A B Choudry Law Firm

19/05/2016

Scope of PLEA BARGAIN in Accountability Proceedings.

(PLD 2003 Supreme Court 837)

The examination of the statutory provision on the subject in the, light of the verdict given by this Court would reveal that policy of law, is that plea bargain must be executed in writing in plain and express words showing the intention to avail the benefit of section 25 of the Ordinance which must be voluntary and free of an element of threat, pressure, compulsion and duress. The Court may direct the discharge or release of an accused person during the investigation/inquiry or at any subsequent stage before or after the commencement of the trial if he enters into a plea' bargain which is a compromise in the nature of compounding the 'offence. The plea of bargaining being a guilty plea, the agreement of the accused with prosecution must contain the essential elements of offer and acceptance in express words and, the Court must pass a speaking and proper order; of its approval. The general law is that if an accused pleads guilty to the Charge at the trial, he can be straightaway convicted and sentenced but the conviction and sentence on the basis of an admission made by an accused in an ancillary proceedings before commencement of the trial would not be sustainable. However, the concept of plea bargain in the Ordinance is slightly different as an accused can negotiate such plea during the course of inquiry/investigation or at any subsequent stage before or after the commencement of the trial or in appeal. The plea bargain is not like a civil contract between the parties rather it contains the elements of culpability of crime as result of which a person facing accusation under the Ordinance, on entering such plea saves himself from conviction and substantive sentence but entails the penalties provided in section 15 of the Ordinance and this is well-known principle of criminal justice system that an accused cannot be held guilty merely on the basis of probabilities rather finding of guilt should rest squarely and firmly on the evidence. It is the fundamental rule of criminal administration of justice that basic onus always rests on the prosecution to prove the guilt of the accused and the special provision can neither be construed to mean that the onus of the prosecution to prove the guilt is shifted to the accused to prove his innocence or a presumption of guilt can be raised against an accused without discharge of initial burden by the prosecution. The only exception to the above rule in special law can be that on the discharge of the initial burden or proving guilt by the prosecution through the evidence, the onus is shifted to the accused to disprove the allegation and if he fails to discharge his burden satisfactorily, as presumption of guilt can be raised against him. We may point out that the plea bargain being a sort of guilty plea cannot be presumed without an express offer of accused and its acceptance in clear words by the prosecution and the mere refund of alleged ill-gotten money as consideration for grant of bail would not amount to admit the criminal liability and enter into plea bargain. In the present case, we find that the essential elements of offer of accused to enter into the plea bargain and acceptance of the same by the competent authority was missing but the trial Court while passing the order of discharge of accused in pursuance of the order of the High Court treated it a case of plea bargain under section 25 of the Ordinance. There is no cavil to the proposition that a person who is involved in a case under the Ordinance, if enters into plea bargain before the commencement of trial and framing the formal charge, can be discharged by the Court and notwithstanding an express order of the Court he shall face the consequence as provided in section 15 of the Ordinance by operation of law. In the present case, the perusal of record would show that the appellant did not enter into an express agreement with the prosecution for disposal of case against them in terms of section 25 of the Ordinance and the essential element of plea bargain of offer and acceptance being missing, the transaction would not be given the status of plea bargain in term of section 25 of the Ordinance. We thus conclude that plea bargain must be made part of the judicial record in the form of offer and acceptance through an express agreement containing the term of the settlement.

04/01/2016

Acceptance of Legal Dues Does Not Create Estoppel.

Mere acceptance of legal dues by an employee would not amount to waiver as to estop him from challenging the order passed against him.
Such remedy could not be denied to him if the charge of misconduct had not been established. Likewise, Hon’ble Supreme Court of Pakistan, in case titled Farasat Hussain and others v. Pakistan National Shipping Corporation through Chairman and others(2005 PLC (C.S.) 890), observed that merely receiving such an amount would not constitute estoppel and the appropriate legal remedy could be sought.

2005 PLC (C.S.) 890

08/09/2015

Discouraging the practice of Adjournments.

1- We make it abundantly clear that if a witness
is present in court he must be examined on that
day. The court must know that most of the
witnesses could attend the court only at heavy
cost to them, after keeping aside their own
avocation. Certainly they incur suffering and loss
of income. The meagre amount of bhatta
(allowance) which a witness may be paid by the
court is generally a poor solace for the financial
loss incurred by him. It is a sad plight in the trial
courts that witnesses who are called through
summons or other processes stand at the
doorstep from morning till evening only to be told
at the end of the day that the case is adjourned
to another day. This primitive practice must be
reformed by the presiding officers of the trial
courts and it can be reformed by everyone
provided the presiding officer concerned has a
commitment towards duty.
State of U.P. V. Shambu Nath Singh
(2001) 5 SCC 667

2- Swaran Singh V. State of Punjab
(2000) 5 SCC 668
“
It has become more or less a fashion to have a
criminal case adjourned again and again till the
witness tires and gives up. It is the game of
unscrupulous lawyers to get adjournments for
one excuse or the
other till a witness is won over
or is tired. Not only is a witness threatened, he is
abducted, he is maimed, he is done away with, or
even bribed. There is no protection for him. In
adjourning the matter without any valid cause a
court unwittingly becomes party to miscarriage of
justice.

26/06/2015

Scope of Post Remand Proceedings

in post remand proceeding the Court will only confine to
the terms of the remand order.

(1990 SCMR 751)

31/03/2015

09/11/2014

Judicial Review of a Government
Policy

“Besides the task of allocating such quotas and
making arrangements for Hajj fell within the policy
making domain of MORA and in absence of any
illegality, arbitrariness or established mala fides, it was
not open for the learned High Court to annul the policy
framed by the competent authority.”

Dossani
Travels (Pvt.) Ltd. and others v. M/s Travels Shop (Pvt.) Ltd. and others (PLD 2014 SC 1)

09/11/2014

Guidelines for judicial review of a government
policy

“Though its policies sometimes may be open to criticism
but that is for the concerned economists in the
government or academics to examine and opine but once
the Competent Authority in the government has taken a
decision backed by law, it would not be in consonance
with the well established norms of judicial review to
interfere in policy making domain of the executive
authority.”

Dr. Akhtar Hassan
Khan and others v. Federation of Pakistan and others (2012 SCMR
455)

18/09/2014

Lawyers abused through a common practice of judicial officer in a term that, JOs skip argument advanced, or case law produced by the bar.

Here lies the REMEDY.

i am quoting the relevant passage. if you are interested, you can ask for full copy.

So far as the second charge of passing judgments in civil appeals
against the mandatory provision of law and the case law laid down by the superior courts is concerned, the appellant himself has admitted that in the said judgments he had departed from certain principles of law and that the aggrieved party had the remedy to challenge his judgments before the higher forum. This can hardly be considered a valid excuse by a judicial officer. When ignorance of law is considered a s no excuse in the matter of S.A.No.8/2001 a layman how it could be taken as a valid ground in the matter of a judicial officer like the present appellant, who was vested with the power to exercise the appellate jurisdiction.

Record.

2014LHC6497
BEFORE THE PUNJAB SUBORDINATE JUDICIARY SERVICE TRIBUNAL, LAHORE JUDICIAL DEPARTMENT

S.A. No. 8 of 2001

Muhammad Anwar Nasim Vs. Registrar

Muhammad Farrukh Irfan Khan, J

27/06/2014

procedural law should not ordinarily be construed as mandatory

A procedural law should not ordinarily be construed as mandatory, the procedural law is always subservient to and is in aid to justice. Any interpretation which eludes or frustrates the recipient of justice is not to be followed. Procedural law is not to be a tyrant but a servant, not an obstruction but an aid to justice. Procedural prescriptions are the handmaid and not the mistress, a lubricant, not a resistant in the administration of justice.



Sk. Salim Haji Abdul Khayumsab v. Kumar, 2006 AIR(SC) 396

11/04/2014

Appreciative Approach.

BY

Justices Pradeep Nandrajog and Deepa Sharma

NO ONE COULD BE PREVENTED FROM PEEING.

1. The writ petition raises an issue which this Court, if at all it can solve could do so in a clumsy way. The petitioner has filed photographs showing that residents of buildings and especially Group Housing Complex, fed up with the Indian habit of relieving the pressure on the bladder by unzipping and peeing on the first wall seen by the person is sought to be curtailed, if not at all prohibited, by affixing photographs deities on the walls. The hope would be that man, the greatest creation of the infinite artist, would not dare his privies in front of his lord and would not urinate on the road.

2. In spite thereof, the photographs evidence that the pressure on the bladder is blatantly relieved by virtually peeing on the photographs of once God.

3. Not only that the photographs at page 26 would reveal that to shame the offender the owners of the complex have written graffiti that ‘Look here a dog and a donkey is peeing’. In spite thereof, a man is seen peeing on the wall.

4. Now, nobody can prevent a person from affixing photographs of deities on the walls of his house or on the walls of a Group Housing Complex. The direction sought to be issued against the residents that photographs of Gods be directed to be removed cannot be issued by us. The menace of urinating in public has to be solved elsewhere.

5. Surely this Court cannot makes a man walks out of his house his zip should be locked [sic].

6. The writ petition stands disposed of.

09/03/2014

Another reformative approach by none-else but Mr. Justice Asif Saeed Khan Khosa, which will be an abundant impediment on mischievous practice being exercised by lawyers in Bail Matters.
After Zubair's case, this is really a landmark judgment authored by his lordship.
(I) At the bottom of every application for bail it is obligatory to attach a certificate regarding non-filing of any such application before the same court previously
and, in case of a repeated or successive application, a certificate disclosing filing of any such application previously by the same accused person, any other accused person, the State or the complainant party before the same court in the same criminal case or its cross-case and such certificate must also disclose the number of the previous application, the date of its decision and the name of the Judge dealing with and deciding the same. No subsequent bail application is to be entertained unless the same is accompanied by copies of the earlier bail applications and copies of the orders passed thereon.

(II) All repeated or successive applications for bail must be fixed for hearing before and heard and decided by the same Judge(s) who had dealt with and decided any earlier application for bail unless the Judge or one or some of the Judges dealing with and deciding the earlier application(s) is/are not available at the relevant station of posting/Principal Seat/Bench.

(III) Dismissal of an application for bail after attending to the merits of the case amounts to rejection of all the grounds available or in existence till the time of such dismissal whether such grounds were actually taken or urged or not and whether such grounds were expressly dealt with in the order of dismissal or not.

(IV) In case of dismissal of an earlier application for bail on the merits of the case a subsequent application for the same relief can be filed and entertained only if it is based upon a fresh ground, i.e. a ground which was not available or in existence at the time of decision of the earlier application.

(V) Withdrawal simpliciter of an earlier application for bail before addressing or hearing of any argument on the merits of the case does not preclude filing of a subsequent application for the same relief before the same court and its decision by such court on the merits of the case. In all cases of withdrawal of such an application the court must faithfully record in its order as to whether withdrawal of the application had been requested and allowed after addressing and hearing of some or all the arguments on the merits of the case or withdrawal of the application had been requested and allowed before addressing and hearing of any argument on the merits of the case.

(VI) In a case of withdrawal of an earlier application for bail after addressing and hearing of some or all the arguments on the merits of the case no subsequent application for the same relief can be filed before or entertained by the same court unless such subsequent application is based upon a fresh ground, i.e. a ground which was not available or inexistence at the time of disposition of the earlier application.

The Office is directed to send a copy of this judgment to the Registrars of all the High Courts in the country who are directed to ensure that every Judge and Magistrate dealing with criminal cases within the jurisdiction of each High Court receives a copy of this judgment and complies with the principles of practice and propriety enunciated or recapitulated herein.

(Note: A reference here to an application for bail may be read as a reference to all applications for bail, cancellation of bail or suspension of sentence and release on bail during the pendency of an appeal in the same criminal case or its cross- case filed by the same accused person, any other accused person, the State or the complainant party.)

(Criminal Review Petitions No. 8-L and 10-L of 2013 in Criminal Petition No. 896-L of 2012 (Against the judgment dated 03.01.2013 passed by this Court in Criminal Petition No. 896-L of 2012))

09/03/2014

IS IT AMENABLE FOR A COURT TO MAKE ADVERSE REMARK IN A PROCEEDING ?

No adverse remark or observation is to be made or recorded in a judgment of a court without issuing notice to the concerned person or before affording him an opportunity of being heard in the relevant connection

Muhammad Punhal v. Abdul Wahid Abbasi and another (2003 SCMR 1406), In the matter of expunging certain remarks made by a Magistrate against Additional District and Sessions Judge, Lyallpur (PLD 1950 Lahore 34), Syed Ali Nawaz Gardezi v. Lt. - Col. Muhammad Yusuf (PLD 1963 SC 51) and Malik Firoz Khan Noon, Prime Minister’s House, Karachi v. The State (PLD 1958 SC (Pak.) 333)