Summary: (a) Martial Law Orders (C.M.L.A-'s) No.4- -Paras. 2 & -Paras. 2 & 3 of M.L.O. No.4 conferred jurisdiction on the Military Court to try and punish any person for offences under any Martial Law Order or under any other laws mentioned in cl. (a) thereof notwithstanding that the offence was triable exclusively by a Special Court or Tribunal or Special Judge or any other Authority or body. [p. 2271 A (b) Martial Law Orders (C.M.LA's) Nos. 4 & 5- - Martial Law Regulation (C.M.LA's) No.3 - Penal Code (XLV of 1860), Ss.307, 326 354, 452, 148 & 149 - West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16 - Constitution of Pakistan (1973), Art. 199-Accused charged with offences under M.L.R. No.3 (C.M.L.A.'s), Ss. 307, 326, 354, 452, 148 & 149, P.P.C. and S.16, Maintenance of Public Order Ordinance, 1960 - Imposition of fine by Summary Military Court - Validity - Although imposition of fine was not contemplated by M.L.R. No.3 but the fine could validly be imposed by the Summary Military Court under various provisions o P.P.C. and Maintenance of Public Order Ordinance, 1960 and no exception could be taken to that. [p. 2271 B & C (c) Martial Law Order (C.M.L.A.'s) NoA & 5- - Martial Law Regulation (C.M.L.A.'s) No.3 - Penal Code (XLV of 1860), Ss. 307,326,354, 452,148 & 149 - West Pakistan Maintenance of Public Order Ordinance (XXXI of 1960), S. 16 - Constitution of Pakistan (1973), Arts. 199, 4, 23, 24 & 270-A - Constitutional petition-Order of confiscation of property of convicts by Summary Military Court - Convicts were tried under Martial Law Regulation (C.M.L.A.'s) No.3; Ss.307,326,354,452,148 & 149, P.P.C. and S. 16 of Maintenance of Public Order Ordinance 1960 - Summary Military Court having no jurisdiction to order confiscation of property of convicts, order of confiscation was coram non judice and confiscation of property violated Arts. 4, 23 & 24 of the Constitution of Pakistan (1973) and incapable of conferring any right on the Government on the basis of mutation sanctioned in its favour - Confiscation of property could not be treated "as an act done or purported to have been made in good faith" within the meaning of Art. 270-A (2) (4) (5)-Property being still intact and having not been sold away by the Provincial Government was capable of being restored to the petitioners - High Court while giving effect to the Fundamental Rights of petitioners ordered restoration of confiscated property to them alongwith the benefit derived by the Provincial Government during the period the property was enjoyed by it. [pp. 229, 231, 2321 D, F, G & H Federation of Pakistan and another v. Malik Ghulani Mustafa Khar PLD 1989 SC 26; State v. Zia-ur-Rehman PLD 1973 SC 49; Federation of Pakistan v. Saeed Ahmed Khan PLD 1974 SC 151; Inamur Rehman v Federation of Pakistan and others 1992 SCMR 563; Abul A'la Maudoodi v Government of Pakistan PLD 1964 SC 673 and Benazir Bhutto v. Federatio of Pakistan PLD 1988 SC 416 reE (d) Constitution of Pakistan (1973)- - Art. 270-A - Validation covered under Art. 270-A, Constitution of Pakistan - Extent. [p. 2311 E Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26 ref. Ch. Ijaz Ahmad, Dy. Attorney-General for the Federation.

Summary: Penal Code (RLV of 1860)- -S. 304, Part I, Exception 4 to 5.300-Constitution of Pakistan (1973), Art. 185(3)-Petitioners charged under S.302/326/323/34, P.P.C. acquitted by Trial Court-High Court re-appraised evidence and convicted them under Ss. 304, Part I & 326, P. P. C.-Leave to appeal-Case of sudden fight and prosecution having made out case against petitioners falling under Exception 4 to S.300, P. P. C., their convictions and sentences, held, was proper and not open to interference-Leave to appeal reused.

Summary: (a) Penal Code (XLV of 1860)- -S.365 read with S.149-Abduction-Accused party allegedly tying the hands of two prosecution witnesses at their back and leading them to Dera of accused where they were subjected to beating-Prosecution evidence showing that the distance between the place where encounter took place and the Dera of accused was only one acre-Distance between the two points being so short, it could not reasonably be said that accused party abducted the complainant party-Charge of abduction, held, was not thus established-Accused acquitted of the delict under S.T65/149, P.P.C. (b) Penal Code (XLV of 1860)- -Ss.323, 325 & 326 read with Ss.34, 149 & 544-A-Grievous hurt-Rioting-Accused gouging the eyes of one of complainant party (prosecution witness) with the assistance of three co-accused and depriving him of his eye-sight completely-Prosecution witnesses contradicting each other on very vital point as to brutal and inhuman act of accused having been facilitated by three co-accused-No evidence that the three co-accused knew that accused would give severe beating to the victim and would resort to inflicting grievous injuries on his eyes because accused was not armed with any deadly weapon and there was nothing to show that they had committed the offence in prosecution of their common object with accused-Infliction of injuries on the eyes of victim as a result of which he was deprived of eye-sight was the act of accused alone-Accused having committed the offence with a piece of brick and he not being armed with any dangerous weapon his conviction under 5.326, P.P.C., held, was not warranted but his case was covered by provisions of S.325, P.P. C.-Conviction of accused altered from one under S.326, P.P.C. to S.325, P.P.C. and accused sentenced to seven years' R.I.-Accused also sentenced to fine of Rs.25,000 to be paid to victim as compensation under S.544-A, Cr.P. C.-Conviction and sentence of co-accused set aside. (c) Penal Code (XLV of 1860)- -S.323 read with Ss.34 & 148-Hurt-Accused inflicting Sota blows to prosecution witness in furtherance of common intention with two co-accused-Charge having been established against four accused, their conviction and sentence under 5.323/34, P.P.C. maintained and no overt act having been attributed to them, two other co-accused acquitted-Offence under S.148, P.P.C. not having been made out, all accused acquitted of the charge of rioting. Criminal Appeal No.186 of 1987 Criminal Appeal No.187 of 1987

Summary: Penal Code (XLV of 1860)- -Ss.302/34, 324 & 326-Criminal Procedure Code (V of 1898), Ss.544-A & 545-Leave to appeal-Accused charged under 5.302/34, P.P.C.-Trial Court convicting and sentencing accused under Ss.324 & 326, P. P. C. but High Court, on appeal reducing their sentences to the period already undergone by them-Contentions that since injuries had been deliberately caused to deceased by accused with intention to murder him, they should not have been convicted and sentenced under Ss.324 & 326, P. P.C. and that no mandatory fine under S.544-A, Cr.P. C. had been imposed-Leave to appeal granted to consider enhancement of sentence under 5.326, P.P.C. and also for imposition of fine under Ss.544-A & 545, Cr.P. C.

Summary: Penal Code (XLV of 1860)- -Ss.302 & 326 read with Ss.148 & 149-Constitution of Pakistan (1973), Art. 185(3)-Accused convicted and sentenced to death-High Court, on appeal, finding that prosecution had established its case against accused beyond any shadow of doubt acquitting them of the charge of murder and instead finding them guilty under S.326, P.P.C. and awarding 10 years' R.I. to each-Leave to appeal granted to examine question whether in facts and circumstances of the case, alteration of sentence from death to 10 years' R.I. was not justified in law.

Summary: Penal Code (XLV of 1860)- -Ss. 302 & 326-Constitution of Pakistan (1973), Art. 185(3)-Sentence, enhancement of-Imposition of fine and payment of compensation-Accused convicted under S. 302, P.P.C. and sentenced to death by Trial Court-High Court, keeping in view location and nature of injury, altered conviction to one under S. 326, P.P.C. and reduced sentence-Order impugned-Plea that even if there was some justification in altering conviction and sentence, Appellate Court should have imposed fine and ordered accused to pay compensation, not entertained-No case having been made out for interference, leave to appeal refused.

Summary: (a) Constitution of Pakistan (1973)- - -Art. 185(3)-Penal Code (XLV of 1860), Ss. 302 & 326-Leave to appeal granted to two brothers, one convicted under S. 302, P.P.C. and sentenced to life imprisonment and other convicted under S. 326, P.P.C. and sentenced to ten years' R.I. "to examine evidence in order to avoid any miscarriage of justice". (b) Penal Code (XLV of 1860)- - S. 302-Appraisal of evidence-None of eye-witnesses had stated about injuries caused to accused though these were noticed by police officer immediately after occurrence when he arrested accused from inside Kotha (place of occurrence)-Danda attributed to accused and Kahi attributed to complainant were in act recovered by police during investigation of cross-case-Nature of injury on person of deceased supported version of accused-Fact that accused had a counter-version charging deceased and complainant of attack on him strengthened by circumstances-Held, suppression of injuries of accused by all eye witnesses; his counter-version getting support from recoveries of Kahi and Danda from house of complainant made prosecution case of one-sided attack highly doubtful and lent credence to plea of accused-Accused acquitted in circumstances. Bashirullah Khan, Asstt. A.-G. N.-W.F.P. for the State.

Summary: Constitution of Pakistan (1973)- - Art. 185(3) read with Criminal Procedure Code (V of 1898), S. 426(1-A) and Penal Code (XLV of 1860), Ss. 304 & 326-Conviction of accused-appellant by High Court under Ss. 326 & 304, P. P. C.-Leave to appeal against conviction-Granted by Supreme Court to consider contentions that no independent witnesses were examined and that recoveries which were made four days after occurrence cannot corroborate statements of eye-witnesses-Bail also granted to accused-petitioners.- [Leave to appeal-Recovery].

Summary: Penal Code (XLV of 1860), S. 300, Exception 2-Accused causing death, acting in private defence of property (land)-Intention to kill cannot be attributed to accused though knowledge that he was likely to kill could be so attributed-Charge under S. 302, P. P. C. but conviction under S. 326 P. P. C.-In the absence of appeal by Crown, conviction under S. 326 maintained and sentence enhanced under S. 439 Cr. P. C. The accused was tried on a charge under section 302 P. P. C. but on a plea of private defence of property (possession of land) was convicted under section 326 P. P. C. The Crown did not appeal from order of acquittal under section 302 P. P. C. Held, (on appeal by the accused) in view of the decision of the Federal Court in Safdar Ali's case (P L D 1953 F. C. 93) although the injury caused to the deceased by the accused was sufficient in the ordinary course of nature to lead to death and was, therefore, one which could have entailed his conviction under Part I of section 304 P. P. C., no intention to kill or to cause a necessarily fatal injury could be attributed to him and the accused could only have been convicted under Part II of section 304 P. P. C. At least the knowledge could be attributed to him that he was likely to kill the deceased with the blow that he delivered in his heart region. Safdar Ali's case P L D 1953 F C 93 ref. However an appellate Court could not convert a conviction of a lesser offence into one of a higher offence in appeal and then enhance the sentence under its revisional powers without there being an appeal against the acquittal by the Crown under section 417 Cr. P. C. Shera v. Crown P L D 1954 F C 141 ref. Conviction under section 326 P. P. C. was therefore maintained and sentence enhanced under section 439 Cr. P. C.