Appreciation of Evidence

Citation Name : 2007 PCRLJ 721 SHARIAT-COURT-AZAD-KASHMIR
Side Appellant : IMRAN

Side Opponent : State
--Ss. 302(b), 324, 337-D, 338-D & 34---appreciation of evidence ---Cross-
examination---If any part of the statement of a witness was not challenged in the
cross-examination, it would be considered to have been admitted by the other
party---Statements of prosecution witnesses- could be relied upon against some
accused by rejecting against others.

--Ss. 302(b), 324, 337-D, 338-D & 34---appreciation of evidence --Presence of
accused at the time of occurrence had been proved--Occurrence had taken place
at the same time as was alleged by prosecution and prosecution's version stood
proved beyond any shadow of doubt---Style of cross-examination and
suggestions put to accused, also had given support to the prosecution case---
Time and date of occurrence, were also admitted by defence---Defence had
further admitted that deceased and injured prosecution witness had sustained
injuries during occurrence---Prosecution witnesses had fully supported
prosecution version---evidence of eye-witnesses was cogent, clear, convincing
and coherent, which by itself was sufficient for recording conviction of accused
without any further corroboration---Eye-witnesses had been found 'Adil' in
purgation, which had made their statements more reliable and worthy of
credence---Sufficient corroborating and confirmatory evidence had been
produced which had fully supported ocular version---Medical examination
report, was also in nature of corroboratory evidence ---Recovery of blood-
stained clothes of deceased with two signs of cut had fully been proved by
prosecution witnesses---Factum of recovery of knife used in occurrence had been
supported by independent witness and it had fully been proved that said knife
was used as a weapon of of fence---F.I.R. though was lodged after seven hours of
the occurrence, but said delay did not cast any doubt upon prosecution version
because injured who later on died was taken to Military Hospital---Usually
civilians were not allowed to make frequent visit to Army Hospitals---Even
otherwise accused could not derive any benefit on account of said delay because
identity of accused was not doubtful---All prosecution witnesses were not
closely related to complainant party, as two of them were independent witnesses
and their evidence to the extent of main accused was not only clear, cogent, but
was also convincing and reliable---Related witnesses also could not be termed as
interested witnesses especially when they had not nursed any grudge or rancor
against accused party---Non-recovery of blood-stained earth from the spot, could
not be held fatal to prosecution as at the night of occurrence due to heavy rain it
could not be collected---Motive had fully been established---Prosecution having
proved its case against accused by producing cogent, clear and convincing
evidence , he had rightly been convicted and sentenced---In absence of any
mitigating circumstances, his death sentence awarded by the Trial Court, was
maintained and it was further held that it would be in the interest of justice to
enhance the payment of "Arsh" payable by accused upto one-third of the total
amount of Diyyat. V

--Ss. 302, 324, 337-D, 338-D & 34---appreciation of evidence ---Benefit of doubt---
Case of co-accused was almost different from case of convicted accused as no
specific role had been ascribed to two of the co-accused and infliction of 'Chhuri'
blow ascribed to third co-accused on deceased was also doubtful---Detailed
scrutiny of evidence on record along with prosecution version put forward in
F.I.R. and charge-sheet under S.173, Cr.P.C., had made case of prosecution
suspicious and doubtful to the extent of said co-accused---Medical examination
report and post-mortem report did not corroborate allegations levelled against
co-accused---Prosecution version being inconsistent and self-contradictory to the
extent of co-accused, could not be relied upon--Benefit of slightest doubt arising
in the case would go in favour of co-accused---Prosecution had also failed to
prove existence of any common intention or pre-arranged plan---Trial Court had
fallen in grave error to pass an order of conviction and sentence against co-
accused by applying S.34, P.P.C.---Co-accused were entitled to be acquitted of
the charge---Section 34, P.P.C., could only be applied in the cases where it was
difficult to make a distinction between the individual accused or to prove exactly
what action was taken by each accused---No pre-concert or preplan or
preparation of co-accused in furtherance of common intention could be proved
beyond any shadow of reasonable doubt---Impugned judgment of the Trial
Court to the extent of co-accused, was set aside and they were acquitted from the
charge by giving them benefit of doubt, accordingly.

Side Appellant : TANVEER AHMAD
---S. 302---Criminal Procedure Code (V of 1898), Ss.340(2), 342 & 537---
appreciation of evidence ---Non-compliance with provisions of S.340(2), Cr.P.C.
was not curable under S.537, Cr.P.C.---Right of accused to give evidence on oath
in disproof of charges against him---Accused had himself opted to give evidence
on oath under S.340(2), Cr.P.C., but no opportunity was afforded to him to
examine himself---Trial Court, in circumstances had failed to discharge its legal
obligation under S.340(2), Cr.P.C., whereunder it had been made incumbent
upon the Court to afford an opportunity to an accused to give evidence on oath
to disprove the charge against him as an integral part of the Trial of the cases;
and the trial would be incomplete without such evidence ---Mere question put to
accused about defence and innocence while being examined under S.342, Cr.P.C.,
was not due compliance of the provisions of S.340(2), Cr.P.C. and where the Trial
Court failed to call accused under S.340(2), Cr.P.C. to give evidence on oath,
illegality committed by the Trial Court was not curable under S.537, Cr.P.C.---In
the present case an opportunity having not been afforded to accused to give
evidence on oath, trial not only was incomplete; but right of accused to appear
as his own witness, had been denied causing serious prejudice to his case---
Death sentence passed against accused by the Trial Court was not confirmed---
Conviction and sentence awarded to accused were set aside and case was
remanded to the Trial Court with direction to record statement of accused again
under S.340(2), Cr.P.C. and decide case afresh.
Citation Name : 2007 SCMR 761 SUPREME-COURT

Side Appellant : Mst. MUHAMMADI and others
Side Opponent : GHULAM NABI
---Art. 185---Appeal to Supreme Court---Concurrent findings of fact of Courts
below-Interference with such findings by Supreme Court---Scope---When such
findings were reasonable and not arrived at in disregard of any prove on of law
or any accepted principle concerning appreciation of evidence , then Supreme
Court would, normally, not interfere with same even though different view
might also be possible.

Side Appellant : REHMATULLAH and others
Side Opponent : SALEH KHAN
---Art. 185---Appeal to Supreme Court---Concurrent findings of fact of Courts
below---Interference with such findings by Supreme Court---Scope---When such
findings were reasonable and not arrived at in disregard of any provision of law
or any accepted principle concerning appreciation of evidence , then Supreme
Court would, normally, not interfere with same even though different view
might also be possible---Supreme Court in such case would give due weight and
consideration to opinion of Courts below.

Side Appellant : MUHAMMAD SHARIF
Side Opponent : SETTLEMENT COMMISSIONER
--Art. 185(3)---Petition for leave to appeal in a civil matter---Misreading and non-
reading of record---Onus to prove---Supreme Court does not normally go behind
the findings of fact recorded by High Court, unless it can be shown that such
findings are against the evidence or so patently improbable, or perverse thereto
accept them, would amount to perpetuating a grave miscarriage of justice or if
there has been any misapplication of any principle relating to appreciation of
evidence or finally, if the finding could be demonstrated to be physically
impossible---Such being the practice and rule of Supreme Court in civil petition,
the burden lies rather heavily on the petitioner to show that the findings
recorded by High Court are not sustainable on record and should be interfered
with by Supreme Court---Such would be notwithstanding that a different view
might also be possible.

Side Opponent : MUHAMMAD ANWAR
---Art. 185(3)---Petition for leave to appeal---Findings of fact---Misreading and
non-reading of evidence ---Onus to prove---Supreme Court does not normally
meddle in finding of fact recorded by High Court, unless it can be shown that
the finding is apparently against evidence or so patently improbable or perverse
that to accept it, would amount to perpetuating a grave miscarriage of justice or
if there has been any misapplication of any principle relating to appreciation of
evidence or finally, if finding could be demonstrated to be physically
impossible---Such being the practice and rule of Supreme Court in civil petition,
the burden lies heavily on petitioner to show that the findings recorded by High
Court are not sustainable on record and should be interfered with by Supreme
Court---Such would be notwithstanding that a different view might also be
possible---Constitutional jurisdiction is discretionary in character.

Side Appellant : WAQAR NAZIR and others
----Art. 203-F(2B)---Petition for leave to appeal---Concurrent findings of fact by
the courts below---Interference--- Principles---Supreme Court, as ultimate Court
in the country, as a rule to give due weight and consideration to the opinion of
courts below and in particular to the opinion of Court of first instance, which
had the advantage of hearing the . parties, witnesses and watching their
demeanour---Normally, Supreme Court does not interfere with findings of fact
reached at by primary courts or Federal Shariat Court, when it is satisfied that
findings of courts below are on the whole reasonable and are not arrived at by
disregarding any provision of law or any accepted principle concerning
appreciation of evidence .

Side Appellant : MUHAMMAD ZAFARULLAH through L.Rs. and others
Side Opponent : MUHAMMAD ARIF through L. Rs.
---Art. 185(3)---Jurisdiction of Supreme Court under Art.185(3) of the
Constitution, discretionary in character---Scope---Concurrent findings of fact by
the Courts below---Miscarriage of justice---Onus to prove---Supreme Court does
not normally go behind concurrent findings of fact by the Courts below unless it
can be shown that such findings are against the evidence or so patently
improvable or perverse that to accept them it would amount to perpetuating
grave miscarriage of justice or if there had been any misapplication of principle
relating to appreciation of evidence or finally if findings could be demonstrated
to be physically impossible---Such being the practice and rule of Supreme Court
in civil matters, the burden lies rather heavily on petitioners to show that
concurrent findings recorded by High Court are not sustainable on the record
and should be interfered with by Supreme Court---Constitutional jurisdiction is
discretionary in character.

Side Appellant : OVERSEAS PAKISTANIS FOUNDATION and others
Side Opponent : Sqn. Ldr. (Retd.) Syed MUKHTAR ALI SHAH
----O. I, R. 10 & O. XLI, R. 33---Damages---Misjoinder of necessary parties---
Appellate jurisdiction of High Court---Scope---Plaintiff filed suit for damages on
the ground that while on of ficial duty, he met an accident in which he became
handicapped due to which he lost his service---Suit was dismissed by Trial Court
for not impleading necessary parties but High Court in exercise of appellate
jurisdiction, decreed the suit in favour of plaintiff---Validity---Defendants
themselves had not provided facility of driver and sent him on of ficial duty
where he met with an accident---Later on defendants terminated services of
plaintiff on account of his health, therefore, High Court was justified to reverse
the judgment of Trial Court---High Court in its capacity as appellate Court
possessed jurisdiction to come to its own conclusion on the basis of evidence
adduced before Trial Court by parties and resultantly could competently reverse
the finding of Trial Court on the questions of fact involved in issues---High
Court, after proper appreciation of evidence reversed finding of Trial Court
with cogent reasons and was justified that suit filed by plaintiff was not time-
barred---High Court was also justified that suit was not liable to be dismissed on
the ground that plaintiff had not impleaded all necessary parties as defendants in
his suit---Defendants were liable to pay damages to plaintiff, as competent
authority had sent him on of ficial duty without providing facility of driver---
Appeal was dismissed.

Side Appellant : SHERAZ TUFAIL
---Ss. 302(b)/34/201/377---of fence of Zina (Enforcement of Hudood) Ordinance
(VII of 1979); S.12---Constitution of Pakistan (1973), Art.203-F(2-B)---Reappraisal
of evidence ---Extra-judicial confession---Accused was convicted after trial and
sentenced to imprisonment for life, which was maintained by Federal Shariat
Court---Plea raised by accused was that both the courts had wrongly convicted
him on the basis of circumstantial evidence produced by prosecution in shape of
extra-judicial confession---Validity---Both the courts below had given finding
that accused had made confessional statement voluntarily before his own nearest
relative who appeared as prosecution witness---Confession of accused was also
corroborated with other pieces of evidence recovered during. investigation---
Conviction could be awarded on the basis of circumstantial evidence alone---
Both the courts below had convicted and sentenced the accused after proper
appreciation of evidence on record---Concurrent conclusions arrived at by
courts below could not be interfered by Supreme Court in exercise of jurisdiction
under Art.203-F(2-B) of the Constitution---Supreme Court declined to interfere
with the conviction and sentence awarded by both the courts below---Leave to
appeal was refused.

Side Appellant : AKBAR ALI
--S. 10(3)---appreciation of evidence ---Benefit of doubt---Last seen evidence of
court witness being real paternal aunt of deceased---Statement of court-witness
was recorded under S.161, Cr.P.C. after four months of lodging of F.I.R. and her
name was not mentioned hi Challan as witness---Court witness after incident did
not inform mother of deceased (complainant) or other relatives that she had seen
deceased baby in lap pf accused---Statement or court-witness did not inspire
confidence in view of contradictions therein by not mentioning date, time and
place---Such last seen evidence as first link would not connect accused with
commission of charged of fence---Last seen evidence being a circumstantial
evidence was a weak type of evidence ---Duty of prosecution was to prove case
against accused beyond any shadow of doubt, even if accused. had failed to
furnish explanation for disappearance of deceased having been seen along with
him before death, particularly when court-witness did not disclose such fact for
four months after incident---No reliable evidence was available on record to
connect accused with commission of of fence---Accused was entitled to benefit of
doubt---Conviction of accused was set aside and he was acquitted of charged of
fence in circumstances.

Side Appellant : EHSAN AKBAR
---Ss. 497(2) & 497(5)---Penal Code (XLV of 1860), S.302---Bail, cancellation of
---Case of further inquiry---Deeper appreciation of evidence ---Failure to recover
weapon of of fence---Accused allegedly used Klashanikov rifle during the
occurrence---High Court granted bail to accused on the ground that the rifle was
not recovered from him during investigation---Validity---Ground which weighed
with High Court for grant of bail was not at all a valid ground---Case of accused
was not of further inquiry as contemplated under S.497 (2) Cr.P.C.---Grant of bail
to accused had prejudiced the case of complainant as it amounted to deeper
appreciation of evidence ---While granting bail, only tentative assessment of
evidence was to be made, whereas deeper appreciation of evidence was to be
avoided---Supreme Court converted petition for leave to appeal into appeal and
set aside the order passed by High Court, resultantly bail granted to accused was
recalled---Appeal was allowed.

Side Appellant : MUSHTAQ AHMED and another
---Art. 203-F(3)---Jurisdiction of Supreme Court under Art.203-F(3), Constitution
of Pakistan---Scope---Concurrent findings of guilt recorded by the Courts
below---Normally, Supreme Court does not interfere with findings of fact
arrived at by the primary Courts or Federal Shariat Court, when it is satisfied
that findings of the Courts below were on the whole reasonable and were not
arrived at by disregarding any provision of law or any accepted principle
concerning appreciation of evidence ---Such would be notwithstanding that a
different view may also be possible.

Side Appellant : MUSHTAQ AHMED and another
---S. 10(3)---Penal Code (XLV of 1860), S.377---Constitution of Pakistan (1973),
Art.203-F (3)---Re-appraisal of evidence ---Medical and ocular account---Opinion
of Trial Court---Scope---Both the accused and six others were charged with
abduction of minor girl aged about 11/12 years and her minor brother aged
about 12/13 years---Accused were also charged with the of fence of committing
Zina-bil-Jabr and sodomy with both the victims---Trial Court convicted both the
accused and sentenced them to twelve years of imprisonment, while remaining
six co-accused were acquitted---Conviction and sentence awarded by Trial Court
was maintained by Federal Shariat Court---Plea raised by both the accused was
that they were convicted on the solitary statements of victims---Validity---
Statement of victim was duly corroborated by the statement of doctor who had
categorically stated that hymen was absent and she was pregnant---Such
statement was also corroborated by ultra sound report according to which she
was pregnant of about 18 weeks---Trial Court was justified to disbelieve defence
version and same was upheld by Federal Shariat Court---Held, any sane person
would not like to put at stake his or her family honour as well as career of young
un-married daughter for petty disputes as alleged by accused---Both the Courts
below, after proper appreciation of evidence , had concurrently convicted both
the accused with cogent reasons, keeping in view all the principles of safe
administration of justice---Supreme Court as a rule, gave due weight and
consideration to the opinion of Courts below and particularly to the opinion of
Trial Court, which had the advantage of hearing the parties, witnesses and
watching their demeanour and declined to interfere with the conviction and
sentence awarded to the accused by the Courts below---Leave to appeal was
refused.
Side Appellant : MUHAMMAD ZUBAIR
---Arts. 203-F(2-B) & 185(3)---Constitutional jurisdiction of Supreme Court---
Concurrent findings of fact by the Courts below---Interference by Supreme
Court---Principles---Normally, Supreme Court does not interfere with findings of
fact arrived at by the Courts below, while exercising constitutional jurisdiction
after its satisfaction that findings of the Courts below are on the whole
reasonable and are not arrived at by disregarding any provision of law or any
accepted principle concerning appreciation of evidence ---If finding is on the
face of it against evidence or so patently improbable, or perverse that to accept it
could amount to perpetuating a grave miscarriage of justice, or if there has been
any misapplication of principle relating to appreciation of evidence , or finally,
if finding could be demonstrated to be physically impossible, then it is the duty
and obligation of Supreme Court to interfere in concurrent conclusions arrived at
by the Courts below.

Side Appellant : FAROOQ MENGAL
Side Opponent : THE STATE through A.-G. Sindh, Karachi
----S. 497---Constitution of Pakistan (1973), Art.185(3)---Bail, refusal of
---Retracted judicial confession of co-accused---Delay in conclusion of trial
caused by accused---appreciation of evidence at bail stage---Scope---Allegation
against accused/petitioner was that he got his wife murdered by co-accused---
Co-accused recorded his judicial confession before Magistrate to the effect that he
had committed murder of deceased at the instance of accused/petitioner who
suspected illicit relations of his wife with her ex-husband---Trial Court as well as
High Court dismissed bail petition filed by accused---Accused contended that
occurrence was unseen and except retracted judicial confession of co-accused,
there was no direct or circumstantial evidence to connect accused with crime;
that it was yet to be determined whether occurrence was homicidal death or not;
that questions relating to true character of confession of co-accused whether
inculpatory or exculpatory, and its admissibility against its maker were yet to be
ascertained in the context of their evidentiary value and that case against
accused squarely fell within the ambit of subsection (2) of S.497, Cr.P.C. hence he
was entitled to concession of bail---Validity---Questions as to retracted judicial or
extra-judicial confession whether inculpatory or exculpatory, truthfulness or
otherwise of judicial confession, absence of evidence against accused, possibility
or impossibility of ultimate conviction of accused on the basis of such
inadmissible evidence , was not to be appreciated at bail stage---Question
relating to intrinsic value of retracted judicial confession as to appraisal of
evidence was not to be addressed at bail stage---Retracted judicial. confession, if
found truthful and confidence inspiring, could be relied upon on the basis of
tentative assessment of prosecution evidence and it was not possible to doubt
credibility of judicial statement at bail stage---No sufficient grounds existed to
believe that accused was not involved in crime or that case against him was of
further inquiry---Delay in conclusion of trial was caused by accused, therefore,
he was to face consequence of delay---Bail petition was dismissed.

Side Appellant : Makhdoom JAVED HASHMI
----Ss. 124-A, 131/109, 505(a), 500, 468, 469 & 471---Criminal Procedure Code (V
of 1898), 5.426---Constitution of Pakistan (1973), Art. 185 (3)---Suspension of
sentence---Deeper appreciation of evidence ---Considerable portion of sentence
undergone--Trial Court convicted and variously sentenced the accused, the
longest term being of 7 years---Plea raised- by accused was that he had
undergone a considerable portion of sentence of 7 years awarded to him and
almost had completed full term of remaining sentences---Validity---Sentence
could not be suspended under S.426 Cr.P.C. unless it was shown that it was
based on no evidence and there was no ultimate possibility of conviction of a
person to sustain---Order of High Court was not suffering from any infirmity as
High Court having taken into consideration all aspects of the matter in the light
of material available on record and on the basis of tentative assessment of
evidence , had held that no case for suspension of sentence was made out---
Supreme Court under Art.185(3) of the Constitution, was not obliged to interfere
with such order of High Court declining to suspend the sentence of a person
under S.426, Cr.P.C.---Most of the questions raised by parties could not be
answered without deep appreciation of evidence and such exercise was
unwarranted for the purpose of suspension of sentence and grant of bail after
conviction---Plea raised by accused could not be considered to be a ground to
suspend the sentence of accused---High Court committed no illegality in
declining bail to accused by suspending his sentence and Supreme Court
declined to undertake the exercise of deeper appreciation of evidence for
suspension of sentence---Order passed by High Court being free from any legal
infirmity or perversity, admitted no interference---Leave to appeal was refused.

Side Appellant : FALAK SHER
---S. 302(a)(c)/34---Constitution of Pakistan (1973), Art.185(3)---Reappraisal of
evidence ---Supreme Court, in the interest of justice and fairplay, re-examined
evidence on record, but did not find any infirmity or illegality in the concurrent
findings of guilt recorded by the Courts below against petitioners---High Court
was justified to reduce sentence of one of the petitioners in view of the fact that
he was attributed an injury on buttocks of one of the deceased and was not
attributed any specific role regarding other deceased---Findings of the High
Court were reasonable and not in disregard of any accepted principle of
appreciation of evidence ---In absence of any infirmity or illegality in impugned
judgments of the Courts below, Supreme Court, declined interference in findings
of Courts below in exercise of its power under Art.185(3) of the Constitution---
Petitions were dismissed and leave was refused.

Side Appellant : NAIK MUHAMMAD
Side Opponent : MAZHAR ALI
---R. 17---Constitution of Pakistan (1973), Arts.4 & 199---Lambardar, appointment
of ---Constitutional jurisdiction of High Court under Art.199 of the Constitution
in matters falling in jurisdiction of Provincial Board of Revenue---Scope---
Petitioner was appointed as Lambardar by District of ficer (R) on
recommendations of concerned authority---Respondent filed appeal against
appointment of petitioner before Executive District of ficer (R) which was
accepted and respondent was appointed as Lambardar---Petitioner filed revision
petition before Member, Board of Revenue, who accepted the same---Respondent
filed constitutional petition against finding of Member, Board of Revenue, which
was 'accepted by High Court---Petitioner contended that High Court had erred
in law to set aside the order of Member Board of Revenue who had the authority
under law to decide the matter rightly or wrongly and mere fact that decision
was incorrect did not render the decision of Board of Revenue as without lawful
authority---Validity---High Court had jurisdiction to take cognizance of the
matter decided in discretion exercised by Member Board of Revenue---
Contention of the petitioner that Member Board of Revenue had a right to decide
a case rightly or wrongly had no force in view of Art.4 of the Constitution---Any
error on the part of Board of Revenue in understanding the law, in applying it or
in laying down the law was to be corrected in constitutional jurisdiction by High
Court---Member, Board of Revenue had misread the record and reversed the
findings of lower Appellate Court without any justification; therefore High
Court was justified not to remand the case to Member Board of Revenue---High
Court had given finding of fact after proper appreciation of evidence and
accepted order of Executive District of ficer (R) with cogent reasons---Supreme
Court declined interference with the finding of fact recorded by High Court
while exercising power under Art.185(3) of the Constitution---Leave was refused.

Side Appellant : RASOOL BUKHSH and another
Side Opponent : MUHAMMAD RAMZAN
---S. 42---Contract Act (IX of 1872), S.202---Constitution of Pakistan (1973),
Art.185(3)---Irrevocable power of attorney---Sham transaction---Concurrent
findings of fact recorded by the Courts below---Plaintiff assailed validity of
registered sale-deed executed by his brother in favour of defendant---Suit
property was owned by plaintiff, for which earlier he executed power of attorney
in favour of his brother, which had been revoked but his brother executed sale-
deed on the basis of already revoked power of attorney---Suit was decreed by
Trial Court in favour of plaintiff---Judgment and decree passed by Trial Court
was maintained by Lower Appellate Court as well as by High Court---Plea raised
by defendant was that the power of attorney in favour of brother of plaintiff was
irrevocable under S.202 of Contract Act, 1872---Validity---As the plaintiff had
already cancelled the power of attorney before execution of sale-deed in
question, such type of transactions were called sham transactions---Power of
attorney did not contain. any clause that the same had been executed for
consideration, therefore, contention of defendant that power of attorney could
not be revoked by the principal had no force in view of S.202 of Contract Act,
1872---High Court had held that such type of sales were not genuine---All the
Courts below had given concurrent findings against the defendant after proper
appreciation of evidence ---Supreme Court declined to interfere in the
concurrent conclusions arrived at by the Courts below while exercising power
under Art. 185 (3) of the Constitution---Defendant failed to point out any
infirmity or illegality in the judgment passed by High Court---Leave to appeal
was refused.

Side Opponent : ADDITIONAL DISTRICT JUDGE
----Arts. 185(3) & 199---Constitutional jurisdiction---Scope---Under Art.185(3) of
Constitution, Supreme Court was not to interfere with concurrent findings of fact
recorded against defendant after proper appreciation of evidence
---Constitutional jurisdiction was always discretionary in character and he who
sought equity was to come with clean hands.

Side Opponent : ADDITIONAL DISTRICT JUDGE
--Ss. 7 & 17---Constitution of Pakistan (1973), Arts.199 & 185(3)---Suit for
recovery of maintenance for last three years---Obligation of husband to maintain
his wife---Concurrent findings of fact by Courts below---Effect---Exercise of
power by Supreme Court under Art.185(3) of the Constitution---Scope---
Plaintiff/respondent filed suit against defendant/petitioner for recovery of
maintenance allowance for last three years---Family Court declared that plaintiff
was entitled to past maintenance for three months and also for Iddat period---
Lower Appellate Court, while accepting appeal thereagainst, found that plaintiff
was entitled to recovery of maintenance for last three years and also for Iddat
period---High Court upheld the finding of lower Appellate Court---
Defendant/petitioner contended that, grant of past maintenance allowance to
plaintiff was not in consonance with Injunctions of Islam and that plaintiff did
not disclose any cause of action in her plaint---Validity---Muslim husband was
under legal obligation to maintain his wife and if she was forced to live away
from her husband for no fault on her part even then husband was to provide
maintenance to his wife---Courts below did not err in law to grant past
maintenance to plaintiff for last three years---Under Ss.7 & 17 of West Pakistan
Family Courts Act, 1964, it was not necessary that plaintiff should mention her
cause of action in the contents of plaint---Title and contents of plaint clearly
showed cause of action which as a document were to be read as a whole---First
Appellate Court had all powers of Trial Court and first Appellate Court was
justified to re-examine/re-appreciate the evidence on record---First Appellate
Court had reversed the finding of fact with cogent reasons and High Court was
justified not to disturb the finding of fact while exercising constitutional
jurisdiction--Under Art.185(3) of Constitution, Supreme Court was not to
interfere with concurrent findings of fact recorded against defendant after
proper appreciation of evidence ---Constitutional jurisdiction was always
discretionary in character and he who sought equity was to come with clean
hands---Petition for leave to appeal was dismissed, keeping in view the conduct
of defendant.
Citation Name : 2007 PLD 26 SUPREME-COURT

Side Appellant : MUHAMMAD TUFAIL and 2 others
Side Opponent : GHAUS MUHAMMAD through Legal Representatives
--S. 15---Civil Procedure Code (V of 1908), Ss.100 & 101---Constitution of
Pakistan (1973), Art.185(3)---Pre-emption suit---Waiver of right of pre-emption---
Overt and positive acts necessary for participation in sale transaction---Power of
High Court to appreciate evidence in second appeal---Defendants/appellants
purchased land vide mutations attested in their favour on 24-1-1973---
Plaintiffs/respondents filed two separate suits for pre-emption on ground of
being co-sharers as well as owners in the estate which right allegedly did not vest
in vendees/defendants---Trial Court decreed both suits on ground of superior
right of pre-emption---Lower Appellate Court, while accepting appeals, non-
suited pre-emptors on ground that one of the plaintiffs/preemptors had waived
his superior right during proceeding of transaction between vendor and
vendees/defendants---High Court set aside finding of lower Appellate Court
and restored that of Trial Court by holding that point of waiver raised by
vendees against one of the pre-emptors was not proved through evidence
---Defendants/appellants contended that question of waiver was a question of
fact which was determined against one of the plaintiffs/pre-emptors by lower
Appellate Court as being the last Court of facts, hence High Court while
exercising jurisdiction under Ss.100 & 101 of C.P.C. was not to have interfered
with appreciation of evidence conducted by lower Appellate Court; and High
Court was to have confined itself to question of law as prescribed by S.100,
C.P.C. and should have avoided deeper appreciation of evidence ---Validity---
Finding of lower Appellate Court was to be immune from interference in second
appeal only if it was found to be substantiated by evidence on record and was
supported by logical reasons---Witnesses of vendees with regard to assertion of
waiver by one of the plaintiffs/pre-emptors did not go beyond bald allegation
through repeated single sentence "that bargains were struck through plaintiffs or
one of the plaintiffs"---Such solitary sentence was not at all to be considered
sufficient to hold that someone had participated in a transaction in such a
manner that it gave strong indication of relinquishment of right of pre-
emption---Some positive and overt act, by pre-emptor towards completion of
sale transaction was to be brought on record in material particulars---
Participation in transaction consisted of numerous positive acts; like playing an
intermediary role between vendor and vendee; like contacting vendor to
persuade him to sell land; like negotiating between parties regarding amount of
transaction etc; but not a single incident of such nature was brought on record by
defendants/vendees---Lower Appellate Court was not competent to hold bald
allegations as sufficient evidence towards the act of waiver---Statement of
Patwari Halqa was considered as another piece of evidence qua waiver but
when he was confronted with Roznamcha (daily diary) he admitted that he had
not entered the name of anyone in Roznamcha excepting the Lamberdar---
evidence of Patwari regarding waiver of right by plaintiff/pre-emptor was,
therefore, not worth credence---Even if it was proved that any of pre-
emptors/plaintiffs was present at the time of transaction, it did not by itself
constitute waiver---Mere presence of somebody during transaction did not at all
mean positive participation in sale transaction and positive relinquishment of
right of pre-emption---Even if one of pre-emptors was found connected with act
of waiver then he was most likely to lose his individual right and was not to
damage right of other pre-emptors who were to succeed in Pre-empting entire
suit-land to the exclusion of pre-emptor who waived his right---High Court was
justified in appreciating evidence in second appeal in order to determine as to
which of two decisions of the Courts below were in accordance with evidence on
record and it rightly interfered with judgment of lower Appellate Court---
Appeal was dismissed by Supreme Court.

Side Appellant : Dr. JAVAID AKHTAR
----S. 17---Penal Code (XLV of 1860), S.392---Qanun-e-Shahadat (10 of 1984), Art.
22--Constitution of Pakistan (1973), Arts. 185(3) & 203-F(2-B)---Constitutional
jurisdiction of Supreme Court---Scope---Reappraisal of evidence ---Identification
parade---Administration of justice---Accused was convicted and sentenced to 8
years of imprisonment under S.392, P.P.C., which was maintained by Federal.
Shariat Court---Instead of seeking leave under Art.203-F(2-B) of the Constitution,
accused filed petition under Art. 185(3) of the Constitution---Contention of
accused was that complainant did not identify him during identification
parade---Validity---Identification parade was not a legal requirement---If eye-
witnesses could identify the accused before Trial Court that was enough for
conviction---Identification parade was immaterial if identification of accused was
proved by other convincing evidence ---Complainant and injured witnesses had
no enmity with accused to involve him in a criminal case---Complainant being an
educated lady did not exonerate real culprits and had not nominated innocent
person just at the behest of police---Both the Courts below had reached
concurrent conclusion after proper appreciation of evidence on record regarding
the guilt of accused--Accused filed petition under Art. 185(3) of the Constitution,

Side Appellant : NOOR MUHAMMAD
---Ss. 200, 202, 203, 204 & 439---Penal Code (XLV of 1860), Ss.302/109---Private
complaint---Issuance of process to accused---Revisional jurisdiction of High
Court----Scope---On tentative assessment of the material placed before Trial
Court, process was issued against accused persons---Such order of Trial Court
was assailed before High Court---After detailed scrutiny of evidence , High
Court in exercise of revisional jurisdiction, set aside the order passed by Trial
Court---Plea raised by complainant was that High Court in exercise of revisional
jurisdiction, could not enter into detailed scrutiny of evidence ---Validity---High
Court for arriving at conclusion had taken note of detailed reasoning advanced
by parties touching merits of the case on the basis of appreciation of material on
record very minutely---Such evidence was construed by High Court as evidence
duly recorded in a trial of a case and also the reasoning advanced by Court itself
for reaching such a conclusion by discussing the material in depth conveying an
impression as deciding a case which was at its final stages determining guilt or
innocence of accused on the criteria of evaluating evidence as to whether
prosecution was able to prove its case beyond reasonable doubt or not and while
giving such a benefit accused ought to be acquitted---Such an evaluation of
evidence was beyond the scope of proceedings at the stage of issuance of
process after making a complaint visualizing under Ss.200, 202, 203 and 204,
Cr.P.C.---High Court, instead of correcting any illegality or irregularity
committed by the Courts below, while exercising revisional jurisdiction had
rather committed illegality itself by going beyond the scope of proceedings---
Such stage was that of only summoning of accused and interference in the order
of Trial Court while issuing process against accused was tantamount to stifling
of proceedings/trial of the case, depriving the Court to adjudge the evidence to
be produced by complainant and the right of accused to cross-examine the
witnesses and to explain any incriminating evidence against him and enable the
Court to arrive at a conclusion determining truth of the matter---Order of Trial
Court, interfered with by High Court, was neither perverse nor arbitrary nor
suffered from any illegality or irregularity but was quite in consonance with law
and the principles laid down by Supreme Court---High Court had wrongly
interfered with the order of Trial Court and the same was not maintainable and
required reversal---Supreme Court converted petition for leave to appeal into
appeal, set aside the order passed by High Court and remanded the case to Trial
Court for proceeding afresh in accordance with law---Appeal was allowed.
Citation Name : 2007 PCRLJ 41 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant : MUHAMMAD RIAZ
---Ss. 9(a)(iii)(iv), 10, 18(g) & 24(b)---Criminal Procedure Code (V of 1898),
S.173---appreciation of evidence ---Sentence, reduction in--Column No.2 of
challan---Object---Person placed in Column No.2---Effect---Allegation against
accused/appellant, a bank employee, was that account-holders used to hand
over their cheques and cash to accused for the purpose of depositing the same in
their respective accounts but accused, instead of depositing cheques/cash in
respective accounts embezzled the same---National Accountability Court/Trial
Court convicted accused to suffer imprisonment for five years and to pay fine---
Accused contended that Trial Court failed to appreciate the fact that Branch
Manager of the Bank was involved in commission of of fence but his name was
placed in Column No.2 of challan though sufficient evidence was available on
record against him and this act had caused great injustice and prejudice to
accused; that investigation was not carried out honestly and real culprits who
were found guilty in Bank inquiry and consequently dismissed from service,
were let of f without any reason; that affected account-holders had no valid
deposit receipt slips of misappropriated amount---Validity---Report of hand-
writing expert confirmed that most of cheques deposited by account-holders,
which were encashed, bore signatures of accused---Bank Manager had been
placed in Column No.2 of challan, but it was not ascertainable as to why he was
placed in Column No.2 when it had been specifically stated in challan that both
Bank Manager and the accused had embezzled the amount---Under law only
those accused were to be placed in Column No.2 against whom no sufficient
evidence had come on record and it was left to Court to see whether he was to be
summoned for trial or not---evidence on record showed that Bank Manager was
prima facie involved in commission of of fence---Audit report showed that
instead of cashier, Bank Manager used to receive cash on his table---Trial Court
observed that Bank Manager was main culprit who allegedly used to sign
counterfoils of pay-in-slips and hand-over to customers, duly affixing bank
round stamp by him, sending cash to cashier with fresh pay-in-slip for credit of
amount other than actual depositor's account---Prosecution submitted reference
only against accused which meant that he was made victim of selective
prosecution---Accused being heart patient, it was appropriate to reduce sentence
of imprisonment from five years to that of 2-1/2 years---Amount of fine was to
remain the same---Appeal dismissed on merits.
Citation Name : 2007 PLD 12 QUETTA-HIGH-COURT-BALOCHISTAN

Side Appellant : State
Side Opponent : ASMATULLAH
--Ss. 302(b) & 364-A/34---Anti-Terrorism Act (XXV of 1997), Ss.7(A), 21-I---of
fence of Zina (Enforcement of Hudood) Ordinance (VII of 1979), S.10---
appreciation of evidence ---Father and mother of deceased girl had submitted
compromise supported by their affidavit that they had compromised with
accused---Prosecution mainly had relied upon confessional statement of accused
recorded by Judicial Magistrate---Alleged confessional statement which had been
made before the police, had no evidentiary value because any confession made
by accused before the police, was not admissible in evidence ---No new fact or
circumstance having been discovered on the disclosure and pointation of
accused, confession made by accused before the police or pointation of places
which were already in the knowledge of police, could not be used as evidence
against him---Even otherwise accused who allegedly made confessional
statement being in custody of police, possibility could not be ruled out that
confessional statement was tutored one and result of torture as claimed by
accused---Judicial Magistrate also did not satisfy 'himself as to whether
confessional statement was voluntary or a result of torture---Prosecution witness
who identified bag in question of accused was brother of complainant and
according to him on one occasion said bag was handed over to him by accused
for repair--Said story was neither plausible nor natural and appeared to have
been concocted in order to connect accused with commission of of fence---Even
at the best same could be used as corroboratory piece of evidence and no
conviction could independently be based on such evidence ---Motive relied upon
by prosecution, would not alone be sufficient to sustain conviction being double
edged---Judgment rendered by Special Judge Anti-Terrorism Court, was set
aside and accused was acquitted of the charge---Murder reference was answered
in negative.

Side Appellant : BABA CHARIA
---Ss. 302(b) & 302(c)---appreciation of evidence ---According to confessional
statements of accused, deceased during dark hours of the night entered into the
tent where young daughter of accused was sleeping and deceased attempted to
outrage her modesty, whereupon; she raised hue and cry which attracted
accused; who under sudden provocation committed his murder---Fact that no
weapon of of fence was used in the commission of of fence and he was
murdered by strangulation also supported such conclusion---Accused under
circumstances at the best, had committed of fence under S.302(c), P.P.C. and
sentences awarded to accused, was liable to be reduced---Conviction of accused
was altered from S.302(b), P.P.C. to that of S.302(c), P.P.C. and they were
sentenced to seven years' R.I.---Benefit of S.382-B, Cr.P.C. was also extended to
accused.
Side Appellant : Haji ARIF
----Ss. 302(b), 324 & 34---Anti-Terrorism Act (XXVII of 1997), S.6(2)(a)(b)---
appreciation of evidence ---Benefit of doubt---Both prosecution witnesses had
stated that accused attacked with dandas and thereafter absconding accused
started firing---Statement of both said prosecution witnesses to the extent of
dandas, was not supported by medical evidence ---None of the deceased and
injured had received any injury with. blunt or sharp weapon---Both witnesses
had not given details of injuries caused with blunt or sharp weapon and had not
attributed any specific role or injury to any accused---Vague and general
allegations had been alleged against accused and both witnesses had
contradicted each other---Statements of both prosecution witnesses, were
negated by medical evidence to the extent of accused---F.I.R. was lodged after a
delay of 4/5 hours and possibility could not be ruled out that F.I.R. was lodged
after due deliberation, which had created doubt on the prosecution case---Deep
rooted enmity existed between the parties and complainant had motive to falsely
implicate accused in the case by spreading the net wider by involving all the
male members of accused side---Place where incident took place, was a
thoroughfare and soon after the incident many people gathered over there, but
despite that no independent witness was examined in the case and no reason had
been .given for not producing independent witness---Both prosecution witnesses
being inimical towards accused due to old enmity, their evidence could not be
relied upon qua accused without any strong corroborative evidence ---Presence
of accused at the place of incident was highly doubtful---Case as set up by
prosecution was highly improbable and did not appeal to prudent mind---Eye-
witnesses account was unreasonable and improbable qua the case of accused and
it could be safely held that due to previous enmity false implication of accused,
could not be ruled out---Prosecution, in circumstances having failed to prove
case against accused they were acquitted of the charge by giving them benefit of
doubt and were released---Prosecution, however, having proved its case against
absconding co-accused beyond any shadow of doubt, judgment passed against
them by Special Court, was uphold and murder reference to their extent, was
answered in affirmative.
Citation Name : 2007 PLD 31 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : IBRAHIM
---Ss. 302 & 324---appreciation of evidence ---If evidence of one prosecution
witness who was brother of injured prosecution witness, and of the other who
was brother of deceased, was excluded from consideration, even then there was
other sufficient evidence on record in the shape of oral evidence of other two
witnesses and the F.I.R.---Name of one of said witnesses though was not
mentioned in the F.I.R., but he was co-villager of the parties and appeared to be
an impartial witness and his evidence inspired confidence---Such witness had
given a consistent and confidence-inspiring evidence ---F.I.R. was lodged by
deceased, who at relevant time was in full senses---Deceased having received
grievous injury, he was under eminent apprehension of death and, could not be
expected to tell a lie F.I.R. lodged by him could be safely considered as dying-
declaration and by taking into consideration the ocular version furnished by
prosecution witnesses coupled with dying-declaration, no doubt was left that
accused had committed the of fences---Contradiction pointed out by accused,
was not only a minor one, but was also plausible---Death of deceased was the
indirect result of the injury caused to him by accused with fire-arm and accused
could be convicted for Qatle-Amd---Accused had committed murder of deceased
against whom there was a clear motive of criminal litigation.

Side Appellant : IBRAHIM
---Ss. 302 & 324---appreciation of evidence ---If evidence of one prosecution
witness who was brother of injured prosecution witness, and of the other who
was brother of deceased, was excluded from consideration, even then there was
other sufficient evidence on record in the shape of oral evidence of other two
witnesses and the F.I.R.---Name of one of said witnesses though was not
mentioned in the F.I.R., but he was co-villager of the parties and appeared to be
an impartial witness and his evidence inspired confidence---Such witness had
given a consistent and confidence-inspiring evidence ---F.I.R. was lodged by
deceased, who at relevant time was in full senses---Deceased having received
grievous injury, he was under eminent apprehension of death and, could not be
expected to tell a lie F.I.R. lodged by him could be safely considered as dying-
declaration and by taking into consideration the ocular version furnished by
prosecution witnesses coupled with dying-declaration, no doubt was left that
accused had committed the of fences---Contradiction pointed out by accused,
was not only a minor one, but was also plausible---Death of deceased was the
indirect result of the injury caused to him by accused with fire-arm and accused
could be convicted for Qatle-Amd---Accused had committed murder of deceased
against whom there was a clear motive of criminal litigation.
Citation Name : 2007 YLR 904 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : SABIR KHAN
----Ss. 9, 20 & 25---Criminal Procedure Code (V of 1898), S.103---appreciation of
evidence ---Provisions of S.103, Cr. P. C. had been excluded under the provisions
of S.25 of Control of Narcotic Substances Act, 1997---Provisions of S.20 of the Act
were directory in nature---Non-compliance of said provisions of law, could not
be considered as a strong ground for holding that the trial of accused was bad in
the eye of law---Main aim and object of enacting S.103, Cr.P.C. was to ensure that
the search was fair which would exclude any possibility of concoction and
transgression which would never mean to disbelieve the statements of of ficial
witnesses in any other circumstances.

---S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4

& 5---appreciation of evidence ---Delay in receiving samples by Forensic Science
Laboratory---Accused had contended that samples separated from the seized
Charas were received by Forensic Science Laboratory after considerable delay,
whereas report prepared was sent about one and a half months after said receipt;
that in the process sufficient time had been consumed in view of Rules 4 & 5 of
Control of Narcotic Substances (Government Analysts) Rules, 2001 and that
samples dispatched for analysis beyond seventy two hours and the report
received after considerable delay, after seizure of narcotics was illegal and it
rendered the seizure invalid in the eye of law---Validity---Contentions were
without substance because Rules 4 & 5 of Control of Narcotic Substances
(Government Analysts) Rules, 2001, had placed no bar on the Investigating of
ficer to send the samples beyond seventy two hours of seizure, receive Forensic
Science Laboratory report after fifteen days and the report so received to place
before the Trial Court---Control of Narcotic Substances (Government Analysts)
Rules, 2001 which were directory and not mandatory, could not control the
substantive provisions of Control of Narcotic Substances Act, 1997 and these
were to be applied in such a manner that its operation would not frustrate the
purpose of the Act under which the Rules were framed---Failure to follow
Control of Narcotic Substances (Government Analysts) Rules, 2001 would not
render the search, seizure and arrest under Control of Narcotic Substances Act,
1997 an absolute nullity and non-est and make entire prosecution case doubtful,
except for the consequence provided in the Rules---Substantial compliance of
directory provision was sufficient and even- where there was no compliance at
all, the act was not invalidated by such non-compliance, if the act otherwise was
done in accordance with law---Delay otherwise in sending the incriminating
articles to the concerned quarter for expert' opinion, could not be treated fatal in
absence of objection regarding the same having been tampered with or
manipulated.

--Ss. 9 & 29---Penal Code (XLV of 1860), Ss.419, 420, 170 & 171---appreciation of
evidence -Both prosecution witnesses seemed to he independent witnesses
having no reason to falsely implicate accused in the case---No material
discrepancy was found at all in their deposition inter se regarding recovery of
Charas, Frontier Constabulary uniforms and false number plates---Prosecution
witnesses were consistent regarding, the time, place of occurrence, recovery of
Charas, other articles and the manner in which it had been effected---
Discrepancies pointed out by the accused, were inconsequential and of no
importance---Statement of marginal witness of recovery memo. was in line with
the evidence of Inspector and 'despite lengthy cross-examination of said
prosecution witnesses, neither defence could create any dent in their statements
nor anything else favourable to accused could be elicited from them--Prosecution
witnesses though were of ficials of police, but they had no reason or motive to
falsely implicate accused---Accused had not urged any rancour or animosity
against those witnesses with accused---Unanimity was found in the deposition
on the material aspects e f the recovery and no reason was to disbelieve the
witnesses---Taking of small quantity out of each packet for chemical
examination, was enough to prove that entire recovered material was
contraband--S.29 of Control of Narcotic Substances Act, 1997 had provided that
presumption was of possession of illicit articles, unless person prosecuted would
rebut such presumption--Prosecution had succeeded to prove its case to the hilt
and conclusions drawn and reasons given by the Trial Court had shown fair
evaluation of evidence ---In absence of any illegality or infirmity in the
impugned judgment of the Trial Court warranting interference of the High
Court, appeal against said judgment was dismissed.
Side Appellant : HAIDER ALI SHAH
----S. 9(c)---appreciation of evidence ---Sentence, reduction in---Where

prosecution wanted to prove that the entire quantity of substance recovered was
narcotics, it had to be specifically proved by taking samples from each slab so
that no doubt was left that the entire case property comprised of narcotics---In
the present case Investigating of ficer had admitted that he had not counted the
number of slabs recovered; that he had not taken samples from each slab, but
from different slabs; and, that he was not sure as from how many slabs, samples
were taken---Benefit to that extent would go to accused---Prosecution in view of
statement of star witness, had not proved that the entire quantity of narcotics
weighing 1180 Kgs., was, Charas, but only to the extent of one sample sent to
Chemical Examiner---Appeals were partially allowed, convictions of accused
were maintained, but sentence of imprisonment and amount of fine was
reduced.
Side Appellant : AFSAR ZAMAN
Side Opponent : AYUB KHAN
---Ss. 42 & 54---Civil Procedure Code (V of 1908), O.XX, R.5, O.XLI, R.31 &
S.115---Suit for declaration and permanent injunction---Contents of judgment of
appellate court---Decision on each .issue---Suit for declaration and permanent
injunction, was contested by seven defendants while remaining defendants
admitted claim of plaintiffs and filed "Iqbal Dawa" in favour of plaintiffs---Trial
Court dismissed suit against seven defendants and decreed suit against
remaining defendants---Appeal against said judgment was dismissed by
Appellate Court---Validity---Concurrent findings of facts recorded by the courts
below were based on correct appreciation of evidence , which could not be
interfered with by the High Court in its revisional jurisdiction, especially when
plaintiffs could not point out any misreading and non-reading of evidence on
record by the courts below---Contention of counsel for plaintiffs that impugned
judgment of Appellate Court was in violation of mandatory provisions of O.XLI,
R.31, C.P.C., was repelled as Appellate Court was alive to the situation and issue
involved had been dealt with and decided in a careful manner---Appellate Court
had given its findings on all points of controversy and no prejudice. seemed to
have been caused to the plaintiffs---Giving issue-wise findings by the Appellate
Court was not the requirement of law as under O.XLI, R.31, C.P.C., Appellate
Court was to state the points for determination, give its decision thereon and
mention reasons for the decision.
Side Appellant : HAZAR GUL
---S. 9(c)---appreciation of evidence ---Samples certificate and destruction

certificate, were issued by Civil Judge/Judicial Magistrate Ist Class, whereas
competent Court to put accused to trial was ,the Court of Judge, Special Court
(C.N.S.) and not the Court of Civil Judge/Judicial Magistrate Ist Class---Said two
certificates, in circumstances were issued without lawful authority, and thus
were of no legal effect---Before destruction of case property, issuance of notice to
accused and their counsel was mandatory, non-compliance of which would
vitiate entire proceedings against accused---No such notice was issued to the
party/ counsel---Conviction and sentence of accused being wrong and illegal,
could not be maintained and were set aside.

Side Appellant : HANIF KHAN
----S.302(b)---appreciation of evidence ---Sentence, reduction in---Mitigating
circumstances---Both prosecution witnesses attributed the role of firing to
accused, resulting in the death of deceased---Both witnesses had supported
prosecution case and demonstrated complete unanimity on all important
features of the case---Statements of said witnesses corresponded to each other
and there was consistency in their evidence ---Some minor discrepancies coming
on .record during cross-examination of said witnesses, were of minor character,
which hardly be considered sufficient to discard or disbelieve their version---
Relationship of said prosecution witnesses with deceased or complainant, was
no criteria for discarding their evidence , when they were found to have given
trustworthy and confidence-inspiring account of the incident---Acquitted co-
accused having been scribed distinguishable role qua accused, case of accused
could not be treated at par with acquitted co-accused and extend him benefit of
doubt in view of principle of consistency---Acquittal of co-accused would not
detract the credibility of ocular account provided by complainant and her
daughter---Delay in lodging F.I.R., had reasonably been explained and
explanation of fered by complainant was plausible and appeared compatible
with human behavior---Ocular account was fully corroborated by medical
evidence ---Prosecution case was further corroborated by absconsion of accused
who remained absconder for about six years and proceedings under Ss. 204/87,
Cr.P.C. were duly taken against him---No doubt existed regarding commission
of of fence by accused, but despite that it was not a case of capital punishment
because it had come on record that accused had acted under the command of
acquitted co-accused and he had .fired a single shot at the deceased and did not
repeat his act---In view of mitigating circumstances, conviction of accused was
maintained, but, death sentence awarded to him by the Trial Court under S.302
(b), P.P.C. was converted into life imprisonment with benefit of S.382-B, Cr. P.C.,
accordingly.

Side Appellant : NOOR ALI KHAN
----S. 324/34---appreciation of evidence ---Charge against accused was to have

commanded his sons (co-accused) for firing at complainant party---Accused, in
spite of being armed, had not fired at complainant party---Such allegation
against accused was doubtful as evidence on record did not show with certainty
of having shared common intention in causing injury to complainant---
Conviction and sentence awarded to accused by Trial Court was set aside and he
was acquitted of charged of fence.

Side Appellant : NOOR ALI KHAN
---S.324/34---appreciation of evidence ---Daylight occurrence---Medical

evidence supported recovery of pellet .from body of complainant---Version of
complainant as contained in F.I.R. was supported by him and eye-witness, and
they were consistent as to .firing at complainant by accused and receiving injury
thereby---Record did not show that complainant was inimical towards accused
persons---Presence of complainant at the spot could not be doubted in view of
fire-arm injury sustained by him---Non-recovery of blood and empties from spot
could not adversely affect prosecution case as remaining evidence on record was
sufficient to prove guilt of accused and absconded accused---Conviction and
sentence of accused and absconded accused were maintained in circumstances.

Side Appellant : ROMAN ALI alias ALI
---S. 13---Surrender of Illicit Arms Act (XXI of 1991), S.7---Criminal Procedure

Code (V of 1898), S.103---appreciation of evidence ---Search proceedings---All
prosecution witnesses were police of ficials and prosecution case mainly hinged
upon the testimony of prosecution witnesses---One of the said prosecution
witnesses was alleged to have made the recovery while the other witness was
stated to have witnessed search and recovery of Kalashnikove---Both
prosecution witnesses had admitted in their statements that besides accused,
three other persons of the locality were also present at the spot, but they were
neither associated with the search and recovery proceedings nor any reason was
shown for non-compliance of provisions of S.103, Cr. P. C. ---Compliance of
S.103, Cr. P. C. was not possible only when no one lived in the place of search
except the of fender---Besides accused, three other persons were present at the
place where the raid was conducted, but none of them was associated with
search and recovery proceedings---Requirements of S.103, Cr. P. C. had not been
fulfilled, in circumstances, especially when no evidence was on record to suggest
that said persons had expressed their unwillingness to become witnesses of the
recovery---In absence of any explanation to condone the legal requirement of
associating two persons of the locality with recovery proceedings, legality of
search and recovery had become suspicious and unbelievable---Impugned
judgment was set aside and accused was acquitted of the charge levelled against
him and he was released.

Side Appellant : HABIB ULLAH
---S. 13---Explosive Substances Act (VI of 1908), S.5---appreciation of evidence

---Case of conviction of accused, though entirely rested on evidence of police of
ficials and no independent witness was associated with the search, but that
omission on the part of prosecution would not vitiate the proceedings---Mere
fact that prosecution had not complied with the provisions of S.103, Cr.P.C., was
not sufficient for setting aside conviction of accused; it was not an absolute
requirement that in each and every case witnesses from the public must
necessarily be produced as that requirement depended upon the facts of each
case---Main object of provisions of S.103, Cr.P.C. was to avoid concoction, while
in the present case neither any allegation of concoction was made nor accused
was alleged to have been prejudiced in his defence due to non-compliance of
S.103, Cr.P.C.; there was no allegation that recovered items were planted by the
police of ficials just to make out a false case against accused for some ulterior
motives---Lengthy cross-examination of prosecution witness, there was nothing
material brought on record to shatter his testimony---Another prosecution
witness who was alleged to be one of marginal witnesses of recovery memo. had
fully supported prosecution case and stated that recovery was made in his
presence---evidence of first prosecution witness stood duly corroborated by
evidence of the other witness---None of said two witnesses had deposed about
any enmity with accused so as to implicate him in a false case---Recovery of huge
quantity of arms and ammunition ruled out the possibility of false implication of
accused---Prosecution case was further corroborated by positive report of A.I.-G.
(Bomb Disposal) who had examined the sample of explosive material---Not
sending arms to the Arms Expert for his opinion, was not fatal to prosecution
case because accused had not alleged that he had transported unserviceable
weapons and ammunition---Sending of ammunition to Arms Expert for his
opinion otherwise, was also not a legal requirement---Plea of accused that
confession was extracted from him through coercion was not supported by any
evidence ---evidence produced 'by prosecution, had proved guilt of accused
beyond doubt, and he was rightly convicted and sentenced by the Trial Court---
Impugned judgment, in circumstances, was not suffering from any infirmity
calling for interference by High Court.
Side Appellant : HAQ NAWAZ
---S. 324---appreciation of evidence ---Sentence, reduction in---Prosecution

witnesses had clearly stated that accused had fired at complainant---No conflict
existed between oral and medical evidence ---Identification of accused at the
time of occurrence was not doubtful---Co-accused who was acquitted of the
charge in the case, as he was not charged in F.I.R. for any effective firing---Such
fact would not make case against accused doubtful in any manner---Trial Court
in circumstances, had rightly convicted accused, but punishment of three years
awarded to accused was excessive in circumstances of the case which was
reduced to one year with fine of Rs.10,000, with facility that benefit under S.382-
B. Cr.P. C. was given to the accused.
Side Appellant : GHUNCHA GUL
---Ss. 9(c), 25, 29 & 48---Criminal Procedure Code (V of 1898), S.103---

appreciation of evidence ---Sentence, reduction in----Search proceedings---Both
prosecution witnesses were consistent on material points and no contradiction
whatsoever could be pointed out to cause dent in the prosecution case---
Statements of both said witnesses tallied with each other---Said witnesses were
subjected to fairly lengthy cross-examination, but they faced the same
successfully---Both witnesses though were police of ficials, but nothing was on
record to show that they had any feeling of ill-will or motive to falsely implicate
accused---Discrepancies pointed out in the case were minor in nature and did not
damage prosecution case in any manner---Report of Chemical Examiner showed
the recovered substance to he charas---Accused had submitted that provisions of
S.103, Cr.P.C. had been violated by the police as respectable inhabitants of the
locality were not called upon to join recovery proceedings---Said objection was
also not entertainable as under S.25 of Control of Narcotic Substances Act, 1997,
applicability of S.103, Cr.P.C. had been excluded--Prosecution, in circumstances
had proved the guilt of accused beyond any reasonable doubt and had
successfully discharged its burden through consistent and confidence-inspiring
evidence ---Accused had made no endeavour to rebut prosecution version by
discharging his burden under S.29 of Control of Narcotic Substances Act, 1997---
Judgment of the Trial Court being based on correct application of law and
proper appreciation of evidence , same could not be interfered with---Accused,
however was a young man of 30/32 years of age and entire future was before
him---Possibility of accused having acted as carrier could not be ruled out---
Reduction in sentence of accused, had not been opposed by opposite side---
Maintaining conviction of accused, his sentence was reduced from 4 years' R.I. to
2 years' R.I.-Benefit -under S.382-B, Cr.P.C. would remain available to accused.
Side Appellant : ASAR ALI
Side Opponent : MUHAMMAD ZADA
---Ss. 324 & 337(d)/34---appreciation of evidence ---Ocular account corroborated

by medical evidence ---Effect---Quality and not quantity of evidence to be taken
into account---Principles---Allegation against accused/appellant was that he
along with co-accused attempted at the life of complainant by firing---Trial Court
while acquitting co-accused convicted and sentenced accused to imprisonment
for 5 years under S.324, P.P.C. and payment of Arsh to complainant under
S.337(d), P.P.C.---Accused/appellant contended that Trial Court had not
appreciated evidence in its true perspective; that ocular account was in conflict
with medical evidence ; that delay in lodging F.I.R. showed that it was a
concocted case and that appellant had no motive of his own to commit crime---
Validity---Ocular testimony of complainant and other eye-witness was found to
be trustworthy by Trial Court and their appearance at the site had been
established beyond any shadow of doubt---Court had to see quality, not quantity
of evidence and if ocular account was confidence inspiring then the same was to
be relied upon to sustain conviction---F.I.R. was lodged by complainant within
two hours of occurrence and such promptitude in lodging F.I.R. had ruled out
any possibility of consultation and deliberation---Specific role assigned to
accused was corroborated by medical evidence ---Positive reports of Experts,
recoveries, motive, medical evidence and abscondence of accused fully proved
prosecution case---Each criminal case stood on its own footing; and facts and
circumstances in one case might not be quite similar on all fours to the other---
Prosecution had successfully proved its case against accused and no exception
was to be taken to judgment of ' Trial Court---Appeal was dismissed.
Citation Name : 2007 PCRLJ 664 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : ABDULLAH KHAN
--Ss. 324, 337-F(v) & 34---appreciation of evidence ---Benefit of doubt---Rule of

consistency---Applicability---Both prosecution witnesses who fully supported
prosecution version were thoroughly cross-examined, but in their lengthy cross-
examination nothing material could be brought on record to shatter their
testimony---Said witnesses were consistent that on the day of occurrence,
accused had effectively fired at complainant with a .30 bore pistol---Minor
discrepancies in statements of said witnesses were not fatal to the prosecution
case as both had supported each other regarding material aspects of the case---
Witnesses had given a true account of the incident regarding effective firing by
accused---Incident was a broad-daylight occurrence and there was no possibility
of mistaken identity----Complainant party had no enmity with any other
person---Even otherwise no justification was available for false involvement of
accused---Delay in making report had occurred due to serious condition of
complainant---Allegation and proof of motive, was not a legal requirement for
conviction of accused as motive by itself would not prove or disprove any
assertion---Absence or weakness of motive was not helpful to accused against
whom direct impeachable evidence was available---Acquittal of three co-
accused, also would not detract the credibility of the ocular account provided by
complainant and other prosecution witness---Co-accused were acquitted by way
of abundant caution by giving them benefit of doubt as they were not assigned
the role of effective firing whereas accused stood charged for effective firing---
Rule of consistency, in circumstances, was not applicable to accused---evidence
furnished by prosecution witnesses, did not suffer from any inherent or
significant defect---No evidence was on record suggesting that involvement of
accused was on account of some ulterior motive---Mere fact that prosecution
witness was real brother of complainant/prosecution witness, by itself, was not a
sufficient ground for disbelieving his testimony---Medical evidence was
consistent with the testimony of prosecution witnesses---Recovery of three
empties of .30 bore from the place of occurrence was an additional piece of
evidence supporting prosecution version---Report of Arms Expert also revealed
that all three empties were fired from one and the same .30 bore weapon---
Unexplained abscondence of accused for a period of four months, was also a
strong piece of corroborative evidence indicating his guilt---Case against accused
having fully been proved, he was rightly convicted and sentenced.

Side Appellant : MUHAMMAD IQBAL alias BILLA
---S. 302(b)-appreciation of evidence ---None of the three eye-witnesses, who

were close relatives of 'deceased, had either gone to the police station for lodging
the report or informed the police through any means and they remained at the
spot till the arrival of the police after about two hours of occurrence, without any
explanation for that---One of the prosecution witnesses had also expressed his
inability to show exact duration between the time of occurrence and the time of
report---Statements of prosecution witnesses had indicated that report of the
complainant was recorded after preliminary investigation---Presence of one of
the prosecution witnesses, neither was explained in the F.I.R. nor in the
statements of other two alleged eye-witnesses---Statement of complainant had
indicated that at the time of firing at the deceased, other prosecution witness was
not present at the scene of occurrence and that said prosecution witness had
deposed against accused due to enmity---Testimony of alleged eye-witnesses
also was belied by medical evidence and material contradictions in the
statements of alleged eye-witnesses and the medical evidence had made
prosecution case highly doubtful---Besides being relatives of deceased, all three
alleged eye-witnesses had enmity with accused and their alleged presence at the
spot for two hours after the occurrence was not justified and their testimony was
not receiving corroboration by any other independent reliable evidence
---Presence of said witnesses at the spot was highly doubtful---Hearsay evidence
of prosecution witnesses being not supported by any other reliable evidence was
also ruled out of consideration---Report of Fire-arms Expert also did not hold
any respect because empties allegedly recovered from the spot remained in the
custody of S.H.O. for a period of four months; and it was not proved on record
as to whether the empties sent to the Arms Expert were the same as recovered
from the spot or subsequently planted---Recovery of Kalashinkov, was also not
witnessed by respectable inhabitants of the locality---Abscondence of accused by
itself alone was not a proof of guilt of accused---Such a conduct was equally
consistent with guilt and innocence---In absence of any other reliable evidence ,
abscondence could not be made the basis of conviction of accused---Prosecution
having failed to prove the guilt of accused beyond reasonable doubt, impugned
judgment passed by the Trial Court was set aside and accused was acquitted of
the charge levelled against him.
Side Appellant : JAVAID SHAH
----S. 302(b)---appreciation of evidence ---Accused stood directly nominated in
the promptly lodged report for commission of crime---Medical evidence had
fully corroborated prosecution story---Mere fact that no empty had been
recovered from the spot and no weapon had been recovered from possession of
accused, was not fatal to the prosecution---Complainant, who was sole witness of
the occurrence, had faithfully deposed what was seen by him---Said witness
being natural, was thoroughly cross-examined by the defence, but his testimony
could not be shattered---Witness though closely related to deceased, but his
relationship with deceased was no ground for discarding his evidence as
testimony of related witness could sustain conviction, if found free from doubt
or infirmity---Testimony of a solitary witness by itself, was not a demerit or
disqualification as could call for its repudiation, when otherwise it rang true and
inspired confidence---Motive had been satisfactorily established through
deposition of complainant---Even otherwise absence or weakness of motive, was
not a valid ground to disbelieve the eye-witness account, if otherwise it was
found independent and confidence inspiring---evidence of eye-witness if
substantially corroborated, would sufficiently establish the charge of murder
against accused---Accused remained absconded for more than 14 years and
could not explain such long abscondence---Counsel for accused could not point
out any serious defect in the investigation, other than certain minor lapses which
did not affect the validity of the trial---Prosecution had produced credible and
legal evidence to connect accused with the guilt and he had been rightly
convicted and sentenced by the Trial Court---Findings of the Trial Court could
not be shown to have been given on misreading or non-reading of evidence
---Impugned judgment of the Trial Court being based on correct application of
law and proper evaluation of evidence , appeal against judgment of the Trial
Court, was dismissed and impugned judgment was maintained---Trial Court,
however had advanced cogent reasons for taking lenient view in the matter and
had declined to award death penalty to accused.

Side Appellant : GUL AMIN
----S. 9(c)---appreciation of evidence ---Benefit of doubt---No credible evidence

was on record to connect accused with the commission of of fence---Prosecution
even had failed to disclose any connection of accused either with the motorcar
from which contraband charas and opium were recovered, either as its owner or
driver or in any other capacity or with the ownership of contraband charas and
opium, which were recovered from its dicky and foot mats of the car---Where
contraband material was found lying concealed in a vehicle in a manner that it
was not discoverable from inspection of the vehicle and it was necessary to have
special knowledge about its concealment to recover it, in such cases mere
presence of a person in the vehicle could not make him liable for conscious
possession of such contraband articles---In such cases, it was necessary for
prosecution to further show that presence of contraband material was within his
knowledge or that he had such a connection with the vehicle as amounting to his
conscious possession of such contraband articles lying concealed in the vehicle
and it could not be said on basis of evidence on record that prosecution
succeeded in establishing any connection between accused and contraband
material recovered from motorcar in question---Investigating Agency had
appeared to have acted with ulterior motive to the extent of real accused---
Prosecution had not been able to establish its case against accused beyond
shadow of reasonable doubt---Judgment of the Trial Court, was not based on
proper, just and legal appreciation of evidence on record and prosecution case
was doubtful in nature---Accused in circumstances was entitled to acquittal---
Impugned judgment of the Trial Court was set aside with the direction that
accused be released from jail.
Side Appellant : GUL AMIN
----S. 9(c)---appreciation of evidence ---Prosecution primarily was supposed to

establish guilt against accused beyond shadow of reasonable doubt by bringing
trustworthy, convincing and cogent evidence for the purpose of awarding
conviction---To inflict capital punishment of death or that of life imprisonment,
prosecution was under statutory obligation to furnish the first degree of proof
through high quality evidence reasonably creating nexus of accused with the
commission of the crime.
Side Appellant : SHAH NAWAZ alias NAWAZAY
---S. 13----appreciation of evidence ---Police party consisting of senior police of

ficials, raided the house of accused, apprehended him form the spot and
recovered a Kalashnikov with live round and spare chargers from his house----
Witnessed had demonstrated complete unanimity on material points and
accused had failed to point out any discrepancy in their statements---
Contradictions highlighted by the counsel for accused were minor in nature on
basis of which it could not be held that the trial of the case stood vitiated---
Prosecution witnesses though were of ficials of police, but they had no reason or
motivation to falsely implicate accused---Acquittal of co-accused would not
detract the credibility of prosecution witnesses as co-accused had earned a
finding of acquittal on valid reasons, which were not questionable---Counsel for
accused could not point out any serious defect in the investigation, other than
certain minor lapses which did not affect the validity of the trial---In absence of
any illegality or infirmity in the impugned judgment of the Trial Court, same
was maintained.
Citation Name : 2007 MLD 639 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : State
Side Opponent : RAZA KHAN
---Ss. 9 & 25-appreciation of evidence ---Petition for enhancement of sentence---

Accused were convicted and sentenced to suffer ten years' R.I. each along with
fine---State in its revision petition had sought enhancement in sentence awarded
to accused by the Trial Court---All prosecution witnesses were unanimous on all
the broad features of the case and their statements bore all shades of
truthfulness---No available reason was for the rejection of their testimony---Mere
fact that witnesses were of ficial witnesses, would not rob their testimony of its
evidentiary worth---Counsel for accused had failed to point out any background
of bitterness or ill-will between the recovery witnesses and accused, so as to
prompt witnesses to falsely involve accused in the case of such nature---Huge
quantity of contraband charas and opium had been recovered from the "gatrees"
carried by accused---Report of Chemical Examiner regarding the samples of the
recovered material, was in the positive---Discrepancies pointed out by counsel
were minor and insignificant and were not fatal to main allegation of recovery of
narcotics---Section 25 of Control of Narcotic Substances Act, 1997 had excluded
application of S.103, Cr.P.C.--Magistrate had recorded confessional statements of
accused persons according to law---Plea of accused being acting in the capacity
of carriers, though was not taken by them before the Trial Court, but under the
law, High Court could consider said plea, if it was borne out from the evidence
produced by the prosecution---Confessional statements of accused, relied upon
by the Trial Court, would reveal that it was specifically stated by accused
persons in confessional statements that they were poor labourers and were
misled to act as carriers for a principal accused---Accused having been found
acting as carriers, sentence awarded to them was appropriate in the
circumstances of the case and did not warrant interference of High Court in its
revisional jurisdiction.
Side Appellant : SAJJAD ALI
Side Opponent : Mst. MAH PARI
---Ss. 302(b) & 458---appreciation of evidence ---Benefit of doubt---Duty of

prosecution---Prosecution primarily was bound to establish guilt against accused
without shadow of reasonable doubt by producing trustworthy, convincing and
coherent evidence enabling the court to draw conclusion; whether prosecution
had succeeded in establishing accusation against accused or otherwise; and if it
would come to the conclusion that the charges so imputed against accused had
not been proved beyond reasonable doubt, then accused would become entitled
for his release on getting benefit of doubt in the prosecution case---Requirement
of the criminal law was that prosecution was duty bound to prove its case
beyond any reasonable doubt and if any single and slightest doubt was created,
it must go to accused and it would be sufficient to discredit the prosecution story
and entitle accused for acquittal.
Side Appellant : SAJJAD ALI
Side Opponent : Mst. MAH PARI
---Ss. 302(b) & 458---appreciation of evidence ---Benefit of doubt---Sole

testimony of complainant was not sufficient to prove the charge against accused,
especially when it was highly doubtful---Statement of complainant, in the
present case, was not reliable and the Trial Court had wrongly believed same to
award conviction and sentence to accused---Depositions of complainant and
other prosecution witness who was grandson of complainant, were inconsistent
inter se and stood belied by the medical evidence and the site plan---Accused
had no motive to commit the of fence nor prosecution had proved any against
him---Occurrence did not appear to have taken place in the manner as alleged---
F.I.R. had not been lodged at police station and it was generally understood that
in such a situation, it was likely that F.I.R. had been registered after due
consultation and deliberation by the complainant party and preliminary
investigation by the police at the spot---Availability of eye-witnesses at the scene
of crime at the relevant time, was found to be quite suspect---Impugned
judgment suffered from a number of legal and factual infirmities and Trial Court
had not been able to prove beyond any doubt that accused was involved in the
crime---Medical evidence being in nature of confirmatory evidence , could not
be considered corroborative evidence ---Abscondence of accused could be taken
as corroborative evidence and not evidence of the charge against accused---
Crime empties recovered from the spot during investigation, had not been sent
to the Fire Arm Expert for ascertainment of the fact whether same were fired
from one weapon or more of -same calibre/bore---Plea of alibi taken by accused,
stood satisfactorily proved---If oral evidence was discarded then no conviction
could be based on corroborative piece of evidence ---Case of prosecution being
highly doubtful against accused, he was entitled to the benefit of doubt---
Allowing appeal conviction and sentence recorded by the Trial Court against
accused were set aside and he was acquitted of the charges and was directed to
be released, accordingly.

Side Appellant : MUNIR KHAN
---Ss. 9(c) & 29---Control of Narcotic Substances (Government Analysts) Rules,

2001, Rr.4 & 5---appreciation of evidence ---Both prosecution witnesses were
subjected to lengthy and searching cross-examination, but defence could not
shatter their veracity or lay foundation to establish the false implication of
accused in the case---Nothing favourable to accused could be elicited during
course of fairly lengthy cross-examination of accused, except certain minor
contradictions and infirmities, which were not fatal to prosecution case---Both
said witnesses had given consistent statements which could not be brushed aside
merely because they were police of ficials---Both prosecution witnesses had no
previous enmity or ill-will against accused, so as to involve him in a false case--
Both said witnesses had corroborated each other on almost all material facts and
their statements, were also supplemented by the report of Chemical Examiner---
Such a huge quantity of Charas could not have been planted by the police
against an innocent person regarding whom nothing was on file to suggest that
police had got any malice or ill-will for his false implication--Minor
contradictions between statements of prosecution witnesses, were not fatal to
prosecution case---Prosecution had succeeded in discharging initial burden to
prove its case beyond reasonable doubt within the purview of S.29 of Control of
Narcotic Substances Act, 1997 and defence had failed to prove innocence of
accused---Specimen separated from contraband Charas though was received by
Forensic Science Laboratory after 4/5 days of seizure, but said delay in sending
incriminating articles for expert opinion, could not be treated fatal in absence of
objection regarding the same having been tampered with or manipulated---
Control of Narcotic Substances (Government Analysts) Rules, 2001, which were
directory in nature and not mandatory, had placed no bar on Investigating of
ficer to send the samples beyond seventy-two hours of the seizure, receive the
Forensic Science Laboratory report after fifteen days and the report so received to
place before the Trial Court---Said Rules could not control the substantive
provisions of Control of Narcotic Substances Act, 1997 and would not frustrate
the purpose of the Act under which those were framed--Failure to follow Control
of Narcotic Substances (Government Analysts) Rules, 2001 would not render the
search, seizure and arrest an absolute nullity and non-est and make the entire
prosecution case doubtful--Plea of blindness of accused which had not been
taken by accused at any stage of the trial had found no mention in the statement
of accused recorded under S.342, Cr.P.C.---Prosecution having been successful in
proving its case against accused, the Trial Court had rightly convicted and
sentenced accused.
Side Appellant : MUHAMMAD AKBAR
Side Opponent : ALIF KHAN
---Ss. 8, 42 & 54---Civil Procedure Code (V of 1908), O.XX, R.5, O.XLI, R.31 & S.
115---Suit for possession, declaration and permanent injunction---Plaintiff
claiming declaration to the effect that he was owner in possession of suit-land by
virtue of oral sale; and entries in the Revenue Record incorporated during the
settlement in the name of predecessor-in-interest of defendants were illegal, void
and ineffective on the right of plaintiff--Plaintiff also prayed for grant of
permanent injunction and in the alternative he also prayed for possession of suit-
land in case he was not found in possession of same---Suit was concurrently
dismissed by the courts below---Validity---Onus to prove the factum of oral sale,
was heavily placed on the plaintiff being beneficiary, but he had failed miserably
to discharge the same as evidence produced by him was discrepant,
contradictory and suffering from infirmities---Plaintiff had not been able to show
that entries incorporated in the Revenue Record were illegal and void qua his
rights--Concurrence of facts recorded by the courts below being based on correct
appreciation of evidence , were not amenable to revisional jurisdiction of High
Court, especially when plaintiff could not point out any misreading or non-
reading of evidence by the court below--Appellate-Courts had given its findings
on all points of controversy and no prejudice seemed to have been caused to
plaintiff and Appellate Court dealt with the issue involved in case and decided
same in a careful manner---Giving issue-wise findings by the Appellate Court
was not the requirement of law as under O.XLI, R.31, C.P.C. Appellate Court
was to state the points for determination, give its decision thereon and reasons
for the said decision be also mentioned---Objection of plaintiff that provisions of
O.XLI, R.31, C.P.C. had not been complied with, had no force, in circumstances.
Side Appellant : Mst. NOOR BIBI
---Ss. 9(c), 25 & 29---appreciation of evidence ---Sentence, reduction in---

Prosecution witnesses had supported the recovery of 6900 grams of Charas from
the possession of accused---Both said witnesses had demonstrated complete
unanimity on material points and accused had failed to point out any
discrepancy in their statements---Contradictions highlighted by the counsel for
accused, were minor in nature on the basis of which it could not be held that the
trial of the case stood vitiated---Prosecution witnesses, though were of ficials of
police, but they had no reason or motivation to falsely implicate accused---
Counsel for accused had not urged any rancour or animosity against said
witnesses with accused---Said witnesses had made consistent statements on
material points and accused had failed to point out any discrepancy in their,
statements---Non-preparation of the site-plan, by Investigating of ficer could not
affect prosecution case, when Investigating of ficer had of fered sufficient reason
for non-preparation of said site-plan and case of prosecution was proved beyond
any reasonable doubt---Report from the of fice of Chief Chemical Examiner in
respect of samples of Charas, was positive---Section 25 of Control of Narcotic
Substances Act, 1997 had excluded application of S.103, Cr.P.C.---Section 29 of
Control of Narcotic Substances Act, 1997, had provided that presumption was of
possession of illicit articles, unless person proceeded against would rebut such
presumption---Conclusion drawn and reason advanced by Trial Court, had
shown fair evaluation of evidence which was in accordance with settled
principles of criminal justice---In absence of any illegality or infirmity in the
impugned judgment, order of conviction of accused, was upheld, but in view of
circumstances of the case, sentence of four years' R.I. was reduced to three years
and sentence of ' fine was also reduced from Rs. 30,000 to Rs. 20,000 accordingly.
Citation Name : 2007 CLC 743 PESHAWAR-HIGH-COURT-NWFP

Side Appellant : Mst. PARVEEN BIBI
Side Opponent : RAEES KHAN
---S. 115 & O. VII, R.2---Suit for recovery of amount---Suit having concurrently
been decreed by the Trial Court and Appellate Court, defendant had filed
revision against said concurrent judgments---Concurrent findings of facts
recorded by the courts below were based on correct appreciation of evidence ,
which hardly called for interference of High Court in its revisional jurisdiction---
Both Courts below had given exhaustive judgment after due appraisal of
evidence on record and after discussing all the pros and cons of the case---No
legal defect was found in impugned judgments which were in harmony with the
evidence on record---Conclusion of fact arrived at concurrently by the lower
courts, was not open to challenge in revision, particularly when no specific
misreading or non-reading of evidence had been pointed out---evidence on
record had been properly appreciated and no prejudice seemed to have been
caused to defendant---Appellate Court was alive to the legal situation and issue
involved had been dealt with and decided in a careful manner---Appellate Court
had given its finding on all the points of controversy---Revision against
judgments of Courts below being bereft of merits, was dismissed, in
circumstances.

Side Appellant : ABDUL AHAD
---Ss. 295-B & 188---appreciation of evidence ---Complainant at bail stage in his

statement on Oath had exonerated accused from the charge, but while appearing
at the trial as prosecution witness he resiled from his earlier statement giving
unfounded explanation that he had given same under the pressure of elders of
the area---Complainant, who was the star witness, had come out for a noble
cause, but his subsequent vacillating and wavering conduct, jumping from one
stance to another, had reduced his credibility almost to naught---Complainant,
who made statements mutually inconsistent, was neither reliable nor was
entitled to be listened to as credibility-wise the probative value of his testimony,
was drastically reduced---Complainant had not brought on record his religious
qualification to prove the level of his knowledge with regard to Islamic "Fiqah
---Court witness at the trial had given indescriptive, inconclusive and variant
rather inconsistent opinions on the issue, which under no circumstances could be
made safe or valid basis for conviction on capital charge, but Trial Court had
acted blind foldedly while placing reliance on it---Accused on available evidence
, in no manner could be tagged with the alleged of fence as prosecution had
miserably failed to establish a direct nexus between accused and alleged
objectionable booklets---Investigations were choked in half way without taking it
to ultimate and logical conclusion as the person responsible for authoring the
text, printing and publishing the same had not been discovered---evidence led at
trial left behind much to be debated upon---Same was of very little evidentiary
value entirely insufficient to convict accused to suffer capital punishment---
Religious scholar appeared as witness had neither brought on record his
qualification nor had told the court about his competency in delivering "Fatwa"
against accused; he could not quote anything from "Sharia" that any addition
which was not derogatory in nature to the original text of a "Surah"; would come
within the mischief of desecration or distortion of Holy Qur'an or part of it---In
absence of any quotation to support his view, opinion expressed by the witness,
was neither legally admissible nor relevant as it was an opinion of the witness
who had not established his competency in relevant field---Added text in the
booklet in question, did not carry any word which could be held a deliberate
distortion of the text of said two "Surahs" with intention to bring it into
disrespect nor it changed its meaning and the message of Allah the Almighty---
Trial Court had committed glaring illegality in ignoring the evidence and the
legal position emerging therefrom and did not observe a little care and caution as
to whether of fence under S.295-B, P.P.C. was constituted or not---Such a careless
dispensation of justice, would never be conducive to the system of criminal
justice---evidence led by prosecution was highly incredible, unreliable and
absolutely insufficient for recording conviction on a capital charge---Conviction
and sentence awarded to accused by the Trial Court, were set aside and accused
was ordered to be set free.
Citation Name : 2007 PLD 72 LAHORE-HIGH-COURT-LAHORE

Side Appellant : NIAZ MUHAMMAD
---S. 302(b)---appreciation of evidence ---Sentence, reduction in---Mitigating
circumstances---Both prosecution witnesses, though were related to deceased,
but their statements could not be discarded merely on the basis of relationship---
Incident was a case of single accused and daylight occurrence and both
prosecution witnesses had no previous enmity or ill-will against accused, so as to
involve him in false case---Both witnesses had given a very consistent account of
occurrence and had corroborated each other on almost all material points---
Matter was reported promptly to the police within an hour---Minor
discrepancies in prosecution evidence pointed out by counsel for accused, were
of no consequence as same had cropped up naturally when evidence was
recorded after delay of more than 5-1/2 years---Ocular account was fully
supported by medical evidence which was also corroborated by factum of
abscondence of accused---Prosecution had successfully proved its case against
accused through ocular account, which was supported by medical evidence and
corroborated by abscondence of accused---Case against accused was of capital
sentence, but some mitigating circumstances existed in case of accused; firstly
accused was less than 20 years of age on the date of occurrence; secondly, no ill-
will or enmity existed between deceased and accused, who were almost of the
same age prior to the occurrence; thirdly, motive as set down in the F.I.R. was
trivial in nature and was not supported by any independent evidence ; and,
fourthly, accused was not carrying with him any fire-arm and left scene of
occurrence after giving solitary blow with chhurri on the person of deceased---
Maintaining conviction of accused for of fence under S.302(b), P.P.C., his death
sentence was reduced to imprisonment for life accordingly and benefit of S.382-
B, Cr.P.C. which was mandatory, was also extended to him.
Citation Name : 2007 YLR 1251 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD SHAFIQUE alias BHOLA
--S. 302 (c)---appreciation of evidence ---Benefit of doubt---Prosecution, in order

to prove its case against accused, had relied upon evidence of dying declaration,
last seen, extra judicial confession of accused, recovery of incriminating articles
at the instance of accused---Deceased, in the dying declaration had not disclosed
the identity of accused who had caused him injuries which part of evidence was
of no help to prosecution case---Witness of last seen never appeared before the
police on the day when F.I.R. was registered, although he had participated in the
funeral ceremony of deceased and at that time police of ficials were also present,
but said witness never made statement before the police at that time and got
recorded his statement under S.161, Cr. P. C. at the police station after 10/12
days of the occurrence---Said unexplained delay of many days in recording
statement of witness during investigation of the case; had cast doubts upon the
authenticity of evidence of last seen---Even otherwise evidence of last seen, in
the absence of any corroborative piece of evidence , was of no legal value--No
occasion existed for accused to make alleged extra judicial confession before the
witness because said witness neither was closely related to the complainant party
nor was in a position to exert his influence on complainant party for compromise
or to give pardon to accused---Statement of said witness was absolutely silent
with regard to any promise with accused about any kind of help to save his
life---Said witness after hearing the confessional statement, never attempted to
apprehend accused at the spot nor he raised hue and cry to attract attention of
passengers in that regard---Conduct of said witness was also very unnatural and
sufficient to doubt his credibility---Regarding recovery of incriminating articles
at the instance of accused, fact was that accused was taken into custody after
10/11 days of occurrence and he had ample time to wash blood stains from said
articles or to destroy the same---Accused got recovered said articles from bushes
on the bank of rain storm channel, which was an open place accessible to
public---Possibility of placing said articles later on by someone else, could not be
ruled out---Such loopholes, were sufficient to doubt credibility of prosecution
case entitling accused to get benefit of the same---Conviction and sentence
awarded to accused by the Trial Court, was set aside and he was acquitted from
charge.

Side Appellant : GHULAM RASOOL
---Ss. 302(b) & 452---appreciation of evidence ---Both eye-witnesses had

improved their statement's on material points---Occurrence had taken-place in
the night, but eye-wit;iesses did not disclose the source of light in their
statements before the police and also improved their statements by stating that
tube-light was on---Such dishonest improvements were fatal to prosecution
story---No identification parade was held in the case---One of prosecution
witnesses who was nephew of deceased and was residing away from place of
occurrence and could not give sufficient explanation for his presence at the spot
at relevant time was a chance witness---Ocular account in circumstances was not
trustworthy and could not be relied upon for maintaining conviction of accused
in a case entailing capital sentence---Post-mortem examination of deceased was
conducted with a delay of fifteen hours after the occurrence, despite deceased
was immediately removed to the hospital after incident who died there---
Conducting of delayed post-mortem was sufficient to lead an inference that time
was consumed in concocting the story and F.I.R. was not lodged with
promptitude in which accused was named only on account of suspicion---
Recovery of pistol from accused was useless as no empty was recovered from the
spot and report of Forensic Science Laboratory was only to the effect that said
pistol allegedly recovered from accused was in a working condition---
Investigating of ficer had also not taken into possession any empty from the
spot---Such recovery of pistol could not provide any corroboration to ocular
account---Medical evidence could not pinpoint assailants, who had fired at
deceased---Medical evidence , in circumstances, was of no help to prosecution
for bringing home guilt to accused---Prosecution having failed to prove case
against accused beyond any shadow of doubt, conviction and sentence awarded
to accused by the Trial Court, were set aside and accused was acquitted of the
charge against him by extending him benefit of doubt and he was set at liberty.

Side Appellant : MUHAMMAD AMIN
---S. 302(b)---appreciation of evidence ---Medical evidence was in conflict with
ocular account---Presence of both the eye-witnesses at the spot as claimed by
prosecution witnesses, had been falsified by medical evidence ---Both the eye-
witnesses at the trial had also tried to improve their statements to bring it in line-
with medical evidence ---Such improvement being dishonest one, prosecution
witnesses could not be termed as truthful witnesses and could not be relied upon
in a case entailing capital sentence---Prosecution witnesses were real brothers
and deceased was also their real brother---Both said eye-witnesses had made
contradictory statements with each other which had shown that they had not
spoken the whole truth---Presence of both said witnesses at the spot had also
become doubtful---Post-mortem of dead-body of deceased was conducted after
about 7/8 hours without any reasonable explanation---Inquest report and injury
statement, did not bear signatures and stamp of the Doctor---Story that F.I.R. was
registered immediately after occurrence, had become doubtful, in
circumstances---Rough sketch of site-plan and site plan prepared by
Investigating of ficer did not mention names of witnesses or accused and also
place from where the fire was made at deceased by accused---Recovery of
empties as claimed by prosecution, was also in contradiction with statement of
Investigating of ficer---After effecting recovery of two empties, both were kept in
"Maal Khana" and were sent to the of fice of Forensic Science Laboratory after 20
days---Even otherwise said recovery of empties from the spot was doubtful and
contradictory to medical evidence ---Carbine allegedly recovered from accused
was also sent to Forensic Science Laboratory after more than three months of its
recovery--Both recovery witnesses were found contradicting each other---Said
recoveries were also effected in violation of S.103, Cr. P. C. ---Motive of
occurrence had also not been proved---Prosecution having failed to prove case
against accused beyond any shadow of doubt, benefit of same would go to
accused---Conviction and sentence recorded by the Trial Court against accused,
were set aside and he was acquitted of the charge and was set at liberty, in
circumstances.
Side Appellant : MUHAMMAD ASIF
---S. 302 (c)---appreciation of evidence ---Site plan had shown that occurrence
had taken place in a thickly populated bazar having shops on both the sides, but
no independent eye-witness was produced by the prosecution---Enmity between
the parties had not been denied even by the prosecution witnesses---Though five
accused were shown to be present at the spot who allegedly fired at the deceased
with different fire-arms, but accused was stated to be armed with .30 bore
pistol---No empty of pistol was recovered from the spot and only empties of 7
mm rifle were recovered---Even after arrest of accused, no. weapon of of fence
was recovered from accused---Plea of innocence raised by accused, was admitted
by Investigating of ficer and Investigating of ficer had further stated that son of
real brother of deceased had stated before him that accused was not present at
the time of occurrence and that no recovery was effected from him---Both the
eye-witnesses were related to deceased and were inimical to accused---No
independent corroboration was available as no independent eye-witness had
either been produced before the police or the Trial Court---To maintain a
conviction on capital charge, especially when both the parties were inimical
towards each other, independent corroboration was very necessary, which was
lacking in the case---Complainant party was also involved in the murder of some
other person, which factum had also been admitted by both the eye-witnesses---
Prosecution having failed to prove its case against accused beyond any shadow
of doubt to maintain conviction of accused, impugned judgment of Trial Court
was set aside and accused was directed to be released.
Side Appellant : MUHAMMAD SALEEM
--- Ss. 302(b)/34 & 324/337-A(i)/337-L(ii)/34---appreciation of evidence

---Motive for the of fence was not proved by the prosecution---Accused had not
caused any injury to any deceased---One hatchet blow was attributed to accused
on the left arm of a prosecution witness which was not supported by medical
evidence --Improvements made by the prosecution witnesses in this regard were
wilful---Accused was acquitted in circumstances.
Side Appellant : MUHAMMAD SALEEM
--Ss. 302(6)/34 & 324/337-A(i)/337-L(ii)/34,--appreciation of evidence

---Sentence, reduction in---Prosecution had failed to prove the motive for the of
fence---One eye-witness was no doubt related to the deceased, but the other two
eye-witnesses were not so related, who were residents of the same Chak and had
reasonably explained their presence at the spot at the relevant time---Said eye-
witnesses were named in the. promptly lodged F.I.R. and. were not shown on
record to have any ill-will or motive for false implication of accused---Ocular
testimony was consistent and was supported by medical evidence ---Convictions
of accused were consequently maintained---One accused had given a Chhurri
blow under neath the arm pit of the deceased which proved fatal and death
sentence awarded to him was confirmed---Sentences of death awarded to other
accused being harsh had been altered to imprisonment for life each---Sentences
were directed to run concurrently with benefit of S. 382-B, Cr. P. C.
Side Appellant : MUHAMMAD FAROOQ
---Ss.13 & 13-R---appreciation of evidence ---Sentence, reduction in---Both

prosecution witnesses had fully supported recoveries and they were consistent
regarding time, place and mode of recovery---No discrepancy or contradiction
was found between the statements of prosecution witnesses; their statements
were confidence-inspiring and there was no reason to discard their testimony---
Contention of accused regarding non-compliance of provision of S.103, Cr.P.C.
was also misconceived, as in such-like cases compliance of S.103, Cr.P.C. was not
mandatory---Accused had not been able to point out any discrepancy or
contradiction on the file---Prosecution having proved its case beyond any
shadow of doubt against accused, appeal against judgment of Trial Court, was
dismissed---Sentence awarded to accused, however, was too harsh as case
against accused was decided after about 10 years and accused had faced the
agony of protracted trial for such a long period---Accused deserved leniency and
by taking a lenient view, sentence awarded to accused was reduced to three
years.
Side Appellant : MUHAMMAD ISHAQUE
---S. 302(b)---appreciation of evidence ---F.I.R. was not got recorded with

promptitude---Post-mortem examination of deceased had been conducted with
delay without any reason---Possibility could not be ruled out that time was
consumed in fabricating the story---Said F.I.R. could not be used as a
corroborative piece of evidence ---Both prosecution witnesses being brothers and
sister were related inter se and with deceased---Such prosecution witnesses who
had previous enmity with accused, could be termed. as interested witnesses-
Incident was a night occurrence and prosecution could not prove that there was
light or electric bulb was on at the relevant time at the place of occurrence---Both
eye-witnesses also failed to give any reason for their presence at the spot at
relevant time---Ocular account furnished by both the eye-witnesses was not
believable as occurrence had taken place in the dark hours of night when there
was no source of light---Medical evidence was also found in contradiction with
ocular account--Sufficient doubt had been created about the involvement of
accused in the case as role attributed to him was not supported by medical
evidence and prosecution evidence was not worthy of reliance---Previous
enmity 'existed between the parties and ocular account being inimical, could not
be relied upon, unless same was corroborated by some independent piece of
evidence , which was lacking in the case---Rifle was shown to have been
recovered from accused from his residential room---Said place of recovery was
surrounded by other houses, but no person from the locality was associated in
the recovery proceedings by Investigating of ficer---Report of Forensic Science
Laboratory was that rifle recovered from accused was in working condition and
did not disclose that said rifle was used in the same incident---Such recovery of
of fensive weapon was inconsequential---Prosecution having failed to prove case
against accused beyond any shadow of doubt, impugned judgment of conviction
and sentence passed by the Trial Court against accused, was set aside and
accused was acquitted of the charge against him and was set at liberty.

Side Appellant : AZHAR HUSSAIN
----S. 497---Penal Code (XLV of 1860), Ss.302 & 392---Bail, refused of ---Question
of identification of accused related to deeper appreciation of evidence which
could not be considered at bail stage---Police opinion was not binding on Court
especially when the same was not based upon sound material and in the
presence of statements of eye-witnesses no reliance could be placed on it---
Accused were involved in a heinous case of robbery in which father of the
complainant had lost his life due to fire-arm injuries caused by the accused---of
fences committed by accused fell within the prohibitory clause of section 497 (1),
Cr. P. C. ---Specific role had been attributed to accused who, prima facie, had
fully and actively participated in the crime and caused the murder of an innocent
person just to snatch a motorcycle---Bail was refused to accused in
circumstances.
Side Appellant : MUHAMMAD YUNUS BHATTI
Side Opponent : MUHAMMAD ARIF
---S. 302(b)---Anti-Terrorism Act (XXVII of 1997), S. 7(a)-appreciation of

evidence ---Version of complainant who was father of deceased and other
prosecution witness who was brother of deceased, found corroboration from the
stand taken by accused himself that accused had strained relations with his wife
(deceased)---Doctor had specifically opined that death of deceased had occurred
due to violence on her---Accused being husband of deceased and resident of
same house, was a person who had to be held responsible for the unnatural
death of his deceased wife, unless he proved otherwise---Accused had not of
fered even to make statement on oath under S.340 (2), Cr. P. C. to explain
circumstances in which death of his wife had occurred and he was not put to
cross-examination by the other party to test veracity of his version that his wife
had died natural death---Funeral of deceased had taken place in suspicious
circumstances in the night at 3.00 a. m. and parents of deceased had not joined
said funeral---Such was a strong circumstance to draw an inference that death of
deceased was not natural and accused was afraid that his of fence might come
into light and that was why parents of deceased were informed after burial of
their daughter---Accused could not prove his innocence through statements of
defence witnesses--Prosecution, in circumstances had been able to bring home
guilt to accused beyond any shadow of doubt for committing murder of his
wife---Impugned judgment of conviction and sentence, awarded to accused by
the Trial Court, were maintained---As to what had happened immediately before
the incident resulting into the death of deceased remained shrouded in
mystery---Nothing was brought on record by prosecution to show that under
what circumstances occurrence had taken place---Both accused and deceased had
been living as spouses for the last 17/18 years and four children were born---
Possibility of commission .of occurrence at the spur of moment, could not be
ruled out---Sentence of imprisonment for life awarded by the Trial Court to
accused in peculiar circumstances, would meet the ends of justice---Petition of
complainant for enhancement of sentence of accused, being devoid of any
merits, was dismissed.
Side Appellant : NASEEM AKHTAR alias ASGHAR
--Ss. 302(b), 109 & 34---appreciation of evidence ---Ambiguity in medical

evidence as to nature of injuries---Inhabitants of locality not associated with
recovery proceedings---Non-recovery of crime empties from place of
occurrence---Effect---Allegation against accused/appellants was that they, in the
dark of night, committed murder of four persons with fire-arm and hatchet---
Dispute on seeking of hands of females for marriage was allegedly the cause of
commission of of fence---Trial Court convicted and sentenced accused to death---
Accused contended that F.I.R. was lodged with delay; that occurrence took place
in the dark of night; that there was conflict between ocular account and medical
evidence ; that eye-witnesses were not present at the time of occurrence; that
eye-witnesses involved accused due to previous enmity and that crime empties
were not recovered from place of occurrence---Validity---Eye-witnesses had no
serious enmity or ill-will against accused so as to involve them in a false case---
Eyewitnesses had given consistent account of occurrence and despite their being
subjected to lengthy .cross-examination, no material contradictions could be
brought on record in their statements---In cross-examination, if intrinsic value of
incriminating evidence of a witness had not been shaken, then his statement
could not be discarded for minor contradictions---Admittedly, occurrence took
place in dark but source of light (a lantern) was never challenged---One of the
accused was closely related to both eye-witnesses and the other was previously
known to witnesses, so their identification by eye-witnesses was never in
doubt---Lady doctor who conducted post-mortem of three deceased women
described in her report that apart from fire-arm injuries there were lacerated
wounds on persons of deceased which were caused by sharp-edged weapon---
Lady doctor had inadvertently mentioned "incised wounds" as "lacerated
wounds" but she was not subjected to cross-examination and her statement
remained unchallenged---Doctor who conducted post-mortem of male deceased
had opined that apart from fire-arm injuries there were incised wounds on the
dead-body of deceased---Statements of prosecution witnesses that deceased
received injuries by fire-arm and hatchet had been fully supported by medical
evidence ---Number of injuries on persons of deceased revealed that it was an,
act of assailants who had deep-rooted grudge against deceased---evidence of
recovery of weapons was not worth credence as no one from inhabitants of
locality was associated with recovery proceedings and rifle recovered from
accused was not sent to Forensic Science Laboratory---Contention of accused that
non-recovery of crime empties from spot east doubt on statements of eye-
witnesses was without force as neither place of occurrence was challenged nor
the fact that all deceased received fire-arm injuries---Eye-witness had stated that
empties were recovered from the spot but if the same were not sealed into parcel,
then it was lapse on the part of Investigating of ficer which was not to benefit
defence in any manner---Prosecution witnesses had no motive to falsely
implicate accused in the case and incriminating evidence furnished by them
could not be shaken during lengthy cross-examination---No other motive of of
fence except the one mentioned in F.I.R. was there---Prosecution had thus
successfully proved its case against accused/appellants---Death sentence was
confirmed.
Side Appellant : ZULFIQAR ALI
---S. 302(b)---appreciation of evidence ---Occurrence had taken place in the

house of the complainant---Presence of the complainant in the house at the
relevant time was not disputed even by the accused---Complainant had denied
the suggestion that he had a pistol in his hand at the time of occurrence with
which he fired a shot at his daughter, but the same hit his deceased wife---Had
the complainant any pistol with him he could have easily fired at the accused
and killed him---Plea taken by accused that due to merciless beating of the
complainant he was lying unconscious when the police arrived at the spot, was
not supported by any evidence on record---Statement of the complainant alone
was sufficient to prove the charge against the accused beyond any doubt---
Accused according to record was a spoiled young man of 20 years of age who
had entered into the house of the complainant with evil intention---No
mitigating circumstance was available in favour of accused---Conviction and
sentence of death of accused were upheld in circumstances.
Side Appellant : ABDUL SATTAR alias MUHAMMAD ILYAS
---S. 302/34---Qanun-e-Shahadat (10 of 1984), Art.46---appreciation of evidence

---Dying declaration not supported by any corroborative evidence ---Effect---
Allegation against accused/appellant as per F.I.R. was that he sprinkled
Kerosene oil on deceased, who was standing at corner of street, and set him on
fire---Deceased who was seriously burnt was then taken to hospital by accused
and after getting him admitted there, he fled away---Deceased allegedly
recorded his dying declaration and named accused as perpetrator of of fence---
Trial Court convicted accused and sentenced him to death---Accused contended
that deceased recorded two statements as dying declaration and there were
variations in both statements; that dying declaration was not supported either by
circumstances or by corroborative evidence and that Investigating of ficer
recorded statements of deceased without getting permission from doctor which
also did not contain any time---Validity---Prosecution case rested on statement
made by deceased before prosecution witnesses which was admissible as dying
declaration under Art.46 of Qanun-e-Shahadat, 1984---Statements of deceased
did not reveal that while he was set on fire, the occurrence was witnessed by any
passerby or resident of locality---Story given in F.I.R. and statement of deceased
recorded by Investigating of ficer contradicted each other---F.I.R. stated that
deceased was set on fire in street whereas in statement recorded by Investigating
of ficer it was stated that deceased was set on fire in a house---Even two
statements recorded by Investigating of ficer were different from each other---
Investigating of ficer did not take any permission from doctor before recording
statement of deceased nor it was recorded in presence of doctor---Prosecution
case was supported by medical evidence to the extent that deceased lost his life
due to burns caused by fire and not beyond that---Recovery of plastic gallon
from the house of accused at his own instance was of no consequence as; it was
recovered with delay; it did not have any distinguished features, and eye-witness
was produced in support of recovery---It. did not appeal to reason that accused
after setting deceased on fire would himself carry him to hospital at the great risk
of being pointed out by deceased as culprit---Deceased was a narcotic addict and
a case had been registered against him---Deceased narrated different stories to
prosecution witnesses and Investigating of ficer and his dying declaration was
not worth credence---Case of prosecution rested solely on dying declaration
unsupported by any corroborative evidence ---Prosecution case was not free
from doubt---Accused was acquitted of all charges---Appeal was allowed.

Side Appellant : SHAUKAT ALI
---S. 302(b)---appreciation of evidence --Delay, if any in lodging F.I.R. had

reasonably been explained, even otherwise delay per se, in lodging F.I.R. was not
fatal to prosecution case---Star witness who was injured, though was closely
related to deceased, but he had no enmity or strong motive to falsely implicate
accused in the case---Said witness had reasonably explained his presence at the
place of occurrence; he was subjected to cross-examination, but nothing could be
shaken from his testimony---Other prosecution witness also remained consistent
on all material particulars of the case and nothing could be shaken from his
testimony despite his cross-examination to which he was subjected during the
trial he corroborated statement of eye-witness on the main points---Such
witnesses though was also cousin of deceased, but he had no enmity with
accused to falsely depose against him, he had also reasonably proved his
presence at the spot to have witnessed the occurrence and her testimony was
worthy of credence---Accused was arrested after one and half year of occurrence,
proceedings under S.512, Cr.P.C. were initiated against him and evidence was
recorded---Deceased was done to death for no fault of his in a very brutal and
callous manner by accused---Ocular account in the case was fully corroborated
by medical evidence coupled with its further support from the factum of
recovery, and long abscondence of accused for a period of one and half year---
Incident was a case of single accused---Prosecution, in circumstances had proved
its case against accused beyond any shadow of doubt to sustain conviction of
accused on a capital charge---Appeal against conviction and sentence was
dismissed, Murder Reference was answered in Affirmative and death sentence
awarded to accused was confirmed.

Side Appellant : MUHAMMAD YOUSUF alias AYUBI
----S. 302(b)---appreciation of evidence ---Case was registered after discovery of
dead-body of deceased son of complainant from a canal---Incident was an un-
witnessed occurrence and prosecution's case rested on circumstantial evidence
---Matter was not reported to the police for 16 long days---Recovery of hatchet
and Churri from a "Kacha" room which had no roof , was effected by
Investigating of ficer in violation of provisions of S.103, Cr.P.C.---Was also not
believable that accused would keep blood-stained weapons intact till his arrest,
which was effected after more than a month of registration of case---Recovery
was proved to be planted in order to provide corroboratory evidence --Medical
evidence showed that deceased lost his life due to injuries, which were caused
by sharp-edged weapon, however according to Doctor, time elapsed between
death and post-mortem was 2 to 3 weeks---Medical evidence could not be used
against accused as it provided no clue about the Killer, who caused the injuries---
Prosecution having failed to prove its case against accused, conviction and
sentence recorded against him by the Trial Court, were set aside and accused
was acquitted of all the charges.

Side Appellant : MUHAMMAD ARIF alias MAHI
---S. 302(b)---appreciation of evidence ---Occurrence was un-witnessed and dead
body of deceased when recovered the matter was reported to the police
immediately---evidence of last seen had been furnished by father and mother of
deceased, but dishonest improvement in their evidence was sufficient to discard
their testimony---evidence of extra judicial confession allegedly made by
accused before prosecution witness, whose evidence had - been disproved qua
remaining four accused, was not corroborated by any other evidence ---Recovery
of two Chhuries was made almost one month and sixteen days after the
occurrence---Except a Police Constable, no other person from the locality was
associated during recovery proceedings---During cross-examination, it
transpired that said witness of Chhurries had not stated in his statement made
under S.161, Cr.P.C. that those Chhurries were blood-stained---Even otherwise
delay in the recovery of said Chhurries, was bound to result in disintegration of
blood---Report of Chemical Examiner and that of Serologist, were of no
consequence---Prosecution having failed to prove its. case against accused
beyond any doubt, his conviction and sentence recorded by the Trial Court,
could not be maintained---Impugned judgment was set aside and accused was
acquitted and Set at liberty.
Side Appellant : QADEER AHMAD
---S. 302(b)---appreciation of evidence ---Complainant was real mother of

deceased aged three years while accused was her brother---Question of false
implication, in circumstances, would not arise---Ocular account furnished by real
mother of deceased was fully corroborated by medical evidence ---Complainant
being real mother and also being inmate of the house where occurrence had
taken place, her presence at the spot could not be denied---Real mother would
not leave actual killer of her minor son and falsely implicate her real brother,
there was no reason to disbelieve her testimony---evidence of having seen
accused coming out from the house of complainant with a pistol after
occurrence, furnished by prosecution witness was available---Conviction, in a
murder case, could be based on the testimony of a, single witness, if the court
was satisfied that he was reliable---Court had to see the quality and not the
quantity of evidence ---Report of Fire-arm Expert, with regard to crime empty
and weapon of of fence, was positive, which had lent support to case of
prosecution---Contention that it was a case of single shot and that motive
remained shrouded in mystery, was devoid of force because insufficiency of
motive or motive being shrouded in mystery, the occurrence having taken place
at the spur of moment or that case being of single shot, were no grounds even for
lesser sentence---Prosecution had proved its case successfully against accused
beyond any shadow of doubt---In absence of any mitigating circumstances in
favour of accused for lesser- sentence, conviction and sentence recorded against
accused by the Trial Court, was maintained in toto; death sentence was
confirmed and murder reference was answered in the Affirmative.
Side Appellant : BAKHSHA
---Ss. 302, 324, 379, 109, 148 & 149---appreciation of evidence ---Ocular account
not confidence-inspiring---Medical evidence in conflict with ocular account---
Recovery of crime empties and weapons not established---Allegation against
accused/ appellants was that, in the eventful night, they all armed with rifles
and gun, committed murder of three persons including a female and caused
injuries to two other persons---Motive was alleged to be that 13/14 years prior to
occurrence, complainant's brothers had committed murder of real brother of
accused and due to that grudge triple murder was caused---Trial Court, while
acquitting two co-accused, convicted and sentenced three accused to death---
Accused contended that occurrence took place during dark of the night and
assailant could not be identified by prosecution witnesses; that previous enmity
existed between parties and accused were roped in the case falsely; that plea of
alibi was successfully established by two co-accused and that strong
corroboration was required to warrant conviction of the rest of accused---
Validity---F.I.R. had been recorded with delay after due deliberations---
Prosecution witnesses were seriously cross-examined on the source of light and
all of them gave different versions---Prosecution witnesses tried to make
dishonest improvements about the time of occurrence which led to conclusion
that occurrence took place in the dark of night---Two of the accused who were
attributed firing at deceased woman and an injured eye-witness, had successfully
established their plea of alibi before Trial Court---Statements of prosecution
witnesses could be relied upon against remaining accused in presence of reliable
strong and independent corroborative evidence which was lacking in the case---
Motive alleged by prosecution was based on suspicion due to which accused
were roped in the case---Medical evidence supported the case of prosecution to
the extent that deceased and witnesses received injuries with fire-arm weapons
and not beyond that---Eyewitnesses had alleged that injuries to deceased were
caused by rifle alone but instead of any bullet, a pellet was recovered from dead
body which aspect belied prosecution case---Recovery of crime empties was not
established by prosecution---No crime weapon was recovered from one of the
accused and gun recovered from another accused was never sent to Forensic
Science Laboratory---Recovery of a rifle at the instance of one of the accused
could not be used against him as no empty was recovered or sent to Forensic
Science Laboratory, hence, it could not be said with certainty that rifle was used
during the occurrence--Prosecution case was not free from doubt---
Accused/appellants were acquitted of all charges---Appeal was allowed.

Side Appellant : NAZIR AHMAD
---S. 302(b)---appreciation of evidence ---Complainant and all prosecution

witnesses not only were inter se related, but were also related to deceased---
Occurrence had taken place at the time when daylight was not available---
Enmity existed between deceased and accused, evidence furnished by related
and per chance witnesses needed deeper scrutiny, especially when they
contradicted each other on material points---Matter was reported to police after
delay of 4-1/2 hours, not ,at the police station, but at a chowk/crossing where
per chance the police of ficer was available, whereas police station was at a
distance of only two miles from place of occurrence---Prosecution had failed to
explain said delay in reporting the matter to the police---F.I.R. not reported at the
police station, was surrounded by inherent doubt that it was recorded by the
police of ficer after visiting the spot and due deliberation---Complainant and
prosecution witness had also made dishonest improvements while specifying the
weapons of of fence and in recovery of empties---One of the prosecution
witnesses had stated that he had not witnessed the occurrence and that he came
to know later that he was cited as eye-witness in the case---Prosecution witness
had also given two contradictory statements---No reliance could be placed on
statement of said witness---Medical evidence supported prosecution case only to
the extent that deceased lost his life due to fire-arm injuries, but it did not lead to
killer---Empties recovered from the spot and the weapons were sent to Forensic
Science Laboratory and according to its report empties were not found to have
been fired from recovered weapons---Report of said Laboratory was in favour of
accused, who claimed that it was un-witnessed occurrence and they were roped
in the case due to existing enmity---Prosecution case being not free from doubt
against accused, judgment passed by the Trial Court against accused was set
aside---Accused was acquitted of all charges and was released.

Side Appellant : NAUBAHAR alias BAHARU
----Ss. 302 & 34---Criminal Procedure Code (V of 1898), S.342---appreciation of

evidence ---Ocular account was fully supported by medical evidence ---Question
as to incriminating evidence was not put to accused while recording his
statement under S.342, Cr. P. C. ---Effect---Allegation against accused/appellant
was that he along with co-accused, who had raised Lalkara, committed murder
of deceased with their respective weapons---Motive behind occurrence as stated
in F.I.R. was that hot words had been exchanged between parties several times
over theft of a bull--Accused/appellant was arrested about seven months after
occurrence---Co-accused having died before commencement of trial, Trial Court
convicted accused/appellant and sentenced him to death---Accused contended
that it was an un-witnessed occurrence; that motive as alleged in F.I.R. led to
conclusion that complainant party had grudge against accused and that
abscondence of accused was not judicially proved---Validity---Promptly lodged
F.I.R. ruled out fabrication in story of F.I.R.---Independent prosecution witness
having no enmity or ill-will against accused had corroborated statement of
complainant on all material points---Intrinsic value of incriminating evidence
furnished by these witnesses could not be shaken during cross-examination---
Ocular account was fully supported by medical evidence ---Deceased had lost
his life due to injuries caused by accused/appellant---Motive as set down in
F.I.R. was admitted by accused---Prosecution in order to prove abscondence of
accused produced police constable whose statement remained unchallenged
which meant that statement was admitted as true by defence side---Such
evidence of abscondence, however, could not be used against accused as Trial
Court did not put question about abscondence when statement of accused was
recorded under S.342 Cr.P.C., hence, accused was not given chance to explain
factum of abscondence---Prosecution had proved its case against accused beyond
doubt---Appeal was dismissed.

Side Appellant : GHULAM QASIM
---S.302/34---appreciation of evidence -Medical evidence in conflict with ocular
account--- Supplementary statement---Delayed dispatch of crime empty to
Forensic Science Laboratory---Effect---Allegation against accused/ appellant was
that he being servant of deceased committed her murder in the night time with
fire gun shot and hatchet blows---Accused was convicted and sentenced to. death
by Trial Court--Accused contended that ocular account was in conflict with
medical evidence ; that occurrence was not witnessed by anybody and that F.I.R.
was recorded with delay---Validity---Medical evidence revealed that deceased
had received three injuries on her person, two of which were caused by a sharp-
edged weapon whereas third was caused by fire-arm but injuries caused by
sharp-edged weapon were not mentioned in F.I.R. which led to conclusion that it
was an un-witnessed occurrence--Injuries caused by sharp-edged weapon were
mentioned in supplementary statement of complainant which could not be
equated with F.I.R.---Supplementary statements are mostly recorded in order to
fill lacuna in prosecution case or to add number of accused---Supplementary
statement of complainant in the present case was recorded by Investigating of
ficer after examination of deceased---Motive was not proved as there was
contradiction in statements of witnesses about harvesting season of crop which
was allegedly misappropriated by accused/appellant---Eye-witnesses stated that
accused had fled from the spot along with hatchet and gun but both weapons
were recovered from Chaff-room of deceased---No independent witness of
recovery of weapons was produced by prosecution---Crime empties which were
recovered from spot before recovery of gun were not sent to Forensic Science
Laboratory rather the same were despatched to Laboratory along with gun after
its recovery---F.I.R. did not mention that accused was holding a' double barrel
gun---Factum of hatchet was never mentioned in F.I.R. and in any case there was
no reason for assailant to use two weapons to cause death of deceased---
Prosecution case was replete with doubts---Accused was acquitted of all
charges---Appeal was allowed.
Side Appellant : AMAN ULLAH
---Ss.302(b) & 302(c)---appreciation of evidence ---Sentence, reduction in---

Incident was a case of two versions, as accused had taken a specific plea of grave
and sudden provocation---Both prosecution witnesses were not only closely
related to deceased, but were also inimical towards accused---Statements of said
interested witnesses were not plausible and both of them had made dishonest
improvements during trial and were duly confronted with their earlier
statements---Case was recorded after due deliberations---Defence plea taken by
accused was more plausible and was borne out from circumstances of the case---
Accused having acted under grave and sudden provocation, his conviction was
altered under S.302(c), P.P.C. and as he had spent eight years in jail, his sentence
was reduced to the period already served out by him which would meet the ends
of justice---Accused was released from jail, in circumstances.
Side Appellant : IMTIAZ
---S.302(b)/34---Criminal Procedure Code (V of 1898), S.345---appreciation of

evidence ---Legal heirs of one of the deceased having entered into compromise
with accused, appeal of accused to the extent of said deceased and murder
reference was decided by Division Bench of the High Court on the basis of
compromise---Case was that of promptly lodged F.I.R. occurrence having taken
place in broad-daylight---F.I.R. revealed that accused was armed with
Kalashnikov while co-accused (Proclaimed of fender) was also armed with
Kalashnikov---Both of them while sharing their common intention committed
murder of two innocent persons---For the murder of one of deceased persons
accused was awarded death sentence, but he having entered into compromise
with legal heirs of said deceased, on the basis of compromise Division Bench of
High Court had acquitted him to the extent of the said deceased---Accused was
awarded imprisonment for life for the murder of other accused---Accused who
was proclaimed of fender, was subsequently arrested---Such fact had gone
against accused---Section 34, P.P.C. was fully applicable in the case as he along
with his co-accused since proclaimed of fender, had committed the murder of
two innocent persons---No leniency could be shown towards accused---
Conviction and sentence of imprisonment for life awarded to him was
maintained in toto.
Side Appellant : NOOR MUHAMMAD
----Ss.302, 324, 325, 337-A(ii) & 34---appreciation of evidence ---Sentence,

reduction in---Ocular account supported by medical and circumstantial evidence
---Case of accused at par with co-accused---Quantum of sentence---
Determination of ---Accused/appellant along with co-accused, both armed with
fire-arms, entered house of complainant and committed murder of his brother
and injured a female on account of domestic dispute---One of the accused was
apprehended on the spot along with his pistol---Motive as alleged in F.I.R. was
that deceased, who was cousin of wife of accused tried to settle dispute between
the spouses and favoured wife of accused and due to that grudge deceased was
murdered---Trial Court, while passing conviction, sentenced both
accused/appellants to death and life imprisonment respectively---Co-accused
was acquitted on basis of compromise---Accused contended; that witnesses were
inimical towards them and no independent witness was produced during trial;
that recovery evidence was of no consequence as pistol allegedly belonging to
one of the accused was handed over to police of ficer by complainant and it did
not contain any live bullet or any empty and that case of accused who was
sentenced to death was at par with co-accused who was sentenced to life
imprisonment---Validity---Complainant and injured female witness appeared
before the Court in support of prosecution case---Both the witnesses were
inmates of the house and were natural witnesses---Statements of witnesses were
consistent, coherent, natural and trustworthy which were supported by medical
evidence and corroborated by circumstances like apprehension of one of the
accused on the spot and registration of case without delay---Eye-witnesses had
no previous enmity or ill-will against accused to involve them falsely in the.
case---Trial Court had rightly believed direct evidence and ignored discrepancies
in medical evidence ---Plea taken by accused that an inmate of the house had
fired at him which accidentally hit deceased was absurd because he was unable
to name any inmate of the house who had fired at him---No other motive existed
except the one narrated in F.I.R.'--Prosecution had proved its case against
accused beyond doubt---Accused/appellant had also been convicted for of fence
under Ss.324 & 337-A(ii), P.P.C. on allegation that he caused fire-arm injury on
the head of injured female witness but this allegation was contradicted by
medical evidence ---Lady doctor who had examined the injured witness had
opined that injury was caused by blunt weapon which could not be attributed to
accused/appellant---Judgment of Trial Court to that extent was set aside---As to
quantum of sentence, it was found that case of accused/appellant was at par
with co-accused who was sentenced to life imprisonment by Trial Court, and
was treated leniently---Conviction of accused was maintained under Ss. 302 (b)
& 34 but his death sentence was reduced to life imprisonment---Appeal was
partly allowed.

Side Appellant : MUHAMMAD AZEEM alias JEEJA
---Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art.47---appreciation of
evidence ---Ocular account supported by medical evidence ---Statement of
complainant recorded in absence of absconding accused---Relevancy of such
statement to subsequent trial---Scope---Accused/appellant, who was son of sister
of complainant's wife, along with two co-accused, committed murder of
complainant's son with 'Churri' blows---Motive as alleged in F.I.R. was that
deceased had exposed accused/appellant before arbitrators about beating given
by accused to his (accused) brother's wife on a domestic dispute---Trial Court
while acquitting co-accused convicted and sentenced accused to death---Accused
contended that he was roped in the case due to political rivalry; that prosecution
witnesses were disbelieved qua acquitted accused; that prosecution failed to
prove motive; that recovery of blood-stained Churri was not worth credence due
to its delayed dispatch to Chemical Examiner and that abscondence of accused
was not properly proved during trial---Validity---Eye-witnesses, real brother of
deceased and a neighbour had no previous enmity or ill-will against accused so
as to involve him in a false case---Statements of eye-witnesses were very
consistent, coherent, natural and a trustworthy account of occurrence and the
same were supported and corroborated by statement of complainant---Statement
of complainant though was recorded in absence of the accused but the same was
subjected to cross-examination by acquitted accused---Such statement was duly
transferred to the record of the present case and was relevant under Art.47 of
Qanun-e-Shahadat, 1984, as complainant had died before his statement could be
recorded against accused/appellant---Motive as to political rivalry between the
parties was not established---Ocular account was fully supported by medical
evidence and corroborated by statement of a witness as to convening of
Punchayat and motive---Nonappearance of lady who was injured by accused
prior to occurrence and her husband (real brother of accused) before Court was
not to benefit accused at all as real brother had refused to depose against
accused---Both husband and wife were though given up as having been won
over by accused but they also did not appear as defence witnesses---Recovery of
blood-stained clothes and Churri was proved as witness of recovery was from
public who had no enmity with accused and his credibility could not be
shaken---Police witness, however, did not mention that he was handed over
blood-stained clothes, therefore, that part of evidence might be excluded---
Statement of accused recorded under S.342, Cr. P. C. revealed that factum of
abscondence was proved to the hilt and there was no need for prosecution to
produce constable who was handed over warrants of arrest---Acquittal of co-
accused was not to benefit appellant in any manner as both of them were empty-
handed and they were assigned role of holding deceased---Prosecution had
successfully proved its case against accused/appellant---Appeal was dismissed
and death sentence was confirmed.
Side Appellant : MULTAN BEVERAGES CO.
Side Opponent : ABDUL RAHMAN
---O.XXXVII, Rr.1, 2 & 3---Suit for recovery of amount on basis of Promissory

Note---Trial Court dismissed suit on the ground that Promissory Note on basis of
which suit was filed by the plaintiff was not duly attested---Non-suiting of
appellant on sole ground that Promissory Note was not duly attested, was not
justified, when execution of Promissory Note otherwise was proved by evidence
on record and defendant had himself conceded that Promissory Note being a
negotiable instrument did not require attestation---Impugned order was set aside
by the High Court and case was remanded to the Trial Court to decide suit of
plaintiff after proper appreciation of oral as well as documentary evidence of
the parties.
Side Appellant : WALAYAT
--S. 302 (b)---appreciation of evidence ---Benefit of doubt---Both eye-witnesses

produced by prosecution were related, inimical and chance witnesses, who had
failed to receive any independent corroboration or support---Complainant could
not explain as to how and why he was present at the scene of crime at the
relevant time---F.I.R. had maintained that prosecution witness had not himself
witnessed any firing by accused party and that upon seeing him approaching the
place of occurrence, complainant party had left the spot---Both eye-witnesses
produced by prosecution proved to be false who had absolutely no regard for the
truth---Both complainant and prosecution witness had made significant
improvements before the Trial Court regarding their attribution against different
accused persons and they had been duly confronted in that regard with their
earlier statements made before the police---Complainant and prosecution
witnesses in their statements made before the police as well as before the Trial
Court had failed to specify any seat of injury of any of deceased or of injured
victims---Both said eye-witnesses had already been disbelieved by the Trial
Court qua four co-accused of accused against whom those eye-witnesses had
levelled allegations of effective participation in the main occurrence---
Complainant was a convicted murderer and he had already served a sentence of
life imprisonment prior to present incident---One of prosecution witnesses had
also remained involved in. many cases of murder---Said witnesses, in
circumstances, could not be believed without looking for independent
corroboration which was non-existent in the case---Guns and rifles allegedly
were recovered from accused, but no crime-empty had been recovered from the
place of occurrence, so as to connect recovered fire-arms with alleged of fences---
Said recovery from accused was legally inconsequential, especially when no
corroboration to ocular account was forthcoming---Not only F.I.R. was lodged
with considerable delay' but post-mortem of dead body of deceased, was also
conducted with delay---Such delay was generally suggestive of a real possibility
regarding time having been utilised by complainant party and the police in
procuring and planting eye-witnesses and in cooking up a story of prosecution---
Prosecution had utterly failed to prove its case against accused beyond
reasonable doubt---Conviction and sentence recorded by the Trial Court against
accused, were set aside and they were acquitted of the charge by extending
benefit of doubt to them and were released.

Side Appellant : ASGHAR MASIH
--S. 302---appreciation of evidence ---Being a broad-daylight occurrence, their
was no question of substitution.---Delay, if any, in lodging F.I.R., was reasonably
explained---Even otherwise delay, per se, in lodging F.I.R., was not fatal to
prosecution case---All prosecution witnesses had fully supported the version of
the prosecution---Said witnesses had no deep rooted enmity or any grouse to
falsely depose against accused---Accused got recovered a pistol along with crime
empty which was lying in it---Report of Fire-arm Expert was positive in nature
according to which said empty, recovered along with the weapon, was fired
from the said pistol---Ocular account in the case was corroborated by medical
evidence coupled with its further support from the factum of recovery and
positive report of the Fire-arm Expert---Weapon (fire-arm) used, place of injury
and damage caused, had suggested that no mitigating circumstance was.
available in favour of accused to award him lesser sentence---Prosecution had
,proved its case against accused beyond any shadow of doubt to sustain
conviction on a capital charge---Conviction and sentence awarded to accused by
the Trial Court, were maintained in toto---Murder Reference was answered in the
affirmative, while death sentence awarded to accused, was confirmed.

Side Appellant : MUHAMMAD ZUBAIR
----Ss. 302, 394, 396 & 412---Anti-Terrorism Act (XXVII of 1997), S. 7(h)-
appreciation of evidence ---Incident was a Bank dacoity and a broad daylight
occurrence---Description of accused was given in F.I.R.---Accused and his co-
accused were apprehended immediately after occurrence---Car on which
accused came in the Bank was also recovered from an abandoned place near the
place of occurrence---Repeater gun belonging to deceased Security Guard of the
Bank along with a .30-bore pistol was recovered from co-accused and a .30-bore
pistol was also recovered from accused---Eye-witnesses, especially the injured
prosecution witness had no animus whatsoever against accused---One Security
Guard of the Bank was murdered by accused and another one had sustained
injuries---Accused had been identified in identification parade---Independent
witnesses in the case had no animus or motive whatsoever to falsely implicate
accused-Death sentence awarded to accused was confirmed and' Murder
Reference, was answered in the affirmative.
Side Appellant : SHAHID MAHMOOD
--S. 302---appreciation of evidence ---Only fatal injury on the person of deceased

was with .12 bore gun according to post-mortem report and not with the rifle as
was mentioned in the F.I.R.---Connivance with the police, in order to fill up the
lacuna in the prosecution case was apparent for not only the weapon of of fence
was charged, but also the name of accused was changed---Fatal shot, as per F.I.R.
was attributed Jo co-accused, but before the Trial Court, it was stated that in fact
accused was armed with .12 bore gun who had fired a shot---Incident being a
broad daylight occurrence, there should not have been any mistake, especially
when parties were nearly related to each other---Glaring conflict was found
between the ocular account and medical evidence , coupled with factum of
charging accused who fired shot on deceased---Case of prosecution against
accused was of doubtful nature and benefit of doubt always would go to
accused and not to prosecution---Allowing appeal, conviction and sentence
recorded by the Trial Court against accused, were set aside and accused was
acquitted of all charges against him and he was released.

Side Appellant : IRFAN AHMED
---Ss. 420, 468, 471, 409 & 109---National Accountability Ordinance (XVIII of
1999), Ss.9(a)(vi), 10 & 15---appreciation of evidence ---Confessional statement of
accused was recorded by Senior Special Magistrate, when accused was in
custody of FIA---Accused was not informed that after recording his statement, he
would be handed over to FIA---Confessional statement was recorded after Court
hours and was exculpatory in nature---Accused included the name of firm in
question in the tender inquiry for a healthy competition, its approval, however
was given by senior of ficials and accused claimed himself to be innocent---
Confessional statement of accused being relied upon by prosecution very
heavily, was also not put to accused in their statements under S.342, Cr.P.C.---
Conviction could not be based on material not put to accused in his statement
under S.342, Cr.P.C.---Accused was not asked whether he had made confessional
statement voluntarily, before the Magistrate---Statement of accused was not put
to co-accused, that the accused had made a confessional statement involving him
in the of fence and what was his explanation---Prosecution, in circumstances had
failed to bring home guilt to accused---Report of the Court of Inquiry showed
names of six highups besides accused persons, but Reference to National
Accountability Bureau was sent only against accused leaving said highups, high
and dry, without any rhyme or reason---Only evidence against co-accused was
the statement of accused recorded under S.164, Cr.P. C. and said statement was
exculpatory in nature and it could not be read against other accused---Said co-
accused, in circumstances, could not be convicted only on that piece of evidence
---No other evidence was available on record connecting said co-accused with
the crime---Prosecution, in circumstances had badly failed to prove the charge
against accused beyond reasonable doubt---Conviction of accused recorded
against them by the Trial Court, was set aside and they were released from jail.

Side Appellant : ALLAH DITTA
---S. 302(b)---appreciation of evidence ---Sentence, reduction in---F.I.R. was
lodged promptly, which led to the logical conclusion that prosecution witnesses
were present at the time of occurrence---Occurrence having taken place when
daylight was available, question of non-identification did not arise---Both
prosecution witnesses had no serious enmity or ill-will against accused so as to
involve him .in a false case; they both had given trustworthy account of the
occurrence and had corroborated each other on all material points and their
statements were fully supported by medical evidence and corroborated by the
recovery of licensed rifle of accused---Motive, which itself had been admitted by
accused had successfully been proved by prosecution---Prosecution in
circumstances had successfully proved its case beyond doubt against accused---
No previous ill-will or enmity existed between deceased and accused and
accused did not repeat the fire---Case, in circumstances was not of extreme
penalty---Maintaining conviction of accused, his sentence of death was reduced
to imprisonment for life with benefit of S.382-B, Cr. P. C.

Side Appellant : IBRAR HUSSAIN alias BARA
---Ss. 302(b), 34, 324 & 337-D---Criminal Procedure Code (V of 1898), S.161---
appreciation of evidence ---Delay in lodging of F.I.R. explained---Eye-witnesses
closely related inter se and with deceased---Medical evidence in line with ocular
account---Contradiction in statements of injured witness one recorded under
S.161, Cr. P. C. and other made before Trial Court---Single shot and quantum of
sentence---No crime empty recovered---Report of Forensic Science Laboratory
not available on record---Accused/appellant allegedly committed murder of
complainant's maternal nephew with a single fire of shotgun while absconding
co-accused (real brother of accused) caused injury with pistol shot to other
nephew of complainant in the same occurrence---Motive as alleged in F.I.R. was
that deceased and his brother had restrained accused party and co-accused from
standing in the street owing to which grudge deceased was murdered and his
brother was injured---Trial Court convicted and sentenced accused to death and
imprisonment of various descriptions--Accused/appellant contended; that there
was delay of four hours in lodging F.I.R.; that medical evidence was in
contradiction with ocular account; that there were contradictions in statements of
prosecution witnesses; that motive was not proved; that recovery of weapon
from accused was inconsequential and that accused had not repeated the shot,
thus, it was not a case of capital punishment---Validity---Delay in lodging of
F.I.R. had been properly explained by complainant as naturally the first
preference of complainant was to save the life 'of injured and to take them to the
hospital---Incident allegedly took place due to the reason that deceased had
restrained accused persons from standing in street in front of his house and there
was nothing on record to disbelieve motive set up in F.I.R., which even otherwise
was admitted by defence during cross-examination on complainant---Doctor had
noted down that injured' was brought to hospital by complainant as such
presence of complainant on the spot could not be doubted---Site-plan" proved
presence of injured witness on the spot which fact was further stamped by
receiving of fire-arm injury by him in the occurrence---Bout eye-witnesses, no
doubt, were related inter se and with deceased closely but close relationship
itself was not sufficient to term them as interested witnesses---Both eye-witnesses
had no previous enmity to falsely involve accused and his co-accused in present
case by letting of f the real culprit---Perusal of statements of eye-witnesses
revealed that ocular account was trustworthy and was sufficient to connect
accused with commission of crime even without any independent
corroboration---Medical evidence fully supported ocular account---Doctor had
noted down the fire-arm injuries on the persons of deceased and injured witness
on the same locale and mere opinion of doctor that probable time between
injuries and death of deceased was 4 to 6 hours was not sufficient to discard
prosecution version---Contradiction in statements of injured witness recorded
under S.161, Cr. P. C. and one made before Trial Court as to his presence at the
time of incident was not sufficient to discard the evidence as statement in trial
had' been recorded 3 years after the occurrence---Recovery of crime weapon
from accused was though inconsequential as no empty was recovered from the
spot and there was no report of Forensic Science Laboratory, but this alone was
not sufficient to exonerate accused from commission of alleged crime---Accused
used to stand in front of house of deceased and being restrained from doing so
by deceased, it could not be said that deceased had provoked accused and
contributed to his own death---Accused had acted in a cruel manner while firing
in the chest of deceased and killing him on a petty matter---Intention of accused
could be gathered from act committed by them---Accused did not deserve
leniency and Trial Court was quite justified in awarding death penalty to
accused---Mere making of single shot, non-availability of motive and taking
place of occurrence at the spur of moment were not mitigating circumstances for
award of lesser sentence---Appeal was dismissed.

Side Appellant : FIDA HUSSAIN
----Ss. 302, 307, 148 & 149---appreciation of evidence ---Benefit of doubt---Crime

empties were taken into possession from the spot, but none of those matched
with the fire-arm recovered at the instance of accused persons---Long standing
enmity existed between complainant and accused---No recovery had been
effected at the instance of accused---Presence of one of accused persons who had
been acquitted, being not free from doubt, his conviction could not be
maintained---Appeal to extent of said accused was accepted extending him
benefit of doubt and impugned judgment to his extent was set aside and he was
acquitted of all the charges---Appeal to the extent of remaining two accused had
become infructuous as they had already served out their sentence.

Side Appellant : SHARAFAT ALI
---S. 302(b)/34---Criminal Procedure Code (V of 1898), S.173---appreciation of

evidence ---Private complaint---Delay in lodging of F.I.R. and conducting of
postmortem---Motive not established---Eye-witnesses related inter se and with
deceased---Ocular account not supported by medical evidence ---Effect---
Accused appellants, along with co-accused, allegedly committed murder of
deceased with fire-arm shots---Motive behind the occurrence was alleged to be
that accused persons wanted to get the land released which complainant party
had taken on least and due to this grudge accused committee murder of
deceased---Complainant being dissatisfied with the conduct of investigation
lodged private complaint---Trial Court, while acquitting co-accused, convicted
and sentenced accused/appellants to death---Accused contended that both eye-
witnesses were interested witnesses being related inter se and with deceased
closely; that during investigation statements of eye-witnesses had been
discarded and new set of accused was introduced against whom report under
S.173, Cr. P. C. was submitted in the Court to face trial; that private complaint
had been filed with mala fide intention; that there were contradictions in the
statements of both the eye-witnesses; that medical evidence did not support
ocular account; that no crime empty was recovered from the spot and that
motive had not been proved against accused---Validity---Delay of five hours in
lodging of F.I.R. and then conducting of post-mortem on the next day in the
evening was sufficient to belie prosecution story---No importance could be given
to the names of witnesses and accused mentioned therein as delay in conducting
post-mortem examination on the dead body of deceased was sufficient to draw
an inference that police papers were not prepared and due to that reason post-
mortem was conducted with delay---Prosecution story was belied during
investigation and complainant was constrained to file private complaint---Eye-
witnesses, no doubt, were related inter se and with deceased closely but they had
no previous enmity with accused and they could not be termed as interested
witnesses---Such alone, however, was not sufficient to hold that they had stated
the gospel truth---Both eye-witnesses appeared to have made improvement
regarding the motive alleged in the case as according to prosecution version
narrated in F.I.R., accused persons wanted to get the land - released which had
been taken on lease by them---F.I.R. did not show that said land was owned by
accused or any body else--
Side Appellant : EJAZ HUSSAIN alias JADOO
--S. 302(b)---appreciation of evidence ---Sentence, reduction in---Accused had

been proved to have committed the murder of deceased, but accused had
pleaded that he had committed murder because of provocation as he had
suspicion that deceased had illicit relations with his wife---Mitigating
circumstances existing in favour of accused, while maintaining his conviction
under S.302(b), P.P.C., his sentence of death was converted to imprisonment for
life---Order of the Trial Court under S.544-A, Cr. P. C. was also set aside as in
such like cases compensation could not be awarded.
Side Appellant : IKRAM UL HAQ
----S. 7(e)-Penal Code (XLV of 1860), S.365-A---appreciation of evidence

---Complainant had no animus against accused to falsely implicate him; he was
resident of same District from where victim was recovered---Case against the
accused having fully been proved beyond any shadow of doubt, conviction and
sentence recorded against him by the Trial Court, were maintained in toto---
Death sentence awarded to accused was confirmed and Murder Reference to his
extent was replied in affirmative---Other accused was not proved to be present at
the spot and it had also come on record that he had been searching the victim
along with the complainant--Said accused was neighbourer of complainant---
Said co-accused was granted benefit of doubt and conviction and sentence
recorded against him was set aside and he was released---Case against all other
co-accused was of doubtful nature because abductee was not recovered from
them---Conviction and sentence recorded against them by the Trial Court, were
set aside and they were also released---Case against the driver of the car used
having not been pressed by the complainant, conviction and sentence recorded
against him by the Trial Court, were also set aside and he was released.
Side Appellant : AKHTAR MUHAMMAD
---S. 302 (b)---appreciation of evidence ---Counsel for accused had not seriously
challenged conviction and prayed only for conversion of conviction of accused
from S.302(b) to S.302(c), P.P.C.---Sufficient material was available on record in
the form of ocular evidence and evidence of injured prosecution witnesses to
maintain conviction of accused---Incident was a day time occurrence and venue
and time of occurrence had not been challenged by accused---Ocular evidence
had got ample support from medical evidence ---Part attributed to accused of
causing hatchet blow to deceased, was fully corroborated by evidence of Doctor
who medically examined the deceased---No ground was available for discarding
prosecution version which was supported by injured witnesses---Accused with
all of his co-accused were declared proclaimed of fenders during investigation---
Accused remained fugitive from law for a period of 6-1/2 months which had
also corroborated prosecution version---Apart from motive, no serious enmity
existed between the parties---Witnesses could not be termed as interested
witnesses---Prosecution, in circumstances had proved case against accused
beyond any shadow of doubt--Accused had caused hatchet blow on the head of
deceased which coupled with the other injuries caused death of deceased---of
fence was committed on a petty issue---Contention of counsel for accused that
accused had not come on the spot with intention to commit Qatl-e-Amd, was
repelled as intention of accused to commit some of fence was always gathered
from attending circumstances of each case, and intention to commit crime could
be developed even at the spur of moment---Accused along with his co-accused
having committed intentional murder of deceased he was rightly convicted
under S.302(b), P.P.C., conviction and sentences awarded to accused under
S.302(b), P.P.C., called for no interference---Conviction and sentence awarded to
accused could not be converted from S.302(b) to S.302(c), P.P.C., as prayed by
counsel for the accused.

Appreciation of Evidence

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Appreciation of Evidence

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Citation Name : 2007 PCRLJ 721 SHARIAT-COURT-AZAD-KASHMIR

Side Appellant : IMRAN

Citation Name : 2007 PCRLJ 721 SHARIAT-COURT-AZAD-KASHMIR

Citation Name : 2007 PCRLJ 721 SHARIAT-COURT-AZAD-KASHMIR

Citation Name : 2007 PCRLJ 133 SHARIAT-COURT-AZAD-KASHMIR

Citation Name : 2007 SCMR 761 SUPREME-COURT

Citation Name : 2007 SCMR 729 SUPREME-COURT

Citation Name : 2007 SCMR 707 SUPREME-COURT

Citation Name : 2007 SCMR 687 SUPREME-COURT

Citation Name : 2007 SCMR 661 SUPREME-COURT

Citation Name : 2007 SCMR 589 SUPREME-COURT

Citation Name : 2007 SCMR 569 SUPREME-COURT

Citation Name : 2007 SCMR 518 SUPREME-COURT

Citation Name : 2007 SCMR 486 SUPREME-COURT

Citation Name : 2007 SCMR 482 SUPREME-COURT

Citation Name : 2007 SCMR 473 SUPREME-COURT

Citation Name : 2007 SCMR 473 SUPREME-COURT

Citation Name : 2007 SCMR 404 SUPREME-COURT

Citation Name : 2007 SCMR 246 SUPREME-COURT

Citation Name : 2007 SCMR 211 SUPREME-COURT

Citation Name : 2007 SCMR 112 SUPREME-COURT

Citation Name : 2007 SCMR 85 SUPREME-COURT

Citation Name : 2007 SCMR 49 SUPREME-COURT

Citation Name : 2007 SCMR 49 SUPREME-COURT

Citation Name : 2007 PLD 26 SUPREME-COURT

Citation Name : 2007 PLD 249 SUPREME-COURT

Citation Name : 2007 PLD 9 SUPREME-COURT

Citation Name : 2007 PCRLJ 41 QUETTA-HIGH-COURT-BALOCHISTAN

Citation Name : 2007 PLD 12 QUETTA-HIGH-COURT-BALOCHISTAN

Citation Name : 2007 PLD 7 QUETTA-HIGH-COURT-BALOCHISTAN

Citation Name : 2007 PLD 31 PESHAWAR-HIGH-COURT-NWFP

Citation Name : 2007 PLD 31 PESHAWAR-HIGH-COURT-NWFP

Citation Name : 2007 YLR 904 PESHAWAR-HIGH-COURT-NWFP

Citation Name : 2007 YLR 904 PESHAWAR-HIGH-COURT-NWFP

---S. 9---Control of Narcotic Substances (Government Analysts) Rules, 2001, Rr.4

Citation Name : 2007 YLR 904 PESHAWAR-HIGH-COURT-NWFP

----S. 9(c)---appreciation of evidence ---Sentence, reduction in---Where

---S. 9(c)---appreciation of evidence ---Samples certificate and destruction

Citation Name : 2007 YLR 657 PESHAWAR-HIGH-COURT-NWFP

Citation Name : 2007 YLR 650 PESHAWAR-HIGH-COURT-NWFP

----S. 324/34---appreciation of evidence ---Charge against accused was to have

Citation Name : 2007 YLR 650 PESHAWAR-HIGH-COURT-NWFP

---S.324/34---appreciation of evidence ---Daylight occurrence---Medical

Citation Name : 2007 YLR 456 PESHAWAR-HIGH-COURT-NWFP

---S. 13---Surrender of Illicit Arms Act (XXI of 1991), S.7---Criminal Procedure

Citation Name : 2007 YLR 448 PESHAWAR-HIGH-COURT-NWFP

---S. 13---Explosive Substances Act (VI of 1908), S.5---appreciation of evidence

---S. 324---appreciation of evidence ---Sentence, reduction in---Prosecution

---Ss. 9(c), 25, 29 & 48---Criminal Procedure Code (V of 1898), S.103---

---Ss. 324 & 337(d)/34---appreciation of evidence ---Ocular account corroborated

--Ss. 324, 337-F(v) & 34---appreciation of evidence ---Benefit of doubt---Rule of

Citation Name : 2007 PCRLJ 533 PESHAWAR-HIGH-COURT-NWFP

---S. 302(b)-appreciation of evidence ---None of the three eye-witnesses, who

Citation Name : 2007 PCRLJ 483 PESHAWAR-HIGH-COURT-NWFP

----S. 9(c)---appreciation of evidence ---Benefit of doubt---No credible evidence

----S. 9(c)---appreciation of evidence ---Prosecution primarily was supposed to

---S. 13----appreciation of evidence ---Police party consisting of senior police of

---Ss. 9 & 25-appreciation of evidence ---Petition for enhancement of sentence---

---Ss. 302(b) & 458---appreciation of evidence ---Benefit of doubt---Duty of

---Ss. 302(b) & 458---appreciation of evidence ---Benefit of doubt---Sole

Citation Name : 2007 MLD 501 PESHAWAR-HIGH-COURT-NWFP

---Ss. 9(c) & 29---Control of Narcotic Substances (Government Analysts) Rules,

---Ss. 9(c), 25 & 29---appreciation of evidence ---Sentence, reduction in---