Summary: Summary pending

Summary: (a) Control of Narcotic Substances Act (XXV of 1997)--- ----S. 9(c)---Possession of narcotics---Appreciation of evidence---Safe custody and safe transmission of the narcotic substances not proved---Prosecution case was that 1780-grams charas was recovered from the possession of accused---Complainant had deposed that he brought accused and case property at Police Station where he lodged the FIR against him---Nowhere he had deposed that either he deposited charas with the Incharge of Malkhana or handed it over to the Investigating Officer of the case---Police Constable/mashir had also neither deposed that charas was deposited with the Incharge of Malkhana nor it was handed over to the Investigating Officer---However, Investigating Officer deposed that charas was deposited in the Malkhana---Record reflected that alleged recovery was effected on 11.10.2022, whereas sample parcels were received in the office of Chemical Examiner on 12.10.2022 without any plausible explanation as to where they remained from 11.10.2022 to 12.10.2022---Prosecution had failed to establish safe custody and safe transmission of the sealed sample parcels to the Chemical Examiner as Moharrar, who kept the sample parcel in the Malkhana and Police Constable, who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution---Chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under the Act, 1997 and the chain of custody ensures that correct representative samples reached the office of the Chemical Examiner---Any break or gap in the chain of custody i.e. in the safe custody or safe transmission of the narcotic or its representative samples made the report of the Chemical Examiner unsafe to justify conviction of the accused---Prosecution, therefore, has to establish that the chain of custody remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner---However, the facts of the present case revealed that the chain of custody had been compromised, therefore, reliance could not be placed on the report of the Chemical Examinerto support conviction of the appellant---Appeal against conviction was allowed, in circumstances. Muhammad Hazir v. The State 2023 SCMR 986 rel. (b) Criminal trial--- ----Benefit of doubt---Principle---Single or slightest doubt, if found reasonable in the prosecution case, would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Tajamal Hussain v. The State 2022 SCMR 1567 rel. Zafar Ali Talpur for Appellant. Khadim Hussain, Addl. P.G for the State. Date of hearing: 17th January, 2024. Judgment Naimatullah Phulpoto, J .--- Zohaib Ali Samo appellant was tried by learned Special Judge, CNS, Thatta in Special Case No. 91 of 2022 for offence under Section 9(c) of CNS Act 1997. After regular trial, vide judgment dated 25.02.2023, appellant was convicted under section 9-3(c) of CNS (Amendment) Act, 2022 and sentenced to 10 years R.I and to pay fine of Rs.100,000/- and in default in payment of fine, he was ordered to undergo S.1 for 06 months. Appellant was extended benefit of section 382(b) Cr.P.C. 2. Brief facts of the prosecution case are that on 11.10.2022, SIP Manzoor Ali Chandio, posted at CIA Thatta, left P.S along with his subordinate staff for patrolling duty, when police party reached at Attock Petrol Pump National Highway, SIP Manzoor Ali Chandio received spy information that a person was selling charas at Nandi Allahkhai. Police party reached at the pointed place at 1230 hours and found a person standing there, who was carrying a shopper in his hand. On enquiry, accused disclosed his name as Zohaib Ali. It is alleged that said person tried to escape but was apprehended by the police and from his possession one shopper was secured containing four pieces of charas, on weighing, it became 1780 grams. Mashirnama of arrest and recovery was prepared in presence of mashirs namely PCs Ahmed Khan and Ali Nawaz; accused and case property were brought to the police station where FIR vide Crime No. 253/2022 under Section 9(c) of CNS Act, 1997 was registered on behalf of state. 3. During investigation, charas was sent to chemical examiner and positive report was received. On conclusion of investigation, final report was submitted against the appellant under the above referred section. 4. Trial Court framed Charge against appellant under the above referred sections at Ex.02, to which he pleaded not guilty and claimed trial. 5. At trial, prosecution examined three witnesses and positive report of the chemical examiner was produced in evidence. Thereafter, prosecution side was closed. 6. Trial Court recorded statement of accused/appellant under Section 342 Cr.P.C at Ex.9. Appellant claimed his false implication in the present case and denied the prosecution allegations. Appellant neither examined himself on oath under section 340(2) Cr.P.C in disproof of the prosecution allegations nor led any evidence in his defence. 7. Trial Court after hearing the learned counsel for the appellant, prosecutor and while examining the evidence by judgment dated 25.02.2023, convicted and sentenced the appellant as stated above. Hence, the appellant being dissatisfied with the judgment of conviction against him has filed instant appeal. 8. The facts of the case as well as evidence produced before the Trial Court find an elaborate mention in the judgment dated 25.02.2023 passed by the Trial Court and therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 9. Learned advocate for the appellant mainly argued that prosecution has failed to prove safe custody and safe transmission of the charas to the chemical examiner, that neither Head Moharir of the police station nor PC Rafiq Ahmed, who had taken charas to the chemical examiner has been examined; that even though it was a case of spy information, no private person was associated to witness the arrest and recovery. Lastly, it is argued that prosecution has failed to prove its' case against the appellant. 10. Mr. Khadim Hussain Addl. P.G argued that evidence of police officials is confidence inspiring, reliable and corroborated by positive report of chemical examiner. As regards safe custody and safe transmission of the charas to the chemical examiner is concerned, he argued that no question with regard to tempering of the charas at Malkhana of the police station was put up to the prosecution witnesses and even report of the chemical examiner depicts that seal on the parcel was intact. Thus, prosecution has established safe custody and safe transmission of the charas. He prayed for dismissal of the appeal. 11. After hearing learned counsel for the parties, we have re-examined the entire prosecution evidence produced before the trial Court and have come to the conclusion that prosecution has failed to prove it's case against the appellant for the reasons that from the evidence it appears that prosecution has also failed to prove safe custody and safe transmission of the charas to chemical examiner for the reasons that SIP Manzoor Ali Chandio, head of the police party has deposed that he brought accused and case property at P.S where he lodged the FIR against him. No where he has deposed that either he deposited charas with the incharge of Malkhana or handed it over to the I.O of this case. P.W-02 PC Ahmed Khan has also neither deposed that charas was deposited with the Incharge of Malkhana nor it was handed over to the I.O. However, P.W-03 SIP Muhammad Hashim deposed that charas was deposited in the Malkhana. Record reflects that alleged recovery was effected on 11.10.2022, whereas sample parcels were received in the office of chemical examiner on 12.10.2022 without any plausible explanation as to where remain sample parcel from 11.10.2022 to 12.10.2022. Prosecution has failed to establish safe custody and safe transmission of the sealed sample parcel to the chemical examiner as Moharrar, who kept the sample parcel in the Malkhana and PC Rafiq Ahmed, who delivered the sample parcel to the office of Forensic Science Laboratory, were not produced by the prosecution. 12. It is an established position that the chain of safe custody and safe transmission of narcotics must be safe and secure because, the Report of Chemical Examiner enjoys very critical and pivotal importance under CNS Act and the chain of custody ensures that correct representative samples reach the office of the Chemical Examiner. Any break or gap in the chain of custody i.e., in the safe custody or safe transmission of the narcotic or its representative samples makes the report of the Chemical Examiner fail to justify conviction of the accused. The prosecution, therefore, is to establish that the chain of custody has remained unbroken, safe, secure and indisputable in order to be able to place reliance on the report of the Chemical Examiner. However, the facts of the present case reveal that the chain of custody has been compromised, therefore, reliance cannot be placed on the report of the Chemical Examiner to support conviction of the appellant. In the case of Muhammad Hazir v. The State (2023 SCMR 986), the Apex court held that: "3. After hearing the learned counsel for the appellant as well as the learned state counsel and perusing the available record along with the impugned judgment with their assistance, it has been observed by us that neither the safe custody nor the safe transmission of the sealed sample parcels to the concerned Forensic Science Laboratory was established by the prosecution because neither the Moharrar nor the Constable Shah Said (FC-2391) who deposited the sample parcels in the concerned laboratory was produced. It is also a circumstance that recovery was affected on 10.02.2015 whereas the sample parcels were received in the said laboratory on 13.02.2015 and prosecution is silent as to where remained these sample parcels during this period, meaning thereby that the element of tampering with is quite apparent in this case. This Court in the cases of Qaiser Khan v. The State through Advocate-General, Khyber Pakhtunkhwa, Peshawar (2021 SCMR 363), Mst. Razia Sultana v. The State and another (2019 SCMR 1300), The State through Regional Director ANF v. Imam Bakhsh and others (2018 SCMR 2039), Ekramullah and others v. The State (2015 SCMR 1002) and Amjad Ali v. The State (2012 SCMR 577) has held that in a case containing the above mentioned defect on the part of the prosecution it cannot be held with any degree of certainty that the prosecution had succeeded in establishing its case against an accused person beyond any reasonable doubt. 13. It is well settled that for the purposes of extending the benefit of doubt to an accused, it is not necessary that there be multiple infirmities in the prosecution case or several circumstances creating doubt. A single or slightest doubt, if found reasonable, in the prosecution case would be sufficient to entitle the accused to its benefit, not as a matter of grace and concession but as a matter of right. Reliance in this regard may be placed on the case reported as Tajamal Hussain v. the State (2022 SCMR 1567). 14. For what has been discussed above, we are of the view that the prosecution has failed to prove its case beyond a reasonable doubt and the benefit of doubt is extended to the appellant. Consequently, instant appeal is allowed and conviction and sentence passed by learned trial Court are hereby set aside and the appellant Zohaib Ali Samo is acquitted of the charge. He shall be released forthwith, if not required to be detained in any other custody pinch case. JK/Z-3/Sindh Appeal allowed.

Summary: (a) Specific Relief Act (I of 1877)--- ----Ss. 39 & 42---Gift deed, cancellation of---Suit for declaration and cancellation of registered gift deed---Property in question was originally owned by the plaintiff's (respondent's) father, who gifted it to the respondent vide a gift deed and also handed over its possession---Thereafter, plaintiff raised construction on the land and also executed a power of attorney in the name of his father for administration and supervision of the property, but the father (attorney) gifted the property in question to the petitioner (defendant) vide another gift deed---Plaintiff filed a suit for declaration and cancellation of the registered gift deed in favour of petitioner with the plea that his father (attorney) due to his old age and cardiac issues, was not in a proper frame of mind, therefore, the gift deed in favour of petitioner was the result of connivance and disingenuousness---Validity---Property in question was gifted to the petitioner through the general attorney of plaintiff---Neither is anything reflected from the record that the general attorney obtained permission or consent from his principal for transferring the property in question by means of gift to the petitioner, nor was it ever pleaded that the earlier gift in favour of plaintiff was revoked for any reason---All the more so, the petitioner pleaded in his defense that he purchased the property in question against valuable consideration, but at the same time, he was also claiming the property as a lawful donee---Both pleas are mutually destructive if considered in juxtaposition---If it was a case of gift, then the plea of sale was misleading and erroneous, and if the property was purchased against valuable consideration, then there was no logical reason for the execution of a gift deed rather than a conveyance deed to unveil a straightforward sale transaction---As far as the proof of possession of plaintiff is concerned, it clearly transpires from the documents exhibited in the Trial Court that though the petitioner's special attorney averred that at the time of transfer of property, possession was also delivered, but subsequently, it was snatched by the plaintiff, which assertion was belied and in support of thereof, the plaintiff produced copies of Form P.T.I, and a bunch of electricity and gas bills to corroborate and substantiate the factum of possession---Petitioner filed a complaint under Section 3 of the Illegal Dispossession Act, 2005 against the plaintiff and his special attorney, but the Trial Court acquitted them, which was upheld by the High Court---One more important aspect that cannot be lost sight of is that plaintiff has two sons and four daughters, and seemingly, there was no rhyme or reason on record to divulge why the plaintiff deprived his own offspring, and conveyed his attorney to gift the property to the petitioner---An attorney or agent may gift the property on express permission and instructions of his principal, however in the present case nothing was presented on record through cogent evidence that the attorney ever asked for the permission or consent of his principal to gift the property in question to the petitioner; therefore, such a gift was not validated by the courts below in three concurrent judgments---Suit filed by the plaintiff had been rightly decreed--- Petition was dismissed and leave was refused. Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494; Muhammad Ashraf and 2 others v. Muhammad Malik and others PLD 2008 SC 389; Mst. Naila Kausar and another v. Sardar Muhammad Bakhsh and others 2016 SCMR 1781 and Allan Ditta and others v. Manak alias Muhammad Siddique and others 2017 SCMR 402 ref. (b) Islamic law--- ----Gift---Pre-requisites----Doner should be compos mentis, meaning thereby a person who is of sound mind and has the mental capacity to understand the legal implications of his act of making a gift, and he must be of age and also the owner of the property intended to be gifted; the thing gifted should be in existence at the time of making hiba; the thing gifted should be such that benefitting from it is lawful under the Shariah; the donor must be free from any coercion/duress or undue influence while making a gift; the thing gifted should come into the possession of the donee himself or through his representative/guardian for an effective hiba--- Under Muslim law, the constituents and components of a valid gift are tender, acceptance and possession of property---It is also obligatory that the donor divest and dissociate himself from the dominion and ownership over the property of the gift and put into words his categorical intention to convey the ownership to the donee distinctly and unambiguously with the delivery of possession of the property and ensure that donee has secured physical ascendency over the property to constitute the delivery of possession.

Summary: Summary pending

Summary: Summary pending

Summary: Background: The appellant filed an appeal under Section 12(2) of the Civil Procedure Code (C.P.C.), challenging a judgment and decree by the Additional District Judge Kotli, which favored the respondents in a suit for specific performance. The appellant claimed that the judgment was obtained through fraud, arguing that the entitlement certificate issued for the land transfer was invalid without partition. The trial court dismissed the appellant's application, leading to this appeal. -----Issues: 1- Whether the application under Section 12(2), C.P.C., alleging fraud and misrepresentation, was correctly dismissed by the trial court. -----2- Whether an appeal was the proper legal remedy, or if the appellant should have filed a revision petition under Section 115, C.P.C. -----Holding/Reasoning/Outcome: The High Court upheld the dismissal, emphasizing that an order under Section 12(2), C.P.C., does not constitute a decree and is therefore not appealable. Instead, a revision petition under Section 115, C.P.C., is the correct procedure for challenging such orders. The court noted that it could not convert the appeal into a revision due to the five-year delay. Additionally, the court found no evidence of fraud, forgery, or misrepresentation in the entitlement certificate or the judgment. -----Citations/Precedents: Section 12(2), C.P.C. – Provides grounds for setting aside judgments obtained by fraud, but orders under this section do not culminate in appealable decrees. Section 115, C.P.C. – Specifies that revision, not appeal, is the appropriate recourse for non-decree orders. 2013 CLC 411 (Peshawar High Court) – Reinforces that orders under Section 12(2) are not appealable.

Summary: Summary Pending

Summary: (a) Constitution of Pakistan: --- Art. 10-A, Art. 199; NAB Ordinance, 1999, S. 16(b); Cr.P.C., 1898, S. 352—Fair trial and place of trial. The Islamabad High Court dismissed writ petitions challenging notifications issued by the Federal Government under Section 16(b) of the National Accountability Ordinance, 1999, for conducting the petitioner’s trial in jail premises. The Court held that the Federal Government is empowered to specify the place of sitting for Accountability Courts, including jail premises, for particular cases under compelling circumstances such as security concerns, provided the trial remains accessible to the public, including the press. The Court emphasized that the executive’s power under Section 16(b) of the Ordinance is not curtailed by Section 352 Cr.P.C., which governs judicial discretion regarding trial locations. These powers coexist and are contextually applied based on statutory provisions and factual circumstances. (b) Judicial Review of Administrative Orders: --- Scope of executive power under S. 16(b) of NAB Ordinance; distinction from judicial power under Cr.P.C. S. 352. The Court clarified that administrative orders under Section 16(b) of the NAB Ordinance for determining the place of trial are distinct from judicial orders under Section 352 Cr.P.C., which allow trial courts to order proceedings at alternate locations. Executive discretion to order trials in specific locations, such as jail premises, is valid when necessitated by security concerns or public interest. The Court further explained that administrative decisions of this nature do not violate the right to a fair trial under Article 10-A of the Constitution, as long as procedural safeguards and public access to trials are maintained. (c) Legitimacy of Notifications Prior to Filing of References: --- Validity of administrative notifications issued before initiation of formal proceedings. The Court rejected the contention that notifications issued prior to the filing of NAB References were invalid. It held that such notifications, issued to address preliminary proceedings like bail or remand in light of security concerns, were lawful and did not prejudice the accused’s rights. (d) Doctrine of Legislative Fiction: --- NAB Ordinance, 1999, S. 5A; retrospective application of judicial appointments. The Court addressed concerns regarding the appointment of Presiding Officers under the amended Section 5A of the NAB Ordinance, which shifted the appointing authority to the Federal Government. It concluded that all judges appointed prior to the amendment are deemed to have been appointed under Section 5A, ensuring continuity and legality of proceedings without requiring fresh appointments. (e) Security Concerns and Jail Trials: --- Jail trials and public access; harmonization of security needs with transparency. The Court upheld the legality of holding trials in jail premises due to documented security threats to the petitioner, noting that such decisions aim to ensure safety while maintaining public access to proceedings. The trial court was directed to regulate public and media access in accordance with Section 352 Cr.P.C., balancing transparency with security imperatives. (f) Disposition: Petitions dismissed; Federal Government’s notifications upheld. The Court dismissed the petitions, affirming the Federal Government’s authority under Section 16(b) of the NAB Ordinance to specify the place of trial. It directed the trial court to ensure compliance with procedural safeguards and public access to uphold the petitioner’s right to a fair trial.

Summary: This case originated from an agreement on July 20, 2005, where the appellant agreed to buy land from the respondent, paying Rs.5,000,000 as earnest money. Subsequent disputes led to the cancellation of this agreement. Initially, the appellant filed a suit for declaration, possession, and specific performance of the agreement in the Islamabad High Court but later withdrew it, intending to file a fresh suit. This led to the second legal action for the recovery of the earnest money, predicated on the claim that the agreement was mutually cancelled and there was an agreement to refund the earnest money.The Supreme Court was tasked with determining whether it was permissible to file a second suit for the recovery of earnest money after withdrawing the first suit for specific performance. The Court found it permissible, noting that the causes of action in the two suits were distinct. Regarding the limitation period for the second suit, the Court concluded that it fell under Article 97 of the Limitation Act, 1908, with the limitation period starting from the date of the failure of consideration, rather than the initial payment or cancellation date. Contrary to the Islamabad High Court?s earlier revision, which found the second suit barred under Order II, Rule 2 CPC and by limitation, the Supreme Court disagreed. It noted the separate causes of action in the two suits and the applicability of Article 97 for the limitation period.The Supreme Court also addressed the application of the Specific Relief Act, 1877, clarifying that Sections 19 and 29 did not prevent the filing of the second suit since the claim was for the recovery of earnest money and not for compensation. Consequently, the Supreme Court set aside the judgment of the Islamabad High Court dated May 27, 2016, and directed the trial court to decide on the merits of the suit in accordance with the law.In its observations, the Supreme Court noted the protracted litigation process stemming from the single agreement and recommended amendments to the Specific Relief Act, 1877. These amendments should allow for additional claims, such as possession, partition, and the refund of earnest money, in cases where specific performance is refused. The Supreme Court found the appeal successful, setting aside the High Court's judgment and dismissing the application filed by defendant No.2 under Order VII, Rule 11 CPC. The trial court was instructed to proceed with the case on its merits, and copies of this judgment were ordered to be sent to relevant legal and governmental authorities for their information and necessary action.

Summary: Bail denied ---- Issue:Whether the petitioner is entitled to post-arrest bail considering the nature and gravity of the allegations against him.Arguments:For the Petitioner: Emphasized the delay in lodging the FIR and contested the strength of the evidence against the petitioner.For the State and Respondent: Highlighted the serious nature of the allegations, the recovery of incriminating evidence, and the societal impact of the crimes to argue against the grant of bail.Decision:The petition for post-arrest bail was dismissed.Reasoning:The court noted that delays in reporting crimes of a sexual nature, especially involving minors, are not uncommon due to fear, shame, and potential social stigma.The court found sufficient material on record linking the petitioner to the alleged crimes, including the recovery of the mobile device used to record the video and a firearm with ammunition.Given the gravity of the crimes, their impact on the minor victim, and the societal implications, the court deemed the offenses too serious for the grant of bail. --- Criminal Procedure Code (V of 1898)------- S. 497--- Penal Code (XLV of 1860), Ss. 377& 376--- Khyber Pakhtunkhwa Child Protection and Welfare Act (XIII of 2010), Ss. 43,48 & 53--- Sexual abuse--- Bail, refusal of--- Delayed FIR--- Though there is a delay of about 7/8 months in reporting the matter to the local police, however, delay in such like matter is immaterial for the reason that allegedly the petitioner used to blackmail the complainant for uploading his video on social media which forced him to surrender to his demands for unnatural offences and once he refused to bow down to the demands of the petitioner, he made the video viral on social media and the same was secured through USB. It is also perceivable that a minor who has faced trauma due to an immoral act, try not only to conceal but keep silent due to shame and disgrace in the society, hence delay in lodging the report in the cases pertaining to sodomy or rape could not be considered a material aspect to dislodge the contention of a victim, if other materials are available on record to support the prosecution version. Bail was refused.(Bail Petition dismissed)