Summary: Criminal Procedure Code (V of 1898)--- Ss. 498 & 497(2)---Penal Code (XLV of 1860), Ss.506(ii) & 34---Criminal intimidation, common intention---Ad-interim pre-arrest bail, confirmation of---Further inquiry---Section 506, P.P.C. has two parts and the latter part of the same is the continuity of the earlier part and it is not to be read separately---Both parts are distinguishable with regard to the nature, gravity and threat and the quantum of sentence only but the second part is neither an independent provision nor it makes a threat simpliciter, into criminal intimidation---Such misconception must be removed as the same results in misquoting of a penal provision and wrong application of the same---Crime report divulged that though petitioner threatened the complainant and the other witness yet it was nowhere mentioned therein that the same was done with an intent to cause alarm to the witnesses or to cause them to do any act which they were not legally bound to do, or not to do any act which they were legally entitled to do, as the means of avoiding the execution of such threat---Culpability of the petitioner for an offence punishable under S.506 of P.P.C., required determination by the Trial Court which made the case one of further inquiry into petitioner's guilt entitling him to the grant of relief---Petitioner had already joined the investigation thus, sending him behind bars was not justified---Bail application was allowed and ad-interim pre-arrest bail already granted to the petitioner was confirmed, in circumstances. Muhammad Haroon Gondal with Petitioner. Ch. Awais Aslam Sindhu for the Complainant. Waqas Anwar, Deputy Prosecutor General and Sajjad ASI for the State. Order Syed Shahbaz Ali Rizvi, J .--- Through this petition, Habib ur Rehman petitioner seeks pre-arrest bail in case FIR No.519 dated 12.07.2024 registered for offences under Sections 506(ii) and 34 of Pakistan Penal Code, 1860, at Police Station Bambanwala, District Sialkot. 2. Arguments heard. Record perused. 3. Perusal of crime report transpires that petitioner intercepted Shahid Ali and Imran on their way to home and on gunpoint abused and extended them life threats. Admittedly, as per contents of crime report though petitioner threatened the complainant and the other witness yet it is nowhere mentioned therein that the same was done with an intent to cause alarm to the witness or to cause them to do any act which they are not legally bound to do, or not to do any act which they are legally entitled to do, as the means of avoiding the execution of such threat. Perusal of relevant column of the FIR transpires that Section 506(ii) of Pakistan Penal Code, 1860, has been applied against the petitioner while reading of Chapter XXII of the Code ibid reveals that Section 506(ii) or 506(B) is non-existent. However, with regard to the quantum of sentence and the nature of threat, Section 506 of Pakistan Penal Code, 1860, without mentioning any first or second part explains to the effect that if the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or imprisonment for life, or with imprisonment for a term which may extend to seven years, or to impute unchastity to a woman, the offender would be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both. The earlier part of the same section says as under:- "whoever commits the offence of criminal intimidation shall be punished with imprisonment which may extend to three years or with fine up to five hundred thousand rupees or with both." While definition of criminal intimidation is provided in Section 503 of the Criminal Procedure Code, 1898, that goes as under:- "Whoever threatens another with an injury to his person, reputation or property, or to the person or reputation of anyone in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat" The latter part of the subject provision is the continuity of the earlier part and it is not to be read separately. Both parts are distinguishable with regard to the nature, gravity of threat and the quantum of sentence only but the second part neither is an independent provision nor it makes a threat simplicitor, criminal intimidation. Misconception existing and noticed by this Court must be removed as the same results in misquoting of a penal provision and wrong application of the same. 4. Now coming back to the merits of the case in hand, in consideration of mentioned supra, culpability of the petitioner for an offence punishable under Section 506 of Pakistan Penal Code, 1860, yet requires determination by the learned trial court which makes this case one of further inquiry into petitioner's guilt entitling him to the grant of relief being craved. Petitioner has already joined the investigation hence, sending him behind the bars does not look justified. Being so, this petition is allowed and ad-interim pre-arrest bail already granted to the petitioner is confirmed subject to his furnishing fresh bail bonds in the sum of Rs.100,000/- with one surety in the like amount to the satisfaction of learned trial court. 5. Copy of this order be sent to the Inspector General of Police, Punjab, and the Prosecutor General, Punjab. SA/H-15/L Bail confirmed.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 324, 353, 186 & 34---Anti-Terrorism Act (XXVII of 1997), S. 7---Murderous assault on police, acts of terrorism---Appreciation of evidence---Accused was charged that he along with his co-accused made firing upon the police party; in retaliation police also made firing due to which appellant sustained firearm; injury and co-accused ran away from the spot---Record showed that it was a case of spy information, incident had occurred on a road in thickly populated area, but no efforts were made by the police to associate private persons---As per prosecution evidence, there was cross-firing with sophisticated weapons but neither Police Officials sustained firearm injury nor damage was caused to police mobile which appeared to be unbelievable---On the other hand, appellant had sustained fire shot injury on his right leg---So far as Injury No. 2 on the person of the appellant was concerned, record reflected that it had been suppressed by the police---According to the Medical Officer, Injury No. 2 was 03 to 04 days old and was caused to the appellant with hard blunt substance---Prosecution could not explain how Injury No. 2 was sustained by the appellant---Element of terror or panic was missing in the case---Conviction and sentence under S.7 of the Act 1997 was also not sustainable---Police Officials did not record or take photographs when search, seizure and arrest of the appellant was made---Moreover, it was night time incident, source of light was not mentioned by the Police Officials in their evidence and mashirnama of arrest and recovery was also silent on such aspect of the case---In the mashirnama of arrest and recovery, description had been mentioned, but evidence of Police Officials was silent on that respect---Prosecution could not explain such omission in the evidence---Safe custody and safe transmission of the pistol used in the crime had not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned Police Station---Investigation Officer failed to preserve the finger prints of the accused and on pistol during course of encounter---Moreover, there were also major contradictions in the evidence of prosecution witnesses on material particulars of the case---Appeal against conviction was allowed, in circumstances. Zahid Sarfaraz Gill v. The State 2024 SCMR 934 ref. (b) Criminal trial--- ----Benefit of doubt---Principle---If there is a circumstance which creats reasonable doubt in a prudent mind about the guilt of the accused, the benefit of such doubt, must be given to him not as a matter of grace and concession but as a matter of right. Muhammad Mansha v. The State 2018 SCMR 772 rel. Khuda Dino Sangi for Appellant. Abrar Ali Khichi, Additional Prosecutor General Sndh for the State. Date of hearing: 12th September, 2024. Judgment Naimatullah Phulpoto, J .--- It is the case of the prosecution that SIP Ghulam Hussain along with his subordinate staff left for patrolling on 06.08.2022. During patrolling, police party received spy information that two suspected persons were present near Liyari Railway Station, Maripur Road. Police party proceeded to the pointed place and reached there at 0200 hours and saw two persons in suspicious manner, who on seeing police party started firing, police also fired in self defence, resultantly, appellant sustained fire arm injury and co-accused ran away from the spot. In the incident, no injury was caused to the police officials. Police arrested the appellant, on enquiry he disclosed his name as Jawaid Shah. Police recovered one unlicensed .30 bore pistol without number and four live bullets from his possession; mashirnama of arrest and recovery was prepared in presence of mashirs namely PCs Gulsher and Muhammad Aslam. Thereafter, appellant was referred to the Hospital and SIP Ghulam Hussain came at the police station and lodged two FIRs bearing Crime No.237/2022 for offences punishable under Sections 353, 324, 186, 34, P.P.C. read with Section 7 of ATA, 1997 and Crime No. 238/2022 for offence punishable under Section 23(1)(a) of Sindh Arms Act, 2013 at P.S Kalri, Karachi on behalf of State. 2. During investigation, crime weapon .30 bore pistol, bullets and empties were dispatched to the Ballistic Expert, positive report was received. On the conclusion of the usual investigation, challan was submitted against accused under the above referred sections. 3. At trial, both cases one relating to police encounter and another relating to the recovery of unlicensed pistol of .30 bore from appellant were jointly tried in terms of Section 21-M of Anti-Terrorism Act, 1997. 4. Trial Court framed Charge against the appellant, he pleaded not guilty and claimed to be tried. In order to substantiate the charge, prosecution has examined 04 P.Ws who produced the relevant documents at trial. Thereafter, prosecution side was closed. 5. Trial Court recorded statement of accused under Section 342, Cr.P.C, in which he denied the prosecution's allegations and claimed false implication in this case. Accused declined to examine himself on oath in disproof of the prosecution allegations and did not lead evidence in his defence. 6. Trial Court, after hearing learned counsel for the parties and assessment of the evidence vide judgment dated 15.06.2023 convicted the appellant under Section 7(h) of ATA, 1997 read with section 353, P.P.C. and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was convicted under Section 7(h) of ATA, 1997 read with section 324, P.P.C. and sentenced to undergo 05 years R.I and to pay fine of Rs.5000/-. In case of default, he was directed to undergo 03 months S.I. Appellant was also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to undergo 05 years R.I and to pay fine of Rs.3000/- In case of default, he was directed to undergo 03 months S.I. All the sentences were directed to run concurrently. Appellant was also extended benefit of section 382(b), Cr.P.C. Thereafter, appellant filed instant Appeal. 7. Learned advocate for the appellant has mainly contended that prosecution story is highly unnatural and unbelievable; that it was night time incident but source of light on which mashirnama of arrest and recovery was prepared has not been mentioned; that description of the pistol allegedly recovered from the possession of the appellant has not been mentioned; that though it was the case of cross firing with sophisticated weapons but not a single injury was caused to any police official. Learned advocate for the appellant pointed out that Doctor, who examined the appellant, opined that injury No.2 on the person of the appellant was 03 to 04 days old, whereas, according to the prosecution case, soon after the incident, appellant in injured condition was referred to the Hospital but no where injury No.2 was on the person of injured appellant has been mentioned. Lastly, it is submitted that appellant is entitled to the acquittal by extending him benefit of doubt. In support of his contentions reliance is placed upon the case reported as Zahid Sarfaraz Gill v. The State (2024 SCMR 934). 8. On the other hand learned, Addl. P.G Sindh contended that evidence of police official is reliable and confidence inspiring; that appellant was arrested on spot in injured condition and an unlicensed pistol was recovered from his possession. Prosecution has succeeded to prove its' case against the appellant and prayed for dismissal of the appeal. 9. We have heard arguments of learned Advocate for the appellant, Addl. P.G and have gone through the entire evidence, which has been read out by learned Advocate for the appellant and the impugned judgment and have considered the relevant law cited at bar. 10. After re-assessment of the evidence, we have come to the conclusion that prosecution has miserably failed to prove its' case against the appellant for the reasons that it was a case of spy information, incident had occurred on a road in thickly populated area, but no efforts were made by the police to associate private person. It is the prosecution evidence that there was cross-firing with the sophisticated weapons but neither police official sustained firearm injury nor damage was caused to police mobile which appears to be unbelievable. On the other hand, appellant had sustained fire shot injury on his right leg. So far injury No.2 on the person of the appellant is concerned, record reflects that it has been suppressed by the police. According to the Doctor, injury No.2 was 03 to 04 days old and was caused to the appellant with hard blunt substance. Addl. P.G could not explain injury No.2 that how that was sustained by the appellant. On the other hand, advocate for appellant has contended that it is a case of false police encounter and appellant was arrested by police 04 days prior to registration of cases. Element of terror or panic is missing in the case. Conviction and sentence under section 7 of the Anti-Terrorism Act, 1997 was also not sustainable. Police officials did not record or took photographs when search, seizure and arrest of the appellant was made. It was night time incident, source of light is not mentioned by the police officials in their evidence and mashirnama of arrest and recovery is also silent on this aspect of the case. So far description of the pistol is concerned, in the mashirnama of arrest and recovery, description has been mentioned, but evidence of police officials is silent on this respect. Addl. P.G could not explain such omission in the prosecution evidence. Safe custody and safe transmission of the pistol used in crime has not been established before the trial Court, for the reason that prosecution failed to examine Incharge Malkhana of concerned police station. The Investigation Officer failed to preserve the finger prints of the accused and on pistol during course of encounter. There are also major contradictions in the evidence of prosecution witnesses on material particulars of the case. 11. Needless to mention that while giving the benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused would be entitled to the benefit of such doubt, not as a matter of grace and concession, but as matter of right. Reliance in this respect can be made upon the case of Muhammad Mansha v. The State (2018 SCMR 772). 12. For what has been discussed above, we find that prosecution has failed to prove its' case against the appellant beyond any reasonable doubt to sustain conviction. Consequently, this appeal is allowed and impugned judgment is set aside, appellant Javed Shah son of Niaz Muhammad Shah is acquitted of the offences, for which he was charged, tried and convicted by learned trial Court and he be released forthwith, if not required to be detained in any other custody case. 13. These are the reasons for our short order announced on 12.09.2024, whereby instant Special Criminal Anti-Terrorism Jail Appeal was allowed. JK/J-1/Sindh Appeal allowed.

Summary: Criminal Procedure Code (V of 1898)--- ----S. 526---Penal Code (XLV of 1860), Ss. 499 & 500---Constitution of Pakistan, Art. 10-A---Defamation---Delay in conclusion of trial in private complaint---Application for transfer of trial---Allegations of prejudice and bias made against Trial Judge based on unsubstantiated apprehensions---Free and fair trial is a sine qua non for criminal justice system---Guarantee of fair trial is the foremost imperative in the administration of justice and serves as the central criterion for the court's consideration---When evaluating a motion for transfer of a case and for the transfer of a criminal case, the party must demonstrate a reasonable apprehension that justice will not be served---Apprehension of not receiving a fair and impartial inquiry or trial must be reasonable and grounded in facts, rather than being speculative or based on conjectures and surmises---Proceedings pending before one competent court should not be transferred to another court merely on bald assertions or allegations of any of the parties unless the same are supported by strong, cogent reasons and convincing evidence---Bias in a judge must be demonstrated as a fact, not merely as an opinion---Real likelihood of bias must be established, grounded in personal prejudice so significant that it impairs the judge's ability to act impartially in the specific case---Applicant failed to establish any reasonable apprehension of being denied a fair trial, as he lacked sufficient merit to raise concern in the mind of a prudent and reasonable person---Without clear evidence/ material, such claims do little more than cast unwarranted aspersions on the impartiality of the trial judge, an act that is both baseless and deeply unwarranted---Transfer application of the applicant was dismissed, in circumstances. Ms. Benazir Bhutto v. The President of Pakistan and another 1992 SCMR 140 rel. Mian Muhammad Awaiz with the Petitioner. Order Ali Zia Bajwa, J .--- Through this application filed under Section 526, Cr.P.C., the applicant seeks transfer of the trial of private complaint titled 'Shabnam Riaz v. Naila Karim' offences under Sections 499, 500 and 501, P.P.C. from the court of Mr. Majid Waqar Aheer, Additional Sessions Judge, Lahore to any other court of competent jurisdiction. 2. Arguments heard; record perused. 3. The aforementioned private complaint was filed as far back as the year 2020. Respondent No. 1/accused was summoned to stand trial on 02.12.2020 and was formally indicted on 29.07.2021. However, the trial has yet to be concluded, having been delayed repeatedly for one reason or another. This transfer application has been filed mainly on the grounds that the learned trial judge has allegedly become prejudiced and biased against the applicant, raising concerns that a just and impartial decision may not be possible. 4. The transfer of a case from one court to another on the grounds of alleged bias and prejudice against a judicial officer is a matter of critical significance. Such accusations directly challenge the integrity and impartiality of the judge, therefore, the same must not be treated lightly, as unfounded allegations can undermine public confidence in the judicial system and unjustly harm the reputation of judicial officers without cause. It has regrettably become a prevalent trend to levy baseless allegations against judges, undermining the image, dignity, and honor of the judiciary in the eyes of the public at large. Such practices must be firmly suppressed and addressed with resolute measures to preserve the sanctity of judicial institutions. 5. The core principle governing the acceptance of a transfer application is the assurance of a fair trial, as enshrined in Article 10-A of The Constitution of the Islamic Republic of Pakistan, 1973. A free and fair trial is a sine qua non of our criminal justice system. The guarantee of a fair trial is the foremost imperative in the administration of justice and serves as the central criterion for the court's consideration when evaluating a motion for transfer of a case. For the transfer of a criminal case, the party must demonstrate a reasonable apprehension that justice will not be served. A fundamental principle of the justice system is that it must not only be done but also be seen to be done. The apprehension of not receiving a fair and impartial inquiry or trial must be reasonable and grounded in facts, rather than being speculative or based on conjecture and surmise. The proceedings pending before one competent court should not be transferred to another court merely on bald assertions or allegations of any of the parties unless the same are supported by strong, cogent reasons and convincing evidence. 6. The bias in a judge must be demonstrated as a fact, not merely as an opinion. A real likelihood of bias must be established, grounded in personal prejudice so significant that it impairs the judge's ability to act impartially in the specific case. The Supreme Court of Pakistan has addressed the issue of transferring cases based on allegations of judicial bias. In the case titled "Ms. Benazir Bhutto v. The President of Pakistan and another" (1992 SCMR 140), the Court emphasized that mere allegations of bias or prejudice against a judge are insufficient grounds for transferring a case. The Court held that such allegations must be substantiated with clear and credible evidence demonstrating a reasonable apprehension of bias to warrant a transfer. 7. The apprehension, foreseen by the applicant, is neither plausible nor substantiated through any material/evidence. Nothing has been presented on the record to substantiate that the trial judge harbors any bias or prejudice against the applicant, nor is there any indication that he has revealed a predisposition to decide against her. The grounds presented by the applicant fail to establish any reasonable apprehension of being denied a fair trial, as they lack sufficient merit to raise concern in the mind of a prudent and reasonable person. The allegations appear to be much ado about nothing, lacking any credible foundation. Without clear evidence/material, such claims do little more than cast unwarranted aspersions on the impartiality of the trial judge, an act that is both baseless and deeply unwarranted. 8. For what has been discussed above, the instant transfer application having no force is dismissed in limine. However, the trial court is directed to ensure a fair, transparent, and expeditious conclusion of the trial being an old matter, preferably within three months, in strict accordance with the law and without any fear or favor. Compliance report in this regard shall be filed through Deputy Registrar (Judicial) of this Court. SA/S-9/L Application dismissed.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----Ss. 497(5) & 498---Penal Code (XLV of 1860), 324, 337-F(i), 337-F(iii), 337-F(iv) & 34---Attempt to commit qatl-i-amd, ghayr-jaifah-damiyah, ghayr-jaifah-hashimah, ghayr-jaifah-mudihah, common intention---Ad-interim pre-arrest bail, recalling of---Allegation against the applicant was that he along with his co-accused caused firearm injuries to the daughter-in-law and sister of complainant---Record showed that the applicant was nominated by name in the promptly recorded F.I.R with specific role of causing firearm injuries to daughter-in-law of complainant, who as per Medico-Legal Certificate, had received 10 pellets injuries on vital parts of her body---Such injuries, if inflicted to any women, may cause disfigurement of parts of the body especially breast, which represent fertility, femininity and vitality---Injured daughter-in-law of the complainant had sustained injuries on sensitive parts of her body on account of direct fire made on her by the applicant with a repeater gun---Evidence on record indicated that an attempt was made by the applicant on the life of the said injured---Hence, offence under S.324, P.P.C, was prima facie attracted to the present case, which being punishable with imprisonment for ten years, fell within the prohibitory clause of S.497, Cr.P.C---Sufficient material was available with the prosecution to connect the applicant with the commission of alleged offence---Petition was dismissed, in circumstances, and ad-interim pre-arrest bail earlier granted to the petitioner was recalled. Zaigham Ashraf v. The State and others 2016 SCMR 18; Haji Maa Din and another v. The State and another 1998 SCMR 1528; Syed Amanullah Shah v. The State and another PLD 1996 SC 241 and Ghulam Muhammad alias Masood v. The State 2020 YLR Note 56 ref. Khalida Bibi v. Nadeem Baig PLD 2009 SC 440 rel. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 497 & 498 ---Bail---Observations of Court---Scope---Observations made in a bail order are tentative in nature and do not influence the Trial Court while deciding the case on merits. Wajid Ali Khaskheli for Applicant. Ms. Sana Memon, Assistant Prosecutor General, Sindh for the State. Abdul Rasool Abbasi for the Complainant. Date of hearing: 23rd September, 2024. Order Zafar Ahmed Rajput , J.--- Through instant Criminal Bail Application, applicant Ghulam Murtaza seeks pre-arrest bail in Crime No.60 of 2024, registered under sections 324, 337-F(i), 337-F(iii), 337-F(vi), 34, P.P.C. at P.S. Sehwan. His earlier application for the same relief bearing Cr.B.A.No.74 of 2024 was heard and dismissed by the learned Additional Sessions Judge-II, Jamshoro at Kotri vide order dated 09.08.2024. He was admitted to interim pre-arrest bail by this Court vide order dated 26.08.2024, now the matter is fixed for confirmation of the same or otherwise. 2. It is alleged that, on 13.05.2024, at about 01:00 p.m., the complainant along with his daughter-in-law Mst. Seema and his sister Mst. Afsana Jalbani went to village Gulab Jalbani for condolence of their relative and on their returning they reached Bobak Sabeel, Railway Station Link Road, where their motorcycle became punctured. Meanwhile, the applicant along with co-accused Razzaq son of Manthar, both armed with repeaters, and Badal son of Gahi Khan, armed with pistol, came and in furtherance of their common intention, the applicant attempted to commit qatl-e-amd of Mst. Seema wife of Abdul Qadir (the daughter-in-law of complainant) by causing her direct firearm injuries with repeater; co-accused Razzaq made direct fire on Mst. Afsana (the sister of complainant) with his repeater. Then applicant again made straight fire from his repeater on Mst. Seema while co-accused Badal made fire with his pistol on the complainant which went missed. The accused persons then fled away and the injured were taken to Sehwan Hospital. 3. Learned counsel for the applicant contends that the applicant is innocent and has falsely been implicated in the case by the complainant with mala fide intention and ulterior motives; that the alleged injury is on non-vital parts of the body of the injured Mst. Seema; that in the F.I.R. the complainant has attributed two repeater fires to applicant, while the said injured in her statement recorded under section 161, Cr. P.C. has attributed one to applicant and the other to co-accused Razzaq, which creates doubt in prosecution case rendering the case one of further inquiry; that there is no independent witness of the alleged incident; that the alleged injuries are punishable in maximum with imprisonment of three years for the offence under section 337-F(iii), P.P.C., which does not fall within the prohibitory clause of section 497, Cr. P.C., and so far application of section 324, P.P.C. is concerned, its applicability would be seen by the trial Court after recording pro and contra evidence of the parties; hence, the applicant is entitled to the concession of bail. In support of his contentions, learned counsel has relied on the case of Zaigham Ashraf v. The State and others (2016 SCMR 18), Haji Maa Din and another v. The State and another (1998 SCMR 1528), Syed Amanullah Shah v. The State and another (PLD 1996 SC 241) and Ghulam Muhammad alias Masood v. The State (2020 YLR Note 56). 4. On the other hand, learned counsel for the complainant and Assist. P.G. have opposed the instant application on the ground that the applicant has caused firearm injuries to injured witness Mst. Seema on her vital part, which fact is duly corroborated by the MLC; hence, he is not entitled to the extra ordinary relief of pre-arrest bail. 5. Heard learned counsel for the parties and perused the material available on record. 6. It is matter of record that the applicant is nominated by name in the promptly recorded F.I.R. with specific role of causing firearm injuries to Mst. Seema who, as per MLC, has received 10 pellets injuries on her left side of chin, left ear region, upper arm, upper arm below, lateral and upper sides of left breast, medial side of right breast and centre chest, which have been declared by the MLO as Shajjah-i-khafifah and Ghayr-jaifah mutalahimah punishable under Sections 337-A(i) and 337-F(iii), P.P.C., respectively. The breast and chest are vital parts of human body and any such injuries, if inflicted to any woman, it may cause disfigurement of her such parts of the body especially breast, which represent fertility, femininity and vitality. The injured, Mst. Seema, has sustained said injuries on her sensitive parts of her body on account of direct fire made on her by the applicant with her repeater gun. Evidence on record indicates that an attempt was made by the applicant on the life of said injured. Hence, offence under section 324, P.P.C. is prima facie attracted to the present case, which being punishable with imprisonment for ten years, falls within the prohibitory clause of section 497, Cr.P.C. As such, prima facie sufficient material is available with the prosecution to connect the applicant with the commission of alleged offence. 7. Moreover, the learned counsel for applicant has not been able to point out any special feature of the case entitling the applicant to grant of extra ordinary concession of pre-arrest bail. It is now settled principal of law that in order to justify the grant of anticipatory bail, the accused is required to show that he apprehends his arrest on account of ulterior motives. One of the main considerations for grant of bail is whether the prosecution is motivated by malice so as to cause irreparable injury to citizen's reputation and liberty. The accused approaching the Court of law for grant of anticipatory bail is required to show that he is falsely implicated for extraneous consideration and ulterior motives are behind his arrest. Learned counsel for the applicant has remained unable to persuade me to hold that accused had no concern with the alleged offence. Hence, in the instant case the pre-requisites for such concession i.e. malice and ulterior motives either on the part of complainant or the police are conspicuously missing. 8. As regards the contentions of the learned counsel for the applicant, suffice to say that the Court under subsection (2) of the Section 497, Cr.P.C. has to assess tentatively the material produced before it and to see if reasonable ground exists to believe, prima facie involvement of accused in the commission of offence and if the accused found connected with the commission of offence, he will not be released on bail on the basis of further inquiry. Reliance in this regard may be placed in the case of Khalida Bibi v. Nadeem Baig (PLD 2009 SC 440). The question whether the injured Mst. Seema sustained alleged injuries due to double fires of applicant or one of applicant and the other of co-accused Razzaq, it would be seen at the trial by the trial Court. The case-law cited by the learned counsel for the applicant being on different footings does not advance the case of applicant for the grant of pre-arrest bail. Hence, this bail application is dismissed. Interim order, dated 26.08.2024, stands recalled. 9. Needless to mention here that the observations made hereinabove are tentative in nature and would not influence the trial Court while deciding the case on merits. JK/G-22/Sindh Application dismissed.

Summary: (a) Criminal Procedure Code (V of 1860)--- ----S. 497(2)---Penal Code (XLV of 1860), Ss. 302 & 34---Qatl-i-amd, common intention---Bail, grant of---Further inquiry---Allegation against the accused-petitioners was that they committed murder of the son of complainant by firing---Record showed that one of the petitioners was neither equipped with any weapon nor caused any injury to deceased or anybody else in the case rather he was present at the place of occurrence empty handed and did not perform any role in the occurrence---Since no empty of .9mm pistol was found at the spot and no report regarding matching of any empty of .30-bore pistol secured from the spot with pistol allegedly recovered from petitioner was available on record as apprised by prosecution, therefore, evidentiary value of recovery of pistol .9mm from co-accused and pistol .30-bore from petitioner would be determined during trial---Supplementary statement of complainant also required evidential verification during trial---Moreover, co-accused had already been granted post arrest bail in the case, which order was still in field and had neither been challenged by the prosecution nor by the State--- When all said factors were taken into consideration in totality, then question of sharing common intention as well as vicarious liability to the extent of present petitioners would be seen during trial of the case---Case of prosecution, at present, against both petitioners required further probe/inquiry within the purview of subsection (2) of S.497, Cr.P.C.---Both petitioners were arrested in the case on 12.04.2024, sent to jail on 25.04.2024 where they were confined till now---Mere detention of the petitioners in lock-up, in such circumstances, would serve no useful purpose to the case of prosecution---Bail could not be withheld as advance punishment---Bail application was allowed, in circumstances. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 497 & 498---Bail---Principle---Better to err in granting bail than to err in refusal because ultimate conviction and sentence could repair the wrong resulting due to mistaken relief of bail. Chairman, National Accountability Bureau through P.G., NAB v. Nisar Ahmed Pathan and others PLD 2022 SC 475 rel. (c) Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Bail---Observations made in bail order---Such observations are just tentative in nature, strictly confined to the disposal of bail petitions and same have no bearing upon trial of the case. Aftab Hussain Bhatti for Petitioner (in Crl. Misc. No. 43092-B of 2024). Naeem Ijaz Insari for Petitioner (in Crl. Misc. No. 62505-B of 2024). Nisar Ahmad Virk, Deputy Prosecutor General for the State along with Khizar, S.I. and record of the case for the State. Ch. Muhammad Atif Saeed for the Complainant. Order Farooq Haider, J .--- This single order will dispose of two petitions for post arrest bail i.e. Crl. Misc. No.43092-B/2024 filed by Zulqarnain (petitioner) and Crl. Misc. No.62505-B/2024 filed by Muhammad Rafique (petitioner) as both these petitions have been filed in case arising out of F.I.R. No.361/2024 dated: 10.04.2024 registered under Sections: 302, 109, 34, P.P.C. (offence under Section: 109, P.P.C. was though deleted during investigation however same was again added) at Police Station: Dijkot, District Faisalabad. 2. After hearing learned counsel for the parties, learned Deputy Prosecutor General and going through the available record with their able assistance, it has been noticed that briefly, as per Crime Report (FIR) got recorded by Sharafat Ali (complainant), Muhammad Rafique (now petitioner in Crl. Misc. No.62505-B/2024) armed with pistol while making firing raised lalkara, Arbab gave blow with butt of pistol at forehead of Muhammad Usman (son of the complainant, now deceased of the case), then Muhammad Rafique armed with pistol .9mm gave butt blow of pistol at nose of Muhammad Usman, Zulqarnain (now petitioner in Crl. Misc. No.43092-B/2024) gave blow with butt of pistol at forehead of Muhammad Usman; meanwhile Muzammil Hussain fired shot with pistol .30-bore which hit at front of chest of Muhammad Usman at left side and went through and through who fell on the ground; accused persons fled away while issuing threats and making firing. So, as per crime report (FIR), Muhammad Rafique was armed with pistol, he fired shot, raised lalkara and also gave blow with butt of pistol at nose of Muhammad Usman (now deceased of the case) whereas Zulqarnain gave blow with butt of pistol at forehead of Muhammad Usman, however, on Court's query, learned Deputy Prosecutor General under instructions of police official (present in Court) and after himself going through the available record apprises that second investigation of the case was entrusted to Deputy Superintendent of Police, Headquarters, Police Line Faisalabad, who after thorough investigation vide case diary No. 50 dated: 07.10.2024 concluded that Muzammil Hussain (co-accused) made firing and fired straight shot at Muhammad Usman, which hit at front chest and went through and through, who (Muhammad Usman) after receiving said fire shot ran a little towards his house but after covering short distance fell at metalled road on his face , due to which he received injuries at his mouth, forehead and nose and it was not mentioned therein that Muhammad Rafique or Zulqarnain caused injuries to Muhammad Usman by giving blows with butt of pistol. This is not out of place to mention here that as per postmortem examination report of the deceased, injury on Nasal Bridge is "Abrasion 1x1cm" whereas at forehead above left eye brow is also "Abrasion 3x1cm", which are not cause of death. It has been also noticed that as per crime report (FIR), Arbab (co-accused) was also ascribed the role of giving blow with butt of pistol at forehead of Muhammad Usman; meaning thereby that as per FIR, two blows were given at the forehead of Muhammad Usman i.e. one by Arbab and other by Zulqarnain however as per copy of postmortem examination report (available on the record), there is only one injury at forehead of Muhammad Usman (deceased of the case) as mentioned above. Learned Deputy Prosecutor General further apprises that subsequently complainant got recorded his supplementary statement while mentioning therein that Arbab gave blow with butt of pistol at left knee of Muhammad Usman (now deceased of the case). Though as per FIR Muhamad Rafique also made firing yet any empty of .9mm pistol was not found at the place of occurrence by the Investigating Officer; allegation of raising lalkara has been levelled against Muhammad Rafique however it is relevant to mention here that when as per own case of prosecution, Muhammad Rafique was himself armed with .9mm pistol and also made firing, then what was the hindrance in his way to fire shot straight at Muhammad Usman and himself kill him, is a mystery/question mark and in said state of affairs, whether lalkara allegedly raised by Muhammad Rafique was "commanding" or mere "proverbial" in nature would be determined during trial of the case. It has also been apprised by learned Deputy Prosecutor General that after thorough investigation carried out by Deputy Superintendent of Police, Headquarters, Police Line Faisalabad, it has been concluded by him that Zulqarnain was neither equipped with any weapon nor caused any injury to deceased or anybody else in the case rather he was present at the place of occurrence empty handed and did not perform any role in the occurrence. Since any empty of .9mm pistol was not found at the spot and any report regarding matching of any empty of .30-bore pistol secured from the spot with pistol allegedly recovered from Zulqarnain is not available on the record as apprised by learned Deputy Prosecutor General therefore evidentiary value of recovery of pistol .9mm from Muhammad Rafique and pistol .30-bore from Zulqarnain would also be determined during trial. Aforementioned supplementary statement of complainant also requires evidential verification during trial. It is also relevant to mention here that Arbab (co-accused, mentioned above) has already been granted post arrest bail in the case vide order dated: 09.07.2024 (copy available on the record) passed by learned Additional Sessions Judge, Faisalabad, which order is still holding the field and has neither been challenged by the prosecution nor by the State as confirmed by learned Deputy Prosecutor General as well as by learned counsel for the complainant. When all aforementioned factors are taken into consideration in totality, then question of sharing common intention as well as vicarious liability to the extent of present petitioners i.e. Muhammad Rafique and Zulqarnain would be seen during trial of the case, however, case of prosecution, at present, against both petitioners requires further probe/inquiry within the purview of subsection (2) of Section 497, Cr.P.C. Both petitioners were arrested in the case on 12.04.2024, sent to jail on 25.04.2024 where they are confined till now. Mere detention of the petitioners in lock-up, in aforementioned circumstances, would serve no useful purpose to the case of prosecution. Bail cannot be withheld as advance punishment. Liberty of a person is a precious right which has been guaranteed by the Constitution of Islamic Republic of Pakistan, 1973. By now it is also well settled that it is better to err in granting bail than to err in refusal because ultimate conviction and sentence can repair the wrong resulted by a mistaken relief of bail; in this regard, case of "Chairman, National Accountability Bureau through P.G., NAB v. Nisar Ahmed Pathan and others" (PLD 2022 SC 475) can be advantageously referred and its relevant portion from Page No(s). 480-481 is reproduced:- "To err in granting bail is better than to err in declining; for the ultimate conviction and sentence of a guilty person can repair the wrong caused by a mistaken relief of bail, but no satisfactory reparation can be offered to an innocent person on his acquittal for his unjustified imprisonment during the trial." 3. In view of above, both petitions for grant of post arrest bail bearing Crl. Misc. No.43092-B/2024 filed by Zulqarnain (petitioner) and Crl. Misc. No.62505-B/2024 filed by Muhammad Rafique (petitioner) are accepted/allowed and they are admitted to bail in the case subject to their furnishing bail bonds in the sum of Rs.5,00,000/- (Rupees five hundred thousand only) each with two sureties each in the like amount to the satisfaction of trial court. 4. It goes without saying that observations mentioned above are just tentative in nature, strictly confined to the disposal of instant bail petitions and will have no bearing upon trial of the case, which would be concluded by the trial court expeditiously and preferably within a period of four months after receipt of attested copy of this order. Needless to add that if petitioners or anybody else acting on their behalf will create any hurdle in the way of conclusion of trial as directed above, then complainant as well as State would be at liberty to move for recalling of this order. JK/Z-14/L Bail granted.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Delay of five days in lodging the FIR---Not-consequential---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---FIR was lodged after a delay of five days, which had not been fully explained---Admittedly, the complainant took the dead body to the hospital where it was subject to post mortem and then was released to him on the same day for burial purposes---Under such circumstances, it would have been expected that the FIR would have been lodged the next day or at a maximum after two days yet three days had gone unexplained before the FIR was finally lodged---Usually such delay was fatal to the prosecution case however in this case it was noted that on the same day after two hours the incident was reported to the Investigating Officer---As per evidence of Investigating Officer, the complainant informed him that the appellant had murdered his brother hence he had gone to the hospital to complete legal formalities---As such, based on the particular facts and circumstances of the case where the Investigating Officer was informed by the complainant about the identity of the murderer within two hours of the incident, the delay in lodging the F.I.R was not found fatal to the prosecution case---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C, instead of under S.302(b), P.P.C and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Ocular account supported by medical evidence---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Complainant/eye-witness was related to the deceased and the accused and no proven enmity had come on record between the complainant and the accused and as such his evidence could not be discarded and had to be considered at its own worth---Complainant knew the accused before the incident---Incident happened in front of complainant in broad day light at 9.30 am in the morning and hence there was no need for an identification parade---Complainant was not a chance witness as his house was nearby and he was working in his land with his brother/deceased---Complainant had no proven enmity or ill will with the accused and as such had no reason to implicate him in a false case---Complainant gave his evidence in a straight forward manner and was not dented during cross-examination---Evidence of complainant was found to be reliable, trustworthy and confidence inspiring especially in relation to the identification of the accused---Moreover, it did not appeal to logic, commonsense or reason that a brother would let the real murderer of his real brother get away scot free and falsely implicate an innocent person by way of substitution---Medical evidence and post mortem report fully supported the eye-witness version that the deceased died from receiving two injuries from a sharp cutting instrument i.e., a hatchet in the place which he claimed---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C instead of under S.302(b), P.P.C, and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence. Mehmood Ahmad and 3 others v. The State and another 1995 SCMR 127; Muhammad Asif v. The State 2017 SCMR 486; Muhammad Mansha v. The State 2018 SCMR 772; Khadim Hussain v. The State 2010 SCMR 1090; Sajid Mehmood v. The State 2022 SCMR 1882 and Amanullah v. The State and another 2023 SCMR 527 ref. Muhammad Ehsan v. The State 2006 SCMR 1857; Farooq Khan v. The State 2008 SCMR 917; Niaz-ud-Din and another v. The State and another 2011 SCMR 725; Muhammad Ismail v. The State 2017 SCMR 713; Qasim Shahzad and another v. The State 2023 SCMR 117; Muhammad Waris v. The State 2008 SCMR 784 and Muhammaed Ashraf v. State 2021 SCMR 758 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Police witnesses, evidence of---Reliance---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Record showed that there was no ill will or enmity between the police and the appellant and as such they had no reason to falsely implicate the appellant in the case by foisting the hatchet on him---Under said circumstances, the evidence of police witnesses was as good as any other witness---Evidence of the Investigating Officer and other police witnesses was not dented during cross-examination---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C, instead of under S.302(b), P.P.C and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence. Mushtaq Ahmed v. The State 2020 SCMR 474 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence--- Minor contradictions in evidence of witnesses---Not consequential--- Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Record showed that all the prosecution witnesses were consistent in their evidence---If there were some contradictions in their evidence, same were minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant---Circumstances established that the prosecution had proved its case against appellant under S.302(c), P.P.C instead of under S.302(b), P.P.C and as such appellant was convicted and sentenced under S.302(c), P.P.C---Appeal was disposed of with modification in sentence. Zakir Khan v. State 1995 SCMR 1793 and Khadim Hussain v. The State PLD 2010 SC 669 rel. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 302(c) & 504---Qatl-i-amd, intentional insult with intent to provoke breach of peace---Appreciation of evidence---Sentence, quantum of---Scope---Spur of the movent quarrel with no premeditation to kill---Accused was charged for committing murder of the brother of complainant by inflicting hatchet blows---Record showed that there was no prior ill will or enmity between the appellant and the deceased as admitted in the F.I.R and by the eye-witness---Moreover, a sudden quarrel broke out between the appellant and the deceased over the cutting down of a tree which led to the appellant being provoked by the quarrel on the spur of the moment to give two hatchet blows to the head of the deceased without premeditation---Hence present case fell within the purview of S.302(c), P.P.C and the prosecution had proved its case in respect of said offence against the appellant beyond a reasonable doubt---Appellant was convicted and sentenced under S.302(c), P.P.C. accordingly---Appeal was disposed of with modification in sentence. Azmat Ullah v. The State 2014 SCMR 1178 rel. Abid Ali Mirjat for Appellant. None present despite notice for Complainant. Shahid Ahmed Shaikh, Addl: P.G. for the State. Date of hearing: 20th May, 2024. Judgment Muhammad Karim Khan Agha, J .--- Appellant has challenged the Judgment dated 12.01.2017 passed by the learned Ist Additional Sessions Judge Dadu in Sessions Case No.835 of 2014 (Re: The State v. Ghulam Haider), outcome of Crime No.135 of 2014 registered at P.S Johi District Dadu under Sections 302 and 504, P.P.C., whereby he has been convicted and sentenced to suffer R.I for 25 years with fine of Rs.50,000/-, payable to be legal heirs of deceased, and in case of non-payment of fine amount he has to suffer S.I for six months more, however, benefit of Section 382-B Cr.P.C has been extended to him. 2. The brief facts of the case are that on 18.09.2014 at 2030 hours complainant Muhammad Siddique Jamali appeared at P.S Johi and reported that on 13.09.2014 he along with his brother Muhammad Ibrahim alias Kaloo, cousin Ghulam Nabi and maternal cousin Rustam Jamali were working at their lands, when at about 0930 hours accused Ghulam Haider Jamali having hatchet was seen standing under the Babul tree, who disclosed that he would cut the same on which Muhammad Ibrahim alias Kaloo restrained him, which annoyed the accused Ghulam Haider, who caused sharp side hatchet blows to Muhammad Ibrahim Kaloo on head and left side of neck, who fell down while raising cries; that thereafter he (complainant) and PWS gave hakals to accused, who escaped away then they saw that Muhammad Ibrahim Kaloo died at the spot; after necessary legal formalities he lodged the subject FIR. 3. After usual investigation police submitted the challan and the learned trial court after completing necessary formalities framed the charge against the appellant to which he pleaded not guilty and claimed trial. 4. In order to prove its case the prosecution examined six (06) witnesses, who exhibited numerous documents and other items. Then statement of accused under Section 342, Cr.P.C was recorded whereby he denied the allegations levelled against him and claimed his false implication by the complainant party on account of previous enmity. However, he neither examined himself on Oath nor led any evidence in his defense. 5. After hearing the parties and assessing the evidence on record the trial court convicted and sentenced the appellant as mentioned in opening paragraph of this Judgment, hence appellant has preferred captioned appeal. 6. Learned counsel for the appellant has contended that the appellant is innocent and has been falsely implicated in this case on account of a family dispute and hence the FIR was delayed by 6 days which gave the complainant time to cook up a false case against him; that the eye-witnesses did not witness the incident and as such their evidence should be discarded especially as they gave their section 161 eye-witness statements 10 days after the incident; that the prosecution deliberately failed to produce the best evidence in that eye-witness Ghulam Nabi was dropped by the prosecution without explanation; that the hatchet was foisted on the appellant by the police and he did not lead the police to it hidden at his house on his own pointation and as such for any or all of the above reasons the appellant should be acquitted by extending him the benefit of the doubt. In support of his contentions he placed reliance on the cases of Mehmood Ahmad and 3 others v. The State and another [1995 SCMR 127], Muhammad Asif v. The State [2017 SCMR 486] and Muhammad Mansha v. The State [2018 SCMR 772]. 7. On the other hand learned APG fully supported the impugned judgment. In particular, he contended that the delay in lodging the FIR had been fully explained; that the delay in recording the witnesses section 161, Cr.P.C statements had also been explained; that the evidence of the eye-witnesses was trustworthy and confidence inspiring and could be safely relied upon; that the medical evidence supported the ocular evidence and that the murder weapon (hatchet) had been recovered from the appellant on his pointation after his arrest and as such the prosecution had proved its case beyond a reasonable doubt and the appeal be dismissed or in the alternative the appellant be convicted under section 302, P.P.C. In support of his contentions he placed reliance on the cases of Khadim Hussain v. The State [2010 SCMR 1090], Sajid Mehmood v. The State [2022 SCMR 1882] and Amanullah v. The State and another [2023 SCMR 527]. 8. I have heard the learned counsel for the appellant as well as learned APG, have also perused the material available on record and the case law cited at the bar. 9. Based on my reassessment of the evidence of the PW's, especially the medical evidence and blood recovered at the crime scene, I find that the prosecution has proved beyond a reasonable doubt that Muhammed Ibrahim (the deceased) was murdered by an sharp cutting instrument on 13.09.2014 at about 9.30am at the agricultural land of the complainant towards the northern side of the top of Sakhani Shakh near village Babu Khan Jamali, deh Channa Johi. 10. The only question left before me therefore is who murdered the deceased with a sharp cutting instrument at the said time, date and location? 11. After my reassessment of the evidence on record, I find that the prosecution has not proved beyond a reasonable doubt the charge against the appellant under section 302(b), P.P.C. but has proved beyond a reasonable doubt the charge against the appellants under section 302(c), P.P.C. for which I now convict him for the following reasons; (a) That the FIR was lodged after a delay of 5 days. I find that this delay has not been fully explained. Admittedly, the complainant took the dead body to the hospital where it was subject to post mortem and then released to him the same day for burial purposes. Under such circumstances it would have been expected that the FIR would have been lodged the next day or at a maximum after two days yet 3 days have gone unexplained before the FIR was finally lodged. Usually such delay is fatal to the prosecution case however in this case I note that on the same day after two hours the incident was reported to the IO PW 6 Ghulam Abbas as per his evidence which is supported by a duly exhibited entry stating the complainant informed him that the appellant had murdered his brother/the deceased and hence he had gone to the hospital to complete legal formalities. As such based on the particular facts and circumstances of this case where the IO was informed by the complainant about the identity of the murderer within two hours of the incident I do not find the delay in lodging the FIR fatal to the prosecution case although it does put me on caution as only the fact of the murder and who committed it was disclosed at the time of the murder being reported by the police which potentially left time to elaborate on the murder story especially as no eye-witness was mentioned in this early report to the police. (b) I find that the entire prosecution case hinges on whether I believe the evidence of the eye-witnesses whose evidence I shall consider in detail below; (i) Eye-witness PW 1 Muhammed Siddique is the complainant of the case and is related to both the deceased who is his brother and distantly to the accused. According to his evidence on 13.09.2014 he, the deceased, his cousin Rustam and Ghulam Nabi were busy on their land when at 9.30am Ghulam Hyder/accused came their and starting cutting down a tree on their land. His brother/deceased told the accused to stop cutting the tree whereupon the accused became annoyed and abused his brother/deceased and hit him twice over the head with a hatchet before making his escape good. The complainant found that his brother/deceased was dead and took him to hospital and then informed the police. The body was released to him the same day for burial purposes and he lodged the FIR 5 days later despite informing the police about the murder and the identity of the murderer within 2 hours of the incident as mentioned above. This eye-witness was related to the deceased and the accused and no proven enmity has come on record between the complainant and the accused and as such it is settled by now that his evidence cannot simply be discarded and must be considered at its own worth. The complainant knew the accused from before and the incident happened in front of him in broad day light at 9.30am in the morning and hence there is no need for an identification parade. He is not a chance witness as his house was nearby and he was working his land with his brother/deceased. He had no proven enmity or ill will with the accused and as such had no reason to implicate him in a false case. He gave his evidence in a straight forward manner and was not dented during cross-examination. I find his evidence to be reliable, trust worthy and confidence inspiring especially in relation to the identification of the appellant and believe the same and place reliance on it. It is well settled by now that I can convict the accused on the evidence of a sole eye-witness provided that I find his/her evidence to be trust worthy, reliable and confidence inspiring and in this case I have found the evidence of this eye-witness to be trust worthy, reliable and confidence inspiring especially in respect of the correct identification of the appellant and as such I believe the same and place reliance on it. In this respect reliance is placed on the cases of Muhammad Ehsan v. The State (2006 SCMR 1857), Farooq Khan v. The State (2008 SCMR 917), Niaz-ud-Din and another v. The State and another (2011 SCMR 725) Muhammad Ismail v. The State (2017 SCMR 713) and Qasim Shahzad and another v. The State (2023 SCMR 117). His evidence is also of good quality and it is settled by now that it is not the length of the evidence which is of importance but its quality. (ii) Eye-witness PW 2 Rustam. He corroborates the evidence of complainant in all material respects. He also is not a chance witness and had no enmity or ill will to implicate the appellant in a false case. He gave his evidence in a straight forward manner and was not dented during cross-examination. He, however, was not named in the promptly lodged police entry as an eye-witness which entry was made within two hours of the incident. He was only named in the FIR which was lodged 5 days after the incident. He section 161, Cr.P.C statement was recorded 10 days after the incident so it cannot be ruled out that his evidence was based on a case concocted between himself and the appellant after due deliberation and he was a planted witness. It is well settled by now that section 161, Cr.P.C eye-witness statements which are recorded after an unexplained delay of 2 days or more (let alone 10 days) are of no evidentiary value and cannot be relied upon. In this respect reliance is placed on the case of Muhammed Asif (Supra) and as such I have disregarded the evidence of this eye-witness. Having believed the evidence of the sole eye-witness as to the murder of the deceased and the identification of the murderer I turn to consider the corroborative/supportive evidence whilst keeping in view that it was held in the case of Muhammad Waris v. The State (2008 SCMR 784) as under; "Corroboration is only a rule of caution and is not a rule of law and if the eye-witness account is found to be reliable and trust worthy there is hardly any need to look for any corroboration" (c) That it does not appeal to logic, commonsense or reason that a brother would let the real murderer of his real brother get away scot free and falsely implicate an innocent person by way of substitution. In this respect reliance is placed on the case of Muhammed Ashraf v. State (2021 SCMR 758). (d) That the medical evidence and post mortem report fully support the eye-witness/prosecution evidence that the deceased died from receiving two injuries from a sharp cutting instrument in the place which he claims i.e a hatchet. (e) That there was no ill will or enmity between the police and the appellant and as such they had no reason to falsely implicate the appellant in this case. For instance by foisting the hatchet on him. Under these circumstances it is settled by now that the evidence of police witnesses is as good as any other witness. In this respect reliance is placed on the case of Mustaq Ahmed v. The State (2020 SCMR 474). Thus, I believe the evidence of the IO and other police witnesses who were not dented during cross-examination. However I have excluded the hatchet from consideration as it was not put to the appellant in his section 342 Cr.P.C statement as being recovered by him from his house on his own pointation which is a mandatory requirement of the law. (f) That all the PW's are consistent in their evidence and even if there are some contradictions in their evidence I consider these contradictions as minor in nature and not material and certainly not of such materiality so as to effect the prosecution case and the conviction of the appellant. In this respect reliance is placed on the cases of Zakir Khan v. State (1995 SCMR 1793) and Khadim Hussain v. The State (PLD 2010 Supreme Court 669). (g) It is true that there was no independent mashirs however it has now become a judicially recognized fact that in such like cases independent members of the public do not want to involve themselves and as such today the fact that there are no independent mashir's is not of huge significance especially when the eye-witness evidence is believed and the case happens in a small village where nearly every one is related to each other so there are hardly any independent mashirs available. (h) Undoubtedly it is for the prosecution to prove its case against the accused beyond a reasonable doubt but I have also considered the defence case to see if it at all can caste doubt on or dent the prosecution case. The defence case as set out by the appellant in his section 342, Cr.P.C statement is simply false implication by the complainant. The appellant did not give evidence on oath or call a single defence witness in support of his defence case. Thus, in the face of reliable, trust worthy and confidence inspiring eye-witness evidence and other supportive/corroborative evidence discussed above I disbelieve the defence case as an after thought which has not at all dented the prosecution case. (i) However I find from the evidence on record that that there was no prior ill will or enmity between the appellant and the deceased; that as admitted in the FIR and by the PW eye-witnesses referred to above a sudden quarrel broke out between the appellant and the deceased over the cutting down of a tree which lead to the appellant after being provoked by the quarrel on the spur of the moment to give two hatchet blows to the head of the deceased without premeditation which hatchet the appellant had on him and hence I find that the case falls within the purview of S.302(c), P.P.C. and find that the prosecution has proved its case in respect of this offence against the appellant beyond a reasonable doubt and hereby convict him and sentence him for this offence. In this respect reliance is placed on the case of Azmat Ullah v. The State (2014 SCMR 1178) which held as under; "A bare perusal of the FIR. the statements made by the eye-witnesses before the learned trial Court and the findings recorded by the learned courts below clearly shows that there was no background of any ill-will or bitterness between the appellant and his deceased brother and that the incident in issue had erupted all of a sudden without any premeditation whatsoever. The medical evidence shows that the deceased had received one blow of a churri on his chest whereas another blow was received by him on the outer aspect of his left upper arm. The doctor conducting the post-mortem of the dead body had categorically observed that both the injuries found on the dead body of the deceased could be a result of one blow of chhurri. These factors of the case squarely attract Exception 4 contained in the erstwhile provisions of section 300, P.P.C. It has already been held by this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300, P.P.C., now, attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was a result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in a brutal or unusual manner. In these circumstances Exception 4 contained in the erstwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c), P.P.C." (bold added) Further reliance is placed on the cases of Raza and another v. The State (2020 SCMR 1185) and Alamgir v. Gul Zaman and others (2019 SCMR 1415). 12. Based on the above discussion I find that the prosecution has not proved its case against appellant under S.302(b), P.P.C. but the prosecution has proved its case against the appellant under section 302(c), P.P.C. beyond a reasonable doubt and as such the appellant's conviction under section 302(b), P.P.C. is converted in to a conviction under section 302(c), P.P.C. and the appellant is sentenced to time already served in custody without fine and as such he shall be released unless wanted in any other custody case. 13. The appeal is disposed of as modified above. JK/G-1/Sindh Sentence modified.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----Ss. 265-K, 435 & 439---Acquittal of accused at any stage of trial---Scope---Application of the petitioner under S.265-K, Cr.P.C for his acquittal was dismissed by the Trial Court---Validity---Petitioner was arrayed as one of the perpetrators of the offence in the statement under S.164 of Cr.P.C. of the co-accused, recorded before the Magistrate---Petitioner was sent before the Trial Court to face the trial but at the very outset, he moved a petition under S.265-K, Cr.P.C., seeking his acquittal, which was turned down---After dismissal of the petition under S.265-K of Cr.P.C., Trial Court proceeded to frame charge against the petitioner to which he pleaded not guilty and claimed trial---At an initial stage, it would not be apt to make any comment upon worth and credence of statement of the co-accused recorded under S.164, Cr.P.C. as it may cause prejudice to any of the side before the Trial Court---Acquittal of the petitioner in terms of S.265-K, Cr.P.C. in the facts and circumstances of the case, at an early stage, would amount to stifling the proceedings before the Trial Court, which already refused to exercise its powers in favour of the petitioner---Moreover, after dismissal of petition under S.265-K, Cr.P.C., Trial Court proceeded to frame charge against the petitioner---Thus, Trial Court did not commit any illegality or perversity while dismissing the petition under S.265-K, Cr.P.C. moved by the petitioner---Resultantly, petition, being devoid of any merits, was dismissed, in limine. Model Customs Collectorate Islamabad v. Aamir Mumtaz Qureshi 2022 SCMR 1861 and Ammad Yousaf v. The State and another PLD 2024 SC 273 rel. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 249-A & 265-K---Powers to acquit the accused at any stage of the trial---Scope---Powers of acquittal with the court embodied in Ss.249-A & 265-K, Cr.P.C. can be exercised at any stage of the trial, if in the opinion of the Court there is no probability of the accused, being convicted of the offence---However, such powers cannot be exercised in an omnibus fashion. Sardar Abdul Raziq Khan for Petitioner. Order This petition under Section 435 read with Section 439 of The Code of Criminal Procedure, 1898 (hereinafter referred to as Cr.P.C.) stems from order dated 20th November, 2024, whereby learned Judge Anti-Terrorism Court-I, Rawalpindi (hereinafter referred to as A.T.C.) proceeded to dismiss the petition under Section 265-K of Cr.P.C. moved by the petitioner, seeking acquittal, pending trial. 2. Facts forming background of this petition are that a case FIR No.708 dated 09th May, 2023 was registered at Police Station R.A. Bazar, Rawalpindi with regard to an incident relating to attack on General Headquarters, Rawalpindi against some renown leaders of a political party along with other accused. The petitioner was implicated in the case on the basis of statement of co-accused recorded under Section 164 of Cr.P.C. In order to get his acquittal, the petitioner moved a petition under Section 265-C of Cr.P.C. before A.T.C. which was dismissed through the impugned order. 3. Learned counsel for the petitioner submitted that the petitioner has committed no offence. He added that the petitioner has been involved in the case by the prosecution on account of political victimization. Learned counsel submitted that there is no probability of conviction of the petitioner and the trial before the A.T.C. would be mere futile exercise. It is argued with vehemence that the impugned order is not tenable under the law. 4. We have heard learned counsel for the petitioner at considerable length and perused the record. 5. The petitioner was arrayed as one of the perpetrators of the offence in the statement under Section 164 of Cr.P.C. of the co-accused, recorded before the Magistrate. The petitioner was sent before the A.T.C. to face the trial but at the very outset, he moved a petition under Section 265-K of Cr.P.C., seeking his acquittal, which was turned down. We have noticed that after dismissal of the petition under Section 265-K of Cr.P.C., A.T.C. proceeded to frame charge against the petitioner to which he pleaded not guilty and claimed trial. There is no cavil that in terms of Section 265-K of Cr.P.C. a court is vested with the power to acquit an accused at any stage of the case if it considers that there is no probability of his conviction in the offence. 6. In order to adjudge the propriety of the impugned order, it would be apposite to first examine the object and scope of Sections 249-A and 265-K of Cr.P.C. In the recent past, scope of Sections 249-A and 265-K of Cr.P.C. came under discussion before the Supreme Court of Pakistan in the case of Model Customs Collectorate, Islamabad v. Aamir Mumtaz Qureshi (2022 SCMR 1861), wherein Supreme Court of Pakistan held as under:- Under section 249-A, the Magistrate is empowered to acquit any accused on two grounds i.e. charge is groundless and there is no probability of conviction, whereas under section 265-K, Cr.P.C., the court during the trial is empowered to acquit an accused, when there is no probability of conviction indicating that when there is no evidence on the record and even there is no remote probability of conviction and if there is remote probability of conviction then the court is required to record the evidence and then decide the case on evidence bought on record during the trial. From the above sections, it is also clear that application under sections 249-A and 265-K, Cr.P.C. can be filed or taken up for adjudication at any stage of proceeding of trial i.e. even before recording of prosecution evidence or during recording of evidence or when recording of evidence is over. Although there is no bar for an accused to file application under the said sections at any stage of proceeding of the trial, yet the fact and circumstance of the prosecution case will have to be kept in mind and if there is slight probability of conviction then of course, instead of deciding the said application should record the evidence and allow the case to be decided on its merit after appraising the evidence available on record. 7. Yet again, in the case of Ammad Yousaf v. The State and another (PLD 2024 SC 273), the Supreme Court of Pakistan outlined the scope of above noted provisions in the following words:- 3. The Code has granted an inherent jurisdiction by virtue of sections 249-A and 265-K to the trial courts, as the case may be, to acquit any or all accused at any stage of the judicial proceedings for reasons to be recorded, after providing an opportunity of hearing to the parties. The words "any stage" used in both the sections include the stages before or after framing of the charge or after recording of some evidence. Such power can only be exercised where the Court is of the opinion that no charge could be framed because of lack of jurisdiction; because the material available before it is insufficient for the purposes of constituting an offence; that if charge is framed, but the Court considers it to be groundless and to allow the prosecution to continue with the trial would amount to an abuse of process; or that in all circumstances, where there is no probability of conviction of the accused, even after a full- fledged trial. Thus, if circumstances for exercise of inherent powers exist, the Court must use such powers at any stage of the proceedings on its own or upon an application by the accused, provided that an opportunity of hearing is afforded to the parties before making any order. The power assigned to the Courts by the legislature is to avoid the abuse of process of the Court; to protect the integrity of the criminal justice system; to safeguard a person involved in the case from the agony of a purposeless, malicious, and frivolous criminal prosecution; or otherwise, to secure the ends of justice. The exercise of the inherent powers is mandatory in nature, therefore, any departure therefrom would be a violation of the substantive provisions of law and would prejudice the interests of the accused, which is an illegality. If the Court considers that the available material is sufficient to proceed with the trial and refuses to quash the judicial proceedings, it does not preclude the Court from exercising its inherent power subsequently after recording some evidence or surfacing any material for the purpose of quashing the proceedings. However, the exercise of such power by the Courts must be in exceptional circumstances, with great caution and by applying its mind judiciously. 8. After having an overview of the principles noted, hereinabove, it can safely be inferred that the powers of acquittal with the court embodied in Sections 249-A and 265-K of Cr.P.C. can be exercised at any stage of the trial, if in the opinion of the court, there is no probability of the accused, being convicted of the offence but such powers cannot be exercised in an omnibus fashion. The court while proceeding in terms of above provisions of law, first has to assure itself that in all probabilities, there is no chance of conviction of the accused. In simple words, we can say that for the purpose of invoking the powers either under Section 249-A or Section 265-K of Cr.P.C., the approach of the court should neither be inventive nor adventurous, instead facts of the case itself require and persuade the court to exercise such powers so as to save the accused from the agony of protracted and futile trial. The petitioner though has invoked the powers of the A.T.C. by moving a petition under Section 265-K of Cr.P.C. but remained unsuccessful. As we have already noted, hereinabove, that after dismissal of petition under Section 265-K of Cr.P.C., the petitioner has been confronted with charge sheet, we feel no cavil to observe that at this initial stage, it would not be apt for us to make any comment upon worth and credence of statement of the co-accused recorded under Section 164 of Cr.P.C. as it may cause prejudice to any of the side before the trial court. In our considered opinion, acquittal of the petitioner in terms of Section 265-K of Cr.P.C. in the facts and circumstances of the case, at this early stage, would amount to stifle the proceedings before the trial court, who already refused to exercise its powers in favour of the petitioner. Moreover, after dismissal of petition under Section 265-K of Cr.P.C., A.T.C. proceeded to frame charge against the petitioner. 9. We, thus, are of the unanimous view that A.T.C. did not commit any illegality or perversity while dismissing the petition under Section 265-K of Cr.P.C. moved by the petitioner. Resultantly, this petition, being devoid of any merits, is dismissed in limine. 10. Before parting, we may observe that the petitioner would be at liberty to move the A.T.C. at any subsequent stage of the trial even in the process of recording of evidence and if any such fresh application is moved by the petitioner, that shall be proceeded with and decide strictly in accordance with law. JK/R-2/L Petition dismissed.

Summary: (a) Illegal Dispossession Act (XI of 2005)--- ----Ss. 3, 4 & 8---Criminal Procedure Code (V of 1898), S. 345---Illegal dispossession---Compromise---Scope---No doubt the legislature has not provided a specific section/provision under the Illegal Dispossession Act, 2005, for compounding the offense---However, S.9 of the Act ibid provided that unless provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898, shall apply to all the proceedings under the Act ibid---Therefore, the compromise effected between the parties under the Act ibid should be treated as the compromise within the meaning of S.345, Cr.P.C.---Non-compoundability of the particular Section of the law should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it---When the parties had earnestly decided to live in peace and tranquility by forgetting and giving up all their past transactions then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole in particular, it would be prime need of time to acquit the accused from the charge upon the basis of compromise despite the non-compoundability of the S.3 of Illegal Dispossession Act, 2005. (b) Illegal Dispossession Act (XI of 2005)--- ----Ss. 3, 4 & 8---Criminal Procedure Code (V of 1898), S.345---Illegal dispossession---Appreciation of evidence---Compromise---Accused was charged for illegally occupying the residential plot of the complainant---Appellants were convicted under S.3 subsection (2) of the Illegal Dispossession Act, 2005---Joint application for compromise between parties had been filed duly supported with affidavits of accused persons as well as complainant---Counsel for the complainant had also made a statement duly signed by the complainant to the effect that possession of the disputed property had been handed over to complainant, therefore he had no objection to acquittal of the accused persons---Legal question was that said offence was not compoundable nor the legislature had defined it in its Preamble whether it should be treated as compoundable or non-compoundable---However, if the parties, particularly the aggrieved person/victim and both the parties i.e. the complainant and appellant/convict, had compromised against themselves then it should be treated as compromised, though under the statute it had not been defined whether it was compoundable or non-compoundable---In the present case, keeping in view the compromise that had taken place between the parties outside the Court, it was not proper to hold the conviction, especially when the complainant did not want to pursue his case anymore and had raised his no objection for acquittal of the appellants---In the circumstances and in view of the compromise effected between the parties, the appeal was disposed of---Appellants were acquitted of all the charges. Ijaz and another v. Mst. Manadia PLD 2016 Pesh. 26 and The State v. Irfanullah Qazi 2007 MLD 1269 rel. Hakim Ali Mallah for Appellants along with Appellants. Respondent No. 1 in person. Zahoor Shah, Additional P.G. for the State. Date of hearing: 10th July, 2024. Order Adnan-ul-Karim Memon, J .--- The Appellants Papoo, Ghafoor and Karful through this Criminal Appeal under Section 410, Cr. P.C read with section 8 of the Illegal Dispossession Act, 2005 have assailed the judgment dated 18.1.2024 passed by II- Additional Sessions Judge Thatta in Criminal Illegal Dispossession Complaint No.51 of 2022, whereby the learned Judge convicted and sentenced the appellants for an offense under sections 3 and 4 of the Illegal Dispossession Act, 2005 for a period of seven years with a fine of Rs.50,000/- each and they were also directed to compensate the complainant with Rs.1,00,000/- each. 2. The case of the complainant is that on 10.02.2022, the appellants illegally occupied residential plot No.192 measuring 2000 Sq. Feet of complainant Adnan, situated in Deh Gharo, Taluka Mirpur Sakro District Thatta, such a complaint was filed before the trial court which was processed, and an investigation report was called from the SHO concerned, who after conducting the investigation submitted his report. After hearing the parties the trial court took cognizance of the offence and registered the criminal complaint vide order dated 21.07.2023. 3. The charge against them was framed at Ex. 02, to which they pleaded not guilty and claimed trial vide pleas at Ex:02/A to Exh.02/C respectively. 4. To prove the case, the complainant Adnan examined himself at Ex:03 and produced a photocopy of Form-II at Exh.03/A and photocopy of the sketch at Exh.03/B. PW-02 Muhammad Ali at Exh.04 and PW-03 Ali at Exh.05. 5. The statement of accused under section 342, Cr.P.C were recorded at Exh.07 to Exh.09 respectively they denied the allegations of the complainant. The accused neither examined themselves on oath Under Section 340(2), Cr.P.C. nor produced any witness in their defence. 6. The trial court after hearing the parties convicted and sentenced the appellants as discussed in the preceding paragraph. 7. Today, a joint application for compromise between appellants and complainant/respondent has been filed by the respective counsel for the parties duly supported with affidavits of appellants as well as complainant/respondent, both parties are present in court. The counsel for the respondent/complainant has also made a statement duly signed by the respondent/complainant to the effect that possession of the disputed property has been handed over to him and, therefore, he has no objection to acquittal of the appellants; even if the appellants may be acquitted of all the charges including the fine amount. 8. Learned Additional PG has no objection to the compromise between the parties on the aforesaid analogy. 9. I have heard learned counsel for parties and have gone through the material available on record. 10. Learned counsel for the appellants submits that though the specific provision for compounding offense is not embodied under the Illegal Dispossession Act, 2005; however, this being a Criminal Complaint is governed by the Scheme of Criminal Procedure Code of 1898, therefore, Section 345, Cr.P.C. is applicable and presumption would be that the offense related to the property which being of civil nature is compoundable; that the offenses in terms of Illegal Dispossession Act are compoundable. In support of his contention, learned counsel for the appellant has referred to the case reported as ljaz and another v. Mst. Manadia (PLD 2016 Peshawar 26) and Suo-Motu case (re-the State v. Irfanullah Qazi (2007 MLD 1269). He further submits that although the respondent complainant is an aggrieved person the property dispute has been resolved as the possession of the same has been handed over to him, therefore, he (respondent/complainant) does not wish to linger on the proceedings; hence, the appeal may be disposed of by acquitting the appellants based on compromise. 11. On the other hand, the advocate representing the respondent/complainant states that after the conviction of the appellants, the parties have entered into compromise as a result whereof, the joint statement was made on behalf of the appellants and complainant before this Court. Resultantly, their sentence was suspended and the appellants were enlarged on bail, and maintain law and order situation in the area and to live peacefully by maintaining peace and tranquility, they have filed a joint application duly supported by their respective affidavits, hence, no loss or injury would be caused to either side if they may be allowed to act upon the compromise effected between them (parties). 12. No doubt the legislature has not provided a specific section/provision under the Illegal Dispossession Act, 2005 for compounding the offense even if it is lacking whether it will be treated as a compoundable or non-compoundable offense. However, Section 9 of the Act ibid provides that unless provided in the Illegal Dispossession Act, 2005, the provisions contained under the scheme of Criminal Procedure Code, 1898 shall apply to all the proceedings under the Act ibid. Therefore, I am of the clear view that the compromise effected between the parties under the Act ibid should be treated as the compromise within the meaning of Section 345, Cr.P.C. It is an admitted fact that both parties have amicably settled all their differences and have resolved to lead the rest of their lives in peace and tranquility. It is settled law that the non-compoundability of the particular Section of the law should not be read in isolation but it should be read in the background of each criminal case and beneficial interpretation should be given to it; more particularly, when the parties have earnestly decided to live in peace and tranquility by forgetting and giving up all their past transactions then for the sake of their welfare in general and betterment of socio-economic conditions of the society as a whole in particular, it will be prime need of time to acquit the appellant from the charge of instant case upon the basis of compromise despite the non compoundability of the Section 3 of Illegal Dispossession Act, 2005, if it is so. 13. In the cases of Ijaz and another (Supra) and the State v. Irfanullah Qazi (Supra), the offenses related to Special Law/ATA, etc were not compoundable; however, due to the compromise effected between the parties, same was recognized by the Peshawar High Court as well as the Bench of this Court in the case of Abdul Wali and Abdul Wahab (Supra), the compromise was effected between the parties during the pendency of the cases before the trial Court in terms of Sections 3/4 of the Illegal Dispossession Act, 2005 and subsequently was accepted; however, after the acquittal of the accused therein, some of the parties had challenged the validity of compromise effected between them before trial Court and wanted to reopen the case on certain issues but the Benches of Lahore as well Peshawar High Court had not disturbed the findings of the Courts below on account of compromise and thus recognized the compromise took place between the parties before trial Court. 14. The appellants were convicted under Section 3 subsection (2) of the Illegal Dispossession Act, 2005. The legal question is that said offence is not compoundable nor the legislature has defined it in its preamble whether it should be treated as compoundable or non-compoundable. I am of the firm view that if the parties, particularly the aggrieved person/victim and both the parties i.e the complainant and appellant/convict have compromised against themselves then it should be treated as compromised; though under the statute it has not been defined whether it is compoundable or non-compoundable. In the present case, keeping in view the compromise that has taken place between the parties outside the Court, it is not proper to hold the conviction, especially when the complainant does not want to pursue his case anymore and has raised his no objection for acquittal of the appellants. 15. In the circumstances and in view of the compromise effected between the parties, the instant appeal is disposed of. The appellants present on bail are hereby acquitted of all the charges. Their bail bonds are canceled and the surety furnished by them is also hereby discharged and returned to the surety by proper verification. 16. The appeal stands disposed of in the above terms. JK/P-13/Sindh Order accordingly.

Summary: Islamic law--- ----Islamic law---Inheritance---Issueless owners---Principle of Return (Radd)---Applicability---Petitioners assailed mutations of inheritance of their predecessors-in-interest who died issueless and respondents received their share on the principle of Return (Radd)--- Validity---On death of a Muslim, his estate devolves upon his heirs [sharers, residuary and/or distant kindred]---If deceased has no residuary, then under the principle termed as Return (Radd) such share returns to the sharers---Predecessors-in-interest of parties died issueless and left no male sharer alive---Respondents were sons of paternal uncle who inherited from the respective estates of deceased owners after satisfaction of shares of sharers---Revenue hierarchy rightly granted due shares to respondents from the estate of deceased owners---High Court declined to interfere in mutations of inheritance, as petitioners were not able to point out any illegality or material irregularity, nor there was any jurisdictional defect---Constitutional petition was dismissed, in circumstances. Verse No. 33 Surah-i-Nisa of Holy Quran and Para 61 of Muhammadan Law by D.F. Mullah ref. Mst. Shah Jahan Begum through Legal Heirs v. Zafar Ahmed and others PLD 2018 Lah. 426 rel. Irshad Ahmad Sialvi for Petitioners. Muhammad Naveed Ayyaz Qureshi and Muhammad Rafiq for Respondent No. 2. Ch. Tanveer Akhtar, Additional Advocate General for Respondents Nos. 6 and 7. Date of hearing: 9th September, 2024. Judgment Ch. Muhammad Iqbal, J .---Through this single judgment, I intend to decide the titled Writ Petition [No. 80553/2023] as well as Writ Petition No. 80520/2023, Writ Petition No.80539/2023 and Writ Petition No.80547/2023 as common questions of law and facts are involved in these cases. Writ Petition No.80553/2023 2. Brief facts of the case as contended by learned counsel for the petitioner are that Muhammad Asghar was owner of different agricultural and residential properties in Districts Khushab, Okara, Bhakkar, Sahiwal and Sargodha including land measuring 290 Kanal 10 Marla situated in Chak No.111/7-R Tehsil Chichawatni District Sahiwal. On 09.05.2016, Muhammad Asghar died issueless leaving behind a widow [Fariha Aalia] and two sisters [Kaniz Haider and Nasreen Akhtar] as his legal heirs and his inheritance mutation No.4659 dated 06.06.2018 of the aforesaid land was sanctioned in favour of his widow and two sisters. Respondent No.3/Muhammad Nazar/paternal cousin of Muhammad Asghar challenged the sanctioning of above mutation on the ground that being residuary he would also inherit from the estate of the deceased but the Assistant Commissioner, Chichawatni dismissed the same vide order dated 29.06.2021. He assailed the said order through revision petition before Additional Commissioner (Revenue), Sahiwal Division, Sahiwal who accepted the petition vide order dated 03.02.2023 and set aside the order dated 29.06.2021 of the Assistant Commissioner. The petitioners assailed the order dated 03.02.2023 through revision petition (ROR) before the Member, Board of Revenue. Writ Petition No.80520/2023 Through this petition, the petitioners, Kaniz Haider etc. have called in question the inheritance mutation No.5047 dated 13.07.2021 of Muhammad Asghar deceased, whereby the Assistant Director Land Record, Chichawatni also granted share from estate of the deceased to respondents Nos.2 to 4/paternal cousins as residuary. The petitioners challenged the said order/mutation through an appeal which was allowed by the Assistant Commissioner, Chichawatni vide order dated 19.07.2022. The respondents challenged the said order through revision petition which was accepted by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal vide order dated 03.02.2023. The petitioners assailed the said order through revision petition before the Member, Board of Revenue. Writ Petition No.80539/2023 Mst. Nasreen Akhtar real sister of the petitioner/Mst. Kaniz Haider died issueless. The Assistant Director Land Record, Chichawatni while incorporating the inheritance mutation [No.5060 dated 25.08.2021] of Mst. Nasreen Akhtar deceased, also granted share from her estate to respondents Nos.2 to 4/paternal cousins as residuary. The petitioner [Kaniz Haider] challenged the said order/mutation through an appeal which was allowed by the Assistant Commissioner, Chichawatni vide order dated 22.03.2022. The respondents challenged the said order through an appeal which was accepted by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal vide order dated 03.02.2023. The petitioners assailed the said order through revision petition before the Member, Board of Revenue. Writ Petition No.80547/2023 Mst. Nasreen Akhtar real sister of the petitioner/Mst. Kaniz Haider died issueless. The Assistant Director Land Record, Renala Khurd while incorporating the inheritance mutation No.1003 dated 14.05.2022 of Mst. Nasreen Akhtar deceased, also granted share from her estate to respondents/paternal cousins as residuary. The petitioner [Kaniz Haider] challenged the said order/mutation through an appeal which was allowed by the Assistant Commissioner, Renala Khurd vide order dated 08.04.2023. The respondents challenged the said order through an appeal which was accepted by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal vide order dated 05.05.2023. The petitioners assailed the said order through revision petition before the Member, Board of Revenue. The issues of sanctioning of inheritance mutation of issueless Muhammad Asghar and Nasreen Akhter (sibling) were consolidated at the level of higher forum of revenue hierarchy and the Member, Board of Revenue, Punjab vide consolidated order dated 08.11.2023 dismissed the aforesaid four revision petitions of petitioners. Hence, these writ petitions. 3. Arguments heard. Record perused. 4. The relationship between the parties is admitted. Nazar Muhammad and Umar Farooq sons of Muhammad Ayub son of Muhammad Sher were real paternal cousins of deceased issuless Muhammad Asghar and Mst. Nasreen Akhtar (siblings) progeny of Muhammad Shafi son of Muhammad Sher. The controversy among the parties to the lis is centered around "as to whether the real paternal cousins of issueless deceased Muhammad Asghar and Mst. Nasreen Akhtar would inherit from their estate as residuary or otherwise? 5. A definite and elaborate resolve is provided in this regard in Holy Quran and Sunnah and law. Islam, being the complete code of life, provide elaborate principles regarding inheritance of a deceased Muslim and the shares of the heirs of a deceased have been conclusively determined in Holy Quran and Sunnah. With regard to the distribution of estate left by a deceased Muslim, Allah Ta'la has ordered in Verse No.33 Surah-i-Nissa of Holy Quran, Urdu vernacular whereof is as under: Further, Allah Ta'la has elaborately described this issue in Surah tul Nisa, Ayat Nos.11, 12 and 176, the Urdu translation of the said verses whereof by Molana Fateh Muhammad Jalandhri as well as interpretation/Tafseer made by Pir Muhammad Karam Shah in Tafseer Zia-ul-Quran, published by Zia-ul-Quran Publications, Lahore (comprising relevant pages 322 to 327, 428 and 429) are reproduced as under:- (Emphasis supplied) In case of death of a Muslim, his/her heirs have been prescribed in Para 61 of Muhammadan Law by F. D. Mullah which is as under: "61. Classes of heirs- There are three classes of heirs, namely, (1) Sharers, (2) Residuaries, and (3) Distant Kindred: (1) "Sharers" are those who are entitled to a prescribed share, of the inheritance; (2) "Residuaries" are those who take no prescribed share, but succeed to the "residue" after the claim of the sharers are satisfied; (3) "Distant Kindred" are all those relations by blood who are neither Sharers not Residuaries." A "Sharer" is a person who directly inherits from the legacy of the deceased. The "Residuary" is a person who does not directly inherit share but succeeds to get share after the claim of sharers is satisfied whereas a "Distant Kindard" comes into field when the deceased has neither sharers nor residuaries. Regarding classes of heirs, guidance is taken from Hadith No.6238 of Sahi Bukhari, Vol.III at page 679 [Zia-ul-Quran Publications, Lahore, Edition: September, 2014], translation whereof is reproduced as under: Another guidance is taken from Hadith No.2018 of Sunan Tirmizi Vol.II at page 92 [Zia-ul-Quran Publications, Lahore, Edition: May, 2013]; its translation whereof is as under: (emphasis supplied) 6. As per Article 2 of the Constitution of the Islamic Republic of Pakistan, 1973 [hereinafter referred to as "Constitution"], Islam is the state religion of Pakistan and as per Article 2A Objectives Resolution, the Muslims in the individual and collective spheres shall be enabled to order their lives in accordance with the teachings of Islam as set-out in the Holy Quran and Sunnah. As per Article 227 of the Constitution, the principles of Holy Quran and Sunnah are admitted as supreme law of this country and all provisions, rules, regulations are to be legislated and framed within the precincts of Quranic principles. For reference, Article 227 of the Constitution is reproduced as under:- 227. Provisions relating to the Holy Quran and Sunnah.-(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions. Explanation.-In the application of this clause to the personal law of any Muslim sect, the expression "Quran and Sunnah" shall mean the Quran and Sunnah as interpreted by that sect. (2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part. (3) Nothing in this Part shall affect the personal laws of non-Muslim citizens or their status as citizens. 7. Thus, from the above, it is established that on death of a Muslim, his estate will be devolved upon his heirs [sharers, residuaries and/or distant kindred]. In case a deceased has no residuary, then under the principle termed as Return (Radd) the said share will be returned to the sharers, as defined in Para No.66 of the Muhammadan Law as under: "66. Return (Radd.)-If there is a residue left after satisfying the claims of Sharers, but there is no Residuary, the residue revert to the Sharers in proportion to their shares. This right of reverter is technically called "Return" or Radd. Exception.-Neither the husband nor the wife is entitled to the Return so long as there is any other heir, whether he be a Sharer of a Distant Kinsman. But if there be no other heir, the residue will go to the husband or the wife, as the case may be, by Return." This Court has elaborately discussed this issue in a judgment titled as Mst. Shah Jahan Begum through Legal Heirs v. Zafar Ahmed and others (PLD 2018 Lahore 426). Relevant part whereof is reproduced as under:- "In the present case, the propositus died without leaving child, child of a son, father, grandfather, brother or consanguine brother, hence the petitioner as a sister had to inherit being sharer. Although there might be eventuality when status of a sister being sharer may also be converted into residuary, but condition precedent for that capacity would be either she has a brother or in his default there be (a) a daughter or daughters or (b) son's daughters h.1.s. or even if there be (c) one daughter and a son's daughter or daughter h.1.s., but in the case in hand, no such situation arose and she as well as sons of predeceased brother were rightly awarded shares as per dictates of the Holy Quran, Sunnah and Muhammadan Law (supra), hence neither she was entitled to take the residue nor the ultimate conclusion of the Revenue Forum and that of two Courts below was erroneous, which being unexceptionable requires no interference by this Court in the exercise of revisional jurisdiction." At the time of death of Muhammad Asghar, his widow (Fareeha Alia), his two sisters (Kaniz Haider and Nasrin Akhtar) were alive whereas his one brother namely, Muhammad Akbar had already passed away. Respondents Nos.3 and 4/Muhammad Nazar and Umar Farooq both sons of Muhammad Ayub, being paternal cousins of Muhammad Asghar claimed their share from the estate left by Muhammad Asghar being residuary on the ground that no male sharer of Muhammad Asghar was alive at the time of his death. Thereafter, Mst. Nasreen Akhtar, sister of Muhammad Asghar, also died issueless leaving behind the petitioner/Mst. Kaniz Haider/real sister as her heir and the respondents also claimed share from her inheritance being residuary. The Islamic principles are very clear on the instant issue that in case of death of an issueless Muslim with no male sharer alive, his/her sister(s) would inherit as Sharer whereas the residue would be devolved upon available Residuaries. In the instant case, as Muhammad Asghar and Nasreen Akhtar had died issueless and left no male sharer alive as such the respondents being paternal uncle's sons would inherit from the respective estates of Muhammad Asghar and Nasreen Akhtar after satisfaction of the shares of the sharers. Thus, the revenue hierarchy rightly granted due share to respondents Nos.3 and 4 from the estate of Muhammad Asghar and Mst. Nasreen Akhtar. 8. Learned counsel for the petitioners has not been able to point out any illegality or material irregularity in the impugned orders passed by the Additional Commissioner (Revenue), Sahiwal Division, Sahiwal and Member, Board of Revenue, Punjab and has also not identified any jurisdictional defect calling for interference by this Court. 9. Resultantly, all these writ petitions being devoid of any merits are hereby dismissed. MH/K-1/L Petitions dismissed.

Summary: Contract Act (IX of 1872)--- ----S.11---Civil Procedure Code (V of 1908), S.115 & O.XXXII---Persons competent to contract---Minors---Maintainability of suit without appointment of guardian-Execution of agreement to sell by a person/father on behalf of the minors without having been appointed as guardian of the minors by the court of competent jurisdiction---Legality---Minor is disqualified from entering into any contract for disposal of his property without appointment of a guardian by a Court of competent jurisdiction and if any such contract is entered the said transaction is void ab initio and does not have any binding force---Law debars filing of suits against the minors without next friend or guardian appointed by the court---Thus, suit of petitioners in the present case was not maintainable---Courts below had rightly adjudicated upon the matter in hand and had not committed any illegality or irregularity warranting interference by High Court in exercise of its revisional jurisdiction under S.115, C.P.C.---Civil Revision was dismissed in limine accordingly. Abdul Ghani and others v. Mst. Yasmeen Khan and others 2011 SCMR 837; Yar Muhammad Khan and others v. Sajjad Abbas and others 2021 SCMR 1401; Muhammad Sarwar and others v. Hashmal Khan and others PLD 2022 SC 13; Mst. Zarsheda v. Nobat Khan PlD 2022 SC 21 and Salamat Ali and others v. Muhammad Din and others PLD 2022 SC 353 rel. Mian Muhammad Habib for the Petitioners. Order Shahid Bilal Hassan, J .--- Precisely, the petitioners instituted a suit for specific performance on the basis of purported agreements to sell dated 28.10.2010 and 10.01.2011 against the respondents Nos.1 to 3/defendants with regards to the suit property. On the other hand, the respondents Nos.1 and 2 instituted suit for possession with permanent injunction and recovery of rent against the present petitioners and respondent No.4. Both the parties contested the suit filed against them by submitting written statements. The learned trial Court consolidated both the suits and out of the divergent pleadings of the parties the consolidated issues were framed. Both the parties adduced their oral as well as documentary evidence. On conclusion of trial, the learned trial Court dismissed suit for specific performance of the petitioners and decreed suit for possession of the respondents Nos.1 and 2 vide impugned consolidated judgment and decree dated 18.06.2022. The petitioners being aggrieved preferred two separate appeals. The learned appellate Court vide impugned consolidated judgment and decree dated 24.05.2023 dismissed both the appeals; hence, the instant revision petition. 2. Heard. 3. There is no denial to the fact that disputed property is owned by the respondents Nos.1 and 2 who at the relevant time of purported agreements to sell were minors and respondent No.4 though was father but was not appointed as guardian of the said minors and no permission was accorded to him to sell out the property of the minors or enter into any kind of agreement on behalf of the minors by the Court of competent jurisdiction; therefore, he was not competent to enter into alleged agreements to sell on behalf of the minors. Section 11 of the Contract Act, 1872 enunciates that who may enter into contract, which reads:- "Every person is competent to contract who is of the age of majority according to the law to which he is subject, and who is of sound mind and is not disqualified from contracting by any law to which he is subject." Meaning thereby, the minor disqualifies from entering into any contract, for disposal of his property, without appointment of a guardian by a Court of competent jurisdiction and if any such contract is entered the said transaction is void ab initio and does not have any binding force. In this regard reliance has rightly been placed on Abdul Ghani and others v. Mst. Yasmeen Khan and others (2011 SCMR 837), wherein the Apex Court of country invariably held that:- 'It is well settled by now that "any contract or transaction entered into with minor was void ab initio for minor could not give consent to create any binding contract. Principle of estoppel was also inapplicable in minor's case. Transaction reflected in specified mutation sanctioned during minority of minor female was void ab initio for being unauthorized, therefore, on basis thereof vendees named in such mutation did not acquire any right or title in land in question.' In the said judgment it has further been held:- 'The provisions as enumerated in section 11 of the Contract Act, 1872 would make minor incompetent to enter into any contract, therefore, contract by minor was void ab initio and not merely voidable. Such contract would have no existence in the eye of law and was incapable of satisfaction or confirmation. Law forbids enforcement of such transaction even if minor were to ratify the same after attaining majority.' The said ratio has been reiterated by the Hon'ble Supreme Court in judgment reported as Yar Muhammad Khan and others v. Sajjad Abbas and others (2021 SCMR 1401) and it has further been held that:- 'To protect minors and their interests a minor cannot enter into an agreement nor grant a power of attorney to do so. Section 11 of the Contract Act, 1872 explicitly stipulates that only those who are 'of the age of majority according to the law to which he is subject' are 'competent to contract.; the law is the Majority Act, 1875 section 3 whereof stipulates eighteen years as the age of majority.' In this view of the matter, when the alleged agreements were entered into the respondents Nos.1 and 2 were minors and the respondent No.4 was not competent to enter into any such agreement on their behalf; therefore, the said agreements are void ab initio and on the basis of the same, no suit can be instituted as no right or title has been created in favour of the petitioners. 4. In addition to the above, the petitioners instituted the suit against the minors/respondents Nos.1 and 2 by mentioning the name of Muhammad Bashir being guardian but the said Muhammad Bashir was not arrayed as party despite the fact that purportedly he entered into agreements to sell in question with the petitioners on behalf of the minors and even the said person was not produced as witness by the petitioners so as to establish the factum of entering into alleged agreements to sell. Therefore, the learned appellate Court has rightly recorded findings that law debars filing of suits against the minors without next friend or guardian appointed by the Court and in the situation even suit of the plaintiffs/petitioners is not maintainable. 5. Apart from the above, the witnesses produced by the petitioners have not disclosed and deposed that time, day and mode of payment along with description of the amount as mentioned in the disputed agreements to sell (Ex.P1) and (Ex.P3). 6. Pursuant to above discussion, learned Courts below have rightly adjudicated upon the matter in hand and have not committed any illegality or irregularity warranting interference by this Court in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908. In judgments reported as Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 Supreme Court 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 SC 21), the Apex Court of the country has candidly held:- 'There is a difference between the misreading, non-reading and misappreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law.' However, in the present case, as observed above, the learned Courts below has appreciated and construed law on the subject in a judicious manner and have not committed any error, rather the order and judgment are upto the dexterity; thus, the same are upheld. Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLD 2022 SC 353), it has invariably been held that:- 'Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.' 7. As a sequel of above discussion and while placing reliance on the judgments supra, the instant civil revision being devoid of any force and substance stand dismissed in limine. SA/M-118/L Revision dismissed.