Ruling

2012 P Cr. L J 1595
Mr. Justice Mian Fasih-ul-Mulk, J
HAKEEM FAZAL ELLAHI V/s MUHAMMAD
DIN ETC.
Dismissal of private complaint for nonprosecution---Principles---Once
the Trial
Court summons the accused after having
formed an opinion that sufficient
grounds were available for proceeding
against them, private complaint cannot
be dismissed for non-prosecution as it
becomes a State case
Ghulam Ahmed Chishti vs. The State
(2013 SCMR 385)
Tassaduq Hussain Jillani, Mian Saqib
Nisar and Sarmad Jalal Osmany, JJ
S. 497---Qanun-e-Shahadat (10 of 1984), Art.
43---Bail---Statement of co-accused
implicating accused for the offence---
Evidentiary value---Scope---Such a statement
could be used as a circumstantial piece of
evidence even at bail stage to form a prima
facie view about the involvement of a person.
VERY IMPORTANT JUDGMENT OF ISLAMABAD HIGH COURT
(FAIR TRAIL----BAIL GRANT OF......PREVIOUS CONVICTED)
2015 P Cr.L.J 224 (Islamabad)
“That applicant/accused is entitle for the concession of bail as a right under the Article 10-A of the constitution of Pakistan to get Fair Trail, despite of being previously convicted, if offence dose not fall under the prohibitory clause, Presumption of innocence is a basic pillar of criminal law and every person to be presumed innocent until proved guilty, Presumption of innocence is basis of right to defense of an accused and key to fair trail. Fair trail and due process essentially envisaged being free from bias of every kind and person facing trail in multiple FIRs has independent right to defend himself in each cases even conviction in another case and other cases would not influence/bias court as such bias would deprive accused of his right to fair trail and conviction in other cases would only be relevant for specific purpose of enhancement of punishment under section 75 PPC

TORT AND DAMAGES
Malik Gul Muhammad Awan vs.
Federation of Pakistan
(2013 CLD 733)
Tassaduq Hussain Jillani, ACJ and
Nasir ul Mulk, J.
It is by now a well-established principle that the
person claiming special damages has to prove
each item of loss with reference to the evidence
brought on record and for general damages as
claimed by the petitioner relating to mental
torture, agony, defamation and financial loss,
those are to be assessed following the Rule of
Thumb and the said exercise falls in the
discretionary jurisdiction of the court which has
to decide it in the facts and circumstances of
each case
CRIMINAL PROCEDURE CODE
Muhammad Sarfraz vs. The State
(PLD 2013 S.C. 386)
Anwar Zaheed Jamali and Ejaz Afzal
Khan, JJ.
When any witness is called for the prosecution
in an inquiry or trial whose statement has been
reduced into writing, the Court shall on the request of the accused refer to such writing and
direct that the accused be furnished a copy
thereof in order that any part of such statement
if duly proved may be used to contradict
such witness in the manner provided by
Article 140 of the Qanun-e-Shahadat. It does
not provide anywhere that any part of such
statement if duly proved could also be used by
the prosecution to contradict such witness.
Articles 140 and 151 of Qanun-e-Shahadat, no
doubt permit cross examination as to previous
statement in writing but these being general in
nature cannot be extended to cover a
statement recorded under section 161 Cr.P.C,
nor can they be taken to override the provision
of section 162 of Cr.P.C. in the absence of a
non-obstante clause

2013 PCrLJ 1082 (Karachi)
Record of Mobile Company and evidence of its representative was admissible in terms of Art.164 of Qanun-e-Shahadat, 1984.
MUHAMMAD AKRAM BALOCH V. AKBAR ASKANI
2014 CLC 878 Election Tribunal Balochistan
Controversy between the parties could be resolved by referring the counterfoils along with used photo voter's list and statements of count to the National Data base and Registration Authority to determine whether impersonation had been committed or not. Courts were authorized to allow producing of evidence that might have become available due to modern devices and techniques in such cases as it might consider appropriate. Computer technology being a modern device was well within the ambit of Art.164 of Qanun-e-Shahadat, 1984. Report of National Data base and Registration Authority with regard to scanning of thumb marks could be produced as evidence.
GHULAM ABBAS V. State
2013 PCrLJ 1402 (LHC)
Polygraph test has been rejected in Canada and Australia and held against the Constitution in India. The court observed that to rely on the test to connect the accused with murder is not safe and consequently bail was grante
identification of an accused by the
PWs without ascribing role is of no value.
(
2008 SCMR 302
2011 SCMR 527
2012 SCMR 52
MPROVEMENTS OF WITNESS AT TRAIL
2008 SCMR 6
“…. It is also a settled maxim when a witness improves
his version to strengthen the prosecution case, his
improved statement subsequently made cannot be relied
upon as the witness has improved his statement
dishonestly, therefore, his credibility becomes doubtful
on the well-known principle of criminal jurisprudence
that improvements once found deliberate and dishonest
cast serious doubt on the veracity of such witnesses. See
Hadi Bakhsh’s case PLD 1963 Kar. 805.
C.N.S.A, 1997
Mst. Nasreen Bibi vs. The State
(2014 SCMR 1603)
Asif Saeed Khan Khosa, Amir Hami
Muslim and Ijaz ahmed Chaudhry, JJ.
Samples had to be secured from every bag or
packet of narcotic substance, and each such
sample was to be separately tested by a
chemical examiner
C.N.S.A, 1997
Mst. Nasreen Bibi vs. The State
(2014 SCMR 1603)
Asif Saeed Khan Khosa, Amir Hami
Muslim and Ijaz ahmed Chaudhry, JJ.
Samples had to be secured from every bag or
packet of narcotic substance, and each such
sample was to be separately tested by a
chemical examiner
FAMILY LAWS
Mst. Saeed Javed vs. Javed Iqbal.
(PLD 2013 Peshawar 88)
Rooh-ul-Amin Khan and Malik
Manzoor Hussain, JJ
Suit for dissolution of marriage by wife on
ground of infertility of husband- Neither Islam
nor Dissolution of Muslim Marriages Act, 1939
recognized such ground for dissolution of
marriage as fertility or infertility or other
incapacitation for being beyond control of
human being and an act of nature---Marriage in
case of infertility of husband could be dissolved
either by him by giving Talaq to wife or by her
through "Khula"
Criminal Procedures from Investigation to Prosecution:
1. Complaint: 1.State or 2.Private
2. Complaint statement will be lodged
3. Report if no investigation is required
4. FIR lodged if investigation is required
5. Accused to be reported and brought before Magistrate. (Cognizable offence)
6. Written report sent to Magistrate. (Non-cognizable offence)
7. Challan or charge sheet is framed according to PPC offences by the investigation officer
after completion of remand period. (173 Cr. Pc
8. Police take remand of 15 days maximum for investigation (167 Cr. Pc)
9. Case examined to be transferred to session judge or the magistrate trial court OR
10. Judge takes custody of accused if there is no need of further investigation. (Judicial
Custody)
11. Charge framed copy will be supplied to all parties involved in case.
15
12. Evidence will be examined
13. Defense lawyer and state lawyer lawyers will be allowed to cross- examine the witnesses.
14. All testimonies will be heard
15. Statement of both accused and accuser will be heard
16. Arguments will be allowed from both parties’ lawyers
17. Order/ judgment/ decree/verdict will be passed by the Honorable Judge of the court
18. Appeals by the convicted or acquitted

Noor Law Associates

8 December 2015 · Karachi ·

New Guidelines for the Authorities
concerned in matters of Investigation and
Prosecution of all Rape matters in Pakistan by SUPREME COURT OF PAKISTAN

(2013 SCMR 203)

Iftikhar Muhammad Chaudhry, C.J.,
Jawwad S. Khawaja and Khilji Arif
Hussain, JJ.

The august Supreme Court of Pakistan has laid
down new guidelines for the authorities
concerned in matters of investigation and
prosecution of all rape matters in Pakistan (at
pp. 218-219):

(a) Every Police Station that receives rape
complaints should involve reputable civil
society organizations for the purpose of
legal aid and counselling. A list of such
organization may be provided by bodies
such as the Nation Commission on the
Status of Women. Each police Station to
maintain a register of such organization of
rape, the Investigating Officer (I.O.)/ Station
House Officer (S.H.O.) should inform such
organizations at the earliest.
(b) Administration of DNA tests and
preservation of DNA evidence should be
made mandatory in rape cases.
(c) As soon as the victim is composed, her
statement should be recorded under
section 164, Code of Criminal procedure,
1898, preferably by a female Magistrate.
(d) Trials for rape should be conducted in
camera and after regular court hours.
(e) During a rape trial, screens or other
arrangements should be made so that the
victims and vulnerable witnesses do not
have to face the accused persons.
(f) Evidence of rape victims should be
recorded, in appropriate cases, through
video conferencing so that the victims,
particularly juvenile victims, do not need to
be present in court.

FILLING C.P. THROUGH ATTORNEY
(2015PCr.LJ 506 [Islamabad])
Shaukat Aziz Siddiqui, J
Filing of constitutional petition through
attorney.
Attorney was real mother of petitioner and
she was competent to file proceedings for
quashing of FIR registered against her
daughter in her absence
MPORTANT POINT DISCUSSED
(2015 SCMR 423)
Ijaz Ahmed Chaudhry, Dost
Muhammad Khan and Qazi Faez Isa,
JJ
Statement of an accused recorded under S.
342, Cr.P.C. was more reliable, compared to
the statement recorded under S. 164, Cr.P.C.
PLJ 2010 SC AJ&K 54
Video film is admissible in evidence.
Art. 164 of Qanoon-e-Shahadat order, clearly contains that the court may allow to produce evidence of any such articles, which have come into existence due to some modern devices or techniques. Video film came into existence as a modern device. Video film also comes within the ambit of "document" and it can be considered as a piece of documentary evidence.
REGISRATION OF FIR….PRELIMINARY INQUIRY BY JUSTICE OF PEACE
2015 YLR-816-Karachi
Constitution of Pakistan, Art. 199…Petition…..Registration of FIR, Preliminary Inquiry….Ex-Officio Justice of Peace called report from S.H.O .concerned and dismissed application of petitioner. Validity ..Ex-officio justice of peace called report from SHO concerned ( which he was not required to do so) and merely on the basis of such report , had dismissed application of complainant /petitioner, without even discussing version of applicant….High court directed concerned SHO to entertained complaint of petitioner , carry out investigation and register FIR against purposed accused, if a cognizable offence was made out……….Petition allowed.
Supreme Court Judgement in Favor of Prosecution
1. Arrest of Accused 2012 SCMR 101 One
2. Sentence in 365-A PPC , compromise refused 2012 SCMR 140 do…
3. Quashing of FIR in 365-B PPC 2012 SCMR 94 Two
4. Confessional statement, sentence maintained 2012 SCMR 109 Two
5. Murder/Compromise/Principle of Fasad fil arz,
Sentence upheld
2012 PSC Crl.65/ PLJ 2012
SC 224
Three
6. Identification parade/concurrent assessment Identify
in I.D.Parade and refused in court, sentence upheld
2012 PSC Crl.100/ 2012
SCMR 215 /2012 SD 90
Three
7. Actual payment of Ransom, not essential 2012 PSC Crl 182 Four
8. Separate Samples in Narcotics cases 2012 PSC Crl.130/PLD 2012
Sc 380
Four
9. Discharge of Accused /Principle of Jeopardy 2012 PSC Crl.115 /PLD
2012SC 179/ PLJ 2012 SC 245
Four
10. Direction of H.C. for conclusion of trial(Bail
granted)
2012 UC 124 (SC) Five
11. Not surrendered, Bail refused 2012 UC 117 (SC) Five
12. Benefit of 382-B Cr.P.C extended 2012 UC 89 (SC) Five
13. Principle of Consistency/ Bail Refused NLR 2012 Criminal 11 Six
14. Powers U/S 439 read with 423 Cr.P.C, case must be
remanded
2012 Cr.L.J 139 (SC) Six
15. Solitary statement / No marks of Violence / No
matter, sentence passed
2012 Cr.L.J 106 (SC) Six
16. Prompt FIR / Post Mortem, Sentence maintained 2012 UC 86 (SC) Seven
17. NICL case, Bail Refused /bail until Medical board 2012 SD 52 (SC) Seven
18. Minority of Accused/ NADRA record, no proof 2012 SD 63 / 2012SCMR 242 Eight
19. Different cases of Bomb Blast / concurrent sentence
refused
2012 SCMR 334 Eight
20. Complaint in illegal dispossession Act, different
from complaint U/S 190 Cr.P.C.
2012 SCMR 229 Nine
21. Secret cavities/ Narcotics/ Destruction &Sampling of
case property
NLR 2012 Criminal 1 Ten
22. Offence U/S 3/4/4/79 P.O Procedure for trial 2012 UC 161/2010 SCMR 69 Eleven
23. Quashing of FIR Refused, 322/420 PPC NLR 2012 Criminal 162 Twelve
24. Diyat on prevailing rate when compromise is
effected
2012 PSC Crl.159 / PLJ 2012
SC 231/ 2012 SCMR 437
Thirteen
25. Conflict in ocular & Medical evidence, no question
at bail stage
2012 SCMR 556 Fourteen
26. Personal Vendetta, action designed, ATA
Jurisdiction
2012 SCMR 517 Fourteen
27. Dispensation of Justice, duty of prosecution
agencies & Advocates
2012 SCMR 399 Fourteen
28. In case of Police encounter, other agency should
investigate the case
2012 SCMR 428 Fifteen
29. Delay in sending Weapon & Crime empties to FSL,
can not overweigh the ocular evidence
2012 SCMR 593 Sixteen
30. Public Nuisance created by machines in grind mill
installed in inhabited area-
2012 SCMR 604 Sixteen
31. contumacious conduct of accused, Pre arrest refused 2012 SCMR 649 Seventeen
32. Plea of Alibi, no ground at bail stage 2012 SCMR 707 Seventeen
33. Passing of ransom, not essential, sentence converted 2012 SCMR 721 Eighteen
from 365-A to 365 PPC by High Court was set aside
by Supreme Court.
34. Qatal –a-amd & Qatal –a-amd liable to qisas,
conflicting judgment, leave to appeal granted
2012 SCMR 728 Eighteen
35. 426 Cr.P.C analogous to 497 Cr.P.C, same
principles be followed; surrender before police is not
necessary if accused appeared before appellate
court.
2012 SCMR 997 Nineteen
36. Right of private defence, act must be proportionate
to apprehending danger, complainant party came
empty handed to take the possession of land, Murder
unjustified, death confirmed.
2012 SCMR 1014 Twenty
37. Court can punish for minor offence when no charge
was framed, but can not do so retrospectively
2012 SCMR 1066 Twenty-1
38. False case of abduction to settle civil dispute,
Supreme court directed to proceed against female
complainant U/S 181, 182 etc.
2012 SCMR 1069 Twenty-2
39. Complaint dismissed, High court in revision
remanded the case without providing opportunity to
accused U/S 439(2), impugned order was set aside
2012 SCMR 1072 Twenty-3
40. Unlawful assembly, common object, seventeen
members, objection about their separate role given
by the pws, ignored in the light of common object
2012 SCMR 1156 (India) Twenty-3
41. Grave and sudden provocation on the basis of verbal
abuses and threats was not accepted, murder in
court premises, appeal dismissed
2012 SCMR 1195 Twenty-5
42. Question of seventeen bags or packets of charas, pws
consistent about taking of 17 samples, considering
one packet even of one KG, case is of 9-C
2012 SCMR 1276
distinguished with PLD 2012
SC 380
Twenty-6
43. In the absence of reliable documentary evidence,
medical evidence to be preferred for determination
of age of accused
2012 SCMR 1400 (India) Twenty-7
44. Murder with lathis & knives, unlawful Assembly,
person raising lalkara, all were held responsible,
2012 SCMR 1422(India) Twenty-7
45. Transferred malice, doctrine of joint liability 2012SCMR 1442 (UK) Twenty-8
46. Diyat on prevailing rate when the compromise is
effected because it is a contract which can not be
retrospective.
PLD 2012 SC 769 Twenty-9

Judgement in Favor of Prosecution

Sr.no Subject Case law
1. Public prosecutor has power to decide the
applicability of the offences in a case
PLD 2009 LHR 135
2. Direction of DPG to challan the accused, approved
by PG, police cannot ignore such direction
PLD 2009 LHR 218
3. Prosecutor can not change the jurisdiction of a
court, it is ATA court to decide
2008 P Cr.L J 805
4. Change of charging section of penal code, power of
District public prosecutor
2010 YLR 470 (Kar)
5. Opinion of DDPP, not binding on the Magistrate 2009 YLR 1364 (Kar)
6. Accused in column No.2 of challan was placed in
column-3 on the direction of DPP, not warranted
2008 YLR 1462
7. Giving up the prosecution witness/ complainant,
power of prosecutor
2010 P Cr.L J 151
8. Under Islamic system of dispensation of justice,
Public Prosecutor had no right to withhold any
prosecution evidence from the Court
2006 P Cr.LJ 364 (FSC)
9. Only prosecutor has power to give up witness in
case instituted upon police report
2004 P Cr.LJ 1353
10. Delayed production of documents through public
prosecutor was allowed by the court
2012 P Cr.LJ 73
11. Three pillars of Criminal Justice system;
investigation, prosecution and trial
2010 P Cr.LJ 182
12. Powers of prosecutor to choose the witnesses 1981 SCMR 294
13. Measures to be resorted before closing of
prosecution evidence
PLD 2011 LHR 551
14. Interim challan could be completed subsequently PLD 2009 Lahore 101
15. Report U/S 173 Cr.P.C is a documentary evidence 2007 YLR 779
16. Prosecutors on contract were terminated by High
Court
2010 PLC (C.S.) 1
17. Supreme Court Upheld decision of High Court
regarding fate of prosecutors on contract job
PLD 2010 SC 841
18. Prosecutor would forward the application U/S 540
Cr.P.C.
2011 YLR 2058
19. Police shall comply with the direction of prosecutor
at every cost
2012 P Cr.LJ 1823
20. Local scrutiny by legal branch of police is not
binding on the district prosecution, who has the
final say in the matter.
PLD 1990 LHR 249
21. If wrong provision of law is mentioned in challan
District prosecutor is competent to change the
section
2001 YLR 263
22. Director General of Prosecution can issue
necessary guidelines to police and can also inspect
scrutinize and supervise the whole investigation
process of the case
PLD 2008 Peshawar 28
23. Guide lines for use of powers by prosecutors U/S 10
& 12 of Prosecution Act in dacoity cases/ ID parade
2008 P Cr.LJ 470
24. Police has no authority to amend the charge without
sanction from prosecution Agency
1991 P Cr.LJ 723
25. Police requesting the court for handing over of
accused without placing any challan would amount
to contempt of court
2003 MLD 1753
26. Summoning witness by the court at bail stage; Role
of prosecutor defined
2007 P Cr.LJ 749

22-A/ 22-B CrPC
Application U/S 22-A/22-B Crpc moved to destroy the prosecution case with ulterior motive
Ss. 22-A, 154 & 561-A---Application for quashing of proceedings---First F.I.R. was registered
against the accused (petitioner) for murdering one of the sons of the complainant and injuring the
other---Second F.I.R. was registered against the accused on the same day when he fired upon the police
party, which was trying to arrest him in connection with the first F.I.R.---Powers of Justice of Peace---
Scope---Accused filed an application under S.22-A Cr.P.C. before Justice of Peace for registration of case
against complainant's wife and son, with the allegation that on the directions of complainant's wife, her
son fired upon the accused, as a result of which he was injured, but said application of accused was
dismissed by the Justice of Peace---Validity---Accused had been directly charged in the first F.I.R. for the
murder of one of complainant's son and causing serious firearm injuries to the other---Accused was
wanted for the first F.I.R. and was followed and arrested by the police, after sustaining injuries at the
hands of the police, which fact had been recorded in the second F.I.R.---Contents of second F.I.R.
revealed that a police official had taken the responsibility of injuries on the person of the accused in
unequivocal term without any reservation, narrating all the details of how the injuries were caused---
Attempt on part of accused to get a case registered against the complainant's wife and son for some
ulterior motives seemed a shrewd attempt---Section 22-A, Cr.P.C. empowered the Justice of Peace for
issuance of directions for registration of case, but this power, was never supposed to be exercised in a
mechanical manner, without application of an independent mind---All such powers were vested in the
authority for dispensation of justice and were never meant to be exercised in aid of injustice---Any
direction issued by the Justice of Peace for registration of case in the present application, would have
advanced the mala fide design of the accused to destroy the prosecution case for ulterior motive and
would have amounted to misuse of a legal provision of a statute---Courts were never supposed to shut
their eyes from other aspects of the case and to pass orders for registration of case on a false report of
any complainant---Justice of Peace had committed no illegality or any irregularity by refusing to issue
direction to the Station House Officer (S.H.O.) concerned, for registration of the case against
complainant---Application of accused for quashing of order was dismissed, in circumstances.(2012 YLR
Section 249 & 265 (Cr.P.C)
POWER TO STOP PROCEEDINGS WHEN NO COMPLAIN
2006 SCMR 1192
Ss.249-A & 265-K---Constitutional petition before High Court---Competency---Quashing of F.I.R.---Constitutional petition for quashing of F.I.R. was accepted by High Court on the ground that cheque
1998 SCMR 1359
Ss. 249 & 249-A---Penal Code (XLV of 1860), Ss. 506 & 452---Constitution of Pakistan (1973), Arts. 199 & 185(3)---Discharge of accused by Magistrate without giving any reasons---Validity---
1984 PLD 428 SC
Summons issued for witnesses and witnesses not appearing in response thereto - Reasons must be examined and noted in order sheet and where necessary coercive steps should be taken for securing
2012 PCrLJ 276
Section 249, Cr.P.C. did not empower the Magistrate to fix time for appearance of the complainant and if he had failed to do so, then to acquit the accused on that basis.
2008 PCrLJ 858
Order passed by Court at the initial stage on the material placed before it without recording any evidence, would not strictly be an order of acquittal in terms of S.403, Cr.P.C. according to which
2006 PLD 43 SCAJK
Court was given a discretion under S.265-F(2), Cr.P.C. to summon any person who appeared to the Court to be acquainted with the facts of the case and able to give evidence for the prosecution---Said
Pre-emption
2011 SCMR 1322
Right of Pre-emption ---Talb-e-Muwathibat, making of---Plaint and evidence---Contradictions---Effect---Suit filed by pre-emptor was concurrently decreed in his favour by all three courts below---Plea raised by vendees was that there was contradiction in plaint and evidence regarding time and place of making of Talb-e-Muwathibat---Validity---Stance of pre-emptor was contradictory, inasmuch as, in plaint it was alleged that he performed Talb-e-Muwathibat on 28-8-1995, in presence of a witness but while appearing as witness, pre-emptor stated that Talb-e-Muwathibat was performed on 5-9-1995, in presence of Patwari---Such two statements were irreconcilable as two different dates for performance of Talbs were pleaded by pre-emptor---Issue relating to Talbs could not have been decided in favour of pre-emptor in view of his contradictory stance---None of the courts below adverted to such material and crucial aspect of the case which could have only decided fate of suit---High Court only relied upon statement of pre-emptor and completely ignored his stance initially taken in the plaint---All the courts below decided the matter in complete oblivion of record of case and High Court mechanically affirmed findings of two courts on the ground that those were concurrent---All the courts completely misread the record of the case and Supreme Court reversed judgments and decrees of all three courts---Supreme Court converted petition for leave to appeal into appeal and dismissed the suit filed by pre-emptor.

Statement of Co-accused could not be used against other co-accused under A 38 Q.S.O 1984....

2013 SCMR P-669
2014 YLR P-877
2013 SCMR P-385

Contra;

2013 SCMR P-385

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