IPSI DIXIT OF POLICE

 Ipsi dixit ..من مانی حرکات.of Police 

is not binding upon the Court. I.O. only to collect evidence and not to give findings upon innocence or guilt of accused.

2010 SCMR 1791...1992 SCMR 2055

 Zzzzzz

 ملزم۔۔۔بریت

249-A.CrPc. 

  It is Power of Magistrate to acquit accused at any stage of trial if :-

 * After hearing the prosecutor and the accused and 

*For reasons to be recorded, 

* The charge is considered groundless or 

*There is no probability of the accused being convicted of any offence.

* It is an exception to the general rule of acquittal after full trial. 

*This is a emblem of good will between collective good of society and rights of an individual offender. 

* Scheme of Law is to save the offender from agony of full trial. 

       PLJ 2004 S.C. 2.

*It does not curtail  the power of High Court under S. 561-A or in derogation of it. PLD 1981 S.C. 607. 

* Trial Court is free to peruse the police papers, other material and legal aspect of the case. NLR 1999 Cr.L.J. 137. 

* Where Court is reasonably convinced that a criminal charge cannot be sustained, going on trial is not necessary, but charge cannot be said to be groundless within the meaning of S. 249-A, Cr.P.C. if reasonable opportunity is not provided to prove the allegation. Recording of prosecution evidence is 

not a condition precedent for acquitting accused. Magistrate can deal with application at any time irrespective of the fact whether charge is framed or not. 2003 YLR 2749.

* Magistrate under this section is bound to issue notice to the State and that discretion can only be exercised after hearing both parties and after submission of challan in the Court. 2005 PCr.LJ 252.

Audi Alteram partem

* Requirements are that the hearing is to be given to the prosecution and counsel of accused and that reasons are to be recorded in support of the conclusion that charge is groundless or that there is no probability of the accused being convicted. 2003 YLR 1390. 

* Hearing of prosecutor and the accused. 2000 MLD 220. 

* Court has to satisfy itself that the case under consideration is a fit case for its interference even at preliminary stage. 2000 MLD 220. 

* Charge groundless or that there is no probability of the accused being convicted. PLD 1996 Kar 253. 

*No restriction on the power of trial Court to pass order without framing charge. PLJ 1999 Cr.C. Lah. 265. 

*Court not powerless to secure attendance of witness, PLD 1984 S.C. 428; 

* The court has to provide opportunity hearing to the State, 1986 PCr.LJ 1824; 1987 PCr.LJ 1633; 1990 PCr.LJ 113; and the counsel of accused. 1994 SCMR 798. 

* Operative part of the judgment not revealing application of independent judicial mind, judgment not sustainable in the eye of law. 1988 PCr.LJ 2002. 

* It is necessary that an application is made by the accused. 1990 MLD 206. 

* Magistrate to examine 

(i) FIR     (ii) Statement of P.Ws. u/S. 161        (iii) Report of police officer u/S. 173;

 (iv) Charge framed before arriving at the decision whether there is no probability of the accused being convicted. Acquittal without looking such a material on record illegal, set aside. 2000 MLD 220; PLD 1970 S.C. 173; PLD 1964 S.C. 829. 

* It is necessary that prosecution should be given opportunity to prove the allegation levelled in the FIR. 2000 PCr.LJ 752. 

* Witnesses not cross examined, their examination in chief would be deemed to be admitted. PLJ 2003 Lah. 557.

Remedy. 

An order passed u/S. 249-A amounts to an order of acquittal, as such the remedy to assail the same lies in filing appeal against acquittal u/S. 417, Cr.P.C. 1998 MLD 1605; NLR 1999 Cr. Lah. 185. 

* Prosecution not given opportunity to prove allegations--Cannot be said that there was no probability of conviction. 2000 PCr.LJ 752

Co Sharer

                Co Sharer 

         PLJ 2010 AJ&K 112

Present: Rafiullah Sultani, J.

MUHAMMAD ZAREEF KHAN and another--Petitioners

versus

MUHAMMAD MAROOF and 6 others--Respondents

C.R. No. 12 of 2008, decided on 4.4.2009.

Co-sharer--

----Every co-sharer has interested in each and every inch of joint property and one co-sharer could not be permitted to alter the character of property without consulting the other co-sharer.        [P. 117] A

                                                                                 1994 CLC 2409, 2000 CLC 1138, ref.

Civil Procedure Code, 1908 (V of 1908)--

----S. 115, O.XXXIX, R. 2(3)--Specific Relief Act, 1877, Ss. 42 & 54--Cancellation of interim injunction--Undertaking though affidavit to remove superstructure if decree is passed in favour of petitioner--Held: Not a valid & legal ground for cancellation--One of the conditions to be considered for the issuance of injunction is to avoid multiplicity of the suit.        [P. 117] B & C

Joint immovable property--Co-sharer's rights--Extent of--In case of joint immovable property, each co-sharer deemed to be interested in every inch of subject-matter irrespective of quantity of his interest--One co-sharer cannot be allowed to act in a manner which constitutes an invasion on the right of other co-sharer--Co-sharer in possession of a portion of joint property cannot change nature of property in his possession unless partition takes places by metes and bounds."

It was held in case titled Sardara & 04 others Vrs. Muhammad Khan, reported in PLD 1998 SC of Pak. 1509, cap. (b) , which reads as under:--

"(b) Co-owner----

----Constitution of Pakistan (1973), Art. 185--Cutting and selling trees growing on joint land by one co-owner to the exclusion of other co-owners--Entitlement challenged--Trial Court had dismissed plaintiff's suit on the ground that he was no longer co-owner of property in question wherein trees had grown and were being cut and sold--Appellate Court, however, set aside judgment and decree of trial Court and decreed plaintiff's suit--Judgment and decree of Appellate Court which was affirmed in revision by High Court was based on correct appreciation of documentary evidence adduced by plaintiff--Appellate Court and High Court had rightly maintained that land in question, being joint and having not been partitioned between parties, defendant could not unilaterally cut and sell trees growing there, or raise any construction thereon-Judgment and decree of High Court did not call for interference by Supreme Court which were maintained in circumstances."

"(c) Specific Relief Act----

Stay against Co Sharer

----Ss. 42 & 54--CPC, O. XXXIX, Rr. 1 & 2--Suit for declaration and permanent injunction--Prayer for temporary injunction to restrain defendant (co-sharer) from alienating joint property--Trial Court refused to grant such temporary relief, but Appellate Court granted the same--Validity--All ingredients for grant of temporary injunction coexisted in favour of plaintiff--Non-passing of order to restrain defendant from alienating joint property would have resulted in multiplicity of proceedings-Appellate Court had not committed any irregularity or illegality in setting aside order of Trial Court--High Court dismissed, revision petition."

This view also gets support from case laws; 1994 CLC 2409 and 2000 CLC 1138.

Legal phrases

 

Facta probanda      (facts in issue)

                  1- Material facts pleaded/stated in the Plaint.

             2-The material facts on which the party relies for his claim.

             3.They must be stated in the pleadings.

             4.Only relevant facts to be proved at the trial to establish the fact in issue.

             5. Pleadings must contain only facta probanda and not facta probantia.

•√  Facta probantia (particulars or evidence)

                        (relevant facts)

1-The facts to prove facta probanda (material facts) .

2-Need not be set out in the pleadings.

3-They are not facts in issue, but only relevant facts required to be proved at the trial in order to establish the fact in issue.