( Family Court- Maintainance )
If father or grand father too poor to
pay maintainance,so family court issue direction to baitul maal or
zzakat council to pay minors maintainance instead of sending defendents
to jail.
PLD 2012 Lhr 445
Thursday, 25 May 2017
Monday, 17 April 2017
case law on Bail in 426
S.426---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3
& 4---Manufacturing, owning or possessing intoxicant---Suspension of
sentences---Application for---Sentence awarded to accused was two years
and the revision petition was not going to be fixed for final hearing
in the near future-Accepting application, sentence of accused was
suspended and he was admitted to bail.
2010 YLR 1396 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUNIR AHMAD
Side Opponent : State
2010 YLR 1396 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUNIR AHMAD
Side Opponent : State
case law on appeal in 3/4 PEHO
-Arts. 3 & 4---Constitution of Pakistan (1973),
Art.203-F---Reappraisal of evidence---Benefit of doubt---Inimical and
interested witnesses---Allegation against accused/appellant was that
pursuant to tip- police party, after getting search warrants from Area
Magistrate, conducted raid and arrested accused who led to recovery of
2500 grams of heroin---Federal Shariat Court maintained conviction and
sentence passed on accused by Trial Court---Accused contended that prior
to registration of case against him a
criminal case under Ss.452, 341, 342, 384, 148 & 149; P.P.C. was got
registered against police including S.H.O. of concerned police station
at the direction of High Court; that accused played an active role in
registration of case against police and he was cited as witness therein
and that habeas corpus petition had been filed in High Court on behalf
of accused and in order to justify his illegal detention, police falsely
involved him in the present case and also in some other cases of
identical nature---Validity---Discrepant prosecution evidence had been
furnished against accused by inimical and interested
witnesses---Documentary evidence transpired that accused was harassed to
such an extent that he was compelled to file suit for damages and writ
petition through his wife for his release from illegal detention of
police---Police was so much poised against accused that he was involved
in so many other cases---Accused had continuously insisted on
investigation of case against police by some other investigation agency
which fact further aggravated grievance of police against
him---Prosecution did not prove case against accused beyond reasonable
doubt---Accused was entitled to acquittal on ground of benefit of
doubt---Appeal was accepted.
2007 SCMR 1288 SUPREME-COURT
Side Appellant : RASHID AHMED alias PAPPU
Side Opponent : State
2007 SCMR 1288 SUPREME-COURT
Side Appellant : RASHID AHMED alias PAPPU
Side Opponent : State
case law on 514 crpc
Impugned
order passed by the Trial Court was not sustainable on two grounds;
firstly that order of forfeiture of. surety bond was passed when surety
was no more alive and same having been passed in violation of S.514(6),
Cr.P.C., was not sustainable; secondly, penalty could be imposed upon
the surety only when it was proved that absence of accused from the
court was intentional and was not for the reason beyond the control of
accused
S. 514---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Forfeiture of surety bond---Applicant stood surety for accused and executed surety bond in the sum of Rs.5,00,000---Accused having failed to appear in the court on date of hearing, the Trial Court issued notice to applicant/surely under S.514, Cr. P. C., but prior to service of notice, applicant/surety died---Widow of the surety appeared before the court submitted that her husband had died and she was a poor lady and requested for return of the bond amount deposited by her deceased husband in the court, but the Trial Court did not agree with the submission of the widow and imposed penalty of half the amount of surety bond viz. Rs.2,50,000---Trial Court. further ordered that the remaining half amount along with interest be returned to the 'widow of the applicant/surety---Validity---Impugned order passed by the Trial Court was not sustainable on two grounds; firstly that order of forfeiture of. surety bond was passed when surety was no more alive and same having been passed in violation of S.514(6), Cr.P.C., was not sustainable; secondly, penalty could be imposed upon the surety only when it was proved that absence of accused from the court was intentional and was not for the reason beyond the control of accused---In the present case it had come on record that accused was taken to U.S.A. and was detained there and he could not attend the court---Absence of accused being for the reason beyond his control, no penalty could have been imposed upon applicant/surety, even on that count---Impugned order was set aside with the direction that bail amount of Rs.5,00,000 lying in the court be paid to widow of the surety on production of succession certificate from the competent court of law.
S. 514---Prohibition (Enforcement of Hadd) Order (4 of 1979), Arts.3/4---Forfeiture of surety bond---Applicant stood surety for accused and executed surety bond in the sum of Rs.5,00,000---Accused having failed to appear in the court on date of hearing, the Trial Court issued notice to applicant/surely under S.514, Cr. P. C., but prior to service of notice, applicant/surety died---Widow of the surety appeared before the court submitted that her husband had died and she was a poor lady and requested for return of the bond amount deposited by her deceased husband in the court, but the Trial Court did not agree with the submission of the widow and imposed penalty of half the amount of surety bond viz. Rs.2,50,000---Trial Court. further ordered that the remaining half amount along with interest be returned to the 'widow of the applicant/surety---Validity---Impugned order passed by the Trial Court was not sustainable on two grounds; firstly that order of forfeiture of. surety bond was passed when surety was no more alive and same having been passed in violation of S.514(6), Cr.P.C., was not sustainable; secondly, penalty could be imposed upon the surety only when it was proved that absence of accused from the court was intentional and was not for the reason beyond the control of accused---In the present case it had come on record that accused was taken to U.S.A. and was detained there and he could not attend the court---Absence of accused being for the reason beyond his control, no penalty could have been imposed upon applicant/surety, even on that count---Impugned order was set aside with the direction that bail amount of Rs.5,00,000 lying in the court be paid to widow of the surety on production of succession certificate from the competent court of law.
2008 YLR 2699 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL SATTAR
Side Opponent : State
Side Appellant : ABDUL SATTAR
Side Opponent : State
Benefit of doubt faing to to produce Entry
Art.
4---Failure to produce Roznamcha Entry---Effect---Failure of
prosecution to produce Roznamcha entry in evidence makes the
authenticity of the whole prosecution case doubtful, about the
proceedings taken by raiding party.
2010 PCrLJ 157 FEDERAL-SHARIAT-COURT
Side Appellant : WAHAB ALI
Side Opponent : State
2010 PCrLJ 157 FEDERAL-SHARIAT-COURT
Side Appellant : WAHAB ALI
Side Opponent : State
Sunday, 16 April 2017
case law on family suit Jurisdiction
Family
Court where the wife resides, shall have the exclusive jurisdiction
over all such matters. further Provisions of Ss.16 to 20, C.P.C. stood
excluded from the proceedings before the Family Court, thus, the
question of its territorial jurisdiction would never arise,
R. 6---Family Courts Act (XXXV of 1964), S. 17 --- Civil Procedure Code (V of 1908), Ss. 16 to 20---Family Court---Territorial jurisdiction---"Court within the local limits of which the wife ordinarily resides"---Family Court alone had exclusive jurisdiction to deal with all the matrimonial disputes, whatever their nature, irrespective of territorial jurisdiction, provided that the Family Court where the wife resides shall have the jurisdiction to entertain such suits/claims---Provisions of Ss.16 to 20, C.P.C. stood excluded from the proceedings before the Family Court, thus, the question of its territorial jurisdiction would never arise, provided that the Family Court where the wife resides, shall have the exclusive jurisdiction over all such matters.
2016 PLD 613 SUPREME-COURT
Side Appellant : Mst. YASMEEN BIBI
Side Opponent : MUHAMMAD GHAZANFAR KHAN
R. 6---Family Courts Act (XXXV of 1964), S. 17 --- Civil Procedure Code (V of 1908), Ss. 16 to 20---Family Court---Territorial jurisdiction---"Court within the local limits of which the wife ordinarily resides"---Family Court alone had exclusive jurisdiction to deal with all the matrimonial disputes, whatever their nature, irrespective of territorial jurisdiction, provided that the Family Court where the wife resides shall have the jurisdiction to entertain such suits/claims---Provisions of Ss.16 to 20, C.P.C. stood excluded from the proceedings before the Family Court, thus, the question of its territorial jurisdiction would never arise, provided that the Family Court where the wife resides, shall have the exclusive jurisdiction over all such matters.
2016 PLD 613 SUPREME-COURT
Side Appellant : Mst. YASMEEN BIBI
Side Opponent : MUHAMMAD GHAZANFAR KHAN
case law on identification parade not needed
--Identification of an accused person before the Trial Court during the trial---Generally unsafe. (ZAHID HUSSAIN CHANNA )
2016 S C M R 1554
[Supreme Court of Pakistan]
2016 S C M R 1554
[Supreme Court of Pakistan]
Present: Asif Saeed Khan Khosa, Tariq Parvez and Dr. Muhammad Khalid Masud, JJ
HAIDER ALI and others---Petitioners
Versus
The STATE---Respondent
Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Muhammad Afzal alias Abdullah and another v. State and others 2009 SCMR 436; Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Ghulam Shabbir Ahmed and another v. The State 2011 SCMR 683 ref.
HAIDER ALI and others---Petitioners
Versus
The STATE---Respondent
Asghar Ali alias Sabah and others v. The State and others 1992 SCMR 2088; Muhammad Afzal alias Abdullah and another v. State and others 2009 SCMR 436; Nazir Ahmad v. Muhammad Iqbal 2011 SCMR 527; Shafqat Mehmood and others v. The State 2011 SCMR 537 and Ghulam Shabbir Ahmed and another v. The State 2011 SCMR 683 ref.
case law on appeal in 13 d allowed
Evidence
of the police official, needed independent corroboration---Requirement
of S. 103 , Cr.P.C. had not been complied with, which had made the
recovery of articles doubtful
S. 13(d)---Criminal Procedure Code (V of 1898), S. 103 ---Keeping arms without licence---Appreciation of evidence---Public/independent witness es not associated with arrest and recovery---Effect---Prosecution/police witness es were contradictory regarding the place from where the accused was arrested and the arm recovered---No public/independent witness es had been associated in the recovery proceedings---Evidence of the police official, needed independent corroboration---Requirement of S. 103 , Cr.P.C. had not been complied with, which had made the recovery of articles doubtful---Impugned conviction and sentence, therefore, was not legal and proper---Joint memo of recovery and arrest of two separate cases had been prepared in the case against present accused and the other accused respectively, and the prosecution, on the basis of same memo, had failed to prove the case beyond reasonable doubt against the latter, who had been acquitted, and said order of acquittal had not been impugned---Benefit of the acquittal in the connected case on the same joint memo of recovery was extended to present accused, particularly, when the complainant/Investigation Officer had admitted that he had not produced the certificate of District Armour---Complainant had deposed that the case property had been sent to the Ballistic Expert in murder case for report, which was positive, but the prosecution had failed to produce said report, which also created doubt as to the alleged recovery---Case property and the live bullets had neither been produced in the court nor shown to the accused at the time of his statement under S. 342, Cr.P.C.---Appeal against conviction was allowed accordingly.
S. 13(d)---Criminal Procedure Code (V of 1898), S. 103 ---Keeping arms without licence---Appreciation of evidence---Public/independent witness es not associated with arrest and recovery---Effect---Prosecution/police witness es were contradictory regarding the place from where the accused was arrested and the arm recovered---No public/independent witness es had been associated in the recovery proceedings---Evidence of the police official, needed independent corroboration---Requirement of S. 103 , Cr.P.C. had not been complied with, which had made the recovery of articles doubtful---Impugned conviction and sentence, therefore, was not legal and proper---Joint memo of recovery and arrest of two separate cases had been prepared in the case against present accused and the other accused respectively, and the prosecution, on the basis of same memo, had failed to prove the case beyond reasonable doubt against the latter, who had been acquitted, and said order of acquittal had not been impugned---Benefit of the acquittal in the connected case on the same joint memo of recovery was extended to present accused, particularly, when the complainant/Investigation Officer had admitted that he had not produced the certificate of District Armour---Complainant had deposed that the case property had been sent to the Ballistic Expert in murder case for report, which was positive, but the prosecution had failed to produce said report, which also created doubt as to the alleged recovery---Case property and the live bullets had neither been produced in the court nor shown to the accused at the time of his statement under S. 342, Cr.P.C.---Appeal against conviction was allowed accordingly.
2016 PCrLJ 1911 KARACHI-HIGH-COURT-SINDH
Side Appellant : DEEDAR AHMED
Side Opponent : State
Side Appellant : DEEDAR AHMED
Side Opponent : State
case law on NADRA
P L D 2016 Lahore 393
Before Ayesha A. Malik, J
KAINAT AKHTAR---Petitioner
Versus
REGIONAL HEADQUARTER NADRA and 2 others---Respondents
Writ Petition No.855 of 2014, heard on 26th February, 2014.
(a) National Database and Registration Authority Ordinance (VIII 2000)--
----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Issuance of Computerized National
Identity Card---Scope---Adopted child---Contention of respondent-NADRA was that petitioner was adopted
child and she did not have a mother or father---Validity---Guardianship certificate had been issued in favour of
petitioner by the court of competent jurisdiction---Petitioner had provided the name of her guardian and no
contradiction existed in her documents---Every citizen in or out of Pakistan who had attained the age of
eighteen years should get himself registered and a parent or guardian of every citizen who had not attained such
age should not later than one month after birth of such citizen get such citizen registered in accordance with the
provisions of the Ordinance---National Identity Card was a document for identification of a citizen---Issuance
of National Identity Card would mean that the information contained therein was valid and correct---
Application form issued by the NADRA had contemplated the category of guardian and same also inquired the
relationship with the family head to be explained---Petitioner was entitled to registration with the NADRA and
for issuance of her Computerized National Identity Card---Constitutional petition was accepted and respondents
were directed to issue Computerized National Identity Card to the petitioner forthwith.
Muhammad Salah-ud-Din v. NADRA PLD 2012 Lah. 378 ref.
(b) National Database and Registration Authority Ordinance (VIII 2000)--
----Preamble---Object---National Database and Registration Authority Ordinance, 2000, was promulgated to
facilitate the registration of all the persons and for establishment and maintenance of database, data warehouses,
networking, interfacing of databases and related facilities---Purpose of Ordinance and Authority was to register
persons and classes thereof including citizens.
Nadeem Ahmad Sheikh for Petitioner.
Jamil Khan, Law Officer for NADRA.
Date of hearing: 26th February, 2014.
JUDGMENT
AYESHA A. MALIK, J.--Through this petition, the Petitioner seeks a direction to the Respondent
NADRA for issuance of her computerized National Identity Card (CNIC).
2. The case of the Petitioner is that she is a citizen of Pakistan by birth. She was adopted by Shamim
Akhtar who has obtained a guardianship certificate on 23.5.2005 from the court of Mrs. Lubna Ali, Guardian
Judge-I, Lahore vide Guardian Case No.39/GC of 2005. After obtaining the guardianship certificate, the
guardian applied for B-Form which was issued by the Respondents on 6.6.2006. Thereafter the Petitioner
applied for a passport which was also issued to the Petitioner on 12.2.2011 in which the father's name is shown
as Guardian Shamim Akhtar. The Petitioner applied for her CNIC where she clearly stipulated that her
guardian's name is Shamim Akhtar. However the Respondents have denied the Petitioner the issuance of her
CNIC essentially on the ground that she did not have the required information under the parentage column as
she was an adopted child.
3. Learned counsel for the Petitioner argued that the B-Form has been issued which clearly provides in the
column of father's name that the Petitioner is 'Lay Palik'. In the column of the mother's name it provides the
name of the guardian Shamim Akhtar. Similarly he argued that on the passport it provides that she has a
guardian by the name of Shamim Akhtar. He further argued that no information has been withheld from the
Respondents yet despite the same the Petitioner has not been issued her CNIC. He argued that the basis for
issuance of the CNIC is the B-Form and that the Respondents have denied the Petitioner her fundamental right
as the citizen of Pakistan. Learned counsel further argued that on 22.3.2006 A/Director General of the
Respondents issued a letter to the Headquarters NADRA (SRC Dte), Islamabad requiring a policy to be
formulated with respect to adopted children under guardianship. However he argued that despite the same no
such policy has been made rendering the Petitioner without any remedy against the Respondents.
4. Report and parawise comments have been filed on behalf of the Respondents. Learned Law Officer on
behalf of the Respondents argued that the Petitioner has been granted guardianship certificate on 18.5.2005
from the court of Mrs. Lubna Ali, Guardian Judge-I, Lahore. The Petitioner is still a minor and under the
Majority Act, 1875 until she attains the age of 21 years she cannot file the instant petition. He further argued
that the B-Form shows that the father's name is 'Lay Palik' whereas the mother's name is shown as Shamim
Akhtar. He argued that Shamim Akhtar is the name of the guardian and not the name of the mother of the
Petitioner. Further argued that even on the Secondary School Certificate her parentage is mentioned as Shamim
Akhtar whereas Shamim Akhtar is the guardian of the Petitioner. He argued that the record of the Petitioner is
contradictory, hence she has been denied the issuance of the CNIC. He argued that the record does not clearly
stipulate that the Petitioner is an adopted child because in the B-Form in column of mother it says Shamim
Akhtar and in the passport under the father's name it says Guardian Shamim Akhtar. He argued that the
petitioner should rectify her status as 'adopted child' on her Secondary School Certificate, on the B-Form as well
as on the passport after which the Respondents will consider her cases for the purposes of issuance of the CNIC.
5. I have heard the learned counsel for the parties and reviewed the record available on the file.
6. The preliminary objection raised by the learned Law Officer for Respondent NADRA is with respect to
the maintainability of the instant writ petition on the ground that the Petitioner had not attained majority, hence
she is not entitled to file the instant writ petition. The record shows that the Petitioner's date of birth is
22.7.1995 making her 18 years 6 months and 7 days. The Petitioner is pursuing the instant writ petition for her
fundamental right to be issued a CNIC as a citizen of Pakistan. This petition is maintainable and there is no
substance in the objection raised by the learned Law Officer.
7. The basic reason for denying the Petitioner her CNIC is that she is an adopted child. A guardianship
certificate has been issued by the court of competent jurisdiction on 23.5.2005. This is not denied by the
Respondents. The objection of the Respondents is that she does not have a mother or father and that she is
adopted by Shamim Akhtar, hence she cannot show the name of Shamim Akhtar as her mother or her father.
Specifically the Respondents have objected to the fact that on her Secondary School Certificate it says
"son/daughter of Shamim Akhtar". On her Intermediate Part-1 and Part-II Annual Examination it says "Father's
name-Shamim Akhtar" and on the passport it says "Father's name-guardianship Shamim Akhtar". The
Respondents case is that the record of the Petitioner is contradictory and it is unclear from the record as to
whether Shamim Akhtar is the mother or the father or the guardian. The Respondents have also raised the
objection that the Petitioner should change her documentation to show her status as an 'adopted child' under the
guardianship of Shamim Akhtar. I have heard the learned Law Officer at length and find that the arguments
raised by the Respondents are without any merit or legal justification. The Petitioner applied for her CNIC. A
review of the form filed by the Petitioner shows that it clearly mentions the name of her guardian as Shamim
Akhtar. Column No.11 of the CNIC Form specifically asks for 'Guardian Name' which the Petitioner has
provided. Serial No.9 asks for relationship with family head and the Petitioner has written adopted child against
that question. Therefore there is no contradiction in the record of the Petitioner with respect to the fact that she
is under the guardianship of Shamim Akhtar by virtue of Guardianship Certificate dated 23.5.2005.
8. National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance 2000) preamble
stipulates that it is an Ordinance to provide for the establishment of the National Database and Registration
Authority so as to facilitate the registration of all persons and the establishment and maintenance of
multipurpose database, data warehouses, networking, interfacing of databases and related facilities. Section 9 of
the NADRA Ordinance 2000 provides that every citizen in or out of Pakistan who has attained the age of
eighteen years shall get himself and a parent or guardian of every citizen who has not attained that age shall, not
later than one month after the birth of such citizen, get such citizen registered in accordance with the provisions
of this Ordinance. The primary purpose of this Ordinance and the authority thereunder is to register persons or
classes thereof including citizens. It has already been held by this Court in the case titled 'Muhammad Salah-udDin
v. NADRA' (PLD 2012 Lahore 378) that a national database is to be maintained by the respondent. This
database record maintains all the required data regarding a citizen, thus establishing a database or information
base known as the citizen database. Every citizen is required to be registered with the respondent and to
effectuate the registration every citizen is issued a national identity card. The national identity card is a legal
document for identification of a citizen. Its issuance means that the information contained therein is valid and
correct. Every citizen who has attained the age of eighteen years is entitled to get himself registered with the
Respondent No.3. Section 9 of the NADRA Ordinance 2000 specifically addresses every citizen who has
attained eighteen years to get himself registered and every parent or guardian of every citizen to register the
birth of such citizen. The application form of the Respondents which seeks the details of the applicant for the
CNIC contemplates the category of 'Guardian' and also inquires the relationship with the family head to be
explained. The Petitioner is under the guardianship of Shamim Akhtar as issued by the Guardian Court on
23.5.2005. She is entitled to registration with the Respondents and for issuance of her CNIC. Under the
circumstances there is no justification to deny the Petitioner issuance of her CNIC.
9. In view of the aforesaid, this petition is allowed. The Respondents are directed to issue the CNIC to the
Petitioner forthwith.Petition allowed.
Before Ayesha A. Malik, J
KAINAT AKHTAR---Petitioner
Versus
REGIONAL HEADQUARTER NADRA and 2 others---Respondents
Writ Petition No.855 of 2014, heard on 26th February, 2014.
(a) National Database and Registration Authority Ordinance (VIII 2000)--
----S. 9---Constitution of Pakistan, Art. 199---Constitutional petition---Issuance of Computerized National
Identity Card---Scope---Adopted child---Contention of respondent-NADRA was that petitioner was adopted
child and she did not have a mother or father---Validity---Guardianship certificate had been issued in favour of
petitioner by the court of competent jurisdiction---Petitioner had provided the name of her guardian and no
contradiction existed in her documents---Every citizen in or out of Pakistan who had attained the age of
eighteen years should get himself registered and a parent or guardian of every citizen who had not attained such
age should not later than one month after birth of such citizen get such citizen registered in accordance with the
provisions of the Ordinance---National Identity Card was a document for identification of a citizen---Issuance
of National Identity Card would mean that the information contained therein was valid and correct---
Application form issued by the NADRA had contemplated the category of guardian and same also inquired the
relationship with the family head to be explained---Petitioner was entitled to registration with the NADRA and
for issuance of her Computerized National Identity Card---Constitutional petition was accepted and respondents
were directed to issue Computerized National Identity Card to the petitioner forthwith.
Muhammad Salah-ud-Din v. NADRA PLD 2012 Lah. 378 ref.
(b) National Database and Registration Authority Ordinance (VIII 2000)--
----Preamble---Object---National Database and Registration Authority Ordinance, 2000, was promulgated to
facilitate the registration of all the persons and for establishment and maintenance of database, data warehouses,
networking, interfacing of databases and related facilities---Purpose of Ordinance and Authority was to register
persons and classes thereof including citizens.
Nadeem Ahmad Sheikh for Petitioner.
Jamil Khan, Law Officer for NADRA.
Date of hearing: 26th February, 2014.
JUDGMENT
AYESHA A. MALIK, J.--Through this petition, the Petitioner seeks a direction to the Respondent
NADRA for issuance of her computerized National Identity Card (CNIC).
2. The case of the Petitioner is that she is a citizen of Pakistan by birth. She was adopted by Shamim
Akhtar who has obtained a guardianship certificate on 23.5.2005 from the court of Mrs. Lubna Ali, Guardian
Judge-I, Lahore vide Guardian Case No.39/GC of 2005. After obtaining the guardianship certificate, the
guardian applied for B-Form which was issued by the Respondents on 6.6.2006. Thereafter the Petitioner
applied for a passport which was also issued to the Petitioner on 12.2.2011 in which the father's name is shown
as Guardian Shamim Akhtar. The Petitioner applied for her CNIC where she clearly stipulated that her
guardian's name is Shamim Akhtar. However the Respondents have denied the Petitioner the issuance of her
CNIC essentially on the ground that she did not have the required information under the parentage column as
she was an adopted child.
3. Learned counsel for the Petitioner argued that the B-Form has been issued which clearly provides in the
column of father's name that the Petitioner is 'Lay Palik'. In the column of the mother's name it provides the
name of the guardian Shamim Akhtar. Similarly he argued that on the passport it provides that she has a
guardian by the name of Shamim Akhtar. He further argued that no information has been withheld from the
Respondents yet despite the same the Petitioner has not been issued her CNIC. He argued that the basis for
issuance of the CNIC is the B-Form and that the Respondents have denied the Petitioner her fundamental right
as the citizen of Pakistan. Learned counsel further argued that on 22.3.2006 A/Director General of the
Respondents issued a letter to the Headquarters NADRA (SRC Dte), Islamabad requiring a policy to be
formulated with respect to adopted children under guardianship. However he argued that despite the same no
such policy has been made rendering the Petitioner without any remedy against the Respondents.
4. Report and parawise comments have been filed on behalf of the Respondents. Learned Law Officer on
behalf of the Respondents argued that the Petitioner has been granted guardianship certificate on 18.5.2005
from the court of Mrs. Lubna Ali, Guardian Judge-I, Lahore. The Petitioner is still a minor and under the
Majority Act, 1875 until she attains the age of 21 years she cannot file the instant petition. He further argued
that the B-Form shows that the father's name is 'Lay Palik' whereas the mother's name is shown as Shamim
Akhtar. He argued that Shamim Akhtar is the name of the guardian and not the name of the mother of the
Petitioner. Further argued that even on the Secondary School Certificate her parentage is mentioned as Shamim
Akhtar whereas Shamim Akhtar is the guardian of the Petitioner. He argued that the record of the Petitioner is
contradictory, hence she has been denied the issuance of the CNIC. He argued that the record does not clearly
stipulate that the Petitioner is an adopted child because in the B-Form in column of mother it says Shamim
Akhtar and in the passport under the father's name it says Guardian Shamim Akhtar. He argued that the
petitioner should rectify her status as 'adopted child' on her Secondary School Certificate, on the B-Form as well
as on the passport after which the Respondents will consider her cases for the purposes of issuance of the CNIC.
5. I have heard the learned counsel for the parties and reviewed the record available on the file.
6. The preliminary objection raised by the learned Law Officer for Respondent NADRA is with respect to
the maintainability of the instant writ petition on the ground that the Petitioner had not attained majority, hence
she is not entitled to file the instant writ petition. The record shows that the Petitioner's date of birth is
22.7.1995 making her 18 years 6 months and 7 days. The Petitioner is pursuing the instant writ petition for her
fundamental right to be issued a CNIC as a citizen of Pakistan. This petition is maintainable and there is no
substance in the objection raised by the learned Law Officer.
7. The basic reason for denying the Petitioner her CNIC is that she is an adopted child. A guardianship
certificate has been issued by the court of competent jurisdiction on 23.5.2005. This is not denied by the
Respondents. The objection of the Respondents is that she does not have a mother or father and that she is
adopted by Shamim Akhtar, hence she cannot show the name of Shamim Akhtar as her mother or her father.
Specifically the Respondents have objected to the fact that on her Secondary School Certificate it says
"son/daughter of Shamim Akhtar". On her Intermediate Part-1 and Part-II Annual Examination it says "Father's
name-Shamim Akhtar" and on the passport it says "Father's name-guardianship Shamim Akhtar". The
Respondents case is that the record of the Petitioner is contradictory and it is unclear from the record as to
whether Shamim Akhtar is the mother or the father or the guardian. The Respondents have also raised the
objection that the Petitioner should change her documentation to show her status as an 'adopted child' under the
guardianship of Shamim Akhtar. I have heard the learned Law Officer at length and find that the arguments
raised by the Respondents are without any merit or legal justification. The Petitioner applied for her CNIC. A
review of the form filed by the Petitioner shows that it clearly mentions the name of her guardian as Shamim
Akhtar. Column No.11 of the CNIC Form specifically asks for 'Guardian Name' which the Petitioner has
provided. Serial No.9 asks for relationship with family head and the Petitioner has written adopted child against
that question. Therefore there is no contradiction in the record of the Petitioner with respect to the fact that she
is under the guardianship of Shamim Akhtar by virtue of Guardianship Certificate dated 23.5.2005.
8. National Database and Registration Authority Ordinance, 2000 (NADRA Ordinance 2000) preamble
stipulates that it is an Ordinance to provide for the establishment of the National Database and Registration
Authority so as to facilitate the registration of all persons and the establishment and maintenance of
multipurpose database, data warehouses, networking, interfacing of databases and related facilities. Section 9 of
the NADRA Ordinance 2000 provides that every citizen in or out of Pakistan who has attained the age of
eighteen years shall get himself and a parent or guardian of every citizen who has not attained that age shall, not
later than one month after the birth of such citizen, get such citizen registered in accordance with the provisions
of this Ordinance. The primary purpose of this Ordinance and the authority thereunder is to register persons or
classes thereof including citizens. It has already been held by this Court in the case titled 'Muhammad Salah-udDin
v. NADRA' (PLD 2012 Lahore 378) that a national database is to be maintained by the respondent. This
database record maintains all the required data regarding a citizen, thus establishing a database or information
base known as the citizen database. Every citizen is required to be registered with the respondent and to
effectuate the registration every citizen is issued a national identity card. The national identity card is a legal
document for identification of a citizen. Its issuance means that the information contained therein is valid and
correct. Every citizen who has attained the age of eighteen years is entitled to get himself registered with the
Respondent No.3. Section 9 of the NADRA Ordinance 2000 specifically addresses every citizen who has
attained eighteen years to get himself registered and every parent or guardian of every citizen to register the
birth of such citizen. The application form of the Respondents which seeks the details of the applicant for the
CNIC contemplates the category of 'Guardian' and also inquires the relationship with the family head to be
explained. The Petitioner is under the guardianship of Shamim Akhtar as issued by the Guardian Court on
23.5.2005. She is entitled to registration with the Respondents and for issuance of her CNIC. Under the
circumstances there is no justification to deny the Petitioner issuance of her CNIC.
9. In view of the aforesaid, this petition is allowed. The Respondents are directed to issue the CNIC to the
Petitioner forthwith.Petition allowed.
case law on Gas
Arts.
158 & 199---Constitutional petition---Supply of natural
gas---Priority---Petitioner company raised the plea that in view of
Art.158 of the Constitution, failure to supply natural gas to its plant
was illegal---Validity---Province of Khyber Pakhtunkhwa had surplus gas
over and above its own consumption---Cement manufacturing unit of
petitioner situated in Khyber Pakhtunkhwa Province should have had
precedence over cement manufacturing units outside the Province but
record spoke otherwise---Instead of
giving precedence to petitioner's cement manufacturing unit, the units
in other Provinces were given preference and petitioner was deprived of
its legal and constitutional right---High Court declared the conduct of
authorities in delaying the provision and supply of gas connection to
petitioner company as illegal, arbitrary, unreasonable, discriminatory,
without lawful authority and jurisdiction and also violative of
constitutional guarantees enshrined in the Constitution---High Court
directed the authorities to act in accordance with law and Constitution
and forthwith supply gas to cement manufacturing unit of
petitioner---Petition was allowed accordingly.
2016 PLD 32 PESHAWAR-HIGH-COURT
Side Appellant : CHERAT CEMENT COMPANY LTD. NOWSHERA
Side Opponent : PAKISTAN through Secretary Ministry of Petroleum and Natural Resoures, Islamabad
Side Appellant : CHERAT CEMENT COMPANY LTD. NOWSHERA
Side Opponent : PAKISTAN through Secretary Ministry of Petroleum and Natural Resoures, Islamabad
case law on bail in Theft
S.
497(2)---Penal Code (XLV of 1860), Ss.380 / 457 / 436/ 34---Theft in
dwelling house, lurking house-trespass or house-breaking by night in
order to commit offence punishable with imprisonment, mischief by fire
or explosive substance with intent to destroy house, common
intention---bail , grant of---Further inquiry---Two eye-witnesses of the
incident were not shown in the challan and they had also not deposed or
corroborated the allegations, as mentioned in the F.I.R.---F.I.R.
was silent with regard to the allegations of taking away entire house
hold items and it was also not clear as to how the said items were
shifted from the house to another place---No recovery of any item had
been made from the accused---Record revealed that an F.I.R. had been
lodged in the past in which complainant of present F.I.R. was shown as
an accused and present accused was one of the witnesses of that
F.I.R.---Was yet to come on record as to what happened with the large
number of stolen articles/ goods---Case of further inquiry was made out
in terms of S.497(2), Cr.P.C.---Accused was admitted to bail ,
accordingly.
2012 YLR 1340 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL HAFEEZ
Side Opponent : State
Side Appellant : ABDUL HAFEEZ
Side Opponent : State
case law on challan
هاء ڪورٽ ، جڊيشل ميجسٽريٽ يا ڪنهن ٻي ڪورٽ کي چالان جمع ڪرائڻ لاء پوليس کي حڪم ڏيڻ جو ڪو اختيار ناهي سپريم ڪورٽ آف پاڪستان۔
No power vested with any court including a High Court to override the said legal provision and direct the police either not to submit the said report or to submit the said report in a particular manner.
Ss. 173 & 190---Constitution, of Pakistan, Art. 185---Submission of challan---Concerned police recommended the disposal of the case as false---Magistrate concerned, approved the summary submitted by the police---High Court, however, set aside order passed by the Magistrate and directed the S.P. (Investigation) to submit challan of the case---After passing of said order, the police re-investigated the case and submitted the challan before the competent court---Grievance raised by the counsel for appellants was that the order passed by the High Court to the extent of submission of challan of the case was invalid, unwarranted in law and without jurisdiction---Validity--Section 173 , Cr.P.C. provided that on conclusion of investigation, the concerned S.H.O. was required to submit a report of the result thereof in the prescribed manner to the Judicial Magistrate competent to take cognizance under S.190, Cr. P. C. ---No power vested with any court including a High Court to override the said legal provision and direct the police either not to submit the said report or to submit the said report in a particular manner---Order of the High Court, to the extent of setting aside the order of the Magistrate passed. on the summary submitted by the police, appeared to be correct, but further direction to the police for submission of challan, was un-warranted and not sustainable in law---Power of investigation into accusation made in the First Information Report, vested with the police---On the basis of material collected by the police, the police had either to send up accused persons to stand trial or to submit a report to the Magistrate concerned for disposal of case in accordance with law.
2011 SCMR 1430 SUPREME-COURT ( NASEER versus KHUDA BAKH
No power vested with any court including a High Court to override the said legal provision and direct the police either not to submit the said report or to submit the said report in a particular manner.
Ss. 173 & 190---Constitution, of Pakistan, Art. 185---Submission of challan---Concerned police recommended the disposal of the case as false---Magistrate concerned, approved the summary submitted by the police---High Court, however, set aside order passed by the Magistrate and directed the S.P. (Investigation) to submit challan of the case---After passing of said order, the police re-investigated the case and submitted the challan before the competent court---Grievance raised by the counsel for appellants was that the order passed by the High Court to the extent of submission of challan of the case was invalid, unwarranted in law and without jurisdiction---Validity--Section 173 , Cr.P.C. provided that on conclusion of investigation, the concerned S.H.O. was required to submit a report of the result thereof in the prescribed manner to the Judicial Magistrate competent to take cognizance under S.190, Cr. P. C. ---No power vested with any court including a High Court to override the said legal provision and direct the police either not to submit the said report or to submit the said report in a particular manner---Order of the High Court, to the extent of setting aside the order of the Magistrate passed. on the summary submitted by the police, appeared to be correct, but further direction to the police for submission of challan, was un-warranted and not sustainable in law---Power of investigation into accusation made in the First Information Report, vested with the police---On the basis of material collected by the police, the police had either to send up accused persons to stand trial or to submit a report to the Magistrate concerned for disposal of case in accordance with law.
2011 SCMR 1430 SUPREME-COURT ( NASEER versus KHUDA BAKH
case law on murder in police Encounter
پوليس
کي ماڻهو مارڻ جو ڪو اختيار ناهي، چاهي هو ڪيڏو وڏو ڏوهاري هجي، سنڌ هاء
ڪورٽ پوليس جي ڪسٽڊي م مري ويل جوابدار جي خون جو ڪيس پوليس خلاف داخل ڪرڻ
جو حڪم ڏئي ڇڏيو۔
Land Mark Judgement by Justice Salahuddin panhwar against police, accused died in police custody High Court Ordered to register the FIR against the Police (Zahid Hussain Channa & Co)
Ss. 154, 174 & 176---murder in police custody ---Registration of criminal case---Scope---Son of the petitioner aged 15/16 years was nominated in the murder case; he was arrested by the police ; was detained at police Station, where he was tortured---Son of the petitioner was denuded, whipped and mixture of water and "choona" was forcibly put in his mouth as a result he became unconscious, and subsequently he expired in Hospital---Deceased received injuries in custody of police and he was referred to Hospital, where he died and postmortem was conducted---Proceedings under S.176, Cr.P.C., were not initiated---Station House Officer of police Station was bound to record the statement of every informant, and once information, narrated or received by SHO and would spell commission of a cognizable offence, he was left with no discretion, but to incorporate the same into the book as prescribed under S. 154, Cr.P.C., which provision was mandatory in nature---Not the caste, colour, creed or position of accused, but the investigation/trial alone, which would dress an accused with clothes of innocence---Such was not done in the present case---Conduct of the Doctor and police , was not up to the mark in the case---Even concerned Magistrate, was not approached, who otherwise was legally empowered to inquire into in such matters, as provided by S.176, Cr.P.C.---Such legal inquiry was deliberately avoided---Under peculiar circumstances of the present case, it was obligatory on the police Officer-in-charge of police Station; and even the Medical Officer to have informed to the concerned Magistrate for necessary inquiry, but that obligation was not fulfilled in the case---High Court observed that both the functionaries were required to be prosecuted for their negligence---High Court directed that Magistrate would proceed to conduct an inquiry within the scope of S.176, Cr.P.C., which would be in addition to the investigation into FIR ordered to be lodged---Constitutional petition was disposed with the observations that SHO would record statement of petitioner; if same would narrate ingredients of a cognizable offence, he would incorporate the same in the book provided under S.154, Cr.P.C.---If negligence of the Doctor was found with regard to Postmortem of the deceased, Director General Health Services, would be directed to constitute team for probe with regard to postmortem report---Order accordingly.
2016 PCrLJ 613 SINDH
( Mst. YASMEEN SHAIKH versus AYAZ PATHAN
Land Mark Judgement by Justice Salahuddin panhwar against police, accused died in police custody High Court Ordered to register the FIR against the Police (Zahid Hussain Channa & Co)
Ss. 154, 174 & 176---murder in police custody ---Registration of criminal case---Scope---Son of the petitioner aged 15/16 years was nominated in the murder case; he was arrested by the police ; was detained at police Station, where he was tortured---Son of the petitioner was denuded, whipped and mixture of water and "choona" was forcibly put in his mouth as a result he became unconscious, and subsequently he expired in Hospital---Deceased received injuries in custody of police and he was referred to Hospital, where he died and postmortem was conducted---Proceedings under S.176, Cr.P.C., were not initiated---Station House Officer of police Station was bound to record the statement of every informant, and once information, narrated or received by SHO and would spell commission of a cognizable offence, he was left with no discretion, but to incorporate the same into the book as prescribed under S. 154, Cr.P.C., which provision was mandatory in nature---Not the caste, colour, creed or position of accused, but the investigation/trial alone, which would dress an accused with clothes of innocence---Such was not done in the present case---Conduct of the Doctor and police , was not up to the mark in the case---Even concerned Magistrate, was not approached, who otherwise was legally empowered to inquire into in such matters, as provided by S.176, Cr.P.C.---Such legal inquiry was deliberately avoided---Under peculiar circumstances of the present case, it was obligatory on the police Officer-in-charge of police Station; and even the Medical Officer to have informed to the concerned Magistrate for necessary inquiry, but that obligation was not fulfilled in the case---High Court observed that both the functionaries were required to be prosecuted for their negligence---High Court directed that Magistrate would proceed to conduct an inquiry within the scope of S.176, Cr.P.C., which would be in addition to the investigation into FIR ordered to be lodged---Constitutional petition was disposed with the observations that SHO would record statement of petitioner; if same would narrate ingredients of a cognizable offence, he would incorporate the same in the book provided under S.154, Cr.P.C.---If negligence of the Doctor was found with regard to Postmortem of the deceased, Director General Health Services, would be directed to constitute team for probe with regard to postmortem report---Order accordingly.
2016 PCrLJ 613 SINDH
( Mst. YASMEEN SHAIKH versus AYAZ PATHAN
case law on Mantainence
جيڪڏهن خرچ جي ڪيس ٻارن جو مقرر ڪيل خرچ پورو نه ٿيي ۽ ڪيس ختم ٿي ويو
هجي ته خرچ جا پئسا وڌائڻ لاء نئي ڪيس ڪرڻ جي ضرورت ناهي صرف سمپل درخواست
ڪبي.
Once a decree by the family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the family Court may entertain any such application (under S. 151 , C.P.C.) and if necessary make alteration in the rate of maintenance allowance
Once a decree by the family Court in a suit for maintenance (for minors) was granted, thereafter, if the granted rate for monthly allowance was insufficient and inadequate, in that case, institution of fresh suit was not necessary rather the family Court may entertain any such application (under S. 151 , C.P.C.) and if necessary make alteration in the rate of maintenance allowance
S. 5 & Sched.---Civil Procedure Code (V of 1908), S. 151
---Maintenance allowance for minors, enhancement of---family Court,
powers of---Scope---Order for maintenance allowance for minors was
passed by family Court---Mother of minors sought enhancement in
maintenance allowance through filing an application under S. 151 ,
C.P.C. before the family Court---Objection of father that enhancement in
maintenance allowance could only be sought by filing a separate
suit---Validity---Provisions of Civil Procedure Code, 1908 were not
stricto sensu applicable to the proceedings under the family Courts Act,
1964, as such the family Court was competent to adopt its own
procedure---family Court had exclusive jurisdiction relating to
maintenance allowance and the matters connected therewith---Once a
decree by the family Court in a suit for maintenance (for minors) was
granted, thereafter, if the granted rate for monthly allowance was
insufficient and inadequate, in that case, institution of fresh suit was
not necessary rather the family Court may entertain any such
application (under S. 151 , C.P.C.) and if necessary make alteration in
the rate of maintenance allowance--- Objection was rejected accordingly.
2016 SCMR 1821 SUPREME-COURT
Side Appellant : Lt. Col. NASIR MALIK
Side Opponent : ADDITIONAL DISTRICT JUDGE, LAHORE
2016 SCMR 1821 SUPREME-COURT
Side Appellant : Lt. Col. NASIR MALIK
Side Opponent : ADDITIONAL DISTRICT JUDGE, LAHORE
Thursday, 2 March 2017
Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn
Once
compromise between parties, in compoundable offence had been effected,
the same could not be withdrawn---Violation of terms and conditions of
compromise was not a valid ground for re-opening the disposed of
criminal proceedings
S.489 -F---Criminal Procedure Code (V of 1898), Ss.249-A, 345 & 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Compounding of offence---Re-opening of case---Criminal case was closed on the basis of compromise between parties and accused was acquitted by Trial Court in exercise of powers under S.249-A, Cr.P.C.---Complainant sought reopening of criminal case on the plea that accused had violated terms and conditions of compromise---Validity---Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn---Violation of terms and conditions of compromise was not a valid ground for re-opening the disposed of criminal proceedings---If any party had resiled from terms and conditions, aggrieved party was at liberty to seek remedy provided under law through competent court for enforcement and specific performance of terms and conditions of the compromise---Trial Court was justified in acquitting accused and such order was neither perverse nor suffering from any infirmity or illegality and did not require interference of High Court---Appeal was dismissed in circumstances.
S.489 -F---Criminal Procedure Code (V of 1898), Ss.249-A, 345 & 417(2-A)---Dishonestly issuing a cheque---Appeal against acquittal---Compounding of offence---Re-opening of case---Criminal case was closed on the basis of compromise between parties and accused was acquitted by Trial Court in exercise of powers under S.249-A, Cr.P.C.---Complainant sought reopening of criminal case on the plea that accused had violated terms and conditions of compromise---Validity---Once compromise between parties, in compoundable offence had been effected, the same could not be withdrawn---Violation of terms and conditions of compromise was not a valid ground for re-opening the disposed of criminal proceedings---If any party had resiled from terms and conditions, aggrieved party was at liberty to seek remedy provided under law through competent court for enforcement and specific performance of terms and conditions of the compromise---Trial Court was justified in acquitting accused and such order was neither perverse nor suffering from any infirmity or illegality and did not require interference of High Court---Appeal was dismissed in circumstances.
2015 MLD 196 KARACHI-HIGH-COURT-SINDH
Side Appellant : NOMAN HAFEEZ SHEIKH
Side Opponent : NAJEEB ASHRAF
Side Appellant : NOMAN HAFEEZ SHEIKH
Side Opponent : NAJEEB ASHRAF
Wednesday, 8 February 2017
Bail Conferm 376 ppc 2013 P Cr. L J 1369
2013 P Cr. L J 1369
[Lahore]
Before Sayyed Mazahar Ali Akbar Naqvi, J
MUHAMMAD JAMEEL and another---Petitioners
Versus
The STATE and another---Respondents
Criminal Miscellaneous 17237/B of 2012, decided on 21st
December, 2012.
(a) Criminal Procedure Code (V of 1898)---
----S. 498---Penal Code (XLV of 1860), Ss. 376 &
379---Rape, theft---Ad interim pre-arrest bail, confirmation of---Delay in
lodging F.I.R.---F.I.R. lodged with ulterior motives---Mala fide of
complainant---Ocular evidence in conflict with medical evidence---Improbable
occurrence---Effect---Accused and co-accused were real brother and sister inter
se---Co-accused allegedly took away complainant's daughter/victim from her
house, whereafter accused allegedly committed zina with her on gun
point---Accused and co-accused were also alleged to have grabbed gold ornaments
from the victim---Allegation of zina was made with a delay of one and a half
months without rendering any explanation in such regard---Complainant/father of
victim stated in court that accused and co-accused called the trouble upon
themselves as they refused to hand over gold and cash belonging to the victim,
which statement reflected the intent of the complainant qua lodging of present
F.I.R. in order to procure/settle dispute over gold and money---Medical
evidence was in conflict with ocular evidence---Accused and co-accused were
real brother and sister inter se and it did not appeal to reason that a sister
would be instrumental in facilitating her brother for committing such a heinous
offence---Mala fide of complainant was apparent from the facts and
circumstances of the case---Ad-interim pre-arrest bail already granted to
accused and co-accused was confirmed, in circumstances.
(b) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail---Merits of the
case---Scope---While delivering order with reference to pre-arrest bail, merits
of the case could be touched upon by the courts for the safe administration of
criminal justice.
Meeran Bux v. The State and another PLD 1989 SC 347 rel.
(c) Criminal Procedure Code (V of 1898)---
----S. 498---Pre-arrest bail---Grounds---Provisions of
pre-arrest bail were to be invoked where for some extraneous considerations
unfounded charge was brought against innocent persons for humiliation,
unjustified harassment and for disgracing them by trumped charges.
Dr. Abdul Sattar v. Abdur Rahim and
3 others 1990 PCr.LJ 630 rel.
(d) Criminal Procedure Code (V of 1898)---
----Ss. 497 & 498---Bail---Mala fide of
complainant---Scope---Court could look into and evaluate mala fide from the
facts and circumstances of the case.
Ajmal Khan v. Liaqat Hayat and another PLD 1998 SC 97 and Syed Muhammad Firdaus
and others v. The State 2005 SCMR 784 rel.
Muhammad Shujaat Malik for Petitioner.
Mian Muhammad Awaiz Mazhar, Deputy Prosecutor-General and Abdul Qayyum, A.S.-I.
with Record for the State.
Complainant in person.
ORDER
SAYYED MAZAHAR ALI AKBAR NAQVI, J.---Apprehending
their arrest at the hands of the police, through the instant petition,
Muhammad Jameel and Sumera, petitioners
seek their pre-arrest bail in case F.I.R. No.473 of 2012, dated
16-7-2012, offence under sections 376, 379, P.P.C., registered with Police
Station, Hanjarwal, Lahore.
2.
Prosecution story, in brief, as contained in the crime report is that about one
and half months prior to lodging the crime report, Sumera/petitioner No.2 came
to the house of the complainant and took away her daughter namely Anees Zahra
aged 14 years with her under the pretext of some work/washing feet, to the
house of Jamil/petitioner No.2, who committed zina with her on gun-point. It is
mentioned in the crime report that the petitioners also grabbed gold ornaments
weighing two and half tolas from the victim under the pretext of getting her
abortion done by a doctor.
3. Learned
counsel for the petitioners contends the petitioners are innocent and have
falsely been roped in the instant case by the complainant against the actual
facts and circumstances with mala fides. It is argued that both the petitioners
are brother and sister inter se and the story/allegations levelled in the crime
report against them do not sound sense. It is argued that though the moral
values of the society have gone to very low pith, but even then it is strange
enough that a married real sister helps her brother to commit zina with a girl
of tender age. It is contended that even otherwise
medical evidence in the instant case do not
commensurate with the occular account as according to the prosecution's own
case, the matter was reported to
the police on 16-7-2012 whereas the medical
examination of the victim was conducted on
10-7-2012 i.e. even prior to registration of the crime report. Adds
that even as per medical certificate of the
victim (better copy available on the file
at page 18), she was subjected to zina 3 to
4 days ago. Learned counsel for the petitioners while referring report of
Forensic Science Agency, Punjab, Lahore, bearing No.10-12 DNA and Serology
Department Examination, dated 5-10-2012, submits that following result
and conclusion has been mentioned therein:--
"Presumptive testing indicated the presence
of seminal material but no spermatozoa
could be found on item # 1, 2 and 3".
As a matter of fact, learned
counsel submits that the dispute over
two tolas gold and cash worth
Rs.10,000 between the parties, has been
culminated into lodging of instant crime
report with such a heinous
offence/allegation and the
petitioners have just been made
scapegoat. In such circumstances, learned counsel for the petitioners prayed for
grant, of relief prayed for by means of instant petition.
4. On the
other hand, learned Deputy Prosecutor-General submits that the
petitioners are named in the crime report.
It is argued that the victim has fully
implicated the petitioners in the instant
case through her statement under section
161, Cr.P.C. It is contended that the petitioners were found guilty
during the course of investigation. Moreover, it is a pre-arrest bail and the
same can be granted sparingly. However, when confronted qua delay/contradiction
in the occular and medical account, learned Deputy Prosecutor-General states
that the complainant is not aware about the technicalities being illiterate
lady.
5. Arguments
advanced pro and contra have been heard and available record perused.
6. This
Court is conscious of the fact that considerations for grant of pre-arrest bail
and post-arrest bail are entirely on different footings, but at the same time
this Court cannot lose sight of the fact that the scope of pre-arrest bail has
been widened by the august Supreme Court of Pakistan while delivering judgment
in the reported case titled Meeran Bux v. The State and another (PLD 1989 SC
347), wherein it has been categorically held that while delivering order with
reference to pre-arrest bail, merits of the case can also be touched upon by
the Courts for the safe administration of criminal justice. This Court has
observed that a very heinous allegation of zina has been levelled in the
instant case with the delay of one and half months without rendering any
explanation in this regard at all. Even otherwise the complainant present
before the Court when confronted stated that in fact the accused have
themselves called the trouble as they refused to hand over two tolas gold and
cash worth Rs.10,000, and this fact squarely reflects the intent of the
complainant qua lodging of the instant case in order to procure/settle the
dispute over gold/money. The medical evidence in the case in hand is in
conflict with the occular account, which does not support the case of the
prosecution in any way. The question arises whether in such circumstances it
would be in the fitness of things that the petitioners should be granted
extraordinary relief or otherwise, suffice it to say that the accusations
levelled in the instant case are against real brother and sister,
who even otherwise is having a
suckling babe with her, and this aspect
do not appeal to reason that she
would be instrumental in providing all logistic facilities to her real
brother for such a heinous offence.
7. Law of
bail is not a static law but is growing all the times moulding itself with the
changed situation. Provisions of pre-arrest bail are to be invoked where for
some extraneous considerations unfounded charge may be brought against innocent
persons for humiliation, unjustified harassment and being disgraced by trumped
charges. Reliance in this regard is placed upon the reported case of Dr. Abdul
Sattar v. Abdur Rahim and 3 others (1990 PCr.LJ 630). Moreover, it is a settled
principle of law that the Court can even look into and evaluate the mala fides
from the facts and circumstances of the case, which apparently is oozing in
this case from the facts and circumstances discussed above. Respectful
reliance in this regard is placed on
the ratio decidendi of august Supreme Court of Pakistan in the cases of
Ajmal Khan v. Liaqat Hayat and another (PLD 1998 SC 97) and Syed Muhammad Firdaus
and others v. The State (2005 SCMR 784). Moreover, liberty of a
person is a precious right and the
same cannot be curtailed only on the basis of bald
allegations. In such circumstances, sending the petitioners behind the bars
would not serve any useful purpose for the prosecution.
8. For the
foregoing reasons I am inclined to hold that the petitioners have made out a
case for their confirmation of pre-arrest bail. Resultantly, the instant
petition is accepted and ad interim bail already granted to the petitioners in
terms of order dated 28-11-2012 is hereby confirmed subject to their furnishing
fresh bail bonds in the sum of Rs.1,00,000 each with one surety each in the
like amount to the satisfaction of learned trial Court.
Bail confirmed.
Post Arrest Bail 376 ppc (2013 P Cr. L J 1782)
2013 P Cr. L J 1782
[Lahore]
Before Shujaat Ali Khan, J
SHAH NAWAZ alias CHULLU---Petitioner
Versus
The STATE and another---Respondents
Criminal Miscellaneous No.4720/B of 2012, decided on 20th
November, 2012.
(a) Criminal Procedure Code (V of 1898)---
----S. 497(2)---Penal Code (XLV of 1860), Ss. 376 &
511---Rape, attempting to commit offences punishable with imprisonment for life
or for a shorter term---Bail, grant of---Further inquiry---Doubtful occurrence---Penetration
not alleged---Effect---Accused and co-accused allegedly entered house of
complainant while armed with weapons and tried to commit zina-bil-jabr with
her---Reading of the F.I.R. showed that rape was not committed with the
complainant, rather accused allegedly tried to commit zina with her, therefore,
provisions of S.376, P.P.C. were not attracted to the present case---Co-accused
had been granted bail on the basis that complainant submitted an affidavit in
court to the effect that co-accused was innocent---Complainant also recorded
her statement before court below to the effect that co-accused was not present
at the time of occurrence---Factually if co-accused was not present at the time
of occurrence, then entire story narrated by complainant seemed to be somewhat
doubtful---According to the F.I.R., accused had been seducing the complainant
for zina for a long period of time, but inaction on part of complainant to
bring the same to the notice of police or anybody else spoke volumes on her part---Although
accused was alleged to have been
involved in other cases but complainant could not establish
that he was ever convicted in any case registered against him---Accused had
made out a case of further inquiry into his guilt---Accused was allowed bail,
in circumstances.
Tariq Bashir and 5 others v. The State PLD 1995 SC 34 ref.
(b) Penal Code (XLV of 1860)---
----S. 376--- Rape--- Proof--- Penetration was
essential to establish that rape had been committed with a woman in
terms of S.376, P.P.C.
(c) Criminal Procedure Code (V of 1898)---
----S. 497(2)--- Bail---Case of further
inquiry---Abscondence of accused---Effect---Accused could not be refused bail
on the ground that he remained fugitive from law, when he otherwise succeeded
in establishing that his case fell under S.497(2), Cr.P.C.
(d) Criminal Procedure Code (V of 1898)---
----S. 497---Bail---Registration of F.I.Rs. against
accused---Effect---Accused could not be refused bail, merely on the ground that
certain other criminal cases had been registered against him.
Muhammad Ramzan Khalid Joiya for Petitioner.
Hassan Mahmood Tareen, D.P.G. with Masood, SI along with record.
Zafar Iqbal Bhatti for the Complainant.
ORDER
SHUJAAT ALI KHAN, J.---Shahnawaz
alias Chullu has sought post-arrest bail being an
accused of case F.I.R. No.293 of 2011 dated 3-7-2011 registered at
Police Station Noor Shah, District Sahiwal in respect of the offences under
sections 376/511, P.P.C.
2. The
allegation against the petitioner, in
precise, is that on 20-5-2011, he while armed with pistol along with his
co-accused, Sohail Ahmad, entered the house of the complainant and tried to
commit zina-bil-jabr with her.
3. Learned counsel
for the petitioner contends that there is a delay of 1-1/2 months in lodging
the F.I.R.; that in fact no occurrence, as alleged by the complainant, took
place; that the complainant has already sworn an affidavit to the effect that
Sohail Ahmad, co-accused is innocent; that though the petitioner remained on
physical remand for a considerable period but no recovery has been effected
from him; that the complainant is habitual to move applications against
different persons and then to recover money from them; that in fact the present
F.I.R. has been lodged as counterblast to that of case F.I.R. No. 363 of 2011;
that the contents of the F.I.R. do not constitute offence under section 376,
P.P.C. and that since the petitioner was declared innocent by the police, he
did not appear before the Court, therefore, his abscondance is not material.
4.
Conversely, learned DPG, assisted by the learned counsel for the complainant,
submits that the petitioner has recently been arrested in this case on
30-9-2012; that a pistol has already been recovered from the petitioner; that
the petitioner remained absconder for a considerable period; that no previous
enmity has been shown by the petitioner for his false involvement in this case;
that delay in lodging the F.I.R. stands explained as the F.I.R. was lodged
pursuant to an order passed by the learned Ex-Officio Justice of Peace on the
petition filed by the complainant under section 22-A/22-B, Cr.P.C.; that number
of other criminal cases have been registered against the petitioner; that he is
leader of gang of a group which is defrauding the innocent citizens and that
the petitioner has been found guilty during the investigation. In addition to
his oral submissions learned counsel for the complainant has relied upon the
case reported as Tariq Bashir and 5 others v. The State (PLD 1995 Supreme Court
34).
5. I have
heard the learned counsel for the parties and have also gone through the
documents appended with this petition as well as those, produced during the course
of arguments in addition to the case-law cited by the learned counsel for the
complainant.
6. Firstly,
taking up the question as to whether the provisions of section 376, P.P.C. are
applicable to the facts and circumstances of the case, I am of the view that a
perusal of sections 375 and 376, P.P.C. is inevitable which for
convenience of reference is being reproduced herein below:--
"375. Rape.---A man is said to commit rape who has sexual intercourse with
a woman under circumstances falling under any of the five following
descriptions,--
(i) against
her will;
(ii) without her
consent;
(iii) with her consent,
when the consent has been obtained by putting her in fear of death or of hurt;
(iv) with her consent,
when the man knows that he is not married to her and that the consent is given
because she believes that the man is another person to whom she is or believes
herself to be married; or
(v) with
or without her consent when she is
under sixteen years of age.
376. Punishment for rape.---(1) Whoever commits rape shall be punished with
death or imprisonment .for either description for a term which shall not be
less than ten years or more than twenty five years and shall also be liable to
fine".
A bare perusal of the afore-quoted sections makes it
clear that to attract provisions of section 376, P.P.C., there should be rape
with a woman and to establish as to whether the rape was committed, penetration
is essential but bare reading of the instant F.I.R. speaks otherwise because it
has not been alleged by the complainant that rape was committed with her rather
her case is that the petitioner tried to commit zina with her, therefore, the
provisions of sections 376, P.P.C. prima facie do not attract to the facts and
circumstances of the case.
7. A glance
on order dated 23-12-2011 passed by the learned Additional Sessions Judge,
whereby the petition for post-arrest bail filed by Sohail Ahmad, co-accused was
accepted, brings it to light that the complainant appeared before the Court and
submitted an affidavit to the effect that Sohail Ahmad is innocent. Moreover,
she also got recorded her statement on 23-12-2011 before the learned Additional
Sessions Judge, wherein she stated in unequivocal words that Sohail Ahmad is
not his accused. If the said Sohail Ahmad was not present at the time of
occurrence then entire story narrated by the complainant in the F.I.R. seems to
be somewhat doubtful.
8. It is
interesting to note that according to the allegation contained in the F.I.R.,
the petitioner had been seducing the complainant for zina for a
long period but inaction on the part
of the complainant to bring the same to the notice of the police or
anybody else speaks volume on her part.
9. Insofar
as the objection raised by the learned DPG that as the petitioner remained
absconder for considerable time and is not entitled for grant of bail is
concerned, suffice it to observe when the petitioner otherwise has
succeeded to establish that his case
falls under section 497(2), Cr.P.C. bail cannot be refused on the
ground that he remained fugitive from law.
10. Now coming to the
contention of the complainant that the petitioner is also involved in other number
of criminal cases, I am of he humble opinion that prior to conviction, it is
presumed that every accused is innocent. Insofar as the case in hand is
concerned, despite repeated queries by this Court learned counsel for the
complainant has failed to establish that the petitioner was ever convicted in
any case registered against him, therefore, he
cannot be refused bail merely on the ground that
certain other criminal cases have been registered against him.
11. For what has been
discussed above, I have no doubt in my mind to hold that the petitioner has
made out a case for further inquiry into his guilt within the meaning of
section 497(2), Cr.P.C. Consequently, this petition is accepted and the
petitioner is allowed post-arrest bail subject to his furnishing bail bonds in
the sum of Rs. 5,00,000 (rupees five lacs only) with one surety in the like
amount to the satisfaction of the learned trial Court.
12. Before parting with
this order, it is observed that the observations made in this order are
tentative in nature and the same would have no bearing on the outcome of the
trial of the case.
Bail granted
Case law on NADRA correction
A VERY IMPORTANT JUDGEMENT OF LAHORE HIGH COURT
AGAINST NADRA
For correction of NAME in NADRA Records/CNIC
without getting COURT ORDER
Ss. 9 & 5(3)---National Database and Registration Authority (NIC) Rules 2002, R.13---Constitution of Pakistan, Art. 199---Constitutional petition---correction on National Identity Card issued by NADRA---Petitioner had sought correction on his national identity card on the ground that the name of his father had been in correctly entered---NADRA (respondent) refused to make the necessary correction on the ground that for a change in the father's name; a court order was necessary---NADRA, to support such contention, relied on its Registration Policy and Standard Operating Procedures (SOPs)---Validity---Error was clearly a typographic mistake---National database was required to be maintain ed by NADRA, and every citizen was required to be registered and to effectuate such registration, every citizen was issued a national identity card---National Identity Card (cnic ) was a legal document for the identification of a citizen, and its issuance meant that the in formation contain ed therein was valid and correct---NADRA, by not correcting an error in its database or on the cnic , was, in fact, going against the spirit of the Ordinance, and was not performing its primary function and was perpetuating a wrong in its own database, thereby negating the purpose of the national identity card---NADRA, was bound to maintain a correct database and was bound to print correct in formation on the cnic and was obligated to correct any error in its database or the cnic it issued to a citizen---Standard Operating Procedures (SOPs) and Registration Policy were internal instructions to enable NADRA to achieve optimum level of efficiency and to ensure consistency and infirmity in its procedure and process---Standard Operating Procedures (SOPs) did not have the force of law and were not bin din g on the NADRA---Standard Operating Procedures were internal documents, at best, and could not form the basis of denying the petitioner the right to have the correct in formation maintain ed in the citizen database and printed on the cnic ---Standard Operating Procedures could not form the basis for NADRA to refuse to correct an error in its record because if the error was not corrected, it would negate the very purpose of issuing a cnic to a citizen---Delay in filing an application for correction of an office mistake could not hamper or prevent the process of actually correcting the NADRA database, or the cnic ---High Court directed NADRA to treat the pending request of the petitioner as a correction of an office mistake and to correct the petitioner's father's name in the database and issue him a new cnic ---Constitutional petition was allowed, accordingly.(2012 PLD 378 LAHORE-HIGH-COURT-LAHORE)
AGAINST NADRA
For correction of NAME in NADRA Records/CNIC
without getting COURT ORDER
Ss. 9 & 5(3)---National Database and Registration Authority (NIC) Rules 2002, R.13---Constitution of Pakistan, Art. 199---Constitutional petition---correction on National Identity Card issued by NADRA---Petitioner had sought correction on his national identity card on the ground that the name of his father had been in correctly entered---NADRA (respondent) refused to make the necessary correction on the ground that for a change in the father's name; a court order was necessary---NADRA, to support such contention, relied on its Registration Policy and Standard Operating Procedures (SOPs)---Validity---Error was clearly a typographic mistake---National database was required to be maintain ed by NADRA, and every citizen was required to be registered and to effectuate such registration, every citizen was issued a national identity card---National Identity Card (cnic ) was a legal document for the identification of a citizen, and its issuance meant that the in formation contain ed therein was valid and correct---NADRA, by not correcting an error in its database or on the cnic , was, in fact, going against the spirit of the Ordinance, and was not performing its primary function and was perpetuating a wrong in its own database, thereby negating the purpose of the national identity card---NADRA, was bound to maintain a correct database and was bound to print correct in formation on the cnic and was obligated to correct any error in its database or the cnic it issued to a citizen---Standard Operating Procedures (SOPs) and Registration Policy were internal instructions to enable NADRA to achieve optimum level of efficiency and to ensure consistency and infirmity in its procedure and process---Standard Operating Procedures (SOPs) did not have the force of law and were not bin din g on the NADRA---Standard Operating Procedures were internal documents, at best, and could not form the basis of denying the petitioner the right to have the correct in formation maintain ed in the citizen database and printed on the cnic ---Standard Operating Procedures could not form the basis for NADRA to refuse to correct an error in its record because if the error was not corrected, it would negate the very purpose of issuing a cnic to a citizen---Delay in filing an application for correction of an office mistake could not hamper or prevent the process of actually correcting the NADRA database, or the cnic ---High Court directed NADRA to treat the pending request of the petitioner as a correction of an office mistake and to correct the petitioner's father's name in the database and issue him a new cnic ---Constitutional petition was allowed, accordingly.(2012 PLD 378 LAHORE-HIGH-COURT-LAHORE)
Tuesday, 31 January 2017
case law on succession matters
No limitation existed in matters of letter of administration and succession certificate.
Ss. 278 & 372 ---Letter of administration and succession certificate issuance of---limitation ---No limitation existed in matters of letter of administration and succession certificate.
2014 CLC 981 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL WAHAB
Side Opponent : ABDUL RASHEED.
Ss. 278 & 372 ---Letter of administration and succession certificate issuance of---limitation ---No limitation existed in matters of letter of administration and succession certificate.
2014 CLC 981 KARACHI-HIGH-COURT-SINDH
Side Appellant : ABDUL WAHAB
Side Opponent : ABDUL RASHEED.
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