Summary: Appeal against Conviction- Aginst sentence of life imprisonment offence u/s 302/ 392/ 411/ 34 PPC ASJ- West- Wajid Ali

Summary: It is the case of prosecution that embezzlement amounting to Rs. 6,02,000/- was committed in receipt/collection of OPD, Admissions fees. The respondents were admittedly not posted in Accounts branch, rather respondent Mujahid was employed as Computer Programmer on contract basis while respondents Naseer Khan and Zameer Hussain were appointed as IT Assistants on daily wages. The reappraisal of entire prosecution evidence suggests that the prosecution has miserably failed to prove that the respondents were responsible for collection and deposit of said fees, rather their duties are computer related and not related to accounts. Moreover, none of them is permanent employee of the department and from the available record, it seems that they have been made scapegoat in order to save the skin of actual culprits.

Summary: Sections of law; Section 408 Cr.P.C and section 1 of the Law Reforms Ordinance, 1972 (a) Appeal against sentences of more than four (04) years passed by Magistrate shall lie to High Court in the province of Khyber Pakhtunkhwa.(b) Only those provisions of Law Reforms Ordinance, 1972 are applicable in the province of Khyber Pakhtunkhwa, which have been given extent and operation by the provincial government of this province through a notification issued under section 1 of the Ordinance

Summary: Revenue Officer exercising powers as a revenue court within the contemplation of Kyber Pakhtunkhwa Land Revenue Act, 1967, Specifically relating to power of Civil Court and Criminal Court as in Section 27,81,82,141 and 172 are declared ultra vires of Article 175 of the Constitution of Islamic Republic of Pakistan. All such cases shall stand transferred to ordinary and Criminal Court.

Summary: No doubt, where policy decision of the Government was not ultra vires, the law and policy was well reasoned, rational and self-explained, the High Court, in exercise of judicial review, could not set aside and displace such decision, however, where a decision or recommendations of the Government or of competent authority was not in accordance with law or suffered from mala fide or same was arbitrary, irrational and unreasonable, the High Court could direct the State/Government to act strictly in accordance with law. Mainly there are three grounds upon which an administrative action is subject to control by judicial review. Firstly, illegality which means the decision maker must understand correctly the law that regulate his decision-making power and must give effect to it. Secondly, irrationality, which means, decision is not unreasonable and, thirdly, procedural impropriety but the petition in hand is bereft of any of the grounds. In presence of above enlightenment and illumination, there is no need to further discuss the issue with regard to declaration of said policy making decision as illegal and unconstitutional. Though, the petitioner has alleged discrimination, but has not been able to make out a case of any discrimination under Article 25 of the Constitution as well. 10. Correct, at the time of filing of the constitutional petition, the Tribunal was dysfunctional but, thereafter, not only the Tribunal was constituted, but it is functional now, then the question arises as to whether this constitutional petition is maintainable under Article 199 of the Constitution of the Islamic Republic of Pakistan, 1973, when an ultimate remedies also available to the petitioner under the provisions of Environmental Tribunal in accordance with sub-class (10) of section 22 of the Environmental Protection Act, 2014. The Act also defines aggrieved person as a person whose legal right is violated by any actor or mission or is directly and adversely affected by any other authority in the same manner Environmental Protection Order means an order issued under section 17, and Tribunal has been defined in sub-clause(ggg) of section 2, which means the Khyber Pakhtunkhwa Environmental Tribunal, constituted under Section 21. The impugned Notice was issued under sub-clause (i) of subsection 2 of section 17, which could be challenged in accordance with section 23 of the Act, which reds as;23(1) any person aggrieved by any order or direction of the agency under any provisions of this Act, and rules made there under may prefer an appeal to the tribunal of competent jurisdiction within thirty days of the date of communication of the impugned order or direction to such person. after the commencement of this Act the tribunal constituted thereunder tribunal has got the exclusive jurisdiction with respect to any matter to which the jurisdiction of tribunal extends as provided U/sub. Sec 10 of Sec. 22 of the ibid Act. As such, when an alternate remedy was provided by law the petitioner was legally bound to seek the appropriate remedy from the competent forum & in such circumstances constitutional jurisdiction of this could not be exercised . Petitioners in presence of said alternate remedies, as noted above should have approached the said forum instead of invoking the extraordinary constitutional jurisdiction.

Summary: 1. The party, who alleges fraud, misrepresentation and lack of jurisdiction is bound to prove the same.2. The tendency of depriving of female legal heirs, especially the illiterate and parda Nasheen Ladies is deep rooted in our society since long and the male legal heirs use different fraudulent tactics in order to deprive the female legal heirs from their shari shares, while the law protects the right of such women.3. Courts are not divested of the powers to scrutinize the reasons and justification for a gift, so that no injustice is done to the rightful owners and no course of inheritance is frustrated

Summary: The incident in question occurred when the plaintiff's car was slightly touched by the motorbike of defendant No.1, Furqan Karim, resulting in a quarrel. Despite the compromise, defendant No.1 lodged a false FIR against the plaintiff, for various criminal offenses. The plaintiff claimed that the false FIR caused him mental torture, financial loss, and damage to his reputation. The plaintiff alleged malicious prosecution, arguing that defendant No.1 lodged a false FIR without reasonable cause, leading to harm and damages. The plaintiff sought compensation and damages for the harm suffered as a result.Defendant No.1 denied the allegations and contended that the plaintiff's car had hit his motorbike, resulting in damage. He claimed that he reported the incident truthfully and that the FIR was not lodged with malicious intent. Defendant No.3 (Province of Sindh) also filed a response denying liability. The court considered the evidence and arguments presented by both parties. It concluded that defendant No.1 had lodged a false FIR against the plaintiff without reasonable and probable cause, leading to malicious prosecution. Since defendant No.1 had not challenged the police report and the judicial order, the court found that the prosecution had ended in favor of the plaintiff. The court awarded damages to the plaintiff for the harm suffered due to malicious prosecution and false accusations. It granted the plaintiff Rs. 500,000/- (Rupees Five Hundred Thousand Only) as general damages, along with 5% simple interest from the date of the decree until realization.

Summary: Penal Code (XLV of 1860)-------Ss. 302, 324 & 34---Qanun-e-Shahadat (10 of 1984), Art. 40---Qatl-i-amd, attempt tocommit qatl-i-amd, common intention---Information received from accused to be proved---Appreciation of evidence---Benefit of doubt---Scope---Accused was alleged to havemurdered the father of complainant---Prosecution case hinged on ocular account furnished bycomplainant, disclosure of acquitted accused, disclosure statement of accused andmedical/death certificate of deceased---Facts mentioned in the FIR were reproduced in thealleged disclosure of accused, therefore, it could not be considered as discovery of new factwithin the meaning of Art.40 of Qanun-e-Shahadat, 1984---Complainant could not justify hispresence at the spot---Medical officer deposed that deadbody of the deceased was brought tothe hospital by an Assistant Sub-Inspector of Police---Had the complainant witnessed theoccurrence, nothing prevented him to accompany the deceased to the hospital---Prosecutionhad failed to prove its case against the accused beyond any reasonable doubt---Appealagainst conviction was allowed, in circumstances.Mst. Askar Jan v. Muhammad Daud 2010 SCMR 1604; 2017 SCMR 596 and JavaidAkbar v. Muhammad Amjad and Jameel @ Jeela and another 2016 SCMR 1241 rel.

Summary: (a) Criminal trial-------Witness---Related witness---Statement of related witness---Reliance---Scope---Evidenceof a related witness could not be discarded on the ground of his being related to the victim---If it was found that the testimony of a related witness got no corroboration from attendingcircumstances of the case or his conduct shown at the time of occurrence or just thereafterwas such which could not be expected by a prudent person, in such circumstance theevidence furnished by a related witness could easily be discarded.(b) Penal Code (XLV of 1860)-------Ss. 302(b), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd,abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation ofevidence---Benefit of doubt---Ocular and medical evidence---Contradictions--- Scope---Prosecution case was that the accused party made firing upon the complainant party, whichresulted into instantaneous death of deceased on the spot and caused injuries to othermembers of the complainant party---Ocular account of the incident had been furnished byfour witnesses including complainant and injured persons---Complainant in his report and theeye-witnesses in their statements attributed a specific role of firing to accused---Injuredwitness attributed specific role to absconding accused persons of firing and causing injuriesto him---Other injured witness attributed specific role of firing to absconding accused andcausing injuries to him on his right leg---Another injured witness attributed role of firing toabsconding accused persons and for causing injuries to him---According to prosecutionwitnesses, the accused persons were fourteen in number who made firing upon them---Ifindiscriminate firing was being made by fourteen persons with automatic rifles, no one coulddistinguish their role with exactitude as to whose shot hit whom---Medical evidence showedthat all the injured witnesses sustained injuries on their backside but surprisingly, all theinjured witnesses had attributed the accused with specific role of firing upon the deceased---Three eye-witnesses attributed role of firing to absconding accused and causing injuries tothem---In such view of the facts when firing was being made by the accused persons howcould it be possible that the complainant as well as the injured prosecution witnesses identified the accused persons and attributed individual role to each of them that too whenthey were not facing the accused persons---Said aspect of the matter created doubt in aprudent mind with regard to the mode and manner in which the occurrence took place---Injuries on the persons of the above witnesses were also doubtful---Neither complainantstated about the injuries allegedly received by him in his statement before the court as well asin his report nor he stated a single word about injuries of injured witnesses---Injured witnessdid not state a word about the injuries of complainant and other injured witnesses---Similarly, other injured witness did not state about injuries of the complainant and otherprosecution witnesses---Prosecution story as put forth before the Trial Court was hardlybelievable, in circumstances---Record showed that all the accused were related to each otherand were of the same clan---High Court observed that present case was best example ofspreading the net wide and implicating maximum male members of the opponent family inorder to deter them from pursuing their case---Circumstances established that the convictionpassed by the Trial Court against the accused was against all canons of law recognized for thesafe dispensation of criminal justice---Appeal against conviction was allowed, in circumstances.Bashir Ahmed v. The State 2019 SCMR 1417 and Munir Ahmed v. The State 2019SCMR 2006 rel.(c) Penal Code (XLV of 1860)-------Ss. 302(b), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd,abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation ofevidence---Benefit of doubt---Delay of about six hours and forty minutes in lodging the FIR---Effect---Prosecution case was that the accused party made firing upon the complainantparty, which resulted into instantaneous death of deceased on the spot and injuries to othermembers of the complainant party---Record transpired that the injured witnesses anddeceased were examined by Medical Officer before lodging the FIR---Medical Officer statedthat on 06.05.2018 at 12:45 p.m., dead body of the deceased was examined and on the samedate the injured witnesses were also examined at 12:40, 12:50, 1:00 and 1:10 p.m.respectively---Occurrence took place on 06.05.2018 at 10:30 a.m. but the matter wasreported same day at 5:10 p.m.---Fact remained that the place of occurrence was at a distanceof 41 kilometres from Levies Thana---High Court observed that FIR was lodged with delayof six hours and forty minutes, after deliberation and consultation for the reason that theprosecution waited for the medical reports and after obtaining same the prosecutionwitnesses attributed role to each accused---Said fact created serious doubt in the prosecutionstory that why the report was not lodged promptly---Appeal against convction was allowed,in circumstances.(d) Criminal Procedure Code (V of 1898)-------S. 154---Delay in lodging the FIR---Effect---Delay in lodging the report cannot be simplybrushed aside, as it assumed great significance---Delay could be attributed to consultations,taking instructions and calculatedly preparing the report keeping in view the names of theassailants opened for involving such persons who ultimately the prosecution might wish to nominate.Allahyar v. The State 1990 SCMR 1134; Mahmood Ahmad and 3 others v. The Stateand another 1995 SCMR 127; Imran Hussain v. Amir Arshad and 2 others 1997 SCMR 438;Muhammad Rafique v. The State 2014 SCMR 1698 and Altaf Hussain v. The State 2019SCMR 274 rel.(e) Penal Code (XLV of 1860)-------Ss. 302(b), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd,abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation ofevidence---Benefit of doubt---Contradictions in the statement of witnesses---Effect---Prosecution case was that the accused party made firing upon the complainant party, whichresulted into instantaneous death of deceased on the spot and injuries to other members of thecomplainant party---Investigating Officer/Tehsildar had stated that the statements of theinjured persons were recorded under S.161, Cr.P.C. before 08.05.2018, however, saidwitness did not clarify the exact date of recording the statements of injured witnesses---Onthe other hand, two injured witnesses stated during cross-examination that neitherInvestigating Officer/Tehsildar met them nor their statements were recorded by him---Otherwitness stated during cross-examination that he remained in civil hospital for one day but hedid not meet Tehsildar/ Investigating Officer Levies or any other Levies Officials at CivilHospital---Said facts rendered the case of the prosecution doubtful---Appeal againstconviction was allowed, in circumstances.(f) Criminal Procedure Code (V of 1898)-------S. 161---Delay in recording the statement of witnesses by police---Scope---Delay of evenone or two days without explanation, in recording the statements of witnesses, was fatal forthe prosecution and not worthy of reliance.Muhammad Asif v. The State 2017 SCMR 486; Muhammad Sadiq v. The State PLD1960 SC 223; Tariq Gul v. Ziarat Gul 1976 SCMR 236; Muhammad Iqbal v. The State 1984SCMR 930; Haroon alias Harooni v. The State and another 1995 SCMR 1627 andMuhammad Khan v. Maula Bakhshah 1998 SCMR 570 rel.(g) Criminal trial-------Witness---Statement of injured witness---Scope---Injuries on the person of a witnessmight establish his presence at the relevant time at a particular place of occurrence but theinjury itself was not the proof that whatever the witness was telling was the truth.Shahidullah v. Eid Marjan and 2 others 2014 PCr.LJ 1684 and Amin Ali and anotherv. The State 2011 SCMR 323 rel.(h) Penal Code (XLV of 1860)-------Ss. 302(b), 324, 109, 147, 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, abetment, rioting, rioting armed with deadlyweapon, unlawful assembly---Appreciation of evidence---Benefit of doubt---Withholdingmaterial evidence---Scope---Prosecution case was that the accused party made firing upon thecomplainant party, which resulted into instantaneous death of deceased on the spot andinjuries to other members of the complainant party---In the present case, the injured anddeceased were shifted to hospital by two persons but none of the said persons were producedby the prosecution nor their statements were recorded under S.161, Cr.P.C.---If a piece ofevidence was available with a party and the said party failed to produce the same before thecourt then presumption under Art. 129(g) of Qanun-e-Shahadat, 1984 could be drawn thathad the said evidence been produced before the court it would have been unfavourable to thesaid party---Such presumption could fairly be drawn in the present case that had said twobeen produced before the court, they would not have supported the prosecution case---Nonexamination of such material witnesses had materially affected the prosecution case---Appealagainst conviction was allowed, in circumstances.Lal Khan v. The State 2006 SCMR 1846 rel.(i) Penal Code (XLV of 1860)-------Ss. 302(b), 324, 109, 147, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd,abetment, rioting, rioting armed with deadly weapon, unlawful assembly---Appreciation ofevidence---Benefit of doubt---Recovery of crime empties---Reliance---Scope---Prosecutioncase was that the accused party made firing upon the complainant party, which resulted intoinstant death of deceased on the spot and caused injuries to other members of thecomplainant party---Record showed that crime empties were recovered from the place ofoccurrence but same were not sent to Forensic Science Laboratory, which made the samedoubtful and same could not be relied upon for purpose of conviction---Said evidence was acorroborative one and in a case where direct evidence failed, corroborative piece of evidencewas of no avail---Appeal against conviction was allowed, in circumstances.Ghulam Akbar and another v. The State 2008 SCMR 1064 rel.(j) Criminal trial-------Witness---Improvement by witness---Effect---If a witness, made, dishonest improvementin his statement to strengthen the prosecution case, such portion of his statement was to bediscarded.Amir Zaman v. Mahboob and others 1985 SCMR 685 rel.

Summary: 1. The relation between the two is so close that the Courts must be on guards while accepting the testimony of such a witness especially in the cases where capital punishment could be awarded.2. Both the witnesses who identified the deadbody were independent and disinterested, had they been produced would have told the truth, but their nonproduction gives an inference that they were not ready to support the false charge of the complainant against the respondent.3. The law is settled that when the best possible evidence is withheld then its nonproduction will react against the prosecution with an otherwise inference.4. If two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented.