Rafiq Khan Advocate High Court LLM

PLJ 2021 Lahore 645
[Multan Bench, Multan]

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

----S. 164--Jurisdiction of magistrate--Petitioner contracted marriage with her free will and consent against wishes of her parents--Her mother got registered a criminal case at Rawalpindi against her husband etc.--Petitioner filed application before judicial magistrate at Multan for recording her statement u/S. 164, Cr.P.C. which is dismissed with observation to approach competent Court at Rawalpindi--It is not imperative that magistrate receiving or recording a confession or statement should be a magistrate having jurisdiction--Any aggrieved person may ask for recording statement u/S. 164, Cr.P.C. to magistrate--Petition is allowed and judicial magistrate is directed to record statement of petitioner u/S. 164, Cr.P.C. 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

عدالت نے خاوند کو بیوی کا سامان جہیز واپس کرنے کا حکم دیا۔اور اسکی مالیت 8لاکھ 31 ہزار 7 سو روپے مقرر کی۔خاوند نے 12 سال تک نہ سامان جہیز اور نہ ہی رقم واپس کی۔کیس سپریم کورٹ تک آیا۔سپریم کورٹ نے قرار دیا کہ خاتون کو اسکےزیورات اور سامان جہیز میں شامل چیزوں کے آج کے ریٹ کے حساب سے پیسے دیے جائیں۔8 کے بجائے خاوند کو ڈبل دینا پڑا۔
2017 SCMR 321. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

2022 M L D 1740

Summoning of witnesses---Scope---Application filed by complainant for summoning of witnesses who had already been examined was declined---Validity---Complainant intended to re-examine/cross-examine some of the important prosecution witnesses i.e. Investigating Officer, ASI and Inspector---Admittedly, said witnesses had been examined and cross-examined---Application for recalling said witnesses was moved after considerable delay---Complainant had shown his anxiety regarding some portion of the deposition of the said witnesses as such he intended to cross-examine them on that particular portion of their evidence---Under the provision of Art.150 of the Qanun-e-Shahadat, 1984, the Trial Court might permit a party to cross-examine his own witness but for invoking the said provision, such permission must be sought at the very time when the witness was still under oath and had deposed something contrary to the interest of the party who had produced him---If the court considered that the witnesses was speaking the truth and he was not deposing in a twisted manner and contrary to his previous statement proposefully, then the court might refuse to allow such a request---In the present case, the application was moved after weeks even months of the examination of the witnesses, as such, it was not considerable---Case of the complainant was that some important prosecution witnesses during recording of their evidence had given testimony, which was inconsistent with the interest of the complainant---In such a situation, a prosecution witness could not be impeached by declaring him hostile and permitting the counsel for the complainant or even the public prosecutor to cross-examine the said witness---Prosecution and complainant could only be justified in seeking the impeachment of a prosecution witness when during his examination-in-chief or cross-examination, he had given testimony, which was inconsistent with some previous statement by him---In the present case, the investigator and the other official witnesses had not deposed anything, which was inconsistent with any of their previous statement, as such it would not be justified to subject them to cross-examine by the complainant or public prosecutor---
Hostile witness---Scope---Nevertheless, in every case when a request was made for cross-examining a prosecution witness after declaring him hostile, it was under the discretion of the Trial Court to allow or disallow such a request---Article 150 of the Qanun-e-Shahadat, 1984, laid down that the Court might, in its discretion, permit a person who called a witness to put any question to him which might be put in cross-examination by the adverse party---No doubt, the credit of a witness could be impeached by the adverse party but if a party intended to impeach his own witness, the same could only be done with the permission of the Court.

ORDER

FAHIM AHMED SIDDIQUI, J.----This Criminal Revision Application is filed to question the legality of the order dated 07-8-2020 passed by learned Ist Additional Sessions Judge, Ghotki, in Sessions Case No. 510/2013. Through the impugned order, the learned trial judge has declined to entertain an application filed by the applicant/complainant under section 540, Cr.P.C., and refused to recall some witnesses who have already been examined.

2. Concisely, the facts are that complainant Wajid Ali Shah lodged FIR regarding the murder of his son Saqib Shah. Allegedly, accused Zubair Ahmed Chachar used to ply his motorbike speedily with noisy horns, hence annoyed with the deceased son of the complainant, as he was restraining him to do so. In the night-time of the day of the incident, the aforementioned accused with his nominated associates entered in the home of the deceased and fired upon him at his temporal region in front of the complainant and other witnesses. After the incident, the accused persons decamped from the scene of offence while making aerial firings for creating harassment. After requisite formalities, the dead body of the deceased was buried. Allegedly, during post burial ceremonies, the relatives and friends of accused persons came to the complainant party and consoled them for settlement and compensation due to which the complainant partly remained calm. However, later on, the accused persons refused to a settlement and compensation, as such the FIR was lodged after getting a direction from the ex-officio Justice of Peace.

3. After lodgement of FIR, the investigation was carried out and after cognizance by the concerned magistrate, the case was entrusted to Additional Sessions Judge-I (MCTC). During the trial, all the prosecution witnesses were examined but since some of the official witnesses have deposed contrary to the interest of the complainant party; therefore, the complainant filed an application under section 540, Cr.P.C. read with Article 150 of Qanun-e-Shahadat Order, 1984. Through the said application, the complainant intended to recall and cross-examine those official witnesses by declaring them hostile but the said application was declined by the trial Court through the impugned order, as such the instant criminal revision application was filed.

4. Mr. Anwar Ali Lohar appearing for the applicant submits that the complainant has every right to cross-examine a witness who has deposed against him. He submits that the investigation officer and other police witnesses have deposed that the complainant has initially reported to them that the deceased has committed su***de. He submits that this fact is contrary to the interest of the complainant and the point of view of the complainant is that nothing of the sort was reported by him to the police. He submits that an application for recalling and cross-examining a prosecution witness can be filed at any moment before pronouncement of the judgment. In response to a query, he submits that a prosecution witness can be declared hostile at any moment during the pendency of the trial. According to him, the law has not forbidden the advocate assisting the prosecution to seek permission to cross-examine a prosecution witness by declaring him hostile. He submits that it is also not necessary to make such a request at the date of recording of evidence but an application for the same effect can be filed even at a belated stage. In support of his contentions, he relies upon Kabir Alam v. The State (2008 PCr.LJ 327) and Yasir Sajjad v. Mst. Rani Nasir and another (PLD 2020 Sindh 596).

5. Mr. Nadir Ali Chachar, the learned counsel for respondent No.2 while opposing the instant application prefers his submissions at length. He submits that after investigation, the case was recommended for cancellation under C-class but the learned Judicial Magistrate took cognizance and the case was sent up for trial. According to him, the investigator and other officials have deposed in the line of investigation and according to the true facts of the case. He continues to argue and draws attention towards the said fact that those prosecution witnesses were not declared hostile by the learned prosecutor and even no application was filed by the applicant on the date of recording evidence. He submits that the application for recalling and cross-examination was filed with considerable delay, which amounts to fill up lacunas of prosecution case, and the same was rightly dismissed. In support of his arguments, he relies upon Muhammad Saleem v. Muhammad Azan and another (2011 SCMR 474) and The State through Regional Director Anti-Narcotic Force Balochistan v. Abdul Wahab and 11 others (2019 MLD 2048).

6. Mr. Deedar Ali Chohan, learned counsel for respondent No. 3 has also adopted the submissions preferred by Mr. Nadir Ali Chachar, and in addition to the same, he submits that there is no need to recall and re-examine or cross-examine any of the witnesses. According to him, the counsel for the complainant can only assist the learned prosecutor and he has no right to seek permission to declare a witness hostile. He points out that the counsel appearing before this Court has also appeared for the complainant before the trial Court.

7. Mr. Aftab Ahmed Shar, learned Additional Prosecutor General, also adopts the submissions preferred by both the learned advocate appearing for respondents. According to him, declaring a witness hostile is something extraordinary, as such the courts usually consider the evidence of a hostile witness with care and caution. He submits that in case of cross-examining those of official witnesses, a chance of severe damage to the prosecution case cannot be ruled out as such the prosecution have rightly avoided declaring them hostile at the time of recording of evidence.

8. I have pondered over this controversy in the light of valued submissions and cited case laws. By applying under Section 540, Cr.P.C, the applicant intends to re-examine/cross-examine some of the important prosecution witnesses i.e. investigating officer ASI Abubakar, ASI Mohammed Aslam Soomro, and Inspector Mumtaz Ali. It is worth noting that these witnesses have been examined and cross-examined on 14-04-2020, 15-05-2020 and 16-06-2020 respectively while the application for recalling those witnesses was moved on 07-07-2020. Hence, it is evident that the application for recalling these witnesses was moved after considerable delay. The counsel for the applicant has shown his anxiety regarding some portion of the deposition of these witnesses as such he intends to cross-examine them on that particular portion of their evidence. It is not disputed that under the provision of Article 150 of the Qanun-e-Shahadat Order, 1984 the trial Court may permit a party to cross-examine his own witness but for invoicing the said provision, such permission must be sought at the very time when the witness was still under oath and has deposed something contrary to the interest of the party who has produced him. It is worth noting that if the court considers that the witness is speaking the truth and he is not deposing in a twisted manner and contrary to his previous statement purposefully then the court may refuse to allow such a request. In the instant case, the application was moved after weeks even months of the examination of the witnesses, as such, it is not considerable.

9. It has been argued by Mr. Chachar that the private pleader engaged by the complainant can only assist the public prosecutor and he has no right to seek permission to cross-examine a prosecution witness by declaring him hostile. In my candid opinion, such contention is not correct. As per the provision of Section 493, Cr.P.C., a privately engaged pleader is required to act under the directions of the public prosecutor but it does not mean that he remains a silent spectator of the trial. I am of the view that he is an active affiliate of the public prosecutor and all his acts if not objected to or disowned by the public prosecutor should be given weight by the trial Court during the trial. Hence, a privately engaged pleader has a right to seek permission to cross-examine a prosecution witness either by himself or though the public prosecutor. However, such a request should be made immediately when the witness is within the witness box and still under oath.

10. Nevertheless, in every case when a request is made for cross-examining a prosecution witness after declaring him hostile, it is under the desecration of the trial Court to allow or disallow such a request. Article 150 of the Qanun-e-Shahadat Order, 1984 lays down that the Court may, in its desecration, permit a person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. No doubt, the credit of a witness can be impeached by the adverse party but if a party intends to impeach his own witness, the same can only be done with the permission of the Court. In the present case, it is the case of the complainant that some important prosecution witnesses during recording of their evidence have given testimony, which is inconsistent with the interest of the complainant. I am of the view that in such a situation, a prosecution witness cannot be impeached by declaring him hostile and permitting the counsel for the complainant or even the public prosecutor to cross-examine the said witness. The prosecution and complainant can only be justified in seeking the impeachment of a prosecution witness when during his examination-in-chief or cross-examination, he has given testimony, which is inconsistent with some former statement made by him. In the present case, the investigator and the other official witnesses have not deposed anything, which is inconsistent with any of their previous statement, as such it will not be justified to subject them to cross-examine by the complainant or public prosecutor. Resultantly, the instant criminal revision application is dismissed.

11. It is clarified that this Court has not expressed any opinion on the merits of the case, or the veracity of any of the witnesses, who have been examined by the trial Court. The trial Court shall proceed with the trial without being prejudiced in any manner by any observation made in this Order... 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

SINGLE DOUBT is SUFFICIENT for AQUITTAL. .
2017 - YLR 28 ( GOLDEN RULE)
2017 - YLR 32 (LAHORE )
2017 - PCRLJ 19 ( LAH )
2016 - PCRLJ 18 ( PESHAWAR )
2017 - CrLJ - 62
2016 - SCMR - 1792
2016 - MLD - 757
1995 - SCMR 1345
2009 - SCMR 230.

DELAY of TWO DAYS in RECORDING STATEMENT OF WITNESSES u/s 161 CrPC is FATAL for PROSECUTION.
2017 - SCMR - 486
2016 - PCRLJ -1112

Art . 22 . IDENTIFICATION PARADE WITHOUT ASCRIBING ROLE of ACCUSED HAS NO EVIDENTIARY VALUE in the EYES OF LAW.
2017 - PCRLJ - 622. . .

POLICE OPINION COULD BE CONSIDERED at BAIL STAGE.
2017 - YLR - 1405.

IDENTIFICATION PARADE NOT HELD BEFORE JUDICIAL MAGISTRATE...
2006 MLD 14
2005 YLR 657
2006 MLD 431
2005 YLR 1404
2006 YLR 673 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM
2005YLR 3151..

Divorce Notice must be sent to both Wife and Union Council ,Otherwise Divorce has no legal value.PLD 2006 SC 457 Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

PLD 2015 SC 327.
How to deal with a situation where the husband refused to own the child?.
Muslim Personal Law is clear and well settled on such subject as it provided that legitimacy/paternity must be denied by the father immediately after birth of the child (as per Imam Abu Hanifa) and within the post natal period (maximum of 40 days) after birth of the child (as per Imam Muhammad and Imam Yousaf). No lawful denial of paternity could be made after said stipulated period.
Rationale of the law set out in Art. 128 of the Qanun-e-Shahadat, 1984, read with S.2 of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, is quite clear; both said statutes ensured (in specified circumstances) an unquestioned and unchallengeable legitimacy of the child born within the stipulated period notwithstanding the existence or possibility of a fact through scientific evidence. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

اندراج FIR میں ہر شک کا فائدہ ملزم کو ملے گا ابتدائی تفتیش یا انکوائری کے بعد درج کردہ FIR مشکوک تصور ہو گی۔
PLD 2019 SC 64
اگر FIR جاۓ وقوعہ پر یا تھانہ سے باہر درج کرنا بیان کیا جاۓ تو اس کا مطلب یہ ہو گا کہ FIR ابتدائی تفتیش کے بعد درج کی گئی ہے اور واقعات FIR مشکوک تصور ہوں گے۔
2017 PCrLJ 1607
دفعہ 377 ت پ کیس میں محض اندراج FIR میں تاخیر کی بناء پر ملزم بریت کا حقدار نہ ہو گا۔
2013 PCrLJ 800
کسی وکیل یا کلرک سے لکھوائی گئی FIR مشکوک تصور ہو گئی ۔
2005 PCrLJ 113
مدعی نے تسلیم کیا کہ اس کا بیان تھانہ میں پہلے خالی کاغذ پر لکھا گیا پھر اس بیان کے مطابق FIR درج کی گئی۔ پراسیکیوشن کیس مشکوک تصور ہو گا
2013 PCrLJ 1847. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

SINGLE DOUBT is SUFFICIENT for AQUITTAL. .
2017 - YLR 28 ( GOLDEN RULE)
2017 - YLR 32 (LAHORE )
2017 - PCRLJ 19 ( LAH )
2016 - PCRLJ 18 ( PESHAWAR )
2017 - CrLJ - 62
2016 - SCMR - 1792
2016 - MLD - 757
1995 - SCMR 1345
2009 - SCMR 230.

DELAY of TWO DAYS in RECORDING STATEMENT OF WITNESSES u/s 161 CrPC is FATAL for PROSECUTION.
2017 - SCMR - 486
2016 - PCRLJ -1112

Art . 22 . IDENTIFICATION PARADE WITHOUT ASCRIBING ROLE of ACCUSED HAS NO EVIDENTIARY VALUE in the EYES OF LAW.
2017 - PCRLJ - 622. . .

POLICE OPINION COULD BE CONSIDERED at BAIL STAGE.
2017 - YLR - 1405.

IDENTIFICATION PARADE NOT HELD BEFORE JUDICIAL MAGISTRATE...
2006 MLD 14
2005 YLR 657
2006 MLD 431
2005 YLR 1404
2006 YLR 673. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv
2005YLR 3151 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

2011 YLR 1738

O.XVII, Rr. 2, 5 & O.IX, R.9---Limitation Act (IX of 1908), Arts. 168 & 181---Application for restoration of suit dismissed for non-prosecution---Dismissal of such application by Trial Court and appellate court for having been filed beyond 30 days prescribed under Art. 168 of Limitation Act, 1908---Plea that in absence of Presiding Officer of court, reader had fixed adjourned date of hearing without issuing signed slip specifying same, thus, order of dismissal of suit on such date not fixed by court itself was void and Art. 181 of Limitation Act, 1908 was applicable thereto---Validity---Word "adjourned" as used in O.XVII, R.2, C.P.C., would mean "adjourned" by Court---Reader had adjourned case in absence of Presiding Officer of court without handing over to plaintiff such signed slip in terms of O.XVII, R.5, C.P.C.---Such adjourned date was not a Date of hearing within meanings of O.XVII, R.2, C.P.C.---Trial Court on adjourned date fixed by its Reader could fix another date for hearing---Order of dismissal of suit had been passed in utter disregard to mandatory provision of O.XVII, R.5, C.P.C., thus, same was a nullity and Art. 181 of Limitation Act, 1908 would apply thereto---High Court set aside impugned order and restored suit in circumstances. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

صرف ایک مغویہ کے بیان کی روشنی میں بھی ملزمان کو سزا ہو سکتی ہے خواہ کوئی اور گواہان موجود نہ ہوں۔

(2016 YLR 2212) Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Advocate High Court LLM

Magistrate could not determine the nature of offence, as to whether or not the case was triable exclusively by the Court of Session---

Magistrate was not competent to dispose of a sessions case, while cancelling the F.I.R. or Police report

2014 MLD 476 KARACHI-HIGH-COURT-SINDH Side Appellant : IBRAHIM KHAN Side Opponent : StateSs. 154, 173, 190(1), 193(1) & 561-A---Penal Code (XLV of 1860), Ss.302 & 34---Qatl-e-amd, common intention---Order of cancellation of F.I.R. in "C" class by Magistrate---Application for quashing of order---Powers of Magistrate to record evidence in Sessions case and sending case to Court of Session---Magistrate, though could not record the evidence in sessions case, but that would not mean that he had to automatically send the case for trial to the Court of Session, simply because a section relating to an offence exclusively triable by the Court of Session had been mentioned by the Police in challan---Magistrate on having taken cognizance of such a matter, placed before him by the Police, was required to send it to the Sessions Court, in order to determine whether the allegations made in the Police report, had made out a prima facie case---Magistrate could not determine the nature of offence, as to whether or not the case was triable exclusively by the Court of Session---Magistrate was not competent to dispose of a sessions case, while cancelling the F.I.R. or Police report---Magistrate could draw the inference and conclusion, and then transmit the same to the Sessions Court, as it was for that competent court to decide whether cognizance, was to be taken or otherwise---In the present case, offence under Ss.302, 34, P.P.C., was exclusively triable by the Court of Sessions, Magistrate, after receiving the report under S.173, Cr.P.C., was required to forward the same to the Sessions Court without recording, or discussing any evidence, as provided under S.190, Cr.P.C.---Impugned order passed by Magistrate being coram non judice to the extent of cancelling the F.I.R. in 'C' class was set aside---Magistrate was directed to forward the report submitted by the Investigating Officer under S.173, Cr.P.C. to the Court of Session for its disposal/trial. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

جب ایک بار ضمانت دائر ہوجائے تو چاہے
ملزم پیش نہ ہو، ضمانت عدم پر پیروی خارج
ہونے کی بجائے میرٹ پر فیصلہ ہوگا۔
2021 PCRLJ 250 Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

2022 SCMR 2006

Scope of the jurisdiction of High Courts in second appeal under section 100, CPC and of the expression “contrary to law” used therein
Under Section 100 of the Code of Civil Procedure 1908 (“CPC”), a second appeal to the High Court lies only on any of the following grounds: (a) the decision being contrary to law or usage having the force of law; (b) the decision having failed to determine some material issue of law or usage having the force of law; and (c) a substantial error or defect in the procedure provided by CPC or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon merits. The scope of second appeal is thus restricted and limited to these grounds, as Section 101 expressly mandates that no second appeal shall lie except on the grounds mentioned in Section 100. But we have noticed that notwithstanding such clear provisions on the scope of second appeal, sometimes the High Courts deal with and decide second appeals as if those were first appeals; they thus assume and exercise a jurisdiction which the High Courts do not possess, and thereby also contribute for unjustified prolongation of litigation process which is already chocked with high pendency of cases.
No doubt, the expression “law” used in the phrase “the decision being contrary to law” in the ground (a) mentioned in Section 100 of the CPC is not confined to “statutory law” only, but also includes the “principles of law” enunciated by the constitutional courts, which have the binding force of law under Article 189 and 201 of the Constitution of the Islamic Republic of Pakistan 1973. And, it is an elementary principle of law that a court is to make a decision on an issue of fact on the basis of legally relevant and admissible evidence available on record of the case, which principle is also incorporated in the statutory law, that is, the first proviso to Article 161 of the Qanun-e-Shahdat Order 1984. The said proviso states in unequivocal terms that a judgment must be based upon facts declared by the Qanun-eShahdat Order to be relevant and duly proved.
The decision of a court is, therefore, considered “contrary to law” when it is made by ignoring the relevant and duly proved facts, or by considering the irrelevant or not duly proved facts. The expressions “relevant evidence” and “admissible evidence” are often used interchangeably, in legal parlance, with “relevant facts” and “duly proved facts” respectively, and a decision is said to be “contrary to law” and is open to examination by the High Courts in second appeal when: (i) it is based no evidence, or (ii) it is based on irrelevant or inadmissible evidence, or (iii) it is based on non-reading or misreading of the relevant and admissible evidence. A decision on an issue of fact that is based on correct reading of relevant and admissible evidence cannot be termed to be “contrary to law”; therefore, it is immune from scrutiny in second appeal. A High Court cannot, in such case, enter into the exercise of re-reading and re-appraisal of evidence, in second appeal, and reverse the findings of facts of the first appellate court, much less the concurrent findings of facts reached by the trial court as well as the first appellate court. It has, in second appeal, no jurisdiction to go into the question relating to weightage to be attached to the statements of witnesses, or believing or disbelieving their testimony, or reversing the findings of the courts below just because the other view can also be formed on the basis of evidence available on record of the case. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

*فیملی کورٹ اگر درخواست منسوخی کاروائی یکطرفہ یا درخواست منسوخی ڈگری یکطرفہ خارج کردے تو آرڈر کے خلاف ڈسٹرکٹ جج کے پاس دفعہ 14 فیملی کورٹس ایکٹ 1964 کے تحت اپیل ہںوگی.*

Citation:-
*PLD 2007 lahore 576*
*2018 LHC 1920*. Rafiq Khan Advocate High Court LLM 03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM

کاروباری معاملات میں دفعہ 406 ت پ کا اطلاق نہ ہو گا ۔ FIR ( QUASHED)
(2014 PCrLJ 487)
واضع Entrustment کی عدم موجودگی میں محض وعدے ایگریمنٹ یا کنٹریکٹ توڑنے پر دفعہ 406 ت پ کا اطلاق نہ ہو گا ۔ضمانت قبل از گرفتاری کنفرم ہوئی.
(2020 PCrLJ 1661).

دفعہ 406 ت پ کیس میں محض اندراج FIR میں 8 ماہ کی تاخیر کی بنا پر ملزم ضمانت کا حقدار نہ ہو گا۔۔
(2009 PCrLJ 913).
@03336023706 Rafiq Khan Lound Adv 0333 6023706 Rafiq Khan Advocate High Court LLM

اندراج مقدمہ سے قبل 157 ض ف کے تحت کاروائی عمل میں نہ لائی جاسکتی ھے۔SHO دفعہ 157 ض ف کا سہارا لیکر مقدمہ درج کرنے سے انکار نہ کر سکتا ھے
Section 157 of the Code read with Rule 24.4 cannot be employed before the registration of a criminal case under Section 154 of the Code. When information of a cognizable offence is received by the SHO, he cannot embark upon an inquiry to examine the reliability or credibility of such information to refuse the registration of a criminal case. He is under a statutory duty to register a criminal case and then to proceed with the investigation, if he has reason to suspect the commission of an offence, which he is empowered under Section 156 to investigate, subject to proviso (b) to Section 157(1) of the Code read with Rule 24.4 of the Rules, whereby an investigating officer has the ample power to dispense with the investigation altogether.

Conjunctural reading of Section 154 of the Code and Rule 24.1(1) of the Rules makes it abundantly clear that on receiving the information regarding the commission of a cognizable offence, the same shall culminate in the registration of a criminal case. The legislature by using the word 'every' to qualify the word 'information', ultimately left no discretion with an SHO to refuse the registration of a criminal case after receiving information regarding the commission of a cognizable offence. The words 'every information' clearly postulate that the legislature designedly abstained from further qualifying these words. It can be observed that in Section 154 of the Code, the legislature in its collective wisdom carefully and cautiously used the expression 'every information' contrary to Sections 22-A(3)(a) and 54 of the Code wherein the expressions, 'reasonable complaint' and 'credible information' have been used. Apparently, the use of the words 'every information' in Section 154 unlike in Sections 22-A(3)(a) and 54 of the Code is for the reason that the SHO should not have the power to refuse to record the information relating to the commission of a cognizable offence and to register a case thereon on the ground that he is not satisfied with the reasonableness or credibility of the information. In other words, 'reasonableness' or 'credibility' of the said information is not a condition precedent for the registration of a criminal case. A comparison of the present Section 154 of the Code with those of the earlier Codes indicates that the legislature had intentionally thought it appropriate to employ only the words 'every information' without qualifying the said words. An overall reading of all the Codes makes it clear that sine qua non for recording a first information report is that there should be an information and that information must disclose the commission of a cognizable offence.

Section 156 of the Code confers the power upon a police officer to investigate a cognizable offence whereas Section 157 lays down the manner, in which that investigation should be carried out. The commencement of investigation by a police officer under Section 157 (1) of the Code is subject to two conditions, firstly, the police officer should have reasons to suspect the commission of a cognizable offence and secondly, the police officer should subjectively satisfy himself as to whether there is sufficient ground for entering on an investigation even before he starts an investigation into the facts and circumstances of the case. Under the provisos (a) & (b) to Section 157 (1) of the Code, there are situations where investigation can be dispensed with. Firstly, when any information as to the commission of a cognizable offence is given against a person by name and case is of a trivial nature, the investigating officer shall not make an investigation on the spot and secondly, where it appears to the officer incharge of police station that there is no sufficient ground for carrying out the investigation. Section 158 of the Code further lays down the self-explanatory procedure to submit a report under Section 157 of the Code. 7. Comprehensive scrutiny of Sections 154, 156, 157 and 158 of the Code makes it abundantly obvious that Section 157 read with Rule 24.4 of the Rules is post registration of criminal case stage, therefore, Section 157 read with Rule 24.4 cannot be pressed into service before the registration of a criminal case. It is only the registration of a criminal case which activates Rule 24.4 of the Rules read with Section 157 of the Code.

Criminal Proceedings
9549/21
Arsalan Raza Vs JOP Gujrat etc
Mr. Justice Ali Zia Bajwa
07-09-2022
2022 LHC 6953. 0333 6023706 Rafiq Khan Lound Adv Rafiq Khan Advocate High Court LLM