Summary: (a) Guardians and Wards Act ( VIII of 1890 ) --- ---- S. 25 --- Custody of minor --- Agreement between the parents regarding custody --- Effect --- Custody of minor was concurrently denied to the fatherwhile discarding the agreement qua custody of the minor --- Validity ---Custody of the minor cannot be settled through a private compromise or even by arbitration and (custody) is liable to be determined on the touchstone of the principle of welfare of minor--Neither any agreement qua custody of the minor, which is in derogation of the right of a child with respect to his welfare nor contracting of a second marriage by divorced mother of the child is an impediment for such a mother to retain custody of her child--- Rather, the matter of custody is to be decided on the touchstone of the principle of welfare--- No illegality, infirmity or jurisdictional defect was found in the impugned judgments passed by both the Courts below for the reason that welfare of the minor was prime consideration to decide custody matters--- Constitutional petition, being merit-less , was dismissed, in circumstances. Mst. Beena v. Raja Muhammad and others PLD 2020 SC 508 and Shaista Habib v. Muhammad Arif Habib and others PLD 2024 SC 629 ref. (b) Guardians and Wards Act (VIII of 1890)--- ---- S. 25 --- Custody of minor --- Second marriage of parent --- Welfare of minor --- Scope --- Custody of minor was concurrently denied to the father --- Validity --- Second marriage of a female mother is not an impediment for a mother to retain custody of a child if she is otherwise found suitable for custody of the child on the principle of welfare---In the present case, even the petitioner (father of minor) had contracted second marriage and had a daughter from his existing wife; in such a situation, the minor could not be left at the mercy of a stepmother when the petitioner was a police officer who remained on assignments out of his house for most of the time--- More so, the minor was living with the respondent / mother since his birth and had developed deep love and affection with her and was being raised in a cordial and comfortable atmosphere and was being properly educated --- Minor, having been produced before High Court, candidly stated that he wanted to reside and be raised by his mother --- No illegality, infirmity or jurisdictional defect was noticed in the impugned judgments for the reason that welfare of the minor was prime consideration to decide custody matters--- Constitutional petition, being merit-less, was dismissed, in circumstances. Muhammad Younas Bhullar for Petitioner. Ch. Muhammad Asghar Bhullar for Respondent No. 3. Date of hearing: 27th February, 2025. Judgment ABID HUSSAIN CHATTHA, J.--- This constitutional Petition is directed against the impugned Judgments and Decrees dated 11.03.2022 and 18.10.2022 passed by Judge Guardian Court and Additional District Judge, Pattoki, District Kasur, respectively. 2. Precisely, the Petitioner instituted a Custody Petition under Section 25 of the Guardians and Wards Act, 1890 against Respondent No. 3 (the "Respondent") seeking custody of Rehan Amjad (the "Minor") on the grounds that Para 357 of the Muhammadan Law entitles him to seek custody of the Minor son who is beyond seven years of age; and the Respondent herself executed an agreement agreeing to handover custody of the Minor in case of second marriage which she has contracted which also attracts Para 354 of the Muhammadan Law disentitling the Respondent from retaining custody of the Minor upon her second marriage. 3. The claim was resisted by the Respondent. The Trial Court after framing of issues and recording of evidence dismissed Custody Petition of the Petitioner and chalked out a visitation schedule in his favour. The Petitioner preferred an Appeal but the same was also dismissed. 4. The Courts below while determining welfare of the Minor on the basis of evidence on record discarded the agreement qua custody of the Minor on the ground that custody of the Minor cannot be settled through a private compromise or even by arbitration and is liable to be determined on the touchstone of the principle of welfare. It was also noted that it is trite law that second marriage of a female is not an impediment for a mother to retain custody of a child if she is otherwise found suitable for custody of the child on the principle of welfare. This is particularly so when in the present case even the Petitioner has contracted second marriage and has a daughter from his existing wife. Rather, the Petitioner has presently contracted his 4th marriage with one Shahnaz Bibi and in such a situation, the Minor cannot be left at the mercy of a stepmother when the Petitioner is a police officer who remains on assignments out of his house for most of the time. More so, the Minor is living with the Respondent since his birth and has developed deep love and affection with her who is being raised in a cordial and comfortable atmosphere and is being properly educated. 5. It is importantly noted that in compliance with the Order dated 06.02.2024, the Minor was produced and he was examined by this Court. He candidly stated that he is studying in Class-V in J.W Grammar School, Phool Nagar and wants to reside and be raised by his mother. Hence, this Court finds no illegality, infirmity or jurisdictional defect in the impugned Judgments for the reasons that welfare of the Minor is prime consideration to decide custody matters. Neither any agreement qua custody of the Minor which is in derogation of the right of a child with respect to his welfare nor contracting of a second marriage by divorced mother of the child are impediments for such a mother to retain custody of her child. Rather, the matter of custody is to be decided on the touchstone of the principle of welfare. Reliance is placed on cases titled, "Mst. Beena v. Raja Muhammad and others" (PLD 2020 SC 508) and "Shaista Habib v. Muhammad Arif Habib and others" (PLD 2024 SC 629). 6. In view of the above, this constitutional Petition, being devoid of any merit, is dismissed, accordingly. MQ/A-15/L Petition dismissed.

Summary: Criminal Procedure Code ( V of 1898 ) --- ---- Ss. 497(2) & 498 ---Penal Code ( XLV of 1860) , Ss. 353, 186, 147, 148 & 149---Assault or criminal force to deters public servant from discharge of his duty, obstructing public servant in discharge of public functions, rioting, armed with deadly weapon , unlawful assembly--- Pre-arrest bail , grant of --- Bailable offence(s) --- Further inquiry---Sessions Court declined grant of pre-arrest bail to the accused persons(petitioners) --- Validity ---No doubt, the applicants were nominated in the FIR, however, the offences with which they had been charged, were bailable---Grant of bail in bailable offence is the indefeasible right of an accused---In present case, though the offences were bailable and grant of bail in bailable offences is indefeasible right of the accused , even then request of the petitioner /accused was turned down by the Court below on flimsy grounds --- Case against the applicants required further inquiry in terms of subsection (2) to S.497 Cr.P.C.---Interim bail already granted to the applicants, was confirmed in circumstances. Mian Mahmud Ali Qasuri and others v. The State PLD 1963 SC 478; Tariq Bashir and 5 others v. The State PLD 1995 SC 34 and Muhammad Tanveer v. The State and another PLD 2017 SC 733 ref. Muhammad Umar Panhwar for Applicants. Saleem Akhtar Buriro, Addl. Prosecutor General, Sindh along with SIP Mushtaq of P.S Mominabad, Karachi for the State. Date of hearing: 7th October, 2024. Order Muhammad Saleem Jessar, J.--- Through this application, applicants Hassan Alam and Muhammad Rashid seek their admission to pre-arrest bail in Crime No.339 of 2024 registered with Police Station Mominabad, Karachi, for the offences punishable to Sections 147, 148, 149, 353 and 186 P.P.C. The applicants preferred their anticipatory bail before the Court of Sessions wherefrom it was assigned to Addl. Sessions Judge-XII, Karachi (West) vide Criminal Bail Application No.3157 of 2024 (re-Hassan Alam and another v. The State), who after hearing the parties, has turned down their request through order dated 29.07.2024; hence, instant bail application has been maintained. 2. Since the facts of the prosecution case are already mentioned in the FIR, which is annexed with the Court file, therefore, there is no need to reproduce the same. 3. Learned counsel for the applicants submits that offence(s) with which applicants have been charged, are bailable and in bailable offence bail becomes right of the accused, therefore, prays for confirmation of the bail. 4. On the other hand, learned Addl. P.G, Sindh appearing for the State, opposes the bail application; however, he could not controvert the fact that offences with which accused stand charged, are bailable. 5. Heard arguments and perused record. No doubt, the applicants are nominated in the FIR; however, the offences with which applicants have been charged, are bailable. It is settled-cum-recognized principle of law that grant of bail in bailable offence is the right of an accused even once bail granted in bailable offence cannot be cancelled. Reference can be had from the dicta laid down by Hon'ble Supreme Court of Pakistan in case of Mian Mahmud Ali Qasuri and others v. The State (PLD 1963 SC 478) whereby learned Bench had laid down esteemed dicta in concluding para of the judgment which reads as under;)_ "????The policy of the Code seems to be that in the case of bailable offences the person accused has the indefeasible right to grant of bail subject of course to satisfactory sureties being offered, if sureties are considered necessary. There is admittedly no provision in the Code permitting cancellation of such a bail. Bail is not a mere privilege in such cases but a right of the subject whose liberty is regarded as a precious asset to the preserved undiminished???" 6. In instant case, though the offences are bailable and per settled principle of law, grant of bail in bailable offences is indefeasible right of the accused even then their request was turned down by the Court below on flimsy grounds and such practice has not been approved by the superior Courts. 7. I am also fortified with dicta laid down by the Hon'ble Supreme Court of Pakistan in case of Tariq Bashir and 5 others v. The State (PLD 1995 SC 34), which was again recognized and maintained by the Hon'ble Supreme Court of Pakistan in case of Muhammad Tanveer v. The State and another (PLD 2017 SC 733). In para-6 of the order in case of Muhammad Tanveer (Supra), following dicta has been laid down;_ "6. We are shocked and disturbed to observe that in cases of this nature, not falling within the prohibition contained in section 497, Cr.P.C., invariably grant of bail is refused on flimsy grounds. This practice should come to an end because the public, particularly accused persons charged for such offences are unnecessarily burdened with extra expenditure and this Court is heavily taxed because leave petitions in hundreds are piling up in this Court and the diary of the Court is congested with such like petitions. This phenomenon is growing tremendously, thus, cannot be lightly ignored as precious time of the Court is wasted in disposal of such petitions. This Court is purely a constitutional Court to deal with intricate questions of law and Constitution and to lay down guiding principle for the Courts of the country where law points require interpretation." 8. The case has been challaned which is now pending before the Court of Civil Judge and Judicial Magistrate-XVIII, Karachi (West) where it is fixed today for framing of charge. 9. In the circumstances and in view of dicta laid down in the cases referred to above, case against the applicants requires further inquiry in terms of subsection (2) to section 497 Cr.P.C. Consequently, instant bail application is hereby allowed; interim bail granted earlier to applicants Hassan Alam son of Noor Alam and Muhammad Rashid son of Allauddin on 12.08.2024 is hereby confirmed on same terms and conditions. 10. Applicants present before the Court are directed to continue their appearance before the trial Court without negligence and in case they may misuse the concession or may temper with the prosecution's evidence then the trial Court would be competent to take legal action against them as well to their surety(ies) in terms of Section 514 Cr.P.C. Trial Court is also hereby directed to make necessary arrangements for securing attendance of the prosecution witnesses and conclude the trial within shortest possible time under intimation to this Court through MIT-II. 11. Let copy of this Order be communicated to trial Court through learned Sessions Judge, concerned. Learned MIT-II to ensure compliance. MQ/H-11/Sindh Bail confirmed.

Summary: (a) Malicious prosecution- ---Factors to be established by plaintiff before a decree for malicious prosecution could be awarded enumerated. Following factors must be established by the plaintiff before a decree for malicious prosecution can be awarded to him:--- (i) that the action was actuated by malice; (ii) that the initiator acted without reasonable and probable cause; (iii) that the plaintiff was prosecuted by the defendant on a criminal charge; (iv) that the prosecution terminated in favour of the plaintiff; (v) that the proceedings had interfered with plaintiff's liberty and had also affected his/her reputation; and (vi) that the plaintiff had suffered damages. Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., H.Q., Islamabad and 6 others PLD 2002 SC 1060; Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478; Raja Braja Sunder Deb v. Bamdeb Das AIR 1944 PC 1; Abdul Rasheed v. State Bank of Pakistan and another PLD 1970 Karachi 344; United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others 1999 SCMR 734 and Muhammad Yousaf v. Abdul Qayyum PLD 2016 SC 478 rel. (b) Malicious prosecution--- ----Pre-requisites---Malice---Mere malice alone is not enough, there must also be shown to be absence of reasonable and probable cause and it is to be proved by the plaintiff that the prosecution was initiated without any justifiable reason and it was due to malicious intention of the defendant and not with the mere intention to carry law into effect. (c) Malicious prosecution--- ---Pre-requisites---In the present case the cause of action claimed in the suit had its genesis in initiation of criminal proceedings by the respondent, but mere fact that prosecution instituted by respondent/defendant against the plaintiff ultimately failed, could not expose the former to malicious prosecution, unless it was proved by the plaintiff that the prosecution was initiated without any reasonable and probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect. Abdul Majeed Khan v. Tawseen Abdul Haleem and others 2012 CLD 6 and Subedar (Retd.) Fazale Rahim v. Rab Nawaz 1999 SCMR 700 rel. (d) Malicious prosecution--- ----Types of damages---Claim for damages in the case of malicious prosecution carries two facets relating to (i) general damages and (ii) special damages---General damages refer to special character, condition or circumstances which accrue from immediate, direct and approximate result of wrong complained of---Special damages follow as a natural and approximate consequence in a particular case by reason of special circumstances or condition---Appellant failed to substantiate on record through cogent and unimpeachable evidence justification for award of general damages and in that regard only examination-in-chief of witnesses was valueless---So far as special damages were concerned, for that he had to prove that all the ingredients of malicious prosecution had co-existed to establish his claim of damages which throughout he could not prove---High Court dismissed the appeal of appellant accordingly. Abdul Rauf v. Abdul Razzak and another PLD 1994 SC 476 rel. Muhammad Haroon Gondal for Appellant. Usman Minhas for Respondents. Date of hearing: 16th May, 2024. Judgment Muhammad Raza Qureshi, J .--- This Regular First Appeal has been preferred to call into question the legality, findings and reasons contained in the impugned judgment and decree dated 22.06.2022 passed by the learned Civil Judge 1st Class, Phalia whereby suit for recovery of damages of 59,000,000/- for malicious prosecution filed by the appellant was dismissed by the learned Trial Court. 2. The facts culminating into the impugned judgment and decree emanate from the subject matter suit which was filed by the appellant against respondents Nos.1 and 2 on the ground that after giving divorce to respondent No.1, she lodged a private complaint against him titled Sadia Safdar v. Afzal Ahmad and others with frivolous allegations from which ultimately the appellant stood acquitted. As per contents of the plaint the appellant suffered from business losses for which he claimed damages for Rs.5,000,000/-, for mental agony Rs.3,500,000/-, for tarnishing reputation and defaming him Rs.50,000,000/- were claimed as damages whereas Rs.500,000/- were claimed as miscellaneous expenses. As per contents of the plaint the appellant claimed that since the respondent No.1 his ex-wife had levelled false allegations against him, therefore, the suit was also liable to be decreed against her. The suit was contested by the respondents and learned Trial Court through order dated 19.01.2021 framed as many as following four issues:- i. Whether the plaintiff is entitled to decree for recovery as prayed for? OPP ii. Whether the plaintiff has not come to the court with clean hands? OPD iii. Whether the suit is false and frivolous, same should be dismissed with cost? OPD iv. Relief. 3. After completion of trial, learned Trial Court arrived at a conclusion that the appellant had failed to prove his case and as a consequence thereof dismissed the subject matter suit. 4. According to learned counsel for the appellant the impugned judgment and decree is illegal and unlawful and same is liable to be set aside. Contends that learned Court below misread the evidence on record and failed to appreciate the fact that the appellant stood acquitted from the criminal proceedings initiated at the behest of respondent No.1. According to learned counsel the impugned judgment and decree is liable to be set aside. Learned counsel for the appellant in support of his arguments relied upon the case law cited as Mumtaz Ali Shah v. Chairman, Pakistan Telecommunication Company Ltd., H.Q., Islamabad and 6 others (PLD 2002 SC 1060) and Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478). 5. Conversely learned counsel for respondents submits that the appellant not only failed to substantiate his claim for damages but also failed to prove that he was maliciously prosecuted. According to learned counsel, respondent No. 1 rightly lodged a complaint against the appellant who failed to establish that initiation of such proceedings had an element of malice. 6. Arguments of learned counsel for the parties have been heard, record of appeal as well as lower Court has been perused, the pleadings of the parties have been examined and the oral as well as documentary evidence has been analyzed by us. 7. The canvass framed by the appellant by laying a challenge to the impugned judgment and decree revolves around resolution of scope and ambit of a suit for malicious prosecution. Therefore, it is important to note that in order to succeed in an action for malicious prosecution, the plaintiff must in the first instance prove (i) that the action was actuated by malice (ii) that the initiator acted without reasonable and probable cause (iii) that the plaintiff was prosecuted by the defendant on a criminal charge (iv) that the prosecution terminated in favour of the plaintiff (v) that the proceedings had interfered with plaintiff's liberty and had also affected his/her reputation, and (vi) that the plaintiff had suffered damages. To succeed in a case for malicious prosecution all these ingredients must coexist. Reliance in this regard is placed on Raja Braja Sunder Deb v. Bamdeb Das (AIR 1944 PC 1), Abdul Rasheed v. State Bank of Pakistan and another (PLD 1970 Karachi 344), United Bank Limited and 5 others v. Raja Ghulam Hussain and 4 others (1999 SCMR 734) and Muhammad Yousaf v. Abdul Qayyum (PLD 2016 SC 478). Therefore, this Court has to examine whether the test of co-existence of ingredients were satisfied by the appellant/ plaintiff. 8. While deciding this Appeal, the Court has also to strike a balance between two parties as the initiator of a criminal proceedings has freedom of action against a wrong and to set law in motion to bring criminal to justice without a fear of being prosecuted in case of being unsuccessful. In contrast the rights and protection of an innocent party who is being victimized by misuse of the process of law and possibly that is why, in the wisdom of Raja Braja Sunder Deb's case supra, the fundamental ingredient considered by Privy Council was a malicious defendant and an action without reasonable and probable cause as according to Privy Council the malice has been set to mean any wrong or indirect motive, but a prosecution is not malicious merely because it is inspired by anger. However, wrongheaded prosecutor may be if he honestly thinks that the accused has been guilty of a criminal offence he cannot be initiator of malicious prosecution. But malice alone is not enough, there must also be shown to be absence of reasonable and probable cause. It is to be proved by the plaintiff that the prosecution was initiated without any justifiable reason and it was due to malicious intention of the defendant and not with the mere intention to carry law into effect. 9. In the facts and circumstances, the merits of the case and evidence led by respective parties are to be evaluated on the touchstone of principles of law mentioned above. The appellant did not appear in the witness box and presented his two witnesses namely; Mahammad Inayat being his Special Attorney and Sarfraz Ahmad as PW-1 and PW-2 respectively. It is pertinent to mention here that both the witnesses appearing on behalf of appellant did not produce any documentary evidence and all the documents exhibited during course of arguments were adduced in statement of learned counsel for the appellant. During the cross-examination PW-1 candidly conceded that in nikahnama the appellant was mentioned as bachelor, which was contrary to the fact as in cross-examination PW-1 conceded that appellant got married thrice, however, he divorced all the wives. PW-1 also admitted that he did not produce any evidence on record with respect to abortion by respondent No.1. The plaint of the suit throughout reflected that the reason for divorcing respondent No.1 was her voluntary abortion of first child conceived by her out of wedlock of appellant and respondent No.1. 10. In witness box throughout the appellant failed to produce any document on record to substantiate that respondent No.1 got aborted her pregnancy. The perusal of private complaint reflects that the sole ground agitated by respondent No.1 to lodge a private complaint was fraudulent conduct of appellant to present himself as bachelor at the time of nikah and since upon attaining knowledge the respondent No.1 obtained divorce, therefore, she filed a private complaint. The perusal Exh.P-5 which is a judgment passed by Magistrate Section 30, Phalia reflects that the Court did not declare that complaint filed by respondent No.1 was false and frivolous rather while acquitting the appellant from the charge the appellant was given benefit of doubt due to weak evidence presented by the prosecution. 11. All these facts were duly considered by learned Court below and rightly evaluated that the co-existence of the ingredients meant to initiate malicious prosecution were not established in the facts and circumstances of the case. Co-existence of all those ingredients was a condition precedent to maintain the suit and appellant failed to prove through his witnesses any malice in initiating of private complaint against him. The perusal of evidence specially the judgment rendered by the Judicial Magistrate clearly prove one thing that the initiation of criminal proceedings against the appellant was based on reasonable or probable cause. Reliance is placed upon judgment reported as Abdul Majaeed Khan v. Tawseen Abdul Haleem and others (2012 CLD 6). 12. The cause of action claimed in the Suit had its genesis in initiation of criminal proceedings by the Respondent No.1, but mere fact that prosecution instituted by respondent/defendant against the plaintiff ultimately failed, cannot expose the former to effect the malicious prosecution, unless it is proved by the plaintiff that the prosecution was initiated without any reasonable and probable cause and it was due to malicious intention of the defendant and not with a mere intention of carrying the law into effect. Reliance in this respect is placed upon the judgment reported as Subedar (Retd.) Fazale Rahim v. Rab Nawaz (1999 SCMR 700). 13. In addition thereto, the claim for damages in the case of malicious prosecution carries two facets relating to (i) general damages and (ii) special damages. The general damages refers to special character, condition or circumstances which accrue from immediate, direct and approximate result of wrong complained of. Special damages follow as a natural and approximate consequence in a particular case by reason of special circumstances or condition. In the instant case the appellant failed to substantiate on record through cogent and unimpeachable evidence for award of general damages and in this regard only examination-in-chief of witnesses is valueless. So far as special damages are concerned, for that he had to prove that all the ingredients of malicious prosecution had co-existed to establish his claim of damages which throughout he could not prove. 14. The learned Trial Court while deciding issue No.1 took all legal aspects into consideration and rightly arrived at a conclusion that the appellant had failed to establish his claim for malicious prosecution and his evidence was bereft of any substance with respect to damages. The said damages in the case of malicious prosecution could only be awarded on production of strict proof thereof by the claimant and since the appellant failed to establish his case of malicious prosecution, therefore, the standard or quantum of said damages does not arise at all. Reliance in this respect is placed upon the case law cited as Abdul Rauf v. Abdul Razzak and another (PLD 1994 SC 476). 15. The upshot of the above discussion is that we are not persuaded that while passing the impugned judgment and decree the learned Trial Court had committed any illegality and therefore the same do not warrant any interference by us. Consequently, this Appeal is dismissed with no order as to cost. SA/A-46/L Appeal allowed.

Summary: Punjab Province Workers' Plots Allotment Regulations, 1976--- ----Regln. No.9(ii)---Punjab Workers Welfare Board Housing Scheme Policy, 2002, Cls. 3.18 & 3.19---Allotment of plot to employee of Labour Department ---Allottee, entitlement of --- Alienation of such plot , bar on---Labour Department assailed concurrent ex-parte findings whereby claim of plaintiff (buyer) was decreed regarding agreement / purchase of plot having been allotted to employee of Labour Department (defendant/seller)--- Validity --- Admittedly , the allotment of plot-in-question was cancelled after issuing notice to the allottee--- As per Regln. No.9(ii) of the Punjab Province Workers' Plots Allotment Regulations, 1976 , the allottee shall not be entitled to sublet, mortgage, or sell the plot and any infringement will render the allottee and/or his lessee / mortgager/ purchaser or both liable to ejectment from the plot-in-question and cancellation of the allotment ---Punjab Workers' Welfare Board Housing Scheme Policy 2002 (' the Policy ') was later introduced and as per cl. 3.18 of the Policy, the authority is competent to cancel the allotment , against which ( cancellation ) , remedy of an appeal is provided in cl. 3.19 of the Policy ---Plot-in-question was cancelled but no appeal was filed by allottee --- When the defendant had no title, no effective decree could be passed and this material and legal fact was not considered by the courts below and on the basis of concealment of fact and fraud the decree was obtained ---Allotment order was produced /exhibited but cancellation order was not produced--- Admittedly , the suit-property was public property and while passing the ex-parte decree/order it was the duty of the court to keep its eyes open with regard to legal and factual aspects involved in suit with the object to protect public interest and public property being its ultimate custodian ---Furthermore, the respondent /plaintiff had not arrayed the Province of the Punjab as party in the suit and in the absence of a necessary party, no effective decree or order could be passed---As the decisions of the lower courts below suffered from blatant non-reading of record as well as mis-application of law, the same were not sustainable in the eyes of law and were liable to be set-aside---High Court set-aside impugned judgments and decrees passed by the both the Courts below and matter was remanded to the Trial Court to implead the Province of the Punjab as party in the lis, obtain written statement from defendants and then decide the matter on merits--- Constitutional petition was allowed accordingly. Provincial Government through Collector, Kohat and another v. Shabbir Hussain PLD 2005 SC 337; Mst. Maqbool Begum and others v. Gullan and others PLD 1982 SC 46; Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Ltd (MBCL) and another 2021 SCMR 305 and Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others 2016 SCMR 24 ref. Muhammad Younas Bhullar for Petitioner. Ch. Umar Hayat Kamran Rajoka for Respondent No. 1. Date of hearing: 20th February, 2025. Judgment Ch. Muhammad Iqbal, J .--- Through this petition, the petitioner has challenged the vires of ex-parte judgment and decree dated 30.11.2022, passed by the learned Civil Judge, Faisalabad whereby suit for possession through specific performance filed by respondent No.1 (Akbar Ali) was decreed and also assailed the judgment and decree dated 31.01.2024, passed by the learned Addl. District Judge, Faisalabad who dismissed the appeal of the petitioner. 2. Brief facts of the case as contended by the learned counsel for the petitioner are that respondent No.1 filed a suit for recovery of possession through specific performance on the basis of written agreement to sell dated 12.12.2005 and contended that he purchased plot No.2728 measuring 3-Marlas situated in Tipu Sultan Colony Jaranwala Road, Khurianwala Faisalabad after payment of Rs.1,00,000/-through respondent No.2/Muhammad Mansha. The property was allotted to respondent No.2 by the petitioner's department whereas respondent No.1 stated that he purchased the same on the basis of agreement to sell and paid all consideration. Ex-parte proceedings were initiated against the petitioner department and whereafter after recording the evidence, suit was decreed of respondent No.1 vide judgment and decree dated 30.11.2022. Against the said decree, the petitioner preferred an appeal which was dismissed by the appellate court vide judgment and decree dated 31.01.2024. Hence, this writ petition. 3. Arguments heard and record perused. 4. Admittedly, plot No.2728 was allotted to Muhammad Mansha in which notice was issued on 10.07.2004 to Muhammad Mansha for cancellation and on 24.12.2005 the plot was cancelled. Moreover, as per Regulation No.9(ii) of the Punjab Province Workers' Plots Allotment Regulations, 1976, the allottee shall not be entitled to sublet, mortgage, or sell the plot and any infringement will render the allottee and/or his lessee/mortgager /purchaser or both liable to ejectment from the said plot and cancellation of the allotment. For ready reference regulation No.9 (ii) of the Regulations ibid is reproduced as under:- "ii. The allottee shall not be entitled to sublet, mortgage, or sell the plot. Any infringement will render the allottee and/or his lessee/mortgager/purchaser or both liable to ejectment from the said plot and cancellation of the allotment." Whereafter Housing Scheme Policy 2002 was introduced and as per clause 3.18 of the Policy, the authority is competent to cancel the allotment. For ready reference, clause 3.18 of the Policy 2002 is reproduced as under:- "3.18 Cancellation of allotment of plot/house/flat.- (a) The Competent Authority, may, after notice of show cause to the defaulter for a period of not less than 10 days, order the cancellation of the lease or revoke, tenancy or deed of allotment or title as the case may be in case he decides that the allottee has committed breach of the term and condition of allotment. If such a breach is rectifiable, the defaulter may be given a period not exceeding one month to rectify such breach. (b) The Competent Authority shall also be empowered to forfeit in favour of the Board, the amount deposited by the worker for the allotment of the housing units." Against which, remedy of an appeal is provided in clause3.19 of the Policy ibid which is reproduced as under:- "3.19 Appeals. (a) Any person aggrieved of the order passed by the Competent Authority regarding allotment or its cancellation may file appeal with the Appellate Authority within 20 days of the impugned order. (b) The order passed by the Appellate Authority shall be final and shall not be called in question in any forum." The plot was cancelled on 24.12.2005 but no appeal was filed by Muhammad Mansha. When Muhammad Mansha has no title, as such no effective decree could be passed and this material and legal fact are not considered by the courts below and on the basis of concealment of fact and fraud the decree was obtained by respondent No.1. The allotment order dated 04.04.1997 was produced as Exh.P3 but cancellation order was not produced. Admittedly the suit property is public property and while passing the ex-parte decree/order it is the duty of the court to keep its eyes open with regard to legal and factual aspects involved in suit with the object to protect public interest and public property being its ultimate custodian. Reliance is placed on the case cited as Provincial Government through Collector, Kohat and another v. Shabbir Hussain (PLD 2005 SC 337). 5. Furthermore, the respondent No.1 has not arrayed the Province of the Punjab as party in the suit and it is settled law that in the absence of a necessary party, no effective decree or order can be passed. Reliance in this regard is placed on cases cited as Mst. Maqbool Begum and others v. Gullan and others (PLD 1982 SC 46) and Province of Punjab through Secretary Excise and Taxation Department, Lahore and others v. Murree Brewery Company Ltd (MBCL) and another (2021 SCMR 305). 6. As the decisions of the lower courts below suffer from blatant non-reading of record as well as mis-application of law, as such the same are not sustainable in the eyes of law and are liable to be set-aside. Reliance is placed on the case titled as Nazim-ud-Din and others v. Sheikh Zia-Ul-Qamar and others (2016 SCMR 24). 7. In view of above, this writ petition is hereby allowed. Judgment and decree dated 30.11.2022, passed by the learned Civil Judge, Faisalabad and judgment and decree dated 31.01.2024, passed by the learned Addl. District Judge, Faisalabad are hereby set aside and matter is remanded to the trial court to implead the Province of the Punjab as party in the lis, obtain written statement from defendants and then decided the matter on merits afresh after framing the issues and recording the evidence of both the parties. MQ/D-4/L Petition allowed.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Ocular account not supported by medical evidence---Accused was charged for committing murder of his wife/daughter of complainant---In the present case, the appellant had maintained that his wife committed suicide when he was out of the house and when he reached the house the house was locked and he entered via the ventilator---Said method of entry was corroborated by other witness who was an independent witness and who lived above the appellant and would have no reason to give false evidence---Moreover, there was no eye-witness to the incident and no last seen evidence connecting the accused with his wife in respect of the incident---House was locked from the inside which only the wife could have done---According to the complainant the deceased complained to him about the accused maltreating her---Said fact was not supported by any other evidence on record---Prosecution witness who lived immediately upstairs from the appellant did not hear any arguments or quarrel coming from the house below where the accused and the deceased was living---Medical evidence did not support any recent acts of violence against the deceased apart from the neck injury---Hence there was no motive for the appellant to murder his wife especially as they had five children between them---First Information Report led to the exhumation of the body of the deceased on orders of the Court and the body of the deceased was exhumed by a team of medical experts who also carried out a post mortem---Medical evidence showed that the board was of the opinion that the death occurred due to asphyxia which resulted from constrictions of neck and hard and blunt injuries leading to cardio-respiratory failure---Moreover, the marks of injuries were noted at the time of exhumation of dead body---No other marks of injuries were found on the dead body of the deceased lady---Based on the above medical evidence without an eye-witness to the murder and the appellant's story that the deceased hung herself the Court found that the prosecution had not been able to prove beyond a reasonable doubt that the deceased was murdered and did not commit suicide as per the defence case---Appeal against conviction was allowed, in circumstances. Peeru Ram v. The State 2019 PCr.LJ 325 and Deen Mohammad v. The State 2016 PCr.LJ Note 86 ref. Lal Khan v. The State 2006 SCMR 1846 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b) & 201---Qatl-i-amd, causing disappearance of evidence of offence, or giving false information to screen offender---Appreciation of evidence---Recovery of piece of rope on the pointation of accused---Accused was charged for committing murder of his wife/daughter of complainant---Appellant led the police to a piece of rope on his pointation which was either used to murder the deceased or for the deceased to hang herself as in effect the cause of death was asphyxia which could have been caused by manual strangulation or suicide by being hung from a fan as was the defence case---Independent witness, who lived above the appellant, was not used as a mashir on a single occasion when he was ready, available and on the spot and the police instead called mashirs who lived a distance of three hours away, all of whom were related to the complainant---Appeal against conviction was allowed, in circumstances. Ameet Kumar for Appellant. Muhammad Iqbal Awan, Addl. Prosecutor General, Sindh for the State. Date of hearing: 23rd October, 2024. Judgment Muhammad Karim Khan Agha, J .--- Appellant Bashir Ahmed was tried in the Sessions Court, Thatta in Sessions Case No.306 of 2013 in respect of Crime No. 140/2013 registered under Sections 302 and 201 P.P.C. at P.S. Thatta and after full-fledged trial vide judgment dated 14.03.2016, he was convicted under section 302(b) P.P.C. and sentenced to suffer R.I. for life with fine of Rs.100,000/- as compensation in terms of Section 544 Cr.P.C. which would be paid to the legal heirs of deceased and in case of default, the accused shall suffer further S.I. for six months. He was also convicted under Section 201 P.P.C. and sentenced to suffer R.I. for four years with fine of Rs.5000/- and in case of default of payment, he shall suffer further S.I. for a period of one month more. Both the sentences were to run concurrently; however, the benefit of Section 382-B Cr.P.C. was extended to the appellant. 2. The brief facts of the prosecution case are that complainant Haji Noor Ahmed son of Haji Abdul Fattah Brohi lodged FIR on 19.08.2013 at 1645 hours, stating therein that his daughter Mst.Haleema; aged about 32/33 years was married with his cousin namely Bashir Ahmed Brohi, the spouse were usually residing in their Village Station Road Bochari town, Taluka Parro, District Shaheed Benazirabad and from the said wedlock, two sons and three daughters were born. Per him, accused Bashir Ahmed Brohi used to maltreat his daughter; who also complained him several times, later-on his cousin Bashir Ahmed along with his family members shifted to Thatta. On 13.08.2013 the complainant, was available at his village where he received information that his daughter namely Mst. Haleema has died. Accordingly, complainant, his son Ali Asghar Brohi and cousin Nabi Bux Brohi along with his family came to Thatta where they came to know that Bashir Ahmed Brohi has taken away the dead body to the house of husband of his sister at Pathan Colony, the complainant party, therefore went to Pathan Colony where Bashir Ahmed and others were ready to perform Namaz-e- Janaza, they sent their ladies in the house and accompanied with then, to perform Namaz-e-Janaza and buried the dead body at Makli graveyard. After burial ceremony, accused Bashir Ahmed Brohi informed the complainant that he went to Aamri Stop for purchasing milk in the morning at 06:00 am and returned back 08:00 am, his wife (deceased) was in the room and door was inside locked, he called her but she did not open the door, then he saw from the ventilator that his wife has committed suicide by hanging herself through rope with fan. The complainant further disclosed that after three days they returned to their village along with family where the complainant came to know that accused Bashir Ahmed Brohi had committed the murder of deceased lady in the above said manner. Hence, the complainant came at Police Station Thatta and registered the FIR. 3. After completion of investigation I.O. submitted charge sheet against the accused person to which he plead not guilty and claimed trial. 4. The prosecution in order to prove its case examined 8 witnesses and exhibited various documents and other items. The statement of accused was recorded under Section 342 Cr.P.C in which he denied all the allegations levelled against him claiming that his wife had committed suicide and he did not murder her. 5. After hearing the parties and appreciating the evidence on record the trial court convicted the appellant and sentenced him as stated earlier in this judgment and hence, the appellant has filed this appeal against his conviction and sentence. 6. The facts of the case as well as evidence produced before the trial court find an elaborate mention in the impugned judgment passed by the trial court and, therefore, the same may not be reproduced here so as to avoid duplication and unnecessary repetition. 7. Learned counsel for the appellant has contended that the appellant is completely innocent and that his wife committed suicide; that the FIR was delayed by an unexplained period of 6 days; that the medical reports do not definitively find that the deceased was murdered; that the appellant had no motive to murder his wife; that there was no eye-witness to the deceased's death; that the rope was foisted on him and that for any or all of the above reasons the appellant should be acquitted of the charge by being extended the benefit of the doubt. In support of his contentions he placed reliance on the cases of Lal Khan v. The State (2006 SCMR 1846), Peeru Ram v. The State (2019 PCr.LJ 325) and one unreported judgment of Sindh High Court passed in Cr. Jail Appeal No.S-01 of 2011 Re: Bhawan Das v. The State. 8. On the other hand learned APG appearing on behalf of the State has fully supported the impugned judgment by relying on the evidence on record and contended that the appeal is without merit and should be dismissed. He has placed reliance on the case of Deen Mohammad v. The State (2016 P Cr. LJ Note-86). 9. I have heard the arguments of the learned counsel for the parties, gone through the entire evidence which has been read out by the appellant's counsel, and the impugned judgment with their able assistance and have considered the relevant law including the case law cited at the bar. 10. I find that there are two main issues in this case. The first is whether the deceased committed suicide or was murdered and if murdered, secondly whether the prosecution have proved beyond a reasonable double that it was the appellant who murdered the deceased/his wife at the said time, date and location as per charge. 11. After my reassessment of the evidence I find that the prosecution has NOT proved the charge beyond a reasonable doubt namely that the deceased was murdered by the appellant as opposed to committing suicide for which the appellant was convicted keeping in view that each criminal case is based on its own particular facts, circumstances and evidence for the following reasons. (a) That the complainant in his evidence states that on 13.08.13 he was informed by his son Asghar Ali Brohi, who had been informed by someone else, that his daughter had died. Hence he left his village in Shaheed Benazirabad for Thatta where his daughter Mst. Haleema (deceased) was living with her husband/accused and reached the accused house after about 3 hours. The complainant finding the deceased house was locked went to house of Behnoi namely Sher Muhammed where funeral prayers were offered and the dead body of the deceased was brought and buried. The accused was at the burial ceremony and they stayed behind for three days to receive condolences before returning home. He also inquired that how Mst. Haleema expired from the accused, who disclosed to him that on the day of Incident, at about 06:00 am, he went to purchase milk, his wife and children were present at the house. He further disclosed that he returned at about 08:00 am to the house and knocked-up the door but his wife did not open. He further disclosed that he scaled-up from the ventilator of bathroom situated at the southern side of the house. He disclosed further that when he entered inside the room he saw that his wife was hanged off with wings of the fan. He further disclosed that he removed the dead body from the position and then shifted to the house of his Behnoi at Pathan Colony. After three days, we went back to our village. I received an anonymous call that it was not the case of suicide but of murder by the accused. Then on 19.08.2013 I lodged the FIR at police station of the murder of my daughter against the accused. Hence the delay in the FIR has been fully explained and is not fatal to the prosecution case. (b) One of the key issues is how the deceased actually died. Was it suicide or murder by strangulation and if so by whom? (c) From the outset the appellant has maintained that his wife committed suicide when he was out of the house and when he reached the house the house was locked and he entered via the ventilator. This method of entry was corroborated by PW 6 Saleh Mohammed who was an independent witness and who lived above the appellant and would have no reason to give false evidence. (d) There was no eye-witness to the incident and no last seen evidence connecting the accused with his wife in respect of the incident. The house was locked from the inside which only the wife could have done. (e) According to the complainant the deceased complained to him about the accused mal treating her. This however is not supported by any other evidence on record. For example, the complainant had been living in his village whilst the deceased had moved to Thatta with her husband about 20 years ago. PW 6 Saleh Muhammed who lived immediately upstairs from the appellant did not hear any arguments or quarrel coming from the house below where the accused and the deceased was living and the medical evidence did not support any recent acts of violence against the deceased apart from the neck injury. Hence their was no motive for the appellant to murder his wife especially as they had five children between them. (f) The FIR lead to the exhumation of the body of the deceased on orders of the court and on 02.10.13 the body of the deceased was exhumed by a team of medical experts who also carried out a post mortem. The Dr's concerned who gave evidence PW 4 Dr.Nasreen Baloch and PW 7 Dr.Summaya found as under as regards the injuries to the deceased; "Surface wounds and injuries. Injury No.1. Contusions with deep blackish red discoloration on the upper lateral aspect of neck at the level of angle of Mandeville and under chin in the manner of imprint of rope on right and left sides., Injury No.2. Contusions 8 cm x 6 cm, blackish red in color on the right shoulder, anterior aspect. Injury No.3. Contusions 6 cm x 6 cm, blackish red on left shoulder anterior aspect.... Opinion. After examination the board was of the opinion that the death occurred due to asphyxia which resulted from constrictions of neck and hard and blunt injuries leading to cardio-respiratory failure......... Cross to Mr. Faisal Ahmed Memon advocate for the accused. Except the marks of injuries I have noted at the time of exhumation of dead body I did not find any other marks of injuries on the dead body of the deceased lady.......... Cross question under Section 161 Qanun-e-Shahadat Order. Q. Whether in your opinion, may it be case of suicide or murder? Ans: On the basis of injury No.1 where manner of imprint of rope on both sides of the neck is horizontal, is strongly suggestive of the manner of death being homicide." (g) Based on the above medical evidence without an eye-witness to the murder and the appellants story that the deceased hung herself I find that the prosecution have not been above to prove beyond a reasonable doubt that the deceased was murdered and did not commit suicide as per the defence case. Even the medical evidence was not definitive of murder but was only highly suggestive which did not rule out the fact that the deceased's injuries might have been caused by her committing suicide by her hanging herself by rope from a fan as is the defence case. In this respect reliance is placed on the case of Lal Khan (Supra) which held as under in material part; "The hanging is most common form of suicide whereas homicidal hanging is rare which may occur in very unusual circumstances and in the medical jurisprudence, no definite opinion can be given on the basis of ligature mark around the neck whether death was homicidal or suicidal. The causation of an injury found on the person of deceased, may be either homicidal or suicidal and in that the prosecution is under heavy burden to prove that the death was homicide and not suicide. " (h) Even if the deceased was murdered the only piece of evidence against the appellant is that he apparently lead the police to a piece of rope on his pointation which was either used to murder the deceased or for the deceased to hang herself as in effect the cause of death was asphyxia which could have been caused by manual strangulation or suicide by being hung from a fan as is the defence case. (i) It also raises eye brows that the independent witness PW 6 Saleh Muhammed who lived above the appellant was not used as a mashir on a single occasion when he was ready, available and on the spot and the police instead called mashirs who lived a distance of 3 hours away all of whom were related to the complainant. (j) The anonymous person who first informed the complainant that the accused murdered the deceased was never found by the police and consequently his evidence which might have been vital to the prosecution case was lost. (k) Any person in the accused village could have murdered his wife if she did not commit suicide 12. For the reasons discussed above I find that the prosecution case is doubtful and by extending the benefit of the doubt to the appellant I acquit him of the charge, the impugned judgment is set aside, the appeal is allowed and the appellant shall be released unless wanted in any other custody case. JK/B-1/Sindh Appeal allowed.

Summary: (a) Civil Procedure Code (V of 1908)--- ---S. 115---Limitation Act (IX of 1908), S. 5 & First Sched., Art. 162-A---Civil revision---Limitation---Delay---Pleas of summer vacations and illness/old age were taken by the petitioner in application for condonation of delay---Validity---No record of ailment of petitioner was appended with the application and mere mentioning of advanced age of the petitioner was not an excuse---Ignorance of office process was not a good ground for condonation of delay, as such the delay was not condoned as after expiry of statutory period of limitation the verdicts in question had attained the status of past and closed transaction---After expiry of the period of limitation a valuable right stood accrued in favour of the opposite party which could not be taken away rather convincing reasons had to be furnished in this regard and the absence thereof disentitled a delinquent litigant from discretionary relief---Civil revision was blatantly time barred---Application for condonation of delay was dismissed along with the civil revision, in circumstances. Diamond International Corporation Limited v. State Bank of Pakistan through Senior Deputy Director 2001 SCMR 659 and Amir Ullah Jan v. Member Board of Revenue (Colonies) Punjab and 3 others PLD 2013 Lahore 445 rel. (b) Civil Procedure Code (V of 1908)--- ----S.115---Limitation Act (IX of 1908), S.5 & First Sched. Art.162-A ---Civil revision---Limitation---Delay---Decision on merits---Scope---Present revision petition was blatantly time barred, as such there was no need to decide the issue raised therein on merits. Muhammad Din v. Abdul Ghani and another 2012 SCMR 1004 rel. (c) Limitation--- ---Principles---Law of limitation has a significant role in the administration of justice and an aggrieved person has to approach the competent forum within the period prescribed in the law and against the adverse order a party could not be allowed to sleep over it for an indefinite period and challenge it at the time of its own choosing rather the aggrieved party is placed under a legal obligation to avail its legal remedy against the adverse decision/order/decree within the prescribed period of limitation before the proper forum---After expiry of the prescribed period of limitation tangible rights stand accrued in favour of the opposite party and the said right cannot be frustrated merely on whimsical and unsubstantiated grounds. Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen 2006 SCMR 631; Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others 2013 SCMR 587; Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi 2014 SCMR 1594 and Ashiq Hussain Sabri v. Secretary Health, Government of the Punjab and 8 Others PLD 2011 Lah. 490 rel. (d) Limitation--- ----Plea of technicality---Scope---Significance of limitation cannot be mitigated by attributing it as merely a technicality rather it frustrates a remedy of an indolent party and also debars the jurisdiction of an adjudicating forum to take cognizance of the matter on merits---Law of limitation cannot be bypassed to rescue an indolent person who remains sleeping over the infringement of his rights. Ainuddin and others v. Abdullah and another 2019 SCMR 880 and Asad Ali and 9 others v. The Bank of Punjab and others PLD 2020 SC 736 rel. Shahid Rafique Mayo for Applicants/Petitioners. Order C.M. No. 1 of 2024 and Main Case Ch. Muhammad Iqbal, J .--- Through this application under Section 5 of the Limitation Act, 1908, the applicants seek condonation of delay in filing the titled Civil Revision. 2. Brief facts of the case are that petitioners/plaintiffs filed a suit for specific performance on the basis of agreement to sell against the respondents/defendants which was decreed by the learned Civil Judge, Nankana Sahib vide judgment and decree dated 29.06.2015. Respondents Nos.1 and 2 filed an application for setting aside ex-parte judgment and decree in which notices were issued. Petitioners and respondents Nos.4 to 7 appeared and filed contesting written reply of the said application while respondent Nos.3 did not appear and he was proceeded against ex-parte on 03.02.2017. The trial court vide order dated 15.09.2018 dismissed the application of respondents Nos.1 and 2. Respondents Nos.1 and 2 challenged the said order through an appeal which was accepted by the appellate court vide judgment dated 04.12.2020 and case was remanded to the trial court to frame issues and then decide the case after hearing the parties. In post remand proceedings, the trial court after framing the issues and recording the evidence of both the parties vide order dated 13.04.2023 dismissed the application of respondents Nos.1 and 2 with costs of Rs.10,000/-. Against the said order, respondents Nos.1 and 2 filed an appeal which was accepted by the appellate court vide judgment dated 18.05.2024 who by setting aside the order dated 13.04.2023 of the trial court accepted the application for setting aside the judgment and decree dated 29.06.2015 and ex-parte proceedings dated 11.03.2014. Hence, this civil revision. 3. Arguments heard. Record perused. 4. As per record, the learned Additional District Judge, Nankana Sahib passed the impugned judgment on 18.05.2024 and the petitioners applied for obtaining the certified copy on 21.05.2024 which was prepared on 10.06.2024. The petitioners filed instant civil revision on 07.10.2024 after 122-days of passing of the above dictum whereas Article 162-A of the Limitation Act, 1908 [The Limitation (Punjab Amendment) Act 2018] provides a period of only 90 days for filing of the Civil Revision from the date of decision sought to be revised, as such instant revision petition is barred by limitation by 32 days. 5. The applicants filed civil miscellaneous application [C.M. No.1/2024] under Section 5 of the Limitation Act, 1908 for condonation of delay on the ground that due to misunderstanding of summer vacations as well as illness of petitioner No.ii and advance age of about 70 years of petitioner No.ii, the civil revision could not be filed within time. The delayed filing the civil revision was neither intentional nor deliberate but due to unavoidable circumstances stated hereinabove, suffice it to say that no record of ailment of petitioner No.ii is appended with the application and mere mentioning of advanced age of the petitioner No.ii is not an excuse. Further, it was obligation of the applicants/petitioners or their counsel to keep themselves abreast of the proceedings but they displayed visible negligence. Thus, the ignorance of office process is not good ground for condonation of delay, as such the delay is not liable to be condoned as after expiry of statutory period of limitation the verdicts in question has attained the status of past and closed transaction. Reliance is placed on the case titled as Diamond International Corporation Limited v. State Bank of Pakistan through Senior Deputy Director (2001 SCMR 659). Moreover, after expiry of the period of limitation a valuable right stood accrued in favour of the opposite party which (right) cannot be taken away rather convincing reasons are to be furnished in this regard and the absence whereof disentitled a delinquent litigant from discretionary relief, as such the Civil Revision before this Court is blatantly time barred. Reliance is placed on the case titled as Amir Ullah Jan v. Member Board of Revenue (Colonies) Punjab and 3 others (PLD 2013 Lahore 445), the relevant portion whereof is reproduced as under:- "It is also clear that the conduct of a party that was so indolent as not to inquire about the fate of its case from its counsel; and after his demise by failing to engage a fresh counsel; and thereafter to delay for two decades the filing of present application for restoration of the petition actually tantamounts to abandonment of the cause. There is no merit for restoration of the writ petition which is apparently a speculative venture that is launched by an attorney who is interested to revive the proceedings in respect of land which is admittedly not in possession of the petitioner and was allowed to be retained by the respondent No.4. At best an interim order was made to prevent further allotment of such land." 6. Furthermore, law of limitation has a significant role in the administration of justice and an aggrieved person has to approach the competent forum within the period prescribed in the law and against the adverse order a party could not be allowed to sleep over it for an indefinite period and challenge it at the time of its own choosing rather the aggrieved party is placed under legal obligation to avail its legal remedy against the adverse decision/order/decree within the prescribed period of limitation before the proper forum, whereas after expiry of the prescribed period of limitation, a tangible right stood accrued in favour of the opposite party and the said right cannot be frustrated merely on whimsical and unsubstantiated grounds. Reliance is placed on cases cited as Shahid Pervaiz alias Shahid Hameed v. Muhammad Ahmad Ameen (2006 SCMR 631), Messrs Blue Star Spinning Mills Ltd. v. Collector of Sales Tax and others (2013 SCMR 587), Ghulam Hussain Ramzan Ali v. Collector of Customs (Preventive), Karachi" (2014 SCMR 1594) and Ashiq Hussain Sabri v. Secretary Health, Government of the Punjab and 8 others (PLD 2011 Lahore 490 (D.B). 7. Further, the significance of limitation cannot be mitigated by attributing it mere a technicality rather it frustrates a remedy of an indolent party and also debars the jurisdiction of an adjudicating forum to take cognizance of the matter on merits and law of limitation cannot be bypassed to rescue an indolent person who remained sleeping over the infringement of their rights. Reliance in this regard is placed on cases cited as Ainuddin and others v. Abdullah and another (2019 SCMR 880) and Asad Ali and 9 others v. The Bank of Punjab and others (PLD 2020 SC 736). 8. As the instant revision petition is blatantly time barred, as such there is no need to decide the issue raised therein on merits. Reliance is placed on the case titled as Muhammad Din v. Abdul Ghani and another (2012 SCMR 1004) 9. In view of above, no case for condonation of delay is made out in favour of the applicants/petitioners, as such application (C.M.No.1/2024) for condonation of delay is dismissed. Consequently, the main Civil Revision is also dismissed being barred by time. SA/M-10/L Revision application dismissed.

Summary: (a) Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Appreciation of evidence---Fair trial---Statements of witnesses recorded in absence of defence counsel---Accused was charged for committing murder of the cousin of complainant due to disagreement over grass-cutting---From the perusal of the evidence it appeared that the evidence of three witnesses had been recorded in the absence of the defence counsel--Thus, it was against the principle of fair trial and fair opportunity--Counsel for the complainant and prosecution department were confronted with the legal position of the case that the examination in chief of three witnesses were recorded in the absence of defense counsel, and their cross-examination was reserved on the request of his associate which was later on conducted---In a fair and transparent criminal justice system, the right to confrontation was the hallmark of fair trial protection---Right to confrontation was considered an integral element of the right to a fair trial---In the instant case, no doubt a counsel was engaged by the appellant to defend him, but he on the date when the case proceeded could not appear before the Trial Court, and in his absence, the examination in chief of the said witnesses were recorded in a capital sentence case---In such situation, the examination-in-chief of the witnesses, so recorded by the Trial Court, in the absence of legal counsel of the appellant could hardly be said to be under the requirement of law---Additionally, S.340 of the Cr.P.C. grants every accused person the right to be "defended" by a lawyer---Second issue was whether the crime weapon, a hatchet, was contaminated with human blood---Inconsistencies identified included discrepancies between the Chemical Examination Report, the Lash Chakas Form, the Danishtnama, the memo of dead body examination, and the memo of securing the crime weapon---Said discrepancies casted doubt on the conclusion that the hatchet contained human blood---To resolve said inconsistencies, the judicial propriety demanded that, the matter should be remitted to the Trial Court for further proceedings---Trial Court should record the examination in chief of said three witnesses and provide opportunity to defence counsel to cross-examine them---Said fact would provide a clear understanding of the circumstances surrounding the recovery and examination of the hatchet---Chemical Examiner should be examined by the Court to clarify the findings of their report and address any inconsistencies with the other documents---Chemical Examiner should explain the methodology used, the results obtained and the basis for their conclusion regarding the presence or absence of human blood on the hatchet---Defence counsel should be allowed to cross-examine the Chemical Examiner to challenge their findings and explore any potential weaknesses in their methodology or conclusions---Said fact would provide an opportunity for the defence to present their arguments and raise doubts about the reliability of the evidence---By following these steps, the Trial Court could ensure that the inconsistencies were thoroughly investigated, the evidence was properly evaluated and justice was served---Appeal was allowed by setting aside conviction and sentence and matter was remanded to the Trial Court for decision afresh---Appeal was disposed of accordingly. Muhammad Arshad v. Qasim Ali and others 1992 SCMR 814; Muhammad Ashraf Javeed and another v. Muhammad Umar and others 2017 SCMR 1999; Irfan Ali v. The State 2015 SCMR 840; Khalid Mehmood v. The State and others 2021 SCMR 810; Muhammad Asif v. The State 2017 SCMR 486; Mst. Rukhsana Begum and others v. The State 2017 SCMR 596; Riasat Ali and others v. The State and another 2024 SCMR 1224 and Nadir Khoso and others v. The State and others 2024 YLR 1565 ref. Ghulam Rasool Shah v. The State 2011 SCMR 735 and Muhammad Bashir v. Rukhsar PLD 2020 SC 334 rel. (b) Administration of justice--- ----If things, which are to be done in a manner prescribed by law, are done otherwise, it would be illegal. Altaf Ahmed Shahid Abro for Appellant. Dhani Bakhsh Mari, Assistant Prosecutor General, Sindh for the State. Om Parkash H. Karmani along with Complainant Nanji. Date of hearing: 26th September, 2024. Judgment Adnan-ul-Karim Memon , J.--- Appellant Hemoon has filed the instant Criminal Jail Appeal against the judgment dated 14.11.2019, passed by the learned Additional Sessions Judge-I/ MCTC Umerkot in Sessions Case No. 89 of 2019 (Re-The State v. Hemoon) arising out of FIR No.27 of 2019 under section 302 P.P.C. of Police Station Shadi Palli, whereby the appellant was convicted and sentenced in following terms:- "In view of the above-discussed points which are answered as affirmative, I am of the opinion that prosecution has successfully established the charge against appellant Hemoon for murder of deceased Thaku. In order to determine the quantum of sentence it is to be seen that appellant had caused only single hatchet blow and that too blunt side which is not gruesome and brutal murder. Such situation gave rise to the mitigating circumstances, due to which capital punishment of death would be harsh. Therefore, taking a lenient view I convict, the appellant Hemoon son of Heero alias Habro Kolhi under section 265-H(2) Cr.P.C. for offence punishable under section 302(b) P.P.C. and sentence him to life imprisonment as Tazir and to pay Rs.100,000/- as compensation under section 544(A) Cr.P.C with direction to pay the same to legal heirs of deceased. In case of default, he shall suffer six months more simple imprisonment. The benefit of section 382-B Cr.P.C is extended to the appellant. The appellant is produced in custody and remanded back to Central Prison Hyderabad to serve out the sentence as per law. Copy of the judgment be supplied to convicted appellant free of cost under receipt. 2. The facts of the case are that On September 4, 2019, Hemoon, armed with a hatchet, attacked Thaku, a cousin of the complainant, in a village. The attack was motivated by a previous disagreement over grass-cutting. Thaku sustained fatal injuries and died later in a hospital. It is alleged that Nanji (Thaku's brother), Kewal, and Shevo witnessed the attack and attempted to intervene but were unsuccessful. The incident was reported to the police on the same day, and a post-mortem examination was conducted at the Taluka Hospital in Pithoro, the Investigating Officer (IO) examined the dead body of the deceased, prepared necessary documents, and collected evidence. He then transferred the case to Inspector Azizullah Seenharo, who continued the investigation by securing evidence, recording statements, arresting the suspect, and recovering the murder weapon (hatchet). The hatchet was sent for chemical analysis, and the IO submitted a charge sheet against the appellant to the concerned Magistrate, who referred the case to the Sessions Judge for trial. 3. The appellant was formally charged with a crime. He pleaded not guilty and requested for fair trial. During the trial, the prosecution examined PW-1 Dr. Mahadev as Ex.03. He produced a police letter and post-mortem report at Ex.03-A and 03-B respectively. PW-2 Tapedar Hamzo was examined at Ex.04, he produced the letter of police and site plan as Ex.04-A and 04-B. PW-03 complainant Nanji was examined at Ex.05. He produced FIR at Ex.05-A. PW-04 Kewal Ram was examined at Ex.06, he produced a receipt of the dead body, memo of site inspection, memo of arrest, and memo of recovery as Ex.06-A to 06-D respectively. PW-5 Kirshan was examined as Ex.07, he has produced lash chakas form, Danishtnama, memo of the dead body, and memo of cloths of deceased as Ex.07-A to 07-D. PW-07 IO/ ASI Muhammad Sharff was examined as Ex.09. He produced D.D entries Nos. 09 and 10 over one leaf Dated: 04-09-2019 as Ex.09-A and D.D entry No. 13 dated: 04-09-2019 as Ex.09-B. The learned ADPP had given up evidence of PW Shevo through statement as Ex.10. PW-08 I.O/Inspector Azizullah Seenharo was examined as Ex.11. He produced a letter addressed to the chemical examiner, report of the chemical examiner and his movement D.D entries as Ex.11-A to 11-F. 4. The statement of appellant was recorded under section 342 Cr.P.C. as Exh.13, appellant denied the allegations levelled by the prosecution and claimed to be innocent. According to him, the deceased had sustained injury due to a road accident and died, but the complainant due to a dispute with him over an outstanding amount, falsely implicated him in this case to settle the dispute as per his wish. However neither he examined himself on oath as required under section 340(2), Cr.P.C. nor lead defense evidence. After hearing the parties, the learned trial Court passed impugned judgment and convicted the appellant as discussed supra. 5. At the outset the learned counsel for the appellant argued that the absence of defense counsel during the examination-in-chief of witnesses in a capital murder case violated the accused's fundamental right to a fair trial. He emphasized that the defense counsel's presence is crucial for ensuring the integrity of the evidence and preparing a strong case. Additionally, the absence of bloodstains on the alleged crime weapon, despite a chemical report suggesting the presence of blood, creates a reasonable doubt in the prosecution's story, potentially benefiting the appellant. He argued that the prosecution failed to prove the appellant's guilt beyond a reasonable doubt. He criticized the prosecution witnesses as biased and questioned the credibility of their testimonies. He also pointed out inconsistencies in the timeline of events and the evidence presented. He emphasized the lack of independent witnesses, bloodstains, and the possibility of a prior dispute between the deceased and the appellant. He further argued that the sketch of the scene did not indicate the appellant's presence, and the medical officer admitted that the deceased's injuries could have been caused by a fall or other means. However, he highlighted the chemical report, which confirmed human blood on the crime weapon. However, the Lash chakas form, Danishtnama, memo of dead body examination, and memo of recovery of hatchet do not transpire that these items were stained with any blood at the time of recovery, which shows false involvement of the appellant in the present case. He relied upon the cases of Muhammad Arshad v. Qasim Ali and others [1992 SCMR 814], Muhammad Ashraf Javeed and another v. Muhammad Umar and others [2017 SCMR 1999], Irfan Ali v. The State [2015 SCMR 840], Khalid Mehmood v. The State and others [2021 SCMR 810], Muhammad Asif v. The State [2017 SCMR 486], Mst. Rukhsana Begum and others v. The State [2017 SCMR 596], Riasat Ali and others v. The State and another [2024 SCFMR 1224] and Nadir Khoso and others v. The State and others [2024 YLR 1565], Therefore, he prayed for the acquittal of the appellant on the grounds of reasonable doubt. 6. At the initial stage, the learned Additional Prosecutor General assisted by the learned counsel for the complainant argued that the appellant' was named in the FIR as the killer, supported by medical and eye-witness evidence. The crime weapon, a hatchet, was recovered at the accused's pointing, stained with blood. The witnesses were naturally at the scene as it was near their homes. They requested the accused's conviction be maintained. 7. I have heard the learned counsel for the parties and perused the record with their assistance and case law cited at the bar. 8. PW-1 Dr. Mahadev deposed in cross-examination that except for the fatal injury, no other mark of violence was seen on the dead body. He admitted that the dead body was 06-08 hours old and that possibly such injury could have been caused by falling from a wall or otherwise; he admitted that he prepared a post-mortem report after consulting with a senior medical officer. He admitted that he did not preserve the viscera. He admitted that blood was oozing from the wound and left ear of the deceased. 9. PW-03 Complainant Nanji deposed in the cross-examination that he did not make a complaint to the police on 03.09.2019 when hot words were exchanged between the accused and deceased. He admitted that he did not make a complaint regarding the hot word exchanged between the accused and the deceased to the family members of the accused. He admitted that he along with PWs Thakoo, Kewal and Shivo went to their land. He admitted that Deceased Thakoo was his brother PW Kewal was/ is his brother and PW Shivo was/ is his son. He admitted that the accused Hemoon was/is his cousin. He admitted that he did not inform the police of the Police Station concerned when they shifted the dead body to Hyderabad. He admitted that the Police did not obtain his signature on paper while visiting place of incident. At the time of the site inspection, his brother Kewal and his son Shivo were present there. 10. PW-04 Kewal Ram admitted in the cross-examination that there was/ is no blood mark on the hatchet. 11. PW-5 Kirshan deposed in the cross-examination that the clothes of the deceased were sealed in Taluka Hospital Pithoro. 12. PW-06 Pirago deposed in the cross-examination that Dr. Mahadev sealed the clothes of the deceased. 13. PW-07 I.O/ASI Muhammad Sharif deposed in the cross-examination that the complainant had not come to the police station to obtain a police letter and he saw the dead body of deceased Thakoo in the mortuary. 14. PW-08 I.O/Inspector Azizullah Seenharo deposed in the cross-examination that village Idrees Nohri was near to place of incident. He did not enquire about the incident from the nearby villagers. He admitted that there was no dry blood mark on the hatchet. He admitted that the hatchet can be purchased from the market along with its handle. He admitted that he received the chemical report with a delay of about 20 days. 15. The legal issue in this case is whether the examination-in-chief of witnesses recorded in the absence of the accused's legal counsel was/violates his right to a fair trial. 16. The learned counsel for the appellant pointed out that the proceedings initiated against the appellant by the trial court were/are not under the law, as the associate of the defense counsel did not have the legal authority to record the examination in chief of the witnesses in the absence of the defense counsel. This violated the accused's right to a fair trial under Article 10-A of the Constitution. 17. From the perusal of the evidence it appears that the evidence of Pws Nanji, Kewal Ram and Kirshan had been recorded in the absence of the defense counsel. It is against the principle of fair trial and fair opportunity, therefore it is suggested that the trial has been vitiated as the case involves capital punishment, in view of the dictum as laid down in the case of Ghulam Rasool Shah v. The State (2011 SCMR 735) the Supreme Court has held as under:- "14. Undeniably, to ascertain eh truth or falsity to a charge the statements of the witnesses are judged by conducting cross-examination. It is always said to be the most powerful engine to test the credibility. Statements recorded without going through mill of cross-examination is bound to result in injustice and substantial injustice may occur to an accused. Safer principle is to allow cross-examination by granting reasonable opportunity. Similarly, provision of a defence counsel at State expenses should be out of lawyers having acumen, interest and some experience of trial of murder case. Though the accused have no choice claiming engagement of a particular counsel at State expenses yet he should be given the choice to select one of the counsel out of list of defence counsel maintained by the Court. 15. Having considered the case of the appellants, we are of the view that the appellants should be given time to engage a counsel privately of their own choice, failing which the learned trial Court shall provide them the defence counsel at state expenses of their choice, out of the list maintained by the Court. If the appellants fail to engage a counsel of their own or refuse to be represented by a defence counsel provided at State expenses, the Court will be at liberty to proceed with the trial, and the defence counsel so appointed shall be called upon to conduct cross-examination on prosecution witnesses and call for evidence in defence. 16. For what has been discussed above, we allow the appeals, set aside the judgment of the learned Courts below, and remit the case back to the trial Court for a de novo trial. Learned trial Court shall consider the question of its jurisdiction in terms of section 38 of the Anti-Terrorism Act, 1997, before framing of charge. The appellants shall be treated as, under trial prisoners". 18. At this stage, the learned counsel for the complainant and learned APG were confronted with the legal position of the case that the examination in chief of witnesses Nanji (Ex.05), Kewal Ram (Ex.06) and Kirshan (Ex.07) were recorded in the absence of defense counsel, and their cross-examination was reserved on the request of his associate which was later on conducted. 19. In a fair and transparent criminal justice system, the right to confrontation is the hallmark of fair trial protection. The right to confrontation is considered an integral element of the right to a fair trial. It was held in the case of Muhammad Bashir v. Rukhsar (PLD 2020 SC 334) by the Supreme Court of Pakistan that the right to confront one's accuser is a vital part of the right to a fair trial. It is well-settled law that a right provided under the statute cannot be abridged or taken away without an explicit provision of law, which in the present case is not available in statute books. A right provided under the law, in the absence of a provision to the contrary, cannot be impliedly taken away. Even otherwise, after declaring that the right to confront one's accuser is part of the right to fair trial ensured under Article 10-A of the Constitution, had there been any provision to abridge such right, it would have been ultra vires conflicting with the constitution. Besides in a murder case, under Paragraph 6 of Chapter VII of Federal Capital and Sindh Courts Criminal Circulars, could only be proceeded on the appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused at State expenses. In the instant case, no doubt a counsel was engaged by the appellant to defend him, but he on the date when the case proceeded could not appear before the learned trial Court, and in his absence, the examination in chief of the aforesaid witnesses were recorded in capital sentence cease. In that situation, the examination-in-chief of the witnesses, so recorded by the learned trial Court, in the absence of legal counsel of the appellant could hardly be said to be under the requirement of law. It is settled by now that things are to be done in a manner prescribed by law if done otherwise, would be illegal. In these circumstances, the appellant has the right to contend through his learned counsel that he has been denied the right to a fair trial. 20. Additionally, Section 340 of the Cr.P.C. grants every accused person the right to be "defended" by a lawyer. This is different from simply being "represented" by a lawyer. This right includes access to the lawyer for private consultations and sufficient time for the lawyer to prepare the case. The law provides guidelines on how the right to be defended should be implemented. The importance of ensuring that accused persons have adequate access to legal representation and sufficient time for their lawyers prepare their cases. This is crucial for upholding the principles of justice and ensuring that the accused person's rights are protected. Besides, there are inconsistencies between various documents related to a case involving a crime weapon. 21. The second issue is whether the crime weapon, a hatchet, was contaminated with human blood. The inconsistencies identified include discrepancies between the Chemical Examination Report, the lash chakas form, the danishtnama, the memo of dead body examination, and the memo of securing the crime weapon. These discrepancies cast doubt on the conclusion that the hatchet contained human blood. 22. To resolve these inconsistencies, the judicial propriety demands that, the matter should be remitted to the trial court for further proceedings. The trial court should record the examination in chief of PWs Nanji (Ex.05), Kewal Ram (Ex.06) and Kirshan (Ex.07) and provide opportunity to defence counsel to cross-examine them. This would provide a clear understanding of the circumstances surrounding the recovery and examination of the hatchet. The Chemical Examiner should be examined by the court to clarify the findings of their report and address any inconsistencies with the other documents. The Chemical Examiner should explain the methodology used, the results obtained, and the basis for their conclusion regarding the presence or absence of human blood on the hatchet. The defense counsel should be allowed to cross-examine the chemical examiner to challenge their findings and explore any potential weaknesses in their methodology or conclusions. This would provide an opportunity for the defense to present their arguments and raise doubts about the reliability of the evidence. By following these steps, the trial court can ensure that the inconsistencies are thoroughly investigated, the evidence is properly evaluated, and justice is served. 23. At this stage, both the parties present in court agreed to remit the case to the trial court for recording of evidence in the presence of counsel for the appellant and examination of chemical examiner on the subject issue. 24. For what has been stated above, I have no hesitation in holding that conviction and sentence recorded by the trial Court are not sustainable in law and the same is set aside, therefore by consent of the parties, the instant appeal is allowed to the extent that the case is remanded back to the trial Court with direction to record the evidence of prosecution witnesses Nanji, Kewal Ram and Kirshan and Chemical Examiner, in manner, discussed above. Thereafter, the learned trial Court after hearing the parties shall decide the case strictly under the law. The trial court is directed to conclude the trial within two months after receipt of this judgment without further delay on a day-to-day basis, if required, without any fail. Report qua the compliance of this judgment shall be submitted to the Additional Registrar of this Court. 25. This Criminal Jail Appeal is disposed of in the above terms. JK/H-2/Sindh Order accordingly.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Control of Narcotic Substances Act (XXV of 1997), S. 9(c)---Possession of narcotic substances---Bail, grant of---Further inquiry---Prosecution case was that 2240-grams charas was recovered from the possession of the accused/applicant---Alleged recovered narcotic substance was dispatched to the Chemical Examiner on the next day of its recovery---Chemical report was positive---However, there appeared a remarkable difference between the gross weight of charas i.e. 2240-grams, and the net weight of charas which weighed 2236-grams---In such circumstances, the question was whether the applicant could be saddled with possession and transporting the narcotic in terms of S.9(i)(3)(c) of the Control of Narcotic Substances (amended) Act, because the applicant had been shown to have been arrested and police allegedly found black shopper bag containing purported four big and one small dark brown pieces of charas, whereas the applicant claimed that he was arrested from his house---Besides, the defence had also levelled allegations against the prosecution witnesses of their malice in the matter---In the present case, the guilt or innocence of the applicants was yet to be determined by the Trial Court---Prosecution had not placed any material to establish that the applicant was a previous convict---Merely being involved in the same and similar offences in the past could not be a ground to refuse bail as the case could be decided on merit, therefore, the record could not be cited as precedent to refuse bail on that point---False implication could be judged by the Trial Court as the prosecution had sufficient time to comply with the law that the police and members of the Anti-Narcotics Force failed to record or photograph when search, seizure or arrest was made, as the law permitted the use of modern device or techniques---In the present case, the police had failed to apply the modern devices at the time of arrest and recovery of narcotic substance---Such facts and circumstances of the case had made it a case of further inquiry---Bail application was allowed, in circumstances. Shahzad Ahmed v. The State 2010 SCMR 1221; Ateebur Rehman v. The State 2016 SCMR 1424; Ayaz Khan and another v. The State 2020 SCMR 350; Zahid Sarfraz Gill v. The State 2024 SCMR 934; Deputy Director ANF Karachi v. Syed Abdul Qayum 2001 SCMR 14 and Haji Muhammad Nazir v. The State 2008 SCMR 807 rel. (b) Criminal Procedure Code (V of 1898)--- ----Ss. 497 & 498---Bail---Observations of the Court---Scope---Observations of the Court recorded in bail order are tentative and should not prejudice the case of either party. Shoukat for the Applicant. Shahzado Saleem, A.P.G, Sindh for the State. Date of hearing: 13th August, 2024. Order Adnan-ul-Karim Memon, J .--- The Applicant Muhammad Yousif seeks his release on post-arrest bail in FIR No.131 of 2024 for the offense under section 9 (i) 3-C of the CNS Act at Police Station Sanghar. His earlier bail plea was declined by the trial court vide order dated 22.07.2024 on the premise that the applicant had been arrested on the spot and 2240 grams of charas had been recovered from his possession. 2. It is inter-alia contended that the applicant is innocent and has falsely been implicated in this case, he next contended that the place of the incident is a thickly populated area but no independent private person is cited as mashir, which is a clear violation of Section 103, Cr.P.C. makes the case highly doubtful. He has further argued that if the recovered narcotic weighed along with the black polythene bag, if weighed might have come to certain grounds that require further probe; and, the Chemical report is at variance, so far as the net weight and gross weight are concerned, in that eventuality the case of the applicant falls within the ambit of Section 9(b) of the CNS amended Act, 2022 and falls within the ambit of Section 497(2), Cr.P.C. He has further argued that the degree of punishment under Section 9(C) of the CNS Act, increases with the quantity of narcotics recovered, that the proviso to Section 9 (c) entails that only when the quantity of narcotic exceeds 10 KG, then the punishment could be enhanced. He lastly prayed for allowing the bail application. 3. Learned Additional Prosecutor General opposed the grant of bail to the applicant on the premise that the applicant/accused had been arrested on the spot and 2240 grams of charas had been recovered from his possession by the police party headed by the complainant SIP Muhammad Iqbal of P.S Sanghar. He added that the quantity of alleged charas falls under section 9(i)(3) (c) of the CNC (amended) Act and the punishment of such offense is extended up to 14 years, which falls within the prohibitory clause of section 497, Cr.P.C. he argued that sentences not only falls within prohibitory clause of section 497, Cr.P.C but also attracts the bar contained in section 51(1) of the Ibid Act. As per the prosecutor, the material available on record is sufficient to connect the applicant/accused with the commission of the offense. He further argued that the applicant/accused has not made out the case for further inquiry and his application may kindly be dismissed. 4. Before dealing with the merits of the respective contentions, it would be appropriate to refer to the guidelines given by the Supreme Court, while considering the application for grant of bail. The guidelines are that while deciding a bail application this Court has to consider the facts of the case narrated in the FIR, statements recorded under Section 161, Cr.P.C., other incriminating material against the accused, nature, and gravity of charge and pleas raised by the accused. In this regard, I am fortified by the decision of the Supreme Court rendered in the case of Shahzad Ahmed v. The State [2010 SCMR 1221]. Keeping in view the above principle, the learned counsel for the parties has been heard and the record has been perused. 5. The accusation against the applicant is that on 30.05.2024, he was arrested by Police and recovered 2240 grams of charas, such FIR was lodged at Police Station Sanghar. The alleged narcotics were dispatched to the Chemical Examiner on the next day; such chemical report dated 20.6.2024 is positive. Even, though I have perused the aforementioned test report, however, there appears a remarkable difference between the gross weight i.e. 2240, and the net weight of Charas which weighs 2236 grams, which is at variance and this discrepancy requires to be taken care of by the trial court after recording the statement of the police officials. 6. In such circumstances, the question is whether the applicant can be saddled with possession and transporting the narcotics in terms of 9(i)(3) (c) of the CNS (amended) Act because the applicant has been shown to have been arrested and police allegedly found black shopper bag containing purported four big and one small dark brown pieces charas; whereas the applicant claims that he was arrested from his house. Besides the defense has also levelled allegations against the prosecution witnesses of their malice in the matter. The Supreme Court also in the case of Ateebur Rehman v. The State (2016 SCMR 1424), which involved the recovery of 1014 grams of heroin, and Ayaz Khan and another v. The State (2020 SCMR 350), which involved the recovery of 1100 grams of heroin, granted bail in both cases. In the present case, the guilt or innocence of the applicants is yet to be determined by the trial Court. The prosecution has not placed any material to establish that the applicant is a previous convict, merely being involved in the same and similar offenses in the past cannot be ground to refuse bail as this case can be decided on merit, therefore, the record cannot be cited as precedent to refuse bail on this point. In such cases, the false implication can be judged by the trial court as the prosecution had sufficient time to comply with the directions of the Supreme Court in the case of Zahid Sarfarz Gill v. The State 2024 SCMR 934 where it has been held that the police and members of the Anti-Narcoic Force failed to record or photograph at the time of search of the accused when search, seizure or arrest is made, as the law permits the use of modern device or techniques, however in the present case the police has failed to apply the test so directed by the Supreme Court therefore in all cases about Narcotics, this modern device is required to be used in future cases without fail in terms of the ratio of the decision of the Supreme Court in the case of Zahid Sarfaraz Gill. 7. No doubt, the offense of trafficking the narcotic is a heinous one and affects society at large but it is a settled principle of law that every case is to be decided on its facts and circumstances. Again, in the case of Deputy Director ANF Karachi v. Syed Abdul Qayum, reported in 2001 SCMR 14, which was later, the Supreme Court ruled that despite the provisions contained in Section 51 of the Control of Narcotic Substances Act, 1997, the Sessions Court and High Court have the power to grant bail. For the sake of convenience and ready reference, the relevant part of the judgment is given below: "Moreover, this Court in the case of Gul Zaman v. The State reported in 1999 SCMR 1271, has elaborately dealt with the application of sections 496, 497 and 498, Cr.P.C. in view of the bar contained in section 51 of the Act and it has been unanimously held that despite the provisions contained in section 51 of the Act, the Sessions Court and High Court have the power to grant bail." 8. Since the judgment rendered by the Supreme Court directed to record or take photographs at the time of search of the accused when search, seizure, or arrest is made as the law permits the use of modern devices or techniques but the police failed and neglected to adhere the dicta laid down by the Supreme Court, which is a constitutional command under Article 189 of the Constitution, therefore, appreciating whether the applicant was arrested with charas from his possession requires deeper appreciation. It is a well-settled principle of law that mere heinousness of offense is no ground to reject the bail plea. The basic concept of bail is that no innocent person's liberty is to be curtailed until and unless proven otherwise. In principle bail does not mean acquittal of the accused but only change of custody from police to the sureties, who on furnishing bonds take responsibility to produce the accused whenever and wherever required to be produced. On the aforesaid proposition, I am fortified with the decision of the Supreme Court on the case of Haji Muhammad Nazir v. The State (2008 SCMR 807). 9. Additionally, the essential prerequisite for the grant of bail by subsection (2) of section 497, Cr.P.C. is that the court must be satisfied based on the material placed on record that there are reasonable grounds to believe that the accused is not guilty of an offense punishable with death or imprisonment for life. The condition of this clause is that sufficient grounds exist for further inquiry into the guilt of the accused which would mean that question should be such that it has nexus with the result of the case and can show or tend to show that the accused was not guilty of the offense with which he is charged. Grant or rejection of bail is a discretionary relief but such discretion should be exercised fairly and judicially. The word discretion when applied to court means sound discretion judiciously guided by law and to lessen the hardship of the people. It is the well-settled and basic principle of law that the bail is not to be refused as punishment. 10. In view of the above, the arguments of the learned Prosecutor that the bar contained in Section 51 (1) of CNSA is applicable is without any substance in the light of the ratio of the judgment rendered by the Supreme Court in the case of Zahid Sarfarz Gill supra as the prosecution failed to comply the law laid down by the Supreme Court, which was decided on 22.11.2023 whereas the subject FIR was registered in the year 2024, which shows that either prosecution is ignorant the law laid down by the Supreme Court or deliberately avoiding to adhere the principle of law, besides the trial Court has completely ignored the judgment of the Supreme Court, which apathy, therefore, the benefit should go to the accused at the bail stage. 11. For what has been discussed above in the preceding paragraphs and the facts and circumstances of the instant case make it a case of further inquiry Accordingly, the applicant Muhammad Yousif is granted post-arrest bail, in the case arising out of FIR No.131 of 2024 for the offense under section 9 (i) 3-C of the CNS Act at Police Station Sanghar, subject to his furnishing bail bond in the sum of Rs. 100000/- (One Hundred Thousand Rupees) with one more surety in the like amount to the satisfaction of the Trial Court. 12. The observation recorded hereinabove is tentative and shall not prejudice the case of either party at trial. However, the learned trial Court shall endeavor to examine the complainant positively within one month. If the charge has not been framed, the same shall be framed before the date so fixed by the trial Court, and a compliance report shall be submitted through the Additional Registrar of this Court. The Additional Registrar shall ensure compliance with the order within time. JK/M-10/Sindh Application allowed.

Summary: Criminal Procedure Code (V of 1898)--- ----Ss. 561-A & 154---Pakistan Telecommunication (Re-organization) Act (XVII of 1996), Ss.31(1)(a), 31(6) & 58---Penal Code (XLV of 1898), Ss. 419 & 420---Inherent power of High Court---Quashing of FIR or investigation of criminal case---Scope---Complainant lodged FIR alleging fraud and misrepresentation in transfer of SIM and the petitioner along with others were nominated as accused in the said FIR---Petitioner contended that subject matter of FIR required investigation and adjudication by Pakistan Telecommunication Authority only and in such like cases FIR was barred under such law---Validity---Complete and comprehensive mechanism given in the Pakistan Telecommunication (Re-organization) Act, 1996, has been followed while processing the case of the respondent/complainant of FIR---Change of ownership of SIM is regulated under R.12 of Subscriber Antecedents Verification Regulations, 2015 which authorizes the operators to change the ownership of SIMs if any breach of such regulation is found; such breach is punishable under S.31(1)(a) of the Pakistan Telecommunication (Re-organization) Act, 1996 and under S.31(6) of said Act---If any such violation is committed by a company, every Executive Director, Chief Executive, Principal Officer and Secretary of such Company could be prosecuted in accordance with the provision of Cr.P.C---There is a difference between registration of FIR and taking cognizance; yet FIR could only be registered in cognizable offence and the Pakistan Telecommunication (Re-organization) Act, 1996, does not carry any provision which could label any such act as cognizable offence---As per S.5, Cr.P.C, if the procedure is not given in any special law then one prescribed under Cr.P.C shall be followed---According to Second Schedule of Cr.P.C if an offence was punishable with imprisonment for one year and upward but less than three years, the offence shall be non-cognizable, therefore, on that score FIR for offences under Pakistan Telecommunication (Re-organization) Act, 1996, could not be registered---Pakistan Telecommunication (Re-organization) Act, 1996, being special law has an overriding effect as per S.58 of said Act---Thus, it is to be given space and alleged corresponding sections in P.P.C could not be stretched for registration of FIR, therefore, very registration of FIR was false owing to mistake of law and the Court in its constitutional jurisdiction could quash the same---In such state of affairs, constitutional petition was allowed and FIR was quashed. Director General, FIA and others v. Kamran lqbal and others 2016 SCMR 447; Rana Shahid Ahmad Khan v. Tanveer Ahmed and others 2011 SCMR 1937; Muhammad Akram v. The State PLD 2001 Karachi 112; Haji Tooti Bashar v. The State 1993 PCr.LJ 1448; Liaqat Islam v. The State 2011 YLR 2280 and Pakistan Mobile Communication Ltd. v. Judge District Consumer Court, Gujranwala and 3 others PLD 2015 Lahore 204 ref. Director General, FIA and others v. Kamran Iqbal and others 2016 SCMR 447 and Shah Jehan Khetran v. Sh. Mureed Hussain and others 2005 SCMR 306 rel. Amir Sikandar Ranjha for Petitioner. Amjad Ali Ansari, Assistant Advocate General with M. Aslam, S.I. for the State. Imdad Ali Nekokara for Respondent No. 3. Date of hearing: 24th March, 2022. Judgment Muhammad Amjad Rafiq, J .--- Through this Constitutional Petition, the petitioner being Regional Manager based at Regional Office Lahore of the CMPak Limited (the "CMPak" or "Zong"), assailed the vires of FIR No.432 dated 27.11.2021 registered under sections 419 and 420, P.P.C. at Police Station Kaleki Mandi, Hafizabad on the ground that subject matter of FIR requires investigation and adjudication by Pakistan Telecommunication Authority (hereinafter called as PTA) only and in such like cases FIR is barred under such law, thus, prayed that FIR is to be quashed as false owing to mistake of law. 2. Briefly the facts of the case are that one Noor Abbas was allotted a golden number 0311-1111311 by Zong Company in year 2013 who sold out said number to one Mst. Irshad Bibi on 24.02.2015. Mst. Irshad Bibi further sold the same to one Idrees Noor on 25.01.2016. Shamraiz son of Noor Abbas, the first owner, on the death of Noor Abbas got blocked the Subscriber Identity Module (hereinafter called as SIM) and succeeded to transfer it in his name from Gujranwala Region of Zong Company. When it came to the notice through application of last owner namely Idrees Noor, Zong Company started inquiring the matter. The matter was under inquiry when an application was filed before the PTA. PTA issued a show-cause notice to Zong Company and the SIM was reverted in the name of Idrees Noor. Thereafter, Shamraiz son of Noor Abbas filed an application before Wafaqi Mohtasib which was contested and the learned Wafaqi Mohtasib vide order dated 22.06,2021 referred the matter to the Chairman PTA with the recommendations to finalize the matter and to redress the grievance of the complainant (Shamraiz) as per Rules; upon which by virtue of order dated 24.12.2021 PTA passed the following order: "It is to inform that since CMPak Limited (the "licensee") has taken appropriate action against the concerned employees and has reverted the ownership of the MSISDN in the name of Idrees Noor. In addition, the licensee has also issued advisory to all the franchisees, as well as CSCs regarding compliance of Rules, Regulations, SOPs and directives of PTA. Thus, in such circumstances, SCN is hereby disposed with the warning to the licensee not to repeat the same in future." but in the meantime said Shamraiz succeeded to get lodged FIR No.432/21 impugned herein, alleging fraud and misrepresentation in transfer of SIM and the petitioner along with others were nominated as accused in said FIR. 3. Learned counsel for the petitioner has contended that the local police has no jurisdiction to register the FIR as the whole mechanism relating to complaint in such like matters is regulated under The Pakistan Telecommunication (Re-organization) Act, 1996. He while referring to the definition clause of said Act has referred sections 2(a), 2(j) and 2(q) defining "Authority" "Licencee" and "Regulation" stated that Section 4 of Act ibid envisaged Functions of Authority and quoted Section 4 (a), (c) and (f). Clause (f) particularly states as under:- "investigate and adjudicate on complaints and other claims made against licensees arising out of alleged contraventions of the provisions of this Act, the rules made and licences issued thereunder and taken action accordingly." Further states that the regulations which were framed under the said Act are titled as "Telecom Consumers Protection Regulations, 2009". Such regulations contain the definition of "Consumer" and "Operator" which are regulation 3 (vi) and (vii). He highlights Regulation 11 (Nature of Complaints) to throw light on the sort of complaints to be dealt under such regulation which are as under:- i. Misuse of Service ii. Quality of Service iii. Illegal Practices iv. Poor Services v. Provision of Service vi. Misleading Statements vii. Non-Provision of Service viii. Mobile Number Probability related complaints Further highlights the Complaint Handling Mechanism which is reflected in Regulations 12 to 15 and finally states that if the grievances of a consumer could not be redressed by licensee concerned then the PTA is final Authority to investigate and adjudicate upon the matter. He quoted section 31(5) which says that cognizance of the offence shall only be taken on a complaint made by PTA which is reproduced as under:- "No court shall take cognizance of any offence punishable under this Act except on a complaint in writing by an officer authorized by the Authority or the Board." 4. Learned counsel for the petitioner adds that local police has no jurisdiction, if somebody is affected from the decision of PTA he can file an appeal before the High Court as mentioned in Section 7 of The Pakistan Telecommunication (Re-organization) Act, 1996 and by virtue of Section 58 of the said Act such law has been given an overriding effect. So, as a corollary the complainant of FIR at the most could file an appeal before this Court; registration of FIR was barred. He has placed reliance on judgments reported as "Director General, FIA and others v. Kamran lqbal and others" (2016 SCMR 447), "Rana Shahid Ahmad Khan v. Tanveer Ahmed and others" (2011 SCMR 1937), "Muhammad Akram v. The State" (PLD 2001 Karachi 112), "Haji Tooti Bashar v. The State" (1993 PCr.LJ 1448), "Liaqat Islam v. The State" (2011 YLR 2280). "Pakistan Mobile Communication LTD. v. Judge District Consumer Court, Gujranwala and 3 others (PLD 2015 Lahore 204) and also relied upon order dated 18.01.2022 passed in W P. No.8852 of 202 by this Court. 5. On the other hand, learned counsel for the complainant states that application filed by the complainant has been decided by PTA one sidedly and he has not been given proper opportunity, however, he could not controvert the legal position as stated by the learned counsel for the petitioner. 6. Heard. Record perused. 7. The SIM, in question, was primarily issued in the name of Noor Abbas which was activated in the year 2013, later it was transferred to one Irshad Bibi on 24.02.2015, from her the same was transferred in the name of Idrees Noor on 25.01.2016 but on the death of first owner, his son Shamraiz Abbas (complainant of FIR) approached Gujranwala CSC claiming the change of ownership of SIM from the name of his father i.e. Noor Abbas as fraudulent; consequently, succeeded to convert the ownership in his name on 13.02.2020 on the direction of one Ahmed Hassan Zafar, Senior Manager CSC on the basis of death certificate and CNIC. In July, 2020 a complaint was received from Idrees Noor through his representative qua unilateral conversion of SIM; internal inquiry was conducted and conversion was reverted to the ownership of Idrees Noor immediately, which was done on 13.11.2020 to protect consumer's interest, an action was also taken against Ahmed Hassan Zafar, Senior Manager CSC and he was fired. All these facts are mentioned in letter dated 07.07.2021 addressed to Director (Enforcement Wireless I) Pakistan Telecommunication Authority PTA Headquarters, F-5/1, Islamabad, Pakistan, which was issued by the counsel for CMPAK. Application filed by Shamraiz against such reversion was attended by Wafaqi Mohtasib who after hearing both the parties directed Pakistan Telecommunication Authority to redress grievance of the petitioner and disposed of the matter on 27.07.2021. In pursuance whereof Shamraiz (complainant of FIR) and Zong Company representative were directed to attend the inquiry and it was done by virtue of circular dated 28.10.2021 and after hearing, the Pakistan Telecommunication Authority vide letter dated 23.12.2021 concluded the matter, action taken by the CMPAK Board (licencee) for conversion of ownership was regulated and show-cause notice issued to the company was taken back and passed the order dated 24.12.2021 as cited in paragraph No.2 of this judgment. If for the sake of arguments, it is considered that Shamraiz complainant of FIR was not heard before passing of the above order he could have filed an application in this respect or an appeal as mentioned in section 7 of The Pakistan Telecommunication (Re-organization) Act, 1996, but it was not done rather complainant proceeded to lodge the FIR in question. 8. There is a complete and comprehensive mechanism given in The Pakistan Telecommunication (Re-organization) Act, 1996 which has been followed while processing the case of the respondent/complainant of FIR. Change of ownership of SIM is regulated under Rule 12 of Subscriber Antecedents Verification Regulations, 2015 which authorizes the operators to change the ownership of SIMs if any breach of such regulation is found; such breach is punishable under Section 31(1)(a) of The Pakistan Telecommunication (Re-organization) Act, 1996 and under Section 31(6) of said Act, if any such violation is committed by a Company, every Executive Director, Chief Executive, Principal Officer and Secretary of such Company can be prosecuted in accordance with the provision of Code of Criminal Procedure, 1898. As per Section 31(2) of The Pakistan Telecommunication (Re-organization) Act, 1996, every offence specified in subsection (1) shall be punishable with imprisonment which may extend to two years, or with fine which may extend to ten million rupees, or with both. Section 31(5) of the Act ibid states that no Court shall take cognizance of any offence punishable under this Act except on a complaint in writing by an officer authorized by the Authority or the Board. It is trite that there is a difference between registration of FIR and taking cognizance; yet FIR could only be registered in cognizable offence and The Pakistan Telecommunication (Re-organization) Act, 1996 does not carry any provision which could label any such act as cognizable offence. Therefore, by virtue of application of provision of Code of Criminal Procedure, 1898, I have gone into recitation of section 5 and second schedule of code of criminal procedure supra under the head "Offences against other laws". Section 5 of Code of Criminal Procedure, 1898 is reproduced as under:- "5. Trial of Offences under Penal Code-(1) All offences under the Pakistan Penal Code shall be investigated, inquired into tried, and otherwise dealt with according to the provisions hereinafter contained. (2) Trial of offences against other laws.--All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into. trying or otherwise dealing with such offence." It is clear from the reading of above Section that if the procedure is not given in any special law; then one prescribed under Code of Criminal Procedure, 1898 shall be followed. According to second schedule if an offence is punishable with imprisonment for one year and upwards but less than three years, the offence shall be non-cognizable, therefore, on this score FIR for offences under PTA cannot be registered. PTA being special law has an overriding effect as per Section 58 of said Act. It is to be given space and alleged corresponding sections in Pakistan Penal Code cannot be stretched for registration of FIR, therefore, very registration of FIR was false owing to mistake of law and this Court in its constitutional jurisdiction can quash the same. Reliance is placed on judgments reported as "Director General, Fia and others v. Kamran Iqbal and others" (2016 SCMR 447) and "Shah Jehan Khetran v. Sh. Mureed Hussain and others" (2005 SCMR 306). 9. For what has been discussed above, this writ petition is allowed and FIR No.432 dated 27.11.2021 registered under Sections 419 and 420, P.P.C. at Police Station Kaleki Mandi, Hafizabad is hereby quashed. However, the respondent is at liberty to approach Pakistan Telecommunication Authority for redress of his grievance if any or may file an appeal under Section 7 of the Pakistan Telecommunication (Re-organization) Act, 1996 against the decision of PTA dated 24.12.2021. JK/O-2/L Petition allowed.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----S. 497(2)---Penal Code (XLV of 1860), S. 395---Dacoity---Bail, grant of---Further inquiry---Accused-applicant was charged for committing dacoity with the complainant---Applicant was nominated in the FIR along with co-accused and certain robbed articles were allegedly shown to have been recovered by the police from him at the time of his arrest---However, on same footings co-accused, who too was arrested by the police on 14.08.2023 and certain robbed articles were also recovered from his possession, had been granted post arrest bail on 15.08.2024---Other co-accused persons had also been granted extra-ordinary relief in shape of pre-arrest bail by the Court on 12.08.2024 yet the request so made by present applicant had been turned down for reasons best known to the Presiding Officer---Since some of the co-accused had been extended grace of pre-arrest bail and one had been released on post arrest bail, the case of present applicant was not only at par with them rather was on better footings than that of co-accused who had been granted bail by the Court below---When complainant who was victim of incident had no objection and co-accused had been granted bail, case of applicant was purely covered by subsection (2) to S.497, Cr.P.C---Bail application was allowed, in circumstances. Nizamuddin v. The State and others SBLR 2024 Sindh 125 ref.. (b) Criminal Procedure Code (V of 1898)--- ----S. 497---Bail order---Observations of Court---Scope---Observations made in the bail order are tentative in nature and should not influence the Trial Court while deciding the case of either side. Shahid Ali Memon for Applicant. Syed Sardar Ali Shah, Additional P.G. for the State. Naseer Ahmed present in person for the Complainant. Date of hearing: 18th October, 2024. Order Muhammad Saleem Jessar, J .--- Process issued against complainant has returned by ASI Ghulam Rasool of Police Station 'A' Section Ghotki duly served, taken on record. Since compliance has been made hence the show cause notice issued to SHO Police Station 'A' Section Ghotki is hereby vacated. 2. Vide FIR No.330/2024 registered with P.S 'A' Section Ghotki for the offence punishable under section 395, P.P.C. the applicant Zohaib Soomro was arrested on 23.08.2024 along with alleged robbed articles. After completion of legal formalities the police have submitted challan against them on 29.08.2024. The case as reported is pending for preliminary proceedings in terms of dicta laid down by Hon'ble Supreme Court in the case of Muhammad Ramzan v. Rahib and others (PLD 2010 SC 585). The applicant filed Criminal Bail Application No.1734 of 2024 before the Court of Sessions Judge, latter it was assigned to IIIrd Additional Sessions Judge, Ghotki, who after due notice and hearing the parties turned down request so made by the applicant vide his order dated 27.08.2024 hence this application has been maintained. 3. Since the facts of the prosecution case are already mentioned in the FIR, which is annexed with the Court file, therefore, there is no need to reproduce the same. 4. Learned counsel for applicant submits that co-accused Ghulam Murtaza was also nominated and arrested by the police on 14.08.2023 along with certain robbed articles; however, has been granted post arrest bail by the same Additional Sessions Judge on 15.08.2024 on the ground of parity as he has already granted bail to co-accused Suneel Kumar alias Suneel and Muhammad Faheem Rajput on 12.08.2024. He submits that complainant of this case has sworn an affidavit before this on 04.10.2024 whereby he has extended his no objection for grant of bail to applicant Zohaib. He further submits that by granting application, the applicant may be released on bail. 5. Learned Additional P.G appearing for state after going through the record as well as no objection extended by complainant present before the Court places his reliance upon the case of Nizamuddin v. The State and others (SBLR 2024 Sindh 125) also records his no objection for grant of instant bail application. 6. Heard arguments and record perused. 7. No doubt the applicant is nominated in the FIR along with co-accused and certain robbed articles allegedly shown to have been recovered by the police from him at the time of his arrest; however, on same footings co-accused Ghulam Murtaza, who too was arrested by the police on 14.08.2023 and certain robbed articles were recovered from his possession, has been granted post arrest bail by same Additional Sessions (Abdul Baqi) on 15.08.2024. Co-accused Suneel Kumar alias Suneel and Muhammad Faheem Rajput have also been granted extra-ordinary relief in shape of pre-arrest bail by the same Additional Sessions Judge on 12.08.2024 yet the request so made by present applicant has been turned down for the reasons best known to the Presiding Officer. Since some of co-accused have been extended grace of pre-arrest bail and one has been released on post arrest bail, the case of present applicant is not only at par with them rather is on better footings then that of co-accused who have been granted bail by the Court below. 8. In the circumstances when the complainant who is victim of incident has no objection besides co-accused have been extended grace of bail. The case of applicant is purely covered by subsection (2) to Section 497, Cr.P.C. Consequently instant bail application is hereby allowed. The applicant Zohaib Soomro shall be released on bail subject to his furnishing solvent surety in the sum of Rs. 50,000/- (Fifty thousand) and PR bond in the like amount to the satisfaction of 1st Civil Judge and Judicial Magistrate Ghotki or the Court of Sessions Judge being the Court of ultimate trial, as the case may be. 9. Needless to mention that the observations made hereinabove are tentative in nature and would not influence the learned Trial Court while deciding the case of either side. 10. The aforesaid bail application stands disposed of in the above terms. JK/Z-2/Sindh Bail allowed.