B & I Law Firm Karachi

06/08/2017

29/07/2017

P L D 2006 Peshawar 47

Appreciation of evidence---Reduction in sentence---Accused did not challenge his conviction, but had pressed his appeal for reduction in sentence-Voluntary judicial confession though retracted by accused in his statement under S.342, Cr.P.C., but same was deliberately suppressed by the prosecution---Confessional statement of accused, though was part of the record submitted to the Trial Court along with complete challan, but same was not exhibited at the trial---Deceased had sustained only one inlet wound on its back upper portion of the right hip causing exit on the frontal part of upper
thigh---Crime weapon recovered from the person of accused was containing 5 live rounds and keeping in view the ocular account furnished by prosecution witness,
there was hurdle for accused to make successive fire at the deceased then an injured, but no such attempt was
made, which fact had made case of accused within the ambit of lesser punishment provided for Qatl-e-Amd---Awarding life imprisonment to accused, in circumstances, would meet ends of justice---Accused was wrongly awarded death sentence by ignoring mitigating circumstances and lacuna in the case of
prosecution---Maintaining conviction of accused, his death sentence was converted into life imprisonment, but in circumstances of case coupled with financial position of accused, it was held that Trial Court had rightly awarded amount of compensation payable to legal heirs of deceased under S.544-A, Cr.P.C.

29/07/2017

P L D 2006 Supreme Court 43

302, 324, 337-A(i) & 34---Criminal
Procedure Code (V of 1898), Ss.265-B, 265-C, 265-D, 265-E
265-F---Appreciation of evidence---Violation of mandatory provisions of Criminal Procedure Code---Court in the present case, without examining accused, charged them and without waiting even for seven days after supply of copies to
them, called prosecution evidence---Court appeared to be in an unnecessary haste, thereby flouting and violating mandatory provisions of Code of Criminal Procedure---Law makers had very wisely incorporated relevant provisions in Code
of Criminal Procedure intending to ensure just, fair and safe trial of accused---Purpose was that accused should know beforehand after perusal of documents and statements of witnesses reduced to writing under S.161, Cr.P.C.,
the charges levelled against him and evidence in support of those charges besides the conduct and antecedents of witnesses who were to be examined against him---Gap of at least seven days would also enable the court to study the
case and satisfy itself as to whether any case for trial was made out or not; it was real, not the mechanical process which was endeavoured to be achieved by law to save time of the Courts and accused from being vexed and dragged in a case in which there was no ground for proceeding.

29/07/2017

P L D 2006 Karachi 36<

----Art. 199---Constitutional
petition---Lease/allotment, cancellation of---Petitioners, who were sucessors-in-interest of original lessees/allottees, had impugned in theirm constitutional petitions order passed by District Officer (Revenue) by which entries in village Form VII in their favour were cancelled on the ground that such entries were erroneous as original leases/allotments in favour of their
predecessors-in-interest were already cancelled by the then Deputy Commissioner---Petitioners had claimed that on their application, different leases were transferred in their favour by the then Mukhtiarkar and subsequent thereto on their approaching said Mukhtiarkar, mutation was effected in the
record of rights in their favour, but entries kept in their favour were cancelled by District Officer (Revenue) on the ground that original lessees/allottees from whom petitioners claimed their interest were no more tenants of said land---Examination of record showed that entries kept by the then Mukhtiarkar were completely in violation of Revenue Law and said entries
were kept without looking into the corresponding entries available in the record by which leases in favour of predecessors-in-interest of petitioners were
already cancelled with red ink pursuant to orders of the then Deputy Commissioner---Such cancellation note against original entries was made by concerned officer, but despite said note at seven different places of corresponding entries, the Mukhtiarkar had kept fresh entries in favour of petitioner---Explanation of Mukhtiarkar that said seven entries which mentioned
cancellation, did not appear on the day when entries in favour of petitioners were kept, was not plausible---Anti-Corruption Department was directed to initiate criminal proceedings against the Mukhtiarkar as well as against concerned Tapedars by lodging F.I.R.---Senior Member Board of Revenue or any
other Authority in that regard, was also directed to immediately initiate disciplinary action against said Mukhtiarkar and concerned Tapedars---Constitutional petitions filed by petitioners, were dismissed---Petitioners could avail their remedy, if any, under Revenue Law

29/07/2017

P L D 2006 Supreme Court 24

Constitution of Pakistan (1973), Art. 185(3) ---Election of
District Nazim---Declaration of assets by the candidate---Candidate submitted his nomination papers along with Form XIX under R.12(4), N.-W.F.P. Local Government (Conduct of Elections) Rules, 2005 meant for declaration of assets---Returning Officer, on the day of scrutiny of papers, obtained a fresh declaration from the candidate containing details, of assets owned by him and nomination papers submitted by the candidate were accepted---One of the voters presented appeal
before the District Returning Officer stating that the previous Form XIX filed with the nomination papers was considered incomplete by the Returning Officer only on the ground that the candidate had not stated his income from a Sugar Mill mentioned at S.No.4 of the Form and position of subsequently filed Form XIX was the same---Validity---Held, Returning Officer was empowered to reject a nomination form on conducting summary enquiry and he had no jurisdiction to
allow a candidate to submit further explanation of the assets owned by him during the process of scrutiny---Such concession, if extended to a candidate, would tantamount to allowing him an opportunity to make up deficiency, if any, in submitting nomination papers---Essentially such concession could not be extended to candidate after the expiry of the date for filing of nomination papers, as it would mean that period of filing nomination papers along with Declaration Form XIX had been extended to the benefit of the candidate, which was prohibited in law

29/07/2017

P L D 2006 Supreme Court 1

Cancellation of allotment of land---Land in dispute was allotted in the name of appellants on 18-3-1971 and appellants had obtained Proprietary Rights Transfer Order on 15-4-1993---High Court, however, vacated allotment of appellants and directed rehabilitation authority to allot land in favour of respondents, if found deserving, on preferential basis of their being old
tenants---Only ground on basis of which High Court had cancelled allotment and Proprietary Rights Transfer Order in favour of appellants was that appellant was born in 1948 and he was included in the family of his mother on account of which he was not entitled to separate allotment---High Court had not taken notice of the fact that appellant was not alone, but he was one of members of family whose mother was refugee and said members claimed allotment jointly as sons of their refugee mother---Custodian of Evacuee Properties in his judgment
had recorded that mother of appellant had got her statement recorded that she being in advanced old age, wanted the allotment of land to be made in the name of appellant her son---Such fact had also not been taken into consideration by
the High Court at the time of cancelling allotment of appellants---Validity---Person who was not refugee, though could not claim benefits and perks attached to
refugee's status, but, if one was descendant of refugee, who was entitled to the perks, as in the present case, to the allotment and had not obtained benefits/perks to which he/she was entitled; and by way of a statement had categorically stated that allotment could be made in the name of her son; descendant of that refugee could not be deprived of that right, which his father or mother had.

29/07/2017

2014 P.Cr. L J 599

497(2)---Penal Code (XLV of 1860), Ss. 365-B 376---Kidnapping, abducting or inducing woman to compel for marriage etc., rape---Bail, grant of--- Further inquiry--- abscondment would not come in the way while granting him bail

1-1/2 months in lodging of F.I.R. was not explained---Alleged victim was a married woman of 50 years having grown-up children---Accused and co-accused were father and son, therefore it did not appeal to a prudent mind that a father and son would commit zina-bil-jabr with the victim together---Neither any report of Chemical Examiner qua vaginal swabs was obtained nor DNA test was conducted and even semen grouping had not been done to ascertain involvement of accused and co-accused---Semen found on vaginal swabs of the victim would lose its evidentiary value in such circumstances---Doctor who conducted medical examination of victim did not observe any marks of violence or resistance on part of the victim---Accused and co-accused were found innocent by the police and their names were placed in Column No.2 of the report under S. 173, Cr.P.C.---Accused and co-accused were no more required by police for further investigation---Case was one of further inquiry---Accused and co-accused were released on bail in circumstances.

29/07/2017

2014 P.Cr.L.J 396

497(2)---Penal Code (XLV of 1860), S.302/34---Qatl-e-amd, common intention---Bail, grant of---Further inquiry---Implication of accused on basis of second supplementary statement before police Abscondence of accused did not adversely affect his bail petition as his case called for further probe into his guilt within the scope of S.497(2),Cr.P.C.---Accused was admitted to bail accordingly.

29/07/2017

P L D 2006 Supreme Court 1

Suo motu action under Art. 184(3) of the Constitution
originating from an article appearing in a weekly, sent by a citizen with the request that on having gone through the said article, restriction be imposed on kite-flying as it was causing loss of billions of rupees of property as well as valuable human being---Validity---Held, Punjab Prohibition of Dangerous Kite
Flying Activities Ordinance, 2001 did not fulfil certain
equirements as indicated by Lahore High Court in the case M.D. Tahir, Advocate v. Government of Punjab reported as 2001 CLC 1180 and the result was that day by day the
incidents of causing huge damages to the public property and life were increasing on account of kite-flying activity---Kite-flying activity, prima facie, was no more the activity of enthusiasm but a serious threat to the lives of innocent
citizens---