Closing of evidence

2017 PCrLJ 302 SHARIAT-COURT-AZAD-KASHMIR Judicial Precedent

Ss. 447, 34 & 174Azad Jammu and Kashmir Offences Against Property (Enforcement of Hadd) Act, 1985, S.14Criminal Procedure Code (V of 1898), Ss.68, 70, 71, 72 & 353Criminal trespass, common intention, theft liable to tazirSummoning and examination of prosecution witnessesProcedureClosing of evidenceScope

When case was at the stage of recording evidence of prosecution witnesses, evidence of three most important witnesses, was closed by the Trial Court

Validity

Initially summonses were issued to said three witnesses and thereafter, bailable and non-bailable warrants were issued, but warrants were not executed and witnesses did not appear before the court

Responsibility was shifted upon the prosecution to produce said witnesses at its own

Where, after availing several opportunities, the prosecution could not produce the witnesses before the court, Trial Court vide impugned order closed the evidence of the witnesses

Court had ample powers to implement its orders through coercive measures as well as by way of other legal means, but had not tried to implement its order in its letter and spirit

When, the warrant of arrest was issued, it must be executed in all eventualities; except that attendance of the witness had become impossible due to his death, or by leaving the country, or any other sufficient reason

No such circumstances existed in the present case

Witnesses were government servants; i.e. one was Patwari and other two were Police Officials and it was impossible for the complainant, to produce them before the court without any warrant

Once, the Trial Court, had issued the process for attendance of the witness, it should have been complied with in accordance with law

If a witness, despite service of summons or notice deliberately, without any sufficient reason, did not appear before the court of law, he would commit offence under S.174, P.P.C. and criminal proceedings could be initiated against him

If the Executing Authority, did not implement the order of the court, it would become contempt of court and executing authority could be proceeded under the Contempt of Court Act, as well

Official witness, who would avoid the process of the court deliberately and would not appear before the court and resultantly, the proceedings of the case were procrastinated, it was a misconduct, as well and the competent authority, could be directed by the court to take disciplinary action against the concerned officials

Trial Court, before closing the evidence, had taken none of said steps under the law and shown its helplessness; which was not warranted by law

No bar lay for the prosecution to produce the witnesses at its own without process of the court, but once the court had issued the process to procure the attendance of a witness, then that should be completed by the court

If the prosecution wanted to produce the witness on its own responsibility, the court was not responsible

Trial Court by closing evidence of witnesses, whose evidence was essential for the just decision of the case, had committed grave illegality

Impugned order of the Trial Court was set aside, with direction to ensure the attendance of said witnesses, strictly in accordance with law and decide the case within a period of three months.

2016 MLD 1524 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XVII, R. 3Closing of evidenceSufficient opportunities already granted

Matter could not be left on the choice of parties to choose the time for production of evidence according to their own choice

Case proceedings had to be controlled by Court according to its roster

Petitioner who had been already granted sufficient opportunities was not entitled to any further leniency by Court.

2015 CLC 969 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O. XVII, R. 3Land Acquisition Act (I of 1894), S.18Constitution of Pakistan, Art. 199Constitutional petitionAdministration of justiceNon-production of evidence despite numerous opportunitiesClosing of evidencePetitioner impugned order of the Tribunal whereby petitioners' right to produce evidence was closed

Contention of the petitioner was inter alia that law favoured adjudication on merits rather than penalizing a party on basis of technicalities

Held, that any penal action, if taken, against any party while pressing into service the provisions of O.XVII, R.3, C.P.C. in routine, the same may be considered a mere technicality; but where an adverse order had been passed against a party when it failed to comply with the order of the Court despite being given a number of opportunities, the same could not be considered a mere technicality

Evidence of the petitioner, in the present case, was not closed in a causal manner, rather it was done so after affording all possible opportunities to the petitioner to produce evidence

Impugned order did not therefore, suffer from any illegality

Constitutional petition was dismissed, in circumstances.

2013 YLR 2553 PESHAWAR-HIGH-COURT Judicial Precedent

O.XVII, R.3Failure to produce evidenceClosing of evidenceDismissal of suit

Plaintiffs had been provided ample opportunities and repeated last chance for production of evidence, but they had failed to produce the same

Evidence of plaintiff was struck off and the suit was dismissed

Validity

Court could not compel the plaintiffs to have produced their evidence rather it was their duty to have produced the same in order to substantiate their claim

When the court realized that the plaintiffs were not interested in producing their evidence, then it was left with no option but to strike off their evidence

Order of trial Court was unexception-able

Revision petition was dismissed.

2013 YLR 2553 PESHAWAR-HIGH-COURT Judicial Precedent

O.XVII, R.3Failure to produce evidenceNegligence of plaintiffClosing of evidenceDismissal of suitValidity

Plaintiffs were not only negligent in producing their evidence but they did not care about the last chances provided and warnings given to them

Order passed by the learned Trial Court, closing the evidence of the plaintiff was unexceptionable

Revision petition was dismissed.

2013 CLC 32 PESHAWAR-HIGH-COURT Judicial Precedent

S. 5, Sched., Ss.11 & 12-ASuit for dissolution of marriageClosing of evidenceSummoning the proposed witnesses through court

Hearing of the case was adjourned on three or four occasions, for recording evidence of the defendant, but each and every time the hearing of the case was adjourned at the instance of the defendant on one pretext or the other

Way and manner adopted by the defendant, had clearly exposed his conduct that he wanted to delay the proceedings unnecessarily by taking adjournments on one excuse or the other

Trial Court, in circumstances was left with no alternative, but to close the right of his producing evidence

Under provisions of S.12-A of West Pakistan Family Courts Act, 1964, it was mandatory for the court to decide the suit positively within six months from the date of institution of the case

No legal or jurisdictional defect in the impugned order/judgment was found being strictly in compliance with provisions of law

Impugned order/judgment being an interim in nature, ordinarily writ could not be issued

Petition was dismissed.

2013 YLR 1545 KARACHI-HIGH-COURT-SINDH Judicial Precedent

O. XVII, R 3 & S. 12(2)AdjournmentsClosing of evidenceEx parte decreeApplication under S. 12(2), C.P.C. filed by the defendant for setting aside ex parte decreeEvidence of the plaintiff was closed after he sought successive adjournments and failed to lead evidence

Contention of the plaintiff was that application under S. 12(2), C.P.C. should be decided on merits and he should not be knocked out on technical grounds

Validity

Plaintiff was vigilant while the suit remained uncontested by the defendant however after filing of the application under S. 12(2), C.P.C., plaintiff failed to appear and proceed with the case, particularly with the application under S. 12(2), C.P.C. and he had frequently moved urgent applications including applications for the transfer of the case

Record revealed that the plaintiff had not left a single opportunity to seek an adjournment

Conduct of the plaintiff revealed through dairy sheets, proved that there could not be second opinion about the fact that the plaintiff was avoiding proceedings before Trial Court, and Trial Court had granted enough adjournments to him

Dictates of justice demand that matters should be decided on merits rather than on technical knock outs, however, the plaintiff in the present case, with his frame of mind and conduct, deserved no indulgence and equity

Indulgence was to be granted to those who remained vigilant and not indolent

No illegality existed in the impugned order

Revision was dismissed, in circumstances.

2012 YLR 2383 SUPREME-COURT-AZAD-KASHMIR Judicial Precedent

Preamble, S.5, Sched., Ss.9, 10, 11 & 12Azad Jammu and Kashmir Interim Constitution Act (VIII of 1974), S.42Suits for dissolution of marriage and realization of maintenance allowanceFailure of defendant to attach list of witnesses along with written statementsClosing of evidenceHigh Court, under writ jurisdiction, set aside judgment of the Family CourtValidity

Special procedure had been laid down in Ss.9, 10, 11, 12 of the Mad Jammu and Kashmir Family Courts Act, 1993, to achieve the object of enactment i.e., early disposal of the family matters

Preamble of the Act though was not an integral part of the statute, but it could be helpful to ascertain the intention of the legislation which showed that the object of enactment was expeditious disposal of disputes relating to family affairs

Scheme of law was to decide the family matters expeditiously; and in case the relevant provisions were not complied with, that would amount to defeat the object of the legislation

High Court had issued the writ while quashing the order of the Judge, Family Court on the basis of inference drawn on the presumptions

Judgment of the High Court had jailed to interpret the provisions of S.9 of Azad Jammu and Kashmir Family Courts Act, 1993 in . its true perspective

Order passed by the High Court was set aside and order of Family Court, was restored, in, circumstances.

2011 YLR 1003 PESHAWAR-HIGH-COURT Judicial Precedent

O.XVII, R.3Specific Relief Act (I of 1877), S. 42Suit for declarationClosing of evidenceTrial Court and Appellate Court concurrently dismissed suit in terms of O.XVII, R.3, C.P.C.Validity

Trial Court granted eight adjournments to record the oral evidence of the plaintiffs, but they had failed to produce their evidence

Lack of interest of the plaintiff caused delay in deciding the suit as it was discernible from the record that it took one year for producing oral evidence, but without any further progress in the proceedings of the suit as neither the plaintiffs nor their counsel appeared before the court

Trial Court, in circumstances, was constrained to pass the order in terms of O.XVII, R.3, C.P.C.

Within a period of four years the plaintiff could not arrange the production of their entire evidence, whatever the material produced by the plaintiffs through their witnesses supported the stance of the defendant

On merits, record of rights pertaining to relevant period also lent support to the stance of the defendants; as they had been shown as owners in possession of the suit property; and also about the construction raised over the same

Grounds on which the plaintiffs had sought the decree in their favour manifestly falsified their contention

Plaintiffs besides having no cause of action indulged in unlawful litigation, the conduct of plaintiffs, made it clear that they were not interested in litigation, but they were bent upon to procure, the illegal benefit of protracted proceedings

Suit.. was time-barred, the plaintiffs were estopped 10 file the suit as they had no cause of action to file the suit

Judgment and decree passed by Appellate Court and that of the Trial Court, in circumstances, being in accordance with law and not suffering from any illegality, irregularity or jurisdictional error, were Maintained.

2010 CLC 997 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

S. 42Civil Procedure Code (V of 1908), O.XVII, R.3Suit for declarationFailure to produce evidenceClosing of evidenceFrom the date of framing of issues, total 38 dates were fixed for leading evidence by the plaintiff

On majority of said dates, case had to be adjourned on the request of the plaintiff for producing his evidence - with cost and also with warning, but despite that the plaintiff had failed to produce his evidence

Suit filed by the plaintiff ultimately stood dismissed

Plaintiff who pleaded that he could not produce evidence as he met a road accident, could not prove that plea as no mention of any accident was on the record

Apart from that it took almost three years and 38 adjournments and numerous on the request of the plaintiff, and particularly last three were with cost and warning, the plaintiff did not care to adduce his evidence

Suit was rightly dismissed concurrently by the two courts below and said order of dismissal could not be interfered with in revisions.

2009 MLD 635 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

O.XVI, R.1 & O.XVII, R.3Summoning of witnessClosing of evidence

Plaintiffs regularly deposited diet money and other expenses for attendance of witnesses summoned by court on application filed under O.XVI, R.1 C.P.C. by defendants

Despite lapse of five years, evidence of summoned witnesses could not be recorded, therefore, Trial Court closed the evidence of plaintiffs

Validity

No fault attributable to plaintiffs in the matter of non-appearance or presence of witnesses was found by High Court

No objection was ever raised by office that diet money or process fee had not been deposited

Plaintiffs did their duty and they were not to be burdened any further and it was for the court 'to ensure presence of witnesses

High Court, in exercise of revisional jurisdiction, set aside the order passed by Trial Court, whereby evidence of plaintiffs was closed

Revision was allowed in circumstances.

2009 PTD 97 INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN Judicial Precedent

Ss. 13(1)(aa) & 12(18)AdditionAdvances from customersAdditions of actual delivery of transacted goods in the subsequent periodValidity

Although addition could be validly made under S.13(1)(aa) of the Income Tax Ordinance, 1979 instead of S.12(18) of the Income Tax Ordinance, 1979, if the assessee had failed to furnish required evidence to the satisfaction of Assessing Officer about the sources of funds, but legal procedure was not properly followed for making the addition

Verification exercise was not conducted on scientific lines

Actual delivery of transacted goods was made in the subsequent period was also overlooked by the Assessing Officer

Assessing Officer did not bother to verify such fact from account books of the company

First Appellate Authority did not properly and judiciously appreciate the factual position because in the same set of circumstances he had cancelled the addition on account of "deferred liabilities" whereas addition under this head was set aside for reconsideration/re-examination

First Appellate Authority should not have remitted the issue back to Assessing Officer

Appellate Tribunal directed that addition should be deleted in the circumstances.

2009 PTD 97 INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN Judicial Precedent

Ss. 13(1)(aa) & 144/148AdditionDeferred liabilities

Addition was cancelled by the First Appellate Authority on the ground that term "liabilities" had not at all been mentioned in S.13(1)(aa) of the Income Tax Ordinance, 1979

Validity

When liabilities were established to be bogus the natural inference would be that the assessee itself was the owner of money

Onus was on the assessee to explain the sources of acquisition of such money and if the sources were not explained properly, the addition could be made under S.13(1)(a) of the Income Tax Ordinance, 1979.

2009 PTD 97 INCOME-TAX-APPELLATE-TRIBUNAL-PAKISTAN Judicial Precedent

Ss. 144, 148 & 13(1)(aa)Power to call for informationAdditionDeferred liabilities

Addition without verification through action under Ss. 144/148 of the Income Tax Ordinance, 1979 in spite of request of assessee

Validity

Assessee had provided complete addresses of all the persons/parties out, of which thirty parties/persons confirmed the claim of the assessee

Assessing Officer should have provided another opportunity to the assessee and should have favourably considered the assessee's request for verification of amount through action under Ss. 144/148 of the Income Tax Ordinance, 1979

Assessing Officer showed unnecessary hurry in making the addition, which could not be justified in the circumstances

Addition was not correctly made by the Assessing Officer and its cancellation by the First Appellate Authority was correct

Departmental appeal was not accepted on this point by the Appellate Tribunal.