Yasir Basra Advocate ka Maikhana

27/12/2024

درخواست زیر دفعہ 12/2 دائر کرنے کی معیاد آرٹیکل 181 کی رو سے 3 سال ہے
2016 YLR 452
درخواست زیر دفعہ12/2آخری فیصلہ کرنے والی عدالت میں دی جا سکتی ہے
2016 YLR 1266
متاثرہ شخص اگر فریق مقدمہ نہ ھو، کسی حکم و ڈگری کے خلاف 12(2) ضابطہ دیوانی کے تحت درخواست دائر کرسکتاھے یا عدالت اپیل میں اپیل دائر کر سکتا ھے.
2024 YLR 251
درخواست زیر دفہ (2) 12) متاثرہ شخص ہی دائر کر سکتا ہے
2015 YLR 2194

درخواست زیر دفعہ 12/2 جو کہ دعوی نہ ہے اس لئے درخواست 7/11 خارج نہیں ہو سکتی
PLD 2013 L 51
سمن کی باضابطہ طور پر تمعیل نا کروائی گی نہ ہی اخبارات اشتہارات کروایا گیا درخواست 12/2 منظور شدہ
2005 SCMR 1877
اگر ریکارڈ سے کوئی فراڈ ثابت ہو تو ایشو فریم کرنے کی ضرورت نہ ہے
2003 SCMR 1050
کرایہ داری ڈگری کے خلاف بھی درخواست (2)12 ض د قابل رواں ہے
2011CLC 452+1610+1815

23/12/2024

فوجداری نگرانی، اپیل ، رٹ پٹیشن ،

استغاثہ میں بریت کے خلاف اپیل کی مدت 60 دن ہے۔
‏2014 SCMR 671‏
مجسٹریٹ پولیس کی رپورٹ سے اتفاق کرے تو شیشن کورٹ میں نگرانی قابل رواں نہ ہے۔
2021 PCRLJ 261e

پولیس کی رپورٹ 173 پر کوئی حکم ایڈمنسٹریٹر آڈر ہو گا سیشن میں گرانی نہ ہو گئی
PCRLJ- 1103B- 2015‏

منشیات کے کیس میں بریت کے خلاف اپیل کی مدت 6 ماہ ہے.
2020 Ylr 2053

اندراج FiR یا استغاثہ دائری میں کوئی معیاد مقرر نہ ہے۔
670 2019 PLD‏
‏ATA کورٹ حکم بریت کے خلاف اپیل 15 یوم ہے۔
2002 PCRLJ 2041‏

21/12/2024

15/12/2024

جب کوئی انسان ہمارے ذہنی سکون کے لئے خطرہ بننے لگتا ہے تو ہمارا دماغ ہمیں سائن ضرور دیتا ہے، ۔۔
لیکن ہم اس آواز کو یہ سوچ کر اگنور کر دیتے ہیں کہ رشتوں میں محبتوں میں قربانیاں دینی پڑتی ہیں،۔۔
اور اس قربانی کا آغاز "اپنا سکون برباد کرنے سے ہوتا ہے"۔۔
ان لوگوں کیلئے کئی کلومیٹرز چلنا جو لوگ آپ کیلئے دو قدم نہ چل سکیں سراسر بیوقوفی ہے، تعلق میں جن چیزوں کا تعاقب کرنا پڑے وہ کبھی آپ کی ہوتی ہی نہیں!۔۔۔

24/11/2024

VVVI. MUST READ JUDGEMENT.
PLJ 2024 Cr.C. 471
منشیات کے مقدمہ میں فرد مقبوضگی، استغاثہ اور نقشہ موقعہ کی تحریر ایک ہی ہاتھ کی تھیں۔ ملزم بری
Both Complainant and PW admitted in their cross-examinations that the handwriting on complaint, Recovery Memo, rough site plan and the statements of witnesses recorded under section 161 Cr.P.C. was the same. The Investigating Officer, tried to save the situation by stating that the handwriting on these documents was different. On this, the Appellant’s counsel requested the trial court to examine these documents upon which it found that they were in the same hand.
Recovery memo--A recovery memorandum is the fundamental document--Seizing Officer should draft it carefully, ensuring(naeem) that it includes a comprehensive inventory of the item recovered--This document must be executed in the presence of two or more credible witnesses, who are then required to endorse it--The primary objective of drawing the recovery memorandum on the spot, with the signature of such witnesses, is to ensure that the recovery process is carried out transparently and with integrity, reducing the possibility of false allegations or evidence tampering.
Proof Beyond a Reasonable Doubt.
-----------------------------
Perhaps a brief summary of what the definition should and should not contain may be helpful. It should be explained that:
• the standard of proof beyond a reasonable doubt is inextricably intertwined with that principle fundamental to all criminal trials, the presumption of innocence;
• theburdenofproof rests on the prosecution throughout the trial and never shifts to the accused;
• areasonable doubt is not a doubt based (naeem)upon sympathy or prejudice; • rather, it is based upon reason and common sense;
• itislogically connected to the evidence or absence of evidence;
• itdoesnotinvolve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt; and
• moreisrequired than proof that the accused is probably guilty– a jury which concludes only that the accused is probably guilty must acquit.”

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24/11/2024

According to established legal principles, whenever a miscellaneous application, such as an application under Order XLI, Rule 27 CPC for production of additional evidence, is pending during the course of an appeal, it is imperative for the Appellate Court to first decide the said application before delving into the merits of the appeal. This procedural requirement is not merely a technical formality, but a critical component of ensuring that justice is served fairly and equitably. The failure to resolve such a pending application prior to rendering a final decision on the appeal leads to a procedural irregularity that invalidates the entire appellate process, as it deprives the parties of their right to a fair and impartial hearing. The law unequivocally mandates that all pending miscellaneous applications must be disposed of before addressing the main case, as the non-disposal of such applications creates an imbalance and potentially prejudices the case of the concerned party. A joint decision, where both the miscellaneous application and the appeal are decided together, without first addressing the application separately, undermines the fairness of the judicial proceedings, as it gives undue weight to the appeal and may result in the improper rejection of the application. Furthermore, deciding both the application and the appeal simultaneously denies the parties an opportunity to properly argue and substantiate their respective positions regarding the additional evidence. This is a fundamental breach of the principles of justice and procedural propriety.
Furthermore, this Court has to analyze the allegations of jurisdictional error, such as the jurisdiction that is vested in it by law was not exercised, and/or the court has acted in exercise of its jurisdiction illegally or with material irregularity, or committed some error of procedure in the course of the trial which is material and has affected the ultimate decision.
C.R. No.6830 of 2023
Muhammad Iqbal Gill, etc. Vs Nasir Abbas, etc.
06-11-2024
2024 LHC 5266

24/11/2024

The decision of the executing court directing the judgment debtor to pay value of dowry articles instead of returning the said articles on refusal of respondent to receive the same amounts to a final decision which is appealable as a "decision given" in terms of Section 14 of the Family Court Act, 1964.
WP-15322-24
MUHAMMAD ASHRAF VS
JUDGE EXECUTING COURT ETC
Mr. Justice Muzamil Akhtar Shabir
15-11-2024
2024 LHC 5284

24/11/2024

No doubt, the Courts have inherent powers under section 151 C.P.C., to make such orders as may be necessary to meet the ends of justice or to prevent the abuse of the process of the Court but the said powers are to be exercised to secure the ends of justice.
Admittedly Section 152 C.P.C., gives an authority to the Court to correct the clerical or arithmetical mistakes even of its own motion as none should suffer due to mistake of the Court.
Judgment is verdict or decision of the Court usually recorded after recording the evidence and hearing the contesting parties. It is a conclusive judicial determination of rights of parties in any legal proceedings. Decree, is formal expression of opinion of the Court, it follows the judgment. When conclusion of the Court is translated into executable form, it is reflected in the “decree”. Decree must be drawn in consonance and in conformity with decision of the Court. Order XX Rule 6 C.P.C. defines contents of decree.
On reading Rule 6 of Order XX of C.P.C., it is but clear that, the decree should be in accordance and in conformity with the judgment. Decree in fact is will of the Court. It is true reflection of the judicial determination of rights of the parties made by the Court. It is the decree that is executed or implemented. It is duty of the Court, while drawing the decree, to specify clearly the relief granted or other determination of rights of the parties in the suit so as to make it conformity with the will of the Court capable of enforcement.
The Court has the powers under Section 152 C.P.C., to amend the orders or decrees, to remove, inter-alia, errors arising therein, from any accidental slip or omission and this power can, in express terms of the Section be exercised at any time. The plain reading of Section, leaves no doubt whatsoever, that the power conferred on the Court, if the case falls within the purview of the provisions, can be exercised at any time and it has accordingly been held that there is no time limit for entertaining an application in that behalf. Also it is apparent that the power can be exercised suo motu. It has however, been held that the fact that powers of Court under Section 152 C.P.C., are unlimited does not mean that they will be exercised in all cases in which an application for their exercise is made. The exercise of power will depend on the circumstances of each case. The power is, therefore, discretionary with the Court, although normally where the provision of section 152 C.P.C., are attracted it will order amendment, unless it is inequitable to do so.
Thus it could be said that “accidental slip or omission” as used in Section 152 C.P.C., means to leave out or failure to mention, something unintentionally, it is only where the slip or omission as accidental or unintentionally it could be supplemented or added in exercise of jurisdiction conferred under Section 152 C.P.C. Such course is provided to foster cause of justice, to suppress mischief and to avoid multiplicity of proceedings. However, where slip or omission is intentional and deliberate, it could only be remedied or corrected by way of review if permissible or in appeal or revision as the case may be.
Civil Revision No.1499 of 2012
(Muhammad Hussain, etc. Versus Ali Muhammad, etc.)
2024 LHC 5288

24/11/2024

جعلی وکیل کی ایڈیشنل سیشن جج نے ضمانت منظور کی جوکہ ہائیکورٹ نے انتہائی سخت ریمارکس دیتے ہوئے منسوخ کردی
PLJ 2024 Cr.C. 627

Crl. Misc. No. 73505-CB of 2023, decided on 13.3.2024.

---S. 497(5)--Pakistan Penal Code, (XLV of 1860), Ss. 420, 468, 471--Legal Practitioners and Bars Councils Act, (###V of 1973), S. 58--Respondent No.1 is nominated in the crime report (FIR) with the specific allegation that he was not advocate but while posing himself as advocate, has committed fraud--Allegation levelled against Respondent No. 1 has been established during investigation of the case--Sufficient material is available on the record to connect Respondent No. 1 with the commission of alleged offences--It is heinous/serious offence against the entire legal system of the country. Any malafide, malice or ulterior motive on part of complainant or investigating agency could not be referred in the case--Respondent No.1 has been granted pre-arrest bail in the case against the settled principles of law on the subject as well as material available on the record and impugned order is perverse, capricious, arbitrary as well as fanciful and thus not sustainable in the eyes of law--Respondent No. 1 was not entitled to grant of pre-arrest bail--Impugned order passed by Additional Sessions Judge, has been granted pre-arrest bail in the case, is hereby set aside, pre-arrest bail granted to Respondent No. 1 is hereby recalled.

[Pp. 629, 631 & 632] A, C, E, F & G

PLD 2022 SC 694; 2023 SCMR 308 ref.

Advocate--

----Advocate is such a trusted statutory entity that person comes to him, shares most confident and valuable issues of his/her life with him, hands over documents including valuable instruments alongwith fee to him/her but if he/she is not advocate, then it is not mere cheating with the clients/public-at-large and actual advocates but also with the Courts where he/she appears while posing himself/herself as advocate. [P. 629] B

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 498 & 468-A--Pre-arrest bail--Pre-arrest bail is an extra-ordinary concession, which is meant for protecting innocent people and same is granted only and if reasonable grounds are existing on the record to show that accused is not guilty of the alleged offence.

[P. 629] D

2023 SCMR 975; 2019 SCMR 1129; PLD 1949 Lahore 21;
PLD 2009 SC 427 ref.

Mr. Javed Imran Ranjha, Advocate for petitioner.

Ms. Nuzhat Bashir, Deputy Prosecutor General for State along with Malik Muhammad Idrees, Additional Inspector General of Police (Investigation), Punjab, Lahore, Anoosh Masood, Senior Superintendent of Police (Investigation), Babar Joiya, Superintendent of Police (Investigation), Civil Lines Division, Lahore, Nasir Abbas, Deputy Superintendent of Police, Qadeer Ahmad, DSP (Legal), Shammas Tabraiz, S.I., Khalil Ahmad, S.I. and Imran Ahmad, S.I. with record of the case.

Raja Amanat Ali Khan, Advocate for and with Ghaneem Aabir (Respondent No. 1, identified by his learned counsel).

Date of hearing: 13.3.2024.

Order

Through instant petition filed under Section: 497 (5) Cr.P.C., Muhammad Rafie (petitioner/complainant of case) has challenged the vires of order dated: 02.11.2023 passed by learned Addl. Sessions Judge, Lahore whereby Ghaneem Aabir (Respondent No. 1/accused) was granted pre-arrest bail in case arising out of F.I.R. No. 847/2023 dated: 12.06.2023 registered under Sections: 420, 468, 471 PPC read with Section: 58 of the Legal Practitioners and Bars Councils Act, 1973 at Police Station: Civil Lines, Lahore.

2. Briefly as per crime report (FIR) got recorded by the then Assistant Secretary, Punjab Bar Council, the Anti-Corruption Committee, Punjab Bar Council, while probing the matter came to the conclusion vide its order dated: 20.05.2023 that Raja Ghaneem Abir (present Respondent No. 1) is posing himself as an advocate without having legal justification and defrauding general public. As per computer record, such person was not enrolled in the office of Punjab Bar Council and he was illegally posing himself as an advocate and appearing in the Courts of law.

3. Learned counsel for the petitioner submits that Respondent No. 1 has been granted bail before arrest vide impugned order against the law as well as facts of the case, therefore, same is liable to be cancelled by setting aside the impugned order.

4. Learned counsel for Respondent No. 1 while supporting the impugned order submits that challan has been submitted in the Court and there is no justification to recall the bail granted to the Respondent No. 1 at this stage.

5. Learned Deputy Prosecutor General while opposing the impugned order submits that allegation levelled against Respondent No. 1 has been established during investigation of the case and there was no justification to grant pre-arrest bail to Respondent No. 1; finally prays for setting aside the impugned order.

6. Arguments heard and available record has been perused.

7. It has been noticed that Respondent No. 1 is nominated in the crime report (FIR) with the specific allegation that he was not advocate but while posing himself as advocate, has committed fraud. Aforementioned allegation levelled against Respondent No. 1 has been established during investigation of the case and detail of some reported cases in which he appeared as advocate has been appended at pages No. 9-12 of this petition as Annexure “B”. Sufficient material is available on the record to connect Respondent No. 1 with the commission of alleged offences. It goes without saying that Advocate is such a trusted statutory entity that person comes to him, shares most confident and valuable issues of his/her life with him, hands over documents including valuable instruments along with fee to him/her but if he/she is not advocate, then it is not mere cheating with the clients/public-at-large and actual advocates but also with the Courts where he/ she appears while posing himself/herself as advocate. So, it is heinous/serious offence against the entire legal system of the country. Any mala fide, malice or ulterior motive on part of complainant or investigating agency could not be referred in the case. Pre-arrest bail is an extra-ordinary concession, which is meant for protecting innocent people and same is granted only and if reasonable grounds are existing on the record to show that accused is not guilty of the alleged offence rather the case is of further inquiry and furthermore intended arrest of the accused is an outcome of mala fide, malice and ulterior motive for humiliating him; in this regard, case of “Ahtisham Ali versus The State” (2023 SCMR 975) can be safely referred and its relevant portion from its paragraph No. 7 is hereby reproduced:

7. It is a well settled exposition of law that the grant of pre-arrest bail is an extraordinary relief which may be granted in extraordinary situations to protect the liberty of innocent persons in cases lodged with mala fide intention to harass the person with ulterior motives. By all means, while applying for pre-arrest bail, the petitioner has to satisfy the Court with regard to the basic conditions quantified under section 497 of the Code of Criminal Procedure, 1898 (“Cr.P.C.”) vis-à-vis the existence of reasonable grounds to confide that he is not guilty of the offence alleged against him and the case is one of further inquiry. In the case of Rana Abdul Khaliq v. The State and others (2019 SCMR 1129), this Court held that grant of pre-arrest bail is an extra ordinary remedy in criminal jurisdiction; it is a diversion of the usual course of law, arrest in cognizable cases; it is a protection to the innocent being hounded on trumped up charges through abuse of process of law, therefore a petitioner seeking judicial protection is required to reasonably demonstrate that the intended arrest is calculated to humiliate him with taints of mala fide; it is not a substitute for post arrest bail in every run of the mill criminal case as it seriously hampers the course of investigation. Ever since the advent of Hidayat Ullah Khan’s case (PLD 1949 Lahore 21), the principles of judicial protection are being faithfully adhered to till date, therefore, grant of pre-arrest bail essentially requires considerations of mala fide, ulterior motive or abuse of process of law, situations wherein Court must not hesitate to rescue innocent citizens; these considerations are conspicuously missing in the present case. While in the case of Rana Muhammad Arshad v. Muhammad Rafique and another (PLD 2009 SC 427), this Court has discussed the framework and guidelines for granting bail before arrest under section 498, Cr.P.C. by the High Courts and Courts of Session. It was held that the exercise of this power should be confined to cases in which not only a good prima facie ground is made out for the grant of bail in respect of the offence alleged, but also it should be shown that if the petitioner were to be arrested and refused bail, such an order would, in all probability, be made not from motives of furthering the ends of justice in relation to the case, but from some ulterior motive, and with the object of injuring the petitioner, or that the petitioner would in such an eventuality suffer irreparable harm. This Court laid down the following parameters for pre- arrest bail:-

(a) grant of bail before arrest is an extraordinary relief to be granted only in extraordinary situations to protect innocent persons against victimization through abuse of law for ulterior motives;

(b) pre-arrest bail is not to be used as a substitute or as an alternative for post-arrest bail;

(c) bail before arrest cannot be granted unless the person seeking it satisfies the conditions specified through subsection (2) of section 497 of Code of Criminal Procedure i.e. unless he establishes the existence of reasonable grounds leading to a belief that he was not guilty of the offence alleged against him and that there were, in fact, sufficient grounds warranting further inquiry into his guilt;

(d) not just this but in addition thereto, he must also show that his arrest was being sought for ulterior motives, particularly on the part of the police; to cause irreparable humiliation to him and to disgrace and dishonour him;

(e) such a petitioner should further establish that he had not done or suffered any act which would disentitle him to a discretionary relief in equity e.g. he had no past criminal record or that he had not been a fugitive at law; and finally that;

(f) in the absence of a reasonable and a justifiable cause, a person desiring his admission to bail before arrest must in the first instance approach the Court of first instance i.e. the Court of Sessions, before petitioning the High Court for the purpose.”

So, Respondent No. 1 has been granted pre-arrest bail in the case against the settled principles of law on the subject as well as material available on the record and impugned order is perverse, capricious, arbitrary as well as fanciful and thus not sustainable in the eyes of law. It is by now also well settled that if bail has been granted to accused while ignoring sufficient material available against him on the record, then it is to be recalled; in this regard, guidance has been sought from the case of “Muhammad Rafique versus The State and others” (PLD 2022 Supreme Court 694) and its paragraph No. 6 is hereby reproduced:

“6. Although this Court ordinarily refrains from interfering with bail granting orders of the High Courts, it does not shy away to perform its constitutional obligation to set the matter right for the safe administration of criminal justice when a High Court has made such an order in derogation of some settled principle of law, or when the order is found to be perverse or arbitrary. In the present case, while allowing the bail petition of Respondent No. 2 and making the impugned order the High Court has acted against the above said settled principle of law, and its finding recorded on the basis of an unsubstantiated cross-version is perverse, that is, against the weight of the material available on record of the case. Therefore, we convert this petition into appeal and allow the same: the impugned bail granting order is set aside and the

bail petition of Respondent No. 2 is dismissed. Respondent No. 2 shall surrender before the trial Court.”

Since Respondent No. 1 was not entitled to grant of pre-arrest bail (as discussed above), so submission of challan, in the peculiar facts and circumstances of the case, cannot place any embargo for cancellation of bail and case of “Amir Faraz versus The State” (2023 SCMR 308) can be advantageously referred in this regard.

8. In view of what has been discussed above, impugned order dated 2.11.2023 passed by learned Additional Sessions Judge, Lahore, whereby Ghaneem Aabir (Respondent No. 1/accused person) has been granted pre-arrest bail in the case, is hereby set aside; resultantly, pre-arrest bail granted to Respondent No. 1 vide aforementioned impugned order is hereby recalled. With this observation, instant petition stands allowed. It is, however, clarified that observations made herein are just tentative in nature and strictly confined to the disposal of instant bail petition. Station House Officer, Police Station Civil Lines, District Lahore shall proceed in accordance with law.