Saturday, November 21, 2009

Theft Case Law

PLJ 2009 Cr.C 328
Present to: Kazim Ali Malik and Saif-ur-Rehman
EJAZ and 6 others VersusSTATE and another
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 281, 285, 291, 293 & 427--Anti-Terrorism Act, 1997, S. 7--Maintenance of Public Order--S. 16--Bail, admitted--Directly approached High Court for bail--Bail was refused to entertain for want of jurisdiction--Bailable provision of law--Mens rea is essence of each and every offence--Prima facie, missing--Held: Intention of the prosecution was not to spread panic or to disrupt communication system or to overawe Police Force--Incidents of theft in the area tempted the petitioners and co-accused to lodge protest in order to convey their annoyance to superior officers of local police--Allegation of terrorism against the petitioners was open to further inquiry and serious doubt--Petitioners were behind the bars and were no more required for investigation--Bail was admitted.
Judgement Result: Petition allowed.
PLJ 2009 FSC 7
Present to: Syed Afzal Haider
SAEED alias GULDANG and others VersusSTATE etc.
----S. 17(3)--Pakistan Penal Code, (XLV of 1860), S. 392--Conviction & sentence--Challenge to--Appreciation of evidence--No finding of trial Court on the basic ingredient of robbery--Complainant neither in his statement before the police at the time or recording the crime report nor even at the time or deposing before trial either alleged element of restrain, fear of death or even instant hurt against the appellants--Element of theft itself being doubtful and the element of force or restrain or fear of injury not available on record--Held: Whereby appellants were convicted for the offence of robbery--Prosecution story does not appear to be consistent and convincing--In order to bring home the guilt to the accused the prosecution must establish the case beyond all reasonable doubts--Further held: Freedom of a citizen cannot be jeopardized on conjectures an surmises--Pushing people behind the bars also means deprivation of the means of livelihood--Right of movement, the right to earn and the conjugal rights can be suspended only on solid grounds--There are certainly doubts in the instant case and extending benefit of doubts to the appellant.
Judgement Result: Accused acquitted.
PLJ 2009 Lahore High Court 669
Present to: Pervaiz Inayat Malik
----Art. 199--Pakistan Penal Code, (XLV of 1860)--Ss. 411 & 109--Forest Act, 1927, Ss. 62 & 68--Constitutional petition--Quashing of FIR--Allegation--Caused loss to state exchequer by stealing woods from the forest--Effected compromise--Validity--Once the forest department having agreed to compound the case subject to petitioner's payment of penalty imposed upon him the offence if any relating to theft of wood stood sorted out and settled according to rules and regulations of department--Further prosecution of the petitioner in respect of same offence u/S. 379, PPC is an attempt to vex the petitioner twice for the same offence--Held: In respect of the same offence is unreasonable, mala fide and amounts to punishing the petitioner twice for the same offence--FIR was quashed.
Judgement Result: Petition disposed of.
PLJ 2009 FSC 17
Present to: Haziqul Khairi, CJ, Dr. Fida Muhammad Khan & Salahuddin Mirza
----Ss. 17(4) & 7(a)--Pakistan Penal Code, (XLV of 1860), Ss. 302/34, 392 & 412--Criminal Procedure Code, (V of 1898), S. 164--Conviction and sentence--Challenge to--Mitigating circumstances--Confession--Requirements of--At no stage charge was amended nor altered charge was read over to appellant nor was he given opportunity to defend himself which is a grave illegality as admittedly altered charge entails graver punishment--Appellant was charged and made confession--He did not "plead guilty of commission of theft liable to Hadd" yet he was convicted u/S. 17(4)--Held: An admission simplicitor whereas requirements of judicial confession are mandatory in nature failure where of will render confession invalid--Confession strictly scrutinized on touchstone of established judicial principles--Conviction of appellant u/S. 17(4) of Ordinance 1979, on basis of confession u/S. 164 Cr.P.C. is patently erroneous, without jurisdiction and of no legal effect--Further held: By superior Courts that where admission of guilt is only basis of conviction, statement of accused should be accepted in its entirely and believing it to be true, Court would examine that what offence has been made out against accused--Confession of appellant was truthful and honest and without ambiguity and was free from coercion or inducement and as confession accepted in its entirety--Because of mitigating circumstances, set aside impugned judgment but appellant convicted u/S. 319 PPC--Order accordingly.
Judgement Result: Order accordingly
PLJ 2008 FSC 27
Present to: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan, Salahuddin Mirza & Muhammad Zafar Yasin
GHULAM NABI & 2 others VersusSTATE
----S. 7--Proof of theft--Bank robbery--Evidence of fictitious person--Credibility of eye-witnesses--Violation of the requirements of Tazkiya-al-Shuhood--Truthfulness of witnesses and abstinence from major sins--Held: Three conditions have to be fulfilled for proof of theft liable to hadd, namely (i) there shall be an inquiry by the trial Court as to the credibility of at least two male eye-witnesses, (ii) the credibility of eye-witnesses shall be determined on the basis of their truthfulness and abstinence from major sins, (iii) the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of eye-witnesses are recorded--Held: Victim of the theft was a bank which was a fictitious person/entity and was not a natural person--Being a fictitious person it cannot adduce evidence of the theft personally but only through its agent or representative--Contentions--Firstly, evidence of bank employees is inadmissible under Sharia, Secondary, fictitious legal entitles of statutory/corporate bodies were not in existence in the days of The Holy Prophet (P.B.U.H.) and the relationship of master and servant existed only between natural persons--If such arguments is accepted then all the dacoits and robbers shall have free hand to commit dacoity and robbery of Banks without any fear and in due course there shall not be any bank at all--Qanun-e-Shahadat Order, 1984 does not recognize any such exception--According to Qanun-e-Shahadat all persons are competent to testify unless otherwise specifically debarred--There is nothing therein imposing any legal disability on the employee or servant of any one including a fictitious person to testify under Sharia law in a matter concerning his employer--Additional Sessions Judge conducted the inquiry was nothing but a mockery--To him PW-1, who on certain occasions tells lies is a credible as PW-2 who never tells lies--Again PW-3 who never offers prayers at all is a good as PW-1 who offers prayers regularly--This superfluous and summary inquiry was held was in clear violation of the requirements of Tazkiya-ul-Shuhood u/S. 7 of the Ordinance--Held: Prosecution had been fully able to establish its case of robbery against the appellants against whom there was irrebutable evidence falling under Tazir laws whereby the Bank was robbed--Appellants conviction set aside, they shall stand convicted u/S. 394 PPC (Tazir)--Order accordingly.
Judgement Result: Order accordingly
PLJ 2008 Cr.C 1057
Present to: Hasnat Ahmad Khan & M.A. Zafar
----S. 302(b)--Qanun-e-Shahadat Order, (10 of 1984), Art. 133(1)--Conviction and sentence recorded against the accused by trial Court--Challenge to--Mitigating and extenuating circumstances--Appreciation of evidence--Held: Non cross-examination on prosecution witness by the accused--Cross examination can only be conducted if the accused so desires but in this case the accused did not show his desire to cross-examine the said doctor at any stage--There was no deep rooted enmity between the parties--Admittedly, during the days of occurrence the appellant was performing the duties of gunman--The deceased, who belonged to a well to do family, according to the prosecution version had a squabble with the appellant a few days before the occurrence over the allegation of a theft--Due to the said allegation both of them had abused each other--According to prosecution's version that the appellant was publically insulted by the deceased who levelled allegation of theft against the appellant--The appellant did not repeat the fire at the deceased this fact along creates a mitigating circumstance in favour of the appellant--Further held: Appeal disposed of on merits, instead of remanding the case to the trial Court, after a period of seven years of the occurrence--Conviction maintained.
Judgement Result: Order accordingly
PLJ 2008 Cr.C 564
Present to: Tariq Shamim
----S. 497(2)--Emigration Ordinance, 1979, S. 22 & 18--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 411 & 109--Bail--Granted--Further Inquiry--Allegation of visa stickers stolen--Held: No evidence on record to even remotely suggest that the petitioner had played any part or role in he theft of the visa stickers stolen en-route from U.K. to the British Embassy in Moscow--Similarly, no evidence on record that petitioner had forged or fabricated visa stickers--No instrument or article which can be used for the purpose of forgery was recovered from the petitioner--Merely being in possession of documents purportedly forged in no offence unless it can be shown that the same had been used as genuine--There was no evidence on record to show that the passports with forged or stolen visa stickers had been used--Held: Evidence available on record was scant and not sufficient to connect the petitioner with the commission of the said offence--Case of Petitioner was one of further inquiry calling for further probe into his guilty--Petition allowed, bail granted.
Judgement Result: Bail admited

1 comment:

  1. fia dogs are making fake cases against innocent people, i know and have suffered the high headedness of the corrupt fia personnel especially in this case the then deputy director of fia Azhar mehmood who applied for immigration through the firm of mr. majid ali abbasi, newlife consultants for him self and his elder brother and upon refusal of the visas turned up and became personal against the company and not only extorted money to the tune of over 2 million rupees as bribe but also made many many cases against the person of the ceo mr. majid who was not only innocent but one of the best consultants of lahore. shame on such corrupt and selfserving bearucrats ... the chief justice of pakistan should take a note of this case and fix people like azhar mehmood as mr. majids written complaints to FIA are a matter of record and were brushed aside by his department brothers in crime.