Registered document vs oral evidence

 

2004  SCMR  530    

 

Side Appellant : MUSHTAQ AHMAD 

Side Opponent : MUHAMMAD SAEED 

----S.12---Registration Act (XVI of 1908), S.48---Specific. performance of agreement to sell---Principle of---

Preference of registered document over oral agreement--- Applicability ---Possession of suit-land was handed over to plaintiff in execution of oral agreement of sale--Subsequently the owner of the suit-land executed registered sale-deed in favour of defendants on the basis of another agreement of sale in their favour---Suit filed by the plaintiff was dismissed by the Trial Court but Appellate Court allowed the appeal and decreed the suit in favour of the plaintiff---Judgment and decree passed by the Appellate Court were maintained by High Court in exercise of revisional jurisdiction---Plea raised by the defendants was that the agreement of sale in favour of the plaintiff was unregistered document which could , not be termed as agreement of sale, while the agreement in their favour was a registered document, therefore, the document in favour of the plaintiff could not be enforced---Validity---Appellate Court and High Court, after taking into consideration the terms of the document in favour of the plaintiff and the evidence produced by the parties, recorded a finding of fact that it was an agreement of sale, therefore, the same could be enforced as such to seek specific performance thereof ---Vendee under unregistered document or agreement was delivered possession, the principle that registered document would take preference over unregistered document would not be applicable in view of S.48 of Registration Act, 1908--Defendants, in their written statement had admitted that possession of the land had been delivered to the plaintiff under the agreement of sale, therefore, no benefit could be claimed under S.48 of Registration Act, 1908, on the ground that agreement in favour of the defendants was a registered document---Execution of sale-deed in favour of defendants by the owner, after execution of the agreement of sale in favour of the plaintiff, could not in any manner detract from the rights of the plaintiff under law as holder of prior agreement of sale vis-a-vis the saledeed specific performance thereof---Findings of fact recorded by the Appellate Court and affirmed by - the High Court had not been shown to be suffering from any legal infirmity such as misreading or non-reading of any material piece of evidence---Appeal was dismissed.

Non-Registration of FIR

 Watch Also

   

  Non-Registration of FIR 

Remedy.....

 1.Place complaint to the District Police Officer (DPO) or Capital City Police Officer. 

2-If grievance sustans, complain to the Deputy Inspector General (DIG) of police. 

3- Complaint in writing and by post may be sent to the DPO, CCPO, DIG. 

4- Complaint may be made to the District Public Safety and Police Complaints. 

5- A private complaint u/s.200 Cr.Pc. before the area Magistrate having jurisdiction.

6- Petition  u/s. 22 A & 22B Cr. Pc may be filed before Ex - officio justice of peace/ D&SJ, who may direction as per lex lata. 

7- In case non compliance of direction of JOP, Petition may be filed before JOP for compliance of previous order and proceedings u/ a. 155(c)  Police order 2002.

 It is better to file Complaint u/ s. 200 Cr. Pc rather to be registration of FIR by the police. 

Disputes as to Jurisdiction of Police Station

                    * Pursuant to receiving the first information germane to the commission of an offence, it is its responsibility to immediately act and investigate the case. 

If there is a dispute between two the police stations as to their territorial jurisdiction. The police shall  follow the following procedure:

A) Information  shall be entered in the Daily Diary prescribed for this purpose (25-5 of the Police Rules,1934).

B)  Zero FIR Concetp is also there, thst will be sent to the concerned  Police Station. 

C) The SHO recieving the information  of offence will stay on the spot and keep on investigating into the case. The case record in such a case shall remain with the SHO who reaches the spot earlier until the question of jurisdiction has been decided (25-5 of the Police Rules,1934).

D) One of the two police officers is relieved after the determination of area of jurisdiction by senior police officers.

E)The relieving officer shall record a report of all  done in a case diary and sign it, giving the date and hour of his relief.

F) Such case diary shall be handed over to the other police officer, who shall certify thereon that he acknowledges the case to have occurred within his station limits or to be one which he is empowered to investigate, as the case may be (25-6 of the Police Rules, 1934).

G). When a case is transferred from one police station to another, after determination of area ofjurisdiction, the offence registered in the original police station, zero FIR shall be cancelled by the Superintendent of Police and an FIR shall be submitted in the police station in the jurisdiction of which the case occurred (25-7 of the Police Rules. 

Declaratory Suit

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       2020 SCMR 202

       Section 42 Specific Relief Act, (I of 1877) ==== Suit for declaration-- Declaratory decree-- Through a suit filed under S. 42 of the Specific Relief Act, 1877 a declaration could be granted with regard to legal character or the right as to any property; however, no new right could be created an favour of plaintiff by grant of a declaratory decree.

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 2020 CLC 499 Push a ear 

     Section 42 Specific Relief Act (I of 1877) ==== Suit for declaration-- Agreement to sell-- Mere agreement to sell could neither create any title nor any right or interest in suit property-- Declaratory suit filed under S. 42 of Specific Relief Act, 1877 is not maintainable under the law on the strength of oral agreement to sell.

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GIFT. CASE LAWS

 

Case laws on Gift / Tamleek 

            2016 MLD 1535 Lahore

Ingredients---Mutation---Proof of---Procedure---Defendants being beneficiary of disputed gift mutation were bound to prove the transaction of tamleek which might have been settled at some prior point of time of attestation of the same---Donee did not plead any date, time, place and the names of witnesses to explain as to when and where and in whose presence alleged offer to gift out suit property had been made---Donee remained fail to prove the transaction of disputed gift in absence of such details in the written statement---Mutation per se was not a deed of title but it would indicate some previous oral transaction between the parties---Whenever any mutation was challenged then burden would lie on the beneficiary to prove the same as well as original transaction which he was required to fall back upon---Only one witness of mutation of tamleek was produced to prove its valid attestation---Said witness did not depose that donor had ever made any offer to gift out the suit property to the donee and he accepted the said offer in his presence---Transaction could not be declared to have been validly proved in absence of two basic ingredients of gift---Testimony of said witness was not helpful to the beneficiary---Disputed mutation was attested by practicing fraud misrepresentation---Attestation of disputed mutation by two real brothers had created doubt regarding its authenticity---Beneficiary of disputed mutation had failed to produce revenue officials who had entered and attested the same---Revenue officials were the best persons who could prove the valid attestation of tamleek mutation---Best evidence had been withheld by the beneficiaries without showing any justification and inference would be against them---Revenue Officer was bound to conduct the proceedings in a common assembly in the concerned revenue estate to attest the mutation but same was not conducted therein---Beneficiaries of gift had failed to prove ingredients of the same.

2014 MLD 1672 Peshawar

Parties were legal heirs of deceased owner of suit property but plaintiff assailed tamleek mutation attested in favour of defendant---Validity---Defence witness stated that he was marginal witness of tamleek mutation and had correctly thumb impressed the same---Defence witness also deposed that other marginal witness of mutation had also correctly thumb impressed the same and at the time of attestation of mutation in question, the owners were also present and had correctly signed the same---Plaintiff failed to establish her claim by way of producing cogent, confidence inspiring and conclusive evidence.

          2014 CLC 1659 Peshawar

Gift---Ingredients/essentials---Burden of proof Defendants being beneficiary of the tamleek mutation had to prove that property was legally transferred to them---Three ingredients namely offer, acceptance and delivery of possession were the litmus test to ascertain the validity of a tamleek or gift transaction---No evidence of delivery of possession was adduced---Mutation per se was not sufficient to prove the factum of gift unless actual transaction thereof was proved---Mutation was attested in Mauza other than the one where suit land was situated---Revenue Officer sanctioning the mutation had not been produced as witness to prove the genuineness of the transaction.

      2014 YLR 2053 Lahore

Gift/tamleek --Proof--- Ingredients--- Sanction of mutation---Procedure---Plaintiff assailed mutations of gift/tamleek s in favour of defendants on the basis of forgery and fraud---Trial Court decreed the suit in favour of the plaintiff and Lower Appellate Court dismissed the appeal of the defendants---Concurrent findings of facts---Validity---Every mutation entry was to be recorded in presence of the person whose right had been acquired and that if said person had been identified by two respectable persons; Signature/thumb impressions of identifying witnesses shall also be obtained by the revenue officer on register of mutation---If at the time of sanction of mutations, the parties had not appeared, that would shatter the entire case of defendants---To prove valid gift/ tamleek three ingredients viz. offer, acceptance and handing over of possession were sine qua non---Defendants in their written statements had not provided necessary details as to where and how the transactions of gift/tamleek had taken place; there was no detail about the offer of sale or payment of consideration nor was there any detail as to how donor had made an offer of gift to the donees/defendants and as to when donees had accepted that offer and how the physical possession was given to the donees---Defendants/beneficiaries failed to establish the transaction of sale and tamleek respectively---Beneficiaries had to prove the factum of tamleek in their favour especially in the circumstances where some of the legal heirs had been deprived from their lawful right of inheritance.

          PLD 2013 Lahore 498 

                      (J. Shujat Ali Khan)

Definition of “Tamleek” :  

Hon’able Court hold that the term tamleek has not been defined anywhere but according to the verdicts of Superior Courts the same is considered as one of the kind of gift and it is equated with the term ‘family settlement’.

According to BLD : ‘Family settlement’ means an agreement between members of a family settling the distribution of family property among them …… an arrangement / agreement between heirs of a deceased person by which they agree on distribution on management of estate without administration by court having jurisdiction of such administration proceedings.

Definition of “Gift/Hiba” : 

By D.F. Mulla :- (i)- Hiba/Gift means Transfer of property, made immediately, and without consideration, by one person to another , accepted by or on behalf of that other person.

(ii)- Hiba means transfer of right of property in substance by one person to another without consideration which is a condition to be fulfilled in order to make a gift valid.

According to BLD :-   A voluntary transfer of property to another made gratuitously and without consideration.

Meaning of Gift hold by Hon’able Court : A voluntary transfer of something to another, without any consideration, irrespective of the fact as to whether the donor or donee has any relation with each other or not. 

Distinction of Tamleek and Gift :

In gift the donor can transfer property to anyone else, but in tamleek the condition precedent is the the same should be amongst the family members/legal heirs only.

PLD 2013 Lahore 333

6"tamleek "---Meanings---"tamleek " would mean assignment of ownership---"tamleek " being a kind of gift in favour of expected legal heir.

2013 CLC 499 Lahore    

(J. Shujat Ali Khan)

To prove valid gift/tamleek three ingredients viz offer, acceptance and handing over of possession were sine qua non but according to revenue record neither name of defendants had been incorporated in the record as owner nor they were in possession of suit-land---

Process of attestation of mutation was completed at residence of Tehsildar (Revenue Officer) concerned which was violation of S.42 of West Pakistan Land Revenue Act, 1967---

Entries in Revenue Record in the shape of mutations were not conclusive proof of ownership until and unless transaction on the basis whereof the same were attested was fully established from evidence.

Limitation---Effect of Plea of fraud--- When mutation challenged in suit, otherwise proved to be result of fraud and forgery, question of limitation cannot be pressed into service to put use as a shield. Relied on 1987 SCMR 1543

2012 CLC 1651 Lahore

Gift/tamleek through mutation---Proof---Beneficiary of tamleek transaction would be bound to prove first event of tamleek prior to attestation of its mutation---Mere attestation of such mutation would not be sufficient.

     2010 CLC 837 Lahore

Gift, cancellation of---Courts below considering the factum that mutation of tamleek was sanctioned in favour of the defendant when he was a minor, dismissed the suit filed by the plaintiff---Courts below also gave due weightage to the statement of Halqa Patwari and concluded that he was an independent witness---After scrutinizing the entire evidence on record, it was concluded that defendant had successfully proved the factum of appearance of the plaintiff before the revenue hierarchy for attestation of mutation of tamleek ---Courts below had further observed that there was valid offer and acceptance; and as the tamleek was made in favour of minor son, there was no need for transfer of possession.

EVM

ELECTRIC  VOTING  MACHINE (EVM) 

ISLAMABAD, April 4 (APP): The million-dollar question of whether Pakistan opts for electronic voting, or continues with traditional methods, hangs in balance for the time being, while work on an Electronic Voting Machine (EVM) continues at a rapid pace.

   Over the years the governments in the past have been reluctant to go for transparent voting systems, owing to obvious reasons, however, the government of Pakistan Tehreek-e-Insaaf, proved to be different, as it champions a cause, which traditional political systems despise.

 Prime Minister Imran Khan in November last year announced his government’s intention to introduce electronic voting to ensure free and fair general elections. In his address to the nation, he said all parties including the PTI, Pakistan Muslim League – Nawaz (PML-N) and Pakistan Peoples Party (PPP) had levelled allegations of the 2013 elections being rigged and said the allegation was repeated again in 2018.

 He vowed that his party would get approval from the parliament for electronic voting. He said the EVM, would not only enable millions of Pakistanis abroad to vote in elections but modern technology will make the election process transparent.

  “The EVM will counter the voter fraud claims made after losing the polls”, Imran Khan said.

Work on the EVM was initiated over a decade ago in the country but the equipment could not be used due to the reluctance of previous regimes. The National Institute of Electronics (NIE) upgraded the old equipment to make it compatible with modern communication systems. The NIE moved swiftly as the Minister for Science and Technology, Chaudhry Fawad Hussain was keen to see it up and running.

     Trials for the equipment are being done under practical conditions to ensure no repeat of the failure of the Results Transmission System (RTS), which was part of the Election Results Management system for the 2018 general elections.

The indigenous technology has been developed by the experts of NIE as per international standards by ensuring accuracy, reliability and security.

  Director-General NIE, Abdul Majeed Soomro, said the first version of EVM was developed in the year 2015 after the Election Commission of Pakistan (ECP) decided to use this technology for conducting elections and floated a tender for its production.

      The NIE participated in the tender along with international companies but the decision could not be made at that time. Since then, NIE had been working on this technology on its own by incorporating the latest features in it as per modern requirements.

      The Minister for Science and Technology, Chaudhry Fawad Hussain recently formed a committee to hold further consultations to improve this technology so as to use it for the next elections.

       Electronic Voting Machine made by the National Institute of ElectronicsElectronic Voting Machine made by the National Institute of ElectronicsThe EVM, which on a first glance looks like a very crude contraption, comprises of three main components (machines) including a Ballot box that can print the ballot paper and keep its record secretly, a Vote Casting Unit that has electronic symbols and a Control Unit which will be used by ECP to operate the equipment and get the results.

   Since the technology had been developed keeping in view the importance of data security and accuracy of election results, the results gathered through EVM can be double-checked and verified through ballot paper printed within the machine to eliminate chances of rigging.

  The NIE plans to improve on the design, with the full backing of Chaudhry Fawad Hussain, who since becoming the Minister has been actively pursuing various products of the institute and helping out in commercialization, while maintaining coordination with other departments.

   Ballot Box Machine that prints out a receipt and also maintains record

Ballot Box Machine that prints out a receipt and also maintains record

Vote Casting Unit has symbols of all contesting parties - Voters can press a button of their choice to cast the vote

Vote Casting Unit has symbols of all contesting parties – Voters can press a button of their choice to cast the vote

Control Unit of EVM

Control Unit of EVM

Former Secretary of ECP, Kanwar Muhammad Dilshad said the project of EVM was under-consideration in ECP for the last 15 years but could not be implemented due to the unwillingness of the previous governments.

Since he was serving in the ECP, a lot of work on EVM was done but could not be carried forward due to the lack of seriousness of the then government.  “EVM is the best solution to curb the electoral fraud and irregularities,” he believes.

   He said biometric logging of voters was very essential to verify their thumb impressions, and they can then move to the polling booth to cast vote by pressing a button on the electronic symbol,  which he said would eliminate the chance of rigging and tempering of ballot paper and Form-45.

Kanwar Dilshad was of the view that ECP will agree on using this machine only after the legislation and constitutional amendment which can be initiated by any political party.

      Meanwhile, Pakistan Tehreek-e-Insaf leader, Kanwal Shauzab said India is the largest country in terms of population as compared to Pakistan and if India can adopt EVM technology for elections why not Pakistan?

This technology is being used across the world including Europe and the United States where the elections are mostly undisputed. This is why their democracy has been flourishing.

   She said Pakistan should adopt this technology to ensure the accuracy of election results through reduced human interference and to avoid any dispute.

      Voting machines have been used since 1910 in the United States of America, where mechanical lever-operated machines, were used to select the candidate of choice. However, these have given way to newer touch screen machines, used in some of the States in the 2020 US election.

 While the NIE is testing its machine, the Election Commission of Pakistan also experimented with another system for e-voting. Prime Minister Imran Khan was given a demonstration of an upgraded model of the electronic voting machine prepared by the Research and Development department of the Comsats University and the National Institute of Electronics on wednesday.

  Prime Minister Imran Khan said introduction of electronic voting machine was critical for ensuring a transparent, safe and impartial voting process in the country and was imperative for the national and democratic interests of the country.

Whatever final shape these machines take in the days ahead, the future of electronic voting seems to be imminent and would ensure a free and fair election. The use of such machines in the future will go a long way in not only strengthening democracy but also put an end to the bickering, and allegations of rigging that not only mars the entire process but also undermines national development

Bail and Pandemic

2021 P Cr. L J 513

Criminal Procedure Code (V of 1898)---

---S. 497---Bail, grant of--

-Pandemic situation---Safety concerns of prisoners---Accused persons were confined in jail and there was extraordinary situation arisen due to COVID-19---Effect---Policy was framed by Federal Government and there were intolerable living conditions in over-crowed Central Prison, (Rawalpindi)---There was gravity of risk posed by Novel COVID-19, to safety concerns of prisons and their right to life---High Court directed Chief Commissioner and Inspector General of Police of Capital Territory to constitute a joint committee to scrutinize each case and release in each would be subject to satisfaction of that Committee---High Court admitted all those accused persons to bail who were alleged to have been involved in offences falling under non-prohibitory clause of S. 497, Cr.P.C.---Petition allowed accordingly.

Roznamcha Police

      

              PL D 2021 Lahore 105

(a) Police Rules, 1934---

----R. 22.4 (as amended)---Roznamcha waqiati---Maintenance of hard copy---Scope---Wisdom underlying the maintaining of manual roznamcha is to rule out the possibility of any fabrication which can easily be incorporated in the soft copy, hence, in all eventualities soft copy can never be a substitute of manual register maintained in terms of previous practice in vogue---Careful perusal of the amendment made in R. 22.4 divulges that maintaining of manual roznamcha has not been prohibited rather it delineates that in addition to hard copy, soft copy (electronic copy) of the registers shall be prepared---High Court issued direction to Inspector General of police to immediately issue directions to the police hierarchy throughout the Province to keep maintaining manual roznamcha waqiati as per previous practice---Electronic copy of the same as introduced through amendment would continue simultaneously.

(b) Criminal Procedure Code (V of 1898)---

----S. 497---Control of Narcotic Substances Act (XXV of 1997), Ss. 9(c) & 51---Possession of narcotics---Bail, grant of---Scope---Accused was alleged to have been found in possession of narcotics---Contention of accused was that two different FIRs were registered at the same police station within a span of ten minutes---First FIR was against her husband with regard to recovery of narcotic substance in front of his house while the other FIR was registered against the accused narrating the story that the charas was recovered from her and venue of recovery was mentioned as backside of the same house---Possibility of maneuvering false case implicating the accused in the case at the hands of complainant/local police could not be ruled out---Accused was a woman folk who was stated to be previous non-convict and behind the bars since the date of her arrest---Investigation being complete, person of the accused was no more required for further investigation---Sufficient grounds existed to

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FIR

 Importance of FIR. 

1.It sets the process of criminal justice in motion.

2.The police starts investigation thereafter in Cognizable cases u/s. 155 Cr.Pc

3.Investigation in non- cognizable case ,after permission of the area magistrate u/s.156Cr.Pc.

Relevant Fact.21, 22, 23, 25, 49, 50 of Qanoon-e-Shahadat Order 1984.

* Who can lodge an FIR?

1.Anyone having knowledge or information germane to the commission of a cognizable offence. 

2. The victim of the crime may be informer and lodge FIR.

3. A police officer  having knowledge or information of a cognizable offence can file an FIR. 

3 . Any person seen the offence being committed.

Investigation is dispensed, when:

1. The case is not serious in nature;

2. The police feel that there is not enough ground to investigate;

3. The police resources are already busy in investigating more serious offences.

However,

          * The police must record the reasons for not conducting an investigation .   

                     * It must be reported to the Magistrate u/s.157 CR.Pc,1898).

Procedure for lodging an FIR. 

1.S.154 CR. Pc The procedure of filing  FIR. 

2.Information of commission of cognizable offence may be oral or written. 

3.The police must write it down.

4. The police is bound to read over to the informant.

5. The informant will sign it verifying the information given by you. 

6. People who cannot read or write must put their left thumb impression thereon. 

7.Always ask for a copy of the FIR, if the police do not give it to you.

8. It is your right to get a copy of FIR free of cost.

     NEVER:-

1. File a false complaint or give wrong information to the police. 

2.You can be prosecuted   for giving false information .(Section 182 of the PPC,1860).

3. Exaggerate or distort facts.

4.Make vague  statements.

5. Refuse to sign your statement of FIR ,you can be prosecuted under section 180.PPC 1860.

6.  Lodge a false charge of offence with intent to injure a person you can be prosecuted under section 211 of Pakistan Penal Code, 1860.

Watch also:-

Zero FIR

https://youtu.be/EK_Z-Pr3ci-

Investigation.. 

https://youtu.be/kBpeQp4Uw2w

Cheque Dishonored

    Cheque Dishonored 

                   Section 489-F .PPC. 

           Essential ingredients:-

 (i) the  cheque was  duly  issued,  

(ii) it  was  issued  with  dishonest                     intention.  

(iii)  it  was  issued  towards  repayment  of :-

           √ a  loan  or  

          √ fulfilment of  an  obligation,  and  

(iv)  it  was  dishonoured  on  presentation.    

          •Absence  of  even  one  of  these  elements  would  take  the  case  out  of the  ambit  of Section  489-F PPC.

Ref:-2020 YLR 2064

Part Performance of Contract

 

       

          Part Performance of Contract.

                        Law:- S. 13 SRA, 1877.

   ** Notwithstanding section 56 of the Contract Act,

 1.The subject of contract has partially ceased to exist .

 2- Whole contract is impossible of performance. 

  3.The whole subject must be existing at its date, 

4. The incapable of performance portion Ceased to exist at the time of the performance. 

Illustrations 

(a) A contracts to sell a house to B for a lakh of taka. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money. 

(b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B's life. The day after the contract has been made, B is thrown 

from his horse and killed. B's representative may be compelled to pay the purchase-money.

 (a) A contracts to sell a house to B for a lakh of taka. The day after the contract is made the house is destroyed by a cyclone. B may be compelled to perform his part of the contract by paying the purchase-money. 

(b) In consideration of a sum of money payable by B, A contracts to grant an annuity to B for B's life. The day after the contract has been made, B is thrown from his horse and killed. B's representative may be compelled to pay the purchase-money.