case law on 22 A B allow

(2013 P Cr. L J 117 [Sindh] Before Nadeem Akhtar, J)

(a) Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 154---Information disclosed to Justice of Peace constituting a cognizable offence---Duty of Justice of Peace in such circumstances to give directions for registration for F.I.R.---Scope---Cognizable offence committed during pendency of a civil dispute---Complainant alleged that he had purchased a property from the accused and had paid the entire sale consideration but despite such fact accused refused to hand over the property---Accused while armed with weapons visited Otaq of complainant and threatened to kill him if he continued with his demand of the said property---Station House Officer (SHO) refused to register F.I.R. for the incident because of which complainant approached the Justice of Peace, who on basis of police report refused to give directions for registration of F.I.R. and observed that dispute was a civil dispute which had arisen out of an agreement to sell, therefore, same should be taken to the civil court---Validity---Application of complainant before Justice of Peace was dismissed on basis of police report and not on the basis of the incident narrated and specific allegations made by the complainant---Contents of the application made by the complainant were not considered by the Justice of Peace in order to determine whether any cognizable offence had been made out or not---Justice of Peace was duty bound to determine the question of existence or non-existence of cognizable offence without going into the veracity of the information in question---Complainant did not conceal the existence of a civil dispute in his application before the Justice of Peace and only raised the specific allegation that accused forcibly entered into his Otaq with weapons and threatened to murder him---Despite such serious allegations, Justice of Peace did not deal with the basic questions whether information disclosed by the complainant did or did not constitute a cognizable offence, and whether the Station House Officer (SHO) refused to register the complaint---Impugned order of Justice of Peace was not a speaking order as no valid reason had been mentioned therein to show that prayer made by complainant had been declined after proper and full application of mind---Impugned order was a nullity and accordingly set aside by the High Court with the direction that Station House Officer should record statement of complainant if a cognizable offence was made out on basis of such statement---Application was allowed accordingly.
Mst. Bhaitan v. The State and 3 others PLD 2005 Kar. 621; Salah-ud-Din Khan, S.H.O. and 2 others v. Noor Jehan and another PLD 2008 Pesh. 53 and Muhammad Bashir v. Station House Officer, Okara Cantt. and others PLD 2007 SC 539 rel.
(b) Criminal Procedure Code (V of 1898)---
----Ss. 154 & 155---Registration of F.I.R.---Scope---Station House Officer (SHO) of Police holding inquiry to assess correctness of information provided by complainant---Legality---No provision in any law, including Ss.154 and 155, Cr.P.C., authorized an Officer Incharge of the Police Station to hold any inquiry to assess the correctness or falsity of the information received by him before complying with the mandatory requirement of reducing the information into writing irrespective of the fact whether such information was true or not.
(c) Criminal Procedure Code (V of 1898)---
----S. 22-A---Justice of Peace calling for police report/comments for deciding an application under S.22-A, Cr.P.C.---Validity---When it was alleged in an application under S.22-A, Cr.P.C. that a cognizable offence had been committed and same was not registered by the Station House Officer despite applicant's complaint, then it was not necessary for the Justice of Peace to call for comments or report from police in order to decide such an application.
(d) Criminal Procedure Code (V of 1898)---
----S. 22-A---Cognizable offence committed during pendency of a civil/private dispute---Justice of Peace dismissing application under S.22-A, Cr.P.C. due to existence of private or civil dispute---Validity---Dismissal of application under S.22-A, Cr.P.C. by Justice of Peace in such circumstances would be a misconception because, firstly, had the same been the intention of the law makers, then a barring clause would have been inserted in S.22-A, Cr.P.C. barring all applications before Justice of Peace wherein parties were involved in a private or civil dispute, and secondly, because parties might have a private or civil dispute and at the same time during pendency of such dispute, one or both parties might commit a (criminal) offence against the other---Parties, in such a situation, should have both remedies available to them, one before the competent civil court and the other before the proper forum prescribed under Cr.P.C.
(e) Criminal Procedure Code (V of 1898)---
----S. 22-A---Information disclosed to Justice of Peace constituting a cognizable offence---Duty of Justice of Peace in such circumstances to give directions for registration of F.I.R.---Scope---When an oral or written complaint was made before the Justice of Peace in respect of an offence, he was bound under S.22-A(6), Cr.P.C. to examine whether the information disclosed by the applicant did or did not constitute a cognizable offence, and if it did according to his own independent opinion as per facts narrated by the applicant, then he was bound to direct the Station House Officer (SHO) to register an F.I.R., without going into veracity of the information and irrespective of any private or civil dispute between the parties.
(f) Criminal Procedure Code (V of 1898)---
----Ss. 22-A & 154---Station House Officer receiving directions from Justice of Peace to register F.I.R.---Duty of Station House Officer to register an F.I.R. in such circumstances---Scope---Upon a direction issued by Justice of Peace, concerned Station House Officer was bound to register an F.I.R. under S.154, Cr.P.C., whether the information received by him was false or correct and whether any private or civil dispute between the parties was pending or not---Station House Officer had no power to refuse to register the F.I.R., if the offence appeared to be cognizable from the information received by him. 

ملڪ مان نڪرندڙ قدرتي وسيلن جھڙوڪ تيل ۽گيس بابت سپريم ڪورٽ جو فيصلو

P L D 2014 Supreme Court 350
Present: Jawwad S. Khawaja, Khilji Arif Hussain and Gulzar Ahmed, JJ
APPLICATION BY ABDUL HAKEEM KHOSO, ADVOCATE---In the matter of Constitutional Petitions Nos. 46, 278-Q and Human Rights Case No.36052-S of 2013, decided on 27th December, 2013.
(a) Constitution of Pakistan---
----Art. 172(2) & (3)---Natural resources, ownership of---Mineral oil and natural gas---People of Pakistan were the ultimate owners of natural resources including mineral oil and natural gas through their Governments and State controlled entities.
(b) Constitution of Pakistan-------Art. 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding contractual and legal obligations of oil Exploration and Production (E&P) companies operating in Pakistan towards the environment and welfare and uplift of areas of their operation---Enforcement of fundamental rights of citizens---Suo motu notice by the Supreme Court under Art. 184(3) of the Constitution, significance of---Chief Justice of Pakistan took note of a speech delivered by an office bearer of a District Bar Association wherein certain violations of law and the terms and conditions of [petroleum concession] agreements by oil Exploration and Production (E&P) companies operating in the concerned district were highlighted---Copy of the speech was marked by the Chief Justice to the Human Rights Cell (HRC) of the Supreme Court---Report/comments received from concerned personnel and functionaries were found unsatisfactory and it was, therefore, directed that the matter be put up in the Supreme Court as a petition under Art.184(3) of the Constitution---Supreme Court observed that significance of Art.184(3) of the Constitution in enforcing the fundamental rights of the people all over the country without the necessity of having a petitioner from each district was evident from the present case; that in the ordinary course it would have been extremely difficult logistically and financially for a resident of concerned district to file and pursue legal recourse in the civil courts or in the constitutional courts, and even if such recourse had been taken it would have remained confined to issues relating to the concerned district; that it was only on account of Art. 184(3) of the Constitution and the willingness and ability of the (Supreme) Court to take notice suo motu that the entire country spread over more than 105 Districts had been brought within the compass of one initiative taken by the concerned District Bar Association and then proactively dealt with by the Human Rights Cell of the (Supreme) Court and then in court hearings; that it should be obvious from the facts of the present case that conventional methods of seeking legal redress could be grossly inadequate for people without sufficient means, particularly when they might be pitted against more resourceful individuals and corporate entities; that present case summedup the rationale behind Art.184(3) of the Constitution, and the wisdom and foresight of the framers who sought an egalitarian polity by equalising the ordinary citizen with those of greater resources and means, in matters of "public importance with reference to the enforcement of the Fundamental Rights" guaranteed by the Constitution.
(c) Constitution of Pakistan---
----Arts. 9, 14 & 184(3)---Constitutional petition under Art. 184(3) of the Constitution regarding contractual and legal obligations of oil Exploration and Production (E&P) companies operating in Pakistan towards the environment and welfare and uplift of areas of their operation---Maintainability---Plea of applicants that oil exploring companies were acting in violation of law and the terms and conditions of the [petroleum concession] agreements which they executed with the Government whereby they were bound to control environmental pollution, provide jobs and gas facility to the local people and spend specified amount[s] on the local infrastructure such as roads, schools, hospitals and the betterment of local people---Such plea of applicants was not without substance and Federal, Provincial and Local Governments had failed to ensure performance of the obligations of Exploration and Production (E&P) companies, which were actively exploring nearly one-third of the land area of the country---Vast numbers of people were affected by the issues arising in the present case, therefore it raised matters of public importance relating directly to their fundamental rights; especially those guaranteed in Arts.9 & 14 of the Constitution---Constitutional petition was held to be maintainable accordingly.

PLD.2016.SC.951... case law on 161 crpc

PLD.2016.SC.951...
Section..161..crpc..Supplementary statement recorded by prosecution witness after more than a month of the occurrence...
such statement has no legal valve and was inadmissible in evidence and could not be used to contradict the contents of the FIR...
Supplementary statement recorded subsequently to the FIR could be viewed as improvement made to the witness,s statement...

Some Important case laws on various propositions.

Some Important case laws on various propositions.

INTERIM RELIEF

2006 YLR 1574
2005 YLR 787
2006 PCRLJ 494
2006 PCRLJ 18
2005 MLD 535
2005 MLD 576

Bail in Juvenil Justice

2005 YLR 3196
2006 PCRLJ 542
2002 PCRLJ 657
2002 MLD 1817
2003 YLR 1792
2002 YLR 1045
2005 MLD 1247
2006 MLD 507
2004 MLD 1747
2005 MLD 1468
2005 YLR 838
2002 YLR 176
PLD 2004 PESHAWER 70
2005 PCRLJ 1500
2003 YLR 3204
2004 MLD 630
2006 PCRLJ 1788
2004 PCRLJ 426

22-A

2006 CLC 119
2005 YLR 1408
2005 YLR 3127
2006 MLD 1184
2005 PCRLJ 684
2005 PSC 34
PLD 2005 KAR 285
2006 YLR 1904

CANCELLATION OF BAIL

2006 YLR 1433
2006 YLR 1678
2006 YLR 712
2006 PCRLJ 1087
2006 PCRLJ 18
2006 PCRLJ 1070
2006 PCRLJ 292
2006 PCRLJ 1144
2006 PCRLJ 1009
2006 PCRLJ 249
2006 PCRLJ 986
2006 PCRLJ 405,423,986
PLJ 2006 CRC (LAH)955
PLJ 2006 SC 247
PLJ 2006 CRC (LAH)469,176,883
PLJ 2005 CRC (LAH) 65,268,120
2006 SCMR 93

SECTION 154 CRPC

PLJ 2006 CR.C (LAH) 190(DB)
2005 YLR 1329
2006 PCRLJ 1277
2004 PCRLJ 391
2004 PCRLJ 976
2004 SCMR 868
2005 SCMR 154
PLJ 2005 SC 24
PLJ 2006 LAH 507

INTERIM RELIEF

2006 YLR 1574
2005 YLR 787
2006 PCRLJ 494
2006 PCRLJ 18
2005 MLD 535
2005 MLD 576

249-A power of magistrate to aqcuite accused at any stage of proccedings

PLJ 2004 SC 2
PLD 1981 SC 607
NLR 1999 PCRLJ 137
2003 YLR 274
2005 PCRLJ 252
PLD 1984 SC 428
PLD 1999 SC 1063
2000 MLD 605
1991 PCRLJ 1381
1985 SCMR 257
PLD 1991 LAH 268
1999 MLD 1645
PLD 1999 SC 1063
2003 PCRLJ 12
PLJ 2003 AJ&K
2004 PCRLJ 1068

Locus Poenitentie U/S 121 of General Clause Act

PLD 1997 KARACHI 450
1998 SCMR 2745
2002 CLC 1464
2004 YLR 2047
2003 CLC 1196
2000 CLC 443
PLD 1964 SCMR 407
1001 SCMR 15
PLD 1985 AJK 17
PLD 1975 KARACHI 373
1994 MLD 751

249-A power of magistrate to aqcuite accused at any stage of proccedings

PLJ 2004 SC 2
PLD 1981 SC 607
NLR 1999 PCRLJ 137
2003 YLR 274
2005 PCRLJ 252
PLD 1984 SC 428
PLD 1999 SC 1063
2000 MLD 605
1991 PCRLJ 1381
1985 SCMR 257
PLD 1991 LAH 268
1999 MLD 1645
PLD 1999 SC 1063
2003 PCRLJ 12
PLJ 2003 AJ&K
2004 PCRLJ 1068

Locus Poenitentie U/S 121 of General Clause Act

PLD 1997 KARACHI 450
1998 SCMR 2745
2002 CLC 1464
2004 YLR 2047
2003 CLC 1196
2000 CLC 443
PLD 1964 SCMR 407
1001 SCMR 15
PLD 1985 AJK 17
PLD 1975 KARACHI 373
1994 MLD 751

Pre- Emption

1988 SCMR 892
1996 CLC 161
2001 SCMR 495
1991 MLD 506
2008 PLD MARCH/APRIL
Mian peer v/s Fakir mohammad
PLD 2007 SC 121
1991 SCMR 112

Accused not named in F.I.R

2006 YLR 1664
2006 YLR 712
2006 PCRLJ 423
2006 PCRLJ 1070
2006 PCRLJ 986
2006 PCRLJ 612
2006 PCRLJ 418
2006 YLR 418
2006 YLR 1404
2006 YLR 1872

Check dishounor / 489-F

PLJ 2004 545

PLD 99 KARACHI 121

PCRLJ 2004 343

PLD 95 SC 34

2004 PLJ LAHORE 522

Plea of Alibi

2005 MLD 1756
2005 MLD 1267
2005 MLD 415
2006 YLR 749
2006 PCRLJ 184
2004SCMR 1019
2005 PCRLJ 1269

Identification Parade

2006 MLD 14
2005 YLR 657
2006 MLD 431
2005 YLR 1404
2006 YLR 673
2005YLR 3151
Identification Parade not Held

Benefit of doubt

PLJ2005 Cr.C Lah 47
2006 MLD 614
2006 MLD 595
PLJ 2005 Cr.C.Pesh 999
2006 PDr.LJ 1033
2005 YLR 3141
Benefit of doubt

Custody of minor

CUSTODY OF MINOR

1. 2003MLD 977
2. 2003 CLC 1492
3. 2003 CLC1265 LAH
4. 1994 MLD 1199
5. 1983 SCMR 480
6. 1981 NLR 741
7. 1983 SCMR 481
8. 1996 CLC KAR
9. 2003 MLD 980

Bail in rape cases

PCRLJ 2006 CR.C LAHORE 433
PLJ 2006 CR,C LAH 101
PLJ 2006 CR.C LAH 106
PLJ 2005 CR.C LAH 813
PLJ 2005 CR.C LAH 542
2003 YLR 1757
PLJ 2003 CR.C LAH 640

Bail in Rape cases under hadood ordinance Sec 10/11

1984 PCRLJ 365
NLR 1993 56
86 PCRLJ 1587
PLD 84 SC 23
PLD 59 LAH 677
1990 ALD 92 (1)
1990 ALD 435 (2)

Delay in FIR in that cases

1990 ALD 546
NLR 1993 PESH 480

Decoy witness

1994 PCRLJ 292
1989 PCRLJ 1324/1334

Excused of accused in court

1980 PCRLJ 1---3
PLD 1988 KAR 535
1989 PCRLJ 1652
PLD 1993 373

Bail
Bail means to hand over an accused into the hands of surety from the custody of state.

Definition of bail after arrest U/S 497 Cr.P.C
PLJ 2006 SC (AJ & K ) 65.

Principles of bail after arrest.
1. Prima facie case 1991 MLD 1435
2. Appreciation of evidence 2004 PCr.LJ127
3. Benefit of doubt 199 PCr.Lj 582
4. Recovery 1998 MLD 1366
5. Delay in trial PLD 2005 Karachi 201

Distinction between bail after arrest and bail before arrest

2005 PCr.Lj 546 2005 YLR 3133

Grounds of Bail after Arrest

(i) Further Inquiry U/S 497
PLJ 2006 Cr.C.Lah 885 (Grant)
2005 YLR 2532(Grant)
PLJ 2006 Cr.C.Lah 97 (Grant)
2005 MLD 1072 (Grant)

(ii) Delay in Lodging FIR

PLJ 2006 Cr.C(Lah)117 (Grant)
2006 YLR 1863
2006 YLR 1563
2006 YLR 712
2006 PCr.LJ 1087
2006 YLR 712

Stay order 39 rule 1-2

1989 SCMR 130
1992 SCMR 138
1988 PLD S.C 1509
2000 SCMR 780
AIR 37 LAH 288
2003 CLC 16595

Grounds of bail before

2006 YLR 1305
2006 MLD 559
2006 MLD 1046
2006 PCRLJ 234
PLJ CRC(LAH)173
2006 MLD 491

Neccessary party

1906 MLD 195
1986 MLD 18
1957 LAH 882
1970 SCMR 839
1987 LAH 336/307

Ejectment of tenent for personal use

1996 SCMR 1097
1997 SCMR 1062
1991 SCMR 1831
1991 SCMR 2337

1987 MLD 715
1987 MLD 2367
1987 MLD 1078
1988 MLD 1974

NLR 1997 CIVIL 290
NLR 1999 AC 523
NLR 1997 CIVIL 706

PLJ 2003 SC 65

PLD 1987 KARACHI 180

1991 CLC 1381
1991 SCMR 1759

Judgements for maintainance of children to the father

PLD 1881 LAHORE 280
PLD 1986 LAHORE 272
PLD 1958(W.P)LAHORE 596
1985 MLD 96
NLR 1991 CLJ 430
1987 CLC 247

Judgements on ejectment of tenent for personel use

1996 SCMR 1097
1997 SCMR 1062
1991 SCMR 1831
1991 SCMR 2337

NLR 1997 CIVIL 290
NLR 1999 AC 23
NLR 1997 CIVIL 706

1987 MLD 715

1988 MLD 1974

1987 MLD 2367

1987 MLD 1078

PLD 1987 KARACHI 180

PLJ 2003 SC 65

1991 CLC 1381

1991 SCMR 1759
(Copied)

case law on benefit of doubt

Ss. 6 & 9(c)---Prohibition of possessing and trafficking of narcotics---Appreciation of evidence---Prosecution had examined only two Police Officials---Car claimed to have been used for transportation of the narcotics was owned by one, who had not been examined---No explanation was offered for non producing and non-examination of said owner of car--Discrepancies were found with regard to the chassis number; of the car alleged to have been used in the crime---Impugned judgment, in circumstances, was not sustainable in law--Burden was upon the prosecution to prove charge against accused beyond reasonable doubt; and law presume d an accused innocent till proved guilty beyond reasonable doubt---material contradictions existed in the deposition of the two prosecution witness es---Evidence of both the prosecution witness es on the seizure of narcotics/samples secured from the spot had material contradictions, which were sufficient to hold that the prosecution had failed to prove the case against accused beyond reasonable doubt---Impugned order passed by Special Court, was set aside, in circumstances.

2011 YLR 1483 KARACHI-HIGH-COURT-SINDH
Side Appellant : KHAN MUHAMMAD
Side Opponent : State

2002 CLC 96 KARAchi. Facts speaks itself,Doctor left towal inside the abdomin during opration which brought out another doctor so suit for damages decreed against first doctor.

2002 CLC 96 Karachi.
Facts speaks itself,Doctor left towal inside the abdomin during opration which brought out another doctor so suit for damages decreed against first doctor.

PLD 1995 KAR 555. Newspaper's news related to chachater of someone is not admissible in evidence.

PLD 1995 KAR 555.
Newspaper's news related to chachater of someone is not admissible in evidence.

Bail granted authority in 386 ppc & 7 ATA

Bail granted authority in 386 ppc & 7 ATA ( Mujjan Ali Panhwar )

S. 497 (2)---Penal Code (XLV of 1860), S.386 /34---Anti-Terrorism Act (XXVII of 1997), S.7---Extortion by putting a person in fear of death or grievous hurt, act of terrorism---Bail, grant of---Further inquiry---Allegation of the complainant was that he received calls from two mobile phones from the accused who demanded amount and in failing to make such payment threats of dire consequences were extended---Complainant in his statement under S.161, Cr.P.C. had come forth verbatim as in his complaint and added that he gave tainted currency notes to his servant---Mention of said part of the statement was missing in F.I.R.---Amount in question though was pre-arranged, but numericals of the currency notes were not noted that could enable the complainant or the Police to connect accused with the same in the event of the recovery; however recovery was stated to have been made from accused---Statement by the servant of the complainant had shown that the complainant was receiving calls from accused on regular basis---Such state of affairs was neither patent from the contents of the F.I.R. nor from the statement of the complainant---Record showed that two numbers from which the complainant had received calls belonged to accused, but it was not yet clear that such two numbers were part of those five sims allegedly recovered from accused---Inconsistencies were found as to the number of sims recovered---Recovery of sims by itself created doubts, which needed further inquiry and same was the position with the recovery of currency notes---Case of accused requiring further inquiry, he was enlarged on bail, in circumstances.

2012 PCrLJ 70 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD YASEEN alias BABA LADLA alias BABA
Side Opponent : State

Offence under S.377, P.P.C. though was not compoundable,

Offence under S.377, P.P.C. though was not compoundable, but the compromise effected between the parties could be considered a ground for reduction of sentence(Mujjan Ali Panhwar )

-S. 377---Criminal Procedure Code (V of 1898), S.345---Unnatural offence---Appreciation of evidence---Sentence, reduction in---Compromise---Accused, who was awarded 7 years' R.I., had already served out more than half of the sentence awarded to him---F.I.R. was lodged after about 7 days from conducting of medical examination of accused and such inordinate delay remained unexplained---Offence under S.377, P.P.C. though was not compoundable, but the compromise effected between the parties could be considered a ground for reduction of sentence---Ends of justice would be sufficiently met, if sentence of accused was reduced from 7 years' R.I. to one already undergone by him---Amount of fine was also reduced from Rs.25,000 to Rs.10,000, in circumstances.

Kashif Nadeem alias Pappi v. The State 1992 PCr.LJ 1799 rel.

2013 Y L R 1109
[Federal Shariat Court]
Before Muhammad Jehangir Arshad, J

MUMTAZ ALI---Appellant
Versus
The STATE---Respondent

Application for disinterment of dead body was allowed

Application for disinterment of dead body was allowed (Mujjan Ali Panhwar )

----Ss. 174 & 176---Application for disinterment of dead body---Scope of Ss.174 & 176, Cr.P.C.--- Petitioner/sister of the deceased, submitted application, seeking disinterment of dead body of her deceased brother, on the ground that; her brother did not die natural death, but was murdered by giving poison; and after strangulation by respondents on the instigation of other respondents---Said application was dismissed by the courts below---Validity---Question of exhumation, had to be decided only keeping in view the circumstances relevant to cl.(1) or (b), or (c) of subsection (1) of S.174, Cr.P.C.; there should either be an indication that the information related to the commission of suicide or regarding the killing of a person by another person; or by an animal; or by machinery; or by an accident---Other aspect relevant for disinterment, was the existence of the circumstances raising a reasonable suspicion; that some other persons, had committed an offence in relation to the death of the deceased, required to be disinterred---Petitioner, being the real sister of the deceased, had all the genuine cause to dispel the suspicion of unnatural death of her deceased brother---Scope and intent of S.176, Cr.P.C., was to discover the actual cause of death of the deceased---Subsection (1) of S.176, Cr.P.C., made provision for conducting an inquiry into the cause of death, either instead of or in addition to the investigation held by the Police, if the case was covered by S.174, Cr.P.C.---Even the registration of the FIR, was not an impediment for holding an inquiry into the case of death of deceased under S.176, Cr.P.C.---In the wake of a specific allegation and apprehension of unnatural death of the deceased, the requirements of Ss.174 & 176, Cr.P.C., could not be ignored---Sister of the deceased had a right to know the actual cause of death of her deceased brother, so that her apprehension was laid to rest once and for all---Exhumation of dead body, could be ordered on the request of, or on the information, even a stranger for the purpose to know the actual cause of death, so that criminal machinery, be set in motion---Petitioner, was justified in asking for exhumation of the dead body of the deceased to know the cause of death---Exercise of constitutional jurisdiction being an equitable relief, High Court could validly look into the matter for the ends of justice---High Court setting aside concurrent orders of the courts below, directed Judicial Magistrate to manage for the disinterment of the body of the deceased for the purpose of ascertainment of cause of death.

P L D 2016 Lahore 518
Before Sikandar Zulqarnain Saleem, J

Mst. FOZIA SHABNAM---Petitioner
Versus
ADDITIONAL SESSIONS JUDGE, MULTAN and 8 others---Respondents

Latest bail authority on 23(1) SAA.

Latest bail authority on 23(1) SAA. (Mujjan Ali Panhwar)

S. 497---Penal Code (XLV of 1860), Ss. 353, 324 & 34---Anti-Terrorism Act (XXVII of 199 7), Ss. 6 & 7---Sindh Arms Act (V of 2013), S. 23A---Assault or criminal force to deter public servant from discharge of his duties, attempt to commit qatl-i-amd and common intention, possessing of arm and act of terrorism---Bail after arrest, grant of---Contention of complainant was that accused was arrested on the spot with an unlicensed pistol and was nominated with specific role of making firing upon police, as such he was not entitled to be released on bail---Accused plea was that no independent person was cited as mashir or witness and he was a poor fisherman and that police used to demand fish from him without paying money and on his refusal he had been falsely implicated---Validity---Bail of accused could not be withheld as punishment being offence falling under prohibitory clause of S. 497, Cr.P.C.---High Court observed that accused was arrested after firing on police but it was very astonishing that exchange of firing between accused and police lasted for considerable time in which only accused had sustained injuries and neither police nor their official vehicle was hit and even a single scratch was not caused to motorcycle allegedly recovered from the accused---Ballistic examination report of pistol recovered from accused and empty shells of same, were shown to have been collected from place of incident were also not available in police file and such facts created the prosecution case apparently doubtful---Case registered under S. 23A(i) of Sindh Arms Act, 2013 against the accused was an off shoot of main case---Very presence of accused with alleged weapon was a matter of further inquiry---Accused was granted post-arrest bail, accordingly.

2016 PCrLJN 54 KARACHI-HIGH-COURT-SINDH
Side Appellant : JAVED
Side Opponent : State

Latest bail authority 506/2

Latest bail authority 506/2 (Mujjan Ali Panhwar)

---Ss.498 & 497---Penal Code (XLV of 1860), Ss. 506/2, 337-A(i), 337-F(iv), 147, 148, 149 & 504---Criminal intimidation; shajjah-i-khafifah; ghayr-jaifah/munaqqilah; rioting, intentional insult with intent to provoke breach of the peace; common object---Bail before arrest, grant of---Principles---Rule of consistency--- Applicability--- Co-accused had already been granted post-arrest bail by the trial Court---Case of present accused persons was on better footing than that of the co-accused, and the only difference was that the co-accused had been arrested and granted post-arrest bail, while the present accused were seeking pre-arrest bail---No useful purpose would be served if the pre-arrest bail was refused to the accused persons on any technical ground, as they, after arrest, would again be allowed bail on ground that the co-accused in similar circumstances had already been granted bail---Bail application was allowed accordingly.
Muhammad Ramzan v. Zafrullah and another 1986 SCMR 1380 rel.

2016 Y L R 2507
[Sindh (Sukkur Bench)]
Before Muhammad Iqbal Mahar, J

ZAMIR AHMED and 2 others---Applicants
Versus
The STATE---Respondent

2016 PCr.LJ 1916 (Cyber Crime)

2016 PCr.LJ 1916 (Cyber Crime)
Hacking facebook ID of the complainant and misusing the same for uploading her personal pictures on internet without her permission and disgracing her in the eye of general public, is an offence of heinous nature which ruins the life of the victim. Accused not entitled to grant of bail after arrest.

Suit for recovery of dowery articles against hasband father and brother is maintenable

Suit for recovery of dowery articles against hasband father and brother is maintenable (Mujjan Ali Panhwar )

S. 2(d). & Sched. Item No.8 (dowery )---"Party"---Suit for recovery of dowery articles-Contention that wife was competent to file such suit only against her husband and not against the father, mother and brother of her husband,, was baseless---Provisions of West Pakistan Family Courts Act, 1964 and its Schedule in item No.8 contains "dowery .

2011 SCMR 1591 SUPREME-COURT
Side Appellant : MUHAMMAD ARIF
Side Opponent : DISTRICT AND SESSIONS JUDGE, SIALKOT

Magistrate was not merely a post office to send up all accused persons nominated by the Police for trial, and let off those placed in column No.2 of the challan-

Magistrate was not merely a post office to send up all accused persons nominated by the Police for trial, and let off those placed in column No.2 of the challan---Magistrate, had to apply his conscious mind and thereafter make up his mind to agree or disagree with the Police report---Magistrate would take cognizance of the offence and not the particular person named in the challan (Mujjan Ali Panhwar )

2014 YLR 660 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL MALIK
Side Opponent : State

If Wife had voluntarily left the house of her husband and she was not entitled to maintenance

If Wife had voluntarily left the house of her husband and she was not entitled to maintenance (Mujjan Ali Panhwar)

--S. 5, Sched---Suit for dissolution of marriage, recovery of maintenance charges and dower---Cruelty---Scope---Cruel attitude was not confined only to the extent of physical violence but it would include mental torture, hateful attitude of husband or other inmates of the house and also included the circumstances in presence of which wife was forced to abandon the house of her husband---Wife had failed to prove cruelty in the present case---Family Court had correctly passed decree on the ground of 'khula'---Husband was bound to pay maintenance charges to the wife till she was faithful to him and lived with him and if she had voluntarily left the house of her husband then she was not entitled to maintenance charges---Wife had voluntarily left the house of her husband and she was not entitled to maintenance charges---Dower once paid could not be demanded for second time---Appeal filed by the wife was partly accepted to the extent of maintenance charges---Decree of maintenance charges passed by the Shariat Court was set aside.
2016 YLR 371
AZHARBASHIR---Appellant
Versus
SADIASHAFIQUE---Respondent

Ultimate decision as to whether person was guilty or not, rested with the court of law and not with the police

Ultimate decision as to whether person was guilty or not, rested with the court of law and not with the police (Mujjan Ali Panhwar )

Ss.169, 170 & 173 ---Investigation of case---Crux of Ss.169, 170 & 173 , Cr.P.C., was that the Investigating Officer had to submit the final report with regard to the result of his investigation for taking cognizance, or passing order under S.173 , Cr.P.C.---Police, could not adjudicate the guilt or innocence of the offender, because it was not their duty to decide as to which party was wrong or right---Investigation was required to be completed without unnecessary delay or impediment and as soon as, it was complete, the challan was required to be submitted not late r than 14 days---Ultimate decision as to whether person was guilty or not, rested with the court of law and not with the police.

2016 YLR 37 KARACHI-HIGH-COURT-SINDH
Side Appellant : ZEESHAN MUSTAFA LASHARI
Side Opponent : PROVINCE OF SINDH

Unnecessary adjournments creating hurdles in judicial system may shake confidence of concerned witnesses, which should be avoided at all costs

Unnecessary adjournments creating hurdles in judicial system may shake confidence of concerned witnesses, which should be avoided at all costs.(Mujjan Ali Panhwar)

---S. 344---Frequent adjournment---Effect---Frequent adjournments mostly sought on flimsy grounds contribute to hardship, inconvenience and expenses to parties and witnesses---Witnesses come to assist Court to dispense justice, who sacrifice their time feel inconvenience rather frustration and unhappiness if their cases adjourn, as they are required to come to Courts repeatedly, which amount to provide opportunities to opposite parties to threaten them not to depose truth---Unnecessary adjournments creating hurdles in judicial system may shake confidence of concerned witnesses, which should be avoided at all costs.

2015 P Cr. L J 535
[Sindh]
Before Syed Muhammad Farooq Shah, J

M. IQBAL---Applicant
Versus
The STATE---Respondent

Wife is not competent to file complaint against her husband for polygamy

Wife is not competent to file complaint against her husband for polygamy (Mujjan Ali Panhwar)

----S.6---West Pakistan Rules under the Muslim Family Laws Ordinance, 1961, R. 21---Criminal Procedure Code (V of 1898), S.561-A---Polygamy---Quashing of proceedings, application for---Respondent/ complainant wife in her complaint had alleged that applicant/husband had contracted second marriage without her prior permission and consent---Wife had also alleged that husband had not even filed any application to the Nazim Union Council for obtaining permission of Arbitration Council---Complaint was returned by the Civil Judge and Judicial Magistrate, with the direction to file same before the Union Council concerned---Appellate Court however, set aside order of the Trial Court and remanded the' complaint with the directions to record the statement of wife---Husband who filed application for quashing of the proceedings had contended that provisions of S.6 of Muslim Family Laws Ordinance, 1961 did not contemplate an action on behalf of private person, which could only be initiated on behalf of the Union Council---Validity---As to what had been provided under the law, had to be followed in the same manner and an aggrieved party could avail normal. remedies by approaching the Trial Court---Notwithstanding, it was not the intention of lawmakers that an aggrieved party under S.6(5) of the Muslim Family Laws Ordinance, 1961 should approach the court of law for redress, except that Union Council would have the jurisdiction over the subject in the event of Polygamy as said section did not contemplate delegation of authority to the private person for initiating an action on behalf of the Union Council---In the present case, proceedings initiated by the Trial Court in the complaint of wife, were found to be devoid of lawful authority, it would be an exercise in futile to allow the private complaint to linger on which would tantamount to be patent illegality and flagrant abuse of process of law---Bar existed in entertaining a private complaint directly filed by the wife against the husband, which would amount to violation of the principles of justice, and required interference for exercise of power of quashing the proceedings--Impugned order was set aside and proceedings pending before the Trial Court were directed to be quashed.

Subadar Malik Sher Muhammad v. The State 1986 PCr.LJ Qeutta 1510; Zakir Hussain Siddiqui v. Mst. Nazim Bano and others 1989 CLC Kar. 1062; Faheemuddin v. Sabeeha Begum PLD 1991 SC 1074 and Kausar Perveen v. The State 2004 YLR 2242 ref.

2010 M L D 470
[Karachi]
Before Mrs. Qaiser Iqbal, J

ATIQ-UR-REHMAN---Applicant
Versus
Mst. SADIA and another---Respondents.

Re marry would not disentitle mother from retaining the custody of minor

Re marry would not disentitle mother from retaining the custody of minor (Mujjan Ali Panhwar )

S. 25---Constitution of Pakistan, Art.199---Constitutional petition---custody of minor ---Welfare of minor ---Determination---second marriage of mother---Effect---Scope---Courts below handed over custody of minor to father---Validity---Courts below took into consideration the second marriage of mother and age of minor ---While deciding custody of minor , welfare of minor , and nothing else, was the paramount consideration---Courts below were not justified in disturbing the custody of minor ---Father admitted that suit for recovery of maintenance allowance of the minor had been decreed against him---Real mother could not be deprived of her son due to her second marriage ---Father filed application for custody of minor subsequent to passing of decree of maintenance allowance against him---Father was least interested in welfare of minor , rather, he filed the application for custody of minor in order to frustrate the decree of maintenance allowance passed against him---minor was growing up properly and getting proper education in a private school---minor was living with his mother since birth and had developed love and affection for her---Disturbance in custody at this stage would psychologically tell upon his personality in future---No substitute to real mother---Lap of mother was cradle of God---Remarriage of the mother, ipso facto, would not disentitle her from retaining the custody of minor ---Poverty of mother was no ground to disentitle her from the custody of the minor ---Islamic law was subservient to the welfare of the minor ---Petition was allowed---Application of father for custody of minor was dismissed.

2016 CLC 1460 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Mst. RABIA BIBI
Side Opponent : ABDUL QADIR

law acquittal 489-f

law acquittal 489-f (Mujjan Ali Panhwar )

S. 489 -F---Criminal Procedure Code (V of 1898), S.417 (2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Dishonouring of a cheque, which should be towards fulfilment of an obligation, or repayment of loan was an essential ingredient for bringing the case within the ambit of S.489 -F, P.P.C.---Complainant, had failed to bring forward any proof which would substantiate that cheque in question was for the fulfilment of any obligation and had completely denied any sort of record regarding the alleged transaction---Complainant was running the business of grains, but he was not keeping any record to establish the transaction---Mere possession/issuance of a cheque was insufficient for convicting accused, but said cheque was to be backed by certain obligation or a loan, which was missing in the present case---Cheque in question, having repeatedly been denied by accused by stating that they had no business transaction with the complainant, heavy burden lay upon the complainant to discharge the onus of proof completely, which he had failed to do---Nothing was wrong with the impugned judgment, as the same was in consonance with law and facts---Appeal was dismissed, in circumstances.
2015 YLR 691 KARACHI-HIGH-COURT-SINDH
Side Appellant : SHAHID HUSSAIN
Side Opponent : PREM KUMAR

No compromise will be allowed in non compoundable offence

No compromise will be allowed in non compoundable offence ( Mujjan Ali Panhwar )

----S.345---Compounding of offence---Offence against individual/ society---Distinction---Offence against individual cannot be equated with that of an offence against society---Individual does not have any right to compound the offence which in fact was against the society and not against him.

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

----S. 345(6) & (7)---Penal Code (XLV of 1860), Ss. 302(b), 337-A(i), 337-F(i) & 459---Qatl-i-amd, Shajjah-i-Khafifah, Damihah and Hurt while Trespass---Compounding of offence---Accused were convicted and sentenced for imprisonment of various terms by Trial Court---Accused sought their acquittal on the basis of compromise effected between the parties---Validity---Offence under S. 495, P.P.C. was an independent offence which had its own punishment in addition to punishment for causing Qatl or causing hurt or attempt to cause Qatl or hurt therefore, such offence could not be merged into main offence---When one was tried for two different offences and awarded punishments in both of them, then competence of one to compound one offence could not affect legality of sentence awarded for other independent offence by competent court of law---Likelihood of failure of prosecution to prove charge was no ground to make a non-compoundable offence as compoundable---Attempt to compound an offence, even if failed, could not bring any consequence on merits of the case however, failure of prosecution/complainant to establish charge could give certain rights to accused against complainant/prosecution---High Court accepted compromise to the extent of convictions awarded under Ss. 302(b), 337-A(i) & 337-F(i), P.P.C. while for the offence under S. 459, P.P.C. the same was declined---Application was allowed accordingly.

2004 PCr.LJ 736; 2007 MLD 1269; PLD 2008 Kar. 420; Muhammad Rawab v. State 2004 SCMR 1170; Muhammad Tufail v. Sessions Judge Attock PLD 2004 SC 89 and Umer Hayat v. The State 1990 PCr.LJ 125 ref.
2016 M L D 580 [Sindh]

Before Salahuddin Panhwar, J
MOHARRAM alias MAROO---Appellant
Versus
The STATE---Respondent

Bail dismissed for offence of 34 ppc common intention

Bail dismissed for offence of 34 ppc common intention (Mujjan Ali Panhwar )
---S. 34---Criminal Procedure Code (V of 1898), S.497---Common intention---Principle of vicarious liability---Applicability---Bail---To constitute an offence under S.34, P.P.C., it was not required that a person, should necessarily perform any act with his own hands---If several persons had the common intention of doing a particular criminal act, and if in furtherance of their common intention, all of them were jointly together, and aided or abetted each other in the commission of an act then one, out of three, could not actually with his own hands, do the act, but if he would help by his presence or by other act in the commission of an act, he would be held to have himself done that act within the meaning of S.34, P.P.C.---Principle of vicarious liability could be looked into even at bail stage, if from the FIR, accused appeared to have acted in pre-concert or shared to community of intention with his co-accused, who caused fatal injury to deceased, then he could also be saddled by constructive or vicarious liability.

2015 P Cr. L J 1531[Sindh]
Before Muhammad Ali Mazhar, J

RAB NAWAZ and 2 others---Applicants
versus
The STATE---Respondent

جيڪڏهن سرڪاري گواه شاهدي لا۽ پيش نه ٿيي ته ڪورٽ کي اختيار آ ته انجي سيلري روڪي ڇڏي ۽ جي پرائويٽ شاهد نٿو اچي ته انجي ملڪيت قبضي وٺي ڪورٽ کپائي سگهي ٿي.

جيڪڏهن سرڪاري گواه شاهدي لا۽ پيش نه ٿيي ته ڪورٽ کي اختيار آ ته انجي سيلري روڪي ڇڏي ۽ جي پرائويٽ شاهد نٿو اچي ته انجي ملڪيت قبضي وٺي ڪورٽ کپائي سگهي ٿي.

Salary can be stopped by court of officials persecution witness he fails to appear before court for evidence after recoding the statement of Process Server. (Mujjan Ali Panhwar)

(a) Penal Code (XLV of 1860)---
---Ss. 324/148/149/109---Criminal Procedure Code (V of 1898), S.561-A---Constitution of Pakistan, Art.199---Attempt to commit qatl-e-­amd, rioting armed with deadly weapons, abetment---Constitutional petition---Prosecution evidence closed for non-appearance of prosecution witnesses---Validity---Record had revealed that on a number of dates of hearing statements of prosecution witnesses could not be recorded due to non-attendance of accused before the court---Trial Magistrate had been issuing orders for summoning the prosecution witnesses through non-bailable warrants mechanically without ascertaining and verifying if the same were in fact issued and served on the witnesses---Trial Court did not appear to have adopted any coercive measures such as attaching the properties of the prosecution witnesses under Ss.87/88, Cr. P. C. ---Trial Courts were not helpless in procuring attendance of witnesses and dealing with the process serving agencies which neglected the discharge of their duties---Petitioner being an injured witness in the case was an affected person and he was fully competent to assail the impugned orders before the higher' forum---Constitutional petition was converted into petition under S.561-A, Cr.P.C. by the High Court in the interest of justice--Impugned orders closing the prosecution evidence in the case were set aside in circumstances with the direction to petitioner to produce all the private witnesses in the Trial Court within a specified period---Trial Court was directed to adopt all possible measures to procure attendance of prosecution witnesses to conclude the trial possibly within one month---Petition was allowed accordingly.

(b) Criminal trial---

----Closing of prosecution evidence due to non-appearance of prosecution witnesses in Trial Court and failure of process serving agency to produce them in court---Guidelines for Trial Courts for action before closing prosecution -evidence.

If the prosecution witnesses do not appear and process serving agency fails to produce them before closing prosecution evidence, trial court was to follow the following guidelines.--

(a) The Presiding Officer shall verify if the summons/notices or the warrants of the prosecution witnesses are in fact issued and dispatched by Ahmad of the court.

(b) If the government officials, cited as prosecution witnesses do not appear before the court, after accepting service through summons/notices, the Presiding Officer may adopt coercive measures such as attachment of salary and also proceed to attach property of the private prosecution witnesses under S.87/88, Cr.P.C. after recording the statement of Process Server.

(c) In case service upon the prosecution witnesses is not effected by the subordinate staff, then the summons/notices or warrants of arrest of prosecution witnesses may be entrusted to the officers of the rank of A.S.-I. or S.I. of the Police Station concerned.

(d) If the Process Server is negligent in effecting service upon prosecution witnesses Presiding Officer may proceed against him under the provisions of Police Order, 2002 and also refer the matter to the District Police Officer concerned for initiating departmental proceedings under Efficiency and Discipline Rules and

(e) The Presiding Officer may also refer the matter to the District and Sessions Judge, for taking upon the matter in the monthly meeting of the Criminal Justice Coordination Committee.

P L D 2011 Lahore 551
Before Abdul Waheed Khan, J

MUHAMMAD SHAFI---Petitioner
Versus
ADDITIONAL SESSIONS JUDGE, KHARIAN DISTRICT GUJRAT and 8 others---Respondents

ايڪس پارٽي (ex parte) معني يڪطرفو فيصلو ڪنهن سول ڪيس م اگر ڊفينڊنٽ (ڇڪايل ڌر) نوٽيس تي نه اچي ته ڪورٽ کي پاور آ اها (ex parte judgment ) يڪطرفو فيصلو پلينٽف (ڪيس ڪندڙ) جي حق م جاري ڪري سگهي ٿي.

ايڪس پارٽي (ex parte) معني يڪطرفو فيصلو ڪنهن سول ڪيس م اگر ڊفينڊنٽ (ڇڪايل ڌر) نوٽيس تي نه اچي ته ڪورٽ کي پاور آ اها (ex parte judgment ) يڪطرفو فيصلو پلينٽف (ڪيس ڪندڙ) جي حق م جاري ڪري سگهي ٿي.

----Ex parte decree---Duty of Court---Scope---While passing ex-parte decree, it is the duty of court to see whether plaintiff is entitled to relief asked for and if so to what extent. (Mujjan Ali Panhwar)

2008 C L C 120 [Karachi]
Before Khilji Arif Hussain, J

Messrs AL-PAK GHEE MILLS through Managing Partner----Plaintiff
Versus
Messrs ZEESHAN TRADERS through Proprietor--Respondent

link /Incharge/Vacation judge in absence of Presiding Officer, power.

link /Incharge/Vacation judge in absence of Presiding Officer, power s of (Mujjan Ali Panhwar)

---Scope---Such judge having jurisdiction could perform all judicial functions, record evidence of parties and pass any order on merits within four corners of law.

2012 MLD 783 KARACHI-HIGH-COURT-SINDH Side Appellant : MUHAMMAD SAEED SHAH Side Opponent : Mst. PHILPANA

PLD 2008 Karachi 492-S. 497---Bail, grant of---Powers of Magistrate---Magistrate cannot grant bail unless the matter falls under one of the following categories

PLD 2008 Karachi 492

Before Khalid Ali Z. Qazi, J

THE STATE---Petitioner

Versus

MUHAMMAD AYOOB---Respondent

Criminal Suo Motu Revision No.79 of 2002, decided on 23rd June, 2008.

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

----S. 497---Bail, grant of---Powers of Magistrate---Magistrate cannot grant bail unless the matter falls under one of the following categories viz., (i) if the person seeking bail has been placed under actual custody; or (ii) he appears in answer to a process issued by the Court; or (iii) he is brought before the Court by the police or by some other arresting authority---There is no legal concept of a "judicial custody" by way of a voluntary surrender before the Court---Unless and until the accused is under actual restraint or custody by the police or other law enforcing authorities/agencies, he cannot be construed to be in "custody".

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5: Muhammad Saeed v. The State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali .v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.

(b) Judicial custody--

----Connotation---There is no legal concept of a "judicial custody by way of a voluntary surrender before the Court---Unless and until the accused is under actual restraint or custody by the police or other law enforcing authorities/agencies,' he cannot be construed to be in "custody".

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

----S. 497(5)-Penal Code (XLV of 1860), Ss.471/468/420---Cancellation of pre-arrest bail granted by Judicial Magistrate, refusal of---Accused had surrendered himself before the Judicial Magistrate who vide impugned order had admitted him to bail---Validity---Held, the order of the Judicial Magistrate admitting the accused to bail was not in consonance with law, since in essence the Magistrate had granted bail before arrest to him, when he had no such power---There was no concept of a "judicial custody" by way of 'a voluntary surrender before the Court---Unless and until the accused was under actual restraint or custody by the police or other law enforcing agencies, he could not be construed to be in "custody"---However, the case was not fit to cancel the bail granted to accused at such a belated stage for the very simple reason that on account of the Record and Proceedings having been consigned to High Court, the trial had been delayed by 6/7 years, for which the accused could not be attributed any blame---Even the Prosecutor-General had conceded that cancellation of bail at such a belated stage would cause undue hardship to the accused---Accused had been appearing on every date before High Court---Bail allowed to accused was not cancelled in circumstances.

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ 17; Hidayat ullah Khan v. The Crown PLD 1949 Lah. 21; The Crown v. Khsuhi Muhammad PLD 1953 FC 170; Sadiq Ali v. The State PLD 1966 SC 589; Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003; Juma Khan v. The State PLD 1960 Pesh. 25; Hakim Ali Zardari v. The State PLD 1998 SC 1; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.

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

---Ss. 497/498---Pre-arrest bail---Magistrate is not empowered to grant bail before arrest---Caveat on the legal plane added by High Court ,to take measures and precautions in respect of such powers of Magistrate after elucidating the concept enshrined in the settled law.

Muhammad Sharif v. The State 1979 PCr.LJ Note 7 page 5; Muhammad Saeed v. The State 1980 PCr.LJ 17; Wajid Ali v. The State 1983 PCr.LJ 183; Raza Muhammad v. The State 1995 PCr.LJ 1190 and Taj Muhammad v. The State PLD 1976 Pesh. 112 ref.

Shahaddat Awan, Prosecutor-General and Amicus Curaie for the State.

F. Karim Durrani for Respondent.

Date of hearing: 23rd June, 2008.

JUDGMENT

KHALID ALI Z. QAZI, J.---The brief facts giving rise to the present matter are that an F.I.R. No.77 of 2001 dated 11-4-2001 was lodged by one Abdul Majeed, the complainant, against one Muhammad Ayub, the accused, alleging commission of offences covered under sections 471, 468 and 420 of the P.P.C. The accused Muhammad Ayub surrendered himself before the Judicial Magistrate-II, Karachi (West), who vide order dated 16-4-2001 and while relying upon a judgment of the Lahore High Court reported as Muhammad Sharif v. The State 1979 PCr.LJ Note 7, page 5 was pleased to admit the accused Muhammad Ayub to bail.

2. Aggrieved against the grant of bail before arrest by the learned JM-II, the complainant i.e. Abdul Majeed filed a Criminal Miscellaneous Application No.45 of 2001 under section 497(5) of the Cr.P.C. seeking cancellation of bail, which was dismissed vide order dated 31-10-2001 by the learned IVth Additional Session Judge, Karachi (West). Being further aggrieved by the order of the learned Additional Session Judge the complainant preferred Criminal Revision Application No.7 of 2002 before this Court.

3. It seems that the complainant Abdul Majeed lost interest and did not pursue the Criminal Revision Application No.7 of 2002. Thus vide order dated 15-4-2002 this Court' was pleased to convert Criminal Revision Application No.7 of 2002 into a suo motu criminal revision, which was thereafter numbered by the office as Criminal Suo Motu Revision No.79 of 2002. In converting the revision into a suo motu action, rather than dismissing it for non-prosecution, the Court in its order dated 15-4-2002 had pondered that the Judicial Magistrate had no power to grant bail before arrest. Hence notice was issued to the accused as to why the bail before arrest granted by the Judicial Magistrate ought not to be cancelled and the said accused remanded to custody.

4. The prime question posed in the present proceedings is whether the Judicial Magistrate possesses the power to grant bail before arrest and if no such power vests in .him, what should be the consequence, especially after a lapse of 7 years when the impugned order was passed by learned Judicial Magistrate.

5. I have heard Mr. F. Karim Durrani, the learned counsel for the accused so also Mr. Shahadat Awan, who first appeared as an Amicus curaie and then assisted this Court as the Prosecutor General.

6. In order to dilate upon the issue as to whether the Magistrate possesses the power to accord bail before arrest, in my opinion the case of Muhammad Sharif v. The State PLJ 1978 Criminal Case (Lahore) 553 = 1979 PCr.LJ Note 7 at page 5, serves as a starting point. In this case the petitioner sought bail before arrest directly from the Lahore High Court which was dismissed with the observations that even the Magistrate had ample jurisdiction to admit a person to bail before arrest. In this respect Muhammad Afzal Zullah J., as he then was, observed as follows:--

"2. Learned counsel states that the petitioners cannot move for bail before arrest before a Magistrate. Insofar as the technical phraseology "bail before arrest" used in some rulings is concerned, this might, on face, appear to be correct; but the provisions contained in subsection (1) of section 497, Cr.P.C. permits on accused person to appear before a Court of Magistrate even prior to his physical arrest and thus after presenting himself before the Court seek bail under sub-section (1) of section .497, Cr.P.C. For all practical purposes, if the Magistrate grants bail it would be bail before physical arrest."

In the afore-cited case, the learned counsel for the petitioner had clearly taken the stance that the Magistrate had possessed no power to accord bail before arrest, which position was refuted by the Court. The Court had observed that the Magistrate was empowered to grant bail before arrest even when the accused had surrendered himself before the Court of the Magistrate prior to his physical arrest; and the grant of bail by the Magistrate constituted bail before arrest.

7. It is, an irony of fate that the same point came up for reconsideration before the same learned Judge i.e. Muhammad Afsa Zullah, J., as he then was, in the case reported as Muhammad Saeed v. The State 1980 PCr.LJ 17. In this case while the learned Judge was pleased to observe, that his observations in the earlier judgment of Muhammad Sharif v. The State (cited supra) were not contrary to law, but relying upon Hidayatulalh Khan v. The Crown PLD 1949 Lahore 21. The Crown v. Khushi Muhammad PLD 1953 FC 170, Sadiq Ali v. The State PLD 1966 SC 589 and Muhammad Ayub v. Muhammad Yaqoob PLD 1966 SC 1003, the learned Judge was pleased to revisit the earlier judgment of Muhammad Sharif authored by him, holding that the Magistrate could only grant bail in the following circumstances:

"(a) if the person seeking bail has been placed under actual custody;
or

(b) he appears in answer to a process issued by the Court; or

(c) he is brought before the Court---.

(i) by the Police; or

(ii) by some other arresting authority."

8. The categories in which the Magistrate could grant bail, as under scored above, have been deciphered from the pronouncement of the 'Hon'ble Supreme Court in the case of Sadiq Ali v. The State PLD 1966 SC 589. A bare perusal of the above except would confirm that in the first category bail could only be granted if the person was in actual custody; the second category deals with a situation when a person appears in answer to a process issued by the Court. The grant of bail in this category is only relatable to ensuring appearance. In the third category either the police or some other law enforcing agency brings a person before the Magistrate. This really means that there is no scope for a person to contend that his voluntarily appearance before the Court should be construed as "judicial custody". The concept of "custody" as enunciated in The Crown v. Khushi Muhammad PLD 1953 FC 170 connotes that the person is under some actual restraint. In other words, there is no concept of constructive custody before the Court or a Judge by way of a voluntary surrender. To further make out this point reference is invited to Jumma Khan v. The State PLD 1960 Pesh. 25 wherein it was held that the appearance before the Court mentioned in section 497 of the Cr.P.C. is appearance in compliance with a process issued by a Court. It was further observed that where no process for_ the appearance of an accused person is issued by any Court and he voluntarily makes appearance, he is neither under any form of restraint nor has he any process for his restraint. Although the judgments in The Crown v. Khushi Muhammad and Jumma Khan v. The State were delivered at the time when the concept of bail before arrest was till in its embryonic state in Pakistan, the said two judgments are still good authority for the proposition and to the extent that a voluntary surrender per se before the Court of law cannot be construed as "custody". A word of caution is required to be placed. The latter two judgments in negating the concept of bail before arrest are no longer good law in the view of the development of the law of bail before arrest in our country. One may in this respect refer to the dissenting opinion of Mukhtar Ahmed Junejo, J., as he then was, in Hakim Ali Zardari v. The State PLD 1998 SC 1 wherein the learned Judge was pleased to observe that the law of bail is not static but rather grows so as to mouldy itself with the exigencies of time. Although the opinion of Mukhtar Ahmed Junejo, J., as he then was, in the referred case was a minority view, the observations just referred hold good as a general proposition of law. In other words, though the ultimate result as reached by the learned Judge may not be good law, being the minority view, the referred observations with regards the law of bail being a dynamic concept seems to be well settled.

9. Therefore, I hold as follows:--

(a) a Magistrate cannot grant bail unless the matter falls under one of the categories mentioned in the excerpt from Muhammad Saeed v. The State 1980 PCr.LJ 17 reproduced in para. 7 above.

(b) there is no legal concept of a "judicial custody" by way of a voluntary surrender before the Court. Unless and until the accused is under actual restraint or custody by the police or other law enforcement authorities/agencies he cannot be construed to be in "custody".

10. In light of the above, I have do hesitation to observe that the order of the learned Judicial Magistrate dated 16-4-2001 admitting the accused to bail was not in consonance with law since in essence the Magistrate had granted bail before arrest when he had no such power as held above. But having said so this is not a fit case to cancel the bail for the very simple reason that on account of the record and proceeding having been consigned to this Court the trial has been delayed by 6-7 years. For this, the accused cannot be attributed any blame. Even the learned Prosecutor General/Amicus Curaie Mr. Shahadat Awan has submitted that it is not a fit case to cancel the bail at such a belated stage since otherwise the said cancellation would cause undue hardship to the accused. The learned counsel for the accused has maintained that the accused has appeared on every date before this Court and has even executed a PR bond before this Court apart from submitting surety/security before the Magistrate. In view of the above the bail is not cancelled and the PR bond and. any other surety/security is kept intact.

11. Let the office remit the Record and Proceedings back to the learned trial Court immediately whereafter it is expected that the trial Court shall expeditiously complete the trial and pronounce judgment.

12. Before parting I wish to add a caveat on the legal plane. I have been able to lay my hands on Wajid Ali v. The State 1983 PCr.LJ 183 and Raza Muhammad v. The State 1995 PCr.LJ 1190 where in certain observations give an impression that the Magistrate is empowered to grant bail before arrest. Such observations so also the judgment/order in Muhammad Shaif v. The State PLJ 1978 criminal Cases (Lahore) 553 = 1979 PCr.LJ Note 7 at page 5 are found to be per incurium, not being the correct statement of law. The observation in Muhammad Saeed v. The State 1980 PCr.LJ 17 to the effect the Muhammad Sharif's case (cited supra) is not contrary to law is again per incurium. Barring such observation, the judgment in Muhammad Saeed v. The State 1980 PCr.LJ 17 correctly states the law. In order to make the discussion complete, reference is invited to the case of Taj Muhammad v. The State PLD 1976 Peshawar 112. In this case petitioner had applied for a bail before arrest directly to the Peshawar High Court which was declined on the ground that before approaching the High Court the petitioner should first exhaust the remedy before the lower Court. It was further observed that it was only in exceptional cases that a petitioner could directly move for bail before the High Court. In dismissing the petition the Court was pleased to suggest that the legislature had conferred the power to grant bail to the Magistrate at the initial stage. The relevant excerpt in this regard from the above judgment of the Peshawar High Court is reproduced as follows:--

"To repeat it with emphasis, I must say that though the discretion under section 498 is absolute, the High Court and for that matter the Court of Session must exercise it judicially and since the Legislature has chosen to introduce 'the initial stage of dealing with the question of bail to Magistrates and while the Magistrates have ample power to exercise their discretion, in all matters barring very few, the High Court ought not to grant bail in such cases except for exceptional and for very special reasons. For these reasons, I do not consider this a. fit case for bail. The petition thus stands dismissed."

If the above judgment of the Peshawar High Court is construed as conferring upon the Magistrate the power to grant pre-arrest bail, it will face the same fate as' the case of Muhammad Sharif v. The State i.e. the Peshawar High Court judgment will also have to be reckoned as per incurium. However, in my humble opinion the above extract from the judgment of the Peshawar High Court is to be understood as only equipping the Magistrate with the power to grant bail after arrest in offences for which the Magistrate has the jurisdiction. The above observations, in my humble opinion, do not lay down the principle that the Magistrate has the power to grant pre-arrest bail. .

13. Let a copy of this order be made available to the learned Registrar of this Court, Secretary Law, Government of Sindh, Home Secretary, Government of Sindh and Secretary Prosecution Service Department, Government of Sindh, who in turn are directed to circulate this order to all the relevant functionaries. The Registrar of this Court is in particular directed to circulate a copy of this order to all the Judicial Magistrates in the Province of Sindh.

14. Before parting with the matter I wish to express my sense of gratitude for invaluable assistance rendered by Mr. Shandat Awan, who first appeared 'as Amicus Curaie and then assisted this Court as the Prosecutor General Sindh.

N.H.Q./S-55/K Petition dismissed.