved in the matter and it would be injustice to release the accused/ petitioner on bail at this stage of proceedings. Prima facie prosecution has established its case through cogent documentary and oral evidence against the petitioner/accused, thus the petitioner/ accused is not entitled for concession of bail.

4. I have heard the arguments advanced by the learned counsel for the parties and perused the available record of the case with their able assistance.

5. From perusal of record it transpires that there is almost 3-1/2 months unexplained delay in lodging of the FIR. Challan against the accused/petitioner has yet not been submitted in the Court of competent jurisdiction despite lapse of more than 8 months of the registration of the FIR, which is violation of mandatory provisions of section 173, Cr.P.C. The petitioner/accuse is behind the bars for the last more than 8 months and there is no any progress regarding trial of case against the petitioner/accused, whereas maximum punishment under section 489-F, P.P.C. is three years. Reportedly, the complainant has filed a suit against the petitioner/accused for recovery of the disputed amount, as such, the case of the petitioner/accused seems to be a civil nature.

6. Moreover, offence under section 489-F, P.P.C. does not fall within the ambit of prohibitory clause of section 497, Cr.P.C. It is settled principle of law that grant of bail in the offences not falling within the ambit of prohibitory clause of section 497, Cr.P.C. is a rule and refusal is an exception. Reliance in this regard can be placed on the reported judgments of the Hon'ble Apex Court of Pakistan reported as:

2025 Y L R 2444

[Gilgit-Baltistan Chief Court]

Before Raja Shakeel Ahmad, J

Manzoom Hussain---Petitioner

Versus

The State---Respondent

Cr. Misc. No. 25 of 2025, decided on 11th February, 2025.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 392, 353, 506(ii), 337-A, 182 & 147---Robbery, assault or criminal force used to deter a public servant from performing their duty, criminal intimidation, shajjah, giving false information to a public servant with the intent to cause them to use their lawful power to the injury or annoyance of another person, rioting---Bail, grant of---Further inquiry---Allegations against the accused-petitioner were that he and his co-accused assaulted Government officials and prevented them from performing their official duties---First Information Report was logged after delay of eight hours without any plausible explanation, wherein the present accused-petitioner was not directly nominated in the FIR---None of the nominated accused in the FIR along with other 35 persons either had been arrested or investigated by the police in the instant case---Prosecutor when confronted with this fact, failed to satisfy the Court why the police had arrested the present accused despite the fact that his name was not reflected in the FIR---Conduct of Investigating Officer in the investigation of present case reflected mala fide with the present accused, which made the case of the prosecution as one of further inquiry---All the other offences except S.392, P.P.C, were bailable and S.392 in the instant case was not attracted to the extent of present accused/petitioner---No recovery had been made from the accused during investigation by the police---Investigation of case was complete---Accused was behind the bar since his arrest and was not required for any further investigation and there was no chance of tempering by petitioner with the prosecution evidence if he was released on bail---As such no useful purpose would be served by keeping the petitioner behind the bars for an indefinite period because so far the prosecution had failed to submit the complete challan before the Trial Court---Bail petition was allowed, in circumstances.

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

----S. 497---Bail---Observations of the Court---Scope---Observations made in the bail order are tentative in nature and should not have any bearing upon the pending (trial) proceedings.

Jaffar Hussain and Arsalan Hussain for Petitioner/accused.

Mehmood Kamal Afandi DAG for the State.

Date of hearing: 11th February, 2025.

Order

Raja Shakeel Ahmed, J.---The above titled petition under section 497 Cr.P.C has been filed by the petitioner/accused for grant of post arrest bail. The petitioner/accused filed bail application before the learned vacation Sessions Judge Gilgit which was declined by the learned vacation Sessions Judge Gilgit vide order/judgment dated 06/01/2025. The petitioner being aggrieved, filed the instant petition for his post arrest bail which had been allowed vide my short order dated 11/02/2025.

1. Brief facts of the case as narrated in the FIR are that on 18-11-2024 at about 11:00 hrs, on spy information, the custom officials along with the police and intelligence officials conducted a raid to recover the goods imported from China which were concealed by the petitioner/accused and co-accused without payment of custom duty. During the raid the petitioner/accused along with other co-accused assaulted the government officials and prevented them from performing their official duties. The petitioner/accused and co-accused forcibly took the mobile phone of MI official Muhammad Tariq, used abusive language and also threatened the officials. Hence, the FIR No. 20/2024 has been registered against the petitioner/accused and his co-accused.

2. The learned counsel for petitioner/accused contended that the local police in connivance with the complainant registered above titled criminal case against the petitioner/ accused with mala fide intention. The petitioner/accused is innocent and has falsely been implicated in the instant case. The petitioner/accused has no previous criminal record. The instant FIR is lodged with ulterior motive just to harass and humiliate the petitioner/ accused. The counsel for the petitioner/accused further contended that there is eight hours unexplained delay in registration of the FIR. The counsel for the petitioner/ accused further contended that the petitioner/accused filed Bail application before the learned vacation Sessions Judge Gilgit and the same was dismissed by the learned vacation Sessions Judge Gilgit vide order/ judgment dated 06/01/2025. He argued that the complainant has nominated the petitioner/ accused solely on the basis of his alleged presence at the place of occurrence, but the petitioner/accused has not committed any act against the government officials. The learned counsel for the petitioner/ accused further argued that the case of prosecution falls under the ambit of further inquiry and the petitioner/accused has no concern, whatsoever with the commission of the alleged offences. He contended that the sections mentioned in the FIR do not fall within the prohibitory clause of section 497 Cr.P.C, except section 392 P.P.C, which is not attracting in the instant case. He further contended that, no incriminating material or independent evidence is available on record against the petitioner/accused, making the prosecution's case highly doubtful. The learned counsel for the petitioner/accused relied upon case law reported in 2007 YLR 1144 and 2010 YLR 587. Lastly, the learned counsel prayed that the instant bail petition be accepted and the petitioner/accused be admitted to bail in the interest of justice.

3. On the other hand, the learned Deputy Advocate General (DAG) vehemently opposed the contentions raised by the learned counsel for the petitioner/accused and submitted that the petitioner/accused is specifically nominated in the FIR with a clearly assigned role in the commission of the alleged offence. The learned DAG further contended that the prosecution witnesses (PWs) have directly implicated the petitioner/accused in connection with the alleged offences. It was also submitted that the police and customs officials recovered the smuggled goods, which had been imported from China and concealed by the petitioner/accused in collaboration with the co-accused. He further argued that Section 392 P.P.C is attracted in the present case and falls within the ambit of the prohibitory clause of Section 497 Cr.P.C. Lastly, the learned DAG prayed for the dismissal of the instant post-arrest bail petition filed by the petitioner/ accused, to meet the ends of justice.

2025 Y L R 158

[High Court (AJ&K)]

Before Syed Shahid Bahar, J

Ghulam Rabani Butt---Petitioner

Versus

Managing Director Hydral Power Electric Board, Muzaffarabad and 3 others---Respondents

Writ Petition No. 324 of 2020, decided on 16th February, 2024.

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

----Art. 4(4)(14)---Protection of property---Acquisition of land without due process---Public purpose---Scope---Right of property is constitutionally guaranteed fundamental right, which cannot be snatched in arbitrary and unlawful manner as enshrined in Art.4(4)(14) of Azad Jammu and Kashmir Interim Constitution Act, 1974---Rights of individual are always to yield in favour of rights of public-at-large but simultaneously nobody can be deprived from his constitutionally guaranteed fundamental rights without adopting the due process of law---Compensation has to be paid as per scheme of law in light of the property which is likely to be acquired or required for the public purpose, otherwise any sort of claim or taking possession of landed property of any citizen/ state subject, without adopting due procedure, is unlawful---High Court directed the respondents, jointly and severally , to do the needful qua redressal of the grievance of the petitioner regarding his landed-property which was in use of the respondents; if the landed property was in fact, required for the public purpose then initiate the acquisition proceedings and ultimately the petitioner be compensated within 02 months; if public purpose was lacking or the land was no more required, then the petitioner was entitled to get back possession of his land---Writ petition , filed by land-owner , was disposed of accordingly.

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

----Art. 4(4)(14)---Protection of property---Acquisition of land without due process---Public purpose---Respondents (Acquiring Agency), in its reply straightforwardly admitted the claim of the petitioner and anything admitted need not to be proved---High Court directed the respondents /acquiring agency to do needful qua redressal of the grievance of the petitioner regarding his landed-property which was in use of the respondents; if the landed property was, in fact, required for the public purpose then initiate the acquisition proceedings and ultimately the petitioner be compensated within 02 months, if public purpose was lacking or the land was no more required, then the petitioner is entitled to get back possession of the said land---Writ petition, filed by land-owner, was disposed of accordingly.

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

----Art. 4(4)(14)---Protection of property---Acquisition of land without due process---Public purpose---Constitutionally guaranteed fundamental rights can neither be snatched nor waived by a person himself---Any alleged agreement or instrument which postulates that a person claiming compensation/ acquisition of the landed property has already waived or abandoned the rights bears no weight---High Court directed the respondents/acquiring agency to do needful qua redressal of the grievance of the petitioner regarding his landed-property which was in use of the respondents; if the landed property was in fact, required for the public purpose then initiate the acquisition proceedings and ultimately the petitioner be compensated within 02 months: otherwise, if public purpose was lacking or the land was no more required, then the petitioner was entitled to get back possession of his land---Writ petition , filed by land-owner , was disposed of accordingly.

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

----S.4---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Acquisition of land---Writ jurisdiction of High Court---Scope---Public purpose, determination of---Powers of Collector---Scope---Whether the purpose demonstrated by acquiring agency comes within the parameters and compass of public purpose is to be decided by the Government---High Court in extraordinary jurisdiction conferred under Art.44 of the AJ&K Interim Constitution Act, 1974, cannot step in the shoes of Government---Even the question of public purpose cannot be determined by the High Court in exercise of writ jurisdiction because it is always the Collector Land Acquisition who determines under S.4 of the Land Acquisition Act, 1894 as to whether a purpose is a public purpose or not---Public purpose broadly speaking means any purpose aimed at promotion of general public---Whether a purpose amounts to public purpose is a matter for government and not for the High Court to decide.

Administrator Municipal Committee Kotli v. Muhammad Abdullah 2001 YLR 3367 and Muhammad Ashraf v. Reveue AEC 1980 CLC 1504 ref.

Ms. Romana Shabir Malik for the Petitioner.

Ms. Rahat Farooq, Legal Advisor for PDO/Respondents.

Judgment

Syed Shahid Bahar, J.---Constitutional petition at hand has been filed by the petitioner-Ghulam Rabani under Article 44 of Azad Jammu and Kashmir interim Constitution, 1974, through which he prayed for infra relief:-

"It is therefore most humbly prayed that by allowing this petition appropriate writs to the following effect may kindly be issued:-

(i) Directing the respondents to pay the rent of the land of petitioner, situated in Khewat No.63/68 survey Nos.693, 694, 695 measuring 4 kanal 5 marlas in Mozia Changan from 2000 to uptill now.

(ii) Directing the respondents to evacuate the aforementioned land and handover the same to the petitioner or in alternate acquire the said land by issuance of award under the Land Acquisition Act and compensate the petitioner at the fairly determined market value of the land."

1. Brief facts forming background of the instant petition as per petitioner are that the petitioner is sole owner of the landed property situated in Khewat No.63/68 survey Nos.693, 694, 695 measuring 4 kanal 5 marlas in Mozia Changan District Neelum. The respondents acquired the demised property for the commercial use and started 50-KV Machinery Hydral Power to generate electricity for the local community. The petitioner submitted many applications at different times before respondents to grant award in favour of the petitioner because the said property measuring 4 kanal 5 marla is continuously in use of respondent Hydral Power Electricity Project from 2000 till now, but unfortunately no award/ compensation / rent amount have been issued. The petitioner contended that the respondents were liable to pay the rent of the land and either to return the land to the petitioner or to acquire it in accordance with law in lieu of compensation as per market value of the land, but till now no such action has been taken by the respondents.

2. Above writ petition was admitted for regular hearing. The respondents offered written statement, wherein they have categorically admitted the stance of the petitioner in Para No.4 of the reply. It is relevant to reproduce the same as infra:-

3. It is an admitted fact that landed property of the petitioner is under the possession of official respondents. Neither he has been compensated nor any sort of rent paid to him.

4. I have heard the learned counsel for the parties at considerable length and perused the record.

5. Ms. Romana Shabir Malik, the learned counsel for the petitioner contended that right of property is a constitutionally fundamental guaranteed right and petitioner cannot be deprived from his fundamental right save in accordance with law, thus, respondents are under legal obligations to redress the grievance of the petitioner.

6. While, Ms. Rahat Farooq, the learned Legal Advisor PDO-respondents staunchly opposed the stance of the petitioner and stated at bar that the petition is badly hit by the laches as well as the petitioner has not approached this Court with clean hands. She contended that the project was launched in the landed property of the petitioner with the request of the entire community of the village. She vehemently contended that the petitioner at the eve of the establishment of the Hydral Power Station had given his land with a demand for adjustment of two employees at local station and thereafter real nephew of the petitioner Zareed Butt was accordingly adjusted in the Project, therefore, the petition in hand actuated with ulterior designs and petitioner has not approached the court with clean hands. She requested for dismissal of the writ petition.

7. Be that as it may right of property is constitutionally fundamental guaranteed rights, which cannot be snatched in arbitrary and unlawful manner. Rights enshrined in subsection (14) of Section 4(4) of AJ&K Interim Constitution, 1974, are speaks as under:-

4. Fundamental Rights

(4). The Rights

14. Protection of property.- (1) No person shall be deprived of his property save in accordance with law.

(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation thereof and wither fixes the amount of compensation or specifies the principles on which and the manner in which compensation is to be determined and given.

(3) Nothing in this paragraph shall affect the validity of:-

(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or

(b) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be evacuee property under any law [(not being property which has ceased to be evacuee property under any law); or

[(c) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or

(d) any law, providing for the taking over of the management of any property by the Government for a limited period, either in the public interest or in order to secure the proper management of property, or for the benefit of its owner; or

(e) any law providing for the acquisition of any class of property for the purpose of -

(i) providing education and medical aid to all or any specified class of State Subjects; or

(ii) providing housing and public facilities and service such as roads, water supply, sewerage, gas and electric power to all or any specified class of State Subjects; or

(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or

(f) any law in force immediately before the coming into force of [the Constitution.]."

Explanation.-

1. Respondents have straightforwardly admitted the stance of the petitioner. The petitioner has successfully made out his case for direction. It is trite law, thing admitted need not to be proved. No doubt that rights of individual are always to yield in favour of rights of public at large but simultaneously nobody can be deprived from his constitutionally guaranteed fundamental rights without adopting the due process of law, which adamant to the fact that compensation as per scheme of law in light of the property which is likely to be acquired or required for the public purpose otherwise any sort of claim or taking possession of landed property of any citizen/ state subject, without adopting due procedure, is unlawful.

2. Constitutionally fundamental guaranteed rights neither can be snatched nor even could be waived by a person himself. Any alleged agreement or instrument which postulates that person claiming compensation/ acquisition of the landed property has already waived or abandoned the rights bears no weight. Stance projected by the respondents the landed property of the petitioner is a barren piece of land surrounded two sides by rocks could only be utilized for the purpose of grazing or local stone made flour mills (Jandar).

3. As the enforcement of the constitutionally fundamental guaranteed rights is involved in the instant case, thus, this Court cannot remain aloof and onlooker. Exercising the powers to implead the necessary parties in the lis, I hereby add the Azad Govt. through Chief Secretary of AJ&K Govt. Muzaffarabad and Collector District Neelum as parties in the instant writ petition in order to redress the genuine grievance of the petitioner.

4. So far as matter qua involvement of public purpose in a way to determine as to whether the purpose demonstrated by acquiring agency comes within the parameters and compass of public purpose is to be decided by the Government and High Court in its extraordinary jurisdiction conferred under Article 44 of the Interim Constitution, 1974 cannot step in the shoes of Government.

2025 Y L R 955

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

Laique Ahmed, Assistant Professor Economics---Petitioner

Versus

Chaudhary Nazar Hussain Chairman Azad Jammu and Kashmir Intermediate and Secondary Education Board Mirpur Azad Jammu and Kashmir and 4 others---Respondents

Criminal Misc. Petition No. 33 of 2024, decided on 6th December, 2025.

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

----Art. 45---Contempt petition---Petitioner filed writ petition for restraining the respondents from recalling the Notification before completion of deputation period of the petitioner but respondents recalled the said Notification despite issuance of stay order by High Court---Held, that record showed that the status quo order was properly served upon respondents and that fact had also been admitted by them during Court proceedings when charge sheet/questionnaire was put to them that they were aware of status quo order---Thus, the action of respondents was a loud and conspicuous transgression of Court order as that fact had been sufficiently substantiated from documentary record placed on record by the petitioner---Under law when contempt proceedings were initiated against a person, he was under obligation to prove his innocence---Respondents on issuance of Court notice submitted unconditional apology---Unconditional apology was not accepted for the reason that the same appeared to be just a half-hearted formality, always observed as a routine matter in such type of quasi criminal proceedings---In the instant case the respondents on one hand tendered and offered an unconditional apology while on the other hand defended their action by stating that orders had been issued by them in the light of the recommendations of Board of Governors---Respondent No. 1 admitted that he had issued the orders despite notice of restraining order of the Court and respondent No. 2 also admitted that he was aware of status quo order issued by the Court but despite that not only participated in the meeting of Board of Governors as member but also passed recommendations against petitioner, hence disruption of Court order by respondents was not only sufficiently substantiated but also accepted---Actions of respondent No. 1 tantamount to disrespecting the Courts as he did not bother to value the Court orders---Conduct of respondents was a glaring contempt---Respondents failed to substantiate their innocence, rather it had been amply proved that they willfully disobeyed the order of the Court while issuing the impugned orders, hence, any lenient view by the High Court would tantamount to encouraging recidivism and inspire likeminded persons to ignore, disregard, jump and neglect the commands of the Courts---Petition was allowed by awarding sentence of 15 days simple imprisonment to respondent No. 1, whereas respondent No. 2 was awarded sentence of 7-days simple imprisonment.

2000 SCMR 1969 rel.

Muhammad Raza-ul-Haq for Petitioner.

Ch. Shakeel Zaman for Respondents.

Date of hearing: 5th December, 2024.

Judgment

Chaudhary Khalid Rasheed, J.---The captioned application has been preferred under Article 45 of the Interim Constitution, 1974 for initiation of contempt proceedings against respondents/ contemnors.

Facts giving rise to the instant petition are, petitioner herein filed a Writ Petition No.2326/2024 before this Court on 11.09.2024 with a prayer that respondents be restrained from recalling the notification 26.04.2024 before completion of deputation period of the petitioner. This Court vide order dated 12.09.2024 directed that status quo prevailing at the moment shall be maintained till next date of hearing, subject to objections from other side, which was extended as the case was not fixed for hearing before the Court. During the pendency of the said writ petition and despite issuance of the stay order by this Court, even dated orders passed on 21.11.2024 were issued, whereupon the captioned petition has been submitted to initiate a contempt proceedings against respondents.

The learned counsel for petitioner by referring to the relevant documents contended that status quo order was issued by this Court in the terms that petitioner shall not be disturbed from his present place of posting and his adjustment order shall not be rescinded but despite that respondents while issuing orders dated 21.11.2024 violated the order of the Court, hence, entail to be punished for disobeying and disregarding the orders of the Court. He further argued that in para 3 of the application it has been blatantly illuminated that status quo order dated 12.09.2024 was duly communicated to the respondent and in written reply the respondents admitted para 3 of the application as correct, hence, admitted the service of summons upon them. The learned Advocate pressed that respondent No.2 stated in the open Court during case proceedings and in reply of questionnaire that no other case is pending against him in the Courts however, another contempt petition against respondent No.2 is subjudice before this Court and is list at serial No.18 of the case list of this bench for today, hence, tell a lie in the open Court, thus, respondents are not entitled to get any leniency of the Court.

The learned counsel for respondents argued with vehemence that meeting of Board of Governors was convened, the orders dated 21.11.2024 were issued on the recommendations of the Board of Governors but subsequently the orders dated 21.11.2024 have been recalled by the Chairman. He further argued that as per note on the minutes of meeting of the Board of Governors the orders to the extent of petitioner were liable to be executed through Secretariat Higher Education after decision by this Court, so, the order of the Court has not been violated, hence, prayed to drop the proceedings. He strenuously claimed that respondent have given assurance to the petitioner that in future no illegal action shall be taken against him, he shall be provided a pleasant environment in performance of his duties as Secretary Board and all the petitioners in other contempt petitions pending against respondents in the Courts shall be dealt with amicably out of Court. While concluding the arguments, the learned counsel for respondents submitted that respondents have already tendered unconditional apology and today sine any stance left themselves at the mercy of the Court.

I have heard the learned counsel for the parties, perused the record of the case with utmost care and caution.

At the very outset it is pertinent to mention that the basic object to proceed for contempt is to maintain the confidence of the general public and the litigants in the Courts in order to rescue the course of justice free and fair to ensure the administration of law and justice thus, the primary goal of awarding punishment to the persons who violate the Court orders is to create a deterrence in the likeminded persons who without bothering for the consequences do transgressions and pollute legal ethics and law.

It is relevant to mark that respondents Nos. 3 to 5 were not party in the original writ petition, hence, proceedings to their extent were dropped vide order dated 28.11.2024.

A perusal of record reveals that petitioner filed a writ petition before this Court by pleaded that he was serving as Assistant Professor BS-17 Govt. boys Degree College Afzal Pur and vide notification dated 26.04.2024, was deputed as Secretary Azad Jammu and Kashmir Board of Intermediate and Secondary Education, however, he apprehended that respondents are flexing their muscles in order to manage to rescind the notification dated 26.04.2024 on political intervention, hence, prayed to restrain the respondents to recall the notification dated 26.04.2024. This Court vide order dated 12.09.2024 while allowing application for ad-interim relief issued status quo till next date of hearing by prohibited respondent to cancel, amend or modify notification dated 26.04.2024, subject to objections from other side and the case was fixed for 30.09.2024. On 30.09.2024 the case was not fixed before the Court for hearing, an application for extension of status quo already issued by Court was filed by petitioner and the case was adjourned for 14.11.2024. On 14.11.2024 the case was again not listed before the Court for hearing as tour to circuit was not scheduled then the case was relisted for 02.12.2024.

On 12.11.2024 meeting of Board of Governors of Azad Jammu and Kashmir Intermediate and Secondary Education Board Mirpur was convened by Chairman of the Board/respondent No.1, herein and got recommendations that petitioner be repatriated to his parent department and proceedings under Efficiency and Discipline Rules, 1977 shall be initiated against him, consequently orders dated 21.11.2024 have been issued. Vide orders dated 21.11.2024 the authority of petitioner to perform as Secretary Board has been snatched, ordered to be repatriated to his parent department and further recommended to be proceeded under Efficiency and Discipline Rules, 1977, thus, the orders dated 21.11.2024 were issued in a flagrant and palpable violation of status quo order issued by this Court.

The status quo order was properly served upon respondents and this fact has also been admitted by them during Court proceedings when charge sheet/questionnaire was put to them that they were aware of status quo order. Thus, the action of respondents is a loud and conspicuous transgression of Court order as this fact has been sufficiently substantiated from documentary record placed on record by the petitioner. Under law when contempt proceedings are initiated against a person, he is under obligation to prove his innocence. Reliance may be placed on 2017 SCR 1411.

Though the desecration of Court order by respondents was proved from documentary evidence brought on record but for further satisfaction of the Court and in order to provide a fair right of hearing to prove their guiltlessness and purity, they were asked to file a written reply/objections on the application if any. The respondents on issuance of Court notice vide order dated 26.11.2024 annulled all the orders dated 21.11.2024 and submitted unconditional apology. Unconditional apology was not accepted for the reason that the same was appeared to be just a half-hearted formality, always observe as a routine matter in such type of quasi criminal proceedings hence, not entails to be pondered. The superior Courts have held various grounds to be considered while accepting apology i.e. (1) apology is offered at the earliest stage of proceedings and may not be postponed till fag-end of proceedings; (2) apology must be unconditional, unreserved and unqualified; (3) apology must be satisfactorily represent sincere and genuine remorse and should not be half-hearted or mere formality and (4) the contemnor should not endeavour to justify his conduct. Reliance may be placed on 2000 SCMR 1969.

In the instant case the respondents at one hand tendered and offered an unconditional apology while on the other hand defended their action by stated that orders dated 21.11.2024 have been issued by them in the light of the recommendations of Board of Governors, hence, was not deserved to be acknowledged.

The vernacular and exposed violation of Court order is apparent on the face of the record and the reason listed in the application for unconditional apology was not justified to drop the proceedings because in the objections presented by the respondents they did not deny the issuance of orders dated 21.11.2024 in presence of status quo order by this Court but inspite of this bitter reality another chance was extended to the respondents just in order to satisfy the conscious of the Court, following questionnaire/charge sheet was put to accused/contemnors on 02.12.2024 which was answered as follows:-

2025 Y L R 992

[High Court (AJ&K)]

Before Mian Arif Hussain and Chaudhary Khalid Rasheed, JJ

Sajid Akram---Appellant

Versus

The State through Abdul Jalil and another---Respondents

Criminal Appeal No. 16 of 2019, decided on 15th November, 2024.

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

----Ss. 302(b), 458, 337-A(i), 337-F(i), 337-D(i), 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 17(4)---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, lurking house-trespass or housebreaking by night after preparation for hurt, assault or wrongful restraint, shajjah-i-khafifah, ghayr-jaifah-damiyah, jaifah, abetment, common intention, harabah, possessing illicit weapons--- Appreciation of evidence---Accused was charged that he along with his co-accused entered into the house of complainant, took away cash, gold ornaments, 12-bore rifle and documents and made firing due to which sister-in-law of complainant was hit and died, whereas his wife sustained firearm injuries---Admittedly convict-appellant had been involved in the case in view of the statement of co-accused, who was an absconder---No one from the complainant side or his inmates identified appellant, though it was sine qua non for the prosecution to conduct the identification parade of the convict appellant---Admittedly, no identification parade had been con-ducted---Co-accused also nominated some other persons as accused but all of them were discharged under S.169 Cr.P.C. by the police during investigation except the convict-appellant, thus the statement of co-accused by involving convict appellant became highly doubtful and was required to be corroborated by other reliable evidence--- In the instant case it was apparent from the available record that the statement of co-accused to the extent of involvement of convict-appellant had not been corroborated by any other piece of evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 458, 337-A(i), 337-F(i), 337-D(i), 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 17(4)---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, lurking house-trespass or housebreaking by night after preparation for hurt, assault or wrongful restraint, shajjah-i-khafifah, ghayr-jaifah-damiyah, jaifah, abetment, common intention, harabah, possessing illicit weapons--- Appreciation of evidence---Non-recovery of weapon of offence---Accused was charged that he along with his co-accused entered into the house of complainant, took away cash, gold ornaments, 12-bore rifle and documents and made firing due to which, sister-in-law of complainant was hit and died, whereas his wife sustained firearm injuries---As per the contents of FIR, all three accused persons were armed with Kalashnikov but neither any recovery of Kalashnikov had been made on the instance of convict-appellant nor any other alleged snatched article was recovered on the pointation of the convict-appellant---Such reality alone ipso facto shrouded the prosecution version into mystery to the extent of appellant---Appeal against conviction was allowed in circumstances.

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

----Ss. 302(b), 458, 337-A(i), 337-F(i), 337-D(i), 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), Ss.17(3) & 17(4)---Arms Ordinance (XX of 1965), S. 13---Qatl-i-amd, lurking house-trespass or housebreaking by night after preparation for hurt, assault or wrongful restraint, shajjah-i-khafifah, ghayr-jaifah-damiyah, jaifah, abetment, common intention, harabah, possessing illicit weapons---Appreciation of evidence---Improvements in the statement of witnesses---Accused was charged that he along with his co-accused entered into the house of complainant, took away cash, gold ornaments, 12-bore rifle and documents and made firing due to which sister-in-law of complainant was hit and died, whereas his wife sustained firearm injuries---Record showed that no prosecution witness had nominated convict-appellant in their statements recorded under S.161, Cr.P.C. whereas the complainant had made improvement in his Court statement by deposing that two accused went to the other rooms of the house for search whereas in the FIR, no specific role was attributed to the convict appellant---Complainant also deposed in his Court statement that he knew convict-appellant before the occurrence thus, he could nominate the convict appellant in the FIR if was involved---Appeal against conviction was allowed, in circumstances.

2003 PCr.LJ 1778; 1976 SCMR 236; 1985 SCMR 1684; 1993 SCMR 550 and 2005 PCr.LJ 22 ref.

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

----Ss. 302(b), 458, 337-A(i), 337-F(i), 337-D(i), 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3) & (4)---Pakistan Arms Act (XX of 1965), S. 13---Qatl-i-amd, lurking house-trespass or housebreaking by night after prepara-tion for hurt, assault or wrongful restraint, shajjah-i-khafifah, ghayr-jaifah-damiyah, jaifah, abetment, common intention, harabah, possessing illicit weapons--- Appreciation of evidence---Co-accused discharged by the police---Accused was charged that he along with his co-accused entered into the house of complainant, took away cash, gold ornaments, 12-bore rifle and documents and made firing due to which, sister-in-law of complainant was hit and died, whereas his wife sustained firearm injuries---Nothing was available on record to connect the appellant to the alleged occurrence because the guilt of the appellant had not been proved to the hilt---Statement of co-accused on the basis of which the convict-appellant was taken into custody and investigated was not corroborated by any other reliable piece of evidence, rather it was flagrantly doubtful for the reason that during investigation, co-accused also involved some other persons in the occurrence who were discharged by the police during investigation under S.169 Cr.P.C.---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 458, 337-A(i), 337-F(i), 337-D(i), 109 & 34---Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979), S.17(3) & (4)---Pakistan Arms Act (XX of 1965), S. 13---Qatl-i-amd, lurking house-trespass or housebreaking by night after preparation for hurt, assault or wrongful restraint, shajjah-i-khafifah, ghayr-jaifah-damiyah, jaifah, abetment, common intention, harabah, possessing illicit weapons--- Appreciation of evidence---Lurking house trespass, applicability of---Accused was charged that he along with his co-accused entered into the house of complainant, took away cash, gold ornaments, 12-bore rifle and documents and made firing due to which, sister-in-law of complainant was hit and died, whereas his wife sustained firearm injuries---In the site plan, the location of bathroom where the accused caught hold of the niece of complainant had not been mentioned rather shewas shown at place No.3 along with other inmates, hence it could not be opined that the said bathroom was located within the premises of house and the convict-appellant forcibly entered into the house---Lurking generally means to wait or move in a secret way, often with negative connotations like waiting to attack or do something wrong---Though the location of bathroom had not been illuminated in the site plan but as per prosecution story the accused persons committed lurking house trespass because when niece of complainant went to bathroom they were already waiting to attack---It had not been substantiated from any angle or stretch of any evidence that the convict-appellant was involved in the case and committed the offence of lurking house trespass into the premises of the complainant---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---If a slightest doubt was observed in the prosecution version, the benefit of the same had to be extended in favour of accused as a matter of right and not grace.

Sardar Muhammad Suleman Khan and Sumaira Noreen for the convict/ Appellant.

Sardar Muhammad Shafique, A.A.G. for the State.

Date of hearing: 11th November, 2019.

Judgment

Chaudhary Khalid Rasheed, J.---The captioned appeal has been preferred against the judgment recorded by learned District Court of Criminal Jurisdiction Poonch/Rawalakot dated 27.04.2019 whereby, appellant Sajid Akram has been convicted in offences under section 458/34-APC by awarding 14 years simple imprisonment along with fine of Rs.50,000/-. He was also ordered to pay compensation amount of Rs.5,00,000/- to the legal heirs of deceased under section 544(2) Cr.P.C., in case of failure to pay compensation he has to undergo for further six months simple imprisonment.

Facts of the case which culminated into the captioned appeal briefly stated are, complainant Abdul Jalil filed a written application Exh.PA at Police Station Datote on 13.09.2009 qua it was alleged that on 12.09.2009, he along with his brother Muhammad Ghazan reached back to their home after offering Tarawee prayer, at 11:00 pm his niece Mst. Mehwish Nawaz went to bathroom, after a while, Mehwish raised hue and cry whereupon he along with Muhammad Ghazan, Mst. Naseem Akhtar (wife of complainant), Mst. Manshad Begum (sister in law of complainant) and other children went out and saw that one veiled person caught hold of Mehwish Nawaz from her hairs while armed with Kalashnikov whereas two other veiled persons also loaded with Kalashnikovs was standing nearby, warned to refrain to raise any noise, taken then in a room, beaten the complainant and his brother with the butt of Kalashnikov, snatched two mobile phones. One veiled person stood there as a watchman while two other persons went to the other rooms for search, they took away Rs.1,00,000/- cash, three set of gold ornaments, 12 bore rifle, identity card and other documents, thereafter the veiled person stood as guard was caught hold by his brother Ghazan and shut the door whereupon

two other veiled persons started firing with Kalashnikov from outside the room, resultantly, Mst. Naseem Akhtar and Mst. Manshad Begum sustained serious injuries consequently sister in law of complainant Mst. Manshad

Begum succumbed to her injuries. Veiled person who caught hold was Zohaib son of Noor Muhammad. From two other veiled persons one was identified as Niaz alias Babu. It was contended that the accused committed the occurrence in connivance with Sayyab Abbasi.

On this report FIR No.66/2009 was registered at Police Station Datote in offences under sections 17(3,4) EHA, 337-A(i), F(i), D(i), E(iii), 109, 34, 458 APC and 13/20/65 Arms Ordinance. After investigation the police submitted its report under section 173 Cr.P.C. on 04.01.2010 against accused Zohaib whereas, convict-appellant was shown as absconder. On arrest of convict-appellant he was investigated and challan to his extent was presented before the trial Court on 30.05.2014. The statement of convict-appellant under section 265-D Cr.P.C. was recorded on 07.07.2014, accused pleaded innocence, whereupon the prosecution was required to produce evidence in order to prove the guilt of the accused. Upon completion of prosecution evidence, the statement of convict appellant was recorded under section 342 Cr.P.C. on 18.02.2019 who again claimed innocence, however opted neither to produce evidence in defence nor to record his statement under section 340(2) Cr.P.C. The learned trial Court after hearing pro and contra, convicted the accused appellant in offence under section 458/34-APC by awarded fourteen years simple imprisonment along with fine of Rs.50,000/- vide its impugned judgment dated 27.04.2019, hence, the captioned appeal to assail the conviction recorded by the Court below.

The learned counsel for the convict-appellant vehemently argued that appellant has been convicted under section 458-APC, however the offence under section 458-APC is not attracted because the complainant himself stated in the FIR that they allowed the accused persons to enter into the house, hence the question of lurking which is sine qua non for an offence under section 458-APC does not arise. It was further submitted that main accused Babu has died in police encounter whereas the other accused Zohaib is still absconder. The learned advocates further claimed with vehemence that neither house trespassed by the convict-appellant has proved nor any recovery has been effected from the accused persons. Moreover no medical report of injuries alleged to be inflicted to the complainant or his inmates from the hands of convict-appellant is available on the record. The learned counsel alleged that the convict appellant has been involved in the case merely on the statement of co-accused Zohaib and there is nothing more to involve him in the alleged occurrence. They also stated that the convict-appellant is not nominated in the statements recorded under section 161 Cr.P.C. They pressed into service that complainant during his Court statement made improvement and ascribed role to the convict appellant but the Court below has miserably failed to appreciate the relevant evidence by wrongly convicted the appellant on the basis of a contradictory statements of prosecution witnesses, hence, conviction of the appellant is liable to be brushed aside. They referred following case laws:

1. 2003 PCr.LJ 1778;

2. 1976 SCMR 236;

3. 1985 SCMR 1684;

4. 1993 SCMR 550;

5. 2005 PCr.LJ 22.

The learned AAG supported the impugned judgment on all counts by submitted that the prosecution has proved the case against the convict appellant beyond shadow of reasonable doubt, thus has rightly been convicted by the Court below.

We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

The prosecution pleaded in FIR that three veiled persons came to the house of complainant at the night of occurrence, one of them caught hold of the niece of the complainant Mehwish Nawaz from her hairs and two others were standing nearby and all of the them were veiled. It is further submitted that when they succeeded to caught hold one of accused and unveiled him, he was Zohaib whereas they identified one other trespasser as Niaz alias Babu. It is also an admitted position that convict-appellant has been involved in the case in view of the statement of co-accused Zohaib who is absconder whereas no one from the complainant or his inmates identified him, though it was sine qua non for the prosecution to conduct the identification parade of the convict appellant but admittedly no identification parade has been conducted. The co-accused Zohaib also nominated some other persons as accused but all of them were discharged under section 169 Cr.P.C. by the police during investigation except the convict-appellant, thus the statement of co-accused by involving convict appellant becomes highly doubtful and was required to be corroborated by other reliable evidence but in the instant case it is apparent from the available record that the statement of co-accused Zohaib to the extent of involvement of convict-appellant has not been corroborated by any other piece of evidence.

As per the contents of FIR, all three accused persons were armed with Kalashnikov but neither any recovery of Kalashnikov has been effected on the instance of convict-appellant nor any other alleged snatched article was recovered on the pointation of the convict-appellant, this reality alone ipso facto shrouded the prosecution version into a mystery to the extent of appellant.

It is pertinent to mark that no prosecution witness has nominated convict-appellant in their statements recorded under section 161 Cr.P.C. whereas the complainant has made improvement in his Court statement by deposing that accused Babu and Sajid went to the other rooms of the house for search whereas in the FIR, no specific role was attributed to the convict appellant. The complainant also deposed in his Court statement that he knew convict-appellant before the occurrence thus, he can nominate the convict appellant in the FIR if was involved.

After going through the entire prosecution evidence and record of the case, we are of the considered view that there is nothing on record to connect the appellant to the alleged occurrence because the guilt of the appellant has not been proved to the hilt. The statement of co accused Zohaib on the basis of which the convict-appellant was taken to custody and investigated is not corroborated by any other reliable piece of evidence rather flagrantly doubtful for the reason that during investigation, he also involved some other persons in the occurrence who were discharged by the police during investigation under section 169 Cr.P.C.

As per medical report, Mst. Manshad Begum expired due to a firearm injury, however as stated earlier no firearm weapon has been recovered on the pointation of convict-appellant.

2025 Y L R 1023

[High Court (AJ&K)]

Before Mian Arif Hussain and Chaudhary Khalid Rasheed, JJ

Bilal Javaid and another---Appellants

Versus

The State through Advocate General and others---Respondents

Criminal Appeals Nos. 01, 04 and Reference No. 10 of 2019, decided on 15th November, 2024.

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

----Ss. 302(b) & 341---Qatl-i-amd, wrongful restraint---Appreciation of evidence---Accused-appellants were charged for making firing upon complainant party, due to which one person died while another sustained firearm injury---Record showed that the place, time, mode of occurrence, presence of convict "BJ" and deceased at the place of occurrence, death of deceased with firearm injury remained undisputed---Defence despite lengthy cross-examination failed to extricate anything harmful to the prosecution version regarding place, time, manner of occurrence and the presence of convict / appellant--- Prosecution witnesses to the extent of role attributed to convict "BJ" remained stable during lengthy cross-examination---Recovery of pistol/ weapon of offence on the pointation of accused "BJ" was also proved and as per report of Forensic Science Agency, the pistol recovered on the pointation of said accused was found to be in mechanical operating condition, functioning properly and the empty recovered from the place of occurrence was identified as having been fired from the same pistol---Medical evidence also corroborated the prosecution version that deceased expired due to firearm injury---Circumstances established that the prosecution had proved its case beyond shadow of doubt, however due to mitigating circumstances, death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 341---Qatl-i-amd, wrongful restraint---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused-appellants were charged for making firing upon complainant party, due to which one person died while another sustained firearm injury---Record showed that eye-witness of the occurrences, an independent witness, though did not deny that deceased received injury due to fire of accused "BJ" but deposed that he did not see accused "BJ" firing at deceased---Bedrock precept of criminal justice was that when the eye-witnesses took two different versions, the one favourable to the accused had to be followed---Statements of other prosecution witnesses were also not of high prestige so as to make the same basis for award of extreme penalty of Qisas---Furthermore, the bullet recovered from the body of deceased was not sent for chemical examination---Witnesses produced by the prosecution were close relatives of complainant and the only independent witness had not fully supported the prosecution version thus the accused was liable to be awarded lesser punishment---Death sentence was converted into imprisonment for life---Appeal was dismissed with modification in sentence.

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

----Ss. 302(b) & 341---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, wrongful restraint---Appreciation of evidence---Appeal against acquittal---Accused-appellants were charged for making firing upon complainant party, due to which one person died while another sustained firearm injury---As per contents of FIR, appellant "IA" made indis-criminate firing with Kalashnikov however during trial the prosecution witnesses made improvements in their statements to his extent and deposed that he fired with 30 bore pistol---Neither Kalashnikov nor empties of Kalashnikov were recovered from the place of occurrence and one of the prosecution witnesses deposed in his Court statement that appellant "IA" did not perform any role in the occurrence, hence the case of the prosecution to the extent of accused "IA" was shrouded in mystery---Premeditation on behalf of accused "IA" had also not been proved---Accused could not be convicted merely on the basis of his presence at the place of occurrence, particularly when specific role attributed to him was not substantiated---Prosecution witness deposed in his Court statement that accused "IA" and deceased were together in Bazaar on the day of occurrence and there was no enmity between them, hence the acquittal of accused "IA" by the Court below deserved to be sustained---Moreso, it is also a well settled precept of law that for recalling an acquittal order passed by court of competent jurisdiction it needs to be established that the acquittal order was perverse, arbitrary, fanciful or was not based on cogent evidence---No such eventuality had been found in the instant case rather the prosecution witnesses had improved their version during Court statements to the extent of accused "IA"---Appeal against acquittal of accused "IA" filed by complainant was dismissed, in circumstances.

2024 PCr.LJ 1383; 2017 PCr.LJ 731; 2012 PCr.LJ 452; 2010 PCr.LJ

SC (AJK) 1505 and PLD 2007 SC 249 ref.

Sardar Iftikhar Ahmed for the convict-appellants.

Sardar Asim Irshad for the Complainant.

Sardar Muhammad Shafique, A.A.G. for the State.

Date of hearing: 12th November, 2024.

Judgment

Chaudhary Khalid Rasheed, J.---The supra titled appeals and reference have been directed against the judgment passed by the learned District Court of Criminal Jurisdiction, Rawalakot dated 14.01.2019, qua accused Bilal Javaid 5/0 Muhammad Javaid has been awarded death sentence as Qisas in offence under section 302-APC, 1 month imprisonment under section 341-APC, three years imprisonment along with fine of Rs.30,000/- under section 15(2) of the Arms Act, 1965 and was burdened to pay Rs.3,00,000/- as compensation to the legal heirs of deceased, whereas accused Irfan Ahmed has been acquitted of the charges by extending him the benefit of doubt.

Facts which culminated into filing of the captioned appeals and reference briefly stated are, complainant Faisal Hussain filed a written application Exh.PA at Police Station Rawalakot on 27.06.2015, wherein it was reported that on 27.06.2015, he along with Fahad (brother), Nasir and Danish were going to Hornamera via Hi-ace No.0307/PE driven by Sarfaraz, when at 5:27 p.m. the Hi-ace reached in middle of Raant and Hornamera, accused Bilal, Zulfiqar and Irfan had blocked the road through stones, as soon as the van stopped, complainant, Fahad, Nasir and Danish get off the van, accused, Bilal Zulfiqar and Irfan started abusing. In the meanwhile, accused Bilal Javaid fired with 30 bore pistol by targeting Fahad which landed at the left side of his chest who dropped. Accused Sohail Arif while standing at some distance fired with 30 bore pistol by targeting Nasir which hit him at his right leg who also collapsed. Accused Irfan started firing with Kalashnikov. Injured Fahad succumbed to his injury consequently expired on the way to CMH Rawalakot. The motive behind the occurrence illuminated that in the morning time some altercation took place amongst Sarfaraz, Sadiq and Kamran on the timing of vans. The occurrence was stated to be witnessed by Nasir Nazir, Danish, Sarfaraz, Ali, Sohail Younus and Muhammad Nazir.

On this report an FIR No.220/2015 was registered at Police Station Rawalakot in offences under sections 302, 341, 324 and 34-APC on 27.06.2015. During investigation section 15(2-a) A.O. was inserted. Accused Zulfiqar was discharged under section 169 Cr.P.C., accused Sohail Arif stood absconded who was proceeded under section 512 Cr.P.C. and the other accused persons were sent to face the trial vide report under section 173 Cr.P.C. dated 30.09.2015. Charge was framed against accused Bilal Javaid and Irfan Ahmed under section 265-D Cr.P.C. on 29.12.2015, accused persons claimed innocence and refuted the allegations, whereupon the prosecution was directed to lead evidence in order to prove their guilt. Upon completion of prosecution evidence, the statements of accused persons under section 342 Cr.P.C. were recorded on 15.12.2018, they refuted the prosecution evidence, claimed innocence, however opted neither to produce evidence in defence nor to record their statements on oath under section 340(2) Cr.P.C. At the conclusion of trial, the learned Court below convicted the accused person by awarded them the sentences as mentioned in the preceding paragraph, hence the captioned appeal.

The learned counsel for the complainant vehemently argued that prosecution has proved its case by producing eye-witnesses of the occurrence who fully supported the prosecution version but the Court below failed to appreciate the relevant ticklish evidence in its true perspective rather acquitted the accused Irfan Ahmed on the basis of minor discrepancies. The learned advocate further claimed that as per prosecution version Irfan Ahmed premeditated the whole episode and was master mind of incident which resulted into the death of Fahad and injuries to Nasir, hence was liable to be convicted under section 302/34-APC. The learned advocate also contended with vehemence that the instant case is a case of direct evidence, hence the value of incriminating material is secondary in nature, thus the Court below has wrongly acquitted the accused Irfan Ahmed by relying upon such evidence. The learned advocate also stated that the medical evidence further strengthened the prosecution version, hence the accused Irfan Ahmed is liable to be convicted under section 302-APC. He defended the impugned judgment to the extent of conviction of the accused Bilal Javaid. The learned advocate placed reliance on the following case laws:

1. 2024 PCr.LJ 1383;

2. 2014 SCR 822;

3. 2023 SCR 115;

4. 2009 SCR 72;

5. 2009 SCR 71;

6. 2020 SCR 520

7. 2014 SCR 893;

8. 2017 PCr.LJ 731;

9. 2017 SCR 1050;

10. 2012 PCr.LJ 452;

11. 2010 PCr.LJ SC (AJ&K) 1505.

1. PLD 2007 SC 249.

The learned counsel for the convict-appellant Bilal Javaid and acquitted respondent Irfan Ahmed vehemently argued that alleged eye-witness of the occurrence Sohail Younus negated the prosecution version and deposed during cross-examination that Irfan Ahmed did not perform any role in the occurrence, thus the Court below rightly acquitted the accused Irfan Ahmed. He further submitted that as all the eye-witnesses have not supported the prosecution version pleaded in the FIR, so the award of sentence of Qisas to convict Bilal Javaid is also not justified.

The learned AAG adopted the arguments advanced by the learned counsel for the complainant.

We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

So far as the conviction of convict Bilal Javaid is concerned, as per contents of FIR, the occurrence was witnessed by complainant, Nasir Nazir, Danish, Sarfaraz, Ali, Sohail Younus and Muhammad Nazir. According to FIR, accused Bilal Javaid fired with 30 bore pistol by targeting Fahad which landed at the left side of his chest who succumbed to his injury and expired on his way to CMH Rawalakot.

P.W. Muhammad Nazir got recorded his statement on 27.02.2016 and deposed that accused Bilal fired at Fahad.

Sohail Younus also appeared in the witness box got recorded his statement on 30.03.2016, wherein he deposed that he did not witness the injured persons by receiving firearm injuries however stating that he saw pistol in the hands of Bilal.

Kashif son of Noor Muhammad also appeared as prosecution witness who deposed that occurrence took place in his presence and accused Bilal fired at Fahad.

Nasir Nazir, the prosecution witness got recorded his statement on 14.06.2017 and deposed that accused Bilal Javaid fired at Fahad with 30 bore pistol, however this witness denied his statement recorded by the police under section 161 Cr.P.C.

The other alleged eye-witness of the occurrence Sarfaraz Khan also recorded his court statement on 20.04.2018 and deposed that accused Bilal fired at deceased Fahad.

The complainant Faisal Hussain also got recorded his statement and stated that accused Bilal Javed fired with 30 bore pistol by targeting Fahad, which landed at left side of his chest which resulted into his death on his way to CMH, Rawalakot, hence the prosecution has established its case that deceased Fahad died due to firearm injury caused by accused Bilal Javaid.

The place, time, mode of occurrence, presence of convict Bilal Javaid and deceased Fahad at the place of occurrence, death of deceased with firearm injury remained undisputed and defence despite lengthy cross-examination failed to extricate anything harmful to the prosecution version regarding place, time, manner of occurrence and the presence of convict appellant. The prosecution witnesses to the extent of role attributed to convict Bilal Javed remained stable during lengthy cross-examination.

2025 Y L R 1054

[High Court (AJ&K)]

Before Sardar Liaqat Hussain and Syed Shahid Bahar, JJ

FARID AKHTAR and 4 others---Appellants

Versus

YASIR LATIF and 3 others---Respondents

Criminal Appeal No. 12 of 2019, decided on 24th December, 2024.

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

----Ss. 302(b), 459 & 392---Qatl-i-amd, hurt caused whilst committing lurking house trespass or house breaking, robbery---Appreciation of evidence---Appeal against acquittal---Recovery doubtful---Accused was charged for entering into the house of complainant, and committing murder of the deceased during robbery---Record reflected that initially the accused / respondent was not nominated by the complainant in the alleged FIR---Later on during investigation, some doubtful persons including respondent were brought under investigation by previous Investigating Officer and he in his statement recorded before the Trial Court, stated that during his investigation no proof of committing offence of murder was found from the accused- respondent---Accused-respon-dent did not tell about the murder of the deceased, due to which, no recovery was made from him---Prosecution witness during cross-examination stated that accused was arrested after 5/6 days of the occurrence---Accused-respondent remained arrested for one week and later on he was released by the police---So, in previous investigation no proof of murder of deceased was found against the accused/respondent---Later on the investigation of the case was made over to DSP on 12.05.2016, and he arrested the accused/respondent on 08.10.2016---Said Investigating Officer recovered weapon of offence i.e. churri/knife from the accused on his indication, and ear rings of deceased from the shop of gold (goldsmith)---Recovered churri was not sent to the laboratory for analysis---Recovery witness stated that accused after cleaning the churri concealed the same in the field outside the house of deceased, and later on he took the Churri and placed it in the shed of kitchen---Allegation of snatching ornaments from the deceased and recovery of the same was also doubtful in light of evidence of the prose-cution--- Circumstances established that prosecution had failed to prove its case with cogent and convincing evidence against the acquitted accused--- Appeal against acquittal was dismissed, in circumstances.

2010 SCR 113; 2014 PCr.LJ 1036; 2024 PCr.LJ 1448; 2014 SCR

1585 and PLD 1984 AJ&K SC 82 ref.

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

----Ss. 302(b), 459 & 392---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, hurt caused whilst committing lurking house trespass or house breaking, robbery---Appreciation of evidence---Appeal against acquittal---Confessional statement of accused, recording of---Accused was charged for entering into the house of complainant, and committing murder of the deceased during robbery---Statement recorded under S. 164, Cr.P.C., of the accused-respondent before Judicial Magistrate was doubtful---As per record, accused-respondent was arrested on 07.10.2016---Accused-respondent was in the judicial lock up, while his statement was recorded on 25.10.2016---Statement of the Judicial Magistrate revealed that no application was moved by the accused-respondent for recording his statement through Superintendent Jail---Moreover, the accused-respondent had not accepted his statement allegedly recorded before the Judicial Magistrate---Circumstances established that prosecution had failed to prove its case with cogent and convincing evidence against the acquitted accused---Appeal against acquittal was dismissed, in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---Benefit of a single circumstance creating doubt in the mind of a prudent person is to be given to the accused not as a matter of grace but as a matter of right.

Abdul Majeed v. State 2023 PCr.LJ 331 and Lal Bux v. State 2023 YLR 321 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Benefit of slightest doubt shaking the roots of a case must be extended to accused party.

(e) Appeal against acquittal---

----Interference---Scope---Court must be slow in reversing judgment of acquittal, unless the same is found to be arbitrary, fanciful and capricious on the face of it, or the same is the result of bare misreading or non-reading of any material.

2016 PCr.LJ 568 rel.

Rafiullah Sultani for Appellants.

Raja Javed Akhtar for Respondent No.1.

2025 Y L R 1198

[High Court(AJ&K)]

Before Mian Arif Hussain and Chaudhary Khalid Rasheed, JJ

Mazhar Khan---Appellant

Versus

Muhammad Sajid Hussain and 2 others---Respondents

Criminal Appeal No. 12 of 2019, decided on 15th November, 2024.

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

----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Extra-judicial confession---Accused were charged for committing murder of the brother of complainant and hanging his dead body with a tree---Prosecution witness allegedly in whose presence extra-judicial confession was made recorded his Court statement but he did not utter any word that accused persons made any extra-judicial confession in his presence rather deposed that one of the accused persons told him through telephonic call that he did not murder the deceased rather some girls murdered him---Said witness further deposed in his Court statement that the accused confessed his offence in his presence at Police Station, thus any confession in custody of police was of no legal value---Court below had rightly observed that extra-judicial confession could not be made basis for recording conviction unless it was strongly corroborated by tangible evidence coming from an unimpeachable source because extra-judicial confession was a weak piece of evidence---Appeal against acquittal was dismissed, in circumstances.

2016 PCr.LJ 240 rel.

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

----Ss. 302(b), 109 & 34---Criminal Procedure Code (V of 1898), S.417---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Appeal against acquittal---Motive not proved---Accused were charged for committing murder of the brother of complainant and hanging his dead body with a tree---Motive behind the occurrence was that accused had developed illicit relations with niece of the deceased whereupon the deceased forbade them to come to his house and due to such reason occurrence took place---Record showed that earlier quarrel was not established because the important witnesses in order to prove said motive had not been produced before the Court---Prosecution had also failed to prove any quarrel between the deceased and the accused prior to the incident, thus the motive behind the occurrence remained shrouded in mystery---Court below had rightly observed that the prosecution failed to prove its case against the accused/respondents, hence accurately acquitted them of the charges---Appeal against acquittal was dismissed in circumstances.

(c) Criminal trial---

----Benefit of doubt---Principle---If a slightest doubt is created in the prosecution story the benefit of the same has to be extended in favour of accused.

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

----Ss. 410 & 417---Appeal against conviction and acquittal---Distinction---Acquittal carries double presumption of innocence---Every accused person is presumed to be innocent unless proved guilty and such presumption is further strengthened by his acquittal order by a Court of competent jurisdiction---Appellate Court will interfere in the acquittal order only if it is established from the record that the same is perverse and the reasons listed in support of acquittal are artificial or ridiculous.

2005 YLR 2203; 2004 PCr.LJ 1349 and 2010 SCMR 495 rel.

Sardar Aamir Jamil for Appellant.

Sardar Muhammad Shafique, A.A.G for the State.

Sardar Naseeb Azad for the Complainant.

Date of hearing: 13th November, 2024.

Judgment

Chaudhary Khalid Rasheed, J.---The Supra titled appeal has been directed against judgment passed by the learned Additional District Court of Criminal Jurisdiction, Rawalakot dated 25.05.2019, whereby accused respondents have been acquitted of the charges by extending them the benefit of doubt.

Facts which culminated into filing of the captioned appeal briefly stated are, complainant Mazhar Khan son of Muhammad Hussain filed a written application Exh.PA at Police Station Rawalakot on 10.05.2007, wherein it was stated that on 20.10.2006 his real brother Zaffar Iqbal went out of home to attend the phone call of brother Munawar Hussain but did not come back. On 21.10.2006 at 07:00 a.m. the dead body of Zaffar Iqbal was found hanging with a tree, whereupon he reported the matter at Police Station Rawalakot on the same day. During proceedings, under section 174 Cr.P.C., it appeared that Sajid, Afraz Ali and Zahid with the connivance of Muhammad Saleem have murdered his brother and hanged his dead body with the tree. The motive behind the occurrence was mentioned that accused persons were used to come to the house of Zaffar Iqbal who many times forbade them but they pay no heed and due to that the accused persons quarreled with Zaffar Iqbal two times in presence of witnesses.

On this report, FIR No.107/2007 Exh.PB was registered at Police Station Rawalakot in offences under sections 302/109 and 34-APC. After formal investigation report under section 173 Cr.P.C. was submitted before Additional District Court of Criminal Jurisdiction Rawalakot on 20.06.2007. Charge was framed under section 265-D Cr.P.C. on 11.08.2007, accused persons claimed innocence and refuted the allegations, whereupon prosecution was directed to lead evidence in order to prove their guilt. Upon completion of prosecution evidence, the statements of accused persons under section 342 Cr.P.C. were recorded on 09.04.2019 who again refuted prosecution evidence by claiming innocence. At the conclusion of trial, the learned trial Court acquitted the accused persons from all the charges by extending them the benefit of doubt vide its impugned judgment dated 25.05.2019, hence, the captioned appeal.

The learned counsel for the complainant/appellants vehemently argued that accused persons did extra-judicial confession before P.W.14 Muhammad Javaid and other prosecution witnesses which fact has been proved by the statement of Muhammad Javaid and other witnesses in whom presence extra-judicial confession was made. The learned advocate further argued that motive behind the occurrence is also substantiated in a legal fashion. He contended that the prosecution successfully proved the allegation levelled against the accused/ respondents but the Court below miserably failed to appreciate the relevant evidence in its true perspective and wrongly acquitted the accused/ respondents, hence requested that the appeal be accepted and the accused/ respondents be convicted.

The learned counsel for the respondents supported the impugned judgment on all counts by submitted that the prosecution has failed to prove its case, hence the Court below rightly acquitted the accused/respondents.

The learned AAG adopted the arguments advanced by the learned counsel for the complainant.

We have heard the learned counsel for the parties, gone through the record of the case with utmost care and caution.

2025 Y L R 1739

[High Court (AJ&K)]

Before Sardar Muhammad Ejaz Khan, J

Israr Ahmed---Petitioner

Versus

Ex-Officio Justice of Peace/Sessions Judge, Poonch, rawalakot Azad Jammu and Kashmir and 15 others---Respondents

Writ Petition No. 871 of 2021, decided on 29th January, 2025.

Criminal Procedure Code (V of 1898)---

----S. 22-A---Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), Art. 44---Electricity Act (IX of 1910), S. 12---Writ petition---Power of Justice of Peace---Electricity Supply Lines, installation of---Advertent negligence of Electricity Department---Allegedly, Electricity Department installed high voltage transmission wires 3/4 feet above the roof of petitioner's house---Petitioner's son got caught in the high transmission lines and was severely burned by electric shock---Petitioner moved an application before the Justice of Peace for the registration of criminal case against the responsible authorities of Electricity Department after fulfilling the formalities, but was dismissed---Validity---Record showed that no permission and consent of the landowner was obtained---No approved map issued for the installation of high transmission line was produced---It was an admitted fact that high voltage electricity transmission lines had been installed and passed above the house of petitioner without taking into account the relevant provisions of law---Section 12 of the Electricity Act, 1910, clearly barred the electricity department to lay down any electric supply line or other work without the consent of its owner or occupier---Taking into account the relevant provisions of Electricity laws and criminal law and its enabling provisions, the responsible staff and officials of electricity department appeared to be negligent and this negligent act, prima-facie, constituted a cognizable offence, which imposed criminal liability on them---An act of negligence was not always simple particularly when the negligence resulted into costing lives of innocent---The degree of negligence varied in its consequence from person to person---Version of the petitioner taken in his pleadings had not been denied specifically rather an earlier incident also took place in year 1994 due to which brother of petitioner was electrocuted for which he verbally and in writing reported the matter time and again before the concerned official and staff of electricity department---It was an admitted fact that the son of petitioner was badly burnt due to electric shock and remained under treatment in hospital, where he was admitted and discharged time and again because of treatment---As per report of concerned doctor, 12% of vital parts of body of petitioner's son were burned, which was clear from the snapshots appended along with writ petition---Thus, the concerned staff and officials of electricity department appeared to have been negligent in discharging their duties efficiently and diligently rather they were fully aware of the consequences of such negligence---Therefore, they prima facie appeared to be guilty of 'advertent negligence, which constituted a cognizable offence---Writ petition was accepted accordingly.

Sardar Jam Sadiq for Petitioner.

Raja Muhammad Kabir Kiani, Legal Advisor Electricity Department.

A.A.G. for the Official Respondents.

2025 Y L R 1834

[High Court (AJ&K)]

Before Sadaqat Hussain Raja C.J and Sardar Muhammad Ejaz Khan, J

Bilawal Tahir and others---Appellants

Versus

Shakeel Ahmed and others---Respondents

Criminal Appeals Nos. 13, 20 of 2019, 18 and 23 of 2024 and Criminal Reference No. 12 of 2019, decided on 14th November, 2024.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149, 109---Arms Act (XX of 1965), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restraint, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Ocular account of the incident proved---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---Ocular account of the incident had been furnished by three eye-witnesses---All the three eye-witnesses appeared before the Court, got recorded their statements and completely supported the prosecution version---From perusal of the statements of eye-witnesses, it revealed that they had unanimously supported the prosecution version and were put to lengthy cross-examination by the defense, however, nothing had been extracted from them, which might suggestive of the fact that eye-witnesses had totally recorded a false statement on account of enmity---Deposition of eye-witnesses seemed to be natural---One of the eye-witnesses was an important witness in the present case, because, he was present in the vehicle along with the deceased---Record showed that said witness also got injured during the occurrence, however, luckily survived---Record also showed that he received multiples injuries on the body and his medical report was also appended with the record---Thus, said witness was a natural witness---Appeal against conviction was dismissed, in circumstances.

2011 SCMR 872 ref.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149 & 109---Arms Act (XX of 1965), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restrains, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Recovery of weapon of offence---Reliance---Scope---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---Recovery of Kalashnikov was allegedly made on the pointation of convict-appellant, "B", and recovery memo. was prepared in presence of witnesses, which was corroborative piece of evidence and further strengthened the prosecution case---In presence of witnesses, recoveries of incriminating materials were made and recovery memos. were prepared---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149, 109---Arms Act (XX of 1965), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restraint, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Related witnesses, evidence of---Reliance---Scope---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---Allegedly, witnesses produced by the prosecution were related to the deceased, therefore, no reliance could be placed upon them---In the instant case although the prosecution witnesses were interested and closely related with the deceased but they did not nurture any grudge or rancor against the accused-party, therefore, their evidence could not be discarded on that score only---In the instant case beside ocular version, sufficient and strong corroboratory evidence had been produced by the prosecution---Appeal against conviction was dismissed, in circumstances.

2017 PCr.LJ 731 rel.

(d) Criminal trial---

----Interested witness---Reliance---Scope---An interested witness is one who has a motive for falsely implicating an accused-person.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149 & 109---Arms Act (XX of 1965), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restraint, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Material discrepancies and contradictions in the statements of the eye-witnesses---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---Appellant alleged that there were material discrepancies and contradictions in the statements of the eye-witnesses, however he could not point out any major contradiction, which could shatter the case of the prosecution---While appreciating the evidence, the Court must not attach undue importance to minor discrepancies and such minor discrepancies which do not shake the salient features of the prosecution case should be ignored---Accused could not claim premium of such minor discrepancies---If importance be given to such insignificant inconsistencies then there would hardly be any conviction---Appeal against conviction was dismissed, in circumstances.

2022 SCMR 2024 rel.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149, 109---Arms Act (XX of 1965), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restraint, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Chance witnesses, evidence of---Scope---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---Witnesses produced by the prosecution were natural and they were present at the place of occurrence at the relevant time---Even otherwise, merely on the ground that the eye-witnesses were the chance witnesses the case of the prosecution could not be smashed out particularly, when the prosecution had succeeded to prove the presence of the witnesses satisfactorily---However, if the prosecution fail to establish their presence for making the evidence then the corroboration is necessary for making the evidence admissible---Testimony of the chance witnesses should be carefully examined---Yardstick to judge the testimony of the chance witnesses, is to examine and take into account the statements of eye-witnesses---Eye-witnesses remained consistent on the main points and made their statements in line with each other---All the eye-witnesses proved their presence at the relevant time, satisfactorily---No material discrepancies had been brought on record---Appeal against conviction was dismissed, in circumstances.

PLD 2009 SC(AJ&K) 22 ref.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149 & 109---Arms Act (XX of 1965), S. 15---Criminal Procedure Code (V of 1898), S. 161---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restrain, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Delay in recording the statements of witnesses by police---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---Record showed that although statements under S.161, Cr.P.C, were recorded after sometime, however, such type of statements recorded after having served a subordinate purpose, were not treated as substantive evidence against the accused and no finding of guilty could be based on them---Person can be examined under this S.only in respect of question relating to the case i.e. with regard to the offence investigated---Moreover, delay in recording the statement under S.161, Cr.P.C, is not by itself sufficient to discard its value---Even otherwise, from the statements recorded by the witnesses under S.161, Cr.P.C, it was found that they had not changed their version---Appeal against conviction was dismissed, in circumstances.

2020 SCMR 1049 ref.

Qaiser Hussain alias Kashi alias Kashif v. The State 2022 PCr.LJ 1126 rel.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149 & 109---Arms Act (XX of 1965), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restraint, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Motive proved---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---In the present case, the enmity between the parties was established from the record, because the contents of FIR also disclosed that on the fateful day, accused-persons, the complainant party in earlier case, called the complainant party for negotiation, however, deceived them and committed the occurrence---So, it could safely been said that there was a motive in the mind of the accused-persons involved in the present case against the complainant/deceased party to take revenge of the previous cases---Thus, the prosecution had successfully proved its motive beyond any shadow of doubt and the Trial Court had arrived at right conclusion---Even otherwise, if the prosecution fails to prove its motive even then an accused is not entitled to be discharged from the case, if his guilt is proved through direct evidence---Appeal against conviction was dismissed, in circumstances.

Shabbir Ahmad v. The State and another and Mst. Raheem Jan v. Shabbir Ahmad 1997 PCr.LJ 1539 rel.

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

----Ss. 302(b), 324, 337-F(i), 341, 147, 148, 149 & 109---Arms Act (XX of 1965), S. 15---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, wrongful restrain, rioting, rioting armed with deadly weapons, unlawful assembly, abetment, possession of illicit weapons---Appreciation of evidence---Presence of accused at the time and place of occurrence proved---Accused were charged for committing murder of two persons of complainant party and also causing injuries to a person by firing---According to record, the allegation levelled against the convict-appellant "M" along with other accused was their being present at the place occurrence armed with Kalashnikov---Eye-witnesses during their statements also affirmed the presence of the convict-appellant "M" and firing---Crime weapon was recovered by the police on his pointation---Thus, after going through the oral evidence as well as documentary evidence, it could safely be said that convict-appellant "M" was part of unlawful assembly and played an active role in the commission of the offence---Proof of specific overt act was not necessary while determining the guilt of accused being member of unlawful assembly and it would be sufficient, if the prosecution was able to establish that accused being member of unlawful assembly shared the common object of assembly, and same accused in furtherance of that common object of unlawful assembly committed offence---Appeal against conviction was dismissed, in circumstances.

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

----S. 417---Appeal against acquittal---Scope---After the acquittal, accused enjoys double presumption of innocence---Acquittal order is not to be interfered with until and unless it is found perverse and illegal.

Asia Bibi and 5 others v. Ghazanfar Ali and 3 others 2005 PCr.LJ 415 rel.

Raja Inamullah Khan for Appellant/Respondent.

Raja Mazhar Iqbal for Appellants.

Abdul Razzaq Chaudhary for Appellants/Respondents.

Zulfiqar Ahmed Raja for Appellant.

A.A.G. for the State.

2025 Y L R 1958

[High Court (AJ&K)]

Before Chaudhary Khalid Rasheed, J

Adam Rafique and 4 others---Petitioners

Versus

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

Petition No. 114 of 2025, decided on 30th April, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 22-A---Inherent power of High Court---Power of Ex-Officio Justice of Peace---Addition or deletion of charges---Scope---Petitioner alleged that Justice of Peace had no jurisdiction to direct the investigating agency for adding or substituting any particular offence, but he did---Validity---Justice of Peace could not give directions to the investigating agency for insertion of a particular offence---Though Justice of Peace had the authority to give certain other directions but had no jurisdiction to issue such type of direction as given in the instant case---Petition was allowed and impugned order was set-aside.

2016 PCr.LJ 771 and 2004 YLR 2266 rel.

Babar Ali Khan for Petitioner.

Sikandar Raftaz for Respondent No. 4.

A.A.G. for Official Respondents.

Date of hearing: 30th April, 2025.

2025 Y L R 101

[Islamabad]

Before Miangul Hassan Aurangzeb and Arbab Muhammad Tahir, JJ

Syed Abdul Basit Shah---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 183 and Murder Reference No. 14 of 2024, decided on 7th October, 2024.

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

----Ss. 302(b), 109, 201 & 34---Qatl-i-amd, abetment, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Scope---Accused was charged that he and his co-accused persons committed murder of the daughter of complainant---First Information Report as well as the statement of complainant made it abundantly clear that no specific role whatsoever had been assigned either to the present appellant or to the proclaimed offenders/husband of deceased---Complainant deposed that on 23.09.2021 at about 11:00 P.M., brother of his son in-law telephonically informed him that his daughter had a heart attack as a consequence of which she expired---Initially in his complaint, complainant did not mention the cause of the deceased's death, but subsequently through a supplementary statement, which was recorded on 15.11.2022 (i.e. after more than 12 months of the occurrence), he claimed the cause of death to be the result of putting pillow etc. on the deceased's neck and by pressing her neck---Complainant attributed maltreatment and cruelty to the in-laws of his deceased daughter---In the cross-examination, the said witness deposed that in the year 2012, the deceased got married with the proclaimed offender and since then she lived with her husband in Saudi Arabia until 2017---Deceased did not file any complaint in Saudi Arabia while in the company of her husband and he unequivocally admitted that his deceased daughter had not filed any complaint before any Court or forum regarding any alleged maltreatment by her in-laws or for recovery of maintenance, khulla or dissolution of marriage---Complainant also admitted that he had filed a petition under S.491, Cr.P.C, twice; the subject matter of the first application was resolved through intervention of the Presiding Officer and lawyers, whereas the second application was dismissed after the deceased had appeared before the Court and made a statement to the effect that she was quite comfortable with her in-laws---Complainant admitted that he did not challenge the dismissal order of his petition under S.491, Cr.P.C, before the High Court---Circumstances established that the prosecution had failed to establish its case against the appellant beyond any shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

1971 SCMR 657; 1995 SCMR 1345; PLD 2007 SC 564; 2009 SCMR 230; 2017 SCMR 524; 2018 SCMR 149; PLD 2019 SC 64 and 2022 SCMR 1555 ref.

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

----Ss. 302(b), 109, 201 & 34---Qatl-i-amd, abetment, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Presence of husband of deceased at the place and time of occurrence not proved---Accused was charged that he and his co-accused persons committed murder of the daughter of complainant---Complainant deposed that the responsibility of death of his daughter was upon her husband, her father-in-law, mother-in-law and their four sons including appellant---Complainant admitted the fact that his son in-law, was abroad during the days of alleged occurrence---Son-in-law of complainant (since Proclaimed Offender) was not present at the place of occurrence, as per prosecution's version he was abroad, and the Investigating Officer did not examine such aspect of the matter, however, the Trial Court found him to have been involved in the commission of alleged occurrence and declared him proclaimed offender---Circumstances established that the prosecution had failed to establish its case against the appellant beyond any shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 109, 201 & 34---Qatl-i-amd, abetment, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Motive not proved---Accused was charged that he and his co-accused persons committed murder of the daughter of complainant---Complainant alleged that the accused party wanted second marriage of husband of deceased, hence, wanted to get rid of the deceased and thus, they killed her---Had that been the motive and reason, the husband of the deceased would have been well within his rights to have divorced the deceased and/or had the deceased been meted out maltreatment, she would also have been within her rights to have dissolved the marriage through Khulla---Since neither the husband divorced the deceased to get rid of her, nor had the deceased complained against the maltreatment (if any) before any forum thus, an inference contrary to complainant's stance could be drawn that the relationship between the spouses was cordial and jovial---Hence, false implication of the appellant as well as the proclaimed offenders could not be ruled out---Circumstances established that the prosecution had failed to establish its case against the appellant beyond any shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 109, 201 & 34---Qatl-i-amd, abetment, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Medical evidence doubtful---Accused was charged that he and his co-accused persons committed murder of the daughter of complainant---Medico Legal Officer, who conducted postmortem examination of the deceased, deposed that upon external examination of the deceased, she observed that the nails of both hands and nails of both toes were blue in color---However, with respect to the cause of death said witness, instead of giving her own opinion/remarks, placed a heavy reliance on the Report of Forensic Science Laboratory---Said report was itself dubious inasmuch as Mohrer deposed that on 02.04.2022, he through road certificate had handed over five parcels to Police Official, who onward transmitted the same to Forensic Science Laboratory, whereas said Police Official admitted that on 04.10.2021, he delivered six parcels in Forensic Science Laboratory and was not sure as to what was contained in those parcels---Said witness further admitted that the said parcels were handed over to him by Casualty Medical Officer---Alleged parcels were delivered in Forensic Science Laboratory prior to almost six months of its handing over to said witness for their onwards transmission to the said Agency---Medico Legal Officer deposed that upon external examination of the deceased, she found 01 cm transverse skin deep mark seen in front of mid of neck which was brown in color---During her cross-examination, the said witness admitted that there was no sign or mark of ligature, binder, laceration, abrasion on the body of the deceased except one mark and further admitted that there was no sign mark of belt, rope or cord on the neck---Time and age of the injury of 01 cm skin deep was not mentioned in the report---Details of swelling towards age, size and measurement were not mentioned in the medical report---Medical report was itself doubtful and was based primarily on the findings contained in Histopathology Report of Forensic Science Laboratory, which had no value in the eye of law---Circumstances established that the prosecution had failed to establish its case against the appellant beyond any shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

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

----Ss. 302(b), 109, 201 & 34---Criminal Procedure Code (V of 1898), Ss. 174 & 176---Qatl-i-amd, abetment, causing disappearance of evidence of offence, or giving false information to screen offender, common intention---Appreciation of evidence---Cause of death, report of---Accused was charged that he and his co-accused persons committed murder of the daughter of complainant---Record showed that initially, through Rapat No.56 recorded in the daily Roznamcha on 24.09.2021, the proceedings under S.174, Cr.P.C, were initiated upon the complaint of complainant---However, the FIR in the case was registered on 02.04.2022 (i.e. almost more than six months of the alleged occurrence)---Section 174, Cr.P.C, made it obligatory upon the Police Officer to show strict compliance with the requirements of the said provision of law and after fulfillment of all the requisite formalities mentioned therein should forthwith forward his report to the District Magistrate or the Sub-Divisional Magistrate---Said proceedings were not brought to their logical conclusion and the same remained pending for almost six months i.e. till the registration of FIR---Statements of the witnesses revealed that compliance with the requirements of S.174, Cr.P.C, were not complied with in letter and spirit---Circumstances established that the prosecution had failed to establish its case against the appellant beyond any shadow of reasonable doubt---Appeal against conviction was allowed accordingly.

(f) Criminal trial---

----Benefit of doubt---Principle---If there is a single circumstance which creates doubt regarding the prosecution case, the same will be sufficient to give benefit of doubt to the accused.

Muhammad Akram v. The State 2009 SCMR 230; Tariq Pervez v. The State 1995 SCMR 1345; 2011 SCMR 646; PLD 1984 SC 433; 2012 MLD 1358; 2007 SCMR 1825; 2008 PCr.LJ 376; PLD 1994 Pesh. 114; PLD 2012 Pesh. 01; 1999 PCr.LJ 1087; 1997 SCMR 449; 2011 SCMR 820; 2006 PCr.LJ SC 1002; Ayub Masih v. The State PLD 2002 SC 1048; Khalid Mehmood and others v. The State 2011 SCMR 664; Arshad Khan v. The State 2017 SCMR 564; Muhammad Mansha v. The State 2018 SCMR 772; Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Najaf Ali Shah v. The State 2021 SCMR 736 rel.

Raja Muhammad Aleem Khan Abbasi, Muhammad Mushtaq Khaki, Zohaib Hassan Gondal and Hazrat Younas for Appellant.

Shah Khawar and Nisar Asghar for the Complainant/Respondent No. 2.

Hassan Murad and Kashif Hussain Shah, Prosecutor along with Mazhar Ali S.I., Police Station Lohi Bher, Islamabad for the State.

Dates of hearing: 25th June and 7th August, 2024.

Judgment

Arbab Muhammad Tahir, J.---The appellant, Syed Abdul Basit Shah has preferred the captioned appeal under Section 410 of the Code of Criminal Procedure, 1898 (hereinafter referred to as "Cr.P.C.") against judgment dated 26.04.2024 passed by learned Additional Sessions Judge-V (East), Islamabad in case FIR No.411/22 dated 02.04.2022 registered in respect of offenses under Sections 302, 201, 109 and 34 of Pakistan Penal Code, 1860 ("hereinafter referred to as "P.P.C.") at Police Station, Lohi Bher, Islamabad, whereby he was convicted and sentenced in the following terms:-

a) Firstly, accused Abdul Basit is convicted under Sections 302(b), 34 P.P.C. and sentenced to death by hanging who all (sic) also liable pay an amount of Rs.3,000,000/- (three Million) to the legal heirs of the deceased as compensation in terms of Section 544-A, Cr.P.C. in case of failure such compensation shall be recoverable as arrears of land Revenue.

b) Accused Abdul Basit is convicted under Section 201/34, P.P.C. and sentenced to seven years with fine of Rs.500,000/- for removing incriminating material and giving false information. He shall undergo for six months SI in case of failure to pay find.

1. All the sentences were ordered to run concurrently. Benefit of Section 382-B, Cr.P.C. was also extended in favour of the appellant. It is noteworthy to mention that PW-13 has roped the entire family of the appellant in the present case viz his father Badar Munir, his mother, Asma Zahra, his four brothers, namely Siraj Munir Shah, Zia-ul-Haq, Abdul Salam Shah and Abdul Baqi Shah. In addition to the above, the learned trial Court through the same impugned judgment, acquitted the co-accused persons i.e. Badar Munir Shah, Abdul Salam and Zia-ul-Haq, whereas Siraj Munir Shah, Mst. Asma Zahra and Abdul Baqi Shah were declared as Proclaimed Offenders. The case property to their extent was directed to be kept intact in Malkhana until the arrest of the said Proclaimed Offenders.

2. The learned trial Court has sent the captioned Murder Reference for confirmation or otherwise of the death sentence awarded to the appellant, which has been numbered as Murder Reference No.14 of 2014. Since both the captioned appeal and Murder Reference arise out of one and the same impugned judgment, hence they are being disposed of through this common judgment.

FACTUAL BACKGROUND:-

1. The facts in brief as gleaned out from the contents of FIR (Exh.PC) lodged on the basis of complaint (Exh.PH) submitted by Syed Shabbir Hussain Shah Bukhari (PW-13) are to the effect that his daughter namely, Ayesha Shabbir (deceased) was married to Abdul Baqi Shah and was residing with her in-laws in House No.701, Street No.32, Block-C, CBR Town along with her two children aged about 8 and 5 years respectively. That the deceased's husband namely, Abdul Baqi Shah was residing abroad somewhere. That behavior of the deceased's in-laws was not convivial with the deceased. That the in-laws of his daughter were treating her inhumanly. That the deceased had not been allowed to meet with her parents since last four years. That on the fateful day i.e. on 23.09.2021 at about 11:00 PM, the brother of his son in-law namely Zia ul Haq had informed him telephonically that the deceased had died of a heart attack. That since he had sure that his daughter was done to death by her in-laws hence, her postmortem be conducted. And that the corpse of the deceased be taken into police custody and handed it over to them for burial. That the entire responsibility of death of his daughter is onto the in-laws of his daughter i.e. (i) her husband, Abdul Baqi Shah, (ii) her father in-law, Badar Munir Shah, (iii) her mother in-law, Asma Zahra and (iv) her brothers in-law namely, Abdul Basit Shah, Siraj Munir Shah, Zia ul Haq Shah and Abdus Salam Shah. The motive as alleged in the FIR was that the accused party was trying to get second marriage of Abdul Baqi Shah, husband of the deceased.

2. Pursuant to the registration of said FIR (Exh.PC), the matter was investigated by Fakhar Abbas, SI/PW-3 and after fulfillment of codal formalities, incomplete challan/report under Section 173, Cr.P.C. was prepared on 21.03.2023 and forwarded on 11.04.2023 before the learned trial Court. In order to bring home the guilt of the appellant, the prosecution produced as many as thirteen (13) witnesses including Syed Shabbir Hussain Shah Bukhari (PW-13), who is the complainant of the case. Kiran Farooq, Lady Constable/3338 entered the witness box as CW. Whereas three witnesses namely, Syed Adnan, Rashida and Farhat Jabeen were given up by the prosecution being unnecessary.

3. After closure of the prosecution evidence, the learned trial Court examined the appellant under Section 342, Cr.P.C. wherein, he denied the accusation and in response to question No.17 "why this case registered against you and why the prosecution witnesses deposed against you", replied as under:-

"The complainant along with his spouse, exhibit traits of greediness, moodiness, and a propensity for interfering in the affairs of others. Their behavior has led to the coerced divorces of their two daughters-in-law from their son and their deceased daughter had severed ties with them, as evidenced by the order detailed in the petition under Section 491 of the Criminal Procedure Code, filed by the complainant. It appears that in retaliation for their daughter's disassociation from them, they have unjustly initiated baseless, false, frivolous and fictitious case against me and my entire family just to satisfy their false egoistic temptations. The prosecution witnesses in connivance with the complainant had deposed against me. The complainant had filed false application under section 491, Cr.P.C. as mentioned supra, which was dismissed by the court. This shows a state of mind on the part of complainant, who despite having clear knowledge of the cause of death i.e. heart attack converted the true story in to a criminal case against me and the others."

1. The appellant was summoned by the learned trial Court to face the trial. Copies of the relevant documents as envisaged under Section 265-C, Cr.P.C. were delivered to the appellant on 09.06.2023. The appellant was formally charge sheeted on 22.07.2023 to which he pleaded not guilty and claimed trial. However, the appellant did not opt to appear as his own witness in disproof of the accusation as envisaged under Section 340(2), Cr.P.C. To the said effect, his statement was recorded on 19.03.2024, wherein he refuted the entire allegations levelled by the prosecution against him and professed his innocence. The appellant however, placed reliance on some documentary piece of evidence (i.e. (i) petition under Section 491 by the complainant on 29.01.2019 along with order dated 02.02.019 (Exh.D/A) and (ii) copy of Australian Visa of the deceased (Mark-A). After conclusion of the trial, the learned trial Court, after having found the appellant guilty of the offences mentioned in the FIR, convicted and sentenced him in the manner as detailed herein above. Hence, the captioned appeal.

ARGUMENTS OF LEARNED COUNSEL FOR THE APPELLANT.

1. Learned counsel for the appellant, after going through the contents of the FIR, contended that the main cause of death of the deceased set forth by the prosecution was "hanging" but the learned trial Court erroneously ventured beyond the scope of the case and declared the cause of death to be "Asphyxia due to strangulation". That this is reason enough to set the impugned judgment at naught. That the judgments relied upon by the learned trial Court in the impugned judgment were completely alien to the facts and circumstances of the present case. That the entire superstructure of the prosecution case was built on the report dated 08.02.2022 (Exh.PN) submitted by the Punjab Forensic Science Agency (hereafter referred to as "PFSA"), which has no value in the eye of law for the following reasons:-

a) Dr. Nasreen (PW-7) never sent Hyoid bone and soft tissue, which was allegedly received by PFSA and report of injury and hanging is based on the soft tissue which was not dispatched at any material stage.

b) That PW-7 was silent as to the fact regarding number of parcels, seal of parcels, date and time of parcels and to whom, the same were handed over.

c) That the alleged road certificate was not available on the judicial file of the learned trial Court, but was brought on record at the time of final arguments.

d) That PW-5 admitted that five parcels were handed over to him on 04.10.2021 and the same remained in custody for almost six months.

e) PW-6 deposed that he transmitted six parcels to PFSA on 04.10.2021 and was sure about their contents.

f) That even the reports of the PFSA are silent as to the exact number of the parcels.

g) That since the chain for safe transmission and safe custody of the samples is broken, hence, the PFSA's report (Exh.PN) has lost its efficacy.

1. Furthermore, it was argued that in the present case, there is no sufficient incriminating material available on record which would connect the appellant with the commission of the alleged offences. That the record is also silent as to the presence of any direct or circumstantial evidence, which could be used for the appellant's conviction. That there were no signs of hanging in the postmortem report i.e. ligature mark, bone fracture, neck fracture, spinal cord injury, brain damage and/or any marks of injury on the body of the deceased. That in the statement of PW-13/complainant, the role attributed to the acquitted accused was that of murder whereas to the appellant, it was that of quarrelling with the deceased. That the statements of the PWs are replete with material discrepancies and improvements, which create reasonable doubt in a prudent mind, the benefit whereof must be extended in favour of the appellant. That the learned Court below while convicting the appellant did not apply its judicial mind; that the law governing the subject was also ignored by the learned Court below; that the conviction order as well as the imposition of the fine are based on utter disregard of the law laid down by the superior Courts; that the statements of the prosecution witnesses are not consistent in nature thus the appellant's conviction cannot be based on such contradictory statements. That impugned judgment does not withstand the test of a valid verdict as enumerated under Section 367, Cr.P.C., concluded the learned counsel for appellant. Learned counsel prayed for the present appeal to be allowed and for the impugned judgment dated 26.04.2024 to be set aside. He placed reliance on the judgments reported as 1971 SCMR 657, 1995 SCMR 1345, PLD 2007 SC 564, 2009 SCMR 230, 2017 SCMR 524, 2018 SCMR 149, PLD 2019 SC 64 and 2022 SCMR 1555.

ARGUMENTS ON BEHALF OF THE PROSECUTION:

1. Conversely, learned counsel for complainant as well as learned Prosecutor appearing for the State have contended that the prosecution has discharged its burden by way of producing confidence inspiring evidence. That motive behind the occurrence has been established. That there was no element of false implication of the appellant. That there is no discrepancy in the statements of the PWs. That all the PWs were subjected to lengthy cross-examination, but nothing favourable to the appellant was procured. That no defense witness was produced by the appellant in order to substantiate his version. That the appellant has failed to point out any ill-will or ulterior motive on the part of the prosecution. That the impugned judgment is based on correct appreciation of law on the subject hence, the same is not open to interference by this Court. That the impugned judgment does not suffer from any procedural irregularity and thus deserves implementation, concluded learned counsel.

2. We have heard the arguments of the learned counsel for the parties and have perused the record with their valuable assistance.

3. The case of the prosecution, so to speak, does not hinge on any evidence regarding ocular account having been furnished by any of the prosecution witnesses. When confronted with the fact as to the existence of any direct evidence, learned counsel for the complainant as well as learned Prosecutor have candidly admitted that albeit there exists no direct evidence, yet the prosecution succeeded in getting its case proved against the appellant. There is no denial to the fact that it is an unseen occurrence in which it is alleged that the deceased is allegedly said to have been killed by the appellant along with his parents and four brothers. It is also one of the admitted facts that this is a case of no evidence. Since the capital punishment is awarded to the appellant by virtue of indirect evidence, hence, this Court deems it appropriate to re-appraise the same in its true perspective.

4. The precise allegations recorded by PW-13 in the FIR (Exh.PC) are to the effect that the deceased was residing with her in-laws while her husband namely, Syed Abdul Baqi Shah (since Proclaimed Offender) was residing abroad. That due to cruel behavior and maltreatment of her in-laws, he was of the firmed view that his daughter had been killed by her in-laws. A careful perusal of the said FIR (Exh.PC) as well as the statement of PW-13 makes it abundantly clear that no specific role whatsoever has been assigned either to the present appellant or to the Proclaimed Offenders. PW-13 during his examination-in-chief deposed that "the responsibility of death of my daughter is upon her husband Abdul Baqi Shah, her father in-law Badar Munir Shah (since acquitted), her mother in-law Asma Zahra (since Proclaimed Offender), and their sons, Abdul Basit Shah (the present appellant), Siraj Munir Shah (since Proclaimed Offender), Zia ul Haq Shah (since acquitted), and Abdus Salam Shah (since acquitted)". Furthermore, he deposed that on 23.09.2021 at about 11:00 P.M., Zia ul Haq Shah brother of his son in-law telephonically informed him that his daughter had a heart attack and as a consequence of which, she expired. Initially in his complaint (Exh.PH), PW-13 did not make mention the cause of the deceased's death, but subsequently through a supplementary statement, which was recorded on 15.11.2022 (i.e. after more than 12 months of the occurrence), he claimed the cause of death to be by reason of putting pillow etc. on the deceased's neck and by pressing her neck.

5. Since the machinery of criminal law was set into motion by the complainant/PW-13, this Court deems it appropriate, to minutely peruse his testimony in order to reach to a logical conclusion. As has been discussed above, PW-13 attributed maltreatment and cruelty to the in-laws of his deceased daughter. In the cross-examination, the said PW deposed that in the year 2012, the deceased got married with Syed Abdul Baqi Shah (since Proclaimed Offender) and since then she lived with her husband in the Kingdom of Saudi Arabia until 2017. He further admitted that the deceased did not file any complaint in Saudi Arabia while in the company of her husband. He further unequivocally admitted during his cross-examination that his deceased daughter had not filed any complaint before any court or forum regarding any alleged maltreatment by her in-laws or for recovery of maintenance, khulla or dissolution of marriage. It may not be out of context to mention here that PW-13 alleged that the accused party wanted second marriage of Syed Abdul Baqi Shah, hence, wanted to get rid of the deceased and thus, they killed her. Had this been the motive and reason, the husband of the deceased would have been well within his rights to have divorced the deceased and/or had the deceased been meted out maltreatment, she would also have been within her rights to have dissolved the marriage through Khulla. Since neither the husband divorced the deceased to get of rid of her, nor had the deceased complained against the maltreatment (if any) before any forum thus, an inference contrary to PW-13's stance could be drawn that the relationship between the spouses was cordial and jovial. Hence, false implication of the appellant as well as the Proclaimed Offenders cannot be ruled out. PW-13 also admitted during cross-examination that he had filed a petition under Section 491, Cr.P.C. twice, the subject matter of the first application was resolved through intervention of the Presiding Officer and lawyers, whereas the second application was dismissed after the deceased had appeared before the Court and made a statement to the effect that she was quite comfortable with her in-laws. He admitted that he did not challenge the dismissal order of his petition under Section 491, Cr.P.C. before the High Court.

6. Moreover, as regards his stance taken in his supplementary statement regarding putting pillow on the deceased's face and pressing her neck, he admitted that the I.O. did not take into possession any pillow or mattress etc. from the place of alleged occurrence. It was obligatory upon him to have furnished the name of the informer who had informed him about putting of the pillow on the deceased's face, which he did not do. He negated the suggestion put forth to him with respect to his stance regarding cause of death. He categorically admitted that the said stance taken by him is even otherwise not supported by any medical evidence. He also admitted the fact that his son in-law, Syed Abdul Baqi Shah, was abroad during the days of alleged occurrence. At this juncture, this Court observes with grave concern that the said Syed Abdul Baqi Shah (since Proclaimed Offender) was not present at the place of occurrence, as per prosecution's version he was abroad, and the Investigating Officer did not examine this aspect of the matter, however, the learned trial Court found him to have been involved in the commission of alleged occurrence and declared him Proclaimed Offender. PW-13 did not deny the fact that during the days of alleged occurrence, Covid-19 pandemic was prevalent and was on its peak.

MEDICAL EVIDENCE.

1. Undoubtedly, medical evidence leads much support to the prosecution case and the testimony of the Medico Legal Officer is of paramount importance in cases like the one in hand unless the same is suffered from any material contradictions. In the present case, Dr. Nasreen, Medico Legal Officer, who conducted postmortem examination of the deceased, appeared as PW-7 and deposed that upon external examination of the deceased, she observed that the nails of both hands were blue and nails of both toes were blue in color. However, with respect to the cause of death, the said PW instead of giving her own opinion/ remarks, placed a heavy reliance on the report of PFSA (Exh.PN) by deposing that:-

"As per report of PFSA Lahore dated 08.11.2021 toxicology report there was no drug, no poison was found in the blood, liver, spleen, kidney and stomach and its contents.

As per report of Hispathological prepared by PFSA Lahore dated 11.2.2022, heart sections reveals all branches of coronaries are patent. The sections from myocardium are unremarkable. The lung sections reveal vascular congestion and focally presence of hemorrhages and edematous fluid inside alveoli. Histological examination of the hyoid bone and sound box sections reveals intact hyoid bone and sound box. The soft tissue adjacent to hyoid bone contains blood hemorrhages, suggesting ante-mortem injury at the level of neck likely, hanging in nature."

1. The PFSA's said report dated 11.02.2022 is itself dubious inasmuch as PW-5 in his examination-in-chief deposed that on 02.04.2022, he through road Certificate No.527/21 had handed over five parcels to PW-6, who onward transmitted the same to PFSA, whereas PW-6 admitted that on 04.10.2021, he delivered six parcels in FPSA and was not sure as to what was contained in those parcels. He further admitted that the said parcels were handed over to him by CMO. It is quite strange to observe that the alleged parcels were delivered in FPSA prior to almost six months of its handing over to PW-6 for their onwards transmission to the said Agency.

2. PW-7 in her examination-in-chief deposed that upon external examination of the deceased, she found 1cm transverse skin deep mark seen in front of mid of neck which was brown in color. During her cross-examination, the said PW admitted that "there was no sign or mark of ligature, binder, laceration, abrasion on the body of the deceased except one mark measuring 1cm in front of mind of neck of the deceased". She further admitted that "there was no sign mark of belt, rope or cord on the neck. For sake of clarity, the relevant excerpts from her depositions are reproduced as under:-

"…There was no sign mark of belt on the neck. It is correct that there was no sign of rope or cord on the neck of the deceased volunteered that 01 CM skin deep injury mentioned by me in the Postmortem may be of cord or anything else of which I am not sure. It is correct that this possibility has not been mentioned by me in my postmortem report. It is also correct that no finding has been given by the PFSA regarding the object causing injury of 01 CM skin deep. It is correct that there was no fracture of any kind of any organ of the deceased including the hyoid bone and cervical bone. It is correct that in cases of death by hanging fracture of hyoid bone is necessary. It is correct that the injury of skin deep means relating to surface or appearance on the body".

1. It was further admitted by her during cross-examination that "it is correct that I have not mentioned time and age of the injury of 01 CM skin deep in my report. I have not mentioned the details of swelling towards age, size and measurement." A similar admission was made by PW-4, Waris Ali ASI in terms that "it is correct that according to column No.14 of my inquest report, I have declared cardiac arrest as cause of death. It is correct that I have no mentioned or identified the size, nature, color and age of the alleged spot on the neck of the deceased."

2. PW-7 further admitted the fact that in the hospital facility of postmortem Computed Tomography (CT) is available, but in the instant case, the postmortem CT was not conducted. She further admitted that in her report as well as in PFSA's report, it had not been categorized that there was likelihood of complete hanging or incomplete hanging and that in her report; she did not mention the reasons for blackish lungs of the deceased. That it is correct that bluish nails of a dead body is a sign of low oxygen or blockage of oxygen in the human body. She further deposed in her cross-examination that the condition of enlargement of heart shows disorder or disease, that on the day when she conducted the autopsy, the Covid-19 pandemic was at its peak and that she did not conduct or advise Covid test of the deceased.

3. As mentioned above, the report of PW-7 is itself doubtful and is based primarily on the findings contained in Histopathology report (Exh.PN) of PFSA, which has no value in the eye of law for the following reasons.

i. Soft tissues and Hyoid bone, on which the report of injury and hanging is based, allegedly received by PFSA, were never sent by PW-7 for their analysis.

ii. For safe transmission of the said articles, mentioning the number of parcels, seal of parcels, to whom the same were delivered and date and time, are mandatory, which has not been done so by PW-7. No explanation for this omission has been given by PW-7.

iii. Naveed, Head Constable appeared as PW-5 and deposed that he had been handed over five sealed parcels of this case on 04.10.2021 which he kept in the Malkhana until 02.04.2022 (i.e. for almost six months). Thereafter, on the said date, he handed those parcels to Bilal Ahmed SI, who onward transmitted the parcels in the concerned laboratories PFSA, Lahore.

1. Likewise, Fakhar Abbas, SI, who conducted the investigation appeared as PW-03 and during the cross-examination, he admitted that during the course of his investigation, no evidence regarding murder of the deceased came on record except the medical report and the laboratory reports. Suffice it to say that the said reports are not worth considering for the reasons mentioned above. He further admitted that there was no tool having been used for hanging. He showed his ignorance as to the death certificate duly issued by Al-Khidmat Raazi Hospital CBR Town, in which the cause of death was shown as "Cardiac Pulmonary Arrest." He, however, admitted that the said death certificate is available on the police record. He further admitted that in Rapat No.32 dated 24.09.2021 (Exh.P2), it had categorically been mentioned that no sign of violence was found on the body of the deceased person.

2. It goes without saying that in initially, through Rapat No.56 recorded in the daily Roznamcha on 24.09.2021, the proceedings under Section 174, Cr.P.C. were initiated upon the complaint of PW-13. However, the FIR in this case was registered on 02.04.2022 (i.e. almost more than six months of the alleged occurrence). Section 174, Cr.P.C. makes it obligatory upon the police officer to show strict compliance with the requirements of the said provision of law and after fulfillment of all the requisite formalities mentioned therein shall forthwith forward his report to the District Magistrate or the Sub-Divisional Magistrate. The said proceedings were not brought to their logical conclusion and the same remained pending for almost six months i.e. till the registration of FIR. A glance at the statements of the PWs reveals that compliance with the requirements of Section 174, Cr.P.C. were not complied with in letter and spirit. One example of such deviation from the mandate of said Section may well be assessed from the statement of PW-6, Bilal Ahmed, SI, who in his cross-examination has unambiguously admitted that "it is correct that the proceedings under Section 174, Cr.P.C. were initiated in this case upon the complaint of the complainant. I did not inform the magistrate or get any permission from him to initiate the proceedings under section 174, Cr.P.C." He also admitted that "I have not gone through the contents of section 174 of Cr.P.C. I am not sure if I complied with the requirements and the procedure laid down in the rules regarding proceedings under section 174 of Cr.P.C. I did not associate two independent witnesses of my proceedings at the place of alleged occurrence to comply with the mandatory requirement contained in section 174 of Cr.P.C."

3. Since the prosecution evidence is doubtful in nature, therefore, there is no need to further discuss the same which is exculpatory in nature. It is a matter of great concern for this Court to observe that the statements of all the PWs are replete with major discrepancies, contradictions and inconsistencies as discussed hereinabove, creating sufficient doubt in the prosecution's case but despite the same, the learned Court below proceeded to convict the appellant on the basis of the dubious and doubtful version of the prosecution. Though the learned Court below has endeavored to write a lengthy judgment consisting of 36 pages, but needless to observe the same does not withstand the test of a standardized legal verdict since the same is based on misreading and non-reading of the evidence on the record.

4. As mentioned above, in the present case, the prosecution failed to discharge its burden of proving the case against the appellant beyond any shadow of the doubt. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of the doubt to the accused, whereas, the instant case is replete with numerous instances creating serious doubt about the prosecution story. Reliance in this regard may be placed on the law laid down in the case titled as "Muhammad Akram v. The State" (2009 SCMR 230), wherein it was held as follows:-

"The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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."

1. Reliance in this regard may be placed on the law laid down in the case titled as "Muhammad Akram v. The State" (2009 SCMR 230), wherein it was held as follows:-

"The nutshell of the whole discussion is that the prosecution case is not free from doubt. 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"

1. Law to this effect was also laid down in the case of Tariq Pervez v. The State (1995 SCMR 1345) wherein it was held has follows:-

"The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right"

1. It has been held time and again by the superior Courts that a slightest doubt occurs in the prosecution case is sufficient to grant acquittal to an accused person. For giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubts. Single circumstance creating reasonable doubt in the prudent mind about the guilt of the accused makes him/her entitled to its benefit, not a matter of grace in concession, but as a matter of right. Law to this effect has also be laid down in the judgments reported as 2009 SCMR 230, 2011 SCMR 664, 2011 SCMR 646, PLD 1984 SC 433, 2012 MLD 1358, 2007 SCMR 1825, 2008 PCr.LJ 376, PLD 1994 Peshawar 114, PLD 2012 Peshawar 01, 1999 PCr.LJ 1087, 1997 SCMR 449, 2011 SCMR 820 and 2006 PCr.LJ SC 1002.

2025 Y L R 1274

[Islamabad]

Before Muhammad Asif, J

Khalid---Petitioner

Versus

The State and others---Respondents

Crl. Misc. No. 822-BC of 2023, decided on 17th February, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 324, 109 & 34---Attempt to commit qatl-i-amd, abetment, common intention---Petition for cancellation of bail, dismissal of---Allegation against the accused-respondents were that they came to the house of complainant/ petitioner and beat his daughter and forcibly abducted her which resulted in a fire shot on her right leg by accused---Once concession of bail was granted by a Court of competent jurisdiction then very strong and exceptional grounds would be required to hamper with the concession extended to an accused who was otherwise clothed with free life, as a consequence of concession of bail---If any other view was taken by the Court, it would be synonymous to curtailing the liberty of said accused prior to completion of trial, which otherwise was a precious right guaranteed under the Constitution of the country---In the present case, petitioner had not pressed any ground i.e. (i) accused had misused the concession of bail in any manner, (ii) accused had tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses, (iii) there was likelihood of absconsion of the accused beyond the jurisdiction of Court, (iv) accused hadattempted to interfere with the smooth course of investigation, (v) accused misused his liberty while indulging into similar offence, and that, (vi) some fresh facts and material had been collected during the course of investigation which tended to establish guilt of the accused---Impugned order appeared to be in accordance with law and facts of the case, therefore, did not call for any interference---Consequently, present bail cancellation petition was dismissed.

Sami Ullah and another v. Laiq Zada and others 2022 SCMR 1115 and Shahid Arshad v.Muhammad Naqi Butt and 2 others 1976 SCMR 360 rel.

Syed Muhammad Ali Rizvi for Petitioner.

Ms. Farzana Faisal Khan for Respondents.

Kashif Hussain Shah, Special Public Prosecutor and Muhammad Saleem, ASI/IO, P.S. Sangjani, Islamabad for the State.

Order

Muhammad Asif, J.---Through the listed criminal miscellaneous, in terms of Section 497(5) of Cr.P.C the petitioner (complainant) namely Khalid impugns order dated 19.05.2023, passed by the learned Additional Sessions Judge, Islamabad (West) whereby respondents Nos. 2 to 6 namely Tauseef Khan, Shahzad Khan, Shuakat Khan, Kanwal Bibi and Saqlain Khan were allowed pre-arrest bail in FIR No. 248, dated 02.04.2023, under Sections 324, 109, 34 P.P.C, Police Station Sangjani, Islamabad. Operative paragraphs 5 and 8 of the impugned order, being relevant are reproduced:-

"5, Perusal of the record reveals that though the accused/petitioners are nominated in the FIR which are non bailable offences, however, previous enmity between the parties in the shape of family/civil as well as criminal cases exists and are pending before the competent courts. The record also reflects that the complainant party had lodged an FIR against the accused/petitioners party and one of the accused being complainant party had not been granted bail till the Hon'ble Supreme Court vide its order 31.02.2023 hence false implication of the accused/petitioners cannot be ruled out under the circumstances.

8. Necessary investigation from the accused/petitioners is almost complete. Intended arrest of accused/petitioners in circumstances would not service any purpose or advance the case of the prosecution, except the humillation and harassment of the petitioners at the hands of the police.

1. The subject FIR stood registered on the complaint of the petitioner/complainant, wherein it was alleged that on 02.04.2023 at about 12:00 am accused persons namely Shahzad, Tauseef and Kanwal came to the house of the petitioner and beat the petitioner's daughter namely Afshan (victim) and forcibly abducted her which resulted a fire shot on her right leg by accused Tauseef.

2. Learned counsel for the petitioner argued that the injured specifically nominated the accused persons/ respondents, but the learned trial court has not appreciated this aspect of the matter and confirmed their pre-arrest bail. The medical evidence also supports the case of the petitioner but the learned trial court passed the order in hasty manner. The learned trial wrongly interpreted that in support of their plea of albi, accused persons produced some certified copies, however, no such copies were ever made part of the investigation nor were investigated by the Investigation Officer. The offences fall within the ambit of prohibitory clause and are non bailable, therefore, bail granting order dated 19.05.2023 may kindly be recalled in the interest of justice.

3. On the other hand, learned counsel for respondents assisted by the State Counsel opposed the above submissions by contending that pre-requisite to the extent of extra ordinary relief to respondents and there is no illegality or irregularity in the order Impugned passed by the learned trial Court. The case was registered solely on the basis of complaint filed by the petitioner; and there exists no ground for the cancellation of bail, therefore, petition is liable to be dismissed.

4. Heard, record perused.

5. Perusal of the record reveals that the instant petition has been filed on the ground that the impugned order is not tenable and against the facts of the case, where evidence available on record was not appreciated by the learned trial Court, however. there is no material available on record, which prima facie proves the case of the petitioner. As per CDR, most of the accused persons/respondents were not present in Islamabad at the time of incident except the accused Mst. Kanwal Bibi and Tauseef. Record further shows that previous litigation between the parties also exists.

6. Investigation of the case has been completed and challan/report under Section 173 Cr.P.C. has also been submitted before the Court, therefore, in absence of incriminating material, implication of respondents merely on the basis of nomination in the FIR would not suffice to hold the respondents to disentitle them to extra ordinary relief and the grant of bail is a rule and refusal is an exception in the same manner as it is granted or refused in offences that do not fall within the prohibitory clause of Section 497(1) Cr.P.C.

7. The Supreme Court of Pakistan in the case of "Sami Ullah and another v. Laiq Zada and others" (2022 SCMR 1115) reiterated the principles for cancellation of bail which are (i) If the bail granting order is patently illegal, erroneous, factually incorrect and has resulted into miscarriage of justice, (ii) accused has misused the concession of bail in any manner, (iii) accused has tried to hamper prosecution evidence by persuading/pressurizing prosecution witnesses, (iv) there is likelihood of absconsion of the accused beyond the jurisdiction of Court, (v) accused has attempted to interfere with the smooth course of investigation, (vi) accused misused his liberty while indulging into similar offence and that, (vit) some fresh facts and material have been collected during the course of investigation which tends to establish guilt of the accused.

2025 Y L R 1368

[Islamabad]

Before Sardar Muhammad Sarfraz Dogar, ACJ

Muhammad Awais Qarni---Petitioner

Versus

The State and others---Respondents

Crl. Misc. No. 455 of 2025, decided on 25th March, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Bail, grant of---Further inquiry---Allegation against the petitioner was that he dishonestly issued one cheque amounting to Rs. 32,00,000/- and second cheque amounting to Rs. 500,000/- in favour of the complainant---Second cheque amounting to Rs. 500,000/- when presented in the bank for encashment was dishonoured---Record evinced that the petitioner was running a business and bank statements of the petitioner from 01.01.2021 to 09.04.2024 indicated certain business transactions with the complainant and others---In such circumstances, whether the cheques in question were issued towards fulfillment of an obligation within the meaning of S.489-F P.P.C was a question which would be resolved by the Trial Court after recording of evidence---Maximum punishment of offence provided under S.489-F P.P.C, was not more than imprisonment for three years or fine or both, as such, the same was not covered by the prohibition contained in subsection (1) of S.497 Cr.P.C---In non-bailable offences falling in the second category i.e. punishment with imprisonment for less than ten years, the grant of bail was a rule and refusal an exception---No exceptional circumstances could be pointed out by the prosecutor as well as the counsel for the complainant---For recovery of amount, civil proceedings provided remedies under O.XXXVII C.P.C. and in that regard, civil suit was pending adjudication between the parties before the civil Court---Moreover, involvement of a huge amount did not enlarge the punitive scope of S.489-F P.P.C and it was no ground for refusal of bail---Allegedly, other cases of similar nature had been registered against the petitioner, but mere registration of other criminal cases against an accused did not disentitle him for the grant of bail if on merits he had a prima facie case---Petitioner was behind the bars since 22.01.2025 and his physical custody was no more required by the Investigating Agency for the purpose of further investigation---As such, no useful purpose would be served by keeping the petitioner behind the bars for an indefinite period---Bail petition was allowed, in circumstances.

Muhammad Anwar v. The State and others 2024 SCMR 1567; Abdul Rasheed v. The State and others SCMR 1948; Tariq Bashir and 5 others v. The State PLD 1995 SC 34; Muhammad Sarfraz v. the State and others 2014 SCMR 1032; Muhammad Tanveer v. The State PLD 2017 SC 733; Abdul Saboor v. The State through A.G Khyber Pakhtunkhwa and another 2022 SCMR 592; Moundar and others v. the State PLD 1990 SC 934; Muhammad Rafique v. The State 1997 SCMR 412; Syeda Sumera Andaleeb v. The State and others 2021 SCMR 1227; Nazir Ahmad alias Bhaga v. The State 2022 SCMR 1467 and Ali Anwar Paracha v. The State and another 2024 SCMR 1596 rel.

Ch. Arslan Nawaz Marth for Petitioner.

Syed Wajid Ali Shah Gillani and Zahid Mahmood Raja with the Complainant and Adnan Ali, DDPP for the State with Shakeel ASI.

Order

C.M. No. 207 of 2025.

Sardar Muhammad Sarfraz Dogar, ACJ.---This is an application seeking permission to place on record additional documents. For the reasons recorded therein, the instant C.M. is allowed subject to all just and legal exceptions.

Main case.

1. Through this petition, the petitioner seeks post-arrest bail in case FIR No.25/2025 dated 08.01.2025, offence under Section 489-F P.P.C. registered at Police Station Ramna, Islamabad.

2. As per crime report, the precise allegation against the petitioner is that he dishonestly issued one cheque amounting to Rs.32,00,000/- and second cheque amounting Rs.500,000/- in favour of the complainant. Second cheque amounting to Rs.500,000/-, which was presented in the bank for encashment but the same was dishonoured.

3. Heard. Record perused.

4. It is the case of the prosecution that the complainant being close friend of the petitioner gave him an amount of Rs.37,00,000/- as Qarz-e-Hasna, however, the petitioner in lieu of payment of loan issued two cheques, one of the cheque amounting to Rs.500,000/- was dishonoured when presented for encashment from the concerned Bank. Record evinces that the petitioner was running a business in the name and style of "Qarni and Haider Traders" and bank statements of the petitioner from 01.01.2021 to 09.04.2024 indicates certain business transactions with the complainant and others. In such circumstances, whether the cheques in question were issued towards fulfillments of an obligation within the meaning of Section 489-F P.P.C. is a question which would be resolved by the learned trial Court after recording of evidence. Reliance is place on "Muhammad Anwar v. The State, etc" (2024 SCMR 1567) and "Abdul Rasheed v. the State, etc" (2023 SCMR 1948). The maximum punishment of offence provided under Section 489-F P.P.C. is not more than imprisonment for three years or fine or both, as such, the same is not covered by the prohibition contained in subsection (1) of Section 497 Cr.P.C. In view of the dictum laid down in "Tariq Bashir and 5 others v. The State" (PLD 1995 SC 34), in non-bailable offences falling in the second category i.e. punishable with imprisonment for less than ten years, the grant of bail is a rule and refusal an exception. No exceptional circumstances could be pointed out by the learned prosecutor as well as the learned counsel for the complainant, as enumerated in the case of Tariq Bashir supra. Similar view was adopted by the Hon'ble Supreme Court of Pakistan in another case titled "Muhammad Sarfraz v. The State and others" (2014 SCMR 1032). Further wisdom can be extracted from the cases titled "Muhammad Tanveer v. The State" (PLD 2017 SC 733) and "Abdul Saboor v. The State through A.G. Khyber Pakhtunkhwa and another" (2022 SCMR 592).

5. In Abdul Saboor case supra, the honourable Supreme Court of Pakistan has held that for recovery of amount, civil proceedings provide remedies under Order XXXVII of Code of Civil Procedure, 1908 ("C.P.C.") and in this regard civil suit is pending adjudication between the parties before the Civil court. Moreover, involvement of a huge amount does not enlarge the punitive scope of Section 489-F P.P.C. and is no ground for refusal of bail. Reliance in this regard can be placed on "Jehanzeb Khan v. The State through A.G. Khyber Pakhtunkhwa and others" (2020 SCMR 1268) wherein it was observed by the revered Supreme Court of Pakistan as infra: -

2025 Y L R 1457

[Islamabad]

Before Sardar Muhammad Sarfraz Dogar, ACJ and Muhammad Asif, J

Jahangir Khan---Appellant

Versus

The STATE and others---Respondents

Jail Appeal No. 29 of 2022, decided on 3rd March, 2025.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Prosecution case was that 13-kilograms and 200-grams opium and 4800-grams charas were recovered from the secret cavities of the vehicle driven by accused---Record showed that the prosecution witnesses remained fully consistent regarding time, place and mode and manners of recovery---Besides, the witnesses remained consistent on all the material facts relating to description of vehicle from which recovery was effected, manner of recovery of contraband, weight of contraband recovered, description of contraband recovered, taking the samples from contrabands recovered, preparation of recovery memos, drafting of Murasla/complaint, preparation of site plan, recording of statement of prosecution witnesses at spot of recovery, return to the police station and time of handing over of case property to Moharrar Maalkhana, etc.---Said witnesses were subjected to lengthy cross-examination but they remained consistent and could not be shattered on any material fact---Circumstances established that the prosecution had successfully established the guilt against the appellant beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed accordingly.

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

----S. 9(c)---Control of Narcotic Substances (Government Analysts ) Rules, 2001, Rr. 4, 5 & 6---Possession of narcotic substances---Appreciation of evidence---Transmission/dispatch of samples for test or analysis---Safe custody and transmission of samples not established---Effect---Prosecution case was that 13-kilograms and 200-grams opium and 4800-grams charas were recovered from the secret cavities of the vehicle driven by accused---Requirement of R.4 of Control of Narcotic Substances (Government Analysts) Rules, 2001, was 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---Nothing was available on record which could negate reports and defence had miserably failed to rebut the prosecution case in that regard---Similarly, R.5 of Control of Narcotic Substances (Government Analysts) Rules, 2001 provided a condition that it should be received in the sealed condition in the Laboratory---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 examined and record weight in the test memorandum---Analyst would compare the markings on the test memorandums with the markings on the packages envelopes and would ensure that he tested the relevant sample---Rule 6 of the Control of Narcotic Substances (Government Analysts) Rules, 2001, further provided that on 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-11---Perusal of the Chemical Examiner's report revealed that said reports were according to its Rule and the full protocol was observed by the office of Chemical Examiner---Circumstances established that the prosecution had successfully established the guilt against the appellant beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed accordingly.

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)---

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Non-association of private witnesses at the time of recovery and arrest---Effect---Prosecution case was that 13-kilograms and 200-grams opium and 4800-grams charas were recovered from the secret cavities of the vehicle driven by accused---Applicability of S.103, Cr.P.C, in the narcotics cases had been excluded and the non-inclusion of any private witness was not a serious defect to vitiate the conviction---Normally people avoid to give evidence against drug peddlers due to fear of their lives---So-far as the evidence of the Police Officials was concerned, they were competent like other witnesses and their evidence could not be brushed aside merely on the pretext that they were Police Officials---Police witnesses had furnished straightforward and confidence-inspiring evidence and nothing had come on record to show that they had deposed against the appellant maliciously or out of any animus and it could not be believed that the Police Officials would plant or foist such a huge contraband against present appellant at their own resources---Moreover, the statement of official witness could not be discarded merely for the reason that they were Police Officials---Circumstances established that the prosecution had successfully established the guilt against the appellant beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed accordingly.

Zaffar v. The State 2008 SCMR 1254; State/ANF v. Muhammad Arshad 2017 SCMR 283 and Salah-ud-Din v. The State 2010 SCMR 1962 rel.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Conscious knowledge of presence of narcotics---Scope---Prosecution case was that 13-kilograms and 200-grams opium and 4800-grams charas were recovered from the secret cavities of the vehicle driven by accused---Items recovered from the vehicle in possession of the driver were presumed to be in his control and in his knowledge---If the drugs were secured from the possession of an accused then it was normally believed that they had a direct relationship with the drugs and the burden of proof that they did not know the same laid heavily on them---In the prevailing circumstances, the prosecution had successfully discharged its duty thereby shifting the burden upon the appellant within the meaning of Section 29 of the Act---Such burden would require the accused to firstly cause a dent in the prosecution case and secondly to establish at least justify the possibility of false implication or foistation of such huge quantity of narcotics but the defense had failed to do so---No denial to the fact that the appellant was carrying huge quantity of Opium and Charas---No convincing material had been produced by accused denying the fact that how it was possible that he was not having any knowledge about the contraband available in the secret cavity of car carried by him---Circumstances established that the prosecution had successfully established the guilt against the appellant beyond the shadow of any reasonable doubt---Appeal against conviction was dismissed accordingly.

Muhammad Noor v. The State 2010 SCMR 927 and Faisal Shahzad v. The State 2022 SCMR 905 rel.

Malik Muhammad Ajmal Khan for Appellant.

Rana Zulfiqar Ali, Special Prosecutor for ANF.

Date of hearing: 3rd March, 2025.

Judgment

Sardar Muhammad Sarfraz Dogar, ACJ---The instant Criminal Appeal is directed against the judgment dated 09.11.2021, passed by learned Judge Special Court (Control of Narcotics Substances), Islamabad in FIR No.78/2019 dated 13.04.2019 offence under sections 9(c)/15 of Control of Narcotic Substances Act 1997, registered with Police Station ANF-RD North Rawalpindi whereby the appellant was convicted for an offence punishable under section 9(c) of Control of Narcotic Substances Act, 1997 and sentenced to suffer imprisonment for life with fine of Rs.35,000/- and in default whereof, to suffer Simple Imprisonment for six months with the benefit of Section 382-B Cr.P.C. Through the same judgment, the learned trial Court acquitted the co-accused of the appellant Zeeshan Sami son of Zameer Muhammad from all the charges.

1. The case of the prosecution, in brief, is that on 12.04.2019, complainant/Inspector Raja Shoaib Ahmad (PW.4), on duty at Police Station ANF-RD Rawalpindi received spy information that one Jahangir Khan (appellant) allegedly a worker of drug peddlers, carried huge quantity of narcotic/contraband in the secret cavity of his Honda motorcar bearing Registration No.AY-700 Islamabad having Silver colour and the same vehicle will pass through Motorway Toll Plaza M-1 at about 20:30 hours. Upon which the complainant and PWs reached at the pointed place and at about 20:30 hours apprehended the appellant being driver of the said Car. On search of secret cavity of car, total 15-packets of contraband, detailed as, 11 packets of Opium, each packet of opium came out to be 1200 grams, i.e. total 13 kilograms and 200 grams of Opium and 04 packets of charas, each packet of charas came out to be 1200 grams i.e. total 04-kilograms and 800 grams of charas, were recovered and the same were entirely sealed. After completing all legal formalities, the accused along with recovered contraband and vehicle were taken to police station, where the instant case was registered against the appellant and his co-accused.

2. On completion of usual investigation, Investigating Officer submitted report under section 173 Cr.P.C before the competent Court of law and charge against appellant was framed on 28.08.2019 to which he pleaded not guilty and claimed trial. The prosecution then directed to adduce evidence.

3. To prove the charge against the appellant, the prosecution examined as many as five witnesses. One Murtaza Khan-HC was given up being unnecessary by the prosecution. The prosecution tendered evidence as Exh.PJ to Exh.PL as well as from Exh.P3 to Exh.P.17 and closed the same. Appellant in his statement recorded in terms of Section 342 Cr.P.C denied the allegations levelled against him and pleaded his innocence. He, however, neither examined on oath in disproof of the charge nor led any evidence in his defence.

4. The learned trial Court after an evaluation of the evidence/material and hearing the counsels for the parties convicted and sentenced the present appellant vide judgment dated 09.11.2021 which he has assailed before this Court.

5. Per learned counsel, the appellant being innocent has been falsely arraigned in this case; that the alleged contraband (Opium and Charas) has been foisted upon appellant on his failure to grease the palm of police; that the Chemical Examination reports (Exh.PJ to Exh.PL) are not with protocol of the test, hence the same have lost sanctity in the eye of law; that there are material contradictions in the evidence of the prosecution witnesses; that safe custody/transmission of contraband from the place of recovery to the Chemical Examiner has also not been established; that the complainant and his witnesses are police officials and no independent person has been cited as witness of 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 acquittal.

6. In rebuttal to the above, learned Special Prosecutor for ANF while supporting the impugned judgment has contended that the prosecution has successfully proved its case against the appellant who was found transporting huge quantity of Opium and Charas in a motorcar; that the police officials had no animosity to foist such a huge quantity of narcotics substance upon him, as such, he prayed for dismissal of the instant jail appeal.

7. Heard learned counsel for the parties and perused the entire material made available on record.

8. The careful assessment of the material brought on record reflects that on 12.04.2019, complainant/(PW.04) apprehended the appellant and recovered total 15 packets of contrabands detailed above from secret cavity of car. The prosecution in order to prove the safe transmission of recovered contraband to the office of the Chemical Examiner produced Abdul Razzaq (PW.2) and Mazhar Ali (PW.3). According to the deposition of (PW.2), on 13.04.2019 Investigating Officer (PW.4) handed over 11 sealed sample parcels of Opium and 04 sealed sample parcels of Charas along with 02 sealed parcels of remaining case property of Opium and Charas sealed with S.A and he (PW.02) on 15.04.2019 handed over the said sealed sample parcels of recovered contraband to Mazhar Ali Constable (PW.3) for onward transmission to the Office of NIH Islamabad. Besides, on 13.04.2019, (PW-02) kept all sealed sample parcels of case property as well as articles of personal search in Malkhana in safe custody. He also made entry in Register No.19 regarding the recovered said parcels on 13.04.2019. Statement of PW.2 was duly recorded under Section 161 Cr.P.C on the same date, i.e. 13.04.2019. The evidence of Mazhar Ali Constable (PW.03) is also very relevant in all aspects of the case who deposed that on 15.04.2019, Moharrar Maalkhana Abdul Razzaq (PW.2) handed him over recovered contrabands, i.e. 04 sealed sample parcels of charas weighing 10/10 grams each with sealed stamp of (SA) and 11 sealed sample parcels of Opium weighing 10/10 grams of Opium each with sealed stamp (SA) along with road certificate whereby (PW.03) deposited/transmitted the same in the office of NIH Islamabad. The arguments of the learned counsel for the appellant regarding non-establishing of safe transmission of recovered contraband to the office of Chemical Examiner, is naïve, since, the evidence of PW-2 and PW-3, is prima facie, truthful, perfect and does not give any way or gap which led to break the chain of safe custody. Both PWs (PW.2) and (PW.3) furnished the details about the date and time of receiving the case property at the police Station, the number and nature of parcels, its safe custody at Police Station, the date and time of its transmission to NIH Islamabad in safe custody of PW.3 and return of PW.3 to the Police Station along with necessary receipts. It has rightly been observed by the learned trial Court that no discrepancy could be brought on record in the statement of PWs (PW.2 and PW.3) and their evidence remained consistent and unshaken. Besides, (PW.03) 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. Reports i.e. Exh.PJ to Exh.PL have been examined thoroughly and it specifically noted that requisite protocols have been followed and the same are in line with the guidelines of United Nations Office on Drugs and Crime. To meet up the same proposition, we relied upon the case titled as "Faisal Shahzad v. The State" (2022 SCMR 905), and case titled "Ajab Khan v. The State" (2022 SCMR 317), in which question of safe transmission of contraband decided in details.

9. Prosecution examined I.O of the case, (PW.4) who supported the prosecution version, recorded the statements of PWs under section 161 Cr.P.C. produced evidence from Exh.P1 to Exh.PH and from Exh.P3 to Exh.P17. Evidence of Sparish Khan (PW.5)/recovery witness also gains importance to the prosecution version who while appearing as (PW.5) deposed all the material facts from getting the information until return to Police Station and handing over the case property to the Moharrar Maalkhana (PW.2).

10. After assessing all the evidence and the available record, we are of the considered view that, the prosecution witnesses remained fully consistent regarding time, place, and mode and manners of recovery. Besides, the PWs remained consistent on all the material facts relating to description of vehicle from which recovery was effected, manner of recovery of contraband, weight of contraband recovered, description of contraband recovered, taking the samples from contrabands recovered, preparation of recovery memos, drafting of Murasla/complaint, preparation of site plan, recording of statement of prosecution witnesses at spot of recovery, return to the police station and time of handing over of case property to Moharrar Maalkhana, etc. They were subjected to lengthy cross-examination but they remained consistent and could not be shattered on any material fact.

11. The requirement of Rule 4 of Control of Narcotic Substances (Government Analysts) 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. There is nothing available on record which could negate reports Exh.PJ to Exh.PL and learned defence has miserably failed to rebut the prosecution case in this regard. Similarly, Rule 5 of Control of Narcotic Substances (Government Analysts) 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 the 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. We have perused the Chemical Examiner's report available as Exh.PJ to Exh.PL and in our humble view these reports are according to its Rule and the full protocol was observed by the office of Chemical Examiner.

12. Turning to the arguments of learned counsel for the appellant concerning violation of Section 103, Cr.P.C, it would be appropriate to refer to Section 25 of the Control of Narcotic 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. Normally people are avoiding to give evidence against drug peddlers due to fear of their lives. 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 contraband 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. 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. The reliance is this regard is also placed on the case titled as 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.

2025 Y L R 1559

[Islamabad]

Before Arbab Muhammad Tahir and Muhammad Azam Khan, JJ

Khurram Masih---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 298 and Jail Appeal No. 331 of 2023, decided on 14th April, 2025.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Prosecution case was that 21025-grams charas was recovered from the vehicle driven by the accused---In narcotics cases, it was essential to prove the charge of possession of narcotics recovered from the accused while strictly adhering to the requirement that the contraband was searched and seized by an officer of at least the rank of Sub-Inspector---Additionally, samples from each packet must be collected and sent for chemical analysis, and those samples should be forwarded to the Forensic Science Laboratory within 72 hours of the seizure---Moreover, ensuring the proper handling and safe transmission of the samples to the Forensic Science Laboratory was also critical---In the present case, all of the said legal requirements had been properly adhered to---Under S.29, Control of Narcotic Substances Act, a presumption was attached in trials regarding the possession of illicit articles of which he failed to account satisfactorily, unless and until the contrary was proved by the appellant---Said burden was also not contradicted or disproven by the appellant/convict, who failed to explain his possession of such a large quantity of narcotic or his presence at the scene---On perusal of the Forensic Science Laboratory Reports, it revealed that, one of the reports mentioned the name of Head Constable as the person who deposited the sample and according to the prosecution story and the evidence produced Police Constable took all the 20 sealed sample parcels to the laboratory, but the reports mentioned the name of Police Constable as the depositor, which discrepancy would definitely benefit the appellant/convict as it could not be termed as a clerical mistake for the reason that on all three reports, the name of Police Constable was mentioned and not Head Constable---In that scenario, the prosecution had proved only five sample parcels which were sent by Head Constable to the Forensic Science Laboratory and the reports confirmed that they were tested positive for Charas Garda---According to Control of Narcotic Substances Act, before the amendment, the punishment for having in possession of Charas exceeding 4 kilograms and upto 5 kilograms was rigorous imprisonment for 7 years and 6 months with fine of Rs. 35,000 or in default simple imprisonment for 6 months and 15 days---Therefore, the prosecution had successfully established its case regarding 5 kilograms of Charas by presenting compelling and reliable evidence through six prosecution witnesses, leaving no room for doubt---Thus, the appellant/convict was convicted and sentenced for rigorous imprisonment for 7 years and 6 months with fine of Rs. 35,000/----Appeal was partially allowed with modification in sentence.

The State v. Bashir PLD 1997 SC 408; Muhammad Afzal v. The State PLD 2000 SC 816; Muhammad Idrees v. The State PLD 2006 Lahore 780; DODO v. The State 2009 YLR 2049; The State v. Imam Bukhsh 2018 SCMR 2039; Abdul Ghani v. The State 2019 SCMR 608; Qaisar Khan v. The State 2021 SCMR 363; Mst. Sakina Ramzan v. The State 2021 SCMR 451; Shah Zameen v. The State 2022 SCMR 2149; Lal Jan v. The State 2023 SCMR 1009; Muhammad Hazir v. The State 2023 SCMR 986; Asif Ullah v. The State 2023 YLR 966; Agha Qais v. The State 2009 PCr.LJ 1334 and Ashiq alias Kaloo v. the State 1989 PCr.LJ 601 ref.

Muhammad Ilyas Khan for Appellant.

Rana Hassan Abbas, ADPP and Zafar Iqbal, SI, PS Tarnol, Islamabad for the State.

Date of hearing: 4th March, 2025.

Judgment

Muhammad Azam Khan, j.---By this common judgment, we intend to dispose of Criminal Appeal No. 298/2023 and Jail Appeal No.331/2023 which stem from the Judgment dated 21.07.2023 ("Impugned Judgment") passed by the learned Additional Sessions Judge/Judge Special Court (CNS), Islamabad-West ("Trial Court") in case FIR No. 754/2020 dated 07.12.2020 under Section 9(c), Control of Narcotic Substances Act, 1997 ("CNSA") registered with Police Station Tarnol, Islamabad. Vide Impugned Judgment whereby the Appellant/ Convict has been convicted under Section 9(c) CNSA, 1997 and sentenced to undergo life imprisonment with fine of Rs.100,000/- (one lac) and in default whereof to further undergo one (01) year of simple imprisonment. The benefit of Section 382(B), Code of Criminal Procedure, 1898 ("Cr.P.C.") has also been extended to the Appellant/Convict.

1. The brief facts of the case as per the contents of FIR are that on 07.12.2020, on the directions of high ups, officials of CIA Staff comprising Zafar Iqbal, S.I/ Complainant/ Investigating Officer, Sudheer Abbas, ASI, Imran Shafique, 7455/C, Amir Zaman, 7229/C and Shahid Hayat, 7092/C were present in the area of Police Station Tarnol, Islamabad in connection with patrolling. Spy met Zafar Iqbal, S.I/ Complainant/ Investigating Officer and informed him that a vehicle bearing Registration No. AAC-164/Punjab is coming from Peshawar Motorway side with huge quantity of narcotics and the persons boarded in the vehicle use to sell narcotics in Islamabad Rawalpindi. Considering the information reliable, CIA officials reached at the Motorway Old Toll Plaza near Sector G-16/1, established checkpoint and started checking the vehicles coming from Peshawar motorway side. At approximately 04:20 pm, a vehicle with Registration No. AAC-164/Punjab arrived at the location. Upon noticing the police party, the driver attempted to flee, but the vehicle was successfully intercepted and stopped. The person sitting on the driving seat disclosed his name as Khurram Masih son of Nazeer Masih (present Petitioner). During the search of the vehicle, a white colored plastic bag with red and blue English writing was found on the front seat, beneath the dashboard on the Foot Mat. On search of the plastic bag, 20 packets wrapped in yellow coloured solution tape containing Charas Garda in the shape of littar were recovered. The recovered packets of Charas were weighed through electrical scale which came out to be 21025 grams. From each packet of recovered Charas, 10/10 grams were separated for chemical analysis. The samples were taken into possession through 20 separate parcels whereas the remaining packets of Charas were taken into possession through a single parcel. Hence, Subject FIR was registered against the Appellant/Convict.

2. After necessary investigation, the Appellant/Convict was sent up to the Trial Court to face deeds of his culpability, where on commencement of the trial, the Appellant/Convict entered the plea of denial, thus, the prosecution in order to bring home the charge, produced as many as six witnesses, and after close of the prosecution side, the Appellant refuted the allegations so brought and confronted with the allegations as envisaged under section 342 of Cr.P.C., whereafter, the Appellant/ Convict neither stepped into the witness box to depose on oath nor produced any evidence in his defense, hence on conclusion of the trial, the Appellant/Convict was convicted and sentenced in the terms mentioned in the paragraph supra. Being aggrieved of the Impugned Judgment, the Appellant/ Convict has filed the instant Appeal.

3. The learned counsel for the Appellant/Convict inter alia contended that the most important point which is not appreciated by the learned Trial Court while deciding the case is that in this case, all the witnesses were from CIA staff; that neither any Officer from the concerned Police Station was associated nor any permission from the concerned Police Station was taken while conducting the investigation of the instant case; that the CIA staff conducted the investigation of the case without the permission from the high ups; that the superior court expressed a similar view in cases reported as The State v. Bashir, PLD 1997 SC 408; Muhammad Afzal v. The State, PLD 2000 SC 816; Muhammad Idrees v. The State, PLD 2006 Lahore 780, and DODO v. The State, 2009 YLR 2049 Karachi; that the prosecution has failed to prove the safe custody in Maalkhana; that firstly the case property was kept in the Malkhana of CIA which is not a Police Station; secondly when the case property was produced before the Court, was broken and the same was not visible which creates doubt in the prosecution case; that considering the above-mentioned fact, it has not been proven in the present case that the samples of the alleged drug were kept in safe custody and securely transmitted from the recovery site to the Narcotics Testing Laboratory, which is a mandatory requirement in narcotics cases, reliance was placed on The State v. Imam Bukhsh, 2018 SCMR 2039; that Adnan Ali, 2009/C (PW-2) stated that he had deposited the sample parcels in the laboratory on the instruction of Zafar Iqbal, S.I/ Complainant/ Investigating Officer and not on the instruction of In-charge/SHO Police Station Tarnol while Ex.PH, Ex.PJ, Ex.PK and EX.PL are contradictory to the statement of above stated witness; that Zafar Iqbal, S.I/ Complainant/ Investigating Officer (PW-5) in his statement recorded before the Court stated that he sent the sample parcels along with Road Certificate to the NIH laboratory through Adnan Ali, 2009/C but astonishingly, Ex.PJ, Ex. PK and Ex.PL (Laboratory Reports) bears the name of the police official Imran Ahmad, Constable but neither he was in the list of the witnesses nor he was produced before the Court by the prosecution as a witness; that record of the present case shows that safe custody of recovered substance, as well as safe transmission of sample of recovered substance to the office of the Chemical Examiner, has not been established by the prosecution, reliance was placed upon Abdul Ghani v. The State, 2019 SCMR 608, Qaisar Khan v. The State, 2021 SCMR 363, Mst. Sakina Ramzan v. The State, 2021 SCMR 451, Shah Zameen v. The State, 2022 SCMR 2149, Lal Jan v. The State, 2023 SCMR 1009, Muhammad Hazir v. The State, 2023 SCMR 986 and Asif Ullah v. The State, 2023 YLR 966; that another important point which is not appreciated by the learned Trial Court while deciding the case is that Zafar Iqbal, S.I/ Complainant/ Investigating Officer had himself investigated the case; that it is clear that the person who is Complainant of the case in order to keep all fairness of things cannot investigate the same case which must be investigated by an independent Officer but not by the Complainant himself; that the superior Courts took similar view in cases reported as The State v. Bashir, PLD 1997 SC 408, Agha Qais v. The State, 2009 PCr.LJ 1334 and Ashiq alias Kaloo v. The State, 1989 PCr.LJ 601; that the prosecution has failed to prove its case against the Appellant/ Convict and the learned Trial Court instead of giving the benefit of the doubt to the Appellant/Convict, has wrongly favoured the prosecution; that there are material contradictions in the statements of PWs and the whole case of prosecution is full of doubts but learned Trial Court while convicting the Appellant/Convict has committed patent illegalities which caused grave miscarriage of justice; that the prosecution has miserably failed to bring home guilt of the Appellant/Convict and as such the Impugned Judgment has been passed without application of judicial mind and without taking into consideration the relevant provisions of law, hence, the Impugned Judgment has been passed in utter disregard of the material on record and relevant provisions of law which is against the administration of criminal justice. Lastly, the learned counsel requested that instant Appeal may kindly be accepted, Impugned Judgment may be set-aside and the Appellant/Convict be acquitted from the instant case.

4. Conversely, the learned Assistant District Public Prosecutor ("ADPP") vigorously resisted the arguments advanced by the counsel for the Appellant/Convict and submitted that the prosecution has proved the case against the Appellant/Convict beyond any shadow of doubt; that the safe custody and transmission has also been proved beyond any shadow of doubt, which does not in any manner vitiate the trial; that the prosecution witnesses remained consistent on material aspects of the case; that there is sufficient evidence available on record which connects the Appellant/Convict with the commission of the offence; that narcotics smugglers are ruining the society; that the Impugned Judgment is well reasoned and has been passed while keeping in view the evidence available on record; that there is no illegality or irregularity in the Impugned Judgment; and that the instant appeal may kindly be dismissed.

5. I have heard the learned counsel for the parties and have also perused the record with their able assistance.

6. The prosecution produced Naeem ul Hassnain, ASI as (PW-1) who was Moharrar, on 07.12.2020, and stated that Zafar Iqbal, S.I/Complainant/ Investigating Officer handed over to him, 20 sealed sample parcels and 01 sealed parcel of remaining case property for safe custody at Maalkhana which he kept there. Zafar Iqbal, S.I/Complainant/ Investigating Officer handed over to him one vehicle Honda City bearing Registration No. AAC-164 Punjab which he also parked at CIA Center. On 09.12.2020, on the direction of Zafar Iqbal, S.I/Complainant/Investigating Officer, he handed over 20 sample parcels to Adnan Khan for onward transmission to NIH, Islamabad. Adnan Khan, after depositing the sealed sample parcels in NIH, Islamabad handed over to him Road Certificate acknowledging receipt.

7. Adnan Ali, 2009/C (PW-2) took the 20 sealed sample parcels from the Moharrar Maalkhana on 09.12.2020 for onward transmission to NIH and deposited there on the same day and on return handed over Road Certificate acknowledging receipt to Moharrar.

8. Sudheer Abbasi, ASI (PW-3) came up with a similar story as mentioned in paragraph No. 3 of this judgment regarding the recovery of aforesaid narcotics from the possession of the Appellant/Convict, which was taken into possession through recovery memo. (Ex.PA). He produced memo. of Articles of Personal Search as Ex.PB. He also produced recovery memo. of the vehicle of the Appellant/Convict taken into possession by Zafar Iqbal, S.I/Complainant/Investigating Officer as Ex.PC.

9. Azmat Hayat Bhatti, S.I (PW-4), chalked FIR in the instant case, upon receiving the complaint sent by Zafar Iqbal, S.I/ CIA Staff, through Amir Zaman, 7229. The FIR bears his signatures. He returned the original complaint and a copy of the FIR to Amir Zaman, Constable, for delivery to the place of occurrence.

10. Zafar Iqbal, S.I (PW-5) who is the Complainant and Investigating Officer, reiterated what he had reported in complaint (Ex.PE). According to him, on 07.12.2020, he was on patrolling along with Sudheer Abbasi, ASI, Imran Shafique, Constable, Shahid Hayat, 7092/C and Amir Zaman, 7229/C when spy informed him that a vehicle Honda City bearing Registration No. AAC-164 is coming from Peshawar Motorway side with huge quantity of narcotics. Considering the information reliable, they reached at the Motorway Old Toll Plaza near Sector G-16/1, established police checkpost and started checking the vehicles coming from Peshawar motorway side. At about 04:20 pm, a vehicle bearing Registration No.AAC-164/Punjab reached there and the driver, upon noticing the police party, attempted to flee, but the vehicle was successfully intercepted and stopped. The person sitting on the driving seat disclosed his name as Khurram Masih son of Nazeer Masih (present Petitioner). During the search of the vehicle, a white colored plastic bag with red and blue English writing was found on the front seat, beneath the dashboard on the Foot Mat. On search of the plastic bag, 20 packets wrapped in yellow colour solution tape containing Charas Garda in the shape of littar were recovered. He weighed the recovered packets of Charas through electrical scale which came out to be 21,025 grams. He separated 10/10 grams Charas from each packet of recovered Charas for chemical analysis. He prepared 21 parcels (20 sample parcels and 01 parcel of remaining case property) sealed with the seal "ZA" and took the same into possession through recovery memo. Ex.PA. He conducted personal search of the Appellant/Convict as a result of which cash amount Rs.2,360/-, original CNIC of the Appellant/Convict, receipt of vehicle and 01 Nokia Mobile Phone were recovered which he took into possession through recovery memo. Ex.PB. He also took into possession the vehicle of the Appellant/Convict through recovery memo. Ex.PC. He drafted complaint Ex.PE and sent the same to the Police Station for registration of FIR through Amir Zaman, Constable. Amir Zaman, Constable came back to the spot from the Police Station along with copy of FIR and original complaint at the place of occurrence. He prepared unscaled site plan Ex.PF. He interrogated the Appellant/Convict, formally arrested him and recorded the statements of witnesses under Section 161 Cr.P.C. He then left the spot and went to the CIA Staff, where he handed over the case property including the vehicle and personal search articles to Moharrar CIA namely Naeem Hassnain (PW-1). On 08.12.2020, he sent the application Ex.PG for obtaining permission to investigate the case. On 09.12.2020, after taking sample parcels from the Moharrar Maalkhana, he sent the sample parcels along with Road Certificate to the NIH Laboratory, through Adnan Ali 2009/C who after depositing the same in NIH, handed over the receiving on back of the Road Certificate to him. He recorded statements of Moharrar Maalkhana Naeem ul Hassnain and Adnan Ali, 2009/C under Section 161 Cr.P.C. On 14.12.2020, he handed over case file to the S.H.O for preparation of Challan.

11. Amir Zaman, 7229/C (PW-6) has narrated the arrest of the Appellant/Convict and recovery of 20 packets of Charas from his possession. He brought the complaint from Zafar Iqbal, S.I/Complainant/Investigating Officer from the spot to the Police Station and handed over it to Azmat Hayat, S.I, who chalked out the FIR No.754/2020. Thereafter, Amir Zaman, 7229/C went to the place of occurrence and handed over the copy of FIR and the original complaint to Zafar Iqbal, S.I/Complainant/Investigating Officer who recorded his statement under Section 161 Cr.P.C.

12. The main contention of the learned Defense Counsel is that the CIA police has not obtained the necessary permission from his high-ups for conducting the investigation in a narcotic case and the permission to investigate this case was granted on 21.12.2020 i.e. after completion of the investigation. In this regard, the prosecution has exhibited an Application dated 08.12.2020 i.e. on the next date of registration of the FIR of this case, for obtaining necessary permission for investigation which is Ex.PG. Even at the bottom of the Complaint/Ex.PE, it is mentioned by Zafar Iqbal, S.I/ Complainant/Investigating Officer that permission to investigate the case was being requested from the high-ups, of course verbally. Similarly, at the bottom of the FIR, it is mentioned by Duty Officer Azmat Hayat Bhatti (PW-4) that the matter was being brought to the notice of S.H.O. P.S Tarnol who was out of the Police Station at that time. Hence, this objection holds no ground.

13. The second contention raised by the learned Defense Counsel is that the seal on the remaining case property is broken. Sudheer Abbasi, ASI (PW-3) who is a witness to the Recovery Memo. (Ex.PA) stated in his cross-examination that seal "ZA" is not visible on Ex.P1, self-stated, it was sealed but is not readable due to the passing of so much time. His statement was recorded on 19.10.2022 while the case was registered on 07.12.2020, i.e. almost one year and 10 months and it is natural that due to passage of such a long time the seal "ZA" has become unreadable, therefore, this is also not a material infirmity which could damage the prosecution case.

14. The third contention raised by the learned Defense Counsel is that the sample parcels were deposited by Adnan Ali, Head Constable while the Laboratory Reports Ex.PH, Ex.PJ, Ex.PK and EX.PL show that sample parcels were deposited by Constable Imran Ahmed. Whereas, except Laboratory Report which is Ex.PJ, all the other Laboratory Reports show that Constable Imran Ahmed deposited the sample parcels for chemical analysis while Ex.PJ shows that Head Constable Adnan Ali deposited the sample parcels.

15. The fourth contention raised by the learned Defense Counsel is that there are contradictions among the statements of the prosecution witnesses. The FIR was registered on 07.12.2020, and the prosecution witnesses were examined approximately one and a half years later. It is quite natural for minor contradictions to arise when a witness attempts to reconcile the events that occurred before him, especially when his statement is recorded after such a long delay. Hence, minor contradictions carry no weight to shatter the strong case of the prosecution in which a huge quantity of narcotics is recovered from the accused facing trial.

2025 Y L R 1620

[Islamabad]

Before Arbab Muhammad Tahir and Muhammad Azam Khan, JJ

Muhammad Iqbal alias Syed Ali---Appellant

Versus

The State---Respondent

Criminal Appeal No. 260 and Jail Appeal No. 277 of 2023, decided on 17th March, 2025.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Contradictions in the FIR and recovery memo---Prosecution case was that 8-kilograms heroin was recovered from the vehicle driven by the accused---Perusal of recovery memo. of the present case showed that it was clearly stated therein that during search of the car driven by the current appellant/convict, a white nylon sack was found beneath the CNG cylinder in the trunk of the vehicle at the location of the spare wheel---Upon opening the sack, eight packets wrapped in khaki-colored tape were discovered and after opening all the packets, brown-colored heroin was found inside---In that recovery memo, there was no mention of recovery of two packets of heroin from the dub of the shalwar of acquitted accused, rather all the eight packets were recovered from the trunk of the said car in a white sack beneath the CNG Cylinder---Contrary to that, the story of the Murasla and the FIR was totally different and as per the version two packets were recovered from the personal possession of acquitted accused, while six packets were recovered from the trunk of the said car beneath the CNG Cylinder---On this ground, one accused had already been acquitted, meaning thereby that there was a serious doubt regarding the recovery of the alleged eight kilograms heroin in the prosecution story---Appeal against conviction was allowed, in circumstances.

PLD 2019 SC 527; Muhammad Riaz and others v. The State and others 2024 SCMR 1839; Daniel Boyd Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Imran v. The State 2020 SCMR 857; Subha Sadiq v. The State 2025 SCMR 50; Muhammad Samiullah v. The State 2022 SCMR 998 and Khial Muhammad v. The State 2024 SCMR 1490 rel.

Raja Haseeb Sultan and Ms. Farzana Mumtaz for Appellant.

Rana Zulfiqar Ali, SSP, ANF for the State.

Date of hearing: 20th February, 2025.

Judgment

Muhammad Azam Khan, J.---By this common judgment, we intend to dispose of Criminal Appeal No. 260/2023 and Jail Appeal No.277/2023 both arising out of the Judgment dated 20.06.2023 ("Impugned Judgment") passed by the learned Judge, Special Court (CNS), Islamabad ("Trial Court") in case FIR No.46/2020 dated 07.05.2020, registered under Sections 6, 9(c) and 15 of the Control of Narcotic Substances Act, 1997 ("CNSA") registered with Police Station ANF RD North, Rawalpindi.

1. Both the titled Appeals have been filed by the Appellant/Convict [Muhammad Iqbal alias Syed Ali] against the Impugned Judgment passed by the learned Trial Court whereby the Appellant has been convicted under Section 9(c) CNSA and sentenced to undergo ten (10) years rigorous imprisonment with fine of Rs.100,000/- (one lac) and in default whereof to further undergo five (05) months simple imprisonment. The benefit of Section 382(B), Code of Criminal Procedure, 1898 ("Cr.P.C.") has also been extended to the Appellant.

2. The brief facts of the case in hand as per contents of the FIR are that on 07.05.2020, at about 14:00 hours, Sub-Inspector Mamoon ur Rasheed was present on duty in PS ANF RD North Rawalpindi, meantime, spy informer came to Police Station and informed that notorious inter provincial drug peddlers namely Muhammad Iqbal alias Syed Ali resident of Mansehra and Gul Muhammad Afghani will smuggle huge quantity of narcotics for supplying from Peshawar to interior Punjab through white colored vehicle bearing Registration No. LEI-1917 which will pass through Islamabad Interchange near Old Toll Plaza, Motorway, Islamabad at about 16:15 hours. On receipt of this information, after permission of high ups, Mamoon ur Rasheed, Sub-Inspector along with Muhammad Fayyaz, Subedar and Muhammad Imran, Waqas Khan and Imtiaz Aslam, Constables spy informer left the Police Station in official vehicle bearing Registration No. RIG-1177 driven by Masood Alam, Constable and arrived at the specified location at approximately 16:00 hours and set up a checkpoint (Naaka). They started surveillance of Mehran car coming from Peshawar side. At about 16:30 hours, the vehicle Mehran bearing Registration No.LEI-1917 was seen coming from Peshawar side wherein two persons were boarded. The vehicle was stopped by Mamoon ur Rasheed, Sub-Inspector with the help of accompanying officials and official vehicle as per pointation and indication of spy informer while adopting effective strategy. Both individuals were apprehended and removed from the vehicle. On asking names and addresses by Mamoon ur Rasheed, Sub-Inspector in presence of accompanying officials, the driver of the vehicle disclosed his name as Muhammad Iqbal alias Syed Ali son of Naseeb Ullah resident of Mansehra (present Appellant), whereas, the person deboarded from front seat of the vehicle, disclosed his name as Gull Muhammad son of Muhammad Raheem, Afghani by caste, permanent resident of District Sarobi, Province Kabul, Afghanistan, presently residing at Mohallah Qaziabad, Ganj Peshawar. On asking different questions regarding information about narcotics, they after some hesitation separately one after the other, disclosed regarding presence of narcotics in the right and left dub of Gul Muhammad's shalwar, as well as in the compartment for the spare wheel in the trunk of the vehicle in their possession. As per their disclosure and pointation, two packets wrapped in Khaki insulation tape were recovered from right and left dub of Gull Muhammad's shalwar, whereas, as per disclosure and pointation of Muhammad Iqbal and Gul Muhammad, six packets wrapped in Khaki insulation tape were recovered from a nylon sack, which was lying in the spare tire compartment of the trunk beneath the CNG cylinder. All eight packets were opened, and upon inspection, brown-colored Heroin was found inside each packet. When weighed at the scene, each packet was found to contain 1 kilogram of Heroin, bringing the total weight of the recovered Heroin to 8 kilograms, along with the packing material. A 10-gram sample of Heroin was taken from each packet, and 8 sample parcels were prepared for chemical analysis. The remaining Heroin, along with the packing material, was repacked into a parcel as part of the case property. All the parcels were sealed with the seal "MR/ANF". A total of nine parcels, including the sample parcels and the parcel containing the remaining case property and vehicle bearing No.LEI-1917 along with key were taken into possession by Mamoon ur Rasheed, Sub-Inspector through seizure memo. Personal search of both the accused was also conducted by Mamoon ur Rasheed, Sub-Inspector and recovered articles were taken into possession through separate seizure memos. Hence, subject FIR was registered.

3. After the registration of FIR, Challan under Section 173, Cr.P.C was submitted before the learned Trial Court. On 23.10.2020, photocopies under Section 265-C, Cr.P.C were supplied to the accused, and on 11.11.2020, charge was framed against the accused to which they pleaded not guilty and claimed trial. Thereafter, in support of their version, the prosecution produced four witnesses namely Azhar ur Rehman, Head Constable as PW-1; Murtaza Khan, Head Constable as PW-2; Mamoon ur Rasheed, Sub-Inspector as PW-3, and Waqas Khan, Ex-Constable as PW-4. On 12.06.2023, learned SPP after giving up PW Masood Alam, Constable being unnecessary and closed the prosecution evidence. Statements of the accused under Section 342, Cr.P.C were recorded wherein they opted not to produce defense evidence or to appear under Section 340(2), Cr.P.C to record their statements under oath. After hearing arguments of both the sides, the learned Trial Court vide the Impugned Judgment acquitted the accused Gull Muhammad of the charges, while present Appellant Muhammad Iqbal alias Syed Ali was convicted under Section 9(c), CNSA and sentenced to undergo rigorous imprisonment for ten years with fine of Rs.100,000/- (rupees one hundred thousand only) and in default of payment of fine to further undergo five (05) months simple imprisonment. The benefit of Section 382-B Cr.P.C was also extended to the Appellant/Convict. Being aggrieved of the Impugned Judgment, the Appellant/Convict has filed the instant appeals.

4. The learned counsel for the Appellant/Convict argued that the Impugned Judgment is totally against the law and facts of the case, without lawful justification and cogent reason, therefore, liable to be set-aside being not maintainable in the eyes of law. The learned counsel for the Appellant submitted that the learned Trial Court completely failed to consider the facts (i) that the Investigating Officer ("I.O") was dismissed from service for possessing forged documents as a result whereof all the investigations he initiated or conducted are illegal, unauthorized, and without justification; that due to the said reason, the investigation is highly questionable and without proper authority and consequently, the sentence imposed on the Appellant/Convict is not supported by sound legal reasoning, as it is based on an unauthorized and illegal investigation; (ii) that PW-3 as well as other witnesses, admitted that no public witness was associated/involved in the recovery proceedings by the I.O., which raises serious doubts about the I.O.'s acts and in fact, the I.O. deliberately chose not to involve any private individual from the public in the recovery proceedings, likely to cover up his illegal actions and unauthorized investigation; (iii) that the provisions of Section 103, Cr.P.C. are mandatory in nature and the legislature introduced these provisions to protect the public from potential injustices at the hands of local police, as such, the very registration of the alleged case is baseless, without lawful authority or justification, and goes against the norms of justice; (iv) that the prosecution has failed to present any criminal history of the Appellant/Convict, showing prior involvement in similar cases while during the evidence, it was established that the Appellant/Convict had never been involved in such cases nor had he been previously convicted by any court of law resultantly the entire proceedings initiated by the I.O are unfounded and merely a display of Police Karguzari/efficiency), intended to support their illegal actions and agenda. The learned counsel further argued that the Impugned Judgment and conviction of the Appellant/Convict is harsh and is in violation of Sections 367 and 544-A, Cr.P.C as well as Prohibition Law, therefore, the same is liable to be set-aside. Lastly, the learned counsel requested that instant Appeal may kindly be accepted, Impugned Judgment may be set-aside and the Appellant/Convict be acquitted of the charge.

5. On the other hand, the learned Special Public Prosecutor ("SPP"), ANF argued that the prosecution has successfully proved its case against the Appellant/Convict beyond any shadow of doubt; that the prosecution witnesses remained consistent on material aspects of the case; that there is sufficient evidence available on record which connects the Appellant/Convict with the commission of the offence; that narcotics smugglers are ruining the society; that the Impugned Judgment is well reasoned and has been passed after proper appreciation of the evidence available on the record which as such does not suffer from any illegality or irregularity; and that the instant Appeal may kindly be dismissed.

6. We have heard the learned counsel for the Appellant/Convict as well as the learned SPP, ANF and have also perused the record with their able assistance.

7. Azhar ur Rehman, Head Constable (PW-1) was posted as Moharrar Malkhana in the P.S ANF RD North, Rawalpindi, who stated that on 07.05.2020, Mamoon ur Rasheed, Sub-Inspector handed over to him eight sealed sample parcels said to contain 10/10grams Heroin sealed with the seal "MR/ANF" and one sealed parcel of remaining Heroin weighing 920 grams having seal "MR/ANF", articles of personal search of the accused, a motorcar bearing Registration No.LEI-1917 along with key. He entered all these items in register No.19. On 08.05.2020, he handed over eight sealed sample parcels containing 10/10 grams of Heroin to Waqas Khan, Constable along with Road Certificate for onward transmission to NIH, Islamabad, who on return after depositing the sealed sample parcels, handed over back the Road Certificate to him.

8. Murtaza Khan, HC (PW-2) stated that on 07.05.2020, he chalked the FIR in the instant case, after receiving complaint/Istighasa (Ex.PA) which was sent by Mamoon ur Rasheed, Sub-Inspector through Muhammad Imran, Constable. After registration of FIR, he made report on the original complaint and handed over one carbon copy of FIR along with the original reported complaint back to Muhammad Imran, Constable for sending it to Mamoon ur Rasheed, Sub- Inspector.

9. Mamoon ur Rasheed, Sub-Inspector (PW-3) who is the Investigating Officer in the instant case, stated that on 07.05.2020 at about 14:00 hours, he was present on duty in P.S ANF RD North, Rawalpindi, when informer came to Police Station and furnished information that a notorious interprovincial drug peddlers namely Muhammad Iqbal alias Said Ali resident of Mansehra and Gull Muhammad Afghani will smuggle huge quantity of narcotics for supplying to interior Punjab through vehicle bearing registration No.LEI-1917 from Peshawar. Upon this information, he along with other ANF officials boarded on official vehicle, reached at the motorway old Toll Plaza, Islamabad Interchange at about 16:00 hours and established a nakabandi. At about 16:30 hours, vehicle Mehran car bearing Registration No.LEI-1917 was seen coming from the Peshawar side which was signaled to stop, in which two persons were boarded. Both the persons were deboarded, on search of Gull Muhammad (since acquitted), recovery of two packets wrapped in khaki insulation tape was effected from the right and left dub of his shalwar. When the vehicle was searched, from the compartment where spare wheel was lying in the trunk of the vehicle, six packets wrapped in khaki insultation tape were recovered from nylon sack, which was lying in the spare tire compartment of the trunk beneath the CNG cylinder. All the eight packets were opened and on checking, Heroin brown color was found. Samples from each packet of 10/10 grams were obtained and eight sample parcels were prepared for the purpose of chemical analysis, while the remaining Heroin was packed along with packing material in parcel of remaining case property. All the parcels were sealed with the seal "MRANF". Recovery memo. was prepared witnessed by Masood Alam and Waqas Khan. Personal search of the accused was also made and separate recovery memo. was prepared witnessed by Masood Alam and Waqas Khan, Constables. He then drafted the complaint (Ex.PA) and sent the same through Muhammad Imran, Constable to the Police Station for the registration of FIR. Muhammad Imran, Constable brought the original reported complaint along with carbon copy of FIR. After completing the investigation on the spot, he came back to the Police Station and handed over the case property to Moharrar Malkhana. On 08.05.2020, sample parcels were sent to NIH through Waqas Khan, Constable who delivered it on the same day and handed over the receiving on the Road Certificate to Moharrar Malkhana.

10. Waqas Khan, ex-Constable (PW-4) stated that on 07.05.2020, he along with the other ANF officials recovered eight packets of Heroin from the accused. He is witness to the recovery memos and he also deposited the sample parcels in the NIH, Islamabad.

11. The learned Trial Court while deciding the instant case, vide Impugned Judgment, acquitted co-accused namely Gul Muhammad, on the ground that "Record reveals that according to the complaint Ex.PA, 01 kilogram of heroin was recovered from each dub of worn shalwar of accused Gul Muhammad however, in sharp contrast to the stated version, according to the recovery memo. Ex.PC, the entire 08 kilograms of heroin was recovered from the trunk of the vehicle seized in the present case. Learned counsel for the accused, while referring to the stated contradiction in the two documents of the prosecution, contended that the same has nullified the nature of the recovery in the present case and thus, pleaded that the accused facing trial should be acquitted on the basis of such contradiction. No doubt, the stated contradiction has occurred in the case of the prosecution but the same cannot be considered to have nullified the recovery itself rather, it has created doubt regarding the recovery of 02 kilograms of heroin only. While accepting the stated contradiction in the case of the prosecution, the same would only create doubt regarding recovery of any contraband from accused Gul Muhammad and recovery of 08 kilograms of heroin from the trunk of the vehicle seized in the present case and thus, benefit of doubt can only be extended to such an extent in the present case. So, the stated contradiction would make the liability of accused Gul Muhammad doubtful resulting in his acquittal and would create doubt to the extent of recovery of 02 kilograms of heroin from the trunk of the seized vehicle but such contradiction would not affect the recovery of 06 kilograms of heroin from the seized vehicle to the extent of which, the liability has been fully proved on the record".

12. Perusal of Ex.PC, a recovery memo. of the present case, shows that it is clearly stated therein that during search of the car driven by the current Appellant/ Convict, a white nylon sack was found beneath the CNG cylinder in the trunk of the vehicle, at the location of the spare wheel. Upon opening the sack, eight packets wrapped in khaki-colored tape were discovered, and after opening all the packets, brown-colored Heroin was found inside. In this recovery memo, there is no mention of recovery of two packets of Heroin from the dub of the acquitted accused namely Gul Muhammad's shalwar, rather all the eight packets were recovered from the trunk of the said car in a white sack beneath the CNG Cylinder. Contrary to this, the story of the Murasla and the FIR is totally different and as per the version there, two packets were recovered from the personal possession of acquitted accused Gul Muhammad, while six packets were recovered from the trunk of the said car beneath the CNG Cylinder. On this ground, one accused namely Gul Muhammad has already been acquitted, meaning thereby that there is a serious doubt regarding the recovery of the alleged eight kilograms Heroin in the prosecution story. Reliance is placed on PLJ 2019 Supreme Court (CR.C) 265 Original Jurisdiction, in which it is held that "Falsus in uno, Falsus in omni bus" Latin phrase (false in one thing is false in everything). The said proposition was regarding a portion of a false statement given by a witness, hence, the whole statement of that witness cannot be believed. In the present case, there is huge contradiction between the recovery memo. Ex.PC and Complaint Ex.PA and FIR Ex.PB. In a criminal case, the benefit of the doubt always favors the accused, and the aforementioned doubt significantly undermines the prosecution's case. This raises the possibility that either the recovery memo. Ex.PC or the Complaint Ex.PA was not prepared by the witnesses and appears to not have been created at the scene. Waqas Khan, Ex-Constable PW-4, during his cross-examination, admitted that according to the recovery memo. Ex.PC, no contraband was recovered from the personal possession of the acquitted accused, Gul Muhammad. This clearly indicates that no recovery was made from Gul Muhammad. However, according to the complaint and the FIR, two packets were allegedly recovered from the dub of the Gul Muhammad's shalwar. This suggests that there was no clerical error in preparing the recovery memo. Ex.PC; instead, it confirms that the initial investigation was not conducted at the scene. In the esteemed judgment of the august Supreme Court of Pakistan titled Muhammad Riaz and others v. The State and others" 2024 SCMR 1839, it was held that "From the above-stated facts and circumstances, it is abundantly clear that in this particular case, the prosecution version is burdened/loaded with major discrepancies, which create serious doubts about its authenticity. The prosecution version with regard to the manner of killing, the medical evidence and the recoveries, contradict each other on material points creating serious cracks in the prosecution version. The prosecution has failed to bring on record any convincing material to establish that it was the appellants who had committed the occurrence. It is an established principle of law that to extend the benefit of the doubt it is not necessary that there should be so many circumstances. If one circumstance is sufficient to discharge and bring suspicion in the mind of the Court that the prosecution has faded up the evidence to procure conviction then the Court can come forward for the rescue of the accused persons as held by this Court in Daniel Boyd (Muslim Name Saifullah) and another v. The State (1992 SCMR 196); Gul Dast Khan v. The State (2009 SCMR 431); Muhammad Ashraf alias Acchu v. The State (2019 SCMR 652); Abdul Jabbar and another v. The State (2019 SCMR 129); Mst. Asia Bibi v. The State and others (PLD 2019 SC 64) and Muhammad Imran v. The State (2020 SCMR 857). As the prosecution has failed to prove its case, we find there is no need to ponder the plea of alibi raised by the appellants in the defence". Reliance in this regard is also placed on case titled Subha Sadiq v. The State" 2025 SCMR 50.

13. The reasoning given by the learned Trial Court that the said contradiction cannot be considered to have nullified the recovery itself rather, it has created doubt regarding the only recovery of two kilograms of Heroin is not rational, as the significant discrepancy between the mode of recovery and the location from where the alleged Heroin was recovered casts serious doubt on the entire case. Such inconsistencies raise serious concerns about the credibility of both the recovery memo. and the complaint, which are claimed to have been prepared on the spot and also create doubts about which facts are true and whether any of them can be trusted to support the conviction of the Appellant. Reliance is placed upon the rulings of Supreme Court of Pakistan cited in Muhammad Samiullah v. The State, 2022 SCMR 998 and Khial Muhammad v. The State, 2024 SCMR 1490. Relevant portions from the aforementioned case law are reproduced hereunder:-

2022 SCMR 998 titled "Muhammad Sami Ullah v. State":

---Reasonable doubt, benefit of ---Scope---Single circumstance creating reasonable doubt in a prudent mind about the guilt of accused makes him entitled to its benefits, not as a matter of grace and concession but as a matter of right---Conviction must be based on unimpeachable, trustworthy and reliable evidence---Any doubt arising in prosecution's case is to be resolved in favour of the accused.

2024 SCMR 1490 titled "Khial Muhammad v. The State":

---Benefit of doubt---Principle---For the accused to be afforded the right of benefit of 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 go to the accused---Any doubt arising in prosecution case is to be resolved in favour of the accused.

2025 Y L R 1644

[Islamabad]

Before Arbab Muhammad Tahir, J

Naseeb Rawan---Petitioner

Versus

The State---Respondent

Crl. Misc. No. 1929-B of 2023, decided on 29th January, 2024.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act (XX of 2022)], Ss. 5, 6, 9(1) & 9(2)---Possession and transportation of narcotic substances---Bail, refusal of---Allegation against the accused-petitioner was that he was found in possession of 800-grams ice and 250-grams heroin---Petitioner had been apprehended while in possession of 800-grams ice and 250-grams heroin---Report of the Forensic Science Agency confirmed the contraband to be as such---Petitioner was arrested at the spot, hence there was no probability of mistaken identity---Offence under SS9(1)6(b) falls within the prohibitory clause of S.497, Cr.P.C---Furthermore, the nature of offence (i.e. offence against society), the likelihood of repetition of offence, existence of prima facie sufficient incriminating material connecting the petitioner with the commission of offence in the shape of positive report of the Chemical Expert, recovered narcotic substance and statements of witnesses under S.161, Cr.P.C, were sufficient grounds/reasons to decline the relief of post arrest bail to the petitioner---Bail petition was dismissed, in circumstances.

Ateeb ur Rehman alias Atti Mochi v. The State and others 2016 SCMR 1424; Gull Muhammad v. the State 2022 MLD 2071; Rehmat Gul v. The State 2022 PCr.LJ Note 48 and Ghulam Murtaza and another v. The State PLD 2009 Lahore 362 ref.

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

----S. 497---Bail order---Observations of the Court---Scope---Observations made by Court in bail orders are tentative which should not affect rights of the parties during trial.

Musadiq Aziz for Petitioner.

Rana Zulfiqar Ali, SPP ANF with Mashooq Ali, DD and Fawad, SI for the State.

Order

Arbab Muhammad Tahir, J.---The petitioner is seeking post arrest bail in FIR No. 198, dated 12.11.2023, under Sections 9(2) 5, 9 (1) 6(b) of the Control of Narcotic Substances Act, 1997 ("Act of 1997"), registered at Police Station ANF RD/North, Rawalpindi.

1. The facts, relevant for adjudication of the petition in hand are that on 12.11.2023, at about 11:00 a.m., the police intercepted a passenger van near M-1 Motorway Exit Islamabad. The personal search of petitioner lead to the recovery of Ice weighing 800 grams and heroin weighing 250 grams, hence the FIR was registered. During investigations, the petitioner had disclosed the source from the narcotic substances were received for onward delivery.

2. Learned counsel contends that the petitioner is innocent and has falsely been involved in the instant case; that the story narrated in the FIR is concocted; that the alleged place of recovery is populated area and no person from the locality has been associated; that case of the petitioner calls for further inquiry; that investigation has since been completed and the petitioner is no more required for further probe and that petitioner does not retain any criminal record, therefore, entitled to the concession of post-arrest bail. Learned counsel has placed reliance on the cases reported as "Ateeb ur Rehman alias Atti Mochi v. The State and others" [2016 SCMR 1424], "Gull Muhammad v. the State" [2022 MLD 2071 Islamabad], "Rehmat Gul v. The State" [2022 PCr.LJ] Note 48 Islamabad], "Ghulam Murtaza and another v. The State" [PLD 2009 Lahore 362].

3. Conversely, learned Special Prosecutor, ANF vehemently opposed the bail application of the petitioner and argued that huge quantity of narcotics was recovered from the possession of the petitioner; the petitioner is connected with the commission of offence; sufficient incriminating material is available on record; that the offence alleged in the FIR is not bailable, therefore, not entitled to the concession of bail.

4. Heard. Record perused.

5. Before adverting to the grounds raised in support of the bail, I shall summarily highlight the main functions of the investigating agencies under the Act of 1997 to curb the menace of drug abuse. The Act of 1997 has been enacted to prohibit possession of narcotic substances and rehabilitate victims of drug abuse. To ensure strict adherence to the provisions of the Act of 1997, penalties have been provided under section 9 thereof. In order to ensure that no one indulges in the dealing and trafficking of narcotic substances in violation of the Act of 1997, the profit derived and properties acquired out of such profit have been declared as liable to confiscation. How can this goal be achieved? Will the State establish separate entities to enforce each provision of the Act of 1997 and let the police/ANF proceed with investigations of narcotics cases without due adherence to provisions of the Act of 1997?

6. When a criminal case is registered on the allegation of possession of narcotic substance, the accused is arrested at the spot. Then the line of investigation (without prejudice to the Act of 1997 and the rules made thereunder) should be.-

(i). to investigate from whom the recovered narcotic substance was received/purchased by accused;

(ii). to whom the delivery of narcotic substance was intended;

(iii). to investigate the purpose/ultimate utilization for the recovered narcotic substance;

(iv). to trace the drug abusers (for their rehabilitation);

(v). who are deriving financial benefits and the use/purpose of the derived finance/assets;

(vi). who are the persons engaged in the business in contravention of the Act of 1997 (starting from cultivator/manufacturing to the end abuser);

(vii). and which are the assets derived by persons engaged in dealing with narcotics.

1. The Act of 1997 provides for comprehensive mechanism to deal with all matters so as to curb the menace of drug abuse, which in fact is a great threat to the society and adversely affecting life of citizen. It is mandatory for the Investigating to conduct investigations on true lines in accordance with the spirit of the Act of 1997. Sections 6, 7 and 8 of the Act of 1997 prohibit possession of narcotic drugs, import or export and trafficking or financing the trafficking of narcotic drugs. Section 8(a) provides that no one shall organize, manage, traffic in or finance the import, transport, manufacturing or trafficking of narcotic drugs, psychotropic substances or controlled substances. Section 14 of the Act provides that no one shall, within or outside Pakistan, participate in, associate or conspire to an offence punishable under the Act of 1997.

2. Chapter IV of the Act of 1997 deals with freezing and forfeiture of assets. Section 37 empowers the Court and appropriate officers to order freezing of assets. Section 38 empowers the investigating agency to trace and identify assets acquired through illicit involvement in narcotics. Section 39 provides that after the accused is convicted of an offence under the Act of 1997, on request of the investigating agency, the Court is empowered to order forfeiture of assets of the convict, or as the case may be, his associates, relatives or any other person holding or possessing assets on behalf of the convict. It is also pertinent to refer to section 42 of the Act of 1997, which makes the acquisition of assets, frozen under the provisions ibid, punishable with imprisonment for a term which may extend to three years and with fine.

3. Section 49A (Remand) has been inserted by section 19 of Control of Narcotic Substances (Amendment) Act, 2022 in the Act of 1997, which provides that a person arrested for breach of the provisions thereof shall, having regard to the facts and circumstances of the case, be liable to be detained in custody for the purpose of inquiry and investigation not exceeding "ninety days". The Magistrate while dealing with the request for remand of the accused submitted by the investigating officer is, therefore, bound to consider such request keeping in view the scope of investigations provided under the Act of 1997. On query raised by this Court, the investigating officer has stated that normally when the accused is arrested, narcotic substances is recovered at the spot, therefore, it is general understanding of the Magistrates that after recovery further physical remand would be futile. Such statement, however, is subject to confirmation; nonetheless such concept is violative of the basic spirit of the Act of 1997. Curbing the menace of drug/narcotic abuse is not an easy task; rather the same would require restless efforts of every stakeholder in the criminal justice system. One case of narcotic substance, if investigated in the manner in which the Act of 1997 is structured, would bring to justice the whole chain i.e. cultivator/manufacturer, peddler, seller and drug abuser and would serve as deterrent factor in the society. The manner in which narcotics cases are being investigated favours the real culprits. The drug peddlers are caught and sent to jail. Nobody dares to investigate the giants who derive profits out of such illicit drug/narcotic deals. Their assets are never investigated. The two ends i.e. drug dealer, cultivator, manufacturer and the drug/narcotic abusers are never held accountable. This would never have been intention of the legislature while enacting the Act of 1997. Investigating the assets (derived from the proceeds of illicit drug dealing) of persons involved in narcotics cases is mandatory for making a request to the Court by the Investigating agency for confiscation/forfeiture of the same. It is, therefore, not the discretion of the investigating agency, but a bounden duty of the investigating agency to investigate complete chain in the commission of offence and trace the assets derived out of such illicit trade.

4. In compliance with the order of this Court, the learned Special Prosecutor, ANF has placed on record copy of SOPs adopted by the Anti-Narcotics Force for investigation of criminal cases. Perusal of the SOPs shows that they are comprehensive and covers every aspect of a criminal case registered under the Act of 1997. However, in the investigations of the instant case, provisions of the Act of 1997, the rules made thereunder and the SOPs adopted by ANF, to the extent of tracing assets and discovering the complete chain of culprits, have not been complied with. As a result of such incomplete Investigations, the society would face the menace of narcotics/drugs abuse forever. If the State prefers to penalize citizens for possessing fruit of a forbidden tree and opts not to cut that forbidden tree and holding its beneficiaries accountable, the outcome would be absurd. Similarly, not investigating the main culprits/sources of narcotic substance in a criminal case would grant them a licence to violate the Act of 1997 and cause irreparable damage to the society.

5. The Federal Prosecution Service Act, 2023 (hereinafter the "Act of 2023"), has been enacted by the Parliament and duly notified in the official gazette on 31.10.2023 and by virtue of subsection (2) of section 1, its application is extended to the whole of Islamabad Capital Territory. Section 20 of the Act of 2023 provides that its provisions shall have overriding effect on all other laws including the Code of Criminal Procedure, 1898. Under the Act of 2023, the Prosecutor General and other prosecutors are, inter alia, empowered to examine reports under section 173 Cr.P.C., call for report from the law enforcement agencies in relation to investigation, refer to the authority competent to initiate disciplinary proceedings under any law, to take disciplinary action against any public servant working in connection with investigation or prosecution. Section 9(2) provides that the report under section 173 Cr.P.C., including a report of cancellation of FIR or a request for discharge of a suspect or an accused or a complaint by a public servant authorized to file a complaint shall be submitted to the court through the prosecutor (appointed under the Act of 2023). Subsection (3) of section 9 empowers the prosecutor to review the police report or the complaint, as the case may be, in accordance with the provisions of Cr.P.C or the Act of 2023. Subsection (4) of section 9 of the Act of 2023 provides that where a prosecutor requires clarifications, or is of the view that additional evidence needs to be collected, he may return the police report or complaint with observations that (i) to clarify the method of collection of evidence, (ii) to explain why a particular line of inquiry was not followed (iii) to explain why a defence was not considered, (iv) to collect additional evidence. Non-compliance with the provisions of the Act of 1997 is squarely hit subsection (4) of section 9 of the Act of 2023. The Prosecutor General or any other prosecutor is, therefore, empowered to return the report under section 173 Cr.P.C. submitted by the investigating agency if the investigations in narcotics cases have not been conducted according to the spirit of the Act of 1997.

6. Reverting back to the merits of the case, the available record has been tentatively assessed. The petitioner had been apprehended while in possession of 800 grams methamphetamine (ice) and 250 grams heroin. The report of the Punjab Forensic Science Agency confirms the contraband to be as such. The petitioner was arrested at the spot; hence there is no probability of mistaken identity. The punishment for contravention of the provisions sections 6, 7 and 8 of the Act of 1997 regarding narcotic drugs i.e. possessing 250 grams heroin 9(1)6(b) is imprisonment which may extend to ten years but shall not be less than seven years with fine upto one hundred and twenty five thousand rupees, whereas, in case of possessing 800 grams psychotropic substance i.e. methamphetamine (ice) has been provided in section 9(2)-Sr. No.5 of the Table as imprisonment which may extend to seven years but shall not be less than five years with fine upto eight hundred thousand rupees. The offence under section 9(1)6(b) falls within the prohibitory clause of section 497 Cr.P.C. Furthermore, the nature of offence (i.e. offence against society), the likelihood of repetition of offence, existence of, prima facie, sufficient incriminating material connecting the petitioner with the commission of offence in the shape of positive report of the Chemical Examiner, recovered narcotic substance and statements of witnesses under section 161 Cr.P.C., are sufficient grounds/reasons to decline the relief of post arrest bail to the petitioner.

7. For what has been discussed above, the instant petition is dismissed with following directions.-

(a) After insertion of section 49A in the Act of 1997, the maximum period of remand is ninety days. As highlighted above, the investigation in narcotics cases is not limited to mere recovery of narcotic substance from the peddler but extends to the source, manufacturer, cultivator, seller, dealer, etc. The Magistrate while dealing with the request of remand shall give due consideration to facts and circumstances of the case and the scheme of the Act of 1997 and grant physical remand of the accused for a reasonable period.

(b) Investigating the complete chain in commission of offence under the Act of 1997 and trace the assets derived out of such illicit trade/dealing is the bounden duty of the investigating discretion. agency and not investigating officer shall, therefore, Investigate all persons and trace their assets involved in the commission of offence under Act of 1997.

2025 Y L R 1963

[Islamabad]

Before Mohsin Akhtar Kayani and Sardar Ejaz Ishaq Khan, JJ

Muhammad Zubair and another---Appellants

Versus

The State and another---Respondents

Jail Appeals Nos. 311, 343 and Criminal Appeal No. 292 of 2024, decided on 5th March, 2025.

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal conspiracy, recovery of explosive material, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Recovery not proved---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10 detonators, prima card wire 05 meters, .30 bore two pistols with 19-live bullets---Two recovery witnesses appeared before the trial Court---From the statements of recovery witnesses, a particular bag of cloth in the right hand of appellant"D" was highlighted, the plastic envelope in which explosive substance was wrapped, the white paper in which detonator was wrapped, string of Shalwar and Shalwar from where pistol and magazines were recovered and at last piece of paper with phrase Tahreek-e-Labaik were coming, but astonishingly these recoveries had not been exhibited in the Trial Court which were the key evidence to conclude the entire chain of evidence against the appellant "D"---Similarly, recovery witness in his affirmative evidence referred a "bag" in the right hand of the appellant "MZ", black shawl (chadar), plastic envelope, detonators wrapped in white paper and string of Shalwar as well as right armpit pocket of the accused---All those incriminating materials carrying explosive as alleged by the prosecution as well as pistol and live bullets were missing in the case, neither the same were produced in the Court nor any recovery memo. was prepared by the Investigation Officer of the case to that extent---In all kind of recoveries in any criminal case whether of narcotics or of explosive substance the police authorities are under obligation to discharge their duties in terms of Police Rules, 1934, dealing with case property---In the present case, recovery witnesses as well as Investigating Officer were not able to demonstrate as to why the bag from where explosive substance was recovered from both the appellants, the cloth, shawl, white paper and plastic bag were not produced to complete the chain of evidence---In absence of those crucial part of evidence when the same were not produced or exhibited in the trial, same could not be considered proven and conviction could not be made---Appeal against conviction was allowed, in circumstances.

Qamar Zaman v. Waseem Iqbal and others 2004 SCMR 1209; State of Islamic Republic of Pakistan through Deputy Attorney General v. Kenneth Marshal and others 2005 SCMR 594; Gul Dast Khan v. The State 2009 SCMR 431; Amjad Ali v. State 2012 SCMR 577; Abrar Hussain v. State 2017 PCr.LJ 14; Muhammad Mushtaq v. State PLD 2006 Pesh. 39; Fayyaz Shah v. State 2015 YLR 2189 and Ahmed Ali v. State 2023 SCMR 781 rel.

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

----Art. 129(g)---Withholding best available evidence---Presumption---When available evidence has been withheld by the prosecution and there is no plausible explanation for the non-production or withholding of the same in Court, an adverse inference or assumption against the prosecution can be drawn under Art.129(g) of the Qanun-e-Shahadat, 1984 and it can easily be presumed that no such material is in existence.

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal conspiracy, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---CCTV footage, recovery of---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10-detonators, 05 meters prima card wire, two 30-bore pistols with 19-live bullets---In the present case, CCTV footage was produced, but mere production of CCTV video as a piece of evidence and its watching in open court was not sufficient to be relied upon unless and until corroborated and proved to be genuine---To proof genuineness of such CCTV video, it was incumbent upon prosecution to examine the person who recorded the video to testify the same---Investigation Officer who received CCTV video stated in his evidence that he received it from a person who did not want to disclose his name or identity being a man of some surveillance---Thus, it appeared that entire case based upon the USB content played in the trial Court was inadmissible which was not proved in accordance with law nor had any sanctity in eye of law to award capital sentence to the appellant through such tainted piece of evidence---Appeal against conviction was allowed, in circumstances.

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

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4, 5 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal conspiracy, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Restriction on trial of offences---Failure to get permission from the competent authority for prosecution---Effect---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10-detonators, 05 meters prima card wire, two 30-bore pistols with 19-live bullets---In the present case, the accused were also charged with Ss.4 & 5 of Explosive Substance Act, 1908---However, the said law was to be applied after fulfillment of requirement of S. 7 of the Act---While dealing with the said provision of law, the stance taken by the Investigation Officer was silent with reference to receiving of any sanction at the first stance from any government or any authority under the law---Even the Investigation Officer was negligent who had not referred a single request within two days of registration of case for sanction to be obtained---Legislative intent if seen in the provision highlighted with the use of word "shall" reflected mandatory provision of law that must be complied with---Thus, the entire prosecution conducted under charges of 4 & 5 of Explosive Substance Act, 1908, crumbled down---Appeal against conviction was allowed, in circumstances.

Abdul Aziz alias Sadam v. The State 2023 YLR 1821; Ahmed Khan v. Member Consolidation Board of Revenue PlD 1990 SC 1070; Yousaf Ali v. Muhammad Aslam Zia PLD 1958 SC 104; Fakhra Malik v. Secretary to Government of the Punjab PlD 1982 Lah. 606; Muhammad Tariq Khan v. Khawaja Muhammad Jawad Asami 2007 SCMR 818; Talib Hussain v. Member Board of Revenue 2003 SCMR 549; Pakistan Industrial Promotors Ltd. v. Nawazish Ali Jafari 2003 YLR 1277 and Crescent Sugar Mills and Distillery Ltd., Faisalabad v. Central Board of Revenue, Islamabad PlD 1982 Lah. 1 rel.

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal conspiracy, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Delay of six days in sending the samples to laboratory for analysis---Effect---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10-detonators, 05 meters prima card wire, two 30-bore pistols with 19-live bullets---Record showed that there was delay of six days in sending the samples to Forensic Science Laboratory for analysis---Appellants had been taken into custody on 03.01.2023 and all the recoveries had been effected on the said date by complainant---National Forensic Science Agency Report in respect of explosive substance reflected that same was received on 09.01.2023 after delay of 06 days, wherein the submitting authority referred in the report was SSP Investigation through constable who only received report wherein Investigation Officer had transmitted two prima cords and two sample parcels said to contain explosive substance each vide Road Certificate to National Forensic Science Agency, but surprisingly, the National Forensic Science Agency Report was silent with reference to Constable and no justified explanation had been rendered in that regard---Ordinarily the delay in sending samples would go against the prosecution case, especially, in case of narcotics under Chemical Analyst Rules, where 72 hours timeline was provided which was directory in nature but in this case where a capital sentence is required to be passed the prosecution is under obligation to show their extra ordinary vigilance and expertise to perform all lawful obligation within shortest possible time to avoid any unnecessary objection in the trial by the defence and to demonstrate transparency in such type of sensitive cases failing which adverse inference has to be drawn---Appeal against conviction was allowed, in circumstances.

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal conspiracy, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-production of police register and roznamcha---Effect---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10d etonators, 05 meters prima card wire, two 30-bore pistols with 19-live bullets---Prosecution had not been able to demonstrate any justifiable reasons as to why register No.19 was not produced or entries of said parcels in Roznamcha which was an admitted phenomena---Police Official, who acknowledged that he remained present in police station 24/7 and the concerned entries were made in the Roznamcha about sending of the sample parcels to National Forensic Science Agency, however, said Roznamcha was not available at the moment---Roznamcha was not produced in the Court and the impugned judgment was silent to that effect---Police Official also acknowledged that he delivered 10 parcels and did not make entries of said parcels in the Roznamcha, however, the entries were made in register No.19, but such statement had no effect when neither the said register nor road certificate was produced in the Court to demonstrate that all required processes were completed in the best manner to exclude all kinds of doubts on the safe transmission and custody of the explosive material/substance---Resultantly, the recovery was inconsequential having no effect---Appeal against conviction was allowed, in circumstances.

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal conspiracy, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Malicious intent---Scope---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10 detonators, 05 meters prima card wire, two 30-bore pistols with 19-live bullets---In order to secure a conviction under S. 4, Explosive Substance Act, 1908, the prosecution is to establish that the possession of explosive substance was accompanied with a malicious intent to endanger life or cause serious injury to property---Said fact was the key difference between Ss. 4 and 5, Explosive Substances Act, 1908, in that the latter criminalized mere possession of explosive substance, without there being any condition of the same being with a malicious intent to endanger life or cause serious injury to property---Nothing in the entirety of the prosecution evidence or the impugned judgment to establish the "malicious intent"---Appeal against conviction was allowed, in circumstances.

Muhammad Asjad v. The State and others 2024 SCMR 1959 rel.

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), S. 103---Criminal conspiracy, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses at the time of arrest and recovery---Effect---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10 detonators, 05 meters prima card wire, two 30-bore pistols with 19-live bullets---Section 103, Cr.P.C., requires that before making search under the said provision the office shall call upon two or more respectable inhabitants of the locality in which the place to be searched and recovery memo. shall be prepared which is required to be signed by such witnesses---Complainant could easily arrange the witness as he conducted raid on spy information---Even otherwise, complainant acknowledged that at the place of arrest in the surrounding area there was buildings and populations was there---At the time of arrest of present accused there were public as well---Similar aspect was also acknowledged by Investigation Officer---Said fact was further confirmed by another Police Official to the effect that the Investigation Officer did not ask anyone from the public who were present at the spot to become witness of the alleged occurrence---While considering those technical aspects and requirements of S. 103, Cr.P.C., all three prosecution witnesses stated that the public witnessed the raid/arrest, yet there was nothing available on record to even remotely indicate that the prosecution attempted to associate any independent/private witness, despite ample availability of the same---Impugned judgment was entirely silent on that point---Appeal against conviction was allowed, in circumstances.

Salah-ud-Din v. The State 2010 SCMR 1962; Bashir Ahmed v. The State 2024 YLR 1436; Ramesh Kumar v. The State 2024 MLD 608; Tariq Pervez v. The State 1995 SCMR 1345; Ghulam Qadir and 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.

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

----S. 120-B---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Criminal conspiracy, keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, possession of illicit weapon, act of terrorism---Appreciation of evidence---Benefit of doubt---Criminal conspiracy not proved---Accused were found in possession of a plastic bag containing 910 grams explosive substance, 10 detonators, 05 meters prima card wire, two 30-bore pistols with 19-live bullets---Record showed that charge under S. 120, P.P.C., of criminal conspiracy had not been proved as under Art. 23 of Qanun-e-Shahadat Order, 1984, certain requirements had been laid down for proof of conspiracy---In the entire proceedings of the case, prosecution had not tendered any such evidence to prove minimum requirement of criminal conspiracy as where to constitute a criminal conspiracy there must be an agreement of two or more persons to do an act which was illegal or which was to be done by illegal means---Appeal against conviction was allowed, in circumstances.

Muhammad Ashfaque alias Chief and others v. The State 1998 PCr.LJ 1486 and Zulfiqar Ali Bhutto v. The State PLD 1979 SC 53 rel.

Ms. Imaan Zainab Hazir, Javed Iqbal, Ms. Kaneez Zehra and Zia-ul-Haq Kiani for Appellants.

Wajid Muneer DDPP, Ashraf, DSP/CTD and Junaid, SI/CTD for the State.

Assisted by: Ms. Ayman Azeem, Law Clerk.

Date of hearing: 19th February, 2025.

2025 Y L R 2080

[Islamabad]

Before Inaam Ameen Minhas, J

M/s Ch. A Latif & sons (Pvt.) Limited through Authorized Representative and 2 others---Petitioners

Versus

National Highway Authority, through Chairman and another---Respondents

Writ Petition No. 1503 of 2025, decided on 27th May, 2025.

(a) Public Procurement Rules, 2004---

----Rr. 48 & 48(7)---Constitution of Pakistan, Art. 199---Dualization and Rehabilitation project advertised by NHA---Pre-qualification for award of contract, application for---Disqualification on the ground of non-compliance with pre-qualification requirements---National Highway Authority (NHA) invoking past performance clause for disqualification---Constitutional jurisdiction of High Court---Adequate remedy, non-availing of---The petitioners were initially pre-qualified by the National Highway Authority (NHA) for participation in the "Dualization and Rehabilitation of Karachi-Quetta-Chaman Road (N-25)" project, however, they were disqualified based on alleged non-performance of a prior contract with Lahore Development Authority (LDA)---Their complaint to the Grievance Redressal Committee (GRC) was dismissed as time-barred, and they did not avail the appellate remedy under R.48(7) of the Public Procurement Rules, 2004 (PPR 2004),instead, the petitioners filed the present Constitutional petition under Article 199 of the Constitution, alleging violation of their rights to fair process and participation in public procurement---Held: NHA had published an advertisement clearly stipulating all the requirements and terms and conditions for prequalification---The PPR, 2004 envisaged that while engaging in pre-qualification, a procuring agency could tailor the evaluation criteria while taking into consideration relevant experience and past performance; capabilities with respect to personnel, equipment, and plant; financial position; and appropriate managerial capability, along with any other factor that the procuring agency deemed relevant that was not inconsistent with the Rules---The issue revolved around the relevant clause that required prospective bidders/applicants to demonstrate satisfactory past performance, absence of contract non-performance within last 10 years along---In the present case the record reflected that petitioner, pre-qualified status was terminated by NHA due to non-performance of contract with LDA---There was no cogent material from which it could be gathered or ascertained that the procurement proceedings were marred by any procedural lapses on the part of NHA and no substantial case on merit as to arbitrariness or a contravention of the PPR, 2004 was made out so as to require remedy by way of judicial review---The bare allegation that petitioners were not afforded a proper right of audience in the matter by the NHA was also not a factor that could be agitated by the petitioners in writ jurisdiction---On the contrary, keeping in view the scope of the project and the time sensitive nature of the works to be procured, any undue interference would have hampered if not crippled the ongoing procurement proceedings---Since the petitioners did not avail the adequate remedy of appeal provided under R.48(7) of the Public Procurement Rules 2004, the Constitutional petition was not maintainable and same was dismissed, in circumstances.

(b) Constitution of Pakistan ---

----Art.199---Public Procurement Rules, 2004, Rr.48 & 48(7)---Constitutional petition, maintainability of---Constitutional jurisdiction of the High Court---Adequate remedy of appeal, non-availing of---Effect---Pre-qualification for award of contract, application for---Disqualification on the ground of non-compliance with pre-qualification requirements---Remedy of appeal provided before Public Procurement Regulatory Authority (PPRA)---Scope---Against disqualification from the pre-qualification process the petitioners availed the remedy provided under Rule 48 before the 'grievance redressal committee' (GRC)---Against the decision of GRC the petitioners invoked Constitutional jurisdiction of the High Court instead of availing the remedy of appeal provided under R.48(7) of PPRA before---Validity---The GRC constituted pursuant to Rule 48 of Public Procurement R.2004 (PPR 2004)was an adequate alternate forum, where a bidder could raise his grievance with respect to any matter regarding the tender bidding process after the submission of the bid---In the present case, the petitioners having the alternate remedy of appeal under R.48(7) of PPR, 2004, after dismissal of complaint by GRC, invoked the Constitutional jurisdiction of the High Court without exhausting the alternate remedy ---The moment the petitioners entered the prequalification stage of the procurement process, they squarely fell within the ambit of R.48 of PPR, 2004---However, instead of availing the remedy within the framework of Rule 48 and adhering to the prescribed limitations, the petitioners opted to shift forums midway, and such act amounted to forum shopping, which could not be countenanced by the High Court---The petitioners approaching GRC against the impugned letter issued by NHA had elected a statutory remedy available under R.48 of PPR, 2004, hence, they could not therefore be allowed to avail remedy under constitutional jurisdiction of the High Court.

Chief Executive Officer Npgcl, Genco-III, Tps Muzafargarrah v. Khalid Umar Tariq Imran and others 2024 SCMR 518 rel.

(c) Constitution of Pakistan---

----Art.199---Invitation to tender---Terms and conditions ---Interference by High Court under Constitutional jurisdiction of the High Court---Scope---Terms and conditions stipulated in an invitation to tender are not ordinarily amenable to judicial scrutiny---The Courts have consistently refrained from interfering with such terms, recognizing the domain of contractual freedom exercised by the procuring agency---However, judicial intervention may be warranted where the impugned conditions are found to be manifestly arbitrary, discriminatory, unreasonable or vitiated by mala fides---High Court cannot interfere with the terms and conditions as prescribed in tender/contract documents unless it was established that the same were contrary to public interest---Terms of the invitation to tender cannot be opened to judicial scrutiny because the invitation to tender is in the realm of a contract, and the decision to accept the tender or award the contract is reached through a process of negotiation and deliberations through several tiers.

Suo Motu Case No. 13 of 2009 PLD 2011 SC 619 rel.

Techno Time Construction Company v. Punjab Highway Department 2014 MLD 874 and Tez Gas (Private) Limited v. Oil and Gas Development Authority PLD 2017 Lah. 111 ref.

(d) Constitution of Pakistan---

----Art.199---Constitutional jurisdiction of High Court---Scope---Adequate remedy provided under the law---Effect---Courts do not sit in appeal over the decisions of executive authorities or instrumentalities---A Constitutional Court is essentially concerned with only the lawfulness of a decision and not its soundness---As such, while allegations of illegality, irrationality and procedural impropriety would constitute grounds for a Court to assume jurisdiction, it would only be the decision making process that would come under inquiry and that would not ordinarily mean that the aggrieved person can bypass the adjudicatory process prescribed under the laws---It ought to be demonstrated for purpose of resort to the writ jurisdiction.

Badar Expo Solutions thorugh Magaging Director v. Federation of Pakistan through Chief Executive Trade and Development Authority of Pakistan and 12 others PLD 2022 Sindh 33 and Jagdish Mandal v. The State of Orissa 2007 14 SCC 517 ref.

(e) Remedy---

----Doctrine of election---Scope---Once an aggrieved person chooses orelect a forum amongst the available remedies under any law then he cannot resort to other available remedy midway.

Chief Executive Officer Npgcl, Genco-III, Tps Muzafargarrah v. Khalid Umar Tariq Imran and others 2024 SCMR 518 rel.

Waseem Sajjad, Advocate Supreme Court, Idrees Ashraf, Raja Muhammad Ali and Barrister Mahrukh for Petitioners.

Barrister Asghar Khan and Atif Waheed along with Abdul Rehman, Director (P&CA) and Asad Rehman, AD Legal NHA for Respondents. Nos. 1 and 2.

Research Assistance by Muhammad Fahad Khattak.

Date of hearing: 22nd May, 2025.

Judgment

Inaam Ameen Minhas, J.---Through the instant writ petition, the petitioners have assailed the letter dated 27.03.2025 ("Impugned Letter") issued by the respondent No.1 i.e. National Highway Authority ("NHA"), whereby the petitioners were informed regarding their disqualification from the bidding process.

1. Brief facts are that the petitioners, comprising M/s Ch. A. Latif and Sons (Pvt.) Limited, M/s Maqbool Associates (Pvt.) Limited, and M/s Shaanxi Water Resources and Hydropower Engineering Group Company Limited, formed an unincorporated Joint Venture for participation in the "Dualization and Rehabilitation of Karachi-Quetta-Chaman Road (N-25)" project, as advertised on 11.08.2024 by the NHA, a statutory body responsible for national highways in Pakistan. The petitioners submitted a comprehensive application for pre-qualification for all project sections and were pre-qualified for multiple sections by letter dated 29.11.2024 issued by NHA. Subsequently, all prequalified bidders including present petitioners were invited to submit financial bids on 23.04.2025 as final bid submission date. However, the petitioners were abruptly disqualified vide the Impugned Letter dated 27.03.2025 on the grounds of alleged non-compliance with prequalification requirements upon re-evaluation of the petitioners documents under clause 2.1 of Section-III of the Pre-Qualification Documents ("PQD"), specifically referring to non-performance of a contract with the Lahore Development Authority ("LDA"). The petitioners challenged the Impugned Letter by filing a complaint before the Grievance Redressal Committee ("GRC") on 11.04.2025, and the same was dismissed on 14.04.2025 as time barred. Being aggrieved of the Impugned Letter, the petitioners have invoked constitutional jurisdiction of this Court in the instant petition.

2. The learned counsel for the petitioners contended that the abrupt disqualification of the petitioners, without affording an opportunity of being heard is a violation of Article 10-A of the Constitution of Islamic Republic of Pakistan, 1973 ("Constitution"), which guarantees the right to a fair process, and offends the principles of natural justice; that the unilateral action of the NHA, taken without notice or substantiated evidence is arbitrary, discriminatory, and in breach of Articles 14, 18, and 25 of the Constitution, thereby unlawfully obstructing the petitioners' right to participate in public procurement and tarnishing its professional reputation.

3. The learned counsel for the petitioners further contended that the disqualification was based on a factually incorrect assumption of alleged non-performance in relation to Orange Line Metro Train Project (Package II), whereby LDA terminated the contract of petitioner No.1 on account of alleged unsatisfactory performance; that the said matter is sub-judice before the arbitrators and yet to be decided hence the claim of NHA is unsupported by any cogent evidence, and thus contravenes Rule 18 of the Public Procurement Rules, 2004, ("PPR, 2004") as well as settled jurisprudence requiring fairness and transparency in public procurement; that the public authorities are required to act fairly and transparently in matters of public procurement, whereas the actions of NHA are unilateral and violate the requirement of good governance and public trust, and against section 24-A of General Clauses Act, 1897.

4. The learned counsel for the petitioners also contended that the Impugned Letter is explicitly illegal and without jurisdiction, procedurally flawed, and timed to exclude the petitioners from the tender process without legal basis or due process, especially as the technical evaluation phase had already been cleared. The learned counsel also submits that the statutory grievance redressal mechanism under Rule 48 of the PPR, 2004 is inapplicable, as it was excluded from the bidding process prior to submission of a financial bid, leaving it without an adequate alternate remedy and such disqualification being unlawful the Impugned Letter is liable to be set aside and the petitioners' prequalification status may be reinstated.

5. Conversely, the learned counsel for respondents/NHA contended that the instant petition does not fulfil the conditions precedent for invoking the constitutional jurisdiction of this Court under Article 199 of the Constitution, wherein it is expressly provided that the High Court shall not exercise its jurisdiction where an adequate and efficacious remedy is available under the law, whereas in the present case, the petitioners had and continue to have, an adequate and efficacious statutory remedy available under Rule 48 of the PPR, 2004; that the petitioners voluntarily approached the GRC under the PPR, 2004 framework but they did not file any appeal against the dismissal of their complaint, therefore, the petitioners are estopped from bypassing the appellate remedy making this petition not maintainable and liable to be dismissed. It was further asserted that the instant petition has become infructuous as an extended deadline for financial bid submission was 23.04.2025, and financial bids were opened at 11:30 am on the same day in the presence of the bidders as communicated by the NHA to all the participating bidders beforehand, hence, the financial proposals have been disclosed to the public prior to the issuance of interim injunction, which was granted ex-parte on 23.04.2025 after the opening of the financial bids.

6. The learned counsel for NHA further contended that the petitioners have approached this Court with unclean hands, having deliberately and wilfully failed to pursue the appropriate legal remedies within the statutory time limits as the Impugned Letter is dated 27.03.2025 and the petitioners, by their own admission, had knowledge of the disqualification on the very same day. Despite having such knowledge, the petitioners failed to file a timely complaint before the GRC within the prescribed period and did not file an appeal before the PPRA under Rule 48 (7) of the PPR, 2004, instead, the petitioners filed the instant petition a day before final submission of financial bids and failed to exhaust all available remedies.

7. The learned counsel for NHA also contended that the petition involves disputed questions of fact such as the petitioners' alleged non-performance in previous projects, contract termination, a pending NAB reference and misstatements in the forms under clause 2.1 of Section-III of the prequalification documents which fall outside the limited scope of Article 199 and the petitioners have approached this Court with unclean hands by concealing material facts, including a terminated contract by LDA and ongoing NAB proceedings, thereby disentitling them to equitable relief and allowing the instant petition would compromise the integrity of the procurement process and appears to be a mala fide attempt to delay the project; that pre-qualification does not confer any vested right and may be re-evaluated at any time under the applicable rules. Lastly, the learned counsel for NHA prayed for dismissal of the instant petition not being maintainable.

8. I have heard the contentions of the learned counsel for the parties and perused the record with their able assistance.

9. As narrated in the facts that NHA had published an advertisement on 11.08.2024 clearly stipulating all the requirements and terms and conditions for prequalification in PQD. The PPR, 2004 envisages that while engaging in pre-qualification, a procuring agency may tailor the evaluation criteria while taking into consideration relevant experience and past performance; capabilities with respect to personnel, equipment, and plant; financial position; and appropriate managerial capability, along with any other factor that the procuring agency may deem relevant that is not inconsistent with the Rules. The issue revolves around clause 2.1 of PQD that requires prospective bidders/applicants to demonstrate satisfactory past performance, absence of contract non-performance within last 10 years along with Form CON-2. The relevant clause is reproduced as under:-

| | | | | | | --- | --- | --- | --- | --- | | Eligibility and Qualification Criteria | | | Documentation | | | Sr.No. | Subject | Requirement | Joint Venture (Each Party) | Submission Requirements | | 2.1 | Performance of the applicant and history of Nonperforming contracts | Non-performance of a contract did not occur within the last 10 years prior to the deadline for application/ proposal submission based on all information. Past or present performance of the applicant as contractor (individual or all partners of a JV) is satisfactory with NHA or any other executing agency and the Applicant has not been blacklisted by any government agency/authority/ organization. Applicant shall provide an undertaking on the Applicant's letter head that the company is not blacklisted by any government agency/ authority/ organization. Detail of litigation pending (if any) be also provided (Form CON-2). The Employer shall also evaluate the performance of the applicant against its completed and ongoing project with the recommendations of Regional/ Maintenance wing of NHA. NHA may disqualify the applicants to whom a slow progress notice has been issued. | Must meet | Form CON-2 |

1. In pursuance of the particulars mentioned above the record reflects that eligible parties were invited to submit their proposals for prequalification for the award of the contract. In response the petitioners submitted their pre-qualification documents. Subsequently, the petitioners were pre-qualified for multiple sections of the project. However, the petitioners pre-qualified status was terminated by NHA due to non-performance of contract with LDA. It is observed that the petitioners initially opted for statutory remedy by approaching the GRC by filing a complaint under Rule 48 of PPR, 2004, prior to filing the instant petition. However, the complaint before the GRC was dismissed on the ground of being time-barred. Subsequently, the petitioners did not avail the statutory remedy of appeal under Rule 48(7) before the relevant forum, i.e. Public Procurement Regulatory Authority ("PPRA"), rather the petitioners have now invoked the constitutional jurisdiction of this Court, challenging the Impugned Letter issued by NHA instead of the decision of GRC dated 14.04.2025.

2. The PPR, 2004 provides a complete mechanism for redressal of grievance of an aggrieved person. Rule 48 of the PPR, 2004 provides that the procuring agency shall constitute a committee comprising of odd number of persons, with proper powers and authorizations, to address complaints of bidders that may occur prior to the entry into force of the procurement contract. Sub-Rule (2) further provides that any bidder feeling aggrieved by any act of the procuring agency after submission of bid may lodge a complaint concerning his grievances. It has been further provided that if the bidder is not satisfied with the decision of the committee, the bidder may file an appeal within thirty (30) days of the decision of GRC under Rule 48(7) of PPR, 2004 before PPRA. For purpose of clarity Rule 48 of PPR, 2004 is reproduced as under:-

"48. Redressal of grievances by the procuring agency:-

(1) The procuring agency shall constitute a committee comprising of odd number of persons, with necessary powers and authorizations, to address the complaints of bidders that may occur prior to the entry into force of the procurement contract.

(2) Any party may file its written complaint against the eligibility parameters, evaluation criteria or any other terms and conditions prescribed in the bidding documents if found contrary to the provisions of the procurement regulatory framework, and the same shall be addressed by the grievance redressal committee (GRC) well before the proposal submission deadline.

(3) Any bidder feeling aggrieved by any act of the procuring agency after the submission of his bid may lodge a written complaint concerning his grievances within seven days of announcement of the technical evaluation report and five days after issuance of final evaluation report.

(4) In case, the complaint is filed against the technical evaluation report, the GRC shall suspend the procurement proceedings.

(5) In case, the complaint is filed after the issuance of the final evaluation report, the complainant cannot raise any objection on technical evaluation of the report:

Provided that the complainant may raise the objection on any part of the final evaluation report in case where single stage single envelope bidding procedure is adopted.]

(6) The GRC shall investigate and decide upon the complaint within ten days of its receipt.

(7) Any bidder or party not satisfied with the decision of the GRC, may file an appeal before the Authority within thirty days of communication of the decision subject to depositing the prescribed fee and in accordance with the procedure issued by the Authority. The decision of the Authority shall be considered as final".

1. The GRC constituted pursuant to Rule 48 of PPR, 2004, is an adequate alternate forum, where a bidder can raise his grievance with respect to any matter regarding the tender bidding process after the submission of the bid. In the case at hand, the petitioners having the alternate remedy of appeal under Rule 48(7) of PPR, 2004, after dismissal of complaint by GRC, has invoked the constitutional jurisdiction of this Court without exhausting the alternate remedy. The scope of judicial review in matters of public procurement has been expounded in a number of cases by superior Courts, and it is well settled that Courts do not sit in appeal over the decisions of executive authorities or instrumentalities. A constitutional Court is essentially concerned with only the lawfulness of a decision and not its soundness. As such, while allegations of illegality, irrationality and procedural impropriety would constitute grounds for a Court to assume jurisdiction, it would only be the decision making process that would come under inquiry and that does not ordinarily mean that the aggrieved person can bypass the adjudicatory process prescribed under the laws. It ought to be demonstrated for purpose of resort to the writ jurisdiction. Reliance is placed on Badar Expo Solutions through Managing Director v. Federation of Pakistan through Chief Executive Trade and Development Authority of Pakistan and 12 others (PLD 2022 Sindh 33). An observation in this regard was made by the Supreme Court of India in the case reported as Jagdish Mandal v. State of Orissa (2007) 14 SCC 517, as follows:-

"Judicial review of administrative action is intended to prevent arbitrariness, irrationality, unreasonableness, bias and mala fides. Its purpose is to check whether choice or decision is made 'lawfully' and not to check whether choice or decision is 'sound'. When the power of judicial review is invoked in matters relating to tenders or award of contracts, certain special features should be borne in mind. A contract is a commercial transaction. Evaluating tenders and awarding contracts are essentially commercial functions. Principles of equity and natural justice stay at a distance. If the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out. The power of judicial review will not be permitted to be invoked to protect private interest at the cost of public interest, or to decide contractual disputes. The tenderer or contractor with a grievance can always seek damages in a civil court. Attempts by unsuccessful tenderers with imaginary grievances, wounded pride and business rivalry, to make mountains out of molehills of some technical/ procedural violation or some prejudice to self, and persuade courts to interfere by exercising power of judicial review, should be resisted. Such interferences, either interim or final, may hold up public works for years, or delay relief and succour to thousands and millions and may increase the project cost manifold. Therefore, a court before interfering in tender or contractual matters in exercise of power of judicial review, should pose to itself the following questions :

i) Whether the process adopted or decision made by the authority is mala fide or intended to favour someone.

OR Whether the process adopted or decision made is so arbitrary and irrational that the court can say : 'the decision is such that no responsible authority acting reasonably and in accordance with relevant law could have reached.'

ii) Whether public interest is affected.

If the answers are in the negative, there should be no interference under Article 226."

1. It is a well-settled principle of law that the terms and conditions stipulated in an invitation to tender are not ordinarily amenable to judicial scrutiny. The Courts have consistently refrained from interfering with such terms, recognizing the domain of contractual freedom exercised by the procuring agency. However, judicial intervention may be warranted where the impugned conditions are found to be manifestly arbitrary, discriminatory, unreasonable or vitiated by mala fides. In this regard, reference may be made to the following precedents; in the case of Techno Time Construction Company v. Punjab Highway Department (2014 MLD 874), wherein it was held that the High Court cannot interfere with the terms and conditions as prescribed in Tender/Contract documents unless it was established that the same were contrary to public interest; in the case of TEZ Gas (Private) Limited v. Oil and Gas Development Authority (PLD 2017 Lahore 111), wherein it was held that the terms of the invitation to tender cannot be opened to judicial scrutiny because the invitation to tender is in the realm of a contract, and the decision to accept the tender or award the contract is reached through a process of negotiation and deliberations through several tiers. Moreover, such decisions are made qualitatively by experts and the government is free to settle the terms of the contract with the parties. In such cases, if the terms and conditions of the contract are not suited to a party, they need not to participate in the tender process or accept the contract. However, if they choose to participate, they are bound by the terms offered to them. Moreover, the Honourable Supreme Court in Suo Motu Case No.13 of 2009, PLD 2011 SC 619 held that in such matters the exercise of judicial oversight is intended to prevent arbitrariness or favouritism, with public interest as the paramount consideration. It was further observed that the basic test in such regard is to see whether there was any infirmity in the decision making process and interference in such a process is warranted where it appears to be predicated upon arbitrariness, illegality, irrationality, procedural impropriety and/or actuated by mala fides.

2. As far as the argument advanced by the learned counsel for the petitioners that Rule 48 is inapplicable on the ground that the petitioners cannot be considered 'bidder(s)' due to their disqualification prior to the submission of the financial bid is misconceived and untenable. It is pertinent to observe that the petitioners, having initially invoked the alternate remedy by assailing the Impugned Letter before the GRC and subsequently abandoning the same upon dismissal of their application, now seeks to reagitate the very same grievance in writ jurisdiction on the pretext of not being a bidder is not only devoid of merit but also not a valid justification for bypassing the alternate remedy. The moment the petitioners entered the prequalification stage of the procurement process, they squarely fell within the ambit of Rule 48 of PPR, 2004. However, instead of availing the remedy within the framework of Rule 48 and adhering to the prescribed limitations, the petitioners opted to shift forums midway, and such act amounts to forum shopping, which cannot be countenanced by this Court. The petitioners' conduct reflects a deliberate attempt to circumvent the statutory procedure, and such misuse of the process of law is impermissible.

2025 Y L R 2396

[Islamabad]

Before Mohsin Akhtar Kayani, J

Abdur-Rauf

and 10 others---Appellants

Versus

Land Acquisition Collector, Islamabad and 8 others---Respondents

Regular First Appeal No. 571 of 2021, decided on 20th November, 2024.

Land Acquisition Act (I of 1894)---

----S.4---Civil Procedure Code (V of 1908), S.9---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Maintainability---Acquisition proceedings---Civil Court, jurisdiction of---Appellants/landowners were aggrieved of issuance of notice under S.4 of Land Acquisition Act, 1894 and had assailed the proceedings before Civil Court but the suit was dismissed---Validity---Mere initiation of acquisition process does not affect rights of landowners, who can exercise jurisdiction to challenge those proceedings, unless any right has been accrued in favour of beneficiary---Mere issuance of notice in terms of S.4 of Land Acquisition Act, 1894 does not create any right or interest in favour of beneficiary---Determination of public notice did not fall within the domain of Civil Court through civil suit in terms of S.9, C.P.C., which ousted jurisdiction of Civil Court regarding those matters which had been either expressly or impliedly barred in any other law and statute---Provisions of Land Acquisition Act, 1894 covers within the ouster jurisdiction concept in terms of S.9, C.P.C.---Trial Court rightly rendered the view that appellants/ landowners could have recourse to provisions of Land Acquisition Act, 1894 which was within four corners of law and the suit was not maintainable---Legislative intent is clear from the wording of Land Acquisition Act, 1894 which has not provided any pre-determination remedy prior to passing of any award to challenge the proceedings before Civil Court of competent jurisdiction---When specific process and procedure had been provided, such procedure had to be applied in strict sense---Appeal was dismissed, in circumstances.

Federal Government Employees Housing Foundation (FGEHF), Islamabad v. Malik Ghulam Mustafa 2021 SCMR 201; The Land Acquisition Collector, Pak-Arab Refinery Limited v. Khan (deceased) 2019 MLD 968; Hamid Husain v. Government of West Pakistan 1974 SCMR 356; Gul Shah v. Hafiz Ghulam Muhammad 2009 SCMR 1058; Samiullah v. Fazle Malik PLD 1996 SC 827; Haji Abdul Mateen Akhundzada v. District Coordination Officer/Deputy Commissioner, Quetta PLD 2012 Bal. 154 and Khalid M. Ishaque v. Chief Justice and the Judges of the High Court of West Pakistan, Lahore PLD 1996 Sc 628 rel.

Adil Aziz Qazi for Appellants.

Muhammad Taimoor Janjua, State Counsel for Respondent No. 1.

Usman Jillani for Respondent NO. 2.

Respondents Nos. 3 to 9 ex-parte.

Judgment

Mohsin Akhtar Kayani, J.---Through the instant appeal, the appellants have assailed the judgment and decree dated 29.06.2021, passed by learned Senior Civil Judge-III (East), Islamabad, whereby suit for declaration and permanent injunction has been dismissed.

1. Brief facts referred in the instant appeal are that appellants filed suit for declaration and permanent injunction alleging therein that they are owners in possession of land measuring 23 Kanal 06 Marlas out of total land measuring 49 Kanal 13 Marlas bearing Khasra Nos. 1688 to 1707 and 2627, situated in Revenue Estate of Village Sihala, Tehsil and District, Islamabad, whereby respondent No.1, Land Acquisition Collector vide Notification dated 27.06.2007 initiated the proceedings of acquisition through public notice and thereafter issued a notice to the appellants under Section 9 of the Land Acquisition Act, 1894 to appear before him on 08.01.2010 for further proceedings. As per stance of the appellants, they are aggrieved with the entire acquisition, which has not yet been concluded nor any award has been passed on the following grounds:-

That Land Acquisition Act, 1894 is not applicable for the purpose of acquisition within the specified area of Islamabad Capital Territory. The land situated within the limit of Islamabad Capital Territory can be acquired under only Capital Development Ordinance, 1960. The land of the applicants is situated in the area of village Sihala, Islamabad Capital Territory. The notification issued under Sections 4 and 9 of the Land Acquisition Act 1894 are illegal, against the facts and liable to be set aside.

That it is the matter of record that suit land proposed to be acquired is commercial as well as residential and the same is thickly populated area. There are shops and plazas constructed on the suit land and the market value of the suit land is almost Rs. 600,000/- per marlas as it is situated on the front of Kahuta Road. The suit land is no more agricultural and it cannot be acquired as proposed by defendant No.1.

That the notification under section 4 of Land Acquisition Act, 1894 was issued on 27.06.2007 and the defendant No.1 cannot continue the proceedings of acquisition as the same has become time barred, it is mandatory provision of law that defendant No.1 should have completed the proceedings of acquisition within 1 year of the notification under section 4 of the Land Acquisition Act.

That it has came to the knowledge of the plaintiff that almost half of the land out of total land measuring 49 Kanal 13 marlas which has been proposed for acquisition under notification dated 27.06.2007 has been purchased by KLR through private negotiation and bargain with the owners. This facts also shows that suit land cannot be acquired under Land Acquisition Act.

That the suit land have not being acquired for any public purpose.

1. The suit has been contested by the respondents, who filed their separate written statement and raised question of maintainability of the suit on the ground that Civil Works Organization/respondent No.2 has status of organization for defence, purposes. It has also been highlighted by respondent No.2 in the written statement that land measuring 29 Kanal 09 Marlas was acquired and directly purchased from the owners and said land was exempted from the acquisition process. It has further been referred in the written statement that in terms of Land Acquisition Act, 1894, it is applicable to entire Pakistan without exemption of Islamabad Capital territory. It was further referred that appellants have every right to raise objections if any before Land Acquisition Collector under Land Acquisition Act, 1894 subject to fulfillment of requirement.

2. The trial Court while considering the pro and contra arguments of the parties dismissed the suit on the following grounds:-

Keeping in view the above since the Land Acquisition Act, 1894 had been made applicable to the Islamabad Capital Territory and in view of Section 5 read with fourth schedule of the Federal Laws, (revision and declaration) Ordinance 1981 which had amended the Land Acquisition Act in its application to the Islamabad Capital Territory which Act provides compensation to be determined by the collector. The said Act aims to provide procedure for compulsory acquisition of privately owned land required for public purposes ses and companies and for such mode and manner of determination of compensation to be awarded to the lawful owner of the acquired property through a specific mechanism for redressal of grievances of persons interested in the land being compulsorily required are provided. The plaintiffs being the land owners can recourse to the provisions of the Land Acquisition Act, 1894 and the suit before this court is barred by law.

1. In the initial round of proceedings, the trial Court has framed the preliminary issue "Whether the Land Acquisition Act 1894 was not applicable in Islamabad Capital Territory, hence, the notification issued under sections 4 and 9 of Land Acquisition Act 1894 are illegal, vide ab-initio, without any authority and liable to be cancelled? OPP. However, such aspect has been adjudicated finally up to the Supreme Court of Pakistan in judgment reported as 2021 SCMR 201 (Federal Government Employees Housing Foundation (FGEHF), Islamabad v. Malik Ghulam Mustafa) with the following observations:-

Hence, the conclusion of the learned bench in para 23 of the impugned judgment cannot be sustained, as the CDAO, 1960 neither contains an overriding nor a non-obstante clause that may nudge out LAA, 1894 from its applicability in ICT. Having examined both the enactments, we are also of the view that CDAO, 1960 is purpose specific law that caters to the requirement of planning and development of the new capital of Pakistan and such kind of enactment provides a complete mechanism in itself, which is a self-contained enactment, having no dependency for the acquisition of land on the LAA, 1894, unlike similar statutes catering for planning and development of major and developing cities as discussed in succeeding paragraph 66.

No arguments strong enough have been put forth to show that the CDAO, 1960 could override the provisions of the LAA, 1894. In absence of overriding or superseding or 'non-obstante provision within the CDAO, 1960, we see no reason strong enough as to why the CDAO, 1960 should override the provisions of the LAA, 1894 as held by the learned Bench in the impugned judgment. In conclusion, as stated above, the legislations are merely overlapping and there appears to be no conflict between both the statutes. There is no apparent reason as to why these statutes cannot exist coextensively as each of them caters to a different object and purpose.

ii. Construing the words of the CDAO, 1960 in their natural, ordinary, or popular meaning.

1. In the light of above decision of the Supreme Court of Pakistan, the matter was again remanded to the trial Court, whereby plaint has been rejected through the impugned order.

2. Arguments heard and record perused.

3. Perusal of record reflects that appellants are owners in possession of land measuring 23 Kanal 06 Marlas out of total land measuring 49 Kanal 13 Marlas bearing Khasra Nos. 1688 to 1707 and 2627, situated in Revenue Estate of Village Sihala, Tehsil and District, Islamabad as referred in para-01 of the plaint. The Land Acquisition Collector, Islamabad under Section 4 of the Land Acquisition Act 1894 has published notification dated 27.06.2007 for 49 Kanals 13 Marlas of total land and another notification for acquisition process was issued on 30.05.2009, however, land measuring 29 Kanals 09 Marlas was directly purchased by respondent No.2, hence total land measuring 20 Kanals 04 Marlas situated in Mouza Sihala, Islamabad is required for acquisition process by CWO. In terms of Section 9 of the Land Acquisition Act, 1894, notice was issued on 08.01.2010 by the Chief Commissioner and fixed the rate Rs.20 lac per Kanal, whereby CWO deposited payment Rs.43,642,500/- on 03.10.2011 through cross cheque in the account of LC, therefore, the required land for acquisition process is 18 Kanal and 19-1/5 Marlas. As per Section 17(4) of The Land Acquisition Act, 1894, notices were given to the appellants on 02.05.2007 and as per stance of the appellants, they have challenged the entire initiation of acquisition proceedings carried out against their own land.

4. I have confronted the appellants' counsel as to whether such phenomena is available in terms of Section 42 of the Specific Relief Act, 1877, especially when the acquisition process has not yet been completed, even no award has been issued till date to confer the rights of the respondents and the entire lis is premature in this regard, however no justiciable answer has been given, therefore, this Court only confines itself to the legal question with reference maintainability of the suit. The Land Acquisition Act, 1894 is applicable to whole Pakistan and provides a complete mechanism of acquisition proceedings by way of preliminary investigation through a notification highlighting the need of land for public purpose, then objections could be invited and declaration be given that land is required for public purpose. The Land Acquisition Collector shall measure the land after its identification and marketing and plan the execution process, whereafter notices will be issued in terms of Section 9 to the interested person, who could have been directed to record their names and statements highlighting their interest. In terms of Section 11 after conclusion of enquiry, award shall be announced by the Collector. In the process of acquisition, the private negotiations have also been acknowledged. The Collector has been given vast powers to conclude the award finally while considering the market value and potentiality of the land, even special powers in cases of urgency have been provided in Section 17 to the Collector. Section 18 of the Land Acquisition Act, 1894 also provides a mechanism qua filing of Reference to the Court against acquisition, whereby Court shall determine the additional compensation, enhancement of compensation and other related issues.

5. From the reading of entire Act, it reveals that it provides a remedy of Section 18 against the conclusion of award, whereby any person interested, who has not accepted the award may, by written application to the Collector, require that the matter be referred by the Collector for the determination of the Court, whether his objection be to the measurement of the land, the amount of the compensation, the person to whom it is payable or the apportionment of the compensation among the persons interested. This aspect may also be taken with reference to the provision of Section 5A of the Act, which is as under:-

5-A. Hearing of objections.-(1) Any person interested in any land which has been notified under section 5 as being needed for a public purpose or for a Company may within thirty days after the issue of the notification, object to the acquisition of the land or of any land in the locality, as the case may be.

(2) Every objection under sub-section (1) shall be made to the Collector in writing, and the Collector shall give the objector an opportunity of being heard either in person or by pleader and shall, after hearing all such objections and after making such further inquiry, if any, as he thinks necessary, the record of the proceedings held by him and a report containing his recommendations on the objections. The decision of the Commissioner or the objections shall be final.

(3) When land is needed for a Company, the Collector shall, after making such enquiries as he deems necessary, also make his recommendations to the Commissioner with regard to the area that in his opinion is reasonable for the purpose.

(4) For the purpose of this section, a person shall be deemed to be interested in land who would be entitled to claim an interest in compensation if the land were acquired under this Act.

1. The above referred provision extends every right to interested person to object the need for public purpose as claimed by the land acquisition authority against any land, all such objections should be settled accordingly prior to the award. This aspect reflects that all procedures have been provided to deal with the acquisition process as well as award if given after the end of the proceedings. Even Section 18(1) of the Act does not authorize or permit or provide for a person aggrieved, to make an application directly to the Civil Court; and the Trial Court had no jurisdiction whatsoever to decide the points arising in the application, therefore, the proceedings of the Senior Civil Judge were void ab initio as held in 2019 MLD 968 (The Land Acquisition Collector, Pak-Arab Refinery Limited v. Khan (deceased).

2. Learned counsel for the appellants has argued that respondent No.2/Organization is only protecting their commercial interest and they will raise construction on the proposed land for commercial purpose, in which they have also purchased the land directly from the land owners such aspect outrightly disclosed the denial of public purpose as claimed by the respondent and if this question could not be determined unless acquisition process has been completed in accordance with law and the remedy provided under Land Acquisition Act if exercised by the interested or aggrieved person will determine these questions finally.

3. Now question arises as to whether mere initiation of acquisition process, effect the rights of appellants, who can exercise the jurisdiction to challenge those proceedings, the answer is in negative unless any right has been accrued in favour of respondents. Mere issuance of notice in terms of Section 4 of the Act does not create any right or interest in favour of the beneficiary. Similarly, the determination of public notice does not fall within the domain of Civil Court through civil suit in terms of Section 9 of the C.P.C 1908. which oust the jurisdiction of the Civil Court regarding those matters, which are either expressly or impliedly barred in any other law and statute. The Land Acquisition Act, 1894 covers within the ouster jurisdiction concept in terms of Section 9 of C.P.C.

2025 Y L R 33

[Sindh]

Before Muhammad Faisal Kamal Alam, J

Delhi Mercantile Muslim Cooperative Housing society limited through chairman---Applicant

Versus

Muhammad Javed and others---Respondents

Civil Revision Application No. 222 of 1993, decided on 30th May, 2024.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Karachi Development Authority Order (V of 1957), Art. 52-A [as amended by Karachi Development Authority (Sindh Amendment) Act, 1994]---Suit for declaration and injunction---Amenity plot---Nature, changing of---Applicant / defendant was a Cooperative Society which had established family park over an amenity plot---Respondents / plaintiffs claimed to be the allottees of suit land after nature of suit land was converted from amenity to residential---Judgment and decree passed by Trial Court in favour of respondents / plaintiffs was maintained by Lower Appellate Court---Validity---Amendments in Art.52-A of Karachi Development Authority Order, 1957 were applicable, because conversion permission granted by the Authorities was of subsequent date---Conversion and sub-division of suit land was illegal from its inception---Authorities illegally converted land use, from amenity to residential, coupled with the fact that no construction was ever raised on suit land by respondents / plaintiffs---By operation of law when suit land was reverted to respondent / Society, thereafter it was allotted to applicant / Society---Applicant/ Society restored its original amenity purpose and suit land was utilized as family park for the residents of the vicinity---When suit was filed by respondents / plaintiffs, it was not maintainable---High Court set aside both the decisions passed by two Courts below and suit filed by respondents / plaintiff was dismissed---Revision was allowed accordingly.

Irshad Ahmed Siddiqui and others v. Karachi Municipal Corporation (K.D.A. Wing), Karachi and others PLD 2021 Sindh 312; Samit Ali Khan v. Dr. Mrs. Zainab Irshad and 6 others PLD 1997 Karachi 450 and Abdul Razak v. Karachi Building Control Authority and others PLD 1994 SC 512 ref.

Muhammad Ali Ghanghro for Applicant.

Nemo. for Respondents.

Dates of hearing: 29th February, 25th March and 23rd April, 2024.

Judgment

Muhammad Faisal Kamal Alam, J.---The Applicant-Society has challenged the Judgment and Decree of the learned Trial Court handed down in Suit Number 2127 of 1980, filed by present Respondents Numbers 1 to 4 (the private Respondents) which is maintained by the learned Appellate Court. The subject matter of this proceeding is an amenity Plot No.SNPA-9, measuring 17146 Square Yards, in Block 3, of Karachi Cooperative Housing Societies Union-the Respondent No.5, viz. the "Suit Land".

1. As per the averment of the present Revision Application, the Suit Land has been developed into a Park and a portion whereof is utilized to construct a Mosque; the Suit Land is known as "CHILDREN PARK", which is being used by the residents of the locality for relaxation and recreation.

2. Mr. Muhammad Ali Ghanghro, learned counsel for the Applicant, has argued, that both Courts have erred in deciding the case in favour of Respondents, inter alia, by overlooking the provisions of law and the case law, in particular, relating to conversion of an amenity plot into a residential one. Narrated the history of the Suit Land that earlier it was falling in the territorial jurisdiction of Respondent Number 5-Karachi Cooperative Housing Societies Union Ltd. Subsequently, it was allotted to Respondent Number 6-Al-Riaz Cooperative Housing Society Limited, which then allotted it to the Respondents Nos. 1 to 4 [Plaintiffs], the present Private Respondents, vide Correspondence Dated 4th February 1979, produced in the evidence as Exhibit 13 [ per Paragraph-3 of the Plaint of the above Respondents]. Contended that the allotment is void ab initio because on 13th October 1977, vide Martial Law Order [MLO] No. 34, allotment of the amenity plots were cancelled which were to be resumed by the Authority in which the plots initially vested; this has been mentioned in the Public Notice published in various Newspapers including daily Dawn dated 31.01.1978, which was exhibited in evidence as Exhibit-74. The private Respondents misrepresented before the Respondent No.7 [the Federal Government, Ministry of Housing and Works], when they sought permission for conversion of this plot from industrial to residential [this Letter is at page-207 of the File, produced by the Private Respondents in the evidence]. Surprisingly, the latter, that is, Respondent No.7 without any probe or inquiry, accorded approval dated 31.05.1979 [at page-211 of the File], whereby, change of use of the Suit Land from amenity to residential was granted, besides, sub-division into five plots was also permitted. Another development took place, when the Respondent No.5- Karachi Cooperative Housing Societies Union Limited, allotted the Suit Land and delivered its possession to the Applicant for developing and maintaining a public park, which was in conformity to its original land use, which is accordingly done by the Applicant. Argued that the permission to change the land use granted by Respondent No.7 was in sheer violation of KDA Order, 1957, which is applicable to the present controversy; has traced out the statutory history of the amendments made in the KDA Order, in particular in Sections 52 and 52-A, imposing a bar for converting the land use of an amenity plot; referred to the Site Inspection Report [available in the record], to confirm that the Suit Land is being used as a Park as stated above. In support of his arguments, learned counsel has cited the following Case Law_

i. PLD 2021 Sindh 312

[Irshad Ahmed Siddiqui and others v. Karachi Municipal Corporation (K.D.A. Wing), Karachi and others];

ii. PLD 1997 Karachi 450

[Samit Ali Khan v. Dr. Mrs. Zainab Irshad and 6 others] - Samit Case;

iii. PLD 1994 SC 512

[Abdul Razak v. Karachi Building Control Authority and others];

1. Private Respondents have filed the Counter Affidavit to the Injunction Application [preferred by the Applicant], vehemently disputing the stance of the Applicant, while opposing this Revision Application and supporting the two impugned Decisions. However, they chose to remain absent during hearings.

2. Arguments heard and record perused.

3. From the pleadings of the parties, following issues were framed by the learned Trial Court_

1. Whether the suit as framed is maintainable?

2. Whether the suit is not undervalued?

3. Whether the suit is barred under section 70, 70-A and 54 of the Cooperative Societies Act?

4. Whether the suit is barred under Articles 270-A of the Constitution of Islamic Republic of Pakistan?

5. Whether the provisions of MLO 34 [as amended by MLO 89] are applicable to the suit plots of the Plaintiffs? If so its effect?

6. Whether the suit plot has been legally converted by the competent authority into a residential plot by the order dated 31.5.1979?

7. Whether the orders dated 25.2.1989 passed by the defendant No.1 and all other subsequent orders in respect of Plot No. SNPA-9 are mala fide, without jurisdiction and lawful authority, illegal, null and void and no legal effect?

8. Whether the allotment of the subject plots by defendant No.3 in favour of plaintiffs is illegal and inoperative?

1. What should the decree be?

2. The private Respondents as Plaintiffs have filed the above Suit, inter alia, challenging the Order dated 25.02.1980, passed by Respondent No. 5 [KCHSUL], for allotment of Suit Land to the Applicant-Society as an amenity plot, and for declaration that the same had been converted vide Order dated 31-05-1979 [to residential] by the Respondent No.7 .

The Suit was contested by the present Applicant and Respondent No.5-Karachi Cooperative Housing Societies Union Limited and Respondent No.6-Al-Riaz Cooperative Housing Society Limited, on whose behalf Written Statements were filed. Even the latter [Al-Riaz Cooperative Housing Society Limited], which had allotted the Suit Land to the private Respondents, opposed the Suit filed by them and admitted the fact that the Suit Land was an amenity plot, was later converted into residential [Paragraph-1 of the Written Statement at Page-113 of R and P of Suit No.2127 of 1980].

1. After framing of Issues, evidence was led.

2. Mr. Muhammad Shahid Ali, one of the private Respondents [present Respondent No.4] had led the evidence on behalf of Plaintiffs; whereas, Feroz Ahmed testified on behalf of present Applicant Society.

3. The learned counsel has referred to the admission made by the said Witness [present Respondent No.4] that it was in their knowledge that Suit Land is an amenity plot; admitted that they have not paid the development charges of the Suit Land, because it was never demanded from them. To a question, has stated that he did not remember the price paid for each sub-divided plot in 1979.

4. The Applicant Witness reiterated the stance as averred in the pleadings. Emphasized that after promulgation of MLO 34, the Suit Land was reverted to Respondent No.5-Karachi Cooperative Societies Union Limited, which after due process was allotted the same to the present Applicant, which has developed the same in accordance with allotment Terms and Conditions. Denied the suggestion that the Suit Land is wrongly allotted to the Applicant-Society. Nothing contradictory has surfaced in his cross-examination.

5. The Agreement between Respondent No.7 [Federal Government] and Respondent No.5, dated 14.01.1954, produced in the evidence as Exhibit-68, is an undisputed document, whereby, the former has transferred a large tract of land in the City of Karachi, inter alia, for development and allotment, including for the purpose of Parks and Playgrounds.

6. The Exhibit-74 and Exhibit 69 [available at Pages-185 and 221] are also undisputed documents; the first one is the Public Notice of 31.01.1978 [published in newspapers] informing that the amenity plots allotted to Al-Riaz Society-Respondent No.6, has been cancelled under Martial Law Order No.34; in this Public Notice, the Suit Land is at Serial No.1; whereas, the second document is the Gazette Notification of 30.09.1979, informing the Public at Large, inter alia, that the amenity plots cancelled in pursuance of the MLO 34, and the Governor of Sindh was pleased to confirm the order of cancellation. This cancellation of Suit Land in favour of Respondent No.6-Al-Riaz Society was never challenged, thus, there is force in the contention of the Applicant's Counsel that once the plot has been cancelled through MLO 34 [dated 30th September, 1977], it could not have been granted / allotted to the private Respondents, subsequently, that is, on 04.02.1979 by Respondent No.6-Al-Riaz Cooperative Housing Society, which allotment is at page-163 of R and P of the above Suit.

7. Above referred MLO 34 has been perused and is reproduced herein under for a ready reference_

"MARTIAL LAW ORDER No.34.

In pursuance of the Proclamation of the fifth day of July 1977, and in exercise of the powers conferred by Martial Law Order No.3 issued by the Chief Martial Law Administrator, the Martial Law Administrator, Zone "C" is pleaded to make the following Martial Law Order :-

All allotments of the plots which were reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centers, mosques, graveyards or for such other amenity / community purposes but were subsequently unauthorizedly or by political maneuvers converted into residential or commercial plots and on which no construction has been made are hereby cancelled and the plots so cancelled shall be resumed by the authority in which the plots initially vested and the amounts, if any, paid by the allottees shall be refunded under the normal rules."

1. It is explicitly mentioned in the above MLO No.34, that all plots reserved for amenity purposes, such as, Playgrounds, Gardens, Parks, Community Centers, if unauthorizedly or by political maneuvers converted into residential or commercial and on which no construction has been made, was cancelled, and shall be resumed by the Authority in which the plot initially vested.

2. Both the Decisions have been considered.

3. Issues Nos.5 to 8 are significant [re-produced in the preceding paragraphs]. The learned Trial Court has held that since the Suit Land was allotted to private Respondents after the promulgation of MLO 34, therefore, the allotment is not hit by the said Martial Law Order. The Trial Court is of the opinion that since the private Respondents paid the charges as mentioned in the Plaint of the of the above Suit, therefore, no illegality is found in the allotment of Suit Land to private Respondents. However, this finding is contrary to record, because in his cross-examination, the above named witness of private Respondents, has admitted that no development charges at the rate of Rs.25 per square yard were paid, in terms of Exhibit 13-the Allotment Letter of 13.02.1979 issued by Respondent No.6-Al-Riaz Society to the private Respondents, available at page-163 of R and P of the Suit. It means that the private Respondents did not even comply the basic Terms of the allotment, which they should have, and thus, it is fatal to their claim. Secondly, both the Courts have grossly failed to consider a very basic fact, that the effect of above MLO 34 was not only for the past transactions but, an embargo for future change of land use as well, from amenity to residential or commercial. This is further fortified by the above Exhibits 69 and 74, inter alia, that the Governor of Sindh confirmed the cancellation of the unauthorized conversion of the amenity plots. Thirdly, at the relevant time, Section 52-A of the KDA Order was also violated, while allowing the purported conversion (of land use) and sub-division of the Suit Land into residential plots, hence, the purported Permission / Approval granted by the Respondent Number 7-Ministry of Housing and Works, vide its Missive dated 31.05.1979 (ibid) was illegal and without jurisdiction. Fourthly, another crucial fact of the case has been negligently overlooked by the learned Courts, while handing down the two impugned Decisions, which is, Correspondence/ Representation of the private Respondents to the Respondent Number7-Ministry of Housing and Works, seeking permission to change the land use and sub-division is based on misrepresentation of facts. The said Representation dated 08.05.1979 is at Page-183 of R and P and at Page-207 of the present Lis record. It is mentioned by the private Respondents, in their Representation that the Suit Land is for use of Small Industrial Homes, which cannot be utilized as such, because in the surrounding there are residential plots, hence, permission was sought to change the Suit Land into residential sub-divided plots, which was approved, as stated above.

4. The unreported Judgment produced by the private Respondents, handed down by the learned Division Bench of this Court in C. P. No. D - 615 of 1978, is distinguishable, due to the reason that it is mentioned in the said Judgment that since petitioner [of the cited Case Law] fulfilled the allotment conditions, when it was later cancelled by MLO 34; secondly, the KDA Order [ibid] was not considered in the above cited Decision; however, at the same time it is observed that the above Decision would not prejudice the PECHS Society.

5. Analyzing the present controversy from the law point, that is, applicability and non-applicability of KDA Order. A brief statutory history of The KDA Order is, that it was promulgated and gazetted as Order V of 1957 dated 13.12.1957 and is available in PLD 1958 Central Statutes Page-159.

6. Karachi Development Authority Order was amended on 11.12.1974 through the Sindh [Amendment] Law Ordinance, 1974, inserting Section 52-A, which for convenience is reproduced below_

"52-A. (1) The Authority shall, immediately after any housing scheme is sanctioned by, or altered with approval of, Government submit to the Commissioner the details including the survey numbers, area and location of each plot reserved for roads, hospitals, schools, colleges, libraries, playgrounds, gardens, parks, community centres, mosques, grave yards or such other purpose and the Commissioner shall notify such details in the Official Gazette.

(2) The Authority or the Housing Society may at any time prior to utilization of any plot reserved for the purpose mentioned in subsection (1), apply to the Commissioner for conversion of such plot to any other purpose.

(3) The Commissioner shall, on receipt of an application under subsection (2), invite objections from the general public through a notice published in one English and one vernacular leading local daily newspaper and the objections, if any, shall be submitted to the Commissioner within 30 days from the date of the publication of the notice.

(4) The Commissioner shall, after considering the objections received under subsection (3) and hearing such persons as he may consider necessary forward his recommendations along with the application and other connected papers to Government for orders."

1. Whereafter, in the year 1994, Article 52-A was made more stringent and a complete ban was enforced on conversion of lands / plots reserved for amenity purpose. This was done vide Karachi Development Authority [Sindh Amendment] Act, 1994, reproduced herein under for reference_

"2. Amendment of Article 52-A of KDA Order V of 1957……In the Karachi Development Authority Order, 1957, in Article 52-A, for clauses (2), (3) and (4) and Explanation thereunder, the following shall be substituted:--

2025 Y L R 45

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Mohammad Abdur Rehman, JJ

Mst. Majida Parveen---Petitioner

Versus

Federation of Pakistan through Secretary Water and 6 others---Respondents

Constitution Petition No. D-1518 of 2023, decided on 14th May, 2024.

Electricity Act (IX of 1910)---

----S. 24---Regulation of Generation, Transmission and Distribution of Electric Power Act (XL of 1997), S.45---Disconnection of electricity meter installed at official accommodation---Demand of arrears of electricity bill of previous consumer---Petitioner sought restoration of electricity connection on the ground that she was not liable to pay the arrears of previous allottee of premises---Validity---Petitioner's allotment letter showed that she had to pay the electricity bill of the official accommodation w.e.f. the date of occupation, which she had been paying regularly as stated by her referring to various documents attached with the memo. of the petition, as such prima facie, respondents were precluded to ask for payment of arrears from the petitioner on a separate meter which had been disconnected and which would also be subject to resolution by the concerned Electric Inspector or any other competent authority within reasonable time and after hearing the parties; however, they might initiate recovery proceedings either from the allotting authority or from the previous allotee through any mode of recovery under the law---Purported determination made by respondent-company in respect of petitioner's connection and making her liable to pay the arrears of the electricity charges consumed by the previous allottee of the official accommodation was not in accordance with law---High Court ordered restoration of electricity connection subject to payment of electricity dues by the petitioner regularly---Constitutional petition was disposed of, in circumstances.

Abdul Hafeez for Petitioner.

Syed Tanveer Abbas Shah for Respondents Nos. 4 to 7.

Muhammad Aslam Jatoi, Assistant A.G., Pakistan.

Date of hearing: 14th May, 2024.

Order

Adnan-ul-Karim Memon, J.---Petitioner Mst. Majida Parveen seeks declaration to the effect that the act of respondent-Sukkur Electric Power Company (SEPCO) to disconnect Electricity Meter installed at her official accommodation is illegal, and demanding arrears of electricity bill amounting to Rs.8,00000/- from her, is also illegal. Petitioner also seeks restoration of electricity connection.

1. Per learned Counsel for the petitioner, it has been a consistent practice of respondents-SEPCO that electricity bills were/are being issued in the name of allottee and the allottee was/is paying the same. He has contended that if an allottee is not paying his/her bills regularly, the respondent-Sepco disconnect his/her electricity, whereas, time and again under coercion the petitioner has been asked to pay off certain liabilities of previous allotee of the official accommodation, allotted to her subsequently, which is apathy on the part of respondent-SEPCO, as new meter has been installed, but now she cannot pay the liability of previous allottee as she has been paying the electricity bills of the premises regularly as such she is not liable to pay arrears of previous allotee under the Electricity Act. He prayed for direction to the respondent-SEPCO to restore the electricity of the premises subject to regular payment to be made by the petitioner which she is already paying, which factum has not been controverted by the other side.

2. Per learned Counsel representing the respondent-SEPCO, notwithstanding this dispute before this Court, the petitioner is not even paying the admitted amount of dues of electricity, consumed by her. He has submitted that when this petition was filed approximately a total amount of Rs. 800000/- was outstanding against the electricity meter installed at her official accommodation, which needs to be paid by the petitioner as she is using the premises and she is liable to pay off the electricity charges including the arrears as discussed supra. So far as the dispute with previous allotee and government of Sindh is concerned the respondent-SEPCO has nothing to do with it, as it is to be resolved by the parties at their own. He prayed for dismissal of this petition.

3. We have heard both the learned Counsel and perused the record. Insofar as the facts are concerned, it appears to be an admitted position that petitioner has been allotted the official accommodation by the Sindh Government and she is paying the electricity bill regularly, except the arrears of Rs.800,000/- which were/are due to be paid either by occupier of the premises or previous allotee, if any, therefore, the question before the Court for disposal of this petition is only to the extent that what measures can be taken by the respondent-SEPCO for recovery of outstanding bill, and whether they are entitled to invoke the provisions of the Electricity Act or can only proceed under the Consumer Service Manual under the NEPRA Act, 1997

4. To resolve such controversy, it would be advantageous to refer to certain provisions of law i.e. Section 24 of the Electricity Act, 1910, Section 45 of the Regulations of Generation, Transmission and Distribution of Electric Power Act 1997 (NEPRA Act), which reads as under:-

Section 24 of the Electricity Act, 1910, "[24. Discontinuance of supply to consumer neglecting to pay charge: (1) Where any consumer neglects to pay any charge for energy or any sum, other than a charge for energy, assessed against him by a licensee in respect of supply of energy to his premises, the licensee may after giving not less than seven clear days' notice in writing to such consumer and without prejudice to his right recover such charge or other sum by suit or otherwise, cut off the supply and for that purpose cut or disconnect any electric supply-line or other works, being the property of the licensee, through which energy may be supplied to such premises or to any other premises, other than domestic premises, running distinctly in the name of such consumer, and may discontinue the supply until such charge or other sum, together with any expenses incurred by him in cutting off and reconnecting the supply and the minimum charges on account of continued reservation of supply during the period of such discontinuance, are paid, but not longer.

(2)

Section 45 of NEPRA Act, 1997

8.1 DISCONNECTION of NEPRA Act, 1997

"A premises is liable to be disconnect if the consumer is a defaulter in making payments of the energy consumption charges bill(s) or if he is using the electric connect for a purpose other than for which it was sanctioned, or if he has extended his load beyond the sanctioned load even after receipt of a notice in this respect from the DISCO. Disconnection Procedure (a) The consumer shall be bound to pay his energy bill within due date specified in the bill or with the late payment surcharge if paid after due date, before the issuance of the next month bill. (b) In case of non-payment of the previous months electricity bill, the DISCO shall serve a clear 7 days' notice to the defaulting consumer to either clear the outstanding dues with the current bill or face disconnection and penal action. (c) Upon non receipt of payment even after the expiry of the notice period, the supply of the defaulting premises shall be disconnected. In such cases the disconnected supply shall not be reconnected or restored by the DISCO until full payment along with late payment surcharge has been made by the consumer. The power supply of the consumers who are allowed by the DISCO to make the payment in installments shall not be disconnected. However, if a consumer further defaults in making payment of installments, the power supply of such a consumer shall be disconnected without any further notice and shall only be restored after receipt of all arrears. (d) The power supply of a defaulting consumer shall not be disconnected who has lodged a complaint/petition against any wrong billing or any dispute relating to the payment of energy bill with DISCO, the Electric Inspectors office/Provincial Office of Inspection or NEPRA (for all such, proper restraining orders shall be issued). DISCO shall also not disconnect the supply if a restraining order to this effect has been issued from any court of law. (e) If a consumer extends his existing load beyond the sanctioned load he shall be issued a notice along with evidence thereof to apply for extension of load within one month of the receipt of notice. The DISCO shall disconnect the power supply if the consumer fails to avail this opportunity"

2025 Y L R 71

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro, J

zAHOOR aHMED and 4 others---Appellants

Versus

The State and another---Respondents

Cr. Misc. Application No. S-35 of 2024, decided on 29th April, 2024.

Prevention of Electronic Crime Act (XL of 2016)---

----Ss. 20, 21(d) & 24---Penal Code (XLV of 1860), Ss. 109 & 506(b)---Summoning of accused, named in column No.2 of the FIR---Scope---Judicial Magistrate took cognizance of offences against the applicants, as they were named in FIR with specific role, which prosecution witnesses in their statements had supported---Validity---No doubt, in the case in which there is a negative report of the Investigating Officer under S.173, Cr.P.C, regarding guilt of an accused---Magistrate has the powers to disagree with Investigating Officer and take cognizance of the offence against such accused---But such exercise is to be carried out judiciously and in consideration of material which although has been collected during investigation or is otherwise available on record, but same was not considered by the Investigating Officer, or was considered but in the wrong context and was made irrelevant to the facts of the case---Magistrate could disagree with the ipse dixit of the police in such cases and could form a different view---But it should be kept in mind that exercise of such discretion by the Magistrate is not unbridled and is subject to availability of incriminating material against the accused to justify him taking a different view than the Investigating Officer---In absence of incriminating material against the accused, it would not lay within competence of a Magistrate to proceed and take cognizance of the offence against any set of the accused who has otherwise been declared innocent by the Investigating Officer due to absence of any evidence---In the present case Magistrate had exercised his powers without referring to any incriminating material and had taken cognizance of the offence against the applicants in a cursory manner ignoring facts---Petition was allowed by setting aside the order impugned, with the direction that if in the trial any incriminating evidence is brought against the applicants by the complainant, or in any subsequent investigation such material is found against them and is submitted before the Court, the prosecution or complainant, or both would be at liberty to file a proper application for joining the applicants, which if filed, shall be dealt with by the Court on its own merits---Application wad disposed of accordingly.

Sikandar Sadar Sidduqi for Applicants along with Applicant No. 1.

Zulfiqar Ali Laghari along with Respondent No. 3, who has filed power and objections on her behalf.

Muhammad Aslam Jatoi, Assistant Attorney General along with Sub-Inspector and Muhammad Ali Sawand, IO, FIA Cyber Crime, Sukkur.

Date of hearing: 29th April, 2024.

Order

Muhammad Iqbal Kalhoro, J.---As per record, respondent No.3 made a complaint before FIA, Cyber Crime Wing, Sukkur against one Imran son of Jan Muhammad, her ex-fiancé and a cousin, alleging that he, after engagement done with consent of their parents, when she happened to talk with him and came close to him, demanded her to send him her nude / obscene pictures on phone, which she obliged. Then on one occasion, he recorded a video call with her when she was in nude / obscene condition. But when after some time, the engagement was broken, he started blackmailing her and threatened her that he would share and make her pictures viral on social media. Meanwhile, he however shared such pictures and his conversation with her brother, namely Abdul Qudoos on his WhatsApp number. He also sent the same to her relatives, friends and her step mother.

1. When such complaint was taken up by FIA for enquiry, she moved another application naming Muhammad Adil, Noor Jahan, Fayaz Ahmed, Ghulam Fatima and Zahoor Ahmed, relatives of main accused, to be his accomplices and equally involved in the case. After such application, the enquiry was expedited and the accused were issued notices to join the same. They replied the notices and recorded their statements. The statement of complainant / respondent No.3 was also recorded.

2. While the enquiry was going on, respondent No.3 filed an application under section 22-A and 22-B, Cr.P.C. before the Ex-Officio Justice of Peace / Ist Additional Sessions Judge, Sukkur and succeeded in getting directions for FIA, CCRC, Sukkur to register FIR against above said accused. After the FIR, scope of enquiry was converted into investigation, the mobile phones of all accused were taken into custody by FIA immediately and sent for forensic examination to a relevant lab. The lab report, when received, belied allegations against the applicants at least, but found main accused Imran in active WhatsApp conversation, not appropriate, with complainant / respondent No.3. With no evidence collected through scientific methods against the applicants on the one hand complainant herself, as per report of FIA, also failed to submit any tangible proof of harassment to her by the applicants through any other mode including through WhatsApp messages etc. on the other hand. Finding absolutely no evidence against the applicants except an unsubstantiated word of the complainant, the IO submitted the Challan against only Imran for the offence under section 20, 21(d), 24 of Prevention of Electronic Crimes Act, 2016 read with Sections 109, 506/2, P.P.C. and let off the applicants under section 497, Cr.P.C. by placing their names in column No.2.

3. When such report prepared under section 173, Cr.P.C. was submitted before learned Judicial Magistrate-I, Sukkur, he heard the parties, after due notice, rejected opinion of the IO, and proceeded to take cognizance of the offences against the applicants and joined them as accused vide impugned order dated 11.12.2023. The applicants have challenged the same through this application.

4. I have heard the parties (applicant No.1, respondent No.3 and her father), their advocates and gone through material available on record. The reason, which has weighed with the learned Judicial Magistrate to take cognizance of offences against the applicants, and which he has mentioned in the impugned order, is that they are named in FIR with specific role, and which PWs in their statements have supported. Apart from these generic observations, learned Magistrate has not referred to any incriminating evidence against the applicants cementing, in his view, their involvement in the offence. The orders is completely bereft of a mention of any details about their so called specific role or any piece of evidence as a reason to justify making applicants as accused in the case to stand a trial on the said charges.

5. Initially, respondent No.3 / complainant had moved a complaint against her ex-fiancé only leveling allegations against him of harassment, blackmailing, threatening, sharing her nude pictures and video clips with her relatives, friends etc. It was only later, during pendency of such complaint, she came up with the second version of the events expanding scope of the matter by leveling identical allegations against the applicants. After registration of FIR, since the main allegations were of misuse of mobile phones by applicants and main accused Imran for spreading her nude pictures / conversation etc. with the relatives, friends and her brother, their mobile phones were seized immediately by the IO. However, when they were subjected to a forensic examination, nothing of the sort as alleged was found. Neither any nude picture(s) of respondent No.3 / complainant, nor any message / record / data, whereby such pictures were transmitted to anyone, was detected. The thrust of allegations qua applicants thus got undermined substantially. When such report is taken into account plus absence of any other evidence establishing sharing of any nude pictures etc. of complainant on any WhatApp group etc. by the applicants, nothing incriminating except a word of the complainant, without any tangible proof, would remain against the applicants.

6. Leveling allegations against an accused by a complainant in FIR would not mean that such allegations would be treated gospel truth and the moment they are made would be deemed to have been proved sans of any need to subject them to any investigation to verify their truthfulness and genuineness. It appears that the Judicial Magistrate without taking into consideration all these settled propositions, and without referring to any incriminating evidence, got influenced by mere a word of the complainant and witnesses that the applicants were causing harassment and threatening her through mobile phones with dire consequences including sharing her nude pictures or inappropriate conversation with Imran, and formed a view that the applicants were prima facie involved in the offence and the trial against them was warranted.

7. No doubt, in the case in which there is a negative report of the IO under section 173, Cr.P.C. regarding guilt of an accused, the Magistrate has the powers to disagree with him and take cognizance of the offence against such accused. But it goes without saying that such exercise is to be carried out judiciously and in consideration of material which although has been collected during investigation or is otherwise available on record, but either was not considered by the IO, or was considered but in the wrong context and made irrelevant to the facts of the case. The Magistrate can disagree with the ipse dixit of the police in such cases and can form a different view. But it shall be kept in mind that exercise of such discretion by the Magistrate is not unbridled and is subject to availability of incriminating material against the accused to justify him taking a different view than the IO. In absence of incriminating material against the accused, it would not lie within competence of a Magistrate to proceed and take cognizance of the offence against any set of the accused who have otherwise been declared innocent by the IO due to absence of any evidence.

8. In this case also, as observed above, learned Magistrate has exercised his powers without referring to any incriminating material and has taken cognizance of the offence against the applicants in a cursory manner ignoring the fact that when their mobile phones were subjected to a forensic examination, nothing as alleged by the complainant was found in them.

2025 Y L R 125

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Aslam and another---Petitioners

Versus

United Bank Ltd. and others---Respondents

C.P-S Nos. S-177 and S-178 of 2002, decided on 4th September, 2024.

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

----S.15---Eviction petitions---Default in payment of rent---Subletting without consent of bank/landlord---Eviction petitions were dismissed by the Rent Tribunal, against which appeals were preferred, which were accepted on the ground of default only as the ground of subletting the shops was withdrawn by the landlord---Contentions of the petitioners/tenants was that the attorney, who had filed eviction petition, appeared in the court to give evidence without any authority and that the ground of default remained unproved, thus, Appellate Court could not have passed the eviction orders---Validity---Landlord being a company was required to be represented by some of its officials having been conferred due authority in clear terms, which requirement was fulfilled by way of filing of the power of attorney (PoA), thus, no further document was required to confirm authority of the attorney to represent the landlord in the Court proceedings---Landlord representative by submitting a copy of PoA, not objected to by the other side, had showed his authority, which was sufficient evidence to satisfy the requirement of adequate representation of the landlord in the Court of law---Proceedings before the Rent Controller were quasi judicial in nature and technicality of any nature frustrating the aim and object of Sindh Rented Premises Ordinance, 1979, (SRPA) could not be allowed to prevail---PoA clearly stated that all the powers necessary to represent the landlord were bestowed upon the attorney to appear and act on behalf the landlord in the proceedings before the Rent Controller, thus, no further evidence on the point was required, nor on any technicality the evidence of the attorney could be discarded---Practice of paying rent in a lump sum did not override the terms of the tenancy agreement or the purpose of the SRPO---Precedent of how rent was paid in the past between the parties did not absolve the tenants from their obligation to pay monthly rent in advance as per the agreement---Landlord had the right to seek monthly rent payments in advance as agreed between the parties---High Court found no evidence that the landlord fraudulently created a ground of default in its favour by delaying rent payments of the tenants---Constitutional petitions were dismissed, in circumstances.

1988 SCMR 1385; 1989 SCMR 403; PLD 1980 SC 298; 1993 SCMR 200; 2000 SCMR 472; PLD 1982 Karachi 71; 1994 MLD 2251 and PLD 2005 SC 418 ref.

Mushtaq Ahmed Memon and Shahid Ali Ansari for the Petitioner.

Abdul Haleem Siddiqui for Respondent No. 1.

Date of hearing: 27th August, 2024.

Order

Muhammad Iqbal Kalhoro, J.---This judgment disposes of two constitution petitions arising out of impugned judgments dated 08.02.2005 passed in two different First Rent Appeals (FRAs) numbered as 236/2001 and 238/2001. The reason to dispose of both the petitions by one and single judgment is that in both the cases respondent/landlord is the same viz. M/s. United Bank Ltd. (UBL), the demised premises are situated in the same building and both the impugned judgments have been passed on the same day by the same Court. C.P. No.S-177/2005 is in respect of Shop No.5 and C.P. No.S-178/2005 is about Shop No.8, both situated in UBL Building Chowrangi Mahal, Gurumandar Mandar, Karachi. The Rent Case No. 1215/2000 was filed against petitioner in C.P. No.S-177/2005 Aslam and Rent Case No.1217/2000 was filed against petitioner Nazim in C.P. No.S-1 78/2005 by the respondent.

1. The grounds in both the rent applications seeking eviction of the petitioners was subletting the demised premises and committing default in payment of rent but later on the ground of subletting the premises was withdrawn. After the trial, rent applications were dismissed by the Rent Controller in terms of two separate orders passed on the same date 31.03.2000, mainly holding that the Power of Attorney (PoA) filed by the attorney of the bank/respondent did not specifically confer authority on him to file ejectment application and lead evidence. And furthermore, no copy of resolution in favour of the attorney by the Directors of the Company / bank to file ejectment application was attached along with the rent case. Hence, the very filing of ejectment application and giving evidence by the attorney were not maintainable in law and could not be taken into account as merits of the case. The issue of default was also decided against the respondent by the Rent Controller, who has observed in the orders that from evidence, it is clear that petitioner used to pay rent in lump sum and there is record showing that rent has been paid to the bank up to the disputed period of default. Against such order, respondent's bank filed separate FRAs as stated above and through the impugned judgments has succeeded to seek ejectment order against the petitioners. Hence, these petitions.

2. I have heard learned counsel for the petitioners, who has drawn my attention to the PoA available in the file and submits that attorney was not given authority exclusively to file ejectment application or give evidence singly by filling only his affidavit-in-evidence in the Court. According to him, in the PoA the word jointly in para-1 is mentioned and in terms of para-9, the attorney was required to jointly act with the other attorney of the bank by not only filing the rent application together but giving the evidence accordingly. Therefore, the evidence of a single attorney on behalf of the bank is invalid and would not be read as a statement having any evidentiary value.

3. Insofar as default is concerned, his argument is that as per routine, the rent was being paid to the bank by the petitioner in lump sum. Previously also through a single pay order, the petitioners had been paying the rent of many months to the bank without a single objection raised by the latter. Particularly, in this regard, he has drawn attention to para-3 of the written reply filed by the petitioners to the rent case showing that on at least seven occasions, the rent of several months in lump sum was paid to the bank through one pay order / cheque without any objection from the bank. He has submitted that the rent, till December, 1996, was accordingly paid to the bank by the petitioner. Therefore, since no receipt was being issued against the rent, hence, initially, the rent was tendered through a money order in the month of January, 1997, which was returned un-delivered, hence, through MRC No.81/1997, the petitioner started paying the rent in the Court of II-Rent Controller, Karachi. He submits that since the rent had been paid up-to the disputed period of default, no case for eviction on the ground of default was made out against the petitioner and the rent case on such sole ground was not sustainable. He has relied upon case laws reported in 1986 SCMR(sic), 1988 SCMR 1385, 1989 SCMR 403, PLD 1980 SC 298, 1993 SCMR 200, 2000 SCMR 472, PLD 1982 Karachi 71, 1994 MLD 2251 and PLD 2005 SC 418 to support his arguments.

4. On the other hand, learned counsel for the respondents has supported the impugned judgment.

5. I have considered submissions of the parties and perused material available on record. The record reflects that application under section 15 of Sindh Rented Premises Ordinance (SRPO) was filed in respect of the above shops against the petitioners by the respondent on the ground of subletting the premises and default in payment of rent. The ground of subletting since was withdrawn; the case proceeded only on the ground of default allegedly from 01st January, 1995 till filing of the case. In the written reply, the petitioners have refuted the said claim and have made a further claim of having paid pugri of Rs.37000/- as advance rent. It is further stated by the petitioners that the rent was being paid by them in lump sum. There was no default committed by them.

6. Insofar as the ground of petitioners that the very filing of application through attorney, who appeared in the Court and gave evidence, is not valid, is concerned, it may be said that PoA in clear terms confers authority on the attorney in terms of clause-9 to represent and file applications, written statement, etc. in the Courts in any proceedings on behalf of the bank. This authority was not challenged by the petitioner specifically, either in the rent case or in FRAs subsequently. It is not disputed either that rent application was filed jointly by the two attorneys of the bank as envisaged in PoA. However, at the time of evidence, since one attorney namely Kamran Aziz, who had filed the rent case, was on leave, the other attorney namely Abdul Razak appeared in the Court and filed his affidavit-in-evidence on behalf of the bank. Neither at the time of filing of written reply, nor at the time of recording of his evidence, any objection to his authority to adduce evidence and represent the bank was raised by the petitioners. The bank being a company was required to be represented by some of its officials having been conferred due authority in clear terms, which requirement was fulfilled on filing of the PoA. Therefore no further document was required to confirm authority of the attorney to represent the bank in the Court proceedings. By submitting a copy of PoA, not objected by the other side, by the bank representative to show his authority was sufficient evidence to satisfy the requirement of adequate representation of the bank in the Court of law. Further, the proceedings before the Rent Controller are quisi judicial in nature and technicality of any nature frustrating the aim and object of SRPO cannot be allowed to prevail. The perusal of PoA clearly states that all the powers necessary to represent the bank were bestowed upon the attorney to appear and act on behalf the bank in the proceedings before the Rent Controller. In view of such material, no further evidence on the point was required, nor on any technically the evidence of the attorney could be discarded.

2025 Y L R 137

[Sindh]

Before Salahuddin Panhwar and Khadim Hussain Soomro, JJ

Syed Najeebuddin Ahmed---Appellant

Versus

Federation of Pakistan through the Secretary, Ministry of Energy (Power Division) and 5 others---Respondents

Constitution Petitions Nos. D-2724, along with 5654, 6798 of 2022 and 233 of 2024, decided on 29th May, 2024.

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

----Ss. 100, 103 & 141---Karachi Metropolitan Corporation (Collection of Municipal Utility Charges and Tax) Rules, 2002---Municipal and utility charges tax, collection of---Petitioners assailed charging of municipal and utility charges in electricity bills---Contention of respondent / Mayor Karachi Metropolitan Corporation (KMC) was that they intended to establish a committee, inclusive of representatives from all political parties, which was tasked with deliberating resolution/dispute, which would be presented to the Council---Following observance of due legislative process, the Council would then proceed accordingly---Respondent / Mayor contended that they after examining number of units in electricity bills and, up to 300 units would extend relief to common man living below the standard life, who could not afford more financial burden---Respondent / Mayor contended that such exercise would be completed within three months---High Court declined to interfere in the matter in view of the contentions of respondent / Mayor---High Court directed KMC to proceed with its actions in compliance with applicable law and any Resolutions or Notifications issued by KMC would be considered provisional and subject to final determination---Constitutional petition was disposed of accordingly.

Muhammad Tariq Mansoor for the Petitioners (in C.P. No. D-2724 of 2022 and 233 of 2024).

Arif Shaikh and Zeeshan Rafiq for the Petitioner No. 1 (in C.P. No. D-2724 of 2022).

Usman Farooq for the Petitioner (in C.P. No. D-5654 of 2022).

Syed Hassan Mujtaba Abidi, Mohsin Khan and Naveed Anjum for Respondent/KMC.

Zeeshan Adhi and Suresh Kumar, Addl. A.G. Sindh.

Murtaza Wahab, Mayor Karachi.

Ayan M. Memon, Hassan Qamar along with Syed Irfan Ali Shah, Director Legal, K-Electric for Respondent No. 6.

Order

Salahuddin Panhwar, J.---Heard parties at length. Three petitions bearing C.P. Nos. D-2724, 5654 and 6798 2022 are challenging the resolution of Administrator and Notifications dated 21.01.2022, 11.04.2022 and 12.04.2022, whereas, C.P. No.D-233/2024 is filed after two years wherein declaration is sought by challenging provisions of KMC, MUCT Rules, 2022 to the extent of Rules 2(b), 3, 4(a), (b), (c), (d), (e), 5(a), (b) for entering into contract with public/private utility service providers for collection of MUCT Tax are inconsistent, ultra vires and in contravention with the parent Act. Further that petition seeks enforcement of power of collection regarding MUCT Tax under Sections 100(2), 103(3), 141(1) of SLGA, 2013 as well as challenged Council Resolution No.22 dated 11.12.2023.

1. In C.P. No.D-2724 of 2022, the Petitioners have prayed for the following reliefs:-

a) To declare the impugned act/decision to charge from the citizens of Karachi the two KMC taxes, i.e. Fire and Conservancy and/or any other tax/duty through the K- Electric bills is illegal, unlawful and discriminatory, as such not tenable and set-aside the said impugned decision.

b) To hold that the mechanism already in vogue for collection of Municipal taxes by the department be made effective and efficient to get collection of the Municipal taxes rather hiring the service of K-Electric, further burdening the KMC, instead to utilizing the services of the own employees who are heavily paid by the department.

c) To suspend the operation of the impugned decision for collection of Fire and Conservancy taxes through K-Electric bills, notified vide Notification dated 21.01.2022, issued by the Respondents, Government of Sindh.

d) Any other relief(s) as this Honorable court deems fit and appropriate under the circumstances of the case may be granted to the petitioner.

1. In C.P. No.D-5654 of 2022, the Petitioners have prayed for the following reliefs:-

(i) Declare that Municipal Utility Charges and Taxes imposed under the Resolution of Respondent No. 4 are illegal and without following the provisions of law.

(ii) Declare that connecting and linking the Municipal Utility Charges and Taxes with the consumption of electricity units is illegal and liable to be set aside.

(iii) Declare Notifications dated 21-01-2022, 11-04-2022, 12.04.2022 and summary put up by the Metropolitan Commissioner and Resolution signed by the Respondent No. 4, as illegal, void and ab-initio.

(iv) Stop the Respondents No. 6 from collection of Municipal Utility Charges and Taxes, in Electricity Bills.

(v) Any other relief which this Hon'ble Court deems fit and proper in the circumstances.

1. In C.P. No.D-6798 of 2022, the Petitioner has prayed for the following reliefs:-

I. Declare that Municipal Utility Charges and Taxes (MUCT) imposed by Respondent No. 4 on the consumption of electricity units are illegal and contrary to law.

II. Declare that collection of MUCI through monthly electricity bills is unlawful and ultra vires the Act, 2013.

III. Declare that the Impugned notifications are all illegal, unlawful and void ab initio.

IV. Permanently and pending disposal of this case, restrain the Respondent No. 4 from imposing and collecting MUCT through electricity bills.

V. Grant such other relief as may be deemed necessary in the circumstances of the case.

VI. Grant costs.

1. The Karachi Metropolitan Corporation (Collection of Municipal Utility Charges and Tax) Rules, 2002, are legislative instruments governing the levy and collection of municipal utility charges and taxes within Karachi. These regulations delineate the procedural framework and methodologies for the accrual of fees associated with municipal amenities. In particular, they stipulate the assimilation of such charges within the power invoices furnished by K-Electric. Moreover, these rules explicate the duties and obligations incumbent upon the Karachi Metropolitan Corporation (KMC) and K-Electric in the execution of this mandate. The efficacy of these collection modalities has been a contentious issue. Proponents within the KMC assert that robust collection systems are imperative for the financial fortification of the Corporation. Conversely, the legitimacy of the KMC's provisional administration to enforce these levies has been called into question. To encapsulate, the aforementioned Rules are designed to facilitate the efficient appropriation of municipal utility charges and taxes in Karachi, with an emphasis on the utilization of electricity billing as the primary collection conduit. Nonetheless, the juridical scrutiny and contractual dynamics between KMC and K-Electric are under judicial review by this Court in Constitution Petition No. D-233 of 2024, wherein the constitutional validity of the said Rules is being contested. In Constitution Petition No.D-233/2024, the Petitioner challenges the validity (vires) of the Rules promulgated by the Local Government. This Court heard arguments of the learned counsel for the Petitioner, who cited various legal precedents (case laws). However, due to paucity of time, the hearing of Constitution Petition No. D-233/2024 is adjourned being part-heard. The matter will be fixed in the second week of August, 2024. Office is directed to de-tag C.P.No.D-233/2024, however, the injunction application in this petition will be decided with main petition. With regard to ad-interim injunction in peculiar circumstances we are of the view that same cannot be extended in this petition at this stage.

2025 Y L R 187

[Sindh]

Before Irshad Ali Shah, J

Mansoor Mujahid---Appellant

Versus

The State---Respondent

Criminal Appeals Nos. 748 and 792 of 2019, decided on 7th October, 2024.

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

----Ss. 302(b), 297 & 34---Qatl-i-amd, trespassing on burial places, common intention---Appreciation of evidence---Delay of two days in lodging the FIR---Accused were charged that they in furtherance of their common intention committed murder of the deceased by causing fire shot and dagger injuries and then poured acid on his dead body and then threw it in an open space---Admittedly, there was no eye-witness to the incident---Evidence of "SA" who happened to be the driver of the deceased with no driving license was to the extent that on 20.06.2013 he took the deceased and absconding accused Mst. "MZ" in car to the house/ apartment of appellant wherefrom he did not return---On inquiry, said witness was told by the appellants and the absconding accused Mst. "MZ" that the deceased had already gone; he intimated such fact to Mst. "N", then went to the house of deceased with his car and related such fact to wife of the deceased---On 21.06.2013, it was intimated to said witness by wife of deceased that she had received a message from absconding accused Mst. "MZ" that appellant had murdered the deceased---On such intimation, said witness and relatives of the deceased went to the Police Station and reported the incident there, which was done on 21.06.2013, with a delay of about one day of the actual missing of the deceased---Technically it was a First Information Report of the incident---Death of the deceased being unnatural was confirmed by Medical Officer with the narration that the time between the death of deceased and postmortem was about 36 to 48 hours---Investigating Officer further stated that he then recorded S.154, Cr.P.C statement of complainant; it was recorded on 22.06.2013 with a further delay of one day---Same was later on incorporated into FIR---Indeed, it was the Second Information Report of the same incident---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and others v. The State and another 1995 SCMR 127 rel.

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

----Ss. 302(b), 297 & 34---Qanun-e-Shahadat (10 of 1984), Art. 39---Qatl-i-amd, trespassing on burial places, common intention---Appreciation of evidence---Admission before the police---Inadmissible in evidence---Accused were charged that they in furtherance of their common intention committed murder of the deceased by causing fire shot and dagger injuries and then poured acid on his dead body and then threw it in an open space---Investigating Officer interrogated both the accused persons, on which it was disclosed by appellant that he had caused fire shot injuries to the deceased with his revolver---Such fact was affirmed by appellant Mst. "AZ" by stating that she had also caused dagger injuries to the deceased---If it was believed that such a disclosure was made by the appellants before the said Investigating Officer even then it could hardly be used against them as evidence in terms of Art.39 of Qanun-e-Shahadat, 1984---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

SAK Rehmani v. The State 2005 SCMR 364; Muhammad Nadeem alias Banka v. The State 2011 SCMR 1517; Nasir Javed v. The State 2016 SCMR 1144 and Mst. Asiya v. The State 2023 SCMR 383 ref.

Tahir Javed v. The State 2009 SCMR 166 rel.

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

----Ss. 302(b), 297 & 34---Qatl-i-amd, trespassing on burial places, common intention---Appreciation of evidence---No incriminating material recovered---Accused were charged that they in furtherance of their common intention committed murder of the deceased by causing fire shot and dagger injuries and then poured acid on his dead body and then threw it in an open space---Record showed that no incriminating piece of evidence was collected by Investigating Officer either from the car used for the commission of the incident or from the flat/place of the incident though he remained there for about 03 to 03.30 hours---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 297 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, trespassing on burial places, common intention---Appreciation of evidence---Withholding material witnesses---Effect---Accused were charged that they in furtherance of their common intention committing murder of the deceased by causing fire shot and dagger injuries and then poured acid on his dead body and then threw it in an open space---Record showed that SSP helped Investigating Officer to solve the issue of interrogation and recovery of the dead body---Said SSP had not been examined by the prosecution---Moreover, four witnesses had been given up by the prosecution for no valid reason---Thus, presumption which could be drawn from their non-examination in terms of Art.129(g) of Qanun-e-Shahadat, 1984, would be that they were not going to support the case of the prosecution---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 297 & 34---Qatl-i-amd, trespassing on burial places, common intention---Appreciation of evidence---Delay of more than three years in the recovery of incriminating articles---Effect---Accused were charged that they in furtherance of their common intention committed murder of the deceased by causing fire shot and dagger injuries and then poured acid on his dead body and then threw it in an open space---Surprisingly, the incriminating articles viz. blood-stained pillow, two cloth bed sheets, two churries and a piece of foam having blood marks separated from the mattress were secured by Investigating Officer under memo---Such articles as per receipt were delivered in the office for Forensic Examination on 06.09.2016 with a delay of more than three years---No explanation for such delay was offered by the prosecution---In such a situation, the appellants could hardly be connected with such recovery---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 rel.

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

----Ss. 302(b), 297 & 34---Qatl-i-amd, trespassing on burial places, common intention---Appreciation of evidence---Recovery of pistol and belongings of deceased on the pointation of accused---Inconsequential---Accused were charged that they in furtherance of their common intention committing murder of the deceased by causing fire shot and dagger injuries and then poured acid on his dead body and then threw it in an open space---Investigating Officer stated that on interrogation appellant led him to the flat of his mother and produced an unlicensed pistol allegedly used by him in the commission of the incident; it was secured under memo---As per the memo, it was a pistol of .22 bores; but such figure was tampered to be of .32 bores---For such recovery, as per Investigating Officer, a separate case was registered---Letter whereby such pistol was sent to Forensic Expert spoke that it was a pistol of .22 bores---Such inconsistency could not be overlooked; even otherwise appellant had already been acquitted of the charge relating to recovery of an unlicensed weapon from him and such acquittal had attained finality up to the stage of High Court, therefore, he could not be connected with such recovery---Investigating Officer further stated that on further interrogation appellant led to the recovery of the belongings of the deceased from the flat of his mother, which he secured under the memo. prepared by him at the spot---Perusal of such memo. revealed that it was prepared by 2nd Investigating Officer---However, name and signature of said Investigating Officer had been tampered with and substituted with the name of 1st Investigating Officer with the addition of the name of 3rd witness to recovery---Such tampering/substitution could not be lost of sight and it had made the very recovery to be doubtful---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 297 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, trespassing on burial places, common intention---Appreciation of evidence---Judicial confession of accused---Scope---Accused were charged that they in furtherance of their common intention committing murder of the deceased by causing fire shot and dagger injuries and then poured acid on his dead body and then threw it in an open space---Record showed that the judicial confession of appellant Mst. "AZ" was recorded whereby she stated that it was Mst. "MZ" who had murdered the deceased by causing him fire shot injuries---Investigating Officer recovered a diary on the pointation of appellant Mst. "AZ"; it was written therein by her that she had been subjected to rape by the deceased and it was read by the appellant---Such fact was alleged to be a motive for the incident---Said diary had never been produced in evidence before the Court under the deception that it had been burnt on account of a fire in Malkhana of District Court---No entry was produced by any of the Investigating Officers which could have suggested that such a diary was kept by them in Malkhana---In such a situation, none of the appellants could be connected with such a diary---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Talib Hussain v. The State 1995 SCMR 1538; Nazir Shehzad and another v. The State 2009 SCMR 1440 and Mobashir Ahmad v. The State 2009 SCMR 1133 ref.

Shaukat Hayat, Muhammad Khalid, Syed Muhammad Abdul Kabeer and Ms. Amna (in Appeal No. 748 of 2019) and , Kashif Hanif, Zafar Iqbal Arain, Sarmad Ali, Ms. Shaista Parveen, Ali Hyder and Yogesh Balani (in appeal No. 792 of 2019) for Appellants.

Ms. Rubina Qadir, DPG for the State.

Dates of hearing: 2nd, 9th, 23rd, 30th September and 7th October, 2024.

Judgment

Irshad Ali Shah, J.---It is the case of the prosecution that the appellants and absconding accused Mst. Masooma Zainab Abidi in furtherance of their common intention murdered Faisal Nabi Malik by causing him fire shot and dagger injuries and then poured acid on his dead body and then thrown it in open space adjacent to Sun Rise Apartments, Shireen Jinnah Colony, Karachi, to save themselves from legal consequences, for which the present case was registered. The appellant and absconding accused Mst. Masooma Zainab Abidi did not plead guilty to the charge and the prosecution to prove the same examined twenty witnesses and then closed its side. The appellants in their statements recorded under Section 342, Cr.P.C denied the prosecution's allegation by pleading innocence; they did not examine anyone in their defence or themselves on oath, however, produced certain documents to prove their innocence. On completion of trial, they were convicted under section 302(b) read with 34, P.P.C. and sentenced to undergo imprisonment for life and to pay compensation of Rs.2,00,000/- to the legal heirs of the deceased and in default in payment whereof to undergo simple imprisonment for six months; they were further convicted under section 297 read with 34, P.P.C. and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.10,000/- each and in default in payment whereof to undergo simple imprisonment for one month; both the sentences were directed to run concurrently with benefit of Section 382(b), Cr.P.C by learned 1st Additional Sessions Judge (MCTC) Karachi South vide judgment dated 29.10.2019, which they have impugned before this Court by preferring two separate appeals.

1. It is contended by learned counsel for the appellants that the appellants are innocent and have been involved in this case falsely by the police at the instance of the complainant party; there is no eye-witness to the incident; the recoveries are doubtful; the circumstantial evidence being weak has been relied upon by the learned trial Court without lawful justification, therefore, they are entitled to their acquittal by extending them the benefit of the doubt. In support of their contentions, they have relied upon the cases of SAK Rehmani v. The State (2005 SCMR 364), Muhammad Nadeem alias Banka v. The State (2011 SCMR 1517), Nasir Javed v. The State (2016 SCMR 1144) and Mst. Asiya v. The State (2023 SCMR 383).

2. Learned DPG for the State and learned counsel for the complainant have sought dismissal of the instant appeals by contending that there is the judicial confession of appellant Anab Zehra though it is exculpatory yet it proves the factum of the incident; there is recovery of crime weapon, the diaries and every circumstances implicate the appellants in commission of the incident. In support of their contentions, they relied upon the cases of Talib Hussain v. The State (1995 SCMR 1538), Nazir Shehzad and another v. the State (2009 SCMR 1440) and Mobashir Ahmad v. The State (2009 SCMR 1133).

3. In rebuttal, it is contended by learned counsel for appellant Mansoor Mujahid that he has already been acquitted by learned V-Assistant Sessions Judge Karachi South in case relating to recovery of crime weapon from him and such acquittal has been maintained by this Court even.

4. Heard arguments and perused the record.

5. Admittedly, there is no eye-witness to the incident. Evidence of P.W Saeed Amin who happened to be the driver of the deceased with no driving license is to the extent that on 20.06.2013 he took the deceased and absconding accused Mst. Masooma Zainab Abidi in car to the house/apartment of appellant Mansoor Mujahid wherefrom he did not return; on inquiry, he was told by the appellants and the absconding accused Mst. Masooma Zainab Abidi that the deceased has already gone; he intimated such fact to P.W Mst. Nadia, then went to the house of the deceased with his car and related such fact to P.W Mst. Narmeen who happened to be wife of the deceased. On 21.06.2013, it was intimated to him by P.W Mst. Narmeen that she had received a message from absconding accused Mst. Masooma Zainab Abidi that Mansoor Mujahid had murdered the deceased; on such intimation, he and relatives of the deceased went to the PS Clifton and reported the incident there. It was done on 21.06.2013, was with a delay of about one day to the actual missing of the deceased. It was recorded by I.O/SIP Amir Khan Niazi under Roznamcha entry No.46; technically it was a First Information Report of the incident. On asking, it was stated by the said P.W that the deceased was addicted to liquor and other contraband addiction and was fond of friendship with the girls. After recording such an entry in Roznamcha I.O /SIP Amir Khan Niazi investigated the present case; it was stated by him that he with the police party proceeded to the place of the incident; it was a flat; it was found locked from the outside; in the meanwhile there came the appellant Mansoor Mujahid; he unlocked the flat, inside of it was found sitting appellant Mst. Anab Zehra; both were interrogated; on which it was disclosed by appellant Mansoor Mujahid that he has caused fire shot injuries to the deceased with his revolver; such fact as per him was affirmed by appellant Mst. Anab Zehra by stating that she has also caused dagger injuries to the deceased. If for the sake of the arguments, it is believed that such a disclosure was made by the appellants before the said I.O/SIP even then it could hardly be used against them as evidence in terms of Article 39 of Qanun-e-Shahadat Order, 1984. It was further stated by the said I.O/SIP that on the pointation of the appellants, he went towards Sun Rise Apartments at Shireen Jinnah Colony, Karachi and found the dead body of the deceased lying there; it was secured under a memo. prepared at the spot in presence of P.Ws /Mashirs Zahid Siddiqui and complainant Nael Khan who also identified the dead body of the deceased. Both the appellants were apprehended; the car used in the commission of the incident was secured under the memo. prepared at the spot in presence of the same P.Ws/Mashirs. The dead body of the deceased was then shifted to Civil Hospital Karachi for postmortem. The death of the deceased being unnatural is confirmed by Dr. Partosham with the narration that the time between the death of deceased and postmortem was about 36 to 48 hours. It was further stated by the said I.O/SIP that he then recorded 154, Cr.P.C statement of complainant Nael Khan; it was recorded on 22.06.2013 with a further delay of one day; the same later on was incorporated into FIR. Indeed, it was the Second Information Report of the same incident. Further investigation of the case as per him was conducted by I.O/SIP Muhammad Saleem. On asking it was admitted by him that Zamzama is a commercial area having watchmen; no incriminating piece of evidence was collected by him either from the car used for the commission of the incident or from the Flat/place of the incident though he remained there for about 03 to 03.30 hours and SSP Shoukat Imran helped him to solve the issue of interrogation and recovery of the dead body. SSP Shoukat Imran has not been examined by the prosecution. It is said by appellant Mansoor Mujahid in his statement recorded under section 342, Cr.P.C that he was his ex-stepfather and was instrumental in his involvement in the present case to satisfy with him his matrimonial dispute. Surprisingly, on further investigation, the incriminating articles viz. blood-stained plow, two cloth bad sheets, two churries, and a piece of foam having blood marks separated from the mattress were secured by I.O/SIP Muhammad Saleem under memo. How this happened? It is a mystery. Those articles as per receipt produced by Dr. Abdul Hameed were delivered in his office for Forensic Examination on 06.09.2016 with a delay of more than three years. No explanation to such delay is offered by the prosecution. In such a situation, the appellants could hardly be connected with such recovery. It was further stated by I.O/SIP Muhammad Saleem that on interrogation appellant Mansoor Mujahid led him to the Flat of his mother and produced an unlicensed pistol allegedly used by him in the commission of the incident; it was secured under memo. As per the memo, it was the pistol of .22 bores; such figure is tempered to be of .32 bores. For such recovery, as per him, a separate case was registered. The letter whereby such pistol is sent to Forensic Expert speaks that it was a pistol of .22 bores. Such inconsistency could not be overlooked; even otherwise appellant Mansoor Mujahid has already been acquitted of the charge relating to recovery of an unlicensed weapon from him and such acquittal has attained finality up to the stage of this Court, therefore, he could not be connected with such recovery. It was further stated by the said I.O/SIP that on further interrogation appellant Mansoor Mujahid led to the recovery of the belongings of the deceased from the flat of his mother, which he secured under the memo. prepared at the spot. The perusal of such a memo. reveals that it was prepared by I.O/SIP Muhammad Mubeen. His name and signature have been tempered with and substituted the name of I.O/SIO Muhammad Saleem with the addition of the name of 3rd witness to recovery as Zahid Siddiqui. Such tempering/substitution could not be lost of sight and it has made the very recovery to be doubtful. It was further stated by him that on 23.06.2013 he recorded 161, Cr.P.C statement of Mst. Narmeen; it was disclosed by her that Mst. Masooma Zainab Abidi is an eye-witness to the incident. On such disclosure, he called Mst. Masooma Zainab Abidi recorded her 161, Cr.P.C statement and also wrote a letter to the Magistrate having jurisdiction for recording her 164, Cr.P.C statement; the same could not be recorded as he was suspended and further investigation was conducted by I.O/SIP Irshan Karim. It was stated by him that on investigation he recorded 161, Cr.P.C statements of Shaikh Usman and Nasir Kazmi concerning the flat wherein the incident took place which was let out by them to appellant Mansoor Mujahid; dispatched the property to Forensic Expert for report; obtained the tracker data concerning car used in the commission of the incident; recorded 161, Cr.P.C statement of Mst. Amina wife of the complainant; obtained the postmortem report; arrested P.W Mst. Masooma Zainab Abidi as an accused. Probably it was done by him based on the judicial confession of appellant Mst. Anab Zehra whereby she stated that it was Mst. Masooma Zainab Abidi who had murdered the deceased by causing him fire shot injuries. It was further stated by the said I.O/SIP that he recovered a diary on the pointation of appellant Mst. Anab Zehra. It was written therein by her that she has been subjected to rape by the deceased and was red by appellant Mansoor Mujahid. It was alleged to be a motive for the incident. Such a diary has never been produced in evidence before the Court under the deception that it has been burnt on account of a fire in Malkhana of District Court Karachi. No entry is produced by any of the Investigating Officers which could have suggested that such a diary was kept by them in Malkhana. In such a situation, none of the appellants could be connected with such a diary. It was further stated by the said I.O/SIP that the further investigation of the case was conducted by I.O/DSP Muhammad Mubeen. It was stated by him that on investigation he recorded 161, Cr.P.C statements of P.W Tariq Ali Pathan and others, then furnished interim challan of the case before the Magistrate having jurisdiction, whereby absconding accused Mst. Masooma Zainab Abidi was let off by him; it was not consented by the Magistrate having jurisdiction. He obtained a CD of the CCTV recording; the diary of Mst. Anab Zehra was sent for Forensic opinion, dispatched the cell phones to a forensic expert for forensic examination and obtained such data/report, obtained the mobile data of the appellants and witnesses and then furnished final challan of the case before the Magistrate having jurisdiction against the appellants and absconding accused Mst. Masooma Zainab Abidi. He was fair enough to say that he did not obtain the cell phones of appellant Mst. Anab Zehra and absconding accused Mst. Masooma Zainab Abidi. Evidence of the complainant, P.Ws Nadia and Qamar Zahid Siddiqui is based on information which was communicated to them by P.W Saeed Amin, therefore, it hardly needs discussion. If for the sake of arguments, evidence of P.W Saeed Amin is believed to be true, then it is only to the extent that he dropped the deceased and absconding accused Mst. Masooma Zainab Abidi at Zamzama to go into the flat of appellant Mansoor Mujahid. His evidence being weak could hardly be relied upon to base conviction simply for the reason that the very information was communicated by him to the police officials with delay having not been explained plausibly, which reflects deliberation and consultation. Surprisingly, none had seen the appellants shifting the dead body of the deceased from their flat to the place of its recovery though it was a populated area. The memos of arrest and recovery have already been discussed; therefore, evidence of Mashirs/witness to the recovery appears to be immaterial to be discussed. Evidence of Dr. Dileep Kumar Khatri is only to the extent that he obtained the blood samples of Sajid Nabi Malik for DNA purposes to confirm the identity of the dead body and the articles containing blood marks. His evidence is of little value to be discussed. Evidence of Mr. Hatim Aziz Solangi is only to the extent that he recorded the judicial confession of appellant Mst. Anab Zehra; it was recorded at her request without the involvement of the police. It was exculpatory. P.Ws Mst. Narmeen, Mst. Amina, Muhammad Azeem and Sajid Nabi Malik have been given up by the prosecution for no valid reason. The presumption which could be drawn from their non-examination in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that they were not going to support the case of the prosecution. In these premises, it would be hard to maintain the conviction and sentence against the appellants on the basis of call data, CDR reports and track record, which is alleged to be doubtful.

6. The discussion involves a conclusion that the prosecution has not been able to prove its case against the appellants beyond a shadow of a reasonable doubt and to such benefit, they are found entitled.

7. In case of Mehmood Ahmed and others v. the State and another (1995 SCMR 127), it was observed by the Apex Court 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".

1. In case of Abdul Khaliq v. The State (1996 SCMR 1553), it has been observed by the Apex Court that;

"----S.161---Late recording of statements of the prosecution witnesses under section 161 Cr.P.C. Reduces its value to nil unless delay is plausibly explained."

1. In case of Tahir Javed v. The State (2009 SCMR 166), it has been held by Apex Court that;

"---Extra-judicial confession having been made by accused in the presence of a number of other persons appeared to be quite improbable, because confession of such a heinous offence like murder was not normally made in the public".

1. In case of Muhammad Jamil v. Muhammad Akram and others (2009 SCMR 120), it has been held by the Apex Court that;

"When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."

1. In the case of Muhammad Mansha v. The State (2018 SCMR 772), it has been held by the Apex court that;

2025 Y L R 246

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio, J

Syed Qurban ali Shah and another---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. S-19, S-20 and S-21 of 2024, decided on 18th March, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 506(2), 337-A(i), 337-F(i) & 34---Sindh Arms Act (V of 2013), S.25---Attempt to commit qatl-i-amd, criminal intimidation, shajjah-i-khafifah, damiyah, common intention, possession of illicit arms---Bail, grant of---Further inquiry---At bail stage it could not be concluded definitely that whether the victim sustained two or three injuries, thus, discrepancy between the eye-witnesses testimony and the medical evidence, as per the preliminary assessment, warranted caution regarding the credibility of the prosecution's allegations---There were contradictory statements in the FIR and the medico legal report as to time and date of occurrence and medical examination---Eye-witness of the injuries during investigation did not corroborate the prosecution version, rather he stated that he was not present at the time of occurrence---Recovery of weapon was effected after arrest, however, police failed to associate mashirs of recovery from the local community, rather associated mashirs were closely associated with the complainant, who were not residents of the locality where the alleged recovery was made---Accused were in judicial custody since the day of their arrest---Challan had already been submitted to the court against the accused, indicating that they were not required for further investigation---Accused had no criminal history of being habitual offenders or previous convicts---Case against the accused persons called for further enquiry falling within the ambit of S.497(2), Cr.P.C.---Accused were granted bail, in circumstances.

Ali Sher and another v. The State 2022 PCr.LJ Note 33; Abdul Razzaq v. The State and another 2017 PCr.LJ Note 166; Chaudhry Nadeem Sultan v. the State through P.G. Punjab and another 2022 SCMR 663; Saad Zia v. The State and others 2023 SCMR 1898; Rizwan and 3 others v. The State 2022 MLD 716 and Ghulam Rasool v. The State 2022 MLD 1088 ref.

Muhammad Shabbir v. The State 2008 PCr.LJ 1338; Shah Tamas Khan and 5 others v. State through A.A.G. and another 2016 PCr.LJ Note 28 and Khial Muhammad v. The State through Shaheed Ullah 2011 PCr.LJ 1308 distinguished.

Syed Abdul Haqi Shah v. The State 1997 SCMR 32; Saeed Khan v. The State 2011 SCMR 1392; Muhammad Ijaz v. The State 2022 SCMR 1271; Resham Khan and another v. The State and another 2021 SCMR 2011; Ali Raza v. The State and others 2022 SCMR 1245 and Dilawar v. The State 2023 PCr.LJ 1684 rel.

Shoukat Ali Rahimoon and Afzal Kareem Virk for Applicants.

Shahzado Saleem, A.P.G. for the State.

Shah Nawaz Laghari for the Complainant.

Order

Amjad Ali Bohio, J.---These bail applications have been filed by above named applicants/ accused seeking post arrest bail in FIR No. 02/ 2024 registered under sections 324, 506(2), 337-A(i), 337-F(i), 34 P.P.C, FIR. Nos. 03/2024 and 04/ 2024 under section 25 of Sindh Armas Act at Police Station Dilbar Khan Mehar. Their bail application filed by them before Sessions Court were dismissed by Incharge Sessions Judge, Mirpurkhas, vide order(s) dated 01.02.2024 passed in Crl. Bail Applications No.136/2024, 134/ 2024 and 135/ 2024.

1. Succinctly, the prosecution story as narrated in the FIR is that on 07-01-2024 at 2230 hours, accused Golden alias Qurban Ali Shah and Johar Shah at the Otaque of complainant' Syed Iqbal Hussain Shah had caused fire arm injuries to Syed Pir Hussain Shah and farmer Jamal Shah, PW Bahoon Lashari and others had also seen three injuries sustained by Pir Hussain Shah. During investigation of the case, I.O. arrested the present applicants on 12.01.2024, who also produced 9 mm and 30 bore pistols which I.O recovered on their pointation on 14.01.2024, thereby FIR(s) Nos, 3 and 4 of 2024 under section 25 of Sindh Arms Act, 2013 were registered.

2. The learned counsel for the applicants contends that the FIR was delayed by approximately four (04) days, despite the distance of the police station to the scene as 17/18 kilometers away. It is asserted that the accusations against the applicants revolve around causing firearm injuries to the injured Syed Pir Ali Shah, yet it remains undetermined which of the applicants inflicted injury No. 2, declared as "Jurh Ghayr-jaifah Mutalahimah" under section 337-F(iii), P.P.C. The offense under this section carries a punishment of up to three years as Ta'zir and does not fall within the prohibitory clause of section 497 Cr,P.C. Moreover, it is noted that the alleged incident took place on 07-01-2024 at 22:30 hours, yet the injured were examined by the Medico-Legal Officer at Civil Hospital, Mirpurkhas, on 06-01-2024. The medical officer's report indicates only two injuries sustained by Syed Pir Hussain Shah according to both provisional and final medico-legal certificates. However, the FIR and the inspection memo of injuries purportedly describe three injuries inflicted on Syed Pir Hussain Shah. Lastly, the counsel contends that the case is of further inquiry and both applicants, who are real brothers, have been implicated due to enmity. In support of these contentions, reliance is placed upon relevant case laws viz. "Ali Sher and another v. The State (2022 PCr.LJ Note 33), "Abdul Razzaq v. The State and another" (2017 PCr.LJ Note 166), "Chaudhry Nadeem Sultan v. The State through P.G. Punjab and another" (2022 SCMR 663), "Saad Zia v. The State and others" (2023 SCMR 1898), "Rizwan and 3 others v. The State" (2022 MLD 716) and "Ghulam Rasool v. The State" (2022 MLD 1088).

3. On the contrary, the learned A.P.G and the counsel for the complainant countered the arguments put forth by the learned counsel for the applicants by opposing the bail applications. They asserted that the applicants are specifically named in the FIR with specific roles, and the injuries reportedly sustained by Syed Pir Hussain Shah are severe. Additionally, they highlighted the recovery of the weapons used in the crime based on the applicants' disclosures. Moreover, they emphasized that the offenses outlined in the FIR are non-bailable, thus warranting no leniency in granting bail. In support of their contention, the counsel for the complainant referred to relevant case law viz. "Muhammad Shabbir v. The State" (2008 PCr.LJ 1338), "Shah Tamas Khan and 5 others v. State through AAG and another" (2016 PCr.LJ Note 28) and "Khial Muhammad v. The State through Shaheed Ullah" (2011 PCr.LJ 1308).

4. Heard arguments and perused the record.

5. According to the contents of the FIR, the allegations against the applicants are that they both fired upon Syed Pir Hussain Shah, resulting in him sustaining three firearm injuries. However, this prosecution stance is contradicted by the medico-legal evidence of injured Syed Pir Hussain Shah, where the medical officer provided the following opinion:

Injury No.1. Lacerated punctured wound of entrance at the right side of the chest just above and medial to the nipples in size 1 c.m in diameter having blackening and inverted margins with fresh bleeding; area around wound was tender. Lacerated exit wound was present near the mid excillary line at the upper right side of the chest in size 02 c.m. in diameter having averted margins with profuse bleeding. Area around wound was tender while right upper limb was mobile but tender during active movement. Movement was restricted due to pain. Bandage was applied while stitches were not applied.

Injury No.2. Lacerated wound of entrance at postero-lateral side of the right upper one third of the lower legs in size 01 c.m. in diameter having blackening and inverted margins with fresh bleeding. Lacerated wound of exit at lateral side of upper one third of the right lower legs in size 02 c.m in diameter having averted margins with profuse bleeding. Area around wound was tender. Joints of the lower limb affected were mobile while movement was restricted specifically in right lower limb due to pain. Bandage was applied while stitches were not applied

1. In light of the aforementioned circumstances, it cannot be definitively concluded at this stage whether injured Syed Pir Hussain Shah sustained two or three injuries. Hence, the discrepancy between the eye-witness testimony and the medical evidence, as per the preliminary assessment, warrants caution regarding the credibility of the prosecution's allegations. In such circumstances, the facts of the case law relied upon by learned counsel for the complainant are quite distinguishable from the facts of the case in hand. In the case of "Syed Abdul Haqi Shah v. The State" reported as 1997 SCMR 32, the esteemed apex Court ruled that the petitioner should benefit from any discrepancies between the eye-witness testimony and the medical evidence, as observed from the tentative assessment thereof, when considering their application for bail. Similarly, in the case of "Saeed Khan v. The State" reported as 2011 SCMR 1392, the respected apex Court echoed similar sentiments by emphasizing that such discrepancies should be considered in favor of the petitioner.

"The record also highlights a glaring contradiction between the FIR/supplementary statement and the Medico-legal certificate issued in respect of the injured victim in as much as according to the FIR/supplementary statement the alleged victim had received three firearm injuries on his right lower leg at the hands of the culprits but according to the Medico-legal Certificate issued in respect of the alleged victim there was only one fireshot received by him on his lower leg. These factors have been found by us to be sufficient to put us to caution regarding veracity of the allegations levelled by the complainant party against the petitioner".

1. Further examination reveals that both the provisional and final Medico-legal Certificates of injured Syed Pir Hussain Shah and Jamal Din Shah, contain the date of their examination as 06-01-2024. Additionally, both certificates mention the date and time of the incident as 06-01-2024 at 10:11 p.m. This contradicts the time of the incident stated in the FIR, which is 10:30 p.m. Even if, I consider that the Medico-legal Officer erroneously recorded the date of the incident as 06-01-2024 instead of 07-01-2024, as per the FIR, the occurrence purportedly took place at 10:30 p.m.

2. According to the prosecution's narrative, PW Banhoon was purportedly witness to the injuries allegedly sustained by Syed Pir Hussain Shah. However, during the investigation, he did not corroborate the prosecution's version of events. Instead, he stated that he was not present at the time of the occurrence. This discrepancy casts further doubt on the credibility of the prosecution's story.

3. In the case of "Muhammad Ijaz v. The State and others" reported as 2022 SCMR 1271, the Honorable apex Court emphasized that the benefit of doubt, if established, can indeed be extended even at the bail stage. Similarly, in the case of "Resham Khan and another v. The State and another" reported as 2021 SCMR 2011, the Honorable apex Court reiterated this principle by stating that the fundamental purpose is to enable the accused to address the criminal prosecution against them rather than detaining them behind bars. It is a well-settled principle of criminal jurisprudence that every accused is presumed innocent until proven guilty, and the benefit of doubt can be granted to them even during the bail stage if the circumstances of the case necessitate it. The fundamental philosophy of criminal jurisprudence underscores that the prosecution bears the burden of proving its case beyond reasonable doubt, a principle applicable at all stages, including pre-trial- and the determination of whether the accused is entitled to bail. Similarly, in the case of "Ali Raza v, The State and others" reported as 2022 SCMR 1245, the Honorable apex Court reaffirmed this rationale, asserting that the benefit of doubt may be extended to an accused individual even at the bail stage if the circumstances of the case warrant it.

4. Taking into account the bail plea raised in the cases concerning the production of the crime weapons, it is noted that following their arrest, the accused expressed willingness during interrogation to produce the weapons used in the commission of the aforementioned offense. However, despite this knowledge, the police failed to associate mashirs of recovery from the local community, except for the mashirs closely associated with the complainant, who are not residents of the locality where the alleged recovery was made. This recovery was documented under a joint memo.) indicating that both accused had produced unlicensed pistols. It is significant to note that the FIR in Crime No. 3/2024 does not mention whether the 30-bore pistol allegedly produced by applicant Syed Qurban Ali Shah was unlicensed. While it is acknowledged that the maximum punishment provided for the offense under section 25 of the Sindh Arms Act, 2013, is imprisonment for up to ten years, discretion is vested with the trial court by the legislature, as held by this Court in the case of "Dilawar v. The State" (2023 PCr.LJ 1684), which reveals as under:

2025 Y L R 258

[Sindh]

Before Adnan-ul-Karim Memon, J

Mst. Amber Iqbal Khan and 2 others---Applicant

Versus

Syed Yasir Raza and 3 others---Respondents

Criminal Miscellaneous Application No. 688 of 2024, decided on 22nd July, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 491---Inherent power of High Court---Matter of custody of children---Scope---Petitioner had filed Criminal Miscellaneous Application against the order passed by Additional Sessions Judge in habeas corpus petition for production of her minor sons, whereby the Court handed over the custody of minors to the applicant, however with some conditions---Petitioner contended that the conditions could not be imposed in the habeas corpus petition, therefore the impugned order was liable to be set-aside---Validity---In the present case, the applicant-mother filed habeas corpus petition before the Additional Sessions Judge and the custody of the minors/detenues was handed over to applicant subject to conditions that she would surrender her and her children's Pakistani and Canadian passports and also execute a P.R Bond in the sum of Rs.500,000/- (Rupees Five Lac Only)---Applicant was further directed not to remove the custody of the minors/detenues from the territorial jurisdiction of the district---So far as the meeting of minors with their father was concerned, the applicant was directed to allow the father to meet with them on alternate days under the supervision of concerned SHO---Both the applicant and respondent were directed to approach the concerned Guardian Court to get custody of the minors---Now the father had applied for custody of the minors before the concerned Guardian Court---It was inappropriate for the Court under S.561-A, Cr.P.C, to encroach upon and arrogate itself the powers of a Guardian Court, which was the Court of competent jurisdiction under the law to decide all matters relating to custody of child(ren)---In the presence of an adequate remedy, the High Court was precluded from exercising jurisdiction under S.561-A, Cr.P.C---Purpose of filing present Criminal Miscellaneous Application had been served as the minors had already been produced before Additional Sessions Judge in habeas corpus Petition and custody had been handed over to the applicant; and conditions so imposed had already been lifted and were no more in the field, thus it could not be acted upon under the circumstances of the case---Prima facie the minors were with the applicant-mother and the issue of permanent custody was under adjudication before the Guardian and Wards Court instituted by the respondent-father for which the Court was first required to see whether it had jurisdiction to adjudicate the matter on the subject issue in the light of law---Issue of jurisdiction must be decided on a priority basis to end the anxiety of the parties for the reason that in cases, concerning the custody of a child, High Court is not required to go into the intricacies/technicalities of the matter in criminal jurisdiction and should confine its findings to the extent of the welfare of the child/minor which is a paramount consideration for which the proper forum is available under the law, which is subject to its jurisdiction---Criminal Miscellaneous Application was disposed of.

Shoukat Masih v. Mst. Farhat Parkash 2015 SCMR 731; Mst. Khalida Parveen v. Muhammad Sultan Mehmood PLD 2004 SC 1; Meer Jan Aberras Lehdeaho v. SHO PS Chung Lahore 2018 SCMR 427; Muhammad Faraz Shaikh v. Ms. Jaweria Shahani 2024 YLR 1330; Ms. Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lah. 293; Mrs. Alizbeth Dinshaw v. Arwan M Dinsha 1989 MLD 2209; Mst. Farhat Umair Hanif Ghanchi 2019 CLC 1311; Abid Hussain v. Rukhsana Munir 2020 YLR 1533; Thomson v. Thomson (1994) 3 SCR 551; Mst. Wafa Andaleeb v. Imran Bhatti 2015 PCr.LJ 875; Mahak Bibi v. Additional Sessions Judge 2014 MLD 1718; Mst. Reema v. SHO PS Darri Larkana PLD 2014 Sindh 598; Mahak Bibi v. Additional Session Judge and others 2014 MLD 1718; Sumayyah Moses v. SHO Faisalabad and others PLD 2020 Lah. 716 and Muhammad Younas v. Shahzad Qamar and others PLD 1981 Lah. 280 ref.

Shabana Naz v. Muhammad Saleem 2014 SCMR 343; Muhammad Owais v. Nazia Jabeen 2022 SCMR 2123 and Beena v. Raja Muhammad PLD 2020 SC 508 rel.

Syed Mustafa Mahdi, Faraz Akbar Shah and Syeda Javeria Hassan for the Applicant along with Applicant Mst. Amber Iqbal Khan and minors Syed Umer Yasir and Syed Khizar Yasir.

Muhammad Arif Sheikh for Respondent No. 1 along with Respondent No. 1 Syed Yasir Raza.

Syed Hussain Shah, Assistant AG.

Ms. Rubina Qadir, Deputy PG.

Order

Adnan-ul-Karim Memon, J.---The petitioner Mst. Amber Iqbal Khan has filed this Criminal Miscellaneous Application against the order dated 21.6.2024 passed by learned IV-Additional Sessions Judge, Karachi East in Habeas Corpus Petition No.301 of 2024 (Re: Mst. Amber Iqbal Khan v. Syed Yasir Raza and others), for production of her minor sons namely Syed Khizar Yasir and Syed Umair Yasir, whereby learned Presiding Officer has passed the following order: -

"... ...Accordingly, the custody of the above named minors/detenues is hereby ordered be handed over to applicant subject to conditions that she surrenders her Pakistani and Canadian passports and same passports of her children/ detenues above named and so also execute a P.R Bond in the sum of R.s.500,000/- (Rupees Five Lac Only). She shall not remove the custody of the above named minorsdetenues from the territorial jurisdiction of this district. The respondent No.1 shall also surrenders his Pakistani and Canadian passports. So far the meeting of minors with their father is concerned, the applicant shall allow him to meet with them on alternate day and such meeting shall be supervised by the concerned SHO. In this regard both the parties mutually shall fix the time and duration of such meeting and communicate the same to SHO concerned before meeting. Both the applicant and respondent No.1 shall have to approach the concerned Guardian Court for getting the custody of the minors regulated on opening of the courts after vacation and this order shall seize its effect as and when the parties file Guardian case before the concerned Guardian Court during the month of July 2024."

1. Per learned counsel, the conditions cannot be imposed in the Habeas Corpus Petition; therefore, the impugned order is liable to be set aside. In support of his contentions, learned counsel has relied upon the cases of Shoukat Masih v. Mst. Farhat Parkash 2015 SCMR 731, Mst. Khalida Parveen v. Muhammad Sultan Mehmood PLD 2004 SC 1, Meer Jan Aberras Lehdeaho v. SHO PS Chung Lahore 2018 SCMR 427, Muhammad Faraz Shaikh v. Ms. Jaweria Shahani 2024 YLR 1330, unreported judgment dated 28.12.2022 passed by the Islamabad High Court Islamabad in Writ Petition No. 3181 of 2022, Ms. Louise Anne Fairley v. Sajjad Ahmed Rana PLD 2007 Lahore 293, Mrs. Alizbeth Dinshaw v. Arwan M Dinsha 1989 MLD 2209, Mst. Farhat Umair Hanif Ghanchi 2019 CLC 1311, Abid Hussain v. Rukhsana Munir 2020 YLR 1533, Thomson v. Thomson (1994) 3 SCR 551, Mst. Wafa Andaleeb v. Imran Bhatti (2015 PCr.LJ 875) and Mahak Bibi v. Additional Session Judge (2014 MLD 1718). He prayed for allowing the Criminal Miscellaneous Application as prayed.

2. Learned counsel for the respondent has refuted the claim of the applicant with the assertion that the case reported as 2018 SCMR 427 (Mirjam Aberras Lehdeaho v. SHO PS Chung, Lahore), Mst. Reema v. SHO PS Darri Larkana PLD 2014 Sindh 598, Mahak Bibi v. Additional Session Judge and others 2014 MLD 1718, Sumayyah Moses v. SHO Faisalabad and others PLD 2020 Lahore 716 and Muhammad Younas v. Shahzad Qamar and others PLD 1981 Lahore 280 makes a Guardian Court as the final arbitrator to adjudicate upon the question of custody of a minor. He prayed for the dismissal of the Criminal Miscellaneous Application.

3. I have heard the learned counsel for the parties and perused the record with their assistance and case law cited at the bar.

4. The main thrust of the argument of the learned counsel for the applicant is that this Court under criminal jurisdiction is empowered to order for annulment of the proceedings, if any, pending before the Guardian and Wards Court and the powers can also be exercised under Section 561-A, Cr.P.C while handling the issue of the Habeas Corpus Petition. However, he admitted that ordinarily a petition under Section 491, Cr.P.C is not competent when there is no element of illegal custody by the father of his child but in the welfare of the child as well as to ensure that rights conferred upon the child or protected appropriately then this Court can also pass appropriate orders in exercise in her jurisdiction under Section 561-A Cr.P.C. Learned counsel emphasized that when the minor is foreigner then the family Court in Pakistan has no jurisdiction to decide the custody issue of minor.

5. It is well-settled law that the paramount consideration while deciding the question of custody of the minor is the welfare of the minor which has to be seen in view the age, sex, and religion. Welfare includes his moral, spiritual, and material well-being. While considering what is the welfare of the minor the court shall have regard to the age, sex, and religion of minor, the character and capacity of the proposed guardian, his nearness of kin to the minor, and the preference of the minor if he or she is intelligent enough to make it.

6. The invocation and passing of the writ of Habeas Corpus is enshrined in Article 199(1)(b)(i) of the Constitution whereby any person may file an application seeking the High Court to direct that "a person in custody within the territorial jurisdiction of the Court be brought before it so that the Court may satisfy itself that he is not being held in custody without lawful authority or in an unlawful manner". However, the invocation and passing of the writ is subject to the satisfaction of the High Court and no adequate remedy is provided by the law. However, in the present case, the applicant-mother filed Habeas Corpus Petition No.301 of 2024 before the learned IV-Additional Sessions Judge, Karachi East, and the custody of the minors/detenues was handed over to applicant subject to conditions that she surrenders her Pakistani and Canadian passports and same passports of her children/ detenues above named and so also execute a P.R Bond in the sum of Rs.500,000/- (Rupees Five Lac Only). She was further directed not to remove the custody of the minors/detenues from the territorial jurisdiction of the district South. So far the meeting of minors with their father is concerned, the applicant was directed to allow the father to meet with them on alternate days and such meeting shall be supervised by the concerned SHO. Both the applicant and respondent No.1 were directed to approach the concerned Guardian Court to get custody of the minors. Now the father has applied for custody of the minors before the concerned Guardian Court, which factum is also objected to by the applicant on the premise that the objectives of the Hague Convention are to protect children from wrongful international removals or retentions from their lawful custodians by requiring that Children be returned to their country of habitual residence for resolution of any custody dispute and in compliance of Article 12, the child be returned, and any dispute over permanent custody be litigated at the place of habitual residence and the learned Guardian Court should refrain from exercising the jurisdiction to the matter which is already sub-judice in another international forum; that the child in the age of Hizanat cannot be handed out to the respondent-father, this aspect is covered by a number of the judgments rendered by the Supreme Court where the welfare of child is held to be the key consideration.

7. Primarily, the G&W Act allows a person to be appointed the guardian of a minor "if it is satisfied that it is for the welfare of the minor ..." It is only once a person is appointed the guardian that they may seek recourse to Section 25 of the G&W Act for recovery of custody of a ward. Whatever the inter se relations between the parents may be, the purpose of a writ of Habeas Corpus when it comes to the production of a child is to ensure that the child is, at any given moment, capable of being produced before a Court of law. However, "... there can be no question that a Writ of Habeas Corpus is not to be issued as a matter of course, particularly when the writ is sought against a parent for the custody of a child. Clear grounds must be made out ..." The writ must only be issued in favor of a person who is entitled to custody of the child.

8. This right to custody, however, "is a dwindling right" which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is.

9. The Supreme Court in the case of Mst. Qurat-ul-Ain v. Station House Officer, Police Station Saddar Jalalpur Jattan, District Gujrat and others has held that the tendency of the High Courts to readily and unhesitatingly resort to extreme measures by involving law enforcement agencies in family matters cannot be appreciated, especially where no element of criminality is there and the child is in the lawful and rightful custody of the parent. Such actions cause unnecessary trauma and harassment for the concerned parent, especially where the concerned parent is the real father of the child. The High Court must exercise extreme care, caution, and circumspection in such matters. Only in exceptional and extraordinary circumstances, where all other methods and measures fail and an element of criminality, forced removal, kidnapping, and/or abduction of the child is involved. Issuance of a writ of habeas corpus in a custody matter should be an exception, and not the rule, as the G&W Act provides the Guardian Court with all requisite powers to pass and enforce its orders in matters of custody of the child(ren).

2025 Y L R 279

[Sindh (Sukkur Bench)]

Before Zulfiqar Ali Sangi, J

Faiz Muhammad---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-683 of 2024, decided on 24th October, 2024.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), Ss.302, 147, 148 & 149---Qatl-i-amd, rioting, rioting armed with deadly weapon, unlawful assembly---Post arrest bail, refusal of---Prompt FIR---No chance of deliberation and consultation---Applicant/accused had been attributed role of direct firing upon the deceased and prosecution witnesses supported the case of the complainant---Two empties were recovered from the place of incident, which as per FSL report matched with the pistol recovered from the applicant---With similar role pre-arrest bail of the co-accused had been rejected---At bail stage deeper scrutiny of material on record is unwarranted as that would affect the merits of the case at the trial---Tentative assessment of material available on record prima facie connected the applicant with the commission of offence, which fell within the ambit of prohibitory clause of S.497, Cr.P.C.---Post arrest bail application was dismissed, in circumstances.

2021 SCMR 2011; 2011 SCMR 1392; 1980 SCMR 784; 1985 SCMR 1946; 1997 SCMR 32; 2014 PCr.LJ 1430 and 2014 YLR Note 66 ref.

Haji Gulu Khan v. Gul Daraz Khan and another 1995 SCMR 1765 rel.

Muhammad Tarique Maitlo for Applicant.

Nadeem Ahmed Malik for the Complainant.

Zulfiqar Ali Jatoi, Additional P.G. for the State.

Date of hearing: 24th October, 2024.

Order

Zulfiqar Ali Sangi, J.---Through instant Criminal Bail Application applicant Faiz Muhammad Kalhoro seeks post-arrest bail in Crime No.199 of 2023, registered at P.S, B-section, Khairpur under sections 302, 147, 148 and 149 P.P.C. after his bail plea was rejected by learned trial Court vide order dated 07.05.2024.

1. The allegation against the applicant, as per FIR is that he along with co-accused had directly fired upon deceased Shahzado, result thereof, he died at the spot.

2. The bail is sought on the grounds that there appears old enmity between the parties, wherein one Hakim Ali was murdered in the year 2018 and FIR No.205 of 2018 was registered; that no specific role is assigned to the present applicant in FIR and there appear general allegations against all the accused for causing fire shots to the deceased; that the ocular evidence is not in support with the medical evidence and the recovery of crime weapon has been foisted upon the applicant. Lastly, it is contended that trial has yet not commenced due to absence of complainant and his witnesses. In support of his contentions, he relied upon cases reported in 2021 SCMR 2011, 2011 SCMR 1392, 1980 SCMR 784, 1985 SCMR 1946,1997 SCMR 32, 2014 PCrLJ 1430 and 2014 YLR Note 66 Sindh.

2025 Y L R 342

[Sindh (Hyderabad Bench)]

Before Mohammad Karim Khan Agha and Omar Sial, JJ

Nazar Muhammad and others---Appellants

Versus

The State through NAB and others---Respondents

Criminal Accountability Appeal No. D-09, 11, 12, 13, 14, 15, 16 and 20 of 2021, decided on 23rd May, 2024.

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

----S. 10---Qanun-e-Shahadat (10 of 1984), Arts. 72 & 74---Corruption and corrupt practices---Appreciation of evidence---Documentary evidence---Photocopies---Proof of contents of documents---Primary evidence---Secondary evidence---Accused were charged for causing loss to Public Exchequer of an amount of Rs. 312.5 Million by revising the layout of the society, thus committing the offence of corruption and corrupt practices---Record showed that the original lay out plan was never exhibited in evidence or even seen by the Trial Court as admitted by Investigating Officer---Only an attested copy of the original lay out plan was exhibited---No reason was given as to why the prosecution was not able to exhibit the original lay out plan or even showed it to the Court and then return it as this was the usual practice---It was not known as to where the attested copy came from and its veracity remained unproven---Revised lay out plan was not exhibited at trial or even produced at Court for the Court to see---Not even an attested copy of the revised lay out plan was produced instead only an ordinary photo copy of the carbon copy was produced without any explanation as to why the original or even an attested copy of the revised lay out plan could not be produced---It was not known where the photocopy of carbon copy of the revised plan came from and its veracity also remained unproven---Under these circumstances said copy documents were inadmissible in evidence by virtue of Arts. 72 to 74 of the Qanun-e-Shahadat, 1984 and ought to have been excluded by the Trial Court from consideration---Thus both of those documents (copies of the original lay out plan and revised lay out plan) were inadmissible in evidence and were to be excluded from consideration as they remained unproven---Hence it was almost impossible to prove which areas were, if any, converted from amenity plots to commercial/residential plots or where they were relocated to within the society and whether it was in fact amenity plots which were sold to the beneficiary appellants---Appeal against conviction was allowed, in circumstances.

The State v. M. Idress Ghauri 2008 SCMR 1118; Sarwar Shakir v. The State 1992 MLD 1253; Remseh Udeshi v. The State PLD 2004 Kar 224; M. Idress Ghauri v. The State NLR 2008 Crim 555; Mir Munawar Ali Talpur v. The State PLD 2003 SC 46; Ramesh M. Udeshi v. The State 2005 SCMR 648; Muhammad Siddique Al Farooq v. The State PLD 2002 Kar. 24; Mansoor UL Haq v. Government of Pakistan PLD 2008 SC 166; NAB v. Khalid Ahmed Khan Kharral 2013 MLD 849; Sh. Khalid Mehmood and 03 others v. The State and 02 others 2006 PCr.LJ 1115; Muhammad Masood Chishti v. Chairman NAB and others PLD 2001 Islamabad 350; The State v. Muhammad Idrees Ghauri and others 2008 SCMR 1118; Muhammad Ikhlaque Memon v. The State Criminal Accountability Appeal No. 38 of 2018, Ayub Masih v. State PLD 2002 SC 1048; Khalid Mehmood v. State 2011 SCMR 664; Mazhar Ibnehassan Siddiqui and 2 others v. The State and another 1997 PCr.LJ 130; Munir Ahmed alias Munni v. The State 2001 SCMR 56; Jagin and 2 others v. The State PLD 2001 Quetta 64; Mian Nisar Akhtar and another v. The State 2002 MLD 372; Ashraf and 4 others v. The State 2004 PCr.LJ 42; Salamat Mansha Masih v. The State and another PLD 2022 SC 751; Muhammad Naeem Khan and another v. Muqadas Khan (dec) through L.Rs and another PLD 2022 SC 99; Muhammad Shakeel alias Chotoo v. The State 2024 MLD 286; Raheel v. The State 2024 PCr.LJ 121; Malik Din v. Chairman NAB 2019 SCMR 372; Syed Muhammed Adnan v. The State 2023 PCr.LJ 1356 and Muhammad Azam Brohi v. National Accountability Bureau (The State) 2024 PCr.LJ 745 ref.

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

----S. 10---Corruption and corrupt practices---Appreciation of evidence---Accused were charged for causing loss to public exchequer of an amount of Rs. 312.5 million by revising the layout of the society, thus committing the offence of corruption and corrupt practices---Record showed that the accused/Administrator of society did not seek permission for the change of amenity plots to commercial plots and that such permission had already been applied for by Secretary of the Society which was approved and this was before the board of the Society was superseded and before the accused was appointed Administrator, and as such he had nothing to do with the initial process of revising the original lay out plan---Surprisingly, the person who seemed to have started the whole revision of the original lay out plan process i.e. the Secretary was not made an approver---Admittedly Secretary denied his signatures on these requests for change of lay out plan, however, the Investigating Officer did not arrange for his signatures to be examined by a hand writing export---Trial Court did not even seek to compare the two signatures of Secretary---So it appeared from the evidence that it was the witness who was the Secretary of the Society who initially sought to revise the lay out plan---According to a witness the letter dated 07.01.2013 was apparently signed by Secretary and the letter dated 04.01.2013 was signed by him and both said letters requested approval of lay out plan, and thus it was not appellant/Administrator who sought the approval---Secretary/witness did not even know who signed the revised layout plan---Signature of appellant/ Administrator was not on the revised lay out plan---Overall the evidence of Secretary of the Society was far from confidence inspiring and had grave doubts as to its reliability and truthfulness and certainly led to doubts about the role of appellant/ Administrator in seeking approval to change the layout plan---Appeal against conviction was allowed, in circumstances.

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

----S. 10---Corruption and corrupt practices---Appreciation of evidence---Defective investigation---Accused were charged for causing loss to public exchequer of an amount of Rs. 312.5 million by revising the layout of the Society, thus committing the offence of corruption and corrupt practices---Record showed that there was doubt over the credibility of some of the witnesses who gave evidence---Investigating Officer admitted that all the five witnesses were facing NAB inquiries at the time of their evidence and one had even been convicted and another had already had his Voluntary Return (VR) accepted so they had every reason to support the prosecution case in return for lenient treatment in the NAB cases which they were facing---Even the Investigating Officer of the case was dismissed on account of misconduct which casted doubt on his entire investigation---Appeal against conviction was allowed, in circumstances.

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

----S. 10---Corruption and corrupt practices---Appreciation of evidence---Financial loss to public exchequer not established---Accused were charged for causing loss to public exchequer of an amount of Rs. 312.5 million by revising the layout of the society, thus committing the offence of corruption and corrupt practices---Plots were sold by appellant/Administrator after advertising as confirmed by other witness---Another witness in his evidence stated that all sales of the plots were done after following all codal formalities---Sale in any event was not done on a pick and chose basis as the sale was through auction following an advertisement---Valuation of the plots was made by a witness/Mukhtiarkar who relied upon a report from a local Tapedar who did not give evidence and whose report was not exhibited---Mukhtiarkar admitted in his evidence that it was not the job of a Revenue Officer to ascertain the market value of the property as such any reliance could not be placed on his valuation of the plots---Thus it could not be concluded that the plots were sold on throwaway prices as no proper market valuation of the plots was made by an expert who was qualified to do the same---In fact the value of the adjacent plots was not even ascertained or a sale deed in respect of such plots ever collected to consider the market prices of the plots nor attempts were made to ascertain the actual market value of the plots as admitted by the Investigating Officer---Prosecution alleged that the plots were allotted to relatives, favorites and kith and kin of appellant/Administrator, however there was no evidence to that effect---All the evidence suggested that all the beneficiaries who purchased the plots were bona fide purchasers for valuable consideration without notice that there was any defect in their title---Investigating Officer himself had conceded in his evidence that no loss was caused to the government exchequer---Beneficiaries also had no criminal intent in buying the plots as they would not have known about any alleged criminality by accused persons in allegedly revising the original plan and converting amenity plots into commercial plots in order to make a profit---Precise plot numbers which the beneficiaries allegedly purchased at throwaway prices were not even put to them during their S.342 Cr.P.C statements nor they were confronted as to whether they were favorites or kith and kin of appellant/Administrator and as such any evidence to that effect was discarded and could not be used to convict them---Appeal against conviction was allowed, in circumstances.

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

----S. 10---Corruption and corrupt practices---Appreciation of evidence---Co-accused acquitted on same set of evidence---Accused were charged for causing loss to public exchequer of an amount of Rs. 312.5 Million by revising the layout of the Society, thus committing the offence of corruption and corrupt practices---Notable that one co-accused beneficiary who was the son of one of the accused persons who had allegedly received a plot in return for his father/appellant approving the revised lay out plan and whose case was on a worse footing than the current beneficiaries/appellants, was acquitted on the same set of evidence---No appeal against the acquittal of said co-accused had been filed and as such the appellants/beneficiaries were entitled to equal treatment of acquittal from the charge---Appeal against conviction was allowed, in circumstances.

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

----S. 10---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Corruption and corrupt practices---Appreciation of evidence---Material witnesses given up---Presumption---Accused were charged for causing loss to public exchequer of an amount of Rs. 312.5 million by revising the layout of the Society, thus committing the offence of corruption and corrupt practices---As per record, the prosecution gave up eight witnesses without explanation---Under Art.129(g) Qanun-e-Shahadat, 1984, an adverse inference could be drawn that in their evidence they would not have supported the prosecution case---Appeal against conviction was allowed, in circumstances.

Raj Ali Wahid, Amer Raza Naqvi and Muhammad Yousaf Laghari for Appellants (on bail) (in Criminal Accountability Appeal No. 09 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 09 of 2021).

Sajjad Ahmed Chandio for Appellant (on bail) (in Criminal Accountability Appeal No. 11 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 11 of 2021).

Raj Ali Wahid for Appellants (on bail) (in Criminal Accountability Appeal No. 12 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 12 of 2021).

Raj Ali Wahid for Appellants (on bail) (in Criminal Accountability Appeal No. 13 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 13 of 2021).

Isharat Ali Lohar for Appellant (on bail) (in Criminal Accountability Appeal No. 14 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 14 of 2021).

Riazat Ali Sahar for Appellant (on bail) (in Criminal Accountability Appeal No. 15 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 15 of 2021).

Raj Ali Wahid for Appellant (on bail) (in Criminal Accountability Appeal No. 16 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 16 of 2021).

Noor-ul-Haq Qureshi and Ammar Ahmed for Appellant (in Criminal Accountability Appeal No. 20 of 2021).

Niaz Hussain Mirani Special Prosecutor NAB for the State (in Criminal Accountability Appeal No. 20 of 2021).

Dates of hearing: 2nd, 9th and 15th May, 2024.

Judgment

Mohammad Karim Khan Agha, J.---The appellants named above have assailed the impugned judgment dated 27.01.2021 passed by learned Accountability Court at Hyderabad in References Nos.11 of 2015 whereby the appellants and other co-accused faced trial. After full dressed trial, the co-accused Shoaib Abbas was acquitted by the learned trial court while the present appellants were convicted and sentenced in the following manner:-

i. Accused Barkat Ali Junejo is convicted under section 10 of the NAO, 1999 read with Section 265-H(ii) Cr.P.C and sentenced to suffer R.I for seven years and to pay fine of Rs.4.790 Millions. In case of default in non-payment of fine, same shall be recovered as arrears of Land Revenue.

ii. Accused Asghar Abbas Sheikh is convicted under section 10 of the NAO, 1999 read with Section 265-H(ii) Cr.P.C and sentenced to suffer R.I for five years and to pay fine of Rs.5,00,000/- [Rupees Five Lac]. In case of default in non-payment of fine, same shall be recovered as arrears of Land Revenue.

iii. Accused Imran Mehdi Memon is convicted under section 10 of the NAO, 1999 read with Section 265-H(ii) Cr.P.C and sentenced to suffer R.I for five years and to pay fine of Rs.5,00,000/- [Rupees Five Lac]. In case of default in non-payment of fine, same shall be recovered as arrears of Land Revenue.

iv. Accused persons each namely Nazar Muhammad Junejo, Hyder Ali, Mir Shah Muhammad, Abdul Raheem Baloch, Mohib Ali, Allah Dino, Ghulam Muhammad Dal, Ali Anwar, Muhammad Khan, Liaquat Ali, Muhammad Amir Tunio, Abdul Latif Junejo, Faryad Hussain, Hayat Muhammad, and Ayaz Hussain Laghari, are convicted under section 10 of the NAO, 1999 read with Section 265-H(ii) Cr.P.C and sentenced to suffer R.I for three (03) years each and to pay fine of Rs.2,00,000/- [Rupees Two Lac] each. In case of default in non-payment of fine, same shall be recovered as arrears of Land Revenue.

v. All the accused were also debarred from public office and taking loans from financial institutions as set out in the NAO 1999.

1. It is the case of prosecution as per References Nos.11 of 15 as mentioned above in brief that, accused Barkat Ali Junejo (Administrator of Sindh University Employees Cooperative Housing Society) in connivance with co-accused persons each namely, Asghar Abbas Sheikh (DG Sehwan Development Authority) and Imran Mehdi Memon since deceased MD Sindh Co-opetative Housing Society) have illegally revised the layout plan of Sindh University Employees Cooperative Housing Society, Jamshoro Phase-I (the Society) and later on illegally allotted amenity / commercial plots to accused persons from Sr. No.4 to Sr. No.24 (beneficiaries of the plots). The total value of plots on registered deeds was Rs.4.790 M whereas accused Barkat Ali Junejo has received amount of Rs.27.794 M from the beneficiary persons and only Rs.2.051 M were deposited in Sindh University Employees Cooperative Housing Society, Jamshoro account rarely used for the society, later on the accused Barkat Ali Junejo misused and embezzled whole amount of Rs.2.051 M. Whereas the loss caused to Public Exchequer / society is assessed as Rs.312.5 M. Thus the accused persons have committed the offence of corruption and corrupt practices as envisaged under section 9(a) of the National Accountability Ordinance, 1999 punishable under section 10 of the ordinance and schedule thereto.

2. The trial Court framed charge against all the accused mentioned in the subject reference to which, they pleaded not guilty and claimed to be tried.

3. At the trial prosecution examined 14 witnesses and exhibited numerous documents and other items in order to prove its case. Statements of accused were recorded under section 342 Cr.P.C., wherein they denied the prosecution allegations levelled against them and claimed their false implication in the subject reference; however, none of the accused in order to disprove the prosecution allegation has examined himself on oath nor produced any DW in his defense.

4. Learned trial Judge after hearing the learned counsel for the respective parties and evaluating the evidence available on record convicted and sentenced the appellants as set out in the earlier para of this judgment. Hence the appellants have filed these appeals against their convictions.

5. Learned trial court in the impugned judgment has already reproduced the evidence in detail and as such there is no need to repeat the same here so as to avoid duplication and unnecessary repetition.

6. Learned counsel for the appellant Barkat Ali has mainly contended that he did not seek permission for the change of amenity plots to commercial plots and that such permission had already been applied for by Saeed Ahmed in his capacity as Secretary of the Society vide his letter dated 4.01.2013 which was approved on 24.01.2013 by AD to the Secretary SDA which was before the board of the society was superseded and before Barkat Ali was appointed administrator and as such he had nothing to do with the initial process of revising the plan. After becoming administrator he continued with the work of amending the original plan and got permission to do the same from appellant Imran Mehdi which actually lead to an increase in the amenity area but simply changed its location and then sold the plots at market value as permitted by the Circular through advertisement and open auction as per market value; that the funds were paid into the joint account of JS bank which he operated jointly with PW 10 Sattar and as such he did not make any person gain from the transaction and there is no evidence that he received any pecuniary advantage and as such based on all or any of the above reasons he should be acquitted by being extended the benefit of the doubt. In support of his contentions he placed reliance on the case of The State v. M. Idress Ghauri (2008 SCMR 1118).

7. Learned counsel for appellant Asghar Abbas Shaikh who was DG of Sewan Development Authority (SDA) has mainly contended that he did not approve the revised lay out plan; the revised layout plan produced at trial was a photocopy and no explanation was given by the trial court as to why it was admissible when the original had not been produced and as such the revised layout plan was inadmissible and could not be relied upon; that the evidence suggests that even otherwise the revised amenity plot area in the revised plan was increased from 5% to 10%; that he had nothing to do with the sale of the plots which was done legally through advertisement; that the allegation that he benefited by revising the layout plan though his son co-accused Shoaib Abbas Shaikh being given a plot is belied by the fact that his co-accused son was acquitted of the charge of being a beneficiary and the NAB has not filed any appeal against his acquittal; that the star prosecution witnesses were either accused in other NAB references or had been convicted in other NAB references and as such no credibility can be given to their evidence and as such based on all or any of the above arguments the appellant 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 Sarwar Shakir v. The State (1992 MLD Kar. 1253), Remseh Udeshi v. The State (PLD 2004 Kar. 224) and M. Idress Ghauri v. The State (NLR 2008 Crim 555).

8. Learned counsel for appellant Imran Mehdi (now deceased) who was Ex MD of Sindh Co-operative housing society has contended that he did not give permission to either amend the lay out plan or for the sale of plots through his letter dated 25.06.2013 which letter was misconstrued and even otherwise out of abundant caution he withdrew the letter 6 months later which shows that he never had any criminal intent; that there was no evidence that he received any benefit, monetary or otherwise; that the evidence of the main witnesses is unreliable and lacks credibility as most of them were facing NAB references or were NAB accused at the time when they gave evidence; that since this was a private society no loss was caused to the Government exchequer and as such based on all or any of the above arguments the appellant should be acquitted of the charge by being extended the benefit of the doubt.

9. Learned counsel for appellant beneficiaries Nazar Muhammad Junejo, Hyder Ali, Mir Shah, Abdul Raheem Baloch, Mohib Ali, Allah Dino, Ghulam Muhammad, Ali Anwar, Muhammad Khan, Shoaib Abbas, Liaquat Ali, Abdul Latif, Faryad Hussain, Hayat Muhammad and Ayaz Hussain Leghari have contended that NAB had no jurisdiction in this case as the Society was a private society which operated through funds which the society self generated and had its own rules for dealing with any potential wrong doing by its members; there was no loss to the Government Exchequer and it was not a case of cheating the public at large; that being a private society there was no bar on amending the layout plan; that no original layout plan or revised lay out plan was ever produced and as such the photocopy documents which were produced at trial were inadmissible in evidence; that even otherwise there was no bar in amending the lay out plan and no objection had been received for amending the layout plan from the master plan department; that area of amenity land was increased from 5% to 10%; that there is no evidence that the plots were sold at throw away prices as the auction was carried out in accordance with law; that the valuation of the plots relied upon by NAB was excessive which was been based on a report of a Makhtiarkar who had relied on a report of a tapedar which had not been exhibited neither of whom had any experience in valuing plots based on market value; that co-accused beneficiary Shoaib Abbas Shaikh who was the son of the one of the main accused Asghar Abbas Shaikh who was DG of Sewan Development Authoirty (SDA) whom there was more evidence against was acquitted of the charge and since the prosecution has not proven that any of the accused are related to one of the other main accused Barkat Ali or were his favorites or were his Kith and Kin they should also be extended the same treatment of the acquitted co-accused beneficiary Shoaib Abbas Shaikh who was acquitted on the same set of evidence; that one of the beneficiaries Mir Shah Muhammed Talpur's plot came from Phase II which lay out plan was not revised; that the case of the prosecution is that the lease deeds of the beneficiaries were leased out by appellant Barkat Ali between 16.09.2013 to 18.09.13 however this was not the case in respect of some beneficiaries, for example appellant Hyat Muhammed's lease was executed on 18.11.2013; that even if the main appellants Barkat Ali, Asghar Shaikh and Imran Mehdi had acted illegally the beneficiaries had no knowledge of the same and as such when they purchased the property through advertised auction at market value they had no criminal intent to commit any crime and as such for any or all of the above reasons the appellant beneficiaries named above should be acquitted of the charge by being extended the benefit of the doubt. In support of their contentions, they placed reliance on the cases of Mir Munawar Ali Talpur v. The State [PLD 2003 SC 46], Ramesh M. Udeshi v. The State [2005 SCMR 648], Muhammad Siddique Al Farooq v. The State [PLD 2002 Karachi 24], Mansoor Ur Haq v. Government of Pakistan [PLD 2008 SC 166], Ramesh Udeshi v. The State [PLD 2004 Karachi 224], NAB v. Khalid Ahmed Khan Kharral [2013 MLD 849], Sh. Khalid Mehmood and 03 others v. The State and 02 others [2006 PCr.LJ 1115], Muhammad Masood Chishti v. Chairman NAB and others [PLD 2001 Islamabad 350], The State v. Muhammad Idrees Ghauri and others [2008 SCMR 1118], an unreported case of Muhammad Ikhlaque Memon v. The State passed in Cr. Acct. Appeal No. 38 of 2018, Ayub Masih v. State (PLD SC 2002 1048) Khalid Mehmood v. State (2011 SCMR 664), Mazhar Ibnehassan Siddiqui and 2 others v. The State and another [1997 PCr.LJ 130 Karachi], Munir Ahmed alias Munni v. The State [2001 SCMR 56], Jagin and 2 others v. The State [PLD 2001 Quetta 64], Mian Nisar Akhtar and another v. The State [2002 MLD 372 Karachi], Ashraf and 4 others v. The State [2004 PCr.LJ 42], Salamat Mansha Masih v. The State and another [PLD 2022 SC 751], Muhammad Naeem Khan and another v. Muqadas Khan (dec) through L.Rs and another [PLD 2022 SC 99], Muhammad Shakeel alias Chotoo v. The State [2024 MLD 286] and Raheel v. The State [2024 PCr.LJ 121 Sindh].

10. On the other hand Special Prosecutor NAB fully supported the impugned judgment. He contended that the prosecution had proved its case beyond a reasonable doubt against all the appellants based on reliable ocular evidence which was supported by documentary evidence and as such the appeals be dismissed. In support of his contentions he placed reliance on the cases of Malik Din v. Chairman NAB (2019 SCMR 372), Syed Muhammed Adnan v. The State (2023 PCr.LJ 1356) and Muhammad Azam Brohi v. National Accountability Bureau (The State) [2024 PCr.LJ 745 Sindh].

11. We have carefully considered the contentions of the parties, perused the evidence on record and considered the case law cited at the bar.

12. At the outset it is doubtful whether the NAB had the jurisdiction to inquire into the affairs of a private Society which was self financed and had its own rules for dealing with irregularities/potential illegalities of the nature alleged in the reference where no loss was caused to the Government exchequer but in any event we shall decide these appeals on merit through this one common judgment.

13. The case essentially breaks down into two parts:

(a) The illegal revision of the lay out plan of the Society by appellants Barket Ali, Asghar Shaikh and Imran Mehdi (now deceased) that enabled amenity plots to be used as commercial plots and

(b) The sale of these converted amenity plots to the beneficiary appellants on throwaway prices by appellant Barkat Ali to his favorites and kith and kin who then pocketed the purchase price for these plots.

Turning to the illegal revision of the lay out plan of the Society by appellants Barket Ali, Asghar Shaikh and Imran Mehdi (now deceased) which enabled amenity plots to be used as commercial plots.

1. There are two crucial documents in connection with this first aspect of the case. The first is the original lay out plan of the Society and the second is the revised lay out plan of the Society. It was essential that these documents were tendered admissibly into evidence as they would show what the original lay out plan was in terms of (a) land earmarked residential areas (b) land earmarked for commercial areas and (c) land earmarked for amenity areas and how this original lay out plan had been changed, if at all, concerning the aforesaid earmarked area's. Incredibly, the original of the original lay out plan was never exhibited in evidence or even seen by the trial court as admitted by PW 14 IO Muhammed Umair. Only, an attested copy of the original lay out plan was exhibited. No reason was given as to why the prosecution was not able to exhibit the original lay out plan or even show it to the court and then be returned as is the usual practice and why it had to revert to an attested copy. Where the attested copy came from and its veracity remained unproven. With regard to the second document the revised lay out plan the original was not exhibited at trial or even produced at court for the court to see and return. Not even an attested copy of the revised lay out plan was produced instead only an ordinary photo copy of the carbon copy was produced with out any explanation as to why the original or even an attested copy of the revised lay out plan could be produced. Where the photocopy of carbon copy which the photo copy of the revised plan came from and its veracity remained unproven Under these circumstances these copy documents were inadmissible in evidence by virtue of Articles 72 to 74 of the Qanun-e-Shahadat Order 1984 and ought to have been excluded by the trial court from consideration and thus for the reasons mentioned above we find both of these documents (copies of the original lay out plan and revised lay out plan) to be inadmissible in evidence and exclude them from consideration as they remained unproven. Hence it is almost impossible to prove which areas were, if any, converted from amenity plots to commercial/ residential plots or where they were relocated to within the society and whether it was in fact amenity plots which were sold to the beneficiary appellants which creates doubt over the revision of the lay out plan and which parts of it were actually revised and whether if the plots which were sold were amenity plots or otherwise.

2. Even the impugned judgment this confirmed this fact at Para's 61 and 62 in the following terms;

"61 In view of above discussion in the preceding point that prosecution has proved the charge against all accused persons except against accused Shoaib Abbas son of Asghar Abbas Shaikh. Prosecution has not been able to produce the original copy of subject layout plan allegedly got approved by accused Barkat Ali Junejo as according to record the subject process was already undergoing." (bold added)

1. And at Para 62;

"62. In the similar manner, accused Asghar Abbas Shaikh son of Maqbool Ahmed is also convicted under section 10 of the NAO, 1999 read with section 265-H (ii) Cr.P.C and sentenced to suffer five years Rigorous Imprisonment and to pay fine of Rs.5 lacs while taking lenient view on the ground that original subject layout plan allegedly signed by him has not been produced by prosecution."

1. PW 15 Muneer Ahmed in his evidence only exhibited original copy of tracing of approved revised lay out plan not the original or even an attested copy or copy of it.

2. It would appear that the trial court has erred in that instead of using the non production of the original lay out plan or admissible secondary evidence in accordance with the law of evidence as a ground for acquittal as the attested/photo copy documents were not proved in accordance with the law it instead erred in using this crucial evidentiary omission as a ground for mitigation.

3. In any event as PW 9 Muhammed Ashraf stated in his evidence there was no absolute bar to revising the lay out plan in the following terms;

"It is correct that there is no any bar for revising of the layout plan. It is correct that before approval of any proposed plan is scrutinized by the Master Plans Department. It is also correct that it is the responsibility of Master Plan Department. In examine the proposed plan for its technicalities and legal requirements and that if the Master Plan department raised objection on the proposed layout plan that it cannot be approved. It is correct that I did not find any objection from the Master Plan Department so as to is technicalities and legal requirements." (bold added)

1. PW 15 Muneer Ahmed also in his evidence stated that "the original lay out plan could be revised ...... and that the subject land is the property of the Society not Government. It is correct that the Government has not reserved any piece of the land for amenity purposes which is the subject land of the Society.It is correct that the areas in the amenities in the original lay out plan and in the revised plan were suggested by the Society itself (bold added).

2. Para (xi) of Circular dated 15.07.2013 which applies when a housing society is superseded, as in this case, and an Administrator is appointed also tends to support this contention that plots could be transferred which states as under;

"(xi) Only genuine cases of transfer of plots be processed and forwarded to the office of the managing director, Sindh Co-operative Housing Authority for grant of NOC."

1. PW 9 Muhammed Ashraf also confirmed that the amenity space in the revised master plan had been increased from 5 to 10% in his evidence as under;

"I further say that according to this revised layout plan area reserved for amenities is 10% of the total area. It is correct to suggest that the reserved area for the amenities was increased by 5.5% in the revised layout".

1. This tends to indicate that the location of the amenity plots might have been changed or if an amenity plot was changed to a commercial plot a larger commercial/residential plot was changed to an amenity plot as in the end there was a 5% increase in the amount of land ear marked for amenity plots within the society and as such amenity areas did not lose out on account of any revisions which might have been made to the original plan and in fact their area was increased and as such no loss or detriment was caused to the society in this respect.

2. It is alleged by the prosecution that appellant Barkat Ali whilst administrator of the Society after the management had been superseded started the process of revising the lay out plan to fulfill his own nefarious designs in collusion with co-appellants Asghar Shaikh and Imran Mehdi. However this aspect of the prosecutions case is undermined by the evidence of PW 14 Muhammed Umair who was the IO of the case in the following terms;

"It is correct to suggest that the before the said date accused Barkat Ali Jujnejo had nothing to do with the affairs of the subject society. It is correct to suggest that as per letter No.03/13/SUECHS dated 07-01-2013 available in the folder shows that SUECHS applied for revision of layout plan accused Barkat Ali Junejo had nothing to so with the affairs of the society. It is incorrect to suggest that on 04-01-2013 Secretary of the society Saeed Ahmed also wrote a letter to Sehwan Development Authority for revision of the layout plan of the society. Vol: says that we have recorded the statement of Saeed Ahmed Burdi and he denied the signature on the said letter moreover, no outward number is mentioned therein.

I did not find any document showing that such letter was received in the office of SDA other than the date mentioned in the said letter. I did not get the signature of Saeed Ahmed Burdi by any handwriting expert. There is no any rule of Sindh Building Control Authority that the layout plan once approved cannot be revised".

1. The evidence suggests that appellant Barkat Ali did not seek permission for the change of amenity plots to commercial .plots and that such permission had already been applied for by PW 5 Saeed Ahmed in his capacity as Secretary of the Society vide his letter dated 4.01.2013 which was approved on 24.01.2013 by AD to the Secretary SDA (not Asghar Shaikh) which was before the board of the society was superseded and before appellant Barkat Ali was appointed administrator and as such he had nothing to do with the initial process of revising the original lay out plan. Surprisingly the person who seems to have started the whole revision of the original lay out plan process Saeed Ahmed was made a PW and not even an approver. Admittedly PW 5 Saeed Ahmed denied his signatures on these requests for change of lay out plan however the IO did not arrange for his signatures to be examined by a hand writing export. The trial court judge it appears did not even seek to compare the two signatures of PW 5 Saeed Ahmed. So it appears from the evidence that it was PW 5 Saeed Ahmed who was the secretary of the Society who initially sought to revise the lay out plan and had it revised (and not appellant Barkat Ali) especially as PW 9 Muhammed Ashraf confirms in his evidence that the 07.01.2013 letter was sent by PW 5 Saeed Ahmed who was the secretary and Barkat Ali had nothing to do with the society at that time which is in line with the evidence of the IO. PW 5 Saeed Ahmed also states in his evidence that he was not aware of any changes in either the original or the revised plan which seems inexplicable considering that he was the Secretary at that time and was apparently producing all the relevant documents to the IO. He does not know who signed the revised lay out plan but denies that it is his signature on the revised lay out plan. According to PW 10 Sarmad Sattar the letter dated 07.01.2013 was apparently signed by PW 5 Saeed Ahmed in his capacity as Secretary and the letter dated 04.01.2013 was signed by PW 5 Saeed Ahmed both of which requested approval of lay out plan and not appellant Barkat Ali. PW 5 Saeed Ahmed does not even know who signed the revised layout plan. The signature of appellant Barkat Ali is not on the revised lay out plan. Overall we find the evidence of PW 5 Saeed Ahmed the Secretary of the Society to be far from confidence inspiring and have grave doubts as to its reliability and truthfulness and certainly leads to us having doubts about the role of appellant Barkat Ali in seeking to initially seek approval to change the layout plan.

2. It appears from the evidence that appellant Barkat Ali in his role as Administrator continued with seeking approval of the change of lay out plan which approval/permission was apparently granted by appellant Imran Mehdi MD of Rind Co-operative Housing Society. Even here however there is some doubt whether the actual letter accorded permission or not which letter is reproduced as under for ease of reference;

Office of the

Managing Director

Sindh Cooperative

Housing Authority

Cooperative House, Opp. Hill Park General Hospital Shaheed-i-Millat Road Karachi, Phone # 021-34920015

NO.MD/ SCHA/ 285/ 2013, Karachi dated:- 16/ 7/ 2013

Mr. Barkat Ali, Exhibit No: R&R11/10

Administrator, Sindh University Employees Cooperative

Housing Society Ltd. Jamshoro

District Jamshoro Sindh

SUBJECT: PERMISSION IN RESPECT OF AMENITY PLOT (SHOPING CENTRE) SITUATED AT INFRONT OF MASJID-E-QUBA S.U.E.C. H. S JAMSHORO REQUEST OF THE ....

This refers to your office letter No.ad/ suechs/ 19/2013 dated 12.07.2013 on the subject noted above, permission may be accorded and advise you to take further necessary action, in the interest of the society, completion of all codal/legal formalities and as per Bye laws of the society.

Managing Director

Sindh Cooperative Housing

Authority, Karachi

Copy to P.S to Secretary, Cooperation Department, Government of Sindh, Karachi for information.

Managing Director

Sindh Cooperative Housing

Authority, Karachi

1. From the letter from appellant Mehdi the term, "permission may be accorded and advise you to take necessary action in the interests of the society subject to completion of all codal/legal formalities and by laws" is used. This letter could therefore be read in two ways (a) The way Barkat Ali saw it as granting permission and (b) the way apparently appellant Mehdi claims to have meant it i.e it was a conditional permission which was more of an advise and even otherwise all legal formalities had to be carried out (which they were).

2. We find it quite understandable that appellant Barkat Ali considered the letter as a permission when it may not have been if it had been analyzed more deeply but what appears certain is that there was no criminal intent behind the way appellant Barkat Ali interpreted the letter and no criminal intent behind the apparent vagueness of the letter written by appellant Mehdi who in any event withdrew the letter 6 months later when he saw what appellant Barkat was doing which in his view amounted to a misinterpretation of the letter and there is no evidence that he received any benefit from such a permission which he later cancelled which creates doubt about both his and Barkat Ali's criminal intent in respect of this matter. With regard to the inquiry into the affairs of the Society this was stayed by the Sindh High Court and as such the report is of no evidentiary value. Even otherwise little, if any, reliance can be placed on the report as it contained no annexures, had not considered any of the plans and had been carried out in a very rudimentary manner which even stated that a deeper inquiry was needed.

3. Similarly the initial approval from the SDA to Saeed Ahmed to revise the lay out plan did not come from appellant Asghar Shaikh the Ex DG of SDA but rather the AD at that time who was not examined. With regard to his approval to the revision of the master plan however there is no evidence that he actually approved it. It seems from the evidence that it was dealt with by one Ms. Fatima in his office who was not called as a witness to substantiate whether or not appellant Asghar Shaikh actually gave his approval and under what circumstances, if at all. PW 9 Muhammed Ashraf in his evidence states that there was no evidence that the revised lay out plan ever landed on the desk of appellant Asghar Shaikh and could not confirm whether or not the appellant's signature is on the plan; which all creates doubt. In his evidence he also states that he did not see the signature of appellant Barkat Ali. Even otherwise neither any official from the Town Department of the Government of Sindh or the SBCA was ever called as a witness to give evidence that the original plan of a private society could not be revised under any circumstances.

4. We also have doubt over the credibility of some of the witnesses who gave evidence. For example, the IO admits that star witnesses Sohail Bachani, Asadullah Solangi and Muneer Soomro and from cross-examination that Syed Hajan Ali Shah and Muneer Ahmed were all facing NAB inquiries at the time of their evidence and even one had been convicted and another had already had his VR accepted so they had every reason to support the prosecution case in return for lenient treatment in the NAB cases which they were facing. Even the IO of the case was dismissed on account of misconduct which castes doubt on his entire investigation. The aspect of appellant Barkat Ali receiving financial benefit through the sale of the plots to the beneficiaries will be dealt with below when we turn to deal with the cases of the beneficiaries.

5. Thus for the reasons mentioned above we find that the prosecution has not proved its case against appellants Barket Ali, Asghar Shaikh and Imran Mehdi (now deceased) beyond a reasonable doubt and as such by extending them the benefit of the doubt they are acquitted of the charge. Their bail bonds stand cancelled and sureties discharged and they are free to go.

Turning to the sale of these allegedly converted amenity plots to the beneficiary appellants on throwaway prices by appellant Barkat Ali to his favorites and kith and kin who then pocketed the purchase price for these plots.

1. The plots it seems were sold by appellant Barkat Ali after advertising as confirmed by PW 3 Sohail Adeep in his evidence as under;

".....it is correct that the plots sold by Barkat Ali were on the basis of advertisement"

1. PW 4 Asadullah in his evidence states that all sales of the plots was done after following all codal formalities as under:

"it is correct to suggest that I had issued the said certificates of plots in respect of Sindh University Employees Cooperative Housing Society during my incumbency. It is correct that such sale certificates were issued after completion of all codal formalities."

1. The sale in any event was not done on a pick and chose basis as the sale was through auction following an advertisement.

2. The valuation of the plots was made by PW 4 Asadullah who was a mukhtiarkar who relied upon a report from a local tapedar who did not give evidence and whose report was not exhibited. PW 4 Asadullah admits in his evidence that it is not the job of a revenue officer to ascertain the market value of the property as such we find that we cannot place any reliance on his valuation of the plots and cannot reach the conclusion that the plots were sold on throwaway prices as no proper market valuation of the plots was made by an expert who was qualified to do the same. In fact the value of the adjacent plots was not even ascertained or a sale deed in respect of such plots ever collected to consider the market prices of the plots nor were attempts made to ascertain the actual market value of the plots as admitted by the IO.

3. It is the prosecution case that the plots were allotted to relatives, favorites and kith and kin of appellant Birkat Ali however there is no evidence to this effect.

4. All the evidence suggests that all the appellant beneficiaries who purchased the plots were bona fide purchasers for valuable consideration without notice that there was any defect in their title. The IO himself has conceded in his evidence that no loss was caused to the Government exchequer. The beneficiaries would also not have any criminal intent in buying the plots as they would not have known about any alleged criminality by Barkat Ali, Imran Mehdi and Asghar Shaikh in allegedly revising the original plan and converting amenity plots into commercial plots in order to make a profit. The precise plot Nos. which the beneficiaries allegedly purchased at throwaway prices was not even put to them during their Section 342, Cr.P.C statements nor whether they were favorites or kith and kin of appellant Barkat Ali and as such any evidence to this effect is discarded and cannot be used to convict them.

5. In the impugned Judgment whilst convicting and sentencing all the appellant beneficiaries the trial judge at para 64 has held as under in respect of the beneficiaries;

"Para 64. Beneficiary accused persons each namely Nazar Junejo son of Abdul Lateef Junejo, Hyder Ali son of Ghulam Muhammad, Mir Shah Muhammad son of Mir Ghulam Muhammad, Abdul Raheem Baloch son of Ghulam Muhammad, Munib Ali son of Rustam Ali, Allah Dino son of Muhammad Ismail, Ghulam Muhammad son of Nabi Bux, Ali Anwaar son of Abdullah Sehar, Muhammad Khan son of Nabi Bux, Liaquat Ali son of Muhammad Yaqoob, Muhammad Amir Tunio son of Abdul Hakeem, Abdul Lateef Junejo son of Nazar Muhammad, Faryyad Husain son of Muhammad Bachir, Hayat Muhammad son of Nazar Muhammad Junejo and Ayaz Hussain son of Ghulam Qadir Leghari are convicted under section 10 of the NAO 1999 read with section 265-H(ii), Cr.P.C and sentenced to suffer rigorous imprisonment for the period of three years each and to pay fine of Rs.2 lacs each while taking lenient view on the ground that no evidence has been brought against them with regard to the embezzlement of funds at their hands and only they are alleged to have purchased the plots being the favorites of accused Barkat Ali Junejo and being kith and kin. In case of default in non-payment of fine, same shall be recovered as arrears of Land Revenue from them as provided under section 33-E of NAO 1999."(bold added)

1. In our view this very finding of the judge is self contradictory as on the one hand he has convicted the beneficiary appellants but on the other hand has found no evidence of them being involved in embezzlement of funds and are alleged (as opposed to have been found) to have purchased plots as they were favorites or kith and kin of appellant Barkat Ali for which there is no evidence.

2. It is notable that one co-accused beneficiary who was the son of Asghar Shaikh who had allegedly received a plot in return for his father appellant Asghar Shaikh approving the revised lay out plan and whose case was on a worse footing than the current beneficiary appellants was acquitted on the same set of evidence and no appeal against his acquittal has been filed and as such we find that the appellant beneficiaries are entitled to equal treatment to also be acquitted of the charge.

3. We have also found no evidence that appellant Barkat Ali misappropriated any funds which he might have collected from the appellant beneficiaries as although it seems that appellant Barkat Ali withdrew funds from the society's account, which he had the right to do, this was done along with the joint signatory PW 10 Sarmad Sattar and there is no evidence what these funds were used for i.e for his personal benefit or for that of the Society. According to the evidence of PW 10 Sarmad Sattar while the Society stood superseded it was the job of the Secretary PW 5 Saeed Ahmed to look after the accounts of the Society and according to his evidence PW 5 forced him to sign 4 cheques in the name of JS Bank and not the Society so once again there is doubt as to who was moving the Society's money to where and why and as such the prosecution has not proved beyond a reasonable doubt that Barkat Ali embezzled any of the Society's funds. No recovery was made from him and no excess money was found in either his personal bank accounts or that of his relatives.

4. The prosecution also gave up 8 witnesses without explanation and as such under Article 129 (g) Qanun-e-Shahadat Order 1984 an adverse inference can be drawn that in their evidence they would not have supported the prosecution case.

2025 Y L R 373

[Sindh (Larkana Bench)]

Before Arbab Ali Hakro, J

Ghulam Shabir and another---Applicants

Versus

Ali Sher and 17 others---Respondents

Civil Revision Application No. S-15 of 2020, decided on 31st October, 2024.

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

----Ss.8, 39, 42 & 54---Suit for declaration, cancellation of entries in the revenue record, possession, permanent and mandatory injunction---Maintainability---Audi alteram partem, principle of---Scope---Entries entered into the revenue record were cancelled being fraudulent---Applicants availed remedies in revenue hierarchy, but remained unsuccessful---Contention of the applicants was that they were not afforded an opportunity of hearing before cancelling their registered sale deed---Validity---Foundational entry was found to be fabricated, false and fraudulent by the Revenue hierarchy upon thorough verification of the original record, of which they were the custodians---Such entry did not inherently provide the applicants with a cause of action to challenge the same by filing a declaratory suit, especially when the applicants were admittedly not in possession of the subject property---Incompetent suit should be dismissed at its inception and such approach serves the dual purpose of safeguarding the interests of the litigating parties and preserving the resources of the judicial institution---For the litigants, the early dismissal of an untenable claim conserves both time and financial resources, sparing them the protracted ordeal of a meritless legal battle and eliminating such suits at the outset allows the courts to allocate their time and efforts more effectively towards genuine and substantial causes---Both the courts, in addition to the plaint, looked into the admitted/undisputed documents and facts, such as record before the revenue authorities and rightly rejected the plaint, for, an incompetent suit should be buried without further proceedings---Applicants availed appellate and revisional remedies against the cancellation order, in which they were afforded an opportunity to be heard at the subsequent stages---Principle of audi alteram partem, which mandates that no person should be condemned unheard, becomes satisfied if the affected parties are provided with a reasonable opportunity to present their case at any stage of the proceedings, thus, any procedural lapse at the initial stage, assuming there was one, had been rectified by the subsequent hearings, as such the applicants' argument that they were condemned unheard before passing of the order was devoid of substantive merit, as subsequent opportunities provided to them had redressed their grievances---Civil revision was dismissed, in circumstances.

1996 SCMR 78; PLD 2015 Lahore 687; 1992 CLC 851; PLD 2024 SC 838; 2007 SCMR 741; 2004 PSC 1444 and 2000 PSC 746 ref.

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

----S. 42---Suit for declaration---Discretionary relief, grant of---Scope---Relief under S.42 of the Specific Relief Act of 1877 is discretionary---Courts have the latitude to grant or deny such relief based on the merits and equity of each case.

(c) Administration of justice---

----Wrong/illegal entries in revenue record---If the basic structure is illegal, all the superstructure erected thereupon is similarly tainted with illegality.

Ghulam Muhammad Barejo for Applicants.

Waqar Ahmed A. Chandio for Respondents Nos. 1 to 3.

Abdul Sattar Hulio for Respondent No. 7.

Zahid Hussain Chandio for Respondent No. 9.

Abdul Waris Bhutto, Asst. A.G. for Respondents Nos. 8 to 18.

Nemo for Respondents Nos. 4 to 6.

Dates of hearing: 16th and 22nd, October, 2024.

Judgment

Arbab Ali Hakro, J.---Through this Revision Application under Section 115 of the Civil Procedure Code, 1908 ("C.P.C"), the applicants impugn the Judgment and Decree dated 18.12.2019, passed by learned III-Additional District Judge (MCAC), Larkana ("Appellate Court"), whereby the applicants' appeal was dismissed, thus affirming the Order dated 05.11.2019, rendered in F.C Suit No.63/2019 by learned IV-Senior Civil Judge, Larkana ("Trial Court"), which had rejected the plaint under Order VII, Rule 11, C.P.C.

1. In summation, the factual matrix reveals that Applicant No.1, Ghulam Shabir, effectuated the purchase of 00-20 acres from Survey No.838 (04-00 acres) situated in Deh Badeh, Taluka Dokri, District Larkana, from Abdul Sattar through registered Sale Deed No.455 dated 07.11.1995. Applicant No.2, Abdul Ghaffar, subsequently purchased 1-38½ acres of the same survey from Gul Hassan vide Sale Deed No.96 dated 02.02.2002. Possession of the subject properties was duly transferred to the applicants, and the record of rights was accordingly mutated with entries No.402 dated 16.12.2001 and No.1367 dated 13.3.2002. The applicants allege that Respondents Nos.1 to 7 endeavoured to usurp the land illicitly. Following a demarcation report on 18.5.2016, the Additional Deputy Commissioner-I, Larkano cancelled all entries on 08.6.2018 without providing the applicants an opportunity for a hearing. Subsequent appeals to the Additional Commissioner and the Board of Revenue were dismissed on 18.9.2018 and 16.9.2019, respectively. On 25.8.2019, Respondents Nos.1 to 7, abetted by Respondents Nos.8 to 10, unlawfully occupied the subject property. Consequently, the applicants instituted a suit seeking a declaration of ownership, annulment of the aforementioned orders, repossession of the property, and the issuance of permanent and mandatory injunctions.

2. Upon presentation of the plaint, the trial court, after reviewing its contents and the accompanying documents, rejected the plaint by Order dated 05.11.2019. The applicants, aggrieved by this decision, filed an appeal before appellate Court, which was also dismissed by the judgment and decree dated 18.12.2019. Consequently, the applicants now seek to challenge the concurrent findings of both lower courts through the instant revision application.

3. At the outset, learned counsel representing the applicants submits that the Order dated 08.06.2018, passed by the Additional Deputy Commissioner-I, Larkana, was ultra vires as no notice was issued to the applicants prior to the passing of the Order, and this fact has not been considered by the courts below. He submits that the applicants are lawful owners of the subject property through registered Sale Deeds; hence, the Revenue Authorities lack jurisdiction to cancel the entries based on these registered Sale Deeds. Additionally, he submits that the applicants were in possession of the subject property when the entries were cancelled and were subsequently dispossessed by the private respondents, as stated in the plaint. He further submits that the plaint cannot be summarily rejected as the matter requires evidence to elucidate the question of fraud. Lastly, learned counsel for the applicants prays that the instant revision application be allowed by setting aside the impugned judgment, decree, and Order passed by both lower courts. In support of his contentions, learned counsel relies on the case laws reported as 1996 SCMR 78, PLD 2015 Lahore 687 and 1992 CLC 851.

4. Conversely, learned counsel representing Respondents Nos.1 to 3 contended that the learned trial court had rightly rejected the plaint maintained by the learned appellate Court, with no material irregularity or illegality committed by both courts below. It was argued that Survey No.838 was not included in the decree passed in F.C. Suit No.45 of 1986. It was fraudulently included in the entry, justifying its cancellation by the Revenue Authorities. He placed reliance on the cases reported as PLD 2024 SC 838, 2007 SCMR 741, 2004 PSC 1444 and 2000 PSC 746.

5. Learned A.A.G., while advocating in favour of the impugned judgment, decree, and order passed by both lower courts, asserted that the subject property is owned by the Government. This assertion was bolstered by the Recordical Statement provided by the Mukhtiarkar Taluka Dokri and the Additional Deputy Commissioner-I, Larkana.

6. Learned counsel representing Respondent No.7 has adopted the arguments presented by learned counsel for Respondents Nos.1 to 3.

7. The contentions have been meticulously scrutinized, and the accessible records have been assiduously evaluated. To ascertain whether an adequate and exhaustive dispensation of justice was accomplished, it is imperative to scrutinize the concurrent findings articulated by both the Courts below.

8. Upon scrupulous examination of the case record, it is manifestly apparent that the foundational entry No.222, dated 27.11.1986, in the name of Ghulam Rasool son of Jan Muhammad, was predicated on a Judgment and Decree dated 30.06.1986, passed in F.C. Suit No.45 of 1986 by the III-Senior Civil Judge, Larkana, ostensibly in favour of the aforementioned Ghulam Rasool. This Judgment and Decree purportedly included Survey No.838, among other survey numbers. Leveraging this initial entry, Ghulam Rasool subsequently alienated 00-20 acres out of Survey No.838 to Abdul Sattar vide a registered Sale Deed, resulting in entry No.612 dated 28.02.1994, being recorded in Abdul Sattar's favour. Thereafter, Abdul Sattar transferred the said 00-20 Ghuntas to Applicant No.1 through another registered Sale Deed, culminating in entry No.402 in favour of Applicant No.1. Additionally, Ghulam Rasool disposed of 02-00 acres of Survey No.838 to Gul Hassan vide a registered Sale Deed, leading to entry No.617 dated 04.04.1994, in favour of Gul Hassan. Subsequently, from the aforementioned 02-00 acres, Gul Hassan sold 01-38½ acres to Applicant No.2 through a registered Sale Deed, resulting in entry No.1367 dated 13.03.2002, in favour of Applicant No.2.

9. However, it is a trite proposition of law that if the basic structure is illegal, all the superstructure erected thereupon is similarly tainted with illegality. In this context, the Additional Deputy Commissioner-I, Larkano, by an Order dated 08.06.2018, annulled the foundational entry No.222 and all subsequent entries on the premise that Survey No.838 was fraudulently incorporated into entry No.222. The Judgment and Decree dated 30.06.1986, upon which entry No.222 was predicated, did not encompass Survey No.838, and the original record exhibited conspicuous overwriting. Consequently, the entire chain of transactions predicated on illegitimate entry No.222, including the sales to Abdul Sattar and the applicants, is vitiated by the initial illegality, rendering all derivative entries null and void ab initio.

10. It is well-established that the function of a Revenue Officer is to prepare accurate revenue records based on evidence regarding one's title or interest. Consequently, the law restricts the jurisdiction of Civil Courts from undertaking functions assigned to Revenue Officers, including the methodologies they adopt in performing their duties. The Civil Courts do not have jurisdiction to correct entries made by the Revenue Officer in the course of his duties. In the present case, the Additional Deputy Commissioner-I, Larkano passed the Order dated 08.6.2018 thoroughly after verifying the original records within the scope of his powers.

11. Concerning the contention that no notice was issued to the applicants before passing Order dated 08.06.2018 by the Additional Deputy Commissioner-I, Larkano, allegedly resulting in the applicants being condemned unheard: Upon a scrupulous examination of the case record and considering the fact that the applicants subsequently availed themselves of appellate and revisional remedies against the said Order, it is manifest that they were afforded an opportunity to be heard at these subsequent stages. The principle of Audi alteram partem, which mandates that no person should be condemned unheard, is satisfied if the affected parties are provided with a reasonable opportunity to present their case at any stage of the proceedings. Therefore, any procedural lapse at the initial stage, assuming there was one, has been rectified by the subsequent hearings. Thus, the applicants' argument that they were condemned unheard before passing of the Order dated 08.06.2018 by the Additional Deputy Commissioner-I, Larkano, is devoid of substantive merit, given the subsequent opportunities provided to them to address their grievances.

12. The plaint's averments fail to delineate that the Orders passed by the Revenue hierarchy were either ultra vires or exceeded the statutory confines of their authority. Furthermore, it does not establish that these orders were vitiated by any jurisdictional infirmity, thereby rendering them susceptible to scrutiny under the jurisdiction of the Civil Court, in view of dicta laid down by the Supreme Court of Pakistan in the cases of Abdul Rab and other1 and Bashir Ahmed and others2.

2025 Y L R 382

[Sindh (Hyderabad Bench)]

Before Yousuf Ali Sayeed, J

Ali Abid---Petitioner

Versus

Muhammad Ayoub and others---Respondents

Constitution Petition No. S-519 of 2023, decided on 31st May, 2024.

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

----Ss.15 & 16---Tentative rent-depositing order, non-compliance of---Effect---Relationship of landlord and tenant, denial of---Eviction order was passed after the tenant failed to comply with tentative rent-depositing order passed by the Rent Controller allowing Rent Application filed by the landlord---Petitioner / tenant filed constitutional petition as District Court maintained eviction order made by the Rent Controller---Contention of the petitioner was that there was no underlying relationship of landlord and tenant between the petitioner and respondent in respect of the subject premises as his wife had purchased the same through a sale agreement regarding which suit for specific performance was pending adjudication---Validity---Contention of the petitioner was patently misconceived in view of the fact /record that earlier the petitioner filed constitutional petition against very tentative rent-depositing order passed by the Rent Controller, which was disposed of with the directions to him (petitioner) to comply with rent depositing order---Petitioner was bound to comply with the said order previously made by the (High) Court but he willfully failed to comply with rent-depositing order made by the Rent Controller---It is incumbent on a party to comply with a tentative rent order that has attained finality---Other defense taken by the petitioner in the matter that a suit for specific performance of a sale agreement was pending along with another suit for cancellation of the sale deed in favour of the landlord was also repelled---No illegality or irregularity was noticed in the approach of the fora below warranting correction in exercise of the constitutional jurisdiction of the High Court---Constitutional petition, filed by tenant, was dismissed, in circumstances.

Muhammad Iqbal Haider v. 1st ADJ, Karachi Central and others PLD 2018 SC 35 ref.

Bashir Ahmed Almani for Petitioner.

Sikandar Ali Shah for Respondent No. 1.

Date of hearing: 29th April, 2024.

Order

Yousuf Ali Sayeed, J.---The Petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution, impugning the Judgment rendered by the Model Civil Appellate Court-II/VIth Additional District Judge- Hyderabad on 04.11.2023, dismissing 1st Rent Appeal No. 37 of 2023 filed by him against the Order made by the VIIIth Senior Civil Judge/Rent Controller Hyderabad on 08.07.2023, allowing Rent Application No. 172 of 2021 filed by the Respondent No.1 under Section 16(2) of the Sindh Rented Premises Ordinance (the "SRPO").

1. The facts and circumstances underpinning the proceedings and giving rise to the aforementioned Order have been recorded in the impugned Judgment of the Appellate Court, with the relevant excerpt thereof reading as follows:

"10. The perusal of record shows that the learned Rent Controller passed an order on the application under section 16(1) SRPO, 1979, whereby dismissed the same application vide order dated 20.08.2021. The applicant being aggrieved and dissatisfied with that order preferred a First Rent Appeal through FRA No.35 of 2021 against the order dated: 20.08.2021 which was also dismissed. The record further transpires that the applicant challenged both the impugned orders by filing C.P. No. S-585 of 2021 before Honorable High Court of Sindh Circuit Court Hyderabad which was disposed of vide order 28.04.2023 whereby the opponent was directed to pay monthly rent before learned Rent Controller within one week. For convenience the operative paragraphs of the order passed by Honourable High Court of Sindh Circuit Court, Hyderabad are reproduced as under;

"3. Both the parties after arguing the matter at some length, agreed for disposal of the captioned petition on the premise that opponent/respondent, shall deposit the monthly rent before the learned Rent Controller within one week as directed and then the learned Rent Controller shall decide the matter within one month from today in accordance with law.

1. In view of consent of the parties, this petition stands disposed of in the above terms. Consequently, opponent/ respondent is directed to deposit monthly rent before learned Rent Controller till final adjudication of rent proceedings and learned Rent Controller shall expedite conclusion of the Proceedings within one month after receipt of this Order"

11. Further perusal of record clearly transpires that the tentative rent order was passed on 28.04.2023 by the Honorable High Court of Sindh Circuit Court Hyderabad and the report called from Nazir of the Court dated: 08.07.2023 shows that the opponent had not deposited the rent amount in due compliance of order dated: 28.04.2023, which shows that opponent/appellant did not comply the directions. Therefore, the learned rent controller had rightly relied upon the case laws and also rightly held that non submission of a single penny towards payment of rent after clear directions in the order passed by the Honourable High Court of Sindh Circuit Court, Hyderabad is a negative element.

1. In this regard I find no illegality or irregularity in the observations made in the order passed by the learned Rent Controller, therefore, such cannot be disturbed hence required no interference of this court. The point under discussion is answered in "Negative".

2. On query posed to learned counsel for the Petitioner as to whether the rent had been deposited by way of compliance, he conceded that the same had not been done, but sought to argue that the impugned Order of the Rent Controller and Judgment of the ADJ were bad in law as there was no underlying relationship of landlord and tenant between the Petitioner and Respondent No.1 in respect of the subject premises in as much as his wife had purchased the same through a Sale Agreement.

3. Conversely, learned counsel for the Respondent No.1 submitted that said Respondent had acquired the premises through a registered Sale Deed and thereafter had served a notice under Section 18 of the SRPO on the Petitioner, who had nonetheless failed to tender payment of rent, necessitating filing of the Rent Case, with the course of events narrated in the Judgment dated 04.11.2023 having ensued during the course of that proceeding.

2025 Y L R 387

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Sajjad Hussain Bhatti---Petitioner

Versus

Mst. Quratulain Zehra Memon and 2 others---Respondents

C.P.S. No. 197 of 2022, decided on 28th August, 2024.

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

----Ss. 5, Sched. & 14---Constitution of Pakistan, Art. 199---Suit for dissolution of marriage and recovery of dowry articles---Denial of the petitioner qua receipt of dowry articles---Concurrent findings of fact recorded by the Family Court and Appellate Court qua dowry articles---Interference by the High Court in its constitutional jurisdiction---Scope---There were concurrent findings of facts against the petitioner given by both the forums below---Arguments of petitioner were based on hypothesis as no tenable evidence had been adduced by him, which even did not appeal to common sense because the dowry articles are traditionally shifted to the house of bridegroom before the actual ceremony of marriage---Both the courts below had discussed the entire evidence led by the parties in proper context and had come to a conclusion thereby dismissing the case of the petitioner that he did not have any dowry articles of the plaintiff/respondent in his possession---In constitutional jurisdiction, reappraisal of evidence just because another view is possible, is not permissible---When it had not been indicated that there was any apparent illegality in appreciating the evidence by both the courts below, the High Court would not rush to substitute its view for the findings recorded by the courts below, unless it is shown from the record that some ostensible illegality has been committed---Petitioner had failed to point out any illegality in the findings of both the courts below, thus, High Court did not find any merit in the constitutional petition, which was dismissed along with pending applications, in circumstances.

(b) Constitution of Pakistan---

----Art. 199---Constitutional jurisdiction---Scope---Reappraisal of evidence---Permissibility of another view---In constitutional jurisdiction, reappraisal of evidence just because another view is possible, is not permissible.

G.M. Dars for Petitioner.

Abdullah Narejo and Abdul Nabi Joyo for Respondent No. 1.

Date of hearing: 28th August 2024.

Order

Muhammad Iqbal Kalhoro, J.---Respondent No. 1 filed a family suit for dissolution of marriage and recovery of dowry articles against petitioner. The petitioner after being summoned filed a written reply denying the claim of respondent No. 1 in respect of dowry articles. He stated that the marriage took place in Pir Jo Goth, District Khairpur Mirs where the parties originally reside, and that they lived there only for 4/5 days after marriage, thereafter since the petitioner was posted in Islamabad, they went to Islamabad and hence, no dowry articles were shifted to the house of petitioner situated in Pir Jo Goth in expectation that after having been permanently settled in Islamabad, the same, if any, would be shifted there.

1. In support of her case, the plaintiff/respondent No. 1 examined herself, her mother and brother, who supported her claim that after the marriage all dowry articles including gold ornaments were shifted to the house of the petitioner in Pir Jo Goth and respondent No. 1, since had been working as a Women Medical Officer in Karachi, had gone to Islamabad for a short period until her earned leave expired. In the evidence, all the witnesses supported her claim that dowry articles are in possession of petitioner having been shifted to his house at the time of marriage.

2. Whereas, from the side of petitioner, he examined himself and his two brothers in support of his case viz. the dowry articles were not shifted to his house in Pir Jo Goth, as the parties had gone there only for holding marriage ceremony.

3. The learned trial Court after appreciating the evidence, decreed the suit in favour of respondent No. 1 dissolving her marriage and directing the petitioner to return the dowry articles, the receipts of which, she had produced in the evidence. The petitioner challenged the same in Family Appeal No.251/2021 in the Court of VIIth Additional District Judge, Karachi-East, who has decided the appeal through impugned judgment dated 15.02.2022 dismissing the case of petitioner about his denial regarding shifting of dowry articles in his house in Pir Jo Goth. Hence, this petition.

4. Learned counsel for the petitioner has contended that both the judgments are based on presumptions and hypothesis. Respondent No. 1 has failed to produce any cogent evidence to prove that dowry articles were shifted in the house of the petitioner in Pir Jo Goth. The parties had resided in Pir Jo Goth only for four days and thereafter had gone to Islamabad, the place of posting of petitioner, where respondent No. 1 resided only for one week and returned to Karachi and filed the suit. Since the parties had gone to Pir Jo Goth only for marriage ceremony, the dowry articles, if any, were not shifted to his house there.

5. On the other hand, learned counsel for respondent No. 1 has supported the impugned judgment.

2025 Y L R 402

[Sindh]

Before Adnan Iqbal Chaudhry, J

Azharullah---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 2511 of 2022, decided on 30th August, 2023.

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

----S. 498---Penal Code (XLV of 1860), S. 408---Criminal breach of trust by a clerk or servant---Pre-arrest bail, refusal of---Allegation against the petitioner was that he being an employee of a company, misappropriated an amount of Rs.1,600,000/----As per the challan, the practice was that the company would give cash to the accused-petitioner for making a pay-order from Bank in favor of Medical College which would then be delivered by him to Medical College, who would then issue a receipt for the same which would be submitted by the accused-petitioner to the company---Investigation revealed that the accused-petitioner used the copy of one genuine pay-order as a specimen to fabricate copies of other pay-orders purportedly issued by Bank made payable to Medical College, and then also forged acknowledgment receipts of the Medical College which he submitted to the company to show that the pay-order was received by Medical College---Allegation was that he pocketed the cash meant for the pay-orders---Out of the four pay-orders sent by the Investigating Officer to the Bank for verification, only one was found to be genuine i.e. the one which the accused-petitioner used as a specimen to fabricate others---Fact that all the said pay-orders bore the same stationary number supported the allegation of forgery---Medical College had also denied issuing receipts for the forged pay-orders---Prima facie there was no reason to disbelieve at present stage the allegation that the accused-petitioner committed the offences alleged---Submission of the petitioner's counsel that the accused had been made a scapegoat by the lower staff of the company did not appear to be convincing---No mala fides had been attributed to the bank or to Medical College whose statements tended to support the alleged offences---Fact that offences alleged did not fall with the prohibitory clause of S.497, Cr.P.C, was not the only consideration for granting pre-arrest bail---Accused-petitioner was not able to demonstrate any malafides underlying the FIR which remained the primary test for the grant of pre-arrest bail---Accused-petitioner had not made out a case for pre-arrest bail---Bail application was dismissed accordingly.

Mukhtar Ahmed v. the State 2016 SCMR 2064 rel.

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

----S. 498---Pre-arrest bail---Scope---Grant of pre-arrest bail is an extraordinary relief which may be granted in extraordinary situations so as to protect innocent persons against victimization through abuse of law for ulterior motives---Pre-arrest bail is not to be granted as a substitute or an alternative to post-arrest bail.

Rana Muhammad Arshad v. Muhammad Rafique PLD 2009 SC 427 rel.

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

----Ss. 497 & 498---Bail---Tentative assessment---Scope---Observations made in a bail order are tentative, and nothing therein should be construed to prejudice the case of either side at trial.

Shahzad Mahmood for Applicant.

Saleem Akhtar Buriro, Additional Prosecutor General, Sindh for the State.

Jamil Ahmed Ghazali for the Complainant.

Date of hearing: 30th August, 2023.

Order

Adnan Iqbal Chaudhry, J.---The Applicant/ Accused seeks pre-arrest bail after the same has been declined by the Additional Sessions judge-X, Karachi (East) by order dated 23-12-2022. The offence alleged in the FIR was under section 408, P.P.C., however, the challan also added thereto sections 468 and 471, P.P.C.

1. Heard learned counsel and perused the record.

2. The Complainant, an officer of Shan Foods Company, lodged FIR on 29-09-2022 alleging that the Accused, who was an employee/rider of the Company, was entrusted with Rs. 200,000/- in cash every month from January 2022 to August 2022 (total Rs. 1,600,000/-) for payment to Jinnah Postgraduate Medical College [JPMC] as a grant-in-aid; that sometime thereafter, the JPMC informed the Company that they had not received the grant-in-aid for some time; that when Company confronted the Accused, he could not give any satisfactory answer, and thereafter he vanished.

3. Per the challan, the practice was that the Company would give cash to the Accused for making a pay-order from Standard Chartered Bank in favor of JPMC which would then be delivered by him to JPMCC, who would then issue a receipt for the same which would be submitted by the Accused to the Company. The investigation revealed that the Accused used the copy of one genuine pay-order as a specimen to fabricate copies of other pay-orders purportedly issued by Standard Chartered Bank made payable to JPMC, and then also forged acknowledgment receipts of the JPMC which he submitted to the Company to show that the pay-order was received by JPMC - the allegation being that he pocketed the cash meant for the pay-orders.

4. Out of the four pay-orders sent by the I.O to the Standard Chartered Bank for verification, only one was found to be genuine i.e. the one which the Accused used as a specimen to fabricate others. The fact that all of said pay-orders bear the same stationary number supports the allegation of forgery. The JPMC has also denied issuing receipts for the forged pay-orders.

5. Given the aforesaid facts, there is prima facie no reason to disbelieve at this stage the allegation that the Accused committed the offences alleged, and the submission of the Accused's counsel that he has been made a scapegoat by the lower staff of the Company does not appear to be convincing. No mala fides have been attributed to the bank or to JPMC whose statements tend to support the alleged offences.

2025 Y L R 409

[Sindh]

Before Irshad Ali Shah, J

Kashif Khan---Appellant

Versus

The State---Respondent

Criminal Appeal No. 714 of 2019, decided on 19th September, 2023.

Penal Code (XLV of 1860)---

----S. 302(b)---Qatl-i-amd---Benefit of doubt---Scope---Accused was charged that he along with his co-accused persons committed murder of deceased and caused fire arm injuries to the injured witness during course of dacoity, who were employees of a security company---Complainant stated that after 10/15 days of the incident he was called by Investigating Officer at Police Station and there he was shown 03 culprits with muffled faces who were already arrested in some other case and were formally arrested in present case under memo, which was signed by him and the co-mashir---Said witness further stated that the accused and co-accused were identified by him with specific role during course of their identification parade, which was conducted by Judicial Magistrate---As per memo. of arrest, the accused and co-accused were arrested formally in the case on 13.08.2018 by Investigating Officer on their identification by the complainant at the police station---In such situation, the arranging for identification parade through Magistrate on 20.08.2018 with delay of about 07 days was mockery of the procedure---If there was any need for identification parade of the accused and co-accused then it should been conducted through injured witness of the incident which the prosecution had failed to conduct for no obvious reason---Such omission could not be overlooked---Witness on account of his failure to identify the accused and co-accused was declared hostile to the prosecution, thus his evidence could not be lost sight of---Injured witness was not able to identify the culprits involved in the incident except the accused---Identity of the accused by injured witness at trial did not satisfy the requirement of the law---Police official who actually arrested the accused and allegedly recovered a pistol from him used in commission of the incident had been given up by the prosecution---Non-examination of said witness could not be overlooked---No forensic report with available with regard to the recovered pistol from the accused---Investigating Officer stated that the accused and co-accused during course of interrogation admitted their guilt before him---If it was believed to be so even then such admission on their part in terms of Art. 39 of Qanun-e-Shahadat, 1984, could not be used as evidence---Moreover, there was no recovery of robbed articles---By not awarding punishment to the accused for committing robbery or causing fire shot injuries to injured witness, he impliedly had been acquitted even by trial Court for such allegation---On the basis of same evidence, co-accused had already been acquitted by the trial Court and their acquittal had not been challenged by the prosecution---Accused had pleaded innocence, and such plea on his part could not be overlooked---In these circumstances, it would be safe to conclude that the prosecution had not been able 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 Muhammad Mansha v. The State 2018 SCMR 772 rel.

Iftikhar Ahmed Shah and Umair Usman for Appellant.

Muhammad Anwar Mahar DDPP for the State.

Date of hearing: 19th September, 2023.

Judgment

Irshad Ali Shah, J.---It is the case of prosecution that the appellant, co-accused Sohail Ahmed alias Shani and Shayan alias Shani with rest of the culprits during course of dacoity not only committed murder of Muhammad Iqbal by causing him fire shot injuries but also caused fire shot injuries to PW Muhammad Nadeem, the employees of Askari Security Company, for that the present case was registered. The appellant and above named co-accused denied the charge and the prosecution to prove the same, examined in all 10 witnesses and then closed its side. The appellant and above named co-accused during course of their examination under Section 342, Cr.P.C denied the prosecution's allegation by pleading their innocence; they did not examine themselves on oath, however, they examined Mst. Alya Kashif and Noshaba Sohail in their defence to prove their innocence with a plea that they were taken by the police much before their actual involvement in present case and through them they also produced certain documents. On conclusion of trial, above named co-accused were acquitted while the appellant was convicted under Section 302(b), P.P.C. and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 01 year with benefit of Section 382(b), Cr.P.C by learned VIIth-Additional Sessions Judge/MCTC-2, Karachi, Central vide judgment dated 24.10.2019, which the appellant has impugned before this Court by preferring the instant Cr. Appeal.

1. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case by the police falsely in a blind FIR, on the basis of defective identification parade and on the basis of same evidence co-accused Sohail alias Shani and Shayan alias Shani have already been acquitted by the learned trial Court, therefore, the appellant is also entitled to his acquittal by extending them benefit of doubt, which is opposed by learned DDPP for the State by contending that the case of the appellant is distinguishable to that of the acquitted accused and on arrest from him has been secured the pistol which he allegedly used in commission of the incident.

2. Heard arguments and perused the record.

3. It is stated by complainant Muhammad Farhan that on 27.07.2018, he, Muhammad Nadeem and Muhammad Iqbal were directed by their security company to collect the cash from distribution service limited situated at North Karachi; Muhammad Iqbal went inside of the company for taking cash and when came out, suddenly there came 4/5 culprits who snatched the cash from him by resorting to firing whereby Muhammad Iqbal and Muhammad Nadeem sustained fire shot injuries; Muhammad Iqbal died on his way to Abbasi Shaheed Hospital while Muhammad Nadeem was admitted in Hospital for treatment of his. injuries. He then lodged report of the incident; it was recorded by I.O/SIP Maqsood Hussain. It is lodged with delay of about 06 hours and it is against unknown culprits. It was further stated by the complainant that after 10/15 days to the incident he was called by I.O/SIP Malik Muhammad Afzal at PS Bilal Colony and there was shown 03 culprits with muffled faces who were already arrested in some other case and were formally arrested in present case under, memo, which was signed by him and co-mashir ASI Younis Aziz. It was further stated by him that the appellant and above named co-accused were identified by him with specific role during course of their identification parade, which was conducted by Mr. Asghar Ali Soomro, the Magistrate, having jurisdicticin. As per memo. of arrest, the appellant and above named co-accused were arrested formally in present case on 13.08.2018 by I.O/SIP Malik Muhammad Afzal on their identification by the complainant at the police station. In such situation, the arranging for identification parade through Magistrate on 20.08.2018 with delay of about 07 days was mockery of procedure. If there was any need for identification parade of the appellant and above named co-accused then it was to have been conducted through PW Muhammad Nadeem being injured witness to the incident which the prosecution has failed to conduct for no obvious reason; such omission on its part could not be overlooked. PW Raheel Urnar on account of his failure to identify the appellant and above named co-accused was declared hostile to the prosecution. His evidence could not be lost sight of. PW Muhammad Nadeem was not able to identify the culprits involving the incident excepting the appellant. The identity of the appellant by PW Muhammad Nadeem at trial does not satisfy the requirement of the law. ASI Younis Aziz who actually arrested the appellant and recovered from him the pistol allegedly used in commission of the incident has been given up by the prosecution. His non-examination could not be overlooked. There is no forensic report with regard to the recovered pistol from the appellant. It was stated by I.O/SIP Malik Muhammad Afzal, the appellant and above named co-accused during course of interrogation admitted their guilt before him. If for the sake of arguments, it is believed to be so even then such admission on their part in terms of Article 39 of Qanun-e-Shahadat Order, 1984, could not be used as evidence. There is no recovery of robbed articles. By not awarding punishment to the appellant for committing robbery or causing fire shot injuries to PW Muhammad Nadeem he impliedly has been acquitted even by learned trial Court for such allegation. On the basis of same evidence, above named co-accused have already been acquitted by the learned trial Court and their acquittal has not been challenged by the prosecution. The appellant has pleaded innocence; such plea on his part could not be overlooked. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellant beyond shadow of doubt and to such benefit he too is found entitled.

4. In case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344), it has been held by the Apex Court that;

"When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused".

2025 Y L R 443

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

Qutubuddin Jakhrani---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. S-47 of 2019, decided on 10th March, 2023.

(a) 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 son of complainant by firing---To establish the ocular account, prosecution examined two eye-witnesses including complainant, who being star/natural witnesses of the actual occurrence deposed unanimously in one voice that accused duly armed with Kalashnikovs came and fired at complainant's son which hit him on his head and right knee---Ocular account furnished by eye-witnesses was further substantiated by the medical evidence wherein Medical Officer in his evidence deposed that he conducted postmortem of deceased and found 04 firearm injuries (entry and exit)---As per his opinion, all the injuries were anti-mortem in nature which were sufficient to cause death in ordinary course of life and were caused by a firearm---Death of deceased occurred due to shock and haemorrhage and damage to vital organs---In the case in hand, the medical evidence fully supported the ocular account in respect of injury caused by firearm weapon and in respect of time of receipt and duration of injuries---Appeal against conviction was dismissed, in circumstances.

Mir Afzal Khan v. The State 2011 SCMR 171 ref.

(b) Criminal trial---

----Medical evidence---Scope---Medical evidence by itself does not throw any light on the identity of the offender---Such evidence may confirm the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between injuries and death, and presence of an injured witness or the injured accused at place of occurrence, but it does not connect accused with 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. The State 1997 SCMR 866; Dildar Hussain v. Muhammad Afzaal PLD 2004 SC 663; Iftikhar Hussain v. The State 2004 SCMR 1185; Sikandar v. The State 2006 SCMR 1786; Ghulam Murtaza v. Muhammad Akram 2007 SCMR 1549; Altaf Hussain v. Fakhar Hussain 2008 SCMR 1103 and Hashim Qasim v. The State 2017 SCMR 986 rel.

(c) Criminal trial---

----Sole eye-witness, evidence of---Scope---Sole evidence of a material witness i.e. an eye-witness is always sufficient to establish guilt of the accused if it is confidence-inspiring and trustworthy and supported by other independent sources of evidence because the law considers quality of evidence and not its quantity to prove the charge---Accused can be convicted if the Court finds direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857; Niaz-Ud-Din v. The State 2011 SCMR 725; Allah Bakhsh v. Shammi and others PLD 1980 SC 225 and Muhammad Ehsan v. The State 2006 SCMR 1857 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Related and interested witnesses, evidence of---Scope---Accused were charged for committing murder of the son of complainant by firing---It was day time incident wherein eye-witnesses had sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence wherein an innocent boy of young age had been done to death brutally---Both the parties were known to each other as was evident from their evidence, therefore, there was no chance of mistaken identity of the appellant---Where the witnesses fell within the category of natural witnesses and detailed the manner of incident in a confidence-inspiring manner then only escape available with the accused/appellant was to satisfactorily establish that witnesses were not witnesses of truth but "interested" ones---An interested witness was not the one who was relative or friend but was the one who had a motive to falsely implicate an accused---Mere relationship of eye-witnesses with the deceased alone was not enough to discard testimony of the complainant and his/her witnesses---In matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/ enmity but was required to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the "natural witnesses" in involving innocent persons at the cost of escape of "real culprits"---In the instant case, a dispute over matrimonial affairs was allegedly shown by the complainant in her FIR against the accused---Moreover, no tangible substance had been brought on record by the appellant to justify his false implication in the case at the hands of complainant party on account of previous enmity---Appeal against conviction was dismissed, in circumstances.

Zulfiqar Ahmed and another v. The State 2011 SCMR 492 rel.

(e) Criminal trial---

----Minor contradictions---Scope---Where in the evidence, the prosecution establishes its case beyond reasonable doubt then if there are some minor contradictions which are always available in each and every case the same are to be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Farhat Ali Bugti for Appellant.

Zafar Ali Malghani for the Complainant.

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

Date of hearing: 16th February, 2023.

Judgment

Zulfiqar Ali Sangi, J.---The above listed criminal jail appeal impugns the judgment dated 29.05.2019, delivered by learned 1st Additional Sessions Judge/MCTC, Jacobabad, in Sessions Case No.71/2013 (Re. St. v. Qutubuddin Jakhrani), emanating from FIR bearing Crime No.38/2012, for offence punishable under Sections 302, 34 P.P.C. registered with Police Station, Mouladad, whereby the appellant was convicted for an offence punishable under section 302(b), P.P.C. and sentenced to suffer rigorous imprisonment for life as Tazir with fine/compensation of Rs.500,000/- to be paid to legal heirs of the deceased and in default whereof, to suffer simple imprisonment for one year more, with benefit of Section 382-B, Cr.P.C.

1. Concisely, the facts of prosecution case as unfolded in the FIR lodged by complainant Mst. Haseena on 08.07.2012, at 1730 hours are to the effect that she resided with her son Tarique aged about 16/17 years, brother's wife Mst. Shanzadi and sister-in-law Mst. Begum and a dispute over Karap is going-on with one Wahidu alias Wahid Bux. In year 2003, said Wahidu alias Wahid Bux had committed murder of Mst. Husna and Muhammad Karim illegally and he used to ask for Faisla whereupon the complainant party replied that he committed murder of Muhammad Karim illegally and how they give Faisla to him. On such, he was annoyed and used to say that he will see them. On the eventful day i.e 01.07.2012, at evening time, they all were standing near the land in village, in the meantime, at about 05.30 P.M, accused namely Nadeem son of Gulsher and Qutub son of Shah Murad Khandwani Jakhrani, duly armed with Kalashnikovs while coming raised hakals saying not to come near them, as they will not spare Tarique. Saying so, both the accused made straight fires from their K.Ks at Tarique with intention to commit his murder which hit him and he fell down raising cries. Due to empty handed, they remained silent and thereafter all the accused fled away with their respective weapons. They then saw Tarique having fire arm injuries on his person which were bleeding and was seriously injured, he was immediately shifted to Civil Hospital Jacobabad after obtaining such letter from police station and then was referred to Larkana Hospital where he succumbed to injuries. After getting conducted his postmortem and observing funeral rituals, the complainant consulting with his elders then got registered the FIR against the accused.

2. On completion of usual investigation, the police submitted final report Under Section 173, Cr.P.C against the accused. The formal charge was framed against the present appellant/accused by learned trial Court to which he pleaded not guilty and claimed trial.

3. To establish the accusation against present appellant/accused, the prosecution examined in all nine witnesses i.e PW-01 Dr.Ajeet Kumar, PW-02 Tapedar Amir Bux, PW-03 Complainant Mst. Haseena, PW-04 Eye-witness/ Mashir Mst. Begum, PW-05 Corpse Bear PC Abdullah, PW-06 SIO/ SIP Ghulam Asghar Jarwar, PW-07 SIO/ASI Gulzar Ahmed, PW-08 Mashir PC Akhtiar Ali and PW-09 ASI Muhammad Saifal, who all produced certain relevant documents in support of their statements. Thereafter, the learned State Counsel closed its side.

4. The appellant/accused in his statement recorded in terms of Section 342, Cr.P.C, denied the allegations levelled against him by pleading his innocence stating therein he has been implicated in this case falsely due to registration of FIR lodged by Mst.Taj Bibi against the persons of complainant party. However, he neither examined himself on oath in disproof of the charge nor led any evidence in his defence.

5. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellant/accused vide impugned judgment, as detailed above.

6. Per learned defence counsel, there is inconsistency in between the evidence of prosecution witnesses which has shattered the veracity of their evidence; that the complainant and PWs being related inter-se are interested witnesses and their evidence having no credibility, cannot be relied upon without independent corroboration; that there is conflict in between the ocular and medical account; that the prosecution has failed to prove motive; that there is no recovery of any sort from the possession of appellant/accused which may justify his involvement with commission of the alleged offence; that one of the eye-witness was not examined by the prosecution for no obvious reason. Summing up his contentions, the learned defence counsel submitted that the present appellant/accused has been arraigned in this case on account of earlier dispute which is discernible from narration given in the FIR itself. He lastly concluded that the case of prosecution is doubtful and the appellant/accused is entitled to his acquittal in the circumstances of the case.

7. Conversely, learned counsel for the complainant and learned Addl.P.G for the State submit that the prosecution case is fully supported by evidence of all the witnesses and no any major contradiction has been noticed therein; that an innocent young boy has been done to death brutally at the hands of appellant/accused over previous grudge; that the ocular evidence is consistent with medical as well circumstantial account; that recovery of empties from place of incident as well as chemical report fully supported the case of prosecution, in that situation, the learned trial Court finding the appellant/accused guilty of the offence has rightly convicted and sentenced him by way of impugned judgment which does not call for any interference by this Court, hence, the appeal filed by him being meritless is liable to its dismissal. In support of contentions, learned counsel for the complainant relied upon case of Mir Afzal Khan v. The State (2011 SCMR-171).

8. I have given due consideration to the arguments advanced by learned counsel for the parties and have minutely gone through the material made available on the record with their able assistance.

9. To establish the ocular account, the prosecution examined two eye-witnesses of the incident namely complainant Mst.Haseena and Mst.Begum, who being star/natural witnesses of the actual occurrence deposed unanimously in one voice that on 01.07.2012, while they along with deceased Tarique were available at the land near their village, at about 05.30 P.M, the present appellant/accused along with co-accused Nadeem, duly armed with Kalashnikovs came and fired at complainant's son Tarique which hit him on his head and right leg knee and then ran away. After obtaining referral letter from police station, they brought the injured at Civil Hospital Jacobabad for treatment and was then referred to Larkana hospital where he succumbed to injuries. After getting conducted postmortem, the dead body of deceased was delivered to the complainant for burial ceremony and later-on the FIR was registered against the accused. Both these eye-witnesses were cross-examined at length by learned defence counsel but no major contradiction came out from their mouth which may suggest that the appellant was falsely involved in a murder case of complainant's son.

10. The ocular account furnished by above eye-witnesses is further substantiated by the medical evidence wherein PW-01 Dr.Ajeet Kumar in his evidence deposed that he conducted postmortem of deceased Tarique and found him having received 04 firearm injuries (Entry and Exit). As per his opinion, all the injuries were anti-mortem in nature which were sufficient to cause death in ordinary course of life and were caused by firearm. The death of deceased occurred due to shock and hemorrhage and damage to vital organs. It is observed that medical evidence is in the nature of supporting, confirmatory or explanatory of direct or circumstantial evidence, and is not "corroborative evidence" in 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 commission of the offence. Medical evidence by itself does not throw any light on the identity of the offender. Such evidence may confirm the available substantive evidence concerning certain facts including the seat of injury, nature of injury, cause of death, kind of weapon used in the occurrence, duration between injuries and death, and presence of an injured witness or the injured accused at place of occurrence, but it does not connect accused with commission of the offence. It cannot constitute corroboration for proving involvement of accused person in commission of the offence, as it does not establish identity of the accused person. Reliance can be placed upon cases of Yaqoob Shah v. The State (PLD 1976 SC 53); Machia v. The State (PLD 1976 SC 695); Muhammad Iqbal v. Abid Hussain (1994 SCMR 1928); Mehmood Ahmad v. State (1995 SCMR 127); Muhammad Sharif v. The State (1997 SCMR 866); Dildar Hussain v. Muhammad Afzaal (PLD 2004 SC 663); Iftikhar Hussain v. The State (2004 SCMR 1185); Sikandar v. The State (2006 SCMR 1786); Ghulam Murtaza v. Muhammad Akram (2007 SCMR 1549); Altaf Hussain v. Fakhar Hussain (2008 SCMR 1103) and Hashim Qasim v. The State (2017 SCMR 986). In the case in hand, the medical evidence is fully supported with ocular evidence in respect of injury caused by firearm weapon and in respect of time of receipt and duration of injuries.

11. In the present case, both these eye-witnesses have fully supported the case, as has been discussed above. In addition to this, one of the eye-witness namely Mst.Shanzadi, no doubt, was given up by the prosecution but such practice was adopted by the prosecution solely on account of availability of sufficient material adduced in shape of evidence of complainant and her eye-witness Mst.Begum. However, the sole evidence of a material witness i.e an eye-witness is always sufficient to establish guilt of the accused if it is confidence-inspiring and trustworthy and supported by other independent source of evidence because the law considers quality of evidence and not its quantity to prove the charge. The accused can be convicted if the Court finds direct oral evidence of one eye-witness to be reliable, trustworthy and confidence-inspiring. In this respect, reliance is placed upon cases of Muhammad Ehsan v. The State (2006 SCMR 1857) and Niaz-Ud-Din v. The State (2011 SCMR 725). Further, the Honourable Supreme Court in case of Allah Bakhsh v. Shammi and others (PLD 1980 SC 225) also held that "even in murder case conviction can be based on the testimony of a single witness, if the Court is satisfied that he is reliable." There can be no denial to the legally established principle of law that it is always the direct evidence which is material to decide a fact (charge). The failure of direct evidence is always sufficient to hold a criminal charge as 'not proved' but where direct evidence holds the field and stands the test of it being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance can safely be placed on case of Muhammad Ehsan v. The State (2006 SCMR-1857), wherein the Honourable Supreme Court of Pakistan has held that;-

"5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence".

1. The ocular account supported by the medical evidence is further corroborated from the evidence of PW-07/ SIO/ASI Gulzar Ahmed Katto who deposed that on 08.07.2012, while posted a ASI at P.S Mouladad, complainant Mst.Haseena arrived at P.S and disclosed the facts of cognizable offence. He then registered FIR at her verbatim, read over its contents to her and she accepted the same to be true and put her RTI on it. He further added that he visited the place of incident on pointation of complainant at about 1815 hours which was situated at land of complainant in Deh Dadpur Jageer, he collected the blood stained earth and three empty shells of 7.62 mm from the place of incident and sealed the same separately. He then prepared such memo. in presence of mashirs Mst. Shanzadi and Mst. Begum. Thereafter, he recorded 161, Cr.P.C statements of both witnesses during investigation and sent the blood stained earth to the Chemical Examiner, Rohri for test and report. He then handed over the case papers to SHO P.S Mouladad.

2. PW-6 SIO/SHO Ghulam Asghar Jarwar who also conducted investigation of the case and thus deposed that on 01.07.2012 while posted as SHO at P.S Mouladad, complainant Mst.Haseena came along with her injured son Tarique and requested for issuing letter for his treatment, as such he kept entry No.18 at 1900 hour and examined the injured named above and prepared such memo. of inspection of injuries in presence of mashirs Mst.Shanzadi and Mst.Begum. Thereafter, he referred the injured to Civil Hospital Jacobabad for treatment under letter No.412. On 02.07.2012, at 0045 hours, he received telephonic message from Mst.Haseena that her son Tarique succumbed to injuries at CMC,H Larkana and she had brought his dead body at Civil Hospital, Jacobabad. After keeping entry No.22, he arrived at Civil Hospital, Jacobabad where he examined the dead body of deceased and prepared such memo. and inquest report in presence of same mashirs. Thereafter, he handed over the dead body of deceased to PC Abdullah for postmortem purpose who on the same date, after postmortem, produced the last worn clothes of deceased to him at P.S to which he taken into possession and prepared such memo. in presence of same mashirs. Like disclosure has been made by PW-4 Mst.Begum (Mashir). The above witnesses were cross-examined by learned defence counsel but could not find any substance favourable to the appellant.

3. Learned counsel for appellant mainly focused on the point that the witnesses are near relatives to deceased and are interested therefore their evidence cannot be relied upon, hence the contention raised in this regard carries no force, as it was day time incident wherein eye-witnesses have sufficiently explained the date, time and place of occurrence as well as each and every event of the occurrence wherein an innocent boy of young age has been done to death brutally. Both the parties are known to each other as is evident from their evidence; therefore, there was no chance of mistaken identity of the appellant. It is observed that where the witnesses fall within the category of natural witnesses and detailed the manner of incident in a confidence-inspiring manner then only escape available with the accused/ appellant is to satisfactorily establish that witnesses are not the witnesses of truth but "interested" one. An interested witness is not the one who is relative or friend but is the one who has a motive to falsely implicate an accused. Mere relationship of eye-witnesses with the deceased alone is not enough to discard testimony of the complainant and her witnesses. In matters of capital punishment, the accused would not stand absolved by making a mere allegation of dispute/enmity but would require to bring on record evidence that there had been such a dispute/enmity which could be believed to have motivated the "natural witnesses" in involving innocent at the cost of escape of "real culprits". In the instant case, the dispute over matrimonial affairs is allegedly shown by the complainant in her FIR against one Wahidu alias Wahid Bux who is none as accused in the present case. Moreover, no any tangible substance has been brought on record by the appellant to justify his false implication in this case at the hands of complainant party on account of previous enmity. In case of Zulfiqar Ahmed and another v. The State (2011 SCMR 492), the Supreme Court of Pakistan has held as under:-

2025 Y L R 487

[Sindh (Sukkur Bench)]

Before Amjad Ali Bohio and Arbab Ali Hakro, JJ

Nadir Hussain---Appellant

Versus

The State---Respondent

Special Criminal Jail Appeal No. D-27 of 2023, decided on 10th July, 2024.

(a) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act (XX of 2022)]---

----S.9(d)---Possession and transportation of narcotic substance---Appreciation of evidence---Safe custody and safe transmission of recovered substance to laboratory doubtful---Scope---Prosecution case was that 21000-grams Bhang was recovered from the possession of the accused---Chain of custody remained shrouded in mystery as nothing was brought on record to show why the parcel was kept in malkhana for 04 (four) days prior to being sent to the Chemical Examiner, and even the official who claimed to have taken the parcel to the office of the Chemical Examiner was not examined as witness---For the Chemical Examiner's Report to have real probative value, the sanctity of the chain of custody is absolutely imperative---It is prosecution's responsibility that such chain of custody must be safe and secure because the report of the Chemical Examiner carries critical importance under the Act, 1997, and the proof of chain of custody can only ensure the reaching of recovered material to the office of the Chemical Examiner---Investigating Officer dispatched the parcel to the laboratory through Police Constable, who in his examination-in-chief had not uttered a single word that Investigating Officer delivered the parcel to him on 24.10.2022 and he delivered the same to the Chemical Examiner---Thus, the prosecution admittedly failed to adduce evidence of dispatcher in order to corroborate the chain of custody of case property as unbroken, for which prosecution was liable to prove the safe custody and transmission of sealed sample parcel to the Chemical Examiner---Investigating Officer also failed to explain the delay of four (04) days for keeping the parcel with malkhana, therefore, the elements of tampering with the parcels could not be ruled out and due to such defect on the part of prosecution, it could not be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

The State through Regional Director ANF v. Imam Bakhsh and others 2018 SCMR 2039 and Mst. Sakina Ramzan v. The State Criminal Appeal No. 184 of 2020 rel.

(b) Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act (XX of 2022)]---

----S.9(d)---Possession and transportation of narcotic substance---Appreciation of evidence---Contradictions in the evidence of witnesses---Prosecution case was that 21000-grams Bhang was recovered from the possession of the accused---Perusal of the record reflected that there were material contradictions in the evidence of complainant and mashir---According to complainant, the distance between Police Station and place of incident was about three (03) kilometers, whereas mashir deposed that said distance was only one (01) kilometer---Complainant deposed that he prepared memo. of arrest and recovery with the help of clipboard in standing position, whereas the mashir deposed that memo. was prepared by the complainant over bonnet of mobile vehicle---Though the evidence of complainant and mashir was recorded within four months of the alleged incident, yet their contradictory evidence made their presence at the time of alleged incident as doubtful---Appeal against conviction was allowed, in circumstances.

(c) Criminal trial---

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

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Rukhsar Ahmed Junejo for Appellant.

Aftab Ahmed Shar Additional Prosecutor General for the State.

Date of hearing: 10th July, 2024.

Judgment

Amjad Ali Bohio, J.---Appellant Nadir Hussain through instant appeal has assailed the judgment dated 15.05.2023 passed by Special Judge for (Control of Narcotic Substances), Khairpur in Special Case No.233 of 2022, arising out of FIR No. 22 of 2022, registered at Police Station F.M.Narejo, Khairpur, whereby the appellant was convicted for an offence under Section 9(d) of CNS (Amendment 2022) Act, 1997 and awarded Rigorous Imprisonment for fourteen (14) years. He was also directed to pay fine of Rs.2,00,000/- and in default of payment he is required to undergo simple imprisonment for one year more. Benefit of Section 382-B, Cr.P.C. was extended to accused.

1. The brief facts of the prosecution case as emerged from the contents of the FIR are that on 20.10.2022 at 1100 hours, complainant / ASI Gulsher Maitlo along with his team proceeded from police station in official vehicle for patrolling duty vide entry No.05 and via link road leading from Kot Mir Muhammad to Piryaloi arrived at 'Jaamra Mor' where they received spy information that a person having two bags (gunny plastic bags) containing Bhang (Hemp) was waiting for conveyance near 'Odha Mor' to sell the same. On such information they arrived on pointed place at 1200 hours and found a person standing there beside whom, two filled gunny plastic bags were lying. On seeing the police party he by leaving the bags, tried to escape towards banana garden but was chased and apprehended. On enquiry, he disclosed his name as Nadir Hussain son of Abdul Latif Bhangar, resident of village Rahim Bux Bhangar, Taluka Kingri, and admitted that he used to sell Bhang (Hemp). They weighed the recovered Bhang (Hemp) which measured to be 21000 grams. From personal search, cash of Rs.150/- was secured. Recovered Bhang (Hemp) was sealed and such mashirnama of recovery and arrest was prepared. The appellant along with recovered property was brought at Police Station. Case was registered against appellant Nadir Hussain Bhangar under section 9(d) of CNS (Amendment) Act, 2022 as mentioned above. The recovered Bhang (Hemp) was sent to the Chemical Analyzer whose report was positive.

2. After completion of investigation, Investigating Officer submitted the report under Section 173, Cr.P.C against the appellant before the learned trial court at Khairpur. The charge was framed against the appellant on 11.01.2023, to which he pleaded not guilty and claimed trial of the case.

3. To substantiate it's case, the prosecution examined complainant / ASI Gulsher Maitlo (PW-1), mashir / PC Saifullah Laghari (PW-2), IO / SIP Shah Nawaz (PW-3) and Incharge Malkhana / WHC Nazar Muhammad. They exhibited numerous documents and other items and thereafter closed its side of evidence on 31.03.2023. The statement of the appellant was recorded under Section 342, of Cr.P.C, in which he denied all the allegations levelled against him and claimed false implication. However, the appellant did not record his statement on oath in disproof of prosecution allegations and likewise did not lead evidence in his defence.

4. The trial court after hearing the learned counsel for the parties and examining the evidence brought on the record, through impugned judgment dated 15.05.2023 convicted the appellant and sentenced him as earlier set out in this judgment. Hence, this appeal against conviction has been filed by the appellant.

5. The facts of the case as well as evidence produced before the trial Court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same is not be reproduced here so as to unnecessary repetition.

6. We have heard the learned Counsel representing the appellant, learned Additional Prosecutor General and with their assistance have carefully examined the entire available record.

7. Learned counsel for the appellant has contended that the appellant is innocent and has not committed the alleged offence; that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt especially as the safe custody of property and its transmission to the office of the Chemical Examiner has not been proved; that the despatcher failed to depose as to whether property was entrusted to him for its delivery to the Chemical Examiner. Lastly he submitted that the case of the prosecution was thus marred by gaps and defects and under such circumstances there was no reason to convict the appellant.

8. Conversely, the learned APG defended the impugned judgment and relying on the report of the Chemical Examiner contended that the parcel received was found to containing Bhang (Hemp), which is sufficient to establish the guilt of the appellant so as to prove the charge against him, hence his conviction ought to be sustained.

9. Having considered the matter in light of the record, we have observed that whilst the two prosecution witnesses furnished their testimony as to the recovery of Hemp(Bhang), and the investigation steps taken thereafter, the chain of custody remains shrouded in mystery as nothing was brought on record to show why the parcel was kept in malkhana for 04 (four) days prior to being sent to the Chemical Examiner, and even the official who is claimed to have taken the parcel to the office of the Chemical Examiner was not examined as witness. Needless to note that, for the Chemical Examiner's Report to have real probative value, the sanctity of the chain of custody is absolutely imperative. It is prosecution's responsibility that such chain of custody must be safe and secure because the report of the Chemical Examiner carries critical importance under the Act, 1997, and the proof of chain of custody can only ensure the reaching of recovered material to the office of the Chemical Examiner. We are fortified in this regard by the Judgment of the Honourable Supreme Court in the cases reported as The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), as well as, a more recent Judgment in Criminal Appeal No.184 of 2020, titled Mst. Sakina Ramzan v. The State, wherein it was held as under:

"The chain of custody or safe custody and safe transmission of narcotic drug begins with seizure of the narcotic drug by the law enforcement officer, followed by separation of the representative samples of the seized narcotic drug, storage of the representative samples and the narcotic drug with the law enforcement agency and then dispatch of the representative samples of the narcotic drugs to the office of the chemical examiner for examination and testing. This chain of custody must be safe and secure. This is because, the Report of the Chemical Examiner enjoys critical importance under CNSA and the chain of custody ensures that correct representative samples reach 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 drug or its representative samples makes the Report of the Chemical Examiner unsafe and unreliable for justifying conviction of the accused. The prosecution, therefore, has to establish that the chain of custody has been unbroken and is safe, secure and indisputable in order to be able to place reliance on the Report of the Chemical Examiner."

1. In narcotic cases it is the duty of prosecution to establish the seizure of contraband, taking of samples from the recovered stuff, their safe transmission from the spot to the police station and from police station to the Chemical Examiner, however, as stated above in the present case, I.O dispatched the parcel to the laboratory through PC Saifullah, who in his examination-in-chief has not uttered a single word that I.O delivered the parcel to him on 24.10.2022 and he delivered the same to the Chemical Examiner. Thus, the prosecution admittedly failed to adduce evidence of dispatcher in order to corroborate the chain of custody of property as unbroken, for which prosecution was liable to prove the safe custody and transmission of sealed sample parcel to the Chemical Examiner. I.O also failed to explain the delay of four (04) days for keeping the parcel with malkhana, therefore, the elements of tampering with the parcels cannot be ruled out and thereby such defect on the part of prosecution, cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against the accused beyond any reasonable doubt as held in the case of Muhammad Hazir v. The State (2023 SCMR 986) as under:

"3. After hearing the learned counsel for the appellant as well as the learned state counsel and perusing the available record along with the impugned judgment with their assistance, it has been observed by us that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrar nor the Constable Shah Said (FC-2391) who deposited the sample parcels in the concerned laboratory was produced. It is also a circumstance that recovery was affected on 10.02.2015 whereas the sample parcels were received in the said laboratory on 13.02.2015 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tampering with is quite apparent in this case. This Court in 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), Ekramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect 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."

1. Perusal of the record further reflects that there are material contradictions in the evidence of complainant / ASI Gulsher and mashir / PC Saifullah. According to complainant, the distance between Police Station and place of incident is about three (03) kilometers, whereas mashir / PC Saifullah deposed that said distance is only one (01) kilometer. The complainant deposed that he prepared memo. of arrest and recovery with the help of clipboard in standing position, whereas the mashir deposed that memo. was prepared by the complainant over bonnet of mobile vehicle. Though the evidence of complainant and mashir was recorded within four months of the alleged incident, yet their contradictory evidence make their presence at the time of alleged incident as doubtful.

2025 Y L R 499

[Sindh]

Before Naimatullah Phulpoto, ACJ and Irshad Ali Shah, J

Zubair Ahmed and another---Appellants

Versus

The State---Respondent

Special Criminal Anti-Terrorism Appeals Nos. 140 and 141 of 2023, decided on 27th August, 2024.

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

----Ss. 324, 353, 427 & 34---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 25)---Sindh Arms Act (V of 2013), Ss. 25 & 23(1)(a)---Attempt to commit qatl-i-amd, assault orcriminalforce to deter public servant from discharge of his duty, causing damage to property, common intention, act of terrorism and possession of unlicensed weapon---Appreciation of evidence---Benefit of doubt---Fake encounter---Accused, who were convicted and sentenced by the Anti-Terrorism Court, filed appeal before High Court---Despite cross-firing with sophisticated weapons no injury or even scratch was sustained by any police official during encounter which was unbelievable and did not appeal to a prudent mind---Fire shot injury sustained by one of the appellants on his right leg was allegedly caused by the police officials in a fake encounter---No damage was caused to the motorcycle used by the appellants in the alleged crime---Prosecution Witnesses from whom alleged motorcycle was snatched by the appellants deposed before Trial Court that one accused was wearing helmet whereas, another accused was wearing mask at that time, as such, he could not identify them---No photograph was taken by the police officials during search, seizure and arrest of the appellants despite carrying cellular phone---In a night time incident, no source of light was mentioned in evidence and mashirnama of arrest and recovery was also silent in that respect---In the mashirnama of arrest and recovery, description of the 30 bore pistol was mentioned as "new border special modified CAL 30 bore", but report of the Ballistic Expert was silent about such description---Safe custody and safe transmission of the recovered pistol had not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned police station---Investigating Officer failed to preserve the finger prints of the accused on weapons during course of encounter---One of the appellant/accusedwas a disabled person and he was empty handed at the time of police encounter and there was no evidence that he used criminal force to deter police party from discharge of its duty, thus, his false implication could not be ruled out---Injured accused fired several shots upon the police but not a single fire hit the police party---Police Officers failed to interrogate the appellants about their presence at the place of incident at such odd hours of night---There were also major contradictions in the evidence of prosecution witnesses particularly as to the places of patrolling and actual incident---Incident took place in a thickly populated area, however, no private person was associated---Standard of proof in the present case had to be far higher as compared to any other criminal case---Case should have been investigated by some other agency---Police, in such case, could not have been investigators of theirowncause---Such investigation which was woefully lacking independent character could not be made basis for conviction, that too when it was riddled with many lacunas and loopholes---Prosecution had not been able to prove its case against the accused beyond reasonable doubt---High Court allowed the appeal and acquitted the accused persons, by giving them benefit of doubt.

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

----Arts.164 & 165---Production of evidence that has become available because of modern devices, etc.---Order to override other laws---Articles 164 & 165 of Qanun-e-Shahadat, 1984 specifically permit the use of any evidence that may have become available because of modern devices or techniques and its Art. 165 overrides all other laws.

Zahid Sarfaraz Gill v. The State 2024 SCMR 934 rel.

(c) Criminal trial---

----Police witnesses, evidence of---Reliance---Evidence of the police officials cannot be discarded simply because they belong to police force, however, where the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time and it would be unsafe to rely upon the evidence of the police officials without independent corroboration---Judicial approach has to be cautious in dealing with such evidence.

Saifullah v. The State 1992 MLD 984 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---For giving 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.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ms. Shabana Chohan for Appellants.

Ali Haider Saleem Additional Prosecutor General Sindh for the State.

Date of hearing: 27th August, 2024.

Judgment

Naimatullah Phulpoto, ACJ.---Appellants Zubair Ahmed and Saleh Muhammad were tried by learned Judge, ATC-X, Karachi. After regular trial, vide judgment dated 19.08.2023, the appellants were convicted under Section 324/34 P.P.C. and sentenced to undergo 07 years R.I. each and to pay fine of Rs.50,000/- each, in case of default, they were directed to undergo 01 year R.I. Appellants were further convicted under Sections 353/34 P.P.C. and sentenced to undergo 02 years R.I each and to pay fine of Rs.20,000/- each, in case of default, they were directed to undergo 06 months R.I. They were also convicted under Section 427/34 P.P.C. and sentenced to 02 years R.I each and to pay fine of Rs.20,000/- each, in case of default, they were directed to undergo 06 months R.I. Appellant Zubair Ahmed was also convicted under Section 25 read with section 23(1)(a) of Sindh Arms Act 2013 and sentenced to undergo 07 years R.I and to pay fine of Rs.50,000/-, in case of default, he was directed to undergo 01 year R.I. All the sentences were directed to run concurrently. Appellants were extended benefit of Section 382-B Cr.P.C.

FACTUAL ASPECTS

1. Brief facts leading to the filing of the appeals are that on 09.10.2021, SIP Dharmendar of PS AVLC, City Division, Karachi left police station along with his subordinate staff for patrolling duty. While patrolling at various places, held Naka Bandi between Chilghazi Mazaar and Northern Bypass at 0255 hours. It is alleged that a motorcycle on which two persons were sitting appeared on the road. Police signaled the said motorcycle to stop but rider of the motorcycle did not stop, the motorcycle slipped and both accused persons fell down on the ground. Rider of the motorcycle started firing upon the police party, police also fired in retaliation. During cross-firing, it is alleged that not a single injury was caused to the police officials. However, appellant Zubair sustained fire arm shot on his leg. Police nabbed both the accused persons. On inquiry, injured accused disclosed his name as Zubair, from his personal search police secured unlicensed 30 bore pistol one bullet loaded in the magazine and one bullet loaded in its chamber and cash of Rs.400/-. On inquiry, another accused disclosed his name as Saleh Muhammad and from his possession police recovered cash of Rs.300/- and his NIC so also secured a motorcycle without number used by the accused in the commission of offence. Police also collected 03 empties of 30 bore pistol and 04 empties of SMG from the place of incident in presence of mashirs ASI Shabbir Azam and HC Allah Ditta. Injured accused Zubair was referred to medical officer for his examination and certificate. Thereafter, co-accused Saleh Muhammad and case property were brought to the police station where FIRs bearing Crime No. 1026/2021 for offences punishable under Sections 353, 324, 427, 34 P.P.C. read with Section 7 ATA of 1997 and Crime No. 1027/2021 for offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 were lodged on behalf of State.

2. During investigation, crime weapon 30 bore pistol, bullets and empties were dispatched to the Ballistic Expert, positive report was received. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections.

3. At trial, both cases one relating to police encounter and another relating to the recovery of unlicensed pistol of 30 bore from appellant Zubair Ahmed were jointly tried in terms of Section 21-M of Anti-Terrorism Act, 1997.

4. Trial Court framed charge against accused, they pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined 07 P.Ws who produced the relevant documents at trial. Thereafter, prosecution closed its' side.

5. Trial Court recorded statements of accused under Section 342 Cr.P.C, in which they denied the prosecution's allegations and claimed false implication in this case. Accused declined to examine themselves on oath in disproof of the prosecution allegations and did not lead evidence in their defence.

6. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 19.08.2023 convicted and sentenced the Appellants as stated above. Thereafter, appellants have preferred these appeals. Hence, through this common judgment, we intend to dispose of instant appeals.

7. Heard arguments at length and re-examined the entire evidence.

ANALYSIS OF EVIDENCE

1. It is the prosecution evidence that there was cross-firing with the sophisticated weapons but no police official sustained firearm injury or even scratch during alleged encounter which appears to be unbelievable and does not appeal to the prudent mind. On the other hand, appellant Zubair Ahmed had sustained fire shot injury on his right leg, which according to appellant Zubair Ahmed has been caused to him by the police officials in a fake encounter. From the deep scrutiny of evidence, it transpires that no damage was caused to the motorcycle used by the appellants in the commission of alleged crime. Police officials did not record or took photographs when search, seizure and arrest of the appellants was made. Now-a-days, every police official carries cellular phone. Article 164 of Qanun-e-Shahadat Order, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques and its Article 165 overrides all other laws as observed in the case of Zahid Sarfaraz Gill v. The State (2024 SCMR 934). It was night time incident, source of light is not mentioned by the police officials in their evidence and mashirnama of arrest and recovery is also silent on this aspect of the case. In the mashirnama of arrest and recovery at Ex.8/C, description of the 30 bore pistol is mentioned as "NEW BORDER SPECIAL MODIFIED CAL 30 BORE", but report of the Ballistic Expert is silent about description and it is mentioned in the report that 30 bore pistol was rubbed number. Additional Prosecutor General could not explain such omission in the prosecution evidence. Safe custody and safe transmission of the pistol used in crime has not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned police station. The Investigation officer failed to preserve the finger prints of the accused and on weapons during course of encounter. P.W-01 Muhammad Bilal Saeed from whom it was alleged that motorcycle was snatched by the appellants was examined by the prosecution, he deposed before trial Court that one accused was wearing helmet whereas, another accused was wearing mask at that time, as such, he could not identify them. According to the evidence of P.W-02 SIP Dharmendar, appellant Saleh Muhammad is a disabled person, he was empty handed at the time of police encounter. There is no evidence that appellant Muhammad Saleh who was empty handed used criminal force to deter police party from discharge of its duty. Involvement of disabled person in the present case clearly shows false implication of appellant Muhammad Saleh. False implication of appellant Zubair Ahmed, who was injured also cannot be ruled out as according to the case of prosecution, he fired several shots upon the police but not a single fire hit to the police party. We have also observed that PW-02 SIP Dharmendar as well as P.W-07 I.O. failed to interrogate the appellants about their presence at the place of incident at such odd hours of night. There are also major contradictions in the evidence of prosecution witnesses on material particulars of the case particularly, the places of patrolling and actual incident. Appellants in their statements recorded under Section 342, Cr.P.C have claimed false implication in this case. In such circumstances, when incident has been shown at thickly populated area, no private person was associated as mashir of the arrest and recovery, independent corroboration was essential, which is lacking in this case. Trial Court failed to appreciate the evidence of police officials on the settled principles of law.

2. No doubt, evidence of the police officials cannot be discarded simply because they belong to police force. Where, however, the fate of the accused persons hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at the time. It would be unsafe to rely upon the evidence of the police officials without independent corroboration. Judicial approach has to be cautious in dealing with such evidence, as held in the case of Saifullah v. The State (1992 MLD 984 KARACHI). Relevant portion is reproduced as under:-

"8. The evidence of police officials cannot be discarded simply because they belong to police force. In Qasim and others v. The State reported in PLD 1967 Kar. 233, it was held:

"A police officer is as good a witness as any other person. The standard of judging his evidence is the same on which the evidence of any other witness is judged."

However, in a case of this nature where the fate of an accused person hinges upon the testimony of police officials alone, it is necessary to find out if there was any possibility of securing independent persons at that time. Judicial approach has to be cautious in dealing with such evidence."

1. In the case of police encounter, the standard of proof should have been far higher as compared to any other criminal case for the reason that it is police case. It was, thus, desirable and even imperative that it should have been investigated by some other agency. Police, in this case, could not have been investigators of their own cause. Such investigation which is woefully lacking independent character cannot be made basis for conviction, that too when it is riddled with many lacunas and loopholes as mentioned above.

2025 Y L R 517

[Sindh]

Before Naimatullah Phulpoto and Irshad Ali Shah, JJ

Nadir and another---Appellants

Versus

The State---Respondent

Special Anti-Terrorism Appeals Nos. 203, 204 and 205 of 2023, decided on 9th October, 2024.

Penal Code (XLV of 1860)---

----Ss. 324, 353, 427 & 34---Pakistan Arms Ordinance (XX of 1965), S. 13---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, mischief causing damage to the amount of fifty rupees, common intention, possession of unlicensed weapon, act of terrorism---Appreciation of evidence---Infirmities in prosecution evidence---Prosecution case was that the accused in furtherance of their common intention deterred the police party from discharging its lawful duty as public servants by firing at them intending to commit their murder by resorting to terrorism; police also made firing at accused in self defence, due to which one of the accused sustained firearm injury---Record showed that no Police Official sustained fire shot injury during the alleged armed encounter though it was a direct one, which did not appeal to logic and appeared to be doubtful---Police witness who had prepared the memo of arrest and recovery had not been examined by the prosecution for the reason that he had been dismissed from service---By such act, valuable piece of evidence had been withheld by the prosecution which had prejudiced the appellants in their defence seriously---Even otherwise, in absence of author, not much reliance could legally be placed upon memo of arrest and recovery---Incharge of Malkhana had not been examined by the prosecution---Examination of said witness was essential to prove the safe custody of the property allegedly secured from the appellants---Person who intimated the Police Officials about the presence of the appellants at the place of the incident had not been cited as a witness; such omission on the part of the prosecution could not be overlooked---Report of the forensic expert was silent concerning the description of the pistols allegedly secured from the appellants mentioned in the memo of arrest and recovery---Such inconsistency could not be overlooked, which suggested manipulation of the pistols allegedly secured from the appellants---One of the motorcycles which the police party had and which allegedly sustained damage during the course of the encounter had never been produced at the trial and its non-production could not be ignored---No independent person was associated by the Investigating Officer to witness the preparation of the memo of the place of the incident, which was essential to maintain transparency---No blood mark was found at the place of the incident which suggested that the incident had taken place in a manner other than the one alleged by the prosecution---Contention of the appellants that the they had been involved in the case falsely by the police by foisting upon them unlicensed weapons to save them from legal consequences for causing fire shot injury to one of them could not be ignored---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond a shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Jamil and Asadullah for Appellants.

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

Date of hearing: 9th October, 2024.

Judgment

Irshad Ali Shah, J.----It is the case of the prosecution that the appellants in furtherance of their common intention deterred the police party of PS Khawaja Ajmair Nagri led by PC Ali Raza from discharging its lawful duty as a public servant by firing at them intending to commit their murder by resorting to terrorism; they were also fired at by PC Ali Raza in self-defence; as a result of such firing appellant Nadir Ali sustained fire shot injury on his right knee; both of the appellants were apprehended and from them were secured the unlicensed pistols of 9mm and 30 bores with magazines containing live bullets and a motorcycle, for which they were booked and reported upon. All three cases, one relating to the police encounter and the rest of two relating to recovery of unlicensed weapons from the appellants were amalgamated by the learned trial Court in terms of Section 21-M of ATA, 1997. At trial, the appellants denied the charge and the prosecution to prove the same, examined four witnesses and then closed its side. The appellants in their statements recorded under section 342 Cr.P.C denied the prosecution's allegation by pleading innocence; they did not examine anyone in their defence or themselves on oath. On completion of the trial, the appellants were convicted for the said offence and sentenced to undergo various terms of imprisonment spreading over ten years; all the sentences were directed to run concurrently with the benefit of Section 382(b) Cr.P.C by learned Judge, ATC Court No.XIII vide judgment dated 24.10.2024, which they have impugned before this Court by preferring the instant Spl.Crl. AT Appeals.

1. Heard arguments and perused the record.

2. As per complainant Ali Raza and P.W/Mashir PC Ahmed Ali Khan, they with rest of the police personnel were conducting patrol on their respective motorcycles within jurisdiction of PS Khawaja Ajmair Nagri, when reached at Nursery cut, they were intimated about the presence of the appellants at Jumay Raat Bazar with intention to commit some offence by a person on a motorcycle; on such information, they proceeded to the pointed place, the appellants were found available there; they with no loss of time fired at them and rest of the police officials; they too were fired at by complainant PC Ali Raza in self defence; as a result of such firing, appellant Nadir Ali sustained fire shot injury on his right knee; both the appellants were apprehended at the spot; ASI Jahangeer Nazir was called at the spot through cell phone; he came and effected the recovery of unlicensed pistols of 9mm and 30 bores with magazines containing live bullets and motorcycle from the appellants under memo prepared at the spot who then referred injured appellant to Abbasi Shaheed Hospital for examination of his injuries and treatment, then they went at PS Khawaja Ajmair Nagri, where the appellants were booked for the said offence. No police official sustained fire shot injury during the alleged armed encounter though it was a direct one which is not appealing to logic and appears to be doubtful. P.W ASI Jahangeer Nazir who has prepared the memo of arrest and recovery has not been examined by the prosecution for the reason that he has been dismissed from the service. By such act, valuable piece of evidence has been withheld by the prosecution which has prejudiced the appellants in their defence seriously. Even otherwise, in absence of author, no much reliance could legally be placed upon memo of arrest and recovery. The Incharge of Malkhana has not been examined by the prosecution. His examination was essential to prove the safe custody of the property allegedly secured from the appellants. The person who intimated the police officials about the presence of the appellants at the place of the incident has not been cited as a witness even; such omission on the part of the prosecution could not be overlooked. The report of the forensic expert is silent concerning the description of the pistols allegedly secured from the appellants which takes mention in the memo of arrest and recovery; such inconsistency could not be overlooked; it suggests manipulation of the pistols allegedly secured from the appellants. One of the motorcycles which the police party was having and allegedly sustained damage during the course of the encounter has never been produced at the trial; its non-production could not be ignored. No independent person was associated by the Investigating Officer Abdul Ghaffar to witness the preparation of the memo of the place of the incident; it was essential to maintain transparency. No blood mark was found at the place of the incident which suggests that the incident has taken place in a manner other than the one as is alleged by the prosecution. In these circumstances, the contention of learned counsel for the appellants that the appellants have been involved in this case falsely by the police by foisting upon them the unlicensed weapons to save them from legal consequences for causing fire shot injury to one of them could not be lost sight of.

3. The conclusion which could be drawn from the above discussion would be that the prosecution has not been able to prove its case against the appellants beyond a shadow of reasonable doubt and they are found entitled to such benefit.

2025 Y L R 532

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Sahito, J

Ghulam Ali and another---Appellants

Versus

The State---Respondent

Criminal Appeal No. S-52 of 2023, decided on 30th May, 2024.

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

----Ss. 324, 452, 336, 337-A(i), 506(ii), 504, 147, 148 & 149---Attempt to commit qatl-i-amd, house-trespass after preparation for hurt, itlaf-i-salahiyat-i-udw, shajjah-i-khafifah, criminal intimidation, intentional insult with intent to provoke breach of peace, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Accused were charged that they while armed with deadly weapons entered into the house of complainant party and injured the brother of complainant---Complainant, injured witness as well as all other eye-witnesses of the incident had fully explained the date, time, place of incident, manner of occurrence and involvement of the appellants---From the perusal of the evidence of the injured/eye-witnesses and other private witnesses, it appeared that they could not be termed as chance witnesses but rather would fall within the category of natural witnesses---From the appreciation of evidence, it was crystal clear that the prosecution remained successful in bringing cogent and unimpeachable direct evidence well supported and corroborated by the medical version against appellants---Evidence of the witnesses and injured witness could not be discarded merely because they were close relatives inter-se particularly since their presence at the place of occurrence was obvious as the incident took place in the house of the complainant party and in broad daylight---Appeal against conviction was dismissed, in circumstances.

(b) Criminal trial---

----Direct evidence---Scope---Direct evidence is material to decide the fact and to prove the charge---Insufficient, contradictory, discrepant direct evidence is deemed inadequate to hold a criminal charge as not proved but where direct evidence remains in the field and is natural and confidence inspiring then the requirement of independent corroboration was only a rule of abundant caution and not a mandatory rule to be applied invariably in each case.

Muhammad Ihsan v. The State 2006 SCMR 1857 rel.

(c) Criminal trial---

----Minor contradictions---Scope---Where the prosecution establishes its case beyond a reasonable doubt by producing reliable, trustworthy and confident inspiring evidence supported by the medical and circumstantial evidence then if there are some minor contradictions, which are always available in each and every case same may be ignored.

Zakir Khan v. The State 1995 SCMR 1793 rel.

Mian Taj Muhammad Keerio for Appellants.

Shahzado Saleem, Additional P.G. Sindh for the State.

Muhammad Yaseen Khaskheli for the Complainant.

Date of hearing: 20th May, 2024.

Judgment

Amjad Ali Sahito, J.---This judgment shall dispose of the fate of the instant Criminal Appeal filed by the above-named appellants/accused, assailing the judgment dated 07.12.2023, passed by the learned Assistant Sessions Judge, Khipro, in Sessions Case No.231 of 2021 (Re. The State v. Ghulam Ali and others), the outcome of FIR bearing Crime No.39/2021, offence under Sections 324, 452, 336, 337-A(i), 506(ii), 504, 147, 148 and 149, P.P.C., registered with Police Station Khipro, whereby they were convicted and sentenced as under:

Under Section 452, P.P.C.; Accused Ghulam Ali son of Muhammad and Waryam son of Umer are sentenced to undergo R.I for five years and to pay fine of Rs.20,000/- (Twenty thousand) each and in case of failure of payment of fine, they shall further suffer to undergo S.I for three months more.

Under Section 324, P.P.C.; Accused Ghulam Ali son of Muhammad and Waryam son of Umer are sentenced to undergo R.I for seven years and to pay fine of Rs.20,000/- (Twenty thousand) each and in case of failure of payment of fine, they shall further suffer to undergo S.I for three months more.

Under Section 337-A(i), P.P.C.: Accused Waryam son of Umer is sentenced to pay Daman Rs.10,000/- to injured Hakim and in case of failure of payment of Daman he shall suffer S.I for two months.

Under Section 336, P.P.C.: Accused Ghulam Ali son of Muhammad is smtenced to pay Arsh Rs.33,78,951/- equivalent to 50% of Diyat to injured Hakim and shall remain S.I till realization the payment of Arsh.

Under Section 336, P.P.C.: Accused Waryam son of Umer is sentenced to pay Arsh Rs.33,78,951/- equivalent to 50% of Diyat to injured Hakim and he shall remain S.I till realization of the payment of Arsh.

All the sentences awarded to appellants/accused named above shall run concurrently. However, the benefit of section 382-B Cr.P.C is extended to them.

1. The brief facts of the prosecution case are that two years ago the brother of the complainant namely Akram contracted a love marriage with Mst. Hooran, which annoyed Hooran's uncle Ghulam Ali Bhanbhro. On 06-03-2021, in the daytime, the complainant along with his brother Hakim, nephew Shadi, and sister-in-law Mst. Hooran and other family members were at their house and at about 1115 hours, the accused namely Ghulam Ali and Weryam, armed with desi pistols, Daim holding a hatchet, Shahmir with a lathi, and Hamzo with an iron rod, committed house-trespass by entering into the complainant's house. Upon entering, accused Ghulam Ali caught hold of Mst. Hooran by her arm and asked her to go with him, to which she refused. PW Hakim Ali tried to stop Ghulam Ali, during which time accused Ghulam Ali made straight fire intending to commit the murder of Hakim which hit him at his left arm. Accused Waryam also made a straight fire upon PW Hakim intending to commit his murder, which hit him at his face and head. The complainant party then raised cries, and the accused persons, using abusive language, issued murderous threats and fled away. The injured Hakim was taken to the PS, where they obtained a medical referral letter and then rushed to Taluka Hospital Khipro. He was then referred to Hyderabad for further treatment and later to Karachi. During the course of treatment of the injured in Karachi, the complainant returned and filed an application in court for lodging an FIR, which was lodged against the aforementioned persons.

2. After completion of the usual investigation, the Investigation Officer submitted a report under section 173 Cr.P.C before the competent Court of law and thereafter the case papers were supplied to the accused under receipt.

3. The charge against appellants/ accused was framed at Exh.2, to which they pleaded not guilty and claimed trial vide their plea recorded at Exh.2/A and Ex.2/B respectively.

4. To establish the accusation against the present appellants/accused, the prosecution examined PW-1 Complainant Adam at Ex.07 who produced an Order dated 31-03-2021 passed in Crl. Misc. Application No. 80/ 2021 by the Honourable Court of Additional Sessions Judge, Khipro at Ex.7/A and FIR at Ex.7/B. PW-02/Injured Hakim at Ex.8. PW-03 Shadi at Ex.09. PW-04/ Mashir Taj Muhammad at Ex.10 who produced memo. of injuries at Ex.10/A and memo. of site inspection at Ex.10/B respectively. PW05/Author of FIR, I.O/ASI Mushtaque Ahmed at Ex.11 who produced medical referral letter at Ex.11/A, entry No. 11, 13, 21 on one page at Ex. 11/B to 11/D. PW-06/MLO Dr. Sharjeel Khan at Ex.13 who produced provisional and final medical certificates, X-Ray and Radiologist expert opinion along with X-ray film, referred letter dated: 16-04-2021, complete medical file of injured issued by LUMHS with outward letter and Civil Hospital Karachi and letter of Special Medical Board dated: 11-08-2021 at Exs.13/A to 13/H. Thereafter, learned State Counsel closed the side of prosecution vide statement kept on record at Exh.14.

5. The statements of the appellants under section 342, Cr.P.C were recorded at Exs.15 and 22 and Exs.16 and 25 respectively and they had denied all the allegations levelled against them by the prosecution and claimed their innocence. However, they did not examine themselves on oath nor led any evidence in their defence. Thereafter A.D.P.P filed application under section 540, Cr.P.C which was allowed and then evidence of Associate Professor Dr. Amjad Ali Sehto (Member Special Medical Board) was recorded at Exs. 20 who produced DG health letter dated 01-06-2021 at Ex.20/A, board constitution letter No.4416/2022 dated 03-07-2021 at Ex.20/B, letter dated 12-07-2021 at Ex. 20/C, letter dated: 25-08-2021 at Ex.20/D, letter at Ex. 20/E, five films of CT scan of injured along with ultrasound of eye at Exs.20/F to 20/J, final medical opinion of Special Medical Board at Ex.20/K. Thereafter, again State Counsel closed the side of prosecution vide statement at Ex.14.

6. The learned trial court on evaluation of the evidence and after hearing the counsel for the parties, convicted and sentenced the appellants/ accused vide Judgment dated 07.12.2023, which they have impugned before this Court by preferring instant Criminal Appeal.

7. Learned counsel for the appellants mainly contended that the impugned judgment is against the law and facts of the case; that the present appellants are innocent and have falsely been implicated in this case by the complainant; that the complainant and eye-witnesses are related inter-se and inimical towards the appellant; that the evidence of prosecution witnesses is full of contradictions and discrepancies, which are fatal to the prosecution case. That Section 324, P.P.C. is not applicable in this case, as the accused persons have not repeated the fire upon the complainant party; that the conviction so recorded by the learned trial court under Section 324, P.P.C. is against the law; that there is matrimonial enmity between the parties and the accused have been falsely implicated in this case, and P.W/injured Hakim has not supported the case of the prosecution; Learned counsel lastly prayed for the acquittal of the accused.

8. On the other hand, the learned Additional Prosecutor General for State and learned counsel for the complainant argued that there was no mala fide on the part of the complainant to implicate the appellants in this case falsely; that the appellants named in the FIR with the specific role of making direct fires of the pistol up on the injured/witnesses with the intention to kill them; that the ocular testimony furnished by complainant and injured is corroborated with medical evidence. They further argued that the learned trial Court rightly appreciated the evidence while recording the conviction and sentence of the appellants in accordance with the law, thus they lastly prayed for dismissal of the instant appeal.

9. I have heard the learned counsel for the respective parties and perused the material available on record.

10. From the perusal of the record, it reflects that PW Hakim received the firearm injuries at the hands of the accused/appellants only on the ground that he has contracted marriage with Mst. Haroon. The said marriage was an outcome of love and affection between the parties. which annoyed the appellant's parties, however, they attacked the complainant party resulting in PW/injured Hakin became serious injured and he had lost his one eye. It is settled that no one could be granted the licence to take the law into his own hands and start executing culprits instead of taking him/her to the court of law. A Muslim marriage is a union between two individuals, guided by Islamic principles and laws. The marriage is conducted with the consent of both the parties. In the instant case, there was no complainant from Mst. Hooran that the complainant party had abducted her and contracted forcefully marriage with her. But due to Ghariat the accused party entered into the house of the complainant party and this unfortunate incident took place.

11. The complainant, injured witness, and other PWs have deposed that on 06.03.2021, the complainant along with his brother, nephew Shadi, and sister-in-law Hooran were at their house, and the above-mentioned accused persons duly armed with deadly weapons viz: pistols, hatchets, and lathies in their hands, along with other accused persons, appellant Ghulam Ali held Mst. Hooran from her arm to, take her back, upon which she raised a cry. Her brother Hakim tried to rescue her, and then Ghulam Ali made a straight fire upon PW Hakim intending to kill him, hitting him in his left arm, and appellant Waryam also made a straight fire upon PW Hakim, hitting him in his face and forehead. After the incident, the injured was brought to the PS Khipro by one Saleem, where ASI Mushtaque Ahmed perused the injuries and prepared a memo. of injuries in the presence of two PWs, namely Taj Muhammad and Ashraf. The injured was referred to Taluka Hospital Khipro, and thereafter to Hyderabad for treatment. The doctors, after examining the injured, referred him to Karachi for further treatment. The complainant produced the FIR at Ex.7/B. The prosecution also examined injured witness Hakim, who specifically assigned the role of the accused persons. PW Hakim deposed that on 06-03-2021, accused Ghulam Ali and Waryam of being armed with pistols, Daim armed with a hatchet, accused Hamzo armed with an iron rod, and accused Shahmir being armed with a lathi entered his house. Accused Ghulam Ali holding his niece Mst. Hooran by her arm to take her back, and then the accused made a straight fire which hit him in his left arm. Accused Waryam also caused a fire, and he sustained pellet injuries on his forehead, fell down, and lost consciousness. PW Shadi also supported the version of the complainant so also injured the witness. In cross-examination, PW2/injured witness Hakin admitted that he was unconscious and his brother Adam informed him about the registration of the FIR after 15/20 days.

12. The prosecution examined mashir Taj Muhammad, who deposed that in his presence, the memo. of injuries was prepared, and so also the memo. of the place of the incident. He and co-mashir Ashraf signed the memos. prepared by ASI Mushtaque Ahmed. The injured witness and other witnesses have supported the version of the complainant, which is also supported by medical evidence. The prosecution also examined retired ASI Mushtaque Ahmed. He produced a medical referral letter at Ex. 11/A, entry Nos. 11, 13, 21 at Exs.11/B to 11/D.

13. The medical certificate of the injured Hakim was produced by Dr. Sharjeel Khan (PW-06) also proves that the injured was referred to him on the date of the incident; he examined him on the same date and found multiple firearm injuries on his body. Dr. Sharjeel Khan deposed that he was posted as Incharge Medical Officer at Taluka Hospital Khipro on 06.03.2021 when the injured, namely Hakim, appeared in the hospital along with a police letter for his treatment, after examining the injured, referred him to LUMHS Hyderabad for expert opinion. He received the medical files of the injured from LUMHS Hyderabad and Karachi on 21-05-2021, and then the injuries were declared by him as Shujjah-i-Khaffifah, Ghayr-Jaifah Damiyah, and Ghayr-Jaifah Mutlamiyah. He issued the Final Medical Certificate, confirming that the kind of weapon used was a gunshot (pallets). He produced the medical certificate of the injured Hakim as Ex.13/A to Ex.13/H, which also proves that the injured were referred to him on the date of the incident, viz: 06.03.2021. Thereafter, the prosecution examined Associate Professor Dr. Amjad Ali Sehto (Member Special Medical Board) at Ex.20, who produced certain documents including the final medical opinion of the Special Medical Board. The injuries were declared by him as Shujjah-i-Khaffifah. Injuries Nos.2 to 6 were declared as Itlaf-i-Salahiyat Udw. During the examination, he also got a CT scan of the injured along with an ultrasound of the eye. Finally, it was declared by the doctors that the injured Hakim had lost his one eye due to a firearm injury.

14. So far the plea raised by the counsel for the appellants that Section 324. P.P.C. is not applicable in this case as accused persons have not repeated fire upon the injured witness. It is suffice to say that once an accused person presses the trigger of his firearm, Section 324, P.P.C. comes into action. Section 324, P.P.C. consisted of two parts i.e. commission of an act with intention or knowledge to commit Qatle-eamd, and in the second part, there is effect of the act done. Application of Section 324, P.P.C. has to be judged in the background of the number of the accused persons, the weapon carried by them and the opportunity available to them to complete the intended offence. In the instant case, when the injured was present in his house along with the complainant and other witnesses, the appellants duly armed with desi pistols along with co-accused duly armed with hatchets/lathis appeared at the place of incident and tried to kidnap the wife of injured Hakim on which he has offered his resistance consequently he received multiple pallets injuries on the different part of the body, hence ingredients of S. 324, P.P.C. are very much applicable in this case.

15. In the instant matter, the complainant, injured witness as well as all other eye-witnesses of the incident has fully explained the date, time, place of incident, manner of occurrence, and involvement of the appellants. There can be no denial to the legally established principle of law that it is always direct evidence that is material to decide the fact and to prove the charge. Insufficient, contradictory, discrepant direct evidence is deemed adequate to hold a criminal charge as not proved but where direct evidence remains in the field with that of its being natural and confidence-inspiring then the requirement of independent corroboration is only a rule of abundant caution and not a mandatory rule to be applied invariably in each case. Reliance may be placed upon the case of Muhammad Ihsan v. The State (2006 SCMR 1857) wherein the Apex Court has held that:

"5. It be noted that this Court has time and again held that the rule of corroboration is rule of abundant caution and not a mandatory rule to be applied invariably in each case rather this is settled principle that if the Court is satisfied about the truthfulness of direct evidence, the requirement of corroborative evidence would not be of much significance in that, as it may as in the present case eye-witness account which is unimpeachable and confidence-inspiring character and is corroborated by medical evidence."

2025 Y L R 561

[Sindh]

Before Adnan-ul-Karim Memon, J

Abdul REhman---Appellant

Versus

The State---Respondent

Criminal Appeal No. 57 of 2024, decided on 12th July, 2024.

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

----Ss. 392, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Accused were charged for snatching a mobile, wallet containing cash of Rs. 2000, ATM Card and copy of CNIC from the complainant at gun point---Complainant had admitted in his evidence that the incident took place just in front of the main gate of his house and he did not raise hue and cry---Complainant also admitted that one person was sitting on the backside of the motorcycle and had a pistol in his hand and after committing robbery, they fled from the place of occurrence and he told the incident to the Chowkidar present at the main gate of the society and Chowkidar closed the main gate, however he apprehended one accused, who was sitting on backside of motorcycle and other accused, who was driving the motorcycle fired from his pistol and succeeded in escaping---Complainant also admitted that no pistol was recovered from the present appellant---Trial Court acquitted one of the accused persons from the charge by giving him the benefit of the doubt on the premise that neither Arresting Officer nor Mushir of arrest (complainant) deposed a single word regarding arrest of acquitted accused in their entire evidence and such fact was a big blow to the prosecution case---If this was the position of the case, then entire case of the prosecution became doubtful---As no recovery was effected from the present applicant then the question of firing by him at the time of alleged incident did not arise---Chowkidar was not examined by the prosecution---Once the doubt hadbeen created in the prosecution case and coupled with no recovery of the alleged weapon from the applicant, conviction could not be made safely against the appellant---Admittedly, no weapon was used by the appellant in the commission of the incident as admitted by the complainant in his deposition, therefore, the punishment to the appellant under S.397, P.P.C was misplaced--- Circumstances established that the prosecution had failed to establish the guilt against the present appellant beyond the shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Conviction---Scope---No one should be convicted of a crime based on presumption in the absence of strong evidence of unimpeachable character and legally admissible.

(c) Criminal trial---

----Benefit of doubt---Scope---Mere heinous or gruesome nature of crime would not detract the Court of law in any manner from the due course to judge and make the appraisal of evidence in a laid down manner and to extend the benefit of reasonable doubt to an accused person.

(d) Criminal trial---

----Presumption of innocence of accused---Scope---Accused person is presumed to be innocent until and unless 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 reasonable doubt based on legally admissible, confidence inspiring, trustworthy and reliable evidence.

(e) Criminal trial---

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

(f) Criminal trial---

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

Ayub Masih v. State PLD 2002 SC 1048; Naveed Asghar and 2 others v. The State PLD 2021 SC 600 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

Muhammad Imran for Appellant.

Ms. Seema Zaidi, Additional PG for the State.

Abdul Aziz-ur-Rehman in person for Respondent No. 1.

Date of hearing: 1st July, 2024.

Judgment

Adnan-ul-Karim memon, J.---Appellant Abdul Rehman and another accused were tried by learned XII Additional Sessions Judge, Karachi East in Sessions Case No. 1377/2021 under Sections 392/397/34, P.P.C. After a regular trial, appellant Abdul Rehman was convicted and sentenced for an offense punishable under Section 397, P.P.C. for seven years with a fine of Rs. 50,000/- in case of default, the appellant would further undergo SI two months.

1. Brief facts leading to the filing of the instant appeal as mentioned by the trial Court in the impugned judgment is that complainant Aman ul Haq lodged an FIR stating therein that on 08.02.2021, at about 2015 hours, he accompanied his daughter namely Dua from her Tuition Center and brought her at his House No. N-90, Shamshad Housing Society, Jama-e-Milia, Karachi. His daughter went inside the house and he was standing outside the house on his motorcycle. Suddenly two boys on one motorcycle, wearing Kameez and Shalwar, arrived and a boy, who was sitting on the backside on the point of weapon, snatched his mobile phone LG-Touch, One Brown color wallet containing a cash amount of Rs. 2000/-, an ATM Card of MCB and Copy of CNIC. The society is covered with boundary walls having only one gate for entry and exist. After committing this incident accused escaped, however complainant immediately started his motorcycle and reached at main gate of the society where he informed about the incident to Chowkidar Muhammad Haneef. In the meanwhile, he saw the two accused coming on the motorcycle. The complainant shouted and pointed them to Chowkidar as same accused. The accused tried to run away through the main gate but Chowkidar pushed them and they fell along with their motorcycle. The Chowkidar apprehended one accused while the other stood and fired at Chowkidar but he remained safe due to a miss of fire. One of the accused after firing took his motorcycle and succeeded in escaping. Someone from Muhallah made a phone call to the police 15 helpline and informed them about the incident. Later on, Chippa Ambulance also arrived because the apprehended accused had sustained injuries due to falling from the motorcycle ASI Mushtaq Incharge police mobile arrived and enquired about details of the incident from the complainant. He took into his custody apprehended the accused who disclosed his name as Abdul Rehman son of Muhammad Sultan and disclosed the name of the escapee accused as Amir ASI Mushtaq conducted a personal search of the accused and recovered the snatched mobile phone LG-Touch and light brown skin color wallet containing cash amount of Rs. 2000/-, ATM Card of MCB and copy of CNIC. Another Keypad mobile phone of the accused and a cash amount of Rs. 500/- was also recovered from the accused. Such a memo. was prepared, recovered pistol and case properties were sealed separately on the spot. Thereafter, the injured accused was shifted to JPMC sealed properties brought at P.S., and an FIR was lodged.

2. On 04.05.2021, a formal charge was framed against accused Abdul Rehman and Aamir Zaib as Ex. 02, to which, they pleaded not guilty and claimed trial.

3. To prove its case prosecution examined as many as four witnesses. Details thereof are as under:-

PW-1 ASI Muhammad Nazir (Author of FIR) as Ex. 3. he produced a statement under S. 154, Cr.P.C of the complainant and FIR as Ex.3/A and Ex. 3/B

PW-2 Aman ul Haq (Complainant) as Ex 4, he produced a memo. of arrest and recovery, a memo. of seizure of empty, memo. of site inspection as Ex. 4/A to Ex.4/C

PW-3 SIP Rana Wakeel (Investigation Officer) as Ex.5, he produced entry No. 20, entry No. 22, Letter to the FSL examiner. FSL report, CRO record of accused as Ex. 5/A to Ex. 5/F

PW/-4 ASI Mushtaque Ali was examined as Ex. 12, he produced entry No. 16, letter, entry No. 19, photocopy of memo. of arrest and recovery of accused Aamir, and entry No.23 as Ex. 12/A to Ex. 12/E.

1. Statements of accused Abdul Rehman and Aamir Zaib under section 342, Cr.P.C. were recorded at Ex. 14 and Ex. 15, wherein they denied the accusation levelled against them by pleading their innocence. They neither examined themselves on Oath nor produced any defense witness and prayed for justice.

2. Trial Court after hearing the learned counsel for the appellant, and prosecutor, and while examining the evidence minutely by judgment dated 13.12.2023, convicted and sentenced the appellant as stated above. Hence, the appellant has filed an instant appeal against his conviction and sentence.

3. I have heard learned counsel for the parties and perused the material available on record with their able assistance.

4. The points, that require consideration, are that as to whether the evidence in the case is sufficient to sustain the conviction of the appellant under section 397, Cr.P.C. It shall be advantageous to reproduce section 397, P.P.C. herein below:-

"397. Robbery or dacoity, with attempt to cause death or grievous hurt. If, at the time of committing robbery or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years."

1. The appellant has admitted in his evidence that the incident took place just in front of the main gate of his house and he did not raise hue and cry. He also admitted that one person was sitting on the backside of the motorcycle and had a pistol in his hand after committing robbery, they fled from the place of occurrence and he told the incident to the Chowkidar present at the main gate of the society and Chowkidar closed the main gate, however he apprehended one accused, who was sitting on backside on motorcycle and other accused, who was driving the motorcycle fired from pistol and he succeeded to escape. He also admitted that no pistol was recovered from the present appellant. The trial Court acquitted the accused Aamir Zaib from the charge by giving him the benefit of the doubt on the premise that shockingly neither arresting officer ASI Muhammad Nazir nor Mushir of arrest (complainant) deposed the single word regarding arrest of accused Aamir Zaib in their entire evidence and this fact is big blow to prosecution case, if this is the position of the case, the entire case of the prosecution becomes doubtful as no recovery was effected from the present applicant then the question of firing at the time of alleged incident does not arise on the part of appellant. The Chowkidar was not examined by the prosecution. Once the doubt has been created in the prosecution case and coupled with no recovery of the alleged weapon from the applicant conviction cannot be made safely against the appellant.

2025 Y L R 572

[Sindh (Hyderabad Bench)]

Before Zafar Ahmed Rajput and Amjad Ali Bohio, JJ

Janan alias Janu and 2 others---Applicants

Versus

The State---Respondent

Crimial Miscellaneous Application No. D.01 of 2024, decided on 29th August, 2024.

Penal Code (XLV of 1860)---

----Ss. 302, 324, 353, 147, 148 & 149---Anti-Terrorism Act (XXVII of 1997), Ss. 6 & 7---Criminal Procedure Code (V of 1898), Ss. 561-A & 426---Suspension of sentence in trial of pending appeal---Scope---Accused were charged for committing qatl-i-amd of a police Head Constable---Accused were tried by Anti-Terrorism Court and awarded death sentence and their appeals were dismissed by the Appellate Court---Being aggrieved by the judgments of the Trial Court and Appellate Court, the petitioners filed criminal petition for special leave to appeal in the Supreme Court in which leave to appeal had been granted---During the trial and hearing of appeals accused were not admitted to bail---Neither the merit of the case could be touched nor was reappraisal of evidence permissible while deciding the application under S.426(2-B), Cr.P.C.---Applicants had not been able to show good grounds for suspension of their sentence and grant of bail under S.426(2-B) Cr.P.C.---Application was dismissed, in circumstances.

Atta Ullah alias Hasnain alias Hassan v. The State 2009 PCr.LJ 257 ref.

Meer Ahmed Mangrio and Irfan Ali Rahujo for Applicants.

Nazar Muhammad Memon, Addl. Prosecutor General, Sindh for the State.

Dates of hearing: 13th and 29th August 2024.

Order

Zafar Ahmed Rajput, J.--- Through instant Crl. Misc. Application under section 561-A, Cr.P.C, applicants (1) Janan alias Janu son of Kouro Chandio, (2) Aijaz son of Janan alias Janu Chandio and (3) Ali Hasan son of Gullan Chandio by invoking the provisions of section 426(2-B), Cr.P.C. seek their release on bail by suspending their sentence during pendency of their Cr. Jail Petitions Nos. 263 and 264 of 2020 before the Apex Court, on granting leave to appeal, vide order dated 08.02.2023.

1. Briefly stated facts of the case leading to the filing of present application are that the applicants were nominated in Crime/FIR No.380 of 2008, registered on 12.08.2008 at Police Station Dadu under sections 302, 324, 353, 147, 148, 149, P.P.C., read with sections 6/7, Anti-Terrorism Act, 1997 ("Act of 1997") for committing qatl-i-amd of H.C Roshan Ali, a member of the police force on duty. During course of investigation, on 17.08.2008, police arrested the applicants Janan alias Janu and Aijaz; after usual investigation, police submitted the challan against them by showing other co-accused, including applicant Ali Hasan as absconders. Applicants Janan alias Janu and Aijaz were tried by the learned Judge, Anti-Terrorism Court, Hyderabad under ATC Case No.308 of 2008, and were convicted under sections 302/149, P.P.C. read with section 6(2)(a), punishable under section 7(a) of the Act of 1997 and sentenced to death subject to confirmation vide judgment dated 24.12.2011. Having felt aggrieved by the conviction and sentence recorded by the Trial Court, the said applicants preferred Cr. Appeal No.D-405 of 2011 to this Court. Applicant Ali Hassan, who was shown absconder in challan, was subsequently arrested by the police on 16.01.2015. After completing necessary formalities, he was tried by the learned Judge, Anti-Terrorism Court, Naushero Feroz in Special Case No.03 of 2015 and was convicted for the offence under section 302(b), P.P.C. read with section 7(a) of Act of 1997 and sentenced to death subject to confirmation, vide judgment dated 09.03.2016. He assailed the said judgment before this Court in Cr. Jail Appeal No. D-23 of 2016.

2. Both the aforementioned appeals were dismissed by a learned Divisional Bench of this Court, vide separate judgments dated 02.07.2020, by maintaining the conviction and sentence recorded by the Trial Courts.

3. Being aggrieved by the said judgments of the Trial Courts and Appellate Court, the applicants filed Cr. Jail Petitions Nos.263 and 264 of 2020, respectively, for special leave to appeal in the Apex Court in which leave to appeal has been granted vide order dated 08.02.2023. The relevant portion of the leave granting order of the Apex Court is reproduced as under:-

"2. It has been argued, inter alia, by the learned counsel for the petitioners that P.W-7 who is eye-witness of the occurrence has resiled from his statement; that the identification parade was not properly conducted and that the material collected during the course of investigation was not put to the petitioners as per requirement of Section 342, Cr.P.C. The contentions raised by the learned counsel require consideration. We, therefore, deem it appropriate to re-appraise the entire evidence in the interest of safe administration of criminal justice. Leave to Appeal is accordingly granted in both these petitions."

1. Heard, record perused.

2. Learned counsel for the applicants submits that the applicants Janan and Aijaz are confined in judicial custody for last 16 years; that the Apex Court has indicated that the identification parade has not been held as per law and the material collected during the course of investigation was not put to the petitioners as per requirement of Section 342, Cr. P.C.; that since special leave to appeal has been granted by the Apex Court to applicants against the conviction awarded to them, the sentence is required to be suspended by admitting them on bail in view of section 426(2-B), Cr. P.C.

3. Conversely, learned Addl. P.G while opposing instant application maintains that the relief of suspension of sentence under section 426(2-B), Cr. P.C. is a discretionary relief and mere fact that the applicants have been granted leave to appeal by the Apex Court would not ipso facto give them right to seek the suspension of sentence; that no special circumstances have been pleaded for suspension of sentence. In support of his contention, he has relied on the case of Atta Ullah alias Hasnain alias Hassan v. The State reported as 2009 PCr. LJ 257.

2025 Y L R 604

[Sindh]

Before Mohammad Karim Khan Agha, J

Lutaf Ali---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. 507 of 2022, decided on 22nd October, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Delay of one day in lodging FIR---Inconsequential---Accused was charged for committing murder of wife of complainant by causing her knife/dagger injuries---Admittedly the FIR was lodged after a delay of one day however it had been fully explained as the complainant first had to take his deceased wife to the hospital who at that time was seriously injured but alive so his priority was to take her immediately to hospital where unfortunately she died and her body was then taken to another hospital where a post mortem was performed; then he had to make the funeral arrangements while being in a state of shock---Once the funeral had been carried out the FIR was immediately lodged---Even otherwise, the police had been informed by the complainant about the incident and in particular that the appellant had murdered the complainant's wife with a knife within an hour of the incident---As such based on the particular facts and circumstances of the case the delay in lodging the FIR was not fatal to the prosecution case---Appeal against conviction on two counts was dismissed except his acquittal to the extent of the murder of the unborn child.

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

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of wife of complainant by causing her knife/dagger injuries---Ocular account of the incident had been furnished by three eye-witnesses including complainant---Complainant was husband of the deceased who stated that on 02.01.2019 at about 01.40 pm he was returning from hospital with his wife/deceased, however, when they reached the gate of a school, he came across his son-in-law/accused---Accused asked the deceased where his wife was who was the complainant's daughter---When his wife/deceased replied that he did not know then the accused took out a knife and caused blows to his wife's abdomen and other parts of her body---Complainant was related to the deceased and also to the accused however no enmity or dispute had been proven between complainant and the appellant---Thus, mere relationship to the deceased was no reason to discard his evidence which had to be judged on its own worth---Complainant also knew the appellant before the incident which took place in broad day light as the appellant was his son-in-law---Incident went on for about five minutes and the complainant/eye-witness was close to the incident and would have got a good look at the appellant whom he already knew---Thus, there was no case of mistaken identity and no need to hold an identification parade in order to determine the identity of the appellant---Complainant was not a chance witness as he was the husband of the deceased and had every reason to be with her at the time of the incident---Complainant reported the incident immediately to the police in detail and also lodged his FIR with relative promptitude based on the particular facts and circumstances of the case which was not materially improved upon during the course of his evidence---Complainant named the appellant in his FIR with a specific role along with the other eye-witnesses---Complainant gave his evidence was found in a natural manner and was not dented at all during a lengthy cross-examination and as such his evidence was found to be reliable, trust worthy and confidence inspiring and was believable especially in respect of the identity of the appellant who murdered his wife---Other eye-witness, who was the brother-in-law of the complainant and brother of the deceased stated that on 02.01.2019 he met the complainant and his sister/deceased at the gate of a hospital---Said witness corroborated the evidence of the complainant in all material respects---Said witness was not a chance witness as he had every reason to accompany his sister and her husband to home from the hospital---Another eye-witness knew the complainant, his wife/deceased and her brother as they all used to live in the same village---According to the evidence of said witness, he had gone to NADRA office and when he reached the main gate of a school on 02.01.2019 at 01.40 pm he saw the complainant, his wife/deceased and witness, whereafter he heard cries and saw the accused causing knife blows to the deceased---Said witness then helped to take the deceased to hospital---Said witness had no enmity or ill will with the appellant and had no reason to implicate him in a false case---Medical evidence and medical reports fully supported the eye-witness/ prosecution evidence in that the deceased received at least 3 stab wounds on the abdomen and 2 other incised injuries which led to her death---Appeal against conviction on two counts was dismissed except his acquittal to the extent of the murder of the unborn child.

Habib Ahmed v. The State 2020 YLR 238; Muhammad Akram v. The State 2009 SCMR 230; Muhammad Imran v. The State 2021 SCMR 69; Zulfiqar Ahmad and another v. The State 2011 SCMR 492; Khalid Mehmood v. The State 2017 SCMR 201; Ayyaz Ahmed v. Allah Wasaya and others 2004 SCMR 1808 and Muhammad Amin v. The State PLD 2006 SC 219 ref.

Amal Sherin v. The State PLD 2004 SC 371; 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) Criminal trial---

----Corroboration---Scope---Corroboration is only a rule of caution and not a rule of law.

Muhammad Waris v. The State 2008 SCMR 784 rel.

(d) 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 wife of complainant by causing her knife/dagger injuries---Record showed that three days after the occurrence, accused confessed to the murder before the police and took the police to the place where he had hidden the murder weapon which was a place which he only knew about---It was proved through evidence that any particular police witness had any enmity or ill will towards the accused and had any reason to falsely implicate him in the case by foisting the knife on him---In such circumstances, the evidence of the police witnesses could be fully relied upon---Appeal against conviction on two counts was dismissed except by his acquittal to the extent of the murder of the unborn child.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd---Appreciation of evidence---Confession, retraction of---Scope---Accused was charged for committing murder of wife of complainant by causing her knife/dagger injuries---Although confession was retracted at trial, however, reliance could be placed on such retracted judicial confession against its maker if it was found that it was made voluntarily and it was made with the object of telling the truth based on the prosecution case---Minor irregularities in recording the confession before the Judicial Magistrate could be ignored---No evidence was available to suggest that the confession was anything but voluntarily made with the object of telling the truth---Thus, Court believed and placed reliance on the appellant's retracted judicial confession especially as there was no material procedural irregularities in the manner in which the appellant's confession was recorded in that he was produced before the Magistrate and was aware of that fact, his hand cuffs were removed, no police men was in the room, he was given adequate reflection time, he was told that his confession could be used against him in evidence in a Court of law, he was checked for evidence of maltreatment and none was found, he was not handed back to the police after his confession and was handed over to judicial custody after making his confession---Appeal against conviction on two counts was dismissed except his acquittal to the extent of the murder of the unborn child.

Ch. Muhammad v. Yaqoob v. The State 1992 SCMR 1983; Bahadur v. State PLD 1996 SC 336; Muhammad Amin v. The State PLD 2006 SC 219; Manjeet Singh v. The State PLD 2006 SC 30 and Azeem Khan v. Mujahid Khan 2016 SCMR 274 rel.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Substitution of accused---Scope---Accused was charged for committing murder of wife of complainant by causing her knife/dagger injuries---In the present case, it did not appeal to logic, commonsense or reason that a husband and brother would let the real murderer of their wife/sister get away/ scot free and falsely implicate an innocent person by way of substitution.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Accused was charged for committing murder of wife of complainant by causing her knife/dagger injuries---Record showed that all the witnesses were consistent in their evidence and even if there were contradictions, 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 appellant---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the time the complainant and his wife/deceased were returning home from hospital with witness to the appellant confronting the deceased over hiding her daughter/his wife and on her denial he viciously stabbing her with a knife, to his running away, to the arrest of the appellant, to the recovery of the knife on his pointation and to his confession before the Judicial Magistrate---Appeal against conviction on two counts was dismissed except his acquittal to the extent of the murder of the unborn child.

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---Scope---Accused was charged for committing murder of wife of complainant by causing her knife/dagger injuries---Appellant was convicted on two counts of murder, one in respect of the deceased and one in respect of her unborn child---Appellant was not put on notice about the murder of an unborn child in the charge which only came to light during the course of the medical evidence, thus, accused was acquitted of the charge of the murder of the unborn child but his conviction and sentence was maintained for the murder of the deceased and for one set of compensation to the legal heirs as set out in the impugned judgment---Appeal against conviction on two counts was dismissed except his acquittal to the extent of the murder of the unborn child.

Musharraf Azhar for Appellant.

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh and Mumtaz Ali Shah, Assistant Prosecutor General Sindh for the State.

Date of hearing: 15th October, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Lutaf Ali was tried in the Model Criminal Trial Court/Ist Additional Sessions Judge, Thatta in Sessions Case No. 145 of 2019 in respect of Crime No. 03 of 2019 under Section 302, P.P.C. registered at P.S. Mirpur Bathoro and after a full-fledged trial vide judgment dated 26.07.2022 he was convicted under section 302(b), P.P.C. and sentenced to suffer imprisonment for life for two counts of murder. He was also directed to pay Rs.2,00,000/- as compensation to the legal heirs of deceased in terms of Section 544-A, Cr.P.C against both the convictions. Such compensation shall be recoverable as arrears of land revenue; however in case of default in payment of compensation, the appellant shall undergo further R.I. for six months. The benefit of section 382-B, Cr.P.C. was extended to the appellant.

1. The brief facts of the case as per FIR are that on 02.01.2019 at about 1340 hours near main gate of Bathoro High School, Taluka Mirpur Bathoro, District Sujawal appellant Lutaf Ali Mallah caused death of his mother-in-law Mst. Tasleem by causing her dagger / knife injuries in her abdomen and other parts of her body over the matrimonial dispute with his wife Mst. Suraya, at the time of incident deceased Mst. Tasleem was pregnant of four months. Hence the aforesaid FIR was lodged.

2. After usual investigation, police submitted formal challan of the case before the concerned court. After completing necessary formalities, learned trial court framed charge against the accused, to which he pleaded not guilty and claimed trial.

3. At trial, in order to prove its case, the prosecution examined 9 witnesses and exhibited numerous documents and other items. The statement of the accused / appellant was recorded under Section 342, Cr.P.C. in which he denied the prosecution allegations levelled against him and claimed his false implication in the commission of alleged crime. However, neither he examined himself on oath in disproof of the prosecution case nor led any evidence in his defence.

4. On conclusion of the trial, learned trial court after hearing learned counsel for the parties and appraisal of prosecution evidence brought on record, convicted and sentenced the accused / appellant vide impugned judgment, as set out earlier in this judgment, hence the appellant has preferred this appeal against his conviction.

5. The evidence produced before the trial court finds an elaborate mention in the impugned judgment, 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 of any wrong doing and that he has been falsely implicated in this case by the complainant hence the delay in lodging the FIR; that the evidence of the eye-witnesses cannot be safely relied upon as they are put up witnesses; that there are material contradictions in the evidence of the witnesses which renders their evidence unreliable; that the appellants confession before the judicial magistrate was retracted and was not made voluntarily and as such it cannot be safely relied upon; that the alleged crime weapon being the knife/dagger/churri was foisted upon the appellant by the police and that for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions learned counsel for the appellant has placed reliance on the cases of Habib Ahmed v. The State (2020 YLR 238) and Muhammad Akram v. The State (2009 SCMR 230).

7. On the other hand, learned Additional Prosecutor General Sindh has have fully supported the impugned judgment. In particular, he contended that any delay in lodging the FIR had been fully explained; that the evidence of the eye-witnesses to the murder could be safely relied upon; that the retracted judicial confession of the appellant was made voluntarily with the object of telling the truth and as such it could be safely relied upon; that the eye-witnesses evidence was supported/ corroborated by the medical evidence; that the appellant himself volunteered to produce the crime weapon / knife before the police which was recovered by the police on his pointation 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 Muhammad Imran v. The State (2021 SCMR 69), Zulfiqar Ahmad and another v. The State (2011 SCMR 492), Khalid Mehmood v. The State (2017 SCMR 201), Ayyaz Ahmed v. Allah Wasaya and others (2004 SCMR 1808) and Muhammad Amin v. The State (PLD 2006 Supreme Court 219).

8. I have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, the impugned judgment with their able assistance and have considered the relevant law including that cited at the bar.

9. Based on my reassessment of the evidence of the PW's, especially the medical evidence, the blood stained earth recovered at the scene of the crime I find that the prosecution has proved beyond a reasonable doubt that on 02.01.2019 at about 1340pm Ms Tasleem Mallah (the deceased) was murdered by a sharp cutting instrument in front of the main gate of high school Mirpur Bathoro Taluka Mirpur Bathoro District Sujawal.

10. The only question left before me therefore is whether it was the appellant who murdered the deceased with a sharp cutting instrument at the said time, date and location?

11. After my reassessment of the evidence I 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 admittedly the FIR was lodged after a delay of one day however I find that this delay in lodging the FIR has been fully explained as the complainant first had to take his deceased wife to the hospital who at that time was seriously injured but alive so his priority was to take her immediately to Mirpur Bathoro hospital where unfortunately she died and her body was then taken to Sujawal Hospital where a post mortem was performed then he had to make the funeral arrangements while being in a sate of shock and once the funeral had been carried out the FIR was immediately lodged. Even otherwise, the police had been informed by the complainant about the incident and in particular that the appellant had murdered the complainants wife by knife within an hour of the incident as per PW 7 Iman Bux who was the IO of the case as is confirmed by the entry exhibited at 10/A at P.165 of the paper book and as such based on the particular facts and circumstances of this case I do not find that the delay in lodging the FIR is fatal to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b) That the appellant is named in both the entry at Exhibit 10/A which was lodged with an hour of the incident and the FIR with a specific role.

(c) I find that the prosecution's case primarily rests on the evidence of the eye-witnesses to the murder of the deceased and whether I believe their evidence especially in connection with the correct identification of the appellant whose evidence I shall consider in detail below;

(i) Eye-witness PW 1 Dhani Bux. He is the complainant and the husband of the deceased. According to his evidence on 02.01.2019 at about 1.40pm he was returning from hospital with his wife/deceased when he met PW Lal Bux, who was the brother of his wife/deceased, at the gate of the hospital who accompanied them home.When, however, they reached the gate of high school Mirpur Bathoro he came across his son in law/accused. The accused asked his wife/deceased where his wife was who was the complainant's daughter. When his wife/deceased replied that he did not know the accused took out a knife and caused blows to his wife's/deceased abdomen and other parts of her body. After raising cries the accused ran away. The complainant took his injured wife to Taluka hospital Mirpur Bathoro and then reported the matter to the police. His wife/deceased died in hospital and was sent to Taluka Hospital Shujawal for her post mortem.

This eye-witness is related to the deceased and also to the accused however no enmity or dispute has been proven between this eye-witness and the appellant and thus the mere relationship to the deceased is no reason to discard his evidence which has to be judged on its own worth. In this respect respect reliance is placed on the cases of Amal Sherin v. The State (PLD 2004 SC 371) and Dildar Hussain v. Muhammad Afzaal alias Chala (PLD 2004 SC 663).

This eye-witness also knew the appellant before the incident which took place at 1.40pm in broad day light as the appellant was his son in law. The incident went on for about 5 minutes and the eye-witness was close to the incident and would have got a good look at the appellant who he already knew. Thus, there is no case of mistaken identity and no need to hold an identification parade in order to determine the identity of the appellant. The appellant's presence at the scene of the incident is corroborated by PW 2 Lal Bux and PW 3 Gul Soho Ali who are also eye-witnesses. Admittedly this eye-witness at the time of the incident was old, infirm and suffered from impaired vision at the time of the incident but there is no way that he could have failed to identify the appellant who was a few feet away from him in broad day light who he could even recognize by voice being his son in law. Importantly he reported the incident to the police within an hour of the incident naming the appellant as the person who murdered his wife by knife after dropping her off at the hospital.

This eye-witness was not a chance witness as he was the husband of the deceased and had every reason to be with her at the time of the incident. As he was infirm and old it was but natural that his wife/deceased would have accompanied him to the hospital. He was unable to intervene as the incident happened quickly as he was old, infirm and unarmed. It has also come in evidence that the appellant after having an argument with his wife who had left him thought the deceased knew where she was and was refusing to tell him and hence his motive for attacking her. As mentioned o earlier he reported the incident immediately to the police in detail and also lodged his FIR with relative promptitude based on the particular facts and circumstances of the case which was not materially improvement upon during the course of his evidence. He named the appellant in his FIR with a specific role along with the other eye-witnesses. He gave his evidence in a natural manner and was not dented at all during a lengthy cross-examination and as such I find his evidence to be reliable, trust worthy and confidence inspiring and believe the same especially, in respect of the identity of the appellant who murdered (sic) his wife/deceased.

I 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 I find the evidence of this eye-witness to be of good quality and believe the same. In this case however there are more than one eye-witness.

(ii) Eye-withess PW 2 Lal Bux. He is the brother in law of the complainant and the deceased is his real sister. According to his evidence on 02.01.2019 he met the complainant and his sister/deceased at the gate of taluka hospital Mirpur Bathoro. He corroborates the evidence of the complainant in all material respects and also mentions PW Gul Soho who was sitting on one side.

This witness was not a chance witness as he had every reason to accompany his sister and her husband home from the hospital. He is named in police entry being exhibit 10/A which was lodged within hours of the incident and also in the relatively promptly lodged FIR as an eye-witness. He gave his S.161, Cr.P.C statement within one day of the incident which was not materially improved upon during the course of his evidence. He knew the appellant from before as he was related to him and hence there was no need for an identification parade. It was a day light incident and he got a good look at the appellant from close range and as such there is no case of mistaken identity. He gave his evidence in a straight forward manner and was not dented despite a lengthy cross-examination. I find his evidence to be trust worthy reliable and confidence inspiring and believe the same especially in respect of the correct identification of the appellant. The same considerations apply to his evidence to that of the complainant.

(iii) Eye-witness PW 3 Gul Soho. He is an independent witness who knew the complainant, his wife/deceased and her brother PW Lal Bux as they all used to live in the same village. According to his evidence he had gone to the NADRA office in Mirpur Bathoro and when he reached the main gate of the high school on 02.01.2019 at 1.40pm he saw the complainant, his wife/deceased and PW Lal Bux when after hearing cries he saw the accused cause knife blows to the deceased. He then helped take the deceased to hospital.

This witness had no enmity or ill will with the appellant and had no reason to implicate him in a false case. He gave his Section 161, Cr.P.C statement a day after the incident which was not materially improved on during his evidence. It was a day light incident so he would have seen the incident clearly. It is unclear how well he knew the appellant and how far away he might have been from the incident and he might have been a chance witness however he gave his evidence in a straight forward manner and was not dented during a lengthy cross-examination. As such taking all the above into consideration I place some weight on his evidence but lesser than that of the other eye-witnesses especially in terms of correct identification of the appellant.

Thus, based on my believing the evidence of the 2 eye-witnesses and a third one to a lesser extent what other evidence/ material supportive/corroborative or other wise 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)

(d) Three days after his arrest the appellant confessed to the murder before the police and he took the police on his pointation to the place where he had hidden the murder weapon which was a place which he only knew about. That it has not been proven through evidence that any particular police witness had any enmity or ill will towards the appellant and had any reason to falsely implicate him in this case for instance by foisting the knife on him and in such circumstances it has been held that the evidence of the police witnesses can be fully relied upon and as such I rely on the police witness evidence. In this respect reliance is placed on the case of Mushtaq Ahmed v. The State (2020 SCMR 474).

(e) Three days after his arrest and one day after the recovery of the murder weapon on his pointation the appellant was brought before a judicial magistrate where he made a judicial confession to the murder of the deceased which is reproduced below for case of reference;

Section 164, Cr.P.C Statement (Confession) of the appellant before PW-9 Muhammed Amir judicial magistrate in material part;

"Question; What do you have to say

Answer: I have to confess that I have committed this murder of my mother in law because she wanted to sell my wife. She has already sold two of her daughters. She has sold them to different persons. It was her business. She used to say that she will sell my wife and what will I do. She threatened to kill my daughter when she was born. She used to ask me to leave her daughter. Many people used to threaten us. My brother Khan Muhammad had given money to my mother in law at the time of delivery of my daughter to take my wife to Karachi but she hid the money. My wife told me that her mother has asked her to kill my baby when she saw her first time and then they will take my wife. My mother in law sold her two daughters to Thaeems. They wanted to take my wife too. Thaeems threatened my wife that they will take her. My mother in law was in connivance with them."

Although this confession was retracted at trial it is well settled by now that I can relay on this retracted judicial confession as against its maker if I find that (a) it was made voluntarily and (b) it was made with the object of telling the truth based on the prosecution case and that even minor irregularities in recording the confession before the judicial magistrate can be ignored. In this respect reliance is placed on the cases of Ch. Muhammad v. Yaqoob v. The State (1992 SCMR 1983), Bahadur v. State (PLD 1996 SC 336) Muhammad Amin v. The State (PLD 2006 SC 219), Manjeet Singh v. The State (PLD 2006 SC 30) and Azeem Khan v. Mujahid Khan (2016 SCMR 274).

In this case the confession fully ties in with and corroborates the eye-witness evidence. There is no evidence that the confession was anything but voluntarily made with the object of telling the truth. Thus, I believe and place reliance on the appellant's retracted judicial confession especially as there were no material procedural irregularities in the manner in which the appellant's confession was recorded in that he was produced before a magistrate and was aware of this fact, his hand cuffs were removed, no police men was in the room, he was given adequate reflection time, he was told that his confession could be used against him in evidence in a court of law, he was checked for evidence of mal treatment and none was found, he was not handed back to the police after he confessed and was handed over to judicial custody after making his confession.

(f) That it does not appeal to logic, commonsense or reason that a husband and brother would let the real murderer of their wife/sister get away scott free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammad Ashraf v. State (2021 SCMR 758)

(g) That the medical evidence and medical reports fully support the eye-witness/ prosecution evidence in that the deceased received at least 3 stab wounds to the abdomen and 2 other incised injuries which lead to her death.

(h) 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 time the complainant and his wife/deceased were returning home from the hospital with PW Lal Bux to the appellant confronting the deceased over hiding her daughter/his wife and on her denial he viciously stabbing her with a knife to him running away to the arrest of the appellant to the recovery of the knife on his pointation to his confession before the judicial magistrate.

(i) That the motive as per FIR and evidence on record is that the appellant thought that the deceased was hiding his wife from him.

2025 Y L R 617

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Imran Khan Brohi---Appellant

Versus

The State---Respondent

Crl. Bail Application No. S.74 of 2024, decided on 15th April, 2024.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonestly issuing a cheque---Pre-arrest bail, confirmation of---Further inquiry---Accused-petitioner was charged for issuing cheques dishonestly, which were dishonoured when presented before the concerned bank---No doubt the applicant was nominated in the FIR; however, it was registered with an inordinate delay of more than five months, for which no plausible explanation had been furnished by the prosecution---Delay in criminal cases had always been deprecated by the superior Courts---As far as the amount in question was concerned, the applicants had placed on record number of documents through statements, which on perusal revealed that the parties had strained relations over a business transaction; hence, they disputed the claim of each other---In view of earlier litigation between parties, the element of mala fide on the part of complainant could not be ruled out---Hence, the basic ingredients for grant of pre-arrest bail, were very much attracted and applicable to present case---Moreover, there were disputed facts which were to be thrashed out by the Trial Court after recording pro and contra evidence of the parties at trial---Hence, the case against the applicants required further enquiry within the meaning of subsection (2) to S.497, Cr.P.C.---Consequently, bail application was allowed and interim pre-arrest bail granted to the applicant earlier was confirmed.

Ch. Saeed Ahmed Khalil v. the State and others 2023 SCMR 1712; Muhammad Imran v. The State 2023 SCMR 1152; Zafar Nawaz v. The State 2023 SCMR 1977; Abdul Rasheed v. The State and another 2023 SCMR 1948; Adnan Shehzad v. The State and another 2021 PCr.LJ 914; Shahid Hussain v. the State 2021 PCr.LJ Note 88; Muhammad Shabbir v. The State and others 2020 YLR Note 22; Muhammad Azhar Iqbal v. the State and another 2021 PCr.LJ 2189 and Ahmed Shabeel Bhatti and others v. the State and others 2023 SCMR 1 ref.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 rel.

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

----Ss. 497 & 498---Bail---Observations made in bail order---Scope---Observations made in a bail order are tentative in nature, which should not influence the Trial Court, in any manner, while conducting trial of the case.

Abdul Rehman Mughal along with Applicant (on bail).

Ali Anwar Kandhro, Addl. Prosecutor General Sindh for the State.

Nadeem Ahmed Khoso along with the Complainant.

Date of hearing: 15th April, 2024.

Order

Muhammad Saleem Jessar, J.---Through instant bail application, Applicant Imran Khan son of Rahim Bux Brohi seeks his admission to pre-arrest bail in Crime No.105 of 2023, registered with Police Station City, Jacobabad, for offence punishable under Section 489-F, P.P.C. The applicant filed anticipatory bail application bearing No.981/2023 before the Court of Session, which later was assigned to learned Additional Sessions Judge-I/ MCTC, Jacobabad, who after hearing the parties as well as the Prosecutor declined such plea of the applicant through his order dated 24.01.2024; hence, instant bail application has been maintained.

1. Learned Counsel submits that prior to registration of FIR of this case the applicant Imran Khan and his brother Kabeer Ahmed had filed an application under sections 22-A and 22-B, Cr.P.C vide Cr. Misc. Application No.892/2023 before the Ex-Officio justice of Peace, Jacobabad against the complainant of this case and others, which by order dated 13.09.2023 was disposed of; hence the complainant filed instant case against him. The main contention of learned Counsel for the applicant is that the applicant had purchased cars from the complainant and had delivered blank cheques to him as guarantee and that the applicant had paid entire amount to the complainant and had also returned files of the cars except three cars, but they have not returned the cheques issued by the applicant, as they intended to extort more amount from the applicant. He further submits that after furnishing surety before this Court the applicant has joined the trial before the trial Court and has never misused the concession. As far alleged cheque is concerned, per learned Counsel, the applicant has disputed the same by submitting documentary evidence, which is yet to be considered and determined by the trial Court; hence, in such a situation the case against the applicant requires further enquiry, therefore, prays for grant of bail application. In support of his contentions, he places reliance upon the cases reported as Ch. Saeed Ahmed Khalil v. The State and others (2023 SCMR 1712), Muhammad Imran v. The State (2023 SCMR 1152), Zafar Nawaz v. The State (2023 SCMR 1977), Abdul Rasheed v. The State and another (2023 SCMR 1948), Adnan Shehzad v. The State and another (2021 PCr.LJ 914); Shahid Hussain v. the State (2021 PCr.LJ Note 88) Muhammad Shabbir v. The State and others (2020 YLR Note 22) and Muhammad Azhar Iqbal v. The State and another (2021 PCr.LJ 2189).

2. Learned Addl. P.G. submits that since there are disputed facts, therefore, in the light of dicta laid down by the learned Apex Court in the case of Ahmed Shakeel Bhatti and others v. The State and others (2023 SCMR 1), he has no objection for grant of bail application.

2025 Y L R 622

[Sindh]

Before Mohammad Karim Khan Agha and Omar Sial, JJ

Mukhtiar Ali Chandio and others---Applicants

Versus

The State and others---Respondents

Criminal Bail Applications Nos. D-12, D-15, D-17 and D-18 of 2024, decided on 9th May, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(1), third proviso---Penal Code (XLV of 1860), Ss. 409, 419, 420, 468, 471, 477-A & 34---Prevention of Corruption Act (II of 1947), S.5---National Accountability Ordinance (XVIII of 1999), Ss. 9(a), (iii), (iv), (v), (vi), (xi), (xii), 10 & 20---Anti-Money Laundering Act (VII of 2010), Ss. 3 & 4---Criminal breach of trust, cheating by personation, cheating, forgery of valuable security, will etc., forgery, using as genuine a forged document, falsification of account, common intention, criminal misconduct, corruption and corrupt practices, money laundering---Bail, grant of---Statutory ground of delay in conclusion of trial---Allegations against the applicants were that they misappropriated government funds meant for acquisition of land for construction of portion of a Motorway---Statutory bail on the ground of delay under S.497, Cr.P.C, was not a discretionary relief to be given by the Courts---Once all the limbs of the third proviso of S.497, Cr.P.C had been made out, bail would be granted as of right---Since none of the applicants had been accused of an offence punishable with death the first limb was made out---All of the applicants had been in jail for a period of about 18 months and no witness had been examined, thus no delay had been caused on the part of accused/ applicants in the conclusion of the trial, and as such the second limb was made out---Record showed that there were 43 accused who would all be entitled to cross-examine 208 witnesses through a separte counsel so it was hard to see how such a trial could be concluded in maximum five years---In such circumstances, it would be unjust and potentially a violation of various articles of the Constitution to keep the applicants behind bars especially as they might be acquitted at the end of the trial and no compensation would be available to them despite such a long period of incarceration---None of the applicants was a previously convicted offender for an offence punishable with death or imprisonment for life or was a person who, in the opinion of the Court, was a hardened, desperate or dangerous criminal or was accused of an act of terrorism punishable with death or imprisonment for life---Since all the applicants had met all the requirements of the third proviso to S. 497(1), Cr.P.C, they were all entitled to statutory bail on the grounds of delay in conclusion of their trial as of right---Bail applications were allowed, in circumstances.

Shahid Umar v. Chairman Nab and 2 others 2019 PCr.LJ 370; The State/ ANF v. Muhammad Asim Khan 2022 YLR Note 64; Chairman NAB v. Nasar Ullah and 5 others PLD 2022 SC 497; and Husnain Mustafa v. The State 2019 SCMR 1914 ref.

Muhammad Usman v. The State and another 2024 SCMR 28 rel.

Shahab Sarki, Farooq H. Naek, Ishrat Ali Lohar, Muhammad Arif Kallar and Muhammad Arshad Shar for Applicants.

Ghulam Abbas Sangi, Assistant Attorney General for the State.

Niaz Hussain Mirani, Special Prosecutor NAB along with IO Irfan Ali.

Date of hearing: 24th April, 2024.

Order

Mohammad Karim Khan Agha, J.---The applicants seek post-arrest bail in References Nos. 01 and 03 of 2023 after rejection of their post-arrest bail by learned Accountability Court No.II Hyderabad (Trial Court).

1. The brief facts of the prosecution case are that based on news clipping dated 12.11.2022, regarding misappropriation in government funds meant for acquisition of land for construction of Hyderabad to Sukkur M-6 Motorway, an inquiry was authorized on 23.11.2022 by the NAB authorities to probe the matter and on its completion, the said inquiry was upgraded into investigation. During the course of the investigation it surfaced that various private persons of both Districts i.e Matiari and Naushahro Feroze in collusion with government officials (which include the present applicants) are involved in embezzlement of funds which were meant for acquisition of land for construction of Hyderabad to Sukkur M-6 Motorway by way of dummy awards in violation provisions of Land Acquisition Act. The present accused persons were arrested during course of investigation and on completion of investigation References bearing Nos. 01 and 03 of 2023 were filed against them and co-accused persons before the learned trial Court, which were clubbed together and are pending adjudication before the learned trial Court. As noted above the present accused persons filed applications for post-arrest before the learned trial Court in aforesaid References which were dismissed hence they have approached this Court for post-arrest bail. Since common question of law and facts is involved in all the captioned bail applications, as such all are being decided through this single Order.

2. Learned counsel for the applicants have contended that all the applicants be admitted to post arrest bail based on the ground of Statutory delay in accordance with section 497, Cr.P.C. According to them, all the applicants have been in jail for a period of 18 months and no delay in the trial has been caused on their part and as such they are entitled to bail on statutory grounds of delay in that they have served more that one year in jail and the trial against them has not yet been completed through no fault of their own. In support of their contentions they placed reliance on the cases (i) Shahid Umar v. Chairmn nab and 2 others [2019 PCr.LJ 370], (ii) The State ANF v. Muhammad Asim Khan [2022 YLR Note 64 Sindh], (iii) Chairman NAB v. Nasar Ullah and 5 others [PLD 2022 SC 497], iv) Muhammad Usman v. The State and another [2024 SCMR 28], (v) Dr. Asim Hussain and others v. The State [2017 P PCr.LJ 631]; (vi) Husnain Mustafa v. The State [2019 SCMR 1914], and two unreported Orders dated 24.06.2021 and 03.04.2024 passed by a Division Bench of this Court in C.Ps No.D-2148, 2281 of 2017, C.P No.D-2069 of 2019 as well as Cr. Bail Application Nos. D-51 of 2023 respectively.

3. On the other hand learned Special Prosecutor NAB opposed the grant of bail on Statutory grounds of delay on the basis that the offence was a very heinous one which had caused a large loss to the national exchequer; that there was a likelihood that the applicants would abscond; that no delay had been made on the part of the NAB in concluding the trial although he conceded that no delay had also been caused by any of the applicants and as such the grant of bail to all the applicants be dismissed.

4. We have considered the submissions of the parties, perused the material available on record and considered the relevant case law.

5. It is noted that none of the applicants have applied for bail on merits but only on the statutory ground of delay in conclusion of their trial. As such it is only this aspect which we shall consider in determining their bail applications.

6. Initially under the National Accountability Ordinance 1999 (NAO) offences under the NAO were not bailable and the accused had to approach the High Court for bail under its constitutional jurisdiction. Statutory bail due to delay in conclusion of the trial was also excluded although bail could be granted for delay in concluding the trial on hardship grounds at the discretion of the court acting in its constitutional jurisdiction on criteria laid down by the authorities of the Supreme Court.

7. In the last few years whole sale amendments however have been made to the NAO. One of the most significant ones is that NAO offences are now bailable and bail can be granted by the trial court under the relevant provisions of the Cr.P.C. In this respect Section 17 of the NAO reads as under;

"17. [Provisions] of the Code to apply.

(a) Notwithstanding anything contained in any other law for the time being in force, unless there is anything inconsistent with the provisions to this Ordinance, the provisions of the Code of Criminal Procedure, 1898 (Act V of 1898), shall mutatis mutandis, apply to the proceedings under this Ordinance. (bold added)

(b) Subject to sub-section (a), the provisions of Chapter XXIIA of the Code shall apply to trials under this Ordinance.

(c) .......

(d) ......."

1. As such following such amendment now a days since the NAO does not specifically bar the right to bail or make the offences under the NAO non- bailable Section 497 (post arrest bail) and section 498 Cr.P.C (pre-arrest bail) will now govern bail in cases under the NAO which has now to be applied for initially before the trial court and appealed to the High Court, and finally the Supreme Court under these sections, if necessary.

2. No longer is it necessary to seek bail directly from the High Court in offences under the NAO through its constitutional discretionary jurisdiction but even when it was the case the Supreme Court had deprecated the delay in concluding trials under the NAO equating such delays to the potential violation of the fundamental right to life, liberty and the right to an expeditious trial and had underlined the importance of granting bail in cases under the NAO for delay in their conclusion from this perspective and was quite prepared to grant bail on hardship grounds especially on the touchstone of the above violations of the Constitution. In this respect the Supreme Court in the case of Chairman NAB v. Nasrullah (supra) held as under;

"7. "Delay" in the conclusion of a criminal trial is antithetic to the very concept of a "fair trial" and "due process" guaranteed by Article 10A of the Constitution. The right to a fair trial is a cardinal requirement of the rule of law. If an accused cannot be tried fairly for an offence, he should not be tried for it at all. Conclusion of trial within a reasonable time is an essential component of the right to a fair trial. The prolonged pre-trial detention of the accused also defies the presumption of innocence, another essential element of the right to a fair trial, for an accused is presumed innocent until he is proven guilty by proof beyond reasonable doubt. Even before the addition of Article 10A in the Constitution, the right to a fair trial and due process was well-entrenched in our jurisprudence and considered to be a part of the right of access to justice enshrined in the constitutional right to be dealt with in accordance with law guaranteed by Article 4 and the fundamental right to life and liberty guaranteed by Article 9 of the Constitution. The incorporation of the right to a fair trial and due process by Article 10-A in the Constitution as an independent fundamental right underscores the constitutional significance of fair trial and due process and like other fundamental rights, it is to receive a liberal and progressive interpretation and enforcement.

1. The NAB Ordinance though does not provide for the release of an accused on bail pending his trial but ensures the expeditious conclusion of the trial, and thereby eliminates the possibility of protracted detention of the accused before his conviction. Under Section 16(a) of the NAB Ordinance, the trial is to proceed on a day-to-day basis and to be concluded within thirty days. The bar on granting bail to the accused under the NAB Ordinance is equitably balanced by providing for the trial to proceed on a day-to-day basis and its conclusion within thirty days. This statutory balance between the bar to grant bail and the expeditious conclusion of the trial would be rendered meaningless if an under-trial accused is detained for a long unexplained and unjustified period without determination of his guilt. While Section 16(a) of the NAB Ordinance that provides for concluding the trial within a period of thirty days is not to be construed strictly and applied rigidly as held in Tallat Ishaq, it manifests clearly the legislative intent for expeditious conclusion of the trial. The Legislature cannot be presumed to have intended an inordinate delay in conclusion of the trial and a prolonged detention of an under-trial accused, as a reasonable intention must always be attributed to the Legislature. Therefore, when the provision of NAB Ordinance requiring conclusion of trial within thirty days is not implemented, the corresponding provision barring grant of bail to the accused would also become proportionally plaint. If the scheme of a law in regard to a vital part fails, the sanctity of the other part, as observed by Salahuddin, J. in Zahur Ilahi, must of necessity be affected and what appears to be rigid must give way to flexibility. Inordinate delay in conclusion of the trial of an accused, for no fault on his part, being not envisaged by the NAB Ordinance would inevitably attract the constitutional protections under Articles 4, 9 and 10A of the Constitution. In such a situation, it is just, fair and equitable that the prosecution (NAB) should not oppose bail, and if it does so, the courts would consider the opposition as unreasonable and grant bail, enforcing the fundamental rights of the accused.

9. Inordinate or long delay in the conclusion of the trial for no fault of the accused and his protracted detention without determination of his guilt, as held by this Court in Riasat Ali, amount to harassment and abuse of the process of law. Such delay can therefore be a valid ground for releasing the accused on bail and restoring his fundamental right to life and liberty. No doubt, the right to life and liberty guaranteed by Article 9 of the Constitution is "subject to law" but the law, which can curtail this right, means a law that promotes larger public interest and not a law that impedes "fair trial" and limits "due process". The general criminal law has balanced the public interest and individual rights to life and liberty by recognizing the right of an accused to be released on bail, in case the trial against him is not concluded, for no fault on his part, within a specified period from the date of his detention, that is, one year for offences not punishable with death and two years for offences punishable with death. Tallat Ishaq relied upon by the learned counsel for the petitioner also recognizes the ground of "shocking, unconscionable and inordinate delay" in the conclusion of the trial as a ground for granting the accused time relief of bail. Tallat Ishaq, however, does not specify what period of delay would be considered as "shocking, unconscionable and inordinate". It has left to the discretion of the courts to determine it in the peculiar facts and circumstances of each case. Such a discretion must be structured equitably and exercised uniformly. In this regard, the courts can borrow guidance from, and act upon, the legislative wisdom codified in the general criminal law balancing the public interest with the individual rights, and can accordingly give effect to the scheme of the NAB Ordinance and enforce the fundamental rights of the accused to life, liberty, fair trial and due process guaranteed under Articles 9 and 10A of the Constitution".

1. As noted above now a days Section 497 Cr.P.C which deals with post arrest bail, which the applicants have applied for, is applicable to bail in cases under the NAO which is set out below for ease of reference;

497. When bail may be taken in case of non-bailable offence. (1) When any person accused of any non-bailable offence is arrested or detained without warrant by an officer-incharge of a police station, or appears or is brought before a Court, he may be released on bail, but he shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life or imprisonment for ten years.

Provided that the Court may direct that any person under the age of sixteen years or any woman or any sick or infirm person accused of such an offence be released on bail:

Provided further that a person accused of an offence as aforesaid shall not be released on bail unless the prosecution has been given notice to show cause why he should not be so released.

Provided further that the Court shall, except where it is of the opinion that the delay in the trial of the accused has been occasioned by an act or omission of the accused or any other person acting on his behalf, direct that any person shall be released on bail-

(a) who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period exceeding one year or in case of a woman exceeding six months and whose trial for such offence has not concluded; or

(b) who, being accused of an offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of a woman exceeding one year and whose trial for such offence has not concluded:

Provided further that the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life. (bold added)

1. It is noted that the applicants have all applied for post arrest bail under the third proviso to section 497, Cr.P.C. which has three main limbs which all need to be satisfied;

(a) They are not accused of an offence punishable with death and

(b) They have been detained for such offence for a continuous period exceeding one year and

(c) They are not a previously convicted offenders for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

1. It is significant that when dealing with cases of statutory bail on the ground of delay under section 497 Cr.P.C this is not a discretionary relief to be given by the courts. Once all the limbs of the third proviso of section 497 Cr.P.C have been made out bail is tobe granted as of right as was held as under in the case of Muhammad Usman (Supra);

"The right of an accused to seek bail on statutory grounds cannot be defeated for any other reason except on the ground as has beenexplicity described under the third and fourth provisos to section 497(1) of Cr.P.C. The accused becomes entitled to bail as of right after the statutory period expressly stated in clauses (a) and (b), as the case may be, have expired and the trial has not concluded. This accrual of right is manifest from the language of the third proviso. Such a right can only be defeated if the prosecution is able to show that the delay in the trial was attributable to an act or omission of the accused or a person acting on his behalf." (bold added)

1. Turning to see whether the three limbs of the third provision to section 497 Cr.P.C have been made out in the applications in hand.

(a) Since none of the applicants have been accused of an offence punishable with death the first limb is made out.

(b) All of the applicants have been in jail for a period of about 18 months (i.e., over one year) and no delay has been caused on their part in the conclusion of the trial and as such the second limb is made out.

In terms of delay in concluding the trial it is notable that the Reference against the applicants was filed before the concerned accountability court on 18.07.23 with the charge being framed on 15.08.23 and thereafter 3 witnesses evidence was recorded. The National Accountability Bureau (NAB) then filed a supplementary reference on 17.01.24 and an amended charge was framed on 21.02.24 which means that the evidence of all 3 witnesses will now need to be rerecorded. The net result now is that the applicants have been in jail for 18 months and no witness has been examined to date. There are 43 accused who will all be entitled to cross-examine 208 witnesses through a separate counsel so it is hard to see how such a trial can be concluded in a minimum of 5 years and in such circumstances it would be unjust and potentially a violation of various articles of the Constitution to keep the applicants behind bars especially as they might be acquitted at the end of the trial and no compensation would be available to them despite such a long period of incarceration. Even if we gave a direction to complete the trial within 6 months it is apparent that this direction could not be complied with based on the above discussion (where the evidence of not a single one of the potential 208 witnesses has been led. It is certainly not a case which is at the fag end. Quite the opposite and as such would prove fruitless and only prolong the misery of further incarceration for another 6 months for the applicants and as such would achieve no useful purpose. Even otherwise since statutory bail on the grounds of delay is a right as opposed to discretion, as discussed earlier, it is doubtful whether any such direction could be given under the law which in any event would not be binding on the trial court. In many ways NAB seems to be its own worst enemy in delaying trials but putting so many accused and so many witnesses into a reference so that the trials virtually become never ending. Most NAB trials continue for years on end so inevitably statutory bail on the grounds of delay will be granted by the courts. The time has come, in order to ensure effective and expeditious prosecutions, for NAB to carefully manage its cases and ensure that only the most responsible persons are included in the reference with the strongest documentary evidence and fewest number of witnesses.

(c) None of the applicants is a previously convicted offender for an offence punishable with death or imprisonment for life or is a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

1. Thus, based on the above discussion since all the applicants have met all the requirement of the third provision to section 497 Cr.P.C they are all entitled to statutory bail on the grounds of delay in concluding their trial under that section as of right.

2. The argument that the crime is heinous and therefore bail should be denied on statutory grounds we find to be misconceived as even the legislature under section 497 Cr.P.C has given person's accused of murder (which carries a potential death sentence or life imprisonment on conviction whereas for offences under the NAO the maximum sentence on convection is 14 years imprisonment) the ability to be permitted bail on Statutory grounds due to a delay in the conclusion of their trial. It is not the heinousness of the offence which is of such significance as per the scheme of section 497 Cr.P.C but the necessity of completing trials speedily so that persons who might be acquitted after their trial have not been left to languish in jail for years on end whilst their trial is concluded provided that they have not caused the delay in concluding the trial keeping in view that it is the duty of the State to expeditiously prosecute those it charges with offences and deprives them of their liberty. In this respect reliance is placed on the case of Dr. Asim (Supra) which held as under;

"It is well settled that object of trial is to make an accused to face the trial and not to punish an under trial prisoner. The basic idea is to enable the accused to answer criminal prosecution against him rather than to rot him behind the bars. Accused is entitled to expeditious access to justice, which includes a right to fair and expeditious trial without any unreasonable and inordinate delay. The intention of law is that the criminal case must be disposed of without unnecessary delay. It is not difficult to comprehend that inordinate delay in imparting justice is likely to cause erosion of public confidence in the judicial system on one hand and on the other hand it is bound to create a sense of helplessness, despair feeling of frustration and anguish apart from adding to their woes and miseries"

1. It is also well settled by now that bail cannot be withheld as a punishment and the heinousness nature of the crime is no reason to refuse bail. In this respect reliance is placed on the cases of The State through ANF v. Muhammed Asim Khan (Supra) and Hasnain Mustafa v. State (supra).Furthermore, despite the entitlement to bail for the applicants on the statutory ground of delay it cannot be lost sight of that this is a case involving white collar crime where the evidence is mostly based on documentary evidence which cannot be tampered with by the applicants and the fact that the applicants are no longer required for investigation as the amended charge has now been framed.

2025 Y L R 652

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Salahuddin Ahmed---Appellant

Versus

Khurram Sultan Abbasi and others---Respondents

F.R.A No. 06 of 2018, decided on 27th September, 2024.

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

----Ss. 6, 17 & 24---Ejectment application---Change of ownership---Bona fide personal need---Denial of relationship of landlord and tenant---Tenant alleged that he entered into a sale agreement with previous owner of disputed premises and asserted payment of consideration and possession---There was pending suit for specific performance between the tenant and previous owner---Subsequent owner after issuance of notice qua change of ownership filed an application under S.17 of the Cantonments Rent Restriction Act, 1963 (Act), which was allowed by the Additional Controller of Rents---Contention of the tenant was that the Additional Controller of Rents had no jurisdiction to adjudicate upon the rent matter---Validity---Section 6 of the Act had laid down a scheme, whereby, the Controller of Rents is appointed by a notification in Official Gazette for one or more cantonments---Appellant had not disputed that the Additional Controller of Rents had been appointed through notification as stipulated in law, thus, the plea of appellant was a repelled---Ground on which the application under S.17 of the Act was filed by the respondent was related to his personal bona fide need and not default in payment of rent---Subsequent landlord/respondent in the application as well as affidavit in evidence had categorically stated that he had purchased the demised premises for his personal bona fide use, which assertion had not been controverted by the tenant in cross-examination of respondent---Instead, respondent had been asked questions regarding the suit filed by the tenant against the previous owner---Nothing rebutting the ground of personal bona fide use of respondent, had been propounded by the tenant through any oral or documentary evidence, thus, the case of respondent on the ground of personal bona fide stoodproved---As regards the case of appellant that he had purchased the property from previous owner, if the tenant succeeded in his suit for specific performance, he would succeed in acquiring possession of the property---Attorney of the tenant had admitted possession of the demised premises in the capacity of tenant and depositing the rent in the court,thus, no further proof in presence of such admission was needed to show the nature of relation of the landlord and tenant---First Rent Appeal was dismissed, in circumstances.

PLD 1989 Kar. 404; PLD 2015 SC 401; 2001 SCMR 1888; 2019 YLR 2500; 2019 YLR 2846 and 2018 CLC Note 97 ref.

2020 YLR 61; Civil Petition No. 1152 of 2018 rel.

Khawaja Shams-ul-Islam along with Javeria Saleem and Asfandyar Khan for Appellant.

Saleem Thepdawala for Respondent No. 1.

Ghulam Muhammad Dars for Respondent No. 2.

Date of hearing: 19th September, 2024.

Judgment

Muhammad Iqbal Kalhoro, J.---Respondent No.1 filed an application under section 17 of Cantonments Rent Restriction Act, 1963 (Act, 1963) against appellant in respect of a Bungalow No.15-B/II, 22nd Street, Khayban-e-Tanzeem, Phase-V, DHA, Karachi. He has stated in the application that he has purchased the property from Syed Shahzad Ali, who had rented the said bungalow to appellant w.e.f 01.07.2010 against monthly rent of Rs.25,000/-. He has further disclosed that he has purchased the said Bungalow for personal bona fide use, hence he sent a legal notice to appellant dated 23.12.2015 to vacate the Bungalow but he failed to even respond to the same. Hence, he has filed application.

1. This application was contested by the appellant on the ground that he was not the tenant but had purchased the property and paid US$ 62091.00 to previous owner but since he did not perform his part of agreement, he has filed a Civil Suit No.161/2016 against him for specific performance of contract. He has further taken a plea in the written reply that there is no relationship of tenant and landlord between him and respondent No.1; that the application is an outcome of mala fide.

2. Learned Additional Controller of Rents by way of impugned order has allowed the application and ordered the appellant to vacate the demised premises within 30 days, hence this appeal.

3. Learned counsel for appellant has contended that Additional Controller of Rents has no jurisdiction to adjudicate upon the matter; that Additional Controller of Rents is no one but Additional Cantonment Executive Officer, he is not appointed under section 6(2) of the Act, 1963, and powers conferred upon him to adjudicate rent matters are illegal, void abinitio. He in this regard has relied upon PLD 1989 Karachi 404 and PLD 2015 SC 401. Learned counsel has further submitted that appellant is in possession of demised premises in capacity of purchaser and not as a tenant which he had purchased against payment of US$ 62091; that he was put in possession of the property by previous owner against occupancy charges of Rs.25000/- per month till the appellant was able to arrange amount of sale consideration; that subsequently appellant paid the sale consideration to the previous owner in shape of US dollars but he failed to perform his part of contract, hence the appellant filed a civil suit which is pending adjudication before this court on original side; that sale between respondent No.1 and previous owner is manipulated one in order to defeat the civil case put up by the appellant before this court for seeking enforcement of his rights; that sale deed dated 14.12.2015 shows that respondent No.1 was delivered vacant peaceful physical possession of the property which is false because appellant was in occupation of the property at the time of alleged sale deed between the parties and respondent No.1 was never delivered possession of the property, hence the sale of the demised premises between the parties was incomplete and not enforceable. He has relied upon 2001 SCMR 1888, 2019 YLR 2500, 2019 YLR 2846 and 2018 CLC Note 97.

4. On the other hand, learned counsel for respondent No.1 has supported the impugned judgment and has relied upon 2020 YLR 61 to establish jurisdiction of the Additional Controller of Rents to adjudicate upon the matter. He has further submitted that very issue was taken up by this court in F.R.A. No.-02/2018 in the case of Saeed Mazhar Ali v. Mrs. Aroosa Mubashir and another, which was challenged before the Supreme Court in Civil Petition No.1152/2018 and upheld by an order dated 16.04.2018.

5. I have heard the parties and perused material available on record including case law relied upon by learned counsel. Insofar as issue of jurisdiction of Additional Controller of Rents is concerned, section 6 of the Act, 1963 has laid down a scheme whereby the Controller of Rents is appointed by a notification in official gazette for one or more cantonments. Learned counsel for appellant has not disputed that the Additional Controller of Rents in this case has been appointed through a notification as stipulated in law. Further in the case of Saeed Mazhar supra, this court has discussed this issue in detail as follows:-

Thus, in consequence to above legal position, I would prefer to attend the challenge made by the learned counsel for the appellant with reference to Section 6(2) of the Act. This challenge is entirely based on section 6 of the Act therefore, it would be appropriate to have a direct reference to the same which reads as:-

'Section 6. Appointment of Controller.-(1) The (Federal Government) may, for purposes of this Act, by notification in the official Gazette, appoint a person to be the Controller of Rents for one or more cantonments.

(2) The (Federal Government) may also, by notification in the official Gazette, appoint a person to be the Additional Controller of Rents for one or more cantonments.

The plain reading of the above makes it clear that 'appointment of controller' requires only issuance of notification which however has not been made subject to 'consultation of Chief Justice' rather the absolute competence has been vested with the Federal Government to appoint 'a person' as 'Controller or Additional Controller' by issuing notification in official gazette. Legally, in name of interpretation the Court cannot add or delete anything in or out of above provision. The reference may well be made to the case of Khan Gul Khan v. Daraz Khan 2010 SCMR 539 wherein it is held as:-

1. It is a settled proposition of law that Courts have only power to interpret the law as laid down by this Court in various pronouncements. See Zia-ur-Rehman's case PLD 1973 SC 49. In the grab of interpretation, the Courts have no power to add or omit even a single word from the provision of law. In Muhammad Tariq's case supra by holding that pre-emptor and vendee are two distinct classes the distinction between the pre-emptor and vendee is not based on any legal, valid reason or logic or mandate of section itself.

In another case of Lanvin Traders, Karachi v. Presiding Officer, Banking 2013 SCMR 1419 it was held as:

"46. The above discussion as regards the scope and interpretation of Order XXI, Rule 66 of the Code, leaves me in no doubt to hold that firstly nothing could be added or read in a provision of law which is not provided therein by the legislature.

I would further add that the scope of interpretation is to make a bona fide attempt to unfold ambiguous words or phrases without disturbing the object and intention of the legislature rather legally every attempt even while interpreting such ambiguous thing, the intention and object of the legislation has to be protected. Reference may well be made to the case of Mumtaz Hussain v. Nasir Khan 2010 SCMR 1254 wherein it is held as:-

\10. It is cardinal rule of interpretation that objects made reasons of a Statute is to be looked into as an extrinsic aid to find out legislative intent only when the meaning of the Statute by its ordinary language is obscure or ambiguous. But if the words used in a statue are clear and unambiguous then the Statute itself declares the intention of the Legislature and in such a case it would not be permissible for a Court to interpret the statute by examining the object and reasons for the Statute question.

Further, that status of the 'Act' aimed to control of rent matters of certain classes of buildings within the limits of cantonment area only hence the Act shall enjoy the status of special law. The special law shall prevail over the general law and the Courts are not supposed to widen the scope thereof by adding or deleting anything else object and intention of the legislature shall fail.

Since, the literal and plain language of the Section 6 of the Act does not leave any room for presuming even that the appointment of the Controller or Additional Controller would require consultation of the Chief Justice hence legally the plea of learned counsel for the appellant to such an extent cannot be accepted.

1. Now, insofar as merits of the case are concerned, the attorney of the appellant in his cross-examination has admitted that he had received a legal notice from respondent's counsel informing change of ownership of Bungalow in the year 2015. He has further admitted that rent of January, 2016 to March, 2016, he started depositing in the court of Additional Controller of Rents through an application. He has also admitted in cross-examination that after lapse of four months of receipt of the notice regarding change of ownership dated 23.12.2015, he filed an application and deposited the rent in the court.

2025 Y L R 661

[Sindh]

Before Muhammad Saleem Jessar, J

Ismail---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 1426 of 2024, decided on 21th August,2024.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 397 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Robbery or dacoity with attempt to cause death or grievous hurt---Post arrest bail, grant of---Further inquiry---Name of the applicant neither transpired in the FIR nor any description of the accused was given by the complainant---Mere recovery of a cellphone (robbed article) was not sufficient to exempt the prosecution from holding identification parade of the accused---Where names of the culprits are not mentioned in the FIR then holding of identification test becomes necessary as a check against false implication and it is a good piece of evidence against the real culprits---Holding of identification parade cannot be dispensed with, simply because a person accused of committing robbery, has been subsequently found in possession of the robbed property---Complainant party did not sustain any grievous injury or hurt during the robbery and the accused did not use a deadly weapon---There was no evidence of an offensive weapon being recovered from the accused,so the applicability of S.397, P.P.C. was yet to be established by the prosecution---Case was un-witnessed and the Trial Court would have to determine the applicability of S.397, P.P.C after hearing evidence from the prosecution's witnesses, thus, the case of applicant did not fall within ambit of prohibitory caluse of S.497, Cr.P.C---Post arrest bail application was allowed, in circumstances.

Farman Ali v. The State 1997 SCMR 971 ref.

Farman Ali v. The State 1997 SCMR 971 rel.

Ajab Khan Khattak for Applicant.

Nemo for the Complainant.

Shoaib Safdar, A.P.G. Sindh for the State.

Date of hearing: 21th August, 2024.

Order

Muhammad Saleem Jessar, J.---Through this bail application, Applicant Ismail son of Shah Bakhti Rawan seeks his release on post arrest bail in Crime No. 359/2024 of P.S Manghopir under Section 397/34 P.P.C. The applicant had earlier filed post arrest bail application before trial Court, but his request was turned down by orders dated 12.06.2024, hence this application.

1. The facts of the case are already mentioned in the FIR, which is annexed with Court file, therefore, there is no need to reproduce the same.

2. Learned counsel for the Applicant submits that name of the Applicant does not transpire in FIR; even nothing has been shown to have been recovered from his possession and no identification parade was conducted. Learned counsel further submits that applicant was arrested on 05.05.2024; however, challan has been filed by the Investigating Officer on 09.06.2024, even then the case is still pending for preliminary proceedings before IInd Civil Judge and Judicial Magistrate Karachi-West, however, no documentary evidence is available to believe that case is pending before said court. However, per police file the 'accused was remanded to jail custody by the court of IInd Civil Judge and Judicial Magistrate Karachi-West. He contended that Applicant is in custody right from day of his arrest without substantial progress in his trial. He, therefore, submits that the Applicant may be enlarged on bail. To support his contentions, he has relied upon the case of Farman Ali v. The State (1997 SCMR 971).

3. Learned Assistant Prosecutor General, Sindh appearing for the State opposes the bail application on the ground that sufficient material has been collected by the police against Applicant and offence with which he stands charged, carries maximum punishment. He further submitted that applicant is habitual in committing such type of offences as he is involved in other cases of like nature, therefore is not entitled to bail.

4. Heard arguments. Admittedly, the name of the applicant does not transpire in the FIR nor any descriptions of the accused were given by the complainant. Mere recovery of a cellphone, the robbed article, was not sufficient to exempt the prosecution from holding identification parade of the accused. It is settled principle of law that where names of the culprits are not mentioned in the FIR then holding of identification test become necessary as a check against false implication and it is a good piece of evidence against the real culprits. Holding of identification parade cannot be dispensed with, simply because an accused of committing robbery, has been subsequently found in possession of the robbed, property. In case of Farman Ali v. The State (1997 SCMR 971), Hon'ble Supreme Court of Pakistan while dealing with identical issues has laid down in para-7 of the Judgment, as under;_

"7 Holding of identification test becomes necessary in cases, where names of the culprits are not given in the FIR. Holding of such test is a check against false implication and it is a good piece of evidence against the genuine culprits. Holding of identification test cannot be dispensed with, simply because the person accused of committing the robbery, has been subsequently found in possession of the robbed goods. It is not necessary that the eye-witnesses of the robbery should have witnessed the recovery of the robbed property. It was not the prosecution case that the recovery of the robbed truck took place in presence of the complainant and his cleaner and hence identification test of the petitioner through the complainant and Qamar Shahzad was absolutely necessary. The prosecution has not brought sufficient material on record to show that in effecting recovery of truck the investigating police complied with section 103 of Cr.P.C. Such point and many others, have to be looked into at the time of the trial: For the present, the petitioner appears to have made out a case for being released on bail."

2025 Y L R 677

[Sindh]

Before Mohammad Karim Khan Agha, J

Suleman and another---Appellants

Versus

The State---Respondent

Criminal Appeal No. 147 and Criminal Jail Appeal No. 276 of 2021, decided on 3rd October, 2024.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Delay of four days in lodging FIR---Consequential---Accused was charged for committing murder of the husband of complainant by firing during the commission of robbery---Record showed that there was a delay of four days in lodging the FIR by the wife of the deceased---Such delay had not been fully explained especially as son of complainant, who was named in the FIR was with the deceased at the time when he was shot and was in a better position to lodge the FIR immediately, yet he failed to do so for reasons best known to him---Such fact cast some suspicion on the prosecution's case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Ocular account not proved---Identification of assailants during the incident doubtful---Accused was charged for committing murder of the husband of complainant by firing during the commission of robbery---Prosecution's case rested almost exclusively on the evidence of the sole eye-witness to the incident, who was real son of the deceased---Said witness stated that on 19.08.2018 at about 10.30 pm he and the deceased went to purchase cattle food on his motor bike---When they reached near a wedding hall, two robbers came on a motor bike and intercepted them and tried to rob them---On the resistance of father of said witness, one of the accused fired on his father hitting his face who fell to the ground whilst both the robbers escaped---However, it was a night time incident and there was no evidence of there being any light available at the scene of the incident---Eye-witness did not know the appellants before---Eye-witness gave no description of either of the appellants in his S.161 Cr.P.C statement which in any event was given five days after the incident which delay itself was often fatal to the prosecution case---Mother of eye-witness lodged her FIR four days later based on the hearsay evidence of her son but did not state that her son told her that he could recognize the assailants if he saw them again---Incident would have occurred quickly in the heat of the moment and it was unlikely that the eye-witness got a good look at the assailants over such short period of time especially as it was dark and he did not know them before and he most likely would have been in a state of panic---Although the eye-witness identified the appellants before an identification parade held five months after the incident but he had admitted before the identification parade that he could not identify the assailants as it was too dark and he gave no description of them---Appeal against conviction was allowed, in circumstances.

Abdul Ghafoor v. The State 2013 PCr.LJ 1185 and Mst. Robina v. the State 2022 YLR 454 ref.

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

----Ss. 302(b), 397 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Joint identification parade---Infirmities---Accused was charged for committing murder of the husband of complainant by firing during the commission of robbery---Conduct of the identification parade was legally defective as it was a joint identification parade, with only six dummies present all of whom were dissimilar and the appellants were produced from jail at the City Court with un-muffled faces where the police could have pointed them out to the eye-witness prior to the identification parade---No reliance could be placed on such identification parade---Appeal against conviction was allowed, in circumstances.

(d) Criminal trial---

----Medical evidence---Scope---Medical evidence can only reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured---Medical evidence cannot identify the person who inflicted the injuries.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Confession before police---Inadmissible in evidence---Accused was charged for committing murder of the husband of complainant by firing during the commission of robbery---Appellants confessed to the offence whilst in police custody however they were not produced before a Magistrate to record their confessions under S.164, Cr.P.C, despite being produced before a Magistrate for an identification parade---Thus, no reliance could be placed on the appellants' confessions allegedly made before the police---Such fact did not appeal to logic, reason or commonsense that the appellants would confess to such a serious crime as the present one which carried the death penalty whilst in police custody when there was no evidence against them in the case and they were being detained in an illegal arms case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Recovery of weapon of offence and crime empties---Inconsequential---Accused was charged for committing murder of the husband of complainant by firing during the commission of robbery---No empty was recovered at the crime scene as wrongly alleged by the Investigating Officer in his evidence which made the police conduct doubtful and as such no empty could have been tested by the police from a firearm which was recovered in another case four months after the arrest of the appellants---It was proved that any firearm relating to present case was recovered from the appellants---Significantly even the Forensic Science Laboratory Report was negative when the alleged empty recovered at the crime scene was matched with the so-called pistol recovered from the appellants four months later after their arrest in a separate case---Appellants taking the police to the place of wardat (occurrence) was irrelevant as the police already knew where the place of wardat was---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 397 & 34---Qatl-i-amd, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Appreciation of evidence---Robbery, charge of---Applicability---Accused was charged for committing murder of the husband of complainant by firing during the commission of robbery---Complainant filed an affidavit with the first Investigating Officer to withdraw the case which tended to indicate that the appellants might be innocent---No robbed items were recovered from the appellants on their arrest and even the charge in respect of S.397, P.P.C, appeared to be defective as the appellants were not put on notice that they had committed a robbery and what items they had actually robbed---Appeal against conviction was allowed, in circumstances.

Qadir Hussain Khan, Ms. Shehla Anjum and Amanullah Kakar for Appellant (in Criminal Appeal No. 147 of 2021).

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh for the State (in Criminal Appeal No. 147 of 2021).

Muhammad Hanif Noonari for Appellant (in Criminal Jail Appeal No. 276 of 2021).

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh for the State (in Criminal Jail Appeal No. 276 of 2021).

Date of hearing: 25th September, 2024.

Judgment

Mohammad Karim Khan Agha, J.---By this common judgment, I intend to dispose of both the Cr. Appeal and Cr. Jail Appeal filed by Appellants Suleman and Muhammad Shahbaz respectively, who were convicted and sentenced by the Vth Additional Sessions Judge-East/Model Criminal Trial Court (Extension) Karachi vide Judgment dated 02.03.2021 as under:?

For the offence punishable under section 302/34 (b) accused persons Suleman son of Bundo Khan and Muhammad Shahbaz son of Muhammad Meraj to suffer R.I. Imprisonment for life as Tazir (each) and pay Rs.5,00,000/- (Rupees Five Lacs) each as compensation under Section 544-A Cr.P.C. to the legal heirs of deceased Shahid Khan.

For the offence punishable under section 397/34 accused persons Suleman son of Bundo Khan and Muhammad Shahbaz son of Muhammad Meraj to suffer R.I. 7 years (Seven years) each.

Benefit of Section 382-B, Cr.P.C was also extended to the accused persons. Above sentences were ordered to run concurrently.

1. The brief facts of the case as per FIR lodged by complainant Mst. Samina are that on 19.08.2018 her husband Shahid Khan along with his son Sumair, riding on motorcycle went to purchase grass for cow, at about 1030 hours, her son informed the complainant on mobile phone that her husband had received bullet injury caused by unknown culprits. Later on, the complainant came to know that at Ghous Pak Road, opposite Riwaj Marriage Hall, Korangi No.5/1/2 two culprits riding on motorcycle fired upon her husband while commission of robbery, resultantly he received bullet injuries and was shifted to Jinnah Hospital where he succumbed to his injuries. Hence the aforesaid FIR was lodged against the two unknown persons.

2. After completion of investigation I.O. submitted charge sheet against the accused persons to which the appellants plead not guilty and claimed trial.

3. The prosecution in order to prove its case examined 9 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342, Cr.P.C in which they denied all the allegations levelled against them and claimed false implication.

4. After hearing the parties and appreciating the evidence on record the trial court convicted the appellants and sentenced them as stated earlier in this judgment and hence, the appellants have filed these appeals against their convictions and sentences.

5. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment 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 have contended that the appellants are completely innocent and have been falsely implicated in this case by the police in order to show their efficiency which lead to the FIR being lodged with an unexplained delay of 4 days; that the sole eye-witnes's evidence cannot be safely relied upon especially in terms of correctly identifying the appellants as the persons who carried out the robbery and murder and even the appellant's identification parade was legally defective; that no recovery was made from the appellants and that for any or all of the above reasons the appellants should be acquitted of the charge by being extended the benefit of the doubt. In support of their contentions they have placed reliance on the cases of Abdul Ghafoor v. The State (2013 PCr.LJ 1185) and Mst. Robina v. The State (2022 YLR 454).

7. On the other hand learned APG appearing on behalf of the State has fully supported the impugned judgment and contended that the appeal is without merit and should be dismissed. He has relied on the evidence on record and particularly on the evidence of the eye-witness to the robbery and murder.

8. I have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar.

9. At the outset based on the prosecution evidence, especially the medical evidence I find that the prosecution has proved beyond a reasonable doubt that on 19.08.2018 at about 2230 hours Shahid Khan (the deceased) was shot and murdered by firearm. In fact this is an admitted position by learned counsel on behalf of the appellants and as such is not in dispute.

10. The only question left before me therefore is who shot and murdered the deceased at the said time, date and location and whether the deceased was robbed by such person(s)?

11. After my reassessment of the evidence I find that the prosecution has NOT proved beyond a reasonable doubt the charge against the appellants for which they were convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons.

(a) There was a delay of 4 days in lodging the FIR by the wife of the deceased. I find that such delay has not been fully explained especially as her son who is named in the FIR who was with the deceased at the time when he was shot was in a better position to lodge the FIR immediately yet he failed to do so for reasons best known to himself. I find that this castes some suspicion on the prosecutions case but not enough to be fatal to the prosecution case based on the particular facts and circumstances of the case; namely that the FIR was lodged against unknown persons and there was no attempt to falsely implicate anyone however such delay puts me on caution.

(b) I find that the prosecution's case rests almost exclusively on the evidence of the sole eye-witness to the incident and his ability to correctly identify the appellants who allegedly came on a motor bike and attempted to rob his father and then shot dead his father on his resistance whose evidence I shall consider in detail below;

(i) Eye-witness PW 5 Sameer Khan. He is the son of the deceased. According to his evidence on 19.08.2018 at about 10.30pm he and the deceased went to purchase cattle food on his motor bike. When they reached near Rivaj Shadi Hall situate at Ghous park road two robbers came on a motor bike and intercepted them and tried to rob them. On his father's resistance one of the accused fired on his father which fire shot hit his father in the face who fell to the ground whilst both the robbers escaped. He then phoned his mother and called no ambulance and with the help of the people who reached the place of the incident he took his father by ambulance to JPMC where his father was pronounced dead. He further stated in his evidence that he can identify the accused persons whenever shown to him.

It was a night time incident and there is no evidence of their being any light available at the scene of the incident. The eye-witness did not know the appellants from before. He gave no hulia of either of the appellants in his S.161 Cr.P.C statement which in any event was given 5 days after the incident which delay itself is often fatal to the prosecution case. His mother when she lodged her FIR 4 days later based on the hearsay evidence of her son does not state that her son told her that he could recognize the assailants if he saw them again. The incident would have occurred quickly in the heat of the moment and it is unlikely that the eye-witness got a good look at the assailants over this short period of time especially as it was dark and he did not know them from before and he most likely would have been in a state of panic. .

In cross-examination the eye-witness states as under regarding the identification of the assailants;

"It is correct that I narrated the entire facts which happened with me and my father to police officer who was recording my statement under section 161 Cr.P.C. on 29.08.2018. It is correct that as per the contents of mashirnama of site inspection it is mentioned that I could not see the accused persons at the time of incident." (bold added)

Furthermore, PW 2 Yousif Ali who the eye-witness took to the crime scene states as under during cross-examination;

"It is correct that on pointation of the son of deceased I visited the place of incident and drawn such pictures. It is correct that the son of deceased is mashir of memo. of site inspection Ex.4/ B. It is correct that it is mentioned in the mashirnama that due to darkness mashir who was son of deceased could not identify the accused and also states same facts in statement under section 161 Cr.P.C. (bold added)

It is therefore apparent that the eye-witesses was not in a position to correctly identify the assailants even if a later identification parade was held especially as he did not even give any hulia of the assailants which appears now to be because he did not see them due to the darkness of night.

In this respect reliance is placed on the case of Javed Khan v. State (2017 SCMR 524) concerning the necessity for an early hulia/ description of an accused by an eye-witness in his S.161 Cr.P.C statement before an identification parade and the need to strictly follow the rules governing identification parades where it was held as under at P.528 to 530:

"7. We have heard the learned counsel and gone through the record. The prosecution case rests on the positive identification proceedings and the Forensic Science Laboratory report which states that the bullet casing sent to it (which was stated to have been picked up from the crime scene) was fired from the same pistol (which was recovered from Races Khan in another case). We therefore proceed to consider both these aspects of the case. As regards the identification proceedings and their context there is a long line of precedents stating that identification proceedings must be carefully conducted. In Ramzan v. Emperor (AIR 1929 Sindh 149) Perceval, JC, writing for the Judicial Commissioner's Court (the precursor of the High Court of Sindh) held that, "The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases" (page 149, column 2). In Alim v. State (PLD 1967 SC 307) Cornelius CJ, who had delivered the judgment of this Court, with regard to the matter of identification parades held, that, "Their [witnesses] opportunities for observation of the culprit were extremely limited. They had never seen him before. They had picked out the assailant at the identification parades, but there is a clear possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier" (page 313E). In Lal Pasand v. State (PLD 1981 SC 142) Dorab Patel J, who had delivered the judgment of this Court, held that, if a witness had not given a description of the assailant in his statement to the Police and identification took place four or five months after the murder it would, "react against the entire prosecution case" (page 145C). In a more recent judgment of this Court, Imran Ashraf v. State (2001 SCMR 424), which was authored by Iftikhar Muhammad Chaudhry J, this Court held that, it must be ensured that the identifying witnesses must "not see the accused after the commission of the crime till the identification parade is held immediately after the arrest of the accused persons as early as possible" (page 485P).

1. The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect....

2. As regards the identification of the appellants before the trial court by Nasir Mehboob (PW-5), Subedar Mehmood Ahmed Khan (PW-6) and Idress Muhammad (PW-7) that too will not assist the Prosecution because these witnesses had a number of opportunities to see them before their statements were recorded. In State v. Farman (PLD 1985 SC 1), the majority judgment of which was authored by Ajmal Minn J, the learned judge had held that an identification parade was necessary when the witness only had a fleeting glimpse of an accused who was a stranger as compared to an accused who the witness had previously met a number of times (page 25V). The same principle was followed in the unanimous judgment of this Court, delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad v. State (7998 SCMR 752), in which case the abductee had remained with the abductors for some time and on several occasions had seen their faces. In the present type of case the culprits were required to be identified through proper identification proceedings, however, the manner in which the identification proceedings were conducted raise serious doubts (as noted above) on the credibility of the process. The identification of the appellants in court by eye-witnesses who had seen the culprits fleetingly once would be inconsequential." (bold added)

The Supreme Court case of Mian Sohail Ahmed v. State (2019 SCMR 956) has also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accused is correctly identified.

Thus, although the eye-witness identified the appellants before an identification parade held 5 months after the incident since he has admitted before the identification parade that he could not identify the assailants as it was too dark and he gave no hulia of the them I find that I cannot safely rely on his identification of the appellants as the persons who allegedly robbed and murdered his father. Even the conduct of the identification parade was legally defective as it was a joint identification parade, with only 6 dummies present all of whom were dissimilar and the appellants were produced from jail at the city court with unmuffled faces where the police could have pointed them out to the eye-witness prior to the identification parade.

Thus, although I place reliance on the evidence of the eye-witness in terms of the actual incident I place no reliance on his identification of the appellants who committed the offence.

(c) With no eye-witness evidence to the identity who carried out the attack the medical evidence becomes inconsequential as it can only reveal what kind of weapon/device was used and the seat of the injuries of the dead and injured. It cannot identify the person who inflicted the injuries.

(d) It is notable that the appellants confessed to the offence whilst in police custody however they were not produced before a magistrate to record their confessions under S.164 Cr.P.C despite being produced before a magistrate for an identification parade and thus I place no reliance on the appellants confessions allegedly made before the police.

(e) It does not appeal to logic, reason or commonsense that the appellants would confess to such a serious crime as the present one which carried the death penalty whilst in police custody when there was no evidence against them in that case and they were being detained in an Arms case which carried a much lesser sentence.

(f) No empty was recovered at the crime scene as wrongly alleged by the IO in his evidence which makes the police conduct doubtful and as such no empty could have been tested by the police from a firearm which was recovered in another case 4 months after the arrest of the appellants. It has not been proven that any firearm relating to this case was recovered from the appellants. Significantly even the FSL report was negative when the alleged empty recovered at the crime scene was matched with the so called pistol recovered from the appellants 4 months later on after their arrest in a separate case.

2025 Y L R 688

[Sindh]

Before Irshad Ali Shah, J

Muhammad Zubair---Appellant

Versus

The State---Respondent

Criminal Appeal No. 510 of 2019, decided on 30th August, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account proved---Accused was charged that he along with his co-accused in furtherance of common intention committed murder of brother and maternal uncle of the complainant by causing to them fire shot injuries---Complainant stated that on 01.02.1995 after leaving his house he reached adjacent to a Bakery, and there at about 10:00 p.m. he had seenco-accused persons having a fight with his brother and maternal uncle, who were employees in Police Department---In the meanwhile the appellant reached the spot from a hair cutting saloon with a pistol in his hand and fired at his brother, who by sustaining such fires fell down on ground---In the meanwhile co-accused came from the side of Hair cutting Saloon with a pistol in his hand and he fired at his maternal uncle, who by sustaining those fires fell down on the ground---All the accused then ran away before the police party arrived---Maternal uncle of complainant died at the spot while his brother died on his way to hospital---On 02.02.1995, complainant lodged report of the incident with police---Whatever was stated by the complainant got support from the evidence of witnesses---Said witnesses had stood by their version on all material points despite lengthy cross-examination---Said witnesses could not be disbelieved only for the reason that they were related inter-se---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of five months in recording the statement of witness, plausibly explained---Accused was charged that he along with his co-accused in furtherance of common intention committed murder of brother and maternal uncle of the complainant by causing to them fire shot injuries---No doubt, S.161, Cr.P.C statement of witness had been recorded with delay of about 05 months, but plausible explanation for such delay was offered by him by saying that soon after incident he proceeded to his native village, for which a ticket was already booked by him---Other witness besides being mashir had also supported the factum of incident and his evidence had gone un-rebutted---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non-examining of material witnesses, due to their retirement---Inconsequential---Accused was charged that he along with his co-accused in furtherance of common intention committed murder of brother and maternal uncle of the complainant by causing to them fire shot injuries---Record showed that the Medical Officer and the Investigating Officer of the present case had not been examined by the prosecution against the appellant for the reason that they were found untraceable after their retirement---If the appellant would have surrendered timely then they would have been examined against the appellant by the prosecution---In such situation, the appellant could not claim benefit of their non-examination---Instead of them, the prosecution had been able to examine a Medical Officer who identified the signatures of Medical Officer on postmortem reports and other documents, and an Inspector who identified the signatures of Investigating Officer on every document prepared by him in the case---By such act, the prosecution had obviously attempted to discharge its liability---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Non-recovery of weapon of offence and crime empty---Inconsequential due to lengthy absconsion---Accused was charged that he along with his co-accused in furtherance of common intention committed murder of brother and maternal uncle of the complainant by causing to them fire shot injuries---No empty was secured from the place of incident but such fact was not enough to conclude that the appellant was innocent---Appellant by remaining an absconder for about 24 years had defeated the recovery of crime weapon from him, thus he, as such could not get benefit of his wrong doing---Appeal against conviction was dismissed, in circumstances.

Bashir Ahmed Leghari v. The State 2020 SCMR 595 rel.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Co-accused acquitted on same set of evidence---Effect---Accused was charged that he along with his co-accused in furtherance of common intention committed murder of brother and maternal uncle of the complainant by causing to them fire shot injuries---Co-accused persons were assigned no active role in commission of incident, which is why they were acquitted by Trial Court one after another, in earlier round of litigation---Appellant could not claim benefit of acquitted co-accused as his case was distinguishable to that of acquitted co-accused---Appellant obviously had been attributed the role of committing death of a deceased by causing him fire shot injuries---Appellant had also been absolved of the liability of committing murder of other deceased even by Trial Court by making a conclusion that the prosecution had not been able to establish common intention on his part---Evidence brought on record by the prosecution inspired confidence and it could not be disbelieved on the basis of its quantity---Appeal against conviction was dismissed, in circumstances.

Sikandar Ali v. The State 2023 YLR 427 ref.

Muhammad Raheel alias Shafique v. State PLD 2015 SC 145 rel.

(f) Criminal trial---

----Testimony of witnesses---Scope---Prosecution evidence is tested on the basis of quality of the evidence which prevails and not the quantity.

Asfandiyar v. The State and others 2021 SCMR 2009 rel.

Muhammad Riaz for Appellant.

Muhammad Anwar Mahar, DDPP for the State.

Date of hearing: 30th August, 2023.

Judgment

Irshad Ali Shah, J.---It is the case of prosecution that the appellant with rest of the culprits, in furtherance of their common intention, committed murder of Doulat Shah and Syed Iqbal by causing them fire shot injuries, for that the present case was registered. On arrest, the appellant was challaned accordingly by the police; he denied the charge and prosecution to prove the same examined in all five witnesses including complainant Syed Akbar Ali Shah and then closed its side. The appellant in his statement recorded under Section 342, Cr.P.C denied the prosecution's allegation by pleading innocence by stating that at the time of incident he was away from place of incident with DWs Bashir Ahmed and Nawab Gul. In order to prove his innocence, he examined himself on oath and above-named DWs. On conclusion of trial, he was found guilty for committing murder of Doulat Shah only; consequently convicted under Section 302(b), P.P.C. and sentenced to undergo life imprisonment as Tazir and to pay compensation of rupees one million to the legal heirs of deceased Doulat Shah and in default whereof to undergo simple imprisonment for six months, with benefit of section 382(b), Cr.P.C by learned 1st Additional Sessions Judge, (MCTC) Karachi, West vide judgment dated 23.07.2019, which he has impugned before this Court by preferring the instant Criminal Appeal.

1. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party; FIR is lodged with delay of about 04 hours; there is no recovery from the appellant or from the place of incident; co-accused Naveed alias Noni and Kareem have already been acquitted in very case by learned trial Court on after other; the Medical Officer and the Investigating Officer of the case have not been examined by the prosecution and evidence of the PWs being doubtful in its character has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt. In support of his contentions, he relied upon case Sikandar Ali v. The State (2023 YLR 427).

2. It is contended by learned DDPP for the State that the appellant is neither innocent nor is involved in this case falsely by the complainant party; his case is distinguishable to that of acquitted accused Naveed alias Noni and Kareem; the appellant has preferred to go in absconsion for about 24 years by such act he defeated the recovery of crime weapon from him; the Medical Officer and the Investigating Officer of the case being untraceable after retirement could not be examined by the prosecution on account of absconsion of the appellant. By contending so, he sought for dismissal of the instant Criminal Appeal.

3. Heard arguments and perused the record.

4. It is stated by the complainant that on 01.02.1995 after leaving his house when reached adjacent to Insaaf Bakery at Alamgir Road, there at about 10:00 p.m. time, he saw accused Kareem and Naveed alias Noni having a fight with his brother Doulat Shah and maternal uncle Syed Iqbal, who were employees in Police Department; in the meanwhile there came the appellant from a Hair Cutting Saloon with pistol in his hand and fired at Doulat Shah; who by sustaining such fires fell down on ground; in the meanwhile there came accused Abdul Rahman alias Lakarhara from the side of Hair Cutting Saloon with a pistol in his hand and he fired at Syed Iqbal, who by sustaining those fires fell down on ground. All the accused then ran away. There came police party. Syed Iqbal died at the spot while Doulat Shah died on his way to hospital. On 02.02.1995, he lodged report of the incident with police. Whatever is stated by the complainant takes support from the evidence of PW Muhammad Sher Ali Shah. They have stood by their version on all material points despite lengthy cross-examination. They could not be disbelieved only for the reason that they are related inter-se. The delay of lodgment of FIR by 04 hours being natural in the circumstances could hardly be treated fatal to the case of prosecution. No doubt, 161 Cr.P.C statement of PW Muhammad Sher Ali Shah has been recorded with delay of about 05 months, but plausible explanation to such delay is offered by him by saying that soon after incident he proceeded to his native village at Swat, for which a ticket was already booked by him. PW Adalat Shah besides being mashir has also supported the factum of incident and his evidence has gone un-rebutted. Of course, the Medical Officer and the Investigating Officer of the present case have not been examined by the prosecution against the appellant for the reason that they were found untraceable after their retirement. If the appellant would have surrendered timely then they would have been examined against the appellant by the prosecoution. In such situation, the appellant could not claim benefit of their non-examination. Instead of them, the prosecution has been able to examine Dr. Qamar Ahmed Abbasi who identified the signatures of Dr. Shahid Shaikh on postmortem reports and other documents and Inspector Najam Din Siddiqui who identified the signatures of I.O/SIP Fazal Mehmood on every docurhent prepared by him in present case. By such act, the prosecution has obviously attempted to discharge its liability. No empty was secured from the place of incident but such fact is not enough to conclude that the appellant is innocent. The appellant by remaining in absconsion for abqut 24 years has defeated the recovery of crime weapon from him. He, as such could not get benefit of his wrong doing. Co-accused Nadeem alias Noni and Kareem were assigned no active role in commission of incident, it is why they were acquitted by learned trial Court one after other, in earlier round of litigation. The appellant could not claim benefit of their acquittal. His case is distinguishable to that of acquitted accused. He obviously has been attributed the role of committing death of deceased Doulat Shah by causing him fire shot injuries. He has also been absolved of the liability of committing murder of Syed Iqbal even by learned trial Court by making a conclusion that the prosecution has not been able to establish common intention on his part. Evidence brought on record by the prosecution is transpiring confidence. It could not be disbelieved on the basis of its quantity. It is settled by now that it is the quality of the evidence which prevails and not the quantity. The appellant in his statement recorded under Section 342, Cr.P.C has pleaded innocence and to prove such innocence has also examined himself on oath and his witnesses in defence. Such plea on his part deserved to be ignored as an afterthought. In these circumstances, it would be safe to conclude that no illegality or irregularity has been committed by learned trial Court by convicting the appellant.

5. In case of Muhammad Raheel alias Shafique v. State (PLD 2015 SC 145), it has been held by Apex Court that:

"5. Thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution's case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in uno falsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant".

1. In case of Asfandiyar v. The State and others (2021 SCMR 2009), Apex Court has held that:

2025 Y L R 697

[Sindh]

Before Irshad Ali Shah, J

Qasim and another---Appellants

Versus

The State---Respondent

Criminal Appeal No. 692 of 2019, decided on 9th October, 2023.

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

----Ss. 302(b), 334, 147, 148 & 149---Qatl-i-amd, itlaf-i-udw, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Ocular account not proved---Accused were charged for committing murder of brother of complainant and causing injuries to his other brother and a relative---Complainant stated that co-accused made straight fire at his brother, which hit on his head---As per Medical Certificate deceased was found to have sustained single entry and exit wound on his temporal region and same was attributed by the complainant to co-accused, who had been acquitted by Trial Court---Complainant further stated that co-accused also made straight fire at relative of complainant, which hit on his abdomen, chest and other parts of the body, and that appellant made straight fire at brother of complainant---However, there was nothing in his evidence, which may suggest that the fire made by appellant hit the deceased---If it did hit him, then question was on which part of his body?---Complainant further stated that other appellant then caused hatchet below to injured brother of complainant with intention to commit his murder which hit on his right hand, resultantly his hand was cut and it was found connected with his skin; that co-accused then caused hatchet below to injured brother of complainant which hit him on his left thumb, resultantly it was cut down; and he also received a head injury---Injured brother of complainant stated that on the date of incident, co-accused made fire which hit the deceased and relative of complainant, and that appellant made fire with pistol which hit the deceased---Question as to which part of body; deceased sustained such injury, was not disclosed by him in his examination-in-chief---Said witness further stated that other appellant then caused hatchet below to him, which he sustained on his right hand, resultantly, it was amputated, that thereafter, co-accused caused hatchet below to him, which hit on his left index finger---However, as per Medical Officer, it was on left thumb of the injured---One of the witnesses stated that he sustained pellet injuries on his arm, backside of abdomen and shoulder---However this was contrary to the complainant who stated that the injuries were sustained by said injured on his abdomen, chest and other parts of his body---Ocular account was found to be inconsistent and doubtful---Appeal against conviction was allowed, in circumstances.

Notice to Police Constable Khizer Hayat son of Hadait Ullah on account of his false statement PLD 2019 SC 527; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; S.A.K Rehmani v. The State 2005 SCMR 364; Amjad and another v. The State and another 2020 SCMR 2084; Muhammad Rafique and others v. The State and others 2010 SCMR 385; Muhammad Imran v. The State 2020 SCMR 857; Muhammad Bashir and another v. The State and others 2023 SCMR 190; Sheeraz Khan v. The State 2010 SCMR 1772 and Anwar Shamim and another v. The State 2010 SCMR 1791 ref.

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

----Ss. 302(b), 334, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, itlaf-i-udw, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Independent witnesses given up by prosecution---Effect---Accused were charged for committing murder of brother of complainant and causing injuries to his other brother and a relative---Record showed that two witnesses who appeared to be independent witnesses to the incident had been given up by the prosecution---Thus, inference, which could be drawn of their non-examination in terms of Art.129(g) of Qanun-e-Shahadat Order, 1984, would be that they were not going to support the case of prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 334, 147, 148 & 149---Qatl-i-amd, itlaf-i-udw, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence and crime empties---Inconsequential---Accused were charged for committing murder of brother of complainant and causing injuries to his other brother and a relative---As per Investigating Officer, appellants led to recovery of hatchet, pistol and DBBL gun, which he sent for forensic report---However, said weapons were sent together with the empties secured from the place of incident, when they ought to have been sent separately to maintain transparency---Recovery of the pistol from appellant was from a jungle, and it was not in his exclusive possession---Recovery of the hatchet had been made from the other appellant on 3rd day of his arrest; such delay could not be lost sight of---Even otherwise, it was unsafe to maintain conviction on the basis of corroboratory evidence when ocular evidence was found to be inconsistent and doubtful---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 334, 147, 148 & 149---Qatl-i-amd, itlaf-i-udw, rioting, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Co-accused acquitted on the basis of same evidence---Accused were charged for committing murder of brother of complainant and causing injuries to his other brother and a relative---On the basis of same evidence, co-accused persons had been acquitted by Trial Court---In such circumstances, it would be safe to conclude that the prosecution had not been able to prove its case against the appellants beyond shadow of doubt---Appeal against conviction was allowed, in circumstances.

Mehmood Ahmed and others v. The State and another 1995 SCMR 127; Sardar Bibi and others v. Munir Ahmed and others 2017 SCMR 344; Asad Rehmat v. The State and others 2019 SCMR 1156; Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Mohammad Ashraf Kazi, Irshad Ahmed Jatoi and Imtiaz Ali Jatoi for Appellants.

Muhammad Anwar Mahar, DDPP for the State.

Shabir Ahmed Kumbhar and Mohammad Nawaz Tahiri for the Complainant.

Date of hearing: 3rd October, 2023.

Judgment

Irshad Ali Shah, J.---It is the case of prosecution that the appellants with rest of the culprits after having formed an unlawful assembly and in prosecution of its common object not only committed murder of Sharif but caused fire shot injuries to PW Noor Hassan and hatchet injuries to P.W Akram with intention to commit their murder; by such injuries, PW Akram lost his right hand and index finger of left hand, for that the present case was registered. The appellants, co-accused Juman and Zulfiqar were charged for the said offence, which they denied and the prosecution to prove the same, examined in all 08 witnesses and then closed its side. The appellants and above named co-accused in their statements recorded under section 342 Cr.P.C denied the prosecution's allegation by pleading innocence; they did not examine anyone in their defence or themselves on oath. On conclusion of trial, co-accused Juman and Zulfiqar were acquitted, while the appellants were convicted and sentenced by learned I-Additional Sessions Judge/MCTC, Thatta vide judgment dated 30.09.2019 in following terms:

"18. In view of the foregoing discussion, I am of the opinion that offences under sections 302 and 334, P.P.C. are established against accused Iqbal Dall and Qassim Dall for causing death of deceased Muhammad Sharif son of Ibrahim Dall and causing injuries to injured Akram son of Ibrahim Dall. As for as injured Noor Hassan Dall is concerned, he allegedly received firearm injuries and pellet injuries but since both accused Zulfiqar Dall and Muhammad Juman Dall has been extended benefit of doubt and acquitted, I am not inclined to convict accused Qasim Dall and Iqbal Dall for injuries caused to injured Noor Hassan. Deceased Sharif Dall received firearm injury and the Medico Legal Officer has noted such injury and thus the medical evidence supported the ocular version. Such fire shot has been attributed to accused Qassim Dall. Moreover, accused Iqbal Dall has been attributed the role of causing hatchet blow to injured Akram Dall, who got his hand amputated at right wrist joint and such hurt was declared by the medical Officer as Itlaf-e-Udw punishable under section 334, P.P.C. Since both of the deceased was caused and injuries to injured Akram Dall and Qassim Dall, they are liable for all such offences under section 34, P.P.C. I, therefore, convict both accused Qassim Dall and Iqbal Dall under section 302(b), P.P.C. as Tazir and, sentence them to undergo imprisonment for life. They are also required to pay Rs.1,00,000/- each as compensation payable to the legal heirs of the deceased Sharif Dall. Such compensation shall be recoverable as arrears of land revenue. However, in case of default in payment of such compensation or its non-recovery, the convict shall undergo simple imprisonment for six months. I also convict them under section 334, P.P.C. for Itlaf-e-Udw as defined under section 333, P.P.C. and sentence them to pay half of Diyat to the injured. They shall also be liable to pay compensation to injured Muhammad Akram son of Ibrahim Dall to the tune of Rs.50,000/- each and in case of default in payment of such compensation or its non-recovery, the convict shall undergo simple imprisonment for three months. Both the convicts are extended benefit of Section 382-B, Cr.P.C."

1. It was in these circumstances the appellants have preferred instant criminal appeal before this Court challenging the conviction and sentences awarded to them by learned trial Court.

2. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the complainant party in order to satisfy its dispute with them over landed property; FIR of the incident has been lodged with delay of about one day which reflects consultation and deliberation; on the basis of same evidence co-accused Juman and Zulfiqar have already been acquitted by learned trial Court, therefore, the appellants are also entitled to their acquittal by extending them benefit of doubt, who as per them inclusive of remission have already undergone round about 18 years of the sentence. In support of their contentions, they relied upon cases of (i) Notice to Police Constable Khizer Hayat son of Hadait Ullah on account of his false statement (PLD 2019 SC 527), (ii) Ghulam Sikandar and another v. Mamaraz Khan and others (PLD 1985 SC 11), (iii) S.A.K Rehmani v. The State (2005 SCMR 364), (iv) Amjad and another v. The State and another (2020 SCMR 2084), (v) Muhammad Rafique and others v. The State and others (2010 SCMR 385) and (vi) Muhammad Imran v. The State (2020 SCMR 857).

3. It is contended by learned DDPP for the State and learned counsel for the complainant that the appellants are neither innocent nor have been involved in this case falsely by the complainant party; the delay in lodgment of the FIR is well explained; there was counter version of the incident which suggests involvement of the appellants in commission of the present incident and acquittal of co-accused Juman and Zulfiqar has been impugned by the complainant before this Court by preferring an acquittal appeal. By contending so, they sought for dismissal of the instant criminal appeal. In support of their contentions, they relied upon cases of (i) Muhammad Bashir and another v. The State and others (2023 SCMR 190), (ii) Sheeraz Khan v. The State (2010 SCMR 1772) and (iii) Anwar Shamim and another v. The State (2010 SCMR 1791).

4. In response to above, it is stated by learned counsel for the appellants that the acquittal appeal has already been dismissed by this Court for non-prosecution.

5. Heard arguments and perused the record.

6. It was stated by complainant Munir that on 12.07.2015, he, his brothers Sharif, Akram and relative Noor Hassan left their houses for work at their land; he was working in the land while Sharif, Akram and Noor Hassan were sitting on Mori. P.Ws Bashir, Ghulam and Usman were also doing work in their land, in the meanwhile at about 7:00 am time, he heard commotions and found accused Juman with DBBL gun, accused Qasim with Pistol, accused Iqbal and Allah Dino with hatchets and accused Zulfiqar with repeater gun, they all were abusing his brothers; later on accused Juman made straight fire at his brother Sharif, which hit on his head. As per Medical Certificate produced by Dr. Muhammad Amin, deceased Sharif was found sustaining single entry and exit wound on his temporal region, same is attributed by the complainant to accused Juman, who has already been acquitted by learned trial Court. It was further stated by the complainant that accused Juman also made straight fire at Noor Hassan, which hit on his abdomen, chest and other parts of the body; accused Qasim made straight fire at his brother Sharif. There is nothing in his evidence, which may suggest that the fire made by appellant Qasim hit to Sharif. If hit to him, then on which part of his body it hit. It was further stated by the complainant that accused Iqbal then caused hatchet blow to Akram with intention to commit his murder which hit on his right hand resultantly his hand was cut down and it was found connected with skin. Accused Allah Dino then caused hatchet below to PW Akram which hit him on his left thumb, resultantly it was cut down; he also received head injury. Accused Zulfiqar made fires with his repeater gun. It was further stated by the complainant that he, P.Ws Usman, Ghulam and Bashir rushed to the place of incident and begged to the accused to leave his brothers, they then went away and he then took his brothers Sharif, Akram and P.W Noor Hassan to Rural Health Centre Jhirk; his brother Sharif died in his way to hospital; the police arrived at Rural Health Centre Jhirk; the injured and the deceased then were referred to Civil Hospital Thatta. The dead body of the deceased after postmortem was given to them for burial purpose, while, injured were referred to Civil Hospital Hyderabad for further management of their injuries. On 13.07.2015, he lodged report of the incident at PS Jhirk. It was stated by P.W Akram that on the date of incident, he, the complainant, deceased Sharif and P.W Noor Hassan left their houses for their work at their land, he, Sharif and P.W Noor Hassan were sitting on Mori, while the complainant was working at the land, there at about 7:00 a.m. time, came accused Juman with DBBL gun, accused Qasim with pistol, accused Iqbal with hatchet, accused Allah Dino with hatchet and accuse Zulfiqar with Repeater Gun; they started to abuse them, thereafter, accused Juman made fire which hit to Sharif and P.W Noor Hassan; accused Qasim made fire with pistol which hit to Sharif. On which part of body, Sharif sustained such injury? It is not disclosed by him in his examination-in-chief. It was further stated by him that accused Iqbal then caused hatchet blow to him, which he sustained on his right hand, resultantly, it was amputated. Thereafter, accused Allah Dino caused hatchet blow to him, which hit on his left index finger. As per Medial Officer Dr. Muhammad Amin, it was on left thumb of the injured. It was further stated by P.W Akram that the complainant then arranged for the vehicle, took him, Sharif and P.W Noor Hassan to R.H.C Jhirk; Sharif died on his way to Hospital. He and P.W Noor Hassan were provided medical aid at R.H.C Jhirk and then were referred to Civil Hospital Hyderabad for further management. On asking, he stated that his 161, Cr.P.C statement was recorded on 17.07.2015. By stating so, he voluntarily stated it was got recorded to police by his brother. If it was so, then it was strange. It was stated by P.W Noor Hassan that on the date of incident, he went to the complainant at his house and therefrom, he, the complainant, his brothers Sharif and Akram went at their land for work; the complainant was working in the field, while he, Sharif and P.W Akram were sitting on Mori, there at about 7:00 a.m. time, came accused Juman with DBBL gun, accused Qasim with pistol, accused Iqbal with hatchet, accused Allah Dino with hatchet, accused Zulfiqar with repeater gun and abused us. Thereafter, accused Juman made fire, which hit to Sharif on his temporal region. It was the only injury with entry and exit, which Sharif was found sustaining on his medical examination; same is attributed by P.W Noor Hassan to accused Juman, who as said above has already been acquitted by learned trial Court. It was further stated by him that he sustained pellet injuries on his arm and backside of the abdomen and shoulder. It is contrary to the complainant who stated that the injuries were sustained by PW Noor Hassan on his abdomen, chest and other parts of his body. On asking, it was stated by him that he was hari of the complainant over the disputed land for five years. He in that respect was belied by P.W Akram by stating that the disputed land prior to the incident was under cultivation of accused Juman. It was stated by P.W Usman that on the date of incident, he, Bashir, Ghulam and Munir were working at the land while Sharif, Akram and Noor Hassan were sitting on Mori there at about 07:00 a.m. time there came accused Juman with DBBL gun, accused Qasim with pistol, accused Iqbal and Allah Dino with hatchets while accused Zulfiqar with repeater gun, accused Juman and Qasim abused Sharif, P.Ws Akram and Noor Hassan; they made straight fires which hit to Sharif and P.W Noor Hassan; both of them after sustaining injuries fell down. On which part of the body, Sharif and P.W Noor Hassan sustained such injuries? His evidence is silent. It was further stated by him that accused Iqbal then caused hatchet blow to PW Akram resultantly his right hand was amputated; accused Allah Dino caused hatchet blow to PW Akram, it hit to him on his head cutting his left thumb. Evidence of PW Akram is silent with regard to sustaining any injury on his head. It was further stated by him that accused Zulfiqar then made aerial firing and all the accused then went away. P.Ws Ghulam and Bashir who are appearing to be independent witnesses to the incident have been given up by the prosecution. The inference, which could be drawn of their non-examination in terms of Article 129(g) of Qanun-e-Shahadat Order, 1984 would be that they were not going to support the case of prosecution. There might be a counter version of the incident but it is not suggested in FIR of the present case or even by the complainant and his witnesses so far their examination-in-chief is concerned. By awarding no punishment to the appellants under Sections 324 and 504 P.P.C., they impliedly have been acquitted for such allegation even by learned trial Court. Injury to P.W Akram on his left index finger or thumb is attributed to accused Allah Dino, who is still absconding. It was stated by I.O/SIP Muhammad Hassan that on investigation, he apprehended Qasim, Iqbal and one more culprit and they on interrogation admitted before him to have committed the present incident. If for the sake of arguments, it is believed that such admission was actually made by them before the said I.O/SIP, even then same in terms of Article 39 of the Qanun-e-Shahadat Order 1984 could not be used against them as evidence. It was further stated by the said I.O/ SIP that accused Iqbal, Qasim and Juman then led to recovery of hatchet, pistol and DBBL gun, which he sent for forensic report. Those were sent together with the enApties secured from the place of incident; those ought to have been sent separately to maintain transparency. Recovery of the pistol from appellant Qasim was from jungle, it was not in his exclusive possession. The recovery of the hatchet has been made from appellant Iqbal on 3rd day of his arrest; such delay could not be lost sight of. Even otherwise, it would be unsafe to maintain conviction on the basis of corroboratory evidence when ocular evidence is found to be inconsistent and doubtful. The appellants have also been convicted and sentenced under Section 334, P.P.C. for such offence they were never charged. Perhaps, in that context, it was contended by the learned counsel for the appellants that they in terms of Section 225, Cr.P.C have been misled in their defence which has occasioned in failure of justice and is contrary to the mandate contained by Article 10-A of the Constitution of Islamic Republic of Pakistan 1973, which prescribes right of fair trial. If the prosecution/complainant party was intending to take benefit of counter version of the incident, if any, then such fact ought to have been proved by them in the present case by producing such evidence. Evidence recorded in some other case cannot be used in present case to maintain conviction against the appellan. On the basis of same evidence, co-accused Juman and Zulfiqar have already been acquitted by learned trial court. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt.

7. In case of Mehmood Ahmed and others v. The State and another (1995 SCMR 127), it was observed by the Hon'ble Court 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".

1. In case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344), it has been held by the Apex Court that;

"When the eye-witnesses produced by the prosecution were disbelieved to the extent of one accused person attributed effective role, then the said eye-witnesses could not be relied upon for the purpose of convicting another accused person attributed a similar role without availability of independent corroboration to the extent of such other accused". .

1. In the case of Asad Rehmat v. The State and others (2019 SCMR 1156), it has been held by the Apex Court that;

"Though the casings tallied with the gun, however, these were dispatched on a date subsequent to appellant's arrest and thus this piece of evidence also lost its significance."

1. In case of Muhammad Jamil v. Muhammad Akram and others (2009 SCMR 120), it has been observed by the Apex Court that;

"When the direct evidence is disbelieved, then it would not be safe to base conviction on corroborative or confirmatory evidence."

1. In the case of Muhammad Mansha v. The State (2018 SCMR 772), it has been held by the Apex court that;

2025 Y L R 707

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio, J

Tario alias Tara Chand---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-02 of 2024, decided on 15th February, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 324, 334, 114 & 34---Attempt to commit qatl-i-amd, Itlaf-i-udw, abettor present at the time of offence, common intention---Bail, refusal of---Petitioner was charged for inflicting hatchet blow on the left arm of victim, resulting in the amputation of his left hand---In the instant case, applicant was specifically nominated in the FIR with a defined role in causing a direct hatchet blow to the left arm of victim, resulting in the amputation of his hand at the wrist---Eye-witness had fully implicated the applicant in the commission of the offence in their statements recorded under S.161, Cr.P.C., alleging that the applicant caused the said injury---Upon examination, the Medical Officer, with the assistance of Radiological Expert opinion from the Additional Medical Superintendent, diagnosed the injury as "traumatic amputation at level of left upper limb between elbow and Wrist", classifying it as "itlaf-i-udw" falling under S.334, P.P.C.---Said offence carried a sentence of up to 10 years as ta'zir---No contradiction was found between the ocular version given in FIR, and the medical evidence---Presence of eye-witnesses at the time of the incident had been duly established and justified and there was no reason to doubt the credibility of their statements---Although the court granted post-arrest bail to other named accused but the role of the petitioner/applicant differed significantly from that of the co-accused and was not similar---Therefore, the principle of consistency did not apply to the applicant's case---Allegedly, there was delay of 27 days in lodging the FIR, however a plausible explanation for the delay was available on record---Prosecution did not gain any undue advantage from the delay---Significance of the delay in lodging the report arose only when there was doubt regarding the identity of the culprit---Upon a preliminary assessment of the evidence on record, it appeared that there was a prima facie connection between the applicant/ accused and the allegations levelled against him in the case in hand---Bail petition was dismissed, in circumstances.

Muhammad Rizwan v. Gulfam and another 2009 PCr.LJ 73 and Muhammad Luqman and another v. The State 2014 SCMR 12 ref.

2009 PCr.LJ 73; 2014 SCMR 12; Bakhti Rahman v. The State 2023 SCMR 1068 and Wazir Ali v. The State 2023 YLR 1582 rel.

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

----S. 497---Bail---Tentative assessment---Scope---Observations bail orders are tentative and are not intended to exert any influence on the Court's deliberations regarding in the merits of the case against accused.

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

Hussain Bux Mari for Applicant.

Dhani Bakhsh Mari, A.P.G., for the State.

Wishan Das Kolhi for the Complainant.

Date of hearing: 15th February, 2024.

Order

Amjad Ali Bohio, J.---After failing to secure the concession of post-arrest bail from the Court of the learned Additional Sessions Judge, Khipro in Crl. Bail Application No. 138/2023, as per order dated 09.12.2023, the applicant now seeks the same concession from this court in Crime/FIR No. 44/2023, registered at PS Khahi under sections 324, 334, 114, 34 P.P.C.

1. According to the allegations outlined in the FIR, on 05-07-2023 at 20:00 hours, the applicant/accused along with accused Rano and Dharshi armed with hatchets and accused Chandio and Harchand armed with lathies, along with two unidentified culprits on having alteraction, the applicant inflicted hatchet blow at the left arm of Kirshan, resulting in the amputation of his left hand.

2. The learned counsel representing the applicant has argued that the applicant is innocent and has been falsely implicated due to a matrimonial dispute between the parties, as indicated in the FIR. Addtionally, it is contended that the specific injury attributed to the applicant is yet to be determined if falling under section 324 P.P.C. Furthermore, there is a significant delay of 27 days in lodging the FIR, for which no satisfactory explanation has been provided. It is also highlighted that the co-accused have already been granted bail. Thus, the principle of consistency warrants similar treatment for the applicant. Moreover, there is no risk of the applicant fleeing from justce, and he has no prior convictions, entitling him to bail. He relied upon the case law viz: Muhammad Rizwan v. Gulfam and another (2009 PCr.LJ 73) and Muhammad Luqman and another v. The State (2014 SCMR 12).

3. The learned State Counsel, assisted by the counsel for the complainant, has argued that there are specific allegations against the applicant of causing the amputation of the left hand by inflicting a direct hatchet blow, establishing a prima facie connection to a crime that falls under a prohibitory clause under section 497 Cr.P.C. Hence, they assert that there is no need for further inquiry into his guilt. They further emphasize that the medico-legal report fully supports the complainant's version of events and that the incident was witnessed by natural witnesses present at the scene. Additional, it is highlighted that following the occurrence, the applicant and co-accused fled from the spot. Summing up their arguments, the learned A.P.G. contends that section 334 P.P.C. is entirely applicable to the facts and circumstances of the case. This section entails a sentence of 10 years, falling within the prohibitory clause of section 497(1) of the Cr.P.C Consequently, he opposes the application for bail.

4. In the instant case, applicant is specifically nominated in the FIR with a defined role in causing a direct hatchet blow to the left arm of PW Kirshan, resulting in the amputation of his hand at the wrist. Eye-witnesses have fully implicated the applicant in the commission of the offense in their statements recorded under section 161 of the Cr.P.C., alleging that the applicant caused the aforementioned injury. Upon examination, the Medical Officer, with the assistance of Radiological Expert opinion from the Additional Medical Superintendent (MLC) at LUMHS Hyderabad, diagnosed the injury as "Traumatic Amputation at Level of Left Upper Limb Between Elbow and Wrist", classifying it as "Itlaf-i-udw" falling under section 334 of the P.P.C. This offense carries a sentence of up to 10 years as ta'zir. There is no contradiction in between the oscular version given in FIR, to that of medical evidence and so also the role applicant was not at par with that of his co-accused, therefore, the facts reported in the case law 2009 PCr.LJ 73 and 2014 SCMR 12, are not relevant here.

5. The presence of eye-witnesses at the time of the incident has been duly established and justified. There is no reason to doubt the credibility of their statements. Although the court granted post-arrest bail to other named accused but it is observed that the role of the applicant differs significantly from that of the co-accused and is not similar. Therefore, the principle of consistency does not apply to the applicant's case. Reliance is placed in this regard on the case of Bakhti Rahman v. The State (2023 SCMR 1068), wherein it was held:

"8. So for as the rule of consistency or parity for considering the grant of bail to the petitioner is concerned, in the present facts and circumstances of the case we cannot lose sight of the fact that the roles of the co-accused who were granted bail are distinguishable to the role assigned to the petitioner who caused that fatal injury to the complainant. The doctrine of parity or rule of consistencyin a criminal case elucidates that if the case of the accused is analogous in all respects to that of the co-accused then the benefit or advantage extended to one accused should also be extended to the co-accused on the philosophy that the "like cases should be treated alike". The concept of equal justice requires the appropriate comparability of roles and overt act attributed to the co-offenders, but in case of difference or disparity in the roles due allowance cannot be extended to the co-offenders on the perspicacity that different sentences may reflect different degrees of culpability and or different circumstances."

2025 Y L R 715

[Sindh (Sukkur Bench)]

Before Mahmood A. Khan, J

Nawab Khan---Applicant

Versus

The State and 6 others---Respondents

Cri. Misc. Application No. S-338 of 2024, decided on 4th October, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 162, 173 & 561-A---Penal Code (XLV of 1860), Ss. 324, 337-H(2), 506(2), 504, 147, 148 & 149---Report of Police Officer---Addition or deletion of legal provision---Scope---Applicant was aggrieved of an order passed by Magistrate whereby charge under S.324, P.P.C., was deleted---Validity---It was not a question of adding or deleting sections rather to determine in the first place as to whether the trial was of magisterial nature or was to be proceeded before the Sessions Court---Such determination had to be made by applying the judicial mind but with the supporting/relied upon material available---Rather it was duty of Magistrate to determine the Court of trial as provided in law and as it appeared from the record---In the present case, no such material had even been shown to the Court whereby the S. 162 Cr.P.C, statement could be relied upon for the applicability of S. 324, P.P.C---Application stood dismissed having no merits.

Khalid Hussain and 6 others v. Asif Iqbal and 2 others 2021 PCr.L J 242; Rab Nawaz and another v. The State and 2 others. 2017 PCr.LJ Note 195; Abdul Hameed v. IInd Civil Judge and Judicial Magistrate Badin and 3 others 2021 PCr.LJ 198; Haji Muhammad Zakria Seth v. The State and 2 others 2010 PCr.LJ 691; Muhammad Zaffar Saleem v. The State 2009 YLR 489 and Matahir Shah v. The State and 4 others 2009 MLD 156 ref.

Achar Khan Gabole for Applicant.

Illahi Bux Jamali for the Complainant.

Syed Sardar Ali Shah, Addl. PG for the State.

Date of hearing: 4th October, 2024.

Order

Mahmood A. Khan, J.--- On 19.08.2024 when the matter was presented by the learned counsel for applicant for the first time following order was passed;

"Mr. Illahi Bux Jamali, Advocate files power on behalf of respondents Nos.3 to 8 however, both learned counsel present requires time in order to look into the element of powers available to the concerned Magistrate specially where at the stage of the matter being considered for Magistrate or Sessions trial, such powers with regard to add or delete the sections are available with the Magistrate or not".

Learned counsel for the applicant in respect to the question referred above made his submissions summarized is "that the Magistrate on submission of Section 173 report does not have powers to add or delete Sections for taking of cognizance". He has referred to paragraph-6 of the impugned order which for a ready reference is as follows;

"As far as subsequent inclusion of section 324 P.P.C. is concerned, from perusal of record it appears that instant FIR No.84/2024 was lodged on 03.03.2024, statements under section 161 Cr.P.C, were recorded on same date, however complainant along with his witnesses have recorded their further statements under Section 162 Cr.P.C, on 14.03.2024 and thereupon have made verbal improvements to their earlier stance without any supporting material available on record, hence same is deleted while cognizance is taken against the accused persons under Sections 337H(2), 506/2, 147, 148, 149, 504 P.P.C. Case be registered against the accused, let the process be issued to each accused on bail namely 1. Asif: 2. Aazam, 3. Tariq, 4. Farooq, all sons of Sikandar by caste Mari, 5. Sikandar son of Keehar Mari".

Learned counsel further contends that in the present case the powers not being available the result of the investigation as coming out in the final report was not liable to be disturbed as the case was required, to be sent-up for trial to the Sessions Court and in support of his contentions he relies upon the following authorities;

1. Khalid Hussain and 6 others v. Asif Iqbal and 2 others (2021 PCr.LJ 242

1. Rab Nawaz and another v. The State and 2 others. (2017 PCr.LJ Note 195)

3. Abdul Hameed v. IInd Civil Judge and Judicial Magistrate Badin and 3 others (2021 PCr.LJ 198)

1. Haji Muhammad Zakria Seth v. The State and 2 others (2010 PCr.LJ 691)

5. Muhammad Zaffar Saleem v. The State (2009 YLR 489).

Learned counsel for the complainant however, first read over the FIR whereafter he contended that the record before the concerned Magistrate bears that the alleged offence is said to have taken place at 9:45 whereas the FIR was promptly lodged at about 11:30 hours and alleged accused were efficiently and promptly arrested at 12:O'clock. It is further contended that the visit to the alleged place of incident was made at 1400 hours. It is also contended that no recovery was effected, no empties were collected and learned Magistrate on the second date after looking to the record was pleased to order for the accused to be sent for jail and remand was not entertained. He further contends that the Section 324 P.P.C. which is now being opposed had no supporting material at the time of lodging of the FIR or bearing from the record otherwise as per the investigation required, however the same was acquired by first filing an application before the relevant courts obtaining an order for recording of statement under section 162, Cr.P.C, and the said exercise was made on 14th i.e. after 11 days of the incident. Thereafter, learned counsel read over the 162 Cr.P.C, statement stressing upon the improvement said to have made. He further contended that impugned order has rightly been passed and no disturbance is required.

Learned Additional Prosecutor General contends that it is the duty of police officer to collect material and put-up a report however, in the present case it seems that the complainant has attempted to take-over the role of I.O, and got the sections incorporated by not so available use of his being an Advocate. He however, contends that concerned Magistrate at the time of submissions of report/challan is not to act as post-office and is empowered to ensure that the correct Sections are applied according to the merits of the case. In support of his contentions he relied upon reported case of Matahir Shah v. The State and 4 others (2009 MLD 156).

Having heard learned counsel and gone through the record. Section 173 of the Cr.P.C, is as follows;

"173. Report of police officer: (1) Every investigation under this Chapter shall be completed without unnecessary delay, and, as soon, as it is completed, the officer incharge of the police-station shall [through the Public Prosecutor] -

(a) forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case, and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and

(b) communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given : [provided that, where investigation is not completed within a period of fourteen days from the date of recording of the first information report under Section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decides that the trial should not so commence], (2) Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may, pending the orders of the Magistrate, direct the officer incharge of the police-station to make further investigation.

(3) Whenever it appears from a report forwarded under this section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit.

(4) A Copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reason thinks fit to furnish it free of cost.

[(5) Where the officer incharge of a police station forwards a report under subsection (1), he shall along with the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial.]"

Whereas Section 190 Cr.P.C, provides as follows;

190. Cognizance of offences by Magistrates: (1) All Magistrates of the First Class, or any other Magistrate specially empowered by the Provincial Government on the recommendation of the High Court, may take cognizance of any offence?

(a) upon receiving a complaint of facts which constitute such offence;

(b) upon a report in writing of such facts made by any police officer;

2025 Y L R 724

[Sindh (Mirpurkhas Bench)]

Before Adnan-ul-Karim Memon, J

Muhammad Bux---Applicant

Versus

Shah Nawaz and others---Respondents

Crl. Misc. Applications Nos. S-463 and 466 of 2024, decided on 19th September, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(5)---Penal Code (XLV of 1860), Ss. 324, 403, 506(ii), 337-A(i), 337-F(i), 147, 148 & 149---Attempt to commit qatl-i-amd, criminal misconduct, criminal intimidation, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting, rioting armed with deadly weapon, unlawful assembly---Application for cancellation of bail, dismissal of---Accused was charged for murderous assault upon the complainant party---Grounds for cancellation of bail were distinct from the those for granting bail---Bail was typically granted to ensure an accused's presence in Court during trial and its cancellation could occur under specific circumstances---Common grounds for cancellation of bail were misuse of liberty; accused might be engaged in criminal activities while on bail; undermining the purpose of the temporary release; and tampering with evidence or witnesses---Cancellation of bail is a serious matter and it should only be done in exceptional circumstances---Prosecution must provide strong and substantive evidence to justify the cancellation of bail and the Court must exercise due care and circumspection in making such a decision---In the present case, the Trial Court opined that the ocular account mentioned in FIR was not consistent with the medical evidence as per the content of FIR, lathi blows were caused to the injured but as per the Provisional Medico Legal Certificate, the kind of weapon used was sharp and cutting, therefore, the matter required further inquiry---Further, the offences, under Ss. 324, 337-A(ii) & 506(ii), P.P.C. did not fall within the ambit of the prohibitory clause of S. 497, Cr.P.C---No reasonable ground existed for the cancellation of bail granted to the respondents at this stage---Petitions for the cancellation of bail were dismissed, in circumstances.

2009 SCMR 786; 2004 SCMR 1160; 2005 SCMR 1539; 1994 SCMR 1064; 2004 SCMR 231; Ahtisham Ali v. The State 2023 SCMR 975 and Rana Muhammad Imran Nasarullah v. The State 2022 SCMR 1946 rel.

Afzal Karim Virk along with Applicant.

Shoukat Ali Rahimoon for Respondents.

Shahzado Saleem, A.P.G. for the State.

Date of hearing: 19th September, 2024.

Order

Adnan-ul-Karim memon, J.---These Criminal Miscellaneous Applications have been brought under section 497(5) Cr.P.C for the cancellation of bail granted to the private respondents by the learned Additional Sessions Judge-I, Mirpurkhas in Criminal Bail Applications Nos. 735 and 795/2024 vide commen order dated 12-07-2024 in Crime No. 27/2024 under sections 324, 403, 506(ii), 337-A(i), F(i), 147, 148, 149 P.P.C of P.S Sindhri, District Mirpurkhas. For convenience's sake, an excerpt of the order is reproduced as under:-

"After hearing both sides, it transpires that per content of FIR the inimical terms between the parties is apparent and therefore, the possibility of deliberation, consultation, fabrication, and concoction on the part of the complainant cannot be ruled out as the FIR is admittedly lodged with the unexplained delay of about one day and therefore, the matter requires further inquiry. It also transpires that the ocular account mentioned in FIR is not consistent with the medical evidence as per the content of FIR lath blows were caused to the injured but per Provisional Medico Legal Certificate the kind of weapons used is sharp cutting and therefore matter requires further inquiry. It also transpires that except sections 324, 337-A(ii) and 506(ii) P.P.C. all other sections are bailable in nature. It also transpires that keeping in view the minimum punishment of the offences, sections 324, 337-A(ii) and 506(ii) P.P.C. do not fall within the ambit of the prohibitory clause of section 497 Cr.P.C. So also the applicability of section 324 P.P.C. is yet to be determined by the trial court."

1. At this stage, I asked the learned counsel as to how these Criminal Miscellaneous Applications are maintainable before this Court as the principles governing the grant of bail and the cancellation of bail substantially stand on different footings. Besides, cancellation of bail is a harsh order because it interferes with the liberty of any individual.

On the point of maintainability of these criminal Miscellaneous Applications the learned counsel has argued that this Court can cancel pre-arrest bail granted by the trial court under Section 497(5) of the Cr.P.C., on the premise that Section 497(5) states that "Notwithstanding anything contained in subsections (1) and (2), any High Court may if it appears to it necessary to do so, cancel any order admitting an accused person to bail". This gives the High Court the power to review and cancel bail orders granted by lower courts. He added that while the High Court has the power to cancel bail, it would not do so lightly and this court has to consider various factors, including whether the bail order was patently illegal, erroneous, or factually incorrect, whether the accused has misused the bail by threatening witnesses or tampering with evidence, whether there are new grounds for apprehension that the accused may abscond or interfere with the investigation, whether the accused has violated any conditions imposed on their bail. He submitted that if this Court finds that any of these factors are present, it may exercise its discretion to cancel the bail. On merits, the learned counsel for the applicant/complainant has argued that the FIR is accurate and genuine, and the trial court's decision to grant bail to the respondents is incorrect. He added that the delay in filing the FIR is explained, and the respondents specific role in the crime is clearly stated. He next argued that the evidence, including witness statements and injury reports, supports the complainant's allegations. He further submitted that the respondent's actions do not warrant further investigation and fall under the prohibited category of Section 497(1) Cr.P.C. He emphasized that the respondents have committed a serious crime and should be held accountable. He argued that the respondents had harassed and threatened the complainant after being granted bail, making their life difficult. The trial judge did not consider the seriousness of the offense or the respondent's specific role in the crime. The respondent's bail should be cancelled to ensure justice. Learned counsel submitted that the order is perverse on the ground that the trial court erroneously held in the order that the ocular account mentioned in FIR is not consistent with the medical evidence as per the content of FIR lathi blows were caused to the injured but per Provisional Medico Legal Certificate the kind of weapons used is sharp cutting. Per learned counsel, the Medico-Legal Certificate explicitly shows that the injured received a sharp cutting wound at the hands of the private respondents which is inconsistent with the FIR which also shows that hatchet blow was inflicted upon the injured therefore, the matter does not require further inquiry. He added that punishment of the offenses, section 324, P.P.C. does fall within the ambit of the prohibitory clause of section 497 Cr.P.C.

1. Learned APG assisted by the learned counsel for the private respondents has raised the question of the maintainability of these Criminal Miscellaneous Applications. The learned counsel emphasized that the principles governing the grant and cancellation of bail are different, as they serve distinct purposes in the criminal justice system. He argued that the primary purpose of bail is to ensure that the accused person will appear for their trial. It is a temporary release from custody, conditional upon the accused's promise to return to court as required. The decision to grant bail is typically based on several factors. On merits, the counsel argued that the prosecution's case was fabricated, manipulated, false, frivolous, unbelievable, illogical, and baseless, suffering from numerous legal deficiencies. He asserted that all charges were bailable except for sections 324, 337-A(ii) and 506(ii) of the Pakistan Penal Code (P.P.C.), and even those sections were misapplied in this case. He attributed the complainant's motive to a personal dispute with the applicants/ accused, stemming from a matrimonial conflict. He emphasized that the incident never occurred and that one of the applicants/accused Muzafar, is a minor. He also highlighted inconsistencies between the eye-witness accounts and the medical evidence.

2. I have heard the learned counsel for the parties and perused the record with their assistance and case law cited at the bar.

3. The grounds for cancellation of bail are distinct from those for granting bail. While bail is typically granted to ensure an accused's presence in court during trial, its cancellation can occur under specific circumstances. The common grounds for cancellation of bail are misuse of Liberty. The accused may engage in criminal activities while on bail, undermining the purpose of the temporary release. Tampering with Evidence or Witnesses: The accused might attempt to influence the case by altering evidence or intimidating witnesses. Attempt to Flee. If the accused poses a flight risk, the court may revoke bail to prevent them from evading justice. Violation of Bail Conditions: Failure to adhere to the terms and conditions imposed by the court can be grounds for cancellation. Threatening Witnesses or Victims: If the accused threatens individuals involved in the case, it can jeopardize the integrity of the legal process. Obstructing justice, and engaging in activities that hinder the investigation or prosecution can lead to the revocation of bail.

4. The cancellation of bail is a serious matter, and it should only be done in exceptional circumstances. The prosecution must provide strong and substantive evidence to justify the cancellation of bail, and the court must exercise due care and circumspection in making such a decision. On the aforesaid proposition, I am also fortified by the dictums laid down by the Supreme Court reported in 2009 SCMR 786,2004 SCMR 1160, 2005 SCMR 1539, 1994 SCMR 1064 and 2004 SCMR 231 in which it was held that considerations for cancellation of bail are quite distinct from the considerations for grant of bail. Once bail has been granted by a competent court of law, strong and exceptional grounds are required for cancelling the same. It has to be seen as to whether an order granting bail is patently illegal, erroneous, factually incorrect, and has resulted in a miscarriage of justice. Section 497 (1) Cr.P.C prohibits the grant of bail for offenses punishable with death or imprisonment of 10 years or over. Section 497 (5) Cr.P.C does not command the court to cancel the bail even when the offense is punishable with death or imprisonment for life, and even if the grant of bail is prohibited under Section 497 (1) Cr.P.C, the discretion is left in the court under Section 497 (5) Cr.P.C which is pari meteria with the principles which apply to the setting aside of the orders of acquittal. On the aforesaid proposition, I am guided by the decision of the Supreme Court in the case of Ahtisham Ali v. The State [2023 SCMR 975].

5. As far as section 324 P.P.C. is concerned, in an attempt to murder case falling within the ambit of section 324, P.P.C., the nature of the act done, the intention of the offender, and the circumstances leading to the occurrence are the essential ingredients, which need to be probed into determine the guilt or otherwise of an accused. As such the subject offenses do not fall within the prohibitory clause of section 497 (1) Cr.P.C. However to ascertain the offense for an attempt to murder the victim and injuries sustained by him on the part of his body requires serious consideration as the private respondents are alleged to have inflicted serious injuries to the victim whether through lathi or sharp edged weapon as no firearm has been used, however, FIR and Medical evidence explicitly show such factum which has escaped from the sight of the learned trial court while deciding pre-arrest bail of the private respondents; and it is for the learned trial Court to thresh out the truth after recording the evidence being adduced by the prosecution and defense during trial.

6. To deprive a person of his freedom is most serious. It is judiciously recognized that unfortunately there is a tendency to involve the innocents with a pang of guilt. Once an innocent is put under arrest, then he has to remain in jail for a considerable time. Normally it takes some years to conclude the trial. Ultimate conviction and incarceration of a guilty person can repair the wrong caused by the mistaken relief of interim bail granted to him but damage to an innocent person caused by arresting him, though ultimately acquitted, would be always beyond repair. So whenever reasonable doubt arises about the participation of an accused person in the crime or about the truth/probability of the prosecution case and the evidence proposed to be produced in support of the charge, the accused should not be deprived of the benefit of bail. In such a situation, it would be better to keep an accused person on bail than in jail, during the trial. Freedom of an individual is a precious right. Where the story of the prosecution does not appear to be probable, bail may be granted so that further inquiry may be made into the guilt of the accused.

7. As far as Section 506 P.P.C. is concerned the same provides the punishment for criminal intimidation to the extent of two years, however, if the death threat is issued to any person, the punishment may extend to seven years and then it becomes a non-bailable offense. So far as 'criminal intimidation' is concerned, the same has been defined in Section 503 P.P.C. in the following words:-

"503. Criminal Intimidation: Whoever threatens another with any injury to his person, reputation, or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to.do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation."

1. A bare perusal of the afore-quoted provision of law makes it clear that whenever an overt act is materialized and ended into an overt act, the provision of Section 506(ii) P.P.C. would not be applicable and the only provision that will remain in the field is the overt act, which is committed in consequence of criminal intimidation. On the aforesaid proposition, I am guided by the decision of the Supreme Court in the case of Rana Muhammad Imran Nasarullah v. The State 2022 SCMR 1946. However, in the present case, the complainant simply stated that the accused extended threats of dire consequences, and left after intimidation. However, the subject act did not materialize and ended in an overact on the part of the private respondents, except for allegedly causing injuries to the victims.

2. It has been noticed that after the promulgation of Criminal Law 2nd -Amendment Ordinance, 1990, the concept of simple or grievous injury has been changed and a new definition of hurt has been introduced in Section 332, P.P.C. in the following words: -

"332. Hurt (1) Whoever causes pain, harm, disease, infirmity, or injury to any person or impairs, disables, or dismembers any organ of the body or part thereof any person without causing his death, is said to cause hurt, (2) The following are the kinds of hurt: -

a) Itlaf-i-udw, b) Itlaf-i-udw;

c) Itlaf-i-salahiyyat-i-udw;

1. Section 333 P.P.C. defines the term Itlaf-i-udw-, meaning thereby, whoever dismembers, amputates, or severs any limb or organ of the body of another person is said to cause Itlaf-i-udw. The punishment is provided in section 334 P.P.C. that whoever by doing any act to thereby cause hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person causes itlaf/udw of any person, shall, in consultation with the authorized medical officer, be punished with qisas, and if the qisas is not executable keeping in view the principles of equality under the Injunctions of Islam, the offender shall be liable to arsh and may also be punished with imprisonment of either description for a term which may extend to ten years as ta'zir. Shajjah mentioned in Section 332(2)(c), P.P.C. has further been defined in Section 337, P.P.C. in the following words:

"337 Shajjah(i) Whoever causes, on the head or face of any person, any hurt which does not amount to Itlaf-i-udw or Itlaf-i-salahiyyat-i-udw, is said to cause Shajjah.

(2) The following are the kinds of Shajjah, namely: -

a) Shajjah-i-Khafifah;

b) Shajjah-i-mudihah

c) Shajjah-i-hashimah;

d) Shajjah-i-munaqillah;

e) Shajjah-i-ammah; and

f) Shajjah-i-damighah

(3) Whoever causes Shajjah?

(i) without exposing bone of the victim, is said to cause Shajjah-i-khafifah;

(ii) by exposing any bone of the victim without dislocating it, is said to cause Shajjah-i-mudihah;

(iii) by fracturing the bone of the victim and without dislocating it, is said to cause Shajjah-i-hashimah;

(iv) by causing fracture of the bone of the victim and thereby the bone is dislocated, is said to cause Shajjah-i-munaqillah;

(v) by causing fracture of the skull of the victim so that the wound touches the membrane of the brain, is said to cause Shajjah-i-ammah; and

(vi) by causing a fracture of the skull of the victim and the wound rupturing the membrane of the brain is said to cause Shajjah-i-damighah.

1. Shajjah-i-Khafifah as per the definition in Section 337 P.P.C., is an injury caused to the victim without exposing his bone whereas Shajjah-i-mudihah is an injury where the bone of the victim is exposed without causing fracture, therefore, these are two different kinds of Shujjah under Section 337, P.P.C. and its punishment are provided under Sections 337-A (i) and 337-A(ii), P.P.C. respectively. A very significant difference in the two clauses i.e. Section 337-A (i) and Section 337-A(ii), P.P.C. is that offense "Shajjah-i-Khafifah" under Section 337A(i) P.P.C. as per Schedule 2 of the Cr.P.C is bailable and non-cognizable whereas the offense "Shajjah-i-mudihah" under Section 337- A(ii), P.P.C. is non-bailable and cognizable.

2025 Y L R 735

[Sindh]

Before Mohammad Karim Khan Agha, J

Riaz---Appellant

Versus

The State---Respondent

Criminal Appeal No. 247 of 2020, decided on 5th November, 2024.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Delay of one day in lodging the FIR---Plausibly explained---Accused was charged that he along with his co-accused tried to snatch mobile phone from the deceased/grand maternal son of complainant and on his resistance, they opened straight fires upon the deceased, due to which he died---Record showed that the FIR was lodged after a delay of one day---Said delay had largely been explained by the deceased being transferred between hospitals where he died on arrival at the Hospital and then the body being taken back to Medical Center for legal formalities and post mortem which was not allowed by the complainant's side who immediately took the body for burial from the Medical Center before lodging the FIR---Main concern was to save the life of the deceased who was seriously injured at the scene of the crime as opposed to lodging the FIR---Fact that the FIR was lodged against unknown persons also gave further weight to the fact that the complainant was not trying to falsely implicate any one---As such, the slight delay in lodging the FIR was not fatal to the prosecution case---Although it was found that the delay in lodging the FIR had been reasonably explained the fact that the Police Station was only 3-km away from the wardat put the Court to some caution---Circumstances established that the prosecution had failed to prove its case against the appellant beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Identification parade---No description of accused given by eye-witness before identification parade---Accused was charged that he along with his co-accused tried to snatch mobile phone from the deceased/grand maternal son of complainant and on his resistance, they opened straight fires upon the deceased, due to which he died---Eye-witness, who was related to the deceased, was a shop keeper whose shop was allegedly robbed by the appellant and his accomplices---According to his evidence on 14.03.2018 at about 5pm he was present in a shop when three person's duly armed came on motor cycle and robbed him of cash---As the robbers were leaving the shop the deceased, who was from the neighborhood, was robbed by the appellant and his two accomplices---Deceased however put up resistance which led to one of the three robbers shooting him---Said witness was related to the deceased however he had no proven enmity with the appellant and as such his evidence could be taken at its own face value---Police recorded his eye-witness S.161 Cr.P.C statement within two days of the incident and he picked out the appellant from identification parade 13 days later---Eye-witness did not know the accused before the incident and thus it was necessary for the identification parade to be held and it was also necessary that at the time of giving his S.161 Cr.P.C statement he should have given a hulia/description of the appellant which he failed to do which rendered his correct identification of the appellant at the identification parade doubtful---As per evidence of other eye-witness on 14.03.2018 at about 5.15pm he was on his way home on motor bike and when he reached a Masjid he heard firing, but continued his journey and saw three persons on a motor cycle who were fleeing away---Shop keepers informed him that dacoits had shot the deceased---On 27.03.2018 he attended an identification parade where he picked out the appellant as the person who was driving the motor cycle---Said witness was not related to the deceased and as such he was an independent witness who had no reason to falsely implicate the appellant in the case---Said eye-witness, however, did not give any description/hulia of the appellant at the time of giving his S.161 Cr.P.C statement---Said witness appeared to be a chance witness and he did not witness the murder and only seen three persons on a motor cycle fleeing away---During his cross examination said witness stated that he was on his feet which contradicted his evidence that he was on a motor bike; he could not make out the make, model or even color of the motor bike as it passed him at speed; he could not even remember the color of the clothes of the persons who were riding the motor cycle; he had seen no one firing at the deceased and as such was not an eye-witness to the murder---Based on the said evidence, it was found impossible that he could have identified correctly the appellant at the identification parade when he had not given any hulia/ description of accused---Circumstances established that the prosecution had failed to prove its case against the appellant beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Ghulam Akbar and others v. The State 2007 YLR 1506; Javed Khan alias Bacha and another v. The State and another 2017 SCMR 524; Hakeem and others v. The State 2017 SCMR 1546; Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others PLD 2019 SC 675; Aijaz Nawaz alias Baba v. The State 2019 PCr.LJ 1775; Ansar and others v. the State and others 2023 SCMR 929 and Atta Khan and 2 others v. The State 2024 PCr.LJ 1448 ref.

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

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

----Ss. 302(b), 393 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of photographs from CCTV---Inconsequential---Accused was charged that he along with his co-accused tried to snatch mobile phone from the deceased/grand maternal son of complainant and on his resistance, they opened straight fires upon the deceased, due to which he died---As per record when reviewing the photos taken from the USB were exhibited, which came from the CCTV, none of them showed any shooting taking place outside the shop---There was only one clear picture of three persons on a motor bike, which could have been taken anywhere and at any time and at any place---Appellant claimed that he was not in the picture showing three persons on a motor bike and even if it was him in the picture the same alone was insufficient to connect him to the crime of robbery and murder of the deceased as it only showed him on a motor bike with two others---Thus, without going even into the question of admissibility and safe custody, the photos from the CCTV taken from outside a house were of no assistance to the prosecution in proving the presence of the appellant at the crime scene at the time of the incident---Circumstances established that the prosecution had failed to prove its case against the appellant beyond a reasonable doubt---Appeal against conviction was allowed in circumstances.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Confession before the police---Inadmissible in evidence---Accused was charged that he along with his co-accused tried to snatch mobile phone from the deceased/grand maternal son of complainant and on his resistance, they opened straight fires upon the deceased, due to which he died---Record showed that the accused was already under arrest in a police encounter case when out of the blue with no evidence against him in the case he confessed to the murder which carried the death penalty---Said fact did not appeal to logic, reason or commonsense and was simply unbelievable---Significantly the police did not produce appellant before a Magistrate to record his confession despite producing him before the Magistrate for an identification parade---Alleged confession before the police by the appellant which the appellant claimed was the result of torture whilst in police custody was also inadmissible in evidence---Circumstances established that the prosecution had failed to prove its case against the appellant beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 393 & 34---Qatl-i-amd, robbery, common intention---Appreciation of evidence---Recovery of crime empty from the spot---Inconsequential---Accused was charged that he along with his co-accused tried to snatch mobile phone from the deceased/grand maternal son of complainant and on his resistance, they opened straight fires upon the deceased, due to which he died---Empty which was recovered from the crime scene was a 9mm one however a 30 bore empty was found to match with a pistol which was not recovered from the appellant---So the recovered empty did not link the appellant to the crime---Circumstances established that the prosecution had failed to prove its case against the appellant beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

Iftikhar Ahmed Shah, Raja Zeeshan and Muhammad Naeem Awan for Appellant.

Muhammad Iqbal Awan, Addl. Prosecutor General for the State.

Muhammad Daud Narejo and Muhammad Yousif Narejo for the Complainant.

Date of hearing: 30th October, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Riaz son of Pir Bux was tried in the Model Criminal Trial Court/ 1st Additional District and Sessions Judge, Karachi, East, in Sessions Case No. 692 of 2018 in respect of Crime No. 82/2018 registered under Sections 397, 302, 34 P.P.C. at P.S. Gulstan-e-Johar, Karachi. After completion of the trial, vide judgment dated 19. 2.2020, the appellant was convicted under Section 393 read with 34 P.P.C. and sentenced to undergo five years for simple imprisonment. The appellant was also convicted under section 302(b) read with 34, P.P.C. and sentenced to undergo imprisonment for life with direction to pay compensation of Rs.5,00,000/- to the legal heirs of the deceased and in default of payment whereof, he shall further undergo simple imprisonment of six months. All the sentences were directed to run concurrently. The benefit of section 382-B Cr.P.C. was extended to the appellant. The reason as disclosed in the impugned judgment for not awarding death penalty to the appellant is that he was under the age of eighteen years at the time of commission of offence; therefore, he was entitled to such benefit under section 16 of the Juvenile Justice System Act, 2018.

1. The brief facts of the case as narrated by complainant Jehnazeb son of Zaman Khan are that Asad Khan son of Zahid Khan ('deceased') was his grand maternal son. On 14.3.2018 at about 1715 hours, when the deceased was coming to his house, he received one shot near Masjid; it was about 1715 hours' time Asr prayer, he was proceeding to Masjid. He saw some people, along with children, running towards his house. Iqbal informed him that Asad Khan has sustained a bullet injury near the gate of Ayesha Masjid, thereafter, they took Asad Khan to Dar ul Sehat Hospital for treatment. The doctors advised them to take him to Agha Khan Hospital due to his critical condition. When they brought him to Agha Khan Hospital, he was pronounced dead on arrival. Thereafter, the complainant proceeded to his house. His son Shahzaib brought the deceased to JPMC for legal proceedings. Then Iqbal disclosed on the funeral of the deceased that he was going to perform Asr Nimaz, and then on one motorcycle, three unknown persons came, who were wearing Shalwar Qameez and having deadly weapons, and tried to snatch a mobile phone from him, and on his resistance, they opened straight fires upon the deceased, due to which he died, hence the instant FIR was registered.

2. After usual investigation police submitted the challan before the Court concerned and after completing necessary formalities, learned trial Court framed the charge against the appellant, to which he pleaded not guilty and claimed trial.

3. In order to prove its case the prosecution examined twelve (12) witnesses, who exhibited numerous documents and other items. Then statement of accused under Section 342 Cr.P.C was recorded whereby he denied the allegations levelled against him and claimed his false implication by the police. However, he neither examined himself on Oath nor led any evidence in his defense.

4. After hearing the parties and assessing the evidence on record the trial court convicted and sentenced the appellant as stated earlier in this Judgment, hence the appellant has filed this appeal against his conviction.

5. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case hence the delay of one day in lodging the FIR; that the eye-witnesses did not witness the incident and as such their evidence should be discarded; that even otherwise the identification parade was defective; that no robbed amount or pistol was recovered from the appellant; that the USB which contains CCTV footage of the incidentn does not show any person murdering the deceased; that even otherwise the USB is inadmissible as its safe custody was not preserved; and as such 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 Ghulam Akbar and others v. The State (2007 YLR 1506), Javed Khan alias Bacha and another v. The State and another (2017 SCMR 524), Hakeem and others v. The State (2017 SCMR 1546) and Ishtiaq Ahmed Mirza and 2 others v. Federation of Pakistan and others (PLD 2019 SC 675), 7. Learned APG and learned counsel for the complainant fully supported the impugned judgment. In particular, they contended that the eye-witnesses evidence was trust worthy, reliable and confidence inspiring and could be safely relied upon; that the photos in the USB supported the prosecution case; that the medical evidence supported the ocular evidence and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of their contentions, they placed reliance on the cases of Aijaz Nawaz alias Baba v. The State (2019 PCr.LJ 1775), Ansar and others v. the State and others (2023 SCMR 929) and Atta Khan and 2 others v. The State (2024 PCr.LJ 1448).

6. I have heard the learned counsel for the appellant as well as learned APG and learned counsel for the complainant; I have also perused the material available on record and the case law cited at the bar.

7. 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 Asad Khan (the deceased) was murdered by firearm on 14.032018 at about 5pm at chowk near Masjid Ayesha Block one Gulishan-e-Jauhar when he resisted a robbery. In fact learned counsel for the appellant did not dispute this fact.

8. The only question left before me therefore is who murdered the deceased by firearm and attempted to rob him at the said time, date and location?

9. 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 for which he was convicted for the following reasons;

(a) That the FIR was lodged after a delay of one day. This delay has largely been explained by the deceased being transferred between hospitals where he died on arrival at the Aga Khan Hospital and then the body being taken back to JPMC for legal formalities and post mortem which was not allowed by the complainant's side who immediately took the body for burial from the JPMC before lodging the FIR. The main concern was to save the life of the deceased who was seriously injured at the scene of the crime as opposed to lodging the FIR. The fact that the FIR was lodged against unknown persons also gives further weight to the fact that the complainant was not trying to falsely implicate any one. As such the slight delay in lodging the FIR is not fatal to the prosecution case. Although I find that the delay in lodging the FIR has been reasonably explained the fact that the PS was only 3KM away from the wardat puts me to some caution.

(b) find that the prosecution case primarily hinges on whether believe the evidence of the eye-witnesses especially in terms of the correct identification of the appellant who robbed and murdered the deceased whose evidence I shall consider in detail below;

(i) Eye-witness PW 2 Asad Javed. He is related to the deceased who was a shop keeper whose shop was allegedly robbed by the appellant and his accomplices. According to his evidence on 14.03.2018 at about 5pm he was present in a shop situated near Ayesha Masjid when three person's duly armed came on motor cycle and robbed him of cash. As the robbers were leaving the shop one person Asad who was from the neighborhood was attempted to be robbed by the appellant and his two accomplices. Asad/deceased however put up resistance which lead to one of the three robbers shooting him. A house opposite the shop owned by PW Naveed had CCTV footage of the incident who handed over to him the CCTV footage which he handed over to the IO at the time of the site inspection. On 27.03.2018 he picked the appellant out from an identification parade as one of the persons involved in this incident.

This witness was related to the deceased however he had no proven enmity with the appellant and as such his evidence can be taken at its own face value. The police recorded his eye-witness S.161, Cr.P.C statement within two days of the incident and he picked out the appellant from an identification parade 13 days later.

The eye-witness did not know the accused before the incident and thus it was necessary for the identification parade to be held and it was also necessary that at the time of giving his S.161 Cr.P.C statement he gave a hulia/descrption of the appellant which he failed to do which renders his correct identification of the appellant at the identification parade doubtful.

In this respect reliance is placed on the case of Javed Khan v. The State (2017 SCMR 524) concerning the necessity for an early hulia/description of an accused by an eye-witness in his S.161 Cr.PC statement before an identification parade and the need to strictly follow the rules governing identification parades where it was held as under at P.528 to 530:

"7. We have heard the learned counsel and gone through the record. The prosecution case rests on the positive identification pmeeedings and the Forensic Science Laboratory report which slates that the bullet casing sent to it (which was stated to have been picked up from the crime scene) was fired from the some pistol (which was recovered from Raees Khan in another case). We therefore proceed to consider both these aspects of the case. As regards the identification proceedings and their context there is a long line of precedents stating that identification proceedings must be carefully 'conducted. In Ramzan v. Emperor (AIR 1929 Sid 149) Perceval, CJ, writing for the Judicial Commissioner's Court (the precursor of the High Court of Sindh) held that, "The recognition of a dacoit or other offender by a person who has not previously seen him is, I think, a form of evidence, which has always to be taken with a considerable amount of caution, because mistakes are always possible in such cases" (page 149, column 2). In Alim v. State (PLD 1967 SC 307) Cornelius CI, who had delivered the judgment of this Court, with regard to the matter of identification parades held, that, "Their (witnesses) opportunities for observation of the culprit were extremely limited. They had never seen him before. They had picked out the assailant at the identification parades, but there is a clear possibility arising out of their statements that they were assisted to do so by being shown the accused person earlier" (page 313E). In Lal Pasand v. The State (PLD 1981 SC 142) Dorab Patel J, who had delivered the judgment of this Court, held that, if a witness had not given a description of the assailant in his statement to the Police and identification took place four or five months after the murder it would, "react against the entire prosecution case" (page 145C). In a more recent judgment of this Court, Imran Ashraf v. State (2001 SCMR 424), which was authored by lftikhar Muhammad Chaudhry J, this Court held that, it must be ensured that the identifying witnesses must "not see the accused after the commission of the crime till the identification parade is held immediately after the arrest of the accused persons as early as possible" (page 485P).

1. The Complainant (PW-5) had not mentioned any features of the assailants either in the FIR or in his statement recorded under section 161, Cr.P.C. therefore there was no benchmark against which to test whether the appellants, who he had identified after over a year of the crime, and who he had fleetingly seen, were in fact the actual culprits. Neither of the two Magistrates had certified that in the identification proceedings the other persons, amongst whom the appellants were placed, were of similar age, height, built and colouring. The main object of identification proceedings is to enable a witness to properly identify a person involved in a crime and to exclude the possibility of a witness simply confirming a faint recollection or impression, that is, of an old, young, tall, short, fat, thin, dark or fair suspect....

2. As regards the identification of the appellants before the trial court by Nasir Mchboob (PW-5), Subedar Mehmood Ahmed Khan (PW-6) and ldress Muhammad (PW-7) that too will not assist the Prosecution because these witnesses had a number of opportunities to see them before their statements were recorded. In State v. Farman (PLD 7985 SC 1), the majority judgment of which was authored by Ajmal Mian J, the learned judge had held that an identification parade was necessary when the witness only had a fleeting glimpse of an accused who was a stranger as compared to an accused who the witness had previously met a number of times (page 25V). The sante principle was followed in the unanimous judgment of this Court, delivered by Nasir Aslam Zahid J, in the case of Muneer Ahmad v. State (1998 SCMR 752), in which case the abductee had remained with the abductors for some time and on several occasions had seen their faces. In the present type of case the culprits were required to be identified through proper identification proceedings, however, the manner in which the identification proceedings were conducted raise serious doubts (as noted above) on the credibility of the process. The identification of the appellants in court by eye-witnesses who had seen the culprits fleetingly once would be inconsequential." (bold added)

The Supreme Court case of Mian Sohail Ahmed v. State (2019 SCMR 956) has also emphasized the care and caution which must be taken by the courts in ensuring that an unknown accused is correctly identified.

Not only was no hulia/description given by this eye-witness in his S.161 Cr.P.C statement the appellant had even asserted he had been shown to the eye-witness by the police before the identification parade. Even in the memo. of identification it is noted as under;

"The witness identified accused by pointing at him and said, "Accused is standing at Serial No.03 from left who took me as hostage and who while fleeing started the bike and escaped along with his 02 co-accused accomplices"

Thus, as per the identification memo. the eye-witness did not give him the specific role of robbing and shooting the deceased but instead his role was to take him hostage whilst fleeing with his two accomplices. It is settled by now that not only must the eye-witness pick out the accused at the identification parade but he must also state the specific role which he saw the accused play in the crime for his eye-witness evidence to be relied upon. In this respect reliance is placed on the case of Hakeem (Supra). In this case the eye-witness has assigned the accused the role of taking him hostage not shooting any one on resistance. This statement before the judicial magistrate is also contrary to the evidence which the eye-witness later gave before the trial court where he makes no mention of being held hostage by anyone. Even in his evidence dishonest improvements seem to have been made from his S.161 Cr.P.C statement. The identification parade itself was not carried out in accordance with the law. For example, no CNIC numbers of the dummies were taken, the dummies were all dissimilar when they were meant to be the similar to the appellant; the same dummies were used in the second identification parade.

As such based on the above discussion I find that although the eye-witness might have been present at the time of the incident I cannot safely rely on him correctly identifying the appellant as one of the persons who robbed or murdered the deceased.

(ii) Eye-witness PW 3 Abdul Sattar. According to his evidence on 14.03.18 at about 5.15pm he was on his way home on motor bike and when he reached Ayesha Masjid he heard firing. He continued his journey and saw three persons on a motor cycle who were fleeing away. Shop keepers informed him that dacoits had shot the deceased. On 27.03.2018 he attended an identification parade where he picked out the appellant as the person who was driving the motor cycle. The witness is not related to the deceased and as such he is an independent witness who had no reason to falsely implicate the appellant in this case. This eye-witness however did not give any description/hulia at the time of giving his S.161 Cr.P.C statement of the appellant. He also appears to be a chance witness. He did not witness the murder and only saw three persons on a motor cycle fleeing away. During his cross examination he stated that he was on his feet which contradicted his evidence that he was on a motor bike; he could not make out the make, model or even color of the motor bike as it passed him at speed; he could not even remember the color of the Shalwar Qameez of the persons who were riding the motor cycle; he saw no one firing at the deceased and as such was not an eye-witness to the murder.

Based on the above discussion I find it impossible that he could have identified correctly the appellant which by his own admission was on a motor cycle which was being driven speedily. If he could not remember the make, model or even color of the bike or the even the color of any of the clothes being worn by any three of the persons who were riding the bike I find it impossible that he could correctly indentify the appellant at the identification parade when he had not given any Hulia/description of him, even otherwise his identification parade suffered from the same procedural defects as the eye-witness mentioned above. Thus for the reasons mentioned above I find that I cannot safely rely on this eye-witnesses correct identification of the appellant even if he was near the crime scene at the relevant time which appears doubtful.

Thus, based on my disbelieving the evidence of two eye-witnesses in respect of correctly identifying the appellant as being one of the persons who murdered the deceased what other supportive/corroborative material is their against the appellant?

(c) The prosecution has placed heavy reliance on photo's taken from recovered CCTV footage from the house of PW 6 Naveed which faced opposite the shop and would have captured the entire incident as per evidence of PW 6 Naveed which is reproduced below in material part;

"Shop of PW-Asad Javed is located in front of my house. Three CCIN's are installed at my house. Shop of Asad and Masjid e Ayesha could be viewed in the CCTV installed at my house. The incident dated 14.03.2018 at 1700 hours was captured by CCTV installed at my house"

However when reviewing the photos taken from the USB which came from the CCTV which were exhibited none of them showed any shooting taking place outside the shop. There is only one clear picture of 3 persons on a motor bike which could have been taken any where and at any time and at any place. The appellant claims that he is not in the picture showing three persons on a motor bike and even if it is this picture alone is insufficient to connect him to the crime of robbery and murder of the deceased as it only shows him on a motor bike with two others. Thus, without going even into the question of admissibility, safe custody etc these photo's from the CCTV taken from outside Naveed's house are of no assistance to the prosecution in proving the presence of the appellant at the crime scene at the time of the incident.

(d) Admittedly the medical evidence supports the eye-witness/ prosecution evidence that the deceased died from firearm injuries. However the medical evidence cannot indicate who actually caused the injuries.

2025 Y L R 757

[Sindh]

Before Irshad Ali Shah, J

Asif---Appellant

Versus

The State---Respondent

Criminal Appeal No. 409 of 2018, decided on 17th August, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, commom intention---Appreciation of evidence---Last seen evidence---Not sufficient for conviction---Accused was charged that he along with his co-accused committed murder of the deceased by strangulating his throat with electric wire---Admittedly, complainant was not eye-witness to the incident therefore, his evidence was of little help to the case of prosecution---Witnesses stated that on the date of incident they had seen the appellant and his co-accused taking away with them the deceased on a pickup---On the next day, they were informed that the dead body of deceased had been found lying adjacent to a madarsa---If the version of said witnesses was believed to be true, then their evidence was only to the extent that they had last seen the deceased in the company of the appellant and the acquitted accused---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Last seen evidence---Scope---Last seen evidence is a weak type of evidence.

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

----Ss. 302(b) & 34---Qatl-i-amd, commom intention---Appreciation of evidence---Investigating Officer not examined by prosecution---Accused was charged that he along with his co-accused committed murder of the deceased by strangulating his throat with electric wire---Initial investigation of the case was conducted by Investigating Officer, and he had not been examined by the prosecution for the reason that he had retired from service---Retirement of the employee may not be a valid reason for his non-examination---By such act, the appellant's defence was seriously prejudiced---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, commom intention---Appreciation of evidence---Confessional statement of the accused---Infirmities---Accused was charged that he along with his co-accused committed murder of the deceased by strangulating his throat with electric wire---Record showed that Investigating Officer produced the appellant before the Magistrate having jurisdiction for recording his confessional statement; such production of the appellant was on 3rd day of his arrest---No explanation for such delay was offered---Judicial Magistrate stated that he recorded the confessional statement of the appellant on the next day of his production before him, wherein the appellant stated that he and acquitted co-accused had committed the death of the deceased by strangulating his throat---Confessional statement of the appellant had been recorded on a computerized printed proforma, containing pre-written questions in English language, which did not satisfy the requirement of law---On asking, Investigating Officer was fair enough to admit that after recording confessional statement of the appellant, his custody was handed over to him for jail---Such fact was against the spirit of law, hence it would be hard to maintain conviction against the appellant on the basis of his judicial confession, which was hit by defects---Appellant had pleaded innocence by denying that he made any judicial confession---In such circumstances, it would be safe to conclude that the prosecution had not been able to prove the involvement of the appellant in present case beyond shadow of reasonable doubt---Appeal against conviction was allowed, in circumstances.

Sulleman v. The State 2006 SCMR 366 ref.

Muhammad Azhar Hussain and another v. The State and another PLD 2019 SC 595; Naqibullah and another v. The State PLD 1978 SC 21; Muhammad Pervez and others v. The State and others 2007 SCMR 670 and Muhammad Mansha v. The State 2018 SCMR 772 rel.

Muhammad Munir Ahmed for Appellant.

Muhammad Anwar Mahar, DDPP for the State.

Muhammad Iqbal Baloch and Shakeel Ahmed for the Complainant.

Date of hearing: 17th August, 2023.

Judgment

Irshad Ali Shah, J.---It is alleged that the appellant with rest of the culprits took away with them Zahid and then committed his murder by strangulating his throat with electric wire, for that the present case was registered. At trial, the appellant, co-accused Ikram and Kamran were charged for the said offence, which they denied and prosecution to prove the same, examined complainant Khamiso and his witnesses and then closed its side. On conclusion of trial, co-accused Ikram and Kamran were acquitted while the appellant was convicted under section 302(b), P.P.C. and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/ - to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 01 year with benefit of section 382-B, Cr.P.C by III- Additional Sessions Judge, Malir, Karachi vide judgment dated 03.02.2016. On filing of appeal, the conviction and sentence so awarded to the appellant was set aside by this Court vide judgment dated 23.11.2017 with direction to learned trial Court to record statement of the appellant under Section 342, Cr.P.C afresh and then to pass fresh judgment, the statement of the appellant was recorded afresh and then fresh judgment was passed against the appellant on 03.04.2018 by learned III-Additional Sessions Judge, Malir, Karachi whereby he was again convicted under Section 302(b), P.P.C. and sentenced to undergo imprisonment for life and to pay compensation of Rs.100,000/- to the legal heirs of the deceased and in default whereof to undergo simple imprisonment for 01 year with benefit of section 382-B, Cr.P.C, which he has impugned before this Court by preferring the instant Criminal Jail Appeal.

1. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case by the police at the instance of the complainant party; on the basis of same evidence co-accused Ikram and Kamran have been acquitted and even otherwise, inclusive of remission, he has already undergone more than 22 years of the sentence. By contending so, he sought for acquittal of the appellant by extending him benefit of doubt.

2. It is contended by learned DDPP for the State and learned counsel for the complainant that the appellant during course of investigation has made a judicial confession and his case is distinguishable to that of acquitted accused. By contending so, they sought for dismissal of the appeal. In support of their contentions, they relied upon case of Sulleman v. The State (2006 SCMR 366).

3. Heard arguments and perused the record.

4. Admittedly, complainant Khamiso is not eye-witness to the incident therefore; his evidence is of little help to the case of prosecution. It was stated by P.Ws Abdul Karim and Muhammad Amin that on the date of incident they saw the appellant and the above named co-accused taking away with them the deceased on their Suzuki pickup. On the next day, they were informed that the dead body of Zahid has been found lying adjacent to Madarsa at Landhi. If their version is believed to be so, then their evidence is only to the extent that they saw the appellant and the acquitted accused to be in company of the deceased lastly. Last seen evidence obviously is a weak type of evidence. Surprisingly, it has been disbelieved even by learned trial Court while recording acquittal of above named co-accused. Initial investigation of the case was conducted by I.O/SIP Sagheer Ahmed Baig, he has not been examined by the prosecution for the reason that he has retired from the service, the retirement of the employee may not be a valid reason for his non-examination. By such act, the appellant obviously has been prejudiced in his defence seriously. It was stated by I.O/SIP Shahid Mehmood that on investigation, he produced the appellant before the Magistrate having jurisdiction for recording his confessional statement; such production of the appellant was on 3rd day of his arrest. No explanation to such delay is offered. It was stated by Mr. Nadir Khan Burdi, the Magistrate, that he recorded the confessional statement of the appellant on the next day of his production before him, whereby it was stated by him that he and above named acquitted co-accused had committed the death of the deceased by strangulating his throat. The confessional statement of the appellant has been recorded on a computerized printed pro forma, containing the pre-written questions in English language, it does not satisfy the requirement of law. On asking, I.O/SIP Shahid Mehmood was fair enough to admit that after recording confessional statement of the appellant, his custody was handed over to him for jail. It was against the spirit of law. It would be hard to maintain conviction against the appellant on the basis of his judicial confession, which is hit by defects as are detailed above. The appellant has pleaded innocence by denying to have made any judicial confession. In these circumstances, it would be safe to conclude that the prosecution has not been able to prove the involvement of the appellant in present case beyond shadow of reasonable doubt and to such benefit he too is found entitled.

5. In the case of Muhammad Azhar Hussain and another v. The State and another (PLD 2019 SC 595), it has been held by Apex Court that:

"We have also not felt comfortable with the printed form, purportedly used to administer warnings to the accused before recording of their statements. A confession may entail formidable consequences for an accused facing indictment and thus it is incumbent upon the Magistrate to ensure that the maker consciously comprehends the consequences of his choice and thus it is most important that the Magistrate himself, face to face, faithfully communicates to the accused all the relevant warnings, as contemplated by Section 364 of the Code of Criminal Procedure, 1898, a surer way to establish that the confession is free from all taints, thus we would not approve convenience procuring accused' s signature on a printed format. On an overall analysis of the prosecution case, confessional statements cannot be relied upon without potential risk of error."

1. In the case of Naqibullah and another v. The State (PLD 1978 SC 21), it has been held by Apex Court that:

"The prosecution has also failed to give any explanation for the considerable delay in the production of the two accused before the Magistrate for the purposes of recording their confessions. It is rather unfortunate that even the learned Magistrate did not satisfy himself about the causes of this delay before proceeding to record the two confessional statements in question."

1. In the case of Muhammad Pervez and others v. The State and others (2007 SCMR 670), it has been held by Apex Court that:

"It is admitted fact that after recording the confessional statement of the appellants was handed back to the police. Such type of confession keeping in view the peculiar circumstances highlighted hereinabove appears to be irrelevant as law laid down by this Court in Khuda Bakhsh's case 1969 SCMR 390."

1. In the case of Muhammad Mansha v. The State (2018 SCMR 772), it has been held by the Apex court that;

2025 Y L R 769

[Sindh]

Before Muhammad Saleem Jessar, J

LAL MUHAMMAD---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 1515 of 2024, decided on 19th August, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss. 394, 397, 337-F(ii)---Person voluntarily causing hurt in committing robbery, Robbery or dacoity with attempt to cause death or grievous hurt---Post arrest bail, grant of---Further inquiry---FIR was registered a day after the alleged incident---Accused was arrested after five months and subjected to an identification parade ten days later---Accused had been picked up by the complainant as well as witnesses at the time of his identification parade, which was held after about 10 days---Identification parade with an unexplained delay loses its authenticity in evidence---Accused was not found in possession of the robbed phone or his own phone, which could have linked him to the crime---Injury allegedly sustained by the complainant had been declared to be punishable under S.337-F(ii), P.P.C, which carried maximum punishment of up to three years, whereas, Ss. 394 & 397, P.P.C also carried punishment of four years as well as seven years respectively, thus, the offences did not fall within the prohibitory clause of S. 497, Cr.P.C---Post arrest bail application was allowed, in circumstances.

Irfan and another v. the State and another 2018 YLR 185 and Muhammad Idrees v. The State 2023 MLD 1972 ref.

Muhammad Ramzan for Applicant.

Siraj Ali Khan Chandio, Additional Prosecutor General, Sindh for the State.

2025 Y L R 774

[Sindh]

Before Naimatullah Phulpoto and Irshad Ali Shah, JJ

Syed Salahuddin---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 1145 of 2024, decided on 18th September, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 409, 420, 468, 471, 477-A, 109 & 34---Criminal breach of trust by a public servant, cheating and dishonestly inducing someone to deliver property, forgery for the purpose of cheating, using a forged document as genuine, falsification of accounts, abetment, common intention---Bail, refusal of---Allegation against the petitioner/accused was that he and others misappropriated the amount of the complainant and his family---Record showed that petitioner/accused and others misappropriated the amount of the complainant and encashed as many as 21 bank instruments on different dates without consent and knowledge of the complainant by his fake and forged signatures upon the banking instruments---According to expert's opinion the signatures appearing on the bank instruments did not tally with the previous routine admitted signatures and specimen signatures of victim/complainant---Hence, they were completely fake/fictitious in all respects, and it appeared that petitioner/accused used to deposit and withdraw the amount from various accounts of the complainant with his forged signatures and huge amount was credited in the accounts opened and operated by the petitioner/accused in his name and in the names of his wife and near relatives---Prima facie, there were reasonable grounds for believing that the petitioner/accused had committed the alleged offences---No case for grant of post-arrest bail to the petitioner/accused was made out---Bail application was dismissed, in circumstances.

Mumtaz Ali Solangi v. The State 2021 YLR 50; Usman Farooqi v. The State 1999 PCr.LJ 1186; Syed Zulqarnain Shah v. The State 2022 PCr.LJ 112; Muhammad Zafar and others v. The State 2015 YLR 1446 and Wajid Ali v. D.C Lahore 2000 MLD 1572 ref.

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

----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations made in bail orders are tentative in nature, and the Trial Court should not be influenced by the same while deciding the case of the petitioner/ accused on merits.

Tahir Mehmood and Arifullah Khan for Applicant.

Pir Riaz Muhammad Shah DAG.

Rehman Aziz Malik for the Complainant.

I.O/Inspector Sanaullah, FIA Karachi.

Date of hearing: 18th September, 2024.

Order

Naimatullah Phulpoto, J.---Applicant/accused Syed Salahuddin seeks post arrest bail in Crime No. 05/2024 for offences punishable under Sections 409, 420, 468, 471, 477-A, 109, 34, P.P.C registered as P.S FIA, CBC, Karachi Prior to this, applicant/accused applied for the same relief before learned Special Court (Offences in Banks) Sindh at Karachi, the same was rejected vide order dated 20.04.2024.

1. Brief acts of the prosecution case are that Fahad Butt a British citizen made complaint against applicant/accused Syed Salahuddin ex-Branch Manager DIBPL and others regarding embezzlement by the employees of Dubai Islamic Bank Pakistan, alleging therein that complainant Fahad Butt is the customer of Dubai Islamic Bank Pakistan since 2017, he was subjected to embezzlement of USD 866,000/- and Rs. 161,000,000/- which were deposited in Term Deposits in Dubai Islamic Bank of montly and yearly profits. It is alleged that when investment was likely to be mature, complainant and his family intended to invest, the amount in various Government of Pakistan schemes for overseas Pakistanis, they approached Dubai Islamic Bank, they were shocked to know that their money has been embezzled. On 01.11.2023 complainant filed complaint before CEO Junaid Ahmed. After inquiry, FIR No. 05/2024 for offences punishable under Sections 409, 420, 468, 471, 477-A, 109, 34, P.P.C was offences punishable at P.S FIA, CBC, Karachi against applicant/accused Syed Salahuddin and others. After usual investigation, challan was submitted before learned Special Court (Offences in Banks) Sindh at Karachi.

2. Mr. Tahir Mehmood advocate for the applicant/accused contended the applicant/accused is innocent; that trial Court lacks jurisdiction to try this case; that material collected during investigation is insufficient to connect the applicant/accused in the commission of the offence; that P.Ws in their statements recorded under Section 161, Cr.P.C have not specifically implicated the applicant/accused in the commission of the offences; that case against the applicant/accused is entirely depends upon documentary evidence, which is in possession of the prosecution; that there is no possibility of tampering with the same and prayed for bail. In support of their contentions, reliance has been placed upon the cases reported as Mumtaz Ali Solangi v. The State (2021 YLR 50), Usman Farooqi v. The State (1999 PCr.LJ 1186), Syed Zulqarnain Shah v. The State (2022, PCr.LJ 112), Muhammad Zafar and others v. The State (2015 YLR 1446) and Wajid Ali v. D.C Lahore (2000 MLD 1572).

3. Pir Riaz Muhammad Shah DAG assisted by counsel appearing for the complainant argued that applicant/accused misappropriated and embezzled huge amount of complainant and his family; that applicant/accused transferred some amount in the name of his wife, who is co-accused and absconder in this case. It is further submitted that applicant/accused being Manager of Dubai Islamic Bank through deceitful means had withdrawn and transferred amount of Rs. 48,927,200/- and USD 608,913/- from the accounts of complainant Fahad Butt through different banking instruments and vouchers by fake and forged signatures of the complainant; that expert has also opined that signatures of the complainant have been forged. Lastly, argued that applicant/accused might tamper with the evidence if enlarged on bail and prayed for dismissal of the bail application.

2025 Y L R 782

[Sindh (Larkana Bench)]

Before Shamsuddin Abbasi, J Mir SAIFULLAH MUGHERI---Applicant

Versus

Station House Officer, P.S HYDERI and others---Respondents

Crl. Misc. Appln. No. S-98 of 2024, decided on 16th May, 2024.

Criminal Procedure Code (V of 1898)---

----Ss.22-A(6)(i), 22-B, 154 & 200---Application for registration of criminal case by the applicant disclosing a cognizable offence of stealing of dowry articles of his wife by the proposed accused i.e. his brother and nephew---Refusal of police to record statement---Applicant instead of availing alternate remedy of complaint had filed an application under Ss.22-A & 22-B, Cr.P.C before Ex-officio Justice of Peace, which was dismissed on the grounds of inter se relation between the parties and conversion of a civil dispute over inherited property into criminal proceedings---Validity---High Court in view of prejudice of the police owing to earlier refusal to record statement of the applicant and dictum of the Supreme Court in similar circumstances observed that it would be appropriate for the applicant to institute a direct complaint before the court having jurisdiction, where he could lead entire evidence himself and his grievance could adequately be redressed---Application was dismissed.

Habibullah v. Political Assistant, Dera Ghazi Khan and others 2005 SCMR 951 Rel.

Applicant in Person.

Ameer Ali Sanjrani on behalf of proposed accused.

Khalil Ahmed Maitlo, Deputy Prosecutor General along with SIP Ayaz Hussain Chandio and SIP Ali Dost on behalf of SSP Larkana for Respondents.

2025 Y L R 785

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio, J

Qaim---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-46 of 2024, decided on 8th April, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Penal Code (XLV of 1860), Ss.324, 147, 148, 149, 114, 506 & 504---Attempt to commit qatl-i-amd, rioting, rioting armed with deadly weapons, unlawful assembly with common object, abettor present when offence is committed, criminal intimidation, intentional insult with intent to provoke breach of the peace---Bail, grant of---Further inquiry---Case of cross-version FIRs---During the occurrence three persons of accused party also sustained injuries but those injuries had not been disclosed in the FIR lodged by the complainant---Cross version FIRs were registered in response to the injuries sustained by the persons of the accused party---Nature of injuries was not relevant at the bail stage, especially in cases of cross-version where there was a conflict between the Medical Officer's opinion and the FIR---Existence of previous enmity was admitted---There was discrepancy in the FIR and Medico-Legal Certificate (MLC) as to kind of weapon used for causing alleged injury---Time, date and place of both the offences were the same---In such circumstances, it was for the Trial Court to determine as to who was the aggressor and who was aggressed upon, after recording evidence of the parties---Case against the accused persons called for further enquiry falling within the ambit of S.497(2), Cr.P.C.---Accused persons were granted bail, in circumstances.

Muhammad Ashraf v. The State and another 2021 MLD 166; Shoaib Mehmood Butt v. Iftikhar-ul-Haque and 3 others 1996 SCMR 1845; Fazal Muhammad v. Ali Ahmad and 3 others 1976 SCMR 391; Mst. Shaftqan v. Hashim and another 1972 SCMR 682 and Hamza Ali Hamza and others v. The State 2010 SCMR 1219 ref.

Saqib and others v. The State and others 2020 SCMR 677; Abdul Hameed v. Zahid Hussain alias Papu Chaman Patiwala and others 2011 SCMR 606 and Khalid Mehmood and another v. Muhammad Kashif Rasool and others 2013 SCMR 1415 rel.

Munir Hussain v. The State 2022 PCr.LJ Note 1110; Waseem and 2 others v. The State 2023 PCr.LJ Note 69; Muhammad Jaffar v. The State and another 2020 MLD 679; Naseemullah v. The State and another 2024 MLD 27; Ghulam Fareed v. The State 2012 YLR 2061; Masood Ahmed alias Muhammad Masood and another v. The State 2006 SCMR 933; Allah Bachayo alias Bachoo v. The State 2013 PCr.LJ 1387; Muhammad Nawaz v. The State and another 2018 PCr.LJ Note 95; Nasreen Bibi v. Farrukh Shahzad and another 2015 SCMR 825; Hamza Alam v. The State 2021 YLR 380; Muhammad Suleman alias Dagai v. The State and another 2017 PCr.LJ Note 27 distinguished.

Mir Pervez Akhtar Talpur for Applicant.

Shahzado Saleem, A.P.G., for the State.

Ghulam Mustafa Hingorjo for the Complainant.

Date of hearing: 8th April, 2024.

Order

Amjad Ali Bohio, J.---Applicant/accused Qaim, son of Waryam Junejo (hereinafter referred as "the applicant"), who was involved in case FIR No. 02/2024 registered at PS Mithi under sections 324, 147, 148, 149, 114, 506, 504 of the Pakistan Penal Code, was denied bail by the Court of the learned Additional Sessions Judge-I, Tharparkar alias Mithi, on 13-03-2024 in Criminal Bail Application No. 68/2024. Subsequently, the applicant has approached this Court seeking the same relief.

1. The allegations against the applicant, as per the First Information Report lodged by complainant Irshad Ali, son of Ameer Ali Junejo on 13-01-2024 at 8:00 PM, are that while he was walking to school at around 8:30 AM, upon reaching near the police post Aamrio, he noticed a white Suzuki vehicle with Registration No. KX-3798 parked on the northern side of the road. In front of the vehicle, the applicant along with his co-accused, armed with hatchets and lathies, were standing on the road. Upon instigation by co-accused Jani, another co-accused named Ali Hyder struck a sharp-sided hatchet blow to the complainant's head, while Karim Bux administered lathi blows to his knee. At this moment, Abdul Shakoor, son of Sohrab Junejo, who was coming on his motorcycle to perform duty, witnessed the incident and upon seeing the complainant injured, he returned and raised an alarm. This attracted Muhammad Saleh, son of Muhammad Ashraf, Muhammad Haroon, son of Amir Ali, Abdul Hafeez, son of Aamir Ali, Farooque Ali, son of Aamir Ali, and Muhammad Mudasar, son of Muhammad Haroon to the scene. The applicant then intentionally struck Muhammad Saleh on the head with a hatchet with the intention to cause him fatal harm. Other accused also caused injuries to the aforementioned witnesses at various parts of their bodies. This commotion attracted Muhammad Eidal, son of Veenhal, and Ali Ahmed, son of Aamir Ali, who intervened and rescued the injured party. The injured individuals were taken to PS Mithi and then transferred to Civil Hospital Mithi for treatment. Muhamamd Saleh was subsequently referred to Civil Hospital Hyderabad for further medical attention. Following his treatment, the complainant returned to the police station and lodged the instant FIR.

2. The learned counsel for the applicant argues that there is a counter version of the incident and that the applicant's party also sustained injuries in Crime No. 08/2024, which the complainant did not disclose in the above FIR. He further contends that the FIR mentions an old enmity between the parties, suggesting a potential false implication of the applicant due to this enmity. The counsel asserts that during the incident, three individuals from the applicant's side were injured by the complainant's party, raising questions about who was the aggressor and who was aggressed upon. Additionally, the FIR was lodged with a delay of approximately 111/2 hours without a satisfactory explanation. Notably, all co-accused in the same crime have been granted bail. Regarding the specific allegation against the applicant of causing a hatchet blow to Muhammad Saleh, it is noted that the medical certificate issued by the Medical Officer indicates that the injury sustained by Muhammad Saleh was caused by a hard and blunt substance, not sharp side of hatchet. This discrepancy suggests the need for further inquiry. Based on these arguments, the learned counsel contends that the applicant is entitled to the concession of bail in the circumstances surrounding it. In support of his contentions he has relied upon case law i.e. "Saqib and others v. The State and others" (2020 SCMR 677), "Muhammad Ashraf v. The State and another" (2021 MLD 166), "Abdul Hameed v. Zahid Hussain alias Papu Chainan Patiwala and others (2011 SCMR 606), "Khalid Mehmood and another v. Muhammad Kashif Rasool and others (2013 SCMR 1415), "Shoaib Mehmood Butt v. Iftikhar-ul-Haque and 3 others (1996 SCMR 1845), "Fazal Muhammad v. Ali Ahmad and 3 others (1976 SCMR 391), "Mst. Shaftqan v. Hashim and another (1972 SCMR 682) and "Hamza Ali Hamza and others v. The State (2010 SCMR 1219).

3. The learned State Counsel, assisted by the counsel for the complainant, has presented arguments against granting bail to the applicant. They have highlighted specific allegations against the applicant regarding the injuries inflicted on the complainant party. It is emphasized that the role attributed to the applicant differs from that of the co-accused, suggesting that the rule of consistency may not be applicable in, the applicant's case. Furthermore, they point out that all the Prosecution Witnesses, in their statements under Section 161 of the Criminal Procedure Code, have fully implicated the applicant in the alleged offence. The medical evidence is cited as supporting the eye-witness accounts. The alleged offence is stated to fall under the prohibitory clause of Section 497 of the Cr.P.C, indicating serious implications for bail consideration. They argue that sufficient material exists on record to establish a connection between the applicant and the alleged crime. The learned counsel contends that at the stage of considering bail, a deeper appreciation of the evidence is not permissible. Therefore, they strongly oppose the application for bail. In summary, the State Counsel and the counsel for the complainant argue against granting bail to the applicant based on the severity of the allegations, the consistency of witness statements, and the available medical evidence supporting the prosecution's case. They assert that the circumstances warrant denial of bail pending further proceedings. Counsel for the complainant relied upon case law viz "Munir Hussain v. The State (2022 PCr.LJ Note 1110), "Waseem and 2 others v. The State" (2023 PCr.LJ Note 69), "Muhammad Jaffar v. The State and another" (2020 MLD 679), "Naseemullah v. The State and another" (2024 MLD 27), "Ghulam Fareed v. The State" (2012 YLR 2061), Masood Ahmed alias Muhammad Masood and another v. The State (2006 SCMR 933), "Allah Bachayo alias Bachoo v. The State" (2013 PCr.LJ 1387), "Muhammad Nawaz v. The State and another" (2018 PCr.LJ Note 95), "Nasreen Bibi v. Farrukh Shahzad and another" (2015 SCMR 825), "Hamza Alam v. The State (2021 YLR 380), "Muhammad Suleman alias Dagai v. The State and another" (2017 PCr.LJ Note 27), photo copy of challan sheet of instant crime, photo copy of FIR No. 79/ 2021, FIR No. 09/ 2024 and FIR No. 50/ 2023 of P.S Mithi.

4. The record shows that the applicant, along with co-accused, is named in the FIR, with allegations of causing a straight hatchet blow to the head of Muhammad Saleh. However, upon examination of the injured Muhammad Saleh by the Medical Officer, the Medical Legal Certificate (MLC) opined the kind of weapon used for causing alleged injury with hard and blunt substance. The reliance in this regard was rightly placed by the counsel for the applicant on 2013 SCMR 1415 supra.

2025 Y L R 790

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Imtiaz Ali---Appellant

Versus

The State---Respondent

Criminal Appeal No. 613 of 2023, decided on 29th October, 2024.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the brother of complainant by inflicting knife blows---Complainant in his evidence had reiterated the story revealed by him in the FIR---After funeral and enquiry from his brother about the incident who narrated the story, complainant appeared at Police Station and registered FIR nominating appellant with the specific role of causing murder of his brother---Second witness/brother of complainant and deceased, who was with the deceased at the time of incident, had narrated the same story that he and deceased who were on a motorcycle were way laid by appellant, who had a dagger/knife in his hand---Appellant caused alteast two blows to the deceased on right side of his neck and right temple over the ear---As a result, brother of said witness fell down---Eye-witness of the incidence appeared and had reiterated the story narrated by the complainant and his brother in their evidence---Complainant and other witnesses had been subjected to a lengthy cross-examination, but no worthwhile contradiction had come on record to impair the said story---All the witnesses were consistent over the fact that appellant was armed with a knife/dagger and he caused two injuries to the deceased, one on right side of his neck called in medical terminology as supraclavicular fossa and the other on the right temporal region of the head---Seat of injury had been confirmed by the Medico-Legal Officer who conducted the postmortem of deceased---None of the witnesses had waivered or faltered while describing salient features of the case---Medical evidence was in complete synchronization with version of the eye-witnesses---There was not even a slight difference between the medical account and oral version as far as local and death of deceased by a sharp cutting weapon---Complainant and the eye-witnesses being lay men could not be expected to give or reveal an expert opinion about the exact time of death of the deceased at the hands of appellant---Therefore, even if witnesses said that the body had movements in the car did not mean that they were giving a false account or there was inconsistency between oral account and postmortem report of the deceased viz-a-viz duration between injury and death---Circumstances established that the prosecution case being clear, specific and based on evidence of the witnesses inspired confidence---Appeal against conviction was dismissed, in circumstances.

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

----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Recovery of weapon of offence---Reliance---Accused was charged for committing murder of the brother of complainant by inflicting knife blows---After arrest of the appellant, the crime weapon was recovered on his pointation from inside his house and that was found stained with blood---Crime weapon alongwith soil collected from the place of incident and clothes of deceased were sent to the laboratory for chemical examination, report of which had come in positive, which showed that all articles were soaked in human blood---Unimpeachable oral evidence of the witnesses was further supported not only by medical evidence but also by recovery of crime weapon from the appellant as well as positive chemical report denoting the crime weapon to be blood stained---Circumstances established that the prosecution case being clear, specific and based on evidence of the witnesses inspired confidence---Appeal against conviction was dismissed in circumstances.

Wazeer Hussain Khoso for Appellant.

Shoib Safdar, APG for the State.

Date of hearing: 21st October, 2024.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellant was convicted and sentenced by learned Additional Sessions Judge-I/Model Criminal Trial Court (MCTC) Thatta in S.C. No.367-A/2017 arising out of FIR No.106/2017 under section 302, 109 P.P.C. of P.S. Mirpur Sakro vide judgment dated 3010.2023 to suffer S.I. for life under section 302(b), P.P.C. and to pay an amount of Rs.300,000/- as a compensation under section 544-A Cr.P.C.

1. As per brief facts complainant Barad has alleged in the FIR that his family had a dispute over land with Yousif and others, who used to give him threats of murder. On the day of incident viz. 29.10.2017, his brother Nasrullah and Akhter Hussain had gone to Sakro city for purchasing some household articles on a motorcycle and he was present in house with his uncle Shahmir. At about 7.30 p.m. they heard cries, upon which they went outside of the house towards road, where they saw in the light that appellant Imtiaz was causing knife/ dagger blows to his brother Nasrullah aged about 17/18 years, whom his another brother Akhter Hussain was trying to rescue. They rushed to the spot and saw that his brother Nasrullah had sustained one injury on his neck and other injury over ear on temporal region and he was profusely bleeding. Appellant meanwhile made his escape good along with knife. The complainant party took their brother to Sakro Shaikh Zaid Hospital in one of the vehicles which was plying on the road where the Doctors pronounced him dead.

2. After postmortem report, the body was brought in the village. After burial the complainant sought firsthand information of the incident from his brother Akhter Hussain, who revealed that they were waylaid by the appellant, who caused knife blows to Nasrullah and on their cries, he and P.W Shahmir had come to rescue them. After hearing that, the complainant went to P.S. and lodged the FIR.

3. After registration of FIR, in the investigation appellant was arrested on 31.10.2017 and on 02.11.2027 from a hedge inside his house, the crime weapon i.e. knife was recovered on his pointation. After his arrest, recovery and completion of investigation, the challan was submitted in the court which started trial against him as well as co-accused namely Muhammad Yousif and Ahtesham-ul-Haq, who were alleged to have instigated appellant to commit the crime. Vide judgment dated 10.08.2021 appellant was convicted and sentenced under section 302(b), P.P.C. to suffer RI for life, whereas the co-accused were acquitted on benefit of doubt. In the appeal before this court, said judgment was set-aside and the case was remanded to the trial court to hold de novo trial after framing the charge afresh.

4. When the appellant pleaded not guilty to the formal charge, the prosecution examined in all six witnesses including complainant, I.O. MLO, et al. who have produced all the relevant documents which included FIR, postmortem report, chemical report in regard to recovered knife containing blood stains and relevant memos etc. On culmination of prosecution evidence, statement of appellant was recorded under section 342, Cr.P.C in which he has denied his role in the murder of deceased Nasrullah. He however declined to examine himself on oath or lead any evidence in defence claiming however that he has been falsely implicated in this case and has not committed the offence. The trial court however, did not agree with his stance and returned him guilty verdict through impugned judgment in the terms as stated above. Hence this appeal.

5. Learned defence counsel has contended that conduct of the witnesses is unnatural; they have contradicted each other on a number of points; appellant was alone whereas complainant party comprised four persons, neither they succeeded in catching him nor rescuing the deceased, hence the case is doubtful; that the evidence shows that handle of the knife was made of brass but the report of chemical examiner shows that handle of the knife examined was of iron; it is not clear as to how and in whose vehicle the body was taken to the hospital; the witnesses have deposed that when they kept the deceased in the vehicle, he was still moving, whereas postmortem report shows that deceased had died immediately which is sufficient to cast a doubt over the prosecution story; there is delay of 24 hours in registration of FIR; the prosecution is silent as to who had informed the police to come to the hospital; the postmortem report shows that body was brought by the police but complainant party has claimed that body was brought to the hospital by them on some unknown vehicle; the matching of blood group of the deceased with the blood over the knife has not been carried out as such it is unclear whether the blood over the knife belonged to the deceased or not.

6. On the other hand, learned APG has supported the impugned judgment. Counsel for complainant has chosen to remain absent.

7. I have considered submissions of the parties and perused material available on record. As a first witness, prosecution has examined complainant namely Barad. In his evidence, he has reiterated the story revealed by him in the FIR that he was present in his house along with his uncle namely Shahmir. His brother Nasrullah and Akhter Hussain had already left for Sakro city for purchasing some household articles. When at 7.30 pm, they heard cries for help coming from the road. They rushed to the spot and saw in the light of passing by vehicles and a torch that appellant Imtiaz Ali was hitting knife blows to his brother Nasrullah and his another brother Akhter Hussain was trying to rescue him. When they came close, they saw two injuries on person of their brother, one injury on right side of neck and other on his right temple above right ear. He was lying on the ground and blood was oozing from his injuries. Meanwhile the accused managed to escape along with knife/dagger on seeing them. According to his version, they stopped a passing by vehicle and took his brother to hospital but he died. He informed the police about the incident, the police reached the hospital and after due formalities, the postmortem of deceased was conducted. The dead body was brought by them to the village thereafter and after funeral and enquiry from his brother Akhtar Hussain about theincident who narrated the above story, he appeared at P.S and registered FIR nominating appellant with the specific role of causing murder of his brother Nasrullah.

8. As a second witness, the prosecution has examined P.W. Akhter Hussain. He was with the deceased at the time of incident. He has narrated the same story that he and deceased who were on a motorcycle were way laid by appellant Imtiaz, who had a dagger/knife in his hand. He caused alteast two blows to the deceased on right side of his neck and right temple over the ear. As a result, his brother fell down. He cried for help which attracted complainant and his uncle Shahmir who came running from the home. Meanwhile the appellant Imtiaz seeing them coming had escaped from the scene along with the knife/ dagger. They stopped a passing by vehicle and took injured to hospital but he had died. According to him, they informed the police about the incident, in response they reached there and completed certain formalities in writing. After postmortem the dead body of deceased was handed over to them and after that FIR was registered by his brother. He has also given a detail of ensuing investigation which consisted of handing over blood stained clothes of deceased to the police by the Doctor, inspection of place of incident by the police on 31.10.2017, collecting blood stained soil from the spot and sealing the same, preparing memo. of site inspection signed by him and P.W. Munir Ahmed, arrest of appellant Imtiaz in their presence on 31.10.2017, preparation of such memo. and recovery of crime weapon on 02.11.2017 from inside house of appellant on his pointation in their presence.

9. P.W. Shahmir has been examined as P.W.3. He is also the eye-witness and has reiterated at Ex.20, the story narrated by the complainant and P.W.2 Akhter Hussain in their evidence. Prosecution has also examined MLO Dr. Muhammad Iqbal as P.W.4. In his evidence, he has confirmed that deceased had sustained two stab wounds i.e. (i) 4cm x 1.5 cm extending into the right thoracic cavity, 3cm from the mid line, on the right supracl avicular fossa; and (ii) incised wound 4cm x 1.8cm into bone exposed on the right temporal region of the head. He has observed in his evidence that duration between injury and death was immediate.

10. Thereafter the prosecution has examined Tapedar namely Haji Muhammad as P.W.S. he has deposed that he has prepared a sketch/site plan of place of incident on the directions by Mukhtiarkar Mirpur Sakro, on the pointation of complainant. According to him, the place of incident was village Muhammad Usman Channa situated in Survey No.800. He has produced the site plan/sketch in his evidence.

11. The last witness examined by the prosecution is I.O. of the case. In his evidence, he has stated that he received information of murder of deceased, Nasrullah. After making relevant entry in daily diary, he went to Shaikh Zaid Hospital Sakro, inspected the dead body, prepared memo. of inspection of dead body, which was signed by the mashirs. He wrote a letter to M.S for postmortem, he prepared inquest report and lash chakas form, he received the last worn clothes of deceased in presence of mashirs. After postmortem the dead body was handed over to him under a receipt. He then handed over the body to the complainant Barad and obtained such a receipt from him. Next day, complainant came to P.S, where FIR was registered. He started investigation, in which he inspected place of incident on 31.10.2017 under relevant entry, and prepared memo. of place of incident with signature of relevant mashirs. He collected blood stained soil from the spot in their presence, prepared such memo. He recorded statements of witnesses under section 161 Cr.P.C during course of investigation. He wrote a letter to Mukhtiarkar for inspection of place of incident and preparing its sketch/site plan. He arrested appellant on 31.10.2027 from Sakro and Gharo road near Mehran Rice Mill under relevant entry and memo. of arrest and on his pointation recovered. crime weapon on 02.11.2017 from the hedge inside his house in presence of mashirs and prepared such memo. According to him, he then sent blood-stained soil, last worn clothes of deceased etc. to the office of chemical analyst for chemical analysis, the positive report of which he has produced in evidence. On culmination of investigation, he finally submitted the Challan.

12. Thereafter statement of appellant under section 342, Cr.P.C was recorded in which he has denied.the prosecution case simply without taking any defence.

13. With the assistance of the parties, I have gone through the evidence of the witnesses as stated above. The complainant and other witnesses have been subjected to a lengthy cross-examination, but no worthwhile contradiction has come on record to impair the above story. All the witnesses are consistent over the fact that appellant Imtiaz was armed with a knife/dagger and he caused two injuries to the deceased, one on right side of his neck called in medical terminology as supraclavicular fossa and the other on the right temporal region of the head. The seat of injury has been confirmed by the MLO who conducted the postmortem of deceased. None of the witnesses have waivered or faltered while describing salient features of the case, which as far as P.W. Shahmir and the complainant are concerned are from hearing cries of help coming from the road, their rushing to the spot and seeing the appellant Imtiaz causing knife blows to deceased Nasrullah. This story has been further cemented by P.W. Akhter Hussain, who was with the deceased at the time of the incident.

14. Learned defence counsel in the arguments stated that conduct of the witnesses was abnormal in that. they were four persons against one person but they could not rescue the deceased. It may be stated that when exactly the incident was happening, only P.W. Akhtar Hussain was with the deceased aged about 17/18 years and was sitting on the motorcycle. Appellant was armed with a knife. As soon as the deceased and P.W. Akhtar Hussain stopped the motorcycle at his instance, the appellant caused two knife blows to vital part of body of the deceased before they could put up any defence or even understand what was going to happen to them. Complainant and P.W Shahmir had seen the incident from a certain distance and before they came close to the spot, the appellant Imtiaz had already made his escape good. This is exactly what complainant and P.W. Shahmir have revealed in their depositions.

15. It is not the case of prosecution that at the spot all the four persons were present together when the appellant had launched an attack upon the deceased. But that it was only deceased with P.W. Akhter Hussain riding on a motorcycle when the incident happened all of sudden. The deceased and P.W Akhter Hussain, it appears from prosecution story, were unaware that appellant after flagging them down on the road would suddenly attack upon the deceased with the knife. They were not expecting any assault from the appellant which, it seems from the facts, took place all of sudden, the victims were caught off-guard and therefore failed to put up any defence. Complainant and P.W. Shahmir had reached the spot only after hearing cries and had seen the appellant committing the crime from afar of the place of incident. Seen in such scenario, argument of learned defence counsel that conduct of the witnesses is abnormal does not appear to be sustainable. There were not four persons at the relevant moment in the close proximity of the spot, but there were only two persons, who too were riding the motorcycle and were unbeknown to what was coming in their way i.e. the sudden assault by the appellant.

16. Next the medical evidence is in complete synchronization with version of the eye-witnesses. There is not a slight difference between the medical account and oral version as far as local and death of deceased by a sharp cutting weapon is concerned. Learned defence counsel in his arguments has contended that MLO has opined that death of the deceased was immediate after the injuries, whereas complainant side has stated that when they moved the body of the victim in the car, it had movements and he died on the way. I have read the evidence of witnesses, nowhere it is stated that the deceased was alive till the hospital. Moreso, the complainant and eye-witnesses are not the experts to pronounce the actual time of death of the deceased to have either happened in the hospital or at the spot. Before them, the deceased was critically injured by the appellant and was unconscious as far as their observation of him is concerned. Medical evidence shows that the deceased had not in fact gone unconscious but had died at the spot. But it could have only been confirmed by the MLO and not by the witnesses. The complainant and the eye-witnesses being lay men could not be expected to give or reveal an expert opinion about the exact time of death of the deceased at the hands of appellant. Therefore, even if they said that the body had movements in the car does not mean that they are giving a false account or there is inconsistency between oral account and postmortem report of the deceased viz-a-viz duration between injury and death. The medical evidence shows that the death was immediate and not instantaneous. Immediate death does not mean instant death but the death of the victim in a short while. The statement of the witnesses that the body had movements in the car is therefore not incongruous with the medical record. Aside from that, learned defence counsel has not pointed out to any material discrepancy or contradiction in the evidence of the witnesses to make the prosecution case doubtful.

17. After arrest of the appellant, the crime weapon was also recovered on his pointation from inside his house and that was found stained with blood. The crime weapon along with soil collected from the place of incident and clothes of deceased were sent to the lab for chemical examination. The report of which has come in positive, which shows that all articles were soaked in human blood. Unimpeachable oral evidence of the witnesses is further supported not only by medical evidence but also by recovery of crime weapon from the appellant as well as positive chemical report denoting the crime weapon to be blood stained.

2025 Y L R 801

[Sindh (Hyderabad Bench)]

Before Zulfiqar Ali Sangi, J

PC Niaz Ahmed and 3 others---Appellant

Versus

The State---Respondents

Criminal Appeal No. S-119 of 2018, decided on 24th September, 2024.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 337-F(iii), 114 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, ghayr-jaifah-mutalahimah, abettor present at the time of occurrence, common intention---Appreciation of evidence---Defective and vague framing of charge---Effect---Failure of justice---Trial Court while framing the charge did not mention the correct name of the deceased in the charge, facts in respect of motorcycles were missing from the charge; particulars in respect of causing injuries as mentioned in the FIR were also missing and a combined charge was framed for causing death and injuries to the deceased and many pieces evidence were not put to the accused while recording their statements under S.342, Cr.P.C---Charge must contain all material particulars as to time and place as well as the specific name of the alleged offence, the manner in which the offence is committed and the particulars of the accusation so as to allow the accused to explain the matter with which he is charged---On examination of the charge in the case in hand, it was clear that it was not framed correctly and was defective inasmuch it did not contain the correct name of the deceased---Besides, the role mentioned in the FIR against each accused was not mentioned in the charge---Accused persons as per FIR were alleged to have separately caused firearm injuries to the deceased and the victim but they were charged with combined accusation---Even the fact concerning motorcycles was missing from the charge---Such facts were misleading besides lacking in material particulars, which certainly vitiated the trial and had resulted in a miscarriage of justice---All the incriminating pieces of evidence available on record in the shape of examination-in-chief, cross-examination or re-examination of witnesses were required to be put to the accused if the same were against the accused while recording his statement under S.342, Cr.P.C---Statements of accused persons recorded under S.342, Cr.P.C revealed that 10 empties of SMG and two empties of 7 mm rifle were recovered from the place of incident and the deceased was examined by the doctor, postmortem was conducted and thereafter a report was issued by the Medico-Legal Officer---Record showed that all the said evidence was not put to accused while recording their statements under S.342, Cr.P.C---In such circumstances, the appeal was allowed and the case was remanded to the trial Court for de novo trial after framing a fresh charge containing full material particulars of the offence committed.

Mubeen alias Haji Muhammad Mubeen v. The State 2006 YLR 359 rel.

Noor-ul-Haq Qureshi for Appellants.

Salahuddin Panhwar for the Complainant.

Ms. Rameshan Oad, APG, for the State.

Date of hearing: 24th September, 2024.

Judgment

Zulfiqar Ali Sangi, J.---This appeal is directed against the judgment dated 26-4-2018, passed by Additional Sessions Judge-III, Dadu, whereby the appellants were convicted and sentenced under section 302(b) read with section 34, 324 read with section 337-F(iii), 34 and section 114 P.P.C. The appellants Niaz, Muhammad Bux and Faki Muhammad were sentenced to R.I. for life imprisonment and were directed to pay 50,000/ each to be paid to the Legal heirs of the deceased and in default thereof were further to undergo S.I. for six months. They were also sentenced to R.I. for five years and to pay Daman amounting to Rs. 30,000/ each to be paid to the injured Pir Bux and were further sentenced to R.I. for three years and to pay a fine of Rs. 500/ each. The appellant Gul Muhammad was sentenced to R.I for three years and to pay a fine of Rs.10,000/ and in default thereof further undergo S.I for three months.

1. At the outset, it has been pointed out by learned counsel for the appellants that the charge in the case was defective since it did not contain the correct name of the deceased, as it was Muhammad Hassan who was murdered and not Muhammad Hussain as mentioned in the charge. Besides, the role mentioned in the FIR against each accused is not mentioned in the charge. Even the facts in respect of motorcycles are missing from the charge. The particulars in respect of causing injuries as mentioned in the FIR are also missing and a combined charge was framed for causing death and injuries to the deceased and the injured Pir Bux. The next strong contention of learned counsel for the appellants is that though in the present case, 10 empties of SMG and two empties of 7 mm rifle were recovered from the place of the incident and the deceased was examined by the doctor, postmortem was conducted but all this evidence was not put to accused while recording their statement under section 342, Cr. P.C. to explain the same and it was relied upon for awarding conviction. Relying upon certain authorities of this Court, learned counsel submits that the charge violates section 222, Cr. P.C. and there appears violation of section 342, Cr.P.C. He, therefore, contends that the impugned judgment is not sustainable and liable to be set aside.

2. Learned Counsel for the Complainant and Learned A.P.G. have not rebutted the above facts. They have further pointed out that the judgment itself is defective having not been recorded following the law. Therefore, they frankly conceded that the judgment be set aside and the matter be remanded for re-trial.

3. I have heard learned counsel for the parties and have gone through the material available on record with their able assistance.

4. The charge is a precise formulation of the specific accusation made against a person who is entitled to know its nature at the early stage. The whole object of framing a charge is to enable the accused to concentrate his attention on the case that he has to meet. Therefore, the charge must contain all material particulars as to time, and place as well as the specific name of the alleged offence, the manner in which the offence was committed and the particulars of the accusation so as to allow the accused to explain the matter with which he is charged. The purpose behind giving such particulars is that the accused should prepare his case accordingly and may not be misled in preparing his defence. It needs no emphasis to state that a defective and misleading charge causes serious nreiudire to the accused and vitiates the whole trial. On examination of the charge in the case in hand, it clarified that it was not framed correctly and is defective inasmuch as that it did not contain the correct name of the deceased, as it was infact Muhammad Hassan who was murdered and not Muhammad Hussain. Besides, the role mentioned in the FIR against each accused is not mentioned in the charge. The accused persons as per FIR were alleged to have separately used firearm injuries to the deceased and the victim but they were charged with combined accusation. Even the fact concerning motorcycles is missing from the charge. It is misleading besides lacking in material particulars. It has certainly vitiated the trial and has resulted in a miscarriage of justice. The Division bench of this Court under the above circumstances in the case of Mubeen alias Haji Muhammad Mubeen v. The State (2006 YLR 359), has also remanded the case for de novo trial.

5. All the incriminating pieces of evidence available on record in the shape of examination-in-chief, cross-examination or re-examination of witnesses are required to be put to the accused if the same is against him while recording his statement under section 342 Cr.P.C in which the words used "For the purpose of enabling the accused to explain any circumstances appearing in evidence against him." which demonstrate that not only the circumstances appearing in the examination-in-chief are put to the accused but circumstances appearing in cross-examination or re-examination are also required to be put to the accused, if they are against him because the evidence means examination-in-chief, cross-examination and re-examination, as provided under Article 132 read with Articles 2(c) and 71 of Qanun-e-Shahadat Order, 1984. From the careful perusal of the statements of the appellants, under section 342 Cr.P.C. it reveals that 10 empties of SMG and two empties of 7 mm rifle were recovered from the place of incident and the deceased was examined by the doctor, postmortem was conducted and thereafter a report was issued by the MLO but all this evidence was not put to accused while recording their statements under section 342 Cr. P.C. to explain the same and it was relied upon by the trial court for awarding conviction. The Supreme Court of Pakistan vide order dated: 04-03-2021 in the case of Jan Muhammad v. The State and others (Crl. Appeal No. 77 of 2020) while remanding the case to the trial court has observed as under:-

"5. It has been observed by us with concern that none of the afore-mentioned pieces of evidence has been put to the appellant while examining him under section 342, Code of Criminal Procedure. It has been laid down many a time by this Court that a piece of evidence produced by the prosecution against an accused if not put to accused while examining him under section 342, Code of Criminal Procedure cannot be used against him. The rationale behind it is that the accused must know and then respond to the evidence brought against him by the prosecution. He (accused) must have firsthand knowledge of all the aspects of the prosecution case being brought against him. It appears that even the learned Judge in chambers of High Court while reappraising evidence available on record did not consider this aspect of the matter. Keeping in view the peculiar circumstances of the case, learned counsel for the appellant and learned Additional Prosecutor General, Sindh assisted by widow of deceased are in agreement that the matter needs to be remanded to the learned trial Court for re-recording statement of appellant under section 342, Code of Criminal Procedure while putting all pieces of prosecution evidence produced during trial to him, giving him an opportunity to know and respond to the same.

2025 Y L R 808

[Sindh]

Before Mohammad Karim Khan Agha, J

Agha Shariq Raza---Appellant

Versus

The State---Respondent

Jail Criminal Appeal No. 108 of 2023, decided on 14th October, 2024.

Penal Code (XLV of 1860)----

----Ss. 324, 334 & 336-B---Criminal Procedure Code (V of 1898), S. 353---Constitution of Pakistan, Art. 10-A---Attempt to commit qalt-i-amd, itlaf-i-udw, causing itlaf-salahiyyat-i-udw---Appreciation of evidence---Prosecution evidence to be recorded in the presence of accused---Fair trial---Scope---Accused was charged for throwing acid on complainant, injuring his eyes, face and hands---Accused/appellant was entitled as matter of right to be provided a pleader on state expense---Court should have appointed a pauper counsel for the accused to ensure presence of the counsel during the whole trial---Under Section 353, Cr.P.C, the evidence of all the witnesses must be recorded in the presence of the accused and his defence counsel---Idea behind this was that the appellant shall have fair trial as guaranteed by Art. 10-A of the Constitution---If the defence counsel had been present when the important witnesses were giving evidence in chief, he/she may have objected to certain questions being put and certain documents being exhibited, as such the fact that the defence counsel was not present during that process had caused prejudice to the appellant in his defence case and violated Art. 10-A of the Constitution---Impugned judgment was set aside and the case was remanded back to the trial Court for de novo trial.

Ms. Roop Mala Singh for Appellant.

Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh and Mumtaz Ali Shah, Assistant Prosecutor General for the State.

Date of hearing: 14th October, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Agha Shariq Raza was tried in the Court of IInd Additional District and Sessions Judge Karachi East in Session Case No.159/2019 arising out of FIR No.315/2018 under Sections 324/334/336-B P.P.C. registered at P.S. Soldier Bazar and after a full-fledged trial vide judgment dated 02.02.2023 he was convicted under section 265-H(2) Cr.P.C. for committing offence under sections 336-B and 324 P.P.C. and sentenced to .undergo R.I. for 14 years and to pay fine of Rs.onc million for the offence punishable under section 336-B P.P.C.. In case of his failure to pay the fine, he shall undergo S.I. for one year more. He was also convicted and sentenced to undergo R.I. for ten years and to pay Arsh as compensation for causing Itlaf-i-Udw of eyes, face and other body parts of the complainant equivalent to the value of one-half Diyat, as provided under Section 337-R P.P.C.. The value of Diyat in the year 2022-23 was Rs.43,18,524/- (Rupees Forty-Three lacs Eighteen Thousand Five Hundred and Twenty Four only) the half of which becomes Rs.21,59,262/- (Rupees of Twenty-One lacs, Fifty-Nine Thousand, Two Hundred and Sixty Two only) payable to the complainant/victim Mchdi Abbas son of Muhammad Kashif, failing which the convict is directed to be kept in jail in simple imprisonment till he pays the amount for the offence punishable under section 334 P.P.C.. He was also convicted and sentenced to suffer R.I. for ten years and to pay fine of Rs. 100,000/- (rupees one lac only) for the offence punishable under section 324 P.P.C.. In case of his failure to pay fine he is to suffer one year simple imprisonment. All the above sentences shall run concurrently. Accused is also entitled for benefit of Section 382-B Cr.P.C.

1. The brief facts of the prosecution case as narrated in the FIR are that complainant Mehdi Abbas son of Muhammad Kashif lodged the instant FIR at PS Soldier Bazar stating therein that he is Resident of Flat No. 402 Al-Janat residency Parsi Colony, Soldier Bazar and on 12/11/2018, his father-in-law namely Agha Shariq Raza son of Agha Ali Raza desired to solve the issues/dispute between him and his wife, who is also his mother-in-law namely Sarwat Agha daughter of Aftab Hussain Zaidi, for the reason to resolve the issues between him and his mother-in-law, his father-in-law met him at 08:45 in the morning, but on his continuous denial he insisted him to meet him in the evening after his office time only for 10 minutes. He after his office at 05:00 pm reached to his father-in-law's house, at that time there is no one in the house besides him and his father-in-law. In the meeting at Flat No. 2 Mohan Bhohan Buildina 1st floor, Soldier Bazar, his father-in-law requested him to resolve the issues between him and his mother-in-law as soon as possible, on which he replied this issue may take 4/5 days to resolve, on which he advised him to call his mother-in-law right now and invite her to the house. It was 05:15 at that time, on his denial he went to the kitchen and after some time ..... brought a glass which is filled with acid and throw on his face, resultantly affecting his eyes. According to doctors his vision has left just 25% to 30% and his face has badly burnt also his body as well as his hands. Complainant was shifted to Liaquat National Hospital for treatment, where he kept in ICU on first day, and two days in surgical ward. Due to the treatment he could't lodge a complainant timely; however, now he would likely to initiate legal proceeding against his father-in-law namely Agha Shariq Raza son of Agha Ali Raza for throwing acid on him. Hence, this FIR was registered.

2. After usual investigation the matter was challaned and the appellant was sent up to face trial. He pleaded not guilty and claimed trial.

3. In order to prove their cases, the prosecution examined 07 PWs and exhibited various items and other documents. The appellant recorded his statement under Section 342 Cr.P.C. whereby he denied all the allegations levelled against him. However, he did not give evidence on oath or call any witness in support of his defence.

4. After appreciating the evidence on record, the trial Court convicted and sentenced the appellant as set out earlier in this Judgment. Hence, the appellant has filed this appeal against his conviction.

5. At the very outset, learned counsel for the appellant and learned Addl. P.G. drew my attention to the fact that none of the seven PWs were examined or cross-examined in the presence of defence counsel, as such, the appellant has been prejudiced in his defence and this is a case of remand.

2025 Y L R 816

[Sindh]

Before Mohammad Karim Khan Agha, J

Zeeshan alias Shan---Applicant

Versus

The State---Respondent

Criminal Appeal No. 729 of 2019, decided on 19th November, 2024.

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

----S. 302(b)---Criminal Procedure Code (V of 1898), S. 342---Qatl-i-amd---Appreciation of evidence---Second statement of accused under S.342, Cr.P.C.---Legality---Scope---Accused was charged for committing murder of the son of complainant by inflicting churri blow---Prosecution case primarily rested on the evidence of three eye-witnesses who according to their evidence all saw the accused (appellant) stabbing the deceased to death---Question of the murder by the appellant in respect of evidence of eye-witnesses that they had seen the appellant stabbing the deceased was put to the appellant in his first S. 342 Cr.P.C statement---Thereafter, the prosecution moved an application to call two further witnesses being the MLO in respect of the medical evidence and the Judicial Magistrate in respect of S. 164 Cr.P.C statement which he recorded---Such application was allowed and the two said witnesses gave evidence---Thereafter the trial Court recorded a second further statement of accused under S. 342, Cr.P.C---All the parties were in agreement that after recording two new witnesses the first S. 342 Cr.P.C statement was of no legal effect and a second fresh S. 342 Cr.P.C statement had to be recorded---Record showed that the Trial Court had tried to record a further statement under S. 342, Cr.P.C apparently in continuation of the first S. 342 Cr.P.C statement of the appellant, however, there was no provision in law/concept which allowed a further S. 342 Cr.P.C statement to be made in continuation of the first S. 342 Cr.P.C which was limited to new witnesses which had been recorded and after the evidence of two witnesses had been recorded in between the two separate S. 342 Cr.P.C statements---S. 342 Cr.P.C statement must be recorded afresh, if it had not already been recorded, at the completion of the prosecution case which would lead to there being one final S. 342 Cr.P.C statement encompassing each piece of evidence which the prosecution intended to rely on to convict the accused---After recording the two additional witnesses pursuant to the prosecution application under S. 540, Cr.P.C the first S. 342 Cr.P.C statement fell away entirely and the S. 342 Cr.P.C statement of the appellant had to be recorded afresh putting to him any question which tended to implicate him in the offence and gave him the opportunity to explain each and every question before it could be relied upon to convict the appellant---Thus, only the second S. 342 Cr.P.C statement could be relied upon in the case---Question that was not put to the appellant when his S. 342 Cr.P.C statement was re-recorded went to the heart of the prosecution case i.e. that the appellant stabbed the deceased and thereby committed his murder, had to be put to the appellant for his explanation---Fact remained that it was not done meaning that such piece of eye-witness evidence stood excluded from consideration which led to the conclusion that the prosecution had failed to prove its case against the appellant beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----S. 342----Examination of accused---Incriminating piece of evidence not put to the accused---Effect---If a question is not put to an accused in his statement under S. 342, Cr.P.C., for explanation then the same cannot be relied upon in order to convict the accused.

Muhammad Nawaz v. The State 2016 SCMR 267 rel.

Ms. Fariyat Ishaque and Sathi M. Ishaque for Appellant.

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

Muhammad Ashraf Kazi and Irshad Ahmed Jatoi for the Complainant.

Date of hearing: 13th November, 2024.

Judgment

Mohammad Karim Khan Agha, J.---Appellant Zeeshan alias Shan was tried in the Court of Additional Sessions Judge-I/ Model Criminal Trial Court Karachi South in Sessions Case No.992 of 2013 in respect of Crime No. 148 of 2013 registered under Section 302 at P.S. Garden, Karachi and after a full-fledged trial vide judgment dated 10.10.2019 he was convicted under section 265-H(2) Cr.P.C. and sentenced to life imprisonment for committing an offence punishable under Section 302 P.P.C. Appellant was directed to pay compensation to the legal heirs of the deceased under section 544-A Cr.P.C. in the sum of Rs.3,00,000/- and in default, he was directed to suffer SI for six months more. The benefit of section 382-B Cr.P.C. was also extended to the appellant.

1. The brief facts of the case as per FIR lodged by the complainant are that he is retired from his service in police department as Sub-Inspector and his son namely Syed Afsar Shah aged about 34 years was serving as constable in Police Department and was posted at Security Zone-I, Karachi and was performing his duty in Sindh High Court, who left his house on 18.07.2013 after Iftar for his duty and at about 2100 hours his other son namely Syed Tayab Shah informed him that Afsar Shah had received injuries and he was taken to Civil Hospital Karachi. Thereafter sons of complainant and his relatives went to Civil Hospital and found that his son was in Operation Theater who succumbed to his injuries, during medical treatment. After some inquiry, complainant came to know that his son was sitting with his friends namely Waqar Ahmed and Ghulam Mustafa taking tea at Tea Cabin near Nishtar Road, Shoe Market, Nagori Milk Shop when at about 2030 hours all of sudden one person came and caused knife blows to his son on right side of his neck, who fell down, thereafter he was shifted to Civil Hospital by Waqar Ahmed, Ghulam Mustafa and Nadeem where his son succumbed to injuries. Complainant submitted that accused / appellant Zeeshan alias Shan caused fatal injuries to his son which resulted in his death. Hence aforesaid FIR was lodged.

2. After usual investigation the matter was challaned and the appellant was sent up to face trial. He pleaded not guilty and claimed trial.

3. In order to prove its case the prosecution examined 10-PWs and exhibited various items and other documents. The appellant recorded his statement under Section 342 Cr.P.C. whereby he claimed that he was innocent. However, he did not give evidence on oath or call any witness in support of his defence.

4. After appreciating the evidence on record, the learned trial Court convicted and sentenced the appellant as set out earlier and hence, the appellant has filed this appeal against his conviction and sentence.

5. After the entire evidence had been read out by learned counsel for the appellant an issue arose as to whether the section 342 Cr.P.C statement of the appellant was in accordance with the law and what the legal consequences might be.

6. The prosecution case primarily rests on the evidence of three eye-witnesses who according to their evidence all saw the accused stab the deceased to death.

7. With regard to the question of the murder of the deceased by the appellant in respect of the eye-witnesses who gave evidence that they saw the appellant stab the deceased the following question was put to the appellant in his first S.342 Cr.P.C statement;

Q.01. You have heard the prosecution evidence recorded in your presence during trial of the case and it has come in evidence that on 18.07.2013 at about 2030 hours at Nishtar Road, Shoe market near Nagori Milk Shop, Garden, Karachi, you attacked upon deceased Syed Afsar Shah knowingly and intentionally and caused Churri injuries to him with intent to kill him due to which he expired thereby youl have committed Qatl-i-Amd of the deceased punishable under section 302, P.P.C.. What have to say?

Ans. It is false allegation.

1. Thereafter the Prosecution moved an application to call two further PWs being the MLO in respect of the medical evidence and the judicial magistrate in respect of three Section 164, Cr.P.C statements which he recorded. Such application was allowed and the two aforesaid witnesses gave evidence.

2. Thereafter the trial court recorded a second "Further statement of accused under Section 342, Cr.P.C" where at Question one the following question was asked amongst other questions;

Q.01. Have you heard prosecution evidence recorded after allowing on application under section 540 Cr.P.C, moved by learned DDPP for the State, in your presence?

Ans. Yes Sir.

1. The question therefore arose as to the legal effect of the section 342 Cr.P.C statements.

2. All parties were in agreement (learned counsel for the applicant, learned counsel for the complainant and learned APG) that after recording two new PW's the first section 342 Cr.P.C statement was of no legal effect and a second fresh section 342 Cr.P.C statement had to be recorded.

3. I agree with the parties and note that the trial court has tried to record a further statement under section 342 Cr.P.C apparently in continuation of the first section 342 Cr.P.C statement of the appellant. There is however no provision in law/ concept which allows a further section 342 Cr.P.C statement to be made in continuation of the first section 342 Cr.P.C statement which is limited to new witnesses which have been recorded and after the evidence of two witnesses had been recorded in between the two separate section 342 Cr.P.C statements. The section 342 Cr.P.C statement must be recorded afresh, if it has not already been recorded, at the completion of the prosecution case which would lead to their being one final Section 342, Cr.P.C statement encompassing each piece of evidence which the prosecution intended to rely on to convict the accused. There is no provision in law which enables the court to record section 342 Cr.P.C statements in a piece meal manner say after 3 witnesses have been examined and then another section 342 Cr.P.C statement limited only to the latest section 342 Cr.P.C statement with the result that all the section 342 Cr.P.C statements are read together as one in continuation of each other. For ease of reference section 342 Cr.P.C is set out below;

"342. Power to examine the accused. (1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the court considers necessary, and shall, for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence."

1. Thus, the language of section 342 Cr.P.C is clear and unambiguous that the Section 342 Cr.P.C statement of the accused is to be recorded after the witnesses for the prosecution have been examined and before he is called on for his defence (and not in a piecemeal manner throughout the trial) although the court can ask him questions during the trial if it considers it necessary but all pieces of evidence against him must be put to him after the close of the prosecution case and before he starts his defence case.

2. I find that after recording the two additional PW's pursuant to the prosecutions application under 5.540 Cr.P.C the first section 342 Cr.P.C statement fell away entirely and the section 342 Cr.P.C statement of the appellant had to be recorded a fresh putting to him any question which tended to implicate him in the offence and give him the opportunity to explain each and every question before it could be relied upon to convict the appellant. Thu, only the second 5.342 Cr.P.C statement can be relied upon in this case.

3. It is well settled by now that if a question regarding a piece of evidence is not put to an appellant in his section 342 Cr.P.C statement for explanation that piece of evidence cannot be relied upon by the trial court in order to convict the accused. In this respect reliance is placed on the case of Muhammed Nawaz v. The State (2016 SCMR 267) which held as under in material part;

"There is yet another aspect of the case. While examining the appellants under section 342, Code of Criminal Procedure, the medical evidence was not put to them. It is well settled by now that a piece of evidence not put to an accused during his/her examination under section 342, Code of Criminal Procedure, could not be used against him/her for maintaining conviction and sentence."

(bold added)

1. Learned APG and learned counsel for the complainant have argued that even if a piece of evidence has not been put to the accused in his section 342 Cr.P.C statement it can still be used to convict him as the complainant should not be made to suffer on account of the negligence of the prosecution and that the case should be decided on the evidence on record. In this respect reliance was placed on the cases of The State/ANF v. Muhammad Arshad (2017 SCMR 283) and Ansar Mehmood v. Abdul Khaliq (2011 SCMR 713).

2. I find that I cannot agree with the above contention of the prosecution. The question that was not put to the appellant when his section 342 Cr.P.C statement was re recorded (their being no legal concept of a further section 342 Cr.P.C statement in continuation bf an earlier section 342 Cr.P.C statement) went to the heart of the prosecution case. i.e. that the appellant stabbed the deceased and thereby committed his murder had to be put to the appellant for his explanation. The fact that it was not done means that this piece of eye-witness evidence stands excluded from consideration which I find leads to the conclusion that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt.

2025 Y L R 827

[Sindh (Mirpurkhas Bench)]

Before Adnan-ul-Karim Memon, J

Roopchand alias Ramesh and another---Applicants

Versus

The State---Respondent

Criminal Bail Application No. S-129 of 2024, decided on 29th August, 2024.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 406 & 420---Sindh Prohibition of Interest on Private Loans Act (XXIII of 2023), S. 3(i)---Criminal breach of trust, cheating, private money lending---Ad-interim pre-arrest bail, recalling of---Prima facie case---Applicants were accused of engaging in the illegal business of lending money at interest---In this case the allegations against the applicants were severe and needed recording of evidence of the complainant, as such the applicants had failed to establish a prima facie case for judicial refuge and the accused had not demonstrated that his involvement in the subject crime was intended for malicious purpose such as harassment or humiliation---Sindh Prohibition of Interest on Private Loans Act, 2023, was enacted to address the issue of private money lending in Sindh and the Act prohibited all forms of private money lending and interest-based transactions in the Province---Said Act imposed a penalty of three to ten years imprisonment and a fine of Rs. one million for those who violated the law---In view of such legal position of the case, the Court could not endorse the point of view of the applicants to enlarge them on pre-arrest bail---Bail application was dismissed, in circumstances and the order for granting ad-interim pre-arrest bail was recalled.

Abdul Aziz Memon v. The State 2020 SCMR 313; Gulshan Ali Solangi v. The State 2020 SCMR 249; Rana Abdul Khaliq v. The State 2019 SCMR 1129; Muhammad Sadiq and others v. The State 2015 SCMR 1394 and Mukhtar Ahmed v. The State 2016 SCMR 2064 rel.

Mir Muhammad Nohri along with Applicants.

Dhani Bakhsh Mari, Assistant P.G along with I.O Muhammad Usman of PS Vijuto for the State.

Shankar Meghwar along with Complainant.

Date of hearing: 29th August, 2024.

Order

Adnan-ul-Karim Memon, J.---The applicants Roopchand alias Ramesh and Naresh Kumar are seeking pre-arrest bail in FIR No.12 of 2024 for the offense under section 406, 420 P.P.C. read with section 3(i) of the Sindh Prohibition of Interest on Private Loans Act, 2023 at P.S Vijuto. Their earlier bail plea was declined by the trial court vide order dated 22.06.2024.

1. It is contended by learned counsel for the applicants that the applicants are innocent and have been falsely implicated in the case by the complainant; that the FIR was filed with a delay of more than 3 months. He argued that the alleged offense is bailable and carries a maximum punishment of 10 years, which does not fall under the prohibited category of Section 497(1) of the Cr.PC. By contending so, he sought pre-arrest bail for the applicants on point of further inquiry and mala fide.

2. The learned Assistant P.G Sindh has opposed the bail application of the applicants.

3. I have heard the learned counsel for the parties and perused the record with their assistance.

4. The applicants, Roopchand alias Ramesh and Naresh Kumar have filed this bail application for pre-arrest bail in connection with FIR No. 12 of 2024, which was registered at Vijuto Police Station under sections 406, 420 of the Pakistan Penal Code (P.P.C.) and section 3(i) of the Sindh Prohibition of Interest on Private Loans Act, 2023.

5. The applicants are accused of engaging in the illegal business of lending money at interest. The complainant claims to have mortgaged 18 gold ornaments for a loan of Rs. 250,000 at a 5% interest rate. The applicants are also accused of intentionally lending money and collecting interest. This alleged assistance is deemed punishable to the same extent as the act of lending money illegally. The complainant requested the accused to settle the account and return the gold ornaments after paying the interest and principal amount. However, the accused refused to comply with this request.

6. It appears from the record that the complainant explicitly named both applicants in the FIR, accusing Naresh Kumar of lending money at interest and Roopchand of assisting in this illegal activity. Witness statements also implicated both applicants in the alleged offense. While there may be no documentary evidence due to the nature of the business, however, section 3(2) of the Sindh Prohibition of Interest on Private Loans Act, 2023 prohibits such activities and carries a severe punishment of up to 10 years in prison and a fine of up to one million rupees. This seriousness of the offense causes significant harm to society, and the need to take strict measures to eradicate it.

7. The defense argues that the trial court's rejection of their bail plea was based on a flawed analogy between the severity of the offense and the collection of sufficient evidence. However, the Supreme Court has emphasized that granting anticipatory bail in cognizable/non-bailable offenses is an extraordinary intervention that can interfere with the investigative process. While not explicitly provided for in the statute, anticipatory bail has been recognized as a remedy for the innocent and vulnerable to protect them from abuse of the legal process and humiliation. However, this remedy is not available in every criminal case, especially those with prima facie evidence supporting a cognizable/non-bailable offense. It is not intended to replace post-arrest bail. Further, the grant of pre-arrest bail is an exceptional remedy that can be granted in extraordinary circumstances to protect the liberty of innocent individuals who face false accusations with malicious intent. To obtain pre-arrest bail, the applicants must satisfy the Court of the conditions under Section 498 of the Cr.P.C.

8. In this case the allegations are severe against the applicants and need the recording of evidence of the complainant, as such the applicants have failed to establish a prima facie case for judicial refuge and the counsel has not demonstrated that involvement of the applicants in the subject crime is intended for malicious purposes such as harassment or humiliation.

2025 Y L R 854

[Sindh]

Before Irshad Ali Shah, J

ALI HASSAB BROHI---Appellant

Versus

The STATE and another---Respondents

Criminal Appeal No. 363 of 2019, decided on 16th August, 2023.

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

----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Delay of two days in lodging the FIR---First Information Report lodged after consultation---Effect---Accused was charged that he with rest of the culprits in furtherance of their common intention committed murder of the son of complainant by causing him fire shot injuries---Record showed that after referring the dead body to hospital for postmortem, complainant then lodged report of the incident formally with the police after two days of the incident---As per witness, the FIR of the incident was lodged with delay, after consultation with relatives---First Information Report of the incident lodged with delay and after due consultation with relatives could reasonably be judged with doubt---Investigating Officer, who conducted initial investigation of the case, on asking was fair enough to admit that inquest report contained a note that the deceased was killed by unknown culprits---Surprisingly, such inquest report was attested by the complainant himself which prima facie suggested that the name of the appellant was disclosed by the complainant in the FIR after due consultation by consuming two days---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---Material witnesses not examined---Accused was charged that he with rest of the culprits in furtherance of their common intention committed murder of the son of complainant by causing him fire shot injuries---Police Officer, who allegedly arrested the appellant, had not been examined by the prosecution---Non-examination of said Police Officer could not be lost sight of---Investigating Officer who had conducted further investigation of the case was also not examined by the prosecution---Non-examination of said Investigating Officer, as per another Police Officer, was for the reason that he was not able to speak on account of throat cancer---Nothing had been brought on record which may suggest that Investigating Officer was actually suffering from throat cancer and was unable to make a statement---Non- examination of said witness too could not be overlooked---Witness (besides the complainant) who had attested the inquest report, had not been examined by the prosecution for the reason that he had been won over by the appellant---Non-examination of said witness too could not be overlooked---In such circumstances, it would be hard to maintain conviction against the appellant on the basis of recovery of crime weapon, which was alleged by him to have been foisted upon him by the police---Appeal against conviction was allowed, in circumstances.

Muhammad Jamil v. Muhammad Akram and others 2009 SCMR 120 and Imran Ashraf and others v. The State 2001 SCMR 424 rel.

Habib-ur-Rehman Jiskani for Appellant.

Muhammad Anwar Mahar, DDPP for the State.

2025 Y L R 875

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon, J

Mst. FARHIHA AHMAREE---Applicant

Versus

STATION HOUSE OFFICER, and 2 others---Respondents

Criminal Miscellaneous No. S-652 of 2023, decided on 10th May, 2024.

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

----Ss. 22-A, 22-B & 154---Penal Code (XLV of 1860), S. 182---Registration of criminal case---Powers of Justice of Peace---Scope---Proceedings before the Justice of Peace, nature of---Refusal of the S.H.O. to register a criminal case on the ground of previous civil litigation and pendency of earlier registered criminal case---Validity---Rationale behind the conferring of powers upon the Justice of Peace was to enable the aggrieved person to approach the court of Justice of Peace for the redressal of his grievance i.e. non-registration of FIRs, excess of police, transfer of investigation to the court situated at District level or Session or at a particular Sessions Division---Main purpose of S. 22-A(6), Cr.P.C., was to create a forum at the doorstep of the people for their convenience---Primarily, proceedings before the Ex-Officio Justice of Peace are quasi-judicial and are not executive, administrative or ministerial to deal with the matters mechanically---Every case before Ex-Offcio Justice of Peace demands discretion and judicial observations after hearing the parties---Justice of Peace before passing any order for the registration of the FIR shall put the other party on notice against whom the registration of FIR is asked for---Even if there is no direction of the Court, the S.H.O. has no authority to refuse to record the statement of the complainant in the relevant register irrespective of its authenticity/correctness or falsity of such statement---Check against the lodging of false FIR is not the refusal to record such FIR, but the punishment of such informants under S. 182, P.P.C., etc. which should be, if enforced, a fair deterrent against misuse of the provisions of S. 154, Cr.P.C.---Criminal miscellaneous application was disposed of, in circumstances.

Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.

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

----Ss. 154, 156 & 561-A---Jurisdiction of High Court under S. 561-A, Cr.P.C.---Scope---High Court under S. 561-A, Cr.P.C., can only exercise jurisdiction in respect of orders or proceedings of a court---Provisions of S. 561-A, Cr.P.C., have no application viz executive or administrative orders or proceedings of any non-judicial forum or authority---Police have powers under Ss. 154 & 156, Cr.P.C. and a statutory right to investigate a cognizable offence without requiring the sanction of the Court.

Muhammad Ali Naper for Applicant.

Abdul Sattar Mahessar for Respondent.

Syed Sardar Ali Shah, Addl. Prosecutor General for the State.

2025 Y L R 909

[Sindh]

Before Muhammad Saleem Jessar, J

Mst. maryam---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-1829 of 2024, decided on 27th August, 2024.

Criminal Procedure Code (V of 1898)---

----S.497(2)---Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022], Ss.9(1)(3)(c) & 51(2)---Possession of narcotic substances---Bail, grant of---Further inquiry---At bail stage, the lesser of two punishments is to be taken into consideration, as the quantum of punishment can only be decided by the Trial Court after recording of evidence---Applicant had no prior criminal record and was a female, which might be a considering factor for grant of bail---Applicant was in jail since the day of her arrest---It is salutary principle of law that in cases where the offences carry lesser punishment which does not fall within the prohibitory clause of S.497, Cr.P.C, the grant of bail is a rule while its refusal is merely an exception---Every accused would be presumed to be blue eyed person of the law until and unless he/she is found guilty of alleged charge---Law cannot be stretched in favour of the prosecution particularly at bail stage---Case of the applicant was found to be within the scope of bail as contemplated by S.51(2) of the Act read with S.497(2), Cr.P.C and required further inquiry---Petition was allowed and accused was admitted to bail, in circumstances.

Shahzore v. The State 2006 YLR 3176 rel.

Imtiaz Ali Jatoi for Applicant.

Siraj Ali Khan Chandio, Addl. Prosecutor General, Sindh for the State.

Date of hearing: 27th August, 2024.

Order

Muhammad Saleem Jessar, J.---Through this bail application, applicant Mst. Maryam wife of Nouman Ali seeks her release on post arrest bail in Crime No.381 of 2024 of P.S SSHIA, Karachi, under Sections 9(i), 3-C of CNS, Act, 2022. The applicant had filed two post arrest bail application before the trial Court, but her request was turned down by way of orders dated 27.03.2024 and 08.06.2024, respectively. Hence, this application has been maintained.

1. The crux of the prosecution case as unfolded in the FIR are that on 23.03.2024 at about 09:00 a.m., applicant / accused was arrested by SIP Soomar Khan of P.S SSHIA, Karachi from Kachi Abadi Yousuf Sahab Khan Goth near Preshan Chowk Scheme-33, Karachi, on being found in possession of 1020 grams of charas, for which she was booked in the aforesaid FIR.

2. Heard arguments, record perused.

3. Section 9 (1) of the Act provides punishment with imprisonment up to fourteen years and not less than nine years for possessing, importing, or exporting and trafficking 'charas' in contravention of Sections 6, 7 and 8 of the Act for more than 1000 grams and up to 4999 grams in quantity. At the stage of bail, the lesser of two punishments is to be taken into consideration, as the quantum of punishment could only be decided by the trial Court after recording of evidence. Reference can be had from the case of Shahzore v. The State (2006 YLR 3176).

2025 Y L R 915

[Sindh (Hyderabad Bench)]

Before Yousuf Ali Sayeed, J

Haji and another---Applicants

Versus

The State---Respondent

Criminal Bail Application No. S-397 of 2024, decided on 21st October, 2024.

Criminal Procedure Code (V of 1898)---

----S.498---Penal Code (XLV of 1860), Ss.375, 376, 506(2) & 504---Rape, criminal intimidation, intentional insult with intent to provoke breach of peace---Pre-arrest bail---Allegation in the FIR can be categorized as having two limbs; first limb was of rape with 15 years old daughter of complainant alleged against applicant No.1, and second limb of threatening the complainant was alleged against Applicant No.2---Victim and complainant also swore affidavits that they had no objection to confirmation of the interim bail granted to the accused---Offence ascribed to applicant No.1 was non-bailable and non-compoundable, which fell within the scope of the prohibitory clause---Assertion of falsity of the FIR and mala fides underpinning its registration was shorn away from its standpoint by the forensic report that had since come to the fore---Allegations relating to applicant No.2, even if accepted, the offences under Ss.502(2) & 504, P.P.C are bailable and the possibility of him having been unnecessarily roped into the fray could not be ruled out---Interim bail granted to applicant No.1 stood recalled whereas that granted to applicant No.2 stood confirmed accordingly.

Abdul Aziz Solangi for Applicants.

Sana Memon, APG for the State.

Date of hearing: 21st October, 2024.

Order

Yousuf Ali Sayeed, J.--- Following the dismissal of their earlier bail Application by the learned Additional Sessions Judge-I Tando Muhammad Khan, the Applicants have approached this Court under section 498 Cr.P.C seeking prearrest bail in respect of FIR No. 36 of 2024, registered against them at Police Station Tando Ghulam Hyder on 02.03.2024 under Sections 376, 506(2), 504 P.P.C.

1. The substance of what has been alleged in the FIR as regards the Applicant No.1 is that he forced himself upon the minor daughter of the Complainant, aged about 15 years, so as to have intercourse with her, whereas from the standpoint of the Applicant No.2 it is stated that he was present at the time when the Complainant later approached the uncle of the Applicant No.1 in order to raise his grievance, but was threatened by both of them to remain quiet on that score, with the Applicant No.2 said to have been brandishing a hatchet. As such, for the time being, the averments set out in the FIR can be categorized as having two limbs, one branching towards the Applicant No.1 under Sections 375 and 376 P.P.C and the other towards the Applicant No.2 under Sections 506 and 504 P.P.C.

2. Proceeding with his submissions, learned counsel for the Applicant contended that the FIR set out a false case with mala fide intent. Furthermore, he submitted from the standpoint of the Applicant No.1 that the statement of the victim recorded by the magistrate reflected that a nikkah had been solemnized between them, and also placed reliance on the Affidavits submitted by the victim and her parents during the course of proceedings today to argue that the interim bail granted in the matter ought to be confirmed as they had no objection in that regard.

3. However, whilst opposing that plea, it was pointed out by the learned APG that the offence under Sections 376 P.P.C was non-compoundable and that the DNA Report forthcoming in the matter supported the allegation of intercourse as it reflected that the Applicant No.1 was the biological father of the victim's deceased premature child.

4. Having heard the submissions, it merits consideration that Sections 375 and 376 P.P.C provide inter alia that:

5. Rape. A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions,-

(i) against her will;

(ii) without her consent;

(iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt;

(iv) with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or

(v) with or without her consent when she is under sixteen years of age.

Explanation. Penetration is sufficient to constitute the sexual intercourse necessary to the offence of rape.

1. Punishment for rape. (1) Whoever commits rape shall be punished with death or imprisonment of either description for a term which shall not be less than ten years or more than twenty-five years and shall also be liable to fine.

(1A) …

(2) …

(3) Whoever commits rape of a minor or a person with mental or physical disability shall be punished with death or imprisonment for life and fine.

2025 Y L R 926

[Sindh]

Before Naimatullah Phulpoto and Irshad Ali Shah, JJ

Faisal alias Salman alias Lecture---Appellant

Versus

The State---Respondent

Special Anti-Terrorism Appeals Nos. 195, 196, 197, 198 of 2023, Special Criminal Anti-Terrorism Jail Appeal No. 219 of 2023 and Criminal Revision Application No. 46 of 2024, decided on 19th September, 2024.

Penal Code (XLV of 1860)---

----Ss. 302(b), 324, 186, 353, 393 & 34---Criminal Procedure Code (V of 1898), Ss. 367 & 537---Anti-Terrorism Act (XXVII of 1997), S. 7---Qatl-i-amd, attempt to commit qatl-i-amd, obstructing a public servant in the performance of their duties, assaulting or using criminal force against a public servant while they are performing their duties, attempt to commit robbery, common intention, act of terrorism---Appreciation of evidence---Contents of judgment---Rewriting of judgment---Trial Court awarded punishment of simple imprisonment for 14 years to the appellants, which was quite inappropriate---It was not mentioned in impugned judgment that each of the appellant had been convicted under S.302, P.P.C---In last paragraph of the judgment, appellants had been convicted for causing death of deceased Police Constable under S.7(a) of Anti-Terrorism Act, 1997, and again it was simple imprisonment for 10 years; this too was against the command of law---Impugned judgment passed by Trial Court in perfunctory and slipshod manner and it was violative of mandatory provisions of S.367(2), Cr.P.C, which could not be cured under the provision of S.537 Cr.P.C---Consequently, appeal was allowed and cases were remanded to the Trial Court for re-writing of the judgment.

Muhammad Farooq for Appellants.

Abrar Ali, Additional Prosecutor General Sindh for the State.

Date of hearing: 19th September, 2024.

Judgment

Naimatullah Phulpoto, J.---Appellants Muzamil alias Mitho, Faisal alias Salman alias Lecture, Sheeraz Ali alias CG, Shahmeer alias Shamir Ali alias Nakri were tried by learned Judge, ATC-XVI, Karachi in Old Special Case No. 42/2022, New Special Case No. 27/2022 (FIR No.688/2021 for offences punishable under sections 302, 186, 324, 353, 393, 34 P.P.C read with Section 7 of ATA 1997 registered at P.S Landhi), Old Special Case No. 175/2022, New Special Case No.115/2022 (FIR No. 689/2021 for offence punishable under Section 23(1)(a) of Sindh Arms Act 2013 registered at P.S Landhi), Old Special Case No. 206/2022, New Special Case No. 187/2022 (FIR No. 17/2022 for offences punishable under Sections 353, 324, 427, 34 P.P.C registered at P.S CTD), Old Special Case No. 206-A/2022, New Special Case No. 188/2022 (FIR No. 18/2022 for offence punishable under Section 23(1)(a) of Sindh Arms Act 2013 registered at P.S CTD), Old Special Case No. 206-B/2022, New Special Case No. 189/2022 (FIR No. 19/2022 for offence punishable under section 23(1)(a) of Sindh Arms Act 2013 registered at P.S CTD). After regular trial, vide judgment dated 31.10.2023, the appellants were convicted and sentenced as under:

"a. For offence of Qatl-i-Amd of the deceased PC Hamza Khan, punishable under Section 302 read with 34 P.P.C the accused 1. Muzamil alias Mitho son of Mushtaque Rajput, 2. Faisal alias Salman alias Lecture son of Pervaiz Ahmed/Ali, 3. Sheeraz Ali alias CG son of Shafique and 4. Shahmeer alias Shamir Ali alias Nakri son of Muhammad Ali are sentenced to simple imprisonment for fourteen years with fine of Rs.200,000/- and in default of such payment the accused persons shall undergo SI for six months more.

b. For causing death of the deceased PC Hamza Khan by firing, punishable under Section 7(a) of the Anti-Terrorism Act 1997, the accused 1. Muzamil alias Mitho son of Mushtaque Rajput, 2. Faisal alias Salman alias Lecture son of Pervaiz Ahmed/Ali, 3. Sheeraz Ali alias CG son of Shafique and 4. Shahmeer alias Shamir Ali alias Nakri son of Muhammad Ali are sentenced to simple imprisonment for ten years with fine of Rs.200,000/- and in default of such payment the accused persons shall undergo SI for six months more.

c. The accused 1. Muzamil alias Mitho son of Mushtaque Rajput, 2. Faisal alias Salman alias Lecture son of Pervaiz Ahmed/Ali, 3. Sheeraz Ali alias CG son of Shafique and 4. Shahmeer alias Shamir Ali alias Nakri son of Muhammad Ali are also directed to pay an amount of Rs.200,000/- (two lacs) by each accused to the legal heirs as compensation as provided under Section 544-A Cr.P.C and in default of such payment the accused persons shall undergo SI for six months.

d. Accused 1.Faisal alias Salman alias Lecture son of Pervaiz Ahmed/Ali, 2. Sheeraz Ali alias CG son of Shafique are also hereby convicted for the offence under section 23(1)(a) SAA and sentence them to simple imprisonment for seven years with fine of Rs.10,000/- and in default of such payment the accused shall undergo SI for six months more.

e. For the act of terrorism committed the accused 1. Muzamil alias Mitho son of Mushtaque Rajput, 2. Faisal alias Salman alias Lecture son of Pervaiz Ahmed/Ali, 3. Sheeraz Ali alias CG son of Shafique and 4. Shahmeer alias Shamir Ali alias Nakri son of Muhammad Ali punishable under section 7(1)(h) of Anti-Terrorism Act 1997, the accused is hereby also sentenced to undergo RI for (10) ten years and to pay fine of Rs.50,000/- (fifty thousand).

f. The property of the accused are directed to be forfeited as required under Section 7(2) of Anti-Terrorism Act, 1997."

All the sentences were directed to run concurrent. Appellants were also extended benefit of Section 382(b) Cr.P.C.

1. Appellants being aggrieved and dissatisfied with the judgment passed by trial Court preferred the appeals. However, Criminal Revision Application No.46 of 2024 is filed by the State through P.G Sindh against respondents 1. Muzamil alias Mitho son of Mushtaque Rajput, 2. Faisal alias Salman alias Lecture son of Pervaiz Ahmed/Ali, 3. Sheeraz Ali alias CG son of Shafique and 4. Shahmeer alias Shamir Ali alias Nakri son of Muhammad Ali for enhancement of sentence.

2. At the very outset, Mr. Abrar Ali learned Addl. P.G pointed out that trial Court has committed multiple illegalities while passing the impugned judgment. It is submitted that appellants have been convicted for commission of Qatl-i-Amd of deceased PC Hamza under Section 302 read with 34 P.P.C and have been sentenced to simple imprisonment for fourteen years without specifying the penal clauses i.e. (a), (b) or (c) of Section 302 P.P.C, as such, sentence of 14 years S.I is inadequate and illegal. By contending so, he sought for remand of the case to learned trial Court for re-writing the judgment in accordance with law.

3. Mr. Muhammad Farooq advocate for the appellants conceded to the legal position. However, prayed that case after remand may be heard by another Judge because Mr. Abdullah Channah Judge, ATC-XVI, Karachi has already formed his opinion.

4. Heard arguments and perused record.

5. In order to appreciate the contentions raised by learned counsel for the parties, we have examined the impugned judgment minutely and came to the conclusion that in the present case, command of law escaped notice of the trial Judge and awarded punishment of simple imprisonment for 14 years to the appellants, which is quite inappropriate.

6. Section 302 P.P.C provides the punishments as under;

7. Punishment of qatl-i-amd: Whoever commits qatl-i-amd shall, subject to the provisions of this Chapter be:

(a) punished with death as qisas;

(b) punished with death or imprisonment for life as ta'zir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in Section 304 is not available; or

(c) punished with imprisonment of either description for a term which may extend to twenty-five years, where according to the injunctions of Islam the punishment of qisas is not applicable.

Provided that nothing in this clause shall apply to the offence of qatl-i-amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of (a) and (b), as the case may be.

There is one more illegality. There is no mention in impugned judgment that each of the appellant has been convicted under Section 302 P.P.C.

1. In last paragraph of the judgment, appellants have been convicted for causing death of deceased PC Hamza Khan under Section 7(a) of ATA 1997, againt it is simple imprisonment for 10 years with fine of Rs.200,000/- it too is against the command of law. Punishment provided under Section 7(a) of ATA 1997 is as under:

2025 Y L R 938

[Sindh (Larkana Bench))]

Before Muhammad Saleem Jessar, J

Asghar Ali Chandio---Applicant

Versus

Additional Sessions Judge-II, Mehar and others---Respondents

Criminal Revision Application No. S-82 of 2023, decided on 8th March, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 265-K, 435, 439 & 561-A---Provision(s) of S. 265-K, Cr.P.C---Scope---Extra-ordinary circumstances---Application under S. 265-K of the Criminal Procedure Code, 1898, filed by the petitioner/accused was declined by the Trial Court; he assailed said dismissal order before the High Court---Record showed that Trial Court had already taken cognizance of the matter---Furthermore, as per progress report furnished by the Trial Court the "charge" in the case had also been framed on 28.11.2023 and the case was fixed for recording evidence, therefore, it would be appropriate that the case may proceed and evidence may be recorded---Criminal case should be allowed to be disposed of on merits after recording of prosecution evidence, whereas provisions of Ss.249-A, 265-K and 561-A, Cr.P.C., should not normally be pressed into action for deciding the fate of a criminal case---Case was pending in the Court of competent jurisdiction and it was for the Trial Court to decide the case after evaluating and appraising evidence and the prosecution should be given a chance to adduce its evidence---Frequent exercise of inherit jurisdiction contemplated under S.561-A, Cr.P.C., was deprecated by the Supreme Court---Application, was dismissed accordingly.

A. Habib Ahmed v. M.K.G Scott Christian and 5 others PLD 1992 SC 353 rel.

Ashique Hussain Kalhoro for Applicant.

Respondent No. 2 Present in person.

Ali Anwar Kandhro, Additional Prosecutor General for the State.

Date of hearing: 8th March, 2024.

Order

Muhammad Saleem Jessar, J.---The applicant has challenged the order dated 14.11.2023 passed by the learned Additional Sessions Judge-II, Mehar, in Sessions Case No.149 of 2023, on the application filed by applicant/ accused Asghar Ali invoking provisions of Section 265-K Cr.P.C for his acquittal. It would be conducive and illustrative to reproduce the operative part thereof, hereunder:

"It appears from the record that the cognizance of the offence punishable under Section 3 of the Illegal Dispossession Act was taken agaisnt the accused in respect of the property in question after completion of codal formalities vide order dated 27.02.2023. The charge has not yet been framed against the accused. while the contention so raised by the learned counsel for accused in support of application in hands cannot be discussed and determined at this stage until and unless the evidence of the complainant side is to be recorded. Lest any finding/ observation may cause prejudice to either of the parties. It is therefore, the application in hands stand dismissed. Let the case be proceeded as per law."

1. Learned counsel submits that trial Court has not appreciated the record in its proper perspective and the fact that complainant is not the exclusive owner of the property in question. He further added that the applicant/ accused has not occupied the property in question. Learned counsel further argued that if the evidence is recorded, it will end in acquittal of the applicant/ accused; that trial of the applicant shall be abuse of process of law. He further argued that learned trial Court has not considered the case in its true perspective and on the basis of surmises and conjectures the application under section 265-K Cr.P.C. was rejected without recording cogent reasons. Per learned counsel, in these circumstances, the impugned order merits interference by this Court and warrant to be set aside and application under Section 265-K Cr.P.C is liable to be allowed.

2. On the other hand Mr. Ali Anwar Kandhro learned Additional Prosecutor General opposed the application by contending that the trial Court has already taken cognizance of the matter, therefore, it would be appropriate that the case may proceed and evidence may be recorded. He further argued that it is settled law

that the cases may be tried and prosecution may be given a chance to adduce evidence and after completion of evidence the trial Court should decide fate of the case after appreciating evidence available on record.

1. Having heard learned counsel for applicant and learned Addl. P.G; and with their assistance also perused the material available on record.

2. A perusal of the impugned order demonstrates that the same has been vested on cogent grounds, disclosed and discussed therein. The learned counsel for applicant has remained unable to demonstrate any infirmity with respect to the impugned order.

2025 Y L R 962

[Sindh (Hyderabad Bench)]

Before Muhammad Karim Khan Agha, J

Irfan Ali ---Appellants

Versus

The State ---Respondent

Criminal Appeal No. S-249 and Criminal Revision Application No. S-179 of 2017, decided on 10th May, 2024.

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

----Ss. 324, 337-H(2), 337-F(iii), 337-F(vi) & 337-L(2)---Attempt to commit qatl-i-amd, rash and negligent act to endanger human life or personal safety of others, ghayr-jaifah-hashimah, munaqqilah, causing hurt---Appreciation of evidence---Delay of 16 hours in lodging the FIR plausibly explained---Prosecution case was that the appellant/accused along with his co-accused made firing on the brother of complainant due to which he sustained firearm injuries---Admittedly the FIR was lodged after a delay of 16 hours of the incident---However, based on the particular facts and circumstances of the case it was found that said delay had been fully explained as initially injured had to be taken to hospital for treatment which was about 25 km away and would have taken considerable time to reach where he remained overnight receiving treatment---Once injured was out of danger the complainant went to lodge the FIR at the Police Station which was again at a istance of 25 km and as such the delay was not fatal to the prosecution case---Appellant was named in the FIR with the specific role of making direct fire on injured which led to him sustaining firearm injuries---Circumstances established that the prosecution had proved its case against the appellant beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

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

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

----Ss. 324, 337-H(2), 337-F(iii), 337-F(vi) & 337-L(2)---Attempt to commit qatl-i-amd, rash and negligent act to endanger human life or personal safety of others, ghayr-jaifah-hashimah, munaqqilah, causing hurt---Appreciation of evidence---Ocular account supported by medical evidence---Prosecution case was that the appellant/accused along with his co-accused made firing on the brother of complainant, due to which, he sustained firearm injuries---Ocular account of the incident had been furnished by complainant and injured witness---Complainant was not a chance witness as he was going with his injured brother to sort out their dispute with accused with a local Nekmard when the incident took place---No material improvements were found in his FIR from his evidence---Complainant was not dented during a lengthy cross-examination and he gave his evidence in a natural manner and thus his evidence was trustworthy, reliable and confidence inspiring---Eye-witness was the brother of the complainant and was fired upon by the accused---Evidence of injured corroborated the evidence of the complainant in all material respects---Injured was named as the injured eye-witness in the FIR---Injured witness stated in his evidence that he was fired upon from about 4 feet which resulted in blackening on one of his firearm wounds---Injured witness stated that he was shot at on his arms, shoulder and stomach which accorded with the medical evidence---Evidence of said witness was not materially improved on from his S.161 Cr.P.C statement---Though S.161 Cr.P.C statement of injured witness was recorded 13 days after the incident however since he was named in the promptly lodged FIR and according to his evidence he was recuperating in the hospital from his 4 bullet injuries---Evidence of an injured eye-witness was deemed more reliable than usual eye-witnesses---Injured witness was not dented during cross-examination and he also knew the accused from before---Present incident was a daylight incident and witness was injured by the accused which injury was supported by the medical evidence and his evidence was corroborated by the complainant, thus weight could be given to his evidence---Circumstances established that the prosecution had proved its case against the appellant beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Hashim Qasim and another v. The State 2017 SCMR 986; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572; Saindad and 2 others v. The State 1972 SCMR 74; Mohibullah alias Gandhgeer and others v. The State 2024 MLD 525; Qutub Khan v. The State and another 2024 PCr.LJ 516; Qasim Shahzad and another v. The State and others 2023 SCMR 117; Sajid Mehmood v. The State 2022 SCMR 1882; Liaqat v. The State 2006 SCMR 33 and Sheqab Muhammad v. The State and others 2020 SCMR 1486 ref.

Aquil v. State 2023 SCMR 831 and Muhammad Waris v. The State 2008 SCMR 784 rel.

(c) Criminal trial---

----Conviction---Sole witness---Accused can be convicted on the evidence of a sole witness provided that his evidence is found to be to trustworthy, reliable and confidence inspiring.

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 Shazad v. State 2023 SCMR 117 rel.

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

----Ss. 324, 337-H(2), 337-F(iii), 337-F(vi) & 337-L(2)---Attempt to commit qatl-i-amd, rash and negligent act to endanger human life or personal safety of others, ghayr-jaifah-hashimah, munaqqilah, causing hurt---Appreciation of evidence---Substitution---False implication of accused unlikely---Prosecution case was that the appellant/accused along with his co-accused made firing on the brother of complainant due to which, he sustained firearm injuries---As per record, it did not appeal to logic, commonsense or reason that one brother would let the real person who seriously injured his other real brother get away scot free and falsely implicate an innocent person by way of substitution---Circumstances established that the prosecution had proved its case against the appellant beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Muhammad Ashraf v. State 2021 SCMR 758 rel.

(e) Criminal trial---

----Medical evidence---Scope---If the medical evidence is in conflict with the ocular evidence, the ocular evidence would take precedence over the medical evidence, if it is found to be trust worthy, reliable and confidence inspiring.

Imran Mehmood v. The State and another 2023 SCMR 795 rel.

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

----Ss. 324, 337-H(2), 337-F(iii), 337-F(vi) & 337-L(2)---Attempt to commit qatl-i-amd, rash and negligent act to endanger human life or personal safety of others, ghayr-jaifah-hashimah, munaqqilah, causing hurt---Appreciation of evidence---Police witnesses, evidence of---Scope---Prosecution case was that the appellant/accused along with his co-accused made firing on the brother of complainant due to which he sustained firearm injuries---Record showed that there was no ill will or enmity between the police and the appellant and as such the police had no reason to falsely implicate the appellant in this case, by planting the empties at the crime scene---Under such circumstances, the evidence of police witnesses was as good as any other witness---Evidence of the Investigating Officer was not dented during cross examination---Circumstances established that the prosecution had proved its case against the appellant beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Mushtaq Ahmed v. The State 2020 SCMR 474 rel.

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

----Ss. 324, 337-H(2), 337-F(iii), 337-F(vi) & 337-L(2)---Attempt to commit qatl-i-amd, rash and negligent act to endanger human life or personal safety of others, ghayr-jaifah-hashimah, munaqqilah, causing hurt---Appreciation of evidence---Minor contradictions in evidence of witnesses---Inconsequential---Prosecution case was that the appellant/accused along with his co-accused made firing on the brother of complainant, due to which, he sustained firearm injuries---Record showed that all the witnesses were consistent in their evidence---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 appellant---Evidence of the witnesses provided a believable corroborated unbroken chain of events from the agricultural dispute between the appellant and injured to the appellant shooting injured and seriously injuring him to the recovery of empties at the crime scene to the appellant initially absconding before being arrested---Circumstances established that the prosecution had proved its case against the appellant beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Zakir Khan v. State 1995 SCMR 1793; Khadim Hussain v. The State PLD 2010 SC 669 and Maskeen Ullah and another v. The State and another 2023 SCMR 1568 rel.

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

----Ss. 324, 337-H(2), 337-F(iii), 337-F(vi) & 337-L(2)---Attempt to commit qatl-i-amd, rash and negligent act to endanger human life or personal safety of others, ghayr-jaifah-hashimah, munaqqilah, causing hurt---Appreciation of evidence---Motive proved---Prosecution case was that the appellant/accused along with his co-accused made firing on the brother of complainant due to which he sustained firearm injuries---Motive for the attack on injured by the appellant had come on record through the FIR and evidence of witness---Appellant had a dispute with injured over agricultural land which was also the subject of civil litigation which the appellant wanted the injured to withdraw---Circumstances established that the prosecution had proved its case against the appellant beyond any shadow of doubt---Appeal against conviction was dismissed, in circumstances.

Aijaz Shaikh along with Kamran Baig for Appellant.

Sameeullah Rind along with Bilal Mustafa for the Complainant.

Shahid Ahmed Shaikh, Additional Prosecutor General Sindh for the State.

Date of hearing: 6th May, 2024.

Judgment

Muhammad Karim Khan Agha, J..---Appellant Irfan Ali has challenged the Judgment dated 13.10.2017 passed by the learned Sessions Judge Shaheed Benazirabad in Sessions Case No.360 of 2014 (Re: The State v. Irfan Ali), outcome of Crime No.17 of 2014 registered at P.S Taluka Nawabshah under Sections 324, 337-H(ii), 337-F(iii), 337-F(vi) and 337-L(ii) P.P.C, whereby he has been convicted and sentenced as follows:

(i) The accused Irfan Rind is sentenced for (05) years R.l and fine of Rs.50,000/- (fifty thousand) for committing offence under section 324 P.P.C. In default of fine payment he shall suffer 06 months more S.I.

(ii) The accused Irfan Rind is sentenced for (03) years R.I for committing offence under section 337-F(iii) P.P.C. He is also directed to pay Rs.50,000/- (fifty thousand) as Daman to injured Fateh Muhammad. In case of non payment of Daman he will suffer S.I till Daman is paid.

(iii) The accused Irfan Rind is sentenced for (05) years R.I for committing offence under section 337-F(vi) P.P.C. He is also directed to pay Rs.1,00,000/- (one lac) as Daman to injured Fateh Muhammad. In case of default in payment Daman he will suffer S.l till Daman is paid.

However, all the above sentences have been ordered to run concurrently and benefit of Section 382-B Cr.P.C has also been extended to appellant; whereas injured Fateh Muhammad Rind and complainant Ali Asghar have also preferred the captioned revision application for enhancement of aforesaid sentences.

1. The brief facts of the case are that on 08.02.2014 at about 1000 hours complainant Ali Asghar appeared at P.S Nawabshah and lodged the subject FIR by alleging that there is dispute between them and Irfan Rind as such Irfan Rind used to tell his brother Fateh Muhammad to withdraw from such case and land also otherwise he will kill him; that yesterday at evening Raees Muhammad Ayoub Rind called them, hence his brother Fateh Muhammad Rind aged about 50 years and cousins Ali Khan son of Muhammad Saleh Rind took their motorcycles and were going towards Raees Muhammad Rind; that Fateh Muhammad was going in front of them, when at about 6pm they reached at Sijawal Shakh road near Government Tubewell, they saw three persons standing at road each one namely Irfan Ali son of Abdul Haleem Rind having Pistol in his hand and two unknown persons having Rifle and Kalashnikov in their hands and a 125 black coloured motorcycle was also standing beside them, who stopped Fateh Muhammad and meanwhile Irfan Ali made straight fires at Fateh Muhammad with intention to commit his murder, hence Fateh Muhammad feil down from his motorcycle; that they made hakals to accused persons who issued murderous threats to them meanwhile his cousin Gul Muhammad son of Muhammad Idrees also reached there on his motorcycle, who beseeched the accused with the name of Almighty Allah on which Irfan Rind told Fateh Muhammad that today he has been saved but in future he will not leave him then accused persons went away on their motorcycle by making aerial firing, then they saw that Fateh Muhammad had firearm injuries on both arms, shoulder and right side of flank; they immediately shifted him to Civil Hospital Nawabshah for treatment and remained busy their whole night and today appeared at P.S and complained that above accused persons with their common intention caused pistol injuries to his brother in order to commit his murder and also created harassment by making aerial firing; that two unknown person were also seen by them perfectly and they will be identified; complaint is that investigation may be carried out.

2. After usual investigation police submitted the challan and the learned trial Court after completing necessary formalities framed the charge against the appellant/respondent to which he pleaded not guilty and claimed trial.

3. In order to prove its case the prosecution examined five (05) witnesses, who exhibited numerous documents and other items. Then statement of accused under Section 342 Cr.P.C was recorded whereby he denied the allegations levelled against him and claimed his false implication on account of emnity. However, he neither examined himself on Oath nor led any evidence in his defense.

4. After hearing the parties and assessing the evidence on record the trial court convicted and sentenced the appellant/respondent as reproduced under opening paragraph of this Judgment, hence appellant has preferred captioned appeal against his conviction while injured and complainant preferred revision application for enhancement of said sentences. Since captioned appeal and revision have been preferred against the same judgment, as such both are being decided through this common judgment.

5. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case on account enmity hence the FIR was lodged after a delay of 16 hours which gave the complainant's side the chance to cook up a false case against the appellant; that the eye-witnesses are planted witnesses and there evidence be discarded especially as they are all related to the deceased; that the ocular evidence contradicts the medical evidence; that the recovery of empties is of no assistance when no fire arm has been recovered and that for any or all of the above reasons the appellant should be acquitted of the charge by extending him the benefit of the doubt. In the event that this court upheld the conviction of the appellant no case had been made out to revise the sentences handed down by the trial court as the court had rightly exercised its discretion in terms of sentencing based on the particular facts and circumstances of the case and the revision application be dismissed. In support of his contentions, he placed reliance on the cases of (i) Hashim Qasim and another v. The State [2017 SCMR 986], (ii) Faheem Ahmed Farooqui v. The State [2008 SCMR 1572] and (iii) Saindad and 2 others v. The State [1972 SCMR 74].

6. Learned APG as well as 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 the FIR was lodged promptly which gave no opportunity for the appellants to make up a false case against the appellant; that their were two eye-witnesses to the shooting incident one of whom was injured on the spot both of whose evidence could be safely relied upon; that the medical evidence supported the ocular evidence; that empties were recovered from the crime scene which supported the prosecution case and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed. In support of their contentions, they placed reliance on the cases of (i) Mohibullah alias Gandhgeer and others v. The State [2024 MLD 525], (ii) Qutub Khan v. The State and another [2024 PCr.LJ 516], (iii) Qasim Shahzad and another v. The State and others [2023 SCMR 117], (iv) Sajid Mehmood v. The State [2022 SCMR 1882] and (v) Liaqat v. The State [2006 SCMR 33].

7. With regard to the enhance of the sentence under Section 324 P.P.C from 5 years the learned APG contended that the trial court had correctly exercised its discretion in awarding the appellant 5 years for this offence and that the revision application be dismissed. On the other hand learned counsel for the complainant contended that the trial court had erred in exercising its discretion under section 324 P.P.C based on the particular facts and circumstances of the case whereby the appellant fired 4 shots at the injured Fateh and as such is sentence should be increased. In support of his contentions he placed reliance on the case of Sheqab Muhammad v. The State and others [2020 SCMR 1486]

8. I have heard the arguments of the learned counsel for the appellant, learned Additional Prosecutor General Sindh and learned counsel for the complainant and have 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.

9. Based on my reassessment of the evidence of the PW's, especially the medical evidence, recovery of empties at the crime scene I find that the prosecution has proved beyond a reasonable doubt that Fateh Muhammed (Fateh) was injured by firearm on 07.02.2014 at about 6pm at village Pai Khan Rind near tube well Manzoor Khan Rind, Deh 08 Dad Taluka Nawabshah.

10. The only question left before me therefore is who injured Fateh by firearm at the said time, date and location?

11. After my reassessment of the evidence on record, I find that the prosecution has proved beyond a reasonable doubt the charge against the appellant for which he was convicted for the following reasons;

(a) Admittedly the FIR was lodged after a delay of 16 hours of the incident however based on the particular facts and circumstances of the case I find that this delay has been fully explained as initially his injured brother/Fateh had to be taken to hospital for treatment which was about 25KM's away and would have taken considerable time to reach where he remained overnight receiving treatment after receiving 4 gunshot wounds and then once Fateh was out of danger the complainant went to lodge the FIR at the PS which was again a return distance of 25 KMs and as such I find that this delay is not fatal to the prosecution case. In this respect reliance is placed on the case of Muhammad Nadeem alias Deemi v. The State (2011 SCMR 872).

(b) The appellant is named in the FIR with the specific role of making direct fire on Fateh which lead to him sustaining firearm injuries.

(c) In my view the prosecution's case primarily rests on the eye-witnesses to the attempted murder whose evidence I shall consider in detail below;

(i) Eye-witness PW 1 Ali Asghar. He is the complainant and is the brother of the injured Fateh. According to his evidence prior to this incident the accused had a dispute with Fateh over agricultural land who had threatened Fateh to withdraw the land and the cases otherwise he will murder him. On 07.02.2014 their nekmard had called a fesla and he and Ali khan were going there on one bike whilst his brother Fateh was going on another bike. At about 6pm when they reached Government tube well near village Sujwal Shaikh link road he saw accused with a pistol and two unknown persons with a rifle and KK. Accused signaled Fateh to stop whereupon accused made straight fire at Fatah with intention to murder him as well as firing at them. The accused then escaped by making aerial firing. They then shifted Fateh to hospital where they were busy in treatment overnight and then he went to lodge the FIR.

This eye-witness knew the appellant before the incident and saw the appellant from close range firing at his brother Fateh with a pistol which fire hit Fateh. Since it was a day light incident and the witness saw the accused fire at Fateh from close range (10 to 15 paces) with a pistol there is no case of mistaken identity and no need to hold identification. The accused is also named with specific a role in the FIR. In this respect reliance is placed on the cases of Amanullah v. State (2023 SCMR 527) and Qasim Shazad v. State (2023 SCMR 117).

Admittedly the eye-witness was related to the deceased who was his brother and also there appears to be enmity between the parties over agricultural land and hence I have considered the evidence of this witness with some caution.

This eye-witness is not a chance witness as he was going with his injured brother Fateh to sort out their dispute with Irfan with their local nekmard when the incident took place. There are no material improvements in his FIR from his evidence. He was not dented during a lengthy cross-examination and he gave his evidence in a natural manner and thus I believe his evidence to be trust worthy, reliable and confidence inspiring and I believe the same.

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 evidence to be trust worthy reliable and confidence inspiring. 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) Muhammad Ismail v. The State (2017 SCMR 713) and Qasim Shazad v. State (2023 SCMR 117). That what is of significance is the quality of the evidence and not its quantity and in this case I find the evidence of this eye-witnesses to be of good quality and believe the same.

(ii) Eye-witness PW 2 Fateh Muhammed. He is the brother of the complainant and was fired upon by the accused and injured. His evidence corroborates the evidence of the complainant in all material respects. He is named as the injured eye-witness in the FIR. He states in his evidence that he was fired upon from about 4 feet which accounts for the blackening in one of his firearm wounds. He states that he was shot at on his arms, shoulder and stomach which accords with the medical evidence. His evidence was not materially improved on from his S.161 Cr.P.C statement. Ordinarily I would have given no weight to his evidence since his S.161 Cr.P.C statement was recorded 13 days after the incident however since he is named in the promptly lodged FIR and according to his evidence he was recuperating in the Aga Khan hospital from his 4 bullet injuries and it is settled by now that the evidence of an injured eye-witness is deemed more reliable than usual eye-witnesses. In this respect reliance is placed on the case of Aquil v. State (2023 SCMR 831). He was not also dented during cross examination. He also knew the accused from before in this day light incident and he was injured by the accused which injury is supported by the medical evidence and his evidence is corroborated by the complainant I give some weight to his evidence.

Having believed the evidence of the two eye-witnesses (albeit one with lesser weight) which is discussed above I turn to consider the corroborative/ supportive evidence whilst keeping in view that 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 one brother would let the real person who seriously injured his other real brother get away scot 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).

(e) That the medical evidence fully support the eye-witness/ prosecution evidence that the injured Fateh received firearm injuries on the parts of his body as mentioned by the eye-witness complainant and Fateh who himself was the injured eye-witness. In any event it is well settled by now that if the medical evidence is in conflict with the ocular evidence the ocular evidence will take precedence over the medical evidence if it is found to be trust worthy reliable and confidence inspiring (which it is in this case). In this respect reliance is placed on the case of Imran Mehmood v. The State and another [2023 SCMR 795].

(f) That there was no ill will or enmity between the police and the appellant and as such the police had no reason to falsely implicate the appellant in this case, for instance, by planting the empties at the crime scene. 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 I.O. who was not dented during cross-examination.

(g) 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) Khadim Hussain v. The State (PLD 2010 SC 669) and Maskeen Ullah and another v. The State and another (2023 SCMR 1568). The evidence of the PW's provides a believable corroborated unbroken chain of events from the agricultural dispute between the appellant and Fateh to the appellant shooting Fatah and seriously injuring him to the recovery of empties at the crime scene to the appellant initially absconding before being arrested.

(h) That from the evidence it does not appear that the accused has denied his presence at the crime scene at the time of the murder of the deceased.

(i) The motive for the attack on Fateh by the appellant has come on record through the FIR and witness evidence. Namely, that the appellant had a dispute with Fateh over agricultural land which was also the subject of civil litigation which the appellant wanted the injured Fateh to withdraw.

(j) The appellant has a long CRO of similar type cases and even further cases were lodged against him whilst he was on bail in this case.

2025 Y L R 977

[Sindh]

Before Naimatullah Phulpoto and Khadim Hussain Tunio, JJ

Zohaib Ali Samo---Appellant

Versus

The State---Respondent

Criminal Appeal No. 175 of 2023, decided on 24th January, 2024.

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

----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody and safe transmission of the narcotic substances not proved---Prosecution case was that 1780-grams charas was recovered from the possession of accused---Complainant had deposed that he brought accused and case property at Police Station where he lodged the FIR against him---Nowhere he had deposed that either he deposited charas with the Incharge of Malkhana or handed it over to the Investigating Officer of the case---Police Constable/mashir had also neither deposed that charas was deposited with the Incharge of Malkhana nor it was handed over to the Investigating Officer---However, Investigating Officer deposed that charas was deposited in the Malkhana---Record reflected that alleged recovery was effected on 11.10.2022, whereas sample parcels were received in the office of Chemical Examiner on 12.10.2022 without any plausible explanation as to where they remained from 11.10.2022 to 12.10.2022---Prosecution had failed to establish safe custody and safe transmission of the sealed sample parcels to the Chemical Examiner as Moharrar, who kept the sample parcel in the Malkhana and Police Constable, who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution---Chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under the Act, 1997 and the chain of custody ensures 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 unsafe to justify conviction of the accused---Prosecution, therefore, has to establish that the chain of custody 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, therefore, reliance could not be placed on the report of the Chemical Examinerto support conviction of the appellant---Appeal against conviction was allowed, in circumstances.

Muhammad Hazir v. The State 2023 SCMR 986 rel.

(b) Criminal trial---

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

Zafar Ali Talpur for Appellant.

Khadim Hussain, Addl. P.G for the State.

Date of hearing: 17th January, 2024.

Judgment

Naimatullah Phulpoto, J.---Zohaib Ali Samo appellant was tried by learned Special Judge, CNS, Thatta in Special Case No. 91 of 2022 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 25.02.2023, appellant was convicted under section 9-3(c) of CNS (Amendment) Act, 2022 and sentenced to 10 years R.I and to pay fine of Rs.100,000/- and in default in payment of fine, he was ordered to undergo S.1 for 06 months. Appellant was extended benefit of section 382(b) Cr.P.C.

1. Brief facts of the prosecution case are that on 11.10.2022, SIP Manzoor Ali Chandio, posted at CIA Thatta, left P.S along with his subordinate staff for patrolling duty, when police party reached at Attock Petrol Pump National Highway, SIP Manzoor Ali Chandio received spy information that a person was selling charas at Nandi Allahkhai. Police party reached at the pointed place at 1230 hours and found a person standing there, who was carrying a shopper in his hand. On enquiry, accused disclosed his name as Zohaib Ali. It is alleged that said person tried to escape but was apprehended by the police and from his possession one shopper was secured containing four pieces of charas, on weighing, it became 1780 grams. Mashirnama of arrest and recovery was prepared in presence of mashirs namely PCs Ahmed Khan and Ali Nawaz; accused and case property were brought to the police station where FIR vide Crime No. 253/2022 under Section 9(c) of CNS Act, 1997 was registered on behalf of state.

2. During investigation, charas was sent to chemical examiner and positive report was received. On conclusion of investigation, final report was submitted against the appellant under the above referred section.

3. Trial Court framed Charge against appellant under the above referred sections at Ex.02, to which he pleaded not guilty and claimed trial.

4. At trial, prosecution examined three witnesses and positive report of the chemical examiner was produced in evidence. Thereafter, prosecution side was closed.

5. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C at Ex.9. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence.

6. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence by judgment dated 25.02.2023, convicted and sentenced the appellant as stated above. Hence, the appellant being dissatisfied with the judgment of conviction against him has filed instant appeal.

7. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 25.02.2023 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

8. Learned advocate for the appellant mainly argued that prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner, that neither Head Moharir of the police station nor PC Rafiq Ahmed, who had taken charas to the chemical examiner has been examined; that even though it was a case of spy information, no private person was associated to witness the arrest and recovery. Lastly, it is argued that prosecution has failed to prove its' case against the appellant.

9. Mr. Khadim Hussain Addl. P.G argued that evidence of police officials is confidence inspiring, reliable and corroborated by positive report of chemical examiner. As regards safe custody and safe transmission of the charas to the chemical examiner is concerned, he argued that no question with regard to tempering of the charas at Malkhana of the police station was put up to the prosecution witnesses and even report of the chemical examiner depicts that seal on the parcel was intact. Thus, prosecution has established safe custody and safe transmission of the charas. He prayed for dismissal of the appeal.

10. After hearing learned counsel for the parties, we have re-examined the entire prosecution evidence produced before the trial Court and have come to the conclusion that prosecution has failed to prove it's case against the appellant for the reasons that from the evidence it appears that prosecution has also failed to prove safe custody and safe transmission of the charas to chemical examiner for the reasons that SIP Manzoor Ali Chandio, head of the police party has deposed that he brought accused and case property at P.S where he lodged the FIR against him. No where he has deposed that either he deposited charas with the incharge of Malkhana or handed it over to the I.O of this case. P.W-02 PC Ahmed Khan has also neither deposed that charas was deposited with the Incharge of Malkhana nor it was handed over to the I.O. However, P.W-03 SIP Muhammad Hashim deposed that charas was deposited in the Malkhana. Record reflects that alleged recovery was effected on 11.10.2022, whereas sample parcels were received in the office of chemical examiner on 12.10.2022 without any plausible explanation as to where remain sample parcel from 11.10.2022 to 12.10.2022. Prosecution has failed to establish safe custody and safe transmission of the sealed sample parcel to the chemical examiner as Moharrar, who kept the sample parcel in the Malkhana and PC Rafiq Ahmed, who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution.

2025 Y L R 981

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Nawab Khan Kalhoro and 3 others---Applicants

Versus

The State---Respondent

1st Criminal Bail Applications Nos. S-615 and S-713 of 2024, decided on 30th December, 2024.

Criminal Procedure Code (V of 1898)---

----S. 498---Penal Code (XLV of 1860), Ss. 337-F(v), 337-F(iii), 114, 148, 149 & 504---Ghayr-jaifah hashimah, mutalahimah, abettor present at the time of offence, abetment, rioting armed with deadly weapon, unlawful assembly---Pre-arrest bail, confirmation of---All the accused had been assigned a general role---Injuries allegedly sustained by injured prosecution witness were on non-vital parts of his body like legs and finger of hand---Punishment prescribed under the law for the said injuries was upto 05 years, which did not fall within the prohibitory clause of S. 497., Cr.P.C---Alleged incident was lodged with a delay of 12 days and no plausible explanation had been furnished by the prosecution for such an inordinate delay---After grant of pre-arrest bail applicants had surrendered before the Trial Court and there was no complaint against them regarding misuse of the concession so extended to them---After recording evidence if the prosecution succeeded in establishing the charge against the accused, even then punishment of more than 03 years could not be visualized---Case against the applicants required further enquiry---Parties were on inimical terms with each other, thus, there was a possibility that the prosecution had been initiated for ulterior motives and with mala fide intention---Applications were accepted and pre-arrest bails granted to the applicants were confirmed, in circumstances.

Cr. B.As. Nos. S-428, 480 and 493 of 2024 ref.

Muhammad Tanveer v. The State PLD 2017 SC 733 and Rana Muhammad Arshad v. The State PLD 2009 SC 427 rel.

Sahkeel Ahmed G. Ansari along with Applicants (on bail) (in Cr. B.As. No. S-615 and S-713 of 2024).

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

Ali Asghar Chandio, the Complainant in person.

Date of hearing: 30th December, 2024.

Order

Muhammad Saleem Jessar.---By this common order, I intend to dispose of both the captioned bail applications, as common question of law and facts. are involved and both the applications are filed in one and same crime.

1. Applicants Nawab Khan son of Imam Bux, Ali Ahmed son of Ali Hassan, Gul Hassan son of Mir Hassan and Mueen son of Muhammad Hassan (Cr. Bail Application No.S-615/2024) and Shahnawaz and Noor Ahmed, both sons of Ali Hassan Kalhoro (Cr. Bail Application No.S-713/2024) seek pre-arrest bail in Crime No.23 of 2024, registered at Police Station Raheem Abad, Shikarpur, for offence under Sections 337-F(v), 337-F(iii), 337-F(i), 114, 148, 149, 504, P.P.C, after their plea for pre-arrest bail has been turned down by the learned IIIrd Additional Sessions Judge, Shikarpur vide single order dated 05.10.2024. The case has been challaned and is pending for trial before the Civil Judge and Judicial Magistrate-I, Khanpur.

2. According to the case of prosecution, on 18.9.2024, at about 4.00 p.m., in the street of village Jado Kalhoro, Taluka Khanpur, District Shikarpur, the present applicants along with co-accused Muhammad Hassan and Jhangal, having iron bars and lathies, intercepted the complainant Imdad Ali Kalhoro, his brother Jan Muhammad and cousin Munir Ahmed and caused injuries to PW Jan Muhammad at his legs, right hand and other parts of body and then fled away by hurling abuses.

3. Learned counsel for the applicants submits that the FIR is delayed for about 12 days without plausible explanation. He next submits that the role assigned to the applicants is general in nature, besides, the injuries allegedly sustained by injured PW Jan Muhammad are on non-vital parts of his body like left and right legs and finger of hand and that said injuries have been declared to be Jurh Ghayr Jaifah Hashimah and Jurh Ghayr Jaifah Mutalahimah falling under Sections 337-F(iii) and 337-F(v), P.P.C, carrying maximum punishment of 05 years, therefore, does not exceed the limits of prohibitory clause of Section 497, Cr.P.C.. He next submits that the parties are already on strained relations. therefore, the concession of interim pre-arrest bail already granted to the applicants may be confirmed.

4. Learned Addl. P.G. submits that the role attributed to the applicants is general in nature; besides the injuries allegedly sustained by injured PW Jan Muhammad carry maximum punishment upto 05 years, which does not exceed the limits of prohibitory clause of Section 497, Cr.P.C. therefore, he has no objection for confirmation of interim pre-arrest bail.

5. Learned Counsel for the complainant opposes the bail applications, contending that the applicants are nominated in the FIR and they have been assigned the role of causing lathi and iron bars blows to injured PW Jan Muhammad; besides, no mala fide has been shown which may warrant their admission to pre-arrest bail. As far as medical evidence is concerned, learned Counsel for the complainant under the cover of his statement of today's date places on record copy of the report of Special Medical Board and submits that the injury shown as Jurh Ghayr Jaifah Mutalahimah was converted into Jurh Ghayr Jaifah Hashimah, which is severe than the former. In support of contentions, he has referred to an unreported order dated 02.10.2024 passed in Cr. B.As. Nos.S-428, 480 & 493 of 2024 and submits that both the bail applications having no merit may be dismissed.

2025 Y L R 999

[Sindh]

Before Muhammad Saleem Jessar, J

Meer Muhammad Chandio---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 2088 of 2024, decided on 8th October, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 337-F(vi), 337-L(2), 114 & 504---Munaqqilah, causing hurt, abettor present at the time of offence, intentional insult with intent to provoke breach of peace---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Applicant was nominated in the FIR with specific role of causing hatchet blow to injured/complainant on his fingers of the hand, which was non-vital part of the body and had not been declared by the Medico-Legal Officer to be fatal for his life---Incident was said to have occurred on 30.06.2024, whereas FIR was lodged on 20.07.2024 i.e. with delay of about one month for which no plausible explanation had been furnished by the prosecution for such an inordinate delay---Delay in criminal cases had always been considered to be fatal for the prosecution case---Thus, case against applicant required further inquiry within meaning of subsection (2) to S.497 Cr.P.C---Interim bail earlier granted to applicant was confirmed, in circumstances. [pp.1000, 1001] A & B

Muhammad Tanveer v. State and another PLD 2017 SC 733 rel. 1

Muhammad Nawaz Chandio for Applicant.

Ms. Rubina Qadir, Deputy Prosecutor General, Sindh for the State.

Date of hearing: 8th October, 2024.

order

Muhammad Saleem Jessar, J.---Through this application, applicant Meer Muhammad seeks his admission to pre-arrest bail in Crime No.136 of 2024 registered with Police Station Mirpur Bathoro, for the offences punishable to Sections 114, 337-F(vi), 337-L(2) and 504 P.P.C. The applicant preferred his anticipatory bail before the Court of Sessions wherefrom it was assigned to Addl. Sessions Judge-I, Sujawal vide Criminal Bail Application No.525 of 2024 (re-Meer and another v. The State), who after hearing the parties, has turned down his request through order dated 27.07.2024; hence, instant bail application has been maintained.

1. Since the facts of the prosecution case are already mentioned in the FIR, which is annexed with the Court file, therefore, there is no need to reproduce the same.

2. Learned counsel for the applicant submits that allegation against accused is that he allegedly had caused hatchet blows to injured /complainant which hit on his fingers and the injury allegedly sustained by him has been described by the MLO to be Shajjah-i-Ghayr Jaifah [337-F(vi) P.P.C] which carries maximum punishment up to seven years; besides, remaining offences are bailable. He next submits that co-accused Waheed and Sattar have already been granted bail by the Court below, therefore, case of present applicant is at par with them; hence, prays for confirmation of the bail.

3. On the other hand, learned Deputy P.G, Sindh appearing for the State, opposes the bail application on the ground that applicant is nominated in the FIR with specific role of causing injury to injured, therefore, he is not entitled for the bail.

4. The complainant, inspite of notice, has chosen to remain absent.

2025 Y L R 1016

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Imran Ahmed---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 46 of 2024, decided on 5th June, 2024.

Criminal Procedure Code (V of 1898) ---

----S.498---Penal Code (XLV of 1860), S. 489-F---Dishonoring of cheque --- Pre-arrest bail, grant of---Allegedly on account of some transaction petitioner /accused applicant gave three cheques to the complainant and all three cheques were dishonored on presentation, however, the complainant registered (present) FIR against the petitioner/accused but only in respect of one dishonored cheque---Record revealed that, subsequent to registration of present FIR, the complainant had also registered one more FIR in respect of another cheque in which the petitioner/accused was arrested and was granted bail after 27 days---A civil suit, reportedly, between the parties on the same cause of action was also pending---Three cheques given by the petitioner/accused to the complainant were in respect of one and the same transaction--- When the petitioner / accused was arrested in one FIR and was granted bail, the same principle would be applicable in the present case/FIR ---It is not scheme of law to send a person to jail by dismissing his pre-arrest bail application and then granted him post arrest bail---Complainant instead of registering one FIR in respect of all dishonored cheques had chosen to register separate FIR sin respect of each cheque against the petitioner / accused after a few months hiatus---Said action of the complainant appears to be tainted with mala fide---Pre-arrest bail was granted to the petitioner / accused, in circumstances.

Umer Farooq along with Applicant.

Zulfiqar Ahmed for the Complainant.

Ms. Rahat Ahsan, Addl: PG Sindh for the State.

order

2025 Y L R 1021

[Sindh (Mirpurkhas Bench)]

Before Muhammad Saleem Jessar, J

Anopo alias Anopchand---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-103 of 2024, decided on 24th June, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3 & 4---Prohibition on manufacturing, of intoxicants, owning or possessing intoxicants---Pre-arrest bail, grant of---Rule of consistency---Absence of incriminating material---Further inquiry---Allegation against the applicant was that he whilst sitting on rear seat of motorcycle driven by co-accused (son of applicant) was intercepted by the police, but escaped by taking benefit of darkness; however, police party though beings armed with sophisticated weapons did not follow him---Co-accused, from whom police recovered motorcycle and certain quantity of local liquor, had been bailed out---Applicant at the time of fleeing away had not left any incriminating material nor had been shown to have any article with him connecting him with the commission of offence except his mere presence, which allegation was yet to be established by the prosecution after recording evidence and then Trial Court had to determine the same---Maximum punishment for the offence alleged was 03 years---Case against applicant was one of further inquiry---Pre-arrest bail was allowed, in circumstances.

Manzoor Ali alias Mumtaz v. The State 2001 PCr.LJ 344; Muhammad Ramzan v. Zafar Ullah and another 1986 SCMR 1380 and Muhammad Tanveer v. The State and another PLD 2017 SC 733 rel.

Wishan Das Kollhi for Applicant.

Shahzado Saleem, Additional P.G Sindh for the State.

Date of hearing; 24th June, 2024.

Order

Muhammad Saleem Jessar, J.---Through instant bail application, applicant Anopo alias Anopchand seeks his admission on pre arrest bail in Crime No.15 of 2024, registered with P.S Kaloi for offence under Article 3/4 PEHO, 1979. The case has been challaned which is now pending for trial before Court of Judicial Magistrate Diplo. After furnishing surety before this court, the applicant has surrendered before trial court and joined the trial proceedings which is fixed for hearing on 01.07.2024.

1. The crux of the prosecution case are that a police party headed by SIP Premon had left PS under their daily dairy entry No.21 at 0300 hours dated 22.05.2024. While snap checking they saw a red color motorbike came along with riders having a white colored katta (sack) lying over fuel tank. The police party intercepted them to stop but person seated on rear seat to whom they know as Anopo alias Anopchand (applicant) slipped away by making his escape good due to darkness. The person who was riding the motorbike was enquired of his whereabouts who disclosed his name to be Raja. Due to non-availability of private persons, the complainant by citing his subordinate(s) as mashirs took possession of the motorbike as well katta (sack) then 10 pints of white color watt one and 10 pints of red color dry gin. Such memo of arrest and recovery was prepared on spot. Later they came at the PS along with accused and case property where instant case was registered on behalf of the State.

2. Learned Counsel submits that though the applicant is nominated in the FIR; however, nothing incriminating has been shown to have been recovered from his exclusive possession and per allegation he while seeing the police party made his escape good, therefore, case against him requires further inquiry. He lastly prayed for grant of bail.

3. On the other hand, learned Assistant P.G appearing on behalf of State opposes the bail application; however, cannot controvert the fact that the offence with which the applicant stand charged carries maximum punishment for 03 years besides allegation against him is that he allegedly flee away from the scene of offence and nothing was recovered from his possession.

2025 Y L R 1036

[Sindh]

Before Naimatullah Phulpoto and Irhsad Ali Shah, JJ

Ramzan---Appellant

Versus

The State---Respondent

Special Criminal Anti-Terrorism Jail Appeal No. 129 of 2023, decided on 30th September, 2024.

Penal Code (XLV of 1860)---

----Ss. 324, 353, 427 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit murder, using criminal force or assault on public servant while he was performing his duty, causing damage or loss of fifty rupees or more through mischief, common intention, act of terrorism---Appreciation of evidence---Probability of false implication by police---Accused was charged that he along with his co-accused in furtherance of their common intention deterred the police party from discharging its lawful duty as public servant by firing at them intending to commit their murder; accused too were fired at in self defence---Record showed that there was no independent witness to the incident---Armed encounter was straight, the same as per the complainant continued for about 3 to 4 minutes, yet none sustained fireshot injury except the appellant on his right leg, which appeared to be surprising---As per the complainant, he prepared the memo of arrest and recovery while sitting on the front seat of the police mobile---Mashir came with a different version; as per said witness, memo of arrest and recogvery was prepared by the complainant by using the bonnet of a police mobile---Such inconsistency between their evidence could not be overlooked---Pistol secured from the appellant as per the memo of arrest and recovery was without a number---On forensic examination, its number was found rubbed---Moreover, there was a distinction between the pistol without a number and the pistol with its number rubbed---Such inconsistency suggested its manipulation and/or foistation---No independent person was examined by the Investigating Officer to ascertain the correctness of the incident---Such omission on the part of Investigating Officer could not be overlooked---Apparently, it was a table investigation which could hardly be relied upon---No act of terrorism was evident---In such circumstances, contention of accused that he had been involved in the case falsely by the police only to save themselves from legal consequences for causing fire shot injury to him could not be lost sight of---Appeal against conviction was allowed, in circumstances.

Ms. Roop Mala Singh for Appellant.

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

Date of hearing: 30th September, 2024.

Judgment

Irshad Ali Shah, J.---It is the case of the prosecution that the appellant and absconding accused Shakir alias Chahngli in furtherance of their common intention deterred the police party of PS Azam (Town led by ASI Tariq Ali Khan from discharging its lawful duty as a public servant by firing at them intending to commit their murder; they too were fired at in self-defence; the appellant was apprehended at the spot in injured condition; from him was secured an unlicensed pistol of 30 bores with a magazine containing three live bullets of the same bore while the absconding accused made his escape from the place of incident on his motorcycle, for which the present case was registered. At trial, both the cases, one relating to a police encounter and the other for recovery of the unlicensed weapon were amalgamated in terms of Section 21-M of the Anti-Terrorism Act, 1997 and the appellant was charged accordingly, which he denied, the prosecution to prove the same examined six witnesses and then closed its side. The appellant in his statement recorded under Section 342, Cr.P.C denied the prosecution's allegation by pleading innocence; he did not examine anyone in his defence or himself on oath. On completion of the trial, the appellant was convicted for the said offence and sentenced to undergo various terms of imprisonment spreading over 10 years; all the sentences were directed to run concurrently with the benefit of Section 382(b) Cr.P.C by learned Judge, Anti-Terrorism Court No.XIII Karachi vide judgment dated 26.07.2023, which is impugned by him before this Court by way of the instant Spl.Crl. AT Jail Appeal.

1. Heard arguments and perused the record.

2. There is no independent witness to the incident. The armed encounter was straight, the same as per the complainant continued for about 3/4 minutes, yet none sustained fireshot injury except the appellant on his right leg, which appears to be surprising. As per the complainant, he prepared the memo of arrest and recovery while sitting on the front seat of the police mobile. P.W/Mashir PC Ali Raza came with a different version; as per him, it was prepared by the complainant by using the bonnet of a police mobile. Such inconsistency in between their evidence could not be overlooked. The pistol secured from the appellant as per the memo of arrest and recovery was without a number. On forensic examination, its number was found rubbed. There is a distinction between the pistol without a number and the pistol with its number rubbed. Such inconsistency suggests its manipulation and/or foistation. No independent person was examined by the Investigating Officer to ascertain the correctness of the incident; such omission on his part could not be overlooked. Apparently, it was a table investigation which could hardly be relied upon. No act of terrorism is evident. In these circumstances, the contention of the learned counsel for the appellant that the appellant has been involved in this case falsely by the police only to save themselves from legal consequences for causing fire shot injury to him could not be lost of sight.

3. The conclusion which could be drawn from the above discussion would be that the prosecution has not been able to prove its case against the appellant beyond a shadow of reasonable doubt and to such benefit he is found entitled.

2025 Y L R 1038

[Sindh]

Before Kausar Sultana Hussain and Jawad Akbar Sarwana, JJ

MOSSIN WALI---Appellant

Versus

The STATE---Respondent

Criminal Bail Application No. D-1387 of 2024, Cr. M.As. Nos. 9004 and 9246 of 2024, decided on 26th July, 2024.

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

----Ss. 497 & 561-A---Penal Code (XLV of 1860), Ss. 409, 419, 420, 468, 471 & 109---Criminal breach of trust, cheating by personation, cheating, forgery, using as genuine a forged document, abetment---Bail, grant of---Allegedly, accused-petitioner misappropriated, diverted and siphoned huge amount from the complainant's father---Court passed a short order allowing bail to the accused-petitioner with bail amount set at Rs. one crore, which bail amount was about less than of half Rs. 21,091,201/-, the amount mentioned in the interim charge sheet---Later, accused-petitioner filed an application under S. 561-A, Cr.P.C. seeking a reduction of the bail amount from one crore to ten lac---Complainant also filed an application under S. 561-A, Cr.P.C seeking an enhancement of the bail amount from one crore to Rs. 21,091,201/----Held, that record showed that the applicant/accused was a seasoned banker having apparently almost 20 years of banking experience, having served in three/four different banks, he was a person of means, and, after leaving HBL Bank in 2020, he entered into the real estate business while passing off as a Branch Manager of HBL with the complainant's father whom he knew for a long time---Applicant/ accused had produced neither additional material nor brought on record any new facts to dislodge the amount of bail of Rs. 1 crore fixed by the High Court to grant bail to the applicant/accused---Neither any plausible nor reasonable grounds had been disclosed by the applicant/accused to reduce the bail amount---Application for reduction of bail had been filed within less than 10 days from the bail granting order, and no real intent or effort had been demonstrated to suggest that the accused had suffered unnecessarily for reasons beyond his control, with the bail amount fixed at Rs. 1 crore---Bail amount was in line with the gravity of the charge against the accused and also consistent with the High Court exercising its inherent powers read in the light of S. 5(7) of the Offences in Respect of Banks (Special Courts) Ordinance, 1984---Applicant/Accused was a professional banker with considerable experience and dealing with the complainant for almost a lifetime---Accused/applicant breached the trust of complainant's father and his fiduciary duty as a banker---Intentions of accused/applicant appeared premeditative (which would be the prosecution's case to prove), apparently misappropriating/ embezzling funds of Rs.2.1 crore, which would be safely parked and might be liquidated to put up the bail of Rs.1 crore---Based on the tentative examination of the facts and circumstances of the case, the quantum of the bail amount of Rs. 1 crore (50% of the misappropriated/embezzled amount of Rs.2.1 Crore) was reasonable, and less than the misappropriated/embezzled amount mentioned in the Interim Charge Sheet---Bail amount of Rs. 1 crore neither constituted punishment nor was it excessive nor beyond the means of the applicant/accused---Complainant had neither furnished any fresh information nor case law supporting his prayer---While deciding a bail application, the High Court exercised special jurisdiction and was not beholden strictly to any statutory provision of the Cr.P.C---So long as the quantum of the bail was within the contours of reasonableness in the peculiar facts and circumstances of the case, and even otherwise, in certain situations, the Court did not even need to give any reasons for deciding upon a particular bail amount---Both the petitions filed by accused and complainant were dismissed, in circumstances.

Allied Bank of Pakistan v. Khalid Farooq 1991 SCMR 599; Chaudhry Shujat Hussain v. The State 1995 SCMR 1249 and Sikandar Abdul Karim v. The State 1998 SCMR 908 rel.

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

----S. 497---Bail---Observations made by the Court---Observations made in the order passed in bail application were tentative in nature---Trial Court was at liberty to independently adjudicate the case on its own merits without being influenced by the observations made by the Court in any bail application.

Shaikh Javed Mir for Applicant/ Accused.

Kazi Abdul Hamid Siddiqui, Assistant Attorney General for the

State.

Ameet Kumar for the Complainant.

Date of hearing: 19th July, 2024.

COMMON ORDER

JAWAD AKBAR SARWANA, J.---On 02.07.2024, this Court passed a Short Order on even date allowing bail to the Applicant/Accused of Rs.10,000,000 (Rupees One Caror only), which bail amount was about less than half of Rs.21,091,201 (Rupees Two Crore Ten Lac Nighty-one Thousand Two Hundred One only), the amount mentioned in the Interim Charge Sheet dated 06.06.2024 allegedly misappropriated, diverted and siphoned of by the Applicant/Accused from the Complainant's senior citizen father. On 08.07.2024, when the bench gave reasons, the Applicant/Accused had not put up any bail. Instead, on 10.07.2024, the Applicant/Accused filed an application under Section 561-A, Cr.P.C. (M.A. No.9004/2024) seeking a reduction of the bail from Rs.10,000,000 (one crore) to Rs.1,000,000 (ten lacs). Thereafter, on the very next day, i.e. 11.07.2024, the Complainant filed an application under Section 561-A, Cr.P.C. (M.A. No. 9246/2024) seeking an enhancement of the bail from Rs.10,000,000 (one crore) to Rs.21,091,201 (Rupees Two Crore Ten Lac Nighty-one Thousand Two Hundred One only). By this Common Order, we intend to dispose of M.As. Nos.9004/ 2024 and 9246/2024. The applications involve the same impugned Orders dated 02.07.2024 and 08.07.2024 and arise out of the same FIR No.12/2024.

1. Counsel of the Applicant/ Accused has submitted that neither the Applicant/Accused nor his family have any immovable properties, savings or assets to arrange the amount of surety. The Applicant/Accused is a family man and has already undergone spinal surgery. Therefore, the bail amount may be reduced. When we queried the Counsel for the Applicant/Accused if he had submitted any contempo-raneous evidence and/or documentary proof in support of his submissions either to demonstrate his medical grounds or any financial constraints, he candidly conceded that the Accused/ Applicant had none to offer accept to seek the mercy of the Court.

2. Yet according to the information presently available on record, it appears that the Applicant/Accused was a seasoned banker having apparently almost 20 years of banking experience, having served in three/four different banks, he was a person of means, and, after leaving HBL in 2020, entered into the real estate business while passing off as a Branch Manager of HBL to the Complainant's father whom he knew for a long time. There is a direct allegation against the Applicant/Accused in FIR No.12/2024 dated 23.05.2024, and he has been implicated in the crime as per the several Statements obtained and referenced by the I.O. Additionally, the Interim Charge Sheet dated 06.06.2024 suggests that the fake/bogus Term Deposit Receipts (TDR) have also been scrutinized by forensics, his former Bank, HBL, etc., as positively fake and bogus, and the same also do not match with the format of actual HBL TDR. If this is momentarily presumed to be correct, the misappropriated/embezzled funds of Rs. 2.1 Crore cannot have entirely vanished into thin air. Thus, for the reasons discussed in the Orders dated 02.07.2024 and 08.07.2024, this Court, based on the material placed before it by the Prosecution, was inclined to grant the Applicant/Accused bail by furnishing solvent surety of

Rs.1 Crore and P.R. bond in the like amount to the satisfaction of the Nazir of this Court. The sum of Rs. 1 Crore being equal to about 50% of the misappropriated/embezzled amount of Rs. 2.1 Crore.

2025 Y L R 1052

[Sindh]

Before Omar Sial, J

SULTAN AZIZ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 584 of 2021, decided on 20th May, 2022.

Criminal Procedure Code (V of 1898)---

----S. 497--- Control of Narcotic Substances Act (XXV of 1997), S. 9---Possession of narcotic substances---Bail, grant of---Heroin weighing 18.785 kilograms was recovered from the luggage of person "Z", however the level of Anti-Narcotics Force's (ANF) investigation and prosecution left a lot to be desired---No effective efforts were taken to discover the origins of the heroin or to bring to task the actual mastermind of the smuggling attempt---Until and unless the masterminds of the drug trade were brought to justice, the poverty of the drug mules would continue to be used by the drug barons, and only the names of such mules would keep changing---As per the FIR, narcotic was recovered from luggage of "Z" which was in his sole possession---Mere fact that petitioner picked up "Z" from a hotel and dropped him at airport terminal and that three people purchased tickets, together was not sufficient to deny bail to the peti-tioner---Apart from CCTV footage and purchasing of tickets, there appeared to be no other evidence which prima facie showed that petitioner shared a common intention with "Z" or that he was the person who had supplied drugs to "Z"---Petitioner was admitted to bail, in circumstances.

Iftikhar Ali Larik for Applicant.

Shamsher Khan holds brief for Ms. Abida Parveen Channer, Spl. Prosecutor, ANF.

2025 Y L R 1061

[Sindh]

Before Adnan-ul-Karim Memon, J

SIRAJ---Applicant

Versus

The STATE---Respondent

Criminal Bail Application No. 325 of 2023, decided on 19th July, 2023.

Criminal Procedure Code (V of 1898)---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 302, 393, 394 & 34---Qatl-i-amd, attempt to commit robbery, robbery, common intention---Bail, grant of---Further inquiry---Accused-Petitioner was charged that he along with his co-accused committed robbery from the complainant party---From the perusal of the FIR, it appeared that it had been lodged against one nominated and unknown accused persons who attempted to commit robbery using a weapon, however, there was no description of the applicant in the FIR---Record did not show that any implicating material evidence had been recovered from the applicant/accused---Record transpired that the name of the applicant/ accused had been included in the case upon the statement of co-accused recorded under S. 161, Cr.P.C.---Statements of co-accused recorded by police during the investigation were inadmissible in evidence and could not be relied upon---Evidence of an accomplice is ordinarily regarded suspicious, therefore, the extent and level of corroboration has to be assessed keeping in view the peculiar facts and surrounding circumstances of the case---In the present case, no identification parade had been held in so far as the applicant/accused was concerned even though the complainant mentioned in the FIR that he had seen the unknown assailants---In such cases, holding of identification parade becomes mandatory---Record did not show that the applicant/accused was a previous convict or hardened criminal---Applicant had been in continuous custody since his arrest and was no more required for any investigation nor the prosecution had claimed any exceptional circumstances, which could justify keeping him behind bars for an indefinite period pending determination of his guilt---Applicant/accused had succeeded to bring his case within the purview of further inquiry---Bail petition was allowed, in circumstances.

The State through Director Anti-Narcotic Force, Karachi v. Syed Abdul Qayum 2001 SCMR 14; Raja Muhammad Younas v. The State 2013 SCMR 669 and Farman Ali v. The State 1997 SCMR 971 rel.

Abdul Mutalib for Applicant.

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

2025 Y L R 1071

[Sindh (Larkana Bench)]

Before Omar Sial and Khalid Hussain Shahani, JJ

ABDUL WALI ACHAKZAI---Appellant

Versus

The STATE---Respondent

Criminal Appeals Nos. D-50 and D-51 of 2024, decided on 25th February, 2025.

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

----S. 9(c)--- Possession of narcotic substance---Appreciation of evidence---Safe custody of the recovered contraband not proved---Prosecution case was that accused were found transporting 330 kilograms charas concealed in the tank of a truck---Complainant testified at trial that after arrest and seizure, he brought the case property duly sealed to Customs Officer, showed the sample parcels to his superiors after de-sealing the same, whereafter those samples were separated as per their brands---Such fact alone was sufficient to draw an inference of tampering with the case property---Glance of record reflected that the case property was deposited by the Investigating Officer at chemical laboratory with a delay of two days---Neither the in-charge of warehouse was examined, nor Form 22.70 of Register No.XIX, required under Police Rules, 1934, was produced, to suggest its safe custody and safe transmission for chemical analysis--- Complainant further testified that the memo of arrest and seizure, being backbone of the case was authored by a clerk---Admittedly, said clerk too had not been examined---Record revealed that no incriminating evidence had been brought on the record against appellant AW, except mere allegation of being owner of truck; however, such fact had categorically been denied by him in his statement under S. 342, Cr.P.C.---Circumstances established that the prosecution had failed to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed accordingly.

Zahir Shah v. The State 2019 SCMR 2004; Javed Iqbal v. The State 2023 SCMR 139; Asif Ali and another v. The State 2024 SCMR 1408; Muhammad Hazir v. The State 2023 SCMR 986 and Qaiser Khan v. The State 2021 SCMR 363

rel.

Asif Ali Abdul Razak Soomro and Abdul Baqi Jan Kakar for Appellant (in Criminal Appeal No. D-50 of 2024).

Asif Hussain Chandio, Law Officer of Customs for the State (in Criminal Appeal No. D-50 of 2024).

Mehboob Ali for Appellants (in Criminal Appeal No. D-51 of

2024).

Asif Hussain Chandio, Law Officer of Customs for the State (in Criminal Appeal No. D-51 of 2024).

2025 Y L R 1092

[Sindh]

Before Adnan-ul-Karim Memon, J

Makhdoom FAZAL HUSSAIN QURESHI through Lawful Attorney---Appellant

Versus

The RETURNING OFFICER, NATIONAL ASSEMBLY - 219 (NA-219 HYDERABAD-II) and 2 others---Respondents

Election Appeal No. 124 of 2024, decided on 6th January, 2024.

Elections Act (XXXIII of 2017)---

----Ss. 60(10), 62(9)(ii), 63 & 140---Nomination of candidate to contest General Elections, rejection of---Tax liability, defect of---Curable or substantial?---Appellant (candidate) filed election appeal against rejection of his nomination by the Returning Officer due to being defaulter of FBR tax liability---Submission of the appellant was that he was unaware of the amount due and as per S. 60(10) of the Elections Act, 2017 ('the Act 2017') if a candidate deposits any amount of loan, tax, or government dues and utility expenses payable by him of which he is unaware at the time of filing of his nomination paper, his nomination paper shall not be rejected on the ground of default in payment of such loan (his outstanding Tax liability)---Objection raised against the appellant was that defect-in-question was not a curable one within the ambit of liability the same was actually substantial---Question whether reasons assigned by the Returning Officer were substantial or curable under S. 62(9)(ii) of the Act 2017---Held, that record revealed that when the appellant filed nomination papers there was no liability on his part vide a relevant letter, however, subsequently another letter showed that there was outstanding tax liability on the part of the appellant---These two contradictory letters were confusing as the appeal against the scrutiny order passed by the Returning Officer was of a summary nature, as Election Appellate Tribunal can pass an order within the specified period, thereafter, the proceedings stand abated and the order of the Returning Officer is deemed to have become final as under S. 63 of the Elections Act, 2017 no fact-finding inquiry is to be made and/or evidence is to be recorded which is only permissible before the Election Tribunal under S. 140 of the Elections Act, 2017 after the completion of first phase of Election, however, the qualification and disqualification of the appellant on the subject issue can also be adjudicated by the Election Appellate Tribunal as the FBR had shown certain amount outstanding against the appellant though there were two contradictory letters, however, the appellant had to sort out these things with the FBR---As such on this score alone the appellant could not be non-suited to contest the election at such stage---Since the appellant was ready and willing to cure the defect within a reasonable time, let him clear his dues within a reasonable time---Appellate Tribunal set-aside the impugned order passed by the concerned Returning Officer and he (Returning Officer) was directed to include the name of the appellant in the list of contesting candidates---Appeal was allowed accordingly.

Ali Tahir for Appellant.

G.M Bhuto Assistant Attorney General along with Sarmad Sarwar Assistant Director (Law) Election Commission of Pakistan for Respondents.

2025 Y L R 1102

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Hafeezullah BaJkaNI--- Applicant

Versus

The State and 2 others---Respondents

Crl. Mise. Application No. S-309 of 2023, decided on 8th April, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 173----Penal Code (XLV of 1860), Ss. 302, 148 & 149---Quashing of proceedings---Alternate remedy---Scope---Judicial Magistrate took cognizance of the report under S. 173, Cr.P.C submitted by the police, and the applicant, who was let-off during investigation, was joined and non-bailable warrants were ordered to be issued---Validity---Admittedly, the applicant was nominated in the FIR with specific role of causing injuries to the deceased---Besides, the offence with which the applicant had been charged was exclusively triable by the Court of Session and carried capital punishment, therefore, the Judicial Magistrate after taking cognizance had submitted the case papers to the Court of Sessions as required by S.190(1), Cr.P.C which was the ultimate Court of trial, where it had been instituted---However, after assigning number to it, the case had been assigned to Additional Sessions Judge (Trial Court)---Trial Court had also taken cognizance of the offence---Since the impugned order had been acted upon and had attained finality, hence it was not in existence or in the field---Application was not maintainable and had become infructuous---Conse-quently, the application was dismissed---After taking cognizance by the Trial Court, alternate remedy was made available for the applicant which could be availed if so advised.

Saeed Ahmed B. Bijarani for Applicant.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the

State.

Date of hearing: 8th April, 2024.

Order

Muhammad Saleem Jessar, J.---Through this application, applicant has called in question the order dated 25.08.2023, passed by Civil Judge and Judicial Magistrate-1, Kandhkot, whereby while taking cognizance on the report under section 173. Cr.P.C. submitted by the police, the applicant, who was let-off during investigation, was joined and NBWs were ordered to be issued against him.

1. It appears from the record that applicant Hafeezullah Bajkani was nominated under FIR No.48/2023 registered with Police Station Ghouspur, for offences punishable under Sections 302, 148, 149, P.P.C. During investigation, he was found innocent, therefore, was let-of by the police and was placed under column No.2 of the challan. Such report in terms of Section 173, Cr.P.C filed by the police before the Civil Judge and J.M-I/ MTMC, Kandhkot, who did not concur his opinion with police report and by taking cognizance issued NBWs against him as well as absconding accused vide impugned order dated 25.08.2023.

2. Since the offences, with which the applicant was charged, are triable by the Court of Session, therefore, the R&Ps of the case were transmitted to the Court of Sessions for trial. The case is now said to be pending for trial before the Court of 1st Additional Sessions Judge, Kandhkot vide Session Case No.316/2023 Re-State v. Gulzar and others.

3. At the very outset, learned counsel for the applicant submitted that NBWs issued by the Magistrate against the applicant may be converted into B.Ws so that the applicant may furnish required surety before the trial Court. On query of the Court, learned counsel admits that after issuance of NBWs, the applicant had filed pre-arrest bail application before the Court of Sessions, which was assigned to 1st Additional Sessions Judge, Kandhkot/ trial Court vide Session Case No.316/2023 Re-State v. Gulzar and others, where while declining his bail plea, the applicant was taken into custody and remanded to jail.

2025 Y L R 1114

[Sindh]

Before Muhammad Karim Khan Agha, J

Shaikh Nasiruddin and others---Petitioners

Versus

Ghulam Ali Kaderbhoy and others---Respondents

Constitution Petition No. S-248 of 2023, decided on 19th August, 2024.

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

----S.15---Constitution of Pakistan, Art.199---Ejectment of tenant---Default in payment of rent---Order of eviction of tenant by the Rent Tribunal---Filing of appeal---Delivery of possession of the demised premises during the pendency of appeal, which culminated into dismissal of appeal having become infructuous---Validity---During the pendency of appeal against ejectment, where the tenant had already left the demised premises by delivering its possession to the landlord/landlady, the appeal had to be dismissed having become infructuous--- Constitutional petition was dismissed, in circumstances.

Wadho Akhara Trust, Karachi v. Ghafooran and others 1993 SCMR 2360 rel.

Muhammad Farooq for Petitioner.

S.M. Haider for Respondent.

Sheheryar Qazi and S. Arshad Hussain Naqvi, Addl. A.G. for the State.

Order

2025 Y L R 1152

[Sindh]

Before Shamsuddin Abbasi, J

Malik Saghir Ahmad Nazir---Applicant

Versus

The State and 4 others---Respondents

Criminal Misc. Application No. 1227 of 2024, decided on 14th February, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 173---Penal Code (XLV of 1860), Ss. 392, 397 & 34---Robbery, robbery or dacoity with attempt to cause death or grievous hurt, common intention---Quashing of FIR proceedings---Pursuant to the registration of FIR, investigation followed and in due course the police submitted a report under S.173, Cr.P.C against four accused including the present petitioner---Judicial Magistrate took cognizance of the offence and accepted the challan---Petitioner sought quashing of order passed by the Judicial Magistrate on the grounds that the impugned order was illegal, unlawful, improper, incorrect and based on evasive findings and without application of conscious judicial mind---Validity---Admittedly, the respondent No.2 was an Advocate by profession---Per claim of the applicant, he was Assistant Engineer in K-Electric---On the fateful day applicant along with his team was on official duty assigned to prevent theft of electricity when he received information that K-Electric cable was dumped in an open plot so while calling police on helpline he reached the pointed plot and was busy in capturing photographs from his mobile phone---Some persons including the respondent No.2 came there, beat the applicant and forcibly took him to a Dera where too he was subjected to torture and then was handed over to police---Record was suggestive of the fact that after registration of the case, the Investigating Officer produced the applicant in Court where per claim of the applicant, respondent No.2/ complainant along with other Advocates was already present, and they beat the applicant in police custody within Court premises---Record further reflected that applicant obtained protective bail from the High Court and along with his counsel went to the Court of Judicial Magistrate for submission of certain documents where respondent No.2/ complainant with the help of his companion lawyers again mishandled the applicant and his counsel, who saved his life by taking shelter in the chamber of the Judicial Magistrate---Such incident was reported to Police Station, Sessions Judge, as well as Registrar of the High Court---During investigation, the Investigating Officer confirmed that the applicant was on official duty and he called police through its helpine---Medical Certificate also suggested that applicant was beaten and maltreated---Based on such material, the previous Investigating Officer prepared his report and recommended disposal of case under "B" class, but instead of accepting such report, the high-ups of police ordered transfer of investigation perhaps due to influence of complainant and thereafter the second Investigating Officer submitted challan and cognizance was taken by Court---Certain aspects regarding basic/constituting elements of offence or version of the applicant collected during already conducted investigation could not be taken into consideration either by the second Investigating Officer or by the Judicial Magistrate while accepting the report under S.173, Cr.P.C., wherein an Advocate was complainant, which raised significant implications for the legal profession---One version put-forth by the applicant and the other taken by the complainant, if seen in juxtaposition, then the version of the applicant, in the background of previous investigation, seemed to be true whereas the plea taken by the complainant seemed to be based on mala fide intention and prima facie reflected ulterior motives and did not appeal to reason---Bare perusal of the impugned order, revealed that the same had been passed in haste without application of conscious judicial mind, overlooking peculiar facts and circumstances of the case, which could not be sustained in the eyes of law---Application was allowed, impugned order was set-aside and proceedings emanating from the FIR were quashed.

Mehmood Akhtar Qureshi for Applicant.

Sarfraz Ahmed Metlo and Zia-ur-Rehman Tanoli along with Respondent No. 2.

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

Date of hearing: 10th February, 2025.

Order

Shamsuddin Abbasi, J.---The facts as reflected from the record are that Respondent No.2 Muhammad Nizar son of Aziz ur Rehman lodged FIR No.543 of 2024 at Police Station Ittehad Town, District Keamari, Karachi, for offences punishable under Sections 392, 397 and 34, P.P.C against applicant and three others stating therein that on 19.10.2024 four persons, duly armed with pistol, after breaking open the door of his house, forcibly entered the premises and by show of force on the pointation of pistol robbed Rs.200,000/- and went outside. Per complainant, they raised commotion, which attracted Mohallah people, who caught hold one person at spot, who disclosed his name as Malik Saghir whereas the others made their escape good on motorcycle.

1. Pursuant to the registration of FIR, the investigation was followed and in due course the police submitted a report under Section 173 Cr.P.C. against four accused including the applicant present on bail, Muhammad Shahzad in custody and two absconders. The learned Judicial Magistrate-VI, Karachi (West) took cognizance of the offence and accepted the challan vide order dated 19.11.2024, which is reproduced below:-

"Challan accepted as offence under section 397 Cr.P.C. is exclusively triable by Hon'ble Court of Sessions. Let the R and P be sent to concerned court after completion of legal formalities. Issue NBW for absconded accused. Issue P.O. for accused in custody. Issue summon to accused Malik Sagheer".

1. Aggrieved by the aforesaid order, the applicant has preferred this Crl. Misc. Application.

2. It is contended on behalf of the applicant that the impugned order is illegal, unlawful, improper, incorrect and based on evasive findings and without application of conscious judicial mind. It is next submitted that the learned Magistrate while accepting the report under Section 173, Cr.P.C. has failed to thoroughly examine the findings of the previous Investigating Officer, who in the first instance released the applicant under Section 497(ii), Cr.P.C. It is also submitted that the applicant is serving as Assistant Engineer in K-Electric and on the day of incident he along with his team was on field duty in connection with theft of electricity and disconnection of illegal hooks in the area of Ittehad Town, Block-A when he received information that K-Electric cable is dumped in an open bounded plot and on instructions of Line Manager made a call to police on 15 and reached the pointed place and while he was waiting for police, the respondent No.2 along with his accomplices came there, snatched his mobile phone as well as office card and also gave him beating and thereafter took him to a Dera, where he was subjected to severe beatings and then handed over his custody to police and showing his influence lodged FIR fabricating a false story. Per learned counsel, the complainant, who is an Advocate by profession, in order to save his skin from theft of K-Electric cable, has involved the applicant levelking false allegation and the learned Magistrate without considering the report of the previous investigating officer and peculiar facts and circumstances of the case unlawfully took cognizance of the offence. Lastly it was submitted that the learned Magistrate did not consider the material produced in investigation report and accepted the challan without assigning valid and cogent reasons, hence the impugned order same is liable to be set-aside.

3. The learned counsel for the respondent No.2, on the other hand, has refuted the submissions of learned counsel for the applicant and submitted that the applicant along with his companions has forcibly entered his house, armed with pistols, and committed robbery of Rs.200,000/- and was apprehended at spot whereas his companions managed to escape. It is next submitted that the learned Magistrate took cognizance of the offence on the basis of material collected during investigation and such findings are just and proper, hence calls for no interference.

4. The learned Additional Prosecutor General has supported the impugned order and submitted that the impugned order is based on fair evaluation of record and no illegality, infirmity of material irregularity has been pointed out by the learned counsel for the applicant and prayed for dismissal of the instant revision application.

5. Heard arguments of respective parties and perused the entire material available on record with their able assistance.

6. Admittedly, the respondent No.2, is an Advocate by professions. Per claim of the applicant, he is Assistant Engineer in K-Electric and on the fateful day he along with his team was on official duty assigned to prevent theft of electricity when he received information that K-Electric cable is dumped in an open plot so while calling police on 15 he reached the pointed plot and was busy in capturing photographs from his mobile phone when some persons including the respondent No.2 came there, gave beatings and forcibly took him to a Dera where too he was subjected to torture and then was handed over to police. The record is suggestive of the fact that after registration of the case, the investigation was entrusted to ASI Naeem Abbas, who produced the applicant in Court where per claim of the applicant, respondent No.2/complainant along with other Advocates was already present, they have beaten the applicant in police custody within Court premises. Record further reflects that applicant Malik Saghir obtained protective bail from this Court and along with his counsel went to the Court of learned Magistrate for submission of certain documents where respondent No.2/ complainant with the help of his companion lawyers again mishandled the applicant and his counsel, who save his life by taking shelter in the chamber of the learned Magistrate and such an incident was reported to P.S. City Court, Sessions Judge, Karachi (West) as well as Registrar of this Court. I am also cognizant of the fact that during investigation, the I.O. confirmed that the applicant was on official duty and he called police through 15. Medical Certificate available on record also suggests that he was beaten and maltreated. Based on such material, the previous Investigating Officer prepared his report and recommended disposal of case under "B" class, but instead of accepting such report, the high-ups of police ordered transfer of investigation perhaps due to influence of respondent No.2 /complainant and thereafter the second Investigating Officer submitted challan and cognizance was taken by Court.

7. It is a well settled that purpose of "investigation" is to dig out the truth regarding the crime/ occurrence and put up the same before Court of competent jurisdiction. It is the duty of the Investigating Officer to collect entire relevant material of the occurrence irrespective of the fact that such material favours prosecution or accused. He is also under obligation to collect the evidence honestly, justly and fairly for bringing the truth on record not only to build up the case of complainant with evidence enabling the Court to record conviction but also enabling Court for reaching to a just and fair decision. In the case in hand, the first Investigating Officer after thorough investigation found the applicant innocent and submitted relevant report before his high ups seeking approval for disposal of case in "B" class, but the same was declined and fresh investigation was ordered and pursuant to that order the investigation was entrusted to SIO Nasir Khan, who after recording further statement of complainant and witnesses submitted a charge sheet against the applicant and others, which was accepted by the learned Magistrate through impugned order dated 19.11.2024. It is, however, felt that certain aspects regarding basic/ constituting elements of offence or version of the applicant collected during already conducted investigation could not be taken into consideration either by the second Investigating Officer or by the learned Magistrate while accepting the report under Section 173, Cr.P.C., wherein an Advocate is complainant, which raises significant implications for the legal profession. A Division Bench of this Court in an unreported judgment dated 07.11.2024, passed in C.P. No.D-2230 of 2024, took serious note of Advocates coming forward as complainant and observed as under:-

"Pursuant to that order, AIGP Legal has submitted a report showing therein the chart of FIRs lodged by advocates from 01st January 2024 to 31st October 2024. Being relevant, the same is reproduced herewith:-

"REPORT OF FIRs LODGED BY THE ADVOCATES / LAWYERS AGAINST (A) THEIR CLIENTS (B) THIRD PERSONS (C) POLICE OFFICIALS FROM 01.01.2024 TO 31.10.2024

| | | | | | | | --- | --- | --- | --- | --- | --- | | S.No | District | Against Their Clients | Against Third Persons | Against Police Officials | Total | | 1 | CIA | - | - | - | - | | 2 | CTD | - | - | - | - | | 3 | East | 3 | 73 | 1 | 77 | | 4 | Malir | 3 | 106 | 2 | 111 | | 5 | Korangi | 2 | 31 | 1 | 34 | | 6 | West | - | 8 | 1 | 9 | | 7 | Central | 1 | 14 | - | 15 | | 8 | South | - | 32 | - | 32 | | 9 | City | 5 | 185 | 4 | 194 | | 10 | Keamari | - | - | - | - | | 11 | Hyderabad | - | 26 | 1 | 27 | | 12 | Dadu | - | 1 | 2 | 3 | | 13 | Thatta | - | 6 | - | 6 | | 14 | Badin | - | 2 | - | 2 | | 15 | Jamshoro | - | 9 | - | 9 | | 16 | Matiari | - | - | - | - | | 17 | T.A. Yar | - | 1 | - | 1 | | 18 | T.M. Khan | - | 6 | - | 6 | | 19 | Sujawal | - | - | - | - | | 20 | Sukkur | - | 6 | - | 6 | | 21 | Ghotki | - | 17 | 1 | 18 | | 22 | Khairpur | - | 20 | - | 20 | | 23 | Larkana | - | 9 | - | 9 | | 24 | Kamber | - | 9 | - | 9 | | 25 | Shikarpur | - | - | - | - | | 26 | Jacobabad | - | 2 | - | 2 | | 27 | Kashmore | - | - | - | - | | 28 | Mirpurkhas | - | - | 1 | 1 | | 29 | UmerKot | - | 2 | - | 2 | | 30 | Tharparkar | - | - | - | - | | 31 | SBA | - | 10 | - | 10 | | 32 | Sanghar | - | 6 | - | 6 | | 33 | Naushero Feroz | - | - | - | - | | | Total | 14 | 581 | 14 | 609 |

3. Upon examining the above-referenced details, it becomes evident that advocates have lodged a total of 609 FIRs, comprising 14 FIRs against their own clients, 14 against police officials, and an overwhelming 581 against third parties. Annexure "B" outlines the current procedural status of these cases; particularly, in a majority of instances, police reports have been filed under "A" and "C" Class categories, while investigations in others FIRs remained pending. This extensive volume of FIRs raises significant concerns, especially given that even members of the legal profession are among the complainants, citing threats of dire consequences, incidents of theft, and cheque dishonor as grounds for registration. A substantial portion of these FIRs involve allegations under Sections 506-B and 489-F of the Pakistan Penal Code. This substantial influx of FIRs suggests a troubling scenario showing smoke on the screen, indicating either a failure of the state to safeguard the legal community or a potential misuse of their professional privileges by these individuals.

1. It is imperative to take immediate steps to address the proliferation of motivated FIRs that are tainted with malice against innocent individuals, while ensuring that genuine FIRs against actual offenders are not hindered. Failure to do so may result in a situation where it becomes too late to rectify the injustices, leading to irreparable harm and a complete breakdown of the rule of law.

2. In light of the foregoing circumstances, this Court is cognizant of the fact that the present matter bears significant implications for the legal profession, particularly concerning the regulation of professional conduct and ethics, which fall within the domain of the Bar Council. Therefore, this matter is hereby referred to the Executive Committee of the Sindh Bar Council with directives to scrutinize the ethical dimensions outlined in the Code of Conduct, specifically regarding the registration of FIRs by advocates against their own clients under various sections of law. The Committee is tasked with investigating any misuse of professional privileges by lawyers throughout the Sindh region, with particular attention to occurrences in Karachi, to uphold the dignity and integrity of the legal fraternity. Should the Committee identify any instances of malicious or unwarranted FIRs filed against innocent individuals, it is further instructed to initiate appropriate disciplinary actions through the relevant disciplinary committee. This measure aims to safeguard ethical standards and prevent any conduct that may undermine the honor of the legal profession.

6. Additionally, the Inspector General of Police (I.G.P.) Sindh is directed to ensure the maintenance of law and order, guaranteeing equal treatment for all citizens regardless of profession, caste, creed, or community. The I.G.P. Sindh shall further ensure that police officers uphold the decorum of the police force while providing safety and security to all citizens within their jurisdiction, including the Courts. Moreover, the I.G.P. Sindh shall ensure that any FIRs lodged with malicious intent against innocent individuals are thoroughly investigated, while also safeguarding the registration and progression of legitimate FIRs against actual offenders.

1. In view of the reasons stated above, the present petition is hereby disposed of in accordance with these directives.

Office shall send copy of this order to Vice Chairman and Secretary of Sindh Bar Council for compliance".

1. The version one put-forth by the applicant and others taken by the respondent No.2 /complainant, if seen in juxtaposition, then the version of the applicant, in the background of previous investigation, seems to be true whereas the plea taken by the respondent No.2/ complainant seems to be based on mala fide intention and prima facie reflects ulterior motives and does not appeal to reasons.

2025 Y L R 1223

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio, J

Habibullah---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-151 of 2023, decided on 23rd January, 2024.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 375-A, 377 & 34---Gang rape, sodomy, common intention---Post-arrest bail , grant of---Further inquiry --- Dubious role of prosecution witnesses---Allegation against the applicant was that he, along with another accused , forcibly took away the complainant's son (victim) on the force of pistol ,and the victim later disclosed to the prosecution witnesses about the act of sodomy committed with him by both accused---Pertinently, though both prosecution witnesses were present at the scene, yet they did not attempt to restrain the accused--- Subsequently, the applicant / accused left the victim near a bank---Surprisingly, both prosecution witnesses were actively searching for the victim at the same location and did not set the criminal law into motion---Further , as per the narrative of said witnesses , applicant/accused dropped the victim from their motorcycle and managed to escape easily--Said scenario raised questions as to why both prosecution witnesses did not prevent the applicant / accused from escaping once again---Continuous presence of said witnesses during all such period at the same place when the applicant / accused was being taken away and left suggested further inquiry into guilt of accused--- Bail was granted to accused, in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 375-A, 377 & 34---Gang rape, sodomy, common intention---Post-arrest bail, grant of---Further inquiry---Severity of an offence---Evidence, requirement of---Discretion of Court---Allegation against the applicant was that he, along with another accused , forcibly took away the complainant's son (victim) on the force of pistol and the victim later disclosed to the prosecution witnesses about the act of sodomy committed with him by both accused---Severity of an offence alone is not sufficient ground to denya bail plea---The fundamental concept underlying bail is that the liberty of an innocent person should not be restricted until proven otherwise---Section 497(2) of the Criminal Procedure Code, 1898, establishes that for bail to be granted, the court must be convinced, based on the evidence presented, that there are reasonable grounds to believe that the accused is not guilty of an offence punishable with death or life imprisonment; this section also emphasizes that the court should consider whether there are sufficient grounds for further inquiry into the accused's guilt---Such further inquiry should indicate to the case's outcome and demonstrate or tend to show the accused's innocence---Bail, being a discretionary relief, requires the court to exercise its discretion fairly and judiciously---In the context of the court, the term "discretion" implies sound judgment guided by the law, aiming to alleviate the hardship faced by individuals---Bail should not be denied as a form of punishment---Bail was granted to accused, in circumstances.

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

----S. 497---Penal Code (XLV of 1860), Ss. 375-A, 377 & 34 --- Gang rape, sodomy, common intention---Post-arrest bail, grant of---Further inquiry---Negative DNA report---Allegation against the applicant was that he, along with another accused, forcibly took away the complainant's son (victim) on the force of pistol ,and the victim later disclosed to the prosecution witnesses about the act of sodomy committed with him by both accused---Upon examining the DNA report, it was evident that the DNA profile of victim did not match that of the applicant / accused ; thus, the medical record did not establish any connection between the applicant/accused and the alleged crime--- Bail was granted to accused, in circumstances.

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

----S. 497(2)---Penal Code (XLV of 1860) , Ss. 375-A, 377 & 34---Gang rape, sodomy, common intention---Post-arrest bail, grant of---Further inquiry ---Allegation against the applicant was that he, along with another accused , forcibly took away the complainant's son (victim) on the force of pistol and the victim later disclosed to the prosecution witnesses about the act of sodomy committed with him by both accused---Applicant/ accused had been in custody since his arrest---Though the report under S.173 of the Cr.P.C had been submitted to the trial court, yet there has been no progress in the trial so far---Continued detention of the applicant/accused foran indefinite period would not serve any meaningful purpose for the prosecution---Applicant / accused had presented a case warranting further inquiry, as outlined in S.497(2) of the Cr.P.C.---Bail was granted to accused, in circumstances.

Abdul Ghaffar v. The State and others 2016 SCMR 1523 ref.

Afzal Karim Virk for Applicant.

Dhani Bakhsh Mari, Assistant P.G Sindh for the State.

Ghulam Nabi Meo for the Complainant along with Complainant.

Order

Amjad Ali Bohio, J.---Applicant/accused Habibullah son of Abdul Khan, seeks post-arrest bail in FIR No. 96/2023, registered at PS Digri under Sections 375-A, 377, and 34 P.P.C, as his bail application was dismissed through order dated 01.12.2023 passed by the learned Additional Sessions Judge-II/GBV/Anti-rape Court Mirpurkhas.

1. Allegedly, the complainant's son Shahzaib was forcibly taken away on the force of pistol by the accused Habibullah accompanied by Imam Bux alias Machhar, both belonging to the Bharmani caste. Incident is alleged to have been witnessed by PWs Sajid Ali and Abid Ali on the road leading towards Tando Ghulam Ali. After some time the accused left the victim Shahzaib, at the National Bank in Digri, where same PWs Sajid Ali and Abid Ali were already present. The victim disclosed to the witnessed about the act of sodomy committed against him by both accused. This incident was subsequently conveyed to the complainant, and on , 09.09.2023, the complainant's husband brought the victim to PS Digri. Following this, the victim was referred for his medical examination, leading to the lodging of the FIR on 10.09.2023.

2. The counsel for the applicant/accused argued that the final medical report of victim Shahzaib, submitted by the Medical Officer at Taluka Hospital, Digri, in letter No.309 dated 03.11.2023 after receiving the DNA report, indicates that semen, blood, and clothing samples were sent to the Forensic and Molecular Biology Laboratory, Jamshoro and it was opined that these samples did not match with those of the applicant/accused, Habibullah, and Imam Bux alias Machhar. This fact according to him is unrebutted. Furthermore, the counsel asserted that the investigation has been concluded, and the applicant/accused is confined in jail. Consequently, he contended that there is no need for further investigation involving the physical custody of the accused. The counsel went on to argue that the prosecution's narrative appears questionable from the outset. According to him, the applicant/accused allegedly took away the victim in the presence of PWs Sajid Ali and Abid Ali, who despite being the victim's uncles, failed to resist or pursue the culprits. This raised suspicions, especially considering that the same witnesses were present at the location where the applicant/accused supposedly left the victim after committing the alleged offence of sodomy. It is asserted that it is quite unusual that PWs Sajid Ali and Abid Ali did not attempt to apprehend the culprits and allowed them to escape freely. In support of his argument, he relied upon the case laws reported as 2016 SCMR 1523 [Supreme Court of Pakistan], 2023 PCr.LJ Note 19 [Islamabad], 2018 PCr.LJ Note 132 [Sindh], 2019 MLD 1168 [Lahore] and 2021 PCr.LJ 1209.

3. The counsel representing the complainant and the learned Assistant Prosecutor General (A.P.G) opposed the bail application on the grounds that the applicant/accused is named in the FIR, facing allegations of committing the offense of sodomy against victim Shahzaib. They further argue that proper order has been passed for dismissal of bail application.

4. Prima facie as per the details mentioned in the FIR, both accused allegedly used pistols to take the victim on their motorcycle, heading towards Tando Ghulam Ali road. It is pertinent to mention that PWs Sajid Ali and Abid Ali though were present at the scene, yet they did not attempt to restrain the accused. Subsequently, the accused left the victim near the National Bank in Digri. Surprisingly, PWs Sajid Ali and Abid Ali were actively searching for the victim at the same location and did not set the criminal law into motion. Further as per their narrative applicant/accused dropped the victim from their motorcycle and managed to escape easily. This scenario raises questions as to why PWs Sajid Ali and Abid Ali did not prevent the accused from escaping once again. The victim then disclosed to both witnesses about the alleged act of sodomy committed by the accused at bushes in the lands of Mir Khan Bahadur.

5. The continuous presence of PWs Sajid Ali and Abid Ali during all such period at the same place when the accused was being taken away and left suggests for further inquiry. Moreover, following the arrest of the accused, the Medical Officer at Taluka Hospital, Digri, conducted medical examination. The applicant/accused provided blood samples and a sealed parcel of clothes for Forensic DNA testing through L.U.M.H.S Laboratory, Jamshoro. Upon receiving the DNA report dated 30.10.2023 (vide letter No.LUMHS/FML/731/2023), the Medical Officer at Taluka Hospital, Digri, in a letter dated 03.11.2023 (No.309), submitted the final Medico legal report which is included in the police papers. This report revealed that the DNA profile of victim Shahzaib did not match that of the applicant/accused. Consequently, it is argued that the case against the applicant/accused necessitates further inquiry. Moreover, the accused is in judicial custody and is no more required for further investigation.

2025 Y L R 1234

[Sindh (Sukkur Bench)]

Before Muhammad Iqbal Kalhoro, J

Ghulam Farooq and others---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. S-623 and S-655 of 2023, decided on 1st December, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 497 & 498---Penal Code (XLV of 1860), Ss. 324,337A(vi), 337F(iv), 114, 147, 148, 149 & 504---Attempt to commit qatl-i-amd, shajja-i-munaqillah, ghair-jaifah mudihah, abettor present when offence is committed, rioting armed with deadly weapons, unlawful assembly, intentional insult with intent to provoke breach of the peace---Bail, refusal of---Severe /several injuries to multiple persons of complainant party---One applicant/accused was said to have caused hatchet injuries to a prosecution witness including, an injury under S.337A(vi), P.P.C, punishable for ten years---Second applicant/accused was said to have caused injuries to the complainant, and one of the injuries was under S.337F(iv), P.P.C, punishable for five years; while third applicant/accused had caused an injury to a lady of complainant party which injury had been opined by Medico-legal Officer as falling under S.337A(vi) P.P.C, punishable for ten years---Nature of injuries and the number of injured showed that applicants appeared at the spot with a pre-determined mind and inflicted severe and several injuries to at least four persons of complainant side---Not only individual role but collective approach of the applicants was a reflection of their intention to cause as much damage to the complainant party as possible and in exercise of such intention they severely beat the complainant party---Investigating Officer (IO) had also concluded in investigation that applicants were guilty of the offence and had referred them for a trial---No doubt, there was admitted enmity between the parties, but it cut both ways----If the complainant had a motive to implicate the accused on account of the enmity, then the accused also had a cause to wrong the complainant party---Therefore, unless the dispute was finally decided by the Trial Court, nothing favourable could be opined as far as role of the applicants was concerned, who appeared to be connected with the crime---As for delay, the record showed that on the very day complainant had approached the police and got a letter for treatment of the injured---It was the police who did not perform is duties and did not register the FIR there and then, and let the complainant leave the Police Station and come back after four days---Complainant had further explained that initially they were referred to one government hospital and from there they were sent to another Civil Hospital for treatment and after getting treatment, he lodged the FIR---Injuries caused by applicants to injured, prima facie, were serious in nature, punishable upto ten years in most cases---Case had recently been challaned, therefore, it would be in the interest of justice to let the Trial Court frame the charge and examine material witnesses first---Applicants were seeking bail without showing any mala fide on the part of complainant to falsely implicate them---Concession of pre-arrest bail was only for innocent persons, who from the face of record appeared to be falsely implicated in non-bailable offences---Applicants were not entitled for concession of pre/ post-arrest bail---Bail was refused to the applicants, in circumstances.

Amanullah G. Malik for Applicants along with applicants (In Criminal Bail Application No. S-623 of 2023).

Zulfiqar Ali Jatoi, Additional P.G for the State.

Gul Mir Jatoi for the Complainant.

Order

Muhammad Iqbal Kalhoro, J.---As per FIR, there is a dispute between parties over agricultural land. On 13.06.2023, when complainant, his sons Nadeem Ahmed, Rehmatullah and Naheed were present on their land, situated near village Warayo within jurisdiction of P.S, Tamachani, applicants along with other co-accused accosted them. No sooner they came than they started abusing complainant party and asked them to vacate the land. When complainant party resisted, applicants, who were armed with different weapons including hatchet, lathies and pistols attacked complainant party injuring four PWs, namely, Naheed, Nadeem Ahmed, Rehmatullah and Amanullah (the complainant himself). On cries of complainant party, the accused party left and thereafter complainant approached police for a letter, from there along with injured went to Government Hospital, Bagerji for treatment and from where they were referred to Civil Hospital, Sukkur. After getting first aid and treatment, complainant on 18.06.2023 appeared at P.S and registered the FIR.

1. Learned counsel for applicants submits that applicants are innocent and have falsely been implicated in this case; that there is on-going dispute between the parties over agricultural land and in fact it was free fight between the parties in which both parties received injuries, but at the instance of Nekmards, who assured them for a resolution of dispute, accused party did not approach the police for registration of FIR, whereas on 4th day, complainant party got FIR registered against applicants. Learned counsel has relied upon case law reported as Toto v. State (2017 PCr.LJ 239) to support his arguments.

2. Learned counsel for complainant and Additional P.G have opposed bail to the applicants on the ground that all three applicants have been assigned specific roles, hence they are not entitled to bail.

3. I have considered submissions of parties and perused material available on record. Applicant Ghulam Farooq is said to have caused hatchet injuries to PW-Rehmatullah causing him, amongst others, an injury under section 337A(vi) P.P.C, punishable for ten years, applicant Muhammad Siddique is said to have caused injuries to complainant Amanullah, one of the injury amongst others, is under section 337F(iv) P.P.C punishable for five years, applicant Rizwan has caused an injury to Naheed opined by Medico-legal Officer as 337A(vi) P.P.C, punishable for ten years. The nature of injuries and the number of injured show that applicants appeared at the, spot with a pre-determined mind and inflicted severe and several injuries to at least four PWs. Not only individual role but collective approach of the applicants is a reflection of their intention to cause as much damage to the complainant party as possible and in exercise of such intention in fact severally beat the complainant party.

2025 Y L R 1254

[Sindh]

Before Irfan Saadat Khan and Arshad Hussain Khan, JJ

Wamiq Muhammad Yousif through Attorney---Appellant

Versus

Xith adj, (EAST) Karachi through its order and another---Respondents

1st Appeal No. 59 of 2021, decided on 21st March, 2023.

Civil Procedure Code (V of 1908)---

----Ss.96, 151 & O.XXXVII, Rr.1, 2 & 4---Stay of execution proceedings---Negligence of party and his counsel---Effect---Non-appearance of party and failure to obtain leave to defend in a recovery suit---Effect---Upon receiving of notice of recovery suit while in jail appellant filed application for leave to defend through his counsel---Application was dismissed for non-prosecution and suit was decreed ex parte---Upon initiating of auction proceedings in execution proceedings, appellant filed application for stay of execution proceedings through his attorney taking plea of his unawareness of the proceedings and attributed the delinquency to his counsel---Validity---Appellant despite having knowledge of the suit did not pursue the matter diligently, consequently his leave to defend application, though filed under wrong provision, was dismissed for non-prosecution---Appellant never inquired about the case (suit) from his erstwhile counsel and further after coming to know about the negligent conduct of his counsel, he took no action against him---Parties are bound by the acts and omissions of their counsel and in case of any negligence on the part of the counsel, the parties cannot claim that they are not to be held responsible---When a matter is dismissed or any adverse order is passed, valuable rights accrue in favour of the other side which cannot be taken away unless a justifiable, strong or sufficient cause is shown---When a defendant fails to appear or obtain a leave to appear and defend in response to a summons served through Form No.IV, provided in Appendix 'B' to C.P.C., or where the court refuses to grant leave, the allegations in the plaint shall be deemed to be admitted and the plaintiff shall be entitled to a decree and in such an event, the court shall pass a decree in favour of the plaintiff against the defendant---Appeal was dismissed in limine, in circumstances.

Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore 1970 SCMR 76; Khalid Saigal v. National Investment Trust Ltd and 2 others 1984 CLC 182; Zahid Ahmed v. Deputy Director Adjudication and 2 others PLD 2006 Kar. 252; Zulfiqar Ali v. Lal Din and another 1974 SCMR 162; Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others 1974 SCMR 223; Haji Ali Khan and Company Abbottabad and 8 others v. M/s. Allied Bank of Pakistan Limited, Abbottabad PLD 1995 SC 362; Naeem Iqbal v. Mst. Zarina 1996 SCMR 1530 and Col. (Retd.) Ashfaq Ahmed and others v. Sh. Muhammad Wasim 1999 SCMR 2832 rel.

Moazam Ali for Appellant.

Khaleeq Ahmed for Respondent No. 2.

Date of hearing: 14th March, 2023.

Judgment

Arshad Hussain Khan, J.---The appellant by means of this Appeal under Section 96 C.P.C. has assailed order dated 09.07.2021 passed by XIth Additional District Judge, Karachi (East) in Summary Execution No.1/2018, arising out of Summary Suit No.27/2017 whereby application under Section 151 read with Order XXXVII Rule 4 C.P.C seeking stay of the execution proceedings filed by the present appellant/judgment debtor was dismissed.

1. Concisely, the facts giving rise to the present appeal are that respondent No.2 [plaintiff] filed Suit No.27/2017 under Order XXXVII Rules 2 and 3 C.P.C for recovery of amount of Rs.10,000,000/- against the present appellant. Upon filing of that suit notices and summons of the case were issued through all modes including Superintendent, Central Prison, Karachi, as the appellant at the relevant time was confined to Central Prison, Karachi. Pursuant to the notice, present appellant was produced by the concerned jail authorities before the court, who received copy of the plaint. Thereafter, the counsel on behalf of the appellant / defendant filed Vakalatnama in the case and application under Section 10 of the Financial Institutions [Recovery of Finances] Ordinance, 2001, however, said application was subsequently, dismissed for non-prosecution. Thereafter, respondent No.2 pursuant to the directions filed affidavit in ex-parte proof and since the stance taken by respondent No.2 had gone unrebutted, as such, keeping in view the evidence produced by respondent No.2, the suit was decreed in the sum of Rs.10,000,000/- along with costs of the suit. However, prayer with regard to the profit at the prevailing rate from 11.03.2016 till realization of the decretal amount was declined.

Thereafter, Execution Application bearing No.01/2018 was filed by respondent No.2, which was allowed, vide order dated 10.01.2019. Subsequently, the property of the judgment debtor [present appellant] was put on auction, however, during pendency of the auction proceedings present appellant filed the application seeking stay of the execution proceedings. The executing court after hearing learned counsel for the parties dismissed the said application, vide order dated 09.07.2021, which is impugned in the present proceedings.

1. Learned counsel for the appellant while reiterating the contents of the memo. of appeal has contended that the order impugned in the present proceedings is not sustainable as the same is bad in law and facts both in as much as the trial / executing court has failed to apply her judicious mind and also failed to consider the fact that the judgment and decree as well as the orders, which were passed in the suit / execution proceedings, the appellant was behind the bars. It is also contended that the trial / executing court also failed to take into account that the previous counsel appeared on behalf of the appellant has failed to discharge his professional obligations / duties under the Legal Practitioner Act as he has failed to proceed with the matter diligently. It is also argued that unprofessional/negligent attitude / conduct of the appellant's erstwhile counsel can be gauged from the fact that he initially filed application under Section 10 of the FIO, 2001, instead of leave to defend application under the Civil Procedure Code and subsequently, he also failed to proceed with the said application resulting which the said application was dismissed for non-prosecution and the judgment and decree were passed by the trial court and for satisfaction of the said decree execution was filed, which too was decided ex-parte. However, when the appellant came to know the above decisions, he immediately filed application under Section 151 C.P.C read with Order XXXVII Rule 4 C.P.C for staying the execution proceedings. It is also contended that the trial /executing court has miserably failed to consider the contention of the appellant in its true perspective as such it was unjustified in passing the impugned order. It is also contended that the trial / executing court while passing the judgment and decree has failed to take into account that the original Promissory Notes were never produced before the trial court. It is also contended that the impugned order suffers from material irregularities and illegalities as such the same is liable to be set-aside. It is also contended that the impugned order is purely based on technicalities and it is against just and fair dispensation of justice. Lastly, he has contended that the impugned order may be set-aside and the instant appeal may be allowed as prayed.

2. On the other hand, learned counsel for respondent No.2 while arguing the matter has contended that the impugned order is in accordance with law and equity and does not warrant any interference by this Court. It is also contended that the appellant despite having knowledge neither contested the suit nor the execution proceedings as such, at this belated stage, when the auction proceedings are under process; filing of application for stay of the same is untenable. It is also contended that if the appellant has any grievance against his previous counsel, who did not proceed with the matter diligently, he may file the proceedings against the advocate under the applicable law. Lastly, he has prayed that the appeal being devoid of any merit may be dismissed.

3. We have heard learned counsel for the parties, perused the record and considered the relevant laws.

Indeed the proceedings under Order XXXVII rules 2 and 3 C.P.C. are summary in nature and where the defendant does not submit an application for leave to appear and defend within the statutory period of 10 days, as envisaged by Article 159 of the Limitation Act from the date of service, the allegations in the plaint shall be deemed to have been admitted and the suit so instituted shall be decreed. We are also aware of the fact that at the same time the court ceased of the matter is not relieved of the responsibility to see and ensure before decreeing the suit that the person proceeded against was not only served but was also made to understand the nature of the proceedings. It was pre-eminently in this context that the Legislature in its wisdom prescribed a form for the plaint and a form for the summons to be served on the defendant of such proceedings.

1. In the present case, it is an admitted position that the appellant despite having knowledge of the suit did not pursue the matter diligently, consequently his leave to defend application, though filed under wrong provision, was dismissed for non-prosecution. There is nothing available on the record, which could show that the appellant has ever inquired about the case (suit) from his erstwhile counsel and further after coming to know about the negligent conduct of his counsel what action he has taken against him. The record is also silent with regard to his action upon notice of the execution proceeding. It is a well settled principle of law that the parties are bound by the acts and omissions of their counsel, and in case of any negligence on the part of the counsel, the parties cannot claim that they are not to be held responsible. Another well-settled principle of law is that when a matter is dismissed or any adverse order is passed, valuable rights accrue in favour of the other side which cannot be taken away unless a justifiable, strong or sufficient cause is shown. In this regard, reliance can be placed on the cases of Muhammad Sharif Khan and 4 others v. Board of Revenue, West Pakistan, Lahore, [1970 SCMR 76], Khalid Saigal v. National Investment Trust Ltd and 2 others, [1984 CLC 182] and Zahid Ahmed v. Deputy Director Adjudication and 2 others [PLD 2006 Karachi 252], Besides above, the Supreme Court of Pakistan in the case of Zulfiqar Ali v. Lal Din and another [1974 SCMR 162], inter alia, held that mere fact that a litigant engaged a counsel on his behalf does not absolve him of all responsibilities; it was as much his duty as that of the counsel engaged by him to see that the case was properly and diligently proceeded. If he engaged a counsel who was lacking in his sense of responsibility to the court, it is he who should suffer and not the other side.

In another case of Muhammad Nawaz and 3 others v. Mst. Sakina Bibi and 3 others [1974 SCMR 223], the Supreme Court held that the initial obligation was of the petitioners to enquire about the decision in their appeal, or to arrange with their counsel to inform them about the decision if it is announced in their absence; and, even if it be assumed that their counsel neglected to inform them that per se would not be a sufficient ground for condonation of delay, when a valuable right has accrued to the respondents 1 to 3. We are not satisfied that the petitioners were diligent or took due care in the matter.

1. Moreover, the record reflects that instant appeal was filed by the appellant through his attorney as he was confined to the prison. When the counsel was asked that if present appeal can be filed by the appellant through his attorney during his judicial custody then why the judgment and decree passed in the suit were not appealed against by the appellant through his attorney during his confinement, to which learned counsel has failed to give any plausible justification.

2025 Y L R 1321

[Sindh]

Before Naimatullah Phulpoto, J

Syed Jehanzaib and another ---Appellant

Versus

The State---Respondent

Criminal Jail Appeals Nos. 716 and 857 of 2019, decided on 10th December, 2024.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Admission of accused before police---Inadmissible evidence---Accused were charged for committing murder of the brother of complainant and his wife---Case of prosecution was that both accused were arrested by police under S.54, Cr.P.C and during interrogation, they admitted that they had committed murders of deceased in their house---Case was already registered on 29.11.2014 at Police Station under Ss. 302/109/34, P.P.C, against unknown persons and dead bodies were shifted to the hospital on 28.11.2014---House where incident had occurred was jointly pointed out by both the accused---Admission by both accused before Police was inadmissible in evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Last seen evidence not corroborated by independent evidence---Accused were charged for committing murder of the brother of complainant and his wife---Prosecution had extensively relied upon the testimony of tenant in a portion of the house of deceased---According to evidence of said witness, he had seen accused in the house of deceased on 22.11.2014 but according to medical evidence both deceased were done to death in between 24.11.2014 to 28.11.2014 which clearly showed that there was gap of two days, which was not explained---Said witness had not specifically mentioned first or second floor of the house where he had seen accused on 22.11.2014---Record showed that said witness was residing with his family in the said house, but prosecution had failed to examine wife of the said witness for the purpose of corroboration---Prosecution had also heavily relied upon the evidence of another witness, who deposed that on 23.11.2014, he had gone to a shrine to pray for his job, and it was morning time; that several persons were already there, when he heard gunshot report from adjacent house; that after 45 minutes of firing, when he was waiting outside the shrine, he saw that a person sitting on motorcycle and another person came out of the house of the deceased, and one of them was carrying a box in his hand; that after 5/6 days, he came to know from the people who had gathered at Shrine that husband and wife residing in the house adjacent to shrine from where he had heard gunshot had been killed and culprits had been arrested by the police; that after hearing this news, he went to Police Station to see the culprits---Said witness narrated this story to the Investigating Officer, who recorded his S.161 Cr.P.C statement on 15.03.2015---According to said witness, he appeared before the Magistrate on 17.03.2015 and identified accused persons in the identification parade---In the present case testimonies of witnesses on the aspect of last seen were extremely tenuous and lacked independent corroboration---Tenant of deceased/witness had not mentioned the date at which he had seen accused in the house of deceased persons---Said witness had not specifically mentioned about ground or first floor of the house where he had seen accused standing on the relevant date---Other witness was a chance witness, as he failed to plausibly explain his presence at the shrine on the day of incident---Said witness after hearing gunshot report did not narrate incident to anyone and remained calm for 04 months---Circumstantial evidence of last seen was not corroborated by independent evidence---Appeal against conviction was allowed, in circumstances.

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

----Art. 22---Test identification parade---Object---Main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime---Test identification parade should be conducted as soon as possible after the arrest of the accused, which becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test of identification parade.

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

----Ss. 302(b), 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Test identification parade, conducting of---Infirmities---Accused were charged for committing murder of the brother of complainant and his wife---In the present case identification parade was conducted through two witnesses---Record showed that accused "J" was previously known to witness/tenant of deceased as deposed by said witness in his evidence---Thus, identification parade held through said witness was without any necessity---As regard to the identification parade of accused persons through other witness, it had come in evidence that said witness came to know on 15.03.2015 that accused were confined at Police Station and was involved in the murders of the deceased persons---Said witness went to said police station on 15.03.2015 to see the accused---Therefore, possibility could not be ruled out that said witness had seen both the accused at police station before holding identification parade---Hence, it was clear that holding of identification parade through said witness had no evidentiary value---Unfortunately, Magistrate failed to follow the guidelines, requirements and safeguards necessary for holding identification parade---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109 & 34---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Withholding material evidence---Effect---Accused were charged for committing murder of the brother of complainant and his wife---Record showed that sisters of deceased female had identified dead body of their sister on 28.11.2014, but they were given up by the prosecution during trial---Said sisters of the deceased female were material prosecution witnesses---Under Article 129(g) of Qanun-e-Shahadat, 1984, adverse inference could be drawn to the effect that had they been produced by the prosecution at trial, they would not have supported the case of prosecution---Appeal against conviction was allowed, in circumstances.

Raisat Ali and another v. The State and another 2024 SCMR 1224 rel.

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

----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention---Appreciation of evidence---Recovery of weapons of offence and stolen property--- Inconsequential---Accused were charged for committing murder of the brother of complainant and his wife---During interrogation, both accused admitted before police that on 23.11.2014, they committed murders of deceased persons by means of firearm and knife---On admission of accused, he led police party and produced pistol on 12.03.2015 in presence of mashirs from railway crossing---Same accused again produced ornaments of gold and laptop taken from the house of deceased on 16.03.2015 from a graveyard in presence of mashirs---Record transpired that the articles were produced by the accused from a railway crossing and from graveyard, which were open spaces, accessible to all---In order to prove the case within the ambit of Art. 40 of Qanun-e-Shahadat, 1984, the prosecution was bound to prove that a person accused of any offence, in custody of Police Officer, had conveyed an information or made a statement to the police, leading to discovery of new fact concerning the offence, which was not in the prior knowledge of the police---Such information or statement should be in writing and in presence of witnesses---In the present case, entry/statement was not recorded before leaving police station---Prosecution had failed to establish recoveries on the pointation of accused---Therefore, recoveries of pistol/articles belonging to the deceased persons on the pointation of accused without such entries in the record, in the circumstance of the case, were unreliable---Moreover, there were material contradictions in the evidence of Investigating Officer and mashir on the point of recovery of pistol on the pointation of accused---Moreover, there was also overwriting in date of preparation of mashirnama of recovery of pistol---After recovery of pistol it was not deposited in Malkhana of police station---Prosecution had failed to prove safe custody and safe transmission of pistol to Ballistic Expert before the Trial Court---Case of prosecution was that accused produced laptop belonging to the deceased persons but said laptop was not sent to the expert for opinion---Article 164 of Qanun-e-Shahdadat, 1984 specifically permits the use of any evidence that might have become available because of modern devices or techniques and Art. 165 overrides all other laws---So the recovery was inconsequential---Appeal against conviction was allowed, in circumstances.

Bahlol Khan Kasi v. Azamtullah Kasi and another 2020 PCr.LJ 1633; Mursal Kazmi alias Qamar Shah and another v. The State 2009 SCMR 1410 and Muhammad Asif v. The State 2017 SCMR 486 ref.

(g) 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 would be entitled to its benefit not a matter of grace and concession but as a matter of right.

Tariq Pervez v. The State 1995 SCMR 1345 rel.

Iftikhar Ahmed Shah, Muhammad Nasir, Ms. Shaista Gul and Raja Zeeshan for Appellants.

Muhammad Iqbal Awan Additional Prosecutor General Sindh for the State.

Mehmood A. Qureshi for the Complainant.

Dates of hearing: 3rd and 10th December, 2024.

Judgment

Naimatullah Phulpoto, J.--- Appellants Syed Jehanzaib and Syed Murtaza Jillani were tried by learned I-Additional Sessions Judge Karachi East for offences punishable under sections 302/109/34 P.P.C. After regular trial, vide judgment dated 16.09.2019, both appellants were convicted under Section 302(b) P.P.C as Tazir for committing Qatl-amd of Badar-ul-Hassan and his wife Mst.Razia Sultana and sentenced to imprisonment for life on two counts and were directed to pay compensation in terms of section 544-A Cr.P.C of Rs.200,000/- each to be paid to the legal heirs of deceased persons. In case of default, they were ordered to undergo 06 months S.I. All sentences were ordered to run concurrently. The appellants were however, extended the benefit of Section 382-B Cr.P.C. Appellant Syed Murtaza Jillani was also tried for offence under section 23(1)(a) of Sindh Arms Act 2013 and after regular trial vide judgment dated 05.09.2019, appellant was convicted under Section 25 of Sindh Arms Act 2013 and sentenced to 07 years R.I with fine of Rs.10,000/-. In case of default, appellant was ordered to undergo 03 months' S.I. However, appellant was extended benefit of section 382-B Cr.P.C.

1. The case of the prosecution is in a narrow compass and is briefly encapsulated hereafter. It is a case of un-witnessed murders in the house of deceased persons between 24.11.2014 to 28.11.2014 where Badar-ul-Hassan and his wife Mst. Razia Sultana were done to death and their dead bodies were recovered by the police on 28.11.2014 from house and shifted by police to hospital for postmortem examination and reports. FIR of the incident was lodged by brother of deceased namely Syed Afsar Vehaj at PS Al-Falah Karachi on 29.11.2014. Both accused were arrested at Hyderabad as suspects under section 54 Cr.P.C on 04.03.2015. During interrogation, accused admitted the commission of these murders. Accused were arrested in this case and during investigation, they led police to the house of deceased persons on 04.03.2015. During investigation, accused Syed Murtaza prepared to produce pistol used by him in the commission of the offence and led police party and mashirs to the railway crossing and produced unlicensed pistol concealed by him in a ditch in presence of mashirs on 12.03.2015. Said accused led police on 16.03.2015 and produced ornaments of gold belonging to the deceased persons and laptop concealed in the graveyard. I.O sealed articles in presence of mashirs and dispatched pistol to the Ballistic Expert for report. Positive report was received by the I.O. On the conclusion of the investigation, he submitted challan against the accused under Sections 302/109/34 P.P.C and under section 23(1)(a) of Sindh Arms Act, 2013. At the trial, accused pleaded not guilty and claimed to be tried. Trial Court recorded evidence of 12 P.Ws. Thereafter, prosecution side was closed. Trial Court recorded statements of accused under Section 342 Cr.P.C at Ex.32 and 33, in which they denied the prosecution allegations. Accused declined to examine themselves on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations and did not lead evidence in their defence. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 16.09.2019 and 05.09.2019 convicted and sentenced the appellants as stated above. Hence, appellants filed appeals before this Court. Hence, through this common judgment, I intend to dispose of instant appeals.

2. The evidence produced before the Trial Court finds an elaborate mention in the judgment dated 16.09.2019. Therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition.

3. Mr. Iftikhar Ahmed Shah advocate for the appellants mainly contended that there is no direct evidence with regard to any aspect of the matter; that prosecution has miserably failed to establish unbroken convincing chain, which was to be proved, which would lead to the conclusion of the guilt and culpability of the appellants and which completely rules out the hypothesis of the innocence of the appellants. Mr. Shah has disputed authenticity of the last seen evidence furnished by P.W-07 Muhammad Amir and P.W-10 Azhar Hussain by the prosecution. Learned counsel for the appellants further submits that even if testimonies of P.Ws Muhammad Amir and Azhar Hussain relating to appellants and deceased persons being last seen together in the house is to be accepted, there is no proximity at all between the deceased being last seen in the company of the appellant Jahanzeb and the discovery of the dead bodies from the house. He further points out that not only is there no proximity of time, there is no proximity of place; that a test identification has no legal value in this case, because PW-10 Azhar Hussain had visited Police Station Model Colony on 15.03.2015 and on the said date both the accused were already confined at the said Police Station, possibility could not be ruled out that PW Azhar Hussain had seen accused at police station before identification parade. It is further contended that PC Hizqiel son of Anwar was made to stand in the row of dummies by the Civil Judge and Judicial Magistrate at the time of holding of identification parade, he was also posted at the said police station, it has been admitted by the I.O in his evidence. It is argued that P.Ws Mst. Nasreen and Mst. Parveen were present in the house of the deceased at the time of incident and had identified dead body of Mst. Razia Sultana as per inquest report dated 28.11.2014 at Ex. 13/B, but prosecution gave up both these ladies and withheld material evidence, non-examination of these material witnesses would be fatal to the prosecution. As regards to the recovery of pistol on the pointation of accused Syed Murtaza from railway crossing on 12.03.2015 is concerned, it is submitted that prosecution had failed to prove safe custody and safe transmission of the pistol to Ballistic Expert. Lastly, argued that prosecution had failed to prove its case against appellants beyond reasonable doubt. In support of the contentions, reliance is placed upon the cases Bahlol Khan Kasi v. Azmatullah Kasi and another (2020 PCr.LJ 1633), Mursal Kazmi alias Qamar Shah and another v. The State (2009 SCMR 1410) and Muhammad Asif v. The State (2017 SCMR 486).

4. Mr. Muhammad Iqbal Awan, Addl. P.G assisted by Mr. Mehmood A. Qureshi advocate for the complainant argued that prosecution has produced evidence of last seen, recovery of crime weapon, medical evidence and identification of accused through P.Ws Muhammad Amir and Azhar Hussain to connect accused in the commission of the offence. He further argued that PW Azhar Hussain had heard gunshot report in the house of deceased persons on 23.11.2014 when he was at the Shrine of Pir Sahab and had seen appellants on motorcycle at the door of deceased persons; that PW Muhammad Amir had seen accused Jahanzeb in the house of deceased persons before occurrence; that P.Ws Nasreen and Parveen were not material witnesses and non-examination of these witnesses would not be fatal to the case of prosecution. Addl. P.G further argued that both accused were picked up by P.Ws Muhammad Amir and Azhar Hussain in the identification parade. Learned A.P.G. argued that accused Syed Murtaza produced crime weapon before police during investigation, report of Ballistic Expert is positive and articles belonging to deceased were also produced by him. Lastly, argued that last seen evidence corroborated by other pieces of evidence is sufficient to maintain the conviction in the case.

5. I have heard learned counsel for the parties and re-examined the entire evidence.

6. The entire evidence of prosecution on which conviction of appellants has been based consists of the following pieces of evidence:

(i) Last seen evidence;

(ii) Recovery of crime weapon and articles belonging to deceased persons;

(iii) The medical evidence furnished by Dr. Aijaz Ahmed (PW-05) and Lady Dr. Nasreen Qamar (PW-06);

(iv) Identification parade of appellants/accused through P.Ws Muhammad Amir and Azhar Hussain;

(v) Positive report of the Fire-arm Expert.

MEDICAL EVIDENCE

1. According to Dr. Aijaz Ahmed (PW-05) on 28.11.2014 at 11:00 p.m., he conducted postmortem examination of Syed Badar-ul-Hassan and found one firearm injury on his person. Cause of death was cardio respiratory failure in the result of firearm injury on chest. Time between death and postmortem was 3 to 4 days. Dr. Nasreen Qamar (PW-06) stated that on 28.11.2014 at 9:00 p.m., she conducted postmortem examination of Razia Begum wife of Syed Badar-ul-Hassan and found 04 injuries on her person. Cause of death was head and face injuries by means of firearm and multiple wounds by means of sharp edged weapon. According to woman medical officer, Mst. Razia Sultana died of firearm injuries as well as injuries caused by sharp cutting weapon; time between death and postmortem was 3 to 4 days.

LAST SEEN TOGETHER EVIDENCE

1. As the present case has been structured exclusively on circumstantial evidence. Therefore, the same requires careful reappraisal of evidence to see as to whether all links in chain have been provided by the prosecution or there are missing links in the same. How evidence was procured at different stages and in what manner investigation was conducted. It is the case of prosecution that both accused were arrested by Hyderabad police under Section 54 Cr.P.C and during interrogation, they admitted that they have committed murders of Badar and Mst. Razia Sultana in their house at Karachi. Such case was already registered on 29.11.2014 at PS Al-Falah under sections 302/109/34 P.P.C against unknown persons and dead bodies were shifted to the Hospital on 28.11.2014. House where incident had occurred was jointly pointed out by both the accused. Such piece of evidence was inadmissible in evidence. Thereafter, most important circumstance which the prosecution has relied against the appellants is the last seen evidence of the deceased being last seen alive by P.W Muhammad Amir on 21.11.2014, in the house of deceased persons. In this regard, prosecution has extensively relied upon the testimony of PW-07 Muhammad Amir, tenant in a portion of the house of Badar. According to evidence of P.W-07 Muhammad Amir, he had seen accused Jahanzeb in the house of deceased on 22.11.2014 but according to medical evidence both deceased were done to death in between 24.11.2014 to 28.11.2014 which clearly shows that there was gap of two days without explanation. PW Muhammad Amir has not specifically mentioned first or second floor of the house where he had seen accused Jahanzeb on 22.11.2014. It has come on record that PW Muhammad Amir was residing with his family in the said house, but prosecution has failed to examine wife of the PW Muhammad Amir for the purpose of corroboration. According to PW Muhammad Amir, he had got telephone number of brother of deceased from one Basit when Badar did not attend his call but said Basit has also not been examined by the prosecution. Prosecution has also heavily relied upon the evidence of PW-10 Azhar Hussain. He has deposed that on 23.11.2014, he had gone to shrine of Peer Sahab situated at Al-Falah to pray for his job. It was morning time. Several persons were already there, he heard gunshot report from adjacent house. After 45 minutes of firing, when he was waiting outside the shrine, he saw that a person who was sitting on motorcycle and another person came out of the house of the deceased, he was carrying a box in his hand. PW-10 Azhar Hussain further deposed that he went inside Shrine to meet Peer Sahab, who advised him to come back after 5/6 days. It is stated that after 5/6 days, he came back and came to know from the peoples who had gathered at Shrine that husband and wife residing in the house adjacent to shrine from where he had heard gunshot report have been killed and culprits have been arrested by the police. After hearing this news, above named PW went to PS Model colony to see the culprits. He narrated story to the I.O, who recorded his 161 Cr.P.C statement on 15.03.2015. According to P.W Azhar Hussain, he appeared before the Magistrate on 17.03.2015 and identified accused Jahanzeb and Syed Murtaza in the identification parade.

2. In the present case testimonies of P.Ws Muhammad Amir and Azhar Hussain on the aspect of last seen is extremely tenuous and lacks independent corroboration. PW-07 Muhammad Amir has not mentioned the date at which he had seen accused Jahanzeb in the house of deceased persons. He had not specifically mentioned about ground or first floor of the house where he had seen accused Jahanzeb standing on the relevant date. Moreover medical evidence does not support his evidence. P.W Azhar Hussain was a chance witness, he failed to plausibly explain his presence at Shrine on the day of incident. PW Azhar Hussain after hearing gunshot report did not narrate incident to anyone and remained calm for 04 months. The proximity of the crime scene played a vital role but according to medical evidence time between death and postmortem examination of both deceased was 3 to 4 days. I, therefore, hold that circumstantial evidence of last seen is not corroborated by independent evidence. Conviction cannot be maintained on such weak type of evidence in a case involving capital punishment.

IDENTIFICATION PARADE

1. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midest of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witnesses of the crime. The identification proceedings are in the nature of tests, therefore, there is no provision for it in the Code of Criminal Procedure 1898 and Qanun-e-Shahadat Order 1984. It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test of identification parade. This is a very common plea of the accused and therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegations. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

In the present case, on 12.03.2015, I.O produced accused Jahanzeb for holding identification parade through PW-07 Muhammad Amir in Crime No. 252/2014 under section 302/109/34 P.P.C of PS Al-Falah. Identification parade was held and according to Magistrate, accused Jahanzeb was identified by PW-07 Muhammad Amir. Magistrate further stated that on 17.03.2015, I.O produced accused Jahanzeb and Syed Murtaza before him for holding identification parade through PW-Azhar Hussain in the above crime. It is stated that PW Azhar Hussain identified accused Jahanzeb and Syed Murtaza. Learned defence counsel cross-examined Magistrate at some length. It has come on record that accused Jahanzeb was previously known to PW Muhammad Amir as deposed by PW Muhammad Amir in his evidence at Ex.17. Therefore, identification parade held through PW-07 Muhammad Amir was without any necessity. As regards to the identification parade of accused persons through PW-10 Azhar Hussain is concerned, it has come in evidence that PW Azhar Hussain came to know on 15.03.2015 that accused are confined at PS Model Colony involved in the murders of the deceased persons. He went to said police station on 15.03.2015 to see the accused. Therefore, possibility could not be ruled out that PW Azhar Hussain had seen both the accused at police station before holding identification parade. Hence, it is clear that holding of identification parade through this witness had no evidentiary value. Unfortunately, Magistrate failed to follow the guidelines, requirements and safeguards necessary for holding identification parade.

Record reveals that PC Hizqiel was made one of the dummies, he was posted at PS Model Colony, where accused were already confined. This fact has been admitted by the I.O in his evidence. It may be observed that vital factor determinative of worth and value of test identification proceedings was effectiveness of the precautions taken before and during course of such proceedings which were designed to eliminate possibility of unjustified conviction, but in the present case necessary pre-cautions were not taken by concerned Magistrate.

1. From close scrutiny of the identification proceedings conducted by the Magistrate, I have no hesitation to hold that Civil Judge and J.M did not observe pre-cautions for holding identification parade as held in the case of Kanwar Anwaar Ali Special Judicial Magistrate (PLD 2019 S.C 488). Resultantly, sanctity of test identification parade is doubtful for the reasons that accused were already shown to witness Azhar Hussain in police station.

2. It is in evidence that PWs Mst. Nasreen and Mst. Parveen sisters of deceased Mst. Razia Sultana had identified dead body of Mst. Razia Sultana on 28.11.2014, they were given up by the prosecution during trial. Mst. Nasreen and Mst. Parveen were material prosecution witnesses. Under Article 129(g) of Qanun-e-Shahadat Order, 1984, adverse inference could be drawn to the effect that had they been produced by the prosecution at trial, they would not have supported the case of prosecution as held in the case of Riasat Ali and another v. The State and another (2024 SCMR 1224).

DISCLOSURE LEADING TO RECOVERY OF CRIME WEAPON AND ARTICLES BELONGING TO DECEASED PERSONS

1. PW-12 Inspector Muhammad Aslam Mughal I.O deposed that appellants were arrested as suspects under Section 54 Cr.P.C, they admitted before police that they have committed murders within the jurisdiction of PS Al-Falah. During interrogation, both accused admitted before police that on 23.11.2014, they committed murders of Badar and his wife Mst. Razia by means of firearm and knife. Accused Syed Murtaza prepared to produce pistol used by him in the commission of murders of both deceased. On his admission, he led police party and produced pistol on 12.03.2015 in presence of mashirs from Railway crossing Malir Halt. The same accused again prepared to produce ornaments of gold and laptop taken from the house of deceased on 16.03.2015 and produced the same from graveyard in presence of mashirs. Investigation Officer sealed weapons and other articles belonging to deceased persons. It appears that admission of accused Syed Murtaza before police regarding use of weapon and recovery of articles have been heavily relied upon by the trial Court. Under the law, admission during interrogation before police is inadmissible in evidence. Hence, such piece of evidence with regard to the admission of accused before police is excluded from consideration. Now, only there remains recoveries of pistol, ornaments of gold and laptop. It may be observed that the same were produced by the accused from railway crossing and from graveyard. It has come on record that these were open spaces, accessible to all. In order to prove the case within the ambit of Article 40 of Qanun-e-Shahadat Order 1984, the prosecution was bound to prove that a person accused of any offence, in custody of police officer, has conveyed an information or made a statement to the police, leading to discover of new fact concerning the offence, which is not in the prior knowledge of the police. Such information or statement should be in writing and in presence of witnesses but in the present case, entry/statement was not recorded before leaving police station. Prosecution has failed to establish recoveries on the pointation of accused. Therefore, recoveries of pistol/articles belonging to the deceased persons on the pointation of accused Syed Murtaza without such entries in the record, in the circumstance of the case were unreliable. Moreover, there are material contradictions in the evidence of I.O Inspector Muhammad Aslam Mughal and mashir Qamar Wahaj on the point of recovery of pistol on the pointation of accused Syed Murtaza. There is also overwriting in date of preparation of mashirnama of recovery of pistol. After recovery of pistol it was not deposited in Malkhana of police station. Prosecution had failed to prove safe custody and safe transmission of pistol to Ballistic Expert before trial Court. It is the case of prosecution that accused Syed Murtaza produced laptop belonging to the deceased persons but said lap top was not sent to the expert for opinion. Article 164 of Qanun-e-Shahadat Order, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques and its Article 165 overrides all other laws. So the recovery is inconsequential.

2. P.W Inspector Muhammad Aslam Mughal further deposed that he dispatched the clothes of deceased Badar and Mst. Razia Sultana on 10.12.2014 to the chemical examiner for analysis, positive report was received which he produced in evidence at Ex.31, which reflects that clothes of the deceased were stained with human blood.

3. An important gap in the prosecution story has been caused by the failure of the investigative agency to obtain the blood groups of the deceased persons. There is no evidence at all with regard to their blood grouping or whether it matched the blood stains on the exhibits which were sent for forensic examination. The prosecution has also not cared to obtain the blood grouping of the deceased so as to rule out the possibility of blood on the clothes which were allegedly recovered being their own. In this background, the report of laboratory that human blood was found on the exhibits without any material evidence on other important aspects loses significance.

4. The prosecution has not proved a single circumstance leading to the murders of Badar and Mst. Razia Sultana beyond reasonable doubt. As discussed above, the investigating agency has not even attempted to investigate and identify the motive for commission of offence.

5. A finding of guilt cannot be based on a presumption. Before arriving at an inference that the appellants have committed an offence, existence of materials therefore ought to have been found. No motive for committing the crime was identified which, in the facts and circumstances of the case, was relevant. How the links in the chain of the circumstances led to only one conclusion that the appellants and the appellants alone were guilty of commission of the offence has not been spelt out by the learned trial Judge.

2025 Y L R 1341

[Sindh (Mirpurkhas Bench)]

Before Khadim Hussain Soomro, J

Muhammad Haroon---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-22 of 2024, decided on 25th July, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 496-A, 375-A, 506(1) & 355---Gang rape, criminal intimidation---Bail, refusal of---Principal accused---Sufficient incriminating material, availability of ---No doubt FIR was delayed by one year and 20 days, but the victim had clarified in her statement under S.164 of the Criminal Procedure Code , 1898, that due to severe fear induced by the petitioner /accused, she shifted from Mirpurkhas to the Province of Punjab, thereby explaining the delay---In her statement, the victim had fully implicated the petitioner / accused for commission of offences --- In rape cases, the victim's statement is sufficient to connect the accused with the offence as it is primary piece of evidence, which serves as a first-hand account of the event from the prospects of the victim ---No mala fide on the part of the complainant or victim to implicate the petitioner falsely in the present case, had been pointed out---Although the victim was unmarried, yet according to her medical report the hymen of the victim was absent---Regarding absence of marks of violence on the private part of the victim required deeper appreciation of evidence which was not warranted at bail stage --- Forensic examination of recovered cell phone containing the photograph and the videos of the victim showed that no editing was found in the video ---SIM of the recovered mobile phone was though not registered in the name of petitioner / accused but was in the name of his (petitioner's) son---Punishment for the alleged offence included death, life imprisonment, or imprisonment for life, along with a fine, thus, it fell within the prohibitory clause of S.497 Cr.P.C---Bail application, was dismissed, in circumstances.

Mushtaq Ahmed and others v. The State 2007 SCMR 473 ref.

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

---- S. 497 --- Penal Code (XLV of 1860 ), Ss. 496-A, 375-A, 506(1) & 355 --- Gang rape , criminal intimidation --- Bail , refusal of --- Accused suffering from disease that did not pose threat to his life---Plea of the petitioner / accused was that he was suffering from a disease called "Myasthemia gravis" (UZWAT KI KAMZORI)---Record revealed that in order to ascertain the severity of the petitioner's illness and its impact on his life a Special Medical Board was convened --- As per findings of said Board , it was determined that the petitioners' incarceration did not pose a threat to his life --- Bail application, was dismissed, in circumstances.

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

---- S. 497 --- Penal Code (XLV of 1860 ), Ss. 496-A, 375-A, 506(1) & 355---Gang rape, criminal intimidation---Bail, refusal of---Rule of consistency ---Plea of the petitioner / accused was that since two co-accused persons including a lady , were granted pre-arrest bail, the petitioner / accused was similarly entitled to such relief---Validity ----Importantly , the roles of the co-accused persons differed significantly from that of the principal accused as they were involved as facilitators to the main accused, whereas the petitioner had a distinct and principal role in the case--- Bail application, was dismissed, in circumstances.

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

---- S. 497 --- Penal Code (XLV of 1860), Ss. 496-A, 375-A, 506(1) & 355 --- Gang rape , criminal intimidation --- Bail , refusal of --- Video of victim , circulating of --- Record revealed that nude videos of victim were uploaded on social media from the account of one lady --Widespread distribution of such video has the potential to intensify the stigma resulting in feeling social exclusion , scapegoating and rejection from acquaintances ---Consequences may affect the victim in both her personal and professional life --- Furthermore, victim may encounter obstacles in her pursuit of school, job, or other possibilities as result of the stigmatized image or psychological distress caused from the incident ---Bail application, was dismissed, in circumstances.

Mir Pervez Akhter Talpur for Applicant.

Afzal Kareem Virk for the Complainant.

Dhani Bakhsh Mari, Assistant Prosecutor General, Sindh for the State.

Date of hearing: 22nd July, 2024.

Order

Khadim Hussain Soomro, J.---By means of instant Criminal Bail Application, the applicant/ accused has sought post-arrest bail after dismissal of his post-arrest bail application No. 26/ 2024, arising out of Crime No. 34/2023 of P.S. Women Mirpurkhas, registered under sections 496-A, 375-A, 506(i), 355 P.P.C. by learned Additional Sessions Judge-II/G.B.V./Anti-Rape Court, Mirpurkhas, vide order dated 11-01-2024.

1. Brief facts of the prosecution case are that the complainant, Muhammad Asad, lodged his FIR on 04-12-2023 at 1630 hours against the applicant/ accused, Muhammad Haroon, stating therein that with facilitation of co-accused Mst. Nimra, the headmistress of a private school, on 24-11-2022 at 0900 hours, took victim Jaweria, the sister of the complainant, in his car to the room of Grid Station Tando Jan Muhammad, where the applicant/ accused committed rape with her and recorded her video on cell phone. On 17-12-2022, he again committed Zina with the victim at the same place after blackmailing her while co-accused Nimra and security guard Waseem facilitated the applicant/accused in the commission of rape; hence this bail application.

2. It is pertinent to mention here that arguments of learned counsel for the applicant/ accused were heard on 08-07-2024 wherein he mainly contended that FIR is delayed about one year and 10 days, for which no plausible explanation has been given; that there is no medical certificate available on record which corroborate the version of the victim; that according to the prosecution, the applicant is being accused of committing rape and recording a video of the incident; however police found that recovered cell phone was not registered in his name; that there is glaring contradictions in the F.LR. and 164 Cr.P.C statement of the victim; that there is no independent witness who corroborate the complainant's version; that the co-accused, who were the main facilitator of the accused i.e. Nimra and Waseem, were granted pre arrest bail by the learned trial court; that during investigation I.O neither collected cell phone of the victim nor those to her parents, which could establish communication between accused and the victim; that according to the opinion of the Special Medical Board, the applicant/accused is suffering from "MYSTHENIA GRAVIS" and requires treatment that cannot be administered within a jail. The board has advised surgery, which cannot be performed within the confines of a prison. Today, the matter is fixed for arguments of learned A.P.G and learned counsel for the complainant.

3. Counsel for the complainant has submitted that the applicant/accused is nominated in the FIR with the specific role of committing Zina with the victim; that there is no conflict between the FIR and 164 Cr.P.C statement of the victim, however, in FIR there is only precise information of a cognizable offence whereas in 164 Cr. P.C statement the victim has given details of every event, that during the course of the investigation, the cell phone was recovered from the house of the applicant/accused on his pointation, and the same was sent to the Expert, who has reported that video is not edited one; that the medical evidence supports the ocular version of the victim; that there is no any previous enmity between parties; that role of co-accused Waseem and Nimra is completely distinguished and different from that of present applicant/ accused hence the rule of consistency is not applicable. Lastly, he prayed for the dismissal of the instant bail application. In support of his contentions, he has relied upon case laws, i.e. 2020 M.L.D. 2075, 2008 PCr.LJ 227, 1994 PCr.LJ 1040 and 2021 PCr.LJ 195.

4. Learned A.P.G adopts the arguments as advanced by counsel for the complainant. He also relied upon case law, i.e. 2023 YLR 1027, 2016 P Cr. L J 1888, 2011 YLR 1744, 2000 SCMR 150 and two unreported case laws.

5. In rebuttal, counsel for the applicant/ accused submits that the SIM of the cell phone was registered in the name of one Naveed, who has not been joined as accused during the course of the investigation; that I.O has also failed to collect the cell phone of the victim in ander to establish that there was communication between the applicant/accused and victim, which makes the case of prosecution highly doubtful and one of further inquiry. He lastly prayed for a grant of bail.

6. I have heard counsel for both parties and perused the material available on record.

7. No doubt FIR is delayed by one year and 10 days, but the victim has clarified in her statement under Section 164 of the Criminal Procedure Code that due to severe fear induced by the applicant/accused, she shifted from Mirpurkhas to the Province of Punjab, thereby explaining the delay. In her statement, the victim has fully implicated the present applicant/accused for the commission of the present offence. In rape cases, the victim's statement is sufficient to connect the accused with the offence as it is a primary piece of evidence, which serves as a first-hand account of the event from the prospects of the victim. The applicant's counsel failed to point out any mala fide on the part of the complainant or victim to implicate him falsely in this case. In this respect, reliance is placed on the case of Mushtaq Ahmed and others v. The State (2007 SCMR 473).

8. During the course of the investigation, the victim was medically examined. Although the victim is unmarried, according to the medical report, the hymen of the victim was absent. As far as the absence of marks of violence on the private part of the victim is concerned, it is quite a deeper appreciation of evidence which is not warranted at the bail stage.

9. The I.O. recovered a cell phone containing the photograph and the videos of the victim from the applicant/accused's house on his piontation. The mobile phone was sent to a forensic expert for examination, who reported that no editing was found in the video. The counsel emphasized that the SIM of the recovered mobile phone was not registered in the name of the applicant/accused but in the name of one Naveed, who is the son of the applicant.

10. Another aspect of the case is that the applicant is allegedly suffering from a disease which is called "MYSTHENIA" (UZWAT KI KAMZORI). To ascertain the severity of the applicant's illness and its impact on his life, a Special Medical Board was convened. As per the findings of the Special Medical Board, it was determined that the applicant's incarceration does not pose a threat to his life. The relevant paragraph of the report of the Special Medical Board is reproduced as under:-

After discussion, the Chairman and Members of Special Medical Board are of unanimous opinion that, "Accused/U.T.P. Muhammad Haroon son of Safdar Khan Rajput Patient's stay at jail is not detrimental to his life"

1. The punishment for the alleged offence includes death, life imprisonment, or imprisonment for life, along with a fine. The case also falls within the prohibitory clause of section 497 Cr.P.C. For the sake of convenience, section 375-A P.P.C. is reproduced as under:

[375A. Gang rape. Where a person is raped by one or more persons constituting a group or acting in furtherance of a common intention. Each of those persons shall be guilty of the offence of gang rape and shall be punished with death or for imprisonment for the remainder period of natural life or imprisonment for life and fine.]

1. The counsel for the applicant argued that since co-accused Nimra and Waseem were granted pre-arrest bail, the applicant is similarly entitled to such relief. However, it is important to note that the roles of the co-accused differ significantly from that of the principal accused. The co-accused were involved as facilitators to the main accused, whereas the applicant had a distinct and principal role in the case.

2025 Y L R 1355

[Sindh]

Before Salahuddin Panhwar and Jan Ali Junejo, JJ

Danish---Appellant

Versus

The State---Respondent

Criminal Appeal No. 717 of 2024, decided on 10th February, 2025.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Discrepancy in the prosecution case---Scope---Prosecution case was that 1480-grams chars was recovered from the possession of accused---Recovery witness deposed that his duty time was from 07.00 am to 07.00 pm and he was on patrolling duty and during patrolling at 01.00 pm, he was called back at Police Station---Accordingly, in the cross-examination recovery witness deposed that, he did not remember the cell number from which he received the call for visiting Police Station---Moreover, said witness stated that as per spy information, one person was selling "Charas" but as per the prosecution case no purchaser was found---Said witness deposed that Investigating Officer firstly prepared memo. of arrest and thereafter, sealed the property, whereas, in cross-examination he admitted that in the Mushir Nama, Investigating Officer firstly sealed the property and then wrote Mushir Nama---Complainant testified that the time 04.00 pm mentioned in the body of the memo. of arrest and recovery was overwriting---Said discrepancy casted significant doubt on the credibility of the evidence and undermined the prosecution's assertions---Circumstances established that the prosecution had utterly failed to prove its case against the appellant---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Safe custody of recovered substance not proved---Prosecution case was that 1480-grams charas was recovered from the possession of accused---Prosecution witness/Head Constable testified that he received case property from Investigating Officer in evening time at about 8:30 PM on 05-03-2021; that Investigating Officer again took property from him on 06-03-2021 for depositing some to Chemical Examiner and he again returned to him in evening on the same day and Investigating Officer took the property on 08-03-2021 in morning time---Prosecution had failed to provide a satisfactory explanation for three days delay during which the sample was unaccounted for due to lack of documentation or eye-witness testimony to clarify the whereabouts of the evidence during such period; this created a significant risk of tampering which could not be overlooked---Circumstances established that the prosecution had utterly failed to prove its case against the appellant---Appeal against conviction was allowed, in circumstances.

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

----S. 9(c)---Possession of narcotic substance---Compromised chain of safe custody of recovered substance---Effect---Scope---Failure to maintain a secure and verifiable chain of custody necessitated acquittal, as the prosecution could not prove the integrity of the evidence---Absence of a secure and documented chain of custody severely undermined the prosecution's case---Compromised chain of custody and the failure to ensure the secure transmission of evidence, meant that the prosecution had not satisfied the burden of proof---As a result, the accused should be acquitted of all charges as the evidence failed to meet the requisite standard of proof beyond reasonable doubt.

Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhwa 2019 SCMR 2004 rel.

(d) 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 at the time of arrest and recovery---Prosecution case was that 1480-grams chars was recovered from the possession of accused---Incident took place at a place surrounded by population, but no independent witness had been associated for arrest and recovery which was clear violation of the provisions of Section 103 Cr.P.C.---Investigating Officer had failed to discharge his duties in the manner as provided under the law---Investigating Officer was well aware of the fact that no independent and private person was associated by the complainant to act as mashir of arrest and recovery, therefore, he was under obligation to make positive efforts to arrange an independent witness while visiting the place of incident, but no such indication was available on record---Circumstances established that the prosecution had utterly failed to prove its case against the appellant---Appeal against conviction was allowed, in circumstances.

(e) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creates a reasonable doubt in a prudent mind, its benefit must be given to the accused not as matter of grace or concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Nadeem Ahmed Azar for Appellant.

Ali Haider Saleem, Additional Prosecutor General along with SIP Saleem Akhtar, CRO Branch for the State.

Date of hearing: 3rd February, 2025.

Judgment

Jan Ali Junejo, J.---Through instant appeal, Appellant has assailed his conviction and sentence recorded by learned I-Additional Sessions Judge/Special Court/Model Trial Court, Karachi Central, by judgment dated 08.10.2024, passed in Sp. Case No.291 of 2021, arising out of Crime No.84 of 2021 for offence under Sections 6, 9(c) CNS Amended Act, 2022 registered with P.S Gulbahar, Karachi. On conclusion of trial, Accused was found guilty for committing the offence under Section 6 of Control of Narcotic Substances Act, 1997, however, by taking lenient view the learned trial Court convicted and sentenced the Appellant/Accused under Section 265-H(2) Cr.P.C for committing the offence under Sections 6, 9-b of Control of Narcotic Substances Act, 1997, to suffer S.I for ten (10) years with fine of Rs.500,000/- (rupees five lac) and in case of default to pay the fine, he was ordered to suffer S.I for 30 days more. However, benefit of Section 382-B Cr.P.C. was extended to the Appellant.

1. Prosecution story unfolded in the FIR is that the police party headed by SI Riaz Ahmed of PS Gulbahar, Karachi was busy in patrolling for suppression of crime and during the patrolling they received spy information that one person is selling chars behind Qureshi Colony gate, opposite Lyari Expressway Haji Mureed Goth Gulbahar Karachi. On such information, they reached at the spot on 05.03.2021 at 1600 hours and apprehend one person in suspicious condition on the pointation of spy and apprehended him, who disclosed his name as Danish son of Zaheeruddin and during his personal search three slabs of chars, out of them two slabs were wrapped in white color foil and one slab was wrapped in pink color foil, were recovered from inside blue color plastic shopper, which was weighed through digital scale and found 1480 grams, so also Rs.5,500/- were also recovered from him. The recovered chars was seized on the spot and sealed accordingly.

2. After completing the investigation, challan was submitted against the accused under the above referred sections. Then, trial court framed charge against him at Exh.4, to which Appellant pleaded not guilty, as recorded in his plea at Exhibit 4/A. The prosecution examined the following witnesses:

• PW-1 ASI Rasheed Ahmed (Exh.5), who produced Memo. of Arrest and Recovery (Exhibit-5/A) and Memo. of Site Inspection (Exhibit-5/B).

• PW-2 IO/SIP Ali Sher (Exh.6), who produced Entry No.24 dated 5.3.2021 (Exhibit-6/A), Entry No.25 dated 5.3.2021 (Exhibit-6/B), four pictures (Exhibit-6/C), Entry No.28 dated 5.3.2021 (Exhibit-6/D), Entry No.31 5.3.2021 (Exhibit-6/E), CRO (Exhibit-6/F), Entry No.33 5.3.2021 (Exhibit-6/G), Entry No.7 dated 6.3.2021 (Exhibit-6/H), Entry No. 12 dated 6.3.2021 (Exhibit-6/I), Entry No.7 dated 8.3.2021 (Exhibit-6/J), Letter to Chemical Examiner for depositing of case property (Exhibit-6/K), Letter to In-Charge CRO (Exhibit-6/L), CRO record (Exhibit-6/M), Entry No.22 dated 8.3.2021 (Exhibit-6/N) and Chemical Report (Exhibit-6/O).

• PW-3 Complainant Riaz Ahmed (Exh.7), who produced Entry No. 13 5.3.2021 (Exhibit-7/A), FIR (Exhibit-7/B) and Entry No.22 dated 5.3.2021 (Exhibit-7/C).

• PW-4 HM Ali Akber (Exh.8), who produced Entry No.24/2021 (Exhibit-8/A).

After examining all relevant evidence, the prosecution concluded its case and closed its side of the evidence, as recorded in Exhibit-9. The trial court then recorded the statements of accused under Section 342 Cr.P.C (Exh.10), in which he denied all the allegations levelled against him by the prosecution and claimed that he has been falsely implicated in this case. He however did not examine himself on oath.

1. The learned trial Court after hearing learned counsel for the parties and assessment of evidence, by judgment dated 08.10.2024, convicted and sentenced the Appellant, as stated above. Hence the present appeal.

2. Learned counsel for the Appellant contended that the impugned judgment is illegal, unlawful, arbitrary and is unwarranted by law, so also, bad in law as well as on facts, and is not in consonance with the evidence which was brought on record and is liable to be set aside, thus the Appellant is entitled for acquittal. Learned counsel further contended that the appellant is innocent and he has been falsely implicated in this case, whereas, the learned trial Court has miserably failed to appreciate the evidentiary value of evidence and also failed to prove its case against the Appellant beyond shadow of doubt, as there are many discrepancies and contradictions in the statements of PWs. Learned counsel further contended that there is three days delay in sending the case property to the chemical examiner. Counsel next submitted that the Appellant is sole bread earner of his family and is of young age. Lastly, he prayed for acquittal of the Appellant.

3. On the other hand, learned Additional Prosecutor General Sindh, has fully supported the impugned judgment and contended that the trial Court has rightly convicted the accused on the basis of evidence brought on record by the prosecution. Hence, he prayed for dismissal of the present appeal.

4. We have heard learned counsel for both the parties and scanned the entire evidence available on record.

5. We have given our anxious considerations to the submissions of both the sides and perused the entire material available on record with their able assistance. PW-1 ASI Rasheed Ahmed deposed that his duty time was from 0700 to 1900 hours. He was on patrolling duty and during patrolling at 1300 hours, he was called back at PS. Accordingly, in the cross-examination he deposed that, he did not remember the cell number from which he received the call for visiting PS. Moreover, he also stated that as per spy information, one person was selling "Chars" but as per the prosecution case no any purchaser was found. SIP Ali Sher PW-2, EX-6 testified that he submitted a final challan before trial Court without collecting final chemical examiner report. In addition, he deposed that SIP firstly prepared memo. of arrest and thereafter, sealed the property. Whereas, in cross-examination he admitted that in the Mushir Nama, SIP firstly sealed the property and then wrote Mushir Nama. The PI- Riaz Ahmed, PW-3 at EX-7 testified that the time 1600 hours mentioned in the body of the memo. of arrest and recovery is overwriting. This discrepancy casts significant doubt on the credibility of the evidence and undermines the prosecutions assertions.

6. Ali Akber HC, PW-4, EX-8 testified that he received case property in the evening time at about 8:30 PM on 05-03-2021 and IO took property from him on 06-03-2021 for depositing to chemical examiner and he again returned to him in evening time on the same day and again IO took the property on 08-03-2021 in morning time. The prosecution has failed to provide a satisfactory explanation for 3 days delay which the sample was unaccounted for the lack of documentation or eye-witness testimony to clarify the whereabouts of the evidence during this period creates a significant risk of tempering which cannot be overlooked.

7. Established case law holds that failure to maintain a secure and verifiable chain of custody necessitates acquittal, as the prosecution cannot prove the integrity of the evidence. The absence of a secure and documented chain of custody severely undermines the prosecution's case. Given the significant inconsistencies in the witnesses' testimonies, the compromise chain of custody and the failure to ensure the secure transmission of evidence, the prosecution has not satisfied the burden of proof. As a result, the accused should be acquitted of all charges as the evidence fails to meet the requisite standard of proof beyond reasonable doubt. This assertion is supported by the principle established by the Honourable Apex Court of Pakistan in the case of Zahir Shah alias Shat v. The State through Advocate General Khyber Pakhtunkhwa (2019 SCMR, 2004), wherein, the Honorable Apex Court held that "This court has repeatedly held that safe custody and safe transmission of the drug from the spot of recovery till its receipt by the narcotics testing laboratory must be satisfactorily established. This chain of custody is fundamental as the report of the Government analyst is the main evidence for the purpose of conviction. The prosecution must establish that chain of custody was unbroken, unsuspicious, safe and secure. Any break in the chain of custody i.e. safe custody or safe transmission impairs and vitiates the conclusiveness and reliability of the report of the Government analyst, thus, rendering it incapable of sustaining conviction".

8. Also to note is that, the incident took place at Mureed Goth, near Qureshi colony gate Lyari Expressway surrounded by population, but no independent witness has been associated for arrest and recovery which is clear violation of the provisions of Section 103 Cr.P.C. It appears that investigating officer has failed to discharge his duties in the manner as provided under the law. It is noteworthy that investigating officer was well aware of the fact that no independent and private person was associated by the complainant to act as mashir of arrest and recovery, therefore, he was under obligation to make positive efforts and arrange an independent witness while visiting the place of incident, but no such indication is available on record.

2025 Y L R 1364

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Kabeer Ahmed Brohi---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-71 of 2024, decided on 15th April, 2024.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), S. 489-F---Dishonoring of cheque---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Applicant was nominated in the FIR however, it was registered with an inordinate delay of about 45 days, for which no plausible explanation has been furnished by the prosecution---Delay in criminal cases had always been deprecated---As far as the amount in question was concerned, the applicant had placed on record number of documents through his statement, which on perusal revealed that the parties had strained relations over business transactions hence, disputed the claim of each other---In view of earlier litigation between parties, the element of mala fide on the part of complainant could not be ruled out---Hence, the basic ingredients for grant of pre-arrest bail were very much attracted and applicable to the present case---Moreover, there were disputed facts which were to be thrashed out by the Trial Court after recording pro and contra evidence of the parties at trial; thus, the case against the applicant required further enquiry within the meaning of subsection (2) to S.497, Cr.P.C.---Consequently, bail application was allowed, in circumstances and interim pre-arrest bail was confirmed.

Ch. Saeed Ahmed Khalil v. The State and others 2023 SCMR 1712; Muhammad Imran v. The State and others 2023 SCMR 1152; Zafar Nawaz v. The State 2023 SCMR 1977; Abdul Rasheed v. The State and another 2023 SCMR 1948; Adnan Shehzad v. The State and another 2021 PCr.LJ 914; Shahid Hussain v. The State 2021 PCr.LJ Note 88; Muhammad Shabbir v. The State and others 2020 YLR Note 22; Muhammad Azhar Iqbal v. The State and another 2021 PCr.LJ 2189 ref.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 rel.

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

----Ss. 497 & 498---Bail---Observations made in bail orders---Scope---Such observations are tentative in nature, which should not influence the Trial Court, in any manner, while conducting trial of the case.

Abdul Rehman Mughal, along with Applicant (on bail).

Ali Anwar Kandhro, Addl. Prosecutor General, Sindh for the State.

Nadeem Ahmed Khoso, along with Complainant.

Date of hearing: 15th April, 2024.

Judgment

Muhammad Saleem Jessar, J.---Through instant bail application, Applicant Kabeer Ahmed son of Rahim Bux Brohi seeks his admission to pre-arrest bail in Crime No.109 of 2023, registered with Police Station City, Jacobabad, for offence punishable under Section 489-F, P.P.C.. The applicant filed anticipatory bail application bearing No.980/2023 before the Court of Sessions, which later was assigned to learned Additional Sessions Judge-I/MCTC, Jacobabad, who after hearing the parties as well as the Prosecutor declined such plea of the applicant through his order dated 24.01.2024; hence, instant bail application has been maintained.

1. Learned Counsel submits that prior to registration of FIR of this case the applicant Kabeer Ahmed had filed an application under sections 22-A and 22-B, Cr.P.C vide Cr. Misc. Application No.892/2023 before the Ex-Officio Justice of Peace, Jacobabad against the complainant of this case and others, which by order dated 13.09.2023 was disposed of; hence the complainant filed instant case against him. The main contention of learned Counsel for the applicant is that the applicant had purchased cars from the complainant and had delivered blank cheques to them as guarantee and that the applicant had paid entire amount to the complainant and had also returned files of the cars except three cars, but they have not returned the cheques issued by the applicant, as they intended to extort more amount from the applicant. He, therefore, submits that after furnishing surety before this Court the applicant has joined the trial before the trial Court and has never misused the concession. As far alleged cheque is concerned, per learned Counsel, the applicant has disputed the same by submitting documentary evidence, which is yet to be considered and determined by the trial Court; hence, in such a situation the case against the applicant requires further enquiry, therefore, prays for grant of bail application. In support of his contentions, he places reliance upon the cases reported as Ch. Saeed Ahmed Khalil v. The State and others (2023 SCMR 1712), Muhammad Imran v. The State and others (2023 SCMR 1152), Zafar Nawaz v. The State (2023 SCMR 1977), Abdul Rasheed v. The State and another (2023 SCMR 1948), Adnan Shehzad v. The State and another (2021 PCr.LJ 914), Shahid Hussain v. The State (2021 PCr.LJ Note 88), Muhammad Shabbir v. The State and others (2020 YLR Note 22) and Muhammad Azhar Iqbal v. The State and another (2021 PCr.LJ 2189).

2. Learned Addl. P.G. submits that since there are disputed facts, therefore, in the light of dicta laid down by the learned Apex Court in the case of Ahmed Shakeel Bhatti and others v. The State and others (2023 SCMR-1), he has no objection for grant of bail application.

2025 Y L R 1409

[Sindh (Hyderabad Bench)]

Before Amjad Ali Bohio and Dr. Syed Fiaz-ul-Hasan Shah, JJ

Irfan alias Jalal---Appellant

Versus

The STate---Respondent

Criminal Appeal No. D-42 of 2024, decided on 4th February, 2025.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Safe custody of case property in the police station and its safe transmission to the laboratory not proved---Prosecution case was that 2-kilogram charas was recovered from the possession of accused---In the present case, the evidence of the seizing officer complainant author of FIR, investigation officer custodian of store room (Malkhana) showed out that he had not produced the case property and he had not given direct evidence about production of case property---Said witness had just unrealistically identified case property when, it was de-sealed at the request of State Prosecutor---Nothing was brought on record as to how the case property had been presented in Trial Court except the attribution by the State Prosecutor---After perusal of evidence on record, it was found that the prosecution had failed to demonstrate safe custody of case property (contraband) to the police station as well as safe transmission of case property to the office of Chemical Analyst and its subsequent production before the Trial Court---No explanation or reason was available on record for failure to establish and follow accuracy in description, safe custody, it's safe transmission and subsequent safe return for production before the Court backed by the mandatorily required documentation---Such fact led to a conclusion that the defence had shattered the prosecution evidence---Appeal against conviction was allowed, in circumstances.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Non-association of private witnesses at the time of arrest and recovery---Effect---Prosecution case was that 2-kilogram charas was recovered from the possession of accused---Section 25 of the Control of Narcotics Substance Act, 1997 expounded that while making search and arrest, it was not absolute to avoid the provisions of S.103, Cr.P.C.---Seizing Officer had to meet the pre-conditionalities---There was an unhindered possibility to engage an independent person to witness the search and arrest of the appellant---Complainant in his examination-in-chief had suppressed the material factum about the presence of private person at the crime scene by stating that "no other private person was found there at that time so he carried out such exercise in presence of Official Mashirs on the spot" but in cross-examination he had conceded that "10/15 private persons were seen at a distance of around 150 meters"---Both the Mashirs had also admitted that "few persons were seen at a distance of about 100 paces, they were 10/12 in numbers"---Thus, there was a deliberate avoidance of obtaining an independent mashir on the free ride of S.25 of the Act, 1997, by false deposition by complainant---Appeal against conviction was allowed in circumstances.

Zardar v. The State 1991 SCMR 458; The State v. Muhammad Amin 1999 SCMR 1367 and PLD 2011 SC 241 rel.

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

----S. 9(c)---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Possession of narcotic substance---Appreciation of evidence---Material witness not presented for evidence---Effect---Prosecution case was that 2-kilogram charas was recovered from the possession of accused---Apparently, the Excise Constable was shown as a witness in the calendar of witness of the police report filed under S.173, Cr.P.C.---Said witness did not step into witness box for corroboration of recovery and evidence of witnesses of recovery for reason best known to the prosecution---Said fact would draw a negative inference under Art. 129(g) of the Qanun-e-Shahadat, 1984, that if he had come into witness box, he might have not corroborated the recovery and evidence of witnesses regarding contraband---Appeal against conviction was allowed, in circumstances.

Minhaj v. The State 2019 SCMR 326 rel.

(d) Criminal trial---

----Conviction---Scope---Sole eye-witness, evidence of---Conviction can be awarded to an accused on the basis of direct oral evidence of only one eye-witness if same is reliable, trustworthy and confidence-inspiring.

Muhammad Ehsan v. The State 2006 SCMR 1857 and Niaz-Ud-Din v. The State 2011 SCMR 725 rel.

(e) Criminal trial---

----Benefit of doubt---Principle---Single event creating reasonable doubt in the mind of a prudent person regarding an accused's guilt would entitle him to acquittal as a matter of right and not as clemency or grace.

Tariq Pervez v. The State 1995 SCMR 1345; Riaz Masih alias Mithoo v. The State 1995 SCMR 1730; Muhammad Akram v. The State 2009 SCMR 230 and Hashim Qasim and another v. The State 2017 SCMR 986 rel.

Bhooro Bheel for Appellant.

Shahzado Saleem, Additional P.G Sindh for the State.

Date of hearing: 4th February, 2025.

Judgment

Dr. Syed Fiaz-ul-Hasan Shah, J.---The Appellant Irfan alias Jalal has filed present Criminal Appeal under section 48 of Control of Narcotic Substances Act, 1997 read with section 410 of Criminal Procedure Code, 1898, against the Judgment of conviction dated 13-02-2023 passed by learned First Additional Sessions Judge / Special Judge, Control of Narcotic Substances Act at Mirpurkhas in Special Case No. 49/ 2022 (Re: The State v. Irfan alias Jalal) which is arising out of Crime No.07/ 2022 under section 9(c) of the Control of Narcotic Substances Act, 1997, registered at PS: D.I.O, Excise and Taxation, Mirpurkhas.

1. As per facts of the FIR lodged by complainant Excise Inspector Saleemullah Samoon on 06-10-2022 at 02:30 p.m at Police Station D.I.O Excise and Taxation, Mirpurkhas, are that on the same day, he, along with his subordinate staff, namely EC Muhammad Ameen, EC Muhammad Zafar, EC Wahid Bux, EC Syed Rafique Shah and EC Muhammad Yousuf, left the PS in an official vehicle, as per roznamcha entry No. 16 at 12:00 noon time for curbing the narcotics in Mirpurkhas city. After patrolling at different places when they reached near Sugar Mill Mirpurkhas on Mirpurkhas-Umerkot road, where saw that a suspected person was standing; he to see Excise police mobile tried to slip away but they apprehended him and on inquiry he disclosed his name as Irfan alias Jalal son of Abdullah Banglani resident of village Salim Banglani Taluka and District Umerkot. Due to non-availability of public mashir, EC Muhammad Zafar and EC Muhammad Ameen were appointed as mashirs and then personal search of appellant/ accused was conducted and recovered four patties/ slabs of charas wrapped in golden colour plastic from the front side of folds of his shalwar so also recovered five currency notes of Rs.100/= each total Rs.500/= from front pocket of his shirt. The recovered Chars was weighed at the spot, which became 02 KGs, which was sealed in a cloth bag for chemical examination at the spot. After preparation of such memo, they brought arrested accused and recovered property at PS, where complainant lodged instant FIR.

2. After completion of the investigation, the Complainant-cum-Investigation Officer has submitted Police Report/Challan under Section 173 of the Criminal Procedure Code, 1898. Subsequently, the trial Court has framed the charge against the appellant/ accused on 23-01-2023 at Ex.2-A, to which the appellant has pleaded not guilty and claimed for trial vide his plea at Ex.02-A. During the trial, the prosecution has examined P.W-01 AETO Saleemullah (Complainant/ I.O.) at Ex.03, P.W-02 EC Muhammad Zafar (first mashir) at Ex.04 and P.W-03 EC Muhammad Ameen (2nd mashir) at Ex.05. They produced relevant documents, recovered articles, which were exhibited during their testimony before the trial Court. After the completion of prosecution's evidence, the statement of appellant was recorded under section 342 of Criminal Procedure Code, 1898, at Ex.07 wherein the Appellant has not opted for his examination on oath under section 340(2) of the Criminal Procedure Code, 1898 or to produce his witness or adduce any evidence in his defense.

3. After hearing, the arguments advanced by the learned counsel for the parties, the trial Court found the Appellant guilty and thereby convicted him and sentenced to suffer Rigorous imprisonment for 09 years along with fine Rs.100,000/-. Additionally, in case of default in payment of fine amount, he would further undergo simple imprisonment for one year.

4. The Counsel for the Appellant has contended that appellant is innocent; that impugned judgment is contrary to law and principles settled by the superior courts; that the trial Court framed the Charge of 04 KG Chars while the FIR, Challan and exhibits mentioned about 02 KG Chars; that trial court has failed to consider that the case property was sent for chemical examination with a considerable delay; that there is glaring contradictions in the depositions of complainant/I.O and P.Ws; that place of incident is thickly populated area but Excise police officials have not invited any single private person. Lastly he prayed for setting aside the conviction.

5. On the other hand, learned Additional Prosecutor General rigorously opposed the contentions while arguing that Excise Police officials are good witnesses and their evidence remained unshaken and on the basis of available record no interference is warranted by this court. Lastly, he requested that the weight of narcotics (Chars) mentioned in the Charge as 04 KG which is bona fide typographical mistake at the hand of Presiding Officer and it is settled law that no one should be suffered from the mistake of court and prayed to ignore the same.

6. We have heard learned counsel for the Appellant and learned Additional Prosecutor General for State and record has been perused minutely and it has observed that surprisingly, the PW-01 Saleemullah Samoon, Assistant Director, E&T, Mirpur Khas is himself is the Seizing Officer of the Memorandum of Recovery, Arresting Officer, Complainant, author of FIR, Investigation Officer and author of Arrival, Departure Entry and of Register No.XIX and more interestingly he is himself Incharge of Malkhana with entrustment of case property involved in the case in hand.

Mis-description, inaccuracy and Broken Safe custody and safe transmission and safe production of case property before the Court

1. Mis-description of Color: The relevant portion of the evidence of the prosecution witnesses disproved the nature of case property. For instance, PW-01 deposed "I myself conducted his body search and recovered four separate slabs (patties) of chars which were lying in-front side of his folder of trouser (Shalwar)." .…" I checked recovered slabs of charas which were wrapped with a golden plastic wrapper (panni)." None of the prosecution witness deposed that 04 slabs had "dark brown" color. Even the primitive document viz Memorandum of Recovery is silent about color of case property (04 slabs) as "dark brown". On the contrary, the report of Chemical Examiner, Karachi Exh-3/H visibly described that four "dark brown" patties each wrapped in golden plastic panni.

2. Inaccuracy of case property: PW-02 Muhammad Zafar Excise Constable admitted in evidence "It is correct that digit '1716' and words 'Gumnam 2021' are written on each slab of chars, same are not mentioned in the Memo. as well as FIR". PW-03 Mohammad Ameen Excise Constable has also admitted in evidence "It is correct that digit '1716' and words 'Gumnam 2021' are written on each slab of chars, same are not mentioned in the Memo. as well as FIR." We have noticed that description of digit '1716" and word 'Gumnam 2021' is not mentioned in the Memorandum of Recovery dated 06.10.2022 or in the FIR or in the Police Report/Challan or in the Register No. XIX (Exh.3/D) or even it has not referred in the Report of Chemical Examiner (Exh.3/H).

3. The prosecution has failed to demonstrate that the case property produced in Court with dark brown color and inscription of digit "1716" and word "gumnam" is the same as mentioned in the Memorandum of Recovery/ Seizure which was prepared at crime scene. On the contrary, both Mashirs i.e. PW-02 and PW-03, have admitted that the digit "1716" and word "gumnam" inscribed on the case property when it has presented in Court. We therefore, arrived at an inescapable view that the case property mentioned in the Memorandum of Recovery/Seizure is not the same which has been produced in the Court during evidence of prosecution side. Notably, mis-descriptions of case property and the inaccuracy in the Memorandum of Recovery and subsequent flaccid documents including Chemical Examination report is not simply fatal to the case of prosecution but a calumny and an act of uttering charges in derogation of the settled principles ruled down by the Hon'ble Supreme Court of Pakistan that in absence of establishing the safe custody and safe transmission, the element of tampering cannot be excluded in this case. Any break in the chain of custody i.e. the safe custody or safe transmission of case property or samples, makes the report of chemical examiner worthless and un-reliable for justifying conviction of the accused.

4. A Memorandum of Recovery is regularly prepared by Seizing Officer at the crime scene and it is the foundation document in Narcotics related cases. The Hon'ble Supreme Court of Pakistan has focused its importance and accentuated that the Seizing Officer should draft the Memo. of Recovery of contraband with a great caution and care so that a comprehensive inventory of the actual items recovered must eminently be given as the prosecution in Narcotics cases is always encircling around the Memorandum of Recovery by way of complete description and well draft. Besides above, the law mandates that such document must be executed in the presence of two or more credible witnesses who should also be testified the Memorandum of Recovery by putting their signature in order to qualify the Memo. of Recovery in accordance with law. The pre-dominant objective of carefully preparation of Memorandum of Recovery on the spot at crime scene together with the execution of signatures of two or more witnesses, is to safeguard the process of recovery and seizing from maneuvering and to demonstrate that the process has been done in a transparent manner and keeping away shadow of doubt about the tampering of evidence. In other words to qualify the requirement of law. In present case, the oral and documentary evidences of Prosecution Witnesses are not free from variation and contradiction and are arbitrarily close to the true value of the parameter laid down by the Hon'ble Supreme Court of Pakistan.

5. Broken chain of Safe custody and Safe Transmission: The next stage of the such Memorandum of Recovery is to produce before the Trial Court as an admissible evidence and to prove the recovery through scribe and the marginal witnesses. The Memorandum of Recovery was prepared on 06-10-2022 at 1.15 p.m. P.W-1 has produced computerized printed and self-attested copy purportedly Register No. XIX having Entry No.113 dated 06-10-2022. Besides, no record of further Entry in Register No.XIX was produced with regard to the storage of case property in the Malkhana (safe custody) or Entry of Register XIX for dispatch of such case property to the laboratory at Karachi (safe transmission) or thereafter in what manner case property has returned back or to whom case property was handed over by the Laboratory Officer to produce before the Court of law during evidence. The admission of the P.W-1 "It is correct to suggest that it is not specifically mentioned in the FIR and memo. that case property was got kept in safe custody in Malkhana." And about the Register No. XIX that "It is correct to suggest that time is not specifically mentioned in the entry of property register No.19. It is correct to suggest that it is not specifically mentioned in entry of property register No.19 that by whom it was deposited. Vol. says that officer incharge himself acts as incharge Malkhana" as well as the evidence of PW-02 and P.W-03 have not been confirmed that the Memorandum of Recovery, FIR and Entry of Register No. XIX in consonance with each other. It is open and shut case of broken safe custody and broken safe transmission of case property.

6. Furthermore, the failure to produce valid entry of the Register No. XIX and production of computerized print as Entry of Register No.XIX is not fulfilling the requirement of Police Rules, 1934. Similarly, the Road certificate Exh.3-A is a manipulated document that shows the date as 24-10-2022 and it is self-contradictory to the Register No.XIX dated 07.10.2022. We are mindful to hold that it was the prime duty of the Investigating Officer to enter the factum of handing over the case property as well as sealed sample parcels and other recovered articles from the possession of Appellant in the relevant register of police station i.e. register No.2 but the same was not done in the present case which proved fatal to the prosecution case. The first provision of law relating to daily diary is section 44 of the Police Act, 1861 which is hereby reproduced as under for ready reference:

Section 44 in [The Police Act, 1861]

44. Police- officers to keep diary: It shall be the duty of every officer in charge of a police station to keep a general diary in such form shall, from time to time, be prescribed by the Provincial Government and to record therein all complaints and charges preferred, the names of all persons arrested, the names of the complainants, the offences charged against them, the weapons or property that shall have been taken from their possession or otherwise, and the names of the witnesses who shall have been examined.

The Rule 22.48 of the Police Rules 1934, Rule 22.48 pertains to Register No.II:

Register No. II. -

(1) The Daily Diary shall be maintained in accordance with section 44 of the Police Act.

It shall be in Form 22.48(1) and shall be maintained by means of carbon copying process. There shall be two copies. One will remain in the police station register and the other shall be dispatched to a Gazetted Officer to be designated by the Superintendent of Police or to the Superintendent of Police himself every day at the hour fixed in this behalf. Shortly before the close of each quarter, books containing the proper number of pages for the ensuing three months shall be issued to police stations by the Superintendent. The Superintendent shall fix the hours at which station diaries shall be daily closed with reference to the hour of dispatch of the post or messenger.

(2). The daily diary is intended to be complete record of all events which take place at the police station. It should, therefore, record not only the movements and activities of all police officers, but also visits of outsiders, whether official or non-official, coming or brought to the police station for any purpose whatsoever.

(3) All entries in the station diary shall be made by the officer in charge of the police station or by the station clerk. Literate officers making a report shall read the report re-corded and append their signatures. Every matter recorded in such diary shall be so recorded as soon as possible; each separate entry shall be numbered and the hour at which it was made shall commence each such entry. If the hour at which the information, or otherwise, containing such entries reaches the police station differs from the hour at which such entry was made, both hours shall be stated. As soon as entry has been made in the diary, a line shall be drawn across the page immediately below it.

(4) The opening entry each day shall give the name of each person in custody, the of-fence of which he is accused, and the date and hour of his arrest, the name of each accused person at large on bail or recognizance and the date of his release on such security. The last entry each day shall show (a) the balance of cash in hand as shown in the cash account, and (b) the balance of the cattle-pound account.

Similarly, as per requirement of Rules, the Form register No.XIX in Punjab Police Rules,19341 is as follows:

RULE NO.22.70: REGISTERS NO. XIX:

This register shall be maintained in Form 22.70.

With the exception of articles already included in register No. XVI every article placed in the store-room shall be entered in this register and the removal of any such article shall be noted in the appropriate column. The register may be destroyed three years after the date of the last entry.

FORM NO.22.70 POLICE STATION, DISTRICT Register No. XIX.

Store-Room Register (Part I).

Column

1. Serial No.

2. No of first information report (if any), from whom taken (if taken from a person), and from what place.

3. Date of deposit and name of depositor.

4. Description of property.

5. Reference to report asking for order regarding disposal of property.

1. How disposed of and date.

7. Signature of recipient (including person by whom dispatched).

8. Remarks. (To be prepared on a quarter sheet of native paper)

Rule 22.49 of the Police Rules 1934, Rule 22.49. - Matters to be entered in Register No. II - The following matters shall, amongst others, be entered ---

(h) All arrivals at, and dispatches from, the police station of persons in custody, and all admissions to, and removals from, the police station lock-ups, whether temporary or otherwise, the exact hour being given in every case.

1. The record produced by the PW-01 was not in accordance with the prescribed Rules and does not qualify the test of prove. We would refer the excerpt from the Judgment of Hon'ble Supreme Court:

"Thus, the Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. … . The procedure in the Police Rules ensures that the case property, when is produced before the court, remains in safe custody and is not tempered with until that time. A complete mechanism is provided in Police Rules qua safe custody and safe transmission of case property to concerned laboratory and then to trial Court."

Line added for emphasize

It is settled that if a thing is required to be done in a particular manner that should be done in that particular manner and not otherwise as a matter of convenience or practice. On the other hand, the production of the case property during evidence has also not been proved. The de-sealing of case property has been done in Court at the request of State prosecutor in the following manners:

"The ld ADPP for the State submits that case property so produced today may be de-sealed to which ld. Defence Counsel raised no objection. Chars therefore has been de-sealed and shown to the present complainant/IO, who identified the same to be same."

1. The evidence of the PW-01 (Seizing Officer-Complainant-author of FIR-Investigation Officer-Custodian of Store room (Malkhana) weirded out that he has not produced the case property and he has not given direct evidence about production of case property. He has just unrealistically identified case property when de-sealed it at the request of State Prosecutor. There is nothing brought on record as how the case property had presented in trial Court except the attribution by the State Prosecutor. In the trial, it was essential for Prosecution to elucidate through cogent and convincing evidence that the alleged contraband was seized from the possession of the Appellant/accused at crime scene by mentioning the complete description and accurate status of case property and then it was mandatorily to keep in safe custody in the Official Store (Malkhana) at police station and subsequently it's transmission to the Laboratory for analysis through proper record and finally such contraband must be returned back safely for production before the trial Court through the relevant Prosecution witness. After perusal of evidence on record, we find that the prosecution has failed to demonstrate safe custody of case property (contraband) to the police station as well as safe transmission of case property to the office of chemical analyst and its subsequent production before the trial Court. There is no explanation or reason available on record for its failure to establish and follow accuracy in description, safe custody, its safe transmission and subsequent safe return for production before the Court backed by the mandatorily required documentation. This led to us at a conclusion that the prosecution has shattered evidence.

2. We are mindful about the exclusion of Section 103 Cr.P.C. in the cases registered under the Control of Narcotic Substances Act, 1997 as envisaged under section 25 of the Act ibid, which reads as under:

"25. Mode of making searches and arrest: The provision of the Code of Criminal Procedure, 1898, except those of Section 103, 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 arrests and searches made under these sections."

(underlining supplied for emphasis)

A bare perusal of Section 25 of the Control of Narcotic Substances Act, 1997 expound that while making search and arrest, it is not absolute to avoid the provisions of Section 103 Cr.P.C. In our humble view, seizing officer has to meet the pre-conditionalites. For instance, the compliance of Section 21 of the CNS Act, 1997 for non-compliance of Section 103 of the Code by invoking Section 25 of the CNS Act, 1997 or that by the time warrant could be obtained, a possibility either of escape of the accused from crime scene or conceal or removal of evidence may involve which may put the prosecution in trouble to unearth the evidence. The Hon'ble Supreme Court held that:

"It is not an absolute requirement that in every case witness of the public must necessarily be produced. It depends upon the facts of each case. In the case in hand the Police Officers were in the ordinary course of duty looking for the suspects and errant."

In the case of Appellant, there was an unhindered possibility to engage an independent person to witness the search and arrest of the Appellant. The PW-01 in his Examination-in-Chief has suppressed the material factum about the presence of private person at the crime scene "No other private person was found there at that time so I carried out such exercise in presence of official Mashirs each EC Muhammad Zafar and EC Muhammad Ameen on the spot" but in Cross-examination he has conceded that "10/15 private persons were seen at the distance of around 150 meters." Both the Mashirs PW-02 and PW-03 have also admitted that PW-02: "Few persons were seen at a distance of about 100 paces, they were 10/12 in numbers." and PW-03: "No other person was present at the place of incident at that time. Vol says few persons were seen at some distance; they were present infront of hotel and shops". It means there was a deliberate avoidance of obtaining an independent mashir on the free ride of Section 25 of the CNS Act, 1997 by false deposition by PW-01.

1. Failure of Corroboration: Another interesting point is that the PW-01 deposed that "No other private witness was found there at the time so I carried out such exercise in presence of official mushirs EX Mohammad Zafar and EC Mohammad Ameen on the spot". During Cross-examination he has admitted that "It is incorrect to suggest that parcel of chars was stitched at P.S. EC Muhammad Yosuf wrote Memo. on the spot." As regards the scribe he was not shown or described as a witness in the said Memorandum of Recovery, therefore, he could not be categorized as an attesting witness. In terms of rule laid down by Hon'ble Supreme Court a scribe/writer can be called as witness for the corroboration of evidence of the marginal witness and recovery from the crime scene. Apparently, the Excise Constable Mohammad Yosuf shown as a witness in the Calendar of Witness of the Police Report filed under section 173 Cr.P.C. but he was not stepped into witness box for corroboration of Recovery and evidence of Witnesses of Recovery for the best reason known to the prosecution which draw us a negative inference under Article 129(h) of the Qanun-e-Shahadat Order, 1984 that if he comes into witness box, he may not corroborate the recovery and evidence of Witnesses regarding contraband.

2. We are mindful that conviction can be awarded to an Accused on the basis of direct oral evidence of only one eye-witness if same is reliable, trustworthy and confidence-inspiring as has been held by the Supreme Court of Pakistan vis-à-vis the Hon'ble Supreme Court has held that where safe custody or safe transmission of the Narcotics is not substantiated or based on unpersuasive evidence, the Report of Government Analyst becomes doubtful and unreliable. The chain of events-series of things linked, connected or associated together, would have to demonstrate and prove by the prosecution and if any link is missing or division occur, the benefit would go in favor of the accused.

3. Therefore, we cannot safely rely upon and depend on the evidence of prosecution being untrustworthy evidence having complexion of incredible testimony and inadmissible documents. We hold that impugned Judgment of Conviction based on unpersuasive evidence that causing miscarriage of justice. In conclusion, we refer about the doctrine of benefit of doubt. The rule of benefit of doubt is essentially the rule of prudence which cannot be ignored while dispensing justice. The steadily commandment of law necessitate unremitting attention for conviction that it must be based on un-impeachable evidence and certainty of guilt and where any doubt emerges would indispensably favor the Accused. The Hon'ble Supreme Court of Pakistan has ruled down in several cases that it does not need to be a plethora of circumstances raising doubt-a single event that creates reasonable doubt in the mind of a prudent person regarding an accused's guilt would entitle him acquittal as a matter of right and not as clemency or grace. It is trite law that single dent in the case of prosecution is sufficient for acquittal. The case in hand is glaringly noticeable because of inexcusable susceptible evidence adduced by the prosecution which does not qualify test of law and it stands disprove. In the light of above reasons and settled laws of the Hon'ble Supreme Court of Pakistan as has been referred above and placed too at the footnote of this judgment.

2025 Y L R 1424

[Sindh]

Before Zafar Ahmed Rajput and Tasneem Sultana, JJ

Mumtaz Ali and another---Appellants

Versus

The State---Respondent

Spl. Cr. A.T. Jail Appeal No. 40 of 2024, decided on 12th February, 2025.

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

----Ss. 324, 392, 397, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, using the criminal force or assault on public servant while he was performing his duty, common intention, act of terrorism---Appreciation of evidence---Test identification parade---Accused were charged for snatching motorcycle from the complainant, meanwhile four Police Officials arrived there on motorcycles, who signaled the accused to stop, but they opened fire on them with intention to kill them and deter them from discharging their duty causing firearm injury to a Police Constable; in retaliation one accused received bullet injuries and he fell down and was apprehended by the police---Appellant was not apprehended on the spot---As per prosecution case, appellant succeeded to make his escape good from the crime scene, however, later on he was arrested in some other criminal case and, thereafter the complainant identified the appellant in the identification test---Complainant, while reiterating the contents of his FIR., had stated that, on 26.12.2022, Investigating Officer called him for identification test and he identified the appellant during identification test and assigned him clear role for commission of the offence---Complainant had identified the appellant, present in Court at the time of recording his evidence, as the same accused---Even in cross-examination, the defence had failed to shatter the evidence of complainant on the main incident, mode and manner of identification test in which he identified the appellant---Appeal against conviction was dismissed, in circumstances.

Kanwar Anwar Ali's case PLD 2019 SC 488 rel.

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

----Ss. 324, 392, 397, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Qanun-e-Shahadat (10 of 1984), Art. 22---Attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, using criminal force or assault on public servant while he was performing his duty, common intention, act of terrorism---Appreciation of evidence---Test identification parade, conducting of---Accused were charged for snatching motorcycle from the complainant meanwhile four Police Officials arrived there on motorcycles, who signaled the accused to stop, but they opened fire on them with intention to kill them and deter them from discharging their duty causing firearm injury to a Police Constable; in retaliation one accused received bullet injuries and he fell down and was apprehended by the police---Judicial Magistrate, who conducted identification test, had noted down that the complainant assigned clear and specific role to the appellant---Said witness had specifically mentioned that the appellant was brought before him in muffled face with handcuff in Court premises, and after removing the handcuffs and cover from the face, he was called to stand according to his own choice in the queue of dummies---Total nine dummies were there beside the appellant at the time of identification---Said witness had noted down the names of said dummies, their parentage and even their C.N.I.C. numbers and had duly appended the certificate---Said witness also faced ordeal of cross-examination at the hands of defence, however, his evidence remained unshaken---No suggestion was given to said witness that the complainant had not identified the appellant in the identification test---Moreover, it did not appeal to a prudent mind that the complainant, who was a private person and employed in a mill, would lodge false FIR against the appellant and follow him till the identification test---Nothing had been brought on record by the appellant during the trial or even before the High Court that complainant already knew him before the incident or he had any enmity with him---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 324, 392, 397, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, using criminal force or assault on public servant while he was performing his duty, common intention, act of terrorism---Appreciation of evidence---Ocular account corroborated by medical evidence---Accused were charged for snatching motorcycle from the complainant; meanwhile four Police Officials arrived there on motorcycles, who signaled the accused to stop, but they opened fire on them with intention to kill them and deter them from discharging their duty causing firearm injury to a Police Constable; in retaliation one accused received bullet injuries and he fell down and was apprehended by the police---Injured Police Constable had corroborated the complainant by deposing that, on 21.11.2022, during patrolling at about 07.50 hours, they had seen four culprits committing robbery from two persons and on seeing police party they started firing, thereby encounter took place between police party and culprits and he received firearm injury on his left leg---Said witness had further deposed that the encounter continued for about 5-7 minutes and one culprit also sustained gunshot injuries, whereas three culprits made their escape good---Injured witness identified the appellant before the Trial Court---During cross-examination, evidence of injured witness remained unshaken---Medico-Legal Officer examined the injuries of Police Constable at Hospital and produced Medico Legal Certificate---As per Medical Certificate, no blacking was noticed near or around the wound and same was caused by a firearm---Oral and documentary evidence corroborated the version of complainant and injured---Investigating Officer pointing out that on 19.12.2022, he arrested the appellant, as he was already in custody in another criminal case, and on 26.12.2022 he got the identification test conducted through complainant before Judicial Magistrate concerned---Said witness had also deposed that the appellant was also involved in 4/5 other cases as per his CRO---In cross-examination, evidence of said witness remained unshaken on main points and false implication or enmity with the present appellant---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 324, 392, 397, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, using criminal force or assault on public servant while he was performing his duty, common intention, act of terrorism---Appreciation of evidence---Minor contradictions in evidence---Inconsequential---Accused were charged for snatching motorcycle from the complainant; meanwhile four Police Officials arrived there on motorcycles, who signaled the accused to stop, but they opened fire on them with intention to kill them and deter them from discharging their duty causing firearm injury to a Police Constable; in retaliation one accused received bullet injuries and he fell down and was apprehended by the police---Appellant had not pointed out any major contradiction in evidence and record---Minor contradictions and slight variations were inconsequential and same could not be considered for disbelieving a straight forward and confidence inspiring evidence---Some variations occurred naturally in the evidence, which would not take away or reduce the intrinsic value of the evidence---Appeal against conviction was dismissed, in circumstances.

Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss. 324, 392, 397, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to commit qatl-i-amd, robbery, robbery or dacoity with attempt to cause death or grievous hurt, using criminal force or assault on public servant while he was performing his duty, common intention, act of terrorism---Appreciation of evidence---Vicarious liability---Applicability---Accused were charged for snatching motorcycle from the complainant; meanwhile four Police Officials arrived there on motorcycles, who signaled the accused to stop, but they opened fire on them with intention to kill them and deter them from discharging their duty causing firearm injury to a Police Constable; in retaliation one accused received bullet injuries and he fell down and was apprehended by the police---In the present case, there was exchange of fire/shots, however, it was not possible to exactly point out that fire shot from which of the accused hit the injured/Police Constable---Section 34, P.P.C., provided that where a criminal act was done by several persons in furtherance of the common intention of all, each of such persons were liable for that act in the same manner as if it was done by him alone---Appeal against conviction was dismissed, in circumstances.

Qasim Shahzad and others v. The State 2023 SCMR 117; Asim v. The State 2005 SCMR 417; Lal Khan v. The State 2006 SCMR 1846 and Muhammad Sadiq v. The State 2022 SCMR 690 rel.

Zulfiqar Ali Mashori for Appellant.

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

Date of hearing: 12th February, 2025.

Judgment

Tasneem Sultana, J.---Through this appeal, appellant, namely, Mumtaz Ali son of Qadir Bux has assailed the judgment, dated 29.01.2024, passed by the learned Anti-Terrorism Court No. XIX, Karachi in Special Case No. 17 of 2023, arisen out of FIR No. 649 of 2022, registered at P.S Quaidabad, Karachi-Malir, under sections 392, 397, 353, 324/34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 ("Act of 1997"), whereby he was convicted and sentenced, as under: -

(i) for offence under section 397/34, P.P.C., the appellant shall undergo R.I for seven years and pay a fine of Rs. 20,000/--, in default thereof, appellant to undergo S.I. for three months;

(ii) for offence under section 7(h) A.T.A, 1997, read with section 353, P.P.C., appellant shall undergo R.I. for two years and pay a fine of Rs. 20,000/--, in default thereof, appellant to undergo S.I. for three months;

(iii) for the offence under section 7(i)(b) A.T.A, 1997, read with section 324 P.P.C., appellant shall undergo R.I for five years and to pay a fine of Rs.20,000/--, in default thereof, appellant shall suffer S.I. for six months.

All the sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. was extended to appellant.

1. Brief facts of the prosecution case are that complainant Muhammad Adeel son of Ghulam Rasool lodged the aforesaid FIR, stating therein that, on 21.11.2022, he along with his brother Muhammad Nabeel was going to his job in M/s. Younus Textile Mills on his motor-cycle 125cc, Unique, bearing No. AFR 2022; at 7.50 a.m., they reached General Tyre Road, near Lati Fire Station, where four armed accused persons on two motor-cycles intercepted them and on the strength of weapons they snatched his motorcycle with his CNIC and other documents. Meantime, four police officials of 15-Madadgar arrived there on two motor-cycles, who signaled the accused to stop, but they opened fire on them with intention to kill them and deter them from discharging their duty, causing firearm injury to PC Gulsher. In retaliation one accused, namely, Suhno alias Laiq also received bullet injuries and he fell down, while rest three succeeded to make their escape good on snatched motor-cycle. ASI Neek Zada apprehended the injured accused and recovered from him one 30-bore pistol along with magazine, one magazine loaded with five live rounds, and secured three empties of SMG, one empty of 9mm and two empties of 30 bore pistols from the place of incident under memo. of arrest and recovery; thereafter, injured accused and PC Gulsher were shifted to hospital for treatment. The complainant reported the incident vide aforesaid FIR at police station. The injured accused later succumbed to injuries in Jinnah Hospital during his treatment.

2. Per investigation, on 19.12.2022, present appellant/accused was arrested in another Crime No. 715 of 2022, registered at P.S. Quaidabad under section 23(1)(a) of Sindh Arms Act, 2013, who during interrogation disclosed his involvement in the instant crime/case. He was identified by the complainant in identification test conducted on 26.12.2022 by the Judicial Magistrate-XII, Karachi-Malir (the "J.M"). After completing all necessary formalities, police submitted the charge-sheet against the appellant. The necessary documents as required under section 265-C, Cr. P.C. were provided to him. The Trial Court framed formal charge against him, to which he pleaded not guilty and claimed to be tried.

3. To prove its case, prosecution examined ten witnesses; PW-1 PC Gul Sher examined at Ex.04; PW-02 Muhammad Adeel, complainant, examined at Ex.05, who produced memo. of arrest and recovery at Ex. 5/A, FIR at Ex. 05-B, Qaimi entry No.9 at Ex. 05/C, memo. of site inspection at Ex. 05/D, memo. of identification test at Ex. 5/E; PW-03, ASI Naik Zada examined at Ex.08, who produced station diary No.59 at Ex.08/A, station diary No.20 at Ex. 08-B and memo. of Crime Scene Unit CSI Form-11, at Ex.08/C; PW-04, PC Samad Khan examined at Ex.9, who produced duty list/report at Ex.09/A, station diary No.15 at Ex.9/B and memo. of arrest and recovery at Ex. 09/C; PW-05 ASI Iftikhar Ali Shah examined at Ex. 10, who produced station diary No.13, at Ex.10/A, memo. of inspection of dead body at Ex.10/B, Inquest Report under section 174 Cr.P.C. at Ex.10-C, Letter of dead body handing over to Chhipa Mortuary at Ex. 10/D, arrival entry No. 15 at Ex. 10/E; PW-06, MLO, Dr. Ghulam Mustafa examined at Ex.12, who produced letter of police of P.S Quaidabad at Ex.12/A, certificate of cause of death at Ex.12/B and postmortem report at Ex.12/C; PW-07 HC Muhammad Hanif examined at Ex.13, who produced station diary No.59 at Ex.13/A and police letter to MLO for treatment of injured PC Gulsher at Ex.13/B; PW-08, MLO, Dr. Abdul Basit examined at Ex. 14, who produced two MLCs at Ex.14/A and Ex.14/B respectively; PW-09 Furqan Karim, the J.M, examined at Ex.15, who produced application of I.O. duly ordered at Ex.15/A, C.N.I.C. at Ex. 15/B, photograph of witness Muhammad Adeel at Ex.15/C and Identification test at Ex. 15/C-; PW-10, Inspector Muhammad Nawaz Kehar, I.O., examined at Ex.16, who produced station diaries Nos.24, 4, letter to in-charge Chhipa Mortuary Centre, photographs of deceased accused, station diaries Nos. 21, 25, 36, 25, CRO of deceased accused Laiq Khan and accused Mumtaz Ali Khan, FSL reports along with photo of weapons and ammunition and application to J.M-XII, for issuance of certified copies of identification test, at Ex.16/A to Ex.16/M, respectively.

4. The statement of appellant under section 342, Cr.P.C. was recorded at Ex. 17, wherein he has denied the allegations against him and claimed to be innocent. He has deposed that he was booked in this case falsely with mala fide intention. He, however, neither examined himself on oath to disprove prosecution's allegations nor even led any evidence in his defence. The Trial Court after hearing the learning counsel for the appellant as well as A.P.G. for the State convicted the appellant and sentenced him as mentioned above, vide impugned judgment.

5. We have heard the learned counsel for the appellant as well as Addl. P.G. for the State and perused the material available on record with their assistance.

6. Learned counsel for the appellant, inter-alia, has contended that Trial Court failed to appreciate law and facts involved in this case and to consider material contradictions in the depositions of the P.Ws., which have created serious doubt in the prosecution case. He has added that impugned judgment is based on presumptions and assumptions. He has further contended that after lapse of considerable time, the identification test was held before J.M in which quantum of dummies were not fulfilled, while witnesses had already seen the appellant at police station, and merely on the basis of identification test, the appellant could not be convicted. He has also contended that, on 17.12.2022, the appellant was arrested from Malir Court; such complaint was made by his brother, thereafter, he was booked in this false case, although he had no role in the commission of alleged offence.

7. Conversely, learned Addl. P.G. for the State while supporting the impugned judgment, has maintained that the prosecution has proved its case through ocular, medical and circumstantial evidence. He has further maintained that the appellant along with his three accomplices snatched the motorcycle and other valuable articles from the complainant and PW/PC Gulsher sustained firearm injury in assault made by accused persons. He has further maintained that complainant in identification test identified the appellant before J.M, who being private person has no reason to falsely implicate the appellant. He has also maintained that the complainant, injured PC Gulsher, other PWs and I.O have corroborated each other and the Trial Court rightly convicted and sentenced the appellant, hence, impugned judgment is liable to be maintained by dismissing instant appeal.

8. Right at the outset, it is observed that the appellant was not apprehended on the spot. As per prosecution case, he succeeded to make his escape good from the crime scene, however, later on he was arrested in some other criminal case and, thereafter, the complainant identified the appellant in the identification test. It would be appropriate to discuss the legal position of identification test. In this regard, Article 22 of the Qanun-e-Shahadat Order, 1984 may to referred to, which is reproduced, as under: -

22. Facts necessary to explain or introduce relevant facts:

Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue, or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose."

1. It is settled law that though the identification of an accused made at the identification test may not be substantive evidence, yet it can be used to corroborate the statement of witnesses made in Court at the trial. The whole idea of an identification test is that witnesses, who claims to have seen the accused at the time of occurrence, are to identify them from the midst of other persons without any aid or any other source. So, the main object of holding identification test, during the investigation stage, is to test the memory of the witnesses based upon the first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye-witness of the crime.

2. The purpose of conducting an identification test is twofold; first is to enable the witnesses to satisfy themselves that accused whom they suspect is really the one, who was seen by them in connection with the commission of the crime; second is to satisfy the investigation authorities that the suspect is the real person, whom the witnesses had seen in connection with the said occurrence. The Hon'ble Supreme Court has discussed the scope and legal implications of identification test in chain of reported cases. For quick reference, reliance is placed on case of Kanwar Anwar Ali (PLD 2019 SC 488) wherein after discussing leading cases on identification test, the Supreme Court observed that "the vital factor determinative of the worth and value of the identification proceeding is the effectiveness of the precautions taken before and during the course of such proceedings which are designed to eliminate the possibility of unjustified convictions." The Apex Court then summarized a list of precautions and guidelines for holding the identification test and held that while weighing the evidence offered through an identification test, a Court of law should consider whether the stated precautions had been taken.

3. In present case, PW-2, complainant, Mohammad Adeel (Ex.05) while reiterating the contents of his FIR, has stated that, on 26.12.2022, Investigating Officer called him for identification test in Sessions Court Malir, Karachi and he identified the appellant during identification test and assigned him clear role for commission of the offence. The complainant has identified the appellant, present in Court at the time of recording his evidence, as the same accused. Even in cross-examination, the defence counsel has failed to shatter the evidence of complainant on the main incident, mode and manner of identification test in which he identified the appellant. The defence counsel has not given any suggestion to complainant regarding lodging of false FIR and pursuing the case malafidely up to identification test held before the J.M.

4. Before evaluating the evidence of remaining eye-witnesses, it would be appropriate to analyze and scrutinize the proforma of identification test produced by the P.W-9, Furqan Karim, J.M., at Ex.15/C, who has apprised the Trial Court about the identification test, which he conducted in his Court premises on 26.12.2022. He has noted down that the complainant assigned clear and specific role to the appellant. He has specifically mentioned that the appellant was brought before him in muffled face with handcuff in Court premises, and after removing the handcuffs and cover from the face, he was called to stand on his own choice in the queue of dummies. There was total nine dummies beside the appellant at the time of identification test. The said P.W. has noted down the names of said dummies, their parentage and even their C.N.I.C. numbers and has duly appended certificate to Ex.15/C. The said P.W. also faced ordeal of cross-examination at the hands of defence counsel, however, his evidence remained unshaken. No suggestion was given to him that the complainant had not identified the appellant in the identification test. It does not appeal to the prudent mind that the complainant, who is a private person and employed in a Mill, would lodge false FIR against the appellant and follow him till the identification test. Nothing has been brought on record by the appellant during the trial or even before this forum that complainant already knew him before the incident or he had any enmity with him.

5. Injured PW-1, PC Gulsher (Ex.04) has corroborated the complainant by deposing that, on 21.11.2022, during patrolling at about 07.50 hours, they saw four culprits committing robbery from two persons and on seeing police party they started firing, thereby encounter took place between police party and culprits and he (PW) received firearm injury on his left leg. He has further deposed that the encounter continued for about 5-7 minutes and one culprit also sustained gunshot injuries, whereas three culprits made their escape good. He identified the appellant before the Trial Court. During cross-examination, his evidence remained unshaken, however, he admitted that he is unaware as to which accused made firing upon him. Learned defence counsel neither confronted the said PW on police encounter nor offered any explanation by way of suggestion that his injury was either self-inflicted or the same was received at some other place but was malafidely attributed to the accused persons of present case.

6. PW ASI Naik Zada (Ex.08) has also supported the prosecution case. He has deposed that after receiving information about the incident, he along with two other police officials arrived at place of incident at 8.00 a.m. and shifted the injured police constable and co-accused to Jinnah Hospital, Karachi for their treatment and recovered arms and ammunition from the possession of the deceased co-accused and secured empties from place of incident. The counsel for the appellant cross-examined him but failed to extract any advantageous words.

7. PW Samad Khan (Ex.09) also supported the complainant and PW Gulsher on the chain of events as he was part of the same police party. At trial, he also identified the appellant.

8. Evidence of P.W-8, MLO, Dr. Abdul Basit is evaluated in the same sequence at Ex.14. He examined the injuries of PC Gulsher at Jinnah Hospital and produced Medico Legal Certificate (Ex.14/A and Ex. 14/B). As per Medical Certificate, no blacking was noticed near or around the wound and same was caused by a firearm. His oral and documentary evidence corroborates the version of complainant and injured PW. It is relevant to mention here that one of the co-accused, namely, Suhno alias Laiq was killed in the alleged encounter and PW-5, MLO, Dr. Ghulam Mustafa (Ex.12) conducted his postmortem, who produced post mortem report and cause of death certificate at Ex.12/A and Ex.12/B. PW-10, I.O, Inspector Muhammad Nawaz (Ex. 16) summed up the entire prosecution case pointing out that on 19.12.2022, he arrested the appellant, as he was already in custody in another criminal case, and on 26.12.2022 he got the identification test conducted through complainant before J.M concerned. He has also deposed that the appellant was also involved in 4/5 other cases as per his CRO. In cross-examination, his evidence remained unshaken on main points and false implication or enmity with the present appellant.

9. In his statement, recorded under section, 342 Cr.P.C., the appellant has denied the allegations and contended that he was falsely implicated in the present case. However, he offered no explanation that what was so special, which had prompted complainant and police officials to stage a fake robbery and subsequent police encounter in which a police constable received firearm injury. His counsel has taken plea in cross-examination as well as during arguments regarding his arrest from Malir Court on 17.12.2022 and his subsequent false implication, for which brother of the appellant moved application, however, the appellant has himself not taken any such stand in his 342, Cr.P.C. Statement. He has even not produced in evidence the copy of alleged complaint/application moved by his brother.

2025 Y L R 1439

[Sindh (Mirpurkhas Bench]

Before Amjad Ali Bohio, J

Mubeen and 6 others---Applicants

Versus

The State---Respondent

Criminal Bail Application No. S-129 of 2023, decided on 19th February, 2024.

Criminal Procedure Code ( V of 1898) ---

----S. 497(2)---Penal Code (XLV of 1860), Ss. 377, 377-B, 292-C, 382, 322, 415, 506(ii) & 34---Sodomy, sale etc. of obscene content, theft after preparation, qatl bis-sabab, criminal intimidation, common intention---Bail, grant of---Lack of essential incriminating material/ evidence---Deceased committed suicide, however later, on the statement of one of the prosecution witnesses ('witness-in-question'), the accused persons were alleged to have committed sodomy with the deceased while making his video and uploaded the same, which led to his suicide---Witness-in-question failed to disclose the name of the person who allegedly disclosed the information regarding video clips/photos of the alleged act of the deceased, leading to his suicide---Furthermore, witness-in-question himself had not seen the said video clips/photos of the alleged act, as was evident from the perusal of his statements recorded by the Investigating Officer, as well as the Trial Court---Further, the Investigating Officer, present in court, stated that he did not send the mobile phone of deceased for forensic analysis; he also did not check the SIM cards allegedly belonging to the deceased and no Call Data Record (CDR) was collected to establish the location of the deceased at the time of the incident---The lack of such material evidence, coupled with failure of said witness to provide relevant details about the alleged video recording/clips, raised doubts about the veracity of the allegations---Notably, witness-in-question was not present at the time of the incident and he too failed to provide crucial information regarding the sharing of the video clips with the accused ; he also failed to disclose the source of evidence to ascertain how he obtained knowledge about the sharing of the video clips/photos on WhatsApp---Thus, considering the absence of essential evidence collected by the Investigating Officer and the discrepancies in the testimony of witness-in-question, it was a case warranting further inquiry ---Bail was granted to the applicants/accused, in circumstances.

Shaukat Ali Rahimoon for Applicants.

Dhani Bakhsh Mari, Assistant Prosecutor General along with I.O Lalo of PS Jhun for the State.

Complainant in person.

Order

Amjad Ali Bohio, J.---After dismissal of the bail application filed by the applicants/accused (hereinafter referred to as "applicants") before the learned Additional Sessions Judge-I, Tharparkar at Mithi, vide order dated 07.11.2023, in Crime No.07/2023 at PS Jhun for offenses under Sections 377, 377-B, 292-C, 506(ii), 382, 322, 415, and 34 P.P.C.; the applicants have filed instant bail application. Previously, the applicants were granted bail vide order dated 08.07.2023. However, subsequently, upon the filing of application for the cancellation of their bail under Section 497(5) Cr.P.C bearing Crl. Misc. Application No.749/2023, the Court below recalled the its order dated 08.07.2023.

1. It is alleged that deceased, Wasayo, alias Dado, committed suicide by hanging himself with a rope on 10.04.2023, at 8:30 P.M. in Karachi. The deceased's father/complainant, Ahmed, brought the body and buried it. Later, a witness namely Umar, son of Kareem Dino Lanjo, informed the complainant on 12.04.2023 that on the night between 18/19-03-2023, the accused namely Mubeen, Nabo, Habib, Soomar, Hakeem, Ghulam Muhammad son of Ameen, and Riaz, called the deceased near Dedhal graveyard. There, they allegedly gang-raped and sodomized Wasayo, capturing objectionable videos and photographs. They also allegedly stole a Q-Mobile phone with two Telenor SIMs, a wallet containing Rs. 12000 cash, two silver rings, and a red cap from him. The accused then threatened Wasayo, stating that if he disclosed the incident to anyone, they would share the videos on social media to defame him. Umar further disclosed to the complainant that the accused Ghulam son of Ameen had shared the objectionable video on WhatsApp, and upon learning this fact, deceased Wasayo committed suicide. The FIR does not mention by whom, the video clips were shared. Following these events, the complainant lodged the FIR on 04.05.2023.

2. The learned counsel for the applicant argues that the applicants are innocent and have been falsely implicated with malicious intent, allegedly at the behest of PW Muhammad Umar. It is contended that PW Muhammad Umar narrated false story to the complainant, who, believing it, lodged the FIR with a delay of one and a half months after the alleged incident. The applicants/accused have been in custody since June-2023 for an unseen offense based on the FIR, which relies on the statement of PW Umar. Certified true copies of the deposition of complainant Ahmed and PW Umar recorded before the trial Court have been submitted, wherein PW Umar purportedly failed to mention anything about the video recording of the alleged incident or by whom the video clips were sent to accused Ghulam via WhatsApp. The counsel further highlights the statement under Section 162 Cr.P.C of PW Muhammad Umar, recorded on 13.11.2023, where he allegedly added three more accused without explanation after a delay of over six months. The counsel argues that the investigating officer (I.O) failed to collect the alleged video clips, and during the investigation, PW Muhammad Umar did not disclose the name of person who shared the video clips through WhatsApp. Therefore, it is argued that further inquiry is warranted, and the applicants are entitled to bail. The counsel also points out that the DNA report during the investigation came in negative, and no video recordings or clips of the alleged incident were collected by the I.O. Additionally, there are conflicting versions of the incident, initially being reported as a suicide, but later alleged to be linked to the aforementioned incident of sodomy by PW Umar, for which no evidence has been collected by the I.O. In support of his contentions, he relied upon the case laws viz: Sohail Akhtar v. The State through P.G Punjab and another (2022 SCMR 1447), Muhammad Nauman Hanif v. The State and another (2016 SCMR 1399), Abdul Ghaffar v. The State and others (2016 SCMR 1523), Muhammad Hussain v. The State (2022 YLR Note 132), Muhammad Tanveer v. The State and another (2021 YLR 1736), Saifullah and another v. The State (2020 YLR 1045), Ameer Khan v. The State (2018 YLR Note 283) and Ghulam Ali v. The State (2017 YLR Note 339).

3. The learned Assistant Prosecutor General (A.P.G) opposed the bail application, arguing that the DNA test could not be considered grounds for bail as it was conducted at a preliminary stage of the investigation. However, the A.P.G conceded that the investigating officer (I.O) failed to collect the alleged video recording of the incident, which supposedly led to the complainant's son committing suicide.

4. Heard the arguments presented by both parties and thoroughly examined the record.

5. At the outset it is observed that PW Umar failed to disclose the name of the person who allegedly disclosed this information to deceased Wasayo, leading to his suicide. Furthermore, PW Umar himself had not seen the said video clips/photos of the alleged act, as evident from the perusal of his statements recorded by the investigating officer, as well as, the trial court.

2025 Y L R 1449

[Sindh (Sukkur Bench)]

Before Zulfiqar Ahmad Khan, J

Dawood Ahmed Bhutto---Applicant

Versus

M. Khalid Saleem and another---Respondents

Civil Transfer Application No. S-02 of 2025, decided on 20th March, 2025.

Civil Procedure Code (V of 1908)---

----S.24---Transfer of suit---Scope---Bias in a Judge alleged---The applicant filed suit for damages against the respondents, who were government officials, for alleged malicious prosecution stemming from a false FIR registered under S.381, P.P.C.---The suit was initially instituted before the Senior Civil Judge, Mirpur Mathelo, who rejected the plaint under O.VII, R.11, C.P.C. on the ground of maintainability---The applicant filed an appeal, and the appellate court remanded the matter to the Trial Court to be decided on merits after framing issues and recording evidence, however, instead of proceeding with the trial, the applicant filed multiple transfer applications raising allegations of bias and lack of impartiality against successive Judges---As a result, the suit was transferred back and forth between the courts at Mirpur Mathelo and Ghotkion judicial and administrative grounds---The applicant then filed the present transfer application, expressing mistrust in the newly posted Senior Civil Judge at Mirpur Mathelo and sought a further transfer---The applicant presented two background narratives to support his claim; that he served as SHO Anti-Encroachment Force, Ghotki, where respondents allegedly tried to interfere with his duties, and upon his resistance, fabricated a false story resulting in the registration of an FIR against him; that same FIR concerned the alleged theft of cables and a computer, in which the applicant was eventually acquitted, following which he filed the civil suit for damages---Held: This repetitive filing of transfer applications, particularly the present one, in which the applicant claimed dissatisfaction with the behavior of the newly posted Senior Civil Judge, raised concerns about the applicant's own conduct rather than the fairness or impartiality of the judicial process---This pattern suggested that the applicant might be using the transfer application process as a tactic to delay or obstruct the progress of the case, rather than genuinely seeking a fair trial, keeping the respondents, who were government servants, under pressure---The application at hand was without merit and was accordingly dismissed, in circumstances.

Achar Khan Gabol for Applicant.

Shahryar Imdad Awan, Assistant Advocate General Sindh for Respondents.

Date of hearing: 20th March, 2025.

Order

Zulfiqar Ahmad Khan, J.---This application has been filed by the applicant seeking transfer of F. C. Suit No.94 of 2024 (Re: Dawood Ahmed Bhutto v. M. Khalid Saleem and another) from the Court of learned Senior Civil Judge, Mirpur Mathelo to any other competent Court in District Ghotki.

1. Learned Counsel for the applicant has contended that the applicant has lost faith upon the learned Senior Civil Judge due to various concerns, including the earlier rejection of the plaint under Order VII Rule 11, C.P.C.. However, in appeal, the matter was remanded back to the trial Court for deciding it on merits after framing issues and leading evidence by the parties. He has further contended that despite the appellate Court's overruling the maintainability issue, the trial Court once again directed the applicant to satisfy the same issue, raising concerns about the impartiality of the learned Judge. He has lastly submitted that the applicant fears an unjust outcome and seeks transfer of the case to another Court. He has placed reliance upon the case reported as 2004 CLC 1244 and 2012 CLD 6.

2. On the other hand, learned AAG Sindh has opposed the application, contending that the applicant is unnecessarily prolonging the matter and that no concrete evidence has been presented to demonstrate any bias or partiality on the part of learned Judge. He has further submitted that without any substantial proof against the learned Judge, the request of transferring the case is unfounded and should be dismissed.

3. Before filing this application, the applicant has also preferred a like nature application (Civil Transfer Application No.39 of 2024) before the learned District Judge, Ghotki, which has been dismissed by him through a well-reasoned order dated 08.01.2025. Relevant portion of that order is reproduced below:

"A perusal of case file shows that, applicant had filed F.C Suit No.31/2021 for damages against respondents before court of learned Senior Civil Judge, Mirpur Mathelo. Its plaint was rejected under Order VII Rule 11 C.P.C. on point of its maintainability. In Civil Appeal, matter was remanded back to trial court for deciding it on merits. His suit was renumbered as F.C Suit No.94/2023. Then applicant/plaintiff filed Transfer Application against the then Senior Civil Judge, Mirpur Mathelo (Mr. Anees-ur-Rehman Buriro), which was allowed and case was transferred to the court of learned Senior Civil Judge, Ghotki. After that, on administrative ground, so many cases including Applicant's F.C Suit No.94/2023 was transferred to same court of learned Senior Civil Judge, Mirpur Mathelo, on point of territorial jurisdiction, where new Senior Civil Judge, has recently been posted. Applicant has again moved Transfer Application, solely on the ground that, behaviour of learned Senior Civil Judge, towards him is not good. When confronted, applicant Dawood Ahmed Bhutto, a public servant, admits that, after transfer of the case, he has not engaged his learned counsel and court is asking him for satisfaction over maintainability of the suit. It is surprising that, for instant transfer application, applicant engages a senior counsel but for proceedings the case he does not engage learned counsel before trial court. I do not find substance in Transfer Application in hand, therefore, it is dismissed.

It is pertinent to mention here that earlier plaint in applicant's suit was rejected on point of maintainability. In appeal same was remanded back to trial court for deciding it on merits by framing issues and to lead evidence thereupon. Learned Senior Civil Judge, Mirpur Mathelo is advised to comply the direction of appellate court in letter and spirit, including over issue of maintainability and then decide the case in accordance with law expeditiously preferably within a period of three (3) months because it is pending since year 2021."

1. Having considered the facts, the arguments of the parties, and the above detailed reasoning of the learned District Judge, this Court concurs with the decision of the learned District Judge, having noted that the applicant has a consistent history of filing transfer applications in relation to F.C. Suit No.31 of 2021 (renumbered as F.C. Suit No.94 of 2023). Initially, the suit was filed before the learned Senior Civil Judge, Mirpur Mathelo, who rejected the plaint under Order VII Rule 11, C.P.C., on the ground of maintainability. In response, the applicant filed an appeal, which resulted in remanding the matter to the trial Court for a decision on merits after framing of issues and leading of evidence by the parties. However, despite the remand order, the applicant filed a transfer application against the former learned Senior Civil Judge, Mirpur Mathelo, which was granted, and the case was transferred to the Court of learned Senior Civil Judge, Ghotki. Subsequently, on administrative grounds due to territorial jurisdiction, the same case was transferred back to the Court of learned Senior Civil Judge, Mirpur Mathelo, where a new learned Judge was posted.

2025 Y L R 1454

[Sindh]

Before Sana Akram Minhas, J

Syed Sulaiman Jafri---Appellant

Versus

United Bank Limited through President and 2 others---Respondents

High Court Appeal No. 163 and C.M.A. No. 1353 of 2022, decided on 14th April, 2025.

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

----First Sched., Art. 64---Civil Procedure Code (V of 1908),O.VII, R. 11---Suit for recovery of money---Cause of action, accrual of---Limitation, starting point of---Scope---Plaint of the plaintiff (a compulsory retired bank employee) against the defendant / Bank was rejected for not being instituted within time-period i.e. three years from receipt of dues settlement letter between the parties---Contention of the appellant /plaintiff was that he addressed a letter to the respondent (defendant / Bank) after one and half months of receipt of the dues settlement letter, to which no response was ever received, thus, the cause of action accrued to him on the date of the said letter---Validity---If the starting point of the limitation period were to commence from the date of issuance of the appellant's own letter, as suggested, it would lead to an untenable and illogical outcome---By such reasoning the accrual of limitation would be entirely at the discretion and mercy of the claimant (appellant in the present case)---This would create an anomalous situation where the limitation period may never begin to run, or could be arbitrarily delayed potentially by years or even decades in an extreme scenario simply by the claimant choosing not to issue such a letter---Such an interpretation would not only defeat the very object and purpose of limitation law, which is to bring finality to litigation and prevent stale claims, but would also undermine the certainty and predictability essential to legal proceedings opening the door to potential abuse---Plaint of the appellant was rightly rejected---Appeal was dismissed, in circumstances.

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

----O.XLVII, R. 1---Review---The Review Application can only be entertained on the basis of an error that is evident on the face of the record-an error so clear that if does not require detailed analysis---Review proceedings are strictly limited to said narrow framework and can be used as substitute for an appeal---Any error that is not self-evident or requires extensive reasoning to identify cannot be considered "apparent" and, therefore, does not warrant a review under O.XLVII, R.1 C.P.C.---Review Application, being merit-less, was dismissed, in circumstances.

Forte Pakistan (Pvt) Limited v. Azam Khan 2017 MLD 1049; Masroor Ahmed Zai v. Province of Sindh 2016 CLC 1861; Doda Begum v. Israr Hussain Zaidi 2014 CLC 1407; Inam Ahmad Osmani v. Federation of Pakistan 2013 MLD 1132 and Shiraz Arshad v. VIIIth Civil and Family Judge 2009 YLR 1016 ref.

Imtiaz Ali Effendi for Appellant.

Suleman Hudda for Respondent No. 1 (UBL).

Syed Bashir Hussain Shah, Assistant Attorney General.

Order

Sana Akram Minhas, J.--- This order addresses C.M.A. No.1353/ 2024, an application for review ("Review Application") filed by the Appellant under Section 114 read with Order XLVII Rule 1 and Section 151 of the Code of Civil Procedure, 1908 ("C.P.C."), seeking review of the judgment dated 23.5.2024 ("Appellate Judgment"). By the Appellate Judgment, the instant Appeal was dismissed, and the order of the learned Single Judge dated 22.3.2022 -which rejected the Appellant's Plaint in Suit No. 1979/2019 (Syed Sulaiman Jafri v. United Bank Limited and others) ("Underlying Suit") as time barred on Respondent No. 1's application under Order VII Rule 11 C.P.C. - was upheld.

1. It may be noted that the Appellate Judgment under review was delivered by a Division Bench of this Court. However, as one of its members (viz. Mr. Justice Muhammad Shafi Siddiqui), has since been elevated to the Supreme Court, the Review Application has been placed before me in accordance with the Office Note and the order dated 4.3.2025, issued by the Honourable Acting Chief Justice.

2. Upon query, learned Counsel for Appellant submitted that although no appeal has been preferred against the Appellate Judgment before the Supreme Court to date, the mere availability of an appellate remedy does not, by itself, preclude the filing of a review. He further stated that the decision to assail the Appellate Judgment through the Review Application was a considered one, as the Judgment is alleged to suffer from an "error apparent on the face of the record" which may validly be corrected by invoking the jurisdiction conferred under Order XLVII Rule 1 C.P.C..

3. Briefly stated, the Appellant was initially dismissed from service by letter dated 12.9.1997, which, upon his request, was subsequently converted into compulsory retirement with effect from the same date. This was done pursuant to the Appellant's undertaking/affidavit dated 15.8.2007 (Court File Pg. 151, Annex A-12), that he would not claim any back benefits, payments, or retirement entitlements from Respondent No.1 Bank. Thereafter, the Appellant received a dues settlement letter dated 21.11.2016, which he claims to have received on 23.11.2016, and with which he expressed disagreement regarding the amount paid. Consequently, he instituted the Underlying Suit on 3.12.2019 (inter alia, for recovery of money), the Plaint of which was rejected as being time barred by the Single Judge - an order that was subsequently upheld through the Appellate Judgment.

4. From a perusal of the Review Application and consideration of the arguments advanced by the Appellant's Counsel, the principal thrust of the Appellant's case for review is that the Appellate Court erred in upholding the order of the Single Judge, whereby the Appellant's Plaint was rejected as being time-barred under Article 641 of the Limitation Act, 1908. It is contended that, following receipt of the dues settlement letter dated 21.11.2016 (Court File Pg. 159, Annex A-16), the Appellant addressed a letter dated 5.1.2017 (Court File Pg. 161, Annex A-17) to the Respondent No.1, to which no response was ever received. Counsel submits that the cause of action accrued to the Appellant on the date of the said letter, and that if the three-year limitation period prescribed under Article 64 is computed from 5.1.2017, the Underlying Suit filed on 3.12.2019 would fall within time. It is argued that the oversight and failure to consider this position constitutes an error apparent on the face of the record. To substantiate this contention, Counsel placed reliance on 1999 SCMR 255 (Muhammad Ahmed v. Government of Sindh), PLD 1992 SC 825 (Muhammad Masihuzzaman v. Federation of Pakistan) and 2014 PLC (C.S.) 247 [IHC] (Rakhshinda Habib v. Federation of Pakistan).

5. In opposition, learned Counsel for Respondent No.1 has objected to the Review Application arguing that it exceeds the scope of Order XLVII, Rule 1 C.P.C. and has called for its dismissal. He contends that, out of compassion, Respondent No.1 converted the Appellant's dismissal from service into compulsory retirement after 9 years. Despite the Appellant's written undertaking/affidavit not to claim any payments or benefits from Respondent No.1, he has acted contrary to this commitment and continues to subject the Respondent No.1 to prolonged and ongoing litigation.

2025 Y L R 1501

[Sindh]

Before Muhammad Saleem Jessar, J

Sohail Majeed Ayat---Appellant

Versus

The State---Respondent

Criminal Appeal No. 492 and Criminal Acquittal Appeal No. 587 of 2022, decided on 20th May, 2024.

Penal Code (XLV of 1860)---

----Ss. 420, 468, 471, 427 & 34---Cheating and dishonestly inducing someone to deliver property, forgery for the purpose of cheating, use of a forged document as genuine, mischief causing damage to the amount of fifty rupees, common intention---Appreciation of evidence---Compromise---Accused were charged they had obtained forged heir-ship certificate by way of fraud and got transferred the property of complainant in their names---Joint application for settlement supported by the affidavits of all concerned were duly sworn in by them---After filing of compromise application, all concerned also conceded to disposal of the appeal on the basis of compromise arrived at between the parties and acquittal of the appellant even in respect of non-compoundable offences---In the best interest of justice, equity and fair play the compromise arrived at between the parties in the instant case in respect of compoundable offences viz. Ss.420 & 427, P.P.C, as well as non-compoundable offences was accepted/allowed to take effect---Appellant alleged that S.498-A P.P.C had been wrongly inserted in the charge which led to his subsequent conviction under S.498-A, P.P.C., by the Trial Court---As per record, in FIR No.93 of 2020, there was no mention of S.498-A, P.P.C.; therefore, insertion of said Section in the charge and conviction of the appellant under said Section by the Trial Court was not in consonance with law---At the time of transaction/mutation dated 17.11.2008, S.498-A, P.P.C. was not in the field/existence as it was promulgated by the Legislature through Criminal Law (Third Amendment) Act, 2011, vide Act No.XXVI of 2011 on 28th December, 2011; therefore said Section was wrongly inserted in the charge by the Trial Court---Prosecution alleged that at the time when the compromise application was not yet filed by the parties, the trial Court had rightly inserted and subsequently convicted the accused/appellant under S.498-A, P.P.C---However, after filing of compromise application, they also conceded to disposal of the appeal on the basis of compromise arrived at between the parties and acquittal of the appellant even for the offence under S.498-A, P.P.C, too---In view of said legal position, it could safely be held that insertion of S.498-A, P.P.C, in the charge framed by the Trial Court and subsequent conviction of the accused/ appellant for the offence under said Section was not warranted under the law---Compromise application was allowed, in circumstances---Consequently, Criminal Appeal stood allowed accordingly.

Bashir Ahmed Khan Sirewal v. Regiional Provincial Election Commissioner, Hyderabad 2022 YLR Note 123; Muhammad Waseem v. Sessions Judge, Islamabad and 2 others 2004 YLR 2867; Mukhtar Ali Qureshi v. Station House Officer, Police Station Westridge, Rawalpindi 2004 PCr.LJ 1545; Muhammad Ahmad v. S.H.O. and others 2005 MLD 1245; Mst. Ghazala Saeed v. Mst. Shakara Zafar and others 2005 YLR 1246; Muhammad Farooq v. Ahmed Nawaz Jagirani and others PLD 2016 SC 55; Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179; Muhammad Aslam v. The State and others 2017 SCMR 390; PLD 2012 (Central Statute) 145; Ashique Solangi and another v. The State PLD 2008 Kar. 420; Akhtar Hussain v. Station House Officer Sachal and 2 others 2020 PCr.LJ Note 20; Province of Punjab through Secretary C&W, Lahore and others v. Messrs Haroon Construction Company, Government Contractor and others 2024 SCMR 947; Faisal Zafar and another v. Siraj-Ud-Din and 4 others 2024 CLD 1; Netherlands Financierings Maatschappij Voor Ontickklingsslanden n.v. (f.m.o.) v. Morgah Valley Limited and SECP PLD 2024 Lahore 315 and Aamir and 2 others v. The State and another 2011 MLD 1468 ref.

Ashiq Solangi and another v. The State PLD 2008 Kar. 420; Aamir and 2 others v. The State and another 2011 MLD 1468; Ghulam Shabbir and 2 others v. The State 2003 SCMR 663; Ali Raza and another v. The State and another PLD 2013 Lah. 651; Tasawar Hussain v. The State and another 2021 YLR Note 124; Muhammad Jamil and others v. The State and another 2013 PCr.LJ 1458; Noor Rehman and another v. The State through Additional Advocate General, Darul Qaza Swat and another 2023 PCr.LJ 310; Muhammad Yousaf v. Muhammad Yousaf and another 2014 PCr.LJ 1517; Haji Nawaz Din v. The State PLD 1996 Lah. 304 and Abu Bakar v. The State 2006 PCr.LJ 659 Lah. rel.

Mahmood A. Qureshi, Jamshed Iqbal and Farhatullah for Appellant (in Criminal Appeal No. 492 of 2022).

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

Muhammad Ayoub Chaniho, Murtaza, Aftab Ahmed, Nazir Ahmed, Abid Ali, Sikandar Ali Shah for Appellant (in Criminal Acquittal Appeal No. 587 of 2022), for the Complainant (in Criminal Appeal No. 492 of 2022).

Musawir Gajani for Respondent (in Criminal Acquittal Appeal No. 587 of 2022).

Saalim Salam Ansari, Ramish Farhat, Amir Raza Dayo and Farhatullah for the Plaintiffs (in Civil Suits).

Dates of hearing: 24th April, 9th, 16th and 20th May, 2024.

Judgment

Muhammad Saleem Jessar, J.---Through this single judgment, I propose to dispose of above said Criminal Appeal as well as Cr. Acquittal Appeal, as both appeals are the outcome of one and the same FIR besides, factual as well as legal aspects in both cases are almost same.

1. Criminal Appeal No.492 of 2022 has been filed by Appellant Sohail Majeed Ayat against the judgment dated 06.08.2022 passed by IVth Additional Sessions Judge, Karachi East (the Trial Court) whereby appellant was convicted under section 265-H(2) Cr.P.C. for an offence punishable under section 498-A P.P.C. and sentenced to suffer R. I. for seven years and to pay fine of Rs.10,00,000/-. In case of default in payment of fine, he was ordered to suffer S.I for six months more. Appellant was also convicted for an offence punishable under section 468 P.P.C. and sentenced to suffer R. I. for five years and to pay fine of Rs.100,000/-. In case of default in payment of fine, he was ordered to suffer further S.I for three months more. Appellant was also convicted for an offence punishable under section 471 P.P.C. and sentenced to suffer R. I. for two years and to pay fine of Rs.30,000/-. In case of default in payment of fine, he was to suffer S.I for one month more. Appellant was also convicted for an offence punishable under section 420 P.P.C. and sentenced to suffer R. I. for five years and to pay fine of Rs.30,000/-. In case of default in payment of fine, he was to suffer S.I for three months more. Appellant was also convicted for an offence punishable under section 427 P.P.C. and sentenced to suffer R. I. for two years and to pay fine of Rs.10,000/-. In case of default in payment of fine, he was to suffer S.I for one Month more. However, the appellant was extended benefit under section 382-B Cr.P.C. All the sentences were ordered to run concurrently.

2. Through Crl. Acquittal Appeal No. 587 of 2022, Appellant/Complainant Asif Ibrahim has challenged acquittal of accused/respondent Mansoor Majeed Ayat vide same judgment.

3. Brief facts of the prosecution case, are that complainant Asif Ibrahim lodged FIR No.93/2020, at Police Station Ferozabad, Karachi East, for offences punishable under sections 420/468/471/ 427/34 P.P.C on 30.1.2020, stating therein that he resides at the address mentioned in the FIR along with his family and his mother in law. He possesses Power of Attorney in respect of above said house and is doing business. It was further alleged that on 05.10.2019 he was present at his house when at about 1230 hours he heard the commotion of breaking the roof, therefore he came outside the house and found that one gunman was standing at main gate and on seeing him, he took out weapon and on inquiry he disclosed that he had come along with builder Mohammad Amin and Farhan. Meanwhile, Amin and Farhan also reached there along with two unknown persons. The complainant enquired from them as to why they were breaking the roof, whereupon they showed him documents and Heir-ship Certificate and disclosed that they have purchased said house from Sohail Majeed and Mansoor Majeed who are owners of said house. It was further alleged in the FIR that thereafter the complainant informed the matter to 15 police and also moved application before concerned court. He also enquired from the society office and came to know that brothers of his mother in law namely, Sohail Majeed, Mansoor Majeed and deceased Ovais had obtained forged Heir-ship Certificate by way of fraud and produced the same in the society office and got transferred the property in their names. Thereafter, complainant got registered instant FIR against accused persons.

4. After usual investigation, the I.O. submitted challan before the concerned Judicial Magistrate, wherein he exonerated accused Mansoor Majeed under Section 497(2), Cr.P.C. whereas accused Sohail Majeed was shown to be in custody. The Judicial Magistrate after taking cognizance and obtaining receipt from accused under Section 241-A Cr.P.C. vide Ex:1, sent up R and Ps of the case to Sessions Judge, Karachi East, who marked the same to the trial Court for its disposal according to law.

5. During pendency of the trial complainant moved an application under Section 193 Cr.P.C. for summoning and joining Mansoor Majeed as co-accused in this case. Such his application was allowed by the trial Court vide order dated 02.09.2020 and summon were issued to the proposed accused Mansoor Majeed to join the proceedings as co-accused. Thereafter, Mansoor Majeed appeared and submitted surety in the sum of Rs.30,000/- and joined the trial.

6. A formal charge against accused persons was framed vide Ex: 3 to which they pleaded not guilty and claimed for trial vide their pleas Ex: 3/A and 3/B. At this stage, it is pointed out that in the FIR there was no mentioned of Section 498-A P.P.C; however, while framing the Charge, the trial Court added said section therein.

7. In order to prove its case, prosecution examined PW-1 complainant Asif Ibrahim at Ex.4, who produced certified copy of order dated 06.11.2019 passed in Cr. M.A. No:1490/2019, copy of FIR, 6 photographs, site inspection memo, certified copy of transfer order dated 17.11.2008 and power of attorney as Ex: 4/A to 4/F respectively. PW-2, Lubna Asif was examined at Ex.5, while PW-3, Arhan Yousuf and PW-4, Zahir Shah were examined at Ex:6 and Ex:7 respectively. PW-5, Oath Commissioner Zaib-un-Nisa, was examined at Ex:8, who produced affidavit, undertaking, indemnity bond, heirship certificate dated 07.11.2007, verification, heirship certificate dated 18.1.2020 as Ex:8/A to 8/F respectively. PW-6, Nawab Khan, Civil Judge was examined at Ex:9, who produced verification and letter of IO as Ex:9/A and 9/B respectively. PW-7, IO ASI Mohamad Saeed was examined at Ex.10, who produced entries No:31, 38 dated 31.1.2020 recorded at 1610 hours, entry No:38 dated 31.1.2020 recorded at 1930 hours, letter addressed to Secretary, PECHS, Karachi for verification of documents, report of Secretary along with documents (containing 51 pages), entry No;36, letter addressed to Notary Public, reply of Notary Public, letter addressed to SSP 15 for verification regarding calling 15 and report of SSP office as Ex:10/A to 10/J respectively. Thereafter, learned DDPP, appearing for the State, closed prosecution side vide Statement Ex.11.

8. Statements of accused under Section 342 Cr. P.C. were recorded at Ex.12 and 13, wherein they denied the allegations of the prosecution levelled against them and claimed their false implication in the case by the police; however, accused persons neither examined themselves on oath under Section 340(2) Cr.P.C. nor produced any witness in their defence. However, accused Sohail Majeed filed written statement under Section 265-F(5) Cr.P.C. and annexed therewith certified copies of Plaint and Written Statement filed in Suit No.1322/2018, affidavit / undertaking, family agreement, Wasiyatnama and statements as 'A' to 'D'.

9. After formulating the points for determination in the case, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced accused Sohail Majeed and acquitted accused Mansoor Majeed as stated above, hence these two appeals.

10. I have heard learned advocates appearing for the appellant, complainant and acquitted accused as well as learned Deputy P.G. appearing for the State and perused the material available on the record with their assistance.

11. In instant case, on various dates arguments of learned counsel for the parties as well as learned Deputy P.G. appearing for the State were heard.

12. On 24.04.2024 learned counsel for the appellant in Criminal Appeal No.492 of 2022 raised legal objection upon the Charge framed by the trial Court against the accused (available as Ex.03 at page-37 of the paper book) on the ground that in the FIR No.93 of 2020 registered at P.S. Ferozabad, Karachi, (available at page-55 of the paper book), there was no mention of Section 498-A P.P.C, thus the trial Court had wrongly framed charge against the appellant under Section 498-A P.P.C. In support of his plea, learned counsel submitted that at the time of transaction / mutation dated 17.11.2008 (available at page-73 of the paper book), section 498-A P.P.C was not in the field / existence as it was promulgated by the Legislature through Criminal Law (Third Amendment) Act, 2011 (Act No.XXVI of 2011) on 28th December, 2011; therefore, on this score alone, by allowing the appeal, case may be remanded for de novo trial.

13. On the other hand, learned counsel for the complainant opposed the proposal and submitted that general power of attorney was executed by the accused / respondent on 04.05.2018 (available at page-77 of the paper book) and FIR was lodged on 30.01.2020, therefore, the trial Court had rightly framed the charge. In support of his contention, he placed reliance upon the case of Bashir Ahmed Khan Sirewal v. Regional Provincial Election Commissioner, Hyderabad (2022 YLR Note 123).

14. Learned Additional P.G. Sindh submitted that though the mutation with regard to disputed property by which women legal heirs were deprived of their due share in the property left by their elders was effected in the year 2008; however, further sale agreement through general power of attorney was effected in the year 2018 and subsequently the FIR was lodged on 30.01.2020, therefore, sequence of offence continued to accrue; hence, the trial Court had rightly framed the charge. In the circumstances, according to him, there is no need to remand the case for de novo trial.

15. On 09.05.2024 learned counsel for the appellant in Criminal Appeal No.492 of 2022 submitted that no clause was added in Criminal Law (Third Amendment), Act, XXVII of 2011 whereby Section 498-A to C P.P.C was inserted by the Legislature in the year 2011 thereby making said newly inserted provision of law to be effective retrospectively. He referred to the mutation order effected on 17.11.2008 (available at page-73 of the paper book), Affidavits of the legal heirs sworn on 25.06.2007 (available at page-127 of the paper book), undertaking executed in the month of February, 2007 (available at page-131 of the paper book), Indemnity Bond executed on 25.06.2007 (available at page-133 of the paper book), legal Heirship Certificate issued by the concerned on 17.01.2007 (available at page-137 of the paper book) and submitted that the trial Court has committed a penal defect by adding Section 498-A P.P.C in the Charge and subsequently convicting the appellant under said provision of law which is not curable. He, therefore, prayed that by allowing instant appeal, impugned judgment may be set-aside and the case may be remanded to the appropriate forum for de novo trial. With regard to the contention raised by learned counsel for the complainant that power of attorney was executed by the appellant and others in the year 2018, therefore, provision of Section 498-A P.P.C would be applicable, learned counsel for the appellant submitted that it cannot be termed to be in continuation of the crime chain but it was executed upon the mutation effected in the year 2007; hence, it would not make the said provision of law to take retrospective effect. In support of his contention, learned counsel placed reliance upon an unreported judgment passed by learned Bench of Lahore High Court in Writ Petition No.15477 of 2021 (re-Muhammad Ajmal v. Ex-Officio Justice of Pence/Additional Sessions Judge, Burewala, and 10 others), as well as cases of Muhammad Waseem v. Sessions Judge, Islamabad and 2 others (2004 YLR 2867), Mukhtar Ali Qureshi v. Station House Officer, Police Station Westridge, Rawalpindi (2004 PCr.LJ 1545), Muhammad Ahmad v. S.H.O. and others (2005 MLD 1245), Mst. Ghazala Saeed v. Mst. Shakara Zafar and others (2005 YLR 1246). Lastly, learned counsel submitted that when concurrent jurisdiction is provided by the law, the first remedy always lies with the lower forum and not before any Apex forum. In support of his contention, learned counsel placed reliance upon the case of Muhammad Farooq v. Ahmed Nawaz Jagirani and others (PLD 2016 SC 55).

16. Learned Deputy P.G. Sindh, appearing for the State, opposed the appeal, so also the proposal advanced by learned counsel for the appellant and submitted that trial Court has rightly convicted and sentenced the appellant. He referred to Charge (available at page-37 of the paper book). He also referred to page-153 of the paper book and submitted that legal Heirship Certificate produced by the appellant through SHO was verified; hence, Civil Judge and Judicial Magistrate-III, West Karachi had declared that no such Heirship Certificate was issued on 17.01.2007. He further submitted that when the appellant had not come with clean hands and knowingly deprived the women legal heirs of their share in the inherent property, he does not deserve to be extended any leniency. He, therefore, submitted that by dismissing the appeal in hand, conviction and sentences awarded to the appellant may be maintained.

17. Learned counsel for the complainant, while opposing the appeal, referred to challan / charge sheet (available at page-363 of the paper book) whereby learned Magistrate had accepted the charge sheet through his order dated 26.02.2020 by mentioning therein that the offence with which appellant was charged, is exclusively triable by the Court of Session; thus, sent the case papers to the Court of Session for trial. He submitted that said observations made by the Magistrate were not assailed by the appellant and even charge framed by the trial Court was not made questionable by the appellant before any forum, therefore, at this belated stage, they cannot seek such relief. As far as, case of the respondent in Criminal Acquittal Appeal is concerned, learned counsel submitted that he was released by the police during investigation, therefore, they moved an application under Section 193 Cr.P.C. which by means of order dated 02.09.2020 was allowed (available at page-43 of the Court file), therefore, he has wrongly been acquitted by the trial Court. He referred to paras-3 and 4 of the Affidavit sworn in by the appellant / respondent (available at page-127 of the paper book) and submitted that they had clearly committed fraud and concealed the real facts, therefore, they are not entitled to the reliefs sought by them. He further submitted that by depriving women of their vested rights in the inherited property, appellant had also violated the mandatory provisions of Articles 24(i), 25(ii) and 37 of the Constitution of Islamic Republic of Pakistan, 1973. In support of his contention, learned counsel placed reliance upon the case of Farhan Aslam and others v. Mst. Nuzba Shaheen and another (2021 SCMR 179), an unreported judgment dated 01.12.2023 passed by learned Apex Court in Civil Appeal No.26-Q of 2017, case of Muhammad Aslam v. The State and others (2017 SCMR 390) and also referred to the statement of accused (available at page-323 of the paper book) and submitted that motive of the appellant was to deprive the woman of her vested rights which is in contravention of Articles 18 and 21 of the Qanun-e-Shahadat Order, 1984. In this regard, learned counsel referred to question No.1 in the Statement of accused under Section 342 Cr.P.C, so also answer to question No.7 of said statement. He also argued that appellant had not assailed the order passed by learned Magistrate whereby he had accepted challan / charge sheet and subsequently learned trial Court framed charge against him in terms of section 498-A P.P.C.

18. However, thereafter the parties patched up their differences / dispute amicably. Consequently, on 16.05.2024 when the case was fixed for further arguments, at the very outset, learned counsel for appellant Sohail Majeed Ayat submitted that parties had agreed to enter into settlement outside the Court, therefore, a short adjournment may be granted so that he may file proper compromise application in writing. He, however, submitted that persons who had filed Civil Suits in relation to the dispute between the parties, which are pending adjudication before this Court, may also be directed to remain present before the Court on the next date for witnessing the compromise / settlement transaction. Learned counsel appearing for the complainant as well as respondents, so also learned Deputy P.G. Sindh also raised no objection to such request. Accordingly, it was ordered that Mansoor Majeed Ayat, who has filed Suit No.394 of 2020 for Partition, Cancellation of Document and Declaration, Farhan Yousif, the Builder, who has filed Suit No.553 of 2019 for Specific Performance of the Contract as well as Injunction and legal heirs of Mst. Shamim Yasin (since deceased), who had filed Suit No.1322 of 2018 for Partition, Cancellation of Documents and Injunction, were also directed to remain present before this Court on the next date of hearing along with their written statements, if any, as well as CNICs, and accordingly by consent of the parties, case was adjourned to 20.05.2024.

19. On 20.05.2024, in compliance with the directions issued as well as undertaking given by the appellant on 16.05.2024, appellant Sohail Majeed Ayat had brought two Pay Orders bearing No.7381221 for the sum of Rs.7,500,000/- and No.7381220 for the sum of Rs.7,500,000/- issued in favour of legal heirs of the complainant namely, deceased Shoaib Yasin CNIC No.61101- 6856550-7 and Lubna Asif having CNIC No.42201-8856766-8. The appellant handed over captioned pay orders to them, in Court. Upon receipt of said Pay Orders, both legal heirs of deceased complainant, who are also Plaintiffs in Civil Suit No.1322 of 2018 filed by their mother Ms. Shamim Yasin (deceased), undertook that they shall withdraw from Civil Suit No. 1322 of 2018, which is pending adjudication before this Court, on the coming date.

20. Messrs Farhan Yousuf and Fahad Amin, the Builders, who too had filed Civil Suit No.553 of 2019, were also present and had brought 18 Pay Orders bearing Nos. 2449629, 2449630, 2449631, 2449649, 2449650, 5226670, 1106388, 1106389, 1033446, 1106210, 1106211, 2449627, 2449628, 4738433, 4738434, 4738435, 4738430 and 7381279, total amounting to Rs.17,000,000/- (Rupees Seventeen Million), issued in favour of legal heirs of deceased complainant / Plaintiff in Civil Suit No.1322 of 2018 and had undertaken to deposit the same on the same day before the Nazir of this Court. The Plaintiffs in Civil Suit No.553 of 2019 further submitted that said amount shall be drawn by the legal heirs of deceased complainant Ms. Shamim Yasin, subject to handing over the remaining portion of property in suit to them within three (3) months' time.

21. Farhan Yousuf, Plaintiff, as well as attorney of co-Plaintiff Fahad Amin, also undertook to withdraw from Civil Suit No.553 of 2019, pending adjudication before this Court, on the coming date. He further submitted that major portion of the property in dispute is already in their possession; however, so far as remaining portion is concerned, appellant Sohail Majeed Ayat has handed over two Pay Orders to legal heirs of deceased complainant on the said date in Court, while he had also brought 18 Pay Orders mentioned above, duly issued and prepared in their favour, which they undertook to deposit before Nazir of this Court on the same day. They, therefore, requested that legal heirs of deceased may be directed to hand over peaceful and vacant possession of remaining area of the property in suit to them within three (3) months' time. Accordingly, legal heirs of deceased complainant Ms. Shamim Yasin namely, Shoaib Yasin and Lubna Asif undertook that they shall vacate the suit premises and hand over its peaceful, vacant and safe possession to M/s. Farhan Yousuf and Fahad Amin, in presence of Nazir of this Court in terms of their joint application for settlement, without fail.

22. Mr. Mahmood A. Qureshi, learned counsel for appellant Sohail Majeed Ayat, reiterated that Section 498-A P.P.C was promulgated by the Legislature on 28.12.2011 duly published in PLD 2012 {Central Statute} 145; whereas, instant offence, as is evident, had occurred in the year 2007 and mutation with regard to disputed property was effected in the year 2008, therefore, Section 498-A P.P.C was wrongly applied and added by the trial Court in the Charge. He further submitted that since the Legislature had not provided retrospective effect in respect of said offence, therefore, conviction and sentence awarded to appellant in terms of Section 498-A P.P.C is unjustified and cannot be maintained; hence, he prayed that conviction and sentence awarded to appellant Sohail Majeed Ayat to that extent may be set-aside. As far as, remaining Sections are concerned, learned counsel submitted that although he intended to make a prayer for remand of the case for its fresh trial before the appropriate forum; however, since the parties have entered into settlement / compromise outside the Court, thereby have buried their hatchets and do not want to prosecute each other on both counts, as such, in order to maintain peace and tranquility as well as law and order situation in the area, he would submit that it will be appropriate to consider their submissions by treating said offences as compoundable. He further submitted that though the sections are not compoundable; however, dispute between the parties is over inherited property and that being the case of civil rights, was to be adjudicated upon by the proper forum; however, at this juncture, as both the parties have settled their differences and have filed a joint application for settlement (being M.A No.6646 of 2024), which too is supported by their respective affidavits, whereby appellant has compensated the legal heirs of deceased Shamim Yasin in terms of Pay Orders mentioned above while remaining amount / compensation is to be deposited by the builders M/s. Farhan Yousuf and Fahad Amin, therefore, it would be in the best interest of justice that said compromise application may be allowed and appellant Sohail Majeed Ayat may be acquitted of the charges.

23. Accordingly the joint application for settlement (bearing M.A No.6646 of 2024) which is supported by the affidavits of all concerned and are duly sworn in by them in the office, was taken on record.

24. Complainant Asif Ibrahim, who is also husband of Ms. Lubna Asif / legal heirs of deceased Shamim Yasin / victim of the crime, in view of above discussion and joint application filed by them for settlement, also did not wish to press connected appeal against acquittal of respondent Mansoor Majeed Ayat. He also raised no objection to the grant of Criminal Appeal No.492 of 2022 as well as acquittal of appellant Sohail Majeed Ayat. He admitted the contents of joint application for settlement filed by them on said date before this Court. Complainant further undertook that they would hand over vacant and peaceful possession of remaining property in suit to M/s. Farhan Yousuf and Fahad Amin within three (3) months' time, in presence of Nazir of this Court, subject to payment of compensation of amount of Rs.17 Million to them.

25. Learned Deputy PG Sindh, submitted that dispute between the parties was over inheritance and since the convict/appellant as well as other stakeholders; including builders Farhan Yousuf and Fahad Amin (on Court notice), have undertaken to deposit amount of Rs.17 Million before Nazir of this Court on said date and as victim legal heirs of deceased Shamim Yasin have been compensated, therefore, he also raised no objection to the grant of instant appeal on the basis of joint application for settlement filed by the parties on the said date, as well as acquittal of appellant Sohail Majeed Ayat. As far as Section 498-A P.P.C is concerned, learned Deputy P.G submitted that it was promulgated on 28.12.2011 and the offence as well as mutation in respect of the property in dispute had occurred/mutated in the year 2007-08; hence, legislature had not provided any provision or clause by which section 498-A P.P.C has been given retrospective effect, therefore, it was not applicable and the trial Court has wrongly added it in the Charge. He, therefore, submitted that conviction and sentences awarded to appellant to the extent of Section 498-A P.P.C, is not maintainable. As far as, remaining sections are concerned, learned Deputy P.G, submitted that though said sections are not compoundable; however, as the parties have settled down their differences outside the Court and they do not want to prosecute each other anymore; thus, a joint application for settlement filed by the appellant as well as legal heirs of deceased Shamim Yasin and others, who although are not direct party to these proceedings but are involved in captioned Civil Suits filed by them which are still pending adjudication before this Court, thus they being necessary parties, have also extended their no objection. Hence, in view of dicta laid down by this Court in cases of Ashique Solangi and another v. The State (PLD 2008 Karachi 420) and Akhtar Hussain v. Station House Officer Sachal and 2 others (2020 PCr.LJ) Note 20), he has no objection to the grant of the appeal.

26. As far as, non-compoundability of the offences is concerned, learned DPG submitted that since upon the persuasion of the Court for reconciliation, parties have agreed to settle all of their disputes / differences amicably, and, thus, have filed a joint application for settlement viz. M.A No.6646 of 2024 thereby they have entered into compromise and settled down their differences; hence, the application bearing M.A No.6646 of 2024 may be termed and treated as an initiative in terms of provisions contained under Alternative Dispute Resolution Act (II of 2017) therefore, in order to resolve the dispute through mediation which provides many aspects for deliberation, reconciliation as well as compromise, even the non-compoundable offences with which appellant has been charged, may be permitted to be compounded and on the basis of such settlement between the parties, by granting listed application, appeal in hand may be allowed.

27. Accordingly and in view of dicta laid down by the Honourable Supreme Court of Pakistan in cases of Province Of Punjab through Secretary C&W, Lahore and others v. Messrs Haroon Construction Company, Government Contractor and others (2024 SCMR 947), Faisal Zafar and another v. Siraj-Ud-Din and 4 others (2024 CLD 1), Netherlands Financierings Maatschappij Voor Ontickklingsslanden n.v. (f.m.o.) v. Morgah Valley Limited and SECP (PLD 2024 Lahore 315) and Aamir and 2 others v. The State and another (2011 MLD 1468). listed application bearing M.A No.6646 of 2024 was allowed on the terms and conditions described and mentioned under the application.

28. Now, I proceed to assign reasons for the above said short order.

29. The moot point to be determined in the instant case is; as to whether in the circumstances of the case, compromise between the parties could be allowed in respect of non-compoundable offences?

30. Learned counsel for the complainant, so also advocate for the appellant in Cr. Acquittal Appeal, as well as learned D.P.G. appearing for the State, prior to filing of compromise application, had supported the conviction and sentence awarded to the accused / appellant; however, after filing of compromise application, they also conceded to disposal of the appeal on the basis of compromise arrived at between the parties and acquittal of the appellant even in respect of non-compoundable offences.

31. It may be observed that the Superior Courts have held that compromise is meant to promote harmonious living and maintain cordial relations between the parties, therefore, even in non-compoundable offences if the complainant / victim himself does not want to pursue the case any further, then the courts may accept the compromise arrived at between the parties.

32. In this connection, guidance could be sought from the following decisions.

33. In case of Ashiq Solangi and another v. The State (PLD 2008 Karachi 420), learned Bench of this Court, held as under:

"2. The applicants were convicted under sections 452, 337-H(2), 506/2 and 148, P.P.C. The legal question is that certain offences are compoundable and certain offences are not compoundable. I am of the clear view that if the main offence is compoundable and parties have compromised against themselves then the small offences should be treated as compromised though under the statute those are not compoundable. In the present revision keeping in view the compromise which has taken place between the parties outside the Court, it is not proper to uphold the conviction specially when the complainant does not want to pursue his case anymore. In the circumstances I accept the revision application and order acquittal of both the applicants from the charge. Their conviction and sentence is set aside. They are present on bail, their bail bonds are cancelled and sureties discharged."

1. In case of Aamir and 2 others v. The State and another (2011 MLD 1468 [Lahore]), Honourale Lahore High Court, held as under:

"9. Now I advert to the factum whether compromise can be effected in non-compoundable offence. I am of the view that the compromise is meant to promote harmonious living and maintain cordial relations between the parties. This view was affirmed by august Supreme Court of Pakistan in the case of Ghulam Shabbir and 2 others v. The State (2003 SCMR 663)."

1. In case of Ghulam Shabbir and 2 others v. The State, reported in 2003 SCMR 663, decided by a Full Bench of Honourable Supreme Court, which was also relied upon in the case of AAMIR and 2 others (supra), the accused were tried for the charge under sections 302/324/337-A(ii)/148 and 149, P.P.C read with section 9 and sections 6, 7 and 8 of Anti-Terrorism Act, 1997 by the Special Court constituted under Anti-Terrorism Act, 1997, in pursuance of FIR No. 174, dated 13th August, 1993 registered at Police Station Jand, District Attock. On conclusion of the trial the trial Court found the accused persons guilty of the charge and vide judgment dated 23rd September 2000 convicted and sentenced them for the abovesaid offences. The accused were also convicted under Section 9 of ATA, 1997 and sentenced to undergo 4 years' R.I. each with fine of Rs.10,000 each in default whereof to undergo 2 months' R.I. In Appeal, Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi, modified the sentences awarded under Sections 302/149, whereas the accused were acquitted for the offences under Sections 324/149 P.P.C. However, rest of the conviction / sentence was maintained, which also included conviction and sentence of R.I. for four years under Section 9 of the ATA, 1997. Thereafter, a Criminal Miscellaneous Application was filed on behalf of the accused persons, wherein it was stated that rival parties have compounded the offence and have forgiven to each other in the name of Almighty Allah and in this behalf a compromise had been effected, therefore, it was prayed that the same may be accepted and the accused may be acquitted of the charge. Honourable Supreme Court allowed said application holding as under:

"Accordingly, the permission to compound the offence in view of subsection (5) of section 345 of the Cr.P.C. is accorded to the parties in order to maintain cordial relations and bury their hatchets forever. Resultantly, Criminal Miscellaneous No. 123 of 2002 is allowed…… Since leave to compound the offence is allowed, as such we set aside the conviction / sentence of the petitioners as well as impugned judgment dated 25th September, 2001. The petitioners namely Ghulam Shabbir son of Ghulam Yousaf, Ghulam Raza son of Ghulam Mohi-e-Din and Mushtaq Ahmed are acquitted under subsection (6) of section 345, Cr.P.C. They are directed to be released forthwith, if not required in any other case."

1. It may be pointed out that in captioned case Honourable Supreme Court allowed the compromise application although the accused were also convicted under Section 9 of the Anti-Terrorism Act, 1997 which is a non-compoundable offence.

2. In another case of Ali Raza and another v. The State and another, reported in PLD 2013 Lahore 651, it was held as under:

"If the loss allegedly sustained by the complainant and his wife at the hands of the accused / petitioners has been made good, to their entire satisfaction, there may be no harm in allowing the instant applications for bail after arrest. Even otherwise, it has always been observed that the compromise even in non-compoundable offences is a redeeming factor, which brings peace, harmony and coherence in the society and it may have far-reaching positive effects, in the lives of warring-parties."

1. In case of Tasawar Hussain v. The State and another (2021 YLR Note 124 [Islamabad]), it was held as under:

"7. Section 345, Cr.P.C. relates to compounding offences and subsection (1) of section 345 provides that the offences under the sections of the Pakistan Penal Code specified in the first and second columns of the table given therein may be compounded by the persons mentioned in the third column of that table.

8. Offence of robbery as mentioned in section 392 of Pakistan Penal Code does not find mention in the table given in section 345, subsection (1) of the Criminal Procedure Code and, therefore, is not compoundable. Similarly, section 411 of Pakistan Penal Code does not figure in the table mentioned under section 345, Cr.P.C. and, therefore, is not compoundable. However, the fact that the complainant himself has executed the affidavit, wherein he has undertaken that he has forgiven the petitioner/accused on the name of Allah Almighty and shall have no objection if the petitioner / accused is acquitted or released on bail after arrest, may be considered as the ground for the grant of bail in the interest of justice and equity. Where the complainant party is no longer willing to prosecute the matter any further then it is not for this Court or the Courts subordinate to it to compel the parties to do so, as the saying goes, "you can take the horse till the water but you cannot make him drink".

1. In the similar case reported in "Muhammad Akram v. The State 1995 MLD page 1826" the factum of compromise was taken into consideration and bail was granted. More or less, the same view was taken in a case of rape in the case reported in "Mst. Mussarat Elahi alias Bibi v. The State 1997 PCr.LJ 1193", and the Supreme Court of Pakistan took judicial notice of a compromise in a matter which was otherwise not compoundable and converted the petition for Special Leave to Appeal into an appeal and, therefore, accepted the appeal by reducing the sentence to that which had already been undergone in the case of Ghulam Ali v. The State reported as 1997 SCMR 1411.

10. Thus, I am fortified in my opinion that judicial notice of a compromise having taken place can be taken even in offences which are not compoundable.

1. In case of Muhammad Jamil and others v. The State and another, reported in 2013 PCr.LJ 1458 [Lahore], it was held as under:

"Though, the accusations, mentioned in the FIR, constitute non-compoundable offences yet, compromise / reconciliation between the parties has always been held a redeeming feature, which brings peace and harmony in the society and only for this reason, the courts have always respected enthusiasms and passion of the parties to compound the offence, being compoundable or not. This is of course, not a job of the courts to pressurize the parties to continue with their hostilities or prosecute each other for years."

1. In view of above, it would be in the best interest of justice, equity and fair play that the compromise arrived at between the parties in the instant case in respect of compoundable offences viz. Sections 420 and 427 P.P.C as well as non-compoundable offences is accepted / allowed to take effect.

2. Now I advert to the contention of learned counsel for the appellant in respect of wrongful insertion of Section 498-A P.P.C in the Charge and subsequent conviction of the appellant under section 498-A P.P.C by the trial Court. According to learned counsel, in FIR No.93 of 2020 registered at P.S. Ferozabad, Karachi, there was no mention of Section 498-A P.P.C; therefore, insertion of said Section in the Charge and conviction of the appellant under said Section by the trial Court was not in consonance with law. According to learned counsel, at the time of transaction / mutation dated 17.11.2008, section 498-A P.P.C was not in the field / existence as it was promulgated by the Legislature through Criminal Law (Third Amendment) Act, 2011 vide Act No.XXVI of 2011 on 28th December, 2011; therefore said section was wrongly inserted in the Charge by the trial Court. The learned counsel for rival parties as well as learned A.P.G. appearing for the State, at the time when the compromise application was not yet filed by the parties, submitted that the trial Court has rightly inserted and subsequently convicted the accused / appellant under Section 498-A P.P.C; however, after filing of compromise application, they also conceded to disposal of the appeal on the basis of compromise arrived at between the parties and acquittal of the appellant even for the offence under section 498-A P.P.C too.

3. I find weight in said legal plea raised by appellant's counsel. In this connection, it would be advantageous to refer to a judgment pronounced in the case of Noor Rehman and another v. The State through Additional Advocate General, Darul Qaza, Swat and another, reported in 2023 PCr.LJ 310 [Peshawar (Mingora Bench)]. It was held by a Division Bench in captioned case as under:

"7. During the course of arguments on 03.09.2019, it surfaced from the record that the murder in the present case, having been allegedly committed on the pretext of honor, is non-compoundable in terms of section 345, Cr.P.C, however, the aforesaid bar was introduced through Criminal Law (Amendment) (Offences in the Name of or on Pretext of Honor) Act, 2016 and later on extended to PATA. Thus, the main question which arose at that juncture was that as to whether the said Act can be applied to the present case which was committed prior to the enforcement of the Act. For resolution of the said controversy, M/s Aurngzeb, Sabir Shah, Masood-ur-Rehman, Barrister Asad-ur -Rehman, Jehanzeb Buneri and Aziz Ahmad Hashmi Advocates were appointed as amici curiae who assisted this Court regarding the applicability and retrospective effect of section 311, P.P.C. read with section 345, Cr.P.C. Thereafter, record of the case was sent to trial Court for confirmation of compromise with directions to submit a detailed report before this Court which has already been received.

8. Admittedly, the clog on compromise in honor killing cases was introduced through Criminal Law (Amendment) (Offences in the Name or on pretext of Honor) Act, 2016. Prior to that the offence of honor killing was compoundable though of course with permission of Court, however, thereafter the ibid Amendment Act, 2016 was brought restricting compromise in honor killing cases. The moot questions before this Court are whether the said Act would have retrospective effect on the present case and what would be the relevant date of composition of the offence in question. The relevant date of composition of offence, in our view, would be the date on which the occurrence took place. In the present case the occurrence of alleged honor killing took place in 2011 and by that time the said offence was compoundable albeit with permission of Court, therefore, the bar of compromise introduced through the Amendment Act, 2016 cannot be made retrospectively applicable to this case."

1. In case of Muhammad Yousaf v. Muhammad Yousaf and another, reported in 2014 PCr.LJ 1517 [Lahore], it was held as under:

"It is the admitted position on the record that at the time of issuance of the disputed cheques, the law did not exist for taking cognizance in respect of the issuance of negotiable instrument drawn dishonestly and to avoid the liability, but it existed at the time of availing the remedy before the court that is why FIR was registered under section 489-F, P.P.C. on 30-5-2004 much after the promulgation of the said provisions of law. It is settled principle of law that a lis shall be dealt with in accordance with the law available at the time of accrual of a right to sue in favour of a person and this principle has been envisaged in case of "Colonial Sugar Mills" reported as 1905 Appeal Cases 369, subsequently, followed in chain of cases. Although the right to sue in favour of the appellant had existed on the date of issuance of the cheques but he did not set into motion criminal machinery at that time, thus a valuable right has accrued in favour of respondent, of which he cannot be deprived due to indolence of appellant. The learned trial Court keeping in view these facts that section 489-F, P.P.C. has no retrospective effect and is prospective in nature has not committed any illegality nor the order passed under section 249-A, Cr.P.C. can be treated as perverse or against the canons of law, as such, the same is liable to be maintained."

1. In case of Haji Nawab Din v. The State (PLD 1996 Lahore 304), it was held as under:

"7. The petitioner allegedly committed an offence under Article 3/4, the as Prohibition (Enforcement of Hadd) Order 4, 1979 on 4-3-1992 which was punishable with imprisonment for life or with imprisonment which is not less than 2 years and whipping not exceeding 30 stripes and shall also be liable to fine. The persons accused of these offences were not liable to be punished to death. The trial of the petitioners for the offences under section 9(c) of the Ordinance would be in violation of the safeguard provided under Article 12 of the Constitution of Islamic Republic of Pakistan, 1973. In the Ordinance Vl, 1995 it is nowhere provided that it would have retrospective effect. The Ordinance cannot be termed merely a procedural law but it materially affect the rights of the individuals, and therefore, cannot be permitted to have retrospective effect. As a matter of fact this Ordinance is prospective in nature and persons who committed the offences prohibited by this Ordinance on the day of its enforcement or thereafter shall be governed by this Ordinance and not the persons who have committed offences prior to its enforcement. The nexus is the time of commission of offence and not the time of commencement of the trial or its conclusion. Any piece of legislation which deals with the punishment cannot be termed mere a procedural legislation."

1. In case of Abu Bakar v. The State, reported in 2006 PCr.LJ 659 [Lahore], it was held as under:

"6. The instant case was registered in the year, 1994 when neither the Control of Narcotic Substances Ordinance, 1995 nor Control of Narcotic Substances Act, 1997 was enforced……Control of Narcotics Substances Act, 1995 was enforced on 15-8-1995 and section 9 of the Ordinance enhanced the punishment of life imprisonment to death and also provided that the amount of fine shall not be less than Rs.1,00.000, however, this Ordinance being a Penal Ordinance cannot have retrospective effect and the petitioner cannot be tried or charged for the offence under section 9(c) of Control of Narcotics Substances Ordinance, 1965. Moreover, Article 12 of the Constitution of Islamic Republic of Pakistan, 1973 safeguards the petitioner's right and provides protection against retrospective punishment."

1. In view of above legal position, it can safely be held that insertion of Section 498-A P.P.C in the Charge framed by the trial Court and subsequent conviction of the accused / appellant for the offence under said section was not warranted under the law, so also it was contrary to the dictum laid down by the Superior Courts from time to time.

2. The upshot of above discussion is that Compromise Application (M.A No.6646 of 2024), is granted. Consequently, Criminal Appeal No.492 of 2022 stands allowed and the impugned judgment dated 06.08.2022 penned down by learned 4th Addl. Sessions Judge, Karachi (East) in Sessions Case No.761 of 2020 (re-the State v. Sohail Majeed Ayat and another) being outcome of FIR No.93 of 2020 registered at P.S. Ferozabad, Karachi, for offences under Sections 498-A, 468, 471, 427, 420, 34 P.P.C is set-aside to the extent of conviction and sentence of appellant Sohail Majeed Ayat only. Resultantly, Appellant Sohail Majeed Ayat is acquitted of the charges; he was present on bail, therefore, his bail bond stood cancelled and surety furnished by him was ordered to be discharged. As learned counsel for the complainant did not press Criminal Acquittal Appeal No.587 of 2022, therefore, Appeal against Acquittal is hereby dismissed, as not pressed.

3. The details of compromise as well as undertakings given by the respective parties were elaborately mentioned in the short order dated 20.5.2024. The said order, which is being reproduced hereunder, shall be deemed to be part and parcel of this judgment:

"In compliance of directions as well as undertaking given by the appellant vide order dated 16.05.2024, appellant Sohail Majeed Ayat has brought two Pay Orders bearing Nos.7381221 amounting to Rs.7,500,000/- and No.7381220 amounting to Rs.7,500,000/- issued in favour of legal heirs of the complainant (deceased) namely Shoaib Yasin CNIC No.61101- 6856550-7 and Lubna Asif having CNIC No.42201-8856766-8. The appellant handed over above Pay Orders to them, in Court. Upon receipt of said Money Orders, both legal heirs of deceased complainant, who are also Plaintiffs in Civil Suit No.1322 of 2018 filed by their mother Ms. Shamim Yasin (deceased), undertake that they shall withdraw from Civil Suit No. 1322 of 2018, which is pending adjudication before this Court, on the coming date.

M/s. Farhan Yousuf and Fahad Amin, the Builders, who too had filed Civil Suit No.553 of 2019, are present and have brought 18 Pay Orders bearing Nos. 2449629, 2449630, 2449631, 2449649, 2449650, 5226670, 1106388, 1106389, 1033446, 1106210, 1106211, 2449627, 2449628, 4738433, 4738434, 4738435, 4738430 and 7381279, total amounting to Rs.17,000,000/- (Rupees Seventeen Million), issued in favour of legal heirs of deceased complainant/Plaintiff in Civil Suit No.1322 of 2018 and undertake to deposit the same today before Nazir of this Court. The Plaintiffs of Civil Suit No.553 of 2019 further submit that said amount shall be drawn by the legal heirs of deceased complainant Ms. Shamim Yasin subject to handing over the remaining portion of property in suit to them within three (3) months' time.

Mr. Farhan Yousuf, Plaintiff as well as attorney of co-Plaintiff Fahad Amin also undertakes to withdraw from Civil Suit No.553 of 2019, pending adjudication before this Court, on the coming date. He further submits that major portion of the property in dispute is already in their possession; however, as far as remaining portion is concerned, appellant Sohail Majeed Ayat has handed over two Pay Orders to legal heirs of deceased complainant today, in Court, while he has also brought 18 Pay Orders mentioned above, duly issued and prepared in their favour, is going to be deposited before Nazir of this Court today; hence, legal heirs of deceased may be directed to hand over peaceful and vacant possession of remaining area of the property in suit to them within three (3) months' time. Legal heirs of deceased complainant Ms. Shamim Yasin namely Shoaib Yasin and Lubna Asif undertake that they shall vacate the premises in suit and hand over its peaceful, vacant and safe possession to M/s. Farhan Yousuf and Fahad Amin, in presence of Nazir of this Court in terms of their joint application for settlement, without fail.

Mr. Mahmood A. Qureshi, learned counsel for appellant Sohail Majeed Ayat, submits that Section 498-A P.P.C was promulgated by the Legislature on 28.12.2011 vide PLD 2012 Central Statute 145; whereas, instant offence, as is evident, had occurred in the year 2007 and mutation with regard to disputed property was effected in the year 2008, therefore, Section 498-A P.P.C was wrongly applied and added by the trial Court under the charge. He further went on to say that since the Legislature had not provided retrospective effect, therefore, conviction and sentences awarded to appellant in terms of Section 498- A P.P.C are unjustified and cannot be maintained to; hence, submits that conviction and sentences awarded to appellant Sohail Majeed Ayat to that extent may be set-aside. As far as, remaining Sections are concerned, learned counsel submits that he had to make a prayer for remand of the case for its trial before the appropriate forum and since the parties have entered into settlement / compromise outside the Court, thereby have buried their hatchets and do not want to prosecute each other on both counts. In order to maintain peace and tranquility as well as law and order situation in the area, it will be appropriate to consider their submissions by treating said offences as compoundable. He further submits that though the sections are not compoundable; however, dispute between the parties is over inherited property and that being the case of civil rights was to be adjudicated upon, by the proper forum; however, at this juncture, both the parties have settled their differences and filed a joint application for settlement (bearing M.A No.6646 of 2024), which too is supported by their respective affidavits, for which appellant has compensated the legal heirs of deceased Shamim Yasin in terms of Pay Orders mentioned above while remaining amount/compensation is to be deposited by the builders M/s. Farhan Yousuf and Fahad Amin. Learned counsel submits that Court has already adopted Alternative Dispute Resolution for reconciliation and settlement of the dispute between the parties, therefore, a joint application for settlement submitted by the parties may be considered and appellant Sohail Majeed Ayat may be acquitted of the charges by way of compromise. Hence, he prays for grant of appeal as well as setting aside of the impugned judgment. In support of his contention, learned counsel files a joint application for settlement (bearing M.A No.6646 of 2024) which is supported by the affidavits of all concerned and are duly sworn in by them in the office, today, taken on record.

Complainant Asif Ibrahim, who is also husband of Ms. Lubna Asif / a legal heir of deceased Shamim Yasin / victim of the crime, in view of above discussion and joint application filed by them for settlement, does not wish to press connected appeal against acquittal of respondent Mansoor Majeed Ayat. He has also no objection for grant of Criminal Appeal No.492 of 2022 as well as acquittal of appellant Sohail Majeed Ayat. He admits contents of joint application for settlement filed by them today, before this Court. Complainant further undertake that they would hand over vacant and peaceful possession of remaining property in suit to M/s. Farhan Yousuf and Fahad Amin within three (3) months time, in presence of Nazir of this Court, subject to payment of compensation of amount of Rs.17 Million.

Learned Deputy PG Sindh, submits that dispute between the parties was over inheritance and since the convict/appellant as well as other stakeholders; including builders Farhan Yousuf and Fahad Amin (on Court notice) undertake to deposit amount of Rs.17 Million before Nazir of this Court today; hence, victim family/legal heirs of deceased Shamim Yasin have been compensated, therefore, he has no objection for grant of instant appeal and joint application for settlement filed by the parties today, as well as acquittal of appellant Sohail Majeed Ayat. As far as Section 498-A P.P.C is concerned, learned Deputy P.G submits that it was promulgated on 28.12.2011 (PLD 2012 Central Statute 145) and the offence as well as mutation in respect of the property in dispute had occurred/mutated in the year 2007-08; hence, legislature had not provided any provision of clause by which section 498-A P.P.C has got retrospective effect, therefore, it was not applicable and the trial Court has wrongly added it under the charge. He, therefore, submits that conviction and sentences awarded to appellant to the extent of Section 498-A P.P.C, are not maintainable. As far as, remaining sections are concerned, learned Deputy P.G, submits though said sections are not compoundable; however, parties have settled down their differences outside the Court and they do not want to prosecute each other anymore; thus, a joint application for settlement filed by the appellant as well as legal heirs of deceased Shamim Yasin and others, though they are not direct party to these proceedings, but are involved in captioned Civil Suits filed by them which are still pending adjudication before this Court, are necessary party and extend their no objection. Hence, in view of dicta laid down by this Court in cases of Ashique Solangi and another v. The State (PLD 2008 Karachi 420) and Akhtar Hussain v. Station House Officer Sachal and 2 others (2020 PCr.LJ) Note 20), he has no objection for grant of appeal.

As far as, non-compoundablity of the offences is concerned, learned DPG submits that since upon the intervention of the Court for reconciliation, deliberation and compromise between the parties has been successful and the party(ies) have filed a joint application for settlement (vide M.A No.6646 of 2024) thereby they have entered into compromise and settled down their differences; hence, the same application may be termed and treated as an initiative in the terms of provisions contained under Alternative Dispute Resolution Act (II) of 2017, therefore, in order to resolve the dispute through mediation which provides many aspects for deliberation, reconciliation as well as compromise, the offences with which appellant has been charged, may be termed to be compoundable and upon the basis of such settlement between the parties, by allowing listed application, appeal in hand may be allowed. The point raised by learned DPG requires consideration.

Accordingly and in view of dicta laid down by the Honourable Supreme Court of Pakistan in cases of Province of Punjab through Secretary C&W, Lahore and others v. Messrs Haroon Construction Company, Government Contractor and others (2024 SCMR 947), Faisal Zafar and another v. Siraj-Ud-Din and 4 others (2024 CLD 1), Netherlands Financierings Maatschappij Voor Ontickklingsslanden N.V. (F.M.O.) v. Morgah Valley Limited and Secp (PLD 2024 Lahore 315) and AAMIR and 2 others v. The State and another (2011 MLD 1468). listed application (bearing M.A No.6646 of 2024) is hereby allowed on the terms and conditions described and mentioned under listed application. The parties shall follow the terms and conditions mentioned in the listed application as well as the condition that Builder M/s. Farhan Yousuf and Fahad Amin, who are Plaintiffs in Civil Suit No.553 of 2019 shall deposit pay orders amounting to Rs. 17 Million today, before Nazir of this Court and submit such receipt.

2025 Y L R 1522

[Sindh (Hyderabad Bench)]

Before Mehmood A. Khan and Abdul Hamid Bhurgri, JJ

Ghulam Abbas and 2 others---Appellants

Versus

IInd Additional District Judge, Badin and 4 others---Respondents

1st Appeal No. D-42 of 2017, decided on 18th March, 2025.

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

----Ss.4(1), 18, 23, 28-A & 34---Constitution of Pakistan, Arts.23 & 24---Acquisition of land---Compensation---Statutory interest under S.34 of Land Acquisition Act, 1894---The Irrigation department took possession of appellants' (land owners) land without notice or legal acquisition causing damage to the land constraining them to file a Constitutional petition, whereby, the authorities were directed to issue an award---The appellants (land owners) were offered Rs.438,00 per acre which they accepted under protest and subsequently filed a Land Acquisition Reference claiming Rs. 400,000 per acre along with interest and damages---The reference was dismissed by the Trial Court against which present appeal was preferred---The points for determination by the High Court were as to: (i) Whether valuation of the land was assessed in award in accordance with the Land Acquisition Act, 1894; (ii) Whether the appellants were entitled to claim the benefits conferred under S.34 of the Land Acquisition Act, 1894; (iii) Whether the appellants were eligible for the benefits outlined under S.28-A of the Land Acquisition Act, 1894; (iv) Whether the appellants are entitled to compensation for damages---Held: To answer the first point, by virtue of S.23 of the Land Acquisition Act, 1894 (the "Act") the market value of the acquired land was to be assessed as of the date of the publication of the notification under S.4(1) of the Act and it was evident that the land acquisition officer had correctly determined the valuation of the land in accordance with the relevant provisions---To answer the second point the land acquisition officer failed to adhere to the mandatory requirement of law by not awarding interest under S.34 of the Act---The rights of landowners were not only safeguarded under the Act but were also enshrined in Art.23 and 24 of the Constitution which provisions unequivocally guaranteed the rights of citizens---Since the award dated 02.02.2011 passed by the land acquisition officer revealed that possession was taken over by the acquiring agency after issuance of notification under S.4 of the Act dated 18.8.1988 and the final payment was made on 27.04.2011, as per the bank statement filed by the law officer, respondent No. 3 (Land Acquisition officer) was directed to modify the award and include interest from the date of possession as determined in the award till payment of the award (27.04.2011)---To answer the third point regarding grant of benefit of S.28-A of the Act, it was evident that the said provision had been omitted through S.4 of the Land Acquisition (Sindh Amendment) Act 2009 (Act No.XVI of 2010)---To answer the fourth point, upon meticulous examination of the evidence adduced by the appellants (land owners) and their witnesses, it was evident that they had failed to furnish any cogent or substantive material to support their claim---There existed no legal infirmity or procedural irregularity in the findings of the Trial Court in denying the claim of damages---As no case of damages had been successfully demonstrated by the appellants (land owners), the findings of the Trial Court stood fully substantiated and were, therefore, maintained---Respondent No.3/land acquisition officer was directed to amend the award by incorporating interest accrued on the principal amount from date of possession as determined in the award until 27.4.2011 (the date when the amount was disbursed to the appellants-land owners), in accordance with the provisions of S.34 of the Land Acquisition Act 1894---Furthermore, if any sum was erroneously granted to the appellant under S.28-A of the said Act same would be deducted accordingly---Appeal was disposed of, in circumstances.

Sheikh Muhammad Ilyas Ahmed v. Government of Pakistan through Secretary, Ministry of Defence and others PLD 2016 SC 264; Dilawar Hussain v. Province of Sindh PLD 2016 SC 514; B.P. Pakistan Exploration and Production Inc. v. Ashique Hussain and others Civil Appeals Nos. 1653 to 1655 of 2007 and Jinad Shah and others v. General Manager NHA (LM and IS), Islamabad and others and Land Acquisition Collector v. Muhammad Sultan PLD 2014 SC 696 rel.

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

----S.34---Acquisition of land---Compensation---Statutory interest, computation of---Scope and concept---The acquiring agency is under an obligation to compensate the landowner by paying the requisite amount, including the accrued interest---The fundamental principle underpinning the provision of payment is that the party dispossessed of its property is deprived of any profit or usufruct from the date possession is taken---If the collector fails to effect payment prior to taking possession, the affected party is entitled to interest from that date---This principle is analogous to that in a contractual sale and purchase of land, wherein the purchaser is obligated to pay interest on the unpaid purchase amount from the date of possession---When the amount of compensation is not paid or deposited on or before taking possession of the land, the collector shall pay the amount awarded with compound interest at the rate of eight per centum per annum from the time of so taking possession until it shall have been so paid or deposited; provided that any waiver of the above right by the land owner shall be void and he shall be entitled to the said interest notwithstanding agreement to the contrary.

Muhammad Hashim Bajeer for Appellants.

Allah Bachayo Soomro, Addl. A.G., assisted by Muhammad Ismail Bhutto, Additional Advocate General for Respondents.

Date of hearing: 12th February, 2025.

Judgment

Abdul Hamid Bhurgri, J---The appellants, through the present appeal, have impugned the judgment dated 23.11.2017, rendered by the learned II-Additional District Judge, Badin, in Land Acquisition Reference No. 01 of 2011, titled Ghulam Abbas and others v. Land Acquisition Officer and others, whereby the learned Trial Court dismissed the suit of the appellants. Consequently, this appeal has been preferred.

1. The crux of the matter pertains to the acquisition of land measuring 3-12 acres, identified as Survey No. 84, situated in Deh Kak, Taluka Tando Bago, which was appropriated by the Irrigation Department for the excavation of saline water Drain 5-R. The plaintiffs/appellants contend that defendant No. 2/respondent unlawfully took possession of the subject land on 18th August 1988 without issuing any prior notice or intimation. The project encroached upon the agricultural land of the plaintiffs/appellants, resulting in significant damage to their standing crops. Additionally, adjacent land under sugarcane cultivation was adversely affected, thereby exacerbating their financial losses. Furthermore, approximately four acres of their land became uncultivable, as it was buried under layers of mud due to the excavation process. For over two decades, the plaintiffs/appellants were deprived of the opportunity to cultivate their land, particularly five acres situated adjacent to the Sim Nala on the northern side. The construction of Sim Nala obstructed the natural flow of water, preventing its passage to the plaintiffs' fields and rendering cultivation practically impossible. Despite the fact that the Sim Nala was constructed without lawful acquisition under the Land Acquisition Act, repeated applications submitted by the plaintiffs/ appellants to the Deputy Commissioner (DC) Badin (dated 4.4.1991) and subsequent appeals to the Provincial Ombudsman remained unaddressed. Although multiple notices were issued by the Ombudsman, the relevant authorities failed to address the appellants' grievances.

2. Subsequently, the plaintiffs/ appellants filed Constitutional Petition No. D-441 of 2010 before the Honourable High Court, which, via order dated 19.10.2010, directed the defendants/respondents to issue an Award. In compliance, the defendants/ respondents passed the impugned Award on 02.2.2011 and issued a cheque of Rs.438,500 as partial payment to the plaintiffs/appellants. However, the appellants accepted the amount under protest and proceeded to institute the instant suit, seeking compensation at the rate of Rs. 4,00,000 per acre for five acres, along with additional benefits under Sections 28-A and 23 of the Land Acquisition Act, including interest at the rate of 6% per annum.

3. The defendant No. 2/respondent No.1, in response, filed written objections, categorically denying the appellants' claims. He contended that at the time of land acquisition, the prevailing market price ranged between Rs.3,000 and Rs.5,000 per acre, and a 15% compensation increment had already been provided. Therefore, he prayed for the outright dismissal of the plaintiffs' application.

4. Upon examining the pleadings, the following issues were framed for determination by the trial court:

I S S U E S

1. Whether the application under Section 18 of the Land Acquisition Act, 1894, seeking additional compensation, is maintainable, given that the land price was assessed at the time of the Section 4 notification issued in August 1989?

2. Whether the plaintiff is entitled to compensation as per the land rate applicable in 1988, when possession was taken, or as per the rate prevailing in 2011, when payment was made by the defendants?

3.Whether the plaintiff suffered substantial financial losses due to the destruction of standing sugarcane crops as a result of the Sim Nala's construction?

4. Whether the plaintiffs' land was rendered unfit for cultivation due to the absence of any alternative water supply for irrigation?

5. Whether the plaintiff is entitled to the relief claimed?

1. What should be the appropriate decree?

2. To substantiate their claim, the plaintiffs/appellants produced the following evidence:

• Ghulam Abbas (PW-1), whose deposition was recorded at Exhibit 71, he provided documentary evidence, including Exh. 71/A (Reference of Proceedings and orders) and Exh. 71-B (Khata of Land with Video Entry No. 13).

• PW-2 Ali Ahmed (Exh. 75), PW-3 Muhammad Ramzan (Exh. 76), and PW-4 Mohsin Ali Chandio, Mukhtiarkar Tando Bago (Exh. 77). Thereafter the learned counsel for the plaintiffs/appellants closed their side of evidence vide statement at Exh.78.

1. The learned trial Court after hearing the parties and adducing evidence had dismissed the reference hence, this appeal.

2. The learned counsel for the appellants contended that the award rendered by the Land Acquisition Officer contravenes the law, as the appellants have not been granted the benefits enshrined under Sections 28-A and 34 of the Land Acquisition Act 1894. He further asserted that the Land Acquisition Officer (Respondent No. 3) and the learned trial judge have erroneously assessed the valuation of the land, calculating it from the date of notification issuance rather than from the date of the award. Furthermore, the counsel submitted that, despite the appellants having adduced cogent evidence demonstrating the damage sustained, both the trial judge and the Land Acquisition Officer failed to duly appreciate the evidence, thereby dismissing the appellants' claim. Consequently, he prayed for the award to be set aside, thereby enabling the present appeal.

3. Conversely, the learned Additional Advocate General (AAG) argued that the trial court's order is well-reasoned and does not warrant any interference. He contended that appellants are not entitled for benefit of Section 28 A of the Land Acquisition as the same has been omitted through Section 4 of the Land Acquisition (Sindh Amendment) Act 2009 (Act No. XVI of 2010). The learned AAG relied upon PLD 2016 SC page 514. In the end, he prayed for the dismissal of the appeal.

4. We have heard the learned counsel for the appellants as well as the learned AAG. In order to adjudicate upon the appeal at hand, the following key points have been identified for the determination:

5. Whether valuation of the land was assessed in award in accordance with the Land Acquisition Act?

2. Whether the appellants were entitled to claim the benefits conferred under section 34 of the Land Acquisition Act, 1894?

3. Whether the appellants were eligible for the benefits outlined under section 28-A of the Land Acquisition Act?

4. Whether the appellants are entitled to compensation for damages?

1. What should the order be?

POINT NO.1.

1. The primary contention of the counsel for the appellant is that the valuation of the acquired land must be determined based on the date when the award was passed. However, the Land Acquisition Officer calculated the price on the date when the notification was issued, which the appellants argued is incorrect.

2. Under Section 23 of the Land Acquisition Act, the market value of the acquired land is to be assessed as of the date of the publication of the notification under Section 4, Sub-section (1). The relevant portion of Section 23 of the Land Acquisition Act is as follows:-

"23. Matters to be considered in determining compensation.-(1) In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall take into consideration---

"firstly, the market-value of the land on the date of the publication of the [notification under Section 4], subsection (1).

secondly, the damage sustained by the person interested, by reason of the taking of any standing crops or trees which may be on the land at the time of the Collector's taking possession thereof;

thirdly, the damage (if any) sustained by the person interested, at the time of the Collector's taking possession of the land, by reason of severing such land from his other land;

fourthly, the damage (if any) sustained by the person interested at the time of the Collector's taking possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable, if any other manner, or his earnings;

fifthly, if, in consequence of the acquisition of the land by the Collector, the person interested is compelled to change his residence or place of business, the reasonable expenses (if any) incidental to such change; and

sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time of the publication of the declaration under Section 6 and the time of the Collector's taking possession of the land".

1. Based on the foregoing, it is evident that the Land Acquisition Officer has correctly determined the valuation of the land in accordance with the provision of the Land Acquisition Act. Accordingly, this point is answered in the affirmative.

POINT NO.2.

1. The Land Acquisition Officer failed to adhere to the mandatory requirement of the law by not awarding interest under Section 34 of the Land Acquisition Act, 1894. The relevant portion of the compensation of land in Award is reproduced hereunder:-

"Compensation of land"

Market value of the land in 1988 has been obtained through the local inquiry, which was about Rs.10,000/- in the concerned Dehs. Also, the amount of Rs.10,000/- has been referred to as compensation amount against 01-00 acres land. Thus the basic amount of compensation per Acre in the said Dehs has been decided at Rs.10,000/-. Applicants, however, did not show dissent over the decided basic amount of compensation to be awarded to them in 1989. Furthermore, as per subsection (2) of Section 23, I am required to 'award a sum of 15% on such market value, in consideration of the compulsory nature of the acquisition, as it has been made for public purpose. In addition to this, Section 28-A, administering additional compensation, attracts in this case by which 'an additional amount of 15% per annum of the compensation so fixed shall be paid from the date of the notification under section 4 to the date of payment of the compensation".

This constitutes a fundamental contravention of legal provisions, as the acquiring agency/respondents Nos. 2 and 4 admittedly did not deposit the requisite amount at the time of taking possession of the subject land. The trial court also failed to rectify this legal irregularity committed by Respondent No. 3. The relevant portion of Section 34 of the Land Acquisition Act is reproduced below:

"34. Payment of interest-When the amount of such compensation is not paid or deposited on or before taking possession of the land, the Collector shall pay the amount awarded with compound interest at the rate of eight per centum per annum from the time of so taking possession until it shall have been so paid or deposited."

Provided that any waiver of the above right by the land owner shall be void and he shall be entitled to the said interest notwithstanding agreement to the contrary".

1. The rights of a landowners are not only safeguarded under the Land Acquisition Act but are also enshrined in Articles 23 and 24 of the Constitution of the Islamic Republic of Pakistan. These constitutional provisions unequivocally guarantee the rights of citizens, as they constitute fundamental rights inherent to every individual. Articles 23 and 24 of the Constitution are reproduced as follows:

"23. Provision as to property. Every citizen shall have the right to acquire, hold and dispose of property in any part of Pakistan, subject to the Constitution and any reasonable restrictions imposed by law in the public interest.

24. Protection of property rights, (1) No person shall be deprived of his property save in accordance with law.

(2) No property shall be compulsorily acquired or taken possession of save for a public purpose, and save by the authority of law which provides for compensation therefor and either fixes the amount of compensation or specifies the principles on and the manner in which compensation is to be determined and given.

(3) Nothing in this Article shall affect the validity of-

(a) any law permitting the compulsory acquisition or taking possession of any property for preventing danger to life, property or public health; or

(b) any law permitting the taking over of any property which has been acquired by, or come into the possession of, any person by any unfair means, or in any manner, contrary to law; or

(c) any law relating to the acquisition, administration or disposal of any property which is or is deemed to be enemy property or evacuee property under any law (not being property which has ceased to be evacuee property under any law); or

(d) any law providing for the taking over of the management of any property by the State for a limited period, either in the public interest or in order to secure the property management of the property, or for the benefit of its owner; or

(e) any law providing for the acquisition of any class of property for the purpose of-

(i) providing education and medical aid to all or any specified class of citizens; or

(ii) providing housing and public facilities and services such as roads, water supply, sewerage, gas and electric power to all or any specified class of citizens; or

(iii) providing maintenance to those who, on account of unemployment, sickness, infirmity or old age, are unable to maintain themselves; or

(f) any existing law or any law made in pursuance of Article 253.

(4) The adequacy or otherwise of any compensation provided for by any such law as is referred to in this Article, or determined in pursuance thereof, shall not be called in question in any court".

1. The acquiring agency was under an obligation to compensate the landowner by paying the requisite amount, including the accrued interest. However, the Land Acquisition Officer failed to fulfill this obligation, an oversight that was further compounded by the trial court, which also neglected to acknowledge this crucial aspect of the case. Since the respondents neglected to deposit the amount as required by law, they are consequently liable to bear the penal implications of Section 34 of the Land Acquisition Act.

2. The fundamental principle underpinning the provision of payment is that the party dispossessed of its property is deprived of any profit or usufruct from the date possession is taken. If the collector fails to effect payment prior to taking possession, the affected party is entitled to interest from that date. This principle is analogous to that in a contractual sale and purchase of land, wherein the purchaser is obligated to pay interest on the unpaid purchase amount from the date of possession. Reliance in this regard is placed on the judgment reported in 2023 page 493,(sic) which for the sake of convenience is reproduced hereunder:

"10. Now moving to the next question, the relevant starting date for the payment of compound interest on compensation amount, in terms of section 34 of Land Acquisition Act, is the date of taking possession of the acquired land till the date of payment by the Collector where normal stator procedure has been observed. In this regard, reference may be made to the case of "Sheikh Muhammad Ilyas Ahmed and others v. Pakistan through Sectary Ministry of Defence, Islamabad and others" (PLD 2016 SC 64). However, in "Syeda Nasreen Zohra v. Government of the Punjab" (2022 SCMR 890) it was held, "We find that the compound interest would continue to accrue till such time that the entire compensation is paid in its entirely. Once the original amount has been deposited, the matter goes out of the penal consequences of section 34 of the Act".

A similar view has been adopted by the Honourable Supreme Court in the case of Sheikh Muhammad Ilyas Ahmed v. Government of Pakistan through Secretary, Ministry of Defence and others, reported in PLD 2016 SC 264.

1. Since the award dated 2.2.2011 passed by the Land Acquisition officer of the land revealed that possession was taken over by the acquiring agency after issuance of notification under section 4 dated 18.8.1988 and the final payment was made on 27.04.2011, as per the bank statement filed by the learned AAG. The respondent No. 3 (Land Acquisition officer) is hereby directed to modify the award and include interest from the date of possession as determined in the award till payment of the award (27.4.2011). This issue is answered accordingly.

POINT NO.3

1. As far as the contention of appellants' counsel regarding grant of benefit of Section 28-A of land acquisition act is concerned, it is evident that the said provision has been omitted through Section 4 of the Land Acquisition (Sindh Amendment) Act 2009 (Act No.XVI of 2010). The statute explicitly states:

"In the said Act, Section 28A shall be omitted and shall be deemed to have been so omitted as if it had never been enacted".

1. The rationale behind this legislative amendment was further clarified in the case of Dilawar Hussain v. Province of Sindh, as reported in PLD 2016 SC 514, wherein the Honourable Supreme Court has held as under:-

"5... In the present circumstances, the Federal Shariat Court found the provisions of the Section 28-A to be repugnant to the Injunctions of Islam. The preamble of the repealing Act states that the Federal Shariat Court has directed that certain amendments be made to the Act in its application to the Province of Sindh. The plain words of section 4 of the repealing Act indicate the intention of the legislature that this Section 28-A is non est and therefore as per the ratio of the Dr. Mubashir Hassan case (supra) the appellants cannot be granted the benefit of Section 28-A as claimed in the instant appeal. It is settled law that appeal is a continuation of the original lis and therefore there is no past and closed transaction which may have afforded them protection in the event of the Section 28-A being declared to have "never been enacted".

1. Reliance is also placed on Civil Appeals Nos. 1653 to 1655 of 2007 (decided in 2024) (B.P. Pakistan Exploration and Production Inc. v. Ashique Hussain and others), wherein the Honourable Supreme Court reaffirmed its stance on the applicability of Section 28-A of the Land Acquisition Act.

2. In the light of the established legal position, it is unequivocally clear that the appellants cannot claim any entitlement under Section 28A of the Land Acquisition Act 1894. Despite their plea for such benefits in the present appeal, the perusal of the Award demonstrates that the Land Acquisition Officer erroneously granted them such relief. Consequently, if any sum has been awarded to the appellants under Section 28A, the respondent Land Acquisition officer is hereby directed to deduct the said amount from the total award.

Accordingly, this point is determined in the negative.

POINT NO.4

2025 Y L R 1584

[Sindh]

Before Muhammad Iqbal Kalhoro, J

Muhammad Juman and 3 others---Appellants

Versus

The State---Respondent

Criminal Appeal No. 413 of 2024, decided on 13th December, 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---Presence of the eyewitnesses at the time and place of incident not doubted---Accused were charged for committing murder of two brothers of complainant by inflicting fatal injuries---In this case, prosecution had examined three eyewitnesses, complainant and two other eyewitnesses---Said witnesses were the residents of same area/village and living nearby the cattle pen, the place of incident, as such their presence there was natural and could not be doubted---As per their evidence, incident took place on 23.03.2001---The motive of the offence was playing of tape recorder by the appellants at high pitch, which was objected to by deceased; the appellants got angry and inflicted on him fatal injuries; and when his brother came to rescue him, he was also assaulted by them---Incident took place in broad daylight and the appellants were identified by the witnesses, by face, as they had been working in the same area---In their lengthy cross-examination, not a single contradiction worth mentioning had come on record to give its benefit to the accused---All the witnesses were unanimous over the fact that appellants were identified by them as they were already known to them---Appeal against conviction was dismissed, in circumstances.

(b) Criminal trial---

----Contradictions in the statements of witnesses---Scope---Only material contradiction, which goes to the root of the case, has to be taken into account and its benefit is dished out to the accused.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account supported by medical evidence---Accused were charged for committing murder of two brothers of complainant by inflicting fatal injuries---Ocular account of the incident had been furnished by three witnesses---Defence could not point out to any material contradiction in evidence of those three eye-witnesses---All three witnesses had supported each other that incident took place due to playing of tape recorder at high pitch by the appellants which was objected by deceased and when he tried to stop the appellants, they in response attacked him as well as other deceased, who came to rescue him---Apart from revealing the main story, as it played out before their eyes, all the witnesses had confirmed that the injured were taken to Police Station first in a Datsun and after getting a letter for treatment from there, they were admitted in hospital for treatment---However, next day, one brother of complainant died in the Hospital, whereas injured who was meanwhile referred to other Hospital for better treatment died there on 28.03.2001---Said witnesses who were also mashirs had confirmed that on 26.03.2001 appellants were arrested by the police under a relevant memo. signed by them---Not only, on the main features of the case, said witnesses had espoused each other but on the allying facts also they had supported each other---Evidence of said witnesses was further strengthened by medical evidence---Medical Officer in his evidence had confirmed that on 23.03.2001, injured were referred to him for treatment---Injuries described by the said Medical Officer proved fatal and subsequently the injured died in the hospital---In order to prove unnatural death of other deceased in other hospital, prosecution had examined Medical Officer, who had confirmed that on 23.03.2001 in the night time injured was transferred to hospital for treatment and remained under his treatment---Although injured was talking but due to his injuries he was restless and irritable---Later on, he developed sepses and A.R.D.S. and remained on ventilator and expired on 28.03.2001---From evidence of all the Medical Officers, it had been established that the deceased died out of injuries inflicted on them on the day of incident by the appellants---Nothing in that regard had been pointed out in defence to show that appellants died out of some other cause than articulated by the prosecution in the case---No contradiction was found in medical and oral account, nor any could be read in the disclosure of the Medical Officers---Appeal against conviction was dismissed, in circumstances.

PLD 1969 Lah. 257; 1995 SCMR 1350; 1979 PCr.LJ 493; PLD 1994 Kar. 122; PLD 1981 SC 142; 1973 SCMR 263; 1973 SCMR 12; 1973 PCr.LJ 649; 1991 SCMR 331; 1985 SCMR 160; 1976 PCr.LJ 52; 1986 MLD 2831; 2005 PCr.LJ 1232; 2015 SCMR 840; 2017 SCMR 344; 2008 SCMR 1221; 2009 SCMR 916; 1996 PCr.LJ 510; 2019 MLD 1107; 2009 SCMR 230; 1999 SCMR 1220; 2009 SCMR 230; 1992 SCMR 1134; 1995 SCMR 1377; 1995 SCMR 1345 and 1999 PCr.LJ 2032 ref.

(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 on the pointation of accused---Reliance---Accused were charged for committing murder of two brothers of complainant by inflicting fatal injuries---Investigating Officer had confirmed that during interrogation, accused volunteered to produce crime weapons and he along with witnesses and appellants left Police Station and came at the pointed place where appellants stopped the police and led them to a place where from two hatchets and one iron rod were recovered from inside the bushes---Said articles were seized under the relevant memo---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Identification of the accused persons not doubted---Accused were charged for committing murder of two brothers of complainant by inflicting fatal injuries---Entire prosecution case showed that appellants were already known to the witnesses, altleast by face, and on various occasions due to their playing tape recorder at high pitch, complaints were made by the residents, including the complainant against them with their employer "SM", but he never took action against them---Resultantly, on the same controversy, on the day of incident before the eyes of witnesses, they attacked and murdered two persons---Investigating Officer in his evidence had confirmed that he had arrested appellants on pointation of complainant, meaning thereby they were known to the complainant, and it was he who had identified and informed the police about them, and they at his instance had been arrested---Thus, there was no chance of misidentification of the accused, not the least when the incident took place in a broad daylight in the area where both parties had been living---Other Investigating Officer had also confirmed in his evidence that he had arrested one of the appellants on disclosure and pointation of complainant---Such evidence read with evidence of complainant and two eye-witnesses left no room for making a guess that the appellants had been misidentified or they were not the actual culprits but had been substituted by the complainant party for real culprits---Besides, all the eye-witnesses had identified the appellants in the Court to be the same culprits---Appeal against conviction was dismissed, in circumstances.

Rafaqat Ali and others v. The State 2016 SCMR 1766 rel.

Ms. Baseerat Shafi for Appellants.

Muhamamd Ali Noonari, DPG for the State.

Date of hearing: 4th December, 2024.

Judgment

Muhammad Iqbal Kalhoro, J.---Appellants have been convicted and sentenced under section 302(b) P.P.C to suffer R.I. for life i.e. 25 years vide judgment dated 27.05.2024 rendered by learned I-Additional Sessions Judge/MCTC Malir, Karachi in Sessions Case No.93/2001 bearing Crime No.28/2001 under sections 302, 324, 34 P.P.C of P.S. Sukhan.

1. Brief facts of the case are that on 23.03.2001, one Haji Noor Muhammad Baloch lodged a report to police, in which he stated that he was working as a contractor and resided at Bhains Colony, Karachi. According to him, near their village there was a cattle pen of buffaloes belonging to one Shoukat where 4/5 of his employees were working who used to play tape recorder at high pitch. For this, the complainant and other residents of the village complained to above said Shaukat and requested him to admonish his employees not to play the tape recorder. However, on 23.03.2001 when the complainant's younger brother Shah Muhammad was returning from the mosque after offering the prayer he found the above said persons again playing the tape recorder at high pitch. He thus restrained them, whereupon they came out from the cattle pen armed with hatchet, iron bars and lathies and stated that they had been told by Shaukat to kill whosoever objected to their playing of the tape recorder. They then caused injuries to Shah Muhammad and when complainant's another brother Muhammad Sharif went to rescue Shah Muhammad, he too was caused injuries, as a result both of them went unconscious. They were taken to Police Station and after obtaining a letter from there for treatment were admitted in Jinnah Postgraduate Medical Centre (JPMC), Karachi. The complainant further mentions that besides him, the incident was witnessed by Ghulam Mustafa Qadri, Ibrahim and other residents of the village. Thereafter, complainant went to police station where SI Ghulam Mustafa Zardari lodged FIR of this incident against the accused.

2. The complainant initially lodged FIR, amongst others, under section 324 P.P.C, however, on the next day viz. 24.03.2001 the inured Shah Muhammad succumbed to his injuries and died at the hospital, the formalities of which, as required under section 174 Cr.P.C, were held and section 302 P.P.C was added in the FIR. In the investigation, on pointation of complainant and eye-witnesses, I.O arrested accused Muhammad Juman, Muhammad Chakar and Hidayatullah from Bundi Stop Gaddap under a relevant memo. on 26.03.2021. On 28.03.2001 the other injured namely Muhammad Sharif also succumbed to his injuries and died at Agha Khan Hospital, Karachi. His dead body was brought at Jinnah Hospital for proceedings under section 174 Cr.P.C. On 01.04.2001, I.O. of the case arrested fourth accused namely Muhammad Iqbal in presence of complainant and other witnesses from Bhains Colony. On the same day, the accused, who are appellants here, during interrogation volunteered to produce crime weapons viz. two hatchets and an iron rod, which they had concealed in a nearby jungle. I.O. in their company went to the place and recovered crime weapons on the their pointation under relevant memo. Since no role was assigned to accused Shoukat Mohajir, who otherwise was named in the FIR, he was let off by the police during investigation.

3. After submission of Challan, a formal charge against appellants was framed to which they pled not guilty and claimed trial. As a result, prosecution examined 11 witnesses, who have produced all the relevant documents including FIR, memo. of arrest and recovery, post mortem report etc. Thereafter, statements of appellants were recorded under section 342 Cr.P.C in which they have denied the allegations and pleaded their innocence. All the accused have examined themselves on oath in terms of section 340(2) Cr.P.C. The accused then, vide judgment dated 26.07.2008 were convicted and sentenced to undergo life imprisonment with fine of Rs.100,000/- each and , in case of default, to suffer SI for one year more with benefit of section 382-B Cr.P.C. The accused filed Cr. Appeal No.187/2008 before this court and this court vide judgment dated 08.04.2008 set aside the conviction and sentence of the accused /appellants and remanded the case with directions to the trial court to rewrite the judgment in accordance with law. After remand of the case, the accused have again been convicted and sentenced vide impugned judgment dated 27.05.2024. Hence this appeal.

4. Learned defence counsel has argued that names of appellants are not mentioned in FIR; place of incident is disputed in that some witnesses have said that it was outside the cattle pen of Shoukat Mohajir and some have revealed that it was inside cattle pen, and yet some have stated it was in the hut of some widow; the witnesses have contradicted each other and their presence at the spot is also doubtful as one of the witnesses has stated that they had come at the place of incident together and others have not supported him on this score; that no specific role has been assigned to any of the appellants; the appellants are not employees of Shoukat Mohajir but they are labourers who were working in the area on daily wages and were arrested in this case; that there is no independent person as a witness in this case except members of the one and same family; that recovery of alleged crime weapons is doubtful and the same has been foisted upon them, and as a matter of fact nothing was recovered from them; all the accused were arrested from their homes and after arrest, no identification parade was held to verify whether they are the same accused or not. She has relied upon the case law reported in PLD 1969 Lah. 257, 1995 SCMR 1350, 1979 PCr.LJ 493, PLD 1994 Kar. 122, PLD 1981 SC 142, 1973 SCMR 263, 1973 SCMR 12, 1973 P.Cr.LJ 649, 1991 SCMR 331, 1985 SCMR 160, 1976 PCr.LJ 52, 1986 MLD 2831, 2005 PCr.LJ 1232, 2015 SCMR 840, 2017 SCMR 344, 2008 SCMR 1221, 2009 SCMR 916, 1996 PCr.LJ 510, 2019 MLD 1107, 2008 SCMR 1221, 1995 SCMR 1345, 2009 SCMR 230, 1999 SCMR 1220, 2009 SCMR 230, 1992 SCMR 1134, 1995 SCMR 1377, 1995 SCMR 1345 and 1999 PCr.LJ Lahore page 2032 to support her arguments.

5. On the other hand learned DPG has supported the impugned judgment.

6. I have considered submissions of the parties and perused material available on record. In this case, prosecution has examined three eye-witnesses, complainant, Noor Muhammad, Muhammad Ibrahim and Ghulam Mustafa. They are the residents of same area/village and living nearby the cattle pen of Shoukat Mohajir, the place of incident, as such their presence there is natural and cannot be doubted. As per their evidence, this incident took place on 23.03.2001, the motive of the offence is playing of tape recorder by the appellants at high pitch, which was objected by deceased Shah Muhammad, when he was returning home after offering prayer. But the appellants got angry and inflicted on him fatal injuries, when his brother Muhammad Shafiq came to rescue him, he was also assaulted by them. The incident took place in a broad day light and the appellants being employees of Shoukat Mohajir were identified by the witnesses, by face, as they have been working in the same area. According to their evidence, deceased Shah Muhammad on hearing playing of Tape Recorder on high volume restrained the appellants but they did not stop and on the contrary attacked upon him with iron rod and hatchets causing him serious injuries. When his brother Muhammad Sharif, being attracted on his cries, reached the place of incident to save him, they also attacked him with the same weapons causing him serious injuries. This incident was witnessed by complainant, P.W. Ghulam Qadir, Muhammad Ibrahim and Ghulam Mustafa, out of whom three witnesses as named above have come forward and given evidence against the appellants. In their lengthy cross-examination, not a single contradiction worth mentioning has come on record to give its benefit to the accused. All the witnesses are unanimous over the fact that appellants were identified by them as they were already known to them. In fact, the complainant in cross-examination has revealed that he had given names of accused in FIR, who even otherwise living and working in the same area, which is a small village, cannot be presumed to be strangers to him.

7. Learned defence counsel during her arguments could not point out to any material contradiction in evidence of these three eye-witnesses except that one witness namely Muhammad Ibrhim in cross-examination has revealed that he arrived at the spot along with P.W. Haji Noor Muhammad, Ghulam Mustafa and Ghulam Qadir; whereas P.W. Ghulam Mustafa in cross-examination, to a suggestion, has admitted that P.W Noor Muhammad was already present at spot when they reached there. This discrepancy is not material in nature, nor on the basis of such minor variation, prosecution evidence, which otherwise inspires confidence, can be discarded. It is settled that only material contradiction, which goes to the root of the case, has to be taken into account and its benefit dished out to the accused. Except, such a small discrepancy, learned defence counsel has failed to point out to any slightest variation in the evidence of these three eye-witnesses, insofar as the main features of the incident and the manner, the incident unfolded before them is concerned. All three witnesses have supported each other that incident took place due to playing of tape recorder at high pitch by the appellants which was objected by deceased Shah Muhammad and when he tried to stop the appellants, they in response attacked him as well as deceased Muhammad Sharif, who came to rescue him. Apart from revealing the main story, as it played out before their eyes, all the witnesses have confirmed that the injured were taken to Police Station first in a Datsun and after getting a letter for treatment from there, they were admitted in JPMC for treatment. However, next day, Shah Muhammad died in the Hospital, whereas injured Muhammad Sharif who was meanwhile referred to Agha Khan Hospital for better treatment died there on 28.03.2001. These witnesses who are also mashirs have confirmed that on 26.03.2001 appellants namely Muhammad Juman, Hidayatullah and Muhammad Chakar were arrested by the police from Bundi Stop Gadap under a relevant memo. signed by them. They have also verified that fourth appellant namely Muhammad Iqbal was arrested on 01.04.2001 in their presence and on the same day, the accused led police party to an area in a jungle behind cattle pen from where on their pointation crime weapons as mentioned above were recovered by the police. Not only, on the main features of the case, these witnesses have espoused each other but on the allying facts also they have supported each other. Their evidence is further strengthened by medical evidence. P.W. Dr. Abdul Razak in his evidence has confirmed that on 23.03.2001 when he was posted as MLO at JPMC, injured Shah Muhammad and Muhammad Sharif were referred to him for treatment. On the person of injured Shah Muhammad, he found following injuries:-

1. Lacerated wound B.c.m x 1.c.m.Mid of perital region sclap deep bone exposed.

2. Lacerated wound 4.c.m x 1.c.m mid of peritial region near to injury No. 1.bone not exposed.

Whereas, on the person of injured Muhammad Sharif, he found following injuries:-

1. LACERATED WOUND 3.c.m x 0.5.c.m and 1.5.c.m x 0.2.c.m mid prito occipital regin wound not exposed.

The injuries described by the aforesaid medical officer proved fatal and subsequently the injured died in the hospitals. Dr. Muhammad Ismail P.W.5 has been examined by the prosecution at Ex.8. He in his evidence has confirmed that on 24.03.2001 when he was posted as MLO at JPMC, dead body of Shah Muhammad was brought by SI Ghulam Mustafa of P.S. Sukhan for postmortem which he conducted as per procedure. According to his opinion, the deceased died due to cardio respiratory failure due to head injuries resulted by a hard and blunt object. He has produced postmortem report in his evidence to support his evidence.

1. In order to prove unnatural death of deceased Muhammad Sharif in Agha Khan Hospital, prosecution has examined P.W.9 Ayaz Ali as well as P.W.10 Dr. Atta Ali, who was posted in Neuro Surgery Ward in Agha Khan hospital. He has confirmed that on 23.03.2001 in the night time injured Muhammad Sharif was transferred to Agha Khan Hospital for treatment. He remained under his treatment. Although he was talking but due to his injuries he was restless and irritable. Later on, he developed sepses and A.R.D.S. He remained on ventilator and expired on 28.03.2001. According to his evidence, the deceased remained under his treatment for five days, and he had issued his death certificate, which he has produced in his evidence. From evidence of all the doctors, it has been established that the deceased died out of injuries inflicted on them on the day of incident by the appellants. Nothing in this regard has been pointed out in defence to show that appellants died out of some other cause than articulated by the prosecution in the case. The evidence of these doctors is in synchronization with the evidence of eye-witnesses stating that injured were hit by the appellants by iron rod and hatchets.

2. Learned defence counsel in her arguments stated that doctors have opined to a suggestion in cross-examination that hard and blunt weapon includes stone and a club (Danda), and therefore, in view of such revelation, prosecution case insofar as causing of injuries by iron rod and hatchets is concerned has become doubtful. I am afraid, her opinion is not spot on. For the reasons, the doctor's such opinion does not exclude iron rods or hatchets from the definition of hard and blunt substance, or that any injury caused by them would not be defined to have been caused by hard and blunt substance. It only proves that any injury caused by stone and clubs would also be defined to have been caused by hard and blunt substance. When the doctors say that the victims were hit by hard and blunt substance, it would actually support evidence of eye-witnesses stating that the victims were hit by the appellants with iron rods and hatchets. There is no contradiction in medical and oral account, nor any can be read in the disclosure of the doctors.

3. Apart from above evidence, the prosecution has examined Inspector Ghulam Murtaza who was posted as SIP on the day of incident when at about 8:30 pm. Complainant Haji Noor Muhammad had appeared at P.S. and revealed details of the incident. On his disclosure, this witness had recorded FIR and given a letter to him for treatment of the injured. Next day, he received information that Shah Muhammad had died in the hospital. He has confirmed that on such information he went to JPMC, examined dead body in presence of witnesses, prepared inquest report under section 174 Cr.P.C, prepared memo. of dead body in presence of same witnesses. Then along with witnesses he went to the place of incident which he inspected and prepared relevant memo. duly signed by the witnesses. According to him, he had handed over police papers to SHO Zahid Panhwar on 24.03.2001 for further investigation. According to him, he had received telephonic call from SHO Muhammad Yakoob, the other IO, on 28.03.2001 that Muhammad Sharif had died at Agha Khan Hospital due to his injuries, hence he went there and conducted proceedings under section 174 Cr.P.C in presence of witnesses.

4. Next witness examined by the prosecution is Sub-Inspector Zahid who had conducted some of the investigation in the case. His evidence shows that he had arrested appellants Muhammad Juman, Hidayatullah and Chakar on pointation and disclosure of complainant Noor Muhammad from Bundi Stop Gadap. After him, investigation was transferred to SI Muhammad Yakoob, who has been examined as P.W.8 at Ex.11. According to his evidence, he had recorded statements of witnesses on 29.03.2001 and on 01.04.2001 complainant Noor Muhammad had informed him on phone that appellant Muhammad Iqbal was present at Road No.9 at Bhains Colony. Acting on such information, he along with witnesses went there and arrested the said appellant under a memo. duly signed by the witnesses. He has confirmed that during interrogation, accused volunteered to produce crime weapons and he along with witnesses and appellants left P.S. and came at Peerano Goth in police mobile at the pointed place where appellants stopped the police and led them to a place where from two hatchets and one iron rod were recovered from inside the bushes. The same were seized under the relevant memo.

5. Learned counsel in her arguments has raised contention that names of applicants are not mentioned, hence their identity is doubtful, however, entire prosecution case shows that appellants were already known to the witnesses, altleast by face, and on various occasions due to their playing tape recorder at high pitch, complaints were made by the residents, including the complainant against them with Shoukat Mohajir, whose employees they were, but he never took action against them. Resultantly, on the same controversy, on the day of incident before the eyes of witnesses, they attacked and murdered two persons. I.O. Zahid Hussain in his evidence has confirmed that he had arrested appellants on pointation of complainant Noor Muhammad, meaning thereby they were known to the complainant, and it was he who had identified and informed the police about them, and they at his instance, had been arrested. There is no chance of misidentification of the accused, not the least when the incident took place in a broad day light in the area where both parties had been living.

6. The other I.O. SI Muhammad Yakob has also confirmed in his evidence that he had arrested appellant Muhammad Iqbal on disclosure and pointation of complainant. Such evidence read with evidence of complainant and two eye-witnesses leave no room for making a guess that the appellants have been misidentified or they are not the actual culprits but have been substituted by the complainant party for real culprits. Besides, all the eye-witnesses have identified the appellants in the Court to be the same culprits. The Supreme Court in the case of Rafaqat Ali and others v. The State (2016 SCMR 1766) has held that identification of accused in the Court by the witnesses is equally valid, if their evidence inspires confidence, is consistent on all material particulars and there is nothing to suggest that the witnesses are deposing falsely. Here in the present case, all such prerequisites are fairly available in the evidence of the witnesses, hence, there is no room to doubt the identity of the accused.

2025 Y L R 1601

[Sindh (Larkana Bench)]

Before Zulfiqar Ali Sangi, J

Bashir alias Bashoo and another---Appellants

Versus

The state---Respondent

Criminal Appeal No. S-55 of 2021, decided on 27th March, 2023.

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

----Ss. 397, 457, 337-A(i), 148 & 149---Robbery, hurt, shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Delay of 21 days in lodging FIR---Consequential---Appellants were charged for committing robbery in the house of complainant, causing hurt to him and taking away gold ornaments, cash and other valuables---Incident took place on 28.04.2020 in the night and the FIR was lodged on 19.05.2020 with the delay of 21 days and the same had not been plausibly explained by the complainant---Complainant approached the police on the same day, obtained a letter and then appeared at hospital where he was examined by the Medical Officer but he had not narrated the facts in respect of the offence to the police nor he informed the police about the names of the accused persons, which created very serious doubt in the case of prosecution---Circumstances established that the prosecution failed to prove the case beyond reasonable doubt, resulting in the acquittal of accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 397, 457, 337-A(i), 148 & 149---Robbery, hurt, shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Accused not identified by the witnesses--- Consequential---Appellants were charged for committing robbery in the house of complainant, causing hurt to him and taking away gold ornaments, cash and other valuables---In the present case, the witness admitted during the cross-examination that after the incident several villagers were gathered there to whom they informed about the incident but not disclosed the names of accused persons to them which itself reflected that complainant party had not identified the accused persons---Said witness also admitted that they took information about the caste and parentages of the accused persons after committing of such dacoity by the accused persons---Said fact indicated that the matter remained under consultation creating serious doubt regarding the identification of accused persons---Circumstances established that the prosecution failed to prove the case beyond reasonable doubt, resulting in the acquittal of accused---Appeal against conviction was allowed, in circumstances.

Pervaiz Khan and another v. The State 2022 SCMR 393 rel.

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

----Ss. 397, 457, 337-A(i), 148 & 149---Robbery, hurt, shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Night time occurrence---Source of light not proved---Accused were not identified by the witnesses---Scope---Appellants were charged for committing robbery in the house of complainant, causing hurt to him and taking away gold ornaments, cash and other valuables---Identification of the accused persons was doubtful---Admittedly, the incident took place at 2.45 am of the night and the complainant party after hearing the noise witnessed the incident in the bulb light and the bulb was not taken into possession nor the sketch/mashirnama of place of wardat to reflect about the availability of the said bulb, creating doubt---Circumstances established that the prosecution failed to prove the case beyond reasonable doubt, resulting in the acquittal of accused---Appeal against conviction was allowed, in circumstances.

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.

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

----Ss. 397, 457, 337-A(i), 148 & 149---Robbery, hurt, shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Presence of the witnesses at the spot and seeing the occurrence doubtful---Appellants were charged for committing robbery in the house of complainant, causing hurt to him and taking away gold ornaments, cash and other valuables---Complainant had not produced any receipt in respect of the gold ornaments allegedly robbed and of the mobile phones nor did he give detail of the cash amount that where from he obtained such amount and where it was available in the house at the time of robbery---Though the complainant in his evidence deposed that he produced the receipts before the Investigating Officer but the same were not exhibited by him or the Investigating Officer in evidence nor the same were available in the file---Even the handkerchiefs used by the accused persons to tie the hands of the complainant and his witnesses were not produced by the complainant nor were such recovered by the Investigating Officer---Complainant in the FIR or at the time of recording his evidence did not depose a single word that the accused persons used stairs while entering in the house or at the time of their escape from the house nor the same had been deposed by the eye-witness---However, other witness had deposed that all the accused persons entered in their house by putting stairs at the wall of their house---During cross-examination he stated that the stairs was lying outside of their house but such stairs was not shown by the Investigating Officer---Said witnesses brought the said stairs in their house which too reflected that none of the witnesses saw the incident and after 21 days they had implicated the present appellants in the case---Circumstances established that the prosecution failed to prove the case beyond reasonable doubt, resulting in the acquittal of accused---Appeal against conviction was allowed, in circumstances.

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

----Ss. 397, 457, 337-A(i), 148 & 149---Robbery, hurt, shajjah-i-khafifah, rioting armed with deadly weapon, unlawful assembly---Appreciation of evidence---Recovery of robbed articles and weapons doubtful---Appellants were charged for committing robbery in the house of complainant, causing hurt to him and taking away gold ornaments, cash and other valuables---Alleged recovery of the robbed articles from the accused persons was doubtful as the mashir of recovery had not supported the version of police officials who were stated to be the witnesses of recovery from the accused persons on information---Police witness deposed that he on information arrested two accused persons after an encounter with the police party and recovered weapons and the robbed articles in presence of mashirs and in their presence such mashirnama was prepared which they signed---One of the mashirs deposed that he and other mashir were available at hotel on 01.06.2020 where one police mobile came and the driver took them towards a place where other police personnel were available and showed them pistol, two gold rings in one bundle, one bundle in which six pairs of cloths were available and one repeater with four cartridges---Said witness stated that police witness did not disclose the reason of taking them to some unknown place---Mashir had not deposed a single word in respect of an encounter in between the police and the accused persons---In such circumstances the recovery shown by the police from the accused was doubtful---Circumstances established that the prosecution failed to prove the case beyond reasonable doubt, resulting in the acquittal of accused---Appeal against conviction was allowed, in circumstances.

(f) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creats reasonable doubt in a prudent mind about guilt of the accused, then the accused 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.

Akbar Ali H. Dahar for Appellants.

Aithbar Ali Bullo, Deputy Prosecutor General, Sindth for the State.

Ali Madad Arijo and Wakeel Ali Shaikh for the Complainant.

Date of hearing: 24th March, 2023.

Judgment

Zulfiqar Ali Sangi, J.---This Criminal Appeal is directed against Judgment dated 27.08.2021, passed by learned VI-Additional Sessions Judge, Larkana in Sessions Case No.645/2020(Re. The State v. Bashir alias Bashoo and three others),emanating from FIR. bearing Crime No.08/2020, offence under sections 397, 457, 337-A(ii), 148, 149 P.P.C, registered at Police Station, Airport, District Larkana whereby present appellants were convicted for offence punishable under section 397 P.P.C. and sentenced to suffer R.I for seven years and for offence under section 457 P.P.C they were sentenced to undergo R.I for three years with fine of Rs.10,000/- each and in default whereof, to suffer S.I for six months more, with benefit of Section 382-B Cr.P.C.

1. The facts in a nutshell as per the contents of FIR lodged by complainant Zameer Ali Sario on 19.05.2020 at P.S Airport are that on 28.04.2020, at about 02.45 a.m, the present appellants/accused made unlawful assembly along with rest of the culprits in prosecution of their common object and trespassed the house of complainant situated in village Imam Bux Sario with intention to commit dacoity duly armed with deadly weapons;on noise the complainant party woke up and identified five amongst eight accused persons as Kehar armed with pistol, Shamroze armed with repeater, Bashir alias Bashoo armed with pistol, Aziz armed with pistol and Hussain armed with pistol and three unidentified with open faces, if seen again will be identified, they aimed their weapons upon the complainant party, complainant resisted but accused Kehar Jatoi hit butt blow of his pistol to him which hit him on nose and blood was oozing, rest of the accused looted the house and took away gold ornaments, cash and other valuables and ran away. Hence the instant FIR.

2. After completion of usual investigation, the case was challaned before the Court of learned Judicial Magistrate by showing accused Bashir @ Bashoo, Aziz, Shamroze in custody and accused Kehar, Hussain, Irfan Ali and two unknown culprits as absconders. Subsequently, accused Irfan Ali joined the trial. The formal charge was framed against all the arrested accused at Exh.06, to which they pleaded not guilty and claimed to be tried vide their pleas recorded.

3. The prosecution in order to substantiate its case examined PW-01 Complainant Zameer Ali who produced FIR of the present case. PW-02 Imam Bux, PW-03 Muhammad Muneer Sario. PW-04 SIP Roshan Ali Bhatti author of FIR who produced roznamcha entry. PW-05 mashir Iqbal Ahmed Sario who produced mashirnama of inspection of injury of the complainant, mashirnama of place of incident, mashirnama of imaginary arrest of accused Shamroz. PW-06 Medical Officer Dr.Zulfiqar Ali Pathan who produced letter of police, Provisional as well as Final Medical Certificate of injured. PW-07 ASI Abdul Haq Sanghro who produced roznamcha entry and mashirnama of arrest of accused Irfan Ali. PW-08 Mashir HC Abbas Ali who produced roznamcha entry and mashirnama of arrest of accused Irfan Ali. PW-09 Mashir H/C Hubdar Ali. PW-10 SIO/Inspector Syed Abdul Hakeem Shah who produced roznamcha entry. PW-11 Mashir H/C Mushtaq Ahmed. PW-12 ASI Mukhtiar Ali Unar who produced mashirnama of arrest and recovery from accused. PW-13 Mashir Nazir Ahmed Junejo. Thereafter, learned State Counsel closed the side of prosecution.

4. The appellants in their statements recorded under section 342 Cr.P.C denied the allegations levelled against them by pleading their innocence. However, none of them examined on oath nor led any evidence in their defence.

5. The learned trial Court on evaluation of the material brought on record and hearing counsel for the parties convicted and sentenced the present appellants/accused vide impugned judgment, as discussed above.

6. It is contended by learned counsel for the appellants that there are material contradictions in the evidence of prosecution witnesses which have shattered the veracity of their evidence; that there is no recovery of any incriminating article from the possession of the appellants to show their involvement in the present case; that there is inordinate delay of 21 days in lodgment of FIR, which has not been plausibly explained by the complainant, thus due deliberation, consultation and false implication of the accused cannot be ruled out; that the learned trial Court acquitted the co-accused Shamroz and Irfan Ali having same set of allegations and thus lastly prayed that the case of prosecution is doubtful and the appellantsare entitled to their acquittal in the circumstances of case.

7. On the other hand, learned counsel for the complainant as well as learned D.P.G.for the State submit that all the witnesses have fully supported the case of prosecution and no major contradiction has been noticed in their evidence, therefore, learned trial Court finding the appellants guilty of the offence has rightly convicted and sentenced them by way of impugned judgment, which does not call for any interference by this Court, hence, the appeal filed by the appellants being meritless is liable to be dismissed.

8. Heard learned counsel for the parties and perused the material available on record with their able assistance.

9. The meticulous re-appraisal of material brought on the record is entailing that though the prosecution witnesses have tried to support the case of prosecution but their evidence when scrutinized deeply was found coupled with material infirmities/improbabilities. The incident took place on 28-04-2020 at 2.45 am in the night and the FIR was registered on 19-05-2020 with the delay of 21 days and the same has not been plausibly explained by the complainant, it has also come on the record that the complainant approached the police on the same day, obtained letter No. 201, dated 28-04-2020 and then appeared at hospital where he was examined by the doctor but he had not narrated the facts in respect of the offence to the police nor he informed the police about the names of the accused persons, which creates very serious doubt in the case of prosecution. The PW Imam Bux also admitted during the cross-examination that after the incident several villagers were gathered there to whom they informed about the incident but not disclosed the names of accused persons to them which itself reflects that complainant party had not identified the accused persons. The PW-2 Imam Bux also admitted during the cross-examination that they took information about the caste and parentages of the accused persons after committing of such dacoity by the accused persons. The Honourable Supreme Court of Pakistan in the case of Pervaiz Khan and another v. The State (2022 SCMR 393) has held that "There is another circumstance that according to prosecution the occurrence took place at 7 p.m. whereas the FIR was chalked out at 11:35 p.m. Although complainant claimed that he arrived in the hospital within one or one and a half hours but even then the report was lodged in the hospital at 11:15 p.m. There is no explanation as to why after reaching the hospital when both the deceased had succumbed to the injuries why they had not reported to the police and where this time was consumed, obviously this time was consumed for deliberation and consultation. This delay could not be explained by learned counsel for the complainant. There is another circumstance that although the dead body was available in the hospital and according to prosecution police also arrived at 11:15 p.m. and the documents of the dead bodies were prepared but postmortem were conducted on the following day i.e. 02.05.2008 at 5 and 6 a.m. So this delayed postmortem also indicates that till time the documents were not prepared and during this time the matter remained under consultation creating serious doubt regarding the prosecution case."

10. The identification of the accused persons at the time and place of incident in the present case is also doubtful. Admittedly the incident took place at 2-45 am of the night and the complainant party after hearing the noise witnessed the incident on the bulb light and the bulb was not taken into possession nor the sketch/mashirnama of place of wardat reflects about the availability of the said bulb.Honourable Supreme Court of Pakistan in the case of Sardar Bibi and others v. Munir Ahmed and others (2017 SCMR 344) has held that "The source of light i.e. bulbs etc. was not taken into possession during investigation to establish that the witnesses who were allegedly at the distance of more than 100 feet could identify the assailants. So the identification of the assailants was also doubtful in such circumstances of the case.

In the case of Abdul Rahim v. Ali Bux and 4 others, (2017 PCr.LJ 228), Division Bench of this Court has held as under:-

"11. Record further reveals that the incident is alleged to have taken place in dark hours of the night and Complainant and PWs/eye-witnesses seen and identified the culprits/Respondents on 7 torch lights, but the said Torches were not produced in evidence, since the source of identification of the culprits is shown as torchlight, which as per verdicts of Superior Courts is weak type of source and unsafe to be relied upon. In this regard reference is made to the case of Hakim Ali, reported in 1996 PCr.LJ 231 (DB-Kar), and case of Aurangzeb, reported in 2008 PSC (Cr.).

1. The complainant had not produced any receipt in respect of the golden ornaments allegedly robbed and of the mobile phones nor did he give details of the cash amount that where from he obtained such amount and where it was available in the house at the time of robbery. Though the complainant in his evidence deposed that he produced the receipts before the investigating officer but the same were not exhibited by him or the investigating officer in evidence nor the same are available in the file. Even the handkerchiefs used by the accused persons to tie the hands of the complainant and his witnesses were not produced by the complainant nor were such recovered by the investigating officer. The complainant in the FIR or at the time of recording his evidence not deposed a single word that the accused persons used stair while entering in the house or at the time of their escape from the house nor the same has been deposed by the PW-2 Imam Bux, however the PW-3 Muhammad Muneer has deposed that all the accused persons entered in their house by putting stairs at the wall of their house, during cross-examination he stated that the stair was lying outside of their house but such stair was not shown to the SIO. They brought the said stair in their house which too reflects that none of the witnesses seen the incident and after 21 days they have implicated the present appellants in the case. The alleged recovery of the robbed articles from the accused persons is also doubtful as the mashir of recovery has not supported the version of police officials who are stated to be the witnesses of recovery from the accused persons on information. The PW-12 ASI Mukhtiar Ali deposed that he on information arrested the accused Aziz and Bashir after an encounter with the police party and recovered weapons and the robbed articles in presence of mashirs Nazir Ahmed and Qaimuddin and in their presence such mashirnama was prepared which they signed. The mashir PW-13 Nazir Ahmed deposed that he and Qaimuddin were available at hotel on 01-06-2020 where one police mobile came and the driver took them toward Sehwani Sarak, where other police personnel were available and shown them pistol, two gold rings in one bundle, one bundle in which six pairs of cloths were available and one repeater with four cartridges. He however during cross-examination stated that ASI Mukhtiar did not disclose the reason of taking them to some unknown place. The mashir had not deposed a single word in respect of an encounter in between the police and the accused persons in such circumstances the recovery shown by the police from the accused is doubtful.

2025 Y L R 1667

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar and Zulfiqar Ali Sangi, JJ

Lal Dino alias Lalan alias Sheeraz---Appellant

Versus

The State---Respondent

Special Criminal Jail Appeal No. D-28 of 2024, decided on 19th November, 2024.

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

----S. 9(b)---Possession of narcotics---Appreciation of evidence---Contradictions in the statements of witnesses---Prosecution case was that 5000 grams hemp contained in gunny bag was recovered from the possession of accused---Complainant stated in his cross-examination that while patrolling, they checked some vehicles and thereafter proceeded to place of incident, while mashir/Police Constable contradicted such point by stating that they patrolled through highway and he did not mention anything about checking of vehicles in between---Complainant stated in his FIR and examination-in-chief that accused on seeing police party tried to escape but in his cross-examination he himself contradicted by stating that accused did not escape and they apprehended him---Mashir also stated in his examination-in-chief that accused tried to escape but he contradicted the same during his cross-examination by stating that accused did not escape---Complainant claimed during cross-examination that he himself conducted personal search of accused while he was in custody of mashir which was contradicted by mashir by stating in his cross-examination that accused was in custody of other Police Constable at that time---Complainant claimed in his cross-examination that he had looked around but no person was there at that time to act as mashir which was contradicted by (police) mashir who stated that at that time people were passing through the road but nobody was willing to act as mashir---Complainant stated in his cross-examination that he prepared memo. of arrest and recovery himself which was too was contradicted by mashir in his cross-examination by stating that other Police Constable had written memo. of arrest and recovery on the dictation of complainant---Investigating Officer stated in his examination-in-chief that due to non-availability of private persons he associated police mashirs during inspection of place of occurrence which was contradicted by complainant and mashir who stated that he did not pick any person to act as mashir, though admittedly place of occurrence was a public road and there were houses and poultry farm located near place of occurrence yet he did not make any effort to arrange private persons to act as mashir---Said contradictions in the evidence of prosecution witnesses indicated that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of the arrest of the accused and recovery of hemp from him had occurred as alleged by the prosecution---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Proof, standard of---Harder the punishment, the stricter the standard of proof.

Ameer Zeb v. The State PLD 2012 SC 380 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---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; Sajjad Hussain v. The State 2022 SCMR 1540; Abdul Ghafoor v. The State 2022 SCMR 1527; Kashif Ali v. The State 2022 SCMR 1515; Muhammad Ashraf v. The State 2022 SCMR 1328; Khalid Mehmood v. The State 2022 SCMR 1148; Muhammad Sami Ullah v. The State 2022 SCMR 998; Bashir Muhammad Khan v. The State 2022 SCMR 986; The State v. Ahmed Omer Sheikh 2021 SCMR 873; Najaf Ali Shah v. The State 2020 SCMR 736; Muhammad Imran v. The State 2020 SCMR 857; Abdul Jabbar v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State PLD 2019 SC 64; Hashim Qasim v. The State 2017 SCMR 986; Muhammad Mansha v. The State 2018 SCMR 772; Muhammad Zaman v. The State 2014 SCMR 749; Khalid Mehmood v. The State 2011 SCMR 664; Muhammad Akram v. The State 2009 SCMR 230; Faheem Ahmed Farooqui v. The State 2008 SCMR 1572; Ghulam Qadir v. The State 2008 SCMR 1221 and Tariq Pervaiz v. The State 1995 SCMR 1345 rel.

Asif Ali Jatoi for Appellant.

Syed Sardar Ali Shah, Addl. Prosecutor General, Sindh for the State.

Date of hearing: 19th November, 2024.

Judgment

Zulfiqar Ali Sangi, J.---The appellant stands booked under Crime No. 158 of 2022 registered at Police Station Ranipur for the offence under Section 9(b) of C.N.S Act 1997 therefore, he was tried by the Court of Additional Sessions Judge-I/Special Judge for CNS, Khairpur (Trial Court) vide Special Case No.73 of 2023 Re: The State v. Lal Dino and another. After full dressed trial, the trial Court found him guilty of the charge hence convicted and sentenced him to suffer R.I for five years with fine of Rs. 30,000/=. In default thereof he was further directed to suffer S.I for three months with benefit of Section 382(b) Cr.P.C in terms of judgment dated 17.02.2024 which is assailed through this jail appeal whereby appellant prays for setting aside the impugned judgment and seeks acquittal.

1. Briefly the prosecution case against the appellant /accused is that on 04.12.2022 at 1600 hours near Watani Bridge on the western top of the Abul Canal, police party headed by ASI Riaz Ali Sodhro during patrolling apprehended him and recovered 5000 grams hemp contained in gunny bag. On his personal search, nothing else was recovered from his possession. About Hemp he disclosed that he purchased hemp from one Haji Shahani for selling and drinking. Due to non-availability of private mashirs, PC- Wali Muhammad and PC Zeeshan Ali Sahito were associated as mashirs. The alleged hemp was sealed at the spot under memo. prepared in presence of police mashirs. Thereafter, apprehended accused and recovered case property were brought to Police Station where complainant lodged FIR on behalf of the State to the above effect.

2. Thereafter, on completion of usual investigation, challan was submitted against accused under section 9(b) of CNS Act 1997 while showing present appellant in custody and co-accused Haji Mohammad on bail and they were sent up to stand trial. After completing the legal formalities the trial Court framed a formal charge against the accused to which they pleaded not guilty and claimed their trial.

3. The prosecution in support of its case, examined complainant ASI Riaz Ali Sodhro, Mashir PC Wali Muhammad Solangi, SIO Insp. Abdul Ghafoor Sargani and WPC Abdul Sattar, Incharge of Malkhana. Thereafter prosecution side was closed. Accused were examined under Section 342 Cr.P.C wherein they claimed themselves innocent, however, they did not examine themselves on oath nor led any defence evidence. Accused Haji Muhammad produced copies of judgments passed in Cr. Case No.74/2017, Cr Case. No. 37/2019, Cr. Case No.295/2015, Cr. Case No.96/2022, Cr. Case No. 182/2021 and Cr. Case No 179/2018.

4. On conclusion of trial, the learned trial Court, after hearing the counsel for both the parties, while acquitting co-accused Haji by extending him benefit of doubt, convicted and sentenced present appellant / accused as stated above vide impugned judgment dated 17.02.2024. Hence the appellant has preferred instant Special Jail Appeal.

5. It is mainly contended by learned counsel for the appellant/ accused that learned trial court has failed to appreciate and appraise the material available on record properly and passed impugned judgment in hasty manner without applying judicious mind which is not sustainable in law, that admittedly the place of occurrence is located at public road from where people were passing and some houses were located nearby but no private person was associated to act as mashir in order to attest the veracity of arrest and recovery, that although Incharge Malkhana was examined who stated that hemp was handed over to him on very day of recovery but he failed to produce any entry under which he handed over the sealed parcel of hemp to I.O for chemical examination nor could produce any proof at trial that actually he was Incharge of the Malkhana; parcel of hemp was transmitted to chemical laboratory on 5.12.2022 but Chemical Examiner furnished report on 22.02.2023 i.e. after delay of two months and 17 days which casts serious doubt;; that the prosecution evidence suffer from major contradictions on material points which make the prosecution case highly doubtful. He urged that prosecution story on the face of it seems to be false, all the prosecution witnesses are police personnel and being subordinate to the complainant are highly interested and partisan and besides, there are major contradictions between statements of P Ws causing serious dent into the veracity of prosecution case against the appellant. Lastly, he contended that by extending benefit of doubt the appellant may be acquitted.

6. On the other hand, learned Addl: PG has supported the impugned judgment and has contended that the prosecution has proved its case beyond a reasonable doubt by producing reliable, trustworthy and confidence inspiring evidence; that this is a crime against society therefore the appellant is not entitled for any lenient view, hence the appeal may be dismissed.

7. We have heard learned Counsel for the appellant/accused and learned Addl.P.G appearing on behalf of the State as well as perused the record made available before us.

8. On careful scanning and reassessment of the evidence of prosecution witnesses, we find multiple contradictions between the statements of prosecution witnesses on material aspects casting serious dent into veracity of prosecution case agaisnt the appellant. Complainant stated in his cross-examination that they patrolled through Ahmed Shah gate, Peeran wari Bridge where they checked some vehicles and thereafter proceeding to place of incident while Mashir PC Wali Muhammad contradicted to this point by stating that they patrolled through Highway, Sobhodero link road gate, Peeran Wari Bridge and then Watni Bridge and he did not mention about any checking of vehicles conducted by them in between; complainant stated in his FIR and Examination-in-Chief that accused on seeing police party tried to escape but in his cross-examination he himself contradicted by stating that accused did not escape and they apprehended him; mashir also stated in his examination-in-chief that accused tried to escape but he contradicted the same during his cross-examination by stating that accused did not escape; complainant claimed during cross-examination that he himself conducted personal search of accused while he was in custody of PC Wali Muhammad which is contradicted by Mashir by stating in his cross-examination that accused was in custody of PC Zeeshan Ali Sahito at that time; complainant claimed in his cross-examination that he saw here and there but no person was there at that time to act as mashir which is contradicted by Mashir PC Wali Muhammad who stated that at that time people were passing through the road but nobody was willing to act as mashir, complainant stated in his cross-examination that he prepared memo. of arrest and recovery himself which is too contradicted by Mashir in his cross-examination by stating that PC Zeeshan had written Memo. of arrest and recovery on the dictation of ASI Riaz Ali; I.O Abdul Ghafoor stated in his examination-in-chief that due to non-availability of private persons he associated police mashirs during inspection of place of occurrence which is contradicted by Complainant and Mashir PC Wali Muhammad who stated that I.O did not pick any person to act as mashir (though admittedly place of occurrence was a public road and there were houses and poultry form located near place of occurrence yet I.O did not take any effort to arrange private persons to act as mashir).

9. The above-noted contradictions arrived in the evidence of prosecution witnesses indicate that the complainant and mashir were not the true eye-witnesses of the incident and no such incident of the arrest of the accused and recovery of hemp from the appellant had occurred as alleged by the prosecution. Taking notice of the contradictions in the evidence of the complainant and the mashir so also of the investigation officer, we are clear in our mind that the prosecution has failed to prove its case against the appellant beyond a shadow of reasonable doubt and the recovery from the appellant has not been satisfactorily proved, therefore, it cannot be excluded beyond consideration that the same has been foisted upon appellant. Both the witnesses have contradicted to each other on material aspects of the case. No implicit reliance can be placed on their evidence in view of aforesaid contradictions in the evidence of prosecution witnesses. It is observed that mere heinousness of the charge and recovery of 5 k.gs hemp is no ground to convict the accused when all the prosecution witnesses are police personnel and admittedly despite people were passing through road no body was asked to act as mashir and attest the recovery and arrest. The prosecution is under a bounden responsibility to drive home the charge by proving each limb of its case. It is further to be noted that in a stringent law such as the CNSA, where capital punishment or imprisonment for life can be awarded even on the testimonies of police officials, in order to bring home guilt against an accused, it is necessary for the prosecution to prove the case through reliable, unrepeatable, and confidence inspiring evidence beyond any reasonable doubt. The harder the punishment, the stricter the standard of proof. Reliance can be placed on the case of Ameer Zeb v. The State (PLD 2012 SC 380), where it was observed as under:-

"Punishments provided in the Control of Narcotic Substances Act, 1997 were quite stringent and long, if not harsh, and, thus, a special care had to be taken that a court trying such an offence had to be convinced that the entire quantity allegedly recovered from the accused person's possession was indeed narcotic substance. We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: "The harsher the sentence the stricter the standard of proof (Underling is provided by us for emphasis.)

In the said Ameer Zaib's case it was also observed that,

2025 Y L R 1677

[Sindh]

Before Salahuddin Panhwar and Adnan-ul-Karim Memon, JJ

The State/ANF through Assistant Director (Law)---Appellant

Versus

Sheikh Kaiser Waheed and another---Respondents

Criminal Appeal No. 471 of 2024, decided on 5th December, 2024.

Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022]---

----Ss. 9(2) & 32---Criminal Procedure Code (V of 1898), S. 516-A---Confiscation and release of case property in narcotic cases on superdari---Scope---Prosecution case was that 744-cartons of medicine were recovered from the container belonging to the accused---Accused filed an application for superdari of the recovered medicine, which was allowed by the Trial Court---Validity---Record showed that the Investigating Officer was specifically asked by the Trial Court whether any incriminating articles were recovered from 744 cartons of medicines and he replied in negative---If that was the position of the case keeping the medicines in the container till the final disposal of the case could perish them and it would be appropriate to release the on superdari, however the Trial Court could direct the production of the medicine by preparing proper inventory if the subject medicine were believed to be case property, which seemed to be not the case of the prosecution---Section 516-A, Cr.P.C outlined the Court's authority to order the custody and disposal of property involved in a crime---Court could order the safe keeping of the property during the inquiry or trial---If the property was perishable, the Court could order its sale or disposal after recording necessary evidence if the same was case property---Court could order the preparation of samples of drugs for safe keeping and destruction of the remaining portion---In the present case, Investigating Officer had prima facie opined that 744 cartons of medicine were not incriminating articles, however the prosecutor insisted that those 744 cartons of medicine could be said to be the case property though not narcotic substance---If said 744 cartons of medicine were not prohibited medicine the same could not be kept in a container to perish, however the Trial Court had taken care of that aspect of the case by its release to the applicant/ accused persons by directing the Nazir to prepare proper inventory---Said order seemed to be reasonable and did not justify interference---Appeal was dismissed accordingly.

Qamar Zaman v. Waseem Iqbal and 5 others 2004 SCMR 1209; Islamic Republic of Pakistan through Deputy Attorney General for Pakistan v. Kenneth Marshal and 2 others 2005 SCMR 594; Gul Dast Khan v. The State 2009 SCMR 431 and Amjad Ali v. State 2012 SCMR 577 rel.

Mohsin Ali Khan, Special Prosecutor ANF.

Ms. Uroosha Memon for Respondent No. 1.

Muhammad Nadeem Qureshi for Respondent No. 2 along with Muhammad Salaman.

Date of hearing: 5th December, 2024.

Judgment

Adnan-ul-Karim Memon, J.---The State appealed the trial court's judgment dated 22.04.2024, which allowed the accused's application to return 744 cartons of medicine and ordered the preparation of an inventory in the presence of the SPP, defense counsel. An excerpt of the order is reproduced as follows:-

"In the light of the above facts and circumstances, this application filed by the applicant/accused persons namely is allowed on furnishing solvent surety in the sum of Rs. 1000,000/- (Rupees one million only) and P.R bond in the like amount. The I/O is directed to return 744 cartons to the applicant/accused persons namely Sheikh Qaiser Waheed and Raheel Qaiser. Moreover, the Nazir of this Court is directed to prepare proper inventory in the presence of learned SPP, learned defense counsel, and I/O of this case."

1. The learned counsel for the appellant argues that the trial court's order is illegal, unlawful, and hasty. The respondents are not the real owners of the 744 cartons of medicine. The I.O. has collected documents indicating that Medisure Laboratories Pakistan Private Limited and Medisure Biotech were involved in the transaction. The learned SPP argued that a large quantity of prohibited tablets was recovered from the container and is liable for confiscation under Section 32 of the CNS Act, 1997. The learned SPP for the appellant requests the appeal's allowance.

2. The learned counsel for respondent No.1 argues that the respondents are reputable pharmaceutical manufacturers who have always followed rules and regulations. The ANF FIR alleges smuggling activities at the South Asia Pakistan Terminal (SAPT) and the seizure of 755 cartons, of which only 11 are relevant to the case. The remaining cartons contain perishable medicinal items. The learned counsel emphasized that the FIR disclosed that the bags containing the recovered narcotic tablets were sealed for analysis, while the remaining cartons were put back in the container and sealed, therefore he requested this court to order the release of these 744 cartons unrelated to the crime to prevent significant financial loss. The counsel for the respondents requests the appeal's dismissal.

3. We have heard the learned counsel for the parties and perused the record with their assistance.

4. The main question is whether the 744 cartons of medicines seized from container BMOU-4619084 are considered case property necessary for the trial. And whether these cartons fall under the purview of Sections 6,7,9(3)Sr. No. 9, 14/15 of the Control of Narcotics Act, justifying its detention by the ANF Police.

5. It appears from the record that on January 1, 2024, an FIR was lodged by ANF Clifton Police regarding the recovery of 755 cartons, including 11 cartons of prohibited tablets of Clonazepam, from container BMOU-4619084. A memo. was prepared, and the case properties were brought to the police station. In the intervening period, the respondents applied for the release of 744 cartons of medicine. The trial court allowed the application, finding no incriminating articles in the 744 cartons, as disclosed by the Investigating officer, and ordered its release on a surety bond of Rs. 1 million.

6. Much emphasis has been laid on the point that a large quantity of prohibited tablets were recovered from the container including unrelated 744 cartons of medicine and are liable for confiscation under Section 32 of the CNS Act, 1997.

7. To understand the aforesaid proposition it is expedient to have a glance at Section 32 of the CNS Act, 1997. Subsection (2) of Section 32 of the Control of Narcotic Substances Act, 1997, states that any narcotic drug, psychotropic substance, or controlled substance that is lawfully imported, transported, manufactured, possessed, or sold, along with or in addition to any narcotic drug, psychotropic substance, or controlled substance liable for confiscation under subsection (1), and the receptacles, packages, vehicles, vessels, and other conveyances used in carrying such drugs and substances, shall also be liable for confiscation. However, no vehicle, vessel, or other conveyance shall be liable for confiscation unless it is proven that the owner knew of the offense.

8. Sub-section (2) of Section 33 of the Control of Narcotic Substances Act, 1997, outlines the procedure for dealing with articles seized under the Act when the offender is unknown or cannot be found. In such cases, the Special Judge is empowered to inquire into the liability of the seized articles for confiscation and can order confiscation accordingly.

9. It appears from the record that the Investigating Officer was specifically asked by the trial court whether any incriminating articles were recovered from 744 cartons of medicines, and he replied in negative. If this is the position of the case to keep the medicines in the container if the final disposal of the case the same medicine can perish and it is appropriate to release the 744 cartons of medicine on superdari however the trial court can direct the production of the medicine by preparing proper inventory if the subject medicine are believed to be case property, which seems to be not the case of the prosecution.

10. Coming to the rule position of the case, Rule 22.16 of the Police Rules, 1934, outlines the procedures for handling case property, Police must seize relevant items and mark them with details of the case and the person from whom they were seized. Seized items must be stored securely until further legal action. Items connected with cases sent for trial or suspicious/unclaimed items ordered by a Magistrate must be submitted to headquarters or outposts. Detained material must be presented to a Magistrate for early disposal or release on security. The Police Rules require that case property be stored in the Malkhana and recorded in Register No. XIX. The police and prosecution are responsible for ensuring the safe custody of the property, including its secure transportation to laboratories for analysis. This procedure guarantees the integrity of the case property until it is presented in court.

11. Section 516-A of the Code of Criminal Procedure (Cr.P.C) outlines the court's authority to order the custody and disposal of property involved in a crime. The court can order the safekeeping of the property during the inquiry or trial. If the property is perishable, the court can order its sale or disposal after recording necessary evidence if the same is case property. The court can order the preparation of samples of drugs for safekeeping and destruction of the remaining portion.

12. With regard to the case law on the subject, it is to be noted that in the case of Qamar Zaman v. Waseem Iqbal and 5 others (2004 SCMR 1209), the Supreme Court held that the gold articles said to be the belonging of the deceased were neither got identified under law nor exhibited in the trial, and as such, reliance on the same and awarding capital punishment would not at all be justified. In the case of State of Islamic Republic of Pakistan through Deputy Attorney: General for Pakistan v. Kenneth Marshal and 2 others (2005 SCMR 594) it was held that the prosecution miserably failed to produce and exhibit the case property though many opportunities were afforded by the trial Court; in such circumstances, it was rightly held by the High Court that there was no possibility of the accused being convicted and continuation of trial against them would be an abuse of the process of the Court. In the case of Gul Dast Khan v. The State (2009 SCMR 431), it was held that it would not be out of place to mention that the case property in that case has neither been exhibited nor produced at the trial, causing a dent in the prosecution's case. In the case of Amjad Ali v. State (2012 SCMR 577) it was held that admittedly the case property, the stepney of the car was never produced during trial to verify as to whether it could contain such a huge quantity of the narcotics in question; the referred elements of doubt surrounding the prosecution case have led us to hold that the prosecution has failed to prove its case beyond reasonable doubt to sustain conviction.

2025 Y L R 1732

[Sindh]

Before Muhammad Jaffer Raza, J

M/s Petroleum Packages (PVt.) Limited. through Authorised Representative---Petitioner

Versus

Pakistan Industrial Development Corporation (Pvt.) Limited through Deputy Manager and another---Respondent

C.P. No. S-321 of 2024, decided on 13th March, 2025.

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

----Ss.15(2)(vii), 15-A & 21---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Personal bona fide need of landlord---Admission as to relationship of landlord and tenant---Plea of multiple tenements by the tenant---Legality---Ejectment application filed by the respondent/landlord was allowed by the Rent Controller and the First Rent Appeal preferred by the petitioner/tenant was dismissed----Validity---High Court disagreed with the plea taken by the tenant---Statement of landlord had gone unrebutted, thus, his personal need stood established---Once the landlord steps into the witness box and the plea of personal need is unrebutted, the ejectment application must be allowed under S. 15 of the Sindh Rented Premises Act, 1979---In presence of several properties, it is the discretion of the landlord/owner to choose the property he wishes to use and in that respect the tenant cannot dictate how and in what manner the owner utilize his property---An embargo of one year has been placed on the landlord in case the landlord wishes to rent out the property to another tenant, which protection was also available to the petitioner/tenant---Constitutional petition was dismissed, in circumstances.

Naveed Merchant v. Pakistan Institute of International Affairs PLD 2012 Sindh 23 and Muhammad Younus v. Additional District Judge (VII), Karachi (South) 2018 YLR 1284 distinguished.

Shakeel Ahmed and another v. Muhammad Tariq Farogh 2010 SCMR 1925; Rabia Jamal v. Mst. Nargis Akhtar C.P. No. S-495 of 2023; Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Wasim Ahmed Adenwalla v. Shaikh Karim Riaz 1996 SCMR 1055 and Mst. Zubeda through her son and General Attorney v. Muhammad Nadir 1999 MLD 3011 rel.

Muhammad Khan for Petitioner.

Asim Iqbal for Respondent No. 1 along with Farmanullah Khan and Syeda Maryam for Respondent.

Irshad Ahmed Shaikh, A.A.G. for the State.

Date of hearing: 10th March, 2025.

2025 Y L R 1765

[Sindh (Sukkur Bench)]

Before Ali Haidar Ada, J

Gulzar Hussain---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-136 of 2025, decided on 13th March, 2025.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(b)---Control of Narcotic Substances (Government Analysts) Rules, 2001, R.4(2)---Possession of 3000 grams hemp/bhang---Bail, grant of---Non-association of private witnesses during recovery proceedings---Delay in sending samples to the Forensic Science Laboratory---As per the prosecution and memo. of occurrence the recovery was allegedly made from the accused from a densely populated street, but no private persons were cited as witnesses---First Information Report was registered on 27-01-2025, while the contraband sample was sent to the Chemical Examiner on 12-02-2025, resulting in a delay of 15 days without any explanation---Investigation Officer failed to adhere to the strict compliance of the provisions of Control of Narcotics Substances (Government Analysts) Rules 2001, particularly sending of sample for analysis after more than 03 days---As per R.4 of the Control of Narcotics Substances (Government Analysts) Rules, 2001, the recovered contraband needs to besent by Investigation agency within 3 days from the date of recovery to the laboratory, whereas in instant case, such requirement had not been complied with by the investigation agency, which created serious doubt upon prosecution case until and unless it gave cogent reasons for such delay---Witnesses cited in FIR were police officials, hence there was no apprehension of tampering with the evidence---Accused had made out a case for grant of post arrest bail---Accordingly, bail application was allowed and accused was admitted to post arrest bail.

Ismail v. The State 2023 MLD 942; Muhammad Amir v. The State 2022 MLD 1538 and Ali Khan v. The State 2022 PCr.LJ 690 ref.

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

----S. 497---Bail---Benefit of doubt---Scope---Any doubt, even if it arises at bail stage, should go in favour of accused.

Naveed Sattar v. The State 2024 SCMR 205 ref.

Manzoor Hussain Larik for Applicant.

Syed Sardar Ali Shah Rizvi, Addl: Prosecutor General for the State.

2025 Y L R 1798

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon, J

Hamayoon Shahzad---Applicant

Versus

The State---Respondent

Criminal Bail Application No.S-16 of 2024, decided on 20th May, 2024.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss. 406 & 420---Criminal breach of trust, cheating---Pre-arrest bail, confirmation of---Further inquiry---Delay in lodging the FIR---Allegation against the accused-petitioner was that government property was handed over to him on monthly rent which was misappropriated---As per record, there was an inordinate delay of more than seven years in lodging the FIR but claim of the parties on the subject property was to be determined by the Trial Court, based on documentary evidence and most of the witnesses had been examined and now the trial was at the verge of conclusion---Thus, at this stage, the element of malice and mala fide on the part of the complainant could not be ruled out as his prima facie intent was to obtain possession of the subject property which was not the function of the Court, however it was for the parties to take resort of civil proceedings---All such factums made the case of the applicant to be one wherein the exercise of extraordinary discretion of pre-arrest bail would be just to meet the ends of justice, particularly, when the circumstances warranting further inquiry and the fact that the alleged offences did not fall within the ambit of prohibitory clause of S.497, Cr.P.C wherein grant of bail was a rule and refusal was an exception---No recovery had been shown by the Investigating Officer, who was even otherwise clueless, which had caused damage to the prosecution case and nobody was bothered to see that factum, therefore the High Court was left with no option, but to accept the plea of applicant at this stage for grant of pre-arrest to him---Consequently, bail application was allowed and the interim pre-arrest bail granted to the applicant earlier was confirmed, in circumstances.

Javed Iqbal v. The State 2022 SCMR 1424; Miran Bux v. The State PLD 1989 SC 347; Khalil Ahmed Soomro v. The State PLD 2017 SC 730 and Muhammad Ramzan alias Jani v. The State and others 2020 SCMR 717 rel.

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

----Ss.497 & 498---Bail---Observation of the Court---Scope---Observations made in the bail order are tentative and should not influence the Trial Court in any manner.

Qurban Ali Malano for Applicant along with Applicant.

Zulfiquar Ali Jatoi, Additional, Assistant P.G for the State.

Date of hearing: 20th May, 2024.

2025 Y L R 1805

[Sindh]

Before Shamsuddin Abbasi, J

Azeem Javed and others---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. 07, 79, 89, 102, 136 and 178 of 2025, decided on 21st February, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 406, 409, 420, 468, 471 & 109---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust, cheating, using forged documents and misconduct---Bail, grant of---Case not falling in prohibitory clause---Tentative assessment of evidence---Benefit of doubt---Accused persons sought their bail after arrest on the plea that offences were not covered under prohibitory clause of S. 497, Cr.P.C.---Validity--- Court cannot go beyond the facts of the case and has to restrict itself to the material placed by prosecution---For the purpose of disposal of bail application tentative assessment is to be made and no deeper appreciation is allowed---In cases where reasonable doubt arises with regard to implication of accused in a crime he should not be deprived of such benefit even at bail stage---Case did not fall in prohibitory clause of S.497(1) Cr.P.C. nor the authorities could show any such circumstance or conduct of accused persons that would bring their case under exception to the rule of granting bail in such offences---Guilt of accused persons was yet to be determined at trial--- Investigation was completed and interim challan was submitted--- There was no indication that accused persons would either interfere in investigation or tamper with evidence--- No useful purpose would be served by keeping accused persons in jail--- Bail was allowed, in circumstances.

Riaz Jafar Natiq v. Muhammad Nadeem Dar and others 2011 SCMR 1708; Tariq Bashir v. The State PLD 1995 SC 34; Zafar Iqbal v. Muhammad Anwar 2009 SCMR 1488 and Muhammad Tanveer v. The State PLD 2017 SC 733 rel.

Muhammad Munsif Jan and Muhammad Imran for Applicant (in Criminal Bail Applications Nos. 07 and 178 of 2025).

Mian Haad A.M. Paggawala for Applicants (in Criminal Bail Application No. 79 of 2025).

Raj Ali Wahid Kunwar for Applicants (in Criminal Bail Application No. 89 of 2025).

Shaukat Hayyat, Syed Muhammad Abdul Kabir and Ms. Amna Magsi for Applicants (in Criminal Bail Application No. 102 of 2025).

Mumtaz-ul-Hassan for Applicants (in Criminal Bail Application No. 136 of 2025).

Irshad Ali, DAG along with Muhammad Junaid Hasan, Inspector/I.O. FIA Anti-Corruption Circle, Karachi for the State.

2025 Y L R 1814

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

Sumair Ali---Applicant

Versus

The state---Respondent

Criminal Bail Application No. S-1336 of 2024, decided on 12th March, 2025.

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

----S. 497(2)---Penal Code (XLV of 1860), Ss. 324, 337-H(2), 504, 147, 148 & 149---Attempt to commit qatl-i-amd, rash or negligent act to endanger human life or personal safety of others, intentional insult with intent to provoke breach of the peace, rioting, rioting armed with deadly weapons, unlawful assembly---Bail, grant of---Further inquiry---Allegations against the appellant was that he along with his co-accused made firing upon the complainant party, and as a result brother of the complainant sustained firearm injuries---Record transpired that though the applicant had been charged by the complainant in the FIR for inflicting injury on the person of his brother through his repeater, however, as per Medico Legal Report, the nature of injury on his person was declared as ghayr-jaifah mutalahimah and the punishment provided for such kind of hurt under S.337-F(iii), P.P.C was imprisonment of either description for term which may extend to 03 years, therefore, the subject offence did not fall within the prohibitory clause of S.497, Cr.P.C.---Grant of bail in such like offences is a rule and refusal thereof is an exception---Upon a plain reading of the FIR, it became abundantly clear that enmity existed between the parties concerning a land dispute, with ongoing litigation---Circumstances of the present case, on the face of it, indicated the possibility that the accused might have been falsely implicated---Moreover, there was delay of eight hours in lodging the FIR and the injury attributed to the applicant did not fall within ambit of prohibitory clause---Applicant had only made single fire upon injured which hit him on his leg being non-vital part of his body making the offence as mentioned in the FIR---Applicant, however, did not repeat the fire despite having ample opportunity to do so, which showed that perhaps the applicant harboured no intention to kill the victim, hence, the applicability of S.324, P.P.C coupled with prosecution's evidence, in particular, the medical evidence of the injured as well as complainant and the recoveries, if any, allegedly made during the course of investigation, shall be determined by the Trial Court after recording of evidence pro and contra---Further, the challan in the subject matter had already been submitted in the Court and the trial was ripe for its commencement, therefore, the guilt or otherwise of the applicant shall better be adjudged by the Trial Court during the course of trial---Even otherwise, bail does not mean the acquittal of accused but only change of custody from government agencies to the surety, who on furnishing bail bonds, takes responsibility to produce the accused whenever required to be produced---Bail application was allowed, in circumstances.

Muhammad Tanveer v. The State and another PLD 2017 SC 733; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Syed Amanullah Shah v. The State and another PLD 1996 SC 241 rel.

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

----S. 497---Bail order---Observations of the Court---Scope---Observations articulated in bail orders are tentative and should neither prejudice nor preempt the merits of the case at the stage of trial.

Abid Hussain Chang for Appellant.

Ms. Sana Memon, Assistant P.G for the State.

Date of hearing: 17th February, 2025.

2025 Y L R 1819

[Sindh]

Before Salahuddin Panhwar and Adnan-ul-Karim Memon, JJ

Khawaja Muhammad Asif---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. 270 of 2023, decided on 3rd December, 2024.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Contradictions in the statement of witnesses---Accused was charged for having possession of 2300 grams charas---Prosecution in order to establish the charge had produced the evidence of four witnesses, who had contradicted each other on material counts---One witness said that the recovery was made in sunlight whereas, another witness said, it was the night which would always lead to the benefit of defence, however, the variance of the testimony of witnesses or inconsistencies on the subject points led to such conclusion, which were material in nature and introduced or suggested a different version to the prosecution case---Major discrepancies in the instant case were of such nature, which could bring the case within the exceptions as the prosecution was duty bound to establish its case independently without any shadow of a doubt---Appeal against conviction was allowed, in circumstances.

Sarfaraz alias Sappi v. The State 2000 SCMR 1758 rel.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Discrepancies---Accused was charged for having possession of 2300 grams charas---In the casesunder Control of Narcotic Substances Act, 1997, the prosecution must establish every step from the step of recovery, making of the sample parcel, safe custody of sample for transfer and safe transmission of the sample to the concerned laboratory---Said chain has to be established by the prosecution---If any link is missing, the benefit of the same has to be extended to the accused---However, in the present case, such chain was not in alignment---Complainant testified that private witnesses were available at the time of the arrest but were not cited as witnesses to the crime---Said witness admitted inconsistencies in the evidence, such as the missing weight of the property and the lack of a register number in the Qaimi entry---Additionally, complainant acknowledged that he prepared crucial documents under sub-optimal lighting conditions---Recovery witness contradicted the claim of complainant about the lighting conditions during the arrest---Appeal against conviction was allowed, in circumstances.

Mst. Sakina Ramzan v. The State 2021 SCMR 451 and Qaiser Khan v. The State 2021 SCMR 363 rel.

(c) Criminal trial---

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

Muhammad Akram v. The State 2009 SCMR 230 and Tariq Pervez v. The State 1995 SCMR 1345 rel.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Non-association of private witnesses at the time of recovery and arrest proceedings---Accused was charged for having possession of 2300 grams charas---Prosecution failed to associate the private witnesses to oversee the recovery proceedings---Police and members of the Anti-Narcotic Force failed to record or photograph at the time of search of the accused, when search, seizure or arrest was made, as the law permitted the use of modern device or techniques---Said material illegalities/infirmities had created reasonable doubt in the case of the prosecution---Appeal against conviction was allowed, in circumstances.

Zahid Sarfaraz Gill v. The State 2024 SCMR 934 rel.

Habib-ur-Rehman Jiskanni for Appellant.

Ali Haider Saleem, Additional P.G. for the State.

Date of hearing: 3rd December, 2024.

2025 Y L R 1827

[Sindh]

Before Naimatullah Phulpoto, ACJ and Irshad Ali Shah, J

Ali Gul and 4 others---Applicants

Versus

The State---Respondent

Criminal Bail Application No. D-2056 of 2023, decided on 29th August, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.457, 354, 337-A(i), 384 & 34---Anti-Terrorism Act (XXVII of 1997), S.7---Lurking house-trespass or house-breaking in order to commit offence punishable with imprisonment, assault or criminal force to woman with intent to outrage her modesty, shajjah-i-khafifah, extortion, common intention, act of terrorism---Pre-arrest bail, grant of---Further inquiry---Complainant and prosecution witness/ victim swore affidavits exonerating the applicants from the commission of the offences---During investigation case was recommended for disposal under "C" class, however, cognizance was taken by the court---While granting pre-arrest bail, merits of the case can be touched by the court---There were no reasonable grounds to believe that the applicants had committed the alleged offences, however, there were sufficient grounds for further inquiry into their guilt---Case was one of further inquiry---Bail was allowed in circumstances, with direction to Trial Court to decide the crucial issue of jurisdiction of Anti-Terrorism Court to try the case before conducting the trial.

Abdul Rehman v. The State and others 2023 SCMR 2081 and Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.

Mohsin Ali for Applicants.

Ms. Rubina Qadir Addl. P.G for the State.

2025 Y L R 1831

[Sindh (Larkana Bench)]

Before Jan Ali Junejo, J

Salman Shaikh---Applicant

Versus

SHO PS Taluka Larkana and others---Respondents

Criminal Misc. Application No. S-362 of 2023, decided on 16th April, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A & 154---Penal Code (XLV of 1860), S. 489-F---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-Officio Justice of Peace---Order passed by Ex-Officio Justice of Peace for the registration of FIR under S.489-F, P.P.C---Petitioner assailed order passed by Ex-Officio Justice of Peace and sought quashing of the same---Allegations of cheque dishonoured, coupled with the applicant's alleged refusal to honour payment despite repeated demands, disclosed a cognizable offence---Ex-Officio Justice of Peace rightly directed the SHO to register FIR if the statement of respondent/complainant substantiated the offence---Contention that respondent/complainant lacked locus standi was irrelevant at present stage---Issue of ownership and contractual validity was sub-judice in the civil suit, but the criminal complaint pertained to the dishonour of a negotiable instrument, which was actionable irrespective of title disputes---No jurisdictional error or illegality was found in the impugned order---Applicant failed to substantiate allegations of malice or ulterior motive on the part of the respondents---Mere pendency of a civil suit does not ipso facto render criminal proceedings malicious---Impugned order was legal, well-reasoned, and sustainable under the law---Civil suit and criminal proceedings shall proceed independently in accordance with law---Criminal miscellaneous application was dismissed accordingly.

Hamid Khan v. The State 2022 MLD 31 ref.

Hamid Khan v. The State 2022 MLD 31 and Seema Fareed and others v. The State and another 2008 SCMR 839 rel.

Safdar Ali G. Bhutto for Applicant.

Muhammad Ali Jagirani for Respondent.

Nazir Ahmed Bhangwar, DPG for the State.

Date of hearing: 16th April, 2025.

2025 Y L R 1854

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

Zain-ul-Abideen Shah---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-06 of 2025, decided on 28th February, 2025.

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

----S. 497---Prevention of Electronic Crimes Act (XL of 2016), Ss. 20, 21, 22 & 24---Penal Code (XLV of 1860), S.109---Harassing, threatening, blackmailing and the unauthorized dissemination of obscene images and videos of complainant via social media, abetment---Bail, refusal of---Allegations against the applicant pertained to blackmail, threats and the unauthorized dissemination of obscene images and videos of complainant via social media platforms---During the course of the investigation, the applicant was apprehended by the FIA police and a VIVO mobile phone, linked to WhatsApp account number +923154528831, was seized---Said device was forwarded to the Forensic Laboratory, the findings of which substantiated the complainant's allegations---Said WhatsApp number was admittedly registered in the applicant's name---Allegations levelled against the applicant were of a grave nature, involving a blatant violation of the victim's dignity and privacy---Digital evidence gathered prima facie established the applicant's involvement in the un-authorized dissemination of obscene material---Act of distributing explicit content online had far-reaching consequences, not only for the victim but also for her immediate family members, subjecting them to profound psychological distress---Such acts could not be overlooked by the Courts in cases of that nature---Delay in lodging the FIR held no merit, as delayed in such cases were a common occurrence---Victims often refrain from reporting such incidents immediately due to fear and concern regarding their modesty---Present case exemplified a situation where judicial prudence demanded caution in the grant of bail---Permitting bail in such instances may establish an adverse precedent, potentially deterring victims from reporting similar offences in the future---Possibility of the applicant tampering with digital evidence or intimidating the victim could not be ruled out---Bail application was dismissed, in circumstances.

Ahmad Khalid Butt v. The State 2011 SCMR 1016; Muhammad Daniyat Farrukh Ansari v. The State 2021 SCMR 557; Sohail Ahmad v. The State 2022 YLR 2210; Abdul Rehman v. the State 2024 YLR 1008; Abdul Rehman v. The State 2022 SCMR 526; Saleem Khalid v. the State 2021 PCr.LJ 119; Fakhar Zaman v. The State 2023 PCr.LJ 496 and Muhammad Haseeb v. The State 2024 PCr.LJ 1462 ref.

Abdul Rehman v. The State 2022 SCMR 526; Muhammad Haseeb v. The State 2021 PCr.LJ 1462; Imran Sarwar v. The State 2022 PCr.LJ 71 and 2018 YLR 239 rel.

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

----S. 497---Bail orders---Observations of the Court---Scope---Observations articulated in bail orders are tentative and should neither prejudice nor preempt the merits of the case at the stage of trial.

Ghulam Ali Talpur for Applicant.

Muhammad Idris for the Complainant.

Bashir Ahmed Almani, Assistant Attorney General for the State.

Date of hearing: 14th February, 2025.

2025 Y L R 1865

[Sindh (Sukkur Bench)]

Before Raizat Ali Sahar, J

Imtiaz Hussain alias Imtiaz and another---Applicants

Versus

The State and another---Respondents

Criminal Bail Application No. S-592 of 2024, decided on 6th February, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 324, 337-A(ii), 337-U, 506(2) & 504---Attempt to commit qatl-i-amd, shajjah-i-mudihah, itlaf of teeth, criminal intimidation, intentional insult with intent to provoke breach of the peace---Pre-arrest bail, confirmation recalling of---Further inquiry---Allegation against the applicants-accused were that they caused injuries by inflicting hatchet blows to the nephew of the complainant---Insofar as applicant "IH" was concerned, the allegations levelled against him related to causing a hatchet blow to injured---Medico-Legal Certificate did not reflect grievous injury in terms of shajjah-i-mudihah or jurh ghayr jaifah munaqqilah, as defined under Ss. 337-A(ii) & 337-F(i) P.P.C---Furthermore, the delay in lodging the FIR remained unexplained, which introduced an element of doubt as to the true genesis of the occurrence, warranting further inquiry within the meaning of S.497(2), Cr.P.C.---Consequently, in the absence of sufficient material to conclusively implicate applicant "IH", the benefit of bail must be extended in his favour---Conversely, accused "M" had been attributed a specific role of inflicting a hatchet blow to the victim's face, causing the fracture of tooth No. 21 (upper right) and lower right 1, as corroborated by the medical certificate---Such an injury fell under jurh ghayr jaifah hashimah, punishable under S.337-A(ii) P.P.C---Where an accused is assigned a direct role in causing grievous hurt, bail may be refused---Furthermore, the principle of falsus in uno, falsus in omnibus (false in one thing, false in everything), does not automatically apply in bail proceedings, and each case must be considered on its own merits---In the present case the ocular and medical evidence sufficiently connected accused "M" with the commission of the offence, thereby disentitling him from the concession of bail---In such eventualities, the bail application of accused "IH" was allowed, consequently the interim pre-arrest already granted to him was confirmed on same terms and conditions---However, the bail application to the extent of accused "M" was dismissed, as such the interim pre-arrest bail already granted to him was recalled/vacated---Orders accordingly.

Mohammad Siddique v. Imtiaz Begum and others 2022 SCMR 442; Haleem Rajar v. The State 2020 YLR Note 66; Zafar Iqbal v. the State 2021 SCMR 1909; Muhammad Rafique v. The State PLD 2022 SC 694 and 2021 MLD 166 rel.

Abdul Ghani Abro for Applicants.

Muhammad Bux Banghwar for the Complainant.

Syed Sardar Ali Shah, Additional Prosecutor General for the State.

Date of hearing: 6th February, 2025.

2025 Y L R 1877

[Sindh (Mirpurkhas Bench)]

Before Amjad Ali Bohio and Dr. Syed Fiaz-ul-Hassan Shah, JJ

Muhammad Kashif---Appellant

Versus

The State---Respondent

Criminal Appeal No. D-24 of 2024, decided on 18th February, 2025.

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

----Art.78---Document filed without objection---Effect---When any document is exhibited without objection, it becomes admissible evidence and can be relied upon.

Shafqat Ali and others v. The State PLD 2005 SC 288 and Zakir Khan v. The State 1995 SCMR 1793 rel.

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

----Ss. 9(1), Sr. No. 3(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession and transportation of 2020 grams charas---Appreciation of evidence---Non-association of private witnesses at the time of arrest and recovery---Effect---Accused was charged for having in possession 2020-grams charas---Alleged by defence that no private witnesses was associated at the time of arrest of accused and recovery of narcotic substance---In the case of appellant, there was hindered possibility to engage an independent person to witness the search, recovery and seizure and arrest and the prosecution had explained it---Provision of S.103, Cr.P.C., is not rule of evidence but it is rule of prudence---In the cases registered under the Control of Narcotics Substance Act, 1997, the rule of exclusion of S.103, Cr.P.C., was envisaged under S.25 of the Act, 1997---Bare perusal of S.25 of the Control of Narcotics Substance Act, 1997, expounds that while making search and arrest, it is not absolute to avoid the provisions of S.103 of the Code and it is subject to compliance of S.21 of the CNS Act, 1997, by paving out way under S.25 of the CNS Act, 1997, or unavoidable circumstances such as possibility of escape or concealment or removal or destroy of case property or evidence which may put the prosecution in trouble to establish during the evidence---Therefore, the police officials are good witnesses and exclusion of independent witness can be excused while awarding sentence---Appeal against conviction was dismissed, in circumstances.

Zardar v. The State 1991 SCMR 458; The State v. Muhammad Amin 1999 SCMR 1367; Shabbir Hussain v. The State 2021 SCMR 198; Mushtaq Ahmad v. The State and another 2020 SCMR 474; Faisal Shahzad v. The State 2022 SCMR 905; Ijaz Ahmed v. The State 2009 SCMR 99; Liaquat Ali and another v. The State 2022 SCMR 1097 and Rehmat Gul v. The State 2022 PCr.LJ 10 rel.

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

----Ss. 9(1), Sr. No. 3(c) & 25---Possession and transportation of 2020 grams charas---Appreciation of evidence---Accused was charged for having in possession 2020-grams charas---Record showed that the prosecution had successfully proved the memo. of recovery and its seizure---Evidence of the complainant and recovery witness had not broken down by the defence and the evidence was trustworthy and the plausible explanation had been given by the prosecution for non-availability of private person or independent person not joined at the crime scene which was admittedly a populated place---Prosecution had produced Incharge Malkhana to whom the case property was handed over by the Investigation Officer for the safe custody with entrustment to keep in Malkhana/official storeroom---Evidence of said witness had also not shaken by the defence and his evidence remained firm and trustworthy---Evidence of the Incharge Malkhana was not shaken and no question about the safe custody and safe transmission of case property or Register No.19 was put by the defence---Even no question had been put with regard to the chemical analysis and it report prepared by the laboratory produced which clearly proved that case property was charas and nothing else---Accuracy, description and flow of the documents as well as oral evidence and documentary evidence were consistent with each other---Appellant had failed to point any illegality or material irregularity in the case of prosecution---Appeal against conviction was dismissed, in circumstances.

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

----Ss. 9(1), Sr. No. 3(c) & 25---Possession and transportation of 2020 grams charas---Appreciation of evidence---Non-production of second recovery witness----Accused was charged for having in possession 2020-grams charas---Alleged by defence that only one recovery witness was produced, which was fatal to the prosecution case---Complainant who wrote the mashirnama and signed the same being the author and the attesting witness of the said document were examined before the trial Court and document was exhibited without objections---During cross-examination, neither signature of ascribe was challenged nor the writing on document (Memo. randum of Recovery) was controverted and the document of recovery was not disputed at all---Even, the veracity of Memorandum of Recovery & Seizure was not denied---Thus, stance of defence had no force at that belated stage---Court were conscious that even a natural witness would not necessarily stand to be the witness of truth and for that reason the satisfaction of the Court was a rule for appreciation of evidence that the evidence of witness to consider and evaluate in a manner that was believable to a prudent mind---Conviction could be given on the sole evidence of a material witness---Conversely, the failure of direct evidence was always sufficient to hold a criminal charge as 'not proved' and requirement of independent corroboration was only a rule of abundant caution and it was not a mandatory rule to be followed invariably in each case---Therefore, an eye-witness was always sufficient to establish the guilt if his evidence was confidence inspiring and trustworthy and corroborated by another independent source of evidence because the law considered the quality of evidence and not its quantity to prove the charge---Appeal against conviction was dismissed, in circumstances.

Muhammad Aslam v. The State and others 2017 PCr.LJ 1264 rel.

Mian Taj Muhammad Keerio for Appellant.

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

Date of hearing: 18th February, 2025.

2025 Y L R 1908

[Sindh]

Before Muhammad Saleem Jessar, J

Muhammad Awais---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-163 of 2025, decided on 21st April, 2025.

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

----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), 9(c)---Possession of narcotic substance---Bail, grant of---Further inquiry---Allegation against the applicant was that he was found in possession of 1100-grams charas---Admitted fact on record that the brother of applicant had filed an application under S.491, Cr.P.C, alleging illegal detention of applicant at Police Station, however, the same was dismissed due to non-recovery of the applicant in the raid, proceeding conducted by the Magistrate---One more shocking thing was that the SHO of the Police Station who had produced copy of instant FIR before the Court on 08.03.2025 and on the basis of said FIR, the application under S.491, Cr.P.C, moved by his brother was dismissed---Now question arose how the SHO of concerned Police Station knew that applicant was arrested by SHO of other police station, meaning thereby the SHO Police Station concerned had taken away accused and then handed over/shifted his custody to SHO of other Police Station, who subsequently implicated the applicant in this case by foisting contraband---Hence, the defence plea was quite reasonable and carried weight---Surprisingly, a person hailing from a town was booked by SHO, Police Station, which stations was at quite different part of the province; hence, it did not apply to a prudent mind that a person, who had no previous CRO could travel such a long distance along with meager quantity of contraband---Documentary evidence adduced reflected that the police had extended their helping hand to the opponents of the applicant and thereby involved him in that false case by foisting contraband upon him---No independent person was shown to have witnessed the alleged recovery, though the place of recovery was said to be busy area of the town---Further, the police also failed to make video recordings/ take photographs of the search, seizure and arrest---Applicant was in jail since the date of his arrest---Section 9(1) of the Act provided punishment with imprisonment up-to fourteen years and not less than nine years for possessing, importing, or exporting and trafficking 'charas' in contravention of Ss. 6, 7 & 8 of the Act, for more than 1000 grams and up-to 4999 grams in quantity---At bail stage lesser punishment was to be considered---Quantum of punishment could only be decided by the trial Court after recording pro and contra evidence at trial---No previous record showing involvement of the applicant in any crime of the like nature had been placed---In such circumstances, the case of the applicant was squarely fell within the purview of further enquiry, as contemplated by S.51(2) of the Act, read with S.497(2), Cr.P.C.---Bail application was allowed accordingly.

Zahid Sarfaraz Gill v. The State 2024 SCMR 934 rel.

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

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

Muhammad Afzal Jagirani for Applicant.

Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State.

Date of hearing: 21st April, 2025.

2025 Y L R 1931

[Sindh (Sukkur Bench)]

Before Riazat Ali Sahar, J

Gulshan Ali Mahar---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-29 of 2025, decided on 6th February, 2025.

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

----Ss. 498 & 497(2)---Penal Code (XLV of 1860), 409 & 34---Prevention of Corruption Act (II of 1947), S. 5(2)---Criminal breach of trust by public servant, criminal misconduct---Pre-arrest bail, confirmation of---Further inquiry---Allegations against the applicant/accused were that he while posted as SIO, at a Police Station, received government SMG from armoury of Police Station through co-accused and deposited the weapon after keeping with him at his residence for ten months; the numbers on body and butt at weapon were found punched and necessary parts of said weapon were also changed by him---Allegations against the applicant were yet to be substantiated through cogent and convincing evidence---Mere recovery of a government-issued weapon with certain alterations, without any clear and direct evidence of criminal intent or wrongful gain, raised substantial doubts regarding the culpability of the applicant, which could only be determined at trial---Furthermore, the fact that the co-accused had already been admitted to pre-arrest bail reinforced the rule of consistency in granting similar relief to the present applicant---Moreover, the allegation that the applicant tempered with the government-issued weapon by altering its serial numbers and changing necessary parts remained unsubstantiated in the absence of a forensic or ballistic report---There was an inordinate and unexplained delay of twelve years in the registration of the FIR---Delay in lodging the FIR not only diminished the evidentiary value of the case of prosecution, but also casted serious doubts over the veracity of allegations---Delay of such magnitude, without any plausible justification, suggested mala fide intent and ulterior motives on the part of the prosecution---Keeping the applicant behind the bars would serve no beneficial purpose, particularly when there was no apprehension of tampering with evidence or absconding---Record indicated that the applicant had diligently attended trial proceedings, demonstrating his bona fide intent to face the allegation against him---Denying bail in such a scenario would not only amount to pre-trial punishment but would also undermine the fundamental rights of applicant---In such circumstances, the case against the applicant required further inquiry---Interim pre-arrest bail granted to the applicant was confirmed accordingly.

Chairman NAB v. Nisar Ahmed Pathan PLD 2022 SC 475 rel.

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

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

Gulshan Ali Mahar is present along with Abdul Samad Noonari for Applicant.

Syed Sardar Ali Shah, Additional Prosecutor General for the State.

Date of hearing: 6th February, 2025.

2025 Y L R 1946

[Sindh (Larkana Bench)]

Before Nisar Ahmed Bhanbhro, J

Deedar Ali Golo---Applicant

Versus

Attaullah Golo and 4 others---Respondents

Criminal Miscellaneous Application No. S-24 of 2025, decided on 7th April, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 365-B, 452 & 395---Kidnapping, house-trespass after preparation for hurt, dacoity---Petition for cancellation of bail, dismissal of---Cancellation of Bail---Grounds---Accused-respondents were charged for kidnapping/abducting the daughter and niece of complainant---Grounds urged for cancellation of bail did not find support from the material collected during investigation---Trial Court granted bail to the accused/respondents on the strength of the material available on record---Principles for cancellation of bail were quite different, and once the Trial Court granted bail to the accused by exercising well-reasoned discretion, then the scope for interference under appellate or revisional jurisdiction of the High Court was very limited and restricted---Grant of bail was nothing but shifting of the custody of the accused in the hands of surety to secure his attendance during trial---Grant of bail during pendency of trial was not a vested and qualified right of the accused, such a concession could be withdrawn when misused---Court would not hesitate to exercise its discretion to cancel bail, if it was established on record that the accused, after securing bail, was involved in a mischief that undermined the administration of justice, attempted to influence or intimidate witnesses, tampered with evidence, repeated the offence while on bail, or violated the conditions imposed by the Court, failed to appear before the Court without just cause, or if new facts come to light that controvert the facts on which bail was granted; the Court may in such a situation revoked the concession of bail---Court may interfere and cancel the bail when it transpires that bail granting order was perverse on the face of it, or the bail was granted in clear disregard and contravention to the settled proposition of law, or the bail was granted against the weight of material available on record, or the Court while granting bail entered into a deeper analysis of material available which prejudiced the case of either side, or the bail granting order was capricious, whimsical or arbitrary in nature and was based upon some erroneous conclusions---In the present case, no illegality or infirmity had been pointed out in the impugned orders to attract any of the grounds for cancellation of bail---Application for cancellation of bail was dismissed in limine.

Sami Ullah and another v. Laiq Zada and another 2020 SCMR 115 rel.

Ashfaque Hussain Abro for Applicant.

Muhammad Noonari, D.P.G for the State.

Nemo for Respondents Nos. 1 to 3.

Date of hearing: 7th April, 2025.

2025 Y L R 1954

[Sindh (Sukkur Bench)]

Before Muhammad Saleem Jessar, J

Muneer Ahmed and 2 others---Applicants

Versus

The State---Respondent

Criminal Bail Application No. S-705 of 2024, decided on 14th November, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 497(2) & 498---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-A(ii), 337-F(i), 337-F(vi), 337-L(2), 147, 148 & 149---Attempt to commit qatl-i-amd, shajjah-i-khafifah, shajjah-i-mudihah, ghayr-jaifah-damiyah, munaqqilah, causing hurt, rioting, rioting armed with deadly weapons, unlawful assembly---Pre-arrest bail, confirmation of---Further inquiry---Gist of allegations in FIR transpired that due to property dispute, accused-petitioners assaulted the complainant party, due to which two persons sustained injuries---No doubt the applicants were nominated in the F.I.R with specific role of causing injuries to witnesses---Injuries allegedly sustained by the injured witnesses were either on non-vital part of the body or carried lesser punishment---Injuries attributed to applicant "MA" that he allegedly caused lathi blow to injured on his head and chin were belied by the medical evidence as per medical certificate, the injuries so sustained by him on his chin was available only---Injury attributed to said applicant sustained on the head of injured was missing---None of accused had repeated the injury through which it could be deduced that they had not any intention to commit qatl-i-amd of the witnesses, hence application of S.324 P.P.C was yet to be determined by the trial Court after recording evidence of the prosecution witnesses---In the circumstances, when the parties were already on strained relations over landed property and the land claimed by the complainant party to be their own was in possession of the accused since 2007, therefore, agreement executed by father of the complainant party had not been denied---Mala fide on the part of prosecution could not be ruled out, thus case required further inquiry within the meaning of subsection (2) to S.497, Cr.P.C---Consequently, bail application was allowed and interim bail already granted to the applicants was confirmed.

Ghulam Qadir v. The State 2022 SCMR 750; Attaullah v. The State 2024 PCr.LJ 940; Owaisullah Khan and another v. The State 2012 MLD 586 and Syed Safdar Abbas and others v. The State 2007 YlR 1714 ref.

Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427; Khalil Ahmed Soomro and others v. The State and another PLD 2017 SC 730 and Muhammad Tanveer v. The State and another PLD 2017 SC 733 rel.

Manzoor Ahmed Mahesar for Applicants.

Syed Sardar Ali Shah, Addl. P.G for the State.

Khan Muhammad Sangi for the Complainant.

Date of hearing: 14th November, 2024.

2025 Y L R 1959

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito, J

Nadir Ali and others---Appellants

Versus

The State---Respondent

Criminal Bail Applications Nos. S-936, S-983 and Criminal Misc. Application No. S-568 of 2024, decided on 17th January,2025.

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

----Ss. 497(5) & 498---Penal Code (XLV of 1860), Ss. 324, 452, 337-A(i), 337-F(i), 504, 506, 114, 147 & 149---Attempt to commit qatl-i-amd, house-trespass after preparation for hurt, shajjah-i-khafifah, ghayr-jaifah-damiyah, intentional insult with intent to provoke breach of peace, criminal intimidation, abettor present at the time of occurrence, rioting, unlawful assembly---Interim pre-arrest bail, recalling of---Post-arrest bail, cancellation of---Allegation against the accused-applicants were that they while armed with hatchet, lathis and iron rods disallowed the police party and complainant party to enter in the house to recover the alleged detainee and caused injuries to the complainant party---In the instant matter, four accused/applicants sought pre-arrest bail, whereas complainant sought cancellation of bail granted to four other accused/respondents---Perusal of record, reflected that the names of all the applicants/accused were appearing in the FIR with specific role that on the day of incident all of them with common intention duly armed with hatchet, lathis and iron rods respectively, did not allow the police party to enter inside the house and the every accused had given hatchet, lathis and iron rods blows to the injured persons---Furthermore, the Investigating Officer of the case also confirmed that when the complainant party in pursuance of Court's order tried to recover the alleged detainee, the daughter of complainant, the accused party did not allow the same and attacked upon the complainant party who received multiple injuries, as such, instant FIR was registered---Admittedly, all the accused had been nominated in the FIR with specific role that they had caused injuries to the complainant party---Ocular evidence found support from the medical evidence---All the prosecution witnesses had supported the version of complainant---Complainant party received injuries on the different parts of their bodies---Applicants had failed to make out the case for further inquiry as envisaged in subsection (2) of S.497 Cr.P.C. in circumstances---Consequently, bail applications were dismissed and resultantly, interim pre-arrest bail granted earlier to some of the accused persons was recalled---Furthermore criminal Miscellaneous Application was allowed and post-arrest bail granted to some of the respondents/accused was cancelled.

PlD 1995 SC 34; 2009 MLD 21; 2013 MLD 831; 2022 MLD 1088; 2014 PCr.LJ 1719 and 2015 YLR 2595 ref.

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

----Ss. 497 & 498---Bail---Observations made in bail orders---Such observations are tentative in nature, and should not influence the Trial Court while deciding the case of the applicants/ accused on merits.

Nadir Ali, Amir Khan, Mohammad Aslam and Mohammad Awais present on interim pre-arrest bail (Applicants in Criminal Bail Application No. S-936 of 2024).

Sikandar Ali in custody (Applicant in Criminal Bail Application No. S-983 of 2024). Naseer Ahmed alias Kandoo, Ghulam Murtaza, Basheer Ahmed, Muhammad Sajjan Respondents Nos. 2 to 4 (in Criminal Miscellaneous Application No. S-568 of 2024), through Abdul Rahim Chandio, Advocate.

Ms. Rameshan Oad, Assistant Prosecutor General Sindh for the State.

Farhad Ali Abro for the Complainant.

Date of hearing: 17th January, 2025.

2025 Y L R 2004

[Sindh]

Before Adnan Iqbal Chaudhary, J

M/s Insaf Brothers through Authorized Representative---Plaintiff

Versus

Province of Sindh through Secretary Local Government, Karachi (Central) and 6 others---Defendants

Suit No. 971 of 2022, decided on 13th May, 2024.

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

----S. 10---Res-sub judice, principle of---Applicability---Where entitlement to relief sought in subsequent case cannot be decided in the previous case, and some matters in issue in subsequent case are not the same as in the previous case, then S.10, C.P.C. does not apply.

Atif Mehmood Kiyani v. Sukh Chayn (Pvt.) Ltd. 2021 SCMR 1446 rel.

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

----Ss. 42 & 54---Sindh Public Procurement Rules, 2010, R. 32---Procurement Regulations (Works), Regln No. 7.6(B)(i)(2)---Civil Procedure Code (V of 1908), O.XXXIX, Rr. 1 & 2---Suit for declaration and injunction---Interim injunction, grant of---Public procurement---Bidding document---Minor and major deviations---Plaintiff / company was aggrieved of issuance of Letter of Award in favour of defendant / company, despite reversal of decision of Procurement Committee by Complaints Redressal Committee (CRC)---Validity---Review Committee disagreed with the CRC and the Project Consultant that deviations in the bidding documents of plaintiff / company were minor---As per Review Committee, the deviations were of mandatory requirements but Review Committee did not notice relevant clause of bidding documents and Regulation No. 7.6(B)(i)(2) of Procurement Regulations (Works) had already classified which deviations were to be treated as minor and which ones as major---As per evaluation report of Project Consultant even bidding documents submitted by defendant / company were with similar minor deviations---Without discussing report of Project Consultant, the Procurement Committee had proceeded to award the contract to the defendant / company, who had quoted the highest price for the Project---Such material aspect of the matter was ignored by Review Committee---Even if the order passed by Review Committee was within its jurisdiction, it was prima facie the result of misreading of record and an erroneous interpretation of the Sindh Public Procurement Rules, 2010---High Court confirmed interim injunction already passed in favour of plaintiff / company---Application was allowed, in circumstances.

Atif Mehmood Kiyani v. Sukh Chayn (Pvt.) Ltd. 2021 SCMR 1446; Sales Tax Gujranwala v. Super Asia Mohammad Din and Sons 2017 SCMR 1427 and Sindh Petroleum and CNG Dealers Association v. Federation of Pakistan 2020 CLC 851 ref.

Maaz Waheed along with Usman Khan for Plaintiff.

Imran Ahmed Jatoi, Assistant Attorney General, Sindh for Defendant No. 1.

Nemo for Defendants Nos. 2, 4 and 6.

Muhammad Asad Ashfaq Tola for Defendant No. 3.

Badar Alam and Farzana Yasmin for Defendant No. 5.

Qamar Zaman Shah, Assistant Director (Legal) for Defendant No. 7.

Dates of hearing: 8th, 23rd November, 2024 and re-hearing on 7th May, 2024.

2025 Y L R 2042

[Sindh (Hyderabad Bench)]

Before Mahmood A. Khan and Abdul Hamid Bhurgri, JJ

Yameen---Appellant

Versus

The State---Respondent

Criminal Appeal No. D-50 of 2023, decided on 11th February, 2025.

(a) Criminal trial---

----Minor procedural lapses---Scope---Minor procedural or technical lapses should not be allowed to overshadow the substance of a case where the guilt of the accused is otherwise substantiated.

Ismail v. The State 2010 SCMR 27 rel.

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

----S. 9(1), Sr. No. 3(c)--- Control of Narcotic Substances (Government Analysts) Rules, 2001, R. 4(2) --- Possession and transportation of charas---Appreciation of evidence---Accused was charged for having in possession 3000-grams charas---Fundamental obligation of the prosecution in narcotics cases was to establish an unbroken chain of custody, ensuring that each stop in the recovery, handling and examination of the seized substances was accounted for---In the present case, the prosecution successfully discharged that burden by producing documentary evidence and the testimonies of relevant witnesses corroborated that the narcotic substance was lawfully seized and subsequently examined by the chemical laboratory incharge---In order to prove the case, prosecution had examined all the material witnesses placed all the material documents showing that chain of custody---Prosecution examined SIP, who produced entry of departure No.11, memo. of arrest and recovery and FIR---Inspection report of the crime scene had been produced by Police Constable, who acted as mashir---Investigating Officer had produced all relevant entries, he also produced criminal record of the appellant/accused and the chemical examination report---Custodian of Malkhana produced Entry No. 16 and as the last carrier of the case property, Police Constable was also examined---Thus, the prosecution by producing said evidence successfully discharged its burden---No material contradiction had been noted in their cross examinations by the High Court after carefully scanning the same---All material prosecution witnesses withstood cross examination without deviation from their initial statements---Chemical Examiner Report confirmed the presence of charas, which was sent to Chemical Examiner by the prosecution within 72 hours in compliance with the statutory requirement of R.4(2) of the Control of Narcotic Substances (Government Analysts) Rules, 2001---Prosecution's witnesses being members of the raiding party were natural witnesses and their testimony could not be discarded merely on the ground that they were the employees of police force---Appellant had failed to demonstrate any animosity or ill will towards the prosecution witnesses---Absence of any established enmity or plausible motive for false implication served as significant circumstance supporting the case against the accused---Appeal against conviction was dismissed, in circumstances.

Zafar v. The State 2008 SCMR 1254; Shabir Hussain v. The State 2021 SCMR 198 and Sallahuddin v. The State 2010 SCMR 1962 rel.

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

----Ss. 9(1), Sr. No. 3(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession and transportation of charas---Appreciation of evidence---Non-association of private witnesses at the time of arrest and recovery---Effect---Accused was charged for having in possession 3000-grams charas---Appellant had strongly contended that the testimony of Police Officials could not be relied upon in view of S.103, Cr.P.C---Said stance had no force as the applicability of S.103, Cr.P.C., in the narcotics cases had been excluded in view of S.25 of the Act, 1997---Appeal against conviction was dismissed, in circumstances.

Mian Taj Muhammad Keerio for Appellant.

Shawak Rathore, Deputy Prosecutor General for the State.

Date of hearing: 11th February, 2025.

2025 Y L R 2113

[Sindh]

Before Muhammad Jaffer Raza, J

M/s Gizri Corporation (Pvt.) Limited. through Authorized Representative---Petitioner

Versus

Pakistan industrial development corporation (Pvt.) Limited through Deputy Manager and another---Respondents

Civil Petition No. S-320 of 2024, decided on 13th March, 2025.

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

----Ss.15(2)(vii), 15-A & 21---Constitution of Pakistan, Art. 199---Constitutional petition---Ejectment of tenant---Personal bona fide need---Admission as to relationship of landlord and tenant---Plea of multiple tenements by the tenant---Ejectment application filed by the respondent/landlord was allowed by the Rent Controller and the First Rent Appeal preferred by the petitioner/tenant was dismissed----Validity---Statement of landlord had gone unrebutted, thus, his personal need stood established---Once the landlord steps into the witness box and the plea of personal need is unrebutted, the ejectment application must be allowed under S. 15 of the Sindh Rented Premises Act, 1979---In presence of several properties, it is the discretion of the landlord/owner to choose the property he wishes to use and in that respect the tenant cannot dictate how and in what manner the owner utilizes his property---An embargo of one year has been placed on the landlord in case the landlord wishes to rent out the property to another tenant, which protection was also available to the petitioner/tenant---Constitutional petition was dismissed, in circumstances.

Naveed Merchant v. Pakistan Institute of International Affairs PLD 2012 Sindh 23 and Muhammad Younus v. Additional District Judge (VII), Karachi (South) 2018 YLR 1284 distinguished.

Shakeel Ahmed and another v. Muhammad Tariq Farogh 2010 SCMR 1925; Rabia Jamal v. Mst. Nargis Akhtar C.P. No. S-495 of 2023, Order dated 21.07.2023; Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Wasim Ahmad Adenwalla v. Shaikh Karim Riaz 1996 SCMR 1055; Mst. Zubeda through her son and General Attorney v. Muhammad Nadir 1999 MLD 3011 and Mst. Dilshad Bibi v. Ramzan Ali 2006 CLC 1853 rel.

Muhammad Khan for Petitioner.

Asim Iqbal, for the Respondent No. 1 along with Farmanullah Khan and Syeda Maryam for Respondent.

Irshad Ahmed Shaikh, A.A.G. for the State.

Date of hearing: 10th March, 2025.

Order

Muhammad Jaffer Raza, J.---The instant petition has impugned the Judgment and Decree dated 26.02.2024 ("Impugned Judgment") passed in F.R.A. No.09/2024.

Brief facts of the instant petition can be summarised as follows: -

1. The Respondent No.1 filed Rent Application No.844/2022 under Section 15 (2) (vii) of the Sindh Rented Premises Ordinance, 1979 ("SRPO") on the sole ground of personal bona fide need. The said Rent Application was allowed vide order dated 30.11.2023. Thereafter, the Petitioner filed F.R.A. No.09/2024 under Section 21 of the SRPO and the same was dismissed vide Impugned Judgment and Decree dated 26.02.2024. It has been contended on behalf of the learned counsel for the Petitioner that the Petitioner has been in possession of the tenement for approximately 40 years and has regularly been paying the rent to the Respondent. It is further stated by the learned counsel that the Tenancy Agreements were mutually renewed from time to time and there is no default on part of the Petitioner and it was only the Respondent who arbitrarily did not receive the rent for which the Petitioner had no option but to file MRC No.464/2022.

2. It was however stated by the learned counsel that rent application filed by Respondent was on the sole ground of personal bona fide need and the aspect highlighted in the paragraph above need not require any further deliberation. Learned counsel for the Petitioner has submitted that the case against the Petitioner has been filed malafidely and the tenement is not required by the Respondent in good faith. Learned counsel further stated that the Respondents Nos.1 has 14 tenants and has only issued notices to two tenants which reflect that the requirement is not bona fide and the Petitioner for reasons best known to Respondent No.1, is being specifically targeted. It has also been contended by the learned counsel that the requirement of the Respondent No.1 according to his own statement is approximately 6000 sq. ft., whereas, Petitioner is in possession of only 2300 sq. ft., therefore, even if the Petitioner is ejected from the tenement in question, it would still not satisfy the alleged bona fide of the Respondent No.1.

3. It has also been pointed out by the learned counsel that the Respondent No.1 already has significant number of properties in which the employees of Respondent No.1 and its subsidiary companies may be accommodated. Lastly, learned counsel has submitted that the Respondent No1 had filed an application under Section 8 of the SRPO for fair rent against other tenants and this ground is enough to extinguish the myth of personal bona fide need. Learned counsel in this regard has relied upon the following judgments: -

i. Naveed Merchant v. Pakistan Institute of International Affairs1

ii. Muhammad Younus v. Additional District Judge (VII), Karachi (South)2

1. Conversely, learned counsel for the Respondent No.1 has vehemently argued that the relationship of tenant and landlord has been admitted by the parties and the learned counsel to establish the personal bona fide need of the Respondent No.1 has taken me through the following documents. The same were filed along-with the objections to the instant petition and it is admitted that the same were exhibited before the Learned Rent Controller.

| | | | | | --- | --- | --- | --- | | Sr. | Document name | Date | Annexure | | 1. | Tenancy Agreement | 15.07.2019 | R/1 | | 2. | Memorandum | 23.12.2019 | R/2 | | 3. | Scheme of Amalgamation | | R/3 | | 4. | SECP Letter | 08.11.2021 | R/4 | | 5. | Notification of SECP | 15.12.2021 | R/5 | | 6. | Eviction Notice | 20.12.2021 | R/6 | | 7. | Termination of Tenancy | 01.12.2021 | R/7 | | 8. | List of Employees | | R/8 |

1. It has been argued in the light of the documents above identified by the learned counsel for the Respondent No.1 that the said Respondent has satisfied his requirement for personal bona fide need and, therefore, the Petitioner may be ejected from the premises. The learned counsel has more specifically relied on the list of employees (R/8) which according to him need to be accommodated in the tenement in question. Lastly, learned counsel for the Respondent No.1 has stated that in the light of the concurrent findings against the Petitioner, the same require no interference by this Court. He relied upon the following judgments: -

i. Shakeel Ahmed and another v. Muhammad Tariq Farogh3

ii. Rabia Jamal v. Mst. Nargis Akhta4r

1. I have heard learned counsel for the parties and perused the record. I have specifically asked the learned counsel for the Petitioner to identify parts of the cross-examination of Respondent No.1 in which, according to him, the plea of personal bona fide need has been shattered. Learned counsel in response read out the following part of the cross-examination: -

"There are 14 tenants in the rented premises building with different areas I do not know the build-up used are of the rented premises building. It is correct that as per Exb. A/8, five industries were approved for merger with applicant. present, National Industrial Park and Furniture Pakistan have been merged with applicant and remaining are under process. It is correct that I have not mentioned the shifting of office of M/s. Furniture Pakistan at Rented Premises Building. I do not know whether the office of said Furniture Pakistan still exists at its previous place. The office of the National Industrial Park was situated at FTC Building. There were about 35 employees of National Industrial Park Company. It is correct that as per Nolice Exb./13, the office premises of NIP was to be vacated on 31.01.2022. It is correct that office of NIP was vacated on 31.01.2022. The employees of the NIP have been given place at second floor of the rented premises. It is correct that as per Exb.A/6, the applicant issued termination notice to Opponent on 20.12.2021 and opponent was required to vacate the premises in three months. It is correct that said three months expired on 20.03.2022 It is correct applicant vacated the office from FTC first and then issued notice to the opponent. It is correct that I have not produced documentary proof of handing over and taking over of the FTC premises. It correct that NIP office at FTC was consisting of an area of about 6112 square feet. It is correct that area of the office of the Gizri Corporation is about 1391 sq. ft. it is correct that area total got to be vacated from Gizri Corporation and Petroleum Packages is about 2300 sq. ft. and whereas the previous office was situated on 6112 square feet. It is correct Exb.A/14 does not show the area under occupation of the tenants mentioned therein. It is correct that applicant has not given vacation notice to other 12 tenants of the rented premises. It is incorrect to suggest that applicant wants to rent out the premises of the opponent to someone else. It is incorrect to suggest that premises of Opponent is not required for personal use of the applicant. It is correct that Exb.A/12 is not upon Letter Head of the Applicant Company. It is correct that Exb.A/12 does not show as to when the employees of NIP shifted to rented premises building. It is incorrect to suggest that strength of the NIP employees is not 35. It is incorrect to suggest that Exb. A/12 is a fake list. I do not know number of other buildings belonging to the Applicant. There is no any other property/office of NIP. It is incorrect to suggest that applicant filed this case on mala fide."

1. I have examined the cross-examination reproduced above and I disagree with the plea taken by the learned counsel for the Petitioner. The statement of the Respondent No.1/ landlord has gone unrebutted; therefore, his personal need stands established. It is settled principle of law that once the landlord steps into the witness box and the plea of personal need is unrebutted, the ejectment application must be allowed under Section 15 of the SRPO. The following judgements advance the said proposition. The respective judgments and their relevant parts are reproduced below:-

· Jehangir Rustom Kakalia v. State Bank of Pakistan5

"Rule laid down in the cases mentioned above is that on the issue of personal need, assertion or claim on oath by landlord if consistent with his averments in his application and not shaken in cross-examination, or disproved in rebuttal is sufficient to prove that need is bona fide."

· Wasim Ahmad Adenwalla v. Shaikh Karim Riaz6

"3. Leave was granted to consider the contention that the plea of personal requirement was not bona fide as a flat was available in the same premises which A the respondent did not occupy. The learned counsel for the appellant contended that the respondent is residing in a bugalow in Defence Housing Authority and that it is not imaginable that he would shift in a small house in a dingy and congested locality. He further contended that during the pendency of the case a portion of the house, which was an independent apartment, fell vacant, but the respondent did not occupy it and rented it out to the tenant. On the basis of these facts it is contended that the respondent's need is neither genuine nor bona fide. So far the first contention is concerned the learned counsel for the respondent stated that the respondent is residing in a rented house with his son in the Defence Housing Authority. The contention of the learned counsel for the appellant therefore does not hold water because firstly, the respondent is not residing in his own house, but is residing with his son who has rented out a house in that area, and secondly, in these circumstances if a landlord chooses to reside in his own house which may be in a locality which is much inferior and congested than the place where he is residing on rent, it cannot be termed as mala fide. It is the choice of the landlord to choose the house or the place where he wants to reside." (Emphasis added)

· Rabia Jamal (Supra)

"22. On the basis of the above decisions of the Supreme Court of Pakistan, it is apparent that once the landlord has adduced evidence by stating that they require the Said Tenement for their personal use in good faith, thereafter the burden shifts on the tenant to show either that the landlord did not require the Said Tenement for her personal use in good faith or that the Said Tenement could not be used by the landlord for the purpose as indicated in the Application under clause (vii) of Subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. However, while raising such a contention it is not open to the tenant to allege mala fide on the part of the landlord by adducing evidence to state that the landlord had alternative premises or for that matter that the landlord had alternative premises that were more suitable for the needs of the landlord. This right to choose from amongst a host of properties that are available to a landlord as to which of those properties the landlord requires for their personal use vests solely with the landlord to the exclusion of all others." (Emphasis added)

· Shakeel Ahmed (Supra)

"6. For seeking eviction of a tenant from the rented shop, the only requirement of law is the proof of his bona fide need by the landlord, which stands discharged the moment he appears in the witness box and makes such statement on oath or in the form of an affidavit-in-evidence as prescribed by law, if it remains unshattered in cross-examination and un-rebutted in the evidence adduced by the opposite party."

1. The Judgment relied upon by the learned counsel for the Respondent No.1 do not advance his case. It is relevant to mention that both the judgment has been passed by the learned Single Judge of this Court and are distinguishable for the following reasons: -

· In the case of Muhammad Younus (supra) the tenement in question was not an industrial plot and the landlord in the case was unable to show how the premises can be utilized for an industrial purpose, which was the plea taken by the landlord in the rent application.

· In the case of Naveed Merchant (supra) it was held that the landlord who is already in occupation of another plot was to show that he requires additional space on the ground of insufficiency. Whilst I concur with the dicta laid down in the said judgement, the facts of the present petition reflect that the Respondent No.1 has established his need for additional space. The said need was specifically stated in the rent application and Affidavit in Evidence. The said plea remained unshattered during cross-examination.

1. The argument of learned counsel for the Petitioner that the Respondent No.1 has several other properties in which the employees can be accommodated, does not find favour with me. It is the discretion of the landlord/ owner to choose the property he wishes to use and in that respect the tenant cannot dictate how and in what manner the owner should utilize his property.

2. Any adjudication on Section 15 (2) (vii) would be deficient without referring to the accountability mechanism provided for under Section 15-A of the SRPO. The same is reproduced below: -

3[("15-A"] 4[ Where the land-lord, who has obtained the possession of a building under section 14 or premises under clause (vii) of section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession¡__(i) he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained. (ii) The tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly."]

1. The provision reproduced above was introduced by the legislature through the Sindh Ordinance No. II of 1980 on January 21, 1980, to ensure that ejectment proceedings are not abused and due protection is given to the tenant in cases where the landlord/owner has misused the provisions of the Ordinance. An embargo of one year has been placed on the landlord in case the landlord wishes to rent out the property to another tenant. The protection given, which is also available to the present Petitioner, has been expounded in the following judgments, relevant parts of the same are reproduced: -

a) Mst. Zubeda through her son and General Attorney v. Muhammad Nadir.7

2025 Y L R 2124

[Sindh]

Before Adnan-ul-Karim Memon, J

Mst. Yasmeen---Applicant

Versus

The State---Respondent

Criminal Bail Application No. 1477 of 2024, decided on 23rd July, 2024.

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

----S. 497---Constitution of Pakistan, Art. 189---Control of Narcotic Substances Act (XXV of 1997) [as amended by the Control of Narcotic Substances (Amendment) Act, 2022], S. 9-C---Female offender---Possession of 560 grams of heroin---Post arrest bail, grant of---Previous involvement in narcotic cases as a ground for refusal of bail---Scope---Lesser punishment of sentence to be considered---Failure of police to record or take photograph at the time of search of the accused---Non-adherence to the obiter dicta laid down by Supreme Court---In a case where the accused is either a minor under the age of sixteen years, or woman, or a sick or inform person, even in a non-bailable offences of non-prohibitory clause, bail is to be granted or refused in the same manner as in offences of non-prohibitory clause of S. 497(1), Cr.P.C.---Guilt or innocence of the accused is yet to be determined by the Trial Court---Prosecution had not placed any material to establish that the accused was a previous convict, mere involvement in same and similar offences in the past could not be a ground to refuse bail as the case could be decided on merit, thus, past record could not be cited as precedent to refuse bail---Supreme Court precedents directed to record or take photographs at the time of search of the accused when search, seizure or arrest was made as the law permits the use of modern devices or techniques but the police failed and neglected to adhere the dicta laid down by the Supreme Court, which is a constitutional command under Art. 189 of the Constitution, thus, whether the accused was arrested with shopper bag containing 560 grams heroin required deeper appreciation---Bail application was allowed, in circumstances.

Mst. Kinat Bibi v. The State 2022 SCMR 609 Ateebur Rehman v. The State 2016 SCMR 1424; Ayaz Khan and another v. the State 2020 SCMR 350; Mst. Ghazala v. The State 2023 SCMR 887 and Sahib Ullah v. State through A.G Khyber Pakhtunkhwa 2022 SCMR 1806 rel.

(b) Administration of justice---

----Every case is to be decided on its facts and circumstances.

Deputy Director ANF Karachi v. Syed Abdul Qayum 2011 SCMR 14 rel.

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

----S. 497---Mere heinousness of offences is no ground to reject bail plea---Basic concept of bail is not to curtail the person's liberty unless proven otherwise.

Khawar Kayani v. The State PLD 2022 SC 551; Tahira Batool v. State PLD 2022 SC 764 and Justice Khurshid Anwar Bhinder v. Federation of Pakistan PlD 2010 SC 483 rel.

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

----S. 497(2)---Bail---Pre-requisite for grant of bail---Essential prerequisite for the grant of bail under S. 497(2), Cr.P.C., is that the court must be satisfied based on the material placed on record that there are reasonable grounds to believe that the accused is not guilty of an offence punishable with death or imprisonment for life---Condition of this clause is that sufficient grounds exist for further inquiry into the guilt of the accused which would mean that question should be such that it has nexus with the result of the case and can show or tend to show that the accused was not guilty of the offence with which he is charged---Grant or rejection of bail is a discretionary relief but such discretion should be exercised fairly and judicially---Word discretion when applied to court means sound discretion judiciously guided by law to lessen the hardship of the people---Bail is not to be refused as punishment.

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

----S. 497---Bail, meaning of---In principle bail does not mean acquittal of the accused but only change of custody from police to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced.

Haji Muhammad Nazir v. The State 2008 SCMR 807 rel.

Ahmed Hussain Jokhio for Applicant.

Ms. Seema Zaidi, APG along with Investigating Officer Rabnawaz and Sub-Inspector Talib Hussain of PS Memon Goth Karachi for the State.

Date of hearing: 23rd July, 2024.

Order

Adnan-ul-Karim Memon, J.---Through this bail application under Section 497 Cr.P.C., the applicant Mst. Yasmeen has sought admission to post-arrest bail in FIR No. 194/2024, registered under Section 9 C of CNS Amended Act of 2022 at Police Station Memon Goth Karachi.

1. The earlier bail plea of the applicant has been declined by the learned Additional District and Sessions Judge IV /Special Judge CNS Malir Karachi vide order dated 11.06.2024 in Criminal Bail Application No.2610/2024 on the premise that the quantity of 560 grams of heroin had been recovered from the possession of applicant/accused which falls under section 9(c) of CNS Amended Act, 2022, thus, the offense with which the applicant is charged is falling within the prohibitory clause. Besides the accused is a habitual offender.

2. It is inter-alia contended that the applicant is innocent and has falsely been implicated in this case, he next contended that the place of the incident is a thickly populated area but no independent private person is cited as mashir, which is a clear violation of Section 103 Cr. P.C. makes the case highly doubtful. In support of his contention upon the cases of Ateebur Rehman v. The State 2016 SCMR 1424, Muhammad Yousuf v. The State 2023 PCr.LJ Note 37 and Mst. Fahmida v. The State 1997 SCMR 947 and argued that mere registration criminal cases is no ground to refuse bail. He has further argued that if the recovered narcotic weighed along with polythene bag if weighed might have come to certain grounds are less then date, in that eventuality the case of the applicant falls within the ambit of Section 9(b) of the CNS amended Act 2022 and falls within the ambit of Section 497(2) Cr.P.C. He has further argued that the degree of punishment under Section 9(c) of the CNS Act, increases with the quantity of narcotics recovered, that the proviso to Section 9 (c) entails that only when the quantity of narcotic exceeds 10 KG, then the punishment could be enhanced. He lastly prayed for allowing the bail application.

3. Learned APG has opposed the application on the premise that the applicant is involved in narcotic cases as such she is not entitled to the concession of post-arrest bail. She prayed for the dismissal of the bail application.

4. I have heard learned counsel for the parties and perused the material available on record.

5. The accusation against the applicant is that she was found in possession of 560 grams of Heroin, the questions are whether in such circumstances the accused being a lady is entitled to a concession of post-arrest bail in terms of Section 497(1) Cr. P.C. and whether the applicant can be saddled with possession and transporting the narcotics in terms of Section 6/9 C of CNS Act 2022.

6. Prima facie these questions needs to be taken care of by the trial Court as the Supreme Court in the case of Zahid Sarfarz Gill v. The State 2024 SCMR 934 has held that the police and members of the Anti-Narcotic Force failed to record or photograph at the time of search of the accused when search, seizure or arrest is made, as the law permits the use of modern device or techniques, however in the present case the police has failed to apply the test so directed by the Supreme Court therefore in all cases about Narcotics, this modern device is required to be used in future cases without fail in terms of the ratio of the decision of the Supreme Court in the case of Zahid Sarfaraz Gill.

7. To appreciate the first proposition so put forward, it is the undeniable legal position that under the first proviso to Section 497(1) Cr.P.C., grant of bail is a rule and refusal an exception, as held in the case of Tahira Batool v. State (PLD 2022 SC 764), so far as the lady accused is concerned. It is now well-settled that in a case where the accused is either a minor under the age of sixteen years, or woman, or a sick or infirm person, even in a non-bailable offense of prohibitory clause, in the same manner as bail is granted or refused in offenses of non-prohibitory clause of Section 497(1) Cr.P.C. In Tahira Batool's case, the Supreme Court granted bail to the accused lady for an offense punishable under Section 395 P.P.C, under the 1st Proviso to Section 497(1) Cr.P.C., however, in the present case the applicant has been charged with an offense under Section 9 C of the CNS Act of 2022, in the given circumstances whether the maximum punishment of 14 years or alternative would be awarded or not is also a point of discussion.

8. According to the case of the prosecution, 560 grams of Heroin was recovered from the applicant, not only because the quantity of 60 grams exceeds the upper limit of 500 grams to bring the case within the prohibition contained in section 497(1) Cr.P.C. The Supreme Court in such circumstances granted post-arrest bail to the lady accused, keeping in view the (II) Proviso of Section 497 Cr.P.C. in the case of Mst. Kainat Bibi v. The State (2022 SCMR 609). The Supreme Court also in the case of Ateebur Rehman v. The State (2016 SCMR 1424), which involved the recovery of 1014 grams of heroin, and Ayaz Khan and another v. The State (2020 SCMR 350), which involved the recovery of 1100 grams of heroin, granted bail in both cases. In the present case, the guilt or innocence of the applicants is yet to be determined by the trial Court. The prosecution has not placed any material to establish that the applicant is a previous convict, mere involved in the same and similar offenses in the past cannot be a ground to refuse bail as this case can be decided on merit, therefore past record cannot be cited as precedent to refuse bail on this point.

9. Apart from the above, it revealed from the record that the aforesaid narcotics were recovered from the applicant through common place though stated to be a deserted place but the Supreme Court in similar circumstances has held in the case of Zahid Sarfaraz Gill supra that though Section 25 of the Narcotics Act exclude the applicability Section 103 Cr.P.C which requires two or more respectable inhabitants of the locality to be associated when search is made, however Supreme Court emphasized that police failed to record or photograph when search, seizure or arrest is made in terms of Article 164 of the Qanoon-e-Shahadat 1984 which was prepared in this case, therefore, on this ground also case of the applicant requires further probe.

10. No doubt, the offense of trafficking the narcotic is a heinous one and affects society at large but it is a settled principle of law that every case is to be decided on its facts and circumstances. Again, in the case of Deputy Director ANF Karachi v. Syed Abdul Qayum, reported in 2001 SCMR 14, which was later, the Supreme Court ruled that despite the provisions contained in Section 51 of the Control of Narcotic Substances Act, 1997, the Sessions Court and High Court have the power to grant bail. For the sake of convenience and ready reference, the relevant part of the judgment is given below:-

"Moreover, this Court in the case of Gul Zaman v. The State reported in 1999 SCMR 1271, has elaborately dealt with the application of sections 496, 497, and 498 Cr.P.C. in view of the bar contained in section 51 of the Act and it has been unanimously held that despite the provisions contained in section 51 of the Act, the Sessions Court and High Court have the power to grant bail."

1. It is a well-settled principle of law that mere heinousness of offense is no ground to reject the bail plea. The basic concept of bail is that no innocent person's liberty is to be curtailed until and unless proven otherwise.

2025 Y L R 2136

[Sindh (Hyderabad Bench)]

Before Abdul Hamid Bhurgri, J

Muhammad Hashim---Applicant

Versus

Farooq Domki Baloch and 4 others---Respondents

Criminal Miscellaneous Appeals No. S-49 of 2025, decided on 31st January, 2025.

Criminal Procedure Code (V of 1898)---

----S. 497(5)---Penal Code (XLV of 1860), Ss. 457, 337-A(i), 504 & 506(2)---Lurking house-trespass or house-breaking by night in order to commit offence, causing shajjah-i-khafifah, intentional insult with intent to provoke breach of the peace, criminal intimidation---Application for cancellation of bail, dismissal of---Record reflected that after registration of case the accused moved an application for grant of pre-arrest bail before the Trial Court, who granted ad-interim pre-arrest bail to them and later on their interim pre-arrest bail was confirmed vide order dated 30.12.2024, which was impugned---Record reflected that the pre-arrest bail was granted to respondents/accused on the grounds that FIR was delayed about seventeen days without plausible explanation and all Sections applied in the FIR were bailable except Ss.506/2 & 457, P.P.C., which would be determined at the time of trial---Further, the alleged offences cited in the FIR did not fall within the prohibitory clause and grant of bail in such like cases was a rule; and that there was a dispute over children quarrel between the parties, as disclosed in the memo. of FIR as well as Trial Court's order---Hence, the case of the accused/respondents fell within the ambit of S.497(2),Cr.P.C---Principles for granting bail and those for cancellation of bail were altogether different---Strong and cogent reasons were required for recalling of bail granting order---Applicant/complainant was unable to demonstrate principles governing the cancellation of bail---Grounds for cancellation of bail as agitated by complainant could only be thrashed out at the time of recording evidence of the parties---Since the trial was yet to begin thus no fruitful result would come out to recall the pre-arrest bail order---Application for cancellation of bail was dismissed in limine, in circumstances.

Muhammad Azhar v. Dilawar 2009 SCMR 1202 rel.

Abdul Mueed Shaikh for Applicant/Complainant.

Order

Abdul Hamid Bhurgri, J.--- The applicant / complainant through the captioned Criminal Miscellaneous Application under Section 497 (5) Cr.P.C seeks cancellation of bail granted to respondents 1 to 4 by learned Additional Sessions Judge, Hala in Cr. Bail Application No.1053 of 2024 (Re-Farooque Domki Baloch and another v. The State), arising out of Crime No.145 of 2024 registered at Police Station Saeedabad, under Sections 506/2, 457, 337-A(i), 504 P.P.C vide order dated 30.12.2024.

1. The facts of the case are already stated in the memo. of this application, therefore, there is no need to reproduce the same for the sake of brevity.

2. Learned Counsel for the applicant contends that the respondents / accused after granting bail by the trial Court on are misusing the concession of bail by issuing threats to the applicant / complainant. He further submits that the respondents / accused were nominated in the promptly lodged FIR with specific roles. He next submits that the respondents / accused are criminal type of persons hence, any untoward incident may occurred, however, the learned trial Court by ignoring the same and without considering the record has granted bail to the accused. He prays that bail of the accused may be recalled.

3. I have heard the learned counsel for the applicant and have gone through the material available on record.

2025 Y L R 2167

[Sindh]

Before Jan Ali Junejo, J

REhan and another---Applicants

Versus

The State---Respondent

Criminal Bail Applications Nos. 1651 of 2024 and 370 of 2025, decided on 4th March, 2025.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 397 & 34---Qatl-i-amd, robbery, common intention---Bail, cancellation of---Allegation against the applicants pertained to a violent robbery that resulted in the loss of life of the cousin of complainant by firing---Record indicated that separate identification parades were conducted before the Judicial Magistrate, during which the complainant correctly identified both applicants as the actual culprits---Additionally, it had been established that one of the applicants was identified through CCTV footage and geo-fencing analysis---When said applicant learnt that Investigating Officer planned to apprehend him, he fled to his hometown---However, said accused was later arrested in a separate case registered under S.23(1)(a) of the Sindh Arms Act, 2013---Consequently, the Investigating Officer took him into custody in connection with the present case as well---Other applicant, who had been evading authorities, was apprehended in two distinct cases---Record indicated that the charges in the case fell under Ss.302 (murder) and 397 (armed robbery),P.P.C, both of which entailed severe punishments, such as the death penalty or life imprisonment---Severity of those legal consequences, combined with the substantial evidence implicating the accused, significantly diminished the likelihood of bail being granted in this matter---Prosecution had presented substantial incriminating material to establish a prima facie case against the applicants---Complainant's statement, the identification proceedings and other circumstantial evidence strongly linked the applicants to the present offence---At this stage, the objections raised concerning the identification parade and the delay in lodging the FIR did not appear to be of such significance as to warrant the granting of bail---Upon thorough examination of the case's factual matrix and evidentiary record, it was evident that the applicants were prima facie linked to the present offenses---Evidence presented sufficiently implicated them in offences falling under the restrictions of S.497(1),Cr.P.C., which barred bail in such instances---Bail petition was dismissed, in circumstances.

2012 PCr.LJ 1022; 2012 YLR 1603; PLD 2012 Sindh 218 and 2024 SCMR 28 ref.

Hilal Khattak v. The State and another 2023 SCMR 1182 rel.

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

----S. 497---Bail order---Observations of the Court---Scope---Observations made in thebail order are solely for the purpose of deciding bail application and should not influence the merits of the case during the trial proceedings.

Arshad Ahmed Metlo for Applicant (in Criminal Bail Application No. 1651 of 2024).

Barrister Ahmer Jamil Khan along with Muhammad Arif Khan for Applicant (in Criminal Bail Application No. 370 of 2025).

Muhammad Munsif Jan and Muhammad Imran for the Complainant.

Muhammad Raza, Deputy Prosecutor General for the State.

Date of hearing: 4th March, 2025.

Order

Jan Ali Junejo, J.---The present Criminal Bail Applications have been filed on behalf of the Applicants/Accused, who are seeking post-arrest bail in connection with a case stemming from FIR No.172 of 2022, registered at P.S. Gabol Town, Karachi, under Sections 302/397/34, P.P.C. The Applicants/Accused initially approached the Court of Sessions by filing Bail Applications Nos.373 of 2023 (Applicant Faizan) and 801 of 2023 (Applicant Rehan Khan), which were subsequently dismissed by the learned Trial Court vide Order dated: 08-03-2023 and Order dated: 04-03-2024.

1. The facts relevant to the present criminal bail application are as follows:

"On 17/10/22 at 1815 hours, Muhammad Ahmed and his cousin, Muhammad Hanif, were returning from Meezan Bank, Nagan Chowrangi, after withdrawing 10 lakh rupees (intended for family use). While near Shaheen Bakery, Sector 15B, Buffer Zone, two unidentified men (30-35 years old, dark complexion, Urdu-speaking, on an unregistered motorcycle) attempted to rob them. The assailants fired a shot, kicked their motorcycle (No.KFX-5686), causing a crash. Hanif sustained fatal head and jaw fractures, leading to his death at Abbasi Shaheed Hospital. During the attack, 350,000 rupees (scattered during the fall) were stolen, while 650,000 rupees (retained in a cloth) were recovered".

1. The learned counsel for the Applicant Rehan Khan has argued that the applicant/accused has been falsely implicated in the present case with no connection to the alleged incident, as the police have acted with mala fide intention and ulterior motives. He further contends that no recovery has been made from the applicant, and the alleged murder weapon has been falsely planted. He asserts that the co-accused has already been granted bail, making the applicant entitled to the same benefit on grounds of consistency. He maintains that the FIR was lodged with an unexplained delay, casting serious doubt on the prosecution's case. Additionally, he highlights that the applicant's name and description are absent from the FIR, further weakening the allegations. He submits that the applicant has been wrongly involved in a blind murder case to create an impression of efficiency by the police. He argues that the co-accused allegedly fired in the air, demonstrating no intent to kill, while the FIR suggests the deceased succumbed to road injuries, making Section 302 P.P.C inapplicable. He further states that the applicant, a real estate businessman, has been falsely framed due to his refusal to pay a bribe. He contends that statements made in police custody hold no legal value under Articles 38 and 39 of Qanun-e-Shahadat. Moreover, he asserts that the identification parade is tainted as the IO improperly exposed the applicant's face to the complainant beforehand. He also argues that the complainant failed to describe the currency notes allegedly involved, adding to the doubts, which should benefit the accused. Lastly, he pleads that the applicant has been in custody for one and a half years, causing financial distress to his family, warranting bail on humanitarian grounds. Lastly, the learned counsel prayed for grant of bail to the Applicant.

2. The learned counsel for the Applicant Faizan Habib has argued that the Applicant/Accused is a law-abiding citizen with no prior criminal record and has been falsely implicated in the present case out of malice and ulterior motives. He further contends that the Applicant was not named in the FIR, no overt act has been attributed to him, nor was any description or huliya mentioned at any stage of the prosecution's case. He submits that there are glaring contradictions in the FIR and the prosecution's story, as the complainant initially failed to recall the looks and description of the alleged culprits, yet, after four months, suddenly claimed to recognize the accused, rendering the identification parade highly doubtful. He states that while the complainant alleged that two Urdu-speaking individuals committed the offense, the charge sheet implicates four non-Urdu-speaking persons, making this a case of further inquiry. He asserts that the Applicant has been implicated by the SHO due to personal grudge and greed and has no connection to the alleged crime except for having a bank account at the same branch. He maintains that mere heinousness of an offense is insufficient to deny bail and that the fundamental right to a fair trial under Articles 4, 9, and 10A of the Constitution must be upheld. He emphasizes that no incriminating recovery has been made from the Applicant, who has been languishing in jail since 11/2/2023 without any witness examination. He further contends that there is no risk of absconding or tampering with evidence, and prolonged incarceration without trial amounts to punishment before conviction. He submits that until proven guilty, the Applicant must be presumed innocent, and any doubt must benefit the accused. He concludes that in light of these circumstances, the Applicant is entitled to the concession of bail as per the established principle that "bail, not jail" is the norm. Lastly the learned counsel has prayed for grant of bail to the Applicant. The learned counsel has relied upon the case laws reported in 1.2012 PCr.LJ 1022; 2.2012 YLR 1603; 3.PLD 2012 Sindh 218; and 4.2024 SCMR 28.

3. The learned counsel for the Complainant has argued that bail must be denied as the prosecution has established a prima facie case under Sections 302 (murder) and 397 (armed robbery) of the P.P.C, backed by irrefutable evidence including CCTV footage, geofencing data, and CDR records placing the Applicants at the crime scene (Meezan Bank, North Karachi), coupled with the recovery of police uniforms, counterfeit IDs, weapons-related documents, and a motorcycle from Faizan Habib's residence. He further contends that the Complainant's identification of the Applicants during court-supervised identification parades-conducted in the presence of a Judicial Magistrate-leaves no doubt about their involvement, while Faizan's deliberate shifting to Balakot to evade arrest underscores his high risk of absconding. He argues that the severity of the charges, punishable by death or life imprisonment, and the Applicants' potential to intimidate witnesses or endanger public safety-given their use of police disguises to commit crimes-render bail unjustifiable. Additionally, he asserts that procedural objections, such as delays in FIR registration, hold no merit at this stage, as the prosecution has met the threshold of demonstrating guilt. He concludes that societal interest in preventing grave crimes, ensuring trial integrity, and deterring fugitive behavior necessitates the refusal of bail to keep the Applicants in custody until trial. Lastly, the learned counsel for the Complainant prayed for dismissal of bail of the Applicants.

4. The learned Deputy Prosecutor General opposes the bail application, advancing the following contra arguments: He argues that the Applicants are accused of committing heinous offenses under Sections 302, 397, and 34 of the Pakistan Penal Code, which involve murder and robbery with grievous consequences, warranting strict judicial scrutiny. He further contends that substantial evidence, including witness statements and forensic findings, establishes their involvement in the crime, making their bail unjustifiable. He asserts that the identification of the Applicants was conducted lawfully and supports their connection to the offense. He maintains that the brutal nature of the act, resulting in the victim's death, demonstrates a clear common intention to commit robbery and violence. He emphasizes that granting bail poses a serious risk of absconding, tampering with evidence, or influencing witnesses, which could compromise the trial process. He submits that mere delay in trial proceedings does not justify bail, especially in a case of such grave nature. He highlights that in similar cases, courts have consistently denied bail to prevent setting a precedent that undermines the justice system. Lastly, he prays for the dismissal of the bail applications of both Applicants in the interest of justice.

5. I have given due consideration to the arguments advanced by the learned counsel for the applicant/accused as well as the learned Deputy Prosecutor General for the State. Furthermore, I have meticulously examined the material available on record with utmost care and judicial prudence. An examination of the case record reveals that the allegations against the Applicants pertain to a violent robbery that resulted in the loss of life. The record further indicates that separate identification parades were conducted before the learned Judicial Magistrate, during which the Complainant correctly identified both Applicants as the actual culprits. Additionally, it has been established that Applicant Faizan Habib was identified through CCTV footage and geofencing analysis. When Faizan Habib learned that Investigating Officer PI Muhammad Ashraf Dahri planned to apprehend him, he fled to his hometown, Balakot. However, he was later arrested in a separate case registered under Section 23(1)(a) of the Sindh Arms Act, 2013. Consequently, the Investigating Officer took him into custody in connection with the present case as well. It is also crucial to emphasize that Applicant Rehan Khan, who had been evading authorities, was apprehended in two distinct cases:

2025 Y L R 2177

[Sindh]

Before Amjad Ali Sahito, J

Bashir Akbar Ali---Petitioner

Versus

The State and others---Respondents

Criminal Revision Application No. 25 of 2023, decided on 7th April, 2025.

Illegal Dispossession Act (XI of 2005)---

----Ss. 3 & 4---Illegal dispossession---Applicant installed a petrol pump after getting license from the respondents but they were dispossessed from the premises by the respondents illegally who began dismantling the petrol pump accessories---Applicant filed a complaint but the Trial Court dismissed the same---Validity---In the present matter, through a lease agreement dated May 4, 2001, the commercial plot was transferred to the complainant/applicant by the then Management of Pakistan State Oil Company (P.S.O.)---Complainant/ applicant lawfully took possession and managed the premises as a bona fide and legally recognized dealer in accordance with the terms of a license agreement---Complainant was engaged in the business of selling petroleum products and had also installed a Compressed Natural Gas (CNG) station on the subject plot---Applicant remained in full compliance with the terms and conditions of the license agreement and did not commit any breach thereof---However, the access to the petrol pump from the main entrance roads was obstructed by law enforcement agencies, thereby preventing customers from reaching the premises---As a result, the complainant filed a constitutional petition---Upon adjudication, High Court was pleased to direct the removal of all obstructions and blockages on the road, further directing the relevant authorities that the applicant's petrol pump shall not be removed without due processes of law---Applicant, after complying with all requisite legal formalities and obtaining the necessary approval from the Sindh Building Control Authority, subsequently executed a license agreement with Pakistan State Oil Company---Pursuant to the said agreement, the applicant lawfully installed a Compressed Natural Gas (CNG) filling station on a portion of the subject plot, making a substantial investment of Rs. 60.0 million for its installation---During the course of operating the petrol pump and CNG station, the respondents exerted undue oral pressure on the applicant, coercing the termination of the agreement, vacating the premises and surrendering physical possession of the petrol pump and CNG installation---Such actions were driven by mala fide intent and dishonest motives to transfer possession to their associates---However, the applicant consistently refused to terminate the license agreement, as the business was being operated in full compliance with the terms and conditions set forth in both license agreements---Furthermore, respondents persistently created unnecessary obstacles in the lawful operation of the business and sought to interfere with the applicant's physical possession of the premises---In response, the complainant instituted constitutional petition, and upon adjudication, the petition was disposed of with directions to the applicant to file a civil suit against Pakistan State Oil Company, while the Staff Welfare Organization was specifically instructed not to take any adverse action against the applicant---On 12.10.2022, at approximately 08:00 PM, the respondents, accompanied by 20 to 30 unknown armed guards, unlawfully and forcibly attacked the petrol pump situated on the plot and illegally dispossessed the applicant and his staff from the premises---During the course of the forcible dispossession, the respondents began dismantling the petrol pump's accessories and engaged in cutting operations using welding equipment, despite being expressly informed that the petrol and diesel storage tanks contained over 1,300 liters of petrol and 7,000 liters of diesel, and that the gas storage cylinders were filled with CNG---Reckless actions of the respondents created a grave and imminent risk of a catastrophic explosion, yet they disregarded these warnings instead issued threats, demanding immediate vacation of the premises, failing which they threatened to use firearms---Fearing serious harm and potential loss of life, the applicant and his staff refrained from resisting---Consequently, the applicant was forcibly and unlawfully dispossessed of the petrol pump and CNG station, which was subsequently occupied by the respondents and concealed with cloth tents---Clause 20 of the agreement explicitly provided that in the event of any question, dispute, difference, or objection arising in connection with or related to the agreement including the rights, duties, and liabilities of either party, such matters shall be referred for arbitration to the company's General Manager Reseller or his nominee, or to such other officer of the company as might be designated---Decision rendered by the designated arbitrator shall be final and binding on both parties---Similarly, Art.17 of the CNG License Agreement contained an identical arbitration clause, stipulating that any dispute shall be resolved through arbitration---Additionally, it had been clearly stipulated that arbitration proceedings shall be governed by the Arbitration Act, 1940, or any subsequent amendment thereof, as applicable at the relevant time---Despite those explicit contractual provisions mandating arbitration, the respondents willfully disregarded the law, acted in excess of their authority and unilaterally took the law into their own hands---Instead of adhering to due legal process, respondents assumed the roles of both judge and jury in their own cause and forcibly dispossessed the applicant/complainant from the fuel station in a clear violation of legal principles and due process---Furthermore, the fundamental right to property, as enshrined in the Constitution, had been safeguarded to ensure that no individual was deprived of their property without legal justification and without following the proper legal procedures---Criminal miscellaneous application was allowed in circumstances and the matter was remanded to the Trial Court with the direction to rehear the respective parties and render the order afresh.

2005 CLC 1602; 2016 SCMR 2039 and 2019 PCr.LJ 1023 ref.

Niaz Ahmed and others v. Aijaz Ahmed and others PLD 2024 SC 1152; M. Ghani v. M.A. Mullick and Brothers and 3 others 1973 SCMR 90; Zulfiqar Ahmed Khan v. Station Commander, Station Headquarters, Karachi and another 2010 CLC 354 and Muhammad Javed v. Viiith Additional Sessions Judge, Hyderabad and 2 others 2018 PCr.LJ 1522 rel.

Sardar Sher Afzal Khan for Applicant.

Aamir Mansoob Qureshi for Respondents.

Gul Faraz Khattak, Assistant Attorney General for the State.

Date of hearing: 17th March, 2025.

Order

Amjad Ali Sahito, J.---The Applicant has filed the present Criminal Revision Application, challenging the order dated 26.01.2023, passed by the learned Additional District and Sessions Judge-VI, Karachi-South, in Criminal Complaint No. 2592/2022, instituted under Sections 3 and 4 of the Illegal Dispossession Act, 2005 (IDC). Through the impugned order, the learned trial court dismissed the complaint filed by the Applicant. Aggrieved by the said order, the Applicant has preferred the instant Criminal Revision Application.

1. The instant application was presented in the office on 04.02.2023 and same was fixed before the court on 08.02.2023. The notices were issued to the respondents, meanwhile they were directed no coercive action shall be taken against Applicant by the PSO officials or by police. In pursuance of the notice the parawise comments were filed through Additional Attorney General same were taken on the record.

2. The Instant Direct Complaint (IDC) was filed by the Applicant/Complainant ("Applicant/ Complainant") under Sections 3 and 4 of the IDC before the District and Sessions Judge, Karachi South. In the said complaint, the Applicant alleged that in May 2001, Pakistan State Oil (PSO) granted him a license to operate a diesel and petrol retail business. Subsequently, the Applicant was granted an additional license agreement permitting the establishment of a Compressed Natural Gas (CNG) station. The Applicant duly obtained all requisite approvals from the relevant government authorities and installed the CNG facility at the same premises.

3. On 12.10.2022, at approximately 08:00 PM, the Applicant, along with his employees, servants, and official staff, was present at the petrol pump and CNG station, engaged in routine business operations. At that time, Respondents Nos. 1 to 7, accompanied by 20 to 30 unidentified armed guards, unlawfully and forcibly trespassed onto the petrol pump premises situated at the aforementioned plot. The Respondents illegally dispossessed the Applicant and his employees/servants from the premises and, during the course of dispossession, began dismantling the petrol pump accessories. The unlawful attack and forcible dispossession were immediately reported to Police Helpline 15 and were witnessed by several employees and servants.

The submissions on behalf of the applicant/ complainant.

1. Sardar Sher Afzal, learned counsel for the Applicant argued that the Ministry of Works Rehabilitation and Works Division, Government of Pakistan allocated a portion of the premises located at Tugluq House Compound for the establishment of a Petrol Pump by the Staff Welfare Organization through an allotment dated February 20, 1963. He submits that the allotment was made for 30 years, and in November 1973, the premises were leased for the same duration. In compliance with the order dated September 8, 2023, the rights to the premises were transferred to PSO, which entered into an agreement with the Applicant on May 4, 2001, for the sale and marketing of oil products on the premises.

2. Learned counsel argued that the Applicant also obtained a license for the filling and distribution of CNG dated January 25, 2003, and received all necessary approvals and NOCs; that the Applicant subsequently installed an additional CNG unit worth over Rs.60 million; that during the operation of the CNG and petroleum business, some PSO officials threatened to revoke both license agreements without notice. In response, the Applicant filed C.P. No. D-3415/2020, which was later withdrawn and with observation of this Court that no adverse action could be taken against the Petitioner (Applicant/complainant) without following the law, and this order was communicated to all PSO and Welfare Organization staff.

3. He further contended that during course of lawful operation and during validity of both agreements i.e. CNG and petrol products the Respondents were serving in PSO department as well as Staff Welfare Organization made a plan to dispossess the Applicant/Complainant forcibly, illegally and without adopting due course of law at the behest of a politician, thus, in order to implement their plan Respondents on 22nd October, 2022 at about 8:00 p.m. with their armed persons attacked and they forcibly and illegally dispossessed the Applicant; that during course of such attack the Applicant and his son including staff were dispossessed while all articles containing diesel and patrol were taken in their custody along with CNG installation thereby Applicant has filed complaint under sections 3 /4 of Illegal Dispossession Act before District and Sessions Judge, Karachi South which was assigned to the Court of VIth Additional Sessions Judge, South Karachi and vide order dated 26.1.2023, the same was dismissed without taking cognizance which has been impugned.

4. He submits that observation in the impugned order was only to the effect that as per police enquiry report, the Officials of Respondent's have dispossessed the Applicant by exercising their rights under clause 12(b) of agreement but did not consider clause 20 of the said agreement which provides that if any question or objections took place between the Applicant and Respondents, the matter shall be referred for arbitration as well as Article 17 of the CNG license agreement provides similar clause for arbitration upon any dispute inspite of facts that both agreements were validated by the Respondents which is also evident from their own letter dated 28.7.2021 for further period up to 30.3.2026 which is undisputed and un-rebutted and the Applicant was operating such business as lawful by virtue of both agreements and was lawful occupier as provided under section 2(c) of Illegal Dispossession Act, 2005 thereby no illegality or irregularity has ever been committed and the Applicant has forcibly been dispossessed/occupied on the day of incident i.e. 12th October, 2022.

5. Lastly prayed that the impugned order may be set aside and learned trial court may be directed to take the cognizance of offence and physical possession of the business premises i.e. petrol pump are liable to be restored as interim relief to save continuously losses as provided under section 7 of Illegal Dispossession Act. In support of his contention learned counsel for the Applicant produced USB and states that the video is available in the USB, which can confirm the PSO officials forcefully, occupied the PSO fuel station. He has also produced Photographs and has relied upon the following case laws:

i. 2005 CLC 1602

ii. 2016 SCMR 2039

iii. 2019 PCr.LJ 1023

The submission on behalf of PSO/Respondents.

1. Mr. Aamir Mansoob Qureshi, entered appearance on behalf of Respondents/PSO and argued the maintainability of the instant criminal revision application on the ground that Staff Welfare Organization (SWO) an attached Department of Establishment division Government of Pakistan, is responsible to look after the welfare needs of Federal Government Employees; that SWO leased out the said plot to ESSO (Present PSO) for period of 30 years from 15.03.1963 to 14.03.1993. Thereafter, two more lease agreements from 1993 to 2003 and from 2003 to 2013 were signed with PSO by the local SWO officers of Karachi which were later on declared as illegal/void ab-initio by Ministry of Law and Justice. Accordingly, SWO issued vacation notice to PSO and stopped receiving the rent of petrol pump.

2. He further argued that the complainant/applicant peacefully handed over the vacant physical possession of the retail outlet through its authorized representatives Mr. Muhammad Shahzad Magsi, Deputy Secretary (Administration) Establishment Division and Mr. Abdul Jabbar Director General Staff (WO) in terms of inventory. In support of his contention he has produced handing over/taking over letter dated 12.10.2022.

3. In rebuttal learned counsel for the complainant/ Applicant submits that the Officials Respondents have taken plea that physical possession was willingly handed over by the complainant/applicant which have no substance while such incident provides that neither any consent was given by the Applicant nor document was signed by the complainant/Applicant or his son with Official Respondents and officials Respondent have occupied illegally and forcibly dispossessed the Applicant from his lawful business; that such incident was also witnessed by the numbers' shopkeepers as well as employee/servants of the Applicant as well as Applicant himself along with his son were available at spot at the time of their forcibly dispossession. He further submits that concerned Enquiry Officer did not bother to record statement of any neighborhood nor has taken statement of any employee/servant either of Applicant, such report was disputed before learned trial Court by way of filing application under section 5 of Illegal Dispossession Act but that application was not considered by the learned trial Court.

4. It has been contended by Learned Counsel for the respondents that SWO has nothing to do with dealership and license agreement between PSO and complainant/ applicant that the complainant/applicant made investment over the plot without verifying the fact that the land is the property of Federation of Pakistan. Lastly prayed for dismissal of the instant application.

5. Learned Assistant Attorney General supported the arguments advance by learned counsel for Respondents/PSO and supported the impugned order and prayed that the instant application may be dismissed.

6. I have heard the learned counsel for the respective parties and have gone through the material available on the record.

7. Upon examination of the record, it is evident that Respondents Nos. 1 to 5 are employees and executives of Pakistan State Oil Company and are currently posted at Pakistan State Oil (P.S.O.) House, Khayaban-e-Iqbal, Clifton, Karachi. In this capacity, they are discharging their official duties on behalf of Pakistan State Oil Company. Furthermore, Respondents Nos. 6 and 7 hold the positions of Executive Officers within the Staff Welfare Organization and are serving under the Ministry of Works, carrying out their official responsibilities at the Staff Welfare Department, situated at Block No. 66/A, Pakistan Secretariat, Karachi.

8. The commercial plot, identified as Survey No. 50, measuring 1584 square yards and located at Court Road, adjacent to the Sindh Secretariat Building, Karachi, was acquired by Pakistan State Oil Company Ltd. pursuant to a lease deed executed in the year 1963. The said plot remained under the management, control, and ownership of Pakistan State Oil Company Ltd. and was designated for the establishment of an oil and petrol pump for the sale of diesel and petrol.

9. Subsequently, through a lease agreement dated May 4, 2001, the aforementioned commercial plot was transferred to the complainant by the then-management of Pakistan State Oil Company (P.S.O.). The complainant lawfully took possession and managed the premises as a bona fide and legally recognized dealer in accordance with the terms of a license agreement.

10. The Applicant was engaged in the business of selling petroleum products and had also installed a Compressed Natural Gas (CNG) station on the subject plot. The Applicant remained in full compliance with the terms and conditions of the license agreement and did not commit any breach thereof. However, the access to the petrol pump from the main entrance roads was obstructed by law enforcement agencies, thereby preventing customers from reaching the premises.

11. As a result, the complainant filed Constitutional Petition No. D-3372/2010 before this Court. Upon adjudication, this Court was pleased to direct the removal of all obstructions and blockages on the road, further directing the relevant authorities that the Applicant's petrol pump shall not be removed without due processes of law.

12. The Applicant, after complying with all requisite legal formalities and obtaining the necessary approval from the Sindh Building Control Authority (SBCA), subsequently executed a license agreement with Pakistan State Oil Company. Pursuant to the said agreement, the Applicant lawfully installed a Compressed Natural Gas (CNG) filling station on a portion of the subject plot, making a substantial investment of Rs. 60.0 million for its installation.

13. During the course of operating the petrol pump and CNG station, the Respondents exerted undue oral pressure on the Applicant, coercing the termination of the agreement, vacating the premises, and surrendering physical possession of the petrol pump and CNG installation. It is evident that such actions were driven by mala fide intent and dishonest motives to transfer possession to their associates. However, the Applicant consistently refused to terminate the license agreement, as the business was being operated in full compliance with the terms and conditions set forth in both license agreements.

14. Furthermore, Respondents Nos. 1 to 7 persistently created unnecessary obstacles in the lawful operation of the business and sought to interfere with the Applicant's physical possession of the premises. In response, the complainant instituted Constitutional Petition No. D-3415/2020 before this Honourable Court. Upon adjudication, the petition was disposed of with directions to the Applicant to file a civil suit against Pakistan State Oil Company, while the Staff Welfare Organization was specifically instructed not to take any adverse action against the Applicant.

15. That on 12.10.2022, at approximately 08:00 PM, the Applicant, along with his employees, servants, and official staff, was present at the petrol pump and CNG station, conducting routine business operations. At that time, Respondents Nos. 1 to 7, accompanied by 20 to 30 unknown armed guards, unlawfully and forcibly attacked the petrol pump situated on the aforementioned plot and illegally dispossessed the Applicant and his staff from the premises.

16. During the course of the forcible dispossession, the Respondents began dismantling the petrol pump's accessories and engaged in cutting operations using welding equipment, despite being expressly informed that the petrol and diesel storage tanks contained over 1,300 litters of petrol and 7,000 litters of diesel, and that the gas storage cylinders were filled with CNG. The reckless actions of the Respondents created a grave and imminent risk of a catastrophic explosion, yet they disregarded these warnings and instead issued threats, demanding immediate vacation of the premises, failing which they threatened to use firearms.

17. Fearing serious harm and potential loss of life, the Applicant and his staff refrained from resisting. Consequently, the Applicant was forcibly and unlawfully dispossessed of the petrol pump and CNG station, which was subsequently occupied by the Respondents and concealed with cloth tents.

18. The unlawful attack and forcible dispossession were immediately reported to police helpline 15, and the incident was witnessed by multiple employees and servants present at the business premises, including but not limited to: (1) Abdul Samad, (2) Adan, (3) Ahmed, (4) Zeeshan, along with more than 15 other employees who were present at the time of the incident.

19. Section 3 of the Illegal Dispossession Act, 2005 provides that "No one shall enter into or upon any property to dispossess, grab, control or occupy it without having any lawful authority to do so with the intention to dispossess, grab, control or occupy the property from owners or occupier of such property." Further, Section 2 (c) provides definition of "Occupier" means the person who is in lawful possession of a property. The Illegal Dispossession Act, 2005, is a special enactment promulgated to protect the lawful owners and occupiers of immovable property from illegal and forcible dispossession from the property.

Concept of Illegal Dispossession.

1. Illegal dispossession occurs when a person, without legal authority or justification, forcibly or fraudulently takes possession of land, property, or other assets from someone who has the rightful possession. The dispossession can be achieved through force, deception, intimidation, or any other unlawful means. IDA, 2005 is legislation aimed to safeguarding legitimate owners and occupants of immovable properties from being unlawfully or forcefully deprived of their possessions by illegal occupants or grabbers. This legislation specifies the category of persons who can approach the Court of competent jurisdiction for seeking relief i.e. the owner or occupier

Key Elements of Illegal Dispossession.

(a) Lawful Possession - The victim must have a legal right to possess the property, whether through ownership, lease, or other legal entitlements.

(b) Unlawful Act - The act of dispossession must be illegal, meaning it was done without due legal process.

(c) Deprivation of Possession - The lawful possessor must be deprived of their control over the property.

(d) Lack of Legal Justification - The person taking possession must not have any legal claim, title, or court order justifying their actions.

1. With regard to the plea raised by the Respondents, it has been contended that, by virtue of their official duties, they were legally obligated to vacate the subject plot from the alleged illegal occupation of the dealer/complainant through due legal process. It has further been asserted that the Staff Welfare Organization (SWO) issued notices to Pakistan State Oil (PSO) and the complainant for the vacation of the plot with the intention to rent it out.

2. The learned trial Court, while dismissing the instant complaint, observed that the complainant was merely a licensee and, therefore, had no proprietary rights, title, or interest in or over the property. The Court further held that, under the dealership agreement, the complainant was granted only a temporary assignment for the operation of a filling/service station for the purpose of retailing the company's products.

3. It is pertinent to mention that Clause 20 of the said agreement explicitly provides that in the event of any question, dispute, difference, or objection arising in connection with or related to the agreement including the rights, duties, and liabilities of either party such matters shall be referred for arbitration to the company's General Manager Reseller or his nominee, or to such other officer of the company as may be designated. The decision rendered by the designated arbitrator shall be final and binding on both parties. Furthermore, the arbitration proceedings are to be conducted in Karachi, and the courts at Karachi shall have exclusive jurisdiction over all matters related to the agreement. Similarly, Article 17 of the CNG License Agreement contains an identical arbitration clause, stipulating that any dispute shall be resolved through arbitration.

4. Additionally, it has been clearly stipulated that arbitration proceedings shall be governed by the Arbitration Act, 1940, or any subsequent amendment thereof, as applicable at the relevant time. Despite these explicit contractual provisions mandating arbitration, the Respondents willfully disregarded the law, acted in excess of their authority, and unilaterally took the law into their own hands. Instead of adhering to due legal process, they assumed the roles of both judge and jury in their own cause and forcibly dispossessed the Applicant/Complainant from the fuel station in a clear violation of legal principles and due process.

5. In the case of Niaz Ahmed and others v. Aijaz Ahmed and others (PLD 2024 SC 1152) Supreme Court has held that;

"11…..No one can be allowed to take law in his own hands and unlawfully dispossess an owner or lawful occupier of an immovable property and then seek to thwart the criminal proceeding initiated against him under the Illegal Dispossession Act, 2005 on the pretext that civil litigation on the issue is pending adjudication between the parties in a court of law. Therefore, irrespective of any civil litigation that may be pending in ant court, where an offence as described in the Illegal Dispossession Act, 2005 has been committed the proceeding under the said act can be initiated as the same would be maintainable in law."

In another case of M. Ghani v. M. A. Mullick and Brothers and 3 others (1973 SCMR 90), the Apex Court has held that;

"…….. Until and unless the tenant was ejected in due process of law be had a right to be on the premises, and he could not be evicted by the Assistant Registrar. The action of the sealing of the premises and the handing over of the premise to the petitioner having been declared to be without lawful authority the consequential order for putting the premises in the possession of the tenant respondent was only logical."

In another case of Zulfiqar Ahmed Khan v. Station Commander, Station Headquarters, Karachi and another (2010 CLC 354), it is held that;

"No party can be left without any remedy and any person letting property cannot be evicted therefrom without due process of law as the Constitution of Islamic Republic of Pakistan guarantees not only rights of people in respect of properties but also for their livelihood and the facts and circumstances of this case are such which warrant interference of this Court, particularly in view of principles laid down in Waris Meah's case, reported as PLD 1957 SC (Pak) 157."

In the case of Muhammad Javed v. VIIIth Additional Sessions Judge, Hyderabad and 2 others (2018 PCr.LJ 1522), it is held that;

1. It is well settled law that no person may be evicted from a property save in accordance with the due process of the law.

33. There is authority to suggest that even a trespasser could not be dispossessed of land without due process of law.

1. It was held in the case of Raza Muhammad and others v. The State, reported as PLD 1965 (W.P.) Karachi 637, that a trespasser was entitled to defend his possession even against the rightful owner of the property."

2025 Y L R 2199

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito, J

Orangzeb---Applicant

Versus

The STate---Respondent

Criminal Bail Application No. S-548 of 2024, decided on 18th November, 2024.

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

----S. 497---Penal Code (XLV of 1860), Ss. 302(b), 201 & 34---Qatl-i-amd, causing disappearance of evidence of an offence or giving false information to screen an offender, common intention---Bail, refusal of---Allegations against the applicant-accused were that he along with others committed murder of his wife---Admittedly, the applicant was husband of deceased, who was aged about 17/18 years---Per contents of FIR, it appeared that quarrel took place between the applicant and deceased, as such, she left the house of applicant and started residing in the house of her parents---However, later on due to intervention she returned---Thereafter wife of applicant was found dead in the house of applicant and the applicant informed the family members of deceased---However, before reaching of complainant party, bath was given to the deceased---Sister of deceased intended to see her deceased sister but she was restrained by the sister of applicant---Thereafter funeral ceremonies had taken place---However, when sister of deceased visited the room of the deceased, she noticed blood stains on the walls and other parts, she also showed such blood staining to her husband who took pictures from his mobile phone---On the third day, sister of deceased also found dopatta of deceased from the place where she was given bath, which was also blood stained---Then the matter was reported to the police on 06.07.2023 and produced dopatta of deceased and said for consultation with his family members for registration of FIR and the police initiated proceedings---However, on knowing the fact of killing of deceased by her husband applicant with the help of his housemates and concealment of the offence, present FIR was lodged---Alleged by applicant that the FIR was lodged with a delay of six days, from the face of FIR, no mala fide appeared on the part of complainant---If the complainant had intended to falsely implicate the applicant, it would be reasonable to expect that the FIR would have been lodged instantaneously after the incident---However, after the funeral and burial of the deceased, it was only when the complainant party discovered blood stains on the walls and other parts of the room, finding the blood-stained dopatta of the deceased, photographs and collecting evidence etc. and then the complainant lodged FIR---Delay had been adequately explained in the FIR and prima facie indicated effort to find out the truth rather than any intention to falsely implicate the applicant in a heinous crime---Applicant had failed to make out the case for further inquiry---Bail application was dismissed, in circumstances.

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

----S.497---Bail---Tentative assessment---Scope---Observations made in the bail order are tentative in nature and would not influence the Trial Court, while deciding the case on merits.

Ghulamullah Chang for Applicant.

Ms. Rameshan Oad, Assistant Prosecutor General Sindh along with I.O. Subhan Pathan PS Market for the State.

Nemo for the Complainant.

Date of hearing: 18th November, 2024.

Order

Amjad Ali Sahito, J.---Through instant bail application, the applicant/accused namely, Orangzeb seeks post-arrest bail in Crime No.99/2023, registered at Police Station Market Hyderabad for the offence under sections 302, 201 and 34 P.P.C. Earlier the bail plea of the applicant/accused was declined by the learned MCTC-II/Additional Sessions Judge-IV, Hyderabad vide order dated 01.04.2024.

1. The details of the FIR are included in the bail application and its attached copy, so there is no need to restate them here.

2. Learned counsel for the applicant contends that the applicant/accused is innocent and has falsely been implicated in this case; that the FIR is delayed by six days; that there is no eye-witness of the incident and the applicant has been implicated on the basis of assumptions and presumptions; that in fact the deceased committed suicide and on coming to know, the applicant and his family members took her to the hospital but she had already expired and was declared by the doctor; however, the complainant has implicated the applicant without having any proof even no specific role is assigned to the applicant; that as per chemical report, it is negative, DNA says that the blood analyzed was not of human blood but of the animal; that as per medical officer no fracture was found to the deceased. Learned counsel further contends that the applicant is behind the bars and no purpose would be served if he is kept in Jail for an indefinite period notwithstanding that the investigation is complete and applicant is no more required for further investigation, as such, the case of applicant requires further inquiry. He lastly prayed for grant of bail to the applicant.

3. Learned A.P.G. Sindh has opposes the grant of bail in favour of applicant by contending that the applicant is very much involved in the commission of offence, hence, he is not entitled for the concession of bail.

4. Heard and perused the record.

2025 Y L R 2210

[Sindh (Sukkur Bench)]

Before Adnan-ul-Karim Memon and Muhammad Abdur Rehman, JJ

Nadir Ali---Appellant

Versus

The State---Respondent

Special Criminal Appeal No. D-15 of 2024, decided on 30th May, 2025.

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

----S. 9(c)---Possession of narcotic substances---Appreciation of evidence---Benefit of doubt---Accused not arrested from the spot---Prosecution case was that 04-kilogram charas was recovered from the possession of accused-appellant---As per record, accused on seeing the raiding party coming towards him moved away on motorcycle from the place of the incident and his black color shopping bag and black-colored wallet fell at the place of incident---Due to the availability of CNIC of accused in his wallet, he was booked under Section 9-C of the Act 1997---Complainant admitted that he did not know the appellant but his arrest was based on his CNIC by seeing his photo---However, it could not be said that the appellant was transporting the narcotic on 05.10.2021 as possession and transportation of narcotics had not been established on the record---Besides after the arrest of the appellant, his identification parade was not held which showed doubt in the prosecution case---Besides, the delay in sending samples of chars to the Chemical Examiner could not be ignored since its safe custody at Malkhana was the question which the prosecution had not answered satisfactorily by adducing reliable evidence to prove the case against the appellant and the Trial Court while passing the verdict against the appellant had ignored all the material points of the case---In the present case, the appellant was not arrested redhanded with narcotic but he subsequently joined the trial after obtaining bail and was convicted based on the recovery of his CNIC from the place of the incident with the presumption that it was he who was transporting the charas---Such presumption must be substantiated with cogent evidence that he was dealing with such narcotic previously and was indulged in such sort of business, which chain was missing in the present case and created doubt as he was not seen by the prosecution while riding on the motorcycle on the day of the incident as the Police Officers deposed that they did not know each other previously---Circumstances established that the prosecution had failed to prove the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence---Appeal was allowed, accordingly.

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

----Ss. 9(c) & 25---Criminal Procedure Code (V of 1898), S. 103---Possession of narcotic substance---Appreciation of evidence---Benefit of doubt---Non-association of private witnesses at the time of recovery of contraband---Consequential---Prosecution case was that 04-kilogram charas was recovered from the possession of accused-appellant---As per the prosecution's case, incident had occurred in a busy area i.e. main gate bus stand, where many private persons were available, but no efforts were made by the Investigating Officer of the crime to arrange any witness of the locality, who might have seen the appellant in any manner linked with the narcotic dropped from his motorcycle and police recovered the subject drug---No doubt application of S.103, Cr.P.C., had been excluded under S.25 of Control of Narcotics Substances Act, 1997, yet the necessity of employing a private person as mashir could not be overlooked for the reason that the place of incident was a busy place and people were present and it was a day time---Investigating Officer admitted in evidence that it was a busy place and people were available---Thus, there was a deliberate avoidance of obtaining an independent mashir on the free ride of S.25 of the Act 1997---Complainant had not given any explanation as to why he did not request any person to become a witness to the recovery of drug from the place of the incident---Prosecution for protection of S.25 of the Act 1997 had to give justified reasons otherwise, noncompliance of S.103, Cr.P.C., would be fatal---In the case at hand, the failure of the prosecution to gather otherwise available independent witnesses was more than enough to create serious doubts in their case against the appellant---Circumstances established that the prosecution had failed to prove the case against the appellant beyond a reasonable doubt by producing reliable, trustworthy, and confidence-inspiring evidence---Appeal was allowed, accordingly.

Haroon Rasheed v. The State 2020 PCr.LJ Note 172 rel.

(c) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance created reasonable doubt in a prudent mind about the guilt of the 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.

Shabbir Ali Bozdar for Appellant.

Muhammad Faruq Ali Jatoi, Special Prosecutor ANF for the State.

Date of hearing: 14th May, 2024.

Order

Adnan-ul-Karim Memon, J.---Appellant Nadir Ali has assailed the Judgment passed by the learned Additional Sessions Judge-III//MCTC-II/ Special Court CNS Sukkur in special case No.152 of 2021 (Re-State v. Nadir Ali and others). whereby he has convicted the appellant for the offense under section 9 (c) CNS, Act 1997 and sentenced him to suffer Rigorous Imprisonment for (07) years and (06) months and also to pay a fine of Rs. 35,000/- (Thirty-five thousand) and in default of payment of fine, he shall also suffer simple imprisonment for six months and 15 days.

1. The facts of the prosecution case as per FIR are that on 05.10.2021 at about 12:20 hours, the raiding party of PS ANF, Sukkur headed by Inspector/SHO Muhammad Saqlain, found the accused namely Nadir Ali son of Bashir Ahmed Rind, in possession of black shopping bag, lying on the petrol tank of his motorcycle, near main Gate Bus Stand Shikarpur Road Sukkur, who on seeing the raiding party managed to flee away by his motorcycle whereas his black color shopping bag and black color wallet fell there. The ralding party after recovery found the black shopping bag to be stuffed with 47 tokens in Momi Envelopes wrapped with yellow insulation tap weighing 500 grams of charas and 04 single slab packets weighing three and a half kilogram charas, as the total weight of charas became 4 kilograms. The wallet was found to contain cash of Rs. 500/- and his CNIC, in the presence of mashirs namely HC Rehmatullah and PC Nadir Ali, under a memo of recovery. Hence, the Inspector lodged an instant FIR Police after the usual Investigation submitted a charge sheet before the Court of Learned Judicial Magistrate-II, Sukkur, showing the accused Nadir Ali as an absconder, the prosecution examined PW-01 Inspector Muhammad Saqlain Chaudhary at Ex. 04, he produced entries Nos. 3 to 5 regarding departure and arrival on one page, memo of recovery, FIR, letter dated 06.10.2021 addressed to Chemical Examiner Rohri, report of Chemical Examiner Rohri, letter dated 06.10.2021 addressed to NADRA, report of NADRA dated 12.10.2021, letter addressed to SSP Ghotki and entry No. 534 of Register No. 19 at Ex. 04/A to Ex. 04/1 respectively; PW-02 PC Nadir Khan Brohi at Ex. 05, he produced his departure as well as arrival entry on one page and road certificate at Ex. 05/A and Ex. 05/B respectively. It is noted that when the appellant came to know about the subject case, he obtained Pre-arrest bail and joined the trial on 06.06.2022. The trial court after supplying him necessary documents at Ex. 09, framed a formal charge against him at Ex. 10 and recorded his plea at Ex. 10/A, wherein; he did not plead his guilt and claimed for trial. The appellant also stated that he had been falsely implicated in the case at the instance of his relative Ajmal son of Ayoob who was posted as Inspector in ANF due to having a matrimonial dispute with him.

2. Prosecution, re-examined PW-01 Inspector Muhammad Saqlain Chaudhary at Ex. 11; PW-02 PC Nadir Khan Brohi at Ex. 12; PW-03 Inspector Basheer Ahmed Pathan at Ex.13, he produced his report at Ex. 13/A. The learned SPP for ANF closed the side at Ex.

3. The statement of the appellant as required under section 342 Cr.P.C. was recorded at Ex. 15, in which, he denied all the allegations of prosecution witnesses leveled against him and pleaded his innocence. The appellant, however; neither ventured into to witness bax to adhere to his innocence on cath nor led defense evidence and also claimed that the entire case property viz. Charas, cash amount, and wallet have been foisted upon him except his CNIC which was stolen by SIP Muhammad Ajmal Rind from his house with the association of his relatives, which may be restored to him. He also claimed that the Report of the Chemical Examiner as well as other documents produced by the prosecution witnesses were also managed documents.

4. Learned counsel for the appellant contended that the appellant had been falsely implicated in this case and the ANF Police had planted a fake case upon him. Contends that the narcotic was not recovered from the appellant and they allegedly found it from one shopper bag and based on his CNIC he has been booked; even otherwise the alleged incident took place in broad daylight in a busy thoroughfare but none from the public was associated in this case to depose against him. Contends that the prosecution could not prove safe custody of the allegedly recovered narcotics and its safe transmission to the Police Station and then to the Laboratory for chemical analysis, there, the alleged portion sent to the Laboratory for chemical analysis cannot be used against the appellant to sustain his conviction. Lastly contends that the reasons given by the learned trial Court to sustain the conviction of the appellant are speculative and artificial, therefore, the impugned judgment may be set at naught.

5. The learned Special Prosecutor, after having gone through the available record stated that the charge has been fully established against the appellant as the prosecution has produced overwhelming incriminating evidence against him.

6. We have heard both sides and have also gone through the material available on record.

7. PW-01 Inspector Muhammad Saqlain Chaudhary has deposed that on 05.10.2021 he was posted at PS ANF Sukkur and on the same day at about 12:05 p.m. he was available at PS, where the spy informer came. He received spy information through superior officers that drug seller Nadir Ali was selling drugs near Main Gate Bus Stand Shikarpur Road Sukkur and it was also informed that if immediate action was taken then the arrest of the accused and recovery of narcotics was possible. After that, a raiding party was constituted under his supervision consisting of HC Rehmatullah, PC Nadir Khan, PC Muhammad Ahmed, PC Babar Hussain, PC Toufeeq-ul-Hassan, PC Mohsin Ali, PC Driver Masood Hussain, HC Driver Musassir Imran, HC Driver Mudassir Masood and spy informer. They duly armed and left the police station in Govt. Double Cabin Vehicle No. GP-3152 and HIACE No. GP-5602 under Roznamcha entry No. 03 at 12:15 p.m. and when they were about to reach at pointed place where saw one person sitting on a red color motorcycle without a number plate and having a shopping bag of black color on the petrol tank of the motorcycle. The spy informer told them that the said person was the drug seller Nadir Ali. Accused Nadir Ali on seeing the raiding party coming towards him, moved away on the motorcycle from the place of the incident and his black color shopping bag and black-colored wallet fell at the place of the incident. They chased the accused Nadir Ali except for PC Babar Hussain who remained at the place of the incident but the accused succeeded in running away from the place of the incident by taking advantage of the narrow streets. They searched for the accused but could not succeed in finding him. Thereafter they returned to the place of the Incident and asked some persons to act as mashirs but they refused, therefore, he appointed HC Rehmatullah and PC Nadir as mashirs and checked the recovered black color wallet and black color shopping bag of the accused. They recovered the original CNIC of the accused showing the particulars as Nadir Ali son of Basheer Ahmed resident Chowk Mari Post Office and Tehsil Ubauro, District Ghotki, and cash of Rs. 500/- In the denomination of Rs. 100/- each from black color wallet. They opened the black color shopping bag and found 47 stapled tokens packed in MOMI Envelopes and 04 packets in MOMI Envelopes wrapped with yellow solution tape. They opened 47 tokens, and found charas in sald tokens; they again stapled the said tokens and on weighing all tokens became 500 grams. They checked four packets by cutting and found a single slab of charas in each packet and weighed all four packets wherein the weight of 03 packets became 01/01 Kilo gram and the weight of one packet became 500 grams as such the total weight of four packets and 47 tokens became 04 kilograms of charas. Thereafter, 47 tokens were put into a MOMI Envelope and packed in a white color cloth parcel put the seal of M.S., and parcel No. 1 for chemical analysis. He put serial numbers 01 to 04 on recovered four packets, and from each packet, 10 grams of charas for chemical examination was taken and packed in four MOMI and Khaki Envelopes and also put serial numbers 1 to 4 on four Khaki envelopes and the sald envelopes were put into the white color cloth bag/parcel and put the seal of M.S and prepared parcel No. 2. He also put 04 packets of remaining charas in another white color cloth bag/parcel and sealed with the seal of M.S and prepared parcel No. 3. Thereafter, he prepared mashirnama of recovery at spot and took the case property in possession. He read over the contents of the mashinama to his mashirs who verified the same and put their signatures on it as well as on the parcels. Thereafter, they returned to PS ANF Sukkur along with the case property and registered FIR bearing No. 17/2021 under section 9-C CNS Act 1997 against accused Nadir Ali. He wrote the FIR Number on all three parcels. He was also in-charge of Malkhana, hence he deposited the case property in Malkhana under entry No. 534 in register No. 19 of PS. Thereafter, he recorded the Statements under section 161 Cr.P.C of PWs namely HC Rehmatullah and PC Nadir Khan at PS. On 06.10.2021 parcels Nos. 1 and 2 were sent to the chemical laboratory Rohri through PC Nadir Khan along with relevant documents who submitted the same on the same date and handed over the receiving documents. On 06.10.2021 he wrote a letter to NADRA for the record of absconding accused Nadir Ali and also wrote a letter to SSP Ghotki for collecting the criminal record of accused Nadir All. He received the NADRA record and report fromthe chemical examiner as "Positive". He tried to arrest the absconding accused but could not succeed. On 20.10.2021 he submitted the interim challan and on 28.10.2021 submitted the challan under section 512 Cr.P.C. before the court having jurisdiction. He in support of his contention produced entries Nos. 3 to 5 regarding departure and arrival on one page, memo of recovery, FIR, letter dated 06.10.2021 addressed to Chemical Examiner Rohri, report of Chemical Examiner Rohrl, letter dated 06.10.2021 addressed to NADRA, report of NADRA dated 12.10.2021, letter addressed to SSP Ghotki and entry No. 534 of Register No.19 at Ex.04/A to Ex.04/1 respectively.

8. PW-02 PC Nadir Khan Brohi recorded his evidence at Ex. 12, wherein he supported the version of PW-01 and he in support of his contention also produced departure as well as arrival entry on one page and road certificate at Ex. 05/A and Ex. 05/B respectively.

9. PW-03 Inspector Basheer Ahmed has deposed that on 30.06.2022 he was posted as SHO at PS ANF Sukkur and on the same day he submitted the subsequent report of accused Nadir Ali in Court.

10. The prime question is whether the black color shopping bag and black color wallet allegedly fell at the place of the incident belonged to the appellant as he was not arrested from the place of the incident but due to the availability of his CNIC in his wallet, he was booked under Section 9-C of CNS Act 1997, of PS ANF Sukkur. The complainant admitted that he did not know the appellant but he was arrested based on his CNIC by seeing his photo. This is the position of the case, it cannot be said that the appellant was transporting the narcotic on 05.10.2021 as possession and transportation of narcotics has not been established on the record. As the appellant has been arrested based on his CNIC, thus Sections 6 and 9-C of CNS Act 1997, as charged. Besides after the arrest of the appellant, his identification parade was not held which shows doubt in the prosecution case. Brasdes the delay in sending samples of chars to the chemical examiner cannot ignored since its safe custody at Malkhana was questioned which the prosecution had not answered satisfactorily by adducing reliable evidence to prove the case against the appellant and the learned trial Court while passing the verdict against the appellant has ignored all the material points of the case.

11. In the case of Narcotics Substance, the prosecution has to establish the fact that the narcotic drugs were secured from the possession of the accused then the Court is required to presume that the accused is gullity unless the accused proves that he was not in possession of such drugs. Therefore, the prosecution must establish that the accused has some direct relationship with the narcotic drugs or has otherwise dealt with them. If the prosecution proves the detention of the article or physical custody of it then the burden of proving that the accused was not knowingly in possession of the article is upon him. The practical difficulty of the prosecution to prave something within the exclusive knowledge of the accused must have made the Legislature think that if the onus is placed on the prosecution the object of the Act would be frustrated. It does not mean that the word 'Possess' appearing in section 6 of the Act does not connote conscious possession. Knowledge is an essential ingredient of the offense as the word "possess" connotes in the content of section 6 possession with knowledge. The Legislature could not have intended to mere physical custody without knowledge of an offense, therefore, the possession must be conscious. Nevertheless, it is a different thing to say that the prosecution should prove that the accused was knowingly in possession. It seems to us that by section 29, the prosecution has only to show by evidence that the accused has dealt with the narcotic substance has physical custody of it, or is directly concerned with it unless the accused proves by a preponderance of probability that he did not knowingly or consciously possess the article. Without such proof, the accused will be held gulity by section 29, Act 1997. However, in the present case, the appellant was not arrested redhanded with narcotics but subsequently joined the trial after obtaining bail and was convicted based on the recovery of his CNIC from the place of the incident with the presumption that it was he who was transporting the charas this presumption must be substantiated with cogent evidence that he was dealing the such Narcotics previousty and was is indulged Insuch sort of business, which chain is missing in the present case and creates doubt as he was not seen by the prosecution while riding on the motorcycle on the day of the Incident as the police officers deposed that they did not know each other previously.

2025 Y L R 2221

[Sindh]

Before Jan Ali Junejo, J

Ishaque Thaheem and others---Applicants

Versus

The DIG Police Hyderabad and others---Respondents

Criminal Misc. Application No. 1074 of 2024, decided on 6th March, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A & 22-A---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Petitioner assailed order passed by Ex-officio Justice of Peace and sought its quashing---Ex-Officio Justice of Peace issued directions under Ss.22-A & B, Cr.P.C., to record the statements of injured persons and witnesses---Such directions were neither arbitrary nor extraneous but were intended to ensure a comprehensive investigation and uncover the truth---Applicants' claim that this amounted to a second version of the incident was untenable---Police must investigate all perspectives, even those that emerged belatedly---Reinvestigation of a criminal case was not barred, and police authorities were legally permitted to file a supplementary challan even after submitting the final report under S.173, Cr.P.C.---However, that was subject to the condition that the Trial Court had not yet disposed of the case on merits, barring certain exceptions---Final challan submitted on 04.09.2024 did not render the investigation immutable---Inclusion of the applicants as accused, based on subsequent statements, was neither unlawful nor tainted with malice but represented a valid exercise of investigative discretion---Applicants' plea for quashing the proceedings at this stage was premature---Since the Trial Court had already taken cognizance of the case, the appropriate forum to assess the merits of the evidence was during trial---Under S.561-A,Cr.P.C., High Court could not summarily terminate proceedings merely because the applicants disputed their involvement---Law required such objections to be addressed during trial, where the credibility of the allegations could be tested through evidence and cross-examination---Furthermore, the applicants had failed to establish any jurisdictional defect or violation of natural justice in the impugned order---Trial Court provided cogent reasons for directing the recording of statements, ensuring adherence to procedural fairness---Investigation Officer's actions, being in compliance with statutory mandates, did not warrant judicial interference---It was evident from the record that the applicants had not demonstrated any special or exceptional circumstances justifying the quashing of the pending proceedings---Criminal miscellaneous application was dismissed, in circumstances.

Sughran Bibi v. The State PLD 2018 SC 595; Raja Khursheed Ahmed v. Muhammad Bilal and others 2014 SCMR 474 and Muhammad Farooq v. Ahmed Jawaz Jagirani and others PLD 2016 SC 55 rel.

Muhammad Daud Narejo for Applicants.

Mumtaz Ali Shah, Assistant Prosecutor General for Respondents Nos. 1 to 3.

Irfan Gul for Respondent No. 4.

Date of hearing: 6th March, 2025.

Judgment

Jan Ali Junejo, J.---The present Criminal Misc. Application has been filed by the Applicants (accused), challenging the Order dated 24.08.2024 (here-in-after referred to as the Impugned Order) passed by the Court of learned Sessions Judge, Sujawal in Criminal Misc. Application No.272 /2024 (Muhammad Soomar v. SSP Sujawal and others), whereby the application under Section 22-A, Cr.P.C. filed on behalf of the Respondent No.4 was disposed of with directions to the I.O. to record the statements of the witnesses/injured produced by the Respondent No.4.

1. The case arises from a land demarcation dispute, where Respondent No.4 filed a Criminal Misc. Application (No.272/2024) under Section 22-A Cr.P.C. The dispute had already led to FC Suit No.139/2021, in which the civil court ordered demarcation of a katcha road by Mukhtiarkar and Tapedar with police presence. However, on 13.08.2024, while demarcation was underway without police, the proposed accused-seven individuals armed with lathis, an iron rod, a hatchet, and a pistol-allegedly attacked the applicant and his brother Allah Dino, causing severe injuries and issuing death threats. The injured obtained a police treatment letter and were treated at Civil Hospital, Jati, with a final medical certificate issued on 19.08.2024. Based on their complaint, FIR No.114/2024 was registered under Sections 324, 337-A(i), F(i), 114, 506-2, 147, 148, 149, and 504 P.P.C. Later, Muhammad Soomar, one of the accused, filed Crl. Misc. Application No.272/2024 before the District and Sessions Judge, Sujawal, who directed the Investigation Officer (I.O.) to record witness statements under Section 161 Cr.P.C. However, the I.O. subsequently implicated the applicants as accused, even though the court had not explicitly directed their implication, leading to claims of false accusations and misuse of legal provisions in the ongoing land dispute. Lastly, the Applicants have prayed for the following reliefs:-

a) To declare that the Impugned Order dated 24-08-2024 of learned court below is against the law natural justice, null, void and illegal having legal sanctity in the eyes of law and the same is liable to be aside being devoid of justice.

b) To declare that the applicants have illegally been shown/nominated as accused in additional Challan sheet dated 26.09.2024 by the I.O. of FIR No.114/2024 of P.S. Jati without any authority and acted arbitrary and exorbitantly by using excess and unlimited powers which is not the jurisdiction of the police and the names of the applicants in additional Challan sheet are legally required to be struck off from the Challan sheet.

c) That to quash all the proceedings against the applicants arising out of Challan sheet dated 26.09.2024.

d) To pass interim order directing the official respondents/police not to arrest the applicant until and unless the above petition is decided by this Honourable Court.

(e) To grant any other relief(s) which this Honorable Court may deem fit and proper in the facts and circumstances of the case.

1. The learned counsel for the Applicants has argued that the impugned order dated 24.08.2024 is void ab initio, legally infirm, perverse, and unsustainable, as it was passed without properly considering the facts, law, and evidence. He further contends that FIR No.114/2024 had already been registered against Muhammad Soomar and others for a cognizable offence, and the trial court failed to recognize the non-maintainability of Criminal Misc. Application No.272/2024 under Sections 22-A and 22-B Cr.P.C., which sought to introduce a second version of the same incident, contrary to settled legal principles. He asserts that the Ex-Officio Justice of Peace, despite the absence of legal grounds, wrongly directed the Investigation Officer (I.O.) to record additional statements, leading to the unjust implication of the applicants. He maintains that the final challan had already been submitted on 04.09.2024, and the subsequent challan against the applicants was unjustified, as it merely complied with the impugned order without conducting a proper investigation. He insists that under Section 173(1)(b) Cr.P.C., once an FIR is registered, no fresh FIR is required for a different version of the same incident, and any additional information should be incorporated into the ongoing investigation. He criticizes the trial court for acting in haste, without applying its judicial mind, by dismissing Criminal Misc. Application No.272/2024 while still directing the recording of statements from Muhammad Soomar and his witnesses, which he claims was contradictory and legally flawed. He submits that the impugned order is non-speaking, arbitrary, vague, and based on conjectures, violating natural justice and equity, and therefore warrants immediate setting aside. He questions why the opposing party insisted on a separate FIR, arguing that it was merely a tactic to pressure the police and falsely implicate the applicants. He concludes that the impugned order, which leads to the automatic arrest of the accused based on mere allegations, is misconceived, legally untenable, and should be declared null and void. Lastly, the learned counsel prays for allowing the Cr. Misc. Application.

2. Per contra, the learned APG vehemently opposes the Criminal Misc. Application, arguing that the impugned order dated 24.08.2024 was passed in accordance with the law and does not suffer from any legal infirmity. He contends that the Ex-Officio Justice of Peace rightly exercised jurisdiction under Sections 22-A and 22-B Cr.P.C., directing the Investigation Officer (I.O.) to record additional statements to ensure a fair and impartial investigation. He further argues that the registration of FIR No.114/2024 does not preclude the consideration of another version of the same incident, as different perspectives may emerge during the investigation, and it is the duty of the police to record all relevant information to ascertain the true facts. He submits that the trial court did not act arbitrarily but rather took into account the material placed before it and passed a reasoned order to facilitate proper investigation. He maintains that the I.O. complied with the court's directions and conducted further inquiries, which revealed that the applicants' involvement in the incident could not be ignored. He rebuts the applicants' claim that the second version amounts to an impermissible second FIR, arguing that under criminal jurisprudence, the police are not bound by the first version of an incident and must investigate all available evidence and statements to determine the actual culprits. He asserts that the applicants' plea for setting aside the impugned order is baseless, as it seeks to hamper the due process of law and prevent an unbiased investigation. He insists that the investigation officer acted in accordance with legal principles and merely fulfilled his duty to record all relevant statements under Section 161 Cr.P.C. He further submits that the petitioners have failed to point out any jurisdictional error or legal infirmity in the impugned order, making their plea misconceived and liable to be dismissed. He emphasizes that the application under Sections 22-A and 22-B Cr.P.C. was rightly entertained, as it sought a fair probe into the matter, and the applicants cannot claim immunity from investigation merely because an FIR was already lodged. He concludes that the Criminal Misc. Application lacks merit, as the applicants are seeking to frustrate the investigation process, and thus, their plea should be outrightly dismissed to allow the legal process to take its due course.

2025 Y L R 2230

[Sindh (Sukkur Bench)]

Before Ali Haider 'Ada', J

Mumtaz Jutt---Applicant

Versus

Senior Superintendent of Police Sukkur and 2 others---Respondents

Criminal Misc. Application No. S-119 of 2024, decided on 14th March, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A & 22-B---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Application of the petitioner for the registration of FIR was turned down by Ex-officio Justice of Peace---Validity---Petitioner stated that the proposed accused had felled three trees from his land---In the present case, the brother of applicant settled his dispute as reported by SHO; such fact was neither controverted by applicant nor was any ground taken in instant petition that police malafidely or in collusion with proposed accused prepared false report before Ex-officio Justice of Peace---Brother of applicant was not a witness to support the version of applicant while as per report he was owner of land who settled his dispute and even the properties of the parties were adjacent to each other with no distinct boundaries making it difficult to distinguish between them---Perusal of record showed that there was no intention for commission of any offence for the reason that guilty intention was always important ingredient of offence as provided by the maxim "actus non facit reum nisi mens sit rea" (the act is not guilty until the mind is guilty)---Petition was dismissed, in circumstances.

Munwar Alam Khan v. Qurban Ali Malano and others 2024 SCMR 985 and Jameel Ahmed Butt and another v. The State through Prosecutor General Sindh and 2 others 2014 PCr.LJ 1093 rel.

Ateeq-ur-Rehman Soomro for Applicant.

Abdul Hafeez Bandhani for proposed accused.

Syed Sardar Ali Shah Rizvi, Additional P.G for the State.

Order

Ali Haider 'Ada', J.---The applicant assails the order dated 13-02-2024, passed by learned Vth Additional Sessions Judge/Ex-Officio Justice of Peace, Sukkur, whereby his application under sections 22-A (6)(i) and 22-B Cr.P.C was turned down, in his application stated that the proposed accused had felled three trees of TARI from his land on 23-12-2023 and such incident was addressed to Police Functionaries but all in vain. The applicant approached before Justice of Peace and after dismissal prefers this Criminal Misc: application.

1. Learned counsel for the applicant contends that learned Ex-Officio Justice of Peace only on the police report dismissed his application as he reported such incident to SSP Sukkur through application and such application was also marked to Respondent No. 2, but his grievance was not redressed. He further contends that he sustained huge loss by the act of proposed accused, therefore he intends to register the FIR.

2. On the other hand learned counsel for the proposed accused submits that no any alleged incident was committed by the hands of proposed accused, actually the land of proposed accused is adjacent to the land of brother of applicant namely Manzoor Jutt and due to usurp the land area the applicant initiated frivolous litigation, further he submits that the applicant with unclean hands approached before Court, as before SSP Sukkur he showed land property of Survey No. 87 of deh Begmaji while in application under section 22-B Cr.P.C, he showed another number which is Survey No. 199 of Deh Begmaji; which revealed that he has no knowledge that from which part of land the alleged offence, if any, was committed, lastly prays for dismissal of instant application.

3. Learned Additional P.G for the State pointed out that incident which was mentioned in application under section 22-A, B Cr.P.C is unwitnessed as the names of the witnesses were not transpired to support the version of the applicant. He further submits that actually the police report is very much clear on the stance that three months ago some trees were cut down by proposed accused from their own land while the brother of the applicant namely Manzoor Jutt claimed that his trees were also cut down, so, on the intervention of Nek Mard, he received entire amount through private Faisla, as neither such Manzoor Jutt is witness in application nor he sworn any kind of affidavit in order to support the version of applicant; further pointed out that as per police report the brother of the applicant is owner of the land which is adjacent to the land of proposed accused and he settled his issue through private Faisla, but now the applicant malafidely approached with ulterior motives.

4. Heard arguments and perused the material available on record.

5. The powers of Ex-Officio Justice of Peace is actually to support the administration of criminal justice system and such power be exercised with prudent mind. In support reliance be placed in case of Munwar Alam Khan v. Qurban Ali Malano and others (2024 SCMR 985) it is held by the Apex Court that:

"Having heard the petitioner and scanned the material available on the record, we observe that there are many precedents regarding misuse of provisions of Sections 22-A and 22-B Cr.P.C, and it is the prime duty of the Court that such misuse be taken care of and application filed should not be lightly entertained and decided in mechanical manner for issuing directions to the police to lodge an FIR, conduct investigation in the matter and prosecute the accused. It is settled principle of law that each and every case is to be decided on its own peculiar facts and circumstances and inference in this regard can be drawn from the case reported as Rai Ashraf and others v Muhammad Saleem Bhatti and others (PLD 2010 SC 691), Trustees of the Port of Karachi v. Muhammad Saleem (1994 SCMR 2213) and The State v. Mushtaque Ahmed (PLD 1973 SC 418).

2025 Y L R 2329

[Sindh]

Before Muhammad Jaffer Raza, J

Mrs. Rehana Khatoon through Attorney---Petitioner

Versus

M/s Delsol the School and 3 others---Respondents

Constitution Petitions Nos. S-391 of 2023 and S-976 of 2024, decided on 23rd April, 2025.

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

----S.15---Eviction petition---Personal bona fide need of the landlord/ landlady---Scope---The petitioner (landlady) filed eviction petition against respondent No.1 under S.15 of the Sindh Rented Premises Ordinance, 1979 (SRPO, 1979), on grounds of default, nuisance, and personal bona fide need---The Rent Controller allowed the application filed by the petitioner (landlady), which was later set aside by the appellate court---The petitioner (landlady) mainly relied on her personal bona fide need and stated to have previously lived in her son's house and now sought to reside with her husband in her own house---She (landlady) refused to extend the tenancy to the respondent No.1 (tenant) and demanded vacation of the premises---Held: Once the landlady stepped into the witness box and made a statement that the tenement was required for her personal bona fide need, ejectment proceedings had to follow and it was not up to the tenant to dictate as to how and in what manner, the landlady could use the tenement in question---It was the decision of the landlady as to how she wanted to reside in the subject property even if the same was to her detriment and even if the tenement in question was inhabitable, such an argument would be immaterial --- Impugned order was set-aside , however, since the tenement in question was being used for the purposes of a school, therefore, six months' time was granted for vacation of the property in question---Constitutional petition was allowed.

M/s. Gizri Corporation Pvt. Ltd. v. Pakistan Industrial Development Corporation Pvt. Ltd. and another C.P. Nos. S-320 and 321 of 2024; Jehangir Rustom Kakalia v. State Bank of Pakistan 1992 SCMR 1296; Wasim Ahmad Adenwalla v. Shaikh Karim Riaz 1996 SCMR 1055 and C.P No. 495/2023 rel.

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

----S.15-A---Eviction petition---Personal bona fide need of the landlord/landlady, plea of---Protection available to the tenant where landlord/ landlady misuses plea of personal bona fide need---Accountability mechanism---Scope---The provision of S.15-A of the Sindh Rented Premises Ordinance, 1979 was introduced to ensure that ejectment proceedings are not abused and due protection is given to the tenant in cases where the landlord/landlady has misused the provisions of the Ordinance 1979---A restriction of one year has been placed on the owner/landlord in case he wishes to rent out the property to another tenant---This accountability mechanism perfectly balances the low evidentiary threshold placed on the owner/landlord regarding personal need.

Mst. Zubeda through her son and General Attorney v. Muhammad Nadir 1999 MLD 3011 and Mst. Dilshad Bibi v. Ramzan Ali 2006 CLC 1853 ref.

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

----S.15---Eviction petition---Maintain-ability---Landlord being represented through attorney---Effect and scope---Such petition is maintainable if instituted through a duly authorized attorney representing the landlord---Landlord/landlady cannot be non-suited on the ground of non-examining himself/herself in support of personal bona fide need and his/her representation through attorney would not be fatal to his/her case.

Mst. Jehan Ara through Attorney v. Raja Zafarullah Janjua PLD 2003 SC 277 and Ferozuddin and another v. Additional District Judge, Karachi East and another 2012 SCMR 1679 rel.

Moiz Ahmed along with Ms. Sidra Tabassum for Petitioner (in C.P. No. S-391 of 2023).

Mayhar Kazi along with Zahid Ali Sahito for Respondent No. 1 (in C.P. No. S-391 of 2023).

Mayhar Kazi for Petitioner along with Zahid Ali Sahito (in C.P No. S-976 of 2024).

Moiz Ahmed for Respondent No. 1 along with Ms. Sidra Tabassum (in C.P. No. S-976 of 2024).

Dates of hearing: 17th March and 11th, 2025.

Judgment

Muhammad Jaffer Raza, J.---By this single judgment I will dispose of the above-mentioned Constitutional Petitions. The instant petitions have been filed impugning the judgments dated 30.01.2023 and 23.07.2024, respectively. Brief facts of the petitions are as follows:

C.P. No. S-391 of 2023

1. The Petitioner in the instant petition has preferred Rent Application bearing Rent Case No.119/2020, under Section 15 of the Sindh Rented Premises Ordinance, 1979 ("SRPO, 1979") on the grounds of default, nuisance and personal bona fide need. The said rent application was allowed vide judgment dated 11.05.2022. Thereafter, the said judgment was set-aside vide impugned judgment dated 30.01.2023 in First Rent Appeal No.115/2022 and the rent application filed by the Petitioner was dismissed.

C.P. No. S-976 of 2024

1. The Respondent No.1 in the instant petition preferred Rent Application bearing Rent Case No.378/2023, under Section 14 SRPO, 1979. It was asserted that she does not own any other property and after being widowed she required the property for her personal need. The said rent application was allowed vide judgment dated 03.04.2024. Thereafter the Petitioner in the instant petition has preferred First Rent Appeal No.106/2024 which was dismissed vide impugned order dated 23.07.2024.

2. For the purpose of present judgment, both the learned counsel agree that assistance would be rendered in C.P. No.S-391/2023 and subject to the decision in the said petition, the fate of C.P. No.S-976/2024 may be adjudicated upon, if the need arises.

3. Learned counsel for the Petitioner has stated that the learned Rent Controller vide judgment dated 11.05.2022 has allowed the rent application of the Petitioner bearing Rent Case No.119/2020. Learned counsel in this regard invited my attention to the rent application preferred by the Petitioner, specifically paragraphs 9 and 10. The same are reproduced as under: -

"9. That the applicant requires the said property for her personal bona fide use as now a days she is living in the house of her son. Now the applicant wants to live in her own house along with her husband. It is also submitted that due to her personal requirement, the applicant has refused to extend the period of tenancy and demanded for vacating the premises, but the opponents have refused to vacate the premises.

10. That the opponents due to their conducts and deeds are liable to be ejected on ground of default, subletting, nuisance and also on ground of personal bona fide use."

1. Learned counsel has further stated that the averments of the Petitioner stood un-rebutted and her claim of personal bona fide need was established.

2. Conversely learned counsel for the Respondent has stated that there are conflicting findings of both the learned Courts below, and this being the case the instant petition is ought to be dismissed. He has further argued that the ground of personal bona fide need has not been made out by the learned counsel for the Petitioner as the Petitioner is an old and infirm lady and after being widowed cannot live in the tenement without the help and support of her offspring. He has further argued that the Petitioner resides with her son and her age and health do not permit her to reside in the tenement independently. He has further argued that the tenement in question is being operated as school and is not habitable. He in this respect has supported the judgment of the learned Appellate Court and stated that the rent application has rightly been dismissed. Learned counsel for the Respondent has relied upon the following judgments: -

· Iqbal Book Depot and others v. Khatib Ahmed and 6 others

· Allies Book Corporation through L.Rs. v. Sultan Ahmad and others

· Tariq Ali v. Mst. Rubina Bano and another

· Mehboqb Alam v. Miss Tehseen Shafqat Khan and others

· Faizan Shabbir v. Shaikh Abdul Wahab through Attorney and 2 others

· Abdur Rehman v. Waqar Ahmed and 2 others

1. I have heard the learned counsel for the parties and perused the record with their able assistance. Considering that there is a concurrent finding on the issue of default, with the consent of the learned counsel, I will in the instant judgment, only examine the ground of personal bona fide need. At this juncture it will be relevant to reproduce the cross examination of the Petitioner's attorney. The same is reproduced below: -

"The opponent was obliged to vacate the demised premises after 57 months of the agreement and on the ground of personal bona fide need as my mother has become widow. The applicant is residing with my young brother namely Uzair Feroze since 2011. It is correct to suggest that I have not disclosed in my affidavit-in-evidence whether the applicant was residing is my younger brother. It is incorrect to suggest that I have not disclosed the details to personal need in affidavit-in-evidence. The applicant is about 67 or 70 years old. It is her wish that she would live in her demised property. It is correct to suggest that the applicant is still receiving rent from the opponents. It is correct to suggest that we had informed the opponents that the demised premises was required to the applicant for her personal bona fide need. We had informed the opponents in writing about the personal bona fide need. It is correct to suggest that the applicant is not in a position to walk properly. It is incorrect to suggest that the applicant is ill and she has not come to the Court with her own will. It is correct to suggest that there is a school operating in the demised premises. I do not know how many rooms are there in the demised premises. I do not know whether the demised premises is a commercial property. We have been accepting the rent and extending the tenancy."

1. It is a settled principle of law that once the landlord/owner steps into the witness box and makes a statement that the tenement is required for his/her personal bona fide need, ejectment proceedings must follow. It has already been held by me in the case of M/s. Gizri Corporation Pvt. Ltd. v. Pakistan Industrial Development Corporation Pvt. Ltd. and another that it is not up to the tenant to dictate as to how and in what manner, the landlord/owner will use the tenement in question.

2. The arguments advanced by the learned counsel for the Respondent in reference to the inability of the Respondent to reside on her own is therefore without any substance. It is the decision and choice of the landlord/landlady as to how she wants to reside even if the same is to her detriment. Therefore, the argument that the tenement in question is inhabitable, is to my mind, immaterial. Further, the finding rendered by the learned Appellate Court regarding the physical inability of the Petitioner to reside in the tenement is unfounded and presumptuous. Reliance in this regard can placed in the following cases: -

· Jehangir Rustom Kakalia v. State Bank of Pakistan

"Rule laid down in the cases mentioned above is that on the issue of personal need, assertion or claim on oath by landlord if consistent with his averments in his application and not shaken in cross-examination, or disproved in rebuttal is sufficient to prove that need is bona fide."

· Wasim Ahmad Adenwalla v. Shaikh Karim Riaz

"3. Leave was granted to consider the contention that the plea of personal requirement was not bona fide as a flat was available in the same premises which A the Respondent did not occupy. The learned counsel for the appellant contended that the Respondent is residing in a bungalow in Defence Housing Authority and that it is not imaginable that he would shift in a small house in a dingy and congested locality. He further contended that during the pendency of the case a portion of the house, which was an independent apartment, fell vacant, but the Respondent did not occupy it and rented it out to the tenant. On the basis of these facts it is contended that the Respondent's need is neither genuine nor bona fide. So far the first contention is concerned the learned counsel for the Respondent stated that the Respondent is residing in a rented house with his son in the Defence Housing Authority. The contention of the learned counsel for the appellant therefore does not hold water because firstly, the Respondent is not residing in his own house, but is residing with his son who has rented out a house in that area, and secondly, in these circumstances if a landlord chooses to reside in his own house which may be in a locality which is much inferior and congested than the place where he is residing on rent, it cannot be termed as mala fide. It is the choice of the landlord to choose the house or the place where he wants to reside."

(Emphasis added)

· Rabia Jamal v. Mst. Nargis Akhtar

"22. On the basis of the above decisions of the Supreme Court of Pakistan, it is apparent that once the landlord has adduced evidence by stating that they require the Said Tenement for their personal use in good faith, thereafter the burden shifts on the tenant to show either that the landlord did not require the Said Tenement for her personal use in good faith or that the Said Tenement could not be used by the landlord for the purpose as indicated in the Application under clause (vii) of Subsection (2) of Section 15 of the Sindh Rented Premises Ordinance, 1979. However, while raising such a contention it is not open to the tenant to allege mala fide on the part of the landlord by adducing evidence to state that the landlord had alternative premises or for that matter that the landlord had alternative premises that were more suitable for the needs of the landlord. This right to choose from amongst a host of properties that are available to a landlord as to which of those properties the landlord requires for their personal use vests solely with the landlord to the exclusion of all others." (Emphasis added)

1. The requirement of personal need is further buttressed by the fact that even after the demise of her husband, the Petitioner opted to file an application under Section 14 of the SRPO and the same was allowed by the learned Rent Controller. However, the same is the subject matter of C.P. No. S-976 of 2024 and requires no further deliberation.

2. Any adjudication on Section 15(2)(vii) would be deficient without referring to the accountability mechanism provided for under Section 15-A of the SRPO. The same is reproduced below: -

3[("15-A"] 4[ Where the land-lord, who has obtained the possession of a building under section 14 or premises under clause (vii) of section 15, relets the building or premises to any person other than the previous tenant or puts it to a use other than personal use within one year of such possession__ (i) he shall be punishable with fine which shall not exceed one year's rent of the building of the premises, as the case may be, payable immediately before the possession was so obtained. (ii) The tenant who has been evicted may apply to the Controller for an order directing that he shall be restored to possession of the building or the premises, as the case may be, and the Controller shall make an order accordingly." (Emphasis added)

1. The provision reproduced above was introduced to ensure that ejectment proceedings are not abused and due protection is given to the tenant in cases where the landlord/owner has misused the provisions of the Ordinance. A restriction of one year has been placed on the owner/landlord in case the owner/landlord wishes to rent out the property to another tenant. This accountability mechanism perfectly balances the low evidentiary threshold placed on the owner/landlord regarding personal need.

2. The protection given, which is also available to the present Respondent, has been expounded in the following judgments, relevant parts of the same are reproduced: -

a) Mst. Zubeda through her son and General Attorney v. Muhammad Nadir.

"Sufficient protection has been postulated in section 15-A of the Sindh Rented Premises Ordinance, 1979 which in the event of use of premises other than personal rise not only postulates punishment for the landlord but also provide an effective mechanism for restoration of the possession to the evicted tenant before the Controller who would be entitled to exercise such authority on due consideration of the facts. Since the law provides an alternate and effective remedy to defuse the impression of the respondent, I think the apprehension is not well founded in the present state of circumstances."

b) Mst. Dilshad Bibi v. Ramzan Ali.

"Keeping in view the only restriction imposed on the personal need by way of section 15-A of the SRPO as well as authorities quoted by the petitioner and the evidence brought on record the petitioner has proved that the shop is required for personal need to be used by her son and no doubt has been created in this respect. The apprehension of the respondent that the petitioner may let out the premises after obtaining the same to other tenant is covered by section 15-A of the SRPO which remove the above apprehension."

1. The judgements relied upon by the learned counsel for the Respondent do not advance his cause for the reasons which shall be elucidated herein below.

· The dicta in the case of Iqbal Book Depot (supra) provides no assistance to the learned counsel for the Respondent and advances the case of the Petitioner. It was held by the Honourable Supreme Court as under: -

"10. We have also dilated upon the question as to whether the entire building would be needed or a part of and, we are of the view it may be left to the discretion of landlord who alone has the authority to decide this aspect of the matter and no advice or suggestion can be made binding upon him as the tenants cannot act as gratuitous advisers."

· The reliance of the learned counsel on the cases of Allies Book Corporation (supra) and Tariq Ali (supra) are misplaced. It was held in the aforementioned cases that active concealment of material fact/s may disentitle the landlord to eject the tenant. No such concealment has been highlighted by the learned counsel.

· The case of Faizan Shabbir (supra) is not relevant for the purposes of present adjudication. In the said case the ground for personal bona fide need was not taken in the rent application. The said ground was only taken during the evidence of the landlord. It has already been noted above that the ground under adjudication has been specifically pleaded by the Petitioner in the rent application, and for this reason the relevant paragraphs of the said application have been reproduced above.

2025 Y L R 2350

[Sindh]

Before Omar Sial, J

Shafqat Hussain---Applicant

Versus

The State and another---Respondents

Criminal Bail Application No. 2312 of 2021, decided on 22nd December, 2021.

Criminal Procedure Code (V of 1898) ---

----S. 497(2)---Emigration Ordinance (XVIII of 1979), Ss. 22(b) & 17(2)(b)---Human trafficking---Post-arrest bail, grant of---Further inquiry---It was an admitted position that the business was run by co-accused person and that the petitioner was an employee at that business---The Investigating Officer (I.O) had confirmed that the money taken by the business from the complainant went into the account of the business---Investigating Officer further confirmed that the petitioner was not an authorized signatory of the bank account of the business---Investigating Officer also confirmed that during investigation no evidence was found to establish that any of the money taken from the complainant by the business found its way to the petitioner in any manner, whatsoever---In view of the foregoing findings during investigation, further inquiry was required to establish the nexus of the applicant with the crime complained of---Petitioner was admitted to bail, in circumstances.

Muhammad Bilal Rashid for Applicant.

Muhammad Ahmed, Assistant Attorney General along with Gahzala Naureen I.O for the State.

Order

Omar Sial, J.---Shafqat Hussain has sought post arrest bail in crime number 156 of 2021 registered under sections 22(b) and 17(2)(b) of the Emigration Ordinance 1979 at the Anti-Human Trafficking Wing of the F.I.A. police station. Earlier, his application seeking bail was dismissed by the learned Special Judge (Central) - II at Karachi on 29-11-2021.

2025 Y L R 2356

[Sindh (Sukkur Bench)]

Before Ali Haider 'Ada', J

Muhammad Faisal---Applicant

Versus

The State---Respondent

Criminal Bail Application No. S-100 of 2025, decided on 7th April, 2025.

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

----S. 497---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic substances---Bail, grant of---Further inquiry---Allegation against the accused-petitioner was that 1120-grams charas was recovered from his possession---Upon perusal of the statements under S.161, Cr.P.C., of the recovery witnesses/mashirs, it was noted that not a single word was mentioned in their statements indicating that they visited the place of incident or that the Investigating Officer had appointed them as attesting witnesses for the preparation of the memo---Therefore, at this stage, tentatively, such variant was relevant for consideration---In the present case, the description of the place of incident indicated that it occurred in a busy-area; however, the police had failed to provide any explanation as to why independent witnesses were not cited at the time of recovery or even during the inspection of the place of incident---Noteworthy that while S.25 of the Control of Narcotic Substances Act excluded the application of S.103, Cr.P.C., the police were still required to provide cogent reasons for not involving independent witnesses---Prosecution's story was primarily based on the recovery of two slabs of charas---However, the prosecution hadfailed to specify the weight of each individual slab---While it was mentioned that the two slabs collectively weighed 1120 grams, the omission of the weight of each slab individually constituted a flaw in the case---Witnesses cited in the case were all police officials and therefore, there was no likelihood of the applicant influencing or tampering with their evidence---In such circumstances, applicant/accused had been able to make out a case for grant of bail---Bail application was allowed, in circumstances.

Zahid Sarfaraz Gill v. The State 2024 SCMR 934; Muhammad Yousif Jatoi v. The State 2025 MLD 128; Ismail v. The State 2023 MLD 942 and Ali Khan v. The State 2022 PCr.LJ 690 rel.

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

----S. 497---Bail order---Observations of the Court---Scope---Observations made in bail orders are tentative in nature and Trial Court should not be influenced by the same in any manner and should decide the case on its own merits as per evidence and the material ought to be made available before it.

Muhammad Ali Naper for Applicant.

Zulfiqar Ali Jatoi, Addl. P.G. Sindh for the State.

Date of hearing: 7th April, 2025.

Order

Ali Haider 'Ada', J.---Through this bail application, the applicant seeks post-arrest bail in Crime No. 214/2024, registered at Police Station C-Section, Sukkur, for offences punishable under Section 9(c) of the Control of Narcotic Substances Act, 1997. It is submitted that the applicant had earlier approached the learned trial court for the grant of post-arrest bail, but his application was dismissed.

1. As per FIR on 14.10.2024, at 2100 hours, the applicant was arrested by a police party headed by ASI Mumtaz Ali Pathan on being found in possession of 1120 grams Charas in one big and small shape of piece and cash of Rs.50/50- (Total Rs.100/-) near Lans-Down Bridge in presence of mashirs, namely, PC Abdul Hafeez and and PC Javed Ali Shah under memo for which he was booked in the instant case.

2. Learned counsel for the applicant submits that the applicant has been falsely implicated in this case due to political rivalry. He further contends that the alleged place of incident is a busy public area; however, the police failed to associate any private or independent person to corroborate the alleged recovery, which form serious doubt on the prosecution's version. It is further submitted that all the witnesses cited in the case are police officials and thus, there is no likelihood of the applicant to tampering with the prosecution evidence. Moreover, the challan has already been submitted before the trial court, and the applicant is no longer required for the purposes of investigation. It is, therefore, argued that the case of the applicant falls within the ambit of further inquiry as contemplated under Section 497(2) Cr.P.C.

3. On the other hand, the learned Additional Prosecutor General supports the order passed by the learned trial court and submits that there is no mala fide on the part of the police in implicating the applicant in the present case. It is further contended that charas has been recovered from the possession of the applicant and as such, he is not entitled to the concession of bail at this stage.

4. Heard the learned counsel for the applicant, Additional Prosecutor General and perused the material available on record.

5. Firstly, according to the prosecution, the FIR was handed over to the Investigating Officer on the same day, whereas he visited the place of incident on the following day, i.e., 15-10-2024. Thereafter, he recorded the statements under section 161 Cr.P.C of the recovery witnesses, who were also shown as mashirs of the memo of inspection of the place of incident. This fact has also been affirmed by the learned Additional Prosecutor General, as the case diary dated 15-10-2024 reflects the same situation. However, upon perusal of the statements under section 161 Cr.PCof the recovery witnesses/mashirs, it is noted that not a single word is mentioned in their statements indicating that they visited the place of incident or that the Investigating Officer had appointed them as attesting witnesses for the preparation of the memo. Therefore, at this stage, tentatively, such variant is relevant for consideration.

6. In the present case, the description of the place of incident indicates that it occurred in a busy area; however, the police have failed to provide any explanation as to why independent witnesses were not cited at the time of recovery or even during the inspection of the place of incident. It is noteworthy that while Section 25 of the Control of Narcotic Substances Act excludes the application of Section 103 Cr.P.C., the police are still required to provide cogent reasons for not involving independent witnesses. In this regard, the Honourable Supreme Court, in the case of Zahid Sarfaraz Gill v. The State (2024 SCMR 934), held that "we are aware that section 25 of the Act excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, we fail to understand why the police and members of the Anti-Narcotics Force ('ANF') do not record or photograph when search, seizure and/or arrest is made. Article 164 of the Qanun-e-Shahdat, 1984 specifically permits the use of any evidence that may be become available because of modern devices or techniques and its Article 165 override all other laws."

7. It is also pertinent to note that the prosecution's story is primarily based on the recovery of two slabs of charas. However, the prosecution has failed to specify the weight of each individual slab. While it is mentioned that the two slabs collectively weighed 1120 grams, the omission of the weight of each slab individually constitutes a flaw in the case.

2025 Y L R 2364

[Sindh (Larkana Bench)]

Before Muhammad Saleem Jessar, J

Nadir---Appellant

Versus

The State---Respondent

Criminal Jail Appeal No. S-30 of 2020, decided on 26th May, 2025.

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

----S. 24---Possession of illegal weapon---Appreciation of evidence---Benefit of doubt---Accused was charged for having in his possession TT pistol with magazine containing two live bullets of 30-bore, allegedly used in a crime registered under Ss. 302, 148 & 149, P.P.C---From perusal of the record it appeared that the police party headed by complainant claimed to have left the police station under Roznamcha entry No.11, at 04.00 pm of 18.9.2018; however, at trial the complainant failed to produce departure or arrival entries to substantiate his plea that he had actually left the police station on the relevant date and time---Moreover, per claim of complainant, the case property was kept by him in safe custody in Malkhana of Police Station and recorded such entry in the relevant Register; however, he failed to produce on record such entry during the trial---Complainant's further claim was that after getting permission he sent the parcels containing case property to the Forensic Science Laboratory, however, neither he disclosed the dispatch official nor any one was examined at the trial---Daily diary entry through which the police allegedly had left Police Station for the purpose mentioned under the FIR was not produced in evidence at the time of trial---Non-production of such vital document by the Investigating Officer at the time of trial showed that they had not left the police station for the purpose mentioned under the memo of recovery and arrest as well as the FIR---Hence, either the offence as alleged had not occurred or the police completed/prepared all the formalities at police station only to strengthen the rope of main case---Trial Court did not bother to discuss that essential aspect of the case while awarding conviction to appellant neither the prosecution justified their claim in that regard---If the contents of FIR might be presumed to be true that the appellant was found in possession of an unlicensed pistol which obviously was a cognizable offence, yet the weapon allegedly shown to have been recovered from his possession was not the weapon through which he allegedly had committed murder of the deceased in the main case---Hence, instant case should not be termed as an offshoot of main crime---Complainant admitted in cross-examination that the mashirs, who were related to the complainant of murder case, were arranged by said complainant and further that both private mashirs were picked up by him from the way while going to place of recovery---In that context, the mashir stated in his examination-in-chief that he and co-mashir were standing near place of recovery---Such infirmities in the prosecution case created reasonable doubt about the guilt of applicant---Appeal against conviction was allowed, in circumstances.

(b) Criminal trial---

----Benefit of doubt---Principle---If there is a 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 same not as a matter of grace or concession but as a matter of right.

Muhammad Mansha v. The State 2018 SCMR 772 rel.

Ashique Hussain Kalhoro for Appellant.

Ali Anwar Kandhro, Addl. Prosecutor General, Sindh for the State.

Date of hearing: 26th May, 2025.

Judgment

Muhammad Saleem Jessar, J.---Through instant criminal jail appeal, the appellant has called in question the Judgment dated 19.02.2020 (impugned judgment) penned down by learned First Additional Sessions Judge/MCTC, Kamber, vide Sessions Case No.354 / 2018 (re: State v. Nadir Laar). The case is outcome of Crime No.38/2018, registered at P.S Gaji Khuhawar, for offence under Section 24 of Sindh Arms Act, 2013. After recording evidence and determination of points, the trial Court held the appellant guilty of charge under section 24, Sindh Arms Act, 2013, hence, convicted and sentenced him to undergo R.I. for 03(three) years, and to pay fine of Rs.200,000/-. In case of default, the appellant was directed to undergo S.I. for six months more. However, benefit of Section 382-B, Cr.P.C was extended to the appellant/ convict.

1. According to the case of prosecution, on 18.09.2018, a police party headed by SIP Abdul Rasheed Korkani of PS Gaji Khuhawar having left their police station in connection with investigation of FIR vide Crime No.37/2018 of PS Gaji Khuhawar, under sections 302, 148, 149, P.P.C., on a tip-off, apprehended appellant Nadir Laar, being a nominated accused in the said crime, at 1700 hours from near Bago Sim Shakh Bridge on Khuhawar-Mehar Road and in presence of private mashirs Muhammad Salih and Abdul Jabbar, both by caste Laar, who were allegedly called by complainant after receipt of spy information, recovered an unlicensed T.T. Pistol loaded with magazine containing two live bullets of 30-bore, which was sealed on the spot. The memo of arrest and recovery was prepared and then the appellant as well as case property were brought at P.S where instant case was registered against him on behalf of the State.

2. A formal charge was framed against the accused, to which he pleaded "not guilty" and claimed to be tried.

3. In order to prove its charge, the prosecution examined and relied upon evidence of in all five witnesses i.e. mashir Muhammad Salih Laar and complainant, author and IO SIP Abdul Rasheed Korkani. They exhibited relevant documents in their evidence.

4. In his statement under section 342, Cr.P.C, the appellant/accused denied the prosecution case and claimed to be innocent and implicated at the behest of complainant of main case vide Crime No.37/2018. However, neither he examined himself on oath nor produced any witness in his defence.

5. After formulating the points for determination, recording evidence of the prosecution witnesses and hearing counsel for the parties, trial Court vide impugned judgment convicted and sentenced the appellant / accused, as stated above. Against said judgment, the appellant has preferred instant appeal.

6. Learned counsel for the appellant submitted that the offensive weapon was foisted upon the appellant at the behest of complainant of main case Crime No.73/2018. He further submitted that per FIR of the main case, the appellant was shown armed with Kalashnikov; whereas, the recovery shown from him is a T.T. Pistol, which has no nexus with the main case. He contended that though per prosecution case the weapon was sealed and sent to the ballistics expert for examination; however, the prosecution failed to produce the relevant entries during trial and even the dispatch official through whom the weapon was sent for examination and report was not examined at trial, therefore, the prosecution failed to prove safe custody as well as safe transmission of the offensive weapon to the expert. He lastly contended that there are numerous contradictions and inconsistencies in the evidence of witnesses examined by the prosecution at trial, therefore, the appellant is entitled to be acquitted.

7. Learned Addl. Prosecutor General supported the impugned judgment and contended that the prosecution by adducing trustworthy and confidence inspiring evidence as well as positive ballistics expert report has proved the case against the appellant, therefore, the appeal in hand is without merit and is therefore, liable to be dismissed.

8. I have heard learned Counsel for the appellant as well as learned Addl. P.G for the State and perused the material made available on the record.

9. From perusal of the record it appears that the police party headed by complainant SIP Abdul Rasheed Korkani claimed to have left the police station under roznamcha entry No.11, at 1600 hours of 18.9.2018; however, at trial the complainant failed to produce departure or arrival entries to substantiate his plea that he had actually left the police station on the relevant date and time. Moreover, per claim of complainant, the case property was kept by him in safe custody in Malkhana of P.S and recorded such entry in the relevant Register; however, he failed to produce on record such entry during the trial. His further claim was that after getting permission he sent the parcels containing case property to the FSL Laboratory Larkana; however, neither he disclosed the dispatch official nor any one was examined at the trial.

10. The daily diary entry through which the police allegedly had left P.S for the purpose mentioned under the FIR was not produced in evidence at the time of trial. Non-production of such vital document by the I.O at the time of trial, shows they had not left the police station for the purpose mentioned under the memo of recovery and arrest as well as the FIR; hence, either the offence as alleged had not occurred or the police completed/prepared all the formalities at police station only to strengthen the rope of main case.

11. The contention raised by learned defense counsel that per averments of the main FIR, the appellant allegedly was shown to have had a Kalashnikov which allegedly was used by him; however, at the time of trial, the police have shown a pistol to have been recovered/produced from/by him and then it was treated to be an offshoot of said main crime. Suffice it to say, the trial Court did not bother to discuss this essential aspect of the case while awarding conviction to appellant neither the prosecution justified their claim in this regard. If the contents of FIR may be presumed to be true that the appellant was found in possession of an unlicensed pistol which obviously is a cognizable offence, yet the weapon allegedly shown to have been recovered from his possession was not the weapon through which he allegedly had committed murder of the deceased in main case. Hence, instant case should not be termed as an offshoot of main crime.

2025 Y L R 2370

[Sindh (Larkana Bench)]

Before Jawad Akbar Sarwana, J

Ghulam Abbas---Applicant

Versus

Asad Ali and others---Respondents

Civil Revision Application No. S-53 of 2017, decided on 15th January, 2024.

Specific Relief Act ( I of 1877) ---

----S.54---Suit for settlement of accounts and permanent injunction---Absence of entitlement/proof---Suit, filing of---Scope and effect---Claim of the plaintiff was that the defendant continued to harass him for loan' recovery despite extracting extra payments from him (plaintiff)---Claim of the plaintiff was concurrently rejected---Validity---Petitioner/plaintiff placed nothing on record that respondent/defendant had advanced any loan and he (plaintiff) made any repayments to the respondent/ defendant---Petitioner/plaintiff failed to prove his case---Trial Court rightly observed that petitioner / plaintiff had no case---Record revealed that no legal grounds or special circumstances had been made out by the petitioner / plaintiff before the Appellate Court to set aside the judgment and decree of the Trial Court --- Appellate Court had not fallen into any error while passing the impugned judgment as no case was made out before it ( Appellate Court) by the petitioner / plaintiff --- Even present revision filed by the plaintiff was frivolous and liable to be dismissed---High Court was minded to impose costs on the petitioner / plaintiff and his counsel, but chose not to do so---Revision, filed by plaintiff, was dismissed, in circumstances.

Irfan Badar Abbasi for Applicant.

Asad Ali Respondent No. 1.

SHO P.S Waleed, Larkana Respondent No. 2.

S.S.P., Larkana Respondent No. 3.

Abdul Hamid Bhurgri, Additional Advocate General, Sindh for Respondent No. 4.

Judgment

Jawad Akbar Sarwana, J.---The Applicant ("Ghulam Abbas son of Dost Muhammad Kalhoro" / "Ghulam Abbas") has filed this Civil Revision No.53 of 2017 under Section 115 C.P.C. aggrieved by the IVth Additional District and Sessions Judge Larkana (the "Appellate Court") impugned Judgment dated 28.10.2017 in Civil Appeal No.78/2017 and the IInd Senior Civil Judge, Larkana (the "Trial Court") impugned Judgment and Decree dated 26.05.2017 in F.C. Suit No.66/2017 filed by Ghulam Abbas. Ghulam Abbas could not prove his case on the trial side, and his appeal against the aforementioned Judgment and Decree was also dismissed.

1. The brief facts of the Civil Revision based on the information available in the revision file is that allegedly Ghulam Abbas obtained a loan, apparently based on personal need, from the Respondent, Asad Ali son of Abdullah. Ghulam Abbas claims that he re-paid the loan to Asad Ali. When I asked the learned Counsel for Ghulam Abbas to show from the record available in the revision file when and how the loan was repaid, he conceded none was available on record. He claims that Asad Ali continued to harass him for the loan's recovery and allegedly extracted further payments from him. Accordingly, he filed a suit for Settlement of Account and Permanent Injunction, in which the suit went undefended, and after Ghulam Ali recorded his evidence and arguments were heard, it was dismissed. In appeal, Asad Ali entered an appearance and vehemently denied Ghulam Abbas's claim. Once again, the Appellate Court rejected Ghulam Abbas's claims, as set out in his appeal against the impugned Judgment and Decree.

2025 Y L R 2385

[Sindh (Hyderabad Bench)]

Before Arshad Hussain Khan and Syed Fiaz-ul-Hassan Shah, JJ

Mst. Sahib Khatoon---Petitioner

Versus

Province of Sindh through Secretary Home Department, Sindh, Karachi and others---Respondents

Constitution Petition No. D-544 of 2025, decided on 8th April, 2025.

Criminal Procedure Code (V of 1898)---

----Ss. 154 & 561-A---Constitution of Pakistan, Art. 199---Penal Code (XLV of 1860), Ss. 353 & 324---Quashing of FIR---Constitutional jurisdiction of High Court---Scope---Petitioner/ accused sought quashing of FIR by invoking constitutional jurisdiction of the High Court---Allegation against the petitioner/accused was that he made an assault on police---Undoubtedly, under the Constitutional jurisdiction conferred under Art.199 of the Constitution, a High Court could quash FIR but such power cannot be unstintingly and frequently exercised in the constitutional or inherent jurisdictions by the High Court to quash FIR and must be exercised sparingly in exceptional cases---Mere statement of petitioner or assertion alone that a false case or FIR was registered against him was insufficient to establish constitutional jurisdiction and to adjudicate the lis under the constitutional jurisdiction of the High Court---Judicial propriety did not permit to quash the FIR of cases which were not squarely falling within defined parameters of the rules and which involved disputed facts or controversial facts required a full probe, inquiry or investigation and such procedure culminated in the shape of police report under S.173, Cr.P.C.---Involvement of disputed facts or factual controversies could not be adjudicated in exercise of Constitutional jurisdiction under Art.199 of the Constitution---Other contraceptive barrier for the petitioner to establish the constitutional jurisdiction was an alternative remedy---Constitutional jurisdiction could only be invoked if the petitioner had no other efficacious and effective remedy available under the statutory provisions---Operative statutes and sub-ordinate legislation provided alternative avenues for the reliefs that had been urged before the Court---Under the scheme of criminal jurisprudence in every criminal case, a criminal investigation terminated into a police report or charge sheet or reference or confidential final report or challan, which solely depended upon formation of independent views by a Judicial Magistrate as required under S.190(3), Cr.P.C., or by an Anti-Terrorism Court while accepting or rejecting challan on evaluation of investigation report and material collected---Comparatively, the alternate remedy could conveniently accomplish the purpose of petitioner and was equally effective and efficacious---In such situation it again effectively barred the constitutional jurisdiction of the High Court---In the presence of adequate remedy which is more efficacious, speedy and effective, present petition was not entertainable---Petitioner had failed to point out any of the ingredients for the quasing of FIR---Constitutional petition was dismissed in limine, in circumstances.

Ajmeel Khan v. Abdul Rahim and others PLD 2009 SC 102; Gulam Mustufa v. State 2008 SCMR 76; FIA, Director General FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265; Col. Shah Sadiq v. Muhammad Ashiq and others 2006 SCMR 276; Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another 2023 SCMR 246; Amir Jamal and others v. Malik Zahoor-ul-Haq and others 2011 SCMR 1023; Fida Hussain v. Mst. Saiqa and others 2011 SCMR 1990; State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd. PLD 1983 SC 280; Gul Ahmed Textile Mills Ltd. v. Collector of Customs Appraisement 1990 MLD 126; Pak Metal Industries v. Assistant Collector 1990 CLC 1022; Allah Wasaya v. Tehsildar/AC 1st Grade 1981 CLC 1202; Syed Riaz Hussain Zaidi v. Muhammad Iqbal PLD 1981 Lah. 215; Abdul Hafeez v. Chairman Municipal Corporation PLD 1967 Lah. 1251; Dr. Sher Afghan Khan Niazi v. Ali S. Habib and others 2011 SCMR 1813 and Zeeshan Shani v. The State 2012 SCMR 428 rel.

Ghulam Mustafa Abbasi for Petitioner.

Judgment

Syed Fiaz-ul-Hassan Shah, J.---1. Urgent application is disposed of.

2to5. Through this petition, the petitioner has prayed as under:

"(a) That this Honorable Court may be pleased to quash the impugned FIR bearing Crime No.05 of 2025, under section 353, 324 P.P.C., of PS Manjhand lodged by the Respondent No.3 being false, fabricated, concocted and manipulated story.

(b) That this Honorable Court may be pleased to suspend/stay the impugned FIR bearing Crime No.05 of 2025, under section 353, 324 P.P.C., of PS Manjhand lodged by the Respondent No.3 till the final disposal of the main petition.

(c) That this Honorable Court may be pleased to issue direction to the Respondent No.2 to provide legal protection to the petitioner and her family members as at the hands of Respondent No.3 and other unknown police officials.

(d) That this Honorable Court may be pleased to issue direction to the respondent No.3 to not lodged any false FIR against the petitioner and her family members at the hands of private respondent No.6 and further give direction to the official respondents not to arrest the petitioner and her family members.

(e) Any other relief which the Honorable Court deems fit and proper in view of the above fact for protection of Petitioners and in the interest of justice."

The Counsel for the petitioner has mainly argued that a false case has been registered by the police, therefore, it may be quashed. We have noticed that FIR No.05 of 2025 PS Manjhand District Jamshoro was registered for offence under Sections 353, 324 P.P.C. Since, the FIR has been registered having statutory backing under Section 154 Cr.P.C, For the sake of convenience, the same is reproduced hereunder:

"154. Information in cognizable cases. Every information relating to the commission of a cognizable offence if given orally to an officer in-charge of a police-station, shall be reduced to writing by him or under his direction, and be read over to the informant, and every such information whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it and the substance thereof shall be entered in a book to be kept by such officer in such form as the provincial Government may prescribe in this behalf."

Undoubtedly, the constitutional jurisdiction conferred under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, a High Court can quash an FIR but such power cannot unstintingly and frequently exercise in the Constitutional or inherent jurisdictions by this Court to quash an FIR and it can exercise sparingly in exceptional cases within parameters settled by the Supreme Court of Pakistan. The Hon'ble Supreme Court of Pakistan in case "Ajmeel Khan v. Abdul Rahim and others" (PLD 2009 SC 102) held:

"6. Needless to emphasis, that functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. If a criminal liability is spelt out from facts and circumstances of a particular case, accused can be tried upon a criminal charge. Quashment of FIR during investigation tantamount to throttling the investigation which is not permissible in law. However, FIR can be quashed by High Court in its writ jurisdiction when its registration appears to be misuse of process of law or without any legal justification. The police are under a statutory duty under Section 154 of the Code of Criminal Procedure and have a statutory right under Section 156 of the Code of Criminal Procedure to investigate a cognizable offence whenever a report is made to it disclosing the commission of a cognizable offence. To quash the police investigation on the ground that the case is false would be to act on treacherous grounds and would tantamount to an uncalled for interference by the Court with the duties of the police."

[Emphasis added]

In another case "Gulam Mustufa v. State" (2008 SCMR 76) the Supreme Court held that:

"High Court has no jurisdiction whatsoever to take the role of the investigating agency and to quash the FIR, while exercising constitutional power under Article 199 of the Constitution or under section 561-A Cr.P.C. unless and until very exceptional circumstances existed."

These exceptional grounds have been rendered down by the apex Court, for instance in case "FIA, Director General FIA and others v. Syed Hamid Ali Shah and others" (PLD 2023 SC 265), the Supreme Court of Pakistan highlighted that High Court can quash FIR under its writ jurisdiction when FIR is patently illegal or contrary to law or it did not constitute a cognizable offence. Although, there is no restriction has put on the High Court to invoke the provision of writ jurisdiction for quashment of FIR, however, the said obstruction or rampart thrown up across a way or relief to check the balance and importance of provision of section 154 Cr.P.C and recognized principles that no disputed facts can be resolved in the constitutional jurisdiction and it must proceed within the operative statutes. Notably, the intent of legislatures is clearly understandable as various provisions are available under the Criminal Procedure Code, 1898 with the Investigation Officers or Prosecutor or even Judicial Magistrate of area while supervising investigation or even during the trial by the Court of Judicial Magistrate or Court of Sessions under the provisions of Sections 63, 249-A or 265-K and in the presence of such alternate remedies, the quashment of FIR in writ jurisdiction for the grievance which can conveniently be attributed under the statutory provision, cannot be invoked or this Court does not appreciate as per the settled legal principles of power and scope under the Constitutional jurisdiction. The Supreme Court of Pakistan has highlighted the fundamental points; "exceptional circumstances" and "alternate remedy" or "disputed facts", where a High Court ought not to not interfere with the FIR and prefer to proceed the investigation or trial to its logical way, in a landmark case "Col. Shah Sadiq v. Muhammad Ashiq and others" (2006 SCMR 276)

"7. It is also a settled proposition of law that if prima facie an offence has been committed, ordinary course of trial before the Court should not be allowed to be deflected by resorting to constitutional jurisdiction of High Court. By accepting the constitutional petition, the High Court erred in law to short circuit the normal procedure of law as provided under Cr.P.C. and police rules while exercising equitable jurisdiction which is not in consonance with the law laid down by this Court in A. Habib Ahmad v. M.K.G. Scott Christian PLD 1992 SC 353. The learned High Court had quashed the FIR. in such a manner as if the respondent had filed an appeal before the High Court against order passed by trial Court. The learned High Court had no jurisdiction to quash the impugned FIR by appreciation of the documents produced by the parties without providing chance to cross-examine or confronting the documents in question. Respondents had alternative 'remedy to raise objection at the time of framing the charge against them by the trial Court or at the time of final disposal of the trial after recording the evidence. Even otherwise, respondents have more than one alternative remedies before the trial Court under the Cr.P.C. i.e. section 265-K, 249-A or to approach the concerned Magistrate for cancellation of the case under provisions of Cr.P.C. The respondents have following alternative remedies under Cr.P.C.:-

(a) To appear before the Investigating Officer to prove their innocence.

(b) To approach the competent higher authorities of the Investigating Officer having powers vide section 551 of Cr.P.C.

(c) After completion of the investigation, the Investigating Officer has to submit case to the concerned Magistrate and the Magistrate concerned has power to discharge them under section 63 of the Cr.P.C. in case of their innocence.

(d) In case he finds the respondents innocent, he would refuse to take cognizance of the matter.

(e) Rule 24.7 of the Police Rules of 1934 makes a provision for cancellation of cases during the course of investigation under the orders of the concerned Magistrate.

(f) There are then remedies which are available to accused persons who claim to be innocent and who can seek relief without going through the entire length of investigations.

1. The learned High Court erred in law in accepting constitutional petition by quashing the FIR at the initial stage which was not in consonance with the law laid down by this Court in the following judgments:-

(i) Ghulam Muhammad v. Muzammal Khan and 3 others PLD 1967 SC 317; (ii) Mohsin Ali and another v. The State 1992 SCMR 229; (iii) Abdul Rehman v. Muhammad Hayat Khan and others 1980 SCMR 311; (iv) Marghoob Alam and another v. Shamas Din and another 1986 SCMR 303; (v) Sheikh Muhammad Yameen v. The State 1973 SCMR 622; (vi) Bashir Ahmad v. Zafar-ul-Islaam and others PLD 2004 SC 298; (vii) Kh. Nazir Ahmad's case AIR 1945 PC p.18; (viii) Shahnaz Begum v. The Honourable Judges of the High Court of Sindh and Balochistan and another PLD 1971 SC 677; (ix) Brig. (Retd.) Imtiaz Ahmad v. Government of Pakistan through Secretary, Interior Division, Islamabad and 2 others 1994 SCMR 2142.

9. According to provisions of Cr.P.C. it is for the Investigating Officer to collect all the facts connected with the commission of offence and if he finds that no offence is committed, he may submit a report under section 173, Cr.P.C. to the Allaqa Magistrate. On the other hand, if on the basis of his investigation he is of the opinion that the offence has in fact been committed, he has to submit report accordingly. However, the report of the Investigating Officer cannot be the evidence in the case. The investigation is held with a view to ascertaining whether or not an offence has been committed. The inquiry, or trial, as the case may be has to be conducted by the Magistrate. If the police is restrained from investigating the matter, their statutory duty, it will in our opinion be tantamount to acting against the law as held in Kh. Nazir Ahmad's case AIR 1945 PC. p.18. The relevant observation is as follows:

"Just as it is essential that everyone accused of a crime should have free access to a Court of justice so that he may be duly acquitted if found not guilty of the offence with which he is charged, so it is of the utmost importance that the judiciary should not interfere with the police in the matters which are within their province and into which the law imposes upon them the duty of enquiry. In India as W.P No. 1976-Q of 2022. It has been shown there is a statutory right on the part of the police under sections 154 and 156 to investigate the circumstances of an alleged cognizable crime without requiring any authority from the judicial authorities, and it would as their Lordships think, be an unfortunate result if it should be held possible to interfere with those statutory rights by an exercise of the inherent jurisdiction of the Court under section 561-A. The functions of the judiciary and the police are complementary not overlapping and the combination the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function, always of course, subject to the right of the Court to intervene in an appropriate case when moved under section 491, Criminal Procedure Code, to give direction in the nature of habeas corpus. In such a case as the present, however, the Court's functions begin when a charge is preferred before it and not until then."

The mere statement of petitioner or assertion alone that a false case or FIR is registered against him is insufficient to establish constitutional jurisdiction and to adjudicate the lis under the Constitutional jurisdiction of this Court. The judicial propriety does not permit to quash the FIR of cases which are not squarely fall within defined parameters of the rules laid down by the Supreme Court of Pakistan and which involve disputed facts or controversial facts requires a full probe, inquiry or investigation and such procedure culminated in the shape of police report under section 173 Cr.P.C. The involvement of disputed facts or factual controversies cannot be adjudicated in exercise of its constitutional jurisdiction under Article 199 as held by this court in the cases of "Mst. Tayyeba Ambareen and another v. Shafqat Ali Kiyani and another (2023 SCMR 246), "Amir Jamal and others v. Malik Zahoor-ul-Haq and others" (2011 SCMR 1023) and "Fida Hussain v. Mst Saiqa and others" (2011 SCMR 1990), "State Life Insurance Corporation of Pakistan v. Pakistan Tobacco Co. Ltd." (PLD 1983 SC 280).

The other contraceptive barrier for the petitioner to establish the constitutional jurisdiction is alternative remedy. The constitutional jurisdiction can only be invoked if the petitioner has no other efficacious and effective remedy available under the statutory provisions. The operative statutes and sub-ordinated legislation provide alternative avenues for the reliefs what have urged before us. Under the scheme of criminal jurisprudence in every criminal case, a criminal investigation terminated into a police report or charge sheet or reference or confidential final report or challan solely depends upon formation of independent views by a Judicial Magistrate as required under section 190(3) Cr.P.C. or by a Anti-Terrorism Court while accepting or rejecting challan on evaluation of investigation report and material together collected thereto. Comparatively, the alternate remedy can conveniently accomplish the purpose of petitioner and is equally effective and efficacious and in this situation it again effectively bars the constitutional jurisdiction of this Court. Reliance can be placed on cases entitled a "Gul Ahmed Textile Mills Ltd v. Collector of Customs Appraisement", (1990 MLD 126), "Pak. Metal Industries v. Assistant Collector", (1990 CLC 1022), "Allah Wasaya v. Tehsildar/AC 1st Grade", (1981 CLC 1202), "Syed Riaz Hussain Zaidi v. Muhammad Iqbal", (PLD 1981 Lah. 215) and "Abdul Hafeez v. Chairman, Municipal Corporation" (PLD 1967 Lah. 1251).

The extraordinary jurisdiction under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973 is envisioned predominantly for affording an express remedy where the unlawfulness and impropriety of the action of an executive or police or Investigation Officer could be substantiated with the very action when it is patently illegal, unlawful or ultra vires or done or performed in colorable exercise of jurisdiction vested in such authority or officer or propriety demands or permit that it is without any convoluted inquiry or in other words when it does not involve disputed or controversial facts which may without any question assuredly avoid necessitation of adoption of normal course of trial or adjudication by a Court of law. The expression "adequate remedy" signifies an effectual, accessible, advantageous and expeditious remedy which obviously must have statutory adherence with or requirement of such statutory mandate which is generally called as "jurisdiction". Since the statutes provides more adequate remedy remedium juris and expressive adequate remedy and ways are more efficacious, beneficial, convenient, effective, speedy and appropriate within criminal jurisdiction of the inferior courts, for instance the trial Court would have to reach at certain conclusion after recording of evidence, testimonies of prosecution witnesses together with record, material or documents, if any, produce by prosecution side and during the course of trial, the statutes permit the court to grant bail as per recognized judicial principles or exemption from personal appearance, or discharge when charge is groundless or release as a case of further inquiry under section 497(2) Cr.P.C. or acquit under section 249-A or 265-K of the Cr.P.C., therefore, in the presence of adequate remedy which is more efficacious, speedy and effective, the petition is not entertainable. Reference can be placed on the case "Dr. Sher Afgan Khan Niazi v. Ali S. Habib and others" (2011 SCMR 1813). To sum up the discussion, the petitioner has failed to point out any of the ingredients for the quashment that may modify this Court to quash the FIR. Therefore, the constitution petition stands dismissed in limine.

2025 Y L R 2403

[Sindh (Sukkur Bench)]

Before Ali Haider 'Ada', J

Aurangzeb Khan---Appellant

Versus

The State---Respondent

Criminal Appeals Nos. S-125 and S-126 of 2023, decided on 10th March, 2025.

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

----Ss. 324, 337-F(iii), 337-F(v), 337-H(2), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, ghair jaifah hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Material witness not proceed for evidence---Accused were charged that they made firing upon the complainant party for their murder; and cousin of complainant was hit and injured---Complainant stated that he, along with his witnesses, was present at the location where the accused party perpetrated the assault---Following the incident, complainant and his witnesses proceeded to the police station to obtain a letter of medical treatment---During the entry process at the police station, one "AH" reported the incident to the Police and got letter as per arrival entry No.11, produced by the Investigation Officer---Complainant did not disclose about the presence of the "AH" during his deposition---Investigation Officer did not include "AH" as a witness---However, the prosecution did not call "AH" as a witness during trial, despite his status as the first informer of the incident---Ocular set attested to the presence of other independent witnesses of the villagers---Nevertheless, the Investigative Agency did not record the villagers' account or collect their evidence, as would be required to ascertain the facts independently---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, accordingly.

(b) Criminal trial---

----Enmity---Scope---Enmity is double edged weapon that cut both ways, on one hand, it provides a motive for accused to commit the occurrence, on the other hand, it equally provides an opportunity for the first informant to implicate his enemy.

Muhammad Rahim v. Bakhat Muhammad and others 2025 PCr.LJ 383 rel.

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

----Ss. 324, 337-F(iii), 337-F(v), 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, ghair jaifah hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Discrepancies in the prosecution case---Accused were charged that they made firing upon the complainant party for their murder; and cousin of complainant was hit and injured---Pursuant to the complainant, the patient was initially transported to the Agra Hospital after getting letter from Police subsequently transferred to the Civil Hospital and then referred to other hospital on the following day---Complainant did not disclose that the attending Medical Officer at the Agra Hospital had referred them for X-ray, though the record indicated that the patient had been referred for X-ray---Injured had remained completely silent regarding whether he was examined by the Medical Officer, referred to a radiologist, or transported to other hospital---However, the Medical Officer, in his testimony, stated that at the time of examination, the injured was conscious---Astonishingly, except for the complainant's statement, there was no record indicating that the injured was referred to other hospital, whereas the Medical Officer testified that the injured was personally shifted to other hospital at K-(Karachi)---Injured did not provide any details regarding the anatomical location of the injuries, which he sustained---Such facts demonstrated significant discrepancies in the prosecution's case---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, accordingly.

Muhammad Rahim v. Bakhat Muhammad and others 2006 SCMR 1217 rel.

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

----Ss. 324, 337-F(iii), 337-F(v), 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, ghair jaifah hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Recovery of crime empties---Inconsequential---Accused were charged that they made firing upon the complainant party for their murder; and cousin of complainant was hit and injured---Record showed that ten empty cartridges and six empties of Kalashnikov were recovered---Said items were secured from the site of the incident by the Investigating Officer on 05.06.2021 and subsequently sent for analysis via road certificate dated 11.06.2021---On same day, the analyzer received the property---However, there were no records available indicating whether the property was either lawfully retained or not, as the record indicated an absence of any entries---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, accordingly.

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

----Ss. 324, 337-F(iii), 337-F(v), 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, ghair jaifah hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Arrival and departure entries doubtful---Accused were charged that they made firing upon the complainant party for their murder; and cousin of complainant was hit and injured---At the time of the site visit, the Investigation Officer maintained records of both arrival and departure---However, the arrival entry did not disclose the formalities that were carried out during the visit, as it failed to include such details in the said arrival record---Investigation Officer secured empties, therefore, the same should be noted on the entry register---Investigation Officer further stated that the memo. of place of incident was prepared by one official WHC, but he was not present at the scene, as affirmed by him---Rule 22.70 of Chapter XXII, Volume III of Police Rules 1934, provided mechanism that every article placed in store room shall be entered in register and the removal of any such article shall be noted in the appropriate column---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, accordingly.

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

----Ss. 324, 337-F(iii), 337-F(v), 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, ghair jaifah hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Delay of two days in lodging the FIR---Consequential---Accused were charged that they made firing upon the complainant party for their murder; and cousin of complainant was hit and injured---Record showed that there was two days delay in FIR while the complainant party reached at the day of incident, it was also a question that when the injured was discharged from the K-(Karachi) hospital---As such, delay was serious lapse until and unless explained but in instant case, no explanation was provided---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, accordingly.

Abdul Ghafoor v. The State 2022 SCMR 1527 and Nadeem alias Kala v. The State 2018 SCMR 153 rel.

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

----Ss. 324, 337-F(iii), 337-F(v), 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, ghair jaifah hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Non-recovery of blood stained clothes of injured---Consequential---Accused were charged that they made firing upon the complainant party for their murder; and cousin of complainant was hit and injured---Complainant party arrived at the conclusion that the injured had sustained an injury, as evidenced by the presence of blood oozing from the wound---Such finding was affirmed by the Medical Officer---However, the Investigation Agency or prosecution did not manage to procure any clothing from the injured to serve as a collaborative piece of evidence---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, accordingly.

Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319 rel.

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

----Ss. 324, 337-F(iii), 337-F(v), 337-H(2), 148 & 149---Attempt to commit qatl-i-amd, ghayr-jaifah-hashimah, ghair jaifah hashimah, rash or negligent act to endanger human life or personal safety of others, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Benefit of doubt---Acquittal of co-accused on same set of evidence---Accused were charged that they made firing upon the complainant party for their murder; and cousin of complainant was hit and injured---Once, the Court believes the evidence and convicts the accused while on the other part on same set of evidence acquits the co-accused on the point that they has no active role that amounts to disbelieve the set of evidence---In the present case, the evidence or material was not read in toto and such discrepancy was highlighted---Circumstances established that the prosecution had failed to prove its case against the accused---Appeal against conviction was allowed, accordingly.

PLD 2019 SC 527 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---If any single circumstance creates doubt then its benefit would go to accused.

Muhammad Riaz v. Khurram Shahzad and another 2024 SCMR 51 rel.

Noor Hassan Malik and Samandar Ali Shaikh for Appellants (in Criminal Appeals Nos. S-125 and 126 of 2023).

Syed Sardar Ali Shah, Additional Prosecutor General Sindh for the State.

Asif Ali Jatoi for the Complainant.

Date of hearing: 10th March, 2025.

Judgment

Ali Haider 'Ada', J.---By means of these Appeals, the appellants Aurangzeb Khan and Rashid Umer have assailed the Judgment dated 27.10.2023 passed by learned Additional Sessions Judge, Gambat in Sessions Case No.680 of 2021, being outcome of FIR No.12 of 2021 under sections 324, 337F(iii), 337F(v), 337H(2), 148, 149 P.P.C registered at P.S. Landhyoon filed by appellants whereby the appellant Aurangzeb Khan was convicted and sentenced under section 324 P.P.C to undergo imprisonment for ten years (R.I) and for under section 337F(v) he was convicted and sentenced to undergo R.I for 05 years and as Daman of Rs.50,000/- which shall be payable to PW/injured Abdul Majeed while appellant/accused Rashid Ali was convicted and sentenced under section 324 P.P.C to undergo R.I for Ten years and for offence under section 337F(iii) he was convicted for three years (R.I) and as Daman of Rs.50,000/- which shall be payable to PW/injured Abdul Majeed. However, they were extended benefit under Section 382-B Cr.P.C.

1. The facts of the case in nutshell are that complainant lodged FIR on 05.06.2021, stating that there was dispute between complainant Bilawal Ali Jatoi and accused Aurangzeb Jatoi over distribution of lands. Aurangzeb used to issue threats not to cultivate the lands, otherwise they would not be spared. On 03.06.2021, the complainant along with his cousins Aakash Ali, Shahid Hussain and Abdul Majeed were working together in the fields. It was about 6:00 p.m. Accused Aurangzeb with repeater, SAjid Ali with KK, Zamir with KK, Rashid Ali with KK, Iqbal with KK, Gulab with repeater, Barkat with gun, Troohi with Repeater emerged there. They encircled the complainant party. Accused Aurangzeb asked the complainant party since they were restrained not to cultivate the lands but they did not stop therefore, they will cause their murder. Saying so, accused Aurangzeb and Rashid Ali opened direct fires of repeater and KK, respectively upon PW Abdul Majeed with intention to commit his Qatl-i-Amd. The fires hit him on elbow of his left arm and on thigh of his right leg. He fell down on the ground. The complainant party raised cries which attracted vicinity people and on seeing them they ran away by making aerial firing. Thereafter complainant and his PWs shifted injured at Police Station, Landhyoon, obtained letter and shifted injured to hospital for treatment and after admitting the injured complainant lodged FIR.

2. The investigation was completed and after completing investigation the appellants were sent-up for trial. The trial Court framed the charge in which they pleaded not guilty and claimed for trial vide their pleas at Ex.4-A to 5-D respectively.

3. At the trial, prosecution examined complainant Bilawal Ali at Ex.4, he produced FIR at Ex.5-A, PW-2 injured Abdul Majeed at Ex.6, PW-3 MLO Dr. Muhammad Ayoob at Ex.6, he produced letter, provisional MLC, referring letter, X-ray plates, report of radiologist, medical certificate of A.O, Hospital private Ltd. Karachi and final MLC of injured Abdul Majeed at Ex.6-A to 6-G respectively. PW-4 ASI Riaz Hussain (author of FIR) at Ex.7, PW-5 ASI Masood Ahmed at Ex.8, he produced memo. of inspecting injuries, roznamcha entries, letter, memo. of visiting place of incident and recovery at Ex.8-A to 8-F. PW-6 Manzoor Ali at Ex.9. PW-7 mashir Shahid Hussain at Ex.10 who produced copy of his CNIC at Ex.10-A. After closure of prosecution side the trial Court recorded the statement of accused and after that passed judgment as such assailed the judgment through these appeals. Hence, these appeals.

4. I have carefully heard learned counsel for the parties and scanned the entire evidence available on record.

5. Learned counsel for the appellants submits that there is two days delay in the FIR, as it lacks a plausible explanation. The complainant party received a letter on the same day of the incident, as alleged. The complainant has stated that the injured party was transported to Larkana hospital; however, there is no documentation substantiating this claim. Moreover, the records from Karachi Hospital only contained a single photocopy of a certificate, indicating a lack of comprehensive documentation. There is a discrepancy between the medical evidence and the testimony of the eye-witness. The police recorded the witnesses' statements after a delay, and, upon examining the injury on the right thigh as alleged, it was determined that no pallet marking was available. Finally, the appellants pray for acquittal.

6. The learned counsel for the complainant as well as Learned Additional Prosecutor General contend that all witnesses provided support for their version of events. The medical evidence demonstrated that the injured party sustained firearm injuries. There is no material contradiction, and enmity is a double-edged sword that can be used against the accused. Finally, request has been made to uphold and maintain the conviction.

7. Heard arguments and perused the material available on record.

8. In order to properly ascertain the entirety of the case, the medical component of the case in conjunction with ocular set must be examined. In essence, the injured sustained injuries as Subject sustained injuries from firearms, specifically from repeater weapons and Kalashnikov. The details of injuries are as under:-

9. A Large irregular punctured wound of about 15.0 x12.0 CM noted at left fore-arm near elbow joint

10. A round punctured wound about 1.01.0CM noted on right inguinal region.

As according to the medical evidence no blackening and charring was seen while the fires were made from the distance of about 5/10 feet.

As per prosecution, the Investigation Officer secured ten empties of 12 bore cartridges and 06 empties of KK. It is imperative that this aspect be scanned with a view to medical jurisprudence.

a) The, Chapter 3, Medical Evidence and Medical Witness of Modi Medical Jurisprudence, 26th Edition highlights the basic role of medical practitioner that they give frequently evidence as medical expert, therefore, he has to acquire the habit of making a careful note of all the facts observed by him. In the instant case, the doctor's testimony indicated that he had not made a preliminary record of the examination of the injuries.

b) In Chapter 25, "Injuries by Mechanical Violence," of Modi Medical Jurisprudence, 26th Edition, and the text discusses the characteristics of punctured wounds. It notes that the depth of a punctured wound is greater than its length, whereas in the case of a gunshot wound, the length of the wound is small and the depth of the wound is much larger. In this particular instance, uncertainty surrounds the nature of the punctured wound due to a lack of explicit guidelines concerning the characteristics of such wounds. Additionally, the medical evidence is conspicuously silent on this pivotal issue.

c) Further in supra chapter of Modi Medical Jurisprudence, 26th Edition, elucidated that Firearm wounds generally produce two wounds or apertures, namely one of entrance and other of exit of the projectile. When the wound of entrance is present, but not the wound of exit, it means that a bullet is lodged in the body except in those rare cases where a bullet has been coughed out after entering the respiratory passages or lost in the stool after entering the intestinal tract and also where a bullet by coming in contact with a bones is so deflected, as to pass out by same orifice as it entered. If a bullet gets fragmented inside the body, there may be multiple exist wound and a single entry wound. It is also possible to have multiple wounds of entrance and exit caused by a single bullet when it passes in and out of two portions of the body. The X-Ray Examination is also defined and explained in that chapter, that X-Ray examination is useful in the evaluation of firearm wound:

(a) To locate the bullet/pellets inside the body;

(b) To see whether any part of the bullet (projectile) is still in the body;

(c) To locate for retrieval small fragments deposited inside the body by a bullet that has existed: and

(d) To identify, sometimes, the type of ammunition or weapon prior to post-mortem

(e) To see the bullet track inside the body.

In this case, there is an absence of exit wounds from both injuries, which complicates the determination of the location of cartridge components or bullets within the body. It is uncertain whether this information was ascertained by medical officers and subsequently the same was preserved.

It is imperative to note that the doctor's deposition indicated that after examination, the injured was referred to GIMS Hospital Gambat for X-Ray while the complainant party even injured did not disclose such fact in their deposition.

The X-ray report indicates the presence of multiple metallic densities in the region of the right hip and pelvis. The Medical officer who examined the injury pointed that the site of injury was located in the right inguinal region. However, given the presence of distinct areas in both regions, a serious discrepancy was observed in their appearance.

The inguinal Region (Groin) Located in the lower abdominal wall, just above the thigh crease. It includes the inguinal canal, which is important in hernias. So far Pelvic Region is concerned, it refers to the entire lower part of the torso, including the pelvic bones, reproductive organs, bladder, and rectum. It is a broader area than the inguinal region. The Medical dictionary of almost defines that Inguinal means pertaining to groin and Pelvis is the large body basin- shaped cavity formed by the innominate bones and sacrum, containing the protecting the bladder, rectum and organ of generation. Therefore, from this perspective, The medical evidence is inconsistent with respect to the seat of the injury, thereby casting doubt on the prosecution's version regarding the manner in which the incident occurred. Reliance is placed upon case of Khalil Ahmed and others v. The State, 2025 YLR 116.

1. The complainant's testimony, demonstrates a shift towards a more favorable perspective. The complainant stated that he, along with his witnesses Akash and Shahid, were present at the location where the accused party perpetrated the assault. Following the incident, they proceeded to the police station to obtain a letter of medical treatment. During the entry process at the police station, one Ashiq Hussain reported the incident to the police and got letter as per arrival entry No.11, produced by the Investigation Officer. The complainant did not disclose about the presence of the Ashiq during his deposition. The Investigation Officer did not include Ashiq as a witness. However, the prosecution did not call Ashiq as a witness during trial, despite his status as the first informer of the incident.

2. The ocular set attested to the presence of other witnesses independent of the villagers. Nevertheless, the investigative agency did not record the villagers' account or collect their evidence, as would be required to ascertain the facts independently.

3. According to the prosecution's case, the enmity is self-confessed; Furthermore, the complainant asserts that the FIR pertaining to the murder of a farmer was lodged against their own party by the accused persons. Reliance is placed upon case of Muhammad Rahim v. Bakhat Muhammad and others 2025 PCr.LJ 383, as it held by Learned Division Bench of Lahore High Court that "Enmity is double edged weapon that cuts both ways, if, on the other hand, it provides a motive for accused to commit the occurrence in question, on the other hand, it equally provides an opportunity for the first informant to implicate his enmity".

4. Pursuant to the complainant, the patient was initially transported to the Agra hospital after getting letter from Police, subsequently transferred to the civil hospital in Larkana; and then referred to a Karachi hospital on the following day. The Complainant did not disclose that the attending medical officer at the Agra hospital had referred them for an X-ray at Gambat, though the records indicated that the patient had been referred to Gambat for X-ray. The injured has remained completely silent regarding whether he was examined by a medical officer, referred to a radiologist, or transported to Karachi or Larkana. However, the doctor, in his testimony, stated that at the time of examination, the injured was conscious. It is a matter of great astonishment that, except for the complainant's statement, there is no record indicating that the injured was referred to Larkana, whereas the doctor testified that the injured was personally shifted to Karachi. The injured did not provide any details regarding the anatomical location of the injuries, which he sustained. The aforementioned case demonstrates significant discrepancies in the prosecution's case. Reliance is placed upon case of Muhammad Rahim v. Bakhat Muhammad and others 2006 SCMR 1217.

5. The property in question consisted of ten empty cartridges and six empties of KK. These items were secured from the site of the incident by the investigation officer on 05-06-2021; and subsequently sent for analysis via road certificate dated 11-06-2021. On same day, the analyzer received the property. However, there are no records available indicating whether the property was either lawfully retained or not, as the records indicate an absence of any entries.

6. At the time of the site visit, the Investigation Officer maintained records of both arrival and departure. However, the arrival entry did not disclose the formalities that were carried out during the visit, as it failed to include such details in the aforementioned arrival record. The rule is unambiguous in this respect. It is imperative to note that the investigation officer also secured empties; therefore, the same should be noted on the entry. The Investigation Officer further stated that the memo. of place of incident was prepared by one official WHC, but he was not present at the scene, as affirmed by him. The Rule 22.70 of Chapter XXII, Volume III of Police Rules, 1934 provides mechanism that every article placed in store room shall be entered in register and the removal of any such article shall be noted in the appropriate column.

7. There is two days delay in FIR while the complainant party reached at the day of incident, it is also a question that when the injured was discharged from the Karachi hospital. As, such delay is serious lapse until and unless explained but in instant case, no explanation was provided. Reliance is placed upon case of Abdul Ghafoor v. The State 2022 SCMR 1527 and Nadeem alias KALA v. The State, 2018 SCMR 153.

8. The complainant party arrived at the conclusion that the injured had sustained an injury, as evidenced by the presence of blood oozing from the wound. This finding was affirmed by the medical officer, who acknowledged. However, the investigation agency or prosecution did not manage to procure any clothing from the injured to serve as a collaborative piece of evidence. Reliance is placed upon case of Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319.

9. Once, the Court believed the evidence and convicted the accused while on the other part on same set of evidence acquitted the co-accused on the point that they have no active role, amount to disbelieve the set of evidence, so evidence or material did not read in Toto and such discrepancy is highlighted. Reliance is placed upon the case reported in PLD 2019 SC 527 in which Honourable Apex Court has held in Para 21 as under;

2025 Y L R 2452

[Sindh]

Before Muhammad Shafi Siddiqui and Omar Sial, JJ

Mst. Razia Roshan---Appellant

Versus

Mst. Farheena Ali and others---Respondents

High Court Appeals Nos. 107 and 108 of 2019, decided on 5th March, 2024.

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

----Ss. 32, 34 & 35---Specific Relief Act (I of 1877), S. 12---Contingent contract---Specific performance, seeking of---Scope---While entering into agreement it was disclosed to the buyer/vendee that there were tenants in the property, whom the seller /vendor would vacate within two months from the date of the agreement---Both the vendee and the vendor filed their respective suits seeking the performance of the agreement to sell and cancellation of the same agreement---Trial Court (Single Judge of High Court ) decreed the suit seeking cancellation of the agreement and dismissed the other one---Validity---Though not explicitly stated, the contract between the parties appeared to be a contingent contract for that the execution of the sale deed would only occur when the tenements were vacated---The agreement to sell was to proceed once the property was rid of the tenants---The contract, however, did not state what will happen if the tenants were not vacated---The only outcome given was that the time for performance would be mutually agreed upon if the tenants did not vacate---Section 32 of the Contract Act, 1872 stipulates that contingent contracts, to do or not to do anything if an uncertain future event happens, cannot be enforced by law unless and until that event has occurred; if the event becomes impossible, such contracts become void---Section 34 stipulates that if the future event on which a contract is contingent is the way in which a person will act at an unspecified time, the event shall be considered to become impossible when such person does anything which renders it impossible that he should so act within any definite time, or otherwise than under further contingencies---Section 35 stipulates that contingent contracts to do or not to do anything if a specified uncertain event happens within afixed time, become void if, at the expiration of the time fixed, such event has not happened or if, before the time fixed, such event becomes impossible---In the present case, two months was the time frame within which vendor would try to get the tenants vacated; said time frame was mutually extended for two months, however later vendee was informed that the tenants refused to leave and, therefore, the event upon which the contract was contingent could not happen anymore---In terms of S.35 of the Contract Act, 1872, the contract was frustrated---Remedy of specific performance is discretionary and cannot be claimed as of right by any party---No illegality or infirmity in the impugned judgment had been noticed---Appeal was dismissed accordingly.

Mrs. Zakia Hussain v. Syed Farooq Hussain PLD 2020 SC 401 and Liaquat Khan v. Falak Sher PLD 2014 SC 506 ref.

Muhammad Asia Awan v. Dawood Khan and others 2021 SCMR 1270 distinguished.

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

----Ss.12 & 39---Contract Act (IX of 1872), S. 64---Suit for specific performance---Balance sale consideration---Willingness and readiness of buyer, absence of---Scope---In the present case, the agreement to sell was entered into in the year 2004, which was rescinded within nine months, yet vendee /appellant, in the year 2017( i.e. thirteen years after the agreement to sell was entered into) for the first time showed that she was willing and able to complete the transaction---Even an application accompanying a pay order was produced in Court at the time of the final arguments in the suit, which was an afterthought and her attempt to strengthen the case---No illegality or infirmity was noticed in the impugned judgment---Appeal was dismissed accordingly.

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

----S. 64---Specific Relief Act (I of 1877), S. 39---Contract Act (IX of 1872), S. 64---Suit for specific performance---Balance sale consideration---Willingness and readiness of buyer, absence of---Scope---Return of earnest money paid---Entitlement---Section 64 of the Contract Act, 1872, stipulates that the party rescinding a voidable contract shall, if he has received any benefit there under from another party to such contract, restore such benefit, so far as may be, to the person from whom it was received---In view of said provision, the appellant / vendee was entitled to receive back Rs. 1 million that she had paid as advance money, which was to be returned to her with a mark-up of 5% per annum by vendor / respondent---Appeal was disposed of accordingly.

Abdul Qayyum Abbasi for Appellant.

Shoukat Hayat for Respondent.

Sandeep Malani, A.A.G, Sindh for Respondent No. 4.

Date of hearing: 27th February, 2024.

Judgment

Omar Sial, J.---On the 20th of February 2004, Farheena Alvi agreed to sell her property to Razia Roshan upon the terms and conditions of an agreement to sell, which they executed the same day. The total sale consideration agreed was Rs. 10,000,000. An advance of Rs. 1,000,000 was given to Farheena, while the balance amount was to be paid when the sale deed would be registered. It was disclosed to the buyer that there are tenants in the property, and if Farheena could not vacate them within two months from the date of the agreement, then the "time for payment and execution of Sale Deerd can be extended". On May 12, 2004, the parties mutually extended this period of two months till July 15, 2004. Farheena could not have the tenants vacated, prompting Razia's counsel to send a legal notice on August 21, 2004, calling upon Farheena to get the property vacated. On October 16, 2004, Farheena's counsel wrote to Razia, informing her that one of the two tenants had refused to leave. She offered that Razia take back the Rs. 1,000,000 advance payment or buy the property with the tenant. The offer was declined vide Razia's counsel's letter dated October 20, 2004. In the same letter, the counsel wrote that his client has the balance sale consideration with him and that a sale deed should be executed for the property without the tenant. On October 27, 2004, Farheena's counsel wrote to Razia's counsel, informing him that the agreement to sell stood frustrated and rescinded. Suit No. 1253 of 2004 was filed by Razia, seeking the performance of the agreement to sell, whereas Suit No. 1338 of 2004 was filed by Farheena, seeking cancellation of the agreement. A learned Single Judge of this Court on December 3, 2018, decreed Suit No. 1338 of 2004 and dismissed Suit No. 1235 of 2004. Razia Roshan, unhappy with the dismissal, has preferred this appeal.

1. We have heard the learned counsel for both parties and have perused the record. Their respective arguments are not being reproduced but are reflected in our observations and findings below.

2. Though not explicitly stated, the contract between the parties appears to be a contingent contract. The execution of the Sale Deed would only occur when the tenements were vacated. The agreement to sell was to proceed once the property was rid of the tenants. The contract, however, does not state what will happen if the tenants are not vacated. The only outcome given is that the time for performance will be mutually agreed upon if the tenants do not vacate. As the learned Single Judge points out, section 32 of the Contract Act of 1872 provides that contingent contracts to do or not to do anything if an uncertain future event happens cannot be enforced by law unless and until that event has occurred. If the event becomes impossible, such contracts become void. Section 34 provides that if the future event on which a contract is contingent is the way in which a person will act at an unspecified time, the event shall be considered to become impossible when such person does anything which renders it impossible that he should so act within any definite time, or otherwise than under further contingencies. Section 35 stipulates that contingent contracts to do or not to do anything if a specified uncertain event happens within a fixed time become vold if, at the expiration of the time fixed, such event has not happened or if, before the time fixed, such event becomes impossible.

3. In the current case, two months was the time frame within which Farheena would try to get the tenants vacated. This time frame was mutually extended until October 16, 2004, when Razia was informed that the tenants refused to leave and, therefore, the event upon which the contract was contingent could not happen anymore. In terms of section 35, the contract was frustrated. It is now well established that the remedy of specific performance is discretionary and cannot be claimed as right by any party. Reference may be made to Mrs Zakia Hussain v. Syed Farooq Hussain (PLD 2020 SC 401) and Liaquat Khan v. Falak Sher (PLD 2014 SC 506). In the current case, the appropriate disclosure was made by Farheena, i.e., there are tenants in the property, and she would try to vacate them before the Sale Deed was executed. Razia was always aware of the situation and wanted vacant possession of the property. The parties envisaged that this task was challenging and, therefore, agreed to an extension in time for the registration of the Sale Deed upon mutual agreement. One of the two tenants was vacated, which signifies the efforts made by Farheena, however, one tenant refused to leave. Following the legal course to vacate them would have been a protracted exercise dependent upon conditions to get it vacated. For this reason, she wrote to Razia, telling her that she had failed to get the tenants out and, therefore, the contract stood frustrated.

2025 Y L R 2484

[Sindh (Hyderabad Bench)]

Before Amjad Ali Sahito and Khadim Hussain Soomro, JJ

Anoop Kumar and others---Applicants

Versus

The State and another---Respondents

Criminal Bail Applications Nos. D-71, D-72, D-73, D-74, D-75 and D-80 of 2024, decided on 31st October, 2024.

Criminal Procedure Code (V of 1898)---

----Ss. 498 & 498-A---National Accountability Ordinance (XVIII of 1999), Ss. 9, 10, 18(g) & 24(b)---Corruption and corrupt practices---Misappropriation or embezzlement of public funds---Ad-interim pre-arrest bail, recalling of---Allegation against the petitioners was that of misappropriating the pension funds of the officers of District Accounts Office---Record reflected that as per the statement of allegations, officials of the District Accounts Office signed and processed the fake bills in respect of pension and refund but the same were not processed as per the Accounting Policies and Procedures Manual issued by Government of Pakistan, which was applicable to the Federal as well as Provincial Governments---Applicant "MNB" as per allegations was a signatory of 850 bills amounting to Rs. 610, 664, 440 and the amount was posted in the fake bank accounts with the collusion of bank employees/ applicants "QB" and "GM" and other co-accused, such fake accounts were stated to be in the names of various individuals who never remained in government job and misappropriated the said amount---Furthermore 5433 pension bills and 130 refund bills were recovered during the house search of co-accused---During investigation only 1756 pension bills/vouchers out of 5433 were sorted out which pertained to MCB Bank and the applicant "MNB", co-accused signed and processed the same at the relevant time of their incumbencies---During the investigation, it surfaced that 130 bulldozers were repaired by the Agricultural Department and payment was made from pensioner's accounts---Applicant "IM", who was posted as Director, AE&WM, approved the fake refund bills/vouchers in favour of dummy companies allegedly owned by the contractors, who were the three applicants and other co-accused---Record showed that numerous pension and refund bills were signed and processed improperly, violating the Accounting Policies and Procedures Manual issued by the Government of Pakistan---Documentary evidence linking the applicants to those fraudulent activities was substantial---Allegations suggested collusion between the applicants and bank employees to create fake accounts for illicit transactions---This demonstrated a coordinated effort to engage in fraudulent activities---Investigation had revealed a vast number of fraudulent transactions, including 5433 pension bills and 130 refund bills, with a significant portion being directly linked to the applicants---Said quantity indicated a systematic approach to fraud rather than isolated incidents---Nature of the allegations and the potential impact on public confidence in government institutions warranted a cautious approach---Applicants had not provided sufficient evidence to counter the serious allegations against them or to demonstrate their innocence and negate the version of NAB authorities---At the bail stage, only tentative assessment was to be made and nothing had been brought on record by the applicants to show any ill-will or mala fide on the part of the complainant/Investigating Officer of the case which was the requirement for grant of pre-arrest bail---Moreover, there was sufficient material collected by the Investigating Officer in the shape of bills, vouchers and other documents which showed that the District Account officer in connivance with other Government Officers/ Servants, employees of private bank and private persons were involved in the alleged offence and inflicted loss to the government exchequer in the tune of Rs. 3.2 billion---Applicants/ accused had failed to establish a case for confirmation of their ad-interim pre-arrest bail already granted to them---Petitions for pre-arrest bail were dismissed, in circumstances.

Syed Akhtar Hussain Shah v. National Accountability Bureau through Chairman, Islamabad and 3 others 2021 MLD 783; Saad Sumair v. National Accountability Bureau (NAB) through Chairman and 2 others PLD 2022 Islamabad 371 and Muhammad Safdar v. Chairman NAB and 3 others 2022 PCr.LJ 101 ref.

Rana Abdul Khaliq v. The State 2019 SCMR 1129 rel.

Shahnawaz Dahri for Applicants (in Criminal Bail Applications Nos. D-71 and D-73 of 2024).

Zahid Ali Khoso for Applicant (in Criminal Bail Application No. D-72 of 2024).

Hameedullah Dahri for Applicant (in Criminal Bail Application No. D-74 of 2024).

Aijaz Ali Lakho for Applicant (in Criminal Bail Application No. 75 of 2024).

Masood Rasool Babar Memon for Applicant (in Criminal Bail Application No. D-80 of 2024).

Sattar Muhammad Awan, D.P.G, Jangu Khan Rajput, Niaz Hussain Mirani, Special Prosecutors NAB along with Javed Akbar Riaz, D.G NAB Karachi, Irfan, D.D., Adnan Hafeez Abbasi, D.D. Kashir Noor, Additional Director and Zeeshan Tebani, D.D. NAB for the State.

Bashir Ahmed Almani, Assistant Attorney General for Pakistan.

Dates of hearing: 24th and 29th October, 2024.

Order

Amjad Ali Sahito, J.--- Through this common order, we intend to dispose of the above captioned Criminal Bail Applications, whereby the applicants/ accused are seeking pre-arrest bail in a Reference bearing No.02 of 2023 [Re-The State v. Mushtaque Ahmed Shaikh and others] filed under section 18[g] read with section 24[b] of NAB Ordinance, 1999, which is pending adjudication before Accountability Court-II, Hyderabad. Earlier, their respective pre-arrest bail applications were dismissed by the learned trial Court.

1. The relevant facts as set out in the aforementioned reference are that an authorized inquiry, on the allegations of misappropriation of pension funds by the officers of District Accounts Office Hyderabad and others, was conducted by the NAB authorities, which later on was converted into investigation. During the investigation, it was discovered that applicant/accused Nazir Bhutto being Additional District Accounts Officer allegedly committed misappropriation of Government funds, criminal breach of trust and money laundering of billions of rupees by sanctioning fake pension bills in connivance with co-accused which included bankers. Subsequently, he deposited such bills in bank accounts specifically opened for this purpose and withdrew the amount in connivance with accused Junejo Bahadur (Bank Manager MCB), bank account holders and Aijaz Dawach. He also illegally benefited from the amount. Accused Nazir Bhutto joined during the inquiry stage later he absconded at the investigation stage.

2. It was also discovered during investigation that applicant/accused Imdad Memon, misappropriated millions of rupees during his tenure as Director of Agricultural Engineering and Water Management (AE&WM) from 2010 to 2014. He approved fake refund bills totaling Rs. 250 million for private contractors, which were paid using pension funds with the connection of District Accounts Office officers. Most of these funds were deposited into the official AE&WM account, from which Rs. 1.2 billion was withdrawn in cash via cheques signed by Memon. Further, he received millions in his personal bank accounts from these private contractors' accounts.

3. During the investigation, it was discovered that applicant/accused Anoop Kumar, the applicant/accused, operated three fake companies and submitted 41 bills totaling Rs. 62.83 million, but he did not participate in the investigation. His brother, Annad Saroop, another accused, claimed Anoop was unable to move due to heart issues and provided medical reports. Annad Saroop himself operated one fake company and submitted three bills totalling Rs. 3.9 million. While applicant/accused Shafi Muhammad of having one fake company and claimed 4 bills amounting to Rs.4 Million. However, applicant/accused Muhammad Iqbal could not justify the payments received into his account in respect of the alleged supply of spare parts to the Agriculture Department. Applicants/accused Qadir Bux and Gul Muhammad are Ex-Cashiers in the MCB Nausheroferoz Branch. Applicant/ accused Qadir Bux during the investigation could not justify the allegation for misusing of his ID and that co-accused Junejo Bahadur Ali and Siraj Ali Mastoi were involved in the pension payments in the account of untraceable sugarcane payment without any instrument. Similarly, the applicant/ accused Gul Muhammad, failed to justify the allegations of misusing his ID and that co-accused Junejo Bahadur Ali and Siraj Ali Mastoi were implicated in pension payments related to untraceable sugarcane payments, which were made without any supporting documents.

4. Mr. Hameedullah Dahri, counsel for applicant Muhammad Nazir Bhutto, argued that the applicant/accused is innocent and has falsely been implicated with mala fide intention in this case to disrepute him. The allegations are based on assumptions and that the investigation has been dishonest, with key facts suppressed. The Investigating Officer failed to gather evidence showing that applicant Muhammad Nazir Bhutto received any financial benefit or illicit funds in his account. He pointed out that the allegedly fake bills were recovered from the house of co-accused Mushtaque, which means they cannot be used against Bhutto, who has no connection to them. The alleged bills, which are claimed to have been signed by applicant Bhutto, were not verified by the Investigating Officer against specimen signatures, as such, this inaction prevented to a just and fair conclusion. In support of his contention, learned counsel has relied upon the case of Syed Akhtar Hussain Shah v. National Accountability Bureau through Chairman, Islamabad and 3 others [2021 MLD 783], Saad Sumair v. National Accountability Burea (NAB) through Chairman and 2 others [PLD 2022 Islamabad 371] and Muhammad Safdar v. Chairman NAB and 3 others [2022 PCr.LJ 101].

5. Mr. Aijaz Ali Lakho, learned counsel for applicant/accused Imdad Memon, argued that Imdad Memon, a Grade-20 officer serving as D.G. of the Agriculture Engineering Department in Sindh, has properly sanctioned the refund bills following SPPRA Rules 2010, utilizing emergency provisions for repairs to bulldozers during a flood emergency. He argued that the Secretary of the Agriculture Department approved the repairs, as funds were lacking in the designated budget due to outstanding dues. The work was conducted with prior approval from the Secretary and adhered to procurement rules by sourcing spare parts from various firms. He contended that the Investigating Officer failed to adequately investigate and incorporate relevant materials into the case record, asserting that applicant Imdad Memon had no involvement in any embezzlement and acted lawfully under the guidance of his superiors.

6. Messrs Masood Rasool Babar Memon and Zahid Ali Khoso advocates on behalf of applicants Qadir Bux and Gul Muhammad argued that there is no connection between them and the alleged funds withdrawn from the pension refund voucher. They emphasized the lack of evidence for illegal gain and that undue favor does not constitute an offence of corruption. There are no allegations of personal gain or asset accumulation beyond known income sources, suggesting no misuse of authority or involvement in corrupt practices.

7. Mr. Shahnawaz Dahri, learned counsel representing applicants/accused Anoop Kumar, Muhammad Iqbal, and Shafi Muhammad Memon, argued that they are contractors and that the Investigating Officer exceeded his authority by investigating matters related to the Agriculture Department, which was outside the scope of his mandate regarding pension refunds. He emphasized that this renders the investigation invalid and grounds for bail. Learned counsel has highlighted that there were no complaints about the applicants' work on machinery repairs or the procurement of spare parts during the emergency. The Agriculture Department has not contested the work performed, and any irregularities by District Accounts officials are not the responsibility of the applicants. Payments were made based on vouchers prepared from sanctioned orders approved by Director Imdad Memon.

8. Learned counsel for the applicants/accused claimed innocence of the applicants and their false implication with mala fide intention in this case to disrepute them. They claimed that the allegations were based on assumptions and that the investigation had been dishonest, with key facts suppressed. The evidence is solely documentary and is held by the Investigating Officer, eliminating any concerns about tampering. There are about 103 prosecution witnesses, as such, their examination will take sufficient time in the conclusion of the trial. They lastly submitted that if the ad-interim pre-arrest bail of the applicants/accused is not confirmed, they will be humiliated, disgraced, harassed and tortured at the hands of respondents, hence, prayed for confirmation of bail.

9. Conversely, learned Special Prosecutors, NAB, have vehemently opposed the grant of bail to the applicants/accused on the ground that there is sufficient evidence against them to prove that they have committed the offence with which they are charged in NAB Reference beyond a reasonable doubt. The officers of District Accounts Office Hyderabad in connivance with other co-accused, who are government servants, employees of private banks and private persons, are involved in the offence of illegal gratification, misappropriation of government pension funds, misuse of authority, criminal breach of trust and money laundering. They have given a loss of Rs.3.2 billion to the public at large. They lastly contended that no mala fide on the part of NAB authorities or Investigating Officer has been pointed out, hence, the applicants/accused are not entitled for the concession of pre-arrest bail.

10. Heard and perused.

11. The record reflects that as per the statement of allegations, officials of the District Accounts Office, Hyderabad signed and processed the fake bills in respect of pension and refund but the same were not processed as per the Accounting Policies and Procedures Manual (APPM) issued by Government of Pakistan, which is applicable on the Federal as well as Provincial Governments. Applicant Muhammad Nazir Bhutto as per allegations is a signatory of 850 bills for amounting to Rs.610,664,440 and the amount was posted in the fake bank accounts with the collusion of bank employees applicants Qadir Bux and Gul Muhammad and other co-accused, such fake accounts are stated to be in the names of various individuals who never remained in government job and misappropriated the said amount. 5433x pension bills and 130x refund bills were recovered during the house search of co-accused Mushtaque Ahmed Shaikh investigation and for investigation only 1756 x pension bills/vouchers out of 5433x were sorted out which pertain to MCB Bank and the applicant Muhammad Nazir Bhutto, co-accused Mushtaq Ahmed Shaikh and Allah Bachayo Jatoi signed and processed the same at the relevant time of their incumbencies. During the investigation, it surfaced that 130 Bulldozers were repaired by the Agricultural Department and payment was made from pensioner's accounts. Applicant Imdad Memon, who was posted as Director, AE&WM, approved the fake refund bills/vouchers in favour of dummy companies allegedly owned by the contractors, who are the applicants namely, Anoop Kumar, Muhammad Iqbal and Shafi Muhammad and other co-accused.

12. The record shows that numerous pension and refund bills were signed and processed improperly, violating the Accounting Policies and Procedures Manual (APPM) issued by the Government of Pakistan. The documentary evidence linking the applicants to these fraudulent activities is substantial. The allegations suggest collusion between the applicants and bank employees to create fake accounts for illicit transactions. This demonstrates a coordinated effort to engage in fraudulent activities. The investigation has revealed a vast number of fraudulent transactions, including 5433 pension bills and 130 refund bills, with a significant portion being directly linked to the applicants. This quantity indicates a systematic approach to fraud rather than isolated incidents. During the investigation, a significant quantity of pension bills/vouchers was recovered from the house of co-accused Mushtaque Ahmed Shaikh. This evidence reinforces the connections between the applicants and the alleged fraudulent activities. The nature of the allegations and the potential impact on public confidence in government institutions warrant a cautious approach. The applicants have not provided sufficient evidence to counter the serious allegations against them or to demonstrate their innocence and negate the version of NAB authorities.

13. As per the investigation, with approval from the SBP, fake pension bills were deposited into accounts not associated with the names on the bills, violating banking rules. Bank officials and other accused individuals facilitated these deposits into unrelated accounts. However, none of the related accused denied such transactions into fake accounts in respect of pension and refund bills except the mere plea of their innocence and denial of the signatures by applicant Muhammad Nazir Bhutto on the bills.

14. During the course of the investigation into pension matters, it was surfaced that millions of rupees had been embezzled by the officers of the Agriculture Department in the name of repairing of 130 Bulldozers, as such inquiry was initiated and the Investigating Officer recorded the statement in terms of section 161 Cr.P.C. of different witnesses including Mr.Farrukh Rasheed Ansari, D.G. Agriculture Engineering, Government of Sindh, who stated that repair of near about 130 bulldozers was made with the million of rupees but as per the statement of Mr. Ansari that generally Field Engineers of the concerned field submit their demands for the spare parts as and when required but the record provided to NAB does not have any demand from concerned officers. As such, no demand was made from the Engineers of Agriculture Department, hence, prima facie, it appears that the fake bills were prepared in respect of repairs of the bulldozers. When we confronted the Investigating Officer of the case about whether you have obtained details of equipment used in the agriculture field along with the lock book, to which, he has relied upon certain documents which were collected by him during the investigation; however, learned counsel for the applicants also produced copies that the same were purchased following the law but when it was confronted that how they have used the Bulldozers after repair, they replied that during the flood of 2009-2010, the Bulldozers were utilized but no such record was produced to believe that the Bulldozers were shifted from any office of the Agricultural Department to concerned site even the officers failed to produce any lock book, vouchers of purchasing diesel and any demand made by the Government of Sindh to believe that after repair of the Bulldozers, they were utilized/used at the sites. Even they failed to produce documentary evidence or any statement of the truck driver through whom they/accused shifted the Bulldozers at the site.

15. During the course of Investigation, the statement was prepared by the Investigating Officer of the case, which reveals that apart from co-accused, applicant Anoop Kumar benefited with amount of Rs.62,830,940/-for the fake Companies i.e. All Enterprises, Anand & Company and Global Enterprises, applicant Muhammad Iqbal with amount of Rs.75,031,497/- for Ramzeez Brothers Company and applicant Shafi Muhammad with amount of Rs.7,059,969/- for Shafi & Sons Company. The actions of the Agriculture Department officials in preparing fake bills have resulted in a loss of millions of rupees to the government.

16. So far the applicant Muhammad Nazir Bhutto claimed he did not sign any documents/bills or vouchers, as during the road incident his right hand was not working and he used to sign through his left hand. However, the Investigating Officer has relied on the documents/bills or vouchers collected by him during the investigation and as an example he presented evidence showing that he signed a bill for Rs.794,000 in the name of Mr. Shahid Hussain, which was mentioned in the Daily Invoice of Pension at serial No.362 and referred to the State Bank of Pakistan. Despite being prepared in Shahid Hussain's name, the amount was deposited in an account under the name of Miss Sheeza at MCB Bank Limited, Station Road Dadu Branch, with the apparent collusion of bank employees.

2025 Y L R 2511

[Sindh]

Before Jan Ali Junejo, J

Sultan Ahmed---Applicant

Versus

The State---Respondent

Criminal Revision Application No. 04 of 2021, decided on 9th April, 2025.

Penal Code (XLV of 1860)---

----S. 489-F---Dishonestly issuing a cheque---Complainant got registered FIR against accused for issuing a cheque dishonestly---Accused was convicted by the Trial Court and lower Appellate Court maintained the conviction and sentence---Validity---As per record, the applicant issued two cheques each for Rs. 7 lacs, dated 12-01-2019, drawn on Meezan Bank, to fulfill a financial obligation and both were dishonored due to insufficient funds---Defence plea of coercion was an afterthought, as the applicant failed to present any credible evidence documentary or oral to support his claim that the cheques were obtained under duress at Police Station in presence of Police Officer---Applicant's failure to examine himself on oath under S.340(2),Cr.P.C., or to produce any independent witness to corroborate his stance further weakened his case---Contradictions in the applicant's statements, particularly his own application to Citizen-Police Liaison Committee, where he admitted issuing postdated cheques and merely requested time to pay, negated his claim of coercion---Delay in lodging the FIR was convincingly explained by the prosecution and the dishonor of cheques was corroborated by Bank Officials and documentary evidence, including return memos and confirmation reports---Trial Court and Appellate Court properly evaluated the evidence and there was no legal infirmity, misreading of evidence, or violation of due process that would justify interference by the High Court---Essential ingredients of S.489-F, P.P.C., i.e. issuance of cheque, dishonesty, fulfillment of an obligation and subsequent dishonor were fully met, warranting conviction---In the present case, the prosecution successfully proved all the essential elements constituting an offence under S.489-F, P.P.C---However, the applicant failed to substantiate his defence, thereby confirming the offence against him---Both the Trial Court and the Appellate Court had correctly evaluated the evidence and applied the relevant law in convicting the applicant---Criminal revision application was dismissed, in circumstances.

Muhammad Sultan v. The State 2010 SCMR 806 rel.

Applicant in person.

Ali Nasir for the Complainant.

Miss Hina, Assistant PG for the State.

Date of hearing: 21st March, 2025.

Judgment

Jan Ali Junejo, J.---This Criminal Revision Application has been filed by the Applicant, Sultan Ahmed, under Section 435 read with Section 439 of the Cr.P.C., seeking to set aside the concurrent findings of conviction and sentence recorded by the learned Vth Judicial Magistrate, Karachi Central, in Criminal Case No.1253/2019 and maintained by the learned Additional Sessions Judge-VII/MCTC-02, Karachi Central, in Criminal Appeal No.14/2020. The Applicant was convicted under Section 489-F of the Pakistan Penal Code (P.P.C) and sentenced to two years of rigorous imprisonment with a fine of Rs. 15,000/-. In case of default, he was to undergo one month of simple imprisonment.

1. The prosecution's case was that the Applicant, in a business partnership with the Complainant, Sarfaraz Yahya, executed an agreement dated 15-05-2018, under which the Complainant invested Rs. 10 million in an import business. Subsequently, due to disputes, the parties executed a second agreement dated 02-01-2019, wherein the Applicant agreed to return Rs. 99,55000 lacs through 15 postdated cheques. Out of these, two cheques__Cheque No. 077082341 dated 12-01-2019 for Rs. 7 lacs and Cheque No. 077082346 dated 12-01-2019 for Rs. 7 lacs, both drawn on Meezan Bank, Nazimabad No. 3 Branch, Karachi__were presented for encashment at Faysal Bank, Nazimabad Branch, Karachi, on 23-01-2019 but were dishonored on 24-01-2019 due to insufficient funds. The Complainant, upon confronting the Applicant, was allegedly threatened, leading to the registration of FIR No. 133/2019 at P.S. Nazimabad, Karachi, under Sections 489-F, 420, 406, 34 P.P.C.

2. During the trial, the prosecution examined seven witnesses to establish its case:

1. PW-01 Complainant Sarfaraz Yahya (Exh.05)__Produced:

o Agreement dated 15-05-2018 (Exh.05/A)

o Agreement dated 02-01-2019 (Exh.05/B)

o Cheque No. 077082341 dated 12-01-2019 (Rs. 7 lacs) (Exh.05/C) along with return memo. (Exh.05/D)

o Cheque No. 077082346 dated 12-01-2019 (Rs. 7 lacs) (Exh.05/E) along with return memo. (Exh.05/F)

o Copy of FIR (Exh.05/W)

2. PW-02 Farhan (Meezan Bank Manager) (Exh.06)__Produced:

o Verification letter from I.O regarding dishonored cheques (Exh.06/A)

3. PW-03 Khalid Hussain (Faysal Bank Manager) (Exh.07)__ Produced:

o Confirmation report on dishonored cheques (Exh.07/B)

4. PW-04 ASI Muhammad Naeem (First I.O.) (Exh.08)__ Produced:

o Entries of his visit to banks for verification (Exh.08/A)

5. PW-05 Syed Muhammad Asim Ali (Witness to Agreements) (Exh.09) __Testified that:

o He was present during execution of agreements dated 15-05-2018 and 02-01-2019.

o He witnessed cheques being handed over to the Complainant by the Applicant.

6. PW-06 SIP Sarfaraz Alyana (Second I.O.) (Exh.10)__ Produced:

o Investigation reports and copies of documents collected from banks and parties.

7. PW-07 SIP Abdul Karim (Exh.12)__Produced:

o Statements of complainant recorded during investigation.

The prosecution closed its evidence at Exh.13. The statement of the Applicant Sultan Ahmed was recorded under Section 342, Cr.P.C., at Exh.16, wherein he:

· Denied the allegations, stating that he never voluntarily issued the cheques.

· Claimed that he was forced to sign 18 cheques at P.S. Nazimabad in presence of SIP Abdul Karim.

· Alleged that the Complainant coerced him into signing blank stamp papers and took away the title documents of his house.

· Contended that he had filed Civil Suit No. 865/2019 before the Hon'ble High Court for cancellation of cheques and stamp papers.

· Asserted that the agreements were fabricated and prepared after the dispute arose.

· Maintained that the FIR was lodged with considerable delay, without any plausible explanation.

· Objected that the place of issuance of cheques was not mentioned in the FIR, making the prosecution's case weak.

The Applicant, despite making several claims in his defense, did not opt to examine himself on oath under Section 340(2) Cr.P.C. nor did he produce any witness or documentary evidence to support his defense. The burden was upon the Applicant to prove that the cheques were taken under coercion, but he failed to produce any independent witness to substantiate this claim. No complaint, FIR, or order under Section 22-A, Cr.P.C. was produced to support the allegation that he was forced to sign cheques at the police station. His own application to CPLC Chief Sindh (Exh. S-49) contradicted his defense, as he acknowledged issuing postdated cheques and merely requested more time to pay. His failure to produce any bank statement or financial records to contradict the prosecution's evidence further weakened his stance. Accordingly, his defense plea remained unsubstantiated and was rightly discarded by the learned trial and appellate Courts.

1. The Applicant, appearing in person, argued that he is innocent and has been falsely implicated due to a business dispute. He claimed that he was coerced into signing 18 cheques at P.S. Nazimabad in the presence of SIP Abdul Karim, and the Complainant later misused two of these cheques. He further contended that before the registration of the FIR, he had filed Civil Suit No. 865/2019 for the cancellation of these cheques and stamp papers. He highlighted that there was a delay in lodging the FIR, and contradictions existed in the Complainant's statements regarding the total investment amount, making the case doubtful. He further pointed out that the 2nd agreement dated 02-01-2019 appeared dubious, as the stamp paper was issued on 09-01-2019. He prayed for acquittal, arguing that the prosecution had failed to establish its case beyond a reasonable doubt.

2. Learned counsel for the Complainant, Mr. Ali Nasir, opposed the revision, contending that the conviction was rightly recorded as the Applicant issued cheques dishonestly to repay an investment obligation, which were dishonored. He argued that the Applicant's defense of coercion was an afterthought, as he failed to provide any direct evidence of coercion. He further submitted that both agreements dated 15-05-2018 and 02-01-2019 were executed voluntarily and that the dishonor of cheques was supported by bank records and witness testimony. He also pointed out that the Applicant himself admitted his business dealings with the Complainant and issuance of postdated cheques in his application to CPLC Chief Sindh (Exh. S-49). Lastly, he argued that the delay in lodging the FIR was well explained and that the essential ingredients of Section 489-F P.P.C were fully established.

3. Miss Hina, Assistant Prosecutor General, supported the impugned judgments, arguing that both courts below correctly evaluated the evidence and that the prosecution successfully proved its case beyond a reasonable doubt. She contended that the Applicant's defense lacked credibility, as he failed to bring any independent evidence to support his claim of coercion. She further submitted that criminal intent (mens rea) was evident, as the Applicant knowingly issued cheques despite having insufficient funds. She emphasized that there was no legal infirmity or procedural irregularity in the judgments of the Courts below and prayed for dismissal of the revision application.

4. After careful evaluation of the entire record, it is evident that the prosecution successfully established its case beyond a reasonable doubt, proving that the Applicant issued the subject cheques (Nos. 077082341 and 077082346, each for Rs. 7 lacs, dated 12-01-2019, drawn on Meezan Bank, Nazimabad Branch, Karachi) to fulfill a financial obligation, and both were dishonored due to insufficient funds. The defense plea of coercion was an afterthought, as the Applicant failed to present any credible evidence__ documentary or oral__to support his claim that the cheques were obtained under duress at P.S. Nazimabad in presence of SIP Abdul Karim. The Applicant's failure to examine himself on oath under Section 340(2) Cr.P.C. or to produce any independent witness to corroborate his stance further weakens his case. The contradictions in the Applicant's statements, particularly his own application to CPLC Chief Sindh (Exh. S-49), where he admitted issuing postdated cheques and merely requested time to pay, negate his claim of coercion. The delay in lodging the FIR was convincingly explained by the prosecution, and the dishonor of cheques was corroborated by bank officials and documentary evidence, including return memos and confirmation reports. The learned trial court and appellate court properly evaluated the evidence, and there is no legal infirmity, misreading of evidence, or violation of due process that would justify interference by this Court. The essential ingredients of Section 489-F P.P.C__issuance of cheque, dishonesty, fulfillment of an obligation, and subsequent dishonor__were fully met, warranting conviction. In similar circumstances, in the case of Muhammad Sultan v. The State (2010 SCMR 806), the Honourable Supreme Court of Pakistan upheld the conviction and observed: "A perusal of Section 489-F of the Pakistan Penal Code (P.P.C) reveals that the provision applies only if the prosecution successfully establishes the following conditions:

1. Issuance of a cheque.

2. Dishonest intent behind issuing the cheque.

3. Purpose of issuance must be either:

a) Repayment of a loan, or

b) Fulfillment of an obligation (which broadly applies to lawful agreements, contracts, services, promises, or any act that legally binds a person to perform).

4. Dishonor of the cheque upon presentation.

However, the accused can present a valid defense by proving:

2025 Y L R 13

[Lahore]

Before Anwaar Hussain, J

Khurram Shahzad---Petitioner

Versus

Zeeshan Nawaz and 2 others---Respondents

Writ Petition No. 31543 of 2021 (and other connected petitions) decided on 16th June, 2023.

(a) Punjab Rented Premises Act (VII of 2009)---

----S. 5---Tenancy agreement---Registration---Rent Registrar, duty of---Landlord---Proof of ownership---Scope---Power to register tenancy agreement lies with Special Judge (Rent) in his capacity as Rent Registrar who is required to enter particulars of tenancy in a register, affix his seal on tenancy agreement and retain its copy---Functions of Rent Registrar are limited to registration of tenancy agreement---Rent Registrar is obligated not to carry out such functions mechanically and may require "prima facie proof of ownership" from landlord.

Sayyed Mohammad Areeb Abdul Khafid Shah Bukhari v. Government of the Punjab and others PLD 2018 Lahore 390 and Wajid Ali v. Rent Registrar/Special Judge Rent, Lahore and another PLD 2010 Lahore 463 rel.

(b) Punjab Rented Premises Act (VII of 2009)---

----S. 5---Landlord and tenant relationship---Proof---Petitioners / tenants assailed eviction orders passed by two Courts below on the plea that there was no relationship of landlord and tenant between the parties--- Validity---Petitioners were only tenants of rented premises and were acting in support of their purported landlord to prove his title in respect of rented premises---Petitioners had made all-out efforts to prolong tenancy under their purported landlord, and filing of suit for rendition of accounts against him and respondent/landlord was another attempt to continue with the same---Alleged connivance between purported landlord and respondent/landlord had no benefit to the latter, who was striving hard to seek eviction of petitioners / tenants from rented premises---Suit instituted by purported landlord for specific performance of contract in respect of rented premises was dismissed and if a new round of litigation in the form of suit for rendition of accounts had been initiated by petitioners / tenants, the same only facilitated petitioners / tenants or purported landlord to further prolong litigation in respect of rented premises---High Court declined to interfere in eviction orders passed by two Courts below, as the same did not suffer from any illegality, misreading/non-reading, jurisdictional defect or procedural impropriety---Constitutional petition was dismissed, in circumstances.

Sayyed Mohammad Areeb Abdul Khafid Shah Bukhari v. Government of the Punjab and others PLD 2018 Lahore 390; Wajid Ali v. Rent Registrar/Special Judge Rent, Lahore and another and PLD 2010 Lahore 463 and Mst. Alhamdi Begum v. National Bank of Pakistan, Karachi and 2 others PLD 1976 Karachi 723 ref.

Ch. Rashid Abdullah for the Petitioner.

Sajjad Ahmad Joiya for Respondent No. 1.

Dates of hearing: 10th June, 2021, 26th January, 2nd February, 2nd March and 28th April, 2023.

Judgment

Anwaar Hussain, J.---This single judgment shall decide the present as well as the connected constitutional petitions, listed in Schedule 'A' of this judgment. These petitions have been filed by different individuals against the same private respondent, namely, Zeeshan Nawaz (hereinafter referred to as "the respondent/ landlord") who filed separate eviction petitions against the petitioners. The eviction petitions were accepted and separate appeals preferred by the petitioners were also dismissed.

1. The rented premises forming subject matter of the present petitions are shops having different numbers, forming part of property bearing No. BVII-612-613 known as Chashma Market situated in Main Bazar, Daska (hereinafter referred to as "the building" and the shops are referred to as "the rented premises"). Applications of the petitioners for leave to contest were allowed wherein they all denied relationship of landlord and tenant by taking a common plea/defence that they are occupying their respective rented premises, under one Suleman Shahid son of Shahid Iqbal and not the respondent/ landlord and are paying rent regularly to him. This common defence was discarded by the learned Special Judge (Rent), Daska ("the learned Rent Tribunal") and the eviction petitions of the respondent/landlord were accepted. Appeals preferred by the petitioners met the same fate and hence, the constitutional petitions have been filed reiterating the same common plea that the petitioners are tenants under Suleman Shahid. The final orders passed by the learned Rent Tribunal in all the cases are even dated i.e., 28.01.2021 that have been upheld in appeals by judgments of even date i.e., 27.02.2021 passed by the learned Additional District Judge, Daska. Since common defence and identical question of law is involved in these petitions, therefore, the same are being decided through this single judgment. For facility of reference in this judgment, source file is taken as that of the present constitutional petition.

2. On behalf of the petitioners, the arguments were initially put forth by Malik Abdul Wahid, Advocate when the matter was heard on multiple dates of hearing but he could not conclude the arguments due to his illness and gave "No Objection Certificate" to Ch. Rashid Abdullah, Advocate who reiterated the arguments advanced by the former and concluded the submissions on 28.04.2023. Ch. Rashid Abdullah, Advocate submits that the learned Rent Tribunal as well as the learned Appellate Court below have erred in appreciating the fact as there was no tenancy between the petitioners and the respondent/landlord, inasmuch as earlier, separate applications, under Section 5 of the Punjab Rented Premises Act, 2009 (hereinafter referred to as "the Act") for registration of the tenancy agreements in respect of the rented premises, moved by father of respondent/landlord, namely, Muhammad Nawaz, against the petitioners and/or their predecessors-in-interest, were dismissed by the learned Rent Tribunal, vide orders of even date 26.07.2017 as the petitioners and/or their predecessors-in-interest denied relationship of landlord and tenant and the learned Rent Tribunal refused to register the agreement against which appeals were preferred and the learned Appellate Court below also dismissed the same, vide orders of even date 02.12.2017 where after no further challenge was laid; hence, the said findings have attained finality and therefore, the jurisdiction of the learned Rent Tribunal could not have been invoked by filing eviction petitions merely on the basis of an observation of the learned Appellate Court below in order dated 02.12.2017 that the respondent/landlord has equitable right to seek eviction of the petitioners. Further submits that the petitioners and/or their predecessor-in-interest were inducted as tenants by one Shahid Iqbal to whom the petitioners were regularly paying the rent and after his death, rent is being regularly paid to his son, namely, Suleman Shahid. Adds that the respondent/landlord has no title to the rented premises, on the basis of which he can seek eviction of the petitioners, under the applicable law. Further avers that the learned Courts below erred in treating the Family Settlement , dated 16.02.1999 (hereinafter referred as "the Family Settlement") which is a disputed document to have conferred status of owner upon the respondent/ landlord and cannot be made basis of eviction of the petitioners. Lastly, submitted that there is civil litigation pending between the respondent/landlord and Suleman Shahid regarding the title of the rented premises and this aspect of the matters has not been appreciated by the learned fora below.

3. Conversely, Mr. Sajjad Ahmad Joiya, Advocate, learned counsel for the respondent/landlord submits that the rented premises in-fact are part of the building that is an ancestral property belonging to grandfather of the respondent/landlord and Suleman Shahid that initially devolved upon three brothers, namely, Shahid Iqbal, Muhammad Nawaz and Imtiaz Ahmad and the same comprises of total 46 shops. Out of the said 46 shops, Shahid Iqbal, who was father of Suleman Shahid, under whom the petitioners claim to be the tenants, got his share in form of Shops Nos.1 to 15 whereas father of the respondent/landlord, namely, Muhammad Nawaz was acknowledged and accepted as owner of Shops Nos.16 to 32 that are the numbers of the rented premises forming subject matter of the present petitions and the third brother, namely, Imtiaz Ahmad was acknowledged as owner pertaining to the remaining shops i.e., Shops Nos.33 to 46, under the Family Settlement, where-after Shahid Iqbal transferred his share to his wife namely, Nusrat Iqbal. Explaining the factual matrix of the case, learned counsel further avers that after executing the Family Settlement, Muhammad Nawaz, Imtiaz Ahmad and Nusrat Iqbal appointed Shahid Iqbal as their attorney, who used to manage the affairs of the building as a whole and executed various written as well as oral tenancy agreements including agreements with the petitioners and/or their predecessor-in-interest, however, the said attorney was revoked and it is in this factual background that the predecessor-in-interest of the respondent/landlord Muhammad Nawaz sought regularization of the written and/or oral tenancies in terms of Section 5 of the Act and upon denial of relationship of landlord and tenant by the petitioners, eviction proceedings were rightly initiated by the respondent/landlord against the petitioners. Further contends that the petitioners before this Court could not deny the relationship of landlord and tenant as Suleman Shahid, whom the petitioners are treating to be the owner of the rented premises, claimed ownership on the basis of an agreement to sell only that was executed by his deceased father namely, Shahid Iqbal, as attorney of Muhammad Nawaz and said power of attorney had been admittedly revoked. Further avers that civil litigation was also initiated by Suleman Shahid, on the strength of said agreement to sell, however, during the pendency of the proceedings before this Court, in present petitions, the suit instituted by Suleman Shahid has also been dismissed. Concludes that the Family Settlement is duly acknowledged by Suleman Shahid as he relied upon the Family Settlement in his claim before the learned Civil Courts, therefore, neither the petitioners, who are admittedly occupying the rented premises as tenants, nor Suleman Shahid, can deny the genuineness of the Family Settlement.

4. Arguments heard. Record perused.

5. The present as well as connected cases have a chequered history and raise a common question of law that is based on the identical plea of the petitioners on the strength of which the cases have been strenuously argued before this Court that once the applications of the predecessor-in-interest of the respondent/landlord, under Section 5 of the Act, for regularization/registration of the tenancies with the petitioners, were dismissed, on denial of relationship of landlord and tenant by the petitioners, and the said orders attained finality after being upheld, the learned Rent Tribunal had no jurisdiction to entertain the eviction petitions filed by the respondent/landlord. Therefore, the common legal question, in these cases, that requires opinion of this Court boils down to as under:

Whether the Rent Tribunal is precluded from entertaining an application for ejectment of a tenant if an earlier application of the ejectment petitioner, for registration of tenancy agreement, under Section 5 of the Act has been dismissed by the Rent Registrar on the basis of denial of relationship of landlord and tenant?

1. Before answering the legal question and examining the merits of the case, it is imperative to highlight admitted features of the case. There is no denial that the rented premises form part of the building that is ancestral property as explained by the respondent side and consists of total 46 shops. The petitioners are occupying Shop Nos.16 to 32 and in their respective applications for leave to appear and contest before the learned Rent Tribunal, they have raised the common defence that they are in occupation of the said shops for the last few years under deceased Shahid Iqbal and after the demise of Shahid Iqbal, they are holding the rented premises as tenants under his son Suleman Shahid. It is also admitted feature of the case that it is the second round of litigation, before this Court, in respect of the rented premises. In the earlier round of litigation, the matter was remanded on the basis of a compromise between the parties, vide order dated 22.05.2013 passed in W.P No.3041/2010 titled "Ijaz Ahmad v. Muhammad Imtiaz and others.". In the said round, deceased Shahid Iqbal represented predecessor-in-interest of the respondent/ landlord, namely, Muhammad Nawaz, as the attorney of the latter and once the matter was remanded and the power of attorney in favour of deceased Shahid Iqbal was revoked, the deceased Muhammad Nawaz filed the applications for regularization/ registration of the written and/or oral tenancy agreements with the petitioners, who denied the relationship of landlord/tenant between the parties and the said applications were dismissed, vide order dated 26.07.2017, in the following terms:

"Furthermore, the attorney of the applicant namely Shahid Iqbal entered into an agreement to sell with one Suleman Shahid regarding the rented shop and in this regard a suit for specific performance of agreement to sell is still pending adjudication. Furthermore, another suit for possession through partition and rendition of accounts titled as "Muhammad Nawaz v. Shahid Iqbal and others" has not yet been finally decided. Private/family partition is always subject to legal partition. There is no denial to the fact that the respondent was the tenant of Shahid Iqbal and he had been paying rent to him. There is no document on the file to even suggest that the applicant had ever received any rent from the respondent. Civil litigation regarding title is pending adjudication. Relationship of landlord and tenant is not yet established from the available record. In view of the above circumstances, the applicant remained fail to put forward a good case for registration of tenancy agreement. Resultantly, this application for registration of the tenancy agreement is dismissed being without merits."

(Emphasis supplied)

When appeals were preferred by predecessor-in-interest of the respondent/landlord, the learned Appellate Court below, vide order dated 02.12.2017, held as under:

"10. Peculiar facts of the case are that appellant `appointed Shahid Iqbal, his brother, as agent vide Power of Attorney dated 11.03.1999 which was terminated by way of cancellation deed dated 24.08.2004. Right after cancellation of Power of Attorney, the agency came to an end and thereafter any act of agent namely Shahid Iqbal on the strength of General Attorney dated 11.03.1999 is ab anitio void and inoperative on the rights of the appellant/petitioner. Notwithstanding plea of the respondent that he has been paying annual rent to the agent namely Iqbal Shahid and Suleman Shahid does not absolve himself from the liability to make payment of rent/mesne profit to the owner of property as relationship of Shahid Iqbal came to an end on termination of general attorney on 24.08.2004. Tenant should have awakened himself so as to eschew future problem and should have made payment to the owner and not to the terminated agent. This is for the benefit of the respondent to stop making payment to the terminated agent and he may start making payment to actual owner. The appellant has equitable right to evict the occupant who is the erstwhile tenant of his agent, if any, under the rented Premises Act but by the handle of plenary jurisdiction of learned Civil Court and can claim all arrears due in shape of claiming mesne profit. The appellant/petitioner may also claim previous rent received by the terminated agent in shape of mesne profits. However, this Court is of the vivid view that the learned Special Judge (Rent), Daska passed the impugned order on solid reasoning which does not call for any interference by this Appellate Court and the same is hereby upheld."

(Emphasis supplied)

The refusal of the learned Special Judge (Rent), Daska in his capacity as the Rent Registrar to register the tenancy agreement, under Section 5 of the Act and the above quoted observation in order dated 02.12.2017 of the learned Appellate Court below is the foundation of the common legal question that has been formulated in para 6 of this judgment.

1. Adverting to the legal question, it is imperative to examine the nature of an order passed under Section 5 of the Act that relates to the registration of a tenancy agreement and reads as under:

"5. Agreement between landlord and tenant.-(1) A landlord shall not let out a premises to a tenant except by a tenancy agreement.

(2) A landlord shall present the tenancy agreement before the Rent Registrar.

(3) The Rent Registrar shall enter the particulars of the tenancy in a register, affix his official seal on the tenancy agreement, retain a copy thereof and return the original tenancy agreement to the landlord.

(4) The entry of particulars of the tenancy shall not absolve the landlord or the tenant of their liability to register the tenancy agreement under the law relating to registration of documents.

(5) A tenancy agreement entered in the office of a Rent Registrar or a certified copy thereof shall be a proof of the relationship of landlord and tenant.

(6) Any agreement which may be executed between the landlord and the tenant in respect of the premises shall be presented before the Rent Registrar in the same manner as provided in subsection (2)."

The power to register a tenancy agreement lies with the learned Special Judge (Rent) in his capacity as the Rent Registrar who is required to enter the particulars of the tenancy in a register, affix his seal on the tenancy agreement and retain a copy thereof. Consequently, the functions of the Rent Registrar are limited to the registration of the tenancy agreement. The Rent Registrar, however, is obligated not to carry out such functions mechanically and may require "prima facie proof of ownership" from the landlord. Reference in this regard is made to case reported as "Sayyed Mohammad Areeb Abdul Khafid Shah Bukhari v. Government of the Punjab and others" (PLD 2018 Lahore 390) wherein it has been held as under:

"9.....From the perusal of Sections 5, 6 coupled with Section 2(d) of the Act, the landlord means the owner of premises and includes a person for the time being entitled or authorized to receive rent in respect of the premises, as such, it is mandatory for a person claiming to be the landlord to provide any prima facie proof of ownership or any authorization from the owner in recognition of his being ostensible landlord qua the rented premises to the Rent Registrar for registration of the rent agreement and the Rent Registrar is also competent to ask the landlord for production of any proof regarding the ownership or title document of the demised premises. Even a person who files application under Section 5 of the Act for registration of rent agreement on behalf of the landlord is also under obligation to provide a reasonable proof of ownership of the landlord for the purpose of registration of rent agreement which is not tantamount to decision of the title rather it is only satisfaction of the Rent Registrar for the purpose of the registration of the document of rent agreement."

(Emphasis supplied)

The Rent Registrar is also required to follow due process and issue notice to the tenant before registering the tenancy agreement. Reference in this regard is made to case reported as "Wajid Ali v. Rent Registrar/Special Judge Rent, Lahore and another" (PLD 2010 Lahore 463).

1. However, despite the foregoing, the functions of the Rent Registrar, at the best, only involve a prima facie scrutiny of the title of the landlord. The Rent Registrar can only carry out a tentative probe viz., the status of the parties as held in case of Sayyed Mohammad Areeb Abdul Khafid Shah Bukhari supra and does not have the authority and power to conclusively determine the issue of the status of the parties since the said power is judicial in nature and lies with the learned Rent Tribunal as the law creates a distinction between the functions and powers of the learned Special Judge (Rent) while functioning as Rent Registrar and in its capacity as the Rent Tribunal inasmuch as the learned Rent Tribunal has the power to entertain and adjudicate applications in respect of the rented premises in terms of Section 19 of the Act and has exclusive jurisdiction in respect of cases arising under the Act as contemplated under Section 16(4) thereof that includes applications for deposit of rent, eviction of tenant etc., whereas, the Rent Registrar only receives applications for registration of the tenancy agreements in terms of Section 5 of the Act and his sole responsibility is to maintain a register to enter particulars of tenancy agreements, agreement to sell or any other agreement in respect of rented premises as per Section 17(2) of the Act. Similarly, under Section 25 of the Act, the learned Rent Tribunal has the power to record evidence, however, no such power vests with the Rent Registrar. Moreover, the learned Rent Tribunal exercises powers of the Civil Court by virtue of Section 26 of the Act whereas no such powers are available to the Rent Registrar.

2. In nutshell, it is well evident from the above discussion that the Rent Registrar does not perform an adjudicatory function rather performs functions that are primarily administrative/executive in nature, which may require cursory appreciation of the documents and tentative probe viz., status of the parties. The learned Rent Tribunal, on the other hand, has exclusive adjudicatory powers for all the matters related to rented premises and therefore, also the power to make a final determination in respect of the issues such as the status of the parties. So even if the functions of the Rent Registrar and the Rent Tribunal are entrusted to the same Officer (Judicial Officer), the above distinction will remain true as each role has its own scope and limitations. As is clear, under the Act, the Rent Registrar has very limited functions and powers that are not adjudicatory in nature, this Court is of the opinion that the distinction between the functions and powers of the Rent Tribunal and the Rent Registrar have been deliberately and consciously incorporated in the Act and one cannot lose sight of the same while deciding the fate of an eviction petition.

3. The matter can be examined from another angle. Under Section 9 of the Act, it has been clearly envisaged that if a tenancy does not comply with the requirements of the Act, an application under the Act can be entertained by the learned Rent Tribunal provided that the requisite fine is deposited with the learned Rent Tribunal. The word "entertain" in legal parlance, as per Black's Law Dictionary, Tenth Edition, means "to give judicial consideration to" a matter" Similarly, in case reported as "Mst. Alhamdi Begum v. National Bank of Pakistan, Karachi and 2 others" (PLD 1976 Karachi 723), it has been defined as "to adjudicate upon" or "proceed" to consider on merits. It is amply clear that even if the tenancy agreement is not registered under Section 5 of the Act, the same does not operate as an absolute bar on the learned Rent Tribunal from entertaining an application under the Act provided the requisite fine is paid. It is important to note that the words used in Section 9 are "if a tenancy does not conform to the provisions of this Act". Meaning thereby that if, for whatsoever reason, the tenancy agreement is not registered with the Rent Registrar under Section 5 (whether due to landlord's failure to get the same registered or the Rent Registrar's refusal to register the same on denial of relationship by the tenant), Section 9 will become applicable and the application before the Rent Tribunal can still be entertained, after payment of the requisite fine. At this juncture, it is also imperative to observe that the legal question can be analyzed from yet another angle. If an order to register the tenancy agreement was to preclude the powers of a Rent Tribunal under Section 9 and Section 19 of the Act, then there ought to have been clear language in the statute to this effect. However, neither Section 9 nor Section 19 of the Act, makes the exercise of powers by the learned Rent Tribunal subject to any prior determination, under Section 5 of the Act. In the absence of any such language, the order passed under Section 5 by the Rent Registrar cannot be deemed to have the effect of limiting the jurisdiction of the learned Rent Tribunal in any manner as such jurisdiction of the Rent Tribunal includes the power to decide the existence or otherwise of relationship of landlord and tenant. Moreover, the decision refusing a request to register a tenancy under Section 5 of the Act, whether oral or written, cannot be termed as a "decision" on merits since the same is not made after recording of any evidence or framing of issues but the rejection of the application is based on a prima facie view of the existence of a tenancy by the Rent Registrar. Thus, this Court cannot countenance the argument that order under Section 5 made in exercise of administrative functions of the learned Special Judge (Rent) precludes the exercise of his judicial functions under the Act.

4. Having held that refusal of the Rent Registrar, under the Act, to register the tenancy agreement or reduce an oral tenancy into writing, does not preclude the learned Rent Tribunal from entertaining a landlord's application for ejectment of tenant, this Court adverts to the merits of the case to opine whether the respondent/landlord was able to prove the relationship of landlord and tenant with the petitioners in respect of the rented premises in occupation of the petitioners, respectively. Admittedly, the petitioners are not claiming any ownership of the rented premises and have merely stated that they are tenants under Suleman Shahid. Learned counsel for the petitioners laid emphasis on the point that the Family Settlement on the basis of which the predecessor-in-interest of the respondent/landlord (deceased Muhammad Nawaz) claimed ownership of the rented premises is a disputed document having no evidentiary value. In this regard, it has been noted that the petitions were not properly documented when the same were filed but later on, both sides submitted civil miscellaneous applications, in present as well as connected petitions, to bring on record all the relevant documents that were available before the learned Courts below. The said C.Ms. have been allowed vide order of even date i.e., 28.04.2023 as no objection was raised from either side. These documents include copy of written statement filed by deceased Shahid Iqbal in suit titled "Muhammad Nawaz v. Shahid Iqbal, and others". The said written statement clearly depicts that the Family Settlement by virtue of which Muhammad Nawaz, predecessor-in-interest of the respondent/landlord obtained the ownership rights of the rented premises is duly acknowledged in the civil suit instituted by Muhammad Nawaz against Shahid Iqbal (Father of purported landlord of the petitioners namely, Suleman Shahid) and others and this aspect was appreciated by the learned fora below. Upon confrontation by this Court, these documents have not been controverted by learned counsel for the petitioners. The Family Settlement gets further traction when on the strength of the same, admittedly the shops which forms part of the building and given to deceased Shahid Iqbal were transferred by the deceased Shahid Iqbal to his wife Nusrat Iqbal and the latter along with other beneficiary of the Family Settlement namely, Muhammad Imtiaz as well as predecessor-in-interest of the respondent/landlord executed a general power of attorney in favour of the deceased Shahid Iqbal who managed the affairs of the building as a whole including the prosecution of litigation before this Court, inter alia, W.P No.3041/2010. Therefore, this Court is of the opinion that it does not even lie in the mouth of the purported landlord of the petitioners namely, Suleman Shahid to object to the title of the respondent/landlord let alone the petitioners. The learned Rent Tribunal has correctly summarized the evidentiary resume of the case in the following terms:-

"15. Perusal of record reveals that applicant has relied upon Ex-A7 a certified copy of an ejectment petition dated 21.01.2008 in which the respondent submitted his leave to contest and admitted Muhammad Nawaz as attorney of Shahid Iqbal. In view of the above mentioned oral account as well as the documentary proofs, along with orders of the Hon'ble Lahore High Court, Lahore Mark-A, there remains no doubt or ambiguity that tenant was in possession of the disputed premises through a written agreement/Ex-A.3 and in view of multiple admissions on part of the tenant/respondent, and other documentary proof provided by the applicant including Mark-E/the family settlement deed, PT-1 and a decree of the court/Mark-F, applicant has proved himself not only owner of the disputed rented premises but also that he is the real landlord of the property and upon termination of agency, in view of cancellation of general power of attorney, the landlordship reverted to the original owner i.e Muhammad Nawaz and after his death/death certificate Ex-A.10, Zeshan/the present applicant became the inherited owner/landlord and he has rightly filed this ejectment petition and it is held that relationship of landlord and tenant between the parties has also established."

(Emphasis supplied)

Here it is also imperative to mention that the learned Rent Tribunal while passing the impugned orders of eviction in connected matters observed that most of the witnesses, in the cases, are those who are tenants (petitioners before this Court) themselves in the building and are also witnesses of each other while the present petitioner, namely, Khurram Shahzad is one of them, who appeared as witness in more than one ejectment petitions. The petitioner in present petition while appearing in his own case admitted that he is not paying any rent to the respondent/landlord but to Suleman Shahid although the tenancy agreement (Exh.A-3), in his case, was executed by deceased Shahid Iqbal as attorney of predecessor-in-interest of the respondent/landlord. Occupancy of the rented premises under deceased Shahid Iqbal as attorney of the predecessor-in-interest of the respondent/landlord in connected cases has also not been denied. The documentary as well as oral evidence in present as well as connected cases clearly reflected that the father of the respondent/landlord, namely, Muhammad Nawaz is the owner of the rented premises, who executed power of attorney in favour of Shahid Iqbal that was later on revoked on the strength of which the petitioners were inducted as tenants of the deceased predecessor-in-interest of the respondent/landlord and hence, the petitioners cannot deny relationship of landlord and tenant with deceased Muhammad Nawaz that was created through the agent/attorney.

1. Moreover, it is also worth mentioning that the suit for specific performance instituted by Suleman Shahid on the basis of agreement to sell executed in his favour by his father Shahid Iqbal qua attorney of Muhammad Nawaz regarding the rented premises in itself indicates that Muhammad Nawaz (father of the respondent/landlord) was the actual owner of rented premises and deceased Shahid Iqbal was only acting as attorney of the predecessor-in-interest of the respondent/ landlord and subsequent to the revocation of power of attorney, the status of the ownership of rented premises is admitted and also established relationship of landlord and tenant between the petitioners and the respondent/landlord, being the real owner of the rented premises.

2. Suffice to observe that the petitioners, while admitting their occupation of the rented premises as tenant albeit under Suleman Shahid, went overboard by focusing on to disprove the title of the respondent/landlord and establishing the ownership of Suleman Shahid viz., the rented premises, without appreciating the fact that Suleman Shahid neither tried to become party in the ejectment petition nor the petitioners submitted the affidavit of the latter or got him summoned as a Court Witness in support of their stance. Interestingly, when the arguments were concluded in rebuttal before this Court and a pointed question was asked as to why Suleman Shahid never joined the proceedings before the learned Rent Tribunal as a party by filing an appropriate application and/or appeared as a witness, no plausible explanation was given, however, learned counsel for the petitioners stated that the petitioners before this Court have recently instituted a suit for rendition of accounts against the respondent/landlord and Suleman Shahid (the purported landlord of the petitioners), with the averments that due to active connivance of the respondent/landlord and Suleman Shahid, the petitioners have been non-suited in the eviction proceedings. This argument in itself is an admission on part of the petitioners that they are only tenants of the rented premises and were acting in support of their purported landlord namely, Suleman Shahid to prove his title in respect of the rented premises and have made all-out efforts to prolong the tenancy under him and the filing of suit for rendition of accounts against Suleman Shahid and the respondent/landlord is yet another attempt to continue with the same. Alleged connivance between Suleman Shahid and the respondent/ landlord has no benefit to the latter, who is striving hard to seek eviction of the petitioners from the rented premises. On the other hand, admittedly the suit instituted by Suleman Shahid for specific performance of contract in respect of the rented premises has been dismissed and if a new round of litigation in the form of suit for rendition of accounts has been initiated by the petitioners, the same only facilitates the petitioners or Suleman Shahid to further prolong the litigation in respect of the rented premises.

3. In view of the above, the impugned orders of even date 28.01.2021 and judgment dated 27.02.2021 passed by the learned Courts below in present as well as connected petitions do not suffer from any illegality, misreading/non-reading, jurisdictional defect or procedural impropriety, hence, the present as well as connected petitions are dismissed. No order as to costs.

Schedule 'A'

| | | | | | --- | --- | --- | --- | | S.No. | Case No. | Title | Rented premises | | 1. | W.P. No.31534/2021 | Rizwan Mehmood v. Zeeshan Nawaz, etc. | Shop No.31, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot | | 2. | W.P. No.31537/2021 | Muhammad Rizwan v. Zeeshan Nawaz, etc. | Shop No.21, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot | | 3. | W.P. No.31539/2021 | Hafiz Muhammad Iftikhar v. Zeeshan Nawaz, etc. | Shop Nos.25 and 26, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot | | 4. | W.P. No.31541/2021 | Muhammad Waqas v. Zeeshan Nawaz, etc. | Shop No.18, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot | | 5. | W.P. No.31547/2021 | Muhammad Usman v. Zeeshan Nawaz, etc. | Shop Nos.27 and 28, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot | | 6. | W.P. No.31548/2021 | Rana Ihtisham Ullah v. Zeeshan Nawaz, etc. | Shop No.29, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot | | 7. | W.P. No.31549/2021 | Muhammad Hamza Akbar v. Zeeshan Nawaz, etc. | Shop No.17, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot | | 8. | W.P. No.31552/2021 | Babar v. Zeeshan Nawaz, etc. | Shop No.30, Chashma Market, adjacent to Main Bazar, Tehsil Daska, District Sialkot |

2025 Y L R 62

[Lahore]

Before Muhammad Amjad Rafiq, J

Noor Khan---Petitioner

Versus

The State and 5 others---Respondents

Criminal Revision No. 2454 of 2022, decided on 27th June, 2024.

Illegal Dispossession Act (XI of 2005)---

----S. 3---Illegal dispossession---Scope---Petitioner was aggrieved of Trial Court's order whereby his complaint filed under S. 3 of Illegal Dispossession Act, 2005, was dismissed---Validity---Petitioner alleged that after a legal partition of the joint khata, he along with his family members was in possession of a particular land being its owners; that respondents armed with hatchets, clubs and firearm weapons, dispossessed the petitioner from land measuring 08 Kanals 18 Marlas situated in Killa Nos. 21 and 3 Kanals and 09 Marlas in Killa No. 22, total land measuring 12 Kanals 07 Marlas---During the occurrence, both the parties sustained injuries, upon which, respondent No. 2 lodged FIR under Ss. 337-A(iv), 324, 337-L(2), 337-F(vi), 354, 337-A(i), 148 & 149, P.P.C, against the petitioner and seven others, wherein, cross-version of the petitioner's side was also recorded---Petitioner's party was arrested in said FIR and respondent party destroyed their millet and maize crops and illegally took over the possession of 12 Kanals and 07 Marlas land---Held, that on receiving complaint, Court was bound to ascertain the truth and falsehood of the allegation, through inquiry and/or investigation---Inquiry and investigation were not mutually exclusive, Court could resort to both proceedings one after another---Investigation process provide both the complainant and respondents with an opportunity to be heard as part of the process of determining the validity of an allegation---This generally triggers rights of due process under the law on how to address allegations---Thus, that is the reason an investigation is necessary or essential because it is conducted for collection of evidence and parties have full opportunity to produce every sort of material legally admissible or not---In such way issues are narrowed down by investigator with an opinion for and against the commission of offence and Court is loaded with tangible evidence as well---In the present case, Court had neither conducted the inquiry properly nor ordered for investigation, so much so on the day of dispossession FIR was also registered with corresponding cross version but Court did not even bother to summon the police record despite the fact that motive of the occurrence was dispossession---Court had also not attended the fact that possession was handed over to the complainant through warrant of possession issued by a competent authority---Petition was allowed by setting aside the impugned order, with the direction that complaint filed by the petitioner shall be deemed pending and Trial Court after feeling the necessity either of investigation or inquiry, if any, shall proceed with the complaint in due course of law as delineated above.

Muhammad Jawad Hamid and another v. Mian Nawaz Sharif and others 2019 PCr.LJ 665; Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others PLD 1986 Lahore 256; Waqar Ali and others v. The State Through Prosecutor/Advocate-General, Peshawar and others PLD 2011 SC 181; Mst. Inayat Khatoon and others v. Muhammad Ramzan and others 2012 SCMR 229; Taimor Ahmad and another v. Additional Sessions Judge and 9 others 2018 YLR 81; Karamat v. The Queen PLD 1957 Privy Council 107; Muhammad Sadiq and another v. Muhammad Hussain PLD 1952 Azad J&K 13; Bazal Ahmed Sowdagar v. Nur Muhammad PLD 1963 Dacca 852; The State Through The Advocate General, Province of Baluchistan, Quetta v. Jamil Iqbal PLD 1974 Quetta 28; Abdul Rashid v. The State and others 1999 YLR 1298; Sardar Inayatullah Khan v. The State and 3 others 2000 YLR 2803; Ch. Sajid Mehmood v. Inspector General of Police, i.c.t., Islamabad and 3 others 2015 YLR 81; Asfandyar and another v. Kamran and another 2016 SCMR 2084; Jahanzaib Khan v. Special Judge Cns Court, Lahore and another 2018 PCr.LJ 354; Mir Sanad Khan and 6 others v. The State PLD 2014 Baluchistan 113; Allahyar v. The State 1968 PCr.LJ 1526; Anwar Ali Khan and others v. Wahid Bux and others 1991 SCMR 1608; Muhammad Panjal v. Ghulam Shabbir Jat and 6 others 2004 YLR 967 and Abhinandan Jha and ORS. v. Dinesh Mishra AIR 1968 Mad 117 rel.

Sajjad Hussain Tarar for the Petitioner.

Fakhar Abbas, Deputy Prosecutor General for the State.

Nemo for the respondents despite notice.

Order

Muhammad Amjad Rafiq, J.---Solicitation is made through this petition for revising the order dated 04.12.2021, passed by the learned Additional Sessions Judge, Chiniot, whereby, complaint of the petitioner filed under section 3 of the Illegal Dispossession Act, 2005 (the Act) was dismissed.

1. Petitioner tabled the fact of the dispossession from his landed property before the Court in terms that out of total land measuring 1642 Kanals in Khata No.117 situated in Mauza Aasian, Tehsil and District Chiniot, he along with his family members is owner of land measuring 68 Kanals 05 Marlas, whereas, respondents Nos.2 to 6 are illegal occupants of land measuring 12 Kanals 07 Marlas in Killa Nos.21 and 22 of square No.28 and due to said reason, Khata No.117 was got partitioned with the consent of both the parties. According to which, 12 WANDA JAAT were prepared and the petitioner along with other family members were allotted WANDA No.07, warrant of possession was issued and after completion of such proceedings and depositing their dues in government treasury by the parties, respective possession was delivered to them on 10.09.2020. Further that on 03.10.2020 at 4:00 p.m., when the petitioner along with Murtaza and Qasim Ali was present in his land, respondents Nos.2 to 6 armed with hatchets, clubs and firearm weapons attracted to the spot, dispossessed him from land measuring 08 Kanals 18 Marlas situated in Killa Nos.21 and 3 Kanals and 09 Marlas in Killa No.22 (total land measuring 12 Kanals 07 Marlas) relating to said WANDA No.07. During the occurrence, both the parties sustained injuries, upon which, respondent No.2 got lodged FIR No.458 dated 03.10.2020 under sections 337-A(iv), 324, 337-L(2), 337-F(vi), 354, 337-A(i), 148, 149, P.P.C. at Police Station Saddar Chiniot against the petitioner and seven others, wherein, cross-version of the petitioner's side was also recorded; petitioners' party was arrested in said FIR and respondents party destroyed their millet and maize crops and illegally took over the possession of 12 Kanals and 07 Marlas land referred above.

2. Learned Counsel for the petitioner states that since 3.10.2020, after dispossession, petitioner has been striving for return of his valuable land, deprivation is soulful and respondents while using delaying tactics have prolonged their illegal occupation which is adding insult to injury and even today, they are not before this Court. Learned counsel further states that learned Additional Sessions Judge requisitioned the revenue report which was based on the position of parties on 08.09.2021 (though dispossession was ante-dated) whereby possession of 4 Kanal and 9 Marala land was shown in the possession of Asia Bibi, respondent No. 5, which prejudiced the mind of learned judge who held that this fact has been concealed from the Court, because neither it was mentioned in the complaint nor in the statements of witnesses, therefore, on this sole ground complaint stood dismissed. On the other hand, learned Deputy Prosecutor General states that learned Judge has not conducted the inquiry within the spirit of section 5 of the Act, and while responding to non-appearance of respondents before this Court, he has referred section 440 of Cr.P.C, stating that in criminal revision proceedings it is only optional with the courts to hear the parties.

3. Heard; record perused.

4. On receiving of complaint, private prosecution regime in vogue responds by recording cursory statements of witnesses by the Court to find out tentatively the commission of any offence. However, Court jurisprudence sometimes requires conducting of an inquiry under section 202, Cr.P.C. with certain parameters including perusal of police record in connected state case. According to case reported as "Muhammad Jawad Hamid and another v. Mian Nawaz Sharif and others" (2019 PCr.LJ 665), it was held as under;

"39. Section 202 of the Code bestows vast powers upon the court to ascertain the truth or falsehood of the complaint and in this respect as it could direct any inquiry or investigation and during inquiry it could examine the police file and final reports including report of JIT to come to a definite conclusion, as it is covered under the definition of material and if felt necessary may examine the members of JIT, I.O in a private complaint or any other witness recorded during investigation of said case so that complete picture of the occurrence supported by relevant material must be before him while passing an order under section 204 (for summoning the accused), so that no innocent person should face agony of trial and no culprit should go unpunished."

Further in a case reported as "Muhammad Ibrahim and others v. Qudrat Ullah Ruddy and others" (PLD 1986 Lahore 256), it was held;

"Looking at the provisions of section 202 from all angles, in the event of an inquiry, the person conducting the inquiry should not only record the evidence of witnesses produced by the complainant, but should also examine the Investigating Officer, or, in the alternative, call for and peruse the Ziminis...."

1. It has been learnt that Courts while dealing with prosecution of complaint under Illegal Dispossession Act, 2005 follow a routine pattern to record the cursory statements of witnesses, ask for police comments and then make a mind to issue or decline process to the accused persons. Offences under the Act are non-cognizable, no FIR can be registered, and filing of a direct complaint is the remedy, therefore, if the offence seems not committed, Court is not bound to order for investigation as held by Supreme Court in a case reported as "Waqar Ali and others v. The State Through Prosecutor/ Advocate-General, Peshawar and others" (PLD 2011 SC 181), but if the commission of offence is apparent from the record, Courts must conduct an exhaustive inquiry or order for an investigation to get the relevant material collected for and against the commission of alleged offence, and should not go for trial mere on the basis of cursory statements or documents uncertified. Supreme Court of Pakistan in case reported as "Mst. Inayat Khatoon and others v. Muhammad Ramzan and others" (2012 SCMR 229) has held that trial of an accused under Illegal Dispossession Act, 2005 cannot be equated as trial in a complaint under section 190 of Cr.P.C. It is a special law may override the provisions of Cr.P.C, therefore, Court may order for investigation. That is the reason in year 2017, legislator felt the need for conducting of investigation and inquiry one after another and made changes in section 5 of the Act which is reproduced for reference;

5. Investigation and procedure. (1) Upon a complaint the Court may direct the officer-in-charge of a police station to investigate and complete the investigation and forward the same within fifteen days to the Court:

Provided the Court may extend the time within which such report is to be forwarded in case where good reasons are shown for not doing so within the time specified in this subsection:

Provided further that whenever a local inquiry is necessary for the purpose of this Act, the Court may direct a Magistrate or a revenue officer in the district to make inquiry and submit report within a period as may be specified by the Court. The report of the Magistrate or revenue officer, as the case may be, shall be construed as evidence in this case.

(2). On taking cognizance of a case, the Court shall proceed with the trial from day to day and shall decide the case within sixty days and for any delay, sufficient reasons shall be recorded.

(3). The Court shall not adjourn the trial for any purpose unless such adjournment is, in its opinion, necessary in the interest of justice and no adjournment shall in any case be granted for more than seven days.

(4) On conclusion of the trial, if the complaint is found to be false, frivolous or vexatious, the Court may award compensatory cost to the person complained against which may extend to five hundred thousand rupees.

As object of the Act is to protect the rights of owner or lawful occupier, therefore, regime of law must be clearly understood to give a prompt response against dispossession, grabbing, controlling or occupying of the property without lawful authority. Spirit of above section requires that on examining the complaint and attached documents, Court may direct officer incharge of police station to investigate and complete the investigation within given or extended period; which means that on receiving such direction by officer incharge of police station, chapter 25 of Police Rules, 1934 relating to power of police officers to investigate becomes operative and it shall be followed to observe all the processes given therein including recording of statements under section 161, Cr.P.C. of witnesses other than those whose cursory statements have already been recorded, if any, plea of accused, inspection of disputed site with spot recoveries if any, preparation of site plan or seeking technical assistance by any expert (revenue, settlement or consolidation officer) after obtaining revenue record and preventing overt act from any side or further dispute except power to arrest the accused without permission by the Court because offence under section 3 of the Act is non-cognizable and Court is equipped with power to direct arrest of offenders as enunciated under subsections (2) and (3) of Section 4 of the Act.

1. Police can investigate the non-cognizable case on direction by Court in the same manner as meant for investigation of cognizable case. Part of relevant provision (Rule 25.11 of Police Rules, 1934) is reproduced as under;

25.11. Investigation in non-cognizable cases. - (1) No police officer shall investigate a non-cognizable offence unless ordered to do so by a competent magistrate under Sections 196-B or 202, Criminal Procedure Code.

(2) When an investigation in a non-cognizable case is thus ordered and is taken up by the police under Section 155(3), Criminal Procedure Code, it must be carried through in the same manner as if the offence were cognizable, except that no arrest shall be made without a warrant. In every such case a police officer making an investigation shall day by day enter his proceedings in a case diary and submit them daily as prescribed for cognizable cases in Police Rule 25.53. Case diaries shall be submitted through the gazetted officer concerned to the court which has ordered investigation. No copies shall be prepared or kept by the police.

(Emphasis is supplied)

The above rule gives a clear indication that during investigation day to day proceedings shall be entered in case diaries which shall be dispatched to the Court and no record of such diaries shall be kept by the police. Rule 25.53 (2) of Police Rules, 1934 requires that case diaries shall be as brief as possible; shall not be swollen with lengthy explanations and theories; shall be written either in English or in simple Urdu and only such incidents of the investigation shall be included as have a bearing on the case. Of course, on close of investigation, all the outcomes suggested in Rule 25.57 of Police Rules, 1934 shall be forwarded to the Court in the form of a report under section 173, of Cr.P.C., and then Court may decide to issue process against the accused or dismiss the complaint as the case may be. It has been held in case reported as "Taimor Ahmad and another v. Additional Sessions Judge and 9 others" (2018 YLR 81) that section 4 of the Act can be equated with section 154 of Cr.P.C. and report under section 5(1) of the Act with the report under section 173 Cr.P.C. With a respectful dissent to above observation, it is held that section 4 can be equated with section 155 of Cr.P.C.

1. Investigation though provides material for trial yet its admissibility is always subject to rules of evidence and opinion of Court, therefore, legislator through section 5 of the Act has also taken care of this situation by introducing a concept of local inquiry which further empowers the Court that whenever a local inquiry is necessary for the purpose of this Act, the Court may direct a Magistrate or a revenue officer in the district to make inquiry and submit report within a period specified by the Court. Purpose of Act is as follows;

"Whereas it is expedient to protect the lawful owners and occupiers of immovable properties from their illegal or forcible dispossession therefrom by the property grabbers."

Thus, when the circumstances of the case are of the nature that Court deems it appropriate to obtain evidence, it shall order for such inquiry because the report of the Magistrate or revenue officer, as the case may be, shall be construed as evidence in this case as per second proviso of section 5(1) of the Act, therefore, appearance of Magistrate or revenue officer before the Court as witness is not necessary. It is the like inquiry as conducted on the direction of Sessions Judge by the Magistrate or any other person as mentioned in section 148 of Cr.P.C.

1. Section 9 of the Act says that unless otherwise provided the provisions of the Code of Criminal Procedure, 1898 (V of 1898), shall apply to proceedings under this Act; therefore, to better appreciate the situation at site Court can also go for local inspection as well at the stage of preliminary inquiry or during the trial. The relevant provision of Cr.P.C. is as follows;

539-B. Local inspection: (1) Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating the evidence, given at such inquiry or trial and shall without unnecessary delay record a memorandum of any relevant facts, observed at such inspection.

(2) Such memorandum shall form part of the record of the case if the Public Prosecutor, complainant or accused so desires, a copy of the memorandum shall be furnished to him free of cost.

The practice of local inspection is approved by the Superior Courts and its evidentiary value is subject to the principles laid down in following cases;

"Judgment of Full Bench reported as "Karamat v. The Queen" (PLD 1957 Privy Council 107): "Muhammad Sadiq and another v. Muhammad Hussain" (PLD 1952 Azad J&K 13) "Bazal Ahmed Sowdagar v. Nur Muhammad" (PLD 1963 Dacca 852): "The State Through The Advocate General, Province of Baluchistan, Quetta v. Jamil Iqbal" (PLD 1974 Quetta 28): "Abdul Rashid v. The State and others" (1999 YLR 1298 FSC): "Sardar Inayatullah Khan v. The State and 3 others" (2000 YLR 2803): "Ch. Sajid Mehmood v. inspector General of Police, i.c.t., Islamabad and 3 others" (2015 YLR 81): "Asfandyar and another v. Kamran and another" (2016 SCMR 2084) and "Jahanzaib Khan v. Special Judge Cns Court, Lahore and another" (2018 P Cr. L J 354)."

1. On receiving complaint, Court is bound to ascertain the truth and falsehood of the allegation, through inquiry and/or investigation. Inquiry and investigation are not mutually exclusive, Court can resort to both proceedings one after another. Let's see what is an inquiry and investigation, and when they be resorted to;

When Inquiry may be conducted

An inquiry is made in order to determine the truth or falsity of a certain fact before an accused is charged with an offence. Object of an inquiry is to determine the truth or falsity of certain facts in order to take further action thereon; reliance is placed on case reported as "Mir Sanad Khan and 6 others v. The State" [PLD 2014 Baluchistan 113]. An inquiry may start with shadowy beginning. During the inquiry, accused can be given opportunity to submit his stance and it would not be an illegality. Case reported as "Allahyar v. The State" [1968 PCr.LJ 1526] is referred. Scope of Section 202 of Cr.P.C. is to hold a preliminary inquiry and it does not contemplate that a notice be issued to the accused person before issuing a process but If the Court holding such inquiry issues a notice to the accused before issuing process, it would not vitiate the inquiry. Reliance is placed on cases reported as "Anwar Ali Khan and others v. Wahid Bux and others" [1991 SCMR 1608] and "Muhammad Panjal v. Ghulam Shabbir Jat and 6 others" [2004 YLR 967 (LHR)]. In an inquiry, Court has to ascertain the truth or falsehood of the complaint which means that it would attend both aspects i.e., truth and falsehood.

When investigation may be conducted

Investigation starts when a police officer forms a definite opinion that there are grounds for investigation of a crime. Reliance is placed on case reported as "Abhinandan Jha and others v. Dinesh Mishra" [AIR 1968 Mad 117] and it is meant for collection of evidence. On the similar principles, when any complaint is received by the Court, it starts inquiring as to ascertain the truth or falsity of facts contained therein; if, it comes to the conclusion that complaint is based on truth and an offence appears to have been committed, and sufficient material is available to proceed with the trial, it issues process against the accused; but if it has no sufficient material or evidence, it can order an investigation for the purpose of collection of evidence. Court can direct inquiry or investigation one after another and its necessity can be summarized by explaining some situations in an inquiry and need for investigation thereafter, it is as follows;

What is an inquiry?

An inquiry is the process of reviewing an allegation to determine;

1. whether the allegation is responsible;

1. the particular law or laws that may have been breached; and

3. whether an investigation is warranted based on the information provided in the allegation.

Below is a table describing examples of possible outcomes of an inquiry;

| | | | --- | --- | | Situation | Outcome | | If the allegation is not responsible. | The allegation is dismissed and the matter concludes at inquiry. | | If the allegation is responsible but a breach of law is not substantiated. | The allegation is dismissed and the matter concludes at inquiry. | | If a breach is substantiated, and the respondent accepts responsibility, and further investigation would not uncover any new information pertinent to the matter. | The matter concludes at inquiry. | | If a breach is substantiated but the respondent does not accept responsibility. | An investigation is initiated. | | If any issues identified through the inquiry warrant an investigation (e.g., other individuals in addition to the respondent involved in the breach; other possible breaches suspected). | An investigation is initiated. |

What is an investigation?

An investigation is a systematic process, conducted by an authorized person for the purpose of determining the validity of an allegation. An investigation involves collecting and examining any evidence related to the allegation and making a decision as to whether a breach of law has occurred. Investigation must be conducted when:

1. the inquiry has not established whether or not a breach of law has occurred;

2025 Y L R 75

[Lahore (Multan Bench)]

Before Ch. Abdul Aziz and Anwaarul Haq Pannun, JJ

Nayyar Abbas---Appellant

Versus

The State and others---Respondents

Criminal Appeal No. 549 of 2023, heard on 13th February, 2024.

(a) Criminal trial---

----Police witnesses---Scope---Police Officials, in absence of any malice or grudge against the accused on their part, were as good witnesses of recovery as any respectable of the locality.

(b) Criminal trial---

----Recovery memo---Object and scope---One of the objects behind preparing the recovery memo. at the spot with its due attestation by the witnesses was to ensure the fairness of the process of recovery so as to exclude the possibility of fabrication, misappropriation or damage to the seized articles either to favour an accused or for his false implication---Recovery memo. must contain all relevant particulars of the things seized or taken into possession to establish its identity beyond any doubt---Requirement behind attestation of a recovery memo. by the marginal witnesses at the spot was part of an attempt to ensure that the recovery had transparently been effected as fulfillment of such requirements was necessary to exclude the possibility of false implication or any manipulation prompted by human weaknesses and to prevent the abuse of process of law and misuse of authority---Attestation of the recovery memo. by two witnesses acting as musheer also ensured that a single person at his whims might not abuse the process of law and misuse his authority---Preparation of such recovery memo. was also necessary to prove the case by the prosecution at trial against the accused.

Zafar Khan and others v. The State 2022 SCMR 864 rel.

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

----S.9(c)---Possession of narcotic substances---Appreciation of evidence---Recovery memo---Doubtful---Prosecution case was that 2250-grams charas was recovered from the possession of the accused---Record showed that recovery memo. of charas neither contained the number nor the date of the FIR nor the name of police station---Complainant had admitted that in recovery memo. there was no specific mention of place where the contraband was allegedly recovered from the accused---Furthermore, the recovery witness in his cross-examination had also deposed that he did not remember as to what case FIR number was written on the recovery memo. at the time when he signed the same---In view of such depositions of the witnesses, serious doubt was casted upon the authenticity of preparation of recovery memo.---Moreover, tenor of the testimonies of prosecution's witnesses clearly revealed the recovery memo. was prepared after registration of the FIR in the case, therefore, no legal sanctity could be attached to such document---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.

Zafar Khan and another v. The State 2022 SCMR 864 and The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar v. Fayaz Khan PLD 2019 FSC 21 rel.

(d) Criminal trial---

----Benefit of doubt---Principle---Single instance causing a reasonable doubt in the mind of the Court entitles the accused to the benefit of doubt not as a matter of grace but as a matter of right.

Daniel Boyd (Muslim Name Saifullah) and another v. The State 1992 SCMR 196; Gul Dast Khan v. The State 2009 SCMR 431; Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64; Muhammad Imran v. The State 2020 SCMR 857 and Muhammad Imtiaz Baig and another v. The State through Prosecutor General, Punjab, Lahore and another 2024 SCMR 1191 rel.

Ch. Umar Hayat, Assisted by Amer Manzoor, Muhammad Waqas Anjum and Syed Naeem Ali for Appellant.

M. Abdul Wadood, Addl. Prosecutor General and Malik Riaz Ahmad Saghla, Deputy Prosecutor General for the State.

Date of hearing: 13th February, 2024.

Judgment

Anwaarul Haq Pannun, J.---Nayyar Abbas, the appellant, was tried in criminal case registered vide FIR No.458/2022 dated 16.08.2022, offence under Section 9(c) of the Control of Narcotic Substances Act, 1997, at Police Station Qadirpur Raan, Multan, as allegedly recovery of two packets of charas total weighing 2250 grams was effected out of his possession.

1. After usual investigation, the appellant was sent up to face trial. Formal charge was framed against the appellant to which he pleaded not guilty and claimed trial. The prosecution examined five witnesses i.e. Sanobar Ali, ASI (PW-1/complainant), Muhammad Hanif, S.I (PW-2/Investigating Officer and transmitter of case property), Abdul Majeed, 2713/C (PW-3/witness of recovery memo. Exh.PA), Asif Sultan, 938/HC (PW-4/scribe of formal FIR and Moharrar of police station) and Abdul Razzaq, 1314/C (PW-5/transmitter of complaint Exh.PA) to prove the charge. Thereafter, statement of the appellant under Section 342, Cr.P.C was recorded, in which he refuted all the allegations levelled against him and professed his innocence. The appellant did not opt to appear as his own witness under Section 340(2), Cr.P.C, however, he produced the documents (Ex.DA, Ex.DB and Mark-C) as his defence evidence. On conclusion of trial, the learned trial Court, vide its judgment dated 15.05.2023, has convicted the appellant under Section 9(c) of C.N.S.A, 1997 and sentenced him to five years and six months R.I. along with fine of Rs.25,000/- and in default thereof to further undergo five months and fifteen days S.I. Benefit of Section 382-B, Cr.P.C has, however, been given to the appellant.

2. Arguments heard. Record perused.

3. The legislature in its own enviable wisdom, while consolidating and amending the laws relating to criminal procedure, at the fag end of 19th Century, enacted the Code of Criminal Procedure (Act of V of 1898) which is commonly known as the Code. It came into force on the first day of July 1898. The Code provides a uniform law of procedure so far as criminal branch of administration of justice is concerned. The Code also contains in it the provisions specifying the procedure, including the mode and manner along with the authority for making search either of a person or a place besides enumerating the circumstances warranting such exercise. A police officer is authorized to search a person if arrested by him under a warrant providing for taking of bail or without warrant or by a private person. A search may be made of such person for placing in safe custody all articles other than necessary wearing apparels found upon him; a mode of searching of a woman has to be made, if necessary, by another woman with strict regard to decency; the police officer is also authorized to arrest any person without warrant, in whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; the officer in-charge of a police station or a police officer making an investigation, having reasonable grounds for believing that anything necessary for the purpose of investigation into an offence which he is authorized to investigate, may be found in any place within the limits of police station, of which he is in-charge or to which he is attached and that such thing cannot in his opinion otherwise be obtained without undue delay may after recording in writing the grounds of his belief and while specifying in such writing so far as possible, the thing for which search is to be made, make such search or cause such search to be made for such thing in any place within the limits of such police station; the officer incharge of police station is required another to issue search warrant. [Under Sections 51, 52, 54, 165 and 166, Cr.P.C. respectively]. The Chapter VII Part-D of Cr.P.C is comprised over General provisions relating to searches i.e. 101 to 105, out of which, the provision of Section 103, Cr.P.C specifically requires that whenever a search of a place is to be made by a police officer under this Chapter, two or more respectable inhabitants of the locality are required to attend and witness the search. He may issue an order in writing to them or any of them to associate with search, consequently the search shall be made in presence of such witnesses and a list of all things seized in course of said search and of places in which they are respectively found, shall also be prepared by such officer or other person and it shall also be signed by such witnesses. No person witnessing the search under this Section shall be required to attend the Court as a witness of search unless he has specifically been summoned by the Court. Moreover, the occupant of place searched or some person on his behalf shall in every instance be permitted to attend the search and a copy of list prepared and signed by the said witness shall be delivered to such occupant or person incharge of the close place allowing such search at his request. This provision of law has been subjected to interpretation by the Superior Courts. A judicial consensus has however emerged to the effect that Section 103, Cr.P.C is not stricto senso applicable where accused in pursuance of making of his disclosure, during investigation leads to some recovery. Similarly, in case, the recovery is effected from personal search of an accused or otherwise, by the police officer, the requirement provided for showing a reason for not doing so, association of two respectable persons of the locality may be dispensed with. Unless it is shown by the prosecution that in the circumstances of the case it was not possible to have two musheer from the public, the requirement of two members of the public of the locality in recovery proceedings is mandatory. The police officials, in absence of any malice or grudge against the accused, on their part, had also been held to be as good witnesses of recovery as the respectable of the locality.

4. The United Nations (UN), International Organization was established on October 24, 1945. The United Nations (UN) was the second multi-purposes international organization established in the 20th century that was worldwide in scope and membership. Its predecessor, the League of Nations, was created by the Treaty of Versailles in 1919 and disbanded in 1946. According to its Charter, the UN aims:-to save succeeding generations from the scourge of war,….to reaffirm faith in fundamental human rights,… to establish conditions under which justice and respect for the obligations arising from treaties and other sources of international law can be maintained, and to promote social progress and better standards of life in larger freedom. In addition to maintaining peace and security, other important objectives include developing friendly relations among countries based on respect for the principles of equal rights and self-determination of peoples; achieving worldwide cooperation to solve international economic, social, cultural, and humanitarian problems; respecting and promoting human rights; and serving as a center where countries can coordinate their actions and activities toward these various ends. By and large all the nations/ countries after becoming its members and signing undertake to fulfil their obligations duly caste upon them being signatories of the charters protocols etc. Through certain International Conventions various steps have been taken by the members of the United Nations at various times. The convention against psychotropic substances done at Viena on 21st February 1971 followed by the Single Convention on Narcotic drugs done at New York on 30 March i.e. (i) The Single Convention on Narcotic Drugs done at New York on the 30th March, 1961, as amended by the 1972 Protocol done at Geneva on the 25th March, 1972; (ii) The Convention Against Psychotropic Substances done at Vienna on the 21st February, 1971; (iii) The United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances done at Vienna on the 20th December, 1988.

5. The legislature deeming it expedient to consolidate and amend the laws relating to narcotic drugs, psychotropic substances, [controlled substances] and control the production, processing and trafficking of such drugs and [to provide for forfeiture of property derived from or used in illicit traffic in narcotic drugs, psychotropic substances and controlled substances and to implement the provisions of the International Conventions on narcotic drugs, psychotropic substances and controlled substances]; passed a special law, having overriding effect on other laws on the subject, in the form of The Control of Narcotic Substance Act (XXV) of 1997 hereinafter to be called as "CNSA", and it received the assent of the President of Islamic Republic of Pakistan on 7th July, 1997 as required under Article 75 of the Constitution. Pakistan is an abiding member of the United Nations (UN). For achieving its object as aforesaid, behind the legislation, the provisions contained in Chapter III "SEARCH AND INVESTIGATION" of CNSA also provide a mechanism for conducting the proceedings viz-a-viz search and investigation. These provisions (20 to 24) distinctly deals with the power to issue warrants; entry, search, seizure and arrest without warrant; seizure and arrest in public place; stop and search conveyance; under cover and controlled delivery operations. However, under Section 25 of CNSA, except the provision of Section 103 of Cr.P.C, the remaining provisions of Code, have mutatis mutandis, been made applicable to all searches and arrest in, so far as, they are not inconsistent with the aforesaid Provisions of the ibid Act. It is important to point out that as a result of arrest of a suspect or search of a place, as aforesaid, committing or disclosing the commission of an offence under this Act, as a mandatory legal requirement, a document has to be prepared, showing the recovery made either from the possession or on pointing out of an accused. Such document also known as recovery memo. is deemed to be a foundational document particularly in case of theft and the cases under CNSA, to undertake further investigation after registration of a formal FIR. One of the object behind preparing the recovery memo. at the spot with its due attestation by the witnesses is to ensure the fairness of the process of recovery so as to exclude the possibility of fabrication, misappropriation or damage to the seized articles either to favour an accused or for his false implication. The recovery memo. must contain all relevant particulars of the things seized or taken into possession to establish its identity beyond any doubt. The requirement behind attestation of a recovery memo. by the marginal witnesses at the spot is a part of an attempt to ensure that the recovery has transparently been effected as fulfillment of such requirements is necessary to exclude the possibility of false implication or any manipulation prompted by the human weaknesses and to prevent the abuse of process of law and misuse of authority. The attestation of the recovery memo. by two witnesses acting as musheer also ensures that a single person at his whims may not abuse the process of law and misuse his authority. The preparation of such recovery memo. is also necessary to prove the case by the prosecution at trial against the accused. The Hon'ble Supreme Court in the case of "Zafar Khan and others v. The State" (2022 SCMR 864) emphatically held as under:-

2025 Y L R 86

[Lahore]

Before Tariq Saleem Sheikh, J

Tariq Mehmood---Petitioner

Versus

Additional Sessions Judge/Ex-Officio Justice of Peace

and 2 others---Respondents

Writ Petition No. 68498 of 2022, heard on 15th December, 2023.

Criminal Procedure Code (V of 1898)---

----Ss. 561-A, 22-A & 154---Penal Code (XLV of 1860), S. 489-F---Inherent powers of High Court under S. 561-A, Cr.P.C.---Scope---Powers of Ex-officio Justice of Peace---Order passed by Ex-officio Justice of Peace for the registration of FIR under S.489-F, P.P.C---Petitioner assailed order passed by Ex-officio Justice of Peace and sought quashing of the same---Petitioner borrowed Rs. 400,000/- from complainant and issued post-dated cheque for its repayment, but it was dishonoured upon presentation due to insufficient funds---Petitioner neither disputed his signature on the cheque nor that it was drawn on his account---Section 154, Cr.P.C., mandated the officer in charge of a police station to register FIR when informed about the commission of a cognizable offence---Officer in charge of a police station could not determine the veracity of the information/allegations at such stage---Application under S.22-A, Cr.P.C., submitted by complainant prima facie indicated the commission of a cognizable offence---Therefore, the SHO must proceed under S.154, Cr.P.C. and investigate the various aspects of the case---Impugned order did not require interference by the Court---Petition had no merit and was accordingly dismissed.

Muhammad Waqas Mirza for Petitioner.

Ms.Khalida Parveen, Additional Advocate General with Muhammad Mansha/ASI for Respondents Nos. 1 and 2.

Rana Waqar Ahmad Khan for Respondent No. 3.

Date of hearing: 15th December, 2023.

Judgment

Tariq Saleem Sheikh, J.---Respondent No. 3 filed an application under section 22-A of the Cr.P.C. with the Ex-officio Justice of Peace, Kamoke, stating that Tariq Mehmood (Petitioner herein) was a close friend. On 02.02.2022, the Petitioner borrowed Rs. 400,000/- from him and issued Cheque No. 57628358 post-dated 04.07.2022 for its repayment, but it was dishonoured upon presentation due to insufficient funds. Respondent No. 3 alleged that the Petitioner had dishonestly given him a bad cheque and had thereby committed a cognizable offence under section 489-F, P.P.C. He prayed that a direction be issued to the Respondent SHO to register an FIR against him. The Ex-officio Justice of Peace accepted his application vide order dated 31.10.2022 (the "Impugned Order"). The Petitioner has assailed that order before this Court through this petition under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973.

1. Mr. Muhammad Waqas Mirza, Advocate, submits that Cheque No.57628358 on the basis of which Respondent No.3 seeks to get a criminal case registered against the Petitioner is a "self-cheque," i.e. a cheque issued by the account holder to "himself". He contends that criminal liability under section 489-F, P.P.C. cannot arise for such a cheque because it does not meet the essential elements of the offence.

2. On merits, Mr. Mirza contends that the Petitioner manufactures leather gloves, and the sister of Respondent No.3, Gul-e-Hina, invested money with him on a profit-and-loss basis. According to him, the Petitioner gave her Cheque Nos. 57628356 and 57628358 for comfort. However, he suffered huge losses due to the Covid-19 pandemic and eventually closed his business. Gul-e-Hina passed over Cheque No.57628358 to Respondent No.3, who concocted a false story and filed an application under section 22-A, Cr.P.C. for registration of FIR as aforesaid and procured the Impugned Order. Mr. Mirza contends that he never obtained any loan from Respondent No.3.

3. Ms. Khalida Parveen, Additional Advocate General, has vehemently opposed this petition. She argues that Cheque No. 57628358 is payable to "self or bearer." The Petitioner's claim that section 489-F P.P.C. does not apply to such instruments is based on a misconception.

4. Rana Waqar Ahmad Khan, Advocate, has supported the Assistant Advocate General, adding that the application of Respondent No.3 under section 22-A of the Cr.P.C. discloses the commission of a cognizable offence. Hence, the Ex-officio Justice of Peace was justified in directing the registration of an FIR. Mr. Khan contends that the defence plea is unfounded, as the Petitioner issued Cheque No. 57628358 to settle a debt with Respondent No. 3. He points out that conflicting claims exist, and the truth can only be determined through an investigation initiated after the registration of the FIR. This Court cannot adjudicate on the correctness of either plea in the current proceedings.

5. Heard. Respondent No.3 seeks to prosecute the Petitioner under section 489-F, P.P.C. which provides:

489-F. Dishonestly issuing a cheque. - Whoever dishonestly issues a cheque towards repayment of a loan or fulfillment of an obligation which is dishonoured on presentation, shall be punishable with imprisonment which may extend to three years, or with fine, or with both, unless he can establish, for which the burden of proof shall rest on him, that he had made arrangements with his bank to ensure that the cheque would be honoured and that the bank was at fault in not honouring the cheque.

1. The purpose of enacting section 489-F, P.P.C. was to foster confidence in the banking system and trustworthiness in conducting business through cheques. This provision was designed to proactively deter individuals from engaging in dishonest practices - specifically, drawing cheques without sufficient funds in their bank accounts, thereby inducing the payee to act upon the transaction with a false sense of security.

2. The canons for the interpretation of penal statutes are well settled. In Mirza Shaukat Baig and others v. Shahid Jamil and others (PLD 2005 SC 530), the Supreme Court of Pakistan held:

"(1) All penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as an offence is within the plain meaning of the words used and must not strain the words on any notion that there has been a slip, that there has been a casus omisus, that the thing is so clearly within the mischief that it must have been intended to be included and would have been included if thought of. On the other hand, the person charged has a right to say that the thing charged, although within the words, is not within the spirit of the enactment. But where the thing is brought within the words and within the spirit there a penal enactment is to be construed like any other instrument according to the fair common sense meaning of the language used, and the court is not to find or make any doubt or ambiguity to the language of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any other instruments.

"(2) Criminal enactments are not to be extended by construction. When an offence against the law is alleged, and when the court has to consider whether that alleged offence falls within the language of a criminal statute, the court must be satisfied, not only that the spirit of the legislative enactment has been violated, but also that the language used by the legislature includes the offence in question, and makes it criminal.

"(3) Nothing is to be regarded as within the meaning of the statute which is not within the letter - which is not clearly and intelligibly described in the very words of the statute itself.

"(4) Also, in the interpretation of Acts, the elementary rule is to give full and accurate effect to every word used in them. The courts in the exposition of penal statutes, are not to narrow the construction. They are to look at the words in the first instance, and where the words are plain, they are to decide on them. If the words be doubtful, they are then to have recourse to the subject matter, but at all events, it is only a secondary rule. It is not the province of a judge to disregard or go outside the letter of the enactment according to its true construction."

1. Section 489-F, P.P.C. should be interpreted following the principles outlined above. This provision does not apply to every instance of a dishonoured cheque. The foundational elements to constitute the offence are: (i) the cheque was duly issued; (ii) it was issued with dishonest intent; (iii) it was issued towards repayment of a loan or fulfilment of an obligation; and (iv) it was dishonoured on presentation. In Muhammad Sultan v. The State (2010 SCMR 806), the Supreme Court of Pakistan held that "fulfillment of an obligation" is a broad term and is, inter alia, applicable to all lawful agreements and contracts.

2. Section 489-F, P.P.C. is not a strict liability offence, which is evident from the word "dishonestly" used therein. Section 24 of the P.P.C. defines the term "dishonestly" to mean anything done with the intention of causing wrongful gain to one person or wrongful loss to another. Whether the issuer/drawer of a cheque has issued it dishonestly is a question of fact that the prosecution must establish in every case.

3. In the present case, Cheque No.57628358 specifies: "Pay Self or bearer". The word "self" is handwritten while "or bearer" is printed. The first question that needs determination is whether criminal proceedings under section 489-F, P.P.C. can be initiated against the issuer of a cheque made out to oneself in the event of dishonour. To answer this query, we must delve into the definition of a cheque.

4. Section 6 of the NIA defines a "cheque" as "a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand." Section 5 of the Act defines "bill of exchange" and explains that a bill of exchange may be drawn in the name of a particular person, or payable to his order or bearer. Section 3(c) of the NIA states, "bearer" means a person who by negotiation comes into possession of a negotiable instrument, which is payable to bearer." Negotiation can be by delivery (section 47) or endorsement (section 48). A cheque payable to the bearer can be negotiated through simple delivery, whereas one payable to order requires endorsement. Thus, a bearer cheque has an independent legal standing and identity and does not depend on any endorsement for its validity. Linking its validity and independent status with any positive endorsement is inappropriate.

5. A review of the above provisions shows that a cheque is a kind of bill of exchange with certain peculiarities. In view of section 5, ibid, where the payee is a fictitious or non-existing person, it may be treated as payable to the bearer.

6. A "self-cheque" has neither been defined by the Pakistan Penal Code nor the Negotiable Instruments Act, 1881 (the "NIA"). Essentially, it refers to a cheque where the drawer is also the payee.

7. Section 489-F, P.P.C. does not stipulate that the cheque must be in the name of a specific individual. It simply requires that the person drawing the cheque does so from his own account, and the purpose should be for loan repayment or fulfilling a legal obligation. If the cheque is made to "self" only, no offence is committed. Firstly, a person cannot dishonestly issue a cheque to pay money to himself, and secondly, a person cannot give a cheque for the payment of a loan or to fulfil an obligation that one has towards oneself.

8. When a cheque is addressed as payable to "self or bearer" (and the word "bearer" is not scored off), any person who qualifies as a "holder in due course" under section 9 of NIA can initiate legal action under section 489-F, P.P.C., provided they satisfy the elements of the offence described in paragraph 9 above. An individual asserting the status of a holder in due course must also substantiate their claim if challenged.

9. Section 118 of the NIA outlines certain presumptions about negotiable instruments, but these do not extend to section 489-F, P.P.C. The latter provision exclusively governs the prosecution of the offence. Significantly, it does not raise any statutory presumption in favour of the holder of a cheque.

10. India has criminalized the dishonour of cheques by inserting section 138 in the Indian Negotiable of Instruments Act, 1881 (the "Indian Act"), which shares some similarities with Pakistan.s section 489-F, P.P.C. The Indian courts have considered the issue of criminal liability of a self-cheque in a catena of cases. In Mahesh Goyal v. S.K. Sharma (1997 Cri.LJ 2868 (P and H)), the Punjab and Haryana High Court held that if other conditions are met, merely because the cheque is addressed to self does not exempt it from the applicability of section 138 of the Indian Act. Once the cheque has been given for valid consideration, the respondent must be considered a holder in due course. The Kerala High Court, in Michael Kuruvilla v. Joseph J Kondody, [1998(2) Andh. LD (Cri) 957) (Ker)], following the judgment of the same Court in A.K. Hameed v. Appakutty (AIR 1969 Ker. 189), and considering the definition of "holder in due course" under section 9 of the Indian Act (analogous to section 9 of the NIA), held that even if the cheque lacks the payee's name, the printed words "or bearer" are struck off, and it is written "pay to cash," it remains a legal and valid negotiable instrument. It must be implied that the direction is to pay to the bearer, and there is no evidence to suggest that the appellant cannot be treated as a holder in due course under section 9 of the Indian Act. With these observations, the learned Judge overturned the trial court's judgment, finding the accused guilty of the offence under section 138 of the Indian Act, and convicted him accordingly. In Intech Net Limited and others v. State and another, (2007 Cri.LJ 216), Andhra High Court held:

"Once the issuance of the cheques is admitted and as the words "or bearer" have not been struck off, the complainant is held to be the holder of the said cheques in due course though it was written as self and thus he is entitled to receive the cash and on dishonouring of the said cheques, he can very well file the complaint. The contention of the petitioners that the said cheques was issued in the process of transaction between the first petitioner and the complainant for supply of goods has to be substantiated during the course of trial by the petitioners by leading evidence. Under these circumstances, I see no ground to quash the impugned proceedings at this stage."

1. In Dr. Shreeyansh Rayappa Nandeshwar v. Dr. Prakash Ponde, the Karnataka High Court held:

"Having perused the principles laid down in the Judgment, the very contention that there is no endorsement and the self cheque does not attract Section 138 of the [Indian Act], cannot be accepted at this juncture."

Further reference can be made to Farhat Hussain Siddiqui v. State of U.P. and another (2010 Cri.LJ 1213), B. Sarvothama v. S.M. Haneef (2013 SCC OnLine Ker 5328), Adigear International v. State (2013 SCC OnLine Del. 4938) and Sarafudheen v, T. Muhammed Ashraf [2016 (3) ILR (Kerala) 645].

1. While there are similarities between Pakistan's section 489-F, P.P.C. and section 138 of the Indian Act, they differ substantively. As adumbrated, the most crucial distinction is that the vital ingredient of the section 489-F, P.P.C. is the dishonest issuance of a cheque, a requirement that every holder of a cheque, including the bearer of a self-cheque, must establish.

2025 Y L R 97

[Lahore]

Before Abid Aziz Sheikh, J

Ch. Shaukat Ali Daulla and 15 others---Petitioners

Versus

Province of Punjab through Chief Secretary Punjab, Lahore and 6 others---Respondents

Writ Petition No. 57167 of 2024, heard on 12th November, 2024.

Colonization of Government Lands (Punjab) Act (V of 1912 )---

----S.10---Punjab Local Government Act (XXXIII of 2022), Ss. 94 & 96---Punjab Local Government (Property) Rules, 2018---Auction policy dated 30-09-2019 issued under S.10 of Colonization of Government Lands (Punjab) Act, 1912---Shops leased out by the Local Government---Re-auction proceedings, challenging of---Petitioners (lessees/ occupants of shops (shops-in-question) filed constitutional petitions to challenge auction proceedings of shops-in-question---Contention of petitioners was that rent for the shops leased out by the Local Government would only be enhanced by following the procedure prescribed under Ss. 94 & 96 of the Punjab Local Government Act, 2022, according to different categories of lease after fresh assessment by the Rent Assessment Committee---Submission of the Official Respondents was that the shops- in-question were in the ownership of the Provincial Government being shown in column of the ownership of the Revenue Record, yet managed by the Local Government, auction of which were being conducted under auction policy dated 30-09-2019 issued under S.10 of Colonization of Government Lands (Punjab) Act, 1912, as per decision taken in meeting of Board of Revenue (BOR) under the Chairmanship of Senior Member, Board of Revenue---Validity---Record reveal that most of the petitioners (occupants/lessees) had already participated in the impugned auction proceedings and had also been declared successful bidders and were retaining the shops , apparently agreeing with the fresh assessment of rent of the shops-in-question---High Court disposed of the matters directing the relevant Committee to examine the cases of petitioners individually and in case they agreed with the enhanced rent as assessed, the proceedings might be finalized to their extent; however, those petitioners to whom fresh assessment of rent was not acceptable, their cases might be decided through reasoned and speaking orders and those petitioners would be at liberty to challenge the said orders as well the auction proceedings, if so advised, before appropriate forums---Constitutional petitions were disposed of accordingly.

Mian Dawood, Akhtar Ali Chisthi, Ms. Shazia Pervaiz Butt, Muhammad Alamgir Khan, Muhammad Zaman Mangant, Muhammad Arslan Ayyaz, Mumtaz Ali Phulewan, Muhammad Rizwan-ul-Hassan, Hassan Safdar Khan, Umer Bin Munawar, Maqsood Ahmad Ch., Muhammad Shaban Ali, Malik M. Afzal Khokhar, Ms. Madiha Farooq Sheikh, Asif Mehmood Khan, Muhammad Usamah Safdar and Ch. Muhammad Hussain for the Petitioners.

Muhammad Jameel Ashraf Chohan, Omer Farooq Khan, Assistant Advocate General, Punjab along with Ateeq-ur-Rehman, Advocate/Legal Advisor M.C Renala, Mian Sarfraz Ahmad Watto, Legal Advisor, MC Depalpur, Baseerpur, Muhammad Umer Tayyab, Additional Deputy Commissioner, Okara, Arham Nazir, Chief Officer, MC Baseerpur, Muhammad Latif, Tax Superintendent, MC Baseerbur, Pervaiz Ahmed, Court Clerk, MC Clerk, Munir Ahmed, Clerk, Municipal Committee and Zaheer Ahmad, Tehsildar Renala Kurd for Respondents.

Date of hearing: 12th November, 2024.

Order

Abid Aziz Sheikh, J.---This consolidated order will also decided writ petitions mentioned in Appendix-A, as common questions of law and facts are raised in all these petitions.

2 In this and connected writ petitions, petitioners have inter alia challenged the auction advertisement, for the shops in question for the enhancement of rent. Relevant facts which are more or less common in all these petitions are that shops in question are owned by the Provincial Government, however, the same are being managed by the Local Government, which has leased out the said shops to the various occupants/ lessees. Through the impugned advertisements, the said shops are being advertised for lease through re-auction which is assailed through these constitutional petitions.

1. The main contention of petitioners side is that rent for the shops leased out by the Local Government can only be enhanced by following the procedure prescribed under section 94 of the Punjab Local Government Act, 2022 (Act) read with Punjab Local Government (Property) Rules, 2018 (Rules), according to which, there are different categories of lease; the first category is where there is valid lease agreement which has expired or about to be expired and it does contain the condition for extension. For such lease, under section 94(6) of the Act, lease can be extended after the fresh assessment is made by the Rent Assessment Committee (Committee). The second category is where there is no written lease agreement available but the occupant paying the relit for more than five years and in such cases, the Local Government may enter into written agreement with occupant for period not more than five years, after fresh assessment by the Rent Assessment Committee with 10% annual increase under section 96 (7) of the Act. The third situation is under section 96(8) of the Act where lessee and occupant failed to enter into agreement under above two categories and in such situation, the shops/property can be put to auction as prescribed in section 96(3) of the Act.

2. Learned counsel for the petitioners submit that almost all of these cases falls in second category, being no written lease agreement available but occupants paying rent for more than five years, therefore, unless the rent rate is assessed afresh by the Committee, shops cannot be put to auction as required under section 94(7) of the Act. The other contention of the petitioners is that power to re-auction under section 94 of the Act can only be exercised by the elected Local Government and not by the "Administrators" who can only carry out day today functions of local government. Submits that this legal position is also determined by this Court in Malik Mazhar Hussain Goraya v. Government of Punjab and others (PLD 2023 Lahore 257) and Writ Petition No.70681/2023 vide judgment dated 15.11.2023. Learned counsel further submits that in earlier round of litigation (by some other petitioners) in Writ Petition No.45176/ 2021, the undertaking was given by the then Chief Secretary, Government of Punjab, (recorded in order dated 28.7.2021), that unless transition plan of local government is submitted before the Court, the Administrators shall only carry out day today work and will not auction the lease property or enhanced the lease money. Submits that in pursuant to above undertaking, formal notification dated 29.7.2021 was also issued by the then Chief Secretary. However, admitted that said Writ Petition No.45176/2021 was finally disposed of vide order dated 11.11.2021, mainly for the reason that matter for implementation of Supreme Court judgment is pending before the Supreme Court. Learned counsel further submits that the policy notification dated 30.9.2019 was issued for the disposal of Estate or Nazool land of Provincial Government through sale and lease, however, said notification is not applicable to the shops in question being managed by the Local Government.

4.(sic) Learned Law Officer on the other hand submits that shops in question are admittedly in the ownership of the Provincial Government which is also shown in column of the ownership of the Revenue Record, however, said shops were managed by the Local Government, which had leased out these shops to the various occupants/lessees. He submits that Board of Revenue (BOR) under the Chairmanship of Senior Member, Board of Revenue held meeting on 30.11.2023 and inter alia decided as under:-

13. After detailed deliberations, the following decisions were made:-

i. State land can only be disposed of according to the prevailing policy of the Government which has been issued under section 10 of the Colonization of Governments Lands Act, 1912. Further State land is administered under the Colonization of Government Lands Act, 1912 so State lands shall be auctioned as per policy 30.9.2019.

ii. The lands which have been recorded as provincial government in the column of ownership of revenue record will be required to be dealt with under the Colonization of Governments Lands Act, 1912 and policies issued thereto, whereas the lands which have been incorporated as Local government entities in ownership column of revenue record are obligated to be processed under the PUNJAB LOCAL GOVERNMENT ACT, 2022 (Act XXXIII of 2022) read with Punjab Local Government Property Rules, 2018 and policy circulars issued thereunder.

2025 Y L R 116

[Lahore]

Before Shehram Sarwar Ch. and Ali Zia Bajwa, JJ

Khalil Ahmad and others---Appellants

Versus

The State and others---Respondents

Criminal Appeal No. 78847-J and Murder Reference No. 375 of 2019, decided on 14th September, 2023.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of the eye-witnesses at the time and place of occurrence not proved---Chance witnesses---Accused were charged for making firing upon the complainant party, due to which the brother and servant of the complainant were hit and died---Ocular account in the case was furnished by the prosecution through the statements of complainant, his brother and cousin---All the said witnesses claimed that they along with both the deceased were present at the place of occurrence and in their presence the accused persons along with their co-accused made firing upon the deceased---According to the prosecution version, the occurrence took place at 6:00 a.m. and soon thereafter the complainant reached the police station where on his application, FIR was chalked out---Thereafter investigation was entrusted to Incharge Homicide of Police Station who reached the place of occurrence and after completing police papers, he dispatched the dead bodies to mortuary---As per statement of the Medical Officer, the dead body of deceased brother of complainant was received in the mortuary at 11:00 a.m. while dead body of other deceased was received there at 2:00 p.m.---Police papers in respect of both the dead bodies were received at 5:00 p.m. i.e. with a delay of eleven hours after the occurrence---After conducting the postmortem examination, the Medical Officer opined that probable duration between the death and the postmortem examination was about eight to twelve hours---Said aspect straightway raised serious question qua the presence of the eyewitnesses at the spot---Although according to the prosecution version, the accused persons were so callous that they made repeated fire shots upon both the deceased, however, surprisingly they let off the complainant and other witnesses unhurt, who witnessed the occurrence---Such fact knocked mind of the Court that if the assailants were so furious and desperate to commit the occurrence, why they spared the prosecution witnesses, who were none else but real brothers and cousin of the deceased---All the said facts clearly suggested that had the prosecution witnesses been present at the place of occurrence, they must have not been left unhurt by the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Farooq and another v. The State 2006 SCMR 1707 rel.

(b) Criminal trial---

----Postmortem examination---Delay in conducting the postmortem examination---Effect---Delayed postmortem leads to an inference that the FIR is lodged at a belated stage and time is consumed in deliberations and consultations qua the implication of the accused persons and planting the eye-witnesses.

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

(c) Criminal trial---

----Related and interested witnesses, evidence of---Reliance---Mere relationship of the prosecution witnesses with the deceased is no ground to discard their evidence provided the same is straightforward and confidence-inspiring---However, Court, as a matter of caution, should seek corroboration from the other independent evidence available on the record.

Anwar Shamim and another v. The State 2010 SCMR 1791 and Mst. Shazia Parveen v. The State 2014 SCMR 1197 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Medical evidence and ocular account---Contradiction---Accused were charged for making firing upon the complainant party, due to which the brother and servant of the complainant were hit and died---According to the statement of draftsman, who prepared scaled site plan, the firing was made from a distance of 13-karam---Medical Officer who conducted the postmortem examination over the dead bodies, observed black margins at the point of Injury No.1-A on the person of one deceased and Injury No.2-A on the person of other deceased---Moreover, according to contents of the crime report, private complaint as well as statement of the complainant, co-accused made a fire shot with his rifle, which landed at the right buttock of deceased brother of complainant, which was found as an exit wound---Thus, it was crystal clear that the medical evidence conflicted with the ocular account, and benefit of such conflict would go in favor of the accused persons---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Farooq and another v. The State 2006 SCMR 1707 and Abdul Jabbar and another v. The State 2019 SCMR 129 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of weapons of offence on the pointation of accused persons---Accused were charged for making firing upon the complainant party, due to which the brother and servant of the complainant were hit and died---Record showed that rifle .44-bore was recovered on the pointing out of one accused, .44-bore rifle was recovered on the pointing out of other accused while Kalashnikov was recovered on the pointing out of another accused---Said weapons were sent to the office of Forensic Science Laboratory, however, they did not match with the crime empties collected from the place of occurrence---Therefore, the recoveries lent no corroboration to the prosecution case, which was founded on the evidence of related and chance witnesses---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged for making firing upon the complainant party, due to which the brother and servant of the complainant were hit and died---According to the prosecution version it was alleged that there was previous enmity between both sides---While appearing in the dock on oath, all the prosecution witnesses admitted that the complainant and his deceased brother as well as other relatives were involved in number of criminal cases and in FIR No.99/2013, under S.302, P.P.C, registered at Police Station, two co-accused were cited as eyewitnesses against them---Even the complainant and deceased were convicted by Court, in one case---Motive is always considered as a double edged weapon---At the one hand, if it gives a reason or motivation to the accused to commit the crime, on the other hand, it equally provides impetus to the complainant to falsely implicate the accused in the case to satisfy the lust of rivalry---Moreover, motive is not substantive piece of evidence rather same is merely a circumstance, which may lead the accused to commit the occurrence---Circumstances established that the prosecution had failed to prove its case against the accused persons beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances.

Muhammad Ashraf alias Acchu v. The State 2019 SCMR 652 and Akbar Ali v. The State 2007 SCMR 486 rel.

(g) Criminal trial---

----Benefit of doubt---Principle---For extending the benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right.

Najaf Ali Shah v. The State 2021 SCMR 736; Muhammad Mansha v. The State 2018 SCMR 772; Naveed Asghar and 2 others v. The State PLD 2021 SC 600; Ayub Masih v. The State PLD 2002 SC 1048 and the State through P.G. Sindh and others v. Ahmed Omar Sheikh and others 2021 SCMR 873 rel.

Rana Imtiaz Hussain, Rai Bashir Ahmad and Shahid Rafique Meo for Appellants.

Sultan Akbar Chattha, Deputy Prosecutor General for the State.

Muhammad Ahsen Nizami for the Complainant.

Date of hearing: 14th September, 2023.

Judgment

Ali Zia Bajwa, J.---Through this single judgment, we intend to decide Crl. Appeal No. 78847-J/2019 titled `Khalil Ahmad and 2 others v. The State' filed by Khalil Ahmad, Amanat Ali and Akbar appellants and Murder Reference No.375/2019 titled 'The State v. Khalil Ahmad' forwarded by the trial' court under Section 374, Cr.P.C for confirmation or otherwise of death Sentence awarded to the convict/Khalil Ahmad, as these are arising out of one and the same judgment dated 21.10.2019 (hereinafter 'the impugned judgment'), passed by Additional Sessions Judge/Judge MCTC, Kasur (hereinafter 'trial court').

1. Khalil Ahmad son of Sardar, Amanat Ali son of Charagh and Akbar son of Shahbaz, all Dogar by caste and residents of Village Ganda Singh Wala, Kot Radha Kishan, District Kasur (herein after 'the appellants') along with co-accused namely Younas, Shahbaz; Charagh and Muhammad Ashraf alias Bhola (all since acquitted), Yahya and Ibrahim (both since P.Os) were implicated in case No.336/2018, dated 04.06.2018 offences under Sections 302, 148 and 149, P.P.C. registered with Police Station Kot Radha Kishan, District Kasur. Being aggrieved with the investigation carried out by the local police, the complainant preferred to file a dire and complaint against the accused persons titled "Ihsan v. Amanat Ali and others" under Sections 302, 148 and 149, P.P.C.

2. On filing of complaint, trial court recorded preliminary/cursory statements of the prosecution witnesses and issued process against the accused/respondents. They were tried by the trial court under the aforementioned offences. Trial court seized with the matter, vide the impugned judgment, acquitted aforesaid co-accused whereas convicted and sentenced the appellants as under:-

| | | | | --- | --- | --- | | Sr. No. | Name of the Appellant | Conviction and Sentence | | 1. | Khalil Ahmad | · Under Section 302(b), Sentenced to death as Ta'zir with direction to pay Rs.5,00,000/- as compensation to the legal heirs of the deceased Yaqeen Ali, in terms of Section 544-A, Cr.P.C., and in case of deault in payment thereof, to undergo simple imprisonment for six months. · Under Section 148, P.P.C., sentenced to undergo rigorous imprisonment for two years. | | 2. | Akbar | · Under sections 302(b)/149, P.P.C., sentenced to undergo imprisonment for life as Ta'zir with direction to pay Rs. 3,00,000/- as compensation to the legal heirs of the deceased Muhammad Irfan, in terms of Section 544-A, Cr.P.C., and in case of default in payment thereof, to further undergo simple imprisonment for six months. · Under Section 148, P.P.C., sentenced to undergo rigorous imprisonment of two years. | | 3. | Amanat Ali | · Under Section 302(b)/149, P.P.C., sentenced to undergo imprisonment for life as Ta'zir with direction to pay Rs. 3,00,000/- as compensation to the legal heirs of the deceased Muhammad Irfan, in terms of Section 544-A, Cr.P.C., and in case of default in payment thereof, to further undergo simple imprisonment for six months. · Under Section 148, P.P.C., sentenced to undergo rigorous imprisonment for two years. | | · The sentences awarded to Akbar and Amanat Ali appellants were directed to run concurrently and benefit of Section 382-B, Cr.P.C. was also extended in their favour. | | |

1. The prosecution theory of the case as given in the impugned judgment has been reproduced as under:

"....that there is enmity between them and Charagh son of Mandha. Their land is near the land of Charagh where the maize corp was ripe. On 4.6.2018 at about 6:00 a.m his brother Muhammad Irfan had gone to maize crop for harvesting and supervision along with their servantYaqeen Ali son of Muhammad Ramzan while riding on motor cycle where accused Charagh and Shahbaz due to previous enmity were present. Accused Yahyah, Ibrahim, Akbar, Amanat, Younas, Khalil and Ashraf alias Bhola while armed with fire arms were present. On raising Lalkara raised by accused Charagh and Shahbaz, accused Yahyah made fire shot with his rifle which landed on the left side of head of Irfan. Accused Ibrahim made fire shot with his rifle which landed near the testis of Irfan on right side. Accused Akbar made fire shot with his rifle which hit on the left and right hip joint of Irfan. Thereafter accused Amanat made fire shot with his rifle which hit Irfan on the back of his left hand. Then accused Younas made fire shots with his rifle which landed on near the right thigh of Irfan. Accused Yahyah made fire shot with his refile which landed on the back side of his right thigh. Then accused Khalil while armed with rifle fired at Yaqeen Ali which landedon his chest. The occurrence was witnessed by Ihsan Ali, Muhammad Jamil, Abdul Ghafoor and Muhammad Saleem. Irfan succumbed to the injuries at the spot whereas Yaqeen Alie died in the way while they were taking him for first aid.

1. the complainant narrated the motive that there was previous enmity between the complainant and the accused persons, therefore they have committed the murders of their servant Yaqeen Ali and Irfan."

2. The complainant in order to establish his case produced six (6) prosecution witnesses. Trial court also recorded statements of ten (10) court witnesses. After completion of the prosecution evidence, statements of the appellants as envisaged under Section 342, Cr.P.C. were recorded by the trial court, who professed their innocence and pleaded false implication in this case. Upon completion of the trial, the trial court found the prosecution case having been proved to the hilt; thus, convicted and sentenced the appellants as mentioned and detailed above. However, Younas, Shahbaz, Charagh and Muhammad Ashraf alias Bhola co-accused were acquitted of the charges.

3. We have heard the arguments advanced by learned counsel for both sides and perused the record available on file.

4. In order to establish its case the prosecution led evidence in the shape of ocular account, medical evidence, recovery and motive.

5. Ocular account in this ease was furnished by the prosecution through the statements of Muhammad Ehsan complainant (PW-1), Abdul Ghaffar (PW-2) and Muhammad Saleem (PW-3). PW- 1/complainant and PW-3 are real brothers inter-se as well as of the Muhammad Irfan deceased while PW-2 is their cousin. As far as presence of the prosecution witnesses at the place of occurrence at the relevant time is concerned, all of them claimed that they along with both the deceased were present at the place of occurrence and in their presence the appellants along with their co-accused made firing upon the deceased. According to the prosecution version, the occurrence took place at 6:00 a.m. and soon thereafter the complainant reached the police station where on his application, FIR was chalked out by Shoukat Ali S.I. (CW-1). Thereafter investigation was entrusted to Ghulam Abbas, A.S.I. (CW-9), Incharge Homicide of Police Station Kot Radha Kishan who reached the place of occurrence and after completing police papers, he dispatched the dead bodies to mortuary. Record available on the file further reflects that, as per statement of the doctor (CW-5), the dead. body of Muhammad Irfan deceased was received in the mortuary at 11:00 a.m. while deal body of Yaqeen Ali deceased was received there at 2:00 p.m.. Police papers in respect of both the dead bodies were received at 5:00 p.m. i.e. with a delay of eleven hours of the occurrence. After conducting the postmortem examination, the doctor opined that probable duration between the death and the postmortem examination was about eight to twelve hours. This aspect straightway raises serious question qua the presence of the eye-witnesses at the spot. It is settled law by now that delayed postmortem leads to an inference that the FIR was got lodged at a belated stage and the time was consumed in deliberations and consultations qua the implication of the accused persons and planting the eye-witnesses. In SUFYAN NAWAZ while extending the benefit of doubt on the ground that autopsy was carried out with a delay of ten hours, Supreme Court of Pakistan observed that such delay creates serious doubts qua the presence of the eye-witnesses at the place of occurrence. Relevant extract of the judgment has been reproduced hereinafter:-

"As per postmortem examination report, autopsy on the dead body of Kabeer Ahmad was conducted on 24.10.2005 at 10.00 p.m. The unexplained delay of about ten hours in autopsy of Kabeer Ahmad (deceased) alone creates dent in the prosecution story so far as presence of eye-witnesses at the place of occurrence is concerned."

1. Presence of the eye-witnesses at the place of occurrence at the relevant time becomes further doubtful, considering the fact that although it was claimed by the prosecution that the PWs had gone to the fields of their brother, however, no evidence whatsoever was brought on the record that for what purpose the prosecution witnesses had approached the place of occurrence at early hours of the day.

2. Admittedly the ocular account in this case consists of the statements of close relatives as complainant and PW-3 are real brothers inter-se as well as of Muhammad Irfan deceased while PWI -2/Abdul Ghaffar is their cousin. As discussed above, the eye-witnesses could not establish any plausible justification for their presence at the place of occurrence at the relevant time, therefore, at the most they can be clubbed as related and chance witnesses. Though mere relationship of the prosecution witnesses with the deceased is no ground to discard their evidence provided the same is straightforward and confidence-inspiring but Court, as a matter of caution, should seek corroboration from the other independent evidence available on the record. Insistence on corroboration is not a rule of law but of prudence In Mst. Shazia Parveen the Supreme Court of Pakistan observed as under:

"All the eye-witnesses produced by the prosecution were closely related to the deceased and they were admittedly chance witnesses who had failed to bring anything on the record to establish the stated reason for their availability near the deceased at the relevant time."

During the course of trial the prosecution tried to establish that the prosecution witnesses had witnessed the occurrence from a close range. Although according to the prosecution version, the appellants were so callous that they made repeated fire shots upon both the deceased, however, surprisingly they let off the complainant (having similar pedestal of rivalry), PW-2 and PW-3 unhurt, who witnessed the occurrence. It knocks mind of the Court that if the assailants were so furious and desperate to commit the occurrence, why they spared the prosecution witnesses, who were none else but real brothers and cousin of the deceased. All the above facts clearly suggest that had the prosecution witnesses been present at the place of occurrence, they must have not been left unhurt by the appellants.

1. According to the statement of the draftsman (CW-7), who prepared scaled site plan (Exh.CW-7/1) the firing was made from a distance of 13-karam. Dr. Muhammad Javaid (CW-5) conducted the postmortem examination over the dead bodies, who observed black margins at the point of Injury No.1-A on the person of Yaqeen Ali deceased and Injury No.2-A on the person of Muhammad Irfan deceased. Moreover, according to contents of the crime report, private complaint as well as statement of the complainant, Younas co-accused (since acquitted and no appeal against his acquittal was filed) made a fire shot with his rifle, which landed at the right buttock of Muhammad Irfan deceased, which was found as an exit wound. Thus, it is crystal clear that the medical evidence is in conflict with the ocular account and keeping in view the pronouncements of the Superior Courts of the country on the subject, benefit of this conflict will go in favor of the appellants. Reliance is placed upon the decision of Najaf Ali Shah wherein it was ruled by the Supreme Court of Pakistan as infra:-

"9 ...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."

Further reliance can be placed on Abdul Jabbar and another v. The State 2019 SCMR 129.

1. Another piece of evidence led by the prosecution against the appellants is the recovery of rifle .44-bore (P-8) on the pointing out of Amanat Ali appellant, rifle .44-bore (P-9) on the pointing out of Younas appellant while Kalashnikov (P-10) on the pointing out of Akbar appellant. Those were sent to the office of Forensic Science Laboratory, however, they didn't match with then crime empties collected from the place of occurrence. Therefore, the recoveries lend no corroboration to the prosecution case, which is founded, on the evidence of related and chance witnesses while medical evidence is also in conflict with ocular account on the basis of which co-accused namely Muhammad Younas had already been acquitted and such acquittal was not challenged by the prosecution.

2. As far as the motive is concerned according to the prosecution version it was alleged that there was previous enmity between both sides. While appearing in the dock on oath, all the prosecution witnesses admitted that the complainant and his deceased brother Muhammad Irfan as well as other relatives were involved in number of criminal cases and in FIR No.99/2013, under Section 302, P.P.C., registered at Police Station Kot Radha Kishan, District Kasur, Muhammad Yahya and Ibrahim co-accused were cited as eye-witnesses against them. Even the complainant and Muhammad Irfan deceased were convicted by Additional Sessions Judge, Kasur in one case. It is cardinal principle of law that motive is always considered as a double edged weapon. At the one hand, if it gives a season or motivation to the accused to commit the crime, on the other hand, it equally provides impetus to the complainant to falsely implicate the accused in the case to satisfy the lust of rivalry. Guidance is sought from the decision of Supreme Court of Pakistan in Muhammad Ashraf alias Acchu. Moreover, it is an established proposition of law that motive is not substantive piece of evidence rather same is merely a circumstance, which might lead the accused to commit the occurrence. Reliance in this regard can be placed on Akbar Ali.

"6. It is also a settled law that the existence of motive/enmity is neither a substantive nor a direct evidence. It is not corroborative piece of evidence either. The motive/ enmity is only a circumstance which may lead to the commission of an offence. It is a starting point for committing a crime but under no circumstances it can he taken as an evidence. Further, motive/enmity is a doubable-edged weapon. Offence may be perpetrated because of the existence of the motive/enmity and it can also be a basis of a false charge,..:'

1. All the above narrated facts and circumstances when evaluated on the yardstick of judicial prescriptions laid down in various judgments, reflect that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. It is established principle of law that for extending the benefit of doubt, it is not necessary that there should be several circumstances, rather one reasonable doubt is sufficient to acquit an accused, not as a matter of grace but as of right. Respectful reliance can be placed on catena of judgments of apex Courts.8 The Supreme Court of Pakistan in Najaf Ali Shah v. The State 2021 SCMR 736 observed as infra:-

"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 go to the petitioner."

2025 Y L R 129

[Lahore]

Before Ch. Muhammad Iqbal and Muhammad Raza Qureshi, JJ

National Highway Authority and others---Appellants

Versus

Syed Altaf Hussain Shah (deceased) through L.Rs. and 8 others---Respondents

Regular First Appeal No. 1019 of 2013, heard on 16th May, 2024.

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

----Ss. 4, 18 & 23---Compensation , determination of---Market value of land ---Potential value of land ---Compensation under S.23(1) of the Land Acquisition Act, 1894 ('the Act 1894'), is to be determined on the basis of market valve of the land at the date of publication of notification under S.4 of the Act, 1894---Court assessing compensation is required to take into consideration not only the present purpose or the present use to which the land is applied but also any other more beneficial purpose to which it may reasonably be put by the owner--- Indubitably, it is true that regard can be had only to the existing conditions and what is likely to happen in reasonably near future and compensation cannot be fixed on the basis of what may happen in the dim and distant future ---Whereas, regarding point of potentiality , an entry in the revenue record as to the nature of the land may not be conclusive and if the land acquired is found to be useful for both agricultural and non-agricultural purposes, merely on the ground that it was used as agricultural land by the owner till time of its acquisition, its potentiality as non- agricultural land cannot be ignored.

Malik Tariq Mahmood and others v. Province of Punjab and others Civil Appeal No. 914-L of 2013 ref.

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

----Ss.4, 18 & 23 ---Quantum of compensation , enhancement of---Proof ---Trustworthy evidence, deficiency of---Effect---Acquiring Agency filed appeal against enhancement of compensation---In the case, the examination of evidence demonstrates that the respondents (land-owners) neither produced evidence of such a quality expected by law nor quantity that might have justified their claim for enhancement of compensation---Respondents were bound to produce tangible, trustworthy and credible evidence in support of their claim---Respondents' failure to place on record material evidence directly linked with the nature of claim and an expected mode to discharge the onus was deficient and in such a case the Court below could not have enhanced the amount of compensation to satisfy wishful thinking of the claimant---With such quality and quantity of evidence, the Referee Court had no sufficient evidentiary material on record to enhance the amount of compensation assessed by the Award as the respondents being landowners failed to prove their wishful claim through creditworthy, concrete and unimpeachable oral as well as documentary evidence---High Court reversed findings of Referee Court on relevant issues (Nos. 6 and 7 ) holding the same as against the law as well as record while deciding against the respondents and in favour of the Acquiring Agency (NHA) --- Appeal ,filed by acquiring agency, was allowed accordingly.

Jind Wadda and others v. General Manager NHA (LM and IS), Islamabad and others 2023 SCMR 1005 and Land Acquisition Collector Sargodha and another v. Muhammad Sultan and another PLD 2014 SC 696 ref.

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

----Ss. 4, 18 & 23---Quantum of compensation, enhancement of---Proof---Trustworthy documentary evidence deficiency of---Effect---Merely presenting the documents in evidence is inconsequential and is of no evidentiary value unless same are produced and proved in accordance with law---With the quality and quantity of evidence presented in the present case, the Referee Court had no sufficient evidentiary material on record to enhance the amount of compensation assessed by the Award as the respondents being landowners failed to prove their wishful claim through creditworthy, concrete and unimpeachable oral as well as documentary evidence----High Court reversed findings of Referee Court on relevant issues (Nos. 6 and 7) holding the same as against the law as well as record while deciding against the respondents and in favour of the Acquiring Agency (NHA)---Appeal filed by acquiring agency, was allowed accordingly.

Hyderabad Development Authority through MD., Civic Centre, Hyderabad v. Abdul Majeed and others PLD 2002 SC 84 ref

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

----Ss. 4, 18 & 23 ---Quantum of compensation, enhancement of---Burden of proof---Trustworthy documentary evidence, deficiency of---Effect---In a dispute relating to enhancement of quantum of compensation the landowners have to produce independent trustworthy and credible evidence to substantiate their claim and burden of proof in such cases is incumbent upon the landowners---With the quality and quantity of evidence presented in present case, the Referee Court had no sufficient evidentiary material on record to enhance the amount of compensation assessed by the Award as the respondents being landowners failed to prove their wishful claim through creditworthy, concrete and unimpeachable oral as well as documentary evidence---High Court reversed findings of Referee Court on relevant issues (Nos. 6 and 7 ) holding the same as against the law as well as record while deciding against the respondents and in favour of the Acquiring Agency (NHA) --- Appeal ,filed by acquiring agency, was allowed accordingly.

Jind Wadda and others v. General Manager NHA (LM and IS), Islamabad and others 2023 SCMR 1005. ref.

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

----Ss. 4, 18 & 23 ---Compensation, enhancement of---Scope---Trustworthy documentary evidence, deficiency of---Effect---Transactions though were adduced in evidence but the respondents/landowners were duty bound to produce witnesses to prove those sale deeds substantiating and proving the transactions either by presenting vendor or vendee or witnesses passing consideration to prove that sale transactions presented before the Court were genuine and duly executed inter se willing vendor and vendee---Mere presentation of documentary evidence and getting it exhibited cannot substantiate that the landowners had discharged the burden of proving the market as well as potential value of the land------With the quality and quantity of evidence, presented in the present case the Referee Court had no sufficient evidentiary material on record to enhance the amount of compensation assessed by the Award as the respondents being landowners failed to prove their wishful claim through creditworthy, concrete and unimpeachable oral as well as documentary evidence---High Court reversed findings of Referee Court on relevant issues (Nos. 6 and 7 ) holding the same as against the law as well as record while deciding against the respondents and in favour of the Acquiring Agency (NHA)---Appeal, filed by acquiring agency, was allowed accordingly.

Muhammad Yaqoob through Legal Heirs v. Land Acquisition Collector (Muhammad-4) National Highway Authority and 4 others PLD 2021 Lah. 364 ref.

(f) Punjab Land Acquisition Rules, 1983 ---

----R. 10(1)(iii)(c) ---Land Acquisition Act (I of 1894), Ss. 4, 18 & 23---Compensation , enhancement of---Scope---Trustworthy documentary evidence, deficiency of---Effect---Acquiring Agency filed appeal against judgment passed by the Referee Court whereby compensation to land-owners/ respondents was enhanced --- Validity ---Admittedly, the subject matter Notification under S.4 of the Act, 1894 was issued on 19.09.1993---In cases of land acquisition , it is the landowner who has to disprove the determination by the Land Acquisition Collector by producing convincing and legally admissible evidence---As per R.10(1)(iii)(c) of the Punjab Land Acquisition Rules, 1983, the relevant period for determination of market value would be the one prevalent during one year preceding the Notification under S.4 of the Act, 1894---In the present case, adducing Valuation Table to demonstrate that D.C. rate of the property was much higher was otherwise inconsequential as the said Valuation Table was of year 1995 i.e. one year prior to announcement of Award, which was irrelevant under the provisions of law to evaluate or assess the amount of compensation ---With the quality and quantity of evidence presented in the present case, the Referee Court had no sufficient evidentiary material on record to enhance the amount of compensation assessed by the Award as the respondents being landowners failed to prove their wishful claim through creditworthy, concrete and unimpeachable oral as well as documentary evidence---High Court reserved findings of Referee Court on relevant issues (Nos. 6 and 7 ) holding the same as against the law as well as record while deciding against the respondents and in favour of the Acquiring Agency (NHA)---Appeal ,filed by acquiring agency, was allowed accordingly.

Lahore Ring Road Authority and others v. Mian Mumtaz and others 2021 CLC 178 ref.

Barrister Haris Azmat for Appellants.

Syed Iftikhar Hussain Shah for Respondent Nos. 1(a) to 1(g).

Syed Muhammad Shah for Respondents Nos. 2 and 8.

Date of hearing: 16th May, 2024.

Judgment

Muhammad Raza Qureshi, J.---The instant as well as connected Regular First Appeal bearing No.761 of 2013 under Section 54 of the Land Acquisition Act, 1894 (the "Act") are directed against the same judgment and decree dated 16.03.2013 passed by Ch. Farrukh Hussain, learned Senior Civil Judge, Lahore, being a referee Court under section 18 of the Act. Since both the parties through respective appeals quest for their respective success question the validity, propriety and legality of the impugned judgment and decree, therefore, the rights and interests of respective parties are determined through this single judgment.

1. The appellants National Highway Authority ("NHA") have questioned the impugned judgment and decree in order to nullify the impact of determination by the Court of first instance, pursuant whereto while partially allowing the Reference Application filed by the respondents, the amount of compensation was enhanced to Rs.20,000/- per marla along with 15% compulsory acquisition charges and 8% compound interest upon enhanced compensation from the date of taking possession till its realization. Conversely, the respondents herein through their connected appeal seek further enhancement of compensation by modification of impugned judgment and decree.

2. The stances, grounds and justifications for laying a challenge to the impugned judgment and decree are duly canvassed in their respective appeals and both the learned counsel for the parties have argued at length to substantiate that the impugned judgment and decree misread the evidence on record. The NHA claims that on account of misreading of evidence the impugned judgment and decree is liable to be upended as despite weaknesses contained in the claim of respondents and shaky and inadmissible evidence presented by them, the learned referee Court illegally and unlawfully enhanced the quantum of compensation than the one determined by the subject matter Award. The respondents have targeted an effort to dislodge the determination through impugned judgment and decree on the ground that the learned Court below had illegally appreciated the evidence and, therefore, the amount of compensation is liable to be further enhanced.

3. The fate of both the connected appeals will obviously be dependent on analysis of material available on record and scrutiny of quantitative and qualitative impact of depositions as well as documentary evidence would lead to evaluate the findings contained in the impugned judgment and decree in contrast to the respective claims of the parties. The merits culminating into impugned judgment and decree emanate from proceedings of acquisition of land admeasuring 247-Kanals 6.5 Marlas from different Khasra numbers falling in revenue estate of Mauza Babu Sabu, Tehsil and District Lahore initiated by NHA for completion of project, namely, Construction of Lahore Bypass. Out of the total acquired land, the quantum of respondents' land was 08-Kanals 07-Marlas falling in Khasra Nos.3112/2496/1, 3123/261/2, 2502/1, 3134/2512/2, 2513/1 and 2137/2523/02. The Notification under section 4 of the Act was issued on 19.09.1993. The Award was announced on 26.02.1996 pursuant whereto the compensation of total land admeasuring 08- Kanals 07-Marlas owned by the respondents was declared in a manner that the compensation of 06-Kanals 12-Marlas land was evaluated to a sum of Rs.5,000/- per Marla as the land was falling in category 'C', whereas the compensation for 01-Kanal 15-Marlas land falling in category 'B' was assessed in the sum of Rs.10,000/- per Marla.

4. The respondents filed their Reference Application under section 18 of the Act and claimed enhancement of awarded compensation in the sum of Rs.55,000/- per Marla along with compulsory acquisition charges and compound interest. The learned court of first instance framed as many as eight issues, out of which issues No.1 to 5 were decided against the NHA, whereas issues Nos.6 and 7 i.e. whether the land acquired is correctly valued for determination of compensation? and if issue No.6 is not proved, what was the market value of the land at the time of acquisition, were partially decided in favour of the respondents whereby without giving findings based on categories of the land in which subject matter property of the respondents fell passed the impugned judgment and decree by awarding enhanced compensation to the respondents.

5. Before we enter into evaluation of evidence led by the respective parties, two facts are admitted. Firstly, the nature of land of the respondents acquired by NHA was nul chahi selab' and secondly, compensation in subject matter Award was received under protest in the sum of Rs.573,158.60. It was imperative to discuss the nature of land as it has been argued before us that market value of land in question shall be akin to the commercial land.

6. The question of determination of compensation in lines with market as well as potential value is fully elaborated in a recent commemorated judgment passed by the Hon'ble Supreme Court of Pakistan in Civil Appeal No.914-L of 2013 titled Malik Tariq Mahmood and othersv. Province of Punjab and others wherein the Hon'ble Supreme Court in the light of earlier judgments declared that the compensation under Section 23(1) of the Act is to be determined on the basis of market value of the land at the date of publication of notification under Section 4 of the Act. The Court assessing compensation is required to take into consideration not only the present purpose or the present use to which the land is applied but also any other more beneficial purpose to which it might reasonably be put by the owner. Indubitably, it is true that regard can be had only to the existing conditions and what is likely to happen in reasonably near future and compensation cannot be fixed on the basis of what might happen in the dim and distant future. Whereas on the point of potentiality in the said report the Supreme Court held that an entry in the revenue record as to the nature of the land may not be conclusive and if the land acquired is found to be useful for both agricultural and non-agricultural purposes, merely on the ground that it was used as agricultural land by the owner till time of its acquisition, its potentiality as non-agricultural land cannot be ignored.

7. Therefore, it is equally imperative that the assessment of marketable potentiality of the price of acquired land is primarily dependent on the qualitative and quantitative evidentiary material produced by a person seeking enhancement of the compensation. It is the creditworthiness of the quantum and quality of oral as well as documentary evidence, which may assist the Court to impeach the judgments and decrees passed by the lower fora while recommending enhancement of compensation. In order to evaluate the findings contained in the impugned judgments and decrees and to identify whether the Court lawfully determined the market value as well as potential increase in the compensation, we have carefully examined the lower Court's record which reflects that in support of reference applications the sole witness appeared on behalf of the respondents was Syed Ali Hamza AW-1 who in his examination-in-chief deposed/ that at the time of acquisition, the land in the vicinity was worth Rs.55,000/- per Marla. The applicable rate according to Deputy Commissioner's Valuation Table was Rs.20,000/- to Rs.30,000/- per Marla. The witness presented in evidence copy of sale deeds as Exh.AW1/1 to Exh.AW1/6. The application raising objection was presented as Exh.AW1/7, whereas Valuation Table according to D.C. rate was adduced as Exh-AW1/8 and Aks Shajra was presented as Exh-AW1/9. In his cross-examination, the witness admitted that the acquired property was ancestral land and all documents presented were never produced at the time of objections against the Award. The witness also deposed that the sale deeds as well as Valuation Table are prior to year 1995 and the acquired land of the respondents was commercial. However, it is noted from the cross-examination that witness admitted that no commercialization notification was adduced in evidence. In cross-examination, the witness also conceded that in past the land was used for agricultural purposes and he did not remember whether the land was water-logged or not? On behalf of respondents, Muhammad Azhar Tariq the Land Acquisition Collector appeared as DW1 and adduced documentary evidence as Exh-Dl to Exh.D-6.

8. The examination of deposition as well as documentary evidence demonstrates that the respondents in the instant appeal and NHA in connected appeal neither produced evidence of such a quality expected by law to be cogent and creditworthy nor quantity of witnesses or documentary evidence proving their claim produced before the court of first instance. For example, claim of commercialization of property before us as well as before the learned lower Court throughout remained dented as the witness AW-1 himself conceded that he did not produce in evidence any notification or documentary proof with respect to commercialized nature of the property. The Valuation Table dated 02.07.1995 (Exh-AW1/8) simply refers to the rates of commercial and residential properties in Mauza Babu Sabu. Admittedly, the subject matter property was neither residential nor commercial, therefore, it could have never been claimed that the D.C. rate of acquired property was at much higher in quantum than the one proposed by the Award. Admittedly, the Revenue record reflecting the status of land as agricultural and `nul chahi selab' was never challenged or questioned by the respondents and witness appearing on their behalf conceded that ancestral land was used for agricultural purposes, therefore, the Valuation Table cannot come to the rescue of the respondents.

9. So far as the sale deeds adduced in evidence are concerned, all those sale deeds clearly reflect that they pertain to residential or commercial properties. They even otherwise cannot come to rescue the respondents as merely by exhibiting these documents, though the existence stands established but contents are to be proved through independent cogent evidence which is absent in the instant case.

10. The examination of evidence demonstrates that the respondents neither produced evidence of such a quality expected by law nor quantity that might have justified their claim for enhancement of compensation. They were bound to produce tangible, trustworthy and credible evidence in support of their claim. Their failure to place on record material evidence directly linked with the nature of claim and an expected mode to discharge the onus was deficient and in such a case the Court below could not have enhanced the amount of compensation to satisfy a wishful thinking of a claimant. Reliance in this regard is placed upon judgments reported as Jind Wadda and others v. General Manager NHA (LM and IS), Islamabad and others (2023 SCMR 1005) and Land Acquisition Collector Sargodha and another v. Muhammad Sultan and another (PLC 2014 SC 696).

11. It is also pivotal to express our opinion that merely by presenting the documents in evidence is inconsequential and is of no evidentiary value unless these documents are produced and proved in accordance with law. Therefore, these documents only have seeming value in law. Reliance in this respect is placed upon judgment reported as Hyderabad Development Authority through MD., Civic Centre, Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84). In disputes relating to enhancement of quantum of compensation the landowners have to produce independent trustworthy and credible evidence to substantiate their claim and burden of proof in such cases is incumbent upon the landowners. Reliance in this respect is placed upon the judgment reported as Jind Wadda and others v. General Manager NHA (LM and IS), Islamabad and others (2023'SCMR 1005).

2025 Y L R 152

[Lahore]

Before Shakil Ahmad, J

Bilal Sikandar---Petitioner

Versus

The State and another---Respondents

Crl. Misc. No. 47663-B of 2024, decided on 21st August, 2024.

Criminal Procedure Code (V of 1898)---

----S.497---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Bail, refusal of---Case of further inquiry---Expression "reasonable grounds"---Scope---Tentative assessment of evidence---Accused murdered his real sister on the plea of ghairat (honour)---Case of further inquiry presupposes tentative assessment of material brought on record starting from time of lodging of FIR and material collected during the course of investigation till the conclusion of investigation, which in turn creates some doubt with respect to involvement of accused in commission of crime---Expression "reasonable grounds" refers to ground that may be legally tenable is, admissible in evidence and appeals to a reasonable judicial mind, as opposed to whimsical, arbitrary, or presumptive---High Court upon tentative assessment of material available with prosecution was convinced that reasonable grounds existed for believing that accused had committed a non-bailable offence falling within the ambit of prohibitory clause as contained in S.497, Cr.P.C.---Overwhelming evidence was available on record to connect accused with the commission of alleged crime---Bail was declined, in circumstances.

Muhammad Akram Khan v. The State PLD 2001 SC 96; Umer Din v. The State and others 2017 YLR Note 378; Khadim Hussain and another v. The State PLD 2012 Bal. 179; Muhammad Qasim v. The State PLD 2018 SC 840 and Mumtaz v. The State 2012 SCMR 556 ref.

Ata-ullah v. The State 2014 SCMR 1210 and Mst. Parveen Akhtar v. The State and others 2002 SCMR 1886 rel.

Mushtaq Ahmad Mohal for the Petitioner.

Miss Rashida Parveen, Assistant District Public Prosecutor with Junaid, SI for the State.

Order

Shakil Ahmad, J.---After dismissal of his post-arrest bail petition by learned Additional Sessions Judge, Sargodha, vide order dated 07.03.2024, Bilal Sikandar, accused/petitioner has filed instant petition under section 497 of the Code of Criminal Procedure, 1898 (Cr.P.C.) seeking post-arrest bail in case FIR No.99 of 2024 dated 02.02.2024 registered at Police Station Bhagtanwala District Sargodha for the offences under sections 302, 311 of the Pakistan Penal Code, 1860 (P.P.C.).

1. Allegation, in a nutshell, against the accused/petitioner is that he, by exhorting that Ramsha (his sister) has brought dishonour to them and he would not leave her alive, made a straight fire shot hitting on the back of Ramsha, who succumbed to the injury at the spot.

2. Heard. Record perused.

3. Instant is a case in which Ramsha (aged about 21/22 years) lost her life in the consequence of a fire shot injury alleged to have been made on her by none other than her real brother, on account of 'ghairat'. The occurrence that took place on 02.02.2024 at 12:30 PM was claimed to have been witnessed by Muhammad Junaid Ahmed, T/SI and the constables who, during the course of patrolling, when reached near the house of deceased, rushed inside the house on hearing an uproar coming inside the house. According to them, accused/petitioner who was armed with .12-bore single barrel, made straight fire shot hitting on the person of Ramsha who fell down and succumbed to the injury at the spot. Strangely enough, none of the inmates, including the parents of the deceased, opted to become the complainant qua the incidence in which their own daughter was done to death, and even they did not give their account regarding the murder of the deceased immediately, just after the occurrence that how and under which circumstances Ramsha became injured and lost her life. Occurrence has been shown to be witnessed by the independent persons belonging to the police department who, ex facie, have no ill-will or any sort of grudge to falsely involve the accused/petitioner with the commission of murder of his own sister. Even, the accused/petitioner remained fugitive from law for the period of around 5 months and when finally rounded up, got recovered the firearm. The investigator also collected a crime empty from the spot and the same was sent to the office of PFSA. The firearm recovered from the accused/petitioner has also been dispatched to the concerned quarter for analysis. The police/investigator seemed to have collected sufficient evidence/material linking the accused/petitioner with the commission of alleged crime.

4. Issue of honour killing had been noticed by courts with grave concern and in case "Muhammad Akram Khan v. The State" (PLD 2001 SC 96), while answering stance taken by defence that accused committed offence under the impulse of 'ghairat', the Supreme Court of Pakistan observed as under: -

"Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of "Ghairat". Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatl-i-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution. In this case, the plea of "Ghairat" cannot be deemed to be a mitigating circumstance as the motive was not directly against the deceased."

In case "Umer Din v. The State and others" (2017 YLR Note 378 [Lahore]), while dealing with the case of post-arrest bail of an accused relating to honour killing, this Court observed as under: -

"8. It is important to observe that in our society granting post-arrest bails in 'honor killing' i.e. a violence against women will substantially increase such incidents, which in most of the cases is for gain of the property, demanding the hand of a woman of choice, settling the old scores and personal vendetta. Certainly, if such like act as committed by the petitioner is approved, it would lead to an anarchic situation in the society and lynching of women would become order of the day. "

In case "Khadim Hussain and another v. The State" (PLD 2012 Baluchistan 179), while dealing with the same moot point it was observed as under: -

"I have noticed in a number of cases that the killing of innocent wife, sister and other female relatives, on the allegation of 'siyahkari' has become a routine practice, rather a fashion, and it is a high time to discourage such kind of unwarranted and shocking practice, resulting in double murder in the name of so-called honour killing. I am not impressed by the contention of learned counsel for the applicants that according to the prosecution's own showing, the occurrence is the result of 'siyahkari', as such the applicants were liable to be enlarged on bail. It is true that people do not swallow such kind of insult, touching the honour of their womenfolk and usually commit murder of alleged 'siyahkar' in order to vindicate and rehabilitate the family honour, but it is equally true that no one can be granted licence to take law of the land in his own hands and start executing the culprits himself instead of taking them to the Courts of law. The murder based on `Ghairat' does not furnish a valid ground for bail. Killing of innocent people, especially women on the pretext of 'siyahkari', is absolutely un-Islamic, illegal and unconstitutional. It is worth mentioning that the believers of Islam are not even allowed to divorce them, without establishing their accusation. We profess our love for Islam, but ignore clear Qur'anic Injunctions regarding the rights of women. The Holy Qur'an in Sura XXIV in Sura (NUUR) Verses 4 says:

"And those who launch a charge against chaste women and produce not four witnesses, (To support their allegation),---Flog them with eight stripes; and reject their evidence even after: for such men are wicked transgressors;---"

In this regard, it would also be advantageous to reproduce Hadith 837 Book 48 (Sahih Bukhari), which speaks as under:--

"Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of committing illegal sexual intercourse with Sharik bin Sahma. The Prophet said, "Produce a proof or else you would get the legal punishment (by being lashed) on your back" Hilal Said, "O Allah's Apostle! If any one of us saw another man over his wife, would he go to search for a proof" The Prophet went on saying, "Produce a proof or else you would get the legal punishment (by being lashed) on your back " The Prophet then mentioned the narration of Lian (as in the Holy Book). (Surat-al-Nur.. 24),"

Being conscious of the fact that it had become an ignominious practice in the society, particularly after promulgation of Qisas and Diyat Ordinance, 2000, that after doing away with females, either she may be a wife, mother, daughter, or sister on the pretext of honour, real perpetrators were usually being let off after getting pardon from wali/walis, the legislature introduced certain amendments through the Criminal Law (Amendment) Act, 2004 (Act I of 2005), whereby the definition of an offence committed in the name or on the pretext of the honour was introduced. Similarly, clause (c) to section 302 of P.P.C. was also amended and substituted through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016 as under: -

3. Amendment of section 302, Act XLV of 1860.-In the Penal Code, in section 302, in clause (c), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely:

"Provided that nothing in this clause apply to the offence of Qatl-i-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be. "

In view of the above hinted amendment, an offence committed in the name or on the pretext of honour was excluded from the definition of 'qatl-i-amd' as contained in Section 302 Clause (c) of P.P.C., as the phrase "in the name or on the pretext of honour" inserted in the first proviso to Section 302(c) of P.P.C. clearly indicates that the murder committed in the name or on the pretext of honour had to be calculated as a murder committed with premeditation in the background of honour. Reliance in this regard may safely be placed on the case reported as "Muhammad Qasim v. The State" (PLD 2018 SC 840). Similarly, certain amendments were also made in Section 345 of Cr.P.C., introducing sub-section 2-A, and the same reads as under:-

"(2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compound subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the case. "

Similarly, as per provisions of subsection (7) to Section 345 of Cr.P.C, no offence shall be waived or compounded save as provided by this Section and section 311 of P.P.C.. Another significant amendment has been introduced by amending section 299 of P.P.C. and introducing clause (ee) through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, whereby an offence that has been committed in the name or on the pretext of honour has been categorized as an offence falling within the meaning of 'fasad-fil-arz'. As per provisions of section 311 of P.P.C., if the principle of fasad -fil-arz is attracted, the court may having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment of life or imprisonment of either description for a term of which may extend to fourteen years as ta'zir. The sole proviso to this section further provides that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life.

2025 Y L R 164

[Lahore]

Before Shahid Bilal Hassan, J

Mahmooda Bibi---Petitioner

Versus

Muhammad Khurshid Alem and others---Respondents

Civil Revision No. 1426 of 2015, heard on 13th October, 2022.

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

---Ss. 39, 42 & 54---Suit for declaration with consequential relief---Gift mutation, execution of---Proof---Plaintiff filed a declaratory suit seeking therein consequential relief of cancellation of gift mutation, executed in favour of respondents Nos.1 to 3 by the father of the parties on the ground that said transaction was based on fraud, and therefore, revenue record to that extent was liable for correction---Suit was dismissed by the Trial Court, while appeal was dismissed by the Appellate Court---Validity---When sanctity of a gift deed or mutation is challenged or called into question, the beneficiary has to not only prove the valid execution of gift deed or mutation but also the original proceedings of gift---Respondents failed to provide sufficient details in their written statement and plaint regarding the gift transaction and they did not specify the time, date, place, or witnesses present when the gift was offered and accepted---Mutation did not explain why the donor excluded her daughters and gifted the property to her sons only, which showed that the respondents had failed to discharge the heavy burden of proving the valid gift in their favour---Donor was an old lady i.e. 75/80 years of age and was living with the respondents, so the execution of gift mutation under duress and fear as well as compulsion could not be ruled out and the donor was not allowed to consult her daughters before the transaction---Gift mutation was not read over to donor to make her understand the consequences of the same, especially when she was living at the mercy of the respondents---Patwari, who recorded the mutation, admitted to not knowing the donor personally and not recording her CNIC number---Prosecution witnesses did not provide any reason for the gift, while the respondents claimed it was in exchange for services and out of affection---No evidence was available on the record that some independent advice was given to the donor, which was necessary keeping in view her old age, especially when through the gift mutation the real daughters were going to be excluded from getting their shares---Civil revision was allowed, in circumstances.

Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Muhammad Boota through L.Rs v. Mst. Bano Begum and others 2005 SCMR 1885; Mian Ghayassuddin and others v. Mst. Hidayatun Nisa and others 2011 SCMR 803; Rab Nawaz and others v. Ghulam Rasul 2014 SCMR 1181 and Peer Baksh through LRs and others v. Mst. Khanzadi and others 2016 SCMR 1417 rel.

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

---S.115---Concurrent findings of fact by courts below---Interference in such findings by revisional court under S.115, C.P.C---Scope---When courts below fail to adjudicate upon the matter by appreciating law on the subject by misreading evidence of the parties, High Court is vested with authority to undo such concurrent findings.

Sultan Muhammad and another v. Muhammad Qasim and others 2010 SCMR 1630 and Farhan Aslam and others v. Mst. Nuzba Shaheen and another 2021 SCMR 179 rel.

Hafiz Muhammad Yusuf for Petitioner.

Nemo for Respondents.

Date of hearing: 13th October, 2022.

Judgment

Shahid Bilal Hassan, J.---Initially, a suit for declaration with consequential relief was instituted by the present petitioner along with her sisters namely Shamim Akhtar and Razia Bibi against their three brothers i.e. respondents Nos.1 to 3 challenging the vires and validity of disputed gift mutation No.1315 dated 31.10.2002 allegedly sanctioned in favour of respondents Nos.1 to 3. However, later on, Mst. Razia Bibi withdrew suit to her extent on 29.10.2011, who was transposed as defendant No.4 in the suit. Subsequently, Mst. Shamim Akhtar, after making her statement on oath in the Court and supporting stance of the present petitioner, also withdrew suit to her extent on 24.02.2014 but she was not transposed as defendant and continued as plaintiff. The respondents Nos.1 to 3 contested the suit by filing written statement, who controverted the averments of plaint and prayed for dismissal of the suit. The defendant No.4/respondent No.4 Mst. Razia Bibi filed separate written statement in support of version of the respondents Nos.1 to 3. The divergence in pleadings of the parties was summed up into nine issues including "Relief" on 25.11.2013. Both the parties adduced their oral as well as documentary evidence. The learned trial Court vide impugned judgment and decree dated 31.03.2014 dismissed the suit. The petitioner being aggrieved of the said judgment and decree preferred an appeal but the same was also dismissed vide impugned judgment and decree dated 20.04.2015 by the learned appellate Court; hence, the instant revision petition.

1. Heard.

2. Ingredients for a valid gift are: offer, acceptance and delivery of possession. When sanctity of a gift deed or mutation is challenged or called into question, the beneficiary has not only to prove the valid execution of gift deed or mutation but also the original proceedings of gift. Reliance is placed on judgment reported as Peer Baksh through LRs and others v. Mst. Khanzadi and others (2016 SCMR 1417). However, in the present case, perusal of the plaint shows that the respondents have failed to plead the time, date, place and names of witnesses in whose presence their mother Mst. Sardaran Bibi made offer of making gift in their favour, which was accepted by them, whereafter possession was delivered to them after execution of mutation in dispute (Ex.P1). Even the plaint does not disclose the names of witnesses in whose presence such transaction took place. Moreover, the said pivotal document (Ex.P1) does not disclose as why the donor had excluded his other legal heirs i.e. the daughters and for what reason he had gifted out the disputed property to his sons i.e. respondents Nos.1 to 3. All this shows that the respondents Nos.1 to 3 have failed to discharge the heavy burden of proving the valid gift in their favour. In a judgment reported as Faqir Ali and others v. Sakina Bibi and others (PLD 2022 Supreme Court 85), the Apex Court of the country has held:-

"8. Although stricto sensu, it is not necessary for a donor to furnish reasons for making a gift yet no gift in the ordinary course of human conduct can be made without reason or justification be it natural love and affection for one or more of his children who may have taken care of the donee in his old age and thus furnished a valid basis and justification for the donor to reward such effort on the part of the donee by way of making a gift in his/her favour. In the case of Barkat Ali v. Muhammad Ismail (2002 SCMR 1938) this Court has already taken notice of the fact that in the wake of frivolous gifts generally made to deprive female members of the family from benefit of inheritance available to them under Sharia as well as the law, the Courts are not divested of the powers to scrutinize the reasons and justification for a gift so that no injustice is done to a legal heir who otherwise stands to inherit from the estate of a deceased predecessor or relative and that the course of inheritance is not bypassed or artificially blocked. In the present case, no reason is available on the basis of which the alleged gift appears to have been made. The only reason furnished by Faqir Ali, DW.8 and Munir Ali, DW.10 in their statements before the trial court was that their father Muhammad Ali had transferred the suit land to gain divine favour of God by pleasing Him and the exact words used were "Allah Waasty". It is therefore, clear and obvious to us that natural love and affection was not the consideration of the gift and instead as alleged by the aforenoted two witnesses the intention behind the transaction was to please God, the Almighty. Even if that claim is accepted as true, it is ex facie hard to understand how depriving his real daughters of their rightful share in the inheritance/estate of the donor could be interpreted as an act which would please God, the Almighty Who had specifically ordained that the daughters are entitled to a specified share by way of inheritance in the estate of their father on his demise. It therefore appears that the gifts were only a device to deprive the daughters from inheritance and the gift mutations were sanctioned to bypass the law of inheritance and to disinherit the daughters. In this background, the High Court in our opinion was correct in coming to the conclusion that the gift was based on a fraudulent intent. It is settled law that fraud vitiates even the most solemn transactions and any transaction that is based upon fraud is void and notwithstanding the bar of limitation. Courts would not act as helpless by stands and allow a fraud to perpetuate."

In the said judgment, it has further been held:-

"10. We also find that a transaction which is based on an oral gift has two parts, namely the fact of the oral gift which has to be independently established by proving through cogent and reliable evidence the three necessary ingredients of a valid gift as noted above. However, that is not enough. The second ingredient i.e. mutation on the basis of an oral gift has to be independently established by adopting the procedure provided in the Land Revenue Act and the rules framed thereunder as well as the evidentiary aspects of the same in terms of the Qanun-e-Shahadat Order, 1984."

1. In the present case, admittedly the donor namely Mst. Sardar Bibi was an old aged person i.e. 75/80 years of age and was living with the respondents Nos.1 to 3, so the execution of gift mutation under duress and fear as well as compulsion cannot be ruled out and it cannot be said to have been executed with free consent especially when before executing any such transaction in favour of the respondents Nos.1 to 3, her sons, she was not allowed to take her daughters in confidence or consult them. No evidence has been brought on record depicting that the alleged gift mutation was read over to Mst. Sardar Bibi, the donor and made her understand the consequences of the same, especially when she was living at the mercy of the respondents Nos.1 to 3. D.W.3 namely Sabir Hussain, Patwari Halqa, who entered the disputed mutation, during cross-examination deposed that he did not know Mst. Sardaran Bibi personally and he did not enter her CNIC number in his register; that Mst. Sardaran Bibi was identified by five persons came with her. None of the P.Ws. including P.W.7 Ghulam Sarwar, one of the plaintiffs/respondents deposed that why the disputed property was gifted to the respondents Nos.1 to 3 by Mst. Sardaran Bibi, whereas in plaint, the plaintiffs/respondents Nos.1 to 3 pleaded that the same was gifted in lieu of services and out of affection. In judgment reported as Muhammad Boota through L.Rs v. Mst. Bano Begum and others (2005 SCMR 1885), it has been held:-

"--------------The petitioner in fact wants to deprive his real sister from the legacy of their parents on the basis of alleged gift deed executed in his favour by Mst. Saira Bibi, their real mother, who by no stretch of imagination could deprive her real daughter from the share due without any justifiable reasons which are badly lacking in this case which otherwise does not appeal to logic and reason. The gift deed was admittedly executed by an ailing and 80/85 years old woman who had suffer an attack of paralysis and lost her memory, (attention is invited to the statement of Mst. Anwar Bibi) and therefore, it should have been substantiated by worthy of credence evidence which could not be done. The petitioner could not show as to when the offer made by the donor and when it was accepted."

1. Nothing has been brought on record to show that at the time of alleged execution of gift mutation Ex.P1, some independent advice was available to the donor Mst. Sardaran Bibi, which was necessary keeping in view her old age, especially when through the said document the real daughters were going to be excluded to get their shares. In judgment reported as Mian Ghayassuddin and others v. Mst. Hidayatun Nisa and others (2011 SCMR 803), the Apex Court of the country held:-

"The onus was heavily placed on the shoulders of petitioners to have proved that the transaction of gift was effected without exercising undue influence over the donor or that she had independent advice at the relevant time and that she had effected the transaction with her free will and consent."

2025 Y L R 178

[Lahore]

Before Ch. Muhammad Iqbal and Muhammad Raza Qureshi, JJ

Chairman National Highway Authority through its Authorized Officer/Director---Appellant

Versus

Muhammad Sharif and others---Respondents

R.F.A. No. 83758 of 2023, heard on 13th May, 2024.

Land Acquisition Act (I of 1894)---

----Ss. 18, 31(2) & 54---Acquisition of land---Compensation accepted without objection---Reference to Court---Maintainability---Documents not filed by party---Proof---Respondents / landowners being dissatisfied with the compensation preferred a Reference and Referee Court enhanced the compensation---Validity---Respondents / landowners were debarred to file Reference claiming enhancement of compensation as they did not record any protest at the time of receipt of compensation---Documentary evidence was produced on behalf of respondents / landowners by their counsel in his statement whereas it was mandatory requirement of law that documents relied upon should be produced in evidence by the party in its own statement so that the adverse party could have a fair opportunity to cross-examine the same---Documents produced by respondents / landowners lacked intrinsic value and such documents were validly excluded from consideration---High Court set aside compensation fixed by Referee Court and dismissed Reference filed by respondents / landowners---Appeal was allowed in circumstances.

Lahore Ring Road Authority and others v. Mian Mumtaz and others 2021 CLC 178; Ghulam Muhammad v. Government of West Pakistan PLD 1967 SC 191; Government of N.W.F.P and others v. Akbar Shah and others 2010 SCMR 1408; Land Acquisition Collector (M-1), National Highway Authority Islamabad and 4 others v. Zahir Shah and 5 others 2016 YLR 2462; Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others PLD 2021 SC 715 and Rustam and others v. Jehangir (deceased) through LRs. 2023 SCMR 730 rel.

Ahtisham-ud-Din Khan, Muhammad Noman Sarwar and Junaid Ahmad Masood for Appellant.

Abdul Wahid Chaudhary and Ahmad Raza Ibrar for Respondents.

Date of hearing: 13th May, 2024.

Judgment

Ch. Muhammad Iqbal, J.---Through this regular first appeal under Section 54 of the Land Acquisition Act, 1894, the appellant has challenged the validity of the judgment and decree dated 22.09.2023 whereby the learned referee Court/Senior Civil Judge, Kasur accepted the reference under Section 18 of the Act ibid filed by the respondents.

1. Brief facts of the case are that the respondents filed a reference under Section 18 of the Land Acquisition Act, 1894 and contended that they were the owners of land situated in Chak No.22 Tehsil Partoki, District Kasur fully described in paragraph No.1 of the reference and the said land was acquired by the appellant/National Highway Authority for construction of Lahore-Sahiwal Section road. Award was announced on 02.03.2011 and compensation was assessed by the appellant at the rate of Rs.1900/- per Marla along with % compound interest from the date of possession till announcement of the Award. Being aggrieved of the less quanttun of compensation, the respondents filed a reference under Section 18 of the Act ibid. The appellant filed contesting written reply. Out of the divergent pleadings of the parties, the learned referee Court/Senior Civil Judge, Kasur framed issues, recorded evidence of the parties and vide judgment and decree dated 18.09.2020 accepted the reference by increasing the compensation from Rs.1,900.58 per Marla to Rs.65,000/- per Marla along with 15% compulsory acquisition charges and 08% compound interest per annum from the date of possession till payment of compensation. The appellant assailed the said judgment and decree through an appeal [R.F.A. No.586/2021] which along with other appeals was accepted with the concurrence of the parties vide order dated 24.03.2022 and the case was remanded to the referee Court for fresh decision. In post-remand proceedings, the parties produced further documentary evidence in support of their respective claims. The referee Court again accepted the reference by increasing the compensation from Rs.1,900.58 per Marla to Rs.65,000/- per Marla along with 15% compulsory acquisition charges and 08% compound interest per annum from the date of possession till payment of compensation. Hence, this appeal.

2. We have heard the arguments of learned counsel for the parties and have gone through the record.

3. Main controversy involved in this case revolves around Issue No.1 which is reproduced as under:

"Whether compensation awarded by Land Acquisition Collector was inadequate and improper against the market value of the suit land and same is liable to be enhanced as prayed for along with interest? OPA"

Muhammad Iqbal (A.W.1), one of the respondents/petitioners, deposed that they were owners of land which was acquired for construction of road; that the land is costly and commercial in nature. During cross-examination, he deposed that they did not file any written objections on award before the Land Acquisition Collector; that he received the compensation; that it is correct that the department has assessed the value of the land on the basis of the average sale price. Muhammad Ishaq (A.W.2) deposed in support of the respondents. During cross-examination, he admitted that the acquired land was agricultural in nature; that he has given statement what the petitioners had told him.

1. Conversely, appellant produced Shams-uz-Zaman, Land Acquisition Collector (R.W.1) who deposed that at the time of announcement of award in the year 2011 he was posted as Land Acquisition Collector, NHA; that land was acquired for construction of road; that notification under Section 4 of the Land Acquisition Act, 1894 was issued on 12.01.1993; that the award was announced and compensation was received by the land owners without any protest; that after fulfillment of all legal and codal formalities, land was acquired and compensation was given. During cross-examination, he deposed that the compensation was assessed at the rate of Rs. 1900.58. Mst. Yasmeen Nighat, Assistant Director NHA (R.W.2) deposed that land was acquired for extension of road; that the petitioners received compensation without any protest as such reference is not maintainable. Abdul Hameed Qanugo (R.W.3) deposed that land was acquired for expansion of Multan Road; that the petitioners received compensation without any protest.

2. The burden to prove the issue was upon the respondents/claimants to prove their case for the enhancement of compensation through concrete and unimpeachable evidence but the respondents have not produced nay visual site plan or shajra aks parcha or any other valid document in this regard to prove the exact location of the acquired property that it is situated at the main road and has commercial characteristic but no such document/evidence has been brought on the record to substantiate their pleaded stance.

3. Even otherwise, an elaborate modus regarding assessment of value of property is provided in Rule 10 (1)(iii)(c) of Land Acquisition Rules, 1983 whereby average market price of alike kind of land similarly located and its price prevalent value during the period of twelve months preceding the date of publication of Notification under Section 4 of the Land Acquisition Act, 1894 in the area sold, has to be followed. The respondents showed disagreement with the price fixed in the award, thus onus was upon them to prove the exact price and it was the mandatory duty of the respondents under Section 18 of the Act ibid to mention the details of their property regarding size, location etc. of the land with supporting documents along with the reference and to prove the claimed amount through corroborative, cogent, convincing and trustworthy evidence which are missing and respondents failed to dissipate the burden. A learned Division Bench of this Court has elaborately discussed this issue in a judgment cited as Lahore Ring Road Authority and others v. Mian Mumtaz and others (2021 CLC 178) as under:

"8. The respondents/claimants were duty bound to prove their claim through concrete and unimpeachable evidence but they have not produced sale deeds of land immediately adjacent to the acquired land situated at Moza Jia Musa, whereas the sale deeds (Exh.P.9, Exh.P.10, Exh.P.15 and Exh.P.16) produced by the respondents/claimants relates to the other distant land which are not helpful to prove the value of the acquired land. The respondents have not produced any visual site plan to substantiate their stance. Furthermore, to prove their stance that the land is situated on Main Bund Road, the respondents should have produced the shajra aks parcha or any other valid document in this regard to prove the exact location of the acquired property but no such material evidence is available on the record. Reliance is placed on the case titled Abdul Sattar v. Land Acquisition Collector Highways Department and others (2010 SCMR 1523) wherein it was held that:-

"12. In our considered opinion the petitioner has failed to substantiate that the land in question was superior as compared to the other land in the vicinity. It also could not be established that it was a commercial land and it could not be such because construction of brick-kiln installed by the petitioner was not disputed. It would have no bearing on merits of the case as to whether it was functional or otherwise but it indicates the nature of the land which by no stretch of imagination can be termed as commercial. The petitioner also failed even to point out the exact distance between the land in question and that of the road. The learned ASC was asked pointedly that as to how Aks Shajra Kishtwar could be taken into consideration which was never got exhibited hence no evidentiary value could be attached to it but no answer could be given."

Regarding the price of the land, the respondents/petitioners relied upon sale deeds (Exh.P.15) and (Exh.P.16) and stated that the rate of the compensation be fixed according to the said sale deeds but perusal of sale deed (Ex.P.15) shows that it is related to a property falling in Khata No.845 Khasra No.2179/1270 situated at Band Road, Moza Jiya Mosa, Lahore but it does not prove that property, subject matter of sale deed (Exh.P.15), is situated immediately adjacent to the acquired property of the respondents. Further the said sale deed (Exh.P.15) also shows that the said property is a factory where the commercial/industrial electricity and gas connections are installed whereas the respondents did not produce any such evidence in support of their claim to prove the nature of the property acquired by the appellants. Sale deed (Exh.P.16) also does not show that it is situated adjacent to the property of the respondents/petitioners, as such, these documents lend nil support to claim of the respondents and the same cannot be considered as a convincing ground for the enhancement of the compensation amount, as even variation of a few feet in the location of property drastically change the value of the property. So far as the evidence of the land expert PWs produced by the respondents/petitioners is concerned, it is well settled law that mere opinion of an expert without support of any documentary evidence cannot by itself be considered enough for enhancement of compensation. Reliance is placed on Habibullah Khan and 4 others v. Collector, Quetta (PLD 1984 Quetta 11) and Land Acquisition Collector, Sargodha and another v. Muhammad Sultan and another (PLD 2014 SC 696).

9. Under Section 18 of the Land Acquisition Act, 1894, it was the mandatory duty of the respondents to mention the details of their property regarding size, location etc. of the land with supporting documents but in the reference all the required information has neither been mentioned nor any documentary evidence has been furnished in this regard, whereas an elaborate procedure for assessment of price has been provided in Rule 10 (1)(iii)(c) of Land Acquisition Rules, 1983 whereby average market price of similar kind of land similarly located, on the basis of the price prevalent during the period of twelve months preceding the date of publication of Notification under Section 4 of the Land Acquisition Act, 1894 in the area sold, has to be followed. In this regard, initially the Price Assessment Committee fixed the price of the acquired land of Moza Jiya Mosa, Lahore measuring 112 Kanal 08 Marla at the rate of Rs.225,000/- per marla with 15% compulsory acquisition charges but subsequently on the request of the respondent/petitioner, a new committee was constituted who after considering all the other facts enhanced the compensation amount from Rs.225,000/- to Rs.350,000/- per Marla as per the requirement of section 23 of the Land Acquisition Act, 1894. As the respondents showed disagreement with the price fixed in the award the onus was upon him to prove the claimed amount through corroborative, cogent, convincing, trustworthy documentary evidence but the same are lacking. Reliance is placed on the judgment of the Hon'ble Supreme Court of Pakistan cited as Abdul Sattar v. Land Acquisition Collector Highway Department and others (2010 SCMR 1523) wherein it is held that the burden to prove such claim lies upon the land-owner and mere oral assertion of the land-owner without any supporting documentary evidence would not be considered. Relevant portion of the judgment (supra) is reproduced as under:

"7. It is worth mentioning that the determination of learned Referee Judge has been upheld by the learned Division Bench of High Court after having taken into consideration the oral and documentary evidence. The relevant portion of the judgment impugned is reproduced herein below for ready reference:-

"The appellant failed to bring on record any document to show that the land of the appellant is superior as compared to the other owners of the Mauza in question and the land of the appellant is situated on the road side whereas the trial court has rightly after appraisal of evidence given finding against the appellant that value of the land of the appellant was decreased on account of brick kiln installed by the- appellant which was not in working condition. In other words there has not been adduced evidence about the location of the suit land as at what distance the suit land is situated from the road except that land is situated at 87/88 Karam from road which brings the case of the appellants in the area that it is a case of insufficient evidence on record. It is settled law that burden of proving the entitlement to higher rate of compensation is on the land owner. Reference in this context may be made to Government of India and others v. Muhammad Usman and others (1984 CLC 3406). The mwer statement of owner without supportive evidence wouled be inconsequential."

(emphasis supplied)

1. So far as the assessment of market value of a property is concerned, suffice it to say that the market value is normally taken up as the one existing in the preceding year of the date of issuance of notification under Section 4(1) of the Land Acquisition Act, which date is relevant for assessment of price according to the statute and not date of pronouncement of award as claimed by the respondents. In this regard, reliance is placed on the judgments of the Hon'ble Supreme Court of Pakistan reported as Province of Punjab through Land Acquisition Collector and another v. Begum Aziza (2014 SCMR 75) and Secretary to Government of N.W.F.P. Peshawar and 15 others. v. Hafi Fateh Khan and 15 others (2001 SCMR 974). A learned Division Bench of this Court, in an unreported judgment passed in R.F.A. No.284 of 2011, while dealing with the similar proposition has observed as under:-

"It is an established principle of law that in land acquisition cases a party interested for enhancement of the compensation owe a duty to discharge the burden to disprove the determination of compensation by the Land Acquisition Collector by producing convincing and legal evidence. As per Rule 10(1)(iii)(c) of Punjab Land Acquisition Rules, 1983, the relevant period while determining the market value is the one prevalent during the one year preceding to the notification under Section 4 of the Land Acquisition Act and in his case the said notification was published on 24.08.2005. The appellant in order to discharge the burden of proving issues Nos.7 and 8 produced sale deed dated 9.07.2007 (Ex.A-3), sale deed dated 12.07.2007 (Ex.A4), Sale deed dated 27.6.2007 (Ex.A5) and sale deed, dated 20.6.2007 (Ex.A-6). All these sale deeds are not relevant as the same do not precede the notification under section 4 of the Land Acquisition Act. It is settled principle of law that the transactions which take place subsequent to the Notification under Section 4(1) of the Land Acquisition Act are not considered proper for determination of compensation and in this regard reference may be made to the case of Land Acquisition Collector v. Ch. Muhammad Ali (1979 CLC 523). Besides the afore-stated reasons for not accepting the above said sale deeds, we further add that the appellant did not take any step to prove the contents of these documentary evidence. It is to be noted that merely by tendering a document in evidence. It is to be noted that merely be tendering a document in evidence, it gets no evidentiary value unless its contents are proved according to law and for this purpose reference may be made to the case of Hyderabad Development Authority through M.D. Civil Center Hyderabad v. Abdul Majeed and others (PLD 2002 SC 84). Now the only evidence which is left for consideration is oral statement of the witnesses. We are afraid that oral evidence is not sufficient as in the land acquisition cases it is a consistent view of the Hon'ble Supreme Court of Pakistan that mere bald statements of the witnesses produced by land owner are not sufficient to accept the claim of a higher price of acquired land. In this regard reliance may be made to the case of Abdul Sattar v. Land Acquisition Collector Highway Department and others (2010 SCMR 1523). In view of above, the appellant failed to discharge the burden of proving issues Nos. 7 and 8 and, therefore, findings to this effect recorded by the learned trial court are reversed."

The respondents/petitioners were under legal obligation to prove the exact price as well as the location of the acquired land through tangible evidence but he neither proved the price nor the exact location of the land through document of Aks Shajra Kishtwar, as such, the respondents/claimants have failed to discharge the above burden, which flaw rendered the impugned enhancement of compensation as erroneous. Reliance in this regard is placed on judgment (supra) (2010 SCMR 1523). It is settled law that the party approaching the Courts for grant of relief would have to discharge the burden of proving his claim and has to stand on his own legs and any weakness in case of opposite party lend least support to his claim. Reliance is placed on the cases of Sultan Muhammad and Another v. Muhammad Qasim and others (2010 SCMR 1630) and amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1). As such, the learned Referee Court was not justified in enhancing the compensation, mere on assumptions and against the available record, as such, the same cannot remain in field. Reliance is placed on Chairman, WAPDA and others v. Sarfraz Khan and another (2007 SCMR 1054) and Section Officer, Government of Punjab, Finance Department and others v. Ghulam Shabbir (2010 SCMR 1425)."

The judgment (supra) was assailed through Civil Appeals [Nos. 157-L, 161-L, 162-L, 170-L, 171-L and 172-L of 2020] and the Supreme Court of Pakistan has dismissed all aforementioned appeals and upheld the decision of this Court vide order dated 23.11.2020.

1. Even otherwise, the respondents while receiving the compensation assessed in the Award, did not raise any objection qua the quantum of compensation as such they were debarred to file reference for enhancement of compensation. Proviso to subsection (2) of Section 31 of the Act ibid is relevant in this regard, which is reproduced as under:

"Provided also that no person who has received the amount otherwise than under protest shall be entitled to make any application under section 18"

The aforesaid provision is very much clear that only such person is entitled to file application for enhancement of compensation who has received compensation under protest whereas the respondents did not file any application to show their protest at the time of receipt of the compensation amount. On the other hand, the appellant has tendered documentary evidence (Exh.R.9 to Exh.R.11), exhibited without any objection of the respondent side, shows the receiving of the compensation amount by the respondents without any protest, thus, the Reference is liable to be dismissed on this score. Reliance in this regard is placed on a case cited as Ghulam Muhammad v. Government of West Pakistan (PLD 1967 SC 191) wherein the Hon'ble Supreme Court of Pakistan has held as under:

"... He has now filed a petition to say that no such application was made, but a copy of the receipt granted at the time that the cheque was received from the Court has been filed by Government. It does not, as already stated, show that the money was withdrawn under protest. The second proviso to section 31(2) is, therefore, fully applicable and would appear to constitute a bar to the appellant's right to now claim a reference under section 18, for, he can no longer be treated to be a person interested who has not accept the award."

Another reliance is placed on a case titled Government of N.W.F.P. and others v. Akbar Shah and others (2010 SCMR 1408) wherein the Hon'ble Apex Court has held that:

"6....It is established on the record that the respondents/plaintiffs had received compensation as determined by the Land Acquisition Collector through the Award without any protest. Respondents/plaintiffs had no lawful right to file reference under section 18 of the Land Acquisition Act read with sections 30 and 31(2) of the Land Acquisition Act as law laid down by this Court in Ghulam Muhammad' s case PLD 1967 SC 191."

Further reliance is placed on a case cited as Land Acquisition Collector (M-I), National Highway Authority Islamabad and 4 others v. Zahir Shah and 5 others (2016 YLR 2462).

In these circumstances, the respondents were debarred to file Reference claiming enhancement of compensation as they had not recorded any protest at the time of receipt of the compensation.

1. Moreover, the documentary evidence (i.e. Exh.A.5 to Exh.A.14) was produced on behalf of the respondents by their counsel in his statement whereas it is mandatory requirement of law that documents relied upon should be produced in the evidence by party in its own statement so that the adverse party may have a fair opportunity to cross-examine the same, as such the documents produced by the respondent counsel lack intrinsic value and such documents can validly be excluded from consideration. Reliance is placed on the case title Mst. Akhtar Sultana v. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715). Similar view has been reiterated by the Hon'ble Supreme Court of Pakistan in its latest judgment cited as Rustam and others v. Jehangir (deceased) through LRs. (2023 SCMR 730) wherein it is held as under:-

2025 Y L R 197

[Lahore]

Before Muhammad Amjad Rafiq, J

Muhammad Umar and others---Appellants

Versus

The State and others---Respondents

Criminal Appeal No. 58520-J and Criminal Revision No. 49773 of 2020, heard on 14th May, 2024.

(a) Criminal trial---

----Circumstantial evidence---Conviction---Scope---It is imperative for the prosecution to provide all links in chain as unbroken, where one end of the same touches the dead body and the other the neck of the accused.

Muhammad Sohail alias Samma and others v. The State 2019 PCr.LJ 1652 and Meer Nawaz alias Meero v. The State PLJ 2022 Cr.C 955 ref.

Muhammad Tayab and another The State and others 2023 YLR 2207 and Lejzor Teper v. The Queen PLD 1952 Privy Council 119 rel.

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

----Ss. 302(b), 460 & 411---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, dishonestly receiving stolen property---Appreciation of evidence---Presence of eye-witness at the spot doubtful---Accused were charged for committing murder of step daughter and granddaughter of complainant and in addition to that stealing some household articles---Prosecution produced son of the complainant who with the help of neighbour while scaling over to the place of occurrence had viewed the deadbody of step daughter of complainant lying on the bed and that of his granddaughter in other room on the carpet with tied hands and feet and associated injuries on their bodies as mentioned in FIR---Said neighbor did not appear as a witness in the dock and Investigating Officer in his deposition did not mention presence of son of complainant at the crime scene when he first visited the place of occurrence---Though it was stated that Investigating Officer recorded the statement of many people including son of complainant at the spot but presence of witness in question was doubtful in the sense that he had not been cited as attesting witness on any memo. of spot recoveries---Non-appearance of neighbor and due to death of complainant single testimony of son of complainant in the form of res gestae could not be corroborated---Thus, as first relevant fact became doubtful it put a blur on rest of the evidence of prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 460 & 411---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, dishonestly receiving stolen property---Appreciation of evidence---Circumstantial evidence---Scope---Accused were charged for committing murder of step daughter and granddaughter of complainant and in addition to that stealing some household articles---Prosecution produced two witnesses of wajtakar, who claimed their arrival at the place of occurrence at about 7:00 a.m. and they had seen two persons coming out of said house on a motorcycle along with some household articles which were tied in a cloth in the form of a bale along with, television L.C.D.---Both the witnesses also claimed that they had a dialogue with said two persons and asked from them about "MAW" to which they responded that neither they knew "MAW" nor "MAW" had come to that house and both the said persons thereafter went away---Presence of these two witnesses was not proved at the relevant date and time due to the reason that they had not stated the reason of their meeting with "MAW" and also did not tell the link of "MAW" with the house of occurrence---Further they did not explain features of two persons whom they met nor stated that in their presence both the accused had also locked the house and then went away (because according to prosecution, house was locked from inside)---Further their story of moving from place "MT" to place "JT" on foot and reaching there within half an hour was also not believable because both the places were at quite a distance---Fact of their relation with "MAW" was also a missing link due to non-appearance of "MAW" as witness---Said witnesses conceded that they could not produce any proof regarding their visit to see "MAW" on the day of occurrence---Both the said witnesses during their cross-examination conceded the fact that they never pointed out the house of occurrence or the house of "MAW" to the Investigating Officer---Said witnesses had not mentioned any weapon (danda) etc. carried by accused/persons of the case while leaving the house of occurrence because prosecution did not claim availability of crime weapon at the place of occurrence on first inspection---Statements of said witnesses were also not worthy because they did not see the accused/appellants in a situation when they were allegedly committing the murders---Claim of these witnesses of their appearance before the police on the same night i.e., 22.04.2014 after registration of FIR also did not appeal to reason because no supplementary statement of the complainant was available of said date and draftsman conceded during cross-examination that on site plan, the Investigating Officer had written in red notes that accused were not known till 28.04.2014---Further when these two witnesses appeared during identification parade, they might have given some statements but identification parade with complete proceedings was not produced in evidence, therefore, it did not help the prosecution to use such identification parade as explanatory evidence---Investigating Officer further conceded during cross-examination that neither he obtained CDR of these witnesses nor collected any ticket etc. of their bus---Thus, presence of said witnesses could not be established as claimed by them---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 460 & 411---Qanun-e-Shahadat (10 of 1984), Art. 22---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, dishonestly receiving stolen property---Appreciation of evidence---Test identification parade---Infirmities---Accused were charged for committing murder of step daughter and granddaughter of complainant and in addition to that stealing some household articles---Record showed that a photo copy of identification parade was produced that too with one page missing wherein only the proceedings to the extent of one witness was mentioned---Judicial Magistrate while appearing before the Trial Court had also not narrated the whole proceedings of identification parade, however, during cross-examination claimed that witnesses had stated the roles of accused but conceded that neither he recorded features of dummies nor mentioned that witnesses had identified the accused with features; he further conceded that he did not verify the objection raised by accused of taking his pictures in the police station---Thus, fact of identification of accused remained unproved---Perusal of record showed that original report of identification parade was available in the file but could not be exhibited in evidence---Moreover, it was a joint identification parade which could not be read against the accused/appellants as the same was defective identification parade---Appeal against conviction was allowed, in circumstances.

PLD 2019 SC 488 and Mian Sohail Ahmed and others v. The State and others 2019 SCMR 1956 rel.

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

----Ss. 302(b), 460 & 411---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, dishonestly receiving stolen property---Appreciation of evidence---Recovery of certain articles not proved in accordance with law---Accused were charged for committing murder of step daughter and granddaughter of complainant and in addition to that stealing some household articles---Record showed that certain articles belonging to the deceased were recovered from the accused---However, complainant had not given any details of said articles during registration of FIR rather through his supplementary statement claimed that household articles which included mobile phone, LCD, gold ornaments, passport etc. were allegedly stolen by the accused/appellants---Such supplementary statement dated 22.04.2014 in the form of written application was available in the record but had not been exhibited---Non-exhibition of such supplementary statement (in written form) seemed result of mala fide because in such application names of appellants were mentioned as accused persons despite the fact that source of their nomination was not available with the prosecution, as by then witnesses of wajtakar did not name any of the accused persons---Details of articles which were stolen could not be brought on record except in the form of recovery, later shown from the accused/appellants---Witnesses of wajtakar though had stated to have seen the accused/appellants with a LCD and household articles but one witness explained in examination in chief that household articles were in a cloth in the form of a bale---After recovery such articles were allegedly identified by the complainant, his son and mother of deceased---Complainant did not appear as witness as he had died, and mother of deceased was not produced, whereas son of complainant neither narrated in his statement about the details of all articles nor he was the resident of house of occurrence so as to correctly identify such articles---Even otherwise process of identification of an article was also required to be conducted by the Magistrate in the same fashion as he did for identification of a suspect---In the instant case the identification of recovered items had not been properly conducted, rendering the entire recovery a nullity in the eyes of law, therefore, it could not be said with certainty that the recovered articles were the same which were allegedly stolen---Appeal against conviction was allowed, in circumstances.

The State and others v. Abdul Khaliq and others PLD 2011 SC 554; Yasir Imran alias Yasir Arafat v. Muhammad Ashraf and another 2014 MLD 337; State of Vindhya Pradeshs v. Sarua Munni Dhimar and others AIR 1954 V.P 42 (Vol. 41 C.N.15); Noor Ullah and 2 others v. The State and another 2012 YLR 2618; The State v. Zar Muhammad and 3 others 2019 YLR 1663 and Hashim Qasim and another v. The State 2017 SCMR 986 Rel.

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

----Ss. 302(b), 460 & 411---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, dishonestly receiving stolen property---Appreciation of evidence---Recovery of SIM---Inconsequential---Accused were charged for committing murder of step daughter and granddaughter of complainant and in addition to that stealing some household articles---Record showed that a SIM was recovered from the place of occurrence by the Investigator, who claimed that it was in the name of wife of accused/appellant---Recovery witness of such SIM conceded that he could not tell the surroundings of place of occurrence, i.e., east, west, south and north despite the fact that he visited that place thereafter 2/3 times---Investigator conceded that he had not recorded the statement of any official of mobile company in that respect---It was further conceded by investigator that neither he took into possession the mobile phones of accused nor collected their CDR---Thus, evidence of SIM was not useful for prosecution---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 460 & 411---Qatl-i-amd, person jointly concerned in lurking house-trespass or house-breaking by night, dishonestly receiving stolen property---Appreciation of evidence---DNA profile---Accused were charged for committing murder of step daughter and granddaughter of complainant and in addition to that stealing some household articles---In this case, main stay of prosecution was DNA profile matching and matching of finger prints---Samples for DNA and LFP were collected by the crime scene unit of Forensic Science Agency---Junior Forensic Scientist stated that he collected 22 exhibits from the place of occurrence mentioned in exhibit sheet and deposited the same before ERU (evidence receiving unit) of Forensic Science Agency on 23.04.2014---First anomaly as observed was of direct depositing of samples by the expert which was not the mandate of Forensic Science Agency---Neither such samples were recorded in register No.19 of police station for their custody and then dispatched to Forensic Science Agency nor Forensic Science AgencyReport mentioned the name of any scientist who deposited such samples except the expression 'received from crime scene unit'---Forensic Science Agency had also not mentioned the nature of seal over such samples---Some of the samples were also deposited by a constable firstly on 28.04.2014 and then on 5th May, 2014 as mentioned in the Forensic Science Agency Report without specifying the nature of samples in the report---If constable was the man who deposited the samples and that too on 5th May, 2014, then prosecution case became zero because by then accused had already been arrested on 29.04.2014---No seminal material was detected on the vaginal swabs of victims/deceased ladies which indicated a different story, if the victims were at the mercy of accused for whole night---No drug or poison was detected from the water rinse bottles which were transmitted to the office of Forensic Science Agency for analysis---Despite the fact that human DNA was obtained from different items, no DNA profile matching was done---All this indicated something adverse to prosecution case, disclosure of which might have run against the culpability of accused persons and it could safely be said that it was an attempt to hide or conceal something to save the actual culprits responsible for such murders---Thus, prosecution had not come up with the complete truth---Appeal against conviction was allowed, in circumstances.

(h) Criminal trial---

----Medical evidence---Scope---Medical evidence cannot be made basis to record or sustain conviction because it can only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. but never identifies the real assailant.

Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251 rel.

(i) Criminal trial---

----Benefit of doubt---Principle---Not necessary that there should be several circumstances creating doubt, rather one reasonable doubt would be sufficient to acquit the occurred.

Sajjad Hussain v. The State 2022 SCMR 1540 and Abdul Ghafoor v. The State 2022 SCMR 1527 rel.

Ch. Muhammad Yaqoob for Appellant No. 1.

Usman Sarwar and Miss Samra Malik for Respondent No. 2.

Miss Asmat Parveen, D.D.P.P. for the State.

Rai Usman Ahmad and Adil Noor Ahmad for the Complainant.

Date of hearing: 14th May, 2024.

Judgment

Muhammad Amjad Rafiq, J.---Appellants, Muhammad Umer and Muhammad Asim were tried by the learned Additional Sessions Judge, Lahore in case FIR No.314 dated 22.04.2014 under sections 302, 460 and 411, P.P.C. Police Station Township District Lahore and on conclusion of trial, vide judgment dated 12.09.2020, they were convicted and sentenced as under:-

(i) Imprisonment for life under section 302(b)/34, P.P.C. as 'Tazir' each on two counts along with compensation Rs.3,00,000/- each under section 544-A, Cr.P.C payable to the legal heirs of each deceased recoverable as arrears of land revenue and in default thereof to further undergo six months S.I each.

(ii) Ten years RI each under section 460, P.P.C..

(iii) Three years RI each under section 411, P.P.C. with fine of Rs.50,000/- each and in default thereof to further undergo two months S.I each.

Sentences of the appellants were ordered to run concurrently with benefit of section 382-B of Cr.P.C.

1. Case opens up by Mirza Javed Anwar Baig complainant (died during the trial), through written application (Exh.PB), formalized later into FIR (Exh.PB/2) about the death of his step daughter Kanwal Javaid and granddaughter Tayyaba in his house in circumstances leading to culpable homicide. According to his narration, husband of Kanawal had gone to Jeddah and she along with her daughter Tayyaba was residing with him at 412/A-1 Johar Town Lahore for his care as an ailing family member. On 21.04.2014 he went to reside with his son Mirza Munawar Hussain Baig (PW-5) at Government Punjab Society, as he usually did. On the next day i.e. 22.04.2014 at about 12:00 noon, he along with his driver returned; knocked at the door, finding no response from inside he rang her daughter on cell phone which was not attended, so he went to Hair Salon; returned again at about 01:45 p.m., repeated the knock and phone but while facing similar situation, he went to his in-laws at Rehmanpura. After another failed attempt at 3:00 pm, thinking she might have gone to her in-laws he decided to visit again. At 9.00 p.m. he returned with his son (PW-5) but situation remained same, no body opened the door. Suspecting some foul play he asked his son to access the house from the neighbour side who along with one Ahmad scaled over the wall of the house and found Kanwal was lying dead on a bed with marks of violence on her face and neck while in other room his maternal grand-daughter Tayyaba was also found dead on carpet whose hands and feet were tied having violence marks on her face too. FIR was registered against unknown accused persons. Subsequently complainant got recorded his supplementary statement mentioning that some household articles were also missing from the house.

2. Situation, empty and blank with no lead whatsoever, was given to investigator who visited the crime scene same night i.e., 22.04.2014; inquest of dead bodies was formalized through injury statements and the inquest reports; PFSA crime scene unit was summoned who collected the articles, suspected to have biological stains, for DNA and also finger prints. An exhibit sheet showing collection of 22 articles from the crime scene was prepared by crime scene unit which they later deposited in the PFSA for analysis. Autopsy was done on the next morning. Police allegedly recorded statement of two witnesses on the same night (22.04.2014) who stated to have seen two unknown persons in the morning of 22.04.2014 at about 7.00 a.m. while leaving the house of occurrence on motor cycle with some articles wrapped in a cloth, like bale with LCD and they had a dialogue with unknown accused to know the presence of their landlord namely Masood Akbar Warraich, in the house of occurrence. Another set of witnesses namely Imran Yasin and Javid Iqbal recorded later who had seen Muhammad Umar and Muhammad Asim (accused/appellants) at the homestead of place of occurrence while ringing the doorbell at about 11.00 p.m. on 21.04.2014. on arrest of accused/appellant, they were put to successful test identification parade, later number of stolen articles were also shown recovered from them. A SIM collected from the place of occurrence was found to be in the name of wife of Muhammad Asim, accused/appellant. PFSA report was returned with matching of some biological stains and finger prints with both the accused/appellants. They were accordingly challaned; disclosure of prosecution evidence was made to them and on the basis of information they denied the formal charge and claimed the trial.

3. At the trial, prosecution examined as many as 17 witnesses; Muhammad Munir (PW.1), Ahmad Raza (PW.2), Imran Yasin (PW.3), Javed Iqbal (PW.4) Mirza Munawar Hussain Baig (PW.5), Amjad Ali constable (PW-6), Muhammad Yahya S.I (PW-7), Ch. Zia-ud-Din Chishti draftsman (PW-8), Muhammad Waqas constable (PW-9), Muhammad Sarwar ASI (PW-10), Muhammad Boota Constable (PW-11), Dr. Faiza Munir Qazi (PW-12), Dr. Shazia Manzoor (PW-13), Khalid Hussain 1374/L ASI (PW-14), Mundassar Hassan Magistrate (PW-15), Muhammad Azeem Junior Forensic Scientist (PW-16) and Zulfiqar Ahmad Inspector (PW-17). Statements of accused/appellants under Section 342, Cr.P.C were recorded wherein they denied the prosecution version with the Claim that they have falsely been involved in this case. While responding to question No. 4, Muhammad Umar accused/appellant stated that he has been involved by Masood Akbar Warraich, his Khalo (husband of maternal aunt) however, both did not opt to record their statement under Section 340(2), Cr.P.C. After conclusion of trial, they were convicted and sentenced forecited.

4. In response to claim of appellants' counsel that no direct evidence is available in this case, learned counsel for the complainant stated that DNA and finger prints evidence is sufficient to sustain the conviction and sentence of the accused/appellants and placed reliance on case reported as "Muhammad Sohail alias Samma and others v. The State" (2019 PCr.LJ 1652). Learned Deputy District Public Prosecutor submitted that circumstantial evidence in this case has a big support to forensic evidence and hypothesis of innocence stands far away from the accused/appellants who are in tight clutches of prosecution evidence. She, finally supported the impugned judgment of conviction and sentence.

5. Proponents' say in the light of available evidence put the Court at guard to minutely examine the march of prosecution to catch the alleged culpability of accused/appellants.

6. According to prosecution's own showing, it was an unseen occurrence, hinges upon the circumstantial evidence which usually flows from the artefacts of death with sequence of articles lying near or around the dead body, examination whereof with naked eye by the police or expert is required to be done only in prescribed manner, procedural mandate is mentioned in Rule 25.33 of Police Rules, 1934, reproduced below:-

25.33. Investigating Officer - action of at scene of death. - On arrival at the place where the body of a deceased person is lying, the police officer making the investigation shall act as follows:-

(1) He shall prevent the destruction of evidence as to the cause of death.

(2) He shall prevent crowding round the body and the obliteration of foot-steps.

(3) He shall prevent unnecessary access to the body until the investigation is concluded.

(4) He shall cover up footprints with suitable vessels so long as may be necessary.

(5) He shall draw a correct plan of the scene of death including all features necessary to a right understanding of the case.

(6) If no surgeon or other officer arrives, he shall, together with the other persons conducting the investigation, carefully examine the body and note all abnormal appearance.

(7) He shall remove, mark with a seal, and seal up all clothing not adhering to, or required as a covering for, the body, all ornaments, anything which may have caused or been concerned in the death of the deceased and shall make an inventory thereof.

In the inventory shall be described the position in which each thing was found and any blood-stain, mark, rent, injury or other noticeable fact in connection with such thing. The number and dimension of such stains, marks, rents, injuries, etc., shall also be given in the inventory.

A counterpart of the mark and seal attached to such thing or to the parcel in which it has been enclosed shall be entered in, or attached to, the inventory.

Such inventory shall form part of the inquest report.

(8) He shall take the finger prints of the deceased person if the body is unidentified.

(9) The photographing of the body in situ and of the scene of the occurrence may prove of great evidential value.

1. Under the command of above Rule, Investigating Officer can seek technical assistance from the experts as per Rule 25.14 of Police Rules, 1934:-

25.14. Technical assistance in investigation. -

(1) Investigating Officers are expected to take steps to secure expert technical assistance and advice, whenever such appears desirable in the course of an investigation for purposes of evidence or for demonstration in court.

(2) The Criminal Investigation Department is able to obtain expert technical assistance on many subjects and should be freely consulted in that connection by Investigating Officers through their Superintendents of Police. When such assistance is required, a full report shall be sent to the Assistant Inspector General, Crime and Criminal Tribes, so that he may be in a position to decide whether it is essential to send an expert to the scene of the crime or whether the material to be dealt with should be sent to the expert. In making such reports use should be made of telegraphic and telephonic facilities.

(3) The Criminal Investigation Department, in conjunction with the Finger Print Bureau, undertakes photographic and some other varieties of technical work. In addition, it is in contact with technical experts on may subjects, whose services can frequently be obtained for work in connection with criminal investigation. In respect of the examination of handwriting, Investigating Officers can obtain the services of the Examiner of Questioned Documents with the Government of India, through the Criminal Investigation Department. That department is also the channel for obtaining the services of the Inspector of Explosives for Northern India who, as well as advising on explosives generally, can give expert opinion as to whether a weapon has been recently fired, whether certain matter is gunpowder or not, and all questions generally savouring of chemical analysis.

Rule 25.14 in all covers calling in aid of PFSA teams for the purpose of preservation, collection, sampling and packaging of articles, biological stains and securing the finger prints followed by handing over the parcels to the police for its dispatch to PFSA analysis. Investigator is required to stamp such parcels with seal of police station by mentioning the particulars of case as required by Rule 25.33 cited above, its entry into register No. 19 of police station and then after obtaining docket/permission from the senior police officer of the district ensure safe dispatch and deposit of parcels to PFSA. Rules-25.41 of Police Rules, 1934 relates to channel of communication with Chemical Examiner which mandates as under:-

"Superintendents of Police are authorised to correspond with and submit articles for analysis to the Chemical Examiner direct in all cases other than human poisoning cases…..."

Further requirement of Rule 25.41, has also been observed by this Court in case reported as "Meer Nawaz alias Meero v. The State" (PLJ 2022 Cr. C 955 Lahore).

1. In no case, an expert can take the samples direct to PFSA for analysis because it is the investigator to decide what sort of analysis he is seeking in that particular case. Rule-25.41 (2) impliedly prohibits such practice which is mentioned in said Rule in the form of Notes: - (2) as under:-

"(2) In no case should the Medical Officer attempt to apply tests for himself. Any such procedure is liable to vitiate the subsequent investigation of the case in the laboratory of the Chemical Examiner"

Juxtaposing of above rule with mandate of PFSA is essential to see if any power is available to PFSA experts to take a lead on crime scene independent of investigators. As per section-4 of the Punjab Forensic Science Agency Act, 2007, functions of PFSA are as under:-

4. Functions of the Agency: The Agency shall:

a) undertake examination of forensic material;

b) render expert opinion with regard to examination of forensic material conducted by it;

c) procure, operate and maintain scientific instruments for examination of forensic material;

d) propose advancement in forensic techniques and suggest use of suitable scientific instruments for examination of forensic material;

e) seek clarification from the person involved in collection or handling of forensic material in the prescribed manner;

f) recommend the procedure for the collection, preservation and handling of forensic material;

g) subject to the direction of the Government, collect forensic material that requires special expertise or scientific methods for collection and preservation;

h) maintain record for examination of forensic material, including record pertaining to the identity of a person connected with or accused of an offence, in the prescribed manner;

i) promote general awareness on matters relating to forensics; and

j) perform any other function connected with or ancillary to the above functions.

As per above mandate, PFSA can seek clarification from the person who has collected or handled the forensic material in prescribed manner or subject to direction of government collect forensic material that requires special expertise or scientific methods for collection and preservation. Thus, in no case PFSA, at its own can visit the crime scene except summoned by the investigator which he must do if essential. Similarly, experts of PFSA also cannot dispatch material directly to PFSA.

1. Further introducing an expert in chain of safe custody of parceled articles would amount to compromise the process because it is the legal duty of police to dispatch such articles to PFSA and not the expert and if the custody protocols are breached, then police can be held responsible and not the experts. Such breach amounts to disobeying the direction of law or defective investigation which is culpable under section 166 and 186 (2) of P.P.C., however, if at the crime scene any expert in connivance destroys or manipulates evidence can be bracketed for offences under sections 166 or 217 of P.P.C. but not otherwise because their function is to conduct test or analysis of forensic material, therefore, are held responsible only if tender false opinion as mentioned in section 13 of Punjab Forensic Science Agency Act, 2007 as under:-

"13. Offence: - (1) If an expert or official of the Agency knowingly or negligently renders false, incorrect or misleading opinion before a Court, tribunal or authority, he shall be punished with imprisonment which may extend to six months or with fine which may extend to fifty thousand rupees or with both"

1. Admittedly, there was no direct evidence in the matter and the prosecution evidence was based upon circumstantial evidence in the form of 'Wajtakar'. 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 as unbroken, where one end of the same touches the dead body and the other the neck of the accused. In a case reported as "Muhammad Tayab and another v. The State and others" (2023 YLR 2207), the Division Bench of this Court while citing and relying on following case law:-

Gul Muhammad and others v. The State" (2021 SCMR 381); "Naveed Asghar and 2 others v. The State" (PLD 2021 SC 600); "Muhammad Ismail and others v. The State" (2017 SCMR 898), "Azeem Khan and another v. Mujahid Khan and others" (2016 SCMR 274);"Niaz Ahmed v. Hasrat Mahmood" (PLD 2016 SC 70); "Muhammad Saleem v. Shabbir Ahmed and others" (2016 SCMR 1605); "Muhammad Hussain v. The State" (2011 SCMR 1127); "Zafar Abbas v. The State" (2010 SCMR 939) "Tahir Javed v. The State" (2009 SCMR 166); "Ibrahim and others v. The State" (2009 SCMR 407); "Altaf Hussain v. Fakhar Hussain and another" (2008 SCMR 1103); "Akbar Ali v. The State" (2007 SCMR 486); "Liaqat Ali v. The State" (2007 SCMR 1307); "Abdul Mateen v. Sahib Khan and others" (PLD 2006 SC 538); "Munawar Shah v. Liaquat Hussain and others" (2002 SCMR 713); "Munir Ahmad DAR v. Imran and others" (2001 SCMR 1773); "Azim v. The State" (PLD 1965 SC 44) and "Siraj v. The Crown" (PLD 1956 Federal Court 123).

Including "Lejzor Teper v. The Queen" (PLD 1952 Privy Council 119) and others, dilated upon the strands of circumstantial evidence like motive, plans and preparatory acts, capacity, opportunity, identity, continuance, failure to give evidence and failure to provide evidence, and held that circumstantial evidence must be conclusive.

1. Keeping in view the above standards of evidence and protocols/precautions, let the prosecution evidence be examined. Prosecution produced Mirza Munawar Hussain Baig PW-5 son of the complainant that he with the help of neighbour Ahmad Hassan Zaidi while scaling over to the place of occurrence had viewed the deadbody of Kanwal lying on the bed and that of Tayyaba in other room on the carpet with tied hands and feet and associated injuries on their bodies as mentioned in FIR. Ahmad Hassan Zaidi did not appear as a witness in the dock and Investigating Officer Zulfiqar Ahmad PW-17 in his deposition did not mention presence of Mirza Munawar Hussain Baig PW-5 at the crime scene when he first visited the place of occurrence. Though stated that he recorded the statement of many people including Munawar Baig at the spot but presence of this witness is doubtful in the sense that he has not been cited as attesting witness on any memo. of spot recoveries. Non-appearance of Ahmad Hassan Zaidi and due to death of complainant his single testimony in the form of res gestae could not be corroborated. Thus, first relevant fact becomes rust putting a blur lens on rest of the evidence of prosecution.

2. Next set produced by prosecution was the witnesses of wajtakar namely Muhammad Munir PW-1 and Ahmad Raza PW-2, who claimed their arrival at 6.00 a.m. on 22.04.2014 at 36-N, Model Town, Lahore in order to meet Masood Akbar Warraich, landlord of their village but were informed of his presence at 412/A-1, Johar Town, Lahore (Place of occurrence), leading them immediately to said house and when they reached at the place of occurrence at about 7:00 a.m., they saw two persons coming out of said house on a motorcycle along with some household articles which were tied in a cloth in the form of a bale along with L.C.D. Both the witnesses PW-1 and PW-2 also claimed that they had a along with said two persons and asked from them about Masood Akbar Warraich who responded that neither they know Masood nor he had come to this house, and both the said persons thereafter went away in their presence. The presence of these two witnesses is not proved at the relevant date and time due to the reason that they have not stated the reason of their meeting with Masood Akbar Warraich and also did not tell the link of Masood Akbar Warraich with the house of occurrence. Further they did not explain features of two persons whom they met nor stated that in their presence both two accused have also locked the house and then went away. (Because according to prosecution, house was locked from inside). Further their story of moving from Model Town to Johar Town on foot and reaching there within half an hour is also not believable because both the places are at a quite distance. The fact of their relation with Masood Akbar Warraich is also a missing link due to non-appearance of Masood Akbar Warraich as witness. They conceded that they could not produce any proof regarding their visit to see Masood Akbar Warraich on the day of occurrence. Both the PWs during their cross-examination conceded the fact that they never pointed out the house of occurrence or the house of Masood Akbar Warraich to the I.O of the case. These PWs have not mentioned any weapon (Danda) etc. carried by accused/persons of this case while leaving the house of occurrence because prosecution did not claim availability of crime weapon at the place of occurrence on first inspection. Their statements are also not of worth because they did not see the accused/appellants in a situation when they were allegedly committing the murders.

Claim of these PWs of their appearance before the police on the same night i.e., 22.04.2014 after registration of FIR also does not appeal to the reason because no supplementary statement of the complainant was available of said date and Ch. Zia-ud-Din Draftsman conceded during cross-examination that on Ex. PC (site plan), the I.O. has written in red notes that accused were not known till 28.04.2014. Further when these two witnesses appeared during identification parade, they might have given some statements but identification parade with complete proceedings was not produced in the evidence, therefore, it could not help the prosecution to use such identification parade as explanatory evidence. Defence claimed these two PWs as stock witnesses being gunmen of Masood Akbar Warraich, Khalo of Muhammad Umar accused/appellant and PW-17 during cross-examination stated for such fact as under:-

"During my investigation from 08.05.2014 to onward, the complainant party did not produce any evidence to controvert that Muhammad Munir and Ahmad Raza were not gunmen of Khalu of accused."

Investigating Officer further conceded during cross-examination that neither he obtained CDR of these PWs nor collected any ticket etc. of their bus travelling to Lahore on the fateful day. Thus, presence of PW-1 and PW-2 could not be established as claimed by them.

1. 2nd set of two witnesses namely Imran Yasin PW-3 and Javid Iqbal PW-4 deposed to the effect that on 21.04.2014 at 11.00 p.m. they both saw the appellants while ringing the doorbell at house of occurrence. Imran Yousaf PW-3 claimed himself as an employee at Paan and cigarette shop of Khalid Hussain, father-in-law of Kanwal deceased while Javid Iqbal, PW-4 as Humzulf (husband of wife's sister) of Khalid Hussain. According to their statement, they were proceeding to main bazar Johar Town on a motor cycle when saw the accused at the door of house of occurrence, and thereafter both these witnesses went to Rawalpindi who after their return came to know about the occurrence. PW-3 being permanent resident of Arifwala, Pakpatan was working at the rented shop of Khalid Hussain at Muslim Town Morr and Javid Iqbal was running his business of flower shop at Litton Road, Chowk Jinnah and Shahdara. Both being not of same age nor resident of Johar Town are not expected to be present at the place of occurrence at the relevant time; therefore, being chance witness, they could not justify their presence. It has further been observed that neither they submit the proof of their commutation to Rawalpindi, nor Khalid Hussain appeared as a witness to establish his relation with the witnesses as claimed by them. They both made statement before the investigating officer on 09.05.2014 as per deposition of PW-17. This delay of 18 days since 21.04.2014 could not be justified by them. Thus, there testimony is of not a value to accept as a support to prosecution case.

2. Identification parade was deficient to be read into the evidence because when Magistrate appeared before the trial Court to record his statement as PW-15 stated as under:-

"It is correct that the original report and proceedings of identification parade recorded by me are not present before me."

A photo copy of identification parade was produced that too with one page missing wherein only the proceedings to the extent of PW-1 is mentioned. Mudassar Hassan, Magistrate (PW-15) while appearing before the trial Court has also not narrated the whole proceedings of identification parade, however, during cross-examination claimed that PWs have stated the roles of accused but conceded that neither he recorded features of dummies nor mentioned that PWs have identified the accused with features, further conceded that he did not verify the objection raised by accused of their taking of pictures in the police station; therefore, fact of identification of accused remained unsatiated and was not proved. However, perusal of record shows that original report of identification parade is available in the file but could not be exhibited in evidence. It has further been observed that it was a joint identification parade which cannot be read against the accused/ appellants because it opposes to dictum laid down by Supreme Court of Pakistan in many cases like PLD 2019 Supreme Court 488 wherein notice was given to Kanwar Anwar Ali, Special Judicial Magistrate for his dereliction of duty and lack of sufficient legal knowledge on conducting defective identification parade, and "Mian Sohail Ahmed and others v. The State and others" (2019 SCMR 1956).

1. As far as the recovery of certain articles belonging to the deceased are concerned, it is sufficient to mention complainant has not given any details of said articles during registration of FIR rather through his supplementary statement claimed that household articles which includes mobile phone, LCD, gold ornaments, passport etc. were allegedly stolen by the accused/appellants. Such supplementary statement dated 22.04.2014 in the form of written application is available in the record but has not been exhibited as opposed to dictum laid down by Supreme Court of Pakistan in a case reported as "The State and others v. Abdul Khaliq and others" (PLD 2011 SC 554), followed in case reported as "Yasir Imran alias Yasir Arafat v. Muhammad Ashraf and another" (2014 MLD 337). Non-exhibition of such supplementary statement (in written form) seemed result of mala fide because in such application names of Muhammad Asim and Muhammad Umar were mentioned as accused persons despite the fact source of their nomination was not available with the prosecution, as by then PW-1 or PW-2 did not name any of the accused persons. It was a worst case of tunnel vision wherein investigation was fully directed and under the lead of influential who wanted to book the offenders at every cost. This mala fide of prosecution could be arrested, had the complainant alive and appeared in the dock who did not care for whole day to check the house why it was locked with no response from inside, rather preferred to roam around different places without any tension or depression, and also did not inquire or seek help from the neighbours or relatives of her step daughter. All that shows that complainant was hiding something unpleasant against his own near and dear due to which his affinity with his step daughter fell short of. Thus, details of articles which were stolen could not be brought on record except in the form of recovery, later shown from the accused/appellants. I am conscious that PW-1 and PW-2 though have stated to have seen the accused/appellants with LCD and house hold articles but PW-1 explained in examination in chief that household articles were in a cloth in the form of a bale. Similarly, PW-2 has also not stated the details of household articles that was the reason they were confronted with their statement under section 161, Cr.P.C. against the fact of carrying LCD. After recovery such articles were allegedly identified by the complainant, his son Munawar Hussain Baig PW-5 and mother of Kanwal deceased. Complainant did not appear as witness as being dead, mother of Kanwal deceased was not produced, whereas PW-5 neither narrated in his statement about the details of all articles nor he was the resident of house of occurrence so as to correctly identify such articles. Even otherwise process of identification of an article is also required to be conducted by the Magistrate in the same fashion as he does for identification of a suspect. This has been explained in law in terms that evidentiary value of identification parade as being relevant fact in the form of explanatory evidence is regulated under Article 22 of Qanun-e-Shahadat Order, 1984, relevant part may be read as under:-

22. Facts necessary to explain or introduce relevant facts: Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of anything or person whose identity is relevant, or fix the time or place at which any fact in issue, or relevant fact happened, or Which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.

(Emphasis supplied)

The words 'identity of anything or person' in the above Article makes no difference of process for both. I am also mindful of the fact that identification of articles in the manner as has been done in this case, is least permissible in law. The most essential requirement is that the witnesses should not have had an opportunity of seeing the property after its recovery and before its identification before the Magistrate. For that purpose, it is necessary to seal the property as soon as it is recovered and to keep it in a sealed condition till it is produced before the Magistrate. If the police officers who take the sealed bundles to the police station after recovery and who take it to the Magistrate for identification proceedings should be examined to prove that the sealed bundles were not tampered in the way. The sealed bundles should be opened in the presence of the Magistrate conducting the identification proceedings and he should depose about it. The property to be mixed with the property to be identified should also be sealed some days before witnesses are called and the bundle containing it should also be opened in the presence of the Magistrate who should testify about it in Court. Further the result of identification should be entered in the memorandum by the Magistrate in his own hand. Reliance is placed on a judgment from Indian jurisdiction reported as "State of Vindhya Pradeshs v. Sarua Munni Dhimar and others" (AIR 1954 V.P 42 (Vol. 41 C.N.15) and reliance is also on decision by Federal Shariat Court in cases reported as "Noor Ullah and 2 others v. The State and another" (2012 YLR 2618) and "The State v. Zar Muhammad and 3 others" (2019 YLR 1663). On the touchstone of above referred citations, I have no doubt to hold that in the instant case the identification of recovered items has not been properly conducted, rendering the entire recovery a nullity in the eyes of law, therefore, it cannot be said with certainty that the recovered articles were the same which were allegedly stolen. The recovered jewelry, the alleged stolen property, has been attempted to be proved as belongings of the deceased but no receipt etc., was produced by the prosecution before the I.O in support of their stance. Similar is the position with the identification of mobile phones and other alleged stolen articles. The I.O neither got forensic audit of the said mobiles from the expert concerned who may have retrieved data therefrom including the person who were in use of these mobile phones. Such failure on the part of investigator makes the recovery of these articles doubtful. Supreme Court of Pakistan has held that in cases of circumstantial evidence, there is every chance of fabricating the evidence, which can easily be procured; 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 guard against the trap of being deliberately misled into a false inference. Reliance is placed on case titled "Hashim Qasim and another v. The State" (2017 SCMR 986).

1. SIM P-64 recovered from the place of occurrence by Zulfiqar Ahmad, investigator (PW-17) was claimed to be found in the name of wife of Asim accused/appellant. Muhammad Waqas 23386/C PW-9 appeared as recovery witness of such SIM but conceded that he cannot tell the surroundings of place of occurrence, i.e., east, west, south and north despite the fact he visited that place thereafter 2/3 times. Investigator PW-17 conceded that he had not recorded the statement of any official of mobile company in this respect. Further conceded that neither he took into possession the mobile phones of accused Muhammad Umar and Muhammad Asim nor collected their CDR. Thus, this evidence is also not useful for prosecution.

2. In this case, main stay of prosecution was of DNA profile matching and matching of finger prints. According to report of PFSA Ex.PAA, DNA profile obtained from Tape role, Right hand nail scraping of Tayyaba and swabs taken from glass (items; 2, 5 and 9.1) stood matched with DNA profile of Muhammad Asim accused/appellant whereas DNA profile generated from 'Right hand nail scraping of Kanwal Bibi'(item-3) stood matched with DNA profile of Muhammad Umar accused/appellant. Similarly, as per Report EX.PBB, finger prints on 'an empty used ceramic cup of tea' were found to be identical with Muhammad Asim accused/appellant. It was shown that samples for DNA and LFP were collected by the crime scene unit of PFSA. PW-16 Muhammad Azeem Junior forensic scientist stated that he collected 22 exhibits from the place of occurrence mentioned in exhibit sheet Ex. PT and deposited the same before ERU (evidence receiving unit) of PFSA on 23.04.2014. First anomaly as observed was of direct depositing of samples by the expert which was not the mandate of PFSA as held in preceding paragraphs Nos. 8 and 9. Neither such samples were recorded in register No.19 of police station for their custody and then dispatch to PFSA nor PFSA report Ex. PAA mentions the name of any scientist who deposited such samples except the expression 'received from crime scene unit'. PFSA has also not mentioned the nature of seal over such samples. Some of the samples were also deposited by Muhammad Boota 14412/C firstly on 28.04.2014 and then on 5th May, 2014 as mentioned in the PFSA report without specifying the nature of samples in the report. If Boota was the man who deposited the samples and that too on 5th May, 2014, then prosecution case becomes zero because by then accused have already been arrested on 29.04.2014. Thus, sampling is in serious doubts. No seminal material was detected on the vaginal swabs of victims/deceased ladies which indicates a different story, if the victims were at the mercy of accused for whole night. No drug or poison was detected from the water rinse bottles which were transmitted to the office of PFSA for analysis. It has further been observed that despite the fact that human DNA was obtained from items 1.1, 4, 6, 7.1, 8.1, 10.1, 11.1, 12.1, and 15 but no DNA profile matching was done, similarly, analysis of item 16 was also not done. All that indicate something adverse to prosecution, disclosure of which may have run against the culpability of accused persons and it can safely be said that it was an attempt to hide or conceal something to save the actual culprits responsible for such murders. Thus, Prosecution has not come up with complete truth. It has further been observed that expert who appeared as PW-16 neither deposed about the complete process of collection of samples with precautions taken to avoid contamination nor stated the places from where his team preferred to take such samples. In this case what the expert or police had collected from the spot remained within the knowledge of police and experts only because neither complainant, his son nor other private person are the attesting witnesses to such sampling and collection. Moreover, deposition of Zulfiqar Ahmad PW-17, investigator put another doubt when he without naming the forensic scientist said that "officials of crime scene unit of PFSA procured finger prints and DNA sampling of accused persons thorough collecting 22 different articles" which raises a suspicion that sampling was done in the presence of accused/appellants that was the reason both accused/appellants while responding to question No.4 in their statements under section 342 Cr.P.C stated that they were arrested much prior to the date as shown by the police. These statements of accused/appellants also lend support from the deposition of investigator PW-17 when stated that "I formally arrested the accused Muhammad Asim and Muhammad Umer on 29.04.2014". Word "formally" has clear connotation that they were already in custody. Sans direct evidence and frail circumstantial evidence, Court cannot record conviction mere on the basis of PFSA reports particularly when there are serious doubts on preservation, collection, packaging and dispatch of samples. Reliance is on case reported as "Bahader Khan v. The State and another" (2012 P Cr. L J 24).

3. On the basis of claim for matching of DNA profile of Muhammad Asim with DNA available on tape role, glass and nail scraping of Tayyaba; and finger prints on 'an empty used ceramic cup of tea' were found to be identical with Muhammad Asim accused, likewise matching DNA of Muhammad Umar with nail scraping of Kanwal deceased, learned counsel for the complainant stated that conviction can be recorded even on the basis of forensic evidence and has referred proviso to Article 164 of the Qanun-e-Shahadat Order, 1984. Which says that "conviction on the basis of modern devices or techniques may be lawful". Counsel was reminded that proviso to Article 164 was added in the year 2017 but present case relates to the year 2014 well before the said amendment. Even otherwise, non-analysis of item No.16 and non-disclosure of matching of human DNA on other items with any other person or with the accused/appellants plus above cited irregularities make such evidence doubtful. Even otherwise such reports are only corroborative evidence and corroborative evidence could only be relied upon if the prosecution has proved the case through substantive evidence and in this case, there is no direct evidence of committing of murder; circumstantial evidence structured by the prosecution is of no worth to rely on to pass or uphold conviction against the accused/appellants.

2025 Y L R 229

[Lahore]

Before Masud Abid Naqvi, J

Abdul Shakoor through Legal Heirs and others---Petitioners

Versus

Rana Abid Mahmood and others---Respondents

Civil Revision No. 63321 of 2020, heard on 13th April, 2023.

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

----Art. 79---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Burden of proof---Suit was concurrently decreed against the defendants / petitioners---Validity---Record /evidence revealed that by producing two attesting witnesses of (exhibited) agreement to sell along with the Bank Manager as well as two attesting witnesses of receipt of balance sale consideration, both the documents were proved by the plaintiff/petitioner in accordance with the requirements of Art.79 of the Qanun-e-Shahadat, 1984---After successfully proving the documents, the onus shifted on the defendants /petitioners to negate the claim of plaintiff/respondent but only one of the eight defendants appeared as (defence) witness and no one else appeared on behalf of defendants /petitioners in support of their stance---No misreading or non-reading of evidence nor any infirmity, legal or factual, had been noticed in the impugned judgments and decrees passed by the both Courts below---Revision petition was dismissed, in circumstances.

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

----S. 12---Suit for specific performance of agreement to sell---Subsequent / second agreement to sell---Entitlement---Suit was concurrently decreed against the defendants / petitioners---Validity---Record revealed that predecessor-in-interest of (eight) defendants /petitioners acted in accordance with stipulated terms and conditions of 1st agreement to sell by executing the 2nd agreement to sell in favour of plaintiff/respondent---Said predecessor-in -interest was legally authorized to execute the 2nd agreement to sell in favour of plaintiff/respondent and after executing the 2nd agreement to sell voluntarily, his successors-in-interest (defendants /petitioners) could not wriggle out of the commitment of late predecessor-in-interest---No misreading or non-reading of evidence nor any infirmity, legal or factual, had been noticed in the impugned judgments and decrees passed by the both Courts below---Revision petition was dismissed, in circumstances.

Muhammad Jalil and 4 others v. Muhammad Sami and 8 others PLD 2007 Lahore 467; Mst. Jaiwanti Bai v. Messrs Amir Corporation and others PLD 2021 SC 434 and Nisar Ahmed Afzal v. Muhammad Taj and 7 others 2013 SCMR 146 ref.

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

----S. 115---Concurrent findings of courts below---Revisional jurisdiction of the High Court---Scope---Concurrent findings of the courts below based on proper appreciation of evidence are not open to interference by the revisional court in exercise of its jurisdiction under S.115, C.P.C., which is primarily meant for correction of jurisdictional defect/ error and material illegalities/ irregularities, resulting in miscarriage of justice to a party.

Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 ref.

Naveed Khalid for the Petitioners.

Waqas Haider Saqi for Respondent No. 1.

Atif Sattar Arieen for Respondent No. 3.

Proceeded against Ex-parte vide order dated 7th June, 2021 for Respondent No. 2.

Date of hearing: 13th April, 2023.

Judgment

Masud Abid Naqvi, J.---Brief facts necessary for the adjudication of this lis are that the plaintiff /respondent No.1 filed a suit for specific performance and possession with the averments that defendants Nos.9/respondent No.2 was the owner of disputed plot which was purchased by the predecessor in interest of defendant Nos. 1 to 8/petitioners namely Abdul Shakoor through agreement to sell dated 20.11.2008 after paying the total sale consideration. Thereafter, the predecessor in interest of defendants Nos.1 to 8/petitioners namely Abdul Shakoor agreed to sell the same plot to the plaintiff /respondent No.1 through agreement to sell dated 25.01.2011 by receiving an amount of Rs.5000/- cash and Rs.495000/- through cheque which was duly encashed as earnest money and also received the balance sale consideration on 16.11.2011 with the promise to transfer the title of disputed plot, after completion of process of LDA on his agreement to sell dated 20.11.2008. After his death, the plaintiff repeatedly asked the defendants Nos. 1 to 8/petitioners to execute the sale deed but they refused, hence the suit. The defendants Nos. 1 to 8/petitioners contested the suit by filing written statement and raising certain legal as well as factual objections while defendant No.9/respondent No.2 was proceeded against ex-parte by the learned trial court.

1. Out of divergent pleadings of the parties, issues were framed by the learned trial court. The parties produced their respective evidence and after recording the same, learned trial court decreed the suit of the plaintiff/respondent No.1 vide judgment and decree dated 23.10.2018. Feeling aggrieved, the defendants Nos.1 to 8/petitioners filed an appeal and learned Additional District Judge vide judgment and decree dated 17.11.2020 dismissed the appeal. Being dissatisfied, the petitioners/defendants Nos.1 to 8 have filed the instant Revision Petition and challenged the validity of the judgments and decrees passed by the learned courts below.

2. Learned counsel for the defendants Nos. 1 to 8/petitioners primarily argued that the predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor was not legally entitled to execute the disputed agreement to sell on the basis of agreement to sell, without being owner of disputed plot while the Learned counsel for the plaintiff/respondent No.1 fully supported the judgments and decrees of learned courts below and learned counsel for LDA/ defendant No.10/respondent No.3 also supported the arguments of learned counsel for the petitioners and the defendant No.9/ respondent No.2 was proceeded against ex-parte on 07.06.2021.

3. I have heard the arguments of learned counsel for the parties and minutely gone through the record as well as the impugned judgments and decrees.

4. The disputed plot was originally owned by Muhammad Bilal/ defendant No. 9/respondent No.2 as admitted by all the contesting parties including Lahore Development Authority/ defendant No.10/ respondent No.3 and agreement to sell dated 20.11.2008, executed by the Muhammad Bilal/ defendant No. 9/respondent No.2 in favour of the predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor is also an admitted document and has not been challenged by either of the contesting party and in written statement, LDA/defendant No.10 acknowledged the filing of transfer application by Muhammad Bilal/defendant No. 9/respondent No.2 in favour of the predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor. Assistant Director LDA appeared as DW-1 and conceded in cross-examination that predecessor of the defendants Nos. 1 to 8/ petitioner namely Abdul Shakoor also submitted set of documents for transfer of plot on 08.10.2011 which includes affidavits of Abdul Shakoor and Muhammad Bilal and same are available in the record of LDA.

Now the onus to prove issue No.3 about the valid execution of agreement to sell dated 25.01.2011/Ex.P-2 lies on the plaintiff/ respondent No.1 which was allegedly executed by the predecessor in interest of defendants Nos. 1 to 8/petitioners in favour of plaintiff/ respondent. There is no denial of the fact that the predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor received an amount of Rs.4,95,000/- through cheque No. 723191 which was duly encashed. Although, defendant No.1/petitioner No.1 conceded in cross-examination that he read the bank statement of his late father but has not specifically denied the receipt of amount through cheque by his father in cross-examination as DW-2 and the plaintiff/respondent exhibited his Bank statement/Ex.P-3 to prove that an amount of 4,95,000/- was withdrawn from his account through cheque No. 723191. The plaintiff/respondent No.1 himself appeared as PW-1 and produced two attesting witnesses namely Rana Zahid Hussain and Fiaz Bajwa as PW-2 and PW-3 to prove the execution and contents of agreement to sell as well as payment of an amount of Rs.5000/- in cash and Rs. 4,95,000/- through cheque No. 723191. The plaintiff/respondent No.1 also produced Manager of Bank as PW-6 and after checking/examining the bank record, he deposed about the clearance of cheque No. 723191 in favour of predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor. The plaintiff/ respondent No.1 also exhibited the receipt of balance sale consideration of Rs.850000/- as Ex.P-1 and also produced the witnesses of receipt namely Faisal Sadique and Manzoor Hussain as PW-4 and PW-5 to prove the execution and contents of receipt as well as payment of balance sale consideration of an amount Rs. Rs.8,50,000/-. By producing two attesting witnesses of agreement to sell dated 25.01.2011/Ex.P-2 along with the Bank Manager and two attesting witnesses of receipt of balance sale consideration/ Ex.P-1, both the documents are proved by the plaintiff/petitioner in accordance with the requirements of Article 79 of the Qanun-e-Shahadat Order, 1984.

After successfully proving the Ex-P-1 and Ex.P-2, the onus shifts on the defendants Nos. 1 to 8/petitioners to negate the claim of plaintiff/respondent No.1 but only the defendant No.1/petitioner No.1 appeared as DW-2 and no one else appeared on behalf of defendants Nos. 1 to 8/petitioners in support of the stance of defendants Nos. 1 to 8/petitioners.

In admitted agreement to sell dated 20.11.2008 executed by the Muhammad Bilal/defendants No. 9/respondent No.2 in favour of the predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor, the executant namely Muhammad Bilal specifically allowed Abdul Shakoor to execute another agreement to sell with someone else on the basis of agreement to sell dated 20.11.2008 and to receive earnest money. Relevant portion of the said agreement is reproduced hereunder:-

The predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor acted in accordance with stipulated terms and conditions of 1st agreement to sell dated 20.11.2008 by executing the 2nd agreement to sell dated 25.01.2011/Ex.P-2 in favour of plaintiff/respondent and the predecessor in interest of defendants Nos. 1 to 8/petitioners namely Abdul Shakoor was legally authorized to execute the 2nd agreement to sell in favour of plaintiff/respondent and after executing the 2nd agreement to sell voluntarily by late Abdul Shakoor, his successors in interest/defendants No. 1 to 8/petitioners cannot wriggle out of the commitment of late Abdul Shakoor as argued by the learned counsel for the petitioners or pleaded in Para VI of the grounds of instant civil revision. In this regard guidance is sought from the following reported judgments:-

(i) Muhammad Jalil and 4 others v. Muhammad Sami and 8 others (PLD 2007 Lahore 467)

"the second party, , had specifically been granted authority to enter into an agreement with a third party without the intervention of the original owners. The said clause in effect amounted to the purchaser being an authorized attorney of the original owners, capable of executing agreements as of right, in favour of third parties."

(ii) Mst. Jaiwanti Bai v. Messrs Amir Corporation and others (PLD 2021 Supreme Court 434)

"22. An assignment, in cases relating to immovable property, takes place when one party to an existing contract (as in this instant case the under the agreement to sell) conveys all the obligations, rights and interest under the agreement to another person."

(iii) Nisar Ahmed Afzal v. Muhammad Taj and 7 others (2013 SCMR 146)

2025 Y L R 263

[Lahore]

Before Muhammad Sajid Mehmood Sethi, J

Mst. Farhat Naseem---Petitioner

Versus

District Petrol Pump Committee through Chairman and another ---Respondents

Writ Petition No. 51687 of 2022, decided on 4th October, 2022.

(a) Petroleum Rules, 1937---

----R.115(3)---General Clauses Act (X of 1897), S.21---Public functionaries---Speaking order---Grant of license for installation of retail outlet/petrol pump---Petitioner after obtaining requisite NOCs from Government Departments sought change of Oil Marketing Company---Respondent-authority while passing the impugned order denied the request of the petitioner with the requirement of obtaining fresh NOCs---Validity---Respondent-authority while passing the order had not referred to any rules whatsoever and straightway directed to furnish fresh report/NOCs without giving any valid lawful reasons---Impugned order did not fulfill the requirements of a speaking order within the contemplation of S.24-A of the General Clauses Act, 1897, which binds the public functionaries to dilate upon all aspects of the matters presented before them, while determining rights of the parties and decide the same after application of mind, assigning cogent reasons and pass speaking orders---Constitutional petition was allowed, in circumstances with a direction to respondent-authority to decide the matter strictly in accordance with law and rules through a speaking order.

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

----S.21---Public functionaries---Speaking order---Scope---Public functionaries are bound to dilate upon all aspects of the matters presented before them, while determining rights of the parties, and decide the same after application of mind, assigning cogent reasons and passing speaking orders.

Sheikh Muhammad Umar for the Petitioner.

Barrister Ameer Abbas Ali Khan, Additional Advocate General along with M. Afzal Naveed, Law Officer DC Office Faisalabad for Respondents.

Order

Muhammad Sajid Mehmood Sethi, J.---Through instant petition, petitioner has challenged order dated 30.11.2021, passed by respondent No.2/Deputy Commissioner, Faisalabad, whereby petitioner's request for change of Oil Marketing Company from M/s Askar Oil Company Pvt. Limited to M/s Gas and Oil Pakistan Pvt. Limited for the purpose of installation of retail outlet/Petrol Pump, was not acceded to rather fresh report/NOCs were sought.

1. Brief facts of the case are that petitioner being owner of the land fully detailed in Para No.1-A of instant petition, approached the Oil Marketing Company ("OMC") namely Askar Oil Company Pvt. Limited for installation of retail outlet/Petrol Pump after obtaining NOCs from 14 government departments with regard to the site of the Petrol Pump. However, during the course of proceedings it surfaced that Askar Oil Company Pvt. Limited is not entitled to set up any retail outlet and matter of its regularization is subjudice before Hon'ble Islamabad High Court, Islamabad. Petitioner approached another OMC namely M/s Gas and Oil Pakistan Limited for the said purpose and in this regard the lease deed was also registered before Sub-Registrar City Faisalabad, Meanwhile, M/s Gas and Oil Pakistan, Limited requested respondent-authority for change of OMC from Askar Oil Services (Pvt.) Limited to M/s Gas and Oil Pakistan Limited, however, request was not acceded to rather fresh report/NOCs were sought vide order dated 30.11.2021, hence instant petition.

2. It is contended by learned counsel for petitioner that despite the fact that petitioner has obtained the requisite NOCs from the concerned quarters, she is being asked to obtain fresh NOCs without any legal justification. In this regard he has referred to Petroleum Rules, 1937 and read out Rule 115 (3) of the same which is reproduced as under:

"115. Grant of licence.-(1) Licences for importation, transportation and storage may be granted by the licensing authorities set forth in Schedule-I in the forms, for the purpose, and on payment of the fees specified therein.

(2)....

(3). Where the licensing authority is the Chief Inspector or an Inspector of Explosive and applicant for a new licence may apply to the District Authority, for a certificate to the effect that there is no objection to the applicant receiving a licence for the site proposed and the District Authority shall, if he sees no objection, grant such certificate to the applicant who may forward it to the Chief Inspector or an Inspector of Explosives with his application in Form-D"

When confronted, learned Law Officer could not rebut the fact that relevant rules have not been kept in view while passing the impugned order.

1. For facility of reference, operative part of impugned order is reproduced as under:

"Enclosed please find a copy of this office letter No.6(25)/ DOC/ SG/2015/11617-30, dated 27.10.2015 on the subject noted above for necessary action.

1. The case was placed before the District Petrol Pump/CNG Committee in its meeting dated 12.11.2021 wherein the Committee observed that reports/ NOCs presented are relates to year 2015, 2016. Accordingly after detail discussion, the D.P.P.C. decided to re-examine the reports/NOCs by all concerned departments afresh and also clearance of/payment of condonation fee. The detail of NOCs/report issued from your respective department is as under:

| | | | | --- | --- | --- | | Sr. No. | Name of Department | Report furnished Vide No. & Dated | | 1. | Managing Director (Distribution). SNGPL, Faisalabad. | No.AOS/NOC, dated 11.12.2015 | | 2. | General Manager, SNGPL,(OPS), Faisalabad. | No.OPS/103/F/523, dated 01.12.2015 | | 3. | General Manager, PTCL, Faisalabad. | No.FTR/Coord/ Petrol Pump/NOC-2015/73 dated 26.11.20215 | | 4. | Chief Executive Officer, FESCO, Faisalabad | No.24241/DMO/MO-20 B (NOC), dated 22.02.2016 | | 5. | Superintending Engineer, Lower Chenab Canal West Circle, Faisalabad. | No.375/103-R. dated 19.02.2016. | | 6. | Director (TP-II), FDA, Faisalabad | No.266/E&DC/FDA-15, dated 25.02.2016 | | 7. | District Officer Roads, Highway Division, Faisalabad | No.1170/C, dated 03.03.2016 | | 8. | Chief Traffic Officer, Faisalabad | No.5656, dated 01.12.2015 | | 9. | Assistant Commissioner (City), Faisalabad | No.52-AC.City/HC, dated 21.01.2016 | | 10. | District Officer (Civil Defence), Faisalabad | No.C-36/DOCDF/2015/2722 dated 14.11.2015 | | 11. | Town Municipal Officer, TMA - Lyallpur Town, Faisalabad | No.TO(r)LT.566. dated 30.11.2015 | | 12. | District Officer Forests, Faisalabad | No.233/LC, dated 11.11.2015 | | 13. | Municipal Officer (Planning), Municipal Corporation, Faislabad. | No.MOP/1155/MCF, dated 27.10.2018 |

2025 Y L R 271

[Lahore]

Before Jawad Hassan, J

Imran Ahmad Khan Niazi---Petitioner

Versus

Election Commission of Pakistan and others---Respondents

Writ Petition No. 332 of 2023, decided on 5th January, 2023.

Constitution of Pakistan---

---Arts.4, 5, 62(f), 218(3), 219(a) & 219(b)---Elections Act (XXXIII of 2017), Ss.8(c) & 9---Civil Procedure Code (V of 1908), O.XXVII-A---Jurisdiction of High Court to interfere with the decision of the Election Commission of Pakistan (ECP)---Scope---Issuance of notice and passing of declaration by the ECP upon a reference against the petitioner---Legality--Petitioner raised a constitutional point that whether the ECP could pass any declaration, which was not mentioned under Art.218(3) of the Constitution, and only words used therein are to "conduct" and "organize" election, which is further specified in Art.219(a)(b)---Contention of the petitioner was that prior to deciding the validity of notice issued and order passed by the ECP, it was necessary to frame and formulate constitutional moot points---Validity---Present case related to interpretation of Articles of the Constitution and certain provisions of the Elections Act, 2017, involving infringement of fundamental rights of the petitioner as per Arts.10-A, 4 & 5 of the Constitution---High Court framed/ formulated certain constitutional moot points and after issuing notices to the respondents separate notices were also issued to the Attorney General for Pakistan and Advocate General Punjab in terms of Order XXVII-A of C.P.C.---High Court passed injunctive order to the effect that no adverse action shall be taken against the petitioner in view of dicta laid down by Supreme Court of Pakistan that the court can interfere in the ECP's decisions when these involve the exercise of illegal, or mala fide, or manifestly arbitrary or unjustifiable jurisdiction---High Court admitted the constitutional petition and issued notices, in circumstances.

Ali Asjad Malhi v. Ms. Syeda Nosheen Iftikhar and others PLD 2023 SC 1; Imran Ahmad Khan Niazi v. Federation of Pakistan and others 2023 CLC 239; Election Commission of Pakistan through its Secretary, Islamabad v. Imran Ahmed Khan Niazi and others Constitution Petition No. 30 of 2022; Muhammad Saleem Baig Chairman Pakistan Electronic Media Regulatory Authority (PEMRA), Islamabad v. Messrs Labbaik (Pvt.) Limited through Executive Admin Bol TV Quetta and others PLD 2023 SC 27 and Federation of Pakistan through Secretary, Ministry of Energy (Power Division), Islamabad and others v. Shafiq-ul-Hassan and others 2020 SCMR 2119 rel.

Ejaz Ahmed Sandhu v. Election Commission of Pakistan 2018 SCMR 1367; Muhammad Faisal Vawd v. Election Commission of Pakistan through its Secretary and others 2020 SCP 358; Tariq Iqbal v. The Election Commission of Pakistan through its Secretary and others PLD 2022 Lah. 607; Saima Ashiq v. Election Commission of Pakistan and others 2022 MLD 2018 and Muhammad Umais v. Rawalpindi Cantonment Board and others PLD 2022 Lah. 148 ref.

Senator Barrister Ali Zafar, Advocate Supreme Court with Mohammad Azhar Siddique, Advocate Supreme Court along with Munir Ahmed, Mian Shakir Ismail, Barrister Nudrat B. Majeed, Salma Riaz, Amna Liaqat, Arshad Ali Azhar, Asfand Yar Khan Lodhi, Sikandar Sultan Ch. and Abdullah Arif for the Petitioner.

Nasar Ahmad, Additional Attorney General and Nasir Javed Ghuman, Deputy Attorney General on Court's Call.

Rai Shahid Saleem Khan, Additional Advocate General with Syed Abul Ali Jafri, Assistant Advocate General.

Imran Arif Ranjha, Legal Advisor and Hafiz Adeel Ashraf, Law Officer for ECP on Court's Call.

Dr. Asim Murtaza Cheema, Civil Judge/Research Officer, Lahore High Court, Lahore.

Order

Jawad Hassan, J.---Through this petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner has challenged the vires of impugned notice dated 07.12.2022 the ("notice") issued in pursuance of order dated 21.10.2022 the ("order") by the Election Commission of Pakistan (the "ECP").

1. At the start of hearing the case, learned legal advisor for the Respondent-ECP objected that the Petitioner has not made certain Respondents as party to this petition (who filed reference against the Petitioner). However, with permission of the Court, learned counsel for the Petitioner has incorporated Federation of Pakistan through Secretary Law, Islamabad, Barrister Mohsin Nawaz Ranjha MNA, NA-89, Agha Hassan Baloch, MNA, NA-266, Salah Uddin Ayubi, MNA, NA-283, Gohar Ali Khan, MNA, NA-103, Syed Rafi Ullah Agha, MNA, NA-236, Saad Waseem Sheikh, MNA, NA-137 and Speaker National Assembly, National Assembly Secretariat, Islamabad as the Respondents Nos.2 to 9 in this petition.

2. Senator Barrister Ali Zafar, ASC states that the Petitioner is basically aggrieved by the assumption of jurisdiction by the "ECP" through issuance of the "order" and the "notice" on the complaint of Respondents Nos.3 to 8 and seeks interpretation of Articles 218(3) and 219 read with Articles 4 and 5 of the "Constitution" and Sections 8(c) and 9 of the Election Act, 2017 (the "Act") in the light of Article 62(f) of the "Constitution". He pointed out that a reference against the Petitioner was submitted by the Respondents Nos.3 to 8 before the Respondent No.9 who sent the same on 02.08.2022 (Annex-B, Page-22 of petition) to the "ECP" to decide the matter through the "order" resulting into the "notice". Senator Ali Zafar, ASC maintains that the pivotal point involved in this case is whether the "ECP" can pass any declaration which is not mentioned under Article 218(3) of the "Constitution" and only words used therein is to "conduct" and "organize" election which is further specified in Article 219(a)(b) of the "Constitution". He adds that the "Act" was enacted in year 2017 and the "ECP", in terms of Sections 8 and 9 of the "Act", has only power to ensure fair election a but power of declaration has nowhere been provided.

3. When confronted to maintainability of this petition in the light of judgment passed by the Hon'ble Supreme Court of Pakistan reported in "Ali Asjad Malhi v. Ms. Syeda Nosheen Iftikhar and others" (PLD 2023 SC 1) whereby criteria for interference in the matters of ECP was made by referring the earlier judgment "Ejaz Ahmed Sandhu v. Election Commission of Pakistan (2018 SCMR 1367) observed that

"5. The Election Commission is a constitutional body and unless it is shown that the jurisdiction and discretion exercised by it is illegal, mala fide, manifestly arbitrary or unjustifiable its working and decisions should not be interfered with"

It becomes plain from the dicta cited above that only limited grounds exist for interfering with ECP's decisions, namely, when these involve the exercise of illegal, or mala fide, or manifestly arbitrary or unjustifiable jurisdiction and discretion by the ECP. The rationale for this is obvious: the ECP is a constitutional body which is empowered by Article 218(3) of the Constitution to ensure that elections are conducted 'honestly, justly, fairly and in accordance with law, and that corrupt practices are guarded against'.

1. In reply, Senator Barrister Ali Zafar, ASC has relied on the judgment of Hon'ble Supreme Court of Pakistan passed in Civil Petition No.397 of 2022 dated 25.11.2022 (2020 SCP 358) titled "Muhammad Faisal Vawda v. Election Commission of Pakistan through its Secretary and others" wherein it has been observed "that "ECP" has no jurisdiction under Article 218(3) of the Constitution read with Section 8(c) or 9(1) of the Election Act 2017 to inquire into and decide upon the matter of pre-election qualification and disqualification of a returned candidate. Therefore, the decision of the ECP was without jurisdiction". He pointed out that this view has already been given by this Court in "Tariq Iqbal v. The Election Commission Of Pakistan through its Secretary and others" (PLD 2022 Lahore 607) and "Saima Ashiq v. Election Commission of Pakistan and others" (2022 MLD 2018). Senator Barrister Ali Zafar, ASC states that in view of judgments referred to above, this petition is maintainable.

2. Points raised need consideration.

3. Learned counsel for the Respondent-ECP objected to maintainability of the petition on the touchstone of Articles 62(3) and 222 of the "Constitution" coupled with pendency of the "order" challenged by the Petitioner before the learned Islamabad High Court, Islamabad.

4. In order to proceed further, this Court has examined the judgment whereby the role of the "ECP" was discussed in W.P.No.2604 of 2022 dated 21.09.2022, titled "Imran Ahmad Khan Niazi v. Federation of Pakistan etc" (2023 CLC 239) by granting interim relief and when this order was challenged before the Hon'ble Supreme Court of Pakistan, the Apex Court in Constitution Petition No.30 of 2022 dated 06.12.2022 titled "Election Commission of Pakistan through its Secretary, Islamabad v. Imran Ahmed Khan Niazi and others", observed in paragraph No.2 which reads as:

"The learned counsel has pointed out that though the order of the Lahore High Court dated 21.09.2022, the petitioner ECP has additionally been prevented from taking adverse action against the respondents. That point is insignificant at the present stage. Any adverse action by the ECP can only follow once it has passed a final order under Section 10 of the Act against the respondents. That stage is yet to arrive".

1. It is noted that the Hon'ble Supreme Court of Pakistan in aforesaid order has observed that all the Courts can decide the election petition and this has further been strengthened in "Muhammad Saleem Baig, Chairman Pakistan Electronic Media Regulatory Authority (Pemra), Islamabad Versus Messrs Labbaik (Pvt..) Limited through Executive Admin Bol TV, Quetta and others" (PLD 2023 SC 27) by holding that "the petitioner must face the litigation before the courts of competent jurisdiction".

2. Learned counsel for the Petitioner put much emphasis that before proceeding further, it is necessary to frame and formulate constitutional moot points and for this purpose, he has referred to judgment of this Court cited in "Muhammad Umais v. Rawalpindi Cantonment Board and others" (PLD 2022 Lahore 148) wherein the Court, at paragraph No.12, Page 159, has held that before deciding a question of law, it has to formulate constitutional moot points if writ is admitted for regular hearing. Relevant part of the same is reproduced hereunder:

"12. After framing of issues on constitutional moot points, this Court has narrowed down the law points and determined the fundamental rights of the Petitioner but while rendering judgment, the constitutional petition filed under Article 199 of the Constitution, if the writ petition is admitted for regular hearing, and after perusing the record from the report and parawise comments, the Court has to render a decision strictly as per Articles 199 and 201 of the Constitution. The decision or order could be a judgment or an order passed on the constitutional petition filed under Article 199 of the Constitution but those decisions are made under the established law of precedent under Article 201 of the Constitution, to have a binding effect and its principles have to be followed later. Article 201 of the Constitution states that a decision of High Court if (i) it decides a question of law or is (ii) based upon or (iii) enunciates a principle of law be binding on subordinate Courts. In this case, writ petition was filed on 21.04.2021 and after hearing the parties on 28.04.2021, the Court while admitting the writ petition directed the parties to file written statement. Thereafter, written statement was filed by the Respondents and perused by this Court, hence, before proceedings further, the Court framed moot points in order to render a judgment under Article 201 of the Constitution. It is a settled norm that the decision on a question of law can only be made if question of law is framed and highlighted from the pleadings. In this case the Court on 02.06.2021 framed the constitutional moot points, mentioned above, in order to render a judgment, while keeping in mind the principles of law already established by the Superior Court, relied by both the counsel for the parties, then passed its decision on it to be called a decision or a judgment. Accordingly, the judgment then passed will consists of ratio decidendi, facts, arguments of the parties, moot points involved, and stare decisis and obiter dicta. The Constitution clearly empowers the Courts in Pakistan to render on these parameters regarding the question of law or based on question enunciated a principle of law. As every judgment of the Supreme Court is binding on all Courts under Article 189 of the Constitution, the same words are used in Article 201 of the Constitution but subject to Article 189 to follow its principle for consistency".

1. Admit. Notice to the Respondents for 11.01.2023. Learned counsel for the Respondent-ECP accepts notice on behalf of Respondent No.1. Whereas, learned law officers accepts notice on behalf of newly incorporated Respondent No.2.

2. Since the case relates to interpretation of Articles of the "Constitution" and certain provisions of the "Act" involving infringement of fundamental rights of the Petitioner as per Articles 10-A, 4 and 5 of the "Constitution" therefore, following constitutional moot points are hereby framed.

i. Whether the "ECP" can pass any declaration in the light of Article 218 of the Constitution and the judgments mentioned above, by examining the power of the "ECP" in terms of Section 8(c) and 9 of the Act?

ii. Whether the word "declaration" falls under the wording "conduct" and "organize" as used under Article 218(3) and 219 of the "Constitution"?

iii. Whether power of declaration has specifically been mentioned in the "Act" and the Rules framed thereunder in the light of judgments of Hon'ble Supreme Court of Pakistan?

1. A separate notice be also issued to the learned Attorney General for Pakistan as well as learned Advocate General Punjab in terms of Order XXVII-A of the Code of Civil Procedure (V of 1908).

2025 Y L R 281

[Lahore]

Before Asjad Javaid Ghural, J

Dr. Iqrar Ahmad Khan and others---Petitioners

Versus

Director General, Anti-Corruption Establishment and others---Respondents

Writ Petition No. 9024 of 2024, decided on 9th July, 2024.

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

----S.154---Quashing of FIR---Scope---Functions of Investigation Agency and Judiciary are complementary and not overlapping and the combination of individual liberty with due observance of law and order can only be achieved if both the organs are allowed to function independently---However, such principle in any way cannot be construed an absolute bar on the power of the Court in quashing of FIR in cases where court is satisfied that investigation is launched with mala fide intention and without jurisdiction.

Shahnaz Begum v. Hon'ble Judge of the High Court of Sindh and Balochistan PLD 1971 SC 677; Anwar Ahmad Khan v. The State 1996 SCMR 24; Raja Rustam Ali Khan v. Muhammad Hanif 1997 SCMR 2008; Muhammad Irshad Khan v. Chairman, National Accountability Bureau and 2 others 2007 PCr.LJ 1957; The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan PLD 1974 SC 151 and F.I.A through Director General, FIA and others v. Syed Hamid Ali Shah and others PLD 2023 SC 265 rel.

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

----Ss. 409, 420, 468 & 471---Prevention of Corruption Act (II of 1947), S. 5---National Accountability Ordinance (XVIII of 1999), S.18(d)---First Information Report, quashing of---Petitioner was Vice-Chancellor and after the completion of his service tenure, his successor got lodged a criminal case against him---Allegation against petitioner was that he made irregular appointments without advertisement in the newspapers---Validity---Admitted fact that the University was an autonomous body and its affairs were governed under the University of Agriculture, Faisalabad Act, 1973 and S.15 (4) of the Act dealt with the powers of Vice-Chancellor---Record showed that during two consecutive investigations, one conducted by the JIT constituted by the order of Special Judge, Anti-Corruption, it came on surface that out of the list of 608 alleged irregular appointments, there was double entry of nine employees, whereas, out of the remaining 599 employees, 126 employees were appointed by the former Vice-Chancellors---Though certain appointments were made by the Vice Chancellor on temporary/adhoc basis, while exercising his powers conferred under the Act but he did not make even a single appointment on regular basis without the advertisement in the press or deviating from the proper procedure during his tenures---During investigation, it came on surface that it was long standing policy of the University approved by the Syndicate that the adhoc arrangements were renewable after six months for another six months---However, investigating teams could not find even a single instance where the Vice-Chancellor had made regular appointment without the approval of the Syndicate, as such there was no room left to assume that the Vice-Chancellor while making any appointments had derogated any law or misused his authority---Impugned FIR was lodged pursuant to the findings of Probe Committee of the University, which was constituted by the then Vice-Chancellor, whose eligibility to hold the post was challenged by the petitioner before the High Court and said Committee within eleven days of its constitution held the Vice-Chancellor guilty without even affording him a single opportunity to explain his position---Had it been done so the material presented by the Vice-Chancellor to the Investigating Officer/ JIT showed that all what had been done in the process of appointments of the employees was within the parameters of law, then there might be no reason for involving the Vice-Chancellor in the instant criminal case on such a fake charge---Next allegation set out in the FIR was that petitioner received honorarium of Rs. 9.12 million without the approval of the Chancellor---Admittedly, the budget of the University was sanctioned by the Syndicate and Senate which was headed by the Chancellor and undisputedly the budget for the period in which the Vice-Chancellor drew honorarium was duly sanctioned by the Syndicate and Senate, as such it could not be said that the honorarium was drawn by him without the sanction of the Chancellor---Moreover, during investigation it came on surface that it was a long standing practice in the University that the Vice-Chancellors along with others drew honorarium without the sanction of the Chancellor---JIT pointed out names of former Vice-Chancellors, who in their respective tenures received honorarium, therefore, singling out the petitioner in such charge was not only discriminatory but also showed mala fide and ulterior motive on the part of the authority, which launched probe in that regard---Another allegation was that the Vice-Chancellor drew double salary at the same time as Vice-Chancellor and Project Director of "U.S Pakistan, Center for Advanced Studies in Agriculture and Food Security, University of Agriculture, Faisalabad" (CAS)---During investigation, Treasurer of the University appeared before the Investigating Teams and in categorical terms denied that the Vice-Chancellor ever received salaries of two posts at the same time---After consulting the record, Investigating Teams opined that the Vice-Chancellor only drew single salary for the post of Vice-Chancellor and till the holding of temporary charge of said post, he did not secure even a single penny as COS---Moreso, despite being on merit the then Chief Minister denied appointment of the petitioner as Vice-Chancellor, inter alia on the ground of lack of financial and administrative control during his previous tenures, which was challenged by the petitioner before the Court and finally the matter went to the Supreme Court, which brushed aside such findings---If the Vice-Chancellor had committed any financial embezzlement or misuse of authority in his previous tenures, the representative of the Government i.e. Secretary Agriculture, who had the first hand knowledge, was not supposed to award him ten out of ten marks in the "Administrative and Financial Management"---Besides the above, it was evident from the record that regarding the same allegations the matter was thoroughly inquired by the National Accountability Bureau (NAB), who recommended closure of the inquiry---As per S.18(d) of National Accountability Ordinance, 1999, National Accountability Bureau Authorities had exclusive jurisdiction to inquire into and investigate any offence which had been committed under the National Accountability Ordinance, 1999, and once it assumed jurisdiction, no other agency was empowered to investigate the same subject matter, unless directed by the Chairman National Accountability Bureau or an officer authorized by him in that regard---Impugned FIR was registered against the petitioner, under Ss.409, 420,468 & 471, P.P.C, read with S.5(2) Prevention of Corruption Act, 1947---Sections 9(ix) & 9(xii) covered the offence under Ss.420 & 409, P.P.C respectively---Similarly, the Schedule attached with the National Accountability Ordinance, 1999, covered the offences committed under Ss.468 & 471, P.P.C, whereas, S.5(2) of Prevention of Corruption Act, 1947, was akin to the offences under S.9(a) of the National Accountability Ordinance, 1999, therefore, in any eventuality it could not be said that the Anti-Corruption Establishment had conducted investigation other than the offences upon which the National Accountability Bureau had already taken cognizance---In the above circumstances, launching of investigation by the Anti-Corruption Establishment regarding the same subject matter, which had already been adjudicated upon and closed by the National Accountability Bureau, was in clear contravention of S.18(d) of the Ordinance ibid and could not be approved by the Court---Circumstances established that the entire proceedings against the petitioner were orchestrated by respondent No.5 with mala fide intention and ulterior motive, whose eligibility to hold the office of Vice-Chancellor being lower in merit, was challenged by the petitioner in the Court---Apparently, an attempt was made to coerce the Vice-Chancellor to lay his hand off for contesting his legitimate right for the post of Vice-Chancellor on merit---Petitioner had been given clean chit by the Anti-Corruption Establishment in two consecutive investigations and cancellation report had been prepared which was duly forwarded by the Prosecution Department, which meant that there was no substance in the allegations against the petitioners---Constitutional petition was allowed, in circumstances, as a consequence thereof impugned FIR in respect of offence under Ss.409,468,471 & 420, P.P.C, read with S.5(2) of Prevention of Corruption Act, 1947 was quashed.

Mirza Muhammad Tufail v. District Returning Officer and others PLD 2007 SC 16 and Karamat Hussain and others v. Muhammad Zaman and others PLD 1987 SC 139 rel.

Abid Saqi for Petitioners.

Muhammad Ahsan Bhoon and Muhammad Imran Sulehria for Respondents Nos. 5 and 6.

Shan Saeed Ghumman and Sardar Haider Naeem for Respondent No. 4. (University of Agricultural, Faisalabad).

Rana Umair Abrar Khan, A.A.G for the State.

Order

Asjad Javaid Ghural, J.---Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 the petitioners Dr. Iqrar Khan and Ch. Muhammad Hussain have sought quashing of impugned FIR No.41/2020, in respect of offence under Sections 409,468,471 and 420, P.P.C. read with Section 5(2) of Prevention of Corruption Act, 1947 (PCA), registered at P.S. ACE, Region Faisalabad.

1. Learned counsel for the petitioners submits that the impugned FIR is a result of mala fide and ulterior motives; that petitioner No.1 served as Vice-Chancellor of the University of Agriculture, Faisalabad (University) for two terms consecutively; that during his term University went through an exceptional growth phase; that enrollments of students went up from 8000 to 25000, the recurring budget rose from rupees 700 million to 7 billion, research fund grew from rupees 300 million to 3000 million and the University ranking went up in the top 100 QS World subject category, a distinction that no other University in the country has achieved yet; that after completion of his two tenures, the University has advertised the post of Vice-Chancellor again and the petitioner also applied for the said post; that respondent No.5 was also contesting candidate for the said post; that Government of the Punjab constituted a Search Committee to consider suitability of the candidates, and the petitioner stood at Sr.No.1 of the merit list; that the Chief Minister in derogation of merit, appointed respondent No.5, who was lower in merit as Vice-Chancellor of the University; that the petitioner challenged the appointment of respondent No.5 before this Court by way of Writ Petition No.34743/2019; that due to that grudge respondent No.5 while holding the post of Vice-Chancellor, in order to tarnish the image of the petitioner and influence upon the judicial proceedings, constituted an unlawful probe committee under the convenorship of respondent No.6 vide notification dated 03.06.2019; that the said committee without issuing any notice to the petitioners and affording them an opportunity to explain their position by preparing forged and fictitious record, held the petitioners guilty of making adhoc/contract/ regular appointments, abuse of official powers and drawing of honorarium without the permission of competent authority/Chancellor within eleven days of the constitution of the committee, that on the basis of findings of probe committee initially respondent No.8 filed a complaint before Anti-Corruption Establishment, (ACE), who subsequently withdrew the same by filing an affidavit; that thereafter respondent No.9, who has nothing to do with the internal affairs of the University was managed by respondent No.5, who again filed application before the ACE on the similar charges; that the inquiry remained pending for a considerable period of time and in the meanwhile, this Court vide judgment dated 17.01.2020 passed in aforesaid writ petition declared the appointment of respondent No.5 for the post of Vice-Chancellor as illegal and unlawful and direction was issued to the competent authority to notify the petitioner as Vice-Chancellor; that respondent No.5 challenged the order of learned Single Judge in Chamber in the Intra Court Appeal, which was accepted by the learned Division Bench vide judgment dated 05.03.2020 and respondent No.5 was restored as Vice-Chancellor; that being aggrieved the petitioner challenged the vires of judgment of the learned Division Bench before the Apex Court, by filing C.Ps. Nos.916-L and 1768 of 2020; that the Apex Court while granting leave to appeal suspended the operation of the orders of the learned Division Bench vide order dated 07.09.2020; that on smelling success of the petitioner, respondent No.5 while using his influence just after nineteen days of leave granting order of the Apex Court got lodged the impugned FIR; that sole purpose of lodging of impugned FIR was just to influence the judicial proceedings before the Apex Court and creating hurdle in the way of the petitioner for the post of Vice-Chancellor; that prior to lodging of FIR, ACE coerced the petitioner to withdraw the CPs from the Apex Court; that regarding the same allegations the matter has already been thoroughly investigated by the NAB authorities, who vide letter dated 28.08.2018 recommended closure of investigation; that launching of investigation on the same allegations by the Anti-Corruption Establishment is in clear contravention of Section 18(d) of the National Accountability Ordinance, 1999; that the impugned FIR tantamounts to double jeopardy, which is barred under Article 13(a) of the Constitution; that even otherwise during two consecutive investigations, one conducted by the JIT, constituted by the order of learned Special Judge, Anti-Corruption, Faisalabad, the petitioners have been found innocent and the cancellation report, duly approved by the Director General, ACE and forwarded by the prosecution department has been submitted before the Trial Court; that despite elapse of almost eleven months the Trial Court has not decided the fate of said cancellation report; that after giving clean chit to the petitioners during investigation, there is no chance of their conviction, as such impugned FIR is liable to be quashed.

2. On the contrary, learned counsel for respondents Nos.5 and 6 submitted that impugned FIR was lodged against the petitioners, pursuant to the recommendations of the Probe Committee; that sufficient incriminating material in the shape of documentary evidence is available against the petitioners; that the allegations mentioned in the impugned FIR were neither investigated nor were the same subject matter of the investigation conducted by the NAB, as such there is no bar for the ACE to investigate into the allegations; that the cancellation report has already been submitted in the Trial Court and fixed for hearing, as such the petitioners may be advised to follow said proceedings. In the end, a prayer has been made for dismissal of instant writ petition.

3. Learned Assistant Advocate General, while conceding the fact that the petitioners have been given clean chit by the ACE in two consecutive investigations has submitted that since the cancellation report is pending before the Trial Court, the right course for the petitioners was to approach the said court for early decision of the cancellation report and then if aggrieved avail alternate remedy of filing application before the said Court for their pre-mature acquittal.

4. I have heard the arguments advanced by the learned counsel for the petitioners, learned Assistant Advocate General assisted by learned counsel for respondents Nos.5 and 6 and gone through the record.

5. By way of this petition the petitioners have invoked extraordinary Constitutional jurisdiction of this Court for quashing of aforementioned impugned FIR. Ordinarily, time and again this Court has shown reluctance in interfering in the ongoing investigating process on the well cherished principle that the functions of Investigating Agency and judiciary are complementary and not overlapping and the combination of individual liberty with due observance of law and order can only be achieved if both the organs are allowed to function independently. However, this principle in any way cannot be construed an absolute bar on the power of this Court in quashing of FIR in cases where the Court is satisfied that investigation is launched with mala fide intention and without jurisdiction. In case reported as "Shahnaz Begum v. Hon'ble Judge of the High Court of Sindh and Balochistan" (PLD 1971 SC 677), wherein it has been laid down as under:-

"If an investigation is launched mala fide or is clearly beyond the jurisdiction of the investigating agencies concerned then it may be possible for the action of the Investigating Agencies to be corrected by proper proceedings either under Article 98 of the Constitution of 1962 or under the provisions of section 491 of the Criminal Procedure Code, if the applicant is in the latter case in detention, but not by invoking the inherent power under section 561-A of the Criminal Procedure Code."

Similarly, in case reported as "Anwar Ahmad Khan v. The State (1996 SCMR 24)", it has been laid down as under:-

" It is well settled principle that where investigation is mala fide or without jurisdiction, the High Court in exercise of its Constitutional jurisdiction under Article 199 is competent to correct such proceedings and pass necessary order to ensure justice and fair play. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims".

In case reported as Raja Rustam Ali Khan v. Muhammad Hanif (1997 SCMR 2008), it has been observed as under:-

"It would, therefore, be seen that if an investigation is launched mala fide by the Investigating Agencies, the same is open to correction by invoking the constitutional jurisdiction of the High Court under Article 199 of the Constitution."

In case reported as "Muhammad Irshad Khan v. Chairman, National Accountability Bureau and 2 others (2007 PCr.LJ 1957) the learned Division Bench of Sindh High Court, observed as under:-

"Thus the consensus of the Honourable Supreme Court of Pakistan from the year 1971 and onward is that High Court has jurisdiction under Article 199 of the Constitution and competent to correct such proceedings and pass necessary orders to ensure justice and fairplay. The Investigating Authorities do not have the entire and total authority of running investigation according to their whims, therefore, if the investigation is launched malafidely or beyond the jurisdiction of investigating agency, then the same can be corrected and appropriate orders can be passed."

The question what is "mala fide" has been answered by the Apex Court in case reported as "The Federation of Pakistan through Secretary Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan" (PLD 1974 SC 151) in the following way:-

"Mala fides" literally means "in bad faith". Action taken in bad faith is usually taken maliciously in fact, that is to say, in which the person taking the action does so out of personal motives either to hurt the person against whom the action is taken or to benefit oneself. Action taken in colourable exercise of powers, that is to say, for collateral purposes not authorized by the law under which the action is taken or action taken in fraud of the law are also mala fide. It is necessary, therefore, for a person alleging that an action has been taken mala fide to show that the person responsible for taking the action has been motivated by any one of the considerations mentioned above."

Recently, in case reported as "F.I.A. through Director General, FIA and others v. Syed Hamid Ali Shah and others (PLD 2023 SC 265)", the Apex Court has observed as under:-

"Article 199(1)(a)(ii) of the Constitution empowers the High Courts to judicially review the acts done or proceedings taken by the persons performing functions in connection with the affairs of the Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect. The registration of an FIR and the doing of an investigation are the acts of officials of the police department (a provincial law enforcement agency) who perform functions in connection with the affairs of a Province and are thus amenable to the jurisdiction of the High Court under Article 199 (1)(a)(ii) of the Constitution. The High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make appropriate incidental or consequential order to effectuate its decision, such as quashing the FIR and investigation proceedings."

1. On the touchstone of above criteria, I have to determine the fate of instant case. From the contents of the impugned FIR, the allegations mentioned therein can be bifurcated in three parts. Firstly, petitioner No.1 (hereinafter shall be called as VC) made irregular appointments without advertisement in the press. Secondly, VC received honorarium of Rs.9.12 million without the approval of the Chancellor. Thirdly, VC draw double salary at a time as VC and as Project Director, USP, CAS, AFS.

2. It is very shocking to note that there was no allegation against petitioner No.2, former Registrar of the University, who undisputedly neither has any role in appointments of the employees in the University nor there was any allegation against him qua financial embezzlement or misuse of authority but despite this fact he was booked in this case. Apparently, at the time of lodging of impugned FIR, arms of the ACE were twisted by some unknown power, who without taking note of above aspect of the matter booked petitioner No.2 in the instant case.

3. Now coming to the case of VC. First of all, I would like to discuss the allegation against him qua making of irregular appointments without advertisement in the newspapers. It is an admitted fact that the University is an autonomous body and its affairs are governed under the University of Agriculture, Faisalabad Act, 1973. Section 15 (4) of the Act deals with the powers of Vice-Chancellor. Its clauses (i),(ii) and (viii) relevant for resolving the dispute reads as under:-

i. to create and fill temporary posts for a period not exceeding six months;

ii. to sanction all expenditure provided for in the approved budget and to re-appropriate funds within the same major head of expenditure.

iii. to appoint employees in National Pay Scales 1 to 16

Similarly, by way of Section 15(3) of the Act ibid certain emergency powers were also conferred upon the Vice-Chancellor which provides as under:-

15(3) "Subject to such conditions as may be prescribed, the Vice-Chancellor may, in an emergency, take an action which is not otherwise in the competence of the Vice-Chancellor but is in the competence of any other Authority".

15(3a) The Vice-Chancellor shall, within seven days of taking an action under sub- Section (3), submit a report of the action taken to the Pro-Chancellor and to the members of the Syndicate; and the Syndicate shall, within forty-five days of such an action of the Vice-Chancellor, pass such orders as the Syndicate deems appropriate".

It is thus manifestly clear that under the University Act the Vice-Chancellor is not only empowered to create and fill temporary posts not beyond the period of six months, sanction all expenditures but also appoint employee in National Pay Scale 1 to 16. Similarly, in emergency the law has empowered him to take action which is even not in his competence. During two consecutive investigations, one conducted by the JIT constituted by the order of learned Special Judge, Anti-Corruption, Faisalabad, it came on surface that out of the list of 608 alleged irregular appointments, there was double entry of nine employees, whereas, out of the rest 599 employees 126 employees were appointed by the former Vice-Chancellors. It further came on surface that though certain appointments were made by the VC on temporary/adhoc basis, while exercising his powers conferred under the Act but he did not made even a single appointment on regular basis without the advertisement in the press or deviating the proper procedure during his tenures.

A lot of emphasis was laid on the point that though the VC is empowered to make ad hoc appointments but only for a period of six months but he extended the period of various employees beyond the period of six months. During investigation, it came on surface that it was long standing policy of the University approved by the Syndicate that the Ad hoc arrangements are renewable after six months for another six months. However, Investigating Teams could not find even a single instance where the VC had made regular appointment without the approval of the Syndicate, as such there left no room to assume that the VC while making any appointments has derogated any law or misused his authority. It is a very unfortunate situation. Impugned FIR was lodged pursuant to the findings of Probe Committee of the University, who was constituted by the then Vice-Chancellor, whose eligibility to hold the post was challenged by the petitioner before this Court and said committee within eleven days of its constitution held the VC guilty without even affording him a single opportunity to explain his position. Had it been done so the material presented by the VC to the Investigating Officer/ JIT showing that all what has been done in the process of appointments of the employees was within the parameters of law, then there might be no reason for involving the VC in the instant criminal case on such a fake charge. The conduct of the probe committee headed by respondent No.6 lacks transparency and it seems that it played in the hand of incumbent Vice-Chancellor/ respondent No.5 and in order to please him recorded the findings which were contrary to the record. It is also important to note that neither any employee came on surface complaining that he obtained the job after giving money to the VC nor any contesting candidate lodged any complaint that his selection was not made despite falling on merits. In the absence of above, I am unable to understand how the offence under section 409, P.P.C. and Section 5(2) of PCA is attracted in the instant case. In case of FIA through D.G. FIA supra the Apex Court has observed as under:-

"The argument of the learned counsel for the petitioner is totally misconceived, that the authority conferred upon the accused officers, who granted the illegal upgradations, was a trust and by misusing that authority, they have committed the offence of criminal breach of trust punishable under section 409, P.P.C. and the offence of criminal misconduct punishable under section 5(2), P.C.A. No doubt, the powers of the public servants are like trust conferred upon them and they should exercise them fairly, honestly and in good faith as a trustee; but the entrustment of the power to upgrade his subordinate officials is not equivalent to the entrustment of property as mentioned in section 405, P.P.C. and its misuse, or use in violation of the relevant rules and regulations, does not constitute the cognizable offences punishable under section 409 P.P.C. and section 5(2), P.C.A."

From the above discussion, it is manifestly clear that the VC has not committed any criminal act for making appointments and apparently for this reason in two successive investigations, he was given clean chit.

1. Next allegation set out in the impugned FIR is that he received honorarium of Rs.9.12 million without the approval of the Chancellor. The case of the prosecution was that according to the terms and conditions of the appointment of VC only the Chancellor is vested with an authority to grant any perks and privilege to him, but he on its own draw the honorarium. I think the prosecution has intermingled term 'perks and privileges' with the 'Honorarium' which has entirely and distinct feature. The term 'Honorarium' has been explained by the Apex Court in case reported as "Mirza Muhammad Tufail v. District Returning Officer and others (PLD 2007 SC 16)" in the following manner:

"The honorarium has been defined in Corpus Juris Secundem Vol. 44 at page 325 as under:--

In common understanding, the word means a voluntary reward for that for which no remuneration could be collected by law, hence a voluntary payment for a service rendered, an expression of gratitude for which an action cannot be maintained, a voluntary donation, in consideration of services which admit of no compensation in money. While it has been said to denote a compensatory payment, it may, be context, be construed as a gift. (emphasis supplied)"

On the contrary, term 'privilege' has been explained by the Apex Court in judgment reported as "Karamat Hussain and others v. Muhammad Zaman and others (PLD 1987 SC 139") in the following manner:

"A privilege is some particular benefit or advantage conferred on a person or a class of persons which other citizens do not enjoy. (emphasis supplied)"

In the light of the above definitions, we may conclude that perks and privileges are peculiar benefits for which the Vice-Chancellor was entitled while holding such post, whereas, honorarium is not given to a Vice-Chancellor by virtue of his post, but the same was a voluntary payment being made in recognition of meritorious services of an employee. Even otherwise, admittedly, the budget of the University was sanctioned by the Syndicate and Senate which was headed by the Chancellor and undisputedly the budget for the period in which the VC drew honorarium was duly sanctioned by the Syndicate and Senate, as such it cannot be said that the honorarium was drawn by him without the sanction of the Chancellor. Moreover, during investigation it came on surface that it was a long standing practice in the University that the Vice-Chancellors along with others drew honorarium without the sanction of the Chancellor. JIT pointed out names of former Vice-Chancellors Prof. Dr. Riaz Hussain Qureshi, Prof. Dr. Bashir Ahmad, Prof. Dr. Muhammad Iqbal Zafar, Prof. Dr. Zafar Iqbal and Prof. Dr. Muhammad Ashraf, who in their respective tenures received honorarium, therefore, singling out the petitioner in this charge is not only discriminatory but also shows mala fide and ulterior motive on the part of the authority, who launched probe in this regard.

1. Now coming to third allegation that the VC drew double salary at a time as Vice-Chancellor and Project Director of "U.S Pakistan, Center for Advanced Studies in Agriculture and Food Security, University of Agriculture, Faisalabad" (CAS). During investigation, it came on surface that the aforesaid project was started in the year 2014 and in the agreement with the Government it was written that the VC shall took over the charge of said project as Chief of Party (COS) on completion of his tenure as Vice-Chancellor on 22-01-2017 with an overlapping period of one month to transition which started in December 2016. The tenure of the VC was going to expire on 22.01.2017; therefore, he took over the charge as COS in December 2016. After expiry of his tenure as Vice-Chancellor, the Governor/ Chancellor assigned him look after charge of the Vice-Chancellor of the University. There is nothing on the record to suggest that duties of look after charge were assigned to the VC on his desire or request. In such an eventuality, VC was left with no option except to continue his services as COS and the Vice-Chancellor simultaneously in compliance of the orders of the Governor/ Chancellor. During investigation, Treasurer of the University appeared before the Investigating Teams and in categorical terms denied that the VC ever received salaries of two posts at a time. After consulting with the record, Investigating Teams opined that the VC only drew single salary for the post of Vice-Chancellor and till the holding of temporary charge of said post, he did not secure even a single penny as COS. Record further evinces that the VC relinquished the charge of the office of Vice-Chancellor on 08-08-2017. The said project was supposed to continue till December 2019 but due to change of hierarchy in USA the same was terminated within seven months of taking over its charge by the VC and due to that very reason USAID gave severance pay to all the employees of project including the VC, who at the time of receipt of said salary was not even employee of the University. During investigation, it also came on surface that all the financial transactions were directly made by the US Embassy and not even a single penny was paid to the VC or other employees of USAID Project through the public account. There was not even a single iota of material from which it could be inferred that while holding the office of VC, he received any salary as Incharge of CAS, therefore, in two consecutive investigation, the Investigating Agency recommended droppage of the proceedings against the VC.

2. Moreso, despite being on merit the then Chief Minister denied appointment of the petitioner as Vice-Chancellor, inter-alia, on the ground of lack of financial and administrative control during his previous tenures, which was challenged by the petitioner before this Court and finally the matter went to the Apex Court, who vide judgment dated 07.12.2020 passed in Civil Appeals Nos. 326-L and 327-L of 2020 brush aside such findings in the following manner:-

"The record further reveals that the Secretary Agriculture Department, Government of the Punjab was part of the Search Committee. The said Secretary is the Principal Accounting Officer of the Government of Punjab. He was a member of the Search Committee that placed the Appellant at Serial No.1 of the merit list. It is worth mentioning that the same Secretary has given the Appellant 10 out of 10 marks in the category of "Administrative and Financial Management". Further the Appellant was given 45 marks in the Interview. As against this, the Respondent was given only 31 marks in the Interview. The same Secretary was part of the interview as well. Therefore, when the representative of the Government who had first hand knowledge of all material and relevant facts also gave highest marks to the Appellant and low marks to the Respondent, we do not see why the Appellant was not appointed and that too without cogent and convincing reasons."

The purpose of highlighting the above para is that if the VC has committed any financial embezzlement or misuse of authority in his previous tenures, the representative of the Government i.e. Secretary Agriculture, who had the first hand knowledge, was not supposed to award him ten out of ten marks in the "Administrative and Financial Management".

1. Besides above, it is evident from the record that regarding the same allegations the matter was thoroughly inquired by the National Accountability Bureau (NAB), who vide letter dated 28.08.2018 recommended closure of the inquiry. Now the question arises whether after closure of the inquiry by the NAB authorities, on the same allegations, ACE is vested with any power to re-open/ re-investigate the same. Before proceeding further it is appropriate to go through the provisions of Section 18(d) of NAO, 1999 which reads as under:-

"The responsibility of inquiry into and investigation of an offence alleged to have been committed under the Ordinance shall rest on the NAB to the exclusion of any other agency or authority, unless any such agency or authority is required to do so by the Chairman NAB or by an officer of the NAB duly authorized by him."

Bare perusal of above section makes it abundantly clear that NAB authorities have exclusive jurisdiction to inquire into and investigate any offence which has been committed under the NAO, 1999 and once it assumes the jurisdiction, no other agency is empowered to investigate the same subject matter, unless directed by the Chairman NAB or an officer authorized by him in this regard. Learned counsel for respondents Nos.5 and 6 argued that the investigation being conducted by the ACE is regarding the offences which were not subject matter of NAB Ordinance. I am not convinced with this argument. Impugned FIR was registered against the petitioner, under sections 409, 420,468 and 471, P.P.C. read with Section 5(2) PCA, 1947. Sections 9(ix) and 9(xii) covered the offence under Sections 420 and 409, P.P.C. respectively. Similarly, the Schedule attached with the NAO, 1999 covers the offences committed under Sections 468 and 471, P.P.C., whereas, Section 5(2) of PCA, 1947 is akin to the offences under Section 9(a) of the NAO, 1999, therefore, in any eventuality it cannot be said that the ACE had conducted investigation other than the offences upon which the NAB has already taken cognizance. In the above circumstances, I am of the considered view that launching of investigation by the ACE regarding the same subject matter, which has already been adjudicated upon and closed by the NAB, is in clear contravention of Section 18(d) of the Ordinance ibid and cannot be approved by this Court.

1. Learned counsel for respondents Nos.5 and 6 time and again argued that cancellation report of the impugned FIR is pending adjudication before the Trial Court and this Court vide order dated 11.12.2023 passed in W.P.No.42718/23 filed by the complainant of the FIR, directed the Trial Court to decide the same after considering the findings of Special Judge, Anti-Corruption in para No.21 of the order dated 08.05.2023, as such cancellation report ought to have been decided by the Trial Court. I am not convinced with this submission. Cancellation report and petition for quashing of FIR are entirely two different subjects falling under the jurisdiction of two different Courts, as such merely due to the pendency of Cancellation report before the Trial Court, proceedings in the quashment petition cannot be halted.

2. Learned counsel further while placing on record copy of order of this Court dated 12.01.2021 passed in Writ Petition No.47510/20 laid much emphasis that regarding the self same relief earlier the petitioner's petition has been dismissed. I have anxiously gone through the said order and observed that subject matter in the said petition was not quashing of impugned FIR rather proceedings initiated against the VC by various departments. Moreso, said application was not dismissed on merits rather this Court disposed of the same while observing that impugned proceedings have been initiated against the VC during the pendency of his CP before the Apex Court and he was advised to approach the said Court for redressal of his grievance. Civil Appeal filed by the petitioner before the Apex Court has already been allowed in his favour and presently no proceedings are pending in the said Court, as such the referred order of this Court stands nowhere in deciding of instant petition.

2025 Y L R 302

[Lahore (Multan Bench)]

Before Ahmad Nadeem Arshad, J

Mst. Kaneez Fatima and 2 others---Petitioners

Versus

Ghulam Husain (deceased) through Legal Hairs and others---Respondents

Civil Revision No. 751-D of 2024, decided on 7th December, 2023.

Specific Relief Act (I of 1877)---

----Ss. 42 & 54---Islamic law---Suit for declaration---Will---Absence of consent of legal heirs---Effect---Concurrent findings of facts by two Courts below---Respondent / plaintiff claimed to be owner of suit property on the basis of registered will---Suit and appeal were decided in favour of respondent / plaintiff by Trial Court and Lower Appellate Court respectively---Validity---Testator can bequest his entire property to a non-heir through a will in the following cases i.e. where subject to the provision of any law for the time being in force, such excess is permitted by a valid custom; where there are no heirs of the testator; where the heirs existing at the time of the testator's death consent to such bequest after his death, and where the only heir is husband or wife and bequest of such excess does not effect his or her share---Consent given by heirs may be express or implied, it may be oral or in writing and it can also be implied from conduct---Where testator makes a bequest and on his death, other heirs help legatee in affecting a mutation in name or allow the legatee to take exclusive possession of property, it is proof of the heir's consent---There was no illegality, irregularity and mis-reading or non-reading of evidence on the part of two Courts below while passing judgments and decrees---Both the courts below while passing judgments and decrees considered every piece of evidence, oral as well as documentary, produced before them and nothing from the record was shown to have been overlooked by them from their judicious consideration---High Court in exercise of revisional jurisdiction declined to interfere in judgments and decree passed by two Courts below as their findings on question of facts and law were based upon proper appreciation of oral as well as documentary evidence produced in the suit and were not liable to be reviewed or substituted by the Court---Revision was dismissed, in circumstances.

Zakia Begum and others v. Nasir-ul-Islam Khan and others 2022 SCMR 2130; Muhammad Tufail v. Atta Sahbbir and 5 others PLD 1977 SC 220; Abdul Haq and another v. Mst. Surrya Begum and others 2022 SCMR 1330; Syed Husnain Naqvi and others v. Mst. Begum Zakara Chatha through LRs and others 2015 SCMR 1081; Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373; Muhammad Akhtar v. Mst. Manna and 3 others 2001 SCMR 1700; Ghulam Muhammad and 3 others v. Ghulam Ali 2004 SCMR 1001; Abdul Mateen and others v. Mustakhia 2006 SCMR 50 and Malik Muhammad Khaqan v. Trustees of the Port of Karachi (KPT) and another 2008 SCMR 428 rel.

Muhammad Maalik Khan Langah for Petitioners.

Muhammad Masood Bilal and Masood Arif Butt for Respondents.

Date of hearing: 3th October, 2023.

Judgment

Ahmad Nadeem Arshad, J.---This Revision Petition has been directed against the judgments and decrees of Courts below whereby the suit of the respondent No.1 namely Ghulam Hussain was decreed concurrently.

1. Facts in brevity are that predecessor of respondents namely Ghulam Hussain (plaintiff) instituted a suit for declaration and permanent injunction on 01.08.1995 against the petitioners (defendants) and sought declaration to the effect that he is owner in possession of the land measuring 1243 Kanals situated at Khata No.210/124, Mauza Khairaywala, Tehsil Chobara, District Layyah, according to the record of rights for the years 1957-58 and land measuring 1067 Kanals situated at Mauza Khairaywala, Tehsil Chobara, District Layyah, in the light of mutation No.2543 dated 12.08.1971 sanctioned on the basis of registered will deed No.1 dated 06.05.1968; that the said mutation and registered will deed have been sanctioned/executed correctly and defendants have no concern with the suit property; that order dated 04.09.1994 of Consolidation Collector, Layyah, order dated 02.10.1994 passed by Consolidation Officer Chobara and order dated 12.07.1995 passed by Consolidation Collector, are against the facts, law, without issuing notice, without providing opportunity of hearing, void, and having no effect upon his rights and as a consequential relief sought issuance of perpetual injunction that the defendants be restrained permanently from interfering in his title, possession and incorporation of the impugned orders in the revenue record. Plaintiff pleaded in his suit that the suit property originally belonged to Diam son of Dulla who transferred the same through registered will deed dated 06.05.1968 in his favour; that after his demise, in the light of said will, with the consent of his legal heirs mutation No.2543 was attested on 12.08.1971; that against said mutation defendant No.1 namely Kaneez moved a review petition; that Collector Consolidation granted permission of review vide order dated 04.09.1994; that in the light of said permission Consolidation Officer reviewed the mutation No.2543 vide order dated 02.10.1994; that he challenged said order by preferring an appeal which was dismissed vide order dated 12.07.1995; that the defendants are estopped from their words and conduct to challenge the will deed and mutation; that Consolidation Officer has no authority to declare that Diam (deceased) was Shia by sect and prayed for decree of his suit. Petitioners/defendants resisted the suit through filing contesting written statement whereby they raised preliminary objections that plaintiff is their real brother who is adamant to deprive them from their inheritance right; that alleged will was neither got executed by Diam (deceased) nor it was acted upon/implemented; that alleged will was not disclosed to the defendants and their father; that the plaintiff is estopped from his words and conduct to institute the suit; that plaintiff has no cause of action; that the suit is not maintainable in its present form; that consolidation proceedings cannot be challenged in the Civil Court; that suit is barred by time; that plaintiff has efficacious remedy by way of appeal and without availing such remedy the suit is not maintainable. While replying on facts, maintained that Diam was owner of the suit property; that plaintiff prepared the alleged will by practicing fraud and succeeded to get the said will incorporated through mutation which was rightly reviewed by the Collector; that mutation No.2543 was concealed from the legal heirs of Diam and at the time of execution of the alleged will as well as sanction of mutation neither Allah Diwaya (legal heir of Diam) was present nor his consent was obtained. In last, they prayed for dismissal of the suit. Learned Trial Court, in the light of divergent pleadings of the parties framed necessary issues and invited them to produce their respective evidence. After recording evidence of the parties pro and contra, oral as well as documentary, decreed the suit vide judgment and decree dated 28.07.2000. Feeling aggrieved, petitioners preferred an appeal. During the pendency of said appeal, the learned Appellate Court framed two additional issues (1-a and 1-b) vide order dated 23.09.2003 and remitted the matter to the learned Trial Court under Order XLI Rule 25, C.P.C with the direction that after recording additional evidence and giving findings on said issues file be sent back to the Court. Learned Trial Court, after recording evidence of the parties, decided both the issues vide order dated 17.01.2004 and sent the matter back to the learned Appellate Court. Learned Appellate Court, thereafter, dismissed the appeal vide judgment and decree dated 06.05.2004. Being dissatisfied, petitioners filed instant revision petition.

2. Heard. Record perused.

3. Respondent No.1 in his suit basically challenged the orders dated 04.09.1994, 02.10.1994 and 12.07.1995. From the record it appears that petitioner No.1 (Kaneez) moved an application in the year 1994 before the Consolidation Officer, Layyah, for review of the mutation No.2543 dated 12.08.1971. After receiving said application, the Consolidation Officer sought permission of review and forwarded the matter to the Addl. Deputy Commissioner Consolidation vide order dated 01.09.1994, who granted permission of review through order dated 04.09.1994. In the light of said permission, the Consolidation Officer, vide order dated 02.10.1994 reviewed the mutation No.2543 and passed fresh order by giving 1/3 share to the plaintiff in the light of will and rest of the 2/3 share was given to Allah Diwaya (father of parties) being lineal ascendant of Diam (deceased). Plaintiff challenged said order through preferring an appeal which was dismissed vide order dated 12.07.1995. Being aggrieved, plaintiff assailed said orders by instituting the suit in hand.

4. Now the basic point for determination is that whether mutation No.2543 passed on the strength of registered will deed could be reviewed or not by the Consolidation Officer.

5. Admittedly, the suit property belonged to Diam who died issueless. During his lifetime, he transferred his entire property to plaintiff (Ghulam Hussain) through a registered will deed dated 06.05.1968 (Exh.P.10). Diam died on 02.02.1970 as evident from his death certificate (Exh.D.3). He neither cancel nor challenge said will deed during his lifetime. At the time of his death, the only surviving legal heir was Allah Diwaya (father of the parties) being his lineal ascendant. Although, the petitioners alleged that at the time of demise of Diam, Mst. Fateh wife of Diam was also alive and she was legal heir of said Diam but the petitioners failed to prove said fact by producing cogent and trustworthy evidence. Diam was died on 02.02.1970 as evident from his death certificate (Exh.D.3), whereas, Mst. Fateh w/o Diam died on 22.11.1968 as is evident from her death certificate (Exh.P.11), therefore, the findings of learned Appellate Court that at the time of demise of Diam, his only surviving heir was Allah Diwaya, his lineal ascendant are correct.

6. Perusal of mutation No.2543 dated 12.08.1971 (Exh.P.2) it appears that said mutation was sanctioned in presence of Allah Diwaya, the legal heirs of Diam in favour of plaintiff. Said Allah Diwaya did not raise any objection at the time of attestation of said mutation which was sanctioned on the strength of registered will deed. It also suggests that said will deed was came into the knowledge of said Allah Diwaya at the time of attestation of mutation but he neither challenged the will nor questioned said mutation during his lifetime. He died in the year 1979 as evident from his inheritance mutation No.797 dated 07.10.1980 (Exh.P.13). His presence at the time of mutation and silence till his death speaks a lot and appears to his consent over will deed.

7. It is matter of record that husbands of the petitioners namely Muhammad Murad, Laal Khan and, Sultan along with others being reversionaries of Diam challenged the veracity of said registered will deed dated 06.05.1968 and mutation No.2543 dated 12.08.1971 by instituting suit for declaration on 17.05.1974 against the plaintiff. The suit was resisted by the plaintiff and the learned Trial Court after contest dismissed the same vide judgment and decree dated 03.04.1978. Said decree was not assailed any further and it attained finality. Copies of said proceedings are available on file as Exh.P.1.

8. Although, the petitioners (defendants) were in knowledge of the will deed and mutation No.2543 as their husbands challenged said will deed and mutation, but they did not challenge said will deed and mutation before any competent forum at the relevant time. The Civil Court has the ultimate jurisdiction to see legality and validity of any registered or unregistered document. It is also matter of record that petitioners instituted a suit for declaration against their mother namely Mst. Dolat and plaintiff with regard to inheritance mutation of their father namely Allah Diwaya in the year 1986. Said suit was decided on the basis of compromise. In this regard, plaintiff as well as defendants Nos.2 and 3 executed undertakings on 27.02.1990. Said proceedings were placed on record as Exh.P.5. Through compromise agreement executed by petitioners Nos.2 and 3/ defendants Nos.2 and 3 (Glulam Fatima and Mureed), they undertook as under:

In the light of said undertaking, petitioners were estopped to challenge the veracity of mutation No.2543, sanctioned on the strength of will with regard to legacy of Daim son of Dullah.

1. The Consolidation Officer, Layyah, while reviewing the mutation No.2543 admitted the will deed as correct and awarded 1/3 of the suit property to the plaintiff. However, reviewed the mutation on the ground that testator could not bequest more than one third of his property. The petitioners did not challenge said findings of the Consolidation Officer.

2. In order to reach a just conclusion, it is better to understand the terminology of 'Will', its effect and how much property a testator can bequest. The Will is defined under Section 2(h) of the Succession Act, 1925, which reads as under:

"will" means the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death."

A will or testament or Wassiyat has been defined as "an instrument by which a person makes disposition of his property to take effect after his death and by the virtue of its nature is rescindable.

A will is essentially a legal declaration which signifies the intention of the testator with regard to the distribution of his or her property. A will does not affect the power of the owner to transfer the property either inter vivos or by any other testamentary disposition. It is not binding upon the testator in any manner, especially before his or her death.

Ameer Ali says "a will from the Mussalman point of view is a divine institution since its exercise is regulated by the Quran".

Tyabji says that a will means "the legal declaration of the intentions of a Muslim with respect to his property which he desires to be carried into effect after his death."

According to the Hedaya, composed by Sheikh Burhan Ud-Din Ali "a will is the endowment with the property of anything after death".

The august Supreme Court of Pakistan in its recent judgment titled "Zakia Begum and others v. Nasir-ul-Islam Khan and others (2022 SCMR 2130)", defines the will as under:

"A will can therefore be considered as a formal document drawn up by a natural person wherein he expresses his wish as to how he would want his estate to be distributed after their death. By virtue of the fact that wills operate after the death of the donor, they are considered testamentary instruments i.e. instruments that come into effect after the death of the donor/testator."

The following terms are important to note in terms of wills:

a) Testator:-The person, who makes/creates a will.

b) Legatee:- The person/persons, in whose favour, the will is created.

c) Legacy:- The subject matter of the will. It is the property to be distributed among the heirs.

d) Executor:- The testator, while executing the will, may appoint a person to execute the will in accordance with its contents (after his death).

When a Muslim dies there are four duties which need to be performed. These are:

· Payment of funeral expenses

· Payment of his/her debts

· Execution his/her will

· Distribution of the remaining estate amongst the heirs according to Shariat.

When a person dies his/her property devolves upon his/her heirs. A person may die with or without a will (Testament). If he or she dies leaving a will, the property is distributed among his/her heirs according to the rules of Testamentary Succession. In other words, the property is distributed as per the contents of the testament or will. On the other hand if a person dies leaving no testament (will), that is dies intestate, the rules of intestate Succession are applied for distribution of the property among heirs.

Will is declared lawful in the Qur'an, though the Qur'an itself does not provide for the testamentary restriction of 1/3rd. The permissibility of bequest upto 1/3rd is traced to a Hadiath of the Prophet which has been stated by Sa'd Ibn Abi Waqqas and the information was reported by Bukhari. The story behind this was one of the fellow associates of Prophet was very ill and there were chances of his death, as was very old as well, also he canceled his Mecca due to ill-health. He was asked by the Prophet about the distribution of his wealth, for which replied that he will give all his property in charity (not to the family), to which Prophet said he should give only 1/3 of his total property to any one of his choices so that the major portion remains within the family and they will not become destitute in future. The Said Hadiath reads as under:

"The Messenger of God used to visit me at Mecca, in the year of the Farewell Pilgrimage on account of my illness which had become very serious. So I said, "My illness has become very severe and I have much property and there is none to inherit from me but a daughter, shall I then bequeath two-thirds of my property as a charity?" He said, "No." I said, "Half?", He said "No." Then he said: "Bequeath one-third and one-third is much, for if thou leavest thy heirs free from want, it is better than that thou leavest them in want, begging of other people; and thou dost not spend anything seeking thereby the pleasure of Allah but thou art rewarded for it even for that which thou puttest into the mouth of they wife"

1. A will can be made in favour of heir as well as non-heir. In case of heir, the bequest is not valid unless the other heirs consented to the bequest after the death of the testator as defined in Section 117 of D.F. Mulla.s Mohammadan Law, reads as under:

"A bequest to an heir is not valid unless the other heirs consent to the bequest after the death of the testator. Any single heir may consent so as to bind his own share.

Explanation - In determining whether a person is or is not an heir, regard is to be had, not to the time of the execution of the will, but to the time of the testator's death."

The testator is also entitled to make a bequest in favour of a non-heir.

1. The next question is how much property of a testator can be disposed of through bequest. Section 118 of D.F. Mulla's Mohammadan Law defines that a Mohammadan cannot dispose of more than third of the surplus of his estate after payment of funeral expenses and debts, but in excess of one third cannot be taken effect, unless the heirs consented thereto which is reproduced as follows:

"A Mohammadan cannot by will dispose of more than a third of the surplus of his estate after payment of funeral expenses and debts. Bequests in excess of the legal third cannot take effect, unless the heirs consent thereto after the death of the testator."

1. B.J. Verma in Section 188 of the Commentaries of Muhammadan Law describes that a bequest to an heir is not valid except to the extent to which the heirs of the testator make consent expressly or impliedly. Meaning thereby, there is no restriction upon the testator and he can bequest his entire property to his legal heir but said bequest will require consent from the legal heirs after the death of testator impliedly or expressly. Said section reads as under:

"A bequest to an heir is not valid except to the extent to which the persons who are the heirs of the testator at the time of his death, expressly or impliedly consent to the bequest after his death."

However, in case of non-heir, Mohammadan can dispose of his property, in excess of one third, if qualify the conditions as stated in section 190 of B.J Berma's Commentaries of Mohammadan Law, which reads as under:

"A Mohammedan is not entitled to dispose of his property (which would otherwise devolve on his heirs under Mohammedan Law) by will in favour of a person who is not a heir, in excess of one third except in the following cases:-

(1) Where, subject to the provisions of any law for the time being in force, such excess is permitted by a valid custom;

(2) where there are no heirs of the testator;

(3) where the heirs existing at the time of the testator's death, consent to such bequest after his death;

(4) where the only heir is the husband or the wife and the bequest of such excess does not effect his or her share."

There are two exceptions to the one third Rule:

a) When the testator does not have any heir. In such cases, if the restriction of permissible one-third is applied, then the beneficiary is the Government who will take the property by doctrine of Escheat, while the primary purpose of applying the bequeathable permissibility to the extent of one-third is to protect the rights of the heirs, and not that of the Government. An heirless person can thus make a bequest of the total property.

b) Where the heirs themselves consent to the bequest in excess of one-third. As the chief objective is to safeguard the interests of theirs, the excess bequest can be validated by consent.

The august Supreme Court of Pakistan in the case titled "Muhammad Tufail v. Atta Sahbbir and 5 others (PLD 1977 SC 220)", with regard to Shia School of thought held as under:

"……..according to Shia Law, a testator can leave a legacy to an heir even without the consent of the other heirs but where it exceeds one-third, it is not valid without the consent of all the other heirs who may give their consent before or after the death of the testator."

The will covering the entire property of the testator instead of being confined to one-third is not void-ab-initio as held by the Supreme Court of Pakistan in Muhammad Tufail's case (referred supra), wherein the Court observed as under:

"The first question to be addressed to is as to what is the effect of the will covering the entire property of the testator instead of being confined to one-third. As observed earlier, this restriction on the extent of testamentary disposition confining it to one-third of the entire property of the testator is not based on any injunction of the Holy Qur'an but is traced to a tradition of the Holy Prophet (peace be upon him) to which no less sanctity attaches as a source of Islamic Law. Since, however, according to the Shia doctrine based on Verses 180 and 181 of Sara AI-Baqara, a bequest could be made to an heir and even in excess of one-third subject course to the assent of other heirs it is clear that bequest comprising the entire property is not void ab initio and of course depends on its validity on the assent of all the heirs which is not available in the instant case."

The will made in favour of non-heir will be effective without the consent of other heirs as held by the august Supreme Court of Pakistan in the case titled "Abdul Haq and another v. Mst. Surrya Begum and others (2002 SCMR 1330). The facts of the case are that one Samad Khan who was allotted evacuee land in lieu of his verified claim, died in the year 1960 leaving behind a son namely Atta Muhammad and children of Ali Muhammad, his pre-deceased son. His inheritance mutation was sanctioned on the basis of will in favour of children of his pre-deceased son. Atta Muhammad appeared before the Revenue Officer at the time of sanction of mutation and objected to giving effect to the will. It was apprised to the Revenue Officer that Atta Muhammad had been dislodged by Samad Khan, therefore, he was deprived of right of inheritance in the property of Samad Khan. Said Atta Muhammad did not challenge said mutation, however, sons of Ali Muhammad instituted a suit for declaration against their sisters with the allegation that they are daughters of Muhammad Bibi from her previous husband namely Nazir Ahmad and are not daughters of Ali Muhammad, therefore, they are not entitled and they (plaintiffs) are only entitled to inherit whole property of Samad Khan. The suit was dismissed, however, appellate Court reversed the findings and decreed the suit but this Court while accepting the Revision Petition, set-aside the decree of appellate Court and restored the decree of learned appellate Court. The august Supreme Court held as under:

"The findings of the First Appellate Court that will having not been consented to by Atta Muhammad as is clear from the proceedings in mutation, the same could not be given effect to as according to Muhammadan Law, disposal of property through will by a Muhammadan in favour of one of the heirs is not effective unless the other heirs after the death of the maker of will had consented to are not tenable as it was altogether ignored that none of the parties in the presence of Atta Muhammad son of Samad Khan were entitled to inherit the property from Samad Khan being heirs of his predeceased son at the time of his death in 1960, therefore, the will made in favour of respondents was not a will made in favour of any heir of Samad Khan as such the same was effective even without the consent of Atta Muhammad."

From the above discussion, conclusion can easily be drawn that a testator can bequest his entire property to a non-heir through will in the following cases i.e. where subject to the provision of any law for the time being in force, such excess is permitted by a valid custom, where there are no heirs of the testator, where the heirs existing at the time of the testator's death, consent to such bequest after his death and where the only heir is the husband or the wife and the bequest of such excess does not affect his or her share.

1. The consent given by the heirs may be express or implied. It may be oral or in writing. It can also be implied from conduct. Where the testator makes a bequest and on his death, the other heirs help the legatee in affecting a mutation in name or allow the legatee to take exclusive possession of the property, it is proof of the heir's consent.

2025 Y L R 322

[Lahore]

Before Ch. Muhammad Iqbal, J

Abdul Rehman and others---Petitioners

Versus

Nazir Ahmad and others---Respondents

Civil Revision No. 59188 of 2024, decided on 30th September, 2024.

(a) Punjab Tenancy Act (XVI of 1887)---

----Ss.5 & 6---Specific Relief Act (I of 1877), S.42---Punjab Conferment of Proprietary Rights on Occupancy Tenants and Muqarraridars Act (XXVII of 2012), S.2(b)---Civil Procedure Code (V of 1908), O.XLI, R.22---Suit for declaration---Occupancy tenant---Determination---Claim of respondents/ plaintiffs was that suit-land was in their occupancy and that petitioners/ defendants had nothing to do with the same---Plaintiffs had alleged that the names of the defendants had been entered in the column of cultivation as Dakheelkar in the record of right for the year 1976-77 and a mutation had also been attested in their name fraudulently with the connivance of revenue officials for conferment of proprietary right---Defendants refuted the claim of plaintiffs contending that mutations had been validly attested---Trial Court dismissed the suit, whereas, the Appellate Court accepted appeal of the plaintiffs---Validity---Tenancy of the defendants had not been established through any documentary evidence---Dakheelkar occupancy tenant was the only tenant who had possession upon the land about 20 years prior to promulgation of the Punjab Tenancy Act, 1887, (Act)---Witness of the defendants deposed that predecessors of the defendants migrated from Jammu and Kashmir at the time of partition of India---Defendants mentioned in their written statement that their predecessors were in possession of the suit property for the last 40/41 years, meaning thereby they were not in possession since 21st day of October, 1868---Prior to sanctioning of mutation, the particulars of the defendants did not exist in the revenue record as occupancy tenant, and even no affirmative document was produced by them, as such any entry made by the revenue officer and order passed by the Assistant Commissioner were perverse and patently illegal---Trial Court decided issue No.4 in favour of the plaintiffs but the defendants neither challenged the findings on said issue nor filed any cross objections under O.XLI, R.22, CPC, as such the said issue had attained finality against the defendants and had become past and closed transaction---Civil revision was dismissed, in circumstances, with a direction to the revenue hierarchy to consider the criteria prescribed in Ss.5 & 6 of the Act before granting proprietary right under S.2(b) of the Punjab Conferment of Proprietary Rights on Occupancy Tenants and Muqarraridars Act, 2012.

Muhammad Shafi and others v. Custodian of Evacuee Property and others 1985 CLC 3005; Amir Hussain Shah and 5 others v. Ranjha and others 2000 YLR 2188 and Pakistan International Airlines Corporation v. Aziz-ur-Rehman Chaudhary and another 2016 SCMR 14 rel.

(b) Appeal---

----Conflict between judgment of lower courts---Preference---Scope---In the event of conflict of judgments, findings of Appellate Court are to be preferred, unless it is proved from the record that such findings are not supported by evidence.

Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 and Rao Abdul Rehman (deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others 2023 SCMR 815 rel.

Nadeem-ud-Din Malik for Petitioners.

Order

Ch. Muhammad Iqbal, J.---Through this civil revision, the petitioners have challenged the vires of judgment and decree dated 11.09.2024 passed by the learned Addl. District Judge, Zafarwal who accepted the appeal of the respondents, set aside the judgment and decree dated 09.02.2022 passed by the learned Civil Judge, Zafarwal and decreed the suit for declaration filed by the respondents as prayed for.

1. Brief facts of the case are that respondents Nos.1 to 31/ plaintiffs filed a suit for declaration against the petitioners and proforma respondents No.32 to 37/defendants contending therein that Bashir Ahmad, Muhammad Sharif and Munshi, predecessor-in-interest of the respondents/plaintiffs were local residents, they were owners in possession of Khasra Nos.853/1 and 853/2. That Ghulam Muhammad and Nazir Ahmad (predecessor-in-interest of the defendants) were migrated from Jammu and Kashmir in the year 1947. Predecessor-in-interest of the respondents/plaintiffs were cultivating the suit property. That in consolidation (Bandobast) of land, Khasra Nos.853/1 and 853/2 were changed into Khasra Nos.1041 and 1042. The petitioners/defendants with connivance of the revenue official got incorporated their names in column of cultivation as Dakheelkar in the record of rights for the years 1976-77, without any justification and they were not entitled to get incorporate said entry as their names were not recorded before 21st day of October 1868. In the years 1980 and 1984 consolidation proceedings were carried out whereby Khasra Nos.1041 and 1042 were again changed into Khasra Nos.1774 and 1775. The petitioners/defendants were also got entered as Dakheelkar in the column of cultivation in the record of rights for the years 1981 and 1982. On the basis of those unwarranted entries, an order was passed by the Assistant Commissioner, Narowal on 26.05.1996 and on the basis of said order petitioners got attested mutation No.2537 dated 26.09.1996 for conferment of proprietary rights whereas the entire proceedings are void, illegal and based on fraud.

Petitioners/defendants Nos.1,2,5 to 17 filed contesting written statement. Out of divergent pleadings of the parties, issues were framed and evidence was recorded. The trial court vide judgment and decree dated 09.02.2022 dismissed the suit of the respondents. Respondents, feeling aggrieved with the aforementioned judgment and decree, preferred an appeal which was accepted by the appellate court vide judgment and decree dated 11.09.2024 who after setting aside the judgment and decree dated 09.02.2022 decreed the suit for declaration filed by the respondents as prayed for. Hence, this civil revision.

1. Arguments heard. Record perused.

2. Under Section 6 of the Punjab Tenancy Act, 1887, a person should hold tenancy before 21st day of October, 1868. For ready reference, Section 6 of the Act ibid is reproduced as under:

"6. Right of occupancy of other tenants recorded as having the right before passing of Punjab Tenancy Act, 1868.- A tenant recorded in a record-of-rights sanctioned by the Provincial Government, before the twenty-first day of October, 1868, as a tenant having a right of occupancy in land which he has continuously occupied from the time of the preparation of that record, shall be deemed to have a right of occupancy in that land unless the contrary has been established by a decree of a competent Court in a suit instituted before the passing of this Act."

Section 5 of the Punjab Tenancy Act, 1887 requires that a tenant should have been in possession over the land at the time of commencement of said Act ibid or since more than two generations in the male line descendants for a period not less than 20 years without paying rent. For ready reference, Section 5 of the Act ibid is reproduced as under:

"5. Tenants having right of occupancy.- (1) A tenant-

(a) who at the commencement of this Act has, for more than two generations in the male line of descent through a grandfather or grand uncle and for a period of not less than twenty years, been occupying land paying no rent therefor beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon, or

(b) who having owned land, and having ceased to be land-owner thereof otherwise than by forfeiture to the Government or than by any voluntary act, has, since he ceased to be land-owner, continuously occupied the land, or

(c) who, in a village or estate in which he settled along with, or was settled by, the founder thereof as a cultivator therein, occupied land on the twenty first day of October, 1868, and has continuously occupied the land since that date, or

(d) who, being jagirdar of the estate or any part of the estate in which the land occupied by him is situate, has continuously occupied the land for not less than twenty years, or having been such jagirdar, occupied the land while he was jagirdar and has continuously occupied it for not less than twenty years, has a right of occupancy in the land so occupied, unless, in the case of a tenant belonging to the class specified in clause (c), the landlord proves that the tenant was settled on land previously cleared and brought under cultivation by, or at the expense of, the founder.

(2) If a tenant proves that he has continuously occupied land for thirty years and paid no rent therefor beyond the amount of the land-revenue thereof and the rates and cesses for the time being chargeable thereon, it may be presumed that he has fulfilled the conditions of clause (a) of sub- section (1).

(3) The words in that clause denoting natural relationship denote also relationship by adoption, including therein the customary appointment of an heir and relationship, by the usage of a religious community."

2025 Y L R 333

[Lahore]

Before Farooq Haider and Ali Zia Bajwa, JJ

Qamar Masih---Appellant

Versus

The State---Respondent

Criminal Appeal No. 203 of 2008, decided on 9th October, 2024.

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

----S. 9(c)---Possession of narcotic substance---Appreciation of evidence---Safe custody and transmission of case property to the laboratory for analysis not proved---Effect---Prosecution case was that 9060-kilograms charas was recovered from the possession of the accused---As per case of prosecution, parcel of entire statedly recovered charas was sent to the office of Chemical Examiner, and in that regard, report of Chemical Examiner was available on the record---Perusal of said report revealed that packet in the case was dispatched on 08.02.2006 from Excise and Taxation Officer, however the record did not show that when packet containing statedly recovered charas in the case was sent to the office of Excise and Taxation Officer, who took the same there and who collected it from there for submitting the same to the office of Chemical Examiner---Police Constable categorically deposed before the Court that on 14.02.2006, Head Constable/ Moharrar of the police station handed over to him one sealed parcel, which he deposited in the office of Chemical Examiner---Said witness had not stated that said parcel was at any time taken to Excise and Taxation Officer, or was collected by him from Excise and Taxation Officer, for depositing the same in the office of Chemical Examiner---Similarly, Head Constable/ Moharrar of the police stationstated that Investigating Officer handed over parcel to him on 05.02.2006 and he handed over the same on 14.02.2006 to Police Constable for its onward transmission to the office of Chemical Examiner, and he did not depose that said sealed parcel was ever sent to Excise and Taxation Officer, or was received from the office of Excise and Taxation Officer---As per own case of prosecution, entire case property was sent to the office of Chemical Examiner for analysis, however, prosecution did not produce any evidence to show that when and who brought it back from said office for production of the same before the Court at the time of recording of evidence during trial of the case---Therefore, safe custody and transmission of parcel of case property from police station to the office of Chemical Examiner, and then to Court had not been proved in the case---Appeal against conviction was allowed, in circumstances.

Muhammad Abbas v. The State 2006 YLR 2378; The State through Regional Director ANF v. Imam Bakhsh 2018 SCMR 2039; Abdul Ghani and others v. The State and others 2019 SCMR 608; Muhammad Hazir v. The State 2023 SCMR 986; Asif Ali and another v. The State through Prosecutor General Punjab 2024 SCMR 1408 and Sarfraz Ahmed v. The State 2024 SCMR 1571 rel.

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

----S. 9---Possession of narcotic substance---Safe custody---Principle---If safe custody of allegedly recovered substance/case property is not proved, it straightaway leads to the acquittal of the accused.

(c) Criminal trial---

----Benefit of doubt---Principle---Single dent in the case of prosecution is sufficient for acquittal.

Muhammad Mansha v. The State 2018 SCMR 772; Abdul Jabbar and another v. The State 2019 SCMR 129; Mst. Asia Bibi v. The State and others PLD 2019 SC 64 and Amir Muhammad Khan v. The State 2023 SCMR 566 rel.

Muhammad Javed Iqbal Qureshi, along with the Appellant (on bail).

Haroon Rasheed, Deputy Prosecutor General along with Waris, S.I. for the State.

Date of hearing: 9th October, 2024.

Judgment

Farooq Haider, J.---This appeal has been filed against the judgment dated: 28.06.2007 passed by learned Additional Sessions Judge, Sialkot whereby in case arising out of FIR No.67/2006 dated: 05.02.2006 registered under Section: 9 (c) of the Control of Narcotic Substances Act, 1997 at Police Station: Civil Lines, District Sialkot, trial court has convicted and sentenced the appellant as under:-

under Section 9(c) of Control of Narcotic Substances Act, 1997 to Rigorous Imprisonment for 14-years with fine of Rs.500,000/- and in default thereof, to further undergo S.I for 06-months. Benefit of Section 382-B Cr.P.C. was also extended to the appellant.

1. Briefly, case of prosecution as per written statement/ (Ex.DA) sent by Muhammad Arshad, S.I. (complainant/ PW-1) is that on 05.02.2006, he (complainant/PW-1) was present at Bara Pathar Chowk for searching proclaimed offenders, narcotics sellers; police officials on patrol duty in the area also met him; in the meanwhile a spy information was received that Qamar Masih son of Yousaf Masih resident of Landi Kotal along with his wife namely Sheela, who usually come from their residence situated at Christian Colony Adha and sell narcotics, after sending Humayoun alias Chand to inform customers and bringing charas tied in bundle type cloth () for sale purpose is standing; if a raid is immediately conducted, he could be apprehended from near Church Chowk Qabristan; upon such information, they immediately after constituting raiding team, reached at the spot, a person whose name was disclosed as Qamar son of Yousaf, resident of Landi Kotal (mentioned above) was carrying charas tied in floral ladies chaddar and besides him, one woman whose name was disclosed as Sheela wife of Qamar was also present; on search of bundle carried by Qamar in his hand, golden coloured packet having English text "CHOCO CAPPUCCINO" containing 09-packs/slabs of charas (total weighing 09-Kg and 60-grams) was found; on his personal search, black coloured Motorola mobile C-115 and a currency note of Rs.50/- were recovered, which were taken into possession; recovered charas was sealed into 08-parcles with stamp of H.C. and taken into possession; he also confessed regarding taking of charas from Landi Kotal, keeping the same with his in-laws Christian Colony Adha and while taking his wife namely Sheela along with him, selling the same to his customers on different occasions.

After investigation, challan report was sent to the Court against the appellant; charge was framed against him, to which he pleaded not guilty; prosecution produced its evidence. Trial court recorded statement of the appellant under Section: 342 Cr.P.C. wherein he refuted allegations levelled against him; he did not opt to appear as his own witness under Section 340(2) Cr.P.C. to disprove the allegations levelled against him, however, produced Ashiq Masih as DW-1, Muhammad Iqbal Javaid as DW-2, copy of report prepared under Section: 173 Cr.P.C. in case arising out of FIR No.682/2006 along with proceedings and evidence etc. as Exh.DD, copy of FIR No.68/2006 registered at Police Station: Civil Lines as Exh.DE and copy of FIR No.69/2006 registered at Police Station: Civil Lines as Exh.DF in his defence evidence. Trial court after conclusion of trial has convicted and sentenced the appellant as mentioned above through impugned judgment.

1. Learned counsel for the appellant has contended that safe custody of case property has not been proved therefore conviction recorded and sentence awarded through impugned judgment is liable to be set aside; further requested for acceptance of instant appeal.

2. Conversely learned Deputy Prosecutor General has supported the impugned judgment and requested for dismissal of this appeal.

3. After hearing learned counsel for the appellant, learned Deputy Prosecutor General and going through the record, it has been noticed that as per case of prosecution, parcel of entire statedly recovered charas was sent to the office of Chemical Examiner, Punjab Lahore and in this regard, report of Chemical Examiner, Punjab Lahore is available on the record as Ex.PF; perusal of said report reveals that packet in this case was dispatched on 08.02.2006 from Excise and Taxation Officer (E.T.O.), Sialkot vide letter No.734 dated: 08.02.2006 however learned Deputy Prosecutor General after going through the record could not refer even an iota of material/evidence to show that when packet containing statedly recovered charas in this case was sent to the office of Excise and Taxation Officer, Sialkot, who took the same there and who collected it from there for submitting the same to the office of Chemical Examiner. It is relevant to mention here that Shafaqat Ali, 940/C while appearing as PW-2 categorically deposed before the court that on 14.02.2006, Muhammad Latif, 1475/HC (Moharrar of the police station) handed over to him one sealed parcel, which he deposited in the office of Chemical Examiner, Lahore. He has not stated that said parcel was at any time taken to Excise and Taxation Officer, Sialkot or was collected by him from Excise and Taxation Officer, Sialkot for depositing the same in the office of Chemical Examiner. Similarly, Muhammad Latif, 1475/HC (Moharrar of the police station) while appearing before the court as PW-3 stated that Munawar Khan, S.I.(PW-4) handed over parcel to him on 05.02.2006 and he handed over the same on 14.02.2006 to Shafaqat Ali, 940/C (PW-2) for its onward transmission to the office of Chemical Examiner, Lahore and he did not depose that said sealed parcel was ever sent to Excise and Taxation Officer, Sialkot or was received from the office of Excise and Taxation Officer, Sialkot.

This aspect has impaired and vitiated the conclusiveness and reliability of the report of Chemical Examiner, Punjab Lahore; in this regard, case of "Muhammad Abbas v. The State" (2006 YLR 2378)[Lahore], can be referred advantageously, relevant portion whereof is being reproduced below:

"The report of the Chemical Examiner (Exhibit-PE), however, shows that the docket of the samples of the recovered substance had been prepared on 06.07.1998 and the said samples had been dispatched by the Excise and Taxation Officer, Sheikhupura and not by the local police. We have required the learned counsel for the State to explain as to how the samples of the recovered substance had come in the hands of the Excise and Taxation Officer, Sheikhupura and what was the evidence available on the record to confirm that the same had been kept in safe custody while in possession of the Excise and Taxation Officer, Sheikhupura but after going through the record of this case from cover to cover he has categorically conceded that there is no evidence whatsoever available on the record in those respects. In such a state of the evidence available on the record safe custody of the recovered substance or its samples is not discernable from the record of this case and, thus, we have found it to be extremely unsafe to uphold and maintain the appellant's convictions and sentences recorded by the learned trial court."

Unreported judgment of Division Bench of this Court rendered in the case of "Munawar Hussain v. The State and others" (Crl. Appeal No.364-J of 2014) dated: 16.01.2019 can also be safely referred on the subject.

Furthermore, Munawar Khan, S.I. while appearing in the witness box as PW-4 categorically stated regarding availability of case property i.e. P-1/1-9 in the court at the time of recording of evidence; in this regard, relevant portion of his statement is hereby reproduced as under:-

"The alleged recovered 9 packets of chars P-1/1-9 was taken into possession vide recovery memo. Ex.P.B---."

Similarly, Ghulam Rasool, ASI while appearing in the court as PW-5 also deposed regarding availability of parcel of case property in the court as P-1 at the time of recording of his evidence; in this regard, relevant portion of his statement reads as under:-

"On the same day, Munawar Khan SHO/SI along with other police officials recovered charas P.1 from the accused Qamer Masih present in the court in my presence."

It is relevant to mention here that as per own case of prosecution, entire case property in this case was sent to the office of Chemical Examiner for analysis, however, prosecution did not produce any evidence to show that who and when brought it back from said office for production of the same before the court at the time of recording of evidence during trial of the case.

Therefore, safe custody and transmission of parcel of case property from police station to the office of Chemical Examiner, Punjab Lahore and then to court has not been proved in this case. Now law is well settled on the point that unbroken chain of "safe custody of allegedly recovered case property and parcel of sample" is to be proved otherwise, conviction is not possible and it is rightly so because recovery of narcotics is not a mere corroboratory piece of evidence rather it constitutes the offence itself and entails punishment. Guidance in this regard has been sought from the case of "The State through Regional Director Anf v. Imam Bakhsh" (2018 SCMR 2039); relevant portion whereof is being reproduced below: -

"Chain of Custody - Safe custody and safe transmission

1. We have noted above that in Criminal Appeals Nos.523 to 525/2017 and No.22/2018, safe custody and safe transmission of the alleged drug from the spot of recovery till its receipt by the Narcotics Testing Laboratory are not satisfactorily established. The chain of custody begins with the recovery of the seized drug by the Police and includes the separation of the representative sample(s) of the seized drug and their dispatch to the Narcotics Testing Laboratory. This chain of custody, is pivotal, as the entire construct of the Act and the Rules rests on the Report of the Government Analyst, which in turn rests on the process of sampling and its safe and secure custody and transmission to the laboratory. The prosecution must establish that the chain of custody was unbroken, unsuspicious, indubitable, safe and secure. Any break in the chain of custody or lapse in the control of possession of the sample, will cast doubts on the safe custody and safe transmission of the sample(s) and will impair and vitiate the conclusiveness and reliability of the Report of the Government Analyst, thus, rendering it incapable of sustaining conviction. This Court has already held in Amjad Ali v. State (2012 SCMR 577) and Ikramullah v. State (2015 SCMR 1002) that where safe custody or safe transmission of the alleged drug is not established, the Report of the Government Analyst becomes doubtful and unreliable.

20.----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------The representative samples of the alleged drug must be in safe custody and undergo safe transmission from the stage of recovery till it is received at the Narcotics Testing Laboratory"

(emphasis added)

In this regard, case of "Abdul Ghani and others v. The State and others" (2019 SCMR 608) can also be referred; relevant portion whereof is reproduced as under:-

"There is hardly any occasion for discussing the merits of the case against the appellants because the record of the case shows that safe custody of the recovered substance as well as safe transmission of samples of the recovered substance to the office of the Chemical Examiner had not been established by the prosecution in this case. Nisar Ahmed, S.I./SHO complainant (PW1) had stated before the trial court that he had deposited the recovered substance at the Malkhana of the local Police Station but admittedly the Moharrir of the said Police Station had not been produced before the trial court to depose about safe custody of the recovered substance. It is also not denied that Ali Sher, H.C. who had delivered the samples of the recovered substance at the office of the Chemical Examiner had also not been produced during the trial so as to confirm safe transmission of the samples of the recovered substance. It has already been clarified by this Court in the cases of 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) that in a case where safe custody of the recovered substance or safe transmission of samples of the recovered substance is not proved by the prosecution through independent evidence there it cannot be concluded that the prosecution had succeeded in establishing its case against the appellants beyond reasonable doubt. The case in hand suffers from the same legal defects. This appeal is, therefore, allowed, the convictions and sentences of the appellants recorded and upheld by the courts below are set aside and they are acquitted of the charge by extending the benefit of doubt to them. They shall be released from the jail forthwith if not required to be detained in connection with any other case."

(emphasis added)

2025 Y L R 367

[Lahore (Bahawalpur Bench)]

Before Sadiq Mahmud Khurram, J

Allah Wadhaya---Appellant

Versus

The State---Respondent

Criminal Appeal No. 576-J-LD of 2017, heard on 8th October, 2024.

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

----Ss. 376 & 363---Rape, kidnapping---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for kidnapping the daughter of complainant and committing rape with her---Record showed that the prosecution witness/victim, was cross-examined by the defence but her evidence relating to the fact of her being raped by the appellant had not been shaken at all---Moreover, it had been fully established by the statement of the prosecution witness/victim that the appellant raped her---Report of Forensic Science Agency, according to which the DNA Profile of the appellant was found present on the shalwar of victim, also lent support to the charge of rape against the appellant---Evidence of Medical Officer also fully supported the statement of victim that she was raped by the appellant---Circumstances established that the prosecution had proved its case against the accused to the extent of committing rape with the victim, however due to mitigating circumstances, the sentence of imprisonment for life awarded to the appellant under S.376(1), P.P.C. was reduced to that of rigorous imprisonment of ten years---Appeal against conviction was dismissed with modification in sentence.

(b) Criminal trial---

----Discrepancies and improvements in the statement of witnesses---Scope---In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence---Where the omissions amount to a contradiction, creating serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon---However, minor contradictions, inconsistencies, embellishments or improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety.

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

----Ss. 376, 365-B & 363---Rape, kidnapping---Appreciation of evidence---Abduction of the victim not established---Accused was charged for kidnapping the daughter of complainant and committing rape with her---Prosecution witness/victim had successfully evidenced her credibility, therefore the trial Court was quite justified to rely on her while finding the appellant guilty---Intention of the accused was the basis and the gravamen of an offence under S.376, P.P.C.---Consequently, there was no hesitation in holding that the trial Court rightly convicted the appellant for the offence punishable under S.376(1), P.P.C.---With regard to the conviction of the appellant under S.365-B P.P.C., the prosecution could not prove the said charge against the appellant---Trial Court itself rejected the statement of the prosecution witness who had stated that on 23.10.2014 at about 08.00 a.m. he had seen the appellant abducting, the victim---According to the statement of victim, when she was abducted by the appellant, said witness was not present at the said time and place---Furthermore, said witness, though being very closely related to victim, made no effort either to stop the abduction of victim or even to follow the appellant who was taking away the victim---No one from the locality supported the said charge of abduction levelled against the appellant---Trial Court also observed that complainant was not a witness of the said abduction---With regard to the part of the statement of victim that she was abducted by the appellant, the same was doubtful and contradictory to the attending circumstances---Therefore, the appellant could not have been convicted for the offence punishable under S.365-B, P.P.C.---Circumstances established that the prosecution had proved its case against the accused to the extent of committing rape with the victim, however due to mitigating circumstances, the sentence of imprisonment for life awarded to the appellant under S.376(1), P.P.C. was reduced to that of rigorous imprisonment of ten years---Appeal against conviction was dismissed with modification in sentence.

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

----Ss. 376 & 363---Rape, kidnapping---Appreciation of evidence---Sentence, reduction in---Mitigating circumstances---Accused was charged for kidnapping the daughter of complainant and committing rape with her---Record showed that the appellant suffered the rigours of a protracted trial and it had also been observed that it seemed likely that the appellant would have mended his conduct in those years---Counsel for the appellant on appellant's instructions, had earnestly and humbly prayed that the appellant may be given a chance to rehabilitate---Appellant was the sole earner in his family and his incarceration for an extended period would result in cutting off the lifeline available to his family---No proof was available that the appellant was a man of means---As such, the case of the appellant called for a lenient view in the matter of the quantum of sentence awarded to him under S.376(1), P.P.C.---Consequently, while maintaining the conviction of the appellant under S.376(1), P.P.C., the sentence of imprisonment for life awarded to the appellant under S.376(1), P.P.C. was reduced to that of rigorous imprisonment of ten years---Appeal against conviction was dismissed with modification in sentence.

Naseem Khan v. The State 2021 SCMR 1771; Mst. Sughran v. State 2021 SCMR 109; Niaz ud Din v. The State 2007 SCMR 206; Shaukat Ali alias Billa v. The State 2015 SCMR 308 and State through the Deputy Director (Law), Regional Directorate, Anti-Narcotics Force v. Mujahid Naseem Lodhi PLD 2017 SC 671 rel.

Farooq Haider for Appellant.

Najeeb Ullah Jatoi, Deputy Prosecutor General for the State.

Date of hearing: 8th October, 2024.

Judgment

Sadiq Mahmud Khurram, J.---Allah Wadhaya son of Ahmad Bakhsh (convict) was tried by the learned Additional Sessions Judge, Kehror Pacca in case FIR No.587 of 2014, dated 24.10.2014, registered at Police Station City Kehror Pacca, District Lodhran in respect of offences under sections 376 and 363 of Pakistan Penal Code, 1860. The learned trial court vide judgment dated 12.01.2017 convicted Allah Wadhaya son of Ahmad Bakhsh (convict) and sentenced him as infra:-

Allah Wadhaya son of Ahmad Bakhsh:

1) Imprisonment for life under section 376(1) of the Pakistan Penal Code,1860 and directed to pay fine of Rs.200,000/-, and in case of default of payment of fine, the convict was directed to undergo, simple Imprisonment of two years further.

2) Imprisonment for life under section 365-B of the Pakistan Penal Code,1860 and directed to pay fine of Rs.200, 000/-, and in case of default of payment of fine, the convict was directed to undergo simple Imprisonment of two years further.

The convict was extended benefit available under Section 382-B of the Code of Criminal Procedure. 1898 by the learned trial court. Both the sentences awarded to the convict were ordered to run concurrently by the learned trial court .

1. Feeling aggrieved, Allah Wadhaya son of Ahmad Bakhsh (convict) lodged the instant Criminal Appeal No.576-J-LD of 2017 assailing his conviction and sentence.

2. The brief facts of the prosecution case, as stated by Mst. Maria Murad (PW-2), the victim of the case, in her statement before the learned trial court, are as under:-

"On 23.10.2014 at about 8:00 AM I was going to school when I reached near Nagina Cinema accused Allah Wadhaya armed with pistol with an unknown person came and took me forcibly to an unknown place on motorcycle. After some time that unknown person alighted from motorcycle. Accused Allah Wadhaya forcibly committed rape with me. After four days I escaped from that unknown place and came to my home. My parents took me to P.S and then to Hospital. My statement was recorded in P.S. My medical examination was got conducted."

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 was sent to face trial. The learned trial court framed the charge against the accused on 04.02.2015 to which the accused pleaded not guilty and the learned trial court proceeded to examine the prosecution witnesses.

2. The prosecution in order to prove its case got recorded statements of as many as nine witnesses. Mst. Maria Murad (PW-2), the prosecutrix narrated the facts of the occurrence. Muhammad Murad (PW-1) stated that on 24.10.2014, he submitted the written application (Exh.PA) for the registration of the case in respect of abduction of Mst. Maria Murad (PW-2). Zafar Iqbal (PW-3) stated that on 23.10.2014, he had witnessed the appellant abducting Mst. Maria Murad (PW-2). Abdul Hameed, SI (PW-9) investigated the case from 24.10.2014 till 01.11.2014, arrested the appellant on 29.10.2014 and detailed the facts discovered during the investigation of the case in his statement before the learned trial court.

3. The prosecution also got Dr. Mumtaz Kamal (PW-4) examined, who on 27.10.2014 was posted as a Woman Medical Officer at THQ hospital Kehror Pacca and on the same day, conducted the medical examination of the victim namely Mst. Maria Murad (PW-2). Dr. Mumtaz Kamal (PW-4), after examining Mst. Maria Murad (PW-2), observed as under:-

"Local examination.

Locally found blackish flaps of labia admit two fingers loose. minora and vagina

..........

Opinion.

My opinion is that there was penetration occurred completely. Those swabs do not match with the findings of local examination. After medical examination I issued MLC the carbon copy of which is Ex.PD that is in my hand and bear my signature. I also attested injury statement of Ex.PD/1."

The prosecution also got Dr. Ihsan Ali (PW-5) examined who stated that he had examined the appellant on 01.11.2014 and found him capable of having sexual intercourse.

1. On 25.04.2016, the learned Assistant District Public Prosecutor tendered in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PJ) and other documents (Exh.PK and Exh.PL).On 26.05.2016, the learned Assistant District Public Prosecutor closed the prosecution evidence after tendering, in evidence the report of Punjab Forensic Science Agency, Lahore (Exh.PM)

2. After the closure of prosecution evidence, the learned trial court examined the appellant Allah Wadhaya son of Ahmad Bakhsh, under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he stated that he had been falsely involved in the case. The appellant opted to get himself examined under section 340(2), Cr.P.C and did not adduce any evidence in his defence.

3. On the conclusion of the trial, the learned Additional Sessions Judge, Kehror Pacca, convicted and sentenced the appellant as referred to above.

4. The contention of the learned counsel for the appellant precisely was that with regard to the abduction of Mst. Maria Murad (PW-2), there was not sufficient evidence, however, with regard to the conviction of the appellant under section 376(1), P.P.C., the learned counsel for the appellant sought a reduction in the quantum of imprisonment awarded to the appellant.

5. On the other hand, the learned Deputy Prosecutor General contended that the prosecution had proved its case beyond a shadow of doubt by producing independent witnesses. The learned Deputy Prosecutor General further submitted that it was a heinous offence and exploited the victim's future by the appellant at the expense of his lust: that it could not be expected from the victim to put her future at stake for any reason to falsely implicate the appellant in this case for nothing; that delay in reporting the matter to the police had no adverse effect on the fate of the prosecution case because in the cases where family honour was involved, immediate rushing to the police station for lodging the crime report and putting the honour at stake, was always difficult for anybody; that the medical evidence provided further corroboration to the Ocular account; that the impugned judgment entailing the conviction and sentence of the appellant did not warrant interference by this Court. Lastly, the learned Deputy Prosecutor General prayed for the rejection of the appeal.

2025 Y L R 378

[Lahore]

Before Shakil Ahmad, J

Waseem---Petitioner

Versus

The State and another---Respondents

Crl. Misc. No. 63668-B of 2024, decided on 28th October, 2024.

Criminal Procedure Code (V of 1898)---

----S. 497---Penal Code (XLV of 1860), Ss. 376, 377B & 511---Attempted rape---Bail, refusal of---Allegation against accused/petitioner was that he attempted to commit sodomy with the minor son of the complainant---Accused/petitioner was named in the FIR with specific role of making an attempt to commit sodomy with minor son of complainant---As per contents of the FIR, the victim was rescued after raising an uproar, which drew the attention of the witnesses at the spot---Victim, in the instant case, had fully implicated the accused/petitioner in his statement recorded under S.161, Cr.P.C on the day of occurrence and also ascribed accused/petitioner specific role of attempting to commit sodomy with him in his statement recorded under S.164, Cr.P.C.---Contents of FIR in addition to the statement of the minor victim recorded under S.164, Cr.P.C, when taken on their face value, ex facie linked the accused/petitioner with the commission of crime falling within the purview of S.377B, P.P.C entailing the punishment that fell within the ambit of prohibitory clause of S.497(1), Cr.P.C.---Moreover, there existed reasonable grounds for believing that accused/ petitioner had committed an offence falling within the ambit of prohibitory clause of S.497(1) of Cr.P.C.---No case of post arrest bail at all was made out---Petition was dismissed, in circumstances.

Mubeen Ahmed v. The State and another PLD 2021 Islamabad 431 rel.

Ch. Zulqarnain Baryar for Petitioner.

Ms. Tahira Yasmeen, District Public Prosecutor with Sumaira Bashir Inspector for the State.

Complainant in person.

Order

Shakil Ahmad, J.---This is a petition that has been filed under Section 497, Cr.P.C. by Waseem (accused/ petitioner) seeking post arrest bail in case FIR No.381 of 2024 dated 11.08.2024 registered at Police Station Noor Kot, District Narowal for the offences under Sections 376(iii)/511 of Pakistan Penal Code, 1860 ("P.P.C."). Earlier application of the petitioner for the same relief was dismissed by learned Additional Sessions Judge, Narowal vide order dated 09.09.2024.

1. Allegation, in a nutshell, against accused/petitioner is that he attempted to commit sodomy with the minor son (aged 13 years) of the complainant.

2. Having heard learned counsel for the petitioner, learned DPP and upon tentative assessment of the material available on the record, it has been straightaway noticed that accused/ petitioner is named in the FIR with specific role of making an attempt to commit sodomy with minor son of complainant. Learned counsel for the accused/petitioner submitted that allegation so raised against the accused/ petitioner is not supported by any medical evidence, therefore, he is entitled to grant of bail particularly where allegation against him was merely an attempt to commit sodomy. This stance of learned counsel for the accused/petitioner is simply misconceived and is not tenable for the reason that the act of sodomy has not been alleged to have completed as merely an allegation of attempt of sodomy has been raised against the accused/petitioner. As per contents of the FIR, the victim was rescued after raising an uproar, which drew the attention of the PWs at the spot. It may further be seen that section 377A of P.P.C. has been introduced in the P.P.C. through Criminal Law (Second Amendment), Actm 2016 which contemplates the offense of "sexual abuse," punishable under Section 377B of P.P.C.. Before delving into the theme, scope and extent of provisions of section 377A of P.P.C., it seems apt to have a glance at the provisions of sections 377A and 377B of P.P.C., same are reproduced hereunder for the facility of ready reference:-

"377A. Sexual abuse.-Whoever employs, uses, forces, persuades, induces, entices, or coerces any person to engage in, or assist any other person to engage in fondling, stroking, caressing, exhibitionism, voyeurism or any obscene or sexually explicit conduct or simulation of such conduct either independently or in conjunction with other acts, with or without consent where age of person is less than eighteen years, is said to commit the offence of sexual abuse.

377B. Punishment. Whoever commits the offence of sexual abuse shall be punished with imprisonment of either description for a term which shall not be less than fourteen years and may extend up to twenty years and with fine which shall not be less than one million rupees."

Plain reading of provisions of section 377A of P.P.C. reflects that the term 'sexual abuse' does not explicitly contemplate commission or consummation of rape or sodomy with the victims below the age of 18 years. This distinction appears to be appropriate for the reason that the moment an act of rape is alleged to have been committed with a minor below the age of 16 years the matter would come out of the domain of section 377A of P.P.C. and fall squarely under the provisions of section 376(3) of P.P.C. entailing the more stringent punishment of death or imprisonment for life or fine. The term "sexual abuse," as outlined in section 377A of the P.P.C., has a broader and more comprehensive definition than simply referring to 'an attempt to commit an act of sodomy or rape' as it includes certain acts and behaviors leading to any obscene or sexually explicit conduct either independently or in conjunction with other acts with or without consent of a victim below the age of 18 years. As per provisions of section 377A of P.P.C., an act of employing, using, forcing, persuading, inducing, enticing or coercing any person to engage in fondling, stroking and caressing any obscene or sexual explicit conduct either independently or in conjunction with other acts with or without consent of a victim less than 18 years would be considered and counted as the crime of sexual abuse as punishable under section 377B of the P.P.C. entailing minimum sentence of fourteen years that may extend up to twenty years with fine which shall not be less than one million rupees. In case "Mubeen Ahmed v. The State and another" (PLD 2021 Islamabad 431), it has been observed that the provisions of sections 337A and 377B of P.P.C. have been incorporated through Criminal Law (Second Amendment), Act, 2016 in order to ensure that Pakistan fulfills its obligations under the United Nations' Convention on Rights of Child as ratified in the year 1990. It has further been observed in the case referred supra, as under:-

"8. Article 34 of the United Nations' Convention on Rights of Child that had inspired the creation of the offence of sexual abuse in Pakistan. The object of introducing section 377A of P.P.C. is to protect children who form a vulnerable segment of the society and are unable to guard against and comprehend the consequences of actions of others (and the consequences of even their own actions). It is for this purpose that through promulgation of section 377A, the State has assumed the obligation to protect children from any form of sexual abuse. …"

2025 Y L R 385

[Lahore (Rawalpindi Bench)]

Before Muhammad Sajid Mehmood Sethi, J

Naeem Iqbal Khan---Petitioner

Versus

Mst. Fateh Khatoon and others---Respondents

Civil Revision No. 4686 of 2016, heard on 19th September, 2024.

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

----Ss.7, 8 & 54---Specific Relief Act (I of 1877), Ss.42, 12 & 54---Suit for declaration along with permanent injunction and specific performance of agreement to sell---Transfer of immovable property---Execution of unregistered sale deeds by the vendor without having any title in the property in dispute---Person, who does not own a property, is not entitled to transfer it to another party---Section 7 of the Transfer of Property Act, 1882, authorizes only the rightful owner to transfer property, ensuring that one cannot convey what it does not possess---Law also stipulates that any transfer made without the owner's consent is void, which is vital for protecting property rights and ensuring legal clarity in transactions.

Maulana Abdul Haque Baloch and others v. Government of Balochistan through Secretary Industries and Mineral Development and others PLD 2013 SC 641; Muhammad Bashir v. Haji Muhammad Saiddique and others 1997 MLD 3263, Muhammad Shabbir v. Sub-Registrar Peshawar District Court, Peshawar and 3 others PLD 2011 Peshawar 228 and S.M. Shoaib Baghpati v. Umar Gulaga and 3 others PLD 2015 Sindh 481 rel.

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

----S.54---Registration Act (XVI of 1908), Ss.17 & 49---Transfer of immovable property---Non-registration of documents compulsorily registerable---Such sale deeds /documents would not confer any right, title or interest regarding the immovable property in question---Any document which is required to be registered in terms of S.17 of the Registration Act, 1908 (Act), if not registered, would not operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent to or in immovable property or confer any power to adopt in view of S.49 of the Act.

Mst. Farida Malik and others v. Dr. Khalida Malik and others 1998 SCMR 816; Muhammad Sadiq v. Muhammad Ramzan and 8 others 2002 SCMR 1821; Ali Rehman v. Fazal Mehmud and 8 others 2003 SCMR 327 and Muhammad Iqbal and others v. Mst. Baseerat and others 2017 SCMR 367 rel.

Abdul Majeed Khan Yaru Khel and Nadir Majeed Khan for Petitioner.

Date of hearing: 19th September, 2024.

Judgment

Muhammad Sajid Mehmood Sethi, J.---Through instant revision petition, petitioner has assailed vires of judgments and decrees dated 11.09.2014 and 02.09.2016, passed by learned Civil Judge and Additional District Judge, Piplan, respectively, whereby petitioner's suit for declaration along with permanent injunction and specific performance of agreement to sell, was concurrently dismissed.

1. Brief facts of the case are that petitioner instituted a suit for declaration along with permanent injunction and specific performance of agreement to sell, which was contested by respondents by way of filing written statement. Learned Trial Court, after framing issues, recording evidence of petitioner (as respondents' right to produce evidence was closed vide order dated 15.07.2014) and hearing arguments of both sides, proceeded to dismiss the suit vide judgment and decree dated 11.09.2014. Feeling dissatisfied, petitioner filed appeal before learned Additional District Judge, who vide ex-parte judgment and decree dated 02.09.2016 (as respondents were proceeded against ex-parte on 02.09.2015), dismissed the same. Hence, this revision petition.

2. Learned counsel for petitioner submits that there was an agreement between petitioner and Muhammad Nawaz Khan, the predecessor-in-interest of respondents, who agreed to sell the suit house and after receipt of Rs. 10,000/-, executed 100 unregistered sale deeds (Rs. 99,95 per sale deed) in favour of petitioner. When asked as to whether said Muhammad Nawaz Khan was owner of the property who entered into agreement with the petitioner, he frankly conceded that no such document showing his title has been brought on record.

3. The petitioner claims ownership of suit property measuring 02-Kanal along with constructed house with three rooms, on the basis of unregistered sale deeds purportedly signed by Muhammad Nawaz Khan, the predecessor-in-interest of the respondents. However, there was no evidence to establish ownership or title of said Muhammad Nawaz Khan qua the suit property, thus, he was not legally competent to further transfer the same in favour of petitioner. It is well-established that a person who does not own a property is not entitled to transfer it to another party. According to Section 7 of the Transfer of Property Act, 1882, only the rightful owner has the authority to transfer property, ensuring that one cannot convey what it does not possess. Furthermore, the law also stipulates that any transfer made without the owner's consent is void. This principle is vital for protecting property rights and ensuing legal clarity in transactions.

2025 Y L R 392

[Lahore (Rawalpindi Bench)]

Before Sadaqat Ali Khan and Ch. Abdul Aziz, JJ

Habib-ur-Rehman---Appellant

Versus

The State and another---Respondents

Criminal Appeal No. 162 of 2024, heard on 4th April, 2024.

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

----S. 9(1)3(c)---Possession and transportation of 1100 grams charas---Appreciation of evidence---Benefit of doubt---Prosecution case was that 1100 grams charas was recovered from the possession of appellant---In the case in hand, it was noticed that according to the claim of the prosecution the shopping bag, from which the contraband substance was recovered, was held by the appellant in his right hand---However, during cross-examination, complainant admitted in unequivocal terms that the appellant was paralyzed and his right hand was not working---Said aspect created serious doubt in the prosecution story---According to the prosecution case the charas was recovered from a blue coloured shopping bag but perusal of recovery memo. revealed that the said shopping bag was not taken into possession by the complainant-Police Officer nor was exhibited during trial---From such anomalies a reasonable doubt emerged about the guilt of appellant---Appeal was allowed, in circumstances.

Malik Matee Ullah and Yasir Sultan Yousafzai for Appellant.

Naveed Ahmad Warraich, DDPP with Inayat SI for the State.

Date of hearing: 4th April, 2024.

Judgment

Ch. Abdul Aziz, J.---Habib-ur-Rehman (appellant) involved in case FIR No.304/2023 dated 08.09.2023 registered under Section 9(1)3c of CNSA (Amended), 2022 at Police Station Kamar Mushani, was tried by learned Additional Sessions Judge/Judge Special Court (CNSA) Isa Khel. Trial court vide judgment dated 18.01.2024 proceeded to convict and sentence the appellant in the following terms:-

Under Section 9(1)3c of CNSA, 1997 to suffer rigorous imprisonment for 09-years with the direction to pay Rs.80,000/- as fine and in default whereof to further undergo simple imprisonment for 06-months.

The benefit of Section 382-B of Cr.P.C., however, was extended in favour of the appellant.

2025 Y L R 405

[Lahore]

Before Faisal Zaman Khan, J

Amaan Knitwear's through Managing Partner---Appellant

Versus

Sui Northern Gas Pipe Line through Managing Director and others---Respondents

R.F.A. No. 62247 of 2021, heard on 4th September, 2024.

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

----S. 11 & O.XVII, R.3---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 4 & 13---Res judicata, principle of---Scope---Gas Utility Court dismissed the suit for declaration etc, filed by the appellant (Knitwear Unit) was hit by principle of res judicata---Objection raised by the respondents (Gas Company) was that previously on the same subject matter an identical suit instituted by the appellant against the respondents, was dismissed---Validity---Record revealed that the bill amounting to Rs. 18,888,620/- of one month issued by the respondents was challenged by the appellant through the present lis---Admittedly, on the same subject an identical suit was instituted by the appellant, butthe same (suit) was dismissed under O. XVII, R. 3, C.P.C since appellant failed to produce its evidence despite repeated opportunities---Instead of challenging the said judgment, appellant, after about five months of said dismissal, opted to file a fresh suit (present lis)---Appellant admitted the dismissal of the previous suit yet asserted the maintainability of the fresh/second suit, attributing the dismissal to the counsel, who was representing the appellant in the previous suit, confending that he (counsel) did not inform regarding production of evidence---Thus, on the same subject matter, previously filed identical suit stood dismissed for want of evidence and the said judgment and decree was never assailed by the appellant before any court or fora, hence, the same had attained finality---Sufficient opportunities were afforded to the appellant for producing his evidence and defending his case in the previous round of litigation but the appellant had failed to do so, hence, the appellant could not be allowed to re-open a past and closed chapter in a fresh/new suit---Hence, the subsequent suit filed by the appellant was squarely hit by principle of res judicata as envisaged in S.11, C.P.C.---Utility Court had rightly passed the impugned order and decree---No substantial error or defect of law had been noticed in the impugned order and decree passed by the Gas Utility Court---Appeal,being merit-less, was dismissed.

Muhammad Raqeeb v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others 2023 SCMR 992 and Mustafa Kamal and others v. Daud Khan and others PLD 2004 SC 178 ref.

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

----S. 11 & O.XVII, R.3---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 4 & 13---Res judicata, principle of---Scope---Gas Utility Court dismissed the suit for declaration, etc; filed by the appellant ( Knitwear Unit) being hit by principle of res judicata---Argument advanced by the appellant was that since the previous suit was dismissed under O.XVII, R.3, C.P.C., and no adjudication was made on merits, a subsequent suit was maintainable---Validity---A judgment passed while invoking the provision of O.XVII, R.3, C.P.C., shall be construed to be a judgment on merits and principle of res judicata shall be squarely applicable to any subsequent/fresh suit, thus, the argument of the appellant was not tenable---No substantial error or defect of law had been noticed in the impugned order and decree passed by the Gas Utility Court---Appeal,being merit-less, was dismissed.

Shahid Hussain v. Lahore Municipal Corporation PLD 1981 SC 474; Niaz Ahmad Khan v. Khishwar Begum and 19 others PLD 2003 Lahore 48; Muhammad Amin and others v. WAPDA through Chairman and others 2015 MLD 1327; Ghulam Haider v. Mst. Rasoolan and another 2001 MLD 1603 and Shah Muhammad and another v. Hafiza Begum and 2 others 2000 MLD 404 ref.

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

----S.11---Gas (Theft Control and Recovery) Act (XI of 2016), Ss. 4 & 13---Cause of action, recurring of---Principle of res judicata---Scope---Gas Utility Court dismissed the suit for declaration, etc, filed by the appellant ( Knitwear Unit) being hit by principle of res judicata---Argument advanced by the appellant was that the cause of action was recurring, therefore, subsequent suit could be instituted---Validity---Initially the bill of relevant month was issued to the appellant for making payment thereof and since it had failed to make payment, thus, in every subsequent bill the amount, which had been mentioned in the bill for the said month, would be reflected as arrears and once the initial bill issued was assailed before the Court of competent jurisdiction and the same was upheld (for whatever reasons) subsequent bills reflecting arrears would not give a fresh cause of action to the appellant to assail the same---No substantial error or defect of law had been noticed in the impugned order and decree passed by the Gas Utility Court---Appeal being merit-less, was dismissed.

Barrister Karim Ullah Sraw for Appellant.

Aamir Malik for Respondents.

Date of hearing: 4th September, 2024.

Judgment

Faisal Zaman Khan, J.---Through this regular first appeal under Section 13 of the Gas (Theft, Control and Recovery) Act, 2016 order and decree dated 24.06.2021 passed by the learned Additional District Judge/Gas Utility Court, Lahore has been assailed, whereby suit for declaration etc. filed by the appellant has been dismissed being hit by principle of res judicata.

1. Succinctly, the fact of the case are that in order to assail the bill for consumption of gas issued by the respondents for the month of May, 2010 amounting to Rs.18,888,620/-, a suit for declaration with mandatory and permanent injunction was instituted by ithe appellant against the respondents, in which the latter was granted leave to defend the suit whereafter the issues were framed. During the course of proceedings of the suit, an objection was raised by the respondents that previously on the same subject matter an identical suit was also instituted by the appellant against the respondents, which was dismissed, hence, the subsequent suit is not maintainable, whereupon, both the parties were afforded opportunity of hearing and through the impugned order and decree the suit was dismissed being hit by principle of res judicata, hence, this appeal.

2. Learned counsel for the appellant submits that since the previous suit was dismissed under Order XVII Rule 3, C.P.C. and no adjudication was made on merits, therefore, a subsequent suit is maintainable. He places reliance on judgments reported as Muhammad Chuttal v. Atta Muhammad through L.Rs. (2007 SCMR 373), Production Engineer PPL, I/C, Kandhkot and 4 others v. Azizullah and 5 others (PLD 2024 Sindh 259) and Gohar Aman v. Shah Nazim (2022 MLD 1583). Further adds that it was a recurring cause of action, therefore, even otherwise, the subsequent suit was maintainable.

3. Replying to the above, learned counsel for the respondents while relying on a judgment of the Supreme Court of Pakistan reported as Muhammad Afzal Khan v. Muhammad Aslam (deceased) through L.Rs. (2022 SCMR 1275) submits that a subsequent suit on the same subject matter is not maintainable.

4. Arguments heard. Record perused.

5. From the perusal of the available record, it transpires that the bill amounting to Rs.18,888,620/- was issued by the respondents for the month of May, 2010 was challenged by the appellant through the present lis. It is admitted by the parties that on the same subject matter an identical suit was instituted by the appellant, in which on 03.10.2011 leave to defend the suit was granted to the respondents, whereafter, out of divergent pleadings of the parties as many as 04 issues were framed, but despite repeated opportunities, since appellant failed to produce its evidence, therefore, vide judgment and decree 10.05.2017 the suit was dismissed under Order XVII Rule 3 C.P.C. Instead of challenging the said judgment, appellant on 19.10.2017 opted to file a fresh suit (present lis) and in paragraph No.2 thereof, this fact has been admitted as the dismissal of the previous suit has been attributed to the counsel, who was representing the appellant in the previous suit that he did not inform it, therefore, inadvertently the evidence could not be produced, hence, the fresh/second suit was maintainable.

6. From the above factual matrix it is abundantly clear that on the same subject matter as has been highlighted in the present lis the appellant previously filed an identical suit before the Gas Utility Court, Lahore, which stood dismissed for want of evidence and the said judgment and decree was never assailed by the appellant before any court or fora, hence, the same has attained finality and since sufficient opportunities were afforded to the appellant for producing his evidence and defending his case in the previous round of litigation and it has miserably failed to do so, hence, the appellant cannot be allowed to re-open a past and closed chapter in a fresh/new suit, hence, the subsequent suit filed by the appellant squarely hit by principle of res judicata as envisaged in Section 11, C.P.C. and as interpreted by the Supreme Court of Pakistan in judgments reported as Muhammad Raqeeb v. Government of Khyber Pakhtunkhwa through Chief Secretary, Peshawar and others (2023 SCMR 992) and Mustafa Kamal and others v. Daud Khan and others (PLD 2004 SC 178), hence, the court below has rightly passed the impugned order and decree.

7. As regards argument advanced by the learned counsel for the appellant that since the previous suit was dismissed under Order XVII Rule 3, C.P.C. and no adjudication was made on merits, therefore, a subsequent suit is maintainable, the same is not tenable for the reason that it is settled proposition of law that a judgment passed while invoking the provision of Order XVII Rule 3, C.P.C. shall be construed to be a judgment on merits and principle of res judicata shall be squarely applicable to any subsequent/fresh suit. For reference reliance can be placed on judgments reported as Shahid Hussain v. Lahore Municipal Corporation (PLD 1981 SC 474), Niaz Ahmad Khan v. Khishwar Begum and 19 others (PLD 2003 Lahore 48), Muhammad Amin and others v. WAPDA through Chairman and others (2015 MLD 1327), Ghulam Haider v. Mst. Rasoolan and another (2001 MLD 1603) and Shah Muhammad and another v. Hafiza Begum and 2 others (2000 MLD 404).

2025 Y L R 427

[Lahore]

Before Muhammad Amjad Rafiq, J

Usama Ali---Appellant

Versus

The State---Respondent

Criminal Appeal No. 77969-J and Criminal Revision No. 62123 of 2019, decided on 24th December, 2024.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Last seen evidence doubtful---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Case of the prosecution was structured through last seen evidence as a first clue for the involvement of accused/appellant, which was deposed by two witnesses, cousins inter se and relative of complainant---One witness was a fruit vendor and other a property dealer---One of the witnesses was simply a fruit vendor and had no hand or share in property business of other witness---Presence of said witness in the month of Ramadhan at 8.30 p.m. in town for the purpose of observing an activity of plotting was nothing but a story---Occurrence took place in the month of June and both the witnesses were not expected to be there at 8.30 p.m., that too in the month of Ramadhan when Muslims were busy in offering their Esha prayer followed by Taravih---No mosque was there in town that could justify that after offering Esha prayer said witnesses were walking from town to bank of canal which was allegedly at a distance of ½ kilometer---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Night time occurrence---Source of light---Identity of the accused not proved---Accused was charged for committing murder of the son of complainant along with his two friends by firing---In the present case, site plan did not indicate any road leading to stadium or the town---Both the witnesses neither had shown their place of presence to the police nor police had sketched or photographed that place---As per statement of one witness, they did not go to western bank of canal---No proof of light was provided on the western bank of canal---If some acquaintance of a witness with accused/appellant was conceded, he was not expected to have identified the accused from a distance with intervening canal and that too in a dark night, because source of light as deposed was at a distance of ½ kilometer---Testimony of said witness did not inspire confidence as his presence at acclaimed place was highly doubtful---Other witness admitted that during the period at canal, no one from the public met them, and no vehicle was passing thereby at the relevant time---Said witness also conceded that he did not know the person whom they visited in the City---Surprisingly, said witnesses made the statement on 25.06.2016 to the police but complainant had already nominated the accused/appellant on 24.06.2016---As per testimony of said witness, he had received information of murders on 24.06.2016 but did not contact the complainant (his maternal uncle) or witnesses on phone on the said day despite the fact that his two brothers were also witnesses in the case---Thus, present two witnesses were installed by the prosecution in support of the complainant who suspected involvement of accused/appellant---Prosecution had not opted to procure Call Data Record (CDR) of those witnesses to justify their acclaimed presence near canal at the relevant time---Said witnesses had not seen the commission of murder by the accused/appellant---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Circumstantial evidence---Evidence created/planted on crime scene to implicate accused---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Circumstantial evidence, in the form of DNA matching with some hair in the clenched palm of one of the deceased and on swabs taken from shoe, was mind-boggling evidence and raised many question that how such evidence was collected and procured by the police---First eye brow raiser was the situation in which dead bodies were lying on the place of occurrence---An impression was created that deceased were targeted when they were on motorcycle and after sustaining injuries they fell down on the ground, because snaps of place of murder as well as statements of witnesses showed that motorcycle was lying over the dead body of one of thedeceased, but surprisingly no blood spots or splashing on the motorcycle were found, which fact was conceded by Investigating Officer---Furthermore, Medical Officer had also not observed any injury on the body of deceased due to fall from motorcycle---Medical Officer had also observed no blackening or burning around the injuries of any of the deceased which showed that deceased were hit from quite a distance---When the accused was not within the reach of deceased, some hair in the clenched palm of deceased had no meaning---Similarly, when nobody had seen the accused committing murder, showing that accused ran in haste while leaving his left shoe at the place of occurrence was a story that might not find a buyer---Official witness/Constable, on call, reached the place of occurrence and photographed the dead bodies, but stated that none of the pictures showed the recovery of human hair from the fist of deceased---Investigating Officer admitted that there was no reference of capturing hair by dead body of deceased in his injury statement prepared by him---Said witness also stated that no photograph of fist of deceased was captured, wherein, he was carrying hair---Said witness had not found in said snaps any shoe near or around the dead bodies of deceased persons---Thus, evidence was created to book the accused/appellant---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Identification and comparison of recovered shoes of accused doubtful---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Identification and comparison of recovered shoes of accused/appellant was yet another issue with the prosecution---Investigating Officer deposed that on 19.09.2016, he was present in HIU Office when two witnesses appeared before him and joined the investigation to whom he showed one right shoe which was recovered by him on the lead of accused/appellant---After comparison and identification by the witnesses that both shoes were of same person, he prepared memo. of identification duly signed by the witnesses---Arrangement for identification of shoes was not recognized by law, particularly when Investigating Officer admitted that the chappal (sandal) of rubber/leather was not compared by him from the accused and also could not tell the size and company of rubber shoe---Investigating Officer had not recorded the statement of any witness who could have deposed about the fact that they had seen the accused/appellant wearing such shoes on such and such occasion---Moreover, there were so many shoes of the same company owned by many other persons---Thus, prosecution had failed to prove that recovered shoes belonged to the accused/appellant---Appeal against conviction was allowed, in circumstances.

Mehr Ali and others v. The State 1968 SCMR 161; Muhammad Tayyab and another v. The State and others 2023 YLR 2207 and Qamar Abbas Shah v. The State 2012 YLR 2663 rel.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Place of murder doubtful---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Investigating Officer deposed that a prosecution witness deposed before him that deceased persons were murdered somewhere else but their dead bodies were shifted at the alleged place of occurrence later on---Said reference showed that laymen like complainant and witnesses after viewing the condition of dead bodies and articles lying near them, did observe that it was not the place of murder, then it was not expected that Investigating Officer, being an expert witness, had overlooked such fact---Best course, in the situation was lifting of finger prints from the mobile, shoes of deceased and spent shells so as to rule out any interference with the articles, but by failing to do such exercise police had further made place of murder as doubtful---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Polygraph test---Scope---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Prosecution in this case though had made an effort to procure evidence in the form of polygraph test but surprisingly expert did not conduct it due to the reason that accused/appellant allegedly confessed his guilt before him---It was claimed that confession was recorded by expert separately---Expert was not a Magistrate so as to give words to the alleged confession rather was under duty to conduct polygraph test even in this situation in order to ascertain the truth of such confession---Polygraph test is an effective tool to provide evidence of facts coming from the mouth of an accused---Refusal by expert to conduct the polygraph test created doubt that prosecution was not serious to collect impartial evidence rather was motivated to book the offender at every cost---If the confession before the expert was considered as informal admission (commonly known as extra judicial confession), then such confession should have been tendered in evidence with appearance of expert in the dock, but it had not been done---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Allegedly no motive was asserted in the case by the prosecution, during investigation a suspicion erupted that sister of accused/appellant was in touch with one of the deceased as a friend which infuriated the accused/appellant to commit the murders but no such link was found because said sister of accused/appellant though implicated as an accused was exonerated during investigation and Trial Court did not opt to summon her---Thus, on this limb prosecution had no case---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Medical evidence not supporting ocular account---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Medical evidence in this case did not advance the case of prosecution because nobody had seen the occurrence, therefore, locale, dimension and nature of injuries could not be read as supportive to any fact alleged by the witnesses of circumstantial evidence---Nature of fireshots and injuries did not depict that deceased persons received the same while riding on motorcycle---Similarly, no blackening or burning was observed around the wounds of deceased persons and being distant fires it did not provide any opportunity to any of the deceased to catch the hair of accused/appellant in his hand as alleged---Medical Officer had also conceded, while noting the different sizes of injuries on the person of deceased, that different weapons had been used in commission of murders, which was against the prosecution's case theory---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of pistol on the disclosure of accused---Not consequential---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Recovery of pistol on the lead of accused/appellant from the house of his uncle on 28.09.2016 was merely a fake formality because from the same house on 18.09.2016 accused/appellant had allegedly got recovered his right shoe/sandal, and motor cycle used by him in the occurrence and it was not expected that police had not conducted a thorough search of said house so as to collect any other incriminating material, particularly when pistol had yet not been recovered---Thus, recovery was apparently planted upon the accused/appellant---Even otherwise when there was no direct evidence in the case and other circumstantial evidence had also been disbelieved, merely on the basis of recovery conviction could not be recorded nor sustained---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 109, 148 & 149---Qatl-i-amd, abetment, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Call Data Record (CDR)---Not admissible in evidence---Scope---Accused was charged for committing murder of the son of complainant along with his two friends by firing---Prosecution produced in evidence some CDR of phone numbers but Investigating Officer conceded that no SIM number was in the name of accused/appellant---Although phone of deceased was found present near the dead bodies but it was claimed that cell number recovered from the accused/appellant at the time of his arrest was found issued in the name of deceased---Allegedly, such number was in the possession of sister of accused/ appellant which showed her link with the deceased---No chat or voice messages were available in support thereof, which was the reason said female was not summoned by the Court as an accused nor prosecution was able to establish the fact of her link with any of the deceased---Further, Police Constable who collected such CDR conceded that detail of owner of that cell number was not given in CDR---CDR was obtained from IT office, through email---Neither CDR was obtained from concerned mobile company nor any representative of such company appeared in the dock---Thus, such CDR was not admissible in evidence---Appeal against conviction was allowed, in circumstances.

(k) Criminal trial---

----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in a prudent mind about guilt of accused is sufficient to make him entitled to such benefit.

Mst. Hajira Bibi alias Seema and others v. Abdul Qaseem and another 2023 SCMR 870 rel.

Barrister Muhammad Hassan Anwaar Pannun and Aftab Ahmad Toor for Appellant.

Ahtisham-ud-Din Khan, advocate/defence counsel at State expense.

Malik Muhammad Ijaz Asif, Assistant District Public Prosecutor for the State.

Azhar Iqbal for the Complainant.

Date of hearing: 4th December, 2024.

Judgment

Muhammad Amjad Rafiq, J.---Usama Ali accused/ appellant was tried, in case FIR No. 167 dated 24.06.2016 registered under Sections 302/109/148/149, P.P.C. at Police Station Bambanwala, Daska District Sialkot, by the learned Additional Sessions Judge, Daska District Sialkot and after conclusion of the trial, vide judgment dated 14.09.2019, he was convicted and sentenced as under:

Imprisonment for Life on three counts as Ta'zir under Section 302(b), P.P.C. for committing qatl-e-amd of Rabbi Umais, Hamid Ali and Zain-ul-Hassan. He was further directed to pay Rs.200,000/- (Rupees two hundred thousand only) each as compensation to the legal heirs of all the deceased as envisaged under Section 544-A of Cr.P.C.

All the sentences were directed to run concurrently. Benefit of Section 382-B Cr.P.C., was extended in his favour. Against above conviction and sentence, accused/appellant filed Criminal Appeal No. 77969-J of 2019, whereas, complainant filed Criminal Revision No. 62123 of 2019 for enhancement of above sentence.

1. Prosecution unfolds a scene of 23.06.2016 at 6.00 p.m. when a young lad of 19 years, Rabbi Umais sought permission from his father Muhammad Aslam, complainant PW-1, resident of Kundan Sayian, that he and his friends Zain-ul-Hassan and Hamid Ali are on invite for Aftari with some friend at Daska. They went on ride by motorcycle CD-70 SJM-7155 Model 2013, colour red but did not return till late night. Complainant tried to contact him through phone, receiving no response went panic and started his search with the help of Muhammad Azam and Istikhar Ahamd, fathers of Zain ul Hassan and Hamid Ali respectively. Finally, early in the morning at 6.00 a.m. on 24.06.2016 one unknown person informed them of three dead bodies allegedly lying on bank of BRB canal near mouza Malianwala. Complainant along with above two persons went there and found the dead bodies of Rabbi Umais, Zain-ul-Hassan and Hamid Ali. All had received firearm injuries on their persons; some spent shells were also found lying scattered near the dead bodies.

2. First Information Report was registered at 7:15 a.m. on 24.06.2016, Investigating officer PW-17 reached to the place of occurrence, attended the dead bodies, prepared injury statements, inquest reports and sent them for postmortem examination. He claimed spot recoveries like some hair in clenched palm of Rabbi Umais, one shoe of left foot (allegedly of accused), 3 set of shoes and two mufflers (of deceased persons), thirteen spent shells of pistol, motorcycle, broken mobile of Rabbi Umais and blood-stained earth. Crime scene and dead bodies were photographed on his direction by Tayyab Luqman PW-3 and snaps handed over by him were taken into possession on 27.06.2016. On 30.06.2016 Yasir Abass 579-C computer operator Police station Bambanwala handed over CDR of phone numbers 0334-7941801 w.e.f. 21.06.2016 to 23.06.2016; phone number 0348-1472673 w.e.f. 01.04.2016 to 23.06.2016; phone number 0348-8636799 w.e.f. 01.04.2016 to 23.06.2016. Blood-stained earth, Hair, and Swabs taken from inside the shoe, as well as spent shells were sent to PFSA on 28.06.2016. Through first supplementary statement of the complainant on 24.06.2016, accused/appellant, his father Khalid and four unknowns were suspected to be involved in commission of offence yet second supplementary statement bracketed (1) Adil (2) Malik Shakeel (3) Mubashir (4) Hafiz Usman (5) Shabbir and (6) Sunaina; however, except Adil (PO), Khalid and later nominated accused were exonerated during the investigation, neither challaned nor summoned by the Court. Accused/appellant's arrest was shown on 14.09.2016 and later on 16.09.2016, for his DNA analysis and polygraph test, he was taken to PFSA. On 18.09.2016, accused/appellant led to the recovery of motorcycle (P-14) used by him during the occurrence and second shoe (P-15) from house of his uncle Malik Shabbir situated at Street No. 5, Pasrur road, Daska. Both shoes were got identified from Muhammad Azam and Istikhar PWs who claimed them of one person. On 27.09.2016 accused/appellant pointed out the place of murder. On 28.09.2016 accused/appellant led to the recovery of pistol .30 bore (P-10) from the same house of his uncle. PFSA reports returned with opinion of identification of human blood on earth sent for analysis, DNA profile obtained from hair and swabs taken from inside of shoe was declared consistent with DNA profile of accused/appellant. Pistol sent to PFSA was found wedded with spent shells. An attempt for polygraph test stood failed because accused allegedly confessed his guilt before the expert on 16.09.2016; such confession was claimed to have been recorded separately by the expert as reflected from PFSA report Exh. PQQ. Finally Report under section 173, Cr.P.C was put into the Court.

3. Prosecution examined, as many as, twenty PWs including witnesses of last seen, namely, Muhammad Nadeem (PW-7) and Muhammad Imran (PW-8). After close of prosecution evidence, the appellant was examined under Section 342, Cr.P.C., and he while responding to a question that why this case is against him and why PWs deposed against him? has stated as under:

"All the witnesses are inter-se related. They have involved me in this case merely on the basis of suspicions. In fact at the time of occurrence I was not present at place of occurrence. I have been falsely roped in this case. I am innocent."

The appellant neither appeared as his own witness in terms of Section 340(2), Cr.P.C., nor produced documentary evidence, and the trial ended in the terms as detailed above.

1. Learned proponent and opponent were heard at length while examining the whole evidence.

2. Case of the prosecution was structured through last seen evidence as a first clue for the involvement of accused/ appellant, which was deposed by Muhammad Nadeem (PW-7) and Muhammad Imran (PW-8), cousins inter se and relative of complainant. Nadeem was a fruit vender and Imran a property dealer. Both stated that on 23.06.2016 at 8.30 p.m. they went to Ramzan town for business work of Imran. They were on walk over the bank of BRB Canal near Stadium and Ramzan town when saw deceased persons riding on motor cycle were going on the western bank of canal and just after them saw accused/appellant on another motorcycle. After some time, they saw accused/ appellant coming back alone on his motorcycle being driven rashly.

It was admitted by them that they informed the complainant about this fact on 25.06.2016 (after two days). This delayed information was with the justification that they came back from Multan together on the said date but no proof of their being gone to Multan was produced on the record.

PW-7 was simply a fruit vender and had no hand or share in property business of Imran. His presence in the month of Ramadhan at 8.30 p.m. in Ramzan town for the purpose of observing an activity of plotting is nothing but a story.

It was an occurrence in the month of June and both the witnesses are not expected to there at 8.30 p.m., that too in the month of Ramadhan when Muslims are busy in offering their Esha prayer followed by Taravih. It has further come in the evidence that there was no mosque in Ramzan town that could justify that after offering Esha prayer they were on walk from Ramzan town to bank of canal which was allegedly at a distance of 1/2 kilometer. However, site plan does not indicate any road leading to Stadium or the Ramzan town. Both the witnesses neither have shown their place of presence to the police nor police has sketched or photographed that place.

As per statement of PW-7, they did not go to western bank of canal; no proof of light on the western bank of canal though claimed street lights on their side. He was not resident of locality where accused/appellant resided, however, claimed that his cousin Imran was married in the locality of accused/appellant but he knew nothing about the father of accused/appellant. From the above facts if a little acquittance of this witness with accused/appellant is conceded, he is not expected to have identified the accused from a distance with intervening BRB canal and that too in dark night, because source of light they deposed was at distance of 1/2 kilometer at Ramazan town and nearby hospital.

Testimony of PW-7 does not inspire confidence and I have reached to the conclusion that his presence at acclaimed place was highly doubtful due to above highlighted facts and the followings;

He conceded that no body met them during their walk on the bank of canal and admitted that no persons were gathered at that time to make a plan of Ramzan town. He specifically stated that at 8.30 p.m. except them, no other person was present. It was also deposed that the person whom Imran PW had come to meet was not produced before the investigating officer nor security guard of Ramzan town was associated into investigation.

1. PW-8 Mohammad Imran for his presence at Ramzan town, deposed as under;

"One Asif Ilyas, one of my friend, who used to deal in property business, apprised me regarding plotting of Ramazan Town. We went at Ramazan Town for the purpose of planning of the plotting at 8.00 p.m. None other was present there, at that time. I do not know the name of owner/proprietor of Ramzan Town."

He admitted it correct that during the period at BRB canal, none from the public met them, none of the vehicle was passing thereby at the relevant time. He also conceded that he does not know the person whom they visited at Multan. Surprisingly, they made the statement on 25.06.2016 to the police but complainant had already nominated the accused/appellant on 24.06.2016. As per his testimony, he had received information of murders on 24.06.2016 but did not contact the complainant (his maternal uncle) or PWs namely Muhammad Azam and Istikhar on phone on the said day despite the fact his two brothers Luqman and Irfan were also witnesses in this case. It is clear from the above facts that present two witnesses were installed by the prosecution in support of hunch of the complainant who was suspecting involvement of accused/appellant. These witnesses have not seen any weapon in the hand of accused/appellant, nor claimed seeing the accused/appellant coming back on motorcycle without left shoe in his foot. Prosecution has not opted to procure CDR of these witnesses to justify their acclaimed presence near BRB Canal at the relevant time. Last but not the least they have not seen the commission of murder by the accused/appellant.

1. Circumstantial evidence, in the form of DNA matching with some hair in the clenched palm of one of the deceased and on swabs taken from shoe , is mind-boggling evidence and raises many question that how such evidence was collected and procured by the police. The first eye brow raiser is the situation in which dead bodies were lying on the place of occurrence. An impression was created that deceased were targeted when they were on motorcycle and after sustaining injuries they fell down on the ground, because snaps of place of murder as well as statements of PWs show that motorcycle was lying over the dead body of one of the deceased, but surprisingly no blood spots or splashing on the motorcycle were found, which fact was conceded by investigating officer PW-17 as under;

"There was no scratches on the motorcycle. I do not remember that there was any stain of blood on motorbike. I have not mentioned in Exh. PI, i.e., recovery memo. of motorcycle that motorcycle was blood stained."

Furthermore, doctor has also not observed any injury on the body of deceased due to fall from motorcycle. Doctor has also observed no blackening or burning around the injuries of any of the deceased which shows that deceased were hit from quite a distance. When the accused was not within the reach of deceased, some hair in the clenched palm of Rabbi Umais deceased has no meanings. Similarly, when nobody has seen the accused while committing murder, showing running of accused in haste while leaving his left shoe at the place of occurrence is a story that may not find a buyer.

Tayyab Luqman 1039/C PW-3, on call reached the place of occurrence, and photographed the dead bodies (Exh.PB/1-20). When he was asked about hair in the clenched palm of Rabbi Umais; he responded as under;

"None of the pictures (P1-P20) shows the recovery of human hairs from the fist of Rabi Umais deceased."

PW-17 Muhammad Akhtar Inspector, the first investigator admitted during cross-examination as under;

"It is correct that there is no reference of capturing hair by dead body of Rabbi Umais in his injury statement prepared by me. It is correct that no photograph of fist of Rabbi Umais was captured, wherein, he was carrying hair."

I have also examined the snaps P1-P20, which show that every effort has been made to develop the pictures in a form so as to conceal the hands of Rabbi Umais deceased. I have also not found in said snaps any shoe near or around the dead bodies of deceased persons. Thus, above evidence was created to book the accused/appellant.

1. Identification and comparison of recovered shoes of accuses/appellant was yet another issue with the prosecution. Investigating Officer PW-17 deposed that on 19.09.2016, he was present in HIU Office Daska when two witnesses namely Azam and Istikhar appeared before him and joined the investigation whom he had shown one right shoe of rubber leather which was recovered by him on the lead of accused/appellant. After comparison and identification by the PWs that both shoes are of same person, he prepared Memo. of identification duly signed by the PWs. I am afraid this arrangement for identification of shoes is not recognized by law, particularly when Investigating Officer admitted during cross-examination as under;

"The chappal of rubber/chamra was not got comparison by me from the accused."

And also;

"I cannot tell the size and company of rubber shoe P7."

Investigating Officer has not recorded the statement of any witness who could have deposed about the fact they had seen the accused/appellant wearing such shoes on such and such occasion. In a case reported as "Mehr Ali and others v. The State" (1968 SCMR 161), Supreme Court of Pakistan believed such evidence only when cobbler appeared as witness for identification of shoe with the explanation that accused got it repaired from him, and a supervisor also appeared who had seen the accused wearing such shoe at work place.

Even otherwise, the law on the subject is very clear that if no witness as referred above was available then shoes must have been examined by an expert to know about its size to be fit in the feet of accused. Case reported as "Muhammad Tayyab and another v. The State and others" (2023 YLR 2207) is referred. It has been held in a case reported as "The State v. Zafar Ahmad and others" (KLR 1991 Criminal Cases 418) that such shoe had no special features rather was of common pattern, therefore, it hardly connects the accused with the crime. Similarly, in a case reported as "Qamar Abbas Shah v. The State" (2012 YLR 2663), it was commented that there are so many shoes of the same company owned by many other persons. Thus, prosecution has failed to prove that recovered shoes belong to the accused/appellant.

1. Mr. Hassan Anwaar Pannun, learned counsel for the appellant has very elegantly pointed out the fabrication of above evidence while claiming that in fact accused/appellant was arrested on the day of occurrence and his hair and shoe were used to provide evidence in this unwitnessed occurrence. Learned counsel for the appellant regarded it a tunnel vision, a practice inherent in police whose ideology speaks that "accused is guilty until proven innocent", therefore they book the offender on the hunch and then start creating evidence in support of their bias. Learned counsel in this respect has referred the portion of cross-examination on some prosecution witnesses. According to him, PW-1 Muhammad Aslam, complainant deposed as under;

"It is correct that Adil was arrested in this case by the police on the night of Janaza. It is correct that on the same day, Usama accused was also arrested. It is correct that formal arrest of Usama was not shown by the police for three months."

(Emphasis supplied)

PW-13 Muhammad Afzal, who had identified the dead body of Zain ul Hassan had responded, the question asked about arrest of accused, as under;

"I cannot tell that accused Rahat Saleem was arrested from Janaza, volunteered that a person was arrested but I do not know about his name."

PW-18 Muhammad Baqir Inspector, 2nd investigator deposed as under;

"The first IO might have arrested accused Usama on the basis of suspicion but I do not know about it."

He conceded that he did not join into investigation the earlier investigator.

The above highlights further get strength from the fact that no investigating officer deposed before the court that any process like warrants or proclamation was ever issued against the accused/appellant for his arrest despite the fact he allegedly remained out of reach by the police for three months. Thus, it is clear that accused was arrested on the same day and police was in a position to create the evidence, as made available in this case.

1. Prosecution has claimed that accused appellant also pointed out the place of murder of the deceased which is relevant evidence. I am afraid this fact was already in the notice of prosecution and cannot be regarded as a fact in the exclusive knowledge of the accused/ appellant and was discovered only on his information so as to make it admissible evidence under Article 40 of the Qanun-e-Shahadat Order 1984. Thus, this piece of evidence cannot be read against him.

2. Mr. Hassan Anwaar Pannun, learned counsel for the appellant while sharing his gut feelings stated that in fact place of commission of murder is different from place where dead bodies of deceased were found. It seems that dead bodies along with spent shells and motorcycle were placed in order to mislead and distract the police; had it been an occurrence at 10.00/11.00 p.m. on bank of canal the crime had immediately been reported to the police because prosecution claimed it a road having nearby urban area for ply of traffic round the clock. In support of his arguments learned counsel for the appellant has read the following portion of cross-examination on Fazal Ahmad Sarra Inspector, PW-20 (third investigator);

"It is correct that complainant Aslam while appearing before me stated that "where dead bodies of our kids were lying and blood was also oozed there; one sandal of deceased Hamid was not there; mobile phone of Zain-ul-Hassan was not there; there was no scratch of wound due to falling from motor bike; there was also no scratch/wound for falling on the ground; the motor bike was in fine condition and it seemed that the same was laid down intentionally; the crime empties were lying under the dead body which connoted that the deceased persons were murdered somewhere else and their dead bodies were shifted there later on; because an alone person cannot make firing solely while driving motorbike."

Further deposed;

It is correct that PW Luqman stated before me that the averments made by the complainant before me are true. It is correct that PW Luqman stated before me that "deceased Zain, Rabi and Hamid were murdered somewhere else but their dead bodies were shifted at the alleged place of occurrence later on"

The above reference shows that laymen like complainant and witnesses after viewing the condition of dead bodies and articles lying near them, did observe that it was not the place of murder, then it was not expected that investigating officer being expert witness had oversighted such fact. The best course, in the situation was lifting of finger prints from the mobile, shoes of deceased and spent shells so as to rule out any interference with the articles, but failing in such exercise police has further made place of murder as doubtful. From the above reference of the statement of PW-20 and observations made by this Court herein and in preceding paragraphs, it is apparent that prosecution has even failed to prove the actual place of murder, which has never been pointed out by the accused/appellant.

1. Prosecution in this case though has made an effort to procure evidence in the form of polygraph test but surprisingly expert did not conduct it due to the reason that accused/appellant allegedly confessed his guilt before him. It was claimed that confession was recorded by him separately. Expert was not a magistrate so as to give words to the alleged confession rather was under duty to conduct polygraph test even in that situation in order to ascertain the truth of such confession. This Court through case reported as "Muhammad Aslam v. The State and others" (PLJ 2023 Cr.C Lahore 765) has regarded the polygraph test an effective tool to provide evidence of facts coming from the mouth of an accused. Refusal by expert to conduct the polygraph test created further doubt that prosecution was not serious to collect impartial evidence rather was motivated to book the offender at every cost. If the confession before the expert is considered as informal admission (commonly known as extra judicial confession), then such confession should have been tendered in evidence with appearance of expert in the dock, but it has not been done.

2. Allegedly no motive was asserted in this case by the prosecution but during investigation a suspicion erupted that sister of accused/appellant was in touch with one of the deceased as a friend which infuriated the accused/appellant to commit the murders but no such link was found because said sister of accused/appellant though implicated as an accused but was exonerated during investigation and trial Court did not opt to summon her. Thus, on this limb prosecution has no case.

3. Medical evidence in this case does not advance the case of prosecution because nobody had seen the occurrence, therefore, locale, dimension and nature of injuries cannot be read as supportive to any fact alleged by the witnesses of circumstantial evidence. However, as observed in preceding paragraphs, nature of fires and injuries do not depict that deceased persons received the same while riding on motorcycle. Similarly, no blackening or burning was observed around the wounds of deceased persons and being distant fires do not provide any opportunity to any of the deceased to catch the hair of accused/appellant as alleged its presence in the clenched palm of Rabbi Umais deceased. Doctor has also conceded, while noting the different sizes of injuries on the person of deceased, that different weapons have been used in commission of murders, which is against the prosecution's case theory.

4. Recovery of pistol on the lead of accused/appellant from the house of his uncle Shabbir Ahmad on 28.09.2016 was mere a fake formality because from the same house on 18.09.2016 accused/ appellant had allegedly got recovered his right shoe/Sandal (P-15), and motor cycle (P-14) used by him in the occurrence and it is not expected that police had not conducted a thorough search of said house so as to collect any other incriminating material, particularly when pistol had yet not been recovered. Thus, recovery was apparently planted upon the accused/appellant. Even otherwise when there is no direct evidence in this case and other circumstantial evidence has also been disbelieved, mere on the basis of recovery conviction cannot be recorded nor sustained.

5. Prosecution has also produced in evidence some CDR of phone numbers but PW-17 conceded that no SIM number was in the name of accused/appellant. Although phone of Rabbi Umais was found present near the dead bodies but it was claimed that cell No. 0334-7941801 recovered from the accused/ appellant at the time of his arrest was found issued in the name of Rabbi Umais. It was alleged that such number was in the possession of Sunaina, sister of accused/appellant which shows her link with the deceased. No chat or voice messages were available in support thereof, that was the reason said Sunaina was not summoned by the Court as an accused nor prosecution was able to establish the fact of her link with any of the deceased. Further, PW-16 Yasir Abbas 579-C who collected such CDR concedes that detail of owner of cell No. 334-7941801 is not given in CDR. He further concedes that CDR was obtained from IT office, DPO Sialkot through email. Neither CDR was obtained from concerned mobile company nor any representative of such company appeared in the dock. Thus, such CDR was not admissible in evidence.

6. After evaluating the evidence in this case, it is apparent that this case is a worst form of tunnel vision on the part of police and prosecution. In an article, on "Tunnel vision" inspired by a book written by Brian L. Cutler (Ed.), Conviction of the innocent: Lessons from psychological research (pp. 303.323). American Psychological Association, Findley, K. A. (2012) refers it as under;

Tunnel vision is a natural human tendency that has particularly pernicious effects in the criminal justice system. This process leads investigators, prosecutors, judges, and defense lawyers alike to focus on a particular conclusion and then filter all evidence in a case through the lens provided by that conclusion. Through that filter, all information that supports the adopted conclusion is elevated in significance, viewed as consistent with the other evidence, and deemed relevant and probative. Evidence inconsistent with the chosen theory is easily overlooked or dismissed as irrelevant, incredible, or unreliable. Properly understood, tunnel vision is more often the product of the human condition, as well as institutional and cultural pressures, than of maliciousness or indifference.

1. Public Prosecution Service of Cananda in its publications explain that tunnel vision in the criminal justice context can be described as a tendency of participants in the system, such as police or prosecutors, to focus on a particular theory of a case and to dismiss or undervalue evidence which contradicts that theory. This mental process leads to "...unconscious filtering in of evidence that will 'build a case' against a particular suspect, while ignoring or suppressing evidence respecting the same suspect that tends to point away from guilt."

Legal scholars typically include "confirmation bias" as an element of tunnel vision. Confirmation bias is a powerful psychological process that causes an individual to unconsciously prefer information that supports a conclusion that they have already settled on and to disregard or be overly sceptical about information that contradicts that conclusion. While tunnel vision narrows the focus of an investigation to a single target, confirmation bias leads investigators and prosecutors to filter in evidence supporting their theory and to ignore or undervalue evidence that suggests their theory might be incorrect. Confirmation bias causes people to seek, recall, and even interpret data in ways that support their prior beliefs.

"Hindsight bias," or the "knew-it-all-along effect," is another psychological phenomenon that affects tunnel vision in criminal investigations and prosecutions. Hindsight bias occurs when a person mixes new information with old information in their brain. This can result in a person believing an event was predictable and they knew it would happen, even if there was no objective evidence for predicting it would occur at the time. The danger of this process in the course of an investigation or prosecution is that when a theory of a case is developed, hindsight bias can lead to a "rejudgment" process that the given outcome seems inevitable or, at least, more plausible than alternative outcomes." Studies have shown that hindsight bias can also affect judgements about accused persons' past conduct, making the current allegations against them seem all the more probable.

2025 Y L R 451

[Lahore (Multan Bench)]

Before Sadiq Mahmud Khurram and Muhammad Tariq Nadeem, JJ

Ejaz Ahmed and others---Appellants

Versus

The State and others---Respondents

Criminal Appeals Nos. 788-J, 588 and Murder Reference No. 22 of 2019, heard on 28th November, 2023.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Non-availability of justification for the presence of witnesses at the time and place of occurrence---Chance witnesses---Accused were charged for committing murder of two persons of the complainant party by firing---Ocular account of the incident was narrated by two witnesses---One of the deceased persons was the brother of the eye-witness and paternal uncle of the other eye-witness---Said witnesses were also admittedly not the residents of the place of occurrence---According to eye-witnesses, both of them had their residence at a distance of about two kilometers from the place of occurrence---In this manner, both the said witnesses could be termed as chance witnesses and therefore were under a bounden duty to provide a convincing reason for their presence at the place and time of occurrence and were also under a duty to prove their presence by producing some physical proof of the same---However, the witnesses 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---Being conscious of the fact that the occurrence had taken place on a road which was at a distance of about two kilometers from their residence, both the witnesses stated that the reason for their arrival at the place of occurrence was that they had proceeded to the area of "BS" to offer Juma prayers and when they were returning to their house from the mosque situated within the area of "BS", they happened to arrive at the place of occurrence and saw the assailants attack both the deceased who were at that time travelling on a separate motorcycle---Statements of said witnesses revealed that the reason given by them for having proceeded to the area of "BS" to offer Juma prayers was a sham---Both the said witnesses admitted that there were several mosques within the area of their residence where Juma prayers were also offered, however, could not explain their choice of not offering the Juma prayers in the said mosques on the day of occurrence and proceeding to the area of "BS", which mosque was at a distance of as much as four kilometers from their house---In this manner, it was abundantly clear that the prosecution witnesses had no reason to have proceeded to the area of "BS" to offer Juma prayers and the said reason was invented to provide justification for their subsequent arrival at the place of occurrence---Admitted fact that not even a single person joined the investigation of the case to verify the fact that prior to the occurrence, the prosecution witnesses had indeed offered Juma prayers in a Mosque situated within the area of "BS"---Failure of the witnesses to prove the reason for them to have proceeded to the area of "BS" to offer Juma prayers, proved that the very inception of the prosecution case was shrouded in doubt---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 weapons, unlawful assembly---Appreciation of evidence---Non production of motorcycle used by the witnesses---Consequential---Accused were charged for committing murder of two persons of the complainant party by firing---Eye-witnesses claimed that they had gone to the place of occurrence on a motorcycle whereas the two deceased were riding a separate motorcycle, however, during the course of the investigation as well as before the Trial Court, the said motorcycle, allegedly used by the prosecution witnesses to arrive at the place of occurrence, was not produced---Said motorcycle, which was allegedly used by the said witnesses to arrive at the place of occurrence, was not even produced during the entire period of investigation nor was produced before the Trial Court---Non-production of the motorcycle led to only one conclusion that no such motorcycle was available---Had a motorcycle been used by the prosecution witnesses to arrive at the place of occurrence, then the same must have been available at the place of occurrence at the time of arrival of the Investigating Officer---In this manner, the prosecution witnesses failed to prove that they had indeed arrived at the place of occurrence, at the time when the same was happening---Both the eye-witnesses failed miserably to establish the reason for their presence at the place and time of occurrence and the mode through which they arrived at the place of occurrence---Prosecution was under a bounden duty to establish not only that the prosecution witnesses had a reason to proceed to the place of occurrence but also to prove the mode through which the said witnesses arrived at the place of occurrence---Failure of the said witnesses to prove said fact had vitiated the trust on said witnesses as being truthful witnesses---Appeal against conviction was allowed, in circumstances.

Muhammad Ali v. The State 2015 SCMR 137; Muhammad Rafiq v. State 2014 SCMR 1698; Usman alias Kaloo v. The State 2017 SCMR 622 and Nasrullah alias Nasro v. The State 2017 SCMR 724 rel.

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

----Ss. 302(b), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Unnatural conduct of assailants in sparing a witness---Accused were charged for committing murder of two persons of the complainant party by firing---According to the prosecution witnesses one of the deceased persons used to help the complainant party of the case FIR No.324 of 2014 with regard to qatl-i-amd of the brother of given up prosecution witness and as the appellant was an accused in the said case, therefore, the incident took place---In these circumstances, the given up witness should have been the prime target of the assailants---Furthermore, according to the prosecution witnesses the given up witness was in clear view, at a meagre distance, from the assailants and unarmed, whereas the accused were allegedly armed with various firearm and other weapons---In this situation, it was hard to believe that the given up witness would have been shown the courtesy of being not fired at all when he should have been the prime target of the assailants---In the midst of the firing by the accused persons, the given up witness did not receive even a single scratch on his body during the whole occurrence nor was even targeted at all---If the given up witness had been present in view of the assailants, then he would not have been spared---Blessing the given up witness with such incredible consideration and showing him such favour, when he was the only person with whom the assailants had a direct dispute with, was implausible and opposed to natural behaviour of any accused---It was more illogical that being perceptive of the fact that if the witnesses were left alive, they would depose against the accused, even then the appellant and his co-accused did not cause any injury to them---Such behaviour, on the part of the accused ran counter to natural human conduct and behavior---Article 129 of the Qanun-Shahadat Order, 1984, allowed the Courts to presume the existence of any fact, which it thinks likely to have happened, regard being had to the common course of natural events and human conduct in relation to the facts of the particular case---Thus, by virtue of Art. 129 of the Qanun-e-Shahadat, O., 1984, the conduct of the assailants was opposed to the common course of natural events and human conduct---Hence, it was held that the prosecution witnesses did not witness the occurrence---Appeal against conviction was allowed, in circumstances.

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.

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

----Ss. 302(b), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Non-production of residents/witnesses of the locality--- Accused were charged for committing murder of two persons of the complainant party by firing---According to the eye-witnesses, the place of occurrence was situated in a thickly populated area and was surrounded by many shops---According to the rough site plan of the place of occurrence as prepared bythe Investigating Officer of the case, and the scaled site plan of the place of occurrence as prepared by draftsman, near and around the place of occurrence, there were many shops---None of those who had their shops around the place of occurrence joined the investigation of the case and also did not appear before the Trial Court to support the prosecution case---Prosecution was under a bounden duty to produce the witnesses who were the residents of the place of occurrence---Art. 129 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---Appeal against conviction was allowed, in circumstances.

Nadeem alias Nanha alias Billa Sher v. The State 2010 SCMR 949 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Ocular account not supported by medical evidence---Accused were charged for committing murder of two persons of the complainant party by firing---According to the eye-witnesses, one of the deceased had been fired at when he was riding a motorcycle, which motorcycle was being driven by the other deceased and after being hit by bullets, one of the deceased fell from the motorcycle on the road, whereas the other deceased kept on driving the motorcycle as far as a distance of about 487 feet---Had the occurrence taken place in the manner as described by the eye-witnesses, then,the deceased must have suffered injuries due to his fall from the moving motorcycle, however, Medical Officer who conducted the post mortem examination of the dead body of said deceased did not observe any injuries present on his dead body which had been caused due to the fall from the motorcycle---Medical Officer opined that all the nine injuries observed by him to be present on the dead body of said deceased had been caused by the use of a firearm weapon---In this manner, the narrative of the incident as given by the eye-witnesses did not conform with the opinion and observations of Medical Officer, denuding the flaw in the statements of eye-witnesses---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 weapons, unlawful assembly---Appreciation of evidence---Contradictions in the statements of eye-witnesses---Accused were charged for committing murder of two persons of the complainant party by firing---Perusal of the statements of the eye-witnesses revealed that they made contradictory statements with regard to the writing and the submission of written application---According to one of the eye-witnesses, he himself never even submitted the written application at the Police Station rather the said written application was taken to the Police Station by his nephew, who himself was a Police Officer---Contradicting the statement of said witness that he had sent the written application to the Police Station through his nephew, other eye-witness stated that eye-witness had submitted the written application at the police station himself---Reply of eye-witness that the written application was submitted to the Police Station after the shifting of the dead bodies to the hospital also proved that the said written application was submitted after the Investigating Officer of the case had already visited the place of occurrence and had also conducted a detailed inquiry---According to one of the eye-witnesses, he had named as many as eight accused in his written application, however, all the said accused persons were found to have been falsely involved during the course of investigation---Scrutiny of the statements of the said witnesses revealed that the written application as submitted by one of the eye-witnesses was neither prompt nor spontaneous nor natural, rather was a contrived, manufactured and a compromised document---No corroboration of the prosecution evidence could be made from the written application as submitted by one of the eye-witnesses---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 weapons, unlawful assembly---Appreciation of evidence---Delay in conducting post mortem on the dead bodies of the deceased---Accused were charged for committing murder of two persons of the complainant party by firing---Record showed that the postmortem examinations of the dead bodies of the deceased were conducted with much delay---According to the statement of Medical Officer, the post mortem examination of the dead body of the deceased was conducted by him on 20.03.2015 at 09.45 p.m, whereas the post mortem examination of the dead body of the other deceased was conducted by him on 20.03.2015 at 08.30 p.m.---Furthermore, according to the Post Mortem Examination Reports as well as the statement of Medical Officer, the police papers were received at 08.00 p.m. on 20.03.2015 and thereafter the post mortem examinations of the dead bodies of the deceased were conducted---Perusal of the Post Mortem Examination Reports as well as the statement of Medical Officer clearly established the fact that the post mortem examinations of the dead bodies of the deceased were delayed and the delay was due to the late submission of police papers---No explanation was offered to justify the said delay in conducting the post mortem examinations---Said fact clearly established that the witnesses claiming to have seen the occurrence 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 false narrative after consultation---Appeal against conviction was allowed, in circumstances.

Khalid alias Khalidi and 2 others v. The State 2012 SCMR 327; Mian Sohail Ahmed and others v. The State and others 2019 SCMR 956 and Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 rel.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence from the possession of accused---Safe custody and safe transmission of recovered weapons to the Police Station not proved---Accused were charged for committing murder of two persons of the complainant party by firing---Regarding the recovery of the Kalashnikov rifle from one of the accused, it was observed that the said recovery was made on 12.08.2015 at the time of arrest of the said appellant during the investigation of the case FIR No.556 of 2015 and the said Kalashnikov rifle was obtained by SI/witness from the Malkhana of Police Station on 11.09.2015 and was handed over to Head Constable for keeping it in safe custody---Investigating Officer stated that he formally arrested the appellantin the present case on 31.08.2015---Prosecution had not produced any witness in whose custody the said Kalashnikov rifle remained from the date of its recovery on 12.08.2015 till its handing over to SI on 11.09.2015---Therefore, it was proved on record that the safe custody and safe transmission of the recovered Kalashnikov rifle from the place of its recovery to the police station was not proved and the possibility of manipulating the said recovered Kalashnikov rifle to procure a favourable report of the Forensic Science Agency, was obvious---Consequently, the recovery of the Kalashnikov rifle from the appellant could not be proved and could not be considered as a relevant fact for proving any fact in issue---Appeal against conviction was allowed, in circumstances.

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

----Ss. 302(b), 148 & 149---Qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of two persons of the complainant party by firing---Motive of the occurrence as stated by eye-witnesses was that one of the deceased used to help the complainant party of case FIR No.324 of 2014 with regard to the qatl-i-amd of the brother of given up witness and as the appellant was an accused in the said case, therefore, the occurrence took place---Throughout the course of the trial, the fact which was admitted by both the eye-witnesses was that neither said deceased was related to the deceased brother of given up witness nor said deceased was a witness in case FIR No.324 of 2014 with regard to the qatl-i-amd of the brother of given up witness---More significantly, it was also admitted by the eye-witnesses that the other deceased had no relationship with the deceased brother of given up witness---Had the motive of occurrence been as was stated by the witnesses then the given up witness would have been the prime target, however, he was not targeted at all, clearly proving the fact that the motive as stated by the witnesses was not the motivation of the assailants---Prosecution witnesses failed to provide evidence to determine the truthfulness of the motive alleged---Said witnesses failed to prove the fact that the said motive was so compelling that it could have led the appellant to have committed the qatl-i-amd of the deceased---No independent witness was produced by the prosecution to prove the motive as alleged---Appeal against conviction was allowed, in circumstances.

(j) Criminal trial---

----Motive---Scope---Motive is only a corroborative piece of evidence and if the ocular account is found to be unreliable then motive alone cannot be made basis of conviction.

(k) Criminal trial---

----Evidence, corroboration of---Principle---One tainted piece of evidence cannot corroborate another tainted piece of evidence.

Muhammad Javed v. The State 2016 SCMR 2021 rel.

(l) Criminal trial---

----Motive---Scope---Motive is a double-edged weapon, which can cut either way; if it is the reason for the accused to murder the deceased, it is equally a ground for the complainant to falsely implicate them in the case.

Muhammad Ashraf Alias Acchu v. The State 2019 SCMR 652 and Liaqat Ali and 11 others v. The State 1992 SCMR 372 rel.

(m) Criminal trial---

----Abscondence of accused---Scope---Abscondence of an accused can be used as a corroborative piece of evidence, which cannot 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; Rohtas Khan v. The State 2010 SCMR 566; Hashim Qasim and another v. The State 2017 SCMR 986 and Naveed Asghar and 2 others v. The State PLD 2021 SC 600 rel.

(n) Criminal trial---

----Benefit of doubt---Principle---If a single circumstance creates a reasonable doubt in the mind of a prudent person, then its benefit is to be extended to an accused not as a matter of concession but as of right.

Muhammad Mansha v. The State 2018 SCMR 772 and Najaf Ali Shah v. The State" 2021 SCMR 736 rel.

James Joseph for Appellant.

Malik Riaz Ahmad Saghla, Additional Prosecutor General for the State.

Sardar Shehryar Mehboob for the Complainant.

Date of hearing: 28th November, 2023.

Judgment

Sadiq Mahmud Khurram, J.---Ejaz Ahmed son of Nazar Hussain (convict) was tried along with Muhammad Khan, Shabbir Ahmad, Muhammad Iqbal, Muhammad Azeem, Mujahid Hussain, Mudassar and Faraz (since acquitted), the co-accused of the convict by the learned Additional Sessions Judge, Multan in case FIR No. 97 of 2015 dated 20.03.2015 registered in respect of offences under sections 302, 148,149 and 114 P.P.C. at the Police Station Budhla Sant, District Multan for committing the Qatl-i-Amd of Ch. Muhammad Asghar son of Muhammad Ibrahim (deceased) and Muhammad Asghar son of Muhammad Aslam (deceased) (The FIR was initially registered in respect of offence made punishable under section 7 of the Anti-Terrorism Act, 1997 also however the said offence was deleted and the accused were not charged for the said offence.) . The learned trial court vide judgment dated 11.02.2019, convicted Ejaz Ahmed son of Nazar Hussain (convict) and sentenced him as infra:

Ejaz Ahmed son of Nazar Hussain :

Death on two counts under section 302(b), P.P.C. as Tazir for committing Qatl-i-Amd of Ch. Muhammad Asghar son of Muhammad Ibrahim (deceased) and Muhammad Asghar son of Muhammad Aslam (deceased) and directed to pay Rs.200,000/- as compensation under section 544-A, Cr.P.C. to the legal heirs of each deceased and in case of default whereof the convict was directed to undergo further simple imprisonment of six months.

The convict was ordered to be hanged by his neck till dead.

Muhammad Khan, Shabbir Ahmad, Muhammad Iqbal, Muhammad Azeem, Mujahid Hussain, Mudassar and Faraz, the co-accused of the convict, were however acquitted by the learned trial court.

1. Feeling aggrieved, Ejaz Ahmed son of Nazar Hussain (convict) lodged Criminal Appeal No.788-J of 2019 assailing his conviction and sentence. The learned trial court submitted Murder Reference No.22 of 2019 under section 374 Cr.P.C. seeking confirmation or otherwise of the sentence of death awarded to the appellant namely Ejaz Ahmed son of Nazar Hussain. The complainant of the case namely Abdul Razzaq filed Criminal Appeal No.588 of 2019 against the acquittal of the accused namely Muhammad Khan ,Shabbir Ahmad, Muhammad Iqbal, Muhammad Azeem, Mujahid Hussain, Mudassar and Faraz by the learned trial court. We intend to decide the Criminal Appeal No. 788-J of 2019, the Criminal Appeal No.588 of 2019 and Murder Reference No.22 of 2019 through this single judgment.

2. Precisely, the necessary facts of the prosecution case, as stated by Abdul Razzaq (PW-1), the eye-witness of the case, are as under:-

"Stated that on 20.03.2015, 1 along with my sons Saif ur Rehman, Muhammad Rizwan, while riding on motor cycle, My brother Muhammad Asghar son of Muhammad Ibrahim, Muhammad Asghar son of Muhammad Aslam, riding on other motor cycle bearing registration No.MNP-2919 going ahead of us were returning after saying Jumma Prayer, when we reached near godown of wheat, where 08 persons were already standing they were Muhammad Khan, Shabbir, Iqbal, Faraz, Mudassar, Azeem, Ijaz and Mujahid son of Shabbir, accused persons, all present in the court. Shabbir and Muhammad Khan raised lalkara that the complainant party should not go from there safely, Ijaz was armed with Kalashnikov while Mujahid was armed with .30 bore pistol. Both the said accused persons fired burst on the back side of Muhammad Asghar son of Muhammad Aslam, who was sitting on rear seat of the motor cycle. Due to which he sustained injuries and fell down on the ground. The said both accused persons fired on him which ruptured his brain. My brother Muhammad Asghar son of Muhammad Ibrahim in order to save his life did speed up the motor cycle. While accused persons Iqbal, Faraz, Azeem and Mudassar all armed with Kalashnikov chased my brother who was riding on motor cycle. During the said course the said accused persons kept on continuous firing) After a short distance Muhammad Iqbal accused made a burst on the person of my brother Asgher due to which he sustained injuries and fell on the ground. Accused Faraz while going near to my fallen brother made a burst on his head due to which his brain was ruptured, where after accused Azeem and Mudasar inflicted fire arms injuries on different parts of the body of my brother. Later on, all the accused persons raised alarm if anyone would come near the dead bodies he will be done to death. Thereafter the accused persons took out wallet of my deceased brother, the said wallet was containing 20 thousand rupees, I.D card and driving license along with other necessary documents. We did not go near them due to fear/terror caused by the said accused persons. This occurrence was witnessed by Muhammad Rizwan son of Abdul Razaq and Saif ur Rehman son of Fazal Mehmood besides me. The accused persons had already committed near about 13 other murders. Muhammad Khan and Shabbir had used to give shelter to Ijaz previously and had also provided him weapons, while had committed murder of Muhammad Afzal son of Fazal Mehmmod for which occurrence FIR No.324/15 P.S Budhla Sant was registered. The deceased Muhammad Asghar son of Muhammad Aslam was the eye-witness of said occurrence and my said brother used to support complainant party of said case. That was the grudge of this occurrence. They wanted to get finished the support of my brother towards complainant of the above said occurrence so they committed the murder of my brother. I presented application Ex.P.A, the accused persons be punished in accordance with law."

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 04.01.2017, 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 seventeen witnesses recorded. The ocular account of the case was furnished by Abdul Razzaq (PW-1) and Muhammad Rizwan (PW-2) . Riaz Ali 1774/HC (PW4) stated that on 02.06.2015, he was posted as Moharrir of the Police Station and at that time, the parcels said to contain empty shells of the bullets and blood stained earth recovered from the place of occurrence were already present in the Malkhana of the Police Station and on 11.09.2015 Bashir Ahmad, SI (PW-15) handed over to him a sealed parcel said to contain a rifle and on 30.09.2015, he handed over the said sealed parcel said to contain a rifle to Bashir Ahmad, SI (PW-15) for its onward transmission to the office of the Punjab Forensic Science Agency, Lahore. Abdul Rasheed 285/C (PW-5) stated that on 20.03.2015 he escorted the dead body of the deceased namely Muhammad Asghar son of Muhammad Aslam to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased . Amjad Ali 1452/C (PW-7) stated that on 20.03.2015 he escorted the dead body of the deceased namely Ch. Muhammad Asghar son of Muhammad Ibrahim to the hospital and received the last worn clothes of the deceased from the Medical Officer after the post mortem examination of the dead body of the deceased. Zia Ullah 2432/HC (PW-8) stated that on 20.03.2015, he recorded the formal FIR (Exh.PA/1). Muhammad Akram (PW-9) stated that after the occurrence, the Investigating Officer of the case collected empty shells of the bullets, the motorcycle (P-10) and the blood stained earth from the place of occurrence. Muhammad Anwar, ASI (PW-10) and Abdul Sattar 1667/HC (PW-11) stated that on 12.08.2015, the appellant namely Ejaz Ahmed was arrested and the Kalashnikov rifle (P-11) was recovered from his possession. Muhammad Furqan (PW-12) stated that he identified the dead bodies of both the deceased at the time of their post mortem examinations and the Medical Officer handed over the last worn clothes of both the deceased to the Investigating Officer of the case in his presence. Irfan Hayat, draftsman (PW-13) prepared the scaled site plan of the place of occurrence (Exh.PN). Muhammad Akram (PW-14) stated that on 20.03.2015, he identified the dead body of the deceased. Jehanzeb Hayat 3380/HC (PW-17) produced the copies of Rapt No. 17 (Exh.PS), Rapt No.11 (Exh.PT) and FIR No. 556 of 2015 (Exh.PU). Imran Arif, Inspector (PW-16), the Investigating Officer of the case, investigated the case from 20.03.2015 till 24.06.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court. Bashir Ahmad, SI (PW-15), the Investigating Officer of the case, investigated the case from 07.07.2015 till 30.09.2015, arrested the appellant Ejaz Ahmed on 31.08.2015 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

3. The prosecution also got Dr. Liaquat Ali Ansari (PW-6) examined, who on 20.03.2015 was posted as Medical Officer at RHC, Makhdoom Rasheed and on the same day conducted the post mortem examination of the dead body of Ch. Muhammad Asghar son of Muhammad Ibrahim on the same day. Dr. Liaquat Ali Ansari (PW-6) after conducting the post mortem examination of the dead body of Ch. Muhammad Asghar son of Muhammad Ibrahim (deceased) observed as under:-

"INJURIES

1) Multiple lacerated wound (entry wound) with inverted margin, abraded collar on right side of cheek, right eye. Due to blastic affected the skull bone fractured into multiple pieces and muscles, bones and brain matter spilled out, eyes absent. Face left side absent only musculature with right side of mandible right ear, nose musculature and some parts of occipital area present. Beared on right side of face present.

2) Multiple lacerated entry wound in area about 12 cm x 6 cm on the back of left upper arm and multiple lacerated wound having 1/2 x 1/2 cm in measurement and inverted margin. Multiple lacerated wound 1 x 1 cm on antero-lateral aspect in an area of 11 cm x 8 cm with everted margins (exit wound of the same injury). Bullets in its passage broken the humerus bones into multiple pieces and damaged the fascia muscles and blood vessels.

3) A lacerated wound 1/2 x 1/2 cm 4 cm medial to left armpit with inverted margins (entry wound).

4) A lacerated wound 2 cm x 1 cm on top of left shoulder joint with everted margins (exit wound).

5) A lacerated wound 1 cm x 1/2 cm (entry wound) with inverted margin present, lateral side of left chest 5 cm below the armpit.

6) A lacerated wound 3 cm x 1 cm on back of the chest 4 cm below the injury No.4 at the level of left scapular area with everted margins. This was the exit wound of injury No.5. During the passage of bullet, damaged the left lung vigorously and came out by fracturing the left scapula.

7) A lacerated wound 1/2 x 1/2 cm with inverted margins (entry wound) 10 cm above and lateral to right nipple.

8) A lacerated wound 2 cm x 1 cm on back of left chest 5 cm lateral to midline, the wound has everted margins (exit wound of injury No.7). On dissection, the bullet injured in its path damaged the right lung crossed the midline damaged the 4th vertebrae and came out by fracturing the 4th rib.

9) A lacerated wound 1 cm x 1/2 cm on back of left thigh 12 cm above the poplitial fossa with inverted margins (entry wound).

10) A lacerated wound 3 cm x 2 cm on medial side of left thigh 16 cm from the left inguinal region with everted margins. This was the exit wound of injury No.9. The bullet in its path damaged the muscles and blood vessels but bone intact.

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OPINION

In my opinion, injury No.1 was the cause of death which was injury to brain vital organ associated with all other injuries which accelerate death. These injuries were sufficient to cause death in ordinary course of lift. All these injuries were ante mortem in nature and due to firearm. Probable time that elapsed between injuries and death instantaneously and between death and postmortem 6 to 7 hours."

On the same day Dr. Liaquat Ali Ansari (PW-6) also conducted the post mortem examination of the dead body of Muhammad Asghar son of Muhammad Aslam. Dr. Liaquat Ali Ansari (PW-6) after conducting the post mortem examination of the dead body of Muhammad Asghar son of Muhammad Aslam (deceased) observed as under:-

"INJURIES

1) multiple lacerated wound right side of face with inverted margin and tattooing present (entry wound)

2) Lacerated wound 3 cm x 4 cm and left eye ball with inverted margins tattooing present with absent left eye (entry wound).

3) A lacerated wound 3 x 4 cm on forehead going deep.

4) Lacerated wound 3 x 4 cm on right side of mandible with inverted margin (entry wound). All above injuries on dissection seen, the skull broken into multiple pieces, brain matters spille out, disfigured the face and left side of the skull open having broken skull pieces with brain matter coming out. There were 2 to 3 exit wounds on the occipital area. Left eye was absent.

5) 1/2 x 1/2 cm lacerated wound infront of neck at the level of throid cartilage, on dissection, bullet in its path damaged thyroid cartilage and blood vessel damaged the right lung and comes out on back of chest right side.

6) A lacerated wound 4 x 3 cm on left side of upper area of chest just below the lateral end of clavical with inverted margin (entry wound). On dissection, bullet in its path damaged the lung (left) vigorously and then comes out on back of chest at the level of 8th rib (fractured).

7) A lacerated wound 3 x 5 cm on back of left side of chest with everted margin (exit wound of injury No.6) 6 cm lateral-to-midline.

8) A lacerated wound 3 x 4 cm on medial end of the right clavicle with inverted margin on its path, the bullet damaged the clavicle (fractured) and then damaged the right lung vigorously and came out on the back of right chest at level of 5th rib.

9) Two lacerated wounds side by side on back of right chest 4 cm lateral to midline with everted margin (exit wound of injury No.58)

10) A lacerated wound 4 x 12 cm on dorsal and inner side on left foot having abraded collar. meta dorsal bones fractured.

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OPINION

In my opinion, the cause of death was injuries Nos. 1 to 9 which were injury to vital organ, brain lungs. These injuries were sufficient to cause death in ordinary course of life. All the injuries were antemortem in nature and due to firearm. Probable time between injuries and death instantaneously and between death and postmortem was 8 to 9 hours.

1. On 22.11.2017, the learned Deputy District Public Prosecutor gave up the prosecution witnesses namely Saif ur Rehman, Ghulam Haider, Rana Muhammad Afzal and Mukhtiar as being won over by the accused and gave up the prosecution witnesses namely Asim Razzaq and Muhammad Shafique T/ASI as being unnecessary. On 13.03.2018, the learned Deputy District Public Prosecutor gave up the prosecution witness namely Muhammad Fayyaz 2039/C as being unnecessary. On 26.06.2018, the learned Assistant District Public Prosecutor gave up the prosecution witnesses namely Zulifqar Ali, Inspector, Muhammad Gulzar Inspector and Tahir Mahmood, SI as being unnecessary . On 08.01.2019, the learned Assistant District Public Prosecutor gave up the prosecution witnesses Mohsin Ali and Abdul Ghafoor as being unnecessary and closed the prosecution evidence after tendering the report of the Punjab Forensic Science Agency, Lahore (Exh.PV) regarding the analysis of the blood stained earth, the reports of the Punjab Forensic Science Agency, Lahore (Exh. PW and Exh. PX), the judgment of learned trial court in case FIR 324 of 2014 (Exh.PY), warrants of arrest (Exh. PZ) of the appellant namely Ejaz Ahmed and proclamation (Exh.PZ/1).

2. The learned trial court also recorded the statements of Tahir Masood, SI (CW-1) as a court witness who investigated the case from 01.06.2016 till 28.06.02016 and detailed the facts of the investigation as conducted by him in his statement before the learned trial court.

3. After the closure of prosecution evidence, the learned trial court examined the appellant namely Ejaz Ahmed son of Nazar Hussain under section 342, Cr.P.C. and in answer to the question why this case against you and why the PWs have deposed against you, he replied that he had been involved in the case falsely and was innocent. The appellant namely Ejaz Ahmed son of Nazar Hussain opted not to get himself examined under section 340(2), Cr.P.C. and did not adduce any evidence in his defence.

4. On the conclusion of the trial, the learned Additional Sessions Judge, Multan convicted and sentenced the appellant as referred to above.

5. The primary contention of the learned counsel for the appellant is that the whole case is fabricated and false. The learned counsel for the appellant argued that the prosecution remained unable to prove the facts in issue and did not produce any unimpeachable, admissible and relevant evidence to prove the same. The learned counsel for the appellant further contended that the statements of the eye-witnesses namely Abdul Razzaq (PW-1) and Muhammad Rizwan (PW-2) were not worthy of any reliance. The learned counsel for the appellant also argued that the recovery of the Kalashnikov rifle (P-11) from the possession of the appellant could not be proved. The learned counsel for the appellant finally submitted that the prosecution had totally failed to prove the case against the appellant beyond the shadow of doubt.

6. On the other hand, the learned Additional Prosecutor General along with the learned counsel for the complainant contended that the prosecution had proved its case beyond shadow of doubt by producing independent witnesses. The learned Additional 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 appellant. The learned Additional Prosecutor General along with the learned counsel for the complainant further contended that the medical evidence also corroborated the statements of the prosecution witnesses namely Abdul Razzaq (PW-1) and Muhammad Rizwan (PW-2). The learned Additional Prosecutor General and the learned counsel for the complainant 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. The learned Additional Prosecutor General and the learned counsel for the complainant prayed for the rejection of the appeal as lodged by the appellant namely Ej az Ahmed. The learned counsel for the complainant also argued that the Criminal Appeal No.588 of 2019, assailing the acquittal of Muhammad Khan, Shabbir Ahmad, Muhammad Iqbal, Muhammad Azeem, Mujahid Hussain, Mudassar and Faraz by the learned trial court from the charges also merited acceptance.

7. We have heard the learned counsel for the appellant, the learned counsel for the complainant, the learned Additional Prosecutor General and with their assistance carefully perused the record and evidence recorded during the trial.

8. The instant case relates to the Qatl-i -Amd of two deceased namely Ch. Muhammad Asghar son of Muhammad Ibrahim and Muhammad Asghar son of Muhammad Aslam. A perusal of the prosecution evidence reveals that the whole prosecution case as against the appellant namely Ejaz Ahmed is based on the statements of the prosecution witnesses namely Abdul Razzaq (PW-1) and Muhammad Rizwan (PW-2). The ocular account of the incident was narrated by the said prosecution witnesses namely Abdul Razzaq (PW-1) and Muhammad Rizwan (PW-2). The relationship of the said witnesses with the deceased namely Ch. Muhammad Asghar son of Muhammad Ibrahim is on record. Ch. Muhammad Asghar son of Muhammad Ibrahim (deceased) was the brother of the prosecution witness namely Abdul Razzaq (PW-1) and the paternal uncle of the prosecution witness namely Muhammad Rizwan (PW-2). The prosecution witnesses namely Abdul Razzaq (PW-1) and Muhammad Rizwan (PW-2) were also admittedly not the residents of the place of occurrence. According to the prosecution witnesses namely Abdul Razzaq (PW-1) and Muhammad Rizwan (PW-2), both of them had their residence at a distance of about as much as about 2 kilometres from the place of occurrence. The prosecution witness namely Abdul Razzaq (PW-1), during cross-examination stated as under:-