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06/01/2024

-Ss. 498 & 498-A--Pre-arrest bail--Merits of the case--While granting pre-arrest bail, the merits of the case can be touched upon by the Court.
PLJ 2023 SC (Cr.C.) 315
[Appellate Jurisdiction]
Present: Sayyed Mazahar Ali Akbar Naqvi and Syed Hasan Azhar Rizvi, JJ.
ABDUL REHMAN--Petitioner
versus
STATE etc.--Respondents
Crl. P. No. 611-L of 2023, decided on 11.8.2023.
(On appeal against the order dated 07.06.2023 passed by the Lahore High Court, Lahore in Crl. Misc. No. 35337-B/2023)
Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 498 & 498-A--Pakistan Penal Code, (XLV of 1860), Ss. 447/427/ 503/511/109/148/149--Delay of 62 days in FIR--Civil litigation--Co-accused innocent--Criminal intimidation--Pre-arrest bail--confirmation--Allegation against the petitioner is that he alongwith co-accused plowed and destroyed the wheat crop of the complainant and also set his millet crop on fire--Land in question is owned and possessed by him and a civil litigation regarding the same is also pending before the court of competent jurisdiction--Primary dispute between the parties is with regard to the ownership/possession of the land in question--The crime report was lodged after a delay of 62 days--Two co-accused of the petitioner, who were specifically nominated in the crime report, have been declared innocent during investigation--Liberty of a person is precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations--Criminal intimidation section 503 PPC, whenever an over act is materialized and ended into an overt act, the provision of section 506 PPC would not be applicable and the only provision which will remain in the field is the over act, which is committed in consequence of criminal intimidation--Question of applicability of section 511 PPC, which is applied only where the prosecution is not certain about the offences--Confirm pre-arrest bail.

[P. 317] A, B, C & E

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

----Ss. 503/506--Criminal intimidation Section 503, PPC, whenever an over act is materialized and ended into an overt act, the provision of section 506 PPC would not be applicable. [P. 317] D

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

----Ss. 498 & 498-A--Pre-arrest bail--Merits of the case--While granting pre-arrest bail, the merits of the case can be touched upon by the Court. [P. 318] F

Mr. Zulfiqar Ali Dhuddi, ASC a/w Petitioner (Through video link from Lahore).

Mirza Abid Majeed, DPG and Mr. Abdul Maalik, SI and Mr. Idrees Afzal, SHO for State.

Date of hearing: 11.8.2023.

Order

Sayyed Mazahar Ali Akbar Naqvi, J.--Through the instant petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the order dated 07.06.2023 passed by the learned Single Judge of the learned Lahore High Court, Lahore, with a prayer to grant pre-arrest bail in case registered vide FIR No. 12/2023 dated 18.01.2023 under Sections 447/427/511/109/148/ 149, PPC (Sections 435 & 506, PPC added subsequently) at Police Station Kakrali, District Gujrat, in the interest of safe administration of criminal justice.

2. Briefly stated the allegation against the petitioner is that he along with co-accused plowed and destroyed the wheat crop of the complainant and also set his millet crop on fire.

3. At the very outset, it has been argued by learned counsel for the petitioner that the petitioner has been falsely roped in this case against the actual facts and circumstances. Contends that there is a delay of more than two months in lodging the FIR for which no plausible explanation has been put forth by the complainant. Contends that the land, which is the root cause of the occurrence, does not belong to the complainant and a civil litigation is pending between the parties.

4. On the other hand, learned Law Officer opposed the petition by contending that the petitioner has specifically been nominated in the crime report with a specific role, therefore, he does not deserve any leniency from this Court.

5. We have heard learned counsel for the parties at some length and have perused the available record with their able assistance.

6. As per the contents of the crime report, the allegation against the petitioner is that he along with co-accused plowed and destroyed the wheat crop of the complainant and also set his millet crop on fire. However, it is the stance of the petitioner that the land in question is owned and possessed by him and a civil litigation regarding the same is also pending before the Court of competent jurisdiction. It seems that the primary dispute between the parties is with regard to the ownership/possession of the land in question. In this view of the matter, the possibility of false implication just to pressurize the petitioner’s side to gain ulterior motives cannot be ruled out. However, at this stage, we do not want to comment on this aspect of the matter, lest it may prejudice the case of either of the party. The crime report was lodged after a delay of 62 days for which the complainant did not utter a single word. In the crime report, only a general role has been ascribed to the petitioner and his six co-accused. We have been informed that two co- accused of the petitioner, who were specifically nominated in the crime report, have been declared innocent during investigation. Even otherwise, we have been informed by the learned Law Officer that all the seven accused have been ascribed the role of jointly causing a loss of about Rs. 100,000/- to the complainant. It is settled law that liberty of a person is a precious right, which has been guaranteed under the Constitution of Islamic Republic of Pakistan, 1973, and the same cannot be taken away merely on bald and vague allegations. So far as ‘criminal intimidation’ is concerned, the same has been defined in Section 503, PPC. A bare perusal of this provision of law makes it clear that whenever an overt act is materialized and ended into an overt act, the provision of Section 506, PPC would not be applicable and the only provision which will remain in the field is the overt act, which is committed in consequence of criminal intimidation. Similarly, the question of applicability of Section 511, PPC, which is applied only where the prosecution is not certain about the offences, would also be resolved by the learned trial Court. It is now established

that while granting pre-arrest bail, the merits of the case can be touched upon by the Court. Reliance is placed on Miran Bux vs. The State (PLD 1989 SC 347), Sajid Hussain @ Joji vs. The State (PLD 2021 SC 898), Javed Iqbal vs. The State (PLD 2022 SCMR 1424) & Muhammad Ijaz vs. The State (2022 SCMR 1271). Taking into consideration all the facts and circumstances stated above, we are of the view that the case of the petitioner squarely falls within the ambit of Section 497(2), Cr.P.C. entitling for further inquiry into his guilt.

7. For what has been discussed above, we convert this petition into appeal, allow it, set aside the impugned order and confirm the ad interim pre-arrest bail granted to the petitioner by this Court vide order dated 03.08.2023.

(K.Q.B.) Appeal allowed

02/01/2024

02/01/2024

SC: Order of high court maintained in repspect of case of SHO misbehaved with magistrate.

31/12/2023

Happy New Year

30/12/2023

*--Islamic juris-prudence---Rule of benefit of doubt occupied pivotal place in Islamic law---The Holy Prophet (P.B.U.H.) held that "Mistake of Qazi (judge) in releasing a criminal was better than his mistake in punishing an innocent".*

2015 Y L R 1515
[Lahore]
Before Arshad Mahmood Tabbasum, J
ZAHOOR AHMAD---Petitioner
versus
The STATE and another---Respondents
Criminal Revision No.481 of 2011, heard on 21st March, 2014.
(a) Penal Code (XLV of 1860)---
----Ss. 337-A(ii)(v), 148 & 149---Criminal Procedure Code (V of 1898), Ss.154 & 200---Shajjah-i-Mudihah, Shajjah-i-Ammah, rioting, armed with deadly weapon, every member of unlawful assembly guilt of offence committed in prosecution of common object---Appreciation of evidence---Benefit of doubt---Accused contended that courts below acquitted co-accused but convicted him on the basis of same evidence---Injury caused to complainant could not be attributed to accused in view of medical evidence and deposition of doctor---Complainant had himself stated that injury was caused to him by co-accused---Accused was convicted for the offence which he had not committed---Accused was found innocent in Police investigation---Benefit of doubt had to go to accused---Even a single doubt in prudent mind was sufficient for acquittal---Courts below wrongly convicted and sentenced accused---Accused was acquitted.
(b) Criminal trial---
----Benefit of doubt---Nature and scope---Rule of benefit of doubt was a rule of prudence which could not be ignored in dispensing justice in accordance with law---Better to acquit ten guilty persons rather than convicting one innocent person.
Ayub Masih's case PLD 2002 SC 1048 rel.
(c) Criminal trial---
----Benefit of doubt---Islamic juris-prudence---Rule of benefit of doubt occupied pivotal place in Islamic law---The Holy Prophet (P.B.U.H.) held that "Mistake of Qazi (judge) in releasing a criminal was better than his mistake in punishing an innocent".
Ayub Masih's case PLD 2002 SC 1048 rel.
Muhammad Usman Sharif Khosa for Petitioner.
Abdul Qayyum APG for the State.
Syed Muhammad Hussain Shah Qadri and Syed Muhammad Ali Bukhari for Respondents.
Date of hearing: 21st March, 2014.
JUDGMENT
ARSHAD MAHMOOD TABASSUM, J.---This petition under Sections 435/439 of Cr.P.C, calls in question judgment dated 19-10-2011, passed by the learned Additional Sessions Judge, Dera Ghazi Khan, whereby he upheld the judgment dated 31-3-2011, passed by the learned Judicial Magistrate, Dera Ghazi Khan, through which he con-victed the petitioner under section 337A(v), P.P.C., and sentenced him, to payment of Arsh, being 1/3rd of the Diyat, amounting to Rs.2,14,587 in default whereof, he was to be kept in jail till payment of the Arsh, as aforesaid.
2. Briefly, the petitioner, along with others, was tried by the learned trial court, in a private complaint filed against him and others under Sections 337A(ii), A(v)/148/ 149, P.P.C., and was convicted and sentenced as aforesaid.
3. The allegation against the petitioner was that, he along with his co-accused persons, on 3-5-2007, at about 5.30 p.m., launched an attack, upon the members of the complainant party. The specific allegation against the petitioner Zahoor Ahmad was that he while equipped with an iron rod, hit the same on the head of Muhammad Irshad complainant, while his co-accused, namely Abdul Ghafoor, gave sota blow on his head. Initially, case FIR No. 290, dated 3-5-2007, under sec-tion 337-A(ii)/34, P.P.C., was registered at Police Station Kot Chutta, Dera Ghazi Khan, but the complainant, being dissatisfied with the police investigation, filed the above said private complaint. The learned trial court, on conclusion of trial, acquitted co-accused of the petitioner, however, convicted and sentenced him, as aforesaid. The appeal filed by the petitioner against his conviction and sentence, failed before the learned first appellate court on 19-10-2011, hence, this petition.
4. Learned counsel for the petitioner has argued, that on the basis of the same evidence, co-accused of the petitioner have been acquitted, while he has been convicted; that the impugned conviction and sentence, is against law and facts of the case; that the complainant/injured P.W. namely, Muhammad Irshad, during the course of cross-examination, has stated that the injury caused to him by Ghafoor (co-accused of the petitioner) had bleeded; that this portion of the statement, of the complainant, has caused serious doubt, as to whether the injury for which the petitioner has been convicted, was caused to him by the present petitioner or his co-accused namely, Ghafoor, hence, in view of the above discrepancy, in the prosecution case, petitioner was liable to be acquitted by extending benefit of doubt but he has illegally been convicted and sentenced by the learned trial court, which has been erroneously upheld by the learned first appellate court.
5. Conversely, learned counsel for the complainant, has fully supported the impugned conviction and sentence.
6. I have heard the learned counsel for both the parties and myself perused the record.
7. It appears that the complainant, while appearing as P.W.2, has categorically stated as under:--
Similarly, he has stated:-
From the above depositions, made by the complainant, it is quite clear that he sustained two injuries on his head. According to Doctor Farkhanda Jabin, P.W.1, she had observed two injuries on the head of Muhammad Irshad complainant which included:--
"'Injury No. 1. A lacerated wound of about 6 cm x 1 cm in the middle and top of head bone was exposed.
Injury No.2 There was swelling about 5 cm x 4 cm with bruise on it at the right temporal region of the head."
The injury attributed to Abdul Ghafoor, co-accused of the petitioner, was on the left side of head. In this regard, in para No.1 of the complaint, it is mentioned as under:-
Thus, injury No.2, as mentioned above, which was found on the right temporal region of the head, cannot be attributed to Zahoor Ahmad petitioner. Further, the complainant, during cross-examination states:--
8. Considering the above depositions of the complainant/injured P.W., it appears that the bleeding must have oozed from injury No.1, which was a lacerated wound and not from injury No.2, which was just a swelling. Therefore, it appears that the complainant has attributed injury No.1, to Abdul Ghafoor. This being so, a serious doubt arises, that the petitioner had not caused injury No.1, for which, he has been convicted and sentenced by the learned trial court and upheld by the learned first appellate court. Moreover, the petitioner was found not guilty during police investigation and the weapon of offence was also not recovered from him.
9. It is well settled by now that the benefit of even the slightest doubt, has to go to the accused and there may not be several doubts, to acquit an accused rather, even a single doubt, causing reasonable probability, in the prudent mind, that the accused is not guilty, is sufficient to acquit him. Reference, in this regard, may be made to the case of Ayub Masih's case (PLD 2002 SC 1048), wherein the apex Court has ruled as under:--
"It is also firmly settled that if there is an element of doubt as to the guilt of the accused, the benefit of that doubt must be extended to him. The doubt, of course, must be reasonable and not imaginary or artificial. The rule of benefit of doubt, which is described as the golden rule, is essentially a rule of prudence, which cannot be ignored while dispensing justice in accordance with law. It is based on the maxim, "it is better that ten guilty persons be acquitted rather than one innocent person be convicted". In simple words it means that utmost care should be taken by the Court in convicting an accused. It was held in "The State v. Mushtaq Ahmed (PLD 1973 SC 418) that this rule is antithesis of haphazard approach or reaching a fitful decision in a case. It will not be out of place to mention here that this rule occupies a pivotal place in the Islamic law and is enforced rigorously in view of the saying of the Holy Prophet (P.B.U.H) that the "mistake of Qazi (Judge) in releasing a criminal, is better than his mistake in punishing an innocent."
10. In the light of above discussion, I am of the view, that both the learned courts below, have misread and misconstrued the evidence available on record and thereby wrongly convicted and sentenced the petitioner. Accordingly, by accepting this petition, the impugned conviction and sentence is hereby set-aside, and the petitioner is acquitted of the charge.
11. Petition allowed.
ARK/Z-23/L Petition allowed.

30/12/2023

No More Policegardi

29/12/2023

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17/09/2022

*Kinds of Qatl (Murder)*

تعزیرات پاکستان کے تحت قتل
کی اقسام۔

*تعزایرات پاکستان کے تحت قتل کی چار اقسام ہیں*

*1-Qatl-i-Amd –*
Section 302b Of Pakistan Penal Code

قتل کی نیت سے کیا گیا جرم جس میں انسانی جسم کو ضربات اور زخم یا تکلیف دے کر قتل کیا جاے

Punishment u/s 302;
Death as qisas
Death, IOL as tazir
25 year as tazir

*2-Qatl Shibh-i-amd*
Section 315 of PPC

انسان کو زخم دینے کی نیت سے کریمنل عمل کیا جاے اور اس سے موت واقع ہوجاے

Punishment u/s 316; liable to diyat, 25 year as tazir

*3-Qatl-i-Khata*
Section 318 of PPC

ایسا قتل جہاں نہ قتل کرنے کی نیت ہو اور نہ زخم دینے کی نیت ہو جو قتل غلطی سے ہوجاے

Punishment u/s 319; diyat, where rash and negligent act up to 5 year addition to diyat

Punishment for Qatl i- Khata by reash or negligent driving; diyat, 10 year

*4-Qatl bis Sabab*
Section 321Pakistan Penal Code

ایسا کریمنل اقدام جو قتل کرنے کی نیت سے نہ کیا گیا ہو مگر ایسے عمل سے قتل ہوجاے

Punishment; Diyat.

16/09/2022

𝐑𝐞𝐠𝐢𝐬𝐭𝐞𝐫 𝐟𝐨𝐫 Law Graduate Assessment Test (LAW-GAT) For eligibility to seek enrolment as an Advocate with Bar Council

Deadline for Online Registration:
October 3, 2022

15/09/2022

*Scope and meaning of “cross-version” in a bail matter.*

PLD 2022 Supreme Court 694

The well-settled principle of law as to the effect of a crossversion of the occurrence involved in a case, at bail stage, is that mere existence of a cross-version is not a valid ground for holding the case one of further inquiry to grant bail under Section 497(2) CrPC, unless it is supported by the material available on record of the case and on tentative assessment of that material, the court either finds it prima facie true or remains unable to determine even tentatively which one of the two versions is prima facie true. It is in the latter situation where the court remains unable to determine even tentatively, which one of the parties is aggressor and which one is aggressed upon, that the case against both parties falls within the scope of further inquiry under Section 497(2), CrPC. The determination of “the aggressor and the aggressed upon”, whether tentatively at bail stage or finally on conclusion of trial, is relevant to decide culpability of a party for the occurrence as this determination consequently decide which one of the parties was assailant and which one acted in self-defence. When a court cannot decide even tentatively, at bail stage, such culpability of a party on the basis of material on record of the case, it leaves this matter for determination on conclusion of the trial after recording the prosecution evidence and the defence evidence, if produced, and gives the benefit of the requisite further inquiry to both parties by granting them bail under Section 497(2) CrPC. If the courts start considering every case involving a cross-version as one of further inquiry without any tentative assessment of the worth of the cross-version, it can encourage an accused to concoct a false or fabricated cross-version so as to bring his case within the ambit of further inquiry and thereby get bail. That is why the courts are to make a tentative assessment of the material, if any, available on record of the case in support of the cross-version at bail stage and should not readily accept it as a valid ground to treat the case one of further inquiry under Section 497(2) CrPC.