Quashing of FIR, mainly on ground that no offence was made out of allegations recorded in FIR

 PLJ 2023 SC 247

[Appellate Jurisdiction]

Present: Syed Mansoor Ali Shah and Mrs. Ayesha A. Malik, JJ.

FIA through Director General, FIA and others--Petitioners

versus

Syed HAMID ALI SHAH and others--Respondents

C.P. 1257 of 2020, decided on 6.2.2023.

(Against the judgment of the Islamabad High Court, dated 04.02.2020, passed in W.P. No. 2367/2018)

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Pakistan Penal Code, (XLV of 1860), Ss. 409/109--Prevention of Corruption Act, (II of 1947), S. 5(2)--Illegal upgradations--Quashing of FIR--The High Court while accepting Writ Petition of respondents, as well as a writ petition and two criminal miscellaneous applications of other accused persons, has quashed FIR--The “FIA” conducted an inquiry and found that prima facie a case of abuse of authority was made out against officers who processed and approved those illegal upgradations--Quashing of FIR, mainly on ground that no offence was made out of allegations recorded in FIR--The High Court agreed with ground pleaded, accepted Writ petitions and quashed FIR--The High Court has observed in impugned judgment that matter in issue, which relates to violation of terms and conditions of service of CDA employees, does not constitute offence of criminal misconduct punishable under Section 5(2) of PCA--The High Court has quashed FIR, by holding that FIA authorities have failed to legally justify their actions of initiating inquiry and registration of FIR--The High Courts can declare such acts of police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision, such as quashing FIR and investigation proceeding--The powers of public servants are like a trust conferred upon them and they should exercise them fairly, honestly and in good faith as a trustee; but entrustment of power to upgrade his subordinate officials is not equivalent to entrustment of property as mentioned in Section 405 PPC and its misuse, or use in violation of relevant rules and regulations, does not constitute cognizable offences punishable under Section 409 PPC and Section 5(2) PCA--The misuse of such a power may constitute misconduct under service laws, but does not attract criminal misconduct punishable under criminal laws--The acts of FIA officers in registering FIR and carrying out investigation in present case are certainly without lawful authority--These petitions being meritless and against law settled by this Court have unduly wasted time of Court depriving it from attending to more lawful and genuine claims pending before it--Such vexatious and frivolous litigation must be dealt with firmly and strongly discouraged. We, therefore, dismiss present petition and decline leave to appeal, with costs. [Pp. 250, 251, 252 & 254] A, B, F, G, I, N, O, P, Q

PLD 1966 SC 650 ref.

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Quashing of FIR, mainly on ground that no offence was made out of allegations recorded in FIR.  [P. 250] C

Criminal Procedure Code, 1898 (V of 1898)--

----S. 561-A--Quash a judicial proceeding--A High Court, can quash a judicial proceeding pending before any subordinate Court under Section 561-A Cr.P.C., if it finds it necessary to make such order to prevent abuse of process of that Court or otherwise to secure ends of justice.                    [P. 251] D

PLD 1971 SC 677 (5-MB); 2011 SCMR 1813 ref.

Constitution of Pakistan, 1973--

----Art. 199--Constitutional jurisdiction--judicial review--Constitutional jurisdiction of high Court under article 199 of constitution, 1973 for judicial review of said acts of police officers. [P. 251] E

PLD 2018 SC 40 ref.

Constitution of Pakistan, 1973--

----Art. 199(1)(a)(ii)--Constitutional powers of High Courts--Article 199(1)(a)(ii) of Constitution empowers High Courts to judicially review acts done or proceedings taken by persons performing functions in connection with affairs of Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect--The registration of an FIR and doing of an investigation are acts of officers of police department (a provincial law enforcement agency) who perform functions in connection with affairs of a Province and are thus amenable to jurisdiction of High Courts under Article 199(1)(a)(ii) of Constitution.                                                                    [P. 252] H

Federal Investigation Agency Act, 1974 (VIII of 1974)--

----Ss. 3, 5--The FIA has been established by Federal Government under Section 3 of Federal Investigation Agency Act, 1974 (“FIA ACT”), for inquiry into, and investigation of offences specified in Schedule to said Act, including an attempt or conspiracy to commit, and abetment of, any such--Under Section 5 of FIA Act, officer of FIA have such powers, including powers relating to search, arrest of persons and seizure of property.       [P. 252] J

Criminal Procedure Code, 1898 (V of 1898)--

----S. 154--Under Section 154 of Cr.P.C., a first information report (FIR) can be registered only with regard to commission of cognizable offence.                                                        [P. 253] K

Criminal Procedure Code, 1898 (V of 1898)--

----S. 156--Investigation--An investigation can be made by a police officer, without order of a Magistrate, under Section 156 of Cr.P.C only in respect of a cognizable offence.         [P. 253] L

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 154 & 156--FIR & Investigation--It is contents of FIR which are to be seen to ascertain whether a cognizable offence is made out of allegations contained therein and mere mentioning of a particular section of PPC or any other offence under law in FIR is not determinative in this regard.      [P. 253] M

PLD 2007 SC 48 ref.

Malik Javed Iqbal Wains, Addl. AGP and Ch. Akhtar Ali, AOR for Petitioners.

Syed Naeem Bokhari, ASC for Respondents.

Date of hearing: 6.2.2023.

Order

Syed Mansoor Ali Shah, J.--The petitioners seek leave to appeal against a judgment of the Islamabad High Court, dated 04.02.2020 (“impugned judgment”), whereby the High Court while accepting the writ petition of the respondents, as well as a writ petition and two criminal miscellaneous applications of other accused persons, has quashed FIR No. 05/2018 registered against them at Police Station FIA, Islamabad, for offences punishable under Sections 409/109 of the Pakistan Penal Code 1860 (“PPC”) and Section 5(2) of the Prevention of Corruption Act 1947 (“PCA”).

2. Briefly, the facts of the case are that on a news item published in a daily newspaper, reporting that a number of employees of the various directorates of the Capital Development Authority (“CDA”) had been illegally upgraded in violation of the relevant rules and regulations during the years 2007 to 2013, the Federal Investigation Agency (“FIA”) conducted an inquiry and found that prima facie a case of abuse of authority was made out against the officers who processed and approved those illegal upgradations as well as against the beneficiary officials of the CDA (including the respondents). With this finding, the FIA registered the above-mentioned FIR and initiated the formal investigation, which may have included the arrest and detention of the accused persons. The respondents and some other persons nominated as accused in the FIR as well as in the investigation proceeding, filed two writ petitions under Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 (“Constitution”) and two criminal miscellaneous applications under Section 561-A of the Code of Criminal Procedure 1898 (“Cr.P.C.”) for quashing of the FIR, mainly on the ground that no offence was made out of the allegations recorded in the FIR. The High Court agreed with the ground pleaded, accepted the writ petitions and miscellaneous applications, and quashed the FIR vide the impugned judgment. Hence, the petitioners have filed the present petition for leave to appeal.

3. We have heard the learned counsel for the parties, read the cases cited by them and examined the record of the case.

4. First of all, we want to make it clear that a High Court has no power under Section 561-A Cr.P.C. to quash an FIR or an investigation proceeding; therefore, the criminal miscellaneous applications filed under Section 561-A, Cr.P.C. by some of the accused persons in the High Court for quashing the FIR and investigation proceeding in the present case were not maintainable. This is because jurisdiction of a High Court to make an appropriate order under Section 561-A Cr.P.C. necessary to secure the ends of justice, can only be exercised with regard to the judicial or Court proceedings and not relating to proceedings of any other authority or department, such as FIR registration or investigation proceedings of the police department. This has been authoritatively held by a five-member bench of this Court in Shahnaz Begum.[1] A High Court, therefore, can quash a judicial proceeding pending before any subordinate Court under Section 561-A Cr.P.C., if it finds it necessary to make such order to prevent the abuse of the process of that Court or otherwise to secure the ends of justice; however, it should not ordinarily exercise its power under Section 561-A Cr.P.C. to make such order unless the accused person has first availed his remedy before the trial Court under Section 249-A or 265-K, Cr.P.C.[2] Where before the submission of the police report under Section 173 Cr.P.C. to the Court concerned, the accused person thinks that the FIR has been registered, and the investigation is being conducted, without lawful authority, he may have recourse to the constitutional jurisdiction of the High Court under Article199 of the Constitution for judicial review of the said acts of the police officers.[3]

5. In the present case, as the High Court was competent to judicially review the acts of registering the FIR and conducting the investigation by the officers of the FIA in the exercise of its constitutional jurisdiction under Article 199 of the Constitution, therefore, the acceptance of the criminal miscellaneous applications filed by some of the accused persons under Section 561-A Cr.P.C. and the reference to Section 561-A Cr.P.C. while quashing the FIR have no material bearing on the jurisdiction of the High Court while passing the impugned judgment. Even otherwise, if the reasons stated for passing the impugned judgment fall within the scope of the jurisdiction of the High Court under Article 199 of the Constitution, the reference to a wrong or inapplicable provision of law will not by itself have any fatal consequence.[4] The High Court has observed in the impugned judgment that the matter in issue, which relates to the violation of the terms and conditions of service of the CDA employees, does not constitute the offence of criminal misconduct punishable under Section 5(2) of the PCA nor are the ingredients of the offence of criminal breach of trust under Section 409 PPC made out. The High Court has also specifically quoted the statement made before it by the Addl. Director, FIA that “FIA has concluded investigation and no element of bribery has been found in the entire inquiry against any official of CDA”. With the said observations, the High Court has quashed the FIR, by holding that FIA authorities have failed to legally justify their actions of initiating the inquiry and registration of the FIR. These reasons squarely fall within the scope of the provisions of Article 199(1)(a)(ii) of the Constitution.

6. Article 199(1)(a)(ii) of the Constitution empowers the High Courts to judicially review the acts done or proceedings taken by the persons performing functions in connection with the affairs of the Federation, a Province or a local authority and if find such acts or proceedings to have been done or taken without lawful authority, to declare them to be so and of no legal effect. The registration of an FIR and the doing of an investigation are the acts of officers of the police department (a provincial law enforcement agency) who perform functions in connection with the affairs of a Province and are thus amenable to the jurisdiction of the High Courts under Article 199(1)(a)(ii) of the Constitution. The High Courts can declare such acts of the police officers, to have been made without lawful authority and of no legal effect if they are found to be so and can also make any appropriate incidental or consequential order to effectuate its decision,[5] such as quashing the FIR and investigation proceeding. The acts of registering the FIR and conducting investigation by the officers of the FIA, in the present case, are also subject to said jurisdiction of the High Court, as they have been done by the officers performing functions in connection with the affairs of the Federation.

7. The FIA has been established by the Federal Government under Section 3 of the Federal Investigation Agency Act 1974 (“FIA Act”), for inquiry into, and investigation of the offences specified in the Schedule to the said Act, including an attempt or conspiracy to commit, and abetment of, any such offence. Under Section 5 of the FIA Act, the officers of the FIA have such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of a Provincial Police have in relation to the investigation of offences under the Cr.P.C., and its officer not below the rank of a Sub-Inspector may, for the purposes of any inquiry or investigation under this Act, exercise any of the powers of an officer-in-charge of a Police Station under the Cr.P.C. That being so, one has to look at the provisions of Sections 154 and 156 of the Cr.P.C., which relate to the registration of FIRs and conducting the investigations, for the purpose of examining whether the acts of registering the FIR and doing the Investigation by the FIA officers in the present case were with or without lawful authority.

8. Under Section 154 of the Cr.P.C., a first information report (FIR) can be registered only with regard to the commission of a cognizable offence. Similarly, an investigation can be made by a police officer, without the order of a Magistrate, under Section 156 of the Cr.P.C. only in respect of a cognizable offence. Needless to say that it is the contents of an FIR which are to be seen to ascertain whether a cognizable offence is made out of the allegations contained therein, and mere mentioning of a particular Section of the PPC or any other offence under the law in the FIR is not determinative in this regard.[6] However, the falsity or truthfulness of those allegations is not under examination for the purpose of determining the legal authority of the police officer to register the FIR. The precise question is: whether the allegations as contained in the FIR make out the commission of a cognizable offence; if so, what is that?

9. When asked how the accused officers who processed and approved the alleged illegal upgradations have committed the cognizable offences of criminal breach of trust and criminal misconduct punishable under Section 409 PPC and Section 5(2) PCA and how the officials who were granted the illegal upgradations are the abettors in the commission of those offences and are thus liable for the offence of abetment punishable under Section 109 PPC, we got no plausible reply. The allegations as contained in the FIR do not involve the very essential ingredients of the offence of criminal breach of trust as defined in Section 405 PPC, (i) the entrustment of, or dominion over, any property, and (ii) the dishonest misappropriation or conversion to his own use of that property, or the dishonest use or disposal of that property in violation of any direction of law or of any legal contract. Therefore, the cognizable offence of criminal breach of trust by a public servant punishable under Section 409 PPC mentioned in the FIR is not made out. Similar is the case with the cognizable offence punishable under Section 5(2) PCA mentioned in the FIR, which is also not made out of the allegations as contained in the FIR. The argument of the learned counsel for the petitioner is totally misconceived, that the authority conferred upon the accused officers, who granted the illegal upgradations, was a trust and by misusing that authority, they have committed the offence of criminal breach of trust punishable under Section 409 PPC and the offence of criminal misconduct punishable under Section 5(2) PCA. No doubt, the powers of the public servants are like a trust conferred upon them and they should exercise them fairly, honestly and in good faith as a trustee;
but the entrustment of the power to upgrade his subordinate officials is not equivalent to the entrustment of property as mentioned in Section 405 PPC and its misuse, or use in violation of the relevant rules and regulations, does not constitute the cognizable offences punishable under Section 409 PPC and Section 5(2) PCA. The misuse of such a power may constitute misconduct under the service laws, but does not attract criminal misconduct punishable under the criminal laws.

10. In view of the above legal position, the acts of the FIA officers in registering the FIR and carrying out investigation in the present case are certainly without lawful authority. We thus find no legal flaw in the impugned judgment. The present petition is not only meritless but also vexatious, as it amounts to continuation of harassment caused to the respondents by initiating the criminal proceeding against them in relation to their service matter, without any lawful authority. Additionally, these petitions being meritless and against the law settled by this Court have unduly wasted the time of the Court depriving it from attending to more lawful and genuine claims pending before it. Such frivolous litigation clogs the pipelines of justice causing delay in dispensation of justice, thereby impairing the right to expeditious justice of a genuine litigant. Such vexatious and frivolous petitions add to the pendency of cases which over-burdens the Court dockets and slows down the engine of justice. Such vexatious and frivolous litigation must be dealt with firmly and strongly discouraged.[7] We, therefore, dismiss the present petition and decline the leave to appeal, with costs of Rs. 100,000/-under Order 28 Rule 3 of the Supreme Court Rules, 1980. The costs shall be deposited by petitioner No. 2, Inspector Irfan Azim Burki, In-charge FIA, Corporate Crime Circle, Islamabad, who registered the FIR and was making the investigation against the respondents, from his own pocket, with the Registrar of this Court within 30 days from today, and after the deposit, they shall be paid to the respondents. A compliance report, in this regard, shall be placed on the record of the case. In case of non-compliance, the matter shall be put up before the Court for appropriate orders.

(K.Q.B.)          Petition dismissed

---

[1].       Shahnaz Begum v. High Court of Sindh and Baluchistan PLD 1971 SC 677 (5-MB).

[2].       Sher Afgan v. Ali Habib 2011 SCMR 1813.

[3].       See Shahnaz Begum case (supra).

[4].       Olas Khan v. NAB PLD 2018 SC 40.

[5].       R. SIM & Co v. District Magistrate PLD 1966 SC 650 (5-MB).

[6].       State v. Sultan Ahmed PLD 2007 SC 48.

[7].       See Naveed-ul-Islam v. District Judge 2023 SCP 32 (Citation on the official website of this Court) on the objectives of imposition of costs.

FIR lodged after 25 years of Transaction

 PLJ 2024 Cr.C. 618

[Islamabad High Court]

Present: Arbab Muhammad Tahir, J.

Ms. GHAZALA ALI--Appellant

versus

SIKANDAR RAMZAN Chaudhry and another--Respondents

Crl. A. No. 172 of 2021, decided on 5.12.2023.

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 249-A & 417(2A)--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468 & 471--Acquittal from charge--Registration of FIR--Transfer of house--Family settlement agreement--Settlement agreement was not cancelled--FIR was lodged after twenty years of transaction--Report of handwriting expert--Allegation of forgery--Non-implication of respondent--Estate of deceased was settled through an agreement--The appellant and her brother were also signatories of agreement--The said agreement, as per documents, still holds field and was not yet been cancelled by Court of competent jurisdiction despite questioned by appellant and her brother--Subject FIR was got registered by appellant in year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of first agreement wherein she had also been a signatory, challenged same subsequently after twenty years of alleged transaction--Before registration of instant FIR, appellant had already filed suit for cancellation of agreement with a delay of more than twenty years--The report reveals that signatures of late Ch. Ramzan Ali were similar in characteristics with his routine signatures--Report, authenticated and verified by Deputy Director and Director Technical Wing FIA, negated allegation of forgery, as alleged by appellant in her FIR-- Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict respondents for offence alleged, comprised of documents mentioned in recovery memo.--Neither CDA nor Investigation Agency alleged any forgery in preparation of said documents--Entire prosecution evidence did not implicate respondents for commission of alleged fraud and forgery--Appeal dismissed.

                                                      [Pp. 621, 624 & 625] A, B, C, D & E

PLD 2007 SC 386 & 2022 CLC 1064 ref.

Raja Iftikhar Ahmad, Advocate for Appellant.

Mr. Mudassar Hussain Malik, Advocate for Respondents.

Mr. Hazrat Younas for State.

Date of hearing: 8.11.2023.

Judgment

Through the listed criminal appeal in terms of Section 417 (2A) Cr.P.C., “appellant” namely Ms. Ghazala Ali (complainant) impugns order dated 12.10.2021, passed by learned Judicial Magistrate Section-30, Islamabad-West whereby respondents 1&2 namely Sikandar Ramzan Ch. and Ms. Samina Babar Ramzan (‘respondents’) were acquitted in terms of Section 249-A Cr. P.C in case FIR No. 228, dated 25.05.2018, under Sections 420, 468 & 471 PPC, Police Station Aabpara, Islamabad.

2. Precisely, subject FIR stood registered on the complaint of appellant Ms. Ghazala Ali wherein it was alleged that she is daughter of Ch. Ramzan Ali, who was owner of House No. 41, Street No. 12, Sector F-6/3 Islamabad (‘subject house’); that her father died in the year 1990; that her two brothers namely Sikander Ramzan Ch. (Respondent No. 1) and Babar Ramzan Ch. (late), by producing fake person in CDA and putting fake signatures of her father got transferred subject house in their name; that at the relevant time, other brother and sisters had been abroad, therefore, remained unaware regarding said forged transaction; that their father Ch. Ramzan Ali died on 30.10.1990 while the subject house stood transferred in the name of two brothers on 23.11.1991; that her brother Babar Ramzan Ch. died in the year 1992 and at that time their mother Ms. Anwar Sultana was alive and entitled to 1/6th share in subject house; that her mother Ms. Anwar Sultana died in the year 1997; that after the death of her mother, her legal heirs including appellant and brother Tariq Ramzan Ch. were entitled to their due share in the subject house; that in the year 2005 respondents Sikandar Ramzan. and Ms. Samina Babar Ramzan prepared forged succession certificate and fraudulently got transferred the subject house in their names and in the names of their children, thus deprived the appellant and other legal heirs of their legal share in subject house by employing fraud and forgery.

3. After due investigation, report in terms of Section 173 Cr.P.C was submitted before the Court of competent jurisdiction for trial. The said report primarily based upon documentary evidence including the application and transfer forms collected from CDA containing signatures of late Ch. Ramzan Ali and Opinion of Handwriting Expert wherein on examination, questioned signatures of the late found not similar with that of his routine signatures. Subsequently, on an application by Respondent No. 1 regarding tendering of Opinion with fake signatures of the Examiner, supplementary report under Section 173, Cr.P.C. was submitted before the Court with Opinion of Handwriting Expert of even date i.e. 19.04.2019 wherein, the signatures of the late on questioned documents and routine signatures were found similar in nature. At the trial, respondents were charge-sheeted on 31.07.2019 where after they filed an application under Section 249-A, Cr.P.C. The learned Trial Court after hearing the parties, accepted the application vide order dated 12.10.2021, being impugned through the listed appeal.

4. Learned counsel for the parties addressed lengthy arguments by referring previous litigation, both civil and criminal, launched by the appellant and one of her brother Tariq Ramzan Ch. against respondents and others. Both the sides documented the appeal to highlight their respective contentions. Respondents through separate civil misc. placed on record copies of FIRs, orders passed thereupon and copies of civil litigation and orders thereupon besides an agreement-family settlement dated 17.01.1998.

5. The circumference of the submissions advanced by learned counsel for the appellant had been to the effect that respondents by playing fraud and forgery, deprived the appellant and other legal heirs of their share in the subject house; that forgery and fraud is substantiated by the Opinion of Handwriting Expert and that in order to perpetuate illegal act just to grab the property by depriving other legal heirs, respondents subsequently got prepared succession certificate by deliberately concealing all legal heirs and then fraudulently got transferred the subject house in their names and in the names of their children. Learned counsel in support of his submissions referred various documents, tendered before the CDA for the purpose of transfer of allotment of subject house by the respondents. According to learned counsel, the subject transfer of allotment in the name of respondents, on the face of it, is bogus as it was made after the death of Ch. Ramzan Ali, who died on 30.10.1990 while alleged transfer of allotment in the name of respondents was made much later on 23.11.1991, therefore, under the circumstances, proper course for the Trial Court was to record evidence and then decide the case on merits instead to knockout the appellant without affording her due opportunity to produce evidence, thus impugned order being against the spirit of natural justice, contrary to incriminating material made basis to indict the respondents for the alleged offence and offensive to right of fair trial envisaged in Article 10-A of the Constitution is liable to be set aside.

6. On the other hand, learned counsel for respondents vehemently repelled the submissions advanced by learned counsel for the appellant by contending that respondents had been/are facing dense litigation, both civil and criminal, initiated by the appellant and the other brother Tariq Ramzan Ch. while none of the other two sisters came forward to support the appellant; that the matter inter se the parties had already been settled regarding estate of their predecessor through family settlement in the year 1998 where after, appellant and her brother Tariq Ramzan Ch. launched criminal and civil actions, one after the other out of personal grudge and vendetta against widow of their late brother and the other brother with whom they had already settled the family issue; that in an identical case lodged by Tariq Ramzan Ch, respondents were acquitted in terms of Section 249-A, Cr.P.C. and appeal against the said order was also dismissed by this Court with costs, therefore, instant appeal being frivolous, vexatious and offshoot of malicious prosecution launched by appellant, deserves the same treatment.

7. Heard the learned counsel for the parties and consulted the documents made available on file with their able assistance.

8. The parties-to-lis hail from common pedigree. The subject house was owned by Ch. Ramzan Ali (predecessor in interest of the parties) who died on 30.10.1990. the appellant and respondents are closely related with each other. The appellant and Respondent No. 1 Sikander Ramzan Chaudhry are real brother and sister while Respondent No. 2 Ms. Samina Babar Ramzan Ch. is widow of Babar Ramzan Chaudhry, late brother of appellant and sister-in-law (bhabi) of appellant. Late Ch. Ramzan Ali (died in 1990) was survived by Ms. Anwar Sultana (died in 1997) widow, three sons Tariq Ramzan Ch., Sikander Ramzan Ch. (Respondent No. 1), Babar Ramzan Ch. (died in 1992) and three daughters Bushra Bibi, Zahida Parveen and Ms. Ghazala Ali (appellant).

9. As per the documents made available on file, before the rift cropped up between the parties, dispute with regard to estate of the deceased was settled through an agreement dated 17.01.1998. The appellant and her brother Tariq Ramzan Ch. were also signatories of the said agreement. The said agreement, as per documents, still holds the field and has not yet been cancelled/revoked by the Court of competent jurisdiction despite questioned by the appellant and her brother Tariq Ramzan Ch through a civil suit.

10. Record further reveals that appellant and her brother Tariq Ramzan Ch commenced the litigation, both civil and criminal, against respondents and others in the year 2018, then in 2019 and 2020 as well.

The first action was initiated on 09.01.2018 by appellant and her brother Tariq Ramzan Ch by filing suit against respondents and others seeking decree for declaration, partition, cancellation of agreement dated 17.01.1998, permanent and mandatory injunction.

After about five months of filing of said suit on 25.05.2018 appellant got registered FIR, subject matter of instant appeal wherein respondents were acquitted vide impugned order.

Thereafter, on 11.12.2018, Tariq Ramzan Chaudhry got registered FIR No. 432, under Section 420 PPC, at same Police Station i.e. Aabpara Islamabad, regarding preparation of forged agreement dated 13.02.2007 (after more than ten years of said agreement) against respondents. In the said case, respondents were acquitted in terms of Section 249-A Cr.P.C by learned Judicial Magistrate Section-30 Islamabad-West vide Judgment dated 12.10.2021. Tariq Ramzan Chaudhry assailed the said order before this Court through Crl. Appeal No. 199 of 2021 which was dismissed with costs of Rs. 200,000/-. Paragraph 7, 8 and 9 being significant are reproduced:

          “07. Father of the appellant namely Ch. Ramzan Ali, got transferred House No. 41, Street No. 12, Sector F-6/3, Islamabad in the names of his sons Sikandar Ramzan and Babar Ramzan on 11.08.1990, in his life time, by adopting legal procedure in the office of Capital Development Authority, Islamabad.

          08. The deceased father affixed his signatures and thumb impression himself on the transfer application form, consequently transfer letter was issued by the office of C.D.A on 23.11.1991, after the death of Ch. Ramzan Ali but all the legal and codal formalities of transfer of the property were completed on 11.08.1990, during life time of Ch. Ramzan Ali.

          09. When confronted, learned counsel for the appellant has admitted that there is no expert report that the thumb impressions and the signatures of deceased father are fake or forged.” {Emphasis added}

On 20.02.2019, Tariq Ramzan Chaudhry again got registered another FIR Bearing No. 131, under Section 420, 468, 471 PPC, this time at Police Station Civil Lines Rawalpindi, against the respondents on the same allegation of preparing forged agreement dated 13.02.2007. It this juncture, it is necessary to mention that as per stance of respondents said agreement had been made pursuant to original agreement/ settlement of 1998 in order to protect rights of legal heirs.

On 09.05.2019 Tariq Ramzann Chaudhry filed an application against his sister-in-law/Respondent No. 2 Ms. Samina Babar Ramzan for cancellation of guardianship certificate dated 25.07.1995 but the same was dismissed by learned Guardian Judge vide order dated 02.12.2021.

On 11.09.2019 Tariq Ramzan Chaudhry fled suit for declaration, possession, mesne profits and permanent injunction against respondents and others.

On 23.12.2019, one Tariq Masood, employee of Hammad son of Tariq Ramzan Chaudhry got registered FIR No. 435, under Sections 324, 34 and 109 PPC, at Police Station Shalimar Islamabad against respondents and others wherein the latter were acquitted in terms of Section 249-A Cr.P.C by the learned Judicial Magistrate Section 30 Islamabad-West vide order dated 02.11.2021.

On 01.05.2020, Tariq Ramzanan Chaudhry got registered FIR No. 122, under Section 420, 468, 471, 201, 498-A and 466 PC, at Police Station Shahzad Town Islamabad, on the allegation of fraudulent transfer of property of her in laws by excluding other legal heirs wherein Respondent No. 2 Samina Babar Ramzan was allowed pre-arrest bail by learned ASJ-II Islamabad East vide order dated 30.07.2021.

11. Perusal of documents regarding above litigation, launched by appellant and her brother Tariq Ramzan Chaudhry reveals that respondents were subjected to face criminal and civil litigation primarily on the same subject matter. Besides present FIR, four FIRs were got registered against them besides two civil suits, filed by appellant and her brother Tariq Ramzan Chaudhry against respondents and an application for cancellation of guardianship certificate which was dismissed. It appears that the appellant and her brother Tariq Ramzan Chaudhry had been/are keeping the respondents on their target. The above mentioned proceedings though no directly related to subject FIR yet their relevance and significance cannot be ignored, primarily for the reason of having one and the same original cause of action, made basis by appellant and her brother Tariq Ramzan Ch. to launch proceedings against respondents and the aspect that same do form part of judicial record, having direct nexus with the subject matter of instant appeal. Under the principle, documents that retain such like qualifications can be made basis to take judicial notice of the same. Ordinarily, documents are produced through a witness who testifies on oath and who may be cross-examined by the other side. However, there are exceptions with regard to facts which need not be proved; these are those which the Court can take judicial notice of under Article 111 of the Qanun-e-Shahdat Order, 1984 and are mentioned in Article 112, and facts which are admitted (Article 113, Qanun-e-Shahdat Order, 1984), pertaining to part of judicial record, having direct nexus with subject matter of instant appeal. Reliance is placed upon recent pronouncement of the Supreme Court of Pakistan in the case of Manzoor Hussain (deceased) through LRs v. Misri Khan (CA No. 1698 of 2014).

12. Adverting to the merits of the case, it is noticed that the alleged transaction of transfer of allotment in the name of two brothers i.e. Respondent No. 1 Sikandar Ramzan Chaudhry and Babar Ramzan Chaudhry (late), husband of Respondent No. 2 was made in the year 1991 while subject FIR was got registered by the appellant in the year 2018 i.e. after twenty-seven years of alleged transaction and after about twenty years of the first agreement wherein she had also been a signatory, challenged the same subsequently after twenty years of alleged transaction. Before the registration of instant FIR, the appellant had already filed suit on 09.01.2018 for cancellation of agreement dated 17.01.1998 with a delay of more than twenty years.

13. As there were two reports of Handwriting Expert of even date, filed before the Trial Court along with reports under Section 173 Cr.P.C, one allegedly contained fake signatures of the Official concerned while the other, filed with supplementary report under Section 173 Cr.P.C, testified as genuine. In order to verify the veracity of the report, on the direction of this Court, FIA filed comprehensive report on 24.10.2022 highlighting the procedure and SOPs, being followed for examination of questioned documents. As per said report, made part of file, after careful examination and adopting due process, report was prepared by the concerned official, then examined and approved by Deputy Director Technical and thereafter Director Technical Wing FIA. The report dated 19.04.2019 reveals that signatures of late Ch. Ramzan Ali are similar in characteristics with his routine signatures. Thus, report, authenticated and verified by the Deputy Director and Director Technical Wing FIA, negates allegation of forgery, as alleged by the appellant in her FIR and pressed to seek full-length inquiry on the basis of reports containing fake signatures of the official concerned, which of course, deserves stern departmental action against the delinquent/s, after tracing them out by the FIA and the police as well.

14. Apart from fake Handwriting Expert Report, rest of incriminating material made basis to indict the respondents for the offence alleged, comprised of documents mentioned in the recovery memo. The same are allotment letter in the name of original owner pertaining to the year 1964, application form for transfer of allotment, requisition of transfer application, document containing signatures of late-predecessor in interest of the parties, transfer letter, application for transfer of share, letter of transfer of allotment in the name of Respondent No. 2, letter of division of subject house and photo copies of CNICs. None of these documents even remotely suggest that any fraud, as alleged, had been played by the respondents. It was also for the reason that neither the CDA nor the Investigation Agency alleged any forgery in preparation of said documents. Therefore, entire prosecution evidence did not implicate the respondents for commission of alleged fraud and forgery.

15. It is well settled that in terms of Section 249-A Cr.P.C, the Magistrate may acquit an accused at any stage of the case if, after hearing the prosecutors and the accused and for reasons to be recorded, he considers that the charge is groundless or there is no probability of the accused being convicted of any offence. The prerequisites for invoking the power in terms of Section 249 Cr.P.C are to the effect that before passing the order, Magistrate should hear the parties and consult the incriminating material and draw opinion regarding acquittal on the basis of said incriminating material only in case when the charge appears to be groundless or there is no probability of the accused being convicted of any offence. In the present case, as discussed above, charge against respondents, on examination of incriminating material, appears to be groundless and there was no probability of the respondents being convicted of any offence, in case prosecution was allowed to lead entire prosecution evidence.

16. To sum up, on careful examination of incriminating material, made basis to indict the respondents coupled with the fact of launching dense litigation, both civil and criminal highlighted above, by the appellant and her brother Tariq Ramzan Ch., whose identical appeal was earlier dismissed by this Court with costs, it can safely be held that charge against the respondents was groundless and there was no remote probability of their conviction in case the prosecution was allowed to produce entire evidence.

17. It is significant to note that instant case appears to be a classic example of frivolous litigation. It appears that there was blatant abuse of process of law to settle personal vendetta instead to agitate genuine grievance despite the fact that parties are closely related to each other. Such frivolous, vexatious and speculative litigation unduly burdens the Courts giving artificial rise to pendency of cases which in turn clogs the justice system and delays the resolution of genuine disputes. Such type of litigation is required to be rooted out of the system and one of the ways to curb such practice of instituting frivolous and vexatious cases is by imposing of costs. The specter of being made liable to pay actual costs should be such as to make every litigant think twice before putting forth a vexatious claim or defence before the Court. These costs in an appropriate case can be over and above the nominal costs which include costs of the time spent by the successful party, the transportation and lodging, if any, or any other incidental cost, besides the amount of the process fee and lawyer’s fee paid in relation to the litigation. The imposition of costs in frivolous and vexatious cases meets the requirement of fair trial under Article 10A of the Constitution, as it not only discourages frivolous claims or defences brought to the Court but also absence of such cases allows more Court time for the adjudication of genuine claims. The imposition of costs lay foundation for expeditious justice and promotes a smart legal system that enhances access to justice by entertaining genuine claims. The purpose of awarding costs at one level is to compensate the successful party for the expenses incurred to which he has been subjected and at another level to be an effective tool to purge the legal system of frivolous, vexatious and speculative claims and defences. The imposition of costs encourages alternative dispute resolution; settlements between the parties; and reduces unnecessary burden of the Courts, so that they can attend to genuine claims. The costs are a weapon of offence for the plaintiff with a just claim to present and a shield to the defendant who has been unfairly brought into Court. Reliance is placed upon Qazi Naveed ul Islam v. District Judge, Gujrat etc. (CP 3127 of 2020), Province of Balochistan v. Murree Brewery Company (PLD 2007 SC 386 (5-MB), Vinod Seth v. Devinder Bajaj (2010) 8 SCC) and Edwin Coe LLP v. Naseem Ahmad Sarfraz Khan (2022 CLC 1064-Islamabad).

18. In view of above, impugned order, being in accordance with law and facts of the case, does not call for any interference. Consequently, by following the course adopted by learned co-equal Bench while dismissing Crl. Appeal No. 199 of 2021, titled “Tariq Ramzan Chaudhry v. Sikander Ramzan etc.” instant appeal is dismissed with costs of Rs. 200,000/-which the appellant shall pay to respondents within a period of two months from the date of this judgment. In case of non-payment of costs by the appellant within the prescribed time, same shall be recovered from her as money decree with 10% monthly increase, and the costs of the execution proceedings shall also be recovered in addition thereto. Office is directed to transmit copy of this judgment to IG, ICT and DG FIA to hold in-depth inquiry and proceed against the delinquent(s) in accordance with law in terms of Paragraph 12 above.

(Y.A.)  Appeal dismissed

Withholding of Evidence in a case of Illegal Dispossession Act 2005

 PLJ 2020 Lahore (Note) 91

[Rawalpindi Bench, Rawalpindi]

Present: Raja Shahid Mehmood Abbasi, J.

ARSALAN etc.--Petitioners

versus

ADDITIONAL SESSIONS JUDGE etc.--Respondents

W.P. No. 1311 of 2016, decided on 9.3.2017.

Constitution of Pakistan, 1973--

----Art. 199--Illegal Dispossession Act, (XI of 2005), S. 3--Constitutional petition--Non-production of rent deed--Agreement to sell--Non-producing of material witness--Withholding of evidence--Pendency of civil litigation contradictory evidence--Misreading of evidence--Benefit of doubt--Acquittal of--Challenge to--Admittedly complainant Mst. Zafri Bibi (PW.1) and Murad Khan (PW.2) are not eyewitnesses of occurrence as complainant was resident of Hazro and not Attock and complainant was informed regarding occurrence by one Allah Daad but surprisingly said most natural witness of occurrence, was not produced by complainant in evidence for reason best know to complainant--It is settled by now that prosecution cannot withheld evidence of any material witness and if any party withholds best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it--Complainant is maternal grandmother of accused/petitioners but said fact has been suppressed by complainant while filing private complainant--Said fact creates doubt about prosecution story--It is also a circumstance that civil litigation is also pending adjudication between parties--Cccused petitioners in their statements u/S. 342, Cr.P.C. also stated about fact of purchase of disputed house from their maternal grandfather Hukim Din--Trial Court has not appreciated evidence produced by prosecution in its true perspective--After considering all pros and cons of case, I have come to an irresistible conclusion that prosecution has failed to prove its case against appellant beyond any shadow of reasonable doubt--Prosecution has relied upon discrepant, contradictory and flimsy evidence which is also full of dishonest improvements while implicating accused and carving story of their own choice based on their whims--Trial Court has misread evidence on record in violation of dictum laid by Superior Courts in various pronouncement, therefore, conviction of petitioners is not sustainable in eyes of law--There is no cavil to proposition that if there is a single circumstance which creates reasonable and cogent doubt regarding prosecution case, same is sufficient to extend benefit to accused, whereas, instant case is replete with circumstances which have rendered serious doubts about prosecution story--Prosecution was duty bound to produce trust worthy sure footed and confidence inspiring evidence to prove charges against petitioners beyond any shadow of doubt but prosecution miserably failed to discharge onus, therefore, by extending benefit of doubt to petitioners--Petition allowed.    

                                                               [Para 6, 7, 8 & 9] A, B, C & D

1995 SCMR 1345 ref.

Malik Amjad Ali, Advocate for Petitioners.

Mr. Nadeem Akhtar Bhatti, AAG for State.

Mr. Mubaras Khan Alizai, Advocate for Respondent No. 2.

Date of hearing: 9.3.2017.

Order

Through this constitution petition, the petitioner, assails the vires of order dated 27.04.2016 passed by learned Additional Sessions Judge, Attock, through which he convicted the petitioners u/S. 3 of Illegal Dispossession Act, 2005 and sentenced them to one year S.I. each with a fine of Rs. 50,000/- each, in default to further undergo three months S.I. each. The petitioners were further directed to pay compensation of Rs. 50,000/-each (total Rs. 2,00,000/-) to the complainant under Section 544-A, Cr.P.C. and in default of payment of compensation to further undergo six months S.I. The accused was extended the benefit of Section 382-B, Cr.P.C. They were also ordered to restore possession of house No. 21-E, Peoples Colony, Attock to the complainant/Respondent No. 2.

2.  Brief facts of the case are that Respondent No. 2 filed private complaint u/S. 3/4 of Illegal Dispossession Act, 2005, alleging therein that she was owner in possession of property Bearing No. 21-E, situated in Peoples Colony, Attock, and has given the same on rent of Rs. 4000/- per month to one Allah Daad. and accused/petitioners have no concern whatsoever with it but on 27.10.2013 at 12:00 pm (noon) they forcibly took possession of the same after throwing the household articles of the tenant. The learned trial Court after recording evidence of the parties convicted and sentenced the petitioners in the manner mentioned above.

3.  Learned counsel for the petitioners contends that the impugned order is against the law and the facts; that admittedly the complainant is not the eye witness of the occurrence; that alleged eyewitness of the occurrence i.e. Allah Daad, who was tent of the complainant, has not been produced in evidence; that no rent deed has been produced by the complainant; that in fact the complainant is maternal grandmother of the petitioners and the house was purchased by them vide agreement to sell dated 18.08.2009 (Ex.DD) from their maternal grandfather Hukam Din (deceased) and the said agreement to sell is still in field; that admittedly the complainant is not the resident of the Attock and she lives in Hazro; that the impugned order is result of mis-reading and non-reading of evidence on record; that the complainant miserably failed to prove its case against the petitioners, hence they deserve acquittal.

4.  On the other hand learned counsel for Respondent No. 2 has opposed this petition and supported the impugned order on the ground that learned trial Court while passing the impugned order has committed no illegality; that the complainant has successfully proved its case against the petitioners by producing confidence inspiring and trustworthy evidence and the same needs no interference by this Court in exercise of constitutional jurisdiction; that the learned trial
Court has rightly ordered for restoration of the possession to Respondent No. 2.

5.  Heard. Record appended with this file perused.

6.  It has been observed that according to the complainant she was owner in possession of property Bearing No. 21-E, situated in Peoples Colony, Attock, and the same was in possession of one Allah Daad on monthly rent of Rs. 4000/- per month and on 27.10.2013 at 12:00 pm (noon) the petitioners forcibly took possession of the same after throwing the household articles of the tenant. Admittedly the complainant Mst. Zafri Bibi (PW.1) and Murad Khan (PW.2) are not the eyewitnesses of the occurrence as the complainant was resident of Hazro and not Attock and the complainant was informed regarding the occurrence by one Allah Daad but surprisingly said most natural witness of the occurrence, was not produced by the complainant in evidence for the reason best know to the complainant. It is settled by now that the prosecution cannot withheld the evidence of any material witness and if any party withholds the best piece of evidence, then it can fairly be presumed that such party has some sinister motive behind it See Muhammad Rafique and others vs. The State and others (2010 SCMR 385). Similarly act of withholding of most natural and a material witness of occurrence would create an impression that had such witness been brought into witness box, he might not have supported the prosecution. Reliance is placed on the case of Lal Khan vs. The State (2006 SCMR 1846).

7.  It is also a circumstance that the complainant is maternal grandmother of the accused/petitioners but the said fact has been suppressed by the complainant while filing the private complainant. The said fact creates doubt about the prosecution story. It is also a circumstance that civil litigation is also pending adjudication between the parties. The accused petitioners in their statements u/S. 342, Cr.P.C. also stated about the fact of purchase of the disputed house from their maternal grandfather Hukim Din.

8.  In view of the above, it is observed that the learned trial Court has not appreciated the evidence produced by the prosecution in its true perspective. After considering all the pros and cons of the case, I have come to an irresistible conclusion that the prosecution has failed to prove its case against the appellant beyond any shadow of reasonable doubt. The prosecution has relied upon discrepant, contradictory and flimsy evidence which is also full of dishonest improvements while implicating the accused and carving the story of their own choice based on their whims. The learned trial Court has misread the evidence on record in violation of the dictum laid by the Superior Courts in various pronouncement, therefore, conviction of the petitioners is not sustainable in the eyes of law. There is no cavil to the proposition that if there is a single circumstance which creates reasonable and cogent doubt regarding the prosecution case, the same is sufficient to extend benefit to the accused, whereas, the instant case is replete with circumstances which have rendered serious doubts about the prosecution story. In the case of Tariq Pervez vs. The State (1995 SCMR 1345), the Hon’ble Supreme Court of Pakistan at page 1347, was pleased to observe as under:

“ .... The concept of benefit of doubt to an accused person is deep-rooted in our country. For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as matter of grace and concession but as a matter of right.”

9.  For what has been discussed, I am of the view that prosecution was duty bound to produce trust worthy sure footed and confidence inspiring evidence to prove charges against the petitioners beyond any shadow of doubt but prosecution miserably failed to discharge onus, therefore, by extending benefit of doubt to the petitioners. W.P.No. 1311/2016 is accepted. Resultantly, conviction and sentence awarded to the said petitioners by the learned trial Court vide judgment dated 27.04.2016, is set aside and they are acquitted of the charge. The petitioners are on bail. Their bail bonds are discharged.

(Y.A.)  Petition allowed

Murder by Churri (Knife)

 PLJ 2024 Cr.C. (Note) 219

[Lahore High Court, Lahore]

Present: Manzoor Ahmad Malik and Malik Shahzad Ahmad Khan, JJ.

SHAUKAT HAYAT alias FATEH MUHAMMAD--Appellant

versus

STATE--Respondents

Crl. A. No. 126-J & M.R No. 104 of 2009, heard on 25.3.2013.

Pakistan Penal Code, 1860 (XLV of 1860)--

----S. 302(b)--Qatl-e-amd--Conviction and sentence--Challenge to--“Medical evidence is exactly in line with ocular account”--Ocular account--Motive--Divorce--Sufficient incriminating evidence--Medical evidence--Benefit of doubt--Sentence altered--It is case of complainant that appellant inflicted two churri blows on deceased, hitting him on left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank--(PW.3) who conducted post mortem examination on dead body of deceased in post mortem examination report--The motive behind occurrence as alleged in FIR was that deceased had divorced Mst. Parveen maternal cousin of appellant and because of said grudge appellant committed murder of deceased by inflicting churri blows whereas complainant (PW.4) has stated in her cross-examination that wife of deceased had four brothers--She further stated that brothers of complainant and appellant never complained of showed anger over fact of divorce prior to occurrence--In circumstances there was no reason for appellant to commit murder of deceased because of this motive--There is sufficient incriminating evidence on record in form of straightforward and confidence inspiring ocular acount furnished by complainant (PW.4) and (PW.5), fully supported by medical evidence furnished (PW.3), even if evidence motive and recovery of Churri (P.2) at instance of appellant are excluded from consideration to maintain conviction of appellant under Section 302 (b), PPC awarded by trial Court, which is accordingly maintained--Held: It is well recognized principle of law that accused is entitled for benefit of any doubt as an extenuating circumstance, while deciding question of sentence--While maintaining conviction under Section 302(b), PPC, we alter sentence of appellant from punishment of death to imprisonment for life--The amount of compensation and sentence of imprisonment in default thereof as ordered by trial Court is maintained.                 

                                              [Para 12, 14, 15, 16 & 17] A, B, C, D & E

2009 SCMR 1188.

Mr. Abid Hussain, Advocate/Defence Counsel appointed at State for Appellant.

Mr. Arshad Mahmood, Deputy Prosecutor General for State.

Mr. Imtiaz Hussain Khan Baloch, Advocate for Complainant.

Date of hearing: 25.3.2013.

Judgment

Manzoor Ahmad Malik, J.--This judgment shall dispose of Criminal Appeal No. 126-J of 2009 titled as “Shaukat Hayat alias Fateh Muhammad versus The State” and Murder Reference No. 104 of 2009 titled as “State versus Shaukat Hayat alias Fateh Muhammad” as both these matters have arisen out of the same case i.e. FIR No. 374/2008 dated 13.06.2008, offence under Section 302, PPC, registered at Police Station Satellite Town, District Sargodha.

2. Shaukat Hayat alias Fateh Muhammad (appellant) was tried by the learned Additional Sessions Judge Sargodha in the above mentioned case. He was convicted vide judgment dated 23.02.2009, under Section 302(b), PPC and sentenced to death. He was also directed to pay Rs. 1,00,000/-(rupees one lac only) as compensation to the legal heirs of Muhammad Shahbaz (deceased) and in default whereof to undergo simple imprisonment for further six months. The learned trial Court has sent Murder Reference No. 104 of 2009 for confirmation or otherwise of the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (conviet) as required under Section 374, Code of Criminal Procedure.

3. Precisely, facts of the case, as contained in P.I.R. (Exh.PE/1), registered on the basis of statement (Exh.PE) made by Mst. Nasreen Akhtar (PW.4), are that complainant’s side consisted of four sisters and one brother namely Shahbaz aged about 24/25 years. Three sisters including complainant were married in Faisalabad whereas fourth sister namely Mst. Naseem was married in Lahore. 5/6 years prior to occurrence, Muhammad Shahbaz brother of the complainant was married to Mst. Parveen daughter of Khushi Muhammad, caste Kamboh, resident of Chak No. 115 Southern, situated within the jurisdiction of Police Station Ata Shaheed and out of the said wedlock a daughter namely Kiran aged 4% years and a son namely Mustafa aged about 3½ years were born who were alive. About three years before the occurrence, Muhammad Shahbaz brother of the complainant due to strained relations divorced his wife Mst. Parveen Bibi and his in-laws filed a suit for recovery of dowry articles in Civil Court, Sargodha which was pending adjudication. ¾ days prior to the occurrence, complainant had come to see her parents at Street No. 14 Jinah Colony, Sargodha. Complainant was a matriculate. On 13.06.2008 at 10:30 p.m. Shaukat son of Ferozdin, caste Kamboh, resident of Chak No. 88 Southern, situated within the jurisdiction of Police Station Saddar Sargodha, maternal cousin (mamoonzad) of complainant came as a guest. After serving him supper complainant and her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim son of Rehmat Ali and brother Shahbaz were chatting with Shaukat while laying on the cots and a bulb was on in the Courtyard. At about 2:30 am. (night) all of a sudden Shaukat Ali (appellant) got out a churri from his folding (dab) of shalwar and raised a lalkara to Shahbaz that he would teach a lesson for divorcing his maternal cousin (khalazad) namely Mst. Parveen and inflicted two churri blows to Shahbaz brother of the complainant while he was laying on the cot, hitting him on the left side of chest and thereafter gave churri blows one after another on left biceps, left armpit and left flank. Shahbaz fell down from the cot while writhing. Shaukat (appellant) while brandishing churri fled away from the spot. When complainant and his mother attended Muhammad Shahbaz he had succumbed to the injuries at the spot. Motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat and because of said grudge he (appellant) committed the murder of Shahbaz by inflicting churri blows. The occurrence was witnessed by Mst. Hameedan Bibi and Ibrahim besides the complainant. Complainant was about to proceed to Police Station to report the matter but in the meantime Manzoor Hussain S.I (PW.9) reached at the spot.

4. Manzoor Hussain SI/SHO (PW.9) was posted as Incharge Police Post Lari Adda of Police Station Satellite Town, Sargodha. On 13.06.2008 after receiving information about the occurrence he reached at the spot and recorded the statement (Exh.PE) of Mst. Nasreen Akhtar and sent the same to Police Station for registration of FIR. Thereafter he inspected the dead body of Muhammad Shahbaz (deceased) and prepared injury statement (Exh.PC), inquest report (Exh.PD). He secured blood stained earth from the place of occurrence vide memo. (Exh.PH). He also took into possession blood stained cot (P.3) from the spot vide memo. (Exh.PG) and last worn clothes of the deceased viz shalwar (P.1) vide recovery memo. (Exh.PK). He also got prepared scaled site-plan (Exh.PA and Exh.PA/1) by Muhammad Saleem Draftsman (PW.2). He arrested Shaukat Hayat (appellant) on 29.06.2008 and obtained his physical remand. On 03.07.2008 appellant allegedly got recovered churri (P.2) vide recovery memo. (Exh.PF). Thereafter he got prepared the challan and submitted the same in the Court of competent jurisdiction.

5. The appellant was summoned by the learned Additional Sessions Judge Sargodha to face the trial. Copies of the documents, as required under Section 265-C, Code of Criminal Procedure, were provided to him and formal charge under Sections 302, PPC was framed against him on 05.01.2009 to which he pleaded not guilty and claimed trial. In order to prove its case, prosecution examined as many as nine witnesses, in all. Ocular account was furnished by Mst. Nasreen Akhtar complainant (P.W.4) and Mst. Hameeda Bibi (PW.5). Medical evidence was furnished by Dr Muhammad Iqbal (P.W.3). Mst. Nasreen Akhtar (PW.4) and Sagheer Ahmad (PW.6) witnessed the alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF). Manzoor Hussain SI/SHO (PW.9) investigated this case and while appearing in the witness box, narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned DDPP gave up PWs namely Ibrahim, Munawar Khan, Shahnawaz S.I, Muhammad Saleem being unnecessary and PW Ijaz Ahmad being on medical leave and closed the prosecution case on 18.02.2009 after tendering in evidence the report of Chemical Examiner (Exh.PL) and that of Serologist (Exh.PM). Statement of the appellant was recorded under Section 342, Code of Criminal Procedure on 20.02.2009 wherein he refuted all the allegations of prosecution. To a question as to why the case against him and why the prosecution witnesses had deposed against him, Shaukat Hayat alias Fateh Muhammad (appellant) replied as under:

“I was on very good terms with the deceased and his parents. I have been involved in this case because it was a blind murder in the first place and I was roped in as accused by the complainant since I always considered her to be a negative character and I always spoke against her openly in biradari gatherings.”

The appellant did not appear as his own witness as provided under Section 340(2) Code of Criminal Procedure nor did he produce any evidence in his defence.

6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence, this appeal and murder reference.

7. Learned counsel for the appellant, in support of this appeal, contends that the appellant has falsely been implicated in this case; that there is a delay of two hours in reporting the matter to the Police without there being any plausible explanation whereas distance between the Police Station and the place of occurrence was just two furlongs, which casts serious doubts about the presence of witnesses of ocular account at the spot, that both the witnesses of the ocular account i.e. Mst. Nasreen Akhtar (PW.4) and Mst. Hameeda Bibi (PW.5) are interested witnesses as they are closely related inter se as well as to the deceased; that presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is highly improbable and unnatural as she was the resident of Street No. 4 Chamanzar Colony, Faisalabad whereas the occurrence took place at Jinah Colony Sargodha; that in the FIR complainant has stated that she came to the house of her parents ¾ days prior to occurrence, whereas while appearing before the learned trial Court she changed her version by stating that she had come to the house of her mother Mst. Hamida Bibi about seven days prior to the occurrence; that motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross-examination that Mst. Parveen Bibi wife of the deceased had four brothers and that in the circumstances, there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased), that the alleged recovery of Churri (P.2) at the instance of appellant is immaterial as there is no report of Chemical Examiner or Serologist regarding churri (P.2) on the record; that the case of prosecution is of doubtful nature and the appellant is entitled to acquittal.

8. On the other hand, learned Deputy Prosecutor General, assisted by learned counsel for the complainant, opposes this appeal on the grounds that there is no conscious or deliberate delay in reporting the matter to the police if the circumstances of the case such as the time of occurrence are taken into consideration as the occurrence took place at night time and no male member except Ibrahim maternal grandfather of the complainant being infirm and old was present in the house; that presence of Mst. Hameeda Bibi (PW.5) at spot is established from the fact that she was resident of the same house where this incident took place, therefore, her presence in her own house at the odd hours of night was quite natural. So far as presence of Mst. Nasreen Akhtar complainant (PW.4) at the spot is concerned, learned counsel contends that the said witness stated in the FIR that she had come to the house of her parents ¾ days prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is the custom of our society that after the marriage the daughters pay frequent visits to the house of their parents; that both these witnesses have no enmity against the appellant for his false implication in this case; that though both the witnesses of the ocular account are related inter se as well as to the deceased but at the same time they are also related to the appellant as well; that even otherwise substitution in such like cases is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits; that the motive has also been proved; that the medical evidence is exactly in line with the ocular account; that the prosecution case is further corroborated by the recovery of churri (P.2) which was taken into possession through recovery memo. (Exh.PF); that there is no mitigating circumstance in this case, therefore, the appellant does not deserve any leniency even in the quantum of sentence,

9. We have heard learned counsel for the appellant, learned counsel for the complainant as well as the learned Deputy Prosecutor General for the State at a considerable length and have also gone through the record with their able assistance.

10. This unfortunate incident, wherein Muhammad Shahbaz brother of the complainant, was done to death, as per FIR (Exh.PE/1) took place on 13.06.2008 at 2:30 a.m. (night) in the area of Jinah Colony situated within the jurisdiction of Police Station Satellite Town, District Sargodha and the matter was reported to the Police by Mst. areen Akhtar (PW.4) at 4:30 a.m. (night) i.e. after two hours of the occurrence. It is mentioned in the FIR that only women folk along with Ibrahim maternal grandfather of complainant (who was infirm being of advanced age) were present in the house at the time of occurrence. Considering all the circumstances of the case, especially the time of occurrence coupled with the social status of the complainant side we are of the view that there was no conscious or deliberate delay in reporting the matter to the Police.

11. The ocular account was furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5). The presence of Mst. Hameeda Bibi (PW.5) at the spot is established from the fact that she was resident of the same house where this incident took place, whereas Mst. Nasreen Akhtar complainant (PW.4) had come to the house of her parents prior to the occurrence, therefore, her presence at the spot cannot be considered unnatural or improbable as it is instinctive nature for a daughter to visit her parents house after marriage. We further noted that there was no enmity between the parties to prompt the complainant or the other witness of the ocular account to falsely depose against the appellant. Even otherwise substitution in such like case is a rare phenomenon as kith and kin of the deceased will not implicate an innocent person by letting off the real culprits. The argument of learned counsel for the appellant that Mst. Nasreen Akhtar has changed her version while appearing before the learned trial Court by stating that she had come to the house of her mother seven days prior to the occurrence does not hold much water as the said change in version does not amount to improvement rather at the most it is just a discrepancy which might have crept into the record by afflux of time.

12. It is the case of the complainant that Shaukat Hayat alias, Fateh Muhammad (appellant) inflicted two churri blows on Muhammad Shahbaz (deceased), hitting him on the left side of chest and thereafter gave churri blows consecutively on his left biceps, left armpit and left flank. Dr Muhammad Iqbal (PW.3) who conducted post mortem examination on the dead body of Muhammad Shahbaz (deceased) in the post mortem examination report (Exh.PB) noted the following injuries:

1.       A incised wound 4 cm x 2 cm on middle part of front of left chest inner side 6 cm from left nipple 3 cm from midline.

2.       Incised wound 5 cm x 2½ cm on front of lower part of middle of left chest 5 em below left nipple and 4 cm from midline.

3.       Incised wound 8½ cm x 5 cm on front of inner and lower part of left arm, 4 cm above left elbow.

4.       Incised wound 1½ x 1 cm on left axilla.

5.       Incised wound 5 x 3 cm on the back of left upper region.

Therefore, we are of the view that medical evidence is exactly in line with the ocular account.

13. So far as alleged recovery of churri (P.2) at the instance of appellant which was taken into possession vide recovery memo. (Exh.PF) is concerned the same is immaterial as no report regarding churri (P.2) either by the Chemical Examiner or of Serologist is available on record.

14. The motive behind the occurrence as alleged in the FIR was that Muhammad Shahbaz (deceased) had divorced Mst. Parveen maternal cousin of the Shaukat Hayat alias Fateh Muhammad and because of said grudge appellant committed the murder of Shahbaz by inflicting churri blows whereas Mst. Nasreen Akhtar complainant (PW.4) has stated in her cross examination that Mst. Parveen Bibi wife of the deceased had four brothers. She further stated that brothers of Mst. Parveen Bibi and the appellant never complained of showed anger over the fact of divorce prior to the occurrence. In the circumstances there was no reason for the appellant to commit the murder of Muhammad Shahbaz (deceased) because of this motive. Therefore the motive alleged by the prosecution does not appeal to common sense and we are of the view that prosecution has failed to prove the motive part of the occurrence.

15. There is sufficient incriminating evidence on the record in the form of straightforward and confidence inspiring ocular acount furnished by Mst. Nasreen Akhtar complainant (PW.4) and Mst. Hameeda Bibi (PW.5), fully supported by the medical evidence furnished by Dr. Muhammad Iqbal (PW.3), even if the evidence motive and recovery of Churri (P.2) at the instance of appellant are excluded from consideration to maintain the conviction of Shaukat Hayat alias Fateh Muhammad appellant under Section 302 (b), PPC awarded by the learned trial Court, which is accordingly maintained.

16. However, we have noted that it is not a case of capital punishment for the following reasons:-

(a)      Recovery of Churri (P.2) is not helpful for the prosecution because of the reasons as elaborated in para 13 above.

(b)      Motive has not been believed by us as discussed in para 14 above.

(c)      The circumstances suggest that there was no serious or deep rooted enmity between the parties and the occurrence took place at the spur of moment as it is the case of prosecution that on 13.06.2008 at 10:30 p.m. appellant came in the house of complainant and soon after his arrival he was served meal. Thereafter complainant, her mother Mst. Hameeda Bibi, maternal grandfather Ibrahim and Muhammad Shahbaz (deceased) remained busy in chatting with Shaukat Hayat alias Fateh Muhammad (appellant) till 2:30 a.m. Something else happened prior to the occurrence which has not been brought on record.

Moreover, by now it is well recognized principle of law that the accused is entitled for the benefit of any doubt as an extenuating circumstance, while deciding question of sentence. We, here, respectfully refer to an observation of the Hon’ble Supreme Court of Pakistan in the case of “Mir Muhammad alias Miro versus The State” (2009 SCMR 1188 wherein at page 1191, the Hon’ble Supreme Court of Pakistan has emphasized as under:-

“9.      It will not be out of place to emphasize that in criminal cases, the question of quantum of sentence requires utmost care and caution on the part of the Courts, as such decisions restrict the life and liberties of the people. Indeed the accused persons are also entitled to extenuating benefit of doubt to the extent of quantum of sentence.”

17. Therefore, while maintaining the conviction under Section 302(b), PPC, we alter the sentence of Shaukat Hayat alias Fateh Muhammad (appellant) from punishment of death to imprisonment for life. The amount of compensation and the sentence of imprisonment in default thereof as ordered by the learned trial Court is maintained. Appellant is also extended the benefit of Section 382-B, Code of Criminal Procedure. With the above modification in the quantum of sentence Criminal Appeal No. 126-J of 2009 is dismissed.

18. Murder Reference No. 104 of 2009 is answered in the NEGATIVE and the sentence of death awarded to Shaukat Hayat alias Fateh Muhammad (convict) is NOT CONFIRMED.

(A.A.K.)          Appeal dismissed