Summary: Anti-Terrorism Court has exclusive jurisdiction to try offence under Section 336-B of the PPC; petrol is not a corrosive substance in terms of Section 336-A, thus throwing petrol does not attract penal consequences under Section 336-B of the PPC; in absence of proof of pregnancy, offence under Section 338 of the PPC is not made out; parameters of recording dying declaration; acquitted. 615Criminal Proceedings 17090/25 Ch. Fawad Ahmed Vs Govt. of Pakistan etc. Mr. Justice Tariq Saleem Sheikh 20- 03- 2025 2025 LHC 2579 2025 PCr.LJ 1462 (Lahore)

Summary: Criminal Procedure Code (V of 1898)--- ----S. 497(1), third proviso---Penal Code (XLV of 1860), Ss. 302(b) & 34---Qatl-i-amd, common intention---Bail, grant of---Statutory ground of delay in conclusion of trial---Allegation against the applicant was that he committed murder of the deceased---Accused was arrested on 27.12.2022 and till date he was languishing in prison, which period, if counted, would come to about two (02) years, two (02) months and twenty-one (21) days, while according to sections of law, with which he was charged, his trial under 3rd proviso (b) to S.497 (1), Cr.P.C., was required to have been completed within two (02) years---In the instant case, the prosecution had not placed on record anything before the Court to indicate that the petitioner was a hardened, desperate or dangerous criminal or a previously convicted person for an offence punishable with death or imprisonment for life for a person involved in the act of terrorism---Furthermore, speedy and fair trial was a fundamental right of every accused person as envisaged under Art.10-A of the Constitution, whereas admittedly trial in the case was in progress, however, there was no hope of its completion in near future---Thus, keeping the petitioner behind bar for indefinite period would serve no useful purpose---Delay in conclusion of trial was not solely attributable to the present accused-petitioner, therefore, he was held entitled to bail on statutory ground as he remained incarcerated in jail for continuous period of more than two (02) years---Bail application was allowed, in circumstances. Shakeel Shah v. The State and others 2022 SCMR 1; Nadeem Samson v. The State and others PLD 2022 SC 112; Muhammad Usman v. The State and another 2024 SCMR 28; 2024 YLR 2029; 2015 PCr.LJ 259 and 2018 PCr.LJ 140 rel. Wajih-ur-Rehman Swati for Petitioner. Amir Khan, Assistant Advocate General for the State. Malik Hammad Ahmad for the Complainant. Date of hearing: 20th March, 2025.

Summary: ----Ss.59 & 135---Pakistan Army Act Rules, 1954, R. 53 (1)---Criminal Procedure Code (V of 1898), Ss. 1 & 382-B---Constitution of Pakistan, Art. 199---Constitutional petition---Civil offence---Commencement of sentence---Pre-sentence custody, benefit of---Special law---Scope---Accused persons were convicted in trials under Pakistan Army Act, 1952 and they sought benefit of S. 382-B, Cr.P.C. to include pre-sentence period of their custody---Validity---As Pakistan Army Act, 1952 is a special law, the trials conducted thereunder are not governed by provisions of Criminal Procedure Code, 1898---Sentence of imprisonment, in terms of S. 135 of Pakistan Army Act, 1952 commences from the date on which original proceedings are signed by military court---Provision of S. 1, Cr.P.C. restricts application of Criminal Procedure Code, 1898 to any local or special law, or any special jurisdiction or power conferred or any special form of procedure prescribe by any other law for the time being in force---Provision of S. 1, Cr.P.C. defines the scope and application of Criminal Procedure Code, 1898 to ordinary and general offences and trials, while it places all special laws and jurisdictions outside of its ambit---Military courts had granted benefit of the provision to the convicts---Provision of S. 135 of Pakistan Army Act, 1952 constitutes a special law, whereas S. 382-B, Cr.P.C. is a general law---Distinction for extending benefit of S. 382-B, Cr.P.C. in cases under Pakistan Army Act, 1952 is that in general law it is mandatory for Trial Court to take into consideration the pre-sentence custody period in the light of the principles laid down by Supreme Court in case titled Shah Hussain v. The State reported as PLD 2009 SC 460 and the effect thereof has to be taken into account at time of release of convict by the authority with whom he was undergoing the sentence whereas in the later (Pakistan Army Act, 1952), the Court at the time of sentencing the accused considers the period in which he remained in custody as under trial prisoner within the parameters of S. 382-B, Cr.P.C., and when he is convicted, the benefit of S. 382-B, Cr.P.C. is extended to him and included in his sentence at the time of conviction---High Court declined to interfere in the matter as Military Courts had granted benefit of S. 382-B, Cr.P.C. read with R. 53(1) of Pakistan Army Act Rules, 1954---Constitutional petition was dismissed in circumstances. Manthar alias Manoo v. Federation of Pakistan (Cr. Misc. Appl. No. D-107 of 2014) distinguished. Azhar Iqbal v. The State and 4 others 2014 PCr.LJ 1387; Nabi Dar v. Registrar Court of Appeals, Judge Advocate General's Department, GHQ, Rawalpindi and 3 others PLD 2009 Quetta 27 and Shah Hussain v. The State PLD 2009 SC 460 rel. Sadiq Ahmad, Farhan Ullah Shahbanzai, Irfan Ali Yousafzai, Abid Ali, Wasif Ullah and Muhammad Waqar for Petitioner. Sana Ullah, Deputy Attorney General, Waqar Orakzai, Assistant Advocate General, Lieutenant Colonel Rizwan Akram, Assistant Judge Advocate General for Pakistan Army for Respondents. Shumail Ahmed Butt, Amicus Curiae. Date of hearing: 20th March, 2025.

Summary: (a) Sindh Empowerment of 'Persons with Disabilities' Act (XLVIII of 2018)--- ----Ss. 3, 11 & 25---Sindh Civil Servants Act (XIV of 1973), S. 5---Disabled/differently-abled, persons---Appointments---Reserved quota---Respondents were disabled/differently-abled persons who approached High Court and sought directions against Government of Sindh for their appointment according to 5% quota, reserved under section 5 of Sindh Civil Servants Act, 1973---Validity---Sindh Empowerment of 'Persons with Disabilities' Act, 2018 Act is a beneficial legislation enacted for empowerment of persons with disabilities, focused on a particular subject---As such Sindh Empowerment of 'Persons with Disabilities' Act, 2018 has to be enforced and implemented in letter and spirit across the board without any bias and discrimination---There was no logical justification to cause any interference in judgment passed by High Court merely on the foothold of alleged or purported objectionable portion highlighted by authorities, which was nothing but an amplification in the broader context---High Court had directed that all such persons who had already applied for jobs against vacant situations should have their applications considered at the outset rather than shelved or deferred under the garb or guise of fresh applications submitted for the same purposes by new entrants---High Court also cautioned Deputy Commissioners that any appointment made without inclusion of petitioners, who were differently-abled persons, would not be accepted and would be subject to legal scrutiny and action---Such observations of High Court were logical and did not prejudice interest of the petitioners / authorities in any event but rather served as a guideline to ensure finality and conclusiveness in recruitment process of disabled or differently-abled persons in accordance with the law---Supreme Court declined to interfere in judgment passed by High Court---Petition for leave to appeal was dismissed and leave to appeal was refused. Chairman, NADRA and others v. Abdul Majeed and another 2025 SCP 30 ref. (b) Legislation--- ----Enforcement of law--- Object, purpose and scope---Judicial review---Scope---Mere legislation is not sufficient, nor does it serve any purpose unless it is specifically enforced and administered---Implementing and enforcing laws in right dimensions represents unfeigned strategy through which government authorities put laws into action for effective and meaningful compliance under their beneficiaries---Effectual and proficient implementation of law is not only essential for maintaining order but it also guarantees justice, evenhandedness and equality in society with impartiality---Tool of judicial review is also a significant modus operandi that authorizes Courts to dwell on legislative competence, the Constitutionality of law and executive actions, to analyze whether the law aligns with Constitutional mandates and whether its implementation is fair and just, without any arbitrariness or discrimination---This is necessary for safeguarding and upholding rights of people as a key element in strengthening rule of law. Sibtain Mehmood, Additional Advocate General Sindh, Dr. Rana Khan, Advocate-on-Record along with Bhuro Mal, Additional Director (Law) (SGA&CD) for Petitioners. Zaheeruddin Mujahid, Advocate Supreme Court and Ms. Abida Parveen Channar, Advocate-on-Record for Respondents (in C.P.L.As. Nos. 220-K of 2025, 271-K of 2025 and 307-K of 2025). Farman Ali Tanwari, focal person for Court cases for Department of Employment of Persons with disabilities. Date of hearing: 20th March, 2025.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 427, 337-A(i), 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Delay of twenty two hours and thirty five minutes in lodging the FIR---Consequential---Accused was charged that he along with his co-accused committed murder of the brother of complainant by inflicting sota blows and also caused injuries to three other inmates---According to the complaint lodged by complainant, the occurrence in the case took place on 29.01.2015 at about 1:30/2:00 P.M. and the matter was reported to police on the following day i.e. 30.01.2015 at about 12:35 p.m. at police station situated at a distance of 15 K.M from the place of occurrence---Thus, there was an unexplained delay of about twenty two hours and thirty five minutes in lodging of the FIR---Said delay in the registration of FIR had given reasonable clue that either the incident remained un-witnessed or narrator of ocular account had no previous acquaintance with the actual assassin---Circumstances established that the prosecution had miserably failed to prove the guilt of appellant beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Mst. Asia Bibi v. The State and others PLD 2019 SC 64 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 427, 337-A(i), 337-F(i), 148 & 149---Qanun-e-Shahadat (10 of 1984), Art. 129(g)---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Withholding material witness---Effect---Accused was charged for committing murder of the brother of the complainant by inflicting sota blows and also causing injuries to three other inmates---Ocular account in the case was furnished by complainant, and three eye-witnesses/injured---Though, one of the injured female recorded her examination-in-chief but later on she was given up by complainant being wonover---By withholding the cross-examination of such an important witness, an adverse inference in terms of Art.129 Illustration (g) of Qanun-e-Shahadat, 1984, was drawn that had she appeared for cross-examination, she would not have supported the case of prosecution--- Circumstances established that the prosecution had miserably failed to prove the guilt of appellant beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Muhammad Rafique and others v. State and others 2010 SCMR 385 rel. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 427, 337-A(i), 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Dishonest improvements made by the witnesses---Accused was charged for committing murder of the brother of the complainant by inflicting sota blows and also causing injuries to three other inmates---Ocular account in the case was furnished by complainant and three eye-witnesses/injured---Record showed that one of the witnesses of ocular account did not provide any ocular account of the actual assault and only testified to recovery proceedings---Thus, the ocular account was effectively confined to complainant and one injured female---Though the said two witnesses were having stamp of injuries on their persons yet they could not be considered to be the truthful witnesses solely on the ground of their being injured---Testimony of said two witnesses was found to have some legal flaws as well---Both the eye-witnesses put forth the details of incident which inspired no confidence--- Both the eye-witnesses made dishonest improvement in their testimony---Such witnesses lost their credence on account of having polluted their deposition---Circumstances established that the prosecution had miserably failed to prove the guilt of appellant beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Amin Ali and another v. The State 2011 SCMR 323 and Sardar Bibi and another v. Munir Ahmed and others 2017 SCMR 344 rel. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 427, 337-A(i), 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Co-accused acquitted on same set of evidence---Effect---Accused was charged for committing murder of the brother of the complainant by inflicting sota blows and also causing injuries to three other inmates---During trial, both the eye-witnesses consistently attributed the fatal head injury of deceased to co-accused, who had been acquitted by the Trial Court by giving him the benefit of doubt---No appeal against acquittal of co-accused had been filed, thus the acquittal of co-accused had attained finality---So far as the present appellant was concerned, he was simply burdened with the accusation of having inflicted sota blow on left arm of female injured/eye-witness---Careful review of the testimony of female injured revealed that although she claimed that the appellant hit her with a sota blow but it did not inspire the confidence required for conviction of the appellant in the case, in the absence of independent corroboration, especially considering the overall inconsistencies that led to the acquittal of principal accused---Moreover, the injury allegedly attributed to the appellant on the head of female injured was simple in nature and the possibility of misidentification or exaggeration during a chaotic incident involving multiple assailants could not be ruled out---In the interest of justice benefit of doubt must also be extended to the appellant regarding the charge of hurt---Circumstances established that the prosecution had miserably failed to prove the guilt of appellant beyond any shadow of doubt--- Appeal against conviction was allowed, accordingly. (e) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 427, 337-A(i), 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Medical evidence casting doubt over the prosecution story---Accused was charged for committing murder of the brother of the complainant by inflicting sota blows and also causing injuries to three other inmates---Medical evidence was furnished by Female Medical Officer, who medically examined female injured on 02.02.2015---Said Medical Officer had mentioned probable time between injury and medical examination as four days---Such enormous delay casted serious doubt about the veracity of the prosecution story---Though the Female Medical Officer observed contusion of about 04 x 3.2 cm on victim's left forearm on posterolateral aspect near elbow joint yet that was simple in nature---In the given circumstances, the medical evidence did not provide any strength to the prosecution case so far as it related to the case of appellant---Circumstances established that the prosecution had miserably failed to prove the guilt of appellant beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. (f) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 427, 337-A(i), 337-F(i), 148 & 149---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Recovery of sota on the disclosure of accused---Inconsequential---Accused was charged for committing murder of the brother of the complainant by inflicting sota blows and also causing injuries to three other inmates---Record showed that a sota was recovered on the disclosure and pointing out of the appellant---However, it was a daily use item and was not forwarded to the Forensic Science Agency for its forensic analysis, thus it could not be used against the appellant---Moreover, when the ocular account was discarded, there remained nothing to be corroborated through recoveries---Circumstances established that the prosecution had miserably failed to prove the guilt of appellant beyond any shadow of doubt--- Appeal against conviction was allowed, accordingly. Zafer v. The State and others 2018 SCMR 326 rel. (g) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324, 427, 337-A(i), 337-F(i), 148 & 149---Criminal Procedure Code (V of 1898), S. 265-E---Qatl-i-amd, attempt to commit qatl-i-amd, mischief causing damage to the amount of fifty rupees, shajjah-i-khafifah, ghayr-jaifah-damiyah, rioting armed with deadly weapons, unlawful assembly---Appreciation of evidence---Initial plea of guilt---Conviction based on intial confession---Scope and principles---Accused was charged for committing murder of the brother of the complainant by inflicting sota blows and also causing injuries to three other inmates---Record showed that the Trial Court, having recorded the appellant's alleged confession under S.265-E, Cr.P.C., did not immediately act upon it but opted to proceed with recording the prosecution's evidence under S.265-F, Cr.P.C.---While a Trial Court had the discretion to convict on a guilty plea under S.265-E, Cr.P.C., if it had chosen to record prosecution evidence under S.265-F,Cr.P.C., that discretion must be exercised with utmost care, and ordinarily, awarding a capital sentence solely on such an admission should be avoided, with the prosecution's evidence being recorded in the interest of justice---Once a Trial Court opted to record the entire prosecution evidence, its decision must be grounded in the evidence produced during the trial, and not solely on the initial confession---In the present case, the Trial Court appeared to have acted contrary to these established legal principles and the evidence on record by convicting the appellant based on his initial plea of guilt after having conducted a full trial---Circumstances established that the prosecution had miserably failed to prove the guilt of appellant beyond any shadow of doubt---Appeal against conviction was allowed, accordingly. Muhammad Ismail v. The State 2017 SCMR 713 and Khalid Mehmood v. The State 2024 PCr.LJ 1212 rel. (h) Criminal trial--- ----Benefit of doubt---Principle---Accused is entitled to the benefit of every reasonable doubt arising out of the case. Sikandar Ali alias Bhola v. The State 2025 SCMR 552 rel. Rai Bashir Ahmad for Appellant. Muhammad Waqas Anwar, Deputy Prosecutor General for the State. Waqar Hassan Mir for the Complainant. Date of hearing: 20th March, 2025. Judgment Raja Ghazanfar Ali Khan, J .--- Through this single judgment, we intend to decide Criminal Appeal No.22031 of 2022 filed by Shakeel Ahmad against his conviction and sentence and Murder Reference No.35 of 2022 transmitted by learned trial court for confirmation or otherwise of death sentence of Shakeel Ahmad, appellant, as both the matters are emanating from the same judgment dated 02.02.2022 passed by the court of learned Additional Sessions Judge Renala Khurad (Okara) in a private complaint titled as 'Liaqat Ali v. Muhammad Musa etc." arising out of FIR No.36 dated 30.01.2015, under sections 302, 324, 337-F(i),337-A(i), 427, 148 ,149 P.P.C registered at Police Station Sher Gharrh Renala Khurd. After conclusion of trial in the aforesaid case, the learned trial court while acquitting the co-accused Muhammad Musa and Salman alias Shan son of Khadim Hussain proceeded to convict and sentence Shakeel Ahmad (appellant) in the following terms:- (i) Under Section 302 (b) P.P.C: Death with the direction to pay Rs. 500,000/- as compensation to the legal heirs of deceased under section 544-A Cr.P.C. In default of payment of compensation to further undergo six months S.I. (ii) Under Section 337-F(i) P.P.C: Daman of Rs.20,000/- to injured Mst. Amina Bibi. Moreover, Salman alias Shan son of Bashir Ahmad co-accused was convicted under section 337-A(i) P.P.C for causing the injury to Liaqat Ali and sentenced to Daman of Rs.20,000/- payable to Liaqat Ali injured. 2. Briefly the facts of prosecution case as detailed in paragraph 1 of the learned trial court's judgment, unfolds as under:- "I am resident of Chak No.21/1-A-L Renala Khurd and agriculturist by profession. On 29.1.2015 at about 01:30/02:00 p.m, I along with my brother namely Muhammad Saddique were working at our fields. On the same time, my Bhabhi Pathani Bibi made mobile phone call and told that an altercation had happened between Musa accused, their women folk and themselves. Upon which, I enquired about the reason of quarrel and she told me that our he-goat went to the house of Khadim son of Hakim and they had broken leg of our he-goat. On this information, I along with my brother Muhammad Saddique came back to our house. We parked our motorcycle outside our house and entered the house. There we enquired about the reason of altercation from our women folk. On the same time, accused Muhammad Musa son of Mamand armed with sota, Shakeel Ahmad armed with sota, Salman alias Shan son of Khadim Hussain armed with Sota, Shan Muhammad son of Bashir Ahmad armed with Sota along with two un-known accused persons armed with fire arm weapons came in front of our house and they started to hit our motorcycle with Sota blows. On hearing the noise, I along with Muhammad Saddique, Mohsin Ali, my brothers, Amina Bibi and Mafia Bibi came out of our house. Accused Shakeel son of Khadim raised a Lalkara that they all be murdered. Upon which, accused Musa son of Mamand made Sota blows with intent to murder Muhammad Saddique which hit him at his head and right eye. After sustaining injuries Muhammad Saddique fell down on the ground and became un-conscious. We started to take care of Muhammad Saddique upon which Shakeel Ahmad made Sota blow which hit at left arm of Ameena Bibi. Accused Salman alias Shan son of Khadim Hussain made Sota blows which hit Mafia Bibi at her left arm and right shoulder. Accused Muhammad Musa and Shan son of Bashir Ahmad made Sota blows which hit me at my right and left eyes. The un-known accused persons made aerial firing with their respective weapons. On hearing the reports of firing people of the vicinity attracted to the place of occurrence, on seeing them all the above said accused persons fled away from the place of occurrence with their respective weapons. The occurrence was witnessed by me along with Mohsin Ali, Mafia Bibi and Ameena Bibi PWs. After the occurrence, we took Muhammad Saddique, who was in injured condition, to General Hospital Lahore for his treatment. We remained busy in the treatment of Muhammad Saddique in General Hospital Lahore, therefore, delay in lodging of FIR had occurred. Muhammad Saddique is fighting with death. The accused persons in furtherance of their common intention have launched a murderous assault on my brother and have also injured us. They be brought to justice." 3. As per prosecution version, on 30.01.2015, Nazir Ahmad SI (CW.5) was on patrol duty, when complainant Liaqat Ali (PW-1) presented an application (Exh.PA), which led to the registration of an FIR (Exh.CW1/A). He accompanied the complainant to General Hospital, Lahore, where the injured Muhammad Saddique was admitted in critical condition, whose statement under Section 161 Cr.P.C. could not be recorded. Muhammad Saddique succumbed to those injuries thus, section 302 P.P.C was added. Nazir SI inspected the dead body, prepared the necessary medico-legal documents (Exh.PW-7/B, C, D), and sent the dead body for postmortem examination through Muhammad Javed 1618/C. He, then visited the crime scene and, in the presence of witnesses, prepared a rough site plan (Exh.CW5/B) and seized the complainant's Yamaha motorcycle (P-1) through recovery memo. (Exh.PB). Injury statements of Liaqat Ali, Ameena Bibi, and Mafia Bibi alias Allah Mafi (Exh.PK/1, Exh.J/1, Exh.H/1) were prepared and they were sent to DHQ Hospital Okara. On 31.01.2015, last worn clothes of the deceased (P-6 to P-9) were taken into possession vide memo. (Exh.CW-2/A). On 02.02.2015, MLCs of the injured were received, and sections 337-A(i) and 337-F(i) P.P.C were added. A scaled site plan (Exh.CW3/A) was also prepared. On 27.02.2015, the accused Shakeel Ahmad and co-accused Muhammad Musa, Salman alias Shan son of Khadim Hussain and Salman alias Shan son of Bashir Ahmad were arrested. During interrogation on 08.03.2015 Shakeel Ahmad led to the recovery of a sota (P-3) from his residence, via recovery memo. (Exh.P-E). 4. The complainant, being dissatisfied with the result of the police investigation, opted to file a private complaint before the learned trial court. Upon the completion of the necessary procedural formalities, the appellant, Shakeel Ahmad, along with the co-accused, were summoned to face trial. At the stage of framing the charge, the appellant, Shakeel Ahmad, entered into a plea of guilt, articulating his statement in the following terms:- "I plead guilty to the charge. On 29.01.2015 at about 1:00/01-30 P.M. Zafar son of Nawab and Awais son of Allah Ditta trespassed our house and they gave Sota blow on the head of my mother. I came forward to rescue my mother and while giving Sota blow to Zafar, Muhammad Saddique deceased came in between us and Sota hit the head of Muhammad Saddique. He sustained a severe injury on his head. He was taken to hospital. I along with my mother, Zafar, Awais and Saddique were present at the spot and one of the remaining accused persons namely Musa, Salman alias Shan son of Khadim and Salman alias Shan son of Bashir were present at the spot. My mother Mst.Bibi Rani was also medically examined and MLC was issued in this regard." Notwithstanding this plea of guilt tendered by the appellant, the learned trial court exercised its jurisdiction under Section 265-F Cr.P.C. and proceeded to record evidence of the prosecution. 5. The prosecution produced seven witnesses to substantiate its case. Liaqat Ali (Complainant/PW-1) reiterated the contents of private complaint, detailing the attack by the co-accused, including Shakeel Ahmad appellant, and the injuries sustained by himself, his brothers, and the deceased Muhammad Saddique. Allah Maafi alias Mafia Bibi (PW.2 ) was an alleged injured eye-witness, but she was given up after her examination-in-chief due to her non-appearance for cross-examination. Ameena Bibi (PW.3), another alleged injured eye-witness, corroborated the complainant's version, specifically mentioning that the appellant Shakeel Ahmad inflicted sota blow on her arm. Mohsin Ali (PW.4), the complainant's brother was another eye-witness, who supported the prosecution's narrative and testified the recovery memos. of sotas. Dr. Fauzia Syed (PW.5) medically examined Allah Maafi and Ameena Bibi, whereas Dr. Yasir Irfan (PW.6) medically examined Liaqat Ali (PW.1). Dr. Khizar Ahmad Moon (PW.7) conducted the post-mortem examination on the dead body of Muhammad Saddique (deceased), detailing a significant head injury as the cause of death. Nine witnesses were examined as Court Witnesses, including Nazir Ahmad SI, Investigating Officer (CW.5), who detailed the investigation process, recovery of the motorcycle and sotas besides preparation of various documents. Dr. Shahid Iqbal (CW-6) produced the operation notes of the deceased. Muhammad Aamir Raza Baitu, Judicial Magistrate (CW-9) had recorded statement under Section 164 Cr.P.C. of the appellant Shakeel Ahmad. 6. After the conclusion of prosecution evidence, the learned trial court also examined the appellant under section 342, Cr.P.C, who in reply to the question "Why this case against you and why the PWs deposed against you?" stated as follows:- "All the private PWs of this case are inter-se related and closely related with the deceased. No independent/ impartial witness has supported the prosecution case either during the course of investigation or during the trial. Complainant lodged this FIR and private complaint against me and my co-accused with mala fide intention, after a considerable delay, by suppressing the real facts. FIR and private complaint has been registered against me and my co-accused after consultation and with due deliberation. The real facts of this occurrence were that on 29.01.2015, at about 01-00 p.m. near relative of complainant Zafar son of Nawab, Muhammad Awais son of Allah Ditta forcibly trespassed my house and caused injuries to my mother Mst. Bibi Rani wife of Khadim Hussain which hit on her head. On that day when I was coming from my school, I saw the blood which was oozing from the head of my mother, I became over zealous and I having been instigated tried to cause injury to Zafar Iqbal with Sota but unfortunately Muhammad Saddique deceased stepped forwarded which landed on his head. None of my other co-accused were present at the place of occurrence nor they participated in the occurrence. My mother Rani Bibi was medically examined by the police on the same day through Rapt No.15 and thereafter case FIR No.100/2015 Under Sections 337-A (ii)/34 of P.P.C was got registered by my mother against the complainant party and according to record, accused persons are P.Os in this case and file of the case is consigned to record room under Section 512 of Cr.P.C on 15.10.2016. The occurrence happened within short moments without any meditation under the heat of passion." The appellant neither made statement under section 340(2) of Cr.P.C, nor produced any defence evidence. After conclusion of the trial, the appellant was convicted and sentenced as detailed in para 1 ante, hence the criminal appeal and the Murder Reference before this Court. 7. The learned counsel for the appellant has primarily argued that the conviction under Section 302(b) P.P.C is not sustainable on the grounds that the learned trial court placed undue reliance on the appellant's qualified plea of guilt under Section 265-E Cr.P.C., while disregarding the substituted version of events presented by the appellant and the lack of independent corroboration for the prosecution's case against him for the commission of murder. It was further contended that the prosecution failed to establish the appellant's intention to commit murder or his participation in an unlawful assembly with the common object of committing murder. 8. Conversely, the learned Deputy Prosecutor General supported the judgment of the learned trial court by arguing that the appellant's plea of guilt, coupled with the ocular and medical evidence, sufficiently established his guilt for the commission of the offence under Section 302(b) P.P.C. The complainant's counsel has adopted the said arguments and prayed for the upholding of the death sentence. 9. We have carefully considered the arguments advanced by the learned counsel for the appellant, learned Deputy Prosecutor General assisted by learned counsel for the complainant and also meticulously examined the entire record of the learned trial court with their able assistance. 10. The prosecution, in brief, has structured its case to the effect that on the fateful day appellant Shakeel Ahmad along with his co-accused Muhammad Musa, Salman alias Shan son of Khadim Hussain, Salman alias Shan son of Bashir Ahmad, all armed with clubs along with two un-known accused armed with firearm weapons gathered in front of the house of the complainant Liaqat Ali (PW.1) and started hitting his motorcycle. On hearing noise, he (PW.1) along with Muhammad Saddique, Mohsin Ali, Amina Bibi and Mafia Bibi came out of the house. Accused Shakeel prompted his co-accused not to spare the complainant side. Thereafter Musa inflicted club blows which hit on head and right eye of Saddique. Shakeel Ahmad made sota blow which hit on left arm of Ameena Bibi. Accused Salman alias Shan son of Khadim Hussain made sota blows which hit Mafia Bibi at her left arm and right shoulder. Accused Muhammad Musa and Shan son of Bashir Ahmad inflicted sota blows which hit complainant at his right and left eyes. The un-known accused persons made aerial firing with their respective weapons. 11. We have straightaway noticed that according to the complaint (Exh.PA) lodged by Liaqat Ali complainant (PW.1), the occurrence in this case took place on 29.01.2015 at about 1:30/2:00 P.M. and the matter was reported to police on the following day i.e. 30.01.2015 at about 12:35 P.M. at Police Station Shergarh situated at a distance of 15 K.M from the place of occurrence. There is an unexplained delay of about twenty two hours and thirty five minutes in lodging of the FIR. The aforementioned delay in the registration of FIR gives reasonable clue that either the incident remained un-witnessed or narrator of ocular account had no previous acquaintance with the actual assassin. In this regard, guidance can be sought from the case of "Mst. Asia Bibi v. The State and others" (PLD 2019 SC 64) the relevant portion from paragraph No.29 of said case law is hereby reproduced:- "There is no cavil to the proposition, however, it is to be noted that in absence of any plausible explanation, this Court has always considered the delay in lodging of FIR to be fatal and casts a suspicion on the prosecution story, extending the benefit of doubt to the accused. It has been held by this Court that a FIR is always treated as a cornerstone of the prosecution case to establish guilt against those involved in a crime; thus, it has a significant role to play. If there is any delay in lodging of a FIR and commencement of investigation, it gives rise to a doubt, which, of course, cannot be extended to anyone else except to the accused." 12. The ocular account in this case was furnished by Liaqat Ali (PW.1), Mst.Allah Mafi alias Mafia Bibi (PW.2), Mst.Ameena Bibi (PW3) and Mohsin Ali (PW.4). It is pertinent to mention here that though Allah Mafi alias Mafia Bibi (PW.2) got recorded her examination-in-chief but later on she was given up by Liaqat Ali (complainant) being won over. By withholding the cross-examination of such an important witness, an adverse inference in terms of Article 129 Illustration (g) of Qanun-e-Shahadat Order, 1984 is drawn that had she appeared for cross-examination, she would not have supported the case of prosecution. The august Supreme Court of Pakistan in the case of Muhammad Rafique and others v. State and others (2010 SCMR 385) held as under:- "that if any party withholds the best piece of evidence then it can fairly be presumed that the party had some sinister motive behind it. The presumption under Article 129 (g) of Qanun-e-Shahadat Order can fairly be drawn that if PW would have been examined, his evidence would have been unfavourable to the prosecution." Mohsin Ali (PW.4) did not provide any ocular account of the actual assault and only testified to recovery proceedings. Thus, the ocular account was effectively confined to Liaqat Ali (PW.1) and Mst. Ameena Bibi (PW3). Though the remaining two witnesses namely Liaqat Ali (PW.1) and Mst.Ameena Bibi (PW.3) were having stamp of injuries on their persons yet they cannot be considered to be the truthful witnesses solely on the ground of their being injured. Guidance in this regard can be sought from the case law reported as "Amin Ali and another v. The State" (2011 SCMR 323) also held as under:- "Certainly, the presence of injured witnesses cannot be doubted at the place of incident, but the question is whether they are truthful witnesses or not, because merely the injuries on the persons of PWs would not stamp them as truthful witnesses." We have minutely examined the testimony of Liaqat Ali (PW.1) and Mst.Ameena Bibi (PW.3) which is found to have some more legal flaws as well. Both the eye-witnesses put forth the details of incident which inspire no confidence. Both the eye-witnesses made dishonest improvement in their testimony. The relevant portion of cross-examination of Mst.Ameena Bibi (PW.3) is reproduced hereunder:- "I have stated in my statement before the police that I along with Allah Mafi came out of the house (Confronted with Exh.DA where it is not so recorded. I have stated in my statement that Muhammad Mosa accused made a sota blow which hit Muhammad Saddique on his right eye (confronted with Exh.DA) where it is not so recorded. I have stated in my statement Exh.DA Shakeel accused made sota blow which hit me at my left arm confronted where it is not so recorded. I have stated in my statement Exh.DA that Salman accused made sota blow which hit at the left arm and right shoulder of Allah Mafi confronted where it is not so recorded. I have stated in my statement that Mosa and Shan accused made a sota blow which landed on the left eye and right eye of Liaqat Ali complainant confronted where it is not so recorded. I have got recorded in my statement Exh,DA that unknown accused made aerial firing upon which people of the vicinity attracted at the place of occurrence confronted where it is not so recorded. ?" The law on the point of making dishonest improvements needs no discussion as it is a settled proposition whereby such witness loses his credence on account of having polluted his deposition. Guidance in this regard can be sought from the case law reported as "Sardar Bibi and another v. Munir Ahmed and others" (2017 SCMR 344), wherein the Supreme Court of Pakistan observed as under:- "According to the doctor, there was only one fire-arm entry wound on the chest of the deceased Zafar Iqbal. In order to meet this situation, witnesses for the first time, during trial made omission and did not allege that the fire shot of Sultan hit at the chest of Zafar Iqbal, deceased. So the improvements and omissions were made by the witnesses in order to bring the case of prosecution in line with the medical evidence. Such dishonest and deliberate improvement and omission made them unreliable and they are not trustworthy witnesses." During trial both the eye-witnesses namely Liaqat Ali (PW.1), and Mst.Ameena Bibi (PW.3) consistently attributed the fatal head injury of Muhammad Saddique to co-accused Muhammad Musa, who has been acquitted by the learned trial court by giving him the benefit of doubt. No appeal against acquittal of Muhammad Musa has been filed, thus the acquittal of Muhammad Musa has attained finality. So far as the present appellant is concerned he is simply burdened with the accusation of having inflicted sota blow on left arm of Ameena Bibi (PW.3). A careful review of the testimony of Ameena Bibi (PW.3) reveals that although she claimed that the appellant hit her with a sota blow but it does not inspire the confidence, required for conviction of the appellant in this case, in the absence of independent corroboration, especially considering the overall inconsistencies that led to the acquittal of principal accused Musa. Moreover, the injury allegedly attributed to the appellant on the head of Ameena Bibi (PW3) was simple in nature, and the possibility of misidentification or exaggeration during a chaotic incident involving multiple assailants cannot be ruled out. In the interest of justice benefit of doubt must also be extended to the appellant regarding the charge of hurt. 14. The medical evidence was furnished by Dr.Fauzia Syed (PW.5) who medically examined Mst. Ameena Bibi (PW.3) on 02.02.2015. The Doctor has mentioned probable time between injury and medical examination as four days. Such enormous delay casts serious doubt about the veracity of the prosecution story. Though the Doctor observed contusion of about 04 x 3.2 cm on her left forearm on posterolateral aspect near elbow joint yet this is simple in nature. In the given circumstances, the medical evidence also does not provide any strength to the prosecution case so far as it relates to the case of Shakeel Ahmad (appellant). 15. As far as the recovery of sota (P3) vide recovery memo. (Exh.PE) effected on the disclosure and pointing out of the appellant is concerned, suffice to say in this regard that it is a daily use item and was not forwarded to the PFSA for its forensic analysis, thus it cannot be used against the appellant. It is settled law that when the ocular account is discarded, there remains nothing to be corroborated through recoveries. Guidance in this regard can be sought from the case law reported as "Zafer v. The State and others" (2018 SCMR 326), wherein the Supreme Court of Pak

Summary: Civil Procedure Code (V of 1908)--- ----S.24---Transfer of suit---Scope---Bias in a Judge alleged---The applicant filed suit for damages against the respondents, who were government officials, for alleged malicious prosecution stemming from a false FIR registered under S.381, P.P.C.---The suit was initially instituted before the Senior Civil Judge, Mirpur Mathelo, who rejected the plaint under O.VII, R.11, C.P.C. on the ground of maintainability---The applicant filed an appeal, and the appellate court remanded the matter to the Trial Court to be decided on merits after framing issues and recording evidence, however, instead of proceeding with the trial, the applicant filed multiple transfer applications raising allegations of bias and lack of impartiality against successive Judges--- As a result, the suit was transferred back and forth between the courts at Mirpur Mathelo and Ghotkion judicial and administrative grounds---The applicant then filed the present transfer application, expressing mistrust in the newly posted Senior Civil Judge at Mirpur Mathelo and sought a further transfer---The applicant presented two background narratives to support his claim; that he served as SHO Anti-Encroachment Force, Ghotki, where respondents allegedly tried to interfere with his duties, and upon his resistance, fabricated a false story resulting in the registration of an FIR against him; that same FIR concerned the alleged theft of cables and a computer, in which the applicant was eventually acquitted, following which he filed the civil suit for damages---Held: This repetitive filing of transfer applications, particularly the present one, in which the applicant claimed dissatisfaction with the behavior of the newly posted Senior Civil Judge, raised concerns about the applicant's own conduct rather than the fairness or impartiality of the judicial process---This pattern suggested that the applicant might be using the transfer application process as a tactic to delay or obstruct the progress of the case, rather than genuinely seeking a fair trial, keeping the respondents, who were government servants, under pressure---The application at hand was without merit and was accordingly dismissed, in circumstances. Achar Khan Gabol for Applicant. Shahryar Imdad Awan, Assistant Advocate General Sindh for Respondents. Date of hearing: 20th March, 2025. Order Zulfiqar Ahmad Khan, J .--- This application has been filed by the applicant seeking transfer of F. C. Suit No.94 of 2024 (Re: Dawood Ahmed Bhutto v. M. Khalid Saleem and another) from the Court of learned Senior Civil Judge, Mirpur Mathelo to any other competent Court in District Ghotki. 2. Learned Counsel for the applicant has contended that the applicant has lost faith upon the learned Senior Civil Judge due to various concerns, including the earlier rejection of the plaint under Order VII Rule 11, C.P.C.. However, in appeal, the matter was remanded back to the trial Court for deciding it on merits after framing issues and leading evidence by the parties. He has further contended that despite the appellate Court's overruling the maintainability issue, the trial Court once again directed the applicant to satisfy the same issue, raising concerns about the impartiality of the learned Judge. He has lastly submitted that the applicant fears an unjust outcome and seeks transfer of the case to another Court. He has placed reliance upon the case reported as 2004 CLC 1244 and 2012 CLD 6. 3. On the other hand, learned AAG Sindh has opposed the application, contending that the applicant is unnecessarily prolonging the matter and that no concrete evidence has been presented to demonstrate any bias or partiality on the part of learned Judge. He has further submitted that without any substantial proof against the learned Judge, the request of transferring the case is unfounded and should be dismissed. 4. Before filing this application, the applicant has also preferred a like nature application (Civil Transfer Application No.39 of 2024) before the learned District Judge, Ghotki, which has been dismissed by him through a well-reasoned order dated 08.01.2025. Relevant portion of that order is reproduced below: "A perusal of case file shows that, applicant had filed F.C Suit No.31/2021 for damages against respondents before court of learned Senior Civil Judge, Mirpur Mathelo. Its plaint was rejected under Order VII Rule 11 C.P.C. on point of its maintainability. In Civil Appeal, matter was remanded back to trial court for deciding it on merits. His suit was renumbered as F.C Suit No.94/2023. Then applicant/plaintiff filed Transfer Application against the then Senior Civil Judge, Mirpur Mathelo (Mr. Anees-ur-Rehman Buriro), which was allowed and case was transferred to the court of learned Senior Civil Judge, Ghotki. After that, on administrative ground, so many cases including Applicant's F.C Suit No.94/2023 was transferred to same court of learned Senior Civil Judge, Mirpur Mathelo, on point of territorial jurisdiction, where new Senior Civil Judge, has recently been posted. Applicant has again moved Transfer Application, solely on the ground that, behaviour of learned Senior Civil Judge, towards him is not good. When confronted, applicant Dawood Ahmed Bhutto, a public servant, admits that, after transfer of the case, he has not engaged his learned counsel and court is asking him for satisfaction over maintainability of the suit. It is surprising that, for instant transfer application, applicant engages a senior counsel but for proceedings the case he does not engage learned counsel before trial court. I do not find substance in Transfer Application in hand, therefore, it is dismissed. It is pertinent to mention here that earlier plaint in applicant's suit was rejected on point of maintainability. In appeal same was remanded back to trial court for deciding it on merits by framing issues and to lead evidence thereupon. Learned Senior Civil Judge, Mirpur Mathelo is advised to comply the direction of appellate court in letter and spirit, including over issue of maintainability and then decide the case in accordance with law expeditiously preferably within a period of three (3) months because it is pending since year 2021." 5. Having considered the facts, the arguments of the parties, and the above detailed reasoning of the learned District Judge, this Court concurs with the decision of the learned District Judge, having noted that the applicant has a consistent history of filing transfer applications in relation to F.C. Suit No.31 of 2021 (renumbered as F.C. Suit No.94 of 2023). Initially, the suit was filed before the learned Senior Civil Judge, Mirpur Mathelo, who rejected the plaint under Order VII Rule 11, C.P.C., on the ground of maintainability. In response, the applicant filed an appeal, which resulted in remanding the matter to the trial Court for a decision on merits after framing of issues and leading of evidence by the parties. However, despite the remand order, the applicant filed a transfer application against the former learned Senior Civil Judge, Mirpur Mathelo, which was granted, and the case was transferred to the Court of learned Senior Civil Judge, Ghotki. Subsequently, on administrative grounds due to territorial jurisdiction, the same case was transferred back to the Court of learned Senior Civil Judge, Mirpur Mathelo, where a new learned Judge was posted. 6. This repetitive filing of transfer applications, particularly the present one, in which the applicant claims dissatisfaction with the behavior of the newly posted learned Senior Civil Judge, raises concerns about the applicant's own conduct rather than the fairness or impartiality of the judicial process. This pattern suggests that the applicant may be using the transfer application process as a tactic to delay or obstruct the progress of the case, rather than genuinely seeking a fair trial, keeping the respondents, who are government servants, under pressure. 7. The applicant has attempted to couple two distinct narratives in support of his case. Firstly, the applicant states that he was serving as the Station House Officer of Anti-Encroachment Force, Ghotki, where he alleges that the respondents forcibly sought duties of his staff. When the applicant resisted, he was issued with an explanation based on a concocted and fictitious story, which he replied. Subsequently, the then Deputy Commissioner, Ghotki (respondent No.1) ordered the applicant to get the chambers of advocates vacated amid a dispute between the District Bar Association, Ghotki and the Municipal Committee, Ghotki. The applicant claims that he requested written authorization and police personnel support to continue his duties, but respondent No.1 did not provide the same. He alleges that on this account, the respondents angered, which resulted in registration of a false FIR (Crime No. 36 of 2020) under Section 381, P.P.C. at Police Station Mirpur Mathelo by them. 8. The second narrative relates to the same FIR, which pertains to the theft of four cables and a computer. The applicant claims that he was acquitted in this matter and subsequently filed the suit for malicious prosecution, seeking damages amounting to Rs.1 crore. Despite these serious allegations, the applicant neither reported the incidents, which he asserts were acts of malice and annoyance, to his superiors nor pursued any departmental remedy. Instead, he chose to approach the Court directly by filing a civil suit. 9. In these circumstances, the application at hand is sans merit and is accordingly dismissed along with pending application. The trial Court is directed to proceed with the matter strictly in accordance with law as held by the appellate Court and decide the case within a period of two months hereof, ensuring that no adjournments are granted to the applicant unless there are extraordinary circumstances. UN/D-4/Sindh. Application dismissed.

Summary: Per Jamal Khan Mandokhail, J.; Amin-ud-Din Khan, Naeem Akhter Afghan, Shakeel Ahmad and Aamer Farooq, JJ., agreeing (a) Constitution of Pakistan--- ----Art. 10A---Right to fair trial and due process of law---Right of appeal---Imposing of unreasonable conditions---Effect---Unreasonable conditions attached to an appeal would likely be ones that are not justified, disproportionate or infringe upon fundamental rights or legal process---Unreasonable condition can make it impossible or unfairly difficult to exercise the right to appeal. (b) Foreign Exchange Regulation Act (VII of 1947)--- ----S. 23-C(4)---Adjudication Proceedings and Appeal Rules, 1998, R.8---Constitution of Pakistan, Art. 10A---Right of appeal---Condition of deposit of penalty amount---Petitioner/Authority was aggrieved of setting aside of provisions of section 23-C(4) of Foreign Exchange Regulation Act, 1947 and Rule 8 of Adjudication Proceedings and Appeal Rules, 1998 by High Court declaring them as unconstitutional-- -Validity---Directing a party to deposit total amount of subject matter, before admission of his appeal is unreasonable, resulting into preventing that party from exercising its right of appeal, which violates its fundamental right of fair trial and due process, guaranteed by Article 10A of the Constitution---Such condition may not only deprive a party from its fundamental right of challenging a decision of executive authority before an independent and impartial higher forum but may also give a license to powerful executive to misuse its authority---Condition of depositing of fine amount imposed by section 23-C(4) of Foreign Exchange Regulation Act, 1947 is so excessive and unreasonable that it would amount to denial of right to appeal, which violates Article 10A of the Constitution, hence, it cannot sustain---Supreme Court declined to interfere in the impugned judgment passed by High Court as there was no illegality, irregularity or jurisdictional defect in the judgment---Petition for leave to appeal was dismissed and leave to appeal was refused. Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607; Federation of Pakistan's case PLD 1988 SC 202; Ministry of Defense's case PLD 1989 SC 6 and Messrs Eastern Rice Syndicate's case PLD 1959 SC (Pak) 364 rel. Per Shakeel Ahmed, J.: (c) Legislation--- ----Legislature, powers of---Scope---Legislature is sovereign within its domain of law-making but such sovereignty is not unfettered- --Legislature cannot enact any provision whatsoever which is inconsistent with, or violative of fundamental rights enshrined in the Constitution---Any such provision must be tested on the touchstone of Constitutionality and struck down if found to be inconsistent with fundamental rights. (d) Foreign Exchange Regulation Act (VII of 1947)--- ----Ss. 23-C(4) & 23J---Adjudication Proceedings and Appeal Rules, 1998, R.8---Constitution of Pakistan, Art. 10A---Right of appeal---Condition of deposit of penalty amount---Petitioner/Authority was aggrieved of setting aside of provisions of section 23-C (4) of Foreign Exchange Regulation Act, 1947 and Rule 8 of Adjudication Proceedings and Appeal Rules, 1998 by High Court declaring them as unconstitutional---Validity---Full mechanism for the recovery of sums due to the Government has been provided in section 23J of Foreign Exchange Regulation Act, 1947---In the light of such enforcement measures already available to the State, imposition of additional precondition of depositing penalty amount or furnishing security equivalent thereto under section 23-C(4) of Foreign Exchange Regulation Act, 1947 at appellate stage is wholly disproportionate and oppressive and does not serve to further any legitimate Governmental interest that is not already safeguarded under section 23-J of Foreign Exchange Regulation Act, 1947---Provisions of section 23-C(4) of Foreign Exchange Regulation Act, 1947, as well as Rule 8 of Adjudication Proceedings and Appeal Rules, 1988, which mandate a financial precondition for filing an appeal, constitute an unreasonable and unconstitutional restriction on the fundamental right of access to justice---Such provision disproportionately affects individuals with limited financials means, effectively denying them the opportunity to challenge adverse decisions---High Court had rightly declared section 23-C(4) of Foreign Exchange Regulation Act, 1947, as well as Rule 8 of Adjudication Proceedings and Appeal Rules, 1988, (to the extent that said Rule makes the receipt of an appeal subject to compliance with section 23-C(4) of Foreign Exchange Regulation Act, 1947), as unconstitutional/ultra vires of the Constitution and had rightly struck down the provisions---Petition for leave to appeal was dismissed and leave to appeal was refused. Shaikh Riaz-ul-Haq v. Federation of Pakistan PLD 2013 SC 501; Commissioner of Income Tax, Peshawar Zone, Peshawar v. Messrs Siemen A.G PLD 1991 SC 368; Surah An-Nisa (4:59); Federation of Pakistan v. Public at Large PLD 1988 SC 202; Pakistan v. General Public PLD 1989 SC 6; Messrs Chenab Cement Product (Pvt.) Ltd. v. Banking Tribunal, Lahore PLD 1996 Lah. 672 and Khan Asfandyar Wali v. Federation of Pakistan PLD 2001 SC 607 rel. Faisal Siddiqui, Advocate Supreme Court and Dr. Muhammad Usman, Advocate-on-Record for Petitioner. Rana Asadullah Khan, Addl. AGP for Respondent No. 1 Waqas Ahmad Mir, Advocate Supreme Court for Respondent No. 8. Respondents Nos. 2-7 not represented. Date of hearing: 20th March, 2025.

Summary: Control of Narcotic Substances Act (XXV of 1997)--- ----S.9---Possession and transportation of narcotics---Appreciation of evidence---Safe custody and safe transmission of the recovered substance to laboratory not proved---Prosecution case was that 10-kilograms charas lying in a bag was recovered from the possession of the accused---Complainant's testimony reflected that the charas was in a white sack when seized---Chemical analysts' report did not mention color of the bag in which the charas was sent---Contrary to the witness testimony, the charas de-sealed in Court was in a red sack---Memo. of recovery or the witness testimonies did not state whether anything was written or printed on the sack in which the charas was kept or on the charas inside---Complainant allegedly had a lapse of memory at trial and claimed that he could not remember whether anything was written---Memo. of recovery did not record any writing---However, complainant admitted that the charas de-sealed and shown to him in Court, apart from being in a different color bag, also had "555" (on some) and "Black Gold" (on others) written on it--- Said numbers were not mentioned in the FIR or the memo. of recovery---Chemical analyst's report showed that there were twenty patties of charas in the bag sent to him and that all the patties had "555" and a gold stamp printed on them---Complainant further acknowledged that plastic wrapping was also available in the sealed bag that was de-sealed in Court, the presence of which was also not mentioned in the documentation---An accurate description of the commodity seized must be written in the recovery memo.---Color and description of the narcotics seized, as well as the description of the packing and any visible marks, signs, photos, logos, and numbers on the seized articles, should be written in the recovery memo.---Description should tally with the description noted by the chemical laboratory when the package is sent to it and then with the case property produced at trial---Safe custody and transmission would be compromised if the seizure descriptions did not match---Prosecution failed to prove safe and secure custody and transmission, creating doubt---Prosecution failed to prove its case beyond a reasonable doubt---Appeal against conviction was allowed, in circumstances. Ameer Zeb v. The State PLD 2012 SC 380; Muhammad Arif v. The State 2023 YLR 2369; Khan Afzal and another v. The State 2022 PCr.LJ 52; Arzi Gul v. The State 2020 PCr.LJ 178 and Sherazad v. The State 2012 YLR 1042 rel. Abdul Baki Jan Kakar for Appellant. Ali Anwar Kandhro, Additional Prosecutor General, Sindh for the State. Date of hearing: 4th March, 2025. Judgment Omar Sial, J.--- Bahawal Sheikh was arrested on 24.09.2023 by A.S.I. Nazir Hussain Chandio from a graveyard when ten kilograms of charas were lying in a bag in front of him. FIR No. 195 of 2023, under section 9(d) of the Control of Narcotic Substances Act, 1997, was registered at the Foujdari police station in Shikarpur. 2. The prosecution story is that a police party headed by S.I. Nazeer Hussain Chandio and consisting of P.C. Abdullah, P.C. Shafique Ahmed, and D.P.C. Ali Ahmed Brohi was on regular patrol when it received information that notorious drug peddler Bhoroo Shaikh is present in a graveyard with charas in his possession. The police party went to the cemetery and saw a bag lying on the ground. Two people were standing close to it. One of the persons, Bhoroo Shaikh, ran away whereas the other, Bhawal Shaikh, the appellant, was arrested. 3. Shaikh pleaded not guilty and claimed to be tried. At trial, the prosecution examined S.I. Nazeer Hussain Chandio (the complainant); P.C. Abdullah Lohar Baloch, who witnessed the arrest and recovery, WPC Abdul Wahid, the maalkhana incharge and S.I. Ali Hussain Shah (the Investigating Officer). In his section 342, Cr.P.C. statement, Shaikh denied any wrongdoing and said that he was arrested from a graveyard on 24.09.2020, and that the charas belonged to Bhoroo Shaikh, whom the police had let go. Shaikh was convicted and sentenced to twenty years and a fine of Rs. 800,000. 4. We have heard the learned counsel and re-appraised the evidence. For brevity, their specific arguments are not being reproduced but are reflected in our observations and findings below. 5. We find the story presented by the prosecution to be somewhat unreal. A police party consisting of three armed and able-bodied men receives information from the ever-present "spy" that a notorious drug peddler, Bhoroo Shaikh, is present at an identified place and that he has narcotics with him. The police reach that place, which is a graveyard. In that graveyard, which evidence shows was a 25 acre of land, the police party reaches a spot where they see a white sack lying on the ground in front of two men, the allegedly notorious Bhoroo Shaikh, and the appellant, and while Bhoroo Shaikh manages to make his escape good, rather effortlessly, the appellant Bahawal Shaikh, keeps standing his ground and the police comes to him and arrests him. To us, the story is illogical and impractical, if not outright absurd. The recovery memo. refers to the entire 25-acre graveyard as the place of the occurrence. At trial, the prosecution witnesses struggled to explain precisely where the recovery occurred. The prosecution has no cogent argument to give whether it's even logical that a sane person, albeit a criminal, would stand and watch the police coming straight to him but still keep standing with 10 kgs of charas lying in front of him,all while the kingpin Bhoroo Shaikh manages to effortlessly escape from right under the noses of the raiding party that had come to get him specifically. Bhoroo was never arrested in this case, though the witness admitted that he lived in the same neighborhood. There could be some truth in what the appellant said in his section 342 Cr.P.C. statement that a Shaikh got a Shaikh and that Bhoroo is the actual offender, but the police have let him off due to some reasons. 6. Our astonishment at the prosecution story apart, we note an important legal aspect in this case. That is one of safe custody and transmission of the narcotics. This is not a run-of-the-mill case in which an important witness is not examined, and hence, the chain is broken. In this case, the prime question is how much relevance should be given to the packing and description of the charas. 7. S.I. Nazeer Hussain's testimony reflects that the charas was in a white sack when seized. The chemical analysts' report mentions no color of the bag in which the charas was sent in. Contrary to the witness testimony, the charas de-sealed in court was in a red sack. In his testimony, Nazeer Hussain acknowledged that "it is correct to suggest that the color of the bachka produced today is red with lining. It is correct to suggest that the color of the bachka is not white." 8. The memo. of recovery or the witness testimonies did not state whether anything was written or printed on the sack in which the charas was kept or on the charas inside. S.I. Nazeer Hussain Chandio had a lapse of memory at trial and claimed that he could not remember whether anything was written; however, the memo. of recovery does not record any writing. However, he admitted that the charas de-sealed and shown to him in court, apart from being in a different color bag, also had "555" (on some) and "Black Gold" (on others) written on it. These numbers are not mentioned in the FIR or the memo. of recovery. The chemical analysts' report shows that there were twenty patties of charas in the bag sent to it and that all the patties had "555" and a gold stamp printed on them. S.I. Nazeer Hussain Chandio. Chandio further acknowledged that plastic wrapping was also available in the sealed bag that was de-sealed in court, the presence of which was also not mentioned in the documentation. He also admitted that though he had recovered ten packets of charas, and the same was recorded in the FIR and memo, the bag opened at trial had twelve pieces of varying sizes of charas in it. This was in contradiction to what P.C. Abdullah Lohar Baloch said. He believed that the recovered chars were all in equally sized pieces. P.C. Abdullah Lohar Baloch also testified that he did not remember anything written on the bag or the charas packets. He justified it by saying that it was dark. We are unconvinced with such an explanation because if there was enough light for the policemen to draft memos. on the spot, there would surely be enough light to examine the charas. The seizing officer and the witness also remained at odds on whether they attempted to apprehend the fleeing Bhoroo Shaikh. According to the seizing officer, no attempt or effort was made by any member of the police party, whereas the witness to the recovery said that Bhoroo had been chased on foot by P.C. Shafique Ahmed, but he still managed to flee. Further doubt was created when P.C. Shafique Ahmed noted at trial that "only Allah knew who the actual owner of the charas was." 9. The central legal issue in the admissibility of narcotics evidence in court is the collecting officer's ability to recognize the evidence as the same evidence obtained from the accused or the crime scene. This is possible only if the evidence is collected correctly, marked, handled, and stored, and each step is comprehensively documented. This legal obligation is known as establishing the chain of custody. The chain of custody serves as a documented record detailing who possessed the evidence, from its collection to its destruction. This documentation safeguards the integrity of the evidence. Individuals who have handled the evidence form the "links" in the chain. Each transfer of the evidence introduces a new link. If any link in this chain is not recorded correctly, it compromises the chain, potentially rendering the evidence inadmissible in court. 10. The narcotics law, as it has evolved in the country, carries stringent punishments and leans heavily in favor of the State. We find it quite remarkable that the prosecution story is identical in nearly a hundred percent of the cases that come to this court (of smaller recoveries). A man is seen carrying a black shopping bag (which used to be inevitably blue in the 2014 to 2016 years) in often a crowded area, and miraculously, a police part on routine patrol sees him and finds him suspicious. Inevitably, narcotics are recovered from this person. Section 25 of the CNS Act, 1997 expressly excludes the applicability of section 103, Cr.P.C., and it has been held that police officers are good witnesses. In most cases, the complainant is the same as the investigator, and one wonders why an investigator would decide against himself. In such a situation, there is very little an innocent person can do if subjected to police excesses. The police often abuse the law to settle their scores. In such a situation, it becomes critical that for the very least, safe custody and transmission of the narcotics from the point of seizure to its deposit in the chemical laboratory is meticulously established and proved at trial. In Ameer Zeb v. The State (PLD 2012 SC 380), it was noted, "We may also observe that in such cases it is the accused person who is at the receiving end of long and stringent punishments and, thus, safeguards from his point of view ought not to be allowed to be sacrificed at the altar of mere comfort or convenience of the prosecution." 11. The reports that the chemical laboratories, particularly the Rohri laboratory, are issuing are stereotypical and, at times, dubious. A new trend started by the laboratory, which we find suspicious, is that the gross weight of the seized narcotics, according to the laboratory, is always twenty-five or forty grams above the one-kilogram or five-kilogram benchmarks. This happens when the memo. of arrest and recovery shows an exact amount of one or five kilograms having been seized. The benchmarks are essential as, in our country, the quantum of sentences is connected not to a sample's toxicity and narcotic content but to its weight. One wonders how when the seizing officer has weighed the narcotics, claims his measurement was accurate, and weighs the seizure with the packing of the narcotics, yet the gross weight he notes in the recovery memo. is always twenty-five to forty grams less than what the laboratory weighs it as. There are no descriptions or photographs of the seals affixed on the seizure packets when received by the laboratory, nor are there descriptions or pictures of the seals that the laboratory affixes on the packets after analysis. All that the report says is that the seals were "satisfactory." This does not mean anything. We have yet to come across a report which shows that the seals were in an "unsatisfactory" condition. Often, one wonders if the tests that the laboratory claims to have carried out are indeed conducted or if a favorable report stereotypically and mechanically is printed out. We fail to understand why law enforcement agencies do not take photographs of the seizure, sampling, and sealing process. The technology is available on nearly every phone carried by law enforcement. Indeed, the Supreme Court in Criminal Petition No. 1192 of 2023 also raised a similar concern -"If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure 3 and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. Non-compliance of law enforcers to take photographs unnecessarily raises doubts that the police may have an ulterior motive to do so. The Punjab Forensic Science Agency (the leading forensic laboratory in the country) recommends that the packet of the narcotic seizure should be sealed with a molten wax seal to document specimen integrity. A reference seal sample must also be attached along with the sealed packet. There is no reason for the chemical laboratories of this province not to do the same. 12. An accurate description of the commodity seized must be written in the recovery memo. The color and description of the narcotics seized, as well as the description of the packing and any visible marks, signs, photos, logos, and numbers on the seized articles, should be written in the recovery memo. This description should tally with the description noted by the chemical laboratory when the package is sent to it and then with the case property produced at trial. We are guided by the wisdom of the Supreme Court in the Ameer Zeb case (supra) when it noted, "We, reverently and respectfully, tend to agree with the latter view and would like to add that the rule of thumb for safe administration of criminal justice is: the harsher the sentence the stricter the standard of proof." Safe custody and transmission will be compromised if the seizure descriptions do not match. 13. It would not be out of place to record that a Division Bench of this Court in Mohammad Arif v. The State (2023 YLR 2369) has observed: "According to the prosecution, he had a black bag in his hand, however the same bag finds no further description neither in the memo. of arrest and recovery, nor in the FIR. Further description of the same however came forth in the deposition of PW-1 SIP Arz Muhammad who, while being cross-examined, admitted that the bag was in fact of navy blue colour and had "Old is Gold" inscribed on it. As per the prosecution case, the bag contained 10 packets of opium which were weighed and found to be 9.8 kilograms while 4 packets of charas were also found within the bag which were weighed and found to be 5 kilograms. These packets, so recovered, do not find any description as to the nature or content of the outer coverage of the same; whether they were wrapped in plastic, paper or cloth. These omissions strike at the core of the prosecution case as the same would have otherwise helped establish that the case property available in Court is in fact the same." 14. Another Division Bench of this Court in Khan Afzal and another v. The State (2022 PCr.LJ. 52) has observed, "We have also observed that while the samples drawn from each 1 kg packet were stated in the Memo. or Arrest and Seizure as well as the depositions of the prosecution witnesses to have been wrapped in white paper and then sealed, the Chemical Examiners Report shows each of the white paper packets received to have contained 4 black brown coloured pieces, each wrapped in plastic. Under the circumstances, this discrepancy casts further doubt in the matter." 15. The Lahore High Court in Arzi Gul v. The State (2020 PCr.LJ 178) has held: "On de-sealing the case property P-1 pertaining to accused Jan Marry the witness admitted it correct that a wrapper of dark brown colour is recovered from the parcel. He admitted that there is no white colour shopping bag in the sealed parcel. He further affirmed that charas present in the court is in the shape of countless small pieces and not in shape of slabs." This state of affairs has also raised question mark about safe custody and production of case property before the Court because case property according to own statement of prosecution witness was in shape of slabs and wrapped in white colour plastic shopping bag but case property produced in court was in wrapper of dark brown color and in shape of countless small pieces; meaning thereby that allegedly recovered charas has not been produced in the Court, which fact has also smashed the case of prosecution. Hence, neither safe custody nor production of allegedly recovered charas in Court could be proved by the prosecution." 16. In Sherazad v. The State (2012 YLR 1042), it was observed, "However Chemical Analyst states that 5 separate packets were delivered for chemical examination, three packets contained one slab each one packet contained two black and brown slabs each wrapped in a plastic panne and 5th packets contained multiple black, brown colored rods, each wrapped in plastic panne. We may observe here that neither in the FIR nor in the evidence of P.W.1 or P.W.2 any panne have been mentioned. If the sample was taken from 160 packets separately, how could there be three slabs in three packets and one packet containing two slabs? This creates first doubt around the story of the prosecution." 17. Given the above, the prosecution failed to prove safe and secure custody and transmission, creating doubt. This doubt and the fancy prosecution story make us conclude that the prosecution failed to prove its case beyond a reasonable doubt. The appeal is allowed, and the appellant is acquitted of the charge. He may be released forthwith if not required in any other custody case. JK/B-3/Sindh Appeal allowed.

Summary: (a) Negotiable Instruments Act (XXVI of 1881)--- ----S. 28---Civil Procedure Code (V of 1908), O.XXXVII, Rr. 1 & 2---Summary suit for recovery on the basis of dishonored cheques filed by the respondent against the CEO of the appellant company---Application for leave to defend by the CEO was dismissed on account of admissions and as a result the appellant company filed the appeal before the High Court---Appellant company took a plea that suit was filed against CEO instead of the company---The central moot point for determination by the High Court was whether a company, as a separate legal entity, could be held liable for a dishonored cheque issued in its name when the suit was filed against the CEO rather than the company itself---Specifically, the issue was whether the CEO, acting as an agent for the company, could be personally liable in such a suit or whether the company must be made a party to the suit, considering that the company was a distinct legal entity, and the CEO's actions were carried out in his capacity as the company's representative---Whether the failure to name the appellant company as a party to the suit, and instead filing the suit against the CEO, renders the suit fatal or defective---The appellant company sought to separate itself from its CEO at the appellate stage, claiming the CEO's actions were not representative of the company, despite previously accepting his role as the company's representative---Validity---It is settled law that company is a separate juristic entity from its employees and its employees / directors cannot be held responsible for the contractual obligations incurred by a company (with certain exceptions of personal guarantee, fraud etc. which are irrelevant for the instant purposes), but each case must be viewed on its own merits and circumstances---The summary suit was filed in the name of CEO but a perusal of the title page in the summary suit showed that the appellant company being named as the address for the CEO---The normal format would be to name the company first, being served through its CEO, but in the present case the respondent / plaintiff appeared to have done the opposite---Further perusal of the contents of the plaint revealed that the CEO and the appellant company, in essence, appeared to be one and the same---The CEO also never denied the liability being claimed by the respondent and answered the allegations as if he was the appellant company---The CEO was also instrumental in all proceedings throughout, including signing the agreement between parties, signing cheques, as well as putting up defence on the appellant's side---Perusal of leave to defend filed by CEO on behalf of the appellant company unequivocally showed that he was acting on behalf of the appellant company---Prayer clause of leave to defend also showed that CEO accepted liability on behalf of the appellant company---Such actions of the CEO appeared to have been endorsed by the appellant company as throughout the memo of appeal before the High Court the appellant company referred to the leave to defend application (filed by the CEO) as the appellant company's own---It was an imperative aspect of the matter that given such acknowledgment and endorsement by the appellant company regarding the acts of the CEO i.e. filing leave to defend by CEO on behalf of the company, and owning the same as if the same was filed by the company itself, at a later stage when final order had also been passed, backtracked by attempting to create a juristic person separation between the appellant company and its CEO---Moreover, such plea was only taken by the appellant company in appeal and not before the Trial Court---Such belated argument being submitted by the appellant company in itself was self-defeating inasmuch as on one hand the appellant company was claiming relief based on the separation from its CEO and on the other hand it was claiming enforcement of the same leave to defend application filed by their CEO---The appellant company attempted to thwart judicial proceedings by raising an issue of 'legal entity v. company employee' at such a belated stage---The appellant company could not blow both hot and cold i.e. accept the CEO as the appellant's representative when it suited them and then deny his authority when it did not---High Court also made emphasis on s.28 of the Negotiable Instruments Act, 1881 which provided that an agent acting on behalf of another by signing a cheque could also be held liable---In the pleading of the instant case the CEO acted on behalf of the appellant company and same was never denied by the appellant company---In view of the above the High Court rejected such contention of the appellant company as being without merit---Appeal was dismissed. Sh. Muhd Irfan v. Sitara Commission Shop and others 2005 SCMR 800 rel. Habib Bank Ltd. v. T & N Pakistan (Pvt.) Ltd. 2016 CLD 1782 ref. (b) Civil Procedure Code (V of 1908)--- ----O.XIV, R.1(6), O.XV, R.1, O.XII, R.12 & O.XXXVII, Rr. 1, 2---Qanun-e-Shahadat (10 of 1984), Art. 31---Judgment on admission---Admission in pleadings abolishing the need for further proof---Facts admitted need not be proved---Scope---Piercing the veil of incorporation---The appellant company and its CEO allegedly admitted owing the respondent Rs.57,000,000/- in their pleadings---Leave to defend application was dismissed on admission of liability---The Trial Court passed the impugned order based on the admission, raising the question of whether this admission was sufficient to support the decision---The Trial Court merely on the admission passed the impugned order---Validity---Where there is an admission in a pleading (such as written statement) there is no requirement for further proof---Leave to defend application could be dismissed where liability was admitted by CEO of the company---The appellant company at later stage could not disclaim its CEO from acting on its behalf considering the appellant company had repeatedly accepted / endorsed the CEO as its representative---The appellant company was estopped by its own conduct from claiming a juristic separative between itself and its CEO at such a belated stage---A piercing of the veil of incorporation would no doubt show the CEO and the appellant company to be one and the same i.e. CEO being the only person with whom the respondent had interacted---The signing of the agreement, cheques and all correspondence by the appellant company with the respondent were conducted through its CEO---The appellant company failed to show any illegality with the impugned order which was rendered entirely on admissions made by both the appellant company and its CEO through pleadings made under oath---The new plea of separating the CEO and the appellant company was also only taken at the appellate stage and was never raised earlier during trial proceedings---The CEO by purporting to substitute himself into the appellate proceedings had shown proximity with the appellant company---Appeal was dismissed, in circumstances. President v. Justice Shaukat Ali PLD 1971 SC 585 rel. Shaikh Javed Mir for Appellant. Muhammad Khalid Hayat for Respondent. Date of hearing: 25th February, 2025.

Summary: Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9---Civil Procedure Code (V of 1908), S. 20 & O. VII, R. 10---Suits for recovery of finances, filing of---Territorial jurisdiction, determination of---Scope---Suits to be instituted where defendants reside or cause of action arises---Determination---Applications for return of plaints filed by the appellants/defendants were dismissed by the Single Judge of High Court in terms of Clause "c" of S. 20, C.P.C.---Validity---Clauses "a", "b "and "c "of S. 20, C.P.C., are not mutually exclusive to one and other---It is not the scheme of S. 20, C.P.C. that in the cases where clause "a" is attracted, clause "b" and "c" would be excluded or in case clause "b" or "c" is attracted, clause "a" would be excluded and rendered irrelevant---Joint reading of clauses "a", "b" and "c" of S. 20, C.P.C., depicts that the plot thereunder is inclusively implying that if any of the provisions is attracted the plaintiff would have an option to take its benefit and file the suit accordingly---Three clauses are mutually beneficial to each other and provide to the plaintiff an opportunity to file the suit at either of the places transcribed thereunder---This could be a place where defendant (s) either resides, carries on business or personally works for gain, but in case, he resides at place "a", carries on business at place "b" and personally works for gain at place "c", then plaintiff will have liberty to file suit at either place, thus, the defendant cannot question maintainability of the suit on the ground that since he/she is living /residing at place "a", the plaintiff cannot file the suit at place "b", where he/she carries on business, because the proposition under S. 20, C.P.C. is not mutually exclusive or destructive, but inclusive, accommodative and beneficial---For deciding an application under O.VII, R. 10, C.P.C., the facts disclosed in the plaint are to be considered true on their face value for the purpose of deciding atleast territorial jurisdiction of the court to adjudicate the matter---All the facts narrated in the plaint prima facie show jurisdiction of the court at Karachi in the matter in terms of clause "c" of S. 20, C.P.C.---Appellants while making counter claim in the suit had admitted the territorial jurisdiction of the court at Karachi---When the appellants in their own written statement, while putting up counter claim, had accepted territorial jurisdiction of the court, their summersault in the shape of applications under O. VII, R. 10, C.P.C., at later stage could not be given much credence, not the least when in support of such applications nothing substantial had been brought before the court for excluding a consideration under clause "c" of S. 20, C.P.C., barring the fact that the respondents were residents of Lahore and particularly when by admitting the fact that certain activities benefiting the appellants had taken place at Karachi, the appellants had sealed the jurisdiction of the court at Karachi---High Court Appeals were dismissed, in circumstances. Wasif Riaz for Appellants. Akram Javed for Respondent.