Miscellaneous

VOLUME-V

Pages 1914-2596

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 1914
Nasrullah --- Petitioner

Versus
The State --- Respondents
JUDGMENT
Cr. Misc: (BA) No. 590/2000 Date of hearing 02/10/2000
(2002 UC 330)

EJAZ AFZAL KHAN,J.--, J.- This Full Bench has been

constituted to examine whether the provisions contained in
sections-21 and 22 of the Control of Narcotic Substances Act of
1997, hereinafter called, the Act are directory or mandatory and if
any of the acts mentioned therein is done in violation of these
provisions what would be the effect thereof on the case as a whole?

2. The circumstances, necessitating the

examination of this aspect of the above-mentioned
provisions of the Act are that one Nasrullah hereinafter
called, petitioner, on having been found in possession of
7, 8, 9 of the Act was registered against him vide FIR
No.49, dated 22.1.2000 in the Police Station Baddaber,
when failed to get the concession of bail from the Judge
Special Court, moved this Court for his enlargement on
bail.
3. The petition was heard by His Lordship Mr. Justice Tariq
Parvez. The concession of bail before his Lordship was mainly
sought on the ground of violation of the provisions of sections 21
and 22 of the Act on the strength of the judgments of this Court
which were authored by my Lord the Chief Justice in Cr.Misc:
No.646 of 2000 (Gulyar Khan V. The State ) decided on
19.7.2000, Cr. Misc: No.767 of 2000 (Saleem V. The State) on
18.7.2000 and another judgment of his Lordship, as he then was,
Mr. Justice Jawaid Nawaz Khan Gandapur in Muhammad Ikram
V. The State (2000 P.Cr.L.J. 891).

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4. During the course of arguments yet another judgment of an

Hon’ble Division Bench of this Court delivered in the case of
Qeemdi Hassan V. The State (1999 P.Cr.L.J. 824) was brought to
the notice of his Lordship in which a view contrary to the view
expressed n the judgments of the aforesaid three Cr.Misc:
petitions, was taken whereby the Hon’ble Bench after holding the
provisions of sections 21 and 22 of the Act to be directory, refused
to grant bail, so his Lordship Mr. Justice Tariq Pervez, in view of
these conflicting judgments made a reference to the Hon’ble Chief
Justice who after considering the matter constituted a Full Bench to
hear this case in order to settle the controversy once for all with
regard to the application of sections 21 and 22 of the Act.

5. The learned counsel for the petitioner Mr. Khushdil Khan,

Advocate while appearing before the Full Bench contended that an
A.S.I. is not an authorized officer within the terms of sections-21
and 22 of the Act, therefore, the arrest and seizure so made by him
are illegal and of no consequence. He by reading out sections 21
and 22 of the Act contended that they are mandatory in nature and
neglect to comply therewith would invalidate and vitiate the entire
proceedings. He, next contended that it is well-established
principle of law that where a Statute requires a thing to be done in
a particular manner that has to be done in that way or not at all. In
order to add strength to his aforesaid argument he placed reliance
on the case of Khalid Nawaz V The State (1998 P.Cr.L.J. 2008).
The learned counsel while dilating upon the mandatory nature of
the provisions of the Act also placed reliance on a recent judgment
of the Hon’ble Supreme Court in the case of Muhammad Afzal V.
The State (P.L.D 2000 S.C. 816) wherein it was held that where
C.I.A. personnel despite knowing that they were not empowered to
investigate the case had done so was clear violation of law and was
also against the principle of supremacy of law.

6. On the other hand, learned Addl: Advocate General Mr.

Imtiaz Ali, submitted tht the provisions of sections 21 and 22 of
the Act are directory and not mandatory in nature as no
consequence of neglect to comply therewith has been mentioned in

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the Statute. By placing reliance on the judgment of the Hon’ble
Supreme Court in the case of State through Advocate General
Sindh V. Bashir and others (PLD 1997 S.C. 408), he submitted that
if an officer other than the one authorized by the Statute has made
entry, search, seizure and arrest in a case, this will not affect the
validity of the investigation and if, he supplemented his argument,
a case some how or the other has been investigated by an officer
not so authorized by the Act, in that case the panacea provided by
section 156 of the Cr.P.C. can be brought to the rescue of such
investigation. The learned Addl:. Advocate General at the end by
affirming the directory nature of the provisions of the Act also
placed reliance on a Division Bench judgment of the Lahore High
Court in the case of Muhammad Ramzan V. Muhammad Iqbal
Sub-Inspector of Police, Distt: Kehari Mitroo and another (1998
P.Cr.L.J. 828) wherein the Hon’ble High Court declined to quash
the proceedings on the ground of violation of sections-21 and 22 of
the Act.

7. We have carefully considered the arguments of the learned

counsel for the parties and the case law so produced by them.
Before we express our opinion on either of the sides, we think it
proper to examine all the provisions of the Act in order to know its
scheme and legislative intent behind it. A bare reading of the Act
from preamble to the end would show that the raison deter for
legislating this law was to consolidate and amend the laws relating
to drugs and the legislature while enacting this law was fully alive
fo the other laws and the loopholes therein, that is why the process
of consolidating and amending them was embarked upon. If on the
one hand, it provided, like all other laws, for the punishment of
offenders, it also on the other hand, provided to regulate the
treatment and rehabilitation of addicts and formatters connected
therewith and incidental thereto. In short, it can be seen that an
e4xhaustive effort was made to cover every conceivable aspect of
the phenomenon that plagued our society ever since 1979. It is
pertinent to note that people who made fortune or piles of money
out of this business were not allowed to go scot free whether at
national or international level and on all fronts an effective and
orchestrated endeavour was made to deal with them from the

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origin to the ultimate end of the crime. The provisions contained in
Chapters IV, VII and VIII are clear examples in this behalf. It is to
be seen as to what was the intention of the legislature vis-à-vis the
provisions of the Act which was so perfectly enacted with an all
encompassing legislative wisdom. Before we discuss this aspect of
the act and answer the reference, it is worth-while to see what is
the test to determine as to the directory or mandatory nature of a
provision of law.

In Corpus juris Secundum Vol. 82 Statute at Page 869 the

learned author has dealt with this aspect of Statute as under:-

“While there is no absolute test by which it may be

determined whether a statue is mandatory or directory the primary
rule is to ascertain the legislative intent as revealed by an
examination of the whole act.”

In Halsbury’s Laws of England, the learned author has

expressed as follows:-

“No universal rule can be laid down for determination

whether the provisions are mandatory or directory in each case,
intention of the legislature must be ascertained by looking at the
whole scope of the Statute and, in particular, at the importance of
the provisions in question in relation to the general object to be
secured.”

In Liverpool Borough Bank V. Turner (1861) 30 LJ Ch

379, at P.380 Lord Penzance observed as follows:--

“No universal rule can be laid down as to whether a

mandatory enactment shall be construed directory only or
obligatory on an implied nullification for disobedience. It is the
duty of the Courts of justice to try to get the real intention of the
legislature by carefully attending to the whole scope of the Statute
to be construed.”

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8. From the above-quoted passages it is quite clear that no
rule of universal application can be laid down. However, a duty is
always cast on the Courts to carefully attend to the whole scope fo
the statute to be construed to determine whether the provisions
thereof are mandatory or otherwise.

9. In another case of Howard v. Bodington (1877) 2 PD 203,

at P.211 Lord. Penzance supported this view in the dictum that still
holds true:--

“I believe, as far as any rule is concerned, you cannot

safely go further than that in each case you must look to the
subject-matter consider the importance of the provision that has
been disregarded, and the relation of that provision to the
general object intended to be secured by the Act; and upon a
review of the case in that aspect decide whether the matter is
what is called imperative or only directory. I have been very
carefully through all the principal cases, but upon reading them
all the conclusion at which I am constrained to arrive in perusal
of these cases. They are on all sorts of subjects. It is very
difficult to group together and the tendency of my mind, after
reading them, is to come to the conclusion which was
expressed by Lord Campbell in the case of Liverpool Bank V.
Turner.”
10. After quoting some of the above-mentioned passages the
Hon’ble Supreme Court in one of the judgment rendered in the
case of Atta Muhammad Qureshi V. Settlement Commissioner
(P.L.D. 1971 S.C. 61) observed as under:-

“One other principle which has been enunciated in

this behalf is that as a general rule, statutes, which enable
person to take legal proceedings under certain specified
circumstances, demand that those circumstances must be
accurately obeyed, notwithstanding the fact that the
provisions thereof are expressed in merely affirmative
language. At page-226 of Craies on Statutory Laws, 6th
Edition, this rule is stated thus:--

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 1919
“That when a statute confers jurisdiction upon a
Tribunal of limited authority and statutory origin, the
conditions and qualifications annexed to the grant must be
strictly applied.”
Bearing these principles in mind, I have reached the
conclusion that sub-clause (5) of section 20 of the Act is
mandatory is character and places a limitation on the
jurisdiction of the revising authority not to make any adverse
order against a person without giving him opportunity to show-
cause against it. If such an order is made without fulfillment of
this pre-requisite, it would certainly lack jurisdiction.”

11. The above-cited paragraphs from the celebrated and

classical works of law and the judgment of the Hon’ble Supreme
Court make it crystal clear that it is always for the Court to
ascertain the legislative intent by examining the whole Act. While
proceeding to examine the Act for ascertaining the nature of its
provisions, sections 20, 21, 22 and 26 merit a careful reading
which are reproduced as follows:-

Section-20. Power to issue warrants:

(1) A Special Court may issue a warrant for the arrest
of any person whom it has reason to believe to have
committed an offence punishable under this Act, or
for the search whether by day or by night of any
building, place, premises or conveyance in which he
has reason to believe any narcotic drug,
psychotropic substance, controlled substance in
respect of which an offence punishable under this
Act has been committed is kept or concealed.
(2) The officer to whom a search warrant under sub-
section (1) is addressed shall have all the powers of
an officer acting under section-21.
Section-21: Power of entry, search, seizure and arrest
without warrant.

(1) Where an officer, not below the rank of Sub-

Inspector of Police or equivalent authorized

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 1920
in this behalf by the Federal Government or
the Provincial Government, who from his
personal knowledge or from information
given to him by any person is of opinion that
any narcotic drug, psychotropic substance or
controlled substance in respect of which an
offence punishable under this Act has been
committed is kept or concealed in any
building, place, premises or conveyance and
a warrant for arrest or search cannot be
obtained against such person without
affording him an opportunity for the
concealment of evidence or facility for his
escape, such officer may:-
(a) enter into any such building, place,
premises or conveyance;
(b) break open any door and remove any
other obstacle to such entry in case
of resistance;
(c) seize such narcotic drugs,
psychotropic substance and
controlled substance and other
material used in the manufacture
thereof and any other article which
he has reason to believe to be liable
to confiscation under this Act and
any document or other article which
he has reason to believe may furnish
evidence of the commission of an
offence punishable under this Act;
and
(d) detain, search and if he thinks
proper, arrest any person whom he
has reason to believe to have
committed an offence punishable
under this Act.
(2) Before or immediately after taking any
action under sub-section (1), the officer

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referred to in that sub-section shall record
the grounds and basis of his information and
proposed action and forthwith send a copy
thereof to his immediate superior officer.
Section 22: Power to seizure and arrest in public
places:-

An officer authorized under section 21 may:--

(a) seize, in any public place or in transit any
narcotic, drug, psychotropic substance or
controlled substance in respect of which he
has reason to believe that an offence
punishable under this Act has been
committed and alongwith such drug
substance or any other article liable to
confiscation under this Act and any
document or other article which he has
reason to believe may furnish evidence of
the commission of an offence punishable
under this Act: and
(b) detain and search any person whom he has
reason to believe to have committed an
offence punishable under this Act, and if
such person has any narcotic drug
psychotropic substance or controlled
substance in his possession and such
possession appears to him to be unlawful,
arrest him.

Section 26: Punishment for vexatious entry, search,

seizure or arrest:--
Any person empowered under section 20 or section
21 who:--
(a) without reasonable grounds of suspicion,
enters or searches or causes to be entered or
searched any building, place premises or
conveyance:

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 1922
(b) vexatiously and unnecessarily seizes the
property of any person on the pretence of
seizing or searching for any narcotic drug,
psychotropic substance, controlled substance
or any other article or document relating to
any offence under this Act: and
(c) vexatiously and unnecessarily detains,
searches or arrests any person:
shall be punished with imprisonment for a term
which may extend to three years and shall also be
liable to fine which may extend to twenty-five
thousand rupees.

12. A perusal of section 20 (2) reveals that the Special Court

issuing the warrant is supposed to ensure that the officer to whom a
search warrant under sub-section (1) is addressed shall have the
power of an officer acting under section 21. A keen look at
sections-21 and 22 would unmistakably indicate that the makers of
the law never intended that an action under the provisions of
sections 21 and 22 should be taken by an officer below the rank of
Sub-Inspector of Police or equivalent. It is to be noted that a Sub-
Inspector by virtue of his office alone is not competent to proceed
under the above provisions unless he is authorized in this behalf by
the Federal or Provincial Government. The law-makers, it would
thus be seen, by visualizing certain situations dispense with
warrant for arrest or search when obtaining thereof would afford a
person an opportunity for the concealment of evidence or facility
of his escape but under no circumstances permitted any officer
below the rank of Sub-Inspector of Police to do any of the acts
mentioned in sections-21 and 22. A perusal of section 26 will leave
absolutely no manner of doubt about the mandatory nature of the
provisions of the Act because according thereto even vexatious
entries, searches seizures or arrests could never be conceived by
the legislature to be made by an officer not empowered and
authorized under sections 20 and 21.

13. The arguments of the learned Addl. Advocate General that

where the consequence of neglect to comply with the provisions is
not mentioned in the Statute, it shall be deemed to be directory is devoid of force in view

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 1923
of the paragraphs quoted above. The other argument of the learned Addl. Advocate
General that if an officer not empowered or authorized has made entry, search, seizure or
arrest, it can be regularized by invoking the provisions of section 156 (2) of the Cr.P.C. is
equally devoid of force in view of the provisions of section 25 of the Act because the
provisions of the Cr.P.C. would apply only if the acts done by the Police Officer are not
inconsistent with the provisions of sections-20, 21 22 and 23 of the Act. Section25 thus
runs as under:--

“The provisions of the Code of Criminal Procedure, 1898, except those of

section 103, shall, mutates mutandis, apply to all searches and arrest insofar as they are
not inconsistent with the provisions of sections 20, 21, 22 and 23 to all warrants
issued and arrest and searches made under these sections.”

14. When seen in this context the case of State through Advocate General Sindh V.
Bashir and others (supra) seems to have no perceptible relevance or application to the
case inhand. Moreover, in the case of Muhammad Afzal V. The State ibid the Hon’ble
Supreme Court has now taken quite a different view. The relevant paragraph is
reproduced as below:-

“8. The record reveals that though C.I.A. personnel knew it very well that they
were not empowered to investigate this matter, yet, they had done so and in this way
deliberately violated the provisions of section 156, Cr.P.C. Although they had prior
information about the offence which was likely to be committed, yet, they had not passed
on this information to the concerned police and took upon themselves the task of
investigation which, we feel, was not proper. What they had done was in
violation of law and was also against the principle of supremacy of law.”

15. A reference to yet another provision of the Act contained in section 72 will not
be out of place which provides:--

“All prohibitions and restrictions imposed by or under this Act on the

import into, export from, Pakistan and transshipment of narcotic drugs
psychotropic substance or controlled substances shall be deemed to be
prohibitions and restrictions imposed by or under the Customs Act, 1969 (IV
of 1969) and the provisions of the Act shall apply accordingly:

Provided that notwithstanding anything contained in the Custom Act,

1969 (IV of 1969) or any other law for time being in force, all offences
relating to narcotic drugs, psychotropic substances or controlled substances
shall be tried under the provisions of this Act:

Provided further that where the Officers of Customs apprehends a person

involved in any offence relating to narcotic drugs, psychotropic substances or
controlled substance shall be empowered to carry out inquiry and investigation in
the same manner as an officer authorized under this Act.”

A fleeting glance of this section would make it clearer still that every
conceivable eventuality was all along in the mind of the legislature that is why even the
Customs Officers were empowered to carry out the inquiry and investigation in the same
manner as an authorized Officer under the Act, thus this too leaves no room for an officer

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below the rank of Sub-Inspector to figure anywhere in the scheme of this Act. It would,
therefore, follow that the officers below the rank of S.I. are just non-entity for the
purposes of this Act who can never be made entity by having recourse to the
interpretative niceties. The provision contained in section 21 of the Act satisfies still
another test recognized by another authoritative work known as Craise on Statute Law
which reads as under:---

“If the requirements of a statute which prescribes the manner in which

something is to be done are expressed in negative language, that is to say, if the
statute enacts that it shall be done in such a manner and in no other manner, it
has been laid down that those requirements are in all cases absolute, and that
neglect to attend to them will invalidate the whole proceeding.”

When this section is read in the light of this test, it seems and sounds mandatory
inasmuch as it is couched in negative language as the expression Sub-Inspector is
preceded by the words “not below the rank of”, The passage reproduced above was
referred with approval in a judgment of the Hon’ble Supreme Court in the case of
Muhammad Aslam v. The State (1991 SCMR 599). Above all else it is by now axiomatic
that where a thing is provided to be done in a particular manner it has to be done in that
way or not at all. In this connection a reference to the case of Khalid Nawaz V. The State
ibid in which the provisions contained in section 21 and 22 of the Act alone were subject-
matter of focus, would be quite useful. The relevant paragraph of the same is reproduced
as under:--

“5 We have heard the learned counsel for Khalid Nawaz appellant as

well as the learned State counsel and gone through the record before us.
Learned counsel for the appellant has referred to sections 21 and 22 of the
Control of Narcotic Substances Ordinance, VI of 1995 applicable on the
relevant date of recovery (26.8.1995) and argued that an officer not below the
rank of Sub-Inspector of Police could not seize drugs etc and also could not
detain or search any person whom he had reason to believe to have committed
an offence punishable under the Ordinance who was not competent to arrest
him. As against the aforesaid provisions of law learned counsel for the State
could not bring to our notice any codified law. A perusal of section 22 of the
Control of Narcotic Substances Ordinance, VI of 1995 when read in the light of
Article 21 of the same Ordinance has made us to hold that Muhammad Bashir,
A.S.I. was not competent and having authority to detain, search and arrest
Khalid Nawaz appellant for the recovery of the narcotics. We express the view
that the power and authority to set the law in motion is linked with the
substantive jurisdiction without which the proceedings could not be initiated
and consequently could processed with by Muhammad Bashir, A.S.I. It would
also be proper to refer the maxim:--

A Communi observationtia non est recedendum.. Where a thing was

provided to be done in a particular manner, it had to be done in that manner and
if not so done, the same would not be lawful.

If the working of Muhammad Bashir, A.S.I. is affirmed there would be

administrative chaos resulting in the judicial anarchy. This is the crux of the matter to
make us pass the order of exoneration of Khalid Nawaz appellant.”

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 1925
16. As a sequel to what has been discussed above, we have no hesitation to hold
that the provisions of the Act are mandatory and observance thereof would be imperative
to the validity of entry, search, seizure and arrest and non-compliance therewith would
invalidate the whole action from the inception to the end.

17. Now comes the application for bail. From the data so far available on the
record though the recovery of seven K.Gs. of charas from possession of the petitioner has
not been convincingly disputed, nonetheless, in view of the violation of the mandatory
provisions of the Act, we have no alternative but to accept this application and direct the
release of the petitioner on bail provided a bond in the sum of Rs.4,00,000/- (Rs. Four
lacs) with two local, reliable and resourceful sureties is furnished to the satisfaction of
the learned Special Judge concerned.
KHALIDA RACHID, J, --- I have the honour to go through the judgment of my
learned brother Mr. Justice Ejaz Afzal Khan. I candidly AGREE with the valuable
views of my learned brother Mr. Justice Ejaz Afzal, I have no qualm with the
mandatory aspect of the law. I understand the intention of the law-maker on the
subject. In the case of Qimat Hasan vs State (1999 P.Cr.L.J. 824) wherein a huge
quantity of narcotics was involved, was not strenuously argued by the learned
counsel and no able assistance was extended. I am personally of the view that the
drug traffickers should be dealt with strictly and should not be allowed to take
advantage of the loop-holes of the law, because they are a group of extreme
flagitious and immoral people of the society and they manage to succeed by hook &
crook in getting benefits of aperture in the law. After escaping from the hands of the
law, keep on indulging in the ugly business which is extermination the people of
our society like termites. In such an event when credibility of the country has
suffered a lot in the International Community. Pakistan has been literally isolated
from the comity of civilized Nations.
2. While dealing such cases in the Court, a Judge always desires to do justice
with the parties, society and humanity at large in accordance with law and would
also like to take into consideration the enquiry aspect too--
3. Under section 103. Cr.P.C. which is undoubtedly, a mandatory provision
and it is obligatory on the officer to execute a search warrant by associating two or
more respectable inhabitants to witness the search, but there are cases where the
police officers, for certain reasons are unable to procure search association of the
witnesses, may be due to fear of the accused person or avoid the enmity are relieved
of such obligations by the Superior Courts and apex Court. There are extraneous
circumstances where police witnesses are considered as good as private witnesses.
4. No doubt, law-makers by introducing the restriction of Sub-Inspector
meant to get the senior members of police force involved for fair and transparent
investigation. But it has been observed that in such like cases police force is least
concerned about the sanctity of the law and leaves loop-holes to distort the case.
Therefore, directions be issued to Inspector General of Police that no police officer
below the rant of Sub-Inspector be allowed to investigate in such like cases. Any
deviation to the law should in future be considered as the non-compliance of the
orders of the Courts.
SARDAR MUHAMMAD RAZA, CJ,-- I have gone through the learned discourse
rendered by my brother Hon’ble Mr. Justice Ejaz Afzal Khan and I fully agree with
him, as I had already given numerous judgments holding the same view in the light
of which this larger Bench needed to be constituted.

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 1926
2. I would only add to the leading judgment saying that the Control of
Narcotics Substances act is a stringent law, so far as the rights of accused are
concerned. Various deviations from the normal law have frequently occurred and it
is quite harsh even against the concession of bail. In the wake of this background,
certain restrictions or limitations have been placed on the Prosecution and
Investigating Agencies. This is an effort to strike a balance between the accused and
the prosecution. In these circumstances the superior Courts have always maintained
such balance and have avoided to give latitude to the prosecution by holding from
time to time that in such like laws with harsh provisions against the accused, the
limitations placed on the Investigating Agencies and Prosecution Agencies must be
strictly complied with. This is another reason that we hold that the provisions of the
sections of law in question are mandatory and not directory. Bail Granted.

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 1927
ABDUL HAMID---Petitioner

Versus

THE STATE---Respondent

JUDGMENT
Cr.M No.213 of 2001 Decided on 30th August, 2001
(2002 P Cr. L J 666 Peshawar)

Criminal Procedure Code (V of 1898)---

Ejaz Afzal Khan, J ---S. 516-A---Control of Narcotic

Substances Act (XXV of 1997), Ss.6, 7, 8, 9, 74 &
32---Prohibition (Enforcement of Hadd) Order (4 of 1979),
Arts.3/4---Custody of the vehicle---Record did not show that the
vehicle in question was used in the commission of the crime with
the knowledge of the petitioner who claimed to be its
owner---Section 74 of the Control of Narcotic Substances Act,
1997, no doubt prohibited the grant of custody of a vehicle used in
the import, export or transportation of narcotic substance to the
accused or any of his associates or relatives or any private
individual till the conclusion of the case, but this provision by no
canons of interpretation could be extended to cover an owner who
had no hand or involvement in the crime, as it could not be
construed independently of the provisions of S.32 of the said Act
which had protected the right of the owner who had no conscious
hand in the commission of the offence---Retention of the vehicle in
police custody for an indefinite period could also serve no useful
purpose---Documents placed on the file, prima facie, indicated the
petitioner to be the owner of the vehicle in question at least in the
absence of any rival claimant--Police was directed to hand over the
custody of the vehicle to the petitioner in circumstances.

Nek Nawaz Khan for Petitioner.

Abdul Karim Khan for the State.
Date of hearing: 30th August, 2001.

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 1928

JUDGMENT

The petitioner herein whose vehicle has been used in the

commission of a crime registered under sections, 6, 7, 8 and 9 of
the Control of Narcotic Substances Act, 1997 read with Articles
3/4 of the Prohibition. (Enforcement of Hadd) Order, 1979, vide.
F. I. R. No. 112, dated 4-5-2001, Police Station Ghombat, District
Kohat, when failed to get the custody of the vehicle bearing
Registration No.RIF-8278 from the lower forums, moved this
Court for the same.

2. It was mainly argued by the learned counsel for the petitioner

that there is absolutely nothing on the record to show that the
vehicle in question has been used in the commission of the crime
with the knowledge of the petitioner; that he is an owner of the
vehicle; and that in the absence of any rival claimant he is entitled
to the custody of the same.

3. The learned State counsel while appearing on behalf of the State

contended that any' vehicle or conveyance used in the commission
of the crime under the Control of Narcotic Substances Act, 1997 is
liable to confiscation provided it is proved that owner thereof knew
that the vehicle was used for carrying the psychotropic substance.

4. A perusal of the record would indicate that so far there is

nothing thereon to show that the vehicle was used in the
commission of the crime with the knowledge of the petitioner. 'No
doubt section 74 of the Act prohibits the grant of custody of a
vehicle used in the import, export or transportation of narcotic
substance to the accused or any of his associates or relatives or any
private individual till the conclusion of the case but the application
of this provision by no canons of interpretation can be extended to
cover an owner who has no hand or involvement it the crime, as it
cannot be construed independently of the provisions contained in
section 32 of the Act which protects the right of the owner who has
no conscious hand in the commission of the crime.

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 1929
5. Apart from this, retention of vehicle in police custody for an
indefinite period would also serve tics useful purpose.

6. A perusal of the documents placed on the file would prima-facie

show the petitioner to be the owner of the vehicle in question at
least in IC the absence of any rival claimant.

7. As a sequel to the foregoing discussion, this petition is allowed I

and the local police is directed to hand over the custody of the
vehicle to the petitioner, if he furnishes a bail bond in the sum of
Rs.1,65,0001D (Rupees one lac and sixty five thousand) with two
sureties each in the like amount to the satisfaction of the learned
Special Court who is to ensure that the sureties are men of means.

8. However, this order will not prejudice the right of a rival

claimant, if any, with a better title.

N.H.Q./428/P
Petition allowed.

Peshawar High Court

 1930

SHADI KHAN---Petitioner

Versus

THE STATE---Respondent

JUDGMENT
Cr.M No.893/2001 Decided on 30th August, 2001
(2002 P Cr. L J 147 Peshawar)

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

Ejaz Afzal Khan, J ----S. 497---Surrender of Illicit Arms

Act (XXI of 1991), S.7---Bail--Nothing was available on record
showing previous conviction of the accused or any other
antecedents calling for ~ the award of maximum 'punishment---
Case of accused, therefore, could not be held to be one falling
within the ambit of the prohibitory clause of S.497(1), Cr.P.C.,
because according to the Statute itself the quantum of
imprisonment was to be regulated by the antecedents of the
accused---Court while considering the bail application was not
supposed to keep in view the maximum punishment provided by
law but the one likely to be entailed by the facts and circumstances
of the case---Bail was allowed to accused in circumstances.

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

---S. 497---Bail---Principle---While considering an application for

bail, the Courts are not supposed to keep in view the maximum
sentence provided by the relevant law but the one likely to be
entailed by the facts and circumstances of the case.

Abdul Fayaz Khan for Petitioner.

Abdul Karim Khan for the State.
Date of hearing: 30th August, 2001.

Peshawar High Court

 1931

JUDGMENT

The petitioner herein who is charged in a case registered against

him under section 7 of the Surrender of Illicit Arms Act, 1991,
vide F.I.R. No.333, dated 6-7-2001, Police Station Thall, District
Kohat, when failed to get the concession of bail from the Courts
below moved this Court for his being released on bail.

2. The only point urged by the learned counsel for the petitioner at
the Bar is that though the offence the petitioner is charged with is
punishable with imprisonment for a term which may extend to 14
years but while awarding punishment of imprisonment regard is to
be had to the antecedents of the accused; and that in the absence of
any material on the record suggesting previous conviction or any
other antecedents calling for the award of extreme penalty
provided by the Statute, the petitioner cannot be sentenced to
imprisonment as stated above.

3. The learned State Counsel while controverting the submissions

made by the learned counsel for the petitioner, contended that once
a dead line was announced and fixed by the Government for the
surrender of illicit arms and the same was not responded to, the
petitioner does not deserve to be released on bail.

4. I have heard the learned counsel for the parties pro an.: contra
and perused the record. Since there is absolutely nothing on the
record showing previous conviction of the petitioner or any other
antecedents calling for the award of maximum punishment, I think,
the case of the petitioner cannot be held to be the one falling within
the ambit of prohibitory clause of section 497, Cr.P.C. because the
Statute itself provides that the quantum of imprisonment is to be
regulated by- the antecedents of the accused. Apart from this,
while considering an application for bail, the Courts are not
supposed to keep in view the maximum sentence provided by the
relevant law but the one likely to be entailed by the facts and
circumstances of the case.

Peshawar High Court

 1932
5. For the foregoing reasons, this petition for bail is allowed and
the petitioner is directed to be released on bail, provided, he
furnishes bail bond in the sum of Rs.2,00,000 (Rs. two lacs) with
two sureties each in the like amount to the satisfaction of the Illaqa
Judicial Magistrate who is to ensure that the sureties are local,
reliable and men of means.

N.H.Q./344/P
Bail allowed.

Peshawar High Court

 1933
Syed SAADAT HUSSAIN SHAH---Petitioner

versus

THE STATE and another---Respondents

JUDGMENT

Cr.M Nos.184
and 167/2001 Decided on 14th November, 2001
(2002 P Cr. L J 535 Peshawar)
Criminal Procedure-Code (V of 1898)---
Qazi Ehsanullah Qureshi and Ejaz Afzal Khan, JJ ----S.
497---Penal Code (XLV of 1860), S.302/34---Suppression of
Terrorist Activities (Special Courts) Act (XV of 1975), Ss.4 & 5-
A(8)---Qanun-e-Shahadat (10 of 1984), Art.38---Bail, grant of---
Prosecution witness who made charge against the accused after
lapse of one month and eight days, subsequently had resiled
therefrom by swearing on an affidavit---Such statement of said
witness, thus had no value---Whether discovery of the jeep,
motorcycle and cycle at the instance of the accused, could
reasonably lead to hypothesis of their alleged guilt and whether the
statements of accused made in the presence of the police could
change their character and would take them outside the scope of
Art.38 of Qanun-e-Shahadat, 1984 simply because the making
thereof was snapped through movie camera, were the questions
which necessitated further enquiry which had made out a case for
grant of bail to the accused.

Amjad Zia and Sanaullah Khan Gandapur for Petitioner (in

Criminal Miscellaneous No. 167 of 2001).
Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.
Saleemullah Ramazai for the Complainant (Respondent No.2).
Dost Muhammad Khan for Petitioner (in Criminal Miscellaneous
No.184 of 2001).
Date of hearing: 14th November, 2001

Peshawar High Court

 1934

JUDGMENT

EJAZ AFZAL KHAN, J.--- Syed Saadat Hussain Shah, petitioner

in Criminal Miscellaneous No.167 of 2001 and Syed Ahsan Haider
Shah, petitioner in Criminal Miscellaneous No.184 of 2001, who
are charged in a case registered under sections 302/34, P.P.C. read
with 4 S.T.A. vide F.I.R. No.324, dated 7-5-2001, Police Station
Cantt. D.I. Khan when failed to get the concession of bail from the
lower forum moved this Court for their being released on bail.

2. As both the applications arise out of the same F.I.R. and the
same order, we propose to dispose them of through this single
order.

3. The facts stated in brief are that on the eventful day the deceased
Ejaz Ahmad Langaryal, S.P., D.I. Khan was on his usual evening
jogging track that he was fired at by some unidentified assailants
and thus done to death.

4. The police investigating the case despite hectic efforts remained

clueless but on 15-6-2001 one Muhammad Khalil was examined
under section 161 wherein he charged the petitioner for driving the
motorcycle and Shamim Abbas Nadir sitting on its back with
Kalashnikov for effectively firing at the deceased, while Ahsan
Haider was hauld up on the basis of suspicion and during the
course of police custody a jeep and motorcycle were recovered at
the instance of Saadat Hussain while a cycle was recovered at the
instance of Syed Ahsan Haider.

5. The learned counsel for the petitioner contended that besides the
police statement of the accused there is no other evidence as can
connect them with the crime; that charge against Saadat Hussain
has been made by P.W: Khalil after the lapse of one month and
eight days who subsequently resiled therefrom by swearing on an
affidavit; that Ahsan Haider has been hauld up only on the basis of
suspicion; that the accused-petitioners remained in police custody

Peshawar High Court

 1935
for several days but nothing incriminating came to the fore to
connect them with the crime; that the recoveries allegedly made at
their instance cannot reasonably lead to the hypothesis to their guilt
and that there are grounds for further enquiry as such they are
entitled to be released on bail.

6. The learned Deputy Advocate-General assisted by the learned

counsel for the complainant contended that the petitioner Saadat
Hussain has been directly charged by an eye-witness; that the
statements of the petitioners before the police and discoveries at
their instance which have also been snapped through a movie
camera are by all means sufficient to reasonably connect them with
the crime and that they do not deserve the concession of bail as
they are responsible for a brutal murder of a Senior Police Officer.

7. We have carefully analysed the submissions of the learned

counsel for the parties and have gone through the record with their
assistance.

8. What is the value of the statement of the eye-witness so-called

who remained silent for more than a month and after making it
again disowned its truth by swearing on an affidavit presented
today in the Court which was not convincingly disputed by the
counsel for the respondents. Likewise whether discovery of the
jeep, motorcycle and cycle at the instance of the petitioners can
reasonably lead to hypothesis of their alleged guilt and whether the
statements of the petitioners made in the immediate presence of the
police would change their character and would take them outside
the scope of Article 38 of the Qanun-e-Shahadat simply because
the making thereof was snapped through a movie camera are the
questions which necessitate further I enquiry and thus, make out a
case for grant of bail.

We, therefore, allow these petitions and direct the release of the
petitioners if they furnish bail bonds in the sum of Rupees ten lacs
each with two sureties each in the like amount to the satisfaction of
the learned Judge, Special Court who is to ensure that the sureties
are local, reliable and men of means. However, the State may, if so

Peshawar High Court

 1936
advised, move the Court for cancellation of bail after collecting
some material reasonably connecting them with the crime.

H.B.T./422/PBail granted.

Peshawar High Court

 1937
Fazal –ur-Rehman--- Petitioner

Versus

The State--- Respondents

JUDGMENT
Cr. Misc: (BA) No. 217 of 2001 Date of hearing 24/01/2002

EJAZ AFZAL KHAN,, J.- The petitioner who is charged

is a case registered against him under section 13, Arms Ordinance
read with section-7, Surrender of Illicit Arms Act, Sections 4/5,
Explosives Act and Section 20 of the Telegraph Act, vide F.I.R.
No.364 dated 15.10.2001, when failed to get the relief of bail
moved this Court therefor.

2. The facts as disclosed in the F.I.R. are that on the day of

occurrence the petitioner after alighting from a flying-coach
coming from Peshawar was carrying a bag in his hand that he was
searched by Muhammad Khan, Platoon Commander, post at
Ganddi Khankhel who found 57 folding iron butts of kalashinkov,
12 springs of airgun and various other spare parts of different arms
and as a result of that the case above-mentioned was registered
against him. On the following day while being in police custody he
led to the discovery of besides many other things, six hand grenade
and one kalashinkov of Russian origin.

3. The learned counsel for the petitioner while seeking bail for
the petitioner contended that the recovery of spare parts of
different weapons will not bring the case within the ambit of
section-13 of the Arms Ordinance; that the discovery so-called
from the house of the petitioner is note-worthy of reliance as it was
not witnessed by two respectable inhabitants of the locality; that no
opinion has so far been solicited from an amour expert, whether
the hand grenades are alive or otherwise and that even if the instant
case is considered to have been covered by the Explosive
Substances Act, which is not the case because the police has not

Peshawar High Court

 1938
applied any of those sections, no sanction for prosecution has been
obtained in accordance with the requirements of the Act, therefore,
the case becomes arguable for the purpose of bail.

4. The learned Deputy Advocate General strenuously resisted

the grant of bail to the petitioner by arguing that the petitioner is,
prima facie, connected with the crime which falls within the ambit
of prohibitory clause as such he is not entitled to be released on
bail.

5. The argument of the learned counsel for the petitioner that

two respectable inhabitants of the locality have not been associated
to witness the search and consequent recovery, therefore, no
reliance can be placed on that is without substance as it was held in
the case of Mir Muhammad v. The State (1995 SCMR 614) and
State v. Shankar (PLJ 1997 SC 678) that section 103 does not
apply to the recovery made in consequence of the information
given by the accused while being in custody.

6. However, we have not been able to understand why the

hand grenades have not so far been sent for the opinion of the
Arms Expert nd why the requisite sanction for the prosecution of
the petitioner has not been obtained even after the lapse of three
months. In the absence of any plausible explanation we are of the
firm view that the case becomes arguable for the purpose of bail.

These are the reasons for out short order dated 25.1.2002,
whereby we granted bail to the petitioner in this case.

Bail Granted.

Peshawar High Court

 1939
Islam-ud-Din --- Petitioner
Versus
1. The State…2. Saleem Khan --- Respondents
JUDGMENT
Cr. Misc: (BA) No. 257/2001 Date of hearing 20/02/2002
(2007 Cr.L.J 154)

EJAZ AFZAL KHAN, J.- A report by the complainant

Saleem Khan that his brother Arab Gul, deceased, as per
information conveyed by one Murad son of Aslam, has been shot
dead by the petitioner Islamuddin culminated in the registration of
the instant case under section 302/34, PPC vide F.I.R. No.13, dated
13.1.2001, PS Lakki Marwat.

2. The petitioner when failed to get the concession of bail

from the lower forums asked therefor by moving this Court.

3. The learned counsel appearing on behalf of the petitioner

contended that the petitioner has been charged on the basis of
suspicion and that there is no evidence worth the name which can
reasonably connect him with the crime and as such and in view of
his being below 12 years of age, he is entitled to be released on
bail.

4. As against that the learned Deputy Advocate General

assisted by the learned counsel for the complainant contended that
the petitioner has been directly charged in the F.I.R. for having
been last seen with the deceased which has further been
corroborated by the testimony of Murad who happens to be an eye-
witness of the incident.

5. I have gone through the record and carefully considered the

submissions of the learned counsel for the parties.

6. Whether the evidence of last seen coupled with the belated

ocular account furnished by the said Murad would be sufficient to

Peshawar High Court

 1940
connect the petitioner with the crime particularly when he did not
name the petitioner at the time when he conveyed the information
about the incident to the brother of the deceased and when the
deceased was last seen in the company of petitioner as well as his
co-accused Bey Nawaz who has since been released on bail are the
questions which require further enquiry, quite apart from the fact
that the petitioner is less than 12 years of age according to his
School Leaving Certificate.

For the reasons discussed above, this petition is allowed

and the petitioner is directed to be released on bail if he furnishes
bail bonds in the sum of Rs.3,00,000/- (Rupees three lacs) with two
sureties each in the like amount to the satisfaction of Judicial
Magistrate, Lakki Marwat who is to ensure that the sureties are
local, reliable and men of means. Bail Granted.

Peshawar High Court

 1941
FAYYAZ ALI KHAN----Petitioner

Versus

1. The State
2. FARID ULLAH KHAN----Respondents

JUDGMENT
Cr, M.B. No.216/2001 accepted on 21.2.2002
(2007 Cr.LJ 160)

(a) Criminal Procedure Code (V of 1898)

Ejaz Afzal Khan, J- S. 497 (1). Abscondence for more

than a year would not disentitle accused to bail when according to
circumstances of the case grounds for grant of bail have been made
qut as in such case ultimate conviction of accused would repair the
wrong caused by mistaken relief of bail. (P- 161, 162)

(b) Fugitive---

Fugitive from law looses his normal rights guaranteed by

procedural as well as substantive law notwithstanding merits of the
case. This principle undoubtedly is a valid argument in some of the
cases but it cannot be taken to an illogical and unworkable extreme
and applied indiscriminately to every case because abscondence at
most can be taken as corroborative and not substantive evidence of
the charge against accused. (P. 161)

Dost Muhammad Khan for petitioner.

Ghulum Hur Khan Baloch for State.
Nawab Zarin Khan for complainant.
Date of hearing: 4.2.2002

Peshawar High Court

 1942
JUDGMENT

EJAZ AFZAL KHAN, J.---The petitioner has been charged for

having held the deceased in his clasp when he was fired at by his
co-accused Ashfaq in a case registered against them under sections
302/324/24, PPC vide F.I.R. No.298, dated 4.6.2000, PS Cantt,
Bannu.

2. It was contended by the learned counsel for the petitioner

that the story of catching hold of the deceased by the petitioner
when the former was fired at by the principal accused is
unbelieveable on the face of it as no person would expose himself
to the risk of being hit by doing so.

3. The learned Deputy Advocate General assisted by the

learned counsel for the complainant contended that the petitioner
remained absconder for more than a year and this fact alone would
disentitle him to the concession of bail as a fugitive from law
looses some his normal rights guaranteed by procedural as well as
substantive law merits of the case notwithstanding.

4. I have gone through the record and carefully considered the

arguments of the learned counsel for the parties.

5. Whether the holding of the deceased by the petitioner in

this clasp was by any means necessary for the facilitation of the
crime when the former was being fired at and whether this story is
believable are the questions which require further enquiry.

6. The argument that a fugitive from law would looses his

normal rights guaranteed by procedural as well as substantive law
notwithstanding merits of the case, is undoubtedly a valid
argument in some of the cases, but it cannot be taken to an illogical
and unworkable extreme and applied indiscriminately to every case
because abscondance at the most can be taken as corroborative and
not evidence of the charge.

Peshawar High Court

 1943
7. There is no legal and moral justification to withhold the
concession of bail to the petitioner when otherwise according to
the circumstances of the case, a case for bail is made out, for
ultimate conviction, if any, would repair the wrong caused by
mistaken relief of bail but no satisfactory reparation can be offered
for an unjustified incarceration if the accused is to be acquitted
ultimately.

For the foregoing reasons, this petition is allowed and the

petitioner is directed to be released on bail if he furnishes bail
bonds in the sum of Rs.3,00,000/- with two sureties each in the like
amount to the satisfaction of Judicial Magistrate, Bannu who is to
ensure that the sureties are local, reliable and men of means.

Bail Granted.

Peshawar High Court

 1944
TAHIR WASEEM---Petitioner

Versus

THE STATE---Respondent

JUDGMENT

Cr. M (Bail) No.33/2002 Decided on 27.03.2002

(2003 P Cr. L J 914 Peshawar)

Criminal Procedure Code (V of 1898)---

Ejaz Afzal Khan, J ----S.497(2)---Penal Code (XLV of

1860), Ss.382/452/506---Bail, grant of---Further inquiry---Accused
was not named in the F.I.R. and description of accused as to his
height etc. did not tally with that of accused as given in the papers
of his arrest---In absence of any detail about the kind, weight and
other details of ornaments, it could not be said that ornaments sold
to goldsmith were stolen ornaments---Such questions requiring
further inquiry, accused was admitted to bail.

Shujaullah Khan Gandapur for Petitioner.

Shaukat Hayat Khan Khakwani, D.A.-G. for the State.
Minhajud Din Alvi for the Complainant.
Date of hearing: 19th March, 2002.

JUDGMENT

Petitioner Tahir Waseem who is charged in a case registered

against him under sections 382/452/506, P.P.C. vide F.I.R. No.460
dated 7-8-2000, Police Station Cantt., D.I. Khan when failed to get
the concession of bail from the lower forums asked therefor by
moving this Court.

Peshawar High Court

 1945
2. The learned counsel for the petitioner contended that the
petitioner has not been directly charged in the F.I.R.; that nothing
incriminating came forth to connect the petitioner with the crime,
notwithstanding the fact that he remained in police custody for a
good number of days and that the description as to height and
constitution of the culprit given in the F.I.R. does not tally with the
description of the petitioner given in his card of arrest as according
to the former he was tall with mediocre build up while according to
the latter he was of mediocre height and stout body.

3. The learned Deputy Advocate-General assisted by the learned

counsel for the complainant contended that the fact that the
petitioner while being in custody .led the police to the shops of
goldsmiths where he had sold the stolen ornaments, prima facie,
connects him with the crime particularly when the. goldsmiths by
admitting the purchase of the ornaments tendered an amount in
cash equivalent to the price of the ornaments to the police.

4. I have gone through the record and carefully considered the

arguments of the learned counsel for the parties.

5. How did the Investigating Agency come to know about the A

involvement of the petitioner in the crime when lie was not named
in the F.I.R and how the petitioner could be connected with the
crime he is charged with when the description of the culprit as to
height and constitution does not tally with that of the petitioner as
given in the card of his arrest and how in the absence of any detail
about the kind, weight and character of ornaments it could be said
that the ornaments sold to the goldsmiths were the stolen
ornaments are the questions which require further enquiry.

For the reasons discussed above, this petition is allowed and the
petitioner is directed to be released on bail if he furnishes bail bonds in
the sum of Rs.3,00,000 (Rupees three lacs), with two sureties each in the
like amount to the satisfaction of Judicial Magistrate, D.I. Khan who is to
ensure that the sureties are local, reliable and men of means.

H.B.T./718/P
Bail granted

Peshawar High Court

 1946
Khaista Rehman --- Appellant/Petitioner (s)
Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1094/2003 Date of hearing 01.02.2003

EJAZ AFZAL KHAN, J.- The petitioner through the

instant petition has questioned the order dated 22.9.2003 of the
learned Addl Sessions Judge whereby he confirmed the ad-interim
pre-arrest bail of the respondents in a case registered against them
under section 365 PPC. Vide FIR No.552 dated 13.7.2003, Police
Station Gul Bahar.

2. It was mainly argued by the learned counsel for the

petitioner that the learned Addl Sessions Judge has granted bail
without considering the mala fides, therefore, the order is bad in
law.

3. As against that, the learned counsel appearing on

behalf of the respondents contended that the parties are locked in
civil litigation with each other since long over a dispute on a
vehicle, therefore, the possibility of the charge being mala fide
cannot be ruled out. The learned counsel next contended that in the
absence of any allegation as to the mis-use of concession of bail,
the superior Courts very rarely step in to cancel the bail.

4. The learned D.A.G. appearing on behalf of the

State, however, supported the cancellation of bail but in a
lukewarm manner.

5. Since there is nothing on the record to show that the

respondents after having been released on bail mis-used the
concession of bail and there is also nothing in the impugned order
as could smack of perversity or arbitrariness, I do not feel inclined
to interfere therewith, moreso when the previous litigation between

Peshawar High Court

 1947
the parties over a vehicle is not disputed and the offences the
respondents are charged with do not attract the prohibitory clause.

6. For the reasons discussed above, this petition being

without substance is dismissed.

Dated 1.2.2003. JUDGE

Peshawar High Court

 1948
Abdul Wahid --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 168/2004 Date of hearing 01.02.2003

EJAZ AFZAL KHAN, J The petitioner in

Cr.Misc:No.168,169,170,171 and 172 of 2003 seeks cancellation
of bail granted to the respondents, vide order dated 22.2.2003 of
the learned Zila Qazi Shangla, whereby he confirmed the ad-
interim pre-arrest bail of respondents, Ali Haider, Muhammad
Amin, Muhammad Pervez, Liaqat Ali, Alamgir Mian and Nawab
Ali and granted the post arrest bail to respondents Mian Said
Rahim, Sher Bahadur, Mian Muhammad, Fazal Muhammad, Ali
Muhammad, Mian Said Usman, Sultan Malik, Fazal Naeem,
Amjad Ali and Muhammad Roshan, in a case registered against
them and others under sections 302/324/1148/149 PPC.,vide FIR
No.20 dated 19.1.2003 Police Station Saidu Sharif.

2. Since all these petitions arise out of the same order,

they are disposed of by this single judgment.

3. It was mainly argued by the learned counsel for the

petitioner that the learned Zila Qazi confirmed the ad-interim pre-
arrest bail of the respondents mentioned above without attending to
the mala fides which is the first and foremost requirement for the
confirmation of pre-arrest bail. The learned counsel next contended
that even the other respondents should have not been granted post
arrest bail as they are prima facie linked with the offences
punishable with death or imprisonment for life.

4. As against that, the learned counsel appearing on

behalf of the respondents argued that all the casualties on the side
of the complainant including two deceased are the victim of their

Peshawar High Court

 1949
own aggression, therefore, the learned Zila Qazi, has rightly
extended the concession of pre-arrest as well as post arrest bail to
the respondents. The learned counsel next contended that the
version given by an injured P.W. in the cross-case, who by all
means, is an independent and dis-interested person gives lie to the
prosecution version as far as the presence of Ali Haider respondent
is concerned. The learned counsel next contended that in the
absence of any allegation as to the mis-use of the concession of
bail, no interference can be made with the impugned order
especially when it does not evince any artifice, perversity or
arbitrariness.

5. I have gone through the record carefully and

considered the submissions6. of the learned counsel for the parties.

6. The record reveals that the respondents proceeded

on the spot of occurrence alongwith a tractor to seize the
possession of the property occupied by the tenants. How and why
the complainant party felt offended when none of them happened
to be a tenant of the respondents? Why didn’t the tenant of the
property who according to the FIR is Azim Khan come forth to
support the prosecution version; why did the complainant and the
injured P.Ws. come on the forefront to resist the seizure of
possession and why should the deceased who were admittedly
wayfarers and had no axe to grind against the respondents be fired
at is a question which so far cannot be answered from the available
record, therefore, I will not like to interfere with the impugned
order inasmuch as it extended the concession of post arrest bail to
the respondents particularly when there is no allegation against
them as to the mis-use of concession of bail and there is nothing in
the impugned order evincing any perversity or arbitrariness.

7. As far as the case of the respondents whose ad-

interim pre-arrest bail has been confirmed, suffice it to say that in
the absence of anything on the record showing that they are going
to be arrested on account of mala fides, I do not think, they are
entitled to pre-arrest bail, therefore, I in the circumstances of the
case, would like to recall it.

Peshawar High Court

 1950

8. For the reasons discussed above, the petitions

against the respondents granted pre-arrest bail are allowed whereas
those in respect of the respondents granted post arrest bail are
dismissed. None of these observations will, in any way, have
bearing on the fate of an application of the respondents for post
arrest bail if and when moved.

Dated:1.2.2003. JUDGE

Peshawar High Court

 1951
____________________Appellant/Petitioner (s)

Versus
_______________________Respondent (s)

JUDGMENT
Cr.M. No. 83/2004 Date of hearing 05.03.2003

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and 3 others under sections 324/34
PPC., vide FIR No.484 dated 3.11.2003, Police Station Doaba,
seeks his release on bail mainly on the ground that for a single
injury as many as four persons have been charged and that in view
of the distance between the victim and the assailants it is yet to be
determined whether the petitioner intended to attempt at the life of
the victim.

2. As against that, the learned State counsel assisted

by the learned counsel for the complainant, argues that the bullet
marks present on the outer door of the house and recovery of a
good number of empties from the spot prima facie link the
petitioner with a crime falling within the ambit of prohibitory
clause, therefore, the petitioner does not deserve the concession of
bail.
3. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

4. In view of the nature of the injury present on the

person of the victim, distance between him and the assailants and
the fact that as many as four persons have been charged for a
single injury, a case for further inquiry is made out especially when
the effective fire has not been specifically attributed to any one of
them.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail ,

Peshawar High Court

 1952
provided, he furnishes bail bonds in the sum of Rs.1,00,000/-
(Rs.One lac) with two sureties each in the like amount to the
satisfaction of the Illaqa/Judl Magistrate who is to ensure that the
sureties are local, reliable and men of means.

Dated:5.3.2003. JUDGE

Peshawar High Court

 1953

JAMEEL KHAN----Petitioner

Versus

THE STATE-----Respondent

JUDGMENT
Cr.M No.44/2003 Decided on 28.02.2003
(2003 P Cr.L J 1139 Peshawar)

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

Ejaz Afzal Khan, J ----S.497---Control of Narcotic

Substances Act (XXV of 1997), Ss.6,7, 9 & 21---Bail, grant of---
Search and consequent recovery in case having been made in
contravention of provisions of S.21 of Control of Narcotic
Substances Act, 1997, such fact alone would entitle accused to be
released on bail.

Nasrullah v. The State PLD 2001 Pesh. 152 and Gharibullah v. The
State 2002 PCr.LJ 677 ref.

(b) Control of Narcotic Substances Act (XXV of 1997)---

----S.21---Contravention of provisions of S.21 of Control of

Narcotic Substances Act, 1997---Failure to conduct search in
compliance with the provisions of S.21 of Control of Narcotic
Substances Act, 1997, no doubt could result in release on bail and
later on acquittal of accused and thereby could defeat the very
purpose of the statute it was enacted for, but the Courts of law
were bound to implement the statute otherwise it would amount to
be more loyal than the king by importing what was not in the
statute---If any anomaly was created through its strict
interpretation the very purpose of the statute would be defeated---
Legislature though could well get it amended but so long as it was
a part of the statute, it had to be interpreted as it was.

Peshawar High Court

 1954
Bahlol Khattak for Petitioner.
Malik Akhtar Khan for the State.
Date of hearing: 28th February, 2003.

JUDGMENT

The petitioner who is charged in a case registered against him

under sections 6, 7 and 9 of the CNSA, 1997, vide F.T.R. No.665
dated 15-10-2002, Police Station Akora, when failed to get the
concession of bail from the lower forum asks therefor, by moving
this Court.

2. The learned counsel appearing on behalf of the petitioner

contended that the search and consequent recovery were made in
contravention of the provisions of section 21 of the CNSA,
therefore, this alone will entitle the petitioner to be released on
bail. The learned counsel to support his contention placed reliance
on the cases of Nasrullah v. The State PLD 2001 Pesh. 152 and
Gharibullah v. The State 2002 PCr.LJ 677.

3. The learned counsel appearing on behalf of the State by placing

reliance on the case of Mukhtar v. The State Criminal
Miscellaneous No.504 of 2002 contended that the search made in
contravention of the provisions contained in section 21 of the Act,
will not per se justify the grant of bail when the petitioner is prima
facie connected with the crime because such a strict interpretation
of the statute tends to defeat the very purpose it was enacted for.

4. I have gone through the record and carefully considered the

submissions of the learned counsel for the parties.

5. In the case of Nasrullah v. The State (supra) it was held by a

Full Bench of this Court that where a search and consequent
recovery were made m contravention of the provisions contained
in section 21 of the CNSA even though the recovery was not
convincingly disputed, the petitioner was entitled to be released on
bail, therefore, I do not feel persuaded to decline bail by striking a

Peshawar High Court

 1955
discordant note with it particularly when 1 myself was the author
of the judgment.

6. No doubt failure to conduct search in compliance with the

provisions of section 21 of the CNSA may result in release and
later on acquittal of the accused and thereby may defeat the very
purpose of the statute it was enacted for but the Courts of law are
bound to implement f the statute as it is without being more
royalist than the monarch by importing what is not in the statute. If
any anomaly is created through its strict interpretation or the very
purpose of the statute is defeated, the Legislature may well get it
amended. So long as it is a part of the statute, it has to be
interpreted as it is.

7. For the reasons discussed above, this petition is allowed and the
petitioner is directed to hoe released on bail, if he furnishes bail
bonds in the sum of Rs.3,00,000 (Rs. Three lacs) with two sureties
each in the like amount to the satisfaction of the learned trial Judge
who is to ensure that the sureties are local„ reliable and men of
means.

H.B.T./778/P
Bail granted.

Peshawar High Court

 1956

SHER KHAN and 2 others---Petitioners

Versus

THE STATE and another---Respondents

JUDGMENT
Cr.M.No. 66/2003 Decided on 17.03.2003
(2003 P Cr. L J 1149 Peshawar)

Criminal Procedure Code (V of 1898)---

Ejaz Afzal Khan, J ----S.497---Penal Code (XLV of

1860), Ss.324 & 34---Bail, grant of--Further inquiry---Three
persons had been charged for causing two injuries on the person of
the complainant---Whether it could be the doing of one person or
more than one; whose fire turned effective, if at all they were
present and whether they could be saddled with the intention to kill
the complainant when the injuries were not on the vital part of the
body, were the questions which essentially required further inquiry
particularly when the probability of false implication in view of the
tendency of the people to throw wide net of implication to rope, in
even those who had no Land in the commission of the crime, could
not be, ruled out---Accused were directed to be released on bail in
circumstances.

Suhail Akhtar for Petitioners.

Abdul Karim for the State.

Zar Muhammad Afridi for the Complainant.

Date of hearing :17th March 2003

Peshawar High Court

 1957
JUDGMENT

The petitioners who are charged in a case registered against them

under sections 324/34, P.P.C. vide F. I. R. No.-685 dated 6-8-2002,
Police Station, Hangu, seek their release on bail mainly on the
ground that for two injuries, as many as three persons have been
charged without specifying as, to whose fire turned effective.

2. The learned counsel for the State assisted by the learned counsel
or the complainant oppose the grant of bail, on the ground that the
petitioners being directly charged are not entitled to be released on
bail especially when they became fugitive from law after the
commission of the crime.

3. I have gone through the record and carefully considered' the

submissions of the learned counsel for the parties.

4. The record reveals that there are two injuries on the person or
the complainant for which as, many, as three persons have been
charged. Whether it could be the doing, of one, person or more
than one; whose fire turned effective, if at all they were-present
and whether they can be saddled with the intention to kill the
complaint when the injuries are not on the vital part of the body,
are the questions which essentially require further inquiry
particularly when the possibility, at the moment. of false
implication in view the tendency of the people to throw wide the
net of implication to rope in even, those who have no hand in the
commission of the crime, cannot be ruled out.

5. For the reasons discussed above, this petition is allowed and the
petitioners are directed to be released on bail, if they, furnish bail bonds
in the sum of Rs.3,00,000 (Rs. Three lacs) each in the like amount to the
satisfaction of the Illqa/Judicial Magistrate who is to ensure that the
sureties are local, reliable and men or means.

M.B.A./7836/P
Bail Granted

Peshawar High Court

 1958

Peshawar High Court

 1959
Fida Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 399/2003 Date of hearing 11.07.2003

EJAZ AFZAL KHAN, J. – The petitioner who is charged

in a case registered against him under section 9 CNSA read with
sections 16,178,156(1) (89), 157 & 2(s) of Customs Act,1969, vide
FIR No.43 dated 7.9.2002 , Police Station I&P Branch Customs
House, Peshawar, for traveling in a flying coach alongwith the
driver thereof , wherefrom 14 KGs. of Chars was recovered, seeks
his release on bail mainly on the ground that there is absolutely
nothing on the record to show that he was in conscious possession
of the incriminating material so recovered.

2. As against that the learned Deputy Attorney

General opposes the grant of bail by arguing that in view of the
quantum of the substance recovered the case would fall within the
ambit of prohibitory clause.

3. As argument advanced by the learned counsel for

the petitioner involves deeper appreciation of evidence which is
not the domain of this Court while being seized of petition of bail,
I will not like to comment on that one way or the other lest it may
prejudice the case of either of the parties. However, while
dismissing this petition, I would direct the learned trial Court to
conclude this case within a period of two months as the charge has
already been framed and only a few witnesses are to be examined
failing which the petitioner , may if so advised approach this
Court even without moving the trial Court for bail.

Announced:
11.07.2003 JUDGE

Peshawar High Court

 1960
Gohar Ali Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)
JUDGMENT
Cr.M. No. 456/2003 Date of hearing 11.07.2003

EJAZ AFZAL KHAN, J. – The petitioner who is charged

in a case registered against him under section 420/468/471 PPC
read with section 156(89) of Customs Act, 1969 vide FIR No.174
dated 9.4.2003 Police Station Sher Garh, Mardan, for having been
found in possession of a vehicle allegedly stolen and smuggled,
seeks his release on bail mainly on the ground that none of the
offences he is charged with fall within the ambit of section
156(1)(8) of the Customs Act and therefore, do not attract the
prohibitory clause.

2. As against that the learned Deputy General

appearing on behalf of the State very frankly conceded that the
offences the petitioner is charged with do not fall within the ambit
of section 156(1) (8) and as such do not attract the prohibitory
clause.

3. I have carefully gone through the record and

considered the submissions of the learned counsel for the parties.

4. As the offences the petitioner is charged with do not

attract the prohibitory clause, I do not feel inclined to withhold the
concession of bail particularly when the ultimate conviction if any
will repair the wrong caused by mistaken relief of bail.

5. For the reasons discussed above, I allow this

petition and direct the petitioner to be released on bail provided he
furnishes bail bond in the sum of Rs.3,00,000/-(Rupees Three
Lacs) with two sureties each in the like amount to the satisfaction
of illaqa Judicial Magistrate, Mardan.
Announced
11.07.2003 JUDGE

Peshawar High Court

 1961
Raees Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 561/2003 Date of hearing 11.07.2003

EJAZ AFZAL KHAN, J. – The petitioner who is charged

in a case registered against him under Section 9 CNSA vide FIR
No.250 dated 21.5.20023 Police Station Yakatoot, for having been
found in possession of 1050 grams of charas and 5 grams heroin,
seeks his release on bail mainly on the ground that in view of the
quantum of the substance recovered he cannot be awarded the
maximum sentence provided by the statute.

2. As against that the learned counsel appearing on

behalf of the State argues that the petitioner is involved in many
other cases of this type hence he does not deserve the concession
of bail as now it is high time to check the phenomenon of the
narcotics which tends to envelop the entire society in its evil fold.

3. I have carefully gone through the record and

considered the submissions of the learned counsel for the parties.

4. As the quantum of sentence has to be proportionate

to the quantum of substance recovered I doubt that the petitioner
can be awarded maximum sentence provided by the statute.
Needless to say that the Courts while sitting in judgment on a
petition for bail are not supposed to keep in view the maximum
sentence provided by the statute but the one likely to be entailed by
the facts and circumstances of the case.

5. The argument that the petitioner has been involved

in many other cases, therefore, he does not deserve the concession
of bail has not impressed me to the least as mere registration of a

Peshawar High Court

 1962
case which is yet to be proved in the Court of law will not
disentitle him to bail if a case for bail is made out.

6. For the reasons discussed above, I allow this

petition and direct the petitioner to be released on bail provided he
furnishes bail bond in the sum of Rs.3,00,000/- (Rupees Three
Lacs) with two sureties each in the like amount to the satisfaction
of the learned trial Court who shall see that the sureties are local,
reliable and mean of means.

Announced
11.07.2003 JUDGE

Peshawar High Court

 1963
Dilawar Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 538/2003 Date of hearing 14.07.2003

EJAZ AFZAL KHAN, J. – The petitioners who are

charged in a case registered against them under sections 156 (89)/
279/337-G/109/427/420/468/471 PPC. Read with section 13-A.O,
vide FIR No.378 dated 15.5.2003 ,Police Station Takht Bhai seek
their bail mainly on the grounds that it is yet to be determined
whether the case of the petitioners falls within the ambit of
section 156(1) (8) or 156(89) of the Customs Act,1969.

2. As against that, the learned Deputy Attorney

General opposes the grant of bail by arguing that the case in hand
clearly and squarely falls within ambit of section 156(1)(8) and
(89) of the Act, therefore, the arguments of the learned counsel for
the petitioners is hypothetical out and out.

3. I have carefully gone through the record and

considered the submissions of the learned counsel for the parties.

4. Whether in the circumstances of the case section

156 (1)(8) of the Act is applicable or the case is covered by section
156(89) is essentially one of further inquiry. Apart from this, since
all the other offences the petitioners are charged with do not fall
within the prohibitory clause, I do not feel inclined to withhold the
concession of bail to the petitioners as in such like cases bail and
not the Jail is the rule.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/-(Rs.three lacs)
with two sureties each in the like amount to the satisfaction of the

Peshawar High Court

 1964
learned Judge Special Court who is to ensure that the sureties are
local, reliable and men of means.

Dated:14.7.2003. JUDGE.

Peshawar High Court

 1965
Farhad Aziz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 544 & 545/2003 Date of hearing 14.07.2003

EJAZ AFZAL KHAN, J. – Farhad Aziz petitioner in

Cr.Misc. No. 544 of 2003 and Muhammad Wali petitioner in
Cr.Misc. No. 545 of 2003 which are disposed of by this single
order, seek their release on bail in a case registered against them
and many others under Section 506/447/448/458/ 354/147/148/149
PPC, and under Section 20 Offences Against Property
(Enforcement of Hudood) Ordinance, 1979 read with Section 25
TA, mainly on the ground that the facts and circumstances of the
case even if admitted to be correct do not disclose the commission
of a crime falling within the prohibitory clause as they took no
precaution to conceal such house tress-pass from any of the
persons of the house who has a right to exclude or reject them from
the house.

2. As against that the learned State counsel assisted by

the learned counsel appearing for the complainant argues that
besides the lurking house tress-pass the petitioners have also
committed Harraba, therefore, they do not deserve the concession
of bail as both the offences being punishable with more than 10
years imprisonment are covered by the prohibitory clause.

3. I have carefully gone through the record of the case

and considered the submissions of learned counsel for the parties.

4. Whether in the circumstances of the case the act of

the petitioners who took no precaution to conceal the aforesaid
tress-pass would fall within the mis-chief of lurking house tress-
pass and whether their act of throwing out the luggage of the house
when they did not take it along would constitute Harraba are the

Peshawar High Court

 1966
questions which require further inquiry. Needless to say that rest of
the offences, the petitioners are charged with, do not attract the
prohibitory clause.

5. For the reasons discussed above, these petitions are

allowed and the petitioners are directed to be released on bail
provided they furnish bail bonds in the sum of Rs. 2,00,000/-
(rupees two lac) each with two sureties each in the like amount to
the satisfaction of Illaqa Judicial Magistrate.

ANNOUNCED:
14.07.2003. JUDGE

Peshawar High Court

 1967
Malik Jehangir ---Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 567/2003 Date of hearing 14.07.2003

EJAZ AFZAL KHAN, J. – The petitioner, who is

charged in the case registered against him and eight others under
Section 302/324/148/149 PPC vide FIR No. 148 dated 24.02.2003
Police Station University Town, when failed to get the concession
of bail from the lower forums moved this Court for the same relief.

2. The learned counsel appearing on behalf of the

petitioner contended that the seats and dimensions of injuries show
that it could be a doing of one man for which the entire family has
been roped in without specifying as to whose shot turned effective.

3. As against that the learned counsel appearing on

behalf of the State argued that the petitioner is prima facie linked
with the crime as he came armed along with his other co-accused
and participated in the commission of the crime.

4. Whether the occurrence could be a doing of one

man or more than one when all the injuries are similar in
dimension; whether the petitioner was in fact present at the scene
of occurrence and participated in the commission of the crime or
his name was mentioned in the list of assailants simply because he
hailed from the same family are the questions which essentially
require further inquiry, that too, when the tendency of the people in
view of their past blood feud, to charge even those who have no
hand in the commission of the crime cannot be ruled out.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail if he
furnishes bail bond in the sum of Rs.5,00,000/- (rupees five lac)

Peshawar High Court

 1968
with two sureties each in the like amount to the satisfaction of
Illaqa Judicial Magistrate.

ANNOUNCED:
14.07.2003. JUDGE

Peshawar High Court

 1969
Dilawar --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 578/2003 Date of hearing 14.07.2003

EJAZ AFZAL KHAN, J. – The petitioners who are

charged in a case registered against the them under sections
279/337/109/427/420/468/471/13 A.O./7 STA, vide FIR No. 378
dated 15.5.2003, Police Station Takht Bhai, seek their release on
bail mainly on the ground that none of the offences the petitioners
are charged with falls within the ambit of prohibitory clause.

2. As against that, the learned Deputy Advocate

General appearing on behalf of the State, argues that the petitioners
are belonging to tribal territory and as such they are likely to go
well beyond the clutches of the Law Enforcing Agencies of the
settled area, therefore, they do not deserve the concession of bail
notwithstanding the fact that the offences they are charged with do
not fall within the prohibitory clause.

3. I have gone carefully gone through the record and

considered the submissions of the learned counsel for the parties.

4. As none of the offences the petitioners are charged

with attracts the prohibitory clause, I do not feel inclined to
withhold the concession of bail as in such like cases grant of bail is
a rule and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on
furnishing bail bonsds in the sum of Rs.3,00,000/-(Rs.Three lacs)
with two sureties each in the like amount to the satisfaction of the

Peshawar High Court

 1970
Illaqa /Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated: 14.7.2003 JUDGE

Peshawar High Court

 1971
Mst. Naureen --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 415/2003 Date of hearing 18.07.2003

EJAZ AFZAL KHAN J. - The petitioner through this

petition seeks cancellation of bail granted to the accused-
respondent mainly on the ground that both the Courts below have
not exercised their discretion in accordance with the well
recognized principles of law regulating the grant and refusal of bail
in spite of the fact that the respondent was directly charged and the
version given by the prosecution was fully supported by the
medical evidence.

2. The learned counsel appearing on behalf of the

State supports the petition for cancellation of bail by adopting the
arguments advanced by the learned counsel for the petitioner.

3. The learned counsel appearing on behalf of the

accused respondent argues that considerations for grant of bail are
totally different from those for cancellation of bail and that the
superior Courts of the country are slow in cancelling the bail
unless the order granting bail is perverse and whimsical.

4. I have carefully gone through the record and

considered the submissions of the learned counsel for the parties.

5. Whether the injuries sustained by the petitioner

could be caused in the manner described by her in the first
information report is a question requiring further inquiry. Apart
from this as there is nothing in the impugned order which could
smack of any whim or perversity, I do not feel inclined to cancel
the bail granted to the accused respondent moreso when , there is

Peshawar High Court

 1972
nothing on the record to show that he mis-used this concession
after being released on bail.

6. For the reasons discussed above, this petition being

without substance is dismissed.

Dated: 18-7-2003. JUDGE

Peshawar High Court

 1973
Ziarat Gul --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1131/2003 Date of hearing 17.11.2003

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 324/411/34 PPC.,
13 A.O. read with section 20 of the Offences Against Property
(Enforcement of Hudood ) Ordinance, 1979 , Vide FIR No.154
dated 5.3.2002, Police Station Faqir Abad Peshawar seeks his
release on bail mainly on the ground that none of the offences he
is charged with attracts the prohibitory clause and that there is no
prospect of conclusion of his trial despite the fact that he is in Jail
for almost 20 months.

2. The learned Additional Advocate General argues

that the bail petition of the petitioner was dismissed on merits and
that instead of releasing the petitioner on bail; a direction could be
given to the learned trial Court for conclusion of his trial.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may. The very fact that the

petitioner has remained in Jail for almost 20 months and his trial
has not been concluded so far, will alone entitle him to be released
on bail, more so when there is no ,prospect of conclusion of h is
trial in near future. Needless to say that speedy trial is a right of an
accused and that his fate cannot left hung for an indefinite period
of time especially when ultimate conviction, if any , can repair the
wrong caused by mistaken relief of bail and no reparation can be
offered for an unjustified incarceration if he is to be acquitted
ultimately.

Peshawar High Court

 1974
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail if he
furnishes bail bonds in the sum of Rs.1,00,000/-(Rs. One lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated: 17.11.2003.
JUDGE

Peshawar High Court

 1975
Pervez Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1286/2003 Date of hearing 01.12.2003

EJAZ AFZAL KHAN, J.- The petitioners who are

charged with in a case registered against them under sections
419/420/467/468/471 PPC., Vide FIR No.831 dated 30.9.2003,
Police Station Tangi District Charsadda, seek their release on bail
mainly on the ground that none of the offences they are charged
with falls within the ambit of prohibitory clause and that the truth
or otherwise of the allegation is yet to be determined as civil suit
with regard to the same transaction is pending decision in a Civil
Court.
2. As against that, the learned State counsel assisted
by the learned counsel for the complainant opposes the grant of
bail by arguing that mere fact that the case does not fall within the
ambit of prohibitory clause will not entitle the petitioners to be
released on bail if a prima facie case is made out against them.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The very fact that none of the offences the

petitioners are charged with attracts prohibitory clause and that a
civil suit regarding the same transaction is pending adjudication in
a civil Court will make out a case for bail. Needless to say that in
all the offences which are not punishable with 10 years
imprisonment or imprisonment for life, the grant of bail is a rule
and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rs.2,00,000/-)

Peshawar High Court

 1976
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:1.12.2003. JUDGE

Peshawar High Court

 1977
Javed --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1222/2003 Date of hearing 08.12.2003

EJAZ AFZAL KHAN, J.-_ The petitioner who is charged

in a case registered against him and 4 others under sections
506/34/337-F(ii) PPC., vide FIR No.684 dated 15.8.2003, Police
Station Takht Bhai, seeks his release on bail mainly on the ground
that none of the offences he is charged attracts the prohibitory
clause and that the grant of bail in such like cases is a rule and
refusal is an exception.

2. As against that the learned counsel appearing for the

State assisted by the learned counsel for the complainant, opposes
the grant of bail by arguing that the petitioner despite being sub-
ordinate to the complainant has shown extreme degree of high
handedness by assaulting his superior, therefore, he
notwithstanding the fact that none of the offences attracts
prohibitory clause does not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, the very fact that none of the

offences the petitioner is charged with attracts prohibitory clause
and that he has already remained in Jail for more than two months
will entitle him to be released on bail as grant of bail in such like
cases is a rule and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bond in the sum of Rs.1,00,000/- (Rs.one lac) with

Peshawar High Court

 1978
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:8.12.2003. J U D G E.

Peshawar High Court

 1979
Yar Jan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 262/2003 Date of hearing 05.12.2003

EJAZ AFZAL KHAN, J.-_ Through the instant petition

the petitioner has question the order dated 21.10.2003 of the
learned Zila Qazi Malakand whereby he allowed the revision
petition filed by the respondents and ordered the return of the
vehicle thereto.

2. It was vehemently argued by the learned counsel for

the petitioner that the petitioner is an un-disputed owner of the
vehicle and that he is entitled to its custody notwithstanding its sale
to the respondents because the respondents committed criminal
breach of trust by failing to pay the installments in accordance
with the terms of sale.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the
petitioner.

4. The very fact that the tractor in question was

admittedly sold by the petitioner to the respondent will dis-entitle
him to its custody as he could only institute a civil suit for recovery
of arrears if at all respondents have defaulted in its payment in
accordance with the stipulated terms. Since the interim relief by
way of interim custody of the tractor can also be had through a
civil suit, I will not like to interfere with the impugned order.

5. For the reasons discussed above, this petition being

without substance is dismissed in limine.

Dated:5.12.2003. JUDGE

Peshawar High Court

 1980
Fazal Kareem --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1124/2003 Date of hearing 15.12.2003

EJAZ AFZAL KHAN, J.-_ The petitioner who is charged

in a case registered against him under section 316 PPC., vide FIR
No.405 dated 15.8.2003, Police Station Pir Baba, seeks his release
on bail mainly on the ground that the ocular account is in conflict
with the medical evidence as for as the cause of death is concerned
and that it is yet to be determined whether the case is covered by
section 316 or 322 PPC. especially when the deceased died
because of a push given by the petitioner.

2. As against that, the learned State counsel assisted

by the learned counsel for the complainant argues that the case is
clearly covered by section 316 PPC. and that when the intention to
kill the deceased is palpable from the record, the mere fact that the
deceased died on account of a push given by the petitioner will not
in any way mitigate his responsibility.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the deceased died his natural death or on

account of a push given by the petitioner are the questions which
essentially require further inquiry that too when according to the
Doctor the deceased died without any use of violence. Similarly
the question whether the case is covered by section 316 or 322
PPC. is also one calling for further inquiry.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rs.three lacs)

Peshawar High Court

 1981
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:15.12.2003. J U D G E.

Peshawar High Court

 1982
Sardar --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1312/2003 Date of hearing 22.12.2003

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under sections 400,401
and 411 PPC., Vide FIR No.568 dated 23.10.2003, Police Station
Khawaza Khela, seek their release on bail chiefly on the ground
that so far no evidence has been collected by the Investigating
Agency as could connect them with the crime particularly when no
incriminating material has been recovered from the car they were
traveling in at the relevant time.

2. As against that, the learned State counsel argues

that the petitioners are belonging to gang of dacoities and even if
nothing incriminating has been recovered from their possession,
this fact alone will dis-entitle them to be released on bail as it
clearly and squarely falls within the ambit of section 400 of the
PPC. which is punishable with 10 years imprisonment.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the petitioners are belonging to a gang of

dacoits and whether the bags of vegetables etc. recovered from the
road side could be held to be a stolen property when no one has
seen the petitioners throwing them down from the trucks carrying
them are the questions which require further inquiry especially
when the Investigating Agency has not examined any person so far
alleging that the said bags belong to him and that they were stolen
from the trucks.

Peshawar High Court

 1983
6. For the reasons discussed above, this petition is
allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rs.One lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:22.12.2003. JUDGE.

Peshawar High Court

 1984
Niaz Ali --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1282/2003 Date of hearing 22.12.2003

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under article ¾ of the Prohibition
(Enforcement of Hadd) Order, 1979, vide FIR No.347 dated
23.9.2003, Police Station Yar Hussain, for having been found in
possession of 25 grams of heroin, seeks his release on bail mainly
on the ground that in view of the quantum of the substance
recovered, he may not be awarded the maximum sentence provided
by the Statute.

2. As against that, the learned State counsel argues

that the offence of possessing more than 10 grams of heroin being
punishable with imprisonment for life under Article 4 of
(Enforcement of Hadd) Order, 1979, prima facie attracts
prohibitory clause, therefore, the petitioner does not deserve the
concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Since the provisions of CNSA, 1997, by virtue of its

provision contained in section 76 has been given overriding effect
on all other laws, I doubt the applicability of the Order mentioned
above.

5. As the substance recovered from the petitioner is

less than 100 grams, the offence being covered by section 9 (a) of
the CNSA does not attract prohibitory clause for its being
punishable with two years R.I. or with fine or with both.

Peshawar High Court

 1985
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bond in the sum of Rs.50,000/- (Rs.Fifty thousand)
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:22.12.2003. J U D G E.

Peshawar High Court

 1986
Mst. Naza --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1292/2003 Date of hearing 22.12.2003

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA read with
articles ¾ of the Prohibition (Enforcement of Hadd) Order, 1979,
vide FIR No.356 dated 31.7.2003, Police Station Sher Garh,
Mardan, seeks her release on bail mainly on the ground that an ASI
was not competent to make search, seizure and arrest of the
petitioner; that in view of the quantum of the substance recovered
it is doubtful that she could be awarded a punishment attracting
the prohibitory clause. Reliance is placed on the case of
Nasrullah..Vs..The State (PLD 2001 Peshawar 152).

2. As against that, the learned counsel appearing on

behalf of the State argues that the petitioner is directly charged;
that the recovery of incriminating material has not been
convincingly disputed and that the case made out against the
petitioner prima facie attracts the prohibitory clause, therefore, she
does not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The very fact that the search and seizure was made
by an ASI will make out a case for bail particularly when he was
informed about the alleged trafficking and transportation of
narcotics in advance. In the case of Nasrullah..Vs..The State
(Supra) this Court granted bail to a person found in possession of 7
K.Gs. of charas when the search and seizure was not made in
accordance with the provisions of sections 20 and 21 of the CNSA.

Peshawar High Court

 1987
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail if she
furnishes bail bond in the sum of Rs.3,00,000/- (Rs.Three lacs)
with two sureties each in the like amount to the satisfaction of
Illaqa/Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:22.12.2003. JUDGE

Peshawar High Court

 1988
____________________Appellant/Petitioner (s)

Versus
_______________________Respondent (s)

JUDGMENT
Cr.M. No. 2/2004 Date of hearing 09.01.2004

EJAZ AFZAL KHAN, J.- The petitioner who is charged

in a case registered against him and 3 others vide FIR No.278
dated 28.8.2002, Police Station Pezu, seeks his release on bail
mainly on the ground that his case is by no means distinguishable
from that of his co-accused Malik Imran Khan who has since been
released on bail by this Court, vide order dated 19.9.2003 in
Cr.M.No.988 of 2003 and as such he merits identical treatment.

2. As against that, the learned State counsel does not

oppose the request of the petitioner for bail as his case is not
distinguishable from that of his co-accused mentioned above.

3. The learned counsel appearing on behalf of the

complainant argues that there a bay of difference between the case
of the petitioner and that of his co-accused, therefore, he has
rightly been refused bail by the Courts below.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Since the case of the petitioner is not

distinguishable from that of his co-accused mentioned above who
has been released on bail, vide order mentioned above, I do not see
any strong reason to withhold the concession of bail to him ,
moreso when as a matter of law and equity likes are to be treated
alike.

Peshawar High Court

 1989
6. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail if he
furnishes bail bond in the sum of Rs.3,00,000/- (Rs.Three lacs)
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:9.1.2004: J U D G E.

Peshawar High Court

 1990
____________________Appellant/Petitioner (s)

Versus
_______________________Respondent (s)

JUDGMENT
Cr.M. No. 1345/2003 Date of hearing 09.01.2004

EJAZ AFZAL KHAN, J.- The petitioner who is charged

in a case registered against him and 3 others under sections
302/324/34 PPC., Vide FIR No.278 dated 28.8.2002, Police
Station Pezu, seeks his pre-arrest bail from this Court mainly on
the ground that Mr.Walayat Ali Khan, learned Sessions Judge
Lukki is irrevocably biased against hm; that the prosecution
against him is motivated by malice; that the charges against him
are of a nature as could be trumped up by an adversary to cause
injury to the name and liberty of the petitioner and that his case is
identical to one of his co-accused who has been released on bail by
this Court , vide order dated 19.9.2003.

2. As against that, the learned State counsel assisted

by the learned counsel for the complainant argues that the learned
Sessions Judge against whom bias has been alleged by the
petitioner has since been transferred, therefore, it will not be
proper and in the fitness of things to entertain this petition straight-
away in the High Court.

3. As nothing extra ordinary is in existence after the

transfer of the learned Sessions Judge mentioned above, it will not
be proper and in the fitness of things to entertain this petition in
this Court as it will not set a healthy precedent for future.
Therefore, this petition is returned to the petitioner for its
presentation in the Court of the Learned Sessions Judge Lukki on
or before 26.1.2004. Till then the he shall not be arrested.

Dated:9.1.2004: J U D G E.

Peshawar High Court

 1991
____________________Appellant/Petitioner (s)

Versus
_______________________Respondent (s)

JUDGMENT
Cr.M. No. 4152/2003 Date of hearing 19.01.2004

EJAZ AFZAL KHAN, J,- The petitioner who is charged

in a case registered against him under section 489-B PPC., vide
FIR No.751 dated 22.11.2003, Police Station Kohat, seeks his
release on bail chiefly on the ground that so for there is no
evidence whatever on the record to show that he was in any way
dealing with or trafficking in counterfeit notes, therefore, the case
would be covered by section 489-C PPC. which being punishable
with 7 years imprisonment or fine or with both does not attract the
prohibitory clause.

2. As against that, the learned counsel appearing on

behalf of the State argues that the petitioner was found in
possession of 100 counterfeit notes of 100 denomination and the
very quantity would suggest that he was dealing with or trafficking
in counterfeit notes.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record would reveal that so far there is nothing

to show that the petitioner besides being found in possession of the
counterfeit notes was also in any way dealing with or trafficking
in counterfeit notes. When that being the case, the offence would
be covered by section 489-C instead of section 489-B PPC. which
being punishable with imprisonment for 7 years R.I. or with fine or
with both, does not attract the prohibitory clause.

Peshawar High Court

 1992
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail if he
furnishes bail bond in the sum of Rs.2,00,000/- (Rs.Two lacs) with
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:19.1.2004: JUDGE

Peshawar High Court

 1993
Hazrat Hussain --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 236/2003 Date of hearing 09.01.2004

EJAZ AFZAL KHAN, J.-_ The petitioner whose vehicle

has been taken into custody by the Local Police in a case
registered against him under sections 381-A/419/420 PPC., vide
FIR No.136 dated 3.3.2002, Police Station Shergarh, when failed
to get its custody from the Courts below, approached this Court.

2. It was argued by the learned counsel for the

petitioner that the petitioner was last found in possession of the
aforesaid vehicle; that he is a bona fide purchaser and that in the
absence of any rival claimant no useful purpose is likely to be
served by retaining it in police custody.

3. As against that, the learned counsel appearing on

behalf of the State, argued that when the very chassis number of
the vehicle was found tampered according to the opinion of the
chemical examiner, the bona fide claim of the petitioner
automatically dashes to the ground, therefore, his request for
custody has rightly been declined by the forums below.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. The record reveals that the vehicle in question was

seized from the possession of the petitioner and so far the
Investigating Agency could not collect any evidence to show that it
in fact was stolen notwithstanding tampering in its chassis number.
In the absence of any rival claimant of the vehicle, I do not think,
its retention in police custody will serve any purpose.

Peshawar High Court

 1994
6. For the reasons discussed above, I allow this
petition and in the circumstances of the case, I direct its release to
the petitioner if he furnishes a Bank Guarantee to the tune of
Rs.50,000/- and surety bond in the sum of Rs.1,50,000/- with two
sureties each in the like amount to the satisfaction of the Illaqa/Judl
Magistrate. The petitioner will produce the vehicle in the Court if
and when required . None of these observations will prejudice the
claim of a person showing better title to the vehicle than the
petitioner.

Dated:9.1.2004: JUDGE.

Peshawar High Court

 1995
____________________Appellant/Petitioner (s)

Versus
_______________________Respondent (s)

JUDGMENT
Cr.M. No. 35/2004 Date of hearing 30.01.2004

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under section 9 of the
CNSA, vide FIR No.667 dated 28.12.2001, Police Station
Khawaza Khela, Distt Swat, seek their release on bail mainly on
the ground that even if the recovery of the substance is accepted to
have been effected from their possession , the offence made out
against them will not attract the prohibitory clause as the maximum
sentence for possessing one K.G. of chars is seven years.

2. The learned D.A.G. appearing on behalf of the State

argues that the phenomenon of the narcotics being too rampant in
the society is likely to affect every hut and every house therefore,
the petitioners are not entitled to be released on bail, even though
the offence does not fall within the prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the recovery of one K.G. recovered from the

possession of the petitioners even if accepted to be true, will not
entail a punishment attracting prohibitory clause, I do not see any
strong reason to withhold the concessions of bail when grant of
bail in such like cases is a rule and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail if they
furnish bail bonds in the sum of Rs.1,00,000/- (Rs.One lac) with

Peshawar High Court

 1996
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:30.1.2004. JUDGE

Peshawar High Court

 1997
Sharbat Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 10/2004 Date of hearing 30.01.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA, vide FIR
No.741 dated 4.12.2003, Police Station Yakatoot, seeks his release
on bail mainly on the ground that the search of his house resulting
in a recovery of 10 K.Gs. of chars was not conducted in
accordance with the provisions of section 21 of the Act.

2. The learned counsel for the petitioner to support the

prayer for bail placed reliance on the cases of Gul Hussan
Dero..Vs..The State 2000 P.Cr.LJ 657), Waris Khan..Vs..The State
(2000 P.Cr.L.J. 1225), Muhammad Ashraf..Vs..The State (2000
P.Cr.L.J. 917), Zar Gul..Vs..The State (2003 P.Cr.L.J. 1392) and
Javed Gul..Vs..The State (2002 P.Cr.L.J. 1429).

3. As against that, the learned counsel D.A.G.

appearing on behalf of the State argues that the petitioner is a
peddler as is evident from the case FIR No.740 dated 4.12.2003,
Police Station Yakatoot and FIR No.329 dated 8.7.2003, therefore,
he does not deserve the discretionary relief of bail, moreso when,
in view of the quantum of the substance recovered , he is prima
facie linked with a crime attracting the prohibitory clause.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties

5. A perusal of the record reveals that as many as 10

K.Gs. of chars was recovered from the house of the petitioner
pursuant to a search made by the police. Whether the search was
made in contravention of the provisions contained in section 21 of

Peshawar High Court

 1998
the CNSA is a question which cannot be decided without deeper
appreciation of evidence which is not the domain of this Court
while being seized of the petition for bail.

6. Since each criminal case, being captive of its own

background, has to be decided on its facts, I do not think the
judgments cited at the bar will have any relevance to the case in
hand.

7. For the reasons discussed above, this petition being

without substance is dismissed and the Prosecution is directed to
submit challan in the Court of competent jurisdiction within a
fortnight, while the trial Court is directed to conclude the trial
within a period of six months failing which the petitioner may, if
so advised, approach this Court for bail. The record of the case be
sent to the concerned Police Station forthwith.

Dated:30.1.2004. JUDGE

Peshawar High Court

 1999
Pir Muhammad --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 48/2004 Date of hearing 30.01.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under article ¾ of the Prohibition
(Enforcement of Hadd) Order, 1979, for having been found in
possession of one K.G. of chars , vide FIR No.1447 dated
19.12.2003, Police Station Charsadda, seeks his release on bail
mainly on the ground that in the absence of any evidence showing
that the accused is indulging in the sale or transportation of
narcotics, the offence being covered by article 4 of the Order being
bailable will not attract the prohibitory clause.

2. As against that, the learned D.A.G. despite efforts

could not dispute this proposition of law.

3. As the offence made out against the petitioner does

not attract the prohibitory clause either under article 4 of the Order
or section 9 of the CNSA, if it is held to be applicable in view of
the provisions contained in section 76 of the Act, I do not see any
good ground to refuse bail.

4. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.1,00,000/-(Rs.one lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:30.1.2004. JUDGE.

Peshawar High Court

 2000
Muhammad Ashgar --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 40/2004 Date of hearing 27.02.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections
419/420/468/482/483/486 PPC. read with sections 66/67/71 of the
Copy Rights Ordinance, vide FIR No.280 dated 4.4.2003, Police
Station City Kohat, seeks his release on bail mainly on the ground
that none of the offences he is charged with falls within the ambit
of prohibitory clause and that the grant of bail in such like cases is
a rule and refusal is an exception.

2. As against that, the learned D.A.G. appearing on

behalf of the State, does not oppose the grant of bail for the reason
stated above.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Since none of the offences the petitioner is charged

with falls within the ambit of prohibitory clause, I do not see any
strong reason to withhold the concession of bail as bail and not jail
is a rule in such like cases.

5. For the reasons discussed above, this ,petiltion is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rs.One lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate who is to ensure that the sureties are local,
reliable land men of means.

Dated:27.2.2004. JU DGE

Peshawar High Court

 2001
Riaz --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No 85/2004 Date of hearing 27.02.2004

EJAZ AFZAL KHAN J.- The learned counsel for the

petitioners does not press this petition in case a direction is given
to the learned trial Court to conclude this case within a period of
six months.

2. The learned D.A.G. has no objection to the above

stated position as the number of witnesses to be examined is not
much.

3. In view of the above, this petition is dismissed as

not pressed. However, the Prosecution is directed to submit challan
in this case within one week and the learned trial Court is directed
to conclude this case within a period of four months positively
failing which the petitioner may, if so advised, approach this Court
for bail. The record of the case be sent as soon as possible but not
later than tomorrow.

Dated:27.2.2004. JUDGE

Peshawar High Court

 2002
Islam Gul --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 115/2004 Date of hearing 27.02.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged in

a case registered against him under section 9 of the CNSA read
with section 13 A.O., vide FIR No.560 dated 22.12.2003, Police
Station Umarzai, when failed to get the concession of bail from the
forums below, asked therefor by moving this Court.

2. It was argued by the learned counsel for the

petitioner that since the quantum of the substance recovered is less
than 1000 grams, the offence being punishable with 7 years
imprisonment will not attract the prohibitory clause.

3. As against that, the learned State counsel opposed

the grant of bail by arguing that in such like offences the accused
do not deserve the concession of bail notwithstanding that they do
not attract the prohibitory clause.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Since the offence the petitioner is charged with does

not fall within the prohibitory clause, I do not see any strong
reason to deviate by from the recognized judicial course by
refusing bail, as grant of bail in such like cases is a rule and refusal
is an exception.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail,
provided, he furnishes bail bonds in the sum of Rs.1,00,000/-
(Rs.One lac) with two sureties each in the like amount to the

Peshawar High Court

 2003
satisfaction of the Illaqa/Judl Magistrate who is to ensure that the
sureties are local, reliable and men of means.

Dated:27.2.2004. JUDGE.

Peshawar High Court

 2004
Arshid Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 201/2004 Date of hearing 12.03.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under Article ¾ of the Prohibition
(Enforcement of Hadd) Order, 1979, vide FIR No.62 dated
6.2.2004, Police Station Chamkani, for having been found in
possession of one K.G. of chars, seeks his release on the sole
ground that in view of the quantum of substance recovered, the
offence made out against him does not fall within the prohibitory
clause.

2. The learned State counsel opposes the grant of bail

by arguing that the mere fact that the offence will not entail a
punishment falling within the prohibitory clause does not furnish a
justification for the grant of bail as a matter of right.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Since the offence the petitioner is charged with does

not attract the prohibitory clause, I do not see any strong reason to
with-hold the concession of bail as in such like cases bail and not
the Jail is a rule.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.50,000/- (Rs.Fifty thousand)
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:12.3.2004. JUDGE

Peshawar High Court

 2005
Syed Haleem --- Appellant/Petitioner (s)
Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 72/2004 Date of hearing 02.04.2004

EJAZ AFZAL K J.- The petitioner who is charged in a

case registered against him under section 9 of the CNSA, vide FIR
No.1331 dated 12.11.2003, Police Station Charsadda, when failed
to get the relief of bail from the Courts below, asked therefor by
moving this Court.

2. The learned counsel for the petitioner by placing

reliance on the case of Nasrullah..Vs..The State (PLD 2001
Peshawar 152) argues that where the search and seizure were made
from the possession of the accused in contravention of the
provision embodied in section 21 of the Act, a case for further
inquiry is made out.

3. As against that, Mr.Waheedullah Khan, learned

counsel appearing on behalf of the State argues that section 21
restricts search and seizure by a person below the rank of S.I. from
a building, place or conveyance and not from the person of an
accused, therefore, the judgment cited by the learned counsel for
the petitioner will not help the petitioner in seeking bail.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Whether a person below the rank of S.I. could, in

the circumstances of the case, effect search and seizure from the
person of an accused and what would be the consequence thereof
is a question which requires further inquiry. I, therefore, without
adverting to the merits of the case, allow this petition and direct the
petitioner to be released on bail if he furnishes bail bonds in the
sum of Rs.5, 00,000/- (Rs.five lacs) with two sureties each in the

Peshawar High Court

 2006
like amount to the satisfaction of the learned trial Judge who is to
ensure that the sureties are local, reliable and men of means.

Dated: 2.4.2004. JUDGE

Peshawar High Court

 2007
Zarshad --- Appellant/Petitioner (s)

Versus
Sardar Ghani --- Respondent (s)

JUDGMENT
Cr.M. No. 128/2004 Date of hearing 02.04.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and 2 others under sections
457/380/411 PPC. read with section 14 of the Offences Against
Property (Enforcement of Hudood) Ordinance, 1979, vide FIR
No.842 dated 29.10.2003, Police Station Kalu Khan (Swabi), seeks
his release on bail mainly on the ground that the matter has since
been patched up between the parties and that even otherwise there
is no other evidence except the confessional statement of a co-
accused which can at its best be taken as circumstantial evidence
and is not sufficient to sustain conviction unless supported by
independent facts and circumstances of the case.

2. As against that, the learned counsel appearing on

behalf of the State opposes the bail in a luke warm manner perhaps
because the parties have patched up the matter.

3. Complainant in person present who states that he

has no objection if the petitioner is released on bail as the matter
between him and the latter has been patched up.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. As the matter has been patched up between the

parties, I do not see any strong reason to with-hold the concession
of bail, that too, when there is no other evidence to connect him
with the crime except the confessional statement of a co-accused
which alone cannot form basis of conviction unless corroborated
by impartial and non-partisan sources.

Peshawar High Court

 2008

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rs.One Lacs)
with two sureties each in the like amount to the satisfaction of
Illaqa/ Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:2.4.2004. JUDGE

Peshawar High Court

 2009
Mumtaz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 161/2004 Date of hearing 02.04.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and many others under sections 17
(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979,412 PPC. read with sections 6/7 of the Anti
Terrorism Act, 1997, vide FIR No.174 dated 31.3.2003, Police
Station Chamkani, seeks his release on bail mainly on the ground
that he is minor; that he has not been charged by any of the P.Ws.
and that the recovery of incriminating material at his instance, even
if, taken to be true will not link him with a crime attracting
prohibitory clause.

2. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, argues that the petitioner being a gangster does not
deserve the concession of bail, moreso when, the recovery of
incriminating material prima facie links him with a crime attracting
prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The only evidence which links the petitioner with

the crime is recovery of incriminating material allegedly made at
his instance. Even if, it is believed to be true on the face of it, the
petitioner can at the most be saddled with the responsibility of
receiving stolen property which being covered by section 411 PPC.
will not attract the prohibitory caluse.

Peshawar High Court

 2010
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail if he
furnishes bail bonds in the sum of Rs.1,00,000/- (Rs. One lac) with
two sureties each in the like amount to the satisfaction of the
learned trial Judge who is to ensure that the sureties are local,
reliable and men of means.

Dated:2.4.2004. J U D G E.

Peshawar High Court

 2011
Ahmad Nawaz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 420/2004 Date of hearing 05.07.2004

EJAZ AFZAL KHAN J.- Ahmad Nawaz, petitioner in

Cr.Misc: No.420/2004 and Murad Khan, petitioner in Cr.Misc:
No.492/2004, who are charged in a case registered them and two
others under section 20 of the Offences Against Property
(Enforcement of Hudood) Ordinance, 1979, vide FIR NO.68 dated
21.2.2004, Police Station Topi, when failed to get the concession
of bail from the lower forums, asked therefor by moving this
Court.

2. As both the petitions have arisen from the same

FIR, they are disposed of by this single judgment.

2. It was argued by the learned counsel for the

petitioners that even if the facts spelt out in the FIR are accepted to
be true, a case for extortion simplicitor is made out which being
punishable with 2 years imprisonment or with fine or with both
will not attract prohibitory clause.

3. As against that, learned A.A.G. appearing on behalf

of the State, argues that the case of the petitioners being covered
by section 392 PPC. is punishable with 10 years imprisonment as
‘Tazir’ by virtue of section 20 of the Ordinance, therefore, they do
not deserve the concession of bail.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

Peshawar High Court

 2012
5. No doubt according to the FIR, the petitioner and
their co-accused on a pistol point took away some edibles and valet
containing Rs.200/- from the complainant but strangely enough
neither pistol nor the valet was recovered from any one of them.

6. It is correct that while hearing a petition for bail the

Courts are required to make tentative assessment of the data
available on the record but it does not mean that every word
uttered by the complainant be treated as final truth once for all
without much questioning about it as this attitude is apt to defeat
the very purpose of investigation which being a systematic inquiry
into an incident or allegation is completely different from creation
of evidence in its support.

7. Whether in the circumstances of the case, it was a

robbery or extortion simpliciter or attempt to commit either of
them or it was some other episode which led to the registration of
this case are the questions which necessitate further inquiry and
thus make the case arguable for the purpose of bail, especially
when there is an injury on the person of one of the petitioners and
it is not clear from the record as to how and where did he receive it
and what is the nature thereof.

8. For the reasons discussed above, these petitions are

allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rs.one lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

9. Since the case of Umar Khan and Gulfam, the other

two co-accused, is by no means distinguishable from that of the
petitioners, they too are directed to be released on bail, if they
furnish bail bonds in the sum of the same amount with the same
condition.

Dated:5.7.2004: JUDGE

Peshawar High Court

 2013
Liaqat Ali --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 991/2004 Date of hearing 11.10.2004

EJAZ AFZAL KHAN J.- Liaqat Alil Khan, petitioner in

Cr.Misc. No.991/2004 and Khair Jan, petitioner in
Cr.Misc.No.1050-2004 who are charged in a case registered
against them under section 9 CNSA read with section 3 MVO, vide
FIR No.755 dated 3.12.2003, Police Station Munda, seek their
release on bail on the sole ground that despite order of this Court
directing the Prosecution to submit challan within 15 days and the
trial Court to conclude this case within a period of 4 months has
not been complied with.

2. As against that, the learned DAG argues that

direction of this Court could not be complied with because
supplementary challan in respect of an absconding co-accused was
submitted subsequently which being an act well beyond the control
of the Prosecution, cannot be construed to its detriment.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As despite direction of this Court, the trial has not

been concluded in the stipulated time, I without discussing the
merits of the case, allow these petitions and direct the release of
the petitioners on bail, if they furnish bail bonds in the sum of
Rs.5,00,000/- with two sureties each in the like amount to the
satisfaction of the learned trial Judge who is to ensure that the
sureties are local, reliable and men of means.

Dated:11.10.2004. JUDGE

Peshawar High Court

 2014
Mst. Asia --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 717/2004 Date of hearing 11.10.2004

EJAZ AFZAL KHAN J.- The petitioners who were

charged in a case registered against them under section 9 CNSA,
vide FIR No.29 dated 20.11.2003, Police Station ANF Kohat, seek
their release on bail mainly on the ground that both are having
suckling babies in their laps and that they also face the rigors of
detention for none of their faults. Relies on the case of Mst. Siraja
and 2 othesrs..Vs..The State (PLD 2004 Peshawar 228).

2. As against that, Mr. Muhammad Khalid Khan,

Advocate, appearing on behalf of the State argues that even the
birth of a suckling baby in Jail will not furnish a justification for
grant of bail, particularly when the evidence on the record
sufficiently connects the petitioners with the crime. Relies on the
case of Mst. Robina Kausar..Vs.. The State (2002.P.Cr.L.J. 746).

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, once it has been confirmed by

the Medical Superintendent ,DHQ, Hospital , KDA, Kohat, that the
babies carried by the petitioners are two years and two years three
months old respectively, I will not feel inclined to withhold the
concession of bail when any curb on their freedom though legal
and legitimate tends to curb the freedom of the babies for no fault
of their own.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail, if
they furnish bail; bonds in the sum of Rs.5,00,000/- with two

Peshawar High Court

 2015
sureties each in the like amount to the satisfaction of the learned
trial Judge who is to ensure that the sureties are local, reliable and
men of means.

Dated:11.10.2004. JUDGE

Peshawar High Court

 2016
Asadullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1031/2004 Date of hearing 01.11.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case under sections 324 PPC, 5 Explosive Substances Act,;
read with section 13 A.O., vide FIR No.627 dated 26.9.2003,
Police Station, Chamkani, seeks his released on bail mainly on the
ground that he has been confined in Jail ever since the day of his
arrest and there is no prospect for commencement of trial let alone
its conclusion.

2. As against that, the learned DAG appearing on

behalf of the State argued that though the petitioner has; been
attributed the role of firing of ineffective shots, none-the-less, the
recovery of hand grenade and Kalashnikov from the house in his
possession will prima facie link him with a crime attracting
prohibitory clause, therefore, he does not deserve the concession of
bail.
3. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

4. Without commenting on the tenor of the FIR and

the facts mentioned therein, the fact that the petitioner is in Jail for
more than a Year and there is no prospect of the commencement of
his trial let alone its conclusion, will entitle him to be released on
bail, especially when the learned Addl Sessions Judge seized of the
matter has since been transferred and no new incumbent has been
sent in his stead so far.

5. For the reasons discussed above, this petitioner is

allowed and the petitioner is directed to be released on bail,

Peshawar High Court

 2017
provided, he furnishes bail bonds in the sum of Rs.3,00,000/- (Rs.
Three lacs) with two sureties each in the like amount to the
satisfaction of the Illaqa/ Judicial Magistrate.

Dated:1.11.2004 JUDGE

Peshawar High Court

 2018
Lal Marjan --- Appellant/Petitioner (s)
Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1259/2003 Date of hearing 05.03.2004

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them and 2 others under
section 14 of the Offences Against Property (Enforcement of
Hudood) Ordinance, 1979 and 411 PPC., vide FIR No.149 dated
16.2.2003, Police Station Hangu, seek their release on bail mainly
on the ground that none of the offences they are charged with falls
within the ambit of prohibitory clause and that they are in Jail for
more than one year and there is no prospect for conclusion of their
trial in the near future.

2. As against that, the learned State counsel argues

that the petitioners are prima facie linked with the crime and that
the mere fact that none of the offences they are charged with
attracts the prohibitory clause will not entitle them to be released
on bail, moreso when they involve moral turpitude .

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record reveals that the petitioners are in Jail for

more than one year and still there is no prospect for conclusion of
their trial in the near future, therefore, I do not see any strong
reason to with-hold the concession of bail to them when none of
the offences they are charged with attract the prohibitory clause.
Needless to say that grant of bail in such like cases is a rule and
refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on

Peshawar High Court

 2019
furnishing bail bonds in the sum of Rs.50/- (Rs.Fifty thousand)
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:5.3.2004. JUDGE

Peshawar High Court

 2020
Rozi Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 69/2004 Date of hearing 05.03.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA, vide FIR
No.735 dated 2.12.2004, Police Station Yakatoot, for having been
found in possession of 2 K.Gs of chars, seeks his release on bail
mainly on the ground that in view of the quantum of the substance
recovered from his possession, he may not be awarded maximum
sentence provided by the Statute.

2. As against that, the learned counsel appearing on

behalf of the State argues that the petitioner is involved in as may
as four cases of narcotics as is apparent from the copies of the FIRs
placed on the file, therefore, he does not deserve the concession of
bail as his enlargement on bail will amount to giving him yet
another chance for repeating the crime.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Though the contention of the learned counsel for the

petitioner that in view of the quantum of the substance recovered,
the petitioner, may not be awarded the maximum sentence
provided by the Statute, none-the-less, it will not be appropriate to
release him on bail as even previously this Court released him on
bail despite his involvement in yet another case of similar nature.

5, For the reasons discussed above, this petition is

dismissed. However, the prosecution is directed to submit challan
in the learned trial Court within one week and the learned trial
court is directed to conclude this case within a period of 3 months

Peshawar High Court

 2021
positively failing which the petitioner may, if so advised, approach
this Court for bail.

Dated:5.3.2004. JUDGE

Peshawar High Court

 2022
Hazrat Hussain --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 95/2004 Date of hearing 08.03.2004

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under section 9 CNSA,
vide FIR No.144 dated 27.12.2003, Police Station, Gumbat,
District Kohat, seek their release on bail on the ground that mere
presence of all the petitioners in the vehicle wherefrom the
incriminating material has been recovered will not saddle them
with criminal responsibility, moreso when, it could the doing of
one of them and it is not clear from the record as to who he was.

2. As against that, the learned counsel appearing on

behalf of the State argues that each petitioner by virtue of his
presence in the vehicle wherefrom a huge quantity of narcotic has
been recovered shall be deemed to be in its constructive
possession, therefore, each of them being prima facie linked with
the crime is not entitled to be released on bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Without adverting to the merits of the case, lest it

prejudices the stances taken by either of the parties, I do not feel
inclined to grant the concession of bail to the petitioners, therefore,
this petition is dismissed. However the Prosecution is directed to
submit challan in the trial Court within one month which is
directed to conclude this case within a period of four months after
the receipt of challan positively, failing which the petitioners may,
if so advised, approach this Court for bail.

Dated:8.3.2004. JUDGE

Peshawar High Court

 2023
Jehanzeb --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 226/2004 Date of hearing 15.03.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 of the CNSA, vide
FIR No.31 dated 31.12.2003, Police Station Anti- Narcotics,
Peshawar for having been found in possession of 1500 grams of
chars, seeks his release on bail mainly on the ground that in view
of the quantum of substance recovered, the petitioner may not be
awarded a sentence attracting prohibitory clause and that despite
his detention in Jail for more than 3 months, there is no prospect of
conclusion of his trial in the near feature.

2. As against that, the learned counsel appearing on

behalf of the State, argues that the quantum of substance recovered
from the possession of the petitioner, prima facie attracts the
prohibitory clause and that even if it be otherwise, he cannot ask
for bail as of right. The learned counsel to support his contention
placed reliance on the cases of Muhammad Ilyas..Vs..The State (
PCr LJ 2003 Peshawar 502), Irshad..Vs..The State (P Cr LJ 2004
Peshawar 56) and the case of Muhammad Khan.Vs..The State ( P
Cr LJ 2003 Peshawar 510).

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the quantum of sentence has to be commensurate

with the quantum of the substance recovered, I doubt that the
petitioner can be awarded the maximum sentence provided by the
Statute. Needless to stress that the Courts, while sitting in
judgment on petition for bail, are not supposed to keep in view the
maximum sentence provided by the Statute but the one which is

Peshawar High Court

 2024
likely to be entailed by the facts and circumstances of the case. It
was held in the case of Amir..Vs..The State (PLD 1972 S.C. 277)
that law is not to be stretched in favour of prosecution, and that any
benefit of doubt even though arising at bail stage is to be conceded
in favour of accused.

5. Apart from this, the detention of the petitioner in

Jail for more than 3 months would also tilt the scales of justice in
favour of bail rather than Jail when the possibility of conclusion of
his trial in near foreseeable is not in sight.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail if he
furnishes bail bonds in the sum of Rs.3,00,000/- (Rs.three lacs)
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistate who is to ensure that the sureties are local,
reliable and men of means.

Dated:15.3.2004. JUDGE.

Peshawar High Court

 2025
The State --- Appellant/Petitioner (s)

Versus
Shad Ali Khan ---Respondent (s)

JUDGMENT
Cr.M. No. 1/2004 Date of hearing 15.03.2004

EJAZ AFZAL KHAN J.- The petitioner through the

instant petition seeks to impugn the order dated 17.11.2003 of the
learned Addl Sessions Judge-III Mardan, whereby he confirmed
the interim pre-arrest bail granted to the respondent in a case
registered against him and others under section ¾ of the Explosive
Substancses Act read with 13 A.O./7 SIAA, Vide FIR No.528
dated 23.9.2003, Police Station Katlang.

2. It was argued by the learned counsel for the

petitioner that in the absence of mala fide which is sine-qua-none
for the grant of pre-arrest bail, the learned Court below has no
jurisdiction to confirm the interim pre-arrest bail granted earlier.

3. As against that, the learned counsel appearing on

behalf of the respondent, argued that in the absence of any
evidence on the record connecting the respondent with the crime,
interim pre-arrest bail earlier granted to him was rightly
confirmed by the Court below. He next argued that where there is
no allegation of mis-use the concession of bail, superior Courts are
always very slow in recalling it.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. A perusal of the record reveals that two other

persons who are similarly placed have been granted post-arrest bail
by the learned Addl Sessions Judge but the petitioner chose to
seek the cancellation of bail granted to the respondent only. When
no distinction can be made between the role assigned to the

Peshawar High Court

 2026
respondent and those who have been granted regular bail, I do not
think, any useful purpose is likely to be served by sending the
respondent to Jail on technical ground when even after his arrest,
he would be released on bail on the ground of consistency. The
case of Muhammad Ramzan..Vs..Zafarullah and another (1986
SCMR 1380) may well be referred.

6. Apart from this, since considerations for grant of

bail are different from those for cancellation thereof, I will not like
to interfere, when no perversity or caprice has been pointed out in
the impugned order and there is also nothing on the record to
show that the respondent after being released on bail mis-used it.

7. For the reasons discussed above, this petition being

mis-conceived is dismissed.

Dated:15.3.2004. JUDGE

Peshawar High Court

 2027
Mst. Gulzara --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 205/2004 Date of hearing 26.03.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against her and 2 others under sections 302/34
PPC., Vide FIR No.397 dated 19.9.2003, Police Station Topi, for
the murder of one Gul Jamroz Khan, seeks her release on bail
mainly on the ground that besides statement of her son which was
recorded after the lapse of 10/11 days, there is no other material on
the record to connect her with the crime notwithstanding she was
subjected to intensive interrogation while being in police custody.

2. As against that, the learned counsel appearing on

behalf of the State argues that the charge against the petitioner
floated from her son who has otherwise no motive whatever to
falsely implicate her, therefore, she is prima facie connected with
the crime and does not deserve bail especially when she remained
absconder for more than 3 months, as fugitive from law looses all
the rights available to him under the procedural as well as
substantive laws notwithstanding the merits of the case.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Without adverting to the merits of the case, the

question whether the act of the petitioner because of her being a
woman could be overt in the commission of the crime even in the
presence of two male co-accused is essentially one of further
inquiry.

5. The argument that a fugitive from law is not entitled

to be released on bail merits of the case notwithstanding will not

Peshawar High Court

 2028
have much force in view of the judgment rendered in the case of
Muhammad Sadiq..Vs..Sadiq and others (PLD 1985 Supreme
(Court 182) as this principle is not applicable to an accused who is
woman, a child or a sick and infirm.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- with two sureties
each in the like amount to the satisfaction of Illaqa/Judl Magistrate
who is to ensure that the sureties are local, reliable and men of
means.

Dated:26.3.2004. JUDGE.

Peshawar High Court

 2029
Fiaz Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 222/2004 Date of hearing 05.04.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9, CNSA, vide FIR
No.768 dated 1.12.2003, Police Station Swabi, for having been
found in possession of 1065 grams chars, seeks his release on bail
mainly on the ground that in view of the quantum of the substance
recovered, the petitioner cannot be awarded a sentence attracting
prohibitory clause.

2. The learned A.A.G. appearing on behalf of the

States opposes the bail by arguing that where the quantity exceeds
one K.G., the offence falls within the ambit of 9 ( c) of the CNSA
as such it prima facie attracts prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the quantum of sentence has to be commensurate

with the quantum of the substance recovered, I doubt that the
petitioner can be awarded the maximum sentence provided by the
Statute as it marginally exceeds one K.G. Needless to say that the
Courts while sitting in judgments on a petition for bail are not
supposed to keep in view the maximum sentence provided by the
Statute but the one which is likely to be entailed by the facts and
circumstances of the case.

5. The fact that the petitioner has remained in Jail for

more than 3 months and there is no prospect of conclusion of his
trial in near future would further tilt the scales of justice in favour
of bail rather than Jail.

Peshawar High Court

 2030
6. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rs. One lac)
with two sureties each in the like amount to the satisfaction of the
learned trial Judge who is to ensure that the sureties are local,
reliable and men of means.

Dated:5.4.2004. JUDGE

Peshawar High Court

 2031
Hunar Gul --- Appellant/Petitioner (s)

Versus
Dadullah --- Respondent (s)

JUDGMENT
Cr.M. No. 153/2004 Date of hearing 16.04.2004

EJAZ AFZAL KHAN J.- The petitioner through the

instant petition seeks cancellation of bail granted to the accused
respondents in a case registered against them under sections
302/34 PPC., vide FIR No.282 dated 12.10.2003, Police Station
Aza Khel.

2. It was argued by the learned counsel for the

petitioner that the accused respondents were directly charged by
the father of the deceased as such they are prima facie linked with
the crime attracting the prohibitory clause and that the learned
Sessions Judge has not exercised his discretion properly by
entertaining the petition for bail directly and granting it, when
nothing extra ordinary was brought on the record to justify this
course.

3. As against that, the learned counsel appearing on

behalf of the accused respondents argued that there is absolutely
no evidence on the record to connect the respondents with the
crime and that mere charge made by a person who is not a witness
of the occurrence will not in any way link them with the crime as
such the impugned order being free from the taint of arbitrariness
or perversity merits no interference.

4. The learned A.A.G. appearing on behalf of the

State, however, does not support the cancellation in view of the
material on the record.

5. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

Peshawar High Court

 2032

6. A perusal of the record reveals that besides the

statement of the father of the deceased who is not an eye witness of
the occurrence no other material has so far been collected by the
Investigating Agency as could connect the respondents with the
crime notwithstanding that they remained in police custody for
some time. When so, I do not feel inclined to recall the bail granted
to the respondents even though I do not approve the direct
entertainment of the petition for bail by the Court of Sessions,
when nothing extra ordinary was brought on the record to justify
this course.

7. For the reasons discussed above, this petition being

without merit is dismissed.

Dated:16.4.2004. JUDGE

Peshawar High Court

 2033
Daud Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 290/2004 Date of hearing 16.04.2004

EJAZ AFZAL KHAN J.- The who is charged in a case

registered against him under article ¾ of the Prohibition
(Enforcement of Hadd) Order, 1979, vide FIR No.63 dated
12.2.2004, Police Station Lahor, for having been found in
possession of 19 grams of heroin, seeks his release on bail mainly
on the ground that in view of section 76 of the CNSA, its
provisions are having over-riding effect on all other laws for the
time being in force, therefore, the Prohibition Order is not
applicable and that even if the recovery so effected from the
petitioner is taken to be true it being covered by section 9 (a) of the
CNSA, and being punishable with imprisonment for 2 years or fine
or both will be bailable.

2. As against that, the learned Additional Advocate

General, argues that a series of cases has been registered against
the petitioner and as such his enlargement on bail would amount to
giving him a carte blanche for repeating similar crimes, therefore,
he does not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Since the provisions of CNSA are having over-

riding effect on all other laws for the time being in force, the
Prohibition Order will not be applicable, and as the quantum of the
substance recovered is less than 100 grams, it being covered by
section 9 (a) of the Act and being punishable with imprisonment
for 2 years or fine or both will be bailable.

Peshawar High Court

 2034
5. The argument that release of the petitioner on bail
when a series of similar cases has been registered against him,
would amount to giving him a carte blanche for repeating similar
crimes would have had some force, had the offence committed by
the petitioner been non-bailable.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rs.two lacs)
with two sureties each in the like amount to the satisfaction of the
learned trial Judge who is to ensure that the sureties are local,
reliable and men of means.

Dated:16.4.2004. J U D G E.

Peshawar High Court

 2035
Ishtiaq --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 305/2004 Date of hearing 23.04.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and one another under sections
6,7,8 and 9 of the CNSA, 1997, Vide FIR No.10 dated 28.2.2004,
Police Station Investigation and Prosecution Branch (Customs)
Peshawar, seeks his release on bail mainly on the ground that there
is nothing on the record to show that the petitioner was in
conscious possession of the incriminating substance allegedly
recovered from the vehicle boarded by him at the relevant time.

2. As against that, Mr.Hamid Farooq Durrani, DAG,

appearing on behalf of the State, argues that the petitioner is prima
facie linked with the crime attracting prohibitory clause, therefore,
he is not entitled to be released on bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the contention raised by the learned counsel for

the petitioner cannot be considered without deeper appreciation of
evidence, it will not be proper to comment thereon when he is
prima facie linked with the crime attracting prohibitory clause and
that the case is also ripe for being sent to the trial Court.

5. For the reasons discussed above, this petition is

dismissed. However, the Prosecution is directed to send this case to
the learned trial Court within 15 days and the learned trial Court is
directed to conclude it within a period of 4 months positively
failing which the petitioner may, if so advised, approach this Court

Peshawar High Court

 2036
for bail. The record of the case be sent to the Prosecution Branch
as soon as possible but not later than 3 days.

Dated:23.4.2004. JUDGE.

Peshawar High Court

 2037
Nawaz --- Appellant/Petitioner (s)
Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 306/2005 Date of hearing 25.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA, vide FIR
No.666 dated 4.11.2004 Police Station Lahor District Swabi, when
failed to get the concession of bail from the lower forums, moved
this Court therefor.

2. It was argued by the learned counsel for the

petitioner that where the incriminating substance was not
recovered from the possession of the petitioner, he could not be
linked with its recovery simply because the Police on its
investigation came to know that it was he who was carrying it, that
too, when no witness disclosing his name was examined.

3. As against that, Miss Nilam Khan, learned counsel

appearing on behalf of the State, opposed the grant of bail by
arguing that though none has been examined by the Police naming
the petitioner, yet his involvement in the commission of the crime
cannot be doubted when there is nothing on the record to show
that he was implicated because of any ill will or improper motive
on the part of the Police.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. How did the Police investigating the case come to

know from a distance of 300 paces that it was the petitioner who
was carrying the bag containing the narcotic, is a question
requiring further inquiry, that too, when none naming him has been
examined so far.

Peshawar High Court

 2038
6. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail,
provided, he furnishes bail bonds in the sum of Rs.3,00,000/-(Rs.
Three Lacs) with two sureties each in the like amount to the
satisfaction of the Illaqa/ Judicial Magistrate who is to ensure that
the sureties are local, reliable and men of means.

Dated:25.4.2005 JUDGE

Peshawar High Court

 2039
Jehangir Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 303/2004 Date of hearing 30.04.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections
420/465/467/468/471/197/198 PPC., vide FIR No.209 dated
16.12.2003, Police Station Sakhakot, seeks his release on bail
mainly on the ground that none of the offences he is charged with
attracts prohibitory clause and that it is yet to be determined
whether he cheated any one or he himself was cheated.

2. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant argues that the petitioner is prima facie linked with
the offences he is charged with and as such he is not entitled to be
released on bail as one of them being punishable with
imprisonment for life or 10 years attracts prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the agreement on the basis whereof the

instant case has been registered could cause any harm to the other
co-owners when the petitioner, on the inducement of another co-
accused, has also parted with a big chunk of money. Similarly
whether the petitioner cheated the complainant or he himself was
cheated is a question which requires further inquiry.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail if he
furnishes bail bonds in the sum of Rs.4,00,000/- (Rs. Four lacs)
with two sureties each in the like amount to the satisfaction of the

Peshawar High Court

 2040
learned Illaqa Qazi/Judl Magistrate who is to ensure that the
sureties are local, reliable and men of means.

Dated:30.4.2004. JUDGE

Peshawar High Court

 2041
Sajjad Akhtar --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 287/2004 Date of hearing 11.06.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and many others under sections
302/324/427/148/149 PPC. vide FIR No.120 dated 2.8.2003,
Police Station Latamber, when failed to get the concession of bail
from the lower forums, asked therefor by moving this Court.

2. It was argued by the learned counsel for the

petitioner that the petitioner is a minor; that there is no evidence on
the record to connect him with the crime; that his confessional
statement being involuntary as well as ex-culpatory is not
sufficient to connect him with the crime, especially when no
identification parade has so far been held to prove that he was from
amongst those five who have participated in the commission of the
crime.

3. As against that, the learned State counsel assisted

by the learned counsel for the complainant argued that the
confessional statement of the petitioner inasmuch as it divulges his
participation in the pre-concert and conspiracy leading to the
commission of the crime is in-culpatory in nature, therefore, he is
prima facie linked with the crime and failure of the Investigating
Agency to hold the identification parade will not be of any
consequence, when he owned his crime in his confessional
statement. The mere fact, that the petitioner is a minor, he
concluded, will not entitle him to be released on bail as of right.
The learned counsel to support his contention placed reliance on
the case of Arshad Iqbal..Vs..Naeem Khan and another (PLD 2004
Peshawar 11).

Peshawar High Court

 2042
4. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

5. The record reveals that the petitioner was not

charged in the FIR. His name for the first time appeared in a police
statement of his co-accused, Munawar Khan, which was recorded
after the lapse of more than 3 months of the occurrence. It is
pertinent to note that the name of the said co-accused too has not
been mentioned as an assailant in the FIR.

6. No doubt the petitioner on being produced before a

Judicial Magistrate allegedly made a confessional statement, but
whether the facts divulged by him in his confessional statement are
sufficient to link him with the crime when he has stated that he did
not fire at any of the deceased or injured and no identification
parade has so far been held to establish his identity as one of those
five assailants who have been mentioned in the FIR to be present
on the spot at the relevant time are the questions which essentially
require further inquiry. The fact that the petitioner is not an adult,
which has not been disputed by the other side, will also tilt the
scales of justice in his favour and thus make out a case for his
being released on bail.
7. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.3,00,000/- (Rs. three lacs)
with two sureties each in the like amount to the satisfaction of
Illaqa/ Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:11.6.2004. J U D G E.

Peshawar High Court

 2043
Rozmeen Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 538/2004 Date of hearing 11.06.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA read with
article 24 of the Prohibition ( Enforcement of Hadd ) Order, 1979,
vide FIR No.71 29.4.2004, Police Station Batkhela, for having
been found in possession of 360 grams of chars, seeks his release
on bail mainly on the ground that the offence being covered by 9
(b) does not attract the prohibitory clause as it is punishable with
seven years imprisonment.

2. As against that, the learned counsel appearing on

behalf of the State, argues that the petitioner is a previous convict
as such he does not deserve the concession of bail notwithstanding
the fact that the case being punishable with seven years
imprisonment does not attract the prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the offence the petitioner is charged with does not

attract the prohibitory clause, I do not see any strong reason to
with-hold the concession of bail when grant of bail in such like
case is a rule and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.10,000/- with two sureties
each in the like amount to the satisfaction of Illaqa/Judl Magistrate

Peshawar High Court

 2044
who is to ensure that the sureties are local, reliable and men of
means.

Dated:11.6.2004. JUDGE.

Peshawar High Court

 2045
Mujahid Shah --- Appellant/Petitioner (s)
Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 503/2004 Date of hearing 14.06.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9
CNSA, 1997, vide FIR No.189 dated 15.4.2004, Police Station
Pishtakhara, for having been found in possession of 4 K.Gs. chars,
seeks his release on bail mainly on the ground that in view of the
quantum of the substance recovered, he may not be awarded the
maximum sentence provided by the Statute.

2. As against that, the learned counsel appearing on

behalf of the State, argues that the cancer of narcotics is about to
spoil the entire fabric of our society, therefore, the petitioner does
not deserve any leniency, even if it is assumed that the quantum of
the substance recovered may not entail a sentence attracting
prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the magnitude of criminal liability has to be

proportionate with the magnitude of the crime, I doubt that the
petitioner can be awarded a sentence attracting prohibitory clause
for possessing 4 K.Gs. of chars. Needless to say that the Courts
while considering a prayer for the enlargement of an accused on
bail, may not keep in view the maximum sentence provided by the
Statute but the one which is likely to be awarded in a given facts
and circumstances of the case.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.4,00,000/- (Rs. Four lacs)

Peshawar High Court

 2046
with two sureties each in the like amount to the satisfaction of the
learned trial Court who is to ensure that the sureties are local,
reliable and men of means.

Dated:14.6.2004. JUDGE.

Peshawar High Court

 2047
Sarfaraz Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 520/2004 Date of hearing 14.06.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA, 1997, vide
FIR No.56 dated 6.4.2004, Police Station IDS Gadoon Swabi, for
having been found in possession of 1500 grams of chars, seeks his
release on bail mainly on the ground that in view of the quantum of
the substance recovered, he may not be awarded a sentence
attracting prohibitory clause.

2. Against that, the learned counsel appearing on

behalf of the State, argues that the menace of narcotics has
enveloped the entire society in its evil fold, therefore, regardless
altogether of the quantum of the substance recovered such
offenders are to be treated with an iron hand.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Since the quantum of substance has to be

commensurate with the quantum of the substance recovered, I
doubt that the petitioner can be awarded a sentence attracting
prohibitory clause. Needless to say that the Courts while sitting in
judgment on a petition for bail are not supposed to keep in view
the maximum sentence provided by the Statute but the one which
is likely to be entailed by the facts and circumstances of the case.
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.50,000/- (Rs. Fifty thousand)
with two sureties each in the like amount to the satisfaction of

Peshawar High Court

 2048
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:14.6.2004. JUDGE.

Peshawar High Court

 2049
Tariq Hussain --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 544/2004 Date of hearing 14.06.2004

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under sections
419,420,468,471 PPC., ¾ HTO, 2002, 17,18 E.O. 1979 and 6
Passport Act, Vide FIR No.11 dated 29.4.2004, Police Station FIA
(Crime) Peshawar, seek their release on bail mainly on the ground
that none of the offences they are charged with attracts prohibitory
clause.

2. As against that, the learned D.A.G. appearing on

behalf of the State argued that a good number of forged passports
have been recovered from the possession of the petitioners,
therefore, they are prima facie connected with the crime and that
the mere fact that none of the offences they are charged with
attracts prohibitory clause, will not entitle them to be released on
bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As none of the offences the petitioners are charged

with is punishable with more than seven years imprisonment, I do
not see any strong reason to withhold the concession of bail, when
grant of bail in such like cases is a rule and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail, if
they furnish bail bonds in the sum of Rs.10,00,000/- (Rs.Ten lacs)
with two sureties each in the like amount to the satisfaction of the

Peshawar High Court

 2050
learned trial Court who is to ensure that the sureties are local,
reliable and men of means.

Dated:14.6.2004. JUDGE.

Peshawar High Court

 2051
Abdur Rahim --- Appellant/Petitioner (s)
Versus
Pervaiz --- Respondent (s)

JUDGMENT
Cr.M. No. 481/2004 Date of hearing 18.06.2004

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under sections
324,148,149 PPC., vide FIR No.172 dated 23.3.2004, Police
Station Kabbal District Swat, for having been fired ineffective
shots on the complainant and the P.Ws. seek their release on bail
mainly on the ground that it is yet to be determined whether they
shared common object with their co-accused who are charged for
having attempted at the life of Asghar Ali.

2. As against that, the learned counsel appearing on

behalf of the complainant, argues that a series of criminal cases has
been registered against the petitioners which shows that they are
desperados as such they do not deserve the concession of bail on
the sole ground that the role assigned to them is that of firing of
ineffective shots.

3. The learned A.A.G. appearing on behalf of the State

opposes the bail but half heartedly.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Whether the petitioners shared common object and as

such could be held vicariously responsible for the act done by their
co-accused is a question which requires further inquiry.

6. For the reasons discussed above, the petition is

allowed and the petitioners are directed to be released on bail, if
they furnish bail bonds in the sum of Rs.1.00,000/- (Rs. One lac)
with two sureties each in the like amount to the satisfaction of

Peshawar High Court

 2052
Illaqa/Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:18.6.2004. JUDGE

Peshawar High Court

 2053
Fazal Raziq --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 534/2004 Date of hearing 18.06.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 417,465,468,471
PPC., vide FIR No.65 dated 12.4.2004, Police Station Batkhela,
seeks his release on bail mainly on the ground that none of the
offences he is charged with falls within the ambit of prohibitory
clause.

2. As against that, the learned counsel appearing on

behalf of the State, argues that the petitioner has committed fraud
with the Court as such he does not deserve the concession of bail
notwithstanding the fact that the offences he is charged with do not
attract prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As none of the offences the petitioner is charged

with attracts prohibitory clause, I do not see any strong reason to
withhold the concession of bail when grant of bail in such like case
is a rule and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.50,000/- (Rs. Fifty thousand)
with two sureties each in the like amount to the satisfaction of
Illaqa/Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:18.6.2004. JUDGE

Peshawar High Court

 2054
Fida Gul --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 508/2004 Date of hearing 18.06.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 (c) CNSA, vide
FIR No.378 dated 19.4.2004, Police Station Badbher Peshawar, for
having been found in possession of 5 K.Gs of chars, seeks his
release on bail mainly on the ground that the name of the petitioner
does not find mention in the recovery memo, therefore, the very
recovery is doubtful and that in view of the quantum of the
substance recovered the petitioner may not be awarded a sentence
attracting prohibitory clause.

2. As against that, the learned A.A.G. appearing on

behalf of the State, argues that the menace of narcotics has
spread like a wild fire and as such is about to envelope the entire
society in its evil fold, therefore, such accused are to be treated
with iron hand regardless altogether of any lapse in investigation or
the quantum of the sentence likely to be awarded in the
circumstances of the case.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether in the circumstances of the case, mere

failure to mention the name of the accused in the recovery memo,
would create any dent in the prosecution version and in view of the
quantum of the substance recovered can be awarded a sentence
attracting prohibitory clause, are the questions which essentially
require further inquiry.

Peshawar High Court

 2055
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.3,00,000/- (Rs. 3 lacs) with
two sureties each in the like amount to the satisfaction of the
learned trial Court who is to ensure that the sureties are local,
reliable and men of means.

Dated:18.6.2004. JUDGE.

Peshawar High Court

 2056
Bacha Hussain --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 531/2004 Date of hearing 18.06.2004

EJAZ AFZAL KHAN J.- Bacha Hussain, petititioner in

Cr.Misc: No.531 of 2004 and Mehbubur Rehman, petitioner in
Cr.Misc: No.607 of 2004 who are charged in a case registered
against them and others under section 9 CNSA, vide FIR No.261
dated 4.4.2004, when failed to get the concession of bail from the
Courts below, ask therefor by moving this Court.

2. It was argued by the learned counsel on behalf of

Bacha Hussain, petitioner in Cr.Misc: No.531/2004 that the
petitioner was not traveling in the vehicle wherefrom the
incriminating material was recovered, therefore, his complicity in
the crime requires further inquiry particularly when the only
evidence against him is a confessional statement of his co-accused
Ali Muhammad.

3. The learned counsel appearing on behalf Mehbubur

Rehman, petitioner in Cr.Misc: No.607/2004 argued that the
incriminating substance was recovered from secret cavities of the
vehicle driven by Ali Muhammad, co-accused, therefore, the fact
whether the petitioner was conscious of the aforesaid carriage in
the vehicle is a question which requires further inquiry.

4. As against that, the learned A.A.G. appearing on

behalf of the State, argued that evidence on the record is sufficient
to connect both the petitioners with the crime as such they do not
deserve the concession of bail.

5. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

Peshawar High Court

 2057
6. The only evidence which connects the accused-
petitioner Bacha Hussain with the crime is that of confessional
statement made by his co-accused which is not so far corroborated
by any material on the record. Whether it would be sufficient in the
circumstances of the case to connect the petitioner with the crime
is a question which requires further inquiry.

7. The case of petitioner Mehbubur Rehman would

also be one of further inquiry when the data so far available does
not conclusively show that he was conscious of the incriminating
substance carried in the vehicle, he was traveling in at the time of
its recovery.

8. For the reasons discussed above, these petitions are

allowed and the petitioners are directed to be released on bail if
they furnish bail bonds in the sum of Rs.5,00,000/- (Rs. Five lacs)
with two sureties each in the like amount to the satisfaction of the
learned trial Court who is to ensure that the sureties are local,
reliable and men of means.

Dated:18.6.2004. JUDGE.

Peshawar High Court

 2058
Fahim Afzal --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 595/2004 Date of hearing 05.07.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 324 PPC., vide FIR
No.154 dated 9.4.2004, Police Station Cantt Kohat, seeks his
release on bail mainly on the ground that the matter has since been
patched up between the parties and that the complainant is not
interested in opposing the grant of bail to him.

2. The complainant in person alongwith her counsel

present who too affirmed the above stated position and has thus no
objection to the release of the petitioner on bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the matter has been patched up between the

parties and the complainant does not oppose the request of the
petitioner for bail, this petition is allowed and he is directed to be
released on bail, if he furnishes bail bonds in the sum of
Rs.50,000/- with two sureties each in the like amount to the
satisfaction of the learned Illaqa/Judicial Magistrate who is to
ensure that the sureties are local, reliable and men of means.

Dated:5.7.2004. JUDGE

Peshawar High Court

 2059
Said Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 642/2004 Date of hearing 05.07.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under Article ¾ of the Prohibition
(Enforcement of Hadd) Ordinance, 1979, 13 A.O. read with
section 325 PPC. , vide FIR No.244 dated 28.5.2004, Police
Station Yakatoot, seeks his release on bail mainly on the ground
that none of the offences he is charged attracts prohibitory clause.

2. As against that, the learned counsel appearing on

behalf of the State argues that where the substance exceeds 10
grams in case of heroin, the offence in view of article ¾ of the
Order being punishable with death or imprisonment for life,
attracts prohibitory clause, therefore, the petitioner does not
deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the CNSA in view of its provisions contained in

section 76, will have overriding effect on all other laws for the
time being in force, I am afraid, none of the provisions contained
in Prohibition Order shall be applicable and that this case being
covered by section 9 (a) of the Act, will be bailable as the
punishment prescribed thereunder for possessing heroin upto 100
grams or less, is two years imprisonment or fine or both.

5. As far as the other sections, as mentioned above, are

concerned, those too are bailable. When so, I do not see any
reason, to withhold the concession of bail to the petitioner when he
is entitled thereto as of right.

Peshawar High Court

 2060
6. For the reasons discussed above, this petition is
allowed and the ,petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.1,00,000/- (Rs.One lac) with
two sureties each in the like amount to the satisfaction of the
learned trial Judge who is to ensure that the sureties are local,
reliable and men of means.

Dated:5.7.2004. JUDGE

Peshawar High Court

 2061
Nadir Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 530/2004 Date of hearing 12.07.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and 5 others under sections
302/109/120-B/34 PPC. read with section 512 Cr.P.C./7 ATA, vide
FIR No.337 dated 23.11.2000, Police Station Kabli Peshawar,
when failed to get the concession of bail from the lower forums
asked therefor by moving this Court.

2. It was argued by the learned counsel for the

petitioner that the petitioner has not been charged in the FIR; that
those who were suspected therein to have committed the crime
were not only identified in the identification parade but also
accepted their complicity in the crime in their joint confessional
statement. He next argued that though the charge against the
petitioner springs from the above mentioned confessional
statement but this will not be sufficient to link the petitioner with
the crime as it besides being ex-culpatory in nature, receives no
support from any other evidence on the record.

3. As against that, the learned AAG for State assisted

by the learned counsel for the complainant, argued that evidence
on the record is sufficient to connect the petitioner with the crime
especially when it is corroborated by prolonged noticeable
unexplained abscondence of the accused.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Whether the version given in the joint confessional

statement of the co-accused in the absence of any other

Peshawar High Court

 2062
corroborative evidence which is so far wanting, is sufficient to link
the petitioner with the crime when it is exculpatory as well, is a
question which requires further inquiry

6. No doubt abscondence can be taken as

corroborative of the charge but where the very charge requires
further inquiry, I do not think, it will be of much help to the
prosecution, at least at this stage.

7. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released, if he furnishes
bail bonds in the sum of Rs.10,00,000/- (Rs. Ten lacs) with two
sureties each in the like amount to the satisfaction of the Illaqa/Judl
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:12.7.2004. JUDGE

Peshawar High Court

 2063
Shamsher --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 665/2004 Date of hearing 16.07.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA read with
articles ¾ of the Prohibition ( Enforcement of Hadd ) Order, 1979,
for having been found in possession of 1200 grams of opium, vide
FIR No.229 dated 9.4.2004, Police Station Saro Killi, seeks his
release on bail mainly on the ground that in view of the quantum of
substance recovered, the petitioner may not be awarded a sentence
attracting prohibitory clause.

2. As against that, the learned counsel appearing on

behalf of the State, argues that as the persons dealing with
narcotics are the enemies of the society in general and youths in
particular, they do not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the quantum of the substance recovered

marginally exceeds thousand grams, I doubt that the petitioner can
be awarded a sentence attracting prohibitory clause, moreso when,
the magnitude of liability follows the magnitude of the crime.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.1,00,000/- (Rs. One lac) with
two sureties each in the like amount to the satisfaction of the
learned trial Judge who is to ensure that the sureties are local,
reliable and men of means.

Dated:16.7.2004. JUDGE

Peshawar High Court

 2064
Sareer Ahmad --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 732/2004 Date of hearing 16.07.2004

EJAZ AFZAL KHAN J.- The petitioner through

Cr.Misc: No.732 and 733 of 2004 seeks cancellation of bail
granted to the respondents in a case registered against them under
sections 324/34 PPC., vide FIR No.196 dated 16.4.2004, Police
Station Mathra, mainly on the ground that they are directly charged
for firing effective shot on him and that they after having been
released on bail, mis-used it by holding out threats thereto.

2. I have gone through the record carefully and

considered the submissions of the learned counsel for the
petitioner.

3. Though according to the FIR, respondents Shah

Hussan and Shah Hussain came armed on the spot but no role
whatever has been attributed to them, therefore, they have rightly
been released on bail. Even the case of respondent Sarwar Shah is
not of a nature as could call for the cancellation of his bail
particularly when the fire-arm injury attributed to him besides
being simple in nature is on the non-vital part of the body.

4. Apart from this, the fact that the respondents did not
repeat fire at the petitioner, notwithstanding that he was at the
mercy of the former will make the case arguable as far as the
intention to kill is concerned, therefore, I do not think, that the
learned Addl Sessions Judge has flouted any provision of law
regulating the grant or refusal of bail.

Peshawar High Court

 2065
5. For the reasons disc used above, these petitions
being without substance are dismissed in limine.

Dated:16.7.2004. JUDGE

Peshawar High Court

 2066
Ishraq Ali --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 772/2004 Date of hearing 16.07.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case under section 9 CNSA for having been found in
possession of one K.G. of chars, vide FIR No.5 dated 8.3.2004,
Police Station ANF Peshawar, seeks his release on bail on the
ground that the offence being punishable with 7 years
imprisonment does not attract prohibitory clause and that despite
direction of the Court the trial has not been concluded within the
stipulated time..

2. As against that, the learned counsel appearing on

behalf of the State, argues that the delay in trial occurred because
the file was not sent to the P.S. well within time, therefore, no
premium can be conceded in favour of the petitioner on account of
a lapse of the office.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As despite direction of this Court the trial has not

been concluded within the stipulated period, I do not see any
strong reason to withhold the concession of bail, moreso when the
offence being punishable with 7 years imprisonment does not
attract prohibitory clause.

5. The argument that delay in trial occurred due to a

lapse on the part of the office, therefore, no premium can be
conceded in favour of the petitioner on that count has not
impressed me to the least as this order was made in the presence of

Peshawar High Court

 2067
the learned State counsel and as such he could have ensured the
early dispatch of the file from this Court to the P.S.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.1,00,000/- (Rs. One lac) with
two sureties each in the like amount to the satisfaction of the
learned trial Judge who is to ensure that the sureties are local,
reliable and men of means.

Dated:16.7.2004. JUDGE

Peshawar High Court

 2068
Taz Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 598/2004 Date of hearing 17.09.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 9 of CNCA, 1997
read with articles ¾ of the Prohibition (Enforcement of Hadd)
Order, 1979, vide FIR 63 dated 26.4.2004, Police Station Railway
Peshawar Cantt., for having been found in possession of 5 K.Gs. of
chars, seeks his release on bail mainly on the ground that the
Railway Police is not competent to make search and seizure of
narcotic, therefore, the very search and seizure for having been
conducted by them without lawful authority will not have any
effect. Relies on the judgment of this Court rendered in the case of
Mst.Hassan Zari..Vs..The State (Cr.Misc: No.380/2003) decided
on 30.5.2003 and the case of Nasrullah..Vs..The State (PLD 2001
Peshawar 152).

2. As against that, the learned D.A.G. opposes the bail

by referring to SRO No.597(1)/97 dated 7.7.1997, by arguing that
the Railway Police has all the powers vested in the Anti Narcotic
Force, therefore, the petitioner does not deserve the concession of
bail on this ground, more so when he has been found in possession
of 5 K.Gs. of chars which being punishable with imprisonment for
life attracts prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. It has already been held in the case of Mst.Hassan

Zari..Vs.. The State (Supra) that it is debatable whether the
Railway Police has been authorized by the Federal Government to
make search and seizure, therefore, the case will be prima facie

Peshawar High Court

 2069
arguable for the purpose of bail in the absence of anything in black
and white showing the contrary.

5. Whether in view of the quantum of the substance

recovered, the petitioner could be awarded maximum sentence
provided by the Statute would be another factor which would tilt
the scale of justice in favour of the petitioner in so far as his prayer
for his enlargement on bail is concerned.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail,
provided, he furnishes bail bond in the sum of Rs.5,00,000/-
(Rs.Five lacs) with two sureties each in the like amount to the
satisfaction of the Illaqa/ Judicial Magistrate who is to ensure that
the sureties are local, reliable and men of means.

Dated:17.9.2004. JUDGE

Peshawar High Court

 2070
Rehmatullah --- Appellant/Petitioner (s)

Versus
Shandi Gul --- Respondent (s)

JUDGMENT
Cr.M. No. 859/2004 Date of hearing 17.09.2004

EJAZ AFZAL KHAN J.- The petitioners who are

charged in case registered against them under section 17(3) of the
Offences Against Property (Enforcement of Hudood) Ordinance,
1979 read with section 411 PPC., Vide FIR No.318 dated
18.6.2004, Police Station Yakatoot, seek their release on bail
mainly on the ground that the complainant of the case on having
been satisfied by them does not charge them any more and that
their identification in the identification parade held under the
supervision of the Magistrate will not be of any consequence when
the description of their features in the FIR is absent.

2. As against that, the learned counsel appearing on

behalf of the State, argues that the petitioners beside being
identified in the identification parade have also been found in
possession of incriminating material, therefore, they being prima
facie connected with the crime will not be entitled to be released
on bail notwithstanding their exoneration by the complainant.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Where the complainant does not charge the

petitioners as per his statement recorded today in the Court today, I
do not think, the concession of bail can be withheld to the
petitioners when the description of their features in the FIR is
conspicuous by its absence.

Peshawar High Court

 2071
5. For the reasons discussed above, this petition is
allowed and the petitioners are directed to be released on bail, if
they furnish bail bonds in the sum of Rs.5,00,000/- (Rs.Five lacs)
with two sureties each in the like amount to the satisfaction of the
Illaqa/ Judl: Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:17.9.2004. JUDGE

Peshawar High Court

 2072
Mst. Asmat Ara --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1003/2004 Date of hearing 17.09.2004

EJAZ AFZAL KHAN J.- Mst Asmat Ara petitioner in

Cr.Misc. No.1003/2004 and Ghaffar Ali alias Ghaffarai, petitioner
in Cr.Misc. No.1004/2004 who are charged in case registered
against them under sections 5/10 of the Offences of Zina
(Enforcement of Hudood) Ordinance, 1979, vide FIR No.549 dated
5.7.2004, Police Station Prang, seek their release on bail mainly on
the ground that they have become husband and wife by virtue of
their marriage solemnized by their parents on their behalf as such
their detention in Jail is not likely to serve any purpose.

2. As against that, the learned counsel appearing on

behalf of the State argues that the offences the petitioners are
charged with are not compoundable, therefore, they are not entitled
to be released on bail, even though a marriage between them has
been solemnized.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record reveals that marriage between the

petitioners has been solemnized through their parents and
agreement in this behalf has been reduced into writing wherein all
the requisite modalities of a valid marriage have been settled. The
learned counsel appearing on behalf of the petitioners also affirm
the above stated position. When that being the case, I do not think,
any useful purpose is likely to be served by with-holding the
concession of bail to the petitioners when the settlement between
them aims at their healthy rehabilitation in the society.

Peshawar High Court

 2073
5. Even otherwise there does not seem to be sufficient
evidence on the record to connect the petitioners with the crime
except the FIR which being lodged by an accused is no better than
a confession of an accused made to a Police Officer, unless of
course, it is owned by her at the time of framing the charge or
recording the statement of accused under section 342 of the
Cr.P.C.

6. For the reasons discussed above, both the petitions

are allowed and the petitioners are directed to be released on bail,
if they furnish bail bonds in the sum of Rs.10,000/- with two
sureties each in the like amount to the satisfaction of the Illaqa/
Judicial Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated: 17.9.2004. JUDGE

Peshawar High Court

 2074
Khisro --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 771/2004 Date of hearing 17.09.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 324 PPC. , Vide
FIR 283 dated 4.4.2004 Police Station Prang Charsadda, seeks his
release on bail mainly on the ground that the occurrence is a
sudden affair and that in the absence repetition of fire, it is yet to
be determined into whether the petitioner intended the death of the
victim.

2. As against that, the learned counsel appearing on

behalf of the State and complainant argued that the occurrence is
not sudden and that the very use of lethal weapon and the seat of
injury on the person of the complainant clearly indicate that the
former intended death of the latter, therefore, he being prima facie
connected with the crime does deserve the concession of bail,
especially when medical evidence also supports the ocular account
furnished by the complainant.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record reveals that the occurrence was over

without the intervention of any body, yet the petitioner did not
repeat fire notwithstanding the fact that the complainant was at the
mercy of the former. Whether in the circumstances of the case, the
petitioner really intended the death of the victim is a question
which requires further inquiry.

Peshawar High Court

 2075
5. The fact that the petitioner is in Jail for more than 5
months and there is no prospect of early disposal of his case,
would be another factor which would tilt the scales of justice in
favour of bail rather than Jail.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.2,00,000/- (Rs.two lacs) with
two sureties each in the like amount to the satisfaction of Illaqa/
Judl: Magistrate who is to ensure that the sureties are local, reliable
and men of means.

Dated:17.9.2004. JUDGE

Peshawar High Court

 2076
Rashid Naseer Siddique --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 645/2004 Date of hearing 20.09.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 302/324 PPC. read
with section 13 A..O., vide FIR No.419 dated 28.5.2003, Police
Station Town, seeks his release on bail on the ground that the
incident has not been witnessed by any body and that the charge
against him has been fastened on him on the basis of suspicion.

2. As against that, the learned counsel appearing on

behalf of the State and the complainant argued that all the
witnesses charged the petitioner for committing three murders and
murderous assault on the injured P.Ws., therefore, he does not
deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Though every bit of this case is radiating mystery,

all the same, the petitioner is charged for having enacted this
tragedy, therefore, it will not be in the fitness of thing to consider
his prayer for his release on bail at least at this stage.

5. For the reasons discussed above, this petition being

without substance is dismissed. However, the Prosecution is
directed to send the case for trial to the Court of competent
jurisdiction within 15 days which is directed to conclude it within a
period of six months failing which the petitioner may, if so
advised, approach this Court for bail.

Dated: 20.9.2004. JUDGE

Peshawar High Court

 2077
Muharram Gul --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 945/2004 Date of hearing 20.09.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 11/16 of the
Offences of Zina (Enforcement of Hudood) Ordinance, 1979, vide
FIR No.393 dated 15.6.2004, Police Station Chamkani, seeks his
release on bail mainly on the ground that he has contacted
marriage with the abductee so called with her consent and that it
was more of a case of elopement than abduction .

2. As against that, the learned counsel appearing on

behalf of the State and the complainant argued that the lady was
abducted for the purpose of marriage by the petitioner mis-using
the trust reposed in him by the ,parents of the abductee as he often
took her from home to school and back there from on his vehicle.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. A tentative assessment of the data so far available

on the record would show that the petitioner is prima facie
connected with the crime, as such it is too early to consider his
prayer for bail. This petition being without merit is thus dismissed.
However, the Prosecution is directed to send this case to the trial
Court within 15 days which is directed to conclude it within a
period of 3 months, failing which the petitioner may, if so advised,
approach this Court for bail.

Dated: 20.9.2004. JUDGE

Peshawar High Court

 2078
Liaqat Ali --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1011/2004 Date of hearing 20.09.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under articles ¾ of the Prohibition
(Enforcement of Hadd) Order, 1979, vide FIR NKo.650 dated
29.6.2004 Police Station Badabair Peshawar for having been found
in possession of 3 K.Gs. of chars mainly on the ground that search,
seizure and investigation of the case were made by an un-
authorized person and that in view of the quantum of the substance
recovered, he may not be awarded maximum sentence provided by
the Statute.

2. As against that, the learned counsel appearing on

behalf of the State opposes the bail by arguing that the petitioner is
prima facie connected with a crime of smuggling attracting
prohibitory clause in view of section 9 of the CNSA., therefore,, he
does not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the quantum of sentence has to be commensurate

with the quantum of substance recovered, I doubt that the
petitioner can be awarded a sentence attracting prohibitory clause.

5. Quite apart from this, the fact that search, seizure

and investigation of the case were conducted by a person who is
not authorized under the law in view of section 21 of the CNSA
would constitute another ground for release of the petitioner on
bail. The case of Nasrullah..Vs..The State ( PLD 2001 Peshawar
152) may be referred with advantage.

Peshawar High Court

 2079
6. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail,
provide, he furnishes bail bond in the sum of Rs.1,0,000/- (Rs.
One lac) with two sureties each in the like amount to the
satisfaction of the Illaqa/ Judl Magistaate3 who is to ensure that the
sureties are local, reliable and men of means.

Dated: 20.9.2004. JUDGE

Peshawar High Court

 2080
Mst. Naeema --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 836/2004 Date of hearing 24.09.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against her under sections 302/109 PPC., vide
FIR No.144 dated 18.6.2004, Police Station Tarnab, seeks her
release on bail mainly on the ground that she is carrying of foetus
of 7 months in her womb and as such she deserves the concession
of bail.

2. As against that, the learned DAG assisted by the

learned counsel for the complainant, opposes the bail by arguing
that she is charged for having committed a heinous crime,
therefore, she does not deserve the concession of bail as the word
used in the proviso to section 497 Cr.P.C. is “may” rather than
“shall” .

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As it has been confirmed by the report of the

Radiologist that the petitioner is carrying of foetus of seven months
in her womb , I do not think, heaven will fall on the earth if she is
released on bail, moreso when the un-born babe carried in her
womb has every right to be born free outside the gallows.

5. For the reasons discussed above, this petition is

allowed and the petitioner is direct ed to be released on bail, if she
furnishes bail bond in the sum of Rs.3,00,000/- (Rs.Three lacs)
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate who is to ensure that the sureties are local,
reliable and men of means.
Peshawar High Court
 2081

Dated:24.9.2004. JUDGE

Peshawar High Court

 2082
Qayyum Ullah --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 935/2004 Date of hearing 24.09.2004

EJAZ AFZAL KHAN J.- Qayum Ullah, petitioner

herein, who is charged in a case registered against him under
sections 377 PPC. read with section 12 of the Offences of Zina
(Enforcement of Hudood) Ordinance, 1979, vide FIR No.97 dated
28.4.2004, Police Station Latumber, seeks his release on bail
mainly on the ground that the allegations leveled against him in the
FIR are not borne out by the medico-legal report and the report of
the Forensic Science Laboratory.

2. As against that, the learned counsel appearing for

the State assisted by the learned counsel for the complainant,
argues that where there is no motive to fling a false charge against
the petitioner, there is no reason to doubt the involvement of the
petitioner in the commission of a crime attracting prohibitory
clause and as such, he does not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the complainant has in fact been subjected

to a carnal intercourse when the medico-legal report and the report
of the Forensic Science Laboratory do not spell out any definite
opinion, is a question which requires further inquiry.

5. The fact that the petitioner has been in Jail for

almost 5 months and there is no prospect of the conclusion of his
trial in near future, would constitute yet another ground for his
release on bail.

Peshawar High Court

 2083
6. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail if he
furnishes bail bonds in the sum of Rs.2,00,000/- (Rs. Two lacs)
with two sureties each in the like amount to the satisfaction of the
Illaqa/Judl Magistrate.

Dated:24.9.2004. JUDGE

Peshawar High Court

 2084
Khan Wadan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 866/2004 Date of hearing 24.09.2004

EJAZ AFZAL KHAN J.- Khan Wadan, petitioner

herein, in Cr.Misc. No.866/2004 who is charged in a case
registered against him and one another, Vide FIR No.196 dated
9.4.2004, Police Station Matta, seeks his release on bail whereas
Amirzeb, petitioner in Cr.Misc. No.914/2004 (BCA) seeks
cancellation of bail granted to Liaqat Ali, respondent therein. As
both the petitions arise out of the same case, they are disposed of
by this single judgment.

2. It was argued by the learned counsel for the petitioner

that there is an excessive delay of more than 18 hours in lodging
the report which has not been plausibly explained notwithstanding
the fact that the Police Post is at distance of 2/3 Kilometers; that
the first informant himself has also been arraigned as an accused,
thus no sanctity can be given to the version furnished by him; that
according to the data available on the record she was hit per
accident when there was a cross fire between the complainant and
the accused party and that it is not clear as to whose shot hit her.

3. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for Amirzeb,
petitioner in the BCA, argued that even if the version set afloat by
the accused petitioner is taken to be true, without conceding the
petitioner and his co-accused Liaqat Ali are prima facie connected
with a crime attracting prohibitory clause, therefore, the former
does not deserve the concession of bail while the concession of
bail granted to the latter be recalled by accepting
Cr.Misc:914/2004 (BCA).

Peshawar High Court

 2085
4. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

5. A perusal of the FIR would reveal that there is an

excessive delay of more than 18 hours in lodging it. Whether it has
been plausibly explained, whether the FIR will have any value
when the first informant himself has turned out to be an accused,
whether the deceased was hit per accident in consequence of a
cross firing taking place between complainant and the accused
party, if so, whose shots hit the deceased are the questions which
essentially call for further inquiry and thus make the case arguable
for the purposes of bail.

6. I, therefore, allow this petition and direct the release of

the petitioner on bail, if he furnishes bail bonds in the sum of
Rs.3,00,000/- (Rs. Three lacs) with two sureties each in the like
amount to the satisfaction of the Illaqa/Judl Magistrate who is to
ensure that the sureties are local, reliable and men of means.

7. As the order granting bail to Liaqat Ali, respondent in

Cr.Misc. No.914/2004 does not smack of any perversity or
arbitrariness, I do not feel inclined to interfere therewith, therefore,
it being without merit is dismissed.

Dated:24.9.2004. JUDGE

Peshawar High Court

 2086
Afsar Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 987/2004 Date of hearing 15.10.2004

EJAZ AFZAL KHAN J.- Discontent with the order

dated 7.7.2004 of the learned Addl Sessions Judge Mardan at
Takht Bhai, the petitioner who is charged in a case registered
against him under sections 302/324 PPC., vide Fir No.107 dated
7.3.2004. Police Station Lunkhwar, moved this Court for his
release on bail.

2. It was argued by the learned counsel for the

petitioner that the petitioner has not been charged in the FIR; that
he was named by the mother and sister of the deceased after about
17 days of the occurrence, therefore, there are not reasonable
grounds to connect him with the crime, moreso when, the
possibility that this crime was authored by the P.Ws. themselves
because of the conduct of the deceased cannot be ruled out.

3. As against that, the learned DAG opposed the grant

of bail but could not advert to any material on the record as could
reasonably connect him with the crime.

4. We have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Assuming that the incident was seen by the sister of

the deceased but the question arises as to why did she leave the
injured in a lurch and did not report the incident for as many as 17
days makes their testimony highly doubtful, quite apart from the
act that no plausible explanation in this behalf has been given by
them in her statement. In this view of the matter, the only
inescapable conclusion would be that there are not reasonable

Peshawar High Court

 2087
grounds to connect the petitioner with the crime land that there are
grounds for further inquiry.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.3,00,000/- with two sureties
each in the like amount to the satisfaction of the Illaqa/Judicial
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:15.10.2004. JUDGE

Peshawar High Court

 2088
Muhammad Yaseen --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1058/2004 Date of hearing 15.10.2004

EJAZ AFZAL KHAN J.- Discontent with the order

dated 15.6.2004 of the learned ASJ-IX Peshawar, the petitioner
who is charged in a case registered against him under section 9
CNSA, vide FIR No.359 dated 7.6.2004, Police Station Pishtakara,
moved this Court for his enlargement on bail.

2. The gist of the arguments of the learned counsel for

the petitioner is that since the substance recovered does not exceed
one K.G., the case of the petitioner being covered by section 9 (b)
of the Act, does not attract prohibitory clause.

3. The learned counsel appearing on behalf of the State

argued that narcotics dealers do not deserve any leniency
notwithstanding the fact that their case does not attract prohibitory
clause.

4. As the quantum of the substance recovered does not

exceed one K.G., the case of the petitioner being covered by
section 9 (b) does not attract prohibitory clause, therefore, I do not
see any strong reason to withhold the concession of bail.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.50,000/- with two sureties
each in the like amount to the satisfaction of the Illaqa/Judicial
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated: 15.10.2004. JUDGE

Peshawar High Court
 2089
Azam Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1143/2004 Date of hearing 18.10.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and one another under sections
302/34 PPC., vide FIR No.198 dated 18.4.2004, Police Station
Pishetakhara, seeks his release on bail mainly on the ground that so
far there nothing on the record as could conclusively connect him
with the crime except the recovery of Kalakov and positive report
of ballistic expert which at its best only can show that the deceased
was fired at by the aforesaid weapon and not the person behind it.

2. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, argued that when the empties recovered from the
scene of occurrence matched with the Kalakov recovered from the
possession of the petitioner, it undoubtedly shows his complicity
in the crime and that the learned trial Court has rightly cancelled
his bail.

3. Be all that as it may, whether the recovery symplicitor

as distinguished from discovery of article 40 of Qanun-e-shahadat
coupled with the positive report of FSL would be sufficient to
connect the petitioner with the crime is a question which
essentially requires further inquiry.

4. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs. 5,00,000/- with two sureties
each in the like amount to the satisfaction of the Illaqa/Judicial

Peshawar High Court

 2090
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:18.10.2004 JUDGE

Peshawar High Court

 2091
Habib Rasool --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1185/2004 Date of hearing 29.10.2004

EJAZ AFZAL KHAN J.- Discontent with the order of

the Courts below, the petitioner who is charged in a case registered
against him under section 324 PPC., vide FIR No.218 dated
12.5.2003, Police Station Sher Garh, moved this Court for his
release on bail.

2. It was argued by the learned counsel for the

petitioner that the occurrence is a result of sudden flare up that
there is no repetition of fire notwithstanding the fact that there was
none to stop the petitioner and that the injury being simple and on
non-vital part of body will make out a case for further inquiry as
far as the intention to kill is concerned.

3. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, argued that the act of choosing lethal weapon for
assault and then using that against the complainant alone are
sufficient to prove the intention on the part of the petitioner to kill
and that escape of the latter due to the intervention of chance will
not, in any way, allay or lessen the criminal responsibility of the
former, moreso when the charge against him is fully supported by
the medical evidence as well as that of abscondence.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for4 the parties.

5. The fact that the occurrence was over without the

intervention of any body and that the petitioner did not repeat fire

Peshawar High Court

 2092
notwithstanding the fact that there was none to stop him will make
out a case for further inquiry as far as the intention to kill the
complainant is concerned, that too, when the injury on his person
besides being on non-vital part of body is simple as well.

6. The argument of abscondence will not deter the

Court from releasing an accused on bail, once it comes to a
conclusion that a case of further inquiry is made out.

7. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail,
provided, he furnishes bail bonds in the sum of Rs.3,00,000/- (Rs.
Three lacs) with two sureties each in the like amount to the
satisfaction of the Illaqa/ Judicial Magistrate who is to ensure that
the sureties are local, reliable and men of means.

Dated:29.10.2004 JUDGE

Peshawar High Court

 2093
Asad Ullah --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1030/2004 Date of hearing 29.10.2004

EJAZ AFZAL KHAN J.- The petitioners who is charged

in a case registered against them and 2 others under sections
302/109/34 PPC., Vide FIR No.38 dated 13.7.2004, Police Station
Mastooj, seek their release on bail mainly on the ground that so far
there is no evidence on the record to show that death of the
deceased was homicidal.

2. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, argued that the nature of the injuries on the person of
the deceased prove that they are homicidal, therefore, the
petitioners being prima facie connected with the offence attracting
prohibitory clause do not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the death of the deceased was homicidal or

suicidal is a question which requires further inquiry, therefore, I do
not see any strong reason to withhold the concession of bail simply
because the offence being covered by the prohibitory clause is
punishable with death or imprisonment for life.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.5,00,000/- with two sureties
each in the like amount to the satisfaction of the Illaqa/ Judicial
Magistrate.

Peshawar High Court

 2094

6. However, if some more evidence incriminating the

petitioners comes to light, the complainant will be at liberty to
move for cancellation of their bail.

Dated: 29.10.2004 JUDGE

Peshawar High Court

 2095
Gul Rafique --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 382/2004 Date of hearing 08.11.2004

EJAZ AFZAL KHAN J.- Discontent with the order

dated 12.3.2004 of the learned Zila Qazi Buner, the petitioner who
is charged in a case registered against him under section 18 of the
Offences of Zina (Enforcement of Hudood) Ordinance, 1979 read
with sections 458 PPC., vide FIR No.91 dated 21.2.2004, Police
Station Nawagai District Buner, moved this Court for his
enlargement on bail.

2. It was argued by the learned counsel for the

petitioner that even if the allegations leveled against the petitioner
are accepted to be true, the case made out against him, being one
of lurking house trespass and outraging modesty will not attract
prohibitory clause.

3. As against that, Mr. Zia Jehangir, learned counsel

appearing on behalf of the State assisted by the learned counsel for
the complainant, argued that the petitioner being charged in a
crime involving moral turpitude, does not deserve the concession
of bail notwithstanding it may not attract prohibitory clause.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. As no weapon for causing hurt or an outfit for

breaking house has been recovered from the possession of the
petitioner at the time of his apprehension, it would be a case of
simple lurking house trespass by night which being covered by
section 456 of the PPC. will not attract prohibitory clause. Even
the application of section 18 of the Ordinance would be doubtful

Peshawar High Court

 2096
inasmuch as no effort was made by the petitioner to remove
‘shalwar’ of the complainant. Apart from this, the fact that the
petitioner remained in Jail for more than 9 months and there is no
prospect of conclusion of his trial in the near future will further tilt
the balance in favour of bail rather than Jail.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bond in the sum of Rs.1,00,000/- (Rs. One lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:8.11.2004 JUDGE

Peshawar High Court

 2097
Hariullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1159/2004 Date of hearing 08.11.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and many others under sections
17(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979 read with section 342 PPC. , vide FIR No.81
dated 6.6.2000, Police Station Sakhakot, seeks his release on bail
mainly on the ground that when the complainant has not disclosed
the source as to how did he come to know about the complicity of
the petitioner in the crime, he cannot be held to be reasonably
connected therewith.

2. As against that, Mr. Zia Jehangir, learned counsel

appearing on behalf of the State, argues that prolonged noticeable
un-explained abscondence of more than four years, alone will
disentitle him to be released on bail merits of the case
notwithstanding.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. When there is absolutely nothing in the FIR to show as

to how did the complainant come to know about the complicity of
the petitioner in the crime, he cannot be held to be reasonably
connected therewith simply because there is prolonged noticeable
unexplained abscondence to his discredit.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.3,00,000/- with two sureties

Peshawar High Court

 2098
each in the like amount to the satisfaction of Illaqa/ Judicial
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:8.11.2004 JUDGE

Peshawar High Court

 2099
Bashir --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1163/2004 Date of hearing 08.11.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and many others under section 17
(3) of the Offences Against Property (Enforcement of Hudood)
Ordinance, 1979, read with section 342 PPC., vide FIR No.3 dated
28.1.2002 Police Station Koopar Dargai Malakang Agency, when
failed to get the concession of bail from the lower forums, asked
therefor by moving this Court.

2. The crux of the arguments addressed by the learned

counsel for the petitioner was that the petitioner has been charged
by his co-accused Bakht Zaman, in his confessional statement who
has since been acquitted, vide judgment dated 4.11.2002, therefore,
his involvement in the commission of the crime requires further
inquiry especially when there is no other evidence to corroborate
the charge against him.

3. As against that, the learned DAG appearing on behalf

of the State did not dispute any of the arguments advanced by the
learned counsel for the petitioner and rightly so firstly because the
confessional statement of a co-accused being a weak type of
evidence can at its best be used as a circumstantial evidence that
too in a joint trial and cannot thus itself form basis for conviction.
Apart from this, when even the confessing co-accused on being
exonerated by the complainant has been acquitted, I do not see
any reason muchless legal to justify his further detention in Jail
even for a day more

Peshawar High Court

 2100
4. For the reasons discussed above, I allow this petition
and direct that the petitioner be release on bail, provided, he
furnishes bail bond in the sum of Rs.2,00,000/- (Rs. Two lacs) with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:8.11.2004 JUDGE

Peshawar High Court

 2101
Muhammad Yousaf --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1178/2004 Date of hearing 08.11.2004

EJAZ AFZAL KHAN J.- Discontent with the order

dated 18.9.2004 of the learned Addl Sessions Judge-I Mardan
refusing bail to the petitioners who are charged in a case registered
against them under sections 324/34 PPC., vide FIR No.705 dated
11.8.2004, Police Station Takht Bhai, District Mardan, moved this
Court for their release on bail.

2. It was argued by the learned counsel for the

petitioners that seat o injuries on the person of the complainant
alone will make the intention to kill doubtful when they also
turned out to be simple.

3. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, argued that the act of choosing lethal weapon and
using it against the complainant alone will prove his intention to
kill, therefore, they do not deserve the concession of bail simply
because divinity stepped in to save his life.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.
5. Whether the petitioners intended the death of the
complainant when they fired at him from very close range and yet
did not hit a vital part of his body is a question requiring further
inquiry especially when the injuries on his person also turned out
to be simple.

Peshawar High Court

 2102
6. For the reasons discussed above, this petition is
allowed and the petitioners are directed to be released on bail,
provided, they furnish bail bonds in the sum of Rs.2,00, 000/- (Rs.
Two lacs) with two sureties each in the like amount to the
satisfaction of the Illaqa/ Judicial Magistrate who is to ensure that
the sureties are local , reliable and men of means.

Dated:8.11.2004. JUDGE

Peshawar High Court

 2103
Aminullah --- Appellant/Petitioner (s)

Versus
Muhammad Tahir --- Respondent (s)

JUDGMENT
Cr.M. No. 1149/2004 Date of hearing 12.11.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and one another under sections
382/34 PPC., vide FIR No.35 dated 18.7.2004, Police Station
Kopar, Malakand Agency, seeks his released on bail mainly on the
ground that even if the allegations leveled against him are accepted
to be true, the offence made out against him being covered by
section 384 is punishable with 3 years imprisonment or with fine
or with both whereas the petitioner in Cr.Misc. (BCA)
No.1253/2004 who is complainant in this case seeks cancellation
of; bail granted to Sher Hussan on the ground that the offence the
respondent is charged with being covered by section 382 PPC.
prima facie attracts prohibitory clause. As both the petitions arise
out of the same case, they are disposed of by this single judgment.

2. The learned counsel appearing on behalf of the State

argued that the case being covered by section 17 (3) of the
Offences Against Property (Enforcement of Hudood), Ordinance,
1979, prima facie attracts prohibitory clause and as such the
petitioner does not deserve the concession of bail.
3. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

4. Whether the offence allegedly committed by the

petitioner falls within the ambit of section 382 or 384 PPC. is a
question requiring further inquiry, therefore, I dot not see any
strong reasons for withholding the concession of bail.

Peshawar High Court

 2104
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail, if
furnishes bail bond in the sum of Rs.50,000/- with two sureties
each in the like amount to the satisfaction of the Illaqa/ Duty
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:12.11.2004 JUDGE

Peshawar High Court

 2105
Fazl-e-Rabbi --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1222/2004 Date of hearing 12.11.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and one another under sections
324/34 PPC., vide FIR No.428 dated 30..5.2004, Police Station
Daudzai, seeks his release on bail on the ground that the present
case seems to be a product of concoction deliberately resorted to
in order to counterblast the case registered against the complainant
at the instance of the accused party under sections 302/34 PPC.;
that the version given in the FIR is prima facie unbelievable as no
person will ever expose himself to the risk of being hit by holding
another in his clasp who is being fired at and that in view of nature
of injuries it is yet to be determined whether the petitioner intended
the death of the complainant.

2. As against that, the learned counsel appearing on

behalf of the State argues that the petitioner is prima facie charged
with an offence attracting prohibitory clause, therefore, he does not
deserve the concession of bail.

3. I have gone through the record carefully and

considered the sub missions of the learned counsel for the parties.

4. What transpired between the parties when on the one

side the complainant sustained fire-arm injuries and on the other
side a boy of 17/18 years of age lost life and whether in view of the
nature of injuries on the person of the complainant, can the
petitioner be saddled with the intent to kill the complainant are the
questions which require further inquiry.

Peshawar High Court

 2106
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.3,00,000/- (Rs. Three lacs)
with two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:12.11.2004. JUDGE

Peshawar High Court

 2107
Ibrahim --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 1252/2004 Date of hearing 12.11.2004

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under sections 302/34
PPC., vide FIR No.295 dated 22.7.2004, Police Station Yar
Hussain, seek their release on bail mainly on the ground that no
admissible evidence has so far been collected by the Investigating
Agency as could reasonably connect them with the crime.

2. As against that, the learned AAG appearing on behalf

of the State argues that a pistol has been recovered at the instance
of one of the petitioners which proves their complicity in the
crime.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, the mere recovery of a pistol at

the instance on one of the petitioners is not at all sufficient to
reasonably connect them with the crime unless it is corroborated
by other facts and circumstances of the case which is not the case
here.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail, if
they furnish bail bond in the sum of Rs.2,00,000/- (Rs. Two lacs)
with two sureties each in the like amount to the satisfaction of
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means. However, if the Investigating
Agency succeeds in collecting some evidence connecting the

Peshawar High Court

 2108
petitioners with the crime, the State will be at liberty to move for
cancellation of their bail.

Dated:12.11.2004 JUD GE

Peshawar High Court

 2109
Ishtiaq --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1332/2004 Date of hearing 22.11.2004

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and one another under sections
6,7,8,9 of the CNSA, 1997, vide FIR No.10 dated 28.2.2004,
Police Station I & P Customs Peshawar, seeks his release on bail
mainly on the ground that despite direction of this Court,
conclusion of his trial is not in sight.

2. As against that, the learned DAG appearing on behalf

of the State argues that since the trial was delayed due to
premature institution of his another application for bail, he is not
entitled to be released on bail on this score.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. It is true that a direction was given by this Court that

the trial of the petitioner be concluded within a period of four
months failing which he would be at liberty to move this Court for
bail but the record reveals that he himself was instrumental in
delaying the trial by moving another application for bail before the
expiration of the said period.

5. In this view of the matter, I do not feel inclined to

consider his request for bail. However, once again I direct the trial
Court to conclude his case and that of his co-accused within a
period of three months positively failing which he may repeat his
application for bail before this Court .

Peshawar High Court

 2110
5. The re cord of this case be sent as soon as possible but
not later than 3 days to the learned trial Court to ensure the speedy
trial of the petitioner and his co-accused.

Dated: 22.11.2004 JUDGE

Peshawar High Court

 2111
Badshah Zada --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1202/2004 Date of hearing 26.11.2004

EJAZ AFZAL KHAN J.- Discontent with the order dated

25.9.2004 of the learned Izafi Zila Qazi Swat, the petitioner who is
charged in a case registered against him and one another under
sections 302/109 PPC. vide FIR No.377 dated 3.7.2004, Police
Station Kabal, moved this Court for his enlargement on bail.

2. The crux of the arguments of the learned counsel

for the petitioner was that no overt act has been attributed to the
petitioner in the FIR and that the charge of abetment has been
leveled against him simply because, he happens to be the father of
the absconding co-accused.

3. As against that the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant by referring to the case of Mst. Hanifa and
another..Vs..Zulfiqar and another (PLD 2001 Lahore 123), argued
that abetment in the offence of murder was as serious as murder
itself, therefore, the petitioner does not deserve the concessions of
bail, when there is sufficient evidence on the record that he ¾ days
before the occurrence, threatened the P.Ws. of dire consequence.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. A perusal of the FIR would reveal that no overt act

has been attributed to the petitioner and that he is charged only for
raising ‘lalkara’. No doubt, a few witnesses have been examined
under section 164 Cr.P.C. charging the petitioner for holding out
threats of dire consequences to the P.Ws. but whether such threats

Peshawar High Court

 2112
alone in the absence of any other evidence on the record will make
out a case for abetment against him is a question which requires
further inquiry.

6. The argument addressed on the strength of the

judgment referred to above, will not be of much significance when
it relates to pre-arrest bail which is always invariably decided on
different considerations.

7. For the reasons discussed above, this ,petition is

allowed and the petitioner is directed to be released on bail if he
furnishes bail bond in the sum of Rs.1,00,000/- (Rs. One lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate.

Dated:26.11.2004 JUDGE

Peshawar High Court

 2113
Abdul Wali --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 1376/2004 Date of hearing 26.11.2004

EJAZ AFZAL KHAN J.- Discontent with the order

dated 28.10.2004 of the learned Addl Sessions Judge-I Kohat, the
petitioner who is charged in a case registered against him under
sections 498-B PPC, vide FIR No.521 dated 5.10.2004, Police
Station Jangle Khel Kohat, moved this Court for his release on
bail.

2. It was argued by the learned counsel for the petitioner

that so far there is no evidence on the record to show that the
petitioner besides possessing, indulged in selling, receiving or
otherwise trafficking or using the counterfeit currency notes as
genuine, therefore, it being a case covered by section 489 (c) PPC.
will not attract prohibitory clause.

3. As against that, the learned counsel appearing on

behalf of the State by referring to the case of Izzat Gul and 2
others..Vs..The State (2001 P.Cr.L.J. 291) argued that possession
of a huge number of counterfeit currency notes to the tune of
Rs.47000/- alone will prove that the petitioner indulged in
trafficking or using the counterfeit currency notes as genuine,
therefore, he does not deserve the concession of bail.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Whether it is a case of 489 (b) or 489 (c) is a question

requiring further inquiry when so far there is nothing on the record
to show that the petitioner knew that notes so recovered from him

Peshawar High Court

 2114
were counterfeit currency notes, especially when he, despite being
produced before the magistrate, did not make any confessional
statement.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail if he
furnishes bail bond in the sum of Rs.2,00,000/- (Rs.two lacs) with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:26.11.2004. JUDGE

Peshawar High Court

 2115
Gul Muhammad --- Appellant/Petitioner (s)

Versus
Bismillah Jan --- Respondent (s)

JUDGMENT
Cr.M. No. 1248/2004 Date of hearing 24.01.2005

EJAZ AFZAL KHAN J.- The petitioner through the

instant petition seeks cancellation of bail granted to the accused
respondent by the lear4ned Additional Sessions Judge-IX
Peshawar, vide order dated 13.9.2004 in a case registered against
him and other under sections 302/34 PPC., Vide FIR No.198 dated
18.4.2004, Police Station Pishtakhara, Peshawar, mainly on the
ground that he is responsible for the death of the deceased firstly
because he happens to be her husband and secondly because the
occurrence took place in his house.

2. The learned D.A.G. appearing on behalf of the State

does not support this application for cancellation of bail.

3. The learned counsel appearing on behalf of the

respondent argues that so far the Investigating Agency has not
been successful in collecting even a single piece of evidence as
could connect the respondent with the crime notwithstanding the
fact that he remained in Police custody for more than 3 days.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. The record reveals that the Investigating Agency

could not yet collect any evidence as could reasonably connect the
accused respondent with the crime in spite of the fact that he
remained in Police custody for more than three days. When that
being the case, I will not interfere with the impugned order,
particularly when none of the reasons recorded therein is either

Peshawar High Court

 2116
perverse, whimsical or arbitrary and there is also nothing on the
record to show that he has misused his liberty after being released
on bail.

7. For the reasons discussed above, this petition being

without substance is dismissed. However, if the Investigating
Agency succeeds in collecting some more evidence connecting
him with the crime, the Prosecution shall be at liberty to move
afresh for its cancellation.

Dated:24.1.2005. JUDGE

Peshawar High Court

 2117
Iftikhar --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 14/2005 Date of hearing 28.01.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 419/420/468/371
PPC., vide FIR No.758 dated 15.12.2004, Police Station Kohat
Cantt: when failed to get the concession of bail from the lower
forums asked therefor by moving this Court.

2. It was argued by the learned counsel for the

petitioner that none of the offences the petitioner is charged with
attracts prohibitory clause, therefore, grant of bail is a rule and
refusal is an exception. Relies on the case of Tariq Bashir and 5
others..Vs..The State (PLD 1995 Supreme Court 34).

3. As against that, the learned counsel appearing on

behalf of the State argued that the offence committed by the
petitioner are too heinous, therefore, he does not deserve the
concession of bail notwithstanding the fact that none of them
attracts prohibitory clause.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Since none of the offences the petitioner is charged

with attracts prohibitory clause, I will not feel inclined to refuse
bail to him when bail and not the Jail is a rule in such cases. The
case of Tariq Bashir and 5 others..The State (supra) thus be
referred with advantage.

Peshawar High Court

 2118
6. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.5,00,000/- (Rs. Five lacs) with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:28.1.2004 JUDGE

Peshawar High Court

 2119
Sher Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 222/2004 Date of hearing 28.01.2005

EJAZ AFZAL KHAN J.- The petitioner whose vehicle

bearing registration No.C-4075 has been hauled up in a case
registered against one Mehboob and 2 others under section 9
CNSA, vide FIR No.20 dated 21..5.2004, Police Station Utla,
when failed to get its custody from the lower forums moved this
Court in this behalf.

2. It was argued by the learned counsel for the

petitioner that where there is no rival claimant of the aforesaid
vehicle and there is nothing on the record to show that this vehicle
was used in the import, export or transportation of narcotics with
the consent, connivance or knowledge of the petitioner, its custody
could not have been refused to him, moreso when its retention in
the Police custody is not likely to serve any useful purpose except
deterioration in its value and quality. The learned counsel to
support her contention placed reliance on the cases of
Niazullah..Vs.. The State (2002 P.Cr.L.J. 97), Abdul Hameed..Vs..
The State ( 2002 P.Cr.L.J. 666) and the State..Vs..Rashid (PLD
2002 Peshawar 87).

3. As against that, the learned counsel appearing on

behalf of the State argued that where the document on the basis
whereof the custody of the vehicle is claimed is dubious on the
face of it as is evident from the cutting therein, her prayer for
custody of the vehicle has rightly been declined by the forums
below.

Peshawar High Court

 2120
4. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

5. Be all that as it may, where there is no rival

claimant of the aforesaid vehicle and there is nothing on the record
to show that it was used in the import, export or transportation of
narcotics with the consent, connivance or knowledge of the
petitioner, there was no justification to decline his prayer for its
custody, moreso when no useful purpose is likely to be served by
its retention in Police custody. The judgments cited above cover
the case in h and on all fours.

6. For the reasons discussed above, this petition is

allowed and the vehicle is directed to be released to the petitioner,
if he furnishes bail bound in the sum of Rs.3,00,000/- (Rs. Three
lacs) with two sureties each in the like amount to the satisfaction of
the Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means. However, the petitioner shall be
bound to produce the vehicle in the Court, if and when required.

Dated:28.1.2005 JUDGE

Peshawar High Court

 2121
____________________Appellant/Petitioner (s)

Versus
_______________________Respondent (s)

JUDGMENT
Cr.M. No. 6/2004 Date of hearing 11.02.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 302/404/34 PPC.
read with section 512 Cr. P.C., vide FIR No.142 dated 20.10.1976,
Police Station Dir, seeks his release on bail mainly on the ground
that except confessional statement, there is no other evidence
against him as could connect him with the crime and that he being
80 years old deserves this concession, that too, when he because of
being ill is admitted in Jail Hospital.

2. As against that, the learned AAG appearing on

behalf of the State assisted by the learned counsel for the
complainant, argues that the petitioner being prima facie connected
with the crime does not deserve the concession of bail when his
confessional statement is also corroborated by the evidence of
recovery and his prolonged abscondence.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. As the petitioner is prima facie linked with a crime

attracting prohibitory clause, I will not feel inclined to grant him
bail, moreso when, there is prolonged noticeable unexplained
abscondence to his discredit.

5. For the reasons discussed above, this petition is

dismissed. However, the learned trial Court is directed to conclude
this case as expeditiously as possible but not later than six months,

Peshawar High Court

 2122
failing which the petitioner may, if so advised, approach this Court
for bail.

Dated:11.2.2005 JUDGE

Peshawar High Court

 2123
Nisar Muhammad --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 110/2005 Date of hearing 25.02.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 419/420/406 PPC.,
vide FIR No. 13 dated 19.1.2005, Police Station Nowshera Cantt; ,
seeks his release on bail mainly on the ground that the only case
made out against the petitioner being one of personation by
cheating and punishable with being punishable with imprisonment
or fine or both, is bailable.

2. As against that, the learned counsel appearing on

behalf of the State argues that since the petitioner is guilty of
cheating a Court of law by personation, he does not deserve the
concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, as the offence of cheating by

personation being punishable with imprisonment or fine or with
both, shall be deemed to be bailable, I do not see any strong reason
to decline bail to the petitioner when he is entitled to be released
on bail as of right. The case of Sher Ahmad ..Vs.. The State (PLD
1993 Peshawar 104) may well be referred in this behalf.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.50,000/- with the two sureties
each in the like amount to the satisfaction of the Illaqa/ Judicial
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:25.2.2005 JUDGE

Peshawar High Court

 2124
Ikramuddin --- Appellant/Petitioner (s)

Versus
Inayatullah --- Respondent (s)

JUDGMENT
Cr.M. No. 20/2005 Date of hearing 11.03.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and one another under sections
377/34 PPC. read with section 12 of the Offence of Zina
(Enforcement of Hudood) Ordinance, 1979, vide FIR No.073 dated
1.11.2004, Police Station Kabal, seeks his release on bail mainly
on the ground that except his passive presence on the spot, no overt
act whatever has been attributed to him, so as to attract the
application of any of the sections mentioned above.

2. As against that, the learned AAG appearing on

behalf of the State assisted by the learned counsel for the
complainant, vehemently argues that the omission of the petitioner
to stop the main accused from committing the crime would amount
to an act of abetment within the terms of section 107 of the PPC as
such he is as much involved in the crime as the main accused
himself, therefore, he does not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record reveals that except passive presence of

the petitioner on the spot, no overt act whatever has been attributed
to him as could link him with the crime envisaged by the sections
mentioned above.

5. The argument that omission of the petitioner to stop

the main accused from committing the crime would amount to
abetment within the terms of section 107 PPC. has not impressed

Peshawar High Court

 2125
me to the least when according to his confessional statement, he
stopped the main accused from committing the crime.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail,
provided, he furnishes bail bond in the sum of Rs.50, 000/- with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:11.3.2005 JUDGE

Peshawar High Court

 2126
Imran Masih --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 207/2005 Date of hearing 01.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 489 (B) PPC., vide
FIR No.21 dated 5.2.2005 Police Station Railway Cantt: Peshawar,
seeks his release on bail mainly on the ground that so far as there is
no material whatever on the record to show that he was dealing
with or trafficking in, the counterfeit currency notes and that
possession simplicitor being covered by section 489 (C) PPC. is
bailable. Relies on the case of Sher Ahmad..Vs.. The State (NLR
1993 Criminal Peshawar 571).

2. As against that, the learned Deputy Attorney

General argues that huge quantity of counterfeit currency notes
itself is a proof of the fact that he was dealing with and trafficking
in them and that the offence being covered by section 489 (B)
PPC. prima facie attracts prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, the question whether the case

of the petitioner falls within the ambit of section 489 (B) or 489
(C) of the PPC. is essentially one of further inquiry, therefore, I do
not see any strong reason to withhold the concession of bail.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.1,00,000/- (Rs. One lac) with
two sureties each in the like amount to the satisfaction of the

Peshawar High Court

 2127
learned Illaqa/ Judicial Magistrate who is to ensure that the sureties
are local, reliable and men of means.

Dated:1.4.2005 JUDGE

Peshawar High Court

 2128
Muhammad Mushtaq --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 231/2005 Date of hearing 07.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 9 CNSA, vide FIR
No.17 dated 25.1.2005, Police Station Railway Police Peshawar
Cantt: for having been found in possession of 4 K.Gs. of chars
‘garda’, when failed to get the concession of bail from the Courts
below, moved this Court.

2. The learned counsel appearing on behalf of the

petitioner argued that the Railway Police are not competent to
conduct search, seizure and investigation of a case registered under
the provision of CNSA, therefore, the entire proceedings being
nullity from the very inception will entitle the petitioner to be
released on bal. The learned counsel to support h is contention
placed reliance on the case of Nasrullah..Vs..The State (PLD
2001 Peshawar 152). The learned counsel next submitted that
‘garda’ being raw form of chars is reduced to half in weight, if and
when processed, therefore, the possibility that the petitioner
cannot be awarded maximum sentence provided by the statute
cannot be ruled out. The learned counsel to support his contention
placed reliance on the case of Hussan Zari..Vs..The State in Cr.
Misc: No.380 of 2003 decided on 30.5.2003.

3. As against that, the learned DAG appearing on

behalf of the State by referring to SRO No.597(1)/79 dated
7.7.1997 argued that the Railway Police has been authorized to
conduct search, seizure and investigation of a case registered under
section 9 CNSA. While controverting the argument as to the
reduction of weight of the raw chars in the wake of its being
processed, the learned counsel submitted that if there is any

Peshawar High Court

 2129
reduction in weight, it is nominal, therefore, it cannot benefit the
petitioner.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Whether the Railway Police are competent to

conduct search, seizure and investigation of a case registered under
section 9 CNSA, is a question requiring further inquiry, when so
far no SRO authorizing them to do the needful has been produced.

6. No doubt as per data so far available on the record,

the petitioner is found in possession of 5 K.Gs. of chars in raw
form but since it is considerably reduced in weight, when
processed, I doubt that the petitioner can be awarded the maximum
sentence provided by the statute. The case of Mst. Hussan
Zari..Vs.. The State (Supra) may well be referred in this behalf.

7. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bond in the sum of Rs.3,00,000/- (Rs. Three lacs)
with two sureties each in the like amount to the satisfaction of the
learned trial Court who is to ensure that the sureties are local,
reliable and men of mean.

Dated:7.4.2005 JUDGE

Peshawar High Court

 2130
Muhammad Yousaf --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 39/2005 Date of hearing 08.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 302/34 PPC., vide
FIR No.17 dated 14.5.2004 Police Station Kalam, when failed to
get the concession of bail from the forums below, moved this
Court in this behalf.

2. It was argued by the learned counsel for the

petitioner that where it has been verified by good number of
independent witnesses that the petitioner was not present at the
scene of occurrence and he has been placed in column No.2 by the
Investigating Agency, there are not reasonable ground to entertain
the belief that he has committed the crime, he is charged with and
that there are grounds for further inquiry.

3. As against that, the learned State counsel assisted

by the learned counsel for the complainant, argued that the
petitioner being specifically charged for firing effective shots is
prima facie linked with the crime and that the plea of alibi set up
after the abscondence of more than a month is not worthy of
reliance notwithstanding the opinion of the Investigating Officer
about his innocence.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. The record reveals that the petitioner is directly

charged for having fired effective shots on the deceased. Whether
the plea of alibi set up by him is based on actual facts or otherwise

Peshawar High Court

 2131
cannot be commented upon by this Court, while being seized of an
application for bail as it can only be done by the learned trial Court
after recording evidence. When the data so far available on the
record, prima facie links the petitioner with a crime attracting
prohibitory clause, I will not feel inclined to extend to him the
concession of bail at least at this stage.

6. For the reasons discussed above, this petition being

without substance is dismissed.

Dated:8.4.2005 JUDGE

Peshawar High Court

 2132
Muhammad Yousaf --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 39/2005 Date of hearing 08.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 302/34 PPC., vide
FIR No.17 dated 14.5.2004 Police Station Kalam, when failed to
get the concession of bail from the forums below, moved this
Court in this behalf.

2. It was argued by the learned counsel for the

petitioner that where it has been verified by good number of
independent witnesses that the petitioner was not present at the
scene of occurrence and he has been placed in column No.2 by the
Investigating Agency, there are not reasonable ground to entertain
the belief that he has committed the crime, he is charged with and
that there are grounds for further inquiry.

3. As against that, the learned State counsel assisted

by the learned counsel for the complainant, argued that the
petitioner being specifically charged for firing effective shots is
prima facie linked with the crime and that the plea of alibi set up
after the abscondence of more than a month is not worthy of
reliance notwithstanding the opinion of the Investigating Officer
about his innocence.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. The record reveals that the petitioner is directly

charged for having fired effective shots on the deceased. Whether
the plea of alibi set up by him is based on actual facts or otherwise
cannot be commented upon by this Court, while being seized of an

Peshawar High Court

 2133
application for bail as it can only be done by the learned trial Court
after recording evidence. When the data so far available on the
record, prima facie links the petitioner with a crime attracting
prohibitory clause, I will not feel inclined to extend to him the
concession of bail at least at this stage.

6. For the reasons discussed above, this petition being

without substance is dismissed.

Dated:8.4.2005 JUDGE

Peshawar High Court

 2134
Hazrat Gul --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 197/2005 Date of hearing 08.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under sections 382/354/411 PPC.
read with section 13 A.O., vide FIR No.514 dated 10.9.2004
Police Station Yakatoot Peshawar, seeks his release on bail mainly
on the ground that he has remained in Jail for almost 7 months and
there is no prospect of commencement of trial.

2. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, argues that the petitioner being charged for the
commission of a heinous crime does not deserve the concession of
bail, when he was caught red handed and incriminating material
was recovered from his possession on the spot.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Merits of the case apart, the fact that the petitioner

has been in Jail for almost 7 months and there is no prospect of
commencement of his trial in near future, let alone its conclusion, I
do not see any strong reason to withhold the concession of bail,
when speedy trial is his indefeasible right. Needless to say that
mere heinousness of crime will not disentitle an accused to the
concession of bail, when ultimate conviction, if any, can repair the
wrong caused by the mistaken relief of bail.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.2,00,000/- (Rs. Two lacs) with

Peshawar High Court

 2135
two sureties each in the like amount to the satisfaction of learned
trial Judge who is to ensure that the sureties are local, reliable and
men of mean.

Announced on: JUDGE

Dated:8.4.2005.

Peshawar High Court

 2136
Fayyaz Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 265/2005 Date of hearing 18.04.2005

EJAZ AFZAL KHAN J.- Fayyaz Khan, petitioner herein,

who is charged in a case registered against him under section 9
CNSA, vide FIR No.18 dated 25.12.2004 Police Station ANF
Kohat, when failed to get the concession of bail from the lower
forum moved this Court in this behalf.

2. It was argued by the learned counsel for the

petitioner that where the quantity of narcotic marginally exceeds
one K.G. it is doubtful that the petitioner can be awarded a
sentence attracting prohibitory clause, especially when he is a
juvenile in terms of section 2 (c) of the Juvenile System Ordinance,
2000.

3. As against that, the learned counsel appearing on

behalf of the ANF argued that where the offence committed by the
petitioner is heinous, he does not deserve any concession in view
of the provisions contained in section 10 (7) of the Ordinance.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Though the quantum of the substance recovered

from the petitioner marginally exceeds one K.G. and the petitioner
being a juvenile in terms of the provisions mentioned above is
entitled to many concession, yet I do not feel inclined to release
him on bail at least at this stage. Instead I direct the learned trial
Court to conclude his case within a period of 2 months failing
which he shall be released on bail, if he furnishes bail bond in the
sum of Rs.1,00,000/- (Rs. One lac) with two sureties each in the

Peshawar High Court

 2137
like amount to the satisfaction of the learned trial Judge who is to
ensure that the sureties are local, reliable and men of means.

Dated:18.4.2005 JUDGE

Peshawar High Court

 2138
Arbab Shaukat Hayat --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 335/2005 Date of hearing 29.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 302 PPC., vide FIR
No.600 dated 19.7.1993 Police Station University Town, seeks his
release on bail mainly on the ground that the petitioner is in Jail for
more than two years, yet his trial has not been concluded so far.

2. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, opposes the grant of bail on the ground that trial is
going to be concluded within a month or so as only one witness is
left to be examined, therefore, release of the petitioner on bail
would result in further delay his trial.

3. I have gone through the record carefully and

considered the sub missions of the learned counsel for the parties.

4. Without commenting on the arguments addressed

by the learned counsel for the parties, I would straight away by
rejecting this petition direct the learned trial Court to conclude the
trial within a period of two months failing which the petitioner
may, if so advised, approach this Court for bail. The record of the
case be sent to the learned trial Court as soon as possible but not
later than 3 days.

Dated:29.4.2005 JUDGE

Peshawar High Court

 2139
Muhammad Ayaz --- Appellant/Petitioner (s)

Versus
Yousaf Khan --- Respondent (s)

JUDGMENT
Cr.M. No. 309/2005 Date of hearing 29.04.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and 3 others under sections 324/34
PPC. , vide FIR No.5 Dated 27.2.2005, Police Station Gurguri,
when failed to get the concession of bail from the lower forums,
moved this Court in this behalf.

2. It was argued by the learned counsel for the

petitioner that the occurrence has taken place at 1815 hours which
is a pretty dark hours in the month of February, therefore,
identification of the assailants from a distance of 60/65 paces is
impossible. It was next submitted that where for two injuries as
many as four persons have been charged, the possibility that the
charge was exaggerated and the petitioner was roped in falsely
cannot be ruled out.

3. As against that, the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant, argued that the petitioner is directly charged for
having fired effective shots on the complainant, therefore, he being
prima facie linked with a crime attracting prohibitory clause, does
not deserve the concession of bail, the moreso when he also
remained absconder for a month or so.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Whether the identification of the petitioner from a

distance of 60/65 paces at 1815 hours could be possible is a

Peshawar High Court

 2140
question requiring further inquiry, that too, when for two injuries
as many as four persons have been charged.

6. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.3,00,000/- (Rs. Three Lacs)
with two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated: 29.4.2005 JUDGE

Peshawar High Court

 2141
Abdulllah --- Appellant/Petitioner (s)

Versus
Gul Badshah --- Respondent (s)

JUDGMENT
Cr.M. No. 187/2005 Date of hearing 16.05.2005

EJAZ AFZAL KHAN J.- Abdullah and Umar Khitab

alias Tabu, petitioners in Cr.Misc: No.187 and Nawab, petitioner
in Cr.Misc: No.316 of 2005, who are charged in a case registered
against them under sections 302/324/34 PPC. read with section 17
(2) (4) Haraaba of the Offences Against Property (Enforcement of
Hudood) Ordinance, 1979, vide FIR No.291 dated 25.11.2004,
Police Station Alpuri Shangla, when failed to get the concession of
bail from the forums below, moved this Court in this behalf. As
both the petitions emerged out of the same FIR, they are disposed
of by this single judgment.

2. It was argued by the learned counsel for the

petitioners that the petitioners have not been named in the FIR or
in the statements of the P.Ws. recorded under section 161 Cr.P.C.
and that the charge being belatedly made against them in the
supplementary statements of the same persons is not sufficient to
link them with the crime, that too, when it is not clear from their
statements as to how did they come to know about complicity of
the petitioners in the crime.

3. As against that, the learned State counsel assisted

by the learned counsel for the complainant argued that though the
petitioners have not been charged in the FIR or in the statements of
the P.Ws. recorded under section 161 Cr.P.C. but their charge in
the supplementary statement of the P.Ws. would equally be good
to connect them with the crime, when it is based on their query
they made during the course of search for the actual culprits.

Peshawar High Court

 2142
4. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

5. The record reveals that the petitioners have not been

charged either in the FIR or the in the statements of the P.Ws.
recorded under section 161 Cr. P.C. No doubt, they have been
charged in the supplementary statements of the P.Ws. recorded
after 3 days of the occurrence but there is absolutely nothing even
in the said statements showing as to how did they come to know
about the complicity of the petitioners in the crime. Therefore, I
have no hesitation to hold that there are not sufficient grounds to
connect the petitioners with the crime and that there are sufficient
grounds for further inquiry.

6. For the reasons discussed above, these petitions are

allowed and the petitioners are directed to be released on bail, if
they furnish bail bonds in the sum of Rs.3,00,000./- (Rs. Three
lacs) with two sureties each in the like amount to the satisfaction of
the Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated: 16.5.2005 JUDGE

Peshawar High Court

 2143
Momin --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 341/2005 Date of hearing 17.05.2005

EJAZ AFZAL KHAN J.- The learned counsel for the

parties as well as the complainant, who is injured as well, state that
the matter has been patched between the parties; that a deed in this
behalf has also been reduced into writing which is Ex:CW1/1 and
that the latter has no objection, if the petitioner is released on bail.

2. In view of the above stated position, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.50,000/- with two sureties
each in the like amount to the satisfaction of the Illaqa/ Judicial
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:17.5.2005 JUDGE

Peshawar High Court

 2144
Sahibzada --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr. M. No. 245/2003 Date of hearing 18.05.2005

EJAZ AFZAL KHAN J.- Appellant Nadir Ali Khan has

assailed the judgment dated 19.3.2002 of the learned Additional
Sessions Judge-V Peshawar, whereby he acquitted the respondents
in a case registered against them under sections 319/34 PPC., vide
FIR No.370 dated 16.5.1990, Police Station East Cantt: Peshawar.

2. It was argued by the learned counsel for the appellant

that where the deceased Jawad Ali died consequent upon touching
an electric pole near his house, the negligence of the respondents
who were then S.D.O., Superintendent and Line Man respectively
was established beyond doubt and that the learned trial Court by
acquitting them did not make proper appraisal of evidence in
accordance with the well recognized principles laid down in this
behalf by the superior Courts of the country.

3. As against that, the learned counsel appearing on

behalf of the respondents argued that where during the course of
investigation, presence of current or leakage of electricity in the
pole was not verified by the Investigating Officer, the charge
against the respondents cannot be said to have been proved beyond
doubt. He next submitted that where no postmortem of the
deceased was conducted to ascertain the cause of his death, the
respondents were rightly acquitted by the learned trial Court.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

Peshawar High Court

 2145
5. The record reveals that the Investigating Officer has
not examined the electric pole to find electric leakage or presence
of current therein which was indeed the most important aspect to
be attended to in the investigation of this case. Therefore, the
allegation that there was presence of current because of leakage in
the electric pole does not stand established on the record.

6. It is, however, correct that the Doctor receiving the

dead body in the OPD mentioned in its slip the cause of death as
electric shock but it is not clear whether this opinion was based on
his own observation or on the information furnished by the
complainant. In any case the cause of death cannot be said to have
been established on the record firstly because no postmortem was
conducted and secondly because Dr. Zakir who received the dead
body of the deceased in the O.P.D. was not examined in the Court.
Though Dr. Ghazali, who was allegedly conversant with the
signature of the said doctor was examined to prove his observation
on the O.P.D. slip but his statement cannot be admitted into
evidence when it is not proved on the record that the latter was
incapable of giving evidence or that his presence could not be
secured without an unreasonable amount of delay and expense.. In
the case of Ali Haider..Vs..The State (PLD 1958 SC 392), it was
held by the Hon’ble Supreme Court that where there was a flagrant
disregard of the provisions of section 33 of the Evidence Act now
Article 47 of the Order, in transferring statements of the
Prosecution witnesses in question to the Sessions record, without
laying down the foundation for that course, by adducing strict
proof that the witnesses were incapable of giving evidence or that
their presence could not be secured without an amount of delay or
expense which under the circumstances of the case, was
unreasonable, such statement could not be admitted into evidence.

6. When considered in the light of the foregoing

discussion and the judgment cited above, I do not think, the case
against the respondents has been proved beyond doubt and
therefore, the order of acquittal being based on proper appraisal of
evidence is not open to any exception.

Peshawar High Court

 2146
7. For the reasons discussed above, this criminal appeal
being without substance is dismissed.

Dated:18.5.2005 JUDGE

Peshawar High Court

 2147
Shamim Jan --- Appellant/Petitioner (s)
Versus
Abdul Sabir --- Respondent (s)

JUDGMENT
Cr.M. No. 361/2005 Date of hearing 20.05.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and his absconding co-accused
under sections 302/324/109 PPC., vide FIR No.302 dated
13.9.2004, Police Station Zaida, seeks his release on bail on the
ground that the role attributed to him is one of ‘Lalkara’ and that
what was the true import of ‘Lalkara’ is a question requiring
further inquiry. Relies on the case of Tariq Zia..Vs..The State
(2003 SCMR 958). The learned Acting Advocate General
appearing on behalf of the State does not oppose the grant of bail
for the same reason advanced by the learned counsel for the
petitioner.

2. As against that the learned counsel appearing on

behalf of the complainant argued that where there is no previous
enmity between the parties, the question of false implication does
not arise, therefore, the petitioner who indeed abetted the crime by
inciting his son does not deserve the concession of bail. Relies on
the case of Rehmatullah..Vs..The State and another (1989
P.Cr.L.J. 579).

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. What was the true import of ‘lalkara’ in the

circumstances of the case, is a question requiring further inquiry,
the moreso when the petitioner did not swing even his hand to
show that he shared common intention with the absconding co-
accused. The case of Tariq Zia..Vs.. The State (Supra) may well
be referred in this behalf.

Peshawar High Court

 2148
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.1,00,000/- (Rs. One lac) with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dataed:20.5.2005. JUDGE

Peshawar High Court

 2149
Sadiq Shah --- Appellant/Petitioner (s)
Versus
Zia-ur-Rehman --- Respondent (s)

JUDGMENT
Cr.M. No. 447/2005 Date of hearing 20.06.2005

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them, their acquitted and
absconding co-accused under sections 302/324/148/149 PPC., vide
FIR No.268 dated 1.5.2001, Police Station Sardheri, when failed to
get the concession of bail from the lower forums, asked therefor by
moving this Court.

2. It was argued by the learned counsel for the

petitioners that the case of the present petitioners is almost at par
with those of their acquitted co-accused, therefore, their
abscondence will not come in their way to get bail, that too, when
otherwise a case of further inquiry is made out and the prosecution
evidence has not been believed qua the acquitted co-accused .

3. As against that, the learned counsel appearing on

behalf of the complainant argued, that it is by now settled law that
a fugitive from law is not entitled to bail merits of the case
notwithstanding, therefore, none of the petitioners deserves the
concession of bail.

4. The learned D.A.G. appearing on behalf of the State

does not oppose the grant of bail to petitioner Tahir Khan.
However, he opposes the grant of bail to the other petitioner as he
is charged for firing effective shot on the complainant.
5. I have gone through the record carefully and
considered the sub missions of the learned counsel for the parties.

6. The record reveals that petitioner Sadiq Shah is

charged for causing a simple injury on the person of the
complainant while the other is charged for firing ineffective shots.

Peshawar High Court

 2150
Whether the petitioners in fact shared common intention with the
absconding and the acquitted co-accused and participated in the
commission of the crime or they were charged because they
happened to be brothers inter-se, are the questions which require
further inquiry.

7. The argument that an accused who remained

fugitive from law is not entitled to bail merits of the case
notwithstanding, is not one of universal application and cannot be
taken to an illogical extreme when the charge does not appear to be
free from the taint of exaggeration, in view of the finding of
acquittal of at least two of the co-accused.

8. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rs. Three lacs)
each with two sureties each in the like amount to the satisfaction of
the Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:20.6.2005 JUDGE

Peshawar High Court

 2151
Muhammad Hussain --- Appellant/Petitioner (s)

Versus
Jehanzeb --- Respondent (s)

JUDGMENT
Cr.M. No. 485/2005 Date of hearing 20.06.2005

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under sections 324/34
PPC., vide FIR No.291 dated 20.6.2003, Police Station
Pishtakhara, when failed to get the concession of bail from the
lower forums, asked therfor by moving this Court.

2. It was argued by the learned counsel for the

petitioners that the alleged plight of the complainant could be
caused by one person for which father and son both have been
charged; that injuries on the person of the complainant are simple
and that a case of murderous assault is not made out, when the
occurrence ended without the intervention of any body.

3. As against that, the learned DAG appearing on

behalf of the State argued that petitioners being charged for firing
effective shots on the person of the complainant, do not deserve the
concession of bail, moreso when there is a prolonged noticeable
unexplained abscondence for almost two years to their discredit.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. Whether the occurrence could be an adventure of

two persons or the number of assailants was exaggerated and
whether the petitioners could be saddled with the intention to
commit murderous assault when the injuries on the person of the
complainant are simple in nature, there was no repetition and the
occurrence ended without the intervention of any body are the
questions which require further inquiry. Needless to say that once

Peshawar High Court

 2152
the case of the petitioners is held to be one of further inquiry,
abscondence alone will not come in the way of their entitlement to
be released on bail.

6. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rs. Three lacs)
each with two sureties each in the like amount to the satisfaction of
the Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:20.6.2005 JUDGE

Peshawar High Court

 2153
Payo Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 50/2005 Date of hearing 23.06.2005

EJAZ AFZAL KHAN J.- The petitioner through the

instant petition seeks the custody of the vehicle bearing
Registration No.C-5267 DIK mainly on the ground that he is its
owner and that the claim of his ownership is fully supported by the
documents on the record and the report of the Police Officer made
pursuant to the order of this Court.

2. As against that, the learned counsel appearing on

behalf of the State opposes the petition by submitting that the
petitioner is not entitled to the custody of the vehicle
notwithstanding the documents of ownership, as it was used in the
commission of a crime under section 9 of the CNSA.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, the very fact that the claim o f

the petitioner is supported by the relevant documents and the report
of the Police Officer made pursuant to the order of this Court will
justify the grant of custody of the vehicle to the petitioner,
particularly when there is no other rival claimant so far.

5. For the reasons discussed above, this petition is

allowed, the impugned order is set aside and the local Police is
directed to release the vehicle to the petitioner, if he furnishes bail
bond in the sum of Rs.6,00,000/- (Rs. Six lacs) with two sureties
each in the like amount to the satisfaction of the learned trial
Court. However, this order will not prejudice the claim of any rival
claimant, if any.

Dated:23.6.2005 JUDGE

Peshawar High Court

 2154
Mufti Abdul Baseer --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 520/2005 Date of hearing 01.07.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him under section 302/34 PPC. , vide
FIR No.119 dated 5.3.2005, Police Station Doaba (Hangu) seeks
his release on bail mainly on the ground that there is absolutely no
evidence whatever on the record to connect the petitioner with the
crime and that the charge has been thrown at his door steps on the
basis of suspicion.

2. As against that, the learned counsel for the State

assisted by the learned counsel for the complainant, opposes the
grant of bail by arguing that the parties are locked in previous
blood feud with each other, therefore, it can reasonably be inferred
in the circumstances of the case, that it was the petitioner who
enacted this tragedy alongwith his absconding co-accused.

3. I have gone through the record carefully and

considered the sub missions of the learned counsel for the parties.

4. As there is no ocular or circumstantial evidence of

the nature as could reasonably connect the petitioner with the
crime, I do not see any strong reason to withhold the concession of
bail to him. Therefore, this petition is allowed and the petitioner is
directed to be released on bail, provided, he furnishes bail bond in
the sum of Rs.3,00,000/- with two sureties each in the like amount
to the satisfaction of the Illaqa/Duty Magistrate who is to ensure
that the sureties are local, reliable and men of means.

Dated:1.7.2005 JUDGE

Peshawar High Court

 2155
Mian Sae Jan --- Appellant/Petitioner (s)
Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 712 /2005 Date of hearing 12.08.2005

EJAZ AFZAL KHAN J.- The petitioner through the

instant petition who is charged in a case registered against him
under section 9 of the CNSA read with section 13 A.O., vide FIR
No.113 dated 18..5.2005, Police Station Battal, sought his release
on bail mainly on the ground that section 13 A.O. is bailable while
in view of the quantity of the substance recovered from him in the
other offence, which marginally exceeds one K.G., there is no
possibility of awarding him a sentence attracting prohibitory
clause.
2. The learned AAG though vehemently opposed the
grant of bail but could not point out any strong reason to justify its
refusal.
3. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

4. As in view of the quantity of the substance

recovered from the petitioner which marginally exceeds one K.G.,
I doubt he can be awarded a sentence attracting prohibitory clause,
while in the other offence which is bailable, he is entitled to be
released on bail as of right.

5. In this view of the matter, this petition is allowed

and the petitioner is directed to be released on bail, if he furnishes
bail bond in the sum of Rs. 1,00,000/- (Rs. One lac) with two
sureties each in the like amount to the satisfaction of the Illaqa/
Judicial Magistrate who is to ensure that the sureties are local,
reliable and men of means.

Dated:12.8.2005 JUDGE

Peshawar High Court

 2156
Hidayatullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 258/2005 Date of hearing 12.08.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and another under sections 337F
(i), 337 A (ii)/34 PPC., vide FIR No.113 dated 15.5.2005, Police
Station Parova, when failed to get the concession of bail from the
lower forums, moved this Court threfor.

2. The gist of the arguments of the learned counsel for

the petitioner is that though the bone of the victim has been
exposed, yet the offence the petitioner is charged with will not
attract the prohibitory clause of section 497 Cr. P.C. to justify
refusal of bail.

3. As against that, the learned A.A.G.appearing on

behalf of the State assisted by the complainant argued that though
the offence does not attract prohibitory clause, yet the petitioner
cannot be granted bail as of right when he acted in a high handed
manner.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. It is not understandable as to why and how did the

learned Additional Sessions Judge refuse bail to the petitioner in
this case notwithstanding the fact that both the offences he is
charged with are punishable with ‘daman’ and sentence of
imprisonment being discretionary can only be awarded to the
accused in exceptional cases. The refusal is all the more
unjustified when there was nothing extra ordinary and unusual in

Peshawar High Court

 2157
this case to treat it as an exception to the general rule enunciated in
the case of Tariq Bashir and 5 others..Vs.. The State (PLD 1995
S.C. 34). This petition is, therefore, allowed and the petitioner is
directed to be released on bail, if he furnishes bail bond in the sum
of Rs.10,000/- with one surety to the satisfaction of the Illaqa/
Judicial Magistrate.

Dated:12.8.2005 JUDGE

Peshawar High Court

 2158
Khan Zameer --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 128/2005 Date of hearing 12.08.2005

EJAZ AFZAL KHAN J.- The petitioner through the

instant petition seeks the custody of the vehicle allegedly involved
in the commission of a crime registered against him under articles
¾ of the Prohibition (Enforcement of Hadd ) Order 1979, vide FIR
No.495 dated 31.5.2005, Police Station Faqir Abad, mainly on the
ground that he besides being its owner was last found in its
possession.

2. As against that, Mr. Waseem Tariq, learned counsel

for the State opposes the grant of custody on the ground that the
documents produced by the petitioner being doubtful cannot be
pressed into service to claim the custody of the vehicle.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, the very fact that the petitioner

was last found in possession of the vehicle at the time, it was
recovered, will entitle him to its custody quite apart from the
merits of his claim on the basis of ownership.

5. For the reasons discussed above, this petition is

allowed, custody of the vehicle in question be handed over to the
petitioner, if he furnishes a bond in the sum of Rs.3,25,000/-
(Rs.Three lacs and twenty five thousand) to the satisfaction of the
Illaqa/ Judicial Magistrate.

Dated:12.8.2005 JUDGE

Peshawar High Court

 2159
Wahid Gul --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 819/2005 Date of hearing 22.08.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case under sections 379/411 PPC., vide FIR No.77 dated
1.7.2005, Police Station Railway Cantt: Peshawar, when failed to
get the concession of bail from the lower forums asked therefor by
moving this Court.

2. It was argued by the learned counsel for the petitioner

that even if the allegations leveled against the petitioner are taken
to be true, only a case falling within the ambit of section 411 PPC.
is made out which being punishable with 3 years imprisonment or
fine or both shall be bailable.

3. As against that, the learned DAG appearing on behalf

of the State does not dispute this legal as well as factual position.

4. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

5. The very fact that the case made out against the
petitioner falls within the ambit of section 411 PPC. will entitle
him to be released on bail, as grant of bail in such like cases is a
rule and refusal is an exception. I, therefore, allow this petition and
direct the release of the petitioner on bail if he furnishes bail bonds
in the sum of Rs.50,000/- with two sureties each in the like amount
to the satisfaction of the Illaqa/ Judicial Magistrate who is to
ensure that the sureties are local, reliable and men of means.

Dated:22.8.2005 JUDGE

Peshawar High Court

 2160
Muhammad Zahir Khan --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 836/2005 Date of hearing 22.08.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case under sections 13/14 A.O./7 STA/3/4 of the Prohibition
(Enforcement of Hadd) Order, 1979, registered against him, vide
FIR No.683 dated 1.8.2005, Police Station Badaber, seeks his
release bail mainly on the ground that none of the offences he is
charged with entails a sentence of more than 7 years.

2. The learned DAG appearing on behalf of the State

vehemently opposes the grant of bail by arguing that a huge
quantity of arms and ammunition besides 3 bottles of alcohol have
been recovered from the petitioner, therefore, he does not deserve
the concession of bail at least at this stage, notwithstanding his
case does not fall within the prohibitory clause.

3. I have gone through the record carefully and

considered the sub missions of the learned counsel for the parties.

4. Since in view of the judgment rendered in the case of

Tariq Bashir and 5 others..Vs..The State (PLD 1995 Supreme
Court 34), in all the cases which are not punishable with 10 years
imprisonment or above, grant of bail is a rule and refusal is an
exception. I do not see any strong reason to withhold the
concession of bail. This petition is thus allowed and the petitioner
is directed to be released on bail, if he furnishes bail bonds in the
sum of Rs.3,00,000/- (Rs. Three lacs) with two sureties each in the
like amount to the satisfaction of Illaqa/ Judicial Magistrate who is
to ensure that the sureties are local, reliable and men of means.

Dated:22.8.2005 JUDGE

Peshawar High Court

 2161
Jamil Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 768/2005 Date of hearing 26.08.2005
(2005 PCrLJ Peshawar 2003)

EJAZ AFZAL KHAN J.- Jamil Khan, petitioner herein,

who is charged in a case registered against him under section
324/34 PPC., vide FIR No.303 dated 25.6.2005, Police Station
Naurang, seeks his release on bail mainly on the ground that the
story of catching hold of a person being fired at, is not believable
on the face of it and that the learned Additional Sessions Judge has
not exercised his discretion judicially by refusing bail.

2. As against that, the learned AAG does not seriously

dispute this proposition.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The story of catching hold of a person who is fired

at prima facie appears to be unbelievable as no person will expose
himself to the risk of being hit by doing so. Therefore, a case for
bail is made out.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.10,000/- (Rs. Ten thousand)
with one surety to the satisfaction of Illaqa/ Judicial Magistrate.

Dated: 26.8.2005 JUDGE

Peshawar High Court

 2162
Qismatullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 289/2005 Date of hearing 02.09.2005

EJAZ AFZAL KHAN J.- The petitioner who is charged

in a case registered against him and 3 others under sections
457/380 PPC., vide FIR No.130 dated 29.4.2005, Police Station
Mandan, seeks his release on bail mainly on the ground that his co-
accused who has been attributed a similar role has since been
granted bail by the learned Additional Sessions Judge and that the
incriminating material allegedly recovered at his instance cannot
be said to be a stolen property, when no identification parade has
been held so far in respect thereof.

2. The learned AAG appearing on behalf of the State

opposes the grant of bail by arguing that the charge made in the
FIR is supported to the hilt by the recovery of the incriminating
material at the instance of the petitioner, therefore, he does not
deserve the concession of bail, particularly when the offence he is
charged with is one of moral turpitude.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the incriminating material recovered at the

instance of the petitioner could be termed as a stolen property by
any attribute is a question requiring further inquiry, the moreso
when no identification parade has been held so far to establish its
nexus with the episode of theft. In this view of the matter, I do not
see any strong reason to withhold the concession of bail to the
petitioner, that too, when his co-accused having similar role has
been granted bail by the learned Additional Sessions Judge Bannu.

Peshawar High Court

 2163
Needless to say that the ultimate conviction, if any, would repair
the wrong caused by a mistaken relief of bail but there could be no
reparation for an unjustified incarceration, if the accused is to be
acquitted ultimately.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bond in the sum of Rs.2,00,000/- (Rs. Two lacs) with
two sureties each in the like amount to the satisfaction of the
Illaqa/ Judicial Magistrate.

Dated:2.9.2005 JUDGE

Peshawar High Court

 2164
Amer Rehman --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 871/2005 Date of hearing 16.09.2005

EJAZ AFZAL KHAN J.- Bail is sought by the petitioner

in a case registered against him and another under section 9 CNSA,
vide FIR No.441 dated 26.7.2005, Police Station Topi, District
Swabi, on the sole ground that he boarded the vehicle as a
passenger and that he was not aware of the narcotics carried in the
secret cavities of the vehicle. Reliance has been placed on the case
of Khan Sher –Vs- The State in Cr. Misc: No.827 of 2004
decided on 27.9.2004.

2. As against that, the learned A.A.G. appearing on

behalf of the State, argued that in view of the quantum of the
substance recovered, the case falls within the prohibitory clause,
therefore, the appellant does not deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the petitioner can be held to be in conscious

possession of the substance recovered from the secret cavities of
the vehicle, when he was also not driving the car, is a question
requiring further inquiry. The case of Khan Shair –Vs- The State
(Supra) may well be referred in this behalf.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.5,00,000/- with two sureties
each in the like amount to the satisfaction of the Illaqa/ Judicial

Peshawar High Court

 2165
Magistrate who is to ensure that the sureties are local, reliable and
men of means.

Dated:16.9.2005 JUDGE

Peshawar High Court

 2166
Muhammad Fayyaz --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 954/2005 Date of hearing 29.09.2005

EJAZ AFZAL KHAN J.- The petitioners who are

charged in a case registered against them under section 489-B-C
PPC., vide FIR No.787 dated 14.8.2005, Police Station Chamkani
Peshawar, seek their release on bail on the ground that there is
nothing on the record to show that besides possessing counterfeit
currency notes, they had any intention to use them as genuine.

2. As against that, the learned A.A.G. appearing on

behalf of the State argues that the very quantity of the counterfeit
currency notes shows that petitioners possessed them for using
them as genuine, therefore, the offence being covered by section
489-B of the PPC. falls within the ambit of prohibitory clause.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether the petitioners besides possessing the

counterfeit currency notes could be saddled with the responsibility
of trafficking or using them as genuine, is a question which
requires further inquiry, particularly when there is absolutely no
evidence so far on the record to substantiate it. The fact that the
petitioners remained in Jail for more than 2 months and yet there is
no prospect of commencement of their trial would further tilt the
scales of justice in favour of bail rather than Jail.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail, if
they furnish bail bonds in the sum of Rs.2,00,000/- (Rs. Two lacs)

Peshawar High Court

 2167
with two sureties each in the like amount to the satisfaction of
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:29.9.2005 JUDGE

Peshawar High Court

 2168
Muhammad Naeem --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 114/2005 Date of hearing 29.09.2005

EJAZ AFZAL KHAN J.- The petitioner claims the

custody of the vehicle bearing No.IDA 7984 allegedly used in the
transportation of local liquor on the ground that he is its owner and
that it was not used with his consent or connivance, in the
commission of the crime.

2. As against that, the learned AAG appearing on

behalf of the State opposes the grant of its custody to the petitioner
by submitting that it was transferred to his name after the
registration of the case, as such he is not entitled thereto.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Be all that as it may, since transportation of liquor

even if proved cannot culminate in the confiscation of the vehicle,
I do not see any reason much less strong to refuse its custody to the
petitioner who is its prima-facie owner as per entry made on its
registration which was perused by the Court as well as learned
AAG during the course of arguments.

5. For the reasons discussed above, this petition is

allowed and the custody of the vehicle is directed to be handed
over to the petitioner, if he furnish bail bond in the sum of
Rs.3,00,000/- (Rs. Three lacs) with two sureties each in the like
amount to the satisfaction of the Illaqa/ Judicial Magistrate who is
to ensure that the sureties are local, reliable and men of means.

Dated:29.9.2005 JUDGE

Peshawar High Court

 2169
Taj Muhammad --- Appellant/Petitioner (s)

Versus
The State ---Respondent (s)

JUDGMENT
Cr.M. No. 821/2005 Date of hearing 30.09.2005

EJAZ AFZAL KHAN J.- Taj Muhammad, petitioner

herein, who is charged in a case registered against him and one
another under sections 324/34 PPC., vide FIR No.337 dated
22.5.2004 Police Station Chamkani, when failed to get the
concession of bail from the lower forums asked therefor by moving
this Court.

2. It was argued by the learned counsel for the

petitioner that where two persons have been charged for a single
entry wound without specifying as to whose shot turned effective,
the petitioner deserves the concession of bail, that too, when it
cannot be ruled out that the charge was exaggerated. He next
submitted that presence of charring marks around the wound on the
person of the victim would go along way to negate the prosecution
version, when according to the site plan, he was fired at from a
distance of ten paces.

3. As against that, Mr. Abdur Rauf Gandapur, learned

counsel appearing on behalf of the State, argued that where the
petitioner is directly charged in the FIR for having fired a shot on
the victim, he does not deserve the concession of bail, that too,
when he remained absconder.
4. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.

5. Who out of the two fired effective shot at the victim

and how firearm injury on the person of the latter could be
accompanied by a charring mark, when the shot, according to the

Peshawar High Court

 2170
site plan, was fired from a distance of ten paces are the questions
requiring further inquiry.

6. The argument that the petitioner remained

absconder for considerable lapse of time will not be of much
consequence, once it is held that the case is one of further inquiry.

7. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail, if he
furnishes bail bonds in the sum of Rs.3,00,000/- (Rs. Three lacs)
with two sureties each in the like amount to the satisfaction of
Illaqa/ Judicial Magistrate who is to ensure that the sureties are
local, reliable and men of means.

Dated:30.9.2005 JUDGE

Peshawar High Court

 2171
ABDUR RAZAQ----Petitioner

Versus

RAB NAWAZ and another----Respondents

JUDGMENT

Cr.M/BCA No.650/2009 Decided on 31.08.2009

2009 P Cr. L J 1456 Peshawar
Criminal Procedure Code (V of 1898)---

Ejaz Afzal Khan, J ----S. 497(5)---Penal Code (XLV of

1860), S.324/34---Bail, cancellation of---Application for---Data
available on the record showed that respondent/accused had been
charged for firing a shot on the complainant, resulting in as many
as five pellet injuries out of which one resulted in the fracture of
his mandible---Intention to kill was not open to any doubt, when
vital part of body of the complainant had been aimed at---Case for
further inquiry could not be made out when accused, prima facie
was saddled with the responsibility of attempting at the life of the
complainant---Grant of bail, in the circumstances, would hardly be
called for, even on the basis of a cross case, which was not a rule
of universal application---Bail granted to accused was recalled and
he was taken into custody.

M. Qasim Khan Khattak for Petitioner.

Zahid Yousaf A.A.-G. for the State.
Khawaja Muhammad Khan for Respondent No.1.
Date of hearing: 31st August, 2009.

JUDGMENT

EJAZ AFZAL KHAN, J.--- Petitioner through the instant petition

seeks annulment of the order dated 27-4-2009 of the learned
Peshawar High Court
 2172
Additional Sessions Judge, Karak at Takht-e-Nasrati whereby he
granted post arrest bail to the accused-respondent Rab Nawaz in a
case registered against him and two others under section 324/34,
P.P.C. vide case F.I.R. No.33 dated 21-2-2009 in Police Station
Takht-e-Nasrati District Karak.

2. Learned counsel appearing on behalf of the petitioner contended

that when accused-respondent has been charged for firing effective
shot on the complainant resulting in the fracture of maundible, it
was not a case for bail and that the order granting bail for being
perverse, capricious, arbitrary and whimsical cannot be sustained.

3. As against that the learned counsel appearing on behalf of the

accused-respondent contended that in view of the cross case
registered against the petitioner at the instance of the accused
party, a case for further inquiry is made out and that the impugned
order being based on proper appraisal of data on the record merits
no interference.

4. I have gone through the available record carefully and

considered the submissions of the learned counsel for the parties.

5. According to the data available on the record the accused-

respondent has been charged for firing a shot on the
complainant resulting in as many as five pellet injuries out of
which one resulted in the fracture of his mandible. Intention to
kill is not open to any doubt at least at this stage when vital
part of body appears to have been aimed at. How a case for
further inquiry could be made out when the petitioner is, prima
facie, saddled with the responsibility of attempting at the life

Peshawar High Court

 2173
of the complainant. Grant of bail in the circumstances of the
case would hardly be called for, even on the basis of a cross
case which is not a rule of universal application.

6. For the reasons discussed above, this petition is allowed and

the bail granted to the accused-respondent is recalled. He be
taken into custody. However, the learned trial Court is directed
to conclude his case within a period of two months positively,
failing which the petitioner may, if so advised, repeat his
petition for bail.

H.B.T./176/P
Application allowed.

Peshawar High Court

 2174
Taj Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1496/2009 Date of hearing 18.09.2009

EJAZ AFZAL KHAN, J.- Petitioner who is charged in a

case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.207 dated
15.05.2009 in Police Station Khazana, Peshawar, seeks his release
on bail, firstly on the ground that despite direction of this Court,
trial has not been concluded within the stipulated time and
secondly on the ground that he cannot be awarded maximum
sentence provided by the statute for possessing 1850 grams of
“Charas”.

2. The learned Additional Advocate General appearing

on behalf of the State argues that the petitioner is a narcotic
peddler and has been indulging in this business since long,
therefore, he does not deserve the concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. When the trial of the petitioner, despite direction of

the Court, has not been concluded within the stipulated time, I do
not think there remains any justification to keep him in jail that too
when it is doubtful that he can be awarded the maximum sentence
provided by the statute for possessing 1850 grams of “Charas”.
Needless to say that the magnitude of sentence always in variably
follows the magnitude of the crime.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on

Peshawar High Court

 2175
furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty
thousand) with two sureties, each in the like amount to the
satisfaction of the Trial Court, who is to ensure that the sureties are
local, reliable and men of means.

Announced.
18. 09. 2009 JUDGE

Peshawar High Court

 2176
MUHAMMAD NAEEM---Petitioner

Versus

THE STATE---Respondents

JUDGMENT

Cr.M No. 320/2009 Decided on 24.09.2009

(2009 M L D 1490)

Criminal Procedure Code (V of 1898)

E ja z Af za l K h a n , J ----S.497(2)---Control of Narcotic
Substances Act (XXV of 1997), S. 9(c)---Prohibition (Enforcement
of Hadd) Order (4 of 1979), Arts. 3/4---Bail, grant of---Further
inquiry---Accused who was driving the vehicle from which
incriminating substance was allegedly recovered, after seeing the
Police made no effort to decamp from the scene of occurrence;
while one of co-accused:-not only tried but succeeded in making
his escape good from the spot---Question, whether accused could
be . saddled with conscious possession of the incriminating
substance recovered from the vehicle in cartons, was one calling
for further inquiry---Fact that accused had been in jail for almost
four months, but commencement of his trial was not insight, would
also add in "favour of his bail rather than jail---Even attraction of
prohibitory clause of S. 497, Cr.P.C. would be doubtful in the case
when accused was likely to be awarded the maximum sentence
provided by the statute for possessing 5 kgs of charas as it was the
quantum of sentence always invariably followed the quantum of
substance recovered---Accused was directed to be released on bail,
in circumstances.

Zulfiqar Ahmad for Appellant.

Munir Ahmad Bhatti for Respondent.
Date of hearing: 24th September, 2009.

JUDGMENT

Peshawar High Court

 2177

EJAZ AFZAL KHAN, J.---The petitioner who is charged in a

case registered against him and two others under section 9(c)
CNSA r/w Articles 3/4 of Prohibition (Enforcement of Hadd)
Order, 1979 vide F.I.R. No.555, dated 27-5-2009 in Police Station
Cantt: Abbottabad, seeks his release on bail on the ground that in
the absence of any direct evidence on the record, the incriminating
substance recovered from the vehicle, he was driving at the time of
occurrence, cannot be fastened on him and that his co-accused who
are similarly placed and positioned have since been released on
bail.

2. As against that Mr. Munir Ahmed Bhatti Advocate appearing on

behalf of State argues that the driver being custodian of the vehicle
cannot be heard saying that he was not in conscious possession of
the incriminating substance recovered from the vehicle and that he
being prima facie connected with a crime attracting prohibitory
clause does not deserve concession of bail that too when the
menace of narcotics is likely to envelop the entire society in its
fold like a wild fire, if not checked with sternness.

3. I have gone through the record and considered the submissions

made at the Bar.

4. When petitioner after seeing the police made no effort to

decamp from the scene of occurrence and one of the co-accused
not only tried but succeeded in making his escape good from the
spot; the question whether petitioner can be saddled with conscious
possession of the incriminating substance recovered from the
vehicle in cartons is one calling for further enquiry. The fact that
petitioner has been in jail for almost four months and yet

Peshawar High Court

 2178
commencement of his trial let alone its conclusion is not in sight
would also add in favour of bail rather than jail. Even attraction of
prohibitory clause would be doubtful in this case when the
petitioner is likely to be awarded the maximum sentence provided
by the statute for possession 5 k.g. of charas as it is too settled that
the quantum of sentence always invariably follows the quantum of
substance recovered.

5. For the reasons discussed above, this petition is allowed and it is

directed that the petitioner be released on bail if he furnishes bail
bonds in the sum of Rs.1,00,000 (Rupees One lac) with two
sureties each in the like amount to the satisfaction of learned trial
Court, who shall ensure that the sureties are local, reliable and men
of means.

H.B.T./180/P. Bail granted.

Peshawar High Court

 2179
Zahoor --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1566/2009 Date of hearing 26.10.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997 / 353 / 324 / 34, PPC / 13 of the
Arms Ordinance, 1965, vide FIR No.449 dated 21.09.2009 in
Police Station Khazana, Peshawar, seeks his release on bail on the
grounds that he being the driver of the vehicle had no concern with
the incriminating substance recovered therefrom; that those who
were transporting the substance tried to decamp from the scene of
occurrence and that he is not likely to be awarded the maximum
sentence provided by the statute, even if, it is debited from his
account.

2. As against that the learned Additional Advocate

General appearing on behalf of the State argues that the release of
the petitioner on bail in such like cases is likely to vitiate the fabric
of the society as a whole because he would repeat the crime after
being released on bail.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Whether in the circumstances of the case, the

petitioner can be saddled with the responsibility of possessing the
incriminating substance recovered from the rear of the vehicle, he
was driving particularly when it was also boarded by as many as
three persons, who on seeing the police officials not only made
their escape good but also tried to assault them with their firearms,
is a question requiring further probe. The fact that the petitioner is
not likely to be awarded maximum sentence provided by the
Peshawar High Court
 2180
statute for possessing Three(3) kilograms of “Charas” is another
factor tilting in favour of bail rather than jail. Needless to say that
the magnitude of sentence always in variably follows the
magnitude of the crime.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
26. 10. 2009 CHIEF JUSTICE

Peshawar High Court

 2181
Aamir Shahzad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1609/2009 Date of hearing 30.10.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(B) of the Control of
Narcotics Substances Act, 1997, vide FIR No.775 dated
23.09.2009 in Police Station Hayatabad, Peshawar, seeks his
release on bail on the ground that for possessing 500 grams
“Charas”, he cannot be awarded the maximum sentence provided
by the statute.

2. The learned Additional Advocate General appearing

on behalf of the State does not seriously oppose the grant of bail in
view of the quantum of substance so recovered.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. How the petitioner could be refused bail by the

learned Additional Sessions Judge-III, Peshawar, when he is
charged for possessing 500 grams “Charas” is not understandable.
In any case since the petitioner cannot be awarded a sentence
attracting the prohibitory clause, I do not see any reason for
refusing bail to him.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.10,000/- (Rupees ten
thousand) with one surety, in the like amount to the satisfaction of

Peshawar High Court

 2182
the learned Trial Court, who is to ensure that the surety is local,
reliable and man of means.

Announced.
30. 10. 2009 CHIEF JUSTICE

Peshawar High Court

 2183
Kamil Jan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1594/2009 Date of hearing 02.11.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(B) of the Control of
Narcotics Substances Act, 1997, vide FIR No.45 dated 22.08.2009
in Police Station Anti-Narcotics Force, District Peshawar, seeks his
release on bail on the ground that for possessing 650 grams of
“Charas”, he cannot be awarded the maximum sentence provided
by the statute.

2. The learned counsel appearing on behalf of the

ANF though opposes the grant of bail to the petitioner but
advances no convincing argument in this behalf.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. How the petitioner could be refused bail by the

learned Judge, Special Court, Anti-Narcotics, Peshawar, when he
is charged for possessing 650 grams of “Charas” is not
understandable. In any case since the petitioner cannot be awarded
a sentence attracting the prohibitory clause, I do not see any reason
for refusing bail to him.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty
thousand) with two sureties, each in the like amount to the

Peshawar High Court

 2184
satisfaction of the Trial Court, who is to ensure that the sureties are
local, reliable and men of means.

Announced.
02. 11. 2009 CHIEF JUSTICE

Peshawar High Court

 2185
Rehman Shah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No 1599/2009 Date of hearing 02.11.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9 of the Control of
Narcotics Substances Act, 1997, vide FIR No.459 dated
04.07.2009 in Police Station Shahbaz Garh, Mardan, seeks his
release on bail on the grounds that he is not likely to be awarded
the maximum sentence provided by the statute for possessing 3000
grams of “Charas” and that he spent almost four months in jail,
yet, the commencement of his trial let alone its conclusion is not in
sight.
2. The learned counsel appearing on behalf of the
State argues that a person, who has made the trafficking of
narcotics as a business, is not entitled to the concession of bail,
notwithstanding, he may not be likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Since, the quantum of sentence has to be in

proportion to the quantum of substance recovered. I doubt the
petitioner can be awarded a sentence attracting the prohibitory
clause. The fact that the petitioner spent almost four months in jail
would further tilt the scales of justice in favour of bail rather than
jail, that too, when the commencement of his trial let alone its
conclusion is not in sight.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on

Peshawar High Court

 2186
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
Trial Court, who is to ensure that the sureties are local, reliable and
men of means.

Announced.
02. 11. 2009 CHIEF JUSTICE

Peshawar High Court

 2187
Muhammad Islam --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT

Cr.M. No. 1658/2009 Date of hearing 06.11.2009

EJAZ AFZAL KHAN, C.J.- Petitioner Wajid Ali, who

is charged in a case registered against him under Section 365-A
ATA, vide FIR No.58, dated 26-9-2009 in Police Station East,
Peshawar, seeks his release on bail mainly on the ground that his
co-accused similarly placed has been granted bail, vide order dated
25-2-2010 of this court.

2. The learned AAG appearing on behalf of the

respondents could not refer to anything as could draw a line of
distinction between the case of the petitioner and that of the co-
accused. When that being the case, we cannot decline the
concession of bail. Needless to say that alike are to be treated alike.
We thus allow this petition and direct release of the petitioner on
bail he is not likely to be awarded maximum sentence provided by
the Statute for possessing 3000 grams of Chars and that he has
been in jail for more than four months but the commencement of
his trial let alone its conclusion is not in sight.

2. Learned Additional Advocate General, appearing on

behalf of the State, argues that no leniency be shown to the persons
who are prima facie peddlers as it is likely to affect the smooth
sailing of the society as a whole.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

Peshawar High Court

 2188
4. Since the quantum of sentence has to be
commensurate with the quantum of substance recovered, I doubt
petitioner can be awarded maximum sentence provide by the
Statute. I, therefore, do not see any strong reason to withhold the
concession of bail that too when the petitioner has been in jail for
more than four months.

5. The argument that no leniency be shown to the

persons who are prima facie peddlers as it is likely to affect the
smooth sailing of the society, may not be wholly without substance
but such person cannot be left on tenterhook in jail for an indefinite
period of time when speedy trial is also one of their recognized
rights. The more so when commencement of trial let alone its
conclusion is not in sight.

5. For the reasons discussed above, this petition is

allowed and it is directed that the petitioner be released on bail if
he furnishes bail bonds in the sum of Rs. Two lac, with two
sureties, each in the like amount to the satisfaction of the
Illaqa/Judicial Magistrate.

CHIEF JUSTICE
Announced on
6th Nov .2009.

Peshawar High Court

 2189
Shahzad Gul --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1666/2009 Date of hearing 16.11.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Sections 13 / 14 of the Arms
Ordinance, 1965, vide FIR No.876 dated 04.10.2009 in Police
Station Akora, seek his release on bail on the ground that the
possession of more than one unlicenced arm and ammunition
would not make the case non-bailable, therefore, bail can still be
asked as of right.

2. The learned Additional Advocate General appearing

on behalf of the State argues that recovery of huge quantity of arms
and ammunitions from the possession of the petitioner is quite
alarming in a situation, which is already laden with alarm and
apprehension, therefore, grant of bail in the circumstances would
be highly undesirable, if not illegal.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since, despite number of the unlicenced arms and

ammunition, recovered from the possession of the petitioner,
offences he is charged with would still remain bailable. I do not
see any reason much less legal for refusal of bail to the petitioner.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac), with two sureties, each in the like amount to the satisfaction

Peshawar High Court

 2190
of the learned Trial Court, who is to ensure that the sureties are
local, reliable and men of means.

Announced.
16. 11. 2009 CHIEF JUSTICE

Peshawar High Court

 2191
Ikram --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1723/2009 Date of hearing 16.11.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.923 dated
18.10.2009 in Police Station Akora Khattak, seeks his release on
bail on the ground that for possessing two kilograms of “Charas”,
he is not likely to be awarded the maximum sentence provided by
the statute.

2. The learned Additional Advocate General appearing

on behalf of the State argues that the sentence provided by the
statute is, prima facie, attracting the prohibitory clause, therefore, it
would be rather presumptive to say that the petitioner is not likely
to be awarded the maximum sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.
4. Since the quantum of sentence has to be
commensurate with the quantum of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting the
prohibitory clause for possessing two kilograms of “Charas”.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.
Announced.
16. 11. 2009 CHIEF JUSTICE
Peshawar High Court
 2192
Sahar Gul --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1720/2009 Date of hearing 23.11.2009

EJAZ AFZAL KHAN, CJ.- Petitioners who are charged

in a case registered against them under Section 9 of the Control of
Narcotics Substances Act, 1997, vide FIR No.758 dated
08.10.2009 in Police Station Tangi, District Charsadda, seek their
release on bail on the ground that they are not likely to be awarded
the maximum sentence provided by the statute for possessing one
kilogram of “Charas” each.

2. Mr. Qaisar Rasheed, the learned Additional

Advocate General, appearing on behalf of the State opposes the
grant of bail to the petitioners by submitting that the bail cannot be
granted on presumptive ground and that the offence, the petitioners
are charged with, prima facie, attracts the prohibitory clause.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since, the quantum of sentence has to be in

proportion to the quantum of substance recovered, I doubt the
petitioners can be awarded a sentence attracting the prohibitory
clause for possessing one kilogram of “Charas” each.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties each, each in the like amount to the satisfaction

Peshawar High Court

 2193
of the learned Trial Court, who is to ensure that the sureties are
local, reliable and men of means.

Announced.
23. 11. 2009 CHIEF JUSTICE

Peshawar High Court

 2194
Ijaz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1646/2009 Date of hearing 23.11.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him and another under Section 302 / 34,
PPC vide FIR No.18 dated 09.01.2009 in Police Station Umerzai,
seeks his release on bail on the ground that the matter has been
patched up between him and the legal heirs of the deceased; that
the major legal heirs have pardoned him and that he is ready to
deposit the share of “Diyat” of the minors in the Trial Court.

2. Mr. Qaisar Rasheed, the learned Additional

Advocate General appearing on behalf of the state has no objection
to the release of the petitioner on bail, provided he deposits the
share of “Diyat” of the four minor children of the deceased in the
Trial Court.

3. The father, Famroz alias Feroz, mother Nihar Bibi,

widow Uzma Shaheen and brothers Shamroz and Nauman of the
deceased, present in the Court, affirm the above stated position.

4. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

5. As the major legal heirs of the deceased have

pardoned the petitioner and for the minor children of the deceased,
the petitioner is ready to deposit their share of “Diyat”, I do not see
any strong reason to withhold the concession of bail. This petition
is, thus, allowed and it is directed that the petitioner be released on
bail, provided he deposits the share of “Diyat” of the minors in the
Trial Court and furnishes bail bonds in the sum of Rs.3,00,000/-
Peshawar High Court
 2195
(Rupees three lac) with two sureties, each in the like amount to its
satisfaction.

Announced.
23. 11. 2009 CHIEF JUSTICE

Peshawar High Court

 2196
Farooq --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1455/2009 Date of hearing 04.12.2009

EJAZ AFZAL KHAN, CJ.- By this single judgment, I

propose to decide Cr. Misc (BA) No.1455/2009 and Cr. Misc (BA)
No.1741/2009, wherein, the petitioners, who are charged in a case
registered against them and another under Section 9 (C) of the
Control of Narcotics Substances Act, 1997, vide FIR No.96 dated
23.10.2008 in Police Station ANF, Peshawar, sought their release
on bail on the ground that despite direction of the Court to
conclude the trial within a period of four months, it has not been
done.
2. Mr. Tariq Kakar, Advocate, appearing on behalf of
the State argued that petitioners Farooq and Shah Ameen appear to
be in league with each other, notwithstanding, the recovery of the
incriminating substance was effected from the possession of the
latter. The former, the learned counsel added is equally involved as
he speeded up the car when signalled to stop. The learned counsel,
however, assured the conclusion of the trial within a period of one
month.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Though, the direction given to the prosecution to

conclude the trial within four months was not complied with but it
was not due to act of the Court but due to the law and order
situation prevailing around, I, thus, don’t feel inclined to grant the
bail to the petitioners. However, I direct the learned Trial Court to
conclude the trial within a period of two months, failing which, all

Peshawar High Court

 2197
the accused including the present petitioners shall be released on
bail, provided they furnish bail bonds in the sum of Rs.3,00,000/-
(Rupees three lac) with two sureties each, each in the like amount
to the satisfaction of the learned Trial Court, who is to ensure that
the sureties are local, reliable and men of means. It may, however,
be added that despite assurance of the learned counsel for the State
to conclude the trial within one month, a period of two months has
been fixed to cater for all the eventualities including the law and
order situation in the area.

Announced.
04. 12. 2009 CHIEF JUSTICE

Peshawar High Court

 2198
Nazir Muhammad alias German --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1847/2009 Date of hearing 04.12.2009

EJAZ AFZAL KHAN, J.- Petitioner who is charged in a

case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.935 dated
30.10.2009 in Police Station Swabi, seeks his release on bail on the
ground that for possessing 15 grams of “Heroin” and 1050 grms
of “Charas”, he is not likely to be awarded the maximum sentence
provided by the statute.

2. The learned Additional Advocate General appearing

on behalf of the State opposed the grant of bail to the petitioner by
submitting that the concession of bail cannot be granted on the
basis of hypothesis and presumptive arguments and that the
petitioner being, prima facie, connected with a crime, attracting the
prohibitory clause, doesn’t deserve the concession of bail at this
stage.
3. I have gone through the record carefully and
considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while seized of an
application for bail is not supposed to keep in view the maximum
sentence provided by the statute but one which is likely to be
entailed by the facts and circumstance of the case.

Peshawar High Court

 2199
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
04. 12. 2009 CHIEF JUSTICE

Peshawar High Court

 2200
Rahat Gul --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1848/2009 Date of hearing 11.12.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.686 dated
07.10.2009 in Police Station Pahari Pura, District Peshawar sought
his release on bail on the ground that for possessing 2 kilograms of
“Charas”, he is not likely to be awarded the maximum sentence
provided by the statute.

2. The learned Additional Advocate General appearing

on behalf of the State argued that where the data available on the
record connects the petitioner with the crime, attracting the
prohibitory clause, bail cannot be granted on the basis of
hypothesis and presumptive grounds.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.
4. Since the magnitude of sentence has to be
commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while seized of an
application for bail is not supposed to keep in view the maximum
sentence provided by the statute but the one likely to be entailed by
the facts and circumstance of the case.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on

Peshawar High Court

 2201
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
11. 12. 2009 CHIEF JUSTICE

Peshawar High Court

 2202
Diyar Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1921/2009 Date of hearing 11.12.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.612 dated
11.11.2009 in Police Station Rustam, District Mardan sought his
release on bail on the ground that despite having information in
advance, provisions of Section 21 of the CNSA were not complied
with and that for possessing 2980 grams of “Charas”, he is not
likely to be awarded the maximum sentence provided by the
statute.

2. The learned Additional Advocate General appearing

on behalf of the State argued that since the petitioner is a notorious
narcotic dealer, he does not deserve the concession of bail, even it
is presumed for a while that he is not likely to be awarded
maximum sentences provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Though, there are as many as three FIRs to discredit

of the petitioner but he has not been convicted in anyone of them.
Since the magnitude of sentence has to be commensurate with the
magnitude of the substance recovered, I doubt the petitioner can be
awarded a sentence attracting prohibitory clause for possessing the
above mentioned quantity of the substance. I, thus, don’t feel
persuaded to refuse the bail to the petitioner.

Peshawar High Court

 2203
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
11. 12. 2009 CHIEF JUSTICE

Peshawar High Court

 2204
Qadir --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1629/2009 Date of hearing 18.12.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him and another under Section 9(C) of the
Control of Narcotics Substances Act, 1997, vide FIR No.79 dated
10.04.2009 in Police Station Sarband, District Peshawar sought his
release on bail on the sole ground that despite the direction of this
Court, the trial has not been concluded within the stipulated time.

2. The learned Additional Advocate General appearing

on behalf of the State argued that the delay in concluding the trial
cannot be attributed to the Court or any official thereof. If the
record, the learned AAG added, was sent late because of some
manipulative tactics, its dividends cannot be allowed to be
encashed by the person, who is at their back.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Though, the trial has not been concluded in

accordance with the direction of this Court but the delay in not
concluding the trial cannot be attributed either to the prosecution or
the Court. Who doesn’t know that manipulative tactics are often
employed by the person on one end or another either under the
obligation or for the benefit of someone wielding influence as is
apparent from delayed submission of challan in the Trial Court.
The law and order situation prevailing in the country, too, cannot
be lost sight of as a good number of police contingents is deployed
on such duties. Apart from this, when the learned AAG assured the

Peshawar High Court

 2205
conclusion of the trial within a period of one and a half (1 ½)
month. I don’t feel inclined to grant bail to the petitioner.

5. For the reasons discussed above, this petition being

without substance is dismissed. However, it is expected that the
trial shall be concluded by the learned Trial Court within the time,
mentioned above.

Announced.
18. 12. 2009 CHIEF JUSTICE

Peshawar High Court

 2206
Hazrat Jamal --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1702/2009 Date of hearing 18.12.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997 read with Article 3 / 4 P.O, vide
FIR No.369 dated 01.10.2009 in Police Station Chakdara, Dir
Lower sought his release on bail on the ground that for possessing
1 kilograms of “Charas” and one liter of “liquor”, he is not likely
to be awarded the maximum sentence provided by the statute.

2. The learned Additional Advocate General appearing

on behalf of the State opposed the grant of bail to the petitioner by
submitting that the concession of bail cannot be granted on the
basis of hypothesis and presumptive arguments and that the
petitioner being, prima facie, connected with a crime, attracting the
prohibitory clause, doesn’t deserve the concession of bail at this
stage.
3. I have gone through the record carefully and
considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2207
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 12. 2009 CHIEF JUSTICE

Peshawar High Court

 2208
Ishtiaq --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1769/2009 Date of hearing 18.12.2009

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.03 dated 25.08.2009
in Police Station Anti Narcotics Force, District Haripur sought his
release on bail on the ground that for possessing 2 kilograms of
“Opium”, he is not likely to be awarded the maximum sentence
provided by the statute.

2. The learned counsel appearing on behalf of the

ANF argued that the petitioner is not entitled to be released on bail,
notwithstanding, he may not be awarded the maximum sentence
provided by the statute. The learned counsel next contended that
when the charge has been framed, it would not be in consonance
with the recognized practice of superior Courts to grant bail. In
support of his argument, the learned counsel relied on the case of
Muhammad Jahangir Baqar vs. State & others (PLD 2003 SC
525).

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. It has consistently held by this Court on the strength

of judgment rendered in the case of Amir vs. State (PLD 1972 SC
277) that the Court while hearing a petition for bail is not supposed
to keep in view the maximum sentence provided by the statute but
the one which is likely to be entailed by the facts and circumstance
of the case. The petitioner, who is charged for possessing two

Peshawar High Court

 2209
kilograms of “Opium” cannot be awarded a sentence attracting the
prohibitory clause, when the quantum of sentence follows the
quantum of the substance recovered. The fact that the petitioner
spent almost four months in jail would further tilt the scales of
justice in favour of bail rather than jail, that too, when the
commencement of his trial let alone its conclusion is not in sight.
The judgment cited by the learned counsel for the ANF being
distinguishable on facts has no perceptible relevance to the case in
hand.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 12. 2009 CHIEF JUSTICE

Peshawar High Court

 2210
Amjad Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 97/2009 Date of hearing 08.02.2010

EJAZ AFZAL KHAN, CJ.-Petitioners through the instant

petition seek transfer of the case pending in the Court of the
learned Additional Sessions Judge-XI, Peshawar to some other
Court on the ground that the learned Presiding Officer relegated
himself to a point where he exchanged hot words with the
petitioners.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioners.

3. No ground, much less, legal has been urged to

justify the transfer of the case from one Court to another, that too,
when the allegation of exchange of hot words has been denied by
the learned Presiding Officer of the Court in his comments.

4. For the reasons discussed above, this Cr.M.

(Transfer Application) being without substance is dismissed in
limine.

Announced.
08. 02. 2010 CHIEF JUSTICE

Peshawar High Court

 2211
Waqar Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 05/2010 Date of hearing 26.02.2010

EJAZ AFZAL KHAN, CJ.- This C.M. has been moved

for the transfer of case, pending in the Court of the learned
Additional Session Judge-VII, Mardan, to any other Court on the
ground that the learned Judge has examined the witnesses in the
absence of his counsel.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the parties.

3. Though the points urged at the bar may not

constitute a ground for transfer of case from one Court to another
in the strict sense of the word but where one of the parties harbors
an apprehension because of an act of the Court, even if innocuous
would not be that the case be heard by the same Judge, I, therefore,
allow this petition and direct that this case be transferred to learned
Sessions Judge Mardan for trial. This C.M. is disposed of
accordingly.

Announced.
26. 02. 2010 CHIEF JUSTICE

Peshawar High Court

 2212
Mst. Mehr Pari --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 142/2010 Date of hearing 01.03.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against her under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.60 dated 16.01.2010
in Police Station Nowshera Kalan, District Nowshera sought her
release on bail on the ground that the house, wherefrom the
incriminating substance was recovered, is joint; that the search
warrant was obtained on 14.01.2010 but the house was raided two
days later and that she is no likely to be awarded the maximum
sentence provided by the statute.

2. The learned Additional Advocate General appearing

on behalf of the State opposed the grant of bail to the petitioner by
submitting that the concession of bail cannot be granted on the
basis of hypothetical and presumptive arguments and that the
petitioner being, prima facie, connected with a crime, attracting the
prohibitory clause, doesn’t deserve the concession of bail at this
stage, especially, when there is nothing on the record to show that
she has been implicated because of some malice, mala fide or
ulterior motive.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the grounds urged by the petitioner can be

appreciated without deeper appreciation of evidence, which is not
the domain of this Court while hearing a petition for bail. The
petitioner being, prima facie, connected with a crime, attracting the

Peshawar High Court

 2213
prohibitory clause, doesn’t deserve the concession of bail, atleast,
at this stage.

5. For the reasons discussed above, this petition being

without substance is dismissed. Since the investigation in the case
is complete, the prosecution is directed to submit it to the Trial
Court within fifteen days while the latter is directed to conclude
the trial of the petitioner within a period two months, failing
which, the petitioner may, if so advised, approach this Court for
bail through a fresh petition.

Announced.
01. 03. 2010 CHIEF JUSTICE

Peshawar High Court

 2214
Jafar Shah --- Appellant/Petitioner (s)

Versus
Fazal Qadar --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 319/2010 Date of hearing 29.03.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Sections 302 / 324 / 34, PPC,
vide FIR No.635 dated 17.09.2009 in Police Station Hashtnagri,
Peshawar, seeks his release on bail on the ground that he has been
charged falsely on account of previous blood-feud between the
parties and the person enacting this tragedy was, indeed, Sherin, if
seen, in the light of the site plan, the venue and the time of
occurrence in the case FIR of 636 dated 17.09.2009.

2. The learned Deputy Attorney General appearing on

behalf of the State assisted by learned counsel for the complainant
argues that the whole story developed by the petitioner appears to
be unbelievable on the face of it as no father would charge an
innocent person for the murder of his son and let the actual culprit
go scot free.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the grounds urged by the learned counsel

for the petitioner can be appreciated without deeper appreciation of
evidence, which is not the domain of this Court while hearing a
petition for bail. The petitioner being, prima facie, connected with
a crime, attracting the prohibitory clause, doesn’t deserve the
concession of bail, atleast, at this stage.

Peshawar High Court

 2215
5. For the reasons discussed above, this petition being
without substance is dismissed. Since the investigation in the case
is complete, the prosecution is directed to forward the case within
fifteen days for trial to the Court of competent jurisdiction while
the latter is directed to conclude it within a period four months,
failing which, the petitioner may, if so advised, approach this
Court for bail through a fresh petition.

Announced.
29. 03. 2010 CHIEF JUSTICE

Peshawar High Court

 2216
Hussain Nawab --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 256/2010 Date of hearing 26.03.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him and 3 others under Sections 324 /
337-A(II) / 34, PPC, vide FIR No.258 dated 18.09.2009 in Police
Station Mattani, seeks his release on bail on the ground that the
charge against him appears to have been fabricated in order to
counter the case registered against the complainant party under
Section 302 / 34, PPC vide FIR No.257 dated 18.09.2009 and that
the circumstances of the case call for further inquiry.

2. The learned counsel appearing on behalf of State

assisted by the learned counsel for the complainant argues that the
petitioner being directly charged for having fired at the
complainant and causing injury to his mother by blunt means,
doesn’t deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Whether the petitioner is charged because of cross

case, wherein, his brother is reported to have been killed or he
actually committed the crime, he is charged with, are the questions
calling for further inquiry. I, therefore, allow this petition and
direct that the petitioner be released on bail on furnishing bail
bonds in the sum of Rs.2,00,000/- (Rupees two lac) with two
sureties, each in the like amount to the satisfaction of the learned
Trial Court, who is to ensure that the sureties are local, reliable
and men of means.
Announced.
26. 03. 2010 CHIEF JUSTICE

Peshawar High Court

 2217
Habib ur Rehman --- Appellant/Petitioner (s)

Versus
Gul Aslam Khan --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1312/2009 Date of hearing 26.03.2010

EJAZ AFZAL KHAN, CJ.- Petitioners who are charged

in a case registered against them under Sections 302/34, PPC, vide
FIR No.33 dated 19.03.2009 in Police Station Sabir Abad, Karak,
seek their release on bail on the ground that the complainant
himself turned out to be a culprit in this case and that
reinvestigation also affirmed the fact mentioned above.

2. The learned counsel appearing on behalf of the

State argues that though the table has been turned on the
complainant and the petitioners have been placed in Column No.2,
nonetheless, they cannot ask for their release on bail as of right.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record reveals that according to the latest

investigation, the complainant himself turned out to be an accused
in this case. It is in view of this essential aspect that the petitioners
have been placed in Column No.2. The father and sons of the
deceased, present in Court, also affirm the above stated position
and have no objection to the release of the petitioners on bail.

5. For the reasons discussed above, this petition is

allowed. The vehicle mentioned above is returned to the petitioner
on superdari on furnishing surety bonds in the sum of
Rs.8,00,000/- (Rupees eight lac), with two sureties, each in the like
amount to the satisfaction of the learned Trial Court, who is to
ensure that the sureties are local, reliable and men of means.
Announced.
26. 03. 2010 CHIEF JUSTICE

Peshawar High Court

 2218
Najeeb Ullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 20/2010 Date of hearing 09.04.2010

EJAZ AFZAL KHAN, CJ.- Petitioner through the instant

petition seeks transfer of the case pending in the Court of the
learned Additional Sessions Judge-I, Peshawar to some other Court
on the ground that the learned Presiding Officer while deciding an
application for bail has not only embarked on deeper appreciation
of evidence but also expressed his view on the merits of the case.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

3. Since, the observations of the learned Presiding

Officer are tentative in nature, they can’t influence the mind of the
Court while sitting in judgment on the main case. Quite apart from
this, when there is nothing on the record to show that the learned
Judge is biased or inimically disposed to the complainant, I don’t
think a case for transfer from one Court to another is made out.

4. For the reasons discussed above, this Cr.M.

(Transfer Application) being without substance is dismissed in
limine.

Announced.
09. 04. 2010 CHIEF JUSTICE

Peshawar High Court

 2219
Habibullah --- Appellant/Petitioner (s)

Versus
Sher Bahadur --- Respondent (s)

JUDGMENT
Cr. M (TA) No. 14/2010 Date of hearing 12.04.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the case pending in the Court of the
learned Civil Judge-II, Ghazi, Haripur to any other Court at Kohat,
Bannu or Peshawar on the grounds that the petitioner is to face life
threat at the hands of the respondents, if and when, he goes to
Ghazi to attend the Court.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

3. None of the grounds mentioned above is recognized

by law to justify the transfer of case from one Court to another or
from one district to another. If at all the respondents had out threat
to the petitioner or attempt to assault him, he can proceed against
them under the law.

4. For the reasons discussed above, this Cr.M.

(Transfer Application) is disposed of.

Announced.
12. 04. 2010 CHIEF JUSTICE

Peshawar High Court

 2220
Rehman Zaib --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (TA) No. 21/2010 Date of hearing 16.04.2010

EJAZ AFZAL KHAN, CJ.- This Cr.M. has been moved

for the transfer of case pending in the Court of Syed Asghar Ali
Shah, ASJ / Judge Special Court, Peshawar to any other Court on
the ground that the applicant is suffering from some kidney disease
and that due to long leave of the learned Presiding Officer of the
Court, his trial is likely to be delayed. The grounds urged for
transfer of the case are quite reasonable. This Transfer Application
is, thus, allowed and it is directed that the case pending in the
Court of Syed Asghar Ali Shah, ASJ be sent to Mr. Aurangzaib
Khattak, Additional Sessions Judge, Peshawar for disposal.

Announced.
16. 04. 2010 CHIEF JUSTICE

Peshawar High Court

 2221
Akbar Jan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 25/2010 Date of hearing 23.04.2010

EJAZ AFZAL KHAN, CJ.-Petitioners through the instant

petition seek transfer of the case pending in the Court of the
learned Judicial Magistrate-VI, Bannu to a Court in any other
district on the grounds that the petitioners would face life threat at
the hands of their opponents, if and when, they go to Bannu to
attend the Court.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioners.

3. None of the grounds mentioned above is recognized

by law to justify the transfer of case from one Court to another or
from one district to another, that too, when the petitioners can
move the SHO of the concerned Police Station in this behalf and
even move the Trial Court to dispense with their presence.

4. For the reasons discussed above, this Cr.M.

(Transfer Application) is disposed of.

Announced.
23. 04. 2010 CHIEF JUSTICE

Peshawar High Court

 2222
Ajmal Khan --- Appellant/Petitioner (s)

Versus
Secretary --- Respondent (s)

JUDGMENT
C.M (TA) No. 36/2010 Date of hearing 07.05.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seek transfer of the case pending in the bench of this Court
at D.I.Khan to the principal seat at Peshawar on the grounds that
the Cadet College, Razmak has been shifted to Peshawar and now
camp at Peshawar Islamia University and that this bench by
entertaining a similar petition No.306/2010 titled Abbas Khan vs.
Principal Cadet College, Razmak called for the comments of the
respondents.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

3. No ground, much less, legal has been urged to

justify the transfer of the case from one bench to another. The writ
petition referred to by the learned counsel for the petitioner too
will have to go to the said bench. This C.M. being without
substance is dismissed.

Announced.
07. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2223
Yousaf Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 26/2010 Date of hearing 10.05.2010

EJAZ AFZAL KHAN, CJ.- This Cr.M. has been moved

for the transfer of case pending in the Court of Syed Asghar Ali
Shah, ASJ-XI, Peshawar to any other Court on the ground that the
learned Presiding Officer being on long leave is not available and
that the application moved under Section 265-K. Cr.PC is required
to be heard and decided earlier. The learned Advocate General and
the complainant present in the Court have no objection to the
transfer of the case from the aforesaid Court to any other. In this
view of the matter, this Transfer Application is allowed and it is
directed that the case pending in the Court of Syed Asghar Ali
Shah, ASJ-XI, be sent to the learned Sessions Judge, Peshawar for
disposal.

Announced.
10. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2224
Muhammad Riaz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 36/2010 Date of hearing 10.05.2010

EJAZ AFZAL KHAN, CJ.-Petitioners through the instant

petition seek transfer of criminal trial from the Court of Civil
Judge, Batkhela, district Malakand to any other Court at Chakdara
or at Timergara on the grounds that they have serious apprehension
of not receiving a fair and impartial trial from the former due to the
influence of the District Public Prosecutor in Malakand at
Batkhela.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

3. The ground urged is not recognized by law to

justify the transfer of case from one Court to another or from one
district to another. This C.M. is, thus, dismissed in limine.

Announced.
10. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2225
Said Ahmad --- Appellant/Petitioner (s)

Versus
Abdullah --- Respondent (s)

JUDGMENT
Cr.M. (QP) No. 114/2010 Date of hearing 17.05.2010

EJAZ AFZAL KHAN, CJ.- Petitioner through the instant

petition as questioned the order date 29.04.2010 of the learned
Additional Sessions Judge-I, Bunir, whereby, he allowed the
revision petition of the respondent and dispensed with his personal
appearance till further orders.

2. The learned counsel appearing on behalf of the

petitioner contended that where Section 242 of the Cr.PC requires
the personal appearance of the accused at the time of framing of
the charge, appearance through counsel is no appearance and that
the learned Additional Sessions Judge by allowing the revision
petition of the respondent has acted against the salutary provision
of the Cr.PC, and the case law laid down in this behalf.

3. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

4. A look at the relevant provisions of the Cr.PC

reveals that the Court can dispense with the personal appearance of
the accused for the reasons to be recorded. No hard and fast rules
can be laid down in this behalf. No rigid compliance with the
provision of that such provision can be stressed, when these were
primarily enacted for the benefit of the accused. The reasons
recorded by the learned Revisional Court being in accordance with
the law, merit no interference.

Peshawar High Court

 2226
5. For the reasons discussed above, this petition being
without substance is dismissed in limine.

Announced.
17. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2227
Humayun Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 355/2010 Date of hearing 21.05.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Sections 3 / 4 Prohibition
(Enforcement of Had) Order, 1979 / Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.100 dated
25.01.2010 in Police Station Jungle Khel, Kohat sought his release
on bail on the ground that he didn’t have conscious knowledge of
the incriminating substance recovered from the secret cavities of
the vehicle, as he drove it only on the day of occurrence on the
bidding of his master and that his previous unblemished record
point to his innocence rather than guilt.

2. The learned counsel appearing on behalf of the

State opposed the grant of bail to the petitioner by submitting that
the concession of bail cannot be granted on the basis of
hypothetical and presumptive arguments and that the petitioner
being, prima facie, connected with a crime, attracting the
prohibitory clause, doesn’t deserve the concession of bail at this
stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the contentions raised by the learned

counsel for the petitioner can be appreciated without deeper
appreciation of evidence, which is not the domain of this Court
while hearing a petition for bail. The petitioner being, prima facie,

Peshawar High Court

 2228
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail, atleast, at this stage.

5. For the reasons discussed above, this petition being

without substance is dismissed. However, the prosecution is
directed to forward the case of the petitioner to the learned Trial
Court within a period of one month while the latter is directed to
conclude the trial of the petitioner within a period of four months,
failing which, the petitioner may, if so advised, approach this
Court for bail through a fresh petition. The office is directed to
send back the record as early as possible but not later than three
days.

Announced.
21. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2229
Humayun --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 605/2010 Date of hearing 21.05.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9 of the Control of
Narcotics Substances Act, 1997, vide FIR No.141 dated
31.03.2010 in Police Station Toru, Mardan, sought his release on
bail on the grounds that he is not likely to be awarded the
maximum sentence provided by the statute for possessing 1250
grams of “Charas” and that he spent almost two months in jail, yet,
the commencement of his trial let alone its conclusion is not in
sight.

2. The learned counsel appearing on behalf of the

State opposed the grant of bail to the petitioner by submitting that
the petitioner is habitual, as he has been charged in as many as nine
cases of similar nature and that he being, prima facie, connected
with a crime, attracting the prohibitory clause, doesn’t deserve the
concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. Since, the quantum of sentence has to be in

proportion to the quantum of substance recovered, I doubt the
petitioner can be awarded a sentence attracting the prohibitory
clause. The fact that the petitioner spent almost two months in jail
would further tilt the scales of justice in favour of bail rather than
jail, that too, when the commencement of his trial let alone its
conclusion is not in sight, notwithstanding, his involvement in
many other similar cases.

Peshawar High Court

 2230

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the Trial Court, who is to ensure that the sureties are local, reliable
and men of means.

Announced.
21. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2231
Muhammad Ashfaq --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 631/2010 Date of hearing 28.05.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Sections 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.166 dated
23.04.2010 in Police Station Sarband, Peshawar sought his release
on bail on the ground that he can’t be saddled with conscious
possession of the incriminating substance, recovered from the
secret cavities of the car and that the report of the FSL, despite the
lapse of one month, is not available on the record.

2. As against that the learned counsel appearing on

behalf of the State opposed the grant of bail to the petitioner by
submitting that the concession of bail cannot be granted on the
basis of presumptive argument; that the case has since been sent to
the Court of competent jurisdiction for trial, which is going to be
concluded within few moths and that the petitioner being, prima
facie, connected with a crime, attracting the prohibitory clause,
doesn’t deserve the concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the contentions raised by the learned

counsel for the petitioner can be appreciated without deeper
appreciation of evidence, which is not the domain of this Court
while hearing a petition for bail. The petitioner being, prima facie,
connected with a crime, attracting prohibitory clause, doesn’t
deserve the concession of bail, atleast, at this stage.

Peshawar High Court

 2232
5. For the reasons discussed above, this petition being
without substance is dismissed. However, the learned Trial Court
is directed to conclude the trial of the petitioner within a period of
three months, failing which, the petitioner may, if so advised,
approach this Court for bail through a fresh petition. The office is
directed to send back the record as early as possible but not later
than three days.

Announced.
28. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2233
Laal Muhammad --- Appellant/Petitioner (s)

Versus
Muhammad Sagheer --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 555/2010 Date of hearing 28.05.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him and others under Section 337-A(V),
PPC, vide FIR No.256 dated 31.03.2010 in Police Station Mathra,
Peshawar sought his release on bail mainly on the ground that the
injuries caused on the person of the complainant being simple in
nature, can’t attract the application of prohibitory clause and that
grant of bail in such like cases is a rule and refusal is an exception.

2. The learned counsel appearing on behalf of State

assisted by the learned counsel for the complainant argued that the
petitioner doesn’t deserve the concession of bail because of his
brutal act, notwithstanding, the offence committed by him may not
attract prohibitory clause.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Be all that as it may, where the injuries caused on

the person of the complainant, can’t justify the award of a sentence
attracting the prohibitory clause, I wouldn’t like to decline the
concession of bail. Needless to say that the grant of bail in such
like cases is a rule and refusal is an exception.

5. For the reasons discussed above, this petition is

allowed and it is directed that the petitioner be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the

Peshawar High Court

 2234
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
28. 05. 2010 CHIEF JUSTICE

Peshawar High Court

 2235
Said Wazir --- Appellant/Petitioner (s)

Versus
Jamroz Khan --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 469/2010 Date of hearing 14.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him & another under Sections 355, 384,
385, 386, 387, 389, 406, 500, 501, 506, 508 PPC / Sections 13 / 14,
Ghunda Ordinance, vide FIR No.168 dated 08.03.2010 in Police
Station East Cantt:, Peshawar sought his release on bail mainly on
the ground that the complainant has patched up the matter with
him and has no objection on his release on bail.

2. The complainant present in Court alongwith his

counsel stated that he has no objection to the release of the
petitioner on bail, if he returns all the material used by him to
torture and blackmail him. The petitioner, present in Court,
returned the alleged material to the complainant.

3. The learned Additional Advocate General appearing

on behalf of the State, in view of the aforesaid position, has no
objection to the release of the petitioner on bail.

4. In view of the above stated position, this petition is

allowed and it is directed that the petitioner be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means. In case, the petitioner misuses the
concession of bail, the complainant would be at liberty to move the
Court of competent jurisdiction for its recall.

Announced.
14. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2236
Khiyal Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. (BA) No. 576/2009 Date of hearing 18.06.2010

EJAZ AFZAL KHAN, CJ.-Petitioner who is charged in a

case registered against him and others under Section 365, PPC /
Section 17(3) of the Offences Against Property (Enforcement of
Hudood) Ordinance, 1979, vide FIR No.320 dated 26.07.2009 in
Police Station Paharipura, Peshawar, sought his release on bail on
the ground that he hasn’t been charged in the FIR nor description
of his physique and features has been given therein; that the charge
belatedly made after his arrest, appears to be a result of concoction
and fabrication and that his involvement in the crime calls for
further inquiry, especially, when no identification parade has been
held so far.

2. As against that the learned Deputy Advocate

General assisted by the learned counsel for the complainant argued
that, though, the petitioner was not charged in the FIR but this
doesn’t mean that he has no hand in the commission of the crime
and that he being, prima facie, connected with the crime attracting
the prohibitory clause, doesn’t deserve the concession of bail,
atleast, at this stage.

3. I have gone through the record carefully and

considered the submission made by the learned counsel for the
parties.

4. Where the petitioner hasn’t been charged in the FIR

nor description of his physique and features has been mentioned
therein, his complicity in the crime calls for further inquiry, that
too, when he seems to have been named after his arrest. Failure on

Peshawar High Court

 2237
the part of the investigating agency to hold identification parade
would constitute another reason in this behalf.

5. For the reasons discussed above, this petition is

allowed and it is directed that the petitioner be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2238
The State --- Appellant/Petitioner (s)

Versus
Saifullah --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 40/2010 Date of hearing 18.06.2010

EJAZ AFZAL KHAN, CJ.-This C.M. has been moved

for the transfer of the case from the Court of the learned Sessions
Judge, Shangla to any other Court on the ground that he being
friendly with one of the parties, can’t be excepted to decide the
case in a fair, impartial and nonpartisan way.

2. The learned Deputy Advocate General assisted by

the learned counsel for the respondent have no objection to the
transfer of the case to some other Judge, that too, when the learned
Sessions Judge Shangla out of abundant caution declined to hear
this case. In this view of the matter, this Cr.M. is allowed and it is
directed that this case be tried and heard by Mr. Muhammad Asif-
II, the learned Additional Sessions Judge, Bunir at Daggar.

Announced.
18. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2239
Samiullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 677/2010 Date of hearing 18.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.328 dated
12.05.2010 in Police Station Badhber, Peshawar sought his release
on bail on the ground that for possessing two kilograms of
“Charas”, he is not likely to be awarded the maximum sentence
provided by the statute.

2. The learned Deputy Advocate General appearing on

behalf of the State argued that since the petitioner is a notorious
narcotic dealer, he doesn’t deserve the concession of bail, even it is
presumed for a while that he is not likely to be awarded maximum
sentences provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.
4. Since the magnitude of sentence has to be
commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while seized of an
application for bail is not supposed to keep in view the maximum
sentence provided by the statute but the one likely to be entailed by
the facts and circumstance of the case.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on

Peshawar High Court

 2240
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2241
Gul Agha --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 695/2010 Date of hearing 18.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.493 dated
13.05.2010 in Police Station Bahana Mari, Peshawar sought his
release on bail on the ground that for possessing three kilograms of
“Charas”, he is not likely to be awarded the maximum sentence
provided by the statute.

2. The learned Deputy Advocate General appearing on

behalf of the State opposed the grant of bail to the petitioner by
submitting that the concession of bail cannot be granted on the
basis of hypothetical and presumptive arguments and that the
petitioner being, prima facie, connected with a crime, attracting the
prohibitory clause, doesn’t deserve the concession of bail at this
stage.
3. I have gone through the record carefully and
considered the submissions made by the learned counsel for the
parties.
4. Since the magnitude of sentence has to be
commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2242
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2243
Akbar Ali --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr. Misc (BA) No. 747/2010 Date of hearing 18.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.475 dated
24.05.2010 in Police Station Gulbahar, Peshawar sought his
release on bail on the ground that for possessing three kilograms of
“Charas”, he is not likely to be awarded the maximum sentence
provided by the statute.

2. The learned Deputy Advocate General appearing on

behalf of the State opposed the grant of bail to the petitioner by
submitting that the concession of bail cannot be granted on the
basis of hypothetical and presumptive arguments and that the
petitioner being, prima facie, connected with a crime, attracting the
prohibitory clause, doesn’t deserve the concession of bail at this
stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2244
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2245
Gul Khaisat --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 614/2010 Date of hearing 21.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Sections 9(C) of the Control of
Narcotics Substances Act, 1997 read with Articles 3 / 4 of the
Prohibition Order, vide FIR No.207 dated 21.04.2010 in Police
Station Wari, Dir Bala, sought his release on bail on the ground
that the story narrated in the FIR appears to be unbelievable on the
face of it as no person, would keep water container in his lap once
he has a space on the seat or underneath that to keep the same.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the contentions raised by the learned

counsel for the petitioner can be appreciated without deeper
appreciation of evidence, which is not the domain of this Court
while hearing a petition for bail. The petitioner being, prima facie,
connected with a crime, attracting prohibitory clause, doesn’t
deserve the concession of bail, atleast, at this stage.

5. For the reasons discussed above, this petition being

without substance is dismissed. However, the prosecution is

Peshawar High Court

 2246
directed to forward the case of the petitioner to the learned Trial
Court within a fortnight while the latter is directed to conclude the
trial of the petitioner within a period of three months, failing
which, the petitioner may, if so advised, approach this Court for
bail through a fresh petition. The office is directed to send back the
record as early as possible but not later than three days.

Announced.
21. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2247
Rehman Zeb --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 661/2010 Date of hearing 21.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.775 dated
13.11.2009 in Police Station Gul Bahar, Peshawar, sought his
release on bail, firstly on the ground that, despite direction of this
Court, trial has not been concluded within the stipulated time;
secondly on the ground that he cannot be awarded the maximum
sentence provided by the statute for possessing three kilograms of
“Charas” and 2500 grams of “Opium” and thirdly on the ground
that he has been in jail for more than seven months, yet his trial
awaits conclusion.

2. The learned counsel appearing on behalf of the

State argued that the case of the petitioner couldn’t be concluded
as the learned Presiding Officer of the Court was away in
connection with ‘Sharia’ course.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. When the trial of the petitioner, despite direction of

the Court, has not been concluded within the stipulated time, I
don’t think there remains any justification to keep him in jail. The
fact that he has been in jail for more than seven months and yet his
trial awaits conclusion would also tilt in favour of bail rather than
jail.
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
Peshawar High Court
 2248
with two sureties, each in the like amount to the satisfaction of the
Trial Court, who is to ensure that the sureties are local, reliable and
men of means.

Announced.
21. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2249
Rafiq Zada --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 707/2010 Date of hearing 25.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioners who are charged

in a case registered against them and another under Section 9(C) of
the Control of Narcotics Substances Act, 1997, vide FIR No.135
dated 09.05.2010 in Police Station Gandigaar, Dir Bala, sought
their release on bail on the ground that when the recovery was
effected from the rear of the car, they occupying the front seat,
can’t be held responsible, that too, when it was owned by the
person, sitting in the rear.

2. The learned counsel appearing on behalf of the

State opposed the grant of bail to the petitioners by submitting that
a huge quantity of narcotics was recovered from them and that they
being, prima facie, connected with a crime, attracting the
prohibitory clause, don’t deserve the concession of bail at this
stage.
3. I have gone through the record carefully and
considered the submissions made by the learned counsel for the
parties.

4. Where the incriminating substance has been

recovered from the rear of the car, the question, whether the
petitioners can be linked therewith, is essentially one of further
inquiry.

5. For the reasons discussed above, this petition is

allowed and the petitioners are directed to be released on bail,
provided each of them furnishes bail bonds in the sum of
Rs.3,00,000/- (Rupees three lac) with two sureties, each in the like

Peshawar High Court

 2250
amount to the satisfaction of the learned Trial Court, who is to
ensure that the sureties are local, reliable and men of means.

Announced.
25. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2251
Faheem Khan --- Appellant/Petitioner (s)

Versus
Mehfooz ur Rehman --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 761/2010 Date of hearing 25.06.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him and others under Sections 324 / 34,
PPC, vide FIR No.475 dated 10.07.2008 in Police Station
Chamkani, Peshawar sought his release on bail mainly on the
ground that the co-accused, similarly placed, have since been
acquitted and that the case also calls for further inquiry, when the
occurrence took place nocturnal hours.

2. The learned counsel appearing on behalf of State

assisted by the learned counsel for the complainant argued that
fugitive from law forfeits many of his rights, granted by
substantive and procedural law, therefore, the petitioner doesn’t
deserve the concession of bail, notwithstanding the merits of case.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Whether the case of the petitioner can be

distinguished from that of the co-accused, who have since been
acquitted and whether in the circumstances of the case, his
identification as an assailant could be possible are the questions
requiring further inquiry. Yes, the petitioner has been fugitive from
law and, as such, he may have forfeited many of his rights granted
by the substantive and procedural law but where the Court comes
to the conclusion that the case is one of further inquiry,
abscondance can’t be taken to unworkable extremes.

Peshawar High Court

 2252
5. For the reasons discussed above, this petition is
allowed and it is directed that the petitioner be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means. In case, the petitioner misuses the
concession of bail, the complainant would be at liberty to move
this Court for its recall.

Announced.
25. 06. 2010 CHIEF JUSTICE

Peshawar High Court

 2253
Muhammad Zahoor Mustafa --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 804/2010 Date of hearing 02.07.2010

EJAZ AFZAL KHAN, CJ.- By this single judgment, I

propose to decide Cr.Miscs (Bail Applications) No.804 & 826 of
2010, wherein, the petitioners, who are charged in a case registered
against them under Section 489-B of the PPC, vide FIR No.388
dated 28.05.2010 in Police Station Badhber, Peshawar sought their
release on bail mainly on the ground that the question whether the
case is one of Section 489-B or 489-C of the PPC is one of further
inquiry, that too, when so far nothing has been brought on the
record to show that they knew or had reason to believe that the
currency notes were fake or counterfeit.

2. As against that, the learned counsel appearing on

behalf of the State argued that a huge number of currency notes
recovered from the possession of the petitioners shows that it was
meant for trafficking and, as such, they being, prima facie,
connected with a crime, attracting the prohibitory clause, don’t
deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Whether in the given circumstances, the case of the

petitioners would be covered by Section 489-B or 489-C of the
PPC is a question requiring further inquiry, that too, when so far
nothing has been brought on the record to show that they knew or
had reason to believe that the currency notes were fake or
counterfeit.

Peshawar High Court

 2254
5. For the reasons discussed above, these petition are
allowed and the petitioners are directed to be released on bail,
provided, each of them, furnishes bail bonds in the sum of
Rs.1,00,000/- (Rupees one lac) with two sureties, each in the like
amount to the satisfaction of the learned Trial Court, who is to
ensure that the sureties are local, reliable and men of means.

Announced.
02. 07. 2010 CHIEF JUSTICE

Peshawar High Court

 2255
Naseer --- Appellant/Petitioner (s)

Versus
Dr. Iftikhar Khan --- Respondent (s)

JUDGMENT
Cr.Misc. (BA) No. 835/2010 Date of hearing 05.07.2010

EJAZ AFZAL KHAN, CJ.-By this single judgment, I

propose to decide Cr.Miscs (BAs) No.835 & 836 of 2010, wherein,
petitioners who are charged in a case registered against them &
another under Sections 364-A / 365-A, PPC read with Section 7 of
the Anti-Terrorism Act, 1997, vide FIR No.348 dated 05.07.2009
in Police Station Zaida, District Swabi, sought their release on bail
mainly on the ground that the matter has been patched up between
the parties and the confessional statement of one of the petitioners
being exculpatory cannot reasonably connect them with the crime.

2. As against that, the learned Additional Advocate

General assisted by the learned counsel for the complainant
opposed the grant of bail by submitting that where one of the
petitioners made confessional statement, wherein, he incriminated
himself as well as others in the alike manner, it being inculpatory
is an evidence against all of them and that they being, prima facie,
connected with a crime, attracting the prohibitory clause, don’t
deserve the concession of bail, notwithstanding, the complainant
has no objection to their release on bail.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Where one of the petitioners in his confessional

statement stated that he returned the abductee without any demand
and without being swayed by a feeling of greed, the question
whether it is a case of Section 365 or 365-A or 364-A, PPC is

Peshawar High Court

 2256
calling for further inquiry. Apart from this, when the matter has
been patched up between the parties and the complainant has no
objection to the release of the petitioner on bail, I don’t think any
useful purpose is likely to be served by detaining them in jail. The
fact that the petitioners have been in jail for almost one year would
further tilt the scales of justice in favour of bail rather than jail, that
too, when the commencement of their trial let alone its conclusion
is not in sight.

5. For the reasons discussed above, these petitions are

allowed and it is directed that the petitioners be released on bail,
provided each of them furnishes bail bonds in the sum of
Rs.5,00,000/- (Rupees five lac) with two sureties, each in the like
amount to the satisfaction of the learned Trial Court, who is to
ensure that the sureties are local, reliable and men of means.

Announced.
05. 07. 2010 CHIEF JUSTICE

Peshawar High Court

 2257
Shah Khalid --- Appellant/Petitioner (s)

Versus
Shakeel --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 852/2010 Date of hearing 19.07.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him and another under Sections 324 / 34,
PPC, vide FIR No.331 dated 08.06.2010 in Police Station Nasir
Bagh, Peshawar sought his release on bail on the ground that the
injuries on the person of the victim are not on the vital part of her
body and that in the absence of repetition of fire, the petitioner
cannot be saddled with the intention to kill.

2. As against that the learned Additional Advocate

General appearing on behalf of the State assisted by learned
counsel for the complainant argued that the petitioner being
directly charged for having fired at the complainant; that choice of
weapon and its use in the commission of crime prove his intention
and that he being, prima facie, linked with a crime attracting the
prohibitory clause doesn’t deserve the concession of bail.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the contentions urged by the learned

counsel for the petitioner can be appreciated without deeper
appreciation of evidence, which is not the domain of this Court
while hearing a petition for bail. The petitioner being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail, atleast, at this stage.

Peshawar High Court

 2258
5. For the reasons discussed above, this petition being
without substance is dismissed. Since the investigation in the case
is complete, the prosecution is directed to forward the case within
seven days for trial to the Court of competent jurisdiction while the
latter is directed to conclude it within a period of 2 months, failing
which, the petitioner may, if so advised, approach this Court for
bail through a fresh petition.

Announced.
19. 07.2010 CHIEF JUSTICE

Peshawar High Court

 2259
Ismail --- Appellant/Petitioner (s)

Versus
Asghar Khan --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 68/2010 Date of hearing 20.09.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the case pending in the Court of the
learned Additional Sessions Judge, Malakand at Dargai to any
other Court mainly on the ground that the learned Judge has
friendly relations with the respondents.

2. As against that the learned counsel appearing on

behalf of the respondents contended that these are wild allegations
without having a spick of truth therein, therefore, the C.M. being
misconceived be dismissed.

3. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the parties.

4. No ground, much less, convincing has been pointed

out to justify the transfer of the case from the Court of learned
Additional Sessions Judge to another. This Cr.M (Transfer
Application), thus, being without substance is dismissed in limine.

Announced.
20. 09. 2010 CHIEF JUSTICE

Peshawar High Court

 2260
Siraj --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 67/2010 Date of hearing 27.09.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the cases pending in the Court of the
learned Sessions Judge, Charsadda to any other Court or another
district mainly on the ground that he being handicapped is to face
life threat at the hands of the respondent, if and when, he goes to
Charsadda to attend the Court.

2. As against that the respondent contended that these

are wild allegations without having a speck of truth therein,
therefore, the Cr.M. being misconceived be dismissed.

3. I have gone through the available record carefully

and considered the submissions made by both the parties.

4. No ground, much less, convincing has been pointed

out to justify the transfer of the case from the Court of learned
Sessions Judge to another. This Cr.M (Transfer Application), thus,
being without substance is dismissed.

Announced.
27. 09. 2010 CHIEF JUSTICE

Peshawar High Court

 2261
Masroor Ahmad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 73/2010 Date of hearing 15.10.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the cases pending in the Court of the
learned Additional Sessions Judge-IV, Mardan, to any other Court
mainly on the ground that the learned Presiding Officer has already
acquitted the co-accused.

2. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

2. No ground, much less, convincing has been brought

on the record to justify the transfer of the case from the Court of
learned Additional Sessions Judge-IV, Mardan to any other. This
Cr.M (Transfer Application), thus, being without substance is
dismissed.

Announced.
15. 10. 2010 CHIEF JUSTICE

Peshawar High Court

 2262
Muhammad Din --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 72/2010 Date of hearing 25.10.2010

EJAZ AFZAL KHAN, CJ.-Applicant through the instant

petition has asked for the transfer of criminal case registered at the
instant of Jaffar Ali vide FIR No.688 dated 28.12.2009 in Police
Station Mathra, pending trial in the Court of learned Additional
Sessions Judge-V, Peshawar to the Court of learned Additional
Sessions Judge-VI, Peshawar, where a case registered at his
instance against almost the same accused vide FIR No.550 dated
28.12.2009 in Police Station Machni Gate, Peshawar is pending
trial.

2. The learned counsel appearing on behalf of the

applicant contended that though the complainants in both the cases
are different but the persons accused therein are almost same,
therefore, it would be proper and in the interest of justice that the
same be tried together, especially, when the occurrences reported
in both the cases took place at the same date in close proximity of
time.

3. The learned Advocate General appearing on behalf

of the State didn’t seriously oppose the contention of the learned
counsel for the applicant.

4. As against that the learned counsel appearing on

behalf of the accused-respondent contended that when the
occurrences, venues and police stations thereof are different and
there is no nexus of one case with the other, the transfer of case
would be totally un-called for.

Peshawar High Court

 2263
5. I have gone through the record carefully and
considered the submissions made by the learned counsel for the
parties.

6. Whether the occurrences taking place on the same

day in close proximity of time can have some nexus with each
other and can benefit either the accused or the complainants, if
tried together, cannot be commented at this stage. However, in the
circumstance of the case, their joint trial to have complete view of
the occurrences for better understanding of the cases may,
nevertheless, be desirable. Therefore, the contention of the learned
counsel for the applicant and that of the learned Advocate General
appears to be reasonable.

7. For the reasons discussed above, I allow this Cr.M.

(Transfer Application) and direct that the case FIR No.688 dated
28.12.2009, pending trial in the Court of learned Additional
Sessions Judge-V, Peshawar be sent to the Court of Ms. Farah
Jamshed, the learned Additional Sessions Judge-VI, Peshawar,
where case FIR No.550 dated 28.12.2009, Peshawar is pending
trial.

Announced.
25. 10. 2010 CHIEF JUSTICE

Peshawar High Court

 2264
Syed Jamal ud Din --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 74/2010 Date of hearing 25.10.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the case pending in the Court of the
learned Additional Session Judge, Swabi to any other Court of
competent jurisdiction outside Swabi district on the ground that he
is to face life threat at the hands of the respondent, if and when, he
goes to Swabi to attend the Court.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

3. The ground mentioned in the petitioner, to my

mind, is not a ground recognized by law to justify the transfer of
case from one Court to another or from one district to another. If at
all the respondent holds out threat to the petitioner or attempt to
assault him, he can have recourse to the local police under the
provision of the Cr.P.C, dealing with public peace and security. I
have been told that the petitioner’s application for exemption to
appear before the Court is still pending and has not so far been
decided. In this view of the matter, I direct the learned Additional
Sessions Judge to decide the application of the petitioner as early
as possible. This Cr.M. (Transfer Application) is disposed of
accordingly.

Announced.
25. 10. 2010 CHIEF JUSTICE

Peshawar High Court

 2265
Nisar Ahmad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 77/2010 Date of hearing 05.11.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the case pending in the Court of the
learned Civil Judge-I, Timergara, Dir Lower to some other Court
on the ground that the persons, who happened to be accused in this
case, are unfortunately employed in the same Court as
Superintendent and Muharir, therefore, it shall not be appropriate
that the case be heard by the learned Presiding Officer of the said
Court.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

3. The ground, I am afraid, is not the one recognized

by law to justify the transfer of case from one Court to another or
from one district to another. If the learned Presiding Officer can be
influenced in his decision by the Superintendent or Muharrir, he
has no justification to remain in the judiciary. Since, I am sure that
the petitioner would receive a fair trial, notwithstanding, the
accused are employees in the said Court, I don’t feel persuaded to
accede to his request. Even otherwise, this Court rarely entertains
an application for transfer of cases, unless, any apprehension of not
receiving fair trial is real and reasonable.

4. For the reasons discussed above, this Cr.M.

(Transfer Application) being without substance is dismissed in
limine. However, it is expected that the learned Presiding Officer
would decide the case fairly, justly and in accordance with law

Peshawar High Court

 2266
without being influenced by the fact that the applicant moved an
application for transfer of the case.

Announced.
05. 11. 2010 CHIEF JUSTICE

Peshawar High Court

 2267
Sanoobar --- Appellant/Petitioner (s)

Versus
Rehman Dil --- Respondent (s)

JUDGMENT
C.M (TA) No. 49/2010 Date of hearing 12.11.2010

EJAZ AFZAL KHAN, CJ.-Petitioners through the instant

petition seek transfer of the case pending in the Court of the
learned Civil Judge-, Khwaza Khela, Swat to any other Court on
the ground that the learned Presiding Officer has friendly relations
with the plaintiffs-respondents.

2. The learned Presiding Officer, in his para-wise

comments, has categorically denied the allegations levelled by the
petitioners.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for
petitioners.

4. No ground, much less, convincing has been pointed

out to justify the transfer of the case from the Court of learned
Civil Judge-, Khwaza Khela, Swat to another. This C.M (Transfer
Application), thus, being without substance is dismissed in limine.
However, it is expected that the learned Judge would decide the
case fairly, justly and in accordance with law without being
influenced by the fact that the applicant moved an application for
transfer of the case.

Announced.
12. 11. 2010 CHIEF JUSTICE

Peshawar High Court

 2268
Mst. Feroza --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1527/2010 Date of hearing 12.11.2010

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against her and another under Section 9(C) of the
Control of Narcotics Substances Act, 1997, vide FIR No.42 dated
29.06.2010 in Police Station ANF, Peshawar, sought her release on
bail mainly on the ground that, despite direction of this Court, trial
has not been concluded within the stipulated time.

2. The learned counsel appearing on behalf of the

State argued that the case of the petitioner couldn’t be concluded
as the investigating officer was on training in connection with
some special course.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. When the trial of the petitioner, despite direction of

the Court, has not been concluded within the stipulated time, I
don’t think there remains any justification to keep her in jail. The
fact that she has been in jail for more than four months and yet her
trial awaits conclusion would also tilt in favour of bail rather than
jail.
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.
Announced.
12. 11. 2010 CHIEF JUSTICE

Peshawar High Court

 2269
Abdul Kabir --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1525/2010 Date of hearing 06.12.2010

EJAZ AFZAL KHAN, CJ.-Petitioner who is charged in a

case registered against him and others under Sections 324 / 353 /
341 / 342 / 382 / 148 / 149, PPC read with Section 7 of the Anti-
Terrorism Act, 1997, vide FIR No.92 dated 30.04.2009 in Police
Station Mingora, District Swat sought his release on bail mainly on
the ground that his case is not distinguishable from those, who
have been released on bail on 06.05.2010 by this Court.

2. The learned Additional Advocate General appearing

on behalf of State didn’t dispute the aforesaid position. In this view
of the matter, this petition is allowed and it is directed that the
petitioner be released on bail on furnishing bail bonds in the sum
of Rs.5,00,000/- (Rupees five lac) with two sureties, each in the
like amount to the satisfaction of the learned Trial Court, who is to
ensure that the sureties are local, reliable and men of means.

Announced.
06. 12. 2010 CHIEF JUSTICE

Peshawar High Court

 2270
Muhammad Saeed --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 81/2010 Date of hearing 10.12.2010

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the case pending in the Court of the
learned Additional Sessions Judge-IV, Nowshera to any other
Court of competent jurisdiction on the ground that on 28.06.2010,
final arguments were heard but, after the lapse of sufficient time,
the learned Presiding Officer, failed to deliver the judgment,
therefore, he has no confidence over the said Presiding Officer.

2. I have gone through the record carefully and

considered the submissions made by the learned counsel for
petitioner.

3. No ground, much less, convincing has been pointed

out to justify the transfer of the case from the Court of learned
Additional Sessions Judge-IV, Nowshera to another. This Cr.M
(Transfer Application), thus, being without substance is dismissed
in limine. However, it is desired that this case be disposed of as
early as possible.

Announced.
10. 12. 2010 CHIEF JUSTICE

Peshawar High Court

 2271
Sattar Shah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1835//2010 Date of hearing 10.01.2011

EJAZ AFZAL KHAN, CJ.- Petitioners who are charged

in a case registered against them under Sections 9(C) of the
Control of Narcotics Substances Act, 1997 vide FIR No.883 dated
26.10.2010 in Police Station Badhber, Peshawar, sought their
release on bail on the ground that mere presence near the spot,
wherefrom, huge quantity of Charas has been recovered can’t link
them with the crime and that the circumstances of the case call for
further inquiry.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioners by submitting that they being residents of another
village couldn’t satisfactorily account for their presence on the
spot, wherefrom, eleven bags containing 250 kilograms of Charas
have been recovered and that they being, prima facie, connected
with a crime, attracting the prohibitory clause, don’t deserve the
concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the contentions raised by the learned

counsel for the petitioner can be appreciated without deeper
appreciation of evidence, which is not the domain of this Court
while hearing a petition for bail. The petitioners being, prima facie,
connected with a crime, attracting prohibitory clause, don’t deserve
the concession of bail, atleast, at this stage.

Peshawar High Court

 2272
5. For the reasons discussed above, this petition being
without substance is dismissed. Since investigation in the case is
complete and the prosecution, according to the learned Additional
Advocate General, has already submitted it to the learned Trial
Court, the latter is directed to conclude the trial of the petitioners
within a period of four months. The office is directed to send back
the record as early as possible but not later than three days.

Announced.
10. 01. 2011 CHIEF JUSTICE

Peshawar High Court

 2273
Javed Akbar --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1849/2010 Date of hearing 10.01.2011

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.771 dated
12.11.2010 in Police Station Pishtakhara, Peshawar sought his
release on bail on the ground that for possessing 1100 grams of
“Charas”, he is not likely to be awarded the maximum sentence
provided by the statute.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2274

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.1,00,000/- (Rupees one lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
10. 01. 2011 CHIEF JUSTICE

Peshawar High Court

 2275
Sajjad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1862/2010 Date of hearing 10.01.2011

EJAZ AFZAL KHAN, CJ.-Petitioner who is charged in a

case registered against him under Sections 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.592 dated
05.09.2010 in Police Station Pishtakhara, Peshawar, sought his
release on bail on the ground that the incriminating substance was
subsequently planted against him; that delay in sending the parcel
to the Forensic Science Laboratory shows that the occurrence has
not taken place in the manner, described by the prosecution and
that his complicity in the crime, in the circumstances of the case,
calls for further inquiry.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that 175 kilograms of Charas has
been recovered from the vehicle driven by him, therefore, he
being, prima facie, linked with a crime, attracting the prohibitory
clause, doesn’t deserve the concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. None of the contentions raised by the learned

counsel for the petitioner can be appreciated without deeper
appreciation of evidence, which is not the domain of this Court
while hearing a petition for bail. The petitioner being, prima facie,
connected with a crime, attracting prohibitory clause, doesn’t
deserve the concession of bail, atleast, at this stage.

Peshawar High Court

 2276
5. For the reasons discussed above, this petition being
without substance is dismissed. However, the prosecution is
directed to forward the case of the petitioner to the learned Trial
Court within a fortnight while the latter is directed to conclude the
trial of the petitioner within a period of six months. The office is
directed to send back the record as early as possible but not later
than three days.

Announced.
10. 01. 2011 CHIEF JUSTICE

Peshawar High Court

 2277
Sohail --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1892/2010 Date of hearing 17.01.2011

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997 / 24 P.O / 13 of the Arms
Ordinance, 1965, vide FIR No.740 dated 10.11.2010 in Police
Station Hoti, Mardan sought his release on bail on the ground that
for possessing three kilograms of “Charas”, he is not likely to be
awarded the maximum sentence provided by the statute.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that recovery of incriminating
substance alongwith a pistol of .30 bore, prima facie, connect him
with a crime, attracting the prohibitory clause.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing three kilograms of Charas.
Needless to say that the Court while being seized of an application
for bail is not supposed to keep in view the maximum sentence
provided by the statute but the one which is likely to be entailed by
the facts and circumstance of the case.

Peshawar High Court

 2278
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
17. 01. 2011 CHIEF JUSTICE

Peshawar High Court

 2279
Sardar Javed Iqbal --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M. No. 224/2010 Date of hearing 31.01.2011

EJAZ AFZAL KHAN, CJ.- This Cr.M has been moved

for the quashment of the order dated 11.02.2010 of this Court,
whereby, Criminal Appeal No.640/2009 has been dismissed as
withdrawn.

2. The learned counsel appearing on behalf of the

petitioner contended that what was sought to be withdrawn was
Cr.Misc.No.473/2009 and not the appeal but due to lake of proper
communication, the appeal was dismissed as withdrawn.

3. We have gone through the available record

carefully and considered the submissions made by the learned
counsel for the petitioner.

4. The contention, thus, made appears to be correct.

We, therefore, quash the order dated 11.02.2010 and hold that it
would be confined only to the dismissal of Cr.Misc.No.473/2009
and not the appeal No.640/2009. The criminal appeal is directed to
be restored to its original number. This Cr.M. is disposed of
accordingly.

Announced.
25. 05. 2010 CHIEF JUSTICE

JUDGE

Peshawar High Court

 2280
Amir Muhammad --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr. Misc (BA) No. 2062/2011 Date of hearing 21.02.2011

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997 / 14 F. Act, vide FIR No.969 dated
28.11.2010 in Police Station Risalpur, sought his release on bail
mainly on the ground that he has been in Jail for about three
months; yet commencement of his trial, let alone of its conclusion,
is not in sight and that the report of the chemical examiner which
has been issued today casts thick cloud of doubt over the whole
affair

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, notwithstanding, the
lapse highlighted by the learned counsel for the petitioner, as it is
not, in any way, going to affect the merits of the case.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. No doubt, according to the averments made in the

FIR, the petitioner has been charged for having been found in
possession of 05 kilograms of ‘Charas’ but why his case has not
been sent to the trial Court, even after the passage of about three
months, is a question, which finds no answer from the available
record. I, thus, allow this petition and direct that the petitioner be
released on bail, if he furnishes bail bonds in the sum of
Peshawar High Court
 2281
Rs.2,00,000/- (Rupees two lac) with two sureties, each in the like
amount to the satisfaction of the learned Trial Court, who is to
ensure that the sureties are local, reliable and men of means.

Announced.
21. 02. 2011 CHIEF JUSTICE

Peshawar High Court

 2282
Adnan Saz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr. Misc (BA) No. 12/2011 Date of hearing 21.02.2011

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.396 dated
06.12.2010 in Police Station Karak, sought his release on bail on
the ground that he is not likely to be awarded the maximum
sentence provided by the statute for possessing 02 kilograms of
“Charas” and 110 grams of “Heroin”.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2283

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
21. 02. 2011 CHIEF JUSTICE

Peshawar High Court

 2284
Said Kamal --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 25/2011 Date of hearing 21.02.2011

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.716 dated
17.12.2010 in Police Station Takht Bhai, sought his release on bail
on the ground that he is not likely to be awarded the maximum
sentence provided by the statute for possessing 02 kilograms of
“Charas” and 200 grams of “Heroin”.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2285
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
21. 02. 2011 CHIEF JUSTICE

Peshawar High Court

 2286
Samiullah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 31/2011 Date of hearing 21.02.2011

EJAZ AFZAL KHAN, CJ.- By this single judgment, I

propose to decide Cr. Miscs. (BAs) No.31 & 55 of 2011, wherein,
petitioners who are charged in a case registered against them under
Section 9(C) of the Control of Narcotics Substances Act, 1997,
vide FIR No.1284 dated 23.12.2010 in Police Station Chamkani,
Peshawar have sought their release on bail mainly on the ground
that it is yet to be determined whether the incriminating substance
recovered from beneath one of the front seats was belonging to the
petitioner in Cr.M (BA) No.31/2011 or the petitioner in Cr.M (BA)
No.55/2011.

2. The learned Additional Advocate General appearing

on behalf of the State argued that both the petitioners appear to be
in league with each other and that they being, prima facie,
connected with a crime, attracting the prohibitory clause, don’t
deserve the concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Whether the recovery effected could be debited in

the account of the petitioner in Cr.M (BA) No.31/2011 or the
petitioner in Cr.M (BA) No.55/2011 is a question requiring further
inquiry. The fact that they spent almost two months in jail would
further tilt the scales of justice in favour of bail rather than jail, that
too, when the commencement of their trial let alone its conclusion
is not in sight.

Peshawar High Court

 2287
5. For the reasons discussed above, these petitions are
allowed and each of the petitioners is directed to be released on
bail on furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees
two lac) with two sureties, each in the like amount to the
satisfaction of the learned Trial Court, who is to ensure that the
sureties are local, reliable and men of means.

Announced.
21. 02. 2011 CHIEF JUSTICE

Peshawar High Court

 2288
Muhammad Asim --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1870/2010 Date of hearing 21.02.2011

EJAZ AFZAL KHAN, CJ.- Petitioner who is charged in

a case registered against him under Section 9(C) of the Control of
Narcotics Substances Act, 1997, vide FIR No.926 dated
06.11.2010 in Police Station Badhber, Peshawar, sought his release
on bail mainly on the ground that he being passerby has nothing to
do with the incriminating substance recovered from the vehicle and
that the very delay in sending the parcel to the FSL would make
the report doubtful.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that as much as fifteen kilograms of
Charas has been recovered from the petitioner and that he being,
prima facie, connected with a crime, attracting the prohibitory
clause, doesn’t deserve the concession of bail at this stage.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.
4. None of the contentions raised by the learned
counsel for the petitioner can be appreciated without deeper
appreciation of evidence, which is not the domain of this Court
while hearing a petition for bail. The petitioner being, prima facie,
connected with a crime, attracting prohibitory clause, doesn’t
deserve the concession of bail, atleast, at this stage.

5. For the reasons discussed above, this petition being

without substance is dismissed. However, the prosecution is

Peshawar High Court

 2289
directed to forward the case of the petitioner to the learned Trial
Court within a fortnight while the latter is directed to conclude the
trial of the petitioner as expeditiously as possible. The office is
directed to send back the record as early as possible but not later
than three days.

Announced.
21. 02. 2011 CHIEF JUSTICE

Peshawar High Court

 2290
Abdul Malik --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 01/2011 Date of hearing 28.02.2011

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the case from District Buner to any other
District of the Province on the ground that he is lodged in Mardan
Jail and, if and when, he is taken to District Buner to attend the
Trial Court, he is exposed to serious threat from the militants.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioner.

3. During the course of arguments, when questioned

how petitioner is taken to the Court, the reply was that he is taken
in APC (police armed van). When so, I don’t think, the ground
urged calls for the transfer of the case from one Court to another or
from one district to another. If at all the petitioner apprehends
threat at the hands of the militants, the number of guards, if less,
can be increased to assure his proper protection. Even otherwise,
the petitioner can also file an application before the learned Trial
Court for dispensing with his presence during trial. This Cr.M.
(Transfer Application) being without substance is dismissed in
limine.

Announced.
28. 02. 2011 CHIEF JUSTICE

Peshawar High Court

 2291
Kamran Hameed --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT

Cr. M. No. 937/2010 Date of hearing 03.03.2011

EJAZ AFZAL KHAN, C.J.- A Pick-up bearing

Registration No.D-7566-Peshawar, going from Pabbi to Nowshera,
was stopped by Mumtaz Hussain SI. It was driven by Kamran
Hameed appellant herein. The other person sitting with the driver
was Fazal Muhammad, who is a convicted co-accused. When it
was searched a bag containing four packets of heroin beneath the
feet of the front seater was found. On weighing, each packet was
found of one Kg. A case under Section 9 CNSA was registered
against them, vide FIR No. 20, dated 12-3-2010 in the Police
Station ANF, Peshawar.

2. After their arrest and completion of investigation,

they were forwarded to the court of learned Judge Special Court
Peshawar for trial who on its conclusion, convicted and sentenced
them to undergo 2 years R.I. each, with a fine of Rs.50000/- each,
or in default to undergo six months S.I. each, with benefit of
Section 382-B Cr.P.C., vide judgment dated 5.11.2010. Hence, this
appeal.

3. The main contention of the learned counsel for the

appellant was that the bag containing heroin was recovered not
from beneath the feet of the appellant but from beneath the feet of
the other convicted co-accused and that in the absence of any
evidence showing conscious knowledge on the part of the
appellant, he cannot be linked with the crime and that the
conviction and sentence recorded by the learned trial court being
based on no evidence is liable to be set aside.

Peshawar High Court

 2292
4. As against that, the learned counsel appearing on
behalf of the respondent contended that in the report recorded on
the spot and in the statement of PW.4 recorded in the court, the
appellant has been shown as occupier of the front seat while the
other convicted co-accused has been shown as occupier of the
second seat and that if this aspect of the case is considered, the
appellant was rightly convicted and sentenced by the learned trial
Court and that the impugned judgment being free from any
infirmity is not open to any interference.

5. We have gone through the record carefully and have

also considered the submissions made by the learned counsel for
the parties.

6. A look at the Murasila would reveal that the aspect

highlighted by the learned counsel for the respondent has been
clearly and distinctly stated. It was further made clear in the
statement of PW.4 in his examination-in-chief which is reproduced
below for the sake of clarity:-

“The driver as well as the front seater of

the pick up were overpowered and on my enquiry
the driver disclosed his name as Kamran Hameed
s/o Fazal Hameed R/O Mohalla Mall Tapi Aman
Kot Pabbi, Nowshera, while the 2nd seater disclosed
his name as Fazal Muhammad s/o Ghulam
Muhammad r/o shabrha Police Station Nowshera.
On search of the vehicle I recovered 4 packets of
heroin wrapped with brown envelopes and plastic
and were lying in a cloth bag beneath the feet of
front seater which were also wrapped through
yellow salution tape.”

7. A look at the above quoted part of the statement

reveals that the argument addressed by the learned counsel for the
appellant is not correct. The record further reveals that all the PWs
unanimously stated about the factum of recovery. Their testimony
despite skilful cross-examination did nothing to discredit it. There

Peshawar High Court

 2293
is also nothing on the record to show that any PW had any interest
or animus to foist a false recovery or give false evidence against
them. When so, we do not think the conviction and sentence
recorded by the learned trial court is based on no evidence. The
impugned finding, being based on proper appraisal of evidence, is
not open to any interference.

8. For the reasons discussed above, this appeal being

without any substance is thus dismissed.

CHIEF JUSTICE
Announced on
3rd Mar.,2011 JUDGE

Peshawar High Court

 2294
Mst. Bagh Bhari --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr. M. (QP) No. 14/2011 Date of hearing 07.03.2011

EJAZ AFZAL KHAN, CJ.-Petitioners through the instant

petition have asked for the quashment of FIR No.486 dated
27.12.2010, registered against them & others under Sections 365-
B, PPC in Police Station, Toru, Mardan mainly on the ground that
they were involved in the instant case with malice and mala fide
intention.

2. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the petitioners.

3. Since the case has been forwarded to the Court of

competent jurisdiction, the petitioners may, if so advised, move an
application there for their acquittal under Section 265-K, of the
Cr.PC. This petition being premature is, thus, dismissed in limine.

Announced.
07. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2295
Jansar --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.M (TA) No. 03/2011 Date of hearing 07.03.2011

EJAZ AFZAL KHAN, CJ.-Petitioner through the instant

petition seeks transfer of the case pending in the Court of the
learned Sessions Judge, Kohistan to any other District mainly on
the ground that he has seen the learned Judge with the company of
close relative of accused party, which may prejudice his case at
later stage.

2. As against that the learned Advocate General

appearing on behalf of the respondents contended that these are
wild allegations without having a speck of truth therein, therefore,
the Cr.M. being misconceived be dismissed.

3. I have gone through the available record carefully

and considered the submissions made by the learned counsel for
the parties.

4. No ground, much less, convincing has been pointed

out to justify the transfer of the case from the Court of learned
Sessions Judge, Kohistan to another. This Cr.M (Transfer
Application), thus, being without substance is dismissed.

Announced.
07. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2296
Jangreez Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 108/2011 Date of hearing 07.03.2011

EJAZ AFZAL KHAN, CJ.- Jangreez alias Iqbal,

petitioner, who is charged in a case registered against him under
Section 9(C) of the Control of Narcotics Substances Act, 1997 / 13
of the Arms Ordinance, 1965, vide FIR No.499 dated 29.12.2010
in Police Station Akbar Pura, District Nowshera, has sought his
release on bail on the ground that he is not likely to be awarded the
maximum sentence provided by the statute for possessing three
kilograms of “Charas”.

2. As against that the learned Deputy Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.
4. Since the magnitude of sentence has to be
commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2297

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
07. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2298
Nisar Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 247/2011 Date of hearing 07.03.2011

EJAZ AFZAL KHAN, CJ.- Nisar, petitioner, who is

charged in a case registered against him under Section 9(C) of the
Control of Narcotics Substances Act, 1997, vide FIR No.1256
dated 08.12.2010 in Police Station Chamkani, District Peshawar,
has sought his release on bail on the ground that he is not likely to
be awarded the maximum sentence provided by the statute for
possessing three kilograms of “Charas”.

2. As against that the learned Deputy Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2299
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.2,00,000/- (Rupees two lac)
with two sureties, each in the like amount to the satisfaction of the
learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
07. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2300
Bakhtawar --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 09/2011 Date of hearing 07.03.2011

EJAZ AFZAL KHAN, CJ.-By this single judgment, we

propose to decide Cr.Miscs. (BAs) No.09 & 238 of 2011, wherein,
petitioners, who are charged in a case registered against them and
others under Sections 324 / 353 / 341 / 342 / 382 / 148 / 149, PPC
read with Section 7 of the Anti-Terrorism Act, 1997, vide FIR
No.92 dated 30.04.2009 in Police Station Mingora, District Swat
have sought their release on bail mainly on the ground that their
case is not distinguishable from those, who have been released on
bail vide order dated 06.05.2010, 06.12.2010 and 30.12.2010 of
this Court.

2. The learned Additional Advocate General appearing

on behalf of State didn’t dispute the aforesaid position. In this view
of the matter, these petitions are allowed and it is directed that the
petitioners be released on bail, provided each of them furnishes
bail bonds in the sum of Rs.5,00,000/- (Rupees five lac) with two
sureties, each in the like amount to the satisfaction of the learned
Trial Court, who is to ensure that the sureties are local, reliable
and men of means.

Announced.
07. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2301
Zaheer Khan --- Appellant/Petitioner (s)

Versus
Sher Afzal --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 221/2011 Date of hearing 07.03.2011

EJAZ AFZAL KHAN, CJ.-Zaheer Khan, petitioner, who

is charged in a case registered against him and another under
Sections 324 / 34, PPC, vide FIR No.1113 dated 31.10.2010 in
Police Station Chamkani, District Peshawar has sought his release
on bail mainly on the ground that the matter has been patched up
between the parties.

2. Sher Afzal, complainant present in Court by placing

on the record Compromise Deed affirmed the above stated position
and has no objection to the release of the petitioner on bail.

3. The learned Deputy Advocate General appearing on

behalf of State didn’t dispute the aforesaid position. In this view of
the matter, this petition is allowed and it is directed that the
petitioner be released on bail on furnishing bail bonds in the sum
of Rs.1,00,000/- (Rupees one lac) with two sureties, each in the
like amount to the satisfaction of the learned Trial Court, who is to
ensure that the sureties are local, reliable and men of means.

Announced.
07. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2302
Dilawar --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 304/2011 Date of hearing 18.03.2011

EJAZ AFZAL KHAN, CJ.- Dilawar, petitioner, who is

charged in a case registered against him under Section 9(C) of the
Control of Narcotics Substances Act, 1997, vide FIR No.770 dated
12.11.2010 in Police Station Pishtakhara, District Peshawar, has
sought his release on bail on the ground that he is not likely to be
awarded the maximum sentence provided by the statute for
possessing 1100 grams of “Charas”.

2. As against that the learned counsel appearing on

behalf of the State opposed the grant of bail to the petitioner by
submitting that he being, prima facie, connected with a crime,
attracting the prohibitory clause, doesn’t deserve the concession of
bail at this stage, even if it is presumed for a while that he is not
likely to be awarded the maximum sentence provided by the
statute.
3. I have gone through the record carefully and
considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2303
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty
thousand) with two sureties, each in the like amount to the
satisfaction of the learned Trial Court, who is to ensure that the
sureties are local, reliable and men of means.

Announced.
18. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2304
Muhammad Nawaz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 315/2011 Date of hearing 18.03.2011

EJAZ AFZAL KHAN, CJ.- Muhammad Nawaz,

petitioner, who is charged in a case registered against him under
Section 9 of the Control of Narcotics Substances Act, 1997, vide
FIR No.75 dated 04.02.2011 in Police Station Billi Tang, District
Kohat, has sought his release on bail on the ground that he is not
likely to be awarded the maximum sentence provided by the statute
for possessing three kilograms of “Charas”.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2305
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2306
Sajid ---Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 337/2011 Date of hearing 18.03.2011

EJAZ AFZAL KHAN, CJ.- Sajid, petitioner, who is

charged in a case registered against him under Section 9 of the
Control of Narcotics Substances Act, 1997 / Section 13 of the
Arms Ordinance, 1965 / 188, vide FIR No.142 dated 02.02.2011 in
Police Station Topi, District Swabi, has sought his release on bail
on the ground that he is not likely to be awarded the maximum
sentence provided by the statute for possessing 3775 grams of
“Charas”.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the

Peshawar High Court

 2307
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2308
Fayyaz --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 348/2011 Date of hearing 18.03.2011

EJAZ AFZAL KHAN, CJ.- Fayaz, petitioner, who is

charged in a case registered against him under Section 9(C) of the
Control of Narcotics Substances Act, 1997, vide FIR No.1412
dated 30.10.2010 in Police Station Agha Mirjani Shah, District
Peshawar, has sought his release on bail on the ground that he is
not likely to be awarded the maximum sentence provided by the
statute for possessing 1050 grams of “Charas”.

2. As against that the learned Additional Advocate

General appearing on behalf of the State opposed the grant of bail
to the petitioner by submitting that he being, prima facie,
connected with a crime, attracting the prohibitory clause, doesn’t
deserve the concession of bail at this stage, even if it is presumed
for a while that he is not likely to be awarded the maximum
sentence provided by the statute.

3. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2309

5. For the reasons discussed above, this petition is

allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.50,000/- (Rupees fifty
thousand) with two sureties, each in the like amount to the
satisfaction of the learned Trial Court, who is to ensure that the
sureties are local, reliable and men of means.

Announced.
18. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2310
Rehman ud Din --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 399/2011 Date of hearing 18.03.2011

EJAZ AFZAL KHAN, CJ.- Rehman-ud-Din, petitioner,

who is charged in a case registered against him under Section 9(C)
of the Control of Narcotics Substances Act, 1997, vide FIR No.123
dated 12.02.2011 in Police Station Pishtakhara, District Peshawar,
has sought his release on bail on the ground that he is not likely to
be awarded the maximum sentence provided by the statute for
possessing three kilograms of “Charas”.

2. As against that the learned counsel appearing on

behalf of the State opposed the grant of bail to the petitioner by
submitting that he being, prima facie, connected with a crime,
attracting the prohibitory clause, doesn’t deserve the concession of
bail at this stage, even if it is presumed for a while that he is not
likely to be awarded the maximum sentence provided by the
statute.
3. I have gone through the record carefully and
considered the submissions made by the learned counsel for the
parties.

4. Since the magnitude of sentence has to be

commensurate with the magnitude of the substance recovered, I
doubt the petitioner can be awarded a sentence attracting
prohibitory clause for possessing the above mentioned quantity of
the substance. Needless to say that the Court while being seized of
an application for bail is not supposed to keep in view the
maximum sentence provided by the statute but the one which is
likely to be entailed by the facts and circumstance of the case.

Peshawar High Court

 2311
5. For the reasons discussed above, this petition is
allowed and the petitioner is directed to be released on bail on
furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three
lac) with two sureties, each in the like amount to the satisfaction of
the learned Trial Court, who is to ensure that the sureties are local,
reliable and men of means.

Announced.
18. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2312
Niaz Ali Shah --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 376/2011 Date of hearing 18.03.2011

EJAZ AFZAL KHAN, CJ.- Niaz Ali Shah alias Gud,

petitioner herein, who is charged in a case registered against him
and others under Sections 302 / 324 / 148 / 149, PPC, vide FIR
No.502 dated 12.09.2010 in Police Station Shah Qabool,
Peshawar, has sought his release on bail mainly on the ground that
co-accused, similarly placed, has been released on bail by this
Court vide order dated 03.01.2011 as it is well-settled principle of
law that alike be treated alike.

2. As against that the learned counsel appearing on

behalf of the State contended that the role of the petitioner is
distinguishable from that of co-accused, who has been released on
bail, as he was held entitled to be released on bail on account of
firearm injury on his person, whereas, it is not the case here.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record reveals that the petitioner is directly

charged in the FIR for having fired affective shots on the deceased.
He, thus, prima facie, stands linked with a crime attracting the
prohibitory clause. I, therefore, don’t feel persuaded to
countenance his request for the grant of bail. The argument that the
petitioner is similarly placed with his co-accused, who has been
released on bail is not correct as he was held entitled to be released
on bail on account of firearm injury on his person, which is no the
case here.

Peshawar High Court

 2313
5. For the reasons discussed above, this petition being
without substance is dismissed. Since the investigation in the case
is complete, the prosecution is directed to forward the case within
one month for trial to the Court of competent jurisdiction while the
latter is directed to conclude it within a period of four months,
failing which, the petitioner may, if so advised, approach this
Court for bail through a fresh petition.

Announced.
18. 03.2011 CHIEF JUSTICE

Peshawar High Court

 2314
Noor Zada --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No. 1978/2010 Date of hearing 18.03.2011

EJAZ AFZAL KHAN, CJ.- Noor Zada, petitioner herein,

who is charged in a case registered against him and others under
Sections 302 / 148 / 149, PPC, vide FIR No.221 dated 08.08.2009
in Police Station Mattani, Peshawar, has sought his release on bail
on the ground that as many as seven persons have been charged in
the FIR without specifying, whose shot turned fatal; that the
occurrence appearing to have taken place in the tribal area,
couldn’t have been investigated into by the local police and that
the complicity of the petitioner in the circumstances of the case
calls for further inquiry.

2. As against that the learned Advocate General

assisted by the learned counsel for the complainant contended that
none of the contentions raised by the learned counsel for the
petitioner can be gone into at this stage without recording evidence
and that the petitioner being, prima facie, linked with a crime
attracting the prohibitory clause, doesn’t deserve the concession of
bail, when he also remained absconder.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. None of the grounds urged by the learned counsel

for the petitioner can be appreciated without deeper appreciation of
evidence, which is not the domain of this Court while hearing a
petition for bail. The petitioner being, prima facie, connected with
a crime, attracting the prohibitory clause, doesn’t deserve the
concession of bail, atleast, at this stage.

Peshawar High Court

 2315
5. For the reasons discussed above, this petition being
without substance is dismissed. Since the trial of the petitioner has
since commenced, I would direct the learned Trial Court to
conclude this case within a period of six months, failing which, the
petitioner may, if so advised, approach this Court for bail through a
fresh petition.

Announced.
18. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2316
Sirtaj --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT
Cr.Misc (BA) No 403/2011 Date of hearing 21.03.2011

EJAZ AFZAL KHAN, CJ.- Sartaj, petitioner herein, who

is charged in a case registered against him and another under
Sections 324 / 34, PPC, vide FIR No.363 dated 05.07.2006 in
Police Station Chamkani, Peshawar, has sought his release on bail
on the ground that in view of proviso of Section 337(N), PPC, he
cannot be awarded sentence in terms of imprisonment, even for an
offence under Section 324, PPC and that he being minor is entitled
to be released on bail.

2. As against that the learned counsel appearing on

behalf of the State assisted by the learned counsel for the
complainant contended that the petitioner is directly charged in the
FIR for having fired two effective shots on the person of the
complainant and that he being, prima facie, linked with a crime
attracting the prohibitory clause, doesn’t deserve the concession of
bail, especially, when he also remained fugitive from law for more
than four years.

3. I have gone through the record carefully and

considered the submissions of the learned counsel for the parties.

4. The record reveals that the petitioner is charged for

having fired two effective shots on the person of the complainant.
It further reveals that one of the bullets after hitting the
complainant entered her abdominal cavity culminating in
perforation and then laprotomy. He, thus, stands connected with a
crime attracting the prohibitory clause.

Peshawar High Court

 2317
5. The argument that the petitioner is not likely to be
awarded sentence in terms of imprisonment in view of proviso of
Section 337(N), PPC, so long as he hasn’t been found previous
offender, habitual, hardened or desperate criminal, hasn’t
impressed me, when he, besides being charged for causing hurt is
also charged for attempting murder under Section 324 of the PPC,
which provides that offender, in such cases, shall be sentenced to
imprisonment, which may extend to ten years. I, therefore, don’t
feel persuaded to countenance the request of the petitioner for the
grant of bail, especially, when he also remained fugitive from law
for more than four years, notwithstanding, argument of minority.

6. For the reasons discussed above, this petition being

without substance is dismissed. None of the observations,
mentioned above, will influence the Court while making inquiry in
terms of Section 7 of the Juvenile Justice System Ordinance, 2000.
It would, however, be desirable that the case of the petitioner be
concluded as early as possible but not later than four months.

Announced.
21. 03. 2011 CHIEF JUSTICE

Peshawar High Court

 2318
ABDUL GHAFOOR---Petitioner

Versus

THE STATE and another---Respondents

JUDGMENT

Cr.M No.444/2011 Decided on 04.04.2011

2011 M L D 1048 Peshawar
C rimi n al Procedure Code (V of 1898)---

Ejaz Afzal Khan, C. J. ----S. 497(2)---Penal Code (XLV

of 1860), S.365-B/34---Kidnapping, abducting or inducing woman
to compel for marriage etc.---Bail, grant of,--Further inquiry---
Accused had asked for his release on bail mainly 6n the grounds
that alleged abductee was his legally wedded wife; and that the
previous Nikahnama appeared to be a brain child of the
complainant to make out a case of abduction for marriage---
Whether alleged abductee was already married or her alleged
marriage was just a pretext to keep her away from her husband she
married against the wishes of her family, was a question requiring
further enquiry--Accused was admitted to bail, in circumstances.

Muhammad Qasim Khan Khattak for Petitioner

Zahid Yousaf, A.A.-G. for the State.

Date of hearing: 4th April, 2011.

Peshawar High Court

 2319
MUHAMMAD NAZIR KHAN---Petitioner

Versus

THE STATE---Respondent

JUDGMENT

Cr.M (QP) No. 19/ 2001 Decided on 24th January, 2002

(2003 P Cr. L J 1202 Peshawar)

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

Qazi Ehsanullah Qureshi and Ejaz Afzal Khan, JJ ----

Ss. 514, 498 & 561-A---Penal Code (XLV of 1860),
Ss.302/324/148/ 149---Forfeiture of surety bond---Petitioner after
getting successive transitory pre-arrest bail orders from different
Courts appeared before Trial Court on the date fixed for his
appearance in last bail order---Trial Court initiated proceedings
against petitioner and his sureties under S.514, Cr.P.C., for his
failure to appear on the date fixed in such first bail order---
Validity---Record showed that on expiry of period of one order
passed by one Court, petitioner had obtained another order from
another Court of competent jurisdiction---Petitioner had neither
tried to abscond or misuse process of Court nor he or his sureties
had violated terms of bond---Trial Court had declined relief of pre-
arrest bail to petitioner without seeing its record and giving him an
opportunity to justify his claim---Such conduct of Trial Court was
not in harmony with dignity and decorum of Courts, which are
sanctuaries meant to protect rights of liberties of people, and not to
curb and curtail them by resorting to a process unbecoming of
them High Court accepted petition and quashed impugned
proceedings.

(b) Administration of justice---

Peshawar High Court

 2320
----Courts are sanctuaries meant to protect rights and liberties of
people, and not to curb and curtail them by resorting to a process
unbecoming of them.

Saleemullah Khan Ranazai for Petitioner.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Date of hearing: 23rd January, 2001.

JUDGMENT
EJAZ AFZAL KHAN, J.--- The petitioner has impugned the
orders dated 6-10-2001 and 5-11-2001 passed by the learned
Sessions Judge, Lakki in a case registered against him under
sections 302/324/148/149, P.P.C. vide F.I.R. No.204, dated 28-3-
2001 in Police Station Pezu, Tehsil and District Lakki Marwat by
filing this petition under section 561-A, Cr.P.C.

2. The facts forming the background of this case are that the
petitioner obtained transitory pre-arrest bail from the Court of
learned Additional Sessions Judge/Judge Special Court, Peshawar
vide order dated 25-9-2001 wherein he was directed to appear
before the learned Judge Special Court, Bannu on 29-9-2001. The
petitioner on the date fixed somehow or the other did not appear
before the said Court and instead proceeded to obtain transitory,
pre-arrest bail from the Judge, Special Court, Bannu, who vide
order dated 29-9-2001 granted it and directed the petitioner to
appear before the Court of learned Sessions Judge, Lakki Marwat
on 6-10-2001. The petitioner again instead of doing the needful
moved this Court through Criminal Miscellaneous No. 188 of 2001
for the transitory pre-arrest bail on 6-10-2001 which was
accordingly granted vide order dated 18-10-2001. On 6-10-2001
when the petitioner failed to make appearance before the learned
Sessions Judge, Lakki in accordance with the order of learned
Sessions Judge, Bannu, the former proceeded to forfeit the bond
and issued notice to the accused as well as his sureties vide order
dated 6-10-2001. Similarly, the learned Sessions Judge while

Peshawar High Court

 2321
taking notice of the failure of the petitioner to appear in his Court
on 29-9-2001 in compliance with the order dated 25-9-2001 of the
learned Additional Sessions Judge-I/Judge Special Court Peshawar
proceeded to forfeit the bond and initiated proceedings against the
petitioner and his sureties under section 514 Cr.P.C. vide order
dated 5-11-2001.

3. The learned counsel for the petitioner contended that once the
petitioner appeared in the Court of law and submitted another
bond, the pond earlier submitted stood automatically discharged, as
such no proceeding under section 514, Cr.P.C. could be initiated
against him and his sureties. He next contended that though the
petitioner was directed by the learned Additional Sessions Judge
Peshawar to appear in the Court of learned Sessions Judge Lakki
Marwat on 29-9-2001, he could not appear in the Court for the
reason that he apprehended that his application for pre-arrest bail
shall be rejected as the learned Judge has already rejected a similar
application of his co-accused in limine without summoning the
record vide his order dated 21-9-2001.

4. In this background, learned counsel for the petitioner elaborated

that the petitioner moved the Court of learned Sessions Judge
Bannu and obtained an order up to 6-10-2001 and for this reason
he again could not appear in the Court of learned Sessions Judge
Lakki Marwat and, as such, deemed it safe to move this Court for
obtaining the relief which was ultimately granted on 18-10-2001.
The learned counsel by concluding his arguments contended that
the petitioner neither absconded nor defied the process of the
Court, in fact he according to the exigencies and grave-ground
realities approached one Court or the other to get relief which is
permitted and not prohibited by any law, hence the proceedings
initiated by the learned Sessions Judge Lakki Marwat are
misconceived if not mala fide.

5. As against this, the learned Deputy Advocate-General while

referring to section 514, Cr.P.C. contended that the impugned
orders are perfectly in accordance with the law and spirit of section
514, Cr.P.C. and that no such order has been passed by the learned

Peshawar High Court

 2322
Sessions Judge as could result in the abuse of the process of the
Court.

6. We have heard the learned counsel for the parties, perused the
record and carefully considered their submissions in the light of the
relevant law.

It is pertinent to note that nowhere the petitioner tried to abscond

or misuse the process of the Court. It is also palpable from the
record that on the expiry of period of one order passed by one
Court, the petitioner obtained another from another Court of
competent jurisdiction, therefore, at no point of time he or his
sureties violated the terms of the bond.

8. It is strange and even surprising to note that the learned Sessions

Judge Lakki Marwat declined to grant the relief of pre-arrest bail
to the accused/petitioner who approached it with outstretched
hands for the purpose, without seeing the record and without
giving him an opportunity to vindicate his position and justify his
claim for the relief sought. This conduct of the learned Sessions
Judge Lakki Marwat, we are constrained to observe, cannot be in
harmony with the dignity and decorum of the Courts of law which
are sanctuaries meant to protect the C rights and liberties of the
people and not to curb and curtail them by resorting to a process
unbecoming of them.

8. For the foregoing reasons, we do not think that it is a case where

any of the bail bonds was legally required to be forfeited and
proceedings under section 514, Cr.P.C. could be initiated against
the petitioner and his sureties. Therefore, this petition is allowed
and the impugned proceedings so initiated against the petitioner
and his sureties are hereby quashed.

S.A.K./821/P
Petition allowed.

Peshawar High Court

 2323
Imtiaz Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT

Q.P. No. 57/2010 Date of hearing 16.04.2010

EJAZ AFZAL KHAN, C.J.- Petitioner through the instant

petition sought custody of the vehicle bearing No.5679 LWH on the
ground that he was last found in possession thereof; that there is no
evidence whatever to show that it was he who forged the document
or even tampered with the chassis No. and that he being a bonafide
purchaser has a better claim that too when there is no rival
claimant.

2. As against that the learned counsel appearing on

behalf of the State opposed the application by submitting that the
mere fact that the petitioner was last possessor of the vehicle cannot
justify his claim to its custody; that the documents showing sale in
his favour, besides being doubtful, have no value in view of the
provision contained in Section 32 of the Motor vehicle Ordinance,
1965 which requires incorporation of the transfer of ownership of
the vehicle with the Registration Authority within a month of its
purchase. The refusal of custody of the vehicle to the petitioner, the
learned counsel added, is all the more justified when a criminal case
qua tampering with the chassis No. of the said vehicle has been
registered against the petitioner, its original owner and one another.

3. I have gone through the record carefully and have

also considered the submissions made by the learned counsel for
the parties.

4. Where petitioner was last found in possession of the

vehicle and has something in black and white to support his claim

Peshawar High Court

 2324
thereto. I do not think any useful purpose is likely to be served by
its retention in the police custody. The fact that it is yet to be
enquired into as to who forged the documents and tampered with
the chassis No., would also add in favour of its grant rather than
refusal.

5. For the reasons discussed above, it is directed that

the vehicle in question be released to the petitioner if he furnishes
bonds in the sum of Rs.Six lac, with two sureties, each in the like
amount to the satisfaction of the Illaqa Magistrate. However, the
petitioner shall produce the said vehicle before the trial court as and
when required in the criminal proceedings pending against the
petitioner, vide FIR No.465, dated 25-5-2009. Before parting with
the judgment, it may also be added that none of the observations
made above would prejudice the claim of any person who has better
title to the vehicle mentioned above.

CHIEF JUSTICE

Announced on
16th April. 2010.

Peshawar High Court

 2325
Razar Khan --- Appellant/Petitioner (s)

Versus
The State --- Respondent (s)

JUDGMENT

Q.P. No. 17/2010 Date of hearing 16.04.2010

EJAZ AFZAL KHAN, C.J.- Petitioner through the instant

petition sought custody of the vehicle bearing No.5679 LWH on the
ground that he was last found in possession thereof; that there is no
evidence whatever to show that it was he who forged the document
or even tampered with the chassis No. and that he being a bonafide
purchaser has a better claim that too when there is no rival
claimant.

2. As against that the learned counsel appearing on

behalf of the State opposed the application by submitting that the
mere fact that the petitioner was last possessor of the vehicle cannot
justify his claim to its custody; that the documents showing sale in
his favour, besides being doubtful, have no value in view of the
provision contained in Section 32 of the Motor vehicle Ordinance,
1965 which requires incorporation of the transfer of ownership of
the vehicle with the Registration Authority within a month of its
purchase. The refusal of custody of the vehicle to the petitioner, the
learned counsel added, is all the more justified when a criminal case
qua tampering with the chassis No. of the said vehicle has been
registered against the petitioner, its original owner and one another.

3. I have gone through the record carefully and have

also considered the submissions made by the learned counsel for
the parties.

4. Where petitioner was last found in possession of the

vehicle and has something in black and white to support his claim

Peshawar High Court

 2326
thereto. I do not think any useful purpose is likely to be served by
its retention in the police custody. The fact that it is yet to be
enquired into as to who forged the documents and tampered with
the chassis No., would also add in favour of its grant rather than
refusal.

5. For the reasons discussed above, it is directed that

the vehicle in question be released to the petitioner if he furnishes
bonds in the sum of Rs.Six lac, with two sureties, each in the like
amount to the satisfaction of the Illaqa Magistrate. However, the
petitioner shall produce the said vehicle before the trial court as and
when required in the criminal proceedings pending against him.
Before parting with the judgment, it may also be added that none of
the observations made above would prejudice the claim of any
person who has better title to the vehicle mentioned above.

CHIEF JUSTICE
Announced on
16th April. 2010

Peshawar High Court

 2327
Zahir Shah --- Appellant/Petitioner (s)

Versus
Muhammad Din --- Respondent (s)

JUDGMENT
Quashment Petition No. 142/2010 Date of hearing 05.11.2010

EJAZ AFZAL KHAN, CJ.- Petitioner through the instant

petition has questioned the order dated 20.05.2010 of the learned
Sessions Judge, Timergara, Dir Lower, whereby, he allowed the
revision petition of the respondent, set aside the order dated
15.04.2010 of the learned Judicial Magistrate, Lal Qila Maidan,
District Dir and sent the case back to the learned Trial Court for
decision afresh after recording the evidence.

2. The learned counsel appearing on behalf of the

petitioner contended that where the respondent of his own accord
made a request to the learned Magistrate, hearing the case, for spot
inspection and that when the latter after doing the needful found a
lavatory constructed on a public path and asked the former to
remove it, who not only admitted the aforesaid position but also
agreed to remove the same, he couldn’t have, subsequently,
questioned the order passed by the learned Judicial Magistrate.

3. As against that the learned counsel appearing on

behalf of the respondent contended that the respondent never
agreed to have made obstruction on the public path nor he
consented to remove the construction, therefore, the order passed
by the learned Judicial Magistrate was liable to be set aside and
that the learned Sessions Judge by setting aside the order of the
learned Judicial Magistrate didn’t commit any error or any act as
could result in the abuse the process of the Court so as to justify
the exercise inherent jurisdiction of this Court Section 561-A,
Cr.PC.

Peshawar High Court

 2328
4. The learned counsel appearing on behalf of the
State contended that where respondent admitted before the learned
Judicial Magistrate inspecting the spot to have created obstruction
on a public path, he could neither resile from that nor could he
invoke the revisional jurisdiction of the Court of Sessions.

5. I have gone through the record carefully and

considered the submissions made by the learned counsel for the
parties.

6. The record reveals that the respondent of his own

accord requested the learned Judicial Magistrate to make spot
inspection to see whether obstruction, if any, has been created on a
public path. The learned Judicial Magistrate after going to the spot
and making spot inspection found that the respondent created
obstruction on the public path by constructing a lavatory thereon.
The respondent, as per observations of the learned Judicial
Magistrate, not only admitted the above position but also agreed to
remove the obstruction on the public path. In such situation, the
learned Sessions Judge before entering into the intricacies of law
should have satisfied himself whether the observations made by
the learned Judicial Magistrate in his order were based on fact or
were an offshoot of his imagination. How a matter, which was
apparently settled in an amicable manner, could be reopened at the
instance of a person, who, himself requested the learned Judicial
Magistrate to go on the spot and agreed to remove the obstruction,
when pointed out by the latter. It is not a question of strict
adherence to procedural law or its intricacies but the confidence of
the people in the Presiding Officer of the Court. Reopening of a
matter, without seeing whether it was genuinely settled or
otherwise, would certainly amount to abuse of process of the
Court. An inquiry into this aspect of the case, therefore, was, all
the more, desirable before reversing the order of the learned
Judicial Magistrate on any technical ground.

7. For the reasons discussed above, I allow this

quashment petition, set aside the impugned order and send the case

Peshawar High Court

 2329
back to the learned Sessions Judge for decision fresh in accordance
with law by attending the observations, listed above.

Announced.
05. 11. 2010 CHIEF JUSTICE

Peshawar High Court

 2330
Muhammad Khan --- Appellant/Petitioner (s)

Versus
Rozi Khan --- Respondent (s)

JUDGMENT

Q.P. No. 263/2010 Date of hearing 25.02.2011

EJAZ AFZAL KHAN, C.J.- The learned counsel for the

petitioner states that the matter has been patched up between the
parties. A deed in this respect has also been executed. According to
this deed, the respondent Razai Khan would be entitled to get the
custody of the tractor lying in the Police Station after paying an
amount of Rs.120000/- to the petitioner Muhammad Khan

2. In this view of the matter, this petition is disposed of

with the direction to the SHO concerned to hand over the tractor to
Razai Khan, if he pays the amount mentioned above to the
petitioner.

CHIEF JUSTICE
Announced on
25th Feb ,2011.

Peshawar High Court

 2331

P L D 2004 Peshawar 44

Before Ejaz Afzal Khan, J

DIRECTOR (IS & ML), N.W. F. P. ---Appellant

Versus

DISTRICT LAND ACQUISITION COLLECTOR and others-

--Respondents

Regular First Appeal No.84 of 2000, decided on 1st December.

2003.

Land Acquisition Act (I of 1894)---

----Ss.4, 18, 50(2) & 54---Acquisition of land- --Reference to

Court--Appeal had been directed against order whereby referee
Court had dismissed reference filed by appellant on ground that it
was not filed by a competent person within the terms of S.50(2) of
Land Acquisition Act, 1894---Law had since been amended and
right of reference had been conferred on the Federal Government
including acquiring defendant as held by Shariat Appellate Bench
of Supreme Court m Shariat Appeal No.7 of 1989---Referee Court,
in circumstances, had not acted in accordance with declared law by
dismissing reference without adverting to the merits of the case---
Allowing appeal impugned order was set aside and case was sent
back to the Referee Judge/Court for decision afresh in accordance
with law after giving an opportunity to produce evidence in
support of respective claims.

Haji Muhammad Pervez and 3 others v. Engineer Azizullah Khan

and 4 others PLD 1999 Pesh.53; Messrs Ittehad Cement Industries
v. Government of Balochistan through Secretary Industry, Quetta
and 4 others 1997 CLC 562; Pakistan through Military Estate
Officer, Kharian Cantt. and another v. Abdul Hayee Khan through
Legal Heirs and 5 others PLD 1995 SC 418 and Iftikhar Hussain

Peshawar High Court

 2332
Shah and others v. Pakistan through Secretary, Ministry of
Defence, Rawalpindi and others 1991 SCMR 2193 ref.

Sikandar Rashid for Appellant.

Muhammad Alam Khan for Respondent No.4.

Fazal Muhammad, Tehsildar for the Remaining Respondents.

Date of hearing: 1st December, 2003.

JUDGMENT

This Regular First Appeal is directed against the order dated 8-6-
2000 of the learned Referee Judge, Mardan whereby he dismissed
the reference filed by the appellant on the ground that it was not
filed by a competent person within the terms of section 50(2) of the
Land Acquisition Act.

2. The learned counsel appearing on behalf of the appellant by

placing reliance on the case of Haji Muhammad Pervez and 3
others v. Engineer Azizullah Khan and 4 others PLD 1999
Peshawar 53 and the case of Messrs Ittehad Cement Industries v.
Government of Balochistan through Secretary, Industry, Quetta
and 4 others 1997 CLC 562 contended that in view of the judgment
given by the Shariat Appellate, Bench of the Hon'ble Supreme
Court in Shariat Appeal No.7 of 1989, the right to make reference,
file an appeal and cross-objection has been given to the Federal
Government and the Acquiring Department therefore, the reference
was competent and it should not have been dismissed without
adverting to the merits of the case.

3. As against that the learned counsel appearing on behalf of the

respondents firstly contended that this appeal being connected with
Civil Revision No.610 of 2003 be heard therewith, moreso when,
an order in this behalf has been made by his Lordship Mr. Justice
Talaat Qayum Qureshi on 28-10-2003. The learned counsel by
placing reliance on the case of Pakistan through Military Estate

Peshawar High Court

 2333
Officer, Kharian Cantt. and another v. Abdul Hayee Khan through
Legal Heirs and 5 others PLD 1995 Supreme Court 418 and the
case of Iftikhar Hussain Shah and others v. Pakistan through
Secretary, Ministry of Defence, Rawalpindi and others 1991
SCMR 2193 next contended that in view of the provisions
contained in sections 18 and 50(2) of the Land Acquisition Act,
right of reference or appeal being a creation of statute cannot be
exercised by any person unless so conferred on him under the
statute.

4. I have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

5. The impugned, order would reveal that reference filed by the

appellant was dismissed mainly on the ground of its being
incompetent without knowing that the law has since been amended
and this right has been conferred on the Federal Government
including the Acquiring Department as it was held by the Shariat
Appellate Bench of the Hon'ble Supreme Court in Shariat Appeal
No.7 of 1989, the relevant paragraph whereof is reproduced
hereunder for the facility of reference which reads as under:

"We order that the aforementioned sections of the Act shall

be amended so as to provide for right of making reference,
filing cross-objections and appeal to Federal Government
or the concerned department of the Federal Government or
of the Provincial Government as also the Company or the
local authority for whose benefit the acquisition is made. In
that context the proviso to section 50(2) of the Act shall be
deleted. "

6. Another relevant paragraph of the aforesaid judgment may also

be quoted with advantage which is reproduced as below:--

"The grounds which weighed with the Federal Shariat

Court in making the recommendations are cogent and
sound. The amendments in the aforesaid provisions of the
Act would make the law more consistent and equitable. It is

Peshawar High Court

 2334
against all canons of principles and equity that the
Provincial Government may have a right to refer the matter
to the Court and file a cross-objection but the Federal
Government and its department are not given such a right.
It would amount to negation of justice and is repugnant to
the Injunctions of Islam. The wisdom behind such
amendment would be to give all the parties a fair
opportunity to prove regarding the reasonable amount of
compensation to be awarded. A party who has to pay the
money from its own funds should have been given a chance
to adduce evidence for the purpose of determining the
amount of compensation. The proposed amendments would
advance remedy to an aggrieved party. It would be fair and
just to give a right to make a reference, file a cross-
objection, lead evidence and file an appeal to those parties
who have been denied such a right under sections 18, 22-A,
50 and 54 of the Land Acquisition Act."

7. When considered in this background, I have no hesitation to

hold I that the learned Referee Judge has not acted in accordance
with the declared law of the land by dismissing the reference
without adverting to the merits of the case. The judgments
rendered in the case of Haji Muhammad Pervez and 3 others v.
Engineer Azizullah Khan and 4 others and Messrs Ittehad cement
Industries Ltd. v. Government or Balochistan through Secretary,
Industry, Quetta and 4 others (supra) cited at the bar by the learned
counsel for the respondents are therefore, not relevant to the instant
case as those deal with the appeals filed before the aforesaid
amendment. The argument that this appeal being connected with
Civil Revision No.610 of 2003 be heard therewith as similar
question has been involved therein is incorrect altogether, since no
question of competency or otherwise of the reference has been
agitated in that, therefore, this appeal as well as the civil revision
mentioned above are to be disposed of independently.

8. As a sequal to what has been discussed above, this appeal is

allowed, the impugned order is set aside and the case is sent back
to the learned Referee Judge for decision afresh in accordance with

Peshawar High Court

 2335
law after giving an opportunity to produce evidence in support of
their respective claims. The parties are directed to appear before
the learned Referee Judge on 24-12-2003.

H.B.T./998/P
Case remanded.

Peshawar High Court

 2336

2003 Y L R 1994

[Peshawar]

Before Ejaz Afzal Khan, J

Mst. GOHAR TAJA---Petitioner

Versus

SAJID and others---Respondents

Civil Revision No.165 of 2002, decided on 30th April, 2003.

(a) Civil Procedure Code (V of 1908)---

----S.115---Limitation Act (IX of 1908), Ss.5 & 12---Revision filed

beyond 90 days--Exclusion of time consumed in obtaining certified
copies of impugned order etc.--Scope---No fetter of law of
limitation on suo motu exercise of jurisdiction by High Court
under S.115, C. P. C. ---Word "revision" not mentioned in S.12 of
Limitation Act, 1908--Such time would be excluded by applying
the principles of S.12 of Limitation" Act, 1908 by considering an
application under S.5 thereof---Principles.

The argument that time consumed in obtaining attested copies of

impugned order cannot be excluded under section 12 of Limitation
Act as the word "revision" is not mentioned therein, thus, revision
petition having been filed after expiry of 90 days is liable to be
dismissed, is no doubt quite a deft and dexterous argument, but it is
not strong enough to constitute a bulwark in the way of
entertaining of revision petition raising a substantial question of
law and fact, if considered in the context of section 115, C.P.C.

Expression revision is nowhere mentioned in section 12 of

Limitation Act and so is that of second appeal, but since none of
these proceedings can be entertained without attested copies of

Peshawar High Court

 2337
impugned judgments, such time which is consumed in obtaining
their attested copies has to be excluded under section 5 of
Limitation Act.

Since in view of the proviso to subsection (1) of section 115,

C.P.C., a person making an application under this subsection shall,
in its support, furnish copies of pleadings documents and order of
subordinate Court, the principles of propriety and good conscience
demand that such time be excluded by applying the principles of
section 12 of Limitation Act by considering the same as an
application under section 5 thereof. Even otherwise High Court can
suo motu exercise its jurisdiction under section 115, C.P.C., if any
of the conditions sine qua non for its exercise are in existence.
There is no fetter of law of limitation on suo motu exercise of
jurisdiction under said provisions of law.

Said Muhammad v. Sher Muhammad and 2 others 2001 MLD

1546 ref.

Amir Hussain Shah and others v. Umra and 11 others 1986 SCMR
800 and Pir Muhammad and others v. Lal Din PLD 1964 (W.P.)
461 fol.

(b) Civil Procedure Code (V of 1908)---

----O.IX, Rr.8, 9 & O.XVII, R.5---Limitation Act (IX of 1908),

Arts. 163 & 181---Dismissal of suit in default of appearance on a
date not given by Presiding Officer, but by the Reader of the
Court---Application for restoration of suit---Limitation---Such date
could not be created to be a date of hearing within the terms of
O.IX, R. 8, C. P. C. ---Period of limitation would be governed by
Art. 181 and not Art. 163 of Limitation Act, 1908--Application for
restoration of suit made within three years could not be held to be
barred by law of limitation.

Jamila Begum and others v. Abdullah Jan and others PLD 1997
Pesh 55 and Muhammad Qasim and others v. Moujuddin and
others 1995 SCMR 218 fol.

Peshawar High Court

 2338
Imtiaz v. Mst. Shagufta 2002 CLC 1272 ref.

Tajuddin Khan for Petitioner.

Muhammad Alam Khan for Respondent.

Date of hearing: 30th April, 2003.

JUDGMENT

The petitioner through the instant petition has questioned the order
dated 17-11-2001 of the learned District Judge, Mardan whereby
he dismissed the appeal tiled by the petitioner and thus upheld the
order dated 22-5-2000 of the learned trial Court rejecting the
application for restoration of the suit dismissed in default on 18-
12-1997.

2. The learned counsel appearing on behalf of the petitioner

contended that the date, on which the suit was dismissed for non-
prosecution, having been given by the Reader of the Court and not
by the Presiding Officer cannot be treated as a date of hearing
within the contemplation of Order IX, Rule 9 of the C.P.C. and as
such the application was governed by Article 181 of the Limitation
Act and it- being filed within a period of 3 years from the date of
knowledge of such dismissal was well within time. The learned
counsel to support his contention placed reliance on the case of
Jamila Begum and others v. Abdullah Jan and others (PLD 1997
Pesh 55) and Muhammad Qasim and others v. Moujuddin and
others (1995 SCMR 218).

3. As against that the learned counsel appearing on behalf of the

respondents by referring to the date of the impugned order and that
of filing the revision petition which are 17-11-2001 and 4-3-2002
respectively contended that the petition for having been tiled by the
petitioner after the period of Limitation is liable to be dismissed as
the time consumed in obtaining the attested copies of the
impugned' order cannot be excluded by virtue of section 12 of the
Limitation Act because the word 'revision' does not find mention

Peshawar High Court

 2339
therein. The learned counsel to support his contention placed
reliance on the case of Said Muhammad v. Sher Muhammad and 2
others (2001 MLD 1546). While controverting the arguments
addressed by the learned counsel for the petitioner, the learned
counsel for the respondents urged that in view of amendment in
Order XVII, Rule 5 of the C.P.C. if a ministerial officer in the
absence of a Presiding Officer on a date in the proceedings of a
suit gives a slip to the parties specifying a date for doing needful in
the suit, the Court shall conduct such proceedings on the adjourned
date notwithstanding the fact it was the former rather than the latter
who directed it. The learned counsel placed reliance on the case of
Imtiaz v. Mst. Shagufta (2002 CLC 1272).

4. I have gone through the record and carefully considered the

submissions of the learned counsel for the parties.

5. The argument that the time consumed in obtaining the attested

copies of the impugned order cannot be excluded under section 12
of the Limitation Act as the word 'revision' is not mentioned
therein, therefore, the revision petition for having been tiled after
the expiration of 90 days is liable to be dismissed, is no doubt quite
a deft and dexterous argument but I am afraid, it is not strong
enough to constitute a bulwark in the way of entertaining of
revision petition raising a substantial question of law and fact, if
considered in the context of section 115 of the C.P.C.

6. It is true that the expression 'revision' is nowhere mentioned in

section 12 of the Limitation Act and so is that of second appeal but
since none of these proceedings can be entertained without the
attested copies of the impugned judgments, such time which is
consumed in obtaining their attested copies has to be excluded
'under section 5 of the Limitation Act. It was held in the case of
Amir Hussain Shah and others v. Umra and 11 others (1986 SCMR
800) that where it was made mandatory that second appeal cannot
be filed without the attested copies of the impugned judgment, the
period consumed -in obtaining the copies was to be excluded under
section 5 of the Limitation Act. In the case of Pir Muhammad and
others v. Lal Din PLD (1964 (W.P.) 461), it was held that the

Peshawar High Court

 2340
period of time spent by the parties- in obtaining the copies of the
judgments and decrees of the lower Courts be excluded by
applying the principles of section 12 of the Limitation Act by
considering an application under section 5 thereof.

7. Since in view of the, proviso to subsection (1) of section 115 of

the C.P.C. a person making an application under this subsection
shall, in its support, furnish copies of the pleadings, documents and
order of the subordinate Court, the principles of propriety and good
conscience demand that such time be excluded by applying the
principles of section 12 of the Limitation Act by considering an
application under section 5 thereof. Even otherwise when this
Court can suo motu exercise its jurisdiction under section 115 of
the C.P.C., if any of the conditions sine qua non for its exercise are
in existence, it would be just academic to discuss this aspect of the
case in any further detail particularly when there is no fetter of law
of limitation on suo motu exercise of its jurisdiction under the
aforesaid provisions of law.

8. The argument addressed on the strength of the judgment

rendered in the case of Imtiaz v. Mst. Shagufta (supra) will also do
little to project and prop up the case sought to be convassed by the
learned counsel for the respondents at the bar firstly because the
instant case is not covered by any of the provisions of Order XVII
or its rules and secondly because the aforesaid provisions being
different and distinct in their scope and application cannot be
extended to a suit dismissed in default under the provisions of
Order IX of the C.P.C., moreso when they stand fully interpreted
in the case of Mst. Jamila Begum and others v Abdullah Jan and
others and the case of Muhammad Qasim and others v. Moinuddin
and others (supra) wherein it was held that a suit dismissed for
non-prosecution on a date having been given by the Reader of the
Court and not by the Presiding Officer thereof cannot be treated to
be a date of hearing within the terms of. Order IX, Rule 8 of the
C.P.C. and as such the period of limitation would be governed by
Article 181 and not Article 163 of the Limitation Act.

Peshawar High Court

 2341
9. It is the application for restoration of the suit was made by the
petitioner within 3 years, it cannot be held to be barred by the Law
of Limitation.

10. For the reasons discussed above, this petition is allowed, the
impugned orders are set aside, the suit dismissed for non-
prosecution is hereby restored and the same is sent back to the
learned trial Court for proceeding therewith in accordance with
law.

11. The parties are directed to appear before the Court concerned
on 13-5-2003.

S.A.K./820/P
Petition allowed.

Peshawar High Court

 2342
2003 Y L R 2218

[Peshawar]

Before Ejaz Afzal Khan, J

ROKHAN alias ROMAN and others---Petitioners

Versus

ABDUR RAZAQ and others---Respondents

Civil Revision No.693 of 2000, decided on 23rd April, 2003.

Civil Procedure Code (V of 1908)---

----Ss.12(2), 115 & O. IX, R.6---Petition under S.12(2), C. P. C.,
seeking setting aside of ex parse decree on ground of fraud---
Dismissal of such petition summarily--Validity---Nothing was
available on record to show that petitioners had been served in
accordance with requirements of law or they had knowledge about
proceedings culminating in impugned decree---Even if there had
been any such material on record, the controversy agitated by
petitioners could not be resolved without recording evidence---
Contention that a party not expressing desire for recording
evidence during pendency of proceedings would be estopped by
his own conduct to ask for same before higher forum, might be
correct---Tenor of impugned order would show that Trial Judge
had proceeded to dismiss petition without waiting for stage of
recording evidence as he seemed to be interested in disposal of lis
pending before him, but not in doing justice between the parties---
Disposal of such petition summarily without recording evidence
would be clearly a case of failure of jurisdiction vested in the Trial
Court---High Court accepted revision petition, set aside impugned
order and remanded case for decision afresh after giving
petitioners an opportunity to produce evidence.

Peshawar High Court

 2343
Muhammad Nawaz Khan v. Muhammad Khan and 2 others 2002
SCMR 2003: Abdur Razaq v. Muhammad Aslam and 3 others
1999 SCMR 1714; Government of Sindh through Chief Secretary
and others v. Khalil Ahmad and others 1994 SCMR 782; Choksi
Bhidarbhai Mathurbhai v. Purshottamdas Bhogilal Shah AIR 1962
Guj.10: Mrs. Amina Bibi, General Attorney v. Nasrullah and
others 2000 SCMR 296 and Ghulam Muhammad v. Muhammad
Ahmad Khan and 6 others 1993 SCMR 662 ref.

Mian Muhammad Younas Shah for Petitioner.

H. Abdur Raziq Khan for Respondents.

Date of hearing: 23rd April, 2003.

JUDGMENT

The instant petition is directed against the order dated 23-9-2000 of

the learned Additional District Judge, Peshawar, whereby he
dismissed the petition tiled by the petitioners under section 12(2),
C.P.C.

2. The learned counsel appearing on behalf of the petitioners

contended that when the service of the summons was denied by the
petitioners in that case the learned Additional District Judge could
not have dismissed the petition filed by the petitioners under
section 12(2) of the C.P.C. seeking to question the validity of the
judgment and decree dated 4-12-1993 passed by him, as it raised a
series of questions of fact which could not have been decided
without recording evidence. Similarly he next contended that the
learned Additional District Judge could not have dismissed the
aforesaid petition on the ground of limitation unless some evidence
was brought on the record to show that the petitioners knew about
the ex parte decree and that despite knowledge they filed it after
the expiration of the period provided under Article 181 of the
Limitation Act. The learned counsel by placing reliance on the
case of Muhammad Nawaz Khan v. Muhammad Khan and 2 others
(2002 SCMR 2003) contended that where a case involves a pure

Peshawar High Court

 2344
question of law there oral address or written representation would
be sufficient but where the matter needed either through
documentary or oral evidence of witnesses, there the parties should
be allowed proper opportunity to adduce evidence to substantiate
their contentions. The learned counsel by referring to the case of
Abdur Razaq v. Muhammad Aslam and 3 others (1999 SCMR
1714) contended that where the plea raised involved a factual
controversy, the Court seized of such application was to decide it
after framing the necessary issues and allowing opportunity to the
parties to lead evidence in support thereof. The learned counsel by
referring to the case of Government of Sindh through Chief
Secretary and others v. Khalil Ahmad and others (1994 SCMR
782) contended that where a decree was obtained by fraud the
question of limitation for setting aside the same would not arise.
The learned counsel by referring to the case of Choksi Bhidarbhai
Mathurbhai v. Purshottamdas Bhogilal Shah (AIR 1962 Gujarat
10) contended that fraud vitiates the most solemn transaction and if
a party by suppressing the summons in order to keep his counter
part in ignorance and thereby induces a Court to pass an ex parte
decree it would amount to fraud, therefore, such decree is liable to
be set aside under section 12(2), C.P.C.

3. The learned counsel appearing on behalf of the respondents

contented that the petitioners knew all along about the proceedings
culminating in the decree sought to be set aside through an
application under section 12(2), C.P.C., therefore, the learned
Additional District Judge committed no illegality or jurisdictional
error by dismissing it on the question of limitation without giving
the parties an opportunity to produce evidence in this behalf. The
learned counsel by referring to the judgment of Mrs. Amina Bibi,
General Attorney v. Nasrullah and others (2000 SCMR 296),
contended that while dealing with the allegations under section
12(2), C.P.C. it was not incumbent upon a Court to frame issues,
record evidence and follow the procedure prescribed for decision
of suit. The learned counsel by referring to the case of Ghulam
Muhammad v. Muhammad Ahmad Khan and 6 others (1993
SCMR 662), contented that the very intent of the Legislature for
introducing this provisions of law was to shorten the cumbersome

Peshawar High Court

 2345
procedure of questioning a decree obtained through fraud etc. by a
civil suit, therefore, the order passed by the learned Court below
being in consonance with the spirit of law merits no interference.
The learned counsel by concluding his arguments contented that
where the petitioners did not express their desire for adducing
evidence they cannot later on turn round in the revisional Court to
ask therefore, as they would be estopped by their own conduct to
do so.

4. I have gone through the record and carefully considered the

submissions of the learned counsel for the parties.

5. There is absolutely nothing on the record to show that the

petitioners were served in accordance with the requirements of law
or that they knew about the proceedings culminating in the
impugned decree. Even if there was any such material on the
record to show that they were served or that they knew about the
proceeding all along the controversy agitated by the petitioners
being one of fact could not have been resolved without recording
evidence. It was held in the case of Muhammad Nawaz Khan v.
Muhammad Khan and 2 others (supra) that where a case involved
a pure question of law oral address or written representation would
be sufficient but where the matter needed some factual inquiry
either through documentary or oral evidence it could not have been
resolved without allowing the parties a proper opportunity to
adduce evidence in this behalf. The assertion that the petitioners
were never served and that they never knew about the proceedings
before the date which they mentioned in the application under
section 12(2) of the C.P.C., it was a matter which could not have
been resolved without recording evidence. The learned counsel
appearing on behalf of the respondents could not point out
anything on the record showing that the petitioners were either
served or that they knew about the proceedings culminating in the
impugned decree.

6. There is no cavil with the argument addressed by the learned

counsel for the respondents on the strength of judgments rendered
in the cases of Mrs. Amina Bibi v. Nasrullah and others and that of

Peshawar High Court

 2346
Ghulam Muhammad v. Muhammad and 6 others (supra) that it is
not incumbent upon a Court seized of an application under section
12(2), C.P.C. to frame issues, record evidence and follow the
procedure prescribed for decision of suits in all circumstances,
moreso, when the very intent of the Legislature for introducing this
provisions of law was to curtail the agonies and hardships of the
litigants and to make the procedure of challenging a decree
obtained through fraud etc., less cumbersome but it by no means
dispensed with the need of recording evidence where necessary.
The expression in all circumstances used by the Hon'ble Judges in
the aforesaid judgment by necessary implication and intendment
gives leave and latitude for recording evidence where necessary.

7. The argument that where a party did not express desire for
recording evidence during the pendency of the proceeding it would
be estopped by its own conduct to ask for the same when the
matter is taken to the, higher' forum, may be correct but as is
apparent from the tenor of the impugned order the learned Judge
without waiting for the stage of recording evidence proceeded to
dismiss the petition as he did not seem to be interested in doing
justice between the parties but in mere disposal of the lis pending
before him,

8. As the allegations made by the petitioners in their application

under section 12(2) of the C.P.C. could not have been disposed of
summarily without recording evidence, it would be clearly a case
of failure of exercise of jurisdiction vested.

9. For the reasons discussed above, this petition is allowed, the

impugned order is set aside and the case is sent back to the learned
District Judge for decision afresh in accordance with law after
giving the petitioners an opportunity to produce evidence. As it is
an old case, let it be disposed of as expeditiously as possible.

S.A.K./818/P
Case remanded.

Peshawar High Court

 2347

Peshawar High Court

 2348
2004 C L C 682

[Peshawar]

Before Ejaz Afzal Khan, J

LAND ACQUISITION COLLECTOR, ISLAMABAD-

PESHAWAR MOTORWAY PROJECT NATIONAL,
HIGHWAY AUTHORITY and another---Petitioners

Versus

MUHAMMAD YOUSAF KHAN and others---Respondents

Civil Revision No.610 of 2003, decided on 30th January, 2004.

Land Acquisition Act (I of 1894)--

-
----Ss. 34, 4, 6 & 17---Acquisition of land---Entitlement to get
interest---Property in question which was acquired having been
taken in possession under Ss.6 & 17 of Land Acquisition Act,
1894, it was an indefeasible right of owners of acquired land under
S.34 of said Act to get interest--No canon of law would bar
recovery of interest through a civil suit if same was denied as
owner of acquired land was entitled to it notwithstanding any
waiver or an agreement to the contrary---Award of such interest
through a decree in a civil suit could not be termed to be an.
illegality or jurisdictional error by any norm so as to justify
interference therewith---Award of compound interest, however,
was in no way in conformity with provisions of S.34 of Land
Acquisition Act, 1894.

State of Madhya Pradesh v. Man Mohan Swaroop AIR 1966 MP

270; Lalsaheb Nabin Chandra Hani Deo and another v. The State
of Orissa AIR 1975 Orissa 126 and Land Acquisition Collector,

Peshawar High Court

 2349
Nowshera and others v. Sarfraz Khan and others PLD 2001 SC 514
ref.

Sikandar Rashid for Petitioners.

M. Alam Khan for Respondents.

Date of hearing: 30th January; 2003.

ORDER

The petitioners through the instant petition have questioned the

judgment and decree dated 19-5-2003 of the learned Additional
District Judge-I, Mardan whereby he dismissed the appeal filed by
them and thin upheld the judgment and decree dated 13-7-2002 of
the learned Civil Judge, Mardan.

2. It was argued by the learned counsel for the petitioners that if a

property acquired was taken possession of under section 6 read
with section 17 of the Land Acquisition Act, award of simple
interest at the rate of Rs.6% was mandatory it, however it was
awarded a controversy relating to it cannot be brought to a Civil
Court as an aggrieved person has a right to ask therefore by filing a
reference under section 18 or 30 of the Act. The learned counsel to
support his contention placed reliance on the cases of State of
Madhya Pradesh v. Man Mohan Swaroop AIR 1966 MP 270 and
Lalsaheb Nabin Chandra Hani Deo and another v. The State of
Orissa AIR 1975 Orissa 126.

3. As against that, the learned counsel appearing on behalf of the

respondents argued that execution of a decree passed pursuant to a
suit for recovery of interest permissible under section 34 of the
Land Acquisition Act, was never interfered with by the
Honourable Supreme Court in the case of Land Acquisition
Collector, Nowshera and others v. Sarfraz Khan and others PLD
2001 SC 514, therefore, its recovery through a civil suit cannot be
held to be barred by law, moreso when, according to the proviso of

Peshawar High Court

 2350
the aforesaid provision, owners are entitled to it notwithstanding a
waiver or an agreement to the contrary.

4. I have gone through the record carefully and considered the

submission of the learned counsel for the parties.

5. Be all that as it may, since in any case, it is an indefeasible right

of the owners to get interest under section 34 of the Land
Acquisition Act if the property acquired was taken possession of
under section 6 read with section 17 thereof, no canons of law will
bar its recovery through a civil suit if denied, as the proviso to the
section itself in no uncertain terms, envisages the entitlement of the
owner thereto, notwithstanding any waiver or an agreement to the
contrary. Therefore, I do not think, the award of such interest
through a decree in a civil suit can be termed an illegality or
jurisdictional error by any attribute so as to justify interference
therewith. However, award of compound interest is in no way in
conformity with the said provision.

6. As a sequel to what is discussed above, I while maintaining the

impugned judgment, would modify it to the extent of compound
interest. The respondents would thus be entitled to simple interest
at the rate of 6% from the date of taking possession to the, date the
compensation was deposited in the Court.

7. With the modification mentioned above, this petition is disposed

of accordingly.

H.B.T./40/P
Order accordingly.

Peshawar High Court

 2351

2010 M L D 1533

[Peshawar]

B ef o r e Ejaz Afzal Khan, J

FAZALULLAH and another---Petitioners

Versus

KHAN SHER and others---Respondents

Civil Revision No. 1349 of 2005, decided on 26th June, 2006.

West Pakistan Land Revenue Act (XVII of 1967)---

---Ss. 39, 42, 45 & 53---Specific Relief Act (I of 1877), Ss.8 &
42---Entries in the revenue record---Value---Suit for possession
and declaration---Appellate Court had upheld judgment and
decree passed by the Trial Court---No doubt, mere entries in the
Revenue papers in favour of a party would not create a right
unless those had been made in accordance with law, but where a
witness ap p eari n g on behalf of the plaintiff had admitted that
person in possession of the property in dispute was tenant on
behalf of the defendants and he refused to pay the produce; it was
imperative to examine said person to prove as to on whose behalf
he was cultivating the land---If examination of such person in the
court was not desirable, then the direction of the Appellate Court
given in first round of litigation for ascertaining the factum of
possession through commission should have been complied with---
Where neither was done, impugned findings could not be
maintained---Impugned judgment and decree were set aside and
case was sent to the Appellate Court for decision afresh in
accordance with law after examining the tenant or making inquiry
about the factum of possession through Commissioner.

Peshawar High Court

 2352
Khalid Khan for Petitioners.

Saifullah Khalid for Respondents.

Date of hearing: 26th June, 2006.

JUDGMENT

EJAZ AFZAL KHAN, J.---Petitioner through the instant

petition has assailed the judgment and decree dated 23-6-2005
of the learned Additional District Judge-III, Swabi whereby he
dismissed the appeal filed by the petitioner and upheld the
judgment and decree dated 9-4-2004 of the learned Civil
Judge, Swabi.

2. The main argument of the learned counsel for the petitioner

was that where in the first round of litigation a direction was
given by the learned Appellate Court in its judgment, dated 18-
12-1999 that the matter be decided afresh after recording
further evidence and appointment of local commissioner, the
trial Court could not have proceeded ahead without doing the
needful.

3. As against that, the learned counsel appearing on behalf of

the respondents contended that where entries in the name of
the predecessor in interest of the petitioner have not been made
in the revenue papers in accordance with law, they cannot be
given any weight, therefore, they were rightly ignored by the
Courts below. Question of possession, he added, will not
require any inquiry through local commissioner when the
entries in khasra girdawari prove that respondents are in
possession of the property in dispute through their tenant.

4. I have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

Peshawar High Court

 2353

5. No doubt, mere entries in the revenue papers in favour of a

party will not create a right unless they have been made in
accordance with law. But where a P.W. appearing on behalf of
the respondents, admitted that one Gulzada is in possession of
the property in dispute as a tenant on behalf of the petitioners
and he refused to pay the produce, it was rather imperative to
examine him to prove on whose behalf he was cultivating the
property. If in any case, his examination in the Court was not
desirable, then the direction of the learned appellate Court
given in the first round of litigation for ascertaining the factum
of possession through commissioner should have been
complied with. Where neither was done, I am afraid, the
impugned finding cannot be maintained.

6. For the reasons discussed above, this petition is allowed, the

impugned judgment and decree are set aside and the case is
sent to the learned District Judge, Swabi for decision afresh in
accordance with law after examining the tenant or making
inquiry about the factum of possession through commissioner
as directed earlier. The parties are directed to appear before the
learned District Judge on 15-7-2006. As it is an old case, it be
decided within three months.

H.B.T./187/P
Case remanded.

Peshawar High Court

 2354

2003 Y L R 2008

[Peshawar]

Before Ejaz Afzal Khan, J

NIZAM ULLAH---Petitioner

Versus

Mst. GOHAR TAJA and others---Respondents

Civil Revision No.97 of 2002, decided on 30th April, 2003.

Civil Procedure Code (V of 1908)---

----O. VI, R.17---Amendment of pleadings--Limitation---
Amendment in pleadings could not be refused if that was
emanating from the facts mentioned in the plaint especially when it
did not tend to change the cause of action and it was not motivated
by any mala fides---Where the cause of action did not change the
main substance and nature of the suit, the question of limitation
would become only the question of form rather than of substance.

Mst. Ghulam Bibi and others v. Sarsa and others PLD 1985 SC
345; Mst. Kalsoom (Fatma) v. Wazir Ali and 13 others 1991 MLD
1810 and Mst. Imam Hussain v. Sher Ali Shah and others 1994
SCMR 2293 ref.

Peshawar High Court

 2355
Muhammad Shoaib Khan for Petitioner.

Taj ud Din Khan for Respondent No. 1.

Muhammad Alam Khan for Respondents Nos. 2 to 4.

Date of hearing: 30th April, 2003.

JUDGMENT

The petitioner through the instant petition questioned the order

dated 17-11-2001 of the learned District Judge whereby he
dismissed the appeal filed by the petitioner and thus upheld the
order dated 13-6-2000 of the learned trial Court.

2. The learned counsel appearing on behalf of the petitioner by

placing reliance on the case of Mst. Ghulam Bibi and others v.
Sarsa and others (PLD 1985 SC 345) contended that the form of
suit would be immaterial if the facts mentioned therein disclose the
cause of action, and, therefore, it cannot constitute a ground for
rejection of plaint, moreso when on amendment can well be
sought.

3. As against that the learned counsel appearing on behalf of the

respondents contended that where the petitioner instead of
instituting a suit for a specific performance of contract instituted a
suit for declaration after the expiration of period of limitation
prescribed therefore, under section 113 of the Limitation Act, the
trial as well as the Appellate Court committed no legal or
jurisdiction error, therefore, the impugned orders merit no
interference. The learned counsel to support his contention placed
reliance on the case of Mst. Kalsoom (Fatma) v. Wazir Ali and 13
others (1991 MLD page 1810). The learned counsel by placing
reliance on the case of Mst. Imam Hussain v. Sher Ali Shah and

Peshawar High Court

 2356
others (1994 SCMR 2293) contended that belated attempt to seek
amendment in the plaint can be declined if the same was made
after the expiration of period of limitation prescribed for a suit for
the specific performance of contract.

4. I have gone through the record and carefully considered the

submission of the learned counsel for the parties.

5. It is by now well-settled that amendment in pleadings cannot be

refused it this is emanating from the facts mentioned in the plaint
especially when it does not tend to change the cause of action. No
doubt the petitioner primarily instituted a suit declaration but later
on when he came know that the form of suit was not proper and
that prayer for specific performance of contract was essential for
its success, he accordingly made an application for amendment in
plaint which could not have been refused by the Courts below
particularly when there was nothing on the record to show that it
was motivated by any mala fide and that when it emanated from
the same bundle of facts narrated in the plaint constituting the
cause of action in the suit. A similar proposition was dealt with in a
quite befitting manner by the Supreme Court in the case of Mst.
Ghulam Bibi v. Sarsa Khan (supra) whose relevant paragraph reads
as under:

"What has been stated above is, however, subject to a very

important condition that the nature of the suit insofar as its
cause of action is concerned is not changed by the
amendment whether it falls under the first part of Rule 17
or in the second part, because when the cause of action is
changed the suit itself would become different from the one
initially filed. Here this condition would not have been
contravened it the amendment had been allowed by the
High Court. The bundle of facts narrated in the plaint
which constitute the cause of action, as the application for
amendment shows, would not have suffered any material
change if the request would have been allowed. Apart from

Peshawar High Court

 2357
the consequential technical changes mutatis mutandis in the
context of the grounds stated in the application for
amendment, only two major amendments were sought to be
made in the plaint. They would have been firstly, the
change in the heading signifying the suit being for specific
performance etc. instead of declaration etc. and secondly,
mere was to be a similar change in the prayer paragraph.
These amendments would not have caused any
embarrassment to the respondents defendants either in
seeking and making similar amendments in their written
statement. The inconvenience caused to the respondents as
the provision itself visualizes is not only natural but would
ordinarily be occasioned in almost every case. That is why
the law visualizes the award of adequate compensation in
that, the amendment has to be allowed in such manner, and
on such terms as may be just. "

6. A perusal of the above quoted paragraph would reveal that

where the cause of action does not change the main substance and
nature of the suit, the question of limitation would become only the
question of form rather than of substance.

7. Since there is nothing on the record to show that application for

amendment of plaint, though belated, was motivated by the mala
fide no fetish of technicalities can be made to an extent that the
purpose behind them is relegated to oblivion and only they are
allowed to reign supreme, moreso when there only utility is to
provide a stepping stone rather than a stumbling block in the way
of administration of justice. It would, therefore, be a clear-cut case
of failure of exercise of jurisdiction. The judgments cited at the bar
by the learned counsel for the respondents in the light of foregoing
discussion, being distinguishable have no relevance to the case in
hand.

8. For the reasons discussed above, this petition is allowed, the

impugned orders are set aside, the amendment asked for in the
plaint is allowed and the case is sent back to the learned trial Court

Peshawar High Court

 2358
to proceed afresh in accordance with law. The parties are directed
to appear before the Court concerned on 13-5-2003.

H.B.T./822/P
Petition allowed.

Peshawar High Court

 2359

2003 Y L R 1901

[Peshawar]

Before Mian Shakirullah Jan, C.J. and Ejaz Afzal Khan, J

ADIL HUSSAIN ---Petitioner

Versus

THE STATE---Respondent

Jail Criminal Appeal No. 118 of 2001, heard on 19th February,

2003.

(a) Control of Narcotic Substances Act (XXV of 1997)---

----Ss. 6, 7, 8 & 9---Appreciation of evidence---Contradiction

appearing in testimony of prosecution witnesses with regard to
time of occurrence---One witness had stated that occurrence took
place at 8-30 p.m. and that no witness from the public was called
to witness the search as it was dark and no witness from the public
was available---According to the other witness occurrence took
place at 8 a.m. in the presence of several persons, but they were not
made witnesses as they refused to become witnesses---Such
contradictions could not be said to be the minor ones, but were too
glaring to be ignored---Difference of time of occurrence was not of
dawn and day, but was of night and day---Courts of law were
under no compulsion to accept such a contradictory statements
blindly and that too in a case involving capital punishment---Such
quality and quantity of evidence was not sufficient to hold the
accused guilty of the crime---Conviction and sentence recorded by
the Trial Court against the accused, were set aside, in
circumstances.

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

Peshawar High Court

 2360
----S. 410---Control of Narcotic Substances Act (XXV of 1997),
Ss. 6, 7, 8 & 9---Prison Rules, 1894, R.90---Appeal against
conviction and sentence---Delay, condonation of---Considerable
delay in filing appeal against judgment of the Trial Court occurred
because Superintendent of Jail did not inform the accused in
accordance with terms of R.90 of Prison Rules, 1894 on first
admission of the accused to the prison about the period within
which appeal against the order by which he was committed to
prison, was to be filed--- Where dismissal of appeal for any such
technical reason would cause injustice of the gravest form, delay
for any length of time had to be condoned---In case Superintendent
of Jail, in the present, case, having failed to perform his statutory
duty as was envisaged in R.90 of Prison Rules, 1894, delay was
condoned.

Ziaur Rehman v. The State 2001 SCMR 1405 ref.

Abdul Fayyaz Khan for Petitioner.

Muhammad Ejaz Khan for the State.

Date of hearing: 19th February, 2003.

JUDGMENT

EJAZ AFZAL KHAN, J.--On 11-6-1996, Muhammad Arshad

Khan, F.I.O., ANF alongwith his staff was present in Cantt. area at
Peshawar on the direction of Regional Director for checking the
hotels and narcotic dealers therein. On a spy information he
alongwith his staff proceeded to Sindbad Hotel, Peshawar and
fenced a picket for the purpose. In the meantime Adil Hussain,
appellant herein, and Sharafat Hussain, his co-accused came out of
the hotel. When suspicion necessitated their search, it led to the
recovery of 200 grams of heroin from the possession of the former
which culminated in the registration of a case under sections 6, 7, 8
and 9 under the Control of Narcotic Substances Ordinance (LIX of
1996), vide F.I.R. No.7 dated 11-6-1996, Police Station Narcotic
Force, Peshawar.

Peshawar High Court

 2361
2. After arrest, interrogation and completion of necessary
investigation, the appellant was sent to the Court of learned Judge
Special Court, Peshawar for trial who on its conclusion sentenced
him to imprisonment for life with a fine of Rs. One million or to
default to further undergo R.I. for 5 years with the benefit of
section 382-B, Cr.P.C., vide his judgment dated 27-8-1998, hence
this appeal.

3. Before discussing' the `merits of the case, the learned counsel

appearing on behalf of the appellant contended that though the
appeal has been filed after the expiration of period prescribed
therefore nonetheless, this delay is condonable firstly because the
Superintendent, Jail did not inform the appellant in accordance
with the terms of rule 90 of the Prison Rules, 1894, on his first
admission to the Prison of the period within which an appeal from
the order by which he was committed to prison, was to be filed.
The learned counsel by placing reliance on the case of Ziaur
Rehman v. The State 2001 SCMR 1405 contended that the delay of
even years can be condoned where the Court comes to the
conclusion that the dismissal of appeal for such a technical reason
would cause grave injustice to the accused. The learned counsel
next contended that the evidence on the record does not inspire
confidence as despite the availability of independent witnesses no
one was associated to witness it, therefore, the learned trial Court
did not appreciate the evidence on the record in accordance with
the time honoured principles laid down by the superior Courts of
the country from time to time for appraisal of evidence in such-like
cases.

4. As against that, the leaned counsel appearing on behalf of the

State contended that the evidence on the record is by all means
sufficient to bring guilt home to the appellant as such the learned
trial Court rightly convicted the appellant.

5. We have gone through the record and carefully considered the

submissions of the learned counsel for the parties.

Peshawar High Court

 2362
6. Before discussing the validity and viability of the arguments
advanced by the learned counsel for the appellant for condonation
of delay and maintainability of the instant appeal, we would like to
discuss the merits of the case, because if no case for interference is
made outs it would be just an exercise in futility to attend to the
arguments so advanced about the condonation of delay.

7. A perusal of statement of P.W.3 reveals that the occurrence in

this case took place at 8-30 p.m. According to the testimony of this
witness no witness from the public was called to witness the search
as it was dark and no witness from the public was available. But
according to the P.W.5 the occurrence took place at 8 a.m. in the
presence of several persons but they were not made witness as they
refused to become so. It cannot be cavilled with that minor
discrepancies and even contradictions are to be ignored because
those are apt to occur even in the statements of the witnesses who
are perfectly honest because of difference in their power of
observation, retention and reproduction or, because of any other
lapse which can be termed as human. But the contradictions of the
magnitude highlighted above are not of a nature as can be ignored
in a case involving capital punishment. It would be misnomer to
call them minor contradictions. These, contradictions to say the
least, are too glaring to be ignored, moreso when acceptance of one
statement would necessitate the rejection of another. This
difference is not of dawn and day but of night and day and as such
is incapable of being reconciled with each other. Whether P. W. 3
spoke the truth or P. W.5 spoke the truth is not capable of being
determined from this record particularly when P.W. Naib Subaidar
Saleem has been abandoned as being unnecessary.

8. Whether the conviction and sentence of imprisonment for life

with a fine of Rs. One million can be sustained on such a quality
and quantity of evidence. The answer to this question would be
certainly in the negative because the Courts of law are under no
compulsion to accept such a contradictory statement blindly and
uncritically that too in a case involving capital punishment and it
was probably in view of this important aspect that the Prophet
Muhammad (peace be upon him), advised the Qaziz to ward off

Peshawar High Court

 2363
punishment with doubt and it is in this context that acquittal of ten
guilty persons is considered better than the conviction of a person
who is innocent by almost all the good laws of the world.

9. No doubt the principle of falsus in uno falsus in omnibus has

been discarded since long by the superior Courts of the country
and instead the principle of beating out the grain from the chaff has
since long been the rule for appreciation case as it is not possible
for us to decide as to whose statement is based on truth and who
has spoken lie, therefor, we. feel constrained to hold that this
quality and quantity of evidence is not sufficient by stretch of
imagination to hold the appellant guilty of the crime.

10. Now coming to the argument addressed about the condonation

of delay and maintainability of appeal, suffice it to say that where
dismissal of appeal for any such technical reason would cause the
injustice of the gravest form, delay for any length of time as it was
held in the case of Ziaur Rehman v. The State (supra) has to be
condoned especially when there is nothing on the record of this
case that Superintendent Jail performed his Statutory duty as is
envisaged in rule 90 of the Prison Rules by informing the prisoner
regarding the period within which an appeal was to be preferred
against the order.

11. For the reasons discussed above, we allow this appeal, set aside
the conviction and, sentence recorded by the trial Court and direct
the release of the appellant forthwith, if not required in any other
case.

H.B.T./752/P
Appeal allowed.

Peshawar High Court

 2364
2004 P Cr. L J 813

[Peshawar]

Before Ejaz Afzal Khan and Fazlur Rehman Khan, JJ

KAMAL HUSSAIN ---Appellant

versus

THE STATE and another---Respondents

Criminal Appeals Nos.176, 174 of 1999 and Criminal Revision

No.Nil, decided on 4th December, 2003.

Penal Code (XL.V of 1860)---

----S. 302(b)-Appreciation of evidence---Presence of eve-witnesses

on the spot at the crucial moments being highly doubtful and their
testimony having been belied by the medical evidence, the same
was neither credible nor reliable---Injured witnesses were withheld
by the prosecution whose evidence was essential rather
indispensable in view of the inconsistent testimony of the partisan
evidence of prosecution witnesses and their non-production had led
to adverse inference against the case of prosecution---Bullet
recovered from the dead body of the deceased was not sent to
Serologist to ascertain whether it was stained with human blood of
the same group and it, thus, was not established that it was in fact
recovered from the dead body of the deceased---Said bullet was
also dispatched to the Ballistic Expert twice with two different
seals---Positive report of the Ballistic Expert, therefore, did not
improve the prosecution case that the said bullet was fired from the
Kalashnikov recovered from the accused---Accused was acquitted
in circumstances.

Umar Hayat v. The State PLD 1995 SC 526; Abdul Khaliq v. The
State 1996 SC 1553; Muhammad Iqbal v. Abid Hussain alias
Mithu and others 1994 SCMR 1928; Qadir Bakhsh v. The State

Peshawar High Court

 2365
PLD 2002 Quetta 97; Abdul Ghafoor v. The State 2000 SCMR
919; Ghaus Muhammad alias Ghausia and another v. The State
1979 SCMR 579; Ghulamullah and another v. The State 1996
SCMR 1887; Mardan Ali v. Gulilstan and others 1980 SCMR 889;
Saindad and others v. The State 1972 SCMR 74 and Saeedullah
Khan v. The State 1986 SCMR 1027 ref.

Mirza Abdullah Jan and Mujtaba Ali Hamdani for Appellant.

Muhammad Sardar Khan, Asadullah Khan Chamkani and Ishtiaq

Ibrahim for the Complainant.

Malik Ahmad Jan, D.A.-G for the State.

Dates of hearing; 2nd and 4th December, 2003.

Peshawar High Court

 2366

2004 P Cr. L J 1146

[Peshawar]

Before Ejaz Afzal Khan and Fazlur Rehman Khan, JJ

SIKANDAR SHAH---Appellant

Versus

DIN MUHAMMAD and 2 others---Respondents

Criminal Appeals Nos.9 and 11 of 2003, decided on 8th April,

2003.

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

----Ss. 365-A/109/148/149---Anti-Terrorism Act (XXVII of 1997),

S.7--Appreciation of evidence---Entire affair from the very
inception seemed to be a `Drama' rather than an actual
occurrence---When alleged abductee himself neither charged nor
expressed suspicion against anybody, what was that extraordinary
thing for which police continued its pursuit to trace and track down
the person responsible for commission of alleged crime---Over
excitement of police had led them to put crime on a person/accused
whose participation in the crime was a physical impossibility when
according to confessional statement recorded by Magistrate
accused had been in the police custody during the period of
occurrence---Reasons justifying suspicion as to the complicity of
accused in the crime wee not known---Such action of police was
nothing, but a wild goose chase---Prosecution ,was bound to
explain circumstances justifying suspicion even though person
suspected turned out to be an actual culprit particularly when
charge against accused emanated from no other source except his
confessional statement---When evidence in the behalf was

Peshawar High Court

 2367
woefully lacking, only inference which could reasonably be drawn
was that Investigating Officers after failing to find out actual
culprit, found a scapegoat, in, accused to show their performance
and efficiency---Identification of accused during identification
parade, in no way would improve case of prosecution when
prosecution witness had opportunity of seeing accused before such
exercise was held---Story as to alleged ransom also appeared to be
no better than cock and bull story ---Confessional statement of
accused which was the only evidence allegedly connecting accused
with crime, also did not appear to be free from the taint of torture,
duress and manipulation as accused was again taken into custody
and alleged confessional statement was recorded after his
prolonged custody of 17 days---Ocular account of occurrence did
not tend to incriminate any of accused persons, besides the fact that
it was bristling with doubts and infirmities---Prosecution having
failed to prove the guilt of accused beyond any shadow of doubt,
conviction and sentence recorded against accused by Trial Court,
were set aside and they were directed to be released.

Raz Muhammad v. The State PLD 2002 SC 56 ref.

Abdul Latif Khan Baloch for Appellant.

Shaukat Hayat Khan Khakwani, Dy. A.-G. for the State.

Respondents Nos.1 and 2 in person.

Date of hearing: 8th April, 2003.

Peshawar High Court

 2368

2004 P Cr. L J 1209

[Peshawar]

Before Ejaz Afzal Khan, J

SAMIULLAH alias SAMI---Appellant

Versus

THE STATE---Respondent

Criminal Appeal No.20 of 2003, decided on 10th October, 2003.

Penal Code (XLV of 1860)---

----S. 377---Offence of Zina (Enforcement of Hudood) Ordinance

(VII of 1979), S.12---Appreciation of evidence ---Res
gestae---Occurrence was not witnessed by any of the prosecution
witnesses---Even mother and uncle of victim child, who appeared
as witnesses, had not witnessed occurrence---Whatever was stated
by witnesses in the Court was based on account narrated by the
victim soon after the occurrence---Victim though appeared in
witness-box, but he did not depose about incident because Trial
Court after making preliminary query to test his capacity as a
witness, declared him unfit to stand the test of cross-examination
on account of his tender age---Court, in circumstances was left
only with evidence of res gestae---Circumstances, facts and
declarations which spontaneously grow out of main fact and serve
to illustrate its character being res gestae, were admissible
provided they were so contemporaneous with main fact as to
exclude the possibility of deliberation and fabrication- --Such
declarations being part of res gestae, were admissible in evidence
even though declarant was incompetent to testify or was not
produced in the Court altogether---Spontaneous declaration of a
child too young to be permitted to testify, could be admissible as
part of res gestae---Such un-sworn declaration was to be treated at

Peshawar High Court

 2369
par with sworn declaration---Conviction on the basis of res gestae
alone under no circumstances, could be recorded without
corroboration---Prosecution having failed to prove case against
accused beyond any shadow of doubt, conviction and sentence
recorded by Trial Court, were set aside and he was set free.

Muhammad Aslam Shah v. The State 1993 PCr.LJ 704;

Sameeullah Khan v. State 2000 PCr.LJ 769; Muhammad Din and 2
others v. The State 1988 PCr.LJ 238; Abdullah Shah v. The State
1968 SCMR 852; Umar v. The State 1969 SCMR 600; Swal Das
v. State of Bihar AIR 1974 SC 778; Faqir Muhammad v. The State
PLD 1971 Lah. 929 and Muhammad Sugal Mamasan Rer Alalah v.
The King AIR (33) 1946 PC 3 ref.

Saifur Rehman Khan for Appellant.

Shaukat Hayat Khan. D.A.-G. for the State.

Ghazanfar Abbas Sandala for the Complainant.

Date of hearing: 10th October, 2003.

Peshawar High Court

 2370
2004 P Cr. L J 1239

[Peshawar]

Before Ejaz Afzal Khan and Fazlur Rehman Khan, JJ

JAMSHED alias JAMMI---Appellant

Versus

THE STATE and others---Respondents

Criminal Appeal No. 12 of 2001, decided on 15h April, 2004.

(a) Penal Code (XLV of 1860)---

----S. 302---Appreciation- of evidence---None of the witnesses

charged accused for having committed crime, except one and that
too in his cross-examination made by counsel for prosecution after
he was declared hostile---No doubt a witness who had been
declared hostile, would not become unworthy of reliance and his
evidence could not be brushed aside if found true and credible, but
since said witness had spoken in two different voices and two
different tones his evidence had to be assessed with much more
care and circumspection---No independent or unimpeachable
evidence being on record which could tend to lend support to the
testimony of hostile witness, his testimony in circumstances of
case could not be-considered for holding accused guilty of offence
he was charged with---F.I.R. in the case having been recorded after
preliminary investigation would lose its sanctity and even
probative worth because where F.I.R. was recorded after
preliminary investigation, it, could neither be treated sacrosanct
nor authentic--Prosecution witnesses neither were natural nor
probable nor their presence at the crucial time appealed to
reason---Alleged confessional statement of accused was neither
voluntary nor the Magistrate who recorded same had fulfilled
necessary formalities---Even otherwise alleged confessional
statement being inconsistent with prosecution version could not be

Peshawar High Court

 2371
held either voluntary or true---Not safe to record conviction on
such piece of evidence---Prosecution having failed to bring home
guilt to accused beyond any shadow of doubt, his conviction and
sentence were set aside and he was acquitted of charge.

Mashal Khan and others v. The State 1997 PCr.LJ 478; Baz Gul v.
The State 2001 PCr.LJ 1442; Muhammad Israr Khan v. The State
2002 SD 512; Mst. Robina Bibi v. The State 2001 SCMR 1914;
State v. Abdul Ghafar 1996 SCMR 678; Raz Muhammad v. The
State PLD 2002 SC 56 ref.

(b) Qanun-e-Shahadat (10 of 1984)---

----Art. 150---Penal Code (XLV of 1860), S.302---Hostile

witness--Witness who had been declared hostile, would not
become unworthy of reliance and his evidence could not be
brushed aside if found true and credible, but where he had spoken
in two different voices and in two different tones his evidence had
to be assessed with much greater care and circumspection---May
be he was telling truth when exonerating accused or may be he was
telling truth when charging him---Only those voices and tones of
witnesses could be considered worthy of reliance which were
supported by sources essentially unimpeachable because one
tainted piece of evidence could not corroborate another tainted
piece of evidence.

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

---S. 154---F.I.R.---Authenticity of---F.I.R. being the basic

document in criminal case was vested with much greater sanctity,
but where it was recorded after preliminary investigation, it would
lose its sanctity and probate worth and would become a suspect
document rather than one giving a natural, spontaneous and
straightforward account of occurrence---F.I.R. recorded after
preliminary investigation, could not be treated either sacrosanct or
authentic.

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

Peshawar High Court

 2372
----S. 164---Confessional statement---Voluntariness of---Record
should contain a full account of steps taken to ensure the
voluntariness of confession because purpose behind preliminaries
to recording a confession was not merely to satisfy the Magistrate,
but also the Court which would hear the case---Where neither the
record nor the statement of Magistrate recorded in the Court had
shown that accused was given sufficient time to compose himself,
it could not be held to be voluntary statement.

State v. Muhammad Naseer 1993 SCMR 1822 and Ghulam

Muhammad v. The State PLD 1971 Lah. 850 ref.

Saifur Rehman for Appellant.

Rajab Ali for the State.

Allah Nawaz Khan for the Complainant.

Date of hearing: 10th April, 2003.

Peshawar High Court

 2373

2005 P Cr. L J 739

[Peshawar]

Before Ejaz Afzal Khan and Muhammad Raza Khan, JJ

ZAREEN SHAH---Appellant

versus

THE STATE and 4 others---Respondents

Criminal Appeal No.113 with Murder Reference No.12 of 2004,

decided on 17th January, 2005.

Penal Code (XLV of 1860)---

----Ss. 302(b), 392 & 449---Appreciation of evidence---Incident

was blind and was not witnessed by anyone---Prosecution to prove
its case, mainly relied on circumstantial evidence which consisted
of recovery of shotgun, blood-stained lace of accused, golden
ornament, positive reports of Forensic Science Laboratory and
statement of accused---Accused in answer to a question put by
Magistrate before recording his confessional statement had clearly
stated that he was tortured and beaten by police---Confessional
statement so made could not be termed as voluntary---Alleged
confessional statement of accused was neither voluntary, nor rang
true nor fitted in with surrounding circumstances---Recovery of
shotgun in the manner it was alleged by prosecution also appeared
to be doubtful and could not be of much consequence when
confessional statement which was bed-rock of prosecution case
stood eroded notwithstanding positive report of Forensic Science
Laboratory, when manipulation of empties at the hands of police
was too common a phenomenon and they despite proving the use
of shotgun in the crime, did not prove that it was used by accused--

Peshawar High Court

 2374
-Recovery of golden ornaments would also do little to improve the
case of prosecution firstly because there was no allegation that
ornaments had been stolen from the house of the deceased;
secondly because no proof had been brought on the record to show
that they belonged to deceased and thirdly because no
identification parade was held to establish their origin or
ownership---Recovery of blood-stained lace too would prove
nothing against accused when grouping of blood had not been
done---Circumstantial evidence could only form basis for
conviction when it was incompatible with innocence of accused on
one hand and incapable of explanation on any other reasonable
hypothesis than that of his guilt on the other, which was not the
case---Charge against accused having not been proved beyond any
shadow of doubt, conviction and sentence recorded by Trial Court
against accused were set aside and he was acquitted of charge and
was set free.

Muhammad Riaz and 3 others v. The State PLD 1994 Pesh.

102; Murtaza and 2 others v. The State and another1996 PCr.LJ
358; Gul Tiaz Khan v. The State PLD 2004 Pesh. 299; Noor
Ahmad v. The State and another 2004 SCMR 796 and Khadim
Hussain v. The State 2004 PCr.LJ 1102 ref.

Sanaullah Khan Gandapur for Appellant.

Saleemullah Khan Ranazai for the State.

Muhammad Iqbal Chumcha for the Complainant.

Date of hearing: 17th January, 2005.

JUDGMENT

EJAZ AFZAL KHAN, J.--- On 2-4-2000, Ghulam Murtaza

Shah was informed by one Dr. Bashir that the house of his uncle
Ghulam Abbas was locked from inside and none was responding

Peshawar High Court

 2375
therefrom despite consistent knocking. He accordingly went
towards the house of the deceased, entered it by climbing over the
wall and after entering one of its rooms, saw his uncle, his wife
Mst. Nasreen and his sister-in-law Mst. Amna, lying dead. His
uncle and Mst. Amna were naked as their ‘Shalwars’ were off. On
report of the incident though a case under section 302, P.P.C. was
registered against unknown persons, vide F.I.R. No.105, dated 2-4-
2000, Police Station Saddar D.I. Khan, yet one Jhangir alias
Jhanga and one Iqbal Hussain were suspected to have a hand in the
commission of this crime because of strained relations.

2. The Investigating Officer after recording the report, preparing

the injury sheets and inquest reports of the deceased and
dispatching their dead bodies to the Hospital for post-mortem
examination secured blood-stained earth from the places of the
deceased, 4 empties of .12 bore shotgun having smell of
fresh discharge, 5 pellets of the same bore from beneath the
dead bodies, a double-barrel shotgun belonging to the deceased
containing an empty and a missed cartridge, a plastic bag
containing chillies, a blood-stained key and sealed them into
parcel.

3. On 6-4-2000 Zarin Shah, appellant herein, on being associated

with the investigation on the basis of suspicion, led the
Investigating Officer to the recovery of a double-barrel shotgun
which he allegedly concealed in the house of Ghulam Rasool on
the following day of the occurrence. The said shotgun along with
the empties was sent to the F.S.L. for opinion. When according to
the report of F.S.L., empties matched with the shotgun, he was
arrested again.

4. In the second round of the interrogation he led to the recovery

of his P.T. shoes one of whose laces was stained with blood and
the ornaments allegedly stolen from the house of the deceased.
When he also desired to confess his guilt, he was produced before
a Judicial Magistrate who accordingly recorded his confessional
statement.

Peshawar High Court

 2376
5. After completion of the investigation, the appellant was sent to
the Court of the learned Additional Sessions Judge for trial who on
its conclusion sentenced him to imprisonment for life with a fine of
Rs.25,000 or in default to undergo 5 years’ R.I. with a fine of
Rs.25,000 or in default to further undergo one year’s S.I. under
section 392, P.P.C. and to death on three counts under section
302(b), P.P.C., vide her judgment dated 18-9-2004, hence this
appeal by the appellant and murder reference for the confirmation
of death sentence which are disposed of by this single judgment.

6. The learned counsel for the appellant by referring to the

questionaire of the confessional statement contended that where
the appellant admitted that he was subjected to torture and beaten
by the police, his confessional statement cannot be held to be
voluntary. He next argued that where the confessional statement is
not corroborated by the medical evidence and surrounding
circumstances, it cannot be held to be true on any count. The
learned counsel next urged that where the confessional statement
was recorded on 1-5-2000 and the certificate under section 364 of
the Cr.P.C. was issued on the following day as is evident from the
dates mentioned therein, it cannot never be said that it was
recorded in accordance with the requirements of law that too when
the learned Judicial Magistrate did not take care even to scratch the
unnecessary column of its proforma. The learned counsel to
support his contention relied on the case of Muhammad Riaz and 3
others v. The State PLD 1994 Pesh. 102, Murtaza and 2 others v.
The State and another1996 PCr.LJ 358 (Peshawar) and Gul Tiaz
Khan v. The State PLD 2004 Pesh. 299. The learned counsel by
concluding his arguments submitted that where recovery was
effected at the instance of the appellant before he could be accused,
it being outside the scope of Article 40 of Qanun-e-Shahadat,
cannot be of any significance to the prosecution.

7. As against that, the learned State Counsel assisted by the

learned counsel for the complainant, argued that where recovery of
incriminating material goes along way to corroborate the
confessional statement which besides being voluntary is true, the
charge against the appellant stands proved to the hilt; that the

Peshawar High Court

 2377
learned trial Court by relying on the confessional statement of the
accused has rightly convicted and sentenced the appellant and that
the impugned judgment being free from any infirmity merits no
interference. The learned counsel to support his contention placed
reliance on the cases of Noor Ahmad v. The State and another
2004 SCMR 796 and Khadim Hussain v. The State 2004 PCr.LJ
1102 (Federal Shariat Court).

8. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

9. Since the incident is blind and has not been witnessed by

anyone, and prosecution to prove its case, mainly relied on
circumstantial evidence which consists in recovery of shotgun,
blood-stained lace, golden ornaments, positive reports of F.S.L.
and the confessional statement of the appellant.

10. The evidence of first and foremost importance in this case is

that of confessional statement. Is it voluntary? Does it ring true and
fit in with the surrounding circumstances are the questions having
tremendous bearing on the fate of this case.

11. The record reveals that the appellant led to the discovery of
shotgun on 6-4-2000 before he could be charged by anyone for his
involvement in the crime. Similarly, he led to the discovery of all
the incriminating articles so-called including ornaments and P.T.
shoes with blood-stained lace on 27-4-2000 and thereby owned
and admitted his crime. When desired recoveries as alleged by the
prosecution were made at the instance of the appellant and the
crime was admitted by him, why was he retained in police custody
till 1-5-2000? The only reasonable inference to be drawn in the
circumstances of the case would be that this period which indeed
commenced from 6-4-2000 was used for inducing him to make a
confessional statement and thus, the story of his re-arrest on 26-4-
2000 appears to be more of a ‘Darama’ than an actual fact. This
inference is further supported when he in answer to a question put
by the Magistrate before recording his confessional statement
stated in no uncertain terms that he was tortured and beaten by the

Peshawar High Court

 2378
police. When it is evident from the attending circumstances in
general and answer of the appellant in particular that he was
tortured and beaten, the confessional statement so made may be
anything except voluntary.

12. A perusal of the confessional statement would show that the

purpose behind the visit of the appellant to the house of the
deceased was to seek his elderly intervention for persuading
complainant Murtaza to sell his house to him and not to a stranger.
If so, there was no occasion for the appellant to go there at night,
that too, with a shotgun in his hand. How that mission which was
essentially peaceful could take an un-though of turn. If for one
reason or another, the said object was not achieved, there was no
reason for killing the deceased, his wife and sister-in-law and
disgracing them in the way it was done. It in all probabilities
appears to be a crime committed by a man having implacable
vengeance against the deceased. The fact that deceased Abbas
Shah married as many as six wives and divorced most of them,
may assume relevance in this background. What for his sister-in-
law was staying in his house is a question which may unravel
another mystery. The fact that why the deceased Abbas Shah was
having strained relations with his in-laws may provide another
angle of vision for looking at this unfortunate episode. The
mystery takes yet another mystical turn when swabs taken from the
vagina of deceased Mst. Amna were found stained with semen.

13. Where did the incised wound found on the right arm of the
deceased come from which according to the medical evidence
could be caused by an axe or dagger while according to the
confessional statement of the appellant, he was not armed with
either nor any of them was used by him in the commission of the
crime. What were the circumstances which necessitated the use of
the shotgun by the deceased wherein an empty and missed
cartridge were found at the time of its recovery from the spot. Who
did all this has not altogether been adverted to in the confessional
statement. It thus, follows that the confessional statement is neither
voluntary, nor rings true nor fits in with the surrounding
circumstances of the case, therefore, it is not worthy of reliance.

Peshawar High Court

 2379
The judgments cited by the learned counsel for the appellant at the
bar may be referred with advantage.

14. Recovery of shotgun in the manner it is alleged by the

prosecution also appears to be doubtful and cannot be of much
consequence when the confessional statement which is bed-rock of
the prosecution stands eroded notwithstanding positive report of
F.S.L., when manipulation of empties at the hands of police is too
common a phenomenon and they despite proving the use of the
shotgun in the crime, do not prove that it was used by the
appellant.

15. Recovery of golden ornaments will also do little to improve

the case of the prosecution firstly because there is no allegation
that the ornaments have been stolen from the house of the
deceased, secondly because no proof has been brought on the
record to show that they belonged to the deceased and thirdly
because no identification parade was held to establish their origin
or ownership.

16. Recovery of blood-stained lace too will prove nothing against

the appellant when grouping of the blood has not been done and a
stain of human blood can be produced by a prick. Needless to say
that circumstantial evidence can only form basis for conviction
when it is incompatible with the innocence of the accused on the
one hand and incapable of explanation on any other reasonable
hypothesis than that of his guilt on the other which is not the case
here. The judgments cited at the bar by the learned State Counsel
being distinguishable have no relevance to the case in hand.

17. The nutshell of the above discussion is that the charge

against the appellant has not been proved beyond any shadow of
reasonable doubt, therefore, we do not feel persuaded to maintain
his conviction.

18. For the reasons discussed above, this appeal is allowed,

conviction and sentence recorded by the learned trial Court are set
aside and the appellant is acquitted of the charge. He be set free

Peshawar High Court

 2380
forthwith, if not required in any other case. Murder reference is
thus, answered in negative.

H.B.T./329/P Appeal allowed.

Peshawar High Court

 2381

2005 Y L R 2514

[Peshawar]

Before Ejaz Afzal Khan and Muhammad Raza Khan, JJ

ZAKIRULLAH and another---Appellants

Versus

THE STATE and 4 others---Respondents

Criminal Appeal No.14 of 2005, decided on 31st May, 2005.

(a) Penal Code (XLVI of 1860)----

--Ss. 302/324/148/149-Appreciation of evidence---Departure

from original story by A complainant and prosecution
witnesses---Effect---Complainant in F.I.R. charge five persons
for indiscriminate firing resulting in death of deceased and
injuries to' prosecution witnesses and a passerby---Complainant
in examination-in-chief owned F.I.R. by affirming its contents
to be true--Complainant in Court made an outright departure
from original story by charging only two accused for causing
death of deceased and injuries to prosecution witness and a
passerby---Injured prosecution witness made an outright
departure from original story by modifying same and dwindling
number of assailants---Where prosecution witnesses furnishing
ocular account had perjured themselves and compromised their
integrity by making an outright departure from original version,
no reliance much less implicit could be placed on their

Peshawar High Court

 2382
testimony, notwithstanding alleged recovery of crime weapon
from accused---Recovery of crime weapon could at best, be
used as corroborative and not evidence of charge---
Circumstances giving rise to such recovery did not appeal to a
prudent mind---Conviction of accused could not be maintained
on such quality of evidence inspite of its quantity---Accused
was acquitted of the charge in circumstances.

(b) Criminal trial-----

----Perjury by prosecution witnesses---Effect---Where

prosecution witnesses furnishing ocular version perjured
themselves and compromised their integrity by making an
outright departure from original version, then no reliance much
less implicit could be pleaded on their testimony despite alleged
recovery of crime weapon from possession of accused---Such
recovery could, at best, be used as corroborative evidence, but
not as evidence of charge.

(c) Criminal trial---

----Crime weapon, recovery of-Evidentiary value---Such

recovery could, at best, be used as corroborative evidence, but
not as evidence of charge.

Zafar Abbas Zaidi for Appellants.

Peshawar High Court

 2383
Muhammad Yaqoob Khan Merwat and Sanaullah Khan
Gandapur for the State.

Date of hearing: 31st May, 2005.

JUDGMENT

EJAZ AFZAL KHAN, J.---The version as disclosed in the

F.I.R. is that on the day of occurrence Noshad Ali, complainant,
Shamraz Khan, deceased and Aziz Khan, injured P.W. were
sitting on a bench lying on the side of Bannu Kohat Road, that a
Datsun Pickup came and stopped near them, that Zakirullah
Nazirullah, appellants herein, Piao Khan, Rahim Khan and
Murad Khan, acquitted co-accused, duly armed with their
respective weaspons alighted there from and started
indiscriminate firing which resulted in the death of the deceased
then alive and injuries to Aziz Khan, P.W. and a passerby while
the complainant escaped unhurt. The motive for the occurrence
was previous blood feud. The incident was reported which
culminated in the registration of a case against the appellants
and their acquitted co-accused under sections 302/324/148/149,
P.P.C. vide F.I.R. No.79 dated 29-10-2003, Police Station,
Domel.

2. On completion of investigation and arrest of the appellants,

they were forwarded to the Court of the learned Additional
Sessions Judge-V, Bannu for trial who on its conclusion
sentenced appellant Zakirullah to undergo imprisonment for life
under section 302(b) of the P.P.C. and to pay Rs.50,000 as
compensation to the legal heirs of the deceased under section

Peshawar High Court

 2384
544-A, Cr.P.C. or in default to undergo R.I. for one year, 5
years', R.I. under section 324/34, P.P.C. and R.I. for one year
under section 148, P.P.C. and sentenced appellant Nazirullah to
R.I. for 10 years under section 302(c), P.P.C. and to pay
Rs.50,000 as compensation to the legal heirs of the deceased
under section 544-A, Cr.P.C. or in default to undergo R.I. for
one year, 5 years' R.I. under section 324, P.P.C. and one year's
R.I. under section 148 of the P.P.C. vide judgment dated 22-2-
2005, hence this appeal and criminal revision for enhancement
of sentence which are disposed of by this single judgment.

3. It was argued by the learned counsel for the appellants that in

the F.I.R. as many as 5 persons were charged for having fired
effective shots at the deceased, the injured P.W. and a passerby
but in the statements recorded in the Court an outright departure
was made by assigning the role of firing effective shots only to
the appellants, therefore, no reliance could be placed on the
testimony of such witness while recording conviction in a case
involving capital punishment. He next submitted that statement
of the injured P.W. too is not worthy of reliance when he also
perjured himself by modifying the original version as set forth
in his police statement.

4. As against that the learned counsel appearing on behalf of the

State assisted by the learned counsel for the complainant, argued
that though the charge was exaggerated in the F.I.R. but it will
not militate against the veracity of the P.Ws. when they have
charged only those in their statements recorded in the Court,
who were actually responsible for enacting this tragedy
therefore, interference with the impugned judgment on this
score would be uncalled for, particularly when the principle of
falsus in uno falsus in omni bus does not hold the field ever
since the advent of 1970.

Peshawar High Court

 2385

5. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

6. A perusal of the F.I.R. would reveal that the complainant

charged as many as five persons for having made indiscriminate
firing resulting in the death of the deceased, and injuries to the
P.W. and a passerby. But he made an outright departure
therefrom in his statement recorded in the Court by charging
only the appellants for causing the death of the deceased and
injuries to the P.W. and a passerby. The worst of it is that he
owned the F.I.R. by affirming its contents to be correct while
being examined-in-chief in the trial Court. The testimony of the
injured P.W. also stands on the same plank and pedestal who too
made an outright departure from the original story by modifying
it and dwindling the number of the assailants in his statement
recorded in the Court.

7. Where the P.W.s furnishing the ocular account perjured

themselves and compromised their integrity by making an
outright departure from the original version, no reliance much
less implicit can be placed on their testimony notwithstanding
the alleged recovery of .222 bore assault rifle from the
possession of the appellants, firstly because it can, at its best, be
used as corroborative and not evidence of the charge and
secondly because it appears to have been made in the
circumstances which do not appeal to a prudent mind.
Therefore, it will not be safe to maintain the conviction of the
appellants on this quality of evidence in spite of its quantity.

Peshawar High Court

 2386
8. For the reasons discussed above, this appeal is allowed, the
conviction and sentence recorded by the learned trial Court are
set aside and the appellants are acquitted of the charge. They be
set free forthwith if not required in any other case.

S.A.K./460/P
Appeal accepted.

PLJ 2001 Cr.C. (Peshawar) 782 (DB)

Present: SARDAR MUHAMMAD RAZA KHAN, AND EJAZ
AFZAL KHAN, J. MUHAMMAD ULLAH-
Appellant

versus

STATE-Respondent
Jail Crl. Appeal No. 370 of 1997, decided on
24.4.2001.

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

—S. 302--To prove motive, most important witness was wife of

appellant whose ill-health was allegedly wrought by sinister
acts of deceased and other important witness was Doctor
who on examining her pathological conditions attributed her
ill-health to acts of sexual intercourse with her in her chiUl-
hood-Strangely enough, neither wife was examined in Court nor an
efforts was made by Investigating Officer to examine Doctor
opining about cause of her ill-health—In absence of this evidence
siorv about motive appears to be false and fictional—Story

Peshawar High Court

 2387
narrated by P.W. when put in crucible of probabilities also does
not ring true and natural in circumstances of case—How could he
decided about direction of repon of fire on hearing it from a distance
of 2/3 kilometers from place where he was standing at relevant
time and how could he choose right path without being man of
extra-ordinary mental faculties and un-canny perception, are
unanswered questions which render las testimony unworthy of
trust and belief—Prosecution version, toconclude, seems t.o be a
brainchild of Investigating Officer who instead of making un effort to
explore and unearth actual facts and circumstances leading
to commission of crime and person behind it, found a figure
head in appellant, for an eye-wash—When no direct evidence is
forth-coming to connect appellant with crime and likewise
when there is t ; u circumstantial evidence of specie which is
incompatible \\it.h innocence of appellant. Court, lias no alternative
but to extend benefit of doubt-Appeal JkA'v.;-- [Pp. 7S--I & 7Sf>"; A
to I) Mr. L>/,r.';,-:j l:ji\:!.:!n. Au\oc-te for Appellant. Mr. Fukhrul Islam,
Law Officer U.i State. Date of hearing : 24.4.2001.

JUDGMENT

Ejuz Afzal Khan, J.--Muhammad Ullah son of Adbulluh resident of

Jehangira Distt. Swabi having been charged under Section 302 PPC. VVJc:
FIR No. 652 dated 18.9.1995, Police Station Lahore, was tried and
sentenced by the learned Addl. Sessions Judge Lahore to imprisonment
for life and in pay an amount of Rs.25000/- as compensation to the
legal heirs of the deceased Vide: his judgment dated 13.11.19 7, has.
now impugned his conviction in appeal. 2. P.W. Munawar Khan, A.S.I,
who was present near a Petrol Pump in village Jehangira alongwith other
police officials in connection with his routine patrol duty, on hearing a
report of fire proceeded towards its direction. While being on his
way towards the desired destination the appellant who was armed with
a shot-gun came across him, disclosed that he killed the deceased
Salahuddin son of Miftahuddin by firing at him and then led him to the
discovery of the house where the dead-body of the decease'! was found.
The motive for the occurrence was illicit relations of the deceased with
the wife of the appellant ever-since her child-hood which resulted in her
ill-health. The P.W. after recording the murasila, preparing the injury-
sheet and compiling the inquest report, despatched the dead-body of the
deceases! for post-mortem examination, prepared the site-plan, arrested
the accused, took into possession the shot-gun alongwith two live

Peshawar High Court

 2388
cartridges, blood stained earth, 3 deformed pellets, 2 empties from
the spot and sent the murasila for the registration of case.
The Prosecution to prove its case relied upon the FIR rec, i .led
OH the basis of the statement of the appellant, discovery of the
house at his instance where the dead body was found, recovery of he
shot-gun from his possession, empties from the spot and the report
of the Ballistic Expert besides motive. First of all we examine the FIR
and its probative value. As is clear from its content it was ecorded on
the basis of the statement made by the appellant. There is no cavil and
quarrel with the proposition ;hat the FIR itself is not a substantive
piece of evidence unless its content is affirmed on oath nd subjected
to the test of cross-examination. It, as far as the provisions of
Section 154 of the Cr.P.C., Articles 140 and 153 of the Qai.uu-e- Shahadat
Order, are concerned, is a previous statement hich car. 1 e used for the
purpose of contradicting and corroborating its maker. So long as it is not
proved in accordance with the law mentioned above, it is, as =.uch. no
evidence and, therefore, cannot be aken as a proof of anything
stated therein. But when it is based on a statement made by an
accused, as in this case, before the Police which tends to incriminate
him with reference to the ffence e is charged with, in that event,
it being inadmissible in evidence by virtue of Article 38 of the
Qamm-e-Shahadat Order, is not even worth the paper it is written on,
hence has to be left entirely out. Of account. Next comes the evidence
of discoveiy of the house at the instance of the appellant, recovery of the
shot-gun from his possession, empties from the spot and the report of the
Ballistice Expert. The fact of-discover}' of the ouse at the instance of
the appellant where the dead body was found will prove nothing but his
knowledge about the place of occurrence. Similarly the recovery of shot-
gun from his possession and empties from the spot and the positive
report of the Ballistic Expert, may, at their best, prove the fact about the
use of the shot-gun in the commission of the crime but in no manner
prove that it was the appellant who used them in the commission of
the crime. Moreover, a delay of one month in the despatch of the shot-
gun and the empties to the Ballistic Expert will rob the eport of its
value if it is assumed to have any othe wise. 6. To prove the motive,
the most important witness was the wife of the appellant whose ill-
health was allegedly wrought by the sinister acts o; the eceased and
the other important witness was the Doctor who on examining her
pathological conditions attributed her ill-health to the acts of exual
intercourse with her in her child-hood. Strangely enough, either the A
wife was examined in the Court nor an efforts was made by the
Investigating Officer to examine the Doctor opining about the cause of

Peshawar High Court

 2389
her ill-health. In the absence of this evidence the stoiy about the otive
ppears to be false and fictional.
7. The story nar ated by Munawar Khan P.W. when put in
the a crucible of probabilities also does not ring true and
natural in the circumstances of the case. How could he decided about
the directionreport of fire on hearing it from a ditance of 2, i kilo. i> tt
>• 'i where he was standing at the relevant time an ' t . i i n 1 ! . right
part without being a man of extra-ordinan meat il t i t in canny
perception, are the un-answered quisium \ ' < testimony un-
worthy of trust and belief.
8. The prosecution version, to'conclude, sthe Investigating
Officer who instead of making an tit earth the actual facts and
circumstances leading to tl t crime and the person behind it, found a
figure head in eye-wash. When no direct evidence is forth-coming
with the crime and likewise when there is no circum^' specie which is
incompatible with the innocence of the alternative but to extend the
benefit of doubt, to him. 9. For the foregoing reasons, we
allow this appeal, S L- I a- conviction awarded and the
sentence imposed, The appellant s released forthwith if
not required in any other offence.
AA APEEL ALLOWDED

Peshawar High Court

 2390

PLJ 2001 Cr.C. (Peshawar) 804 (DB)

Present, .MUHAMMAD RAZA KHAN, C.J. AND EJAZ
YASIN and 3 anothers—Appellants

versus

STATE and other-Respondents

Criminal Appeal No, 372 of 1997. decided on 17.4.2Cn"il. ( i )

Abscondance--
h xi where otherwise evidence on rec) crime, abscondence cannoi
tak

( i i ) Pakistan Penal Code, 1860 (XLV of 1800)-

—-Ss. 302, 324, 148 and 149--Incident highly mysuiu. >-, au 1 -

doubtful—An examination of evidence on recoid v, ,i>h
occurrence has not taken place in manner descnbui !i • ', • <.
Narration given by eye witnesses that deceased weie p i 11 \ u'i» their
fields, namely, 'Klnira' when appellants alongui':, tin i i co-
accused popped up from opposite side and start o 1 fu i : n'i consistent
with medical evidence as fire-arm entry \\oi' i L \ front as well as
back of two of deceased, more so \\hen , >• according to P.Ws. was
fired at from behind pretended to have seen occurrence were not
pre->Liif * time—Number of injuries on person of each of dectisui '-i
m\ -a crime of extreme vengeance and vendetta—Ho1^ one >u
happened to be a companion and cohort, of other two elect i i .
which remained lost in unfathomable waters of mvstiiv *
circumstances make this incident highly mystein us an i L
doubtful, therefore, holding appellants guilty for minder or \ c > < v
basis of this evidence, would not be in accoiduiiiL ,• t]
^ S administration of justice-Appellant acquitted.
Mr. Esa Khan, Advocate for Appellants. Mr. Fakhrul
Islam Law Officer, for Suite, Hqji Shrnsul Qamar,
Advocate for Complainant. Date of hearing : 17.4.2001.

JUDGMENT

Peshawar High Court

 2391
Ejaz Afzal Khan, J.—The appellants herein were charged fur the
murders of Toor Muhammad, Noor Muhammad and Ashfaq Ahmad in
a case registered against them and the absconding co-accused under
Section 302/324/148/149'PPC, Vide. FIR No. 56 dated 3.2.1992 in Police
Station Mathra, Tehsil and Distt. Peshawar.
2. The facts, stated in brief, are that on the day of occurrence,
Fa/a! Mir P.W. and his brothers, namely, Noor Muhammad. Toor
Muhammad and Gharibullah were going to their fields on a
thoroughfare near the bouse of one Ashraf Khan. As soon as they reached
the place of ccurrence, Yasiu. Wali Muhammad alias Chaman,
Mukhtu.,, Khan, Roshan Khan, appellants herein, Faqir and Ayaz,
Absconding co-accused duly armed ame from the opposite direction
and started firing on them, in consequence whereof Noor Muhammad,
Toor Muhammad and Ishfaq Ahmad way arer were hit and died on
the spot. The motive for the occurrence was that the appeliant.
Roshan was fired at by some one a year before or which the deceased
were suspected.
3. Bahadur Khan A.S.I, on getting an inkling about the
occurrence proceeded to the spot where he after recording the murasila,
preparing the injury-sheets and the inquest reports of the deceased,
dispatched them to

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 2392

the Distt. Head Quarter Hospital for post-mortem examination,

prepared the site-plan, took into possession blood-stained earth,
mpties of 30 and 7.62 bore, spent bullets from the spot, packed
them into separate sealed parcels, recorded the statements of the
P.Ws. and handed over the case to the S.H.O. for further
proceedings who on completion of the investigation forwarded the
appellants for trial.

4. On being charged when the appellants pleaded not guilty,

the prosecution examined as many as eleven witnesses to prove its case
gainstthem.
5. Dr. Javed Iqbal, Medical Officer, Distt: Head Quarter Nasir
Bagh Peshawar, performed the post-mortem examination on the dead
body of Toor Muhammad and found the following :--

External Examination.

No mark of ligature of dissection on the neck present.

A young man of the age 33 years moderate! built body lying dead.
Bleeding from mouth and nose present. Post-Mortem lividity and rigor
mortis fully developed. Belonging: One pair of sky colour Qameez and
Shalwar and one white banyan blood-stained and wet fully bearing cuts
and wounds holes present on the clothes.
Injuries.

1. A fire-arm entry wound situated on back of neck on right

side oval in shape % x 1/3 cm in size 8 cm from the mastoicl
process and 7 cm from the tip of 7th cervical vertebrae.
2. F.A. exit wound on the check stellite in shape 2* x 1^
cm in size 3 cm from the angel of mouth and 4 cm from the
angle ofleft mandiable.
3. F.A. entry wound in the right flank 1% x % cm in size
7 cm above the anterior superior iliac spine and 16
cm from
umbilicus.
4. Two fire-arm exit wounds on the left side front of
abdomenwith herniation of the loop of intestine 4 x 2 cm
in size 4 cm from umbilicus and 7 cm from the left

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 2393
anterior superior iliac spine with minor wound 1 cm apart.
One metalic piece of the bullet.
5. A fire-arm entry wound on the outer aspect of right thing
2x1 cm in size 17 cm below the lower border (fold) of right
buttock and 5% cm above the popleteal fossa.
6. Fire-arm exit wound on the
inner aspect of right thigh 2 x 1 cm
in size 10 cm above the knee and 30
cm below the right anterior
superior iliac spine

7. A fire-arm entry wound 1 x 1% cm in size

situated on the left thigh 8 cm above the popleteal
fossa and 30 cm below the lower- fold of left
buttock a bullet was recovered from the sub cut
aneous tissues near the entry wound,
8. A fire-arm entry wound of 1 x 1 cm in size
situated on outer aspect of left leg 14% cm below
the left knee joint and 20 m above the left ankel
joint.
9. A fire-arm exit wound situated on the outer aspect
of left leg 1% x 1 cm in size 10 cm above the
ankle joint and 13 cm elowpopeteal fossa.
10. A fire-arm entiy wound on the dorsal surface of left hand with
metalic foreign body 2 x 3 cm in size 6 cm above the wrist joint
* and 2 cm below the base of middle finger.
11. Fire-arm exit wound on the plam of left hand 2 x 1
cm in size 3 cm above the middle finger and 6
cm from the root of he thumb.
Internal Examination.

Major blood vessel of the neck, abdomen, left leg right leg under
corresponding wounds injured. Walls peritoneum were injured,
Stomach healthy and containing 300 cc of digested food. Small and large
intestines were injured. Bladder also injured.
Opinion.

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 2394
In his opinion the cause of death is injures to- the neck, structures,
intestines and bladder due to fire-arm.Probable time between injury and
death 10-40 minutes and time between death and P.M. 12 to 15 hours.
6. On the same day he performed the post-mortem
examination on the dead body of Ishfaq Ahmad and found the
following :--
External Examination.

1. A fire-arm entry wound on % cm in diameter

situated on the left side front of chest 2 cm below
the clavicle and 9 cm from the top of shoulder.
2. F.A. exit wound of 3 x 1 cm in size on left side
back of chest 9 cm from middle and 10 cm below
the inferior angle of left scapula.
3. Fire-arm entry wound of \ cm diameter situated
on left sideback of chest 7 cm from the left axilla
and 11 cm from midline.
4. Fire-arm exit wound of 5 x 2 cm in size
situated on left side front of chest 2 cm above left
nipple and 8 cm from midline.

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 2395

5. Fire-arm exit wound of 1 x \ cm it size situated on buttocK

1 !J cm from medline and 6 cm below the anterior
superior iliac
spine.
6. Fire-arm entry wound of 2% x \\ i'1 s'ize situated on left
buttock 7 cm lateral to wound No, 5.
7. Fire-arm entry wound of % cm in diameter situated on
right buttock 10 cm from midline and 11 cm below the
anterior superior iliac spine,
8. Fire-arm exit wound of 4 x 2 cm in size situated on left
groin. (public region) 4 cm from midline and 1 cm below
the ingunnl ligament.
9. A fire-arm grazing wound of 7 x 1 cm in size sirua'^l on
le*T dorsum of forehand 18 cm below the elbow jonu an.l
just on
wrist joint.
10. A fire-arm entry wound of 1 x % cm in size situated on
right front of upper arm 13 cm below the top of shoulder
and 13 cni
from elbow joint.
11. Fire-arm exit wound of 6 x 3 in size situated on outer
aspect of right upper arm 4 cm above elbow joint and 12 cm
from axillary
fossa.

12. A fire-arm gutter wound of 9 x 2 cm in size situated on

outer aspect of right upper arm 16 cm below the shoulder
top and li !
cm above the elbow joint.
Internal examination.

Left side chest wall, left pleasure, left lung, pericardium and heart and
blood vessel in the chest right upper arm and left buttock under
corresponding wound were found injured. Peritoneum, diaphragm were
injured and stomach was healthy and containing 300 cc of digested
food. Spleen was also injured. In his opinion the cause of death is

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 2396
injuries to the vital organs i.e. heart, left lung, spleen and right upper
arm due to fire-arm. Probable time between injury and death 0-1/2
hours and time between death and P.M. 12-15 hours.
External Examination.
No mark of ligature on dissection on neck present. A moderate!}' built
body barred shaved lying dead. P.M. lividity and R.M, fully developed.
Injuries :

1. " Fire-arm entry wound of 1 x % cm in size situated on left,

front of chest 6 cm from left nipple and 6 cm xiphoid process.
2. F.A. entiy wound of % cm in diameter situated on left front
of chest 6% cm from left nipple and 3 cm from xiphoid
process-
3. Fire-arm entry wound of % cm in diameter situated on
right ront of chest 10% cm from right nipple and 17%
cm above umbilicus.
4. F.A. entiy wound of % cm in diameter situated on
epigastrum 10% cm from umbilicus and 5% cm below the
sternum.
5. F.A. entiy wound of 1 x % cm in size situated on right, hand
on the base of the thumb 7 cm from the wrist joint and
6^ cm
from the tip of the thumb.
6. F.A. exit wound of 2 x % cm in size situated on left
dorsuin side of thumb 6 cm above wrist joint and 5 cm
below the tip of the
thumb.
7. F.A. exit wound of % cm in diameter situated on right
hand 6% cm from wrist joint and 5 cm from the tip of
thumb.
8. F.A. exit wound of 2% x 1% cm in size situated on the left
side front of chest 12% cm from the clavicle and 5% cm
from left,
axilla.
9. F.A. exit wound of 2% cm x 1% cm in size situated on left
side front of chest 20*; cm below the clavicle and 25% cm
above
posterior superior iliac spine.

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 2397
10. F.A. exit wound of 1% x 1 cm in size situated on the
back of abdomen 1% cm above posterior superior iliac
spine and 5 cm
above lumber region.
11. F.A. exit wound of 2% x % cm in size situated on back of
the abdomen 1 cm below Injury No. 10.
Internal examination.

Walls both sides, plaurac both side, right lung, left lung, pericardium and
heart and blood vessels in the chest abdomen left and right head under
corresponding wounds were injured. Walls, peritoneum, diaphragm
were injured and stomach was health and conta cc of semi digested
food. Small intestine and large intestines, liver were injured. In his
opinion tht 'mmediate cause of death is injuries to the vital organs i.e.
heart, lungs liver and intestines due to fire-arm. Probable time between
injury and death immediate an s time between death and P.M.
15 to 18 hours.
8. The ocular account, as detailed above, was furnished by Fazal
Mir and Ghairbullah.
9. On the close of the prosecution evidence the appellants
professed innocence and denied their involvement in the commission of
the crime.
10. The learned trial Judge on the conclusion of the trial
sentenced each of them to undergo imprisonment for life and to pay
an amount of
Rs. 10,000/- to the legal heirs of the deceased Noor Muhammad and
Toor Muhammad compensation or in default to suffer further S.I. for six
months. Hence this appeal.
11. It was mainly contended by the learned counsel for
the appellants that the occurrence is blind and un-witnessed; that the
medical evidence is in conflict with the ocular testimony; that the
number and seats of injures on the persons of the deceased show that
the ccurrence has no' taken place in the manner described by the
Prosecution; and that even the motive for the occurrence is not strong
enough to justify such a brutal act, on the part of the appellants, which
has taken away three human lives.
12. The prosecution on the other hand, defended the
judgment of the learned trial Court by advancing the oft-repeated
arguments that the

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 2398
evidence on the record connects the appellants with the crime beyond
any shadow of reasonable doubt; that there is no motive whatever to
falsely
implicate them and that their prolonged noticeable abscondence would
lend added vigour to the truth of the charge against them.
13. An examination of the evidence on the record would reveal
that the occurrence has not taken place in the manner described
by the prosecution. The narration given by the eye-witnesses that the
decease • were proceeding towards their fields, namely, 'Khura' when
the appellants alongwith their absconding co-accused popped up from
the opposite side and started firing on them is not consistent with the
medical evidence as the fire arm entry wounds are found on the front
as well as back of two of the deceased, more so when none of the
deceased according to the P.Ws. wasfired at from behind.
13-A. How the deceased Ashfaq Ahmad happened to be present
on the scene of occurrence and how did he sustain fire-arm injuries
on his person has not been explained at all by the prosecution. Had he
been hit by a stray bullet, it could well have been said that his death ws
accidental. But where the wounds Of entry on the back and front of
the deceased Ashfaq Ahmad are as many as six and he has been
shown to have fallen dead at a point which is out side the line, rane
and direction of the fire shown to have been made by the appellants
and the absconding co-accused, then the only. tenable deduction we
could be led to is that the P.Ws. who posed and j „ pretended to
have seen the occurrence were not present there at the relevant | time.
14. The number of injuries on the person of each of the
deceased j shows that it was a crime of extreme vengeance and
vendetta. How Ashfaq j „ Ahmad deceased happened to be a
companion and cohort of the other two j deceased is a fact
which remained lost in the unfathomable waters of| mystery.
15. The statement of the P.Ws. that they were well within
the firing range of the assailants and could have been hit if they had
not ought refuge behind the embankment wall of the nearby fields,
which stands contradicted by the Investigating Officer who
denied the existence of any such embankment wall near
and around the place of occurrence, further butresses the
conclusion that they were not present at the scene of
occurrence at the relevant time. The presence of empties near the
dead bodies of the deceased isanother circumstance tending to
change the whole complexion of the occurrence which has also

Peshawar High Court

 2399
been alluded to by the learned trial Judge in his judgment though
from a different angle of vision, further depends the doubt and
confusion about the actual events culminating in the present
incident. The story projected by the defence during the course of
cross- examination about the abduction of one Mst. Nasreen by the
deceased Toor Muhammad has given yet another turn to the
prosecution case. In view of the admission of the P.Ws., that Ms?.
Nasreen after having been abducted by the deceased Toor
Muhammad bore him a child; that the said Mst. Nasreen was
engaged with one Sher Akber and that after seeing the dead
bodies of the deceased Toor Muhammad Noor Muhammad,
one Lai Muhammad commended the mother of Mst. Nasreen for
having -master minded these murders, the occurrence appears to
have been an authorship of the brothers of Mst. Nasreen or her
finance.

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 2400

18. All these circumstances discussed above make this

incident highly mysterious and extremely doubtful, therefore, holding
the appellants
guilty for the murders of the deceased on the basis of this evidence, to
our mind, would not be in accordance with the safe administration of
justice.

19. As far as the abscondence of the appellants is concerned, it is

by | now more than settled that where otherwise the evidence on the
record is I deficient to connect the appellants with the crime, the
abscondence cannot j be taken to remedy the defects of the prosecution
case.

and t;

20. These are the reasons for our short order dated 1'
whereby the appeal is accepted, the impugned conviction recorded
sentences imposed by th' learned Addl: Sessions Judge Peshawar date:!
8.12.1997 are set aside anc -.he appellants are acquitted of the charge;
under Section 302/324/148 /149 P.P.C. If not required to be detained in
any other cause, they be released forthwith.
(M.Y.)
Appeal accepted.

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 2401

PLJ 2001 Cr.C. (Peshawar) 1008

Present: QAZI EHSANULLAH QuRESHi AND EJAZ

AFZAL KHAN, JJ,

BAZ GUL-Appellant

versus

STATE and another—Respondenis Criminal Appeal No. 78 of 2000, heard

on 18.1.2000. Pakistan Penal Code, 1860 (XLV of 1860)-
—S. 302—Murdei*—Offence of—Conviction for—Challenge—Neither
witness was produced nor any identification parade was held to
establish that it was appellant who was responsible for commission of
crime-In the circumstance of case it was all more imperative rather
indispensable to examine witness and to hold identification parade—In
absence of his statement and identification parade there is no other
evidence on record to establish identity of appellant as person
responsible for killing deceased—Evidence furnished by P.W. 5
also does not establish that it was appellant who was responsible for
commission of crime—Firstly, because his name does not figure
anywhere in statement of witness; secondly because it is full of
additions and improvements; thirdly because it is evasive inasmuch as
it does not directly link and lace appellant with crime and fourthly
because he saw appellant while going, from an areal distance of 200
yards—Similarly recovery of keys from scene of occurrence whereby one
of locks on a b. •<£ lying in house of appellant was opened cannot prove
that he was autnor of tragedy as keys may have fallen from pocket of
appellant while passing through spot of occurrence as a \\ay-farer-
Moreover, some times a lock could be opened with any other key
than that of lock itself—Next conies confessional statement of
appellant— That also does not make out a case for conviction
against appellant because according to confessional statement
appellant gave blows to deceased with a sickle in order to extricate
himself from clutches of deceased whereas according to medical
evidence injuries sustained by deceased were caused by blunt means-
If exclude these two pieces of evidence from consideration then
nothing is left behind to link appellir..: with crime—Held:
Prosecution has not been able to produce a:," confidence

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 2402
inspiring evidence to connect appellant with crime beyond any hadow
of reasonable doubt—Appeal accepted. [Pp. 1012] A & B Mr.
Subhanullah Khan, Advocate for Appellant. Mr. Ali Jamil Qazi,
Advocate for State. Mr. Fazai Ghafoor, Advocate for Complainant.
Date of hearing: 18.1.2001.
JUDGMENT
Ejaz Afxal Khan, J.--On 5.2.1997 Kifayatullah I.H.C. after
learning about some casualty proceeded to the Civil Hospital Khawaza
Khela where3 he found the deceased Sanober lying injured and
unconscious in the Emergency Ward. His son Umar Wahid who
happened to be there, reported that his father was a Chaukidar in a
Forest owned by the inmates of village Sheen and had gone to the Forest
for his routine duty. On getting an inkling about some mishap with his
father when he went to the Forest he saw him lying injured and
unconsciouss there and thus shifted him to the Hospital. In the report so
made he charged no body for injuring his father as according to him. lie
and the deceased had no enmity with any one.
2. The I.H.C. scribed the murasila Ex.PA, prepared injury-
sheet x.P.W. 6/1 and after obtaining the opinion of the Doctor Vide:
application x: PW 6/2 about the incapacity of the deceased to make any
statement, sent riurasila for the registration of case. On receipt of the
murasila the S.H.O. egistered a case Vide FIR No. 60 dated 5.2.1997
under Section 324 PPG in he Police Station Khawaza Khela which is
Ex.P.A./l. The S.H.O. P.W, 9, eputed Muhammad Alam A.S.I., P.W. 10
for the investigation of the case. he Investigating Officer on receipt a
copy of the FIR visited the spot. repared the site-plan Ex:PB at the
instance of the eye-witnesses, took into ossession blood-stained earth
and blood-stained pebbles Ex:P-6, a even iece of wood Ex: P-7, one
ring Ex: P-8 consisting of 3 keys and one scissor .Y^: ecovery memo:
Ex:PC. In the meantime when the deceased u;:u::.ted to his
injuries, the Investigating Officer also prepared the inquest ep ;:- Ix:?.\V.
9/1, arrested the accused on 6.2.1997, recovered sickle Ex: P-9 t hi;
instance Vide: recovery memo: Ex: P.W. 3/1, prepared the site-plan
x:?.W. 9/2 of the place of recovery, sent the blood-stained articles to
the eric'.cgist for opinion and on receipt thereof placed it on the file ich is
Ex: .W. 9/5. During the course of interrogation when the appellant
expressed is \viihngness to confess his guilt, the Investigating Officer
produced him efore the Magistrate who recorded his confessional
statement.
3. On completion of the investigation the appellant was forwarded
to he Court of learned Additional Sessions Judge/Azafi Zala Qazi for trial.

Peshawar High Court

 2403
4. On being charged when the appellant pleaded not guilty
the rosecution examined as many as 10 witnesses against the appellant to
prove he case against him. 5. P.W. 1 deposed that in his presence blood-
stained earth, bloodstained pebble and a ring consisting of 3 keys and one
scissor were recovered Vide: recovery memo: Ex:P.C. and that during the
course of house search of the appellant, a lock on a box lying there was
opened with one of the keys mentioned above Vide: memo: Ex:PC/l, a
30 bore pistol with 6 cartridges, a single barrel shot-gun and one rifle
were taken into possession Vide: recovery memo: Ex:P.C./2. P.W. 2
is Mst. Khubani who furnished eye witness account by stating that on
the eventful day she was present in her house that one Mst. Gulzadai
called her by saying that she is being summoned by Ghundo who was
standing some-where near the scene of occurrence. On reaching there
the said lady directed her to go further down in the depression.
Accordingly when she went there she witnessed that, the appellant Baz
Gul was killing the deceased with stones. On queiy as to why he was
killing the deceased, he bolted away from the spot. She then asked one
Muhammad Hamza to identify the person who had injured the
deceased. P.W. 3 testified to the correctness of Ex:P\V. 3/1 Vide: which
the Investigating Officer at the instance of the accused recovered sickle
which was stained with blood. P.W. 4 is IHC who testified to the
correctness of recovery memo: Ex: P.W. 4/1 whereby blood-stained shirt
Ex:P-l, bloodstained shalwar Ex:P-2, blood-stained wollen cap Ex:P-3,
blood-stained Wasket Ex: P-4 and a sheet Ex:P-5 were taken into
possession and packed into a sealed parcel. P.W. 5 stated that they were
collecting fuel wood that on reaching a place Juznai, they saw the accused
cutting wood. After covering some distance when they stayed for a while
to take rest they were informed by Mst. Khubanai that there was a
quarrel between the appellant and the deceased and that the appellant
injured the deceased. PAY. 6 partially investigated the case, recorded
rnurasila Ex:P.A. prepared injury-sheet Ex:P.W. 6/1 and obtained
opinion of the Doctor Vide: Ex:P.W. 6/2. P.W, 7 medically examined the
deceased who was then injured and found the following:—
"1. Laceration of scalp at forehead 2" x %" by scalp deep
(hone exposed).
2. Laceration of scalp Rt temporal region 3" x %" by scalp
deep bone exposed and fractured).
3. Laceration of scalp at vertiv 3" x %" by scalp deep
(bone xposed).
Injuries are caused by blunt
means. Within 24 hours and are
grievious. Patient was serious and
unconscious. He was referred to

Peshawar High Court

 2404
Saidu Hospital but on his way
he v.u< expired at about 1600
hours." P.W. 8 recorded the
confessional statement of the
appellant and testified to the
correctness of the statement
Ex:P.W. 8/1, questionare
Ex:P.\V. 8/2 and Certificate
Ex:P.W. 8/3. P.W. 9. on receipt of
murasila registered the case Vide:
FIR No. Ex:P.A./l and during the
course of house search opened
the lock of a box lying in the
house of the appellant with one of
the keys Vide: memo: Ex:P.C./l,
recovered arms etc. Vide: memo:
Ex:P.C./2 and recorded the
statement of the witnesses
under Section 161 Cr.P.C.
P.W. 10 investigated the case and
recovered material detailed above,
prepared the site-plan Ex:P.\V.
9/2 produced the appellant for
recording confessional
£to.temerit Vide: application Ex:
P.W. 9/2, recorded Police
statement of tiie witnesses, got
their magisterial statements
recorded, sent the incriminating
material for opinion to the
chemical examiner, on receipt of
his report placed it en the file
which is Ex:P.W. 9/5 and on the
completion of the investigation
r.ar.ied over the file to the S.H.O.
for its submission to the trial
Court who accordingly submitted
it to the Court of the learned
Sessions Judge for trial.
6. After the close of the prosecution evidence, the statement of
the used under Section 342 Cr.P.C. was recorded wherein the
appellant leaded innocence and denied his involvement in the
commission of the ime. On the conclusion of the trial, the appellant

Peshawar High Court

 2405
was sentenced by the earned Ac!ill: Sessions Judge/Azafi Zila Qazi to
pay Diyat to the legal heirs f the deceased hi three equal instalments
Vide: judgment/order dated -:.11,1999. The appellant en being
aggrieved by the judgment/order filed his appeal.
7. The learned counsel appearing on behalf of the
appellant ontended that it is an un-witnessed incident; that the
ocular account so alled was belatedly introduced; that the
incriminating recoveries by no eans are suggestive of the fact that the
appellant is responsible for causing atal injuries to the deceased
and that the version spelt out in the onfessional statement is not
in conformity with the medical evidence as ccording to the
confessional statement injuries on the deceased were caused y sickle
which is a sharp edged weapon whereas injuries on the deceased
ccording to the Doctor were caused by blunt means. He by concluding
his : ccT.ments submitted that the prosecution has miserably
failed to ubstantiate the charges against the appellant. S. On the other
hand, the learned State counsel contended that. there is direct as well
as circumstantial evidence to connect the accused with the crime; that the
recovery of the keys from the spot of incident, whereby cr.e cf the locks
in the house of the appellant was opened, would bear ample testimony to
the fact that he was present at the scene of incident and that he was
responsible for enacting this tragedy. He next contend that the
confessional statement does not run counter to the medical evidence or
for that matter to the ocular account. He by summing up his
arguments submitted that the learned trial Court has rightly sentenced
him to pay the amount of Diyat. 9. We have carefully considered the
arguments of the learned counsel for the parties and had the advantage
of examining the record. Even if it is assumed for a while that the
ocular account furnished by P.VY. Khubani is true, in that case too, it
does not show that it was the appellant who was responsible for the
commission of the crime because according to her statement when she
went she went to the place of the occurrence she saw some one killing
the deceased. No sooner did she ask that person as to why he was killing
the deceased, than he bolted away and she asked one Hamza to identify
that person, meaning thereby that she herself did not know that
person. Strangely enough neither Hamza was produced nor any
Identification Parade was held to establish that it was the appellant who
was responsible for the commission of the crime. In the circumstances of
the case it was all the more imperative rather indispensable to examine
Hamza and to hold Identification Parade. In the absence of his
statement and Identification Parade there is no other evidence on the
record to establish! the identity of the appellant as the person responsible
for killing the doeuascd. The evidence furnished by P.W. 5 also does not

Peshawar High Court

 2406
establish that it \vdb the appellant who was responsible for the
commission of the crime. Firstly, because his name does not figure
anywhere in the statement of Mst. Khubani; secondly because it is full
of additions and improvements; thirdly because it is evassive inasmuch
as it does not directly link and lace the appellant with the crime and
fourthly because he saw the appellant while going, from an areal
distance of 200 years. Similarly the recovery of keys from the scene of
occurrence whereby one of the locks on a box lying in the house of the
appellant was opened cannot prove that he was the author of the
tragedy as the keys may have fallen from the pocket of the appellant
while passing through the spot of the occurrence as a way-farer.
Moreover, some times a lock could be opened with any other key than
that of the lock itself.
10. Next comes the confessional statement of the appellant.
When e examine it, that also does not make out a case for conviction
against the ppellant because according to the confessional statement the
appellant gave lows to the deceased with a sickle in order to extricate
himself from the lutches of the .deceased whereas according to the
medical evidence the njuries sustained by the deceased were caused
by blunt means. When we xclude these two pieces of evidence from
consideration then nothing is leftbehind to link the appellant with the
crime. We, therefore, on a detailed analysis of the evidence on the
record, are constrained to hold that the rosecution has not been able to
produce any confidence inspiring evidence o connect the appellant with
the crime beyond any shadow of reasonable
doubt.
11. For the aforesaid reasons, we accept this appeal, set
aside the judgment and order of the learned Additional Sessions
Judge/Azafi Zila Qaziand direct the appellant to be released forthwith, if
not required in any other ase.
(N.R.) Appeal accused

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 2407

Judgment Sheet
IN THE PESHAWAR HIGH COURT,
PESHAWAR
JUDICIAL DEPART
Cr. Appeal No.357 of 1998.
JUDGMENT
Date of hearing………………………………………………………

Petitioner……………………………………………………………..

Respondents………………………………………………………
…….

*******************
(a) Criminal Procedure Code (V of 1898)
S. 403 Accused tried/convicted by Special Judge Custom for offence under S.156 (1) (8)
(16), 157, 178, Customs Act 1969 could subsequently be tried/convicted by Special Court
constituted under Control of Narcotic Substances Ordinance (1995) for offences punishable
under the Ordinance. In such case, accused cannot claim protection against double jeopardy
provided in S. 403, Cr.P.C. Art. 13, Constitution of Pakistan 1973 and S.26, General Clauses
Act, (1897) as offences under Customs Act and Control of Narcotic Substances Ordinance are
distinct offences Argument that subsequent trial and conviction by Special Court constituted
under Control of Narcotic Substances Ordinance 1995 was hit by S.403 repelled as being
misconceived and shorn of any force.

(b) Customs Act (IV of 1969)

Ss. 156 (1)(8) (16), 157, 178. Special Judge Customs
is not competent to try offences under Ss.156 (1)(8) (16), 157,
178 Customs Act as Special Court constituted under Control of
Narcotic Substances Ordinance (1995) had exclusive
jurisdiction to try these offences. Conviction/sentence recorded
by Special Judge Customs in such case quashed by High Court
in exercise of its inherent jurisdiction under S.561-A Cr.P.C. as
being without jurisdiction.

Peshawar High Court

 2408
( C) Control of Narcotic Substances Ordinance (LXXXIV
of 1995)----
Ss. 6,7,8,9. Constitution in prosecution evidence which
is not of the type and magnitude which would necessitate the
rejection of the entire evidence which is otherwise quite
consistent and truthful would not vitiate the
conviction/sentence recorded by Special Court. Held:
Conviction/sentence was unexceptionable as there was nothing
on record to warrant the inference that conviction were falsely
implicated on account of some animosity or ulterior motive.
(d) Ibid---
Ss, 6,7,8,9. Argument that sample were not sent to the
prescribed analyst would be devoid of force when the very
report showed that it was issued by notified analyst.
(e) Criminal Procedure Code (V of 1898)
S. 561-A Inherent jurisdiction. Its exercise by High
Court in criminal appeal filed to challenge conviction and
sentence recorded by Special Judge Customs under Customs
Act and Special Court constituted under Control of Narcotic
Substances Ordinance (1995), High Court upholding
conviction/sentence recorded by Special Court constituted
Ordinance (1995) but quashing in exercise of its inherent
jurisdiction conviction/sentence recorded by Special Judge
Customs as being without jurisdiction.
(f) Sentence---
Sentence of fine of Rs.one lac imposed by Special
Judge Custom reduced to Rs.10,000/- as convicts had suffered
the rigours of trial before Special Judge Customs without any
legal and moral justification.

Khalid Khan for appellant.

Salahuddin Khan, DAG assisted by Tariq Khan Kakar

for State.

Dates of hearing: 18.9.2001 and 19.2.2001

Peshawar High Court

 2409
EJAZ AFZAL KHAN,, J.- On 26.9.1995, Baland Khan,
Deputy Superintendent Customs alongwith other officials of the
Customs staff was on duty at Mujeeb Khan Customs Check Post
Kothal. An information from the Asstt: Collector Anti-Smuggling
Peshawar Division Kohat that a huge quantity of narcotic
substance is being smuggled through a Bus bearing No.GAD-1624,
set them on their guards. In order to foil and forestall any such
attempt the awaited bus on its arrival at 4 p.m. was stopped at the
check post and then taken to SAIT. On being searched there in the
presence of the Asstt: Collector Customs 675 K.Gs. of charas and
112 K.Gs of opium was recovered from the secret cavities of the
bus and pursuant thereto a case under sections 156 (1) (8), 16, 157
and 178 of the Customs Act, 1969 and sections 6,7,8 and 9 of the
Control of Narcotic Substances Ordinance (LXXXIV of 1995) was
registered against Shah Wali, Raj Muhammad appellants herein
and Gul Abbas their acquitted co-accused vide FIR No.78, dated
27.9.1995. On completion of investigation the case was forwarded
to the Court of learned Judge Special Court (Custom) for trial who
on conclusion thereof, sentenced the appellants to 3 years R.I. with
a fine of Rs. One lac each under section 156 (89), 2 (s) of the
Customs Act, 1969 or in default each of the appellants to undergo
6 months’ S.I. vide judgment dated 6.8.1997.
2. After the conviction of the appellants by the Judge Special
Court Customs, the case was sent to the Court of Judge Special
Court Peshawar. On being charged when the appellants and their
acquitted co-accused pleaded not guilty the prosecution examined
as many as 4 witnesses to prove its case against them. P.W.1
produced the original register with a photo-stat copy thereof
Ex.PW 1/1 wherein an entry of the case property at the time of its
being deposited in the Customs Ware-house was made. He also
produced 675 K.Gs. packets of charas Ex.P-1, 32 packets of
Opium Ex.P-2 ignition Key Ex.P-5, duplicate copy of Registration
Book of the Bus Ex.P-6 and deposed that the bus Ex.P-3 was
deposited vide inventory memo: Ex.P-4 and that the bus which is
not in functioning order is lying in the Customs House. PW 2
reiterated the whole story from receipt of information to the
completion of investigation, testified to the correctness of murasila
Ex.PA/1 recovery memo: Ex.P.C. whereby the incriminating

Peshawar High Court

 2410
material was recovered from the secret cavities of the bus. P.W. 3
stated that he prepared the samples for sending the same to the
chemical examiner vide memo: Ex.PC/1, recorded statements of
the PWs, prepared inventory Ex.PC/1, regarding the bus, testified
to its correctness, recovered one NIC copy and a cash of one
thousand from the personal search of appellant Shah Wali
vidememo: Ex.P-3/1 and driving licence from the personal search
of appellant Raj Muhammad vide recovery Memo: Ex.P3/3 PW-4
affirmed his presence at the scene of the incident and testified to
the correctness of memos. Ex.PW 3/2 and Ex. P.C. whereby
incriminating material mentioned above, copy of NIC Ex.P-5 and a
cash of one thousand Ex.P-6 were recovered. On close of evidence
the appellants and the acquitted co-accused were examined under
section 342, Cr.P.C. who professed innocence and denied their
involvement in the occurrence.
3. On the conclusion of the trial the learned Judge Special
Court sentenced the appellants to undergo imprisonment for life
and to pay a fine of Rs.1,00,000/- or in default to further undergo
S.I. for 2 years whereas their co-accused Gul Abbas was acquitted
vide judgment dated 15.10.1998.
4. The appellants herein have assailed the aforesaid judgments
of the learned Judge Special Court by filing this appeal.
5. The learned counsel appearing on behalf of the appellants
contended that since the appellants were tried and convicted by the
Special Judge Customs for smuggling narcotic vide order dated
6.8.1997 and were sentenced to 3 years R.I. and a fine of
Rs.1,00,000/- each their second trial and conviction were barred
under section 403, Cr.P.C. Article-13 of the Constitution of Islamic
Republic of Pakistan, 1973 and section-26 of the General Clauses
Act. The learned counsel in this behalf placed reliance n the case
of Omari Khoja v. State (P.L.J. 2000 Criminal Cases Lahore 701
(DB). The learned counsel while discussing the merits of the case
urged that there are clear contradictions in the statements of the
prosecution witnesses and that the samples were not sent for
opinion to the Chemical Examiner prescribed by the Ordinance,
hence no reliance can be placed on that.
6. The learned State counsel while Controverting the
arguments of the learned counsel for the appellants contended that

Peshawar High Court

 2411
the plea of double jeopardy is not available to the appellants as the
offences under the Customs Act, 1969 and those under the Control
of Narcotic Substances Ordinance, 1995 are different and distinct,
as such neither section 403, Cr.P.C. nor Article-13 of the
Constitution nor section-26 of the General Clauses Act is attracted.
To invigorate his argument he placed reliance on the judgment
rendered in the case of State V. Anwar Khattak and other (P.L.D.
1990 Federal Shariat Court 62). About the contradictions in the
statements of the prosecution witnesses he submitted that there is
no contradiction worth the name in the prosecution version except
a few minor discrepancies which cannot be taken to justify
acquittal of the appellant when otherwise it rings true and appears
to be consistent and inspires confidence.
7. We have quite carefully perused the record and the
judgments so relied upon by the respective counsel for the parties.
8. The arguments that the appellants one prosecuted before
and punished by the Judge Special Court Customs for importing
into and transporting narcotics within Pakistan could not have been
prosecuted and punished for the same offence under the Ordinance
is absolutely misconceived. In order to attract the application of
section 403, Cr.P.C. and Article-13 (a) of the Constitution which
are grounded on the common law maxim ‘memo debet his vexari
envisaging that a man shall not be brought into danger for one and
the same offence more than once, it is essential that offender must
have been prosecuted in accordance with law by a Court of
competent jurisdiction. Similarly the principle contained in
section-26 of the General Clauses Act comes into play when an act
or omission constitutes an offence under two or more enactments
but will have no application if the offence of importing into,
exporting from or transporting narcotics within Pakistan
notwithstanding the provisions of the Customs Act or any other
law for the time being in force, is exclusively triable under the
Ordinance by a Court established thereunder in view of the
provisions contained in section-42, 43 and 61 of the same which
are reproduced as under:--
“42 jurisdiction to try offence.—The Special Court
appointed under this Ordinance shall have the

Peshawar High Court

 2412
exclusive jurisdiction to try an offence cognizable
under this Ordinance.

43. Establishment of Special Courts.—(1) The

Federal Government may, by notification in the
official Gazette, establish as many Special Courts as
it considers necessary and, where it establishes more
than one Special Courts, it shall specify in the
notification place of sitting of each Special Court and
the territorial limits within which he shall exercise
jurisdiction under this Ordinance.

2………………………………………………………
…

61. Application of the Customs Act, 1969. All

prohibitions and restrictions imposed by or under this
Ordinance on the import into, export from Pakistan
and transshipment fo narcotic drugs psychotropic
substances or controlled substances shall be deemed
to be prohibitions and restrictions imposed by or
under the Customs Act, 1969 (IV of 1969) and the
provisions of this Ordinance shall apply accordingly.

Provided that, notwithstanding anything contained

in the Customs Act, 1969 (IV of 1969) or any other
law for the time being in force, all offences relating
to narcotic drugs psychotropic substances or
controlled substances shall be tried under the
provisions of this Ordinance.

Provided further that where the offences at Customs

apprehend a person involved in any offence relating
to narcotic drugs, psychotropic substances or
controlled substances shall be empowered to carry
out inquiry and investigation in the manner as an
authorized under this Ordinance”.

Peshawar High Court

 2413
9. From the above-quoted provisions it is quite clear that
Special Judge Customs was not competent to proceed against and
punish the appellants as the Special Court appointed and
established under the Ordinance had the exclusive jurisdiction to
try an offence cognizable under this Ordinance. The argument of
the learned counsel for the appellant regarding the application of
section 403, Cr.P.C. Article-13 (a) of the Constitution and section
26 of the General Clauses Act is therefore shorn of any force. The
judgment rendered in the case of Omari Khoja v. The State (PLJ
2000 Criminal Cases Lahore 701) (DB) so relied upon by the
learned counsel for the appellant being per incurim for having been
rendered in disregard of the express provisions of the Ordinance
has neither binding nor even persuasive value. The judgment
rendered in the case of State v. Anwar Khattak (Supra) is also
distinguishable in view of the above-quoted provisions.
10. The argument of the learned counsel for the appellants that
there are serious contradictions in the statements of the PWs is not
borne out from the record as there is no contradiction of the type
and magnitude which would necessitate the rejection of the entire
evidence which is otherwise quite consistent and truthful especially
when there is nothing on the record to warrant the inference that
the appellants were falsely implicated on account of some
animosity or ulterior motive.
11. The argument of the learned counsel for the appellants that
the samples were not sent to the prescribed analyst is also devoid
of force as the very report shows that it was issued by a notified
analyst.
12. For the foregoing reasons, we are convinced that the charge
against the appellants has been proved beyond any shadow of
reasonable doubt. We would, therefore, uphold the sentence of
imprisonment for life awarded to the appellants with the benefit of
section 382-B Cr.P.C.
13. Before we part with this judgment, it is essential to deal
with the sentence awarded to the appellants by the Judge Special
Court Customs whose record was sent for by us to satisfy
ourselves about its legality, propriety and correctness. It has
already been observed above that the appellants could not have
been tried and sentenced under the Customs Act, in view of the

Peshawar High Court

 2414
provisions contained in sections 42 and 61 of the Ordinance. We,
therefore, while exercising inherent powers of this Court under
section561-A Cr.P.C. set aside the judgment and order of the
learned Judge Special Court Customs dated 1.2.1997 as being
without jurisdiction and the fine if already recovered from the
convicts shall be refunded to them.
14. As the appellants faced the regours of trial before the Judge
Special Court Customs without any legal and moral justification,
we would like to modify the impugned order as to sentence of fine
by reducing the same from Rs.one lacto Rs.ten thousand or in
default to undergo S.I. for three months. With this modification the
appeal is disposed of accordingly.

PLJ 2002 Cr.C. (Peshawar) 236

Present: Ejaz Afzal Khan, J.
Mst. BIBI ZAHIRA Appellant
Versus
State respondent
Crl. A. No. 43 of 2001, decided on 28.11.2001.
Prohibition (Enforcement of Hadd) Order, 1979—
--- Art. ¾ read with CNSA Section 9---Opium---Recovery of---
Conviction and sentence ---Appeal against---- Plastic envelope
containing contraband was although found from the lap of appellant
lady yet the same admittedly belonged to co-accused as per
statement of Investigating Officer during trial and rightly so, in as
much as, two person cannot believably possess the same
simultaneously --- Co-accused of appellant having been convicted
on the charge of possessing and carrying substance in question,
convictio of appellant cannot be sustained--- Record did not show
that parcel containing sample of suspected substance was taken to
Chemical Examiner and that the same was delivered intact without
there being any tampering there with --- No reliance can thus, be
placed on the report of Chemical Examiner --- Benefit of doubt was
thus, extended to appellant Appeal allowed and she was directed to
be released forth with if she was not required in any other case.

Peshawar High Court

 2415
Mr. Dost Muhammad Khan, Advocate for Appellant.
Mr. Ghulam Hur Khan Baloch, Advocate for State.
Date of hearing: 28.11.2001.
JUDGMENT
EJAZ AFZAL KHAN, J.--- On 26.9.2000, Abdul Jalal
Khan, Inspector C.I.A., Bannu alongwith Gulap Khan, S.I and lady
constable Khurshida and other was standing across FRP Post for
checking. In the meantime a Flying Coach Bearing No. 5551-BUC
came from Miran Shah side which was stopped for checking. A
lady sitting therein was searched in whose lap a plastic envelope
containing opium weighing 550 grams was found and pursuant
thereto a case under Article ¾ of the Prohibition (Enforcement of
Hadd) Order read with Section 9 CNSA was registered against her
and a person sitting besides her vide FIR No. 131 dated 26.9.2000,
PS Baka Khel Tehsil and District Bannu.
2. After completing the necessary investigatory
formalities the appellant alongwith her co-
accused was forwarded to the Court of
learned Special Judge, Bannu for trial who
on conclusion thereof sentenced the
appellant and her co-accused to three years
RI wit ha fine of Rs. 3,000/- each or in
default to undergo six months SI with benefit
of Section 382-B Cr.P.C. under Section 9 of
the CNSA vide judgment dated 27.6.2001.
3. The appellant impugned her conviction and
sentence by filing this appeal in this Court.
4. The learned counsel for the appellant
contended that there is nothing on the record
to show that the appellant was in conscious
possession of the contraband; that the
contraband in fact belonged to the convicted
co-accused; that the Investigating Office
admitted during the course of his cross-
examination that the contraband belonged to
the convicted co-accused; that once the co-
accused was convicted and sentenced for
possessing the same substance, the appellant

Peshawar High Court

 2416
could not have been convicted therefore and
that when there is nothing on the record to
show that the sealed parcel was delivered
intact to the Chemical Examiner no reliance
can be placed on his report.
5. The learned counsel appearing on behalf of
the State argued that when the incriminating
substance was found lying in the lap of the
appellant no further evidence was required to
prove her guilt and that the evidence being
consistent and confident inspiring connects
the appellant with the crime beyond any
shadow of reasonable doubt, therefore, the
judgment of the learned Special Judge being
free from any infirmity merits no
interference.
6. We have perused the record of the case and
carefully considered the submissions of the
learned counsel for the parties.
7. It is true that the plastic envelope containing
contraband was found lying in the lap of the
appellant but it is equally true that it
belonged to the co-accused Amirullah
according to pre-trial investigation and
statement of the I.O made in the Court
during trial and rightly so because two
persons cannot believably possessed it
simultaneously. Moreover, when the co-
accused has been convicted on the charge of
possessing and carrying the substance in
question how the conviction of the appellant
can be sustained for the same sounds strange
as well as surprising.
8. Be all that as it may, we on appraisal of
entire evidence on the record are of the view
that the prosecution has not been able to
prove that she was in conscious possession
of the contraband, even if it is assumed for a

Peshawar High Court

 2417
while that it was found lying in the lap of the
appellant at the relevant time.
9. Above all else when the record is absolutely
silent as to when and by whom the sealed
parcel containing sample of the suspected
substance was taken to the Chemical
Examiner and that it was delivered intact
without there being any tampering therewith,
nor reliance in the circumstances of the case
can be placed on this report.

For the foregoing reasons we are of the view

that charge against the appellant has not been
proved beyond any shadow of reasonable
doubt, therefore by extending the benefit of
doubt we allow this appeal, set aside her
conviction and sentence and direct her
forthwith release if she is not required in any
other case.
(A.P)
Appeal accepted.

Peshawar High Court

 2418
2002 P L C (C.S.) 427

[Peshawar High Court]

Before Abdur Rauf Khan Ludhmani and Ejaz Afzal Khan, JJ

DANIEL MURAD

versus

PROVINCE OF N.-W.F.P. through Chief Secretary, Civil

Secretariat, Peshawar and 2 others

Writ Petitions Nos.986 of 1995 and 974 of 1996, decided on 2nd

November 2001.

Constitution of Pakistan (1973)---

----Arts.199, 8(3)(b), 25(2)(3) & 212---Constitutional
petition---Equality before law---Civil service ---Up
gradation---Entitlement---Civil servants working as Accountant
and Clerk in the Court of Special Judge Anticorruption had
claimed a grade at par with that of their counterparts working in
the, establishment of the District and Sessions Judges and other
Civil Courts whose posts had been re-designated and upgraded,
vide notification, but benefit of said notification had not been
extended to the civil servants despite they were holding the same
posts and performing similar functions---Validity---Court of
Special Judge Anti-Corruption, was of equal status to the Court of
District and Sessions Judge by virtue of S.3(1) of Pakistan
Criminal Law Amendment Act, 1958---No difference existed
between the duties, functions and responsibilities of the civil
servants and those of their counter-parts working in the Courts of
District and Sessions Judges and other Civil Courts---Equal
treatment of unequal is as condemnable as unequal treatment of
equals---If one set of Accountants and Clerks of Court had been
grouped together for granting of a higher grade and another set of
Accountants and Clerks had been left out notwithstanding the fact

Peshawar High Court

 2419
that they performed 'the same and similar duties, it could not be
said that said classification was based on intelligible
differentia---Principle of equality before law as envisaged by Arts.
8(3)(b) & 25(2)(3) of Connotation of Pakistan had guaranteed
equal treatment amongst equals and persons and things similarly
situated and circumstanced Case of the civil servants, by no means,
being different and distinguishable from that of their counterparts
in terms of duties, the denial of similar grade to the civil servants
could not be held to have been based on intelligible differentia
---Civil servants were entitled to grade as was allowed to the
Accountants and Clerks serving in the Courts of District and
Sessions Judges and other Civil Courts---Contention that question
of up gradation of post being a question of terms and conditions of
service was amenable to Service Tribunal and not a fit subject for
adjudication of the High Court in exercise of its Constitutional
jurisdiction, was repelled because change of grade to higher pay
scale amounted to promotion and it was not amenable to the
jurisdiction of the Service Tribunal.

Government of the Punjab through Secretary, Finance Department,

Lahore v. Mubarik Ali Khan and 8 others PLD 1993 SC 375;
Abdul Matin Khan and 2 others v. N.-W.F.P. through Chief
Secretary and 2 others PLD 1993 SC 187 and Government of the
Punjab v. Muhammad Awais Shahid 1991 SCMR 696 ref.

Shahzada Shahpur Jan for Petitioner.

Tariq Javaid, A.A.-G. for Respondents

Date of hearing: 13th June, 2001.

JUDGMENT

EJAZ AFZAL KHAN, J.---Petitioner Banial Murad irr

Writ Petition No.986 of 1995 and petitioner Muhammad Khalid
Khan in Writ Petition I No. 974 of 1996, who are working as
Accountant in BP-8 and Clerk of Court in BPS-11. in the Court of
Special Judge Anti-Corruption, N.-W.F.P., respectively have filed

Peshawar High Court

 2420
these Constitutional petitions claiming therein a grade at par with
that of their counterparts working in the establishment of the
District and Sessions Judges and other Civil Courts under the
supervisory control of the Peshawar High Court whose posts have
been redesignated and upgraded Vide: Notification No.FD (SD-1)
6-17/88, dated 1-7-1994 but its benefit has not been extended to
the petitioners in spite of the fact that they are holding the same
posts and performing similar functions.

2. The only point canvassed at the bar by the learned counsel for
the petitioner was that by virtue of section 3(1) of the Pakistan
Criminal Law Amendment, 1958, the Court of Special Judge,
Anti-Corruption is of equal status to the Court of the District and
Sessions Judge as it is presided over by a Senior District and
Sessions Judge qualified for appointment as Judge of High Court,
therefore, the grade, perks and privileges allowed to the officials of
the District and Sessions Courts should also be extended to the
petitioners in view of he equivalence of their duties and
responsibilities.

3. As against this the learned A.A.-G., argued that the upgradation

of posts and consequent increase in emoluments is a question
relating to the terms and conditions of service which is amenable
to the jurisdiction of the Service Tribunal and, therefore, not a fit
subject for adjudication by the High Court in the exercise of its
Constitutional jurisdiction.

4. The points which require our consideration are whether the

petitioners are similarly placed and positioned vis-a-vis their
counter-parts inasmuch as their duties, functions and
responsibilities are concerned and whether the classification as
alleged is based on intelligible differentia. The argument of the
teamed counsel for the petitioners that there is absolutely no
difference between the duties, functions and responsibilities of the
petitioners and those of their counterparts working with District
and Sessions Judges and other Civil Courts has .not been
convincingly resisted and refuted by the learned A.A.-G. as he
could not highlight any difference between them. Even otherwise it

Peshawar High Court

 2421
is fact too known and well beyond the reach of denial that the
Accountant and the Clerk of Court working in the Court of learned
Judge Special Court Anti-Corruption, N.-W.F.P. perform identical
duties, functions and responsibilities as are performed by their
counter-parts in the Courts of District and Sessions Judges and
other Civil Courts. When clearly the petitioners are at par with the
Accountants and Clerks of Court working in the Courts of District
and Sessions Judge and other Civil Courts and there is no
difference between their duties etc., then the denial of similar grade
to the petitioners is not understandable and cannot be said to have
been based on rational and reasonable classification.

5. It is well-established principles of law that equal treatment of

unequals is as condemnable as unequal treatment of equals. If one
set of Accountants and Clerks of Court has been grouped together
for granting of a higher grade and another set of Accountants and
Clerks of Court has been left out notwithstanding the fact that they
perform the same and similar duties etc., it cannot be said that this
classification is based on intelligible differentia. The principle of
equality before law as envisaged by Articles 8(3)(b) and 25(2)(3)
guarantees equal treatment amongst equals and persons or things
similarly situated and circumstanced. In the case oil Government
of the Punjab through Secretary, Finance Department, Lahore v.
Mubarik Ali Khan and 8 others (PLD 1993 Supreme Court 375) it
was laid down that if the employees of the Federal Shariat Court
and the Supreme Court were allowed Secretariat allowance, the
employees of the High Court performing almost identical functions
could not be denied the same and thus discriminated against. The
relevant paragraph merits verbatim reproduction which runs as
under:--

"The employees of the Federal Shariat Court and the Supreme

Court of Pakistan have been allowed such an allowance. The High
Court employees perform almost identical functions as do the
employees of these two other Courts perform. The employees of
all the three Courts have been dealt with Constitutionally by the
same provisions reproduced above. In the circumstances, the High
Court's employees cannot be discriminated against. The necessary

Peshawar High Court

 2422
provision of Secretariat/Personal Allowance had to be made in.
respect of such employees as was made in the case of the Federal
Shariat Court and the Supreme Court employees. "

6. The argument that the question of upgradation of post being a

question of terms and conditions of service is amenable to Service
Tribunal and as such not a fit subject for adjudication of the High
Court in the exercise of its Constitutional jurisdiction, is not
correct as this controversy has been set at rest in the case of Abdul
Matin Khan and 2 others v. N.-W.F.P. through Chief Secretary and
2 others (PLD 1993 Supreme Court 187) wherein it was held that
change of grade to a higher pay scale amounts to promotion and,
therefore, it is not amenable to the jurisdiction of the Service
Tribunal. The relevant paragraph is reproduced as under:--

"The learned counsel for the appellant in Appeal No. 183-P of

.1990 tried to argue that the change of grade to a higher pay scale
does not amount to promotion. He wanted to rely on some circular
in this behalf. However, when a recent judgment of this Court
contrary to his submission was pointed out to him he could not
pursue the point any further. It is Government of the Punjab v.
Muhammad Awais Shahid 1991 SCMR 696. On this ground alone
the Appeal of the Government No.184-P of 1990 merits to be
allowed and it is ordered accordingly. The other Appeal No.183-P
of 1990 is dismissed. There shall be no order as to costs."

6-A. For the foregoing reasons there is absolutely no doubt in our

mind that the case of the petitioners is, by no means, different and
distinguishable from that of, their 'counterparts in terms of duties
etc., and as such denial of similar grade, thereto, cannot be held to
have been based on intelligible differentia. We, therefore, allow
these petitions and direct the Provincial Government to allow the
petitioners similar grade as is allowed to the Accountants and that
Clerks of Court serving' in the Courts of District and Sessions
Judges and other Civil Courts under the supervisory control of
Peshawar High Court, vide Notification mentioned above

Peshawar High Court

 2423
H.B.T./405/P Appeals
allowed/Order accordingly.

Peshawar High Court

 2424

2002 C L C 1

[Peshawar]

Before Shahzad Akbar Khan and Ejaz Afzal Khan, JJ

AMINA NUZHAT BABAR---Petitioner

versus

KHAN SHER ----Respondent

Writ Petition No. 1886 of 1999, decided on 1st June, 2001.

West Pakistan Urban Rent Restriction Ordinance (VI of

1959)---

----S. 13---Constitution of Pakistan (1973),

Art.199---Constitutional petition ---Ejectment of tenant---Bona
fide personal need of landlord--Default in payment of monthly
rent---Requisite sanction by the Authorities for the reconstruction
of the premises was placed on the record and default in payment of
monthly rent was proved by the landlady---Rent Controller and the
Appellate Court dismissed the ejectment
petition---Validity---Appellate Court despite being the first Court
of appeal and final Court of fact had not considered the evidence of
the landlady on either of the grounds urged by her namely default
in payment of rent and personal use for reconstruction---Appellate
Court had based its findings without reading evidence, erroneous
assumption of fact and misapplication of law which was without
jurisdiction and lawful authority, because the very condition for the
conferment of jurisdiction on a Court or Tribunal was that it should
record .its finding on proper application of law and appreciation of
evidence---Where a finding by a Court or Tribunal was based on
misreading, non-reading of evidence, erroneous assumption of fact
and misapplication of law, such finding was liable to be interfered
with by High Court in exercise of its Constitutional

Peshawar High Court

 2425
jurisdiction---Judgment and decree passed by the Appellate Court
were set aside and the case was remanded to the Appellate. Court
for decision afresh---Constitutional petition was allowed in
circumstances.

Utility Stores Corporation of Pakistan Limited v. Punjab Labour

Appellate Tribunal and others PLD 1987 SC 447 and Muhammad
Lehrasab Khan v. Mst. Aqeel-un-Nisa and 5 others 2001 SCMR
338 ref.

Iqbal Ahmad Durrani for Petitioner., Hamid Mughal for

Respondent.

Date of hearing: 1st June, 2001.

JUDGMENT

EJAZ AFZAL KHAN, J.--- This writ petition has arisen

out of the judgment, dated 20-9-1999 of the learned District Judge,
Peshawar whereby he dismissed the,appeal of the petitioner and
thereby upheld the order of the learned Rent Controller, dated
9-2-1999.

2. The facts leading to the institution of the present writ petition

are that the petitioner landlady instituted an application for the
ejectment of the respondent on the ground of default and personal
use for reconstruction which was ultimately dismissed by the
learned Rent Controller and appeal there against also met the same
fate.

3. It was mainly contended by the learned counsel for the petitioner

that both the Courts below have based their findings on
misreading, non-reading of evidence and' misapplication of law,
therefore, are liable to be corrected by this Court in the exercise of
its Constitutional jurisdiction under Article 199 of the Constitution
of Islamic Republic of Pakistan, 1973.

Peshawar High Court

 2426
4. On the other hand, the learned counsel for the respondent
contended that where a Court or a Tribunal is vested with a
jurisdiction to decide a matter, has the jurisdiction to decide it
rightly or wrongly and no interference can be made by the High
Court in the exercise of its Constitutional jurisdiction simply
because the matter has been decided wrongly. The learned counsel'
next contended that if this Court on reappraisal of the evidence
comes to a different conclusion even then it cannot substitute its
own view for that of the lower forums.

5. An examination of the evidence on the record would show that

the landlady after applying for obtaining sanction from the
Municipal Corporation, Peshawar instituted the instant application
for the ejectment of the respondent on the ground of default and
reconstruction and subsequently by examining the Vernacular
Record Keeper of the Municipal Corporation; Peshawar brought
the requisite sanction for reconstruction on the record, and by
appearing as P.W.2 deposed about the default of the respondent in
payment of rent and her requirement of the demised premises for
reconstruction. On perusing the judgment of the learned Appellate
Court, what we are led to conclude is that it despite being first
Court of Appeal and final Court of fact has not considered
altogether the evidence of the landlady on either of the scores that
is, default and personal use for reconstruction in the light of the
relevant law and has thus, based its findings on non-reading of
evidence, erroneous assumption of fact and misapplication of law
which is clearly without jurisdiction and lawful authority, because
the very condition for the conferment of jurisdiction on a Court or
Tribunal is that it should record', its finding on proper application
of law and appreciation of evidence.

6. The argument of the learned counsel for the respondent that

where a Court or Tribunal is vested with jurisdiction, it has
jurisdiction to decide rightly or wrongly is no more valid as this
was very aptly repelled by the Honourable Supreme Court in the
case of Utility Stores Corporation of Pakistan Limited v. Punjab
Labour Appellate Tribunal and others PLD 1987 SC 447 in the
following words:--

Peshawar High Court

 2427
"It is not right to say that the Tribunal, which is invested with -the
jurisdiction to decide a particular matter, has the jurisdiction to
decide it 'rightly or wrongly' because the condition of the grant of
jurisdiction is that it should decide the matter in accordance with
law. When the Tribunal goes wrong in law it goes outside the
jurisdiction conferred on it because the Tribunal has the
jurisdiction to decide rightly but not the jurisdiction to decide
wrongly. Accordingly, when the Tribunal makes an error of law in
deciding the matter before it, it goes outside its jurisdiction and,
therefore, a determination of the Tribunal which is shown to be
erroneous on a point of law can be quashed under-the writ
jurisdiction on the ground that it is in exercise of its jurisdiction. "

7. Even in a recent judgment of the Honourable Supreme Court

rendered in the case of Muhammad Lehrasab Khan v. Mst. Aqeel-
un-Nisa and 5 others 2001 SCMR 338 it was held that when the
District Court being a final Appellate Court, based its decision on
misreading or non-reading of evidence, erroneous assumption of
fact and misapplication of law, the same can be interfered with by
the High Court in the exercise of its Constitutional jurisdiction.
The relevant paragraph thus, runs as under:--

"There is no cavil with the proposition that ordinarily the High

Court in its Constitutional jurisdiction would not undertake to
reappraise the evidence in rent matters to disturb the finding of fact
but it would certainly interfere if such findings are found to be
based on non-reading or misreading of evidence, erroneous
assumption of facts, misapplication of law, excess or abuse of
jurisdiction and arbitrary exercise of powers. "

8. From the above-quoted paragraph, it is thus, clear that where a

finding by a Court or Tribunal is based on misreading, non-reading
of evidence, erroneous assumption of fact and misapplication of
law, as in this case, it is liable to be interfered with by the High
Court in the exercise of its Constitutional jurisdiction.

9. For the foregoing reasons, we allow this writ petition, set aside
the judgment of the learned, Appellate Court and remand the case

Peshawar High Court

 2428
thereto for deciding it afresh in accordance with law and evidence
on the record.

Q.M.H./M.A.K./354/P
Case remanded.

Peshawar High Court

 2429

2003 P L C (C.S.) 696

[Peshawar High Court]

Present: Mian Shakirullah Jan, C.J. and Ijaz Afzal Khan, J

KHALIL AHMAD SIDDIQUI

Versus

PAKISTAN through Secretary Interior, Interior Division,

Government of Pakistan and 5 others

Writ Petition No. 1268 of 2001, heard on 11th December, 2002.

(a) Civil Servants (Appointment, Promotion and Transfer)

Rules, 1973---

----R.12-A [as inserted vide S.R.O. No.521(1)/2000, dated 31-7-

2000]--Qanun-e-Shahadat (10 of 1984), Art. 114---Constitution of
Pakistan (1973), Art. 199---Constitutional petition---Date of birth,
correction of---Estoppel by conduct---Civil servant sought to
correct his date of birth recorded at time of joining service in year
1965---Validity---Date of birth of civil servant recorded in
Secondary School Certificate and service record was the same---
Civil servant had not pursued the applications made in years 1966
and 1982 for correction of service record to their logical end---
Civil servant had not explained as to why he had slept over such
matter for decades, and why he had not got Secondary School
Certificate corrected from the concerned. Board---Such facts
militated against genuineness of stand taken by civil servant---Plea
of civil servant that in the year 1998, Department had refused him
N.O.C., for visiting India to collect Birth Certificate appeared to be
an afterthought to confuse and confound one issue with another,
"particularly when same too had not been raised and pursued
wholeheartedly at right time---Such was clearly case of estoppel by
conduct, which would bar civil servant from seeking relief prayed

Peshawar High Court

 2430
for at such belated stage---Date of birth once recorded at time of
joining Government service would be final by virtue of R. 12-A of
the Rules.---Court dismissed Constitutional petition being,
misconceived.

Government of Pakistan and another v. Dada Amir Haider Khan

PLD 1987 SC 504; Sobho Gian Chandani v. Federation of Pakistan
and 8 others 1996 MLD 1569; S. Munawar Ali Sher v. Federation
of Pakistan through Ministry of Interior Government of Pakistan
and 3 others PLD 1999 Lah. 459; Malik Mushtaq Awan v.
Government of Pakistan and others PLD 1999 Lah. 372 and Khalid
v. Chief Secretary, Punjab and another 1994 SCMR 1633 ref

Zulftqar Ali v. H. Kamal Hussain and others Election Appeal No. 1

of 1994 distinguished.

(b) Civil service-

---- Date of birth---Seeking correction of date of birth by civil

servant at the verge of his retirement---Purpose---Just to prolong
their tenure and enjoy perks and privileges of their service at the
costs of others---Such idea either never creeps in their mind earlier
or is never taken seriously and pursued to desired end.

(c) Civil service-

---- Date of birth entered- in National Identity Card as well as

Secondary School Certificate---Preference---Entry made in
Secondary School Certificate was more authentic and reliable
document as compared to former.

Zulfiqar Ali v. H. Kamal Hussain and others Election Appeal No. 1

of 1994 ref.

Yahya Khan Afridi for Appellant.

Hamid Farooq Durrani, D.A.-G. for Respondents

Peshawar High Court

 2431
Date of hearing: 11th December, 2002.

JUDGMENT

EJAZ AFZAL KHAN, J.---Mr. Khalil Ahmad Siddiqui,

petitioner herein, joined service in Customs Collectorate Lahore in
the ministerial cadre on 27-12-1965 and was posted as such at
Layalpur. Later on he was transferred to Kohat and after having
served in various capacities in different parts of the N.-W.F.P., was
now serving as an Assistant Collector Pakistan Customs Dry Port
Peshawar that he instituted the instant. Constitutional petition for
the correction of his date of birth which, according to him, was 19-
12-1944 instead of 19-12-1941. Another additional prayer he made
in the writ petition was that he be allowed to visit India so that he
may collect his birth certificate as, according to the averments
trade in the petition, he was born at Bijnoor.

2. The learned counsel appearing on behalf of the petitioner after

reiterating the facts mentioned above contended that the petitioner
soon after joining service proceeded with all the reasonable
dispatch by moving an application on 31-3-1966 for the correction
in his service record and once again picked up the thread on 22-12-
1982 by moving another application but in vain, as the High-Ups
did not respond thereto. The learned counsel next contended that
the request of the petitioner made through an application dated 30-
10-1998 for grant of N.O.C. to visit India for collecting the birth
certificate too was. not countenanced by the High-Ups of the
Department, which could have enabled him to furnish proof in this
behalf, as many of his relatives are still residing in Bijnoor, a place
in Uttar Pardesh India. The learned counsel on the strength of the
judgment rendered in Election Appeal No. 1/94 in the case of
Zulfiqar Ali. v. H. Kamal Hussain and others contended that
according to the entry made in the National Indentity Card which
is to be preferred over those in the School Leaving Certificate, the
petitioner was born on 19-12-1944 and, as such, he would reach
the age of superannuationt on 19-12-2004 instead of 19-12-2001.
The learned counsel by relying on the judgments in the cases of
Government of Pakistan and another. v. Dada Amir Haider Khan

Peshawar High Court

 2432
(PLD 1987 SC 504), Sobho Gian Chandani v. Federation of
Pakistan and eight others (1996 MLD 1569), S. Munawar Ali Sher
v. Federation of Pakistan through Ministry of Interior Government
of Pakistan and three others (PLD 1999 Lahore 459) and Malik
Mushtaq Awan. v. Government of Pakistan and others (PLD 1999
Lahore 372) contended that they petitioner could not have been
refused N.O.C. for visit to India for doing the needful.

3. The learned Additional Advocate-General appearing on behalf

of the respondents Nos. 1, 5 and 6 contended that when the
petitioner has slept over the entry in the service record, even if,
without conceding, it is assumed to be wrong, for almost two
decades, he cannot turn round at the fag end of his service to
question it, more so when he made no effort to get the entry as to
his date of birth corrected in his Secondary School Certificate
which is the basic document in this context. He by referring to
Rule 12-A of Civil Servants (Appointment, Promotion and
Transfer) Rules, 1973 contended that the date of birth once
recorded at the time of joining service shall be final once for all
and no alteration therein shall be permissible afterwards.

4. The learned counsel representing respondents Nos.2 and 3 by

placing reliance on the case of Mr. Khalid v. Chief Secretary
Punjab and another (1994 SCMR 1633) contended that correction
of date of birth involving terms and conditions of service
exclusively falls within the domain of Service Tribunal, 4 and this
Court in the exercise of its Constitutional jurisdiction cannot enter
into the relief, especially when it is prominently factual.

5. We have gone through the record, perused the judgments cited

at the bar and carefully considered the submissions of the learned
counsel for the parties.

6. A perusal of the record would reveal that the date of birth of the
petitioner was recorded as 19-12-1941 in the Secondary School
Certificate as well as the service record. It may be true that the
petitioner moved an application for the correction of his service
record in the year 1966 before his High-Ups but it is equally true

Peshawar High Court

 2433
that the said application was not pursued to its logical end. It is
also true that another application was moved in this behalf in the
year 1982 but again its left the halfway and never persued whole-
heatedly to the desired culmination. Why did the petitioner sit and
sleep over it for decades and decades together has not been
plausibly explained anywhere either in the writ petition or in
rejoinder or during the course of arguments addressed at the bar.
Why did the petitioner make no effort to get corrected the very
basic document of Secondary School Certificate from the Board
concerned is another circumstance which violently militates
against the genuineness of the stand adopted by him as to the date
of birth. If at all the petitioner was in know of some document
showing his actual date of birth lying somewhere in Bijnoor, he
could well have gone to India to fetch it in mid or late sixties. Why
did he postpone his purposeful visit to India till 1998 and why did
he not use the good offices of his relatives to have the same is yet
another question whose answer cannot be found either from the
record or the counsel representing the petitioner. It, is a matter of
fact, has become a common phenomenon and usual practice that
the Government Servants if and when they come at the verge of
their retirement, they question their dates of birth just to prolong
their tenure and enjoy the perks and privileges of their service for a
few more years at the cost of others. This idea never creeps across
their mind earlier and in case it does, it is never taken seriously and
pursued to the desired end. It is clearly and sequarely a case of
estoppel of conduct which will certainly bar and barricade the
petitioner from seeking the correction asked for at least at such a
belated stage.

7. The argument addressed on the strength of the judgment

rendered in the case of Zulfiqar Ali. v. H. Kamal Hussain and
others supra will, not advance the case of the petitioner, as in that
case probative value of School Leaving Certificate was in question
vis-a-vis the National Identity Card. But in this case, it is the entry
made in the National Identity card which is sought to be preferred
over the entry made in the Secondary School Certificate which is
certainly more authentic and more reliable document as compared
to the former. The argument that the petitioner could not have been

Peshawar High Court

 2434
refused N.O.C. for visiting India for doing the needful also appears
to be a product of an afterthought to confuse and confound one
issue with another particularly when that too was, not raised and
pursued wholeheartedly at the right time. The judgments cited at
the bar by the learned counsel for the petitioner are, therefore,
distinguishable and, as such, would not tend to advance the case
sought to be coned by him at the bar.

8. Apart from this, when a date of birth once recorded at the time
of joining Government service has been blessed with finality by
virtue of Rule 12-A of Civil 'Servants (Appointment, Promotion
and Transfer) Rules, 1973 which was inserted vide S.R.O.
No.521(I)/2000 date 31-7-2000, we do not think that the petitioner
can make any headway to success in this behalf anywhere either
before this Court or any other forum of the Country.

9. For the reasons discussed above, this petition being

misconceived is dismissed.

S.A.K./715/P
Petition dismissed.

Peshawar High Court

 2435

2003 P L C (C.S.) 1122

[Peshawar High Court]

Before Mian Shakirullah Jan, C.J. and Ejaz Afzal Khan, J

MUHAMMAD ZAHOOR and 43 others

Versus

GOVERNMENT OF N.-W.F.P. through Secretary, LG&RD

Department, Civil Secretariat, Peshawar and 6 others

Writ Petition No. 1084 of 1996, decided on 4th March, 2003.

(a) North-West Frontier Province Employees on Contract Basis

(Regularization of Services) Act (VIII of 1989)---

----S.2(b)(c)---Government of North-West Frontier Province Rules

of Business, 1985, R.3 & Sched. I, Colmn 2---North-West Frontier
Province Civil Servants (Regularization of Services) Act (I of
1988), S.5--Constitution of Pakistan (1973), Art. 199---
Constitutional petition--Regularisation of service---Appointment of
petitioners on contract basis against posts created in a Planning.
Cell under name of Strengthening of Local Government and Rural
Development Department---Refusal of respondents to extend
benefits of North-West Frontier Province Employees on Contract
Basis (Regularization of Services) Act, 1989 to petitioners by way
of regularizing their services of absorbing them in Department---
Validity---Legislature in its wisdom had assigned restrictive
meanings to expressions "Government Department" and "post" as
used in S. 2(b) & (c) of North-West Frontier Province Employees
on Contract Basis (Regularization of Services) Act, 1989---
According to R.3 of Government of North-West Frontier Province
Rules of Business, 1985, a Government Department not mentioned
in its Column No.2, Sched. I could not be construed as

Peshawar High Court

 2436
Department---Local Government and Rural Development
Department was a Department within meaning of S.2(b) of Act
(VIII of 1989), but the project on which petitioners had been
appointed was a cell, a section and not a Department itself ---
Petitioners' case was neither covered by any provision of Act VIII
of 1989 and Act I of 1988 nor same could be treated at par with ad
hoc employees regularised thereunder---Such project, wherein
petitioners had been appointed, was not in existence and its
employees were in surplus pool---No case was made out for
issuance of writ within terms of Art. 199 of Constitution or on
equitable considerations---High Court dismissed Constitutional
petition.

(b) North-West Frontier Province Employees on Contract Basis

(Regularization of Services) Act (VIII of 1989)---

----S.2(b)(c)---Constitution of Pakistan (1973), Art. 199---

Constitutional petition---Regularization of service---Appointment
of petitioners on contract basis against posts created in a Cell of
Government Department---Refusal of Government to amend the
Act on strength of judgment reported as 1993 SCMR 1124 and
extend benefits thereof to petitioners by way of regularizing their
services---Validity---Ratio of said judgment was that practice in
matter of recruitment and promotion etc., should be such as could
foster competence, discipline and efficiency in public service, and
that such objectives should not only be advanced, but to be
manifestly seen to have been advanced---Government could amend
law in order to regularise services of petitioners as there was
nothing in such judgment to restrain or prohibit amendment.

Musa Wazir v. N.-W.F.P. Public Service Commission 1993 SCMR

1124 ref.

Muhammad Zahaarul Haq for Petitioners.

Imtiaz Ali, A.-A.G. for Respondents.

Peshawar High Court

 2437
Date of hearing: 19th December, 2002.

JUDGMENT
EJAZ AFZAL KHAN, J.---To streamline Planning,
execution and monitoring of development project and lo cope with
their even increasing heavy work load, the Government of N.-
W.F.P., respondent No. 1 herein, created a Planning Cell under the
name of Strengthening of the Local Government and Rural
Development Department through a formal PC-1 and pursuant
thereto advertised the posts of Planning Officers and stenographers
etc., in various newspapers and thus invited applications from the
eligible candidates therefore. Two Selection Boards, one for
conducting interviews for the posts of BPS-16 and above and other
for the posts of BPS. 5 to 11 were constituted by respondent No. 1.
On their Selection by the Board, the petitioners were appointed by
respondent No. 1 with the approval of the Add]. Chief Secretary,
respondent No.4 before this Court, on contract basis for a period of
six months with effect from 1-11-1988 with the conditions that
respondent No. 1 will place the requisition in respect of all posts in
BPS-16 and above before the Public Service Commission. The
period was further extended upto 30-6-1990. However, during this
span of time the petitioners drew their pay out of Development
budget. In the meantime, the N.-W.F.P. Employees on Contract
Basis (Regularization of Services) Act No. VIII of 1989 was
passed by the Provincial Assembly but somehow or the other, its
benefit was not extended to the petitioners.

2. When the petitioners despite several representations to the high-

ups, in this behalf, failed to achieve the desired objective, they
filed the instant writ petitions bearing Nos.1084/96, 82/97 and
1338/98. As a common question of law and facts are involved in
these petitions, they are disposed of by this single judgment.

3. The learned counsel appearing for the petitioners contended that

though the appointment of the petitioners was contractual
nonetheless their selection was made on regular basis after
complying with all the codal formalities thus their case is by no

Peshawar High Court

 2438
means distinguishable from that of other ad hoc appointees whose
services have been regularized by the Act mentioned above, as
such they cannot be treated in a manner which is not only different
but discriminatory as well on the face of it and therefore, their
services be directed to be regularized. The learned counsel by
referring to the summary proposing amendments in the law and the
views expressed by the Secretary Law declining to endorse it on
the strength of the judgment rendered in the case of Musa Wazir v.
N.-W.F.P. Public Service Commission (1993 SCMR 1124),
contended that the Secretary failed to appreciate the ratio of that
case and thus wrongly applied it to the case in hand without there
being any relevance thereto. At last the learned counsel argued
that, the petitioners who have spent best of their life and talent in
the Department deserve regularization even on equitable grounds.

4. As against that Mr. Imtiaz Ali, the learned Addl. Advocate

General contended that the case of the petitioners is not similar to
that of ad hoc appointees regularized under the Act, firstly because
none of them was appointed under section 5 of the Act I of 1988
against a post as defined in the N.-W.F.P. Civil Servants
(Regularization of Services) Act I of 1988 or post in a Government
Department as defined under section 2(b) & (c) of the N.-W.F.P.
Act VIII of 1989, secondly because none of them was paid from
the Provincial exchequer and thirdly because the project they were
appointed for is not only out of existence but its employees also are
now in surplus poll.

5. We have gone through the record and weighed with attention the
contentions raised by the learned counsel for the parties. Before we
discus and appreciate the case canvassed at the bar by the learned
counsel for the parties, it is worthwhile to reproduce the relevant
definitions of the expressions post and the Government
Department which read as under:

"2. Definitions: ---In this Act unless the context otherwise

requires:

(a) ......................

Peshawar High Court

 2439
(b) "Government Department" means any Department
constituted under Rule 3 of the Government of the North-
West Frontier Province Rules of Business, 1985, and does
not include any section of a Department or an organization
which is federally funded;

(c) "post" means a post in any Government Department;

6. Appraisal of the above mentioned definition will reveal that the

Legislature in its wisdom has assigned restricted meanings to the
expression Government Department and post. A Government
Department which according to Rule 3 of the Government of N.-
W.F.P. Rules of Business, 1985 does not find mention in its
column No.2 Schedule 1 cannot be construed as Department. No
doubt the Local Government and Rural Development Department
is a Department within the meaning of section 2(b) of the Act No.
VIII of 1989 but its section, as is evident from its bare reading is
certainly excluded therefrom as the project wherefore the
appointments or the petitioners were made on contract basis was
admittedly a Cell or to use the statutory parlance, a section of and
nor a Department itself. The very effort of the petitioners in
collaboration with the Department to get the law suitably amended
so to absorb them in the Department amply rather eminently
indicates that the case of the petitioners was not covered by the
umbrella of the Act and was in fact, outside its scope, therefore,
they could not have claimed their absorption in the Department or
asked for the regularization of their services under any of the
enactments referred to above. The case of the petitioner in Writ
Petition No.82 of 1997 also goes outside the purview of section
2(b) of the Act as admittedly the Department she is employed in is
federally funded. The Court is, but helpless to issue any of the
writs asked for because the case of the petitioners as canvassed at
the bar does not attract or fulfil any of the requirements of Article
199 of the Constitution of Islamic Republic of Pakistan, 1973 as
their case is not covered by any of the provisions of the Acts
referred to above, hence their case cannot be held to be similar to
that of the ad hoc appointees regularized under the Act for the
reasons befittingly enumerated by the learned Additional Advocate

Peshawar High Court

 2440
General, more so when the very project they were appointed for is
out of existence and its employees arc now in a surplus pool.

7. The Government could have, if it had so desired, amended the

law in order to regularise the services of the petitioners as there
was nothing in the dictum laid down in the case of Musa Wazir
supra to restrain or prohibit such amendment. The ratio of the
aforesaid judgment was that the practice in the matter of
recruitment and promotion etc. should be such as could foster
competence, discipline arid efficiency in the public service and that
these objectives should not only be advanced but to be manifestly
seen to be advanced.

8. When the case of the petitioners is neither covered by the Act

No. VIII of 1989 nor any other law in the field requiring
regularization of their services nor it can be held to be at par with
the ad hoc employees regularised thereunder, we do not think that
a case for the issuance of a writ within the terms of Article 199 of
the Constitution of Islamic Republic of Pakistan, 1973 or even on
equitable considerations is made out.

9. For the reasons discussed above, these writ petitions being

without merit are dismissed.

S.A.K./732/P
Petitions dismissed.

Peshawar High Court

 2441

2003 Y L R 1507(2)

[Peshawar]

Before Tariq Pervez Khan and Ejaz Afzal Khan, JJ

AMANUL MULK and another---Petitioners

Versus

THE STATE---Respondent

Writ Petition No.1176 of 2002 and. Civil Miscellaneous No.17 of

2003, decided on 27th February, 2003.

(a) Constitution of Pakistan (1973)---

----Art.13(a)---Criminal Procedure Code (V of 1898),

S.403---Protection against double prosecution or
punishment---Application---In order to attract the application of
S.403. Cr.P.C. and Art.13(a) of the Constitution which are
grounded on the maxim: "Nemo debet bis vexari pro una et eadem
causa " envisaging that a man shall not be brought into danger for
one and the same offence more than once, it is essential that the
offender must have been prosecuted in accordance with law by a
Court of competent jurisdiction.

(b) General Clauses Act (X of 1897)---

----S.26---Principle contained in S.26 of the General Clauses Act,

1897 comes into play when an act or omission constitutes an
offence under two or more Enactments.

(i) Interpretation of statutes---

Peshawar High Court

 2442
---- Where meaning and terms of a statute are clear, even a long
and uniform course of interpretation may be overruled if that is not
in line with the statute itself.

(d) Control of Narcotic Substances Act (XXV of 1997)---

---S.9---Customs Act (IV of 1969), S.156(1)(89)---Constitution of

Pakistan (1973), Arts. 13(a) & 199---Criminal Procedure Code (V
of 1898), Ss. 403 & 561-A---Constitutional petition---Double
jeopardy challenged---Accused, after having served out their
sentences awarded to them by the Special Court under
S.156(1)(89) of the Customs Act, 1969, had been summoned by
the Special Court constituted under the Control of Narcotic
Substances Act, 1997, for trial under S.9 of the said
Act---Validity---To bar second trial on the basis of the principle of
double jeopardy as contained in S.403, Cr.P.C. or Art.13(a) of the
Constitution, Court trying the accused for the first time must be a
Court of competent jurisdiction--Special Court Customs was not at
all competent to try the accused in the case--Offence connected
with the narcotics could be tried only under the provisions of the
Control of Narcotic Substances Act, 1997, in the Court established
thereunder to the exclusion of the Court established under any
other law---Trial of accused under S.9 of the Control of Narcotic
Substances Act, 1997, by the Court having exclusive jurisdiction in
the matter, therefore, was not hit by the principle of double
jeopardy---Conviction and sentence of accused awarded by the
Judge Special Court Customs were consequently quashed being
coram non judice, under S.561-A. Cr. P. C,--Since the accused had
already undergone a sentence of more than five years, Special
Court was directed to consider the same if a case for conviction
was made out against them---Constitutional petition was disposed
of accordingly.

Sabir Aziz v. Sessions Judge, Lahore 2000 PCr.LJ 204; State v.

Hadi Bakhsh 1981 SCMR 1008 and Sherin Bacha v. Namoos Iqbal
and 3 others PLD 1993 SC 247 distinguished.

Peshawar High Court

 2443
Umri Khoja v. The State and 2 others 2000 PCr.LJ 1002 and State
v. Naseem Amin Butt 2001 SCMR 1083 ref.

(e) Maxim---

------ Nemo debet bis vexan pro una ei eadem causa

"---Application of.

Shaukat Ali for Petitioner.

Salahuddin Khan, D.A.-G. and Musarrat Halali, Add1.A.-G. for

the State.

Date of hearing 27th February, 2003.

JUDGMENT

EJAZ AFZAL KHAN, J.---The petitioners who were proceeded

against on the indictment of smuggling huge quantity of heroin in a
case registered against them under sections 156(1)(89)-2(s) of the
Customs Act, 1969, vide F.I.R. No.56 dated 10-8-1997, Police
Station I & P, Peshawar, by the learned Special Judge, Court,
Customs, Taxation and Anti-Smuggling, N.-W.F.P., Peshawar,
were convicted and sentenced to 5 years' R.I. with a fine of
Rs.3,00,000 each, in default of payment of fine to undergo 1-1/2
years' S.I., vide judgment dated 2-6-1998.

2. When despite serving out the aforesaid sentence, they were not
released and instead were summoned by the learned Judge Special
Court for trial under section 9, CNSA (hereinafter called the Act)
for the same offence, the petitioners Moved an application under
section 265-K, Cr.P.C. for their acquittal mainly on the ground that
they could not have been tried for the same offence twice, which
was, however, dismissed by the learned Judge Special Court vide
his order dated 16-9-2002, hence this petition under Article 199 of
the Constitution of Islamic Republic of Pakistan, 1999 read with
section 561-A, Cr.P.C.

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 2444
3. The learned counsel appearing on behalf of the petitioners
contended that the petitioners once prosecuted and punished for
smuggling of incriminating material under the Customs Act by the
learned Judge Special Court Customs, could not have been
proceeded against for the same offence as his second trial is hit by
section 403, Cr.P.C., section 26 of the General Clauses Act and
Article 13(a) of the Constitution of Islamic Republic of Pakistan,
1973. The learned counsel to support his contentions placed
reliance on the cases of Sabir Aziz v. Sessions Judge, Lahore
(2000 PCr.LJ 204); Umri Khoja v. The State and 2 others (2000
PCr.LJ 1002); State v. Hadi Bakhsh (1981 SCMR 1008) and that
of Sherin Bacha v. Namoos Iqbal and 3 others (PLD 1993 SC 247).

4. On other hand, Miss Mussarat Hilali, Additional

Advocate-General and Mr. Salahuddin, Deputy Attorney-General,
appearing on behalf of the State contended that the offence
committed under the Customs Act, 1969 and the one committed
under the Act are two different and distinct offences as such the
learned Judge Special Court has rightly dismissed the application
of the petitioners under section 265-K, Cr.P.C.

5. We have gone through the record and carefully considered the

submissions of the learned counsel for the parties.

6. The argument that the petitioners once prosecuted before and

punished by the learned Judge Special Court Customs for
importing into and transporting narcotics within Pakistan could not
have been prosecuted again for the same offence under the Act, is
absolutely misconceived, because in order to attract the application
of section 403, Cr.P.C. and Article 13(a) of the Constitution which
are grounded on the common law maxim, 'nemo debet bis vexari'
envisaging that a man shall not be brought into danger for one and
the same offence more than once, it is essential that offender must
have been prosecuted in accordance with law by a Court of
competent jurisdiction. Similarly the principle contained in section
26 of the General Clauses Act comes into play when an act or
omission constitutes an offence under two or more enactments. But
since an offence of importing into, exporting from or transporting

Peshawar High Court

 2445
narcotics within Pakistan notwithstanding the provisions of the
Customs Act or any other law for the time being in force is an
offence only under the Act in view of its provisions contained in
sections 7, 8 and 9, it is exclusively triable by a Court established
thereunder in view of the provisions contained in sections 45, 46
and 72 of the said Act which are reproduced for the facility of
reference and thus run as under:--

7. Prohibition of import or export of narcotic drug,

etc.---(1) No one shall--

(a) import into Pakistan;

(b) export from Pakistan;

(c) transport within Pakistan; or

(d) tranship,

any narcotic drug, psychotropic substance or controlled

substance, save in accordance with rules made under
subsection (2) and in accordance with the conditions of any
licence, permit or authorization for that purpose which may
be required to be abetment under those rules.

(2) The Federal Government may make rules permitting

and regulating the import into and export from Pakistan,
transport within Pakistan and transshipment of narcotic
drugs, psychotropic substance or controlled substances, and
such rules may prescribe the ports or places at which any
kind of narcotic drug, psychotropic substance or controlled
substance may be imported, exported, transported within
Pakistan or transhipped, the form and conditions of licence,
permit or authorities by which such licences, permits or
authorization may be granted, the fees that may be charged
therefore, any other matter required to have effective
control of the Federal Government, over such import,
export, transportation and transhipment.

Peshawar High Court

 2446
Prohibition on trafficking or financing the trafficking of
narcotic drugs, etc.---No one shall--

(a) organize, manage, traffic in, or finance the import,

transport, manufacturing or trafficking of, narcotic drugs,
psychotropic substances or controlled substances;

(b) use violence or arms for committing or attempt to

commit an offence punishable under this Act.

9. Punishment for contravention of sections 6, 7 and

8.---Whoever contravenes the provisions of sections 6, 7 or
8 shall be punishable with--

(a) imprisonment which may extend to two years or with

fine or with both, if the quantity of the narcotic drug,
psyclhotropic substance or controlled substance is one
hundred grams or less;

(b) imprisonment which may extend to seven years and

shall also be liable to fine, if the quantity of the narcotic
drug, psychotropic substances or controlled substance
exceeds one hundred grams but does not exceed one
kilogram;

(c) death or imprisonment of life or imprisonment for a

term which may extend to fourteen years and shall also be
liable to fine which may be up to one million rupees. If the
quantity of narcotic drug, psychotropic substance or
controlled substance exceeds the limits specified in clause
(b):

Provided that if the quantity exceeds ten kilograms the

punishment shall not be less than imprisonment for life.

45. Jurisdiction to try offences.---The Special Court

established under this Act shall have the exclusive
jurisdiction to try an offence cognizable under this Act.

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 2447
46. Establishment of Special Courts.--The Federal
Government and if so directed by the Federal Government,
the Provincial Government shall, by notification in the
official Gazette, establish as many Special Courts as it
considers necessary and appoint a Judge for each of such
Courts and where it establishes more than one Special
Courts, it shall specify in the notification the place of
sitting of each Special Court and the territorial limits within
which it shall exercise jurisdiction under this Act.

(2) There shall be two classes of Special Courts to try

offences under this Act namely:--

(i) Special Courts having the power to try all offences; and

(ii) Special Courts having the power to try offences

punishable with imprisonment for two years or less.

(3) No person shall be appointed a Judge of a Special Court

referred to--

(i) in subsection (2)(i) unless he is or has been a Sessions

Judge or an Additional Sessions Judge; and

(ii) in subsection (2)(ii) unless he is a Judicial Magistrate of

the First Class.

(4) A person shall be appointed as Judge of a Special Court

after consultation with the Chief Justice of the High Court
of the Province in which the Special Court is established.

(5) The Federal Government or the Provincial Government

may, in consultation with the Chief Justice of the High
Court, confer the powers of Special Court referred to--

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 2448
(i) in subsection (2)(i), on any Sessions Judge or Additional
Sessions Judge; and

(ii) in subsection (2)(ii) on any Judicial Magistrate of the

First Class.

72. Application of the Customs Act 1969.---All

prohibitions and restrictions imposed by or under this
Ordinance on the import into, export from Pakistan and
transhipment of narcotic drugs, psychotropic substances or
controlled substances shall be deemed to be prohibitions
and restrictions imposed by or under the Customs Act,
1969 (IV of 1969), and the provisions of this Act shall
apply accordingly:

Provided that, notwithstanding anything contained in the

Customs Act, 1969 (IV of 1969), or any other law for the
time being in force, all offences relating to narcotic drugs,
psychotropic substances or controlled substances shall be
tried under the provisions of this Act:

Provided further that where the Officer of Customs

apprehend a person involved in any offence relating to
narcotic drugs, psychotropic substances or controlled
substance shall be empowered to carry out inquiry and
investigation in the same manner as an officer authorized
under this Act.

7. From the above quoted provisions it is quite clear that the

learned Judge Special Court Customs was not competent to
proceed against and punish the petitioners as even the offence of
importing into, exporting from, transportation within Pakistan or
transhipment of any narcotic drugs, psychotropic substances or
controlled substances has been made punishable under the Act, and
as such is exclusively triable under section 45 by a Court
established under section 46 of the Act, moreso when the proviso
to section 72 of the Act clearly provides that all the offences
relating to narcotics drugs etc. notwithstanding the provisions of

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 2449
the Customs Act,-shall be tried under the provisions of the Act.
The cases of Sabir Aziz v. Sessions Judge, Lahore and Umri Khoja
v. The State (supra) relied upon by the learned counsel for the
petitioners will be of no help to him because of their being per
incurium for having been rendered in disregard of the express
provisions of the Act as quoted above, therefore, have neither
binding nor even persuasive value. Needless to say that where
meaning and terms of a Statute are clear even a long and uniform
course of interpretation may be overruled if that is not in line with
the Statute itself. The cases of State v. Hadi Bakhsh and Sherin
Bacha v. Namoos Iqbal and 3 others (supra) will also do little to
advance the case of the petitioners convassed at the bar as in those
cases the earlier verdicts were given by the Courts of competent
jurisdiction which is not the case here as in view of the provisions
referred to above the Special Court Customs was not at all
competent to try the instant case. To bar second trial on the basis of
the p principle of double jeopardy as contained to section 403,
Cr.P.C. or Article 13(a) of the Constitution, the Court trying the
accused for the first time must be a Court of competent
jurisdiction. In the case of State v. Naseem Amin Butt (2001
SCMR 1083) it was held that the accumulative effect of reading
the provisions contained in sections 6, 7, 8, 9, 72, 73 and 74 of the
Act, and the Customs Act is that an offence connected with the
narcotics could be tried only under the provisions of this Act in a
Court established thereunder to the exclusion of the Court
established under any other law.

8. We, therefore, have no hesitation to hold that the trial of the

petitioners under section 9 of the Act, by a Court having exclusive
jurisdiction under section 45 and established under section 46 of
the Act, is not hit by the principle of double jeopardy. However,
his conviction and sentence awarded by the learned Judge Special
Court Customs being coram non judice cannot be allowed to be
maintained. We, therefore by exercising our power under section
561-A, Cr.P.C. quash the sentence and, conviction awarded by the
learned Judge Special Court. Since the petitioners have undergone
a sentence of more than 5 years, we also for the ends of justice
hold that the learned Judge Special Court, (sic) his view ' a case for

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 2450
conviction is made out and consider the sentence so served out by
the petitioner. This petition is thus disposed of in the above terms
and these are the detailed reasons for our short order dated
27-2-2003.

N.H.Q./734/P
Order accordingly.

Peshawar High Court

 2451

2003 Y L R 1975

[Peshawar]

Before Ejaz Afzal Khan and Fazul ur Rehman, JJ

KHAN GUL---Petitioner

Versus

THE STATE through Home Secretary and 5 others---

Respondents

Writ Petition No. 132 of 1999, decided on 5th November, 2002.

(a) Frontier Crimes Regulation (III of 1901)---

----S.8---Civil Procedure Code (V of 1908), S.20---Constitution of

Pakistan (1973), Art. 199---Constitutional petition---Proceedings
initiated against petitioner, (resident of settled area) in respect of
business dispute before Assistant Political Agent---Contention of
respondent was that origin for initiating such proceedings was
agreement between the parties---Validity---Respondent's
application showed that alleged business transaction had taken
place outside tribal area i.e. partly in foreign country and partly tit
the settled area---Proceedings against petitioner could not he
initiated in tribal area, where neither pause of action had arisen nor
he resided--Where cause of action had arisen in settled area
respondent could seek his remedy only in a Court of law within
territorial limits of whose jurisdiction defendant resided or cause of
action had arisen---Nobody could be allowed to take his lis to a
Court of his choice in an outright defiance of well-established
principles regulating territorial jurisdiction of Courts---Only law
and not agreement between the parties conferred jurisdiction oft a
Court or Tribunal that too when the agreement did not appear to be

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 2452
volitional---High Court allowed Constitutional petition and
declared such proceedings as without jurisdiction and lawful
authority.

Nabi Bakhsh and another v. The State through Collector, D.I. Khan
and others PLD 1991 Pesh. 10; Haji Ghulam Sarwar and others v.
Pir Akbar and 3 others 2000 MLD 1643 and Dilawar and another
v. Political Agent, Khyber Agency and 3 others 2002 PCr.LJ 1703
rel.

Shaukat Khan v. Assistant Political Agent, Landi Kotal and others

PLD 2002 SC 526 distinguished.

(b) Jurisdiction---

---- Nobody could be allowed to take his lis to a Court of his

choice in aft outright defiance of well-established principles
regulating territorial jurisdiction of Courts---Only law and not
agreement between the parties conferred jurisdiction oft a Court or
Tribunal that too when the agreement did trot appear to be
volitional.

Khawaja Nawaz Khan for Petitioner.

Shaukat Hayat Khakwani, D.A.-G. for Respondents Nos.2 and 3.

Zaffar Abbas Zaidi for Respondents Nos.4 to 6.

Date of hearing: 1st November, 2002.

JUDGMENT

EJAZ AFZAL KHAN, J.---The petitioner through instant petition

has questioned the proceedings pending adjudication before the
Assistant Political Agent, South Waziristan Agency, Ladha which

Peshawar High Court

 2453
was initiated on the application of Khair Muhammad, respondent
No.4 herein.

2. The learned counsel appearing on behalf of the petitioner

contended that the petitioner has no concern whatever with the
business transacted between Khair Muhammad and Mumtaz,
respondents Nos.4 and 6 herein, therefore, the proceedings against
him being motivated by malice and mala fide is coram non judice.
The learned counsel next contended that if at all, without
conceding, there was any business transaction that having taken
place outside the tribal area cannot be enquired into by the A.P.A.
The learned counsel to support his contention placed reliance on
the case Nabi Bakhsh and another v. The State through Collector,
D.I. Khan and others (PLD 1991 Peshawar 10); Haji Ghulam
Sarwar and others v. Pir Akbar and 3 others (2000 MLD 1643) and
the case of Dilawar and another v. Political Agent, Khybar Agency
and 3 others (2000 PCr.LJ 1703).

3. The learned counsel appearing on behalf of the respondent No.4

contended that the initiation and even continuation of the
proceeding, before the A.P.A. has their origin in the agreement of
the parties, therefore, there is nothing wrong or illegal about them.

4. The learned Deputy Advocate-General also supported the

arguments of the learned counsel for the respondent by placing
reliance on the case of Shaukat Khan v. Assistant Political Agent,
Landi Kotal and others (PLD 2002 SC 526).

5. We have gone through the record and carefully considered the

submissions of the learned counsel for the parties.

6. Admittedly, as is apparent from the application of the

respondent, the business transaction, if true, had taken place
outside the tribal area, as a part of it took place in Saudi Arabia and
a part thereof at Tank. How the proceedings could be initiated
against the petitioner in the tribal area when neither the cause of
action has arisen nor petitioner resides therein is a fact which does
not find any plausible explanation from the record. It is well-

Peshawar High Court

 2454
established principle of law that a lis will be tried in a Court of law
in the territorial limits of whose jurisdiction the defendant resides
or cause of action has taken place. When neither of the conditions
is fulfilled, we are afraid, the proceeding before the Assistant
Political Agent has to be looked askance at. The very absence of an
explanation in this behalf would taint the entire proceeding with
mala fide and would thus make that coram non judice. In the case
of Nabi Bakhsh v. State, supra, it was held that mere fact that one
of the parties to the dispute originally belonged to tribal area would
not confer jurisdiction on the Political Authorities nor take away
the jurisdiction of the ordinary civil and criminal Courts, within
whose jurisdiction the subject-matter of dispute situates, the
transaction has taken place the party resides or the cause of action
has arisen, more so when, forum provided in the latter case
satisfies the basic and fundamental requirements of law in
administration of justice. In the case of Haji Ghulam Sarwar and
another v. Pir Akbar Din and 3 others, supra, an almost similar
view was expressed by this Court. In the case of Dilawar and
another v. Political Agent, Khyber Agency, supra, this Court after
considering a string of judgments of the High Courts and the apex
Court reiterated the same view which merits reproduction and thus
runs as under:--

"Although this Court time and again has held that even if
one of the parties belongs to the tribal area, if the dispute is
of civil nature and the business transaction had taken place
in the settled area and nothing was done by the patties in
tribal area, the recourse should be had to the normal Civil
Courts within whose territorial jurisdiction cause of action
had accrued. Similarly if a crime is committed in settled
area, a person guilty of offence cannot be picked
up/arrested from the settled area and tried by the Political
Authorities under the F. C. R., but the Political Authorities
in the tribal area without caring for the law applicable and
the judgment of this Court as well as Supreme Court of
Pakistan malafidely assume jurisdiction in the matters,
harass and humiliate the peaceful citizens though they do
not have jurisdiction in such matters. This practice has

Peshawar High Court

 2455
gained momentum because there appears to be no check on
their unlimited powers which they have themselves
assumed."

7. A perusal of the above quoted paragraph would reveal that

where the cause of action has arisen in settled area respondent
could seek his remedy only in a Court of law within the territorial
limits of whose jurisdiction the defendant resides or the cause of
action has arisen. Nobody can be allowed to take his lis to a Court
of his choice in an outright defiance of the well-established
principles regulating the territorial jurisdiction of Courts.

8. The argument of the learned counsel for the respondent that the
initiation or even continuation of the proceeding before the A.P.A.
has its origin to the agreement of the parties has not impressed us
to the least, as it is law and not agreement of the parties which
confers jurisdiction on a Court or Tribunal that too when the
agreement, so called, does not appear to be volitional.

9. The judgment rendered in the case of Shaukat Khan v. Assistant

Political Agent, Landi Kotal, supra, cited at the bar by the learned
Deputy Advocate-General has no relevance to the case in hand
because in that case no such question of jurisdiction was in focus.

As neither petitioner resides in the tribal territory nor the cause of

action has arisen, therein, we have no other option but to allow this
petition and declare the proceeding before the learned Assistant
Political Agent as without jurisdiction and lawful authority to the
extent of the petitioner.

S.A.K./815/P
Petition allowed.

Peshawar High Court

 2456

P L D 2004 Peshawar 285

Before Nasir-ul-Mulk and Ejaz Afzal Khan, JJ

Messrs SARHAD FOOD PROCESSORS through Managing

Partner---Petitioner

Versus

EXCISE AND TAXATION OFFICER-II, PESHAWAR and 3

others---Respondents

C.M. Ne.691 of 2001 with Writ Petition No.605 of 2001, decided

on 17th June, 2004.

West Pakistan Urban Immovable Property Tax Act (V of

1958)---

----Ss. 2, 3, 4, 7 & Sched. [as amended by N.-W.F.P. Finance Act

(III of 1997)]---North-West Frontier Province Small Industries
Development Board Act (II of 1973), S. 31---N.-W.F.P.
Government Notification No. S.O. (LG-1) LG-12(33)/76(1) dated
July, 1978---Constitution of Pakistan (1973), Art. 199---
Constitutional petition ---Vires of change, of mode and method for
the assessment of property tax by extending the gamut of West
Pakistan Urban Immovable Property Tax Act, 1958 over the
industrial buildings situate in the Small Industrial Estate---
Contentions of the petitioners were that they being lassees and not
owners of the plots in the Industrial Estate and they having raised
their industrial buildings on them in terms of S. 2,(e) West
Pakistan Urban Immovable Property Tax Act, 1958, could not be
subjected to the levy of the property tax; that when the Small
Industrial Board was an independent authority in terms of S.31, N.-
W.F.P. Small Industries Development Board Act, 1973 which had
already subjected the petitioners to administration, maintenance
.and service, charges, they could not be subjected to yet another tax
as it would amount to double taxation specially when the Industrial

Peshawar High Court

 2457
Estate had not been notified to bean urban area and no civic
facilities were provided to them by the Municipal Corporation and
thus levy of Property Tax and the notices for demand issued
pursuant to the amended provision of the West Pakistan Urban
Immovable Property Tax Act, 1958 were ultra vires, un-
Constitutional and illegal deserving to be struck down---Validity---
Held, industrial buildings in every part of the country or for that
matter any building which was earning profit was subjected to the
levy of property tax---Imposition of the tax, in the present case,
was apprehended all along even by the Small Industries
Development Board and that was why clause in the agreement
between the Board and lessee was specifically inserted and
accepted by the petitioners which clearly stipulated that "all the
charges, taxes, assessments, premiums, rates including water rates
and outgoings whatsoever now or hereafter imposed, levied or
charged- by any authority upon, in connection with or in respect of
the demised property and the buildings and structures erected
thereon, shall be paid by the lessee"--Contention of the petitioners
that Small Industrial Development Board being an independent
authority had already subjected the petitioners to. service charge
etc. therefore, they could not be subjected to yet another tax, thus
had no force---Lease of petitioners being spread over a period of
99 years, would bring their case within the mischief of lessees in
perpetuity and "perpetuity" meant a fairly long time---Small
Industrial Estate vide N.W.F.P. Government Notification No. S.O.
(LG-1)/LG/2(33)/7611) dated July 1978 fell within the urban area-
--Nothing having been convincingly canvassed at the bar to show
that any of the amended provisions of the West Pakistan Urban
Immovable Property Tax Act, 1958 or its extension to the
Industrial Estate was either illegal un-Constitutional or ultra vires,
the impugned provisions could not be struck down.

Jamshaid Waheed v. Government of, Punjab through Secretary,

Excise and Taxation Lahore and 5 others PLD 2001 Lah. 395 and
National Detergents Ltd. and others v. The Province of Sindh and
another 1988 SCMR 1214 distinguished.

Peshawar High Court

 2458
Government of N.-W.F.P. and others v. Haji Muhammad Afzal Zia
Civil Appeal No.437 of 1999 fol.

Abdur Rauf Rohaila for Petitioners

Imtiaz Ali, A.A.-G. for Respondents.

Date of hearing: 20th May, 2004.

JUDGMENT

EJAZ AFZAL KHAN, J.---With the enforcement of Finance Act,

1997 (N -W.F.P. Act No.I1I of 1997) on 7th July, 1997, sections 2,
3, 4 and 7 of the West Pakistan Urban Immovable Property Tax
Act, 1958 (W.P. Act No.V of 1958) were amended with the
addition of the schedule classifying the urban and its rating areas,
lands and buildings therein and prescribing the amount of the tax
levied thereon. When the amendments alongwith the schedule
besides changing the mode and method for the assessment of
property tax also extended the gamut of the Act over the industrial
buildings situate even in the Small Industrial Estate, the petitioners
mentioned their vires through Constitutional petitions Nos. 605,
606, 607, 608, 832, 833, 834, 835 of 2001 and 713 of 2003. Since
a common question of law .is involved in all these petitions, they
are disposed of by this single judgment.

2. It was argued by the learned counsel fort a petitioners that the

petitioners are lessees and not owners of the plots, they raised their
industrial buildings on, in terms of section 2(e) of the Act,
therefore, they cannot be subjected to the levy of the property tax.
The learned; counsel next argued that when the Small Industries
Development Board is an independent authority, in terms of
section 31 of the N.-W.F.P. Small Industries Development Board
Act, 1973 (N.-W. F. P. Act No. II of 1973) and has already
subjected the petitioners to administration, maintenance and
service charges, they cannot be subjected to yet another tax as it
would amount to double taxation especially when no civic
facilities are provided to them by the Municipal Corporation

Peshawar High Court

 2459
Peshawar, therefore, the amendments and the notices for demand
issued pursuant; thereto for payment of the property tax being ultra
vires, un-Constitutional and illegal be struck down. The petitioners
counsel to support his contention placed reliance on the case of
Jamshaid Waheed v. Government of Punjab through Secretary
Excise and Taxation Lahore and 5 others PLD 2001 Lah. 395 and
National Detergents Ltd. and others v. The Province of Sindh and
another 1988 SCMR 1214. If the amendments in the Act V of
1958, the learned counsel urged in the alternative, are assumed for
a while to have been validly legislated piece of law even then the
petitioners cannot be subjected to the levy of the property tax,
when the Small Industrial Estate has not been notified to be an
urban area.

3. As against that, the learned A.A.-G. appearing on behalf of

respondents Nos.1 and 3 argued that when the petitioners are
lessees in perpetuity, they are owners, in terms of section 2(e) of
the Act, of the industrial buildings, they have raised in, the Small
Industrial Estate, therefore, they have rightly been subjected to the
levy of property tax. The learned A.A.-G. next argued that when
all the amendments have been competently legislated and none of
them is either discriminatory or violative of the Constitutional
provisions, they cannot be struck down on any count. He by
referring to clause 2(iv) of the lease agreement between the
petitioners and the Board, submitted that the latter despite being an
independent authority has not excluded the payment of charges and
taxes etc. as could be levied by the Government or local authority.

4. We have gone through the record carefully and considered the

submissions of the learned couns6l for the parties.

5. Before we discuss the case one way or the other it is worthwhile

to refer to the relevant provision of the amendments introduced by
Act No. III of 1997, whereby the application of the Act was
extended to the industrial buildings which thus read as follows:--

(1) in section 2, after clause (g) the following new clause

shall be inserted, namely;

Peshawar High Court

 2460
"(ga) `Schedule' means the Schedule to this Act;

(2) in section 3, for subsection (2) the following shall be

substituted, namely;

(2) there shall be levied, charged and paid a tax on the

buildings and lands in rating areas at such rates and in
respect of such buildings and lands as prescribed in the
Schedule:

Provided that different rates may be prescribed for different

categories of buildings and lands including building and
lands located in different areas:

Provided further that Government may, by notification, for

reasons to be recorded, remit in whole or in part, the
payment of the tax by any class of person in respect of any
category of property";

(3) for section 4 the following shall be substituted, namely:-

-

"4. Exemptions.--The tax shall not be leviable in respect of

the following properties, namely:

(a) buildings and lands, other than those leased in

perpetuity, vesting in the Federal Government;

(b) buildings and lands, other, than those leased in

perpetuity, vesting in Government and not administered by
a local authority, or owned or administered by a local
authority when used exclusively for public purposes and
not used or intended to be used for purposes of profit;

(c) buildings and lands the area whereof does not exceed
three marlas;

Peshawar High Court

 2461
(d) public par s, playgrounds and libraries;

(e) buildings and lands or portions thereof used exclusively

for public worship or public charity including mosques,
churches, dharamsalas, gurdwaras, orphanages, alms
houses, drinking water fountains; infirmaries for the
treatment and care of animals and public burial or burning
grounds or other places for the disposal of the dead:

Provided that the following buildings and lands or portions

thereof shall not be deemed to be used exclusively for
public worship or for public charity within the meaning of
this section, namely:--

(i) buildings in or land on which any trade or business is

carried on unless the rent derived from such buildings or
land is applied exclusively to religious purposes or such
public charitable institutions as may be prescribed;

(ii) buildings or land in respect of which rent is derived,

and such rent is not applied exclusively to religious
purposes or to public charitable institutions; and

(f) buildings and lands belonging to widows and minor

orphans who are not assessed to income tax";

(4) in section 7.--

(a) in subsection (1), for the words "five years" the words
"three years" shall be substituted; and

(b) after subsection (2) the following new subsection shall

be added, namely:

"(3) after every three years the tax shall be increased at the
rate of fifteen per cent of the tax last assessed and a new
valuation list shall accordingly be prepared;" and

Peshawar High Court

 2462
(5) the Schedule specified in Schedule I shall be added at
the end.

SCHEDULE-I

(See section 4(2)

"SCHEUDLE

(See section 3(2))

PART-I

RESIDENTIAL BUILDINGS

S. Category Rate of tax at Rate of tax in Rate of tax at

No.
Provincial suburban District

And areas (other Headquarters

Divisional than areas for old city

Head-quarters covered by and extended

for old city column 3) of area not

and new the Provincial covered by

extended area and Divisional column No.4

Headquarters.
1 2 3 4 5
1. Exceeding3. Rs.750 per Rs.325. per Rs.300 per
Marlas but Annum Annum Annum
not exceeding
5 Marlas
2. Exceeding5 Rs.1500 per Rs.750 per. Rs.750 per

Peshawar High Court

 2463
Marlas but Annum Annum Annum
not exceeding
10 Marlas
3. Exceeding 5 Rs. 1500 per Rs. 750 per Rs. 750 per
Marlas but Annum Annum Annum
not
exceedings
10 Marlas
4 Exceedings15 Rs.3000per Rs.1500per Rs.1500per
Marlas but Annum Annum Annum
not
Exceeding 20
Marlas
5. Exceeding 20 Rs.3000 per Rs.1500 Per Rs.1500 per
Marlas
Annum for Annum for the Annum for the

the first 20 first 20 first 20

Marlas plus Marlas plus Marlas plus

Rs.200 per Rs.100 per Rs.50 per

additional additional additional

Marlas Marlas. Marlas

PART - II

COMMERCIAL BUILDINGS

S. Category Rate of Tax for Rate of Tax Rate of

No. for tax -for
Provincial
Head- Divisional District
Head Head
quarters
quarters quarters

Peshawar High Court

 2464
(other (other

than than those

Peshawar)
covered
by

column 4)
1 2 3 4 5
1. Ground/First Rs.7 Per Sqft Rs.4 Per ks:2 Per
Floor Sqft Sqft
2. Basement Rs.3 per Sqft Rs.2 Per Rs.1 Per
Upper Stories Sqft Sqft.

PART - III

OFFICES

Building acquired for use as offices by Government or Semi--

Government Organi4ations or by Banks and Development
Financial Institutions and lands shall be assessed for the purpose of
tax on the basis of 20 per cent of the annual value of such buildings
or lands.

PART - IV

PETROL PUMPS

(i) Petrol Pumps with Convenience Rs.10000 Per

Stores Annum
(ii) Petrol Pumps without Convenience Rs.5000 per Annum
Stores

PART - V

Peshawar High Court

 2465
INDUSTRIAL BUILDINGS

Industrial buildings within the limits of urban areas shall be

assessed for the purpose of this tax at the rate of one rupee per
square foot. "

6. The amendment which was introduced by the "North-West

Frontier Province Finance Ordinance, 2000" (Ordinance II of
2000), is also reproduced and thus reads as under:--

3. Amendment of W.P. Act V of 1958.---In the West Pakistan

Urban Immovable Property Tax Act, 1958 (W.P. Act V of 1958),
in the Schedule,--

(i) For Part II the following shall be substituted, namely:---

"PART-II

COMMERCIAL BUILDINGS AT PROVINCIAL

HEADQUARTER

S. Category of Rate of tax 1st Floor and Upper

locality per
Basement Stories
No. where the square feet
property of

is situated. covered
area.

Ground
Floor
1 2 3 4 5
1. A Rs.10 Rs.7 Rs.5
2. B Rs.7 Rs.5 Rs.3
3. C Rs.5 Rs.3 Rs.2
4. D Rs.3 Rs.2 Rs.1

Peshawar High Court

 2466
Note.--For the purpose of column 2, the categories 'A', 'B', 'C' and '
D' shall be such as respectively notified by Government in the
official Gazette,";

(ii) after Part II, as so substituted, the following new part

shall be inserted, namely;

"PART - II-A

COMMERCIAL BUILDINGS LOCATED AT THE PLACES

OTHER THAN THE PROVINCIAL HEADQUARTER

S. Category Rate of tax per Rate of tax per

square
square feet of
feet of covered
No covered areas at areas

Divisional in the Districts

Head- other

quarters than the District

of

Provincial and

Divisional Head

quarters
1 2 3 4

1. Ground/First Rs.4 Rs.2

Floor
2. Basement/Upper Rs.2 Re. 1" and
Storeys

(iii) for Part V the following shall be substituted, namely:

Peshawar High Court

 2467
"PART-V

INDUSTRIAL BUILDINGS

Industrial buildings within the limits of rating areas shall,

for the purposes of this tax, be assessed at the rate of
Rs.2.50 per square feet of the covered areas of such
buildings."

7. The above quoted provisions reveal that the industrial buildings

have been for the first time subjected to the levy of the property tax
but this is not something unprecedented as in every part of the
country Industrial buildings or for the matter any building which
earns profit is subject to the levy of property tax.

8. A perusal of clause 2(iv) of the agreement between the

petitioners and the SIDB would show that imposition of such tax
was apprehended all along even by the latter that is why this clause
was specifically inserted by it and accepted by the petitioners at the
time of execution of the lease deed which clearly stipulated that all
the charges, taxes, assessments, premiums, rates including water
rates and outgoing whatsoever now or hereafter imposed, levied or
charged by any authority upon, in connection with or in respect of
the demised property and the buildings and structures erected
thereon, shall be paid by the lessee. In this view of the matter, the
argument of the learned counsel for the petitioners that the Small
Industrial Development Board being an independent authority has
already subjected the petitioners to administration, maintenance
and service charge, therefore, they cannot be subjected to yet
another tax, shall be stripped its force if at all it had any.

9. The argument that the petitioners are the lessees and not the
owners of the plots on which they have raised their Industrial
Buildings, therefore, they cannot be subjected to the levy of
property tax is. unfounded altogether for the simple reasons that
their lease, being spread over a period of 99 years, would bring

Peshawar High Court

 2468
their case in the mischief of lessees in perpetuity, as such they
being owners to all intents and purposes of the Act have rightly
been subjected to the levy of property tax. Needless to reiterate that
according to the dictionary meaning, perpetuity means a fairly long
time.

10. The last limb of the argument of the learned counsel for the
petitioners is also vacuous both factually and legally when the
Industrial Estate falls within the boundaries of the urban area, vide
Notification No.S.O.(LG-I)LG-12(33)/76(1), dated July, 1978 and
that when it has been held by the Hon'ble Supreme Court in a
Judgment rendered in the case of Government of N.-W.F.P. and
others v. Haji Muhammad Afzal Zia in Civil Appeal No.437 of
1999, decided on 20-1-2004 that the Small Industrial Estate falls
within the urban area.

11. The case of Jamshaid Waheed v. Government of Punjab

through Secretary Excise and Taxation Lahore and 5 others (supra)
will not be relevant to the case in hand as in that case valuation
table prepared for the purpose of Stamp and Registration Art was
held to be inapplicable for the purpose of the Punjab Act V of
1958. The case of National Detergents Ltd. and others v. The
Province of Sindh and another (supra) is also not applicable to the
instant case solely because it was relating to section 3(3-AA) of the
Punjab Urban Immovable Property Tax Act whereas there is no
provision in the N.-W.F.P. Act No.V of 1958 in parameteria
therewith conditioning the levy of tax with the provision of civic
facilities.

12. Above all else when nothing has been convincingly canvassed
at the bar to show that any of the amendments in the Act or its
extension to the Industrial Estate is either illegal, un-Constitutional
or ultra vires, we do not think, a case for striking them down is
made out.

13. The upshot of the foregoing discussion is that these petitions

being without substance are thus dismissed alongwith C.M.

Peshawar High Court

 2469
M. B. A./194/P
Petitions dismissed.

2005 P T D 2355

[Peshawar High Court]

Before Malik Hamid Saeed and Ejaz Afzal Khan, JJ

Messrs UNIVERSAL INSURANCE CO. LTD.

Versus

COLLECTOR, CUSTOMS, CENTRAL EXCISE & SALES

TAX, PESHAWAR and 5 others

Writ Petition No.249 of 1999, decided on 15th February, 2005.

(a) Customs Act (IV of 1969)---

----S. 19---S.R.O. 517(I)/89, dated 3-6-1989---S.R.O.

No.419(I)/91, dated 9-5-1991---Constitution of Pakistan (1973),
Art.199---Constitutional petition---Notice on the Insurance
Company for encashment of guarantees issued by the company on
behalf of importer pursuant to an order of High Court---
Contentions of the Insurance Company were that Collector of
Customs could not encash said insurance guarantees as the raw
material and components imported by the importer under S.R.O.
517(I)/89, dated 3-6-1989 were exempt from all the customs duties
and other taxes levied thereon; that though the notification was
rescinded vide S.R.O. 419(I)/91, dated 9-5-1991, nonetheless it
would not affect the exemption when the raw material and other
components had admittedly been imported against the irrevocable
letters of credit which were opened on 14-3-1991, much before the
crucial dated; that where the goods in question were exempt from
all the duties and taxes, encashment of the insurance guarantees

Peshawar High Court

 2470
furnished by the Insurance Company on behalf of the importer
could not be justified by any canon of law and equity; that if the
insurance guarantees were not encashed within the time stipulated
therein they could not be encashed thereafter and in the alternative
it was further urged that if by any means, High Court linked the
applicability of S.R.O. 517(I)/89 with the fulfilment of the
conditions mentioned therein, the relief asked for could be granted
subject to the proof of their fulfilment---Validity---Held, there was
no doubt that the irrevocable letter of credit for the import of raw
material and other components was opened on 14-3-1991, much
before the rescission of S.R.O. 517(I)/89, but that alone would not
entitle the importer to exemption and relieve the Insurance
Company of its liabilities under the insurance guarantees unless the
requirements listed and laid down in the said S.R.O. were proved
to have been fulfilled---Where no documents and the certificates
provided by forms I and II of the S.R.O., had been annexed with
the petition or brought to the notice of the High Court, though the
petition remained pending for more than five years, or during the
course of arguments, which could suggest that the requirements
attracting the applicability of the S.R.O. had been fulfilled, all the
arguments relating to exemption would collapse, notwithstanding
the fact that the letter of credit was opened before the rescission of
relevant S.R.O.---High Court, however, observed that the
insurance company would be at liberty to produce relevant
documents before the concerned forum to bring its case within the
mischief of the S.R.O. in question.

(b) Customs Act (IV of 1969)---

----S. 202---Contract Act (IX of 1872), Ss.126 & 28---Insurance

guarantee---Such guarantee, as a matter of fact, is a contract of
guarantee in terms of S.126, Contract Act, 1872 and as such is
subject to all the incidents which a contract can possibly be under
the Contract Act, 1872---Not open to the parties to any agreement,
to contract themselves out of a provision of law under S.28,
Contract Act, 1872 so would it be for the parties to a guarantee---
As any such clause in a contract would be void so would it be in a
guarantee---When an insurance guarantee is a contract to all intents

Peshawar High Court

 2471
and purposes, the stipulation in the guarantees that the Insurance
Company shall be discharged of all the liabilities created
thereunder if not encashed or enforced within one week after their
expiry would be void within the terms of S.28, Contract Act, 1872,
inasmuch as it restricted or ruled out the application of 5.202,
Customs Act, 1969, moreso when the guarantees also stipulated
that their amount shall be recoverable as arrears of land revenue.

Nathu Mal-Ram Das v. D.B. Rain Sarup & Co. and others AIR
1932 Lah. 169 and Islamic Republic of Pakistan through Defence
Secretary, Government of Pakistan, Karachi v. Nazar Din Khattak
and Sons PLD 1969 Pesh. 313 ref.

Quetta Textile Mills Ltd. v. Federation of Pakistan and 2 others

1999 CLC 755; Emirate Bank International v. Messrs United
Group of Companies 1998 CLC 743 and Messrs Gadoon Polyester
v. Collector Customs and others Writ Petition No. 1068 of 1996
distinguished.

Abdul Latif Yousafzai for Petitioner.

S.M. Attiq Shah for Respondents Nos.1 to 4.

Hamid Farooq Durrani, Dy. A.-G. for Respondent No.5.

Date of hearing: 8th February, 2005.

JUDGMENT

EJAZ AFZAL KHAN, J.---Messrs Universal Insurance

Company Ltd. petitioner therein, issued 4 Insurance Guarantees to
the Collector Customs, Central Excise and Sales Tax, respondent
No.1 herein, on behalf of Messrs Capero Industries (Pvt.) Ltd.
respondent No.6 herein, pursuant to an order, dated 21-8-1991 of
Lahore High Court in a writ filed by the latter for the release of
raw materials in terms of S.R.O. No.517(I)/89, dated 3-6-1989.
The detail of the said guarantees is as under:--

Peshawar High Court

 2472

Sr. Guarantee Date of Letter of Amount of

No. No. Issue. Credit Guarantee.

1. Pes-BB-20102 22-8-1991 0017-LC-

859/91 1193077

2. Ns-BB-20116 9-9-1991 0017-LC-

858/91 806736

3. Pes-BB-20138 2-12-1991 0017-LC-

858/91 3102509

4. Pes-BB-20139 24-12-1991 0017-LC-

858/91 4452699

2. On 12-2-1999 respondent No.3 served a notice on the petitioner

for encashment of the aforesaid insurance guarantees which was
duly replied by the latter. When in spite of reply the respondents 1
and 3 insisted on the encashment of the guarantees, the petitioner
filed the instant petition under Article 199 of the Constitution of
Islamic Republic of Pakistan, 1973.

3. It was argued by the learned counsel for the petitioner that

respondent No.1 could not encash insurance guarantees furnished
by the petitioner on behalf of respondent No.6 as the raw material
and other components imported by the latter under S.R.O.
No.517(I)/89 were exempt from all the customs duties and other
taxes levied thereon. Though, he next urged, the S.R.O. mentioned

Peshawar High Court

 2473
above was rescinded vide S.R.O. 419(I)/91, dated 9th May, 1991
nonetheless it would not affect the exemption when the raw
material and other components have admittedly been imported
against the irrevocable letters of credit opened on 14-3-1991 much
before the crucial date. He further urged that where the raw
materials and other components imported by respondent No.6 are
exempt from all the duties and taxes, encashment of the insurance
guarantees furnished by the petitioner on behalf of the said
respondent cannot be justified by any canons of law and equity.
The learned counsel by referring of the cases of Quetta Textile
Mills Ltd. S. Federation of Pakistan and 2 others (1999 CLC 755)
and Emirate Bank International v. Messrs United Group of
Companies (1998 CLC 743), submitted that where the insurance
guarantees were not encashed within the time stipulated therein
they could not be enchased thereafter. If by any means, the learned
counsel, urged in the alternative, this Court links the applicability
of the S.R.O. No.517(I)/89 with the fulfilment of the conditions
mentioned therein, in that case, the relief asked for can be granted
subject to the proof of their fulfilment. The learned counsel to
support his arguments relied on the judgment rendered in Writ
Petition No. 1068 of 1996 decided on 16-9-1999 in the case of
Messrs Gadoon Polyester v. Collector Customs and others.

4. As against that the learned Deputy Attorney-General appearing

on behalf of the respondents argued that exemptions under S.R.O.
No.517(I)/89 can only be claimed when all the conditions
mentioned therein are fulfilled. But where, he elaborated his
argument, the said conditions are not fulfilled no exemption
thereunder can be claimed either by the importer or the person
furnishing guarantees. The learned Deputy Attorney-General by
referring to the relevant clauses of the guarantees submitted that
where it was specifically stipulated therein that their amount shall
be recoverable as arrears of land revenue under section 202 of the
Customs Act, 1969 it can be encashed notwithstanding the expiry
of period mentioned therein.

5. We have gone through the record carefully and have considered

submissions of the learned counsel for the parties.

Peshawar High Court

 2474
6. Before we comment on the argument of the learned counsel for
the parties it would be germane to refer to the relevant S.R.Os.
which are reproduced as under:--

"Notification No. S.R.O. 517(I)/89, dated 3rd June, 1989.--

-In exercise of the powers conferred by section 19 of the
Customs Act, 1969 (IV of 1969), and subsections (1) and
(2) of section 7 of the Sales Tax Act, 1951 (III of 1951), the
Federal Government is pleased to direct that such raw
materials and components as are imported for the exclusive
manufacture of goods by recognized industrial units located
in the approved industrial estate of Gadoon Amazai in the
Province of N.-W.F.P., shall be exempt from whole of the
customs-duties and sales tax leviable thereon subject to the
following conditions, namely:

(i) the manufacture shall have suitable in-house facilities to

manufacture the items in respect of which he claims
exemption under this notification:

(ii) the manufacturer shall furnish to the Chief, Survey and

Rebate or any other officer authorized by the Central Board
of Revenue in this behalf in the prescribed form the list of
items that he is manufacturing along with the details of raw
materials and components required and the Chief or such
authorized officer in consultation with the Collector of
Customs or the concerned Government Department will
certify the annual capacity of the industrial unit for the
manufacture of goods and total annual requirements of
various types of raw materials and components along with
the quantity required for the manufacture of each item;

Peshawar High Court

 2475

(iii) in case when concession is claimed on components the

manufacturer shall chalk out deletion programme spreading
over a maximum period of five years within which period
he shall achieve a minimum deletion to the extent of 75%
of the C&F value of the inputs of the manufactured items,
and the continued availability of the exemption under this
notification shall be contingent upon (a) the achievement of
progressive annual deletion as approved by the Central
Board of Revenue or the Ministry of Industries as the case
may be and (b) use of locally manufactured deleted items;

(iv) at the time of import of raw materials and components the

manufacturers shall make a written declaration on each
copy of the bill of entry to the effect that the raw materials
and components have been imported in accordance with his
entitlement in terms of condition (ii) above;

(v) the manufacturer shall furnish to the Collector of Customs

bank guarantee equivalent to the customs-duty and sales tax
leviable on each consignment subject to the satisfaction of
the Collector of Customs;

(vi) the manufacturer shall maintain record of the raw materials

and components and the items manufactured out of them in
such form as may be prescribed by the Central Board of
Revenue;

Peshawar High Court

 2476
(vii) the manufacturer shall, within one year of the date of
importation of the raw materials and components, apply to
the Collector of Customs for discharging the bank
guarantee, the application being supported by a certificate
in Form-I set out below issued by the Assistant Collector,
Customs and Central Excise, within whose jurisdiction the
manufacturing unit is located; and

(viii) the manufacturer shall maintain in Form-II set out below a

record of the sale of the items manufactured under this
notification and shall produce, oil demand, such record and
other evidence of sale, as may be required for inspection by
an officer of Customs not below the rank of Assistant
Collector of Customs, in whose jurisdiction the
manufacturing unit is located or any other officer
authorized by the Central Board of Revenue in this behalf.

FORM-I

Certificate No.______________dated___________________ I
(name of the officer) Assistant Collector, Customs and. Central
Excise (place of posting) is satisfied that the raw materials and
components imported by Messrs (name of the company) under the
provisions of S.R.O. _________ against indemnity bond vide bill
of entry No. _________ dated the__________ have been used for
the manufacture of (Items to be

mentioned) in accordance with the scale laid down by the Chief,

Survey and Rebate, vide certificate No. __________________
dated__________________.

Peshawar High Court

 2477
File No. __________________ Stamp and
Signature

FORM-II

Register of sale of goods manufactured from raw materials and

components imported under Notification (Give No. and date of
S.R.O.)

S. Item Name Quantity Date No. and date of

No. Sold and sold of sale the consumption
address certificate relating
of the to the item sold
party to
whom
sold

Notification No. S.R.O. 419(I)191, dated 9th May, 1991.---

In exercise of the powers conferred by section 19 of the
Customs Act, 1969 (IV of 1969), and subsection (1) of
section 13 of the Sales Tax (Amendment) Act, 1990, the
Federal Government is pleased to rescind its Notification
No.517(I)/89, dated the 3rd June, 1989.

Peshawar High Court

 2478
This Notification shall, however, not affect the raw
materials and components imported against irrevocable
letters of credit opened on or before 8th May, 1991.

7. There is no doubt that the irrevocable letter of credit for the

import of raw material and other components was opened on 14-3-
1991 much before the rescindment of S.R.O. No. 517(I)/89 but this
alone would not entitle respondent No.6 to exemption and relieve
the petitioner of its liabilities under the insurance guarantees unless
the requirements listed and laid down in the said S.R.O. are proved
to have been fulfilled. Where no documents and the certificates A
provided by Forms I and II of the S.R.O. have been annexed with
the petition or brought to the notice of the Court during the course
of arguments as could suggest that the requirements attracting the
applicability of the S.R.O. have been fulfilled, all the arguments
relating to the exemption will collapse like a house of sand
notwithstanding the fact that the letter of credit was opened before
the rescindment of the S.R.O.

8. Before we discuss the argument addressed on the strength of the

judgment rendered in the cases of Quetta Textile Mills Ltd. v.
Federation of Pakistan and 2 others (1999 CLC 755) and Emirate
Bank International v. Messrs United Group of Companies (1998
CLC 743), it will not be out of place to know as to what an
insurance guarantee is and how and when can it be enforced. It, as
a matter of fact, is a contract of guarantee in terms of section 126
of the Contract Act and as such is subject to all the incidents a
contract can possibly be under the Act. As it is not open to the
parties to any agreement, to contract themselves out of a provision
of law under section 28 of the Act so would it be for the parties to
a guarantee. As any such clause in a contract would be void so
would it be in a guarantee. When an insurance guarantee is a
contract to all intents and purposes, the stipulation in the
guarantees that the petitioner shall be discharged of all the
liabilities created thereunder if not encashed or enforced within
one week after their expiry would be void within the terms of

Peshawar High Court

 2479
section 28 of the Contract Act in as much as it restricts or rules out
the application of section 202 of the Customs Act, 1969. The more
so when it is also stipulated in the guarantees that their amount
shall be recoverable as arrears of land revenue. Therefore, neither
the argument nor the judgments cited in its support will have any
relevance. Though section 28 itself of the Contract Act is quite
clear on the proposition, all the same the cases of Nathu Mal-Ram
Das v. D.B. Rain Sarup and Co. and others (AIR 1932 Lahore 169)
and Islamic Republic of Pakistan through Defence Secretary,
Government of Pakistan, Karachi v. Nazar Din Khattak and Sons
(PLD 1969 Peshawar 313) may well be referred as precedents in
this behalf.

9. The last argument of the learned counsel for the petitioner

addressed on the strength of the judgment rendered in the case of
Messrs Gadoon Polyester v. Collector Customs and others is also
without force when the petitioner could not bring anything in black
and white on the record to prove that the requirements of the said
S.R.O. are fulfilled in spite of the fact that the writ petition
remained pending for more than five years.

For the reasons discussed above, this petition being without merit
is dismissed. However, the petitioner would be at liberty to
produce the relevant documents before the concerned forum to
bring its case within the mischief of the above mentioned S.R.O.
and claim exemption thereunder.

M.B.A./471/P
Petition dismissed.

Peshawar High Court

 2480

Peshawar High Court

 2481

2007 P L C (C.S.) 345

[Peshawar High Court]

Before Ejaz Afzal Khan and Raj Muhammad Khan, JJ

BURHAN-UD-DIN

Versus

FEDERATION OF PAKISTAN through SECRETARY

FINANCE DIVISION, Islamabad and 4 others

Writ Petition No.340 of 2006, decided on 5th October, 2006.

Fundamental Rules---

---R. 81---Constitution of Pakistan (1973), Art.199---

Constitutional petition---Civil service---Increments on acquiring
higher qualification---Entitlement---Petitioner had prayed that
direction be issued to authorities to grant him three advance
increments on account of his improvement in his academic
qualification and full allowance during his leave on half pay in
terms of Fundamental Rule No.81---Relevant rules regarding grant
of increments had revealed that an employee of a Bank would be
entitled to advance increments only when he had acquired a higher
qualification in the subject specified by the Bank---Petitioner had
obtained Master Degree in subject of Islamiyat, which was not
amongst the subjects listed in the relevant rules---Petitioner, in
circumstances, could not claim increments as of right and had
rightly been declined by the authorities---Contention of petitioner
that he was entitled to grant of full allowance during leave on half
average pay addressed on the strength of Fundamental Rule No.81,
was repelled as said Rule did not provide any such eventuality.

Peshawar High Court

 2482

Chairman, A.D.B.P. v. Abdul Wadood in Civil Revision No.55.5

of 1999 decided on 21-4-2000 and Tara Chand and others v.
Karachi Water and Sewerage Board Karachi and others 2005
SCMR 499=2005 PLC (C.S.) 368 ref.

Sh. Shapur Jan for Petitioner.

Nemo for Respondents.

Date of hearing: 5th October, 2006.

JUDGMENT

EJAZ AFZAL KHAN, J.---Burhanuddin, petitioner herein, seeks

the issuance of an appropriate writ directing the respondents to
grant him three advance increments on account of improvement in
his academic qualification and full allowance during his leave on
half pay in terms of Fundamental Rule 81.

2. The learned counsel appearing on behalf of the petitioner

contended that though the qualification of Master Degree in
Islamiyat is neither relevant nor entitles the petitioner to advance
increments but similar facility has been given to one Abdul
Wadood, by this Court in the case of Chairman, A.D.B.P. v. Abdul
Wadood in Civil Revision No.555 of 1999, decided on 21-4-2000.
The learned counsel in support of his contention also placed
reliance on the case of Tara Chand and others v. Karachi Water
and Sewerage Board Karachi and others 2005 SCMR 499=2005
PLC (C.S.) 368. The learned counsel next submitted that the
petitioner was also entitled to the grant of full allowance during the
leave on half average pay as per Fundamental Rule 81.

3. A perusal of the relevant rules regulating the grant of

increments reveals that an employee of the Bank would be entitled

Peshawar High Court

 2483
to advance increments only when he has acquired a higher
qualification in the object specified by the bank. Islamiyat is not
from amongst the subjects listed in the rules. He, therefore, cannot
claim increments as of right and has rightly been declined by the
respondents. The judgment of this Court rendered in the case of
Chairman, A.D.B.P. v. Abdul Wadood in Civil Revision No.555 of
1999, decided on 21-4-2000 (supra) would not advance the case of
the petitioner as the claim of the respondent in that case was
decreed on the premises which were not recognized by the rules
governing the grant of increments. Therefore, this precedent being
per incuriam in nature does not have any binding force. The case
of Tara Chand and others v. Karachi Water and Sewerage Board
Karachi and others (supra) too would not advance the case of the
petitioner as in that case, the Honourable Supreme Court after
highlighting the scope of a judgment in rem and a judgment in
personam held that a benefit which is due under the law to one
should also be extended to another similarly placed regardless
altogether of the fact, whether he approached the Court or not in
view of the provisions contained in rule 6 of Order XXVI of the
Supreme Court Rules, 1980 and rule 33 of Order XLI of the C.P.C.
But we do not think, the benefit extended to the respondent in the
case of Chairman A.D.B.P. v. Abdul Wadood (supra) could be
termed as due under the law by any means so as to justify its grant
to the petitioner. Neither the respondent in that case nor any of the
persons, alluded to therein who were earlier granted three advance
increments, was entitled to such benefit, when none of them
acquired the higher qualification in the subject, thus, listed.
Granted that equality before law is the supreme ideal for the Courts
of law but it does not mean that a benefit, which should not have
been extended to any, if extended to one, would furnish a
justification for its extension to another. For commission of one
wrong or two or any number thereof cannot furnish a justification
for yet another. Similarly two wrong precedents would not legalize
an act which is void from the very inception.

4. The argument that the petitioner is entitled to the grant of full

allowances during the leave on half average pay addressed on the
strength of Fundamental Rule 81 appears to be untenable on the

Peshawar High Court

 2484
face of it, when the rule does not provide any such eventuality. It
becomes all the more untenable, when as per para.21.17 of the
Personnel Manual, which is more relevant than the rule in this
case, an employee of the Bank is not entitled to any allowance
during his .Ex Pakistan leave. Above all else, laches of almost ten
years would be another factor which would tilt the scales of justice
against the grant of the claim asked for. Therefore, we do not
think, a case for interference in the exercise of extraordinary
equitable discretionary constitutional jurisdiction is made out.

5. For the reasons discussed above, this writ petition being without
substance is dismissed in limine.

H.B.T./18/P
Petition dismissed.

Peshawar High Court

 2485

2008 P L C (C.S.) 68

[Peshawar High Court]

Before Ejaz Afzal Khan and Jehanzaib Rahim, JJ

MUHAMMAD REHMAN

Versus

DIRECTOR FINANCE PESCO, WAPDA and another

Writ Petition No.1759 of 2006, decided on 26th June, 2007.

(a) Service Tribunals Act (LXX of 1973)---

----S. 4---Civil Servants Act (LXXI of 1973), S.9---

Constitution of Pakistan (1973), Art.199---Constitutional
petition---Maintainability---Appeal to Service Tribunal---
Scope---Promotion, eligibility or fitness for---Except an order
or decision of the Departmental Authority determining the
fitness or otherwise of a person to be appointed to or hold a
particular position or to be promoted to a higher grade, all
order's or decisions relating to the terms and conditions of
service, could be assailed before the Service Tribunal--Record
and arguments addressed by the counsel for the petitioner had
revealed that the dispute urged before the High Court as to
fitness or otherwise of petitioner for being promoted, was one
of his eligibility for being considered for promotion---In the
case of fitness; petitioner could come to High Court, if he,
despite being fit, was not promoted in violation of law, excess

Peshawar High Court

 2486
or absence of jurisdiction or in colourable exercise thereof-In
case of eligibility petitioner could go to the Service Tribunal, if
he was not held eligible for promotion and not considered---
Petitioner's case was not that he being eligible was not
considered for promotion and found unfit; his case was that 'his
name, despite his eligibility was not forwarded to competent
Authority for being considered for promotion---Dispute like
such type clearly and squarely fell within the ambit of S.4 of
Service Tribunal's Act, 1973, which could be urged before the
Service Tribunal and not before High Court under Art.199 of
Constitution---When the dispute about the passing of
prescribed examination by the petitioner being one of fact and
disputed by the respondents, same could not be gone into by
High Court while hearing constitutional petition.

Muhammad Mubeen-us-Salam and others v. Federation of

Pakistan through Secretary, Ministry of Defence and others
P L D 2006 SC 602; Muhammad Iqbal and others v. Executive
District Officer (Revenue), Lodhran and another 2007 SCMR
682; Muhammad Anis and others v. Abdul Haseeb and others
PLD 1994 SC 539; Zafarullah Baloch v. Government of
Balochistan and others 2002. SCMR 1056; Muhammad Rahim
Khan v. The Chief Secretary, N.-W.F.P. and others PLD 2004
SC 65; Muhammad Rahim Khan v. The Chief Secretary, N.-
W.F.P. and 4 others 1999 SCMR 1605 and Tasleem Jan and
others v. Muhammad Zaman and others 2005 SCMR 695 ref.

(b) Pakistan Water and Power Development Authority Act

(XXXI of 1958)---

----S. 17(1-B)---Service Tribunals Act (LXX of 1973), Ss.2-A

& 4---Civil Servants Act (LXXI of 1973), 59---Constitution of
Pakistan (1973), Arts.199 & 260---Constitutional jurisdiction
of High Court---Scopes--Deletion of S.17(1-B) of Pakistan
Water and Power Development Authority Act, 1958---
Provisions of S.17(1-B) of Pakistan Water and Power
Development Authority Act, 1958 declaring the service of the
Authority to be a service of Pakistan, was neither deleted from

Peshawar High Court

 2487
the said Act nor it was any way repugnant to the provisions of
Art.260 of the Constitution, and dispute as to the eligibility of
the petitioner being related to the terms and conditions of
service, could be urged before the Service Tribunal---High
Court in circumstances had no jurisdiction, however, instead of
dismissing constitutional petition, same was treated as an
appeal and was sent to the Service Tribunal for decision in
accordance with law.

Mian Muhibullah Kakakhel for Petitioner.

Barrister Arshad Abdullah for Respondent.

Date of hearing: 26th June, 2007.

JUDGMENT

EJAZ AFZAL KHAN, J.---Muhammad Rehman, petitioner

herein, seeks issuance of an appropriate writ directing the
respondents to consider him for promotion for the post of AB
and AO, on the ground that, he after qualifying the prescribed
examination, is eligible therefor.

2. Learned counsel appearing on behalf of the petitioner

contended that where the petitioner after qualifying the
required examination was eligible and as such his name should
have been sent for being considered for promotion to the post
of AB and AO. He next urged that this Court under Article 199
of the Constitution of Islamic Republic of Pakistan, 1973, has
the powers to issue the writ asked for, notwithstanding a thin line
of distinction between the eligibility and fitness, especially when
the highhandedness of the respondents, in not sending the name of
the petitioner to the competent authority for being considered for
promotion, is patent and palpable. Resort to the Service Tribunal,
the learned counsel urged, cannot be had, when section 2-A, no
more adorns the Service Tribunal Act and stands deleted in view of

Peshawar High Court

 2488
the dictum laid down in the case of Muhammad Mubeen-us-Salam
and others v. Federation of Pakistan through Secretary, Ministry of
Defence and others PLD 2006 SC 602. Section 17(1-B) of the
WAPDA Act, 1958, the learned counsel submitted, too, cannot
debar the entertainment of the instant petition, when it like section
2-A of the Service Tribunal Act, on account of its being repugnant
to the provision of Article 260 of the Constitution also stands
deleted, if seen in the light of the observations made in paragraphs
67, 68 and 69 of the aforesaid judgment. The learned counsel 'by
referring to the case of Muhammad Iqbal and others v. Executive
District Officer (Revenue), Lodhran and another 2007 SCMR 682
contended that where a right has been conferred on an eligible civil
servant possessing the prescribed qualification under section 9 of
the Civil Servants Act, 1973 for being considered for promotion,
he can seek his redress through a constitutional petition, if and
when it is denied.

3. As against that, the learned counsel appearing on behalf of the

respondents, contended that the reason for not forwarding the name
of the petitioner for being considered for promotion was that he is
not eligible for want of qualifying the prescribed examination. But
as, the learned counsel concluded, he was not considered
altogether, because of his being ineligible, the question of fitness
or otherwise does not arise and as such this Court will have no
jurisdiction.

4. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

5. Before we discuss the arguments of the learned counsel for ate

petitioner, it is worthwhile to see what are the disputes to be taken
to this Court and what are those to be urged before the Service
Tribunal. The relevant provision in this behalf is section 4 of the
Service Tribunals Act, 1973 which is reproduced for the facility of
reference and thus, reads as under:--

Peshawar High Court

 2489
"4. Appeals to Tribunals.--- (1) Any civil servant aggrieved
by any order whether original or appellate, made by a
departmental authority in respect of any of the terms and
conditions of his service may, within thirty days of the
communication of such order to him or within six months
of the establishment of the appropriate Tribunal, whichever
is later, prefer an appeal to the Tribunal :

Provided that---

(a) Where an appeal, review or representation to a

departmental authority is provided under the Civil Servants
Act, 1973, or any rule against any such order, no appeal
shall lie to a Tribunal unless the aggrieved civil servant has
preferred an appeal or application for review or
representation to such departmental authority and a period
of ninety days has elapsed from the date on which such
appeal, application or representation was so preferred;

(b) No appeal shall lie to a Tribunal against an order or

decision of a departmental authority determining the fitness
or otherwise of a person to be appointed to or hold a
particular post or to be promoted to a higher grade; and

(c) ------------------------------------------------------------

(2) ------------------------------------------------------------------

Peshawar High Court

 2490

(a) ------------------------------------------------------------

(b) ------------------------------------------------------------

Explanation.--- In this section, "departmental authority"

means any authority other than a Tribunal, which is
competent to make an order in respect of any of the terms
and conditions of civil servants.

6. A perusal of the above quoted provision would reveal that

except an order or decision of the departmental authority
determining the fitness or otherwise of a person to be appointed to
or hold a particular post or to be promoted to a higher grade, all
other orders or decisions relating to the terms and conditions of
service can be assailed before the Service Tribunal. The record and
the arguments addressed by the learned counsel for the petitioner
reveal that the dispute urged before us is not as to fitness or
otherwise of the petitioner for being promoted but one of his
eligibility for being considered for promotion. In the former case
he can come to this Court, if he despite being fit was not promoted
in violation of law, excess or absence of jurisdiction or in
colourable exercise thereof. But in the latter case, he can go to the
Service Tribunal, if he was not held eligible for promotion and
thus, not considered. It is not the case of the petitioner that he
being eligible was considered for promotion and found unfit. His
case, precisely, is that his name despite his eligibility was not
forwarded td the competent authority for being considered for
promotion. Quite obviously, a dispute of this type clearly and
squarely falling within the ambit of section 4 of the Service
Tribunals Act, can well be urged before the Service Tribunal and

Peshawar High Court

 2491
not before this Court under Article 199 of the Constitution. The
moreso when the dispute about the passing of the prescribed
examination by the petitioner being one of fact and disputed by the
respondents, cannot be gone into by this Court while hearing a
constitutional petition. In the case of Muhammad Anis and others
v. Abdul Haseeb and others PLD 1994 SC 539, the Honourable
Supreme Court after considering a string of judgments held as
under:--

"We may point out that the question of eligibility and

fitness have been treated differently by the Law-makers in
the Civil Servants Act, 1973 and in the Act. In section 9 of
the former Act, as pointed out hereinabove, a right has been
conferred on a civil servant to be considered for promotion
if he is eligible on account of the fact that he possesses
prescribed minimum qualification but he has no vested
right to be promoted. In contrast to above section 9 of the
above Act, the Law-makers in proviso (b) to subsection (1)
of section 4 of the Act have not used the word "eligible"
but have employed the word "fitness" or otherwise to be
appointed or to hold a particular post or to be promoted to a
higher post or cadre". In other words, the question of
eligibility, which is a term of service by virtue of above
subsection (1) of section 9 of the Civil Servants Act, 1973,
has not been excluded from the purview of the jurisdiction
of the Tribunal but the question, whether a person having
requisite eligibility has been rightly selected or not selected
on account of fitness or otherwise for appointment to hold a
particular post or to be promoted to a higher post or grade,
has been excluded."

7. This principle was also reiterated in the cases of Zafarullah

Baloch v. Government of Balochistan and others 2002 SCMR 10-
56; Muhammad Rahim Khan v. The Chief Secretary, N.-W.F.F.

Peshawar High Court

 2492
and others PLD 2004 SC 65; Muhammad Rahim Khan v. The
Chief Secretary, N.-W.F.P. and 4 others 1999 SCMR 1605 and
Tasleem Jan and others v. Muhammad Zaman and others 2005
SCMR 695. The case of Muhammad Iqbal and others v. Executive
District Officer (Revenue), Lodhran and another (supra), being in
line with the judgments cited above, is another precedent in this
behalf and thus, does not advance the case of the petitioner.

8. Next comes the argument of the learned counsel for the

petitioner with regard to the deletion of 17(IB) of the WAPDA Act
on account of its being repugnant to the provision of Article 260 of
the Constitution. Before we appreciate the true import of this
argument, we would like to refer to section 17(1B) of the WAPDA
Act and then the relevant part of Article 260 of the Constitution
which read as under:--

"17. Employment of Officers and servants.---

(1) ------------------------------------------------

(1A) -----------------------------------------------

(1B) Service under the Authority is hereby declared to be

service of Pakistan and every person holding a post under
Authority, not being a person who is on deputation to the
Authority from any Province, shall be deemed to be a civil
servant for the purposes of the Service Tribunals Act, 1973
(LXX of 1973).

Peshawar High Court

 2493

260. (1) In the Constitution, unless the context otherwise

requires, the following expressions have the meaning
hereby respectively assigned to them that is to say--

" -------------------------------------------------

(a) ----------------------------------------------

(b) ----------------------------------------------

"Service of Pakistan" means any service, post or office in

connection with the affairs of the Federation or of a
Province, and includes an All Pakistan Service, service in
the Armed Forces and any other service declared to be a
service of Pakistan by or under Act of "Majlis-e-Shoora
(Parliament) or of a Provincial Assembly, but does not
include service as Speaker, Deputy Speaker, Chairman,
Deputy Chairman, Prime Minister, Federal Minister,
Minister of State, Chief Minister, Provincial Minster,
Attorney-General, Advocate-General, Parliamentary
Secretary or Chairman or member of a Law Commission,
Chairman or member of the Council of Islamic Ideology,
Special Assistant to the Prime Minister, Adviser to the
Prime Minister,. Special Assistant to a Chief Minister,
Adviser to a Chief Minister, or member of a House or a
Provincial Assembly."

Peshawar High Court

 2494
9. A look at the above quoted provision of the Act would reveal
that service under the authority was declared to be a service of
Pakistan for the purposes of Service Tribunals Act. While a look at
the relevant part of the Article quoted above, would reveal that
service of Pakistan means any service declared to be a service of
Pakistan by an order or under an Act of Parliament. The service
under the authority being declared to be a service of Pakistan by
the Act of Parliament cannot be said to be repugnant to the
provision of Article 260 of the Constitution by any stretch of
reasoning. Therefore, paragraphs 67, 68 and 69 of the judgment
rendered in the case of Muhammad Mubeen-us-Salam and others
v. Federation of Pakistan through Secretary, Ministry of Defence
and others (supra) do not have even remote bearing on the above
mentioned provision of the Act. The argument, thus, addressed
appears to be misconceived and even unconscionable on the face
of it.

10. Having thus, considered, we have no hesitation to hold that the

provision of section 17(1B) of the WAPDA Act declaring the
services of the Authority to be a service of Pakistan is. neither
deleted from the Act nor it is any way repugnant to the provision
of Article 260 of the Constitution and that the dispute as to the
eligibility of the petitioner being related to the terms and
conditions of service can well be urged before the Service
Tribunal, therefore, this Court has no jurisdiction to intervene. We,
however, instead of dismissing this writ petition, treat it as an
appeal by following the dictum laid down in the case of
Muhammad Anis and others v. Abdul Haseeb and others (supra)
and send it to the Service Tribunal for decision in accordance with
law. This petition thus, stands disposed" of.

H.B.T./157/P
Order accordingly.

Peshawar High Court

 2495

P L D 2010 Peshawar 1

Before Ejaz Afzal Khan, C J., and Mazhar Alam Khan Mian
Khel, J

Messrs SHAAN INTERNATIONAL INDUSTRIES,

PESHAWAR through Proprietor---Petitioner

Versus

ASSISTANT COLLECTOR (RECOVERY) REGIONAL

TAX OFFICE, PESHAWRA and 3 others---Respondents

Writ Petition No.3085 of 2009, decided on 9th December, 2009.

Interpretation of statutes---

----Change in law and forum by virtue of repeal or, amendment-

--Effect---Change in law and forum by virtue of repeal or
amendment, could not take away right of appeal and powers of
forum granted by previous law, if such right or forum existed at
the time of the commencement of lis.

Idrees Ahmad and others v. Hafiz Fida Ahmad Khan and 4

others PLD 1985 SC 376 and Sona and another v. The State and
others PLD 1970 SC 264 ref.

Isaac Ali Qazi for Petitioner.

Nemo for Respondents.

Date of hearing: 9th December, 2009.

Peshawar High Court

 2496

JUDGMENT

EJAZ AFZAL KHAN, C J.--- Petitioner through the instant

writ petition has asked for the issuance of an appropriate writ
declaring the order in original and the notice dated 12-11-2009
being without jurisdiction, lawful authority, coram non judice
and of no effect whatever.

2. Learned counsel appearing on behalf of the petitioner by

referring to the Finance (Amendment) Ordinance, 2009,
contended that when by virtue of amendment the word
"Collector" has been substituted by the word "Commissioner"
and no body has been notified as such therefore, a petition
under Article 199 of the Constitution of Islamic Republic of
Pakistan, 1973 alone would be an adequate as well as
efficacious remedy in the circumstances of the case.

3. We have gone through the available record carefully and

considered the submissions of the learned counsel for the
petitioner.

4. Change in law and forum by virtue of repeal or amendment

cannot take away a right of appeal and powers of a forum
granted by a previous law, if such right or forum existed at the
time of the commencement of lis. The cases of Idrees Ahmad
and others v. Hafiz Fida Ahmad Khan and 4 others PLD 1985
SC 376 and Sona and another v. The State and others PLD
1970 SC 264 may well be referred in this behalf. Though even
an Act has been passed on 30th June, 2009 but it, too, would
not affect the legal position as stated above. We, thus, do not
agree with the learned counsel for the petitioner that the
petitioner has been left without any remedy till the notification
of the Commissioner when it is not disputed that the lis in this
case commenced much before the promulgation of the
Ordinance, We, however, while disposing of this petition,
direct the Collector to proceed with the case accordingly.

Peshawar High Court

 2497
H.B.T./217/P
Order accordingl

P L D 2010 Peshawar 7

Before Ejaz Afzal Khan, C.J. and Abdul Aziz Kundi, J

HAZRAT BAZ---Petitioner

Versus

POLITICAL AGENT/DISTRICT MAGISTRATE KHYBER

AGENCY and 2 others---Respondents

Writ Petition No.1946 of 2009, decided on 15th December,

2009.

Control of Narcotic Substances Act (XXV of 1997)---

---Ss. 9, 46 & 48---Constitution of Pakistan (1973), Art.199---

Constitutional petition---Possession of narcotic---Appreciation of
evidence---Establishment of Special Court---Trial of accused in the
Tribal Areas by the Political Agent---Contention of counsel for the
petitioner/accused was that where the court was not established
and notified in accordance with the provisions of S.46 of the
Control of Narcotic Substances Act, 1997 in the Tribal Areas, the
petitioner could not be tried by the Political Agent; and that entire
proceedings and subsequent orders passed by the next higher fora
in the hierarchy being against law and statute were liable to be
struck down---Counsel appearing on behalf of the Political Agent,
on the other hand had contended that once Control of Narcotic
Substances Act, 1997 was extended to the Federally Administered
Tribal Areas vide notification dated 16-11-1998, the Political
Agent had the powers to try the petitioner/accused---No doubt
Control of Narcotic Substances Act, 1997 had been extended to the
Tribal Areas, similar powers of Sessions Judge had also been

Peshawar High Court

 2498
conferred on the Political Agent by virtue of notification, but a
Virgil" not constituted under Frontier Crimes Regulation, 1911
could not be treated as a court established in accordance with the
requirements of S.46 of the Control of Narcotic Substances Act,
1997 in the light of overall scheme of said Act---In the first
instance, it required establishment of Special Courts and then
appointment of a Sessions Judge or an Additional Sessions Judge
as a Judge Special Court after consultation with the Chief Justice
of the High Court---Courts thus established and the Special Judge
appointed was to try accused in the cases registered under Control
of Narcotic Substances Act, 1997---If the trial terminated in
conviction or acquittal, an appeal thereagainst would be to the
High Court and would be heard by a Bench of not less than two
Judges, when seen in the light of S.48 of the Control of Narcotic
Substances Act, 1997---Held, Political Agent was not competent to
try accused; and that the next higher fora in the hierarchy were not
competent to hear appeal or revision---Impugned conviction and
sentence awarded to accused was set aside and accused was
directed to be released on bail---Federal Government was directed
by High Court to take necessary measures for the establishment of
a Special Court in the area in accordance with the provisions of the
Control of Narcotic Substances Act, 1997.

Nasruminullah for Petitioner.

Iqbal Ahmad Durrani, Iqbal Muhammad, D.A.-G. for Respondent

No.3.

Ishtiaq Ibrahim A.A.-G. for Respondent No.2.

Date of hearing: 15th December, 2009.

JUDGMENT

EJAZ AFZAL KHAN, C J.---Hazrat Baz petitioner herein has

questioned the order dated 21-7-2007 of the Political Agent,
Khyber Agency, and those of higher fora in the hierarchy whereby

Peshawar High Court

 2499
he has been sentenced to ten years' R.I. with a fine of Rs. one lac,
or in default to undergo 2-1/2 years' S.I.

2. Learned counsel appearing on behalf of the petitioner contended

that where the Court was not established and notified in
accordance with the provisions of section 46 of the CNSA in the
Tribal Areas, the petitioner could not be tried by the Political
Agent and that the entire proceedings and subsequent orders
passed by the next higher fora in the hierarchy being against law
and statute are liable to be struck down.

3. Learned counsel appearing on behalf of the Political Agent

contended that once the CNSA was extended to the Federally
Administered Tribal Areas; vide SRO 1295(I)/98, dated 16-11-
1998 with addition of section 2(c) in the 2nd Schedule, the
Political Agent had the powers to try the petitioner. Learned
counsel by referring to the Notification No.8-W, dated 9-3-1939,
contended that where the powers of Sessions Court are also
conferred on the Political Agent, no infirmity much less legal can
be found in the trial of the petitioner or in the decisions given by
the next higher fora in the hierarchy. The learned A.A.-G.
appearing on behalf of the Federal Government also adopted the
stance taken by the learned counsel for the Political Agent. Mr.
Ishtiaq Ibrahim, A.A.-G. appearing on behalf of the State was also
in agreement with the proposition canvassed at the bar by the
learned counsel for the Political Agent.

4. We have gone through the 'record carefully and have also

considered the submissions made by the learned counsel for the
parties.

5. No doubt, CNSA has been extended to the tribal areas by virtue

of the notification mentioned above. Similarly powers of Sessions
Judge have also been conferred on the Political Agent by virtue of
the Notification cited above but can a "Jirga" constituted under the
FCR be treated as a Court established in accordance with the

Peshawar High Court

 2500
requirements of section 46 of the CNSA. The answer to this
question can be in affirmative if we confine ourselves to the
Notification cited above. But it would certainly be in negative if
seen in the light of the over all scheme of the Act. It, in the first
instance, requires establishment of Special Courts and then
appointment of a Sessions Judge or an Additional Sessions Judge
as a Judge Special Court, after consultation with the Chief Justice
of the High Court. The Courts thus established and the Special
Judge thus appointed is to try the accused in the cases registered
under the Act. If the trial terminates in conviction or acquittal, an
appeal thereagainst lies to the High Court and is heard by a Bench
of not less than two Judges when seen in the light of section 48 of
the Act. We despite over-stretching the Notifications mentioned
above in consonance with the thrust of the arguments addressed at
the bar by the learned counsel for the respondents, cannot afford to
agree with them as this would not only defeat the provisions of the
Act but their spirit as well. We, thus without indulging in
unnecessary semantics or verbal quibbles, would straightaway hold
that the Political Agent was not competent to try the petitioner and
that the next higher fora in the hierarchy were not competent to
hear appeal or revision.

6. This petition is thus allowed, the impugned conviction and

sentence is set aside and the petitioner Hazrat Baz who has been in
Jail ever since his trial, is directed to be released on bail if he
furnishes bail bonds in the sum of Rs. Three lac, with two sureties,
each in the like amount to the satisfaction of the Political Agent
Khyber agency.

7. We, therefore, direct the Federal Government to take necessary

measures for the establishment of a Special Court in the area in
accordance with the provisions of the Act mentioned above. We
also direct the prosecution to forward the case of the petitioner to
the Court of competent jurisdiction, if and when constituted. Office
is directed to send a copy of this judgment to the Federal Secretary
(Law and Justice Divisions) Islamabad, for necessary action, as
discussed above.

Peshawar High Court

 2501

H.B.T./9/P
Petition allowe

2010 C L D 975

[Peshawar]

Before Ejaz Afzal Khan, C.J. and Mazhar Alam Khan, J

Messrs BANK ALFALAH LIMITED through Authorized

Officer---Petitioner

Versus

EXCISE AND TAXATION OFFICER and 3 others---

Respondents

Writ Petitions Nos. 1982 of 2006, 742, 1107 of 2007,950 of 2008

and 188 of 2009 decided on 10th June, 2010.

Banking Companies Ordinance (LVII of 1962)---

---S.5(c)---Cantonments Act (II of 1924), S.60---Constitution of

Pakistan (1973), Arts.163, 199 & Fourth Sched. Part-I, Entry 48---
Constitutional petition---Levy of professional tax by Provincial
Government on banking Company housed in Cantonment area---
Plea of Bank that its Head Offices located in other Provinces had
paid such tax according to their paid up capital, thus, its Branch

Peshawar High Court

 2502
could not be subjected to such levy; that such levy was illegal as its
Branch Office located in Cantonment area would not fall within
domain of Provincial Government; and that such levy covered by
Entry 48 of Fourth Sched. of the Constitution would not fall within
competence of Provincial Government---Validity---Such tax could
be levied on limited company, Mudariba, Mutual Fund and other
corporate bodies having prescribed paid up capital or reserves in
preceding years---Payment of such tax in one Province could not
diminish or dilute its liability once Bank decided to expand its
activity by entering into another Province---Powers of Cantonment
Board to impose tax within scope of S.6O of Cantonments Act,
1924 would not take any such business, trade, calling or
employment carried in Cantonment area out side scope of Province
or its Assembly---Such tax was not imposed on Cantonment, but
on business carried therein by petitioner---In absence of any
provision whether express or implied in any law for the time being
in force, powers of Provincial Government to levy such tax on
business carried in Cantonment area could not be restricted---
Petitioner being a limited company, could not escape liability of
such levy irrespective of fact whether its Head Offices were within
or outside Province---Bank/Banking Companies could not be
termed as "corporation" used in Entry 48 of Fourth Sched. of the
Constitution---Impugned levy was legal---High Court dismissed
constitutional petition in circumstances.

Province of Punjab and others v. Sargodha Textile Mills Ltd. and

others PLD 2005 SC 988 and Fist Leasing Corporation Ltd. v.
Government of N.-W.F.P. and others rendered in Writ Petition
No.1965 of 1998 decided on 28-1-2009 rel.

Ahmad Butt for Petitioners.

Farman Ullah Khattak and Waqar Ali DA-G for Respondents.

Date of hearing: 10th June, 2010.

Peshawar High Court

 2503
ORDER

EJAZ AFZAL KHAN, C.J.---By this single judgment, we

propose to decide W.P. Nos.1982 of 2006, 742 and 1107 of 2007,
950 of 2008 and 188 of 2009, as the petitioners therein seek to
question the imposition of professional tax.

2. The learned counsel appearing on behalf of the petitioners

contended that where the petitioners being the companies with
their Head Offices at Karachi, Islamabad and Lahore, have already
paid professional tax according to their paid up capital, their
Branches cannot be subjected to such levy. The learned counsel
next contended that when the Branch offices of the petitioners are
housed in the Cantonment area, they go outside the domain of the
Provincial Government, therefore, levy of professional tax being
beyond its competence would be illegal and unlawful. The learned
counsel appearing in W.P. No.950 of 2008 contended that since the
Bank cannot be pushed within the definition of profession, trade or
calling, levy of professional tax thereon would be totally
unwarranted. The levy of professional tax on the Banking
Companies, the learned counsel added, is also unjustified, when
they being covered by Entry No.48 of the Federal Legislative List,
go outside the competence of the Provincial Assembly.

3. As against that, the learned counsel appearing on behalf of the

respondents contended that Article 163 of the Constitution of
Islamic Republic of Pakistan, 1973, enables the Provincial
Assembly to levy professional tax on professions etc. provided it
does not exceed the limits prescribed by the Act of the Parliament.
The learned counsel next contended that since the levy is within
the limits fixed by the Parliament, it cannot be questioned on any
score. The learned counsel to support his contention placed
reliance on the case of Province of Punjab and others v. Sargodha
Textile Mills Ltd. and others PLD 2005 SC 988. The learned
counsel next contended that the mere fact that the companies are
housed in the cantonment area cannot limit the powers of the

Peshawar High Court

 2504
Provincial Assembly when such area despite being part and parcel
of the cantonment lies within the province. The learned counsel by
referring to section 60 of the Cantonments Act submitted that the
Cantonment Board has, no doubt, powers to impose any tax in any
cantonment with the previous sanction of the Federal Government
which may be imposed in any Municipality in the province
wherein such cantonment is situated but it nowhere restricts the
powers of the Provincial Assembly to impose tax on a person,
company, trade, employment or calling, simply because its branch
is housed in the cantonment area. The learned counsel to support
his contention placed reliance on the case o f Fist Leasing
Corporation Ltd. v. Government of N.-W.F.P. and others rendered
in Writ Petition No.-1965 of 1998 decided on 28-1-2009.

4. We have gone through the record carefully and have also

considered the submissions made by the learned counsel for the
parties.

5. How far the Provincial Assembly is competent to impose the

Provincial tax on a profession, trade, calling or employment, has
been elaborately dealt with by the apex Court in the case of
Province of Punjab and others v. Sargodha Textile Mills Ltd. and
others PLD 2005 SC 988, in the words which are reproduced as
under:--

"We have heard the learned Advocate General, Punjab, the

learned Deputy Attorney General for Pakistan, the learned
counsel for the Cantonment Board as well as the learned
counsel for the companies. The subject-matter of
professional tax has a chequered legislative history. The
government of India Act, 1935, by section 111, as also the
Government of India Act, 1935, by Item No.46 II
(Provincial Legislative List) of the Seventh Schedule,
empowered the Provincial Legislatures of India to levy the
Professional Taxes. Certain provinces imposed the
professional taxes on the basis of income which were

Peshawar High Court

 2505
considered to be quite unjust and inequitable as if they were
in the nature of income tax in disguise. The Calcutta
Municipal Corporation and other bodies in the State of
West Bengal imposed the annual professional tax at a flat
rate ranging from Rs.3 to Rs.50 for individuals and from
Rs.20 to Rs.200 from companies calculated on the basis of
their paid-up capital. The Government of United Provinces
by taking advantage of the unlimited power imposed the
employment tax on all salaried persons who were entitled
to draw monthly emoluments of Rs.250 or above. The
Governor-General of India took up the matter with the
Secretary to State for India for the removal of anomalies
with regard to the unfettered powers of the Provincial
Governments to impose the professional tax. Therefore, the
British Parliament enacted the India and Burma
(Miscellaneous Amendments) Act, 1940. Item No.46 list II
(Provincial Legislative List) in the Seventh Schedule of Act
of 1935 was amended. The professional tax was made
subject to newly-inserted section 142-A which clearly laid
down, inter alia, that a provincial law relating to
professional taxes for the benefit of a province or a
municipality, district or local board or other local authority
would not be invalid on the ground that it was with respect
to a tax on income provided that the professional tax would
not exceed Rs.50 per annum. The Constitution of India, by
Article 276 had originally fixed a maximum limit of Rs.250
of the professional tax which was raised to Rs.2,500 by the
Indian Constitution (Sixtieth Amendment) Act, 1988.

Another relevant paragraph also deserves verbatim

reproduction which runs as under:--

"Both in Pakistan and India the companies were made

liable to pay the professional tax, by the provincial law, in
the past as well. Even by the West Pakistan Finance Act,
1964, the companies were made liable to pay the

Peshawar High Court

 2506
professional tax. Generally speaking, a company is
considered to be a body of persons associated for the
purpose of business. It is a juristic and artificial person
created under the provision is of the Companies Ordinance,
1984, possessed with certain legal rights and charged with
certain legal duties. The word "person" has been defined in
Article 260 of the 1973 Constitution so as "to include any
body politic or corporate". The same is the definition of
"person" is found in section 3(47) of West Pakistan General
Clauses Act, 1956. Therefore, the companies cannot be
considered as falling outside the purview of the provincial
law in the matter of imposition of professional taxes.
Article 163 of the Constitution clearly postulates that the
professional taxes shall not be considered as a tax on
income. It was with a view to remove the doubt that all the
Constitutional dispensations had made it clear that a
provincial law imposing professional taxes would not be
regarded as imposing a tax on income."

6. Now the question crops up whether a company with the Head

Office outside the province having paid the professional tax
according to its paid up capital, is liable still to pay professional
tax simply because one of its Branches is functioning in the
province? Our answer to the question would be a simple "yes"
because what is required for the levy of such tax is that it must be a
limited company, Mudaraba, mutual fund and other body corporate
with paid up capital or reserves in the preceding years. If the
petitioners come within the pale of any these, as they do, they
cannot escape the liability of such levy, irrespective of the fact
whether their Head Offices are within or outside the province.
Even otherwise, a company which enters a province other than the
one where its Head Office is established with all its paraphernalia
for any business activity shall invariably be exposed to such levy.
Payment of professional tax in one province cannot diminish or
dilute its liability once it decides to expand its activity by entering
into another province.

Peshawar High Court

 2507
7. Next comes the question of Cantonment. It is true that
cantonment being a body at par with a Municipality can levy taxes
the way and to the extent the latter does within the scope of section
60 of the Cantonments Act, but this under no canons of
interpretation takes any such business, trade, calling or
employment carried in the Cantonment area outside the scope of
the Province of its Assembly. What is provided by section 60 of
the Act is that each has domain of its own. Neither one nor the
other can meddle in each other's domain. In the absence of any
provision whether express or implied in any law for the time being
in force, the powers of the Provincial Government to levy the
professional tax on the business carried in the cantonment area,
cannot be restricted. If the argument of this nature is allowed to
prevail then the professionals whose offices are housed in the
Cantonment area would go outside the province and therefore
cannot be subjected to this levy. On this analogy even vehicles
owned by the residents of Cantonment area cannot be made liable
to any provincial tax. The argument of this nature and character
being pedantic, if not preposterous, cannot be given much weight.
It may not, however, be forgotten that tax is not imposed on
Cantonment but on the business carried therein.

8. The argument that the levy of professional tax on Banks is all

the more unjustified when the Banks being covered by Entry
No.48 of the Federal Legislative List, go outside the competence of
the Provincial Assembly, has not impressed us as the Banks or
Banking Companies cannot be termed as corporation in any sense
of the word. They being limited companies cannot be pushed into
the above-mentioned entry with all the noise and chaos of
semantics heard and witnessed during the course of arguments.

9. When considered in this background, we do not think the levy

of professional tax on any of the petitioners can be held as illegal
or ultra vires.

10. For the reasons discussed above, we finding no substance in

these writ petitions dismiss them, with no order as to costs.

Peshawar High Court

 2508

S.A.K./231/P
Petitions dismissed.

2011 P T D 104

[Peshawar High Court]

Before Ejaz Afzal Khan, C.J. and Yahya Afridi, J

Messrs DELTA CNG STATION PESHAWAR

Versus

FEDERATION OF PAKISTAN, through Secretary Law,

Islamabad and 5 others

Writ Petitions Nos. 282, 1364, 1829, 1995, 2773, 3003, 3008,
3014, 3015, 3024 of 2009 and 81, 82, 83, 84 of 2010, decided on
28th September, 2010.

Income Tax Ordinance (XLIX of 2001)---

----Ss. 234-A(3) & 235---Sales. Tax Act (VII of 1990), Ss.3 & 7---
Constitution of Pakistan, Art.199---Constitutional petition---

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 2509
Petitioner, CNG Station, assailed the vires of S.235 of the Income
Tax Ordinance, 2001 and S.7-A of the Sales Tax Act, 1990
contending that tax collected under S.234-A(3) of Income Tax
Ordinance, 2001 was final tax on income of CNG Stations,
therefore, no further tax could be levied on the consumption of
electricity under S.235 of Income Tax Ordinance, 2001 as the same
would amount to double taxation---Petitioners further contended
that subordinate legislation could not override the provisions of S.3
of Sales Tax Act, 1990 which provided for sales tax at the rate of
16%---Validity---Tax collected under S.234-A(3) of the Income
Tax Ordinance, 2001 was final vis-a-vis income of a CNG station
arising from the consumption of gas only'---Provisions of S.234-
A(3) of Income Tax Ordinance, 2001 had nothing to do with the
consumption of electricity used by a taxpayer---Sections 234-A(3)
and 235 of Income Tax Ordinance, 2001, dealt with different
subjects providing for collection of taxes under different schedules
of rates and were not repugnant to each other---Sections 234-A(3)
and 235 of Income Tax Ordinance, 2001 being neither
discriminatory nor confiscatory, were not beyond the competence
of legislature---Tax on value addition was levied by virtue of S.7A
of Sales Tax Act, 1990 which was prefaced with non obstante
clause---Provisions of S.235 of Income Tax Ordinance, 2001 and
that of S.7A of Sales Tax Act, 1990 were not ultra vires the
Constitution---Petitions were dismissed for being without any
substance.

Messrs Elahi Cotton Mills Ltd. and others v. Federation of

Pakistan through Secretary Ministry of Finance Islamabad and 6
others PLD 1997 SC 582 fol.

Zafar Ali Khan and another v. Government of N.-W.F.P. through

Chief Secretary and 3 others PLD 2004 Pesh. 263; Indus Jute Mills
Ltd. through Chief Executive v. Federation of Pakistan through
Secretary Finance, Islamabad and 3 others 2009 PTD 1473 and

Peshawar High Court

 2510
Messrs Fauji Cement Co. Limited v. The Federation of Pakistan
through Secretary Finance, Ministry of Finance and 4 others Writ
Petition No. 1553 of 2008 rel.

Hidayat Ullah Khattak for Petitioner.

Rehmanullah, Subhanallah, Muhammad Habib Qureshi, Shahid

Raza Adnan Orakzai and Muhammad Khair Saheed Khan, DAG
for Respondents.

Date of hearing: 28th October, 2010.

JUDGMENT

EJAZ AFZAL KHAN, C.J.---By this single judgment, we

propose to decide Writ Petition .Nos.282, 1364, 1829, 1995, 2773,
3003, 3008, 3014, 3015, 3024 of 2009, 81, 82, 83 and 84 of 2010
wherein vires of section 235 of the Income Tax Ordinance, 2001;
and section 7A of the Sales Tax Act, 1990 and the rules framed
there-under have been challenged.

2. Learned counsel for the petitioners contended that once under

section 234-A(3) of the Income Tax Ordinance, 2001 (hereinafter
referred to as "Ordinance"), the tax collected under the said

Peshawar High Court

 2511
provision is said to be final tax on income of CNG Stations, no
further tax can be levied on the consumption of electricity under
section 235 of the Ordinance. Such tax, the learned counsel added,
would be all the more illegal and tantamount to double taxation
when it has been provided in section 234-A(3) of the Ordinance
that the tax thus collected shall be final on the income of the CNG
station. The learned counsel next contended that where section 3 of
the Sales Tax Act, 1990 (hereinafter referred to as "Act"), clearly
provides that the sales tax shall be charged at the rate of 16% no
rule which is an off-shoot of subordinate legislation can be held to
override it.

3. As against that, learned counsel appearing on behalf of the

respondents contended that the tax collected under section 234-
A(3) of the Ordinance shall no doubt be final on the income of a
CNG Station arising from the consumption, of the gas referred to
in subsection (1) of section ibid, but levy of tax on consumption of
electricity under section 235 of the Ordinance, being an
independent event, cannot be intermingled with the one levied
under section 234(A)(3) of the Ordinance, that too when the rate of
tax under either of the provisions is regulated by the Schedules
framed thereunder. The learned counsel next contended that the
levy and collection of tax on value addition was not provided by
Rules alone but by virtue of section 7A of the Act which is
prefaced with non obstante clause. Therefore, neither section 7A of
the Act nor the Rules made there under can be held to be ultra vires
under any canons of interpretation. The learned counsel to support
their contentions placed reliance on the cases of Messrs Fauji
Cement Co. Limited v. The Federation of Pakistan through
Secretary Finance, Ministry of Finance and 4 others (Writ Petition
No. 1553 of 2008), decided on 5-5-2009 by the Islamabad High
Court and Indus Jute Mills Ltd. through Chief Executive v.
Federation of Pakistan through Secretary Finance, Islamabad and 3
others (2009 PTD 1473).

Peshawar High Court

 2512
4. We have gone through the record, the relevant provisions of the
Statutes and the judgments cited at the bar by the learned counsel
for the parties carefully and also considered the submissions of the
learned counsel for the parties.

5. Before we proceed to discuss the arguments of the learned

counsel for the parties, it is worth to refer to Section 234-A of the
Ordinance which reads as under:-

"234A. CNG Stations.---(1) There shall be collected

advance tax at the rate specified in Division VIB of Part-Ill
of the First Schedule on the amount of gas bill of a
Compressed Natural Gas station.

(2) The person preparing gas consumption bill shall charge

advance tax under subsection (1) in the manner gas consumption
charges are charged.

(3) The tax collected under this section shall be a final tax on the
income of a CNG Station arising from the consumption of the gas
referred to in subsection (1).

(4) The taxpayers shall not be entitled to claim any adjustment of

withholding tax collected or deducted under any other head, during
the tax year."

Peshawar High Court

 2513
6. The other provision in this behalf is section 235 of the
Ordinance which also merits a reference and thus runs as under:--

"(235) Electricity consumption.---(1) There shall be

collected advance tax at the rates specified in Part-IV of the
First Schedule on the amount of electricity bill of a
commercial or industrial consumer.

(2) The person preparing electricity consumption bill shall

charge advance tax under subsection (1) in the manner
electricity consumption charges are charged.

(3) Advance tax under this section shall not be collected

from a person who produces a certificate from the
Commissioner that his income during tax year is exempt
from tax.

(4) Under this Section.--

(a) in the case of a taxpayer other than a company, tax

collected upto bill amount of thirty thousand rupees per
month shall be treated as minimum tax on the income
of such persons and no refund shall be allowed;

(b) in the case of a taxpayer other than a company, tax

collected on monthly bill over and above thirty

Peshawar High Court

 2514
thousand rupees per month shall be adjustable; and'

(c) in the case of a company, tax collected shall be

adjustable against tax liability."

6A. A perusal of section 234-A(3) of the Ordinance would reveal

that the tax collected under this Section shall be final tax on the
income of a CNG Station arising from the consumption of the gas
referred to in subsection (1). It is well worth remarking that the
finality of this tax has been linked with the consumption of the gas
alone. It, by no stretch of imagination, has touched any other tax to
be levied on the consumption of electricity made by a taxpayer
other than a company or any other commercial or industrial
consumer. Each of these provisions being independent and
envisaging different situations cannot be intermingled with each
other. The Legislature in its wisdom has prescribed a Schedule for
collection of tax under section 234-A which shall be 4% of the gas
consumption charges. Similarly, it has provided' a schedule under
section 235 of the Ordinance giving rates on which such tax shall
be levied. How the tax levied by these two provisions can be
tantamount to double taxation is not understandable as far as the
bare reading of above mentioned provisions and the Schedules
given thereunder are concerned. There is also nothing in section
235 of the of Ordinance as could, in any way, show that it runs
counter to or is in any way repugnant to the provisions contained in
Section 234-A of the Ordinance.

7. Now the question crops up whether any of the provisions cited

above, can be held to be ultra vires. There is absolutely nothing
before us or in the arguments of the learned counsel for the
petitioners as could even remotely suggest that either section 234-
A or 235 of the Ordinance is beyond the legislative competence of
the law maker. There is also nothing on the record to show that
either of the provisions is discriminatory or violative of any

Peshawar High Court

 2515
Constitutional provision so as to justify its scratch from the statute.
The rate of tax as per respective Schedule to the provisions being
fair and far from being excessive cannot be termed confiscatory
either. Therefore, we do not feel inclined to declare any of the
provisions as ultra vires. We are rather supposed to lean in favour
of their constitutionality, so long as they are within the legislative
competence of the lawmaking body. This aspect of the case has
already, been dealt with in a quite befitting and beautiful manner
by the honourable Supreme Court in the case of Messrs Elahi
Cotton Mills Ltd and others v, Federation of Pakistan through
Secretary M/O, Finance Islamabad and 6 others (PLD 1997 SC
582). The honourable Supreme Court while upholding the
presumption in favour of Constitutionality of the legislative
enactments held asunder:--

"(44) Adverting to the above first reason, it may be

observed that it is true that the power to tax cannot be used
to embarrass and destroy the business/occupations which
are sine qua non for the propriety of the people and the
country. The object of the levy and recovery of taxes as
pointed out hereinabove is to run the State and to make
efforts for creation of an egalitarian society. If the rates of
taxes are so high and disproportionate to the actual earnings
or earning capacities that they destroy the taxpayers, the
very object of their levy and recovery is defeated. It has,
therefore, been held by the superior Courts of the foreign
jurisdiction as well as' of Pakistani jurisdiction including
this Court that the taxes should not be expropriatory and
confiscatory in nature and that the same should not be
imposed in such a way so as to result in acquiring
properties of those to whom the incidence of taxation fell
and if that is so, then such legislation would be violative of
fundamental rights to carry on business or to hold
properties as guaranteed by the Constitution. The learned
counsel for the appellants have heavily relied upon the
judgment of this Court in the case of Government of

Peshawar High Court

 2516
Pakistan v. Muhammad Ashraf (supra), in which this Court
accepted the above legal proposition that a tax, which is
confiscatory in its nature, would be violative of the
fundamental rights relating to carrying on business and
holding properties, but remanded the case to the High Court
to examine the question, as to whether the rate of
regulatory duty on Soyabean Oil imposed was of
confiscatory nature. We are inclined to reiterate the
principle of law enunciated in the above report. However,
we are unable to agree with the learned counsel for the
appellant that the rates of taxes imposed under the
impugned sections 80-C, 80-CC and 80-D of the Ordinance
are confiscatory and expropriatory in nature. Since there is
a presumption in favour of legislative competence as held
in a number of judgments referred to hereinabove, the
burden to show that the impugned taxes are confiscatory or
expropriatory, was on the appellants. In our view, they have
failed to bring on record any reliable material on the basis
of which it can be concluded that the same are confiscatory
or expropriatory. Messrs Dr. Ilyas Zafar and Iqbal Naim
Pasha, while arguing Civil Appeal No.478 of 1995,
submitted that the appellants in the above appeal declared
Rs.6,47,243 as the net profit for the assessment year
involved but they were made to pay presumptive tax
amounting tq Rs.66,00,282. Whereas Mr. Sikandar Hayat,
who argued for the appellant (National Construction
Company) in Civil Appeal No.1496 of 1995, contended
that the appellant suffered loss of Rs.24,88,18,613 in the
assessment year 1992-93 but they were made to pay
presumptive tax under section 80-C Rs.1,35,29,726. The
above two instances cannot be treated as sufficient for
rebutting the presumption in favour of the competency of
the Legislature. The question, as to whether a particular tax
is confiscatory or expropriatory, is to be determined with
reference to the actual earning or earning capacity of an
average prudent successful entrepreneur in a particular
trade or business. The fact that a particular assessee has
suffered loss/losses during certain assessment years, is not

Peshawar High Court

 2517
germane to the above question. In this regard reference may
again be made to the case of the Madurai District
Cooperative Bank Ltd. v. Third Income Tax Officer,
Madurai (supra) referred to hereinabove in para.28 (x),
wherein taxable income of the assessee declared was
Rs.51,763; whereas the tax imposed was Rs.76,674,07
including surcharge. Indian Supreme Court sustained the
above levy and inter alia held that what is not income under
the Income Tax Act can be made income under the Finance
Act or exemption granted by the Income Tax Act can be
withdrawn by the Finance Act or its efficacy can be
reduced."

8. The argument with regard to the levy of sales tax on value

addition too has not moved us when it is clearly, provided by
section 7A of the Sales Tax Act which is pre-faced with non
obstante clause.

9. When this being the position, we do not agree with the learned
counsel for the petitioners that any of the provisions of section 235
of the Income Tax Ordinance or section 7A of the Sales Tax Act is
violative of the Constitutional provisions or in any way ultra vires.
The judgments rendered in the cases of Zafar Ali Khan and another
v. Government of N.-W.F.P. through Chief Secretary and 3 others
(PLD 2004 Pesh. 263) and Indus Jute Mills Ltd. through Chief
Executive v. Federation of Pakistan through Secretary Finance,
Islamabad and 3 others (2009 PTD 1473) and Messrs Fauji Cement
Co. Limited v. The Federation of Pakistan through Secretary
Finance, Ministry of Finance and 4 others (Writ Petition No. 1553
of 2008), decided on 5-5-2009 by the Islamabad High Court may
well be referred in this behalf.

10. Resultantly, all the petitions being without any substance are
dismissed.

Peshawar High Court

 2518

A.R.K./304/P

Petitions dismissed.

Peshawar High Court

 2519

2006 P T D 545

[Peshawar High Court]

Before Muhammad Qaim Jan Khan and Ejaz Afzal Khan,

JJ

Brig. (R) M. EJAZ AKBAR, PAKISTAN INTERNATIONAL

PUBLIC SCHOOL,

ABBOTTABAD

Versus

COMMISSIONER OF INCOME TAX,

ABBOTTABAD/PESHAWAR

Tax Appeal No.7 of 2001, decided on 24th February, 2005.

( a ) Wealth Tax Act (XV of 1963)---

----S.27---`Question of law'---Defined---`Question of law', `mixed

question of law and fact' and `question of fact'---Distinguished---
Term `question of law' is used in three distinct but related senses, it
in the first place means a question which is authoritatively
answered by law itself; in the second sense it means a question as
to what the law on a particular point is or what is the true and real
meaning behind a provision of law which is ambiguous and in the
third sense it means a question which relates to the applicability or
otherwise of a provision of law in view of the facts proved in a
given case-Third category of questions can also be called mixed
question of law and fact, since their answers one way or the other
depend on the existence or otherwise of certain facts; for instance

Peshawar High Court

 2520
the question as to what is the period of limitation for a suit for
recovery of possession by an owner after his dispossession is
purely a question of law but whether the suit was instituted within
the period provided by the first schedule of Limitation Act, 1908,
would essentially be one of fact---Any other question which does
not fall in any of the three categories would be a question of fact.

( b ) Wealth Tax Act (XV of 1963)---

----S.2 (16)---`Net wealth' and `debt'---Connotation---Net wealth

means the amount which is exclusive of debts---Debt is a sum
payable now or in future by reason of a present obligation and
means an amount owed to some other person and includes an
obligation to pay.

Commissioner of Wealth Tax v. Hoor Bai Ibrahim 1992 PTD

1972 and Webb v. Stenton (1883) 11 QBD 518 rel.

(c) Wealth Tax Act (XV of 1963)---

----Ss. 2 (16), 27 & 35---Appeal---Maintainability---Question of

law, determination of---Refundable securities---Assessee was a
school and had refundable securities of students deposited with it--
-Assessing Officer initially treated the securities as debts but later
on he rectified his opinion under S.35 of Wealth Tax Act, 1963,
and imposed tax on such securities---Plea raised by the assessee
was that refundable securities were debts and were to be excluded
from assets---Validity---Answer to the plea depended on the
existence of two facts, first was that the securities must be debts by
virtue of their being refundable and the second was that they had
been incurred in relation to assets in respect of which wealth tax
was payable---Where no evidence whatever was available on the
record to prove that the securities being refundable had ever been
refunded or had been incurred in relation to the assets on which
wealth tax was payable, it would not be question which fell within
the category of questions of law inasmuch as it was not
authoritatively answered by the law itself---Such question did not
fall in the category of questions of law as no question had been

Peshawar High Court

 2521
raised as to what the law on a particular point was or what was the
true and real meaning behind a provision of law which was
ambiguous---Question of refundable security did not fall even in
such category of questions of law when the very existence of the
facts attracting the applicability of provision had not been proved--
-Questions of law could not be answered in a void and vacuum on
the basis of assumptions or surmises and conjectures---Forums
below had based their findings on no evidence, the question
relating to securities could not be brought within any of the
categories of questions of law in general---When none of the
formulations raised a question of law, the appeal being
misconceived, did not call for interference---Appeal was dismissed
in circumstances.

Oriental Investment Co. Ltd. v. Commissioner of Income Tax,

Bombay PLD 1958 Supreme Court (Ind.) 151 and Shree
Meenakshi Mills Ltd. Madurai. v. Commissioner of Income Tax,
Madras PLD 1957 Supreme Court (Ind.) 188 rel.

Bashir Ahmad for Appellant.

Sardar Ghulam Mustafa and Eid Muhammad Khattak for

Respondent.

Date of hearing: 26th January, 2005.

JUDGMENT

EJAZ AFZAL KHAN, J.---Messrs Pakistan International Public

School Abbottabad, appellant herein, filed this appeal under
section 27 of the Wealth Tax Act, 1963 (Act No. XV of 1963),
with the following questions:

Peshawar High Court

 2522
( 1 ) Whether on the basis of facts obtaining on W. Tax
record of the appellant where securities claimed as debts
were allowed in the original assessments by the Assessing
Officer after consulting the income tax record, rectification
made by the same Assessing Officer under section 35 was
not merely a change of opinion?

( 2 ) Whether on the basis of income tax assessments

framed from year to year, where securities refundable to
students were accepted by the Income Tax Department as
source and liabilities against the construction of school
building, the learned Bench of the Tribunal was right to
hold that refundable securities are not loan or debts, hence,
not admissible as debts within the meaning of section
2(1)(16)(ii) of the Wealth Tax Act, 1963?

( 3 ) Whether in view of the fact that there was no factual

error or omission in the original assessments, the learned
Bench of the Tribunal was right in law to hold that mistake
was apparent from the record and consequently
rectification was rightly made under section 35 of the
Wealth Tax Act, 1963?

( 4 ) Whether on the basis of proven case history where

securities refundable as disclosed from year to year were
accepted by the Income Tax Department as source of
investment against school's building in the past, the learned
Bench of the ITAT was right to hold that appellant has
failed to establish that these securities were spent on the
construction of school building?

Peshawar High Court

 2523
2. The learned counsel appearing on behalf of the appellant, argued
that where the refundable securities of the students are debts within
the meanings of section 2(16)(ii) of the Wealth Tax Act and have
been incurred in relation to the assets in respect of which wealth
tax has been paid, the liabilities arising therefrom were rightly
allowed in the original assessment order. The learned counsel by
referring to the case of Commissioner of Wealth Tax v. Hoor Bai
Ibrahim (1992 PTD 1972) argued that as the expression 'debt
owed' has not been defined in the Act, it is to be construed in its
ordinary dictionary meaning which means and contemplates
something that is owed especially money or a state of obligation to
pay something owed. He by concluding his arguments urged that
where the mistake was not apparent from the record, there was no
occasion whatever to rectify it by invoking the application of
section 35 of the Act.

3. As against that, the learned counsel appearing on behalf of the

respondent, argued that securities cannot be treated as debts,
therefore, they have rightly been taxed especially when nothing in
black and white has been brought on the record in the form of
Bank statement to show their refund. The learned counsel by
referring to section 35 of the Act, argued that where a liability was
wrongly allowed by the Wealth Tax Officer in his original order, it
being an error apparent from the record was rightly rectified.

4. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

5. The question whether the formulations projected by the

questions enumerated above, are questions of law or questions of
fact, cannot be answered unless we have a clear perception of what
is a question of law and what is a question of fact.

Peshawar High Court

 2524

6. The term question of law is used in three distinct but related

senses. It in the first place means a question which is
authoritatively answered by the law itself. In the second sense it
means a question as to what the law on a particular point is or what
is the true and real meaning behind a provision of law which is
ambiguous. In the third sense it means a question which relates to
the applicability or otherwise a provisions of law in view of the
facts proved in a given case. This category of questions can also be
called mixed questions of law and fact, since their answers one
way or the other depend on the existence or otherwise of certain
facts. For instance the question as to what is the period of
limitation for a suit for recovery of possession by an owner after
his dispossession is purely a question of law but whether the suit
was instituted within the period provided by the first schedule of
the Limitation Act would essentially be one of fact.

7. Any other question which does not fall in any of the categories
mentioned above, would be a question of fact. However, in the
cases of Oriental Investment Co. Ltd. v. Commissioner of Income
Tax, Bombay (PLD 1958 Supreme Court (Ind.) 151) and Shree
Meenakshi Mills Ltd. Madurai. V. Commissioner of Income Tax,
Madras (PLD 1957 Supreme Court (Ind.) 188), the Supreme Court
of India after reviewing a string of judgments suggested almost the
same tests for determining whether a question is one of fact or law
which are reproduced as under:

( 1 ) When the point for determination is a pure question of

law such as construction of a statute or document of title,
the decision of the Tribunal is open to reference to the
Court under section 66(1).

Peshawar High Court

 2525
( 2 ) When the point for determination is a mixed question
of law and fact, while the finding of the Tribunal on the
facts found is final, its decision as to the legal effect of
these finings is a question of law which can be reviewed by
the Court.

( 3 ) A finding on a question of fact is open to attack under

section 66(1) as erroneous in law if there is no evidence to
support it or if it is perverse.

( 4 ) When the finding is ones of fact, the fact that it is itself

an inference from other basic facts will not alter its
character as ones of fact.

8. With this perception about question of law and fact, we would

like to examine the relevant provision of the Act which reads as
under:

(2) Definitions.--(1) --------------

(1) -------------------------------

(2) -------------------------------

Peshawar High Court

 2526
(3) -------------------------------

(4) -------------------------------

(5) -------------------------------

(i) -------------------------------

(ii) -------------------------------

Explanation-------------------------------

(i) -------------------------------

(ii) -------------------------------

(iii) -------------------------------

(6) -------------------------------

Peshawar High Court

 2527

(7) -------------------------------

(8) -------------------------------

(9) -------------------------------

(10) -------------------------------

(11) -------------------------------

(12) -------------------------------

(13) -------------------------------

(14) -------------------------------

(15) -------------------------------

Peshawar High Court

 2528
(16) "net wealth" means the amount by which the aggregate
value computed in accordance with the provisions of the
Act of all the assets, wherever located, belonging to the
assessee on the valuation date, including assets required to
be included in his net

wealth as on that date under this Act, is in excess of the

aggregate value of all the debts owned by the assessee on
the valuation date other than.

(i) -------------------------------

(ii) debts which are secured on or which have been incurred

in relation to, any asset in respect of which wealth tax is not
payable under this Act;

(iii) -------------------------------

Explanation.--For the purpose of this clause.--

(i) -------------------------------

(ii) -------------------------------

Peshawar High Court

 2529
9. The above quoted provision would reveal that net wealth means
the amount which is exclusive of debts. The word 'debt' as defined
by Lord Lindlay in the case of Webb v. Stenton (1883) 11 QBD
518 at page 527, means a sum payable now or in future by reason
of a present obligation. It, as defined in the case of Commissioner
of Wealth Tax v. Hoor Bai Ibrahim (Supra), means an amount
owed to some other person and includes an obligation to pay.

10. Now the question crops up as to what is the status of the

securities and whether they can be termed as debts so as to exclude
them from assets. The answer to this question depends on the
existence of two facts which are envisaged by the provision itself.
The first is that they must be debts by virtue of their being
refundable and the second is that they have been incurred in
relation to assets in respect of which wealth tax is payable. But
where no evidence whatever is available on the record to prove that
they being refundable have ever been refunded or have been
incurred in relation to the assets on which wealth tax is payable,
quite obviously, it will not be a question which falls within the first
category of questions of law inasmuch as it is not authoritatively
answered by the law itself. It does not fall in the second category
of questions of law either, as no question has been raised as to
what the law on a particular point is or what is the true and real
meaning behind a provision of law which is ambiguous. It does not
fall even in the third category of questions of law when the very
existence of the facts attracting the applicability of the provision
has not been proved. Needless to say that this category of questions
cannot be answered in a void and vacuum on the basis of
assumptions or surmises and conjectures.

11. As it is not the case of the appellant that the forums below have
based their finding on no evidence, the question relating to
securities 'cannot be brought within any of the questions of law in
general and c question No.3 in particular as defined in the cases of
Oriental Investment Co. Ltd. v. Commissioner of Income Tax,
Bombay and Shree Meenakshi Mills Ltd. Madurai v.
Commissioner of Income Tax Madras (Supra). It thus follows that
formulations projected by questions Nos. 2 and 4 being essentially

Peshawar High Court

 2530
ones of fact would go outside the scope of section 27 of the Act
and so would the, ones projected by questions Nos. 1 and 3 as all
being interdependent on each other, involve almost the same
factual controversy.

12. When none of the formulations enumerated above, raises a

question of law, this appeal being misconceived on the face of it,
would call for no interference.

13. For the reasons discussed above, this appeal being without
merit is dismissed.

M.H./6/P
Appeal dismissed.

Peshawar High Court

 2531
2006 P T D 578

[Peshawar High Court]

Before Ejaz Afzal Khan and Salim Khan, JJ

Messrs LUCKY CEMENT LTD.

Versus

COMMISSIONER OF INCOME TAX, ZONE COMPANIES,

CIRCLE-5, PESHAWAR

Tax References Nos. 117 to 119 of 2003, decided on 22nd

November, 2005.

Income Tax Ordinance (XXXI of 1979)---

----Ss.22 & 30---Income from other sources---Investments with

financial institutions---Assessee company was incorporated for
setting up a cement plant for manufacture and sale of cement---
Company had raised great deal of funds before it embarked on the
enterprise and since. the funds were surplus, the company, instead
of keeping the funds idle had unutilized them consistently, invested
them in various financial institutions, earned returns thereon,
withdrew them and then reinvested them in the others for better
returns---Assessing officer referring to a clause of Memorandum of
Association, termed returns from financial institutions as income
from business-Validity-Such returns could not be termed as
income from business as the sole concern and business of the
company was to set up a cement plant for the manufacture and sale
of cement and not to earn returns by investing its funds in one
financial institution or the others for better returns---Returns from
financial institutions were income from sources to all intents and

Peshawar High Court

 2532
purposes, moreso when it did not fit in with the definition of
business of the company---Reference to any clause of
Memorandum of Association could not change its nature, as it
could not be stretched to include a business other than the one the
company was incorporated for---Tax references were answered
accordingly.

Commissioner Income Tax U.P. V. Basnat Rai Takhat Singh 1933

ITR P.C. 197; S.K. Sahana and Sons Ltd. and others v.
Commissioner of Income Tax 1997 ITR SC 236; Commissioner of
Income Tax Lucknow v. Vikram Cotton Mills Ltd. 1987 ITR SC
597; Commissioner of Income Tax Andhra Pradesh v. Cocinada
Radhaswami Bank Ltd. 1965 ITR SC 306; Andhra Pradesh State
Financial Corporation Limited v. Commissioner of Income Tax
A.P. Hyderabad 1984 ITR SC 532; Snam Progettls. P.A. v.
Additional Commissioner of Income Tax New Delhi-II and others
1981 ITR SC 70 and The Commissioner of Income Tax, West
Zone, Karachi and another v. Messrs Khairpur Textile Mills Ltd
and others 1989 SCMR 61 distinguished.

Commissioner of Income Tax, East Pakistan Dacca v. The

Liquidator, Khulna Bagerhat Railway Company Ltd:, Ahmadabad
PLD 1962 SC 128 fol.

Khalid Anwar for Appellant.

Eid Muhammad Khattak for Respondent.

Date of hearing: 16th November, 2005.

JUDGMENT

EJAZ AFZAL KHAN, J.---The following questions of law are

sought to be resolved through Tax Reference Nos. 117, 118 and
119 of 2003:

Peshawar High Court

 2533

(a) Whether on the facts and circumstances of the case, the

Honourable Tribunal was justified in concluding that
income received from investment of the surplus money of
the Applicant by constantly withdrawing/realizing
investments from one financial institution and re-investing
the realized amounts in more profitable investments, did
not amount to income from 'business' but to income from
other sources'?

(b) Whether, on the facts and circumstances of the case,

since no business other than 'the activity of investment of
the surplus money by constantly withdrawing/realizing
investments from one financial institution and re-investing
the realized amounts in more profitable investments' was
carried on by the Applicant during the assessment years,
1994-95, 1995-96 and 1996-97, the Hon'ble Tribunal
correctly held in law that 'the main business of the
respondent is to earn income from manufacture and sale of
cement'?

(c) Whether, on the facts and circumstances of the case, the

Hon'ble Tribunal correctly concluded that return of
'Portfolio Management', 'Fund Management' or 'Cash
Management' can be equated with 'income from interest'?

(d) Whether, on the facts and circumstances of the case,

there was any material before the learned Appellate
Tribunal to set aside the order of the learned Commissioner
of Income Tax (Appeals) and restore the order of the
Assessing Officer?

Peshawar High Court

 2534

(e) Whether, on the facts and circumstances of the case, the

Hon'ble Tribunal was correct in holding that the net
receipts from the portfolio and fund management ventures
undertaken by the 'Applicant amounted to interest income
under section 30 (income from other sources') and not
business income?

(f) Whether, on the facts and circumstances of the case, the

Hon'ble Tribunal was correct in holding that the activities
and ventures under review were not the `normal' or `main'
business of the Applicant (being the manufacture and sale
of cement) and could not therefore be the Applicant's
business within the meaning of the Income Tax Ordinance?

2. As common questions are involved in all the references, we

dispose them of through this single judgment.

3. The learned counsel appearing on behalf of the applicant argued

that though the applicant being a Public Ltd. Company is now
engaged in the business of manufacture and sale of cement, yet the
investment of its surplus money made and the income earned
therefrom shall be income from business to all intents and purposes
and cannot be termed as interest by any stretch of imagination and
that the learned appellate Tribunal by setting aside the order of
Commissioner of Income Tax, Wealth Tax Appeals (Zone) VI
Karachi camp at Peshawar acted against the statutory and declared
law of the land. The learned counsel to support his contention
placed reliance on the case of Commissioner Income Tax U.P. v.
Basnat Rai Takhat Singh (1933 ITR PC 197), S.K. Sahana and
Sons Ltd. and others v. Commissioner of Income Tax (1997 ITR

Peshawar High Court

 2535
SC 236); Commissioner of Income Tax Lucknow v. Vikram
Cotton Mills Ltd. (1987 ITR SC 597); Commissioner of Income
Tax Andhra Pradesh v. Cocanada Radhaswami Bank Ltd. (1965
ITR SC 306), Andhra Pradesh State Financial Corporation Limited
v. Commissioner of Income Tax A.P. Hyderabad (1984 ITR SC
532), Snam Progettls. P.A. v. Additional Commissioner of Income
Tax New Delhi-II and others (1981 ITR SC 70) and The
Commissioner of Income Tax, West Zone, Karachi and another v.
Messrs Khairpur Textile Mills Ltd and others (1989 SCMR 61).
The learned counsel by referring to clause VI of the Memorandum
of Association of the Company argued that where the Company
was authorized by a resolution to invest or otherwise deal with its
money in such a manner as may from time to time be determined,
any investment thus made and profit earned thereon cannot be
pushed within the mischief of section 30 of the Income Tax
Ordinance, 1979. While distinguishing the judgment rendered in
the case of Commissioner of Income Tax, East Pakistan Dacca v.
The Liquidator, Khulna Bagerhat Railway Company Ltd.,
Ahmadabad (PLD 1962 Supreme Court 128), which was heavily
relied upon by the Tribunal in its judgment, the learned counsel
submitted that passive investment in Banks for earning interest
cannot be brought at par with active business consisting in
constantly investing its money for earning returns, withdrawing it
from one Financial Institution and re-investing it in another for
more profitable returns. The learned counsel by referring to the
letter, dated May, 7, 1994 and various other available on the file
submitted that where relationship between the Company and the
Bank was that of a Principal and an agent and the latter was not
responsible for any loss caused on account of failure of repayment
of any investment unless the same is due to the negligence of the
Bank, the returns so earned shall be profit out and out and as such
will go outside the scope of interest. The learned counsel while
referring to the case of Messrs Mehran Associates Limited v. The
Commissioner of Income Tax Karachi (1993 PTD 69) submitted
that the fiscal provisions of a statute imposing any pecuniary
burden are to be construed liberally and that the charges upon the
subject are to be imposed when its language is clear and
unambiguous.

Peshawar High Court

 2536

4. As against that, the learned counsel appearing on behalf of the

Department argued that when the business of the applicant was
manufacture and sale of cement, any investment made by it in any
Bank or Financial Institution and interest earned thereon shall be
essentially interest, therefore, it was rightly charged as such. The
learned counsel to support his contention placed reliance on the
case of Commissioner of Income Tax, East Pakistan Dacca v. The
Liquidator, Khulna Bagerhat Railway Company Ltd., Ahmadabad
(PLD 1962 Supreme Court 128).

5. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

6. Before we deal with the controversy canvassed at the bar before

us, it is worthwhile to see what does the expression `business' and
`interest' mean. The former according to section 2(11) of the
Ordinance includes any trade, commerce or manufacture or any
adventure or concern in the nature of trade, commerce or
manufacture, while the latter, according to section 2(29) of the
Ordinance means interest payable in any manner in respect of any
money borrowed or debt incurred (including a deposit, claim or
other similar right or obligation) and includes any service fee or
other charges in respect of money borrowed or debt incurred in
respect of any credit facility which has not been utilized. Heads of
income as classified in section 15 of the Ordinance are:--

(a) Salary;

Peshawar High Court

 2537
(b) Interest on securities;

(c) Income from house property;

(d) Income from business or profession;

(e) Capital gains; and

(f) Income from other sources.

7. Income from business or profession according to section 22 of

the Ordinance chargeable under the heads of income from business
or profession is detailed as under:--

(a) profits and gains of any business or profession carried

on, or deemed to be carried on, by the assessee at any time
during the income year;

(b) income derived by any trade, profession and similar

association from specific services performed for its
members; and

Peshawar High Court

 2538
(c) value of any benefit or perquisite, whether convertible
into money or not, arising from business or exercise of a
profession.

8. Other sources .have been dealt with by section 30 of the

Ordinance which read as under:--

30. Income from other sources.---(1) Income from every

kind which may be included in the total income of an
assessee under this Ordinance shall be chargeable under the
head 'Income from other sources', if it is not included in his
total income under any other head.

(2) In particular, and without prejudice to the generality of

the provisions of subsection (1), the following income
shall, save as otherwise' provided in this Ordinance, be
chargeable under head 'Income from other sources'
namely:--

(a) dividend;

(b) interest, royalties and fees for technical services;

(c) ground rent;

Peshawar High Court

 2539
(d) income from the hire of machinery, plant or furniture
belonging to the assessee and also of buildings belonging to
him if the letting of the buildings is inseparable from the
letting of the said machinery, plant or furniture; and

(d) any income to which subsection (12) of section 12 or

section 13 applies."

9. After going through the relevant provisions quoted above, we

are now to see whether the income received by the applicant from
investment of the surplus money is income from business or
interest or something other than that. Though the controversy has
been reflected in 5 questions but the formulations projected by
them are identical in their essence and substance.

10. It is evident from the record that the Company has been
incorporated for setting up a cement plant at Pezu for manufacture
and sale of cement. It, as such, raised a great deal of funds before it
embarked on the aforesaid enterprise. Since the funds were
surplus, it, instead of keeping them idle and unutilized, consistently
invested them in various financial institutions, earned returns
thereon withdrew them and then reinvested them in the others for
better returns. Now the question crops up whether these returns can
be termed as income from business? Our answer to the question is
a simple no. The reason is not too far to seek as the sole concern
and business of the Company is to set up a Cement Plant for the
manufacture and sale of cement and not to earn returns by
investing its funds in one financial institution or the others for
better returns. It shall thus be income from other sources to all
intents and purposes. The moreso when, it does not fit in with the
definition of business as highlighted above. Reference to Clause VI
of the Memorandum of Association cannot change its nature, as it

Peshawar High Court

 2540
cannot be stretched to include a business other than the one the
Company was incorporated for. In the case of Commissioner of
Income Tax, East Pakistan Dacca v. The Liquidator, Khulna
Bagerhat Railway Company Ltd., Ahmadabad (Supra), the Hon'ble
Supreme Court while dealing with a similar controversy held as
under:--

"We have considered the various Articles by which this

Company was governed. We have no hesitation in agreeing
with the view of the High Court that the normal business of
the Company was the construction and the running of the
Railway and not investment of its moneys on interest.
Other powers were also given to the Company by the
Articles of Association, but it is not contended that all those
powers pertained to the earning of normal business income.
If the Company, instead of retaining its surplus moneys in
idle condition, invested them under the powers given to
them by their Articles of Association, it would not follow
that the income so derived would be part of the Company's
normal business income. Each case must be decided on its
own facts and, in the instant case, the circumstances
brought out in the evidence do not indicate that receiving of
interest on invested moneys was really included in the
business income of the Company."

11. The argument that the relationship between the investor and the
Bank was that of a principal and an agent with no responsibility of
the latter in the wake of loss even if accepted to be correct may
change the nature of interest into one of dividend, yet it will not
take its case out-side the ambit of section 30 of the Ordinance,
which also includes dividend as income from other sources.

Peshawar High Court

 2541
12. When considered in the light of the foregoing discussion, we
are not inclined to take a different view from that of the Tribunal.
The case of Commissioner of Income Tax, West Zone, Karachi
and another v. Messrs Khairpur Textile Mills Ltd. and others
(Supra) because of its distinguishable facts and circumstances is
not applicable to the case in hand. The other cases cited at the bar
by the learned counsel for the applicant besides being
distinguishable have no relevance to the case in hand, quite apart
from the fact, that they being of persuasive nature would not have
any binding force particularly when the case of Commissioner of
Income Tax East Pakistan Dacca v. The Liquidator, Khulna
Bagerhat Railway Company Ltd. Ahmadabad (Supra) covers the
case in hand on all fours.

For what has been discussed above, all these tax references are
answered accordingly.

M.H./5/P
Order accordingly.

Peshawar High Court

 2542

2007 P T D 749

[Peshawar High Court]

Before Ejaz Afzal Khan and Dost Muhammad Khan, JJ

Messrs SYNTRONICS LIMITED, INDUSTRIAL ESTATE,

HATTAR

Versus

ADDITIONAL COLLECTOR (ADJ) CUSTOMS, CE &

SALES TAX PESHAWAR

S.A.O. No.7 of 2002, decided on 30th November, 2006.

Sales Tax Act (VII of 1990)---

----Ss. 7, 8 & 47---Input tax adjustment on wires and cables---

Claim for---"Stock in trade", meaning of---Appeal to High Court---
Assessee had contended that when the words "stock in trade"
would mean goods kept available for sale at a store or shop
including tools, materials etc., used in carrying on a trade or a
business or any resources, practices or devices characteristically
employed by a given person or group, cables and wires used to
facilitate the electric supply to the machinery operated by the
electric power, would be "stock in trade" to all intents and
purposes and that Appellate Tribunal by not appreciating that
important aspect of the case failed to appreciate the law---Validity-
--Wires and cables could not be used in the manufacture or
production of taxable supplies as assessee being supplier of woven
fibres staple bags, had nothing to do with any of them---Case of
assessee was not that any of said items was used in the

Peshawar High Court

 2543
manufacture or production of taxable supplies rather case of
assessee was that said goods being covered by words "stock in
trade" would entitle it to reclaim or deduct input tax, but `words
used otherwise than as stock in trade' in S.7, Sales Tax Act, 1990
when read in the light of S.8 of said Act, had left no doubt that
those items would mean `used in the manufacture and production
of taxable supplies'---Wires and cables, by no stretch of
imagination, could be brought within the mischief of the words
"stock in trade", when those could not be said to have been
employed characteristically by the assessee---No input tax
adjustment could be claimed on wires and cables---Impugned order
being based on proper appreciation of law, was unassailable---
Appeal being without merit, was dismissed.

Isacc Ali Qazi for Appellant.

Behlol Khattak for Respondent.

Date of hearing: 30th November, 2006.

JUDGMENT

EJAZ AFZAL KHAN J.---Messrs Syntronics Limited, appellant

herein, has assailed the judgment, dated 29-6-2002 of the learned
Customs Excise and Sales Tax Appellate Tribunal, Peshawar, on
the following question of law:

"Whether under the facts and circumstances of the case, the

honourable Tribunal has misinterpreted S.R.O.
No.578(I)/98 more specifically its Entry No.7 for not
allowing input adjustment against tax paid vide Invoices
No. 1513 dated 23-10-1999, No. 1514 dated 23-10-1999,
No. 1209, dated 1-8-199 and No. 2608, dated 18-12-1999

Peshawar High Court

 2544
(Annexures V to VIII) on purchase of wires and cables
used within and in conjunction with plant and machinery."

2. The learned counsel by referring to the Webster's New Words

College Dictionary 3rd Edition, contended that when the words
"stock in trade" means goods kept available for sale, at a store or
shop including tools, materials etc. used in carrying on a trade or a
business or any resources, practices or devices characteristically
employed by a given person or group, cables and wires used to
facilitate the electric supply to the machinery operated by the
electric power, would be "stock in trade" to all intents and
purposes and that the learned Appellate Tribunal by failing to
appreciate this important aspect of the case failed to appreciate the
law. The learned counsel next contended that when in the case of
Messrs Chashma Sugar Mills v. Collector of Customs Sales Tax
and Central Excise (Appeals), Peshawar and 2 others, rendered in
Appeal No. ST 17/PB/2004 decided on 30-9-2006, the learned
Customs Central Excise and Sales Tax Appellate Tribunal, allowed
input tax adjustment on wires and cables, the appellant couldn't be
treated differently.

3. As against that, the learned counsel appearing on behalf of the

respondents, submitted that where cables and wires are not used
for the manufacture or production of taxable supplies, no input tax
adjustment can be allowed thereon and that the view of the learned
Appellate Tribunal being based on proper appreciation of law, is
not open to any exception.

4. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

Peshawar High Court

 2545
5. Before we discuss the arguments addressed by the learned
counsel for the appellant and answer the question urged in this
appeal, we would like to refer to sections 7, 8 or the Sales Tax Act
and the S.R.O. thereunder which read as under;--

"(7) Determination of tax liability.---(1) For the purpose of

determining his tax liability in respect of taxable supplies
made during a tax period, a registered person shall be
entitled to deduct input tax paid during the tax period for
the purpose of taxable supplies made, or to be made, by
him from the output tax that is due from him in respect of
that tax period and to make such other adjustments as are
specified in section 9.

(2) A registered person shall not be entitled to deduct input

tax from output tax unless:---

(i) in case of a claim for input tax in respect of a taxable

supply made in Pakistan, he holds a tax invoice in respect
of such supply for which a return is furnished;

(ii) in case of goods imported into Pakistan, he holds the

bill of entry duly cleared by the customs under section 79
or section 104 of the Customs Act, 1969.

(iii) -----------------

Peshawar High Court

 2546
(iv) -----------------

"(8) Tax credit not allowed.---(1) Notwithstanding anything

contained in this Act, a registered person shall not be
entitled to reclaim or deduct input tax paid on---

(a) the goods used or to be used for any purpose other than
for the manufacture or production or taxable goods or for
taxable supplies made or to be made by him;

(b) any other goods which the Federal Government may, by

a notification in the official Gazette, specify and

(c) on the goods under subsections (IA) and (5) of section

3.

(2) If a registered person deals in taxable and non-taxable

supplies, he can reclaim only such proportion of the input
tax as is attributable to taxable supplies in such manner as
may be specified by the Board.

(3) No person other than a registered person shall make any

deduction or reclaim input tax in respect of taxable supplies
made or to be made by him.

Peshawar High Court

 2547
(4) No person engaged in taxable activity specified in
section 3A shall make any deduction or reclaim input tax,
nor shall this tax be creditable as input tax for the taxable
activity of any other registered person.

(5) Notwithstanding anything contained in any other law

for the time being in force or any decision or any Court, for
the purposes of this section, no input tax credit shall be
allowed to the persons who paid fixed tax under any
provisions of this Act as it existed at any time prior to the
first day of December, 1998.

(6) Notwithstanding anything contained in any other law

for the time being in force or any provision of this Act, the
Federal Government may, by notification in the official
Gazette, specify any goods or class of goods which a
registered or enrolled person cannot supply to any person
who is not registered or enrolled under this Act.

(7) Notwithstanding anything contained in any of the

provisions of this Act, the Federal Government, by
notification in the official Gazette, specify any goods or
class of' goods in respect of which the provisions of section
3A shall not apply."

"SPECIFICATION OF GOODS ON WHICH INPUT TAX

CANNOT BE CLAIMED.

Peshawar High Court

 2548
Notification No.S.R.O. 578(I)/98, dated 12th June, 1998.-In
exercise of the powers conferred by clause (b) of subsection (1) of
section 8 of the Sales Tax Act, 1990 and in supersession of
Ministry of Finance and Economic Affairs Notification No.S.R.O.
1307(I)/97, dated the 20th December, 1997, the Federal
Government is pleased to specify that the following goods
acquired otherwise than as stock in trade by a registered person to
be the goods in respect of which input tax shall not be claimed
namely:--

(1) Vehicles falling in Chapter 87 of the First Schedule to

the Customs Act, 1969 (IV of 1969).

(2) Building materials.

(3) Office equipment (excluding electronic cash registers)

furniture, fixture and furnishings.

(4) Electrical and gas appliances.

(5) Telecommunication equipments.

(6) Generators and generating sets.

Peshawar High Court

 2549
(7) Wires and cables and ordinary electrical fittings.

(8) Crockery, cutlery and utensils, etcetera.

(9) Supply of foods, beverages, garments, fabrics, etcetera

and consumption on entertainments.

(10) Gifts and give-aways.

(2) This Notification shall take effect from the 1st day of
July, 1998.

6. A perusal of sections 7 and 8 of the Act would reveal that the

former deals with the rule of adjustment of input tax while the
latter deals with its exceptions. The latter also highlights the power
of the Federal Government to specify the goods by a notification in
the official Gazette on which the said person shall not be entitled to
reclaim or deduct input tax. The question whether the wires and
cables could be used in the manufacture or production of taxable
supplies can be answered in a simple no, when the appellant being
supplier of woven fiber staple bags have nothing to do with any of
them. Nor it is the case of the appellant that any of them is used in
the manufacture or production of taxable supplies. Its case, as
canvassed at the bar, is that these goods being covered by the
words "stock in trade" would entitle it to reclaim or deduct input
tax. But the "words used otherwise than as stock in trade" when
read in the light of section 8 or the Act, leave no doubt in our mind
that they mean the goods used in the manufacture and production

Peshawar High Court

 2550
of taxable supplies. These words cannot be read in isolation, out of
context and independently of the provisions of the parent
statute. Nor can they be strained and stretched to an unworkable
extreme to include what the legislature has excluded in express
and unequivocal terms. In case we interpret these words in the
way, the learned counsel for the appellant wants us to do, it
would defeat the very purpose, the S.R.O. was issued for. Not
only that it would also run counter to the parent statute. The
Courts of law would never lean in favour of an interpretation of
a S.R.O. or any other piece of delegated legislation, which runs
counter to the parent statute. In such eventuality, they are
required to reconcile them, if possible. If not, it is the parent
statute and not the S.R.O. that would prevail. Wires and cables,
by no stretch of imagination, can be brought within the mischief
of the words "stock in trade", when they cannot be said to have
been employed characteristically by the appellant, even if, we
see them in the light of the meaning given in the Webster's New
Words Dictionary. We, therefore, have no hesitation to hold that
no input tax adjustment can be claimed on wires and cables. The
impugned finding being based on proper appreciation of law is
unassailable.

7. The argument that when in the case of Messrs Chashma Sugar

Mills v. Collector of Customs Sales Tax and Central Excise
(Appeals), Peshawar and 2 others, rendered in Appeal No.ST
17/PB/2004 decided on 30-9-2006, the learned appellate
Tribunal, has allowed input tax adjustment on wires and cables,
the appellant cannot be treated differently, has not impressed us
to the least, firstly because it being against the provisions
contained in section 8 of the Sales Tax Act and the S.R.O.
thereunder has no force altogether and secondly because one or
any number of wrong decision cannot justify another wrong
decision.

8. For the reasons discussed above, this appeal being without

merit is dismissed and the question raised therein is answered
accordingly.

Peshawar High Court

 2551

H.B.T./23/P
Appeal dismissed.

Peshawar High Court

 2552

2007 P T D 789

[Peshawar High Court]

Before Shah Jehan Khan and Ejaz Afzal Khan, JJ

Messrs IMTIAZ AHMED

Versus

COLLECTOR CUSTOMS, PESHAWAR

S.A.O. No. 157 of 2004, decided on 30th November, 2006.

Customs Act (IV of 1969)---

----Ss. 2(s), 9, 10, 15, 181 & 196---S.R.O. 374(I)/2002, dated 15-
6-2002---Confiscation of seized goods---Option to pay redemption
fine in lieu of confiscation of goods---Appeal to High Court---
Appellant claimed that his confiscated goods could be released on
payment, of redemption fine as Adjudicating Authority, in exercise
of its discretionary powers had released goods on payment of
redemption fine in many other similar cases and that case of
appellant could not have been treated with a different yardstick---
Validity---No option was given under Notification No.S.R.O.
No.374(I)/2002 dated 15-6-2002 to pay fine in lieu of confiscation
or smuggled goods falling under clause (s) of S.2 of Customs Act,
1969 or goods imported in violation of S.15 of Customs Act, 1969-
--Goods seized did not fall within the purview of S.2(s)(i)(ii) of
Customs Act, 1969, but fell within the ambit of S.2(s)(iii) of the
Act as no evidence whatever was available to prove that goods
were brought through the route declared under Ss.9 & 10 of
Customs Act, 1969---Mere fact that goods subsequently found and
seized from one of the trucks would not prove that goods were
brought through declared route---Had goods been so, those would

Peshawar High Court

 2553
have tallied with the Bill of Entry, but they did not tally---Said
goods would be deemed to have been smuggled from a route
other than the one declared under Ss.9 & 10 of Customs Act,
1969--- Question of release of goods of appellant in exercise of
discretionary powers on payment of redemption fine in terms of
S.181 of Customs Act, 1969, would not arise, as such powers in
view of S.R.O. 374(I)/2002, dated 15-6-2002 had been taken
away---Finding given by Appellate Tribunal being in conformity
with the law, was not open to any interference by High Court in
appeal.

Chairman, Regional Transport Authority, Rawalpindi v.

Pakistan Mutual Insurance Company Limited, Rawalpindi PLD
1991 SC 14; Messrs Kaghan Impex and another v. Central
Board of Revenue and another PLD 1982 Lah. 608; Messrs
Bijhama Traders v. The Collector of Customs (Appraisement)
and others 1989 MLD 4592 and Abu Bakar Siddique and others
v. Collector of Customs, Lahore and others 2006 SCMR 705 rel.

Isacc Ali Qazi for Appellant.

Moeen ud din Hamayun for Respondent.

Date of hearing: 30th November, 2006.

JUDGMENT

EJAZ AFZAL KHAN, J.---Imtiaz Ahmad and Muhammad

Amjad, appellants herein, have filed this appeal under section
196 of the Customs Act, 1969, against a judgment, dated 8-11-
2003 of the learned Customs, Excise and Sales Tax Appellate
Tribunal, Peshawar, whereby their appeal was dismissed and
order-in-original ,dated 17-5-2003 of the learned Additional
Collector (Adjudication) was upheld. The appellants in their
appeal have raised the following questions of law:--

Peshawar High Court

 2554

(1) Under the facts and circumstances of the case,

whereas, show-cause notice issued for violation of clause
90 of the Customs Act, 1969 for the excess goods which
are non-notified items and entered in the country through
authorized routes and cleared with duty paid goods
whether such excess goods come within the purview of
section 2 (s) of the Customs Act, 1969, and, the
honourable Tribunal justified restraining itself for
exercise of its discretion under section 181 of the
Customs Act, 1969 because of S.R.O. 374(I)/2002 for
releasing the seized goods on redemption fine.

(2) Whether under the facts and circumstances, the

impugned order of passing or maintaining outright
confiscation of seized goods is not against the principle of
consistency where as in numerous cases of excess goods,
for being non-notified, are being released on option of
redemption fine by the honourable Tribunal and
adjudication authorities because of the "loose customs
administration" at Sust Customs Station."

2. The learned counsel appearing on behalf of the appellant

contended that where it has been mentioned in the show-cause
notice that the imported goods were seized from the trucks
cleared from the Customs Station Sust, they could not be pushed
into the mischief of section 2(s) of the Customs Act, so as to
attract the application of notification S.R.O. No.374(I)/2002,
dated 15-6-2002. The learned counsel next submitted that it
being a case of clause (b) of the S.R.O. would call for release of
the goods in lieu of confiscation on payment of redemption fine
in accordance with the table given thereunder. He next
submitted that where the Adjudication. Authority in the exercise

Peshawar High Court

 2555
of its discretionary powers has released goods on payment of
redemption fine in many other similar cases, the case of the
appellants could not have been treated with a different yardstick.
Exercise of discretion, the learned counsel concluded, being
clearly distinguishable from the arbitrary exercise of powers has
to be exercised judicially and in accordance with the recognized
guidelines laid down by the superior Courts of the country from
time to time. The learned counsel to support his contention
placed reliance on the cases of Chairman, Regional Transport
Authority, Rawalpindi v. Pakistan Mutual Insurance Company
Limited, Rawalpindi (PLD 1991 Supreme Court 14), Messrs
Kaghan Impex and another v. Central Board of Revenue and
another (PLD 1982 Lahore 608), Messrs Bijhama Traders v. The
Collector of Customs (Appraisement) and others (1989 MLD
4592) and Abu Bakar Siddique and others v. Collector of
Customs, Lahore and others (2006 SCMR 705).

3. As against that, the learned counsel appearing on behalf of

the respondents contended that when the goods seized from one
of the trucks did not tally with the bill of entry, the only
conclusion to be drawn in the circumstances would be that they
were smuggled in terms of section 2(s) of the Customs Act,
therefore, they were rightly confiscated and that the questions
urged by the appellants being one of fact cannot be gone into by
this Court in an appeal filed under section 196 of the Act. He
next submitted that if at all some goods have been released by
some authority or Court in similar cases on account of some
error or misunderstanding of law that will not furnish a
justification for its repetition and that the impugned finding
being free from any error muchless legal is not open to any
interference.

4. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties.

Peshawar High Court

 2556

5. Before we discuss the merits of the case, it is worthwhile to refer

to S.R.O. No.374(I)/2002, dated 15-6-2002, which runs as under:--

NO OPTION IN LIEU OF CONFISCATION IN RESPECT

OF SMUGGLED, PROHIBITED, BANNED ITEMS AND
QUANTUM OF FINE IN CASE OF MISDECLARATION
AND ON OTHER OFFENCES.

15. Notification No. S.R.O. 374(I)/2002, dated 15th June,

2002.---In exercise of the powers conferred by section 181
of the Customs Act, 1969 (IV of 1969, and in supersession
of the order, dated the 17th December, 1998, the Central
Board of Revenue is pleased to order that.---

(a) no option shall be given to pay fine in lieu of

confiscating in respect of smuggled goods falling under
clause (s) of section 2 of the Customs Act, 1969 (IV of
1969), or goods imported in violation of section 15 of the
Customs Act, 1969 (IV of 1969), or banned items notified
vide Appendix-A of the Import Trade and Procedures
Order, 2000, including job lot and stock lot items where the
customs duty is zero per cent or vehicles imported in
violation of Import Trade and Procedure Order, 2000.

(b) the quantum of fine in lieu of confiscation shall not be

less than the rate specified in column (3) of the Table
below:--

Peshawar High Court

 2557

S. No. Description Minimum redemption

fine on customs value
(1) (2) (3)
(a) Offences related to
misdeclaration,--
(i) difference between ascertained 30%
and
declared weight or quantity subject
to the condition that the percentage
difference is more than 5%
(i) Origin 30%
(iii) Physical description 30%
Other Offences,
(i) Offending goods imported in 25%
the
Bales of second hand clothing
imported in violation of provisions
of Imports and Exports (Control)
Act, 1950 (XXXIX of 1950)

(ii) Stock-lot or job lot goods where 15%

the duty is not zero per cent imported
in violation of provisions of Imports
and Exports (Control) Act,
1950). (iii) Goods not covered
under clause
Nil
(b) of rule 4 of sub-Chapter 1 of
Chapter II of the Customs Rules,
2001 brought by incoming passengers
(accompanied or unaccompanied) in
non-commercial quantities for actual
use and not intended for sale in
market.
Peshawar High Court
 2558
(iv) Old and used machinery parts or 25%
components imported by the
industrial importers for their plants, if
not importable in terms of relevant
Import Trade Procedure.
(v) Old and used spare parts and 25%
accessories, if imported along with
the second hand plant and machinery
used in manufacturing of goods.
(vi) Imported scrap items which Nil
contain old and used or serviceable
components such as auto parts and
compressors etc., if the same are
allowed release after cutting,
pressing, piercing, breaking or
otherwise of deshaping to the
satisfaction of the Customs
Authorities on specific request of the
importers subject to the condition that
expense incurred on such processes
are paid by the importer.

A perusal of the S.R.O. would reveal that no option could be given

to an owner of the goods, to pay redemption fine in lieu of
confiscation under section 181 of the Customs Act, it' they were
found to have been smuggled in terms of section 2(s) of the
Customs Act. Now question arises whether the goods seized can be
covered by section 2(s) of the Act so as to attract the application of
the S.R.O. mentioned above. We have not doubt in our mind that
the goods seized do not fall within the purview of section 2(s)(i)
and (ii). But they certainly fall within the ambit of 2(s)(iii), as there
is no evidence whatever to prove that they were brought through
the route declared under sections 9 and 10 or the Customs Act. The
mere fact that the goods subsequently found and seized from one

Peshawar High Court

 2559
of the trucks would not prove that they were brought through the
declared route. Had they been, they would have tallied with the bill
of entry. When they did not, they shall be deemed to have been
smuggled from a route other than the one declared under sections 9
and 10 of the Customs Act. Question of their release in the
exercise of the discretionary powers on payment of redemption
fine in terms of section 181 of the Customs Act would not arise,
when such powers in view or the S.R.O. mentioned above, have
been taken away in respect of the goods falling within the ambit of
section 2(s). No authority after the issuance of the said S.R.O. has
been left with any powers to release such goods on payment of
redemption fine. If, in spite of the said S.R.O., any authority or a
Court of law has exercised such powers, it being wrong altogether
would not furnish a justification for its repetition. For only that
decision or precedent shall have binding force which is consistent
with the relevant statute. The one which is against that statute or is
rendered in ignorance thereof because of being per incuriam, will
have no binding force, even if, given by a superior Court of the
country. Let alone the one given by an authority or a Court at the
lower stratum. In the case of Burhanuddin v. Chairman ADBP
rendered in Writ Petition No.340 of 2006 decided on 5-10-2006,
this Court while dealing with an almost identical argument held as
under:-

"Granted that equality before law is the supreme ideal for

the Courts of law but it does not mean that a benefit which
should not have been extended to any, if extended to one,
would furnish a Justification for its extension to another.
For commission of one wrong or two or any number
thereof cannot furnish a justification for yet another.
Similarly two, wrong precedents would not legalize an act
which is void from the very inception.

Peshawar High Court

 2560
The judgments rendered in the cases of Chairman, Regional
Transport Authority, Rawalpindi v. Pakistan Mutual Insurance
Company Limited, Rawalpindi, Messrs Kaghan Impex and another
v. Central Board of Revenue and another, and Messrs Bijhama
Traders v. The Collector of Customs (Appraisement) and others
(Supra) will have relevance only when an authority has
discretionary powers but has refused to exercise them or has not
exercised them judicially and in accordance with the guidelines
vouchsafed by the superior Courts of the country. But where the
discretionary powers of the authority in view of the S.R.O.
mentioned above issued under section 181 of the Customs Act,
have been taken away, question of their exercise will not arise. The
case of Abu Bakar Siddique and others v. Collector of Customs,
Lahore and others (Supra) too will not support the case of the
appellants, as it relates to a period when the discretionary powers
given under section 181 of the Customs Act were not yet taken
away by virtue of the S.R.O. mentioned above.

8. When considered in this background, the finding given by the

learned Appellate Tribunal being in conformity with the law is not
open to any interference.

9. For the reasons discussed above, this appeal being without

substance is dismissed and the questions thus raised are answered
accordingly.

H.B.T./24/P
Appeal dismissed.

Peshawar High Court

 2561

2009 P T D 1799

[Peshawar High Court]

Before Ejaz Afzal Khan and Dost Muhammad Khan, JJ

ADDITIONAL COLLECTOR SALES TAX

Versus

Messrs ASSOCIATED INDUSTRIES LTD.

Sales Tax Reference No.55 of 2007, decided on 2nd June, 2009.

(a) Customs Rules, 2001---

----Rr. 302-A & 307-B---S.R.O.450(I)/2001, dated 18-6-2001---

C.B.R. Letter No.3(15)STP Val.I, dated 11-7-2002---Refund or
input adjustment of Sales Tax paid on packing material and
chemical used in DTRE Scheme---Scope---Held, refund or input
adjustment of Sales Tax paid on packing material and chemical
used in DTRE Scheme, cannot be refused---DTRE approved
person can claim refund or input adjustment under R.302-A and
not under R.307-B of Customs Rules, 2001---Principles.

Central Board of Revenue Islamabad v. Sheikh Spinning Mills Ltd.

Lahore and others 1999 SCMR 44 ref.

Peshawar High Court

 2562
(b) Customs Act (IV of 1969)---

---Ss. 196, 194-A, 179, 193 & 195---Appeal---Assistant Collector

when can be considered to be an "aggrieved person" with the
approval of Collector or Additional Collector to file an appeal---
Principles.

Answer to the question whether with the approval of Collector or

Additional Collector, an Assistant Collector can be considered as
an aggrieved person and can file appeal on behalf of them, would
be in the affirmative. If this question refers to an appeal before the
Appellate Tribunal, because under section 194A of the Customs
Act, 1969 an officer of Customs, aggrieved by an order passed by
an Officer of Customs as an Adjudicating authority under section
179 of the Act, can file appeal before the Appellate Tribunal.
Similarly an Officer of Customs aggrieved by an order passed by
the Collector (Appeals) under section 193 or an order passed by
the Board or Collector under section 195 of the Act, can file an
appeal before the Appellate Tribunal, if authorized by the Board in
the official Gazette. But if the question relates, to filing of an
appeal in High Court under section 196 of the Customs Act, the
answer would be in the negative. So long as an appeal is not filed
and verified by Collector, it cannot be held to be competent.

Shahid Qayum Khattak for Petitioner.

Isacc Ali Qazi for Respondent.

Peshawar High Court

 2563
Date of hearing: 2nd June, 2009.

JUDGMENT

EJAZ AFZAL KHAN, J.---Collector Regional Tax Office has

filed this reference to seek answers to the following questions:--

(a) Whether a DTRE approved person can claim refund or

input tax adjustment of sales tax paid on packing material
and chemical used in DTRE Scheme?

(b) Whether Rule-307-B of newly DTRE Rules, 2005

issued vide Notification S.R.O. 563(I)/2005 dated 16-6-
2005 will be applicable to the refund claim of the
respondent (for the period December, 2003), or Rule 302-A
of the Customs Rules, 2001 (DTRE Rules 2001) issued
vide notification S.R.O. 450(I)/2001 dated 18-6-2001?

(c) Whether with the approval of Collector or Additional

Collector, an Assistant Collector can be considered an
aggrieved person and can file an appeal on behalf of them
or not?

Peshawar High Court

 2564
2. Learned counsel appearing on behalf of the petitioner contended
that DTRE user cannot claim refund or input tax adjustment of
sales tax paid on packing material and chemical used in DTRE
Scheme except Electricity and Gas to the extent of their
proportionate consumption in the production of exported goods.
The learned counsel next contended that when the case of the
respondent relating to the period of December, 2003 was covered
by Rule 302-A of the Customs Rules of 2001 (DTRE Rules, 2001)
issued vide notification S.R.O. No.450(I)/2001 dated 18-6-2001,
Rule 307-B of newly DTRE Rules, 2005 issued vide notification
S.R.O. 5631(I)/2005 dated 16-6-2005 would not be applicable,
therefore they cannot claim refund or input adjustment of sales tax
paid on packing material and chemical used in DTRE Scheme. The
learned counsel next contended that the appeal before the learned
appellate Tribunal could not be held to be incompetent by referring
to the judgment rendered in the case of Director, Directorate-
General of Intelligence and Investigation and others v. Messrs Al-
Faiz Industries ' (Pvt.) Limited and others (2006 SCMR 129), as it
being related to section 196 of the Customs Act deals with the
filing of appeal before the High Court only. The learned counsel by
concluding his arguments submitted that where the impugned
judgment has been based on misunderstanding of law, it is liable to
be set aside.

3. As against that, the learned counsel appearing on behalf of the

respondent contended that the case of the respondent being related
to the period of 2003 is clearly and squarely covered by Rule 302-
A of the Customs Rules, 2001 (DTRE Rules, 2001) issued vide
notification S.R.O. 450(I) of 2001 dated 18-6-2001 but these Rules
being in conflict with the parent. Statute cannot override the latter.
The learned counsel next contended that the strength of the
aforesaid Rules cannot be over emphasized when it stands diluted
by the C.B.R., vide its letter No.3(15) STP/99 Val-I dated 11-7-
2002. The learned counsel by referring to the case of Central Board
of Revenue Islamabad v. Sheikh Spinning Mills Ltd. Lahore and
others (1999 SCMR 44) contended that neither Board of Revenue

Peshawar High Court

 2565
nor even the Federal Government can control or curtail judicial
adjudication powers vested in the forums provided under the
relevant law by giving a particular interpretation to a particular
provision thereof or by issuing a notification S.R.O. for the
purpose.

4. We have gone through the record carefully and considered the

submissions of the learned counsel for the parties'.

5. A perusal of the Rule 307-B promulgated vide notification

S.R.O. No.563/1/2005 dated 16-6-2005 would reveal that it has
nothing to do with the case of the respondent, which is relating to
the period of December 2003. Its reference in the judgment of the
Collector is thus uncalled for. The case of the respondent would
clearly and squarely fall within the ambit of Rules 302-A of the
Customs Rules, 2001 (DTRE Rules, 2001) promulgated vide
notification S.R.O. No.450/1/2001 dated 18-6-2001. Now the
question crops up whether it prohibits the refund or input
adjustment of sales tax paid on packing material and chemical used
in DTRE Scheme. Before we answer the question, it is worthwhile
to reproduce the relevant rule, which reads as under.:--

"302A. Refund or adjustment of sales tax. Refund or input

adjustment of sales tax paid on electricity and gas shall be
allowed to the DTRE approved exporter to the extent of
proportionate consumption thereof in the production of
exported goods.

6. A look at the above quoted rule would reveal that it deals with
the refund or input adjustment of sales tax paid on electricity and

Peshawar High Court

 2566
gas. Since it is not prefaced by a non obstante clause, it cannot be
taken to override any of the provisions of sales tax or any other
relevant law providing for refund or input adjustment. Refund or
input adjustment of sales tax paid or packing material and chemical
used in DTRE Scheme cannot, thus, be refused by referring to
above quoted rule. Therefore, we have no hesitation to hold that a
DTRE approved person can claim refund or input adjustment of
sales tax paid on the said material. Once we hold that a DTRE
approved person can claim the refund or input adjustment under
the above quoted rule, reference to rule 307B of DTRE Rules,
2005 being irrelevant and outside the scope of this case would
become redundant and even superfluous. Reference to the case of
Central Board of Revenue Islamabad v. Sheikh Spinning Mills Ltd.
Lahore and others (supra) and letter No .3 (15) STP/99 Val-1 dated
11-7-2002 would also be hardly necessary.

7. Now the question arises whether with the approval of Collector

or Additional Collector, an Assistant Collector can be considered
as an aggrieved person and can file appeal on behalf of them? If
this question refers to an appeal before the appellate Tribunal, the
answer to the question would be in the affirmative because under
section 194A of the Customs Act, 1969, and officer of Customs,
aggrieved by an order passed by an officer of Customs as an
Adjudicating Authority under section 179 of the Act, can file
appeal before the appellate Tribunal. Similarly an officer of
Customs aggrieved by an order passed by the Collector (Appeals)
under section 193 or an order passed by the Board or Collector
under section 195 of the Act, can file an appeal before the
appellate Tribunal,-if authorized by the Board in the official
Gazette. But if the question relates to filing of an appeal in this
Court under section 196 of the Customs Act, the answer would be
in the negative. It is by now settled that so long as an appeal is not
filed and verified by Collector, it cannot be held to be competent.
The case of Director, Directorate-General, of Intelligence and
Investigation and others v. Messrs Al-Faiz Industries (Pvt.) Ltd
and others (supra), may well be referred in this behalf.

Peshawar High Court

 2567

8. With the answers given above, this reference stands disposed of.

M.B.A./145/P
Reference answered.

Peshawar High Court

 2568

PL J 2002 Peshawar 111 (PB)

Present ejaz afzal khan (second judge's name is not

decipherable JJ.

M/s. KURRAM ENTERPRISES-Appellant

versus

SPECIAL OFFICER INCOME TAX/WEALTH TAX-

Respondent

I.T. Appeal No. I. of 1998, decided on 23.1.2002

Income Tax Ordinance, 1979 (XXXI of 979)—

—S. 136-Remand of case to Assessing Officer with direction to

take fresh action on merits-Legality-Statement of account filed
with return did not show closing stock of offices of appellant at "B"
and "P" on asset, side of balance sheet which was mainly the reason
for re-opening of assessment- At the time of completion of
assessment availability and conscious consideration of material,
forming basis for re-opening of case, were not born out from
record—No illegality or jurisdictional error in order of remand by
Income Tax Appellate Tribunal was pointed out so as to justify
interference in appeal-Appeal dismissed. ' [P. 113] A

Peshawar High Court

 2569

1990 PTD 155; 1993 SCMR 1232 ref.

Haji Saleem Jan Knan Advocate for Appellant

Mr. Bid Muhammad Khan Advocate for Respondent

Date of hearing 6-12-2001.

JUDGMENT
Ejaz Afzal Khan, J.--These Appeals Nos. 1 and 2 of
1998 are directed against the order dated 2-6-1998 in I.T. As. No.
50 and 51 (FB) of 1997-1998 for the assessment years 1991-1992
and 1992-1993 passed by the learned Income Tax Appellate
Tribunal Peshawar Bench Peshawar whereby the appeals filed by
the Department were allowed and on setting aside the orders of
the learned Commissioner Income Tax, Wealth Tax, Appeals
Zone-II Peshawar, the case was remanded back to the Assessing
Officer with the direction to take fresh action on merits after
giving a reasonable opportunity of hearing to the
assessee/appellant. As both the appeals have arisen out of the
same order, we propose to dispose them of through this judgment.
The facts forming the background of this case are that the case of
the appellant was reopened on the basis of inspection report dated
29-1-1995 from the Additional Director Inspection arid Audit,
mainly on the ground that the closing stock of the office at
Bannu and Peshawar has not been shown on the assets side of
the balance sheet. The learned counsel appearing on behalf of the
appellant mainly contended that the order passed by the
Commissioner Income Tax (Appeals) was well-reasoned and
well-founded as such needed no interference and that
the learned Appellate Tribunal by acting against the law declared
in the case ofEdulji Dinshaw Limited versus Income Tax Officer
(1990 PTD 155) had erred by remanding the case. It was
further pointed out by the learned counsel that none of the
conditions enumerated in Sections 13 (c) and 65 of the Income
Tax Ordinance was in existence so as to call for the re-opening of
the case. The learned counsel to support his arguments also

Peshawar High Court

 2570
placed reliance on the case of M/s. Central Insurance Company
and others, vs. The Central Board of Revenue and others (1993
SCMR 1232). The learned counsel by concluding his
submissions contended that there was hardly any occasion for re-
opening of the assessment proceedings on the basis of the audit
objection when the material forming the basis of proposed re-
assessment was already available on the record and no case for
concealment was made out. 4. In reply the learned, counsel for
the respondent-Department
contended that the re-opening of the assessment proceeding
was rightly ordered because the document whereby a
huge asset of more than Rs. 50,00,000/-(Rupees fifty lacs) was
explained appears to be doubtful on the face of it. The learned
Appellate Tribunal, he contended, in the circumstances of
the case, was justified in remanding the case to the
Assessing Officer for making a probe into the genuineness or
otherwise of the document and that the decision of the Income
Tax Appellate Tribunal being free from any legal or jurisdictional
error merits no interference.
5. We have seriously considered the arguments of
the learned counsel for the parties and carefully perused the
record and the relevant
documents.
6. A perusal of the assessment order dated 30-3-1993
would reveal that the original assessment for the years 1990-1991,
1991-1992, 1992-1993 was completed under the self assessment
scheme. The statement of account filed with the return did not
show at all the closing stock of the office at Bannu and
Peshawar on the assets side of the balance sheet, which was
mainly the reason for re-opening of the assessment. Though
according to the stance taken by the assessee, the revised balance
sheets alongwith the loan agreement were despatched to the office
and were accordingly received but their availability at the time
of completion of assessment, let alone their consideration is not
born out from the record. The veiy observation of the
Commissioner Income Tax (Appeals) that "if the revised balance
sheets were misplaced by the office, it was not the appellant's fault,

Peshawar High Court

 2571
clearly goes to prove that neither the material, forming basis
for reopening of the case, was available nor it was consciously
considered at the time of the completion of assessment. No doubt
in the judgment so relied upon by the learned counsel
for the appellant it was held that once all the facts have been fully
disclosed by the assessee and considered by the Income Tax
Authorities and the
assessment has been consciously completed and no new fact
has been discovered, there can be no scope for interference
with the concluded transactions under the provisions of
Section 65 of the Ordinance on the ground that the income
chargeable to tax under the Ordinance has escaped assessment or
has been under assessed in the terms of Section 65 (1) (a) (b) of
the Ordinance. But in view of the distinct and distinguishable
facts and features of this case as adverted to above, we are afraid,
these cases will be of no help to the case of the appellant as
at the time of completion of assessment the availability and
conscious consideration of the material, forming basis for re-
opening of the case are not born out from the record. We, therefore,
find no illegality or jurisdictional error in the order of the learned
Income Tax Appellate Tribunal, so as to justify interference
therewith under Section 136 of the Income Tax Ordinance. For the
foregoing reasons these appeals being without merit are dismissed.
(A.A.) Appeal dismissed.

Peshawar High Court

 2572

2003 Y L R 1881

[Peshawar]

Before Ejaz Afzal Khan, J

SHER AHMAD---Petitioner

Versus

THE STATE and another---Respondents

Criminal Miscellaneous No.95 of 2002, decided on 26th April,

2002.

Criminal Procedure Code (V of 1898) --

-
----S.497(2)---Penal Code (XLV of 1860), S.302---Bail, grant of---
Further inquiry--Accused had not been charged in F I. R., but was
charged on following day of occurrence by a person who himself
was seen decamping from the scene of occurrence soon after the
incident in suspicious circumstances--Conflict existed between
medical and ocular evidence---Empties recovered from the spot,
did not match with the weapon of offence allegedly recovered at
the instance of accused as per report of Ballistic Expert---Case
against the accused was arguable for the purposes of bail and
necessitated further inquiry---Accused was released on bail, in
circumstances.

Tariq Bashir and others v. The State PLD 1995 SC 345; Sanaullah
and others v. State 1983 SCMR 15; Muhammad Ismail v.

Peshawar High Court

 2573
Muhammad Rafique PLD 1989 SC 585 and Syed Abdul Baqi Shah
v. State 1997 SCMR 32 ref.

M. A. Tahir Khan for Petitioner.

Saeed Akhtar Khan for the Complainant.

Syed Amjad Ali Shah for the State.

Date of hearing: 22nd April, 2002.

JUDGMENT

The petitioner who is charged in a case registered against him

under section 302, P.P.C. vide F.I.R. No.750, dated 29-9-2001
Police Station City Haripur for having committed the murder of
Rashid Khan deceased, when failed to get the concession of bail
from the lower forums, asked therefore, by moving this Court.

2. The learned counsel appearing on behalf of the petitioner

contended that the petitioner has not been charged in the first
information report; that the charge was thrown at his doorsteps on
the following day of the occurrence by a person who himself was
seen decamping from the scene of occurrence soon after the
incident in suspicious circumstances; that the medical evidence is
in conflict with ocular testimony; that the empties recovered from
the spot do not match with the weapon of offence allegedly
recovered at the instance of the petitioner as per report of the
ballistic expert; that the very motive set up in the F.I. R. for the
commission of the crime is belied by the F.I.R. bearing No.531
dated 12-7-2001 wherein one Aurangzeb instead of deceased
Rashid has been charged for the murder of brother of the
petitioner; that the supplementary statement charging the petitioner
for the crime being inadmissible cannot be taken to link the
petitioner with the crime and that the statement of Miskeen Nawaz
alias Chirya recorded under section 164 Cr.P.C. gain-saying his
earlier statement recorded under section 161, Cr.P.C. clearly lead
to the inference that there are not sufficient grounds to reasonably

Peshawar High Court

 2574
connect the petitioner with the crime and that there are sufficient
grounds for further enquiry as any doubt arising in case, even at
bail stage, is to be conceded in favour of the accused. The learned
counsel relied on the case of Tariq Bashir and others v. The State
PLD 1995 SC 345.

3. On the other hand the learned counsel for the State assisted by
learned counsel for the complainant contended that even 16 days'
delay in recording the statements of prosecution witnesses under
section 161, Cr. P. C. cannot be construed to the detriment of the
prosecution that the conflict in the ocular and medical testimony
would not constitute a ground for grant of bail, that refusal of P.W.
Miskeen Nawaz alias Chirya to support the prosecution version too
will not justify his release bail; that mere possibility of further
enquiry which exists in almost every case is no ground for treating
the matter as one of under section 497(2) of tote Cr.P.C.; that the
petitioner being prima-facie connected with the crime does not
deserve the concession of bail especially when the charge against
him flows from a person having no animus or animosity with the
petitioner and that superior Courts do not grant or cancel bail in
murder cases when trial is to commence within a short time. The
learned counsel to support his contentions referred to Imtiaz
Ahmed v. State PLD 1997 Supreme Court 545, Abdul Hayee v.
State 1996 SCMR 555, Sanaullah and others v. State 1983 SCMR
15 and Muhammad Ismail v. Muhammad Rafique PLD 1989 SC
585.

4. I have gone through the record and carefully considered the

submissions made by the learned counsel for the parties and
perused the judgments so relied upon by them.

5. A discrete look at the F.I.R. would reveal that no one has been
charged for the murder of the deceased. What is projected by its
tenor is that P.W. Muhammad Sadiq was seen decamping from the
spot soon after the occurrence and that the complainant party is
locked in blood-feud and criminal litigation with Akhtar Nawaz
and his brothers. The picture remained hazy unless a statement was
made by the said Muhammad Sadiq before police wherein he

Peshawar High Court

 2575
charged the petitioner as the person responsible for enacting this
tragedy because according to him the petitioner suspected that the
deceased conspired in the murder of his brother.

6. If the arguments of the learned counsel for the complainant are

taken into account then, I am afraid, there can be no case under the
sun which can be treated as one of further enquiry. If belated
charge by witness who himself was seen decamping' from the spot
in suspicious circumstances conflict between medical and ocular
evidence negative report of ballistic expert, refusal of a witness to
support the prosecution version are ignored and every reasonable
doubt arising as to the participation of an accused in the crime is
construed in favour of prosecution then the chapter relating to
grant of bail in Criminal Procedure Code has to be considered a
dead letter.

7. No doubt every passing day brings fast deterioration in the

efficiency of the Investigating Agency and standards of
investigation in unearthing the actual facts leading to the
commission of a crime and tracking down the person behind it but
it will not give a carte blanch to a Court of law to construe every
doubt and strain every fact in favour of prosecution for it is none of
the business of the Courts to supply omissions and supplement
deficiencies in investigation.

8. Why did the P.W. decamp from the scene of occurrence; why
did he not report the incident on the same night; why should the
deceased conspire in the murder of the brother of the petitioner;
whether blackening and charring on all the entry wounds could be
possible notwithstanding the fact that three fires were made from a
distance of 15 paces; what was the occasion for the petitioner to go
to the cattle-shed of Mustafa Khan; what would be the impact of
the report of the ballistic report which shows that the empties
recovered, from the spot do not match with the weapon of offence
allegedly recovered at the instance of the petitioner and what were
the circumstances which transformed a mouse into a lion over
night and infused courage in the P.W. to charge the petitioner on

Peshawar High Court

 2576
the following day are the questions which essentially require
further enquiry.

9. It is correct that in the judgments cited by the learned counsel

for the complainant bail was refused on account of a given factor
in each of them but no such judgment has been brought to the
notice of this Court where all these factors concurred and still bail
was refused. In the case of Syed Abdul Baqi Shah v. State 1997
SCMR 32 when tentative assessment of ocular and medical
evidence disclosed a conflict between them benefit thereof was
extended to the accused even at bail stage.

10. The argument addressed by the learned counsel for the

complainant on the strength of Muhammad Ismail v. Muhammad
Rafique supra that it is not a practice with the superior Courts to
grant or cancel bail in murder cases when the trial was to
commence within a short time is undoubtedly and ingenious
argument if seen out of the context of the aforesaid judgment
which also provides that bail under section 497 (2) of the Cr.P.C.
cannot be withheld on the ground of practice.

11. For the reasons discussed above, I have no hesitation to hold

that the case is arguable for the purposes of bail and thus
necessitates further enquiry. This petition is, therefore, allowed and
the petitioner is directed to be released on bail if he furnishes bail
bond in the sum of Rs. Ten Lacs with twos sureties each in the like
amount to the satisfaction of Judicial Magistrate, who is to ensure
that the sureties are local, reliable ands men of means.

H.B.T./748/P
Bail granted.

Peshawar High Court

 2577

Judgment Sheet
IN THE PESHAWAR HIGH COURT,
PESHAWAR
JUDICIAL DEPART

Cr. Misc: (BA) No. 217 of 2001.

JUDGMENT
Date of hearing……24/01/2002……………………………
Petitioner………Fazal –ur-Rehman………………………………
Respondents……The State…………………………………

*******************

EJAZ AFZAL KHAN,, J.- The petitioner who is charged is

a case registered against him under section 13, Arms Ordinance
read with section-7, Surrender of Illicit Arms Act, Sections 4/5,
Explosives Act and Section 20 of the Telegraph Act, vide F.I.R.
No.364 dated 15.10.2001, when failed to get the relief of bail
moved this Court therefor.
2. The facts as disclosed in the F.I.R. are that on the day of
occurrence the petitioner after alighting from a flying-coach
coming from Peshawar was carrying a bag in his hand that he was
searched by Muhammad Khan, Platoon Commander, post at
Ganddi Khankhel who found 57 folding iron butts of kalashinkov,
12 springs of airgun and various other spare parts of different arms
and as a result of that the case above-mentioned was registered
against him. On the following day while being in police custody he
led to the discovery of besides many other things, six hand grenade
and one kalashinkov of Russian origin.
3. The learned counsel for the petitioner while seeking bail for
the petitioner contended that the recovery of spare parts of
different weapons will not bring the case within the ambit of
section-13 of the Arms Ordinance; that the discovery so-called

Peshawar High Court

 2578
from the house of the petitioner is note-worthy of reliance as it was
not witnessed by two respectable inhabitants of the locality; that no
opinion has so far been solicited from an amour expert, whether
the hand grenades are alive or otherwise and that even if the instant
case is considered to have been covered by the Explosive
Substances Act, which is not the case because the police has not
applied any of those sections, no sanction for prosecution has been
obtained in accordance with the requirements of the Act, therefore,
the case becomes arguable for the purpose of bail.
4. The learned Deputy Advocate General strenuously resisted
the grant of bail to the petitioner by arguing that the petitioner is,
prima facie, connected with the crime which falls within the ambit
of prohibitory clause as such he is not entitled to be released on
bail.
5. The argument of the learned counsel for the petitioner that
two respectable inhabitants of the locality have not been associated
to witness the search and consequent recovery, therefore, no
reliance can be placed on that is without substance as it was held in
the case of Mir Muhammad v. The State (1995 SCMR 614) and
State v. Shankar (PLJ 1997 SC 678) that section 103 does not
apply to the recovery made in consequence of the information
given by the accused while being in custody.
6. However, we have not been able to understand why the
hand grenades have not so far been sent for the opinion of the
Arms Expert nd why the requisite sanction for the prosecution of
the petitioner has not been obtained even after the lapse of three
months. In the absence of any plausible explanation we are of the
firm view that the case becomes arguable for the purpose of bail.
These are the reasons for out short order dated 25.1.2002,
whereby we granted bail to the petitioner in this case.
Bail Granted.

Peshawar High Court

 2579
PLJ 2002 Cr.C. (Peshawar) 192 (DB)
PRESENT: QAZI EHSANULLAH QURESHI AND EJAZ
AFZAL KHAN, JJ.
GOHAR ZAMAN---petitioner
Versus
STATE---respondent
Crl. B No. 185 of 2001, heard on 13.11.2001
Criminal Procedure Code, 1898 (V of 1898) —
S. 497--Bail--Offence U/S. 7, 2 (iv) and (v) of Illicit Arms Act,
1991, read with Pakistan Arms Ordinance, 1965 S. 13 & 14 ---
Illicit arms and ammunition allegedly recovered from house of
petitioner are not of type as would fall within ambit of section 2
(iv) of illicit arms act, instead those are of type which would fall
within ambit of section 2 (v), illicit arms of act, 1991 which is
punishable with imprisonment which may extend to fourteen years
and extreme punishment can only be awarded when antecedents of
accused so justify--High Court doubts that petitioner is likely to be
awarded an extreme penalty bail granted.

Mr. Dost Muhammad Khan, Advocate for Petitioner.

Saleemullah Ranazai, Advocate for State.
Date of hearing: 13.11.2001.

JUDGMENT

Qazi Ehsanullah Qureshi, J. --- For reasons to be

recorded later, this application is allowed and the petitioner is
directed to be released on bail in the sum of Rs. Three lacs with
two sureties each in the like amount to the satisfaction of
Illaqa/Judicial Magistrate, who shall see that the sureties are local,
reliable and men of means.

Ejaz Afzal Khan, J.—The petitioner who is charged in a

case registered against him Under Sections 13/14 Arms Ordinance
read with Section 7 of Illicit Arms Act vide FIR No. 459 dated
30/9/2011 of Police Station Cantt: D.I. Khan for having been found
in possession of illicit arms and ammunition when failed to get the

Peshawar High Court

 2580
concession of bail from the lower forum has moved this Court for
the same relief.

2. Learned counsel for the petitioner contended that though

the police had prior
information that the petitioner is keeping illicit arms and
ammunition, they did not take along two respectable inhabitants of
the locality to witness the search and that there is absolutely
nothing on the record to show as to why the mandatory provision
of Section 103 Cr.P.C. providing for the conduct of search in
presence of two respectable inhabitants of the locality was
dispensed with.
3. On the other hand, the learned state counsel contended
that the search was
conducted in presence of a local councellor, therefore,
contention of the petitioner’s counsel is not correct.

4. A perusal of the FIR would reveal that the illicit arms

and ammunition
allegedly recovered from the house of the petitioner are not of
the type as would fall within the ambit of Section 2 (iv) of the
Illicit Arms Act, instead those are of the type which would fall
within the ambit of Section 2 (v), of Act ibid, which is
punishable with imprisonment which may extend to fourteen
years and the extreme punishment can only be awarded when
the antecedents of the accused so justify. In the absence of any
such antecedents, we doubt that the petitioner is likely to be
awarded an extreme penalty.

5. For the foregoing reasons, we allow this application and

admit the petitioner
to bail provided he furnishes bail bond in the sum of Rs. Three
lacs with two sureties each in the like amount to the
satisfaction of Illaqa/Judicial Magistrate, who shall see that the
sureties are local, reliable and men of means.

(T.A.F)
Bail granted.

Peshawar High Court

 2581
Judgment Sheet
IN THE PESHAWAR HIGH COURT, PESHAWAR.
JUDICIAL DEPARTMENT
Cr.A.No…470…of…2000

JUDGMENT
Date of announcement…26.10.2011…………
Appellant (s)…(State through Advocate General) by Mr. Lal Jan
Khattak, AAG.
Respondent (s) (Zafar Baig Bittani) by Mr. Muhammad Tariq
Khan Afridi, Advocate.

EJAZ AFZAL KHAN, C. J.- A case against the respondent was

registered under sections 420 PPC read with sections 5 (2) and 5
(c) of the Prevention of Corruption Act, 1947, Vide FIR No.14
dated 1.8.1995 in Police Station Anti Corruption Establishment,
Peshawar. The allegations against the respondent were that he
accumulated assets well beyond his means. The detail of the assets
is reproduced as below:-
S.No. Detail of property Owner name & relation
with accused
i Land measuring 2453 kanals 4 Iftikhar Zaffar (son) &
¼ marlas at village Surizai Nigar Sultana (wife)
Bala, Peshawar

ii Land measuring 8 marla at Iftikhar Zafar (son

Tehkal Bala, Peshawar
iii Land measuring 3 ½ marla at Iftikhar Zafar (son)
Tehkal Bala Peshawar
iv Land measuring 2 kanals one Saday Khan (father)
marla in Tehkal Payan,
Peshawar
v Bungalow No.3-A on 5 kanal, Mst. Zolanai (mother),
at Park Avenue, University Mst. Nigar Sultan (wife)
Town, Peshawar and Children.
vi Land measuring 1 kanal & 11 Haji Alif Shah,
marlas in Tank Bazar, Tank. purchaser, who gifted it
to accused’s mother and

Peshawar High Court

 2582
his family.
vii Land measuring 56 kanal 14 Mst. Nigar Sultana
marla in village Kech Tehsil (wife)
D.I. Khan
viii Plot No.130 Sector K-4Phase- Purchased by the son of
3, Hayatabad the respondent
ix Prize bond Respondent alleged that
he invested the money
in prize bond.
x Bittani Brick Kiln Respondent alleged that
his mother owned
Bittani Brick Kiln.
xi Bittani Arcade constructed in the name of Saday
over a landed property Khan, the father of the
measuring 2 kanals 1 marla. respondent
xii G.K. Construction Company G.K. Construction
Company run by the
mother of respondent.
xiii Taichee Engineering & This is another source
Contractors Company of business of the wife
& mother of the respdt.
xiv Motor Car No.PRC-91 Iftikhar Zafar (son)
(HONDA-1990)
xv Pajero Jeep No.DNB-7339. Pir Mubarak Shah (no
relation)
xvi Motor Car (Nissan-1991) Taj Khan (no relation)
xvii Land measuring 64 kanals 12 Purchased by Mst.
marlas in village Tank District Zolanai (mother)
Tank.
xviii Land measuring 2 kanals 5 Mst. Nigar Sultana
marla (with construction) at (wife)
Sahibzada Abdul Qayum Road,
University Town, Peshawar.

On completion of investigation, the respondent was forwarded to

the Court of the learned Special Judge, Anti Corruption NWFP
Peshawar for trial. The learned Judge on conclusion of the trial,

Peshawar High Court

 2583
acquitted the respondent, vide judgment dated 12.8.2000, hence
this Criminal Appeal.

3. The learned AAG appearing on behalf of the State

argued that though the respondent by occupying different offices in
C &W Department must have earned a lot in the form of salary and
other privileges but the assets accumulated by him are out of
proportion to what he could legitimately earn in this Department.
The learned AAG argued that 2453 kanals 4 ¼ marls was
purchased through as many as 67 mutations in the name of his wife
and son for a sum of Rs.74,76,137/- but neither of them being a
house wife and student respectively had any independent means of
income. Though, the learned AAG added, an effort was made to
produce oral evidence to show that the said prices were
exaggerated but such evidence being inadmissible cannot override
the entry in the document. The learned AAG next contended that
two plots one measuring 8 marls and the other measuring 3 ½
marlas, were also purchased by the respondent in the name of the
said son, who besides being minor and student did not have any
means of income. Bittani Arcade, constructed over a landed
property measuring 2 kanals 1 marla, the learned AAG submitted,
was also an enterprise of the respondent but it has been shown to
have been raised in the name of ‘Saday Khan’ his father. The
learned AAG submitted that Bungalow No.3-A Park Avenue
University Town, constructed over an area of 5 kanals, is an
offshoot of the means disproportionate to the legitimate means of
the respondent but this, too, has been attributed to the means of his
mother, wife and children, who had no independent resources of
income. Bungalow No.42-B, constructed on Sahibzada Abdul
Qayyum Road, University Town, Peshawar, over an area of 2
kanals and 5 marlas, the learned AAG contended, is another asset
belonging to the respondent, which was maneuvered to have been
transferred to the name of Mst Nigar Sultan, wife of the
respondent, on the basis of a fake settlement through Court. The
learned AAG while recounting the assets, also referred to the land
measuring 1 kanal and 11 marlas, in Tank Bazar, which was firstly
purchased by the respondent and one, Haji Alaf Shah, vide
mutation No.2361 dated 24.2.1991, but was subsequently

Peshawar High Court

 2584
transferred by way of gift to the respondent, his mother, wife and
children without there being any reason for that, whereon ‘Batani
Market’ consisting of 13 shops was constructed by the respondent.
The learned AAG by mentioning the land measuring 64 kanals 12
marlas in village Tank, submitted, that, this too, was purchased by
the respondent in the name of his mother, whereon he constructed
a Bungalow, whose value has been assessed Rs.15,98,893/-.
Similarly the learned AAG added, a landed property measuring 56
kanals 14 marlas in village Kech, Tehsil D.I. Khan, has been
purchased by the respondent in the name of his wife for a nominal
price of Rs.26,665/- which was later sold at Rs.11,86, 300/-.The
learned AAG submitted that Plot No.130 Sector K-4, Phase No.III,
Hayat Abad, Peshawar, was purchased by the respondent, which
was subsequently sold. The learned AAG submitted that over and
above all this purchase of Motor Car, Mode 1990-91 worth
Rs.3,00,000/-, one Motor Car Nissan, Model, 1991 worth
Rs.3,00,000/-, Pajeero Jeep worth Rs.2,00,000/- and Land Cruiser
Model 1990 worth Rs.27,00,000/- in the name of his son Iftikhar
Zafar go along way to prove that the respondent accumulated
assets beyond his ostensible means. The learned AAG by referring
to the prize bond worth Rs.21,00,000/- contended that though the
stance of the respondent is that he won prize bond and re-invested
its amount but this being an afterthought cannot plausibly explain
the means. The learned AAG by concluding his arguments
contended that all the assets being disproportionate to the
legitimate means make out a case for conviction but the learned
Trial Court laboured and overstretched the facts and circumstances
of the case to make out a case for acquittal.
4 As against that, the learned counsel appearing on
behalf of the respondent contended that none of the assets shown
in the account of the respondent belonged to him and that the
Prosecution by overstretching the facts and circumstances of the
case, tried to attribute all these assets to him and that the learned
trial Court after appraising the entire evidence on the record rightly
concluded that these being owned by the mother, wife and son of
the respondent cannot be credited to his account to make out a case
for conviction. The learned counsel by referring to section 5 (c) of
the Prevention of Corruption Act contended that once the assets

Peshawar High Court

 2585
have been accounted for to the satisfaction of the trial Court, this
Court cannot re-appraise the evidence or substitute its own view
for that of the trial Court. The learned counsel next contended that
though a landed property measuring 2453 kansls and 5 marlas has
been shown to have been purchased in the name of the wife of the
respondent and his son through 67 mutations for a sum of
Rs.74,76,137/- but the price appears to have been inflated to defeat
pre-emptive action against the vendees and that the actual price of
the said land does not go beyond sixteen lac, if seen in the light of
the yearly average, hence it is well within the means of his wife
and son, as the former being a daughter of the Chief Engineer in
the erstwhile West Pakistan inherited many built up houses in the
posh area of Peshawar and earned a handsome amount on their
disposal. The house, the learned counsel by elaborating his
argument submitted, situated in Shaheen Town earned her ten lac
as is evident from Ex.DW1-1 and an amount of Rs.1,50,000/-
through the sale of a house in Sufaid Dehri as is evident from the
registered deed Ex.DWX-5. The wife of the respondent, the
learned counsel explained, has also earned, Rs.1,29,32511/-
through her business as is evident from Ex.PW1-DX-3 and the
Police statement of the wife of the respondent and his son. This
fact, he submitted, has also been admitted by the Investigating
Officer in his statement recorded in the Court. Some foreign
remittances, the learned counsel submitted, also added to the assets
of the wife of the respondent and his son. He as well as his wife,
the learned counsel submitted, being born under the influence of a
Lucky Star won prize bonds. The learned counsel by recounting
other assets also mentioned a house situated on Sahibzada Abdul
Qayum Road, which was also transferred to the wife of the
respondent through a Court decree dated 13.9.1978. The learned
counsel next contended that all these assets, even if, they are
counted as those of the respondent, can be explained, if their real
price as it was at the relevant time is calculated and considered.
The learned counsel next contended that the respondent’s father
was not a man without a background as he owned a property in
village Kech which was purchased by him in 1971 for Rs. 26665/-
and sold it in 1990-92 for Rs.11,86,300/-. Bittani Arcade and the
property there under, the learned counsel submitted, belonged to

Peshawar High Court

 2586
the father of the respondent which was well within his means as
neither the cost of the property, nor the cost of construction thereon
exceeded his means. Land measuring 64 kanals 12 marlas, the
learned counsel added, was the ownership of the mother of the
respondent and in case it is taken as the property of the respondent,
it was well within his means to purchase it, if the sale
consideration mentioned in the relevant documents is taken into
account. The land measuring 5 kanals and Bungalow, the learned
counsel maintained, was an outcome of the assets of the mother of
the respondent. With regard to the plot measuring 10 marlas, the
learned counsel argued, that it was purchased for Rs. 29000/-; that
though cost of construction raised thereon has been shown to be
Rs.5,63000/- but if the profit of the contractor is excluded, it would
be far less. A property measuring two kanals and 15 marlas, the
learned counsel submitted, was allotted to Haji Alif Shah for a sum
of Rs.71,00,000/- out of which one kanal 11 marlas has been gifted
to the respondent, his wife and sons but it was in lieu of possession
which had been with the mother of the respondent before its
allotment to the said Haji Alif Shah. The father of the respondent,
the learned counsel submitted, had many other sources of income
just as watermill as is evident from the extracts from the record of
rights. The property measuring 64 kanals situated in Ali Khel, the
learned counsel added, was the ownership of the father of the
respondent, which devolved on him on his demise to the extent of
38 kanals and that its disposal brought him a handsome amount of
money. The mother of the accused, the learned counsel contended,
also owned a brick-kiln which not only yielded a good amount of
income to her but also brought her fortune on its disposal. Over
and above that, the learned counsel submitted, she was also
Director of G.K. Construction Company, which earned her a huge
income. No case, the learned counsel added, is made out, if the
income, his wife and son earned through independent business is
taken into account. The learned counsel by concluding his
arguments contended that the Prosecution has miserably failed to
prove the case against the respondent and that the finding of
acquittal being based on proper appraisal of evidence cannot be
interfered with. The learned counsel to support his contentions
placed reliance on the cases of Khalid Aziz-Vs-The State (2011

Peshawar High Court

 2587
SCMR 136), Syed Zahir Shah and others-Vs-National
Accountability Bureau and others (2010 SCMR 713) and
Allahdino Khan-Vs-The State (1992 MLD Krachi 564).
5. I have gone through the record carefully and
considered the submissions of the learned counsel for the parties.
6. The first property to be considered in this case is the
one, which is measuring 2453 kanals 4 ½ marlas, situated in
Mauza Surizai Bala, Tehsil and District Peshawar. It was
apparently purchased through 67 mutations by Iftikhar Zafar and
Nigar Sultana, son and wife of the respondent respectively. Its sale
price has been shown as Rs.74, 76, 137/-. The stance of the
respondent is that this property was not purchased by him but his
wife and son for a sum of Rs. 16,00,000/- but in order to avoid pre-
emptive action, it was entered as Rs.74,76,137/-. Granted for the
sake of arguments, that this property was purchased by the wife
and son of the respondent, but where did they bring this amount
from? The answer of the respondent was that both of them had
independent business. Reference was made to a Certificate
showing that an amount of Rs.1, 29, 32,511/- was paid to Taichee
Engineering Company. D.W.2 appeared in the Court to testify to
the correctness of this Certificate but who was the Managing
Director of this Company who owned that and how its income was
dished out to the wife and son of the respondent remained
unsubstantiated. A reference was made to the Police statement but
such statement having limited scope under section 162 of the
Cr.P.C., cannot be treated as substantive piece of evidence. Nor
can it be used to corroborate the witness making it. The wife and
the son of the respondent having the first hand account could have
substantiated all this but neither of them bothered to appear in the
Court to do the needful. Their evidence could have been the best
possible evidence in this behalf but when it was withheld, the
inference would be unavoidable that it would have gone against
him, if it were produced. Even otherwise, the stance that the
Company was run by the wife and son of the respondent, appears
to be preposterous when the one being a house wife and the other
being a minor could not have done that independently. Even if, for
a while, it is assumed that it could be done independently by each
of them, the fact that where did they get the money from for such

Peshawar High Court

 2588
investment remained unproved and unsubstantiated. It was,
however, canvassed at the bar that the wife of the respondent being
a daughter of Chief Engineer in the erstwhile West Pakistan
inherited huge assets from him but it, too, was not given the
substance of proof. It can, therefore, be safely deducted that this
Company with all its investment and earnings was an enterprise of
the respondent himself. But as he failed to account for the amount
of investment, the amount of earning cannot be held to be
proportionate to his known means of income.
7. Next comes the property measuring 8 and 3-1/2
marlas situated in Tehkal Bala. It was allegedly purchased in the
name of Iftikhar Zafar. This deal, too, appears to have been
transacted by the respondent, as the son of the respondent being
minor has been held above to have no means of his own to
purchase this property.
8. The property at serial No.4 measuring 2 kanals and 1 marla
whereon ‘Batani Arcade” has been constructed is shown to be the
property of Saday Khan, the father of the respondent. But where
did he bring the money from for purchasing it, has not been proved
on the record. It was alleged that the father of the respondent was a
business man but what type of business he ran and how could he
earn that much to purchase this property which is worth
Rs.90,20,000, according to the I.O. has not been accounted for.
Assuming that the price of the vacant site as mentioned in the
mutation is Rs.82,000/- but where did the money for raising
superstructure thereon, which is worth Rs.34,39, 619/-, come from,
remained unanswered. It was also alleged that the father of the
respondent was not a rootless phenomenon but a man well
entrenched in the tribal area with abundant means and resources
but these assertions remained bare and bald and have not been
given the attire of proof. The value of construction was also
disputed by arguing that if the profit of the contractor is deducted,
the amount does not go to that height. The value of forty shops at
any rate would not go to the half, even if we exclude 10 or 20 %
profit of the contractor. It would, never-the-less, go above 30,
00,000/-. This value appears to be correct when according to the
assessment order dated 21.6.1997 of the Special Officer Income
Tax and Wealth Tax, the cost of the construction has been assessed

Peshawar High Court

 2589
as Rs.37, 29,500/-. In the absence of any explanation or any
evidence in black and white showing that the father of the
respondent had any independent means and resources or a
flourishing business, this Court would be constrained to hold that
this property too was owned by the respondent and so was the
superstructure raised thereon. The fact that it went to the children
of the respondent to the exclusion of others when the father of the
respondent was succeeded and survived by many legal heirs
besides the respondent, would also prove that this was the
exclusive ownership of the respondent.
9. Bungalow No.3-A is yet another property in the
series. It is shown to have been purchased by Mst. Zolanai, mother,
Mst. Nigar Sultana, wife and four sons of the respondents. It is a
bungalow situated at Park Avenue, University Town, Peshawar,
constructed over an area of 5 kanals. It was purchased for a sum of
Rs.10,00,000/- (Rs. Ten lac), vide registered sale deed dated
29.11.1990. Its parameter is shown to have costed them
Rs.70,000/-. The price of the vacant site, as per report of the
Administrative Officer of Town Committee which is Ex.P.W.1/92
is Rs.10, 00,000/- and as per report of Patwari Halqa, which is
Ex.PW. 1/93 is Rs. 70,00,000/- (Rs. Seventy lac). A Bungalow
constructed over an area of 5 kanal could not conceivably be
purchased for a sum of Rs.10,00,000/- even in 1990. This being
unspeakably low cannot be accepted. Therefore the estimate as to
the probable price of the vacant site given by the Patwari does not
appear to be far from the hard facts in the world of reality. No
effort has been made either by the Prosecution or by the defence to
prove as to what are the details of the covered area and what is its
value but in no case, its value could be less than Rs.50,00,000/- in
the year, 1990. It has been alleged by the appellant that it was
purchased by his son Iftikhar Zaffar out of his income but it does
not appear to be correct as I have already held that he had no
independent means and sources of income. Whether its value is
Rs.10,00,000/- or 50,00,000/-, it could be purchased by a man of
respondent’s background in view of his earnings from his service,
he rendered in C & W Department.
10. Next comes the property measuring one kanals and
11 marlas situated in Tank Bazar. According to the version

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 2590
projected by the respondent on the record, this property was gifted
by Alif Shah to the respondent, his mother, his wife and sons but
what was the reason for gifting it to the aforesaid persons has not
been plausibly explained. An effort was made to prove on the
record that this property was not only in possession of the mother
of the respondent but a good number of shops was also constructed
thereon by her and that one kanal and 11 marlas was gifted to the
names of the above mentioned persons not without occasion but in
lieu of possession but this story appears to be an afterthought. If it
were so, then the shops would have been constructed over the
entire property and the entire property would have been in
possession of the mother of the respondent. Apart from this, how
could the mother of the respondent get or retain possession of this
property in the presence of her husband, her sons and grand sons.
It, therefore, follows that the respondent himself is the owner of
the property and the plea of gift in lieu of possession is just a
veneer to hoodwink the onlookers and the Court. This stance of
the respondent also runs counter to the stance he has taken in his
written reply which is Ex.P.W.17/1. In any case, the value of this
property, according to the mutation, whereby it was transferred to
Alif Shah by the Central Government is Rs.71,00,000/- (Rs.
Seventy one lac). The share of the respondent comes to
Rs.35,50,000/-. The value of the shops thereon has been worked
out by the technical staff as Rs.2,66,000/-. I, thus, hold that the
landed property measuring one kanal and eleven marlas and shops
constructed thereon form part of the assets of the respondent which
being out of proportion to his known means, cannot be said to have
been satisfactorily accounted for. I, against this backdrop, do not
agree with the finding of the learned trial Court which besides
being laboured and overstretched is not supported by any evidence
on the reocrd.
11. Another significant asset in the account of the
respondent is the land measuring 56 kanals and 14 marlas in
village Kech Tehsil D.I.Khan. According to the revenue papers,
this property was purchased by Mst. Nigar Sultana, the wife of the
respondent, at a price of Rs. 26,665/- in the year, 1971 but it was
sold for Rs.11,86,3300/- The stance of the respondent is that this
property was purchased by his wife who being a daughter of a

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 2591
former Chief Engineer of the then West Pakistan had the means to
do so but there is no evidence on the record to show that this
amount was paid to her by her father or her brothers out of the
assets left by her father. The learned trial Court has erroneously
accepted the bald assertion of the respondent without there being
any evidence to substantiate the same. The wife of the respondent
never opted to appear as DW in person nor through her attorney to
substantiate the same, therefore, this landed property, too, appears
to be an asset of the respondent.
12. Plot No.130 Sector K-4 Phase-3, Hayatabad, was
yet another asset of the respondent to be accounted for. The price
of this plot including construction thereon has been assessed as
Rs.9,85,034/-. According to the trial Court, this plot was purchased
by the son of the respondent but when it has already been held
above that the son of the respondent on account of his being
student at the relevant time had no independent means of income
to purchase this property, this too, would be a part and parcel of
the assets of the respondent. An attempt was made to show that the
plot as well as construction thereon is not worth Rs. 9,85,034/- but
that fell flat as the specification of the covered area and its nature
detailed in Ex.P.W.1/88 went un-rebutted. Therefore, it would be
presumed to be correct in the circumstances of the case. Even
otherwise, a covered area of 2563 Sft in the relevant year could not
be constructed for an amount less than the one mentioned above.
13. Then come the prize bonds. The respondent alleged
that he invested the money in prize bonds and that he won prizes
up to 21,25,000/-. He produced evidence in defence to substantiate
the same and succeeded to a great extent in proving his plea, the
Prosecution could not produce any evidence to show that the
respondent purchased the bond from a lucky winner to whiten his
black money, hence the amount of the bond has rightly been added
to the legitimate assets of the respondent.
14. The respondent alleged that his mother owned
Bittani Brick kiln but he could not establish as to where did his
mother bring this money from to establish brick kiln. He also
alleged that his father left behind a landed property measuring 64
kanals 6 marlas in village Ali Khel out of which he inherited 38
kanals and that its disposal brought him a handsome amount. But

Peshawar High Court

 2592
how his father happened to be the owner of this property, when
was it sold, and what was received in turn, when sold, remained
abstract and unproved as far as the record goes.
15. G.K. construction Company, D.I. Khan, was also
alleged to be a Company run by his mother but how all this
blossomed into a business concern and where did the money come
from for investment, remained unsubstantiated.
16. Taichee Engineering and Contractors Company was
another source of business of the wife and mother of the
respondent but where did the money for investment therein come
from have already been commented above.
17. The finding of the learned trial Court appears to be
correct as far as vehicles are concerned. However, the prices of
Motor Car No.PRC-91 (HONDA-1990) as Rs.3,00,000/-, Pajero
Jeep No.DNB-7339 as Rs.27,00,000/- and Motor Car (Nissan-
1991) as Rs.3,00,000/- are accepted to be correct in the absence of
any evidence brought by the respondent to the contrary.
Expenditure on the education of children and election also appears
to be correct, therefore, these findings need no interference.
18. Yet another landed property measuring 64 kanals
and 12 marlas situated in village Tank allegedly purchased by
Mst.Zolanai, the mother of the respondent, was required to be
accounted for. Respondent showed no concern of his own with
that. Its value was worked out as Rs.20,45,500/- but the respondent
claimed that its price was not more than Rs.67000/-. A bungalow
has been constructed thereon which is shown to have been made of
mud and then covered with cement, but as I have already held
above that the mother of the respondent had no sources of her own,
this property, too, has to be credited into the account of the
respondent. The value of the property has been worked out to be
Rs. 20,45,500/- while the value of the Bungalow constructed
thereon has been assessed by the Technical Expert as Rs.
15,00,000/-. The value of the land which is shown to be
Rs.64,600/- in the mutation is accepted to be correct, as no other
reliable evidence has been brought on the record by the
Prosecution to prove it to be more than that. The value of the
construction made on the said property if assessed by excluding the
profit of the contractor and other ancillary expenditure, it would

Peshawar High Court

 2593
not be less than Rs.10, 00,000/- by any means. Its value is, thus,
determined accordingly.
19. Then comes the landed property measuring 2 kanals
and 5 marlas and the Bungalow constructed thereon. It was also
argued that it was transferred by the brother of the respondent’s
wife to her name pursuant to a settlement amongst the legal heirs
of the Chief Engineer but averment in the plaint of the said suit
showing that the said house was purchased by her from her brother
belies the claim that it was transferred by her brother pursuant to a
settlement amongst the legal heirs. The indecent haste with which
the proceeding in the Civil Court was concluded within three days
shows that it was purchased by the respondent himself and that the
proceeding before the Civil Court was just a contrivance to give it
a different hue and colour. Some thing in black and white could
have been brought on the record to show that the house, thus,
transferred was owned by the father of the respondent’s wife and
that it fell to her lot pursuant to a family settlement, but nothing of
that sort was done. I, therefore, hold that the land was purchased
by the respondent himself and that it was he who built it. The value
of the landed property and the construction thereon, according to
the T.O. has been assessed as Rs.14,07,400/- but according to the
analysis and assessment of the learned trial Court, which appear to
be close to the grave ground realities, it comes to Rs.
5,71,604/-. The value of the landed property would, in no way, be
less than 5, 00,000/-, even if it is stretched to the lowest of the low.
The total value of the bungalow with the vacant site is, thus,
worked out as Rs.10, 71,604/-.
20. Then comes the turn of two pieces of land at serial
Nos. ii and iii. The former measuring 8 marlas has been purchased
for Rs.1,20,000/-, vide mutation No.7384 dated 18.8.1990 while
the latter measuring 3 and a half marla has been shown to have
been purchased for Rs.50,000/-, vide mutation No.7388 dated
1.9.1990 in the name of Iftikhar Zafar. As it has already been held
above that he was minor at the relevant time and had no
independent means of income, this property would also go into the
account of the respondent.
21. During the course of arguments, the learned counsel
for the respondent contended that the respondent through his salary

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 2594
has earned more than Rs.17,00,000/- and as such, he could
purchase many of the assets listed above, therefore, no case is
made out against him, but this stance of the learned counsel does
not appear to be tenable, when the value of all the assets on their
calculation, is found to have exceeded his earnings and known
means of income.
22. The value of the assets as has been worked out after
examining the evidence on the record is reproduced below:-

S.No. Detail of property Value

i Land measuring 2453 kanals Rs.74,70,137/-
4 ¼ marlas at village
Surizai Bala, Peshawar
ii Land measuring 8 marla at Rs.1,20,000/-
Tehkal Bala, Peshawar
iii Land measuring 3 ½ marla Rs.50,000/-
at Tehkal Bala Peshawar
iv Land measuring 2 kanals Rs.82,000/-
one marla in Tehkal Payan,
Peshawar
v Bungalow No.3-A on 5 Rs.50,00,000/-
kanal, at Park Avenue,
University Town, Peshawar
vi Land measuring 1 kanal & Rs.35,50,000/-
11 marlas in Tank Bazar, +
Tank. Rs.2,66,000/-
Total:
Rs.38,16,000/-

vii Land measuring 56 kanal 14 Rs.26,665/-

marla in village Kech Tehsil
D.I. Khan
viii Plot No.130 Sector K-4 Rs.9,85,034/-
Phase-3, Hayatabad.
ix Prize bond Money invested
in prize bond.
x Bittani Brick Kiln ownership not
established

Peshawar High Court

 2595
xi value of vacant site of Rs.30,82,000/-
Bittani Arcade: Rs.82,000/-
Value of construction:
Rs.30,00,000/-
xii G.K. Construction Company No income has
been shown
xiii Taichee Engineering & Rs.1,29,32,511/-
Contractors Company
xiv Motor Car No.PRC-91 Rs.3,00,000/-
(HONDA-1990)
xv Pajero Jeep No.DNB-7339. Rs.27,00,000/-
xvi Motor Car (Nissan-1991) Rs.3,00,000/-
xvii Land measuring 64 kanals Rs.20,45,500/-
12 marlas in village Tank
District Tank.
xvii Land measuring 2 kanals 5 Rs.5,00,000/-
marla (with construction) at
Sahibzada Abdul Qayum Rs.5,71,604/-
Road, University Town,
Peshawar.
Total Rs.3,99,81,451/-

23. The legitimate earning of the respondent is detailed below:-

(i) Amount through salary Rs.17,00,000/-

(ii) Amount through Prize Bond
Rs.25, 00,000/-

24. A man with the earnings mentioned above could

easily purchase the properties listed at serial Nos. ii, iii, iv, vii and
viii. But the properties at serial Nos. i, xi, xvii and xviii appear to
be disproportionate to his known means of income. Similarly, the
vehicle at serial No. xv appears to be disproportionate to his known
means. It was alleged that the vehicle belonged to his son, but that
is not believable, as he being minor had no independent means of
income, which could enable him to purchase it. The vehicles
reflected at serial Nos. xiv and xvi do not appear to be
disproportionate to his known means. Properties mentioned at

Peshawar High Court

 2596
serial Nos. i, xi, xvii and xviii have not been satisfactorily
accounted for and appear to be disproportionate to the known
means of the respondent. The charge against the respondent in the
circumstances of the case has been proved beyond doubt,
therefore, the finding of the learned trial Court being laboured and
against evidence on the record cannot be maintained.
25. The cases of Syed Zahir shah and others-Vs-
National Accountability Bureau and others (2010 SCMR 713)
and Khalid Aziz-Vs-The State (2011 SCMR 136), are not
relevant to the case in hand in view of the peculiar facts and
circumstances of the case. Therefore, notices to the Benamidaran
would not be essential as two of them being dead and the other two
being a house wife and a minor respectively at the relevant time
could not have any independent means of their own to purchase the
assets. That is why, the learned counsel for the respondent, during
the course of arguments, did not press this issue at all. Reference to
the case of Allahdino Khan-Vs-The State (1992 MLD Karachi
564), too, will not advance the case of the respondent as
preponderance of probabilities do not even remotely suggest that
the assets accumulated by the respondent are not his.
26. The sum total of the above discussion is that the
charge of misconduct stands proved against the respondent beyond
any shadow of reasonable doubt. Having held so, I allow this
appeal and set aside the impugned finding. The respondent being
found guilty of misconduct is convicted and sentenced to three
years R.I. with a fine of Rs.50,00,000/- (Rs. Fifty lac) or in default
to undergo six months S.I. under section 5 (2) of the Act. The
properties at serial No. i, xi, xvii and xviii being disproportionate
to the known means of the respondent are directed to be
confiscated. He is present in the Court. He be taken into custody
for being shifted to Jail for serving the sentence.

Peshawar High Court