Practice and Procedure

Merely filing an adjournment application does not mean that the case will be adjourned.

Every document filed in Court must have name of the person who submits/files it.

In the present case, the plaintiffs filed a suit for declaration and injunction, and then applied for a summons to be issued to the first defendant (respondent), as their witness

Trial Judge declined the application, and his order was first upheld by the Appellate Court and then by the Revision Court

Validity

In the facts of the present case, if the first defendant fails to appear in the witness box, allowing the plaintiffs to compel her presence by the issue of a witness summons, would be an objectionable practice

Such a practice places the examination and cross-examination of a witness in the wrong hands, hinders fair trial, and obstructs justice

At the same time, it is also a bad practice for parties to refrain from entering the witness box when they are in a position to give personal evidence

Therefore, the first defendant in the suit, giving rise to the present petition, is expected to provide personal testimony in support of her case

If she does not appear without sufficient cause, it will amount to suppression or withholding of evidence, and the Court will be entitled to draw an inference against her

No infirmity was found in the orders of the Courts below, thus, the same were upheld by the Supreme Court

Petition was dismissed, and leave was accordingly refused.

Supreme Court observed that the Supreme Court is mentioned in the Constitution as the 'Supreme Court of Pakistan', without any prefix or adjective, and everyone should endeavour to abide by the descriptions mentioned in the Constitution.

Supreme Court deprecated such practice and observed that it is about time that the practice of adding the word sahib with one's job title is discontinued, as it unnecessarily elevates the status of public servants, which may instil in them delusions of grandeur and a perception of unaccountability, which is unacceptable since it is against the interests of the public whom they are meant to serve.

Threshold applicable to summary dismissal of application in criminal law context explained.

Under the law service by publication is good service even in respect of parties living abroad.

Purpose and benefits of imposing costs on litigants stated.

Under the law service by publication is good service even in respect of parties living abroad.

Purpose and benefits of imposing costs on litigants stated.

Practice of using honorifics or prefixes such as "honourable/ hon'ble" and "learned" while referring to the High Courts or Supreme Court

Propriety

Supreme Court deprecated such practice and observed that the Constitution does not use any prefix or honorific before the High Courts and the Supreme Court nor uses the terms "August" or "Apex" for the Supreme Court; that use of such honorifics or prefixes was linguistically inappropriate, and that for advocates and judges the preference should be to use the language of the Constitution.

Mere wrong section of law or title of application have no bearing on merits of the case.

When a counsel submits affidavit mentioning the reason of non-appearance, it must be given due weight by the Courts /Commission and it is presumed that the same is based on true facts

Affidavit of the counsel alone is sufficient to accept the plea of the counsel, particularly when the record fully supports the version taken in the affidavit.

Any type of proceedings, whether suit, appeal, Constitutional petition, other applications and petitions, execution proceedings or miscellaneous application, etc. filed against a dead person are a nullity in the eyes of law

Even if matter is decided in favour of a party and against dead person, that party cannot be permitted to take benefit of the same.

Pure question of law can be raised at any stage of proceedings.

There can be no estoppel against law.

When a law requires a thing to be done in a particular manner, it should be done in that manner, or not done at all.

Courts of law have no authority to contrive a procedure for conduct of trials that is in contradiction with that prescribed by procedure.

Such proceedings or action does not overrule a provision of substantive law, which cannot be defeated nor any such direction can be made by giving it an overriding effect over substantive provision of Act in question.

When a thing is required to be done in a particular manner it must be done in that manner and not otherwise.

An earlier judgment of a Division Bench is binding on a subsequent Division Bench, and in case if any contrary view is being taken, then the matter has to be referred to the Chief Justice for constitution of a larger Bench to resolve the controversy.

Appellate Tribunal was the last fact-finding forum and was fully equipped with the record and was empowered to determine facts on its own, instead of remanding a matter to a lower forum for determination of facts.

Where there already existed in the field an order/ judgment of the Division Bench (of the High Court) on the subject which was being dealt with and considered (by the High Court) in subsequent cases, said earlier order/judgment had to be adhered to and a different opinion from the one taken in the earlier order/judgment could not be expressed

In such circumstances the matter was to be referred to the Chief Justice for constitution of a larger Bench.

Where there already existed in the field an order/ judgment of the Division Bench (of the High Court) on the subject which was being dealt with and considered (by the High Court) in subsequent cases, said earlier order/judgment had to be adhered to and a different opinion from the one taken in the earlier order/judgment could not be expressed

In such circumstances the matter was to be referred to the Chief Justice for constitution of a larger Bench.

If the life of accused was under threat in approaching the Trial Court, then he could directly approach the High Court for pre-arrest bail.

Earlier judgment of equal Bench of the High Court on the same point was binding on the subsequent Bench and if the subsequent Bench tended to take a different view, it had to request for the constitution of larger Bench.

Prosecution had to prove its case by itself, and it could not rely on version taken by the defence.

Question before the High Court was as to whether the Income Tax Appellate Tribunal, while deciding nine appeals, was justified in failing to advert to the facts and circumstances of each appeal/case and whether the order of the Appellate Tribunal could be termed as a "judgment" or "order" under the provisions of S. 132 of the Income Tax Ordinance, 2001

Held, that decision or determination of the Income Tax Appellate Tribunal on a question of fact attained finality thereby making the said Tribunal the final forum in such regard and failure to advert to a question raised before the Tribunal in itself was a question of law

Legislative intent behind S. 132 of the Income Tax Ordinance, 2001 envisaged a clear, definite and conscious determination and decision on all matters raised before the Tribunal in an appeal and contemplated application of mind and giving reasons for any determination or decision made by the Tribunal after affording an opportunity of hearing to the parties

Appellate Tribunal under S. 132 of the Income Tax Ordinance, 2001 was under a statutory duty to decide an appeal and give its decision in writing and if relevant facts were not taken into consideration or deliberated upon, and the reasons for or against had not been weighed, then it could not be said that the Tribunal had "decided" an appeal and any purported order or judgment without "deciding" the appeal would be a nullity in law

High Court observed that if the Tribunal failed to advert to a question of law or fact raised before it or before any other forum under the relevant statute, it was to be treated as a question of law for the purposes of S.133 of the Income Tax Ordinance, 2001

In the present case, in each appeal; the facts, nature of transaction and contractual relationship between the parties was distinct and separate and the same was also acknowledged by the Tribunal

Tribunal was required to decide the separate appeals by affirming, annulling, varying or amending the impugned orders rather than restricting itself to mere interpretation

Held further that the impugned order of the Appellate Tribunal was not an "order" or "judgment" passed by the Tribunal in terms of S. 132 of the Income Tax Ordinance, 2001 as it failed to advert to the facts and nature of transaction in each case, and consequently failed to "decide" the appeals separately as required under S. 132 of the Income Tax Ordinance, 2001

Impugned order of Appellate Tribunal was set aside, and matter was remanded

Reference was answered accordingly.

Illustration.

Dismissal of application under Order XXI, Rule, 90, C.P.C. without recording of evidence of parties was not justified, and the court, without recording findings adduced on such evidence should not proceed to reject an objection petition filed under Order XXI, R.90, C.P.C.

Initial burden was upon the landlord to discharge that default was committed by the tenant and all that was required of a landlord was to state on oath that rent was not received from the tenant for a given period of time whereafter the burden shifted, under law, upon the tenant, who in his turn had to prove affirmatively, that the payment of rent was made and had to dislodge the claim of default, raised by the landlord, by producing affirmative and convincing evidence.

Despite there being no bar to the acceptance of the plea of guilt of accused, conviction should not normally be based on the plea of guilt in cases involving punishment of death or imprisonment for life

Plea of guilt is not usually accepted

Trial Court should record the evidence itself and judge the case in the light of the evidence so recorded, instead of relying on the plea of guilt or on the evidence recorded by the Enquiry Court.

Each and every case is to be decided on its own peculiar circumstances.

Where all material grounds taken up by petitioner during the course of hearing of appeal had been dealt with and decided by Supreme Court in the judgment under review, re-hearing of the same arguments on the wish of the petitioner in order to obtain a different decision without satisfying jurisdictional requirement necessary for maintaining review petition, is not legally qualified.

Civil and criminal proceedings on the same subject can proceed ahead parallel to each other, under the law.

Law does not restrict filing of second or third complaint on the same subject under Ss.3/4 of Illegal Dispossession Act, 2005, if the earlier complaint had not been decided on merits.

Courts always consider the ground of rule of consistency, because an accused cannot be denied bail whose case is at par with that of co-accused, who had already been granted bail

Courts have to give equal treatment to the accused persons having one and the same role in the same case.

Grant of bail in a non-bailable offence not hit by the prohibitory clause of section 397(1), Cr.P.C. is a rule and refusal thereof is an exception

Refusal of bail to a person entitled to same as of right, can only be justified on some statutory provision or on grounds strictly relatable to the holding of a just and fair trial

Such refusal cannot be justified on any high principles of ethics or morality.

Accused cannot be detained unnecessarily even for a single moment after having been found entitled to bail.

However, exercise of discretion by the court in the matter of granting bail to accused cannot be perverse, fanciful or arbitrary.

Unless and until court of first instance is moved on fresh ground for bail, the same cannot be agitated directly in High Court.

Greater would always include lesser.

Cases of counter-versions arising from the same incident, one given by the complainant in 'the F.I.R. and the other given by the opposite party, require further inquiry as contemplated under S.497(2), Cr.P.C.

Bail in such cases is normally granted on the ground of further inquiry, because it is yet to be decided by trial Court after recording and appraising the evidence as to which of the versions is correct, and where plea of private defence is taken, then which party is aggressor and which party is aggressed.

Supreme Court would not unduly intervene in bail matters, which should ordinarily be left to the discretion of the Courts inquiring into the guilt of the accused persons, which has to be exercised on sound judicial principles

Supreme Court does not interfere with the discretionary powers of the Courts below in bail matters, unless it is satisfied that the order of lower Court is perverse or has been made in clear disregard of settled norms of justice and principles of law.

Grant of bail town accused in every case not hit by the prohibitory clause of S.497(1), Cr.P.C. is not a rule of universal application and each case has to be dealt with on its own facts and circumstances

Court cannot exercise such discretion in an arbitrary, fanciful or perverse manner.

Bail in offences which are not covered by the prohibitory clause of S.497, Cr.P.C. is granted as a rule and its refusal is an exception which practice is being consistently followed by superior Courts.

Confession before the Trial Court on the day of pronouncement of the judgment is not recognized in the Code of Criminal Procedure

Confession even when made under Ss. 164 and 364, Cr.P.C. is viewed with very care and caution and if any fault is found in the procedure, the same is not believed or made a basis for conviction.

High Court is always reluctant in quashing the F.I.R. in exercise of constitutional jurisdiction and inherent powers, but at the same time it is high time for taking effective legal steps to keep the government functionaries, departments, institutions and agencies within their allotted sphere.

Appellate Court while deciding petition for suspension of sentence would not undertake reappraisal of entire evidence but would confine its consideration to the infirmities in the judgment of trial Court with reference to the grounds urged in the memo. of appeal, which would show that conviction was not sustainable in law, and on reaching such conclusion Appellate Court can suspend sentence

While suspending sentence Appellate Court can also consider the fact that the sentence awarded was short and the appeal was not likely to be disposed of soon.

Whatever is not expressly prohibited is permitted.