Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention--- Appreciation of evidence---Contradictions in prosecution evidence--- Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---Occurrence had taken place on 16.07.2017 at 12.45 pm and complainant reported the incident to the police through an oral statement at 03.10 pm in emergency ward of the hospital, which sent the same to the police station through a Constable for formal registration of FIR---First Information Report was chalked out at 03.25 pm on 16.07.2017---Case of prosecution was that the injured was shifted to hospital by the complainant, his brother and the people of the locality---On perusal of Medico-Legal Certificate, it was revealed that injured was accompanied by his brother-in-law---From the testimony of the complainant, it was revealed that before recording statement of the witness, SI examined the body of the deceased, examined the injuries received by the deceased and then recorded the statement of the complainant---Admitted fact that before recording the statement of the complainant, the partial investigation was conducted by SI---Medical Officer deposed that on 16.09.2017, patient was brought by his brother-in-law to emergency department at about 01.12 pm and she conducted Medico-Legal Certificate at about 01.15 pm---Appeal against conviction was allowed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention--- Appreciation of evidence---Delay of 21 hours in conducting the postmortem examination of the dead body of deceased---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---Duration between the death of the deceased and the postmortem examination contradicted the prosecution's case---Per the prosecution's version, the occurrence occurred at 12:45 p.m. on 16.07.2017---As per the prosecution's case, deceased took his last breath at 2:45 p.m. on 16.09.2017 and the matter was reported to police at 03.00 p.m. on 16.07.2017---Dead body was shifted to the hospital for a postmortem examination and postmortem examination was conducted at 11:45 a.m. on 17.09.2017, i.e., 21 hours after the occurrence---Whereas the Medical Officer who had conducted the postmortem examination opined that the duration between death and postmortem examination was 21 hours, which fact vitiated the prosecution case set forth by the ocular account---Appeal against conviction was allowed, in circumstances. Muhammad Rafique alias Feeqa v. The State 2019 SCMR 1068 and Sufyan Nawaz and another v. The State and others 2020 SCMR 192 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention--- Appreciation of evidence---Presence of the complainant and eye-witness at the spot not proved---Chance witnesses---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---In the inquest report, which was prepared on 16-09-2017, Investigating Officer mentioned the names of the persons who identified the dead body of deceased--- Names of said witnesses had also been mentioned in the last column of the inquest report---Such fact outrightly suggested that the complainant and the eye-witness were not present when the inquest report in this case was prepared---At the time of occurrence, the positions stated by the witnesses conflicted---Thus, they were chance witnesses, as by coincidence or chance, they were present at the place of occurrence when the incident was taking place---Said witnesses could not normally be where and when they professed to have been---Prosecution witnesses had not deposed the reason for their presence at the place of occurrence---Admittedly, they were not residents of the locality where the incident occurred---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention--- Appreciation of evidence---Safe custody of recovered weapon of offence, bullet and magazine not proved---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---Record showed that pistol .30-bore, five live bullets and magazine, were recovered on the disclosure of the accused/appellant with positive report of Forensic Science Agency---However the Court had noticed with concern that the safe custody of the parcel of crime empties along with two lead bullets, pistol .30-bore, five live bullets and magazine had not been proved from the prosecution evidence---As per the prosecution case, on 16.09.2017 the Investigating Officer secured five crime empties along with two lead bullets from the place of occurrence and handed them over to Head Constable/Moharrar Malkahana---On 21.09.2017, Head Constable/ Moharrar Malkhana handed over a parcel of crime empties to the Investigating Officer for its onward transmission to the office of Forensic Science Agency---After that, the appellant was arrested on 21.11.2017, and during the investigation, he recovered a pistol, .30-bore, five live bullets, and a magazine from his house on 03.12.2017---Per the case of prosecution, the Investigating Officer handed over the recovered pistol .30-bore, five live bullets and a magazine to the Moharar of other Police Station for safe custody---However, Moharar Malkhana of said Police Station had not been produced by the prosecution as a witness rather Moharar of concerned Police Station while appearing as witness deposed that on 03.12.2017, Investigating Officer handed over to him one sealed parcel said to contain a pistol and it was received back from him on 07.12.2017 for depositing the same in the office of Forensic Science Laboratory, which was contrary to the deposition made by the Investigating Officer---Prosecution failed to establish by cogent evidence that the alleged parcel of pistol .30-bore, five live bullets and a magazine recovered from the possession of the appellant was kept in safe custody---Such contradictions did lead to an irresistible inference that the prosecution had not been able to prove safe custody of the recovered pistol .30-bore, five live bullets and magazine through material and cogent evidence---In such circumstances, the recovery of the weapon of offence and a positive report was of no consequence---Appeal against conviction was allowed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention--- Appreciation of evidence---Motive not proved---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---Property dispute was alleged to be motive behind the occurrence---In the instant case, enmity between the two parties, i.e., the deceased and accused, was not disputed before the High Court---Enmity is a double edged weapon---Existence of a civil dispute was not proved; instead, the complainant had reason for involving the appellant for committing the crime, yet the Court had to be cognizant of the fact that this might, in a given case, lead to the false implication of the appellant---Appeal against conviction was allowed, in circumstances. (f) Criminal trial--- ----Absconsion---Corroborative evidence---Factum of remaining a fugitive from law for a considerable period, even if established, can only be used as corroborative evidence and is not substantive---Mere absconsion is not proof of guilt of an accused. Rasool Muhammad v. Asal Muhammad and another 1995 SCMR 1373 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 109 & 34---Qatl-i-amd, abetment, common intention--- Appreciation of evidence---Co-accused acquitted on same set of evidence---Accused was charged that he along with his co-accused committed murder of the maternal uncle of complainant by firing---Record showed that co-accused of the appellant had been acquitted by the Trial Court on the same set of evidence---Although, acquittal of co-accused was challenged, however, said appeal was dismissed due to non-prosecution---Major part of evidence of the prosecution was disbelieved qua the said co-accused---So no reliance could be placed on the testimony of the prosecution witnesses for conviction of the appellant---Appeal against conviction was allowed, in circumstances. Rai Usman Ahmad for Appellant. Ms. Maida Sobia, Deputy Prosecutor General for the State. Muhammad Abid Hussain Saqi for the Complainant. Date of hearing: 12th March, 2025. Judgment Aalia Neelum, C.J .--- Muhammad Shahbaz alias Honey son of Muhammad Tariq Javed, Caste Jutt, resident of House No.2, Bazar-4, Guroo Arjan Nagar Gowalmandi, District Lahore (presently resident of Arif Chowk Tokawali Gali Iqbal Town, Police Station Millat Park, Lahore), the appellant was involved in case FIR. No.526-2017, dated 16.09.2017, registered under Sections 302, 34, 109, P.P.C, at the Police Station, Gowalmandi, District Lahore, and was tried by the learned Additional Sessions Judge (M.C.T.C), Lahore. The learned trial court seized the matter in terms of the judgment dated 28.02.2020 and convicted the appellant under section 302(B) P.P.C and sentenced him to undergo imprisonment for life as Tazir with the direction to pay Rs.5,00,000/-as compensation to the legal heirs of the deceased. The compensation amount would be recovered as arrears of land revenue, and in case of default in payment, the appellant would undergo six months S.I. The benefit of section 382-B, Cr.P.C. was also extended in favor of the appellant. 2. Feeling aggrieved by the trial court's judgment, Muhammad Shahbaz alias Honey, the appellant, has assailed his conviction by filing Crl. Appeal No.15995 of 2020, the complainant being dissatisfied with the impugned judgment dated 28.02.2020, filed Criminal Revision No.16254 of 2020 for enhancement of the sentence of respondent No.1. As both the matters are arising out of the same judgment, they are being disposed of through a single judgment. 3. The prosecution story, as alleged in the FIR (Ex. PB) lodged on the complaint (Ex. PA) of Hamza Irshad (PW-1)-the complainant, is that on 16.09.2017, at about 12:45 p.m., the complainant (PW-1) was in the company of his maternal uncle, Mehmood Ali (since dead) and Mehmood Ali (since dead) along with his friends, Ghulam Murtaza (PW-2) and Ali Raza (PW-3) was sitting near the shop of Rana Iftikhar and Mahmood Ali (since dead) was preparing for "Zohar" prayer. Meanwhile, the accused, Muhammad Shahbaz alias Honey, and his co-accused, Sultan alias Jajja, equipped with their respective pistols, came by a motorcycle bearing registration No. LER-39 and raised lalkara that they would not spare Mehmood Ali (since dead), whereupon the accused, Muhammad Shahbaz alias Honey, made fire shots, which hit the chest and abdomen of Mehmood Ali (since dead). The co-accused, Sultan alias Jajja, also fired shots, which landed on the left shoulder, back, and other body parts of Mehmood Ali (since dead), who fell, whereas both the accused persons decamped from the place of occurrence while extending threats and firing. The complainant (PW-1) along with Ghulam Murtaza (PW-2) and other people of vicinity, shifted Mehmood Ali (since dead) to the hospital in injured condition, who succumbed to the injuries. The alleged occurrence was witnessed by Ghulam Murtaza (PW-2) and Ali Raza Gujjar (PW-3). 4. The motive behind the occurrence was a property dispute between Mehmood Ali (since dead) and the accused persons, and the occurrence was committed on the instigation of Irfan alias Iffi Jutt, who wanted to get possession over the property of Mehmood Ali (since dead). Hence, this case. 5. After registration of FIR, Aurangzeb, S.I. (PW-15), carried out the investigation, submitted a report under Section 173 of Cr.P.C., and sent the same to the court of competent jurisdiction while placing the name of the accused persons in Column No.3 of the challan. On 17.09.2018, the trial court formally charge-sheeted the appellant, to which he pleaded not guilty and claimed trial. In support of its version, the prosecution produced as many as fifteen (15) witnesses. 6. After the closure of prosecution evidence, the appellant was examined under Section 342 of Cr.P.C., wherein he refused to appear as his own witness in terms of Section 340(2), Cr.P.C. However, in his defence, the appellant produced a copy of FIR No.243/2012, offence under Section 342, P.P.C. In response to a particular question of why this case was against him and why the PWs deposed against him, the appellant made the following deposition: - "A false case has been concocted against me due to the mala fide intention of the complainant party, as the complainant party is inimical towards me that's why I have been falsely involved in this case. Due to this reason, prosecution has bitterly failed to prove the charge against me. All the witnesses produced by the prosecution are chance witnesses and they could not establish their presence at the time of occurrence. Moreover, there are number of contradictions in the statements of witnesses inter-se and the prosecution case is full of doubts and even the prosecution has maneuvered this false case against me and it is established during the evidence that there is gross conflict between ocular and medical, there are contradictions in the statements of the witnesses, the prosecution case is not corroborated with any independent piece of evidence and whole prosecution case full with doubts. Even the motive set up by the prosecution is not directly concerned with me as I was not in conflict with the deceased with regard to the dispute over the property. I have also been involved in this case due to the reason that I had registered a case/FIR No.243/12 under section 324, P.P.C registered with police station, Gawalmandi and in the said case Mehmood Ali remained jail for 3 and half/04-years. Due to this grudge in the mind of the complainant party, I have been falsely involved in this case. Moreover, it was in the mind of the complainant party that I was pursuing the different matters of Sultan, co-accused (since P.O), who was the relative of the complainant party that's why I have been falsely involved in this case. Basically, the occurrence was committed by unknown persons due to the reason that deceased had enmity with number of persons and the inhabitants/natives of the locality were not supporting the version of the complainant that's why no person from locality was produced before the I.O and even before the court. I have been maliciously involved in this case." 7. After recording evidence and evaluating the evidence available on record in light of the arguments advanced by both sides, the trial court found the prosecution version proved beyond any shadow of reasonable doubt, which resulted in the appellant's conviction in the afore-stated terms. 8. I have heard the arguments advanced by the learned counsel for the parties and have minutely perused the record on the file. 9. As per the prosecution's case, the occurrence had taken place on 16.07.2017 at 12:45 p.m. near the shop of Rana Iftikhar alias Bao situated in Gowalmandi Lahore, falling within the territorial jurisdiction of the police station Gowalmandi, Lahore, which is at a distance of 1/2 kilometer only from the place of occurrence. After the occurrence, Hamza Irshad (PW-1)-the complainant along with his brother and people of the locality shifted Mehmood Ali (then injured), the maternal uncle of Hamza Irshad (PW-1)-the complainant, to Mayo Hospital boarding him on rickshaw and got admitted him in Mayo Hospital for saving his life, where medical treatment was provided to Mehmood Ali, who succumbed to the injuries in the hospital. Hamza Irshad (PW-1)-complainant mentioned in oral statement (Ex. PA) that his maternal uncle Mehmood Ali was injured in the firing and fell on the ground drenched in blood. The accused fled on a motorcycle while threatening and firing and took his uncle's licensed pistol. According to Hamza Irshad (PW-1), the complainant, he, along with his brother (not named) and other residents of the neighborhood, had put his uncle in a rickshaw and admitted him to Mayo Hospital, where he (PW-1) was busy treating his uncle Mahmood Ali, who succumbed to the injuries in the hospital. Hamza Irshad (PW-1)-the complainant reported the incident to Syed Waqar Ali S.I. (PW-6) through oral statement (Ex.PA) at 03:10 p.m. in Emergency Ward of Mayo Hospital, who sent the same to police station through Maqbool Ahmad/C (not cited as witness) for formal registration of FIR and formal FIR (Ex. PB) was chalked out at 03:25 p.m. on 16.07.2017 by Muhammad Ijaz S.I. (PW-5). Notably, the death certificate of Mayo Hospital, Lahore (Ex.PG) reveals that Mehmood Ali, then injured, was admitted in the Emergency Ward at 01:12 p.m. He took his last breath at 02:45 p.m., and the matter was reported to the police at 03:10 p.m. It is the case of the prosecution that Mehmood Ali was shifted to Mayo Hospital, Lahore, by Hamza Irshad (PW-1), the complainant, his brother (not named in the oral statement (Ex.PA) and FIR (Ex. PB)), and the people of the locality. Whereas, on perusal of MLC (Ex.PK), it reveals that Mehmood Ali (then injured) was accompanied by Irshad Ali (brother-in-law) of Mehmood Ali (then injured). Hamza Irshad (PW-1)-the complainant deposed during his examination-in-chief that: - "Me, my brother and Ghulam Murtaza along with people of the locality shifted my uncle Mahmood Ali to hospital but my uncle Mahmood Ali succumbed to the injuries despite receiving treatment." Contrary to the deposition of Hamza Irshad (PW-1), the complainant, Ghulam Murtaza (PW-2), the eye-witness, deposed during his examination in chief that: - "Hamza Irshad, his brother Noman Irshad and people of the neighbourhood shifted the injured on rickshaw to Mayo hospital. Ali Raza and I also went with them on our motorcycle. Injured Mahmood was shifted to operation theater and we remained outside the theater and came to know at about 03:00 pm that Mahmood has passed away. After sometime, Investigating Officer came there and recorded our statement." While Ali Raza (PW-3) deposed during his examination-in-chief that: - "Hamza Irshad, Ghulam Murtaza, Noman Irshad and I shifted the deceased to the hospital on rickshaw who died in the hospital at 03:00 pm." The defence has also brought on the record improvements in the statements made by Hamza Irshad (PW-1), the complainant, Ghulam Murtaza (PW-2), and Ali Raza (PW-3), the eye-witnesses in their statements recorded before the police under Section 161 of Cr.P.C. Hamza Irshad (PW-1)-the complainant deposed during cross-examination that: - "I got mentioned in my complaint Ex.PA that I along with Ghulam Murtaza and other people of locality shifted the dead body of deceased to the hospital. Confronted with Ex.PA, where the name of Ghulam Murtaza is not mentioned." Ghulam Murtaza (PW-2)-the eye-witness deposed during cross-examination that: - "I got recorded in my statement under section 161, Cr.P.C. that I along with Ali Raza proceeded to Hospital on motorbike. Confronted with Ex.DA wherein it is not recorded. I got recorded in my statement that deceased Mahmood Ali was taken to Operation Theater of Mayo Hospital and we kept on standing outside Operation Theater. Confronted with Ex.DA where it is not recorded. I got mentioned in my statement under section 161, Cr.P.C., that death of deceased Mahmood Ali came into my knowledge at 03:00 pm. Confronted with Ex.DA wherein it is not recorded." Ali Raza (PW-3)-the eye-witness deposed during cross-examination that: - "I got recorded in my statement before police that I along with Hamza Irshad, Ghulam Murtaza, Noman Irshad shifted the deceased to hospital in rickshaw. Confronted with Ex.DB, where it is not so recorded. I got recorded in my statement before the police that deceased Mahmood Ali died at 03:00 pm in the hospital. Confronted with Ex.DB, where it is not so recorded. I got recorded in my statement before the police that accused persons while threatening us left the place of occurrence. Confronted with Ex.DB, where words "threatening us" are not so recorded but only word "threatening" has been mentioned." It is the prosecution's case that after shifting Mahmood Ali in injured condition to Mayo Hospital, medical treatment was provided to the injured, who succumbed to injuries. The incident was reported to the police upon arrival. From the testimony of Hamza Irshad (PW-1)-the complainant, it reveals that before recording statement of the witness, Syed Waqar Ali Shah S.I. (PW-6), examined the body of Mehmood Ali, the deceased, examined the injuries received by the deceased and then recorded the statement of Hamza Irshad (PW-1)-the complainant. Hamza Irshad (PW-1)-the complainant deposed during cross-examination that: - "My brother Noman brought rickshaw at place of occurrence within 05-minutes from time of occurrence. It is correct that rickshaw driver has not been produced during investigation. It is further correct that said rickshaw was also not produced during the investigation. Noman has not been cited as a witness of the occurrence. Only four persons from the locality went to the hospital. Those four persons have not been made witnesses of the present occurrence. Volunteered that they were not present at the time of occurrence. Shop of Rana Iftikhar is at two km distance from Mayo Hospital. ----------------- On way to hospital from shop of Rana Iftikhar, Police Station falls, however, we took other passage. It is incorrect to suggest that I have made dishonest improvement with regard to usage of other passage. Police check-post exists within the Mayo Hospital boundary. Officials from said police check-post approached us after some time. Syed Waqar Ali Shah SI approached us. Syed Waqar Ali Shah SI examined the injuries received by Mahmood Ali. Police officials from police check-post reached to us after 30-minutes of our arrival whereas Syed Waqar Ali Shah SI came from Police Station. -------------------Statement of my father was recorded by Syed Waqar Ali Shah SI. Statement of my father was recorded earlier to my statement. It is not in my knowledge that how much prior to my statement, statement of my father was recorded. When my statement was recorded by Syed Waqar Ali Shah SI, only two police officials were present over there. Syed Waqar Ali Shah SI examined the whole body of the deceased before recording my statement. It is not in my knowledge that apart from the statement of my father, whether any police official recorded or not any other statement of any other person in this case. Syed Waqar Ali Shah SI stayed at hospital for about 30-minutes. --------------- I was not present when Syed Waqar Ali Shah SI examined the dead body of deceased Mahmood Ali. ------------ My brother Noman reached at place of occurrence after 5-minutes to the time of occurrence whereas my father Irshad Mahmood directly reached to Mayo Hospital from Mian Munshi Hospital at about 01:20 pm." Ghulam Murtaza (PW-2)-the eye-witness deposed during cross-examination that:- "Nouman (brother of complainant Hamza) brought rickshaw. Again said that rickshaw was passing through the street and came over within no time. We reached to the Hospital at about 01:00 pm. Police reached at Hospital at about 03:00 pm. No police official reached at the Hospital before 03:00 pm. Police officials asked about the occurrence from complainant Hamza." It is an admitted fact that before recording the statement of the complainant, the partial investigation was conducted by Syed Waqar Ali, S.I. (PW-6). Syed Waqar Ali, S.I (PW-6) deposed during examination in chief that: - "Stated that on 16.09.2017, I was posted at P.S Gowal Mandi, Lahore as Chauki Incharge, Mayo Hospital Lahore. I was present in the said police posts when Constable Imran informed me that a person has suffered a firearm injury and his dead body is shifted to the emergency ward of Mayo Hospital. I went to the emergency ward where complainant Hamza met me and got his statement recorded, which I wrote down. During cross-examination, Syed Waqar Ali, S.I (PW-6) deposed as under: - "The Police Post at which I was posted is situated within premises of the Mayo Hospital, Lahore. I received the information regarding shifting of the dead body in emergency ward of the Mayo Hospital, Lahore at about 01:00 pm." Whereas Dr. Marriam Shahid (PW-10) deposed during examination-in-chief that on 16.09.2017, patient Mahmood Ali was brought by Irshad Ali (brother-in-law) to emergency department at about 01:12 pm, and she conducted MLC at about 01:15 pm on book No.29. Aurangzaib S.I (PW-15)-the investigating officer deposed during cross-examination that: - "I received information of the present occurrence at about 12:00 (noon) and I was present at that time in the area. I reached at hospital between 01:30 pm to 02:00 pm. ------------- complainant Hamza Irshad got recorded his statement to Waqar Ali SI in my presence. Said Waqar Ali SI was posted at Police Station Gowalmandi at that time. I started investigation proceedings in this case at about 03:15 pm. It is correct that I prepared injury statement and inquest report and handed over the dead body to the constables for post-mortem before receiving the copy of FIR. FIR of this case was chalked out at 03:25 pm on 16.09.2017. ------------------- It is correct that in inquest repot Ex.PS against column No.III, time of information of present occurrence is mentioned as 03:10 pm. ----------------------- it is correct that on 17.09.2017, given up PW Irshad got recorded his statement under section 161, Cr.P.C. It is further correct that in his statement before me, he got recorded that at the time of present occurrence, he was present on his duty at Mian Munshi Hospital and after receiving information of instant occurrence, he arrived at place of occurrence and shifted the injured Mahmood to hospital." The duration between the death of the deceased and the postmortem examination also contradicts the prosecution's case. Per the prosecution's version, the occurrence occurred at 12:45 p.m. on 16.07.2017. As per the prosecution's case, Mahmood Ali-deceased took his last breath at 2:45 p.m. on 16.09.2017 (as per the death certificate of Mayo Hospital, Lahore, Ex. PGG available at page No. 175 of the book), and the matter was reported to police at 03.00 p.m. on 16.07.2017. The dead body was shifted to the hospital for a postmortem examination. The postmortem examination was conducted at 11:45 a.m. on 17.09.2017, i.e., 21 hours after the occurrence, whereas the doctor who had conducted the postmortem examination opined that the duration between death and postmortem examination was 21 hours, which fact vitiates the prosecution case set forth by the ocular account, in this regard cases of "Muhammad Rafique alias Feeqa v. The State" (2019 SCMR 1068) and "Syfyan Nawaz and another v. The State and others (2020 SCMR 192), can be referred. 10. There is another aspect of the case that makes the prosecution's case doubtful. In the inquest report (Ex. PS), which was prepared on 16-09-2017, Aurangzeb, S.I. (PW-15) Investigating Officer mentioned the names of the persons who identified the dead body of Mahmood Ali-deceased as Irshad Mahmood (given up PW) and Maqsood Ahmad (PW-14), brother-in-law and friend of Mahmood Ali-deceased. Their names have also been mentioned in the last column of the inquest report (Ex. PS). This out rightly suggests that Hamza Irshad (PW-1), the complainant Ghulam Murtaza (PW-2), and Ali Raza (PW-3), the eye-witness, were not present when the inquest report (Ex. PS) in this case was prepared. This fact further gets support from the deposition of Maqsood Ahmad (PW-14) during examination-in-chief that: - "On 17.09.2017, I along with Irshad Mahmood identified the dead body of deceased Mahmood Ali at dead house of Mayo Hospital." Maqsood Ahmad (PW-14) also deposed during cross-examination that: - "I did not visit the hospital before 17.09.2017. My statement was recorded by the I.O. at 04:00 pm at the hospital." In addition, there are discrepancies in the witnesses' statements regarding their position at the time of the incident. Hamza Irshad (PW-1)-the complainant deposed during examination-in-chief that: - "Stated that on 16.09.2017, at 12:45 pm, my maternal uncle Mahmood Ali, Ghulam Murtaza and Ali Raza were sitting in the electrics shop and my maternal uncle was preparing for Zuhar prayer." Ghulam Murtaza (PW-2)-the eye-witness deposed during examination-in-chief that: - "Stated that on 16.09.2017, I went to see Mahmood at about 11:30 am who was present in an electronic shop. The owner of electronic shop was also present when we reached there. Ali Raza also accompanied me to the electronic shop on a motorcycle. We placed the chairs outside the shop and sat there. After a short while, Hamza Irshad complainant also joined us." Ali Raza (PW-3)-the eye-witness deposed during examination-in-chief that: - "Stated that on 16.09.2017, Ghulam Murtaza Dogar and I went to see Mahmood Ali deceased at his home who was sitting in an electronic shop below his house. The owner of electronic shop was also present. After short while, nephew of Mahmood Ali deceased Hamza Irshad also reached there. All of us sat outside the shop." At the time of occurrence, the positions stated by the witnesses conflicted. They were thus chance witnesses, as by coincidence or chance, they were present at the place of occurrence when the incident was taking place. They could not normally be where and when they profess to have been. Even, Aurangzeb, S.I (PW-15)-the investigating officer deposed during cross-examination that: - "It is correct that the address of PWs Ghulam Murtaza, Ali Raza and complainant Hamza are not of the street where the occurrence took place. It is correct that the present occurrence was taken place in street No.2 Guru Arjan and no resident from said was recorded by me." Hamza Irshad (PW-1)-the complainant deposed during cross-examination that: - "It is correct that PWs Ghulam Murtaza and Ali Raza are not residents of Gawalmandi." The prosecution witnesses have not deposed the reason for their presence at the place of occurrence. Admittedly, they were not residents of the locality where the incident occurred. So, they are chance witnesses. Ghulam Murtaza (PW-2)-the eye-witness deposed during examination-in-chief that: - "Distance between Sadoke village to Gowalmandi is aobut 44-kms. It consumes about one hour on some vehicle. Volunteered that in those days, I was living at property office. It is incorrect to suggest that my volunteer portion is incorrect. I did not get mentioned in my statement that in the days of present occurrence, I was residing at Sadoke. Confronted with Ex.DA, where it is so recorded." Ali Raza (PW-3)-the eye-witness deposed during cross-examination that: - "Mohallah Usmanpura Chaudharian Shalimar Town, Lahore is at about distance of 12/15-kms from place of occurrence of present occurrence. Volunteered that in the days of present occurrence, I was not residing at Mohallah Usmanpura. It is incorrect to suggest that my volunteer portion is incorrect. My CNIC has the same address as mentioned Mohallah Usmanpura Chaudharian Shalimar Town, Lahore. it is correct that my present as well as permanent residence is mentioned as Mohallah Usmanpura Chaudharian Shalimar Town, Lahore in my CNIC. My CNIC was issued in the year 2013 which would expire in the year 2023. I have no document with me right this time showing any other residential address of mine instead of Mohalla Usmanpura Chaudharian Shalimar Town, Lahore." These facts indicated and gave a scent that Hamza Irshad (PW-1)-the complainant, Ghulam Murtaza (PW-2)-the eye-witness and Ali Raza (PW-3)-the eye-witness were not at all present at the scene. The testimonial assertions of the witnesses, i.e., Hamza Irshad (PW-1)-the complainant, Ghulam Murtaza (PW-2)-the eye-witness, and Ali Raza (PW-3)-the eye-witness, did not have the ring of truth. The reason they assigned (PW-1, PW-2, and PW-3) for their alleged presence at the spot was farfetched and fabricated. In addition, the depositions of the prosecution witnesses reveal that the deceased was a man of questionable character, having a shady past and criminal antecedent. Hamza Irshad (PW-1), the complainant, deposed during cross-examination that: - "Ghulam Murtaza PW became the friend of deceased Mahmood Ali while they were in jail wherea

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Infirmities in the prosecution case---Accused were charged that they made firing upon the police party when they were signaled to stop, complainant in retaliation also fired on them, resultantly, one of the appellant sustained injury on his left leg-calf and fell down and both the accused were apprehended by the police---Despite exchange of fires between appellants and police party, neither any Police Official or person from the public sustained any firearm injury nor the police mobile was damaged---Complainant and Investigating Officer had admitted said facts---Moreover, the incident had allegedly occurred at 10.25 pm on a busy commercial road but no person from the locality and public was associated as witness---Head Constable/eye-witness had admitted in cross-examination that the complainant did not make any effort to associate private persons from the locality as witness---Said witness had also admitted that at the time of incident a shop was opened---Police Official/witness had deposed that on receiving information about the police encounter, he reached the place of incident, where complainant handed over to him Medico-Legal Letter along with the injured, and he then shifted injured to Civil Hospital---Admitted position that Medico-Legal Letter bore the seal of the Police Station---Said fact did not appeal to a prudent mind that the said complainant was carrying with him the seal of Police Station at the time of incident---No plausible explanation in that regard was available on record, which led to inference that the injured appellant was not taken to hospital from alleged place of incident but from the Police Station---Circumstances established that the prosecution had failed to prove its case against the appellants/accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. Muhammad Umair and others v. The State 2017 YLR 1097 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 324, 353 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Sindh Arms Act (V of 2013), S. 23(1)(a)---Attempt to commit qatl-i-amd, Assault or criminal force to deter public servant from discharge of his duty, common intention, possessing illicit weapon, act of terrorism---Appreciation of evidence---Fake encounter---Accused were charged that they made firing upon the police party when they were signaled to stop, complainant in retaliation also fired on them, resultantly, one of the appellants sustained injury on his left leg-calf and fell down and both the accused were apprehended by the police---Record showed that the clothes of the injured appellant were not secured by the complainant and the Investigating Officer, which raised serious doubt regarding the claim of prosecution that after receiving injury, the appellant fell on the ground---Though the prosecution had relied upon report of the blood swab, stated to be secured from crime scene, yet the report was of no assistance to the case of prosecution, as the same simply showed that the said blood was of human; however, it did not reflect that if the sample was in fact collected from the place of occurrence, as the same had not been shown collected from the alleged crime scene in presence of private mashirs---Complainant and mashir had deposed in their respective evidence that the members of Crime Scene Unit (CSU) arrived at place of incident to secure crime empties and bloodstained earth and secured the same without associating any witness---Since the alleged securing of said articles was unattested, it carried no authenticity---In modern age, every one carried cell phones with camera and even small shop keepers had CCTV Camera at their business places, yet in the instant case, the Investigating Officer made no effort to secure such recording of the incident or its after math---In the same sequence, it could be noted that the Investigating Officer also did not make any inquiry from people of the locality about the alleged police encounter---Moreover, it might be observed that neither complainant nor Investigating Officer had brought any material on the record to suggest that the appellants were ever involved earlier in any criminal case---Criminal record reports were silent on the previous criminal record of the appellants---Circumstances established that the prosecution had failed to prove its case against the appellants/accused beyond any reasonable doubt---Appeal against conviction was allowed, in circumstances. (c) Criminal trial--- ----Benefit of doubt---Principle---Single circumstance creating reasonable doubt in a prudent mind about guilt of accused made him entitled to its benefit not as a grace or concession, but as a matter of right. Ms. Farzana Mateen for Appellants. Muhammad Noonari, D.P.G. for the State. Date of hearing: 31st January, 2025. Judgment Ms. Tasneem Sultana, J .--- Through this appeal, appellants, namely, Khalil Ahmed son of Habibullah and Sheeraz son of Niaz Muhammad have assailed the common judgment, dated 30.05.2024, passed by the learned Anti-Terrorism Court No. XX, Karachi in Special Cases Nos. 391, 391-A and 391-B of 2023, arisen out of FIR No. 206 of 2023 {under sections 353, 324/34, P.P.C. read with Section 7 of Anti-Terrorism Act, 1997 ("Act of 1997")} and FIRs. No. 207 and 208 of 2023 {under section 23(1)(a) of Sindh Arms Act, 2013 ("Act of 2013")}, registered at P.S Eidgah, Karachi, respectively, whereby they were convicted and sentenced, as under:- (i) for offence under section 324/34, P.P.C. read with section 7(h) A.T.A., 1997, the appellants shall undergo R.I for five years and pay a fine of Rs. 20,000/-each, in default thereof, each appellant to undergo S.I. for six months; (ii) for offence under section 353, P.P.C., each appellant shall undergo R.I. for one year; (iii) for the offence under section 23(1)(a) of the Act of 2013, each appellant shall undergo R.I for five years and to pay fine of Rs.20,000/-, in default thereof, each appellant shall suffer S.I. for three months. All the sentences were ordered to run concurrently and the benefit of section 382/B, Cr.P.C. was extended to appellants. 2. Brief facts of the prosecution case as unfolded by the complainant in FIRs are that, on 10.03.2023, at 10:25 p.m., at Orangzaib Market Eidgah, Karachi, Complainant ASI Syed Nasir Ali Shah during patrolling along with staff, signaled the appellants to stop, who were coming from Patel Road on a motor-cycle. On that, the appellants opened fire on police officials to deter them from discharging their duty and to cause their qatl-e-amd; the complainant in retaliation also fired on them, resultantly, appellant Khalil Khan sitting on pillion seat sustained injury on his left leg-calf and he fell down. Both the appellants were apprehended by the police. On personal search from appellant Khalil Khan, a .30-bore pistol along with magazine loaded with two live bullets- one in its chamber- were recovered while from search of appellant Sheraz a .30-bore pistol along with magazine loaded with one live bullet and one bullet in its chamber, were recovered besides some personal belongings. The appellants failed to produce the licenses of the recovered pistols for which separate FIRs under section 23(1)(a) of the Act of 2013 were registered against them. 3. After usual investigation, police submitted the charge-sheet against the appellants. The necessary documents as required under section 265-C, Cr.P.C. were provided to them. The Trial Court framed formal charge against the appellants, to which they pleaded not guilty and claimed to be tried. To prove its case, prosecution examined in all eight witnesses; PW-1 ASI Syed Nasir Ali Shah, complainant, examined at Ex.-5, who produced D.D Entry No. 56 at Ex. 5-A, memo. of arrest and recovery at Ex. 5-B, letter addressed to MLO at Ex. 5-C, copies of FIRs along with their entries at Ex. 5-D to Ex. 5-I, copy of entry in Register No. 19 at Ex. 5-J, memo. of inspection of the place of incident at Ex. 5-K; PW-2 ASI Habib-ur-Rehman examined at Ex. 6, who produced DD Entry No. 57 at Ex. 6-A; PW-3, MLO, Dr. Gulzar Ali examined at Ex. 7, who produced Provisional and Final MLCs of injured appellant Khalil Khan at Ex. 7-A and Ex. 7-B; PW-4 ASI Abid Ali examined at Ex. 8, who produced DD Entry No. 71 at Ex. 8-A, road certificate to case property at Ex. 8-B; PW-5, mashir, HC Sajid Pervaiz examined at Ex. 9; PW-6 Anzal, the owner of the recovered motorbike examined at Ex. 10; PW-7 SIP Mohammad Iqbal examined at Ex. 11, who produced SIO-II form of recovered empties and blood sample at Ex. 11-A, entries No. 8,9, and 12 at Ex.11-B; PW-8, I.O., Inspector Mohammad Ismail examined at Ex. 12, who produced DD Entry No. 08 at Exs. 12-A, DD Entry No. 30 at Ex. 12-B, deployment list of police official at Ex. 12-B/1 to Ex.12-B/12, DD Entry No. 33 at Ex.12-C. The statements of appellants under section 342, Cr.P.C. were recorded at Ex. 14 and 15 respectively, wherein they denied the allegations against them and claimed to be innocent. Appellant Khalil Khan in his 342, Cr.P.C. statement has stated that in fact police picked him prior to incident and then injured him at police station by making fire shot and then shifted him to hospital for treatment. Appellant Sheeraz has stated that police arrested him from in front of his house situated at Cheel Chowk and then booked him in these false cases. They, however, neither examined themselves on oath to disprove prosecution's allegations nor even led any evidence in their defence. The Trial Court after hearing the learning counsel for the appellants as well as A.P.G. for the State convicted the appellants and sentenced them as mentioned above, vide impugned judgment. 4. We have heard the learned counsel for the appellants as well as D.P.G. for the State and perused the material available on record with their assistance. 5. Learned counsel for the appellants inter-alia has contended that the Trial Court has failed to appreciate law and facts involved in the cases and the material contradictions in the statements of the prosecution witnesses, which have created serious doubt in the prosecution case. She has further contended that in alleged encounter neither any of the police officials sustained injury nor even any damage was caused to police mobile. She has also contended that police failed to associate any private witnesses from the locality to prove alleged encounter and recovery of arms. She added that the appellants have no criminal history and they were arrested prior to incident and then police fixed them in a fake encounter and recovery of illegal arms cases after half frying appellant Khalil Khan. 6. Conversely, learned D.P.G for the State while supporting the impugned judgment has maintained that the prosecution has proved its case through ocular and circumstantial evidence. He has further maintained that the appellants had opened fire with their unlicensed pistols on police officials on duty with intention to kill them. He while referring to FSL report and MLC of injured appellant Khalil Khan has also maintained that the crime empties seized from crime scene have been matched with the weapon recovered from the possession of the appellants and the said injured appellant sustained injuries at the spot during encounter. 7. It may be observed that it is the governing principle of criminal law that the onus lies upon the prosecution in a criminal trial to prove all the elements of the offence with which the accused persons are charged with. Article 117 of Qanoon-e-Shahadat Order, 1984 provides that whoever desires any Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that these facts exist. It may further be observed that since in a criminal case liberty of an accused is at stake, a strict standard of proof is required to establish his guilt, which cannot be based on preponderance of probabilities but it must be proved beyond reasonable doubt. The words "beyond reasonable doubt" means that the prosecution must convince the Court that there is no other reasonable outcome of the evidence produced in trial except the conviction. 8. In the case in hand, it appears from the perusal of the record that only PW-1, complainant, ASI Nasir Ali Shah and PW-5, mashir, HC Sajid Pervaiz are the eye-witnesses of the incident. The prosecution through P.Ws have produced memos of arrest and recovery and place of incident, FSL report, Medico Legal Certificate and Serological Analysis Report (SAR). However, prosecution has to prove that the appellants on the alleged day and time were present at the alleged place and they opened fire on police officials to deter them from performing their duty with intention to commit their qatl-e-amd and police succeeded to apprehend them along with illegal arms. Prima facie, while convicting the appellants, the Trial Court did not appreciate the fact that despite exchange of fires between appellants and police party, neither any police official or person from the public sustained any firearm injury nor the police mobile was damaged. In their depositions, P.W-1, complainant, ASI Syed Nasir Ali Shah (Ex-5) and P.W-8, I.O, PI Muhammad Ismail (Ex-12) have admitted these facts. Moreover, the incident had allegedly occurred at 10:25 p.m. on a busy commercial road but no person from the locality and public was associated as witness. P.W-5, eye-witness, HC Sajid Pervaiz (Ex-9) has admitted in-cross-examination that the complainant did not make any effort to associate private persons from the locality as witness. He has also admitted that at the time of incident shop of Iqbal Sheermal was opened. PW-2 ASI Habib-ur-Rehman (Ex.6) has deposed that on receiving information about the police encounter, he reached the place of incident, where complainant ASI Nasir Ali Shah handed over him ML Letter (Ex.7-C) along with injured, he then shifted injured Khalil Khan to Civil Hospital. It is an admitted position that Ex.5-C bears the seal of the Police Station. It does not appeal to a prudent mind that the said complainant was carrying with him the seal of P.S. at the time of incident. No plausible explanation in this regard is available on record, which leads to inference that the alleged injured appellant was not taken to hospital from alleged place of incident but from the police station. 9. It is also matter of record that the clothes of the injured appellant were not secured by the complainant and the I.O, which raises serious doubt regarding the claim of prosecution that after receiving injury, the appellant fell on the ground. Though the prosecution has relied upon SLR of the blood swab, stated to be secured from crime scene, yet the SAR is of no assistance to the case of prosecution, as the same simply shows that the said blood was of human; however, it does not reflect that if the sample was in fact collected from the place of occurrence, as the same has not been shown collected from the alleged crime scene in presence of private mashirs. Another aspect of the case is that the said complainant and mashir have deposed in their respective evidence that the members of Crime Scene Unit (CSU) arrived at place of incident to secure crime empties and bloodstained earth and secured the same without associating any witness. Since the alleged securing of said articles is unattested, it carries no authenticity. In this modern age, every one carries cell phones with camera and even small shop keepers have CCTV Camera at their business places, yet in the instant case, the I.O. made no effort to secure such recording of the incident or it's after math. In the same sequence, it can be noted that the I.O also did not make any inquiry from people of the locality about the alleged police encounter. 10. It may be observed that neither complainant nor I.O. has brought any material on the record to suggest that the appellants have ever involved earlier in any criminal case. C.R.O. reports are silent on the previous criminal record of the appellants. In cases like present one, the role of I.O. is of pivotal nature as the officials of police party, who become PWs, are always subordinates of the complainants. Hence, the responsibility becomes two-fold in the matters where the cases also rest on proving or otherwise of recovery of incriminating articles. Nothing is brought on record to show that the complainant and concerned I.O. had taken any effort to associate private person as witnesses. There is no denial to the fact that our society has serious law and order breakdown, but at the same time accused persons cannot be convicted merely on the basis of allegations. It is alarming to note that cases of police encounter, in which only accused receives injury on specific part of body i.e. leg-calf, known as half-fry, or cases in which neither a police official receives injury nor the vehicle is damaged are rising in our Province. In case of Muhammad Umair and others v. The State (2017 YLR 1097), this Court while setting aside the conviction and sentence awarded by the Trial Court in case of police encounter and sustaining injuries by the accused only, has observed that complainant and prosecution witnesses supported the version of FIR, but such narrative prima facie did not appear to be natural or confidence inspiring for the reasons that despite alleged claim of encounter, neither any of the police official nor vehicle received any scratch. This Court has also held in cited case that the prosecution is duty bound to prove the accusation and could not be benefited from the failure or inability of the defence, and that mere saying of word from the mouth of complainant did not constitute any offence, unless corroborated and a slightly doubt in the prosecution case, benefits the accused. 11. In case of Mehboob-ur-Rehman v. the State (2013 SCMR 106) the Apex Court has set-aside the conviction and sentence of accused/convict by holding that the accused while raising a defense plea was only required to show that there was a reasonable possibility of his innocence and the standard of proof was not similar to that as expected of the prosecution, which had to prove its case beyond any reasonable doubt. In the cases of Muhammad Mansha v. The State (2018 SCMR 772), Muhammad Akram v. The State (2009 SCMR 230) and Tariq Pervaiz v. The State (1995 SCMR 134), it has been held that for giving benefit of doubt, it is not necessary that there shall be many circumstances created doubt, and or single circumstances creating reasonable doubt in a prudent mind about guilt of accused makes him entitle not as a grace or concession, but as a matter of right. 12. For the foregoing facts and reasons, we are of the view that that the prosecution has failed to prove its case against the appellants/accused beyond any reasonable doubt to sustain conviction. 13. These are the reasons of our short Order, dated 31.01.2025, whereby instant appeal was allowed by setting aside the impugned judgment dated 30.05.2024. JK/K-4/Sindh Appeal allowed.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S. 417---Appeal against acquittal---Scope---Double presumption of innocence---Courts are generally reluctant to overturn an acquittal unless it is demonstrated to be perverse, rendered in gross violation of the law, or vitiated by serious errors arising from a grave misreading or complete omission of evidence. Sardaran Bibi v. The State and others 2024 SCMR 1116; The State and others v. Abdul Khaliq and others PLD 2011 SC 554 and Maqsood Alam and another v. The State 2024 SCMR 156 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-J, 506-B & 34---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Medical evidence---No definite conclusion whether death was homicidal or suicidel----Accused were charged for committing murder of daughter of the complainant by administering poison---Woman Medico-Legal Officer, who conducted post-mortem examination of the deceased, concluded that the cause of death was due to the ingestion of insecticide (from the phosphate group), which resulted in cardio-respiratory arrest---Said witness testified that there were no signs of violence on the deceased's body---Prosecution failed to secure any food or material evidence to establish that the deceased was poisoned through ingestion---Said medical witness could not definitively determine whether the cause of death was homicidal or suicidal, thereby creating serious doubt---As a result, the benefit of doubt must be given to the accused---Appeal against acquittal was dismissed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-J, 506-B & 34---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Delay of more than three days in lodging the FIR---Consequential---Accused were charged for committing murder of the daughter of the complainant by administering poison--- Incident occurred on 18.10.2016 at approximately 2:00 PM, while the FIR was lodged on 21-10-2016 at around 6:30 PM, resulting in an unexplained delay of more than three days---Furthermore, a crucial aspect to consider was that if a dying declaration had indeed been made by the deceased, there was no reasonable explanation as to why the complainant did not lodge the FIR on the same day---Given that the complainant was an educated individual, the failure to report the matter promptly raised serious doubts about the prosecution's case---Delay in lodging the FIR had not been satisfactorily explained, which significantly affected the credibility of the prosecution's version---Appeal against acquittal was dismissed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-J, 506-B & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Dying declaration doubtful---Accused were charged for committing murder of the daughter of the complainant by administering poison---Complainant party alleged that the deceased made a dying declaration on 18-02-2016---However, the question arose as to why complainant party remained silent until 21-02-2016, i.e. period of three days---Strong evidence suggested that no such dying declaration was made by the deceased, based on the documents produced by the prosecution---Appeal against acquittal was dismissed, in circumstances. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 337-J, 506-B & 34---Qatl-i-amd, causing hurt by means of a poison, criminal intimidation, common intention---Appreciation of evidence---Call Detail Record not obtained---Effect---Accused were charged for committing murder of the daughter of the complainant by administering poison---Regarding the claim that the deceased's mother called her on her mobile phone and found it switched off, the prosecution failed to produce any evidence to substantiate that claim---In such a scenario, the best available evidence would have been the Call Detail Record (CDR) data, which could have prima facie established whether the call was made---However, the Investigating Officer did not obtain that data from the relevant franchise or service provider to verify whether the deceased's mother had indeed called her or not---Prosecution was duty-bound to obtain the Call Detail Record/ data of both mobile numbers, yet no visible effort was made in that regard---Appeal against acquittal was dismissed, in circumstances. (f) Criminal trial--- ----Benefit of doubt---Principle---Even if slightest doubt is created regarding the prosecution's case, such doubt must be resolved in favour of the accused, and not the prosecution. Mehmood A. Qureshi for Appellant. Muhammad Zareef Lakho, Advocate holding brief for Muhammad Aslam Bhutta for Respondents Nos. 1 to 4. Abrar Ali Khichi, Additional Prosecutor General for the Respondent No. 5/State. Date of hearing: 31st January, 2025. Judgment Jan Ali Junejo, J .--- The appellant has challenged the judgment dated 04-09-2019 (hereinafter referred to as the Impugned Judgment) passed by the learned 1st Additional District and Sessions Judge, Malir, Karachi (Model Criminal Trial Court) in Sessions Case No. 245/2017. The case arose from FIR No. 306/2015, registered at Police Station Quaidabad, Karachi, for offenses under Sections 302, 337-J, 506-B, and 34 of the Pakistan Penal Code (P.P.C). By the Impugned Judgment, the respondents were acquitted of the charges. 2. According to the FIR, on 18-10-2016, between 11:00 AM and 2:00 PM, inside House No. 163/64, Labour Colony, Sector F2, Landhi, Karachi, the accused allegedly assaulted the deceased and issued threats to her, as well as to Mst. Shazia and Mst. Shahnaz. With the assistance of a male co-accused, they purportedly administered poison by mixing it with food, acting with common intention and full knowledge, thereby committing Qatl-e-Amd (intentional murder) of the deceased, Mst. Amna Bibi, daughter of Ubaid Muhammad Khan Niazi, aged 22 years. Consequently, the instant FIR was registered. 3. After completing the investigation, the Investigating Officer submitted the challan. Upon completion of all legal formalities, a formal charge was framed against two accused persons, who appeared for trial at Exhibit-02. Both pleaded not guilty and opted to contest the case, as recorded in their respective pleas at Exhibits 2/A and 2/B. The prosecution examined the following witnesses: ? PW-01 SIP Allah Nawazio (Exhibit-03), who produced the receipt of the dead body (Exhibit-3/A), application to the SHO (Exhibit-3/B), and a copy of the FIR (Exhibit-3/C). ? PW-02 Amir Nawaz (Exhibit-04), who produced the Mushir Nama (Exhibit-4/A). ? PW-03 Safdar Nawaz Khan (Exhibit-05). Subsequently, the prosecution gave up witnesses PC Mubarak Shah and ASI Qayum, as recorded in Exhibit-06. Thereafter, two female accused joined the trial, and police papers were supplied to them at Exhibit-07. An amended charge was framed at Exhibit-08, to which they also pleaded not guilty, as recorded in their respective statements at Exhibits 8/A to 8/D. Further witnesses examined by the prosecution included: ? PW-01 Ubaid Muhammad (Exhibit-09), who produced a memo. (Exhibit-9/A). ? PW-02 Amir Nawaz (Exhibit-10), who produced the memo. of site inspection (Exhibit-11) and the memo. of arrest and recovery (Exhibit-11/A). ? PW-03 Allah Nawazio (Exhibit-12), who presented an entry (Exhibit-13), a letter to the civil hospital (Exhibit-14), a memo. of site inspection (Exhibit-15), an inquest report (Exhibit-16), an arrival entry (Exhibit-17), and the FIR registration entry (Exhibit-18). ? PW-04 Kaleemullah Khan Niazi (Exhibit-19). ? PW-05 Sameeullah Khan (Exhibit-20). ? PW-06 Tasneem Akhtar (Exhibit-21), who produced medical certificate (Exhibit-22), the medical cause of death (Exhibit-23), chemical report (Exhibit-24), and the final medical report (Exhibit-25). The prosecution later gave up witnesses Inayatullah, ASI Abdul Qayum, and PC Mubarak, as recorded in Exhibit-26. ? PW-07 Safdar Nawaz Khan Niazi (Exhibit-27). ? PW-08 Ali Murad (Exhibit-28), who presented an investigation letter (Exhibit-29) and entries (Exhibits 30-32), along with a letter to the chemical examiner (Exhibit-33). After examining all relevant evidence, the prosecution concluded its case and closed its side of the evidence, as recorded in Exhibit-34. The trial court then recorded the statements of the accused persons under Section 342 CrPC, wherein they denied the prosecution's allegations, claiming false implication in the case. 4. The learned counsel for the appellant forcefully argued that the trial Court failed to properly appreciate the prosecution's evidence, despite all witnesses fully supporting the case. He contended that: ? Eye-witness Testimonies: The prosecution witnesses unequivocally corroborated the allegations against the accused, yet their testimonies were disregarded without lawful justification. ? Medical and Forensic Evidence: The medical evidence conclusively established that the deceased died an unnatural death due to poisoning, reinforcing the prosecution's case. ? Motive for the Crime: The accused had a clear motive to administer poison to the deceased, as she was allegedly unable to conceive a child, which led to the commission of the crime. ? Dying Declaration: The deceased made a dying declaration in the presence of witnesses, explicitly naming the accused as the perpetrators. Since a dying declaration holds significant evidentiary value and can serve as the sole basis for conviction, this case warranted a guilty verdict. ? Failure of the Trial Court: The trial court erroneously acquitted the accused by failing to correctly interpret the evidence on record. The impugned judgment suffers from serious legal and factual infirmities, justifying its reversal. On these grounds, the learned counsel prayed that the Impugned Judgment be set aside and the accused be convicted as per law. The learned Additional Prosecutor General (APG) supported the appellant's contentions, agreeing that the impugned judgment warranted interference. In view of these arguments, the learned APG contended that the Impugned Judgment was legally flawed and should be set aside. 5. The brief facts necessary for the disposal of this acquittal appeal are that on 18.10.2016, the mother of the deceased, Amna Khan, attempted to contact her daughter through mobile phone, but the device was continuously powered off. At 11:00 AM, she called again, and although the phone rang, the deceased did not answer. This raised suspicion, prompting the complainant, along with his wife (the mother of the deceased) and three sons-Kaleemullah, Samiullah, and Inayatullah-to visit her residence, which was located on the first floor of House No. 163/164, Labour Colony, Sector F2, Landhi. Upon arrival, they found that the door to her portion of the house was bolted from the outside. After unbolting it, they discovered Amna Khan in a critical condition. Upon inquiry, she disclosed that the accused had mixed poison into her food and administered it to her. She was immediately rushed to Jinnah Postgraduate Medical Centre (JPMC); however, she succumbed to the poisoning during the journey. Upon arrival at JPMC, she was pronounced dead. 6. The learned trial court considered the arguments presented by the defense counsel during the trial, which included the following contentions: ? Voluntary Ingestion of Poison: The defense argued that a fatal quantity of insecticide could only be consumed voluntarily, as its strong odor would naturally deter a person from ingesting it. Therefore, it was improbable that the deceased was forcibly poisoned. ? Alleged Suicide: It was asserted that the deceased had taken her own life due to her alleged involvement in relationships with multiple individuals through her Facebook account, which was operated under the name Faiza Baloch. ? False Implication: The defense contended that the accused had been falsely implicated in the case due to personal enmity and a grudge harbored by the complainant. 7. It is a well-established principle of law that the scope for interference in an appeal against an acquittal is extremely narrow and limited. This is because, in the case of an acquittal, the presumption of innocence is further reinforced, aligning with the fundamental tenet of criminal jurisprudence that an accused is presumed innocent until proven guilty. In other words, the presumption of innocence is effectively doubled. Courts are generally reluctant to overturn an acquittal unless it is demonstrated to be perverse, rendered in gross violation of the law, or vitiated by serious errors arising from a grave misreading or complete omission of evidence. Reference may be made to the legal precedent set by the Hon'ble Supreme Court in Sardaran Bibi v. The State and others (2024 SCMR 1116). 8. In case of (The State and others v. Abdul Khaliq and others "PLD 2011 SC 554"), it is held by the Honorable Apex Court that: "the scope of interference in appeal against acquittal is most narrow and limited because in acquittal the presumption of innocence is significantly added to the cardinal rule of criminal jurisprudence, that an accused shall be presumed to be innocent until proved guilty, in other words, the presumption of innocence is double. The courts shall be very slow in interfering with such an acquittal judgment, unless it shown to be perverse, passed in gross violation of law, suffering from the errors of grave misreading or non-reading of the evidence, such judgments should not be lightly interfered and heavy burden lies on the prosecution to rebut the presumption of innocence which the accused has earned and attained on account of his acquittal. Interference in a judgment of acquittal is rare and the prosecution must show that there are glaring errors of law and facts committed by the courts in arriving at the decision, which would result into grave miscarriage of justice, the acquittal judgment is perfunctory are wholly artificial or a shocking conclusion has been drawn. Judgment of acquittal should not be interjected until the findings are perverse arbitrary, foolish, artificial, speculative and ridiculous. The Court of Appeal should not interfere simply for the reason that on the reappraisal of the evidence a different conclusion could possibly be arrived at, the factual conclusion should not be upset, accept when palpably perverse, suffering from serious and material factual infirmities". In the case of (Maqsood Alam and another v. State, 2024 SCMR 156), held "scope for the accused to be afforded the right of benefit of doubt, it is not necessary that there should be many circumstances creating uncertainty and if there is only one doubt, the benefit of the same must go to the accused". 9. In light of the settled legal principles and guidelines, we have carefully examined the material available on record. According to WMLO Dr. Tasneem Akhter (PW-6), in her testimony, she stated that she conducted the post-mortem examination of the deceased, Amna Khan. She concluded that the cause of death was due to the ingestion of insecticide (from the phosphate group), which resulted in cardio-respiratory arrest. During cross-examination, Dr. Tasneem Akhter testified that there were no signs of violence on the deceased's body. She further explained that, for death to occur due to insecticide poisoning, a certain quantity of poison must be administered. If a lethal dose of poison is mixed with food, the person consuming it would likely detect an unusual odor or taste, potentially causing them to refuse the food. The same principle applies if the poison is mixed with a liquid, as such substances would not be ingested voluntarily without coercion. Moreover, the prosecution failed to secure any food or material evidence to establish that the deceased was poisoned through ingestion. Ultimately, Dr. Tasneem Akhter could not definitively determine whether the cause of death was homicidal or suicidal, thereby creating serious doubt. As a result, the benefit of the doubt must be given to the accused. 10. Upon careful examination of the record, it is evident that the incident occurred on 18.10.2016 at approximately 2:00 PM, while the FIR was lodged on 21-10-2016 at around 6:30 PM, resulting in an unexplained delay of more than three days. Furthermore, a crucial aspect to consider is that if a dying declaration had indeed been made by the deceased, there is no reasonable explanation as to why the complainant did not lodge the FIR on the same day. Given that the complainant was an educated individual, the failure to report the matter promptly raises serious doubts about the prosecution's case. The delay in lodging the FIR has not been satisfactorily explained, which significantly affects the credibility of the prosecution's version. In this context, the Hon'ble Supreme Court has previously drawn an adverse inference regarding unexplained delays in FIR registration. 11. As per the record of the learned Trial Court, the prosecution examined eight witnesses, including five private witnesses. However, none of them testified that they had seen any accused person actually administering poison to the deceased or heard the accused conspiring to commit the crime. According to the Investigating Officer (IO), SIP Allah Nawazio, he deposed before the Trial Court that he had offered the complainant the opportunity to record his statement under Section 154 of the Cr.P.C. on the day of the incident. However, the complainant stated that he would appear at the police station to record his statement after the Soyem (third-day ritual). PW Samiullah, the brother of the deceased, testified before the Trial Court that the deceased, Amna Khatoon, was happy with her in-laws, which clearly indicates that there was no dispute between her and her husband. 12. Furthermore, the complainant party alleged that the deceased made a dying declaration on 18-02-2016. However, the question arises as to why they remained silent until 21-02-2016, a period of three days. There is also strong evidence suggesting that no such dying declaration was made by the deceased, based on the documents produced by the prosecution. Firstly, the prosecution presented DD Entry No. 26, marked as Exhibit 13, before the learned Trial Court. This was the departure entry of ASI Allah Nawazio after receiving information about the incident. The entry, recorded at 1700 hours, states that Samiullah, the deceased's brother, reported that Amna, wife of Javaid Iqbal, had been taken to Jinnah Hospital due to the ingestion of poisonous medicine. The wording of this entry clearly reflects the true facts, and a plain reading of it does not indicate that the deceased was deliberately poisoned. Regarding the claim that the deceased's mother called her on her mobile phone and found it switched off, we are of the view that the prosecution failed to produce any evidence to substantiate this claim. In such a scenario, the best available evidence would have been the Call Detail Record (CDR) data, which could have prima facie established whether the call was made. However, the IO did not obtain this data from the relevant franchise or service provider to verify whether the deceased's mother had indeed called her or not. The prosecution was duty-bound to obtain the CDR data of both mobile numbers, yet no visible effort was made in this regard. 13. The entire prosecution case is riddled with inconsistencies and creates serious doubts. The policy of law is clear: The benefit of the doubt must go to the accused, as consistently held by the Honourable Apex Court. It is a well-settled principle of law that if even the slightest doubt is created regarding the prosecution's case, that doubt must be resolved in favour of the accused, not the prosecution. Furthermore, it is an established legal principle that no one should be convicted under a cloud of doubt or uncertainty. 14. A careful examination of the evidence on record reveals that the prosecution has failed to establish its case against the accused (Respondents) beyond a reasonable doubt. The Trial Court rightly granted the benefit of the doubt to the accused, resulting in their acquittal. The impugned judgment is free from arbitrariness or misinterpretation of evidence, and no strong or compelling grounds exist to warrant interference with the acquittal. Hence, the instant Criminal Acquittal Appeal was dismissed vide our short order dated 31.01.2025 and these are the reasons thereof. JK/O-2/Sindh Appeal dismissed.

Summary: Evacuee Trust Properties (Management and Disposal) Act (XIII of 1975)--- ----Ss.8 & 10---Cancellation of allotment in reference proceedings declaring the land to be evacuee property---Non-impleadment of petitioners in the proceedings---Effect---Non-fulfillment of requirements as envisaged in S.10(1) of the Evacuee Trust Properties (Management and Disposal) Act, 1975---Effect---Absence of procedural compliance and non-determination as to bona fides qua allotment---Effect---Revision filed by the petitioners was dismissed being barred by time having knowledge on account of issuance of notices---Contention of the petitioners was that they had been condemned unheard---Validity---Respondent-Board admitted that petitioners were not made party to the reference filed before the Chairman of the Board, therefore, attributing knowledge to the petitioners through issuance of notices was beyond comprehension and this fact alone militated against the findings recorded by respondent in the order that the revision filed by the petitioners was barred by limitation---No determination was made in the orders that the allotment of land in favour of original allottee was lacking in bona fide and the process requirements for holding of the inquiry by the Chairman of the Board as envisaged in S.10(1) of the Act were also not met with---Constitutional petitions were allowed and orders were set aside with the direction that the matter shall be deemed to be pending before the Chairman of the Board, who shall decide the same afresh in accordance with law after hearing both the parties. Syed Salman Haider Jaffari for Petitioners (in Writ Petition No. 7411 of 2023). Mian Muhammad Aslam Pervaiz for Petitioner (in Writ Petition No. 41334 of 2022). Nemo for Petitioner (in Writ Petition No. 21099 of 2022). Mian Abdul Sattar Ijaz for Respondents Nos. 2 and 3/ETPB. Sheraz Zaka, Assistant Attorney General for the State. Order Shams Mehmood Mirza, J.--- This order shall decide the present writ petition as well as connected Writ Petitions No.41334 of 2022 and No.21099 of 2022 on account of similarity of facts and the order that is under challenge in all the petitions. 2. For the purposes of this order only the facts of the present case shall be stated. 3. The facts of the case in brief are that the land in question measuring 43 Kanal 10 Marla situated in Chak Shumali Tehsil and District Jhang was originally allotted to one Bismillah Begum through RL-II dated 03.07.1961 by the Settlement Department. The petitioners are subsequent purchasers of the said property through registered sale deeds executed in the year 1993. The Deputy Administrator Evacuee Trust, Jhang filed a reference under sections 8 and 10 of the Evacuee Trust Property (Management and Disposal) Act, 1975 (the Act) for declaring the land in question as evacuee trust property and for cancellation of RL-II No.18 dated 03.07.1961. The Chairman, Evacuee Trust Property Board (the Board) through order dated 04.06.2005 cancelled the allotment in favour of Bismillah Begum by declaring the land in question to be evacuee property. The petitioners acquired knowledge of the proceedings when notice dated 28.11.2018 was served on them by Deputy/Assistant Administrator, Jhang for their eviction. The petitioners soon thereafter filed a revision before the Secretary, Ministry of Religious Affairs and Interfaith Harmony/respondent No.2 which dismissed on 10.06.2020. was 4. Learned counsel submit that the petitioners were not made a party in the reference filed before the Chairman of the Board and as such they were condemned unheard. It is stated that respondent No.2 declared the revision to be barred by limitation and also did not take into account section 10 of the Act. Learned counsel for the Board, on the other hand, supported the order passed by respondent No.2. 5. Argument heard, record perused. 6. Respondent No.2 in the impugned order clearly held that the petitioner had notice of the proceedings of the reference initiated before the Chairman of the Board and thus their revision was barred by limitation. In this regard, it was stated in the impugned order that "....several notices were issued to the all concerned which prima facie establishes the awareness/knowledge of the petitioners about the proceedings...". Learned counsel for the Board admitted that the petitioners were not made party to the reference filed before the Chairman of the Board. That being the case, attributing knowledge to the petitioners through issuance of notices is beyond comprehension. This fact alone militates against the findings recorded by respondent No.2 in the impugned order that the revision filed by the petitioners was barred by limitation. 7. Section 10 of the Act in so far it is relevant reads as under: 10. Validation of certain transfers.--(1) An immovable evacuee trust property.-- (a) if situated in a rural area and utilised bona fide under any Act prior to June 1964, for allotment against the satisfaction of verified claims; and (b) ?.. shall be deemed to have been validly transferred by sale to the Chief Settlement Commissioner, and the sale proceeds thereof shall be re-imbursed to the Board and shall form part of the Trust Pool. (2) If a question arises whether a transaction referred to in subsection (1) is bona fide or not, it shall be decided by the Chairman whose decision shall be final and shall not be called in question in any Court. 8. The import of section 10 (1) of the Act is clear that any bona fide allotment of evacuee property situated in rural area prior to June 1968 against satisfaction of the verified claims shall be deemed as a valid transfer and in such eventuality the only remedy available to the Board is to claim the sale proceeds from the Chief Settlement Commissioner. 9. The provisions contained in section 10(1) of the Act require the Chairman of the Board to investigate in the first place whether the property is in fact an evacuee property or not. Having crossed this threshold, the Chairman is then required to inquire into the bona fides of the transaction for allotment of evacuee property against duly verified claims. This stage of inquiry necessitates recording of evidence of the Settlement Department or at least a statement on oath by any of its officials. The persons in whose favour the allotment was made by the Settlement Department or their successors, as the case may be, are mandatorily required to be heard by the Chairman of the Board. It is only after the completion of all these stages of the inquiry that the Chairman of the Board can make a determination that the transaction of allotment of evacuee property lacked bona fide or otherwise. If an order is made to the effect that allotment was bona fide it shall constitute transfer by sale of the evacuee property in favour of the Settlement Department thereby entitling the Board to receive the sale proceeds from the Settlement Department. 10. In the present case, neither the Chairman of the Board nor respondent No.2 in their impugned orders made any determination that the allotment of land in favour of Bismillah Begum was lacking in bona fide. Similarly, the process requirements for holding of the inquiry by the Chairman of the Board were also not met with. The orders passed by the Chairman of the Board and respondent No.2 do not meet the requirements imposed by section 10 (1) of the Act. 11. In this view of the matter, orders dated 04.06.2005 and 10.06.2020 passed by the Chairman of the Board and respondent No.2 respectively are not sustainable in the law and facts of the case. This writ petition is accordingly allowed and orders dated 04.06.2005 and 10.06.2020 are set aside with the result that the matter shall be deemed to be pending before the Chairman of the Board who shall decide the same afresh in accordance with law after granting hearing to the petitioners and the Settlement Department. The connected writ petitions are also allowed. SA/M-82/L Petitions allowed.

Summary: Criminal Procedure Code (V of 1898)--- ----S.498---Penal Code (XLV of 1860), Ss.324 & 34, 337-F(vi)---Attempt to commit qatl-i-amd, common intention, munaqqilah---Pre-arrest bail, grant of---Further inquiry---Applicant No.1 allegedly caused firearm injury to the injured, resulting in a through-and-through wound on the left leg---Existence of matrimonial dispute between the parties was admitted---Injury on non-vital part had not been declared by the Medical Legal Officer (MLO) to be fatal for the life of injured---There was no repetition of fire shot---If contents of the FIR were presumed to be true, even then presumption would be that he had no intention to commit qatl-i-amd of the injured witness---Presence of co-accused was alleged without any role or overt act---Applicability of S.324, P.P.C was yet to be established by the prosecution after recording of evidence---Injury sustained by the injured party was punishable under S.337-F(vi), P.P.C, with a maximum punishment of seven years, thus, the case of the applicant did not fall within the prohibitory clause of S.497, Cr.P.C.---Basic ingredients for granting pre-arrest bail were present in the case due to the non-fatal nature of the injury, lack of intention to commit murder, and potential mala fide on the part of the prosecution---Case against the applicants was found to be one of further inquiry----Pre-arrest bail application was allowed, in circumstances. Muhammad Ramzan v. Rahib and others PLD 2010 SC 585 ref. Rana Muhammad Arshad v. Muhammad Rafique and another PLD 2009 SC 427 and Khaleel Ahmed Soomro and others v. The State PLD 2017 SC 730 rel. Sardar Sheeraz Anjum for Applicants. Ms. Rubina Qadir, Deputy Prosecutor General, Sindh for the State. Abdul Basir for the Complainant. Date of hearing: 12th August, 2024. Order Muhammad Saleem Jessar, J.--- Through this application, applicants Wahid Khan and Rab Nawaz Khan seek their admission on pre-arrest bail in Crime No. 234/2024 of Police Station Zaman Town, Karachi, under Sections 324 and 34, P.P.C read with Sections 337-F(vi) (iii) and 201, P.P.C. The applicant preferred his anticipatory bail before the Court of Sessions, which was assigned to 12th Addl. Sessions Judge, Karachi (East), who after hearing the parties, has turned down his request through order dated 21.05.2024. The case has been challaned which is now pending for preliminary proceedings before the Judicial Magistrate having jurisdiction in terms of dicta laid down by Hon'ble Supreme Court of Pakistan in case of Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585) Hence, instant bail application has been maintained. 2. The crux of the prosecution case are that applicant Wahid Khan allegedly caused pistol shot injury to injured PW Muhammad Saleem which landed on his left leg: whereas, applicant Rab Nawaz has been shown no role or avert act except mere his presence. The injury allegedly sustained by PW Muhammad Saleem has been opined by the Medico Legal Officer to be punishable under Section 337-F(vi), P.P.C; hence, this FIR. 3. Learned counsel for the applicants submits that applicant No.2 Rab Nawaz Khan had married with daughter of injured PW Muhammad Saleem, who (wife of applicant No.2) had joined Government Job, therefore, she was restrained by her husband/applicant No.2 not to perform her job; hence, she left her house without consent or permission of her husband; hence, applicant No.2 had contracted second marriage, which annoyed the complainant party, therefore, they have managed this case though no such offence, as alleged, has taken place. As far as, role attributed to applicant Wahid Khan is concerned, learned counsel submits that role attributed to him is of causing fire arm injury which is on non-vital part of the body; besides, said offence carries maximum punishment up to seven years, therefore, case against him requires further inquiry. 4. Learned Deputy P.G, Sindh appearing for the State opposes the bail application on the ground that both accused are nominated in the FIR; besides, role of causing fire arm injury is assigned to applicant No.1 Wahid Khan to injured PW Muhammad Saleem and applicant No.2 Rab Nawaz Khan being facilitator, therefore, both are not entitled for the bail. 5. Learned counsel for the complainant while adopting arguments advanced by learned Deputy P.G, Sindh, also opposes the bail application and submits that there are 16 witnesses of the prosecution case and all those have supported the version of the prosecution in their respective 161 Cr.P.C statements. 6. Heard arguments and perused record. No doubt, applicants are nominated in the promptly registered FIR; however, role attributed to applicant Wahid Khan is that he allegedly caused fire arm shot injury to injured PW Muhammad Saleem, which landed on his left leg and became through and through. It being on his non-vital part of the body, has not been declared by the MLO to be fatal for the life of injured. No allegation for repetation of fire arm has been assigned or levelled, therefore, if contents of the FIR may be presumed to be true, even then presumption would be termed that he had no intention to commit Qatl-i-Amd of the injured PW Muhammad Saleem, as alleged. Therefore, application of section 324, P.P.C is yet to be established by the prosecution after recording its evidence. As far as injury sustained by the injured is concerned, same has been declared by the MLO to be punishable under Section 337-F(vi) P.P.C which carries maximum punishment up to seven years; hence, does not exceed limits of prohibitory clause of section 497, Cr.P.C. 7. In view of matrimonial dispute between the parties, mala fide on the part of prosecution cannot be denied; hence, basic ingredients for grant of pre-arrest bail, as enshrined by the Hon'ble Supreme Court of Pakistan in case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427), are fully attracted in this case. 8. As far as, role of applicant No.2 Rab Nawaz Khan is concerned, his mere presence has been shown, that too is yet to be established by the prosecution before the trial Court at the time of evidence. I am fortified with the dicta laid down by the Honourable Supreme Court of Pakistan in case of Khaleel Ahmed Soomro and others v. The STATE (PLD 2017 SC 730). 9. In the circumstances and in view of above discussion as well as dicta laid down by learned Apex Court in cases of Khaleel Ahmed Soomro v. The State (Supra) and Rana Muhammad Arshad v. Muhammad Rafique and another (Supra), case against applicants requires further inquiry. Consequently, instant bail application is hereby allowed; interim bail granted earlier to applicants Wahid Khan son of Hameedullah Khan and Rab Nawaz Khan son of Wahid Khan on 23.05.2024 is hereby confirmed on same terms and conditions. 10. Applicants present before the Court are directed to continue their appearance before the trial Court without negligence and in case they may misuse the concession or may temper with the prosecution's evidence then the trial Court would be competent to take legal action against them as well to their surety in terms of Section 514, Cr.P.C. 11. Let copy of this Order be communicated to trial Court through learned Sessions Judge, concerned. Learned MIT-II to ensure compliance. SA/W-2/Sindh Application allowed.

Summary: Family Courts Act (XXXV of 1964)--- ---- S.5, Sched.---Constitution of Pakistan, Art. 199--- Constitutional petition--- Maintenance allowance--- Concurrent findings of facts by two Courts below--- Petitioner / ex-husband of respondent and father of two minor children, was aggrieved of fixation of maintenance allowance and direction to pay past maintenance and that of Iddat period--- Validity--- Determination by two Courts below that petitioner was liable for paying maintenance of respondents and the amount set was appropriate per child--- This was a finding of fact within the exclusive jurisdiction of two Courts below--- Petitioner could have challenged such findings in High Court's limited Constitutional jurisdiction, had he demonstrated that such findings were unsupported by evidence or resulted from a misinterpretation of evidence--- High Court declined to interfere in concurrent findings of facts by two Courts below, which were thoroughly evaluated and assessed and the conclusions were well reasoned--- Constitutional petition was dismissed, in circumstances. Ayesha Hashmat Kamal v. Additional District Judge 2024 CLC 141; Tariq Javed v. Rukhsana Bibi 2023 YLR 2233; Muhammad Asim v. Samro Begum PLD 2018 SC 819; Nazia Bibi v. Additional District Judge PLD 2018 Lah. 916; Farzana Rasool v. Muhammad Bashir 2011 SCMR 1361; Arif Fareed v. Bibi Sara 2023 SCMR 413 ; Farhat Jabeen v. Muhammad Safdar 2011 SCMR 1073; Unreported judgment of High Court of Sindh, Circuit Court Hyderabad in C.P. No. S-466/2021 dated 6.12.2021; Muhammad Asim v. Samro Begum PLD 2016 SC 819; Utility Stores Corporation v. Punjab Labour Appellate Tribunal PLD 1987 SC 447; Secretary to the Government of Punjab v. Ghulam Nabi PLD 2001 SC 415; Hyderabad Development Authority v. Province of Sindh 2023 PLC 49; Khuda Bukhsh v. Muhammad Sharif 1974 SCMR 279; Waqar Haider Butt v. Judge, Family Court 2009 SCMR 1243; Dadex Etemit Ltd v. Sindh Labour Appellate Tribunal 2020 PLC 200 ; United Bank Limited v. Jamil Ahmed 2024 SCMR 164; Muhammad Nawaz v. Member Judicial Board of Revenue 2014 SCMR 914; M. Hamad Hassan v. Isma Bakhari 2023 SCMR 1434; Begum Wazir Ahmad v. Niaz Begum PLD 1976 SC 214; Ali Muzaffar v. Muhammad Ali Abedi 2006 CLC 379 and Iffat v. Umar Farooque PLD 2022 Sindh 61; rel. Naveed Ali for Petitioner. Shahzeb Akhtar Khan for Respondent No. 1. Ms. Deeba Ali Jafri, Additional Advocate General for the State. Dates of hearing: 5th March and 7th September, 2024. Order Sana Akram MInhas, J.--- The Petitioner has filed the present Petition to contest the concurrent findings against him of the two courts below. He is aggrieved by the judgment and decree dated 5.1.2022, and 8.1.2022, issued by the Trial Court, which ruled in favor of Respondent No.1 in Family Suit No.700/2018 (Amber Mughal and others v. Faisal Athar Hussain) ("Family Suit"). Furthermore, the Petitioner challenges the subsequent judgment and decree dated 23.11.2022, of the Additional District Judge-VII (MCAC) Karachi (South), which dismissed the Petitioner's Family Appeal No.45/2022 (Faisal Athar Hussain v. Amber Mughal and others) ("Family Appeal") and upheld the Trial Court's decision. 2. The Petitioner is the former husband of the Respondent No.1 and the father of the Respondents Nos.2 and 3 (both of whom were minors at the relevant time). The official Respondents Nos.4 and 5 are the Presiding Officers of the learned Courts who have decreed the Respondent No.1's Family Suit and dismissed the Petitioner's Family Appeal respectively. 3. The Petitioner and the Respondent were married on 25.6.2002 and divorced on 22.7.2015. On 25.4.2018, the Respondent No.1 instituted Family Suit seeking the recovery of dowry articles and maintenance. Both parties presented their evidence, and subsequently, the Trial Court issued a Judgment and decree, granting relief only in regard to maintenance. The Court's decision included the following: i) Maintenance for Respondent No.1 during the "iddat" period of 3 months at a rate of Rs. 15,000/- per month; ii) Past maintenance for Respondent No.1 amounting to Rs. 1,775,335/-; iii) Maintenance for the minors (Respondents Nos.2 and 3) at a rate of Rs.30,000/- per month per child from the filing of the Family Suit to the present date, with future maintenance continuing at the same rate and an annual increment of 10% until they reach legal entitlement or marriage. 4. The core issue agitated by the learned Counsel for the Petitioner was that the past and future maintenance amount awarded to the Respondents Nos.1 to 3 is excessive and/or exceeds the Petitioner's financial capacity. He averred that both the Courts below failed to properly consider the evidence, resulting in arbitrary judgment(s) and decree(s), urging this Court to set aside them. Conversely, the learned Counsel for Respondent No.1 has argued for the affirmation of the impugned judgment(s) and decree(s), contending that they are strictly in accordance with the law and record and were rendered in the light of the Petitioner's concealment of resources and refusal to divulge any details of his assets, bank accounts etc. Both Counsel presented case law to back up their submissions. 1 5. The rival submissions have been duly evaluated and the record considered. 6. Addressing the central issue, the Trial Court's impugned judgment noted that the Petitioner held multiple jobs and testified during cross-examination that he worked part-time from September 2017 to October 2019. Yet, in his written statement (dated 20.10.2018 in paragraph 17), he claimed to have been unemployed for the past 21 months. This, therefore, diminished the credibility of his unemployment claim. Before the Appellate Court, the Petitioner argued (as recorded in the Appellate impugned judgment), that he had been financially impacted and rendered jobless due to NAB Reference No.7/2010, making it impossible for him to meet the maintenance amount ordered by the Trial Court for his minor children. 7. It is important to highlight that before this Court, the Petitioner has not claimed unemployment or weak financial position in the memo. of Petition. Even otherwise, by simply alleging unemployment, the father cannot absolve himself of his responsibility in maintaining his children, nor does it relieve him of his duty to support them 2 . 8. When a father obstructs a court's ability to accurately determine or to reach a just evaluation as to his earning or payment capacity, his assets, savings or bank accounts etc-through wilful misdeclaration or non-disclosure or by concealing his source of income the court is entitled and justified to draw an adverse inference. 3 9. Considering that the Petitioner has invoked the constitutional jurisdiction of this Court under Article 199 of the Constitution of Pakistan, 1973, it is important to recall some of the established legal parameters that have evolved over time for this jurisdiction. These fundamental guidelines include: i) If a lower forum makes an error of law in deciding a matter, it creates a jurisdictional issue, as the forum is only authorized to decide matters correctly. Such a decision can be nullified under constitutional jurisdiction for being in excess of the law; since Article 4 of the Constitution guarantees an individual the right to be dealt with in accordance with the law and when the law is incorrectly or improperly applied, it becomes appropriate for the High Court to Intervene and exercise its constitutional jurisdiction. 4 ii) Where the forums available within the legal hierarchy have resolved all controversial issues based on the record and in accordance with the law, the High Court's scope of interference is limited, as it cannot delve into disputed questions of fact when exercising its constitutional jurisdiction. 5 iii) The High Court in its constitutional jurisdiction would not interfere with findings of fact recorded by competent courts, tribunals, or authorities, unless such findings result from, inter alia, a misreading or non-reading of evidence, are based on no evidence or there is a clear error of law that warrants correction. 6 iv) Concurrent findings of fact by fora below cannot be overturned unless they suffer from jurisdictional defects, involve a failure to properly read or interpret the evidence on record, are perverse or physically impossible. 7 v) A finding does not become sacrosanct merely because it is concurrent; it attains that status if it is based on a proper appraisal of the evidence. If the concurrent findings recorded by the lower forums violate the law, suffer from jurisdictional defects, or are based on errors evident from the record, they cannot be regarded as so sacrosanct or inviolable that they cannot be reversed or corrected by the High Court in its constitutional jurisdiction 8 . vi) Disputed questions of fact cannot be entered into or re-agitated under constitutional jurisdiction. Article 199 of the Constitution cannot serve as a substitute for a revision or an appeal, or be used to convert constitutional jurisdiction into appellate jurisdiction 9 . vii) Simply because an alternative conclusion might be drawn from a reappraisal of facts or evidence, the High Court cannot interfere in its constitutional jurisdiction 10 . viii) The High Court will be slow in exercising constitutional jurisdiction when a statute provides an appeal and the remedy has either been availed or declined, unless it is shown that the action or order is clearly without jurisdiction and violates principles of justice 11 . 10. Recent Supreme Court judgment in the case of Arif Fareed v. Bibi Sara 12 has expressed concern about the frequent recourse to the High Court, given that the Family Courts Act, 1964 does not allow for a second appeal. The Apex Court observed that the legislature intended to conclude family litigation after the appellate court's decision. However, the extraordinary Jurisdiction under Article 199 of the Constitution is used as a substitute for appeal or revision, undermining the statute's goal of expeditious case resolution. While some cases may warrant intervention, many do not fall within this exception. 11. Similarly, In M. Hamad Hassan v. Isma Bukhari 13 (which case also pertained to payment of maintenance by the father), the Supreme Court drawing upon Arif Fareed decision, reiterated that the right to appeal is a statutory provision and if the legislature intended for two appeals, it would have specified it. Without a provision for a second appeal, the appellate court's decision is final on facts and the High Court should not offer another opportunity of hearing, particularly in family cases where the goal is to avoid prolonged disputes. Once a matter is decided by the trial and appellate courts, constitutional courts should not re-evaluate facts or substitute their opinions. Accepting the finality of appellate court decisions is crucial for resolving disputes conclusively, preventing unnecessary litigation, and respecting the legislature's intent for a definitive resolution. 12. Turning to the matter at hand, the determination by the Family Court and the Additional District Judge that the Petitioner was liable for paying maintenance for the Respondents Nos.1 to 3 and that the amount set was appropriate per child was a factual finding within their exclusive jurisdiction. The Petitioner perhaps could have challenged these findings in this Court's limited constitutional jurisdiction had he demonstrated that they were unsupported by evidence or resulted from a misinterpretation of the evidence. However, except for a bare assertion, the Petitioner's Counsel failed to show how these findings were either unsupported by evidence or misread. 13. Both the Trial Court and the Appellate Court have reached concurrent factual findings against the Petitioner, having thoroughly evaluated and assessed the evidence presented by the parties and provided well-reasoned conclusions. Therefore, there is no basis for interference under Article 199 of the Constitution, which is intended for exceptional circumstances that are not present here. Consequently, the present Petition is dismissed, along with any pending applications. Each party shall bear its own costs. MH/F-4/Sindh Petition dismissed.

Summary: (a) Educational Institution--- ----Medical education---Petitioners applied for induction in the FCPS/MD/MS course against quota reserved for foreign seats for Post Graduate Residency Program---Change of Policy was made through a notification regarding non-consideration of marks of Matriculation (SSC) and Intermediate (HSSC) for the candidates, who had applied for foreign quota seats---Retrospective effect of such notification---Scope---Beneficial/earlier notification was in field at the time of advertisement containing the policy for induction in Postgraduate Residency Program and it was the terms of that notification that would govern the induction process---Amendment in the rules/policies cannot operate retrospectively for taking away the vested rights of the parties---Constitutional petition was dismissed accordingly (b) Interpretation of statutes--- ----Amendment in the rules/policies---Scope---Amendment in the rules/policies cannot operate retrospectively for taking away the vested rights of the parties. Muhammad Nadeem Iqbal Zahid for Petitioners. Mian Abdul Sattar Ijaz for Respondent No. 3. Barrister Ch. Muhammad Umar for Respondents Nos. 6 and 7. Dr. Habib Ullah, Deputy Registrar PM&DC, Regional Officer, Lahore. Barrister Hassan Khalid Ranjha, Additional Advocate General. Raaj Maqsood, Law Officer. Sheraz Zaka, Assistant Attorney General. Order Shams Mehmood mirza, J.--- This order shall decide the present writ petition as well as connected Writ Petition No.48425 of 2023 on account of similarity of facts and the challenge made to notification dated 14.07.2023. 2. The facts of the case in brief are that the petitioners applied for induction in FCPS/MD/MS course on foreign quota for Post Graduate Residency Program. The advertisement in this regard was carried out on 29.05.2023 and the cut-off date for filing of the application was 05.06.2023. At the relevant time, notification dated 11.03.2021 issued by the Specialized Healthcare and Medical Education Department, Government of Punjab was in force under which 2% quota was allocated to foreign seats and a formula was also provided for awarding points to the candidates applying for the course. The foreign candidates were required to obtain equivalence of their educational testimonials from Inter Board Coordination Committee/respondent No.6. 3. The petitioners applied online for induction in the Postgraduate Residency Program and their names were mentioned in the provisional merit list issued on 03.07.2023. 4. Specialized Healthcare and Medical Education Department, Government of Punjab on 14.07.2023 issued a notification stating that the marks of Matriculation (SSC) and Intermediate (HSSC) in terms of clause 13(5) of Notification dated 11.03.2021 (as modified by notification dated 19.05.2023) shall not be considered for the candidates who have applied against foreign quota seats. 5. The petitioners contend that notification dated 14.07.2023 cannot be given retrospective operation for depriving the petitioners' candidature who were otherwise eligible for induction in the Postgraduate Residency Program as per the formula provided for in notification dated 11.03.2021. 6. Report and parawise comments have been filed on behalf of respondent No.2 in which it is stated that notification dated 14.07.2023 was issued to keep all the candidates, local and foreign, at par with each other and to make the induction process transparent and merit basis. 7. The only law point involved in these petitions is whether respondent No.2 could issue notification dated 14.07.2023 for applying it to the induction process that had already commenced on 29th May, 2023. As noted earlier, at the time of advertisement notification dated 11.03.2021 was in field containing the policy for induction in Postgraduate Residency Program. It is the terms of this notification that would govern the induction process. The rights of the candidates applying for the post of Postgraduate Residency Program stood crystalized when the advertisement was carried out on 29.05.2023 and applications were filed pursuant there to. It is settled law that amendment in Rules/Policies cannot operate retrospectively for taking away the vested rights of the parties. Reference in this regard may be made to the judgments reported as Lt. Muquddus Haider v. Federal Public Service Commission through Chairman, Islamabad 2007 PLC (C.S.) 229 and Muhammad Zubair Khan Niazi v. Chief Secretary and others PLJ 2017 Lahore 814. 8. In the circumstances, this writ petition is allowed and it is declared that notification dated 14.07.2023 has no retrospective effect on the induction process for Postgraduate Residency Program which was initiated on 29.05.2023. The respondents are accordingly directed to prepare the merit list in accordance with notification dated 11.03.2021. SA/A-48/L Petition allowed.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Contradictions in the statements of witnesses---Accused were charged for committing murder of the father of complainant by firing---Ocular account had been furnished by complainant/son and brother of the deceased---Case of the complainant was that his father received the fire shot when he was present at the door of his cattle-shed/haveli while the stance of other witness was that there was cattle-shed/haveli of the deceased adjacent to the place of occurrence and deceased received the fire shot when he was present at a raised platform---Circumstances established that the prosecution could not prove its case against the appellant beyond any shadow of doubt---Appeal against conviction was allowed accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Presence of the complainant at the spot not proved---Accused were charged for committing murder of the father of complainant by firing---Complainant deposed that the deceased in injured condition was shifted to the police station on a motorcycle---Clothes of complainant were stained with the blood of deceased while shifting to the police station but admittedly no such blood-stained clothes of the complainant/eye-witness had been secured or produced by Investigating Officer---In these circumstances, it was concluded that complainant produced by the prosecution was not reliable and in all likelihood he had not witnessed the murder in issue---Appellant mounted assault as per prosecution's own case to settle score with complainant for allegedly having exchange of hot words with him---Site plan positions would show that complainant, the other witnesses and the deceased were at the mercy of the appellant but being the prime target even no threat was extended to complainant---As per prosecution's own case the appellant and complainant were face to face at the time of occurrence and said witness was well within the view and reach of appellant but astonishingly the appellant let the said witness go unhurt who was the prime target of assault---No other inference could be drawn from such circumstances other than that either said witness was not present at the scene or the occurrence took place in a backdrop other than the one narrated in the FIR---If any such altercation took place between the appellant and complainant then the prime target for the appellant should have been the said witness---Circumstances established that the prosecution could not prove its case against the appellant beyond any shadow of doubt---Appeal against conviction was allowed accordingly. Mst. Mir Zalai v. Ghazi Khan and others 2020 SCMR 319; Rafaqat Ali alias Foji and another v. The State and others 2024 SCMR 1579; Mst. Rukhsana Begum and others v. Sajjad and others 2017 SCMR 596; Waris Ali and 5 others v. The State 2017 SCMR 1572 and Tariq Mehmood v. The State and others 2019 SCMR 1170 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Night time occurrence---No source of light mentioned in FIR---Accused were charged for committing murder of the father of complainant by firing---Record showed that it was a night time occurrence and no source of light had been mentioned in the FIR, so there were chances of mistaken identity of the accused---Circumstances established that the prosecution could not prove its case against the appellant beyond any shadow of doubt---Appeal against conviction was allowed accordingly. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of the father of complainant by firing---Motive behind the occurrence was that on a few occasions before the occurrence, hot words were exchanged between the complainant and the appellant and due to that revenge, the appellant committed murder of his father---As per complainant, the place of motive incident was a very busy place but as conceded by him, he had not mentioned the name of any eye-witness regarding the motive incident---Even no detail of motive as to on what issue the hot words were exchanged between them was given by the complainant--- Investigating Officer also narrated during cross-examination that no witness joined the investigation before him in support of the motive, narrated by the complainant in the FIR---No independent witness qua motive was brought in the witness box at the time of trial---Therefore, the prosecution had not been able to substantiate alleged motive against the appellant---Circumstances established that the prosecution could not prove its case against the appellant beyond any shadow of doubt---Appeal against conviction was allowed accordingly. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Criminal Procedure Code (V of 1898), S.103---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of weapon of offence---Accused were charged for committing murder of the father of complainant by firing---Record showed that .12-bore repeater gun was recovered at the instance of appellant which was taken into possession---Said recovery was inconsequential for the reason that the prosecution had failed to associate any independent witness of the locality as was evident from the recovery memo, which bore the signatures of the Police Officials as recovery witnesses---Thus, the mandatory provisions of S.103, Cr.P.C. had flagrantly been violated in that regard---Circumstances established that the prosecution could not prove its case against the appellant beyond any shadow of doubt---Appeal against conviction was allowed accordingly. Muhammad Ismail and others v. The State 2017 SCMR 898 rel. (f) Criminal trial--- ----Medical evidence---Scope---Medical evidence is just a corroborative piece of evidence and can only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc. and never identifies the real assailant. Munawar Ali alias Munawar Hussain v. The State PLD 1993 SC 251; Machia and others v. State PLD 1976 SC 695 and Muhammad Jahangir and another v. The State and others 2024 SCMR 1741 rel. (g) Criminal trial--- ----Benefit of doubt---Principle---Prosecution has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. (h) Criminal trial--- ----Benefit of doubt---Principle---If there is a single circumstance which creates doubt regarding the prosecution case, the same will be sufficient to give benefit of doubt to the accused. Muhammad Akram v. The State 2009 SCMR 230 rel. Muhammad Irfan Malik for the Appellant. Munir Ahmad Sial, Addl. Prosecutor General for the State. Muhammad Ihsan Gondal for the Complainant. Date of hearing: 17th February, 2025. Judgment Sardar Akbar Ali, J .--- Muhammad Amjad (appellant) along with his co-accused namely Muhammad Usman was tried by the learned Addl. Sessions Judge, Bhalwal in case FIR No.104 dated 29.02.2020, offence under Sections 302 and 34, P.P.C registered at Police Station Bhera District Sargodha for the murder of Muhammad Farooq (deceased) father of complainant. Vide judgment dated 18.11.2021 passed by the learned trial court, the appellant has been convicted under Section 302(b), P.P.C and sentenced to death, with a further direction to pay Rs. 10,00,000/- as compensation under Section 544-A, Cr.P.C. to the legal heirs of deceased. Through the same judgment, the above named co-accused of the appellant was acquitted of the charge by extending him benefit of doubt. Assailing the above conviction and sentence, the appellant has filed Crl. Appeal No.73258 of 2021 whereas the learned trial court has sent Murder Reference No.204 of 2021 for confirmation or otherwise of appellant's sentence of death, as required under Section 374 of the Code of Criminal Procedure. The complainant has also preferred Crl. Appeal No.77038 of 2021 against acquittal of co-accused of the appellant. Since all these matters have arisen out of the same judgment, therefore, are being decided together through this single judgment. 2. Prosecution story, as set out in the FIR (Ex.PB/1) registered on the written application (Ex.PD) of Muhammad Zahid, complainant (PW.8) is that on 29.02.2020 at about 08:30 p.m. he along with his father Muhammad Farooq was present in front of his house. Amjad Dogar (appellant) armed with repeater .12 bore and Usman Dogar armed with pistol .30 bore along with an unknown co-accused armed with firearm weapons came there. Amjad Dogar raised lalkara to teach a lesson to the complainant party and made a fire with his repeater .12 bore at the father of the complainant, with intention to kill him, which landed on his back, who fell down. Having heard report of firing and voice of quarrel, Muhammad Qadeer and Zulfiqar PWs attracted to the spot while witnessing the occurrence and on seeing them, all the three accused persons fled away toward north by waving their weapons and making aerial firing. The motive behind the occurrence as alleged in the FIR was that a few times earlier to the occurrence, hot words were exchanged between the complainant and Amjad (appellant) near Chak Wala Darwaza and due to that revenge, the accused persons committed the instant occurrence. The father of the complainant succumbed to the injury at DHQ Hospital, Sargodha on 02.03.2020 and Section 324, P.P.C was substituted with Section 302, P.P.C. 3. We have heard learned counsel for the parties as well as the learned Law Officer for the State at a considerable length and have also gone through the record very minutely. 4. The ocular account in this case has been furnished before the learned trial court by Zahid, complainant (PW.8) and Muhammad Zulfiqar (PW.9), who were closely related to the deceased being his son and brother respectively and were interested witnesses. It was case of the complainant before the learned trial court during his cross-examination that his father received the fire shot when he was present in the door of his cattle-shed/haveli while the stance of Muhammad Zulfiqar (PW.9) was that there was cattle-shed/haveli of the deceased adjacent to the place of occurrence and his brother (deceased) received the fire shot when he was present at raised plate farm (thara) whereas according to the rough site plan (Ex.PP), prepared by Muhammad Yousaf, S.I/I.O. (PW.7) on the pointing out of the PWs, the deceased received fire shot at point No.1, from where blood stained earth was also collected by the I.O. which is an abundant house of one Muhammad Akram. Zahid (PW-8) during cross-examination deposed that "the deceased in injured condition was shifted to the police station on a motorcycle. My clothes were stained with the blood of deceased while shifting in the police station" but admittedly no such blood-stained clothes of the said eye-witness had been secured or produced by Muhammad Yousaf, Sub Inspector (PW-7). In these circumstances, it is concluded that PW-8 produced by the prosecution was not reliable and in all likelihood he had not witnessed the murder in issue. Reliance is placed on case laws titled as "Mst. Mir Zalai v. Ghazi Khan and others" (2020 SCMR 319) and "Rafaqat Ali alias Foji and another v. The State and others" (2024 SCMR 1579). Moreover, it was a night time occurrence and no source of light has been mentioned in the FIR, so there are chances of mistaken identity of the accused. The motive behind the occurrence was that a few times earlier to the occurrence, hot words were exchanged between the complainant and the appellant at Chak Wala Darwaza and due to that revenge, the appellant committed murder of his father. The appellant mounted assault, as per prosecution's own case to settle score with Zahid, complainant (PW-8) for allegedly having exchange of hot words with him. The site plan positions would show that complainant (PW-8), the other PWs and the deceased were at the mercy of the appellant but being the prime target even no threat was extended to complainant (PW-8). As per prosecution's own case the appellant and Zahid (PW-8) were face to face at the time of occurrence and said witness was well within the view and reach of appellant but astonishingly the appellant let the said witness go unhurt who was the prime target of assault. No other inference could be drawn from such circumstances other than that either said witness was not present at the scene or the occurrence took place in a backdrop other than narrated in the FIR. If any such altercation took place between the appellant and Zahid (PW-8) then the prime target for the appellant should be to kill the said witness. Reliance is placed on case law titled as "Mst. Rukhsana Begum and others v. Sajjad and others" (2017 SCMR 596), "Waris Ali and 5 others v. The State" (2017 SCMR 1572) and "Tariq Mehmood v. The State and others" (2019 SCMR 1170). As per complainant, the place of motive incident was a very busy place but as conceded by him, he has not mentioned the name of any eye-witness regarding the motive incident. Even no detail of motive as to on what issue the hot words were exchanged between them, was given by the complainant. The I.O. (PW.7) also narrated during cross-examination that no witness joined the investigation before him in support of the motive, narrated by the complainant in the FIR. We have also noted that no independent witness qua motive was brought in the witness box at the time of trial. Therefore, in our view, the prosecution has not been able to substantiate alleged motive against the appellant. So far as the alleged recovery of .12 bore repeater gun (P.5) at the instance of appellant which was taken into possession vide recovery memo. (Ex.PF) is concerned, the same is inconsequential for the reason that the prosecution has failed to associate any independent witness of the locality as is evident from the recovery memo. (Ex.PF), which bears the signatures of the police officials as recovery witnesses. Thus, the mandatory provisions of Section 103, Cr.P.C. had flagrantly been violated in that regard. Reliance may be placed on case law titled as "Muhammad Ismail and others v. The State" (2017 SCMR 898). Considering overall circumstances of the case, we are of the view that the eye-witnesses were not present on the spot at relevant time and had not witnessed the occurrence. 5. The medical evidence produced by the prosecution was not of much avail to the prosecution because the murder in issue had remained unwitnessed and, thus, the medical evidence could not point an accusing finger towards any of the culprit implicated in this case. Even otherwise, medical evidence is just a corroborative piece of evidence and could only give details about the locale, dimension, kind of weapon used, the duration between injury and medical examination or death and autopsy, etc, but never identify the real assailant. In the case "Munawar Ali alias Munawar Hussain v. The State (PLD 1993 SC 251) the Hon'ble Supreme Court of Pakistan held that:- "Medical evidence is corroboration to show that injuries were caused in a particular manner with particular weapon and even it can supply corroboration to the fact as to how many assailants there were and whether number of injuries is commensurate with number of assailants or not, but medical evidence can never be used as corroboration qua accused to show that particular accused has caused these injuries can never name the accused, that is, from the injuries alone it cannot be said who had inflicted those injuries." The cases "Machia and others v. State" (PLD 1976 SC 695) and "Muhammad Jahangir and another v. The State and others" (2024 SCMR 1741) are also to the same effect. 6. So far as the defence plea taken by the appellant in his statement under Section 342, Code of Criminal Procedure is concerned, since the prosecution evidence is doubtful in nature, therefore, there is no need to discuss the same which is exculpatory in nature. 7. We have considered all the pros and cons of this case and have come to this irresistible conclusion that the prosecution could not prove its case against the appellant beyond any shadow of doubt. It is, by now well established principle of law that it is the prosecution, which has to prove its case against the accused by standing on its own legs and it cannot take any benefit from the weaknesses of the case of the defence. In the instant case, the prosecution remained failed to discharge its responsibility of proving the case against the appellant. It is also well established that if there is a single circumstance which creates doubt regarding the prosecution case, the same is sufficient to give benefit of doubt to the accused, whereas, the instant case is replete with number of circumstances which have created serious doubt about the prosecution story. In this regard, reliance may be place on the case law reported as "Muhammad Akram v. The State" (2009 SCMR 230). 8. For the foregoing reasons, the appeal in hand filed by Muhammad Amjad (appellant) is allowed, conviction and sentence awarded to the appellant vide judgment dated 18.11.2021 passed by the learned trial court are set aside and he is acquitted of the charge levelled against him while extending him benefit of doubt. The appellant is in jail. He shall be released forthwith if not required to be detained in any other case. 9. Murder Reference No.204 of 2021 is answered in the NEGATIVE and the sentence of death awarded to Muhammad Amjad (convict) is NOT CONFIRMED. 10. In view of above discussion, Crl. Appeal No.77038 of 2021 filed by the complainant against acquittal of Muhammad Usman, respondent No.1, having no merits is dismissed. JK/M-38/L Appeal allowed.

Summary: (a) Punjab Consumer Protection Act ( II of 2005 ) --- ----Ss. 25 & 28 (4)---Limitation Act ( IX of 1908 ) , S. 5---Defective and faulty services_---Cause of action, accrual of---Complaint, filing of---Limitation---Tractor Manufacturer filed appeal as District Consumer Court accepted claim of excess charging with regards to purchase of tractor---Validity---In the present case, the cause of action accrued to the respondent / claimant on the date (16.11.2011) when she deposited the purported excess amount and received the delivery of tractor; however, she issued legal notice to the appellants (on 24.02.2012 ) after about three months and one week of said date and filed the complaint (on 27.04.2012) after more than two months of issuing legal notice, which otherwise should have been filed within 30 days from accrual of cause of action, because the provision of law under S.28(4) of the Punjab Consumer Protection Act , 2005, provides period of 30 days for filing such claim from the date of accrual of cause of action---Respondent/claimant did not file any application for condonation of delay under S.5 of the Limitation Act, 1908, showing sufficient cause for delay--- High Court set-aside the impugned judgment passed by District Consumer Court, consequently, the complaint filed by the respondent stood dismissed --- Appeal filed by manufacturer , was allowed, in circumstances. Messrs Pak Suzuki Motors Company Limited through Manager v. Faisal Jameel Butt and another PLD 2023 SC 482 ref. (b) Limitation --- ---- Principles---Limitation is not merely a technicality---Where the limitation period has expired, the right accrues in favour of the other side which cannot be lightly brushed aside. Muhammad Anwar v. Essa PLD 2022 SC 716 and Asad Ali v. The Bank of Punjab PLD 2020 SC 736 ref. (c) Administration of justice --- ----When law requires a particular thing to be done in a particular manner, it has to be done in that manner alone or not at all. Messrs Tri-Star Industries (Pvt) Limited v. Trisa Burstenfabrik AG Triengen and another 2023 SCMR 1502 and Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another 2022 SCMR 1021 ref. (d) Punjab Consumer Protection Act (II of 2005 ) --- ----Ss. 2(d) & 25---Civil Procedure Code (V of 1908), S. 9 ---Defective and faulty service---General damages , claim of---Jurisdiction---Consumer Court or Civil Court---Claimant cannot claim general damages because the same is not governed by S.2(d) of the Punjab Consumer Protection Act, 2005, rather in order to determine the civil rights, the claimant could resort to court of plenary jurisdiction under S.9 of the Code of Civil Procedure, 1908--- High Court set-aside the impugned judgment passed by District Consumer Court, consequently, the complaint filed by the respondent stood dismissed --- Appeal filed by manufacturer was allowed, in circumstances. Umer Abdullah and Muhammad Irfan for Appellant. Qaiser Mahmood Sra and Mohsin Abbas Sra for Respondent. Date of hearing: 17th April, 2024. Judgment Shahid Bilal Hassan, J .--- Succinctly, the respondent filed a complaint before the District Consumer Court, Lahore under section 25 of the Punjab Consumer Protection Act, 2005, against the appellants, for providing alleged defective and faulty services with regards to purchase of tractor. The parties produced their oral as well as documentary evidence. The learned Consumer Court vide impugned judgment dated 03.12.2012 accepted the complaint and directed the appellant(s) to pay Rs.43,000/-charged towards excess price of tractor, Rs.6,880/-towards receive of excess GST and Rs.50,000/- damages total Rs.99,880/- to the respondent/complainant within 30 days; hence, the instant appeal. 2. Heard. 3. Subsection (4) of Section 28 of the Punjab Consumer Protection Act, 2005 provides: "(4) A claim by the consumer or the Authority shall be filed within thirty days of the arising of the cause of action: Provided that the Consumer Court, having jurisdiction to hear the claim, may allow a claim to be filed after thirty days within such time as it may allow if it is satisfied that there was sufficient cause for not filing the complaint within the specified period: Provided further that such extension shall not be allowed beyond a period of sixty days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider and if no period is specified one year from the date of purchase of the products or providing of services.' In the present case, admittedly the cause of action accrued to the respondent on 16.11.2011, when she deposited the purported excess amount and received the delivery of tractor; the respondent issued legal notice to the appellants on 24.02.2012 and filed the complaint under section 25 of the Consumer Protection Act, 2005 on 27.04.2012, which otherwise should have been filed within 30 days from accrual of cause of action, because the above provision of law provides period 30 days for filing such claim from the date of accrual of cause of action. The respondent did not file any application for condonation of delay under section 5 of the Limitation Act, 1908 showing sufficient cause for delay. Reliance in this regard can safely be placed on judgment reported as Messrs Pak Suzuki Motors Company Limited through Manager v. Faisal Jameel Butt and another (PLD 2023 SC 482), wherein it has invariably been held that:- 'A perusal of the above provision indicates that before filing that a claim before the Consumer Court, the consumer or the Authority has to issue a written notice under Section 28(1) to the manufacturer or service provider notifying him of the defect in the product or service or if the conduct of the manufacturer or service provider is in contravention of the provisions of the Act, seeking that he should remedy the defect or give damages, or cease to contravene the provisions of the Act. Under Section 28(2), the manufacturer or service provider is to respond to the notice within 15 days. Section 28(3) provides no claim shall be entertained by the Consumer Court unless the consumer provides proof of sending and delivery of the said notice. Section 28(4) stipulates that a claim shall be filed within 30 days of the arising of the cause of action. The Proviso to Section 28(4) provide that the Consumer Court may extend this limitation period beyond the period of 30 days if it is satisfied that there was sufficient cause for not filing the complaint within the specified period, however, this extension shall not be beyond a period of 60 days from the expiry of the warranty or guarantee period specified by the manufacturer or service provider, or if no period is specified, then one year from the date of purchase of the product or provision of service. 9. In our view, even though no limitation period is provided for sending a written notice under Section 28(1) of the Act, it is apparent that Section 28(4) of the Act in unequivocal terms stipulates and clarifies that a claim with regards to a defective or faulty product or service, or contravention of the provisions of the Act by the manufacturer or service provider has to be filed within 30 days of the arising of the cause of action. The cause of action, in such circumstances where a product or service is faulty, therefore, arises the moment the consumer obtains knowledge that the product or service is defective or faulty. If the provision is interpreted to mean that despite having knowledge of the defect in the product or the Service, the consumer can issue a written notice under Section 28(1) of the Act at any time the consumer desires, pursuant to which, after 15 days of such receipt of the notice, the cause of action for the purposes of the 30-day limitation period would ensue, this would make Section 28(4) of the Act as redundant, and a claim under the Act can be filed at any time without any limitation period subsequent to obtaining knowledge of the defect or fault in the product or the service. 10. The limitation period in such consumer protection claims becomes more significant especially because claimants should bring a claim as quickly as possible due to the potential depreciation of the product in question, the characteristics of which may differ according to the specific product. Delaying the filing of a claim can lead to challenges in establishing the product's condition at the time of purchase and linking any defects to the consumer's use or handling. As time passes, the product may deteriorate, be repaired or modified, or become unavailable, making it more difficult to prove the defects or assess its original condition. Bringing a claim promptly helps ensure that the product's condition and any defects can be accurately evaluated and documented. This can also contribute to a stronger case by providing evidence that directly supports the consumer's claim. Additionally, timely action demonstrates the consumer's diligence and commitment to addressing the issue. 11. The legislative intent behind Sections 28(1), (2) and (3) of the Act is to grant rights to both the consumer and the manufacturer or service provider to address the defects or faults in the product or service before the matter proceeds to litigation. It ensures that the consumer firstly brings the issue to the attention of the manufacturer or the service provider through a written notice, so that the defect or fault is rectified and they fulfill their obligation to the consumer before the consumer has to file a claim before the Consumer Court, so that there is a possibility of settling the claim of the consumer without the need to initiate litigation, which would be more cumbersome for a simple consumer. At the same time, it also affords the manufacturer or the service provider the right to respond to the notice within a specified timeframe, enabling them to address any legitimate concerns, protect their reputation, and mitigate potential costs that may be incurred under the Act. In effect, it provides for a mechanism to settle the dispute before initiation of litigation and the same cannot be construed as giving a fresh cause of action wherefrom the 30-day limitation provided under Section 28(4) would commence. Therefore, when the consumer obtains knowledge of the defect or fault in the product or the service, the 30-day limitation period stipulated under Section 28(4) of the Act commences. It is during this period that the consumer has to first put his grievance before the manufacturer or service provider, seeking rectification of the defect or fault in the product or service, or damages, and provide 15 days to the manufacturer or service provider to remedy the same, as required under Section 28(2). It is only after the manufacturer or the service provider responds to the written notice, or where he fails to respond within the stipulated 15-day period, that the consumer can file a claim before the Consumer Court if the cause of action still subsists. The consumer can still file a claim before the Consumer Court by giving sufficient cause for filing the claim beyond 30 days which will be examined by the Consumer Court, as per the provisos to Section 28(4) of the Act.' (Emphasis supplied) 4. When this Court has reached to a conclusion that the complaint of the respondent was barred by limitation, there is no need to touch the other merits of the case, because limitation is not mere a technicality and where the limitation period has expired, the right accrues in favour of the other side which cannot be lightly brushed aside. Reliance is placed on Muhammad Anwar v. Essa (PLD 2022 SC 716) and Asad Ali v. The Bank of Punjab (PLD 2020 SC 736). 5. Additionally, it is a settled principle of law that when law requires a particular thing to be done in a particular manner, it has to be done in that manner alone or not at all. Reliance is placed on Messrs Tri-Star Industries (Pvt) Limited v. Trisa Burstenfabrik AG Triengen and another (2023 SCMR 1502) and Federation of Pakistan through Secretary Finance, Islamabad and another v. E-Movers (Pvt.) Limited and another (2022 SCMR 1021). 6. Besides, the respondent cannot claim general damages because the same is not governed by section 2(d) of the Consumer Protection Act, 2005, rather in order to determine the civil rights, the respondent could resort to court of plenary jurisdiction under section 9 of the Code of Civil Procedure, 1908. 7. The crux of the discussion above is that the appeal in hand succeeds; resultantly, the impugned judgment is set aside, consequent whereof, the complaint filed by the respondent stands dismissed. No order as to the costs. MQ/M-85/L Appeal allowed.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----Ss. 498, 174 & 176---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Interim-pre-arrest bail, recalling of--- During police custody, complainant's son was allegedly tortured by the applicant (police official) along with co-accused/police officials, resulting in his police custodial death---Deceased's dead body was recovered from the hospital with multiple injuries---Instead of following the procedure in Ss. 174 and 176, Cr.P.C., applicant along with co-accused left the deceased's dead body at the hospital and fled away---Prosecution witnesses supported the complainant's version---No ill will or mala fide had been pointed out by the applicant for false implication---Grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction---It is a diversion from the usual course of law i.e., arrest in cognizable cases; a protection to the innocent being hounded on trumped up charges through abuse of process of law---Thus, an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humiliate him with taints of mala fide---It is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation---Sufficient material was available on record to connect the applicant with the commission of the offence---Interim pre-arrest bail granted to the applicant was recalled, in circumstances. Sajid v. Samin ur Rehman (Deceased) through his father and others 2021 SCMR 138 and Sanaullah Khuharo and others v. The State 2020 P Cr.LJ Note 59 distinguish. Ghulam Raza Soomro v. The State 2000 SCMR 1645 and Rana Abdul Khaliq v. The State and others 2019 SCMR 1129 rel. (b) Criminal Procedure Code (V of 1898)--- ----S. 498---Pre-arrest bail---Tentative assessment---Scope---Deeper appreciation of evidence is not permissible at bail stage and only tentative assessment is to be made. Mehmood Akhtar v. Nazir Ahmed 1995 SCMR 310 rel. Muhammad Ali Pirzada for Applicant. Complainant in person. Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State. Date of hearing: 7th January, 2025. Order Amjad Ali Sahito, J.--- Through instant criminal bail application, the applicant, seeks post arrest bail in Crime No.91/2024, registered at Police Station Waggan (PP Lalu Rounk), for offence under sections 302, 34, P.P.C. Before on this he filed such on application but the same was turned down by the Court of 1st. Additional Sessions Judge/MCTC, Kamber vide Order dated 02.12.2024; hence he filed instant criminal bail application. 2. The details and particulars of the FIR are already available in the bail application, same could be gathered from the copy of FIR attached with such application, hence, needs not to reproduce the same hereunder. 3. Per learned counsel the applicant/accused is innocent and has been falsely implicated in this case; that this is an unseen incident and there is no role against the applicant/accused. He has also relied upon a letter dated 07.10.2024 wherein the claim of the learned Counsel for the applicant claims that the applicant was present before the Consumer Protection Court at Kamber, however, when it was inquired whether there is any case diary, he replied negative and lastly prayed for grant of bail. In support of his contention he relied upon the case of Sajid v. Samin ur Rehman (Deceased) through his father and others (2021 SCMR 138) and Sanaullah Khuharo and others v. The State (2020 PCr.LJ Note 59). 4. On the other hand complainant present in court as well as learned Additional Prosecutor General, Sindh vehemently opposed the grant of bail and states that sufficient material is available on the record as he has participated in the commission of offence as such he is not entitled for the grant of bail. 5. Heard and perused. 6. The case of prosecution is that son of the complainant was booked in a theft case and he was arrested by SHO, Masroor Ali Shah, ASI Zafar Ali, and PC Habibullah/present applicant in crime No. 90/2024 by police of police station P.S. Wagan for an offence under section 381-A, 511, P.P.C. The complainant and other villagers went to the police post Lalu Rank and inquired whereabouts of his son but no one was ready to inform him about his son. After passing some time the complainant came to know that the dead body of his son Fateh Muhammad was lying at Taluka Hospital Warah. The complainant along with his witness went to Tulka Hospital, where they saw the dead body of deceased Fateh Muhammad and found injuries on the different parts of the dead body and also on the neck. 7. From the perusal of the record it appears that during his detention at the police station deceased Fateh Muhammad was miserably tortured by the SHO, Masroor Ali Shah, ASI Zafar Ali, and PC Habibullah and other Police officials at the police station. Resultantly he died at the police station; as such this is a case of police custodial death. Further procedure also provided in the law that, if any person has been killed by another person or in police custody the report shall be sumitted before the nearest Magistrate under Section 174, Cr.P.C Section 176, Cr.P.C also provides a mechanism for how to hold an inquiry by a Magistrate into the cause of death when any person dies while in the custody of the police. But in the instant case to destroy the evidence, the police party left the dead body of the deceased at the hospital and flew away. The prosecution witnesses supported the version of the complainant. No ill will or mala fide has been pointed out by the learned counsel for the applicant for false implication into the case. Reliance is placed in the case of Ghulam Raza Soomro v. The State (2000 SCMR 1645). 8. The concession of pre-arrest bail cannot be allowed to an accused person unless the Court feels satisfied with the seriousness of the accused person's assertion regarding his intended arrest being actuated by mala fide on the part of the complainant party or the local police but not a word about this crucial aspect of the matter is found as no mala fide is made on the part of the complainant to believe that the applicant/accused has been implicated in this case falsely. Further, in additional to the above, I would like to mention that the grant of pre-arrest bail is an extraordinary remedy in criminal jurisdiction; it is the diversion of the usual course of law, arrest in cognizable cases; a protection to the innocent being hounded on trump up charges through abuse of process of law, therefore, an applicant seeking judicial protection is required to reasonably demonstrate that intended arrest is calculated to humilitate him with taints of mala fide, it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. In this regard, reliance is placed on the case of 'Rana Abdul Khlaiq v. The State and others' [2019 SCMR 1129]. 9. It is well-settled principle of law that the deeper appreciation of evidence is not permissible at the bail stage and only tentative assessment is to be made. The reliance in this context is made to the case of 'Mehmood Akhtar v. Nazir Ahmed' [1995 SCMR 310]. Sufficient material is available on record which connects the applicant/accused with the commission of the alleged offence. The case laws relied on by learned counsel for the applicant/accused are distinguishable from the facts and circumstances of the instant case. 10. In view of the above, the applicant has failed to bring his case for further inquiry as envisaged under subsection (2) of section 497, Cr.P.C Consequently, the interim pre-arrest bail granted by this Court to the applicant/accused vide order dated 05.12.2024 is hereby recalled and the bail application is dismissed. 11. Learned Additional Prosecutor General, Sindh requests for custody of the applicant/accused as such he is taken into custody and handed over to the SHO, P.P Lalu Raunk Police station Wagan for further investigation. 12. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the learned trial court while deciding the case of either party at trial. SA/H-3/Sindh Application dismissed.