Procedure S. 476 Cr.Pc

                   

https://youtu.be/4kCjrWc8dnM?si=qth-iFcy8ha8jy8g

               

                      2025 LHC33

   CRIMINAL APPEAL No.40068/2020 

Asif Atta   vs.  The State, etc. 

Date of hearing  15.01.2025 

Ref. “S.M. REHMATULLAH versus THE STATE” (PLD 1986 Karachi 560) 

* 195. (1) No Court shall take cognizance: (a)  Prosecution for contempt of lawful authority of public servants: Of any offence punishable under Sections 172 to 188 of the Pakistan Penal Code, except on the complaint in writing of the public servant concerned, or of some other public servant to whom he is subordinate;  

(b)    Prosecution for certain offences against public justice: Of any offence punishable under arty of the following sections of the same Code, namely Sections 193, 194, 195, 196. 199. 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is alleged to have been 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)     Prosecution for certain offences relating to documents given in evidence: Of any offence described in Section 463 or punishable under Section 471, Section 475 or Section 476 of the same Code, when such offence is alleged to have been 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. 

•√ Procedure for trial of offences mentioned in section 195, sub-section (1), clause (b) or clause (c) is regulated under section 476 of Cr.P.C. relevant part is reproduced; 

476. Procedure in cases mentioned in Section 195: When any offence referred to in Section 195, sub-section (1), clause(b) or clause (c), has been committed in or in relation to a proceeding in any Civil, Revenue or Criminal Court, 

* The Court may take cognizance of the offence and try the same in accordance with the procedure prescribed for summary trials in Chapter XXII.   

•√This section directs summary trial under chapter XXII of Cr.P.C; Other court. 

----------------

480. Procedure in certain cases of contempt:

 (1) When any such offence as is described in Section 175, Section 178, Section 179, Section 180 or Section 228 of the Pakistan Penal Code is committed in the view or presence of any Civil Criminal or Revenue Court, the Court may cause the offender to be detained in custody and at any time before the rising of the Court on the same day may, if it thinks fit, take cognizance of the offence and sentence the offender to fine not exceeding two hundred rupees; and, in default of payment to simple imprisonment for a term which may extend to one month, unless such fine be sooner paid. 

•√ But when such offences are committed before himself or 

√ in contempt of his lawful authority, or 

•√ is brought under his notice, as such Judge or Magistrate (except Judge of High Court) in the course of a judicial proceeding,

°√  He shall not try it himself. This command of law is incorporated in section 487 of Cr.P.C. which is as under; 

487. Certain Judges and Magistrates not to try offences referred to in Section 195 when committed before themselves: (1) Except as provided in Sections 476, 480 and 485 no Judge of a Criminal Court or Magistrate, other than a Judge of a High Court, shall try any person for any offence referred to in Section 195, when such offence is committed before himself or in contempt of his authority, or is brought under his notice, as such Judge or Magistrate in the course of a judicial proceeding. 

*+ In the present case learned Additional Sessions Judge has sentenced the appellant under section 174 of PPC for his failure to produce the accused against whom notice was issued on petition for cancellation of his bail. Section 174 falls in category of offences mentioned in section 195, sub-section (1), clause (a), therefore, learned Additional Sessions Judge was not authorized to sentence the appellant by himself, rather complaint should have been forwarded to the Magistrate having jurisdiction in the matter,

Supplementary Statement

 

     https://youtu.be/ulgcYQ6aFjQ?si=eW7

               2024LHC2299

 Case No. Crl.Misc.No.27821-H/24

  Mst. Najma Bibi Vs        S.H.O., etc.  

                  13.05.2024 

       Remand paper shows that it was not forwarded by the concerned, Prosecutor but amazingly the learned Magistrate not only entertained the request of the Investigating Officer, without the same being forwarded by the Prosecutor but also send the alleged detenue to the judicial lock up in a mechanical manner without applying its judicial mind as to whether sufficient material was available  against the alleged detenue to curtail her liberty or not.  

* liberty and dignity of a person have always remained sacrosanct and have been placed atop the fundamental/ human rights pedestal. Islam has conferred upon human being the highest level of dignity amongst all of Allah’s creation and secured and protected for them complete liberty within the prescribed limits. 

 Kh. Salman Rafiq.PLD 2020 SC 456

Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

Article (9)(1) of the International Convenant on Civil and Political rights. 3 AIR 2011 SC 312 

Life bereft of liberty would be without honour and dignity and it would lose all significance and meaning and the life itself would not be worth living. This is why “liberty” is called the very quintessence of a civilized existence…3 

alleged detenue was not named in the crime report of the aforementioned criminal case. She was involved in the case subsequently on the so-called disclosure of the coaccused before the police. According to Article 38 of the Qanun-e-Shahadat Order, 1984, admission of an accused before police cannot be used as evidence against the co-accused.

Even otherwise, it is well settled by now that confession of an accused before the police is inadmissible in evidence as far as admission of his own involvement in the alleged offence concerned, 

in order to justify the arrest/detention of the alleged detenue is supplementary statement got recorded by him almost twenty days of the alleged occurrence but he did not disclose his source qua involvement of the alleged detenue in the alleged occurrence. 

Raja Muhammad Younis .Vs. The State (2013 SCMR 669). 6 Alam Zeb .V. The State and others (PLD 2014 SC 760) 

It is well settled by now that any statement or further statement of the first informant recorded during the investigation by police would neither be equated with First Information Report nor read as part of it.[1] 

  Falak Sher .vs. The State (1995 SCMR 1350) 

The Apex Court in a plethora of judgments observed that supplementary statement recorded subsequently to the FIR can be viewed as improvement.[1] 

1993 SCMR 550,1998 SCMR 685,2011 SCMR 379, 2011 SCMR 161 & 2003 SCMR 426 

police officials abducted the alleged detenue by trespassing into her house at mid-night without any search warrants, confined her for a number of days and then created false and frivolous evidence against her in order to justify their act requires serious attention. 

  •√ Directions are issued to all the concerned for strict compliance in the future:- 

(i)         Liberty of a person is a fundamental right enshrined in the Constitution and no one can be allowed to curtail the same on the basis of malafide and colourful exercise of authority.  

(ii)      Supplementary statement recorded by the complainant for involving a particular accused in an incident, without disclosing the source of information, is not per se admissible piece of evidence, as such while recording such statement, the Investigation Officer should insist upon the complainant to disclose his source of information.  (iii)  Investigating Officer should not cause arrest of the accused straightaway upon the supplementary statement of the complainant, rather he is duty bound to first collect incriminating piece of evidence in support of such statement and then proceed in accordance with law.  

(iv)     The request of the Investigating Officer for physical/judicial remand of such accused, must have been accompanied with the opinion of the concerned Prosecutor qua sufficiency of the material against him. 

(v)       Any request sans of the opinion of the concerned Prosecutor shall not be entertained by the Area Magistrate or the Court as the case may be.  

(vi)     The Area Magistrate or the Court, as the case may be, shall not grant physical/judicial remand in a mechanical manner, rather record its reasons for according such request.  

(vii)   If the supplementary statement of the complainant is bereft of source of information for involvement of an accused, the Area Magistrate or the Court as the case may be, may require the presence of the complainant before dealing with such request.  

13. Copy of this order shall be circulated amongst all the concerned for compliance through Registrar of this Court.  

Disposed off.        (Asjad Javaid Ghural) 

                                    Judge 

 Approved for Reporting  

             Judge 

 Azam*               

 

Stay of Civil Case.

PLJ 2023 SC 481

       [Appellate Jurisdiction]

Present: Syed Mansoor Ali Shah and Syed Hasan Azhar Rizvi, JJ.

   SALMAN ASHRAF--Petitioner

                     versus

DDITIONAL DISTRICT JUDGE, LAHORE, etc.--Respondents

C.P. No. 2000-L of 2020, decided on 26.5.2023.

(Against the order of the Lahore High Court, Lahore, dated 08.12.2020, passed by in Writ Petition No. 64232 of 2020)

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

        -S. 9 & O. VII, R. 11--National Accountability Ordinance 1999, S. 13--Civil & criminal proceedings--Dismissing application of petitioner for rejection of plaint in a suit--All three courts below have decided matter against petitioner--Meanwhile, National Accountability Bureau (“NAB”) also took cognizance of alleged commission of offence by respondent--Accountability Court convicted respondent--The question of limitation could not be decided without recording evidence, and that scope of jurisdiction of a civil court and that of a criminal court in regard to documents in question was different--Finding of a criminal court on a fact constituting offence tried by that court is irrelevant in a civil proceeding to decide same fact in course of adjudicating upon and enforcing civil rights and obligations--Section 13 of NAB Ordinance has no application to matter involved in suit filed by respondent--The question of any express or implied bar on jurisdiction of civil court to try a matter was neither raised nor decided therein--The courts in Pakistan, as held, cannot import an implied bar from another country’s jurisprudence--The petitioner will still have chance of success in his claim in civil proceeding if civil court finds that preponderance of probability tilts in his favour--Appeal dismissed.                                [Pp. 483, 484, 485, 486, 487 & 488] A, B, C, D, G, I, J, K, M

PLD 1985 SC 134; 1995 SCMR 500; 1980 PCrLJ 1172; 2004 MLD 491; PLD 1990 SC 28; 1991 SCMR 2126 ref.

     Administration of justice

..Civil proceeding and criminal proceeding--Both civil proceeding and criminal proceeding relating to one and same matter can be instituted and ordinarily proceeded with simultaneously.    

       [Pp. 484 & 485] E

2003 SCMR 1691; 2006 SCMR 512; 2006 SCMR 1192; 2008 SCMR 839; 2021 SCMR 1486 ref.

Administration of justice

-Civil proceeding and criminal proceeding--Where criminal liability is dependent upon or intimately connected with result of civil proceeding and it is difficult to draw a line between a bona fide claim and criminal act alleged, trial in criminal proceeding may be postponed till conclusion of civil proceeding.   [P. 485] F

PLD 1968 SC 281; PLD 1984 SC 95 ref. 2017 SCMR 390,1972 SCMR 85.

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

--S. 9--Jurisdiction--Section 9, CPC, provides that civil courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.[P. 486] H

1969 PCr.LJ 411; 2010 SCMR 1816; 2017 SCMR 390; 1972 SCMR 85; PLD 1968 SC 281; PLD 1984 SC 95 ref.

     Administration of justice---

--Standard of proof--Civil and criminal proceedings--A mere preponderance of probability is sufficient to decide disputed fact but in latter, guilt of accused must be proved beyond any reasonable doubt.     [P. 487] L1

          991 SCMR 2126 ref.

Mr. Hafeez Saeed Akhtar, ASC for Petitioner.

Ch. Zulfiqar Ali, ASC. (via video link from Lahore and Syed Rifaqat Hussain Shah, AOR for Respondent No. 3.

Dates of hearing: 25 and 26.5.2023.

Order

Syed Mansoor Ali Shah, J.--The petitioner seeks leave to appeal against an order of the Lahore High Court, dated 08.12.2020, whereby the High Court has dismissed his writ petition and upheld the order of the revisional Court, dated 20.11.2020. By its order, the revisional Court had dismissed the revision petition of the petitioner filed against the order of the trial Court, dated 27.10.2020, dismissing the application of the petitioner for rejection of the plaint in a suit filed by Respondent No. 3, Ch. Muhammad Ashiq, (“respondent”). All three Courts below have thus decided the matter against the petitioner.

2. Briefly, the factual background of the case is that on 2 June 2007, the petitioner filed a suit for recovery of the amount of

Rs. 174,406,250/- against the respondent. In his suit, the petitioner asserted that he and his late father paid the said amount to the respondent, vide agreements dated 06.08.2003, 26.05.2004 and 13.07.2004 and certain receipts, to purchase for them some land and plots in different phases of DHA, Lahore; but the respondent did not fulfil the commitment nor did he return the said amount. Meanwhile, the National Accountability Bureau (“NAB”) also took cognizance of the alleged commission of the offence by the respondent, of defrauding the members of the public and inducing them to deliver him a huge amount of money on the pretext of procuring plots for them in DHA, Lahore. The affectees of the alleged offence included the petitioner; therefore, in the trial of that offence the petitioner appeared as a witness and also tendered the said agreements and receipts allegedly executed by the respondent, in the prosecution evidence. While relying on the prosecution evidence, which included the testimony of the respondent as well as the said agreements and receipts, the Accountability Court convicted the respondent vide its judgment dated 27.11.2012. The respondent preferred an appeal against the judgment of the Accountability Court before the Lahore High Court, which is pending adjudication.

3. In addition to that appeal, the respondent also instituted a suit for declaration on 7 June 2013 against the petitioner, wherein he asserted that the agreements and receipts on the basis of which the petitioner had instituted the suit for recovery of the amount against him are forged, fabricated and fictitious. In the suit, he prayed that the said agreements and receipts may be declared to be so and thus ineffective against his rights. The trial Court consolidated the proceedings of the suit of the respondent with the suit of the petitioner and framed consolidated issues. The respondent produced his evidence on the consolidated issues, and the hearing of the case was fixed for evidence of the petitioner when he filed on 2 September 2020 an application under Rule 11 of Order 7 of the Code of Civil Procedure 1908 (“CPC”), for rejection of the plaint in the suit of the respondent.

4. The application of the petitioner for rejection of the plaint was mainly based upon two grounds: (i) the suit of the respondent is time-barred, and (ii) the suit is not maintainable in view of the judgment of the Accountability Court, wherein the agreements and receipts have been relied upon for convicting the respondent. The trial Court dismissed the application on 27 October 2020 by holding that in the circumstances of the case, the question of limitation could not be decided without recording evidence, and that the scope of the jurisdiction of a civil Court and that of a criminal Court in regard to the documents in question (agreements and receipts) was different. The revision petition filed by the petitioner was dismissed by the District Court on 20 November 2020. And by the impugned judgment passed on 8 December 2020 in the writ petition of the petitioner, the High Court upheld the orders of the Courts below. The High Court observed that in the present case, the question of limitation was a mixed one of law and facts, which was not to be decided summarily but rather after recording evidence of the parties, and that the civil and criminal proceedings regarding the veracity of the documents could be conducted simultaneously.

5. Before us, the learned counsel for the petitioner pressed only the second ground and contended that once a matter (validity of the agreements and receipts) is decided by a criminal Court, the same cannot be re-agitated in a suit before a civil Court. Such a suit, he contended, is barred by law. In support of his contention, he placed reliance on three judgments: Olas Khan v. Chairman NAB (PLD 2018 SC 40), Zahida Sattar v. Federation of Pakistan (PLD 2002 SC 408), and Hunter v. Chief Constable of West Midlands ([1981] 3 All ER 727).

6. On the other hand, the learned counsel for the respondent submitted that civil proceedings are distinct from criminal proceedings and can be conducted simultaneously, and that civil Courts have plenary jurisdiction to decide upon all matters of civil nature unless it is shown that their jurisdiction is either expressly or impliedly barred. He relied upon Jan Muhammad v. Nazir Ahmad (2004 SCMR 612), Province of Punjab v. Yaqoob Khan (2007 SCMR 554), Nazir Khan v. Ahmad (2008 SCMR 539), Hashmat Ullah v. State (2019 SCMR 1730) and SNGPL v. Noor CNG Filling Station (2022 SCMR 1501).

7. We have considered the arguments of the learned counsel for the parties, read the cases cited by them and examined the record of the case.

8. It hardly needs reiteration that the object of a civil proceeding is to enforce civil rights and obligations while that of a criminal proceeding is to punish the offender for the commission of an offence. It is, therefore, a well-established legal position in our jurisdiction that both the civil proceeding and criminal proceeding relating to one and the same matter can be instituted and ordinarily proceeded with simultaneously.[1] Although there is no bar to the simultaneous institution of both proceedings, the trial in the criminal proceeding may be stopped in certain circumstances.[2] And the guiding principle in this regard is also well-defined. It is that where the criminal liability is dependent upon or intimately connected with the result of the civil proceeding and it is difficult to draw a line between a bona fide claim and the criminal act alleged, the trial in the criminal proceeding may be postponed till the conclusion of the civil proceeding.[3] Thus, where either of these two conditions is not fulfilled, i.e., where the subject matter of civil proceeding and that of criminal proceeding are distinct, not intimately connected,[4] or where the civil proceeding is instituted mala fide to delay the criminal prosecution, not bona fide,[5] the criminal proceeding may not be stayed.

9. It is notable that the whole jurisprudence on the subject, as briefly stated above, has developed while dealing with the question of staying criminal proceeding till the conclusion of the connected civil proceeding. Not a single case is brought to our notice wherein the question of staying civil proceeding till the culmination of the criminal proceeding had been raised. The reason is not far to see.

* The decision of a civil Court as to any right, title or status, which only that Court can finally decide, may have a substantial bearing upon a constituent ingredient of the offence being tried by the criminal Court.[6] On the other hand, any finding of a criminal Court on a fact constituting the offence tried by that Court is irrelevant in a civil proceeding to decide the same fact in the course of adjudicating upon and enforcing civil rights and obligations.[7] The petitioner has even gone a step farther than that. As he has not prayed that the civil proceeding may be stayed till a final decision in the criminal proceeding but rather for quashing the civil proceeding by rejecting the plaint therein, on the basis of some findings of facts recorded in the criminal proceeding by the criminal trial Court.

10. Section 9, CPC, provides that the civil Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. And as per clause (d) of Rule 11 of Order 7, CPC, a plaint can be rejected where the suit appears to be barred by any law. Thus, to succeed in his plea for rejection of the plaint in the suit of the respondent, the petitioner is to show under which law the suit of the respondent is either expressly or implied barred. The petitioner has pointed out no such law.

11. The reliance of the petitioner on the case of Zahida Sattar is misconceived. In that case, this Court upheld the order of the civil Court rejecting the plaint by observing that Section 13 of the National Accountability Ordinance 1999 (“NAB Ordinance”) conferred exclusive jurisdiction on the Accountability Court to adjudicate upon the matter that was agitated in the civil suit and the jurisdiction of the civil Court to try that matter was impliedly barred. Section 13 of the NAB Ordinance has no application to the matter involved in the suit filed by the respondent.

12. Similarly, the reliance of the petitioner on the case of Olas Khan is misplaced. In that case, the Court was dealing with the question on the jurisdiction of the High Court to grant bail to an accused arrested for an offence under the NAB Ordinance. The question of any express or implied bar on the jurisdiction of the civil Court to try a matter was neither raised nor decided therein. Nothing turns out of a passing remark made in that case, and referred to by the learned counsel for the petitioner, that the NAB Ordinance is a special statute hybrid in nature and is a fusion of criminal liability and civil obligations. The learned counsel for the petitioner did not pinpoint any provision of the NAB Ordinance, which confers exclusive jurisdiction on the Accountability Court to enforce civil obligations. He only referred to Section 33-E of the NAB Ordinance, which provides that any fine or other sum due under the Ordinance, or as determined to be due by a Court, shall be recoverable as arrears of land revenue. Similar provisions are contained in Section 544-A(2) of the Code of Criminal Procedure 1898 (“Cr.P.C.”) for recovery of the compensation awarded under subsection (1) of that Section. It has never been urged that a criminal Court enforces civil obligations by taking proceedings to recover the amount of compensation as an arear of land revenue under Section 544-A. Rather, Section 546, Cr.P.C. envisages the institution of a civil suit relating to the same matter, despite the recovery of the compensation under Section 544-A.

13. The third case relied upon by the learned counsel for the petitioner is that of Hunter decided by the U.K. House of Lords. In Hunter, the House of Lords essentially held that a civil action by a person to prove that the confession on the basis of which he was convicted in the criminal trial had been procured by force, in the disguise of a claim for damages, is an abuse of the process of the Court and such a civil action is liable to be struck out. The learned counsel for the petitioner, by taking an analogy from that case, argued that as a piece of evidence (confessional statement) found valid and relied upon in the criminal proceeding was not allowed to be challenged in a civil action in Hunter, the evidence of the agreements and receipts found valid and relied upon by the Accountability Court in the present case cannot be challenged in a civil suit by the respondent. We find the analogy to be in correct. While certain agreements and receipts, such as those involved in the present case, may give rise to civil rights and obligations, a confessional statement made in a criminal case does not. Therefore, the suit that challenges the validity of such agreements and receipts is a suit of a civil nature within the meaning and scope of Section 9, CPC, but the suit challenging the validity of such a confessional statement is not. Further, the bar on the jurisdiction of the civil Court to try a suit of civil nature or on the maintainability of a suit envisaged by Section 9 or clause (d) of Rule 11 of Order 7, CPC is that which is created either expressly or impliedly by some statutory law enacted by the legislature. The Courts in Pakistan, as held by this Court in Akram v. Farman Bi,[8] cannot import an implied bar from another country’s jurisprudence.

14. Needless to mention that the standard of proof required in civil and criminal proceedings is different. In the former, a mere preponderance of probability is sufficient to decide the disputed fact but in the latter, the guilt of the accused must be proved beyond any reasonable doubt.[9] There are, therefore, chances of giving divergent judgments by the civil and criminal Courts on the facts that give rise to both civil and criminal liabilities.[10] The contention made in the present case by the petitioner appears surprising to us in that it has the potential of causing detriment to his claim. The judgment of the Accountability Court on which the petitioner is now relying is under judicial scrutiny of the first appellate Court, i.e., the High Court, and any judgment passed by the High Court may further be challenged in this Court. What if the High Court or this Court comes to a conclusion contrary to that of the trial Court and acquits the respondent of the charge giving him the benefit of any reasonable doubt? Would the claim of the petitioner against the respondent for recovery of the amount come to an end? Not, in our view. The petitioner will still have the chance of success in his claim in the civil proceeding if the civil Court finds that the preponderance of probability tilts in his favour.

15. For the above reasons, we find no legal error in the concurrent orders of the three Courts below. This petition is found meritless. It is therefore dismissed and the leave to appeal is declined.

(K.Q.B.)          Petition dismissed

[1].       Aslam Zaheer v. Shah Muhammad 2003 SCMR 1691; Rafique Bibi v. Muhammad Sharif 2006 SCMR 512; Khalid Saleem v. Muhammad Ashraf 2006 SCMR 1192; Seema Fareed v. State 2008 SCMR 839; Sikandar Ali v. SHO 2021 SCMR 1486.

[2].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Manak Ji v. Fakhar Iqbal 1969 PCrLJ 411 SC (4-MB); Muhammad Tufail v. State 1979 SCMR 437; Abdul Haleem v. State 1982 SCMR 988; Habib Ahmed v. M.K.G. Scott Christian PLD 1992 SC 353; Muhammad Anwar v. Badshah Begum 1999 SCMR 1475; Sheraz Ahmad v. Fayyaz-ud- Din 2005 SCMR 1599; Abdul Ahad v. Amjad Ali PLD 2006 SC 771; Zafar v. Umar Hayat 2010 SCMR 1816.

[3].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 (5- MB).

[4].       Muhammad Aslam v. State 2017 SCMR 390.

[5].       Mohammad Ahmad v. State 1972 SCMR 85.

[6].       Muhammad Akbar v. State PLD 1968 SC 281 (4-MB); Muhammad Azam v. Muhammad Iqbal PLD 1984 SC 95 (5- MB).

[7].       D.I.G., Lahore v. Anis-ur-Rehman Khan P L D 1985 SC 134 (4-MB); Ghulam Rasool v. Muhammad Waris 1995 SCMR 500; Richard Benjamin v. Ismail 1980 PCrLJ 1172 Kar (DB); Aijaz v. Karachi Transport Corporation 2004 MLD 491.

[8].       PLD 1990 SC 28.

[9].       Zakaullah Khan v. Muhammad Aslam 1991 SCMR 2126.

[10].      Richard Benjamin v. Ismail 1980 PCrLJ 1172 Kar (DB); Aijaz v. Karachi Transport Corporation 2004 MLD 491.

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.