Dismissal of application

2020 PCrLJ 119 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 22-A, 22-B & 561-APowers and jurisdiction of Ex-officio Justice of PeaceNature and scopeApplication to Ex-officio Justice of Peace for direction to SHO to lodge FIRDismissal of applicationApplicant, had challenged the order by Ex-officio Justice of Peace

Ex-officio Justice of Peace while declining the application filed by respondent for direction to register FIR, simultaneously, passed some pejorative remarks against the applicant

Validity

Application of respondent was declined with directions to avail alternate remedy of filing private complaint

Said order was contrary to the legal norms and beyond the scope of Ex-officio Justice of Peace, who while discharging a 'quasi-judicial' function was undoubtedly not performing the duties of a Judge sitting under the canopy of justice

Nevertheless, court was fully competent to discharge his function as Ex-officio Justice of Peace, described within the statute and he could not travel beyond the same

No direction having been issued, therefore, no question of neglect or failure arose

Application filed before Ex-officio Justice of Peace was for registration of FIR and the respondent had neither made a complaint against the present applicant for excess committed by him nor he sought any enquiry in that regard

Order passed Ex-officio Justice of Peace being without holding an enquiry and without giving an opportunity of hearing to the applicant, considering the contention of the respondent that they were protesting peacefully as 'gospel truth', was contrary to the scheme of law, as such, not sustainable

Ex-Officio Justice of Peace was not a Judicial Magistrate who could take cognizance upon his own knowledge or information communicated to him

Without any lis before and without due application of his mind, Ex-Officio Justice of Peace could not pass an order against any police officer; in such a situation, it would be appropriate to provide the said police official/Officer an opportunity to clarify his position by holding an inquiry by himself or through some other Authority

Criminal miscellaneous application was allowed by setting aside the impugned order.

2019 PCrLJ 567 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 22-A, 22-B & 561-ALodging of FIR, application forDismissal of application

Buffaloes of the applicant were sitting in a pond for their routine bath, when a car fell down in the pond, due to which his three buffaloes died, while one suffered injuries

Applicant approached SHO concerned for lodging FIR, but SHO did not register FIR and applicant filed application under Ss.22-A, 22-B, Cr.P.C., before Ex-officio Justice of Peace

Said application having also been dismissed, applicant filed application before High Court under S. 561-A, Cr.P.C.

Grievance of the applicant was to receive compensation regarding loss sustained by him

Validity

Most appropriate and efficacious remedy to the applicant was available in a tortuous action through which he would be able to get compensation as he desired

Lodging of FIR would not open the room for compensation to the applicant for which appropriate action was a suit for damages

Impugned order being proper, application of the applicant was dismissed, in circumstances.

2018 MLD 1804 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 302 & 34Qatl-i-amd, common intentionApplication for obtaining samples of blood of accused persons for the purpose of re-analysis through DNA testDismissal of applicationValidity

Deceased lady had been done to death by some unknown accused persons and accused were implicated subsequently through supplementary statement

Investigating Officer obtained post mortem examination report, which showed that deceased lady was sexually assaulted prior to her death

Accused persons, after their arrest were produced before the Forensic Science Agency for DNA test, in order to ascertain whether said persons were indulged in the act of sexual intercourse with the deceased lady prior to death or not

Report of Forensic Science Agency excluded the accused persons from the sperm fractions being contributed to DNA

Counsel for the petitioner, failed to satisfy the court as to under what circumstances report received from the office of Forensic Science Agency was to be taken as dubious

Nothing was available on record to show that report in question was manoeuvred or any of the relevant officials in the laboratory was biased

In absence of any sound material creating reasonable doubt, report in question could not be discarded at the whims and wishes of the petitioner

Petitioner could not be allowed to fill-up the lacuna just to implicate the accused persons nominated by him at subsequent stage

Impugned order suffered from no illegality, perversity of reasoning or any irregularity of procedure to warrant interference by High Court

High Court directed that Trial Court decide the fate of the case on the material/evidence available on record.

2017 PLCN 5 LABOUR-APPELLANT-TRIBUNAL-SINDH Judicial Precedent

Ss. 34 & 48Industrial and Commercial Employment (Standing Orders) Ordinance (VI of 1968), S.O.15(3)(e)MisconductTermination of service on absence without leave for 15 daysApplication of employee for reinstatement in serviceDismissal of applicationValidity

Case of appellant/employee was that he was unwell and had sent massage to employers through co-worker, which was not accepted by the employers

Employee had obtained medical certificate in support of his contention

Punishment of dismissal from service awarded to the employee was not commensurate with his fault

Employers had not claimed that they had suffered loss due to the absence of employee

Medical certificate produced was not sent for verification so it could not be said that employee had produced false or forged certificate

Punishment of dismissal from service awarded to the petitioner was converted into withholding his increment for one year by Labour Appellate Tribunal

Employee was ordered to be reinstated in service without back benefits

Appeal was disposed of accordingly.

2017 PCrLJ 1652 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 9, 36 & 48Possessing and trafficking narcoticsAppreciation of evidenceReport of Chemical ExaminerApplication for fresh analysis of the contrabandDismissal of application

Appellant/accused, was found in possession of three cans, each containing twenty seven litres of Acetic Anhydrine, a contraband designated as psychotropic substance under the Control of Narcotic Substances Act, 1997

Trial was in progress, and evidence of recovery witnesses, had already been recorded; the Report of Chemical Examiner was before the court

Appellant, being dissatisfied with the report of Chemical Examiner, moved application for fresh analysis of the contraband for the purpose of determination of its chemical composition

Contention of appellant was that it would be in the interest of justice that the seized contraband be sent to any laboratory other than Punjab Forensic Science Agency

Validity

Prosecution of offences was a State attribute; State functionaries and institutions, were tasked to carry out the job; there was presumption of genuineness to such pursuits

Said powers could not be delegated to private enterprises chosen by a person confronting indictment

Any flaw or defect in the Forensic Report, could not be pressed into service for fresh analysis

Accused was not required to establish his innocence through such methodologies

Forensic analysis of the contraband, in the case, was undertaken soon after registration of the case; it was intriguing as to how the appellant became suspicious about the psychotropic character of the stuff attributed to him

Appellant having denied the charge, no onus was cast upon him within the contemplation of Art. 119 of the Qanun-e-Shahadat, 1984 to discharge any responsibility which could necessitate the proposed exercise

Appeal was dismissed.

2016 MLD 34 Gilgit-Baltistan Chief Court Judicial Precedent

O.VII, R. 2, Ss. 104, 144, 151, O.XLIII, Rr.1 & 2Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009, Art.71Suit for recovery of amountEx parte decree, setting aside ofRestitution/ remission of decretal amount, application forDismissal of application

Suit for recovery of amount filed by plaintiff/respondent, having been decreed ex parte; plaintiff, filed execution proceedings in the Executing Court

Decree was satisfied through payment of the decretal amount by the defendants/appellants

Government of Pakistan, having not been made party as defendant in the suit, Government of Pakistan through Secretary Defence, assailed ex parte decree, on the plea of fraud, mis-representation and want of jurisdiction; and ex parte decree, was set aside by the Chief Court

By setting aside ex parte decree, Chief Court had paved the way to the judgment-debtors entitling them to invoke the provisions of S.144, C.P.C.

Judgment-debtors filed application under S.144, C.P.C., for restitution/remission of decreetal amount with compound interest

Trial Court dismissed said application

Validity

Defendants who were parties in the suit paid the decretal amount

Trial Court, though had noticed defect in the application, holding that same had not been filed by proper party, but despite having powers to rectify the defect by including the missing party in the application, did not include such party, rather rejected the application filed under S.144, C.P.C., resulting in miscarriage of justice

Provisions of S.144, C.P.C., were enforced, only by filing an application, provided the applicant fulfilled the conditions vide which it was mandatory that the restitution must be in respect of the decree which had been varied and reversed; that the party applying for restitution, must be entitled to the benefit under the decree reversed; and the person who had applied for restitution, was party in the suit before the Trial Court, which had passed the decree

One of the appellants who was party as defendant in the suit; and had paid the decretal amount, because of the execution proceedings, had rightly filed application for restitution

Trial Court, was required to determine the compound interest as claimed by the appellants/ judgment-debtors

Contention of respondent/decree-holder that matter be kept pending till adjudication of main suit between the parties, was repelled, because in view of ex parte decree, appellants, had been affected by paying the decretal amount, which had been reversed

Judgment-debtors, were entitled to be placed in same position as they were prior to the decree, which had been varied

Basic principle underlying right of restitution, was that a wrong done to a party by an act of court, should be rectified

Plaintiff, if would succeed in his suit pending sub judice, he would be remedied by way of payment in that suit through execution proceedings

Impugned order of the Trial Court, was set aside, and application filed under S.144, C.P.C., was remanded to the same court for adjudication on merits, in circumstances.

2015 YLR 2409 LAHORE-HIGH-COURT-LAHORE Judicial Precedent

Ss. 452, 337-H(2), 342, 440, 447, 511, 148 & 149Anti-Terrarism Act (XXVII of 1997), Ss.7 & 23Constitution of Pakistan, Art. 199Constitutional petition

House trespass after preparation for hurt, assault or wrongful restraint, causing hurt by rash or negligent act, wrongful confinement, mischief committed after preparation made for causing death or hurt, criminal trespass, attempt to commit offence, rioting, common object, act of terrorism

Application for transfer of case to the court of ordinary jurisdiction

Dismissal of application

Incident in the case took place at odd hours of night

Civil litigation was pending between the parties regarding property possessed by the complainant

Altercation took place between the complainant and accused, when they went to attend to persue their case before Director Anti-Corruption

No body had received any injury in that occurrence, and commission of the crime by accused at some public place, was not borne out from the record, whereby it could be termed that accused had frightened the general public and created terror and fear amongst the people

Motive for the occurrence in the case was enmity inter se the parties on account of their longstanding civil litigation

Applicability of S.7 of Anti-Terrorism Act, 1997, which primarily required the spread of sense of insecurity and fear in the common mind, did not attract, in circumstances-Impugned order passed by the Special Judge Anti-Terrorism Court, being not based upon proper appreciated facts and the relevant law on the subject, was set aside

Application moved by the petitioner under S.23 of Anti-Terrorism Act, 1997 for transfer of case FIR, was accepted

Case pending before the Special Judge Anti-Terrorism, stood transferred to the court of ordinary jurisdiction.

2015 PCrLJ 1453 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 6, 7 & 23Act of terrorismApplication for transfer of case from Anti-Terrorism Court to ordinary courtDismissal of application

For the purpose of deciding application moved under S.23 of Anti-Terrorism Act, 1997, court had to see the contents of the FIR, and material collected by Investigating Officer

Accused, in the present case, not only created hindrance and obstructions in the performance of duty by the Police, but also intimidated the public servants in order to refrain them from discharging their lawful duties and also created serious violence which was an act of terrorism, punishable under S.7 of Anti-Terrorism Act, 1997

Due to incident, concerned city was closed, general public was prevented from coming out and carrying on their lawful trade and daily business

Due to said act of terrorism, civil life was also disrupted and perturbed

Prosecution, keeping in view the facts and circumstances of the case, had rightly filed the charge-sheet of the case in Anti-Terrorism Court

Trial Court while dismissing the application filed under S.23 of Anti-Terrorism Act, 1997 did not commit any illegality or irregularity requiring interference.

2015 PCrLJ 846 KARACHI-HIGH-COURT-SINDH Judicial Precedent

Ss. 22-A, 22-B, 154, 200 & 561-AApplication to Justice of Peace under Ss. 22-A & 22-B, Cr.P.C. for registration of criminal caseDismissal of applicationApplicant sought quashment of dismissal order of his application

Applicant, had called into question impugned order passed by Justice of Peace, whereby his application for registration of FIR against proposed accused was dismissed

Close relatives of the applicant were involved in various criminal cases against whom FIRs were registered; and in pursuance whereof they were arrested, and sent up for the trial

Persistence of the applicant to get his FIR registered since 2011 against the Police Officials, without having recourse to a private complaint, had depicted that he was only interested to see a criminal case registered against proposed accused through FIR

Held, most efficacious remedy for applicant would be to file a private complaint against proposed accused; as High Court even after directing the registration of a criminal case, could not control and regulate the investigation against them

Applicant failed to satisfy the court as to why so far applicant had not availed the remedy available to him under S.200, Cr.P.C.

No illegality was found in the impugned order passed by Justice of Peace

Applicant, could approach the appropriate forum through private complaint for redressal of his grievance, in accordance with law

Application for quashment of order was dismissed, in circumstances.

2014 GBLR 66 SUPREME-APPELLATE-COURT Judicial Precedent

Ss. 13 & 15Application for ejectment of tenantDismissal of applicationEjectment application was concurrently dismissed by the Rent Controller, Appellate Authority and by the Chief Court

Counsel for petitioner/tenant, had submitted that he on the instruction of the tenant, would not press petition any further, if the petitioner/tenant was given five months time to vacate the shop in question

Respondent/landlord, in attendance, agreed to give five months' time for vacation of the shop

In view of agreement between the parties, and the statement at Bar of the Counsel for the petitioner, shop would be vacated within five months as agreed upon

Petitioner/tenant was directed to vacate the shop within the stipulated time agreed between the parties, and would hand over the vacant possession of the shop to the respondent/landlord, without any hesitation

Order accordingly.

2014 CLC 1148 HIGH-COURT-AZAD-KASHMIR Judicial Precedent

O. XIV, R. 1Framing of issuesPetitioner filed application for reconstruction of record with the contention that same was destroyedDismissal of applicationValidityAverments made in the pleadings related to facts which could be decided in the light of evidenceIssues had to be framed where parties were at issue

Lower court without framing of issues and giving opportunity of adducing evidence decided the case summarily which was not warranted by law

Courts should pronounce its opinion on all relevant points / facts which had arisen or had been raised in a case

Case was remanded to the Additional District Judge for decision afresh after framing of issues and giving opportunity to the parties to lead evidence.