ANNUAL REPORT FOR THE YEAR, 2007.
1. Amjad Farooq and another Vs. The State. (PLJ 2007 FSC 1, 2007 P.Cr.L.J.238)
Ss.4(1) & 156-B (V of 1898)
Mr.Justice Haziqul Khairi, Chief Justice.
Ss.4(1) & 156-B. Provisions Mandatory Investigation nullity of law provisions contained are mandatory as and when there is accusation against woman for Zina. Investigation has to be carried out by Police Officer not below the rank of Superintendent of Police.
Violation of Mandatory direction. Contemplates. No accused would be arrested without permission of the Court. No such permission was obtained by the Court, the arrest of the accused was abintio illegal as well.
Commission of Zina. Acquittal on the basis of Nikah. Proof of Zina. Accused were married to one another. Accused raised plea that they had filed certified copies of Nikahnama, Affidavits of the father and brother and two other witnesses to Nikah before trial Court that Nikah was performed between the petitioners before lodging of FIR.
2.Abdul Ghafoor Vs. The State (PLJ 2007 FSC 5)
Present: Ch.Ejaz Yousaf, C.J. Dr.Fida Muhammad Khan & S.A.Rabbani, JJ.
Ss.7 & 17(4) 302(b) & 392 PPC Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979).
Mr.Justice Dr.Fida Muhammad Khan, J.
Ss.7 & 17(4). Pakistan Penal Code, (XLV of 1860), Ss.302(b) & 392. Snatching of Vehicle from driver. Conviction and sentence. Proof was not in accordance with Section 7 of Ordinance, as neither accused pleaded guilty as required under Clause (a), nor requirement of Tazkiatul Shuhood was fulfilled, as required by clause (b) of this Section. Accused/appellant courld not be convicted U/S 17(4) of Ordinance. However, since it is proved beyond doubt that qatl-e-amd of driver “B” was committed, offence would fall U/S 302(b) PPC. As it is proved by evidence placed on record taxi and other articles belonging to deceased were recovered from appellant “A” and he was involved in qatl-e-amd of taxi driver, he is also liable U/S 392 PPC.
3. Muhammad Raheem alias Abdul Raheem and another Vs.The State and another (PLJ 2007 FSC 36, 2007 P.Cr.L.J.704)
Present: Mr.Justice Haziqul Khairi, C.J. and Mr.Justice Dr.Fida Muhammad Khan, J.
Ss.20 , 24, 391 & 395 Offence of Against Property (Enforcement of Hudood) Ordinance (VI of 1979)
Mr.Justice Justice Haziqul Khairi, Chief Justice.
Ss.20 & 24. Pakistan Penal Code, (XLV of 1860), Ss.391 & 395. Conviction and sentence recorded against accused. Challenge to Corroborative evidence created serious doubt number of loop holes on the face of it and creates serious doubts to their credibility according to them, “vardat” had taken place at night. All accused persons, including appellants, were masked and armed. They stopped Tractor on point of gun and snatched away its key and four of them took away Tractor. Not believable is, firstly; how PWs could have scuffled with seven armed persons. Secondly, how these two unarmed persons could have overpowered seven armed dacoits so as to render them unmarked, while receiving no injuries at all. Thirdly, at night time in a rural area, how could they see so clearly and for so long so as to recognize appellant after about two years of vardat. No identification parade of accused.
4. Amanullah and another Vs. The State (PLJ 2007 FSC 40, 2007 P.Cr.L.J.517)
Present: Mr.Justice Haziqul Khairi, C.J. and Mr.Justice Dr.Fida Muhammad Khan, J.
S.10(4) Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979)
Mr.Justice Dr.Fida Muhammad Khan, J.
S.10(4). Pakistan Penal Code, (XLV of 1860), Ss.302 & 34. Murder after commission of Zina-bil
jabr. Conviction & sentence. Assailed. Appreciation of evidence. No PW had seen the accused persons either committing zina or putting the deceased girl to death, however the chain of circumstantial evidence excluded hypothesis of their innocence but lead to guilt without any room for doubt. Accused also made extra judicial confessions which found corroboration from recovery of blood stained churri & shirt of the deceased. No evidence that blood stained churri was ever found earlier to that or was falsely planted. Vaginal swabs were found stained by semens. Potency test of both accused person revealed that they were capable of sexual offence. Conviction and sentence of life imprisonment upheld.
5. Haji Vs.The State. (PLJ 2007 FSC 50)
Ss.340(2) & 342 Criminal Procedure Code, (V of 1898).
Mr.Justice Haziqul Khairi, Chief Justice.
Ss.340(2) & 342. Evidence on oath. Defence witnesses. Evidence on oath in disproof of the charges or allegations made against him, and cast upon the Court a duty to seek clarification from him for retracting his earlier stand. Appellant had produced defence witnesses but not himself. In these circumstances the trial Court should have framed the question and recorded the retracted statement of appellant in writing before commencement of his defence.
6. Mehar Ali Shah Vs.The State (PLJ 2007 FSC 52, 2007 P.Cr.L.J.1242)
Present: Mr.Justice Haziqul Khairi, C.J. and Mr.Justice Salahuddin Mirza, J.
S.302(b) Pakistan Penal Code, (XLV of 1860)
Mr.Justice Haziqul Khairi, Chief Justice.
S.302(b). Conviction and sentence. Challenge to appreciation of evidence caught red-handed. Question of Maintainability all the PWs were natural witnesses. It was not the case of convict that he had any enmity either with the complainant or any other PW, so as to falsely implicate him. Plea of alibi was not proved. It was a clear cut case of murder in which he was caught red-handed with recovery of pistol. Conviction and sentence of life imprisonment was maintained.
7. Ajab Khan Vs.The State (PLJ 2007 FSC 59, 2007 P.Cr.L.J.1648)
Present:Mr.Justice Haziqul Khairi, C.J. Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza, JJ.
S.17(3) Offences Against Property (Enforcement of Hudood) (VI of 1979) S.412 Pakistan Penal Code (XLV of 1860)
Mr.Justice Hqaziqul Khairi, Chief Justice.
S.17(3). PPC (XLV of 1860), S.412. Punishment with amputation foot from the ankle. Sentence of five years. Snatched away the bag. Appreciation of evidence. Tazkiyah-al-Shahood. No iota of doubt. Accused was caught red handed. Amount was recovered from accused. No evidence has been adduced by accused in defence for his plea for demand of money by police or false implication. No justification of his conviction and sentence U/S 17 of Ordinance, 1979 was set aside but conviction and sentence the accused U/S 17(3) of the Ordinance 1979 was set aside but conviction and sentence of accused U/S 412 PPC are upheld.
8. Muhammad and another Vs.The State and another (PLJ 2007 FSC 70, 2007 P.Cr.L.J.1640)
Present: Mr.Justice Haziqul Khairi, C.J. Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza,JJ.
Ss.3 & 7 Offence of Qazf (Enforcement of Hudood) Ordinance (VIII of 1979)
Mr.Justice Haziqul Khairi, Chief Justice.
Ss.3 & 7. PPC (XLV of 1860), S.109 Offence of Zina (Enforcement of Hudood) Ordinance, 1979 Ss.10,11,15 & 16. Criminal Procedure Code (V of 1898), S.202. Private complaint. Conviction and sentence. Marriage during minority. Rukhsati did not take place. Second marriage in the age of 36 years. Challenge to. Offence of zina. Enmity between parties. Contentions of. Appellants had obtained a Fatwa from Moulvi. No Fatwa of any religious scholar, Mufti, a juris consultants is binding on a Court of law or any party and is of no legal effect, not enforceable under law, as he does not stand on the pedestal of a Judge. Respondent for her Rukhsati after she attained puberty but during 30 long years they bothered not to serve her or her father with any notice not did appellant approach f Family Court for enforcement of his conjugal rights. Accused have miserably failed to establish the childhood marriage, hence the allegation of zina fails and appellants are liable to be sentenced.
9. Umar Din and another Vs.The State. (PLJ 2007 FSC 76, 2007 P.Cr.L.J. 1627)
Present: Mr.Justice Haziqul Khairi, C.J. and Mr.Justice Salahuddin Mirza, J.
S.11 Offence of Zina (Enforcement of Hudood) Ordinance, (VII of 1979).
Mr.Justice Haziqul Khairi, Chief Justice.
---S. Criminal Procedure Code, (V of 1898)---S. 164 Conviction and sentence awarded to appellants, assailed—Benefit of doubt—Two versions—No eye-witness—PWs were not cross examined—No mark of violence or injury on abductee/victim’s external genitalia nor there were any stains of semen on abducttee/victim’s body or clothes—Swabs were stained with semen but there was no mathing or grouping—Procecution case had been torn apart by it’s own PW’s and the benefit would resultantly go to the appellants leading to there acquittal—Conviction and sentence set aside with direction to bail authorities to release them.
10. Muhammad Younus and 4 othere’s Vs.The State (PLJ 2007 FSC 81, 2007 P.Cr.L.J.1262)
Present: Mr.Justice Haziqul Khairi, C.J. Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza, JJ.
----Ss. 354, 365 & 452—PPC (XLV of 1860)
Mr.Justice Haziqul Khairi, Chief Justice.
Ss.354, 365 & 452 Offence of Zina (Enforcement of Hudood) Ordinance, (1979, S. 11—Conviction and sentence recorded against accused and acquitted u/Ss. 320, 148, 149, PPC and S. 11 of Offence of Zina (Enfocement of Hudood) Ordinance, 1979—Forged Nikahnama—Two versions—lota of doubt to house treaspssing by accused—Appreciation of evidence—Prosecutions version which was plausible more probable and appealed to mind was to be accepted when both parties were telling lies—It is the duty of the Court to sift grain from chaff convoctted and sentenced the appellants and acquitted them of murder charge—Procecution witnesses found nothing which would create doubt other prosecution witnesses corroborated the abductee for accused appellants could not point out material contradiction or discrepancy there is overwhelming irrefutable and credible evidence which pave way to the truth fullness of procecution version—Independent eye witnesses named in F.I.R. where produced which create greate doubt—Medical evidence cannot identify preparator of the offence—Appeals dismissed with modification.
11. Muhammad Nadeem alias Deemi and anothers Vs.The State (PLJ 2007 FSC 87, 2007 SD 716, 2007 P.Cr.L.J.1211)
Present: Mr.Justice Haziqul Khairi, C.J.& Mr.Justice Muhammad Zafar Yasin, J.
Ss.201 & 308 PPC (XLV of 1860) S.164 CPC (V of 1898).
S. 164—Conviction and sentence recorded against accused by trial Court—Challenge to—Cause of death to sucide—Facts—Confessional statement—Question of –Appreciation of evidence—Confession made by accused was neither made voluntarily nor it was free from coercion nor it was consistent with other evidence on record. (P.95)A
12. Mukhtar Ahmad Sepoy Ex.NO.2325998 and others Vs. Federation Of Pakistan through Secretary Ministry of Defence & others (PLJ 2007 FSC 97)
Present:Mr.Justice Haziqul Khairi, C.J. Mr.Justice Dr. Fida Muhammad Khan & Mr.Justice
Salahuddin Mirza, JJ.
Mr.Justice Haziqul Khairi, Chief Justice.
---Arts. 203-DD & 184(3)—Offence of Zina (Enforcement of Huddod) Ordinance, 1979, Ss. 11 & 10(2)(3) & 18—Criminal Procedure Code, (V of 1898), Ss. 6 & 439—Revisional jurisdiction over Hudood cases—Decision of—Military Court is not amenable to Federal Shariat Court—Conviction and sentence by Military Court—Challenge to—Decision of Military Court is not amenabale to Federal Shariat Court in revision under Art.203-DD of Constitution of Pakistan—Held: Pakistan Army Act, 1952, the Pakistan Air Force Act 1953, and the Pakistan Navy Ordinance, 1961 were examined under Art. 203-D of the Constitution by full Bench of Federal Shariat Court in the case (PLD 1985 FSC 365) in which inter alia directives were given to the Federal Government to set up Appellate courts to hear appeals under the Hudood laws though pety punishment may be made subject of revision only—There directions were duly complied with and provisions were inserted by way of amendments therein.
13. Tahir Sarwar alias Shahab and others. Vs.The State (PLJ 2007 FSC 103, 2007 P.Cr.L.J.1682)
Present: Mr.Justice Haziqul Khairi, C.J. Mr.Justice Dr.Fida Muhammad Khan & Mr.Justice Salahuddin Mirza, JJ.
Ss.11 Offence of Zina (EOH) Ordinance (VII of 1979) Ss.302,109,201 & 34 PPC (XLV of 1860)
Mr.Justice Haziqul Khairi, Chief Justice.
S.11 PPC (XLV of 1860), Ss.302,109,201 & 34. Criminal Procedure Code (V of 1898), S.342. Conviction and sentence. Challenge to. Extra Judicial confession. Abduction of deceased lady-Two versions. Circumstantial evidence which is a weak piece of evidence. No link in the chain should be broken and circumstances should be such as could not be explained away on any hypothesis other than the guilty of the accused. Extra judicial confession is weakest form of evidence. Such confession not put to accused during examination U/S 342, Cr.P.C. cannot be used against him. No credibility can be attached to an extra judicial confession made by an accused to the father and uncle of the victim not related to him with whom he had also developed enmity subsequent to the crime. Delay of one year and eight months after FIR and the contents of the confession appear to be least truthful rather made up and unbelievable. No credibility could be attached to confessions made by appellants, hence implicating co-accused was of no legal effect.
14. Iqbal Masih and another Vs.The State. (PLJ 2007 FSC 118, 2007 P.Cr.L.J.1375)
Present: Mr.Justice Haziqul Khairi, C.J. Mr.Justice Dr.Fida Muhammad Khan and Mr.Justice Muhammad Zafar Yasin, JJ.
S.12 Offence of Zina (EOH) Ordinance (VII of 1979) Ss.302 & 201 PPC (XLV of 1860)
Mr.Justice Dr.Fida Muhammad Khan, J.
S.12 PPC (XLV of 1860), Ss.302 & 201. Criminal Procedure Code, (V of 1898) S.382-A. Appreciation of evidence. Benefit of doubt. Deposition of complainant, had been supported by two prosecution witnesses. The witnesses had deposed about the extra-judicial confession made separately by accused persons in the presence of their father one after the other. One of accused specifically confessed that he had killed after committing sodomy with him. Accused repeatedly requested for getting pardon from the father of deceased. One of said prosecution witnesses was Lambardar of the village and enjoyed respectable position. Other one was a cultivator by profession. Prosecution had examined two other prosecution witnesses, who had last seen deceased being taken away by accused inside his house. Both prosecution witnesses were consistent in their statements; however, their statements did not inspire confidence for the reason that they had seen accused taking away deceased, but never informed complainant for several days, despite the fact that they being relatives of deceased were worriedly searching deceased. Recovery of clothes and shoes on pointation of accused did not inspire confidence as it appeared unnatural on the part of accused to have kept Chadar and shoes of deceased in his house after committing his murder. Such recovery was effected 15 days after occurrence. Accused had ample time at his disposal to destroy same. Case of prosecution against accused was doubtful and as such he was entitled to get the benefit of said doubt. Quality of evidence brought by the prosecution, was not sufficient to sustain charge against accused for such a heinous offence. Conviction and sentence awarded to accused by trial Court were set aside extending him benefit of doubt and he was acquitted of the charges and was released from jail.