Fasad-fil-Arz

                     No Bail

                  Fasad-fil-Arz

                      2024 LHC 3700

     An offence committed in the name or on the pretext of honour was excluded from the definition of ‘qatl-i-amd’ as contained in Section 302 Clause (c) of PPC, as the phrase “in the name or on the pretext of honour” inserted in the first proviso to Section 302(c) of PPC clearly indicates that the murder (naeem)committed in the name or on the pretext of honour had to be calculated as a murder committed with premeditation in the background of honour. 

    As per provisions of sub-section (7) to Section 345 of Cr.PC, no offence shall be waived or compounded save as provided by this Section and section 311 of PPC. Another significant amendment has been introduced by amending section 299 of PPC and introducing clause (ee) through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, whereby an offence that has been committed in the name or on the pretext of honour has been categorized as an offence falling (naeem)within the meaning of ‘fasad-fil-arz’. As per provisions of section 311 of PPC, if the principle of  fasad-fil-arz is attracted, the court may having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment  of life or imprisonment of either description for a term of which may extend to fourteen years as ta’zir. The sole proviso to this section further provides that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life. 

In view of the amendments as made in sections 299(ee), section 302(c) and section 311 PPC read with proviso to section 345(2-A) and 345 (7) of Cr.PC, a convict in an honour killing case, still can face sentence of imprisonment for life even if legal heirs of a victim have settled the matter by way of compromise and pardoned the convict. Therefore, the accused/petitioner is not entitled to be released (naeem)on bail on the basis of any statement made by the legal heirs of the deceased whereby they have compounded the offence as in view of provisions of Sections 345(2-A) & 345(7) of the Cr.P.C., no offence shall be waived or compounded save as provided by the provisions of section 311 PPC.  

                                             Bail refused.

Crl. Misc.47663/24

Bilal Sikandar Vs The State etc. 

Mr. Justice Shakil Ahmad 

21-08-2024        2024 LHC 3700

Full judgment

              Form No: HCJD/C-121 

ORDER SHEET 

IN THE LAHORE HIGH COURT LAHORE 

           (JUDICIAL DEPARTMENT) 

 

Case No. Crl. Misc. No. 47663-B of 2024 

 

  Bilal Sikandar Versus  The State and another 

Sr. No. of order/ Proceedings Date of order/ Proceedings Order with signatures of Judge, and that of parties or counsel, where necessary. 

   

21.08.2024 Mr. Mushtaq Ahmad Mohal, Advocate for the petitioner. 

Miss Rashida Parveen, Assistant District Public Prosecutor with Junaid, SI. 

  

  After dismissal of his post-arrest bail petition by learned Additional Sessions Judge, Sargodha, vide order dated 07.03.2024, Bilal Sikandar, accused/petitioner has filed instant petition under section 497 of the Code of Criminal Procedure, 1898 (Cr.P.C.) seeking post-arrest bail in case F.I.R. No.99 of 2024 dated 02.02.2024 registered at Police Station Bhagtanwala District Sargodha for the offences under sections 302, 311 of the Pakistan Penal Code, 1860 (PPC).  

2. Allegation, in a nutshell, against the 

accused/petitioner is that he, by exhorting that Ramsha  (his sister) has brought dishonour to them and he would not leave her alive, made a straight fire shot hitting on the back of Ramsha, who succumbed to the injury at the spot.   

3. Heard. Record perused. 

4. Instant is a case in which Ramsha (aged about 21/22 years) lost her life in the consequence of a fire shot injury alleged to have been made on her by none other than her real brother, on account of ‘ghairat’. The occurrence that took place on 02.02.2024 at 12:30 PM was claimed to have been witnessed by Muhammad Junaid Ahmed, T/SI and the constables who, during the course of patrolling, when reached near the house of deceased, rushed inside the house on hearing an uproar coming inside the house. According to them, accused/petitioner who was armed with 12-bore single barrel, made straight fire shot hitting on the person of Ramsha who fell down and succumbed to the injury at the spot. Strangely enough, none of the inmates, including the parents of the deceased, opted to become the complainant qua the incidence in which their own daughter was done to death, and even they did not give their account regarding the murder of the deceased immediately, just after the occurrence that how and under which circumstances Ramsha became injured and lost her life. Occurrence has been shown to be witnessed by the independent persons belonging to the police department who, ex facie, have no ill-will or any sort of grudge to falsely involve the accused/petitioner with the commission of murder of his own sister. Even, the accused/petitioner remained fugitive from law for the period of around 5 months and when finally rounded up, got recovered the firearm. The investigator also collected a crime empty from the spot and the same was sent to the office of PFSA. The firearm recovered from the accused/petitioner has also been dispatched to the concerned quarter for analysis. The police/investigator seemed to have collected sufficient evidence/material linking the accused/petitioner with the commission of alleged crime. 

5. Issue of honour killing had been noticed by courts with grave concern and in case “Muhammad Akram Khan v. The State” (PLD 2001 SC 96), while answering stance taken by defence that accused committed offence under the impulse of ‘ghairat’, the Supreme Court of 

Pakistan observed as under: - 

“Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of “Ghairat”. Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatli-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution. In this case, the plea of “Ghairat” cannot be deemed to be a mitigating circumstance as the motive was not directly against the deceased.”  

In case “Umer Din v. The State and others” (2017 YLR Note 378 [Lahore]), while dealing with the case of  post-arrest bail of an accused relating to honour killing, this Court observed as under: - 

“8. It is important to observe that in our society granting post-arrest bails in ‘honor killing’ i.e. a violence against women will substantially increase such incidents, which in most of the cases is for gain of the property, demanding the hand of a woman of choice, settling the old scores and personal vendetta. Certainly, if such like act as committed by the petitioner is approved, it would lead to an anarchic situation in the society and lynching of women would become order of the day.” 

 

In case “Khadim Hussain and another v. The State” (PLD 2012 Baluchistan 179), while dealing with the same moot point it was observed as under: - 

“I have noticed in a number of cases that the killing of innocent wife, sister and other female relatives, on the allegation of 'siyahkari' has become a routine practice, rather a fashion, and it is a high time to discourage such kind of unwarranted and shocking practice, resulting in double murder in the name of so-called honour killing. I am not impressed by the contention of learned counsel for the applicants that according to the prosecution's own showing, the occurrence is the result of 'siyahkari', as such the applicants were liable to be enlarged on bail. It is true that people do not swallow such kind of insult, touching the honour of their womenfolk and usually commit murder of alleged 'siyahkar' in order to vindicate and rehabilitate the family honour, but it is equally true that no one can be granted licence to take law of the land in his own hands and start executing the culprits himself instead of taking them to the 

Courts of law. The murder based on 

`Ghairat' does not furnish a valid ground for bail. Killing of innocent people, especially women on the pretext of 'siyahkari', is absolutely un-Islamic, illegal and unconstitutional. It is worth mentioning that the believers of Islam are not even allowed to divorce them, without establishing their accusation. We profess our love for Islam, but ignore clear Qur'anic Injunctions regarding the rights of women. The Holy Qur'an in Sura XXIV in Sura (NUUR) 

Verses 4 says: 

   

"And those who launch a charge against chaste women and produce not four witnesses, (To support their allegation),--- Flog them with eight stripes; and reject their evidence even after: for such men are wicked transgressors;---" 

In this regard, it would also be advantageous to reproduce Hadith 837 Book 48 (Sahih Bukhari), which speaks as under:-- 

"Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of committing illegal sexual intercourse with Sharik bin Sahma. The Prophet said, "Produce a proof or else you would get the legal punishment (by being lashed) on your back" Hilal Said, "O Allah's Apostle! If any one of us saw another man over his wife, would he go to search for a proof" The Prophet went on saying, "Produce a proof or else you would get the legal punishment (by being lashed) on your back " The Prophet then mentioned the narration of Lian (as in the Holy Book). (Surat-al-Nur.. 

24)," 

 

Being conscious of the fact that it had become an ignominious practice in the society, particularly after promulgation of Qisas and Diyat Ordinance, 2000, that after doing away with females, either she may be a wife, mother, daughter, or sister on the pretext of honour, real perpetrators were usually being let off after getting pardon from wali/walis, the legislature introduced certain amendments through the Criminal Law (Amendment) Act, 2004 (Act I of 2005), whereby the definition of an offence committed in the name or on the pretext of the honour was introduced. Similarly, clause (c) to section 302 of PPC was also amended and substituted through the Criminal Law (Amendment) (Offences in the Name or on 

Pretext of Honour) Act, 2016 as under: - 

3.     Amendment of section 302, Act XLV of 1860.—In the Penal Code, in section 302, in clause (c), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely: 

“Provided that nothing in this clause apply to the offence of Qatl-i-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.” 

 

In view of the above hinted amendment, an offence committed in the name or on the pretext of honour was excluded from the definition of ‘qatl-i-amd’ as contained in Section 302 Clause (c) of PPC, as the phrase “in the name or on the pretext of honour” inserted in the first proviso to Section 302(c) of PPC clearly indicates that the murder committed in the name or on the pretext of honour had to be calculated as a murder committed with premeditation in the background of honour. Reliance in this regard may safely be placed on the case reported as “Muhammad Qasim v. The State” (PLD 2018 SC 840). 

Similarly, certain amendments were also made in Section 345 of Cr.P.C., introducing sub-section 2-A, and the same reads as under:- 

“(2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compound subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the 

case.”   

 

Similarly, as per provisions of sub-section (7) to Section 345 of Cr.PC, no offence shall be waived or compounded save as provided by this Section and section 311 of PPC. Another significant amendment has been introduced by amending section 299 of PPC and introducing clause (ee) through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, whereby an offence that has been committed in the name or on the pretext of honour has been categorized as an offence falling within the meaning of ‘fasad-fil-arz’. As per provisions of section 311 of PPC, if the principle of  fasad-fil-arz is attracted, the court may having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment  of life or imprisonment of either description for a term of which may extend to fourteen years as ta’zir. The sole proviso to this section further provides that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life. 

6. Submission made by learned counsel for petitioner that legal heirs of deceased who happened to be the parents of deceased, have forgiven the accused/petitioner and recorded their statements qua compounding the offence, therefore, accused/petitioner is entitled to be released on bail on the basis of compromise, is of little avail as in view of the amendments as made in sections 299(ee), section 302(c) and section 311 PPC read with proviso to section 345(2-A) and 345 (7) of Cr.PC, a convict in an honour killing case, still can face sentence of imprisonment for life even if legal heirs of a victim have settled the matter by way of compromise and pardoned the convict. Therefore, the accused/petitioner is not entitled to be released on bail on the basis of any statement made by the legal heirs of the deceased whereby they have compounded the offence as in view of provisions of Sections 345(2-A) & 345(7) of the Cr.P.C., no offence shall be waived or compounded save as provided by the provisions of section 311 PPC.  

7. The next submission of learned counsel for the petitioner is that there exists a glaring conflict between the ocular account and medical evidence; therefore, the case of the petitioner necessitates further inquiry entitling him to the grant of post arrest bail. According to him, as per witnesses of ocular account, the fire shot made by the accused/petitioner landed on the back of the deceased whereas as per postmortem report, the injury present on the back of the deceased has been shown as an everted wound, suggesting that it was an exit wound. This argument hardly holds any water for the simple reason that the sole argument qua conflict between medial evidence and ocular account can hardly be appreciated without deeper appreciation of evidence which exercise is not warranted at bail stage  particularly keeping in view the peculiar facts and circumstances of the instant case wherein accused/petitioner alone is named in the FIR with specific role of making fire shot on the person of none other than his real sister and he thereafter remained fugitive from law for the period of around 5 months and when rounded up got recovered firearm that was also sent to the concerned quarters for its matching with the crime empty secured by the investigator from the spot that had already been sent to the concerned quarters much prior to the recovery of firearm from the petitioner and last but not the least, accused/petitioner upon conclusion of investigation has been found involved in the commission of alleged crime. There is no cavil with the proposition that a case of further inquiry presupposes a tentative assessment of the material brought on record starting from the time of lodging of the FIR and the material collected during the course of investigation till the conclusion of the investigation, which in turn creates some doubt with respect to the involvement of an accused in the commission of crime, whereas the expression ‘reasonable grounds’ refers to grounds that may be legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary, or presumptive. In case “Ata-ullah v. The State” (2014 SCMR 1210), the Supreme Court of Pakistan observed that for all intents and purposes the doctrine of further inquiry demonstrates notional and exploratory assessment that may create doubt regarding involvement of an accused in the commission of crime. Even in case “Mst. 

Parveen Akhtar v. The State and others” (2002 SCMR 1886), it was observed that mere possibility of further inquiry which existed almost in every criminal case was not a ground for treating the matter as one of further inquiry falling within the purview of section 497(2) of Cr.PC. In the instant case, however, upon tentative assessment of the material available with the prosecution, this Court is convinced that reasonable grounds exist for believing that the accused/petitioner has committed a nonbailable offence falling within the ambit of the prohibitory clause as contained in Section 497 of Cr.PC, inasmuch as overwhelming evidence is available on the record to connect the accused/petitioner with the commission of the alleged crime. No case of post-arrest bail at all is made out. Petition is dismissed. 

8. Needless to observe that observations made hereinabove are tentative in nature and shall be considered to have been made only to the extent of the decision of instant bail petition and shall not in any manner influence the trial court while deciding the main case. The learned trial court is directed to proceed to decide the main case expeditiously, preferably within a period of four months, from the receipt of certified copy of this Order. Office is directed to transmit a copy of this Order to learned trial court, forthwith.    The research assistance provided by  

Mr. Muhammad Afzil, Civil Judge/Research Officer, Research Center, Lahore High Court is appreciated.    

 

                     (Shakil Ahmad)                                                  Judge 

  Approved for reporting 

                 

 

Narcotics Bail

             Use of Modern devices

PLJ 2024 SC (Cr.C.) 8

We are aware that section 25 of the Act excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, we fail to understand why the police and members of the Anti-Narcotics Force (‘ANF’) do not record or photograph when search, seizure and/or arrest is made. Article 164 of the Qanun-e-Shahadat, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws. 

6. In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in-built camera. In respect of those arrested with narcotic substances generally there are only a few witnesses, and most, if not all, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. It may also prevent false allegations being levelled against ANF/police that the narcotic substance was foisted upon them for some ulterior motives.  

 7. Those selling narcotic substances make their buyers addicts, destroy their state of mind, health and productivity, and adversely affect the lives of their family members. The very fabric of society is damaged. ANF and the Police forces are paid out of the public exchequer. It is incumbent upon them to stem this societal ill. The Prosecution services, paid out of the public exchequer, is also not advising the ANF/police to be do this simple act of making a recording and/or taking photographs as stated above.  

8. A consequence of poor investigation, not supported by evidence adversely affects the cases of the prosecution. The courts, which too are sustained by the public exchequer, are burdened with having to attend bail applications because the commencement and conclusion of the trial is delayed. It is time that all institutions act professionally and use all available lawful means to obtain evidence. A credible prosecution and adjudication process also improves public perception. We expect that all concerned will attend to these matters with the attention that they demand, because the menace of narcotic substances in society has far reaching consequences: by destroying entire households, creating societal problems and casting a heavy financial burden on the State when drug addicts are required to be treated. Moreover, research indicates that drugs addicts resort to all methods to obtain drugs, including committing crimes. 

9. Copy of this order be sent to the Secretary Ministry of Narcotics Control, Government of Pakistan, Director-General, Anti-Narcotics Force, the Secretaries of the Home Departments of all the provinces, InspectorGenerals of Police of all the provinces and of the Islamabad Capital Territory. They may also consider whether they want to amend the ANF/Police rules to ensure making video recordings/taking photographs whenever possible with regard to capturing, preserving and using such evidence at trial.

motive

                           Motive

Motive

                          2024 SCMR 1421         

    Mitigating circumstances ---

*  Recovery of weapon of offence disbelieved *  Absence of motive Single stab motive - Single wound Appellate Court / High Court had ( rightly ) disbelieved the recovery of Churri ( knife ) on the pointation of the petitioner / convict from an open place --- Furthermore , absence of motive in the FIR , non - proving of the motive introduced by the prosecution witnesses at the trial about the desire of the petitioner / convict to marry the deceased prior to her marriage with a prosecution witness , and single stab wound on the abdomen of deceased had rightly been considered as mitigating circumstances by the High Court to award lessor sentence of imprisonment for life to the petitioner --- Petition was dismissed , leave to appeal was refused , and conviction and sentence of imprisonment for life awarded to the accused by the High Court was maintained .

Powers of Courts

 

      

             Powers of Courts in Pakistan 

Jurisdiction & Powers of Courts in Pakistan.            

               SUPREME COURT 

 1. 184(1) Original jurisdiction in inter-governmental disputes, issues declaratory judgments;

 2. 184(3) Enforcement of Fundamental Rights involving an issue of public importance;

 3. Art 185(2) Appeal from judgment/order of High Court in criminal cases, tried in original and/or appellate capacity and having imposed death penalty or life imprisonment;

 4. Art 185(2) Appeal in civil cases when the value of claim exceeds fifty thousand rupees;

 5. Art 185(2) Appeal when High Court certifies that the case involves interpretation of the Constitution;

 6. Art 185(3) Appeal (subject to grant of leave) from High Court judgment/order;

 7. Art 186 Advisory jurisdiction on any question of law involving public importance referred by the President;

 8. Art 187 To issue directions/orders for doing complete justice in a pending case/matter;

 9. Art 188 To review any of its own judgment/order;

 10. Art 204 To punish for its contempt;

 11. Art 212 Appeal from Administrative courts/tribunals; and

 12. Art 203F Its Shariat Appellate Bench hears appeals from judgments/orders of Federal Shariat Court.

 

* FEDERAL SHARIAT COURT:

  1. Art 203-D  To determine whether a provision of law is repugnant to the Injunctions of Islam;

 2. Art 203 DD  Revisional Jurisdiction in cases under Hudood laws;

 3. Art 203 E  To review its judgment/order;

 4. Art 203 E  To punish for its contempt; and

 5. Under Hudood laws, hears appeals from judgment/order of criminal courts.

HIGH COURT:

 1. Art 199(1) to issue 5 writs namely mandamus, prohibition, certiorari, habeas corpus and quo warranto;

 2. Art 199(2) Enforcement of Fundamental Rights;

 3. Art 203: To supervise/control subordinate courts;

 4. Art 204: To punish for its contempt;

 5. To hear appeal under S.100 of CPC;

 6. To decide reference under S.100 of CPC;

 7. Power of review under S.114 of CPC;

 8. Power of revision under S.115 of CPC;

 9. Appeals under S.410 of Cr.P.C;

 10. Appeals against acquittal under S.411-A(2) of Cr.P.C

 11. Appeals against judgment/decree/order of tribunals under special laws;

 12. To issue directions of the nature of habeas corpus under S.491 of Cr.P.C;

13. Power of revision under S.439 Cr.P.C

 14. Hedge Inter-Court appeal at Lahore High Court and High Court of Sindh, 

 * DISTT. & SESSIONS JUDGE/ADDL. DISTT. & SESSIONS JUDGE

 1. Appeal against judgment/decree of a Civil Judge under S.96 of CPC;

 2. Appeal against order under S.104 of CPC;

 3. Power of revision under S.115 of CPC;

 4. Original jurisdiction in suits upon bills of exchange, hundies or promissory notes under Order XXXVII of CPC;

 5. Murder trial under S.265  of the Cr.P.C;

 6. Criminal trial under Hudood laws;

 7. Appeals under S.408 of Cr.P.C;

 8. Power of revision under S.439-A of Cr.P.C; 

 9. To issue directions of the nature of habeas corpus under S.491 of Cr.P.C; and

10. Decides pre-arrest bail applications under S 498 of the Cr. PC.

11. Being An  exofficio  Justice  of  the  Peace  may  issue  appropriate  directions  to  the  police  authorities concerened  on  a  complaint  regarding (i)  nonregistration  of  a  criminal  case; (ii)  transfer  of  investigation  from  one  police  officer  to  another;  and (iii)  neglect,  failure  or  excess  commited  by  a  police  authority  in  relation  to  its  functions  and  duties.

 * CIVIL JUDGE 1ST CLASS:

  1. To try all civil suits, there is no pecuniary limit on its jurisdiction;

 2. In certain jurisdictions also designated as Rent Controller;

 3. In certain jurisdictions also designated as Judge, Family Court;

 * CIVIL JUDGE 2ND CLASS:

 1. To try civil suit up to the value of Rs. 50,00,00/-  ( Rs. 5- Million) ; and

 2. In certain jurisdictions designated as Rent Controller/Judge, Family Court.

 * CIVIL JUDGE 3RD CLASS:

 To try civil suit up to the value of Rs. 10,00,000/- ( Rs. 1-Million)

 * Judicial MAGISTRATE 1ST CLASS:

 1-To try offences punishable up to 3 years imprisonment and forty-five  thousand rupees fine.

2- As Mobile Court under S. 12 Cr.P.C

3- As Judicial Magistrate under S 14 Cr.P.C As Area Magistrate to handle 

         i- Remands ,(Physical. Judicial. Transit) 

         ii- Discharge Reports etc

 * MAGISTRATE 2ND CLASS:

 To try offences punishable up to 1 year.

 * MAGISTRATE 3RD CLASS:

       Fifteen  thousand rupees fine

**Judicial Magistrate empowered under S.30 of Cr.P.C._

___To try All offences not punishable with death.

      But can't pass a sentence of death or imprisonment exceeding 7 years.

Third Party Interest

            Third Party Interest

                           PLD 2024 SC 600

 Inheritance cases where third party interest has been created in the property.

     Commencement of limitation period----

Burden of proof on claimant to prove that he was not aware of having been deprived of his inheritance share --- Principle stated . 

    Court while dealing with inheritance cases tread very cautiously to balance the proprietary rights of the legal heirs of the deceased Muslim owner and third party , who has acquired proprietary rights therein , and that too , in good faith and for valuable consideration . It is for this reason that , legal heirs must be vigilant and not indolent regarding their proprietary rights in their sharai share of inheritance . There is a stark distinction between cases in which an heir has been deprived of his sharai share and disregarded at the time of recording of the inheritance mutation , and those cases in which the heir comes forward to seek his sharai share after third-party rights in the subject land have been created . To succeed in respect of the former category of cases , as compared to the latter , is legally less cumbersome , as it is not hurdled by the rigors of limitations the possession over the inherited property by one heir is considered as constructive possession on behalf of all the heirs , and the cause of action would only arise , when the deprived heir seeks his share and the same is denied by the other in possession of the inherited property . However , to succeed in respect of the latter category of cases , where third-party interest is created in the inherited property , is legally more problematic , as the legal heir would then have to face the wrath of the period of limitation . The burden ofproof would rest on the claimant heir to demonstrate and prove that he was not aware of having been deprived , give cogent reasons for not challenging the long-standing property record , or showing complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of his interest in the property and yet proceeded to acquire the same . It is when faced with such legal handicap that the claimant heir may seek exception to the bar of limitation provided under Section 18 of the Limitation Act , 1908 by establishing that he was kept oblivious to the cause of action or accrual of his rights through fraud , and therefore , was an " injuriously affected person . Thus , in cases , where the claimant heir , being an " injuriously affected person has a right to sue , does not institute the suit claiming his right within the prescribed limitation period , no fresh period of limitation can be available to him , his legal heir (s) or any other person who derives his right to sue from or through him (the injuriously affected person).

Correction of CNIC

 

                   PLD 2012 LAH 378

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.

Cause of Action

                       Cause of Action

                    Order 2 Rule 2 CPC

         

PLD 2023 Lahore 601

    There are three specific terms used in Order II Rule 2 which are required to be interpreted as these shall have bearing on a just decision of this case. These terms are cause of action, claim and relief. 

The expression cause of action has not been defined in the Code although several attempts have been made in the judgments to explain it. Various authorities have referred it to mean that every fact, which if traversed, it would be necessary for the plaintiff to prove to support his right to a judgment by of the court. This definition would generally suffice but it does not necessarily provide a satisfactory answer as to what is the cause of action. This Court shall not make an attempt to define the term cause of action in recognition of the fact that the scope thereof is vague and that it must be applied broadly to carry out the functions of the Code which are designed to achieve convenience and efficiency in trial of the suits. This policy of the Code is indubitably brought forth by Order II Rule 1 according to which all matters in dispute between the parties relating to the same transaction be disposed of in a single suit. Generally looking at the provisions of Orders I & II of the Code would make it evident that when the right recognized by law is violated constituting a legal wrong, a cause of action can be said to have arisen. A fortiori, it is the legally recognized wrong that creates the right to sue. It is axiomatic that facts which do not represent the existence of right in the plaintiff with a corresponding duty in defendant to observe that right and an infringement of that right or duty is no cause of action. In Stone v. Cass, 34 Okla. 5, 124 P. 960, the Court stated that “There can be no cause of action, unless there is a wrong for which redress is afforded. Nor can there be a subject of action, unless there is a right and a wrong done to it. The right might exist for ages, but is not a subject of action until it is infringed upon. The wrong might be continuous, but is not a cause of action, unless relief is afforded.” Cause of action thus comprises material facts (to borrow the term from the Code) constituting the right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it. The logical progression of this rule dictates that a cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates the right to sue which gives rise to a claim enforceable in court. Each cause of action consists of points the plaintiff must prove, and all these elements must be satisfied before the court can take action. This broad categorization of the rule is in accord with the scheme of the Code.

Additional Evidence

 Additional Evidence

             

                  2023 S C M R 1155

            Civil Procedure Code 1908)---

----O. XLI, R. 27---Production of additional evidence in Appellate Court---Scope---Order XLI, Rule 27, C.P.C. states that generally, no evidence is to be produced at the Appellate stage---But there are two exceptions to the general rule i.e., additional evidence may be produced at the appellate stage if, (i) the court from where the appeal is preferred has refused to admit evidence which it ought to have admitted; or (ii) the Appellate Court requires any document in order for it to pronounce a judgment.

Civil Court power

   Civil Court power

   

           P L D 2022 Supreme Court 699

              Civil Procedure Code 1908.

----S. 9---Constitution of Pakistan, Art. 199---Matters decided by Special/Administrative Tribunals---Limited jurisdiction of Civil Courts---Grounds upon which the legality of an order passed by administrative tribunals or authorities, such as the revenue hierarchy, may be challenged before the civil courts stated.

  Following are some of the grounds upon which the legality of an order passed by administrative tribunals or authorities, such as the revenue hierarchy, may be challenged before the civil courts:

i.      Whether the matter falls within the scope of the power conferred by the relevant statute upon the administrative tribunal making the impugned order;

ii.     Whether the impugned order could have been made under the relevant statute by the administrative tribunal;

iii.    Whether the impugned order states the ground/reason on which it has been made;

iv.    Whether the ground/reason stated in the impugned order falls within the grounds stated by the relevant statute;

v.     Whether a fair and meaningful opportunity of hearing was provided to the aggrieved person before making the impugned order; and

vi.    Whether the finding recorded in the impugned order on disputed fact(s) is based on some evidence.

Execution by Family court

 Execution by Family court

                  P L D 2022 Lahore 600

         Before Shahid Bilal Hassan, J

SAWERA IKRAM---Applicant

Versus

AMIR NAVEED---Respondent

Transfer Application No. 71691 of 2021 (and connected T.As.), decided on 15th December, 2021.

(a) Family Courts Act (XXXV of 1964)---

---Preamble---Object, purpose and scope---Purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in ultimate justice between the parties---Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law---Court can exercise its own powers to prevent course of justice being refracted from the path---Main object of Family Courts Act, 1964, is for protection and convenience of the weaker and vulnerable segments of society i.e. women and children.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840 rel.

(b) Family Courts Act (XXXV of 1964)---

----S.13 (4)---Civil Procedure Code (V of 1908), O.XXI---Execution of decree---Procedure--- Provision S. 13 (4) of Family Courts Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by Civil Court as directed by general or special order by District Judge---When a Civil Court is designated and entrusted with duties to execute decrees passed by a Court: Civil or Family, it enjoys powers vested under O. XXI, C.P.C.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5, 13(4) & 25-A---Civil Procedure Code (V of 1908), S.46---Execution of decree, transfer of---Principle---Applicant was wife of respondent who sought transfer of execution proceedings from the district where property was situated the place of her abode---Validity---Held, there was no need to transfer execution petition to any other Court out of one district to other district where judgment-debtor resided---Executing Court seized of the matter could adopt procedure provided under law by sending a precept through proper channel to the Court where judgment debtor resided or had movable/immovable property so as to attach the same and recover decretal amount as arrears of land revenue, following methodology as provided in S.46, C.P.C.---When all proceedings at trial stage were carried out at a place where women and children resided, forcing them to get transferred execution petition or decree to some other Court, out of District, would cause inconvenience and troubles to them, such was not the myth and essence of Family Courts Act, 1964, as highlighted in its 'Preamble'---High Court for future proceedings directed all District Judges and Family Courts in Punjab Province that while passing money decree in respect of maintenance allowance, alternate prices of dower or dowry articles be fixed and provisions of S.13(3) of Family Courts Act, 1964 should be adhered to---High Court further directed that District Judges to designate a Civil Judge as Executing Court in their Districts as well as Tehsils, where execution petitions for satisfaction of decrees passed by Family Court would be filed and executed/satisfied in accordance with law by adopting all measures in that regard---High Court also directed that in case judgment debtor resided in some other District and owned property, precept would be transmitted for attachment purposes and further proceedings were to be taken in accordance with law---Application was disposed of accordingly.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128; Haji Muhammad Nawaz v. Samina Kanwal 2017 SCMR 321 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 ref.

Moazzam Saleem for Petitioner.

Muhammad Mahmood Chaudhry as amicus curiae.

ORDER

SHAHID BILAL HASSAN, J.---This order will dispose of the captioned transfer application as well as following transfer applications seeking transfer of execution petitions:-

1. T.A. No.68040 of 2021 titled Mst. Saba Nasir v. Muhammad Uzman, 2. T.A. No.68728 of 2021 titled Muafia v. Zahid Mehmood, etc., 3. T.A. No. 68832 of 2021 titled Sumera Ameen, etc. v. Faryad Ali, 4. T.A. No.69289 of 2021 titled Iram Farhan etc. v. Raja Farhan Mehmood, 5. T.A. No.68970 of 2021 titled Mst. Rehana Kausar v. Mudasir Hussain, 6. T.A. No.68740 of 2021 titled Iram Shehzadi v. Shabbih Haider, 7. T.A. No. 67912 of 2021 titled Syeda Umm-e-Laila, etc. v. Syed Qamar Abbas Shah, etc., 8. T.A.No.55220 of 2021 titled Sitara Iqbal, etc. v. M. Rashid, 9. T.A.No.70294 of 2021 titled Khalida Parveen v. Adnan Bilal Sial, 10. T.A.No.67734 of 2021 title Mst. Maryum Yousaf v. Qaiser Mehmood, 11. T.A.No.59167 of 2021 titled Mst. Fozia Amjad v. Amjad Farooq, 12. T.A.No.69553 of 2021 titled Mst. Nadaas Bibi, etc. v. Ghulam Rasool, 13. T.A.No.56094 of 2021 titled Nusrat Bibi v. Yasir Mehmood, 14. T.A.No.69898 of 2021 titled Mst. Tayyaba Nafees, etc. v. Tayyab Ali, 15. T.A.No.67606 of 2021 titled Pro. Dr. Umbreen Javed v. Noshad Mahmood, 16. T.A.No.65187 of 2021 titled Ayesha Bibi, etc. v. Ajmal Shahzad, etc., 17. T.A.No.61499 of 2021 titled Azra Parveen v. M. Shafique, 18. T.A.No.59746 of 2021 titled Naveera Irshad v. M. Abdullah, 19. T.A.No.59362 of 2021 titled Mst. Noor Jahan v. Saif Ullah, 20. T.A.No.57711 of 2021 titled Asma Liaqat, etc. v. Mubashir Raheel Riaz, 21. T.A.No.55971 of 2021 titled Asma Yaqoob v. Jamshed Ali, 22. T.A.No.57230 of 2021 titled Fouzia Yasmeen, etc. v. Khalid Mahmood, 23. T.A.No.68994 of 2021 titled Syeda Ayesha Shakeel v. Syed Kamran Khalid, 24. T.A.No.58421 of 2021 titled Mst. Anam Bibi, etc. v. Muhammad Waqas Adil, 25. T.A.No.65274 of 2021 titled Khalida Usman v. Muhammad Shahzad, 26. T.A.No.68227 of 2021 titled Mst. Rehmat Bibi, etc. v. Muhammad Arshad Zaman, 27. T.A.No.69863 of 2021 titled Tayyaba Manzoor v. Nasir Ali, 28. T.A.No.69908 of 2021 titled Mehvish Bibi v. Atta Ullah, 29. T.A.No.42451 of 2021 titled Mst. Shamim Akhtar v. Muhammad Suleman, 30. T.A.No.61325 of 2021 titled Tayaba Afzal v. Farrukh Yasin, 31. T.A.No.69429 of 2021 titled Mugheesa Munir v. Muhammad Rizwan, 32. T.A.No.65380 of 2021 titled Sumaira Arif v. Shahbaz Ali, 33. T.A.No.59839 of 2021 titled Shumyla Mansha v. Khurram Shahzad, 34. T.A.No.67789 of 2021 titled Mst. Samina Bibi v. Muhammad Bukhsh, 35. T.A.No.69567 of 2021 titled Nazish Nazir v. Muhammad Bilal, etc., 36. T.A.No.55531 of 2021 titled Pathani Bibi v. Muhammad Ikram, 37. T.A.No.67640 of 2021 titled Iqra v. Muhammad Nadeem, 38. T.A.No.54307 of 2021 titled Amna Yasin, etc. v. Muhammad Kalim, 39. T.A.No.60947 of 2021 titled Amna Nasir, etc. v. Muhammad Usman Baig, 40. T.A.No.69005 of 2021 titled Afshan Rani, etc. v. Khurram Shahzad, 41. T.A.No.69829 of 2021 titled Mst. Muqadas Bibi v. Asad Iqbal, 42. T.A.No.59170 of 2021 titled Mst. Shazia Parveen v. M. Younas, 43. T.A.No.70461 of 2021 titled Mst. Rukhsana Aslam, etc. v. Khalid Mehmood, 44. T.A.No.65771 of 2021 titled Mst. Ruqia Naz, etc. v. Shakeel Ahmad, 45. T.A.No.71406 of 2021 titled Sumera Bibi, etc. v. Muhammad Saleem, 46. T.A.No.70924 of 2021 titled Mst. Nirma Khalid v. Muhammad Amir Shahzad, 47. T.A.No.71438 of 2021 titled Naeema, etc. v. Javaid Iqbal, 48. T.A. No.71416 of 2021 titled Khalida Parveen etc. v. Muhammad Arshad, 49. T.A.No.66214 of 2021 titled Kaneez Fatima v. Iftikhar Ahmad and 50. T.A.No.64567 of 2021 titled Shafqat Parveen, etc. v. Amjad Hussain.

2. Heard.

3. Preamble of the Family Courts Act, 1964 elaborates the purpose of promulgation of the enactment, which reads:-

'Whereas it is expedient to make provision, for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.'

Meaning thereby the Family Courts Act, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path; reliance is placed on Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others (2010 SCMR 1840). The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that "Nikah" is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.

4. Having said above, now when after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and subsection (4) of the said Section is relevant which reads:-

'The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.'

Section 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 and 11 shall not apply to the proceedings before any Family Court. The bar contained in this section has been manifestly addressed by the Apex Court of the country in Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128), wherein it has invariably been held:-

'Thus the technical trappings of execution provided in the C.P.C. are excluded from application before the Family Court in execution of a decree for maintenance. Section 13(3) of the Act itself provides that "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decree-holder." This provision in the Act empowers the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. In the West Pakistan Land Revenue Act various modes of recovery of arrears of land revenue are spelt out and one of the modes provided for recovery of arrears of land revenue is by selling the immovable property of the defaulter.' (Underline for emphasis)

Therefore, in order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908, which enumerates:-

'Precepts.---(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree.

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.'

It is not meant that the provisions of the Code of Civil Procedure, 1908 are going to be followed in stricto sensu rather the procedure provided therein is to be adhered to by the Family Court because the Family Court is governed by the general principle of equity, justice and fair-play. In addition to this, if the judgment debtor is employed in any department his salary can also be ordered to be attached by the concerned quarters through proper channel and he can be forced to satisfy the decree; thus, when the main purpose of the enactment is to protect the convenience of the weaker and vulnerable segments of the society i.e. women and children, the same cannot be achieved by transferring the decree to a place where they (women and children) do not reside because they will suffer the agony of travelling from a place to the other in order to pursue the proceedings in execution petition before the transferee Court and it would also endanger their lives at the hands of judgment-debtor because of obtaining a decree against him (judgment-debtor). When we go through the ratio of judgment Amjad Iqbal (supra) it comes on surface that the Executing Court of a decree passed by a Family Court may adopt every method in order to get the decree satisfied including attachment of property (movable or immovable), selling the property, attachment of the salary and ordering for arrest of the judgment debtor; all these methods are not provided under the Family Courts Act, 1964 but the same are taken from the Code of Civil Procedure, 1908 as these methods are not inconsistent with the provisions of the Act, 1964 for the purpose of satisfaction of the decree because proceedings of the Family Court, whether as a Trial Court or an executing Court are governed by the general principle of equity, justice and fair-play, as has been held in Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321). In addition to this, in a judgment reported as Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365), the Apex Court has invariably held:-

'Family Court was a quasi-judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principle of fair hearing and trial.'

5. Pursuant to the above, when all the proceedings at trial stage are carried out at a place where the women and children reside, forcing them to get transferred the execution petition or decree to some other Court, out of District, would certainly, as stated above, cause inconvenience and troubles to them, which is not the myth and essence of the Family Courts Act, 1964 as has been highlighted in its "Preamble".

6. Concluding the above discussion and observations, the following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-

1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, 'Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.'

2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.

3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law.

7. In the light of the above, the instant petition and transfer applications, detailed supra, are hereby disposed of, accordingly.

MH/S-6/L Order accordingly.