Recovery proceedings

At the trial, prosecution did not produce owner of the house as witness, thus, adverse inference was drawn under Article 129(g) of Qanun-e- Shahadat, 1984 to the effect that had the above witness been produced by the prosecution at the trial, he would not have supported the version of the prosecution

Place of occurrence was surrounded by Abadi but investigating officer did not associate any person for the recovery of dead body

Investigating officer did not prepare recovery memo of dead body of deceased and simply made memo of iron box

No private witness of locality was associated to attest alleged iron box

Due to non-association of any private witness of locality to attest, the recovery memo lacked independent corroboration and the same was disbelieved

Judgments of Courts below were against the principles of appreciation of evidence in criminal dispensation of justice and the law settled by Supreme Court

Supreme Court set aside conviction and sentence awarded to accused and he was acquitted of the charge

Appeal was allowed.

Neither any video in shape of recording and photographs of alleged recovery was collected by police nor any private witness from locality was associated to prove alleged recovery from the possession of accused

Use of modern devices during recoveries, is not merely a procedural formality but a crucial safeguard to protect innocent persons from potential police atrocities

It provides an objective and unbiased account of recovery process, reducing risk of false implications to ensure that rights of accused are protected

In cases of stringent punishment, prosecution must present clear, cogent and reliable evidence to prove guilt of accused beyond reasonable doubt

In absence of video evidence and independent witnesses, prosecution's case relied on testimony of police officers involved in raid, which was insufficient to meet required standard of proof

Ultimate incarceration of guilty person could repair the wrong caused by mistaken relief of interim bail granted to him but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of case albeit his acquittal in long run

Supreme Court set aside the order passed by High Court and bail after arrest was granted to accused

Petition was allowed.

Accused persons were convicted by Trial Court for qatl-i-amd; one was sentenced to death whereas the other was sentenced to imprisonment for life

High Court maintained the conviction but converted death sentence into imprisonment for life

Validity

Complainant and other prosecution witnesses in their statements recorded at trial, made dishonest improvements for assigning specific roles to each accused

Such improvements created serious doubt about veracity of their testimony and it was not safe to place reliance on such statements

Eleven crime empties allegedly recovered from crime scene and one 30 bore pistol allegedly recovered on the pointing of one accused were sent together to Forensic Science Laboratory, wherefrom report was negative

No private witness of locality was associated to attest alleged recovery of crime weapon on the pointing of accused

Due to non-association of any private witness of locality to attest recovery of alleged weapon of offence, and due to lack of independent corroboration, the recovery was disbelieved

Prosecution did not produce an injured passerby and an eye-witness of the occurrence

Adverse inference was drawn under Article 129(g) of Qanun-e-Shahadat, 1984 to the effect that had such witnesses been produced by prosecution at the trial, they would not have supported version of prosecution

Alleged motive lacked force necessary to connect accused persons with the commission of offence

Supreme Court set aside conviction and sentences awarded to both the accused persons as prosecution failed to prove charge against them beyond reasonable doubt

Appeal was allowed.

Authorities initiated recovery proceedings against respondent / taxpayer for filing delayed tax returns and payment of tax due

Appellate Tribunal Inland Revenue set aside imposition of penalty and default surcharge on the ground that liability on account of principal amount of tax stood discharged voluntarily prior to initiation of proceedings under S. 11(1) of Sales Tax Act, 1990

Validity

Even if upon filing of return after due date no tax, as defined in terms of S. 2(34) of Sales Tax Act, 1990 and subject to the context, was payable, still penalty and default surcharge could be ordered and claimed

Restrictive interpretation of scope of "order of assessment of tax" would nullify disciplined compliance envisaged in law and otherwise would render Ss. 33 & 34 of Sales Tax Act, 1990 as redundant

Such redundancy was to be avoided upon harmonized reading of applicable provisions

Division Bench of High Court set aside order of Appellate Tribunal Inland Revenue as the same was legally defective

Division Bench of High Court remanded the matter to Appellate Tribunal Inland Revenue for de novo determination on appeal of respondent / taxpayer afresh, after affording opportunity of hearing to parties

Reference was allowed accordingly.

Criminal breach of trust by public servant, communication with foreign agents to be evidence of commission of certain offences

Appreciation of evidence

Benefit of doubt

Recovery proceedings

Presumption of tampering

Accused was charged for communicating secret information to a foreign diplomat/agent, prejudicial to the safety and security of the State

Record showed that no mobile number was taken into possession from the accused

Recovery memo did not mention whether the articles were sealed or marked with any official seal or insignia

Non-sealing of the recovered items undermines sanctity of the entire recovery process because the adverse presumption of tampering gets attached to the recovery

Purpose behind immediate sealing was to avoid evidence contamination or tampering with the evidence

Such major defect was fatal for the recovery proceedings and same could not be relied upon

Appeal against conviction was allowed, in circumstances.

Petitioner sought a direction to the respondent to decide its pending appeal and, in the meanwhile, restrain the department from initiating recovery proceedings

Validity

There should be an adjudication of the grievance by an independent tribunal

An assessee is entitled to adjudication in respect of its disputed tax liabilities by at least one independent forum outside the hierarchy of the respondent department

Constitutional petition was disposed of with a direction to the respondent to hear and decide the appeal within a period of sixty days, and until then, no coercive measures were to be adopted against the petitioner by the department.

Prime object of S. 103, Cr.P.C., is to ensure transparency and fairness on the part of police during course of recovery, curb false implication and minimize the scope of foisting of fake recovery upon accused.

Investigating officer failed to offer any plausible explanation to justify non-associating private witnesses with recovery of unlicensed weapons from the house of one accused

Prosecution failed to prove charge of murder against accused persons and they were acquitted by High Court in said case

High Court set aside conviction and sentence awarded to accused persons as prosecution failed to prove its case against accused persons beyond reasonable doubt

Appeal was allowed in circumstances.

Trial Court on the basis of investigation conducted by Pakistan Coat Guards convicted and sentenced the accused for imprisonment for life

Validity

Complainant did to give any explanation that why he did not request any official of Highway patrol to become witness to search and arrest of accused

Prosecution for protection of S.25 of Control of Narcotic Substances Act, 1997, was to give justified reasons, otherwise non-compliance of S.103, Cr.P.C. was fatal

Failure of prosecution to gather otherwise available independent witnesses created serious doubts in their case against accused

Inquiry was faulty and there was lack of corroborative evidence to connect accused with Charas allegedly recovered from truck

In presence of non-obstante clause in S.76 of Control of Narcotic Substances Act, 1997, anything done or purportedly to have been done by Pakistan Coast Guards in the name of powers already available to them under Pakistan Coast Guards Act, 1973, while performing functions under S.21(1) of Control of Narcotic Substances Act, 1997, was in excess of powers under notification S.R.O. No. 787(I)/2004, dated 16-09-2004

High Court directed the authorities to ensure that illegality committed by Pakistan Coast Guards in prosecution of cases under Control of Narcotic Substances Act, 1997, should be stopped forthwith

High Court further directed that investigations and prosecutions of all pending cases registered by Pakistan Coast Guards in exercise of powers and functions under S. 21(1) of Control of Narcotic Substances Act, 1997, should be assumed/transferred to other agencies authorized to deal with menace of narcotics and its trafficking strictly in accordance with the provisions of Control of Narcotic Substances Act, 1997

High Court set aside conviction and sentence awarded to accused and acquitted him of the charge

Appeal was allowed in circumstances.

Prosecution case was that the Anti Narcotics Force on spy information, apprehended the accused persons while they were driving together in the car and as a result of the search thereof secured out of its trunk three nylon bags full of 50 packets of two slabs of charas of 1 Kg. each, thus totalling 150 Kgs

850 kgs. narcotics of like nature was recovered, on search of the house of the co-accused, thus second FIR was lodged

Record showed that there was no delay in sending the chemical report for analysis which turned out to be positive

Recovered narcotics were kept in safe custody from the time of their recovery to the time when they were taken for chemical analysis

No suggestion of tampering with the same had even been made

Narcotics were sealed on the spot, remained sealed in the malkhana before being transported to the Chemical Examiner and reached the Chemical Examiner in a sealed condition as per the chemical report

Circumstances established that the prosecution had proved its case beyond a reasonable doubt against the accused

Revision was allowed and sentence of accused was enhanced to imprisonment of life.

Meaning thereby that all the process, including the recovery of stocks and record etc. so also sealing of the godowns and preparation of mashirnamas, was done even before the registration of FIR, which was admittedly lodged on 02.07.1995

Such conduct on the part of Investigation Agency was not appreciated and such practice would vitiate entire proceedings

Admittedly, along with the present accused other persons were also nominated as accused in the case but only the accused had been charge-sheeted and arrested and none else had been arrested and produced before the Trial Court to face the trial

Said fact was also contrary to the principle of consistency and equivalence

Appeal against conviction was allowed, in circumstances.

Provision of S.103, Cr.P.C. enjoins officer or other person, who wants to make search of a place, to call upon before making the search, two or more respectable inhabitants of the locality to attend and witness the search

Purpose of the same is to prevent chicaneries of police.

Accused was arrested while sitting in rear seat of Vehicle from which 10 sacks of raw Charas weighing 250 kilograms was allegedly recovered but driver had escaped

Recovery proceedings were not carried out at spot rather all proceedings were carried out in Levies station

Non-sealing of samples soon after its recovery at spot had created serious doubt in case of prosecution and no implicit reliance could be placed on chemical examiner's report hence case of prosecution was highly doubtful

Incharge of vehicle was always considered to be driver of vehicle and he was held responsible for recovery of any sort of article from said vehicle

Whatever articles lie in such vehicle would be under his (Driver's) control and possession and more knowledge and awareness would be attributed to incharge of vehicle

Mere presence of accused in vehicle neither established his ownership in respect of vehicle nor he could be held responsible for recovery of contraband from same

Prosecution failed to establish nexus of accused with such vehicle and since no nexus of accused with alleged vehicle had been established by prosecution, accused could not be held responsible for recovery of any contraband from such vehicle

Receipt of samples after 45 days vanished evidentiary value of Forensic Science Laboratory report

Otherwise investigating officer failed to tender any plausible explanation for delay in sending samples for analysis

High Court set aside conviction and sentence awarded to accused by Trial Court as same had suffered from misreading and mis-appreciation of evidence and acquitted him of charge

Appeal was allowed in circumstances.

Neither weight was taken on spot of contraband substance allegedly recovered from accused persons nor any mention was made in recovery memo that in whose custody said packets of Charas remained from time of recovery till preparation of recovery memo

Investigating officer chalked out FIR with delay of 8 hours and 30 minutes

Prosecution failed to prove safe custody of narcotic substances got recovered from accused persons

Parcels of recovered Charas were not kept in safe custody and claim of prosecution that parcels of recovered Charas were not tampered with was doubtful

Patent infirmity was noticed in reports which was found to be fatal to case of prosecution

High Court declined to uphold and sustain judgment of conviction and sentence against accused persons passed by Trial Court

Accused persons deserved to be given benefit of doubt and findings in such regard were required to be set aside

Prosecution was not able to prove its case beyond all reasonable doubts against accused persons for offence under S.9(c) of Control of Narcotic Substances Act, 1997

High Court set aside conviction and sentence awarded to accused persons by Trial Court and acquitted them of charge

Appeal was allowed in circumstances.

Prime object of S.103, Cr.P.C. is to ensure transparency and fairness on the part of police during the course of recovery, curb false implication and minimize scope of foisting of fake recovery upon accused.

On spy information police allegedly recovered an unlicensed pistol from the possession of accused at a thickly populated area

No plausible explanation was given by prosecution for not associating any witness from public though easily available

No proof was available to the effect that any efforts were made to persuade anybody from locality to act as witness of recovery

Such was a flagrant violation of S.103 Cr.P.C.

Order of acquittal could only be interfered with if the same was found on face to be capricious, perverse, arbitrary in nature or based on misreading, non-appraisal of evidence or was artificial, arbitrary and led to gross miscarriage of justice

Mere disregard of technicalities in a criminal trial without resulting injustice was not enough for interference

Order/judgment of acquittal had given rise to strong presumption of innocence rather double presumption of innocence was attached to such an order

High Court declined to interfere in the order of acquittal passed by Trial Court as the same was based on sound reasons

Appeal was dismissed in circumstances.

In order to ensure proper investigation and clear proof, preference was to be given to witnesses of locality, particularly the witnesses who are respectable

Where witnesses are not of the locality, Court could cautiously examine their statement.

Prosecution witnesses allowing the assailant to cause death of their near and dear relative by infliction of injuries was significant

If two witnesses were present at the place of occurrence, they would have definitely intervened and prevented assailants from murdering their loved one

Deceased was at mercy of assailant and no one was there to save him at odd hours of night and such behavior on part of witnesses ran counter to natural human conduct and behaviour

Provision of Art. 129, Qanun-e-Shahadat, 1984, allowed court to presume existence of any fact which it had thought likely to have happened in common course of natural events and human conduct in relation to facts of a particular case

'Chhurri' (weapon of offence) was recovered from a house situated in another Mohalla and no independent witness of that locality was called upon to attend and witness the recovery proceedings; at the time of recovery of 'chhurri' prosecution witnesses did not know as to where owner of that house was

Prosecution had failed to prove exclusive possession of accused over recovered weapon of offence ('chhurri') and such fact in no manner corroborated case of complainant

Recovery proceedings were conducted in violation of S. 103, Cr.P.C. and were hit by exclusionary rule of evidence and could not be considered

High Court having disbelieved the ocular account, evidence of recovery had no consequence

Conviction and sentence of accused awarded by Trial Court was set aside and he was acquitted of the charge

Appeal was allowed in circumstances.

No private witness had been associated at the time of alleged recovery despite of the fact that many people were present at the place of recovery

Said act of prosecution was violation of mandatory provision of law, which could not be waived in the absence of any valid or convincing reason

Such circumstances created doubt about the veracity of prosecution story, benefit of which would be extended in favour of accused

Accused was acquitted in circumstances.

Accused was a police officer and plea raised by him was that recovery was violative of provisions of S. 21(2) of Control of Narcotic Substances Act, 1997

Validity

Recovery of huge quantity of narcotics was effected from office of accused

In absence of accused, his office was found locked that indicated his exclusive control over the same and availability of case property inside a locked box lying there led to a tentative inference about conscious possession of accused

Accused himself was a police official and his false implication in absence of strong animosity could not be normally expected and same was not borne out of any requirement

Alleged raid was conducted in night hours and provisions of S. 21(2) of Control of Narcotic Substances Act, 1997 in such peculiar circumstances could not be strictly pressed

Such grounds could not be taken into consideration, at bail stage for doing so would amount to a deeper appreciation of material

As a result of entry into office of accused, huge quantity of narcotics was recovered and except narcotics, nothing there was seized to even prima facie attract provisions of S. 26 of Control of Narcotic Substances Act, 1997

Bail was declined in circumstances.

When the police officer was to charge a person for an offence, carrying punishment in shape of detention, it was incumbent upon the police officer to associate independent person for witnessing the recovery proceedings

Police had failed to do so

Case of accused was of further inquiry

Bail was allowed in circumstances.

Prime object of S.103, Cr.P.C., was to ensure the transparency and fairness on the part of Police during the course of recovery, and to curb the false implication and minimize the scope of foisting of fake recovery upon the accused

In the present case, the place of incident was a thickly populated area but the complainant (Police Official) neither associated any public person to act as mashir of recovery in order to maintain transparency of alleged recovery nor any such effort was made by the complainant.

Prime object of S. 103, Cr.P.C. is to ensure transparency and fairness on the part of police during the course of recovery, curb false implication and minimize scope of foisting of fake recovery upon accused.

Accused was convicted and sentenced for imprisonment for keeping in his possession one unlicensed rifle .303 bore, one TT pistol .22 bore, a bandoleer containing 15 live cartridges and one handgrenade

Validity

Serious doubts existed regarding preparation of recovery itself

In case of on-spot recovery, statements of recovery witnesses had to be recorded soon thereafter at the spot but witness of recovery admitted that his statement was recorded in police station and he was not present at the time of recovery

Entire proceedings were doubtful as raid was conducted on the basis of secret information and no independent respectable person of that locality was joined in recovery proceedings

Prosecution not only failed to prove alleged recovery of explosive material and arms and ammunitions from the possession of accused but also failed to prove the case without any shadow of doubt

High Court set aside conviction and sentence passed by Trial Court and acquitted accused of the charge

Appeal was allowed in circumstances.

Operation and applicability of S.103, Cr.P.C. in respect of all kinds of searches, purportedly done and effected under special law, had been excluded under S.25 of Control of Narcotic Substances Act, 1997.

Charas weighing 20 kilogram was recovered from truck being driven by accused and he was sentenced to imprisonment for life

Plea raised by accused was that during recovery proceedings, no witness from public was associated and only police officials were witnesses

Validity

Non-compliance of S.103, Cr.P.C. could not be considered as strong ground for holding that trial of accused was bad in the eye of law

Police officials were competent witnesses and their statement could not be discarded merely for the reason that they belonged to police department

Accused was involved in the offence and conclusion drawn and reasons advanced by Trial Court showed fair evaluation of evidence which was in accordance with settled principles of criminal justice

High Court did not find any illegality or infirmity in judgment warranting interference, and sentence was maintained

Appeal was dismissed in circumstances.

Customs authorities sought recovery of outstanding duty and taxes against company (petitioner) and as a consequence issued Warrant of attachment

Appellate Tribunal declined to grant stay against demand made by customs authorities and directed company to deposit outstanding amount within 15 days in shape of bank guarantee

Company instead of complying with directions of Appellate Tribunal, challenged recovery proceedings before the High Court through constitutional petition, which was disposed of with consent of both the parties and company was directed to submit a bank guarantee to the extent of 50% of demand made by authorities

Company did not comply with said directions of High Court and filed another constitutional petition seeking refund or adjustment of alleged sale proceeds in respect of its goods auctioned by customs authorities

Company filed present constitutional petition whereby not only warrant of attachment issued by customs authorities was impugned but a declaration was also sought to the effect that company was entitled to the alleged sale proceeds of its goods auctioned by customs authorities

Company had filed present constitutional petition in total disregard of directions of Appellate Tribunal and that of High Court, with an aim not to make any payment towards its admitted outstanding tax liability

Such conduct of company, besides being dubious, was also contemptuous in nature, which disentitled it from seeking any discretionary relief from the High Court in its constitutional jurisdiction

Company was unable to show as to how impugned recovery proceedings were illegal, particularly in absence of any stay by a competent forum and in view of consent order of High Court

Constitutional petition was dismissed accordingly.