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 

                 

 

Chance Witness

           Chance Witness

           

  2023 PCrLJ NOTE 110

      Chance witness --- Scope -- Testimony of chance witness ordinarily was not accepted unless justifiable reasons were shown to establish his presence at the crime scene at the relevant time --- In normal course , the presumption under the law would operate about his absence from the crime spot --- Testimony of chance witness might be relied upon , provided some convincing explanations appealing to a prudent mind for his presence on the crime spot were put forth , when the occurrence took place , otherwise his testimony will fall within the category of suspect evidence and could not be accepted without a pinch of salt.

Cognizance

            Cognizance .    

                  s190 to 199 CrPc. 

Cognizance has not been defined in the criminal procedure code. 

* Literally it means to become aware of.

* Legal Parlance.

* to take judicial notice of an offence snd to probe  whether an offence has been committed or not, and if committed then whether proceed according to provisions of lex lata on the subject.It is , first time judicial  Notice by the Magistrate of commission of an offence and Judicial  check on the police ipsi dixit. 

S. 190 Crpc. Basic Rules for Cognizance.

Empowered to take Cognizance .

* All the Magistrates of the first. 

* Any other Magistrate specially empowered by the Provincial Government .

* Recommended  by  High Court .

 *· upon receiving a complaint. (S. 200 Crpc) 

 *· upon a police report.(S.173 Crpc) 

 *· upon information received from any person other than a police officer, 

 * Upon his own knowledge that such offence has been committed. 

Prerequisites. 

Cognizance will be  taken only when there is a prime facie case to proceed further. 

Procedure after Cognizance. 

* He may try himself or send to the Court of Sessions for trial.

Exceptions. 

   1.                  S.194......High Court                          

 (1) The High Court may take cognizance of any offence  as provided in any Letters Patent or 

Order by which a High Court is constituted or continued, or any other provision of this Code. 

2. S. 195 .   Contempt of Lawful authority                        of public servants

   (1) No Court shall take cognizance: -- 

(a) Any offence punishable u/Ss. 172 to 188 PPC. 

        * Except on the complaint in writing of the public servant concerned, or 

       * of some other public servant to whom he is subordinate; 

(b) Any offence punishable under:-

           Ss.193, 194, 195,196. 199. 200, 205, 206, 207, 208, 209, 210, 211 and 228.

            * when such offence is committed in, 

     * or in relation to, any proceeding in any Court,

 except, on the complaint in writing of such Court or

           of some other Court to which such Court is subordinate; or 

(c)  Of any offence u/Ss. 463,471,475, 476 PPC, when such offence is  committed by a party to any proceeding in any Court in respect of a document produced or given in evidence in such proceeding, except on the complaint in writing of such Court, or of some other Court to which such Court is subordinate. 

* The term "Court" includes a Civil, Revenue or Criminal Court.

But does not include a Registrar or sub-Registrar under the Registration Act, 1908. 

* Upon complaint of appellate  Court. 

*Upon complaint by the principal Court having original civil jurisdiction. 

*Upon complaint by the Appellate Court of inferior jurisdiction, Where appeals lie to more than one Court. 

* where appeals tie to a Civil and also to a Revenue Court, such Court shall be deemed 

to be subordinate to the Civil or Revenue Court according to the nature of the case or 

proceeding in connection with which the offence is alleged to have been committed. 

*The provisions  with reference to the offences apply to the abetment, attempts and conspiracies of such offences. 

Withdrawal of the Complaint .

  *  The authority to the Public servant may order the withdrawal of the complaint and it shall forward a copy of such order to the Court, and upon receipt thereof by the Court, no further proceedings shall be taken on the complaint.  

S..196.Chapter VI or IX-AIX-A

* No Court shall take cognisance of any offence punishable under Chapter VI or IX-A of the Pakistan Penal Code (except Section 127), or

* Punishable u/Ss 108-A,153-A, 294-A, 295-A,505 PPC, 

unless upon complaint made by order of or under authority from, the Federal Government or the Provincial Government concerned, 

* Some officer empowered in this behalf by either of the two Governments. 

4..  196-A. Criminal conspiracy: 

        No Court shall take cognizance of :-

       * The offence of criminal conspiracy punishable under Section 120-B of the Pakistan Penal Code, 

  * Object of the conspiracy is to commit either an illegal act other than an offence, or 

  * A legal act by illegal means, or 

  * An offence to which the provisions of Section 196 apply, 

Except upon complaint is made by:-

* the Federal Government or

* the Provincial Government concerned or 

*Some officer empowered in this behalf by either of the two Governments, or 

* Object of the conspiracy is to commit any non-cognizable offence, 

* a cognizable offence ,

* not punishable with death,

* imprisonment for life or

* rigorous imprisonment for a term of two years or upwards, 

unless. 

*The Provincial Government or 

* District Prosecutor empowered  by the Provincial Government, has, by order in writing, consented to the initiation of the proceedings: 

* criminal conspiracy is under sub-section (4) of Section 195 .

No such consent shall be necessary196-B. 

Preliminary inquiry by Police Officer:-

* Any offence under the provisions of Section 196 or Section 196-A PPC. 

* officer in-charge of the investigation in the district] may,order a preliminary investigation. 

*No  police-officer not being below the rank of inspector shall have the powers to investigate u/S.155, sub-section (3)

5-  S.197. CrPc .President, etc .

 No Court shall take cognizance of such offence except with the previous 

sanction by:-

*The Federation of the President or

* The Governor of that Province. 

* Against a Judge u/S.19 of the Pakistan Penal Code, or 

* Any Magistrate, or 

*Any public servant , removable  with the sanction of the Federal Government or

*  Provincial Government, 

*Accused of any offence  committed  acting in the discharge of his Official duty,

 Power of President or Governor as to prosecution:

 The President or Governor, as the case may be, may determine the person by whom, the manner in which, the offence or offences for which, the prosecution of such Judge, Magistrate or public servant is to be conducted, and may specify the Court before which the trial is to be held. 

6. S.198. Ch:19,20,21 PPC

   No Court shall take cognizance of an offences under:-

         * CHAPTER XIX, CRIMINAL BREACH OF CONTRACTS OF SERVICE

         * CHAPTER XXI, OF DEFAMATION. 

         * CHAPTER XX,OF OFFENCES RELATING TO MARRIAGE(Sections 493 to 496)

Except 

            * Upon a complaint made by some person aggrieved by such offence: 

             *Some other person may make a complaint. 

                     With permission of Court. 

              *If aggrieved :-

                      + is a woman ,ought not to be compelled to appear in public. 

                       + As per customs and mariners (sailor)of the country. 

                        + is under the age of eighteen years. 

                        + is an idiot or lunatic. 

                        + is from sickness or infirmity unable to make a complaint. 

Armed forces Personnel. 

* Certified by the commanding Officer to enable to make a complaint  through other person. 

* Husband must be aggrieved aggrieved by an offence u/S.494 PPC. 

* With the leave of the Court, make a complaint on his behalf u/s.198-A. PPC. 

  Case of defamation against public servants

7---S.198-A

    Defamation against public servants 

in respect of their conduct in the discharge of public functions offence falling under Chapter XXI of the PPC is committed against :-

+the President, 

+the Prime Minister, +

+ a Federal Minister, 

+Minister of State, 

+Governor, +

Chief Minister or 

+Provincial Minister or

+ any public servant of the Federation or Province. 

Cognizance:-

+ A Court of Session may take cognizance of such offence, 

  + Upon a complaint in writing -made by the Public Prosecutor. 

  + Without the accused being committed to it for trial, 

No Complaint by the Prosecutor unless previous sanction:-

+ Any secretary to the Government authorised in this behalf by the Government concerned in cade of:-

+the President, 

+the Prime Minister, +

+ a Federal Minister, 

+Minister of State, 

+Governor, +

+Chief Minister, 

+Provincial Minister. 

 In the case of any public servant 

                 The Government concerned. 

√  Contents of Complaint. 

+ The facts which constitute the offence alleged, 

+The nature of such offence. 

+ Particulars as are reasonably sufficient to give notice to accused of the offence. 

Limitation. 

√ No Court of Session shall take cognizance of an offence unless 

the -complaint is made within six months from the date of commission of the offence. 

√ Shall follow the procedure prescribed for the trial by Magistrates instituted otherwise than on a police report. 

8.........S.199.   

Adultery or enticing a married woman ; 

•√ No Court shall take cognizance of an offence u/S 497  498 PPC. 

         Except-- 

(a) upon a report in writing made by a police-officer on the complaint of the husband of the 

          woman.

Some Other Person if:- 

       +In absence of the husband, by the person taking care of the woman on his behalf with permission of the court. 

       + Husband is under the age of eighteen years, 

       + An idiot or lunatic, or is from sickness or infirmity unable to make a complaint. 

      may, with the-leave of the Court, make a complaint on his behalf: 

* Husband is serving in any of the armed forces of Pakistan, under conditions which are certified by his Commanding Officer. 

Quashment Of FIR.

                                                      Quashment Of FIR.

 

              Welfare , safety and security of the state of the people is the only climax of Law.Safety of the  suppressed is the only goal of the legislation. But some people  take the undue advantage of the laws formulated to safeguard them and use them to incriminate the innocent people and implicate them with false charges.

 FIR or complaints having false and friviolous facts simply means making false allegations with malicious intention by lodging FIR or complaints based on falsifying the facts and fabricating the circumstances in order to persecute the other person.

 Sections 561-A, 249-A, And 265-K, Cr.P.C.

Inherent powers of High Court are very wide and undefinable. High Court can make all such orders which may do real and substantial justice. (SC) 1969 P.Cr.LJ Shahkot Bus Service.

 

 Lodging of FIR:

1-Lodging of First  before police under section 154 of The Code of Criminal Procedure, 1898 .

2-Complaint made before superintendent of police under section 154(3) CrPC.

3-Cognizance of offence by magistrate under section 190 CrPC.

4-Private complaint made before Magistrate under section 200 crpc.

Grounds for Quashing FIR,

1-The allegations Levelled in the first information report does not prima facie constitute any offence or make out a case against the accused.

2-The FIR or complaint are so absurd and inherently improbable.

3-The first information report and other materials, if any, accompanying the FIR do not disclose a cognizable offence.

4-The evidence collected in support of the same do not disclose the commission of any offence and make out a case against the accused.

5-An express legal bar exists in the code or the concerned Act- providing efficacious redress for the grievance of the aggrieved party.

6-Criminal proceeding is disclosing mala  fide, maliciously instituted with an ulterior motive,

7-The exercise of powers by the High Court under Section 482 CrPC for quashing is based purely on the subjective assessment of the judge. He has to strike a balance between the powers of the courts CrPC and the facts of the case.

(8)No offense is made out from contents of FIR,

(9) Malafides of complainant is patent on the face of the record, 

(10) It converts a pure civil liability into criminal liability. 

Quashment principles.

1= Offence is not made out by examining a complaint without  any extraneous material.

2-If the prosecution was launched for improper motives merely to harass the accused .

2-Its pendency would be an abuse of the process of the Court .

3-Other Facts  impel the Court to conclude that it would not be in the ends of justice to allow the prosecution to continue.1981 SCMR 315. Naseem Beg v. Muhammad Iqbal etc.

4-Quashment is voice of the Law when no other procedure for redress is available.

5-Power under Section 561-A is neither alternative nor additonal;

6-Inherent Power  is to be invoked only in the interest of justice for redress of grievance having no other procedure. The provision is not to be used to divert the ordinary course of criminal procedure. (SC) PLD 1976 SC 461. Khaja Fazal Karim.

7-Normally every case should be allowed to proceed according to law, otherwise it would tend to circumvent the process of law. 1996 SCMR 839, Sheikh Masood Saeed v. Amir Nawaz Khan.

8-Quashment of proceedings u/S. 561-A Cr.P.C. the Application is liable to be rejected when it is made before the facts and circumstances of the case are revealed during the trial.

9-Quashing of proceeding not maintainable where remedy under Section 435 or 439, Cr.P.C. is available. (SC) 1968 SCMR 62. Sher Khan. (SC) PLD 1967 SC 317, Ghulam Muhammad v. Muzammal.

10-U/S. 561-A, Cr.P.C. High Court is competent to quash proceedings even at the stage when challan has not yet reached Court and is under scrutiny with the prosecution branch. 1990 P.Cr.LJ 798. Falak Naz.

Quashment of FIR after submission of challan.

The High Court  has the power to quash an FIR even after filing of Charge Sheet by the prosecution. The parties can also reach a modus vivendi.

Quashing of FIR on the basis of Compromise

The FIR an be quashed on the basis of compromise at any stage by the High Court. The complainant and accused can enter into a compromise. Both the parties can file a joint petition

Quashing of FIR in Financial Disputes

 Quashing the FIR is the obvious recourse when the financial dispute is settled after the parties come to terms.

Remedies for the Accused.

1-Filling a complaint under section 182 PPC

2-A private complaint under section 200 CrPC.

3. A complaint against him under section 211 PPC, whereby the complainant who made false allegations and lodged fabricated FIR shall be punished with imprisonment .

4.May file Complaint before the Court for compensation under section 250 CrPC for accusation without reasonable cause the provisions of this section shall apply to summons and warrant cases also.

Alternative Remedies…….(2006 S.C.M.R. 276) 

 Where the charge was  framed or after the evidence had been recorded. There were also alternative remedies available  under the CrPC sec.265K and 249-A  before the concernedcourt.

          Misuse of the process of law 

               (PLD 2009 S.C. 102) 

 where the Supreme Court held that once an FIR was registered, the superior courts had a set precedent of refraining from direct interference with police investigations in criminal cases as this may be prejudicial to the accused and to the fairness of the proceedings, along with being outside the jurisdiction of the court. The only reasons permitting such an action would if be the FIR’s registration appeared to be a misuse of the process of law or without any legal justification.

Extraordinary Remedy.

(PLD 2006 S.C. 598)

The judge also noted that according to the Supreme Court in Muhammad Mansha. Vs. Station House Officer, P.S. City, Chiniot, etc.” (PLD 2006 S.C. 598) quashing an FIR by resorting to art.199 of the Constitution was an extraordinary remedy which could be invoked only in exceptional circumstances which had not been provided by the petitioner.

CHARGEفرد جرم

                        CHARGE(227-240crpc)

                               

227.        Alteration/addition of the charge.

              May be made:-

                   * At Any time before judgment is pronounced.

         * By Any Court,Transfree or tried the case.

*  May alter or add to any charge.                     * Every such alteration or addition shall be read and explained  to the accused.  

228..     . Effect of alteration /addition

* Charge framed or alteration or addition made under Section 227 .

* Proceedings with the trial will not likely

          * To prejudice the accused in his defence.

         * the prosecution in the conduct of the case,

         * The Court may proceed with the trial as of the original charge. 

229= New trial or trial Suspended :

The Court may either direct a new trial or adjourn the trial for such period .

* Charge framed or altered or added  .

* Proceedings with the trial will  likely

          * To prejudice the accused in his defence.

         * the prosecution in the conduct of the case. 

230.     Stay of proceedings If ;-

* Prosecution of offence in altered charge require previous sanction.

*The case shall be stayed unless sanction is obtained.

 

231.     Recall of witnesses 

After Charge Altered/Added.

        * The charge is altered or added by the Court.

* The trial must have commenced. 

*The prosecutor and the accused shall be allowed to recall or re-summon.

 *The witnesses shall be examined only to such alteration or addition.

 *Any further witness may be Recalled as the Court may think to be material.

232.       Effect of material error: 

* This power vests in  Appellate Court,the High Court, the Court of

                          Session.

* During Proceedings of revision .

* Proceedings under Chapter XXVII CrPc.

*Any person convicted of an offence was misled in his defence.

* Reason must be the absence of a charge or by an error in the charge.

* It shall direct a new trial to be had upon a charge framed.

*The court shall quash the conviction If no valid charge could be framed as the facts proved.

1992 SCMR 1583, Shah  Nawaz.

Errors committed in stating offence or particulars of charge or omissions are not material unless accused in misled by such errors or omissions causing failure of justice. 1992 SCMR 1583, Shah  Nawaz.

 

               Joinder of charges

233.

               Separate charge for distinct offences: 

 

* For every distinct offence ,

* There shall be a separate charge,

* Every charge shall be tried separately .

Illustrations

A is accused of a theft on one occasion, and of causing grievous hurt on another

occasion. A must be separately charged and separately tried for the theft and causing

grievous hurt.

                             Exceptions ==Sections 234, 235, 236 and 239.

 

234.

1-Three offences of same kind within year may be charged together: 

The accused may be charged with and tried at one trial for,

(1)  more offences than one of the same kind.

(2) committed within the space of twelve months.

(3) whether in respect of the same person or not,

(4) Number of  offences shall  not exceed three.

 

                        Same kind.,defined..

* Punishable with the same amount of punishment.

*Under the same section of the Pakistan Penal Code.

 * Or of any special or local law:

 

An offence punishable under Section 379 of the Pakistan Penal Code shall be deemed to be an offence of the same kind as an offence punishable under Section 380 of the said Code.

 

When Attempt is an offence.

      * An attempt to commit an offence under PPC or Any Local & Special Law.

 * Such an attempt is an offence.

 

1992 SCMR 1583, Shah Nawaz. 1980 SCMR 402, Nadir Shah 

While three offences/items are permitted to be combined under one charge as provided u/s 234 Cr.P.C., such limitation was not applicable in the case of Criminal breach of trust in which several offences are committed within a period of one year, are permitted to be combined under one charge as is allowed u/S. 222 (2) Cr.P.C. 1992 SCMR 1583, Shah Nawaz. 1980 SCMR 402, Nadir Shah relied upon.

 

235…       Trial for more than one offence:  

1) Any Accused may be charged and tried at one trial for every  offence- if:-

      

 * Series of acts are so connected  forming the same transaction,    

*More offences  are committed by the same person,

           (2) Offence falling within two definitions: 

          3)The person accused of the following offences may be charged and tried at one trial.

         * If the acts  constituents of offence falling within two or more separate definitions.

      ** Offences are defined or punished under any lex lata,

 

             (4) Acts become a different offence when combined: 

        Accused shall be charged & tried in one trial:=

If several acts, itself or themselves constituting an offence,  when combined make a different offence, without affecting S.71 PPC.

 

AIR 1964 Sindh 23 (24) Faiz Muhammad v. Emperor.

Same transaction. The essential condition is the continuity of action which involves essentially continuity or proximity of time; in other words, the series of acts must be so connected together as to form a single and entire transaction clearly then, continuity of action or proximity of time is very essential element in connecting a series of acts together so as to form a part of the same transaction. AIR 1964 Sindh 23 (24) Faiz Muhammad v. Emperor.

 

236-          Doubt as to offence committed:-

*A single act or series are creating doubt as to what offence(s) committed.

     *The facts proved will constitute the offence committed.

     *The accused may be charged with all or any of such offences,

    *Accused May be charged in the alternative for one or more of the offences.

   *Any number or such charges may be tried at once; 

 

           Illustrations

                (a) A is accused of an act, which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.

     239.          What persons may be charged jointly: 

                            Persons accused of :-

          * The same offence committed in the course of the same transaction

       * An offence and of abetment, or an attempt to commit such offence;

              *More than one offence of the same kind committed within the meaning of S. 234 committed by  jointly within the period of twelve months;

             * Different offences committed in the course of the same transaction

           * Persons accused of an offence includes theft, extortion, or criminal misappropriation,

          * Receiving, or retaining, or assisting in the disposal or concealment of property.  

          * Possession of which  transferred by any such offence committed by the culprits.

         * Abetment of or attempting to commit any such last-named offence:

        * Persons accused of offences u/S. 411, 414 of the PPC or of stolen property .

        * Any offence under Chapter XIl of the PPC for counterfeit coin.

        *Persons accused  under the said Chapter relating to the same coin.

       * Abetment of or attempting to commit any such offence.

 The provisions  of this Chapter shall apply to all such charges.

 PLJ 1991 Cr.C. (Lah.) 465 Sh. Muhammad Aslam et

Joint trial of different accused for offence u/S. 298-C committed at different places at different times, held, joint trial illegal not curable u/S. 537, Cr.P.C PLJ 1991 Cr.C. (Lah.) 465 Sh. Muhammad Aslam et

238.        Offence proved included is in offence charged: 

        Accused may be convicted of the minor offence,  PROVED,though not charged if:-

* Charged with an offence consisting of several particulars,

* Several particulars constitutes a complete minor offence.

* Such combination is proved,

* The remaining particulars are not proved.

 * Charged with an offence, may be convicted of an attempt though not charged. 

  *This section shall not apply to Ss.198 ,199 PPC unless complaint has been made as required .

                                       PLJ 1991 Cr.C. (Lah.) 131.

 Ahmed Yar.Accused charged under minor offence cannot be convicted for major offence. Accused was charged u/S. 148/149 but the Sessions Judge  acquitted the accused u/S. 148/149 PPC and sentenced him u/S. 324 PPC Petitioner acquitted. PLJ 1991 Cr.C. (Lah.) 131. Ahmed Yar.

Charge for major offence but conviction was recorded for minor offence not spelled out of the major offence. Conviction held illegal, as the ingredients of major offence were not a notice to the accused about minor offence. (SC) PLD 1960 SC 173 Sultan Ahmad,

Illustrations 

(a) A is charged, under Section 407 of the Pakistan Penal Code, with criminal breach of

trust in respect of property entrusted to him as a carrier. It appears, that he did commit

criminal breach of trust under Section 406 in respect of the property but that it was not

entrusted to him as a carrier. He may be convicted of criminal breach of trust under

Section 406.

 

   240.       Withdrawal of charges on conviction on one of charges :

 

        * When a charge containing more heads than one, is framed against the same person

       *  When a conviction has been had on one or more of them,

      *The complainant or the prosecution withdraw the remaining charge(s), may with the consent of the Court,

     * The Court of its own accord may stay the inquiry or trial of such charges.

    * Such withdrawal is equal to an acquittal on such charges,

    * Court may proceed with the inquiry into or trial of the charge so withdrawn Unless the conviction is set aside .

============================================++++++++==================