Summary: Sentencing: Sections 35 and 71 PPC. Principles of concurrent sentencing---Penal Code (XLV of 1860)-------Ss. 395 & 71---West Pakistan Arms Ordinance (XX of 1965), S.13-E---CriminalProcedure Code (V of 1898), S.35---Sentence---Validity---Sentences awarded to two accusedunder S.395 P.P.C. and S.13-E of the West Pakistan Arms Ordinance, 1965, if allowed to runconsecutively, as directed by Trial Court, would exceed the maximum punishmentpermissible under S.13-E of the West Pakistan Arms Ordinance, 1965, which would be inviolation of the provisions of Ss. 35, Cr. P. C. and 71 P. P. C---Said sentences wereconsequently ordered by High Court to run concurrently---Sentence awarded to third accusedalthough did not exceed the maximum prescribed punishment, yet the same had presented ananomalous situation, as he would serve a longer sentence than the other two accused if hissentences were permitted to run consecutively---Same benefit, therefore, was also extendedto the said accused and sentences awarded to him by Trial Court were also directed to runconcurrently---Appeals were disposed of accordingly.Muhammad Hanif and others v. The State and others 2001 SCMR 84; Khan Zaman and,others v. The State 1987 SCMR 1382; Javaid Shaikh v. The State 1985 SCMR 153; JumaKhan and another v. The State 1986 SCMR 1573; Muhammad Ittafaq v. The State 1986SCMR 1627; Abdul Ghafoor v. The State 2007 YLR 700; Ahmed Jan v. The District andSessions Judge and another PLD 1994 Quetta 1; Shah Hussain v. The State (Jail PetitionNo.56 of 2005); Abdul Hamid v. The State 1990 PCr.LJ 568 and Muhammad Asif v. The State PLD 2003 Lah. 512 ref.

Summary: (a) Criminal Procedure Code (V of 1898) --- Ss. 173 & 190 --- Penal Code (XLV of 1860), Ss. 382, 395, 455, 148 & 149 --- Framing/amendment of charge --- Scope and judicial discretion --- Legal propriety of revisional court’s direction to amend charge to include graver offences Framing of charge is based on prima facie assessment of the contents of the F.I.R., statements recorded under S.161, Cr.P.C., and the police report under S.173, Cr.P.C. In the present case, the Magistrate had originally framed a charge under Ss. 382 and 506, P.P.C., but the revisional court (Additional Sessions Judge) set aside that order and directed framing of charge under Ss. 395, 455, 148 and 149, P.P.C., which carry graver punishment. Petitioners challenged this direction through the instant petition. The High Court held that in terms of settled law, if a less serious charge is framed, the accused cannot be convicted of a graver offence unless the charge is amended, and opportunity is afforded to parties. However, where a graver charge is framed, and evidence establishes a lesser included offence, conviction may be recorded without a fresh trial. Since offences under Ss. 382 and 395, P.P.C. belong to the same family of offences, and the contents of the F.I.R. alleged armed entry into a petrol pump by 22–25 accused, hostaging of staff, removal of cash, CCTV equipment, cheque book, and weapons, the revisional court rightly found a prima facie case under Ss. 395, 455, 148 and 149, P.P.C. Reference was made to Ghulam Haider Buriro v. The State (2018 MLD 469). The High Court found no illegality or jurisdictional error in the revisional court’s order. Disposition: Petition dismissed in limine.

Summary: Acquittal granted---(a) Criminal Procedure – Prolonged Delay in Trial & Right to Fair Trial: Right to fair trial – Delay in prosecution – Whether prolonged delay in framing of charges and commencement of trial amounts to abuse of process – The petitioner was accused in FIR No. 99/2021 under sections 147, 149, 395, 228, 506, 452, 427, 341, 353, 186 PPC read with Section 7 of ATA, 1997 – The case remained pending for four years without framing of charge or recording of any witness statements – Held, that protracted proceedings without progress amount to a mockery of justice – Where the prosecution fails to justify delay in trial, the accused is entitled to acquittal under Section 265-K Cr.P.C. – Trial court erred in dismissing the acquittal application despite the inexplicable delay – Fair trial principles demand expeditious disposal to prevent undue harassment of the accused. ----Cited Cases: • Amanullah Khan and others v. The State (PLD 1965 Karachi 310) • Muhammad Hussain v. The State (PLD 1959 Lahore 322) • Malik Fazal Karim v. The State (PLD 1957 Lahore 837) • Abdul Shafique v. The State (PLD 1964 Lahore 246) • Khiyal Muhammad v. The State (2024 SCMR 1490) (b) Abuse of Process – Application under Section 265-K Cr.P.C: Criminal Procedure – Power of court to acquit at any stage – Applicability of Section 265-K Cr.P.C. – Petitioner sought acquittal under Section 265-K Cr.P.C. citing lack of evidence and unreasonable delay – Held, that courts have inherent powers to prevent abuse of legal process – An application under Section 265-K Cr.P.C. can be entertained at any stage of proceedings – Where there is no probability of conviction, allowing the prosecution to continue amounts to harassment and miscarriage of justice – No charge framed, no witnesses recorded, and accused facing trial for over four years without progress – merits acquittal. ----Cited Cases: • Abbas Haider Naqvi v. Federation of Pakistan (PLD 2022 SC 562) • State v. Asif Ali Zardari (1994 SCMR 798) • Muhammad Sharif v. The State (PLD 1999 SC 1063) • Munir Ahmed v. The State (2019 SCMR 79) (c) Equal Treatment in Criminal Law – Discharge of Co-Accused & Selective Prosecution: Criminal Law – Selective prosecution – Whether accused can be treated differently on the same set of evidence – The prosecution discharged other co-accused in the police report under Section 173 Cr.P.C. on the same set of evidence, yet continued proceedings against the petitioner – Held, that in absence of new or differentiating evidence, continuing prosecution against one accused while discharging others is arbitrary and unlawful – The principle of "falsus in uno, falsus in omnibus" applies – Inconsistent and selective prosecution violates due process. ----Cited Cases: • Notice to Police Constable Khizar Hayat S/o Hadait Ullah (False Statement Case) (PLD 2019 SC 527) (d) Prosecutorial Failure – Lack of Evidence Against the Accused: Lack of evidence – No direct witness testimony – Whether absence of substantive evidence justifies acquittal – No ocular account existed against the petitioner – No CCTV footage, documentary proof, or material linking the petitioner to the alleged crime – Held, that mere presence at the scene or post-incident appearance does not establish criminal liability – The burden lies on the prosecution to prove the accused's role in the alleged offense beyond a reasonable doubt – In absence of credible evidence, the continuation of trial violates fundamental rights and fair trial principles under Article 10-A of the Constitution. ----Cited Cases: • State v. Ashiq Ali Bhutto (1993 SCMR 523) • Mir Shakil Ur Rehman v. Creek Developers (Pvt.) Ltd. (PLD 2019 Sindh 670) • Nadeem alias Nanha alias Billa Sher v. The State (2010 SCMR 949) (e) Disposition: Impugned order set aside – Petitioner acquitted under Section 265-K Cr.P.C. – Trial court’s order dismissing acquittal application declared unlawful – Prolonged delay, lack of evidence, and arbitrary prosecution justify termination of proceedings – Instant petition allowed, petitioner acquitted of all charges.

Summary: Bail granted----(a) Criminal Procedure Code (V of 1898): ----S. 497(2)—Bail after arrest—Further inquiry—Scope—Petitioner not named in FIR—Dacoity—Recovery of stolen firearms—Petitioner No. 2 (Muhammad Akram) not specifically nominated in FIR registered under Ss. 395, 397 & 312, PPC—Alleged recovery of complainant’s 12-bore gun and 8MM rifle attributed to petitioner during investigation—Held, petitioner alleged recovery was contested as false and planted—No identification parade held—Nothing further to be recovered from petitioner—Case fell under scope of further inquiry—Bail granted under S. 497(2), Cr.P.C.—Petitioner admitted to bail upon furnishing surety of Rs. 50,000 with two sureties in like amount—Petition of co-accused (petitioner No. 1) withdrawn. Bail granted.

Summary: Acquittal granted----Background: The appellant, along with another co-accused, was charged under Section 395 of the Pakistan Penal Code (PPC) for committing dacoity (robbery) in a house. The FIR was lodged by the complainant, alleging that several armed individuals, including Kewal, entered his home, robbed valuable items, and confined the household members in a room. The trial court convicted Kewal and his co-accused based on the evidence presented, sentencing them to three years of rigorous imprisonment and a fine. However, Kewal's appeal to the High Court was dismissed due to his non-appearance, while his co-accused was acquitted. Kewal later filed an appeal under Section 561-A Cr.P.C., seeking to have his case reheard. ----Issues: 1- Whether the evidence presented at trial was sufficient to convict Kewal. 2- Whether the appeal filed by Kewal, after his initial dismissal for non-appearance, was maintainable. 3- Whether the sentence imposed by the trial court was legally valid under Section 395 PPC. ----Holding/Reasoning/Outcome: --Insufficient Evidence: The court found that the prosecution failed to prove the case against Kewal beyond a reasonable doubt. The FIR was delayed without proper explanation, and there were significant contradictions in the testimonies of the prosecution witnesses. The court noted that the key witnesses provided inconsistent statements regarding the identification of the accused and the sequence of events during the robbery. The delay in filing the FIR and the lack of corroborative evidence further weakened the prosecution's case. --Maintainability of Appeal: The court addressed the maintainability of Kewal's appeal. It ruled that although the initial appeal was dismissed due to Kewal's non-appearance, the subsequent appeal could be treated as an application under Section 561-A Cr.P.C., which allows the court to recall its earlier order. Since Kewal had been arrested and was in custody, the appeal was revived, and the earlier dismissal was set aside. --Illegal Sentence: The court identified a legal defect in the trial court's judgment, noting that the sentence imposed on Kewal was less than the minimum prescribed under Section 395 PPC. The law mandates a minimum sentence of four years for dacoity, while Kewal was sentenced to only three years. The Additional Prosecutor General also acknowledged this error, suggesting that the case should be remanded for reconsideration of the sentence. The court accepted Kewal's appeal, set aside the trial court's judgment, and acquitted him of the charges. The court ordered his immediate release, provided he was not required in any other case. The judgment highlighted both factual inconsistencies and legal errors in the trial court's handling of the case, leading to Kewal's acquittal. ----Citations/Precedents: IKRAMULLAH AND OTHERS v. THE STATE (2015 SCMR 1002): Addressed the principle that a fugitive from the law loses the right to audience but may apply for the resurrection of an appeal upon surrender or recapture.

Summary: Acquittal granted----Background: An individual was convicted for involvement in a dacoity under Section 395 PPC and possession of stolen property under Section 412 PPC. The conviction was based on allegations that the individual participated in a robbery where cash, gold, and other items were stolen. The trial court sentenced the individual to 10 years of rigorous imprisonment and fines, with additional imprisonment for failure to pay the fines. Five co-accused were acquitted following a settlement with the complainant, who chose not to prosecute them further. -----Issues: 1- Whether the evidence used to convict the appellant was sufficient given that the same evidence led to the acquittal of other co-accused. 2- Whether the acquittal of co-accused based on a compromise with the complainant impacts the validity of the conviction for the appellant. ----Holding/Reasoning/Outcome: The Federal Shariat Court overturned the conviction, citing a misreading of evidence and a miscarriage of justice. The Court reasoned that the evidence used for convicting the appellant was the same as that used for acquitting the co-accused, which was contradictory and unjust. The principle of "Falsus in uno, falsus in omnibus" was applied, meaning that if evidence is disbelieved in the case of co-accused, it cannot be used to convict the appellant. The complainant's inconsistent stance and the lack of independent corroborative evidence further supported the decision to acquit the appellant. Consequently, the conviction and sentences were set aside, and the appellant was granted the benefit of doubt and released from incarceration. ----Citations/Precedents: Muhammad Afzal vs. The State (2017 SCMR 1645) Munir Ahmad and another vs. The State and another (2019 SCMR 79) Criminal Miscellaneous Application No. 200 of 2019 in Criminal Appeal No. 238-L of 2013

Summary: In section 395 PPC, while the alternative to life imprisonment is rigorous punishment which shall not be less than four years nor more than ten years, that alternative punishment still provides for a maximum of 10 years, keeping the offence within the prohibitory clause of section 497 Cr.P.C. Thus, at the stage of bail when the Court looks at the alternate punishment provided under section 395 PPC, that is for the purposes of considering whether the case is one of further inquiry within the ambit of sub-section (2) of section 497 Cr.P.C., and it is not to say that the case does not fall within the prohibitory clause of section 497 Cr.P.C.