Cross Version - Procedure to be adopted

 Main Points

• Procedure in cross cases provided
• Cross cases will run side by side
• Trial will be conducted by same court
• Judgment in both cases will be announced simultaneously 

Criminal trial---

----Cross-versions---Scope---Counter cases would be tried side by side by the same court till their conclusion and judgments are to be pronounced simultaneously. 

Penal Code (XLV of 1860)---

----Ss. 337-A(i), 337-F(i), 337-L(2) & 34---Shajjah-i-khafifah, ghayr-jaifah, damiyah, causing hurt and common intention---Appreciation of evidence---Prosecution case was that the accused armed with sticks attacked upon the complainant and his daughter and both of them received injuries---Record showed that the challan of case was submitted before the Judicial Magistrate, who tried the case and accused petitioners were convicted---Cross case was submitted before the Sessions Court which was tried and accused were acquitted---Complainant of said cross case filed acquittal appeal, which was partly allowed and case was remanded to the Trial Court---Trial in both the cases should have been conducted side by side by the Trial Court, as in such like cases, the prime question was the determination of aggressor and aggressed upon---Such a question could not be determined without analysis of the evidence of both the cases---Trial Court without conducting a trial in case under Ss. 324 & 34, P.P.C., had dealt with the trial of the petitioners in a haphazard manner and recorded their conviction and sentence, which exercise undertaken by the Trial Court was against the general practice in cases of counter versions---True that the Code of Criminal Procedure, 1898 was silent with regard to procedure to be adopted in the trial of counter cases, arising out of the same incident and it had not been laid down anywhere in the Code of Criminal Procedure, 1898 as an absolute rule that all charges and counter-charges must be tried by the same court, however, it was a salutary practice that two criminal cases relating to the same incident were to be tried and disposed of by the same court by pronouncing judgments on the same day---Practical reasons for adopting such procedure was nothing but to staves off the danger of an accused being convicted before his whole case was before the court---To deter conflicting judgments being delivered upon similar facts and in reality, the case and the counter case were to all intend and purposes different or conflicting versions of one incident and finally to determine the question as to who was the aggressor and who was aggressed upon---Petition was partly accepted, in circumstances and by setting aside the impugned judgments and the case was remanded to the Additional Sessions Judge for decision afresh.

#criminallaw #criminallawyet

2022 M L D 1589

Recording of evidence of deaf and dumb witness

Recording evidence of a witness who is deaf and dumb.

While examining a deaf and dumb witness, following steps should be taken by the learned trial Courts: 

 To ascertain whether such a witness possesses the requisite amount of intelligence;  

 Whether he understands the nature of oath;  

 Trial Court is also required to record his satisfaction to that effect;  

 The trial Court is required to ascertain, if the witness either by writing or sign can make intelligible of what he has to speak;  

 If he is able to communicate his statement perfectly by writing, it will be more satisfactory method of taking evidence;  

 When such a witness is unable to write, then he can make sign showing what he wants to say;  

 If it is by signs, those signs must be recorded by the learned trial Court and not only the interpretations of those signs;  

 It is necessary to enable the appellate Court to know whether the interpretation of the sign is correct or not;  

 It is not safe for a trial Court to embark upon the examination of a deaf and dumb person on his own without help of an expert or a person familiar with his mode of conveying ideas to others in day to day life; 

 The interpreter should not be a interested person, who had participated in the investigation and who is a witness in the same trial;  

 Interpreter should be a person of the same surrounding but should not have any interest in the case and he should be administered oath;

PLJ 2022 CrC 1365

Sine Qua non To Attract Section 452 PPC

For the attraction of section 452 PPC, preparation for causing hurt is sine qua non and when facts and circumstances of a case suggest that accused were not armed with any weapon at the time of occurrence, applicability of section 452 PPC becomes highly doubtful. When parties are closely related to each other, express penal provisions of section 452, PPC shall not be attracted because both the parties shall have access to the each others houses without any interference.

The petitioners have not been shown to be armed with any kind of weapon at the time of alleged occurrence. More so, for the attraction of section 452 PPC, preparation for causing hurt is sine qua non, which is very much lacking in this case. 

It is crystal clear from the facts and circumstances of the case that petitioners were not armed with any weapon at the time of alleged occurrence, in this way applicability of section 452 PPC is highly doubtful. 

It evinces from the record that the complainant is sister-in-law (Bhabi) of accused persons and is living with their real brother. The petitioners have easy access to enter in the house of their brother due to the close kith and kin. It is admitted at all hands that the parties are closely related to each other, therefore, express penal provisions of section 452, PPC are not attracted against the petitioners as they had access to the houses of each other without interference.

Even otherwise, if an accused person has a good case for post arrest bail mere at the wish of complainant, he cannot be sent behind the bars for few days by dismissing his application for pre-arrest bail. It is by now well settled that merits of the case can also be taken into consideration while deciding the bail before arrest.

#criminallaw #criminaltrial #criminaljurisprudence

2022 MLD 1059

Stages of Civil Suit

 STAGES OF CIVIL SUIT

Normally a civil suit has to travel through 17 main stages from institution of the suit till its judgment, they are as under :-

1) Institution of Suit

Order 4, 6 and 7

2 Issue of Summons

Order 5

3 Filing of Written Statement

Order 8

30

4 Examination of Parties

Order 10

10

5 Settlement of Despute

Section 89

6 Discovery & Inspection

Order 11

7 Admission

Order 12

8 Production of Documents

Order 13

9 Framing of Issues

Order 14

10 List of Witness

Order 16

11 Summons to Witnesses

Order 16 R 1 (4)

12 Settling Date

Order 16

13 Evidence of Parties

Order 18 R 4

r/w Order 17

----

14 Exhibiting of Documents

Order 18 R 4 (1)

Proviso

07

15 Cross-exam by parties

Order 18 R 4 (2)

----

16 Arguments

Order 18 R 2 (3A)

----

17 Judgment

Order 20

            Out of these 17 main stages the amended code does not speak about any time limit for Examination of Parties - Order 10, Settlement of Disputes - Section 89, Production of Documents - Order 13, Exhibiting of Documents - Order 18 R 4 (1) proviso and Arguments - Order 18 R 2 (3A), but in the rest of the provisions the amended code has given time limits in the provisions itself and we cannot ignore them so easily and without any rare and exceptional circumstances.

Now once a party has filed the suit then he has to comply all the provisions one by one within the stipulated time. If the table shown as above is effectively implemented then no prejudice is likely to be caused to either of the parties and it will be a milestone in disposing off the civil suit in a stipulated time and that too within the framework of law, respecting the intention of the legislature. Now it is for us to decide whether to follow the provisions or the practice while interpreting and implementing the provisions of amended code. 

In the amended code most of the provisions contains time limits for a particular stage. Maximum of the provisions are mandatory in nature and in very few of them the discretion lies with the court.

1. Plaintiff has to file the plaint complying the provisions in all respect as contemplated under Order 4 r/w Order 6 and 7 of the code.

2. Plaintiff has to issue summons within 30 days from the institution of suit.

3. After the service of summons defendant has to file his written statement within 30 days from the receipt of summons as per Order 8 R 1 of the code

4. No further time exceeding 90 days after date of service of summons be extended for filing written statement as per proviso to Order 8 R 1 of the code.

5. Within 10 days from the filing of written statement court has to examine the parties so as to explore the possibilities of compromise in between the parties and to refer the matter of settlement under section 89 of the code.

6. If parties fail to compromise the matter then court has to keep the matter for discovery and inspection within the time span of 7 – 10 – 10 – 3 days, as per Order 11 of the code.

7. Then to adjourn the matter for admission within the time span of 15 days as per Order 12 of the code.

8. Then parties have to file the original documents prior to framing of issues within the time span of 7 days, as per Order 13 of the code.

9. Court has to frame the issues within 15 days as per Order 14 of the code.

10. Parties have to file the list of witnesses within 15 days from the date of framing of issues as per Order 16 of the code.

11. Plaintiff has to issue summons to the witnesses either for adducing evidence or for production of documents within 5 days of filing of list as per Order 16 R 1 (4) of the code.

12. Parties have to settle the date of evidence as per Order 16 of the code.

13. Plaintiff has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.

14. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.

15. Cross examination of the plaintiff and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.

16. Defendant has to issue summons to the witnesses either for adducing evidence or for production of documents as per Order 16 R 1 (4) of the code.

17. Defendant has to file the affidavits of all his witnesses within 3 adjournments as per Order 18 R 4 r/w Order 17 of the code.

18. Court has to exhibit the documents considering their proof and admissibility with a reasoned order as per proviso to Order 18 R 4 (1) of the code.

19. Cross examination of the defendant and his witnesses on day to day until all the witnesses in attendance have been examined as per Order 18 R 4 (2) r/w Order 17 R 2 (a) of the code.

20. Parties have to conclude their arguments within 15 days from the completion of their respective evidence as per Order 18 R 2 (3A) of the code.

21. Court has to delivered judgment forthwith or on or before 30 days and not exceeding 60 days from the date of conclusion of the arguments as per Order 20 R 1 of the code.

Guiding Principles Fir Fixation Of Maintenance

It is the duty of the family courts to consider the following guiding principles.  

 a) After recording of evidence by the Family Court, if it appears that any spouse who has suffered the psychological and physical injuries at the hands of other spouse covering under the offences referred in Part-II i.e. Sections 337A(i), 337F(i), 341, 342, 343, 344345, 346, 352 and 509 PPC, the learned Family Judge has to proceed against the perpetrator and award sentence in accordance with the law.   

 b) The Family Court while considering the offences referred in Part-II of the Schedule should give clear findings and verdict while dilating upon the evidence, even with or without framing of charge of that offence as the legislation has used the term “notwithstanding anything contained in the Code of Criminal Procedure, 1898”.

c) The Family Court can summon the evidence of expert psychiatrist, doctor, CMO or the relevant doctor who had treated the victim in such type of cases.   

d) The Family Court, before pronouncement of the final judgment, if prima facie, seem the offences referred in Part-II of the Schedule, may issue a show cause to the perpetrator or the spouse accused of the offence(s) in order to justify the requirements of Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 by giving full opportunity for his defence and may record his/her statement being an accused as required under Section 342 Cr.P.C. or 340(2) Cr.P.C., if so required. 

e) The Family Court may also call the summary inquiry through the relevant police authorities or seek a report and treat all those reports, record and documents as part of trial and may also provide the copies of those documents to the person accused of the charge before final pronouncement of the judgment.  

f) The Family Court, while deciding the issue of cruelty, may frame specific charge for the offence, consider the evidence on the touchstone and requirement of ingredients of offences referred in Part-II of the Schedule and pass a sentence simultaneously in the same judgment or may proceed separately in accordance with procedure provided under the Cr.P.C.

 g) The Family Court who has not given any findings on Part-II of the Schedule (of the offences) in its judgment despite availability of evidence in the Family Court jurisdiction, shall be treated as misconduct on its part, which has to be dealt with separately by the High Court on its administrative side.

#familylaw #familylawyer

2020 MLD 1147

Appointment Of Local Commission - Power Of Executing Court

Whether learned executing court is vested with the power to appoint local commission during the execution proceedings?”

Section 75 and Order XXVI

of the CPC has been elaborated by High Court.

Power of court to issue commissions is embodied in Section 75 of “CPC.

In furtherance Order XXVI of the Code ibid deals with the commissions and in terms of Rule 9 a court is vested with the power to appoint a local commission where it deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount or any mesne profits or damages or annul net profits, with a direction to make such investigation and to report thereon. 

From the bare language of the above referred provision of law it is manifestly clear that power of the court to appoint local commission is restricted to the proceedings in the suit. It is not in dispute that the application under Order XXI Rule 32 of “CPC” comes under proceeding in execution. There is also no cavil to the proposition that the learned executing court is not a civil court. 

Learned Civil Judge during the execution proceedings cannot appoint local commission. The learned Civil Judge being the executing court was not vested with any power to appoint local commission.

2022 CLC 1719

Pre-Arrest Bail - Direct Approach To High Court

Person could directly approach the High Court by invoking its concurrent jurisdiction

S.498… Penal Code (XLV of 1860), Ss, 302,324,337-H(2), 147,148,149 & 114. Qatl-e-amd ,attempt to commit qatl-e-amd by rash negligent act, rioting armed with deadly weapons, unlawful assembly, abettor present when offence committed, protective bail, grant of filling pre-arrest bail of, Filling pre-arrest bail before High Court without approaching Sessions Court(Trail Court) first, Scope, Accused contended that there was old enmity between the parties and if he approached the Sessions Court first for grant of pre-arrest bail, there was an apprehension of quarrel and his arrest at the instance of the complainant party, who were influential persons of the locality-Validity- No legal justification existed in the contention of the accused regarding apprehension of a quarrel, if he approached Sessions Court first, because the case had been challaned and accused had to face trail at the same Sessions Court, Although a person could approach the High Court directly for bail before arrest by invoking its concurrent jurisdiction, but for that compelling reasons had to be brought on record, which the accused, in the present case, failed to do, without touching merits of the case and in view of the apprehension of accused regarding his arrest before reaching the Sessions Court, protective bail was granted to him to appear and surrender before the Sessions Court for the relief of bail before arrest, Bail application was disposed of accordingly.

2013 MLD 1009

HABEAS CORPUS PETITION CONVERTED INTO PROTECTIVE PRE-ARREST BAIL

HABEAS CORPUS PETITION CONVERTED INTO PROTECTIVE PRE-ARREST BAIL 

S.491&498… Habeas corpus petition converted into protective pre-arrest bail application, Petitioner filed present petition under section 491,CrPC. Seeking recovery and production of detenu from rhw illegal custody and confinement of Station House Officer (SHO), Plea of petitioner was that some persons made as assault on the detenu, where after he was medically examined at a health center and that detenu was arrested in registration of FIR but instead police arrested him without justification and cogent reasons, Plea of Police was that detenu was arrested in connection of FIR in which he was nominated as an accused, Validity, Benefit of High Court was deputed to recover detenu from the police station where he was detained, Benefit could not entry of arrest of detenu in the daily dairy, Report of bailiff and medico-legal certificate of detenu revealed that he was brought to health center by police, FIR for which detenu ws allegedly arrested, did not mentioned his name and instead name of some other person had been arrayed therein as an accused, Bailiff reported that file of the said FIR was also not available in the police station and was statedly in the custody of police officer, who was not present in the police station at the time of bailiffs visit, Neither complainant of said FIR not Station House officer was present in court to account the veracity of said FIR, Prima facie non-production of te record before the bailiff was not only disobedience of te order of the High Court but also an effort to show the arrest of detenu by concerned police official, admittedly detenu was not produced before any court of Law, Detention of detenu was illegal and unlawful in such circumstance, Since arrest of detenu was illegal therefore before any court of Law, Detention of detenu was illegal and aunlawful in such circumstances, Since arrest of detenu was illegal therefore he was granted protective pre-arrest bail and set at liberty, Habeas corpus petition was disposed of accordingly.

2013 PCrLJ 1240

Detailed Steps of Criminal Trial With Relevent Provisions

Detailed Steps of Criminal Trial With Relevent Provisions.

A Criminal trial goes through the following steps.

1) FIR U/S 154 ,or Direct complaint U/S 200 of Cr.P.C 1898.

2) Investigation U/S 156 or inquiry Under section 202 of Cr.P.C 1898.

3) Record of statement and confession Under section 161 and 164 read with section 364 of Cr.P.C 1898.

(4)Physical Or police remand U/S 167, 344 of Cr.P.C 1898.

5) Submission of Challan Under section 173 of Cr.P.C 1898, under following modes;

A) Section 169 of Cr.P.C 1898.

Release of accused when evidence deficient.

 

B.) Section 170 of Cr.P.C 1898.

Case to be sent to magistrate when evidence are sufficient.

C) Section 512 of Cr.P.C 1898.

 

Record of evidence in absence of accused.

    

(6) Quashing of FIR Under Section 561-A of Cr.P.C 1898.

(7)Taking cognizance under section 190 of Cr.P.C 1898.

(8)Issue of process Under section 204 of Cr.P.C 1898.

9) Bail in Bailable offences under section 496 of Cr.P.C 1898 and Bail in Non-bailable offences under section 497 of of Cr.P.C 1898.

10) The framing of charge from Sections 221 to 240 of Cr.P.C 1898 onwards.

11) Speedy acquittal under section 249-A for Magisterial trial. And under section 265-K for Session's Trial.

Note: After hearing the prosecutor and accused counsel, reasons shall be reasons be recorded for every finding.

12) Pleading guilty under sections 243 and 265-E of Cr.P.C 1898.

13) Beginning of prosecution evidence:

Prosecution Evidence, through Examination in chief, Cross Examination and Re-examination (If any).

14) Beginning of defense evidence, Statement of Accused under section 342 of Cr.P.C 1898.

15) Final Arguments.

16) Pronouncement of Judgment under section 366 of Cr.P.C 1898.

A) Acquittal under sections 245 & 265-H of Cr.P.C 1898,

or Conviction under sections 245(2) & 265-H(2) of of Cr.P.C 1898.

17) Appeal:

A) Appeal to court of session against sentenced passed by the assistant session judge or judicial magistrate under Section 408 of Cr.P.C 1898.

B.) Appeal to to high court against the sentence passed by Session's or Additional Session's Judge under section 410 of Cr.P.C 1898.

C) Appeal against acquittal through Public Prosecutor under section 417 of Cr.P.C 1898. 

Agreement To Sell - Requirements

The term “Agreement to sell” is defined in Black’s Law Dictionary as under:-   

“An agreement that obligates someone to sell. 

The above referred definition requires that both the parties to agreement have to make promise for some lawful act against some lawful consideration. Furthermore an agreement to sell should contain the following constituents:- 

i) Identification of seller and purchaser, i

i) Sale consideration amount,

iii) Identification of property to be sold, 

iv) Parties to agreement to sell property at consensus ad idem.

2022 CLC 1659

Bail - Fresh Ground

Bail - Fresh ground

Offence with which accused was charged was not compoundable but when the complainant and his witnesses were not ready to depose against the accused, then no other evidence would be sufficient for conviction of the accused---In view of the retrace made by the complainant because of the compromise, case of accused, on basis of a fresh ground, had become arguable for the grant of bail---Bail petition of accused was allowed and he was granted bail.

2012 YLR 1606

Framing Of Charge - Duty of Court

Criminal Procedure Code (V of 1898)---

----S.221---Charge to state offence---Scope---Charge shall state the offence with which the accused is charged and the "law and section of law" against which the offence is said to have been committed shall be mentioned in the charge.

Criminal Procedure Code (V of 1898)---

----S.221---Charge to state offence---Object of framing charge---Scope---Whole object of framing charge is to enable the accused to know that what is precise accusation against him and concentrate his attention on the case that he has to meet i.e. to ensure that the accused had sufficient notice of the nature of accusation with which he was charged and secondly to make the Court concerned conscious regarding the real points in issue---Although charge must contain facts which are essential factors of the offence in question, however, no yardstick can be fixed qua the particulars which should be mentioned in the charge as it depends upon facts/ circumstances of each case---Prime consideration which is of vital importance/mandatory with respect to charge is that accused must not be misled in his defence by omission/error in the charge---If contents of charge are not misleading the accused in his defence then there is no defect of material nature in the charge; in other words, if nature of accusation has been incorporated in the charge with relevant provision of law applicable in categorical manner eliminating possibility of any confusion or prejudice then such charge cannot be termed as defective---If particulars of the offence are not mentioned in the charge and accused is convicted for said offence then it can be said that such omission caused prejudice to the accused in his defence but if particulars and provision of law are mentioned in the charge and subsequently same is not proved during trial then accused certainly gets the benefit of acquittal and practically speaking no prejudice is caused to the accused i.e. in simple words, framing of charge does not mean conviction and if it is not proved then of course, it results into acquittal and accused does not suffer from any prejudice.

Criminal Procedure Code (V of 1898)---

----S.265-D---When charge is to be framed---Scope---Charge is framed by Trial Court after perusing the police report or complaint, all other documents and statements filed by the prosecution.

2022 M L D 1046