2012-14 G B L R 1
[Supreme Appellate Court]
Before Muhammad Nawaz Abbasi, C.J. and Syed Jaffar Shah, J
GHULAM MUHAMMAD---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 13 of 2010, heard on 12th May, 2011.
(a) Criminal Procedure Code (V of 1898)---
----S. 342--- Examination of accused--- Principles--- Fundamental principle of criminal administration of justice was that statement of an accused under S.342, Cr.P.C., containing admission/confession of guilt, was to be accepted or rejected as a whole; and court was not supposed to exclude the exculpatory portion of statement from consideration and rely only on inculpatory portion of statement---Court had to consider the whole statement and decide the fact of case accordingly---Said rule was based on the principle that prosecution must stand on its own legs; and conviction, if was based solely on the statement of accused under S.342, Cr.P.C. it was to be accepted as a whole---Said principle was subject to certain exceptions, and could not have mandatory force in the normal circumstances in the case wherein the version was introduced in the statement under S.342, Cr.P.C.---Confession for the purpose of conviction must be independent to the defence version---Admission of occurrence containing defence version, neither could be treated as confession, nor a sole evidence of guilt, rather, such admission could at the most, was relevant for the purpose of corroboration and could not be used as an independent evidence of guilt.
(b) Penal Code (XLV of 1860)---
----Ss. 302(b) & 302(c)---Criminal Procedure Code (V of 1898), S.342---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 60--- Qatl-i-amd--- Reappraisal of evidence---Sentence, reduction in---Defence version introduced in the statement under S. 342, Cr.P.C., was not supported by any evidence, oral or circumstantial and was not spelt out from the prosecution evidence---No presumption of aggression of deceased could be raised on the basis of mere assertion in the defence version---In absence of any direct evidence as to in what manner the occurrence took place and how the deceased sustained fire-arm injury on his person, presumption would be that accused was responsible for the unnatural death of deceased--- Medical evidence, by itself would not suggest that the injury was caused to the deceased during the course of scuffling, rather, in the prevailing situation, the presumption would be that accused having pistol in his possession, committed act of aggression---Rule of acceptance or rejection of statement of accused under S.342, Cr.P.C., as a whole, was not attracted in the peculiar circumstances of the case---To use a portion of statement of accused containing his admission of occurrence in confirmation of his guilt with exclusion of remaining portion containing the defence plea was not permissible in law---Admission of accused at the maximum could be used for the purpose of corroboration---No plausibility in the defence version being available, same was excluded from consideration---Witnesses of last seen, were quite natural and independent---Evidence of last seen with the evidence of recovery of pistol, which was used as weapon of offence, and recovery of an empty with live bullets from the vehicle, coupled with medical evidence and attending circumstances, would be independently sufficient to prove the guilt of accused beyond any doubt---Plea of accidental death as a result of resistance of accused to the aggression of deceased was not convincing---Circumstances leading to the occurrence, clearly suggested that something suddenly happened between accused and deceased---Accused had ample opportunity to post the deceased out of the vehicle at a deserted place in the dark, but he preferred to rush to hospital to save the life of deceased---Such conduct of accused, was a relevant fact---Occurrence was result of sudden flare-up and it was not an intentional or a premeditated murder to bring the same within the ambit of S.302(b), P.P.C., rather it would be a case under S.302(c), P.P.C. for the purpose of punishment---Sentence of death awarded to accused by the Trial Court under S. 302(b), P.P.C., was converted into imprisonment of fifteen years under S. 302(c), P.P.C., in circumstances.
Ch. Abdul Aziz, Advocate Supreme Court of Pakistan for Appellant.
Advocate-General for the State.
Malik Haq Nawaz, Senior Advocate for the Complainant.
2012-14 G B L R 10
[Supreme Appellate Court]
Before Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ
The STATE---Petitioner
Versus
MUHAMMAD AZAM and 2 others---Respondents
Cr. P.L.A. No. 4 of 2011, heard on 25th May, 2011.
(a) Penal Code (XLV of 1860)---
----Ss. 308, 316, 319, 322 & 323---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts. 60 & 71---Qatl-i-Khata, payment of Diyat---Concept---State filed petition against order of Chief Court, whereby Chief Court had maintained the order of the Trial Court regarding payment of Diyat to the legal heirs of deceased by the State and dismissed the appeal---Respondents were tried in a case registered against them under Ss.427, 148, 149, 302 & 34, P.P.C. and having been found not guilty, were acquitted---Complainant got registered case that he along with 10 others, were proceeding in a vehicle, and having come to know about tension in the area, they were reluctant to go further, but the Magistrate on special duty, with Police Squad gave them assurance of safe crossing of the sensitive area; instructed them to follow the Police Van; and they proceeded accordingly---At some distance a group of persons armed with lethal weapons opened fire and pelted stones at the Vehicle; as a result whereof a few passengers sustained injuries, and one passenger died---Magistrate and Police Officials present at the spot remained silent spectators, and did not bother to take any action to prevent the offence and did not protect the life of passengers---Trial Court, found the case of Qatl-i-Khata, punishable under S.319, P.P.C.---Since driver of vehicle proceeded to cross the sensitive area on the instructions of the Magistrate, the Magistrate and Police Officials, who did not interfere to prevent the commission of offence, were equally found responsible for the incident; and having not taken any preventive measures, were found guilty of criminal negligence---Trial Court, directed the officials for payment of Diyat to the legal heirs of the deceased---State, without challenging the acquittal of accused officials, questioned the legality of order of payment of Diyat---Government of Pakistan and Gilgit-Baltistan, being trustees for the discharge of sovereign functions and responsible for all the affairs of the State, had legal obligation to provide protection to life and property of State subjects on the basis of State responsibility---Concept of Diyat, Arsh, and Daman in Islam was different from the law of compensation in civil, criminal and general law---Diyat was defined in S.323, P.P.C., payable by the offender to the legal heirs of deceased---Diyat was not a simple compensation, in lieu of damages, rather it was a sort of punishment, which was not only payable in the cases in which the offence was not liable to the enforcement of qisas, or qisas was not enforceable---Diyat was a compensation/blood money as specified in Injunctions of Islam; and was payable in case of qatl-i-amd, if it was not liable to qisas or qisas was not enforceable---Diyat was also payment as punishment in cases of Qatl-i-Khata or Qatl-Bis-Sabab, because those offences were not liable to qisas---In addition to the individual responsibility of offender Government in Islamic State being responsible to provide full protection to the life and property of its citizens, was directly or indirectly responsible to pay compensation for the damage caused to the life or property of a citizen in accordance with the Injunctions of Islam---Petition filed by the State against the judgment of Chief Court, was dismissed, in circumstances.
Islamic Concept of Qisas-o-Diyat; Holy Quran, Sura Al-Imran Ayat No.27; Surah 4:93 and Surah Albaqrah ref.
(b) Penal Code (XLV of 1860)---
----Ss. 295, 295-A, 295-B, 295-C, 298, 298-A, 300 & 302---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.49---Blasphemy, Sectarian hatred and difference of opinion in religious matters, qatl-i-amd---"Blasphemy"---Concept---Sectarian hatred and difference of opinion in religious matters, was not as such an offence, whereas sectarian violence or killing for difference of religious opinion, or sectarian hatred, was an offence within the ambit of "terrorism"---Imposing or spreading a religious opinion on others by force and violation, was also a crime of the nature of terrorism; and sectarian crimes accordingly could be categorized with reference to the nature of transaction---No conception of division of Muslims in different sects or religious difference existed in Islam---Killing of each other on account of difference of opinion was 'Fasad-fil-ardh', which was a serious crime, and was strongly prohibited in Islam---Use of derogatory and insultive language, showing disrespect to the sacred and Holy persons, was religious offence under the law, and in general was called 'Blasphemy'---Person by using derogatory words against the sacred and Holy persons, would commit an offence of 'Blasphemy', and were not be entitled to any concession in law; or did not deserve any leniency in the matter of punishment---Religious offences, were not compoundable---"Blasphemy" was irreverence towards God, religion, Holy persons, and things considered sacred---"Blasphemy", was malicious revilement of God, and religion, which was considered a crime---Insult of Holy Prophet (PBUH), was a most serious offence in Islam---If an act of "Blasphemy" in respect of Holy Prophet (PBUH) was committed by a Muslim by faith, he was 'Murted', and was Wajab-ul-Qatl in Islam---Insult of Holy Prophet (PBUH), was an offence under S.295-C, P.P.C., which was punishable with death or life imprisonment---Blasphemer of Holy Prophet (PBUH), was liable to the punishment of death or life imprisonment under S.295-C, P.P.C.---State in a Muslim Community was obliged to set the law at motion against the person who committed an act of "Blasphemy" of Holy Prophet (PBUH)---Islamic Injunctions on "Blasphemy" detailed by Supreme Appellate Court.
Surah Ahzab Ayat No.6 ref.
(c) Penal Code (XLV of 1860)---
----Ss. 302, 309, 310, 323 & 332---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts.3 & 60---Constitution of Pakistan, Art.9---Offences relating to human body---Compounding of offence---Security of person---In Islam, offences relating to human body, were not only against the victim, but also were against the society; and Islamic State in addition to protect the right of an individual, was responsible to protect the interest of society---Offences relating to the human body under Chapter XVI, P.P.C. were compoundable, but State Authorities or courts were not empowered to grant pardon to the offenders, or compound an offence in the cases of qatl or hurt without the intervention of legal heirs of deceased or a victim---Legal heirs of a deceased in case of qatl and a victim of hurt, had the right to grant pardon to an offender, with permission of court; and without intervention of State, with or without payment of compensation, but the court or State could not give pardon to an offender or a convict---Person, who was responsible for causing death, or bodily injury to a fellow person, in addition to the normal punishment, was also responsible for payment of compensation---Whereas in an Islamic State, in the light of concept of State responsibility of protection of life, liberty and property of its citizens, in case of failure of State machinery to maintain peace in the society, payment of compensation for the loss of life and property of people, could be direct liability of State---Responsibility of State Authorities was to enforce law and administer the affairs of State for protection of citizens---Rulers in an Islamic State being guardian of citizens were responsible for the protection of life and property of the citizens---State machinery must also provide legal aid and help in the matter of recovery of compensation in the case of loss, caused to a person as a result of criminal act of a fellow person---Victim, could have legal right to claim compensation from the Government, particularly if loss, was caused to the life or property of a person as a result of an act of State or due to the failure of State machinery to control law and order situation to maintain peace and administer criminal justice in the society; and loss caused in unforeseen circumstances to the life or property of a person as a result of natural disaster or act of God---Guarantee of life and liberty subject to law, was fundamental right of every citizen provided under Art.3 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 and Art.9 of the Constitution of Pakistan---Government, in circumstances, was liable to make payment of Diyat and compensation to the legal heirs of deceased and to victim, in hurt cases, in accordance with law. Advocate-General Gilgit-Baltistan for Petitioner.
Malik Haq Nawaz, Advocate for Respondents.
Ali Nazar, Advocate-on-Record.
2012-14 G B L R 48
[Supreme Appellate Court]
Before Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ
The STATE through Advocate-General, Gilgit-Baltistan---Petitioner
Versus
ANWAR---Respondent
Cr. P.L.A. No. 11 of 2011, heard on 19th September, 2011.
Penal Code (XLV of 1860)---
----Ss. 302(b), 300, 322 & 331---Criminal Procedure Code (V of 1898), Ss.164, 364 & 537---Qatl-i-amd, qatl-bis-sabab, payment of diyat---Confession, recording of---Appeal against acquittal---Reappraisal of evidence---Prosecution had based its case mainly on confessional statement of accused, and last seen evidence---No sanctity could be attached to confessional statement, because methodology of recording confessional statement as laid down in Ss.164 & 364, Cr.P.C., had not been adopted by the Magistrate---Magistrate had not put any question to the statement maker/accused regarding any torture by Police---Magistrate had admitted that the confessional statement of accused was recorded on oath---Accused was not assured by the Magistrate that he would not be remanded to Police lock-up, in case he would decline to make confessional statement---Non-fulfilment of such requirements, while recording confessional statement of accused, would lead to an illegality not curable under S.537, Cr.P.C., as provisions of Ss.164 & 364, Cr.P.C. were mandatory in nature---Confessional statement of accused, could not be a basis for conviction---Chief Court, therefore, had rightly ruled the same out of consideration---Some impartial and disinterested witnesses had deposed before the Trial Court that they had seen the deceased and accused, while proceeding to mountain, wherefrom the dead body of the deceased was recovered---Said piece of evidence was believable, but it could not be sufficient for awarding major penalty as provided under S.302(b), P.P.C., in absence of other corroborative evidence i.e. medical or other---Possibility, could not be ruled out that accused took the deceased to the mountain, and left her over there; and deceased being a woman folk could not ascend from there and became prey of wild beast, or due to some other descend she lost her life---Taking the deceased to a mountain and leaving her there, was the cause of death of deceased within the mischief of Qatl-bis-Sabab as defined in S.321, P.P.C.---Accused was convicted under S.322, P.P.C. for committing Qatl-bis-Sabab, which provided payment of Diyat---Order accordingly. [pp. 51, 52, 53] A, B & C
Advocate-General, Gilgit-Baltistan for Petitioner.
Shoukat Ali, Senior Advocate for Respondent/Accused.
2012-14 G B L R 54
[Supreme Appellate Court]
Before Muhammad Nawaz Abbasi, C.J., Syed Jaffar Shah and Muhammad Yaqoob, JJ
IKHLAQ HUSSAIN, ASSISTANT ENGINEER, 18-MW HYDRO POWER PROJECT NALTAR GILGIT---Petitioner
Versus
MUHAMMAD HASSAN, SUB-ENGINEER and 7 others---Respondents
C.P.L.A. No. 27 of 2011, heard on 12th October, 2011.
Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---
----Arts. 81 & 71---Civil service---Appointment---Chief Court, while accepting the writ petition of respondents declared the appointment of the petitioner as void and without lawful authority and also directed the department to fill up the vacant post of Assistant Engineer afresh---Petitioner, who was B.Sc. (Engineering), initially was appointed as a Sub-Engineer on work charge basis at a fixed pay of Rs.3500 per month for a period of six months, later on, he was adjusted against vacant post as an Assistant Engineer in BPS-16 on regular basis on creation of regular post of Assistant Engineer---Respondents, who were diploma holders, were appointed as Sub-Engineers in BPS-11, being aggrieved with direct appointment of the petitioner against vacant post of Assistant Engineer filed writ petition before the Chief Court which was accepted, and Chief Court declared the appointment of the petitioner as illegal and against the relevant service rules---Method of appointment for the post of Assistant Engineer, BPS-16, under Rules framed by Ministry of Kashmir Affairs and Northern Areas, was by 100% promotion from amongst the Sub-Engineers BPS-11, along with 5 years experience in the relevant field and for filling up a post meant for promotion or selection, no advertisement was required---Recommendations of Departmental Promotion or Selection Committee, were to be considered for promotion of eligible incumbent---Respondents, without seeking redressal of their grievance from the proper forum, directly invoked the writ jurisdiction of Chief Court, which allowed the writ and granted the relief as prayed for by the respondents---Validity---Writ jurisdiction was an extraordinary jurisdiction which could be exercised in special circumstances, where no other remedy was available to the petitioner, otherwise the court could decline to press into service its writ jurisdiction---Respondents, in the present case, without availing the opportunity to approach the concerned authorities/forums had voiced their grievance through writ jurisdiction of the Chief Court---Chief Court, in circumstances, ought to have dismissed the writ petition being not maintainable---Appeal was allowed and impugned judgment was set aside, in circumstances.
Muhammad Isa, Senior Advocate for Petitioner along with Muhammad Abbas, Advocate-on-Record.
Malik Shafqat Wali and Shoukat Ali, Senior Advocates for Respondents Nos.1 to 3.
Advocate-General, Gilgit-Baltistan for Respondents Nos.4 to 8.
2012-14 G B L R 59
[Supreme Appellate Court]
Before Syed Jaffar Shah and Muhammad Yaqoob Khan, JJ
HAYAT KHAN---Petitioner
Versus
The STATE and 2 others---Respondents
Criminal P.L.A. No. 1 of 2012 (Criminal Transfer Petition), heard on 22nd May, 2012.
Criminal Procedure Code (V of 1898)---
----S. 526---Transfer of case---Principles---Main ground for transfer of case, was that due to friendly terms of relative of accused with the Sessions Judge concerned, there was a reasonable apprehension that Trial Court would not act fairly and impartially---Said ground for transfer of case was not sufficient---Transfer of case could not be claimed as a matter of routine, and at the wishes of any litigant, unless it was apparent on the face of record that party seeking transfer of the case, could not get fair and just treatment at the hands of Judge from whose court the transfer of the case was sought---Applicant seeking transfer of case, should seek transfer of case with cogent and plausible reasons---Self-procured mistrust and expression of having no trust, or losing confidence in the court, merely based on general and vague allegations, was hardly sufficient to invoke the jurisdiction of the court under S.526, Cr.P.C.---Petitioner having not been able to point out any justification for interference of Supreme Appellate Court in the impugned order passed by Chief Court, whereby application for transfer of case was dismissed.
Johar Ali for Petitioner.
2012-14 G B L R 61
[Supreme Appellate Court]
Before Raja Jalal-ud-Din and Muzaffar Ali, JJ
FAREED ALAM and 2 others---Petitioners
Versus
The STATE---Respondent
Criminal Miscellaneous No.2 of 2012 in Criminal Appeal No.5 of 2011, decided on 7th March, 2013.
Penal Code (XLV of 1860)---
----Ss. 302, 34, 109 & 114---Anti-Terrorism Act (XXVII of 1997), Ss.6 & 7---Pakistan Arms Ordinance (XX of 1965), S. 13---Criminal Procedure Code (V of 1898), S. 345---Qatl-i-amd, common intention, abetment, act of terrorism, possessing unlicensed arms---Reappraisal of evidence---Compromise---Complainant moved application seeking permission for compounding the offence and release of accused persons on the ground of "compromise"---Chief Court sought the report regarding the genuineness of compromise effected between the parties---Trial Court, complied with the order of the Chief Court and submitted the report---Statements of the Jirgah members, along with statements of the legal heirs of the deceased, verified the genuineness of the compromise, and submitted that they had no objection, if accused persons, were released from the judicial lock-up on the basis of the compromise, effected between the parties---Jirgah members, present in the court also assured that they were confident that compromise between the parties was genuine, and would be long lasting, and also peace and tranquility would prevail in the area---Present was a good case for compounding the matter---Accused persons, were ordered to be released from the judicial lock-up and were acquitted from the charges.
2012-14 G B L R 63
[Supreme Appellate Court]
Before Raja Jalal-ud-Din and Muzaffar Ali, JJ
GHULAB KHAN---Petitioner
Versus
SAEED KHAN and another---Respondents
C.P.L.A. No. 15 of 2012, decided on 22nd April, 2013.
Civil Procedure Code (V of 1908)---
----O. VI, R. 17 & S. 151---Gilgit-Baltistan Pre-emption Act (VII of 2010), S. 5---Oaths Act (X of 1873), S. 6---Pre-emption suit---Amendment of pleadings---Scope---Trial Court dismissed suit on merits, but Appellate Court below decreed the same---Appellant/Vendee challenged decree granted by Appellate Court below in favour of pre-emptor by filing revision before Chief Court---Pending disposal of said revision, vendee/appellant submitted an application under O.VI, R.17, C.P.C., read with S.151, C.P.C. for amendment of the joint written statement---Chief Court refused to allow the amendment---Validity---Pleadings submitted by both the parties to the suit had been verified on oath---Chief Court had properly refused to exercise jurisdiction in refusing the amendment of pleadings, as the amendment was meant to establish absolutely a new case of defence totally inconsistent to the admission made in the written statement on oath---Written statement had been submitted jointly by both the defendants and had admitted the subject matter to be ancestral property which was held by respondent/vendor as his share, but respondent did not join the new plea made by the appellant/vendee through the application for amendment of pleadings---Revision petition, sub judice before the Chief Court was directed to be decided on merits. [
Ali Nazar, Advocate-on-Record.
2012-14 G B L R 66
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ
Mst. ZAIB-UL NISAH---Petitioner
Versus
SAFI ULLAH BAIG---Respondent
C.P.L.A. No. 19 of 2012, heard on 24th April, 2013.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----Ss. 13 & 15---Application for ejectment of tenant---Dismissal of application---Ejectment application was concurrently dismissed by the
Rent Controller, Appellate Authority and by the Chief Court---Counsel for petitioner/tenant, had submitted that he on the instruction of the tenant, would not press petition any further, if the petitioner/tenant was given five months time to vacate the shop in question---Respondent/landlord, in attendance, agreed to give five months' time for vacation of the shop---In view of agreement between the parties, and the statement at Bar of the Counsel for the petitioner, shop would be vacated within five months as agreed upon---Petitioner/tenant was directed to vacate the shop within the stipulated time agreed between the parties, and would hand over the vacant possession of the shop to the respondent/landlord, without any hesitation---Order accordingly.
Ali Dad Khan, Advocate for Petitioner.
Farooq Ahmed, Advocate for Respondent on Special Permission.
Petitioner in person.
Respondent in person.
2012-14 G B L R 69
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Muzaffar Ali, J
SAEED HUSSAIN---Petitioner
Versus
The STATE through Police Station City Gilgit---Respondent
Criminal Miscellaneous No.6 of 2011, heard on 24th April, 2013.
Criminal Procedure Code (V of 1898)---
----S. 497(1)(5)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Arts. 60(13) & 71---Bail, grant/cancellation of---Trial Court accepted bail application of co-accused on the ground of his minority whereas, bail application of accused was dismissed---Being aggrieved and dissatisfied with order of the Trial Court, accused filed bail application before the Chief Court--- Chief Court dismissed said application, and observed that co-accused who was caught at the spot was granted bail without adhereing to the legal provisions---State did not move any application for cancellation of bail to the co-accused by Trial Court---No notice for cancellation of bail to co-accused was issued---Accused filed petition for leave to appeal against order of Chief Court---Supreme Appellate Court dismissed the petition and issued notice to co-accused, to the effect that as to why bail already allowed to him by the Trial Court was not recalled---Trial was in progress, evidence of the prosecution witnesses had almost been recorded by the Trial Court---Accused was to be examined under S.342, Cr.P.C. and the trial was likely to be concluded very soon---Supreme Appellate Court observed that no further action was left to be taken; notice already issued by Supreme Appellate Court, stood discharged and petition was disposed of accordingly.
Advocate-General for the State.
Moin Haider Accused.
2012-14 G B L R 72
[Supreme Appellate Court]
Before Raja Jalal-ud-Din and Muzaffar Ali, JJ
GHULAM MUHAMMAD---Petitioner
Versus
Engineer GHULAM ABBAS and another---Respondents
Criminal Miscellaneous No.1 of 2013 in Criminal Review No.1 of 2011, heard on 10th June, 2013.
Penal Code (XLV of 1860)---
----Ss. 302(b), 309, 310 & 338-E---Criminal Procedure Code (V of 1898), S. 345--- Qatl-i-amd--- Compromise between the parties---Complainant, present in court, had verified the contents of the compromise proceedings---Complainant had no objection, if accused was acquitted from the charge, he verified that the compromise was effected in the best interest of the parties as they were closely related and co-villagers---Accused was ordered to be acquitted and released, in circumstances.
Advocate-General Gilgit-Baltistan for the State.
Haji Jamal Khan, Advocate-on-Record.
2012-14 G B L R 73
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Muzaffar Ali, J
Mst. NOSHAD---Petitioner
Versus
INCHARGE POLICE CHOWKI NOMAL GILGIT and 7 others---Respondents
Cr. P.L.A. No. 20 of 2011, heard on 1st July, 2013.
Penal Code (XLV of 1860)---
----S. 337-A---Criminal Procedure Code (V of 1898), Ss.154, 155 & 173--- Non-cognizable cases--- Investigation in cognizable/non-cognizable cases---Procedure---Statutory duty had been cast upon Police Officer Incharge of the respective Police Station under S.154, Cr.P.C. to enter the information with regard to the commission of any "cognizable offence" in a register to be kept in the Police Station---Entry of information with regard to the cognizable offence in such a register, was commonly known as FIR---Incharge of Police Station was under legal obligation, that if any information relating to the commission of a "cognizable offence", was given orally, he would reduce the same in writing, and obtain the signature of the informant thereon---If the information was in writing, signed by person who had given it, the substance of the same, would be entered into the prescribed register and, thereafter he would proceed with investigation under S.156, Cr.P.C., forthwith without obtaining prior permission from the concerned Magistrate---If the information with regard to the commission of "non-cognizable offence" was given, same would also be incorporated in another prescribed register, known as "Register Roznamcha"; and the informant generally was sent away without any action---If the Police Officer, was of the view that information, so recorded in 'Roznamcha', was required to be investigated, he would prepare an application for obtaining necessary order from the Magistrate concerned--- Police Officer, could also make an investigation, even in a "non-cognizable case", though he could not do so without an order of a Magistrate, First or Second class, having power to try such case, or commit the same for trial---Order/permission of the Magistrate, was not required at all in a case of commission of "cognizable offence"; Police Officer could himself proceed with investigation; and on the conclusion of the investigation, he would prepare a report under S.173, Cr.P.C., for onward submission to the court concerned for trial which could be called "challan" in common parlance---If the investigation was ordered by the Magistrate in a "non-cognizable offence", Police Officer, after completing the investigation in all respects, would also prepare a report under S.173, Cr.P.C., and not a private complaint---Report of Police Officer mentioned in S.190(1)(b), Cr.P.C. would include even the Police report in a non-cognizable offence---Information, in the present case, related to the commission of non-cognizable offence, officer-in-charge of the Police Station would only proceed under S.155, Cr.P.C.---Investigation in non-cognizable case could not be carried out without permission of the Magistrate---Irregularities during the course of the proceedings before the Police Officer, would only affect the value attached to the evidence, but it would not vitiate the proceedings in the trial--- Complainant, was at liberty to move to court of Magistrate with fresh criminal complaint against the respondents as there was no limitation for preferring a complaint---No substance having been found in the petition on merits, which could justify the exercise of discretion of Supreme Appellate Court for granting leave to appeal---Leave to appeal was refused.
Public Prosecutor v. Ratnavelu Chaetty AIR 1960 Mad 865 (F.B.) ref.
Advocate-General, Gilgit-Baltistan.
Munir Ahmad, Advocate for Petitioner.
Johar Ali, Advocate for Respondents.
2012-14 G B L R 81
[Supreme Appellate Court]
Before Raja Jalal-ud-Din and Muzaffar Ali, JJ
Dr. SHAHID IQBAL and another---Applicants
Versus
PUBLIC AT LARGE and another---Respondents
C.P.L.A. No. 10 of 2013, heard on 8th July, 2013.
Adoption---
----Adoption of deserted, parentless and abandoned child---Petitioners, husband and wife, who were childless, filed application seeking issuance of guardianship certificate of minor adopted from Health and Welfare Center---Request of petitioners, was turned down by the Guardian Judge and Chief Court, in view of directions laid down in judgment of Supreme Appellate Court--- Validity--- Mandatory requirements for adoption of deserted, parentless and abandoned children and their custody had been laid down by the Supreme Appellate Court in 2011 GBLR 373--- Petitioners, husband and wife, who were issueless and Muslim by faith and desirous to adopt a child, had sound financial position and had flawless background and belonged to highly respectable family of the area---Both husband and wife had dual nationality of Pakistan and United States of America---Guardian Judge had not thoroughly perused the judgment of the Supreme Appellate Court while giving his judgment---Impugned order did not disclose any specific condition of adoption (as per Supreme Appellate Court judgment) which was not fulfilled or followed by the petitioners---Guardian Judge had not appreciated the mandatory provisions, which had already been fulfilled by the petitioners---Chief Court, had not applied its judicious mind to the matter and had not given any genuine reason for dismissing appeal, and upholding the findings of the Guardian Judge---Both courts, had not given reasons for their findings, nor had passed self-explanatory judgments---Supreme Appellate Court observed that deserted, parentless child had right to be adopted by genuine adoptive parents, who could provide the facility of good up-bringing, good education and fruitful life---Any individual who could be in a good financial position to provide the facility to a child, should be encouraged instead of creating hurdles and problems or discouragement---Institutions, that take care of deserted children, would also be relieved of burden, which was being shouldered by any individual---Society would also prosper, if genuine sound individual would share the burden of providing home, shelter and education to the needy children to make them honourable member of the Society, instead of keeping as deserted soul for the whole life---Petitioner, being sound party, could give a better life as compared to that of the Institution they were living in---Petition was converted into appeal, and was allowed---Petitioners were issued a guardianship certificate with regard to parentless child adopted by them.
Amjad Hussain, Advocate for Petitioners.
Advocate-General Gilgit-Baltistan.
2012-14 G B L R 86
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ
FIDA HUSSAIN and 2 others---Petitioners
Versus
RAJA TAHIR ABBAS and 2 others---Respondents
C.P.L.A. No. 23 of 2012, heard on 20th August, 2013.
West Pakistan Urban Rent Restriction Ordinance (VI of 1959)---
----Ss. 13 & 15---Ejectment of tenants on the ground of default in payment of rent---Rent Controller, after determination of fair rent of the premises in question, directed the tenants to deposit same before 15th of each month---Tenants who failed to comply with the orders passed by the Rent Controller, rendered themselves as "wilful defaulter"---Trial Court, accepted ejectment petition by the landlords and struck off the defence of the tenants, and the landlords were ordered to be put into possession---Said ejectment order was upheld by Appellate Authority and the Chief Court---Contention of the tenants was that predecessor of the landlords, had given the tenants assurance that in case of reconstruction of the shop, tenants would never be called to pay rent at the market value; and that they would never be liable to be ejected---Validity---Any agreement which was violative of public policy, was never specifically enforceable and the clause in agreement to that extent was always voidable---Rent of the shop in question initially was fixed Rs.60 per month and the tenants wanted to feel obliged to pay the same rent after the expiry of almost 41 years' time, when the whole scenario, was absolutely changed---Concurrent findings of the courts below, being neither perverse, nor arbitrary warranted no interference.
Muhammad Ashraf v. Qamar Sultana PLD 2003 SC 228 rel.
Mir Ikhlaq Hussain, Advocate for Petitioners.
Ali Khan, Advocate for Respondents.
Rehmat Ali, Advocate-on-Record.
2012-14 G B L R 92
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ
TAJUDDIN and another---Petitioners
Versus
Mst. ZAINAB BEGUM and 2 others---Respondents
C.P.L.A. No. 57 of 2011, heard on 20th August, 2013.
Civil Procedure Code (V of 1908)---
----O. IX, R. 13, O. V, Rr. 17 & 20---Limitation Act (IX of 1908), Art.164---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and permanent injunction---Ex parte decree, setting aside of---Limitation---Defendants/petitioners having remained absent and failed to appear on any date of hearing despite proper service of summons---Ex parte decree, was passed against defendants---Application filed by the defendants under O.IX, R.13, C.P.C. for setting aside ex parte decree having rightly been dismissed by the Trial Court and Appellate Court below, defendants had filed revision petition in the Chief Court---Chief Court declined to set aside ex parte decree---Validity---Application for setting aside ex parte decree and restoration of suit, under O.IX, R.13, C.P.C. was filed after lapse of a period of about 3 years, 2 months and 22 days---Limitation for filing of appeal and application under O.IX, R.13, C.P.C., was 30 days as provided under Art.164 of Limitation Act, 1908---Substituted service was effected by publication of notice through a Daily newspaper not locally published, and not in any of the local newspapers---Application of the petitioners/defendants, being time-barred, both courts below and Chief Court had correctly dismissed application for setting aside ex parte decree---Impugned judgment/order being not suffering from any illegality, no exception could be taken by Supreme Appellate Court, in circumstances.
Muneer Ahmed, Advocate for Petitioners.
2012-14 G B L R 96
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Raja Jalal-ud-Din, J
RESIDENTS OF MUHALLAH YARKHOR MOZA THALLAY TEHSIL DAGHONI DISTRICT GHANCHE, through Representatives---Petitioners
Versus
RESIDENTS OF MUHALLAH CHUNDU MOZA THALLAY TEHSIL DAGHONI DISTRICT GHANCHE through Representatives---Respondents
C.P.L.A. No. 1 of 2013, heard on 29th August, 2013.
Specific Relief Act (I of 1877)---
----Ss. 42 & 54---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.60---Suit for declaration and permanent injunction---Trial Court dismissed suit, but Appellate Court below decreed the same---Chief Court, on appeal, accepted appeal, setting aside judgment of Appellate Court below, upheld the judgment passed by the Trial Court---Validity---Board duly constituted with free will of the parties had decided the dispute between the parties---All concerned parties along with members of the Board signed the document and matter was resolved---Written agreement between the parties was made 'Rule of the Court'---Petition for leave to appeal was disposed of as per "agreement" and the "Rule of the Court".
Wazir Wilat Ali, Advocate for Petitioners.
Ghulam Ali son of Ghulam Hussain and Muhammad Ali son of Ghulam Hussain residents of Muhallah Yarkhor Thallay (representatives of petitioners).
Muhammad Issa, Senior Advocate for Respondents.
Yousaf son of Ibrahim and Hussain son of Abdul Karim residents of Muhallah Chundu Moza Thallay (representatives of respondents).
2012-14 G B L R 98
[Supreme Appellate Court]
Before Raja Jalal-ud-Din and Muzaffar Ali, JJ
SHAKOOR---Petitioner
Versus
The STATE---Respondent
Criminal P.L.A. No. 4 of 2013, decided on 26th September, 2013.
Criminal Procedure Code (V of 1898)---
----S. 497---Penal Code (XLV of 1860), Ss. 302, 34 & 109---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 60(13)---Qatl-i-amd, common intention, abetment---Bail, refusal of---FIR, clearly disclosed the presence of the witnesses at the spot, as well as the direct nomination of accused---Accused, had been alleged to have opened the fatal fire shot at the deceased, and his role in the commission of offence was not at par with the role played by co-accused---Statement of the prosecution witnesses, as well as the recovery of other articles, had not been constructed after any fatal delay, which could raise doubts in the manner in which the occurrence had taken place---Bail was not granted, as there was a prima facie case existing against the accused.
Amjad Hussain, Advocate for Petitioner.
Advocate-General, Gilgit-Baltistan for Respondent.
2012-14 G B L R 100
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ
The WATER AND POWER DEVELOPMENT AUTHORITY (WAPDA) through Project Director---Petitioner
Versus
AHLIAN-E-SAT PARA SKARDU through Representatives and others---Respondents
C. Review No. 16 of 2011 in S.M.C. No. 12 of 2011, heard on 9th October, 2013.
Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009---
----Art. 65---Supreme Appellate Court Rules, 2008, O. XXVI---Civil Procedure Code (V of 1908), S. 114 & O. XLVII---Review of Supreme Appellate Court judgment---Limitation---Delay, condonation of---Review petition, in the present case, was not only barred by time, but the petitioner was not party to the proceedings in which the order sought to be reviewed was passed---No plausible reason had been given in the application for condonation of delay to condone the delay of 57 days---In absence of any ground for condonation of delay, review petition was dismissed, in circumstances.
Muhammad Shafi, Senior Advocate on behalf of Petitioner.
Muhammad Issa, Senior Advocate along with Joher Ali, Advocate for Respondents.
XEN WAPDA.
2012-14 G B L R 101
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J., Raja Jalal-ud-Din and Muzaffar Ali, JJ
PROVINCIAL GOVERNMENT through Chief Secretary Gilgit-Baltistan and 5 others---Petitioners
Versus
Mrs. SHABANA SHAFA EST (BS-14) and 11 others---Respondents
C.P.L.A. No. 24 of 2013, heard on 9th October, 2013.
Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---
----Arts. 60, 78 & 81---Writ petition before Chief Court---Maintainability---Civil service---Wedlock Policy of posting and transfer---Transfer in violation of Transfer Policy---Writ petition to Chief Court---Interim relief, grant of---Scope---Husband and wife would be posted at one place under Wedlock Policy---In the present case, wives, who were transferred in sheer violation of the transfer Policy, filed writ petition against transfer order passed by Competent Authority before the Chief Court---Chief Court, suspended operation of transfer order passed by Competent Authority---Contention of petitioner/authorities, was that impugned transfer orders had been passed in exigency of service by the Competent Authority, under the law and that writ petition by respondents was not competent as once the Tribunal was established, jurisdiction of all other courts, including Chief Court, would be ousted---Validity---No doubt, matters which fell within the ambit of Administrative Court or Tribunal set up under Art.78 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, exclusive jurisdiction would remain with the Court/Tribunal, but in Gilgit-Baltistan no Tribunal had so far been established---When one was left with no remedy, in appropriate cases, the jurisdiction of the Chief Court could be invoked for the entertainment of disputes, even those were related to terms and conditions of service---Fragmentary decision should not be challenged, as same was not a final decision, but that rule would not operate as barrier in every case, exceptions were always available---Interference, could be made at the ad interim stage, where, order so passed would involve public interest---Chief Court, in many cases, granted injunction and adjourned the cases sine die without fixation of dates, which could take years in making final disposal---No doubt, weight could be given to the Wedlock Policy in public interest, but only where posts were available for adjustment of civil servants---Civil servants had no conceivable right to invoke the jurisdiction of Chief Court and get administrative orders corrected on the anvil of jurisdiction of judicial review---Discretionary power of the Superior Court was fundamentally designed to correct errors but in case of some practical difficulty, relief being discretionary, court would refuse to interfere, where grant of interim relief would result injustice---Civil servant was bound to serve anywhere in compliance with the orders of departmental authority---Even the remedy by way of filing a reference in the next higher authority was available to the aggrieved civil servant and by refusing discretionary relief, no injustice was likely to be caused to such aggrieved civil servant---Petition for leave to appeal was converted into appeal by Supreme Appellate Court, and after setting aside impugned order, case was remitted to Chief Court for decision afresh after hearing the respective parties preferably within two months.
Asad Ullah Khan, Advocate-General Gilgit-Baltistan for Petitioners.
Muneer Ahmed, Advocate for Respondents.
2012-14 G B L R 106
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Muzaffar Ali, J
NAHEED AKHTAR---Petitioner
Versus
The STATE---Respondent
Cr. A. No. 6 of 2013, decided on 20th November, 2013.
(a) Penal Code (XLV of 1860)---
----Ss. 302, 109, 114 & 34---Criminal Procedure Code (V of 1898), S.367(2)---Qatl-i-amd, abetment, common intention---Duty of court---Trial Court had passed the judgment in a hasty manner---It had not been specified as to under what offence, accused was convicted and sentenced---Courts were required to render the judgment after application of judicious mind, and court should remain conscious and it could well assess the evidentiary value of the statements of the witnesses, because the evidence of the witnesses was recorded in the presence of the Trial Court---Imperative duty of the court under S.367(2), Cr.P.C. to specify the offence under which accused was being convicted and sentenced---Court was under legal obligation to mention the sections of P.P.C., or any other law, under which accused was convicted, punished---Trial Court while rendering the judgment, in the present case, lost sight of the relevant provisions of law---Expeditious trial and quick disposal of cases, though were always appreciable, but same should not be detrimental to legal interest of accused, nor it should be done at the expense of justice---Court had adopted hasty steps to conclude the trial which could not be appreciated---Court, was to be careful while showing anxiety to dispose of the case; and it must be bridled with care and caution---Fundamental duty of the court was to see that the case of accused should not be prejudiced in any manner.
(b) Penal Code (XLV of 1860)---
----Ss. 302, 109, 114 & 34---Criminal Procedure Code (V of 1898), S.164---Qatl-i-amd, abetment, common intention---Reappraisal of evidence--- Circumstantial evidence--- Requirements--- Confession---Scope---Incident was an unseen occurrence, and entire case of prosecution, rested upon circumstantial evidence---In order to prove the case on the basis of circumstantial evidence, there should have been full chain of circumstances of the case, and chain should be such that there even a single knot of the chain should not be missing and be linked with each other, so that it could form such a continuous chain, that its one end should be so linked with the other that the first touching the dead body, and the other would rope the neck of accused---If any link of chain was missing, that would create a serious doubt and the benefit of the same, was to go to accused---No nexus of one link with the other existed and it did not make the complete chain for the conviction of accused---In order to prove the case through circumstantial evidence, not only there should be link with each knot of chain, rather every link should be corroborated through independent source, which must be confidence inspiring and truthful---Delay of 18 days in registration of case, and none was named in the FIR---Investigation of the case was so defectively conducted that evidence collected by the investigator and produced in the court, was not worthy of credence at all---Statement of accused, which was read against co-accused, had no evidentiary value at all---Confessional statement of accused was recorded with a delay of 9 days---Such belatedly recorded statement in violation of S.164, Cr.P.C., would be discarded and would not be taken into consideration at all---Accused was not provided atmosphere free from fear, so that accused could get her confessional statement recorded, truthfully and voluntarily---Accused retracted from the confessional statement at the earliest possible opportunity, much before the commencement of trial---Circumstances in which confessional statement was recorded, suggested that it was not free from duress and coercion---No supporting evidence was on record connecting accused with the crime for reliance on confessional statement--- Courts below had not given any reason, while accepting the retracted confessional statement of accused---Conviction could not be based on such like scanty evidence---Prosecution having failed to prove its case against accused, beyond reasonable doubt, conviction and sentence awarded to accused by courts below, were set aside and accused was acquitted of the charge and was released, in circumstances.
(c) Criminal Procedure Code (V of 1898)---
----S. 164--- Confessional statement--- Admissibility, rule of---'Confession' and 'retracted confession'--- Distinction--- Rule of admissibility of confessional statement, prescribed no time as to the recording of the confession of accused---Simpliciter delay in recording of the confession of accused, could not be fatal to the case of the prosecution, but the court was under legal obligation to examine the same, keeping in view the circumstances of the case---Court was to satisfy itself as to whether the confession was voluntary, true, and was recorded in accordance with law, and whether it could be relied upon---Generally, delay in recording a confession would make the confession doubtful---Statement under S.164, Cr.P.C., recorded after keeping the accused in long detention in the Police custody, was always viewed with suspicion, and was unsafe to rely upon for conviction, particularly, when same was retracted much before the commencement of trial---If the confessional statement was recorded with a nominal delay after the arrest of accused, it should not be ruled out of consideration; and if there was an unexplained delay for a considerable period, same should not be taken into consideration without any independent corroboration---No basic difference existed between confession and retracted confession, what was required to be seen, was that element of truth should have not been missed---If confessional statement of accused was found voluntary, conviction could be recorded, but rule of caution required that a retracted confession must be supported by some other independent evidence connecting accused with the crime---Retracted confession, was always open to suspicion, and could not be acted upon, unless it was corroborated by independent, trustworthy and thorough truthful witnesses---Confessional statement could be relied upon, where supportive evidence of recoveries, effected at the instance of accused, had been proved on record as well as medical evidence---Evidentiary value of a confessional statement heavily depended upon its voluntary character, which was of great importance.
Malik Haq Nawaz, Senior Advocate for Petitioner.
Asad Ullah Khan, Advocate-General Gilgit-Baltistan.
2012-14 G B L R 123
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Muzaffar Ali, J
MULTIPURPOSE CO-OPERATIVE SOCIETY through Presidents---Petitioner
Versus
KARAKURAM CO-OPERATIVE BANK LIMITED through General Manager---Respondent
C.P.L.A. No. 3 of 2013, decided on 24th March, 2014.
Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---
----Art. 60(13)---Supreme Appellate Court Rules, 2008, O.XIII, R.1---Petition for special leave to appeal to Supreme Appellate Court---Limitation---Delay, condonation of---Suit filed by respondent Bank against the petitioner having been decreed by the Banking Court, petitioners had filed writ petition before the Chief Court against judgment of the Banking Court which was dismissed---Validity---Petition for leave to appeal which under O.XIII, R.1 of Supreme Appellate Court Rules, 2008, was required to be filed within 60 days, excluding the necessary period consumed in obtaining the copy of order; was filed with a delay of about 41 days, without explaining such delay---Petitioners, did not, even file any application for condonation of said delay---If any aggrieved party would not file the case within the prescribed period of law, it would create a valuable legal right in favour of the other party, which could not be taken away casually---Present petition being time barred, a valuable right had accrued to the other party---Petition for leave to appeal was dismissed, in circumstances.
Ehsan Ali, Advocate for Petitioners.
2012-14 G B L R 125
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan C.J. and Raja Jalal-ud-Din, J
PROVINCIAL GOVERNMENT GILGIT-BALTISTAN through Chief Secretary Gilgit-Baltistan and 2 others---Petitioners
Versus
JAN WALI---Respondent
C.P.L.A. No. 6 of 2012, heard on 25th March, 2014.
Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---
----Arts. 60 & 71--- Civil service--- Dismissal from service---Reinstatement with back benefits---Implementation of order---Service of the respondent who was foot constable, were terminated by the competent Authority on the charge of having been involved in a criminal case registered against him---Departmental appeal against termination order, having been dismissed, respondent approached the Chief Court by filing writ petition for the redressal of his grievance which petition was accepted with direction to reinstate the respondent with back benefits for the period during which he had not remained gainfully employed elsewhere---Application for implementation of order passed by the Chief Court was allowed with direction to pay back benefits to the respondent---Authority feeling aggrieved, assailed the said order of Chief Court before Supreme Appellate Court contending that matter of payment of back benefits having been left to the discretion of competent Authority (by the Supreme Appellate Court in an earlier order), Chief Court could not take up the matter and thereafter direct the payment of back benefits---Held, order earlier passed by the Supreme Appellate Court reflected that Authority was only given the mandate to hold regular inquiry and the Court nowhere dealt with postponement of payment of back benefits till conclusion of inquiry, if so initiated against respondent---Respondent, in view of said judgment of Supreme Appellate Court, was entitled to recover back benefits as per orders of the Supreme Appellate Court, and no exception could be taken to the same---Interference was declined by the Supreme Appellate Court---Petition for leave to appeal was dismissed.
Advocate-General Gilgit-Baltistan.
2012-14 G B L R 128
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Raja Jalal-ud-Din, J
MUHAMMAD AJAB KHAN---Petitioner
Versus
FAIZULLAH and another---Respondents
C.P.L.A. No. 43 of 2011, heard on 29th April, 2014.
(a) Tort---
----Malicious prosecution---Suit for damages---Petitioner against whom criminal cases were got registered by the respondents, having been acquitted, petitioner had filed suit for damages for malicious prosecution, on the ground that he being a respectable pensioner of Pakistan Army, was roped in criminal cases on account of malice, which caused mental agony and torture, besides forcing him to suffer monetary loss and lowered his image and dignity in the estimation of the society---Trial Court dismissed the suit filed by the petitioner---Appeal and review by the petitioner against order dismissing suit was dismissed by the Chief Court---Validity---Law, in case of the petitioner, provided two remedies, one was a heavy cost and the other was damages for malicious prosecution---Cost incurred on litigation could be claimed by a separate suit after decision of the lis---Suiter in the main case, could furnish the bill of the cost, or the court could grant the damages on the basis of assessment of the evidence and the stance taken by the courts below---"Acquittal" and "honourable acquittal", would carry no different meaning, but, if something had been rendered in the judgment that accused suffered prosecution on account of malice or ill-will, that would strengthen the case of the suiter, yet the independent evidence brought on record to dislodge the finding, could not be ignored altogether---Chief Court, in the present case, had lost sight to consult the record for the points and grounds taken in the memorandum of appeal---Disposal of cases in slipshod manner, was totally unwarranted by law---Petition for leave to appeal, was converted into appeal and was allowed---Judgments/orders, passed by the Chief Court, being not sustainable at law, were set aside, and case was remitted to the Chief Court with the direction to decide the matter afresh in accordance with law.
(b) Civil Procedure Code (V of 1908)---
----S. 2(9), O. XX, R. 4 & O. XLI, R. 31---'Judgment', meaning and scope---'Judgment', would mean, judicial decision of a court or judge, it need not necessarily dealt with all matters in issue in a suit but determine only those issues, decision of which had the effect of adjudicating all the matters in controversy resulting into final disposal of lis---Essential element of the "judgment", was that there should be statement of grounds of decision and not recapitulates of arguments of the parties; it must show evolution of evidence led by both the parties and conscious effort of courts to reach a certain conclusion---Most important ingredient of a valid "judgment" was reasons or grounds for decision, because validity of the judgment in higher forums, was to be seen from reasoning---Conclusion arrived at by the court, could not be binding without reasoning---Even in ex parte judgment, reasoning should be given very clearly---Justice should not only be done, but should be seen to have been done---Reasoning was also necessary to satisfy the most important principle of dispensation of justice---Court would act with material irregularity and illegality, if would fail to record reasons in support of its decision---If the reasoning was missing, it could hardly fall within purview of the definition of "judgment"---Accumulated effect of S.2(9), O.XX, R.4, C.P.C., would be that decision by a court to be termed as a "judgment", must be based on reasoning and failure to comply with the requirement of the provision of law would render the judgment nullity and unsustainable---Not only the Trial Court was required under the law to give reasons for its conclusion, even Appellate Court was also bound to give detailed reasoning in support of judgment---Order XLI, R.31, C.P.C., clearly mandated that judgment of the Appellate Court, should be in writing and would state (i) points for determination (ii) decision thereon; (iii) reasons for decision and (iv) as to whether the decree applied from, was reversed or varied and the relief which the appellant was entitled---Disposal of cases through arbitrary exercise of power without application of judicious mind, was least permissible at law---Even if counsel defending the cause of litigant public showed not a proper performance in rendering assistance to the court, Chief Court and subordinate judiciary, was not absolved of his duties to apply the same law on the basis of factual matrix or marshalling facts.
Raja Muhammad Afzal v. Ch. Altaf Hussain and others 1986 SCMR 1736; Mst. Fatima v. Khuda Bax and others PLD 1959 Lah. 826; Muhammad Saddiq v. Syed Ali Shah and another PLD 1976 Lah. 293 and Gouranga Mohan Sikdar v. The Controller of Import and Export and 2 others PLD 1970 SC 158 ref.
Muhammad Hussain Shehzad, Advocate for Petitioner.
Mir Ikhlaq Hussain, Advocate for Respondents.
2012-14 G B L R 137
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Raja Jalal-ud-Din, J
The STATE---Appellant
Versus
SUFI ALI and 3 others---Respondents
Criminal Appeal No.4 of 2011 in C.P.L.A. No. 13 of 2011, decided on 16th May, 2014.
(a) Criminal Procedure Code (V of 1898)---
----Ss. 410 & 417---Appeal against conviction and appeal against acquittal---Scope---Remarkable difference existed between appraisement of evidence in an appeal against acquittal and in an appeal against conviction---Principles of appraisal of evidence on record, was required to be carried out very consciously and with application of judicious mind strictly in an appeal against conviction, but same method could not be applied in appeal against acquittal, as there was already a decision of acquittal rendered by the court of competent jurisdiction---While appraising the evidence different inference, could only be drawn, when it appeared so apparently that there had been a gross misreading of the evidence, or a very essential part of the evidence had not been taken into consideration, which if would have been read, the conclusion could have been different, particularly, if it led to miscarriage of justice---Supreme Appellate Court ordinarily, did not interfere with the case of acquittal, rather a due weight was given to the findings of court acquitting accused---Reappraisement of the evidence, was to be done very carefully and consciously as accused had already earned acquittal.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 154, 156 & 157--- Information in cognizable cases---Investigation---Every information pertaining to the commission of a cognizable offence, either given orally to an officer incharge of a Police Station, would be reduced in writing by him---Information given in writing or reduced in writing, would be read over to the informant, and would be entered in a book to be kept in Police Station---Section 156, Cr.P.C., had conferred power on the officer incharge of the Police Station to investigate any cognizable offence within the local limits of his area---Under provisions of S.157, Cr.P.C., if any information was received, or if Police Officer had reason to suspect the commission of an offence, he, on receipt of information, would forthwith send a report to the Magistrate, having jurisdiction to take cognizance of that offence upon a Police report---Police Officer, thereafter would proceed to the place of occurrence, or he would depute one of his subordinates to inspect the spot in order to investigate facts and circumstances of the case.
(c) Penal Code (XLV of 1860)---
----S. 153-A---Anti-Terrorism Act (XXVII of 1997), Ss.8, 9 & 25---Criminal Procedure Code (V of 1898), Ss.196 & 417(2)---Promoting enmity between different groups, act of terrorism---Appeal against acquittal---Case was registered on information with the delay of almost 20 days---Procedure---Police Officer was duty bound to send report to the Magistrate concerned forthwith---Police Officer did not send any such report to the Magistrate, which had caused a serious doubt about the secret information and proceedings by the Police Officer---Case could not be registered with promptitude, which had made the case of prosecution doubtful---Prosecution witnesses had stated that they were never associated with the investigation of the case nor their statements under S.161, Cr.P.C., were ever recorded by the Investigating Officer---Inference could be drawn that witnesses had not seen accused persons while committing the offence---Whole exercise undertaken by the Investigator, while collecting the incriminating material from accused persons, was rendered futile---Such kind of evidence could not be relied upon for conviction and sentence, particularly, when appeal was against acquittal---Cognizance in the offence under S.153-A, P.P.C., could not be taken to any court in view of S.196, Cr.P.C.---Registration of FIR in such a manner was void ab initio---Offence under S.153-A, P.P.C., could not be termed as an offence against individual, rather it was an offence against the State---Court would take the cognizance of offence punishable under S.153-A, P.P.C., upon a complaint made by Federal Government or Provincial Government or some officer so empowered in that behalf by any of the two Governments---No sanction was accorded, entitling the Judge Anti-Terrorism Court to take the cognizance of the offence under S.153-A, P.P.C.---Case in an offence under S.153-A, P.P.C., could not be proceeded on the report prepared under S.173, Cr.P.C.---Non-adherence and observance of the provisions of S.196, Cr.P.C., rendered the subsequent proceedings a nullity---Where a condition for the exercise of jurisdiction, was not fulfilled, the whole proceedings, subsequent thereto would become coram non judice, and would have no legal effect, and would render the whole exercise, not only illegal, but also without jurisdiction---Accused was presumed to be innocent, unless found guilty---Supreme Appellate Court, could not substitute its own finding, unless it was found that the findings of the Chief Court, were based on mis-reading of the evidence leading to miscarriage of justice---Judgment of the Chief Court, whereby, accused persons were acquitted, was unexceptional, and did not require any interference, in circumstances.
Yar Muhammad and others v. The State 1992 SCMR 96 ref.
(d) Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009---
----Art. 60---Leave to appeal was granted for reappraisement of evidence to meet the ends of justice; with observation that benefit of every reasonable doubt, was to be extended to accused.
Asad Ullah Khan, Advocate-General Gilgit-Baltistan on behalf of the Appellant.
Malik Haq Nawaz, Advocate for Respondent No.4.
Mir Ikhlaq Hussain, Advocate for Respondents Nos.1, 2 and 3.
2012-14 G B L R 148
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Raja Jalal-ud-Din, J
HABIBULLAH and 18 others---Petitioners
Versus
RAHIMULLAH and 11 others---Respondents
C.P.L.A. No.32 of 2011, heard on 22nd May, 2014.
Civil Procedure Code (V of 1908)---
----Ss. 47 & 12(2)---Execution of decree---Questions to be determined by the court executing the decree---Scope of S.47, C.P.C.---Section 47, C.P.C., was meant to regulate and determine the question raised before the Executing Court---Any or all questions, relating to execution, discharge or satisfaction of the decree, would be determined by the Executing Court and not through separate suit---Executing Court, could not go beyond the decree and its prime function was to execute the decree in stricto sensu---Executing Court, could neither go outside the decree passed by the court of competent jurisdiction, nor could allow its validity to be impugned in executing proceedings---Executing Court in the executing proceedings, could not determine the question as to whether the view of the court which passed the decree, was right or wrong, same being not open for adjudication by the Executing Court---Executing Court was required to execute the decree as it was---When the decree had attained finality, Executing Court was not competent at all to rectify any mistake in the decree---Decree was only required to be executed in its letter and spirit, otherwise, it would tantamount to go beyond the decree---When the decree was unambiguous, the Executing Court was bound to execute the same as such---If, some factual objections were raised before the Executing Court at the time of execution of decree, the Executing Court was not under legal obligation to resolve the same during execution proceedings which could only be raised before passing of the decree---Executing Court could not re-determine the rights and liabilities of the parties and once decree was passed, it had to be executed in its terms---Points of attack or defence, which were never agitated at the time of trial, could never be raised at the stage of execution of the decree by filing an independent application under S.47, C.P.C.---If at all the defendants were aggrieved of the judgment under execution, with reservation that same was outcome of exercise of fraud and misrepresentation, then they were at liberty to move an independent application under S.12(2), C.P.C.---Defendants were restrained, under the law from raising such question when the execution proceedings were in progress.
Mst. Naseem Akhtar and 4 others v. Shalimar General Insurance Company Limited and 2 others 1994 SCMR 22 ref.
Rehmat Ali, Advocate for Petitioners.
Muhammad Hussain Shahzar along with Latif Shah, Advocate for Respondents.
2012-14 G B L R 153
[Supreme Appellate Court]
Before Rana Muhammad Arshad Khan, C.J. and Muzaffar Ali, J
Haji GHULAM QADIR---Petitioner
Versus
SAJJAD ALI and 4 others---Respondents
Criminal Petition for Leave to Appeal No. 1 of 2013, heard on 29th May, 2014.
(a) Penal Code (XLV of 1860)---
----Ss. 427, 447, 506, 147 & 148---Criminal Procedure Code (V of 1898), Ss.249-A & 417(2-A)---Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art. 60---Mischief causing damage, criminal trespass, criminal intimidation, rioting---Appeal against acquittal---Reappriaisal of evidence---Complainant was not present at the place of occurrence at relevant time and he was told the details of the occurrence when he reached the place of alleged venue of crime---Name of eye-witness was not mentioned in the FIR, and the implication of accused persons in the case was on the basis of hearsay evidence---Name of person who gave the details of the occurrence, was not given---No direct evidence was available against accused persons---Prosecution obtained as many as sixteen adjournments, on one or the other pretext, but did not produce any witness at all---None of the prosecution witnesses, in pursuance of bailable warrants, turned up to appear before the court including the complainant, nor bailable warrants were returned---Accused persons remained in attendance, and the complainant kept on prolonging the agony of accused persons---Prosecution failed to produce the evidence in order to substantiate its case against accused persons---Acquittal of accused persons under S.249-A, Cr.P.C., did not suffer from any illegality or irregularity, causing any miscarriage of justice, and did not warrant interference---Judgment of the Chief Court being unexceptional, did not admit any interference by the Supreme Appellate Court---Petition was dismissed.
(b) Criminal Procedure Code (V of 1898)---
----S. 249-A---Power of the Magistrate to acquit accused---Magistrate was empowered to acquit accused at any stage of the case, if after hearing the prosecutor and accused, Magistrate considered that the charge against accused was groundless, or there was no probability of accused being convicted of any offence---Trial Court was under legal obligation to see, before making acquittal orders, that as to whether the prosecution failed to produce the witnesses for an inordinate delay and it should have been established on the record that the summonses were duly issued---Issuance of summonses, was not enough, it should have been ascertained that same had also been served upon the witnesses and the witnesses including the complainant were intentionally not coming ahead to appear in response to the process issued by the court---All the coercive measures were also to be adopted to ensure their presence---If it had been done in accordance with law, and even then the witnesses did not appear before the court and the prosecution did not take any interest in the case, court could proceed under S.249-A, Cr.P.C. and acquit accused for non-production of evidence.
Wazir Walayat Ali, Advocate for Petitioner.