Clean Hands

 

THE DOCTRINE OF CLEAN HANDS .

           “Fraus omnia corrumpit”, 

¶ “The fraud corrupts everything”, 

¶ Meaning that the fraudster could not benefit the situation forbidden by the law. 

¶ A founding principle of lstin law, 

¶ The cardinal principle of the doctrine of clean hands, 

¶ Known as the “dirty hand doctrine”. 

¶“No one can take advantage of his own wrong”, which has kind of the same consequences. 

¶The scheme is to prevent a litigant from diverting the law in his favour  to obtain a specific result. 

¶ It punishes the illegal conduct of the plaintiff to prove to be clean hands. 

¶ Bona fides, in Latin, describes the sincerity of a party throughout trial

¶ It may culminates in a contra legem decision if it is in line with good faith. 

¶ EQUITY has dominating role in Public International Law. And thus, good faith and the doctrine of clean hands find their preferred field in this branch of law.

When hands “dirty

√ To withhold certain information that would be useful for the other party. 

√ Good faith is an obligation that is implied in any contract or convention. 

√ If someone subverts a rule of the convention, it must justify the fact of not of dirty hands.

√No exclusion of some remedies, 

√It does not  exclude all remedies for the dishonest claimant. 

√It only affects equitable remedies. 

√No effect on remedies enforced by Law. 

√ It has no effect on equity. 

√ The claim that is rejected on the foundation of the doctrine of clean hands…

√ Must have a close connection to the unfair behaviour.

Refusal of Remedies. 

¶ Equitable remedies that can be refused to the claimant :-

          * injunctions, 

           * laches (abuse in the delay to demand a remedy), 

          * equitable damages, and 

          *constructive trust.

* Courts don’t take care of any depravity.

* Bad faith can never be presumed, it must be proven by the party alleges. 

* Plaintiff must prove that the defendant knew this acting was unfair.

* Bad faith implies that the accused party was conscious of the wrongdoing.

Diagnosis of BAD FAITH. 

*A gigantic uncertainty to prove doctrine of dirty hands.

* It may be impossible to prove that the other party knew the unfair use of law and caused prejudice to the other party. 

* The misconduct alone can’t establish the dirty hands. 

* Its integration in the jus cogens is still uncertain. 

* The maxim “Nullus Commodum Capere Potest De Injuria Sua Propria“No one can take advantage of his own wrong” is cornerstone of equity.

Pari delicto

 

In Pari Delicto Potior Est Conditio Possidentis 

Legal Parlance.  A Latin phrase. 

..Meaning / English. 

"in equal fault ,better is the condition of the possessor." 

•√ When the parties are equally at wrong, the status of the possessor is  better than opponent wrongdoer. 

•√ A person at wrongful act cannot sue another person for doing the wrongful act. 

The Court will do:-

°¶ When two parties  are equally at wrong, courts will not interfere with the status quo. 

** The doctrine germinates from, DO EQUITY,HAVE EQUITY, come with clean hands, propounded by the Maxim infra:-

        “Fraus omnia corrumpit”, 

a Latin locution, is a founding principle of law, and is the climax of the doctrine of clean hands, also known as the “dirty hand doctrine”

In Rem Jurisdiction

 

In Rem Jurisdiction

Legal Definition

√In rem is a Latin term. 

√meaning... "against or about a thing".

 √An in rem proceeding refers to a lawsuit or other legal action directed toward property. 

√Not toward a particular person. 

•In Rem Jurisdction ,

√ Jurisdiction of the court over the property    subject matter of the lawsuit or

 other legal action brought before it. 

√ The action must be brought in the court which has jurisdiction.

√Any judgment must be enforced upon the property and does not attach to a person.

 √The judgment is binding on all persons who claim title to the property. 

√Examples of in rem actions include partitions, actions to quiet title, or foreclosure of a lien upon real estate

Mens Rea & Actus Reus.

 * Mens Rea             *Actus Reus.

       

                 

                                    Mostly crimes pivot upon... mens rea and actus reus.

            Mens rea.... to have "a guilty mind."

         It is wrong for those who innocently cause harm.

          Actus reus literally means "guilty act,"  an overt act for commission of a crime. The Physical act of Committing a Crime.

* The actus reus and the mens rea are of concomitant value.

* Most crimes have the element of a mens rea.

* Must always be proven that an unlawful  act  is committed by an accused.

*It will usually have to be proven that the accused committed with guilty mind in engaging such conduct.

Intensity  of intention.

Theft case:- the prosecution must that the defendant intentionally took property  without entitlement.

 Negligent homicide, A drunk driver who kills another is often charged with criminal negligent homicide.

General Intention.

 General intention is to do something that the law prohibits.

Specific Intention.

Special intention is beyond the actus reus, of the crime,  generally signifies an intentional or known state of mind.

* Strict Liability Crime.

 Intention is irrelevant in strict liability crimes. Only to prove that the forbidden act occurred.

 Rape & Murder,etc, are  strict liability crime.

.

 Vicarious liability offenses  

The defendant's criminal liability is predicated upon the actions of another, often based upon an employer/employee relationship. .

Voluntary Act.

   Actus reus requires a voluntary act.  A lifeguard who allows a child to drown would almost certainly face criminal charges.

Purpose:   A person acts  with the intention that his action causes a certain result..

Knowledge: A person acts knowingly if he is aware that his conduct will result in certain consequences.

The difference between acting intentionally and acting knowingly is somewhat subtle,

Negligence: A person acts negligently if they should have been aware of a substantial and unjustifiable risk that a certain consequence would result from their actions.

Concurrence of the Actus Reus and Mens Rea

In order to be convicted of a crime the defendant must have had the requisite intent at the moment he performed the act. This is called the concurrence rule

Intention and Mens Rea

intention means whoever  fires at any person with the intention to carry out murder shall be guilty of a felony, whether or not it will result to any physical harm. The intent of the accused can only be determined from a consideration of his actions and the surrounding circumstances.

Diagnosis of Intention.

 Apparently, if the accused expressed the intention to do a thing and carried on to accomplish that intention, proving that the accused acted with intent will be reasonably simple.

Omissions Liability and Actus Reus

 In criminal liability, an omission or a part thereof cannot form the actus reus of a crime as a general rule. But this principle is also subject to exceptions.

Concurrence of Mens Rea and Actus Reus

      It must moreover establish that mens rea existed at the time of the actus reus. At times whether the actus reus and mens rea concurred may not be apparent. An actus reus is a continuing act, and as such, in order to ensure a conviction, the accused must be proven to have the required mens rea at some period during its continuation, although it is not essential to establish that at the outset the requisite mens rea was present with the accused.

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FIA & justice of Peace

 

2021 LHC 1217

                Whether the term 

‘Police authorities’ used in section 22-A (6) Cr.P.C. includes F.I.A. and if it does, whether the judicial review under Article 199 of the Constitution is maintainable. ? 

      It shall be to scrutinize few provisions of the Federal Investigation Agency Act, 1974 (hereinafter Act of 1974).  F.I.A. was constituted under section 3 of this Act and under section 4 superintendence and administration of agency shall vest in Director General of agency. 

Section 4(2) of the Act of 1974 provides that the administration of the Agency shall vest in the Director General who shall exercise, in respect of the Agency, the powers of an Inspector General of Police under the Police Act, 1861. While Section 5(1) in most unequivocal manner provides that the members of the Agency shall, for the purpose of an inquiry or investigation under this Act, have throughout Pakistan such powers, including powers relating to search, arrest of persons and seizure of property, and such duties, privileges and liabilities as the officers of Provincial Police have in relation to the investigation of offences under the Cr.P.C. or any other law for the time being in force. Likewise, section 5(2), for the purpose of any inquiry, empowers a member of the agency, who is not below the rank of a Sub-Inspector to exercise any of the powers of an officer-in-charge of a Police Station.

        Therefore, when status, functions, rights, privileges and liabilities of officials of F.I.A. are same as that of Provincial Police officer under the Cr.P.C., ex-officio justice of peace is very much competent to issue directions to the respondents as it can issue to the Provincial police and contention of the learned counsel for the petitioners regarding lack of jurisdiction of ex-officio justice of peace in matters of F.I.A. is not tenable. 

The term ‘police authorities’ used in section 22-A(6) Cr.P.C. is wide enough to include FIA officials and does not only connote provincial police authorities especially when FIA authorities can use all the powers of a police officer of provincial police under the Cr.P.C.  There is no quibble that there may be some provisions of Act of 1974, which one may find in direct conflict with the provisions of Cr.P.C. and in that case, being special enactment, provisions of the Act of 1974 shall take precedence but this is not the case in instant lis as no provision of the Act of 1974 contradicts the powers of ex-officio justice of peace granted u/s 22-A (6) Cr.P.C.

      An aggrieved person can also seek his remedy against F.I.A. by filing complaint before the ex-officio justice of peace. Therefore, an aggrieved person is fully competent to file a complaint u/s 22-A(6) Cr.P.C with the ex-officio justice of peace  against any neglect, failure, or excess committed by the F.I.A. authorities and can conveniently get adequate redressal of his grievance from that quasi-judicial forum.  

       As it is clearly established that petitioner had an alternate remedy under section 22-A (6) Cr.P.C. and in such like cases, this Court always shows reluctance to encourage the practice to invoke the extra-ordinary writ jurisdiction under Article 199 of the Constitution. It has become more necessary than ever to put a legitimate check on the carefree constitutional petitions under Article 199 of the Constitution, considering the heavy burden of pending cases in the Constitutional Courts. The provisions of Section 22-A (6) Cr.P.C. were made part of the statute book with the object to reduce the burden of this Court by designating Sessions Judges and on their nomination Additional Sessions Judges as ex-officio justice of peace to share the powers of this Court in the matters mentioned in sub-section (6) of section 22-A Cr.P.C.         Learn more

Rash driving

     

      2021 PCrLJ 895

Ss. 279 & 337-G---Criminal Procedure Code (V of 1898) Ss. 435 & 439---Rash driving or driving on a public way---Punishment for hurt by rash or negligent driving---Simultaneous conviction of accused under Ss. 279 & 337-G, P.P.C.-Scope---Accused impugned his conviction under Ss. 279 & 337-G, P.P.C. on ground, inter alia, that that under law, he could not have been convicted under Ss. 279 & 337-G, P.P.C. simultaneously---Validity---Bare reading of Ss. 279 & 337-G, P.P.C. revealed that same applied to two different situations- Section 279, P.P.C. was applicable where there was rash or negligent driving or riding on public way which endangered human life, however where such driving actually caused hurt to person(s), then S. 337-G, P.P.C. would be attracted---Accused therefore could not have been convicted under Ss. 279 & 337-G, P.P.C. simultaneously- Imposition of separate sentences would not be justified where acts constituting two different offences formed part of same transaction against same accused---In the present case, it was proved that accused actually caused hurt to victims and therefore his conviction fell squarely within ambit of S. 337-G, P.P.C.---Trial Court therefore erred by convicting accused simultaneously under Ss. 279 & 337-G, P.P.C.---High Court set aside conviction of petitioner under S. 279, P.P.C. while maintaining conviction under S. 337-G, P.P.C.--.2021 PCrLJ 895

The Anti-Rape Ordinance, 2020.

The Anti-Rape (Investigation and Trial) Ordinance, 2020.

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       An Ordinanceto ensure expeditious redressal of rape and sexual abuse crimes in respect of women and children through special investigation teams and special Courts providing for efficaciousprocedures, speedy trial, evidence and matters connected therewith or incidental thereto;

AND WHEREAS the Senate and the National Assembly are not in session and the President is satisfied that circumstances exist which render it necessary to take immediate action;

NOW THEREFORE, in exercise of the powers conferred by clause (1) of Article 89 of the Constitution of the Islamic Republic of Pakistan, the President is pleased to make and promulgate the following Ordinance:-

1. Short title, extent, and commencement.— 

(1) This Ordinance may be called the Anti-Rape (Investigation and Trial) Ordinance, 2020.

(2) It extends to the whole of Pakistan.

(3) It shall come into force on such date as the Federal Government may appoint.

2. Definitions.— (1) In this Ordinance, unless there is anything repugnant in the subject or context,-

(a) “Special Court” means the Court established under section 3 of this Ordinance;

(b) “Special Committee” means the Committee set up under section 15 of this Ordinance; 

(c) “child” means any male or female, who has not attained the age of eighteen years;

(d) “Code” means the Code of Criminal Procedure, 1898 (Act V of 1898);

(e) “Anti-rape Crisis Cell” is a Cell appointed under section 4 of this Ordinance;

(f) “Government” means the Federal Government;

(g) “Independent Support Adviser” means a person appointed, enlisted or recognized as such under section 11 of this Ordinance;

(h) “sex offender” means and includes any person convicted under sections 292A, 292B 292C, 371A, 371B, 375, 375A, 376, 376B, 377, 377A, 377B of the Pakistan Penal Code, 1860 (XLV of 1860) or sections 21 and 22 of the Prevention of Electronic Crimes Act, 2016 (Act XL of 2016); 

(i) “victim” means a woman or child who has been subjected to scheduled offences; 

(j) “Schedule” means a Schedule annexed to this Ordinance; and

(k) “Scheduled offences" means offences as set out in the Schedules against a “victim” or a “child” as defined in this Ordinance.

Explanation.- It is clarified that where the Scheduled offences arecommitted against persons who do not qualify to be categorized as “victim” or “child” as defined under this Ordinance, the offences shall be tried through procedure, rules of evidence and courts, functioning prior to this Ordinance coming into effect. 

(2) All other terms and expressions used but not defined in this Ordinance, shall have the same meaning as are assigned to them in the Pakistan Penal Code, 1860 (Act XLV of 1860) or in the Code of Criminal Procedure, 1898 (Act V of 1898), or the Qanoon-e-Shahadat Order, 1984 (P.O. No. X of 1984).

3. Establishment of Special Courts etc.— 

(1) The President, in consultation with the Chief Justice of Pakistan, shall establish as many Special Courts throughout the country, as he may deem necessary, to try the scheduled offences.

(2) The President, in consultation with the Chief Justice of Pakistan, shall appoint any person as a Judge of the Special Court, who is or has been a Sessions Judge or Additional Sessions Judge, or has been an advocate of the High Court for a period of not less than ten years, and is not more than seventy years of age at the time of appointment.

(3) In addition to or in lieu of the establishment of Special Courts under sub-section (1), the President may, in consultation with the Chief Justice of Pakistan, designate, throughout the country, as many Courts of Sessions Judges or Additional Sessions Judges as Special Courts, as he may deem fit. 

(4) A Judge of the Special Court shall have the same powers and jurisdiction as the Court of Sessions, provided under the Code. 

(5) A Judge of the Special Court shall be appointed for a period of three (3) years on such terms and conditions as may be determined by the President. 

(6) A Judge of a Special Court shall only be removable before the expiry of his tenure if he is found guilty of misconduct.

(7) The disciplinary proceedings against a Judge of a Special Court shall be conducted in the same manner and under the same legal provisions and rules as prescribed for a District and Sessions Judge. 

(8) During his tenure, a Judge of a Special Court may be transferred to another Special Court within the same Province, by the President, in consultation with the Chief Justice of Pakistan.

(9) Subject to sub-section (10), the trial of Scheduled offences shall ordinarily be conducted in the Special Court within whose territorial jurisdiction the offences are committed.

(10) In exceptional circumstances, which may include the protection of the victim, hisor her family, witnesses, or other practicable reasons, the President, on his own or upon application, in consultation with the Chief Justice of Pakistan, may transfer the trial and proceedings of a case to any Special Court anywhere in the country, as he may deem fit. 

4. Anti-Rape Crisis Cells.— 

(1) The Prime Minister shall establish or designate as many Anti-Rape Crisis Cells throughout the country in relation to offences mentioned in Schedule-II, in such public hospitals with adequate medical facilities, as he may deem fit. 

(2) The Anti-Rape Crisis Cells shall be headed by the concerned Commissioner or Deputy Commissioner of the area, as deemed fit by the Prime Minister, and shall also comprise the Medical Superintendent of the public hospital designated under sub-section (1), at least one Independent Support Adviser, and the District Police Officer of the concerned District or a Police Officer heading a Division, as deemed fit by the Prime Minister.

Provided that at least one member of the Anti-Rape Crisis Cell shall preferably be a woman. 

5. Power, duties and functions etc. of the Anti-Rape Crisis Cell.— 

(1) As soon as an Anti-Rape Crisis Cell receives information from any source, on its own accord or upon application by any person, orally or in writing, of an offence mentioned in Schedule II, it shall without any delay ensure the following:-

(a) conduct of a medico-legal examination without any delay, preferably not later than six 

(6) hours from the time of receipt of information;

(b) securing, collection and gathering of such evidence as may be expedient; 

(c) conduct of a forensic analysis examination;

(d) registration of an FIR by the Police; and

(e) performing of any other action as may be necessary.

(2) The actions mentioned in sub-section (1) may be taken without any preferred order, however, all the said actions are required to be taken up expeditiously. 

(3) As soon as an officer-in-charge of a Police Station receives any information with regard to the commission of an offence mentioned in Schedule-II, he shall, without any delay,transmit such information to the Anti-Rape Crisis Cell.

(4) The Prime Minister may from time to time, upon recommendations of the Special Committee, issue guidelines for the Anti-Rape Crisis Cells to efficaciously carry out their powers, duties and functions.

6. Legal assistance.— 

(1) The Legal Aid and Justice Authority established underthe Legal Aid and Justice Authority Act, 2020 (Act XVI of 2020) shall provide legal assistance to victims of Scheduled offences. In addition, the Fund established under this Ordinance shall also be utilized for legal assistance under this Ordinance.

(2) In addition to the legal assistance under sub-section (1), the Special Committee shall in consultation with the Ministry of Human Rights, approve panels of advocates and volunteers in each district or, if necessary in any tehsil, for the provision of legal, financial or other assistance either on pro bono or on fee basis, for which the Fund under this Ordinance and under the Legal Aid and Justice Authority Act 2020 (Act XVI of 2020) will be utilized. 

7. Prosecutor General and Special Prosecutors.— 

(1) The Ministry of Law and Justice may designate or appoint a Prosecutor General and Special Prosecutors in a manner as may be prescribed by rules notified by the Prime Minister. 

(2) The Prosecutor General and Special Prosecutors shall prosecute the Scheduled offences. 

8. Victim and witness protection.— 

(1) A victim and witness protection system shall be established as prescribed by the Prime Minister through rules notified by him and shall, with a view to carry out the propose of this Ordinance and without generality of the aforesaid,include the following: -

(i) special security arrangements for witnesses and victims;

(ii) concealment of identity;

(iii) distance recording of testimonies through video-conferencing, audio-video 

links and by the use of modern devices; 

(iv) re-location of victims and witnesses;

(v) provision of reasonable financial assistance; 

(vi) compensation to legal heirs of protected victims and witnesses;

(vii) safe-houses, dar-ul-amans etc.; 

(viii) such other measures as may be necessary and ancillary.

(2) Till such time the rules envisaged in sub-section (1) are prescribed, the witness protection system and benefits prescribed under the Witness Protection, Security and Benefit Act, 2017 (Act XXI of 2017) shall be applicable to both victims and witnesses under this Ordinance, mutatis mutandis.

9. Investigation in respect of Scheduled offences.— 

(1) The investigation in respect of offences mentioned in Schedule-I shall be carried out by a police officer not below the grade of BPS-17, who preferably shall be a female police officer.

(2) The investigation in respect of offences mentioned in Schedule-II shall be carried out  by a special Joint Investigation Team (JIT) comprising the following, out of which at least one shall preferably be a woman:-

(a) the District Police Officer (DPO) as the Head;

(b) one Superintendent of Police (Investigation);

(c) one Deputy Superintendent of Police;

(d) one Station House Officer.

(3) The officers of the JIT shall ordinarily be from the relevant area in which the occurrence of the offence has taken place; however, in exceptional circumstances, where the dictates of fair investigation warrant otherwise, the concerned Inspector General of Police (IGP) may depute in the JIT, officers from areas other than the area of occurrence.

(4) Upon completion of investigation, the JIT shall, through the Prosecutor General or Special Prosecutors, submit a report before the Special Court: 

Provided that notwithstanding anything contained in the Qanun-e-Shahadat Order, 1984 (P.O. 10 of 1984), such report shall be admissible in evidence within the meaning of section 173 of the Code.

10. Connected offences not in the Schedules.— The investigation officer or the JIT, as the case may be, under section 9, may also take cognizance of offences, not listed in the Schedules, committed in connection with the Scheduled offences, as if those offences were Scheduled offences.

11. Independent Support Advisers.— 

(1) If so determined by the Anti-Rape Crisis Cell, an Independent Support Adviser shall accompany the victim during court proceedings, in to order reduce the risk of duress, victimization of any nature, or any adversity afflicted or likely to be afflicted upon the victim. 

(2) The Special Committee, in consultation with the Ministry of Human Rights, shall prepare a list of Independent Support Advisers at District or Tehsil levels.

(3) For the purposes of sub-section (2), the Special Committee shall, in consultation with the Ministry of Human Rights, enlist a civil society or a non-governmental organization, whose members or nominees may act as Independent Support Advisers. 

(4) An Independent Support Adviser shall be a person having skills to deal with victims of Scheduled offences, who may be a psychologist, or a doctor, or a lawyer, or a para-legal, or a lady-health worker, or a social worker, or a person who is a member or nominee of a civil society or a non-governmental organization enlisted under sub-section (3).

12. In-camera trial.— 

(1) The trial of Scheduled offences shall be conducted in-camera: 

Provided that the Court, if it thinks fit, on its own or on an application made by either of parties, allow any particular person to have access to court proceedings, or be or remain in the Court. 

(2) Notwithstanding anything contained in any other law for the time being in force, where any proceedings are held under subsection (1), the Court may adopt appropriate measures,including holding of the trial through video-link or usage of screens, for the protection of the victims and the witnesses. 

(3) Where any proceedings are held under subsection (1), it shall not be lawful for  any person to publish or broadcast any matter or information in relation to any such proceedings, except with the permission of the Court.

13. Evidence and guidelines.— 

(1) The two-finger virginity testing, for the purposes of medico-legal examination of a victim relating to Scheduled offences, shall be strictly prohibited and no probative value shall be attached thereto.

(2) In respect of any Scheduled offence, any evidence to show that the victim is generally of immoral character, shall be inadmissible. 

(3) The testimonies and evidence of victims, accused and witnesses in Court shall be video-recorded, preserved and reduced in writing. 

14. Statement under section 164 of the Code.— (1) Notwithstanding anything contained in any other law for the time being in force, as soon as practicable, a statement of the victim shall be recorded under section 164 of the Code only once.

Explanation:- The statement under this sub-section shall be video-recorded, preserved and reduced in writing. 

(2) An opportunity of cross examining the victim shall be given to the counsel for the accused and not the accused himself, or the Court may itself put questions to the victim or any questions framed by the accused may be given to the Presiding Officer of the Court who may put such questions, as found appropriate by him, to the victim.

15. Special Committee.—

 (1) The Ministry of Law and Justice shall appoint a Special Committee comprising such members and in such numbers as it may deem fit on pro bono or honorary basis.

(2) The Special Committee shall take all steps, including reaching out to any Federal or Provincial ministry, division, office, agency or authority, for the purposes of effectual compliance of this Ordinance.

(3) The Special Committee may comprise individuals from any Federal or Provincial ministry, division, department, authority or office, or from members of the legal or medical profession, legislators, retired judges, serving or retired public servants, civil society or non-governmental organizations, as deemed fit by the Ministry of Law and Justice.

(4) For the purposes of effective compliance and proper working of this Ordinance,the Special Committee, from time to time, may seek information or require the performance of actions by officers of the Federal or Provincial ministries, divisions, offices, agencies or authorities.

(5) If any person refuses or fails to comply with the directions issued under sub-section (4), the Special Committee may refer the matter to the appropriate authority for taking disciplinary action against the person who disregards the directions. 

16. Trial.— (1) The Court upon taking cognizance of a case, under this Ordinance, shall decide the case expeditiously, preferably within four (04) months. 

(2) A Special Court shall not grant more than two (02) adjournments during the trial of a case, out of which one (01) adjournment shall be upon payment of costs by the person seeking adjournment. Where the defense counsel does not appear after two consecutive adjournments, the Court may appoint another defense counsel with at least seven (07) years standing in criminal matters for the defense of the accused from the panel of advocates maintained by the Special Committee.

(3) If, in the course of a trial, the Court is of the opinion that any of the offences which the accused is alleged to have committed is not a Scheduled offence, the Court shall record such opinion and try the accused only for such offences, if any, as if these were Scheduled offences. 

(4) A Special Court may also try offences, not listed in the Schedules, committed in connection with the Scheduled offences, as if those offences were Scheduled offences. 

Explanation.—It is clarified that sub-section (4) will also be applicable where the provisions of the Anti-Terrorism Act, 1997 (Act XXVII of 1997) are invoked or invokable in respect of offences under this Ordinance.

17. Compensation to the victim.— (1) On conclusion of the trial, the Court may order the convict to pay a portion of the amount fined, if any, as compensation to the victim.

18. Appeal.— (1) Any person aggrieved by the final judgment of a Special Court may file an appeal to a High Court in whose jurisdiction the Special Court tendering theimpugned judgment, is situated. 

(2) Copies of the judgment of the Special Court shall be supplied to the accused and the prosecution, free of cost, on the day the judgment is pronounced, whereafter the record of the trial shall be transmitted to the concerned High Court within three (3) days of the decision. 

(3) An appeal under sub-section (1) may be preferred within thirty (30) days of the final judgment by the Special Court. 

(4) An appeal preferred under sub-section (1) shall be decided by a Division Bench of the High Court, as soon as practicable, preferably within six (6) months from its institution. 

(5) While hearing an appeal the High Court shall not grant more than two consecutive adjournments. 

(6) Pending appeal, the High Court shall not release a person convicted by the trial court.

19. Rules.— (1) The Prime Minister may prescribe rules, upon the recommendations of the Special Committee, for the purposes of carrying out the purposes of this Ordinance. 

(2) Without prejudice to the generality of the foregoing powers, such rules may provide guidelines:

(i) for the purposes of medico-legal examination of the victims;

(ii) in respect of the investigation and prosecution of scheduled offences;including the collection and gathering of evidence;

(iii) in relation to the rehabilitation of the victim, offender, suspect or a member of the society;

(iv) pertaining to gender and children sensitization and training of all relevant stakeholders, including Judges, police-officers, prosecutors, medico-legal officers and staff and other duty officers or personnel, both at the time of induction and subsequently; and 

(v) for providing special trial court rooms; or special rooms or facilities for the victims, especially children, near the trial court rooms, for a conducive environment. 

(3) The Special Committee, in formulating its recommendations under sub-section (1), may consult any ministry, division, office, department, agency or authority in the Federal or Provincial Government and shall take into account modern techniques and devices, as it may consider appropriate. 

20. Fund.— (1) The Prime Minister shall establish a Fund to carry out the purposes of this Ordinance. 

(2) The purposes of the Fund shall include the meeting of any expenses towards:

(a) the establishment of Special Courts; or

(b) with regard to the exercise of any other power, duty or function mentioned in this Ordinance; or

(c) in respect of anything which is ancillary or sundry for the purposes of this Ordinance.

(3) The Fund shall consist of the following sources:-

(a) grants from the Federal Government and Provincial Governments;

(b) aid and assistance from local, national and international agencies;

(c) contributions from statutory bodies, corporations, private organizations and individuals; and

(d) income and earnings from moveable and immoveable properties acquired or leased by the Fund. 

(4) The amount credited to the Fund shall not lapse by the end of a financial year and shall be available for utilization at any time. 

21. Preventive action by police.— If any Police Officer receives information in relation to the commission or threat of commission of a Scheduled offence, he shall immediately interpose, act and take such action as may be necessary including and not limited to the exercising of powers under the Code, in particular sections 149 and 151 thereof, to prevent the commission of such offences, notwithstanding that the offence reported has been committed in an area not within the jurisdiction of such Police Officer. 

22. False investigation or complaint.—(1) Whoever, being a public servant, entrusted to investigate Scheduled offences, fails to carry out the investigation properly or diligently or causes the conduct of false investigation or fails to pursue the case in any court of law properly and in breach of duties, shall be guilty of an offence punishable with imprisonment of either description which may extend to three (03) years and with fine.

(2) Whoever gives to any public servant any information in relation to Schedules offences which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant: 

(a) to do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him; or 

(b) to use the lawful power of such public servant to the injury or annoyance of any person;shall be punished with imprisonment of either description for a term which may extend to three (03) years and with fine.

23. Jurisdiction and transfer of cases etc.— (1) The Scheduled offences shall be exclusively triable by the Special Court.

Provided that the Prime Minister, through notification, may authorize any of the Scheduled offences to be tried through procedure, rules of evidence and courts, functioning prior to this Ordinance coming into effect. 

(2) Subject to sub-section (3), upon commencement of this Ordinance, the trial of Scheduled offences pending in any court shall stand transferred to the Special Court having jurisdiction under this Ordinance and such Court shall proceed with the case from the stage at which it was pending immediately before such transfer and it shall not be bound to recall or re-hear any witness who has given evidence and may act on the evidence and procedures already recorded and complied with, respectively.

(3) Each time a new offence is inserted into any of the Schedules to this Ordinance, sub-section (2) shall come into operation, mutatis mutandis, from the date of such insertion.

24. Register of sex offenders.— (1) The Special Committee may issue appropriate directions, from time to time, to the National Data-Base Registration Authority to prepare a register of sex offenders, the details whereof may not be published or released except to a court of law or a law enforcement agency. 

(2) Notwithstanding the aforesaid, the Prime Minister may prescribe rules, upon the recommendations of the Special Committee, for the release of such data of the register of sex offenders to any person, agency, authority or segment of the society in public interest and safety. 

(3) In issuing the directions under sub-section (1), the Special Committee may require the National Data-Base Registration Authority to prepare different categories of sex offenders in the register under this section. 

25. Public reporting mechanism.-- The Prime Minister, upon recommendations of the Special Committee, frame rules for establishing a reporting mechanism for receiving information from the public about suspicious persons or those suspected to have committed or capable of committing the Scheduled offences. 

26. Non-disclosure of identity of victims etc.— 

(1) No person shall disclose or reveal the identity of any victim or victim’s family in respect of the scheduled offences, without prior written permission of the victim or victim’s guardian where the victim is a minor or the victim’s family, as the case may be.

(2) Any person contravening sub-section (1) shall be guilty of an offence punishable in the same manner and to the same extent as provided under section 376A of the Pakistan Penal Code, 1860 (Act XLV of 1860).

27. Ordinance not to derogate from other law.  In respect of offences mentioned in Schedule-I, the provisions of this Ordinance shall be in addition to and not in derogation of any other law for the time being in force.

28. Overriding effect.— In respect of offences mentioned in Schedule-II, the provisions of this Ordinance shall have effect notwithstanding anything inconsistent contained in any other law for the time being in force.

29. Application of Code.— The provisions of the Code, to the extent not inconsistent with anything contained in this Ordinance, shall apply mutatis mutandis. 

30. Amendment in the Schedule.— The Prime Minister may by notification in the official gazette, amend the schedule under this Ordinance so as to include or exclude any offenceor explanation. 

31. Removal of difficulties.—Where any difficulty arises in giving effect to any of the provisions of this Ordinance, the Prime Minister may, by notification in the official Gazette, make such order, not inconsistent with the provisions of this Ordinance, as may appear to be necessary for the purpose of removing the difficulty.

SCHEDULE-I

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1. Offences under sections 34, 292A, 292B 292C, 354, 365, 365A, 368, 369, 369A, 498B 498C, 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860)

2. Offences mentioned in Chapters V and V-A of the Pakistan Penal Code, 1860 (Act XLV of 1860)

3. Offences under sections 21 and 22 of the Prevention of Electronic Crimes Act, 2016 (Act XL of 2016)

4. Offences under the Anti-Terrorism Act, 1997 (Act XXVII of 1997) which are committed along with the offences in this Schedule

Explanation:- It is clarified that offences under sections 34, 365, 365A, 368, 369, 369A, 498A 498C and 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in items nos. 2 and 4, above, shall only be cognizable and triable as offences falling under this Schedule, if they are connected with offences under sections 292A, 292B, 292C and 354 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in item no.3 above.      

                         Learn More

SCHEDULE-II

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1. Offences under sections 34, 336A, 336B 354A, 364, 364A, 365B, 366A, 366B, 367A, 371A, 371B, 375, 375A, 376, 376B, 377, 377A 377B, 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860)

2. Offences mentioned in Chapters V, V-A and XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860)

3. Offences under the Anti-Terrorism Act, 1997 (Act XXVII of 1997) which are committed along with the offences in this Schedule

Explanation:- It is clarified that offences under sections 34, 364, 364A and 511 of the Pakistan Penal Code, 1860 (Act XLV of 1860) and offences mentioned in items nos. 2 and 3, above, shall only be cognizable and triable as offences falling under this Schedule, if they are connected with offences under sections 336A 336B, 354A, 365B, 366A, 366B, 367A, 371A 371B, 375, 375A, 376, 376B, 377, 377A and 377B of the Pakistan Penal Code, 1860 (Act XLV of 1860).

Oral Agreement

.         Oral agreement to sell

                   2016 SCMR 1925

                   2019 CLC Note 46

Oral agreement was to be pleaded in the suit with full details i.e. specific date, time and place of agreement between the parties and witnesses of the same as well as earnest money paid under the said agreement.

  Suit Of Contract on Basis of Oral Agreement/contract, decreed.*

    Sec.12 SRA, Art. 103 QSO 1984, Sec. 5, Contract Act 1872.

2019_YLR_223*

2016_YLR_100_Sindh*

*2014_SCMR_1217*

*2002_SCMR_326*

*2012_MLD_1873*

*2011_SCMR_1009*

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              2020 M L D 1230

                    [Peshawar]

(a) Transfer of Property Act (IV of 1882)-----Ss. 9, 53-A & 54---Oral agreement to sell---Transaction with Pardanasheen lady---Requirements--- Burden of proof---Procedure--- Oral agreement to sell---Limitation---Commencement of.

     Predecessor-in-interest of plaintiffs remained alive for twenty six years after execution of alleged oral agreement to sell but he never claimed the ownership of suit property nor approached the Court of law. Present suit had been filed after thirty three years from the alleged agreement to sell. Plaintiffs were not vigilant in asserting their right by filing the present suit. Nothing was on record that plaintiffs had performed any overt act to keep the agreement to sell alive. Alleged oral agreement to sell had expired in circumstances. Witnesses produced on behalf of plaintiffs had failed to state the exact date and time of alleged oral agreement to sell. Executant of alleged agreement to sell was Pardanasheen lady and her identity had not been established during evidence of plaintiffs. Burden of proof to establish oral sale was on the plaintiffs who had failed to discharge the same. No family member of executant of agreement to sell was present at the time of its execution. Every precaution should have been taken to ensure that the pardanashin person who was produced before the witnesses was actually the purported vendor. Plaintiffs had failed to establish the oral sale, payment of sale consideration and identity of parda observing lady. Vendee to prove sale deed on behalf of Pardanasheen was required to establish that lady had comprehended the terms and conditions of sale transaction. Plaintiffs should have proved that lady was accompanied by her close relative having no clash of interest and sale transaction was completed before witnesses and sale consideration was fixed and paid to her and she was aware of the piece of land being sold to vendee. Absence of duress, protest, lack of misunderstanding or want of comprehension would not itself be the proof of understanding of the executant. Evidence should have been brought on record that documents were read over and explained to the executant. Where writing for transfer of tangible immovable property was necessary then same should be made in writing and not orally. When transfer of tangible immovable property of valuing one hundred rupees and upward was made then it could be made only by a registered instrument. Where no document was available even then evidence should be produced to satisfy the Court that there existed a contract so that Court might ascertain with reasonable certainty as to what were its terms. Defendant for the protection of section 53-A of Transfer of Property Act, 1882 should be willing to perform the terms of contract as required. Where burden of proof had not been discharged then Section 53-A of Transfer of Property Act, 1882 would not apply in the matter. Oral agreement to sell was required to be documented in the revenue record through mutation within a reasonable time. Limitation to enforce oral agreement to sell would start from the date of refusal but in absence of any such refusal too it was duty of beneficiary to make efforts to safeguard his right. If no such efforts were made then after lapse of three years the beneficiary of oral sale would be barred by the law of limitation to file suit for specific performance. No date of refusal on the part of defendant to enforce alleged oral agreement had been mentioned in the plaint in the present case. Plaintiffs should have filed suit within limitation even if there was no refusal on the part of defendants. Neither mis-reading or non-reading of evidence nor any error in concurrent findings had been pointed out in the impugned judgments passed by the Courts below. Revision was dismissed in limine, in circumstances.

       Ainuddin and others v. Abdullah and another 2019 SCMR 880; Wali Muhammad Khan and another v. Mst. Amina and others 2018 SCMR 2080; Mst. Nishata v. Muslim Khan alias Musali and others PLD 2011 Pesh. 23; Bakhtiar v. Nasrullah and 12 others 2015 CLC 385; Abdullah Bhai and others v. Ahmad Din PLD 1964 SC 106; Manzoor Hussain v. Muhammad Fazal and 8 others 2002 CLC 1165; Mumtaz Hussain Khan and 5 others v. Muhammad Hussain and 3 others 2001 CLC 946 and Mst. Kubra Amjad v. Mst. Yasmeen Tariq and others PLD 2019 SC 677 rel.

(b) Administration of justice---

----Law favours vigilant and not the indolent.

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: 2020 Y L R 2398

[Lahore (Multan Bench)]

Specific Relief Act (I of 1877)---

---S. 12---Suit for specific performance of agreement to sell---Oral agreement---Interested witness---Non-availability of independent advice to an infirm lady---Effect---Suit for specific performance of oral agreement to sell filed by petitioner was concurrently dismissed by the Trial Court and Appellate Court---Validity---Petitioner was required to specifically state in the plaint the time, date and place where the agreement was executed and the name of witnesses in whose presence the said transaction was agreed between the parties---Plaint did not reveal as to when and where the agreement was entered between the parties---First witness was the husband of petitioner while the other was the friend of her husband, therefore, both were interested witnesses---Petitioner had failed to establish as to how a huge amount of partial payment was paid by her to the deceased-lady (respondent) and where she had kept the said amount---Petitioner had failed to explain as to what was the need and what independent advice was available to the deceased lady for making such a transaction in favour of her sister and that too orally and in the absence of any independent witness--- Petitioner could not substantiate her claim for specific performance of the oral agreement and the judgments passed by courts below dismissing her suit concurrently were well founded and warranted no interference by High Court---Revision petition was dismissed.

            Moiz Abbas v. Mrs. Latifa and others 2019 SCMR 74 and Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others 2019 SCMR 524 ref.

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: Oral agreement / Supreme Court Judgments

---

2010  SCMR  988     SUPREME-COURT 

Side Appellant : RASOOL BAKHSH NAICH 

Side Opponent : Syed RASOOL BAKHSH SHAH 

Ss. 8 & 27(b)---Transfer of Property Act (IV of 1882), S.41---Suit for specific performance of agreement to sell---Two rival suits in field in respect of suit-land, one by prior vendee alleging written agreement to sell in his favour and delivery of its possession, and other by subsequent vendee alleging oral agreement to sell in his favour---Prior vendee in support of written agreement examined vendor, scribe and attesting witnesses thereof and produced Khasra Girdawri regarding his possession over suit-land---Validity---Vendor as witness had affirmed to have entered into written agreement to sell with prior vendee and received sale consideration---Subsequent vendee during cross-examination could not create any dent in credibility of vendor---Prior vendee had proved delivery of possession by producing Khasra Girdawri and examining witnesses---Prior vendee by producing such evidence had discharged initial cries to prove execution of agreement and delivery of possession indicating his lien over suit-land-Subsequent vendee had neither pleaded nor proved in affirmative lack of knowledge or notice of such prior written agreement nor had alleged same to be fake---Nothing on record to show that subsequent vendee had made any enquiry regarding such prior written agreement or lien over suit­-land---Factum of possession of prior vendee over suit-land was sufficient notice to subsequent vendee that there was a prior lien and charge thereon---Suit filed by prior vendee was decreed and that filed by subsequent vendee was dismissed in circumstances.

2009  SCMR  451     SUPREME-COURT 

Side Appellant : Mst. REHMU 

Side Opponent : Mst. AMINA BIBI 

S. 12---Constitution of Pakistan (1973), Art.185(3)---Suit for specific performance of oral agreement to sell---Plaintiff had failed to produce trustworthy, cogent and independent evidence to prove payment of the earnest money and that she was willing and ready to perform her part of agreement---High Court, after legally appreciating the evidence on record and taking into consideration every aspect of the case, had rightly affirmed the findings of the first Appellate Court---Plaintiff could not point out any misreading or non-reading of evidence on record justifying interference by Supreme Court in the judgment---No legal infirmity having been found in the impugned judgments sufficient to reverse the concurrent findings arrived at by both the Appellate Courts, Supreme Court dismissed petition for leave to appeal.

2005  SCMR  766     SUPREME-COURT

Side Appellant : KHURRAM SHAFI 

Side Opponent : Mst. INAYAT BIBI 

--S. 550---Specific Relief Act (I of 1877), Ss.12 & 54---Custody of vehicle on Superdari---Police intercepted vehicle from petitioner---Suit filed by petitioner was dismissed, wherein he had prayed that vehicle be not taken from him---Petitioner sought Superdari of vehicle on the ground that he had purchased same through oral agreement from respondent owner---Magistrate granted Superdari of vehicle to petitioner, which order was upheld by Revisional Court, but was set aside by High Court in Constitutional petition---Validity---Civil Judge while dismissing suit observed that petitioner had not produced any agreement to sell to have been made between parties with regard to vehicle; and as question of title was in dispute, suit for permanent injunction was not maintainable, rather he should have filed suit for specific performance of agreement---Petitioner had not challenged such judgment before any higher forum, which had attained finality---Petitioner had not brought a single document worth consideration on record as to substantiate his claim---Impugned order did not suffer from any illegality or legal infirmity warranting interference---Supreme Court dismissed petition and refused leave to appeal in circumstances.

Laches & Inheritance

 

  Doctrine, Laches. 

          2020 M L D 1211

            [Lahore (Multan Bench)]

a) Inheritance----

-Laches, doctrine of---Applicability---Contention of plaintiffs was that their predecessor-in-interest had been deprived from inheritance ---Suit was decreed concurrently---Validity---Predecessor-in-interest of plaintiffs remained alive for more than twenty five years but she did not initiate any legal proceedings to seek her inherited estate---Law aids the vigilant and not the indolent---Doctrine of laches was applicable in the present case---Plaintiffs had lost enforcement of their right due to lapse of ninety three years and a number of mutations had been attested ever since---Limitation could be ignored when matter was with regard to inheritance---Party should have approached the Court and take recourse to legal remedies with due diligence---When suit had been filed by legal heirs of the right-holder after his/her death then law of limitation would apply---Impugned judgments and decrees passed by the Courts below were set aside and suit was dismissed---Revision was allowed, in circumstances.

       Atta Muhammad v. Maula Bakhsh and others 2007 SCMR 1446; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Noor Din and another v. Additional District Judge, Lahore and others 2014 SCMR 513; Ghulam Ali and 2 others v. Mst.Ghulam Sarwar Naqvi PLD 1990 SC 1; Arshad Khan v. Mst. Resham Jan and others 2005 SCMR 1859; Mahmood Shah v. Syed Khalid Hussain Shah and others 2015 SCMR 869; Mst. Shehla Naz through Special Attorney v. Jawaid and 2 others 2010 CLC 1086 and Bashir Ahmad Khan and others v. Ghulam Sadar-ud-Din Khan and others 2012 CLC 699 ref.

       Aftab Iqbal Khan Khichi and another v. Messrs United Distributers Pakistan Ltd. Karachi 1999 SCMR 1326; Nazakat Ali v. WAPDA through Manager and others 2004 SCMR 145; S.M. Afzal ul Rehman v. Federation of Pakistan and others 2005 SCMR 1322; Lahore Development Authority v. Mst. Sharifan Bibi and another PLD 2010 SC 705; Ahmad Din v. Muhammad Shafi and others PLD 1971 SC 762; Luqman and others v. Gul Muhammad 1984 SCMR 63; Mst. Phaphan through L.Rs. v. Muhammad Bakhsh and others 2005 SCMR 1278; Muhammad Rustam and another v. Mst. Makhan Jan and others 2013 SCMR 299; Shero v. Muhammad Ramzan and 2 others 2006 YLR 2632; Nasrullah Khan and 4 others v. Nazir Begum and others 2012 YLR 2613; Shah Jahan v. Mst. Sadu Bibi 2016; YLR Note 6; Bagh Ali v. Ahmad Yar and others 2016 CLC Note 76; Atta Muhammad through L.Rs. and others v. Muhammad Khan and others 2018 MLD 1524 and Kausar Ali and another v. Javed Anjum and 6 others 2018 CLC 1930 rel.

(b) Administration of justice---

   * Law aids the vigilant and not the indolent.

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                2014 SCMR 801 

challenge of Inheritance by sister after 50 years

Sister filing suit challenging said mutation after a laps of 50 years-- Limitation--Through inheritance brother became owner of 2/3rd of the property, while sister became 1/3rd of the property by the operation of law and not by any mutation. Mutation was meant to record legal entitlement of the brother and sister. If the mutation was erroneously made in favor of the brother (only) , such mutation would not create title of the brother (only), such mutation would not create title in favor of the brother in accordance with the law . Suit filed by the sister is not time barred.

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: Muhammad Shamim through Legal Heirs vs. Mst. Nisar Fatima through Legal Heirsand others 2010 SCMR 18, Noor Muhammad (decd.) through L.Rs vs. Jan Muhammad (deceased) through L.Rs etc PLJ 2015 SC 831

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.