Supplementary Statement

 

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

               2024LHC2299

 Case No. Crl.Misc.No.27821-H/24

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

                  13.05.2024 

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

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

 Kh. Salman Rafiq.PLD 2020 SC 456

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Disposed off.        (Asjad Javaid Ghural) 

                                    Judge 

 Approved for Reporting  

             Judge 

 Azam*               

 

Second Bail Petition

             

            Second Bail Petition

                PLD 2021 SC 892

Maintainability of the second pre-arrest bail petition after withdrawal of the first pre-arrest bail petition without satisfactory explanation for withdrawing the earlier pre-arrest bail petition.Filing a pre-arrest bail petition, enjoying the concession of ad interim bail granted therein and then simply withdrawing the petition in order to file another one after sometime and availing the same benefit of ad interim bail once again, in the absence of any lawful explanation or justification, is a sheer abuse of the process of the court. While  the  accused  can  approach  the  same  court  with  a  fresh  pre-arrest bail  petition  if  the  earlier  one  has  been  withdrawn  without  advancing arguments  on  merits,  the  court  must  be  watchful  that  the  successive petition  is  not  readily  entertained  or  the  concession  of  ad  interim  bail   granted  to  the  accused,  unless  he  furnishes  satisfactory  explanation  for withdrawal  of  the  first  petition  and  filing of  the  second  one;  otherwise,  an unscrupulous  accused  can  abuse  the  process  of  court  for  ulterior purposes.  Therefore,  the  accused  must  be  required  by  the  court  to furnish  satisfactory  explanation  for  withdrawing  the  first  pre-arrest  bail petition  at  the  time  of  entertaining  the  second  pre-arrest  bail  petition. Unless  there  is  satisfactory  explanation,  the  second  bail  petition  should not  be  entertained,  because  otherwise  the  accused  would  have  an unchecked  license  to  abuse  the  concession  of  ad  interim  pre-arrest  bail by  misusing  the  court-process,  and  hoodwink  the  Police  to  prolong  the investigation.  Therefore,  while  the  accused  has  access  to  courts  to  seek pre-arrest  bail,  even  successively  for  justifiable  reasons,  he  cannot  be permitted  to  abuse  the  concession  of  ad  interim  bail  to  stall  the investigation  and  play  hide  and  seek  with  the  criminal  justice  system.  In case  the  accused  fails  to  give  satisfactory  explanation  for  his  withdrawal of  the  earlier  pre-arrest  bail  petition  and  the  need  for  filing  the  fresh  one, his  second  or  successive  pre-arrest  bail  petition  shall  not  be maintainable.   Bail Before Arrest.

Stay of Civil Case.

PLJ 2023 SC 481

       [Appellate Jurisdiction]

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

   SALMAN ASHRAF--Petitioner

                     versus

DDITIONAL DISTRICT JUDGE, LAHORE, etc.--Respondents

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

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

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

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

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

     Administration of justice

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

       [Pp. 484 & 485] E

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

Administration of justice

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

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

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

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

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

     Administration of justice---

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

          991 SCMR 2126 ref.

Mr. Hafeez Saeed Akhtar, ASC for Petitioner.

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

Dates of hearing: 25 and 26.5.2023.

Order

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(K.Q.B.)          Petition dismissed

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

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

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

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

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

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

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

[8].       PLD 1990 SC 28.

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

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

Fasad-fil-Arz

                     No Bail

                  Fasad-fil-Arz

                      2024 LHC 3700

     An offence committed in the name or on the pretext of honour was excluded from the definition of ‘qatl-i-amd’ as contained in Section 302 Clause (c) of PPC, as the phrase “in the name or on the pretext of honour” inserted in the first proviso to Section 302(c) of PPC clearly indicates that the murder (naeem)committed in the name or on the pretext of honour had to be calculated as a murder committed with premeditation in the background of honour. 

    As per provisions of sub-section (7) to Section 345 of Cr.PC, no offence shall be waived or compounded save as provided by this Section and section 311 of PPC. Another significant amendment has been introduced by amending section 299 of PPC and introducing clause (ee) through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, whereby an offence that has been committed in the name or on the pretext of honour has been categorized as an offence falling (naeem)within the meaning of ‘fasad-fil-arz’. As per provisions of section 311 of PPC, if the principle of  fasad-fil-arz is attracted, the court may having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment  of life or imprisonment of either description for a term of which may extend to fourteen years as ta’zir. The sole proviso to this section further provides that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life. 

In view of the amendments as made in sections 299(ee), section 302(c) and section 311 PPC read with proviso to section 345(2-A) and 345 (7) of Cr.PC, a convict in an honour killing case, still can face sentence of imprisonment for life even if legal heirs of a victim have settled the matter by way of compromise and pardoned the convict. Therefore, the accused/petitioner is not entitled to be released (naeem)on bail on the basis of any statement made by the legal heirs of the deceased whereby they have compounded the offence as in view of provisions of Sections 345(2-A) & 345(7) of the Cr.P.C., no offence shall be waived or compounded save as provided by the provisions of section 311 PPC.  

                                             Bail refused.

Crl. Misc.47663/24

Bilal Sikandar Vs The State etc. 

Mr. Justice Shakil Ahmad 

21-08-2024        2024 LHC 3700

Full judgment

              Form No: HCJD/C-121 

ORDER SHEET 

IN THE LAHORE HIGH COURT LAHORE 

           (JUDICIAL DEPARTMENT) 

 

Case No. Crl. Misc. No. 47663-B of 2024 

 

  Bilal Sikandar Versus  The State and another 

Sr. No. of order/ Proceedings Date of order/ Proceedings Order with signatures of Judge, and that of parties or counsel, where necessary. 

   

21.08.2024 Mr. Mushtaq Ahmad Mohal, Advocate for the petitioner. 

Miss Rashida Parveen, Assistant District Public Prosecutor with Junaid, SI. 

  

  After dismissal of his post-arrest bail petition by learned Additional Sessions Judge, Sargodha, vide order dated 07.03.2024, Bilal Sikandar, accused/petitioner has filed instant petition under section 497 of the Code of Criminal Procedure, 1898 (Cr.P.C.) seeking post-arrest bail in case F.I.R. No.99 of 2024 dated 02.02.2024 registered at Police Station Bhagtanwala District Sargodha for the offences under sections 302, 311 of the Pakistan Penal Code, 1860 (PPC).  

2. Allegation, in a nutshell, against the 

accused/petitioner is that he, by exhorting that Ramsha  (his sister) has brought dishonour to them and he would not leave her alive, made a straight fire shot hitting on the back of Ramsha, who succumbed to the injury at the spot.   

3. Heard. Record perused. 

4. Instant is a case in which Ramsha (aged about 21/22 years) lost her life in the consequence of a fire shot injury alleged to have been made on her by none other than her real brother, on account of ‘ghairat’. The occurrence that took place on 02.02.2024 at 12:30 PM was claimed to have been witnessed by Muhammad Junaid Ahmed, T/SI and the constables who, during the course of patrolling, when reached near the house of deceased, rushed inside the house on hearing an uproar coming inside the house. According to them, accused/petitioner who was armed with 12-bore single barrel, made straight fire shot hitting on the person of Ramsha who fell down and succumbed to the injury at the spot. Strangely enough, none of the inmates, including the parents of the deceased, opted to become the complainant qua the incidence in which their own daughter was done to death, and even they did not give their account regarding the murder of the deceased immediately, just after the occurrence that how and under which circumstances Ramsha became injured and lost her life. Occurrence has been shown to be witnessed by the independent persons belonging to the police department who, ex facie, have no ill-will or any sort of grudge to falsely involve the accused/petitioner with the commission of murder of his own sister. Even, the accused/petitioner remained fugitive from law for the period of around 5 months and when finally rounded up, got recovered the firearm. The investigator also collected a crime empty from the spot and the same was sent to the office of PFSA. The firearm recovered from the accused/petitioner has also been dispatched to the concerned quarter for analysis. The police/investigator seemed to have collected sufficient evidence/material linking the accused/petitioner with the commission of alleged crime. 

5. Issue of honour killing had been noticed by courts with grave concern and in case “Muhammad Akram Khan v. The State” (PLD 2001 SC 96), while answering stance taken by defence that accused committed offence under the impulse of ‘ghairat’, the Supreme Court of 

Pakistan observed as under: - 

“Legally and morally speaking, nobody has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of “Ghairat”. Neither the law of the land nor religion permits so-called honour killing which amounts to murder (Qatli-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution. In this case, the plea of “Ghairat” cannot be deemed to be a mitigating circumstance as the motive was not directly against the deceased.”  

In case “Umer Din v. The State and others” (2017 YLR Note 378 [Lahore]), while dealing with the case of  post-arrest bail of an accused relating to honour killing, this Court observed as under: - 

“8. It is important to observe that in our society granting post-arrest bails in ‘honor killing’ i.e. a violence against women will substantially increase such incidents, which in most of the cases is for gain of the property, demanding the hand of a woman of choice, settling the old scores and personal vendetta. Certainly, if such like act as committed by the petitioner is approved, it would lead to an anarchic situation in the society and lynching of women would become order of the day.” 

 

In case “Khadim Hussain and another v. The State” (PLD 2012 Baluchistan 179), while dealing with the same moot point it was observed as under: - 

“I have noticed in a number of cases that the killing of innocent wife, sister and other female relatives, on the allegation of 'siyahkari' has become a routine practice, rather a fashion, and it is a high time to discourage such kind of unwarranted and shocking practice, resulting in double murder in the name of so-called honour killing. I am not impressed by the contention of learned counsel for the applicants that according to the prosecution's own showing, the occurrence is the result of 'siyahkari', as such the applicants were liable to be enlarged on bail. It is true that people do not swallow such kind of insult, touching the honour of their womenfolk and usually commit murder of alleged 'siyahkar' in order to vindicate and rehabilitate the family honour, but it is equally true that no one can be granted licence to take law of the land in his own hands and start executing the culprits himself instead of taking them to the 

Courts of law. The murder based on 

`Ghairat' does not furnish a valid ground for bail. Killing of innocent people, especially women on the pretext of 'siyahkari', is absolutely un-Islamic, illegal and unconstitutional. It is worth mentioning that the believers of Islam are not even allowed to divorce them, without establishing their accusation. We profess our love for Islam, but ignore clear Qur'anic Injunctions regarding the rights of women. The Holy Qur'an in Sura XXIV in Sura (NUUR) 

Verses 4 says: 

   

"And those who launch a charge against chaste women and produce not four witnesses, (To support their allegation),--- Flog them with eight stripes; and reject their evidence even after: for such men are wicked transgressors;---" 

In this regard, it would also be advantageous to reproduce Hadith 837 Book 48 (Sahih Bukhari), which speaks as under:-- 

"Narrated Ibn Abbas: Hilal bin Umaiya accused his wife before the Prophet of committing illegal sexual intercourse with Sharik bin Sahma. The Prophet said, "Produce a proof or else you would get the legal punishment (by being lashed) on your back" Hilal Said, "O Allah's Apostle! If any one of us saw another man over his wife, would he go to search for a proof" The Prophet went on saying, "Produce a proof or else you would get the legal punishment (by being lashed) on your back " The Prophet then mentioned the narration of Lian (as in the Holy Book). (Surat-al-Nur.. 

24)," 

 

Being conscious of the fact that it had become an ignominious practice in the society, particularly after promulgation of Qisas and Diyat Ordinance, 2000, that after doing away with females, either she may be a wife, mother, daughter, or sister on the pretext of honour, real perpetrators were usually being let off after getting pardon from wali/walis, the legislature introduced certain amendments through the Criminal Law (Amendment) Act, 2004 (Act I of 2005), whereby the definition of an offence committed in the name or on the pretext of the honour was introduced. Similarly, clause (c) to section 302 of PPC was also amended and substituted through the Criminal Law (Amendment) (Offences in the Name or on 

Pretext of Honour) Act, 2016 as under: - 

3.     Amendment of section 302, Act XLV of 1860.—In the Penal Code, in section 302, in clause (c), for the full stop at the end, a colon shall be substituted and thereafter the following proviso shall be added, namely: 

“Provided that nothing in this clause apply to the offence of Qatl-i-Amd if committed in the name or on the pretext of honour and the same shall fall within the ambit of clause (a) or clause (b), as the case may be.” 

 

In view of the above hinted amendment, an offence committed in the name or on the pretext of honour was excluded from the definition of ‘qatl-i-amd’ as contained in Section 302 Clause (c) of PPC, as the phrase “in the name or on the pretext of honour” inserted in the first proviso to Section 302(c) of PPC clearly indicates that the murder committed in the name or on the pretext of honour had to be calculated as a murder committed with premeditation in the background of honour. Reliance in this regard may safely be placed on the case reported as “Muhammad Qasim v. The State” (PLD 2018 SC 840). 

Similarly, certain amendments were also made in Section 345 of Cr.P.C., introducing sub-section 2-A, and the same reads as under:- 

“(2-A) Where an offence under Chapter XVI of the Pakistan Penal Code, 1860 (Act XLV of 1860), has been committed in the name or on the pretext of karo kari, siyah kari or similar other customs or practices, such offence may be waived or compound subject to such conditions as the Court may deem fit to impose with the consent of the parties having regard to the facts and circumstances of the 

case.”   

 

Similarly, as per provisions of sub-section (7) to Section 345 of Cr.PC, no offence shall be waived or compounded save as provided by this Section and section 311 of PPC. Another significant amendment has been introduced by amending section 299 of PPC and introducing clause (ee) through the Criminal Law (Amendment) (Offences in the Name or on Pretext of Honour) Act, 2016, whereby an offence that has been committed in the name or on the pretext of honour has been categorized as an offence falling within the meaning of ‘fasad-fil-arz’. As per provisions of section 311 of PPC, if the principle of  fasad-fil-arz is attracted, the court may having regard to the facts and circumstances of the case, punish an offender against whom the right of qisas has been waived or compounded with death or imprisonment  of life or imprisonment of either description for a term of which may extend to fourteen years as ta’zir. The sole proviso to this section further provides that if the offence has been committed in the name or on the pretext of honour, the punishment shall be imprisonment for life. 

6. Submission made by learned counsel for petitioner that legal heirs of deceased who happened to be the parents of deceased, have forgiven the accused/petitioner and recorded their statements qua compounding the offence, therefore, accused/petitioner is entitled to be released on bail on the basis of compromise, is of little avail as in view of the amendments as made in sections 299(ee), section 302(c) and section 311 PPC read with proviso to section 345(2-A) and 345 (7) of Cr.PC, a convict in an honour killing case, still can face sentence of imprisonment for life even if legal heirs of a victim have settled the matter by way of compromise and pardoned the convict. Therefore, the accused/petitioner is not entitled to be released on bail on the basis of any statement made by the legal heirs of the deceased whereby they have compounded the offence as in view of provisions of Sections 345(2-A) & 345(7) of the Cr.P.C., no offence shall be waived or compounded save as provided by the provisions of section 311 PPC.  

7. The next submission of learned counsel for the petitioner is that there exists a glaring conflict between the ocular account and medical evidence; therefore, the case of the petitioner necessitates further inquiry entitling him to the grant of post arrest bail. According to him, as per witnesses of ocular account, the fire shot made by the accused/petitioner landed on the back of the deceased whereas as per postmortem report, the injury present on the back of the deceased has been shown as an everted wound, suggesting that it was an exit wound. This argument hardly holds any water for the simple reason that the sole argument qua conflict between medial evidence and ocular account can hardly be appreciated without deeper appreciation of evidence which exercise is not warranted at bail stage  particularly keeping in view the peculiar facts and circumstances of the instant case wherein accused/petitioner alone is named in the FIR with specific role of making fire shot on the person of none other than his real sister and he thereafter remained fugitive from law for the period of around 5 months and when rounded up got recovered firearm that was also sent to the concerned quarters for its matching with the crime empty secured by the investigator from the spot that had already been sent to the concerned quarters much prior to the recovery of firearm from the petitioner and last but not the least, accused/petitioner upon conclusion of investigation has been found involved in the commission of alleged crime. There is no cavil with the proposition that a case of further inquiry presupposes a tentative assessment of the material brought on record starting from the time of lodging of the FIR and the material collected during the course of investigation till the conclusion of the investigation, which in turn creates some doubt with respect to the involvement of an accused in the commission of crime, whereas the expression ‘reasonable grounds’ refers to grounds that may be legally tenable, admissible in evidence and appealing to a reasonable judicial mind as opposed to being whimsical, arbitrary, or presumptive. In case “Ata-ullah v. The State” (2014 SCMR 1210), the Supreme Court of Pakistan observed that for all intents and purposes the doctrine of further inquiry demonstrates notional and exploratory assessment that may create doubt regarding involvement of an accused in the commission of crime. Even in case “Mst. 

Parveen Akhtar v. The State and others” (2002 SCMR 1886), it was observed that mere possibility of further inquiry which existed almost in every criminal case was not a ground for treating the matter as one of further inquiry falling within the purview of section 497(2) of Cr.PC. In the instant case, however, upon tentative assessment of the material available with the prosecution, this Court is convinced that reasonable grounds exist for believing that the accused/petitioner has committed a nonbailable offence falling within the ambit of the prohibitory clause as contained in Section 497 of Cr.PC, inasmuch as overwhelming evidence is available on the record to connect the accused/petitioner with the commission of the alleged crime. No case of post-arrest bail at all is made out. Petition is dismissed. 

8. Needless to observe that observations made hereinabove are tentative in nature and shall be considered to have been made only to the extent of the decision of instant bail petition and shall not in any manner influence the trial court while deciding the main case. The learned trial court is directed to proceed to decide the main case expeditiously, preferably within a period of four months, from the receipt of certified copy of this Order. Office is directed to transmit a copy of this Order to learned trial court, forthwith.    The research assistance provided by  

Mr. Muhammad Afzil, Civil Judge/Research Officer, Research Center, Lahore High Court is appreciated.    

 

                     (Shakil Ahmad)                                                  Judge 

  Approved for reporting 

                 

 

Narcotics Bail

             Use of Modern devices

PLJ 2024 SC (Cr.C.) 8

We are aware that section 25 of the Act excludes the applicability of section 103 of the Code of Criminal Procedure, 1898 which requires two or more respectable inhabitants of the locality to be associated when search is made. However, we fail to understand why the police and members of the Anti-Narcotics Force (‘ANF’) do not record or photograph when search, seizure and/or arrest is made. Article 164 of the Qanun-e-Shahadat, 1984 specifically permits the use of any evidence that may have become available because of modern devices or techniques, and its Article 165 overrides all other laws. 

6. In narcotic cases the prosecution witnesses usually are ANF personnel or policemen who surely would have a cell phone with an in-built camera. In respect of those arrested with narcotic substances generally there are only a few witnesses, and most, if not all, are government servants. However, trials are unnecessarily delayed, and resultantly the accused seek bail first in the trial court which if not granted to them is then filed in the High Court and there too if it is declined, petitions seeking bail are then filed in this Court. If the police and ANF were to use their mobile phone cameras to record and/or take photographs of the search, seizure and arrest, it would be useful evidence to establish the presence of the accused at the crime scene, the possession by the accused of the narcotic substances, the search and its seizure. It may also prevent false allegations being levelled against ANF/police that the narcotic substance was foisted upon them for some ulterior motives.  

 7. Those selling narcotic substances make their buyers addicts, destroy their state of mind, health and productivity, and adversely affect the lives of their family members. The very fabric of society is damaged. ANF and the Police forces are paid out of the public exchequer. It is incumbent upon them to stem this societal ill. The Prosecution services, paid out of the public exchequer, is also not advising the ANF/police to be do this simple act of making a recording and/or taking photographs as stated above.  

8. A consequence of poor investigation, not supported by evidence adversely affects the cases of the prosecution. The courts, which too are sustained by the public exchequer, are burdened with having to attend bail applications because the commencement and conclusion of the trial is delayed. It is time that all institutions act professionally and use all available lawful means to obtain evidence. A credible prosecution and adjudication process also improves public perception. We expect that all concerned will attend to these matters with the attention that they demand, because the menace of narcotic substances in society has far reaching consequences: by destroying entire households, creating societal problems and casting a heavy financial burden on the State when drug addicts are required to be treated. Moreover, research indicates that drugs addicts resort to all methods to obtain drugs, including committing crimes. 

9. Copy of this order be sent to the Secretary Ministry of Narcotics Control, Government of Pakistan, Director-General, Anti-Narcotics Force, the Secretaries of the Home Departments of all the provinces, InspectorGenerals of Police of all the provinces and of the Islamabad Capital Territory. They may also consider whether they want to amend the ANF/Police rules to ensure making video recordings/taking photographs whenever possible with regard to capturing, preserving and using such evidence at trial.

motive

                           Motive

Motive

                          2024 SCMR 1421         

    Mitigating circumstances ---

*  Recovery of weapon of offence disbelieved *  Absence of motive Single stab motive - Single wound Appellate Court / High Court had ( rightly ) disbelieved the recovery of Churri ( knife ) on the pointation of the petitioner / convict from an open place --- Furthermore , absence of motive in the FIR , non - proving of the motive introduced by the prosecution witnesses at the trial about the desire of the petitioner / convict to marry the deceased prior to her marriage with a prosecution witness , and single stab wound on the abdomen of deceased had rightly been considered as mitigating circumstances by the High Court to award lessor sentence of imprisonment for life to the petitioner --- Petition was dismissed , leave to appeal was refused , and conviction and sentence of imprisonment for life awarded to the accused by the High Court was maintained .

Powers of Courts

 

      

             Powers of Courts in Pakistan 

Jurisdiction & Powers of Courts in Pakistan.            

               SUPREME COURT 

 1. 184(1) Original jurisdiction in inter-governmental disputes, issues declaratory judgments;

 2. 184(3) Enforcement of Fundamental Rights involving an issue of public importance;

 3. Art 185(2) Appeal from judgment/order of High Court in criminal cases, tried in original and/or appellate capacity and having imposed death penalty or life imprisonment;

 4. Art 185(2) Appeal in civil cases when the value of claim exceeds fifty thousand rupees;

 5. Art 185(2) Appeal when High Court certifies that the case involves interpretation of the Constitution;

 6. Art 185(3) Appeal (subject to grant of leave) from High Court judgment/order;

 7. Art 186 Advisory jurisdiction on any question of law involving public importance referred by the President;

 8. Art 187 To issue directions/orders for doing complete justice in a pending case/matter;

 9. Art 188 To review any of its own judgment/order;

 10. Art 204 To punish for its contempt;

 11. Art 212 Appeal from Administrative courts/tribunals; and

 12. Art 203F Its Shariat Appellate Bench hears appeals from judgments/orders of Federal Shariat Court.

 

* FEDERAL SHARIAT COURT:

  1. Art 203-D  To determine whether a provision of law is repugnant to the Injunctions of Islam;

 2. Art 203 DD  Revisional Jurisdiction in cases under Hudood laws;

 3. Art 203 E  To review its judgment/order;

 4. Art 203 E  To punish for its contempt; and

 5. Under Hudood laws, hears appeals from judgment/order of criminal courts.

HIGH COURT:

 1. Art 199(1) to issue 5 writs namely mandamus, prohibition, certiorari, habeas corpus and quo warranto;

 2. Art 199(2) Enforcement of Fundamental Rights;

 3. Art 203: To supervise/control subordinate courts;

 4. Art 204: To punish for its contempt;

 5. To hear appeal under S.100 of CPC;

 6. To decide reference under S.100 of CPC;

 7. Power of review under S.114 of CPC;

 8. Power of revision under S.115 of CPC;

 9. Appeals under S.410 of Cr.P.C;

 10. Appeals against acquittal under S.411-A(2) of Cr.P.C

 11. Appeals against judgment/decree/order of tribunals under special laws;

 12. To issue directions of the nature of habeas corpus under S.491 of Cr.P.C;

13. Power of revision under S.439 Cr.P.C

 14. Hedge Inter-Court appeal at Lahore High Court and High Court of Sindh, 

 * DISTT. & SESSIONS JUDGE/ADDL. DISTT. & SESSIONS JUDGE

 1. Appeal against judgment/decree of a Civil Judge under S.96 of CPC;

 2. Appeal against order under S.104 of CPC;

 3. Power of revision under S.115 of CPC;

 4. Original jurisdiction in suits upon bills of exchange, hundies or promissory notes under Order XXXVII of CPC;

 5. Murder trial under S.265  of the Cr.P.C;

 6. Criminal trial under Hudood laws;

 7. Appeals under S.408 of Cr.P.C;

 8. Power of revision under S.439-A of Cr.P.C; 

 9. To issue directions of the nature of habeas corpus under S.491 of Cr.P.C; and

10. Decides pre-arrest bail applications under S 498 of the Cr. PC.

11. Being An  exofficio  Justice  of  the  Peace  may  issue  appropriate  directions  to  the  police  authorities concerened  on  a  complaint  regarding (i)  nonregistration  of  a  criminal  case; (ii)  transfer  of  investigation  from  one  police  officer  to  another;  and (iii)  neglect,  failure  or  excess  commited  by  a  police  authority  in  relation  to  its  functions  and  duties.

 * CIVIL JUDGE 1ST CLASS:

  1. To try all civil suits, there is no pecuniary limit on its jurisdiction;

 2. In certain jurisdictions also designated as Rent Controller;

 3. In certain jurisdictions also designated as Judge, Family Court;

 * CIVIL JUDGE 2ND CLASS:

 1. To try civil suit up to the value of Rs. 50,00,00/-  ( Rs. 5- Million) ; and

 2. In certain jurisdictions designated as Rent Controller/Judge, Family Court.

 * CIVIL JUDGE 3RD CLASS:

 To try civil suit up to the value of Rs. 10,00,000/- ( Rs. 1-Million)

 * Judicial MAGISTRATE 1ST CLASS:

 1-To try offences punishable up to 3 years imprisonment and forty-five  thousand rupees fine.

2- As Mobile Court under S. 12 Cr.P.C

3- As Judicial Magistrate under S 14 Cr.P.C As Area Magistrate to handle 

         i- Remands ,(Physical. Judicial. Transit) 

         ii- Discharge Reports etc

 * MAGISTRATE 2ND CLASS:

 To try offences punishable up to 1 year.

 * MAGISTRATE 3RD CLASS:

       Fifteen  thousand rupees fine

**Judicial Magistrate empowered under S.30 of Cr.P.C._

___To try All offences not punishable with death.

      But can't pass a sentence of death or imprisonment exceeding 7 years.

Third Party Interest

            Third Party Interest

                           PLD 2024 SC 600

 Inheritance cases where third party interest has been created in the property.

     Commencement of limitation period----

Burden of proof on claimant to prove that he was not aware of having been deprived of his inheritance share --- Principle stated . 

    Court while dealing with inheritance cases tread very cautiously to balance the proprietary rights of the legal heirs of the deceased Muslim owner and third party , who has acquired proprietary rights therein , and that too , in good faith and for valuable consideration . It is for this reason that , legal heirs must be vigilant and not indolent regarding their proprietary rights in their sharai share of inheritance . There is a stark distinction between cases in which an heir has been deprived of his sharai share and disregarded at the time of recording of the inheritance mutation , and those cases in which the heir comes forward to seek his sharai share after third-party rights in the subject land have been created . To succeed in respect of the former category of cases , as compared to the latter , is legally less cumbersome , as it is not hurdled by the rigors of limitations the possession over the inherited property by one heir is considered as constructive possession on behalf of all the heirs , and the cause of action would only arise , when the deprived heir seeks his share and the same is denied by the other in possession of the inherited property . However , to succeed in respect of the latter category of cases , where third-party interest is created in the inherited property , is legally more problematic , as the legal heir would then have to face the wrath of the period of limitation . The burden ofproof would rest on the claimant heir to demonstrate and prove that he was not aware of having been deprived , give cogent reasons for not challenging the long-standing property record , or showing complicity between the buyer and the seller (the ostensible owner) or that the buyer knew of his interest in the property and yet proceeded to acquire the same . It is when faced with such legal handicap that the claimant heir may seek exception to the bar of limitation provided under Section 18 of the Limitation Act , 1908 by establishing that he was kept oblivious to the cause of action or accrual of his rights through fraud , and therefore , was an " injuriously affected person . Thus , in cases , where the claimant heir , being an " injuriously affected person has a right to sue , does not institute the suit claiming his right within the prescribed limitation period , no fresh period of limitation can be available to him , his legal heir (s) or any other person who derives his right to sue from or through him (the injuriously affected person).

Correction of CNIC

 

                   PLD 2012 LAH 378

Ss. 9 & 5(3)---National Database and Registration Authority (NIC) Rules 2002, R.13---Constitution of Pakistan, Art. 199---Constitutional petition---correction on National Identity Card issued by NADRA---Petitioner had sought correction on his national identity card on the ground that the name of his father had been in correctly entered---NADRA (respondent) refused to make the necessary correction on the ground that for a change in the father's name; a court order was necessary---NADRA, to support such contention, relied on its Registration Policy and Standard Operating Procedures (SOPs)---Validity---Error was clearly a typographic mistake---National database was required to be maintain ed by NADRA, and every citizen was required to be registered and to effectuate such registration, every citizen was issued a national identity card---National Identity Card (cnic ) was a legal document for the identification of a citizen, and its issuance meant that the in formation contain ed therein was valid and correct---NADRA, by not correcting an error in its database or on the cnic , was, in fact, going against the spirit of the Ordinance, and was not performing its primary function and was perpetuating a wrong in its own database, thereby negating the purpose of the national identity card---NADRA, was bound to maintain a correct database and was bound to print correct in formation on the cnic and was obligated to correct any error in its database or the cnic it issued to a citizen---Standard Operating Procedures (SOPs) and Registration Policy were internal instructions to enable NADRA to achieve optimum level of efficiency and to ensure consistency and infirmity in its procedure and process---Standard Operating Procedures (SOPs) did not have the force of law and were not bin din g on the NADRA---Standard Operating Procedures were internal documents, at best, and could not form the basis of denying the petitioner the right to have the correct in formation maintain ed in the citizen database and printed on the cnic ---Standard Operating Procedures could not form the basis for NADRA to refuse to correct an error in its record because if the error was not corrected, it would negate the very purpose of issuing a cnic to a citizen---Delay in filing an application for correction of an office mistake could not hamper or prevent the process of actually correcting the NADRA database, or the cnic ---High Court directed NADRA to treat the pending request of the petitioner as a correction of an office mistake and to correct the petitioner's father's name in the database and issue him a new cnic ---Constitutional petition was allowed, accordingly.

Cause of Action

                       Cause of Action

                    Order 2 Rule 2 CPC

         

PLD 2023 Lahore 601

    There are three specific terms used in Order II Rule 2 which are required to be interpreted as these shall have bearing on a just decision of this case. These terms are cause of action, claim and relief. 

The expression cause of action has not been defined in the Code although several attempts have been made in the judgments to explain it. Various authorities have referred it to mean that every fact, which if traversed, it would be necessary for the plaintiff to prove to support his right to a judgment by of the court. This definition would generally suffice but it does not necessarily provide a satisfactory answer as to what is the cause of action. This Court shall not make an attempt to define the term cause of action in recognition of the fact that the scope thereof is vague and that it must be applied broadly to carry out the functions of the Code which are designed to achieve convenience and efficiency in trial of the suits. This policy of the Code is indubitably brought forth by Order II Rule 1 according to which all matters in dispute between the parties relating to the same transaction be disposed of in a single suit. Generally looking at the provisions of Orders I & II of the Code would make it evident that when the right recognized by law is violated constituting a legal wrong, a cause of action can be said to have arisen. A fortiori, it is the legally recognized wrong that creates the right to sue. It is axiomatic that facts which do not represent the existence of right in the plaintiff with a corresponding duty in defendant to observe that right and an infringement of that right or duty is no cause of action. In Stone v. Cass, 34 Okla. 5, 124 P. 960, the Court stated that “There can be no cause of action, unless there is a wrong for which redress is afforded. Nor can there be a subject of action, unless there is a right and a wrong done to it. The right might exist for ages, but is not a subject of action until it is infringed upon. The wrong might be continuous, but is not a cause of action, unless relief is afforded.” Cause of action thus comprises material facts (to borrow the term from the Code) constituting the right and its infringement which entitles a person to sue the wrongdoer or anyone liable for it. The logical progression of this rule dictates that a cause of action must include a set of primary or operative facts that represent a legally recognized wrong that creates the right to sue which gives rise to a claim enforceable in court. Each cause of action consists of points the plaintiff must prove, and all these elements must be satisfied before the court can take action. This broad categorization of the rule is in accord with the scheme of the Code.