SC & NAB

 

SJC deliberates over its jurisdiction to proceed against NAB chairman

Asks AGP to take instruction from govt regarding council’s power to hear complaint against NAB chief

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Hasnaat MalikJuly 12, 2021

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ISLAMABAD:

The Supreme Judicial Council (SJC) has asked Attorney General for Pakistan (AGP) Khalid Javed Khan to take instruction from the federal government on the council's jurisdiction to proceed against the National Accountability Bureau (NAB) chairman over misconduct complaints.

The five-member SJC – presided over by Chief Justice of Pakistan Gulzar Ahmed – on Monday took up the complaints that accused the NAB chairman of misconduct. One of the SJC members – Sindh High Court Chief Justice Ahmed Sheikh – attended the council meeting through video link.

During the meeting, the members raised several questions about the council's jurisdiction to hear the complaints. Former AGP Anwar Mansoor Khan in a written reply told the SJC that law does not mention if the SJC can be a forum to hear complaints against NAB chairman.

Read: NAB moves SC against IHC decision

Read more: SJC to decide about jurisdiction to proceed against NAB chief

The council asked the incumbent AGP to take instruction from the government regarding the SJC jurisdiction in this matter. On the AGP's request, the council postponed the meeting until after summer vacations. Written order of the SJC meeting will be issued later.

Barrister Zafarullah, Saeed Zafar and Mohsin Raza Ranjha had filed these complaints in 2019 and the SJC had placed them for hearing last year.

Legal experts point to the ambiguity in the law regarding dismissal of the top graft buster’s boss.

According to Section 6 of the National Accountability Ordinance (NAO), 1999 the chairman shall not be removed except on the grounds of removal of a Supreme Court judge.

Read more: Ghani says NAB chief under pressure

Legal experts argue that in view of the above provision, the chairman shall be removed for the same reasons as a judge of the apex court as mentioned in the SC Judges’ Misconduct 2009.

However, there is no separate mechanism provided for the removal of NAB chairman in the law. The NAO, 1999 doesn’t even mention if the SJC could hear complaints against the NAB chief.

In Asfand Yar Wali case 2001/02, the top court had directed the federal government to insert conditions regarding the removal of the NAB chairman, noting that the government had “left out” the procedure for sacking the graft watchdog’s chief.

Interestingly, the Constitution is also silent about the removal of the NAB chairman. Article 209 talks about the removal of judges and the auditor general of Pakistan through the SJC.

Another article allows for the removal of the Election Commission of Pakistan (ECP) members by the SJC. However, there is again no mention of the removal of NAB chairman through the council.

In the Panamagate case judgment, Justice Asif Saeed Khosa had also noted that the direction for initiating proceedings against NAB chairman under Article 209 of the Constitution may involve some jurisdictional issues.

A section of the lawyers believes that if the law is silent, the appointing authority – the President of Pakistan – may remove the NAB chairman under General Clauses Act, 1897.

The SJC had earlier raised the same issue of jurisdiction, when it took up a complaint of misconduct against then former NAB chairman Qamar Zaman. That complaint was filed by incumbent information minister Fawad Chaudhry in view of Supreme Court observations in the Panamagate judgment.

A senior official in the law ministry said if the SJC held that it has no jurisdiction to proceed on the complaint of misconduct against the graft watchdog chief then the federal government may carry out new legislation to end ambiguity.

The tenure of the incumbent NAB chief is ending in October this year. However, there are reports that the government is considering different options to give him an extension through legislation.

Some political analysts said the opposition parties will strongly resist any governmental move to extend the tenure of incumbent NAB chairman. During Javed Iqbal’s tenure, many politicians – mainly belonging to opposition parties – were put behind bars during the investigation stage

Court of Session or M. S. 30

  

 

    

 Trial by Court of Session or M. S. 30

       Cr.  Revision No.19  of 2021/BWP

         Muhammad  Sanwal    v.  The State,  etc.

(i)Whether  the  Court  of  Magistrate  empowered  under section  30  of  the  Code  of  Criminal  Procedure,  1898 (Cr.P.C.)  is  competent  to  try  the  offences  of pornography  punishable  under  section  292-C  PPC, which  was  shown  as  triable  by  the  Court  of  Sessions  in column  8  of  the  Schedule  II  attached  with  the  Cr.P.C?   

(ii)Whether  the  offences  mentioned  in  the  relevant  column of  First  Information  Report  (FIR)  i.e.  377  &  292-C PPC  could  be  treated  as  bailable  one  in  the  light  of provisions  of section 6(3)  of the Act ibid?    

Query No 1

Section  377 PPC  is  shown  in  column  8  of  the  Schedule  II  of  the  Cr.P.C.  to be  triable  as  “Court  of  Sessions  or  Magistrate  of  the  first  class”. However,  in  the  same  column  of  the  Schedule  II,  offence  u/s 292-C  PPC  is  shown  as  exclusively  triable  by  the  Court  of Sessions.  But  according  to  Section  30  Code  of  Criminal Procedure,  1898,  any  Magistrate  of  first  class  could  be  invested with  power  to  try  as  a  Magistrate  all  offences  not  punishable with  death.  To  determine  this  controversy,  I  have  perused Chapter-III  of  the  Code,  which  has  given  the  description  of offences  triable  by  each  Court.  Section  28  of  the  Code.

So,  analogy  is  derived  from  class  (c)  of  the  above  referred Section  28,  as  offence  under  section  292-C  PPC  shown  in eighth  column  of  Schedule  II  is  to  be  triable  by  the  Court  of Sessions  but  Section  30  of  the  same  Code  is  the  exception  of the  above  said  principle  and  create  a  separate  forum  of  judicial Magistrate  enabling  with  power  of  Section  30  of  the  Code.

Meaning  thereby  that  the  Magistrate  vested  with  powers  under section  30  of  the  Code  is  fully  empowered/eligible  to  try  all offences  not  punishable  with  death.

There  is  no dispute  regarding  the  jurisdiction  of  section  377  PPC  as  two forums  i.e.  Court  of  Sessions  or  Magistrate  first  class  have  been provided  in  the  relevant  column  of  the  Schedule  II  but  for section  292-C  PPC,  there  is  only  one  forum  available  and  that  is Court  of  Sessions.  But  since  the  punishment  provided  under section  292-C  PPC  is  mentioned  as  [Imprisonment  of  either description  for  a  term  which  shall  not  be  less  than  fourteen years  and  may  extend  up  to  twenty  years  and  with  fine  which shall  not  be  less  than  one  million  rupees.].  Meaning  thereby that  there  is  no  denial  to  the  fact  that  all  the  offences  leveled against  the  petitioner  are  not  punishable  with  death  penalty,  so, according  to  section  30  of  the  Code  as  observed  above,  the learned  Magistrate  having  power  of  section  30  is  fully competent  to  try  the  same.

Answer of the query No 2

...............................

Now  adverting  to  query  No.ii,  it  is  observed  that according  to  section  6  (3)  of  the  Act,  a  juvenile  accused  of  a minor  or  a  major  offence  shall  be  treated  as  if  he  is  an  accused of  commission  of  bailable  offence,  so,  inter  alia  by  deriving analogy  from  this  section  of  the  Act,  learned  Magistrate  Section 30,  while  considering  the  same  as  bailable  one,  admitted  the petitioner  to  post  arrest  bail.

Bare  perusal  of  clauses  "m" and "o" Section  2  of  the  Act makes  it  clear  that  both the  offences  mentioned  in  the  instant  FIR  cannot  be  categorized as  bailable  ones  as  section  377  PPC  is  punishable  [with imprisonment  for  life]  or  imprisonment  of  either  description  for 10  years,  and  fine.  Similarly,  [imprisonment  of  either description  for  a  term  which  shall  not  be  less  than  fourteen years  and  may  extend  up  to  twenty  years  and  with  fine  which shall  not  be  less  than  one  million  rupees]  is  provided  under section  292-C CPC.   

 *Cr.  Revision No.19  of 2021/BWP

 Muhammad  Sanwal    v.  The State,  etc.

kinds of Written Statement

 

   

        Types of Written Statements. 

                 Law:-O-VIII (8), Rr. 1 & 9, CPC.

Written Statements can be filed by a defendant 

1-As of right without any formal permission of the Court; (O-VIII (8), R-1

2-As directed /adourned by the Court to file a Written Statement.  (O-VIII (8), Rr. l &9)

3-With leave of the Court.(O-VIII (8), R-9).

     PLD-2002-Sc-630-   PLD-2001-Lahore-143.

           2003-CLC-1139]  (2017 SCMR 1476)

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Doctrine of Dirty Hands

 

Doctrine of Dirty 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.

Child Protection Courts

 

Child Protection Courts

Child Protection Courts (CPC) have been established under section 22 of the Punjab Destitute & Neglected Children Act, 2007 which provide that the Government may, by notification, establishes one or more Courts under this Act for local area.

Function of the Courts

The Government appoints Presiding Officer of the courts established for the purpose of this act in consultation with the Lahore High Court. Until a court is established for a local area, the Lahore High Court may confer powers of the Court for a local area upon a sessions Judge or an Additional Session Judge. The Child Protection Courts perform the following functions under the provisions of Punjab Destitute and Neglected Children Act, 2007:

1.    Legal custody of destitute and neglected children.                                             
2.    Reunification of Destitute and neglected children with their families.
3.    Trail of cases registered under this act

Parents Protection Law

 

Read also.. 

The Quran

1. "We have enjoined on man kindness to his parents; in pain did his mother bear him, and in pain did she give him birth" (46:15).

2. "Thy Lord hath decreed that ye worship none but Him, and that ye be kind to parents. Whether one or both of them attain old age in thy life, say not to them a word of contempt, nor repel them, but address them in terms of honor. And out of kindness, lower to them the wing of humility, and say: ‘My Lord! bestow on them Thy Mercy even as they cherished me in childhood' "(17:23-24).

3. "We have enjoined on man and woman kindness to parents; but if they (either of them) strive (to force) thee to join with Me anything of which thou hast no knowledge, obey them not'" (29:8).

4. "We have enjoined on man and woman (to be good) to his/her parents; show gratitude to Me and to thy parents; to Me is (thy final) Goal. If they (parents) strive to make thee join in worship with Me things of which thou hast no knowledge, obey them not; yet bear them company in this life with justice (and consideration) and follow the way of those who turn to Me (in love)" (31:14-15).

The Hadith

1. The Prophet Muhammad said, may Allah's peace and blessings be upon him: Your Heaven lies under the feet of your mother (Ahmad, Nasai).

2. A man came to the Prophet and said, ‘O Messenger of God! Who among the people is the most worthy of my good companionship? The Prophet said: Your mother. The man said, ‘Then who?' The Prophet said: Then your mother. The man further asked, ‘Then who?' The Prophet said: Then your mother. The man asked again, ‘Then who?' The Prophet said: Then your father. (Bukhari, Muslim).

3. Abu Usaid Saidi said: We were once sitting with Rasulullah when a man from the tribe of Salmah came and said to him: O Messenger of Allah! do my parents have rights over me even after they have died? And Rasulullah said: Yes. You must pray to Allah to bless them with His Forgiveness and Mercy, fulfill the promises they made to anyone, and respect their relations and their friends (Abu Dawud and Ibn Majah).

4. Abdullah ibn Amr related that the Messenger of Allah said: The major sins are to believe that Allah has partners, to disobey one's parents, to commit murder, and to bear false witness (Bukhari, Muslim).

5. It is narrated by Asma bint Abu Bakr that during the treaty of Hudaibiyah, her mother, who was then pagan, came to see her from Makkah. Asma informed the Messenger of Allah of her arrival and also that she needed help. He said: Be good to your mother (Bukhari, Muslim).

Photo Credits to Habib M’henni / Wikimedia

Malicious Prosecution

Malicious Prosecution

     

     2021 C L C 1008

Malicious prosecution---

----Meaning and concept of "malicious prosecution"---Basic ingredients for "malicious prosecution" to be an actionable tort---Suit for compensation on basis of malicious prosecution---Scope---Malicious prosecution may be defined as institution of criminal or civil proceedings for an improper purpose and without probable cause---Every criminal prosecution / inquiry which ended with clearing of accused, would not per se entitle such person / accused to file suit for compensation----Successful proceedings initiated under law of malicious prosecution required that original proceedings must have been malicious and without cause---Every person had right to set in motion governmental and judicial machinery for protection of rights but such person should not infringe corresponding rights of others by instituting improper legal proceedings in order commit harassment by way of unjustifiable litigation---To be an actionable tort, prosecution must have been malicious and terminated in favour of plaintiff and mere filing of complaint before police authorities on basis of an allegation was not a "legal wrong" for purpose of suit for malicious prosecution---Courts had to determine whether initiation of prosecution was with reasonable and probable cause and circumstances between parties were to be taken into consideration to determine state of mind of prosecutor and defendant---Mere jealousy and grudges would not be reasonable cause and it was an essential ingredient for a suit for compensation based on malicious prosecution that criminal prosecution against plaintiff were initiated with malice.

----"Prosecution"---Meaning of---Prosecution was a criminal proceeding in which an accused person was tried and a prosecution existed where criminal charge was made before a judicial officer or tribunal.

----"Malice"---Meaning of---Malice meant wrongful intention.

     Conditions that have to exist for an action for malicious prosecution to be successful. 

i)     That Plaintiff was prosecuted by the Defendant; ii)     That the prosecution ended in favour of the Plaintiff;

iii)    That the Defendant acted without reasonable and probable cause;

iv)    That the Defendant was actuated by malice (with improbable motive and not to further the ends of justice); and

v)    That the proceedings had interfered with the Plaintiff's liberty and had also affected his reputation and the Plaintiff had suffered damages

SaleWithNoTitle I SpecificReliefAct I S.25SRA I HkLegalTv IAsjCjExam I L...

SRA 1877

S.25......Transfer without Title

Good cause

 

P L D 2020 Balochistan 5

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

----O. VII, R. 14, O. XIII, Rr. 1, 2, 3 & O. XVI, Rr. 1 & 2---Qanun-e-Shahadat (10 of 1984), Arts. 90 & 134---Specific Relief Act (I of 1877), S. 42---Suit for declaration---Production of document not relied upon---Good cause---Scope---Phrase 'good cause' to be construed liberally to serve the ends of justice---Rational behind O. XIII, R. 2, of C.P.C. was to prevent fraud and not to penalize the parties for non-production of documents on the first hearing of the suit or at the time of filing of plaint or written statement---If there was no element of fraud or doubt as to authenticity of documents then application for production of documents could not be discarded---List of witnesses should be filed within seven days from framing of issues---No one could be permitted to call witnesses other than those mentioned in the list except with the permission of Court on showing good cause for omission of said witnesses from the list---Delinquent party for calling a witness through Court had to show good cause and explain the delay in disclosing the name of witnesses---Document required to be produced was public document having presumption of truth and it should not be discarded unless proved otherwise by convicing and cogent evidence---Person summoned to produce a document did not become a witness by mere fact that the had produced the same---Constitutional petition was dismissed, in circumstances.

            PLD 2013 SC 255 foll.

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

----O. XIII, R.2---"Good cause"---Connotation.

       The phrase "good cause" means adequate sound and genuine reason and it depends upon the facts and circumstances of each case, no hard and fast and absolute criteria can be set forth, as to what constitutes a good cause, however, the phrase "good cause" used in Order XIII, Rule 2, C.P.C. should be construed liberally to serve the ends of justice. Order XIII, Rule 2, C.P.C. being a general provision applicable to both i.e. the plaintiffs as well as defendants. The rationale behind Order XIII, Rule 2, C.P.C. is to prevent the fraud and not to penalize the parties for non-production of documents on the first hearing of the suit or at the time of filing plaint or written statement, if there is no element of fraud or doubt as to authenticity of the documents that the application ought not to be discarded as Rule 2 and the procedure are intended to advance balance on showing "good cause".

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

----O.XVI, Rr. 1 & 2---Filing of list of witnesses after settlement of issues---Time frame---Calling of witnesses other than those in the said list---Scope and requirements.

            Provision of Order XVI(1), C.P.C. is mandatory by using word "shall" giving timeframe of seven days to the party to file list of witnesses after settlement of issues and Sub-rule (2) further prohibits that the party "shall not" be permitted to call witnesses other than those in the said list except with the permission of the Court on showing "good cause" for the omission of the said witnesses from the list, therefore, not only the 'good cause" has to be shown by the delinquent party for calling a witness through the Court but at the same time the applicant is required  to  explain  the  delay in disclosing the name of the witnesses

First Hearing of Suit

 

         First Hearing in a Civil Suit.

   T

1990  MLD  1368    

                                                    LAHORE-HIGH-COURT-LAHORE

  

      Civil Procedure Code --Order VIII of C.P.C. Written Statement and Set-off ----O.VIII, R.2---List of reliance, filing of---When no List of reliance is annexed or presented, defendant should be allowed a further period of ten days to file list of documents from the date of first hearing of suit---First hearing of suit means the date on which pleadings are considered and issues framed by Court---Petitioner thus could file documents within ten days from the date issues are framed.