steps to be taken for expeditious disposal of the case

steps to be taken for expeditious disposal of the cases

Supreme Court while identifying the causes of delay, ordered few steps to be taken for the exercise of powers of Magistrate and Sessions Court in the light of various provisions of the Criminal Procedure Code, 1898, to adopt a uniform procedure in the courts to have expeditious disposal of the cases.

The scheme of the Code of Criminal Procedure is that the police after completing the investigation have to form opinion as to whether or not there is sufficient evidence and reasonable ground or suspension to justify the forwarding of the accused to a Magistrate. If the opinion is in the negative, the police officer is required to release the accused if in custody on executing bond, with or without surety as such officer may direct, to appear if and when so required, before the Magistrate in order to take cognizance of the offence, on a police report and to try the accused or send him for trial as provided under section 169 of the Code.


If the opinion is positive, the police officer is required to forward the accused in custody to the Magistrate empowered to take cognizance of the offence upon a police report for trial of the accused or to send him for trial to the Court of Session if the offence is bailable and the accused is able to give surety, the police officer is required to take surety from him for his appearance before the Magistrate on a day fixed and for his appearance from day to day before such Magistrate. At the same time, the police officer is also required to send to the Magistrate any weapon or other articles which may be necessary to be produced before him along with the bonds of the complainant and witnesses for their appearance before the Magistrate as required under section 170 of the Code.

In both cases, when the accused is released under section 169 or is forwarded to the Magistrate, the police officer is required to submit the report, which is commonly known as challan, in the form provided under section 173 of the Code.

 Thus under the provisions of section 170 of the Code, the police officer is required to produce the property and other articles as are necessary before the Magistrate. If the police did not produce the property before the Magistrate nor the Magistrate directed the police to produce the property, in these circumstances, the process of delay started from the very first stage. Had the police taken proper steps to produce the property before the Magistrate the delay would have not been caused. Equally when the police had not produced the property at the relevant time, had the Magistrate been vigilant enough to ask for the property, the delay in production of the property could have been avoided.


Now, comes the question of absconders and accused released and placed in column No.2 of the challan. The accused who is released with direction to appear before the Magistrate, if and when required by him as provided under section 169 of the Code, it may be stated that in such a case the Magistrate is empowered to discharge the bond executed before the police only or pass any order, as he thinks fit as provided under section 173(3) of the Code.

It is important to note that provision of S.173(3), Cr.P.C. is mandatory, therefore, the Magistrate is required to pass appropriate order. For exercising the above powers, the Magistrate should not act mechanically, as he has to form an opinion as to whether it is a fit case where bond should be discharged or pass any other order including joining him as an accused. For that, he is required to examine the file so as to form his opinion. Such order of the Magistrate is not a judicial order but is an administrative one. If the Magistrate discharges the bond executed before the police of the released accused then it will not preclude the Sessions Court to join such accused in the case as that will be a judicial act which is taken after taking cognizance by Sessions Judge as required under section 193 of the Code. However, the police cannot re-investigate the case against such accused without getting the order of discharge of bond passed by the Magistrate recalled.


As regards the accused who are shown absconders in the challan, it is to be noted that the Magistrate is competent to issue process including warrant of arrest to procure their attendance as provided under section 204 of the Code because he has powers to take cognizance in the matter. Further the evidence against accused, who is absconder can be recorded after declaring him absconder as provided under section 512 of the Code.

The phrase "or send for trial to the Court of Session or High Court" appearing in section 512 of the Code clearly demonstrates that the Magistrate who is empowered to send the case to the Court of Session has also power to record the evidence in the absence of accused after declaring him absconder which can be done as required under sections 87 and 88 of the Code after issuance of warrants of arrest as provided under section 204 of the Code. Thus such Magistrate has power to initiate proceedings under sections 87 and 88 of the Code in a case triable by the Court of Session.

By virtue of section 190(2) of the Code, the Magistrate is required to send the case to the Court of Session without recording evidence, which was enacted after repealing Chapter XVIII of the Code to make the inquiry process simple, but this provision is general in nature applicable to all the accused persons. However, section 512 of the Code is a special provision applicable to particular class of accused i.e. absconders. Therefore, the special provision will prevail upon general provision of the same enactment. Thus section 512 of the Code is an exception to the general provisions of section 190(2) and section 353 of the Code.

Originally such power was not given to the Magistrate, when committal proceedings were being conducted. However, this power was given to the Magistrate after abolishment of committal proceedings. The above phrase was added by the Law Reforms Ordinance, 1972 with a view that the Sessions Court should not be burdened with these type of proceedings because the main function of the Sessions Court is session trial. If the Sessions Court is involved in these types of proceedings, its major portion of time would be consumed in conducting these proceedings, which is being consumed now a days and further the status of the Sessions Court would be reduced to that of court of Magistrate. If the proceedings under sections 87 and 88 of the Code are completed at the level of the Magistrate before the case is sent up to the Court of Session then the Sessions Court will be in a position to start the trial expeditiously and the time consumed in such proceedings by it can be saved.



In order to comply with Ss.87 and 88 of the Code, it is directed that if all the accused are shown absconders in the challan then the case be sent up to the Court of Session after completing the proceedings as provided under section 512 of the Code. After receipt of case, the Sessions Court may pass order for keeping the case on dormant file or pass any appropriate order as it deems fit. If some of the accused are absconders and some are present, then before sending the case to the Court of Session the Magistrate should simply complete the proceedings under sections 87 and 88 of the Code within the shortest possible time but not later than two months after taking cognizance. The Magistrate should ensure that when a case is sent up to the Court of Session it should be complete in all respect enabling the Court of Session to start the trial immediately.

In this connection the Magistrate should provide all the copies of required documents to the accused, to obtain information from the accused as to whether he would engage an Advocate himself otherwise an advocate could be provided to him on State expenses, produce the property, statements of P.Ws. under section 164 of the Code, confession, memo. of identification test etc. The case should be sent up along with a detailed order showing the application of mind as to whether the case is exclusively triable by the Court of Session keeping in view the facts, circumstances of the case and material made available by the police, mentioning all the proceedings including the above mentioned points so as to facilitate the Sessions Court to fix the case for trial. After receipt of the case by the Court of Session, a thorough scrutiny be made to see as to whether anything is lacking or missing which may affect the start of trial then such shortcoming should be removed and fulfilled including engaging an Advocate on State expenses if the accused so demand before the Magistrate. After fixing the case for trial, the Sessions Court should issue process for appearance of the witnesses keeping in view the bonds executed by them before the Magistrate in compliance with the provision of section 173(5) of the Code well in advance preferably not less than one month to the concerned SHO who shall be responsible to produce all the witnesses before the court on the date fixed for trial. If the SHO fails to produce the witnesses before the court, serious action should be taken against him by initiating departmental proceedings by the competent authority of police on the report of Sessions Court including prosecution under section 174, P.P.C. Notice should also be given to the prosecution, the accused and" his advocate one month in advance so that the prosecution and defence could prepare their case and make necessary arrangements with regard to their other professional duties so as to make them available before the court for trial. No adjournment should be granted on any flimsy or artificial ground except on a very strong and cogent cause by assigning valid and legal reasons. The Sessions Court should try the case .on day to day basis till its completion. Non-compliance would entail very serious consequences. Defence Advocate and Prosecutor shall give preference to the session trial except in a case of criminal trial fixed before the High Court on its original side. No obstruction shall be made in the session trial which can be visualized as an obstructing in the administration of justice. In appropriate cases the Sessions Judges may report the matter to the Bar Council for taking appropriate action against such advocate. In short, all stakeholders shall ensure that Sessions trial should not fail.


As regards the pending cases in which the accused are shown absconders, the court should separate the case of accused person, who is in attendance either on bail or in custody from the accused person who is absconder so that an early trial should be started fulfilling the constitutional rights of the accused and complainant for expeditious disposal of the case. After separating the case of accused person, who is absconder the process should be issued in that case to get it ripe for trial.

It is important to note that under section 233 of the Code every charge of a distinct offence which any person is accused should be tried separately except in the cases mentioned in sections 234, 235, 236 and 239 of the Code. Sections 239 deals with joint trial of several accused persons together. A perusal of sections 233 and 239 of the Code reveals that under such provisions a discretion lies with the court to try the offences of the kind indicated therein jointly in the circumstances mentioned therein, but there is nothing in them to indicate that the court is bound to try such offences or persons together in every case.


Further vide Notification GRHD No.223411/40, dated 5-7-1941, it is provided that where more than one accused are involved the commencement of proceedings should not be held up until all the wanted persons are apprehended, but the case should be proceeded with as soon as the principal accused is/are secured…….such reference is available at page 165 of Federal Capital and Sindh Courts Criminal Circulars 1997 Edition.

Thus there is no bar in separating the case of the absconder from the case of accused who is present before the court. All the courts are directed to adopt such method and immediately proceed with the cases in which some of the accused are present before the court after bifurcating and separating the case of absconder and required process be issued against absconder in those cases.


Another factor, which causes delay, is late submission of challan before the court in violation of provisions of section 173 of the Code. The police officials are exposing themselves to take appropriate action in not submitting the challan within the required period of section 173 of the Code. At the same time, Magistrates were asked to take steps to compel the police officers to submit the challan within time. Sessions Judges were directed to supervise such process sin exercise of their revisional powers.

In order to implement the provisions of section 173 of the Code if the police officer does not submit the challan within the required period then such officer prima facie is disobeying the direction of law contained in section 173 of the Code thereby falling within the ambit of offence punishable under section 166, P.P.C. which is a Scheduled offence of Pakistan Criminal Law (Amendment) Act, 1958. As such if the Magistrate finds that any police officer has violated the provisions of section 173 of the Code then he should either himself on behalf of the court or through any officer of the court file complaint before the Special Court created under the above enactment for prosecution of such police officer. The said court should give preference to the case and the same be decided in accordance with evidence and law within a shortest possible time. Such court shall furnish fortnightly report to the High Court about the progress of the case. If the Magistrate performs his functions in accordance with law and under the supervision of the Sessions Judge, then this problem can be solved adequately.

A copy of the order of the Supreme Court was directed to be sent to Registrars of all High Courts for circulating amongst all the Judges and Magistrates for implementation and strict compliance. The Sessions Judges of the Districts are directed to supply a copy of the present order to the District Bar Associations of their Districts for information and strict compliance. A copy of the order was also directed to be sent to PPO/IGPs of all the Provinces and Federal Capital for strict compliance. The PPO/IGPs should issue special instructions to all SHOs and concerned officers to produce all the witnesses before the Court of Session for trial, failing which strict action as permissible under the law should be taken with information to the concerned Sessions Judge and High Court.


P L D 2010 Supreme Court 585

---Guardianship of minors property

P L D 2015 Sindh 46
Before Nazar Akbar, J
FAISAL and others---Applicants
Versus
Mst. KHURSHEED AKHTAR and 2 others---Respondents
Civil Revision Application No.291 of .2012 and Second Appeal No.38 of 2012, decided on 29th August, 2014.
(a) Islamic Law---
----Guardianship of minors property---Sale of property of minor by the mother without permission of court---Effect---"De facto guardian"-- Scope---Mother of minor was not the natural guardian to deal with the property of her minor children---Mother could be de facto guardian of person and property of a minor but she had no power to transfer the property of minors---Alienation of immovable property of minor was possible only by the person entitled to be appointed as legal guardian of property after obtaining permission of the court---Duty of appointing a guardian for the protection and preservation of minor's property would fall on the Judge as representing the State---Person neither a legal guardian nor a guardian appointed by the court but had voluntarily placed himself incharge of the person and property of a minor, would be called "de facto guardian"---"De facto guardian" was merely a custodian of the person and property of the minor but he had no power to transfer any right or interest in the immovable property of minor-- Mother, in the present case, had alienated the property of her minors children and vendees were aware of the fact that they were purchasing the property of minors---Impugned agreement of sale between the mother of minors and vendees was void agreement which could not be enforced---Minors were entitled to their respective share in the suit property as legal heirs of the deceased---Impugned judgments and decrees passed by the Appellate Court were perverse and contrary to law and evidence available on record which were set aside and those of Trial
Court were restored---Second appeal was accepted in circumstances.
Muhammadan Law, S.361 and Muhammad Hanif v. Abdul Samad and others PLD 2009 SC 751 rel.
(b) Words and phrases---
----"De facto guardian"---Meaning---Person who was neither a legal guardian nor a guardian appointed by the court but had voluntarily placed himself incharge of the person and property of a minor, would be called "de facto guardian".
Muhammad Suleman Unar for Applicants/Appellants
Waqar Ahmed for Appellant No.7.
Muhammad Asif Shaikh for Respondents.
Date of hearing: 6th August, 2014.
ORDER
NAZAR AKBAR, J.---By this common Judgment, I intend to dispose of Civil Revision No.291 of 2012 and Second Appeal No.38 of 2012 filed by applicants Nos. 1 to 6 challenging two separate Judgments and Decrees both dated 3-12-2012 passed by the 1st Additional District Judge, Hyderabad in Civil Appeals Nos.222 of 2012 and 246 of 2012 setting aside Judgment and Decree of applicant's Suit No.70 of 2006 for Partition, declaration and reversing the dismissal of respondent's suit N0.49 of 2006 for specific performance both passed by the court of Vth Senior Civil Judge, Hyderabad on 17-4-2012.
2. In fact the applicants in Civil Revision No.291 of 2012 should 'la preferred a second appeal against the Ist appellate Judgment in Civil Appeal No.222 of 2012 since identical law point was involved in the Second Appeal No.38 of 2012 filed by the same appellants against appellate decree in Suit No.49/2006 for specific performance of contract dated 10-6-1997 filed by respondents as the root of dispute was one and the same that whether the "applicants were entitled to partition of their share in the suit property which they have inherited from their father late Zameer ul Hassan but the same was sold by their mother as natural guardian to the respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh by agreement to sell dated 10-6-1997 when they were minors, therefore, this Revision Application No.291 of 2012 is converted into second appeal and be treated as second appeal. The common question of law in both these IInd Appeals is that "whether the mother of the appellants on 10-6-1997 was competent to sell joint property of their predecessor-in-interest to the respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh as natural guardian of appellants Nos.1 to 6, who were minors at the relevant time".
3. The facts leading to both these Second appeals are that by two separate Judgments delivered on 17-4-2012, learned Vth Senior Civil Judge Hyderabad dismissed Suit No.49 of 2006 filed by the respondents namely Javed Ahmed Shailch and Muhammad Akram Shaikh for specific performance of contract dated 10-6-1997 in respect of the House bearing No.C/5 admeasuring 1333 Sq. Ft situated at Mir Fazal Town Unit No.9 Latifabad Hyderabad (hereinafter referred to as the suit property) against the mother of appellants Nos.1 to 6 in which these appellants were also subsequently impleaded, and decreed Suit No.70 of 2006 filed by appellants Nos.1 to 6 for partition, declaration, mesne profits and permanent injunction in respect of same suit property against their mother Mst. Khursheed Akhtar and respondents Javed Ahmed Shaikh and Muhammad Akram Shaikh. Both the findings of Suit No.49 of 2006 and Suit No.70/2006 were in favour of appellants herein but on first appeals filed by respondents Javed Ahmed Shaikh and Muhammad Akram Shaikh bearing Civil Appeals Nos.222 of 2012 and 246 of 2012 ware reversed by the court of 1st Additional District Judge, Hyderabad by two separate Judgments both dated 17-4-2012.
4. Briefly stated the common facts from the two plaints are that appellants Nos.1 to 6 being legal heirs of late Zameer ul Hassan, who died on 3-2-1997, filed suit for partition of their 88% share in the suit property and declaration that the Sale agreement dated 10-6-1997 between the respondents and their mother was null and void against the interest of the appellants. Admittedly at the time of death of Zameer ul Hassan on 3-2-1997, appellants Nos.1 to 6 were minors and their mother having only 12% share entered into agreement of sale dated 10-6-1997 to sell joint suit property and handed over possession of the suit property to the respondents namely Javed Ahmed Shaikh and Muhammad Akraln Shaikh on receiving only Rs.400,000. Appellants Nos.1 to 6 came to know about the sale agreement in 2006 when the respondents filed suit for specific performance of sale agreement dated 10-6-1997 against their mother in the year 2006 in the court
of Vth Senior Civil Judge, Hyderabad. By the year 2006, the appellants Nos.1 to 5 had become major and only the appellant No.6 Ahad Zameer was minor, therefore, the appellants Nos.1 to 6 being joint owner to the extent of 88% share in the suit property after approaching the respondents Nos.1 and 2 to deliver vacant possession of the suit property to them filed suit for partition and declaration that the sale agreement dated 10-6-1997 between their mother and the respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh was ab initio illegal, void and not binding upon them. They also prayed for mesne profits according to the prevailing rent in the area where the suit property is situated for the last three years i.e. from 2003 onwards.
5. The respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh filed their written statement in Suit No.70 of 2006 wherein they admitted that the appellants were minors at the time of execution of sale agreement dated 10-6-1997 and handing over possession of the suit property to them by their mother. However, they claimed that she was competent to enter into such sale agreement being natural guardian of the minors to sell their share in the suit property. The said respondents also claimed that they have already filed suit for specific performance of contract dated 10-6-1997 in respect of the suit property.
6. After framing issues, recording evidence and hearing parties, the Suit No.70 of 2006 filed by the appellants for partition and declaration was decreed and Suit No.49 of 2006 filed by the respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh for specific performance of the sale agreement dated 10-6-1997 was dismissed by the trial court by two separate Judgments both dated 17-4-2012. However, on appeal learned 1st Additional District Judge, Hyderabad allowed both the appeals filed by the respondents namely Javed Ahmed Shaikh and Muhammad Akram Shaikh by two separate Judgments both dated 3-12-2012 holding that mother of appellants Nos.1 to 6 was competent to sell out the suit property being natural guardian of appellants Nos.1 to 6 who were minors and in both the Judgments learned appellate court has relied upon the cases reported in 2002 MLD 202 and AIR 1936 Lahore 2020. The appellants have preferred these second appeals challenging both the Judgments and Decrees of the appellate Court.
7. I have heard the learned counsel for the parties and perused the record.
8. The only point involved in both these appeals is that whether the appellate court while reversing the findings of the trial court has properly appreciated the law on the point of the authority/competency of mother of the minors to enter into an agreement to sell their 88% share in immoveable property without being appointed as guardian of the property of the minors by a competent court and without obtaining permission to sell the property of the minors.
9. Learned counsel for the respondents has raised only one contention in support of the impugned Judgments of the appellate court that the mother is "natural guardian", therefore, she was competent to enter into agreement of sale of the entire property. He has not been able to show any case-law on this point that being the natural guardian she was not required to be appointed as guardian of the property of her minor children.
10. On the other hand, the counsel for the appellants has urged that the learned appellate court has neither advanced any reason nor referred to any law to come to the conclusion that the mother being natural guardian was not required to seek permission of the court to sell the immoveable property of minors. He has further contended the learned appellate Court by referring to the section 7 of the Guardians and Wards Act, 1890 (hereinafter referred as G & W Act) has drawn an erroneous conclusion that mother as natural guardian was competent to sell property of her minor children. He has further pointed out that the learned appellate court has relied on AIR 1936 Lahore 2020, but the AIR 1936 Lahore 2020 has not ever been published. The learned counsel for the respondents has also informed the court that he too has not been able to lay his hand to the said citation which the learned appellate court has mentioned in the impugned judgment.
11. I regret and feel embarrassed in reading the impugned judgment of the appellate court. The Presiding Officer of the appellate Court seems to be devoid of any possible legal acumen of an ordinary man. He has relied on a case-law in the impugned judgment but neither he has mentioned the parties name nor the point of law settled in the said case-law to justify setting aside a well reasoned judgment of trial court on the basis of such case-law. Not only that the appellate court probably without reading the provisions of section 7 of G & W Act has declared that mother is natural guardian, therefore, in terms of section 7 of the G & W Act, 1890, she was not required to seek her appointment as guardian of personal property of the minors. It is indeed unfortunate that the appreciation of section 7 of G & W Act, by the Presiding Officer of Ist Additional District Judge Hyderabad was erroneous. Section 7 of G & W Act does not talk about mother's authority to sell immoveable property of minors as natural guardian and, therefore. I deem it necessary to reproduce section 7 of the Guardian and Wards Act, 1890:--
7. Power of the Court to make order as to guardianship.---(1) Where the Court is satisfied that it is for the welfare of a minor that an order should be made?
(a) appointing a guardian of his person or property, of both or
(b) declaring a person to be such a guardian, the Court may make an order accordingly.
(2) An order under this section shall imply the removal of any guardian who has not been appointed by will or other instrument or appointed or declared by the Court.
(3) Where a guardian has been appointed by will or other instrument or appointed or declared by the Court, an order under this section appointing or declaring another person to be guardian in his stead shall not be made until the powers of the guardian appointed or declared as aforesaid have ceased under the provisions of this Act."
12. It is also noticed that the learned appellate court while reversing the judgment of the trial court has not reflected on the reasons given by the trial court while dismissing the suit for specific performance filed by respondents and allowing the suit for partition of suit property and declaring that the agreement of sale dated 10-6-1997 was void ab initio illegal. The trial Court while declining the relief of the specific performance of contract has relied on the admissions of the respondents in his evidence that the respondent had entered into an agreement with the mother of the minors knowing well that she was not owner of the entire property at the time of entering into agreement of sale. The trial court has also referred to clause-IV of the agreement of sale in which the respondent has himself mentioned that the mother will obtained a certificate of guardianship meaning thereby that the respondents were conscious of the fact that they were entering into agreement of sale of the property of the minors with their mother who would require certificate of guardianship from a competent Court to validate such sale agreement. Rut the appellate court has ignored not only the reasoning advanced by the trial court without even commenting on the same but also ignored the evidence of respondent.
13. I have also noticed that besides AIR 1936 Lahore 2020 which
Was never published, the other case-law relied upon by the appellate
Court i.e. 2002 MLD 202 (Mst. Zubeda Begum v. Additional Sessions
others) was also not relevant at all. In this Judgment issue was right of "Hizanat" and contest was between mother and grandmother of Pth the minors. Question of sale of immoveable property of minors by mother was not in issue nor it can be inferred from the said case-law that court has held that the mother was natural guardian of the property of the minors. Under Mohammadan Law, the mother has never been treated as guardian of the property of the minors. In the
Mohammadan Law by D.F. MuIla, Chapter-18 is on the subject of Guardianship of person and property. The sections 352 to 358 deals with the proposition of appointment of "guardian of the person of minors" and sections. 359 to 368 are on the proposition of appointment of "Guardian of the property of minor". Perusal of these sections reveals that mother or for that matter any "female" relative of minor is not mentioned as qualified to be appointed as "legal guardian of property of minor". In this chapter "mother" is entitled to only custody (Hizanat) of her child to certain age (section 352) and even that right of as Hizanat is subject to fulfillment of certain conditions (section 354).
14. It is settled law that according to Mohammadan Law, the mother of minor is not the natural guardian to deal with the property of her minor children. At the most, the mother can be de facto guardian of the person and property of a minor in term of section 361 of the Mohammadan Law, but she has no power to transact the property of the minors. Alienation of immovable property of minors is possible only by A the persons entitled to be appointed as legal guardians of property under section 359 of Mohammadan Law subject to the conditions enumerated in section 362 ibid after obtaining the permission of the court in terms of section 362 ibid. In coming to this conclusion I am fortified with the Judgment of honourable Supreme Court in the case reported in PLD 2009 SC 751 (Muhammad Hanif v. Abdul Samad and others). In this Judgment, the honourable Supreme Court has examined several other case-law both from the jurisdiction of Pakistan and Indian Supreme Court while holding that mother under the Mohammadan law is entitled only to the custody of the person of her minor child upto a certain age according to sex of the child but she is not natural guardian of the property of the minors. At the most she can be a de facto guardian of the property of her minor children. Relevant paras Nos.6 and 7 from the Judgment are reproduced below:--
"6. We have heard the learned counsel for the parties and have also perused the available record with their able assistance. The bare perusal of exchange Mutation No.62, dated 30-5-1967 passed by the Assistant Collector would make it manifestly clear that Mst. Ghulam Fatima, the respondent No.7, was a minor at that time and that her mother Mst. Rabia, the respondent No.6 , got transferred in her favour the suit land of her minor daughter, by way of exchange. There is nothing on record to show that Mst. Rabia was ever appointed by any competent Court to be the guardian of the property of her minor daughter Mst. Ghulam Fatima, the respondent No.6, albeit mother of respondent No.7, was not the natural guardian to deal with the property of her minor daughter, the respondent No.7, under the Mohammadan Law. At the most, she was the de facto guardian of the property of her daughter. Therefore, the exchange mutation No.62 showing exchange of suit land between the mother and her minor daughter was illegal.
7. In the principles of Mahomedan Law by D.F. Mulla, (Pakistan Edition) (1995), it is stated that in section 359 the following persons are entitled in order mentioned below to be the guardians of
the property of a minor:--
(1) The father;
(2) The executor appointed by the father's will;
(3) The father's father;
(4) The executor appointed by the will of the father's father;
In section 360, it is provided that in default of the legal guardians appointed in section 359, the duty of appointing a guardian for the protection and preservation of the minor's property falls on the Judge as representing the State. As regards a de facto guardian, it is laid down in section 361 a person may neither be a legal guardian (section 359) nor B a guardian appointed by the court (section 360) but may have voluntarily placed himself incharge of the person and property of a minor. Such a person is called de facto guardian. A de facto guardian is merely a custodian of the person and property of the minor. Section 364 leaves no doubt that a de facto guardian (section 361) has no power to transfer any right or interest in the immoveable property of the minor.
15. In the case in hand it is an admitted position that the mother has alienated 88% property of her minors children and the respondents were fully aware of the fact that they were purchasing the property of minors Within hardly four months of the death of their father Syed Zameer ul C Hassan, who died on 3-2-1997. Consequently, the agreement of sale dated 10-6-1997 between Mst.Khursheed Akhtar and Javcd Ahmed Shaikh and Muhammad Akram Shaikh was void agreement which cannot be enforced against applicants/appellants Nos.1 to 6. Appellants are entitled to their respective share in the suit property as legal heirs of deceased Syed Zameer ul Hassan.
16. In view of the above discussion, I hold that both the judgments and decrees of the appellate court assailed in these second appeals were D Perverse and contrary to law and even evidence, therefore, these second Pit, appeals are allowed and the judgments and decrees of the Ist appellate court in Civil Appeals No.222 of 2012 and 246 of 2012 are set aside and D the
Judgments and Decrees delivered by the trial Court in Suits Nos.49 of 2006 and 70 of 2006 are restored. The respondents shall bear the cost throughout.
AG/F-16/Sindh Appeal allowed.

Encroachment of public path and raising constructions thereon illegall

PLJ 2000 Lahore 916

Present: zafar pasha chaudhry, J. MUHAMMAD and 2 others-Petitioners

versus

KHYZER HAYAT and 4 others-Repsondents

W.P. No. 21584 of 1997, decided on 6.5.1999.

 Criminal Procedure Code, 1898 (V of 1898)--

—Ss.   133,   138   &   139-Constitution   of Pakistan   (1973),   Art.   199--Encroachment of public path and raising constructions thereon illegally-- Allegations against petitioner-Appointment of jury by Magistrate and passing of orders for removal of illegal constructions before submission of report of jury-Departure from procedure laid down in S. 138 Cr.P.C.--Constitutional petition-Maintainability-Right to raise construction is civil right which has to be determined after recordng of evidence and civil Court is competent forum for purpose—Parties have already gone to civil Court-Words as used in Chapter X of Public Nuisance clearly show that any order passed by Magistrate U/S. 133 or under any succeeding section in chapter is tentative in nature and same is always subject to ultimate adjudication of question of right of parties by civil Court-There is material available showing that construction on property exists for the last quite many years and obstruction as alleged by Respondent No. 1 in application is not of nature where proceedings U/S. 133 Cr.P.C. would readily be attrated-Since disputed question of fact is involved and no inquiry can be undertaken in writ petition, proper forum is civil Court where parties have already gone-Held: Fact in issue in between parties will be adjudicated upon by civil Court after correcting relevant evidence and whatever order is passed by Civil Court will have prevelance— Petition disposed of with above observations. [Pp. 918 & 919] A, B, C & D

Rana Abdul Mqjeed, Advocate for Petitioners.

Mr. Nazir Ahmed Qureshi, Advocate for Respondent No. 1.

Date of hearing: 6.5.1999.

order

This Writ Petition has been filed assailing the order dated 22.3.1997 passed by Assistant Commissioner Tehsil Piplan District Mianwali, on an application moved by Khizar Hayat Respondent No. 1, U/S. 133 Cr.P.C. on 19.12.1995 and also the order dated 27.8.1997 passed by learned Additional Sessions Judge, Mianwali whereby the petitioner's revision petition against the above said order of the Assistant Commissioner was dismissed. It is stated inter alia that in the application the Respondent No. 1 had alleged that the petitioner has encroached upon the public path and also raised constructions thereon illegally. The application was resisted by the petitioner, on which a jury was appointed with the direction to submit its report within fifteen days. Before the report was submitted, proceedings were stayed by the learned Additional Sessions Judge on 24.7.1996 but inspite of the same on 22.3.1997 the learned Magistrate passed the impugned order directing the petitioner to remove the illegal constructions. The main ground urged in the petition is that the procedure prescribed U/S. 138 Cr.P.C. was not adopted and before the jury could submit its report the order was passed against the petitioner. As the claim of the Respondent No. 1 had been denied, it was incumbant upon the Magistrate to have appointed a jury and only after the receipt of its verdict and also holding an enquiry as envisaged U/S. 138 Cr.P.C., the order could have been passed. It was also imparative on the learned Magistrate to have passed a conditional order which was also not done. It is further argued that the constructions on the premises exist for the last more than 15/20 years which has also been verified by the local commission appointed by this Court. Further that no construction has been raised unauthorisedly by the petitioner, therefore, no proceedings could be initiated U/S. 138 Cr.P.C. In support of his contention the learned counsel has placed reliance on case titled: "Azam Khan and others vs. The State" (1989 P.Cr.L.J. 2286) and "Allah Dad vs. Abdul Karim", (1972 P.Cr.L.J. 680).

2.        That the petition has been resisted by the Respondent No. 1 on he ground that the petitioners have also instituted a civil suit seeking a declaration that  etitioners construction is not unauthorised and no public path exists as claimed by the respondent over the said land. The Respondent No. 1 alongwith other ten respondents of the locality have prayed to be impleaded as a party. The Civil suit is still pending adjudication before the competent Civil Court. It has been further pleaded that the two Courts below i.e. learned Magistrate as well as learned Additional Sessions Judge, have decided the case against the petitioners, therefore, concurrent findings recorded by both the Courts below may not be interferred with.

3.        Arguments heard and record perused. The main ground urged by the petitioners is that the construction exist on the premises for the last more than 15/20 years and in that behalf he has referred to the report of local   commission   appointed   by   this   Court,   according   to   which   the construction appears to be old one and may be about 15 years old. The report has been disputed by the respondent. The fact remains that the right to raise constructions is a Civil right which has to be determined after recording of the evidence and Civil Court is the competent forum for that purpose. The parties have already gone to Civil Court. The impression of the petitioners that the proceeding cannot be challanged as laid down Under Section 133(2)
Cr.P.C:

"No order duly made by a Magistrate under this section shall be called in question in any Civil Court."

It means that if the proceedings have been taken up competently by a Magistrate U/S. 133 Cr.P.C., the same cannot be challanged and as such a protection has been provided to the orders passed by the Magistrates but it does not mean that if a civil right of a party has to be determined, the jurisdiction of Civil Courts has been barred. The civil Court is a Court of plenary jurisdiction and any dispute of civil nature is within the cognizance and jurisdiction of Civil Court. The words as used in Chapter X of the Public Nuisances clearly show that any order passed by the Magistrate U/S. 133 or under any succeeding section in the Chapter is tentative in nature and same is always subject to ultimate adjudication of question of right of the parties by the Civil Court. It has been clearly laid down Under Section 139-A(2) Cr.P.C. as follows:such denial, he shall stay the proceedings until the matter of the existence of such right has been decided by a competent Civil Court; and, if he finds that there is no such evidence, he shall proceed as laid down in Section 137 or Section 138, as the case may require."

Thus it becomes abonduntiy clear that if the dispute arises with regard to the determination of a right the same would be adjudicated upon by Civil Court and the same will have prevalence over any tentative order passed by the Magistrate U/S. 133 Cr.P.C. or any other succeeding section of this Chapter. The provisions of Section 133(2) or 134(2) Cr.P.C. as already observed are meant to provide a protection to the order passed by a Magistrate but does not mean that rights and liabilities of the parties cannot be adjudicated upon or determined by the Civil Court. The only rational interpretation to these provisions can be that the powers have been invested with the Magistrate to abate the nuisance or abstraction summarily to ensure peaceful enjoyment by the public of the various rights enumerated U/S. 133 Cr.P.C. This section is meant to provide immediate relief to an aggrieved person against the high-handedness of any individual. But if from the facts and circumstances, it emerges that the dispute relates to adjudication of rights pertaining to the property or other easement and for that prima facie there appear to be good reasons to believe, the matter ultimately be decided by the Civil Court, as in the instant case from the averment of the parties and also from the report submitted by the local commission, there is material available showing that the construction on the property exists for the last quite many years and obstruction as alleged by the Respondent No. 1 in the application is not of the nature where proceedings U/S. 133 Cr.P.C. would readily be attracted. Since the disputed question of fact is involved and no inquiry can be undertaken in the writ petition, the proper forum is a Civil Court where the parties have already gone. I am, therefore, not inclined to issue writ straight away declaring the orders passed by the learned Courts below as illegal or without lawful authority. However, the writ petition is disposed of with the observation that the fact in issue in between the parties will be adjudicated upon by the Civil Court after collecting relevant evidence and whatever order is passed by the Civil Court will have prevelance. The Civil Court is also competent to regulate the interim user by way of interim injunction. This writ petition is disposed of with the above observations.

(B.T.)                                                                              Petition disposed.

AGAINST NADRA

A VERY IMPORTANT JUDGEMENT OF LAHORE HIGH COURT
AGAINST NADRA

For correction of NAME in NADRA Records/CNIC
without getting COURT ORDER

Ss. 9 & 5(3)---National Database and Registration Authority (NIC) Rules 2002, R.13---Constitution of Pakistan, Art. 199---Constitutional petition---correction on National Identity Card issued by NADRA---Petitioner had sought correction on his national identity card on the ground that the name of his father had been in correctly entered---NADRA (respondent) refused to make the necessary correction on the ground that for a change in the father's name; a court order was necessary---NADRA, to support such contention, relied on its Registration Policy and Standard Operating Procedures (SOPs)---Validity---Error was clearly a typographic mistake---National database was required to be maintain ed by NADRA, and every citizen was required to be registered and to effectuate such registration, every citizen was issued a national identity card---National Identity Card (cnic ) was a legal document for the identification of a citizen, and its issuance meant that the in formation contain ed therein was valid and correct---NADRA, by not correcting an error in its database or on the cnic , was, in fact, going against the spirit of the Ordinance, and was not performing its primary function and was perpetuating a wrong in its own database, thereby negating the purpose of the national identity card---NADRA, was bound to maintain a correct database and was bound to print correct in formation on the cnic and was obligated to correct any error in its database or the cnic it issued to a citizen---Standard Operating Procedures (SOPs) and Registration Policy were internal instructions to enable NADRA to achieve optimum level of efficiency and to ensure consistency and infirmity in its procedure and process---Standard Operating Procedures (SOPs) did not have the force of law and were not bin din g on the NADRA---Standard Operating Procedures were internal documents, at best, and could not form the basis of denying the petitioner the right to have the correct in formation maintain ed in the citizen database and printed on the cnic ---Standard Operating Procedures could not form the basis for NADRA to refuse to correct an error in its record because if the error was not corrected, it would negate the very purpose of issuing a cnic to a citizen---Delay in filing an application for correction of an office mistake could not hamper or prevent the process of actually correcting the NADRA database, or the cnic ---High Court directed NADRA to treat the pending request of the petitioner as a correction of an office mistake and to correct the petitioner's father's name in the database and issue him a new cnic ---Constitutional petition was allowed, accordingly.(2012 PLD 378 LAHORE-HIGH-COURT-LAHORE

Ghazi ilam ud Din ( share it on ur wall and save it)

That is the detail judgement about Ghazi ilam ud Din ( share it on ur wall and save it)
Ilam ud Din v. Emperor
A.I.R. 1930 Lahore 157
Ilam Din murdered Rajpal, the publisher of the pamphlet "Rangila Rasul", on April 6, 1929. Ilam Din was sentenced to death on May 22, 1929. Mohammed Ali Jinnah and Farrukh Hussain filed an appeal to the Lahore High Court against the death sentence. Following is the All India (Law) Reporter record of the case.

A.I.R. 1930 Lahore 157
BROADWAY and JOHNSTONE, JJ.
Ilam Din—Accused - Appellant.
v.
Emperor—Opposite Party.

Criminal Appeal No. 562 of 1929, Decided on 17th July 1929 from order of Sess. Judge, Lahore, D/- 22nd May 1929.

Penal Code, S. -302—That murderer is 19 or 20 years of age and murder prompted by veneration for founder of religion is not extenuating circumstance.

The mere fact that the murderer is only 19 or 20 years of age and that the act was prompted by feelings of veneration for the founder of his religion and anger at one who had scurrilously attacked him, is a wholly insufficient reason for not imposing the appropriate sentence provided by law: A.I.R. 1928 Lah 531, Ref.
[P158 C1, 2]

Mohammd [sic] Ali Jinnah and Farrukh Hussain—for Appellant.
Ram Lal and J.L. Kapur— for the Crown.

Broadway, J.—Ilam Din, son of Talia Mand, a Tarkhan of some 19 or 20 years of age, and a resident of Mohalla Sirianwala, Lahore City, has been convicted of having caused the death of one Rajpal on 6th April 1929, and, under S. 302, I.P.C., has been sentenced to death. He has appealed, and the case is also before us under S. 374, Criminal P.C.

The deceased was a Hindu book-seller having a shop in the Hospital Road. Some little time back he had given grave offence to the Muslim community by the publication of a pamphlet entitled "Rangila Rasul." He had been proceeded against under S. 153-A, I.P.C., in connexion with this publication, and after a protracted trial, had been convicted in January 1927. His conviction was, however, set aside by the High Court in May 1927.* [Rajpal v. Emperor, A.I.R. 1927 Lah. 590.] The pamphlet was a scurrilous production and had wounded the susceptibilities of certain members of the Muslim community to such an extent that his acquittal was followed by two abortive attempts to murder the author, with the result that it was found advisable to afford him police protection.

It seems that he had recently gone on a visit to Hardwar and, during his absence, the guard was removed. He returned from Hardwar on 4th April and whether the guard had not yet been restored or had been temporarily absented himself (the point is immaterial) he was murderously attacked in his shop at about 2 p.m. on 6th April.

That his assailant intended to cause death is established by the medical evidence which shows that he received no less than eight wounds, seven being incised and one a punctured one. The nature of these injuries also show that Rajpal endeavoured to defend himself, for four of the incised wounds were on his hands. He received a wound on the top of his head that cracked the right parietal bone, two incised wounds above the spine of the left scapula and a punctured wound in his chest. This last pierced the heart cutting the fourth rib and caused almost instantaneous death.

The case for the prosecution is that the appellant purchased a knife from Atma Ram (P.W. 8) on the morning of 6th April, proceeded to the ship of the deceased at about 2 p.m. and attacked him as he was sitting on the gaddi in the outer verandha writing letters. The assault was witnessed by Kidar Nath (P.W. No. 2) and Bhagat Ram (P.W. No. 3) employees of the deceased who were in the shop at the time, the former sitting at work in the inner verandah and the latter standing on a ladder in the outer verandah or room arranging books on the shelves. They raised an alarm, threw books at the appellant who dropped his knife and ran out. He was pursued by Kidar Nath and Bhagat Ram who were joined outside by Nanak Chand (P.W. No. 4) and Parma Nand (P.W. No. 5). The appellant turned into a woodyard belonging to Vidya Rattan, who had seen the pursuit from his office door and who hastened into the woodyard and seized the appellant, being assisted by the pursuers who were on his heels. The appellant is then stated to have repreatedly [sic] and loudly proclaimed that he was neither a thief nor a dacoit but had "taken revenge for the prophet." Ilam Din was taken to the deceased's shop, the police were notified and took over the appellant and the investigation.

A very brief report was made by Kidar Nath who said nothing of the assertions made by Ilam Din when he was captured, and did not mention the name of his fellow servant.

On the following day as a result of a statement made by Ilam Din to the Police, the shop of Atma Ram was discovered, and on 9th this Atma Ram picked out the appellant at an identification parade held under the supervision of a Magistrate as the man to whom he had sold the knife found in Rajpal's shop.

There can be no doubt that Atma Ram could have sold the knife as he had several of identically the same make and pattern, two of which have been produced as exhibits. He stated that he bought these knives at an auction sale of Medical Stores.

M. Jinha [sic] has attacked the prosecution story on various grounds. He urged that Kidar Nath was not a reliable witness because (1) he was an employee of the deceased and therefore, "interested;" (2) he had not stated in the First Information Report (a) that Bhagat Ram was with him, and (b) that the appellant had stated that he had avenged the Prophet. As to Bhagat Ram it was contended he, as an employee, was interested, and as to the rest that there were variations in some of the details.

Objection was taken to the admissibility of the statements made to the police which led to the discovery of Atma Ram, and Atma Ram's identification of Ilam Din and his testimony regarding the sale of the knife to Ilam Din were characterised as untrue and improbable. (His Lordship after discussing the evidence held that the guilt had been established and proceeded as follows.) Mr. Jinnah finally contended that the sentence of death was not called for and urged as extenuating circumstances, that the appellant is only 19 or 20 years of age and that his act was prompted by feelings of veneration for the founder of his religion and anger at one who had scurrilously attacked him.

As was pointed out in Amir v. Emperor (1): [A.I.R. 1928 Lah. 531.]:
"the mere fact that the murderer is 19 or 20 years of age, * * * * is a wholly insufficient reason for not imposing the appropriate sentence provided by law."

The fact that Ilam Din is 19 or 20 years of age is not, therefore, a sufficient reason for not imposing the extreme penalty and I am unable to see that the other reasons advanced by Mr. Jinnah can be regarded as affording any excuse for a deliberate and cold blooded murder of this type.

I would, therefore, dismiss the appeal and confirm the sentence of death.

Johnstone, J.—I concur.
V.B./R.K. U