Usman Law Firm

28/11/2023

سپریم کورٹ نے سرکاری افسران کے لیے "صاحب" کا لفظ استعمال کرنے پر پابندی لگادی۔

مردان میں 9 سال کے بچے کے قتل کیس کی سپریم کورٹ میں سماعت کے دوران ڈی ایس پی کے ساتھ "صاحب" کا لفظ استعمال کیا گیا، عدالت نے قرار دیا کہ صاحب کے لفظ کا استعمال کسی آزاد قوم کی عکاسی نہیں کرتا۔سرکاری ملازم صاحب کے لفظ سے خود کو احتساب سے بالاتصور کرتے ہیں۔
سپریم کورٹ نے فیصلے کی کاپی آئی جی، ایڈووکیٹ جنرل کے پی اور محکمہ داخلہ کے پی کو بھیجنے کا حکم دیا۔

Qazi Faez Isa, CJ.

1. Notice was issued on 25 October 2023 to the respondents. The complainant, father of the deceased, and learned Additional Advocate General, Khyber Pakhtunkhwa (‘AAG’) together with Islam Shah, Investigation Officer and Sikandar Shah, DSP Investigation, are in attendance. The learned AAG referred to the Deputy Superintendent of Police as ‘DSP sahib’. It is about time that the practice of adding the word sahib with one’s job title is discontinued, as it unnecessarily elevates the status of public servants, which may instil in them delusions of grandeur and a perception of unaccountability, which is unacceptable since it is against the interests of the public whom they are meant to serve.

2. Learned counsel for the petitioner states that it was reported to the police on 5 August 2022 that Hamza aged about 9/10 years was missing. On 8 August 2022 after the recovery of the body of Hamza the FIR was registered wherein the petitioner was nominated, however, he was not mentioned when it was first reported to the police that Hamza was missing and that he was last seen in the presence of the petitioner. Learned counsel states that statements under section 161 of the Code of Criminal Procedure, 1898 (‘the Code’) of two relatives of the deceased were recorded which stated that they had last seen Hamza with the petitioner, but this does not stand to reason because they would have not permitted a young boy to be taken with an adult and not have informed the boy’s father.

3. We enquired from the learned AAG and the police officers in attendance about the investigation of the case and it transpired that the police report (challan) had only relied upon the said two statements. It is most unfortunate that a young boy died but proper investigation did not take place to ascertain what had happened let alone who was responsible. This is a classic example of an incompetently handled investigation.

4. A practice has also developed whereby despite prior notice to the State preparation of the case is done before the Court, rendering this Court into an office of the prosecution. Rather than attending to the matter with the seriousness that it deserves two police officers, who are investigating the crime travelled from Peshawar to bring documents which could have been e-mailed, faxed or sent by Whatsapp, and then the relevant documents could have been filed, which would have been useful in determining the outcome of this bail application.

5. A case of further enquiry is made out and the petitioner is admitted to bail in FIR No.631, registered at Police Station Mathra, Peshawar, on 8 August 2022 subject to furnishing bail bond in the sum of one hundred thousand rupees with one surety in the like amount to the satisfaction of the Trial Court by converting this petition and allowing it in the said terms.

6. Copy of this order be sent to the Inspector General of Police, to the Secretary Home Department and to the Advocate-General, Kyber Pakhtunkhwa.

Crl.P.149-P/2023
Javid Khan v. Arshid Khan and another
Mr. Justice Qazi Faez Isa
15-11-2023

28/11/2023

Pre - requisites of a valid gift are :
(i). offer by the donor
(ii) its acceptance by the donee ; and
(iii) the delivery of possession ---
Valid gift comes into existence as soon as the three ingredients are completed .

2023 SCMR 2012

28/11/2023

Incorrect entry in revenue record --- Limitation period for challenging such entry --- Scope --- Law states that if a wrong entry is made and , in accordance with the prevailing Land Revenue Act , the ownership entry is recorded in the Register Haqdaran Zameen / Jamabandi / periodical record , each new entry in the latest record , typically updated every four years , creates a new cause of action --- However , for a plaintiff to successfully argue that the wrong entry was unknown to him and lacked legal basis , he must demonstrate that the last wrong entry came to his knowledge --- In such cases ,, the Court has declared the suit to be within time --- However , it is important to note that the Supreme Court , as well as the principles of law of limitation , have never provided a blanket exemption from the law of limitation for individuals challenging an admitted wrong entry .
2023 SCMR 2103

27/11/2023

اگر کسی نے یہ فیصلہ پڑھ لیا اسکو بے نامی ٹرانزیکشن کی سمجھ آگئی ۔۔
ضرور پڑھیں

2023 S C M R 572

Benami transaction---
----Essential characteristics of a benami transaction stated.

In a benami transaction, there are three persons involved - the seller, the real owner, and the ostensible owner or benamidar, and, in the ordinary course of human conduct, it encompasses two different contracts, one is the contract, express or implied, between the ostensible owner and the purchaser (real owner) and it specifically mentions two things. First, the real owner expresses his desire or compulsion (also called motive) and obtains permission from the ostensible owner (Benamidar) to purchase the property in his name after paying the consideration amount to the seller, and second, it talks about the consent of the ostensible owner (Benamidar) that whenever the real owner demands, he will be bound to transfer the property to him. The other is a contract between the ostensible owner (Benamidar) and the seller of the property. Both such contracts, though differ from each other in their legal character and incidents, but complement each other to establish benami transaction, and thus, in cases of such transaction, the plaintiff must first state them, in detail, in his plaint, and then prove them by legal testimony, and failure to do so is fatal.

2023 S C M R 572

Benami transaction---
----Proof---Burden of proof---Evidentiary requirements for proving a benami transaction stated.

The case of benami dispute is not one in which the authenticity of the document is in question, but in such cases the ex*****on of the document is an admitted fact and the seeker only intends rectification of the document and wants that in it the name of the Benamidar be delated and instead his name be written. For such purposes not only direct oral evidence but also circumstances and surroundings of the case have to be considered. The burden of proof lies heavily on the person who claims against the tenor of the document or deed to show that the ostensible vendee (owner) was a mere name lender and the property was in fact purchased only for his benefit. Such burden would be discharged by satisfying the well-known criteria, i.e

(i) the source of purchase money relating to the transaction;
(ii) possession of the property,
(iii) the position of the parties and their relationship to one another,
(iv) the circumstances, pecuniary or otherwise, of the alleged transferee,
(v) the motive for the transaction,
(vi) the custody and production of the title deed, and
(vii) the previous and subsequent conduct of the parties.

Each of the said stated circumstance, taken by itself, is of no particular value and affords no conclusive proof of the intention to transfer the ownership from one person to the other. But a combination of some or all of them and a proper weighing and appreciation of their value would go a long way towards indicating whether the ownership has been really transferred or where the real title lies.
Advocate Qaisar Farooq
Since the very object of a benami transaction is secrecy, the evidence adduced in cases of such character should stand the test of strict scrutiny and satisfy the tests mentioned above. In other words, the evidence must be reliable and acceptable impelling the Court to take a view contrary to the recitals in the impugned document. The consideration of such evidence should be in a proper manner and in the right perspective.

26/11/2023

02/09/2023

جب ملزم ایک دفعہ پسٹل یا بندوق کا ٹرائیگر دبا دے تو خواہ گولی دوسرے شخص کو لگے یا نہ لگے یا جسم کے غیر اھم حصہ پر لگے دفعہ 324 ت پ پوری طرح لاگو ھوگا

Once the triggered is pressed and the victim is effectively targeted, “intention or knowledge” as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant’s choice nor can he claim any premium for a poor marksmanship.
Sheqab Muhammad Versus The State and others۔

IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)

PRESENT:
Mr. Justice Mazhar Alam Khan Miankhel
Mr. Justice Qazi Muhammad Amin Ahmed

Criminal Petition Nos.591 of 2020
(Against the order dated 05.06.2020 in Cr.M (BA) 229-M/2020 passed by the Peshawar High Court, Minhora Bench (Dar-ul-Qaza), Swat

Sheqab Muhammad.…Petitioner(s)

Versus

The State and others….Respondent(s)

For the Petitioner(s): Mr. Abdul Latif Afridi, ASC

For the State: Mr. Anis M. Shahzad, ASC
with Samiullah, SHO and Abdul Kamal, I.O.

For the Complainant: In person

Date of hearing: 07.08.2020.

ORDER

ORDER

Qazi Muhammad Amin Ahmed, J.- Petitioner is amongst the array of accused, blamed to have murderously assaulted the PWs at 9:10 a.m. on 10.4.2020 within the precincts of Police Station Himmat Khan Shaheen Kalangi, District Malakand, in the backdrop of a dispute over immovable property; fire shot attributed to the petitioner is confirmed by a medico legal certificate.

2. Heard.

3. Arguments that ocular account stands contradicted by medical evidence and in the absence of an independent witness from the public, petitioner’s general participation, resulting into an injury on a non-vital part of the body, particularly in the absence of repeated fire shot, squarely brings his case within the remit of further probe, are not only beside the mark but also cannot be attended without undertaking an in-depth analysis of the prosecution case, an exercise forbidden by law at bail stage. In a daylight affair, two persons sustained firearm injuries besides the one having endured violence through blunt means and as such requires no public support to drive home the charge; their statements supported by medical examinations of even date, cumulatively bring petitioner’s case prima facie within the mischief of section 324 of the Pakistan Penal Code, 1860, hit by statutory prohibition, in view whereof, he cannot be released on bail in the absence of any consideration within the purview of subsection 2 of section 497 of the Code ibid. Similarly, murderous assault as defined in the section ibid draws no anatomical distinction between vital or non-vital parts of human body. Once the triggered is pressed and the victim is effectively targeted, “intention or knowledge” as contemplated by the section ibid is manifested; the course of a bullet is not controlled or steered by assailant’s choice nor can he claim any premium for a poor marksmanship. Exercise of discretion by the High Court being well within the bounds of law calls for no interference. Petition fails. Leave declined. Judge
Judge
Islamabad, the 7th August, 2020

02/03/2023

P L D 2016 LAHORE 255

S. 408(b)---Notification SO(JII)1-8/75(P-V), dated 21-3-1996---Accused convicted and sentenced by Magistrate empowered under S.30, Cr.P.C.---Direct appeal before the High Court---Not maintainable---Persual of S.408(b), Cr.P.C. [as amended through Notification No.SO(J-II)1-8/75(P-V), dated 21-3-1996 to the extent of Punjab] showed that any sentence passed by any class of Magistate including Special Magistrate was appealable to the Court of Session and any such appeal directly filed before the High Court was not maintainable.
2013 M L D 1054
Ss. 408(b) & 30---Appeal from sentence passed by Judicial Magistrate under S. 30, Cr.P.C.---Forum---Accused persons were convicted by Judicial Magistrate under S. 30, Cr.P.C. and sentenced to seven years imprisonment and fine---Accused persons filed appeal against their conviction before the Additional Sessions Judge, which was dismissed being coram non judice and returned for presenting before the High Court in view of S. 408(b), Cr.P.C.---Legality---Section 408(b), Cr.P.C. stated that a sentence of imprisonment for a term exceeding 4 years, passed by Assistant Sessions Judge, shall be appealable to the High Court---Word "Magistrate/Judicial Magistrate" did not find mention in S. 408(b), Cr.P.C., therefore, said section was not applicable in case of a sentence passed by a Magistrate under S. 30, Cr.P.C.---Impugned order was set aside with the direction that appeal before the Additional Sessions Judge should be considered to be pending---Revision petition was allowed accordingly.
2006 Y L R 1718
---Ss. 408, 435 & 439---Penal Code (XLV of 1860), Ss.392 & 411---Appeal before Additional Sessions Judge---Main­tainability---Petitioner had challenged order passed by Additional Sessions Judge by which he had dismissed appeal filed by petitioner against his conviction on ground that appeal could be filed before High Court as sentence awarded to petitioner was more than four years---Any conviction and sentence passed by a Magistrate was appealable before the Court of Session and if accused was convicted by Assistant Sessions Judge and sentenced to more than four years, that was appealable in the High Court---Conviction and sentence in the present case, having been passed by Magistrate 1st Class, appeal was maintainable before Sessions Court--- Appeal of petitioner was dismissed as withdrawn under impression that same was not maintainable before Sessions Court---Order of Additional Sessions Judge whereby appeal was dismissed as withdrawn, was declared to be illegal and subsequent order passed on the ground that earlier appeal was dismissed as withdrawn, had become of no legal effect---Both said orders were set aside by accepting revision and appeal which was dismissed as withdrawn, would be deemed to be pending and decided on merits after hearing parties.
2005 PCr.LJ 1435
----S. 408(b) [as amended by Law Reforms Ordinance (XII of 1972)]---If a person is convicted by any Magistrate, including Magistrate Section 30 and if the term of the sentence exceeds 4 years, appeal shall lie to the Court of the Session---If a sentence is passed by an Assistant Sessions Judge exceeding 7 years, appeal against such order cannot be filed before a Sessions Judge since they were part of a one Court---High Court, however observed that a lot of confusion would have been avoided, had the legislature itself provided in S.408(b), Cr.P.C. that appeal shall lie before a Sessions Court against an order of Magistrate Section 30, if it passes a sentence of imprisonment for a term exceeding four years-before high high court

27/01/2023

2022 SCMR 2077

Call Data Record (CDR), reliance upon---Scope---In absence of any concrete material the Call Data Record (CDR) is not a conclusive piece of evidence to ascertain the guilt or otherwise of an accused

2022 SCMR 2077

S. 497(2)---Penal Code (XLV of 1860), S. 302, 394, 107, 109 & 411---Constitution of Pakistan, Art. 185(3)---Qatl-i-amd, voluntary causing hurt in committing robbery, abetment, dishonestly receiving stolen property---Bail, grant of---Further inquiry---Accused female of advanced age---Admittedly, the accused-lady was not named in the crime report and it was subsequent in time that she was implicated in the case on the supplementary statement of the complainant---Only allegation against the accused was that the whole occurrence was committed by the co-accused on her abetment---However, no specific date, time and place where the conspiracy was hatched had been mentioned in the supplementary statement of complainant---Even name and number of witnesses to that extent was not available on the record---All ingredients of abetment mentioned under section 107, P.P.C. were prima facie missing in the present case---Prosecution admitted that as yet there was no evidence that the recovered mobile phone belonged to the accused and the SIM was in her name---In these circumstances, the Call Data Record (CDR) in isolation did not advance the prosecution's case unless and until some credible material in such regard had been collected---Challan had already been submitted, which meant that the accused was no more required for further investigation---Accused was a lady of 50 years of age, having five children left at home---Keeping in view the peculiar facts and circumstances of the present case, keeping the accused behind the bars for an indefinite period would not be in the interest of justice---In these circumstances, it was the Trial Court which after recording of evidence would decide about the guilt or otherwise of the accused---Case of the accused squarely fell within the purview of section 497(2), Cr.P.C., Call ing for further inquiry into her guilt---Petition for leave to appeal was converted into appeal and allowed and accused was admitted to bai

27/01/2023

2022 SCMR 2068

497(2)---Penal Code (XLV of 1860), Ss. 409, 420, 467, 468, 471 & 201---Prevention of Corruption Act (II of 1947), S. 5(2)--- Constitution of Pakistan, Art. 185(3)---Officials of Excise and Taxation Department involved in bogus registration of vehicles---Pre-arrest bail, grant of---Further inquiry---Rule of consistency---Admittedly the accused was posted as Excise and Taxation Officer (ETO) in the year 2019 whereas the scam of bogus registration pertained to the years 2015-2018---Investigating Officer stated before the Court that up till now the accused had no nexus with the scam, which was under investigation---As far as the case of the co-accused was concerned, it was his case that he was merely a Data Entry Operator, who was entrusted with the job of punching the data in system---As per SOPs, the basic duty to examine the documents and verify the particulars of the vehicles entered in the system with the original file; the physical examination of the vehicle, and submission of the file after complete satisfaction of the papers of the motor vehicle was the job of the Inspector and not the co-accused---All the officers, who were nominated in the crime report, had been exonerated, which fact prima facie fortified the stance of the accused and co-accused that they had been made scapegoat---One of the co-accused, who had been ascribed a similar role to that of present accused and co-accused had been granted post arrest bail up to the High Court, and his bail was not challenged before the Supreme Court, meaning it had attained finality---Trial Court after recording of evidence would decide about the guilt or otherwise of the accused and co-accused and no useful purpose would be served by sending them behind the bars for an indefinite period---Prima facie there were sufficient grounds to take into consideration that the case of the accused and co-accused was fully covered by section 497(2), Cr.P.C. calling for further inquiry into their guilt---Petitions for leave to appeal were converted into appeals and allowed and accused and co-accused were granted pre-arrest bail

27/01/2023

2022 SCMR 2024

Minor discrepancies in the prosecution case---Effect---Such discrepancies do not frustrate the prosecution case unless and until there is something which directly shatters the salient features of the prosecution case

Art. 22 ---Test identification parade---Scope---Identification parade looses its strength if the accused persons are identified during the course of proceedings before the Trial Court.

Ss. 391 & 396---Dacoity, dacoity with murder---Liability of all co-convicts same as that of the actual murderer---Section 396, P.P.C. in its plain term applies to every situation in which five or more persons commit dacoity and in the course of the commission of such dacoity anyone of the said person commits murder---Thereby all five or more people become squarely responsible for the crime of "dacoity with murder" and expose themselves to the penalties outlined in the said provision of law.

27/01/2023

Complete info about F.I.R
(First Information Report)

Relevant Provision

Section 154 CrPC deals with the topic of FIR (First Information Report)

Object

* To inform about the commission of a cognizable offence
* To police officer
* Empowered to investigate the case
* To obtain first-hand information
* To set the criminal law in motion
* To collect evidence for tracing
* Bringing the culprits to justice.

Modes of information

1. Oral

a. To S.H.O.
b. Reduced in writing
c. Read over to the informant
d. Signed by the informant
e. Entry in Roznamcha (Daily Diary)

2. Written

a. To S.H.O.
b. Reduced in writing as it is
c. Signed by the informant
d. Entered in Roznamcha (Daily Diary)

Who may lodge an F.I.R.?

Ä Any citizen can lodge an F.I.R.

Time of the recording of an F.I.R.

After determination about the commission of a cognizable offence the police office shall record an F.I.R.

F.I.R in non-cognizable cases

Ü Entry in Roznamcha (Daily Diary)
Ü Information to the magistrate and seek cognizance if necessary
Ü After cognizance he will proceed as an F.I.R. of a cognizable case

Investigation in cognizable offence

There is no need of information to area magistrate for seeking cognizance for investigation in cognizable cases. The code provided powers to investigate a cognizable case without the order of magistrate.

Effect of an F.I.R.

a. Neither substantive evidence
b. Nor exhaustive document
c. May be used to suspect or contradict the evidence of the informant

In bail cases

1. Nomination
2. Attribution

F.I.R. as dying declaration

Ü Substantive evidence

Statutory obligation

It is mandatory for the police officer that whenever he is informed about a cognizable case either oral or in written, he has to record it in the same manner as prescribed by the code.

Remedy against refusal

֎ Writ petition under Article 199 of the constitution of Pakistan in High Court
֎ Petition under section 22 A,B CrPC in session court.

Second F.I.R.

v Cannot be lodged
v Cross version not legally barred

Contents of an F.I.R.

Ø Serial no.
Ø Police station
Ø Date and time of occurrence
Ø Place of occurrence
Ø Date of recording F.I.R.
Ø Name and address of informant
Ø Distance of the place of occurrence from the police station
Ø Signatures/thumb impression of complainant
Ø Signatures of the person who recorded F.I.R.

Quashment of F.I.R.

F.I.R can be quashed under section 561-A CrPC but only by High Court. The instances of quashment of F.I.R. may be
1. Lawful marriage between adults
2. Matter of civil nature
3. Evidence not sufficient

Essentials

ü Cognizable offence
ü Reduced in writing
ü Signed by informant
ü Entered in police diary

Evidentiary value

It is a maxim that “Ipsi Dixit of police is inadmissible”, meaning thereby that the police report is not binding upon the courts. But it is also a fact that we don’t have any other investigating agency or institution other than police so courts can rely upon the F.I.R. if they are in corroboration with the prosecution evidence. In short, the F.I.R. is a weak type of evidence.

Importance in criminal cases

F.I.R. is the substantive tool to set the law into motion, it is the investigation which proves or disproves its worth whether it is based on truth or not. It is neither substantive evidence nor an exhaustive document and it may be used to suspect or contradict the evidence of the informant.

Second F.I.R.

There is neither any provision of second F.I.R. in the code nor it is described in it. However, the cross version is not barred by the accused party.

Cross version to be treated as an F.I.R.

When the cross version is recorded by the accused party, it shall be treated as an F.I.R.

Registration of two or more F.I.R.s

The code does not allow for registration of two or more F.I.R.s of the same occurrence.