Summary: (a) Civil Procedure Code (V of 1908)--- ----O.VI, R.4---Qanun-e-Shahadat (10 of 1984), Arts. 113, 117 & 120--- Gift transaction---Legality---Fraud---Onus of proof---Admission as to validity of gift---Necessity to prove the transaction of gift---Facts need not to be proved---Contention of the petitioner was that respondents being beneficiaries of the gift transaction had failed to divulge details thereof in their written statement, thus, the suit had rightly been dismissed by the Trial Court---Validity---Party pleading any misrepresentation and fraud was obliged to narrate particulars to that effect---Plaint was lacking any details or particulars that how the transaction was tainted with fraud---Donor and predecessor-in-interest of the petitioners accepted the donee as lawful owner of the suit land and never challenged the gift mutation in their lifetime---Article 113 of Qanun-e-Shahadat, 1984, ordains that no fact need be proved in any proceedings which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings---Petitioner's own witness admitted qua the validity of gift, thus, there remained no necessity for the respondents to assert or lead any material to that effect---After effecting of gift mutation necessary entries were incorporated in the revenue record for the subsequent years---Civil revision was dismissed, in circumstances. Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others PLD 2014 SC 167; Mst. Kalsoom Begum v. Peran Ditta and others 2022 SCMR 1352 and Mst. Faheeman Begum (Deceased) through L.Rs and others v. Islam-Ud-Din (Deceased) through L.Rs and others 2023 SCMR 1402 ref. Faqir Ali and others v. Sakina Bibi and others PLD 2022 SC 85; Noor Din (Deceased) through LRs v. Pervaiz Akhtar and others 2023 SCMR 1928; Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009; Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others 2022 SCMR 1558; Principal Public School Sangota, Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Sarbiland and others 2022 SCMR 189 and Saadat Khan and others v. Shahid-ur-Rehman and others PLD 2023 SC 362 distinguished. (b) Gift--- ----Proof---Principle of acquiescence and estoppel---Scope---Gift not challenged by the donor in his lifetime---Where in his lifetime donee did not challenge the validity of gift, his successors would be precluded to throw any challenge to such transaction on the principle of acquiescence and estoppel---Gift mutation was sanctioned in the year 1962 and the donor though remained alive till 1969, but he did not challenge the gift in favour of his son/donee---Petitioners were claiming right in the suit land being successor-in-interest/another son of donor, who too remained alive till 1978, but never challenged the gift, thus, petitioner were precluded to dispute the gift mutation on the ground of estoppel. Ghulam Abbas and others v. Mohammad Shafi through LRs and others 2016 SCMR 1403; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299 and Jamila Khatoon and others v. Aish Muhammad and others 2011 SCMR 222 rel. (c) Limitation Act (IX of 1908)--- ----S.18 & First Sched, Art.120---Specific Relief Act (I of 1877), S.42--- Gift mutation---Suit for declaration challenging gift mutation on the ground of fraud---Limitation period, commencement of---Scope---Section 42 of the Specific Relief Act, 1877, (Act) ordains that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled---Right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right---In the present case limitation started running from the date of knowledge of the donor and not the petitioners---Petitioners nowhere in their plaint asserted that their father or the grandfather (donor), who both remained alive for a considerable time after the sanctioning of gift mutation, were not aware of the same, thus, could not challenge it during their lifetime---After the incorporation of suit land in his name in furtherance of gift mutation the donee transferred part of the suit land in favour of the respondents through two mutations in the year 1981, thus, petitioners were well aware of the gift mutation right from its inception but they brought their suit in 2003, which was clearly barred by time---Civil revision was dismissed, in circumstances. Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353 and Mst. Rabia Gula and others v. Muhammad Janan and others 2022 SCMR 1009 rel. (d) Civil Procedure Code (V of 1908)--- ----S.115---Revisional jurisdiction---Scope---Conflict of judgment of lower courts---Preference---In the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, preference and regard is always given to the findings of the appellate court, unless they suffer from any legal infirmity or material irregularity. Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs. and others 2013 SCMR 1300; Amjad Ikram v. Mst. Asiya Kausar and 2 others 2015 SCMR 1 and Muhammad Hafeez and another v. District Judge, Karachi East and another 2008 SCMR 398 rel. Tanvir Iqbal for Petitioners. Ch. Afrasiab Khan and Abdul Basit Khan Tanoli for Respondents Nos. 1 to 4. Nemo for Respondent No. 5. Dates of hearing: 5th and 7th December, 2023. Judgment Mirza Viqas Rauf, J .--- This petition invokes the revisional jurisdiction of this Court as contemplated under Section 115 of the Code of Civil Procedure (V of 1908) (hereinafter referred to as "C.P.C.") against the judgment and decree dated 01st November, 2012 handed down by learned District Judge, Rawalpindi, whereby he proceeded to allow the appeal preferred by respondents Nos.1 to 4 (hereinafter referred to as "respondents") as a result setting at naught the judgment and decree dated 24th December, 2011 passed by the learned Civil Judge Class-I, Rawalpindi. 2. The proposition involved in this petition is quite common to our society. Abdul Rehman son of Khatar Khan was a big landlord in the revenue estate of Daultala Tehsil Gujar Khan District Rawalpindi. He was having two sons namely Muhammad Afsar and Muhammad Khan whereas Aksar Jan was his daughter. Abdul Rehman purportedly gifted a part of land measuring 101 Kanal 19 Marla (hereinafter referred to as "suit land") to Muhammad Khan (one of his sons) qua which mutation No.633 dated 18th September, 1962 was recorded. Abdul Rehman died in the year 1969 whereas Muhammad Khan passed away in the year 1998, who ultimately survived the "respondents". The petitioners being the successors-in-interest of Muhammad Afsar instituted a suit for declaration, separate possession through partition and injunction averring therein that their predecessor-in-interest namely Muhammad Afsar died in the year 1978 and after his death, they remained under the custody of Muhammad Khan, who however died later on. It is asserted that after demise of Muhammad Khan, the petitioners and "respondents" started living separately on the basis of family settlement, however, "respondents" refused to give half share in the "suit land" on the plea that it is not joint being gifted to their predecessor-in-interest by Abdul Rehman. On further inquiry by the petitioners it revealed on them that a gift mutation No.633 was sanctioned on 18th September, 1962 in favour of Muhammad Khan, which as per their stance was the outcome of fraud and misrepresentation having no effect upon their rights. 3. Suit was resisted by the "respondents" on multiple grounds through a written statement. On account of serious challenge on both sides as reflected in their respective pleadings, the trial court proceeded to frame multiple issues. After framing of issues both the sides produced their evidence and upon completion of the same, suit was decreed vide judgment dated 24th December, 2011. Feeling aggrieved the "respondents" preferred an appeal before the learned District Judge, Rawalpindi. The appeal was ultimately allowed by way of impugned judgment and decree. 4. Learned counsel for the petitioners contended that being the beneficiaries, it was though obligatory for the "respondents" in the first instance to plead the gift transaction but no such assertion was made in the written statement. He added that evidence can only be led with regard to a fact, which finds mention in the pleadings. Learned counsel contended that suit was mainly resisted by the "respondents" on the ground of limitation. He added that in case of fraud no limitation runs against the person, who has been defrauded. Learned counsel submitted that even otherwise the proceedings relating to sanctioning of gift mutation are tainted with material irregularities. It is contended with vehemence that gift was never pleaded and mutation by itself is not a document validating the original transaction. Learned counsel emphasized that suit was initially rightly decreed but the appellate court while forming a contra view has grossly misread the evidence. It is argued that the impugned judgment and decree is not tenable under the law. In support of his contentions, learned counsel placed reliance on Faqir Ali and others v. Sakina Bibi and others (PLD 2022 SC 85), Noor Din (Deceased) through LRs v. Pervaiz Akhtar and others (2023 SCMR 1928), Mst. Rabia Gula and others v. Muhammad Janan and others (2022 SCMR 1009), Syed Kausar Ali Shah and others v. Syed Farhat Hussain Shah and others (2022 SCMR 1558), Principal Public School Sangota, Government of Khyber Pakhtunkhwa through Chief Secretary and others v. Sarbiland and others (2022 SCMR 189) and Saadat Khan and others v. Shahid-ur-Rehman and others (PLD 2023 SC 362). 5. Conversely, learned counsel for the "respondents" submitted that gift was validly made. He added that the petitioners on account of their conduct were precluded to institute the suit. Learned counsel submitted that in pursuance to the gift mutation necessary entries were incorporated in the revenue record and the petitioners were well aware of the same. Learned counsel emphasized that even otherwise the donor though remained alive for a considerable period but he never challenged the gift transaction. Learned counsel contended that suit was instituted by the petitioners on account of mala fide. It is also contended that fraud was though alleged but no particulars of fraud were mentioned in the plaint. Learned counsel submitted that suit was wrongly decreed by the trial court and the appellate court was fully justified to set at naught the findings of the trial court in the circumstances. In the last, learned counsel argued that suit was hopelessly barred by time. In order to supplement his contentions, learned counsel placed reliance on Mst. Grana through Legal Heirs and others v. Sahib Kamala Bibi and others (PLD 2014 SC 167), Mst. Kalsoom Begum v. Peran Ditta and others (2022 SCMR 1352) and Mst. Faheeman Begum (Deceased) through L.Rs and others v. Islam-ud-Din (Deceased) through L.Rs and others (2023 SCMR 1402). 6. Heard. Record perused. 7. "Suit land" (101 Kanal 19 Marla) was part of estate owned by Abdul Rehman, who was Headman of village Daultala Tehsil Gujar Khan District Rawalpindi. Abdul Rehman breathed his last on 06th January, 1969 leaving behind two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. The petitioners are the successors-in-interest of Muhammad Afsar whereas the "respondents" are the legal heirs of Muhammad Khan. The matter in controversy stems from mutation No.633 dated 18th September, 1962 purportedly effected in favour of Muhammad Khan. 8. Before delving into the merits of the case it would be advantageous to point out certain admitted facts, which even otherwise are quite relevant for the matter in controversy. Gift mutation No.633 was sanctioned on 18th September, 1962 whereas Abdul Rehman (donor) died on 06th January, 1969. Muhammad Khan (donee) passed away on 28th December, 1998 whereas Muhammad Afsar, predecessor-in-interest of the petitioners took his last breath on 04th March, 1978. It would not be out of context to mention here that Muhammad Afsar was Sub-Inspector in police department. 9. The points for determination before this Court are; firstly, validity of gift transaction; secondly, effect of non-challenging of gift by the donor and; thirdly, limitation. 10. Adverting to the first limb of controversy it is noticed that to this effect issue No.7 was framed. Being the plaintiffs, it is the claim of the petitioners that gift mutation is a product of fraud. Contrary to this the "respondents" pleaded that gift transaction was valid one. In terms of Order VI Rule 4 of the "C.P.C." a party pleading any misrepresentation or fraud is obliged to narrate particulars to that effect. When plaint is examined in this context it is clearly lacking any details or particulars that how the transaction was tainted with fraud. In order to prove their claim, the petitioners examined Muhammad Rizwan being one of the petitioners as PW1. In his statement he reiterated the facts contained in the plaint and asserted that Abdul Rehman has though never made any gift in his lifetime, but Muhammad Khan was since Headman, so in connivance with the revenue officials, he succeeded in getting the gift mutation effected in his favour. Bashir Ahmad being close relative of the petitioners as well as the "respondents" appeared as PW2. He stated that Muhammad Afsar and Muhammad Khan partitioned their property in the year 2003 and he came to know about the gift in the said year. During his cross-examination Bashir Ahmad admitted that Mst. Munawar Jan, petitioner No.1 gifted him portion of land from the share of her inherited property. He also admitted that one Muhammad Ashiq had filed a suit against Abdul Rehman and Muhammad Khan wherein he acted as special attorney on behalf of the latter and the suit was dismissed finally. He also admitted that Abdul Rehman has rightly made the gift in favour of Muhammad Khan. Though there were certain pivotal admissions in the statement of Muhammad Rizwan (PW1) as well but the statement of Bashir Ahmad (PW2) was quite fatal to the claim of the petitioners. 11. There can be no cavil that mutation by itself is not a document of title and it is only an acknowledgment of the original transaction, which has taken place prior to the incorporating/sanctioning of mutation and a person relying upon mutation has to establish the original transaction in the first instance. The facts of this case are, however, bit different. The "respondents" though did not plead the original transaction in clear words in their written statement but they while responding to para No.4 of the plaint and denying the averments of the para, asserted that the original owner Abdul Rehman made a valid gift of "suit land" in favour of Muhammad Khan through mutation No.633 attested on 18th September, 1962 whereafter the gift mutation was incorporated in the revenue record and the donee (Muhammad Khan) enjoyed the possession as well as ownership of the "suit land". They further asserted that Abdul Rehman (donor) and Muhammad Afsar, predecessor-in-interest of the petitioners accepted the donee as lawful owner of the "suit land" and never challenged the gift mutation in their lifetime. 12. Article 113 of the Qanun-e-Shahadat Order, 1984 ordains that no fact need be proved in any proceeding which the parties thereto or their agents agree to admit at the hearing, or which before the hearing, they agree to admit by any writing under their hands, or which by any rule or pleading in force at the time they are deemed to have admitted by their pleadings. To the above effect when the statement of Bashir Ahmad (PW2) is analyzed, he in his cross-examination deposed as under :- In view of admissions with regard to the validity of gift by the petitioners' own witness, there remains no necessity for the "respondents" to assert or lead any material to that effect. It clearly evinces from the record that after effecting of gift mutation necessary entries were incorporated in the revenue record for the subsequent years. 13. Coming to the question of effect of non-challenging of gift by the donor, it is noticed that Abdul Rehman survived two sons namely Muhammad Khan and Muhammad Afsar as well as one daughter namely Aksar Jan. Donor was owner of about 300 Kanal land in Daultala Tehsil Gujar Khan District Rawalpindi, however, he gifted "suit land" to his son namely Muhammad Khan. It appears that as Muhammad Afsar was in the police department, so the donor being father of Muhammad Khan (donee) opted to gift the "suit land" in his favour, so as to safeguard his rights as he was unemployed. Leaving aside this aspect it is an oft repeated principle of law that where in his lifetime donor did not challenge the validity of gift, his successors would be precluded to throw any challenge to such transaction on the principle of acquiescence and estoppel. 14. In the present case gift mutation was sanctioned on 18th September, 1962 and the donor though remained alive till 06th January, 1969 but he did not challenge the gift in favour of his son (Muhammad Khan). Furthermore the petitioners are claiming right in the "suit land" being successors-in-interest of Muhammad Afsar, who too remained alive till 04th March, 1978 but never challenged the gift. The petitioners are thus precluded to dispute the gift mutation on the ground of estoppel. Reference to this effect can be made to Ghulam Abbas and others v. Mohammad Shafi through LRs and others (2016 SCMR 1403), Muhammad Rustam and another v. Mst. Makhan Jan and others (2013 SCMR 299) and Jamila Khatoon and others v. Aish Muhammad and others (2011 SCMR 222). 15. Now attending the last point for determination, which relates to limitation, it is observed that a suit for declaration of any right as to any property, the person claiming such right has to institute the suit under Section 42 of the Specific Relief Act, 1877 and the limitation of such suit is to be regulated and governed by Article 120 of the Limitation Act, 1908. Suit was instituted by the petitioners on 30th July, 2003 challenging the validity of gift mutation on the ground of fraud asserting that the cause of action accrued to them six months before institution of the suit on claim of the respondents' that they are exclusive owners of the "suit land". 16. It is evident from the record that after the gift mutation entries were incorporated in the light thereof in the revenue record. It also evinces that after the incorporation of "suit land" in his name in furtherance of gift mutation the donee transferred portion of the "suit land" in favour of the "respondents" through mutation No.2786 dated 30th May, 1981 (Exhibit-P23). Not only this but through mutation No.2714 (Exhibit-D18) 03 Kanal 18 Marla of land was mutated in favour of the petitioners as well through gift. 17. Section 42 of the Specific Relief Act, 1877 ordains that any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled. Section 42 of the Act ibid is reproduced below for the purpose of convenience :- "42. Discretion of Court as to declaration of status or right.- (1) Any person entitled to any character, or any right to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. (2) Notwithstanding anything contained in any other law for the time being in force, a suit filed under subsection (1) shall be decided by the Court within six months and the appellate court shall decide the appeal not later than ninety days, as the case may be." From the bare perusal of the above referred provision of law it becomes crystal clear that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. 18. In the case of Salamat Ali and others v. Muhammad Din and others (PLD 2022 SC 353) Supreme Court of Pakistan outlined the scope of Section 42 of the Specific Relief Act, 1877 in the following words :- "25. A suit for declaration of any right as to any property is filed under section 42 of the Specific Relief Act, 1877 ("Specific Relief Act"). Therefore, to ascertain when the right to sue accrues to a legal heir to seek a declaration of his ownership right over the property inherited by him and of his such right not to be affected by the further transfer of such property, we need to consider section 42 of the Specific Relief Act, which reads:-- 42. Discretion of Court as to declaration of status or right-- Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. (Emphasis added) It becomes evident by reading the above provisions that the right to sue accrues to a person against the other for declaration of his right, as to any property, when the latter denies or is interested to deny his such right. It thus postulates two actions that cause the accrual of right to sue, to an aggrieved person: (i) actual denial of his right or (ii) apprehended or threatened denial of his right. 26. What "actions" can be termed as an "actual denial of right", and what a mere "apprehended or threatened denial of right", in the context of adverse entries recorded in the revenue record, is a question that requires consideration. Admittedly, entries in the revenue record do not create or extinguish proprietary rights. Such an entry may at most be termed as a mere "apprehended or threatened denial" of right, and not an "actual denial" of right. Accordingly, every new adverse entry in the revenue record relating to proprietary rights of a person in possession (actual or constructive) of the land regarding which the wrong entry is made, gives to such person, a fresh cause of action to institute the suit for declaration. The situation is, however, different in a case where the person in possession (actual or constructive) of the land regarding which the wrong entry is made, is ousted from such possession, besides a wrong entry in the revenue record. In such a case, the act of ousting him from the actual or constructive possession of the land, constitutes an "actual denial" of his rights, and does not remain a mere "apprehended or threatened denial". Therefore, in such a case, if the person injuriously affected by such an act of "actual denial" of his rights does not challenge the same within the prescribed limitation period, despite having knowledge thereof, then his right to do so becomes barred by law of limitation. 27. In an inheritance case, like the present one, a wrong mutation in the revenue record, as to inheritance rights does not affect the proprietary rights of a legal heir in the property, as the devolution of the ownership of the property on legal heirs takes place under the Islamic law, through inheritance immediately, without any formality including sanction of inheritance mutation. Therefore, a wrong mutation is a mere "apprehended or threatened denial" of right, not necessitating for the person aggrieved thereby to institute the suit. The position is, however, different when the co-sharer in possession of the joint property, on the basis of a wrong inheritance mutation, sells the joint property, or any part thereof exceeding his share, claiming him to be the exclusive owner thereof and transfers possession of the sold land to a third person, the purchaser. In such a circumstance, the co-sharer by his said act "actually denies" the rights of the other co-sharer, who is only in constructive possession of the same, and ousts him from such constructive possession also by transferring the possession of the sold land to a third person, the purchaser. In such circumstances, the right to sue accrues to the aggrieved co-sharer from the date of such sale, and transfer of actual possession of the sold land to the third person, the purchaser." Reliance in this respect can also be placed on Mst. Rabia Gula and others v. Muhammad Janan and others (2022 SCMR 1009). 19. After having an overview of the principles laid down in the cases cited above, it can safely be held that limitation would start running from the date of knowledge of the donor and not the petitioners. Even otherwise the petitioners nowhere in their plaint asserted that their father or the grandfather (donor), who both remained alive for considerable time after the sanctioning of gift mutation, were not aware of the same and thus could not challenge it during their lifetime. Contrarily sufficient material is available on the record to show that the petitioners were well in knowledge of the gift mutation right from its inception but they brought their suit on 30th July, 2003, which is clearly barred by time. 20. So far judgment in the case of Faqir Ali's heavily relied by learned counsel for the petitioners is concerned, it is noticed that in the said case by way of gift mutation female members of the family were deprived from their share in inheritance of their predecessor. They instituted a suit for declaration alleging fraud and were ultimately succeeded to establish that the gift mutations were the product of fraud. In this background, Supreme Court of Pakistan observed that fraud vitiates even the most solemn transactions and any transaction that is based upon fraud is void and notwithstanding the bar of limitation. Courts would not act as helpless by stands and allow a fraud to perpetuate. Facts in the case of Noor Din (Deceased) supra were also almost the same, as such principles laid down therein are not applicable to the case at hand. In the case of Saadat Khan's above, the matter was relatable to estate of Isa Khan, who died and after his death inheritance mutation was sanctioned only in favour of his son Abdul Rehman on 23rd March, 1995, which was later on challenged in the year 2004 by Mst. Mehro and Mst. Afsro claiming themselves daughters of said Isa Khan and in this background, Supreme Court of Pakistan again observed that a suit instituted by a female legal heir for declaration of her ownership rights as to the property left by her deceased father in his inheritance, against her brother who denies her rights is thus governed by the provisions of Article 120. To decide whether such a suit is barred by limitation, the six-year period of limitation provided by Article 120 is to be counted from the time when the right to sue for declaration accrues as provided therein. The question, when the right to sue for declaration has accrued in a case, depends upon the facts and circumstances of that case, as it accrues when the defendant denies (actually) or is interested to deny (threatens) the rights of the plaintiff as per Section 42 of the Specific Relief Act, 1877. The principles laid down in the said judgment are same as were previously held in the case of Faqir Ali's supra. 21. From the facts and circumstances of the present case it is since established on the record that neither donor nor father of the petitioners challenged the gift mutation in their lifetime and the petitioners even did not assert in their plaint either of them were not aware about the gift mutation, so their suit becomes badly barred by time. Even otherwise in view of availability of material qua the fact that donee gifted some portion of land to the petitioners and they accepted the same, there remains no room to infer that they were not having knowledge of the gift. Suit was thus rightly adjudged as barred by time by the appellate court. 22. Though there is divergence of views in the courts below and conclusion are contrary to each other but this Court, while exercising revisional jurisdiction is supposed to make comparative analysis of both the judgments in order to examine their validity on the touchstones of Section 115 of "C.P.C". It is cardinal principle of law that in the matter of giving preference to the judgments of lower courts while analyzing the same in exercise of revisional jurisdiction, the preference and regard is always given to the findings of the appellate court, unless those are suffering with any legal infirmity or material irregularity. Reference in this respect, if needed can safely be made to the case of Muhammad Nawaz through L.Rs v. Haji Muhammad Baran Khan through L.Rs. and others (2013 SCMR 1300). Relevant extract from the same is reproduced herein below:- "12???We have also taken into consideration the judgment of the Appellate Court which is based on proper appraisal of evidence on record and the findings of the Appellate Court are to be preferred as it has been held by this Court in the cases of Madan Gopal and others v. Maran Bepari and others (PLD 1969 SC 617) that if the findings of fact reached by the first appellate Court is at variance with that of the trial Court, the former will ordinarily prevail, although it would not possess the same value or sanctity as a concurrent finding." This view also finds support from the cases of Muhammad Shafi and others v. Sultan Mahmood and others (2010 SCMR 827)??.." The above view also finds support from the cases of Amjad Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 1) and Muhammad Hafeez and another v. District Judge, Karachi East and another (2008 SCMR 398). 23. After having a comparative analysis of both the judgments, I am of the firm view that the learned District Judge, Rawalpindi has rightly interfered with the judgment passed by the learned Civil Judge, Rawalpindi. The petitioners have failed to point out any illegality or material irregularity in the impugned judgment, warranting interference by this Court in exercise of revisional jurisdiction. The instant petition thus fails and is dismissed with no order as to costs. SA/M-133/L Revision dismissed.

Summary: (a) 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 son of complainant by firing---According to the prosecution case, the motive behind the occurrence was that on the night before the occurrence, a cow of one "Mr. M" was stolen and the foot trackers led the footprints of the accused towards a Chak, in which one "I" was residing, who had enmity of murders with the complainant party---Said "I" told "Mr. M" that his cow was stolen by deceased---Said "Mr. M" and appellant etc. had close friendship with each other and due to the said grudge, the occurrence was committed by the appellant and his co-accused---It was evident that cow of the appellant was not stolen in this case rather the cow of one "Mr. M" was stolen---Complainant had conceded that appellant had no relationship with "Mr. M"---Allegedly, appellant was a foot-tracker, who tried to trace out the accused responsible for the theft of the cow of "Mr. M", therefore, he had falsely been implicated in this case---As appellant was having no personal grudge or enmity against deceased, therefore, he had no reason to commit the occurrence---Thus, the prosecution had failed to prove any motive against the appellant---Circumstances established that the prosecution failed to prove its case to the extent of appellant beyond the shadow of doubt---Appeal against conviction was accordingly allowed. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Ocular account and medical evidence---Confliction---Accused were charged for committing murder of the son of complainant by firing---In the complaint, there was over-writing with regard to role attributed to the appellant---It was evident from the perusal of the complaint that initially it was alleged that appellant made a fire shot with his pistol, which landed on the left thigh of deceased but after interpolation and overwriting the said words were changed from left thigh to right thigh and the words by putting the pistol on the thigh were also added and as such the role attributed to the appellant had been changed through interpolation and over-writing---Noteworthy that in the contents of the FIR and in the complaint, it was alleged that appellant, made a fire shot with his pistol after putting the same on his right thigh but Medical Officer, who first medically examined deceased in injured condition, did not note any blackening, burning or tattooing on injury No.2, which was on the right thigh of the deceased---Medical Officer further conceded that in case of a contact fire shot, there was possibility of blackening, burning and tattooing---As there was no blackening, burning or tattooing on the injuries of the deceased, therefore, the said injuries were not contact wounds and the said injuries were caused from a range of more than three feet---Thus, there was conflict in the ocular account and the medical evidence of the prosecution to the extent of role attributed to appellant of making a fire shot on the right thigh of the deceased by putting his pistol on his right thigh---Circumstances established that the prosecution failed to prove its case to the extent of appellant beyond the shadow of doubt---Appeal against conviction was accordingly allowed. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qanun-e-Shahadat (10 of 1984), Art. 46---Qatl-i-amd, common intention---Appreciation of evidence---Dying declaration---Scope---Accused were charged for committing murder of the son of complainant by firing---Allegedly, there was a dying declaration of deceased, wherein he fully implicated appellant in this case---Noteworthy that Medical Officer, who initially medically examined deceased in injured condition, was not the medical officer, who allowed the Investigating Officer to record the dying declaration of the deceased---Said Medical Officer did not utter a single word in that respect and the Medical Officer, who allowed to record the alleged dying declaration of the deceased, was not produced in the witness box---Moreover, Medical Officer had further stated during his cross-examination that the condition of the injured was critical and in the column of history, he had mentioned that the victim did not name the assailant---In order to prove the dying declaration of the deceased, the prosecution had only produced a retired police official--- Said witness stated that he recorded dying declaration of the deceased and he also produced the document to establish that the deceased was fit to make statement but the relevant Medical Officer, who gave the opinion that the deceased was fit to make statement had not been produced in the witness box---Noteworthy that in the examination-in-chief, retired police official, had stated that at the time of joining the deceased, the then injured, into the investigation of this case the father of the deceased,his mother and brother were present, who joined the investigation but the complainant did not utter a single word in his examination-in-chief that dying declaration of deceased was recorded in his presence---Remaining witnesses of dying declaration were also not produced by the prosecution in the witness box---Neither any member of the concerned hospital staff was associated at the time of recording of statement of the deceased nor was it verified by any official of the hospital that the statement was actually made by the deceased---Under the circumstances, the status of statement of the deceased was a statement under S.161, Cr.P.C and not the dying declaration of the deceased---Circumstances established that the prosecution failed to prove its case to the extent of appellant beyond the shadow of doubt---Appeal against conviction was accordingly allowed. Mst. Zahida Bibi v. The State PLD 2006 SC 255 and Farman Ahmed v. Muhammad Inayaat and others 2007 SCMR 1825 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 34---Qatl-i-amd, common intention---Appreciation of evidence---Recovery of pistol on the pointation of accused---Inconsequential---Accused were charged for committing murder of the son of complainant by firing---Record showed that a pistol was recovered on the pointation of accused---Report of Forensic Science Agency was only regarding mechanical operating condition of the pistol and the empties recovered from the spot did not match with the said pistol, therefore, the recovery of pistol, at the pointing out of the appellant was of no avail to the prosecution---Circumstances established that the prosecution failed to prove its case to the extent of appellant beyond the shadow of doubt---Appeal against conviction was accordingly allowed. (e) Criminal trial--- ----Benefit of doubt---Principle---If there is a single circumstance which creats doubt regarding the prosecution case, the same would be sufficient to give benefit of doubt to the accused. Tariq Pervez v. The State 1995 SCMR 1345 and Muhammad Akram v. The State 2009 SCMR 230 rel. A.G. Tariq Chaudhry for Appellant. Nisar Ahmad Virk, Deputy Prosecutor General with Jafar SI for the State. Ali Raza Khokhar for the Complainant. Date of hearing: 22nd May, 2024. Judgment Malik Shahzad Ahmad Khan, C.J.--- This judgment shall dispose of Criminal Appeal No.29448-J of 2022, filed by Haq Nawaz (appellant) against his conviction and sentence. Haq Nawaz (appellant) along with Shafique alias Rembo (co-accused since acquitted) and Shafaqat alias Basharat (co-accused since acquitted), was tried in case FIR No.460, dated 24.12.2019, registered at police station Satiana, District Faisalabad, in respect of offences under section 302/34, P.P.C and vide impugned judgment dated 09.03.2022, passed by learned Additional Sessions Judge, Jaranwala, he (appellant) has been convicted and sentenced as under:- Under section 302(b) P.P.C to imprisonment for life and to pay an amount of Rs.1000,000/- to the legal heirs of the deceased, namely Muhammad Faryad, as compensation under section 544-A of Cr.P.C. The compensation shall be recoverable as arrears of land revenue and in default thereof to further undergo six months simple imprisonment. 2. Brief facts of the case as given by Muhammad Mumtaz, complainant (PW-1) in his complaint (Ex.PA), on the basis of which the formal FIR (Ex.PM) was chalked out, are that he (complainant) was resident of Chak No.35/GB and a labourer by profession. On 23.12.2019, at 3.30 a.m, the complainant along with Farman (PW-2) and Iqbal (PW since given up), was sitting in his Haveli of cattle and were chatting with each other, whereas the son of the complainant namely Muhammad Faryad deceased was constructing Khuda for hens. Suddenly on hearing hue and cry from the chowk, the complainant along with Farman Ali (PW-2) and Muhammad Faryad (deceased), went towards the chowk and saw that Haq Nawaz (appellant) and his co-accused were giving beating to nephew of the complainant namely Muhammad Shahban. Muhammad Faryad (deceased) tried to intervene but Haq Nawaz (appellant), raised a lalkara that Muhammad Faryad (deceased), be taught a lesson as he (deceased) had stolen the cow of one Munawar. In view of the complainant party, Liaqat Ali (co-accused since P.O), made a fire shot, which landed on the right thigh of Muhammad Faryad (deceased). The deceased fell on the ground, whereafter Haq Nawaz (appellant), made a fire shot with his pistol .30-bore, while putting his pistol on the right thigh of Muhammad Faryad (deceased). The remaining accused persons namely Shafique alias Rambo and Shafaqat alias Basharat (co-accused since acquitted), made aerial firing. On raising hue and cry by the complainant party, many people of the locality gathered at the spot, whereas the appellant and his co-accused fled away from the spot while making fire shots. The motive behind the occurrence was that on the previous night of occurrence a cow of one Munawar was stolen and the foot trackers led the footprints of the accused towards Chak No.34/GB. In Chak No.34/GB, one Irfan was residing, who was having enmity of murders with the complainant party. The said Irfan told the abovementioned Munawar that his cow was stolen by Muhammad Faryad (deceased). The abovementioned Munawar and Haq Nawaz appellant etc. had close friendship with each other and due to the above-mentioned grudge, the occurrence was committed by the appellant and his co-accused. 3. After completion of investigation, the challan was prepared and submitted before the learned trial Court. In order to prove its case, the prosecution produced eleven witnesses during the trial. The prosecution also produced documentary evidence in the shape of (Ex.PA) to (Ex.PX). In defence evidence Ex.DA, was produced. The statement of the appellant under section 342, Cr.P.C, was recorded, wherein he denied the allegations levelled against him. The learned trial Court vide its judgment dated 09.03.2022, found the appellant guilty, convicted and sentenced him as mentioned and detailed above. 4. It is contended by learned counsel for the appellant that the appellant is absolutely innocent and he has falsely been implicated in this case being in league with the complainant party; that there is over-writing in complaint (Ex.PA), regarding the role attributed to the appellant as interpolation was made by the complainant while changing the words from left to right thigh and words by putting the pistol on the thigh of the deceased were also added; that there is conflict between the ocular account and the medical evidence as Dr. Kashif Jameel (PW-9), did not note any blackening, burning or tattooing on Injury No.2, therefore, the stance of the complainant in Ex.PA that appellant made a fire shot while putting his pistol on the thigh of the deceased is contradicted by the medical evidence; that the prosecution miserably failed to prove its case to the extent of the appellant beyond the shadow of doubt; that pistol (P-6) was planted against the appellant to strengthen the weak prosecution case and no motive was proved against the appellant, therefore, the appeal filed by the appellant may be accepted and the appellant may be acquitted from the charge. 5. On the other hand, learned Deputy Prosecutor General for the State assisted by learned counsel for the complainant has supported the impugned judgment while controverting the arguments of learned counsel for the appellant and argued that the prosecution has proved its case against the appellant beyond the shadow of any doubt; that the prosecution eye-witnesses remained consistent on all material aspects of the case; that the prosecution case is fully supported by the medical evidence and corroborated by the recovery of .30-bore pistol (P-6), at the pointing out of the appellant; that the motive was also proved against the appellant through reliable evidence of the prosecution witnesses;, that there is no substance in this appeal therefore, the same may be dismissed. 6. Arguments heard and record perused. 7. According to the prosecution case, the motive behind the occurrence was that on the previous night of occurrence, a cow of one Munawar was stolen and the foot trackers led the footprints of the accused towards Chak No.34/GB. In Chak No.34/GB, one Irfan was residing, who was having enmity of murders with the complainant party. The said Irfan told the abovementioned Munawar that his cow was stolen by Muhammad Faryad (deceased). The abovementioned Munawar and Haq Nawaz appellant etc. had close friendship with each other and due to the abovementioned grudge, the occurrence was committed by the appellant and his co-accused. It is, therefore, evident that cow of the appellant was not stolen in this case rather the cow of one Munawar was stolen. Learned counsel for the complainant has conceded that Haq Nawaz (appellant), has no relationship with the abovementioned Munawar. It is claim of learned counsel for the appellant that as the appellant was a foot-tacker, who tried to trace out the accused responsible for the theft of the cow of the abovementioned Munawar, therefore, he has falsely been implicated in this case. I have noted that Naseer-ud-Tariq SI (PW-8), who was first Investigating Officer of this case has conceded that Haq Nawaz (appellant) and Liaqat (co-accused since P.O), started foot-detection being footdetectors and the same reached to Shahbaz Phulawar at Chak No.34-G.B. Relevant part of his statement made in this respect reads as under:- "?????it is correct that accused persons Haq Nawaz and Liaqat started foot detection being foot detector and the same reached to Shahbaz Phulawar at chak No.34/GB?????" As Haq Nawaz (appellant) was having no personal grudge or enmity against Muhammad Faryad (deceased), therefore, he had no reason to commit the occurrence. Even the learned trial Court in paragraph No.20, of the impugned judgment has disbelieved the motive part of the prosecution case, therefore, I am of the view that the prosecution has failed to prove any motive against the appellant. 8. Insofar as the ocular account of the prosecution case regarding the role attributed to the appellant is concerned, in this respect, I have noted that in the complaint Ex.PA, there is over-writing with regard to role attributed to the appellant. It is evident from the perusal of the complaint Ex.PA that initially it was alleged that Haq Nawaz (appellant), made a fire shot with his pistol, which landed on the left thigh of Muhammad Faryad (deceased) but after interpolation and overwriting the abovementioned words were changed from left thigh to right thigh and the words by putting the pistol on the thigh were also added and as such the role attributed to the appellant has been changed through interpolation and over-writing. It is further noteworthy that in the contents of the FIR (Ex.PM) and in the complaint (Ex.PA), it was alleged that Haq Nawaz (appellant), made a fire shot with his pistol after putting the same on his right thigh but Dr. Kashif Jameel (PW-9), who first medically examined Muhammad Faryad (deceased) in injured condition, did not note any blackening, burning or tattooing on injury No.2, which was on the right thigh of the deceased. He further conceded that in case of a contact fire shot, there is possibility of blackening, burning and tattooing. He also added that as there was no blackening, burning or tattooing on the injuries of the deceased, therefore, the said injuries were not contact wounds and the said injuries were caused from the range of more than three feet. Relevant parts of his statement in this respect reads as under:- "?????????There is possibility of blackening, burning and tattooing if fire shot is made by putting firearm weapon on the person (contact fire)???????????????? ????????? ??????????.As per my MLC there is no blackening, burning and tattooing on the injuries. Both are not contact fires. PW volunteer that injured might sustained firearm injuries out of the range of more than 03-feet??????." I am, therefore, of the view that there is conflict in the ocular account and the medical evidence of the prosecution to the extent of role attributed to Haq Nawaz (appellant), of making a fire shot on the right thigh of the deceased by putting his pistol on his right thigh. Learned Deputy Prosecutor General assisted by learned counsel for the complainant has next argued that there was a dying declaration of Muhammad Faryad (deceased), wherein he fully implicated Haq Nawaz (appellant), in this case but it is noteworthy that Dr. Kashif Jameel (PW-9), who initially medically examined Muhammad Faryad (deceased) in injured condition was not the medical officer, who allowed the Investigating Officer to record the dying declaration of the deceased. He did not utter a single word in this respect and the Medical Officer, who allowed to record the alleged dying declaration of the deceased was not produced in the witness box. Moreover, Dr. Kashif Jameel (PW-9), has further stated during his cross-examination that the condition of the injured was critical and in the column of history, he has mentioned that the victim did not name the assailant. Relevant part of his statement made in this respect reads as under:- "I did not mention in my MLC due to critical condition the patient was unable to speak. PW volunteer that I mentioned the pulse 110 per minute and blood pressure 90/60 that shows the critical condition. There is no scale mentioned in Medico-legal Certificate as at what limit of blood pressure or pulse makes the person unspeakable. It is mentioned in history that victim did not state the name of any assailant?????????." In order to prove the dying declaration of the deceased, the prosecution has only produced Muhammad Mansha retired SI (PW-11). He stated that he recorded dying declaration of the deceased (Ex.PF) and he also produced the abovementioned document to establish that the deceased was fit to make statement but as mentioned earlier, the relevant Medical Officer, who gave the abovementioned opinion that the deceased was fit to make statement has not been produced in the witness box. It is further noteworthy that in the examination-in-chief, Muhammad Mansha retired SI (PW-11), has stated that at the time of joining Muhammad Faryad (deceased), the then injured into the investigation of this case the father of the deceased namely Muhammad Mumtaz, Mst. Mumtaz Bibi (mother) and Muhammad Tariq (brother), were present, who joined the investigation but the abovementioned witness namely Muhammad Mumtaz (PW-1), did not utter a single word in his examination-in-chief that dying declaration of Muhammad Faryad deceased was recorded in his presence and he only denied a suggestion during his cross-examination that it was incorrect that no such statement was recorded by the police. Remaining above-mentioned witnesses of dying declaration were also not produced by the prosecution in the witness box. Neither any member of the concerned hospital staff was associated at the time of recording of statement of the deceased nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Under the circumstances, the status of abovementioned statement of the deceased was a statement under section 161, Cr.P.C and not the dying declaration of the deceased. If the abovementioned statement is considered to be statement of the deceased under section 161, Cr.P.C, then the said statement without the test of crossexamination is not worthy of reliance. In the case of "Mst. Zahida Bibi v. The State" (PLD 2006 SC 255), the Hon'ble Supreme Court of Pakistan was pleased to held as under:- "???????????This is an admitted fact that the statement of the deceased was not recorded by the Sub-Inspector of police in hospital in presence of the doctor and further neither any member of the hospital staff was associated at the time of recording the statement nor it was got verified by any official of the hospital that the statement was actually made by the deceased. Be that as it may, the status of such a statement would be hardly a statement under section 161, Cr.P.C. and not a dying declaration of the deceased. This may be seen that the dying declaration or a statement of a person without the test of cross-examination is a weak kind of evidence and its credibility certainly depends upon the authenticity of the record and the circumstances under which it is recorded, therefore, believing or disbelieving the evidence of dying declaration is a matter of judgment but it is dangerous to accept such statement without careful scrutiny of the evidence and the surrounding circumstances, to draw a correct conclusion regarding its truthfulness. The rule of criminal administration of justice is that the dying declaration like the statement of an interested witness requires close scrutiny and is not to be believed merely for the reason that dying person is not expected to tell lie. This is a matter of common knowledge that in such circumstances in preference to any other person, a doctor is most trustworthy and reliable person for a patient to depose confidence in him with the expectation of sympathy and better treatment to disclose the true facts. In the present case, in the manner in which the statement of deceased was recorded by the Sub-Inspector, would seriously reflect upon its correctness and consequently, could not be considered worthy of any credit to be relied upon as dying declaration??????.." Similarly in the case of "Farman Ahmed v. Muhammad Inayaat and others" (2007 SCMR 1825), the Hon'ble Supreme Court of Pakistan has held that dying declaration of the deceased requires independent corroboration but as mentioned earlier, in the instant case, none from the concerned hospital appeared to corroborate the abovementioned alleged dying declaration of the deceased. I am, therefore, of the view that dying declaration of the deceased has not been proved in this case in accordance with the law. 9. Insofar as the recovery of pistol (P-6), at the pointing out of Haq Nawaz (appellant), is concerned, I have noted that the report of PFSA (Ex.PV), is only regarding mechanical operating condition of the abovementioned pistol and the empties recovered from the spot (C1 to C8), did not match with the said pistol, therefore, I am of the view that the recovery of pistol (P-6), at the pointing out of the appellant is of no avail to the prosecution. 10. I have considered all the aspects of this case and have come to this irresistible conclusion that the prosecution miserably failed to prove its case to the extent of Haq Nawaz (appellant) beyond the shadow of doubt. It is by now well settled 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 doubts about the prosecution story. Reliance in this respect is placed on the judgments reported as 'Tariq Pervez v. The State' (1995 SCMR 1345) and 'Muhammad Akram v. The State' (2009 SCMR 230). 11. In the light of above discussion, I am of the view that the prosecution has failed to prove its case to the extent of Haq Nawaz (appellant) beyond the shadow of doubt, therefore, I accept Criminal Appeal No.29448-J of 2022 filed by Haq Nawaz (appellant), set aside his conviction and sentence recorded by the learned trial Court vide impugned judgment dated 09.03.2022 and acquit him of the charge by extending him the benefit of doubt. He is in custody, he be released forthwith if not required to be detained in any other case. 12. It is pertinent to mention here that Liaqat Ali (co-accused), is still a proclaimed offender in this case, therefore, case property be kept intact till his arrest and till decision of the case to his extent. The findings recorded in this case are only to the extent of Haq Nawaz (appellant) and the case of the above-mentioned Liaqat Ali, co-accused (since P.O) shall be decided on its own merits and on the basis of evidence recorded after his arrest. JK/H-14/L Appeal allowed.

Summary: Criminal Procedure Code (V of 1898)--- ----Ss.22-A, 22-B & 154---Information in cognizable cases---Power of Ex-officio Justice of Peace---Scope---Duty of S.H.O. to register FIR upon statement of complainant regardless of its authenticity and correctness---Scope---Misconduct by the police officials---Effect---In case of a cognizable offence, the complainant has to approach the Officer Incharge of such police station under whose jurisdiction such offence is said to have been committed---In such an event, the Officer Incharge of the concerned police station has no authority to refuse to record the complainant's statement and/or to refuse to register an FIR. on his complaint---If the said concerned Officer Incharge fails to or refuses to record the complainant's statement and/or to register his FIR., then the complainant has to approach the Justice of Peace under S.22-A, Cr.P.C.---On such complaint/application, if the Justice of Peace forms his independent opinion from the facts narrated to him by the complainant that a cognizable offense has been made out, the Justice of Peace is bound to issue a direction to the concerned Station House Officer for recording of FIR---Even if there is no direction of the Court, the S.H.O. has no authority to refuse to record the statement of the complainant in the relevant register irrespective of its authenticity/correctness or falsity of such statement---Primarily it is the prime duty of the superior officers in the police hierarchy to ensure discipline within the police force, which is a public service and also to keep a strict check on the conduct of such police officers---A constant watchful eye on the police officer is the need of the day and if the Competent Authority concludes that the police officer indulged in acts of misconduct that prove incorrigibility and render complete unfitness of such police personnel in the service, then the competent authority should award the penalty of dismissal from service---If a police official with a patchy record is allowed to continue in service, it would not only damage the image of the police force but will also encourage social evils in the society, which the police force is required to eliminate--- Criminal Miscellaneous Application was disposed of with a direction to D.I.G. Police concerned to hear the applicant and the police officials and pass necessary directions in case of commission of a cognizable offence by the police officials. Muhammad Ismail Lashari and others v. Government of Sindh and others 2016 SCMR 2098 rel. Applicant in person. Proposed accused Inspector Jamil Ahmed Soomro and Khalid in person. Gulzar Ahmed Malano, Assistant, P.G for the State along with DSP Nazir Ahmed Soomro, SDPO Pir JO Goth. Date of hearing: 13th May, 2024. order Adnan-ul-Karim Memon, J.--- This Crl. Misc. Application has been filed by the applicant Mushtaque Ali Khoso against, Station House Officer Police Station Ahmedpur, and two proposed accused, including police officer Jameel and a private person. The applicant has prayed that respondent No.1 / Station House Officer Police Station of Ahmedpur be directed to register his FIR against the proposed accused and that the proposed accused be directed to return to the applicant the articles robed by them from him. The applicant is also aggrieved by and dissatisfied with the order dated 23-12-2022 passed by learned IIIrd Additional Sessions Judge/Ex-Officio Justice of Peace Khairpur passed in Crl. Misc. Application No. 5094/2022, whereby the application under section 22-A and B, Cr. P.C. filed by him for registration of the FIR was dismissed. 2. The applicant who is present in person has narrated his ordeal the Police Inspector Jameel along with his accomplices robbed him of cash within the jurisdiction of PS Ahmedpur, but SHO refused to register his FIR just to support his colleague Zaffar and Muhammad Jamil, hence he filed such an application before the Ex-Officio Justice of Peace, Khairpur for registration of the FIR, but the same was also dismissed, hence he preferred the instant Crl. Misc. Application inter-alia on the ground that cognizable offenses have been committed by the proposed accused as such directions for FIR be given to the SHO of the concerned police station; that the registration of FIR is a basic right of citizen and victim, which unfortunately has been made like an unfulfilled dream for the poor citizens of the province of Sindh and due to the political influence, the registration of the FIR is not less than a miracle for common people. He lastly prayed for allowing the Criminal Miscellaneous Application with direction to the concerned SHO to record his statement under Section 154, Cr.P.C. He submits that the police officials re-indulged in many criminal cases including Inspector Jameel Khoso who has already been undergoing disciplinary proceedings by the then SSP Khairpur and recovered the detainee from his custody; the applicant further submitted that the police officials are robbing the people under garb of the police uniform and weapon and their activities are rampant in the society at large, as such the Chief Justice of this Court has already taken cognizance of the matters and directed that the police officials who are indulged in criminal activities be brought to book forthwith. 3. The proposed accused 3 to 5 have filed detailed objections to oppose this Crl. Misc. Application on the premise that there was/is dispute over the property and both the private respondents are nephews of the applicant and civil litigation is pending before the Court of law; that no any adverse remarks had been passed by the then SSP Khairpur against Inspector Jameel as portrayed by the applicant. SDPO Pir Jo Goth has filed statement with CRO report of respondent No.3 Zaffar and respondent No.4 Khalid and opined that no criminal record was found against them. 4. The aforesaid stance has been refuted by the applicant. 5. I have given due consideration to the submission made by the parties and have carefully gone through the contents of the instant Criminal Miscellaneous Application as well as the application addressed to the SHO concerned and learned IIIrd Additional Sessions Judge/Ex-Officio Justice of Peace Khairpur in Criminal Miscellaneous Application No. 5094/2022. 6. The law on this point is now well settled that in case of a cognizable offence, the complainant has to approach the Officer Incharge of such police station under whose jurisdiction such offence is said to have been committed. In such an event, the Officer Incharge of the concerned police station has no authority to refuse to record the complainant's statement and/or to refuse to register an FIR on his complaint. If the said concerned Officer Incharge fails or refuses to record the complainant's statement and/or to register his FIR, then the complainant has to approach the Justice of Peace under Section 22-A, Cr.P.C. On such complaint/application, if the Justice of Peace forms his independent opinion from the facts narrated to him by the complainant that a cognizable offense has been made out, the Justice of Peace is bound to issue a direction to the concerned Station House Officer for the recording of FIR. He submitted that even if there is no direction of the Court, the S.H.O. has no authority to refuse to record the statement of the complainant in the relevant register irrespective of its authenticity/correctness or falsity of such statement. 7. So for as the role of the police officials in criminal activities is concerned, the Supreme Court of Pakistan in the case of Muhammad Ismail Lashari and others v. Government of Sindh and others (2016 SCMR 2098), wherein it was observed as under:- "conduct prejudicial to good order or service discipline or conduct unbecoming of an officer and a gentleman or involvement or participation for gain either directly or indirectly in industry, trade or speculative transactions or abuse or misuse of the official position to gain undue advantage or assumption of financial or other obligations to private institutions of persons such as may cause embarrassment in the performance of official duties or functions." 8. Similarly, "misconduct" based on which disciplinary action can be taken under the Sindh Police (Efficiency and Discipline) Rules, 1988 means: "Misconduct" means conduct prejudicial to good order or discipline in the Police Force, or contrary to the government Servants (Conduct) Rules or unbecoming of a Police Officer and a gentleman, any commission or omission which violates any provision of any law or rules regulating the function and duty of a Police Officer or to bring or attempt to bring political or other outside influence directly or indirectly to bear on the Government or any Government Officer in respect of any matter relating to the appointment, promotion, transfer, punishment, retirement or other conditions of service of a Police Officer." 9. Primarily it is the prime duty of the superior officers in the police hierarchy to ensure discipline within the police force, which is a public service, and also to keep a strict check on the conduct of such police officers. A constant watchful eye on the police officer is the need of the day and if the Competent Authority concludes that the police officer has indulged in acts of misconduct that prove incorrigibility and render complete unfitness of such police personnel in the service, then the Competent Authority should award the penalty of dismissal from service. 10. Touching the role of police officials, upon perusal of Police Rule, 16.2, its scope is wide and the object behind it is to discipline the police force and to ensure that the police officers in uniform shall not behave in a manner which, entails patronizing crime or other social evils. The scheme which seems behind the Rule is to ensure that the police officials in the discharge of their duties shall act in a manner that should restore confidence in the public at large. It is well-settled law now that if a police official with such a patchy record is allowed to continue in service, it would not only damage the image of the police force but will also encourage social evils in the society, which the police force is required, to eliminate. 11. In view of the above facts and circumstances of the case, DIGP Sukkur is directed to screen out all police officials performing duties in the Sukkur Region with patchy service records in their dossier and initiate departmental proceedings against them forthwith and complete such proceedings within a reasonable time under the dicta laid down in an identical case by the Supreme Court in the case of Muhammad Ismail Lashari and others v. Government of Sindh and others (2016 SCMR 2098). He is also directed to ensure discipline within the Sukkur Region police force, which is a public service, and also to keep a strict check on the conduct of such police officers who are indulged in criminal activities in the Sukkur region. He shall also ensure that the police officials who are good in reputation be posted on administrative posts and the officers who are indulged in criminal cases and facing criminal trial shall be taken care of in accordance with law. 12. This Criminal Miscellaneous Application is disposed of in the above terms. In the meantime, the applicant and police officials shall also be heard on the subject issue by DIGP Sukkur and pass necessary directions if a cognizable offense is committed by the police officials. 13. Let a copy of this order be communicated to the Deputy Inspector General of Police, Sukkur for information and compliance. SA/M-64/Sindh Order accordingly.

Summary: (a) Evidence--- ----Trial in civil case---Principle---Civil cases are to be decided on preponderance of evidence by reading evidence as a whole, rather than cherry-picking certain aspects of pleadings and/or evidence---As such the same helps in achieving a predictable standard pattern in reaching a just decision. (b) Civil Procedure Code (V of 1908)--- ----S. 115---Revisional jurisdiction---Scope---While revisional powers may be circumscribed and cordoned off by conditions of excess of jurisdiction, failure to exercise jurisdiction and illegal exercise of jurisdiction, it is very vast as it is in the nature of certiorari and rather travels beyond the same. (c) Specific Relief Act (I of 1877)--- ----Ss. 42 & 54---Suit declaration and injunction---Documentary and oral evidence---Preference---Petitioners / plaintiffs claimed to be the legal heirs of deceased owner of suit property who had registered sale deed in favour of their predecessor-in-interest---Validity---Pleadings can neither be treated as evidence nor documentary evidence can be brushed aside on account of weak oral testimony of plaintiffs, more particularly when the case is that of inheritance and based on a registered document, which is more than 58 years old and holding the field---Disconnect in the pleadings of petitioners / plaintiffs and also oral evidence was not convincing for High Court to non-suit them when clearly registered document in favour of the predecessor-in-interest of petitioners / plaintiffs was available on record---Document in favour of respondents / defendants was a sale deed dated 29-03-2003 that acknowledged the fact that the suit property was ancestral and was not self-acquired property of predecessor-in-interest of respondents / defendants under prior unregistered document---High Court set aside concurrent findings of facts by two Courts below as both the Courts below erred in appreciating legal question involved and also could not appreciate the material documentary evidence on record---Suit filed by petitioners / plaintiffs was decreed in their favour---Revision was allowed, in circumstances. Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another PLD 1975 SC 678 and Noor Muhammad v. Niaz Ahmed and others 2021 LHC 8093 ref. Rao Muhammad Adnan Jamshaid Khan, Rao Jamshaid Ali and Maher Adan Ahmad Malik for Petitioners. Muhammad Arif Mehboob Sheikh and Sheikh Muhammad Zulfiqar for Respondents Nos. 1 to 11. Nemo for Respondents Nos. 12(i) to 13(xiii). Dates of hearing: 30th January, 6th, 22nd and 26th February, 2024. Judgment Anwaar Hussain, J .--- The petitioners were the plaintiffs before the Trial Court. Suit for declaration was filed in respect of the disputed property, detail whereof is given in the headnote of the plaint, against the respondents, on the basis of registered sale deed dated 28.12.1968 with the averments that one Ghulam Muhammad alias Gamoon purchased the suit property. Ghulam Muhammad alias Gamoon had two wives, namely, Mst. Zainab Bibi and Mst. Rehmat Bibi. Mst. Zainab Bibi was mother of the petitioners, whereas Mst. Rehmat Mai was mother of one Muhammad Nawaz who was predecessor-in-interest of the respondents Nos.1 to 11 ("the respondents") as also predecessor of proforma respondents. Per plaint of the suit, Ghulam Muhammad alias Gamoon died on 23.09.1991 and the step brother of the petitioners, namely, Muhammad Nawaz (deceased), predecessor-in-interest of the respondents Nos.1 to 11, who was already in control of the suit property, kept on lingering the matter of inheritance, on one pretext or the other, and finally died whereafter the respondents in collusion with the Revenue Staff got registered sale deed bearing Document No.307 (erroneously referred as 1471 in the plaint) dated 29.03.2003, hence, the suit was instituted seeking declaration that the suit property belonged to late Ghulam Muhammad alias Gamoon and that the respondents as well as the petitioners are entitled to the same as legal heirs of the said deceased. Prayer was also made for cancellation of the sale deed dated 29.03.2003. 2. Contesting written statement was filed by the respondents with the averments that it was deceased Muhammad Nawaz who purchased the suit property from one Muhammad Jamal son of Sohanra, through a written agreement to sell dated 02.11.1967, which fact has been duly incorporated in the record of Excise and Taxation department and after the death of Muhammad Nawaz, respondent No.1 (widow) along with respondents Nos. 2 to 5 (daughters) have alienated their share in the suit property to respondents No.6 to 11 (sons), therefore, the claim of the petitioners that the suit property belonged to Ghulam Muhammad alias Gamoon is false. Issues were framed and after recording evidence of the parties pro and contra, the suit of the petitioners was dismissed by the Trial Court, vide judgment and decree dated 28.05.2016, which was upheld by the Additional District Judge, Layyah, vide judgment and decree dated 29.01.2018. 3. Learned counsel for the petitioners submit that the findings of the Courts below are based on misapplication of law as also result of misreading and non-reading of the record and are liable to be set-aside. Adds that the sale deed in favour of Ghulam Muhammad alias Gamoon dated 28.12.1968 is a registered document and the same has been ignored by the Courts below and an unregistered document dated 02.11.1967 relating to the sale of the suit property, in favour of the deceased Muhammad Nawaz, who was step elder brother of the petitioners has been preferred, which is not sustainable in the eyes of law. Adds that in the presence of a registered document, an unregistered document, even if earlier has no value and the same does not create any title and therefore, the Courts below were not justified to dismiss the suit filed by the petitioners. 4. Conversely, learned counsel for the respondents support the impugned findings with the averments that the value of the property was below Rs.100/- and hence, in terms of Section 54 of the Transfer of Property Act, 1882 ("the Act, 1882") read with Section 17 of the Registration Act, 1908 ("the Act, 1908"), the same was not required to be compulsorily registered and therefore, the prior instrument is to be preferred over the subsequent document. Add that the petitioners averred incorrect facts in their plaint inasmuch as if Muhammad Nawaz died prior to Ghulam Muhammad alias Gamoon, its illogical on part of the petitioners to assert that they were claiming their share of inheritance in the property from former after the demise of Ghulam Muhammad alias Gamoon. Further avers that the entire case of the petitioners was based on hearsay and therefore, the Courts below correctly dismissed the suit of the petitioners. 5. Arguments heard. Record perused. 6. The following questions of law require opinion of this Court: i. Whether the Courts below were justified in giving preference to prior unregistered document over a subsequent registered document pertaining to the same immovable property? ii. Whether the incorrect assertion of facts in the plaint and disconnect of the pleadings and evidence of the plaintiff can be made basis of the findings even if the documentary evidence available on record depicts otherwise? 7. The core issue involves the preference to be attached between the prior unregistered and a later registered document regarding the same property. Admittedly, the suit property was earlier owned by Jamal Sohanra who statedly executed the prior agreement to sell in favour of Muhammad Nawaz. Learned counsel for the respondents argued that as the value of suit property was less than Rs. 100/, therefore, the unregistered agreement to sell was not required to be registered. The argument is based on the jaundiced and lopsided view and consideration of the law in this regard, which overlooks Section 50 of the Act 1908. Subsection (1) of Section 50 of the Act 1908 lays down general principle that a registered document, even if falling under Section 18, regarding the immovable property shall take effect as regards the property therein against every unregistered document relating to the same property irrespective of the nature of the unregistered document. Section 50 of the Act 1908 reads as under: "50. Certain registered documents relating to land to take effect against unregistered documents.- (1) Every document of the kinds mentioned in clauses (a), (b), (c) and (d) of Section 17, subsection (1), [and every document registrable under Section 18, in so far as such document effects immovable property or acknowledges the receipt or payment of any consideration in respect of any transaction relating to immovable property], shall, if duly registered, take effect as regards the property comprised therein against every unregistered document relating to the same property, and not being a decree or order, whether such unregistered document be of the same nature as the registered document or not: Provided that the person in possession of the property under an unregistered document prior in date, would be entitled to the rights under Section 53-A of the Transfer of Property Act, 1882 if the conditions of that Section are fulfilled: ?." (Emphasis supplied) First proviso to Section 50(1) creates an exception by providing that where the person is in possession of the property under an unregistered document, prior in time, he would be entitled to the protection under Section 53-A of the Act, 1882 provided further if the conditions of Section 53-A are fulfilled, which for ease of reference is reproduced hereunder: "53-A. Part performance. - Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee, has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof." (Emphasis supplied) Perusal of Section 53-A of the Act 1882, particularly the proviso thereof, provides that nothing in the said Section shall affect rights of the bona fide purchaser for consideration who has no notice of the prior written contract or the part performance thereof. 8. Having above legal position in respect of the registered document and unregistered document in sight, it has been noted that admittedly, Ghulam Muhammad alias Gamoon in whose favour the registered sale deed was executed was the real father of Muhammad Nawaz (as also predecessor-in-interest of the petitioners) in whose favour the unregistered sale deed was executed. As a natural human conduct, no father would enter into any contract and/or execute a registered document in the nature of the sale deed for immovable property if he had any notice of a prior contract or part performance of the contract for the same property executed by the same vendor in favour of his own son (deceased Muhammad Nawaz in the present case), who was admittedly residing with the deceased father and had control of the suit property as well. Suffice to observe that it has never been the case of the respondents that deceased Muhammad Nawaz and Ghulam Muhammad alias Gamoon-the said father and son were having such acrimonious relation to the extent of both purchasing the same property from the same vendor, to their mutual detriment and without notice of the father that the suit property had already been purchased by his son through unregistered document and the possession thereof had been transferred. Thus, either the unregistered sale deed did not exist at the time when the Ghulam Muhammad alias Gamoon-father of deceased Muhammad Nawaz and the petitioners purchased the property or Ghulam Muhammad alias Gamoon had no notice of the agreement to sell between the Muhammad Nawaz and the vendor or part performance thereof. The earlier situation casts no aspersion on the validity and genuineness of the registered sale deed in favour of deceased Ghulam Muhammad alias Gamoon; in case of later, the respondents cannot claim the protection of Section 53-A and by extension that of proviso to Section 50 of the Act, 1908. Thus, the contention of learned counsel for the respondents is devoid of any persuasion that the prior written agreement to sell is to be preferred over the subsequent registered document. Even otherwise, the burden of proof, as to the knowledge of unregistered document by the father of the petitioners was on the respondents' side which they failed to discharge. Therefore, in peculiar facts and circumstances of the case, this Court is of the view that an unregistered document even if prior in time cannot be given preference to registered document more particularly when the latter document is holding the field and no challenge has been laid to the same by the respondents. 9. Adverting to the second question formulated hereinabove, the respondent side made full-throttle arguments that pleading of the petitioners and the evidence is replete with self-defeating contradictions as the petitioners/plaintiffs took contradictory stance in the pleadings as also in oral evidence and the Courts below have rightly relied upon the incorrect facts in pleadings as also the statement of petitioner No.1 to draw the conclusion that if Muhammad Nawaz (predecessor-in-interest of the respondents) died prior to the death of Ghulam Muhammad alias Gamoon, how the petitioners were asking Muhammad Nawaz to effect the inheritance in their favour in accordance with the registered document. It is also relevant to note that in para 3 of the plaint, the petitioners asserted as under: While appearing as PW.1, petitioner No.1 deposed as under: Moreover, when cross-examined, petitioner No.1 (PW.1) stated as under: Operative part of the impugned judgment of the Trial Court reads as under: "10.?To support their version they produced Muhammad Ramzan son of Ghulam Muhammad as PW-1, by supporting his own version he stated that his father purchased shop situated at Chobara Road consisting of 3-M 2-S. He further stated that his brother Muhammad Nawaz died before two months of his father death. He stated that he demanded his share of inheritance from Muhammad Nawaz after their father death who advised him to be patient. However, this statement was self contradictory..." Evidentiary resume as also the plaint of the suit of the petitioners clearly depict that even though registered document was in favour of predecessor-in-interest of the petitioners as also deceased Muhammad Nawaz, the petitioners' side rendered their case porous and pervious by making incorrect averments in the plaint. Though there is no satisfactory answer available with the petitioners in respect of the above contradictory stance, learned counsel for the petitioners assert that the same is result of slackness and the same cannot be made basis for allowing impugned findings to hold the field, which are perverse and against the law. 10. This Court is of the view that the Courts below missed the forest for the trees. The contradictions in the pleadings and the evidence reproduced above in the ordinary course might have been highly detrimental to the case of the petitioners, however, it is settled proposition of law that civil cases are to be decided on preponderance of evidence by reading the evidence as a whole rather cherry-picking certain aspects of the pleadings and/or evidence. This helps in achieving a predictable standard pattern in reaching a just decision. The vital issue in the matter was the preference to be attached to the registered or unregistered document, which certainly does not involve as to the prior death of Muhammad Nawaz even though Muhammad Nawaz pre-deceased his father-Ghulam Muhammad alias Gamoon and the petitioners wrongly averred in the pleadings that after the death of Ghulam Muhammad alias Gamoon, they asked Muhammad Nawaz to transfer the suit property to them to the extent of their share but he did not do so on one pretext or the other whereas Muhammad Nawaz had pre-deceased his father. It is worth mentioning that though Muhammad Nawaz pre-deceased his father Ghulam Muhammad alia Gamoon and there is a contradiction in the pleadings of the petitioners which has been made basis of dismissal of the suit of the petitioner, the said aspect also brings forth the malice and fraud committed by the respondents that has been completely ignored by the Courts below. It is well settled that the inheritance of a person opens upon his death. Therefore, even if it is acknowledged that deceased Muhammad Nawaz was the owner of the suit property, the death of Muhammad Nawaz opened up his inheritance and Ghulam Muhammad alias Gamoon, the father of Muhmmad Nawaz (as also the predecessor of the petitioners), who was alive at the relevant time, was undoubtedly also legal heir of Muhammad Nawaz. A question arises as to how and why the respondents gobbled up the inheritance share of Ghulam Muhammad alias Gamoon. There is no explanation available on record in this regard and Courts below have also ignored this aspect. In fact, this goes on to reflect the desperation, which induced the respondents to deprive the petitioners with their inheritance share in the suit property. 11. It is also to be kept in sight that, admittedly, the suit property has been recorded in the name of deceased Muhammad Nawaz by the Excise and Taxation Office concerned on the strength of an unregistered document and after death of Muhammad Nawaz, respondents Nos.1 to 5 (widow and daughters) have alienated their purported share in the suit property to respondents Nos.6 to 11 (sons) through impugned registered sale deed dated 29.03.2003 on the strength of the said entry in Excise and Taxation Office concerned. The contents of the impugned registered sale deed are interesting, which read as under: (Emphasis supplied) Before observing anything about the above referred document and/or the contents thereof and its effect on outcome of this case, this Court would like to state a settled proposition of law as to the tentacles of the revisional power of this Court. The question as to the scope and extent of revisional powers of a High Court fell for consideration before the Supreme Court in case reported as "Manager Jammu and Kashmir State Property in Pakistan v. Khuda Yar and another" (PLD 1975 SC 678) wherein the Supreme Court at Page-697 observed the simultaneous stiffness as well as agility of revisional powers in the following manners: "?The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy of certiorari and in fact goes beyond that at least in two respects inasmuch as: Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and Secondly, the Court "may make such order in the case as it thinks fit." (Emphasis supplied) Thus, it is obvious that while the revisional powers may be circumscribed and cordoned off by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, it is very vast being in the nature of certiorari and rather travels beyond the same. While relying upon Manager Jammu 7 Kashmir State property (case) supra, this Court in case bearing C.R. No.852-D/2003 titled "Noor Muhammad v. Niaz Ahmad etc." (available at Lahore High Court website at 2021 LHC 8093) held that High Court in exercise of its revisional and visitorial jurisdiction can undertake the exercise of analysis of the evidence for the first time regarding a piece of evidence not analysed and/or overlooked by the Courts below. With this legal position at the forefront, this Court, though not argued in this manner, inquired about the contents of the impugned sale deed dated 29.03.2003 executed by the respondents and recitals whereof have been reproduced hereinabove, which describes and refers the suit property being ancestral ( ___ /Jaddi). The term used in the admitted document (the impugned sale deed) in favour of respondents Nos.6 to 11 hardly needs any judicial elaboration. It means the paternal or ancestral. If the respondents themselves admit that the suit property was not self-acquired asset of the deceased Muhammad Nawaz rather was in the ownership of Muhammad Nawaz as an ancestral property , their claim of ownership on the basis of unregistered document falls, more particularly, when the registered sale deed in favour of Ghulam Muhammad alias Gamoon pertaining to the same property is intact and not cancelled. This crucial aspect of the case squarely brings the matter within the purview of the cardinal principle of evaluation of evidence that 'a man may lie but the documents do not'. The Courts below clearly singled out incorrect assertion of a fact and discrepancies in evidence of the petitioners at the cost of the central issue regarding the preference to be attached to the registered document over an unregistered document and ignoring the contents of the impugned sale deed dated 29.03.2003, which this Court is obligated to correct in exercise of its revisional jurisdiction in terms of Section 115 of the Code of Civil Procedure, 1908. 12. Moreover, mere fact that the respondents are in possession of the suit property and their names exist in Excise and Taxation record and the utility bills for the connections installed thereat are in the name of deceased Muhammad Nawaz has no relevance when admittedly, the deceased Muhammad Nawaz was real eldest son of Ghulam Muhammad alias Gamoon, born from his first marriage and was residing with deceased Ghulam Muhammad alias Gamoon. It appears that deceased Muhammad Nawaz was put in possession of the suit property as a licensee by his father (Ghulam Muhammad alias Gamoon) and had the complete control thereof as asserted by the petitioners and corroborated by the attending circumstances of the case. Therefore, the petitioners who are children born from the second wedlock of deceased Ghulam Muhammad alias Gamoon were justified in relying on the hearsay evidence to substantiate their inheritance claim based on a registered deed. 13. At this juncture, it is imperative to observe that neither the pleadings can be treated as evidence nor documentary evidence can be brushed aside on account of the weak oral testimony of the plaintiffs, more particularly, when the case is that of inheritance and based on a registered document, which is more than 58 years old and holding the field. Therefore, the disconnect in the pleadings of the petitioners as also the oral evidence is not convincing for this Court to non-suit them when clearly, registered document in favour of the predecessor-in-interest of the petitioners is available on record as also the document in favour of the respondents, i.e., impugned sale deed dated 29.03.2003 that acknowledges the fact that the suit property was ancestral and was not self-acquired property of predecessor of the respondents-deceased Muhammad Nawaz, under prior unregistered document. 14. In view of the preceding discussion, this Court is of the view that both the Courts below have erred in appreciating the legal question involved and also could not appreciate the material documentary evidence on record. Therefore, this petition is allowed; the concurrent findings of the Courts below are set aside; and the suit of the petitioners is decreed. MH/M-107/L Revision allowed.

Summary: Control of Narcotic Substances Act (XXV of 1997)--- ----S.9---Possession and transportation of narcotics---Appreciation of evidence---Safe custody and safe transmission of the recovered substance to laboratory not proved---Prosecution case was that 10-kilograms charas lying in a bag was recovered from the possession of the accused---Complainant's testimony reflected that the charas was in a white sack when seized---Chemical analysts' report did not mention color of the bag in which the charas was sent---Contrary to the witness testimony, the charas de-sealed in Court was in a red sack---Memo. of recovery or the witness testimonies did not state whether anything was written or printed on the sack in which the charas was kept or on the charas inside---Complainant allegedly had a lapse of memory at trial and claimed that he could not remember whether anything was written---Memo. of recovery did not record any writing---However, complainant admitted that the charas de-sealed and shown to him in Court, apart from being in a different color bag, also had "555" (on some) and "Black Gold" (on others) written on it--- Said numbers were not mentioned in the FIR or the memo. of recovery---Chemical analyst's report showed that there were twenty patties of charas in the bag sent to him and that all the patties had "555" and a gold stamp printed on them---Complainant further acknowledged that plastic wrapping was also available in the sealed bag that was de-sealed in Court, the presence of which was also not mentioned in the documentation---An accurate description of the commodity seized must be written in the recovery memo.---Color and description of the narcotics seized, as well as the description of the packing and any visible marks, signs, photos, logos, and numbers on the seized articles, should be written in the recovery memo.---Description should tally with the description noted by the chemical laboratory when the package is sent to it and then with the case property produced at trial---Safe custody and transmission would be compromised if the seizure descriptions did not match---Prosecution failed to prove safe and secure custody and transmission, creating doubt---Prosecution failed to prove its case beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances. Ameer Zeb v. The State PLD 2012 SC 380; Muhammad Arif v. The State 2023 YLR 2369; Khan Afzal and another v. The State 2022 PCr.LJ 52; Arzi Gul v. The State 2020 PCr.LJ 178 and Sherazad v. The State 2012 YLR 1042 rel. Abdul Baki Jan Kakar for Appellant. Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State. Date of hearing: 4th March, 2025. Judgment Omar Sial, J.--- Bahawal Sheikh was arrested on 24.09.2023 by A.S.I. Nazir Hussain Chandio from a graveyard when ten kilograms of charas were lying in a bag in front of him. FIR No. 195 of 2023, under section 9(d) of the Control of Narcotic Substances Act, 1997, was registered at the Foujdari police station in Shikarpur. 2. The prosecution story is that a police party headed by S.I. Nazeer Hussain Chandio and consisting of P.C. Abdullah, P.C. Shafique Ahmed, and D.P.C. Ali Ahmed Brohi was on regular patrol when it received information that notorious drug peddler Bhoroo Shaikh is present in a graveyard with charas in his possession. The police party went to the cemetery and saw a bag lying on the ground. Two people were standing close to it. One of the persons, Bhoroo Shaikh, ran away whereas the other, Bhawal Shaikh, the appellant, was arrested. 3. Shaikh pleaded not guilty and claimed to be tried. At trial, the prosecution examined S.I. Nazeer Hussain Chandio (the complainant); P.C. Abdullah Lohar Baloch, who witnessed the arrest and recovery, WPC Abdul Wahid, the maalkhana incharge and S.I. Ali Hussain Shah (the Investigating Officer). In his section 342, Cr.P.C. statement, Shaikh denied any wrongdoing and said that he was arrested from a graveyard on 24.09.2020, and that the charas belonged to Bhoroo Shaikh, whom the police had let go. Shaikh was convicted and sentenced to twenty years and a fine of Rs. 800,000. 4. We have heard the learned counsel and re-appraised the evidence. For brevity, their specific arguments are not being reproduced but are reflected in our observations and findings below. 5. We find the story presented by the prosecution to be somewhat unreal. A police party consisting of three armed and able-bodied men receives information from the ever-present "spy" that a notorious drug peddler, Bhoroo Shaikh, is present at an identified place and that he has narcotics with him. The police reach that place, which is a graveyard. In that graveyard, which evidence shows was a 25 acre of land, the police party reaches a spot where they see a white sack lying on the ground in front of two men, the allegedly notorious Bhoroo Shaikh, and the appellant, and while Bhoroo Shaikh manages to make his escape good, rather effortlessly, the appellant Bahawal Shaikh, keeps standing his ground and the police comes to him and arrests him. To us, the story is illogical and impractical, if not outright absurd. The recovery memo. refers to the entire 25-acre graveyard as the place of the occurrence. At trial, the prosecution witnesses struggled to explain precisely where the recovery occurred. The prosecution has no cogent argument to give whether it's even logical that a sane person, albeit a criminal, would stand and watch the police coming straight to him but still keep standing with 10 kgs of charas lying in front of him,all while the kingpin Bhoroo Shaikh manages to effortlessly escape from right under the noses of the raiding party that had come to get him specifically. Bhoroo was never arrested in this case, though the witness admitted that he lived in the same neighborhood. There could be some truth in what the appellant said in his section 342 Cr.P.C. statement that a Shaikh got a Shaikh and that Bhoroo is the actual offender, but the police have let him off due to some reasons. 6. Our astonishment at the prosecution story apart, we note an important legal aspect in this case. That is one of safe custody and transmission of the narcotics. This is not a run-of-the-mill case in which an important witness is not examined, and hence, the chain is broken. In this case, the prime question is how much relevance should be given to the packing and description of the charas. 7. S.I. Nazeer Hussain's testimony reflects that the charas was in a white sack when seized. The chemical analysts' report mentions no color of the bag in which the charas was sent in. Contrary to the witness testimony, the charas de-sealed in court was in a red sack. In his testimony, Nazeer Hussain acknowledged that "it is correct to suggest that the color of the bachka produced today is red with lining. It is correct to suggest that the color of the bachka is not white." 8. The memo. of recovery or the witness testimonies did not state whether anything was written or printed on the sack in which the charas was kept or on the charas inside. S.I. Nazeer Hussain Chandio had a lapse of memory at trial and claimed that he could not remember whether anything was written; however, the memo. of recovery does not record any writing. However, he admitted that the charas de-sealed and shown to him in court, apart from being in a different color bag, also had "555" (on some) and "Black Gold" (on others) written on it. These numbers are not mentioned in the FIR or the memo. of recovery. The chemical analysts' report shows that there were twenty patties of charas in the bag sent to it and that all the patties had "555" and a gold stamp printed on them. S.I. Nazeer Hussain Chandio. Chandio further acknowledged that plastic wrapping was also available in the sealed bag that was de-sealed in court, the presence of which was also not mentioned in the documentation. He also admitted that though he had recovered ten packets of charas, and the same was recorded in the FIR and memo, the bag opened at trial had twelve pieces of varying sizes of charas in it. This was in contradiction to what P.C. Abdullah Lohar Baloch said. He believed that the recovered chars were all in equally sized pieces. P.C. Abdullah Lohar Baloch also testified that he did not remember anything written on the bag or the charas packets. He justified it by saying that it was dark. We are unconvinced with such an explanation because if there was enough light for the policemen to draft memos. on the spot, there would surely be enough light to examine the charas. The seizing officer and the witness also remained at odds on whether they attempted to apprehend the fleeing Bhoroo Shaikh. According to the seizing officer, no attempt or effort was made by any member of the police party, whereas the witness to the recovery said that Bhoroo had been chased on foot by P.C. Shafique Ahmed, but he still managed to flee. Further doubt was created when P.C. Shafique Ahmed noted at trial that "only Allah knew who the actual owner of the charas was." 9. The central legal issue in the admissibility of narcotics evidence in court is the collecting officer's ability to recognize the evidence as the same evidence obtained from the accused or the crime scene. This is possible only if the evidence is collected correctly, marked, handled, and stored, and each step is comprehensively documented. This legal obligation is known as establishing the chain of custody. The chain of custody serves as a documented record detailing who possessed the evidence, from its collection to its destruction. This documentation safeguards the integrity of the evidence. Individuals who have handled the evidence form the "links" in the chain. Each transfer of the evidence introduces a new link. If any link in this chain is not recorded correctly, it compromises the chain, potentially rendering the evidence inadmissible in court. 10. The narcotics law, as it has evolved in the country, carries stringent punishments and leans heavily in favor of the State. We find it quite remarkable that the prosecution story is identical in nearly a hundred percent of the cases that come to this court (of smaller recoveries). A man is seen carrying a black shopping bag (which used to be inevitably blue in the 2014 to 2016 years) in often a crowded area, and miraculously, a police part on routine patrol sees him and finds him suspicious. Inevitably, narcotics are recovered from this person. Section 25 of the CNS Act, 1997 expressly excludes the applicability of section 103, Cr.P.C., and it has been held that police officers are good witnesses. In most cases, the complainant is the same as the investigator, and one wonders why an investigator would decide against himself. In such a situation, there is very little an innocent person can do if subjected to police excesses. The police often abuse the law to settle their scores. In such a situation, it becomes critical that for the very least, safe custody and transmission of the narcotics from the point of seizure to its deposit in the chemical laboratory is meticulously established and proved at trial. In Ameer Zeb v. The State (PLD 2012 SC 380), it was noted, "We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution." 11. The reports that the chemical laboratories, particularly the Rohri laboratory, are issuing are stereotypical and, at times, dubious. A new trend started by the laboratory, which we find suspicious, is that the gross weight of the seized narcotics, according to the laboratory, is always twenty-five or forty grams above the one-kilogram or five-kilogram benchmarks. This happens when the memo. of arrest and recovery shows an exact amount of one or five kilograms having been seized. The benchmarks are essential as, in our country, the quantum of sentences is connected not to a sample's toxicity and narcotic content but to its weight. One wonders how when the seizing officer has weighed the narcotics, claims his measurement was accurate, and weighs the seizure with the packing of the narcotics, yet the gross weight he notes in the recovery memo. is always twenty-five to forty grams less than what the laboratory weighs it as. There are no descriptions or photographs of the seals affixed on the seizure packets when received by the laboratory, nor are there descriptions or pictures of the seals that the laboratory affixes on the packets after analysis. All that the report says is that the seals were "satisfactory." This does not mean anything. We have yet to come across a report which shows that the seals were in an "unsatisfactory" condition. Often, one wonders if the tests that the laboratory claims to have carried out are indeed conducted or if a favorable report stereotypically and mechanically is printed out. We fail to understand why law enforcement agencies do not take photographs of the seizure, sampling, and sealing process. The technology is available on nearly every phone carried by law enforcement. Indeed, the Supreme Court in Criminal Petition No. 1192 of 2023 also raised a similar concern -"If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure 3 and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. Non-compliance of law enforcers to take photographs unnecessarily raises doubts that the police may have an ulterior motive to do so. The Punjab Forensic Science Agency (the leading forensic laboratory in the country) recommends that the packet of the narcotic seizure should be sealed with a molten wax seal to document specimen integrity. A reference seal sample must also be attached along with the sealed packet. There is no reason for the chemical laboratories of this province not to do the same. 12. An accurate description of the commodity seized must be written in the recovery memo. The color and description of the narcotics seized, as well as the description of the packing and any visible marks, signs, photos, logos, and numbers on the seized articles, should be written in the recovery memo. This description should tally with the description noted by the chemical laboratory when the package is sent to it and then with the case property produced at trial. We are guided by the wisdom of the Supreme Court in the Ameer Zeb case (supra) when it noted, "We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof." Safe custody and transmission will be compromised if the seizure descriptions do not match. 13. It would not be out of place to record that a Division Bench of this Court in Mohammad Arif v. The State (2023 YLR 2369) has observed: "According to the prosecution, he had a black bag in his hand, however the same bag finds no further description neither in the memo. of arrest and recovery, nor in the FIR. Further description of the same however came forth in the deposition of PW-1 SIP Arz Muhammad who, while being cross-examined, admitted that the bag was in fact of navy blue colour and had "Old is Gold" inscribed on it. As per the prosecution case, the bag contained 10 packets of opium which were weighed and found to be 9.8 kilograms while 4 packets of charas were also found within the bag which were weighed and found to be 5 kilograms. These packets, so recovered, do not find any description as to the nature or content of the outer coverage of the same; whether they were wrapped in plastic, paper or cloth. These omissions strike at the core of the prosecution case as the same would have otherwise helped establish that the case property available in Court is in fact the same." 14. Another Division Bench of this Court in Khan Afzal and another v. The State (2022 PCr.LJ. 52) has observed, "We have also observed that while the samples drawn from each 1 kg packet were stated in the Memo. or Arrest and Seizure as well as the depositions of the prosecution witnesses to have been wrapped in white paper and then sealed, the Chemical Examiners Report shows each of the white paper packets received to have contained 4 black brown coloured pieces, each wrapped in plastic. Under the circumstances, this discrepancy casts further doubt in the matter." 15. The Lahore High Court in Arzi Gul v. The State (2020 PCr.LJ 178) has held: "On de-sealing the case property P-1 pertaining to accused Jan Marry the witness admitted it correct that a wrapper of dark brown colour is recovered from the parcel. He admitted that there is no white colour shopping bag in the sealed parcel. He further affirmed that charas present in the court is in the shape of countless small pieces and not in shape of slabs." This state of affairs has also raised question mark about safe custody and production of case property before the Court because case property according to own statement of prosecution witness was in shape of slabs and wrapped in white colour plastic shopping bag but case property produced in court was in wrapper of dark brown color and in shape of countless small pieces; meaning thereby that allegedly recovered charas has not been produced in the Court, which fact has also smashed the case of prosecution. Hence, neither safe custody nor production of allegedly recovered charas in Court could be proved by the prosecution." 16. In Sherazad v. The State (2012 YLR 1042), it was observed, "However Chemical Analyst states that 5 separate packets were delivered for chemical examination, three packets contained one slab each one packet contained two black and brown slabs each wrapped in a plastic panne and 5th packets contained multiple black, brown colored rods, each wrapped in plastic panne. We may observe here that neither in the FIR nor in the evidence of P.W.1 or P.W.2 any panne have been mentioned. If the sample was taken from 160 packets separately, how could there be three slabs in three packets and one packet containing two slabs? This creates first doubt around the story of the prosecution." 17. Given the above, the prosecution failed to prove safe and secure custody and transmission, creating doubt. This doubt and the fancy prosecution story make us conclude that the prosecution failed to prove its case beyond a reasonable doubt. The appeal is allowed, and the appellant is acquitted of the charge. He may be released forthwith if not required in any other custody case. JK/B-3/Sindh Appeal allowed.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Inordinate delay in lodging the FIR and private complaint---Consequential---Accused were charged for committing murder of the son of complainant and also causing injures to the complainant by firing---As per the private complaint, the incident took place on 04.03.2020, whereas such fact had not been mentioned in "Fard Biyan" and FIR---Injured complainant filed private complaint on 14.09.2021, i.e., after about 01 year and 06 months---Brother-in-law of complainant got recorded his statement through Fard Bayyan at 09:30 p.m. on 04.03.2020 before Investigating Officer, upon which Investigating Officer endorsed police proceedings and sent the same to police station through Police Constable and Moharrar formally chalked the FIR at 10:10 p.m. on 04.03.2020---Admitted fact that complainant of FIR reported the incident through "Fard Biyan" recorded by the Investigating Officer--- Admittedly on the statement of said complainant, FIR was registered and it did not support the case of the complainant (complainant of private complaint)---Statement under S.161, Cr.P.C., of the said complainant was recorded by the Investigating Officer after 05-days of the occurrence at the hospital---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed accordingly. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Contradictions in the statements of witnesses---Accused were charged for committing murder of the son of complainant and also causing injures to the complainant by firing---Moharrar deposed that he received the complaint at 10.10 pm on 04.03.2020---Investigating Officer stated during cross-examination that he received the information of the occurrence at 08.15 pm on 04.03.2020 when he was present at police station, through Moharrar--- Investigating Officer further deposed that they reached the place of occurrence at 08:30 p.m., and the dead body of the deceased was lying on the ground at the place of occurrence at the time of his arrival---Complainant mentioned the date of occurrence in the private complaint as 04.03.2020 at 08.00 pm, however said fact was not mentioned in his statement recorded before the police---Eye-witness had specifically deposed during cross-examination that they reached back at the place of occurrence along with dead body at 09:30 p.m.---Investigating Officer stated that he reached the place of occurrence at 08:30 p.m., and the dead body of the deceased was lying on the ground at the place of occurrence at the time of his arrival---Eye-witness had specifically deposed that they reached back at the place of occurrence along with dead body at 09.30 pm---Complainant deposed during cross-examination that he was not present at the place of occurrence when the site plan was prepared---Contrary to that, the Investigating Officer deposed that when he prepared the site plan the witnesses and injured complainant were present there and they pointed out all the points and places to him---Said depositions of the witnesses created doubt about the prosecution story---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed accordingly. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Night time occurrence---Source of light---Eletric bulb not secured from place of occurrence---Accused were charged for committing murder of the son of complainant and also causing injures to the complainant by firing---As per the case of prosecution, the complainant deposed that three eye-witnesses witnessed the occurrence in the light of an electric bulb---Said witnesses took complainant and his son to the hospital, but son of complainant succumbed to the injuries on the way and complainant was referred from THQ Hospital to DHQ Hospital for treatment---During cross-examination, the complainant deposed that his relative shifted him to THQ Hospital and from there he was referred to DHQ Hospital---Complainant further deposed during cross-examination that he was shifted from the place of occurrence by eye-witnesses after 15/20 minutes of the occurrence on a car---Eye-witness deposed that he along with complainant and two witnesses witnessed the entire occurrence in the light of electric bulb and after the occurrence accused persons fled away by extending threats to kill them by waving their daggers---Said eye-witness stated that they took the complainant and his son to hospital but son of complainant succumbed to the injuries on the way while complainant was referred from THQ Hospital to DHQ Hospital for treatment---Contrary to that, Medical Officer, who conducted the Medico-Legal Examination of the complainant deposed that complainant was brought for treatment by Police Officer---Medico-Legal Certificate of the complainant revealed that Police Officer brought the injured---In addition, through the application, the Investigating Officer requested the issuance of Medico-Legal Certificate, which complainant received---Investigating Officer admitted that no electric bulb was taken into possession from the place of occurrence, nor was its recovery memo. prepared---All the said facts casted a cloud of doubt about the prosecution story---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed accordingly. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Presence of eye-witnesses at the time and place not proved---Accused were charged for committing murder of the son of complainant and also causing injures to the complainant by firing---Complainant deposed that 'HY' came to his house just for visit as he was his relative and then eye-witness "AR" came to his house after 10/15 minutes after the arrival of 'HY'---Whereas "AR" the eye-witness deposed that first of all, he and given up eye-witness reached the house of complainant prior to the occurrence and after 5/7 minutes of their arrival, 'HY' came in the house of complainant/injured, and that said witnesses remained present there for 15/20 minutes---Arrival sequence of witnesses at the place of occurrence created doubt about the presence of the eye-witness and given-up witness---Investigating Officer admitted that the names of the prosecution witnesses were neither mentioned in column No. 4 nor on the last page of the inquest report---Non-mentioning the names of prosecution witnesses in the inquest report created doubt about their presence at the place of occurrence---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed accordingly (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Motive not proved---Accused were charged for committing murder of the son of complainant and also causing injures to the complainant by firing---According to the prosecution version, appellant No. 1 had a suspicion of illicit relations of his daughter with the deceased, and due to said grudge, the accused persons attacked the complainant party by creating the false allegation of theft of wood---Complainant deposed that he did not record all the motive part of the occurrence in his statement and he mentioned the motive of the occurrence for the first time in his private complaint after about six months of the occurrence---Eye-witness deposed that he got recorded in his statement that motive behind the occurrence was that appellant No. 1 was having suspicion of illicit relations of his daughter with the deceased and due to that grudge, the accused persons committed the occurrence---Said facts were not mentioned in his statement before police---Said witness admitted that he correctly recorded the motive of the theft of wood in his statement---Investigating Officer deposed that he did not record statement of complainant and any witnesses throughout their investigation regarding any other motive except the motive of theft of wood which had been mentioned in the FIR---Motive mentioned in the FIR regarding the theft of wood was not proved against the accused persons during their investigation---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed accordingly. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of weapon of offence---Inconsequential---Accused were charged for committing murder of the son of complainant and also causing injures to the complainant by firing---As per record blood stained daggers were recovered on the pointation of accused persons on 20.03.2020 and positive report of Forensic Science Agency was available---As per the prosecution case, on 12.03.2020, the appellants were arrested---Investigating Officer, on 20.03.2020, recovered the weapon of offences, i.e., blood-stained daggers on the pointing of accused persons, which were taken into possession through the sealed parcels and same were deposited with the office of Forensic Science Agency---Per the Forensic Science Agency Report, human blood was identified on daggers recovered from the appellants---Although the evidence relating to the recovery of blood-stained "daggers" was in line, but notably the recovered daggers were analyzed on 16.04.2020, i.e., forty-three days after the occurrence---Human blood was not compared with deceased's blood---It was not possible to determine the origin of the blood on "daggers", as blood disintegrated after one month of the occurrence---Even otherwise, it did not appeal to reason that the accused might have kept blood-stained daggers with them in their house intact to produce them before the Investigating Officer on their arrest---Accused could not be expected to keep the blood-stained daggers in their house for a long period when they could have easily disposed of them---Admittedly, the recoveries were effected from a joint house---In much circumstances, the recoveries and positive report were not of any consequence---Circumstances established that the prosecution had not been able to prove its case against the appellants beyond any shadow of doubt---Appeal against conviction was allowed accordingly. Faisal Mehmood v. The State 2017 Cr.LJ 1 rel. Muhammad Shahbaz Sharif and Malik Haris Aslam for Appellants. Muhammad Akhlaq, Deputy Prosecutor General for the State. Rana Bilal Ghaffar Khan for the Complainant. Date of hearing: 11th February, 2024. Judgment Aalia Neelum, C.J.--- ( 1) Ali Akbar son of Manzoor Ahmed, (2) Hafiz Muhammad Arshad son of Allah Ditta, (3) Amir Ali son of Bashir Ahmed and (4) Allah Ditta son of Malla, all Dhudhi by caste, residents of Chak Hota, Tehsil and District Pakpattan, the appellants, through this appeal have assailed their conviction and sentence recorded by the learned Additional Sessions Judge, Pakpattan vide judgment dated 31.03.2023 in a private complaint filed under sections 302, 324, 337-D, 337-A(iii), 148, 149, P.P.C. P.S. Kalyana, District Pakpattan titled "Muhammad Yousaf v. Ali Akbar, etc." arising out of case FIR No.55/2020 dated 04.03.2020 registered under sections 302, 324, 148, 149 P.P.C. at P.S. Kalyana, District Pakpattan whereby the trial court convicted the appellants as under:- Appellant No.1-Ali Akbar was convicted under section 302(b) P.P.C. for committing 'Qatl-i-Amd' of Muhammad Ali-deceased and sentenced to imprisonment for life as Ta'zir. The appellant was further directed to pay an amount of Rs.4,00,000/- as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. In case of default in payment thereof, to further undergo six months imprisonment. Appellant No.2-Hafiz Muhammad Arshad was convicted under section 324, P.P.C. and sentenced to undergo rigorous imprisonment for 07-years along with a fine of Rs.3,00,000/- and, in case of default in payment thereof, to further undergo five months simple imprisonment. Appellant No.3-Amir Ali was convicted under section 324, P.P.C. and sentenced to rigorous imprisonment for 07 years along with a fine of Rs.3,00,000/ - and, in case of default in payment thereof, to five months imprisonment. Appellant No.4-Allah Ditta was convicted under section 324, P.P.C. and sentenced to rigorous imprisonment for 07 years along with a fine of Rs.3,00,000/ - and, in case of default in payment thereof, five months of imprisonment. The benefit of Section 382-B, Cr.P.C was also extended in favour of the appellants. 2. Feeling aggrieved by the judgment of the trial court, the appellants-Ali Akbar, Hafiz Muhammad Arshad, Amir Ali, and Allah Ditta, have assailed their conviction by filing instant Criminal Appeal No.31052 of 2023, whereas the complainant, being dissatisfied with the impugned judgment dated 31.03.2023, preferred a Criminal Revision No.43674 of 2023 for enhancement of sentence awarded to respondents Nos.1 to 4/appellants. As both matters arise from the same judgment, they are being disposed of through a single judgment. 3. The prosecution story, as narrated by Muhammad Yousaf (PW-1), in the private complaint (Ex. PA), is that the complainant's son, Muhammad Ali ran a shop for the repair of motorcycles; on 04.03.2020, the complainant (PW-1) along with Haji Muhammad Yasin (given up PW), Muhammad Yar (given up PW) and Allah Rakha (PW-2), was gossiping while sitting at the house; at about 08:00 p.m., Hafiz Muhammad Arshad (the appellant No.2), called the complainant's son from the house for repairing the motorcycle, whereupon, Muhammad Ali (the deceased) opened the shop; the complainant along with PWs Haji Muhammad Yasin, Muhammad Yar, and Allah Rakha also came at the shop of Muhammad Ali, where the electric bulb was lightening. Meanwhile, Ali Akbar (appellant No.1) armed with a dagger, Asghar, Muhammad Anwar, Manzoor Ahmad, Amir Ali (appellant No.3), Allah Ditta (appellant No.4), Jahangir alias Jangoo Shah with six unknown persons duly armed with daggers came there. Manzoor Ahmad (co-accused since acquitted) raised lalkara to teach a lesson to Muhammad Ali for steeling wood, whereupon, Ali Akbar (the appellant No.1) inflicted dagger blow on the left side of chest of Muhammad Ali; Asghar Ali inflicted dagger blow on the left side of rib of complainant's son, Muhammad Ali; Anwar inflicted dagger blow on the chest of complainant's son; Hafiz Muhammad Arshad (the appellant No.2) inflicted dagger blow under left armpit of complainant's son; Amir (the appellant No.3) inflicted dagger blow on left rib of complainant's son; Allah Ditta (the appellant No.4) inflicted dagger blow on the left side of belly of complainant's son; Jahangir inflicted dagger blow on the right arm of the complainant's son; Manzoor Ahmad inflicted dagger blow on the left rib of the complainant's son, Muhammad Ali; the complainant (PW-1) stepped forward for separating them, then Jahangir inflicted dagger blow on the right side of belly of the complainant; out of six unknown persons, Abid Hussain (whose name was later on disclosed) also inflicted dagger blow on the left side of nose and left cheeks of the complainant's son, when he was in falling condition; Amir Ali (the appellant No.3) inflicted dagger blow near the left knee of the complainant, whereas Allah Ditta (the appellant No.4) inflicted dagger blow on the right knee of the complainant. After sustaining severe injuries, the complainant and his son fell. Upon rising noise, PWs Allah Rakha (PW-2) and Muhammad Yar (given up PW) came, who saw the occurrence along with the complainant in the light of an electric bulb. The accused persons, after raising lalkara and brandishing weapons, fled away from the spot. The witnesses were shifting the complainant and his son Muhammad Ali for their medical treatment to Arifwala when Muhammad Ali succumbed to the injuries on the way, while the complainant was referred to Sahiwal, where he remained under treatment. The motive behind the occurrence was that Ali Akbar (appellant No.1) and his co-accused had the suspicion that the deceased Muhammad Ali had illicit relations with Mst. Sonia Bibi, daughter of Ali Akbar (appellant No.1). So, the accused, on the pretext of theft of wood, attacked with planning and killed Muhammad Ali and injured the complainant. 4. Upon receiving the information of the occurrence, Faisal Hussain S.I. (CW-6) reached the place of occurrence, where Haji Muhammad Yasin (given up PW), got recorded his statement (Ex.CW-5/A), which was reduced to writing and read over to Muhammad Yasin (given up PW), who put his signatures on the same; after that, on completion of police karwai (proceedings), Faisal Hussain, S.I. (CW-6) sent the same to the Police Station through Muhammad Mansha 323/C (not cited as a witness), after that formal FIR (Exh.CW-5/B) was chalked out by Abdul Ghaffar A.S.I (CW-5). 5. After registration of the case, the investigation of the case was conducted by Faisal Hussain S.I (CW-6)-the investigating officer, and after that, the investigation was entrusted to Muhammad Tufail Ex.S.I (CW-8), who found the accused/appellants guilty, prepared a report under section 173 of Cr.P.C. Being dissatisfied with the result of the investigation, as the Investigating Officer being in league with the accused did not investigate the matter properly, Muhammad Yousaf (PW-1)-the complainant/injured was constrained to file a private complaint (Ex. PA), and after recording the cursory evidence of the complainant and having perused the record, all the accused persons were found connected with the commission of the offence, so they were summoned to face the charge. After that, the trial court formally charge sheeted the appellants on 29.08.2022, to which they pleaded not guilty and claimed trial. In support of his version, the complainant produced as many as two (02) witnesses, whereas the rest were summoned as court witnesses, i.e., C.W-1 to C.W-10. 6. After the closure of prosecution evidence, the appellants were examined under Section 342 of Cr.P.C., wherein they neither opted to appear as their own witnesses in terms of Section 340(2), Cr.P.C. nor produced any evidence in their defence. In response to a particular question that why this case was against them and why the PWs had deposed against them, Ali Akbar-the appellant, made the following deposition: - "I and my co-accused have been falsely implicated by the complainant in this case. We have been falsely implicated in this case due to political friction. The deceased Muhammad Ali was a bad character man and he has illicit relation with the different women of the area so he used to sleep in his shop where his some unknown enemy attacked upon him and caused him injuries. Firstly, Muhammad Yaseen got registered a false case against me and my co-accused in form of FIR who is the maternal uncle of deceased as complainant disclosed before him the false and concocted facts of the occurrence. When the complainant of case/FIR came to know that we were falsely involved in this case he refused to support the version of FIR so complainant Muhammad Yousaf filed this private complaint. Muhammad Yousaf complainant was not present at the spot and he got issued a fake medical from the THQ Hospital Arifwala whereas the alleged occurrence took place in the territorial limits of DHQ Hospital Pakpattan. Muhammad Yousaf complainant has personal relationship with the doctor Saqib and he also put some political pressure upon the doctors in this regard. In fact, there are two political parties in our village Hota. PTI party leads by one Jalal Akbar Hotiana and I along with my co-accused and our families used to support the above said political figure whereas Mr. Naseem Mahmood Hotiyana leads to the parties PDM in our area and complainant party used to support him and is under his influence. I affixed a board of PTI party in my house and agricultural land when the said board was saw by Naseem Hotiyana he show his disliking and anger and abuses were exchanged between me and Naseem Hotiyana. In the meanwhile, the instant occurrence took place and complainant party falsely implicated me and my relative co-accused in this case on the asking of Naseem Mahmood Hotiyana. We have not any ill-will or grudge with the complainant party. Hence, the complainant party introduced a false motive of theft of the wood in the FIR and thereafter they introduced another false motive of illicit relation of deceased with one Sonia Bibi. Both the motives are fake and concocted. My co-accused Hafiz Muhammad Arshad is a paralyzed person and his both legs are paralyzed due to polio and he can move very slowly with the help of his hands and he is unable to stand, so how he could cause injury to deceased who was young, healthy and strong man. The facts of the FIR were found not correct during the investigation so, my co-accused namely Anwar, Asghar and Manzoor were found innocent during the investigation. All the PWs are closely related to the deceased and having political friction with us, hence, they have been falsely deposed against me and my co-accused." Hafiz Muhammad Arshad, Amir Ali, and Allah Ditta (appellants Nos. 2, 3, and 4) opted the detailed answer of their co-accused, Ali Akbar (appellant No.1). 7. After recording evidence and evaluating the evidence available on record in the 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 appellants' 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 private complaint (Ex. PA), the incident took place on 04.03.2020, whereas this fact has not been mentioned in "Fard Biyan" (Ex. CW-5/A) and FIR (Ex. CW-5/B). Muhammad Yousaf (PW-1) is the injured complainant of a private complaint (Ex.PA) filed on 14.09.2021, after about 01 year and 06 months, and mentioned in the private complaint (Ex.PA) that during the investigation, the Investigating Officer declared Asghar, Anwar, and Manzoor innocent. Whereas Muhammad Yaseen (not cited as a witness in the private complaint), brother-in-law of Muhammad Yousaf (PW-1) (wife's brother), got recorded his statement through Fard Bayyan (Ex. CW5/A) at 09:30 p.m. on 04.03.2020 to Faisal Hussain S.I. (CW-6) Investigating Officer, upon which Faisal Hussain S.I. (CW-6) Investigating Officer endorsed police proceedings and sent the same to police station Kalyana through Muhammad Mansha 323/C (not cited PW) and Abdul Ghaffar ASI (Ex. Moharrar) (CW-5) formally chalked the FIR (Ex. CW-5/B) at 10:10 p.m. on 04.03.2020. Abdul Ghaffar ASI (Ex. Moharrar) (CW-5) deposed during cross-examination that: - "I received the complaint Ex.CW-5/A at 10:10 p.m on 04.03.2020." Faisal Hussain S.I. (CW-6)-investigating officer deposed during the cross-examination that: - "I received the information of this occurrence at 08:15 p.m on 04.03.2020 when I was present Police Station Kalyana through Moharrar Abdul Ghaffar PW. The place of occurrence is at a distance of 16-KM from the police station and I reached there within 20-minutes after receiving the information. I don't know who informed the Moharrar about the occurrence. One Haji Muhammad Yasin got recorded his statement Ex.CW-5/A to me as complainant. We reached at the place of occurrence at 08:30 p.m and dead body of deceased was lying on the ground at the place of occurrence at the time of my arrival." Contrary to the above, Abdul Ghaffar ASI (Ex. Moharrar) (CW-5) deposed during cross-examination that: - "I did not receive any information regarding this occurrence prior to receiving the complaint Ex.CW-5/A." During examination-in-chief, Muhammad Yousaf (PW-1)-the complainant deposed as under: - "The FIR about this occurrence was got registered on the report of Haji Muhammad Yaseen PW but police did not carry out the investigation as per law and facts and declared Asghar, Anwar and Manzoor accused as innocent. Hence, I have filed instant private complaint Ex-PA which bears my thumb impression in order to seek justice." Muhammad Yousaf (PW-1)-the complainant mentioned the date of occurrence in the private complaint as 04.03.2020 at 08:00 p.m. However, he (PW-1) admitted during cross-examination that: - "I got recorded in my statement Ex.DA that date of occurrence was 04.03.2020. Confronted with Ex.DA where date is not mentioned in any contents." He (PW-1)-the complainant also admitted that Haji Muhammad Yasin (given up PW) is the brother-in-law (wife's brother). However, he has not cited him as a witness. During cross-examination, he (PW-1)-the complainant, deposed as below: - "Haji Yasin is brother of my wife got registered this case. I did not cite him as witness in my complaint case. It is correct that as he did not want to support our version hence I did not cite him as witness in this case." It is admitted fact that Haji Muhammad Yasin (not cited as a witness) reported the incident through "Fard Biyan" (Ex. CW-5/A), recorded by Faisal Hussain S.I. (CW-6)-the Investigating Officer. It is admitted that on the statement of Haji Muhammad Yasin (not cited as a witness), FIR was registered and was not supporting the case of Muhammad Yousaf (PW-1)-the complainant (complainant of private complaint). The statement under section 161, Cr.P.C. of Muhammad Yousaf (PW-1)-the complainant, was recorded by Faisal Hussain S.I. (CW-6)-the Investigating Officer, after 05-days of the occurrence at the hospital. In this regard, Muhammad Yousaf (PW-1)-the complainant, deposed during cross-examination as under: - "I admitted in the hospital at 09:00 p.m. I don't know when police visited the place of occurrence and what police proceeded at the place of occurrence. I did not see the police on the day when I was shifted to hospital. I first time got recorded my statement after five days of the occurrence at Sahiwal hospital." Contrary to the deposition of Muhammad Yousaf (PW-1)-the complainant, Faisal Hussain S.I. (CW-6)-the Investigating Officer deposed during cross-examination that: - "I received the information of this occurrence at 08:15 p.m. on 04.03.2020 when I was present Police Station Kalyana through Moharrar Abdul Ghaffar PW. The place of occurrence is at a distance of 16-KM from the police station and I reached there within 20-minutes after receiving the information. --------------One Haji Muhammad Yasin got recorded his statement Ex.CW-5/A to me as complainant. We reached at the place of occurrence at 08:30 p.m. and dead body of deceased was lying on the ground at the place of occurrence at the time of my arrival. Yousaf injured PW was also present at the place of occurrence at the time of my arrival. I did not record statement of Muhammad Yousaf, the alleged injured PW. Volunteered that he was in precarious condition, hence his statement was not recorded." Faisal Hussain S.I. (CW-6)-the Investigating Officer stated during cross-examination that he reached the place of occurrence at 08:30 p.m., and the dead body of the deceased was lying on the ground at the place of occurrence at the time of his arrival. While Allah Rakha (PW-2)-the eye-witness deposed during cross-examination that: - "As soon as we reached at THQ Hospital Arifwala we got issued the Medical examination of Muhammad Yousaf deceased. We also shifted the dead body of Muhammad Ali deceased at THQ hospital Arifwala along with Muhammad Yousaf injured. We shifted both Muhammad Ali deceased and Muhammad Yousaf on the car of one Muhammad Yasin Joiya. We all the four PWs, deceased Muhammad Ali and Muhammad Yasin Joiya reached at THQ Arifwala in one car. I along with Yasin and Muhammad Yar took back the dead body of Muhammad Ali deceased at the place of occurrence from THQ Hospital Arifwala on the same car. The hands and clothes of myself, Yasin and Muhammad Yar PWs were smeared with blood of deceased and injured while we took care of them while we taking to the hospital. We handed over our blood stained clothes to police. We reached back at the place of occurrence along with dead body at 09:30 p.m." Allah Rakha (PW-2)-the eye-witness has specifically deposed during cross-examination that they reached back at the place of occurrence along with dead body at 09:30 p.m. The above-said depositions of the PWs create doubt about the prosecution story. 10. As per the case of the prosecution, Muhammad Yousaf (PW-1)-the complainant deposed during examination-in-chief, that Haji Yasin (given up PW), Allah Rakha (PW-2), and Muhammad Yar witnessed the occurrence in the light of an electric bulb. These PWs took him and his son to the hospital, but his son Muhammad Ali succumbed to the injuries on the way, and he (PW-1) was referred from Arifwala Hospital to Sahiwal Hospital for treatment. Whereas, during cross-examination, Muhammad Yousaf (PW-1)-the complainant, deposed as below: - "My relative Nadeem shifted me to THQ Hospital Arifwala and from where I was referred to DHQ Sahiwal." While taking somersault, Muhammad Yousaf (PW-1)-the complainant, further deposed during cross-examination that: - "I was shifted from the place of occurrence by Allah Rakha and Yasin complainant after 15/20 minutes of the occurrence on a car owned by one Yasin Joiya. Yasin was driving the car. We reached at THQ hospital Arifwala within 15/20 minutes. Within 15/20 minutes as I reached at THQ Arifwala my medical examination was conducted. My medical examination was conducted in the absence of police. I don't know when police visited the THQ Hospital Arifwala. I remained admitted at THQ Hospital Arifwala for 15/20 minutes. Thereafter, one relative Nadeem shifted me to DHQ hospital Sahiwal on ambulance." Allah Rakha (PW-2)-the eye-witness deposed during examination-in-chief that: - "I along with complainant Muhammad Yousaf, PWs Haji Yaseen and Muhammad Yar witnessed the entire occurrence in the light of electric bulb and after the occurrence accused persons fled away by extending threats to kill us and PWs by waving their daggers. We took the complainant and his son to hospital but Muhammad Ali succumbed to the injuries in the way while complainant was referred from Arifwala hospital to Sahiwal hospital for treatment." Contrary to the above, Dr. Saqib Ishaq M.O (CW-7), who conducted the medico-legal examination of Muhammad Yousaf (PW-1)-the complainant deposed during examination-in-chief that: - "It is stated that on 04.03.2020, I was posted as M.O at THQ Hospital Arifwala. On the same day, at about 09:15 P.M, I conducted medico legal examination of Muhammad Yousaf son of Muhammad Sharif, caste Rehmani, aged 56-years, resident of Chak Hota, Pakpattan which was brought by Muhammad Tufail S.I." In the column of brief history, it was mentioned that the examinee gave a history of assault at about 07:30 p.m. on 04.03.2020, beaten with Khanjar. Cross-examination of Dr. Saqib Ishaq M.O (CW-7) was conducted by the learned counsel for the complainant, and the question put to the witness reveals that the prosecution admitted that Muhammad Yousaf (PW-1)-the complainant, was medically examined at the request of police. He (CW-7) deposed during cross-examination that: - "It is correct that medical examination of Muhammad Yousaf injured PW was conducted on the request of police while in the relevant column name of Muhammad Tufail SI is mentioned." During the cross-examination conducted by the defence, Dr. Saqib Ishaq M.O (CW-7) deposed as under: - "I conducted medical examination of Muhammad Yousaf injured on docket of police but same is not available on the record. It is correct that said docket is not available on record/file nor my any endorsement is available as per record. N

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Ocular account proved---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Complainant in his FIR stated that on 28.04.2015 his two sons and his nephews were having scuffle with each other, he intervened to separate them; in the meanwhile appellant and co-accused took out their pistols; appellant fired at son of complainant which hit him on his right thigh while co-accused fired at other son of complainant which hit him on first finger of his right hand; then the brother of appellant arrived, who caused danda blow to him on his head; and finally the complainant and his sons were taken to hospital---Complainant and his sons were discharged after treatment while other injured was shifted to another hospital who died on 01.05.2014---Evidence of the complainant was silent with regard to causing him danda blow by co-accused---Except such omission, complainant had supported the narration made by him in his FIR to a large extent---Whatever was stated by injured got support from evidence of witness---Complainant and both of his witnesses had stood by their version on all material points and they could not be disbelieved only for the reason that they were related inter-se and/or there was no independent witness to the incident---Complainant and his witnesses indeed had no reason to involve the appellant in the case falsely who too was their close relative---Appeal against conviction was dismissed, in circumstances. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Prosecution not examining material witness---Inconsequential---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Of course, during course of their examination, witnesses had admitted that one "SG" had also sustained fire shot injury---Said injured had not been examined by the prosecution---Non-examination of said injured was not enough to disbelieve the complainant and his witnesses---If said injured was not going to support the case of prosecution then it was for the appellant to have called him in his defence to take advantage of his evidence, if any, which he had failed to do---Appeal against conviction was dismissed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Delay of three days in lodging the FIR---Not fatal to prosecution case---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Delay in lodgment of the FIR was well explained by the complainant by stating that the elders of the community prevented him from lodging the same to have a private faisla (arbitration) which they failed to have on account of death of the deceased, therefore, such delay in lodgment of the FIR could hardly be treated to be fatal to the case of prosecution---Appeal against conviction was dismissed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Recovery of one empty and one live bullet from place of occurrence---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Record showed that the recovery of one empty and one live bullet from the place of incident was not enough to conclude that it was a sole fire which was made by the accused at the complainant party---Second empty might have gone missing from the place of incident, which was a mohalla---Appellant was taken into custody on account of refusal of pre-arrest bail to him, and by such act the recovery of crime weapon from him was defeated---No benefit of such non-recovery of crime weapon could be extended to the appellant in the circumstances---Appeal against conviction was dismissed, in circumstances. Bashir Ahmed Leghari v. The State 2020 SCMR 595 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Acquittal of co-accused on same set of evidence---Inconsequential---Accused was charged that he with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to the sons of complainant but also caused danda blow to complainant with intention to commit their murder; and one son of the complainant died because of his injuries---Record showed that acquittal of co-accused was not enough to earn acquittal for the appellant for the reason that he was having a different role in commission of incident---Evidence brought on record by the prosecution was inspired confidence, thus it could not be disbelieved in favour of the appellant on the basis of its quantity---Appeal against conviction was dismissed, in circumstances. Muhammad Raheel alias Shafique v. The State PLD 2015 SC 145 rel. (f) Criminal trial--- ----Testimony of witnesses---Scope---Quality of the evidence prevails and not its quantity. Asfandiyar v. The State and others 2021 SCMR 2009 rel. Muhammad Farooq for Appellant. Muhammad Anwar Mahar, DDPP for the State. Syed Lal Hussain Shah for the Complainant. Date of hearing: 12th September, 2023. Judgment IRSHAD ALI SHAH, J.--- It is the case of prosecution that the appellant with rest of the culprits, in furtherance of their common intention, not only caused fire shot injuries to Muhammad Ali and Waseem Gul but caused danda blow to complainant Gulawat Shah with intention to commit their murder; Muhammad Ali eventually died of such injuries, for that the present case was registered. The appellant and co-accused Rustam Ali denied the charge and prosecution to prove the same, examined in all 06 witnesses and then closed its side. The appellant and co-accused Rustam Ali in their statements recorded under Section 342 Cr.P.C denied the prosecution's allegation by pleading innocence by stating that they have been involved in this case falsely by the complainant party on account of old family dispute. They did not examine themselves on oath or anyone in their defence to prove their innocence. On conclusion of trial, co-accused Rustam Ali was acquitted while the appellant was convicted under section 302(b) P.P.C. and sentenced to undergo life imprisonment with benefit of section 382(b) Cr.P.C by learned IInd -Additional Sessions Judge, Karachi, Central vide judgment dated 05.04.2018, which he has impugned before this Court by preferring the instant Criminal Appeal. 2. It is contended by learned counsel for the appellant that the appellant being innocent has been involved in this case falsely by the complainant party in order to satisfy with him its dispute over property; the FIR has been lodged with delay of about 03 days; there is no recovery of any sort from the appellant; there is no independent witness to the incident; there is conflict between medical and ocular account of evidence with regard to age of the deceased and injury sustained by him; 342 Cr.P.C statement of the appellant has been recorded improperly and on the basis of same evidence co-accused Rustam Ali has been acquitted even by learned trial Court. By contending so, he sought for acquittal of the appellant of the charge by extending him benefit of doubt. In support of his contention, he relied upon cases of Sardar Bibi and another v. Munir Ahmed and others (2017 SCMR 344) and Mst. Asia Bibi v. the State and others (PLD 2019 SC 64). 3. It is contended by learned DDPP for the State and learned counsel for the complainant that the appellant is neither innocent nor has been involved in this case falsely by the complainant party; his case is distinguishable to that of acquitted accused Rustam Ali; he has defeated recovery of crime weapon by going in absconsion and was taken into custody after refusal of pre arrest bail and there is no material conflict between medical and ocular account of evidence. By contending so, they sought for dismissal of the instant Criminal Appeal. In support of their contention, they relied upon cases of Amanullah and another v. the State and others (2023 SCMR 723) and Ellahi Bakhsh v. Rab Nawaz and another (2002 SCMR 1842). 4. Heard arguments and perused the record. 5. It is inter alia stated by the complainant in his FIR that on 28.04.2015 his sons Muhammad Ali and Waseem Gul and his nephews Abdul Hameed and Abid were having scuffle with each other, he intervened to separate them; in the meanwhile Abdul Hameed and Abid took out their pistols; Abdul Hameed fired at Muhammad Ali which hit him on his right thigh while Abid fired at Waseem Gul which hit him on first finger of his right hand; there came Rustam Ali his brother, who caused danda blow to him on his head; he and his sons were taken to Abbasi Shaheed Hospital; he and PW Waseem Gul were discharged after treatment while Muhammad Ali was shifted to Ziauddin Hospital Nazimabad who died on 01.05.2014. The evidence of the complainant is silent with regard to causing him danda blow by co-accused Rustam Ali. Excepting such omission, he has supported the narration made by him in his FIR to large extent. It was stated by PW Waseem Gul that on the date of incident he and Muhammad Ali had scuffle with the appellant and co-accused Abid on account of selling of narcotics in Mohalla on which they took out pistols, the appellant fired at Muhammad Ali which hit him on his right thigh while Abid fired at him which hit him on his first finger of right hand; there came Rustam Ali and he caused danda, blow to his father the complainant on his head and then all the accused fled away. They all were referred to Abbasi Shaheed Hospital, he and his father the complainant were discharged while Muhammad Ali was shifted to Ziauddin Hospital he died there on 01.05.2014. Whatever is stated by PW Waseem Gul takes support from evidence of PW Naseeb Gul. The complainant and both of his above named witnesses have stood by their version on all material points. They could not be disbelieved only for the reason that they are related inter-se and/or there is no independent witness to the incident. The independent persons are oftenly found reluctant to involve themselves in dispute of others in Court proceedings. The complainant and his witnesses indeed were having no reason to have involved the appellant in this case falsely who too was their close relative. Of course, during course of their examination they have admitted that one Sana Gul has also sustained fire shot injury. He has not been examined by the prosecution. His non-examination is not enough to disbelieve the complainant and his witnesses. If he was not going to support the case of prosecution then it was for the appellant to have called him in his defence to take advantage of his evidence, if any, which he has failed to do. As per Medical Officer, Dr. Muhammad Naeemuddin, deceased Muhammad Ali was found sustaining injury on his left knee joint, his age and parentage according to supplementary medico legal report was different. Such omission is not enough to make a conclusion that the death of the deceased was not unnatural, which otherwise is proved beyond doubt by the complainant and his witnesses to be unnatural and at the hands of the appellant. The delay in lodgment of the FIR is well explained by the complainant by stating that the elders of the community prevented him from lodging the same to have a private faisla which they failed to have on account of death of the deceased, therefore, such delay in lodgment of the FIR could hardly be treated to be fatal to the case of prosecution. The recovery of one empty and one live bullet from the place of incident is not enough to conclude that it was a sole fire which was made by the accused at the complainant party. The second empty might have gone missing from the place of incident which was mohalla. The appellant was taken into custody on account of refusal of pre-arrest bail to him, by such act the recovery of crime weapon from him was defeated. No benefit of such non-recovery of crime weapon could be extended to the appellant in the circumstances. Acquittal of co-accused Rustam Ali is not enough to earn acquittal for the appellant for the reason that he was having a different role in commission of incident. Evidence brought on record by the prosecution is transpiring confidence. It could not be disbelieved in favour of the appellant on the basis of its quantity. It is settled by now that it is the quality of the evidence prevails and not its quantity. The appellant in his statement recorded under Section 342 Cr.P.C has pleaded innocence but has not been able to examine himself on oath or anyone in his defence to prove such innocence, therefore, plea of innocence on his part deserved to be ignored as an afterthought. No prejudice has been caused to the appellant while recording his statement under Section 342 Cr.P.C which contains material circumstances. In these circumstances, it would be safe to conclude that no illegality or irregularity has been committed by learned trial Court by convicting the appellant for the offence with which he was charged. 6. In case of Muhammad Raheel alias Shafique v. State (PLD 2015 SC 145), it has been held by Apex Court that: "5. Thus, their acquittal may not by itself be sufficient to cast a cloud of doubt upon the veracity of the prosecution's case against the appellant who was attributed the fatal injuries to both the deceased. Apart from that the principle of falsus in unofalsus in omnibus is not applicable in this country on account of various judgments rendered by this Court in the past and for this reason too acquittal of the five co-accused of the appellant has not been found by us to be having any bearing upon the case against the appellant." 7. In case of Asfandiyar v. The State and others (2021 SCMR 2009), Apex Court has held that:" Law does not require a particular number of witnesses to prove a criminal charge and statement of a solitary witness with a ring of truth is more than sufficient to drive home the charge; corroboration is a rule of prudence and not law and cannot be invariably insisted in every case. Belatedly taken plea of substitution by the petitioner that the deceased was done to death by one Ashfaq is nothing but a far cry; it is inconceivable that a father would substitute the assassin of his son with an innocent without rhyme or reason. Longstanding absconsion with arrest as late as on 2.5.2012 is yet another predicament bracing the petitioner. On an overall analysis of the evidence, we have not been able to find space to admit any hypothesis other than petitioner's guilt; view concurrently taken by the Courts below, being unexceptionable, calls for no interference. Petition fails. Leave declined." 8. In case of Bashir Ahmed Leghari v. The State (2020 SCMR 595), Apex Court has held that: "In this backdrop, prosecution's failure to recover the weapon, statedly used in the occurrence, fades into insignificance; he is certainly not expected to keep the gun for such a long period of time with him as a souvenir of his crime." 9. The case law which is relied upon by the learned counsel for the appellant is on distinguishable facts and circumstances. In case of Sardar Bibi and another (supra) the accused who were acquitted were having similar role with the accused who were convicted. In the instant case, the appellant is having a different to that of acquitted accused. In case of Asia Bibi (supra) the delay in lodgment of FIR was not explained plausibly. In the instant case, it is explained plausibly. 10. In view of the facts and reasons discussed above, it is concluded that the conviction and sentence awarded to the appellant by way of impugned judgment is not calling for any interference by this Court by way of instant Criminal Appeal. It is dismissed accordingly. JK/A-95/Sindh Appeal dismissed.

Summary: Civil Procedure Code (V of 1908)--- ----S. 12(2) & O.1, R. 10(2)---Rent matter---Eviction of tenant---Ex-parte ejectment order---Respondent No. 1 filed ejectment application against respondent No. 2---Rent controller allowed the eviction application by way of an ex-parte order---Petitioner filed an application under S.12(2) read with O.1, R. 10(2), C.P.C., seeking recalling of the ex-parte ejectment order on the ground that the same was obtained by way of fraud, misrepresentation and concealment of true facts, but same was dismissed---Appeal was filed, which was also dismissed---Validity---Respondent No. 1 filed ejectment application against respondent No. 2, who was real brother of the petitioner, however, the petitioner did not bother to bring on record true facts as to tenancy between respondents Nos. 1 and 2---Petitioner used to deposit the rent in bank on behalf of his brother through cheques as admitted by him in cross-examination---Case of the petitioner hinged merely on a sale agreement said to have been executed in his favour by the respondent No. 1 for which he availed civil remedy by filing a suit for specific performance and permanent injunction, but failed to succeed either before the Trial Court or before the Appellate Court, whereby the claim of the petitioner as to purchase of the demised premises from the respondent No. 1 was declined---Findings of fact given by Rent Controller were concurred by the Appellate Court---Under constitutional jurisdiction, the Court avoids to give contrary findings until and unless the same are proved to be perverse, based on misreading or non-reading of evidence---Even otherwise, the powers in rent matters under constitutional jurisdiction of the Court are limited and confined only to ascertain whether the Courts below have flouted the statute or failed to follow the law relating thereto---Constitutional petition was dismissed, in circumstances. Mst. Mahmooda Begum and another v. Taj Din 1992 SCMR 809 and Muhammad Iqbal v. Mst. Zahidan and 2 others 2013 CLC 1780 rel. Sardar Sher Afzal Khan for Petitioner. Murtaza Hussain for Respondent No. 1. Respondent No. 2 through his legal heris Date of hearing: 19th September, 2024. Order Shamsuddin Abbasi, J .--- The Petitioner has invoked the jurisdiction of this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1979, impugning the order dated 31.01.2022, penned down by the learned Additional District Judge-XII (Model Civil Appellate Court), Karachi (South) dismissing First Rent Appeal No.208 of 2021, filed by the petitioner against the order passed by the learned Senior Civil Judge /Rent Controller-II, Karachi (South) on 14.10.2021 dismissing his application under Section 12(2) read with Order I, Rule 10(2), C.P.C. filed in Rent Case No.1031 of 2016. 2. Respondent No.1 Syeda Tatheer Fatima filed ejectment application vide Rent Case No.1031 of 2016 against Respondent No.2 Mazhar Ali seeking his eviction from demised premises viz Flat No.A-23, 6th floor, Super Place, Civil Lines Quarters, Dr. Ziauddin Ahmed Road, Karachi, on the ground of personal bona fide need. The learned Rent Controller allowed the eviction application by way an ex parte order dated 19.04.2017. The petitioner filed an application under Section 12(2) read with Order I, Rule 10(2), C.P.C., seeking recall of the ex parte ejectment order dated 19.04.2017 on the ground that the same was obtained by way of fraud, misrepresentation and concealment of true facts. The learned Rent Controller by an order dated 14.10.2021 dismissed the application. Impugning the order of the learned Rent Controller, the petitioner filed First Rent Appeal No.208 of 2024, which was dismissed vide order dated 31.01.2022, passed by the learned Additional District Judge-XII (MCAC), Karachi (South) and feeling aggrieved by the orders of the two Courts below, the petitioner has filed this petition. 3. It is contended on behalf of the petitioner that the respondent No.1 has obtained ex parte ejectment order dated 19.04.2017 by way of fraud, misrepresentation and concealment of true facts; that the petitioner filed Suit No.30 of 2014 for specific performance and permanent injunction, which was dismissed by learned Senior Civil Judge-II, Karachi (South) and appeal preferred against the order of the learned trial Court was also dismissed by learned Appellate Court and against the orders of the two Courts below the petitioner has filed Civil Revision, which is pending adjudication before this Court; that it is a clear cut case of fraud but the two Courts below dismissed the application under Section 12(2) read with Order I, Rule 10(2), C.P.C. without appreciating the material placed on record and application of judicial mind; that the respondent No.1 has admitted that respondent No.2 is her tenant since 2008 when she was neither attorney nor holder of title documents of the demised premises; that possession of the demised premises was handed over to the petitioner at the time of signing of sale agreement and payment of Rs.3 million in cash and Rs.1 million through cheque to the respondent No.1; that the respondent No.1 became attorney in the year 2014 and rent proceedings against respondent No.2 as her tenant are not maintainable; that the respondent No.1 has managed forged documents just to deprive the petitioner from his legal right. The learned counsel for the petitioner has lastly submitted that impugned orders passed by the two Courts below are without appreciating the facts and circumstances of the case and application of judicial mind, hence the same are liable to be reversed and prayed that the petition may be allowed as prayed. 4. The learned counsel appearing on behalf of the respondent No.1 has submitted that the petitioner and respondent No.2 are real brothers and they have managed a false and fabricated sale agreement just to usurp the property of the respondent No.1; that respondent No.1 is owner of the property in question and her eviction application was allowed by the learned Rent Controller and such an order has been maintained by the learned Appellate Court; that the suit filed by the petitioner for specific performance and permanent injunction was dismissed by the learned trial Court and Appellate Court has maintained the order of the learned trial Court in appeal; that the petitioner and respondent No.2 have managed a false and fabricated sale agreement and based on such agreement the petitioner filed application under Section 12(2) read with Order I, Rule 10, C.P.C., which were rightly dismissed by the learned Courts below. The learned counsel lastly submitted that scope of writ jurisdiction in rent matters is limited and the petitioner has failed to make out a case for interference, hence prayed for dismissal of appeal. 5. The respondent No.2, Aga Muhammad Khan, who is also a practicing advocate, present in person has supported the case of the petitioner and adopted the same arguments as advance by the learned counsel for the petitioner. 6. Heard learned counsel for the petitioner, learned counsel for the respondent No.1 and respondent No.2 in person as well as perused the entire material available before me with their able assistance. 7. Record demonstrates that suit filed by the respondent No.1 seeking specific performance and permanent injunction was dismissed by the learned Senior Civil Judge-II, Karachi (South) vide order dated 18.03.2017 and Civil Appeal No.59 of 2017 preferred against the order of the learned trial Court was also dismissed by the learned Appellate Court. The record is suggestive of the fact that the petitioner filed suit for specific performance and permanent injunction in the year 2015 whereas the respondent No.1 filed ejectment application against respondent No.2, who is real brother of the petitioner in 2016, however, the petitioner did not bother to bring on record true facts as to tenancy between respondents 1 and 2 and he (petitioner) used to deposit the rent in bank on behalf of his brother (respondent No.2) through cheques as admitted by him in cross-examination. The case of the petitioner hinges merely on a sale agreement said to have been executed in his favour by the respondent No.1 for which he availed civil remedy by filing a suit for specific performance and permanent injunction, but failed to succeed either before the learned trial Court or before the learned Appellate Court, whereby the claim of the petitioner as to purchase of the demised premises from the respondent No.1 was declined. The record is suggestive of the fact that the learned Rent Controller has dismissed the application under Section 12(2) read with Order 1 Rule 10(2), C.P.C. after recording evidence and hearing the parties' respective counsel observing that the petitioner has failed to prove that ex parte ejectment order was obtained by the respondent No.1 by way of fraud, misrepresentation and concealment of true facts. The order of the learned Rent Controller has been maintained by the learned Appellate Court observing that the petitioner has already availed civil remedy as to his claim with regard to purchase of the demised premises and allowing the fate of the application under Section 12(2) read with Order I, Rule 10(2), C.P.C. and recording any finding as to the title /ownership of the demised premises is beyond the domain of the learned Rent Controller. 8. Findings of fact given by the learned Rent Controller are concurred by the learned Appellate Court. On query posed as to what perversity or illegality afflicted the orders of the two Courts below, the learned counsel for the petitioner failed to advance any cogent argument in that regard, therefore, at this juncture, under the Constitutional Jurisdiction, this Court avoid to give contrary findings until and unless the same are prove to be perverse, based on misreading or non-reading of evidence. Even otherwise, the powers in rent matters under Constitutional Jurisdiction of this Court are limited and confined only to ascertain whether the learned Courts below have flouted the statute or failed to follow the law relating thereto. Reliance in this behalf may well be made to the case of Mst. Mahmooda Begum and another v. Taj Din reported (1992 SCMR 809), wherein the Hon'ble Apex Court held as under:- "In normal circumstances, the High Court is not supposed to interfere with a finding of fact recorded by a tribunal of special Jurisdiction in respect of matters exclusively within its competence, unless there has been a serious misreading or misappreciation of the evidence on the part of the said tribunal, or there has been failure on its part to take into consideration material facts or to apply the statutory law or any principle or rule of law as laid down by the superior Courts". In another case, similar view was followed by this Court in the case of Muhammad Iqbal v Mst. Zahidan and 2 others (2013 CLC 1780) observing as follows:- "It is settled proposition of law that Courts below, in its original and appellate jurisdiction are competent to draw inference, while delivering the judgment and it is not open to interference in Constitutional jurisdiction, unless and until miscarriage of justice is established by the party in the Constitutional petition, thus, High Court would not normally interfere in judgment and decree passed by court of competent jurisdiction for the reason that it was within their exclusive jurisdiction, to believe and disbelieve the evidence, it is worth to add that no Constitutional petition lies when evidence in the case has been properly appreciated and analyzed." 9. In view of the analysis and combined study of the entire material available before me by way of reappraisal, with such care and caution, I find no infirmity or illegality in the impugned orders (concurrent findings of the two Courts below). This Constitutional Petition is, therefore, bereft of merit stands dismissed along with all pending application(s) with no order as to costs. JK/I-4/Sindh Petition dismissed.

Summary: Criminal Procedure Code (V of 1898)--- ----S.498---Penal Code (XLV of 1860), S.489-F---Constitution of Pakistan, Art.4---Dishonouring of cheque---Ad-interim pre-arrest bail, confirmation of---Offence not falling in prohibitory clause of S.497, Cr.P.C.---Bail---Purpose---Bail is not meant to be punitive or preventive but to ensure the accused's presence during the trial---Every person is presumed innocent until proven guilty and pre-conviction detention should be used only to secure attendance---Right to life and liberty is guaranteed under Art.4 of the Constitution---Offence under S.489-F is punishable up to 3 years, which does not warrant pre-trial detention under S.497, Cr.P.C.---Applicant had been regularly appearing before the Trial Court and had not frustrated the proceedings---Complainant's failure to attend court proceedings suggested a lack of interest in pursuing the case, thus, refusal of bail would not serve any useful purpose, rather there was serious apprehension of humiliation and harassment of the applicant at the hands of police---Disputed amount as per alleged cheque was a meager one---It was yet to be determined by the Trial Court whether an offence under S.489-F, P.P.C., was constituted or otherwise---Ad-interim pre-arrest bail already granted to the accused was confirmed, in circumstances. Muhammad Ismail v. Muhammad Rafique and another PLD 1989 SC 585 rel. Applicant present in person in court on bail. Nemo for the Complainant. Siraj Ali Khan Chandio, Additional Prosecutor General, Sindh for the State. Date of hearing: 21st August, 2024. Order Muhammad Saleem Jessar, J .--- Through instant bail application, applicant Muhammad Shahid son of Muhammad Ramzan seeks his admission on pre- arrest bail in Crime No. 153/2021 registered with Police Station KIA Karachi under section 489-F P.P.C.. The applicant has approached court of Sessions for anticipatory bail vide Crl. Bail Application No. 2729 of 2023 however, it was assigned to learned 1st Additional Sessions Judge/MCTC Karachi-Central, who after hearing the parties has declined the request vide order dated 30.10.2023. Hence this application. 2. Record shows that vide order dated 07.11.2023 applicant was admitted to ad-interim pre-arrest bail and today the same is fixed for confirmation of said order or otherwise. 3. At the very outset, applicant submits that the complainant is not appearing before the trial court, hence case is no proceeding there. He further submits that the conduct of complainant before this court is also similar as before trial court hence prayed that by considering above facts, this application may be allowed and interim pre arrest bail granted earlier to him may be confirmed. 4. Learned Additional Prosecutor General, Sindh could not controvert the above submission of applicant. Learned Addl. P.G after going through the FIR as well as record submits that alleged cheque issued by the accused was for Rs.128,000/- which is meager one. 5. Heard arguments and perused the record. Record reveals that vide order dated 06.08.2024 progress report was called from the trial court ie. VIth Civil Judge and Judicial Magistrate Karachi-Central, which has been submitted vide report No. CJ /J.M.VI-No.98 of 2024 dated 12.08.2024 which reflects that complainant is not appearing before the trial court. Such report regarding conduct of complainant confirms the submission of applicant. It may not be out of place to mention here that the object of bail is neither punitive nor preventive and therefore, deprivation of liberty must be considered a punishment, unless it may be required to ensure the presence of accused during trial. The punishment begins after conviction and not before it, as in criminal justice system every man is deemed to be innocent until duly found guilty. It needs not to re-emphasize that the purpose of putting the un-convicted persons in custody is nothing but to secure their attendance at the trial. Even otherwise, life and liberty of a citizen is very precious and guaranteed by Article 4 of the Constitution of Islamic Republic of Pakistan, 1973, as has been observed by the Hon'able Supreme Court of Pakistan in the case of Muhammad Ismail v. Muhammad Rafique and another (PLD 1989 SC 585). It appears that the disputed amount as per alleged cheque between the parties is Rs.128,000/- which is meager one. Hence, it is yet to be determined by the trial court whether an offence under section 489-F, P.P.C. is constituted or otherwise. Indeed, the alleged offense is punishable by up to 03 years which does not fall within the ambit of restraining clause of Section 497, Cr.P.C. Moreover, per report submitted by the trial court, after completion of the investigation, a challan has been submitted, and learned trial Court is seized of the matter and it is informed that the applicant is regularly appearing before the learned trial Court and facing their trial. Neither applicant has misused the concession of bail nor frustrated the trial on any pretext rather complainant is not appearing before the trial court, hence refusal of bail at this stage would not serve any useful purpose, but there is serious apprehension of humiliation and harassment of the applicant at the hands of police. The conduct of complainant in attending this court as well as trial court shows that he is only interested to linger on the proceedings to drag the applicant in these proceedings. 6. Keeping in view the above facts and circumstances of the case, instant application is allowed. Consequently, interim pre-arrest bail granted earlier to the applicant vide order dated 07.11.2023 is hereby confirmed on same terms and conditions. 7. The applicant shall continue his appearance before the trial court till final decision of the main case. The trial court is directed to expedite the trial and conclude it within shortest possible time under intimation to this court through MIT-II. Let copy of this order be facsimiled to learned Session Judge Karachi-South for compliance. Learned MIT-II to ensure compliance. SA/M-80/Sindh Bail confirmed.

Summary: Criminal Procedure Code (V of 1898)--- ----S. 497---Penal Code (XLV of 1860), Ss. 324, 337-A(i), 337-F(i), 337-F(iv), 504, 147, 148 & 149---Attempt to commit qatl-i-amd, shajjah-i-khafifah, ghayr-jaifah-damiyah, ghayr-jaifah-mudihah, intentional insult with intent to provoke breach of peace rioting, rioting armed with deadly weapons, unlawful assembly---Bail, refusal of---Accusation against the applicants were that they caused severe injuries to three persons on their vital and non-vital parts---Accused were named in the FIR with specific roles---Complainant alleged that the accused committed acts of violence, including assault with deadly weapons, resulting in injuries to multiple individuals---First Information Report detailed the accused's actions, including the use of a gun, hatchet and sticks---Witnesses corroborated the complainant's account, and medical evidence supported the claims of injuries---Motive for the attack was also outlined in the FIR, stemming from a dispute over payment---Injuries sustained by the victims were classified under various Sections of P.P.C including Ss. 337-D & 324---Such offences were non-bailable and carried potential penalties including imprisonment and fines---Based on the evidence presented, including the FIR, the witnesses' statements, the medical reports and recovered weapons, there was a prima facie case against the accused---Accused had not demonstrated any grounds for further inquiry---Bail petition was dismissed, in circumstances. Mir Muhammad v. The State 2024 SCMR 805; Muhammad Ijaz v. The State 2022 SCMR 1271; Muhammad Faisal v. The State and another 2020 SCMR 971 and Abd-ur-Razak alias Karo v. The State 2012 MLD 1656 ref. Zafar Hayat for Applicant. Mian Taaj Muhammad Keerio for the Complainant along with Complainant and two injured. Dhani Bux Mari, Assistant P.G Sindh. order Adnan-ul-Karim Memon, J .--- The applicants Gul Bahar and Ghulam Murtaza are seeking post-arrest bail in FIR No.31 of 2024 for the offenses under sections 324, 337-F(iv), A(i), F(i), 147, 148, 149, 504 P.P.C at Police Station Chotiyaroon. 2. The trial Court declined their earlier bail plea vide order dated 24.07.2024 on the premise that the applicants are nominated in FIR with specific roles for causing severe injuries to the victims on vital and non-vital parts, with intent to commit their qatl-i-amd; that delay in registration of FIR is properly explained; that accusations are supported by statements of witnesses under section 161 Cr.P.C., coupled with medicolegal certificate; that the alleged offense carries prohibition contained in Section 497 Cr.P.C. 3. The accusation against the applicants are that on 07-07.2024, they caused severe injuries to injured Asim Mansoor, Sher Usama, and Ghulam Mustafa on their vital and non-vital parts. Such a report of the incident was given to police on 10.07.2024. 4. The counsel for the accused argued that there was a delay of three days in filing the FIR without a good reason; that the accused is a police constable who was on duty at the time of the incident; that the medical report does not show any gunshot wounds on the victim's vital parts, and the type of weapon used is listed as a sharp cutting substance; that the injuries of the other victims are listed as caused by a hard blunt substance; that there was no actual incident, and the complaint was filed due to a dispute over cotton sales; that no witnesses from the local area are listed in the FIR or case; that the offense does not fall under the prohibited clause of Section 497 of the Criminal Procedure Code; that the accused has connections to a local landlord who belongs to the ruling party, and the complaint may be influenced by this; that the case needs further investigation. Based on these arguments, the counsel requested post-arrest bail for the accused. In support of his contentions, he relied upon the cases of Mir Muhammad v. The State [2024 SCMR 805], Muhammad Ijaz v. The State [2022 SCMR 1271], Muhammad Faisal v. The State and another [2020 2 SCMR 971] and Abd-ur-Razak alias Karo v. The State [2012 MLD 1656]. 5. The prosecution argues that the accused are guilty of the crime based on the evidence that they are named in the FIR with specific roles in the crime; that the accused demanded food from the complainant's shop without paying; that the police recovered weapons used in the crime from the accused; that the medical evidence supports the complainant's version of events; that witnesses have corroborated the complainant's story; that the co-accused Hadi Bux inflicted a serious injury on the victim. The prosecution argues that there is no need for further investigation and that the accused has not proven any wrongdoing on the part of the complainant. They request that the bail application be denied. 6. Tentative assessment of record reflects that the accused are named in the FIR with specific roles. The complainant alleges that the accused committed acts of violence, including assault with deadly weapons, resulting in injuries to multiple individuals. The FIR details the accused's actions, including the use of a gun, hatchet, and sticks. Witnesses corroborate the complainant's account, and medical evidence supports the claims of injuries. The motive for the attack is also outlined in the FIR, stemming from a dispute over payment. The injuries sustained by the victims are classified under various sections of the Pakistan Penal Code (P.P.C.), including 337-D and 324. These offenses are non-bailable and carry potential penalties, including imprisonment and fines. Based on the evidence presented, including the FIR, witness statements, medical reports and recovered weapons, there is a prima facie case against the accused. They have not demonstrated any grounds for further inquiry or bail. 7. For the reasons to follow, the captioned bail application is dismissed leaving the trial Court to examine the complainant and injured within two months and if the charge is not framed, the same shall be framed on the date so fixed by the trial Court; however, it is expected that the trial Court will endeavor to comply the directions contained in this case. JK/G-2/Sindh Application dismissed.