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P.Cr.R. ( Pakistan Current Criminal Ruling)

2021 [M] P Cr. R Note 21

Azad Jammu & Kashmir (AJ&K) High Court

Other Citation: None

Zarar Ismail and 2 others vs Senior Superintendent Police, District Mirpur and 4 others RAZA ALI KHAN, J.

(a) AJ&K Interim Constitution,  1974—

—Art. 44—AJK Penal Code, Ss. 419, 420, 34—Writ petition—Quashment of F.I.R—Civil and criminal proceedings-

–Determination of—The petitioners have sought quashment of F.I.R.—It is now well-settled that High Court has limited scope and jurisdiction in such-like matters while exercising its jurisdiction under Article 44 of Interim Constitution Act, therefore, High Court always refrains itself from interference with police investigation of a criminal case except in exceptional circumstances, (i) where the allegation made in the first information report or the complaint, do not prima facie constitute any offence or make out a case against the accused; (ii) where the allegation in first information report do not disclose a cognizable offence justifying an investigation by police officer under Section 156(ii) of Cr.P.C. except under an order of a Magistrate within the purview of Section 155(2) of Cr.P.C.; or (iii) where uncontroverted allegations made in F.I.R. or complaint and the evidence collected in support of the same, do not disclose the commission of any offence and make out a case against the accused; or (iv) where allegation in the F.I.R. do not constitute a cognizable offence but constitute only non- cognizable offence, no investigation is permitted by a police officer with an order of a Magistrate contemplated under Section 155(2) of Cr.P.C. or (v) where the allegation made in F.I.R. or complaint are so absurd and itinerantly improbable, on the basis of which no prudent person can ever reach just conclusion that there is sufficient ground for proceeding against accused; (vi) where there is express legal bar engrafted in any of the provisions of Code or concerned Act, or where there is specific provision in Code or concerned Act, providing efficacious redressal for grievance of aggrieved party, (vii) where criminal proceedings manifestly attended with mala fide and or where the proceeding is maliciously instituted with an ulterior motive—Obviously, criminal cases are decided on the basis of material so collected by the prosecution during the course of investigation and the evidence recorded in the Trial Court and that too, after appraisal of evidence by it in accordance with the law applicable thereto—High Court cannot assume the role of an investigating agency or of a Trial Court to dilate upon the factual controversies involved in the exercise of its Constitutional jurisdiction—Private respondent filed an application before S.H.O. police station, alleging therein that Zarar Ismail contacted him for sale of House and the bargain was struck between the parties in lieu of Rs. 1,37,00,000/- out of which Rs. 20,00,000/- was deposited in the account of Zarar Ismail on 06.06.2014, Rs. 10,00,000/- was deposited on 20.06.2014, Rs. 5,00,000/- was deposited on 06.07.2014, Rs. 15,00,000/- was paid to Umair Zarar S/o Zarar Ismail in the month of November 2014, Rs. 15,00,000/- was deposited on 17.02.2015 and Rs. 25,00,000/- was deposited on 27.04.2015 and Rs. 27,00,000/- was deposited in the account of Zarar Ismail on 05.05.2015, he has paid Rs. 1,12,00,000/- but the accused has refused to transfer the house and has also refused to return the money—The S.H.O. did not take any action on the application, whereupon, respondent No. 4 filed application under Section 22-A, Cr.P.C. before Sessions Judge/Justice of Peace Mirpur on 25.10.2017—The Sessions Judge disposed of the application with the direction to the S.H.O. Police Station to obtain proof in support of the application from the applicant and in case a cognizable offence appears to have been committed, register the F.I.R., thereafter, the S.H.O. registered F.I.R.—The petitioners have sought quashment of the F.I.R. on the ground that the matter pertains to civil liability and a civil suit for specific performance of the contract is sub judice before the Civil Court, thus, the registration of the F.I.R. is illegal and misuse of power— Factual controversies involved in instant case cannot be resolved in Constitutional jurisdiction under Article 44 of the Interim Constitution Act, 1974 and similarly deviation from normal procedure of law as provided by the Code of Criminal Procedure is not justified, when remedies provided under law are available to the petitioners and Constitutional jurisdiction cannot be exercised—Admittedly report under Section 173, Cr.P.C. (challan) has been submitted before the Trial Court, therefore, petitioners can agitate before the Trial Court, all the grounds taken by them before High Court—Petitioners should avail the remedies provided under law for redressal of their grievance instead of invoking extra-ordinary jurisdiction of High Court—Both the writ petitions being bereft of merits are dismissed. (Paras 2, 8, 9, 12, 16, 17) (b) Administration of justice— —High Court cannot assume the role of investigator—The petitioners have alternate remedy under Sections 265-K and 561-A, Cr.P.C. before Trial Court and when alternate remedy is available in any case then remedy under Section 561-A of Cr.P.C. is not attracted—Remedy under Section 561-A of Cr.P.C. is not to be used to divert the ordinary course of Criminal Procedure Code. (Para 10) (c) Administration of justice— —Criminal and civil proceedings can be proceeded simultaneously. (Para 12) (d) Administration of justice— —An offence committed by any accused person has to be tried and decided in accordance with law unless the nature of the case is such which may depend upon the decision of the civil suit, irrespective of the fact whether a civil suit challenging the same subject-matter has been filed—Criminal as well as civil proceedings can be proceeded side by side and mere filing of a suit is not a ground for quashment of an F.I.R. registered for commission of a cognizable offence. (Paras 13, 15) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 20 Balochistan High Court Other Citation: None Naqeebullah and 2 others vs SSP, Investigation and 4 others MUHAMMAD HASHIM KHAN KAKAR and ABDULLAH BALOCH, JJ. Pakistan Penal Code (XLV of 1860)— —Ss. 109, 337-A(iv), 406, 417, 420, 424 & 504—Constitution of Pakistan, Art. 199—Constitutional petition— Reinvestigation—Supplementary statement—First Information Report, quashing of—Accused persons were aggrieved of reinvestigation of case on basis of supplementary statement when challan had already been filed at Trial Court where case was fixed for recording of evidence—Validity—Further investigation so carried out by investigating agency was not maintainable in eyes of law—Offenses mentioned in F.I.R. were not attracted when otherwise F.I.R. was solely lodged with allegations of assaulting complainants and did not contain details of any fraud allegedly committed by accused persons with complainants—Such exercise carried out by investigating officer on basis of supplementary statement was uncalled for—Supplementary statement made by complainant before investigating officer regarding same occurrence was neither admissible as evidence nor same could be equated with F.I.R. or read as its part—Supplementary statement was always considered fragile type of evidence and on basis of same nature of entire case cannot be changed as such kind of supplementary statements are filed after consultation and deliberations– -High Court quashed proceedings carried out by investigating officer with regard to reinvestigation and insertions of additional offenses under S.406, 417, 420, 424, 504 & 109 P.P.C.—Petition was allowed accordingly. (Para 5) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 19 Lahore High Court Other Citation: None Shehbaz alias Mubashar and another vs The State MANZOOR AHMAD MALIK and MALIK SHAHZAD AHMAD KHAN, JJ. (a) Pakistan Penal Code (XLV of 1860)— —Ss. 302(b), 34—It does not appeal to the mind of a prudent person that the appellant would keep the chhuri blood stained for such a long period as he had ample opportunity during the above-mentioned period to wash away the blood from chhuri—The Supreme Court of Pakistan in the case of Basharat and another Vs. The State (1995 SCMR 1735) disbelieved the evidence of blood-stained chhuri which was allegedly recovered from the accused after ten days from the occurrence—Relevant part of the said judgment at page No. 1739 is reproduced hereunder for ready reference: “11. The occurrence took place on 20.4.1988—Basharat appellant was arrested on 28.4.1988—The blood-stained Chhuri was allegedly recovered from his house on 30.4.1988—It is not believable that he would have kept bloodstained Chhuri intact in his house for ten days when he had sufficient time and opportunity to wash away and clean the blood on it…”—So far as possibility of presence of the blood on the churri after the lapse of one month is concerned, we may refer a judgment of the Supreme Court of Pakistan reported as Muhammad Jamil Vs. Muhammad Akram and others (2009 SCMR 120), wherein at page 123, it was observed as: “…It is borne out from the record that the alleged recovery of blood-stained Chhuri has effected after about one month of the occurrence from an open plot which was not in exclusive possession of the respondent and was accessible to all—It was also not likely that the blood would not disintegrate meanwhile—So the reasons advanced by the Judge in Chambers are not arbitrary or fanciful for not believing the recovery…”—Therefore, we are of the view that it is not safe to rely on these pieces of evidence— Medical evidence is only a supporting piece of evidence because it may confirm the ocular account with regard to the receipt of injury, locale of injury, kind of weapon used for causing the injury, duration between the injury and the death but it would not tell the names of the assailants—Reliance is placed on “Ata Muhammad and another versus The State” (1995 SCMR 599). (Paras 10, 11) (b) Benefit of doubt— —Sequel of the above discussion is that the prosecution case is doubtful in nature and the appellants are entitled to the benefit of doubt not as a matter of grace but as of right—In “Ayub Masih versus The State” (PLD 2002 SC 1048), at page 1056 the Hon’ble apex Court has been pleased to observe as: “….It is hardly necessary to reiterate that the prosecution is obliged to prove its case against the accused beyond any reasonable doubt and if it fails to do so the accused is entitled to the benefit of doubt as of right—It is also firmly settled that if there is an element of doubt as to the guilt of the accused the benefit of that doubt must be extended to him—The doubt of course must be reasonable and not imaginary or artificial—The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence which cannot be ignored while dispensing justice in accordance with law—It is based on the maxim, “it is better that ten guilty persons be acquitted rather than one innocent person be convicted”—In simple words it means that utmost care should be taken by the Court in convicting an accused—It was held in The State v. Mushtaq Ahmad (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case—It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic Law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the “mistake of Qazi (Judge) in releasing a criminal is better than his mistake in punishing an innocent. (Para 13) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 18 Balochistan High Court Other Citation: None Noor Muhammad vs The State NAZEER AHMED LANGOVE and ROZI KHAN BARRECH, JJ. (a) Criminal Procedure Code (V of 1898)— —S. 342—Deep appreciation of the evidence and its critical analysis shows that case of the prosecution was not free from dents and doubts for the reasons that although the FIR was registered within time, wherein, name of the accused (petitioner) also did figure as sole accused, however, ingredients sine qua non, to establish guilt of the accused to the hilt are missing, for the reasons that despite prior information, no efforts had been made to associate any private person as witness; no samples for chemical analysis had been separated and obtained from each and every tin, even not from every box, produced in the Court in unsealed form, which created reasonable doubt, but this important aspect of the matter went unattended by the trial, as well as, appellate Court—The alleged recovery was effected on 12th August, 2019, whereas, only one tin of bear and one bottle of liquor, were sent to FSL which too, after an unexplained delay of 7 days; safe custody or safe transmission of contraband is not established for the reasons that from the date of recovery i.e. 12th August, 2019 till receipt at FSL on 19th August, 2019, for which no explanation was offered by the prosecution witnesses—The delay in transmission of sample to the FSL raised serious doubt about safe custody of the allegedly recovered contraband and its safe transmission to the laboratory—The prosecution has failed to prove the charge against the petitioner beyond reasonable doubt, on basis whereof, the conviction so recorded is not sustainable. (Paras 8, 9) (b) Benefit of doubt— —It is a well-settled principle of law that the accused is a favourite and blue eyed child of law and benefit of even a slightest doubt should be extended to him, provided the doubt should be reasonable—In this respect reliance is placed on a judgment titled as Muhammad Akram Vs. The State (2009 SCMR 230)—Relevant observations therefrom are reproduced herein: 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 High Court in the case of Tariq Pervaiz Vs. 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—The Courts below erred in law by holding that the prosecution has been able to prove its case against the petitioner beyond reasonable doubt by ignoring well-known principle of safe administration of criminal justice wherein time and again it has been held that the accused is a favourite child of law and is entitled for benefit of even a slightest doubt. (Paras 10, 11) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 834 Peshawar High Court Peshawar Other Citation: 2021 P L R 596 Wajid Ali vs The State & 1 another WIQAR AHMAD, J. (a) Criminal Procedure Code (V of 1898)— —S. 410—Perusal of record reveals that Clause ‘b’ of Section 408, Cr.PC has been amended vide item No. 141(iii)(a) of Schedule to the Ordinance, whereby the words ‘a Magistrate specially empowered under section 30’ have been omitted—Resultantly, power of hearing appeals against all sentences passed by all Classes of Magistrate was left with Court of Sessions except those appeals falling in Clause (c) of Section 408, Cr.PC, which provided that a person convicted by a Magistrate for an offence under section 124-A of PPC, may make an appeal before High Court—Subsection (2) of Section 1 of the Ordinance provided that the Ordinance shall come into force at once except the provisions of the Schedule relating to amendments in Cr.PC, which shall come into force in any Province with effect from such date as the Provincial Government thereof may, by Notification in the official Gazette, specify in this behalf, and different dates may be so specified for different previsions and for different areas of a Province so that the amendments in Cr.PC are brought in force throughout the Province progressively—The Ordinance has been notified to have come into force in the Province of Khyber Pakhtunkhwa vide Notification No. S.O. Judl. Misc.(HD)/75, dated 26.12.1975 published in the official Gazette on 30th December, 1975. (Paras 11, 12) (b) Fact not cross-examined— —The principle that a fact is deemed admitted in case of absence of cross-examination viz-a-viz the said fact, was a principle applicable to civil cases and not to criminal cases, as laid by the apex Court in the case of Nadeem Ramzan vs The State reported as 2018 SCMR 149—Relevant part of observation of the august Court is reproduced here for ready reference: “We have specifically attended to the sentence of death passed against the appellant and have noticed in that context that the motive set up by the prosecution had not been established by it—While discussing the motive part of the case the High Court had observed that both the eye-witnesses had stated about the alleged motive and they had not been cross-examined by the defence on that aspect of the case and, thus, the alleged motive stood proved— This approach adopted by the High Court has been found by us to be fallacious”—Mere failure to make cross-examine on a particular aspect of facts cannot therefore be deemed as admitted facts in a criminal case—Same has wrongly been so considered by the trial Court in the impugned judgment. (Para 16) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 829 Balochistan High Court Other Citation: None Syed Wali vs The State ABDULLAH BALOCH and MUHAMMAD HASHIM KHAN KAKAR, JJ. Pakistan Penal Code (XLV of 1860)— —Ss. 365, 511, 427, 147, 148, 149—All the witnesses have recorded their evidence in line with each other and unanimously admitted that prior to the incident they had not known to each other—Besides, there also existed no political rifts, business rivalry, landed dispute or any other sort of relation rather at the first time they met when the incident had taken place at the place of occurrence—Be that as it may, we have no hesitation to hold that the occurrence had taken at the spur of the moment when the parties were making attempts to cross the vehicles of each other—Even otherwise, a single shot was fired and according to plea taken by the defence that the appellant was making aerial firing, but due to crossing the speed breaker, the firing shot hit to the deceased—Thus, the element of mens rea for committing the crime is lacking in the instant case—Had the appellant intended to cause death of the deceased he would have made repeated and indiscriminate firings upon the deceased and his companions, who were lying helpless and armless at the mercy of the appellant, but it appears that the appellant has never chosen to repeat— Since, there existed no previous relation of the parties with each other, thus the element of preparation for committing the crime is also lacking—From the above discussion, the only inference, which safe could be drawn, is that the appellant committed an offence under Section 321, P.P.C., which is punishable under Section 322, P.P.C., which provides that whoever commits Qatl-bis-Sabab shall be liable to Diyat—Being so, we maintain the judgment passed by the trial Court, but alter the conviction and sentence from Section 302(b), P.P.C. to that of Section 322, P.P.C. and sentence the appellant to pay the amount of Diyat prescribed at the relevant time, the sentence of life imprisonment awarded to the appellant is modified to Diyat—So far as the payment of Diyat is concerned, it shall be paid in lump sum or in instalments to the legal heirs of the deceased before the trial Court within a period of five years as provided under Section 331, P.P.C. (Paras 8, 9) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 817 Islamabad High Court Other Citation: None Anwaar-ul-Haq vs The Judicial Magistrate & others GHULAM AZAM QAMBRANI, J. Pakistan Penal Code (XLV of 1860)— —Ss. 489-F/406/34 PPC—To convict an accused under Section 489-F P.P.C all the ingredients of Section 489-F P.P.C mentioned above must be proved through cogent evidence and beyond any shadow of doubt—It is for the Court to consider that under what circumstances, the cheque was issued and what was the intention of the person, issuing it– -Mere issuance of a cheque and its being dishonored by itself, is not an offence, unless and until dishonesty on the part of a payer is proved—Provisions of Section 489-F P.P.C will only be attracted if the following essential ingredients are fulfilled and proved by the prosecution: (i) Issuance of cheque; (ii) Such issuance was with dishonest intention; (iii) The purpose of issuance of cheque should be: (a) To re-pay a loan; or (b) To fulfill an obligation (which is wide term, interalia, applicable to lawful agreements, contracts, services, promises by which one is bound or an ct which binds a persons to some performance)—(iv) On presentation, the cheque is dishonored. (Para 18) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 800 Lahore High Court Other Citation: None Muhammad Yasin, etc. vs The State, etc. SADAQAT ALI KHAN and SADIQ MAHMUD KHURRAM, JJ. For the Appellant: Syed Badar Raza Gilani, Advocate. For the State: Muhammad Ali Shahab, District Prosecutor General. For the Complainant: Ch. Faqir Muhammad, Advocate. Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 789 Lahore High Court Other Citation: None Abida Parveen vs The State & another SADIQ MAHMUD KHURRAM, J. (a) Pakistan Penal Code (XLV of 1860)— —Ss. 302, 148, 149—Criminal Procedure Code 1898, S. 497(1)—Post-arrest bail—Extrajudicial confession—Woman accused—Bail allowed—The petitioner namely Abida Parveen is seeking post-arrest—The petitioner alongwith coaccused committed the Qatl-i-Amd of her husband namely Muhammad Rasheed Shahzad—There is no eye-witness of the alleged occurrence and the prosecution is relying on the witnesses of extra-judicial confession—The evidence of extra-judicial confession of the petitioner has been tendered by the complainant through a written application—The petitioner was arrested on 13.08.2018 and there is no explanation as to why her arrest was not effected after making of the alleged extra-judicial confession—It is part of the record that after the alleged extra-judicial confession of the coaccused, he was not produced before any Magistrate to get recorded his confession—If the co-accused was to confess his guilt before the witnesses then nothing precluded him from doing the same before a Magistrate—Even otherwise until and unless the said extra-judicial confession of the co-accused is proved before the Court of law, the same cannot be used against the petitioner—Mere involvement in a heinous offence is no ground for refusing bail to an accused who otherwise becomes entitled for the concession of bail—Being woman, the case of the petitioner Mst. Abida Parveen is covered by first proviso to sub-section (1) of Section 497, Cr.P.C.—She is behind the bars since 13.08.2018; nearly eight months have elapsed but her trial has not seen any fruitful progress as yet—As per report of the Medical Officer, Central Jail, Sahiwal the petitioner has given birth to a baby boy on 13.04.2019—Both the petitioner and her son are lodged in the Central Jail, Sahiwal—The suckling child of the petitioner kept in jail is undoubtedly innocent—He is being kept in jail with mother obviously for his welfare—The concept of “welfare of minor” is incompatible with jail life—The case of the petitioner becomes one of further inquiry covered by subsection (2) of Section 497, Cr.P.C.—Liability of petitioner for the said offences would be determined by the Trial Court after sifting the evidentiary worth of the material produced before the same—The petitioner is admitted to postarrest bail. (Paras 1, 2, 4, 6, 7) (b) Administration of Justice— —Confession—It is trite that the confession of a co-accused can be used as circumstantial evidence against the other accused but only if the said confession is proved. (Para 4) (c) Administration of Justice— —Extra-judicial confession—Extra-judicial confession of an accused is a weak type of evidence which may be manoeuvred by the prosecution in any case where direct connecting evidence does not come their way—It is settled law that evidentiary value of such type of evidence i.e. evidence of last seen and extra-judicial confession shall be determined by Trial Court at an appropriate stage. (Para 4) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 786 Azad Jammu & Kashmir (AJ&K) High Court Other Citation: None Saad Ansari, Advocate vs Muhammad Shafique and another RAZA ALI KHAN, J. Service of Summons in criminal cases— —The person sought to be summoned if is in the active service of the State or of any statutory body then he shall be summoned through head of the office in which he is employed—The superior Courts have held in various judgments that proper course to serve process is that the summon be issued through respective departments and it is illegal to ask the party to produce them on its own responsibility—In this regard I may refer case titled The State v. Bagh Hussain and others reported as 1980 P.Cr.L.J 86—The relevant observations is reproduced: “The complainant and the counsel for the respondent were heard and the perusal of the interlocutory orders of the Trial Court was also accordingly made—Evidently, Muhammad Azeem, Patwari and Sabir Hussain, S.I. who investigated the case are employees of the Government—The proper procedure to serve the process issued by the Court for their attendance before the High Court to give evidence, was through their respective officers to whom they were subordinate—It seems that nothing of the sort was done by the Trial Court while issuing the process of these witnesses—The Patwari was to be served through the Tehsildar concerned and the S.I. was to be served through the Superintendent of Police of the District concerned—It is also the duty of the Court to summon the witnesses who are Government employees through the immediate Heads of the Departments concerned as pointed out earlier—This method for service of the process issued by the Court was not followed by the Trial Court and the Prosecution was ordered to produce these witnesses on their own responsibility—This responsibility, without issue of process of summoning the witnesses, could not be forced upon the Prosecution—However, the Court could have asked the Prosecuting Agency to get the service of the summonses issued by the Court effected through the Officers concerned, otherwise their evidence would be closed by the Trial Court”. (Paras 7, 8) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 772 Lahore High Court Other Citation: 2021 [M] S L R 321 Shabana @ Ayesha Bibi vs The State ALI BAQAR NAJAFI and SYED SHAHBAZ ALI RIZVI, JJ. Control of Narcotic Substances Act (XXV of 1997)— —Ss. 9(c) & 15—It was recently reiterated in case titled Khair-ul-Bashar versus The State reported as 2019 SCMR 930 that said Rule necessarily requires test and analysis by following the protocols on the alleged drugs by mentioning each test and the names of all the protocols applied to carry out the result without, the report so prepared by the Government Analyst shall be invalid—Page 935 of the said judgment is reproduced: “……Imam Bakhsh purposively interprets the Act and finds Rule 6 to be a mandatory provision regarding information to be reflected in the Report of the Analysts—Hence, the argument that Imam Bakhsh is per incuriam, is hopelessly misconceived and rejected—For completion of record it is pointed out that review filed in Imam Bakhsh was also dismissed vide an earlier order dated 06.02.2019”. (Para 6) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 770 Lahore High Court Other Citation: 2020 Y L R 1970 Muhammad Shahbaz alias Chamma Tinda vs The State MALIK SHAHZAD AHMAD KHAN and SADIQ MAHMUD KHURRAM, JJ. Criminal Procedure Code (V of 1898)— —S. 426—Conviction and sentence u/s. 9(c), Control of Narcotic Substances Act, 1997—Recovery of 1350 gram charas—Suspension of sentence—Prayer for—Petitioner was imprisoned for 6 years’ R.I. whereas he was behind bars since his arrest—He had already undergone imprisonment of 2 years and ten months—Possibility could not be ruled out that petitioner might served his entire sentence—In that eventuality, purpose of filing of appeal before High Court shall become infructuous—Sentence awarded by trial Court to petitioner on recovery of 1350 grams charas, was against sentencing policy settled by High Court in reported by Supreme Court in a reported cases (PLD 2009 Lah. 362) and was affirmend case (PLD 2012 SC 380)—Held: Sentence of appellant/accused was suspended subject to furnishing bail bonds with one surety. (Paras 4, 5, 6) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 761 Sindh High Court (Karachi) Other Citation: None Raja Abdul Hameed vs Mashooq Ali Rajpar and others ABDUL MAALIK GADDI, J. Pakistan Penal Code (XLV of 1860)— —S. 489-F—From the perusal of evidence recorded by trial Court and impugned judgment, it appears that the judgment of the trial Court is based upon sound reasons—Respondent No. 1 / accused was acquitted by trial Court mainly on the ground that the evidence of the prosecution witnesses on material particulars of the case is contradictory and untrustworthy—During the course of arguments, I have specifically asked the question from Deputy Prosecutor General, Sindh to point out/show any piece of evidence, which is not supportable from evidence on record, again no satisfactory answer was available with him—Perusal of record shows that the trial Court has rightly acquitted the respondent No. 1 through impugned judgment, which is neither perverse nor arbitrary—So far the appeal against acquittal is concerned after acquittal respondent No. 1/accused has acquired double presumption of innocence, Supreme Court would interfere only if the judgment/order was arbitrarily, capricious or against the record, but in this case, there are number of infirmities and the impugned judgment of acquittal in my considered view did not suffer from any misreading and non-reading of the evidence—As regard to the consideration warranting the interference in appeal against acquittal and an appeal against conviction principle has been laid down by the Supreme Court in various judgments—In case of State/Government of Sindh through Advocate General Sindh, Karachi versus Sobharo reported in 1993 SCMR 585, Supreme Court of Pakistan has laid down the principle that in the case of appeal against acquittal while evaluating the evidence distinction is to be made in appeal against conviction and appeal against acquittal—Interference in the latter case is to be made when there is only gross misreading of evidence, resulting in miscarriage of justice—Relevant portion is reproduced: “14. We are fully satisfied with appraisal of evidence done by the trial Court and we are of the view that evaluating the evidence, difference is to be maintained in appeal from conviction and acquittal appeal and in the latter case interference is to be made only when there is gross misreading of evidence resulting in miscarriage of justice—Reference can be made to the case of Yar Muhammad and others v. The State (1992 SCMR 96)—In consequence this appeal has no merits and is dismissed. (Para 13) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 749 Lahore High Court Other Citation: None Habib Ullah, etc. vs The State SADAQAT ALI KHAN and SHEHRAM SARWAR CH., JJ. (a) Pakistan Penal Code (XLV of 1860)— —Ss. 302 & 324—Appellant neither opted to appear as witness u/s. 340(2), Cr.P.C., nor produced any oral defence evidence, however, he produced documents (Ex.DA to Ex.DJ) in his defence—Considering above, it is concluded that the appellant (Malik Muhammad Siddique) has failed to prove his defence plea and trial Court has rightly discarded his defence plea with sufficient reasons—In view of the above discussion, if evidence of motive and recovery of gun is excluded from consideration, even then the prosecution has proved its case beyond shadow of doubt against Muhammad Siddique appellant through the evidence discussed earlier—Coming to the quantum of sentence, we have noted some mitigating circumstances in this case—Firstly, recovery of gun on pointing out of Malik Muhammad Siddique appellant in presence of negative report of FSL is inconsequential in the present case—Secondly, single fire shot has been attributed to appellant (Malik Muhammad Siddique) and on the person of Farrukh Ramzan deceased against the appellant—Thirdly, motive story has also been discarded with the reasons mentioned in para-16 of this judgment—It is not determinable in this case as to what was the real cause of occurrence and as to what had actually happened immediately before the occurrence which resulted into present unfortunate incident—Therefore, in our view death sentence awarded to the appellant (Malik Muhammad Siddique) is harsh. (Paras 19, 20, 21) (b) Benefit of doubt— —It is well-recognized principle by now that the accused is entitled to the benefit of doubt as an extenuating circumstance while deciding his question of sentence as well—Reliance is placed on case titled Mir Muhammad alias Miro Vs. The State (2009 SCMR 1188) wherein the Supreme Court of Pakistan has observed at page 1191 as: “It will not be out of place to emphasize that in criminal cases the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people—Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence. (Para 22) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 735 Lahore High Court Other Citation: None Shakil and others vs The State, etc. SARDAR MUHAMMAD SARFRAZ DOGAR and ASJAD JAVAID GHURAL, JJ. Pakistan Penal Code (XLV of 1860)— —Ss. 302/324/148/149 (Section 337-F(i) & F(iii) added subsequently)—The prosecution case is that it was Jamshaid acquitted accused who initiated the aggression on the deceased as he opened the first fire with his rifle 244 which hit on the chest of the deceased who after sustaining the said injury fell down on the ground as such the role of the acquitted accused Jamshaid in the crime was more serious and grave in nature but in spite of that the trial Court has acquitted him—The role attributed to the present appellant in the FIR is that he alongwith Dilshad and Zulfiqar also made firing with their respective weapons, whereas, while appearing before the trial Court the eye-witnesses have changed their version to the extent of Ajmal appellant while describing the role that he made second fire with pistol 30 bore which hit on the left arm of the deceased—Despite of this clear charge, the trial Court gave a clearance chit to Jamshaid co-accused, exonerating him from the charge of committing the murder of the deceased or not holding him equal and more effective partner in the crime then selecting the appellant on misconceived notion for conviction and awarding him capital sentence is neither understandable nor it was warranted in law—Out of the three eye-witnesses produced before the trial Court, Muhammad Arif (PW19) received injuries during the occurrence—The injuries on his person were canvassed as stamp of his presence at the crime scene—However, it is equally important to observe here that there are multiple factors which provide sanctity to the statement of a witness and the receipt of injuries during the occurrence is one of them—In order to attach legal credence to the statement of such a witness, the Courts are obliged to scrutinize his testimony and if the recital of it gives rise to a doubt about his statement, its benefit is to be given to the accused—It evinces from the record that the statement of Muhammad Arif (PW19) under section 161, Cr.P.C. was recorded after about five days of registration of F.I.R. and that too without affording any explanation in this regard—For ready reference, an extract from the cross-examination of Muhammad Arif (PW19) is being reproduced here: “My statement u/s. 161, Cr.P.C. was recorded by the I.O. in this case on 2.5.2012—I got recorded in my statement u/s. 161, Cr.P.C. that was present in the mosque when altercation between Zameer, Ajmal and Shakil took place”—Such unexplained delay in recording 161, Cr.P.C. statement has made Muhammad Arif (PW19) unworthy of any credence and makes it equally unsafe to award or to sustain the conviction on the basis thereof— Moreso, when it is evident from record that no explanation for the delay in recording his police statement, even frail in nature, spells out from the record—While holding so, we are guided by the observation of the Supreme Court of Pakistan expressed in the case titled as “Muhammad Asif v. The State” (2017 P.S.C. (Crl) 120 = 2017 SCMR 486) wherein it was observed as: “There is a long line of authorities/precedents of Supreme Court and the High Courts that even one or two days’ unexplained delay in recording the statement of eye-witness would be fatal and testimony of such witnesses cannot be safely relied upon”—Muhammad Afzal, son of the complainant had also been injured during the selfsame incident yet despite being natural and independent witness was not produced by the prosecution during the trial and such feature of the case has left High Court with no other option but to draw an inference in accordance with the provisions of Article 129, Illustration (g) of Qanun-e-Shahadat Order, 1984, that had he entered the witnessbox he would have deposed against the prosecution—Reliance is placed on “Haroon Shafique Vs. The State and others” (2018 P.S.C. (Crl.) 971 = 2018 SCMR 2118), and “Haq Nawaz v. The State” (2019 P.S.C. (Crl.) 641 = 2018 SCMR 21)—Dr. Amjad Ali Kazmi (PW15), conducted the post-mortem examination on the dead-body of Ali Sher deceased on 28.4.2012 at 5.30 a.m. and found the following injuries on his person: (1) A lacerated wound of size (0.5 cm x 0.5 cm) on front of left side of chest, wound was 8 cm from nipple, 1 cm from midline, 19 cm from umbilicus— Burning and blackening was present on skin, margins were inverted, (entry wound)—(2) A lacerated wound of size (1.5 cm x 1.5 cm) on lateral side of left side of chest—Wound was 12 cm from left nipple, 11cm from left axilla— Margins of wound were reverted exit wound)—(3) A lacerated wound of size (0.5 cm x 0.5 cm) on left arm, internal side—Wound was 10 cm from left axilla and 10 cm from left cubital foosa—Burning and blackening present (entry wound)—(4) A lacerated wound of size (0.5 cm x 0.5 cm) on left arm—Wound was 10 cm from left elbow joint and 21 cm from left shoulder (top of the shoulder), (exit wound)—As per opinion of the doctor time between injury and death was within few minutes whereas the time elapsed between death and post-mortem was within 12 to 14 hours— In his opinion all the injuries were anti-mortem in nature and were caused by fire-arm weapons and injuries No. 1, 2, 3 and 4 were sufficient to cause death in an ordinary course of nature—From the perusal of the above, the size of injury No. 1 which is an entry wound is 0.5 cm x 0.5 cm, similarly, the size of injury No. 3 which is also an entry wound is also 0.5 cm x 0.5 cm, thus, the size of both the entry wounds/injuries are exactly same—Furthermore, Dr. Amjad Ali Kazmi, (PW15) during the cross-examination has stated that it is possible that both the injuries are inflicted with the same weapon—In this regard, it is significant to point out here that neither in the FIR nor in the statements before the trial Court, Ajmal appellant was attributed any injury on the chest of the deceased—Thus, if the said injury on the chest of the deceased which could be caused by the same weapon has not been attributed to the appellant then the second injury on the left arm of the deceased by the same weapon raised an eyebrow qua the allegation alleged against Ajmal appellant—But in spite of that the trial Court has only convicted the appellant for the commission of the offence while attributing both the injuries on the person of the deceased in utter disregard of the principles settled by the august Supreme Court of Pakistan—In a criminal trial no presumption can be drawn against the accused person as it is a cardinal principle of justice that no one should be construed into a crime without legal proof/evidence, sufficient to be acted upon—No care and caution was observed in the present case in light of this principle—Reliance in this regard is placed on “Irfan Ali versus The State” (2015 P.S.C. Crl. 447 = 2015 SCMR 840)—No specification of said fire-arm weapons were given in the complaint (Ex. PT), F.I.R. (Ex. PS) or in the statement recorded under section 161, Cr.P.C.—From the place of occurrence four empties of 12 bore (P-8/1-4), four empties of pistol 30 bore (P-9/1- 4), twelve empties of rifle 44 bore (P-10/1-12) were also collected and were taken into possession through recovery memo. (Ex. PF), attested by Aamir Sattar (PW6) and Muhammad Akbar (given up PW)—All the three eye-witnesses, namely, Rana Ali Nawaz (PW17), Muhammad Arif injured (PW19) and Muhammad Akhtar (PW20) for the first time during trial specified the weapons and alleged that such and such specific weapons were in the hands of such and such accused—All the three eye-witnesses were duly confronted with their previous statements where such specification of weapons was not mentioned—Reliance is placed on “Sardar Bibi and another Vs. Munir Ahmed and others” (2018 P.S.C. (Crl.) 45 = 2017 SCMR 344), wherein the Supreme Court of Pakistan has held as: “No specification of said firearm weapons were given in the F.I.R. or in the statement under section 161, Cr.P.C.—From the place of occurrence, only two crime empties of 12 bore have been recovered—Both the witnesses for the first time during trial specified the weapons and alleged that such and such specific weapon was in the hand of such and such accused— Both the witnesses had been duly confronted with their previous statements where such specification of weapons was not mentioned. (Paras 10, 11, 12, 13, 14, 15) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 714 Peshawar High Court Peshawar Other Citation: 2021 P L R Note 19 Adil Bacha vs The State, etc. ROOH-UL-AMIN KHAN and S.M. ATTIQUE SHAH, JJ. (a) Pakistan Penal Code (XLV of 1860)— —The hon’ble Supreme Court in case titled, “Mst. Rukhsana Begum and others vs Sajjad and others” (2017 PSC (Crl) 14 = 2017 SCMR 596), has explained the meaning of a “chance witness”, in the following words: “Chance witness” was one who, in the normal course was not supposed to be present on the crime spot unless he offered cogent, convincing and believable explanation justifying his presence there”—No explanation, much less plausible has been furnished by the complainant so as to justify his presence in the house of the deceased—Rather sufficient circumstances have been disclosed by the complainant in his statement on the basis of which his presence in the house of the deceased cannot be admitted by any stretch of imagination. (Para 10) (b) Confession— —The confessional statements of appellant Adil Bacha, the same is exculpatory—He has shown complete ignorance about his involvement in the murder of the deceased—He disclosed that on the night of occurrence he was informed by appellant Sahid through a text message to reach the house of appellant Adil Bacha for chit chat—After sometime, he reached his house and they both left for the house of accused Jabir Ali Shah on a motorbike, where the motorbike was parked at some distance from the house of accused Jabir Ali Shah and he was told by appellant Sahid to guard the motorcycle and wait for him—Appellant Sahid went towards the house of the deceased and after sometime he (Adil Bacha) heard the report of fire shots and noticed appellant Sahid along with accused Jabir Ali Shah running towards him—He inquired from them as to whether someone has fired at them or they have fired at someone—In response he was told by them not to talk and they all proceeded to Darra Petrol Pump on the same motorbike, where accused Jabir Ali Shah was informed by someone about murder of his father on mobile call—In the confessional statement he has shown his ignorance about the occurrence and similarly he has also not disclosed about the role of co-accused— Thorough perusal of the confessional statements of both the accused reveals that both are contradictory with each other on material fact—According to the statement of accused Adil Bacha when he along with accused Sahid reached the spot and he was directed to stand near the motorbike and wait for him—He has not uttered a single word about arrival of accused Jabir Ali Shah there i.e. the place of parking of motorcycle, whereas, according to accused Jabir Ali Shah when appellants Sahid and Adil Bacha reached the spot, he meet them, prepared plan and directed appellant Adil Bacha to wait for them near the motorcycle and he along with Sahid went towards the house of the deceased—Again according to statement of accused Jabir Ali Shah he told accused Sahid on phone to bring pistol, whereas, accused Adil Bacha who accompanied accused Sahid to the spot has not uttered a single word about availability of any pistol with appellant Sahid—Besides, confessional statement of accused Jabir Ali Shah is not corroborated by any other strong evidence—The I.O. has not brought on file, record of text message allegedly sent by appellant Sahid to appellant Adil Bacha—Similarly, he has also not procured record of the alleged call of appellant Sahid made to appellant Adil Bacha on the night of occurrence in respect of their visit to the house of Jabir Ali Shah for chit chat— Similar is the case of the call of accused Jabir Ali Shah allegedly made to appellant Sahid regarding reaching the spot along with pistol—The motorcycle used in the commission of offence has also not been recovered—Appellant Sahid who had been given specific role of firing at the deceased has not recorded any confessional statement. (Paras 11, 12) (c) Guidelines for Recording Confession— —Strict guidelines for the Magistrate, recording confession, to be followed without any exception, which for the sake of convenience and ready reference are reproduced below: “Before recording confession and that too in crime entailing capital punishment, the recording Magistrate had to essentially observe all the mandatory precautions (laid down in the High Court Rules and Orders)—Fundamental logic behind the same was that, all signs of fear inculcated by the investigating agency in the mind of the accused were to be shed out and he was to be provided full assurance that in case he was not guilty or was not making a confessional voluntarily then in that case he would not be handed over back to the police—Thereafter, sufficient time for reflection was to be given after the first warning was administered—At the expiry of such time, recording Magistrate had to administer the second warning and the accused shall be assured that now he was in the safe hands—All police officials whether in uniform or otherwise, including Naib Court attached to the Court must be kept outside the court and beyond the view of the accused—After observing all these legal requirements if the accused person was willing to confess then, all required questions as formulated by the High court Rules and Orders should be put to him and the answers given, be recorded in the words spoken by him- –Statement of accused should be recorded by the Magistrate with his own hand and in case there was a genuine compelling reason then, a special note was to be given that the same was dictated to a responsible official of the Court like stenographer or reader and oath shall also be administered to such official that he would correctly type or writ the true and correct version—In case, the accused was illiterate, and made a confession, which was recorded in another language i.e. Urdu or English, then the same should be read-over and explained to him in the language he fully understood, and thereafter a certificate, as required under section 364 Cr.P.C. with regard to these proceedings should be given by the Magistrate under his seal and signatures and the accused shall be sent to jail on judicial remand and during this process at no occasion he shall be handed over to any police official/officer whether he was Naib Court wearing police uniform or any other police official/officer, because such careless dispensation would considerably diminish the voluntary nature of the confession, made by the accused. (Para 13) (d) Benefit of Doubt— —The prosecution case is pregnant with doubts benefit of which should have been extended to the appellants but the learned trial Court by not appreciating the evidence in its true perspective arrived at a wrong conclusion by holding the appellants guilty of the offence—As per golden principle of benefit of doubt one substantial doubt would be enough for acquittal of the accused—Under principle enunciated by the august apex court of the country through different pronouncements, by now it is settled law that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in prosecution case must be resolved in favour of the accused. (Para 16) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 709 Balochistan High Court Other Citation: P L D 2019 Balochistan 63 Rasool Bakhsh vs The State JAMAL KHAN MANDOKHAIL and ROZI KHAN BARRECH, JJ. (a) Criminal Procedure Code (V of 1898)— —Ss. 87 & 88—Issuance of process—Proclaimed offender, declaration of—Procedure—Accused as aggrieved of order passed by Trial Court declaring him proclaimed offender—Plea raised by accused was that he was not served process—Validity—Trial court was bound to repeat warrants of arrest for some other date but needful was not done and only an attempt to serve notices upon accused was not enough—Important ingredients of Ss. 87 & 88 Cr.P.C. were not fulfilled by Trial Court for serving warrants—Warrants of accused were not affixed on some conspicuous place, i.e., house or home where accused resided—Trial Court did not receive any report from concerned law enforcement agency to know whether warrants were served upon accused or not—Such procedure was contrary to provisions of S.87 Cr.P.C. in circumstances. (Para 6) (b) National Accountability Ordinance (XVIII of 1999)— —S. 31-A—Abscondance to avoid service of warrants—Prerequisites —Prosecution is required to prove firstly, that accused is absconder; secondly, that court or any Authority or Officer has issued process under National Accountability Ordinance, 1999; thirdly, that accused has absconded with intention to avoid service of such process; and fourthly, manner in which he evaded or avoided service on himself or concealed himself with intention to screen out from proceedings or punishment under National Accountability Ordinance, 1999. (Para 7) (c) National Accountability Ordinance (XVIII of 1999)— —Ss. 31-A & 32—Appeal—Limitation—Conviction in absentia— Accused was convicted under S.31-A of National Accountability Ordinance, 1999 in his absence when he was declared proclaimed offender—Plea raised by authorities was that appeal was time barred—Validity—No opportunity was afforded to accused even otherwise, no evidence was called for by Trial Court and he was convicted only on basis of unserved process which was in sheer violation of S.31- A of National Accountability Ordinance, 1999—Judgment convicting accused was passed in absentia and he had no knowledge of passing of conviction against him therefore, limitation would run from date of gaining knowledge by accused—Moment the accused was arrested and he came to know about his conviction in absentia, he challenged his conviction—High Court set aside conviction and sentence awarded by Trial Court as prosecution had failed to prove that accused deliberately or intentionally evaded or avoided to appear before Trial Court to face trial—Appeal was allowed in circumstances. (Para 8) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 704 Lahore High Court Other Citation: None Shaukat Ali & 3 others vs The State MUHAMMAD YAWAR ALI and SHAHID HAMEED DAR, JJ. Pakistan Penal Code (XLV of 1860)— —S. 302(b)—Deputy Prosecutor General Punjab appearing on behalf of the State and counsel for the complainant submitted that since the parties have arrived at a compromise and the offences are compoundable with the consent of the Court and that the interest of the minor legal heirs of the deceased had been properly safeguarded, they have no objection to the acceptance of the appeal and acquittal of the appellants—While keeping in view the aforesaid situation, we are satisfied with regard to the genuineness and voluntariness of the compromise, finalized between the parties—Insofar as interest of the minor legal heirs is concerned, suffice it to say, it has been meticulously and sufficiently safe-guarded through purchase of Defence Saving Certificates in their names, as noted above— Accordingly, we assent to the acclaimed compromise, leading to acceptance of Crl. Misc. No. 2797/M-2012. (Paras 7, 8) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 697 Balochistan High Court Other Citation: 2019 P Cr. L J 1456 Abdul Rashid vs The State ABDULLAH BALOCH and MUHAMMAD HASHIM KHAN KAKAR, JJ. (a) Pakistan Penal Code (XLV of 1860)— —S. 302—Criminal Procedure Code, 1898, Ss. 382-B/544-A—Mere relationship of a witness with the deceased or the complainant party itself would not diminishes the evidentiary value of his statement, but for making reliance on such statement, especially in heinous crime of murder, it is to be seen whether the said witness has escaped from the acid test of cross-examination undamaged, unshaken or the defence has succeeded in giving jolt to his testimony—In the case in hand, the PW-9 being sole eye-witness of the occurrence has failed to establish his presence at the relevant time, as such, no implicit reliance could be placed upon the alleged direct testimony of alleged eye-witness, who otherwise is the son of deceased and is interested witness. (Paras 1, 8) (b) Medical Evidence and its evidentiary value— —The fact remains that medical evidence is only used for confirmation of ocular evidence regarding seat of injury, time of occurrence and weapon of offence used, etc. but medical evidence itself does not constitute any corroboration qua the identity of accused person to prove their culpability—Reliance in this regard can be placed on the case of Muhammad Sharif and another v. The State (1997 SCMR 866)—The reappraisal of the statements of all the witnesses being interested and closely related with each other have drawn a different sketch of the occurrence creating doubts in the case of prosecution—The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt is created, benefit of the same must go to the accused and it would be sufficient to disbelieve the prosecution story and acquit the accused—Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345, wherein the Supreme Court has held: “the concept of benefit of doubt to an accused is deep-rooted in our country—For giving him benefit of doubt 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 accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. (Paras 10, 11) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 683 Lahore High Court Other Citation: None Muhammad Younas and another vs The State CH. ABDUL AZIZ, J. Pakistan Penal Code (XLV of 1860)— —Ss. 364, 302, 148, 149—No doubt the testimony of a chance witness is not destined to be discarded out-rightly and instead can still be looked into if corroborated from some other evidence of unimpeachable source—Reference in this respect can be made to the case of Mst. Sughra Begum and another v. Qaiser Pervez and others (2015 PSC Crl. 476 = 2015 SCMR 1142) wherein the Supreme Court of Pakistan observed as: “A chance witness, in legal parlance is the one who claims that he was present on the crime spot at the fateful time, albeit, his presence there was a sheer chance as in the ordinary course of business, place of residence and normal course of events, he was not supposed to be present on the spot but at a place where he resides, carries on business or runs day to day life affairs—It is in this context that the testimony of chance witness, ordinarily, is not accepted unless justifiable reasons are shown to establish his presence at the crime scene at the relevant time—In normal course, the presumption under the law would operate about his absence from the crime spot—True that in rare cases, the testimony of chance witness may be relied upon, provided some convincing explanations appealing to prudent mind for his presence on the crime spot are put forth, when the occurrence took place otherwise, his testimony would fall within the category of suspect evidence and cannot be accepted without a pinch of salt”—In another reported case titled as G.M. Niaz v. The State (2018 SCMR 506), Supreme Court of Pakistan while appraising the evidence of chance witnesses observed as: “The ocular account of the incident in issue had been furnished before the trial Court by Mahboob Ahmed complainant (PW6) and Qasim Ali (PW5) who were a brother and a paternal cousin of the deceased respectively—The said eye-witnesses were not only very closely related to the deceased but they were also chance witnesses who had utterly failed to bring anything on the record establishing their claimed presence with the deceased at the relevant time—Mahboob Ahmed complainant (PW6) had his residence far away from the spot and the same had not even been shown anywhere close to the place of occurrence in the stie-plan”—High Court is also mindful of the fact that the occurrence took place at the odd hours of the night, hence, prosecution was obliged to explain satisfactorily the source of light, in order to rule out the possibility of mistaken identity—It is noticed that none of the witnesses made reference to any such source of light. (Para 12) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 673 Lahore High Court Other Citation: None Allah Bakhsh alias Bakhshi vs The State FAROOQ HAIDER and CH. MUSHTAQ AHMAD, JJ. Anti-Terrorism Act (XXVII of 1997)— —S. 7(e) of the Act—Section: 340 (2) Cr.P.C. on oath in the Court; aforementioned documents produced in defence were though got exhibited by the appellant yet their contents were not got duly proved; furthermore, aforestated defence version by no way hits the worth of prosecution case; same could not cause any dent in the case of prosecution, particularly, when any reason to falsely implicate the appellant by the complainant/victim/abductee in this case could not come on record; therefore, defence plea carries no value—It is important to mention here that when case of prosecution has been kept in juxtaposition with the defence plea/evidence, then it has been found that prosecution has proved its case up to hilt beyond shadow of doubt through confidence inspiring evidence against the appellant whereas appellant’s plea/version could not repel/refute the same and even otherwise remained unproved and unconvincing. (Para 7) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 17 Sindh High Court (Hyderabad) Other Citation: 2021 [M] S L J Note 19 Abdul Qahir vs The State ABDUL MAALIK GADDI, J. Pakistan Penal Code (XLV of 1860)— —Ss. 269, 270 & 337-J—In this case, police have failed to examine any person who allegedly was found purchasing Gutka from applicant and/or the applicant was administering the same to him and such complaint has ever been made by any person from society to show that applicant had been involved in such an injurious case which is the basic ingredient of Section 337-J, PPC—The alleged hazardous material was also not recovered from the exclusive possession of applicant—Furthermore, the place of incident is stated to be a busy road but no private person has been associated to witness the recovery proceedings nor any effort in this regard has been made by the complainant who himself has investigated the matter, therefore, false implication of applicant/accused at this stage cannot be ruled out– -All the Sections are bailable except Section 337-J, PPC which is yet to be established by prosecution after recording evidence—Mere fact that offence carries or involved with maximum punishment does not intercept the way to withhold concession of bail to applicant if otherwise attending circumstances may support his case—Case has been challaned and all the witnesses in this case are police officials, therefore, there is no likelihood that the applicant may tamper with the prosecution evidence—It is settled law that every accused is presumed to be blue eye boy of law until and unless he is found guilty of charge and law cannot be stretched upon in favour of prosecution particularly at bail stage—The instant case as per contents of FIR if may be presumed to be true even then Safina Gutka have not been shown to have been recovered from physical and exclusive possession of applicant and he being driver of vehicle cannot be held responsible particularly when police have failed to extend scope of investigation wherefrom alleged Safina Gutka were brought and were to be destinated to. (Para 5) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 16 Lahore High Court Other Citation: None Sabir Rehman vs The ASJ/Ex-Officio Justice of Peace, etc CH. ABDUL AZIZ, J. Criminal Procedure Code (V of 1898)— —Ss. 22-A, 22-B—It is settled law that the Ex-Officio Justice of Peace is not required to accept the request of registration of FIR in mechanical manner—He is obliged to attend the facts and circumstances of the case and then to see whether a cognizable offence is made out or not—If he arrives at the conclusion that no cognizable offence is made out or the petition is aimed at gaining some undue advantages, he is all competent to turn down the request for registration of criminal case—In this regard, reference can be made to the cases of Muhammad Mushtaq vs. Additional Sessions Judge, Lahore and others (2008 YLR 2301) and Nafeer A. Malik vs. Government of Punjab through Home Secretary, Lahore and 3 others (PLJ 2012 Lahore 581)—Since, the order of the Ex-officio Justice of Peace is found to be non-speaking in nature and contrary to the statutory as well as the judicial directions hence, the same is set aside. (Para 5) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 15 Lahore High Court Other Citation: None Muhammad Hayat vs The State & another CH. ABDUL AZIZ, J. Pakistan Penal Code (XLV of 1860)— —S. 337-F(v)—After having heard counsel for the petitioner and gone through the impugned judgments, I find that the petitioner had been convicted and sentenced by the trial Court on a judgment with correct appreciation of law and facts—The impugned judgment passed by the trial Court is well-reasoned and hardly contains any element, which could be termed as unlawful—The ocular account has been furnished by as many as two witnesses (P.W.1 & P.W.2) and their testimonies are not only coherent inter-se but also corroborated through unimpeachable medical evidence— The petitioner, according to the prosecution case, was armed with club, by means of which he inflicted blow on the calf of right leg of Wali Muhammad—The medico-legal report (Exh.PE) of Wali Muhammad (PW.2) fully corroborated the said charge, as it showed abraded wound of 1½ cm/ 1½ cm on front lower 1/3 of right leg just above the right ankle surrounded with the swelling around the whole of the lower of 1/3 of right leg with painful movement, involving the right ankle joint—The impugned judgment of the trial Court is not hit by any infirmity nor suffers from non-reading or misreading of evidence. (Para 7) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 14 Lahore High Court Other Citation: P L D 2020 Lahore 931 Iftikhar Ahmed vs The State and others SHAHID BILAL HASSAN, J. Pakistan Penal Code (XLV of 1860)— —S. 406—In order to properly understand the actual meaning and purpose of this provision, it is to be read with other provisions of Chapter V of the Criminal Procedure Code, 1898 and is not to be read in isolation—This Chapter relates to arrest, escape and retaking; it is in section 46, Cr.P.C. as to how the arrest is made and then continues to specify as to how in certain conditions the arrest has to be affected under sections 49 to 53, Cr.P.C.—Sections 59 and 60, Cr.P.C. lay down that after a person is arrested, he has to be taken to a taken Magistrate or Officer incharge of the police station—Section 61 provides that no person can be detained for more than 24 hours and by virtue of section 62, Cr.P.C. every arrest has to be reported to the concerned District Magistrate or Sub-Divisional Magistrate within whose limits the arrest has been made; then section 63, Cr.P.C., in the same run, prescribes that once a person is arrested then he cannot be discharged unless three conditions are fulfilled as have been mentioned above under the said section—It means, once a person is arrested by the police, he cannot be discharged by the police itself—Perceptibly for the reason that the powers of arrest and discharge were not intended to be conferred on the police officials and intervention by the Magistrate was considered essential by the legislatures—As to how this power of section 63, Cr.P.C. has to be exercised, section 169, Cr.P.C. is relevant, which is reproduced for ready reference: “169. If, upon an investigation under this Chapter, it appears to the officer incharge of the police station (or to the police officer making the investigation) that there is not sufficient evidence or reasonable ground of suspicion to justify the forwarding of the accused to a Magistrate, such officer shall, such person is in custody, release him on his executing a bond, with or without sureties, as such officer may direct, to appear, if and when so required, by a Magistrate empowered to take cognizance of the offence on a police report and to try the accused or (send) him for trial”—If section 63, Cr.P.C. is given the meaning that a Magistrate can discharge an accused of his own without any police report then this exercise of power seems to be contrary to the whole scheme described in this regard—If such was the intention of the legislature with regards to section 63, Cr.P.C., there was no need to include section 169 in the Code of Criminal Procedure, 1898—The epitome of the above discussion is that if sections 63 and 169, Cr.P.C. are read and considered together, one can easily infer that a Magistrate may discharge an accused person during investigation but the same would be done on the report of the police and not in the manner as has been done by the Magistrate in the present case—It was held in Muhammad Shafi and others v. S.H.O. and others (1999 P Cr. L J 1345) that criminal investigation should not be stifled or killed during its infancy as the same will be against the principles governing administration of justice and the same ratio was observed by a Division Bench of the Peshawar High Court in a judgment reported as The State through Advocate-General N.-W.F.P. v. Ubaidullah and another (2005 MLD 1883). (Paras 5, 6) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 13 Lahore High Court Other Citation: 2019 P Cr. L J Note 105 Muhammad Idrees vs Regional Police Officer, Sheikhupura, etc. MUHAMMAD WAHEED KHAN, J. (a) Constitution of Pakistan, 1973— —Art. 199—Writ petition—Through this writ petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has impugned the order dated 2.3.2018 passed by Regional Police Officer, Sheikhupura Region, RPO Office, Lahore/respondent No. 1 whereby the investigation of case F.I.R. No. 179 of 2017, dated 16.5.2017, registered with Police Station, Warburtun, District Nankana Sahib has been changed—The crux of arguments of counsel for the petitioner is that report under Section 173, Cr.P.C. has already been submitted before the Trial Court and the trial in this regard has commenced and keeping in view this situation it was not an occasion for respondent No. 1 to pass the impugned order whereby the second investigation of the instant case had been changed— On the other hand, counsel appearing on behalf of respondent No. 3 opposed the contention of the counsel for the petitioner and contends that in fact respondent No. 1 has passed the order on the recommendations of Regional Standing Board, Sheikhupura Region and it was well within the competence of respondent No. 1 to change the investigation in the instant case—Petition allowed. (Paras 1, 2, 3, ) (b) Change of investigation— —It reveals that since the report under Section 173, Cr.P.C. had already been submitted before the Trial Court and the Trial Court had taken the cognizance of the case and framed the charge against the accused persons on 10.2.2018 and after that the complainant of the instant F.I.R. respondent No. 3 moved an application to respondent No. 1 who after recommendations of the Regional Standing Board recommended for second change of investigation—As such, the order for change of investigation at that belated stage was not sustainable in view of the law laid down by the Hon’ble Supreme Court of Pakistan in case of Qari Muhammad Rafique v. Additional Inspector General of Police (Inv) Punjab and others (2014 SCMR 1499) and in the case of Muhammad Nasir Cheema v. Mazhar Javed and others (PLD 2007 Supreme Court 31). (Para 11) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R Note 12 Balochistan High Court Other Citation: None Najeebullah vs The State ABDULLAH BALOCH, J. Grounds for granting bail— —Perusal of record reveals that though the applicant (accused) has been nominated in the F.I.R., but the fact remains that no any role of firing was attributed to him—According to own case of the prosecution the applicant (accused) was empty handed at the relevant time, while as per the Medical report the deceased had received bullet injuries on his person—Though the contents of F.I.R. are showing the presence of the applicant (accused) at the place of occurrence, but the same is silent with regard to any sort of role that was played by the applicant (accused)—This fact alone makes it a case of further inquiry in order to ascertain as to whether the applicant (accused) had common intention and common object to commit the crime or his presence was unintentional—It has also been observed that the complainant through supplementary statement has attributed a role of controlling to the deceased by the present applicant (accused), but presently the complainant has failed to disclose as to why he has not mentioned the role of this applicant (accused) in the First Information Report—Such role assigned to the present applicant subsequently through supplementary statement creates a reasonable doubt about his participation in the commission of instant offence—Reliance in this regard has been taken from the case titled Allah Ditta v. The State and another (2014 P.Cr.L.J. 658), wherein it has been held that whenever no overt act is ascribed to the applicant (accused), the superior Courts are lenient towards admitting him to bail—According to the consistent view of the Supreme Court of Pakistan that when the case against the accused is covered under sub-section (2) of Section 497, Cr.P.C. he is entitled to the concession of bail as a matter of right—The tentative assessment of record prima-facie suggests that it is a case of further inquiry—Besides, investigation in the matter has been completed, trial commenced and admittedly the applicant (accused) is no more required for the purpose of investigation or probe—Thus keeping him behind the bars would not serve any fruitful purposes. (Paras 6, 7, 8) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 661 Lahore High Court Other Citation: None Nadeem vs The State, etc. SARDAR AHMED NAEEM and SADIQ MAHMUD KHURRAM, JJ. (a) Criminal Procedure Code (V of 1898)— —The appellants were tried by the Addl. Sessions Judge, in case F.I.R. No. 25 of 2016, dated 29.01.2016 registered at Police Station Shahsaddar Din, District D.G. Khan, under Sections 302, 392, P.P.C. for committing Qatl-e-Amd of the complainant’s brother namely Bashir Ahmad—The Trial Court vide judgment dated 16.06.2017 convicted Nadeem son of Abdul Majeed and sentenced him (i) Death under Section 302(b), P.P.C. as Tazir for committing Qatl-e-Amd of Bashir Ahmed deceased and pay Rs. 2 Lac as compensation under Section 544-A, Cr.P.C. and in default thereof, to further undergo six months of simple imprisonment—The convict was ordered to be hanged by his neck till dead; (ii) Life imprisonment under Section 394, P.P.C. and to pay fine of Rs. 50,000/- and in default thereof to further undergo simple imprisonment for a period of four months—The benefit available under Section 382-B, Cr.P.C. was given to the convict—No order was made regarding the running of the sentences as concurrent—The co-accused namely Sajjad Hussain son of Manzoor Hussain was acquitted of the charges bestowing him the benefit of doubt—Feeling aggrieved, convict lodged Criminal Appeal against his conviction and sentence—The Trial Court, submitted Murder Reference under Section 374, Cr.P.C. seeking confirmation or otherwise of the sentence awarded to appellant Nadeem son of Abdul Majeed—We intend to dispose of both the Criminal Appeal and Murder Reference. (Paras 1, 2) (b) Improvements of witness statement— —It only leads to only one conclusion that the witnesses were not present at the place of occurrence at the time of occurrence—The Supreme Court of Pakistan in the case of Muhammad Fazal v. Bashir Ahmad and another (2009 SCMR 1382) has held at page 1386: “It is settled principle of law that improvements of the witnesses to make the oral evidence in accordance with medical evidence causes serious doubt about the veracity of such witnesses as law laid down by Supreme Court in Shahbaz Khan Jakhrani’s case 1984 SCMR 42 and Muhammad Shafique Ahmad’s case PLD 1981 SC 472. (Para 13) (c) Conflict between ocular and medical evidence— — In such a case the ocular account is to be rejected as being contrary to the medical evidence—Reliance is placed on Barkat Ali v. Muhammad Asif and others (2007 SCMR 1812) where it has been observed: “It is a settled law that blackening appears on the dead-body in case the deceased has received injuries at a distance of 4 feet according to medical jurisprudence by Modi—It is a settled law that oral evidence cannot be accepted to the extent of its inconsistency with medical evidence—See Mardan Ali’s case 1989 SCMR 889, Bagh Ali’s case 1983 SCMR 1292, Sain Dad’s case 1972 SCMR 74 and Zardshad’s case 1969 SCMR 644. (Para 16) (d) Motive is corroboratory evidence— —It is an admitted rule of appreciation of evidence that motive and recovery are only corroborative pieces of evidence and if the ocular account is found to be unreliable then motive and recovery have no evidentiary value and lost their significance. (Para 17) (e) Benefit of doubt— —If only a single circumstance creating reasonable doubt in the mind of a prudent person is available then such benefit is to be extended to an accused not as a matter of concession but as of right—Reliance is placed on the binding judgment of the Supreme Court of Pakistan Muhammad Akram v. The State (2009 SCMR 230) in which it has been observed in paragraph No. 13 of page 236: 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 Supreme 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 circumstance creating doubts—If there is circumstances 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. (Para 18) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 656 Islamabad High Court Other Citation: None Sohail Akhtar vs The State FIAZ AHMAD ANJUM JANDRAN, J. Criminal Procedure Code (V of 1898)— —S. 497—Every sane person has knowledge of the act which he is performing—An act of rash and negligent driving on the one hand is admitted and claiming the benefit of concession of bail on the other hand is self-contradictory in nature—That one who is a sane person is presumed not to commit an unlawful act. The term ‘unlawful act’ as per Black’s Law Dictionary 11th Edition means “Conduct that is not authorized by law; a violation of a civil or criminal law”, therefore, in absence of valid licence, the alleged act would be an unlawful act—When a person is driving negligently and rashly not only endangers himself but also causes danger to the lives of others, including those who are on the road and those too, who are sitting with him—Although mens rea and guilty mind is not in existence but this Court believes that atleast act being committed/performed is not a lawful act because one who is driving the vehicle on the road without holding a required driving license is not permitted by the law to drive and is doing an unlawful act—The consequential effect of that unlawful act becomes more aggravated when same caused death of a young boy while paralysing the second one—The Hon’ble Supreme Court of Pakistan in a judgment reported as “Majid Naeem v. State and another” (PLJ 2011 SC 662) has expounded in the following terms by declining concession of bail in like offence: “Every sane person is presumed to know the consequences of any act of his commission or omission—A person driving a motorcar in a thickly populated busy bazaar of a city cannot be allowed to drive the vehicle at a speed of his own choice because it will put life of the others at risk—Such person may claim benefit of bail although he might have crushed a large number of people in a busy bazaar by driving at a speed, which he knows is likely to endanger the life of others—Every act of rash or negligent driving by a person neither can be condoned nor the discretionary power of the Court can be exercised in his favour because through his act of rash and negligent driving, a man of ordinary prudent can understand the consequences of his act that a large number of people would lose their lives; such conduct of accused person has also to be kept in mind”—The Hon’ble Lahore High Court in case reported as “Muhammad Yaqoob v. The State and another” (2018 PCr.LJ Note 19) where the accused had been subject of an F.I.R. wherein two young lads lost their lives, declined bail to the accused by observing that: “Complainant alleged that accused while driving a bus rashly and negligently, rammed it into a motorcycle whereon two young lads were killed—Driving license of accused was found tampered with and thus cancelled by motor licensing authority—Accused drove speedy vehicle unauthorizedly in a rash and negligent manner and killed two youths in their teens—Counsel for accused had already taken couple of adjournments to approach the parents of deceased for compromise but to no avail—Accused had show worst degree of rashness and negligence when he drove the passenger-bus and crashed it into the motorcycle of deceased-duo who were real brothers inter se—Accused’s case did not call for further probe into his guilt within the scope of S. 497(2), Cr.P.C.” In another judgment reported as “Sadaqat Ullah Khan v. The State and another” (2017 PCr.LJ Note 125 Lahore) bail in the like offence was refused on the ground of negligent driving and having no valid driving licence—Likewise, the Hon’ble Sindh Court in case reported as “Atta Muhammad v. The State” 2005 PCr.LJ 1648, declined bail to an accused of offence under Section 322 PPC by observing that “Offences of accidents were increasing day by day particularly at the hands of the drivers who ply transport vehicles without a licence or a valid or effective licence—Reasonable grounds existed to believe that accused was involved in the case. (Paras 8, 9, 10, 11, 12, 13) Table of Analysis Head Note Case Description Your Search returned total 101 P.Cr.R. ( Pakistan Current Criminal Ruling) 2021 [M] P Cr. R 649 Sindh High Court (Larkana) Other Citation: KLR 2021 Criminal Cases 163 Muhammad Ali Abro vs The State ZULFIQAR ALI SANGI, J. Pakistan Penal Code (XLV of 1860)— —Ss. 269, 270, 337-J PPC—All the witnesses are on same line that police recovered two sacks containing 35 packets in each and they separated one pocket from each sack for chemical examination and sealed the remaining pockets in same sacks—Police also sealed both two pockets which were separated from each sack for chemical examination— From the evidence of all these witnesses it is clear that only 34 pockets were sealed in each sack—The mashirnama of arrest and recovery so also FIR disclosed the same facts about the recovery and sealing—On careful consideration of evidence of the PW-1 Complainant it come on record that the sacks were de-sealed on the request of the learned I/C DPP for the state before the trial court and were found 35 pockets of Safina Gutka in each sack—Chemical examiner’s report also showed that two pockets were received at laboratory for the test—When the evidence of PW-1 is considered with the chemical examiner’s report it creates very serious doubt about the recovery of alleged Safina Gutka and if those pockets which were sent for chemical examination are included in the property brought before the court and was de-sealed it become 36 pockets in each sack which was not the case of prosecution—It is by now well settled that the prosecution is duty bound to prove its case beyond a reasonable doubt by producing reliable, trustworthy and confidence-inspiring evidence—It is also settled by now that benefit of a single circumstance, deducible from the record, intriguing upon the integrity of prosecution case, is to be extended to the accused without reservation; the case is fraught with many—It would be unsafe to maintain the conviction—Consequently the appeal is allowed and the Judgment dated 01-07-2020 passed by the learned Session Judge Larkana in session case No. 234/2020 re State V/S Muhammad Ali, being outcome of Crime No. 05/2020 of P.S Civil Lines. Larkana, U/S 269, 270, 337-J PPC is hereby set-aside and the appellant name above is acquitted form all the charges—He is present on bail, his bail bond is cancelled and surety furnished by him is also discharged. (Paras 15, 16)