LAW Points By JK

24/11/2023

2023 SCMR 16
سپریم کورٹ نے قبل کراچی میں شاہ زیب خان نامی نوجوان کے قتل کے مقدمے میں مرکزی ملزم شاہ رخ جتوئی سمیت تمام ملزمان کی سزاؤں کے خلاف اپیل منظور کرتے ہوئے انھیں مقدمے سے بری کر دیا۔
2023 SCMR 16

The courts adjudicate the matters without being influenced by passions. The prime duty of the Court is to do justice according to its own conscience. While dealing with the life and liberty of an accused, utmost care and caution is required to be exercised by the Courts of law because slight carelessness on their part may deprive an accused person/citizen of his life and may cause irreparable hardship and damage to his family.

Anti Terrorism Act is a special law enacted with a special intent and purpose, which can be gathered from the bare reading of Preamble of the said Act. It is principle of legislation that preamble of any enactment is always considered as grundnorm of the legislation, which expresses the postulates to attract the said provision of the enactment according to its scope of legislation. As stated above, the Anti-Terrorism Act is a special enactment and special enactment needs to be taken in perspective of its own object. Any departure from same would be negation of its object and spirit. A preamble of a statute is an introductory and expressionary statement that explains the very purpose and underlying philosophy behind the enactment. To better understand the scheme of Anti Terrorism
Section 6 defines terrorist acts, Section 7 provides punishment for such acts whereas Section 8 prohibits acts intended or likely to stir up sectarian hatred mentioned in clauses (a) to (d) thereof. The word “sectarian” has been described as “pertaining to, devoted to, peculiar to, or one which promotes the interest of a religious sects, or sects, in a bigoted or prejudicial manner”. However, the word “heinous offence” has not been described in the Act. In common parlance “heinous offence” means an offence which is serious, gruesome, brutal, sensational in character or shocking to public morality and which is punishable under laws of the land. A bare reading of the Anti Terrorism Act reveals that an Anti-Terrorism Court has been conferred jurisdiction not only to try all those offences which attract the definition of ‘terrorism’ provided by the Act but also some other cases, which have been specified in Third Schedule of the Act involving heinous offences which do not fall in the said definition of terrorism. The sole purpose of trying such offences by the Anti Terrorism Court is for speedy trial of such heinous offences irrespective of the fact that they do not fall within the ambit of ‘terrorism’.

Specified heinous offences are only to be tried by an Anti-Terrorism Court and that court can punish the person committing such specified heinous offences only for commission of those offences and not for committing terrorism because such offences do not constitute terrorism. For the purposes of further clarity on this issue it is explained for the benefit of all concerned that the cases of the offences specified in entry No. 4 of the Third Schedule to the AntiTerrorism Act, 1997 are cases of those heinous offences which do not per se constitute the offence of terrorism but such cases are to be tried by an Anti-Terrorism Court because of their inclusion in the Third Schedule. It is also clarified that in such cases of heinous offences mentioned in entry No. 4 of the said Schedule an Anti-Terrorism Court can pass a punishment for the said offence and not for committing the offence of terrorism. It may be pertinent to mention here that the offence of abduction or kidnapping for ransom under section 365-A, PPC is included in entry No. 4 of the Third Schedule and kidnapping for ransom is also one of the actions specified in section 7(e) of the AntiTerrorism Act, 1997. Abduction or kidnapping for ransom is a heinous offence but the scheme of the Anti-Terrorism Act, 1997 shows that an ordinary case of abduction or kidnapping for ransom under section 365A PPC is merely triable by an Anti-Terrorism Court but if kidnapping for ransom is committed with the design or purpose mentioned in clauses (b) or (c) of subsection (1) of section 6 of the Anti-Terrorism Act, 1997 then such offence amounts to terrorism attracting section 7(e) of that Act. In the former case the convicted person is to be convicted and sentenced only for the offence under section 365-A, P.P.C. whereas in the latter case the convicted person is to be convicted both for the offence under section 365-A PPC as well as for the offence under section 7(e) of the Anti-Terrorism Act, 1997. The same may also be said about the other offences mentioned in entry No. 4 of the Third Schedule to the Act pertaining to "Use of fi****ms or explosives by any device, including bomb blast in a mosque, imambargah, church, temple or any other place of worship, whether or not any hurt or damage is caused thereby", "Firing or use of explosive by any device, including bomb blast in the court premises", "Hurt caused by corrosive substance or attempt to cause hurt by means of a corrosive substance" and "Unlawful possession of an explosive substance or abetment for such an offence under the Explosive Substances Act, 1908". Such distinction between cases of terrorism and other heinous offences by itself explains and recognizes that all heinous offences, howsoever serious, grave, brutal, gruesome, macabre or shocking, do not ipso facto constitute terrorism which is a species apart.” This Court in the seven members’ bench judgment has settled the issue that not every case of grievous bodily injury or harm, damage to private property, doing anything that is likely to cause death or endangers a person’s life etc would amount to terrorism.
Regards M.farooq Khilji Advocate

27/08/2023

2023 P Cr . LJ 1310

Recovery of mobile phone , SIMs and pistol from the possession of the accused --- Reliance --- Accused was charged that he along with his co - accused made a n**e video clip of the son of complainant and thereafter forced him to commit immorality , else they would spread his video clip --- Investigating Officer recovered mobile phone with two SIMS --- Complainant was cross - examined at length , who remained consistent on all material points qua the recovery of pistol , mobile phone and two SIMs --- Investigating Officer also arrested co - accused and got recovered his mobile phone , which was also used for making the alleged n**e films and pictures of several minors , though it was not the case of prosecution that on a particular date or time the alleged made films were made , but the recovered mobile phone was transmitted to Forensic Expert of FIA after getting permission from concerned police official for forensic analysis --- As a result whereof , the Forensic Expert well as USB had been brought on record by the prosecution --- Extraction summary of mobile phone revealed that 22800 images and 839 videos were recovered --- However , the detailed summary appended with present case confirmed making of p**n videos of a hundreds of minors , who had been seduced and sexually exploited , allegedly r***d by the accused , who was also present in majority of the videos and photo images with minor girls and boys --- Circumstances established that the prosecution had proved its case against the accused beyond any shadow of reasonable doubt

23/07/2023

2023 PCrLJ NOTE 110

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

23/07/2023

Sunday 🤔🤔🤔🤔 ready for judgments

09/06/2023

27/05/2023

2023 PCrLJ 834

Ss . 516 - A , 523 & 550 --- Superdari of case property --- Scope Seizure of non - customs paid vehicles under Ss . 550/523 , Cr.P.C ... Superdari of vehicles , refusal of --- Person ' S ' applied for supurdari of the vehicle but the Magistrate rejected the applications and Additional Sessions Judge overturned the order of Magistrate giving direction to conduct inquiry under S. 523 , Cr.P.C. , before taking decision about custody of vehicle and to take action against the petitioner ( official of Border Military Police ) by lodging a case under Art . 155 C of Police Order , 2002 , because he had not reported the matter to Magistrate forthwith as required under S. 523 , Cr.P.C .--- Validity --- In the case , no FIR stood registered for theft or otherwise of vehicle nor it was found in the circumstance that it could have been taken into possession under such S. 550 , Cr.P.C. particularly when there was no evidence of tempering of chassis number etc .--- Even police had no authority to stop or seize non - custom paid vehicle because Customs Act , 1969 , did not authorize police to take such action which authority rested with Customs Officers -- If it was mistakenly taken , even then subordinate officer was bound to inform the Officer Incharge of Police Station and not the Magistrate as S. 550 , Cr.P.C. provided --- Petitioner had thus performed his duty and no breach or violatin could be attributed to him --- However , it was the duty of the Officer Incharge of Police Station to inform the Magistrate if he could have found that conditions of said section were met , otherwise he was under duty to inform the Custom Officers for further proceedings , which was in consonance with the Customs Act , 1969 --- Section 523 , Cr.P.C. , required that seizure of property would be forthwith reported to a Magistrate which did not mean Area Magistrate in all cases but one who was authorized under the law to deal with property so taken --- If the vehicle was seized under Control of Narcotic Substances Act , 1997 , only Court concerned would deal with the vehicle and not the Area Magistrate --- Similar was the case for all other special laws --- Police was bound to hand over such vehicle to Directorate of Intelligence and Investigation , of FBR , which was the right course and involvement of Magistrate in such matter was not required under the law who could only tackle the properties mentioned in S. 523 . Cr.P.C --- Provisions of special law prevailed over general law --- Special procedure had been given in the Customs Act , 1969 , with respect to seizure of non - custom paid vehicle and dealing with offence therein --- Customs Act , 1969 , authorized the police to take possession of any vehicle only for the assistance of Customs Officers and not for any other purpose --- Thus , police was not authorized to seize non custom paid vehicle --- If the police had taken the vehicle into custody , it did not bind them to inform the Magistrate about seizure when they were already in correspondence with Directorate of Intelligence and Investigation of FBR --- Additional Sessions Judge should not have passed order for registration of case because official acts of police taken in good faith were protected under Art . 171 of Police Order , 2002 --- Constitutional petition was allowed by setting aside impugned order , with the direction that Customs Authorities would have recourse to legal remedy available under the law for custody of vehicle and confiscation thereof .

27/05/2023

2023 PCrLJ 850

Circumstantial evidence --- Scope - In case circumstantial of evidence , the prosecution is obliged to show that different pieces of evidence brought on the record are inter - linked so as to make a single chain whose one end touched the dead person and the other clenched the neck of the accused --- Evidence must be of a quality to be incompatible with the innocence of the accused -- Any missing link in the chain would destroy the entire prosecution case . Junaid kundiAdvocate

27/05/2023

2023 PCrLJ 810

Inviolability of dignity of man- Torture during investigation --Scope - Torture in any form to extract evidence is prohibited . Regards M.farooq Khilji Advocate

27/05/2023

2023 SCMR 401

S. 499 ---Bail, grant of---Conditions imposed on accused for grant of bail---Principles.

In order to ensure future attendance, the accused is required to submit bail bond under section 499 of the Code of Criminal Procedure, 1898 (the Code) and while asking the accused to submit sureties, the Court is not required to impose any condition upon the accused for further depositing of money. In case of default or non-appearance in Court, the Court may proceed to forfeit such bail bond under section 514 of the Code.

When the Court comes to a conclusion that an accused is entitled to be released on bail then of course such bail granting order cannot be subjected to riders and conditions. While admitting to an accused person on bail, actually he is released from the custody of the authorized officer/judicial lockup of the Court and his custody is entrusted to a person known as his surety, who is bound to produce him in Court at a specific time and place to answer the charge against him. Even no condition can be imposed upon an accused person in order to desist him from the repetition of the offence. This Court, since the year 1963 till date, has dis-approved the imposition of any condition while granting bail to an accused person as section 499 of the Code, under which bail bonds are submitted in the Court, is very much clear that bail bonds are sufficient for release of a person/accused.

(a) in terms of section 499 of the Code the Court cannot require an undertaking from an accused person before granting bail to desist from the repetition of the offence with which he is charged, as a condition precedent to the grant of bail; such a condition cannot be incorporated in a bail or surety bond itself;

(b) when bail is granted to an accused not as a mean of enforcing recovery of fine, but on its own merits, the same could not be made dependent on the payment of fine; any such condition would amount to curtail his liberty, for which he otherwise is entitled;

(c) grant of bail cannot be subjected to riders and conditions, if otherwise, a case stands made out; and

(d) an accused seeking bail, after submitting bail bond through sureties, desire transfer of his custody to his sureties who undertake his production as and when required by the Court and for that he has to make out a case in accordance with the law applicable thereto; he cannot be allowed or required to barter his freedom, and imposing any condition other than submission of sureties would be against the dictum laid down by this Court.

27/05/2023

*Application under section 12 (2) C.P.C*

Limitation imposed by law on filing of suit would apply to such application for being a substitute for a suit”.(18) “Limitation for filing an application under section 12 (2) C.P.C. was three years and present application was time barred…. No application for condonation of delay has been filed to justify the delay of each and every day…. Application under section 12 (2) C.P.C. was dismissed in circumstances”.(19)

References:

1. PLD 2009Lahore 63; PLD 2010 Karachi 400;

2. PLD 2015 Peshawar 39

3. PLD 2013 SC 478

4. 2011 SCMR 1854

5. 1993 SCMR 1171, 1999 SCMR 1516, PLD 2009 Karachi 123,

6. PLD 2013 Lahore 51

7. PLD 2015 HC (AJ&K) 7

8. 2015 SCMR 615, 2015 CLC 594 (Sindh)

9. PLD 2014 Peshawar 1

10. 2015 CLD 390 (Sindh)

11. 2008 SCMR 236

12. PLJ 2008 Lahore 492

13. PLD 2013Lahore 51

14. 2004 YLR 1066, 1997 MLD 2003, PLD 2002 Peshawar 84,

15. 2007 CLC 1507, 2005 YLR 3030, 1993 SCMR 2096

16. PLD 2015 HC (AJ&K) 7, 2008 CLC 164 (Lahore)

17. PLD 2013 Lahore 51

18. 2011 SCMR 551

19. 2015 YLR 276 (Sindh)

27/05/2023

Divorced and unmarried daughter is entitled to receive maintenance from her father.

2007 CLC 1517
2019 CLC 1261
2018 YLR Note 247
2017 CLC 35
2015 PLD 30 Queta HC
2015 pld 673 Lah
2010 MLD 695
2006 YLR 2897 Lah
1994 MLD 1158 Lah
1994 MLD 1771 Lah
2004 CLC 217 Lah
2019 PLD 102 Lah
2015 pld 683 Lah
2014 YLR 1563
2014 MLD 351.