Summary: Summary pending

Summary: (On appeal against the judgment dated 24.04.2019 passed by the learned Peshawar High Court, Peshawar in Criminal Appeal No. 330-P of 2018 and Murder Reference No. 13 of 2018). Penal Code (XLV of 1860)--- ----S. 302(b)---Qatl-i-amd---Re-appraisal of evidence---Recovery---Effect---Judicial confession---Proof---Benefit of doubt---Accused persons were convicted for qatl-i-amd---Male accused was sentenced to death while the female accused was sentenced to imprisonment for life---Validity---Recovery of Chaddar on pointing out of female accused was not stained with any incriminating material, like blood, froth, etc. of deceased---No Forensic Science Laboratory report was available on record regarding the Chaddar, which was available in every house---Recovery of Chaddar was not sufficient to connect accused persons with alleged offense---Prosecution also produced evidence of torn shirt of female accused from her possession, which was allegedly torn during the occurrence but no such statement was made by sole eyewitness that during the occurrence shirt of female accused was torn who had changed the shirt after the occurrence---Such recoveries were inconsequential for the prosecution---There was no independent corroboration of judicial confession of accused persons---Evidence of sole eyewitness was not worthy of reliance---Prosecution failed to prove its case against accused persons beyond shadow of doubt---If there was a single circumstance which had created doubt in prosecution case, the same was sufficient to acquit accused persons---Supreme Court set aside conviction and sentence awarded to accused persons as there were number of circumstances which had created serious doubts in prosecution's story---Resultantly accused persons were acquitted of the charge by extending them the benefit of doubt---Appeal was allowed. Arshad Hussain Yousafzai, Advocate Supreme Court for Appellants. Syed Kausar Ali Shah, Additional Advocate General Khyber Pakhtunkhwa for the State. Nemo for the Complainant. Date of hearing: 26th February, 2025.

Summary: (Against the order/judgment dated 27.01.2021 passed by the Islamabad High Court in Crl. A. No. 83 of 2017). (a) Medical jurisprudence--- ----Suicide and asphyxia death---Necessary ingredients---If ligature mark is not round the neck, eyes are closed, ribs are not fractured and hands are not clenched then the case is of suicide---Such a report raises a very high probability of asphyxia death and killing by hanging, which under all probabilities is deemed to be a suicide/unnatural death and not homicide at all. (b) Criminal trial--- ----Medical evidence---Scope---Medical evidence is just a corroborative piece of evidence which does not identify the assailant---At most medical evidence is a supporting piece of evidence which may confirm ocular evidence with regard to receipt of injury, its locale, kind of weapon used for causing injury, duration between the injury and death---Medical evidence cannot tell the name of the assailant. Zakir Hussain v. State 2008 SCMR 222 and Ata Muhammad v. State 1995 SCMR 599 rel. (c) Penal Code (XLV of 1860)--- ----S. 302---Qatl-i-amd--- Re-appraisal of evidence---Benefit of doubt---Thumb impression, matching of---National Database and Registration Authority (NADRA) record---Wife of accused died due to suicide but complainant produced an affidavit of deceased lady wherein she recorded apprehension to her life---Accused was convicted and sentenced on basis of such affidavit---Validity---Complainant produced an affidavit claiming to have been executed by deceased---Report of hand writing expert showed that thumb impression of deceased, available on record of NADRA, did not match with the thumb impression available on stamp paper allegedly executed by deceased recording apprehension to her life---On account of producing fake affidavit criminal case was lodged against complainant, which had lost his credibility---Alleged recovery of crime weapon from the room of accused was also not helpful for prosecution as the same was not stained with blood and no report of Chemical Examiner and Serologist was available on record---There was no need of many doubts in prosecution case, rather any reasonable doubt arising out of prosecution evidence pricking judicial mind was sufficient for acquittal of accused---Supreme Court set aside conviction and sentence awarded to accused and he was acquitted of the charge---Appeal was allowed. Tariq Pervez v. State 1995 SCMR 1345 rel. Fakhar Hayat, Advocate Supreme Court for Petitioner. Ms. Chand Bibi, DPG along with Sarfraz Ahmed, S.I. for the State. Date of hearing: 26th February, 2025.

Summary: Sales Tax Act (VII of 1990)--- ----S.7---Input tax, adjustment of---Electricity and gas supply bills---Residential colony of industrial unit---Authorities were aggrieved of adjustment of input tax against supply of electricity and gas to residential colony for workers established in factory premises---Validity---Residential colony of factory for the convenience of workers was provided within factory premises for unrestrained factory work---Entire premises was registered as one manufacturing premises---Had it been objected, the entire premises would not have been registered as one manufacturing unit---Supreme Court declined to interfere in conclusion drawn by Appellate Tribunal Inland Revenue as well as by High Court, as it was based on admission of facts regarding residential colony existing within registered factory premises---Petition for leave to appeal was dismissed and leave to appeal was refused. Sheikhoo Sugar Mills Ltd. and others v. Government of Pakistan and others 2001 SCMR 1376 = 2001 PTD 2097 rel.

Summary: Penal Code (XLV of 1860)--- ----Ss. 302(a) & 311---Criminal Procedure Code (V of 1898), S.340(1)--- Constitution of Pakistan, Art. 10-A---Qatl-i-amd, ta'azir after waiver or compounding of right of qisas in qatl-i-amd---Appreciation of evidence---Accused-appellant not represented by a defence counsel---Legality---It was an admitted position that the appellant faced the trial in a case involving capital punishment---Such like cases could only be proceeded with on the appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused by the Court at Government expense---Article 10(1) of the Constitution, also provided that the accused shall not be denied the right to consult and be defended by a legal practitioner of his choice---Under section 340(1), Cr.P.C., an accused has the right to be defended by a pleader in his trial before any criminal Court---Such right is of paramount importance and must be zealously guarded to protect the life and liberty of the citizens---If adequate opportunity of defence through a pleader is not provided to an accused, it would also be violative of the fundamental right regarding security of person enshrined under Arts.9 & 10-A of the Constitution---In the absence of proper opportunity of defence through counsel, an accused may be deprived of his life or liberty in violation of the law and would be denied fair trial and due process---Enjoying the protection of law and to be treated in accordance with the law is an inalienable right of every citizen as laid down under Art.4 of the Constitution---Record showed that earlier an advocate was appearing on behalf of the appellant before the Trial Court, who subsequently withdrew and, thereafter, the Trial Court examined three prosecution witnesses, recorded statement of the appellant under S.342, Cr.P.C. and convicted and sentenced him to death on the basis of evidence partly recorded in the absence of a counsel to which the appellant was entitled under the law---Thus, the conviction and sentence was not sustainable due to violation of said provision---Therefore, the case was remanded to the Trial Court with directions to enquire from the appellant if he intended to make his own arrangements for legal assistance, if not, a counsel be employed at Government expenses---Appeal was allowed, accordingly. Shafique Ahmed v. The State PLD 2006 Kar. 377; Sadam Hussain v. The State 2018 MLD 1025 and Syed Waris Khan v. The State 2018 MLD 422 rel. Sagar Ali Sathio for Appellant. Khadim Hussain Khuhro, Addl. Prosecutor General, Sindh for the State. Date of hearing: 26th February, 2025. Judgment Zafar Ahmed Rajput, J .--- The Criminal Jail Appeal is directed against the judgment, dated 26.08.2024, passed in Sessions Case No.186 of 2023, arising out of FIR No.67 of 2023, registered at P.S. Chuhar Jamali, Dist. Sujawal, under sections 302/311, P.P.C., whereby the 1st Additional Sessions Judge, Sujawal, convicted the appellant for the offence under Section 302(a), P.P.C., and sentenced him to death. While the Reference under section 374, Cr. P.C. has been submitted by the learned Sessions Judge, Sujawal for confirmation of death sentence. 2. At the very outset, learned counsel for the appellant as well as learned Addl. P.G have drawn our attention to the fact that at the time of examination of PW-2 Abdul Hameed, PW-3 Shabana and PW-4 Allah Dito, the appellant was unrepresented by a defence counsel; hence, the case is liable to be remanded to the Trial Court. 3. It is an admitted position that the appellant faced the trial in a case involving capital punishment. Under Paragraph-6 of Chapter VII of the Federal Capital and Sindh Courts Criminal Circulars, such like cases can only be proceeded with on the appearance of a qualified legal practitioner engaged by the accused himself or engaged for the accused by the court at Government expense. For the sake of convenience, the above referred Paragraph is reproduced, as under: - In all cases in a Court of Sessions in which any person is liable to be sentenced to death, the accused shall be informed by the Committing Magistrate at the time of committal, or if the case has already been committed, by the Sessions Court that, unless he intends to make his own arrangements for legal assistance, the Sessions Court will engage a Legal practitioner at Government expense to appear before it on his behalf. If it is ascertained that he does not intend to engage a legal representative at his own expense, a qualified Legal Practitioner shall be engaged by the Sessions Court concerned to undertake the defence and his remuneration, as well the copying expenses incurred by him, shall be paid by Government. The appointment of an advocate or pleader for defence should not be deferred until the accused has been called upon to plead. The advocate or pleader should always be appointed in sufficient time to enable him to take copies of the deposition and other necessary papers which should be furnished free of cost before the commencement of the trial. If after the appointment of such legal representative the accused appoints another advocate or pleader, the advocate or pleader appointed by the Court may still in its discretion be allowed his fee for the case. 4. It may be observed that Paragraph-6 ibid casts a duty on the trial court in the cases punishable with death, where the accused does not intend to make his own arrangement for legal assistance, then the court should make arrangement to engage a counsel at Government expenses. 5. In the case of Shafique Ahmed v. The State (PLD 2006 Kar. 377), it has been held that it is one of the duties of the Court of Sessions to see that the accused is represented by a qualified legal practitioner in cases involving capital punishment. Thus, it is the mandate of the law that cases involving capital punishment shall not be tried in the absence of Advocate for the accused or proceeded without first appointing an Advocate for the accused to defend him if he is unable to do so". In the case of Sadam Hussain v. The State (2018 MLD 1025), this Court has observed that "the trial Court is legally obliged to ensure that the accused has counsel of his choice or one appointed at State expenses, in the case involving capital punishment, if he could not afford". In the case of Syed Waris Khan v. The State (2018 MLD 422), this Court has held in a case of death sentence that "accused is entitled to be defended by a pleader as a matter of right and trial in absence of counsel for accused would become illegal and such illegality cannot be cured under section 537, Cr. P.C. 6. Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution") also provides that the accused shall not be denied the right to consult and be defended by a legal practitioner of his choice. Under section 340(1), Cr. P.C., an accused has the right to be defended by a pleader in his trial before any criminal court. This right is of paramount importance and must be zealously guarded to protect the life and liberty of the citizens. If adequate opportunity of defense through a pleader is not provided to an accused, it will also be violative of the fundamental right regarding security of person enshrined under Articles 9 and 10A of the Constitution which provide, respectively, "No person shall be deprived of life or liberty save in accordance with the law" and "a person shall be entitled to a fair trial and due process". In the absence of proper opportunity of defence through counsel, an accused may be deprived of his life or liberty in violation of the law and would be denied fair trial and due process. Enjoying the protection of law and to be treated in accordance with the law is an inalienable right of every citizen as laid down under Article 4 of the Constitution. 7. We have examined the facts of the present case in the light of the above provisions of law and laid down principles. It reflects from the perusal of the record that earlier Mr. Abbas Ali Jamari Advocate was appearing on behalf of the appellant before the Trial Court, who subsequently withdrew his power and, thereafter, the Trial Court examined three PWs; recorded statement of the appellant under section 342, Cr. P.C. and convicted and sentenced him to death on the basis of evidence partly recorded in absence of a counsel to which the appellant was entitled under the law; as such, the conviction and sentence is not sustainable due to violation of above mentioned provision. 8. For the foregoing facts and reasons, we allow this appeal and set aside the impugned judgment and remand the case to the Trial Court with directions to enquire from the appellant if he intends to make his own arrangements for legal assistance, if not, a counsel be employed at Government expenses, in whose presence three aforesaid PWs shall be re-examined after recalling them. After cross-examination the appellant be re-examined under section 342, Cr. P.C and if he wants to examine himself on oath and lead defence, opportunity be given to him, and after hearing final arguments from both sides shall decide the case afresh in accordance with law. 9. The instant Criminal Jail Appeal stands allowed in the above terms. The Reference stands answered accordingly. JK/A-69/Sindh Appeal allowed.

Summary: (a) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd common intention---Appreciation of evidence---Delay of about seven days in lodging the FIR---Consequential---Accused were charged for committing murder of the brother of complainant by firing---Occurrence took place on 12.09.2020 but it was reported to the police on 19.09.2020 on the flimsy grounds that Medico-Legal Certificate was not available with the Medical Officer---It was reaffirmed by a witness that injured was examined on 17.09.2020---Such delayed lodging of FIR raised serious doubts and questioned the truthfulness of the prosecution story and gave rise to probability of deliberation and consultation to cook up a false story---Appeal against conviction was allowed, in circumstances. Muhammad Zubair v. The State 2007 SCMR 437 rel. (b) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd common intention---Appreciation of evidence---Medical evidence---Possibility of death due to medical negligence during treatment---Accused were charged for committing murder of the brother of complainant by firing---After examination of victim, in injured condition by Medical Officer, his autopsy was then conducted straightaway by another Medical Officer---No doubt, the deceased was operated upon and had gone under medical treatment but such medical evidence and operation notes were not produced---Medical Officer mentioned it to be a hospital death and also mentioned three surgical injuries---Obviously, during the operation surgical injuries were caused by Medical Officer and in that way whether the deceased could have been saved by careful medical attention was not forthcoming in the prosecution story---In facts and circumstances, the possibility of criminal negligence could not be ruled out---Appeal against conviction was allowed, in circumstances. (c) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd, common intention---Appreciation of evidence---Presence of complainant at spot doubtful---Accused were charged for committing murder of the brother of complainant by firing---Complainant had not been able to point out to the Investigating Officers or draftsman the place where the bullet shot had hit since the deceased had sustained one injury but two fires were shot---Complainant had not been able to explain at which place the motor-cycle was parked by the assailant in the street which doubted his presence at the time of occurrence---Appeal against conviction was allowed, in circumstances. (d) Penal Code (XLV of 1860)--- ----Ss. 302(b), 324 & 34---Qatl-i-amd, attempt to commit qatl-i-amd common intention---Appreciation of evidence---Improvements in the statements of witnesses---Accused were charged for committing murder of the brother of complainant by firing---Complainant and the eye-witness had significantly improved their previous statements by introducing new facts and that was the reason why co-accused (father of the appellant) was acquitted---Eye-witnesses were doubted on their credibility of statements, but The Trial Court had given no convincing reasons, as to why such statements were not believable when it came to the culpability of co-accused but were relied upon when the appellant was to be convicted---Prosecution story was that deceased had sustained injuries but when he was examined by Medical Officer, he did not narrate about the name of the assailants---Investigating Officer did not record the statement of the Medical Officer about the fact whether victim was able to make a statement---Complainant and eye-witness had stated that deceased had made a statement before the Medical Officer but said statement was not available on the record---Appeal against conviction was allowed, in circumstances. Maqsood Alam and another v. The State and others 2024 SCMR 156 ref. Maqsood Alam and another v. The State and others 2024 SCMR 156 rel. Shahid Shaukat Ch., Muhammad Waqar Wattoo, Nosherwan Umar Tarar, Basharat Ali Mehmood, Salma Iqbal, Ch. Ahsan Gujjar and Ch. Tariq Mehmood Ghuman for Appellant. Maqbool Ahmad Qureshi Defence Counsel. Rao Muhammad Atif, Deputy District Public Prosecutor for the State. Talib Hussain Azad, Shahid Mahmood and Waheed Ahmad for the Complainant. Date of hearing: 26th February, 2025. Judgment Ali Baqar Najafi, J .--- Through this Jail Appeal under Section 410 Cr.P.C., the appellant, Abu Zar Ghafari, has challenged the judgment dated 27.11.2021 passed by the learned Additional Sessions Judge, Faisalabad, in case FIR No.1447/2020, registered under Sections 302, 324, 34 P.P.C. at Police Station Millat Town, District Faisalabad, whereby, the appellant was convicted and sentenced as under:- Convicted under Section 302(b) P.P.C. and sentenced to imprisonment for life (R.I) as Tazir. Convict shall also pay an amount of Rs.500,000/- compensation to the legal heirs of deceased. The compensation shall also be recoverable as arrears of land revenue. In default of payment of fine, the convict shall further undergo six months S.I. Benefit of Section 382-B Cr.P.C was given to the convict. 4. Briefly, the prosecution case, against the appellant, as disclosed in the complaint (Exh.PB) by Anwar-ul-Haq alias Bilawal/complainant (PW-8) is that on 12.09.2020 at about 07:15 p.m., Alam Sher (since acquitted) and his son namely, Abu Zar Ghafari, appellant both armed with pistol, along with two unknown persons, while riding on a motor-cycle CD-70, came to the house of complainant (PW-8). Alam Sher (since acquitted) was driving the motor-cycle, whereas, Abu Zar Ghafari/appellant was riding with him while armed with pistol. Two unknown persons were riding on another motor-cycle. They knocked the door of the house and when elder brother of complainant (PW-8) namely, Shahzad Ali, opened the door, the assailants started abusing him, meanwhile, the complainant (PW-8) came out of the house. Alam Sher made fire shot with his pistol which hit on the front abdomen of Shahzad Ali (deceased) and then he raised LALKARA to commit murder of Shahzad Ali, upon which, Abu Zar Ghafari/appellant made a straight fife shot with his pistol, which hit on the front of abdomen of Shahzad Ali deceased. The complainant (PW-8) refuged behind the door to save his life but Shahzad Ali fell on the ground and was seriously injured. Four bulbs were lit outside the house. The complainant (PW-8), Ali Asghar (since given up) and Waris Ali (PW-9) witnessed the occurrence but due to fear, they did not come forward. Shahzad Ali was shifted to Allied Hospital through rescue 1122 in injured condition but on 01.10.2020 he died in the hospital. On 19.09.2020, the complainant moved an application (Exh.PB) for registration of FIR. The motive behind the occurrence was that Alam Sher (since acquitted) was a truck driver, who had a quarrel with one Sajawal, the brother of the complainant (PW-8), due to which the murder was committed. 3. After completion of investigation, report under Section 173 Cr.P.C. was prepared and challan was submitted before the learned trial court. The charge was framed against the appellant and Alam Sher who pleaded not guilty and claimed trial. The prosecution produced 11 witnesses in total. Mehmood Akbar Nizami, draftsman, (PW-1), prepared the scaled site plan (Exh.PA and Exh.PA/1), Muhammad Kashif constable chalked out formal FIR (Exh.PB/1), received sealed parcel of two empties of 30-bore pistol and parcel of blood stained earth from Jameel Arshad A.S.I (PW-7) for safe custody in the Malkhana of Police Station and for onward transmission to the office of PFSA, Muhammad Tariq Waseem constable (PW-3), received dead body of Shahzad Ali (deceased) outside the emergency ward of Allied Hospital, Faisalabad after post-mortem examination and Medical Officer also handed over to him last worn clothes of deceased i.e. Shalwar (P-1), Dr. Ehsan Ahmad (PW-4) Senior Demonstrator, Punjab Medical College, conducted the post-mortem examination of Shahzad Ali (deceased), Dr. Sultan Mehmood (PW-11) conducted the medical examination of Shahzad Ali, when he was in injured condition and issued M.L.C No.38/20 (Exh.PP), Muhammad Akram Inspector (PW-5), conducted the 1st investigation, Arshad Ali S.I (PW-6) also conducted the 3rd investigation, Jameel Arshad A.S.I (PW-7) conducted the first investigation, Imran Javed S.I (PW-10) is also the investigating officer, whereas, Anwar-ul-Haq alias Balawal (PW-8) was the complainant of the case and Waris Ali (PW-9) was the eye-witness of the occurrence. In documentary evidence, prosecution produced scaled site plan (Exh.PA and Exh.PA/1), complaint (Exh.PB), FIR (Exh.PB/1), front desk online complaint (Exh.PB/4), recovery memo. of last worn clothes of deceased (Exh.PC), Post-Mortem Examination Report of deceased Shahzad Ali (Exh.PD), Pictorial diagrams (Exh.PD/1 and Exh.PD/2), injury statement (Exh.PE), inquest report (Exh.PF), recovery memo. of pistol (Exh.PG), unscaled site plan of place of occurrence (Exh.PH), recovery memo. of motor-cycle (Exh.PJ), recovery memo. of two live bullets (Exh.PK), recovery memo. of blood stained cotton (Exh.PL), recovery memo. of four bulbs (Exh.PM), unscaled site plan (Exh.PN), M.L.C No.38/2020 of injured Shahzad Ali (Exh.PP), Firearm and Toolmarks Examination Report (Exh.PR), injury statement (Exh.PR/1), letter regarding obtaining expert opinion (Exh.PR/2), Forensic DNA and Serology Analysis Report (Exh.PQ) and closed the prosecution evidence. 4. In answer to the question "Why this case has been registered against you and why the PWs deposed against you", he stated as under:- "It is a false, concocted and afterthought story. Actually both parties are truck driver. They have some privial matters regarding money. This is unseen, blind murder case. I was booked in this case due to money matters. PWs are interested and inter-se related." The appellant opted not to depose under Section 340(2) Cr.P.C. and also not to produce defence evidence. 5. Learned counsel for the appellant contends that there is a delay of eight days in lodging of FIR without mentioning any specific time of occurrence; Anwar-ul-Haq alias Bilawal/complainant (PW-8) and Waris Ali (PW-9) eye-witness are the chance witnesses; the M.L.C does not support the ocular account; the motive part has been disbelieved by the learned trial court and the recoveries were not proved. Adds that on the same set of witnesses, Alam Sher was acquitted by the learned trial court and there is no dying declaration of Shahzad Ali (deceased) despite the fact that he remained alive for eight days. Learned counsel relied upon case law titled "Maqsood Alam and another v. The State and others" reported as (2024 SCMR 156) and prays for the acquittal of the appellant. 6. Conversely, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant submits that prosecution has proved its case beyond any shadow of doubt and prayed that appal may be dismissed. 7. Arguments heard. File perused. 8. The prosecution case is comprised of eye-witnesses namely Anwar-ul-Haq alias Bilawal (PW-8) and Waris Ali (PW-9), the medical evidence of Dr. Ehsan Ahmad (PW-4) and Dr. Sultan Mehmood (PW-11), the investigation was conducted by four PWs i.e. (PW-5, PW-6, PW-7 and PW-10), the scaled site plan was prepared by Mehmood Akbar Nizami (PW-1). The evidence is being discussed under separate headings as under:- OCCULAR ACCOUNT 9. Anwar-ul-Haq alias Bilawal (PW-8) is the complainant, who narrated the story of the FIR by stating that on 16.09.2020 he filed an application (Exh.PB) on Front Desk of the Police Station for registration of FIR. On 01.10.2020, Shahzad Ali had died in the Allied Hospital and he recorded his supplementary statement before the police as a complainant (PW-8). On 12.11.2020, he joined the investigation and Abu Zar Ghafari/appellant got recovered pistol 30-bore (P-2) from an open plot situated at FDA City Faisalabad and also recovered two live bullets, which were taken into possession vide recovery memo. (Exh.PG). In cross-examination, he admitted that time of occurrence was not mentioned in the application (Exh.PB). He denied the suggestion that time of occurrence was 07:15 p.m. but admitted that he moved the application on 12.09.2020 instead of 16.09.2020. However, no application of this date was available on the police record when checked by the court. He admitted that the police recovered two empties of pistol 30-bore but volunteered that on 19.09.2020, the site plan was prepared by the Investigating Officer. He admitted that he did not point out any marks of gun shot on the wall either to the draftsman or to the Investigating Officer. He also admitted that he filed an application to the police on 16.09.2020 and before that he did not file any application for registration of the FIR, since the police demanded copy of the M.L.C of the injured. He admitted that Shahzad Ali (deceased) remained admitted in the Allied Hospital for 18/19 days and during this period, the Investigating Officer did not record the statement of any witness or the injured in the hospital but recorded the statement of his brother (injured) in the hospital. However, on checking no such statement is available on the record. He stated that his brother Sajawal was produced before the Investigating Officer but his statement under section 161 Cr.P.C was recorded but it is not available on the record. He also admitted that he did not move any application in respect of the motive of the occurrence before 12.09.2020. He admitted that female members of his family were not produced before the police during the investigation. He stated that one Malik Latif resident of same locality was produced but his statement under section 161 Cr.P.C is also not available on the record. He did not produce C.D.R of his cell phone and also not recorded the statement of any official of rescue 1122 or 15. He admitted that his late brother was a truck driver. 10. Waris Ali (PW-9), the eye-witness reiterated the same story of FIR as narrated by the complainant (PW-8) and stated motive that Alam Sher (since acquitted) was a truck driver who had a quarrel with his son namely, Sajawal (not cited as witness). The police took two empties of pistol and blood soak cotton from the place of occurrence, which was taken into possession vide recovery memo. (Exh.PK) and also took into possession the four bulbs (P-3/1-4) vide recovery memo. (Exh.PM). In cross-examination he stated that he was standing outside the house with Ali Asghar (not produced), which was confronted with his previous statement (Exh.DA), where it was stated that both were standing in the street. He admitted that he did not visit the hospital on 12.09.2020, whereas, on 19.09.2020 the police visited the place of occurrence. He stated that statement of Shahzad Ali (deceased) was recorded by the police in Allied Hospital but it was not available on the file despite checking. He admitted that police found Alam Sher (since acquitted) as innocent during the investigation and the complainant side did not file any application for the change of investigation. 11. These two witnesses have made significant improvements in their previous statements recorded under section 161 Cr.P.C. and have not been able to satisfactorily explain as to why the occurrence dated 12.09.2020 was reported to the police on 19.09.2020, i.e. after 07 days, particularly when M.L.C (Exh.PP) had already been issued prior on 17.09.2020 by Dr. Sultan Mehmood (PW-11). This has raised suspicion about their presence at the time of occurrence. MEDICAL EVIDENCE 12. Dr. Sultan Mehmood (PW-11) conducted the physical examination of Shahzad Ali, when he was brought to Allied Hospital on 12.09.2020 at 08:15 p.m. in injured condition. As per brief history, it was a case of firearm injury inflicted on 12.09.2020 at 7.15 p.m. due to some parking dispute. He had observed following injures:- Injury No.1 An entry wound inverted margin and abrasion coller _ cm x _ cm on left side lower abdomen, 10 cm below and 4 cm left to umbilicus. Injury No.2 An exit wound with everted margin, 2 cm x 1 cm on left hypochondrium, 8 cm above and 4 cm left to umbilicus. Both injuries were kept under observation. The X-Ray abdomen pelvis, ultrasound of abdomen pelvis and surgical notes were prepared. In his opinion, it was a firearm injury. In cross-examination, he stated that the injured was stable at the time of his examination but he did not name the assailants in the column of history of M.L.C. Shahzad Ali put his thumb impression on the M.L.C and the medical report was handed over to Anwar-ul-Haq/complainant (PW-8). The injured arrived at the hospital on 17.09.2020 at 08:15 p.m. and before said date he did not conduct any medical examination. It means that his medical examination was not conducted on 12.09.2020. 14. Dr. Ehsan Ahmad (PW-4) conducted the autopsy on the dead body of Shahzad Ali (deceased). The dead body was received in the hospital on 01.10.2020 at 08:45 a.m. and he conducted the post-mortem examination at 11:10 a.m. after receiving complete documents. On external examination, he noted that the rigor mortis was developed. According to M.L.C conducted on 17.09.2020 (not on 12.09.2020), he had undergone exploratory laparotomy operation. The deceased was received in emergency of Allied Hospital at 01.15 a.m. as expired as mentioned in the death certificate. The deceased was having laparotomy scar on front and middle of abdomen, colostomy bag was attached and a 04 cm stitched wound on left side of abdomen was present. 100 ML of blood was found present in abdominal cavity on dissection. The death occurred due to firearm injury (as stated in M.L.C) and its complication leading to hemorrhagic shock which was sufficient to cause death in ordinary course of nature. The probable time of death and post mortem was 12-hours and that it was a hospital death. In cross-examination, he admitted only three surgical injuries were mentioned in injury statement (Exh.PE) and also in the inquest report (Exh.PF), which were the only injuries observed by him. 14. The injured was operated prior to his death but surprisingly the prosecution has not produced the relevant Medical Officer who operated the deceased. INVESTIGATION 15. Mehmood Akbar Nizami (PW-1), draftsman, visited the place of occurrence on 04.10.2020 on the asking of Muhammad Akram S.I. No PW pointed out any portion of the wall or outer door where the fire had hit or the motor-cycle was parked. 16. Muhammad Kashif, constable (PW-2) deposited two empties of pistol 30-bore and blood coop cotton, after receiving it from Jameel Arshad A.S.I (PW-7), for safe custody in Malkhana of Police Station and onward deposited in the office of PFSA thus its custody remained safe. He admitted that he did not receive any application or any information regarding the of occurrence on 12.09.2020. It was 19.09.2020, when Jameel Arshad A.S.I (PW-7) received application for registration of FIR. 17. Muhammad Tariq Waseem, Constable (PW-3) received the dead body and handed it over and last worn clothes to the Investigating Officer. 18. Muhammad Akram Inspector (PW-5) conducted the 2nd investigation, arrested the appellant on 01.11.2020 and got his physical remand. In cross-examination he admitted that neither any mark on the outer wall nor at place of parking of motor-cycle was pointed out. He admitted that complainant (PW-8) did not hand over to him any admission slip, discharge slip or any operational notes of the injured/deceased. He, however, admitted that six witnesses appeared before him on behalf of the complainant (PW-8), who did not disclose any role of any of the accused persons and they also did not mention the name of any eye-witness. 19. Arshad Ali S.I (PW-6) also conducted the investigation after 08.11.2020. On 12.11.2020, he got recovered pistol 30-bore from Abu Zar Ghafari/appellant and registered separate FIR. He took into possession the motor-cycle bearing registration No.9967-SLM United 70 CC produced by Sajjad son of Yaqoob, as the motor-cycle was used by appellant on the day of occurrence, which was taken into possession vide recovery memo. (Exh.PJ). In cross-examination, he admitted that no proof of resident of appellant at Zeenat Town District Faisalabad was provided to him. He admitted that Alam Sher was not found involved in the occurrence and he did not collect the C.D.R Data of Abu Zar Ghafari/appellant of the day of occurrence. Sajawal was not produced by the complainant as a witness before him during the investigation and that no witness in support of motive part was produced before him. He also admitted that ownership of said motor-cycle of Abu Zar Ghafari/appellant was not produced. He also admitted that no motor-cycle number was mentioned in the FIR. He did not record statement of Sajawal son of Yaqoob, who produced the motor-cycle. 20. Jameel Arshad A.S.I (PW-7) also conducted the 1st investigation. On 19.09.2020, he received information on rescue 15, reached at the place of occurrence, took into possession two empties of the pistol (Exh.PK), four bulbs (P-3/1-4) vide recovery memo. (Exh.PM) and went to the hospital, where injured was not able to record his statement. He received the application for registration of FIR (Exh.PB) on 19.09.2020. He prepared unscaled site plan (Exh.PN), recorded the statement of witnesses under section 161 Cr.P.C. He handed over sealed parcel of blood stained cotton, bulbs and empties to the Moharrar for safe custody in Malkhana and on 01.11.2020, he received the parcel and deposited it in the office of PFSA. On 30.09.2020 at 30:30 a.m. he received message that Shahzad Ali had expired in the hospital and thereafter, Section 302 P.P.C. was added. In cross-examination, he admitted that he did not mention in his case diary about receiving of call from rescue 15. He admitted that on 12.09.2020, he did not record the statement of complainant and eye-witness under section 161 Cr.P.C. He admitted that on 12.09.2020, 8/10 persons were present at the place of occurrence but none of them recorded their statement under section 161 Cr.P.C. He did not mention this fact that on 12.09.2020 the dead body was shifted to the hospital by officials of rescue 1122. He did not move any application to the M.S Allied Hospital to record the statement of injured Shahzad Ali. He stated that he did not mention the fact of receiving M.L.C of Shahzad Ali. He admitted that the date 12.09.2020 is not mentioned in the recovery memo. (Exh.PB). He admitted that Shahzad Ali did not die on 19.09.2020 but inadvertently he mentioned 302 P.P.C. on 19.09.2020. He admitted that he mentioned in his case diary that on 24.09.2020 that Shahzad has been discharged from the hospital but the complainant did not produce the discharge slip. CONCLUSION 21. Scanning the prosecution evidence, the following important points have been noted:- Firstly: The occurrence took place on 12.09.2020 but it was reported to the police on 19.09.2020 on the flimsy grounds that M.L.C was not available with the Medical Officer. This date was confronted and then it was reaffirmed by other witness (PW-9) that injured was examined on 17.09.2020. Such delayed lodging of FIR give serious doubts and questions the truthfulness of the prosecution story and gave rise to the deliberation and consultation to cook up a false story. Reliance is placed upon case, titled "Muhammad Zubair v. The State" reported as (2007 SCMR 437). Relevant extracts from para 4 are reproduced as under:- "4. ...... Generally delay in lodging FIR cannot in all cases lead to the inference that the case set up in the FIR is necessarily true or false, however, it is relevant circumstance to be considered......" Secondly: After examination of Shahzad Ali, in injured condition by Dr. Sultan Mehmood (PW-11), his autopsy was then conducted straightaway by Dr. Ehsan Ahmad (PW-4). No doubt, the deceased was operated upon and had gone under medical treatment but such medical evidence and operation notes were not produced. The doctor mentioned it to be a hospital death and also had taken three surgical injuries only because death was due to firearm injury, as stated in the M.L.C and its complication leading to hemorrhagic shock, which was sufficient to cause death in the ordinary course of nature. Obviously, during the operation surgical injuries were caused by Dr. Sultan Mehmood (PW-11) and in this way whether the deceased could have been saved by a careful medical attention is not forthcoming in the prosecution story. In facts and circumstances, the possibility of criminal negligence cannot be ruled out. Thirdly: The complainant has not been able to point out to the Investigating Officers or draftsman (PW-1) the place where the bullet shot had hit since the deceased had sustained one injury but two fires were shot. He has not been able to explain on which place, the motor-cycle was parked by the assailant in the street which doubts his presence at the time of occurrence. Fourthly: Anwar-ul-Haq alias Bilawal (PW-8) and Waris Ali (PW-9) both and significantly improved their previous statements by introducing new facts and that is the reason why co-accused Alam Sher, father of the appellant, was acquitted. Fifthly: When the eye-witnesses were doubted on their credibility of statements, the learned trial court had given no convincing reasons, as to why it was not believable when it came to the question of culpability of Alam Sher and relied upon when the appellant was to be convicted. Reliance can be placed upon "Maqsood Alam and another v. The State and others" reported as (2024 SCMR 156). Relevant extract at Page 162 is reproduced as under:- "When the ocular account of the two eye-witnesses had been disbelieved by the learned Trial Court against the acquittal co-accused, who was alleged to have played a similar role in the occurrence, then the same evidence could not be relied upon to convict the petitioner on capital punishment unless there was an independent corroboration and some strong incriminating evidence to the extent of his involvement in commission of the offence but as discussed above the same is lacking in the instant case." Sixthly: It is the prosecution story that deceased had sustained injuries and which he was examined by Dr. Sultan Mehmood (PW-11), he did not narrate about the name of the assailants. The Investigating Officer did not record the statement of the doctor about the fact whether Shahad Ali was able to make a statement. The complainant (PW-8) and eye-witness (PW-9) have stated that deceased had made a statement before the Doctor but said statement is not available on the record. Hence, with this background, the prosecution's evidence cannot be relied upon to sustain the conviction of the appellant. 22. In this view of the matter, the prosecution has failed to prove its case against the appellant beyond any reasonable doubt. Resultantly, this Criminal Appeal is allowed. The appellant is acquitted of the charges levelled against him. He is jail and shall be released for with, if not required in any other case. JK/A-21/L Appeal allowed.

Summary: COMMISSIONER INLAND REVENUE, LEGAL LTO, KARACHI Versus MATIARI SUGAR MILLS, KARACHI (Against the judgment dated 04.02.2021 of the High Court of Sindh, Karachi passed in Special Sales Tax Appeal No. 148 of 2005]. Civil Appeal No. 316 of 2022 and Civil Petition No. 483-K of 2021, decided on 26th February, 2025. Sales Tax Act (VII of 1990)--- ----S.7---Input tax, adjustment of---Electricity and gas supply bills---Residential colony of industrial unit---Authorities were aggrieved of adjustment of input tax against supply of electricity and gas to residential colony for workers established in factory premises---Validity---Residential colony of factory for the convenience of workers was provided within factory premises for unrestrained factory work---Entire premises was registered as one manufacturing premises---Had it been objected, the entire premises would not have been registered as one manufacturing unit---Supreme Court declined to interfere in conclusion drawn by Appellate Tribunal Inland Revenue as well as by High Court, as it was based on admission of facts regarding residential colony existing within registered factory premises---Petition for leave to appeal was dismissed and leave to appeal was refused. Sheikhoo Sugar Mills Ltd. and others v. Government of Pakistan and others 2001 SCMR 1376 = 2001 PTD 2097 rel. Dr. Farhat Zafar, Advocate Supreme Court, Dr. Ishtiaq Ahmed Khan, Director-General, Law, FBR and Sharif Ullah, AD, Legal for Appellant (in C.A. No. 316 of 2022). Isaac Ali Qazi, Advocate Supreme Court for Respondents (in C.A. No. 316 of 2022). Irfan Mir Halepota, Advocate Supreme Court, Mrs. Abida Parveen Channar, Advocate-on-Record, Sharjeel Ahmed, Addl. Commissioner, FBR for Petitioner (in C.P. No. 483-K of 2021) (via video link from Karachi). Nemo for Respondent (in C.P. No. 483-K of 2021). Date of hearing: 26th February, 2025.

Summary: Specific Relief Act (I of 1877)--- ----Ss. 42 & 54---Qanun-e-Shahadat (10 of 1984), Arts. 123 & 124---Suit for declaration and injunction---Missing person---Proof---Hearsay evidence---Owner of suit land was issueless who had two brothers and one sister---Through sale mutation the owner transferred a portion of his land in favour of defendant/brother---Thereafter the owner had gone missing and remaining suit land was transferred through mutation of inheritance in favour of defendant/brother and defendant/ sister considering him (the owner) dead---Plaintiffs were successors-in-interest of third brother who did not get any share from suit land---Suit filed by plaintiffs was decreed and mutations in question were declared invalid---Validity---Statement of plaintiff could not be relied upon as he was a minor at the time of his father's death, and he had not stated who told him that his father was unaware of the sale---Such statement of plaintiff was treated as mere hearsay---Where original owner did not opt to contest sale mutation while alive, his death could not confer any rights or standing upon his descendants to challenge such sale---Plaintiffs lacked standing, and their claim was barred by time limitations imposed by law---If evidence shows a person was alive within thirty years prior to the date when question of his status arises, there is a presumption that he is still alive---Burden of proof then falls upon the party asserting his death---Such presumption is susceptible to rebuttal under Article 124 of Qanun-e-Shahadat, 1984---If it can be demonstrated that such a person has not been heard of for a period of seven years by those who would naturally have maintained contact with him, the burden of proof then shifts to those claiming the person is still alive---Predecessor-in-interest of plaintiffs predeceased his brother, thus, he had no claim to any inheritance from him---Plaintiffs lacked legal standing necessary to challenge validity of mutation of inheritance as they could not substantiate their claim to any share of inheritance---Supreme Court set aside judgments and decrees passed by the Courts below as none of the Courts below properly appreciated such aspect of the matter, and had misdirected themselves, holding that inheritance mutation was void---Supreme Court declared that both sale mutation and inheritance mutation were valid---Appeal was allowed. Gauhar Rehman v. Jan Ashbi and another 1990 SCMR 1586; Abdul Haq and another v. Mst. Surrya Begum and others 2002 SCMR 1330; Mst. Rakhi Bivi v. Rahat Bibi (7.N.W.191 at 192-93); The Hedaya, Page-216; Mazhar Ali and others v. Budh Singh and others (1884) ILR 7 All. 297; Sir John Woodroffe and Amir Ali's "Law of Evidence", 15th Edition (199 1) at PP 672- 673; Goods of Ganesh Das Aurora (deceased) AIR 1926 Cal. 1056; Jeshankar Revashankar v. Bai Divali (1919) 22 Bombay Law Reporter 771; Ramabai and others v. Sarawathi and others AIR 1953 Tra.Co.114; Muhammad Sarwar and another v. Fazal Ahmad and another PLD 1987 SC 1; Lal Hussain v. Mst. Sadiq and another 2001 SCMR 1036 and Perveen Shoukat v. Province of Sindh and others PLD 2019 SC 710 rel. Altaf Ahmad, Advocate Supreme Court for Appellants (in C.A. No. 44-P of 2012). Zia ur Rehman Khan, Advocate Supreme Court for Appellants (in C.A. No. 62-P of 2012) via video link from Branch Registry Peshawar. Altaf Ahmad, Advocate Supreme Court for Respondents (in C.A. No. 62-P of 2012). Zia ur Rehman Khan, Advocate Supreme Court for Respondents (in C.A. No. 44-P of 2012) via video link from Branch Registry Peshawar. Date of hearing: 26th February, 2025.

Summary: (a) Criminal Procedure Code (V of 1898)--- ----Ss. 154, 173 & 561-A---Penal Code (XLV of 1860), Ss. 302(b) & 34---Inherent powers of High Court---Quashing of order---Judicial Magistrate, after taking cognizance of the case, issued directions that the accused/applicants be sent to trial in a case registered under Ss.302 & 34, P.P.C---Validity---Accused/applicants were charged for committing murder of the nephew of complainant---Accused/applicants alleged that the deceased committed suicide---Through present application, the applicants had challenged the order of the Judicial Magistrate, wherein cognizance was taken under Ss.302 & 34, P.P.C---Offence under S.302 P.P.C fell exclusively with the jurisdiction of the Court of Sessions, the matter was accordingly referred to the appropriate forum---Authority of a Judicial Magistrate to diverge from the Investigating Officer's conclusions was confined solely to instances where a report sought disposal of the case or eliminates a specific section of the charges---In such circumstances, the Judicial Magistrate, upon examining the evidence, may independently form an opinion, diverging from that of the Investigating Officer and take cognizance of the offence by accepting the challan or reinstating the omitted charges---Record showed that charge had been framed in the subject case by the Trial Court---Since, the charge had been framed by the Trial Court, it was only appropriate that the applicants sought redressal of their grievance from the said forum, in accordance with law---Any factual determination made by the High Court at this stage may inadvertently prejudice the case of either party---Applicants were at liberty to approach the Trial Court and avail any remedy permissible under the law---Criminal Miscellaneous Application was dismissed, in circumstances. 2006 PCr.LJ 518; 2016 PLD Sindh 300; 2006 MLD 663; 1994 SCMR 122 and 2002 SCMR 1076 ref. Jalal and 2 others v. The State and another 1972 SCMR 516; Habib v. The State 1983 SCMR 370; Abdul Hafeez Junejo v. The State 2010 SBLR 306 and Amanat Ali v. 1st Civil Judge and J.M Daharki and others 2015 YLR 2312 rel. (b) Criminal Procedure Code (V of 1898)--- ----S. 561-A---Inherent power of the High Court---Observations of the Court made while deciding an application under S. 561-A, Cr.P.C---Such observations are tentative in nature and should not prejudice the case of either party at the trial. Ghulam Mustafa Channa for Applicants. Faqir Rehmatullah Hisbani for Respondent No. 3. Ms. Sana Memon, APG for the State. Date of hearing: 17th February, 2025. Order Abdul Hamid Bhurgri, J .--- Through this Criminal Miscellaneous Application filed under Section 561-A Cr.P.C, the applicants have challenged the order dated 18.12.2024, passed by the learned Civil Judge and Judicial Magistrate-VI, Hyderabad. The impugned order was issued in response to the report submitted by the Investigating Officer under Section 173 Cr.P.C, whereby the learned Magistrate concurred with the Investigating Officer's findings and directed that the accused/applicants be sent to trial in Crime No.47 of 2024, registered under Sections 302 and 34 P.P.C at Police Station B-Section Latifabad, Hyderabad. Consequently, this Criminal Miscellaneous Application has been filed. 2. The brief facts of the case, as narrated in the FIR, are that the complainant is the uncle of Abdul Rehman (deceased). According to the FIR, Abdul Rehman was employed at the clinic of the applicant/accused Dr. Mehwish and had been residing at her residence for the past five years. On 16.03.2024, the complainant received a phone call from the applicant/accused Dr Saddam, informing him that Abdul Rehman had committed suicide and that his body was at Hilal-e-Ahmar Hospital. Upon receiving this information, the complainant, accompanied by his cousin Zulfiqar Ali and Abdul Malik, arrived at the hospital, where Dr Saddam stated that Abdul Rehman had taken his own life by hanging himself from a bathroom hanger at approximately 23:30 hours on 15.03.2024. By the time they arrived, the post-mortem examination had already been conducted. Upon inquiry as to why the post-mortem was performed before their arrival, Dr Saddam failed to provide a satisfactory response. Subsequently, the complainant approached the police station and lodged an FIR, alleging that the applicants/accused Dr Mehwish, Dr Naeem, and others had murdered his nephew Abdul Rehman, who had been residing and working at Dr Mehwish's clinic and residence. 3. The learned counsel for the applicants argued that the impugned order was issued without proper judicial application of mind and in a premeditated and mechanical manner, relying on erroneous assumptions. He contended that the deceased had been residing and working at the clinic of Dr Mehwish, who is a senior gynecologist of BPS-19, while co-accused Dr Naeem and Dr Saddam are also senior government-employed doctors. Given their professional standing, they could not have committed any offence. The post-mortem report explicitly indicated that the deceased had died by suicide, as no signs of violence were found on his body. Furthermore, a second post-mortem, conducted under the order of the learned Magistrate by a medical board, corroborated the findings of the initial post-mortem, confirming that the cause of death was compression of the neck by ligature, resulting in asphyxia. The report further stated that Abdul Rehman had used his vest band (nara) to hang himself in the bathroom. Given the deceased's young age, the counsel argued that had he been murdered, there would have been evident signs of struggle or physical violence, none of which were present on his body. Both post-mortem reports are available on record. He further asserted that the complainant had maliciously lodged a false FIR with the intent to harass and coerce the accused, who are respectable medical professionals, into providing financial compensation. He emphasized that this is a case of conflicting versions, and an individual's liberty, being a fundamental right, cannot be compromised merely on the basis of unsubstantiated allegations lacking evidentiary support. The learned trial Court, he contended, had failed to consider the absence of ocular, circumstantial, or medical evidence substantiating the alleged murder of the deceased. In conclusion, he prayed for justice. In support of his arguments he relied upon case laws reported in 2006 PCr.LJ 518 Karachi, PLD 2016 Sindh 300, 2006 MLD 663 Karachi, 1994 SCMR 122, 2002 SCMR 1076, Un-reported judgment of Hon'ble Supreme Court of Pakistan in Criminal Petition No.58-K of 2023, PLD 2020 Sindh 491, 2024 SCMR 1782 and 2018 YLR 1223 Peshawar. 4. Conversely, the learned counsel for respondent No.3 supported the impugned order, maintaining that the accused had committed the offence and subsequently fabricated a narrative of suicide to cover it up, warranting further investigation. He contended that the allegations of mala fide intent against the complainant were baseless and unsubstantiated. He questioned why the applicants had not informed the legal heirs of the deceased immediately after his demise and why the body had been hastily shifted to the hospital for post-mortem without their consent. These suspicious circumstances, he argued, implicated the accused in the offence, as an innocent person had lost his life. The learned trial Court, he submitted, had rightly accepted the report under Section 173 Cr.P.C and passed the impugned order. Learned counsel contended that the charge has been framed in the subject case by the learned trial Court. Therefore, he urged that the present Criminal Miscellaneous Application, being devoid of merit, should be dismissed. Additionally, the learned Assistant Prosecutor General (A.P.G) for the State endorsed the impugned order, adopting the arguments advanced by the learned counsel for respondent No.3. 5. I have carefully considered arguments put forward by the respective counsels of both parties and learned A.P.G. 6. Through this application, the applicant has challenged the order of the Magistrate-VI, Hyderabad dated 18.12.2024, wherein cognizance was taken under Sections 302 and 34 P.P.C. The offence under Section 302 P.P.C falls exclusively with the jurisdiction of the Court of Sessions, the matter was accordingly referred to the appropriate forum. 7. The legal principle is now firmly established that when an Investigating Officer, upon completing an inquiry, submits a positive report recommending that the accused be sent to trial, the Magistrate lacks the jurisdiction to disregard such a report by either disposing of the case or omitting a specific offence. Once the Investigating Officer, after collecting material evidence, concludes that a particular offence has been substantiated and merits judicial determination, it is not within the Magistrate's competence to set aside such findings, as doing so would require the scrutiny of witnesses. Consequently, it falls within the purview of the trial court-be it a Magistrate's or a Sessions Court-to assess the evidence during trial and determine whether a case has been established or whether sufficient material exists to justify the application of a particular statutory provision, proceeding accordingly in compliance with due process. 8. The authority of a Magistrate to diverge from the Investigating Officer's conclusions is confined solely to instances where a report seeks to dispose of the case or eliminate a specific section of the charges. In such circumstances, the Magistrate, upon examining the evidence, may independently form an opinion, diverging from that of the Investigating Officer, and take cognizance of the offence by accepting the challan or reinstating the omitted charges. The legal precedents set forth in Jalal and 2 others v. The State and another (1972 SCMR Page-516), Habib v. The State (1983 SCMR 370), Abdul Hafeez Junejo v. The State (SBLR 2010 Sindh 306), and Amanat Ali v. 1st Civil Judge and J.M Daharki and others (2015 YLR 2312) affirm that a Magistrate lacks the authority to dispose of a case that the Investigating Officer has recommended for trial following due investigation. 9. The investigation of a criminal case is an exclusive domain of the police. While judicial independence is a fundamental tenet of a democratic system, the autonomy of investigative bodies is equally crucial to the concept of rule of law. Undue interference in each other's domains undermines the doctrine of separation of powers and significantly hampers the administration of justice. This principle has been unequivocally affirmed by the Hon'ble Supreme Court in the case of Muhammad Hanif v. The State (2019 SCMR 2029). 10. During the course of arguments, it emerged that charge has been framed in the subject case by the learned Additional Sessions Judge-I, Hyderabad. Since, the charge has been framed by the learned Sessions Judge, it is only appropriate that the applicants seek redressal of their grievance from the said forum, in accordance of law. Any factual determination made by this Court at this stage may inadvertently prejudice the case of either party. 11. There is no ambiguity in the settled principle that the High Court is empowered under Section 561-A Cr.P.C to quash proceedings in appropriate circumstances. However, in the criminal jurisprudence, each case is factually distinct, and exercise of such extra ordinary jurisdiction must be approached with judicial prudence and restraint. 12. In the light of above discussion, the instant Criminal Miscellaneous Application is dismissed along with pending application[s], if any. However, the applicants are at liberty to approach the trial Court and avail any remedy permissible under the law, if, they so advised. 13. Needless to mention here that observations made hereinabove are tentative in nature and would not prejudice the case of either party at the trial. JK/S-23/Sindh Application dismissed.

Summary: (a) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----Ss. 7(4) & 9---Civil Procedure Code (V of 1908), S. 151 & O. XLI, R.33---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration, cancellation, damages and permanent injunction---Right of party---Remedy not granted by the Court---Act(s) of the Subordinate Court(s) not granting relief / right to party---Inherent/ex delicto justitiae powers of High/Appellate Court---Scope---Owner of residential property, through original papers, furnished surety in a criminal case on behalf of two accused persons pursuant to their bail order, however, later he did not receive any final outcome on his application for release of surety, i.e. return of his original property papers---Then, owner received a notice from a non-banking finance leasing company ('Leasing Company') stating that the property was mortgaged to them and they intended to auction the same---Then the owner filed a civil suit for a declaration, etc., before the High Court in its Original Civil Jurisdiction, inter alia, seeking to restraint Leasing Company from auction / sale of the property but the Single Judge returned the plaint, with an observation to approach the court of proper jurisdiction---Then the owner approached the Banking Court and filed suit seeking redressal of his grievance, however, when the matter proceeded to the final arguments the Judge-Banking Court, while holding that the Banking Court did not have jurisdiction to adjudicate the matter, returned the plaint with the direction to file the same before the (civil) court of competent jurisdiction---Owner/Appellant approached Appellate/High Court---Validity---Banking Court, undoudtdly, has authority to decide its own jurisdiction as provided in S. 7(4) of the Financial Institutions (Recovery of Finances) Ordinance, 2001 ('the Ordinance 2001') being a special law; the jurisdiction of which (Banking Court) is only invoked when there is dispute between a financial institution and a customer, as defined under the Ordinance 2001---In the present case , it is an accepted position that the appellant does not fall into either category, which forms the basis of the impugned judgment and return of the plaint---Both the Courts (Civil and Banking) , at separate times, have returned the plaint to the appellant, in essence leaving the appellant non-suited ; which is contrary to the provisions of law and natural justice, i.e. ubi jus ibiremedium, meaning where there is a right, there is a remedy---Similarly , "actus curiae neminemgravabit" means an act of court should prejudice no man, both the said principles would be called into effect to the aid of the appellant to support him in present matter---Mere technicalities cannot forgo justice, nor can technicalities be allowed to operate as tyrant masters so as to frustrate genuine claims as it remains incumbent upon a court to remedy any wrong suffered by a litigant---Additionally, the High /Appellate Court holds inherent jurisdiction and power, the Court remains duty-bound to ensure that complete justice is done and technicalities are avoided---Such power has been granted vide statute, i.e. under S. 151 as well as O. XLI, R. 33, Code of Civil Procedure, 1908---Additionally, the Appellate Court can also act ex delicto justiciae and supply for an omission in any procedure---The Appellate Court exercises powers to make such orders to cover ostensibly impossible situations for complete dispensation of justice---The appellant has been in pursuit of his property, which has eluded him for nearly 20 years, and the matter to-date remains in limbo---The Appellant is no better off today than he was 20 years ago, despite pursuing his matter before the courts of law---It would by any standard be unjust, if the appellant was not aided to conclude his claim---Thus, to serve a more reasonable and justiciable purpose, High/Appellate Court, while invoking inherent powers, transferred the suit filed by Appellant from the Banking Court to the relevant Civil Court holding pecuniary and territorial jurisdiction over the Property; the matter would commence at the stage of Final Arguments on the basis of evidence already adduced by both the parties---Appeal was disposed of accordingly. 2016 CLD 461; 2003 CLD 1026; 2003 CLD 1843; 2007 CLD 1532; 2004 CLD 689; 2023 SCMR 1451; 2024 CLD 1099; Dr. Asma Noreen Syed v. Government of the Punjab and others 2022 SCMR 1546; 2010 CLC 22; Abdul Qudoos v. Commandant Frontier Constabulary KPK, Peshawar and another 2023 SCMR 334; Messrs Grain Systems v. Agricultural Development Bank 1993 SCMR 1996; 2004 SCMR 108; 2010 CLD 981; 2009 CLD 172 and 2022 SCMR 870 ref. (b) Financial Institutions (Recovery of Finances) Ordinance (XLVI of 2001)--- ----S. 9---Constitution of Pakistan, Arts. 4, 8, 10-A, 23, 24 & 25 ---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit fora declaration, etc. cancellation, damages and permanent injunction---Right of party---Remedy not granted by the Court---Act(s) of the Subordinate Court(s) not granting relief / right to party---Fundamental rights of litigant---Scope---Owner provided his residential property ,through original papers, as a surety in a criminal case on behalf of two accused persons pursuant to their bail order , however, later he did not receive any final outcome on his application for release of surety, i.e. return of his original property papers---Then, owner received a notice from a non-banking finance leasing company ('Leasing Company') stating that the Property was mortgaged to them, and they intended to auction the same---Then the owner filed a Civil Suit for a declaration, etc. before the High Court in its Original Civil Jurisdiction, inter alia, seeking to restraint Leasing Company from auction / sale of the Property but the Single Judge returned the Plaint, with an observation to approach the court of proper jurisdiction---Then the owner approached the Banking Court and filed Suit seeking redressal of his grievance, however, when the matter proceeded to the final arguments the Judge-Banking Court ,while holding that it( Banking Court) did not have jurisdiction to adjudicate the matter , returned the Plaint with the direction to file the same before the (civil) court of competent jurisdiction---Owner/Appellant approached Appellate/High Court---Validity---It is abundantly clear that distress has been caused to the Appellant, due to the various courts below sending him from pillar to post in an attempt to safeguard his own Property---Said actions also appear violative to Appellants' rights having been guaranteed under Arts. 4, 8, 10-A, 23, 24 & 25 of the Constitution of Pakistan---Appellant has now been left in a situation whereby his Property appears to be lost in an abyss, not through any fault of his own, but due to actions of the courts below in returning his plaint---Mere technicalities cannot forgo justice, nor can technicalities be allowed to operate as tyrant masters so as to frustrate genuine claims---Thus, to serve a more reasonable and justiciable purpose High/Appellate Court, while invoking inherent powers, the Suit filed by Appellant from the Banking Court to the relevant Civil Court holding pecuniary and territorial jurisdiction over the Property; the matter would commence at the stage of Final Arguments on the basis of evidence already adduced by both the parties---Appeal was disposed of accordingly. 2010 CLC 22 ref. Abdul Shakoor and Fahad Ali for Appellant. Nemo. for Respondents. Date of hearing: 11th February, 2025.