M H Nasrallah and Associates

عدالت کی طرف سے جسمانی ریمانڈ منظور کرنے کے 18 اہم اصول

18 Basic Principles For Granting Physical Remand

Basic Principles For Granting Physical Remand

Following principles are laid by High Court for grant of “Physical Remand”.

✍️(1) During first 15 days, the Magistrate may authorise the detention of the accused in judicial custody liberally but shall not authorise the detention in the custody of the police except on strong and excep¬tional grounds and that too, for the shortest possible period;

✍️(2) The Magistrate shall record reasons for the grant of remand.

✍️(3) The Magistrate shall forward a copy of his order passed under section 167, Cr.P.C. to the Sessions Judge concerned.

✍️(4) After the expiry of 15 days, the Magistrate shall require the police to submit complete or incomplete challan and in case,

the challan is not submitted, he shall refuse further detention of the accused and shall release him on bail with or without surety.

✍️(5) After the expiry of 15 days, no remand shall be granted unless, the application is moved by the police for the grant of remand/ adjournment.

✍️(6) The application moved by the prosecution/ police after the expiry of 15 days of the arrest of the accused, be treated as an application for adjournment under section 344, Cr.P.C.

✍️(7) Before granting remand, the Magistrate shall assure that evidence sufficient to raise suspicion that the accused has committed the offence has been collected by the police and that further evidence will be obtained after the remand is granted.

✍️(8) The Magistrate shall not grant remand /adjournment in the absence of the accused.

✍️(9) The Magistrate should avoid giving remand /adjournment at his residence.

✍️(10) The Magistrate shall give opportunity to the accused to raise objection, if any, to the grant of adjournment /remand

✍️(11) The Magistrate shall record objection which may be raised by an accused person and shall give reasons for the rejection of the same.

✍️(12) The Magistrat

Slm

Join this page and also part of Quran Quiz to learn about Quran and win the Gift 🎁
https://www.facebook.com/profile.php?id=100091461902846&mibextid=ZbWKwL

آسان قرآن کوئز 2023 آسان قرآن کوئز 2023
ہمارا مقصد اس ماہ رمضان المبارک قرآن کی کچھ آیات کو آسان الفاظ میں سمجھنا ہے

🔴Idioms/Maxims/ Proverbs:

1. Death defies the doctor.
*موت کا کوئی علاج نئیں*
2. Death keeps no calendar.
*موت کا کوئی اعتبار نئیں*
3. Adversity flatters no man.
*مصیبت میں کوئی کسی کا ساتھ نئیں دیتا*
4. Taking up old quarrels.
*گڑےمڑدے اکھاڑنا*
5. Better alone than in a bad company.
*بری صحبت سے اکیلا بھلا*
6.To blow one's own trumpet.
*اپنے منہ میاں مٹھو*
7. A bad name is worse than a bad deed.
*بد آ چھابد نام برا*
8. A wolf in sheep's clothing.
*بغل میں چھری منہ رام رام*
9. Prevention is better than cure .
*پرہیز علاج سے بھتر ھے*
10. It takes two to make a quarrel.
*تالی ایک ھاتھ سے نیں بجتی*
11.As many mouths, so many opinions.
*جتنے منہ اتنی باتیں*
12. Near the church farther from God.
*چراغ تلے اندھیرا*
13. A guilty conscious needs no accuser .
*چور کی داڑھی میں تنکا*
14.There is no cure to bad luck.
*تقدیر کے آ گے تدبیر کی نیں چلتی*
15. Where there is rise in your dish, I'm your companions.
*جہادیکی بھری پرات وہیں گنوائی ساری رات*
16. A man is known by the company.
*آ دمی اپنے دوستو سے پہچناجاتاہے*
17. A tree known by it's fruits .
*درخت اپنے پھل سے پہچانا جاتاہے*
18. Murder will out.
*خون چھپائے نئیں چھپتا*
19. Cursed cows have shot horns.
*خدا گنجے کوناخن نہ دے*
20. Early to bed early to rise makes a man healthy wealthy and wise.
*رات کو جلدی سونا اور سویرے اٹھنا سب کامو سے بھتر ھے*
21. Speech is sliver but silence is gold.
*سب سے بھلی چپ*
22. A fair face may hid a foul heart.
*شکل مومنا کرتو ت کافراں*
23. Society moulds man.
*صحبت انسان کو بناتی ھے*
24. A word to the wise .
*عاقل کو اشارہ کافی ھے*
25. Pride hath a flat .
*غرور کاسر نیچا*
26.Trerr human, to forgive divine.
*غلتی کرناانسان کا کام بخشنارحمان کا کام*
27. To owe is woe۔
*قرض بری بھلا ھے*
28. Contentment is blessing.
*قنا عت بڑی چیز ھے*
29. Evil pursuit brings evil repute.
*کوئلو کی دلالی میں منہ کالا*
30. Birds of a feather flock together.
*کند ہم جنس باہم

اگر کؤی مالک اپنی جائیداد کو بیچ دے اور وہ اپنی حیات میں اس جائیداد کو آگے ٹرانسفر ہونے پر اعتراض نہیں کرتا تو اسکے ورثاء بعد از اسکے مرگ اس پراپرٹی کی ٹرانسفر کو چیلنج نہیں کرسکتے

2023 CLC 252

It is clear that Mst. Safia Latif had sold the property in dispute during her lifetime, number of alienations took place thereafter which she never challenged despite having knowledge of the transactions which leads to no other conclusion except that she was fully conscious that the property was lawfully sold by her in favour of Mst. Bashiran Bibi who subsequently lawfully sold it in favour of other buyers thereafter. The deceased having not challenged the transactions and the documents despite knowledge during her lifetime, the appellant as an heir did not have any locus standi to file a suit to challenge the transaction of the deceased after her demise in view of the settled law and that the suit having been instituted after 23 years was time-barred and that the yarn spun by the appellant to lay an explanation for the late institution of suit was proved to be false. The trial court did analyze the entire evidence in its proper perspective and thereafter concluded that the suit instituted by the appellant was liable to be dismissed. Findings so recorded do not suffer from any misreading and nonreading of evidence or from any error of law or jurisdiction so as to warrant interference.

باپ کی طرف سے نابالغ بیٹے کے حق میں کیا گیا ہبہ/تملیک منسوخ یا واپس نہ ہو سکتا ہے
باپ یا گارڈین کی طرف سے نابالغ بیٹے کے حق میں ہبہ/تملیک کی صورت میں قبضہ کی منتقلی ضروری نہ ھے
PLD 2022 SC 395

VVI. MUST READ JUDGEMENT.

(1) The gift of immovable property by a father under the Muhammadan Law in favour of his minor son could not be revoked.
(2) No transfer of possession is required in case of gift by a father to his minor child or by a guardian to his ward.
(3) Section 123 and 129 of the Transfer of Property Act are not applicable to the hiba envisioned under the Muslim Law.
(4) When the donor and the donee are related within the prohibited degree, a gift made cannot be revoked.

VVVI.
MUST READ JUDGEMENT.

کمپنی کے خلاف بھی زیر دفعہ 489 ایف ت پ مقدمہ درج ہو سکتا ہے.
کمپنی کی طرف سے چیک پر دستخط کرنے والے کیخلاف زیر دفعہ 489 ایف ت پ کب مقدمہ درج ہو سکتا ہے؟
i). Is criminal liability under section 489-F PPC attributable to a company?

ii). Does the person who signs the cheque on behalf of the company have any criminal liability under section 489-F PPC?

Generally, liability under criminal law is subject to proof of fault (mens rea) on the part of the accused person coinciding with his act or omission (actus reus). The Latin maxim "actus non facit reum nisi mens sit rea" (an act itself does not constitute guilt unless done with a guilty mind) encapsulates this principle.

In Pakistan, the legislature may allow prosecution of corporations through a special law. Section 11 of the Pakistan Penal Code, 1860, 13 embodies the concept of corporate criminal liability under the general law. According to that section, the term "person" "includes any company, association, or body of persons, whether incorporated or not.

The term “whoever” in section 489-F PPC encompasses all offenders without distinction, whether natural or juristic persons. Resultantly, criminal liability for dishonestly issuing a bad cheque is attributable to a company and it can be prosecuted.

The criminal liability under section 489-F PPC of the person signing the cheque on the company’s behalf should depend on his role, position and authority within the company. We have already seen that the mens rea of those managing the company’s affairs, and its directing mind and will, may be attributed to it in certain circumstances. However, the prosecution must prove that that particular person was in-charge of the company's operations at the time of the commission of the offence. It is also important to point out that the offence under section 489-F PPC is not one of strict liability. Penal consequences depend on proof of dishonesty.

Crl. Misc. No. 52233/B/2022
Kabeer Akbar vs The State etc.
08-12-2022

2023 SCMR 139
منشیات مقدمات میں محفوظ تحویل وراہداری موقع سے پولیس اسٹیشن اور پولیس اسٹیشن سے لیبارٹری تک زبانی گواہی اور دستاویزات ریکارڈ کے ذریعے ہر ایک لمحہ ہر قدم کو ثابت کرنا چاہیے اور اس چین میں سنگل سٹاپ/بریک نہیں ہونا چاہیئے اور اگر استغاثہ سے چین میں سنگل بریک آگیا تو چاہے بھاری مقدار منشیات کیوں نہ ہو یا کیس کیتنا اچھا کیوں نہ بنا ہو،ملزم ہر صورت میں قانون کے رو سے بری ہونا چاہیئے

In the cases of 9(c) of CNSA, it is duty of the prosecution to establish each and every step from the stage of recovery, making of sample parcels, safe custody of sample parcels and safe transmission of the sample parcels to the concerned laboratory. This chain has to be established by the prosecution and if any link is missing in such like offences the benefit must have been extended to the accused.

Very very important

2022 SCMR 1793

O . XVII , R. 3 --- Court may proceed notwithstanding either party fails to produce evidence --- Scope... Expression " to decide the suit forthwith " used in Order XVII , Rule 3 , C.P.C. did not mean to decide or dismiss the suit there and then --- Court , while implementing the provisions of Order XVII , Rule 3 , C.P.C. can take time to go through the available record and then decide the matter --- Even , in case of failure of a party to comply with the order within the contemplation of said provision of law , the Court can ask the failing party to record its statement and then to proceed with the matter --- In such like situation , if the failing party is the plaintiff , who records its own statement , the Court can ask the other party / defendant for defence / rebuttal evidence --- In the present case on failure of the petitioners / plaintiffs to comply with the orders of the Court regarding production of their remaining evidence , the Trial Court , by invoking the provisions of Rule 3 of Order XVII of the C.P.C, struck off their right to adduce evidence and straight away dismissed the suit without even touching merits or available evidence on the record - Petition for leave to appeal was converted into appeal and allowed , and the case was remanded back to the Trial Court to decide the same within a period of three months .

جزوی ادائیگی کی صورت میں مدعی اندراج FIR کا حقدار نہ ہے۔
ضمانت قبل از گرفتاری کنفرم ہوئی۔
2019 PCrLJ 295
بنک میں Payment بھی Stop کروانا ضروری ہے محض چیک بک چوری کی رپٹ درج کروانے کی بناء پر 489-F ت پ کیس ضمانت منظور نہ ہو گی۔
2013 YLR 626
اگر ملزم بطور گارنٹی چیک دینا تسلیم کرے تو ضمانت کا حقدار نہ ہو گا۔
2011YLR 1284
اگر چیک ایشو ہونے کے بعد چھ ماہ کے اندر بنک میں پیش نہ کیا جاۓ تو ملزم ضمانت کا حقدار ہو گا۔
2020 YLR 2064
اگر چیک بطور Security دیا گیا ہو تو ملزم کے خلاف 489- F ت پ کا اطلاق نہ ہو گا۔ ملزم ضمانت قبل از گرفتاری کا حقدار ہو گا۔
2016 PCrLJ 769
اگر چیک ملزم کی بجاۓ کسی دیگر شخص نے جاری کیا ہو تو ملزم ضمانت قبل از گرفتاری کا حقدار ہو گا۔
2014 YLR 882
صرف چیک جاری کرنے کی بناء پر 489F ت پ ثابت نہ ہو گا۔ بلکہ ثابت کرنا ضروری ہے کہ چیک بے ایمانی سے جاری کیا گیا۔
2021 YLR 324
بطور گارنٹی دیۓ گئے چیک پر 489F ت پ کا اطلاق نہ ہوگا۔ ضمانت منظور ہوئی۔
2020 PCrLJ 268

: 2023 PCrLJ 93

For the purpose of summoning accused in the complaint, law requires availability of sufficient ground as provided under Section: 204 Cr.P.C.

: 2023 PCrLJ 93

By now it is well settled that feeling dissatisfied by the registration of case and/or investigation conducted by the police, aggrieved person can file complaint and even against those persons, who were not nominated as accused in the first information report registered by the police regarding the same occurrence; complaint can be filed against different set of accused persons with different set of witnesses as well as with different mode of occurrence as compared to state/challan case but said difference cannot be considered as a bar for entertaining the complaint or proceeding with the same and due to said difference, complaint cannot be dismissed. For issuance of process for the purpose of summoning the accused in the complaint, law only requires availability of “sufficient ground” as provided under Section: 204 Cr.P.C. and not the “reasonable ground”. Term “sufficient ground” for “proceeding” against the accused person in complaint mentioned in Section: 204 Cr.P.C. cannot be equated with term “reasonable ground” for “believing” against the accused that he has been guilty of the offence within the contemplation of Section: 497 (1) Cr.P.C

: 2023 PCrLJ 93

At the time of summoning the accused, material available on record is not assessed in depth i.e. its relevance is seen and not the admissibility or evidentiary value, which was to be established at regular trial. In simple words, there is marked distinction as to the approach regarding appraisal of material on record i.e. averments made in the complaint and statements of complainant and witnesses recorded during preliminary inquiry for determining as to whether process to be issued against the accused or not in the complaint and at the regular hearing/trial of criminal case leading to determination of the guilt or innocence of the accused. So, when Court is satisfied with the material placed before it in the shape of complaint, documents annexed with complaint and statements of complainant and witnesses, then process can be issued for summoning the accused for facing trial. In this case, complainant filed the complaint being eyewitness of the occurrence, got recorded his cursory statement as CW-1 before learned trial court and then said complaint was sent for inquiry under Section 202 Cr.P.C. before learned Area Magistrate, Chunian, who conducted inquiry, recorded statements of two other eyewitnesses as CW-2 and CW-3 and then submitted his inquiry report under Section: 202 Cr.P.C. while clearly mentioning in the same that in his considered opinion after going through the record, all the oral as well as documentary evidence of the complainant, offences under Sections: 302, 148, 149 PPC are made out. Hence, in the light of cursory statements of CWs including the complainant as well as documents produced by the complainant including postmortem report and aforementioned inquiry report, sufficient ground was available on record for proceeding, therefore, learned trial court rightly found that case against the accused persons has been prima-facie made out and summoned them for facing the trial. Needless to add that during trial of the case, accused persons would have every opportunity for cross-examining the complainant and other witnesses, bringing their oral as well as documentary version on the record and to falsify the allegations mentioned in the complaint, they would have also opportunity to produce evidence in their defence as well

Bail citation for 324 and injury cases

S. 497---Penal Code (XLV of 1860), Ss. 337 -F(vi) , 337 -F(i), 337 -L(2) & 324---Munaqqilah, damiyah, punishment for other hurt, attempt to commit qatl-i-amd---Bail , grant of---Bail able offence---Completion of investigation---Scope--- Delayed medical examination---Effect---Allegation against accused was that he gave three blows with a sota hitting the left arm, left hand and below left ear of the injured/ complainant---Injured was examined after a delay of three days without any reasonable explanation---First injury suffered by the complainant on his left hand was punishable under S. 337 -F(vi) , P.P.C. for a term which may extend to seven years as tazir---Prima facie, sufficient material was not available on record to believe that the accused had committed an offence, which fell under the prohibitory clause of S. 497, Cr.P.C.---Intention to kill the complainant was not present, particularly when, after sustaining an injury, the complainant fell down and was entirely at the mercy of accused persons, but the accused persons despite having weapons, continued to cause injuries on the non-vital organs of the complainant---Applicability of S. 324, P.P.C. was yet to be determined during the course of trial---Co-accused persons, who were also attributed role of beating the complainant, were declared innocent during the investigation and said investigation was not challenged by the complainant---Investigation against accused had been finalized---Allegations against accused were yet to be proved through evidence in the court, as such further detention of the accused served no fruitful purpose--- Case of accused fell within the ambit of cases where grant of Bail was a rule---Petition for grant of post-arrest Bail was accepted, in circumstances.

2020 YLRN 23 LAHORE-HIGH-COURT-LAHORE
Side Appellant : BHAI KHAN
Side Opponent : Stat
Ch.m.maroof Adv Highcourt.

Very Important
👇

PLJ 2020 Lahore (Note) 183
[Multan Bench, Multan]
Present: Mujahid Mustaqeem Ahmed, J.
MUHAMMAD ASIF--Petitioner
versus
JUDGE FAMILY COURT and others--Respondents
W.P. No. 16740 of 2018, heard on 6.9.2018.
West Pakistan Family Court Act, 1964 ( # # of 1964)--
----S. 10(5), (6)--Constitution of Pakistan, 1973, Art. 199--Constitutional petition--Suit for recovery of dower & dissolution
of marriage--Decreed--Appeal--Dismissed--Interpolation and tempering of nikahnama--After thought plea--Non-challenging of entries of Nikahnama--Ignoration of provision of law by Courts below--Excess of jurisdiction--Modification in judgments--Direction to--Entitlement for recovery of residential house--Counsel for petitioner could not point out any misreading or non-reading of evidence by Courts below and as such this Court is of considered view that Courts below were fully justified to discard such after-thought plea--Courts below were not justified to decree total claim of respondent for recovery of Haq-ul-Mehr--In view of Sub-Section 5 & 6 of Section 10 of Act, wife could be directed to surrender upto 50% of deferred dower and upto 25% of admitted prompt dower to husband--Whereas in instant case, Courts below have totally ignored this provision of law--As such impugned judgments being contrary to law and in excess of jurisdiction are not sustainable--Petition was dismissed. [Para 10, 11 & 12] A & B
20002 SCMR 1408, PLD 2016 SC 613 and 2009 SCMR 1458 ref.
Malik Sajjad Haider Maitla, Advocate for Petitioner.
Mr. Abdul Samad Ali, Advocate for Respondent No. 3.
Date of hearing: 6.9.2018.
Judgment
By filing the instant writ petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner has assailed the legality and propriety of the judgments passed by learned Courts below, by which suit of Iram Bibi-Respondent No. 3 (respondent) for recovery of dower stood decreed.
2. The summarized facts of this family litigation, necessary for adjudication of this writ petition are that petitioner and respondent were married on 13.03.2016 vide 'Nikah Nama' Exh.P2, against Haq-ul-Mehr Rs. 2000/- in cash. The petitioner also undertook to give a residential house consisting 1-Kanal land (residential house) to respondent and 3-Tola gold ornaments as Haq-ul-Mehr. Just two months after the marriage, the respondent filed a suit for multiple reliefs i.e (i) suit for dissolution of marriage and (ii) for recovery of dower i.e residential house and 3-Tola gold ornaments as per column No. 15 and No. 16 of Nikah Nama'.
3. The suit was resisted by the petitioner mainly on the grounds that it was love marriage and entries in 'Nikah Nama' against column No. 15 and 16 were forged, unauthorized and as such he was not bound to pay claimed "Haq-ul-Mehr'.
4. On 21.07.2016, the pre-trial reconciliation efforts ended in failure and consequently decree for dissolution of marriage was passed in favour of respondent on the basis of 'Khula' subject to surrender of 25% of prompt paid dower. To resolve the remaining controversy, following issucts were framed:--
ISSUES
i. Whether plaintiff is entitled to decree for recovery of 01 Kanal of land alongwith alleged constructions within limits of Tibba Mustaqil Darmiani worth Rs. 08/- lacs on account of her dower as is prayed by her in her plaint? OPP.
ii. Whether plaintiff is entitled to decree for recovery of 75% of 03 "TOLLAS" of golden ornaments worth Rs. 1,80,000/- as is prayed by her in her plaint? OPP.
iii. Whether plaintiff is available with cause of action & locus standi to institute this suit? OPP
iv. Whether defendant is entitled to recover special costs from plaintiff, if so? Quantum thereof? OPD
v. Relief.
5. Both the parties led evidence in support of their respective claims and vide judgment and decree dated 28.02.2017, passed by learned Judge Family Court, suit of the respondent was decreed in the following terms:
'A. Plaintiff shall be entitled to recover from defendant 01 Kanal of land alongwith constructions consisting up of four walled boundary & hand pump etc. located heated at Tibba Mustaqil Darmiani.
B. Plaintiff shall also be entitled to recover from defendant 75% of 03 "TOLLAS" of golden ornaments."
6. The petitioner feeling dissatisfied with the impugned judgment and decree assailed the same before learned -Additional District Judge, Kot Addu but the same was dismissed vide judgment and decree dated 06.11.2017, while affirming the findings of learned Judge Family Court, Kot Addu.
7. Feeling dissatisfied with the above judgments of the learned Courts below, the petitioner has approached this Court by filing this writ petition in terms of Article 199 of the Constitution of the, Islamic Republic of Pakistan-1973, with the following prayer:-
" .... that this writ petition may kindly be accepted and impugned judgment and decree dated 28.02.2017 and judgment and decree dated 06.11.2017 be declared as null and void and the same may kindly be set aside in the larger interest of justice and suit of the Respondent No. 3 may very kindly be dismissed."
8. Arguments heard. Record perused.
9. The main contention of learned counsel for the petitioner is that it was love marriage, so, no stipulation regarding giving residential house and 3-tola gold ornaments as dower was settled between the parties and entries in this regard in 'Nikah Nama' Exh.P2 are based on interpolation and tampering. Suffice to observe that this plea of the petitioner could not find favour by learned Courts below, who have out-rightly rejected petitioner's this plea. The learned Judge Family Court while attending to this factual controversy has concluded as under:
"Nikahnama of parties is owned and admitted by defendant, but he alleged that entries thereof so based for plaintiff's claim are forged & fabricated by plaintiff or her parents or her father alone in collusion with nikahkhawan. In said regard, he was obliged to mention down & elaborate relevant details as to when, where, how and by whom such developments was effected. He did not move to get produce original record of said nikahnama, relevant nikah khawan, nikah registrar, witnesses to said nikahnama etc. He was unable to produce "PERT" of nikahnama used to be handed over to groom at the time of nikah. Further significant to mention here that in such like marriages, in prevalent social situation, it is the groom who uses to make up arrangements for such a love marriage including travelling, nikah ceremony, nikah khawan & witnesses etc. Relevant spot and attendants of such marriage including nikah khawan always remain unfamiliar with a bride of love marriage. So, even probabilities of collusive arrangements of plaintiff or her family members with nikah khawan to force in alleged developments in record are not believable at all."
10. During course of arguments, learned counsel for the petitioner could not point out any misreading or non-reading of evidence by the learned Courts below and as such this Court is of the considered view that the learned Courts below were fully justified to discard such after-thought plea.
11. It is settled law that the presumption of truth is attached to the entries of "Nikah Nama" being a public document, whereas as per petitioner's own case, he has not assailed the "alleged" un-authorized entries of "Nikah Nama" before Deputy Commissioner concerned or custodian of 'Nikah Register' or any other competent forum. It means that plea of the petitioner that entries in "Nikah Nama" are unauthorized and made afterwards is without any foundation. In case reported as 'Jan Muhammad Versus Mst. Salamat Bibi and others' (2002 SCMR 1408), 'Abdul Malik and others Versus Mst. Subbha Mai alias Sabbah Mai' (2016 MLD 925 Lahore) and 'Mst. Nabeela Shaheen and others Versus Zia Wazeer Bhatti and others' (PLD 2015 Lahore 88) it has been laid down that 'Nikah Nama' is public document and presumption of truth is attached to the entries made therein. The learned Courts below have given due consideration to the version of the petitioner and rightly discarded the same.
12. The petitioner vide stipulation against Column No. 15 of Nikah Nama' (Exh.P2) has undertaken to transfer a residential house consisting 1-Kanal land in favour of respondent. In view of case 'Mst. Yasmeen Bibi Versus Muhammad Ghazanfar Khan and others' (PLD 2016 Supreme Court 613) such undertaking can be treated as part of dower to respondent in consideration of marriage, whereas in view of case Saddia Usman versus Muhammad usman Iqbal (2009 SCMR 1458), this dower settled between spouses is "Deferred Dower". Under Section 10(5) of the West Pakistan Family Courts Act, 1964 (The Act) in case of passing a decree for dissolution of marriage through 'Khula', the Court can direct a wife to surrender upto 50% of her deferred dower and 25% of her admitted prompt dower to husband, whereas under sub-section 6 of the aforesaid Section, subject to sub-section 5 in a decree for dissolution of marriage, the family Court may direct the husband to pay whole or part of the deferred dower to a wife. As noticed earlier, the parties have entered into marriage on 13.03.2016 and matrimonial dispute arose between them within two months of marriage, forcing the respondent to approach learned family Court for dissolution of marriage and recovery of 'Haq-ul-Mehr'. In the peculiar facts and circumstances of the caserne learned Courts below were not justified to decree the total claim of respondent for recovery of 'Haq-ul-Mehr. In view of Sub-Section 5 & 6 of Section 10 of the Act, the wife could be directed to surrender upto 50% of the deferred dower and upto 25% of the admitted prompt dower to the husband. Whereas in the instant case, the learned Courts below have totally ignored this provision of law. As such impugned judgments being contrary to law and in excess of jurisdiction are not sustainable. Consequently the instant petition is partly allowed. The impugned judgments are modified and respondent is directed to surrender 50% of deferred dower (residential house) measuring 1-Kanal. Consequently, suit of respondent for recovery of dower is decreed to the extent of 50% of deferred dower and respondent will be entitled to recover residential house measuring 10-Marla or its alternate price to be fixed by the learned executing Court. Rest of the decree for dower passed in favour of respondent is in line with Section 10 of the Act and to this extent, the instant petition being devoid of merits is dismissed.
(M.M.R.) Petition dismissed

2023 CLC 193...
اگر چیک پر درج رقم میں سے مدعا علیہ نے جزوی ادائیگی کردی ھو تو آرڈر 37 ض د کے تحت ڈسٹرکٹ جج کے روبرو سمری سوٹ کی بجائے سول جج کی عدالت میں عام دیوانی دعوی دائر ہوگا

There is no denial of facts that disputed cheque No.641730 was issued on 12.07.2006, suit was instituted on 21.10.2009 on the basis of cheque amount and the respondent/plaintiff admittedly received an amount of Rs.100,000/- from the appellant/defendant in the year 2008 before filing suit. While appearing as PW-1, respondent/plaintiff conceded about the part-payment in cross-examination but by concealing this fact intentionally, failed to plead this fact in his plaint and simply filed a suit for recovery of cheque amount. Now the question which comes up for consideration is as to what the expression “sum of amount undertaken or ordered to be paid to payee” means in a case where the admitted liability of the drawer of the cheque gets reduced, on account of part-payment made by him, after issuing the cheque. No doubt, the expression “sum of amount undertaken or ordered to be paid to payee” would mean the amount of the cheque alone in case the amount payable by the drawer but, can it be said the expression “sum of amount undertaken or ordered to be paid to payee” would always mean the amount of the cheque, even if the actual liability of the drawer of the cheque has got reduced on account of some payment(s) made by him towards discharge of the debt or liability in consideration of which cheque in question was issued. If it is held that the expression “sum of amount undertaken or ordered to be paid to payee” would necessarily mean the amount of cheque in every case, the drawer of the cheque would be required to make arrangement for more than the cheque amount payable by him to the payee of the cheque in case of part-payment by the drawer of cheque to the payee. Obviously this could not have been the intention of the legislature to make a person liable to pay more amount than amount payable through cheque. If the drawer of the cheque is made to pay more than the amount actually payable by him, the inevitable result would be that he will have to chase the payee of the cheque to recover the excess amount paid by him. Therefore, it is difficult to take the view that even if the admitted liability of the drawer of the cheque has got reduced, on account of certain payment(s) made after issuance of cheque, the payee would be entitled to present the cheque for the whole of the amount to the banker for encashment or in such a case, if cheque is dishonoured for want of funds, a cause of action compulsorily will arise to file a suit for recovery of cheque amount under order # # CPC. I am also conscious/aware of the situation where with a view to circumvent and get out of summary procedure under Order # # CPC, the drawer of a cheque can make part-payment of the amount of the cheque but this can easily be avoided by payee of the cheque, either by taking new cheque of the reduced amount from the drawer or by making an endorsement through a note on the cheque by the drawer acknowledging the part-payment and then presenting the cheque for encashment of only the balance amount due and payable to him. In fact, Section 56 of Negotiable Instrument Act, 1881 specifically provides for an endorsement on a Negotiable Instrument with regard to part-payment and the instrument can thereafter be negotiated for the balance amount. If the drawer and payee of cheque adopt the procedure given in section 56 of Negotiable Instrument Act, then it would be open to the payee of the cheque to present the cheque for payment of only that much endorsed balance amount which is due to him. After the receipt of admitted partpayment from the amount of cheque before filing the suit, the payee can neither present the cheque for encashment without adopting procedure under Section 56 of Negotiable Instrument Act, 1881 nor can file suit for recovery of cheque amount while invoking special jurisdiction under Order # # CPC in new circumstances/ situation which is a subsequent agreement rather will file a suit for recovery of balance amount of cheque before an ordinary civil court of plenary jurisdiction. Generally, there is no cavil to the proposition that Order # # CPC does not restrict person(s) /plaintiff(s) from filing an ordinary suit for recovery of cheque amount before an ordinary civil court of plenary jurisdiction rather provides discretion to either institute a suit by invoking special jurisdiction under Order # # CPC or to file the same under ordinary procedure before ordinary civil court of plenary jurisdiction and there exists no legal compulsion to restrict the choice of person(s)/plaintiff(s).

In view of the foregoing discussion, I am of the affirmed view that the learned trial court erred in law in decreeing the suit vide impugned judgment dated 30.10.2014, hence, the same is hereby set-aside by allowing this regular first appeal on the question of jurisdiction with the direction to learned Additional District Judge to return the plaint under Order VII Rule 10, CPC to the respondent/plaintiff for filing the same before an ordinary civil court of plenary jurisdiction...