ENGLISH ESSAY FOR ALL/IMPORTANT TOPICS

yousaf · Post by **yousaf** » Fri Dec 21, 2012 8:58 pm

RIGHT TO FAIR TRIAL(A newly inserted Fundamental Right under the Constitution of Pakistan, 1973)A newly inserted Fundamental Right, Article 10-A, Chapter-I, Constitution of Islamic Republic of Pakistan, 1973, by virtue of (Eighteen Amendment) Act, 2010. It is a world wide well recognized and acknowledged right. An overview of the Right to Fair Trial is as under:--The "right to fair trial" is seen as an essential right in all countries respecting the rule of law. A trial in these countries that is deemed unfair will typically be restarted, or its verdict quashed.The right is enshrined in numerous declarations which represent customary international law, such as the Universal Declaration of Human Rights (UDHR).Various rights associated with a fair trial are explicitly proclaimed in Article 10 of the Universal Declaration of Human Rights, the Sixth Amendment to the United States Constitution, and Article 6 of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world. The aim of the right is to ensure the proper administration of justice.Though the UDHR enshrines some fair trial rights, such as the presumption of innocence until the accused is proven guilty, in Articles 6, 7, 8 and 11, the key provision is Article 10 which states that:"Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him."Some years after the UDHR was adopted it was decided that the right to a fair trial should be defined in more detail in the International Covenant on Civil and Political Rights (ICCPR). The right to a fair trial is protected in Articles 14 and 16 of the ICCPR which is binding in international law on states that have ratified it. Article 14(1) establishes the basic right to a fair trial, Article 14(2) provides for the presumption of innocence, and Article 14(3) sets out a list of minimum fair trial rights in criminal proceedings. Article 14(5) establishes the rights of a convicted person to have a higher Court review the conviction or sentence, and Article 14(7) prohibits double jeopardy. Article 14(1) states that:"All persons shall be equal before the Courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the Court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children."Relationship with other rights.The right to equality before the law is sometimes regarded as part of the rights to a fair trial. The right entitles individuals to be recognized as subject, not as object, of the law. International human rights law permits no derogation or exceptions to this human right. Closely related to the right to a fair trial is the prohibition on ex post facto law, or retroactive law, which is enshrined in human rights instrument separately from the right to fair trial and can not be limited by states according to the European Convention on Human Rights and the American Convention on Human Rights.The Word "FAIR" defined as in Black's Law Dictionary (9th Edition), Page- 674Fair, adj.(bef.l2c) l.Impartial; just; equitable; disinterested <everyone thought that Judge was fair) 2. Free of bias or prejudice <in jury selection, the lawyers tried to select a fair and impartial jury>.The Word "TRIAL" defined as in Black's Law Dictionary (9th Edition), Page-1644Trial, (15c) A formal judicial examination of evidence and determination of legal claims in an adversary proceedings.The Word "TRIAL" is also defined under Section 2(7) of the Bankers Book Evidence Act, 1891.S- 2(7) "Trial" means any hearing before the Court at which evidence is taken;The Word "FAIR TRIAL" defined as in Black's Law Dictionary (9th Edition), Page- 676Fair Trial. (17c) A trial by an impartial and disinterested tribunal in accordance with regular procedure; esp., a criminal trial in which the defendant's constitutional and legal rights are respected.Fair trial rights:The right to a fair trial is one of the most litigated human rights and substantial case law has been established on the interpretation of this human right. Despite variations in wording and placement of the various fair trial rights, international human rights instrument define the right to a fair trial in broadly the same terms. As a minimum the right to fair trial includes the following fair trial rights in civil and criminal proceedings:• The right to be heard by a Competent, Independent and impartial Tribunal.• The right to a public hearing.• The right to be heard within a reasonable time.• The right to a counsel.Historically the right to a fair trial was regarded as more important in criminal proceedings, because the consequences for the individual are more severe in criminal proceedings compared to civil proceedings. In criminal proceedings the right to a fair trial include minimum the following fair trial rights:• The right to be notified of charges in a timely manner.• The right to adequate time and means for the preparation of a defense.• The right of the accused to defend him or herself, or the right to a counsel chosen by the accused and the right to communicate privately with the counsel.• The right not to incriminate oneself.• The right to appeal at first instance to a higher Court and the prohibition on double jeopardy.It also applies to all types of judicial proceedings, whether civil and criminal. According to the European Court of Human Rights Article 6 of the European Convention on Human Rights and the fair trial rights apply to all civil rights and obligations created under domestic law and therefore to all civil proceedings.The right to a fair trial applies not only to judicial proceedings, but also administrative proceedings. If an individual's right under the law is at stake, the dispute must be determined through a fair process.The right to a fair trial is often held as a central constitutional protection. It nevertheless remains unclear what precisely should count as a 'fair' trial and who should decide verdicts. This already difficult issue has become even more important given a number of proposed reforms of the trial, especially for defendants charged with terrorism offences. This collection, the Right to a Fair Trial, is the first to publish in one place the most influential work in the field on the following topics: including the right to jury trial; lay participation in trials; jury nullification; trial reform; the civil jury trial; and the more recent issue of terrorism trials. The collection should help inform both scholars and students of both the importance and complexity of the right to a fair trial, as well as shed light on how the trial might be further improved.In Pakistan the Superior Courts, even before insertion of Right to Fair Trial, in Chapter-I of the Constitution, 1973 recognized such right by various pronouncements.Reported Case;• Nazeer Ahmed alias Papu V. State 2010 YLR 722• Mureed V. State 2010 MLD 318• Samad Electronic V. Tariq Sherwani 2008 SCMR 177• Hidayatullah V. The State 2007 YLR 1311• Matloob Hussain V. State 2005 MLD 1101.• Dr. Abdul Jalil V. State 2005 YLR 3213• Pearal V. State 2005 YLR 358• Mir Ghous Bakhsh Bazenjo V. The State 1969 P.Cr. L. J 991Now after the insertion of Article 10-A (Right to fair Trial) in Chapter - 1 (Fundamental Rights), Constitution of Pakistan, 1973 the Right to Fair Trial is one of the guaranteed Fundamental Rights and by virtue of Article 8 of the Constitution of Pakistan, 1973 if any law, or any custom or usage having the force of law, insofar as it is inconsistent with the Fair Trial right, to the extent of such inconsistency, be void, and under the Constitutional Jurisdiction the Superior Courts of the Country may declare such law, custom or usage having the force of law, to the extent of such inconsistency, void.Reported Cases• Mehram Ali & others V. Federation of Pakistan PLD 1998 SC 1445. • Abul Ala Muddudi V. Federation of Pakistan PLD 1964 SC 673.• Mst. Banazir Bhutto V. Federation of Pakistan PLD 1988 SC 416.• Ghulam Mustafa Khar V. Federation of Pakistan PLD 1989 SC 26.• Benazir Bhutto V. Federation of Pakistan PLD 1989 SC 66.• Khan Asfand Yar Wali V. Federation of Pakistan PLD 2001 SC 607.That in Pakistan there is also consensus of the judicial opinion by several pronouncements that if any provision of statue is in conflict with the Constitution (Supreme Law) / Fundamental Rights guaranteed by the Constitution and such inconsistency cannot be reconciled , then the subordinate legislation insofar it is inconsistent can not be given effect and shall be dealt on the basis of "Theory of Reading down" as not to recognize it and determines the rights of the parties just if such statute had no application.Reported CasesMst. Ameer Khatun V. Faiz Ahmed and others PLD 1991 SC 787.Wali Muhammad V. Govt. of West Pakistan PLD 1970 Pesh. 119.Messer Elahi Cotton Mills Ltd. V. Federation of Pakistan PLD 1997 SC 582.Rauf Bakhsh Kadri V. The State 2003 MLD 777.Begum Agha Abdul Karim Shorish Kashmiri V. Govt. of West Pakistan PLD 1969 Lah. 438.Abdul Rahim V. UBL PLD 1997 Kar. 62Muhammad Umar Rathore V. Federation of Pakistan 2009 CLD 257----------------------------

yousaf · Post by **yousaf** » Fri Dec 21, 2012 9:02 pm

INHERENT JURISDICTION [1]In the context of the above topic the root word is “inhere”, meaning, “To exist as a permanent, inseparable, or essential attribute or quality of a thing; to be intrinsic to something.” [2] The term “jurisdiction” has been defined by the Black’s Law Dictionary as “A Court’s power to decide a case or issue a decree”; “A geographic area within which political or judicial authority may be exercised;”. A political or judicial subdivision within such an area.” [3] Both the terms read together would mean a permanent, essential and intrinsic power of a court to decide a case or issue a decree within the specified geographical area and within the specified judicial subdivision. In British civil procedure the terms “traditional” and “extended” inherent jurisdiction are used keeping in view the principle laid down in Grepe v. Loam. [4] The Court has an inherent jurisdiction to make an order for the purpose of preventing abuse of its procedures. This jurisdiction is a fertile source for procedural development. It was also held that the High Court has jurisdiction to make an order (which may, perhaps, properly be described as an order for an “interim remedy”) restraining a person from iniating civil proceedings without the permission of the Court, where the proceedings will be. vexatious (an extended “Grepe v. Loam” oder”) [5] In another case it was said that CPR serves to bolster the principle that, in the exercise of its inherent jurisdiction, the court has power to restrain litigants from disturbing the orderly conduct of court processes. [6] In the case of Bhamjee v. Forsdick [7] the court of appeal referred to the relevant authorities and restated the principle that every court has the power to protect its process from abuse. The court emphasized the element of the overriding objective that speaks of the need to ensure that, in dealing with a case justly, so far as practicable the case is allotted an appropriate share of the court’s resources whilst taking into account the need to allot resources to other cases. In this case, the Court re-classified “traditional” and “extended civil restraint” orders, where a court was persuaded that a solicitor had not acted negligently in continuing to act for a company which had been struck off the register, nonetheless the Court was able to make an award of costs against the solicitor from wasting the time of Court staff and that the defendants were clearly in a position to know the status of the company. [8] This term of “inherent jurisdiction” is one of the most frequently used term but at the same time, most lawyers would not be able to adequately define it. At the same time most judges are anxious to pass just and equitable orders, but are not sure of the express provision. An unprepared lawyer who is not aware of the relevant provision insists the court to pass order under its “inherent jurisdiction”, and the court is not sure whether it can do so? The inherent jurisdiction was originally conferred on the superior courts of the common law in England, and was derived not by virtue of any statue or rule of law, but by very nature of such superior courts the inherent powers being intrinsic in stem. According to accepted standards of statutory construction the very term, “inherent jurisdiction” clearly exhibits that it requires no authorizing provision, hence, the term “inherent” [9]. In determining the term “inherent jurisdiction” number of judges and jurists have resorted to the definition from “Halsbury’s Laws of England”:“In sum it may be said that the inherent jurisdiction of the Court is a virile and viable doctrine, and has been defined as being the reserve fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so, in particular to ensure the observance of due process of law, to prevent vexation or oppression, to do justice between the parties and to secure a fair trial between them.” [10]The doctrine of “Inherent Jurisdiction” applies to unlimited number of events/cases/circumstances however; we can broadly divide it into four:Distinction Between Sec-151 C.P.C, Section 561-A Cr.P.C & Inherent Powers.Powers u/s 151 CPC and under section 561-A Cr.P.C are saving clauses arise out of statute while Inherent Jurisdiction which does not arise out of statute. The purpose of Inherent Powers is:-a) To ensure convenience and fairness in legal proceedings;b) To prevent steps being taken that would render judicial proceedings inefficacious; c) To prevent abuses of process; andd) To act in aid of Superior Courts. The inherent powers are intrinsic in stem and in aid or control of inferior Courts and tribunals. [11] The power stems not from any particular statute legislation, but rather from “inherent” powers vested in a court to control the proceedings brought before it. Limitation On The Exercise of Inherent Jurisdiction I. This doctrine cannot be used to override statute or rule. The clearest articulation of such restriction is set out in the Supreme Court of Canada decision. [12] The Supreme Court of Canada held that,“Inherent jurisdiction cannot, of course, be exercised so as to conflict with a statute or rule. Moreover, because it is a special and extraordinary power it should be exercised only sparingly and in a clear case.” [13] II.Another restriction on the doctrine of inherent jurisdiction is that, it cannot be used to create new rules of substantive law. In the case of Re Regina and Unnamed Person Zuber j. of the Ontario Court of Appeal stated that “the limits of this power are difficult to define with precision but cannot extend to the creation of a new rule of substantive law” [14]AN INDEPENDENT & SEPARATE BASIS OF JURISPRUDENCEThe inherent jurisdiction may be seen as an independent and separate basis of jurisdiction possessed by the superior courts. [15] According to Jacob, the inherent power is a tool to protect courts capacity to administer justice. It constitutes that residual or reserve source of powers which the court may draw upon as necessary whenever it is just and/or equitable. [16]It is said that the powers under inherent jurisdiction are ancillary or incidental to a court’s general jurisdiction [17] and therefore are procedural in nature. [18] Keeping in view the writings of Jacob, de Jersey, Mason’s four primary functions of the jurisdiction, the following four types of powers may fall under the heading of the “Inherent Jurisdiction”i. Ensuring Conveniences and fairness in legal proceedings: • Developing rules of court and practice directions; • Remedying breaches of the rules of natural justice and setting aside default orders; • The power to correct, vary or extend and order to prevent injustice; • The power to order that a case can be heard in camera; • The power to prohibit the publication of part of proceedings; • The power to decline to proceed with a matter if the proceedings are not properly constituted; • The power to dismiss an action for want of prosecution, including cases where a prolonged or inordinate delay means that the defendant is likely to suffer prejudice; • The power to compel observance of the court’s process and obedience of and compliance with its orders; • The power to punish for contempt of court, including any conduct calculated to interfere with the due administration of justice; • The power to exercise protective and coercive powers over certain classes of persons (i.e. control over practitioners and officers of the Court); • The right to inspect documents denied to one of the parties. ii. Preventing steps from being taken that would render judicial proceedings inefficacious: • The power to order security for costs in civil actions; • The power to stay the execution of a judgment; • The power to grant certain remedies including Anton Piller Orders and Mareva Injunctionsiii. Preventing abuse of process: • The power to stay or dismiss proceedings where an action is frivolous, vexatious, oppressive, or groundless; • The power to stay proceedings where a more suitable alternative forum is available or has already been invoked; • The power to stay proceedings where a criminal charge is pending; • The power to stay proceedings for want of prosecution; • The power to order a stay of proceedings, whether permanent or temporary, whether conditional or unconditional and where such order is demanded by the circumstances of the case in order to prevent injustice. iv. Acting in aid of superior courts and in aid or control of inferior courts and tribunals;SECTION-151 CPCThere is widely spread misconception to the effect that inherent powers are exercised by the courts under section 151 CPC. The fact of the matter is that Section-151 CPC is only a saving clause. It saves and refuses to limit the inherent powers of the court which court may exercise to prevent abuse of the process of the court. The inherent powers are germane to and inherently built in the powers of the court. There is no specific and/or separate statute conferring inherent powers in a court. Conclusion:That an approach based on the “inherent jurisdiction”, Wheeler, espouses the view that due process of court guarantees may be implied by expanding our understanding of “Judicial Power” [19]-----------------------

yousaf · Post by **yousaf** » Fri Dec 21, 2012 9:05 pm

EVIDENTIARY VALUE OF DNA TEST "When the question involved does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge, then the opinions of witnesses skilled in that particular science, art, or trade to which the question relates are admissible in evidence." [1]IntroductionDeoxyribonucleic acid is commonly known as DNA that contains the genetic instructions used in the development and functioning of all known living organisms. The main role of DNA molecules is the long term storage of information. DNA found in the nucleus of the cell is termed "nuclear DNA". Touted as the most significant analytical tool introduced into forensic science since fingerprinting, DNA typing of biological evidence has far exceeded expectation. The scientific evidence has a highly technical basis that requires an expert witness with specialized knowledge to assist the trier of fact to better understand it. [2] At the outset of the study it is worth nothing that to give expert evidence is not law but subject to the exception, which are enacted in this set of Articles, [3] where the evidence of a witness's opinion is either inevitable or desirable. It is inevitable where it is not reasonably practicable for the witness to separate the observe facts from the inferences that the witness draws from the facts. Expert evidence is desirable where it consists of inferences to be drawn in relation to some matter involving special skill or knowledge which is outside the normal experience and competence. In such cases a Court needs expert help in order for the Court to discharge its duty of fair and accurate fact finding. [4]Expert EvidenceThe general rule at common law regarding expert opinion is concisely stated in Cross and Tapper [5] "A witness may not give his opinion on matters which the Court considers call for the special skill or knowledge of an expert unless he is an expert in such matters".Matters Which the Court Considers Call for the Special Skill orKnowledge of and Expert: the Helpfulness TestIt is a decision for the trial judge in each case whether the issue on which a party proposes to adduce expert evidence is one that requires such a degree of skill and knowledge as to be outside the experience of the Court. An influential statement of the principle that the admissibility of expert opinion is founded on necessity was given by Lawton L.J. in Turneer:"An expert's opinion is admissible to furnish the Court with scientific information which is likely to be outside the experience and knowledge of a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary." [6]Reliability of Expert EvidenceIn United States the response to this problem was for many years the "general acceptance" test set out in Fry v. United States. [7]"Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognised, and while the Courts will go a long way in admitting expert testimony deduced from a well-recognised scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field to which it belong."In Daubert v. Merrell Dow Pharmaceuticals Inc. [8] the Supreme Court of United States held that the Fry Test had not survived the adoption of the Federal Rules of Evidence. Finally in a landmark 1993 decision, the U.S. Supreme Court unanimously rejected the Fry Test as a basis for determining the admissibility of scientific expert testimony. The Court established a new standard based on the relevancy test and Federal Rule 702, which became known as the Daubert Standard.DNA V. EyewitnessThat the DNA profiling is better than eyewitness accounts even, was proved beyond doubt in a rape cases, paternity issues and also in other multiple cases.DNA Profiling Clue MaterialDNA is found in every living cell of our bodies and can, therefore, be extracted from a whole variety of different materials, some of them is given below:• Blood and blood stains• Semen and semen stain• Saliva• Bone marrow• Hairand hair rootsThe purpose behind the taking of many samples is to enable the process of DNA profiling. Very basically, this involves an analysis of the sample taken from the suspect (the first sample), an analysis of samples taken from the crime scene or victim (the second sample) and then a comparison of the two. The methods used routinely for human identity testing include restriction fragment length polymorphism (RFLR).IdentificationThere are three key ways to prove a person's involvement in a criminal offence:• Witnesses• Confession• Scientific evidence (DNA test).The last of these becoming more and more important in criminal evidence. The analysis of intimate and non-intimate samples may provide essential evidence in showing or refuting a person's involvement in an offence. However, the Courts have made it clear that DNA evidence alone will not be sufficient for a conviction and that there needs to be other supporting evidence to link the suspect to the crime scene at the time of the offence, that the suspect lived in the locality or had connections in the area. In the case of Denis Adams (No.1), in the course of giving judgment, said [9]"There is, however, nothing inherent in the nature of DNA evidence which makes it inadmissible in itself or which justifies a special, unique rule, that evidence falling into such a category cannot found a conviction in the absence of other evidence."Intimate and Non-Intimate Sample DefinedIn Britain, Sec. 65(2) of the Police and Criminal Evidence Act 1984 provides the definition of intimate and non-intimate samples and states:……'intimate sample' means --(a) A sample of blood, semen or any other tissue fluid, urine or public hair;(b) A dental impression;(c) A swab taken from a person's body orifice other than the mouth.…… 'non-intimate sample' means --(a) Sample of hair other than pubic hair [and includes hair plucked from the root];(b) A sample taken from a nail or from under a nail;(c) A swab taken from any part of a person's body including the mouth but not any other body orifice;(d) Saliva(e) A footprint or a similar impression of any part of a person's body other than a part of his hand;Consent while taking DNA samplePolice can take the intimate and non-intimate sample, [10] but not without consent. Taking a sample without consent may amount to inhuman treatment. [11] Where a suspect refuses, without good cause, to provide an intimate sample, the Court may draw inferences against him. Article 20(3), Constitution of India deals with accused's immunity from being compelled to be a witness against himself. High Court of Andhra Pradesh and the High Court of Karnataka respectively held in Mallela Suryanarayana v. Vijaya Commerical Bank Ltd., and Gangadharappa v. Basuvaraj that, It would not, therefore, extend to parties and witnesses in Civil proceedings or proceedings other than Criminal. [12]Use of ForceForce may be used if necessary to obtain non-intimate sample on the circumstances described. [13] In People v. Jones, the appellate Court found that a DNA statute requiring collection of a DNA sample from convicted felons was not unconstitutional. [14]In Ashe v. Garrison, defendant contended that collect a DNA sample from him so as to violate his Constitutional rights, Fourth Amendment protections against search and seizures. The Court upheld precedent enforcement to obtain a DNA sample from an incarcerated convicted felon, stating the interests of the Government in preserving a permanent identification record of convicted felons for resolving past and future crimes outweigh the minor intrusion of blood samples. [15] In India S. 53 of Cr.P.C. describe the rule of compellability. In a case of Sharda v. Dharmpal [2003] 4 SCC 493, It is the implied power of a Court to direct medical examination of a party to a matrimonial litigation in a case of this nature cannot be held to be violative of one's right of privacy. If despite an order passed by the Court, a person refuses to submit himself to such medical examination, a strong case for drawing an adverse inference would be make outEstablishment of Paternity through DNA testA paternity test will tell you if a man is or is not the biological father of a child. This includes the testing of the alleged father and the child."Justice Ali Akbar Qureshi of the Lahore High Court has held that to determine the parentage of a child DNA test is not required and the evidence of mother is sufficient. Justice Qureshi held this while dismissing a petition of Muhammad Bakhsh seeking order for conducting DNA test of his wife and her three alleged paramours. The Judge observed: according to Islamic laws edited by Dr. Tanzeel-ur-Rehman, evidence of woman would be sufficient to prove the parentage of a child. The judge in his order also quoted a reported case of Supreme Court Mst. Hamida Begum v. Mst. Murad Begum [16] wherein the Court had held that to establish the legitimacy of the child evidence of mother and the child is sufficient". [17]In a case Syed Mohd Ghouse v. Noorunnisa Begum, it was held that Court cannot compel the father to submit himself to DNA test. [18] In this paper the researcher will also discuss another piece of genetic material found within the cell, but outside the nucleus- mitochondrial DNA (mDNA).Mitochondrial DNAMitochondrial DNA (mDNA) is an exciting and important new development in forensic technology. [19] Compared with traditional nuclear DNA (nDNA) analysis, the forensic application of mtDNA typing is basically similar to nuclear DNA and is nothing more than a pattern comparision. mtDNA offers three primary benefits. [20] First, its structure and location in the cell make mtDNA more stable, enabling investigators to test old or degraded samples. Second, mtDNA is available in larger quantities per cell, enabling the testing of smaller samples. [21] Finally, and perhaps most importantly, mtDNA can be extracted from samples in which nDNA cannot, specifically bone fragments and hair shafts. [22]Evidentiary value of mDNA and nDNAAt the same time, however, the evidentiary weight of mtDNA is not equivalent to that of nDNA. While the laboratory techniques involved in analyzing the two types of DNA nearly identical, their probative values are quite different. When such additional inculpatory evidence does not exist, Courts could justifiably decide that the mtDNA evidence, standing alone, is insufficient for conviction. [23] D.N.A. test helpful in establishing the paternity of the child, [24] hence, DNA test is almost conclusive proof of one's identity. [25] Same was held in Sajeera v. P.K. Salim [2000 Cri.L.J 1208 Kerala High Court]. In the case of Azhar Amin v. The State, in which inter alia it was held where contradiction exists between medical report and ocular, testimony, in case conflict between the testimonies, medical report would be preferred. [26] In Steven Shepherd v. The Queen [27] Court found the mtDNA Evidence with the corroboration of other evidence, admissible and upheld the conviction. There are difficult questions relating to the likelihood of two persons sharing the same DNA. [28] State v. Stills [29] the Supreme Court of New Mexico evaluated an appeal from defendant who claimed that DNA results were inadmissible. The Court considered whether polymerase chain reaction (PCR) was an admissible method of DNA analysis. This Court found that the trial Court did not abuse its discretion in admitting DNA evidence under the PCR technique. This case established evidentiary reliability as the test in New Mexico for the admissibility of scientific knowledge such as DNA.Haddod CasesEvidentiary value of the DNA Test was acceptable but not in a case falling under the Penal provisions of Zina punishable under Hudood Laws having its own standard of proof. [30]ConclusionCurrently in Pakistan there is no specific statute dealing with the DNA testing while on the other hand we can find such provisions in Britain and American legislation. In this regard in our law, we can simply rely on the expert evidence provision in the Qanun-e-Shahad. There are many issues presented at trial that involve scientific knowledge, or are so complicated or beyond the common knowledge of the judiciary that someone with special skill or education is required to help the judges understand the evidence or matter in issue. The correct identification of criminals and other individuals have always been one of the most important problems in criminal and civil investigations. The DNA profiling is applicable to virtually all the body materials. The technology is hardly two decades old. It is hoped that the ongoing research will bring down both time consumption and expense in the DNA profiling technology.Mitochondrial DNA promises to be a powerful new forensic tool for identifying offenders and obtaining more accurate convictions. To insure DNA's proper use, however, judges will need to remain vigilant as with any scientific evidence. The Court's role as gatekeeper requires that it determine not only that DNA analysis is based on reliable principles and procedures, but also determine this reliability and to assess the validity of the proffered expert testimony. Finally, I would like to draw the attention of the legislature about the importance of DNA test with respect to civil and criminal litigation. In Pakistan the first DNA laboratory has been established by the National Police Bureau under its National Science Forensic Programe (NFSP) with the help of China to investigate complicated terrorism and criminal cases. The Government of China provided the technology and equipment for the laboratory. It has facilities for testing cases related to microbiology, ballistic and explosive, chemical examination and toxicology. In recent years, the scientific advances have served to stimulate a greater public awareness and use of DNA evidence in civil and criminal proceedings, the Institute of Forensic Sciences, Ministry of Public Security of China has trained two of Pakistani scientists in the latest DNA technology.

yousaf · Post by **yousaf** » Fri Dec 21, 2012 9:08 pm

PRE-EMPTION LAWS IN PAKISTANHistory of pre-emption laws can be traced back to the period of Greeks and Roman Empire; even these concepts were prevalent in Arabia before the advent of Islam. However, Islam adopted these laws with some modifications and refinements. It is pertinent to mention that same sort of rules were also implemented in Sub-Continent before the coming into being of Pakistan and can be traced back to the old Hindu scriptures. The pre-emption laws as applicable in Pakistan are applied in certain areas, governed under Muslim Personal Law with the name of ‘shuffa’, since the Constitution imposes an obligation upon government as well as legislature to adopt and modify all laws in accordance with the injunctions of Islam.Right of pre-emption means the right possessed by a person to acquire a property sold to another in preference to that other by paying a price equal to that settled, or paid by the later; and in the Mohammadan system owes its origin to motives of expediency and a desire to prevent the introduction of a stranger among co-sharers and neighbors likely to cause in-convenience or vexation. [2]The term pre-emption is composed of two words: prae--- means before, and emptio--- means buying or purchasing. Literally, ‘shuffa’ means amalgamation or conjunction of a property with other property as the property of pre-emptor is co-joined with the property sold. Legally it signifies the becoming of proprietor of property sold on payment of price paid by the vendee although he may not be consenting there to. [3] Hence right of pre-emption means a right to acquire by purchase an immovable property in preference to other person by reason of such right. [4]As a part of Islamic legal system, pre-emption laws are directly derived from one of the primary sources of Islamic law, i.e. Sunnah. It was introduced in Sub-Continent during the Muslim rule through judicial decisions. Under Muslim administration, these were applied universally irrespective of religion, creed and race. Now even in Pakistan, the same is equally applied to Muslims and non Muslims without any discrimination. As a special right, pre-emption is an exception to the general law regarding sale and purchase, because through this right pre-emptor can seek revocation of a valid contract of sale of an immovable property. If pre-emptor is successful in his claim, the vendee of sold immovable property is bound to handover the property to him, after receiving the sale price, whether he assents to do it with free will or not. This can lead to a supposition (though wrong) that Islamic shuffa is a piratic right, but, it is not so because of the principles on which it is based and more importantly due to the limitation it imposes on pre-emptor with minimum possibility of any loss, to the party to original transaction which can be avoided. Thus spirit-wise though it creates an exception to the general law of contract, at the same time it is loaded in favour of vendee; the doubts of interpretation are also, for the reason, to be resolved in vendee’s favour. [5] The objects of pre-emption laws are many folds, including but not limited to:• Exclude the stranger from a particular vicinity; • Preserve the honor and homogeneity of a particular community;• Promote familial comfort;• Protect the native feelings as regard to elitism and privacy of private life; and• Avoid disintegration of holdings.Right of pre-emption is termed as an exceptional right and according to one of the rules of interpretation, exceptions are always very restricted and limited in nature and these are to be strictly followed. Hence, in exercising this right of pre-emption, pre-emptor has to abide by very strict conditions, imposed by law in case of non-compliance of which his right is relinquished. These are two fold, (i) regarding persons who can claim shuffa and (ii) the process to be followed by such person in order to succeeded in his claim. Generally, right of pre-emption can not be exercised by everyone, as only following three classes of persons are entitled to claim this right:• Shafi-e-Sharik (co-owner of the property sold)• Shafi-e-Khalit (participator in easement rights over the property sold)• Shafi-e-Jar (neighbor, owner of immovable property adjacent to the sold property) [6]A partner in the sold property has a superior right to one who is only a partner in its easement rights; and a partner in the easement rights of a property has precedence over the neighbor. In other words, it can be said that shafi-e-sharik has superior right over shafi-e-khalit and shafi-e- khalit has superiority over shafi-e-jar. Right of pre-emption is exercisable in case of sale of immovable property only, thus excluding sales of movables. Hiba bil iwaz and Hiba bil shara tul iwaz are treated as sale for the purpose of pre-emption.Where the property is transferred through dower, charity, inheritance, gift, exchange or compensation for a claim, the right of pre-emption does not arise. It must also be remembered that, the shafi may take a share from one of several purchasers; but in case of several sellers, and only one purchaser, he must take or relinquish the whole. In other words, if five persons purchase a house from one man, the shafi may take the proportion of anyone of them. If, on the contrary, one man purchases a house from five persons, the shafi may either take or relinquish the whole. [7]Further, right of pre-emption must subsist at the time of sale, subsequent acquisition of right does not entitle holder, to get the sold property pre-empted.In order to claim pre-emption, pre-emptor has to follow below mentioned procedure, i.e.• Talab-e-Mawathibat • Talab-e-Ishhad • Talab-e-Khusumat“Talab-e Mawathibat literally means a ‘jumping demand’ or immediate demand, where the pre-emptor has to declare his intention to assert his right immediately on receiving information of sale. In Talab-e-Ishhad, pre-emptor after declaration of Talab-e-Mawathibat with the least practicable delay must affirm his intention; referring expressly to the fact that Talab-e-Mawathibat has already been made: a. either in presence of buyer or seller, or on the premises which is subject of sale; andb. in the presence of two witnesses.” [8]Talab-e-Khusumat is the third demand which means claim by litigation. This is done by the pre-emptor through filing suit for pre-emption in a court of competent jurisdiction to enforce his right of pre-emption. [9] The limitation for Talab-e-Khusumat is four months from the date:a. of registration of sale deed;b. of attestation of mutation, if the sale is made otherwise than through a registered sale deed;c. on which the vended takes physical possession of property, if sale is made otherwise than through a registered sale deed or a mutation; ord. on which pre-emptor came to know about the sale, if sale is not covered by above mentioned rules. [10] Further, for Talab-e-Mawathibat, words used are immaterial, it is sufficient that they imply a claim. Thus, if a person says ‘I have claimed my shuffa’ or ‘I shall claim my shuffa, or ‘I do claim my shuffa’ all these are good; for it is the meaning, and not the style or mode of expression, which is considered. [11] It must be kept in mind that the requirement of talabs is not the qualification on which right of pre-emption is vested. These are substantive part of pre-emption right only for purpose of its enforcement. [12] Pre-emptor must offer to pay the same price upon which original sale was made and where he considers the alleged price as non-real, he must express his willingness to take the property for actual price paid for it. [13]Where parties do not agree to the price at which the pre-emptor shall exercise his right of pre-emption, the court determines whether the price at which sale purports to have taken place was fixed in good faith or actually paid, and if it finds that the price was not so fixed or paid, it determines the market value of property as the price to be paid by pre-emptor. [14]In determining market value of property, court may consider certain predetermined guidelines. [15]Pre-emption is merely a right of substitution, in which pre-emptor does not get anything more than the right of owner, if the right of seller is defective; the pre-emptor takes over only defective title. [16]it is not a right of ‘re purchase’ either from the vendor or vendee involving any new contract of sale; but it is simply a right of substitution entitling the pre-emptor by reason of a legal incidence to which the sale itself was subject to stand in the shoes of vendee in respect of all the rights and obligations arising from sale under which he has derived his title. [17]Ownership is considered to be a pre-condition to exercise pre-emption and where vendee denies ownership of property, pre-emptor can not claim his right unless he has proved his title. [18]In other words, it can be safely said that right of pre-emption can only be asserted by owner of certain property. If a person is merely a tenant, he can not claim pre-emption on a property situated next to the property upon which he is a tenant. Right of pre-emption is heritable and transfers to the heirs of pre-emptor provided he dies after making demands. However, if pre-emptor dies without making any of the demands; the right of pre-emption extinguishes and can not be claimed by his legal heirs. [19] On the other hand, under Hanfi law, right of pre-emption is a personal right and dies with the plaintiff. If the plaintiff dies during the pendency of suit the same shall be dismissed and shall not survive to the successors of plaintiff. [20]This is a point of difference between enacted laws (in Punjab and NWFP now, Khaiber pakhtoonkhawa) and Muslim personal law (applicable in Sindh and Baluchistan). Where pre-emptor and vendee belong to same class of pre-emptor, having equal right of pre-emption, the property shall be shared by them equally.In every suit for pre-emption, plaintiff is required to deposit in the court 1/3 of sale price [21] in cash to show his willingness and bonafides to satisfy his claim for pre-emption. It is imperative for court to fix a particular date by which the deposit is to be made. The date so fixed should fall within the period of 30 days from the date of institution of suit. [22]Right of pre-emption can be relinquished by the pre-emptor either expressly or impliedly. Implied relinquishment depends upon inferences deducible from his conduct. Where he omits without any sufficient cause to perform the demands after knowledge of sale, it is inferred that he has abandoned his right; and the law, therefore, holds that such omission amounts to relinquishment. [23] Following are some instances of relinquishment:(a) Acquiescence in sale either by offering to purchase the property sold or by asking the buyer to give it up, or by taking it from him on lease; [24] (b) Where pre-emptor agrees to compound his privilege of pre-emption for compensation; [25](c) Where pre-emptor sells his property whence he derived his right; [26](d) Where pre-emptor acted as an agent for seller. [27]etcThe right once relinquished can not afterwards be resumed provided; pre-emptor was misinformed about the price, name of purchaser or article sold, secondly, unavoidable delay was due to absence, illness or incarceration. Following defences may be taken in pre-emption suit by vendee defendant:a. Non-observance of formalities of talabs. [28]b. Device to deceive law of pre-emption is not illegal; parties may transfer property legally so as to avoid pre-emption. [29]c. Partial pre-emption can be taken as a ground for dismissal of suit. [30]d. Pre-emptor purchasing property and joining stranger with him, pre-emptor loses his right of pre-emption. [31]e. Benami person has no right of pre-emption. [32]f. Property purchased for trust or waqf. [33]g. Waiver is a defence in pre-emption suit. [34]h. Collusiveness is a ground for dismissal of suit. [35]i. Mala-fide is ground for dismissal of suit. [36]In Pakistan, law of pre-emption is dealt according to provincial statues and is not applicable throughout the state. In Khaiber Pakhtoonkhawa, it is enacted in the shape of N.W.F.P Pre-emption Act, 1987. In Punjab, it is enacted in Punjab Pre-emption Act, 1991 with minor changes. There is no codified law of pre-emption in Sind and Baluchistan and in these provinces this subject is administered according to personal law of the parties. As far as Islamic personal law is concerned, Sunni and Shia laws are to some extent different in this regard, as Shias recognize this right in case of co-sharers only and that too if their number does not exceed two, they do not recognize right of pre-emption on the ground of easement/ participation in immunities and neighbor, [37] which is not the case in Sunni law. Where parties to the suit for pre-emption belong to different sects, the same is to be decided according to following rules; (1) Where vendor and pre-emptor both belong to same sect (either Sunni or Shia) the law of their sect applies;(2) In all other cases the sect of vendor applies. [38]The controversy regarding as to non conformity of pre-emption laws with Islamic injunctions has a disappointing history not only in Sub-Continent but also in Pakistan, as before 1947, four laws were enacted for this purpose. [39] After 1947, one by one, ten laws [40] were enacted for enforcing right of pre-emption but none of these laws was in total conformity with Islamic injunctions. Finally, Punjab Pre-emption Act, 1991 and NWFP Pre-emption Act, 1987 were enacted to bring these laws in accordance with the injunctions of Islam. However, in 1991, Federal Sahriat Court declared some provisions of Punjab Pre-emption Act, 1991 void, [41]and in 1994, Supreme Court affirmed the decision of Federal Shariat Court. [42]Thus, the Punjab Pre-emption Act, 1991 and the N.W.F.P Pre-emption Act, 1987, having most provisions in common, still need to be amended, so as to bring them in conformity with the injunctions of Islam.Nevertheless, law of pre-emption as stated earlier, is as old as the history of mankind. In Pakistan, it is applicable in certain areas, through specific codifications and notifications. This short essay has provided a brief introduction to these laws for a person who is not acquainted with the concept. The critics of pre-emption laws take the instance that these laws are obsolete and have lost their utility and benefits due to drastic changes in lifestyle and modern concept of multi dimensional and multi cultural cities and societies, therefore there is no need to stick to these rules which once were made for preservation of specific culture etc, as these are against the modern spirit of society as well as very nature of the right to disposal and transfer of property. These arguments seem strong, however, it should be memorized that the same laws are not universally applicable throughout the state and one has to look into different notifications and orders for enforcement of this right in a particular locality, even though it is against the injunctions of Islam to give government the absolute powers of excluding any area from the scope of an Islamic law which was intended for all areas.Keeping in view the following mentioned facts, one can not deny the application of law of pre-emption. Firstly, it is not equitable in an Islamic state to invalidate a law which has seal of express approval of Holy Prophet (PBUH); secondly, though the pre-emption right is not exercised in modern cities effectively, but its importance in rural areas can not be entirely rebutted as applicability of pre-emption law is still very strong in rural areas because of its utility of preserving integrity, peace, tranquility and domestic comfort of village communities so as to avoid the possibility of any trouble by any stranger’s interference, and lastly, high ratio of pre-emption suits in rural areas are an excellent example of showing that villagers still pay maximum heed to getting immovable property through exercising right of pre-emption.

yousaf · Post by **yousaf** » Fri Dec 21, 2012 9:11 pm

INDEPENDENCE OF JUDICIARYThis article solely based upon work done in order to reach a logical conclusion whether the functioning and administration of service tribunals in Pakistan can be brought within the ambit of Article 175 of the constitution of Pakistan 1973, which deals with the independence of judiciary and ousts executive from meddling into the affairs for judiciary and also whether service tribunals form part of the judiciary. Whether appointment of members from executive militates the concept of independence of judiciary in our country, if so what is the effect and consequences. This article also focus on the proposition whether mere performance of judicial functions by the service tribunals drag them within the strict definition and ambit of court or otherwise can be termed as court for the strict purposes of Article 175 of the constitution. INTRODUCTION“A court is permanently organized body with independent judicial powers defined by law, meeting at a time and place fixed by law for the judicial public administration of justice…………….” WILLIAM J, HUGHES…………In a large number of cases decisions of administrative tribunals are judicial in nature, in the sense that the tribunals have to decide facts and apply rules to them impartially and without at times considering executive policy. Such tribunals are “in substance courts of law” ………….. (WADE H.W.R ADMINISTRATIVE LAW 3RD EDITION)DEFINITION OF COURT AND TRIBUNAL RESPECTIVELTY: BLACKS LAW DICTIONARY“A governmental body consisting of one or more judges who sit to adjudicate disputes and administer justice”“A court of other adjudicatory body”EXPLANATIONTHE QUESTION for determination as to which forum is a court and which is not a court requires prime consideration at this moment. Procedural law qua method of presentation of lis is attracted to ascertain the essential element and character of court as such. Tribunal is bound to follow a defined procedure and to settle the disputes thereby administering the law and justice and also on very occasions enforced the fundamental rights qua terms and conditions of civil servant and examined applicability of laws and rules to the facts and circumstances of each particular case. On one hand judgments and orders passed by the service tribunal embrace the essential characteristic and perform in the administration of justice, verdicts of the tribunals have been held to be of binding and enforcing nature. Even our supreme court is clear on this issue. Reference may be made to 2009 SCMR 1 says:-“If a tribunal or the supreme court decides a point of law relating the terms and conditions of a civil servant who litigated, and there were other civil servants, who may not have taken any legal proceedings, in such a case, the dictates of justice and rule of good governance demand that the benefit of the said decision be extended to other civil servants also, who may not be parties to that litigation, instead of compelling them to approach the tribunal or any other legal forum………….”Reference may also be had to judgment cited as PLJ 2008 TRC (SER) 219, wherein Honorable Federal Service tribunal held and discussed the binding character of the judgments pronounced by the service tribunals as such. So far as the proposition as to whether the tribunal has the power to implement its own orders/judgments is concerned let me refer at this juncture case law cited as 2008 PLC CS 517 authored by Mr Justice® Tanvir Bashir Ansari, appropriate would be to reproduce the relevant extracts of the judgment below:-“……….Where jurisdiction was conferred on court or tribunal to pass an order, power to have that order implemented was implicit in that jurisdiction……Service Tribunal being a civil court within a meaning of Section 5(2) of Punjab Service Tribunal Act 1974, for the purpose of deciding appeal, it had all the powers of “civil court” provided under CPC. ………Service Tribunal could get its order enforced/executed………….Tribunal shall be deemed to be a civil court…..indeed this is a deeming clause but howsoever strictly we choose to interpret this clause. We must end up with concluding that the powers of civil court under the CPC conferred upon the tribunal are real and actual rather than being illusory only…….tribunal shall be fully competent to exercise power as detailed in Order XXI of CPC in matters relating to execution of judgments, decrees or orders. Section 36 CPC provides that all provisions of CPC relating to the execution of decrees would be equally applicable for execution of orders as well……”Service tribunal by its creation is responsible for the administration of justice rather administers justice in strict legal sense. The term justice is defined as “The fair and proper administration of justice” (Black’s Law Dictionary). Rather the term “justice” inheres somewhat “proper administration of justice” in itself and not independent of each other, co-existence thereof. Service tribunals are independent bodies, being creation of statute, are bound by law, rules and procedure as such. There is no cavil to the proposition that tribunal can follow any procedure in aid of justice apart from what has been expressly provided by the law, these features are also inherent in the tribunals. Tribunal definitely falls within the pyramid created by Article 175 of Constitution of Pakistan 1973.THE JUDICATUREARTICLE 175(1) - There shall be a supreme court of Pakistan, a high court for each province and such other courts as may be established by law.(2)- No court shall have any jurisdiction save as is or may be conferred on it by the constitution or by or under any law.(3)- The judiciary shall be separated progressively from the Executive within (fourteen) years from the commencing day.EXPLANATION2006 PLC CS 158 Judiciary consisted of various types of Courts, with the highest at the apex as ultimate Court of appeal. Out of that pyramid there were other Special Tribunals. Functions of each Court or Tribunal were defined under Constitution of Pakistan or laws made under the Constitution. Constitution or the laws, as the case may be, also specified the subjects with which those Courts or Tribunals were to deal with. Under such multiple systems, limitations were inherent so that one Court or Tribunal Could not encroach upon the defined field or subject of the other. Functions of each Court or Tribunal were circumscribed within the four corners of their defined jurisdiction.INTERPRETATION OF ARTICLE 175PLD 1995 LAH 6 ………..”Article 175 of the constitution is not self-executing provision (it lacks the characteristics of self-executing provisions). It also does not limit the bodies which can only be called court. Court or judiciary in Article 175 appear to have been used in a generic sense in contradistinction to executive bodies, the hierarchy of which culminates, in case of the federation, in the president, and in case of province, in the Governor. Courts or judicial forums thus would be all those bodies which perform judicial functions and dispense justice…………..”ESTABLISHMENT OF SERVICE TRIBUNALSREFERENCE: Address of Z.A BhuttoFollowing the mandate as expressed by the prime Minister in his speech, law was passed introducing new service structure and laying down terms and conditions of the civil servants. The most important federal law passed in this behalf was civil servant ordinance 197, which was later on replaced by Act of parliament containing similar provisions. In accordance with Article 212 of the constitution, legislation was passed establishing service tribunals relating to civil servants. The president was empowered to establish one or more service tribunals through notification specifying therein their territorial limits within which their jurisdiction would extend. The federal service tribunal consisted of a chairman and other members to be appointed by president of Pakistan. The provincial service tribunals were also established on the same lines, consisting of one chairman and other members to be appointed by the Governor of the province concerned. (Administrative Law)QURANIC REFERENCE OF INDEPENDENCE OF JUDICIARY 2006 SCMR 606 AND TRICHOTOMYScheme of the Constitution is based on Trichotomy---In the system of Trichotomy, the judiciary has the right to interpret, the Legislator has right only to legislate and the Executive has to implement---Trichotomy of powers which is already delicately balanced in the Constitution, cannot be disturbed as it grants powers to each organ to decide the matters in its allotted sphere. In fact awareness has been given to the world 1400 years ago by Almighty Allah in the Holy book of Quran in “Sura Rehman” warned the human being not to disturb balance in any sphere otherwise destruction is must. Article 4 and 5(2) of the constitution shall compel every body to act in accordance with law.APPOINTMNET OF MEMBERS FROM EXECUTIVE SIDE:The qualification of judges given in Islam as well as flowing out of various Ahadits is binding on State of Pakistan. As judiciary is controlled and regulated by a judge, therefore a judge should possess all the qualities and attributes which makes this position respectable, honorable and creates public trust and confidence in him. It is for the judge to first prepare himself morally and mentally capable to hold the post. No one is a born judge but the traditions, learning, knowledge, humility, courage and the resolve to do justice impartially, independently and without fear of favour, affection or ill-will make a judge. No matter whatsoever terminology is used for the members of tribunals, they have to fulfill the requisite qualification emanating from the Islamic declarations. .OFTEN it remains in confusion and also to the tilt of principle of natural justice whether a member of the executive/civil service sitting against his own department (where he was previously posted and held interests), decides a matter by becoming member of the service tribunal either after retirement or through transfer or deputation. Member represents the executive side, no matter whether or not he was party to that litigation within the department, could not oust his personality on the logic that he being member from the executive side (suppose member board of revenue) cannot act or decide cases in service tribunal in such a way to attract displeasure of his superiors in the revenue department. This position arises out of insecurity of tenure, unsafe posting conditions, as well as uncertain appointment scenario of such executive officers. Being not independent, neutral, impartial and fair while deicing the appeals or matters before it thereby undermines Article 175 of our constitution. What is reasonable classification is not question of fact. On the other hand superior courts have held that tribunal must decide lis before it after proper adjudication and judicial application of mind. Judges are judges as distinct from the members of executive. It is the duty of judges to decide lis after judicial application, notwithstanding the fact that each and every officer whether belonging to executive or judiciary are duty bound to apply their independent judicial mind while deciding cases before but difference still holds the field on the ground that where law requires judiciary to be independent and separate in each and every aspect from the executive, it should be done in complete scenario. Question of one being prejudicial with the appointments as such cannot arise as discussed above. The whole judiciary as well as service tribunals which are sharing judicial powers as such must be brought in conformity with Article 175 or at least to the extent that their working, functioning do not violate the concept of independence of judiciary as well as separation of powers being founded in the Objective Resolution in our constitution. They belong to judiciary, trained under high esteem, standard of modesty emanating from jurisprudential approaches. No matter member of the tribunal follows the judgments pronounced by the superior courts but interpretation rests on the jurisprudential aspect on the other hand for which again members of judiciary have been found at highest pedestal while doing so, which at least cannot be expected from the members of executive working as members of the tribunals. We are confronted with the argument that it is the legislature being competent to decide that who should be appointed in the service tribunal as member therefore. We are also mindful of the fact that function of court is jus dicere and not jus dare, as reforms of law must be left in the hands of the parliament. The basic purpose of court/tribunal is to decide disputes between the parties before it but common man’s confidence is very important to be obtained and satisfy the conscience should follow the decision. On counter it could be argued that even retired Session Judges are appointed as members of Tribunal than no violation of Article 175 could be presumed in this article. Even on that footing the retired District and Session Judge, being member of the tribunal remains on contract, appointed by the government, remain employee of the government, financially dependent on the government in complete respect, hence directly invites the intervention of executive side. The counter argument dies on this ground alone. As regards the common man’s confidence and expectations from the judicial functionaries the following dicta is relevant:-EFFECT: PLD 2006 KARACHI 629: Equality before law was one of the cardinal principles of jurisprudence recognized by all civilized societies-All persons, high or low, was equal before law. Justice must be even-handed and should not be selective even in the matter of procedure. Not desirable to adopt different procedures in the trial of cases simply on the basis of the parties being high or low. Judges should not be respecters of persons. Even a law prescribing different procedures for the trial of cases according to the status of the parties, might not stand the test of reasonable classification. Any attempt to give special treatment to a case on the basis of high status of a party could have the effect of undermining common man's confidence in the independence, impartiality and fairness of judiciary.The very first question often emerges when a person invokes the door of the tribunal that who heads the court/tribunal. Perhaps general public’s confidence especially after the post November 3 scenario rests in the judiciary and judges as such. People presume confidence from the judicial working and judicial officer being independent and fair can only counter the common man’s hope qua impartial, up to the mark and fair decision. Supreme Court on the head of the tribunal to check legality of orders passed by it is no ground to infer that if any order/judgment is passed in conflict with law, Supreme Court can remedy the situation.INDEPENDENCE OF JUDICIARY: REAL SENSE EXPLAINEDPLD 1994 SC 105Now according to the consensus of the jurists the independence of judiciary means:-1) That every judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducement of pressures, direct or indirect, from any quarter or for any reason,2) That the judiciary is independent of the executive and legislature and has jurisdiction, directly or by way of review over all issues of a judicial nature.PLD 1989 SC 673:- “……….the right to access to justice includes the right to be treated according to law, the right to have a fair and proper trial and right to have impartial court or tribunal……….unless an impartial and independent court is established the right to have a fair trial according to law cannot be achieved. Therefore justice can only be done if there is an independent judiciary which should separate from executive and not at its mercy or dependent on it……………..”NO BODY CAN BE A JUDGE IN HIS OWN CAUSEIt is fundamental principle of justice that no one can be allowed to sit as judge in his own cause. Members of the tribunal posted from the executive side as discussed above negates the independence of judiciary, cannot act fairly and impartially sitting as judge in judgment against their own pillar. Member of the executive should not be allowed to sit as judge in the tribunal where in all cases executive departments are made respondents before the tribunal. Rather it is impossible for an executive servant to pronounce judgment against his own institution/department. There are many incidents where it not so occurred, but this cannot be made ground for validation as such.CONCEPT OF INDEPENDENCE OF JUDICIARY AND INTENT OF ARTICLE 175 OF CONSTITUTION PLD 2008 SC 522In broader sense, the concept of independence of judiciary is not confined to the extent of disposal of cases by the Judges and discharging of judicial functions rather in the extended meanings, the concept of independence of judiciary is complete separation from executive authorities of the State in all matters including pay and pension which is an essential component of independence of judiciary .Supreme Court observed that all financial matters concerning with the judiciary including the pay and pension as well as other privileges of Judges are under the direct control of Executive Authorities and Executive Authorities, without recognizing the independent status of judiciary as an important organ of the State, treat it as their subordinate department---In such matters; Executive is not supposed to interfere in the affairs of judiciary in any manner. While interpreting Article 175 supreme court held that concept of independence of judiciary is not confined to the extent of disposal of cases by the judges and discharging judicial functions rather in the extended meaning, the concept of independence of judiciary is complete separation from executive authorities of the state in all matters………”PRINCIPLE OF SEPARATION OF JUDICIARY: - PLD 1993 SC 341 “……….Separation of judiciary is the cornerstone of independence of judiciary and unless judiciary is independent, the fundamental right of access to justice cannot be guaranteed. One of the modes for blocking the road of free access to justice is to appoint or hand over the adjudication of rights and trials of offence in the hands of the executive officers. This is merely a semblance of establishing courts which are authorized to decide cases and adjudicate rights, but in fact such courts which are manned and run by the executive authorities without being under the control and supervision of the judiciary can hardly meet the demands of the constitution……….”JUDICIAL ADMINISTRATION AND ROLE OF JUDICIARY:-: whether appointment of members of tribunal (executive class) negates the principle of separation of powers and independence of judiciary. ZAFAR ALI SHAH CASE PLD 2000 SC 689: ……………………………a system of constitutional governance, guaranteeing fundamental rights and based on the principle of trichotomy of powers, such as ours the judiciary plays a crucial role of interpreting and applying the law and adjudicating upon disputes arising among governments or between state and citizens or citizens inter-se. the judiciary is entrusted with the responsibility for enforcement of fundamental rights. This calls for an independent and vigilant system of judicial administration so that all acts and actions leading to infringement of fundamental right are nullified and the rule of law upheld in the society………………………… the constitution makes it the exclusive power/responsibility of the judiciary to ensure the sustenance of system of “separation of powers” based on checks and balances. This is legal obligation assigned to judiciary. ………judiciary has to be properly organized and effective and efficient……….and has also to be strong and independent enough to dispense justice fairly and impartially. It is such an independent judiciary which can foster an appropriate legal and judicial environment where there is peace and security in the society……………..”INSECURE TENURE OF MEMBERS OF SERVICE TRIBUNAL and that too UNDER EXECUTIVE CONTROL: EFFECT PLD 2008 SC 522The judicial history of Pakistan is full of victimization of the judges of superior courts at the hands of the executive and irrespective of the fact that independence of judiciary has always been considered a threat to the executive, the judges collectively as well as in their individual capacity has always been functioning according to their conscience. The judiciary is an important organ of the state and without the independence at all levels in all affairs including the financial matters, the right to access justice cannot be ensured, therefore independent and strong judiciary for good governance and welfare of the people is essential and thus the matter relating to the appointment or removal of judges from their offices , security of their tenure, pay and pension and all other privileges must not be in the executive control and domain of executive rather the role of the executive in such affairs of the judiciary must be curtailed to the extent of only general supervision, so that judicial reforms in real sense can be made to the requirement of the judiciary. It is thus imperative that all matters concerning with the judiciary should be decided by the judicial policy making body, a highest statutory body in the judiciary which consists of the chief justices of all high courts and chief justice of Pakistan , as its chairman. The direct and indirect control of the executive authorities in the affairs of the judiciary has always been a hindrance in the administration and dispensation of justice and also the smooth functioning of judiciary.NATIONAL JUDICIAL POLICY 2009On somewhat similar premises National Judicial Policy 2009 was framed by the National Judicial Policy Making committee, statutory body and nation’s apex judicial forum. The thrust of National Judicial Policy is to consolidate and strengthen the independence of judiciary, thereby enabling the judicial organ to exercise institutional and administrative independence and judges to have decisional independence to decide cases fairly and impartially. Apart from other provisions and recommendations vide National Judicial Policy 2009, it mainly focused on separation of judiciary from the executive completely. Some extracts there from are reproduced below:-A: - INDEPENDENCE OF JUDICIARY(3):- Instead of appointing retired judges/judicial officers as presiding officers of the special court/tribunal, qualified serving judges be appointed against these posts, in consultation with the Chief Justice of the High Court. (5):- All special courts/tribunals under the administrative control of Executive must be placed under the control and supervision of the judiciary, their appointments/postings should be made on the recommendation of the Chief Justice of the concerned High Court.The word “CONSULTATION” was best defined in AL-JEHAD TRUST CASE CITED AS PLD 1996 SC 324 “The meaning of the word “Consultation” is very pivotal in nature because the independence of the judiciary and the appointments of the judges have close nexus with it or in other words deep rooted in it……….the word consultation used in the constitutional provisions relating to the judiciary is to be interpreted in the light of the exalted position of the judiciary as envisaged in Islam and also in the light of the several provisions of the constitution which relate to the judiciary guaranteeing its independence …..The institution of judiciary in Islam enjoys the highest respect………..consultative process is mandatory and without it no appointment can be made.” On the same principle while appointing/posting members of service tribunal the competent authority should consult with the chief Justice of high court in case of province and that of Pakistan in case of federation.SERVICE TRIBUNALS SHARE JUDICIAL POWERSMEHRAM ALI V/S FEDERATION OF PAKISTAN PLD 1998 SC 1445“……….any court or tribunal which is not subject to judicial review and administrative control of the high court or the supreme court does not fit in within the judicial frame work of the constitution……….tribunals/courts which are manned and run by executive authorities without being under the control and supervision of high court in terms of Article 203, cannot meet the mandatory requirement of the constitution……….constitution recognizes only such specific tribunals to share judicial powers with the above courts, which have been specifically provided by the constitution itself: Federal Shariat court, Tribunals under Article 212, Election Tribunals. It must follow as a corollary that any court or tribunal which is not founded on any of the articles of the constitution cannot lawfully share judicial powers with the courts referred to in Article 175 and 203……….the hall mark of our constitution is that it envisages separation of judiciary from the executive in order to ensure independence of judiciary and therefore, any court or tribunal which is not subject to judicial review and administrative control of the high court and or the supreme court does not fit in within the judicial frame work of the constitution……….”APPEAL TO SUPREME COURT AGAINST JUDGMENT OF SERVICE TRIBUNALWhere an appeal is preferred against the judgment of service tribunal before Supreme Court and apex court affirms the judgment of the tribunal, the verdict of the tribunal merges into that of judgment/order of Supreme Court as such thereby Implementation is mandatory upon the concerned functionaries under Article 189 and 190 of Constitution of Pakistan 1973. Tribunals cannot be said to have been working on administrative side. When proceedings are culminated by the department, appeal is filed before the tribunal, it is a judicial forum sitting as judge/court against the executive to check and legality of orders passed therein. Appeal before the tribunal is continuation of proceedings but it cannot be assumed that tribunal also acts in strict sensor like executive authorities or on the administrative side. Tribunal can assume the powers of departmental authorities in proper administration of justice, but it remains within pre-defined parameters and functions assigned by Article 175 and 212 of constitution of Pakistan as such. On similar analogy when appeal is filed before the Supreme Court, it is treated as judicial proceedings before the court. Hence the proceeding of the tribunal (judicial functionary) is challenged in the same hierarchy i.e before Supreme Court of Pakistan. GENERAL POWER OF SUPERINTENDENCE AND ADMINISTRATIONWhether the service tribunal in Punjab can be termed as sub-ordinate to High court for the purpose of superintendence requires consideration. Also the case of the Federal Service Tribunal in relation to Supreme Court. On somewhat similar premises as in Indian Constitution Tribunals in Pakistan Share and perform judicial functions with courts flowing out of Article 175. On the other hand Lahore High Court in case cited as PLD 1996 LAHORE 542, held that “………. So wherever judicial power vests in a body/forum, whether designated as a court or tribunal and any right or liability conferred on or ensuing under a law is to be determined, the control and supervision over the said body/forum/court or tribunal under the mandate of the constitution has to vest in the High court……….”Based on this principle Provincial Service Tribunals as well as Federal Service Tribunal in mandate of Article 175 should be placed under the supervision and direct control of respective high courts and Supreme Court of Pakistan respectively to ensure independence of judiciary and total elimination and interference of executive into the affairs of the judiciary as such. No matter whatever functions they perform but should be placed under direct judicial administrative control. Even otherwise SUPREME COURT of Pakistan as well as respective high courts can direct the competent legislature to amend the law to bring within the ambit of Article 175 of constitution of Pakistan.METHOD OF APPONTMENT OF MEMBERS IN THE TRIBUNALSSo far as this proposition is concerned, it requires deep study and exposition of law, but in my humble view let the respective high courts be empowered through general notifications to hold competitive test for appointment of members of tribunals in this regard. In this way tribunal will be helpful working under the direct control of judiciary. However there is no hindrance in appointment of serving District and Session judges as members of service tribunal through out country as it would be in the scheme and mandate of Article 175 of constitution of Pakistan 1973.CONCLUSION.Judiciary has been termed as a watchdog and sentinel of the rights of the people and the custodian of the constitution. The judiciary holding such exalted position must be independent and separate from executive. After Post November 3, 2007 scenario, nation as a whole has deepened its expectations in judiciary as this institution offered a ray of hope to this trembling country, creating therein confidence , trust and courage for rule of law in its true sense. In my humble view the honorable Supreme Court of Pakistan is quiet competent to direct the concerned quarters to implement Article 175 in its true sense by eliminating the intervention of executive into the affairs of judiciary from each and every angle, so that we could feel proud having independent and impartial judicial system for all times to come.

yousaf · Post by **yousaf** » Sun Dec 23, 2012 1:38 pm

IS THERE CORRUPTION IN SUBORDINATE JUDICIARY?Superior judiciary, composed of Supreme Court of Pakistan and High Courts of the Provinces, by nature of its work of administration of justice, is invested with authority to declare the content and intent, naked or veiled, of law and dispense justice in accordance therewith.According to Article 201 of the Constitution of Pakistan, decision of a High Court, to the extent it decides a question of law, is binding upon the subordinate judiciary, functioning within its territorial jurisdiction.Though law is one but it is known to all and sundry that different High Courts have, more often than not, taken different view of it in their respective jurisdictions. The subordinate judiciary of a High Court is bound to follow the view of its parent High Court, in preference to the view of another High Court, however convincing and weighty it may be. It means that measure of justice within the territory of a High Court may be different from the measure of justice obtaining in the other High Court.Such divergence of views of different High Courts is amenable to harmonization by the Supreme Court when it hears appeals against such conflicting judgments under Article 185.It, while deciding appeals, gets an opportunity to prune or brush off discordant edges of judgments of High Courts and establish oneness of law in the country. But, unfortunately, by the time the Supreme Court brings harmony in the interpretation of law, much injury or wrong must have been suffered or undergone by people living within the territorial jurisdiction of a High Court which had taken perverse view of law.Just as in case of a High Court, so in the case of Supreme Court, its decision on a question of law, or based upon or enunciates a principle of law, is binding on all other Courts in Pakistan, under Article 189 of the Constitution of Pakistan.The framers of the Constitution, visualizing that there is a possibility of human error in rendering a decision, have conferred upon Supreme Court a power of review under Article 188 to enable it to review any judgment pronounced or any order made by it, subject to any Act of parliament or of its own rules.It is interesting to note that in the Constitution no finality is attached to the decisions of Supreme Court. These are always amenable to review where the ends of justice require. Let not the Supreme Court tie down its hands in the matter of review. There is no end to review petitions. There can be successive review petitions until the conscience of the Court is satisfied as to the justice having been achieved in true spirit.It is all the more true to say that people earning adverse decision from Supreme Court grumble about injustice. It is very likely that if a higher Court is provided over the Supreme Court, some of its decisions may be reversed.Theoretically it has to be conceded that wrong decisions rendered in good faith have to be accepted in good grace, and authors of such decisions be excused, and injustice ensuing therefrom be tolerated and endured at the altar of grant of enough freedom to a judge to act freely, according to his good conscience, in rendering justice. In spite of this allowance of error, it is to be negligibly marginal. But what is unbearable is that when decisions are deliberately tailored to inflict injustice. It is such kind of decisions which have gravely polluted the pond of justice.The cases, belonging to this category, which come to the forefront of my mind are the Federation of Pakistan versus Maulvi Tamiz-ud-Din (PLD 1955 FC 24), the Reference by Governor General (PLD 1995 FC 435) and Dosso versus State (PLD 1958 SC 533).It was admitted by Muhammad Munir, Chief Justice of Federal Court that it was a political decision.The last case in the series of such cases, is Zafar Ali Shah versus Perviz Musharraf, Chief Executive of Pakistan (PLD 2000 SC 869).In this case Supreme Court, in spite of the Constitution of 1973 having been subjected to the Provisional Constitution Order I of 1999, and Supreme Court or High Courts and any other Court having been debarred from making any order against the Chief Executive or any other person exercising powers or jurisdiction under his authority, and Fundamental Rights in conflict with the Proclamation of Emergency of 14th Day of October, 1999, having been suspended, and taking oath by Judges under "Oath of Office (Judges) Order 2000 that they shall be bound by the provision of the Order, the Proclamation of Emergency of the 14th day of October, 1999 and the Provisional Constitution Order of 1999, and shall not be calling in question, the validity of any of the provisions thereof, had still face to hold that it has the jurisdiction to decide the validity or legitimacy of the revolutionary regime. It was nothing but a farce and deception. The Supreme Court, in fact, laid prostrate before the usurper and it was only to win his favour, that it not only validated his aforesaid actions but also, conferred upon him the power to amend the Constitution, for a period of three years, to achieve his declared objectives.The Supreme Court, while conferring power of the amendment of the Constitution upon the usurper must have assumed that it has the power to allow amendment of Constitution, while it did not have. Even otherwise the usurper was not in need of such conferment. It was only done to deter the people to raise objection to the authority of the usurper and submit to the Martial Law.It was all futile to write judgment sprawling over 354 pages when the sum total of it was to be complete subjugation to the usurper.If we take this judgment in real perspective then it means that judges, who were members of the Bench, were acting as accomplices with the usurper in imposing and perpetuating Martial Law in the country.I genuinely feel that if the Supreme Court had not endorsed the action of Army takeover the revolutionary regime might have found it impossible to earn recognition from other states and the country might have been saved the ignominy of military rule.It was only in the case of Asma Jillani versus the Government of the Punjab and another (PLD 1972 SC 139) that the Supreme Court had overturned the martial Law imposed by General Muhammad Yahya Khan, but the said judgment had come when the usurper had left the scene.Rendering of decisions against statuteLeaving aside the dubious behavior of the Supreme Court in siding with the usurper, its rendering decision against statute is deplorable. It is difficult to enumerate the exact number of such cases but a few of them are cited hereunder to make out the point that when the Supreme Court decides a case against statute the subordinate judiciary is entrapped in a dilemma, as to follow the Supreme Court or the statute. In making a choice between the two it gets an arbitratorial role. It may follow the one or the other. A corrupt judge makes money in such a situation.Hereunder are given some instances:(I) Article 23 of the Limitation Act, 1908:It reads as under:"For compensation for malicious prosecution—one year when the plaintiff is acquitted or the prosecution is otherwise terminated."The Supreme Court in Muhammad Yousaf versus Syed Ghayyur Hussain Shah and others (1993 SCMR 1185) held that in a suit for damages sustained as a result of malicious prosecution is 6 years under Article 120 of the Limitation Act, and Article 23 was not taken into consideration.Karachi High Court was confronted with this question in Nasir Raza Jaffery versus M/s. Macter Pharmaceutical (Pvt.) Ltd. (PLD 1998 Kar. 250). In this precedent case, suit for damages on account of malicious prosecution and defamation was filed after lapse of 3 years and 24 days and plaintiff relied upon the said judgment of the Supreme Court to assert the suit to be within time. The High Court, by reference to Article 23 of the Limitation Act, held the suit to be barred by time.(II) Section 13(3) and Section 13(4) of the Punjab Pre-emption Act, 1991:Section 13(3):"Where a pre-emptor has made Talb-i-Muwathibat under sub-section (2), he shall as soon thereafter as possible but not latter than two weeks from the date of knowledge make Talb-i-Ishhad by sending a notice in writing attested by two truthful witneses, under registered cover acknowledgement due, to the vendee, confirming his intention to exercise the right of pre-emption” Section 13(4):"Where a pre-emptor has satisfied the requirements of Talb-i-Muwathibat under subsection (2) and Talab-i-Ishhad under sub-section (3), he shall make Talb-i-Khusumat in the Court of competent jurisdiction to enforce his right of pre-emtion".The Supreme Court in Abdul Malik versus Muhammad Lateef (1999 SCMR 717) held that non-attestation of notice Talb-i-Ishhabd by two witnesses is not fatal. It was enough if the witnesses were taken to the vendee before service of notice, bearing no attestation of the said witnesses, and the provisions of Section 13(3) were held to be procedural in nature and not mandatory.The said ratio was clearly against the emphatic and mandatory words of both sub-sections (3) & (4) of Section 13.The Supreme Court in E.A. Evan's Case (PLD 1958 SC 536) by reference to requirement of service of notice, under Section 30 of Displace Person (Compensation and Rehabilitation) Act, 1958, by a transferee of evacuee property to occupant thereof as a tenant under the Rehabilitation Department to intimate him about the transfer of property to the sender of the notice, it was held that notice envisaged under the said section must be given in the manner detailed by law and the information received by occupant about transfer of property otherwise than through notice is of no legal consequence. It was emphasized therein that if law requires a thing to be done in a specific manner then it should be done in that manner and doing it in another manner shall be illegal.The said judgment was not taken into consideration.In an earlier judgment reported in 1998 SCMR 2207 it has been held that if the language of the statutory provision is unambiguous and the statute's meaning is clear then the statute must be accorded the express meaning without hesitation.Abdul Malik's judgment was considered in 2005 SCMR 1228 and its ratio was exposed to be not tenable in view of mandatory nature of provisions of Section 13 and in doing so 2004 SCMR 409 and 2004 SCMR 737 were relied upon.(III) Clause XII of Section 7 of Court Fees Act, 1870:It reads as under:"In suits not expressly provided for in this section, according to the value claimed, but such value shall not be less than a value which would attract a Court fee of less than fifteen rupee."This clause was added by Court Fee (Amendment) Ordinance 1962.Previous to the addition of the said clause, Article 1 of the First Schedule held the field in respect of suits not otherwise provided for in the Act. Suits falling outside the ambit of clauses (i) to (xi) of Section 7 were covered by the said Article 1, which served as a residual provision to deal with valuation of suits for purpose of Court fee, but with the induction of clause xii to Section 7, Article 1 of the First schedule has been relegated to the background and has become redundant and obsolete for the reason that no suit beyond clauses (i) to (xi) and the residuary clause xii has been left which can be said to be not otherwise provided for under the Act, as per wording of Article 1 of the First schedule.Since suits for cancellation of documents, suits for simple declaration and suits for possession of property by a tenant against his licensee, are not covered by clauses (i) to (xi) of Section 7, therefore such suits shall fall under clause xii.As to suit for possession by tenant, Dacca High Court in PLD 1967 Dacca 113 has held that it falls under clause xii. Though in NLR 1981 Civil 126, 1982 CLC 9, 1993 CLC 1391, and 2002 CLC 1549, it has been held that suit for cancellation is required to be valued according to the value given in the document, but in all these cases clause xii of section has not been taken into consideration.Delivery of divergent decisions by different Benches of the Supreme Court and of High Courts, negate the oneness of view of a Court on a point of law.The Constitution, as per Article 176, relating to the Constitution of Supreme Court, provides that it will consist of a Chief Justice and so many other judges as may be declared. Similarly, as per Article 192, relating to High Court, provides that it will consist of a Chief Justice and so many other judges as may be determined.Going by the language of the said Article the Supreme Court and the respective High Courts are to act as one entity.But from day one they have not so acted. They act in parts, in the form of Benches, single, divisional, larger and full, as may be determined by the Chief Justice.The decision of a bench is taken to be a decision of the Court and is not challengeable in the same Court, except, in the case of High Court, a few categories of cases are such, in which Intra-Court appeal is provided.It is a matter of common observation that on account of diversity of decisions of Benches, the superior Courts have lost oneness. The diversity sometimes is so bold and sharp that it becomes difficult to say as to what is the view of Supreme Court or of a High Court, on a point of law.Hereunder, I quote an example of divergence of opinion of Supreme Court Benches on the point as to whether it is necessary to mention in plaint, time, date, and place of performance of Talb-i-Muwathibat in a pre-emption suit. In 1999 SCMR 958, 2000 SCMR 314, and 2000 SCMR 329, it has been held that it is not necessary to give detail of time, date and place of performance of Talb-i-Muwathibat, but, conversely, in PLD 199 SC 121, PLD 2003 SC 315, PLJ 2995 SC 844, PLD 2006 SC 309, 2007 SCMR 515, 2008 SCMR 404, and 2008 SCMR 1682, it has been held that it is necessary.The draftsmen of a plaint shall be in a fix as to mention or not to mention the said particulars in the plaint, and so will be difficult for a Court to make the mentioning or not mentioning of the said detail, a ground for disposal of a case.Is it possible to avoid conflicting version of laws? The answer is in the affirmative. It is very easy. Suppose a Bench holds that mentioning of details of Talb-i-Muwathibat and that of Talb-i-Ishhad in the plaint is necessary. The other Bench, subsequently seized of the same question, for good reasons, thinks that it is not a correct view, then the latter bench instead of giving its opposite decision, should ask the Chief Justice to constitute larger Bench to settle the issue once for all, and all Courts in Pakistan will follow that view. It will bring about oneness of view of a law in the country. It will also weed out corruption in the subordinate judiciary.Patient and considerate hearing at Supreme Court level is very essential.If the subordinate judiciary or the High Court commits error in appreciation of fact or law then there is possibility of being corrected at Supreme Court level. But if the Supreme Court commits an error it is irreparable and the wrong done is irreversible. The Supreme Court being the last Court in the hierarchy of the Courts in the country, a greater responsibility rests upon it to eliminate any chance of miscarriage of justice. Each and every aspect of the case and every question of fact and law should not be left unconsidered and undecided for the simple reason that lower Courts have already given finding. The finding given by the Courts below, though concurrent, should be re-appraised by reference to challenge thrown to it, to eliminate chance of injustice.To highlight the point, I, hereunder refer to a case of ejectment. One of the co-sharer of a property, not collecting rent from tenant, claiming to be exclusive owner of the property by way of partition, filed ejectment petition. The tenant, inter alia, contested this averment and denied the relationship of landlord and tenant, on that account. The Rent Controller held that petitioner has failed to prove his exclusive ownership of the property but as a co-sharer he is competent to file ejectment petition and, as such, relation of landlord and tenant exists and ordered the ejectment of tenant.The tenant pressed his point before higher forums, including the Supreme Court, that specific plea of the petitioner of being exclusive owner of the property having not been proved, Rent Controller, on his own, could not coin a new plea for petitioner, that he, as a co-sharer could file the ejectment petition and the petition was worth dismissal on the failure of petitioner to prove to be exclusive owner of the property.None of the Courts had taken into consideration the said plea of tenant and it remained undecided and the ejectment order was maintained by the Supreme Court.There is no cavil with the proposition that a co-sharer can file ejectment petition, but when a co-sharer asserts exclusive ownership and fails to prove it then the Court cannot lend him the plea of co-ownership to obtain ejectment order. It has been held by the Supreme Court in 2006 SCMR 562 that a party cannot deviate from his pleadings, and the Court cannot coin a new plea for a party and decide the case on that basis.The tenant, on his failure before the Supreme Court, had gone mad and ultimately died, with the grief that his plea was not attended to by any Court. God alone knows as to how many people have been denied justice, just because the Supreme Court, thinking it to be answerable to no one, evades to go deep into the facts of a case to discover truth and justice simply on the ground that case stands closed by the finding of the fact by Courts below.In the case of Abdul Malik versus Muhammad Lateef (1999 SCMR 717), a vendee has been deprived of 12 kanals of land purchased by him. Since the ratio of that judgment has virtually been set at naught by a chain of rulings, including 2005 SCMR 1228, will it not be good for the Supreme Court to review the said judgment and restore the land to the vendee.Spirit of justice can only be said to prevail if the party against whom decision has been rendered admits that justice has been done. Such a standard is not difficult to achieve. All that it needs is that the pleas of both the parties are represented in the judgment in their true perspective and are dealt with reason.Supreme Court can do a lot in this respect by setting example for the Courts below. If the Supreme Court is not answerable to anyone but it is at least to ALLAH, who is pleased with justice and abhors injustice.

yousaf · Post by **yousaf** » Sun Dec 23, 2012 1:39 pm

JUDICIAL ACTIVISM AND SUO MOTOJudicial Activism:The concept of judicial activism was created and introduced by "Arthur Schlesinger Jr." (an American historian and social critic) to the public in a Fortune magazine article in January 1947. [1]For an informal definition one can phrase out Judicial Activism as being the process or concept in a judicial system that justifies making decisions which are contrary to established precedents and laws, whether statutory or constitutional. Such decisions are applauded by the general public rather than juristic philosophers and writers.Numerous legal and non-legal sources have attempted to define the word and have done so successfully in various different expressions. Some of the good sources need to be quoted here as follows:"A philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions, usu. with the suggestion that adherents of this philosophy tend to find constitutional violations and are willing to ignore precedent." [2]The term "Judicial activism" is different from the term "An Activist judge" and should not be confused to mean the same because the former relates to the definitions and concepts defined above while the latter may be referring to a judge who has not literally overturned an established rule or principle but has just given an important judgement/decision on an important law point. Important decisions on points of law even though not in conflict with established laws will be an activist decision by an activist judge. Thereby meaning that the progress of the judiciary is also linked to the term "activism".The concept of judicial activism especially to laymen is more of a "protector of individual rights" rather than a concept of "restraining constituional violations even if it involves ignoring precedents" even though both concepts are one of a kind when it comes to their effect in their application.The Debate - Arguing For and Against Judicial Activism:It is difficult to say whether the concept of judicial activism has made more critics of itself or supporters but in the view of its critics of `the application of the concept usurps power of the legislature, thereby diminishing the rule of law and democracy'. The main objection with the concept is that in the view of its critics, the Courts (Judiciary) are established to rule upon (uphold) the rules and legislation drafted by the legislature and not to check the validity of the legislation. The duly elected participants/members of the parliament have the sole authority to make laws and the courts are only a forum that would interpret them and decide whether someone is following it or deviating from it. The supporters of the concept of "separation of powers" also argue along the same line by arguing that the three organs of the state i.e. the Legislature, the Executives and the Judiciary should operate individually and independently rather than stepping onto the jurisdiction of the other organs of the state.However on the other hand the people who have defended judicial activism argue that it is the duty of the court and the court should take upon itself to guarantee the rights of individuals against the powerful hands of the few powerful people in the society. Laws that are inconsistent with fundamental rights should be declared to be void with no effect no matter how much loss the legislature has borne in introducing that illegal law. It is the view of the supporters of the concept that it is also the job of the courts to uphold the rights of the minority no matter what political pressures the court faces in making that decision. The country has to be "socially equal" in everyway to achieve full democracy. It cannot make double standards as to its own policy making and the courts should be there to watch that such double standards have not arisen between the general public and the government.Another critic of the concept is the present Chief Justice of America, John Roberts who has condemned the concept of `judicial activism' in the following words;"Judges are like umpires. Umpires don't make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ballgame to see the umpire."Furthermore the Chief Justice has stated that `the courts are not under a commission or mission to solve the society's problems'. The courts in his view are only the adjudicators upon fact and law and they should responsibly do only the duty of interpreting law.An example of a U.S case that involved important judicial activism is quoted as follows:Dred Scott vs. Sandford [3]This case also known as the "Dred Scott Decision", was a lawsuit, pivotal in the history of the United States, decided by the United States Supreme Court in 1857 that ruled that people of African descent, whether or not they were slaves, could never be citizens of the United States, and that Congress had no authority to prohibit slavery in federal territories. The decision for the court was written by the then Chief Justice of Amercia, Roger Taney. The implications of the decision are not under discussion because the important point to note here is that the Court took upon itself to lay down the law as opposed to interpreting it which is the primary duty of the Judiciary. Judicial Activism in Pakistan:Judicial activism in Pakistan is becoming a norm rather than an exception. The judiciary in Pakistan has assumed the role of upholding the constitutional rights of the citizens of Pakistan themselves, ensuring that the fundamental rights of the public are not being infringed by the powerful political parties at their whim.One of the various modes in which judicial activism is practiced or is entrusted upon the courts to practice is through the concept of "Public Interest Litigation" (hereinafter referred to as "PLI"). The main appellate Court which is the court of last resort is the Supreme Court of Pakistan. The Supreme Court has been involved in historical problems which have frequently changed the level of judicial activism in Pakistan but the soaring level at which it has been for the past few years has never been witnessed before.Pakistani courts have been involved in judicial activism since a long time back and one of the examples of such activism can be witnessed from the 1988, Saifullah's case. Despite the strong pressure by the executives, it was made mandatory that elections would be held on party basis. Later, the Lahore High Court and the Supreme Court both declared that the government of "Junejo" was dissolved unconstitutionally. The matter came down to an interpretation of Article 17 of the Constitution and by taking a very dynamic interpretation of Article 17 of the Constitution, the Nawaz Sharif government was restored in 1993. Had the Supreme Court interpreted the article literally, the case should have been heard by a High Court at first instance.Therefore it is evident that the Pakistani courts have been involved in judicial activism since a long time back whether it is activism in relation to political affairs or activism for the protection of individual rights and the upholding of the rule of law.The recent example of the "clash" between the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry and the President of Pakistan, can be attributed to Judicial Activism in Pakistan. Prior to the tussle between the two, the Chief Justice of Pakistan ("CJP") had been taking various harsh actions against several governmental authorities/bodies under the shield of Suo Moto. When the decisions of the CJP became agonizing for the President and his reign, he removed the CJP in one day by exercising the so-called powers of the President in the mistaken capacity of the Chief of Army Staff. Suo Moto:The concept of suo moto (in the context of Pakistan) can be defined as an inherent right of the Supreme Court and High Court of Pakistan to take cognizance of any act/omission of any public functionary in order to check the legality and more often, the legitimacy of any action of that public functionary. Anything under the sun can come under the notice of the two Apex courts of Pakistan.In Pakistan the courts have gradually developed this doctrine and are acting upon it on a day to day basis whenever they get a chance. In other words a special tool named Suo Moto has been created by the Pakistani courts to legitimize the taboo of "Judicial Activism". The two terms "Suo Moto" and "Judicial Activism" are different concepts and are not interchangeable with each other; in fact the former is a part of the latter. Suo Moto can contribute to judicial activism but there are various other methods by which judicial activism can take place.Suo moto has reached the status of an "inherent right" in Pakistan, in other words it means that it is perfectly legitimate for the Judiciary (High Court and Supreme Court) to interfere in the domain of other organs of the state. This in turn means that the doctrine of "Separation of Powers" is directly in conflict with the doctrine of Suo Moto.ConclusionWhile concluding this discussion on Judicial Activism and Suo Moto, it is necessary to evaluate the public perception of judicial activism in Pakistan. For the general public in Pakistan, suo moto action has been a divine revelation, something that can be equated to a blessing. The poor and suppressed community being the majority of the community in Pakistan is in strong favour of the doctrine of suo moto. The current CJP has taken numerous decisions behind the facet of suo moto jurisdiction including decisions on the enforcement of human rights and on cases such as the `missing persons' cases.One of the manifold reasons for the success of the concept of Suo Moto is that it is effortlessly accessible to the poor (which is the majority class in the country) so for the poor and needy only a simple hand written "letter" can initiate proceedings in the highest court of Pakistan. The people who cannot even imagine affording the towering fees of big named attorney's can simply request the CJP through a letter about any malpractice of a governmental authority and the CJP (especially the ex-CJP) would be more than willing to cure the defects by ordering the needful.In this way suo moto action is a blessing for those who have been victimized by the might of governmental authorities. Moreover another positive effect of the suo moto action is that the governmental authorities in order to save themselves the embarrassment of being called inefficient or ultra vires through court try to restrain themselves into doing acts which are within its legal sphere.The new concept may be a violation of the rule of separation of powers but the question then arises, do we actually need a concept such as "separation of powers"? Is the legislature and executive doing anything according to the rules of natural justice so that the citizens and the organs (which are made up of the citizens themselves) are totally honest with the country? Instead of making the situation worse, the judiciary is helping the country in developing integrity and responsibility towards citizens, guaranteeing the enforcement of their fundamental rights and constitutional rights as promised in the Constitution of the Islamic Republic of Pakistan, 1973.A developed country like the U.S which only requires checks and balances for its smooth running can afford to apply and abide by such a doctrine but where a country like Pakistan is being dictated by the military for the past 10 years, it is better for someone to take upon him/her self the responsibility of providing justice and who else is better equipped or legally capable to provide justice other than a Judge of the Supreme Court of Pakistan?The recent decision of the Supreme Court of Pakistan regarding the holding of two posts simultaneously by the President i.e. the posts of Chief of Army Staff and the President of Pakistan has taken the general public by surprise (the Supreme Court has held with a majority of 6-3 in favour of the President that he can legally hold the two concerned posts at the same time) because the intensity and frequency of judicially active decisions since the past few months had created a strong belief in the general public's mind that the current President would not be allowed to keep both posts simultaneously.Is this decision a product of judicial activism as well or has the government used its sticks against the judiciary to calm its activism down? No matter what explanations the Supreme Court gives in its detailed order, the language of Article 63 of the Constitution of the Islamic Republic of Pakistan is clear and unambiguous. It clearly lays down that a member of Majlis-e-Shoora (the Parliament) cannot be a person who has been in the Civil Services of Pakistan or has acted and worked in a post which is controlled or owned by the government.This decision can also be viewed as judicial activism by the judges by ignoring the express prohibition in Article 63 of the Constitution of the Islamic Republic of Pakistan but this time the judicial activism was in favour of one man at the expense of a nation built up of millions of people.A final verdict upon whether judicial activism is favorable or not can be concluded in making a statement that such activism is favorable for a third world country like Pakistan where justice and equality is not at arms length for the poor. Judicial activism has helped societies all over the world in developing their laws, however such activism should be checked and balanced so that the judiciary does not become the legislature and the interpreter of law. The role of the judiciary is to interpret the law as laid down by the legislature and in doing so it should keep in mind the intention of the legislature as well as the benefits and detriments of the final decision upon the society. Last but not the least, the actions and activism of the judiciary should replicate the needs of the society and any action taken on behalf of the public should be for the benefit of the public as a whole as opposed to the recent decision of the Supreme Court regarding the holding of two posts simultaneously by the President, which is on the face of it tainted with only one person's personal interests.

yousaf · Post by **yousaf** » Sun Dec 23, 2012 1:40 pm

JUSTICE DELAYED - JUSTICE DENIEDThe liberty of the subject is a very precious thing. It denotes the difference between the freedom and the slavery but it is regretted that after the registration of case the culprits are arrested then consigned in the judicial lock up for years but due to lethargic unConstitutional illegal attitude of the police the challan or interim report is not submitted in the Court and the judicial officer without examine the record, extending the remand illegal without any material before them. It is not only illegal but also not warranted under the law. The Superior Court has been issued circular to the subordinate to strictly follow with the mandatory provision Constitution Cr.P.C. But the police authorities and the agencies concern did not pay any heed to this alarming situation.After registration of the case u/S. 154 the police has statutory right to investigate the case.Investigation includes all the proceedings under the code for the collection of evidence conducted by a police officer or by any person other than Magistrate who is authorized in this behalf. It consists of steps taken by a police officer to ascertain whether any offence has been committed at all and if so by whom what is the evidence which the investigation by the police reveal that an offence has been committed whether concern accused and there is sufficient proof. The police then arrest the accused u/S. 62 of the Cr.P.C. Purpose of the investigation is to collect the evidence, recording the statement of the witnesses and the recovery of weapon of offence and all other matters relating to the investigation of the case within the power and authority of the police. Which is not to be interfered with save of the exceptional circumstances. Police should be given a free hand to dig out the truth with the sole wisdom such powers can not be delegated to any private person or body. Needless to say, it is the duty of the Investigation Officer to collect the evidence to bring out the truth to save innocent person from the agony of endless investigation and trial. Police officer on the statutory obligation to receive the complain preferred to him and take down the oral report if he disclose a cognizable offence and to investigate the same. Reliance is placed (PLD 2007 539), (2008 MLD 1192) (2005 PLD (Kar)621), (2008 PLJ 141), (1975 PLJ (Cr.C) 368).There is no legal bar exists on re-investigation of case even after submission of final report u/S. 173 Cr.P.C. and police can carry out fresh investigation and submit its report to the Court system of re-investigation cases, a recent innovation always taken up at instance of influential people and favourable reports obtained in no way assists Courts in coming to correct conclusion system disapproved. Although the police can re-investigate the case but it is regretted this power is misuse by the police under the influence of influential person the investigation is frequently transferred by the police high ups. Resultantly the process of law is hammered the culprits are not arrested and the process of law is defeated. The superior Courts have depreciated the frequent transfer of the investigation. The main object as stated above investigation being to bring whom the offence to the offender the essential follow:- the duties of Investigation Officer in this connection is apart from the arresting offender to collect all material necessary for establishing the acquisition against the offender. That sometimes from the contents of FIR it does not disclose any cognizable offence but purely a matter of civil nature but police for interior motive register the case. For interior motives, arrest and humiliate the citizen.It was held in Zahid Jamil v/s. SHO reported (2008 YLR 2695)"Police was not the competent forum for the determination of such like dispute if it was admitted that the accused did not pay the price of furnace oil purchased by him on credit even then no offence against him was made out. Only cause open for the complainant was to file a money suit against the accused before the civil Courts. Alarming tendency have been noticed in the recent past to secure speedy result of bona fide civil dispute exclusively triable by the Civil Court by having recourse to criminal law. Such tendency must be curve with iron hand, otherwise the police would assume the role of Civil Court for unwholly consideration. High Court was normally reluctant to quash the FIR under Constitutional jurisdiction but the police could rot be and should not be allowed to assume the role of civil Court. How could High Court allow the police to take the cognizance of money dispute requiring the rendition of account. Since the police did not remain within its allotted sphere, the case was fit for exercise of Constitutional jurisdiction and inherent powers. FIR was quashed in circumstances."In this case the High Court not only quashed the proceeding but also imposed compensatory costs of Rs.50,000/- upon the police officer.Similar view are taken in case of Muhammad Javaid v/s. State reported in (2008 Cr.LJ 1460):"Dispute between the parties of civil nature for the sale and purchase of shop and sending the accused to jail would not strengthen the prosecution case any more as nothing was to be recovered from him."It was further held that"Non compliance of agreement to sell does not constitute any offence."It is the right of the accused to demand speedy trial from the Court. He has also right to say that if there is no evidence coming forth he may be discharged. The Supreme Court take a serious view delayed submission of challan in case reported in (2009 PLJ (SC) 148) Muhammad Aslam v/s. DPO Rawalpindi. It is held that:"The Courts have to safeguard the fundamental rights of every citizen and to protect the life and liberty from illegal, unauthorized and mala fide acts of omission or commission by an authority or person. In case where the liberty of a citizen was involved, the action initiated by the police when found to be mala fide the Court should not hesitate to step in and grant relief to the citizens.We also find force in submission of learned petitioner's counsel that formalities of Sections 173 and 344 Cr.P.C. had not been complied with the challan against the petitioner has not been submitted within the stipulated period, resulting in grave miscarriage of justice."It is held in reported (PLD 2002 SC 590) that:"It is not only this case in which it has been noticed that the Investigating Agency as well as District Authorities have failed to submit challan of the case registered against accused within the stipulated period but in majority of the case the police report challan u/S. 173 Cr.P.C. is not filed despite expiry of stipulated period due to which accused persons involved in criminal case remain languishing in custody without trial and ultimately for such reasons accused claim bail despite their detention in the offences which are heinous in nature because denial of bail to an accused in non-bailable offence under the circumstances would be against the principle of administration of justice."Admittedly for such delay no one else except the police and the office of the District Attorney can be held responsible for not submitting the challan surprisingly, in the instant case, the representative of the both agencies i.e. the then Superintendent of Police, Mandi Bahauddin and the District Attorney instead of accepting their fault found their rescue for not complying with the mandatory provision of law u/S. 173 Cr.P.C. started blaming each other but ultimately failed to furnish satisfactory explanation for not complying the process of submission of challan within the stipulated period of 14 days. Factually both the agencies are equally responsible for not complying with the provisions of law because as far as Superintendent of Police is concerned, he is not only a figure head of the District Police but it is his one of the duty to adopt effective devices to ensure that criminal cases registered by the police within his jurisdiction are processed strictly in accordance with law and it is not possible to submit final challan then he should ensure submission of at least interim challan in terms of provision to Section 173(1) Cr.P.C. and if the SHO's or investigation officer are found negligent in not complying with the mandatory provision of law, he should initiate action against them promptly and if he himself is contributory in this behalf for any reason then action could also be initiated against him departmentally as well as by the Courts for causing delay in the trial of case and detaining accused person in custody without trial contrary to the provision of Article 9 of the Constitution of Islamic Republic of Pakistan because this article provides that no person shall be deprived off of his life for liberty save in accordance with law. Therefore, if an accused is arrested in a cognizable offence by the police or law enforcing agencies, it is right to be dealt with save in accordance to law i.e. a justification has to be shown for his detention in custody because of an arrest of accused initially he can be detained without permission of Court for a period of 24 hours u/S. 61 Cr.P.C. and if during this period investigation of the case is not completed and the police has reasons to believe that the accusation on information is well founded then he shall be produced before the Magistrate who after having satisfied himself about progress of the case may authorized detention of such person in police custody for a period not exceeding 15 days as a whole u/S. 167 Cr.P.C. On completion of maximum period of police remand the accused become entitled for trial and every investigation officer is duty bound to complete interrogation of the accused within stipulated period and no unnecessary delay is tolerable in this behalf because after completion of investigation challan is to be submitted before the Court of competent jurisdiction through the Public Prosecutor as per Section 344 Cr.P.C. It is the duty of the police officer to furnish jurisdiction for the detention of accused in custody if challan u/S. 173 Cr.P.C. has not been filed and trial has not commenced otherwise in absence of report of a police officer of challan detention of the accused would be unjustified and against the provision of law."Delay in submission of challan/police report under Section 173 Cr.P.C. has been noticed invariably in the criminal cases, despite the fact that Section 173 of the Code of Criminal Procedure has been amended by Act XV of 1992 whereby a facility has been extended to the Investigating Agency for submitting interim report the period of 3 days from the completion of period of 14 days of the police remand but instead of deriving benefit from this provision of law, the police authorities including S.H.Os and high-up to the rank of Senior Superintendent of Police never bothered to comply with this mandatory provision of law.Undoubtedly Section 173 Cr.P.C. was amended vide Act XXV of 1992 with a view to improve performance of the police department and simultaneously to stop the police from adopting protracted investigation process for one of the other pretext but the police authorities had in fact rendered the provisions of Section 173 Cr.P.C. ineffective by not following its spirit. In this behalf it is to be noted that unconvincing delaying tactics are adopted by the concerned investigating officers as it has exactly happened in the instant case because the then Superintendent of Police Mandi Bahauddin who is supposed to be Incharge of criminal cases as per Rule 5.1, Chapter 5 of the Punjab Law Department Manual 1938 failed to furnish reasons for not submitting the challan before the Court through public prosecutor as per the provisions of Section 173 Cr.P.C. Similarly Public Prosecutor who is also the Incharge of District Prosecution Agency in terms of Rule 5-A, 2 Chapter 5-A of the Punjab Law Department Manual, 1934 could not satisfy the Court for not submitting the challan/police report final or interim within the stipulated time."It may be noted that in the case of Mazhar Hussain v/s. Ishtiaq Hussain and another (PLD 1990 Lahore 249) it has been held that primarily it will be the function of the District Prosecution agency to finally scrutinize the charge sheet of report under Section 173 Cr.P.C. of a case and on receipt of report from the police submit the same before the Court concerned. On having seen the conduct of the Investigating Agency and District Prosecution agency we are of the opinion that in absence of good working relations between both the agencies it is not possible to strictly adhere to the provisions of Section 173 Cr.P.C. but on account of non-cooperation between both the agencies no one has suffered except the accused/petitioner who remained in detention without trial for a considerable period as it has been noted hereinabove. In this regard, the Court which had been granting judicial remand of the petitioner in terms of Section 344 Cr.P.C. would also equally responsible for the delay in commencement of trial case because if it had insisted hard upon police to comply with the provisions of Section 173 Cr.P.C. or to face consequences for keeping the accused in custody there was no reason that concerned SHO/Investigating Officer had not put up challan against the accused. It is a general practice that we do point out weaknesses in the system but don't bother to discharge the duty cast upon the functionaries seized with the matter. We are sure that if the provisions of Section 173 Cr.P.C. are complied with in letter and spirit the delay in submission of challan and completion of trial in criminal cases can conveniently be controlled.We may observe here that on completion of period of police remand under Section 167 Cr.P.C, if final or interim report has not been submitted the Magistrate before whom accused has been produced for remand can insist upon the prosecution by passing order to comply with the provisions of Section 173(1) Cr.P.C. or record reasons for remanding the accused judicial custody for want of challan in terms of Section 344 Cr.P.C. and simultaneously direct initiation of departmental proceedings against police officer responsible for submission of challan for not complying with mandatory provision of law and proving thereby himself/themselves to be inefficient police officers, the positive result shall start coming forward. Similarly in the instant case the Magistrate as well as Additional Sessions Judge, who had been granting police or judicial remand without insisting upon the SHO/Investigation Officer as well as Superintendent of Police for not submitting the challan is also responsible for unjustified detention of the accused.In case Rehman v/s. State report in PLJ 2009 SC at page 199 the August Supreme Court takes a serious note for non-submission of challan in due time.In addition to that, petitioner is in jail for about 11 months and so far charge sheet/challan/final report under Section 173 Cr.P.C. has not been submitted in the Court. Non submission of challan for such a long period is a matter of grave concern and can not be taken lightly. Time and again Superior Courts have been deprecating the practices of delay in submission of challan/report under Section 173 Cr.P.C. So Section 173 Cr.P.C. was suitably amended by Act XXV of 1992 which is being reproduced hereunder for ready reference:--"173. Report of police officer.--(1) Every investigation under this Chapter shall be completed, without unnecessary delay, and, as soon as it is completed, the officer Incharge of the police station shall, {through the public prosecutor}(a) Forward to a Magistrate empowered to take cognizance of the offence on a police report, in the form prescribed by the Provincial Government, setting forth the names of the parties, the nature of the information and the names of the persons who appear to be acquainted with the circumstances of the case and stating whether the accused (if arrested) has been forwarded in custody or has been released on his bond, and, if so, whether with or without sureties, and(b) Communicate, in such manner as may be prescribed by the Provincial Government, the action taken by him to the person, if any, by whom the information relating to the commission of the offence was first given: (Provided that, where investigation is not completed within a period of fourteen days from the date of recording of the First Information Report under Section 154, the officer incharge of the police station shall, within three days of the expiration of such period, forward to the Magistrate through the Public Prosecutor, an interim report in the form prescribed by the Provincial Government stating therein the result of the investigation made until then and the Court shall commence the trial on the basis of such interim report, unless, for reasons to be recorded, the Court decided that the trial should not be commence). Where a superior officer of police has been appointed under Section 158, the report shall, in any cases in which the Provincial Government by general or special order so directs, be submitted through that officer, and he may pending the orders of the Magistrate, direct the officer in charge of the police station to make further investigation. Whenever it appears from a report forwarded under this Section that the accused has been released on his bond, the Magistrate shall make such order for the discharge of such bond or otherwise as he thinks fit. A copy of any report forwarded under this section shall, on application, be furnished to the accused before the commencement of the inquiry or trial: Provided that the same shall be paid for unless the Magistrate for some special reasons thinks fit to furnish it free of cost. "(5) Where the officer incharge of a police station forwards a report under sub-section (1), he shall alongwith the report produce the witnesses in the case, except the public servants, and the Magistrate shall bind such witnesses for appearance before him or some other Court on the date fixed for trial."The provisions of Sections 61, 167, 173 and 342 Cr.P.C. are to be read together. After arrest an accused can be detained, without permission of Court for a period of 24 hours at the maximum under Section 61 Cr.P.C. and if during this period, investigation of the case is not completed, the Magistrate considering the progress of the case only on well founded reasons may authorize detention of accused in police custody not exceeding 14 days, as a whole, under Section 167 Cr.P.C. On completion of maximum period of police remand, the accused becomes entitled for trial, and challan/final report under Section 173 Cr.P.C. is to be submitted before the competent Court of jurisdiction through public prosecutor. During judicial remand, the accused is to be dealt with according to provisions of Section 344 progress Cr.P.C. which provides that the trial should normally commence, if possible, on the basis of interim report under Section 173 Cr.P.C. which must be submitted as per mandatory requirement of proviso to sub-section (1) of Section 173 Cr.P.C. If the commencement of trial is to be postponed, then the Court must record reasons in writing. Section 344 Cr.P.C. cast a heavy duty on the Court to commence the trial as early as possible and not to adjourn the case on flimsy grounds. It is also duty of the Court to ensure submission of complete challan/final report under Section 173 Cr.P.C. without any unnecessary delay. It was observed by this Court in the case of Hakim Mumtaz Ahmed and another versus The State (PLD 2002 SC 590) which is as follows:--"However, our emphasis is that notwithstanding the fact that before or after completion of investigation period prescribed under Section 167 Cr.P.C., if it is not possible to submit final report, the Investigating Agency should strictly adhere to the provisions of Section 173(1) Cr.P.C. and must submit interim challan through Public Prosecutor for trial and the accused arrested in the case should not be kept in custody for indefinite period without any legal justification."Article 9 of the Constitution of Islamic Republic of Pakistan 1973 guarantees that no person would be deprived of life or liberty save in accordance with law; while Article 10 of the Constitution provides safeguard as to arrest and detention. The Courts should be mindful of the above noted Articles before remanding the accused to police custody or postponing the commencement of trial. The Superior Courts had been taking serious note of the lapses on behalf of Police, Public Prosecutors, Magistrates and the Sessions Judges in charge on that regard, but it appears that unfortunately after passage of time, the above noted functionaries go into slumber and need to be shaken up. It is obvious from the fact that action was taken by this Court in the year 2002, against all concerned functionaries while deciding the case of Hakim Mumtaz Ahmad supra yet the malaise of delay in submission of challan/final report under Section 173 Cr.P.C. persists."CONCLUSIONThe upshot of the above discussion is that it is the duty of the police as soon as the investigation is completed shall forward the report u/S. 173 to the Magistrate to take cognizance of the offence.

yousaf · Post by **yousaf** » Sun Dec 23, 2012 1:42 pm

CAUSE OF ACTION’IntroductionOne of the mandatory requirements for a suit to succeed is that it must directly or by necessary intendment indicate cause of action which provides to a claimant or a plaintiff the right to sue. The word cause of action has not been defined in the entire Code of Civil Procedure but the phrase find place in Order II Rule 2 and Order VII Rule 11. It has been held that "The phrase 'cause of action' has not been defined in any enactment, but meaning of it has been judicially considered in various decisions. In Read vs. Brown (1867) 11 M.I.A. 551 at P.605, Lord Esher, M.R; accepted the definition given in Cook vs. Gill Law Rep. 8CP.107, that it meant 'every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved'. Fry, L.J. agreed and said, 'Everything which if not proved, gives the defendant an immediate right to judgment, must be part of cause of action'. Lopes, L.J. said, `I agree with the definition given by the Master of Rolls of a cause of action, and that it includes every fact which it would be necessary to prove, if traversed, in order to enable a plaintiff to maintain his action'. This decision has been followed in India. The term has been considered also by the Board. In Mussammat Chand Kour vs. Partab Singh 1887-1888, 15 L R I A P. 156, Lord Watson delivering the judgment of the Board observed `Now the cause of action has no relation whatever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set out in the plaint as the cause of action, or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour." [1] The Courts of Pakistan in various judgments have held that 'The term "cause of action" refers to every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right. It means the whole of material facts which are necessary for the plaintiff to allege and prove, in order to succeed. Precisely the term "cause of action" refers to the ground on the basis of which the plaintiff asks for a favorable judgment. [2] Non disclosure of cause of action is a ground for rejection of plaint under Order VII Rule 11 C.P.C. Due to this reason the Courts seized with civil claims are often confronted with the question whether there exist a cause of action in the averments contained in the plaint. It is in search for the cause of action that the law regarding its existence or non existence has attracted serious consideration of the Courts. The instant article aims to provide the response of Pakistan Courts to the question of existence or non existence of cause of action in a plaint and particularly the Courts approach towards finding the cause of action. The article will enumerate how the Courts have at times stuck to a particular view and at others have shown reasonable flexibility aimed to discover cause of action.The plaint and the Plaint AloneFor finding whether the plaint has or has not disclosed a cause of action, the Courts earlier strictly followed the rule that only the plaints needs to be looked into. This rule was actually termed as an "Axiomatic Principle of Law' by the Karachi High Court where it was held that "it is an axiomatic principle of law that while considering the question of cause of action, the Court should apply its mind to the facts given in the plaint, and not to any other matter, and it was to presume that every allegation made in the plaint was true" [3]. This principle was religiously applied for instance by a Division Bench of the Lahore High Court where his Lordship Mr. Justice Gul Zarin Kiani while speaking for the Court held that "to enable a Court to reject a plaint on the ground that it does not disclose a cause of action under Order VII Rule 11 C.P.C. it should travel within the four corners of the plaint and nothing else. Neither the defence set up nor the documents annexed thereto could legitimately be looked into. For failing to disclose cause of action, plaint can be rejected only if the allegations given in the plaint even if taken to be true modo et forma in the manner and form, the plaintiff is not entitled to any relief whatsoever. [4] It is well settled that a Court is empowered to grant such relief as the justice of case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined. [5] In another case decided by his Lordship Rana Baghwan Das it was held that "a Court cannot lawfully take into consideration the defence pleas raised on behalf of the defendants". [6] "Power of rejection of plaint is an exceptional power to be exercised by Courts with extreme caution because such powers are an exception to general rule that all cases are to be decided on merits, after recording of evidence and not on technical grounds. It is precisely for this reason that the law permits consideration of only averments made in plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provisions of law. So much so, that the Court cannot even consider pleas raised by defendant in the suit for his defence". [7] The rule regarding confining to the plaint itself while considering an application for rejection of plaint has been followed and is being still followed despite view to the contrary which is also being applied by placing certain reservations. The traditional view has lately been followed by the Supreme Court of Pakistan where it has been held that "except contents of the plaint reference to no other document has to be made and further reply to the application Under Order VII & Rule 11, C.P.C, cannot be considered as part of the plaint". [8] Based on this rule it has been held "that while considering the application of provisions of Rule 11 of Order VII C.P.C. the Court has to simply examine the statement made in the plaint". [9] To emphasize this point it has further been held that "Order VII Rule 11 C.P.C can be attracted only when a plaint by itself does not disclose any cause of action. It cannot be rejected on the basis of written statement because the initial burden remains on the plaintiff/petitioner to prove his case on the basis of assertions made in the pleadings. If the principle in hand adopted by the Courts below is endorsed, it would be easiest thing to dismiss any civil suit simply and merely on the basis of written statement". [10] "A plain reading of clause (a) of Rule 11 of Order VII spells out the intention of the Legislature as the word 'it' is highly significant for the purpose of deciding the fate of a plaint with reference to its rejection. By using the word 'it' the Legislature has particularized the plaint only and this particularization excludes every thing. In other words the word 'it' confines the scope of reference only to the plaint and nothing else. In order to invoke the applicability of this clause the Court shall look into the contents of the plaint only and shall examine the plaint on its face value". [11]Undisputed and Admitted Documents Filed With the Plaint or Written StatementLater on the Courts extended the rule to include besides averments in the plaint, the undisputed/admitted documents, annexed/filed with the plaint or written statement for determining whether the plaint discloses any cause of action. For instance it was held that "The documents filed along with the plaint and referred therein can be looked into for the purpose of rejection of plaint. Such documents, indeed, are a part of the plaint". [12] A plain reading of the Order VII, Rule 11 C.P.C. would show that the rejection of plaint under this provision of law is contemplated at a stage when the Court has not recorded any evidence in the suit. It is for this reason precisely, that the law permits consideration of only averments made in the plaint for the purpose of deciding whether the plaint should be rejected or not for failure to disclose cause of action or the suit being barred under some provision of law. The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. cannot take into consideration pleas raised by the defendant in the suit in his defense, as at that stage the pleas raised by the defendants are only contentious in the proceedings unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII, Rule 11 C.P.C. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence". [13] "It is settled law that in order to apply the provisions of Order VII Rule 11 C.P.C. the Court is obliged to keep in view the contents of the plaint only and other undisputed or admitted material. The plea of the defendant when it is disputed and denied by the plaintiff cannot be made a ground for rejection of the plaint". [14] "The traditional view has been that for the purpose of rejecting a plaint under Order VII, Rule 11 C.P.C. only the contents of the plaint have to be looked into. However, it has lately been modified to the extent that even an undisputed document placed on record can also be looked into for the aforesaid purpose". [15] the Court may also take into account certain admitted or uncontroverted material placed on the record by the defendant, the genuineness and the veracity of which is beyond doubt and by looking whereupon, the Court comes to the conclusion that to continue with the suit shall be a futile exercise and/or the case has been filed by the plaintiff with manifest dishonesty of purpose, oblique object, to retain or claim the benefit of such gain which the plaintiff is not entitled to, and to simply cause prejudice and harassment to the defendant of the case. [16]An important aspect regarding consideration of documents for the purposes of rejection of plaint has been that the Courts have sometimes specifically used the words 'undisputed' or 'admitted' before the word 'documents' but sometimes these prefixes before the word 'document have not been used. The proceeding cases will indicate this trend. It has been held that "Averments made in the plaint, other material available on record which on its own strength is legally sufficient to completely refute the claim of the plaintiff, can also be looked into for the purpose of rejection of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint. [17] "Order VII Rule 11 C.P.C. becomes operative only when the plaint is liable to be rejected on the basis of its contents taken to be true and correct but the Court can also rely upon the documents annexed to the plaint and brought on record with written statement to consider the question of application of Order VII Rule 11 C.P.C". [18] "The rule that Court should take in view averments made in the plaint alone and not the defence set up by defendant is not universal but subject to certain exceptions; one of which is that if it comes to the notice of Court even from the documents filed by defendant that dispute in question, has already been adjudicated upon by a superior Court, and filing of suit is nothing but abuse of process of law, plaint must be rejected". [19]Contents of the Written Statement and AffidavitsAnother development took place when it was decided in one of the case by Karachi High Court that "the contents of the written statement/affidavits may be looked into when considering application under Order VII Rule 11 C.P.C. [20] This has been followed by Lahore High Court where it has been held that 'Whilst scrutinizing the plaint in a suit the Court may also consider the admitted documents on record and even the pleadings of the other side". [21] However this view has not been subscribed to by the Peshawar High Court where in a case, his Lordship Mr. Justice Sardar Muhammad Raza categorically held that "Contents of written statement cannot be relied upon while forming opinion regarding rejection of plaint". [22] Even the Supreme Court of Pakistan has not subscribed to this view in one of the important cases often cited in connection with Order VII Rule 11 C.P.C. The Supreme Court of Pakistan held that "Though the observation was made by the Court (Supreme Court) in cases Muhammad Akhtar vs. Abdul Hadi 1981 SCMR 878 and Nazeer Ahmad Vs Ghulam Mehdi 1988 SCMR 824 that Order VII, Rule 11, C.P.C. is not exhaustive of all situations but it did not lay down the law that the Court while rejecting the plaint under Order VII, Rule 11, C.P.C. could take into consideration the plea of defendant though disputed and denied by the plaintiff. [23] This view has further been adopted by the Supreme Court by holding that "the plaint cannot be rejected under Order VII Rule 11 C.P.C on the basis of pleas raised by the defendant in the written statement in his defence as at this stage the pleas are only contentions which are not based on the evidence. [24]Documents Annexed with the Application Under Order VII Rule 11 C.P.C.The Lahore High Court has gone further in respect of reliance upon documents in case of application under Order VII Rule 11 C.P.C. for rejection of plaint and has included documents annexed with the application under Order VII Rule 11 C.P.C. It has been held that "where facts of previous suit and its decision by competent Court of jurisdiction have been concealed by the plaintiff in the plaint of his suit, then the material produced in evidence and documents by way of filing written statement or along with the application under Order VII Rule 11 C.P.C. should also be kept in mind for rejecting the plaint". [25]Whatever Stated in a Plaint must be Presumed to be CorrectAn important aspect in respect of application under Order VII, Rule 11 C.P.C has been the consistent view of the Courts that while rejecting plaint, the Court is to presume that whatever has been stated in the plaint is correct. This can be evident from judgments by various Courts of Pakistan including Supreme Court of Pakistan. For instance the Karachi High Court in one of the cases observed "There is no cavil to the proposition of law that for the purpose of disposal of an application under Order VII, Rule 11, C.P.C. the averments contained in the plaint are to be taken into consideration and the same are presumed to be correct". [26]Distinction between Non-Disclosure and Non-Availability of Cause of ActionIn the case Muhammad Farooq vs. Province of Punjab and others (PLD 1993 Lahore 56) their Lordships observed that there is a distinction in non-disclosure of cause of action in the plaint and non-availability of cause of action, under Order VII Rule 11 C.P.C. only for non-disclosure of cause of action in the plaint the Court can summarily reject the suit. Since cause of action was not only available to plaintiff but it was rightly disclosed in the plaint. The Trial Court thus was not justified to summarily reject plaint under Order VII Rule 11 C.P.C. [27] under Order VII, rule 11, plaint could be rejected, if it does not disclose cause of action, but it cannot be rejected on the ground of accrual of cause of action, as the later requires evidence to prove and after recording of evidence, if the plaintiff fails to prove cause of action accrued to him then, the suit has to be dismissed. [28] However in a case pertaining to defamation it has been held that For the wrongful act of defamation to be committed it is necessary that the communication of the defamatory material be made to "at least one person other than the person defamed" (Section 2(e) of the Ordinance). The particulars of such recipient of communication are necessary to allege that the plaintiff was defamed or ridiculed thereby. The plaint lacks any particulars of "communication". Since the wrong of defamation is incomplete without communication, therefore, the non-mention of its particulars in a plaint leaves the cause of action to remain unstated, as in the present case. Consequently, the plaint in the suit has been rejected rightfully for nondisclosure of cause of action. [29]ConclusionFrom finding the cause of action from the plaint and plaint alone or extending the rule to the undisputed documents attached with the plaint or a written statement and further finding the cause of action from the contents of the written statement (even though not fully subscribed to by some Courts) the law of finding cause of action has developed in Pakistan showing a progressive approach and the boldness of the Courts to meet the changing realities of time.

yousaf · Post by **yousaf** » Sun Dec 23, 2012 1:44 pm

WOMENS’ RIGHTS IN ISLAMRights are those conditions of social life without which man cannot be at his best to develop his personality. These are such opportunities which are essential for everyone. It is a historical fact that in ancient times women were treated like animals. In many countries they were regarded as slaves. They had no status, no rights and no privileges. Among few tribes of Arabia and in some other countries female children were buried alive after their birth. For example the women were considered as ‘organ of Devil’ ‘the instrument which the Devil uses to gain possession of the souls of human beings’ even they were named as ‘gate of Devil’ ‘road of inequity’ and the ‘sting of scorpion’ etc. by some Christians scholars1. But the Islam has laid great emphasis upon the rights of women. One Surah of the Holy Quran, “The Nisa” deals with women’s rights. The meaning of Nisa is woman in Arabic. Allah says in this Surah; وَاتَّقُواْ اللّهَ الَّذِي تَسَاءلُونَ بِهِ وَالأَرْحَامَ “O mankind …. Be careful of your duty towards Allah in whom you claim (your rights) of one another and toward the women verily2…” It is worthwhile to note that Islam has granted the women all types of social, cultural, economic and other rights which were earlier reserved for men. Therefore, they enjoy full liberties for selecting their partners and their free consent is required for validity of marriage. The women have the status of a mother, daughter, sister and wife. In each role she enjoys various rights. For example as a mother, the saying of the Holy Prophet (Peace be upon Him) “Paradise lies under the feet of your mothers3” is very famous. The Holy Prophet (PBUH) stressed; ‘Al Mighty Allah has prohibited from disobedience to mother’s and in refusing their help4’The Prophet (PBUH) advised one of his companions when he asked to Him that whether he had any way to escape after committing a great sin, “accord good treatment for your mother and if you got no mother then for your mother’s sister”.5 The Holy Prophet (PBUH) refused to allow Ja’hemah to join a battle6 when his mother was alive and advised that he should be near her because Paradise is at her feet. Similarly the Holy Prophet (PBUH) told to one of His companions when he enquired who is to be most obeyed? “Your mother” the same reply was given two times more when he further enquired.7 It shows that among parents mother’s place in respect of obedience has been elevated much above that of father. The Quran places duty to parents only next to one’s supreme duty towards God. Islam has provided mother share in the property left by her deceased children, the Quran says…….وَلأَبَوَيْهِ لِكُلِّ وَاحِدٍ مِّنْهُمَا السُّدُسُ مِمَّا تَرَكَ إِن كَانَ لَهُ وَلَدٌ فَإِن لَّمْ يَكُن لَّهُ وَلَدٌ وَوَرِثَهُ أَبَوَاهُ فَلأُمِّهِ الثُّلُثُ فَإِن كَانَ لَهُ إِخْوَةٌ فَلأُمِّهِ السُّدُسُ“For parents, a sixth share of the inheritance to each, if the deceased left children; if no children, and the parents are the (only) heirs, the mother has a third; if the deceased left brothers (or sisters), the mother has a sixth…….8” As a wife The Holy Quran enjoins upon the believers to accord good and kind treatment to their wives. The relevant injunction is: وَعَاشِرُوهُنَّ بِالْمَعْرُوفِ فَإِن كَرِهْتُمُوهُنَّ فَعَسَى أَن تَكْرَهُواْ شَيْئًا وَيَجْعَلَ اللّهُ فِيهِ خَيْرًا كَثِيرًا “Treat them kindly, if you hate them it may be that you dislike a thing while Allah has placed abundant good in it9” The Holy Prophet (PBUH) is reported to have said, “Fear Allah, in respect of women as you have got them in custody in the name of Allah……..” Further the Holy Prophet (PBUH) has advised His followers to avoid hating women on ground of one trait of their character, because another good trait may please you10”. Islam has emphasized good and kind treatment for the women, therefore their rights as wife are guaranteed by Islam. For example; free consent of women is required for marriage and she can settle any terms and conditions in contract of marriage which remain binding for husband. She is entitled for dower (Mahr) which is compulsory payable to her. Similarly right of Khulla in unavoidable circumstances, through court, has been granted to women against arbitrary use of power of divorcing by the husband. A wife remains and entitled to inheritance in property of deceased husband to the eighth of that. The Quran says; وَلَهُنَّ الرُّبُعُ مِمَّا تَرَكْتُمْ إِن لَّمْ يَكُن لَّكُمْ وَلَدٌ فَإِن كَانَ لَكُمْ وَلَدٌ فَلَهُنَّ الثُّمُنُ مِمَّا تَرَكْتُم“And unto them belongeth the fourth of that which ye leave if you have no child, but if ye have a child then the eighth of that which ye leave11” The Holy Prophet (PBUH) has greatly stressed on rights of women regarding love and good behaviour, food, clothing and residence etc. He said (PBUH); “They have got (rights) over you in respect of their food and clothing according to means12.” He further advised one of his companions to give your wife food when you take your food and the clothes when you have clothes yourself13. Similarly in famous Farewell Address, the Prophet Muhammad (peace be upon him) declared: “Well then, people! Verily there are rights in favour of your women which are incumbent upon you, and there are rights in favour of you which are incumbent upon them……..14”As daughter and sister, Islam has not only condemned the inhuman practice of killing female children and burying them alive but also abolished it. The Quran says:-وَلاَ تَقْتُلُواْ أَوْلادَكُمْ خَشْيَةَ إِمْلاقٍ نَّحْنُ نَرْزُقُهُمْ وَإِيَّاكُم إنَّ قَتْلَهُمْ كَانَ خِطْءًا كَبِيرًا“Kill not your children for fear of want: We shall provide sustenance for them as well as for you: Verily the killing of them is a great sin15”.The following sayings of Prophet (PBUH) are being quoted on the subject of good treatment of daughter/sisters.• ‘Who maintain two girls till they attain maturity, he and I will come on judgment day like this’ and He (PBUH) then showed His fingers joining together16(Narrated by Hazrat Anas) • If a person had got a female child and he neither buried her alive nor treated her unjustly ….. ‘Allah will admit him in Paradise17(Nrrated by Hazrat Ibn Abbas)The daughters are entitled to share the estate left by their deceased father or mother alongwith other legal heirs. The Qur’an commands:يُوصِيكُمُ اللّهُ فِي أَوْلاَدِكُمْ لِلذَّكَرِ مِثْلُ حَظِّ الأُنثَيَيْنِ فَإِن كُنَّ نِسَاء فَوْقَ اثْنَتَيْنِ فَلَهُنَّ ثُلُثَا مَا تَرَكَ وَإِن كَانَتْ وَاحِدَةً فَلَهَا النِّصْفُ “Allah (thus) directs you as regards your children’s (inheritance): to the male, a portion equal to that of two females: if only daughters, two or more, their share is two thirds of the inheritance; if only one, her share is a half18”ConclusionFrom the above discussion it is clear that for the first time in the history of mankind, Islam has raised the status of the women from mere an article like any other articles of property to the status of human being and the women are placed on equal footings as regards the rights of human beings. And as a matter of fact Islam is the only religion which has taken up the cause of women in the earnest by defining their rights in clear and precise terms and there by raising the legal position of women in the society. Reference:1. Extracts from scriptures of other religious and review of religious Vol-XIII by Abdullah Alladin2. Surah Nisa, Ayat 13. Mukhtasarul Maqasid, page 348 4. See generally Bukhari and Muslim5. See generally Tirmizi 6. See generally Ahmed, Nisai and Baihaqi7. See Tirmizi and Abu Daud8. Surah Nisa, Ayat 11 An English Interpretation of The Holy Qur’an by A.Yusuf Ali Page 1129. Surah Nisa, Ayat 19 Ibid Page 11510. See generally Muslim Sharif11. Surah Nisa, Ayat 12 An English Interpretation of The Holy Qur’An by A.Yusuf Ali Page 11312. See generally Bukhari and Muslim 13. See generally Ahmad, Abu Daud and Ibn Majah14. Farewell Address of the Holy Prophet (PBUH) delivered at Arafat on the occasion of last pilgrimage in 10 A.H.,15. Surah Bani Israil, Ayat 31 An English Interpretation of The Holy Qur’An by A.Yusuf Ali Page 42116. See generally Muslim17. See generally Abu DaudSurah Nisa, Ayat 11 An English Interpretation of The Holy Qur’An by A.Yusuf Ali Page 112

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