Execution by Family court

 Execution by Family court

                  P L D 2022 Lahore 600

         Before Shahid Bilal Hassan, J

SAWERA IKRAM---Applicant

Versus

AMIR NAVEED---Respondent

Transfer Application No. 71691 of 2021 (and connected T.As.), decided on 15th December, 2021.

(a) Family Courts Act (XXXV of 1964)---

---Preamble---Object, purpose and scope---Purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in ultimate justice between the parties---Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law---Court can exercise its own powers to prevent course of justice being refracted from the path---Main object of Family Courts Act, 1964, is for protection and convenience of the weaker and vulnerable segments of society i.e. women and children.

Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others 2010 SCMR 1840 rel.

(b) Family Courts Act (XXXV of 1964)---

----S.13 (4)---Civil Procedure Code (V of 1908), O.XXI---Execution of decree---Procedure--- Provision S. 13 (4) of Family Courts Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by Civil Court as directed by general or special order by District Judge---When a Civil Court is designated and entrusted with duties to execute decrees passed by a Court: Civil or Family, it enjoys powers vested under O. XXI, C.P.C.

(c) Family Courts Act (XXXV of 1964)---

----Ss. 5, 13(4) & 25-A---Civil Procedure Code (V of 1908), S.46---Execution of decree, transfer of---Principle---Applicant was wife of respondent who sought transfer of execution proceedings from the district where property was situated the place of her abode---Validity---Held, there was no need to transfer execution petition to any other Court out of one district to other district where judgment-debtor resided---Executing Court seized of the matter could adopt procedure provided under law by sending a precept through proper channel to the Court where judgment debtor resided or had movable/immovable property so as to attach the same and recover decretal amount as arrears of land revenue, following methodology as provided in S.46, C.P.C.---When all proceedings at trial stage were carried out at a place where women and children resided, forcing them to get transferred execution petition or decree to some other Court, out of District, would cause inconvenience and troubles to them, such was not the myth and essence of Family Courts Act, 1964, as highlighted in its 'Preamble'---High Court for future proceedings directed all District Judges and Family Courts in Punjab Province that while passing money decree in respect of maintenance allowance, alternate prices of dower or dowry articles be fixed and provisions of S.13(3) of Family Courts Act, 1964 should be adhered to---High Court further directed that District Judges to designate a Civil Judge as Executing Court in their Districts as well as Tehsils, where execution petitions for satisfaction of decrees passed by Family Court would be filed and executed/satisfied in accordance with law by adopting all measures in that regard---High Court also directed that in case judgment debtor resided in some other District and owned property, precept would be transmitted for attachment purposes and further proceedings were to be taken in accordance with law---Application was disposed of accordingly.

Amjad Iqbal v. Mst. Nida Sohail and others 2015 SCMR 128; Haji Muhammad Nawaz v. Samina Kanwal 2017 SCMR 321 and Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others 2014 SCMR 1365 ref.

Moazzam Saleem for Petitioner.

Muhammad Mahmood Chaudhry as amicus curiae.

ORDER

SHAHID BILAL HASSAN, J.---This order will dispose of the captioned transfer application as well as following transfer applications seeking transfer of execution petitions:-

1. T.A. No.68040 of 2021 titled Mst. Saba Nasir v. Muhammad Uzman, 2. T.A. No.68728 of 2021 titled Muafia v. Zahid Mehmood, etc., 3. T.A. No. 68832 of 2021 titled Sumera Ameen, etc. v. Faryad Ali, 4. T.A. No.69289 of 2021 titled Iram Farhan etc. v. Raja Farhan Mehmood, 5. T.A. No.68970 of 2021 titled Mst. Rehana Kausar v. Mudasir Hussain, 6. T.A. No.68740 of 2021 titled Iram Shehzadi v. Shabbih Haider, 7. T.A. No. 67912 of 2021 titled Syeda Umm-e-Laila, etc. v. Syed Qamar Abbas Shah, etc., 8. T.A.No.55220 of 2021 titled Sitara Iqbal, etc. v. M. Rashid, 9. T.A.No.70294 of 2021 titled Khalida Parveen v. Adnan Bilal Sial, 10. T.A.No.67734 of 2021 title Mst. Maryum Yousaf v. Qaiser Mehmood, 11. T.A.No.59167 of 2021 titled Mst. Fozia Amjad v. Amjad Farooq, 12. T.A.No.69553 of 2021 titled Mst. Nadaas Bibi, etc. v. Ghulam Rasool, 13. T.A.No.56094 of 2021 titled Nusrat Bibi v. Yasir Mehmood, 14. T.A.No.69898 of 2021 titled Mst. Tayyaba Nafees, etc. v. Tayyab Ali, 15. T.A.No.67606 of 2021 titled Pro. Dr. Umbreen Javed v. Noshad Mahmood, 16. T.A.No.65187 of 2021 titled Ayesha Bibi, etc. v. Ajmal Shahzad, etc., 17. T.A.No.61499 of 2021 titled Azra Parveen v. M. Shafique, 18. T.A.No.59746 of 2021 titled Naveera Irshad v. M. Abdullah, 19. T.A.No.59362 of 2021 titled Mst. Noor Jahan v. Saif Ullah, 20. T.A.No.57711 of 2021 titled Asma Liaqat, etc. v. Mubashir Raheel Riaz, 21. T.A.No.55971 of 2021 titled Asma Yaqoob v. Jamshed Ali, 22. T.A.No.57230 of 2021 titled Fouzia Yasmeen, etc. v. Khalid Mahmood, 23. T.A.No.68994 of 2021 titled Syeda Ayesha Shakeel v. Syed Kamran Khalid, 24. T.A.No.58421 of 2021 titled Mst. Anam Bibi, etc. v. Muhammad Waqas Adil, 25. T.A.No.65274 of 2021 titled Khalida Usman v. Muhammad Shahzad, 26. T.A.No.68227 of 2021 titled Mst. Rehmat Bibi, etc. v. Muhammad Arshad Zaman, 27. T.A.No.69863 of 2021 titled Tayyaba Manzoor v. Nasir Ali, 28. T.A.No.69908 of 2021 titled Mehvish Bibi v. Atta Ullah, 29. T.A.No.42451 of 2021 titled Mst. Shamim Akhtar v. Muhammad Suleman, 30. T.A.No.61325 of 2021 titled Tayaba Afzal v. Farrukh Yasin, 31. T.A.No.69429 of 2021 titled Mugheesa Munir v. Muhammad Rizwan, 32. T.A.No.65380 of 2021 titled Sumaira Arif v. Shahbaz Ali, 33. T.A.No.59839 of 2021 titled Shumyla Mansha v. Khurram Shahzad, 34. T.A.No.67789 of 2021 titled Mst. Samina Bibi v. Muhammad Bukhsh, 35. T.A.No.69567 of 2021 titled Nazish Nazir v. Muhammad Bilal, etc., 36. T.A.No.55531 of 2021 titled Pathani Bibi v. Muhammad Ikram, 37. T.A.No.67640 of 2021 titled Iqra v. Muhammad Nadeem, 38. T.A.No.54307 of 2021 titled Amna Yasin, etc. v. Muhammad Kalim, 39. T.A.No.60947 of 2021 titled Amna Nasir, etc. v. Muhammad Usman Baig, 40. T.A.No.69005 of 2021 titled Afshan Rani, etc. v. Khurram Shahzad, 41. T.A.No.69829 of 2021 titled Mst. Muqadas Bibi v. Asad Iqbal, 42. T.A.No.59170 of 2021 titled Mst. Shazia Parveen v. M. Younas, 43. T.A.No.70461 of 2021 titled Mst. Rukhsana Aslam, etc. v. Khalid Mehmood, 44. T.A.No.65771 of 2021 titled Mst. Ruqia Naz, etc. v. Shakeel Ahmad, 45. T.A.No.71406 of 2021 titled Sumera Bibi, etc. v. Muhammad Saleem, 46. T.A.No.70924 of 2021 titled Mst. Nirma Khalid v. Muhammad Amir Shahzad, 47. T.A.No.71438 of 2021 titled Naeema, etc. v. Javaid Iqbal, 48. T.A. No.71416 of 2021 titled Khalida Parveen etc. v. Muhammad Arshad, 49. T.A.No.66214 of 2021 titled Kaneez Fatima v. Iftikhar Ahmad and 50. T.A.No.64567 of 2021 titled Shafqat Parveen, etc. v. Amjad Hussain.

2. Heard.

3. Preamble of the Family Courts Act, 1964 elaborates the purpose of promulgation of the enactment, which reads:-

'Whereas it is expedient to make provision, for the establishment of Family Courts for the expeditious settlement and disposal of disputes relating to marriage and family affairs and for matters connected therewith.'

Meaning thereby the Family Courts Act, 1964 is a special statute and has been enacted with a specific purpose to precede expeditious settlement and disposal of disputes relating to marriage and family affairs and also matters connected therewith. Furthermore, the purpose of enacting special law regarding family disputes is advancement of justice and to avoid technicalities which are hindrance in the ultimate justice between the parties. Family Court has to proceed on the premises that every procedure is permissible unless a clear prohibition is found in law. The Court can exercise its own powers to prevent the course of justice being refracted from the path; reliance is placed on Sayed Abbas Taqi Mehdi v. Mst. Sayeda Sabahat Batool and others (2010 SCMR 1840). The main object of this enactment is for protection and convenience of the weaker and vulnerable segments of the society i.e. women and children; it is due to this reason that "Nikah" is to be registered where the bride is living; if bridegroom fails to pay maintenance, application for securing maintenance is competent before Union Council where the bride resides and in case permission is required to be sought by the bridegroom for contracting second marriage, application has to be submitted to the Chairman Union Council where the wife resides; same like Talaq proceedings are to be carried out in the Union Council where the wife resides and if any offence relating to offences detailed in the Family Courts Act, 1964, its trial has to be conducted by Family Court within the precincts where the wife resides; moreover, if a father intends to get custody of the minor children, he has to initiate proceedings at a place where the children reside. All these go to divulge that the main purpose of the enactment is to accommodate the women and the children, weaker segments of the society, due to this reason under section 14(3) of the Act, 1964 provides that no appeal or revision shall lie against an interim order passed by a Family Court.

4. Having said above, now when after passing of a decree by a Family Court, the execution petition is filed, the Family Court executing the decree has to proceed with the same under Section 13 of the Act, 1964 and subsection (4) of the said Section is relevant which reads:-

'The decree shall be executed by the Court passing it or by such other Civil Court as the District Judge may, by special or general order, direct.'

Section 13(4) of the Act, 1964 has two parts: first part says that a decree can be executed by the Court itself and second part says that a decree can be executed by the Civil Court as directed by general or special order by the District Judge; meaning thereby when a Civil Court is designated and entrusted with duties to execute the decrees passed by a Court: Civil or Family, it enjoys powers vested under Order XXI of the Code of Civil Procedure, 1908, though section 17 of the Family Courts Act, 1964 provides that the provisions of Qanun-e-Shahadat Order, 1984 and Code of Civil Procedure, 1908 except sections 10 and 11 shall not apply to the proceedings before any Family Court. The bar contained in this section has been manifestly addressed by the Apex Court of the country in Amjad Iqbal v. Mst. Nida Sohail and others (2015 SCMR 128), wherein it has invariably been held:-

'Thus the technical trappings of execution provided in the C.P.C. are excluded from application before the Family Court in execution of a decree for maintenance. Section 13(3) of the Act itself provides that "Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days the same shall, if the Court so directs to recover as arrears of land revenue, and on recovery shall be paid to the decree-holder." This provision in the Act empowers the Family Court to execute its own decree for payment of money by adopting modes provided for recovery of arrears of land revenue. In the West Pakistan Land Revenue Act various modes of recovery of arrears of land revenue are spelt out and one of the modes provided for recovery of arrears of land revenue is by selling the immovable property of the defaulter.' (Underline for emphasis)

Therefore, in order to avoid technical trapping, there remains no need to transfer the execution petition to any other Court out of one district to the other district where the judgment debtor resides. The learned Executing Court seized of the matter may adopt procedure provided under law by sending a precept through proper channel to the Court where the judgment debtor resides or has movable/immovable property so as to attach the same and recover the decretal amount as arrears of land revenue, following the methodology as provided in section 46 of the Code of Civil Procedure, 1908, which enumerates:-

'Precepts.---(1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree.

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.'

It is not meant that the provisions of the Code of Civil Procedure, 1908 are going to be followed in stricto sensu rather the procedure provided therein is to be adhered to by the Family Court because the Family Court is governed by the general principle of equity, justice and fair-play. In addition to this, if the judgment debtor is employed in any department his salary can also be ordered to be attached by the concerned quarters through proper channel and he can be forced to satisfy the decree; thus, when the main purpose of the enactment is to protect the convenience of the weaker and vulnerable segments of the society i.e. women and children, the same cannot be achieved by transferring the decree to a place where they (women and children) do not reside because they will suffer the agony of travelling from a place to the other in order to pursue the proceedings in execution petition before the transferee Court and it would also endanger their lives at the hands of judgment-debtor because of obtaining a decree against him (judgment-debtor). When we go through the ratio of judgment Amjad Iqbal (supra) it comes on surface that the Executing Court of a decree passed by a Family Court may adopt every method in order to get the decree satisfied including attachment of property (movable or immovable), selling the property, attachment of the salary and ordering for arrest of the judgment debtor; all these methods are not provided under the Family Courts Act, 1964 but the same are taken from the Code of Civil Procedure, 1908 as these methods are not inconsistent with the provisions of the Act, 1964 for the purpose of satisfaction of the decree because proceedings of the Family Court, whether as a Trial Court or an executing Court are governed by the general principle of equity, justice and fair-play, as has been held in Haji Muhammad Nawaz v. Samina Kanwal (2017 SCMR 321). In addition to this, in a judgment reported as Muhammad Tabish Naeem Khan v. Additional District Judge, Lahore and others (2014 SCMR 1365), the Apex Court has invariably held:-

'Family Court was a quasi-judicial forum, which could draw and follow its own procedure, provided such procedure was not against the principle of fair hearing and trial.'

5. Pursuant to the above, when all the proceedings at trial stage are carried out at a place where the women and children reside, forcing them to get transferred the execution petition or decree to some other Court, out of District, would certainly, as stated above, cause inconvenience and troubles to them, which is not the myth and essence of the Family Courts Act, 1964 as has been highlighted in its "Preamble".

6. Concluding the above discussion and observations, the following directions are issued to be followed by the District Judges of the Punjab and the Family Courts in future:-

1. While passing the money decree in respect of maintenance allowance, alternate prices of dower or dowry articles, the provisions of section 13(3) of the Family Courts Act, 1964 should be adhered to, which provides that, 'Where a decree relates to the payment of money and the decretal amount is not paid within the time specified by the Court [not exceeding thirty days] the same shall, if the Court so directs, be recovered as arrears of land revenue, and on recovery shall be paid to the decree-holder.'

2. The District Judge will designate a Civil Judge as Executing Court in the District as well as Tehsils, as the case may be, where the execution petitions for satisfaction of decrees passed by the Judge Family Court will be filed and executed/satisfied in accordance with law by adopting all measures in this regard.

3. In case the judgment debtor resides in some other District and owns property, precept will be transmitted for attachment purposes and further proceedings will be taken in accordance with law.

7. In the light of the above, the instant petition and transfer applications, detailed supra, are hereby disposed of, accordingly.

MH/S-6/L Order accordingly.

Concealment of Facts

 

     2019  YLR  815     

        KARACHI-HIGH-COURT-SINDH

 

 O. xxxix , Rr. 1 & 2---Temporary injunction / interim / interlocutory order, grant of.

 Principles-

 Exercise of discretion by the Court.

*Non-disclosure or concealment of pending or

 *Previous litigation.

    √ Sufficient to disentitle a party from equitable relief of temporary injunction.

*Irreparable loss / injury---Scope---Relief of injunction was discretionary and an equitable relief which a party could not claim as a matter of right and he who seeks equity must come to the court with clean hands---Before grant of such relief, conscience of the court had to be satisfied that the party seeking such relief had not acted inequitably and concealment of factum of earlier litigation was contumacious and inequitable and such concealment disentitled a party to grant of discretionary relief of injunction---

°√ Party seeking temporary injunction was duty bound to bring necessary facts about any previous litigation before the Court and complete disclosure about previous connected, related or relevant proceedings and orders was essential and unless non-disclosure of the same could be satisfactorily explained, a claimant should not, as a matter of general principle, be granted interim relief---

•√ Party seeking temporary injunction must also satisfy the court that an interference was necessary to protect it from the species of injury which the court called "irreparable loss" before the legal right could be established---For adjudication of the question of granting or withholding preventive equitable relief, an injury was set to be irreparable either because no legal remedy furnished full compensation for it or if there was no adequate redress for such injury or there existed inherent ineffectiveness of legal remedy for such injury.

Gift

    Gift-Ingredients

      

2020 C L C 1561.  [Balochistan]

(a) Islamic Law---

Gift---Ingredients---Dispute as to execution of gift---Non-joinder of necessary party---Effect---Contention of plaintiff was that suit property had been gifted in his favour---Suit was dismissed by the Trial Court but Appellate Court decreed the same---Validity---Plaintiff had not arrayed Secretary Board of Revenue as party in the suit---Suit was not maintainable due to non-joinder of necessary party---Ingredients of gift i.e. offer, acceptance and delivery of possession were not available to the plaintiff---Physical possession of suit property had not been transferred in his favour on the basis of gift---Impugned gift was defective in nature and was not enforceable under the law---If any of the conditions of gift was missing then it could not be termed as valid gift---Donor had expired in the year 1983 whereas gift deed was of 1984---Plaintiff had also not disclosed correct description of suit property, which had been recorded in the name of Provincial Government---Suit had been filed after lapse of thirty five years and was time barred---Party was to pursue his legal remedy with diligence and if suit was beyond limitation then each day delay should have been explained---Impugned judgment passed by the Appellate Court did not contain findings on each and every issue---Trial Court had passed well-reasoned and speaking judgment and decree based on correct appraisal of evidence---Appellate Court had reversed the findings of Trial Court without any valid and convincing grounds---Impugned judgment and decree passed by the Appellate Court were set aside and those of Trial Court were restored---Revision was allowed, accordingly.

     Principle of Muhammadan Law by D.F. Mulla para. 138; Mst. Rasheeda Bibi and others v. Mukhtar Ahmed and others 2008 SCMR 1384; Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153; Murad Bakhsh and 4 others v. Mst. Syeda Ashraf Jahan and 4 others 2017 CLC 646 and Muhammad Raz Khan v. Government of N.W.F.P and another PLD 1997 SC 397 rel.(

b) Islamic Law---

Gift---Ingredients---Ingredients of gift were offer, acceptance and delivery of possession.

Chance Witness

           Chance Witness

           

  2023 PCrLJ NOTE 110

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

Classification of Evidence

                Classification of Evidence

2023 PCrLJ 1156

                2023 PCrLJ 1156

Classification of Evidence.

      Any given item of judicial evidence may attract more than one of the labels by which varieties of evidence have been classified -- Principal labels are 

( i ) Testimony ,. 

( ii ) Hearsay evidence

( iii ) Documentary evidence , 

( iv ) Real evidence and

( v ) Circumstantial evidence - 

      Testimony means direct evidence ; hearsay , an indirect evidence ; documentary evidence means presentation of facts through documents ; real evidence includes material things ( like case property ) --- In addition to material objects , real evidence also includes documents , physical appearance of persons and animals , demeanour of witnesses , intonation of voices on a tape recording , views , inspections out of courts of locus in quo or of some object which it is impossible or highly inconvenient to bring to court , and , possibly , out - of - court demonstrations or re - enactments of acts or events into which Court is inquiring --- Circumstantial evidence means evidence of relevant facts like motive , plans and preparatory acts , capacity , opportunity , identity , continuance , failure to give evidence , failure to provide evidence and standards of comparison.

Custody and Guardianship

         

                 2023 MLD 1000

      Custody and Guardianship
              فرق
Law maintains a distinction between custody and guardianship and respective rights and obligations in that regard under the Guardian and Wards Act, 1890. 
The definition of ‘guardian’ in section 4(2) appears to include the concept of custody, unless the same has been exclusively awarded by the court to a party who is not the guardian of a minor. 

  Custody under the Act involves a right to upbringing of a minor. 

  * Guardianship entails the concept of taking care of the minor even in situations when the guardian does not have domain over the corpus of the child. A father is considered to be a natural guardian of a minor, since even after separation with the mother, and even when the mother has been granted custody of a minor, he is obligated to provide financial assistance to the minor. The liability to maintain the minor is not only religious and moral but legal. 

   The right of custody of minor is subordinate to the fundamental principle i.e. welfare of the minor. 

  Maintenance of child is the duty of father and the mother cannot be deprived of custody due to her inability to maintain the child for lack of resources.

Dominus Litis

         

            Dominus Litis

            2013 SCMR 602

Case of impleadment of parties to a suit is dependant upon the plaintiff, as a general rule of "dominu s Litis", the plaintiff is the controller of the suit or litigation---Plaintiff could not be compelled to initiate litigation against a specific person, or drop the same, as the case may be---Impleadment of parties to a suit is entirely dependant on the case set up by the plaintiff in plaint, as to who should be sued and arrayed as defendant, as it is for the plaintiff to first determine the cause of action against a specific defendant and then prove same in evidence.

* Expression "dominus litis' means the controller of the suit or litigation.

 1992 CLC 700 ALTAF PAREKH Versus DELMENTS CONSTRUCTION COMPANY

Case of impleadment of parties to a suit is dependant upon the plaintiff, as a general rule of "dominu s Litis", the plaintiff is the controller of the suit or litigation---Plaintiff could not be compelled to initiate litigation against a specific person, or drop the same, as the case may be---Impleadment of parties to a suit is entirely dependant on the case set up by the plaintiff in plaint, as to who should be sued and arrayed as defendant, as it is for the plaintiff to first determine the cause of action against a specific defendant and then prove same in evidence---Mere fact that at the pre-trial stage, one feels that no case would be proved or could not be proved, the name of defendant could not be struck out or deleted, except in very remote cases. 2014 CLC 561 MUHAMMAD IMRAN Versus PRESIDENT KASB BANK LTD.

* Person can not be made party without consent of the plaintiff. 2013 SCMR 602

  "dominu s litis" principle of---Applicability---Scope. PLD 2009 Kar. 227 AL-HOQANI SECURITIES AND INVESTMENT CORPORATION (PVT.) LTD. Versus NATIONAL CLEARING COMPANY OF PAKISTAN LTD

Intermeddler

 

                         S.2(11) CPC.

  "Legal Representative" 

   means:-

* a person who in law represents the estate   of a deceased person, 

 * Any person who intermeddles with the estate of the deceased.

* The person on whom the estate devolves on the death of the party so suing or sued:

            Intermeddler.

     What does Executor de son tort mean?

 * A person not lawfully appointed.

 * He himself to administer the estate.

 * Intermeddles with the administration of the estate.

* He is an executor de son tort .

*  Accountable as if he had authority.

√  Is not a trespasser.

√ assumes representative capacity.

√ Has an intention to represent the estate. 

√ Intermeddler is similar to an executor.

 De son tort (executor of his own wrong) as he takes upon himself the office of an executor by the intrusion.

√  Although not so constituted by the testator. 

√ Without authority intermeddles with the estate of the deceased.

CONFESSION

                 CONFESSION

        U/Ss.164.364,533, Cr.P.C.

       Lahore High Court Rules & Orders 

                     Vol.III, Chap. XIII

        *  Procedure to record Confession.

     Accused should be warned immediately before recording confession  that not bound to confess. 

Steps prior to recording confession;

°√ Handcuff should be removed.

*√Police sent out of Court room.

Questionair for the Accused.

1. For how long have you been with the police?

2. How long have you been with the Police?

3. Has any pressure been brought to bear upon you to make a confession?

4. Have you been threatened to make a confession?

5. Has any inducement been given to you?

6. Have you been told that you will be made an approver?

7. Why are you making this confession?

8.The accused given sufficient time to ponder over the matter.

9. Explain that he is not bound to make a confession.

10.To Confess or not  will not be sent back to police custody but would be sent to the judicial lockup.

 (DB) PLD 1958 Lah. 559. Said Begum. Also PLD 1987 FSC 43 Liaqat Bahadar etc.

11. Should be informed that he is in the court before a Magistrate.

12.His statement may be used against him in evidence.

Keep in Mind.

A participle, a tense, a mood, an emphasis, may make the whole difference between guilt and innocence. "Lord Macaulay

        √ Oral confession of guilt.

      √ Admissions in Civil cases should be received with great caution. 

        "Words may easily be misunderstood by an honest man. 

√ They may easily be misconstrued by knave. 

√ What was spoken metaphorically may be apprehended literally.

 √ What was spoken ironically may be apprehended seriously. 

Case Laws.

        The Magistrate should satisfy that the confession is being made voluntarily and then record it. 

    1975 P.Cr. LJ 889 Muhammad Sharif.

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

Judicial confession not recorded according to High Court Rules as given in Chap. 13 Vol. III Such confession ruled out of consideration. NLR 1987 Cr. 831 Munir Ahmed etc.

Accused cannot be questioned unless a circumstance appears in evidence against him. If such question is put to him and he admits the existence of the circumstance, the statement even if it amounts to a confession cannot be acted upon at the trial. Only that material can be used against the accused which has been obtained in accordance with law, and nothing that is not so obtained is relevant. PLD 1950 BJ 5 Ghulam Farid v. Crown.

Judicial confession; no question recorded by magistrate that if the accused did not make the statement he would not be handed back to the police but would be sent to jail. The appellant remained in police custody after his judicial confession. Confession not relied upon. PLJ 1995 FSC 109, Ahmed Sher.

"Why are you making a confessional statement in a murder case." The Magistrate should have asked this question from all the accused making the confession, which he failed to do. Appeal allowed. PLJ 1996 Cr.C (Pesh) 371, Murtaza etc.

No formalities of law observed. It could not be admissible in evidence at all. AIR 1936 P.C. 253 = PLD 1950 BJ 5 Ghulam Farid v. Crown.

Printed form. It is very undesirable that confessions should be made on any printed form and that the Magistrate should not be made to express his own words exactly why he considered that the confession is being made voluntarily. (DB) 47 Cr. LJ 252 Bhimappa Talwar v. Emp. 222 Ind. Case. 143 = AIR 1945 Bom. 484.

Self-exculpatory confession cannot be used against the co-accused under section 30 of Evidence Act. Cr.LJ 252 Bhimappa Talwar.

Confession not recorded according to sections 164 and 364, Cr.P.C. by Magistrate. The accused took the Magistrate round the place of occurrence and made full confession about the robbery and firing a revolver which killed a pursuer. The Magistrate made rough notes and after dictating a memorandum to the typist destroyed the rough notes. He produced the memo in Court, signed it. It contained the substance but not all of the matter to which he spoke orally. Held, that section 164 and section 364 of the Code of Criminal Procedure must be construed together and the effect of the statute is to prescribe the mode in which confessions are to be dealt with, when made to a Magistrate during the investigation, and to render oral evidence of such confessions inadmissible. It is well-recognised rule of construction that where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. ILR 1936 (17) Lah. 629 Nazir Ahmed v. The King Emperor (PC).

Non compliance with mandatory provisions of Sec. 364(2) Cr.P.C. is not a mere irregularity which is curable but is an illegality which is not curable.

 Case remanded for retrial. PLJ 1997 FSC 52, Mst. Khial Meena etc.

Where a particular procedure is prescribed for doing a particular thing that thing has to be done according to that procedure. When prescribed procedure is not followed it would taint the entire proceedings with illegality or irregularity as the case may be. PLJ 1997 Cr.C (Kar) 33, Saeed Farooq.

Judicial confession when requirement not complied with  by the Magistrate Confession not relied upon. Conviction set aside. PLJ 1992 Cr.C. (Kar.) 400, Manoo.

Provisions of Sec. 364, Cr. P.C not complied with while recording of statement of the accused. Defect not curable by Sec. 537, Cr.P.C. Conviction set aside. NLR 1985 Cr. 113 Muhammad Inayat.

Magistrate not examined.

Magistrate recording confession not examined and Magistrate not complying with legal formalities. Confession not considered. (DB) PLJ 1982 Cr.C. (Kar.) 201 Dost Muhammad.

 Warning given not on record. Nothing on record to show that warning contemplated by section 164 (3), Cr.P.C had been given to the accused. Confession, held, inadmissible, though Magistrate recording confession deposed at trial that such warning had been given. PLD 1965 Kar. 242 Ramzan.

Prescribed warning under section 164 (3), Cr.P.C. not given by Magistrate. Confession vitiated. (DB) PLD 1971 Lah. 850 Ghulam Muhammad.

Time to think over

No time given for thinking over before making judicial confession,  u/s 164 Cr.P.C. Accused was taken to the Magistrate by the police for recording confession at 4 p.m. and his custody was handed back at 4.30 p.m. Held, accused had hardly any reasonable time at his disposal to think over before recording his confession; the circumstances cast doubt about the voluntary nature of the confession. 1993 SCMR 1822, State v. Muhammad Nazeer.

Time to think 

High Court Rules and Orders (Lah.) Vol. III Chapter XIII. Rule 13. At least half an hour to be allowed to prisoner to compose himself before making confession. It is better if more time is given e.g., 24 hours (DB) PLD 1971 Lah. 850 Ghulam Muhammad.

Time for reflection before confession. No hard and fast rule as to how much time is to be allowed. period of time depends on each case. PLJ 1981 SC 52 Gul Jamal 1980 SCMR 654.

Record silent about the circumstances under which accused was brought before Magistrate for recording confession. Accused alleging that he was forced to make a statement. Position held doubtful. Benefit given to the accused. (DB) PLD 1965 Quetta. 20 Ali. v. Adbul Majid.

Questions and answers ,not recorded, 

        If questions are put by the Magistrate, but the actual questions and answers are not recorded, the defect can be cured under section 533 by the evidence of the Magistrate. (DB) ILR 18 (1937) Lah. 658 = AIR 1938 Lah. 200 Muhammad Din v. R.

When statement of Magistrate recording confession is not challenged, it is not possible to presume that the Magistrate did not record the confession of the accused without complying with the requirements of law u/S. 164(e) Cr.P.C. Inference would be that the statement was made voluntarily. (DB) PLJ 1998 Cr.C. (Q) 879, Abdul Ghani.

Certificate. Where the required certificate was not appended but Magistrate deposed that he had satisfied himself about the voluntariness of the confession and gone through formalities the confession was held admissible. (DB) ILR 1921 (2) Lah. 129 Umar Din v. Crown.

Recording Magistrate's evidence before committing Magistrate transferred to sessions record was excluded from consideration as not having fulfilled the requirements of section 33, Evidence Act. (Why Magistrate's presence in the trial Court was not possible not proved). No other evidence to prove confession. Confession. held, inadmissible, (FC) PLD 1952 FC 63 Amin-ul-Haq v. The Crown.

Record after Court hours. Confession recorded after Court hours in contravention of Criminal circulars. Such confession held not reliable. (DB) 1975 P.Cr. LJ 1077 Abdul etc.

Record after Court hours. Confession recorded after Court hours in contravention of Criminal circulars. Such confession held not reliable. (DB) 1975 P.Cr. LJ 1077 Abdul etc

Confession recorded on the 3rd day of the arrest of the accused, must be ruled out of consideration. The delay of over 24 hours would normally be fatal to the acceptance of a judicial confession. (DB) 1975 P.Cr. LJ 440 Tooh. PLJ 1975 Cr.C (Kar.) 508 (DB) PLJ 1977 Kar. 420 Abdul Majid. Overruled by (FB) PLD 1978 Quetta. 1. Shaukat Saeed. PLJ 1978 Cr.C. (Q) 160 PLJ 1978 SC 21 Naqibullah.

Confession during illegal confinement of the accused recorded, held, stands vitiated and has no legal value. (D.B.) PLJ 1996 Cr.C. (Pesh.) 1839, State v. Mst. Zohra Bibi and another.

Police custody for 5 days. Accused remained in Police custody for 5 days before making a judicial confession. This fact alone cannot lead to the presumption that the confession was due to inducement, threat or promise. (DB) PLD 1976 Pesh. 135 Muhammad Karim PLJ 1976 Pesh. 84.

Confession after police custody. Accused remaining in police custody for some time does not affect their judicial confession. PLD 1972 SC 363. Syed Sharif-ud-Din Pirzada v. Sobat Khan.

Delayed confession: Confession recorded after a delay of one month in Police custody considered suspicious and not relied upon. 1981 SCMR 597. Khan Muhammad etc.

Delay in recording judicial confession per se is no ground to discard it unless it is improved or emerges from the circumstances to have been obtained by coercion, threat, pressure etc. 1995 SCMR 1615. Muhammad Ismail.

Delay in recording confession not explained, held, no evidentiary value can be attached to such confession. (DB) PLD 1977 Kar. 760 Abdul Majid.

Delay per se in judicial confession is not ground to discard it unless it is proved that it was obtained by coercion, threat or pressure. Details given by appellant establish that it was true and voluntary. The confession can be used against the confessor and as circumstantial evidence against the co-accused. Death sentence maintained in triple murder case. PLJ 1996 S.C. 805, Muhammad Ismail etc.

Delayed recording of confession. No satisfactory explanation for delaying the recording of confession for two weeks, confession not relied upon. PLD 1977 Pesh. 64 Said Anwar.

Delay in recording confession remaining unexplained and if exhibiting an unconscionable state of affairs can be fatal to retracted confession. Conviction cannot be based on retracted confession alone. Such confession must be corroborated by other evidence showing that the crime must have been committed by the accused. PLJ 1999 SC 264 Abdul Latif.

Judicial confession doubtful when the accused not produced before magistrate immediately after arrest nor necessary questions put to him before recording confession. PLJ 1987 FSC 31. Liaqat Bahadar.

Judicial confession made after 5 days of arrest, and the accused not told that he would not be sent back to the police custody. Confession not relied upon. (DB) PLJ  1987 Quetta. 96. Azeem Shah.

Delay in recording confession is not fatal, when Court is satisfied that the confession is voluntary. PLJ 1985 Cr.C. (Q) 357. Kadir Bakhsh.

Judicial confession made 10 days after arrest and no reliable corroborative evidence found. Appellant acquitted. (DB) PLJ 1981 Cr.C. 162 Rajab.

24 hours delay in recording judicial confession without explanation, such confession to be ruled out of consideration. (DB) PLJ 1986 Cr.C. (Q) 271 Wali Muhammad.

Judicial confession made 7 days after being in police custody. Magistrate did not take necessary precautions to remove appellant from police influence. Confession retracted at the earliest, held, no reliance could be placed on such confession. PLJ 1993 Cr.C. (Kar.) 386, Syed Ali Shah.

Confession made after 16, 10 and 6 days after before a Magistrate not relied upon. PLJ 1994 FSC 56, Bijar etc.

Judicial confession recorded 10 days, after arrest ruled out of consideration. (DB) 1980 P.Cr.LJ State v. Ishaq.

Detention in Police custody. The Magistrate recording the statement regarding a confession should ask. "How long has the accused been in police custody?" The precaution is very wise and salutary but failure to do so is not an irregularity invalidating the confession. (DB) AIR 1931 Lah. 763 Abdul Ghani v. Rex.

The confessing accused must invariably be sent to the judicial lock-up and on no account to be returned to police custody. (DB) AIR 1938 Lah. 292 Surat v. R. AIR 1937 Lah. 98 Jahanan v. R.

Judicial confession not relied on when at variance with account given in extra-judicial confession and Magistrate not telling the accused that the would not be sent to police custody, before recording the confession. (DB) 1975 P.Cr.LJ 70 State v. Haji Khan.

Some irregularities in recording of confession to be overlooked in order to judge the evidentiary value of a retracted confession when the same appears to have been voluntarily made, without any inducement, duress or coercion with the object to state the truth. 1992 SCMR 1988, Ch. Muhammad Yaqub etc.

Custody does not necessarily mean custody after formal arrest, but includes a state of affairs in which the accused can be said to have come into the hands of a Police Officer or have been under some form of police surveillance or restriction on his movements by the Police. (Section 26 and 27, Evidence Act). AIR 1932 Lah. 609 Grudial v. R. AIR 1937 Lah. 629 Allah Ditta v. R. AIR 1940 Lah. 242.

Police Custody. Mere fact that the person making confession remains in Police Custody for some time does not lead to conclusion that the confession was tutored. Judicial confession relied on. (SC) PLD 1972 SC 363 Sharif-ud-Din v. Sohbat Khan.

Mere fact that the person making the judicial confession was remanded back to police custody does not make the confession involuntary. (SC) 1969 SCMR 421 Muhammad Sharif.

Accused remained for a fortnight in police custody before making confession. Confession held not voluntary. (DB) PLD 1960 Kar. 769 Haji Yar Muhammad v. Rahim Dino etc. PLD 1978 Pesh. 38 Asfandyar Wali.

Accused in custody of police for 8 or 14 days before making confession. Magistrate not questioning accused as to how long they have been in police custody nor informing them that they would not be sent back into police custody after confession. Text of confession disclosing that accused had been turtored. Confession not voluntary or reliable. (DB) PLD 1960 Kar. 797 Akhtari Begum.

Remand to police custody. False statement indicating same to be tutored appearing in confession and person making the confession handed back to the police. Confession held to be irrelevant.(SC) 1969 SCMR 390 1969 P.Cr.LJ 958 Khuda Bakhsh v. Crown.

Confessor delivered back to police custody after recording his judicial confession. Voluntarily nature of confession. vitiated. PLD 1960 Kar. 674 Wazir etc. (DB) PLJ 1977 BJ 22 Ghulam Rasul.

Handcuffs not removed and also Police not excluded from the Court-room before recording the confession. Held, confessions of no evidentiary value. (DB) PLD 1959 Lah. 541 Subey Khan.

Accused in Police custody before and after recording confession for 24 hours but before Magistrate recording confession for only one hour. Held confession not voluntary. (DB) PLD 1960 Kar. 160 Hashim.

Judicial Confession not relied upon when accused kept in illegal police custody for 6 weeks before confession was recorded. 1982 SCMR 321. State v. Asfandyar Wali etc.

Confessing accused detained by Police for more than 24 hours without warrant. Voluntariness of confession doubted. (DB) PLD 1960 Kar. 817 Hamzo.

No formalities under sections 164 and 364, Cr.P.C. observed but when the Magistrate examined subsequently as a witness the illegality was cured under section 53, Cr.P.C. PLD 1950 Bal. 1 Chandar v. Crown.

Provision under sections 164 and 364, Cr.P.C. and High Court Lahore. Rules and Orders Chapter XIII, Volume III disregarded Punjab Government Circular No. 6091-J-36/39829 (H. Judicial) dated 19th December, 1936. Directions not complied with. Held confession not duly made and therefore, inadmissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it. Irregularities in recording a confession can be cured under section 533, Cr.P.C. but it is only when the Court is satisfied that the confession had been made duly although it was not recorded duly. In other words the matter is one of the substance and not merely that of form. (DB) PLD 1950 Lah. 68 Bakhat Bano v. Crown.

Presumption when statement recorded under section 164, Cr.P.C. It is true that when a witness has made a statement under section 164, Cr.P.C. he is wedded to it. The Court should scrutinise the evidence of such witness carefully. Where, however, there are good grounds for getting statement under section 164, Cr.P.C. recorded no adverse presumption arises against the prosecution simply because it has done something lawful. (DB) PLD 1954 Lah. 646. Mian Khan v. Crown. (DB) PLD 1955 Lah. 271 Crown. v. Mirza Khan.

Extra Judicial Confession is a weak type of evidence. 

It requires 3-fold proof for making it basis of conviction as it can easily be procured when there is no direct evidence: 

 Firstly that the confession was made; 

     (2) that the confession was voluntarily made;

     (3) that it was truly made. 1996 SCMR 188, Sarfaraz Khan=PLS 1996 SC 467.

Extra Judicial confession is a weak type of evidence which can easily be procured. In this case the accused were not known to the witness before extra judicial confession was made. Extra Judicial confession not relied upon. PLJ 1996 S.C. 9, Sarfaraz Khan.

Extra Judicial Confession without cogent corroboration is not enough to bring case within prohibitory clause for concession of bail. Bail allowed for offence u/Ss. 392, 324, 353, 186, 109 PPC and sec 13 and 13A of Arms Ordinance, 1965. Abscondance not treated as corroborated piece of evidence. Bail plea had been rejected by Special Court No. VI at Multan. Bail allowed u/S. 497/498 Cr.P.C. (D.B) PLJ 1996 Cr.C. (Lah.) 91, Ahmed Jamal.

Accomplice/Approver

      

   .            Accomplice/Approver.

In absentia of any definition by QSO, 1984 …or …CrPc, it has been used many times but not defined explicitly. 

1-Dictionary Parlance. 

   An accomplice is one who is associated, in any mode whatsoever, with another especially in  any wrongful act.

      The Federal Shariat Court, in its judgment titled Haider Hussain vs. Govt. of Pakistan, interprets the word accomplice in the following words:

     “An accomplice is a co-accused, an associate or partner who has such relation to the criminal act that he [or she] can be jointly charged with the other accused.”

    2-Relevent Law:-    

        QSO 1984. Article 16 &129 illustration(b) .

         S. 337 CrPc. Tender of Pardon.

3). Categories /Kinds of Accomplice.

      i) Principle Offender.

        A) Who actually commits the crime.

      B) A person who abets or aids the commission of crime

     ii) Accessories Before the Crime.

A provides facilities or gives financial aid to commit the crime.

     iii)  Accessories after the crime / Crime.

 Who  protect or comfort the person who committed the crime in any mode .

iii)  Accessories after the crime.

who actually commits the crime, while principal offender of second degree is a person who abets or aids the commission of crime.

 

 

 

Credibility.

 An Accomplice is also known as guilty associate or an approver (in urdu SULTANI GAWAH). An accomplice is a co-accused until he is granted pardon then his position turns to be an approver.

An Accomplice  is unworthy of credit and is an unreliable person who betrayed co-accused fellows.So deserves to be punished with the other accused persons.

Why his Statement is Admissible.

To extract solid evidence against the greater offenders, the evidence of an accomplice is admissible,therefore, tendered a pardon under section 337 of the CrPC 1898 because the culprit gives evidence under a promise of pardon to disclose all details against other co accused.

Articles 16 and 129, illustration(b) of QSO ,

 Paradoxical or not?

Article 16.

*  An accomplice shall be a competent witness.       (Article 16 QSO)

* “An accomplice shall be a competent witness against an accused person, except

* In the case of an offence punishable with hadd;

* a conviction is not illegal merely pivoting  uncorroborated testimony of an accomplice.”

 

  *    No credibility.  illustration(b) of Article 129.

“An accomplice is unworthy of credit, unless he is corroborated in material particulars.”

*Statement of the accomplice is not exculpatory.

A.16 QSO and A,129,Not Paradoxical.

Art.16 QSO is germane to the rule of law whilst the Art.129 ills(b) is  the rule of prudence. Therefore,  both are supplementary to each other.

Harmonize the two provisions.

       “In such a case of apparent conflict, the court is required to place such construction which may harmonize the two provisions.”

      Rule of construction, an accomplice is a competent witness and conviction may lawfully rest upon the uncorroborated testimony.

  The court is entitled to presume that no reliance can be placed on the evidence of an accomplice, unless that evidence is corroborated in material particulars.

* Reason behind the corroboration is that the accomplice is likely to swear falsely in order to shift guilt to others.

 Test (AIR 1957 SC 673),  Rule of a double-test was introduced. As per this rule, the accomplice’s evidence must show that he or she is a reliable witness and his or her evidence must receive sufficient corroboration.

Tendering pardon to an accomplice. (Section 337 CrPc) provides procedure

1-pardon is tendered to an accomplice by the prosecution .

2-Producing before the magistrate during investigation (pre-trial), inquiry or trial stage.

3-  In cases of hurt or Qatl, the victim or heirs of victim shall give consent for tendering such pardon by the Prosecution.

4-The Magistrate  records his statement. At this eve the accused is required to give full and true disclosure of all the circumstances of the incident within his knowledge so as to reach the real culprits of the offence.

5-If An accomplice is in custody, he shall remain in custody till finalization of the trial. Where the accomplice is on bail he shall continue to be on bail.

Powers of Appellate Courts.

        (Section 338 CrPc) 

The High Court or Court of Sessions at any time before judgment passed during trial may tender pardon to an accomplice or order the prosecution to tender pardon to an accomplice on the same conditions as provided in section 337 of the Code read with section 16 and 129 of the Qanoon-e-Shahadat Order, 1984.

CONCLUSION.   An accomplice is a competent witness in tazir offences, but cannot be granted pardon in hadd offences.

Ref:-PLD 2020  SC  456.1969 SCMR 907.PLJ 1989 Cr.C. (Lah.) 397.                (SC) 1969 P.Cr.L.J. 1209