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