' Judgment of reversal, passed by learned Additional. District Judge, Burewala on 18-2-1999, has been challenged through this civil revision, by Mst. Haleema Bibi, plaintiff-petitioner, who had got a decree in her favour, from the learned Civil Judge, Burewala on 13-11-1997.
2. The facts, as found from the record and narrated by the learned counsel are that Dil Muhammad was married to one Mst. Safia Bibi, from whom respondents Nos.l to 3 were born. Aforesaid Dil Muhammad contracted a second-, marriage with Mst. Haleema, who was a lady having a landed property. A gift-deed was got executed allegedly from Mst. Haleema Bibi by Dil Muhammad in his favour through Deed No.657, registered on 27-4-1986, as with regard the lands measuring 82, Kanals 14 Marlas, situated in Chak No.469/EB, Tehsil Burewala. Mst. Haleema Bibi challenged the validity of this registered gift-deed dated 27-4-1986, which was entered into the Revenue Record through Mutation No.171 dated 24-6-1986. She narrated in her suit that she had not appeared before the Sub-Registrar and had never got registered or gifted away the property to Dil Muhammad. She also asserted that she was an illiterate villager, Pardanasheen lady and the deed is the result of fabrication and forgery. Giving the reasons of having not gifted away, it was stated by her in her plaint that she could not gift out that property to Dil Muhammad, as she was issueless and it could not be presumed from her that she would alienate her last source of income to Dil Muhammad, which was consequently to devolve upon the issues of his second wife (step-sons and step-daughters).
3. The suit was contested. The issues were framed and the parties had adduced their evidence.
After appreciation and evaluation of the evidence, learned Civil Judge decreed the suit in favour of Mst. Haleema Bibi on 13-11-1997. Aggrieved from that judgment and decree, heirs of Dil Muhammad, who were defendants in the suit, filed appeal before the learned Additional District Judge, Burewala, which was accepted and the suit was dismissed on 18-2-'1999. Hence, this revision petition.
4. It has been submitted by the learned counsel for the petitioner that the impugned judgment and decree of the learned Additional District Judge is liable to be reversed because learned Judge has failed to appreciate and apply the correct law, which was provided in case of an illiterate villager woman. The evidence must be of cogent and satisfactory nature in case of transaction being executed with that lady. There must be evidence showing conscious application of mind for the execution and for transacting or getting a transaction of benefit from the aforesaid lady. As the burden to prove the correctness/validity of the gift-deed was heavily placed upon the shoulders of respondents/defendants, they had to bring credible evidence in which they had failed. D.W.6, Ch. Ghulam Mustafa Ghumman, Advocate, who had identified the alleged executant at the time of registration of the disputed gift, had stated that the woman was clad in a Burqa and the contents were never narrated to that woman while Malik Khuda Bakhsh, Sub-Registrar, D.W.7 had admitted in his statement that he had not known the lady personally. D.W.8, Abdul Haq, the marginal witness of Exh.D.1 (gift-deed) had not been able to state as to why the gift was made. D.W.1, Syed Hatam Hussain Gillani, scribe was also not believable as he had not known Dil Muhammad personally, while Mst. Haleema Bibi was allegedly known to him personally which statement was incredible.
(Wife was known and not of her husband. Strange was the sentence). The statement of D.W.4 has also been challenged by the learned counsel by stating that the statement was unbelievable because a lady cannot, who go and fetch the witnesses to witness the making of her gift. So, the learned counsel has prayed that the judgment and decree, passed by learned Additional District Judge be reversed.
5. On the other hand, learned counsel for the respondents has replied that D.W.1, Syed Hatam Hussain Gillani had categorically stated that Mst. Haleema Bibi was known to her personally while D.W.2, Abdullah Saeed Anwar, defendant No.2 had also supported the gift transaction and had proved the transaction of gift. There was no specific denial of thumb-impression having not been affixed upon the gift-deed in dispute. The judgment of the learned Additional District Judge was passed upon sound reasonings.
He has also stated that marriage of Mst. Haleema Bibi with Dil Muhammad was the result of love affair, so Mst. Haleema Bibi had alienated the lands in dispute to him. The plaintiff had not produced any other witness except her own statement, which was got recorded by her as P.W.1. The plaintiff was a wise lady and had admitted that she could compare between good and bad in affairs. The possession having been changed in the Revenue Record, the judgment of the learned Additional District Judge requires to be upheld.
6. After considering the arguments of both the learned counsel and from the perusal of the record, I have found that it is an admitted fact that Mst. Haleema Bibi was a lady, who was villager, Pardaob serving and illiterate also. In such cases, the law is well-settled, that not only the transaction has to be proved with cogent evidence but that it was entered by her with conscious application of mind and through independent advice. Other factors, such as reaso.n to make gift are also to be kept in view. The disputed land was the only asset of the aforesaid lady. It was not expected from her to gift away that land to a husband, having another wife and the children from that other wife. I cannot subscribe to the view that due to love affair, the lady had contracted marriage with Dil Muhammad and had gifted away the property to him. There may be a love affair, which has also not been proved on the record, yet it could not be presumed that the lady had gifted away all her lands to that alleged donee. Such a lady could not lose all her assets, after the culmination of that alleged love affair into marriage. Independent advice was imparted to Mst. Haleema Bibi was to be proved on the record by the alleged beneficiary. Jannat Bibi v. Sikandar Ali and others PLD 1990 SC 642; Ch. Nasrullah Khan v. Muhammad Raman and others 1991 CLC 104; Muhammad Hashim and others v. Arshad Javed (Irshad Javaid) and another 1991 MLD 986; Mst. Saleema Bibi v. Sardar Khan and 4 others 1991 MLD 2359; Lal Shahadat Khan and another v. Mst. Gul Marjana 1989 CLC 803; Mst.
Hussain Bibi v. Zafarullah Khan and another PLD 1967 Lahore 744 and Amirzada Khan and another v.
Itbar Khan and others 2001 SCMR 609. The above noted decisions and the evidence, which I have noted in the arguments of the learned counsel for the petitioner, fully prove that the gift document was not proved up to the hilt. The arguments of the learned counsel for the respondents that the possession was changed and was with the respondents, so, the gift was proved, cannot be accepted in the instant case, because the petitioner wilt, was a villager, parda-observing lady was not managing the property herself. It was naturally her husband, the male, who was holding its possession on her behalf, therefore, the change of entries even if made on the basis of disputed registered gift-deed in the Revenue Record, were the consequences of that deed. There was no independent proof of delivery of possession. The possession of husband who was living with that wife, would be presumed to be that of his wife. As regards solitary statement of plaintiff, the argument is fallacious, because the plaintiff had only to controvert, negate and refute the execution of the alleged gift-deed, while it Was for the respondents to prove the execution and attestation of the deed of gift and transaction. The plaintiff was not required by any law to bring more witnesses necessarily and mandatorily, as the burden of proof after the statement of Mst. Haleema Bibi had shifted towards the defendants/respondents.
The judgment of the learned Additional District Judee is not maintainable in the eye of law, which has proceeded to reverse the judgment of the learned Civil Judge on presumptions and conjectures not warranted by any law and due appreciation of facts/evidence of the case.
Therefore, by accepting this civil revision, judgment of the learned Civil Judge having been found based on sound and cogent reasons is restored and upheld while the impugned judgment of the learned Additional District Judge is set aside, with no order as to cost.
Revision accepted.
2005 YLR 2314 [Lahore] Before ljaz Ahmad Chaudhry and Nasim Sabir Ch., JJ MUHAMMAD ASHFAQ alias GOSHI---Petitioner versus THE STATE ---Respondent Criminal Miscellaneous No.2 and Criminal Appeal No.903 of 2004, decided on 29th June, 2004.
Criminal Procedure Code (V of 1898)--- ----S.426---Penal Code (XLV of 1860), Ss.3Q2(b) & 452---Suspension of sentence---Role ascribed to applicant was that he raised only Lalkara and had not caused any injury to deceased though he was armed with a rifle---Sentence of applicant was suspended in peculiar circumstances of the case, and he was released on bail. [p. 2315] A Altaf _Ibrahim Qureshi for Petitioner.
Masood Sabir for the State.
Date of hearing: 29th June, 2004.
' Through this application under section 426, Cr.P.C., Muhammad Ashfaq alias Goshi, petitioner seeks suspension of sentence as vide judgment dated 9-12-2003, passed by learned Additional Sessions Judge, Burewala, he has been found guilty under section 302(b), P.P.C. And sentenced to imprisonment for life with further direction to pay a sum of Rs.1,00,000 to legal heirs of the deceased as compensation or in default thereof to further undergo rigorous imprisonment for four months. He was also found guilty under section 452, P.P.C. And sentenced to rigorous imprisonment for seven years with a fine of Rs.25,000 or in default thereof to further undergo rigorous imprisonment for two months. Both the sentences were ordered to run concurrently.
2. Learned counsel appearing on behalf of the petitioner contends that in the F.I.R. It was alleged by the complainant that though the petitioner was armed with a rifle and entered into his house, but did not cause any injury to the deceased. Also contends that during investigation police found all the five accused innocent and then a private complaint was filed by the complainant, in which same role was ascribed to the petitioner. Prays that as he has not caused any injury to the deceased, his sentence may be suspended.
3. Learned counsel for the State opposes this application on the ground that conviction was passed six months ago and the petitioner has been found guilty under sections 302/452, P.P.C.
4: We have heard learned counsel for the parties. As the role ascribed to the petitioner is that he raised only Lalkara and had not caused any injury to the deceased, though he was armed with a rifle, in the peculiar circumstances of the case, we are inclined to suspend his sentence..
5. This application is accordingly accepted and petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.1.00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of trial Court.
Application accepted.
2005 YLR 2315 [Peshawar] Before ljaz-ul-Hassan-khan, J THE STATE through Advocate-General, N. -W . F. P. ---Appellant versus FAZALUR REHMAN---Respondent Acquittal Appeal No.89 of 1999, decided on 27th May, 2005.
Criminal Procedure Code (V of 1898)--- ----5.417---Penal Code (XLV of 1860), S.324---Appeal against acquittal---To convict a person on capital charge, evidence should be of high quality and good standard which was not available in the present case---Prosecution primarily was supposed to establish guilt against accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction---Judgment returned in case by Trial- Court was a fair judgment based on proper, just and legal appreciation Hof evidence on record--- Appellant had failed to show that impugned judgment of acquittal of accused was fanciful or based on no evidence-Evidence A of prosecution had been fairly and properly appreciated by Trial Court to secure the ends of justice---State/prosecution was nor able to point out any important piece of evidence which could form the basli.i of conviction-Accused though stood directly nominated in promptly lodged report for the commission of crime, but prosecution had failed to produce evidence which could connect accused with commission of crime--- Standards of assessing evidence in appeal against acquittal were quite different from thOse laid down for appeal against conviction-Appraisal of evidence, in appeal against conviction, was done strictly and in appeal against acquittal same rigid methOd of appraisement was not applied as there was already finding of acquittal given by Trial Court after proper analysis of evidence on record---Interference in, acquittal appeal, was made Only when it appeared that there had been gross misreading of evidence which amounted to miscarriage of justice---Ordinarily scope of appeal against acquittal of accused was considerably narrow and limited-Courts while dealing with appeal against acquittal, interfered only in such cases where judgment of acquittal was based on misreading, non-appraisal of evidence or was speculative, artificial, arbitrary and foolish on its face---Solitary statement of complainant, in absence of corroborative evidence, had rightly been discarded and excluded out of consideration in case by Trial Court-Judgment of acquittal was balanced and -well-reasoned and enough evidence for conviction of accused was not available in the case---After acquittal accused enjoyed double presumption of being innocent as the first presumption was awarded to him by law while second presumption was created by impugned judgment of acquittal---To do away with both said presumptions, prosecution was required fool-proof case, which was not the position in the present case---Impugned judgment of acquittal passed by Trial Court was upheld and appeal against acquittal was dismissed. IPp.2317, 2318 A, B, C & D Muhammad Usman and 2 others v. The State 1992 SCMR 498; The State v.
Muhammad Raja and 3 others PLD 2004 Pesh. 1; Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and Hameed-ur-Rehman v. Said Rehman and 5 others 2005 PCr.LJ 53 ref. Muhammad Adil Khan for the State.
Zakir Hayat for Respondent. Date of hearing: 20th May, 2005.
' Through this Acquittal Appeal No.89 of 1998 the State has called in question the acquittal judgment dated 17-11-1997 passed by learned Additional Sessions Judge, Kohat in Sessions case No.76 of 1995 under section 324, P.P.C. Arising out of F.I.R. No. 244 dated 14-6-1994 of Police Station Cantt., Kohat.
2. Tne prosecution story in brief is, that on the night of occurrence complainant Imran Shah, employed at PAF Petrol Pump, was on the way to his house on bicycle after finishing his duty. When he reached near Janana Mills at 9-15 p.m., accused-respondent Fazlur Rehman already present there, started firing on the complainant with pistol, as a result whereof the complainant was hit on the thigh. The complainant boarded a flying coach and managed to reach the hospital.
3. A.S.-I., Qaiser Khan (P.W.8) on receipt of information regarding the occurrence reached the hospital, recorded the report Exh.P.A./1 at the instance of the complainant and prepared injury sheet Exh.P.M./1 of the injured and then proceeded to the spot. He prepared site-plan Exh.P.B. And recovered two empties of .30 bore P.7 from the spot vide recovery memo. Exh.P.C./2 in the presence of marginal witnesses. On the following day he arrested the accused-respondent from his house and recovered from his possession a .30 bore pistol with a kash, having 19 rounds and one spare magazine, and a licence copy vide memo. Exh.P.C./1. The crime empties and the pistol in question were sent to Fire-arms Expert Peshawar. After completion of investigation complete challan was submitted in Court.
4. A formal charge was framed against the accused-respondent to which he pleaded not guilty and claimed trial.
5. The prosecution with the view to establish the guilt of the accused produced 8 witnesses in all complainant Imran Shah fully supported the prosecution version and charged the accused- respondent for the offence in question. Dr. Shahid Sardar (P.W.5) Liaqat Memorial Hospital, Kohat, on 14-6-1993 at 10-00 p.m. Examined complainant and found the following:--
(1) Fire-arm entry wound diameter right thigh upper aspect, lateral side 6" below groin.
(2) Fire-arm exit wound 1/2" diameter right thigh upper aspect, medial side at the level of entry wound.
(3) Fire-arm grazing wound upper surface of glans penis."
6. Considering the material on record, . Learntd trial Judge came to the conclusion that prosecution has not been able to prove its case against the accused beyond any shadow of doubt and acquitted him by extending benefit of doubt.
7. Towards the end of the trial, statement of accused was recorded under section 342, Cr.P.C.. By putting all prosecution evidence brought on record against him who denied the charge and claimed his innocence and in answer to the question as to why the prosecution witnesses have deposed against him, he replied as under:-- "None of the P.Ws. Have brought any solid charge against me because no witness has appeared who could connect me with the commission of the crime and the solitary eyewitness has himself admitted that he had already grievance against me because of strained relations of her sister with me and therefore, his testimony becomes very doubtful. The police officials though are of very weak nature but they are always interested in the success of their case so I submit that there is no witness against me who can be relied upon."
8. Mr. Muhammad Adil Advocate, appearing on behalf of the State, vehemently contended that overwhelming credible and trustworthy evidence has been adduced by the prosecution in the shape of the deposition of the complainant, medical evidence and recovery of crime empties from the spot, which conclusively proves the guilt of the accused-respondent but the learned trial Judge erroneously disbelieved and discarded the testimony of the complainant by drawing inferences which are neither probable nor acceptable, which has resulted in complete failure of justice.
9. Mr. Zakir Hayat Advocate, for the accused-respondent, on the other hand, supported the impugned judgment whole heartedly and stressed that reasons advanced in support of acquittal are sound, cogent and based upon evidence on record and these are not at all flimsy and whimsical.
10. To convict a person on capital charge, evidence should be of high quality and good standard which is not available in this case. The prosecution primarily is supposed to establish guilt against the accused beyond shadow of reasonable doubt by bringing trustworthy, convincing and coherent evidence for the purpose of awarding conviction. The judgment returned by the trial Court is a fair judgment based on proper, just and legal appreciation of the evidence on record.
Appellant has failed to show that the impugned judgment of acquittal is fanciful or based on no evidence. The evidence of the prosecution has been fairly and properly appreciated to secure the ends of justice. Learned counsel for the State has argued that judgment in question was delivered without fully appreciating the evidence of the prosecution. He added that it was a fit case for conviction of the accused. When inquired as to what portion of the material evidence was not appreciated correctly by the trial Court. Learned counsel was not able to point out any important piece of the evidence which could form the basis of conviction. No doubt, it is true that accused- respondent stands directly nominated in the promptly lodged report for the commission of crime but it is equally true that the prosecution has failed to produce evidence which could connect accused-respondent with the commission of crime. It needs no reiteration that standards of assessing evidence in appeal against acquittal are quite different from those laid down for appeal against conviction. There is a marked difference between appraisement of evidence in the appeal against conviction and in the appeal against acquittal. In the appeal against conviction, appraisal of evidence is done strictly and in the appeal against acquittal the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the trial Court after proper analysis of evidence on record. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. The ordinary scope of appeal against acquittal of accused-respondent is considerably narrow and limited. It is well settled now that the superior Courts while dealing with the appeal against acquittal interfere only in such cases where the judgment of acquittal is based on misreading, non-appraisal of evidence or is speculative, artificial, arbitrary and foolish on its face. Muhammad Usman and 2 others v. The State 1992 SCMR 498; The State v. Muhammad Raja and 3 others PLD 2004 Peshawar 1; Muhammad Ali v. Muhammad Yaqoob and 3 others 1998 SCMR 1814; Ghulam Sikandar and another v. Mamaraz Khan and others PLD 1985 SC 11; State through Advocate-General Sindh, Karachi v. Farman Hussain and others PLD 1995 SC 1 and Hameed-ur-Rehman v. Said Rehman and 5 others 2005 PCr.LJ 53.
11. The crime in question is stated to have taken place in the month of Ramzan at 9-15 p.m. On the main crossing near Janana Mills Kohat. The complainant claims to have succeeded to reach the hospital in a flying coach. Neither driver of the coach nor conductor nor anybody else has been produced in support of the assertion. The solitary statement of the complainant, in absence of corroborative evidence has rightly been discarded and excluded out of consideration by the learned trial Judge.
12. The judgment of acquittal is balanced and well-reasoned and I hold that enough evidence for conviction of accused-respondent was not available in the case. After the acquittal, accused- respondent enjoys double presumptions of being innocent as the first presumption is awarded to him by the law of the land while the second presumption is created by the impugned judgment of acquittal. To do away with both these presumptions prosecution is required a fool proof case, which is not in hand.
For the foregoing reasons, I see no force in the State appeal and dismiss the same. The judgment of acquittal dated 17-11-1997 is upheld.
' The accused-respondent is discharged of the bail bond executed by him in pursuant to the order dated 22-6-1998 of this Court.
Appeal dismissed.
2005 V L R 2319 [Lahore] Before Muhammad Akhtar Shabbir, J MUHAMMAD RAMZAN---Petitioner versus ROOPI alias Roop Shah and 2 others---Respondents Writ Petition No.4363. Of 2005, decided on 17th June, 2005.
(a) Civil Procedure Code (V of 1908)- ----0. XVI, R. I & S.115---List of witnesses---Production of---Trial. Court under 0.XVI, R. I, C.P.C. Was empowered to allow a party to file a list of witnesses provided good cause for omission in that respect, was shown---Trial Court had not passed a speaking order while allowing application filed under 0.XVI, C. P. C. And had only mentioned that issue in the case had been framed, witnesses had been summoned and that case revolved around an agreement and that plaintiff had to prove that document---Defendant had strongly opposed said application, but same was accepted by Trial Court to meet the ends of justice subject to costs---No reasons for allowing application had been assigned by Trial Court--Revision against said order of Trial Court; was rightly accepted by the revisiortal Court. [p. 2320] A Mrs. Rafiqa Iqbal v. Muhammad All Hyder 1984 CLC 2886; Abdul Malik v.
Muhammad Urfan and another 1989 CLC 2363 and S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933 ref.
(b) Constitution of Pakistan (1973)- 199---Constitutional jurisdiction--Scope---Petitioner had assailed revisional order of Court below in Constitutional petition-Order passed by a Court in exercise of its revisional jurisdiction, could be challenged through Constitutional petition provided impugned order was perverse, illegal or without lawful authority-Revisional Court had been conferred with the powers either to allow revision petition or to dismiss or reject the same---In absence of any illegality or jurisdictional defect in the impugned order of Court, below, same could not he interfered With in Constitutional petition. [p. 2320] B Muhammad Tariq Bashir for Petitioner.
Rana Muhammad Arif for Respondents Nos.1 and 2.
' The brief resume of the case is that the plaintiff-present petitioner filed a suit for specific performance of contract on 26-5-2000, details of the properties have been narrated in the plaint.
The suit was contested by the respondents by filing written statement, denying the averments of the plaint. From the controversies appearing on the pleadings of the parties, the Court framed the various issues. The objection was raised on 5-7-2004 by the respondents/defendants that the plaintiff had not filed list of witnesses. On this objection, the plaintiff-petitioner filed an application under Order XVI, rule 1, C.P.C. And the reply of the same was filed. The Court after hearing the arguments, accepted the application vide order dated 6-12-2000, with costs of Rs.3,000.
2. The said order was assailed by the respondents through revision petition before the learned Additional District Judge, Khushab, which was dismissed as withdrawn vide, order dated 27-1-2005 and the respondents again filed revision petition on 3-2-2005, the learned revisional Court accepted the said revision petition, vide order dated 2-3-2005.
3. The learned counsel for the petitioner contended that the subsequent revision petition was not maintainable as the Court permission to file a fresh one was not granted by the Court.
4. On the other hand, the learned counsel for the contesting respondents, vehemently, opposed the arguments of the petitioner's counsel.
5. I have heard the learned counsel for the parties and perused the record. On 27-1-2005, before the revisional Court the learned counsel for the revisionpetitioner/respondent made a statement as under:-- {{URDU TEXT}}
6. In view of the said statement of the learned counsel for the revision-petitioner the Court dismissed the revision petition as withdrawn. The subsequent/second revision petition was filed by the respondents within the limitation, the respondents have made the statement for withdrawal of the revision petition to file a fresh one. Impliedly, though the Court has not clearly passed the order granting the permission to the revision petitioner to file afresh one. The granting of permission is within the discretion of the Court or permission may be expressed or may be implied from the circumstances. It can be granted on oral submission also. Reference in this context is made to Mrs. Rafiqa Iqbal v. Muhammad Ali Hyder 1984 CLC 2886; Abdul Malik v. Muhammad Urfan and another 1989 CLC 2363 and S. Nisar Ali v. Feroze Din Rana and another 1969 SCMR 933.
7. The learned trial Court under Order XVI, rule 1, C.P.C. Is empowered to allow to file a list of witnesses provided good cause for the omissions are shown. The learned trial Court has not passed a speaking order while allowing the application filed by the petitioner under Order XVI, rule 1, C.P.C. And only mentioned that the issue in the case has been framed and the witnesses have been summoned, the case revolves around an agreement and the plaintiff has to prove this document. The learned counsel for the respondents has strongly opposed this application but the same is accepted to meet the ends of justice subject to costs of Rs.300. No reasons for allowing the application has been assigned by the learned trial Court. The petitioner has assailed the revisional order of the Court through the writ petition, the order passed by a Court in exercise of its revisional jurisdiction, it can be challenged through writ petition provided that impugned order is perverse, illegal or without lawful authority. The Revisional Court has conferred with the powers either to allow the revision petition or to dismiss or reject the same. The learned counsel for the petitioner when confronted with this situation, could not point out any illegality or jurisdictional defect in the impugned order.
8. For the foregoing reasons, this writ petition being devoid of force, is dismissed.
Petition dismissed.
2005 YLR 2321 [Lahore] Before Muhammad Muzammal Khan and Syed Shabbar Raza Rizvi, JJ SHERZADA KHAN---Appellant versus THE STATE---Respondent Criminal Appeal No.2002 of 2003, heard on 14th June, 2005.
(a) Control of Narcotic Substances Act (XXV of 1997)--- ----Ss. 34, 35 & 36---S.R.O. 596(1)/97 dated 7-8-1997---Recovery of huge quantity of heroin from active possession of accused---Chemical Examiner's report--Scope---Provision of S.34, Control of Narcotic Substances Act, 1997 only directs that any institute or narcotic testing search laboratory can be notified by the Federal Government to be a Federal Narcotic Test Laboratory and it does not talk of setting up of any distinct/independent laboratory for this purpose---Chief Chemical Examiner, Government of Punjab, Lahore has been notified for performing Chemical Tests in terms of S.34, Control of Narcotic Substances Act, 1997---Chemical Examiner's report, in the present case, was duly signed by the Assistant Chemical Examiner, Biochemist/Chemist and Chief Chemical Examiner and protocol tests were performed by Biochemist result of which had been given on the reverse of the report---Presumption of regularity and performance of acts in accordance with provisions of statute applicable was attached to the acts done by the State functi,pnaries in due discharge of their duties, thus the contention that provisions of Ss. 35/36 of the Act were not complied with by the Analyst/Chemical Examiner was repelled specially when the accused did not bring any evidence on the file, to show that the prerequisites of said provisions were not fulfilled by the Chemical Examiner-- Accused could have summoned the Chemical Examiner in his defence or could have moved to the Trial Court for summoning him as a Court witness to substantiate the argument raised for the first time in appeal---Accused also failed to cross-examine the prosecution witness, who had transmitted the sample parcels to the office of the Chemical Examiner and deposed that the sample parcels were delivered intact; in the absence of cross-examination regarding the prerequisites of Ss. 35 & 36 of the Act, presumption was that these were fulfilled and there was nothing bad with the report---High Court, in circumstances, declined to interfere with the judgment of Trial Court in appeal. [pp. 2324,- 23251 A, B & D
(b) Control of Narcotic Substances Act (XXV of 1997)--- ----Ss. 6 & 9---Sentence, reduction in---Mitigating circumstance---Accused claimed himself to be an ailing person of advanced age---Huge quantity of heroin was recovered from the active possession of the accused, who was not of an advanced age to create a mitigating circumstance in support of the prayer made, his claimed heart ailment was also not proved on record, besides all this both the defence witnesses produced by the accused did not utter a word about ailing age of the accused and their self-conflicting statements did not persuade the High Court to reduce the sentence of the accused any more, as he was already dealt with leniency by the Trial Court when he was sentenced only to 10 years' R.I., with a fine of Rs.300,000 instead of sentencing him to life imprisonment---High Court declined the prayer for reduction of sentence in circumstances. 2324] C Munir Ahmed Bhatti for Appellant. Date of hearing: 14th June, 2005.
' MUHAMMAD MUZAMMAL KHAN, J.---This criminal appeal has been directed against the judgment dated 4-10-2003, whereby the learned Judge, Special Court C.N.S., Lahore convicted the appellant under section 9-C Control of Narcotic Substances Act, 1997 and sentenced him to R.I. For 10 years with a fine *of Rs.3,00,000 or in default of its payment to undergo further S.I. For one year. Benefit of section 382-B, Cr.P.C. Was, however, awarded to him.
2. Charge against the appellant, as per F.I.R. Exh.P.E., are that having received information about involvement of Sherzada Khan appellant in selling heroin in the garb of business at Sartaj Paan Shop, Pulli Stop, Green Town, Lahore, Brigadier Ashfaqur Rashid, Force Commander; ANF, constituted a raiding party on 5-8-2002 under the supervision of Syed Sijjil Haider, Assistant Director, Anti-Narcotic Force. At 4-00 p.m. The raiding party reached the shop and the person present on the counter disclosed his name as Sherzada Khan son of Kashkol Khan (appellant), who was arrested and on interrogation, he led to the recovery of three `Thelies' of heroin lying in a plastic "Tora" under the counter. On weighing each 'Theli' was weighed 950 grams and total recovery came to 2.850 Kg. After separating 5 grams out of each 'Theli', three parcels of samples and three of the remaining heroin were sealed and were secured along with the plastic "Tora".
Thereafter the instant, case was registered against the appellant. Muhammad Afzal Asim, Inspector, ANF, investigated the case and finding the appellant guilty and challaned him.
3. The learned trial Judge on receipt of challan framed charge against the appellant on 9-12-2002 under section 9-C Control of Narcotic Substances Act, 1997, to which he pleaded not guilty and claimed trial.
4. Prosecution in order to prove guilt of the appellant produced four witnesses. P.W.1, Abdul Ghafoor, Constable, had transmitted the sample parcels to the office of Chemical Examiner on 7-8-2002, intact. P.W.2, Rao Zahid Mehmood, Inspector was a member of the raiding party, who also witnessed the recovery vide Memo. Exh.P.A., which he testified before the trial Court.
' P.W.3, Muhammad Afzal Asim, Inspector being Investigating Officer materially supported the prosecution case by proving all the acts done by him like recording of statements of the witnesses under section 161, Cr:P.C. Inspection of place of occurrence, preparation of site-plan Exh.P.C. And having challaned the appellant finding him guilty. P.W.4, Muhammad Sarwar A.S.-I./Moharrir deposed that on 5-8-2002, on receipt of complaint sent by Muhammad Afzal Asim, Inspector/S.H.O., he chalked out the formal F.I.R. Without any addition or omission and received six sealed parcels for safe custody in the Malkhana along with empty "Tora" and on 7-8-2002 dispatched three sealed parcels of sample to the office of Chemical Examiner through Abdul Ghafoor constable. Prosecution gave up Rana Rashid Mehmood P.W. Being unnecessary and produced in evidence report of the Chemical Examiner as Exh.P.D.
5. Appellant was examined under section 342, Cr.P.C. Wherein he claimed to be innocent by asserting that the case has been falsely registered against him. He did not opt to record his statement on oath under section 340(2), Cr.P.C. He, however, produced D.W.1, Liaqat Ali and D.W.2, Azmat Ali in his defence, both of whom deposed that they were doing business in the neighbourhood of the appellant and that the appellant was a gentleman and previously there was no case against him. The learned trial Judge after completing all the formalities of law, convicted the appellant to .10 years' R.I. With fine, as noted above. Appellant has challenged his conviction through the instant appeal, which was admitted to regular hearing and after completion of record, has now been placed for final determination.
6. Learned counsel for the appellant contended that the mainstay of impugned judgment being 'report of the Chemical Examiner, the same was not only unauthorized but also lacked report about protocol test applied by the Analyst. AccOrding to him, the Chemical Examiner preparing report Exh.P.D. Was not notified under section 34 of Control of Narcotic Substances Act, 1997, thus the same was void. It was further submitted that the Chemical Examiner was not Analyst, whose report was not on prescribed form and while preparing report provisions of sections 35/36 of Control of Narcotic Substances Act, 1997 were not complied, thus the report Exh.P.D. Deserves to be excluded from consideration and in this eventuality appellant has to be acquitted from the charge. It was further asserted that the alleged recovery of contraband material was not made from active possession/custody of the appellant, who being of the age of sixty years with heart-ailment, was awarded excessive sentence and in view of this lawful mitigating circumstance in case this Court did not rely on the contradictions in the statements of the P. Ws. To acquit him, his sentence may be suitably reduced.
7. Appeal was opposed by refuting arguments of the appellant and supporting the impugned judgment, with the assertion that recovery of huge quantity of heroin from the appellant was proved beyond any shadow of doubt. It was further submitted that the recovery of heroin was effected from possession of the appellant and in case his defence plea of recovery be accepted as correct even in that case the shop being in his exclusive possession, he cannot be acquitted of the charge. It was also argued on behalf of the State that the Chemical Examiner is duly notified and he competently performed tke test, which cannot be challenged by the appellant. It was also argued that appellant never raised any such objection during trial of the case and did not object to the report when the same was tendered in evidence, hence he cannot raise this objection at such a belated stage.
8. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the entire record. All the four P. Ws. Produced by the prosecution have supported recovery of 2.850 Kg. Heroin lying in a plastic "Tora" under the counter of the appellant over his shop, had no malice/enmity against him.
' Incriminating statements of the prosecution witnesses on oath left no room that the recovered contraband was not owned/possessed by the appellant. Such a huge quantity cannot be planted and that too without any enmity of the appellant with any member of the raiding party. Similarly, contradictions pointed out by the learned counsel for the appellant are of minor nature and those cannot be considered to vitiate the trial or to make the recovery doubtful.
9: As regards report of the Chemical Examiner, section 34 of the Control of Narcotic Substances Act, 1997 only directs that any institute or narcotic testing search laboratory can be notified by the Federal Government to be a Federal Narcotics Test Laboratory and it does not talk of setting up of any distinct/independent laboratory for this purpose. Since the Chief Chemical Examiner, Government of Punjab, Lahore had been notified for performing chemical tests in terms of section 34 of the Act (ibid), there is nothing bad with the report Exh.P.D. As a matter of fact, notification in this behalf dated 7-8-1997 escaped notice of learned counsel for the appellant which reads as under:-- "S.R.O. 596(I)/97--In exercise of the powers conferred by section 34 of Control of Narcotic Substances Act (XXV of 1997), the Federal Government is pleased to notify the Pakistan Council of Scientific and Industrial Research Laboratories (PCSIR), Lahore, National Institute of Health Laboratory, Islamabad, Sindh Laboratory of Chemical Analysis Karachi, PCSIR Laboratory, Karachi, PCSIR Laboratory Peshawar and Central Drug Laboratory, 7th Central Street Defence Housing Authority, Karachi and all Narcotics Testing Laboratories set up by the Provincial Governments to be the Federal Narcotics Testing Laboratories for the purposes of the said Act."
10. Chemical Examiner Report Exh.P.D. Was duly signed by the Assistant Chemical Examiner, Biochemist/Chemist and Chief Chemical Examiner and protocol tests were performed by Biochemist, result of which has been given on the reverse of the report on 12-8-2002. Under law, a presumption of regularity and performance of acts in accordance with provisions of statute applicable is attached to the acts done by State functionaries in due discharge of their duties, thus we are not ready to accept the argument that provisions of sections 35/36 of the Act were not complied by the Analyst/Chemical Examiner especially when the appellant did not bring any evidence on the file, to show that the prerequisites of these provisions of law were not fulfilled by the Chemical Examiner. Appellant could have summoned the Chemical Examiner in his defence or could have moved to the trial Court for summoning him as a Court witness to substantiate the argument raised for the first time in appeal, but this exercise was not undertaken. Appellant also did not cross-examine P.W.1, Abdul Ghafoor, who had transmitted the sample parcels to the office of Chemical Examiner on 7-8-2002 and deposed that the sample parcels were delivered intact. In absence of cross-examination regarding prerequisites of sections 35/36 of the Act (ibid) presumption is that those were fulfilled in the case in hand.
11. As regards reduction in the sentence awarded by the trial Court, we have no ambiguity that heroin was recovered from active possession of the appellant, who is not of an advanced age to create a mitigating circumstance in support of the prayer made. His claimed heart-ailment is also not proved on the file. Besides all this both the defence witnesses produced by the appellant did not utter a single word about ailing age of the appellant and their self-conflicting statements do not persuade us to reduce the sentence of the appellant any more, as he was already dealt with leniency by the trial Court when he was sentenced only to 10 years' R.I. With a fine of Rs.3,00,000 instead of sentencing him to life imprisonment.
12. For the reasons noted above, the learned trial Judge correctly concluded the trial through his judgment impugned, which being in consonance with the evidence on the file, deserves no interference on this appeal, which being devoid of any merit, is dismissed.
Appeal dismissed.
2005 YLR 2325 [Peshawar] Before Ijaz-ul-Hassan Khan, J MUHAMMAD YOUSAF---Petitioner versus ABDUL WAKEEL and another---Respondents Quashment Petition No.244 of 2004, decided on 30th May, 2005.
(a) Criminal Procedure Code (V of 1898)--- ----S.561-A---Inherent jurisdiction of High Court, exercise of---High Court under S.561-A, Cr.P.C.
Had inherent powers to make such orders as could he necessary to give effect to any order or to prevent abuse of process of any Court or otherwise to secure ends of justice---Said power being extraordinary in nature was to be exercised sparingly-Criterion for exercise of power under S.561-A, Cr.P.C. Was that injustice complained of should be clear, grave in nature and tangible. [p. 2327] A
(b) Criminal Procedure Code (V of 1898)--- ----Ss.435 & 439---Revisional jurisdiction, exercise of---Revisional Court had jurisdiction to correct the error resulting from non-reading, misreading of evidence or where the Courts below failed to exercise jurisdiction vested in them.[p. 2327] B
(c) Criminal Procedure Code (V of 1898)--- ----Ss. 516-A & 561-A---Penal Code (XLV of 1860), Ss.406, 419, 420, 468, 471 & 381---Superdari--- Quashing of order---Petitioner had sought quashing of orders of Courts below whereby car in question was given on Superdari to respondent---Petitioner, who claimed to have purchased motor car in question, had given same to a person on rent and said person sold same through forgery to respondent---Petitioner lodged F.I.R. At police station under Ss.406, 419, 420, 468, 471 & 381, P.P. C. And car was recovered by police---Both petitioner and respondent filed applications for grant of car on Superdari---Appellate Court, in revision, rejected application of petitioner and accepted application of respondent and Superdari of car was granted to respondent---Petitioner had filed petition under S. 561-A for quashing of said order of Appellate Court---Civil suit regarding car in question was pending adjudication in Civil Court---Both Magistrate and Appellate Court had proceeded on wrong premises in rejecting application of petitioner and giving car in question on Superdari to respondent---In view of material on record and report of petitioner made to police, scales definitely tilted in favour of petitioner and he was entitled grant of Superdari of car in question--- High Court accepting petition quashed impugned order with direction that custody of car in question be delivered to petitioner on Superdari. 2327] C & D Qaiser Shafeeq Vohra v. The State 1991 MLD 2590; Mehboob Alam and 3 others v. The State PLD 1996 Kar. 144 and Ghulam Shabir Lashari v.
The State 1991 PCr.LJ 28'7 Kar. Ref. Gohar Rehman Khattak for Petitioner.
Imran Gul for Respondents. Muhammad Adil for the State. Date of hearing: 20th May, 2005.
'Petitioner Muhammad Yousaf, running rent a car business, has filed instant petition under section 561-A of the Code of Criminal Procedure (Act V of 1898), seeking quashment of the order of learned Additional Sessions Judge, Peshawar dated 16-9-2004, whereby Motor Car bearing Registration No.D-1789, Model 1989, Peshawar was given on Superdari to Abdul Wakeel respondent No.1 herein.
The petitioner claiming to have purchased the Motor Car in-question from one Javed son of Malik Durre Aman Khan, resident of Mansehra, in consideration of Rs.4,50,000 prays that the impugned order be quashed and possession of the vehicle be returned to him, being its lawful owner and bona fide purchaser. According to the petitioner, the car was given by him to Anwar Khan son of Haji Aqil Khan, resident of Gor Ghatri Peshawar on rent on 4-5-1999 for Rs.35,000 per month. The said Anwar Khan sold the vehicle through forgery to respondent No.l. On getting the knowledge that the car is present at Abbottabad, the petitioner lodged F.I.R. No.457 dated 14-8-1999 under sections 406/419/420/468/ 471/381, P.P.C. At Police Station, West Cantt., Peshawar. The car was recovered by the local police from a Bargain Centre namely Amin Bargain Centre, Peshawar. The petitioner moved an application before learned Judicial Magistrate, Peshawar for the grant of vehicle on Superdari. Respondent No.1 also made similar application. Both the applications were rejected by learned Judicial Magistrate, Peshawar by order dated 29-5-2004. Feeling aggrieved, revision petitions were filed thereagainst before learned Sessions Judge, Peshawar, which were entrusted to learned Additional Sessions Judge, Peshawar for adjudication. By virtue of the order dated 16-9- 2004 recorded by the learned Additional Sessions Judge, Peshawar, the request of the petitioner was turned down and his revision was dismissed. Superdari of the car was granted to Abdul Wakeel respondent No. 1.
2. Mr. Gohar Rehman Khattak, Advocate for the petitioner forcefully contended that learned trial Court has totally ignored that petitioner is the lawful owner and purchaser of the car in question and respondent No.1 has purchased the car on the basis of fraud and forgery. The learned counsel also maintained that the impugned order has been recorded in haste without application of judicial mind. He relied on Qaiser Shafeeq Vohra v. The State 1991 MLD 2590.
3. Mr. Muhammad Adil, Advocate, appearing on behalf of the State frankly conceded that the impugned order is contrary to the material on record and cannot be allowed to remain intact.
However, Mr. Rahatullah Afridi Advocate, for Abdul Wakeel respondent No.1 submitted that the impugned order has been passed on the basis of material on record and Superdari of the vehicle in question has been granted to respondent No.1 for valid reasons. In order to substantiate the pleas, he placed reliance on Mehboob Alam and 3 others v. The State PLD 1996 Karachi 144.
4. I have heard the arguments of learned counsel for the parties in detail in the light of the material on record.
5: It is true that under section 561-A, Cr.P.C. This Court has inherent powers to make such orders as may be necessary to give effect to any order or to prevent abuse of process of any Court or otherwise to secure the ends of justice. This power being extraordinary in nature, is to be exercised sparingly. The criterion for the exercise of power under this section is that the injustice complained of shall be clear, grave in nature and tangible. There is no cavil to the proposition that the revisional Court has jurisdiction to correct the error resulting from non-reading, misreading of evidence or where the Courts below fail to exercise the jurisdiction vested in them. Undoubtedly, section 516-A, Cr.P.C. Enables a Magistrate to provide for interim custody of property pending the conclusion of the trial. Section 523, Cr.P.C. Provides the procedure by police upon seizure of property taken under section 51, Cr.P.C. Or stolen. A perusal of the record would reveal that the car in question was given by the petitioner to one Anwar Khan son of Haji Aqil Khan, resident of Gor Ghatri Peshawar on rent on 4-5-1999, who sold the same to Wakeel Khan respondent. No.
1. On getting the knowledge that the car in question has been taken to Abbottabad, the petitioner lodged F.I.R. 457 dated 14-8-1999 under sections 406/419/420/ 468/471/381, P.P.C. At Police Station, West Cantt., Peshawar. The car was subsequently recovered by the police from Amin Bargain Centre Peshawar. It may be recalled here that a civil suit regarding the car in question is pending adjudication in the Court of learned Civil Judge, Abbottabad.
6. Be that as it may, without highlighting merits of the case, I find that learned Judicial Magistrate as well as learned Additional Sessions Judge, Peshawar have proceeded on wrong premises to reject the application of the petitioner and give the car in question on Superdari to respondent No. 1 . In view of the material on record and report of the petitioner made to the local police, I feel that the scales definitely tilt in favour of the petitioner and he is entitled for grant of Superdari of the car in question. In view of the matter, I am supported by the observations made in Ghulam Shabir Lashari v. The State 1991 PCr.LJ 287 Karachi.
In the result and for the foregoing reasons, the petition is accepted and the impugned order dated 16-9-2004 is hereby set aside. The custody of the car in question shall, be delivered to the petitioner on Superdari on furnishing a personal bond in the sum of Rs.5,00,000 to the effect that he would not dispose of the said car till further orders passed by competent Court and would produce it before the competent Court, as and when required. The Investigating Officer shall take back the car in question from respondent No.1 and produce the same before learned Judicial Magistrate, Peshawar, who shall deliver the same on Superdari to the petitioner, as stated above.