Foreword

Foreword
In a judicial service, learning is on-going process. It is said judges wear the law in their robes or sleeves, to interpret and apply law is responsibility assigned to judiciary or Judges, let me exercise such prerogative, of interpreting “wearing law in one’s robe or sleeves” means and include having statute and law books in one’s book shelf and or in the library, and now on the Net ’ as well”. A Judge culls wisdom drawn through the tool of ability and knowledge, which a Judge needs to learn and sharpen to know where to find the right statute and precedent law, and skill to apply the statute and precedent law in its proper perspective in a given situation. To learn the skill and sharpen the ability to apply law there no better place than the court room it, self. Court room is the battle field where a judge learns the skill how to sift the grain from the sheaf, how to discover the truth from heap of lies. Judiciary is the sanctuary of justice and guardian of life, liberty and rights as guaranteed under the Constitution of Pakistan, 1973.
Judicial Academies are the institute of learning, where the trainees Judges are transformed into judges and serving judges into better judges. In order to teach and train the judicial officers, it was proposed that a Bench Book may be kept handy with the Judges which may contain most of the relevant laws and an easy commentary for understanding. This Bench Book is prepared with an aim to provide a handy tool to the Judges, it contains most of the laws of general practice and will help the Judges in appreciating laws and to find solution of problem they are faced day to day in Court. This bench book also contains important guidelines from famous judgments announced by Hon ’ble Superior Courts, which have binding effect on all the Judges of District Judiciary as per the Constitution of Islamic Republic of Pakistan.
A Judge is expected to have mastery over all laws, rules and regulations as the people expect that their fate should only be decided by an expert on the subject This Bench Book, has been compiled after taking necessary input/feedback from judicial officers and Judges. Justice (R) Shabbir Ahmed, a stalwart and a bold judge Sindh Judiciary is proud of producing, has put in personal effort and time tested knowledge in this Bench Book. The Bench Book will provide guidance to all the Judges especially of the District Judiciary while trying and deciding the cases. I recall the famous paragraph so stated by Mr. Justice Thomas, which I would like to share as under:
“We form a particular group in the community. We comprise a select part of an honourable profession.
We are entrusted, day after day, with the exercise of considerable power. Its exercise has dramatic effects upon the lives and fortunes of those who come before us. Citizens cannot be sure that they or their fortunes will not someday depend upon our judgment. They will not wish such power to be reposed in anyone whose honesty, ability or personal standards are questionable. It is necessary for the continuity of the system of law as we know it, that there be standards of conduct, both in and out of court, which are designed to maintain confidence in those expectations. "(2nd ed.
(1997) p9).
It is hoped that the Bench Book will prove to be a handy tool that may assist a judge to understand complexity of a situation and manner in which law is to be applied. It may help them to cull wisdom from the precedent law authored by some of the fine judicial brains of our country and may help them arriving at just conclusion and so maintain their judicial independence. I believe this Bench Book will prove to be a valuable tool in assisting judges to deal with difficult problems with ease.
In the end I would like to quote excerpt from the Famous Epistle written by Hazrat Ali IbnAbiTalib, Radiya' llahTa 'aalaanhuwa-KarramAllahuwajhahu. (May Allah Almighty be pleased with him and honor him to HazratMalik Ashtar (May Allah Almighty be pleased with him), Governor of Egypt. If we judges read this epistle as if it has been written to us, I can say without fear of contradiction that there can be no better guide line for a judge to faithfully follow and practice and all those who may follow such golden guideline will surely be entitled for the blessing of the QaziulAlameen and RahmatulAlameen on the Day of ultimate Judgment.
"Select for your chief judge one from the people who is by far the best among them -one who is not obsessed with domestic worries, one who cannot be intimidated, one who does not err to often, one who does not turn back from a right path once he finds it, one who is not self-centered or avaricious, one who will not decide before knowing full facts, one who will weigh wit care every attendant doubt and pronounce a clear verdict after taking everything into full consideration, one who will not grow restive over the arguments of advocates and who will examine with patience every new disclosure of fact and who will be strictly impartial in his decision, one who flattery cannot mislead or one who does not exult over his position. But it is not easy to find such men.
Once you have selected the right man for the office, pay him handsomely enough, to let him live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high none can even dream of coveting it and so high that neither back-biting nor intrigue can touch him.
Beware! The utmost carefulness is to be exercised in his selection: for it is this high office which adventurous self-seekers aspire to secure and exploit in their selfish interests. After the selection of your chief judge, give careful consideration to the selection of other officers. Confirm them in their appointments after approved apprenticeship and probation. Never select men for responsible posts either out of any regard for personal connections or under any influence, for, that might lead to injustice and corruption.
Of these select for higher posts men of experience, men firm in faith and belonging to good families. Such men will not fall an easy prey to temptations and will discharge their duties with an eye on the abiding good of others. Increase their salaries to give them a contented life. A contented living is a help to self-purification. They will not feel the urge to tax the earnings of their subordinates for their own upkeep. They will then have no excuse either to go against your instructions or misappropriate state funds. Keep to watch over them without their knowledge, loyal and upright men. Perchance they may develop true honesty and true concern for the public welfare. But whenever any of them is accused of dishonesty and the guilt is confirmed by the report of your secret service, then regard this as a sufficient to convict him. Let the punishment be corporal and let that be dealt in the public at an appointed place of degradation.
I wish to quote from the speech of Quaid-e-Azam Muhammad Ali Jinnah broadcasted from Radio Pakistan on 30 October 1947.
“We have undoubtedly, achieved Pakistan and that too, without bloody war and practically peacefully by moraland intellectual force and with the power of pen, which is no less mighty than the sword and our righteous cause has triumphed. ”
In the last I wish to remind you the sacrifices made by the Judiciary under the able leadership of Honourable Chief Justice of Pakistan, when he courageously said Golden “NO” to a dictator on November 3, 2007, which was a bold step toward an independent, fearless, and courageous, judiciary, that has pledged to uphold the Constitution and rule of Law at all cost. I hope we judges will always safe guard such Independent judiciary, and use our pen to the best of our ability that may always maintain supremacy of Constitution and rule of law, come what may.
In the last I must appreciate on my behalf and on behalf of the Sindh Judiciary efforts and good work put in by Honourable Justice (RJShabbir Ahmed in producing such a wonderful, handy and practical Bench Book, all was done as a social service without expectation of any reward. I would also invite all the Honourable Judges and Retired Judges of superior Courts, Judicial officers to share their knowledge and wisdom with young judges and judicial officers and help Sindh Judicial Academy and Judiciary as a whole in developing Bench Books and other learning tools.
I wish all the Judges and Judicial Officers best of luck and advise them to be sincere, be patient, display high tolerance, never hesitate in seeking guidance from their peers and seniors, read vociferously law journals and be upright and firm in their decision, may Allah Almighty be always with them.
(Justice Mushir Alam)
ChiefJustice
High Court of Sindh

Preface

Preface
The function of every Judge, trial or appellate, is to decide the cases brought before him according to law and in a manner accepted by society as just, fair and reasonable. The creditably and legitimacy of judicial decisions depend not only on its merits and soundness in law, but also on public perception of impartiality and objectivity of procedure adopted by the judge. The most important of his function is to conduct the proceedings in a fair, orderly and dignified manner. Finding the truth of contested issues of fact is the first concern of the trial judge. Based on facts ascertained, the judge is to apply the law and give his decision on guilt, liability etc. For ensuring “fairness” in truth ascertainment and minimizing subjectivity in the process, procedural law gives right and privilege to litigants, witnesses and officers of the court. It is the function of the judge to give protection to these rights and privileges of the parties so that justice is not only done but appears to have been done.
This is the function which demands a variety of skills on the part of the judge besides knowledge of law. The judge’s personality and values influence his decisions and the atmosphere he creates in the court room. His body language and tone of voice, his reactions to witnesses, his interaction with others in the courtroom, his manner of ruling on objections, his treatment with advocates all effect public perception of fairness of trial.
The judges at primary level also have the responsibility to critically evaluate pleadings, settle issues, handle interlocutory applications and manage the introduction of evidence by parties to the dispute. In the process, he may issue commission and invoke method of alternative resolution of dispute before him. The judge has to rule on evidentiary contests on the admissibility, relevancy and probate value. He must be able to appreciate evidence,
assess the credibility of witnesses, and determine fact on the basis of preponderance of probabilities.
The judge has to perform the most important function of delivering judgment on which his creditably and acceptability is determined by the legal fraternity, the parties and the society at large. Judicial reasoning is both an art and a science to be cultivated by every judge by study and communication is critical for this task. Complex factual situations have to be analyzed and important legal principles have to be explained, to avoid possible contrary conclusion.
The judge must be able to put it such way that even if the matter goes on appeal, the appellate judge should find it persuasive enough to go by the finding of the trial judge.
A judge is expected to be an expert in all areas of the law, though as a lawyer, he might have specialized in one or two branches of law only. All these demand knowledge and skill of such range and variety which perhaps no other profession requires from a practitioner. At the same time the facilities and support services available to him are so limited and archaic which makes his task more difficult and challenging.
The judge has to be an administrator to be able to move things in a culture in which inaction and delay have been entrenched in judicial administration. He has to manage the docket and the ministerial staff intelligently and imaginatively through continuing interaction, motivation, supervision and leadership. He has to keep the bar in good humor with a message of firmness and impartiality. He has to strive for excellence in his job and earn the reputation of being a “good judge”
The judicial function thus is a challenge to everyone, who occupies that office. To be able to respond to such
assignment of dispensing justice efficiently and impartiality, a judge, inter alia, has to improve his knowledge and skill on;
⦁ . The concept and concerns of a fair trial and its operational parameters.
⦁ . The method of fact-finding in judicial proceeding.
⦁ . The art of judgment writing Management of case-flow, information, accounting, records, court staff.
⦁ . Updating knowledge of emerging of litigation brought about by technology.
⦁ . Improving professional skills.
Hence a comprehensive outlook with sound knowledge of the laws becomes indispensable. At the same time, the voluminous procedural law makes it quite tedious as Judges are also human beings. There was always a long felt need for a hand book containing all important provisions required for day-to-day administration of justice. This long felt desire is being accomplished. The sole motive is to refurbish the memory that the Judges in action are made more confident and can save time without having to refer to different books on the relevant subjects. Laws germane to the cases being adjudicated are contained in the present compendium. The motive of compilation is based on the concept that “the Judges must have all the laws on their shelves”. The Manual is divided into eight parts, viz., a guide to the general administration of Subordinate Courts, the working of criminal and civil Courts with an appendix containing pertinent provisions of law. This effort is aimed at arming judicial officers and is not intended to disturb the learning and academic achievement of our officers but to facilitate their working in smoother and faster manner.
It is hoped that this would be a helpful guide not only to the District Judiciary of Sindh but also to all concerned in this field. Justice should rule at all times and everywhere. Everyone who comes along should make this his concern, because it is a common interest for us all.
I acknowledge my gratitude to the Judges’ Library Staff, particularly, Mr. Muhammad Ibrahim, Librarian, who has given me all the assistance required including the material and the secretarial services.
Karachi, 2nd April, 2012
Justice Shabbir Ahmed
Former Judge, Sindh High Court

Part I, Introduction

PART ONE INTRODUCTION

1.1 THE CONSTITUTION
(Constitution of Islamic Republic of Pakistan, 1973)
1.1.1. Introduction
The Constitution of Pakistan is the Supreme Law of the country it provides a framework for the functioning of all organs of the State. It contains 280 Articles and 5 Schedules. The Constitution prescribes the limits for Parliament and State Legislatures, not only in the matter of law making but also in the conduct of their members. For example, Article 68 prohibits any discussion in Parliament and Article 114 prohibits in Provincial Assembly, with respect to the conduct of any Judge of the Supreme Court or of a High Court in discharge of his duties. Correspondingly, Article 69 puts a restriction on Courts from inquiring into proceedings in Parliament. In terms of Article 66 every Member of Parliament and under Article 194, every Member of the Provincial Legislature enjoys freedom of speech and expression in Parliament and the in Provincial Assembly respectively, subject to the provisions of the Constitution and to the rules of business regulating the procedure of the Houses.
1.1.2. Head of State
The Constitution recognizes the President of Pakistan as the head of State (Article 41) and he represent the unity of the Republic and is the Supreme Commander of the Armed Forces (Article 243). The President appoints the Chief Justice of Pakistan and other Judges of the Supreme Court of Pakistan (Article 177 (1)), as well as the Chief Justice and other Judges of the High Courts (Article 193 (1)) on nomination/recommendation of the Judicial Commission and approved/confirmed by the Parliamentary Committee (Article 175-A). The President has the power to grant pardon, reprieve and respite, and to remit, suspend, or commute any sentence passed by any court, tribunal or other authority (Article 45). The President has power to make and promulgate an Ordinance when either of the Houses is not in session (Article 89) for a period of one hundred and twenty days.
1.1.3. Separation of legislative powers
The Constitution provides for distribution of legislative powers between Parliament and Provincial Assembly (Article 142) The Parliament have exclusive power to make laws in respect of any matter in the “Federal Legislative List” (Forth Schedule). The Parliament and Provincial Assemblies have power to make laws with respect to criminal law, criminal procedure and evidence (Clause b of Article 142) The Provincial Assemblies shall have power to make laws with respect of any matter not enumerated in “Federal Legislative List”.
However, a law made by Parliament shall prevail over a law made by a Provincial Legislature (Article 143).The independence of the judiciary is a basic structure of the Constitution (Article 175(3))
1.1.4. Jurisdictional limits
The jurisdiction of a Court is determined by the Constitution and the law framed there under. It is the duty of the Courts to ensure that the executive and legislature do not exceed their constitutional limits. However, it is of utmost importance that the Courts do not exceed their own jurisdiction too. The Courts are under a legal and constitutional duty not to cross their own jurisdictional limits. Exceeding one’s jurisdiction even in the name of justice is as harmful as refusing to exercise it or acting short of it.
1.1.5. The Supreme Court
The Supreme Court consists of a Chief Justice to be known as the “Chief Justice of Pakistan” and so many other judges as determined by the Act of Parliament (Article 176) at present strength of Supreme Court Judges are 17 including the Chief Justice. The Supreme Court has exclusive original jurisdiction in any dispute (a) between two or more Governments. In this clause Governments means Federal and Provincial Government (Articlel 84) by a declaratory judgments. It also has appellate jurisdiction over civil, criminal or other proceedings (Article 185) subject to special leave to appeal in the matters not covered by clause 2 of Article 185, the jurisdiction of the Supreme Court under Article 185 (3) (petition by special leave to appeal) is unique. It also has advisory jurisdiction under Article 186. The law declared by the Supreme Court is binding on all Courts through out Pakistan (Article 189). It is incumbent upon all the executive and judicial authorities to act in aid of the Supreme Court (Article 190).The Supreme Court has concurrent jurisdiction with the High Court in the enforcement of fundamental rights and it entertains public interest litigation under Article 184 (3), if it considers that a question of public importance is involved. The Supreme Court in exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it (Article 187(1)). Subject to the law made by Parliament, it has the power to make any order for the purpose of securing the attendance of any person, discovery or production of any document, or investigation (Article 187) or punishment of any contempt of itself (Article 204).Wherever a question of law pending before the Supreme Court and one or more High Courts is the same or substantially the same, it may withdraw the case pending before the High Court(s) and dispose of all the cases itself. In the interest of justice, it may transfer any case, appeal or other proceedings pending before one High Court to another (Articlel 86A(1)).

The Supreme Court and High Courts are Courts of Record. Court of Record has been defined by Wharton in Law Lexicon “a court of record” is a court the records of which are admitted to be of evidentiary value and are not to be questioned when produced before any court. The power that courts of record enjoy to punish for contempt is a part of their inherent jurisdiction and is essential to enable the courts to administer justice according to law in a regular, orderly and effective manner and to uphold the majesty of law and prevent interference in the due administer of justice”. The Supreme Court has power to review any judgment pronounced or order made by it (Article 188). The Supreme Court may, from time to time make rules regulating the practice and procedure of the Court (Article 191).
1.1.6. The High Courts
Every High Court consists of a Chief Justice and such other Judges as may be determined by the law or, until so determined, as may be fixed by the President (Article 192). At present there are five High Courts in Pakistan.
> High Court of Baluchistan at Quetta with benches at Sibi and Turbat.
> High Court of Islamabad at Islamabad.
> High Court of Peshawar at Peshawar with benches at Abbottabad, Mangora and Dera Ismail Khan.
> High Court of Lahore at Lahore with benches at Bahawalpur, Multan and Rawalpindi.
> High Court of Sindh at Karachi with benches at Hyderabad, Larkana and Sukkur.
The High Court has jurisdiction in all matters concerning judicial review and in respect of preservation and enforcement of any fundamental right conferred by Chapter 1 of Part II of the Constitution. A High Court has power, within its territorial jurisdiction, to issue to any person or authority, including the government, appropriate directions, orders or writs including writs in the nature of habeas corpus,
mandamus, prohibition, quo-warranto and certiorari or any of them for the enforcement of the rights conferred by Part II and for any other purpose. Ordinarily, the right to move a High Court under Article 199 is a personal and individual right. However, this principle has been relaxed in cases of Public Interest Litigation. The existence of an alternative remedy is not an absolute bar to granting relief under Article 199 but it depends upon the facts and circumstances of each individual case. All High Courts have powers of superintendence and control over all Courts within their jurisdiction (Article 203). A High Court may make and issue general rules and prescribe forms for regulating the practice and proceedings of such Courts (Article 202). Any decision of a High Court is binding on all court subordinate to it (Article 201)
1.1.7. Federal Shariat Court
Federal Shariat Court has been established, the Chief Justice and Judges are to be appointed by the President (Article 203-C) with principal seat at Islamabad. The jurisdiction, function and power of such Court is to examine and decide the question whether or not any law or provision of is repugnant to the injunctions of Islam, as laid down in the Holy Qur’an and Sunnah of the Holy Prophet, on the petition by a citizen, the Federal or Provincial Government (Article 203-D). This court has appellate and revisional Jurisdiction over any case decided by any Criminal Court under any law relating to enforcement of Hudood (Article 203-DD)
1.1.8. Islamic provisions
Part IX of the constitution contains the Islamic Provisions, whereby all the existing laws were to be brought in conformity with the Injunctions of Islam as laid down in the Holy Qur’an and Sunnah, and no law to be enacted which is repugnant to Islamic Injunctions (Article 227) Islamic Council has been established (Article 228). Its functions are to:
(a) make recommendations to Parliament and Provincial Assemblies the ways and the means of enabling and encouraging the Muslim to order their life in all respect in accordance with the principles and concept of Islam.
(b) to advice on any question referred to the council as to whether a proposed law is or is not repugnant to injunctions of Islam.
(c) make recommendations as to the measures for bringing the existing laws into conformity with the injunctions of Islam.
(d) compile suitable form for guidance of Parliament and Assemblies, such injunctions of Islam as can be given legislative effect (Article 230)
1.1.9. Rule of law
The Constitution upholds the rule of law and no one is above the law. All persons are equal before the law and have equal protection of the law, no discrimination on the basis of sex. The Constitution also confers powers on the Supreme Court and High Court under Article 204 to punish for contempt of Court.
1.1.10. Fundamental rights
It is the duty of the judiciary to enforce the fundamental rights effectively. Fundamental rights collectively represent the conscience of society. However, fundamental rights guaranteed in chapter I of part II of the Constitution are subject to reasonable restrictions. The laws framed by the Parliament as well as executive actions ostensibly taken under the cover of law are tested according to the provisions of the Constitution.
1.1.11. Directive principles of State policy
Part IV of the Constitution deals with the Directive Principles of State Policy. They are not enforceable by any Court but they are nevertheless fundamental in the governance of the country and steps to be taken;
For Islamic way of life for Muslims;
Promotion of Local Government Institutions;
Parochial and other similar prejudices to be discouraged;
Full participation of women in nation life;
Protection of family etc;
Protection of minorities;
Promotion of social justice and eradication of social evils etc;
Promotion of social and economic well-being of the people.
It shall be the duty of the State to apply these principles in making laws (Article 29 to 40).
1.1.12. Ordinance
The power to enact a law is given to a legislature and a corresponding power is given to the executive to enact an ordinance, albeit the procedure for promulgation of an ordinance is different from enacting a statutory law. The President (Article 89), when both Flouses of Parliament and the Governor (Article 128), when the Provincial Legislature is not in session can promulgate an ordinance, but it shall cease to operate on the expiration of one hundred and twenty days in case an ordinance by President and the ordinance, by Governor, has life of ninety days. The Court should be careful not to enforce an ordinance that has ceased to be law.
1.1.13. Suits by or against the federal or a province.
The Federation may sue or be sued by the name of Pakistan and a Province may sue or be sued by the name of the Province (Article 174) in relation to their respective affairs.

Part II, Statutes

PART TWO STATUTE (General Clauses Act, 1897)
2.1 STATUTE
Part II of this Hand book contains the basic guiding lines in interpreting an Act. The parts of an Act are very material in understanding it. A statute is the formal expression of the will of the legislature in a State. It is a declaration of the law as it exists or it shall be from the time at which such statute is to take effect. It is usually called an Act of legislature. It expresses the collective will of that body. Allen states: “A statute is the highest constitutional formulation of law, the means by which the supreme legislature, after fullest deliberation, expresses its final will”. According to Wilberforce, “Statue law may be properly defined as the will of the nation expressed by the legislature, expounded by Courts of Justice. The legislature, as the representative of the nation, expresses the national will by means of statute”. The text of a statute as published in the official gazette must be taken to be authorized text of the Act. A statute consists of several parts, each of them are material in itself. Broadly, they are; title, long and sort title; title of the chapter; preamble; interpretation clause; headings; marginal notes; sections; proviso, exceptions, and saving clause; explanation; illustration; schedules & rules.
2.2 TITLE
2.2.1. Long title
An Act consist of long title which proceeds the preamble and the said long title is part of the Act itself and admissible as an aid of construction. The policy and purpose of a given measure may be deduced from the long title and the preamble thereof. A long title and preamble is a good guide regarding the object, scope or purpose of the Act. It is none the less a useful guide in resolving the ambiguity.
2.2.2. Short title
According to Lord Thoring, “Every Act of Parliament should have a short title, ending with date and the year in which it was passed”. Modern statute generally contains a Section enacting that the Act may be cited by some short title. The short title is, however, given to the Act solely for the facility of reference. In the words of Lord Monlton; “It is statutory nick name to obviate the necessity of always referring to the Act under its full and descriptive title. Section 28 of General Clauses Act 1897, lays down that an Act or Regulation may be cited by reference to the title or short title (if any) conferred thereon. The short titles in explicit Section of the Act are part of the Act.
2.3.1. Preamble
The preamble of a statute states generally the object of the legislation in passing it. A preamble is the head notes of the statute. It is a key to its understanding. If a word is ambiguous the preamble may be consulted to resolve the doubt. The preamble shows that the statute is a consolidation and not fragmental one. The preamble precedes the word of enactment, and in the nature of recital of the facts operative in the nature of the law given in proceeding to enact. It may also be assumed the via media as conclusive in so far it elucidates the intention of the legislature, but the preamble alone can’t be held to be conclusive of the intent and purpose of the legislation. The object, purpose and intent of the legislation have to be gathered from various provision of the statute itself and not merely from isolated examination of the preamble, which may indicate primary object in view, but may not be refer in detail to contain other object, which are incidental and essential to the working out primary object of the legislation. The preamble is part of the Act, but it is not an operating part thereof, however, not without importance in a statute.
2.4.1. Title of the chapter
The title of the chapter in a statute is not the determining factor regarding the interpretation of the provisions of a Section in the chapter, but title certainly throws considerable light upon the meaning of the Section, and where it is not inconsistent with the Section, one should presume that the title correctly describes the object of the provisions of the chapter. The title of a chapter is an important aid to construction.
2.5.1. Interpretation clause
It is common practice for legislative bodies to define words used in statutes, and place such definition in a general interpretation of statute. These definitions are valuable aid in resolving question of statutory meaning, and they should control except where the language of the Act, examined in the light of relevant and permissible guides to the meaning, indicates that a different meaning is intended. The word ‘means’ can neither be construed liberally nor can be held exhaustive. It is equally common practice to provide an interpretation or definition clause in every statute and normal canon of interpretation of statutes lay down that while interpreting a particular word in a statute, the best guide is the definition of that word in the statute itself. When an expression is not defined in the statute and such expression happens to be one of everyday use, it must be construed in a popular sense, as understood in common parlance, and not in any technical sense.
When a word or phrase is defined as having a particular meaning, it is that meaning which meaning must be given to it, in interpreting a Section of the Act, unless there be anything repugnant in the context. When a legislature defines the language it uses, its definition is binding on Courts and this is so even though the definition does not coincide with ordinary meaning of the word used. It is not for the Court to ignore the statutory definition and proceed to try and extract the true meaning of the expression independent of it.
As pointed out by Craies on statute law, “Where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and prima facie restrictive and where an interpretation clause defines a term to include something, the definition is extensive. The term “include” definition should retain its ordinary meaning, its scope should be widened by enumeration of certain matters which its ordinary meaning may or may not comprise so as to make the definition enumerative and not exhaustive. The word ‘means’ is restrictive and the expression ‘includes’ is expansive. Both the words may, however, but used simul¬taneously, and in such a case, it is restricted meaning which should be assigned.
2.6 SECTION. ITS HEADING. AND MARGINAL NOTES
2.6.1. Heading of the section
The heading prefixed to Section or set of Sections are preamble to those Sections. It is well settled that heading prefixed to Section or entries can’t control the plain words of the provisions, they can’t also be referred to for the purpose of construing the provision when the words used in the provision are not clear and unambiguous, nor can they be used for cutting down the plain meaning of words in the provision. The part of the statute placed under the heading ‘miscellaneous’ indicates that the sections in that part can’t be allocated wholly to a part dealing with specific subject, for the reasons that they can’t fall within a particular part.
2.6.2. Marginal notes
It is now well settled that marginal notes is part of the Section. It is a key to the mind of the legislature affording guidance in understanding their intendment. The marginal note may also give an indication as to exactly what was the mischief that was intended to be remedied. A marginal note is an abstract of the clause intended to catch the eye, and furnishes a clue to the meaning and the purpose of the Section.
2.6.3. Section
Section 3 of General Clauses Act (Clause 50) constitutes the principal or enacting part of a statute. Every section of a statute is substantive enactment in itself. One section may contain more than one enactment. Each section in each Act must for its true meaning and effect, depend on its own language, context and setting. Every section must be considered as a whole and self-contained, with the inclusion of saving clauses and provisions. It is elementary rule that construction of a section is to be made of all the parts together and that must, therefore, be read as part of an integral whole and as being interdependent, each portion throwing light, if needed be, on the rest.
2.6.4. Sub-section
All sub-section Section 3 of General Clauses Act (Clause 54) of a section must be read as a ‘part of an integral whole’ interdependent, each other. Repugnancy between them must be avoided and they must be reconciled to the extent possible.
2.6.5. Proviso to section
A proviso is something engrafted on a preceding enactment. The proviso follows the enacting part of a section and in a way independent of it. Normally it does not enlarge the section and in most cases, it cuts down or makes an exception from the ambit of the main provision. The correct way to understand a proviso is to read it in the context and in isolation. The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. The proper way to regard a proviso is a limitation upon the effect of the principal enactment. A proviso generally modifies the general principles contained in a general rule. It can’t be permitted to defeat the basic intent expressed in the substantive provisions.
2.6.6. Exception
An exception exempts somethincpwhich would otherwise fall within the purview of the general words of the statute. It is familiar principle of statutory construction that where you find in the same section exceptions from operative parts of the section, it may not be assumed, unless it otherwise appears from the language employed, that these exception were necessary, as otherwise the subject matter of the exceptions would have come within the operative provision of the section. Where the legislature desires to enact an exception to any provision, it normally does so by way of proviso or an exception to the section itself. Welberforce distinguishes it from proviso, he says, in his statute law; “The substantial distinction between a proviso and an exception is that the former follows an enacting clause, and qualifies it in certain specified application. Halsbury considers an exception as a part of the enacting part of the section, while, a proviso follows the enacting part of it and in a way independent.
2.6.7. Explanation
The purpose of explanation is often to explain some concept or expression or phrase occurring in the main provision and it is not un-common for the legislature to accord an extended meaning by inserting an appropriate explanation. But it is not substantive provision. Explanations are keys to the section to which it is appended. An explanation does not enlarge the scope of the original section that is supposed to explain. The role of the explanation is to remove any ambiguity in the main section or to take explicit that may otherwise ambiguous. Its basic function is to elucidate the main enactment. The object of an explanation is to a statutory provision are:-
To explain the meaning and intendment of the Act
itself;
Where there is any obscurity or vagueness in the main enactment, to clarify the same as to make it consistence with dominant object which it seems to observe;
To provide an additional support to the dominant of the
Act in order to make it meaningful and purposeful;
An explanation can’t in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of explanation in order to suppress the mischief and advance the object of the Act, it can help or assist the Court in interpreting the true purport and intendment of the enactment; and
It can’t, however, take away a statutory right with which any person under a statute has been clothed or set at naught, the working of an Act by becoming a hindrance in the interpretation of the same.
2.6.8. Illustrations
An illustration is a statutory provision merely illustrates a principle and ex-hypothesis it can’t be exhaustive. It is illustrative of the true scope and ambit of the section. It must be read subject to the relevant provision in the section itself. Illustrations merely illustrate a principle and what the Court should try and do is to deduce the principle which underlines the illustration. An illustration is a simple statement of the fact to which the section itself has got to be applied. It only controls the language of a section, but they certainly afford a guide to its construction.
2.7 LEGAL FICTION AND DEEMING PROVISIONS
2.7.1. Legal fiction
In case of, “legal fiction” Court believes something to exist, which in reality does not exist. It is nothing but the presumption of existence of the state of affairs which in actuality is non-existence. The effect of such legal fiction is that a position, which otherwise would not obtain, is deemed to obtain under the circumstances. Where the legislature says that ‘something should be deemed to have been done’ which in truth has not been done, it creates a legal fiction, and in that case, the Court is entitled and bound to ascertain for what purpose and between what given to the statutory fiction and it should be carried to its logical conclusion.
In construing the scope of legal fiction, it would be proper and even necessary to assume all those facts on which alone a legal fiction can operate. In the words of Lord Asquith, “If you are bidden to treat imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have followed from accompanied it. The statute say that you must imagine a certain state of affairs, it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs”.
2.7.2. Deeming provision
The word ‘deemed’ is used a great deal in modern legislation. Sometimes, it is used to impose for the purpose of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might be otherwise be uncertain or to give a constructive description that includes what is obvious, what is uncertain and what is in ordinary sense, impossible. However the mere use of the word ‘deemed’ is not itself sufficient to setup a legal fiction. Legal fiction is treating something not done as done and this requires legislative authority. Court can’t setup legal fiction without such authority.
2.8 REPEAL AND SAVING CLAUSE
2.8.1. Repeal
The term “repeal” is synonymous with abolish, rescind, and annul. Ordinarily, the term “repeal” as applied to legislation signifies an abrogation of one statute by another. Repeal of law means its complete abrogation by the enactment of a subsequent statute, whereas, the “amendment” of a statute means an alteration in the law already existing. Express repeal means repeal effected by specific declaration in a new statute, whereas, an implied repeal means repeal effected by irreconcilable conflict between old and new law- also termed repeal by implication.
2.8.2. Effect of repeal
Where a law is repealed by central statute, or deemed to have been repealed by, under, or by virtue of any such law, unless a different intention appears, the repeal shall not—
a) revive anything not in force or existing at the time at which the repeal takes effect; or
b) affect the previous operation of any enactment so repealed or anything duly done or suffered there under; or
c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or
e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid.
and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed (Section 6)
2.8.3. Saving clause
Saving clause reserves something which would otherwise not included in the words of enacting part. Saving clause is generally inserted where one statue is repealed and re¬enacted by another, the scope and purport of both remaining the same. Their effect is that the repeated statute remains in force as if the second statute has not been passed. Saving means that it save all the rights that the party previously had, not, that it creates any new rights in his favor. A saving can only preserve things which were in existence at the time of its enactment and therefore can’t affect. A saving, as its name implies, is a clause which is inserted in the repealing statute in order to protect or save a person as regard his rights which he may have acquired under the then existing law.
2.9 Schedule
2.9.1. Schedule
The schedule (Clause 48) of section 3 of General Clauses Act is as much a part of the statute, and is as much as enactment or any other parts. It must be read together with the Act for all purpose of construction.
Halsbury's Laws of England speaks about schedule:
“To simplify the presentation of statute it is the practice for their subject-matter to be divided where appropriate between sections and schedules, the former setting out matters of principles, and introducing the latter, and the latter containing all matters of details. This is purely a matter of arrangement, and a schedule is as much a part of the statute and as much as an enactment as is the section by which it is introduced”
The schedules are inserted at the end of the Act; serve a useful purpose, when it is intended to lay down elaborate provisions which if kept n the man body of the Act, may interrupt the continuity of the Act.
Following are the cases wherein schedules may be resorted to for achieving the purpose;
■ When an scheme for the working of an institution or body is to be described in details;
■ Where a table of fees, taxes, or the like is so incorporated;
■ When detailed procedure and time limit of the proceedings are to be prescribed;
■ When detailed provision regarding mathematical calculations are to be made, for example the mode of assessment of compensation for the property to be acquired;
■ When a long list of enactments to be repealed or amended or otherwise affected, is to be given;
■ When form of application, notices, licenses, registers, records and the like are to be prescribed.
It is part of the Act and possesses the same legal force as the body of the Act.
2.10.1. Rules
Rules (Clause 47) of section 3 of General Clauses Act are subordinate legislation, made under the delegated authority given in the Act. It must be consistence with the Act andconstrued harmoniously with the provisions contained in it. It is effective provided it is framed in the manner prescribed under the law. In the garb of corrigendum a rule can’t be altered and/or changed. The dictionary meaning of the word ‘corrigendum’ means things to be corrected.

Part III, Code of Civil Procedure, 1908

CIVIL
(Code of Civil Procedure, 1908)
Part III of this Hand-Book deals with the working of Civil Courts in general, of course with specific reference to the laws applicable to District Courts. A brief introduction is given in Chapter 3.1 INTRODUCTION about the role of Civil Courts in disposing a civil case. This is followed by Chapter 3.2 PRELIMINARY MATTERS indicating the powers of Civil Courts, their territorial and pecuniary jurisdictions and the necessary ingredients of civil litigation.
Chapter 3.3 PARTIES TO THE SUIT relates to the parties in a suit, their agents and special suits as provided under the CPC. The next Chapter 3.4 PLAINT in this Part talks about when the plaint can be rejected or returned. When a suit is taken up for adjudication, the immediate necessary steps to be followed viz; issuance of notice, the mode of service etc. are dealt with in Chapter 3.5 THE GENESIS OF ADJUDICATION.
The scope of pleadings and what they should contain are discussed in Chapter 3.6 PLEADINGS. The succeeding duties on the part of the Court at the appearance or absence of the parties having knowledge of the pendency of the case are detailed for the day-to-day working of the Court is the subject matter of Chapter 3.7 THE FIRSTHEARING. The question of sifting the chaff from the grain i.e. to collect the evidence on the differing points and the powers of the Judge forms the subject of Chapter 3.8 HEARING OF THE SUIT.
Various types of judgments to be written and the dos and don’ts in scripting them are given at Chapter 3.9 JUDGMENT followed by almost the same substance concerning the Decrees could be found in Chapter 3.10
DECREE. The Sindh Civil Court Rules necessarily to be observed are also pointed out.
A major part of this Section deals with the aspect in which the ever demanding concentration lies in adjudicating execution of Decrees, which can be scanned with a bird’s eye-view at Chapter 3.11 EXECUTION OF DECREES AND ORDERS. This ensures a better guide for the Civil Courts. The Court’s power to:
a) Various warrant of arrest and attach before judgment on failure and furnish surroundings;
b) Grant of temporary judgments;
c) Appointments of receiver are given in Chapter 3.12 Supplement Proceedings.
Appeals, the manner of their hearing and adjudicating with reference to the Rules are culled out for Chapter 3.12 APPEAL. The Civil Part of the Hand-Book concludes with the Rules governing contingencies that crop up like death, marriage, insolvency, assignment and compromise etc. in Chapter 3.13 MISCELLANEOUS.
It is hoped that this Part will be useful in performing the duties of a Judge on Civil Side in letter and spirit of the code.
Abbreviations:
1. CPC: Code of Civil Procedure
2. Where Orders, Rules and Sections are mentioned, they refer to the CPC, unless and until the name of the Act is mentioned.
3.1 INTRODUCTION
3.1.1. Civil Courts
Courts have jurisdiction to try all suits of a civil nature unless expressly barred by law (Section 9). The Court of the District Judge is the principal civil Court of original jurisdiction (Clause 15) of Section 3 of General Clauses Act. The original

jurisdiction of the court of District Judge in civil suits and proceedings is without limit of the value thereof excepting in the Karachi Districts where original jurisdiction in civil suits and proceedings of value not exceeding fifteen million. The District Judge is assisted by Additional District Judges of co­ordinate jurisdiction working under the administrative control of the District Judge. The Senior Civil Judge enjoys unlimited pecuniary jurisdiction in entire Province except Karachi, whereas, the pecuniary jurisdiction of Civil Judge in civil matters of value not exceeding fifty thousand rupees. High Court is exercising the jurisdiction of principal civil court of original jurisdiction in respect of Karachi Districts in civil suits and proceedings of value exceeding fifteen million.
3.1.2. Adversarial system
A civil dispute between two or more parties is to be decided on the preponderance of evidence. Before trial, it is important that the issues to be adjudicated upon are clearly identified and articulated. The party that asserts bears the onus of proof. When a party has adduced evidence to prove his case, the other party has the right to adduce evidence to rebut. The onus of proof is neither fixed nor stationary; it shifts during the course of trial. The Court, therefore, has to be very careful while ruling whether the party concerned has rightly discharged the onus. Where an issue is contested, it has to be adjudicated upon in the light of admissible evidence.
3.1.3. The role of the judge
“The part of the Judge at a trial of a civil action is to listen to the evidence, asking questions to a witness only when it is necessary to clear up any point that has been overlooked or left obscure, to see that the advocates behave themselves seemly and to keep to the rules laid down by law, to exclude irrelevance and discourage repetition, to make sure by wise intervention that he follows the points that the advocates are
making and can assess their worth; and at the end to make up his mind where the truth lies.” Jones V National Coal Board [1957] 2 All E.R. 155
3.1.4. Civil procedure code
The CPC regulates the procedure of the civil Courts. The High Courts have been empowered to alter or add to the rules and orders, provided any new rules or alternations are not inconsistent with the main body of the CPC. However, such rules are subject to the approval of the Provincial Government. After the receipt of approval, the rules have to be published. Apart from the general powers conferred upon the High Courts, matters upon which the High Courts can frame rules are given in Section 128 of the CPC. Civil Courts are under an obligation to adhere to the rules in the First Schedule as strictly as to the sections of the Act.
The First Schedule contains the Rules and Orders. Not all the Orders are relevant to the district judiciary. Amendments or alterations made in the rules by a particular High Court are applicable only within the jurisdiction of the said High Court.
3.1.5. Overview of a civil case
The stages of a civil case are:
1. Filing the plaint, its scrutiny, and admission.
2. Service on parties and completion of pleadings.
3. Issues Recording of evidence.
4. Hearing of arguments.
5. Judgment and decree.
6. Execution of the decree.

3.2.1. Jurisdiction
A Civil Court entertains, tries and adjudicates suits of a civil nature excepting suits of which cognizance is expressly or impliedly barred by any Act or law for the time being in force (Section 9).
To entertain and try a matter of a civil nature, the Court shall prima-facie ensure that:
a) The Court is not barred from taking cognizance of the matter by any Act or law for the time being in force;
b) The Court has territorial jurisdiction as per the provisions contained in the Sindh Civil Court Ordinance 1962;
c) The Court has pecuniary jurisdiction.
Thus, the jurisdiction may have to be considered with reference to place, value and the nature of the subject matter.
3.2.2. Pecuniary jurisdiction
Pecuniary jurisdiction (Section 6) of the district judge in the Province of Sindh, except Karachi in original suits is as follows;
District Judges have jurisdiction in civil suits or proceeding of unlimited value, except Karachi Districts which have jurisdiction not exceeding fifteen million.
Senior Civil Judges have unlimited jurisdiction in value excepting Karachi Districts which have jurisdiction not exceeding fifteen million.
Civil Judges have jurisdiction in civil suits of value not exceeding fifty thousand.
3.2.3. Territorial jurisdiction
The Sindh High Court is exercising the jurisdiction of principal civil court of original civil jurisdiction of Karachi Districts in suits and proceeding of value exceeding fifteen million.
The territorial jurisdiction of District Judge is over the civil district of his posting, whereas, the territorial jurisdiction of senior Civil Judge and the civil Judge is to the extent of the jurisdiction assigned by District Judge to them or in absence of such assignment up to the entire district of their posting.
3.2.4. Venue of the suit
All the Judges are empowered to entertain, try and decide civil suits subject to the pecuniary jurisdiction as stated above in respect of any matter of which the cause of action or part thereof has arisen in or where the defendant reside.
The guiding principles in respect of cause of action for territorial jurisdiction are enshrined in Section 15 to 20 of the CPC. A brief table of the venue of suit depending on its nature is given as attachment in the end of this part.
3.2.5. Suit barred (Res judicata)
Section 11 bars the Courts from trying a suit or issue in which the matter directly and substantially in issue in a former suit between the same parties in Court to try such subsequently suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court. This Section has six explanations.
Explanation I, explains “former suit” a suit which has been decided prior to the suit in question irrespective of prior institution or subsequent.
Explanation II, competence of Court is not dependent on right of appeal.
Explanation III, the matter must in former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.
Explanation IV, any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been directly and substantially in issue in such suit.
Explanation V, any relief claimed in the plaint, which is not expressly granted by the decree, shall be deemed to have been refused.
Explanation VI, where persons litigate bona fide in respect of public or private right claimed in common for themselves and others, all persons interested in such right shall, be deemed to claim under the person so litigating.
3.2.6. Bar to further suit
Section 12 bars further suit, where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which the Code applies. However, the validity of a judgment, decree or order may be challenged on the plea of fraud, misrepresentation or want of Jurisdiction by petition to the Court which passed the final judgment, decree or order and not by a separate suit by an aggrieved person.
3.2.7. Stay of the suit
Section 10 of C.P.C. restrains the court not to proceed with trail of a suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, where such suit is pending in the same Court or any Court in Pakistan having jurisdiction to grant the relief claimed.
The District Judge may transfer cases from one Court to other Court within the same district. The High Court may transfer the cases from one District Court to another District Court. Where, the courts are subordinate to different High Court, the application to be made to the High Court within the local limits of whose jurisdiction the transferor Court situate as contained in Section 22 to 24 of the CPC.
3.2.9. Inherent powers
Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the end of justice or to prevent abuse of the process of the Court (Section 151).
3.2.10. Power of review
The Court that has passed a decree or order may review it on the application of any person aggrieved provided:-
⦁ Such decree or order is appeal able, but no appeal has been preferred.
⦁ Such decree or order against which no appeal is provided under the code.
And the Court may make such order as it think fit (Section 114). The grounds for review are:-
I. On discovery of important matter or evidence which, after the exercise of due diligence, was not within the knowledge or could not be produced by him at the time when decree was passed or order was made; or
II. On account of some mistake or error apparent on the face of record; or
3.2.11. Issues
According to Order XIV rule 1, issues in a case are of two kinds:-
1. Issues of Fact
2. Issues of Law
If an issue in respect of maintainability of a suit is made out, more particularly an issue of limitation, then the Court should try to adjudicate on such an issue as a preliminary issue before proceeding further in the suit.
3.2.12. Frame of suit
Order II rule 1 provides that every suit be framed in such a manner, as far as possible, so as to afford a ground for a final decision upon the subject matter in dispute and to prevent further litigation.
Order II rule 2(1) provides that every suit should include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action. However the plaintiff is entitled to relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. But when the plaintiff omits to sue in respect of or intentionally relinquishes any portion of his claim, then afterwards he would not be allowed to sue in respect of the portion so omitted or relinquished (Order II rule 2(2)). Order II rule 2(3) further provides that when a person is entitled to several relieves in respect of the same cause of action, then he can either choose to file separate suits claiming each relief or combine all the relieves in the same suit. But if he omits to sue for all such relieves he shall not be able to sue for any relief so omitted except with the permission of the Court.
Order II rule 3 allows joinder of various causes of action against the same defendant or the same defendants jointly and any plaintiffs) having causes of action in which they are jointly interested against the same defendant or the same defendants may unite such causes of action in the same suit. However, where different causes of action are joined, then the value of the suit would be the total sum of the different causes of action. Order II rule 4 provides that only the following claims can be joined together in respect of immoveable property:
1. Claims for mesne profit or arrears of rent in respect of the property claimed or any part thereof; or
2. Claims for damages for breach of any contract under which the property or any part thereof is held; and
3. Claims in which the relief sought is based on the same cause of action.
For joining any other claims in respect of any immoveable property, leave of the Court is required.
Order II rule 5 provides that claims against an executor or administrator in his official capacity cannot be combined with the claim against him in a personal capacity except those that are alleged to have arisen with reference to the estate in respect of which the plaintiff or defendant sues or is sued as executor, administrator or heir or are such as he was entitled to or liable for jointly with the deceased person whom he represents. Order II rule 6 provides that in the interest of justice and to avoid delay, inconvenience or embarrass a trial, the Court can order a separate trial in respect of different causes of action or may make any such other order in the interest of justice. All objections on grounds of mis-joinder of issues should be taken at the earliest opportunity and if it is not done, then this objection is deemed to have been waived (Order II rule 7).
All persons may be joined in one suit as plaintiffs if the following two conditions are satisfied (Order I rule 1):
1. The right to relief existing in each plaintiff arises out of the same act or transaction; and
2. The case is of such a character that, if such persons brought separate suits,
Common questions of law or fact would arise. All persons may be joined in one suit as defendants if the following two conditions are satisfied (Order I rule 3):
1. The right to relief against them arises out of the same act or transaction; and
2. The case is of such a character that, if separate suits were brought against such persons, a common question of fact or law would arise.
3.3.1. Necessary and proper parties
A necessary party is one, whose presence is indispensable to the adjudication of a suit, against whom a relief is sought and without whom no effective order can be passed. A proper party is one in whose absence an effective order can be passed but whose presence is necessary for a complete and final decision on the question involved in the proceeding. In other words, in the absence of a necessary party no decree can be passed, while in the absence of a proper party a decree can be passed so far as it relates to the parties before the Court; his presence however, enables the Court to adjudicate “effectually and completely”.
3.3.2. Non-joinder and mis-joinder of parties
Where a person, who is a necessary or a proper party to a suit, has not been joined as a party, it is a case of non­joinder. On the other hand, if two or more persons are joined as plaintiffs or defendants in one suit in contravention of
Order I rule 1 and 3 respectively and they are neither necessary nor proper parties, it is a case of mis-joinder of parties. The general rule is that a suit cannot be dismissed only on the ground of non-joinder or mis-joinder of parties. Nor a decree passed by a competent Court on merits will be set aside on the ground of non-joinder, mis-joinder of parties or mis-description of a defendant.
However this rule does not apply in case of non-joinder of a necessary party. If a person likely to be affected by the decree is not joined as a party in a suit or appeal, the suit or appeal is liable to be dismissed on that ground alone.
3.3.3. Addition or substitution of plaintiffs
After the filing of a suit, if the plaintiff discovers that he cannot get the relief he seeks without joining some other person also as a plaintiff or where it is found that some other person and not the original plaintiff is entitled to the relief as prayed for, an application for addition or substitution of the plaintiff can be made if the mistake is bona fide (Order I rule 10(1)).
3.3.4. Striking out or adding of parties
The Court may add any person as a party to the suit on either of the two grounds (Order I rule 10(2)):
1. He ought to have been joined as a plaintiff or a defendant and is not so joined; or
2. Without his presence the question involved in the suit cannot be completely adjudicated.
The power to strike out or add any party to the suit may be exercised by a Court at any stage of the proceedings. It may be exercised either upon an application by the parties or even suo-moto. Where a defendant is added, the plaint shall be amended and the summons of the amended plaint must be served upon the new defendant.
Generally any appearance, application or act in or to any Court may be made or done:
1. By a party in person; or
2. By his recognized agent; or
3. By a pleader appearing, applying or acting on his behalf.
However, the Court can direct any party to appear in person.
3.3.6. Recognized agents
The following persons are agents recognized by the CPC (Order III rule 2):
1. Persons holding a power of attorney; or
2. Persons carrying on trade or business for parties not residing within the territorial jurisdiction provided'that there is no other agent; and
3. Persons specifically appointed by the Government to prosecute or defend on behalf of foreign rulers (Section 85).
3.3.7. Appointment of pleader
A pleader can be appointed by a document in writing, known as a Vakalatnama (Power of Attorney), signed by the party or by his recognized agent or by some other person duly authorized by him. Every such appointment shall be filed in the Court and deemed to be in force until the determination of all proceedings in the suit; or determination by the client or the pleader or in case the client or pleader dies; or the duration for which he is engaged is over. A process served on the recognized agent or a pleader of the party or left at the office or residence of the pleader will be considered as valid and proper service on the party.
In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be:
a) In the case of a suit by or against the Federal Government ‘Pakistan’, and
b) In the case of a suit by or against the Provincial Government ‘the Province’.
In ordinary suits, the plaintiff need not give notice to the defendant before filing the suit. Such notice, however, is a condition precedent before filing a suit against the Government or against a public servant in respect of any act purportedly done by such public officer in his official capacity, except where an urgent or immediate relief is required. Where suit has been filed, without notice in writing the court will not grant cost to the plaintiff and the court to grant not less than three month time to submit written statement (Section 80).
3.3.9. Suit involving question as to the interpretation of constitutional law
Order XXVII-A enjoins upon court that in a suit in which it appears to it that any substantial question as to the interpretation of constitutional law is involved, the Court to give notice to Attorney General of Pakistan if the question of law concerns the Federal Government and to Advocate General if the question concerns a provincial Government. The Government concerned may be joined as party in the suit under this provision.
3.3.10. Suits in the case of a soldier, sailor or airman
Order XXVIII prescribes the procedure for filing or defending a suit in the case of a soldier, sailor or airman. Rule 1 of this Order provides that where any officer, soldier, sailor or
airman is a party to the suit and if he is in active service in such capacity and cannot obtain leave for the purpose of prosecuting or defending the suit in person, he may authorize any person to sue or defend on his behalf. The person so authorized may himself prosecute or defend the suit or appoint a pleader.
3.3.11. Suits by or against a corporation
Order XXIX provides that in suits by or against a corporation, any pleading may be signed and verified on behalf of the corporation by
1. The secretary; or
2. Any director; or
3. Other principal officer of the corporation able to depose to the facts of the case.
The Court may at any stage of the suit require the personal appearance of any of the above named officers who may be able to answer material question relating to the suit.
3.3.12. Suits by or against trustees
Order XXXI deals with suits by or against trustees, executors and administrators. In all suits between persons beneficially interested in the property vested in a trust, executor or administrator and a third party concerning such property, it is not necessary to join beneficiaries as parties. They shall be represented by the trustee, executor or administrator. The Court has, however, power to make them, or any of them, parties to the suit. All except the following shall be made parties:
1. The executors who have not proved their testator’s will; and
2. Trustees, executors or administrators living outside Pakistan.
3.3.13. Suits relating to minors or persons of unsound mind
Order XXXII prescribes the procedure in suits to which minors or persons of unsound mind are parties. According to rule 1 every suit by a minor shall be instituted in his name by his next friend. If such a suit is filed by or on behalf of a minor without a next friend, on an application being made by the defendant, the plaint will be taken off the file. Any order made in a suit or an application made without the minor being represented by a next friend or guardian does not bind him and such order is liable to be discharged.
3.3.14. Suits by paupers
Order XXXIII deals with suits by paupers. The provisions of this order are intended to enable paupers to institute and prosecute suits without payment of any Court Fee.
1. A person is a “pauper” when he is not possessed of sufficient means to enable him to pay the fee prescribed bylaw on the plaint in such suit; or
2. Where no such fee is prescribed, when he is not even holding property worth one thousand rupees.
In both cases, property exempt from attachment in execution of a decree and the subject matter of the suit should be excluded. The Court- may if it think fit, order that he be examined by a commission in the manner in which the examination of a witness. The Court may make an initial inquiry into the means of an applicant.
3.3.15. Mortgages of immovable property
Order XXXIV prescribes the procedure with regard to the suits for redemption, foreclosure and for sale relating to mortgages of immovable property. All persons having an interest either in the mortgage security or in the right of redemption shall be joined as parties to any such suit relating
to a mortgage. This provision is however, subject to other provisions of the CPC, for example, Order I rule 9 lies down that no suit shall be defeated by the reason of non-joinder of parties.
3.4 PLEADINGS
3.4.1. Pleadings generally
Pleadings means, Plaint or Written Statement. Order VI rule 2 requires that a pleading must contain material fact on which the party pleading relies for his claim or defence but not the evidence relied upon nor the law. It shall be divided into paragraphs, numbered consecutively. Dates, sums and numbers are to be expressed in figures. The purpose of the pleading is to let the other party know what case he has to meet.
3.4.2. Requirements of a pleading
Generally the pleading requires that in case where a party pleading any misrepresentation, fraud, breach of trust, willful default, undue influence the particulars of such act to be given in details (rule 4) The malice, fraudulent intention, knowledge or other condition of mind to be sufficiently alleged (rule 10). It has to be signed and verified (rule 14 & 15).
3.4.3. Amendment of pleadings
The Court may at any stage of the proceeding allow either party to alter or amend his pleading as may be necessary for the purpose of determining the real question in controversy (rule 17) but such amendment should not be inconsistent with previous pleadings (rule 7). Unnecessary or scandalous matter or the fact which may trend prejudice, embarrass or delay the fair trial of the suit to be struck out or amended (rule 16).
When the time fixed by Court in order, in absence of time frame in order, the party seeking amendment shall amend the pleading within fourteen days from the order, unless time is extend the party shall not be allowed to amend (rule 18)
3.5 PLAINT
3.5.1. Plaint
Every suit shall be instituted by presenting a plaint to the Court or to such officer appointed in this behalf (Order IV rule 1). A plaint is a written document tendered to the Court in which the plaintiff sets out his cause of action, seeks judgment and relief from the Court. Such plaint shall comply with the provisions of Order VI and VII, so for as they are applicable.
The word “presenting” implies delivery to the Court or to its officer either in person or by a recognized agent or pleader of a party. The sending of a plaint by post is not a proper presentation, rule 84 of Sindh Civil Court Rules bars presentation by post.
A suit in forma pauperis stands instituted on filing of an application under Order XXXIII rule 3. During the pendency of such an application, interim applications that may be filed in that suit are maintainable. The Sindh Civil Court Rules envisage three stages, institution (presentation) of plaint, its admission after examination by the officer appointed and then registration in the register of suits
Once the plaint is registered, the Court will fix a date and issue summons to the defendant for his appearance in person or through a pleader for settlement of issues. If thereafter the plaintiff fails to appear, dismissal of the suit may be justified.

3.5.2. Drafting of plaint
Order VII deals with how a plaint should be drafted and what particulars it should contain. The title of a suit can never be treated as a part of the plaint because it is not covered by the verification at the foot of the plaint. The object of Order VII rule 1 is to present a full picture with sufficient details of the cause of action so as to make the opposite party understand the case. It is to define and limit the issues to be tried. The plaintiff has to state specifically when the cause of action for the suit arose, for the purpose of enabling the Court or the defendant to ascertain from the plaint whether there is a cause of action or not and whether it is not barred by limitation. All the facts showing that the Court has jurisdiction should be set out in the plaint, and if any special jurisdiction vested in the Court by law is invoked, all the facts, which call for the exercise of that jurisdiction, should be set out.
When the jurisdiction of the Court to try a suit is disputed, the Court must decide the same as a preliminary issue. The valuation of a suit for the purposes of jurisdiction is necessary in order to ascertain whether the suit is within the pecuniary jurisdiction of the Court. In a suit for the recovery of money, the plaint should, as a rule, state the amount claimed precisely.
In a suit pertaining to immovable property, the plaint should contain a description of the immovable property sufficient to identify it, otherwise the decree, if passed, will be incapable of execution (Order VII rule 3). The provisions of Order VII rule 4 provide that in case the plaintiff is claiming as a representative of someone, all the particulars of such capacity, the existing interest and the steps that he has taken prior to filing the suit should be clearly pleaded. If a decree was passed without such compliance, it would not bind the estate or the persons represented by the plaintiff in the suit. Order VII rule 5 makes it necessary for the plaintiff to show the interest of the defendant in the subject matter of the suit
and his liability to meet the plaintiff’s demand. Order VII rule 6 provides that where, but for some ground of exemption from the law of limitation, a suit would prima facie be barred by limitation; it is necessary for the plaintiff to show in the plaint such grounds of exemption. Order VII rule 7 demands that the relief be specifically stated.
3.5.3. Return of plaint
The Court can return the plaint at any stage of the suit if it is instituted in the wrong Court. On its return, the plaint may be presented to the Court having jurisdiction in the matter. The Judge returning the plaint shall endorse thereon the date of its presentation and the return, the name of the party presenting it and a brief statement of the reason for doing so (Order VII rule 10). This Rule applies only when the Court has no jurisdiction to try the suit either territorial, pecuniary or with regard to nature of the suit, the Court is bound to return the plaint to be presented to the proper Court. But where the Court has no pecuniary or territorial jurisdiction and without returning the plaint, it passes a decree, no objection to the validity of the decree will be allowed except under the circumstances mentioned in Section 21 of the Code.
3.5.4. Rejection of plaint
The Court is under a duty, before issuing any summons, to examine the plaint and it shall reject the plaint if:
1. It does not disclose a cause of action (Order VII rule 11(a)).
2. Where the relief claimed is under-valued and not corrected after the Court has directed revaluation (Order VII rule 11(b)).
3. The plaintiff has failed to furnish the Court with sufficient stamp paper within the time allowed (Order VII rule 11(e)).
11(d)).
The effect of a dismissal as distinguished from a rejection is that, in the latter case, the plaintiff is not precluded from filing a fresh plaint in respect of the same cause of action if he so desires (Order VII rule 13). The question of maintainability or a defect in a plaint has to be examined with reference to the date on which the suit was filed. The grounds for rejection must be based upon defects that are on the face of the plaint alone; the contents of a written statement are not to be relied upon for this purpose. Before rejecting the plaint, the Judge must record an order to that effect with reasons for such an order.
3.5.5. Address for service & effect of non-compliance
Every plaint and the written statement shall be accompanied by a proceeding giving an address at which the service of notice, summons, or other process to be effected on parties (rule19 of Order VII & rule 11 of Order VIII) The address filed under these rules to be entered in the register of suits maintained under Order IV rule 2. In case the plaintiff’s failure his suit may be dismissed (rule 21 of Order VII), if the defendant fails then his defence to be struck off (rule 12 of Order VIII).
3.5.6. List of legal representatives of the parties to be filed
In every suit of the nature referred in rule 3 of Order XXII, the plaint to be accompanied by a statement giving:
⦁ the name and address of the person who, in the event of death of the plaintiff, may be made a party as his legal representatives;
⦁ the name and address of the person who, in the event of the death of the plaintiff, shall intimate such fact to the Court, furnish with the name,
particulars and addresses of legal represent- -atives of the plaintiff and make an application for them to be made party (rule 26 Order VII)
Likewise in suit of nature referred to in rule 4 of Order XXII, the written statement to be accompanied by a statement as mentioned in preceding clauses (a) and (b) in case of death of defendant (rule 13 of Order VIII)
3.6 THE GENESIS OF ADJUDICATION
3.6.1. Service of process
When a suit is instituted, a summons should be issued together with a copy of the plaint to the defendant to appear and answer the claim. This ‘process’ must be served on the defendant(s). Service does not necessarily have to be personal, that is, on the party himself. Service may be made on a recognized agent or pleader. If the defendant attends the Court when the plaint is filed and admits the claim, no summons shall be issued.
A Judge must monitor and supervise his Court staff and the process-serving agency to ensure that they comply with the requirements of law. Mishandling of service of process, whether deliberate or accidental, must not be allowed. Effective control of the process-serving agency is an element of Court management. For effective service Order V rule 10-A provides for service through registered post, acknowledgement due. If the A.D. card is received back or the envelope is received back with a report of refusal, the Court may treat that it has been properly served. If there are several defendants, each of them is to be served personally. In case of business establishment service on any of the manager or agent is proper service (Order V rule 13). Where defendant is absent service may be made on any of the adult male member of his family, but not on a servant. (Order V
rule 15). For personal service, signature of the person receiving the summons is to be obtained.
If the defendant refuses or is not available, himself or through his agent, then affixing on the outer door at the address is prescribed. Every such service must be endorsed about the manner. The Court may examine the serving officer before treating it as proper service. (Order V rule 16 to 19).
3.6.2. Substituted service
Where a party is not found at the address given for service and is avoiding service, the procedure under Order V rule 20 should be followed. The substituted modes of service of summons by:
(a) affixing the summons on a conspicuous part of a house in which the defendant is last known to have been actually and voluntarily resided, carried on business or personal work for gain;
(b) any electronic device of communication which may include telegram, telephone, phonogram, telex, fax, radio and television; or
(c) Urgent mail service or public courier services; or
(d) beat of drum in the locality where the defendant reside: or
(e) Publication in press; or
(f) Any other manner or mode as court think fit. The following ABC certified daily newspapers are enlisted for the purpose of court notices by the High Court:-
English Urdu Sindhi
1. Dawn I.Jung I.Kawish
2. The News 2. Express 2.lbrat
3. Business Recorder 3. Ummat
Summons to persons living outside the Court limits may be sent by post. It could also be sent to the Court, in
whose jurisdiction here sides, for effecting service, if a party is in jail, the summons may be sent by above all means apart from through the Jail Superintendent. If a defendant is a government servant, he can be served through his employer. Defence personnel are to be served through their Commanding Officer. To affect service on a defendant of a rank, which in the opinion of Court entitles him to such consideration, instead of summons, a letter may be written as provided in Order V rule 30. The letter shall contain all the details required to be stated in a summons.
3.6.3. Documents relied upon in plaint
Where a plaintiff sues upon a document in his possession or power, he shall produce it in Court when the plaint is presented, and shall at the same time deliver the document or a copy thereof to be filed with the plaint (Order VII rule 14(1)).
Where he relies upon other documents as evidence in support of his claim, he shall enter such documents in a list to be added or annexed to the plaint (Order VII rule 14(2)).
There is an important distinction between documents sued upon and documents to be used in evidence.
3.6.4. Lost negotiable instruments
Where the suit is founded upon a negotiable instrument, which is proved to be lost, the Court may pass such decree as it would have passed if the original instrument had been produced in Court along with the plaint; provided the plaintiff gives an indemnity to the satisfaction of the Court against possible claims of any other person upon such an instrument (Order VII rule 16).
Where the document consists of account entries or entries in a shop-book, the shop-book must be produced in the Court and the Court or an authorized officer shall mark the entry for the purpose of identification. The original may be returned to the plaintiff and a copy may be retained on the file (Order VII rule 17).
3.6.6. Inadmissibility of documents not produced when plaint filed
A document ought to be produced with plaint or to be entered in the list annexed with plaint, which is not produced, or entered in list shall not, without the leave of Court, be received in evidence. This rule is inapplicable if a document is produced during the cross-examination of the defendant’s witness or in answer to any case set up by defendant or handed over to a witness to refresh his memory.
3.7 WRITTEN STATEMENT
3.7.1. Defence
The defendant may, and if so required by the Court, shall, at or before the first hearing or within such time as the Court may permit, present a written statement of his defence. Such time should not ordinarily exceed 30 days (Order VIII rule 1). The defence cannot be a general denial. It shall not be sufficient in a written statement to deny generally the grounds alleged by the plaintiff, but the defendant must deal specifically with each allegation of fact, of which he does not admit the truth (Order VIII rule 3). Normally, unless the defendant denies a fact in his written statement, it shall be taken as admitted. However, the Court has the power to require any fact so admitted to be proved otherwise than by such admission (Order VIII rule 5).
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In a suit for the recovery of money, where the defence claims a set off, that is, the defendant claims the plaintiff owes him an ascertainable sum of money legally recoverable from him, to the extent of such claim, the role of the plaintiff or the defendant are reversed. The effect of a claim for set off will be that the written statement will be treated as a plaint in a cross-suit (Order VIII rule 6).
Normally, after the written statement of a defendant, no other pleading will be admitted other than by way of defence to a set off. However, the Court has the power to allow filing of an additional written statement as it thinks fit (Order VIII rule 9). Where a party fails to present the written statement within time, the Court may pronounce Judgment against him or make such order in relation to the suit as it thinks fit (Order VIII rule 10).
3.8 THE FIRST HEARING
3.8.1. Appearance of parties
Order IX states that on the day fixed in the summons for the defendant to appear, parties shall attend in person and the suit shall then be heard unless adjourned. The parties do not necessarily have to be present in person if counsels represent them.
3.8.2. Absence of both parties
Where neither party attends, the Court may dismiss the suit (Order IX rule 3).
3.8.3. Absence of plaintiff
If the plaintiff is absent on a date fixed by the Court for proceeding but the defendant attends, the suit shall be
dismissed. However, if the defendant admits the claim or part of the claim, the Court may pass a decree in respect of the sum admitted (Order IX rule 8).The effect of dismissal is a bar to a fresh claim. However, the plaintiff may apply to set aside the dismissal, if sufficient cause is shown. The Court may make an order setting aside the dismissal, upon such terms as to costs as it thinks fit and appoint a day for proceeding with the suit (Order IX rule 9). “Sufficient cause” has no exact definition and each situation must be decided upon its own merits. Where the non-appearance was not intentional, a strict view ought not to be taken.
3.8.4. Absence of the defendant
If the plaintiff appears and the defendant doesn’t, as long as there is proof of service of summons within the time limit, the Court may proceed to hear the case ex parte. If the summons was served, but there was insufficient time for appearance, the Court shall fix a new date enabling the defendant to be informed of the new date. If the summons has not been served a second summons shall be issued and served on the defendant. Where the summons was not served owing to some default on the part of the plaintiff, the Court shall order him to pay the costs occasioned by the postponement (Order IX rule 6(2)).Where the case is postponed and the defendant subsequently appears at or before the adjourned hearing, and gives a good cause for his previous nonappearance, the Court may allow him to be heard upon such terms as to costs as the Court thinks fit (Order IX rule 7) by setting aside the order proceeding ex parte. The application for setting aside an ex parte order can be made only at or before the adjourned date of hearing otherwise no limitation is provided for setting aside ex parte proceedings in the Limitation Act. However, if good cause is not shown, the defendant can join and participate in the proceedings at a later stage and is entitled to lead evidence and cross examine the witness.
If a decree is passed in the defendant’s absence, he may apply to have the Judgment and decree set aside if he can satisfy the Court that either the summons was not served or he was prevented by sufficient cause from appearing when the suit was called. The Court shall make an order setting aside the decree against him upon such terms as the Court thinks fit, and shall appoint a day for proceeding with the case (Order IX rule 13). No decree can be set aside unless notice thereof has been served on the other party (Order IX rule 14).
The provisions of Section 5 of the Limitation Act 1908 will apply to all applications and therefore such applications must be made within 30 days of the order, or where the summons was not served, within 30 days of knowledge of the decree or order.
3.8.6. Examination of parties by the court
At the first hearing of a suit, the Court shall ascertain from the parties what facts alleged in the plaint or written statement they admit or deny. The Court shall record such admissions and denials (Order X rule 1). To start with, the party or his pleader shall be examined orally and the Court may ask questions suggested by the other party. Subsequently, however, the substance of such examination must be reduced in writing to form a part of the record. Sometimes, one party is not present but represented by his pleader and the pleader may be unable to answer some material questions. In such a case a date may be given for appearance of the party himself. If the party fails to appear on the date fixed by the Court, it is open to the Court to pronounce judgment against him or make any other suitable order (Order X rules 2 to 4).
In any case where the Court considers necessary, with the object of securing expeditious disposal of the case, adopt with consent of the parties alternate dispute resolution method, including mediation and conciliation (Section 89 A).The dispute may be referred for settlement to:
1. Arbitration;
2. Conciliation; or
3. Mediation
In arbitration/conciliation proceedings, provisions of the High Court (O.S.) Rules shall apply.
3.8.8. Interrogatories
Interrogatories are a series of written questions by one party to ascertain facts. The parties can prepare interrogatories requiring the opposite parties to answer them. However, this can only be with leave of the Court. Leave will only be granted for one set of interrogatories. This means that for every new set of interrogatories, permission of the Court will be needed. It is for the Court to decide as to which, if any, of the interrogatories are relevant (Order XI rule 1). Answers to the interrogatories will be in the form of an affidavit to be filed in Court within 10 days or such time as the Court may allow. The form of interrogatories shall be Form 2, appendix - C to the CPC and answers to be given in Form 3 appendix C. Where any party, to a suit is a corporation or a body of persons, the Court may direct the interrogatories to be delivered to, and answered by, a member or officer of such corporation or body. The answers given in response to the interrogatories can be used in evidence (Order XI rule 22).
3.8.9. Discovery of documents
A party may obtain an order from the Court directing the other party to disclose and make available for inspection any
document. Discovery of facts can be by means of interrogatories under Order XI rule 1. Discovery of documents is obtained under Order XI rule 12. The party holding the documents may file an affidavit stating which documents he holds in his possession and those that he objects to produce. It will be for the Court to decide whether it will direct discovery of a specific document. The penalties to be imposed on a defaulting party are given in Order XI rule 21.
3.8.10. Production, impounding and return of documents
No documentary evidence in the possession or power of any party that should have been, but was not, produced before the Court at the first hearing shall be received at any subsequent hearing. However, the Court may allow such subsequent production if sufficient cause is shown (Order XIII rule 1). Documentary evidence in possession of all parties shall be produced at the first hearing whereupon the Court may call upon the parties to admit or deny them. Irrelevant and inadmissible documents should be rejected by the Court recording there on the reason for doing so. If a document is admitted in evidence, it has to be endorsed in accordance with Order XIII rule 4. If only an entry in books of accounts or other such record is to be admitted in evidence, a copy thereof after due verification from the original may be endorsed. The documents admitted by the Court will from part of the record and those rejected will be returned to the person concerned. The Court may also impound a document or book, produced before it if there is sufficient cause for doing so (Order XIII rule 8). The Court may also send or call for papers from its own record or from another Court (Order XIII rule 10). The Court cannot use in evidence any document, which is inadmissible under the law of evidence.
A party may call upon another party in a case either through his pleadings or otherwise in writing to admit the truth of the whole or any part of the case of other party. Similarly, either party may require the other party to admit or produce any document, such notices be in form no 9 and 12 in Appendix C. Like-wise any party may in writing call upon any other party to admit any specific fact or fact mentioned in the notice, such notice be in form no 11 in Appendix C. Any party may, where admissions of facts have been made, either on the pleading or otherwise, may apply to the Court for such judgment (Order XII).
3.8.12. Settlement of issues
Settlement of issues is a critical step in the trial of a suit. The issues drawn by the Court articulate the dispute and determine the scope of the case. The issues are either on facts or on law. It is for the Court to ascertain, before framing the issues, as to what proposition of facts or law the parties are at variance. If the defendant at the first hearing of the suit makes no defence or if the defendant is ex parte, no issues need be framed (Order XIV).If the Court is of opinion that the case can be disposed of on issues of law alone, it shall try those issues as preliminary and postpone the settlement of other issues. Before framing issues, however, the Court may examine witnesses or documents to narrow down, if possible, the scope of the case. The Court, at any time before passing the decree, can amend the issues, frame additional issues or strike out issues already framed. It is possible for the parties to agree upon the questions of fact or law in dispute, which are then expressed in the form of issues. If the Court is satisfied that the agreement is in good faith, it may pronounce judgment (rule 6 Order XIV).
3.8.13. Disposal of the suit at first hearing
Sometimes, it is possible to pronounce judgment at the first hearing if the parties are not at issue on any question of law or fact (Order XV rule 1). However, care should be taken that no injustice results from such a decision; the Court must be satisfied of the good faith and identity of the parties. Where the parties are at issue and the issues have been framed, if the Court is satisfied that no further argument or evidence other than that already available is required, the Court may proceed to determine such issues, make findings and pronounce judgment even if no summons has been issued for settlement of issues or final disposal (rule 3 Order XV). However, if the summons has been issued for the final disposal of the suit and one party fails, without sufficient cause, to produce the evidence on which he relies, the Court may at once pronounce judgment. In its discretion, however, the Court can adjourn the hearing and go through the normal process of trial (Order XV rule 4).
3.8.14. Summary suits
Summary suits can be filed under Order XXXVII in the district court or to a civil court especially notified in this behalf by High Court, respect of recoveries based upon bills of exchange, hundies and promissory notes with or without interest by presenting a plaint in the prescribed form but the summons should be in form no 4 in appendix B. The suit must contain a specific averment that suit has been filed under Order XXXVII; no relief outside the ambit of this Order has been claimed and just below the title it is mentioned “(Under Order XXXVII of the Code of Civil Procedure, 1908)”. The defendant may apply for leave to defend suit within 10 days of receipt of summons, disclosing such facts which entitle him to defend the suit and where the Court considers the defence sought to be raised is not bonafide, it will decree the suit. Otherwise, where defence appears to be bona fide, Court may grant leave to defend, with or without conditions.
When leave to defend is granted, the procedure for ordinary suits is to be followed. The provisions of Section 5 of limitation Act to apply to the application for grant of leave to defend. The defendant seeking an order to set aside the decree has to show “special circumstances” fqf his nonappearance. “Special circumstances” means sufficient cause and merits in his defence, in contradiction with “sufficient cause” a requirement of Order IX rule 13.
3.8.15. Summoning and attendance of witnesses
Not later than seven days after settlement of issues, the parties shall present to the Court a list of witnesses they propose to call. A witness, whose name does not appear in the list, shall not be called without leave of the Court and without good cause for the omission Order XVI rule I (2). Order XVI sets out the procedure for summoning witnesses, their examination and how the expenses for summoning witnesses should be recovered from the concerned parties and defrayed. If a witness failed to respond the summons the Court may impose fine not exceeding two thousand rupees, or may order his property or part thereof to be attached and sold (rule 12). The court may summon any person not party to the suit as a witness and examine him or require him to produce document.
3.8.16. Adjournments
Order XVII permits the Court to grant an adjournment from time to time, if sufficient cause is shown. It is important that Judges exercise caution while granting an adjournment in a trial. Thoughtless approach to this matter results in unnecessary delay that brings criticism upon the judiciary and the Courts. No adjournment should be granted for the benefit of any party unless it is absolutely necessary and as provided for in the CPC.
3.9 HEARING OF THE SUIT
3.9.1. Introduction
The hearing of a suit begins after issues are framed. The plaintiff has the right to begin unless the defendant admits the facts alleged by the plaintiff or contends that either on a point of law or some additional facts alleged by the defendant, the plaintiff is not entitled to any part of the relief which he seeks; in such a case, the defendant has the right to begin (Order XVIII rule 1). The defendant, in his evidence may refute the evidence led by the plaintiff and also prove the issues where the onus of proof is upon him. The plaintiff then has the right to rebut the defence evidence. While recording evidence, the Court should allow only relevant questions, which are necessary for a decision of the issues involved. In every case, the examination-in-chief of a witness by the party who calls him, then the cross-examination by the opposite party, thereafter re-examination by the party called him. Ordinarily, evidence shall be recorded in Court language. However, where the evidence is given in a language different from Court language, the deposition has to be explained to the deponent then it shall be signed by the by the Judge.
The Court may, of its own motion or on the application of any party or his pleader, take down any particular question and answer or any objection to any question, if there appears to be any special reason for doing so. Where a party or his pleader objects to any question put to a witness, and the Court allows the question to be put, the Judge shall take down the question, the answer, the objectibn and the name of the person making it, together with the decision of the Court thereon.

3.9.2. Power to examine a witness immediately
Where a witness is about to leave the jurisdiction of the Court, or some other sufficient cause is shown to the satisfaction of the Court why his evidence should be taken immediately, the Court may, upon an application of any party or of the witness, at anytime after the institution of a suit, take the evidence of such witness. Where evidence is not taken forthwith and in the presence of the parties, such notice as the Court thinks sufficient shall be given to the parties for a day fixed for examination (Order XVIII rule16).
The Court may at any stage of a suit recall any witness who has been examined and may (subject to the law of evidence) put such questions to him as the Court thinks fit (Order XVIII rule 17). The Court may at any stage of a suit, inspect any property or thing concerning which any question may arise and where the Court inspect any property or thing, it shall, as soon as, practicable make a memorandum of relevant facts observed at such inspection and such memorandum shall form part of the record of the suit (rule 18 of Order XVIII)
3.9.3. Demeanour of witnesses
The demeanour of a witness plays very important role with regard to credibility of a witness, i.e. the observation of the judge about conduct and behavior of the witness during his examination. The behavior and appearance of a witness in the witness box has to be noted by the Judge on the issue of credibility (rule 12 of Order XVIII). A Judge, who observes the demeanour of the witness they are being examined by counsel, has from his detached position, a much more favorable opportunity of forming a just appreciation than a judge who himself conduct the examination. If he takes the later course, so to speak descends into arena and is liable to have his vision clouded by the dust of conflict. Unconsciously he deprives himself of the advantage of calm and

dispassionate observation. The demeanour of a witness is apt to be very different when he is being questioned by the judge to what it is being questioned by the counsel”.
3.9.4. Incapacity of the presiding judge
Where a Judge is prevented by death, transfer or other cause from concluding the trial of a suit, his successor may deal with any evidence or memorandum taken down or made under the foregoing rules, as if such evidence or memorandum had been taken down or made by him or under his direction under the said rules and may proceed with the suit from the stage at which his predecessor left it (Order XVIII rule 15(1). The provisions of sub-rule (1) shall be deemed to apply in case a suit is transferred under the provision of Section 24 (sub-rule 2 of rule 15)
3.9.5. Commissions
The Court may issue a commission to examine any person, to make a local investigation, to examine or adjust accounts or to make a partition, to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit and to perform any ministerial act (Order XXVI). Before issuing any commission under this Order, the Court may order such sum (if any) as it thinks reasonable for the expenses of the commission to be paid into Court, within a time to be fixed, by the party at whose instance or for whose benefit the commission is issued.
3.10 JUDGMENT
A judgment is the crystallization of the findings in a suit in the form of a final expression by a Judge after hearing the parties or their pleaders. A Judgment is defined as “the statement given by the Judge on the grounds of a decree or order” (Section 2 (9)).
3.10.1. Pronouncement of judgment
After a case is heard, a Judge shall pronounce judgment in open Court, either at once or, on some future day not exceeding thirty days from the date on which the hearing of the case was concluded, for which due notice shall be given to the parties or their pleaders (rule 1 Order XX) A Judgment written by the predecessor judge not pronounced by him may be pronounced by the successor judge. The Judgment shall be dated and signed by the judge in open Court. Judgment once signed can’t be altered or added to, save as provided by Section 152 or review.
3.10.2. Form of judgments
Judgments of a Civil Court shall contain a concise statement of the case, the points for determination, the decision thereon, and the reasons for such decision.
In suits in which issues have been framed, the Court shall state its finding or decision, with the reasons thereof, upon each separate issue, unless the finding upon any one or more of issues is sufficient for the decision of the suit (Order XX Rule 5).lt is necessary that a Judge should proceed to the consideration of the judgment while the demeanour of the witnesses and their individual characteristics are fresh in his memory. He should bear in mind that his first duty is to arrive at a conscientious conclusion as to the true state of those facts of the case about which the parties are not agreed. The oral and documentary evidence adduced upon each issue should be carefully appreciated. In preparation and delivery of a judgment, attention of the Civil Courts is drawn to the following directions:
The judgment should be in the language of the Court;

1. When a judgment is not written by the Presiding Officer with his hand, every page of such judgment shall be signed by him;
2. It should be pronounced in open Court after it has been written and signed;
3. It should be dated and signed in open Court at the time of pronouncement and once signed, it shall not afterwards be altered or added to, save as provided by Section 152 or on review;
4. It should contain the direction of the Court as to costs;
5. All the paragraphs of the judgment should be serially numbered to facilitate reference;
6. The memorandum of the substance of the evidence given by each witness examined is not required to be referred in the judgment. All that is required is the concise statement of the case and not a reproduction of the evidence. It may be necessary, in particular cases, to refer to, and give a summary of, the statement of a witness or witnesses; but, if so, such summary should be incorporated in the reasons given for the decision. When it is necessary to refer to the evidence, the reference should be by name as well as the number of the witnesses.
Order XXII rule 6 provides that if any party to a suit dies between the conclusion of the hearing and the date of pronouncing the judgment, such judgment may be pronounced notwithstanding the death, and shall have the same force and effect as if it has been pronounced before the death took place.
3.11 DECREE
‘Decree’ is the formal expression of an adjudication, which so far as the Court expressing it is concerned, conclusively determines the rights of parties with regard to all or any
matter in controversy in the suit. The decree may be either preliminary or final (Section 2(2))
3.11.1. Contents of a decree
The decree shall bear the day and date on which judgment was pronounced. When the Judge is satisfied that the decree has been drawn up in accordance with the judgment, he shall sign the decree (rule 7 of Order XX).
Where a Judge has vacated office after pronouncing judgment, but without signing the decree, a decree drawn up in accordance with such judgment may be signed by his successor or, if the Court has ceased to exist, by the Judge of any Court to which such Court was subordinate (rule 8).
Where the subject matter of a suit is immovable property, the decree shall contain a proper description of the property sufficient to identify it, and where such property can be identified by boundaries or by numbers in a record of settlement or survey, the decrees hall specifies such boundaries or numbers (rule 9).
Where the suit is for movable property, and the decree is for the delivery of such property, the decree shall also state the amount of money to be paid as an alternative if delivery cannot be made (rule 10).
Where and in so far as a decree is for payment of money, the Court may for any sufficient reason incorporate in the decree, after hearing such of the parties who had appeared personally or by pleader at the last hearing, before judgment, and order that payment of the amount decreed shall be postponed or shall be made by installments, with or without interest, notwithstanding anything contained in the contract under which the money is payable (rule 11(1)).

After the passing of a decree the Court may, on an application of the judgment-debtor, and with the consent of the decree-holder, order that payment of the amount decreed shall be postponed or shall be made by installments on such terms as to the payment of interest, the attachment of the property of the judgment debtor, or the taking of security from him, or otherwise, as it thinks fit (rule 11(2)).
3.11.2. Life of a decree
1. Where an application to execute a decree, not being a decree for injunction, has been made, no order for the execution of the decree shall be made upon any fresh application presented after the expiration of six years from:-
a) the date of the decree sought to be executed, or
b) where the decree or any subsequent order directs any payment of money or the delivery of any property to be made at a certain date or at recurring periods, the date of default in making the payment or delivery in respect of which the applicant seeks to execute the decree.
2. Nothing in this Section deemed—
a) to preclude the Court from ordering the execution of a decree upon an application presented after the expiration of the said term of six years, where the judgment-debtor has, by fraud or force, prevented the execution of the decree at sometime within six years immediately before the date of the application, or
b) to limit or otherwise affect the operation of Article 185 of the First Schedule to the limitation Act, 1908.
Where a suit is for the recovery of possession of immovable property and for rent or mesne profits, the Court may pass a decree -
a) For possession of the property;
b) For the rents accrued on the property during the period prior to the institution of the suit or for directing an inquiry as to such rent or mesne profit;
c) Directing an inquiry as to rent or mesne profits from the institution of the suit until -
(i) Delivery of possession to the decree holder
(ii) The relinquishment of possession by the judgment-debtor with notice to the decree- holder through the Court, or
(iii) The expiration of three years from the date of the decree, whichever event first occurs.
Where an inquiry is directed under Clause (b) or Clause (c), a final decree in respect of the rent or mesne profits shall be passed in accordance with the result of such inquiry (rule 12)
3.11.4. Decree in administration suit
Where a suit is for an account of any property and for its due administration under the decree of the Court, the Court shall, before passing the final decree, pass a preliminary decree, ordering such accounts and inquiries to be taken and made, and giving such other directions as it thinks fit (rule 13).
3.11.5. Decree in pre-emption suit
Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase-money has not been paid into Court, the decree shall-
a) Specify a day on or before which the purchase- money shall be so paid, and
b) Direct that on payment into Court of such purchase- money, together with the costs (if any) decreed against the plaintiff, on or before the day referred to in Clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs (rule 14(1)).
Where the Court has adjudicated upon rival claims to pre­emption, the decree shall direct:
a) If and in so far as the claims decreed are equal in degree, that the claim of each pre-emptor shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provision would, but for such default, have taken effect; and
b) If and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior preemptor has failed to comply with the said provisions (rule 14(2)).
3.11.6. Decree in suit for dissolution of partnership
Where a suit is for dissolution of a partnership, or rendition of partnership accounts, the Court, before passing a final decree, may pass a preliminary decree declaring the proportionate shares of the parties, fixing the day on which the partnership shall stand dissolved or be deemed to have been dissolved, and directing such accounts to be taken, and other acts to be done, as it thinks fit (rule 15).
3.11.7. Decree in suit for accounts between principal and agent
In a suit for an account of pecuniary transactions between a principal and an agent, and in any other suit not provided for, where it is necessary, in order to ascertain the amount of money due to or from any party, that an account should be taken, the Court shall, before passing its final decree, pass a preliminary decree directing such accounts to be taken as it thinks fit (rule 16).
3.11.8. Special directions as to accounts
The Court may either by the decree directing an account to be taken or by any subsequent order give special directions with regard to the mode in which the account is to be taken. It may, in particular direct that in taking the account the books of account in which the accounts shall be taken as prima facie evidence of the truth of the accounts with liberty to the parties interested to take such objection thereto as they may be advised (rule 17).
3.11.9. Decree in suit for partition of property or separate possession of shares
Where the Court passes a decree for the partition of property or for separate possession of a share then:
1. If the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector in accordance with such declaration and with possession, (see also Section 54).
2. If such decree relates to any immovable property or to movable property, the Court may, if the partition or separation cannot be conveniently
made without further inquiry, pass a preliminary decree declaring the rights of the several parties interested in the property and giving such further directions as may be required (rule 18).
3.11.10. Decree when set-off is allowed
Where the defendant has been allowed a set-off against the claim of the plaintiff, the decree shall state what amount is due to the plaintiff and what amount is due to the defendant, and shall be for the recovery of any sum which appears to be due to either party (rule 19(1)).
3.11.11. Decree in suit for foreclosure
In a suit for foreclosure if the plaintiff succeeds, the Court shall pass a preliminary decree (rule 2 of Order 34)--
a. Ordering that an account be taken of what was due to the plaintiff on the date of such decree for—
i. principal and interest on the mortgage,
ii. the costs of the suit, if any awarded to him, and
iii. other costs, charges and expenses properly incurred by him up to that date, together with interest thereon; or
b. Declaring the amount so due on that date; and
c. Directing—
i. that if the defendant pays into Court the said amount on or before such date fixed by the Court, the original document be delivered by the plaintiff to him, retransfer the property to the defendant free from all encumbrances and put the defendant in possession thereof. If the defendant does not make the payment, the plaintiff shall be entitled to apply for a final decree debarring
the defendant from ail rights to redeem the mortgaged property.
ii. that, if payment is made by the defendant on or before the date fixed for such payment the Court shall, on an application being made by him pass a final decree (rule 3) ordering the plaintiff to deliver to the defendant all the documents referred to in preliminary decree to retransfer the property and to put the defendant in possession thereof.
3.11.12. Decree in suit for sale
In a suit for sale, if the plaintiff succeeds the Court shall pass a preliminary decree in the aforesaid manner (rule 4). Where on or before the day fixed or at any time before the confirmation of sale, the defendant makes payment into Court all amounts due, the Court shall on application being made by him pass a final decree (rule 5), ordering the plaintiff to deliver to the defendant all the documents referred to in the preliminary decree, to retransfer the mortgaged property and to put the defendant in possession thereof. If the defendant has not made the payment, the Court shall, on application being made by the plaintiff, pass a final decree directing sale of the mortgaged property.
3.11.13. Decree in sit for redemption
In a suit for redemption, if the plaintiff succeeds, the Court shall pass a preliminary decree in the above manner (rule7). Where before a final decree debarring the plaintiff from all right to redeem the mortgaged property has been passed or before the confirmation of a sale, the plaintiff makes payment into Court all amounts due, the Court shall on application being made by him pass a final decree rule 8), ordering the defendant to deliver to the plaintiff all the documents referred to in the preliminary decree, to retransfer the mortgaged
property and to put the plaintiff in possession thereof. Where, however, the payment has not been made by the plaintiff the Court shall on application being made by the defendant pass a final decree declaring that the plaintiff is debarred from all right to redeem the mortgaged property.
3.11.14. Decree in representative suit
One or more persons with the permission of Court may sue or be sued, for and on behalf of, or for the benefit of all such interested persons (Order I rule 8). A decree passed under this rule shall bind all such parties, provided such parties are served with notice in person or by publication and court’s permission to the plaintiffs to sue in the representative capacity.
3.11.15. The decree and its preparation
Careful attention should be given while framing a decree, which must agree with the judgment, and be not only complete in itself, but also precise and definite in its terms. It should specify clearly and distinctly the nature and extent of relief granted, and what each party, is ordered to do or forbidden from doing. Every declaration of right made by a decree must be concise, yet accurate; every injunction, simple and plain. In decrees for possession of agricultural land, it should be stated whether possession is to be given at once, or after the removal of any crop that may be standing on the land at that time, when the decree is executed, or on or after any specific date.
3.11.16. Appellate decrees
In appellate Courts, the language used in preparing a decree shall direct that the decree of the lower Court be either “affirmed”, “varied”, “set aside” or “reversed”. In each case in which a decree is affirmed, the terms thereof shall be recited, so as to make the appellate decree complete in it self. In
varying a decree, the relief granted, in lieu of that originally granted should, be fully and accurately set out. Where a decree is reversed on appeal, the consequential relief granted to the successful party should similarly be stated. Every decree should be written, so as to be executable without reference to any other document.
3.11.17. Compromise decree
When a decree is to be passed on the basis of a compromise, the Court should order the terms of the compromise to be recorded in accordance with the provisions of Order XXIII rule 3 and then pass a decree in accordance with the compromise terms. When, however, the compromise goes beyond the subject matter of the suit, a decree can be passed only in so far as it relates to the suit. When any of the parties to the case is a minor, care should be taken to see whether the compromise is for the minor’s benefit and to record a finding to that effect if the compromise is sanctioned and made the basis of a decree. When any parties are added or substituted in the course of the suit, care should be taken to see that their names are properly shown in the decree. The decree shall be signed by the judge and should bear the date of judgment; it should bear the date on which it is signed by the judge. Where a judge has vacated the office before signing the decree that may be signed by his successor.
3.11.18. Decree in Pauper Suit
In suits by paupers, when an order is passed under Order XXXIII rules 10, 11, or 12 a copy of the decree should be forthwith forwarded to the Revenue authority.

3.12 EXECUTION OF DECREES AND ORDERS
3.12.1. Introduction
Every law shall perish if its enforceability is neither ensured nor made feasible. A decree or order passed by a Court is of no use if it is not properly executed.
The law relating to execution of decrees is to be found in Section 36 to 74, Section 82 and 135A and 136 and Order XXI of the CPC. Execution of decrees and orders needs to be done expeditiously, in letter and spirit and should be given equal attention, with original civil work.
Every Court is required, as far as possible, to execute a decree passed by it. When that is not possible, care should be taken to see that it is sent to another Court for execution (Section 39). The transferee Court shall have the same power as if it had been passed by itself. The order passed in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself. The transferee Court shall have the following powers:-
1. power under Section 39 to transfer the decree to another court, if necessary;
2. power under sub-section (1) of Section 50 to permit execution to proceed against the legal representative of a deceased judgment-debtor;
3. power under Section 152 to correct clerical or arithmetical error;
4. power under rule 16 of Order XXI to recognize the assignment of a decree;
5. power under sub-rule (2) of rule 50, to grant leave to the decree-holder to proceed against a person not already recognized as a partner in a firm in an execution proceeding against the firm;
6. power under clause (b) of sub-rule 1 of rule 53, to give notice of attachment of decree passed by another Court (rule 42)
Section 51 incorporates various modes in which the execution of a decree may be ordered that’s are;
a) Delivery of any property specifically decreed;
b) Attachment and sale, or by sale without attachment of any property;
c) Arrest and detention of the judgment debtor;
d) Appointment of a Receiver; or
e) In such manner as the nature of relief may require.
3.12.3. Application for execution
The holder of a decree should move an application for its execution (rule 10). Every application for execution of a decree shall be in writing, signed and verified by the applicant or some other person to be acquainted with facts of the case and contain in a tabular form with the particulars as detailed in sub-rule 2 of rule 11. However, rule 11 provides for making an oral application at the time of passing the decree by the arrest of judgment-debtor prior to the preparation of a warrant if he is within the precincts of the court. Rule 17 details the procedure to be followed on receiving an application for execution. Rules 18 to 20 govern the execution of a decree in cases of cross decrees.
3.12.4. Notice of application
When an application is made after one year from the date of decree or against the legal representatives of party to the decree, or where an application is made for execution of a decree filed under the provisions of Section 44-A, the Court must first issue a notice to the person against whom execution is applied for, requiring him to show cause why the decree should not be executed against him. Notice is not required to be given if any order on an earlier execution application was passed within one year or the said legal

representative was a party. Notice may be dispensed with, for reasons to be recorded, if it considers that issuance of notice would cause unreasonable delay, or would defeat the ends of justice (rule 22(2)). All questions between the parties with regard to the execution, discharge or satisfaction of the decree to be determined by the Court executing the decree and not by a separate suit (Section 47) Objections to the execution of a decree to be considered by the Court, provided the judgment-debtor deposits the decrial amount or furnishes security for the payment, in case of any other decree, he furnishes security for the due performance of the decree (rule 23-A).
An executing Court cannot travel beyond the order or the decree under execution and third party rights cannot be projected for determination in an execution application.
3.12.5. Stay of execution
On showing sufficient cause, execution can be stayed by the executing Court (rule 26). When a stay of execution is granted, the property seizes may be released by a restitution order (rule 26(2)).
3.12.6. Decree for movable property
A decree for any specific movable property or any share in a specific movable may be executed by the seizure, if practicable, of the movable or shares and by delivery there of to the decree holder or his appointee, or by detention in civil prison of the Judgment debtor, or by attachment of his property, or by both (rule 31).The attachment shall cease:
(a) when the judgment debtor has obeyed the decree,
(b) at the end of six months and no application for sale of the property have been made, or
(c) if made, but refused (Rule 3)
3.12.7. Decree for specific performance, restitution of conjugal rights or for an injunction.
Where the party against whom a decree for specific performance of a contract, or for restitution of conjugal rights, or for an junction, has been passed, has had an opportunity of obeying the decree and has failed to obey, may be enforced in case of a decree for conjugal rights by attachment of his property, or in case of specific performance of contract or for an injunction by his detention in prison, or by the attachment of property, or both. The life of such attachment is one year. In case of a decree for specific performance of contract or for an injunction the court may, in lieu of or in addition to above processes, direct the act be done by an official of the court at the costs of judgment- debtor (rule 32). It is the discretion of the Court in executing a decree for restitution of conjugal rights, to require a Judgment debtor to make periodical payments to the decree holder in the event of the decree not being obeyed within the period fixed by the Court (rule 33).
Note- The family Courts, under the Family Court Act, have jurisdiction in respect of a suit for conjugal rights, therefore, the Jurisdiction of civil court is barred to take cognizance of such suits under the provisions of Section 9.
3.12.8. Decree for endorsement / registration
Where a decree is for execution or endorsement of a document, subject to the requirement of registration and after giving the Judgment debtor an opportunity of making any objection or any alteration to the draft of the document or endorsement/instrument drafted by the decree holder in the execution of a decree in respect of a document or endorsement of a negotiable instrument when the Judgment debtor neglects or refuses to obey the decree (rule 34).
Mere pendency of an appeal in a superior Court is not a ground either to stay or prolong the proceedings in the executing Court unless there is a stay by the superior Court. Where a suit filed by a Judgment debtor is pending in any Court against the decree holder, the Court may, on such terms as to security or otherwise, stay execution of the decree till the disposal of that suit (rule 29).
3.12.9. Mode of execution
Every decree for the payment of money may be executed by the detention in prison of the judgment debtor, or by attachment and sale of his property, or both (rule 30).
3.12.10. Decree for immovable property
In execution of a decree for delivery of immovable property, possession has to be delivered to the decree holder if necessary, by removing any person bound by the decree who refuses to vacate the property. Where a decree is for joint possession of immovable property, or for delivery of any immovable property in the occupancy of a tenant or other person entitled to occupy the same and not bound by the decree to relinquish such occupancy, the Court has to order delivery to be made by affixing a copy of the warrant in some conspicuous place on the property, and proclaiming to the occupant by beat of drum or other customary mode, at some convenient place. Where the Judgment debtor in possession does not obey in execution of decree, the Court, through its officers may after giving a reasonable warning and facility to any woman to withdraw, remove or open any lock or bolt or break open any door or do any other act necessary for putting the decree holder in possession (rules 35 and 36).
3.12.11. Arrest and detention in the prison
On failure of a judgment debtor to honor a decree for money, a show cause notice should be issued to him and if the
notice is not complied with, the judgment debtor can be detained in prison (Section 55). The law regarding arrest and imprisonment is contained in Section 51, 55 to 59, 135, 135A and 136 and Order XXI rules 37 to 40, Order XXXVIII rules 1 to 4. The woman can’t be arrested in execution of money decree (Section 56). Other exempted persons are enumerated in Section 135 and 135A.
Instead of issuing a warrant, a notice may be issued calling upon a Judgment debtor to appear and show cause why he should not be committed to prison (rule 37). On appearance or production of the judgment debtor in execution of an arrest warrant, the Court should to conduct an enquiry as per the procedure laid in rule 40, and due opportunity should be given to the judgment debtor to show cause why he be not committed to a prison. Pending such enquiry, the Court can release the judgment-debtor on his furnishing security to the satisfaction of the Court. A judgment debtor can be given an opportunity of satisfying the decree, and the court before making an order of detention, leave the judgment-debtor in custody of an officer of the court not exceeding fifteen days or release him on security. He can be rearrested (rule 40).
3.12.12. Examination of judgment debtor as to his property
The decree holder may apply to a Court for an order that the judgment debtor, or any other person be orally examined to ascertain what property or means exist or are available to satisfy the decrial amount. In case such decree remains unsatisfied for thirty days then the Court may call upon the judgment debtor to attend and be examined, produce any book of account or document (rule 41).
3.12.13. The properties subject to attachment and sale in execution of a decree
The following property is liable to attachment and sale in execution of a decree, namely; land, houses, or other buildings, goods, money, bank-notes, Cheque, bills of exchange, hundies, promissory notes, Govt, securities, bonds or other securities for money. Debts, share in a corporation and, all other saleable property, movable or immovable, of judgment-debtor, save the properties referred in Clauses (a) to (p) of Section 60 of CPC.
3.12.14. Attachment in case of decree for rent or mesne profits where the amount to be subsequently determined
One can execute a decree in respect of an ascertained amount. This is the general rule. But an exception to this general rule is in case of a decree for rent or mesne profits or any other matter, the amount of which is to be subsequently determined. For an unascertained amount, the property of a judgment debtor may be attached. No further steps need be taken in execution till the amount is ascertained (rule 42).
3.12.15. Attachment of movables
Moveable property other than agricultural produce is to be attached by actual seizure; the attaching officer shall keep the property in his custody or in custody of his subordinate. When the property seized is subject to natural decay, or when the expenses of keeping is likely to exceed its value, it be sold (rule 43). When the property attached is an agricultural produce or growing crops, as the case may be, the attachment by affixing a copy at site, another copy at the house of judgment-debtor, and on court notice board (rules 44 & 45)
3.12.16. Garnishee-role-liability
In the case of a debt, share or other property not in possession of a judgment debtor, in case of —
a) debt not secured by negotiable instrument,
b) a share in the capital corporation,
c) other movable property not in the possession of the judgment-debtor, except property deposited in, or in custody of, any court, attachment is effected by the issue of a prohibitory order to a third party liable to pay or deliver any property to the judgment debtor directing to remit the debt to the Court.
These proceedings are called garnishee proceedings and the third party is called a garnishee. If the garnishee/debtor may pay the amount of his debt in court, and such payment shall discharge him from his liability (rule 46). Attachment of the shares or interest of the judgment debtor in moveable property belonging to him is to be so done by a notice to the judgment debtor prohibiting him from transferring the share or interest or charging it in any way (rule 47).
Attachment of salary or allowances of, a Public Officers or Servant of Railway or local authority, can be ordered in execution of a decree (rule 48) subject to certain restrictions imposed by Section 60. Salary to the extent of the first one hundred rupees and one half of reminder is exempted from attachment. In execution of one or more decrees, once there is continuous attachment for a period of 24 months, the salary cannot be attached by anyone for a period of 12 months thereafter. The pay and allowances of persons to whom the Pakistan Army Act, 1952 applies or of persons other than commissioned Offices to whom the Pakistan Navy Ordinance, 1961 applies is exempted from attachment.
For the execution of a decree against a partnership firm or its partner the partnership property can be attached. The Court executing a decree against an individual can only attach his undivided share as a partner in the partnership firm and other partners can be asked to remit the share of that individual against profits or other amounts that are due to him (rules 49 and 50).
Attachment of a negotiable instrument is to be made by actual seizure and the instrument should be brought to Court and held subject to further orders of the Court. This is because any transferee without notice can become a holder in due course and entitled to realize the amounts due under the instrument, and prohibitory orders without seizure of instrument will not bind a holder in due course (rule 51).
3.12.17. Attachment of immovable property
The application for attachment of immovable property of judgment debtor to contain; description of the property, its boundaries or numbers in a record of settlement or survey; specification of judgment-debtor’s share or interest (rule 13) The Court may require the applicant to produce a certified extract from the register of properties (rule 14).
The mode of attaching immovable property is by issuing a prohibitory order to the Judgment-debtor from transferring or charging the property and to the public generally from taking any benefit from such transfer or charge. Such order to be proclaimed by beat of drum, and a copy to be affixed on the property (rule 54). It shall require the judgment debtor to attend the Court on a specified date for settling the terms of the proclamation of sale (rule 66). When the property is land assessed to revenue, the copy of the prohibitory order to be affixed in the office of revenue authority. Strict compliance with the provisions of law is necessary to make the attachment valid. The warrant of attachment, together with requisite copies thereof, are to be
delivered to the Head bailiff who either himself or through a subordinate, is required to affix a copy on the immoveable property, in accordance with the directions in the warrant. An endorsement is to be made by the bailiff on the warrant and it is to be returned duly endorsed within the specified time to the Court. The manner in which, the day and hour at which such act was done is to be submitted in a separate return by the executing person deputed by the bailiff.
A copy of the attachment order is first to be affixed on the property and then upon the Court house. An attachment gets terminated automatically when the decree is satisfied, or the decree is set aside (rule 55). When an execution application is dismissed for any reason after attachment, the Court should to make an order regarding ceasing of the attachment (rule 57).
3.12.18. Precepts
Upon the application of a decree holder, the Court passing a decree may issue a precept to another Court to attach the judgment debtor’s property (Section 46). Precepts are valid for two months unless extended by the Court passing the decree or the decree is transferred to the Court executing the precept.
3.12.19. Adjudication of claims and objections
Objections to attachment of property are frequently filed. Such objections are at times collusive and are to be scrutinized with care and disposed of promptly. Adjudication of such objections or claims should be confined to the points indicated in rule 58 and 59, to be decided by the executing Court, and no separate suit lie. These provisions are not applicable to the decree for foreclosure, sale or redemption as the property is already under charge. This provision may be invoked in cases of attachment in execution of a decree or in cases of attachment before judgment.
Sales generally are dealt with in rules 64 to 73, while rules 74 to 81 deals with sale of moveable property and rules 82 to 103 deals with sale of immoveable property.
Sale of property is subject to tax arrears and also encumbrances if any created prior to attachment, which are binding on the decree holder also. A portion of the property could be also sold to satisfy the decrial amount. The executing Court may examine any person and require him to produce any document for the purpose of ascertain the matters to be specified in the proclamation (sub-rule 4 of rule 66), before the date fixed for settling the proclamation, as to what encumbrances, if any, the property is liable, in respect of immoveable property (other than revenue paying or revenue free land). This is subject to payment of necessary fees by the decree holder. On the day fixed for settlement of a proclamation of sale, after examining the parties present and after making such further enquiry as the Court may consider necessary, the proclamation of sale is to be settled specifying clearly the description of the property (boundaries, if necessary), the name of judgment debtor, extent of interest of the judgment debtor in the property so far as it has been ascertained by the Court, the details of the encumbrances, if any, to which the property is liable.
Every proclamation is to be drawn up after notice to decree-holder and the judgment-debtor, and to be published in the manner provided in rule 54(2), rule 67. It can also be published in a local newspaper or in both and costs incurred shall be deemed to be costs of the sale. Except for property of the kind described in the proviso to rule 43, no sale of property shall without the consent in writing of the judgment debtor, take place until after the expiration of at least thirty days in case of immovable property and of at least fifteen days in the case of movable property, calculated from the date on which the copy of the proclamation has been affixed

(rule 68). Any person, either owning such property or holding as interest therein by virtue of a title acquired before sale, may apply to have the sale set aside on his depositing in Court — a sum of equal to five per cent of the purchase- money for payment to purchaser, and the amount specified in the proclamation of sale for the satisfaction of the decree (rule 89)
The sale may be set aside on application by any person entitled to share in a ratable distribution of assets, or whose interests are affected by sale, on the ground of a material irregularity or fraud in publishing or conducting sale, provided an amount not exceeding twenty per cent of the sum realized at the sale (rule 90).
There is a need to issue a proclamation even in the case of sale of movable properties. The period between the date of proclamation and sale should be clear fifteen days. As far as immovable property is concerned, usually the property is sold at the place where it is situated and not at the Court. On the other hand, movable property is usually sold at the Court premises. In regard to movable properties attached and brought to Court, a day and place of sale has to be fixed by the Court. The normal practice is for a commissioner calling the bids and the Court ultimately makes a final order either accepting the bid and knocking down the sale or not accepting the bid in case the bids are not satisfactory but adjourning the sale for continuation or stopping the sale itself.
When a sale is knocked down, in the case of an immovable property 1/4th of the sale proceeds have to be deposited immediately and 3/4th have to be deposited before the Court closes on the 15th day from the date of sale (rules 84 and 85). If the1/4th amount is not deposited immediately, then the sale has to be cancelled and a fresh sale conducted forthwith at the risk of the auction purchaser, and whatever the loss sustained, it can be recovered from the auction
purchaser who has bid at the auction but failed to pay the amount (rule 84).
A sale can be adjourned on the application by judgment debtor, for a specified period for reasons to be recorded. If for longer period than seven days a fresh proclamation under rule 67 shall be made, unless the judgment-debtor consents to waive it. Every sale shall be stopped if, the debut and cost is tender before knocked down or proof is given that the amount has been paid in Court (rule 69)
As far as movable property is concerned, the sale consideration has to be deposited fully when the bid is knocked down (rule 77), and on issuance of receipt the sale become absolute. Special provisions are made for sale of agricultural produce, growing crops, negotiable instruments and shares in Corporations (rules 74, 75 and 76). A sale of immovable property is to be confirmed (rule 92), provided when no application is made under rules 89, 90 or 91 or if made, is disallowed and balance amount of sale has been deposited within fifteen days of acceptance of offer of highest bidder by the Court. After confirmation of sale, it becomes absolute. Rule 94 requires the issuance of Sale Certificate in favor of the purchaser. Such sale certificate is to be engrossed on general stamps and is delivered to the auction purchaser, and thereafter he can seek delivery of possession under rule 95 or 96 depending upon whether he is entitled to physical possession or symbolic possession.
3.12.21. Resistance to delivery of possession to decree holder or purchaser
Where a decree holder for possession of immovable property or the purchaser of such property sold in execution of a decree is resisted or obstructed by any person in obtaining possession to make an application to the court, it has to investigate the matter by calling the concern person.
Likewise, if it resisted or obstructed by judgment-debtor or some other person on his instigation without just cause, the Court shall direct that the applicant be put in possession and the delinquent may be detained in prison for a term of thirty days (rules 97 & 98). In case of resistance or obstruction by bona fide claimant in good faith to be in possession on his own the Court shall make an order dismissing the application (rule 99). Any person other than the judgment debtor is dispossessed of immovable property in execution can move an application to the Court. The Court has to adjudicate upon such application (rule 99). If the Court concludes that the applicant was in possession of the property on his own account, it shall direct that he be put in possession (rule 101).
All questions arising as to title, right or interest in, or possession of, immovable property between the parties to an application under rule 97 or rule 100 shall be adjudicated and determined by the Court, and not by a separate suit (rule 101). Nothing in rules 99 and 101 to apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person (rule 102).
3.13 SUPPLEMENTAL PROCEEDINGS
3.13.1. Security and arrest before judgment
The provisions rules 1 to 4 of Order XXXVII enables the plaintiff to obtain an order in a suit, of nature referred in Clauses (e) and (f) of Section 16, for security of defendant’s appearance, and in case of failure to furnish security, the Court may commit him to prison provided the Court is satisfied by affidavit or otherwise-
a. that the defendant, with intent to delay the plaintiff or to avoid any process of the Court or to
obstruct or delay the execution of the decree that may be passed against him—
i. has absconded or left the local limits of the jurisdiction of the Court, or
ii. is about to abscond or left the local limits of the jurisdiction of the Court, or
iii. has disposed of or removed from local limits of the jurisdiction of the Court his property or any part thereof, or
b. that the defendant is about to leave Pakistan under the circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of the decree that may be passed against the defendant.
The Court may issue a warrant to arrest the defendant to show cause why he should not furnish security for his appearance. Rule 2, 3 and 4 provide procedure for security its discharge and effect of failure to furnish security.
3.13.2. Attachment before judgment
The rules 5 to 12 cover the matters with regard to attachment where the defendant fails to furnish security for production of property. Where the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or to delay the execution of the decree that may be passed against him;
⦁ is about to dispose of the whole or any part of his property, or
⦁ is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court.
The Court may, at the first instant, direct upon the defendant, within the time fixed in order, either to furnish security, in suit amount for production of the said property or

the value of the same, or such portion of the property that may be sufficient to satisfy the decree, or to appear to show cause why he should not furnish security. The plaintiff shall specify the property required to be attached and its estimated value. The Court may also direct the conditional attachment.
In case the defendant’s failure to show cause or to furnish security within the time specified. The Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree that may be passed in the suit, be attached Where the defendant shows such cause or furnishes the security, the Court shall order for withdrawal of attachment (rule 6).The attachment shall be made in the manner provided for the attachment of property in execution of a decree (rule 7). The provisions of Order XXI rule 58 and 59 are applicable to investigation of property attached before judgment (rule 8). The attachment ceases on furnishing security or in the event of dismissal of suit (rule 9); such attachment shall not affect the riqhts of stranqers (rule 10)
3.13.3. Temporary injunctions in pending suits
Order XXXIX regulates the grant of injunctions pendente lite. Where in a suit it is proved by affidavit or otherwise—
⦁ that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
⦁ that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors.
The Court may grant a temporary injunction to restrain such act, or make such order for the purpose of staying and preventing the waste, damaging, alienation, sale, removal or disposition of the property, until the disposal of suit or until

further orders. In case of disobedience or of breach of terms of such injunction, the Court may make an order of attachment of guilty person’s property be attached or he be detained in prison for a period not exceeding six months. Even the Court may order that property attached be sold (rule 1). The Court may also grant injunction in suits for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed or not. In case of disobedience or breach of such injunction, the property of the defaulting party may be attached or he be detained in prison for a period not exceeding six months. Such attachment will remain effective for one year. The life of an ex-party injunction under rule 1 and 2 is fifteen days and injunction granted after hearing the parties cease to have effect on the expiration of six months. The injunction granted may be discharged, varied or set aside on application of opposite party after hearing both side.
The principle for the grant of injunction is well settled, prima facie case, balance of convenience and irreparable injury. This discretionary relief is controlled by the provisions of Section 56 of Specific Relief Act, which prohibit the Court from granting injunction in respect of the following matters:-
a) To stay a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
b) To stay proceedings in a Court not subordinate to that from which the injunction is sought;
c) To restrain persons from applying to any legislative body;
d) To interfere with the public duties of any department of Federal or any Provincial Government, or with sovereign act of Foreign Government;
e) To stay proceeding in any criminal matter;
f) To prevent the breach of a contract, the performance of which would not be specifically enforced;
g) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be nuisance;
h) To prevent, a continuing breach in which the applicant has acquiesced;
i) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except breach of trust;
j) When the conduct of the applicant or his agents has been such as to disentitle him to the assistance of the Court;
k) Where the applicant has no personal interest in the matter.
3.13.4. Appointment of receivers
Where it appears to the Court to be just and convenient, it may by order appoint a receiver to any property, even after a decree is passed. The Court can also remove any person from possession or custody of the property and it can be committed to the possession, custody or management of the receiver. Powers that can be conferred on a receiver are embodied in Order XL rule 1, while rule 3 of the said order lays down the duties of a receiver. The failure of a receiver to submit accounts or for making payments or occasioning losses to the property by willful default or gross negligence may call for the Court to take action, including attachment of the receiver’s property, consequent sale of it and application of proceeds towards making good any amount found to be due from him or any loss occasioned by him (rule 4). In some cases, the Collector may be appointed as a receiver (rule 5). The remuneration to be paid for the services of a receiver is to be fixed by the Court (rule 2).
Apeal
An appeal may be from an original decree or an appellate decree.
3.14.1. Appeal from an original decree
An appeal normally lies to the next higher Court to which such decree is appeal able. An ex-parte decree is no exception. However, no appeal lies from a consent decree. If an aggrieved party fails to appeal from a preliminary decree, it stands precluded from disputing its correctness in the course of an appeal from the final decree.
3.14.2. Rules and orders
The form and contents of a memorandum of appeal are prescribed in Order XLI rule 1 .The nature of grounds that can be urged by an appellant is provided in rule 2. Rule 4 provides that one of several plaintiffs or defendants may obtain the reversal of the whole decree on a common ground.
3.14.3. Stay of proceedings and execution
The filing of an appeal does not operate as a stay of proceedings or decree. However, a stay can be granted on the grounds given in Order XLI rule 5(3) and upon conditions given in rule 6. No security is required from Government. On the same grounds and conditions, an order made in the execution of a decree may be stayed under rule 8 if that order has been appealed from.
3.14.4. Procedure
All appeals shall be registered in the Register of Appeals. The appellant may be asked to furnish security for costs and it is mandatory if the appellant is a foreign national not

having any immovable property in Pakistan. If security is not furnished, in spite of order, the appeal may be rejected (rule 9 & 10). An appeal may be dismissed for non-prosecution also (rule 11(2)). Such order should be intimated to the lower Court Rule 11(3). If the appeal is admitted, notice to be issued to the respondents and the Court below calling for the trial court record. (Rule 13)
The appellant has right to begin the arguments. The Court may dismiss the appeal even before hearing the respondent. If it does not, then it can hear the respondent. In such a case, right of reply is given to the appellant. It should be noted that for hearing appeals, there is no provision to give an opportunity to respondent to file a reply. After admission of the appeal, the same may be dismissed in default. On the date fixed, if the respondent is absent, ex parte orders can be passed.
Re-admission of appeal is provided after showing sufficient cause for such default (rule19). Rehearing of appeal on application of the respondent where the appeal was heard ex-parte, if sufficient cause has been shown for his non-appearance (rule 21).
3.14.5. Role of respondent
A respondent in an appeal may support the decree or he may ask for a finding on any issue to be decided or he may file cross-objections. Cross-objections should be filed within 30 days. Cross-objections should be in the form of a memorandum of appeal (rule 22). After hearing the appellant, the Court may set-aside the judgment and decree, give new findings on issues, remand the case or may dismiss the appeal on merits.
3.14.6. Additional evidence in appellate court
There is no right vested in any party to adduce evidence. But such evidence may be allowed, either oral or testamentary only if the trial Court had refused or the party was prevented from adducing the same despite due diligence (rule 27). This is called as additional evidence. The Appellate Court may receive or it may direct the subordinate Court to take such evidence on record on specific points (rules 28, 29).
3.14.7. Judgment
Judgment may be pronounced on the conclusion of hearing, on the same day or on some future day of which notice shall be given to the parties or their pleaders. The Judgment shall be in writing and shall state:-
1. The points for determination.
2. The decision thereon.
3. The reasons for the decision.
4. Whether the decree appealed is reversed or varied, the relief to which an appellant is entitled. At the time of pronouncement, the Judgment shall be signed and dated by the Judge.
3.14.8. Power of the appellate court
While determining an appeal, the Court has powers—
⦁ to determine a case finally;
⦁ to remand a case;
⦁ to frame issues and refer them for trial;
⦁ to take additional evidence or to require such evidence to be taken.
The Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as conferred and imposed on the Courts of original jurisdiction in respect of suits (Section 107), save the order to grant
costs under Section 35-A, if the trial Court had not granted it (rule 33)
3.14.9. Judgment must address all grounds
The appellate Court must address every ground set out in the appeal. Sometimes, a counsel may give up some of the grounds. In such cases it must be recorded in the Judgment, specifically, which grounds in the appeal have not been pressed. If this is not done, complications may arise in a higher Court.
3.14.10. Decree in appeal
Decree of the Appellate Court should contain the following details:
1. The date of Judgment in appeal.
2. Appeal Number.
3. Description of parties to the appeal.
4. The adjudication made on specific points, the relief granted.
5. The amount of costs, the proportion and liability thereof.
6. The name, date and signature of the Judge.
A copy of the decree should also be sent to the subordinate Court.
3.15 APPEALS FROM ORDERS
3.15.1. Appeals from orders
Order XLIII rule 1 deals with Appeals from Orders. An appeal shall lie from the following orders under the provisions of Section 104, (1)— namely (either/or):
(i) an order under Section 35-A;
(ii) an order under Section 47;
(iii) an order under Section 95;
(iv) an order imposing fine or directing arrest or detention of any person under any provisions of the Code except an arrest or detention in execution of a decree;
(v) any order made under rule from which an appeal is expressly allowed by rules.
(2) No Appeal from any order passed in appeal under this
section.
The following orders are appeal able:-
1) an order under rule 10 of Order VII returning a plaint to be presented to the proper Court;
2) an order under 10 of Order VIII pronouncing judgment against a party;
3) an order under rule 9 of Order IX rejecting an application (in a case open to appeal) for an order to set aside the dismissal of a suit;
4) an order under rule 13 of Order IX rejecting an application (in a case open to appeal) for an order to set aside a decree passed ex parte;
5) an order under rule 4 of Order X pronouncing judgment against a party; setting aside or refusing to set aside a sale;
6) an order under rule 21 of Order XI;
7) an order under rule 10 of Order XVI for attachment of property;
8) an order under rule 20 of Order XVI pronouncing judgment against a party;
9) an order under rule 34 Of Order XXI on an objection to the draft of a document or an endorsement;
10) an order under rule 62 or Rule 103 of Order XXI relating to right, title or interest of the claimant or objector in the attached property;
11) an order under rule 72 or rule 92 of Order XXI setting aside or refusing to set aside a sale;
12) an order under rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit;
an order under rule 10 of Order XXII giving or refusing to give leave;
14) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction;
15) an order under rule 2 of Order XXV rejecting an application (in a case open to appeal) for an order to set aside the dismissal of the suit;
16) an order under rule 2, rule 4 or 7 of Order XXXIV refusing to extend time for the payment of mortgage money;
17) an order in interpleaded suits under rule 3 rule 4 or 6 of Order XXXV;
18) an order under rule 2, rule 3 or 6 of Order XXXVIII;
19) an order under rule1,rule 2, rule 4 or rule 10 of Order XXXIX;
20) an order under rule 1 or rule 4 of Order XL;
21) an order of refusal under rule 19 of Order XL to readmit, or under rule 21 of Order XL to re-hear, an appeal;
22) an order under rule 23 of Order XLI remanding a case,
23) an order under rule 4 of Order XLVII granting an application for review.
3.15.2. Procedure for appeals from orders
The provisions of Order XLI apply, so far as may be, to appeals from orders. If a suit is still pending, notice to the respondent or his advocate is necessary as provided in rule 3.
3.16 REVISIONAL POWER OF DISTRICT COURT
3.16.1. Power of revision
Originally the power of revision was with High Court. The District Court has been given concurrent revisional
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jurisdiction in respect of any case decided by a Court of subordinate to such District Court and in which no appeal lies thereto, and if such subordinate Court:-
to have exercised the jurisdiction not vested in it by law, or
to have failed to exercise a jurisdiction so vested, or to have acted in the exercise of its jurisdiction illegally or with material irregularity, the District Judge may make such order in the case as it think fit.
If an application in respect of a case with in the competence of District Court has been made either to the High Court or the District Court, no further such application shall be made to either of them (Sub-Sections (2) & (3) of Section 115). No proceedings in revision shall lie to the High Court against the order made under Sub-Section (2) by District Court.
3.17 MISCELLANEOUS
3.17.1. Death of parties
Order XXII rule 1 provides that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. In such a case, the legal representatives of the deceased have to be brought on record as parties and then the trial of the suit will proceed. If there is more than one plaintiff and one of them dies, the right to sue does not survive solely in the surviving plaintiffs); the legal representative of the deceased plaintiff have to be made a party before proceeding with the suit. If on the death of one or more defendants the right to sue does not survive against the surviving defendant(s) or the sole defendant or sole surviving defendant dies and the right to sue survives, the Court on application made in that behalf shall bring the legal representatives of the deceased defendant on record and proceeds with the suit. If such legal representatives are not brought on record, notwithstanding the death of such defendant(s), the Court may proceed with the suit and
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pronounce order or Judgment, which shall have the same force and effect as if the defendant was alive.
3.17.2. Marriage of a female party
Marriage of a female plaintiff or defendant shall neither cause the suit to abate, nor any effect on her liability (Order XXII rule 7(1)). However, if her husband is liable by law for the debt of his wife, the decree may be executed against him with the permission of the Court and, likewise, if the decree be in her favor the husband may be permitted by the Court to execute the decree on her behalf if the husband is by law entitled to the subject-matter of the decree (rule 7(2)).
3.17.3. Plaintiffs insolvency
The insolvency of a plaintiff in any suit being maintained by his assignee or receiver for the benefit of his creditors will not cause the suit to abate unless such assignee or receiver declines to continue the suit. The procedure to be adopted where the assignee fails to continue the suit or give security as provided in Order XXII rule 8(1) is set out in rule 8(2). If a suit is dismissed, a fresh suit cannot be brought on the same cause of action (rule 9(1)). However, a legal representative of a deceased party or the assignee or the receiver may under rule 9(2), apply for getting the order or Judgment in the case set aside.
3.17.4. Assignment etc. before final order in suit
The procedure in case of assignment, creation or devolution of any interest during the pendency of the suit is prescribed in rule 10. This provision is applicable with necessary modification to appeals.
After instituting a suit the plaintiff may be permitted on suitable terms to withdraw his suit or abandon part of his claim as against all or any defendant, if the suit is bound to fail by reason of some formal defect. The Court may also permit the withdrawal if there are other sufficient grounds to allow the plaintiff to institute a fresh suit with the same claim or a part thereof. In either case permission may be granted to the plaintiff to institute afresh suit. If a suit is withdrawn without permission of the Court, the plaintiff is not only liable to pay costs but will also be precluded from instituting a fresh suit. In such a case, the law of limitation will apply to the second suit as if the first suit has not been instituted (Order XXIII rule 1).
3.17.6. Compromise
If the parties to a suit arrive at a lawful compromise, the Court shall record the compromise, agreement or satisfaction, and pass a decree in accordance therewith to the execution of a decree or order (Order XXIII).
3.17.7. Security for costs
If the plaintiff(s) are residing outside Pakistan and they do not possess any immovable property in Pakistan, except the property in dispute, the Court shall ask him/them to furnish security for the costs incurred or likely to be incurred by any defendant. In case of default, the Court may dismiss the suit unless it is withdrawn sooner with the permission of the Court. The dismissal may, however be set aside later but after hearing the other party.
3.17.8. Inter pleader suit
Inter pleader suits can be filed by a person in possession of any property or sum of money who claims no interest in the
Tables
Frame of Suit
Nature of Suit Placing of Suing
Every Suit Court of the lowest grade competent to try it. (Section 15)
Suits for:
⦁ Recovery of; or
⦁ Partition of; or
⦁ Foreclosure, sale or redemption of mortgage or charge upon; or
⦁ Determination of any other right to or interest in; or
⦁ Compensation for wrong to: IMMOVABLE PROPERTY Court within whose Jurisdiction the IMMOVABLE PROPERTY is situated
(SECTION 16 (a) to (e))
Recovery of movable property under actual distraint or attachment Court within whose jurisdiction the movable property is situated (Section 16(f)).
⦁ Relief Respecting; or
⦁ Compensation for wrong to immovable property held by or on behalf of the defendant, where the relief sought can be entirely obtained through his personal obedience. Court within whose jurisdiction:
⦁ The property is situated; or
⦁ The defendant resides or carries on business or personally works for gain. (Proviso to Section 16)
⦁ Relief respecting; or
⦁ Compensation for wrong to immovable property situated within the jurisdiction of different Court within whose jurisdiction any portion of the property is situated, provided that the entire claim is within the pecuniary jurisdiction of such Court (Section 17).
Where it is uncertain the jurisdiction of which of the two or more Courts any immovable property is situated. Any of those Courts, provided that the Court has pecuniary jurisdiction and jurisdiction as regards the subject matter of the suit (Section 18)
Compensation for wrong to:
⦁ Person, or
⦁ Movable Property In either of the Courts at the option of the Plaintiff (Section 19).
same but there are one, two or more claimants, so as to determine the rightful claimant, he can approach the Court. The procedure in this regard has been provided in Order XXXI of the CPC.
3.17.9. Special case
If there is a difference of opinion between the two litigants on a question of fact or law, they may agree to refer such question to a Court having jurisdiction in the matter for its opinion. Such an agreement when filed in a Court is registered as a suit. It is then heard as if instituted in the ordinary manner. The Court may then pronounce Judgment after complying with the requirement of Order XXXVI. When Judgment is pronounced, a decree shall follow.
If the wrong is done within the jurisdiction of one court and the defendant resides or carries on business or personally works for gain within the jurisdiction of another court.
Any other suit ⦁ Where the cause of action wholly or partly arises; or
⦁ The defendant resides, carries on business or personally works for gain; or
⦁ Where there are two or more defendant s, where any of them resides, carries on business or personally works for gain, provided that:
Either the leave of the Court is obtained; or
The defendants, who do not reside, carry on business or personally work for gain (Section 20).
ii

Part IV, Qanoon-e-Shahadat Order, 1984

PART FOUR
QANOON-E-SHAHADAT EVIDENCE
Qanoon-e-Shadat Order, 1984

PART FOUR
SHAHADAT (EVIDENCE)
(Qunaun'e'Shahadat Order, 1984)
4.0.1 Introduction
Part IV of this manual covers another procedural law contained in Qunaun-Shahadat Order (law of evidence) that may be defined as a system of rules for ascertaining controverted questions of fact in judicial proceedings. The object of every judicial proceeding is the enforcement of some right or liability which invariably depends upon certain facts. Before a Court can pronounce as to the existence of a right or liability, it must ascertain the facts which according to the rule of substantive law applicable to the case, are necessary constituents of that right or liability. This duty of ascertaining the facts which are the essential elements of a right or liability is the primary, and perhaps the most difficult function of the Court. This procedural law is most neglected field by bar and bench equally. Law of evidence being adjective law, all the question to be decided according to the law of forum (Lex Fori) in which the action is tried. Even where evidence is taken on commission or otherwise from abroad, its admissibility is determined by the law of evidence of the country where the action is being tried. The main object the rule of evidence is to prevent indiscipline in admission of evidence by enacting a correct and uniform rule of practice. If irrelevant facts are admitted they are likely to disguise the truth than discover it. The main principles are;
(1) Evidence must be pinned down to matter in issue.
(2) Best evidence must be tendered.
(3) Hearsay evidence must be kept out.
Witnesses, their competency, their privileges are in Chapter 4.3, relevancy of facts are given in Chapter 4.4, it
may be sub divided into (a) Fact connected with the fact to be proved, (b) Statements about the fact to be proved, (c) Decisions about the fact to be proved, (d) Opinions about the fact to be proved, (e) Character of the persons who are concerned with the fact to be proved. Oral and documentary evidence, (i) primary & (ii) secondary and its admissibility, public & private documents, and exclusion of oral by documentary are contained in Chapter 4.5, presumption of fact and presumption of law and conclusive proof are given in Chapter 4.6, facts need not be proved and estoppels are covered in Chapter 4.7, burden of proof, examination of witnesses are covered by Chapter 4.8, miscellaneous Chapter 4.9. The “expressions” used in the Order, material for better understanding of the subject, are mentioned in Chapter 4.1.
4.1 EXPRESSIONS
4.1.1 Document
“Document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter; (Article 2b)
A writing is a document;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document; are the illustrations of a document
4.1.2. Evidence
“Evidence” includes—
I. All statements which the Court permits or requires to be made before it by witnesses, in relation to
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matters of fact under inquiry; such statements are called ‘oral evidence’; and
H All documents produced for the inspection of the Court; such documents are called ‘documentary evidence’ (Clause c).
4.1.3. Facts “Facts” includes—
I. Anything; state of things, a relation of things capable of being perceived by the senses; and
II. Any mental condition of which any person is conscious (Clause d).
This clause has five illustrations they are;
(a) That there are certain objects arranged in a certain order in a certain place, is a fact;
(b) That a man heard or saw something, is a fact;
(c) That a man said certain words, is a fact;
(d) That a man holds certain opinion, has a certain intention, acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious, particular sensation, is a fact;
(e) That a man has a certain reputation is a fact.
4.1.4. Fact in issue “Fact in issue” includes—
Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent or any right, liability or disability, asserted or denied in any suit or proceeding, necessarily following.
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Whenever, any Court records an issue of fact, to be asserted or denied in the answer to such issue is a fact in issue. The illustrations of fact in issues are;
A is accused of the murder of B.
At his trial, the following fact may be in issues
That A caused B’s death
That A had intention to cause B’s death;
That A had received grave & sudden provocation from B;
That A, at the time of doing the act which caused B’s death, was by reason of unsoundness of mind, incapable of knowing its nature.
4.1.5. Fact proved
A fact is said to be proved when, after considering the matter, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exist.
4.1.6. Fact disproved
A fact is said to be disproved when, after considering the matter before it, the Court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist.
4.1.7. Fact not proved
A fact is said not to be proved when, it neither proved nor disproved.
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4.2 WITNESSES. THEIR COMPETENCY & PRIVILEGES
4.2.1. Who may testify
All persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them, or giving rational answer to those questions by;
(i) tender years,
(ii) extreme old age,
(iii) disease, whether of body or mind, or
(iv) any other cause of the same kind.
A person convicted for perjury or giving false evidence shall not be competent to testify unless the Court is satisfied that he has repented thereafter and mends his ways. Further the competency of witness has to be determined by Court in accordance with the qualifications prescribed by injunctions of Islam as laid down in Holy Qur’an and Sunnah (Article 3).
An accomplice is a competent witness against an accused person, except in offences punishable with Hudd: and conviction would not be illegal because it proceeds upon uncorroborated testimony of an accomplice (Article 16). Unlike many ancient, and even some modern, systems, the Order does lay down the competence and number of witnesses required, to prove a particular fact, which in any case, shall be determined in accordance with injunctions of Islam as laid down in the Holy Qur’an and Sunnah (Article 17)
4.2.2. Public privilege
Certain matters, on the ground on the ground of public policy, are protected from disclosure and witnesses can’t be compelled or permitted o answer the questions relating to such matters.
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No Judge or Magistrate shall be compelled to answer any question regarding his own conduct in Court in such capacity, or as to anything which came to his knowledge in that capacity, except upon special order of his superior (Article 4). No one shall be permitted to give evidence regarding unpublished official records relating to affairs of state, except with the permission of head of the department (Article 6). Public officer shall not be compelled to disclose communications made to him in official confidence, when he considers that its discloser would against public interest (Article 7). Likewise, Magistrate, police-officer or the revenue officer shall be compelled to say when and where he got the information as to the commission of an offence including offence against the public revenue (Article 8).
4.2.3. Private privilege
No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married; nor shall he be permitted to disclose any such communication unless the person who made it consents except in suits between married person, or proceeding in which one married person is prosecuted for any crime against the other (Article 5). No legal practitioner can be permitted without his client’s express consent, to disclose any communication made to him in the course and for the purpose of his employment, or to disclose any advice given by him to his client in the course and for the purpose of such employment, but it does not protect from disclosure:-
i. Any communication made in furtherance of illegal purpose, and
ii. Any fact observed, showing that a crime or fraud has been committed since the commencement of the employment (Article 9)
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The above rule also applies to interpreters, clerks, and servant of legal practitioner (Article 10)
If the client calls the legal practitioner as a witness, he will be deemed to have consented to such disclosure only if he questions the legal- practitioner on a matter, but for such questions, he would not be at liberty to disclose (Article 11). The client can’t be compelled to disclosed any confidential communication between himself and his professional legal adviser, unless he offers himself as a witness, in which case he may be compelled to disclosed any such communication as may be necessary to explain any evidence which he has given (Article 12).
No one, who is not a party to the suit, can be compelled to produce his title deed to any property, or any document in virtue of which he holds any property as mortgagee or pledge or any document the production of which might tend to criminate him, unless he has agreed in writing to produce them with the person seeking their production through whom he claims (Article 13). And no one can be compelled to produce documents in his possession, which another person would be entitled to refuse to produce if they were in his possession, unless such last mentioned person agrees to their production (Article 14). The mere fact that the answer to question will tend to criminate the witness, or to expose him to a criminal prosecution or a penalty or forfeiture, is no reason for his refusing to answer the question if it relates to a relevant fact. But the witness, in such a case, may ask the Court to excuse him from answering such questions, and if the Court then compels him to answer, the answer will not subject him to any arrest or prosecution or be proved against him in any criminal prosecution except perjury (Article 15).
4.3 RELEVANCY OF FACTS
4.3.1. Introduction
In order to prove the existence or non-existence of facts in issue, certain other fact may be given in evidence. The name “Relevant Fact” is given to such facts (Article 18) Article 19 to 69 define such relevant facts. The Order specifies five instances of connection which may exist between the evidential fact and the fact to be proved, in order to make former relevant.
Facts connected with the fact to be proved (Articles 19 to 29);
Statements about the fact to be proved (Article 30 to 53);
Decisions about the fact to be proved (Article 54 to 58); Opinions about the fact to be proved (Article 59 to 65); Character of the persons who are connected with the fact to be proved (Article 66 to 69)
The sub-divisions merely indicate the view point from which relevancy is looked at. The general rules governing these sub-divisions may perhaps be more accurately expressed in negative forms, thus, the correct rule relating to these sub-divisions may be expressed in this form; (I) nothing connect with fact to be proved is relevant unless it is connected with the latter in any of the ways mentioned in Articles 19-29. (II) Nothing said about the fact to be proved is relevant unless the statement falls within terms of any or more of the Articles 30-53. (Ill) Nothing declared about the fact to be proved is relevant unless the decision is of the kind mentioned in articles 54-58. (IV) No opinion about the fact to be proved is relevant unless the opinion is of a person and about the matter mentioned in Articles 59-65. (V) Character is not relevant except in the cases mentioned in Articles 66- 69.
4.3.2. Facts connected in any of the following ways
Fact which though not in issue, are so connected with a fact- in-issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different time and places. (Article 19)
A is accused of murder of B by beating him. Whatever was said or done by A or B or the by-standers at the beating, or so shortly before or after it as to form part of the transaction is a relevant fact (Article 19)
Fact which are the occasion, cause or effect, immediate or otherwise, of relevant fact or fact-in-issue or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant. (Article 20)
The question is, whether A murdered B.
Marks on ground, produced by a struggle at or near the place where the murder was committed, are relevant fact (Article 20).
Any fact is relevant which shows or constitute a motive preparation for any fact-in-issue or relevant fact. The conduct of any party, or any agent to any party to any suit, or in reference to any fact-in-issue or relevant thereto, and the conduct of any person an offence against whom is the subject of the proceedings, is relevant if such conduct influences or is influence by fact-in-issue or relevant fact, and whether it was previous or subsequent thereto.
A is tried for the murder of B by poison.
The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant (Article 21)
Fact necessary to explain or introduce a fact-in-issue or relevant fact, or which support or rebut an inference suggested by a fact-in-issue or relevant fact or which establish the identity of anything or person whose identity is
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relevant or fix the time or which show the relation of parties by whom any such fact was transacted, are relevant in so far they are necessary for that purpose.
Identity of an accused and identity of thing stolen are relevant fact (Article 22)
Where two or more persons have conspired together to commit an offence any thing said, done or written by any of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons conspiring, as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it (Article 23).
Facts not otherwise relevant are relevant—
If they are inconsistence with any fact-in-issue or
relevant fact;
If by themselves or in connection with other facts they make the existence or non existence of any fact-in-issue or relevant fact highly probable or improbable. (Article 24)
The question is, whether A committed a crime at Peshawar on a certain day.
The fact that on that day, A was at Lahore is relevant (Article 24)
Facts tending to enable Court to determine amount of damage in suit for damages are relevant (Article 25).
Where the question is to the existence of any right or custom, the following facts are relevant:-
a) Any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistence with its existence;
b) Particular instances, in which the right or custom was claimed, recognized or exercised,
or in which its exercise was disputed, asserted or departed from (Article 26).
Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill- will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant (Article 27)
A is tried for the murder of B by intentionally shooting him dead.
The fact that A on other occasion shot B is relevant as showing his intention to shot B.
The fact that A was in habit of shooting at people with intent to murder them is relevant.
When there is a question whether an act was accidental or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each of which the person doing the act was concerned, is relevant (Article 28).
When there is a question whether a particular act was done, the existence of any course of business, according to which it naturally would have been done, is a relevant fact. (Article 29)
The question is whether a particular letter reached A.
The facts that it was posted in due course, and not returned through the Dead Letter Office, are relevant.
4.4 ADMISSIONS AND CONFESSIONS
4.4.1. Admission
An admission is a statement oral or documentary, which suggests any inference as to any fact-in-issue or relevant
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fact, and which is made by any person and under the circumstances, mentioned in articles 31 to 36 (article 30).
Statements made by party to the proceeding, or his agent, as expressly or impliedly authorized to make them, are admissions
The statement made by parties to suit, suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.
Statement made by:-
a) Persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding, and who make the statement in their character of persons so interested; or
b) Person from whom the parties to the suit have derived their interest in the subject matter of the suit.
are admissions if they are made during the continuance of the interest of the persons making them (Article 31)
The admission made by persons, whose liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such liability in a suit brought by or against them, and if they are made whilst the person making them is subject to such liability (Article 32)
Statements made by persons to whom a party to the suit has expressly referred to information in reference to the matter in dispute are admissions (Article 33).
Admissions are relevant and may be proved against the person who make them, or his representative-in-interest; but not be proved by or on their behalf, except in the following cases;

1. When it is of such nature that the person making it, were dead, it would be relevant as between third persons under Article 46.
2. The admission relates to a relevant state of mind or body, if made at or about the time when that state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.
3. An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission (Article 34).
Oral admissions as to the contents of a documents are not relevant, unless the party propose to prove them shows that he is entitled to give secondary evidence of the contents of such document under the rules or unless the genuineness of a document produced is in question (Article 35).
In civil cases a conditional admission is not relevant, that evidence of it not to be given (Article 36).
Admissions are not conclusive proof of the matters admitted but they may operate as estoppels (Article 45).
4.4.2. Confessions
“Confession" is not defined in the Order, but includes it in admissions of which it is a species. A confession is relevant as an admission (Article 34), unless it is made:-
a) To a person in authority in consequence of some inducement, threat or promise held out by him in reference to the charge against the accused (Article 37);
b) To a police officer (Article 38);
c) To ay one at the time when the accused is in custody of a police officer and not magistrate is present (Article 39).
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A confession made in the circumstances mentioned in Clauses (a), (b) and (c) above became admission if it leads to the discovery of a relevant fact but in such a case only that part of the confession becomes provable which distinctly relates to the fact discovered (Article 40).
If such a confession as referred to in Article 37 is made after the impression caused by any such inducement, threat or promise has, in the of the Court been fully removed, it is relevant (Article 41).
If a confession is otherwise relevant, it does not become irrelevant because it was made under a promise of secrecy, or in a deception practiced for obtaining it, or he was drunk, or it was made in answer to questions which he need not have answered, or he was not warned that he was not bound to make confession, and that evidence of it might be given against him, save to the trial of cases under Hudood laws (Article 42).
A confession is evidence only against its maker, but if the maker, besides implicating him self, involves another person who is being jointly tried with him for an offence, the confession may also be taken into consideration as circumstantial evidence against the latter (Article 43).
4.5 ESTOPPEL
4.5.1 Estoppel defined
When one person has, by his declaration, act or omission, intentionally caused or permitted another person to believe to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing (Article 114).
The estoppel by contract or agreement is merely a species of estoppel by representation. No tenant or licensee of immovable shall be permitted to deny the title of his landlord or licensor (Article 115). No acceptor of a bill of exchange shall be allowed to deny that the drawer had authority to draw bill or to endorse it; no shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, had authority to make such bailment or grant such license (Article 116).
4.6 OF PERSONS WHO CAN NOT BE CALLED
4.6.1. Persons, dead or can’t be found
Article 46, is one of the exception of to the rule against the hearsay, makes relevant certain statements made by persons who are dead, or can’t be found or produced without unreasonable delay or expense. The conditions determining the relevancy of statements under this rule are:-
1. That the statement must relate to a fact in issue or relevant fact, and
2. That the statement must fall under any one of the following classes;
(a) A statement as to any circumstances of the transaction which resulted in the death of maker; (when it relate to cause of death) (dying declaration)
(b) A statement made in ordinary course of business;
(c) A statement which is against the pec- -uniary or proprietary interest of the maker, or which exposes him to a crim- -inal prosecution or a suit for damages;
(d) A statement giving the opinion of the per- -son before the commencement of the controversy, as to the existence of any public right or custom or matter of public
or general interest, of the existence of which, if it existed, he would have been likely to be aware;
(e) A statement, made before the commen- -cement of the controversy, as to the relationship of persons, if the maker of the statement has special means of knowledge on the subject;
(f) A statement, made before the commen- -cement of the controversy, as to the relationship of the persons deceased, made in any will or deed relating to aff- -airs of the family to which any such deceased person belonged, or in any family pedigree, or on any tombstone, or family portrait etc;
(g) A statement, in any will, deed or other document relating to any transaction by which a right or custom was created, claimed, modified, recognized, asserted or denied or which was inconsistent with its existence;
(h) A statement made by number of persons and expressing their feelings, or impress- -ions. (Article 46)
The statements in the form of electronic documents, generated, received of recorded by automated information system while it is working order, are relevant facts (Article 46-A).
Likewise, Article 47 makes an evidence given by a witness in a judicial proceedings or before a person authorized by law to take it, is relevant for the purpose of proving its truth of the fact; provided that:-
(1) The proceedings was between the same parties or their representative-in-interest;
(2) The adverse party in the first proceeding had the right and opportunity of cross-examine, and
(3) The questions in issue were substantially the same in the first proceeding as in the proceeding in which the deposition is sought to be given in evidence.
4.7 SPECIAL CIRCUMSTANCES
4.7.1. Statements made under special circumstances
The statements becoming relevant on account of their having been made under special circumstances fall under the following categories:-
a) Entries made in book of account regularly kept in the course of business, but such statements are not alone sufficient to charge any person with liability (Article 48).
b) Entries made in public or official book, register or record by a public servant in discharge of his official duty, or by any other person in performance of duty specially enjoined by the law (Article 49).
c) Entries made in published maps or charts generally offered for public sale, or in maps and plans made under the authority of the Federal or provincial Government (Article 50).
d) Statements made in a recital contained in any Act of the Federal legislature or of any other legislative authority in Pakistan or in a Government notification appearing in the official Gazette (Article 51).
e) Statements as to foreign law contained in a book printed or published under the authority of Government of such country, and to contain any law, and any report of a ruling of the Courts of such country contained in a law report (Article 52).
4.8 STATEMENT TO BE PROVED
4.8.1. Relate to fact in issue or relevant fact
Statement forms part of a longer statement, or of a conversation or part of an isolated document of longer statement, or is contained in a document part of a book, or of a connected series of letters or papers, evidence shall be given of so much of the statement conversation, document book or series of letters or paper, that is fact-in-issue or relevant fact (Article 53).
4.9 RELEVANCY OF JUDGMENTS
4.9.1. Judgments when relevant
The judgments, orders or decrees of the Court are irrelevant, unless:-
1. The judgment, decree, or order bars a trial or inquiry in subsequent suit between the same party on the same issue [principle ofres-judicata] (Article 54)
2. The judgment passed by a Court p| exercise of its Probate, Matrimonial, Admiralty, or Insolvency juris- -diction, and the judgment confers upon or takes away from, any person any legal character, or dec- -lares any person to be entitled to any such character, it is conclusive proof of the conferment, declaration or taking away of that legal character. If any such judgment declares any person to be entitle to any specific thing, not as against any specified person but absolutely, is relevant when the exis­tence of any such legal character, or the title of such person to anything, is relevant. The judgment is conclusive proof of the fact that the thing was the property of the person at the time from which judg- -ment declares that it had been or should be his pro- -perty (Article 55).

3. The judgment, order or decree are relevant if they relate to the matters of a public nature relevant to inquiry; but such judgments, orders or decrees are not conclusive proof of that which they state (Article
56) .
4. The judgments, orders or decrees other those mentioned in Articles 54, 55 and 56 the existence of such judgment, orders or decrees is a fact-in-issue, or is relevant under other rule of relevancy (Article
57) .
5. The judgment, order or decree relevant under Articles 54, 55 or 56 and have been proved by ad- -verse party, was delivered by a Court not com- -petent to deliver it, or was obtained by fraud or collusion may be proved (Article 58).
4.10 RELEVANCY OF OPINION
4.10.1. Introduction
The general rule is that opinion, whether on a matter of fact or law, is irrelevant. There are, however, many a matter which become relevant in judicial inquires, and which opinion can be formed by person only by going a course of training in the subject. Obviously, therefore, on matters requiring special skill and knowledge, the Court should not be denied the assistance of experts in coming to a right conclusion.
4.10.2. Expert’s opinion
Article 59 makes the opinion of “Expert” relevant on question of foreign law, or of science or art or of identity of handwriting or finger impressions. Likewise, Article 60 makes the facts, relevant if they support or are inconsistence with the opinions of experts, when such opinions are relevant.
In addition to the opinion of experts, opinion is relevant in the following cases:-
1. Opinion as to the handwriting of a person, if the person giving the opinion is acquainted with the handwriting of the person in question (Article 61).
2. Opinion as of any general right and custom, if the person giving the opinion is likely to be aware of the existence of such right or custom (Article 62).
3. Opinions of persons having special means of knowledge as to:-
(a) the usages, tenets of body of men or family;
(b) the Constitution and Government of any reli- -gious or charitable foundation;
(c) the meaning of words and terms used in parti- -cular district or by particular classes of people (Article 63).
4. Opinions expressed by conduct, as to the existence of any relationship by a person who, as a member of the family or otherwise, has special means of know- -ledge on the subject (Article 64). Whenever the opinion of a any living person is relevant the grounds on which such opinion is based are also relevant (Article 65).
4.11 RELEVANCY OF CHARACTER
4.11.1. Person’s character
The character is relevant in the following cases:-
a) Good character of the accused (Article 67).
b) Bad character of accused, only in reply to evidence of good character (Article 68)
Explanation 1- This Article does not apply to cases in where the bad character of any person is itself a fact in issue.
Explanation 2- A previous conviction is relevant as evidence of bad character.
c) In civil cases, character is irrelevant, except insofar as such character appears from the fact relevant (Article 66), and the character of
any person is such as to affect the amount of damages which he ought to receive (Article 69).
4.12 EVIDENCE
4.12.1. Introduction
The Order has broadly classified evidence, in two compart- -ments as appears from its definition, (i) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of facts under inquiry; such statements are called oral evidence, (ii) All documents produced for the inspection of the Court; such documents are called documentary evidence.
4.12.2. Oral evidence
All facts, except the contents of documents, may be proved by oral evidence (Article 70). That must, in all cases whatever be direct; that is to say:-
If it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it;
If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it;
If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says that he perceived it by that sense or in that manner;
If it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds;
Unless the opinions of an expert expressed in a treatise commonly offered for sale, and the grounds on which such opinions are held may be proved by production of such treatises if the author is dead or can’t be found, or has become incapable of giving evidence, or can’t be called as a witness without an amount of delay or expense:
If oral evidence refers to the existence or condition of any material thing other than a document, the Court may, require the production of such thing for its inspection:
A party shall have the right to produce Shahada ala al- shahada by which a witness can appoint two witnesses to depose on his behalf, except in cases of Hudood, where a witness is dead or can’t be found or has become incapable of giving evidence, or his attendance can’t be, procured without an amount of delay or expense.
4.12.3. Documentary evidence
The Order recognizes two mode of proof of contents of documents either by primary or secondary evidence (Article 72). Article 73 defines “primary evidence” that means the document itself produced for the inspection of the Court.
Explanation 1 - Where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2- Where a number of documents are made by one uniform process such as printing, lithography or photography, each is primary evidence of the contents of the rest, save all copies of a common original.
Explanation 3- A printed or other form of output of an automated information system shall be primary evidence, if the automated information system was in working order at all the material time, and it shall be presumed, in the absence of evidence to the contrary, that the automated information system was in working order at all the material times.
Explanation 4- A printout or other form of reproduction of an electronic document, other than the document mentioned in explanation 3: first generated, sent, received or stored in electronic form shall be treated as primary evidence where a security procedure was applied thereto at the time it was generated, sent, received or stored.
4.12.4. Secondary evidence, defined
Likewise, Article 74 defines “Secondary evidence” means and includes:-
(1) Certified copies given under the provisions hereafter;
(2) Copies made from the original by mechanical process which themselves insure the accuracy of the copy and copies compared with such copies;
(3) Copies made from or compared with the original;
(4) Counterparts of documents as against the party who did not execute them; and
(5) Oral accounts of the document given by some person who has himself seen it.
4.12.5. Proof by primary evidence
Documents must be proved by primary evidence (Article 75) [by the production of the document for inspection by court], except in the cases mention in Article 76 and subject the provisions of article 77.
4.12.6. Secondary Evidence
Secondary evidence may be given of the existence, condition or contents of a document in the following cases:-
a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produced it, and when, after the notice, such person does not produce it;
b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest;
c) When the original has been destroyed or lost or when the party offering evidence of its contents can’t, for any other reason not arising from his own default or neglect, produce it in reasonable time;
d) When, due to the volume or bulk of the original, copies thereof have been made by means of micro-filming or other modern device;
e) When the original is of such a nature as not to be easily movable;
f) When the original is a public document within the meaning of Article 85;
g) When the original is a document of which a certified copy is permitted by this order, or by any other law in force in Pakistan, to be given in evidence;
h) When the original consist of numerous account or other documents which can’t conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
i) When the original document forming part of a judicial record is not available and only a
certified copy thereof is available, certified copy of that certified copy shall also be admissible as secondary evidence.
In case (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
In case (b) the written admission is admissible.
In case (f) or (g), certified copy of the documents, but no other kind of secondary evidence, is admissible.
In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents. (Article 78)
4.12.7. Notice rule
Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a) shall not be given unless a notice has been given to the party in possession or his advocate to produce the document.
Such notice shall be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court think fit to dispense with it:-
1. When the documents to be proved is itself a notice;
2. When from the nature of the case, the adverse party must know that he will be required to produce it;
3. When it appears or, is proved that the adverse party has obtained possession of the original by fraud or force;
4. When the adverse party or his agent has the original in Court;
5. When the adverse party or his agent has admitted the loss of the document;
6. When the person in possession of the document is out of reach of, or not subject to, the process of the Court (Article 77).
4.13 PROOFS OF
4.13.1. Signature & writing
If a document is alleged to be signed or to have been written by any person, the signature or the handwriting of that person's must be proved to be in his handwriting (Article 78). If an electronic document is alleged to be signed or to have been generated by any person through the use of an information system and where such allegation is denied, the application of a Security Procedure to the signature or the electronic document must be proved (Article 78-A).
4.13.2. Required by law to be attested
If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses be called to prove its execution, if both attesting witnesses be alive, and subject to process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with Registration Act, unless its execution is specifically denied (Article 79).
If no such attesting witness can be found, it must be proved that the witnesses have either died, or can’t be found and that the document was executed by the person who purport to have done so (Article 80). If the attesting witness denies or does not recollect the execution of the document, its execution may be proved by other evidence (Article 82).
An attested document not required by law to be attested may be proved as if it was unattested (Article 83).
The admissions of a party to an attested document of its execution by himself shall be sufficient proof of its execution (Article 81).
4.13.3. Comparison of signature, writing or seal
In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which is to be proved, although that signature, writing or seal has not been produced or proved for any other purpose.
The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person.
This Article applies also, with any necessary modifica- -tion, to finger- impressions (Article 84).
4.14 PUBLIC DOCUMENTS
4.14.1. Public documents
The following documents are Public Documents:-
(1) Documents forming part of Acts or records of the Acts—
(i) of the Sovereign authority;
(ii) of official bodies and tribunals; and
(iii) of public officers, legislative, judicial and executive, of any part of Pakistan, or of a foreign country;
(2) Public records kept in Pakistan of private documents;
(3) Documents forming part of the records of judicial proceedings;
(4) Documents required to be maintained by public servant under any law; and
(5) Registered documents to the execution whereof is not disputed;
(6) Certificate deposited in a repository pursuant to the provisions of the Electronic Transactions Ordinance 2002 (Article 85). All other documents are private (Article 86).
Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of legal fees therefore, together with a certificate written at the foot of such copy that it is true copy of such document, and such certificate shall be dated and subscribed by such officer with his name and official title, and shall be sealed, and such copies so certified shall be called certified copies.
Any officer, who is authorized to deliver such copies, shall be deemed to have the custody of such documents. Photo copy of Public document shall be admissible, if it has been certified to be true copy, by the officer who has the custody of the original.
Official notes and correspondence on copies thereof not being public documents, shall not be issued and shall not be admissible in any case (Article 87). Such certified copies may be produced in proof of the contents of the public documents of which they purport to be copies (Article 88).
4.14.2. Proof of other public documents
The following public documents may be proved as follows:-
(1) Act, order or notifications of the Federal Govern- -ment in any of its departments, or of any Provincial Government or any of its departments by the records of the departments, certified by the heads of those department respectively, or by any document to be printed by order of any such Government;
(2) The proceedings of the legislatures, by the journals of those bodies respectively, or by published Acts or abstracts or by copies to be printed by order of the Government concerned;
(3) The act of the Executive or the proceedings of the Legislature of foreign country, by journals published by their authority, or commonly received in that country as such or by a copy certified under the seal of that country or sovereign, or by a recognition thereof in some Federal Act;
(4) The proceedings of a municipal body in Pakistan by a copy of such proceeding, certified by the legal keeper thereof, or by a printed book purporting to be published by the authority of such body;
(5) Public documents of any other class in a foreign country, by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or a Pakistan Counsel or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law the foreign country (Article 89).
4.15 PRESUMPTIONS
4.15.1. Introduction
The Order does not deal with the subject of presumptions at one place. There are three types of presumptions as stated in Sub-Articles (7), (8) and (9) of Article 2, they are “may presume”, “shall presume” and “conclusive proof’. The subject of presumptions is closely allied to the subject of burden of proof. When the burden of proof of a fact is on a party, it may be said that there is presumption of as to the non-existence of the fact and where there is a presumption as to the existence of a fact, the burden of proving the non­existence of that fact is on the party who asserts its non­existence. When a presumption operates in favor of a party, the burden of proof is on opponent, and the burden of proof is on a party, there is a presumption operating in favor of the opponent.
4.15.2. Presumptions in law, what is?
Presumption of a fact is purely an inferring of that fact from other facts that are known. Presumptions are artificial rules, which stand in the place of poof until contrary be shown.
4.15.3. Presumptions, classification of
Presumptions are either of law or fact. Presumptions of law may again be divided into conclusive presumptions of law {presumptiones juriset de jure) or rebut table presumptions of law (presumptiones juris). Presumptions of fact are always rebuttable.
Presumptions are of three types:-
(I) Permissive presumptions or presumptions of facts.
(II) Compelling presumptions or presumptions of law (rebuttable)
(III) Irrebuttable presumptions of law or conclusive proof)
“Presumption of facts” are inference of certain fact pattern drawn of the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs. Article 129 is general article dealing with presumptions of this kind. It is not obligatory on the Court to draw a presumption of fact. In respect of such presumptions, the Order allows the judge discretion in each case to decide whether the fact which under Article 129 may be presumed, has been proved by virtue of that presumption. In case of “presumption of law” no discretion has been left to the Court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprove it. In case of “conclusive presumption of law”, the Order appears to create two such presumptions by Articles 55 and 128, where under a given rule of law, extreme evidential value has been assigned to a given piece of evidence. Where one fact is declared by law to be of conclusive proof of another, the Court can’t allow evidence to be given in rebuttal.
4.15.4. Presumptions of law (conclusive proof)
The Order recognizes such presumptions by Article 55 and 128. That a final judgment, order or decree of a competent Court of probate matrimonial, admiralty or insolvency
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Part Four - Shahadat (Evidence)
jurisdiction, which confers upon or takes away from any person any legal character, or which declares a person to be entitled to any such character. Such judgment, order or decree is conclusive proof that any legal character which it confers accrued at the time when such judgment, order or decree came into operation (Article 55).
Second conclusive proof is attached to legitimacy of birth during marriage. Article 128 states that the fact that any person was born during the continuance of a valid marriage between his mother and any man and not earlier than the expiration of six lunar months from the date of marriage, or within two years after dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate child of that man, unless—
The husband had refused, or refuses, to own child; or
The child was born after expiration of six lunar months from the date on which the woman had accepted that the period of iddat had come to end.
The provisions are inapplicable to a non-Muslim.
4.15.5. Presumption of law (rebuttable)
This kind of presumptions of law is, commonly, called rebut­table presumptions of law. These presumptions, like Irrebut­table presumptions of law, are intendments made by law, but unlike them, they only hold good until disproved. Rebuttable presumptions of law are indicated in the Order at several places by expression “shall presume”. Most of these presumptions relate to documents. Rules relating to burden of proof also are, in a sense, statements of rebuttable presumptions of law. The presumption of genuineness that attaches to documents is obligatory presumption and must be raised by the Court. The Court shall presume the genuineness to the following documents:-
(1) Certificate, and certified copies and other documents which are declared by law to be admissible as evidence of any particular fact; provided such documents are properly certified, are substantially in the form prescribed, and purport to be executed in the manner in that behalf (Article 90).
(2) A record of evidence or confession taken in accordance with law and signed by the recording Judge or magistrate (Article 91)
(3) Documents, purporting to be documents, direct- -ed by any law to be kept by any person, kept in the form required by law, and is produced from proper custody (Article 92).
(4) Maps and plans made by the authority of the Government (Article 93).
(5) Books printed or published under the authority of the Government of any country and containing any of the laws of that country, and every book to contain reports of decision of the Courts of such country (Article 94).
(6) A power-of-Attorney executed before and authenticated by a Notary Public, Pakistan Consul, or Judge or Magistrate, etc (Article 95).
(7) Document called for and not produced after notice to produce (Article 99).
The rule relating to burden of proof in the nature of reputable presumptions of law is contained in Article 121, whereby the Court shall presume the absence of the circumstances bringing the case of an accused within the ambit of General or special exceptions in the Penal code or any other law.
4.15.6. Presumptions of fact
Presumptions of facts are indicated in the Order by the expressions “may presume”. These presumptions are all discretionary and rebuttable. Most of the presumptions under this head also relate to documents (Articles 96, 97, 98 and 100 &101. The documents, referred in these Articles, in regard to which the Court may, if it so likes, raise a presumption, though the Court is not bound to do so, the presumption being permissive and not obligatory. The Court may presume that:-
(1) A properly certified copy of any judicial record of foreign country is genuine and accurate (Article 96).
(2) A book on a matter of public or general interest, or a published map or chart, was written and published by the person and at the time and place, by whom or at which it purports to have been written or published (Article 97).
(3) A message, forwarded from a telegraph office to the person to whom such message purports to be addressed, correspondents with a message deliver- -ed for transmission at the office from which the message purports to be sent though the Court can’t make any presumption as to the person by whom such message was delivered for transmission (Article 98).
(4) A thirty years old document coming from proper custody was duly executed by the person by whom it purports to be executed and attested (Article 100).
(5) The provisions of Article shall apply to such copy of a document referred to in that Article as is certified in the manner provided in Article 87(Article 101).
Other presumptions of this class are raised under Article 129. It may be described as the residuary Article
dealing with this subject and to which several instances of presumption are appended as illustrations. The term “presumption of fact” is used to designate an inference, affirmative or disaffirmative of the existence of some fact, drawn by a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially noticed, or admitted, or established by legal evidence to the satisfaction of the tribunal. The sources of presumptions of fact are; (I) the common course of natural events, (II) the Common course of human conduct, (III) the common course of public and private business. It is impossible to enumerate presumptions of fact, as they are co-extensive with the whole field of natural reasoning. Some of the important presump­tions of this class have been appended as illustrations to Article 129. These are:-
a) That a man who is in possession of stolen goods soon after a theft is either thief or the receiver of the stolen property knowing it to be stolen, unless he can account for his possession.
b) That an accomplice is unworthy of credit unless corroborated in material particulars.
c) That a bill of exchange was accepted or endorsed for good consideration.
d) That a thing or state of things once shown to be in existence is still in existence.
e) That judicial and official acts have been regularly performed.
f) That the common course of business has been followed in particular case.
g) That evidence could be and is not produced would if produced be unfavorable to the person withholding it.
h) That if a man refuses to answer a question which he is not compelled to answer by law the answer if given would be unfavorable to him.
i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.
4.16 EXCLUSION OF ORAL BY DOCUMENT
4.16.1. Principles
It goes without saying that documentary evidence is superior to oral evidence. That being so, the “best evidence rule” generally excludes oral evidence where documentary evidence existed. One instance of the application of the principle is that the contents of a document to be proved by primary evidence. The most important application of this principle is to be found in Articles 102 and 103 of the Order which makes documentary evidence exclusive evidence of certain matters and conclusive of certain matters. The Article 102 excludes oral evidence in proof of certain matters, whereas, Article 103 excludes the oral evidence for the purpose of contradicting, varying, adding to or subtracting the terms that have been proved by documentary evidence.
4.16.2. Evidence of terms of contract
Article 102 excludes oral evidence in proof of the terms of a contract, or of grant or of any other disposition of property, have been reduced to form of a document, and in all cases in which any matter is required by law to be reduced to the form of document, except by the document itself, or secondary evidence. Thus, in the Provinces in which the Transfer of Property Act is in force, sales, mortgages, gifts, etc, are required by law to be reduced into writing. Therefore, such transactions can’t be effected orally, and where so effected, can’t be proved by oral evidence.
Likewise, Article 103 makes oral evidence inadmissible to contradict, vary, add to or subtract from, the terms of contract, grant or disposition of property, if such terms having
reduced into writing, have been proved by primary or by secondary evidence. This rule excludes oral evidence in contradiction, variation, etc., of a document only between the parties to the document or their representative in interest. There are six provisos appended to Article 103, some of which are exceptions to, and others explanations of, the rule excluding oral evidence in contraction, variation etc, of a document. The provisos are:-
(1) Any fact which affect the validity of a contract or transfer, rendering it void or voidable, such as, fraud, intimidation, illegality, want of due execution, want of capacity, want or failure of consideration, or mistake in fact or law.
(2) The existence of any separate oral agreement as to any matter on which a document is silent, and not in consistent with its terms. The degree of formality of the document is a matter which must be taken into consideration in applying the proviso.
(3) A separate oral evidence constituting a condition precedent to the attaching of any obligation under a written contract, grant or disposition may be proved.
(4) A distinct subsequent oral agreement to resend or modify a contract, grant or disposition may be proved, unless:-
I. The contract, grantor disposition is a matter required by law to be reduced into writing, or
II. The contract, grant or disposition has actually been registered whether it is required by law to be registered or not.
(5) Any usage or custom by which incidents not expressly mentioned in a written contract are annexed to that contract may be proved, unless the annexing of such incident is expressly excluded by the document.
(6) Facts showing in what manner the language of a document is related to existing facts may be proved.
4.16.3. Ambiguities in documents
Ambiguities in documents are of two kinds: (I) Patent and (II) latent. If a document is ambiguous on the face of it, i.e. unintelligible or uncertain, the ambiguity is ‘Patent’. If the document ambiguous when read in the light of external circumstances, the ambiguity is ‘latent’. The general rule governing the admission of oral evidence to remove ambiguities in a document is that such evidence is not admissible if the ambiguity is a patent ambiguity, but it is admissible if the ambiguity is a latent ambiguity. From the general rule, the following may be drawn:-
1. When the language of a document is plain and applies to existing facts, evidence is inadmissible to show that it was not meant to apply to such facts, as there is no ambiguity at all in the document (Article 104).
2. When the language of a document, though plain in itself is unmeaning in reference to existing facts, evidence is admissible to show that the language was used in a peculiar sense, as the ambiguity is a latent (Article 105)
3. When the document was meant to apply only one out of several persons or things, evidence is admissible to show which of these person or things it was intended to apply (Article 105).
4. When the language of a document applies partly to one set of facts and partly to another, but the whole of it applies to neither, evidence may be given to show to which of two it was meant to apply (Article 107).
5. Evidence may be given to show the meaning of illegible or not commonly intelligible characters, of foreign, obsolete, technical, local and provincial expressions, of abbreviations and of words used in a peculiar sense (Article 108).
6. Evidence by third party of any fact tending to show a contemporaneous agreement varying the terms of the document (Article 109).
The special rules as to the construction of will under the provision of the Succession Act, 1925 are unaffected by the provision of this chapter of the Order (Article 110).
4.17 PROOF
4.17.1. Facts to be proved
It is fundamental rule that if there some assertion as to the existence of a fact, its existence must be proved to the satisfaction of the Court. The subject of proof may be divided into; (I) proof of facts other than contents of documents, and (II) proof of documents including, (i) proof of execution of documents, and (ii) proof of existence, condition and contents of documents. Therefore, the party who wishes the Court to believe in the existence of a fact must prove it. To this rule, there are, however, two exceptions:-
1. A fact which is admitted by the other party need not be proved (Article 113).
2. The facts of which the Court shall take ‘Judicial notice’ need not be proved (Article 111).
The Court shall take judicial notice of the following facts:-
a) All Pakistan laws;
b) Articles of war for the Armed Forces;
c) The course of proceeding of Central legislature and any legislature established under any law for the time being in Pakistan;
d) The seal of all the Courts in Pakistan and of all Courts out of Pakistan established by the authority of the Federal Government or the Government representative, the seals of Court of Admiralty and all maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by
any Act or Regulation having the force of law in Pakistan;
e) The accession to office, names, titles, functions and signature of the persons filling for the time being any public office in Pakistan, if the fact of their appointment to such office is notified in the official Gazette;
f) The existence, title and national flag of every State or Sovereign recognized by the Federal Govern- -ment;
g) The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the official Gazette;
h) The territories under the dominion of Pakistan;
i) The commencement, continuance and termination of hostilities between Pakistan and any other State or body of persons;
j) The name of the members and officers of the Court and of their deputies and subordinate officers and assistants and also of all the officers acting in execution of its process, and of all advocates and other persons authorized by law to appear or act before it;
k) The rule of the road on land or at sea.
In all cases referred above and also on all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books, or documents of reference.
If the Court is called upon by any person to take judicial notice of any fact, it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable to do so (Article 112).
4.18 BURDEN OF PROOF
4.18.1 Basic rules
When a fact has to be given in evidence then the question arise “whose duty is to prove that fact”? This question is the subject-matter of rules which are known by the name of rule relating to burden of proof. The order first formulates certain general rules on this subject and then considers the question of burden of proof in particular cases. The general rules relating to burden of proof are:-
1. Whoever desires the court to give judgment as to any right or liability dependent on the existence of facts which he asserts must prove that fact (Article 117).
2. The burden of proof lies on that person who would fail, if no evidence at all were given on either side (Article 118).
3. The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence (Article 119).
4. The burden of proof of any fact necessary to be proved in order to enable any person to give evidence of any fact is on the person who wishes to give such evidence (Article 120).
5. The burden of proving fact which brings the case of an accused person within an exception or a proviso is on the accused (Article 121).
6. When any fact is especially within the knowledge of a person the burden of proving that fact is upon him (Article 122).
The specific cases of burden of proof are as follows:-
1. If a man is shown to be alive within 30 years, the burden of prove that he is dead is on the person who asserts it (Article 123); but if it is shown that the person in question has not been heard of seven years by those who would have naturally heard of
him, the burden of proving that he is still alive is on the person who affirms it (Article 124).
2. Where any person is shown to have been acting as partners, landlord and tenant or principal and agent, the burden of proving that they have discontinued that relationship is on the person who asserts this fact (Article 125).
3. Where a person is shown in possession, the burden of proving that he is not the owner is on the person alleging this fact (Article 126).
4. Where one of the parties to a transaction stands to the other in a position of active confidence, the burden of proving good faith of the transaction is on the party standing to the other in that position (Article 127).
4.19 WITNESSES
4.19.1. Production of witnesses
The order in which witnesses to be produced is regulated by the rules of Civil and criminal procedure codes, and, in absence of such rules, it in the discretion of the Court (Article 130). The Court may ask a party how the fact of which he proposes to give evidence will, if proved, be relevant. If the relevancy or admissibility of some evidence depends upon proof of another fact, the later fact must ordinarily be proved first. In appropriate cases, however, the party may give an undertaking that the fact on which the relevancy/admissibility of the proposed evidence depends, will be produced later (Article 131).
4.19.2. Examination of witnesses
The examination of a witness by the party who calls him shall be called his “examination-in-chief’. The examination of a witness by adverse party shall be called his “cross- examination”. The examination of a witness subsequent to
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Part Four - Shahadat (Evidence)

the cross-examination by the party, who called him, shall be called his re-examination (Article 132). Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re­examined. Examination-in-chief must both relate to relevant fact, though the latter may not confined be confined to the facts to which the witness testified. Re-examination must be confined to the matters referred to in cross-examination, though, with the permission, it may extend to new matters, in which case the other party shall have the right of cross- examination (Article 133).
4.19.3. Called to produce a document
A person summoned to produce a document does not become a witness by the mere fact the he produces it and can’t be cross-examined unless and until he is called as a witness (Article 134).
4.19.4. Leading question
Any question suggesting the answer which the person putting it wishes or expects to receive is called a “leading question” (Article 135). Leading question shall not be asked examination-in-chief or in re-examination except with permission of the Court. The Court shall permit leading question as to matters which are introductory or undisputed, or which have, in its opinion, been already sufficiently proved (Article 137). Leading question may be asked in cross- examination (Article 138).
4.19.5. No oral evidence as to document
If a witness, while under examination, is about to make any statement as to the contents of any document, which in the opinion of the Court, ought to be produced, the adverse party may object to such evidence have been given until such document is produced, or until facts have been proved which
entitle the party to give secondary evidence of it. A witness may give oral evidence of statement made by other persons about the contents of the documents if such statements are in themselves relevant fact (Article 139).
4.19.6. Cross as to previous statement
A witness may be questioned in cross-examination as to previous statements made by him in writing or reduced into writing and relevant to matter in question without being shown, or being proved; but if it is intended to contradict him, his attention must be drawn to the writing by which it is intended to contradict him (Article 140).
4.19.7. Questions lawful in cross
When a witness is cross-examined, he may be asked any questions which tend—
(1) To test his veracity;
(2) To discover who he is and what is his position in life;
(3) To shake his credit, by injuring his character, although the answer to such question might expose him to a penalty or forfeiture (Article 141).
If any such question relate to, a matter relevant to the suit or proceeding, the provision of Article 15 shall apply (Article 142).
4.19.8. Roll of presiding officer
The Court to decide whether or not the witness be compel to answer the question, not relevant to the matter, which affect his credit by injuring the character, warn the witness that he is not obliged to answer it. In exercising its discretion, the Court shall be guided by the following considerations:- 1. Such questions are proper, If are of such nature that the truth of the imputation would seriously affect the opinion of the Court as to the credibility of the witness.
2. Such questions are improper if the imputation relates to matter so remote in time or of such character that would not affect the opinion of the Court as to the credibility of the witness.
3. Such questions are improper if there is great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence.
4. The Court may, if it sees fit, draw from the witness’s refusal to answer if given would be unfavorable (Article 143).
No question ought to be asked, unless the person asking it has reasonable grounds for thinking that imputation which it conveys is well-founded (Article 144). Any such question was asked without reasonable grounds, in the opinion of the Court, the matter nay be reported to the Bar Council (Article 145). Indecent or scandalous inquiries are forbidden, unless they relate facts in-issue or the matters necessary to be known in order to determine whether or not the facts in issue existed (Article 146). The Court shall not permit any question to any witness injuring his character of the person in respect of whom imputation has, or is alleged to have been made, or any other person, whether dead or alive, in whom he is interested, except in so far as any such question may be necessary for the purpose of determining the truth of the imputations alleged to have been made or published in cases of defamation, libel and slanders (Article 147), and so are the questions intended to insult or annoy or needlessly offensive in form (Article 148). If a question is asked merely to shake the credit of the witness by injuring his character, the answer to it is conclusive, in the sense that no evidence to contradict it can be given. There are, however, two exceptions to this rule:-
(1) If the witness denies a previous conviction, he may be contradicted by proving the conviction,
(2) If he denies the facts suggested, his answers may be contradicted.
Of course, a witness giving false answer to the questions asked with a view to shake his credit by injuring his character may be prosecuted for perjury (Article 149).
4.19.9. Impeaching credit of the witness
The credit of a witness may be impeached by the adverse party or with the consent of the Court by the party who calls him; [provided the Court has permitted that party to put any question to him which might be put in cross-examination (Articlel 50)] in the following ways:-
(1) By the testimony of the persons who swear that they know the witness to be unworthy of credit. A person declaring a witness to be unworthy of credit may not be give reasons, but he may be question as to such reasons in cross-examination and the answers thus given are not liable to contradicted, though if false, that may be form a foundation for his perjury;
(2) By the proof that the witness has been bribed, or has accepted the offer of bribe, or has received any other corrupt inducement to give his evidence;
(3) By proof of former statements inconsistent with any part of his evidence which is liable to be contradicted;
(4) When a man is prosecuted for rape or attempt to ravish, it may be shown that the prosecutorix was of generally immoral character (Article 151). fin view of promulgation of offence of Zina (enforcement of Hudoodj Ordinance, 1979, this provision of clause (4) is against of the principle of that lawl
A witness may be corroborated by:-
(I) Questioning him as to other facts which he observed at or near the time or place at which the relevant facts which he has testified occurred (Article 152);
(II) Proof of any previous statement relating to the fact made by him at or about the time when the fact took place or before any authority competent to investigate the fact (Articlel 53).
The credit of a person, whose statement is admitted under Article 46 or 47, may be impeached or confirmed in the same manner as the credit of a witness actually examined (Article154).
4.19.10. Refreshing memory
A witness may refresh his memory by referring to any document made or read by him at the time of the transaction, or so soon after that the transaction was at that time fresh in his memory. When a witness may refer to a document for refreshing his memory, he may, if there is sufficient reason for non-production of the original, refer to a copy of it with the permission of the Court. An expert may refresh his memory by reference to professional treaties (Article 155).
If the witness is sure that the facts were correctly recorded in any such document as has just been mentioned, he may testify to those facts from the document though he has no specific recollection of the facts (Article 156).
The document, by which a witness refreshes his memory, must be produced and shown to the adverse party, who may cross-examine the witness with reference to it (Article 157).
4.19.11. Production of document
A witness, who is summoned to produce a document, must bring the document to court, even if objected its production or to its admissibility. The validity of such objection shall be decided by the Court. The Court may inspect the document, unless it refers to matters of State, or take evidence to enable to determine its admissibility. The Court may, direct document to be translated while keeping its contents secret, unless the document is to be given in evidence (Article 158).
If a party gives a notice to the other party to produce a document and the document is produced, he is bound to give it in evidence if the party producing so likes (Article 159). On the other hand if a party does not produce a document which he is required by the other side to produce, he shall not be permitted subsequently to give the document in evidence, unless consented by opposite party or the order of the court. (Article 160).
4.19.12. Judge’s power to question or order production
The judge may ask any witness any questions, relevant or irrelevant, and the Court may order the production of any document. The parties are not entitled to object to any such question or order, nor without the leave of the Court, to cross-examine any witness upon any answer given in reply to any such question: But neither the answer to such questions nor such documents can be the basis of the judgment unless they are relevant. Further, the judge can’t compel a witness to answer any question or to produce any document, which the witness would be entitled to refuse to answer or produce under Articles 4 to 14 (privileges), if the questions were asked or the documents were called for by the adverse party; nor the judge ask any question which would be improper for any other person to ask under Article 143 or 144; nor shall he dispensed with primary evidence of any document, except in the case of secondary evidence (Article 161)
4.20 MISCELLANOUS
4.20.1 No new trial
The improper admission or rejection of evidence shall not be a ground for a new trial or reversal of any decision in any case, if the Court is of the opinion that there was sufficient evidence to justify the decision, or that, if the rejected evidence had been received, it ought not to have varied the decision (Article 162)
4.20.2. Oath in support of claim
When the plaintiff takes oath in support of his claim, the Court shall, on the application of the plaintiff, call upon the defendant to deny the claim on oath.
The Court may pass such order as to costs and other matters as it may deem fit.
Nothing in this Article applies to laws relating to the enforcement of Hudood or other criminal laws (Article 163).
4.20.3. Evidence of modern devices, etc.
The Court may allow to be produced any evidence that may have become available because of modern devices or techniques (Article 164).

Part V, Specifice Relief

5.5.1 Introduction
Part V deals with the specific Relief, a supplement to the Code of Civil Procedure, to define the law relating to specific and preventive relieves. It being adjective law contains in its fold codification of principles derived from long series of precedents and practice of English Court of Equity. Thus is based upon principles of equity, reasons and good conscience. Its leading principle is that “One who seeks equity must do equity”. The illustrations given in the Act are taken from the English Equity Reports.
It deals with suits for:-
possession of specific property, movable or immovable,
specific performance of agreements,
ratification of instruments,
rescission of contract,
cancellation of instruments,
declaratory decrees, and
perpetual injections as preventive relief.
5.5.2 Specific Relief how given
a) by taking possession of certain property and deliver­ing it to claimant;
b) by ordering a party to do the very act which he is under an obligation to do;
c) by preventing a party from doing that which he is under an obligation not to do; [Preventive relief]
d) by determining and declaring the rights of parties otherwise than an award of compensation; or
e) by appointing a receiver.
Specific relief can’t be granted for mere purpose of enforcing a Penal law. (Section 5, 6 and 7)
5.5.3. Recovering possession of property
Section 8 pertains relief of possession of immovable property based on title, whereas, Section 9 deals with relief of recovery of possession, if person in possession is dispossessed, without his consent, of immovable property otherwise than due course of law.
No suit under this Section shall be brought against Federal or Provincial Government.
No appeal shall lie from any order or decree passed in a suit filed under this Section, nor shall any review of any such order or decree be allowed.
Section 10 provides that a person entitle to the possession of specific movable property may recover the same in the manner prescribed by the Code of Civil Procedure.
5.5.4. Specific performance
The specific performance of any contract may in the discretion of the court be enforced:-
a) when the act agreed to be done is in the performance wholly or partly, or a trust;
b) when there exist no standard for ascertaining the actual damage caused by non -performance of the act agreed to be done;
c) when the act agreed to be done is such that pecuniary compensation for its non-performance would not afford adequate relief; and
d) when it is probable that pecuniary compensation can’t be got for the non-performance of the act agreed to be done (Section 12).
The specific performance can’t be refused in following cases:-
i. the contract of which the subject has partially ceased to exist (Section 13).
ii. specific performance of part of contract where unperformed is small (Section 14)
iii. specific performance of part of contract where part unperformed is large (Section 15).
iv. specific performance of independent part of contract (Section 16)
The Court shall not direct the specific performance of a contract (Section 17) except in cases covered by clauses (a) to (d) of Section 18. Compensation may be asked for breach, either in addition to, or in substitution for, such performance (Section 19). Likewise, liquidated damages not a bar to specific performance (Section 20).
The following contract can’t be specifically enforced:-
a) a contract for the non-performance of which compensation in money is an adequate relief;
b) a contract which runs into such minute or numerous details, or which is so dependent on personal quail- -fications or volition of the parties or otherwise from its nature is such, that the Court can’t enforce specific performance of its material terms.
c) a contract the terms of which the Court can’t find with reasonable certainty;
d) a contract which is in its nature revocable;
e) a contract made by trustees either in excess of their powers or in breach of their trust;
f) a contract made by or on behalf of a corporation or public company created for special purpose, or by the promoters of such company, which is in excess of its powers;
g) a contract the performance of which involves the performance of a continuous duty extending over a longer period than three years from its date;
h) a contract of which a material part of the subject- matter, supposed by both parties to exist, has before it has been made, ceased to exist (Section 21).
The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely it is lawful to do so. The discretion is not arbitrary but be on sound and reasonable, guided by judicial principles (Section 22). The Court may exercise discretion not to decree specific performance in cases enumerated in paras I to III of Section 22.
The specific performance of contract may be obtained by the person mentioned in clauses (a) to (h) of Section 23. Likewise, Section 24 says that specific performance of contract can’t be enforced in favor of persons mentioned in clauses (a) to (d).
5.5.5. Declaration of status or right
Any person entitle to any legal character, or to any rights as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the Court may in its discretion make therein a declaration that he is so entitle, and the plaintiff need not in such suit ask for any further relief.
Provided that no Court, shall make any such declaration, where the plaintiff being able to seek further relief than mere declaration of title, omits to do so.
A declaration made is binding on the parties to the suit, persons claiming through them respectively, and where any of the parties are trustees, on the person for whom, if in existence at the date of the declaration, such parties would be trustee (Section 43).

5.5.6. Receivers
Appointment of receiver in pending suit is the discretion of the Court. The mode of appointment, the rights, powers, duties and liabilities of receiver, are regulated by the Civil Procedure Code (Section 44).
5.5.7. Preventive Relief
Preventive relief is granted at the discretion of the Court by temporary or perpetual (Section 52). Temporary injunctions are granted for specified time or until further orders of the Court. It may be granted at any stage in a pending suit, and are regulated by the Code. Whereas, perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit, the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff (Section 53).
To prevent the breach of an obligation, which the Court is capable of enforcing, the Court may, in its discretion grant an injunction to prevent the breach complained of, and also compel performance of the requisite act (Section 55).
Perpetual injunction may be granted to prevent the breach of an obligation existing in favor of the plaintiff, whether expressly or impliedly.
When such obligation arises from contract, the Court’s discretion is controlled by the provisions of Chapter II of the Act.
The Court may grant perpetual injunction, where the defendant invades or threatens to invade the plaintiff’s right to or enjoyment of property, in the following cases:-
a) Where the defendant is trustee of the property for the plaintiff;
b) Where there exists no standard for ascertaining the actual damages caused, or likely to be caused, by the invasion;
c) Where the invasion is such that pecuniary compensation could not afford adequate relief;
d) Where it is probable that pecuniary compensation can’t be got for the invasion;
e) Where the injunction is necessary to prevent a multiplicity of judicial proceedings (Section 54).
5.5.8. Negative agreement, its performance
Where a contract comprises an affirmative agreement to do certain act coupled with a negative agreement, express or implied, not to do a certain act, where the Court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction, notwith­standing Section 56(f), to perform negative agreement, provided that the applicant has not failed to perform the contract so far binding on him (Section 57).
Note: It is common practice to use the term “Permanent injunction” instead of the term “Perpetual injunction”, the correct legal term is “Perpetual injunction".

Part VI, Limitation Act, 1908

6.1.1. Introduction
Before 1855, two system of limitation were administered by the Courts of sub-continent. In the territories within the original jurisdiction of the courts established by Royal Charter in the Presidency towns of Calcutta, Madras and Bombay, (now called Kolkata, Chennai and Mumbai) the English law, and in the Mofussil courts the law as laid down by the regulations, was administered. The first attempt to introduce a uniform law of limitation applicable alike to courts established by Royal Charters and the other Courts was made by Limitation Act, 1859. It was followed by Act; IX of 1871.lt was replaced by Act, XV of 1877. Finally, as a result of the decision of the Privy Council in Vasudeva v Srinivas, the question of consolidating and amending the law relation to the Limitation for suits, appeals and applications was taken up and this resulted in the passing of the Limitation Act of 1908 (Act of 1908). This Act was also amended from time to time particularly after the report of Civil Justice Committee of 1924-25. This is the Act now in force.
6.1.2. Limitation: it’s utility
It has been said that the Statute of Limitation is a statute of repose, peace and justice. It is one of repose because it extinguishes stale demands, and quiets title; in the words of John Voet, controversies are restricted to a fixed period of time least they should become immortal when men are mortal. It secures peace as it ensures security of rights; and it secures justice, as by lapse of time evidence in support of rights may have been destroyed. There can thus be no doubt that it rests on sound policy.
Lord Plunket, in striking metaphor, has explained law of prescription. “Time holds in one hand a scythe and in other, an hour-glass. The scythe mows downs the evidence of our rights, while the hour-glass measures the period which renders that evidence superfluous”. The metaphor could have been completed by adding that “the framework of the hour-glass would certainly decay, the glass be broken, and the sand scape”, as commented by the author of third law commission report.
6.1.3. Analysis of the act
The Act originally consists of 30 sections and 183 articles. The Section deal with general principles applicable to extension of time whether by reason of disability or by acknowledgment and part-payment, and they are divided into five parts. Part- I is preliminary, Part- II (Section 3 to 11) deals with limitation of suits, appeals, and applications, Part- Ill (Section 12 to 25) deals with computation of period of limitation, Part-IV (Section 26 and 27) deals with Acquisition of easement rights, Part-V (Section 29) deals with savings.
Of the183 articles, Arts. 1 to 149 relates to suits (the first division), Arts. 150 to 157 relate to appeals (second division) and 158 to 183 relates to applications (third division) the articles relating to suits are divided into 10 parts on the basis of period of limitation and not on the basis of nature of suits. The period ranges from 30 days to 60 years. For appeals, there are six periods ranging from 7 days to 6 months. For applications there are nine periods ranging from 10 days to 12 years.
6.2 LIMITATION
6.2.1. Dismissal of suit
Section 3 enjoins upon the court, subject to the provisions contained in sections 4 to 25, to dismiss the suit, appeal or application filed after the period of limitation prescribed therefore by the first schedule.
6.2.2. Continuous running of time
Section 9 says once the time has begun no subsequent disability or inability to sue stops it.
6.2.3. Legal disability, effect of
A minor, or insane, or an idiot, may institute the suit or proceeding or make the application within the same time after the disability has ceased. If a person is affected by two disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application, when both disabilities have ceased. Where disability continues up to the death of such person, his legal representative may institute the suit or make the application. If he is under the disability, the rule of sub­sections (1) and (2) shall apply (Section 6). Where one of several persons jointly entitled to institute a suit or proceedings or make application for execution of a decree, is under any such disability, and a discharge can be given without the concurrence of such person will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of given such discharge without concurrence of others or until the disability has ceased (Section 7). Nothing in Sections 6 and 7 applies to suits to enforce right of pre­emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period within which any suit must be instituted or application made.
6.3 EXTENSION AND EXCLUSION
6.3.1. Extension of period
When the appellant or the applicant satisfies the Court that he had “sufficient cause” for not preferring the appeal or making the application within the period prescribed for an appeal or application for a revision or a review of judgment or leave to appeal, the Court may admit the same.
6.3.2. Exclusion of time
Section 12 provides the exclusion of time in legal proceed- -ings. In computing the period of limitation prescribed for any suit, appeal or application, the day from which such period is to be reckoned shall be excluded. Likewise, in computing the period of limitation prescribed for an appeal, an application for leave to appeal and an application for a review of judgment, the day on which judgment complaint of was announced, and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be reviewed be excluded. The time requisite for obtaining copy of judgment on which it is founded shall be excluded. The time requisite for obtaining a copy of the award shall be excluded, in computing the period of limitation prescribed for an application to set-a-side an award.
6.3.3. Exclusion due to defendant’s absence
The time during which the defendant has been absent from Pakistan shall be excluded, in computing the period of limitation prescribed for any suit (Section 13). Likewise, the period of stay of proceeding shall be excluded (Section 15).
6.3.4. Exclusion of time of bonafide proceedings
In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where such proceeding is good faith in a Court which, from defect of jurisdiction, or other cause of like nature, is unable to entertain it (Section 14).
6.4 FRAUD
6.4.1. Effect of fraud
Where any person having a right to institute a suit or make an application has, by means of fraud, been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application-
a) Against the person guilty of the fraud or accessory thereto, or
b) Against any person claiming through him otherwise than in good faith and for a valuable consideration,
Shall be computed from the time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when he first had the means of producing it or compelling its production (Section 18).
6.5 EFFECT OF ACKNOWLEGMENT OR PAYMENT
6.5.1. Acknowledgment in writing
Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed.
“Signed” means signed either personally or by an agent duly authorized in this behalf. If such acknowledgment is undated, oral evidence may be given of the time when it was signed, subject to the provisions of Qanun-e-Shahadat (Section 19).
6.5.2. Effect of payment
Where payment on account of a debt or interest on a legacy is made before the expiration of the period limitation by the person liable to pay the debt or legacy, or by his duly authorized agent, a fresh period of limitation shall be computed from the time when the payment was made (Section 20). The expression “agent duly authorized in this behalf’ used in Sections 19 and 20, include his lawful guard- nan, committee or manager, or an agent duly authorized by such guardian, committee or manager to sign the acknow­ledgement or make the payment (Section 21).
6.6 SUBSTITUTION Etc.
6.6.1. Effect of substitution and addition
Where, after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regard him, be deemed to have been instituted when he was so made party, save a case where a party is added or substituted owing to an assignment or devolution of any interest during the pendency of a suit or where transposition of the parties has been done (Section 22).
6.6.2. Continuing breaches and wrong
In case of continuing breach of contract and in case of a continuing wrong independent of contract, a fresh period of limitation begin to run at every moment of the time during which the breach or the wrong, as the case may be, continues (Section 23).
6.6.3. Act not actionable without special damage
In a case of a suit for compensation for an act which does not give rise to a cause of action unless some specific injury actually result there from, the period of limitation shall be computed from the time when the injury results (Section 24).
6.7 SAVINGS
6.7.1. Savings
Nothing in this Act shall affect Section 25 of the Contract Act, 1872.
The provisions contained in Section 4, Sections 9 to 18 and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local laws.
Nothing in this Act shall apply to suits under the Divorce Act (IV of 1869).
Sections 26 and 27 and the definition of “easement” in Section 2 shall not apply to the cases arising in territories to which the Easement Act, 1882, may for the time being extended.
Note-The provision of Section 28 has been omitted, being against the injunctions of Islam and the provisions of Sections 26 and 27 are not applicable to the Province of Sindh by virtue of Easement Act. 1882 (v of 18821.

Part VII, Criminal Procedure Code 1898

PART SEVEN
CRIMINAL
(Code of Criminal Procedure, 1898)
Part VII of this manual deals with the working of Criminal Courts in general with a brief introduction of various Criminal Courts in Chapter 7.1 Trial Court. First Information Report puts the machinery into motion for investigation of a crime, which is the backbone of a criminal case, duties of investi- -gating officers and powers of a Court during investigation can be gathered in Chapter 7.2 INVESTIGATION.
Chapter 7.3 ARREST AND APPEARANCE deals with the power, mode and manner of dealing with offenders. It further describes the role of the Court when an offender is arrested and control of investigation up to arrest. The important part after arrest, namely, grant of remand to police custody, grant or denial of bail, the procedure and power and limitations of the Court is the subject matter of Chapter 7.4 BAIL. The following Chapter is the crystallization of the offence, which is called a charge and what is to be made an accusation is discussed in Chapter 7.5 THE CHARGE. Since the Code provides procedure for trial of offences, Chapter 7.6 THE TRIAL gives an insight to the legalities involved. It is followed by another chapter, namely, the recording of evidence to ascertain the guilt or otherwise of an accused and the specific mandate of law for taking evidence could be looked in Chapter 7.7 EVIDENCE. Rules and guidelines governing decision making, the necessary procedure to be followed in writing down the formal opinion of a Court after closure of the entire case is explained in Chapter 7.8 THE DECISION. After a Court gives its findings, factors that need to be considered while awarding punishment are discussed in Chapter 7.9 SENTENCING PRICIPLES. Various forms of sentences allowed under law are the subject of Chapter 7.10 TYPES OF SENTENCES. Powers of the Court to make ancillary orders can be found in Chapter 7.11 ANCILLARY
ORDERS. What succeeds is Chapter 7.12 MISCELLAN- -EOUS PROVISIONS. A Chapter dealing with prevention of offences and how the Code is PART III - CRIMINAL envisaged for the purpose of empowering such officers is dealt with in Chapter 7.13 PREVENTION OF OFFENCES. Powers of Sessions Courts in the matters of granting bail, pre-arrest protection, powers in appeals, and revisionary powers are specified in Chapter 7.14 SESSIONS / ADDITIONAL SESSIONS JUDGES. The special Court to deal with delinquent juvenile and their powers are discussed in Chapter 7.15 JUVENILES.
Abbreviations:
1. Code: Code of Criminal Procedure
2. Penal Code: Pakistan Penal Code
3. Unless and until specifically mentioned all Sec­tions are of the Code
4. In Chapter 7.15 all references to Sections are to Juvenile Justice System Ordinance, of 2000
7.1 TRIAL COURTS
7.1.1. Criminal jurisdiction
In Province of Sindh, Session Division is comprised of a district, headed by a Sessions Judge. He is assisted by a number of Additional Sessions Judges and Assistant Sessions Judges from Provincial Judiciary, posted by High Court. He allocates cases to the Additional Sessions Judges and Assistant Sessions Judges. In each district Judicial Magistrates are. posted by High Court from amongst the members of Provincial Judicial Service. Each Judicial Magistrates are assigned jurisdiction comprised of number police stations with power to take cognizance of offences and try the accused if such offence is triable by Magistrate. If an offence is exclusively triable by a Court of sessions, the Magistrate shall, without recording evidence, send the case to the Court of Sessions for trial.
7.1.2. Powers of magistrates
Offences under the Pakistan Penal Code, which are triable by Magistrate, are set out in the eighth column of the Second Schedule to the Code. Generally offences punishable with imprisonment up to three years and fine up to Rs. 45,000/- are triable by Judicial Magistrates. The Magistrates should look into the powers as provided under Sections 32 to 37 of the Code.
7.1.3. Sources of power
It is essential that all relevant Acts are available to the Presiding Officer. In addition to these primary sources, judicial officers should seek to ensure that they are kept informed of decisions of their superior courts. Specifically, they are encouraged to seek out and refer to the Rules framed by the High Court, setting out instructions to criminal and civil courts.
7.1.4. Offences affecting administration of justice
Procedure in cases affecting the administration of justice is dealt with in Sections 476, 467-A, 480 to 487 of Chapter XXXV of the Code. Caution is advised when effectively dealing with a class of offences in substance amounting to contempt. While dealing with such offences, the object must be to promote justice rather than to retaliate.
7.1.5. Adversarial system
The system under which the Courts in Pakistan function is adversarial. This system implies, as far as the criminal trials are concerned, that the Court’s function is only to decide whether the person accused of an offence is guilty or not. If the Court is satisfied that the offence in question has been committed but the person accused before it is not the offender or there is a reasonable doubt about his involvement in the commission of the offence, it is not for the Court to find out who the offender may be. That is the duty of the police or that of complainant as the case may be. Advocates will assist the Court normally, one representing the prose­cution and the other representing the accused. If an accused/under trial is unable to engage Counsel, the Court has to provide him a Counsel either from Legal Aid or appointing an advocate as amicus curiae. Sometimes, the complainant may also engage a counsel to represent him in a police case. The counsels are there to assist the prosecution with the permission of the Court, on the basis of their respective points of view. The Court should not attempt to make up the deficiencies of one side or the other. However, the Court may call for a document or a witness, if considered necessary for promoting the cause of justice.
7.1.6. Role of advocates
Although the counsel is engaged by his client to present his case, he should not forget that he is also an officer of the Court. Counsel’s duty is to present his client’s case in the best possible light but remain within the framework of law and standards of professional conduct and etiquette. This means that he should render full assistance to the Court in the conduct of the case in which he is appearing. Counsel should show the Court and others respect and courtesy. Even in cross-examination where they are seeking to discredit a witness they should not bully them or be abusive.
7.1.7. Public prosecutor
Counsel for the prosecution should place the case impartially before the Court. Whilst it is their duty to prosecute, not defend the accused they are also under a duty to assist the Court in arriving at a decision, which is consistent with truth and justice. This means all relevant facts should be placed before the Court. A prosecutor should not withhold a witness’s name or any other evidence from the Court that comes to his notice even if it is detrimental to his case.
7.1.8. Individual case management
Management of the cases is the responsibility of the Presiding Officer. The Presiding Officer should be conscious at all times of the number of cases in his Court and the stage at which each case is. He should maintain the Court diary himself with details of the cases for each day and he must consult this before fixing any case to ensure that the case will proceed. If the accused is in custody, it is the Court’s responsibility to ensure that he is not incarcerated unnecessarily. Even if on bail, the Court should remind itself that having a criminal case pending is an ordeal which should be resolved speedily.
7.1.9. Arrangement of the cause list
It might be prudent of a Presiding Officer to ensure, as far as possible, that his list of cases is arranged in a manner that causes the least inconvenience to the parties. For example, the cases in which process is to be served on one party or the other may be taken up first and the cases in which evidence is to be recorded taken last. Where hearings involve production of the accused from jail or where witnesses are required to attend the case, it may be taken up a little later in the day. It is always wise to have a routine to be followed. Each Presiding Officer should fix a schedule for his court work showing exactly what time is allocated for different types of cases or applications. This kind of schedule assists all Court users but it is important that the schedule is circulated and known, particularly by the advocates.
7.1.10. Overview of a criminal case
Where the liberty of a citizen is at stake, the primary duty of the Court must be to ensure that the case is processed as expeditiously as is practicable. When information about the commission of an offence is received, the police commence investigation. If an arrest is made, the question of a remand or bail will arise. If a remand is to be applied for, the Court must be informed and a decision of police custody must be addressed. When the investigation is complete, the Court will inspect the charge sheet and if satisfied there is sufficient evidence to commence a trial the case will proceed. The accused is brought before the Court and the charge(s) framed. A plea is taken and if not guilty, the trial will proceed.
Presiding Officers must ensure that only those cases where there is sufficient evidence to proceed are taken forward. At any stage, where the Court is satisfied that no sufficient evidence exists or there is no possibility of conviction the Court must exercise it power under Section 249-A or 265-K of the Code and acquit the accused. The Courts can save much time and effort by weeding out weak cases at the earliest stage.
7.2 INVESTIGATION
7.2.1. Generally
Section 4(l) defines “Investigation” which has a very wide connotation and is not limited to police investigation. It includes all the proceedings under the Code for the collection of evidence by a police officer or any other person (other than a Magistrate) who is authorized by a Magistrate in this behalf. Some special statutes also confer the power of investigation on specified persons, such as, the offences under custom Act. It has its own procedure right from report up to trial of offender. First information Report puts the machinery (Investigation) into motion in detecting the crime and bringing the offender to trial. Investigation of an offence generally consists of:
1. Proceeding to the spot, after report;
2. Ascertaining the facts and circumstances of a case;
3. Discovery and arrest of a suspected offender;
4. Collection of evidence relating to the commission of an offence, which may consist of:
i. Examination of various persons (including an accused) and recording their statement, if the officer thinks fit,
ii. Search of places or seizure of things considered necessary for the investigation or to be produced at the trial; and
5. Formation of opinion as to whether, on the basis of material collected, there is a case to place the accused before a Magistrate for trial, and if so, taking necessary steps for filing a charge-sheet under Section 173.
7.2.2 First Information Report (F.I.R.)
Any person can give information relating to a cognizable offence orally or other wise to an Officer in charge of Police Station. Section 154 provides the manner in which it is to be recorded in a book prescribed by the Provincial Government. Likewise Section 155 provides the mode of recording of information of a non-cognizable offence by Officer- in charge of a Police Station and its communication to the Magistrate. But such offences shall not to be investigated by Police without the order of a Magistrate. The First Information Report, in respect of a cognizable offence, sets the machinery of criminal justice system into motion. F.I.R. is not substantive evidence but it can be used to corroborate an informant or to contradict him, if he is called as a witness to a trial. Even telephonic information to Police has to be treated as a F.I.R. In case a police officer in charge of police station refuses to record an information report, a remedy is provided under Sub-Section 6 of Section 22, for an appropriate direction by Sessions Judge on a complaint regarding non­registration of a criminal case.
7.2.3. Power of the police to investigate
The public is duty bound to give information to the police about the commission of an offence. An investigating officer can require the attendance of persons acquainted with the facts and circumstances of a case under investigation (Section 160). He can examine witnesses and record their statements (Section 161). He has power to arrest, search and seize, but these powers are subject to reasonable restrictions and controls. The Code prescribes a procedure for recording statements and confessions made during investigations. A statement to the police is not required to be signed and can be used only for contradicting a prosecution witness as indicated in Article 140 of Qunaun-Shahadat Order and for no other purpose. The sessions Judge as ex officio Justice of Peace may transfer an investigation from one police officer to another on complaint under Section 22 (6).
7.2.4. Distinction between cognizable and non- cognizable offences
Police officers have the power and duty to investigate all cognizable offences (Section 4 (f)), but they are enjoined not to investigate non-cognizable offences without an order of a Magistrate (Section 155(2)).A Magistrate empowered under Section 190 may order an investigation and direct the police to investigate it (Section 156(3)). A Court either inquire into the case itself or direct an inquiry or investigation to be made by a Justice of Peace or by a Police-Officer, or by such other person as it think fit for the purpose of ascertaining the truth or falsehood of complaint (Section 202(1)),and such person shall have for that investigation, all the powers conferred on an officer-in-charge of a police station except the power to arrest without a warrant(Section 202(3)).An investigation has to be carried out within the limits of the law, without causing any harassment to the accused and to the witnesses and it has to be completed without unnecessary or undue delay. An investigation has to be speedy and just. When an offence is disclosed, an investigation into it must necessarily follow in the interests of justice and the Court will not normally interfere with an investigation. If, however, the materials do not disclose an offence, an investigation cannot be permit- -ed, as in the absence of any offence, unnecessary harassment is caused to a party whose liberty and property may be put in jeopardy. In a complaint, when a thorough investigation by the police is required, it can be referred by a Magistrate to the police for investigation (Section 202(1))
7.2.5. Role of police in non-cognizable cases
In case of a non-cognizable offence, information given to the police shall be entered in a book prescribed for that purpose and the police will refer the information to a Magistrate (Section 155 (1)). The Magistrate is required to consider the totality of circumstances and decide whether it would be just and proper to ask the police to investigate a non-cognizable offence. When a Magistrate orders an investigation, a police officer can exercise the same powers as in the case of a cognizable offence, except the power to arrest without warrant (Section 155 (3)).
7.2.6. Control of delay in investigation
It is the requirement of law that an accused can’t be detained in custody for more than twenty- four hours; the person so arrested has to be produced before a Magistrate within 24 hours (Sections 60 & 61). When investigation can’t be completed within twenty- four hours, the investigating officer shall produce the accused to the nearest Magistrate with copies of entries in the investigation dairy. The Magistrate, if he thinks fit, from time to time, may give police remand for a period not exceeding fifteen days in the whole, reasons has to be recorded.
Furthermore, an accused cannot remain in police custody beyond a total period of 15 days under any circum- -stances irrespective of the gravity or seriousness of the offence. Provided, if the accused is a female, the Magistrate shall not, except in the cases involving qatl or dacoity, authorize the detention of the female accused in police custody, and she shall be interrogated by Investigating Officer in prison in presence of officer of jail and a female police officer (Section 167). Where it appears to the police that there is no sufficient evidence to justify the forwarding the accused to Magistrate, he may release the accused by taking a bond with or without sureties with direction to appear before a Magistrate empowered to take cognizance (Section 169). Section 173(1) requires that an investigation has to be completed without unnecessary delay, and as soon as it is completed, the charge sheet shall be, through the Public Prosecutor forwarded the Magistrate empowered to take cognizance. Provided that, where investigation is not completed within fourteen day from the date of Report, an interim charge sheet has to be submitted stating therein the result of the investigation made until then, the court may commence the trial on the basis of interim charge sheet if decides otherwise has to record the reasons.
7.2.7. Daily diary
Section 172 (1) enjoins upon every police officer making an investigation shall day to day enter his proceedings in the investigation in a Diary, setting forth;
I. The time of information reached him;
II. The time on which he began and closed his investigation;
III. The place or places visited by him; and
IV. A statement of the circumstances ascertained through his investigation.
The Court may send for the police dairy of a case under an inquiry or a trial, and may use such dairies, not as evidence but to aid it in such inquiry or trial. Neither the accused or his agents shall be entitled to call for such dairies, nor shall he or the agents be entitled to see them, but if they are used by the investigating officer, to refresh his memory or the Court uses them for the purpose of contra- -dicting such police officer, the provisions of Qunaun- Shahadat Order 1984, Article 155 or Article 140, as the case may be shall apply (Section 172). The entries in a police diary are required to be made with promptness mentioning all significant facts in a chronological order and with complete objectivity. Public interest demands that entries in the daily diaries are not made available to an accused for it might endanger the safety of an informant who has assisted the investigating agency. Failure on the part of an investigating officer to comply with the provisions of Section 172 is a serious lapse, which diminishes the value and credibility of an investigation.
7.2.8. Search
Under Section 103, a police officer making an investigation is empowered to search any place within the limits of such station if he has reasonable grounds for believing that anything necessary for the purpose of investigation may be found. He shall call upon two or more respectable inhabitants of the locality to attend and witness the search. The search shall be made in their presence, and a list of all the things seized in search shall be prepared by such officer and signed by such witnesses. If personal search is taken under Section 102(3), a list of all the things taken possession of shall be prepared and a copy thereof shall be delivered to such person. The procedure regarding general search is contained in Section 101. The processes to compel production of document and other movable property, is provided in Section 94 of Chapter vii of the Code. Search warrant may be issued under Section 96, if there are reasonable grounds to believe that a person to whom summons or an order under Section 94 or a requisition under Section 95 is issued will not produce such document or thing as required or where such documents or things are not known to the Court to be in the possession of any person or if it appears that the purpose of any enquiry, trial or other proceeding under the Code would be served by a general search or inspection.
The Court has to be satisfied that things to be searched are in respect of which an offence has been or is suspected to have been committed or if these things will be evidence as to the commission of any such offence or these things are intended to be used for committing any such offence. Court has to apply his mind and should give reasons for issuance of search warrants because a search is a coercive method involving invasion of the sanctity and privacy of a citizen’s home or premises. Therefore, the power to issue a search warrant should be exercised with all due care and circumspection.
7.2.9. Search of persons wrongly confined
Section 100 specifically confers powers on Magistrates to issue search warrants for a person illegally confined. When a person who is illegally confined is found, he should be produced before a Magistrate who may pass appropriate orders. Whenever illegal detention of any person is alleged before a Magistrate, he may issue search warrants.
7.2.10. Power to record confessions
Section 162 virtually disallows the use of any confessional statement made to a police officer during an investigation. However, Section 164 provides a provision for recording a confession by a competent Magistrate after ensuring that the confession is made voluntarily and out of free will and is not made under any pressure or influence. A person making a confession must be cautioned that he is free not to make a confession and if he chooses to do so, it may be used against him in a trial. The recording of a confession is a very responsible duty of a Magistrate and must be taken seriously. Magistrate shall give time to the accused for reflection before he is asked to make his statement. In a case where a Magistrate did not ask any question what- -soever to ascertain whether the accused was making a confession voluntarily, it was held that such a confession was in utter disregard of the statutory provisions of Section 164 (2). Confessions are not to be recorded on oath. Such confession shall be recorded and signed in the manner provided in Section 364 of the Code. The Magistrate, after questioning the person making the confession, has reason to believe that it was made voluntarily; and, when records any confession, he shall make a memorandum at the foot of such record to the following effect.
“I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing and was read over of the person making it and admitted b him to be correct, and it contains a full and true account of statement made by him”.
(Signed)
Magistrate
7.2.12. Recording of statements of witnesses
Section 164 empowers the Magistrate to record any statement made to him in the course of an investigation or at any time afterwards before the commencement of the inquiry or trial.
Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused be given an opportunity of cross-examining the witness making the statement.
7.3 ARREST AND APPEARANCE
Article 9 of our Constitution guarantees the fundamental right to life and personal liberty and makes it clear that “No person shall be deprived of life or liberty except in accordance with law. The Criminal Procedure Code lays down the procedure, which has to be followed before a person can be deprived of his personal liberty. The right to personal liberty as envisaged in Article 10 is not confined to freedom from physical restraint or freedom from confinement within the bounds of a prison but also includes all varieties of rights, which go to make up the personal liberty of a person in a civilized society. Article 10(1) of the Constitution provides that no arrested person shall be detained in custody without being informed, as soon as may be, of the ground of such arrest. It further guarantees that an arrested person has a right to consult and be defended by a legal practitioner of his choice.
7.3.1. Arrest - Role of a magistrate
Under Article 10 (2) every person who is arrested without a warrant has to be produced before the nearest Magistrate within 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of nearest Magistrate. The police are also under a duty to report to a Magistrate about the arrest of any person. An arrested person cannot be detained in police custody beyond the said period without the authority of a Magistrate. These rights have also been incorporated in Sections 59, 60 and 61 and are intended to work as checks and balances on the otherwise wide powers of the police to arrest a person in a cognizable offence.
Article 10(1) of the Constitution obliges the police to inform an arrested person of the grounds for arrest, nor he be denied the right to consult and be defended by a counsel of his choice. The police officer may release such person on bail in case of a bail able offence as a matter of right if he is prepared to give a surety (Section 60). In case of a non-bail able offence, an arrested person may take such steps as he may be advised and apply for grant of bail after being informed of the grounds of his arrest.
A Magistrate is required to apply his judicial mind to the legality of the arrest of an accused, the regularity of the procedure adopted and on all questions of bail or discharge and to prevent detention with a view to extract a confession or as a means of compelling a person to give information and to prevent police stations being used as a prison.
7.3.2. Legal representation
Every person/accused of having committed an offence has a constitutional right to be defended by a pleader of his choice. A fair trial is one of the important elements of personal liberty. Therefore, the State is bound to provide a lawyer at its cost to an arrested person who cannot afford to defend himself by appointing a lawyer of his choice, particularly, in cases involving death penalty. The Court is duty bound to provide an advocate at State expense to an under-trial involving capital sentence, who is unable to engage a Counsel due to poverty.
7.3.3. Police custody
If it appears to an investigating officer that an investigation cannot be completed within24 hours he may seek remand of an accused, either in police custody or judicial custody. In all circumstances, a Magistrate should not grant police custody for more than 15 days for investigation of an offence. Before ordering remand beyond 24 hours, a Magistrate must satisfy himself that the accusation is well founded. He must look into the entries in the case diary and also question the inves­tigating officer as to whether police custody is necessary and be satisfied that police custody is not sought only to harass an accused. Magistrate in appropriate cases may grant police custody even after the 24 hours of permissible custody.
It must be granted only in cases where it has not been possible to collect all the incriminating facts/materials relating to an offence, at the instance of the accused, which is important for substantiating the allegations. If a Magistrate is not satisfied that further police custody is necessary, an accused may be remanded to judicial custody from time to time except when he is ordered to be enlarged on bail.
Some helpful guidelines in respect of police custody
are: -
■ There must be an important or specific purpose connected with the completion of an inquiry in order to justify a remand to policy custody. A general statement that an accused may be able to give further information is not acceptable;
■ The period should be as short as possible; and
■ The case must be of a type that normally requires time to complete an enquiry.
Article 37 of the Order makes it clear that a confession made by inducement, threat, promise or before police (Article 40) is irrelevant in criminal proceedings save to the extent if there is a recovery of some incriminating materials/facts pursuant thereto.
A Magistrate, while remanding an accused to police custody must record reasons keeping in mind the life and liberty of an accused.
7.3.4. Judicial custody
The Court as a protector of the rights of an arrested person must ensure that the personal liberty of an accused is curtailed only in accordance with procedure established by law. The Superior Courts have, in a number of cases, insisted that a trial must be conducted without delay and the right to a speedy trial has been held to be one of the basic rights of an accused person.
The following are some other safeguards provided in the interest of an arrested person:
1. No Magistrate shall remand an accused person to custody for a term exceeding 15 days at a time.
2. After a challan/charge sheet in a case is submitted to the Court, a Magistrate is required to commence the trial at the earliest.
3. Ordinarily, a Magistrate should conduct a day-to-day trial so that all the witnesses are examined without delay.
4. A trial has to be conducted in the presence of an accused as far as possible.
5. A Magistrate must ensure that an accused is not prejudiced by delay and there should be a fair trial, which must be completed within a reasonable time.
7.4 BAIL
Grant of bail, while restoring the liberty of a person and protecting him from unnecessary detention, is also intended to ensure the presence of an accused person at his trial. It has always to be kept in mind that an accused person is presumed innocent until proven guilty.
7.4.1. Bailable offences
When a person is arrested, detained or brought before a Court in a case of a bail able offence, the Court has no option but to grant bail or discharge the accused on his personal bond. Section 496 requires that such a person shall be released on bail. The officer-in charge of a police station is also empowered to grant bail in respect of a bail able offence.
7.4.2. Non-bailable offences
When a person is accused of a non-bailable offence, the Court may release him on bail (Section 497). However, in case of an offence punishable with death or imprisonment for life, bail ought not to be granted if there exist reasonable grounds to believe that the accused is guilty of the offence.
In case where the accused is:
1. Below the age of sixteen years, or
2. A woman, or
3. Sick, infirm or aged, the Court may release him on bail. However, before grant of bail, the prosecution must be given notice to raise objections, if any. (Proviso II to Section 497(1)).
7.4.3. Statutory bail
The Court shall direct that any person be released on bail, provided that the Court is of the opinion that the delay in the trial of accused has not been occasioned by an act or omission of the accused or any person acting on his behalf-
Who, being accused of any offence not punishable with death, has been detained for such offence for a continuous period of one year or in case of women exceeding six month and trial has not concluded, or
Who, being accused of offence punishable with death, has been detained for such offence for a continuous period exceeding two years and in case of women exceeding one year and trial has not concluded.
That the provisions of the foregoing proviso shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who, in the opinion of the Court, is a hardened, desperate or dangerous criminal or an accused of an act of terrorism punishment with death or imprisonment for life.
7.4.4. Further inquiry
In case a further inquiry is necessary before it can be held that reasonable grounds exist for believing that an accused is guilty of a non-bail able offence, the accused has to be granted bail (Section 497(2)). In such a case, the reasons for doing so must be recorded in writing. The grant of bail in offences falling in non-prohibited clause is right of the accused and refusal is an exception to the rule.
7.4.5. Pre-arrest bail
A person apprehending arrest in a non-bailable offence, may apply for anticipatory bail to the High Court or a Sessions Court, which may grant such bail with or without conditions. The tendency of granting stay against arrest in application for anticipatory bail has been criticized, so the Judge may ensure that instead of staying arrest the applicant may be ordered to be released on executing proper bail bond in the event of arrest. The grounds for the grant of bail before arrest are different from the grounds for the grant of bail after arrest.
7.4.6. Cash security in lieu of bond
The Court may accept cash security deposit, Government promissory note or saving certificates, in lieu of execution of bail bonds (Section 513).
7.4.7. Grounds for refusing bail
Generally, bail may be refused if the Court is satisfied that an accused will abscond.
There are other grounds for denial of bail, viz;
An accused will commit a further offence whilst on bail.
An accused may interfere with, or win over witnesses or obstruct the course of justice by tampering with evidence.
An accused may be subject to physical attack by others or by him self.
7.4.8. Cancellation of bail
The High Court or a Court of Sessions (Section 497 (5)), or any other Court, which has released an accused on bail in a non-bail able offence, may order his arrest and commit to custody, whenever a change in circumstances appear, and there is apprehension that the accused may abscond, or he has breached the terms of his bail, or committed other offences, interfered with witnesses or the administration of justice, or there are further grounds for the cancellation of bail (Section 497(5)).
7.5 THE CHARGE
A fundamental principle of law is that an accused should know the exact nature of the charge brought against him. Before the prosecution evidence is recorded, a person must be formally charged, that is, informed of the offence alleged to have been committed by him. The Court must ensure that an accused has been provided with all the relevant documents relied by the prosecution viz. charge-sheet, etc. as provided in Sections 241-A or 265-C of the Code, as the case by be, before framing a charge. The charge has to be framed in accordance with the provisions of Sections 211 to 224 of the Code.
When the charge-sheet, filed under Section 173(2), discloses commission of several offences, an accused must be charged for each offence separately.
The Trial Court must go through and have an over-all view of the case from the report under Section 173 and documents filed with it, thereby enabling it to charge an accused, if necessary, in accordance as required under section 242 and 265D, as the case may be. The trial Court must consider the materials on record to form a presumptive opinion as to the existence of the facts constituting the offence alleged before framing the charge. If the charge is groundless or there are no sufficient grounds for proceeding against the accused, the case must be shut out at the very outset.
7.5.1. Roles of the judge and the counsel
Framing of a charge in criminal trial is not just a formality but also a fundamental requirement of law. Thus, the Trial Court has a responsibility to frame a charge with precision, giving all necessary particulars required by law. The charge framed against an accused defines the scope of the trial. The prosecutor and defence counsel are expected to assist the Court in framing the charge.
7.5.2. Language and content
The charge must include the name of the offence, where it has a specific name, with particulars of the acts, which constitute the offence, and also the name of the person against whom the offence was committed. The purpose of framing a charge is that accused is not prejudiced or taken by surprise at the trial. Section 221 and Section 222 respectively provide what a charge shall contain and what particulars are required to be given. Sometimes nature of the offence is such that particulars required to be given in terms of by Section 221 and Section 222 do not give sufficient notice of the offence with which the accused is charged. In such cases, the manner of commission of the offence must also be mentioned. The charge has to be written in the language of the Court.
7.5.3. Previous conviction to be specified
If an accused has a previous conviction, which will make him liable for enhanced punishment or punishment of a different kind, the fact, date and place of the previous conviction must be set out in the charge. The accused should be asked if he admits it, and his reply should be recorded. However, if he denies the conviction, it must be proved according to the provisions of Section 245-A of chapter XX, and 265-1 of chapter XXIl-A, as the case may. This is one of the exceptions to the general rule that previous convictions are only relevant after conviction.
7.5.4. Joinder of charges
As a general rule, for each distinct offence there shall be a separate charge and each charge shall be tried separately, except in the cases mentioned in Section 234, 235 and 239.
(i) When a person is accused of more offences than one of the same kind with in the space of twelve months, he may be charged and tried at one trial for, any number not exceeding three. The offence under Section 379 and offence under Section 380 of the Penal Code shall be deemed the offences of the same kind (Section 234)
(ii) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person. If the acts alleged constitute an offence falling within two or more separate definitions of any law in force, by which offences are defined or punished, the same person accused of them, he may be charged with and tried at one trial for, each offences (Section 235).
Section 239 specifies the persons that may be charged and tries together:
a) Persons accused of same offence committed in the course of the same transaction.
b) Persons accused of an offence and persons accused of abetment, or of an attempt to commit such offence;
c) When a person is accused of more than one offence of the same kind, within the meaning of Section 234 committed by them jointly committed within a period of twelve months;
d) Persons accused of different offences committed in the course of the same transaction;
e) Persons accused of offence which includes theft, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or concealment of, property, possession of which is alleged to have been transferred by such offence committed by the first name persons, or of abetment of or attempting to commit any such last mentioned offence;
f) Persons accused of offences under Sections 411 and 414 of the code or either of those Section in respect of stolen property the possession of which has been transferred by one offence, and
g) Persons accused of offences under chapter XII of the Penal code relating to counterfeit coin, and persons accused of any other offence under the said chapter relating to same coin, or of abetment of or attempting to commit any such offence.
Likewise Section 238 says that a person charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, he may be convicted for minor offence, though he was not charged with it.
7.5.5. Variance in charge and evidence
Where an accused is charged with one offence but the evidence adduced reveals that he is guilty of another offence under which he might have been charged, the accused may be convicted of the offence which is shown to have committed, although he was not charged for it (Section 237). For example, if a person is charged with the offence of theft but in evidence it appears that he committed an offence of receiving stolen goods, he may be convicted of the said offence, though he was not charged with such offence.
7.5.6. Effect of error
Though a charge must be accurate, clear and precise, any error or omission in the charge will not vitiate the trial or be considered material, unless by such error or omission, the accused is shown to have been misled or prejudiced in his defence and it has occasioned a failure of justice (Section 225 and 537).
Moreover, by making a suitable alteration or addition, any defect in the charge can be cured at any time before judgment is pronounced.
7.6 THE TRIAL
7.6.1. Introduction
The procedure to be followed in a trial differs according to the quantum of punishment provided and the Court where the trial has to take place. The following Chapters/Sections deal with trials:
i. Section 177 to 183 deals with pre-trial stage. Chapter XV (Section 177 to Section 183) deals with the juris- -diction of the Courts in inquiry and trials. Conditions requisite for, initiation of proceeding by taking cognizance of offences by Magistrates (Section 190), cognizance of offences by, Court of Sessions (Section 193). The mode and the manner of taking cognizance of, specified offences (Sections 195, 196 to 199). The magistrate’s power to dispense with personal attendance of accused (Section 205). The Section 260 to 265 empower the Magistrate to try petty offences summarily. Chapter XV (Section 221 to 240) deals generally with the aspect of charge.
ii. Section 265-A to Section 265-N of Chapter XXIl-A prescribes the procedure of trial before the Court of Sessions. No Court inferior to the Court of Sessions can follow this procedure. The same procedure has to be followed by Additional Sessions Judge and Assistant Sessions Judge.
iii. Section 241 to Section 250-A of Chapter XX, deals with trials before a Magistrate.
iv. Section 260 to Section 265 deals with the summary procedure to be followed while dealing with offences carrying a punishment up to three months only. No formal charge is to be framed. The accused is given a notice of the accusation against him. In appeal able cases the Magistrate is required to record the substance of evidence and the particulars as mention in Section 263.
7.6.2. Supply of statements and documents to an accused
In all cases prosecuted by the police, copies of the police report, the FIR, statements of all witnesses recorded under Section 161 and Section 164 and the documents forwarded by an investigation officer, shall be supplied free of cost to an accused, not later than seven days before the commence- -ment of trial (Section 241-A in Magistrate’s trial and Section 265-C in Sessions trial). An exception to this exists where disclosure of a statement or part thereof, would be in- -expedient in public interest.
7.6.3. Framing of a charge
A case proceeds after the charge is framed. If it is not possible to proceed with the case immediately after framing the charge or altering a charge, the trial may commence at a subsequent date to be fixed by the Court. The trial may commence immediately if it does not prejudice the accused in his defence. Any delay in conducting a trial should be scrupulously avoided. Therefore, the Court should ascertain from the prosecution whether any exhibits are to be produced, if so, check if they are available. In appropriate cases, a short adjournment at this stage may save much time later.
7.6.4. Non-appearance of complainant
In any case instituted otherwise than upon complaint, Magistrate, may for reasons to be recorded by him, stop the proceeding at the stage without pronouncing any judgment either of acquittal or conviction; and thereupon release the accused (Section 249).
7.6.5. Dispensing with the presence of accused
The Court may dispense with the attendance of an accused in Court when a lawyer represents him. However, the Court should record reasons why an accused is incapable of being present. The Court may direct his attendance at any later stage of the proceedings (Section 205).
7.6.6. The Plea
The charge shall be read out and explained to an accused. He shall then be asked if he pleads guilty or claims to be tried (Section 242 in Magistrate’s trial and Section 265-E). The Court should satisfy itself that the accused understands the charge.
7.6.7. Unsoundness of mind
Section 84 of the Penal Code deals with an accused who is lunatic at the time of commission of the offence. If an accused is lunatic at the time of inquiry or trial, the provisions of Chapter XXXIV of the Code deal with such cases. Where a Magistrate believes that an accused is of unsound mind and consequently incapable of making his defence, he should arrange for the accused to be examined. Civil surgeon of the district or a medical officer, designated by the Provincial Government, should carry out the examination. The Court should record the medical officer’s report and opinion. If the Magistrate is satisfied that the illness is such that an accused is incapable of defending himself, he shall record a finding to that effect and shall postpone further proceeding (Section 464). The Court of Sessions shall also adopt the same procedure if an accused is of unsound mind and incapable of making his defence (Section 465). The Court may grant bail if it is satisfied that he will be taken proper care of and will not injure himself. If the Court is not so satisfied, then the accused may be detained in an appropriate place of safe custody. The Court must report what action has been taken to the Provincial Government (Section 466). If the mental illness of an accused is temporary, the accused may be brought back to Court at a later date when found to be fit. The trial may then proceed (Section 467).
7.6.8. Acquittal on ground of lunacy
Section 470 enables the Court to acquit a person if it comes to the conclusion that at the time of commission of offence, the said accused was incapable to knowing the conse- -quences of offence, or that it was wrong or contrary to law, the finding shall state specifically weather he committed the act or not. Such a person, though mentally cured later and brought before the Court, if such defence is taken, the Court is to find out what was his mental status at the time of commission of offence (Section 473).
If an accused is acquitted on the ground of lunacy, the Court must order him to be detained in a place of safe custody and report the action taken to the Provincial Government (Section 471) Sections 474 and 475 set out the steps to be taken thereafter.
7.6.9. Guilty plea
If an accused pleads guilty, the admission shall be recorded as nearly as possible in the words used by him. If the accused has pleaded to the charge as framed without any qualifications or reservation and shown no sufficient cause why he should not be convicted then the Court may proceed to record a conviction (Section 243 in Magistrate’s trial, 465- E (2) in Sessions trial, as the case may be).
Great caution is required and a plea of guilty can only be recorded when the accused person raises no defence at all. Situations have arisen where the plea may not be an honest one. For example, an accused person may be trying to shield someone else or may have some other reasons best known to him to admit his guilt. If there is the slightest doubt about the plea at any stage, the Court should call upon the prosecution to prove the case.
7.6.10. Not guilty plea
If the plea entered is not guilty, the trial shall proceed and the Court will hear the evidence of the prosecution and defence. If the accused makes no admission, admits the charge partially or has a defence to advance, for example, an alibi, grave and sudden provocation, etc., the Court should record the plea as not guilty. The defence may later bring out its case during the trial.
7.6.11. Presumption of innocence
A person is presumed innocent unless and until he is proved guilty. This is a very important presumption, which is not diluted by the fact that an accused has a previous conviction. He may have been earlier convicted of several offences, but that does not mean that he is guilty in the case now before the Court. Therefore, this presumption should never be taken as an idle indulgence to the accused.
7.6.12. Persons convicted / acquitted may not be tried for the same offence
The general principle is that a person convicted or acquitted of an offence is not liable to be tried again for the same offence or for a different offence based on the same facts. This is also called the rule of ‘Double Jeopardy’ and is preserved by Article 13 of the Constitution. One may read Section 403 of the Penal Code and the illustrations following the section. This is a preliminary issue that should be considered at the first opportunity.
7.6.13. Standard of proof
In a criminal case, the prosecution has to prove the charge against the accused beyond all reasonable doubt. That is the reason why the benefit of the doubt, which means a reasonable doubt, is given to an accused. In a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. After examination of the whole evidence, if the Court is of the opinion that there is a reasonable possibility that the defence put forward by an accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond a reasonable doubt. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt.
7.6.14. Burden of proof
The burden to prove every element of the charge against an accused is entirely on the prosecution. However, if theaccused takes a plea of statutory defences as contained in Chapter IV of the Penal Code, such as alibi or self defence, the burden of proving such a defence lies on him. Whilst the burden of proof shifts to the accused, the standard of proof is not as heavy as that of the prosecution. For example, in a case where the accused pleads self defence, the accused does not have to prove that he acted in self defence beyond reasonable doubt; he only needs to establish he so acted on the balance of probabilities. If he succeeds in showing to the Court that he was acting in self defence, he is entitled to be acquitted. However, the prosecution may rebut his evidence and must then prove beyond reasonable doubt that he was not acting in self defence.
7.6.15. Legal aid
The Rule requires that the Accused, facing charge entailing capital sentence and has no means to engage a counsel to defend him, can’t be tried unless he has been provided a defence counsel at state expenses to defend him at Sessions trial. Now Legal Aid is considered as a fundamental right and non-extension of the same to the needy accused is viewed seriously. It is rules by superior Courts that free legal assistance at state expense is a fundamental right of a person accused of an offence before any Criminal Court provided he is unable to engage a Counsel due to poverty or indigence etc.
7.7 EVIDENCE
7.7.1. Prosecution evidence
The prosecution evidence has to be presented by the prosecutor, which is subject to challenge by the defence. The relevance or otherwise of a piece of evidence, whether oral or documentary, has to be judged on the basis of the criteria laid down in Chapter II of the Order. It is the duty of the prosecutor to set out the prosecution case clearly through the presentation of evidence. The most common form of evidence is testimony, i.e., oral evidence of witnesses given in court, on oath or on affirmation.
7.7.2. Examination-in-chief
It is the burden of the prosecutor to disclose the case against the accused by examination-in-chief of the witnesses. The witness, in examination-in-chief, tells the Court his or her version of the facts. No leading questions should be put to the witness. No gaps should be allowed to be filled by the prosecutor by making suggestions, indications or prompting the witness. The witness should be led through his evidence by the prosecutor keeping the witness focused on relevant, admissible disclosures concerning the crime and circum- -stances of its commission. The prosecution evidence should lead logically to prove each element of the charge. The evidence given ‘in-chief is then subject to challenge by the defence by way of cross-examination (Article 133 of Chapter X of the Order).
7.7.3. Cross-examination
Cross-examination is the valuable right of an accused whereby he may demolish the case of the prosecution. The defence may confront or ask leading questions. Any question concerning the identity, veracity or character of the witness is lawful, with reasonable grounds (Articles 135, 138, 140 and 141 of the Order). Scandalous indecent questions not related to the facts in issue and are un-necessary be not permitted (Article 146 and 148 of the Order).
7.7.4. Re-examination
After the cross-examination the prosecution has the right to re-examine the witness. This becomes very necessary to explain matters, which may have come out for the first time in cross examination, requiring explanation. It is confined therefore; to matters raised in the cross examination and fresh matters must not be raised. Again, leading questions are not permissible. Whenever new matter is introduced in re-examination with the permission of the Court, the adverse party may further cross examine only upon that (Article 133(3) of the Order.
7.7.5. Permission to cross-examine own witness
The Court may permit a party to cross-examine his own witness and put questions generally allowed in cross- examination (Article 150 of the Order).
7.7.6. Questions by the court
The Court may at any stage ask any questions to any witness or a party or own for production of a document or a thing and no party can object such exercise of power. The adverse party can only cross-examine with the permission of the Court (Article 161 of the Order).
7.7.7. Demeanour of witnesses
It plays a very important role with regard to credibility of a witness, i.e., the observation of the Judge about the conduct of a witness. The behavior and appearance of a witness in the witness box has to be noted by the Judge on the issue of credibility. One may say with certainty that this rule of procedure in recording the demeanour of a witness is not being followed by Judges (Section 363).
Great attention was being paid to the demeanour of a witness, during Mugal reign. Emperor Shah Jehan was presiding Court, “where a Hindu scribe sued a Mugal soldier for enticing his wife. The wife denied that the complainant was her husband. But the Emperor, who was hearing the case, observing the demeanour of the wife in witness box, was not satisfied with her statement. Therefore, he suddenly ordered her to fill the Court’s ink pot. The woman did the work dexterously, and the Emperor concluded that she was the wife of scribe and granted the decree”
7.7.8. Consideration of evidence
When the Court comes to the point of making a decision in the case, no part of the examination-in-chief or the cross examination should be considered in isolation, the evidence as recorded has to be considered as a whole. In the course of recording evidence, the Court should distinguish examination-in-chief, cross-examination and re-examination. Further, the Court should note any matters concerning the demeanour of witnesses, if noteworthy and if it affects the weight or credibility, the Court attaches to the evidence adduced.
7.7.9. Court’s power to summon and examine witnesses
Under Sections 69 and 252, the Court has the power to summon any persons as a witness or examine any person already in attendance. Similarly, a Court has the power to recall and re-examine any such person. However, these powers have to be exercised only for the cause of justice. The parties have the right to cross-examine such a witness.
7.7.10. Relevance and admissibility
The prosecution or defence should not be allowed to ask irrelevant questions. Further, admissibility of evidence depends upon whether its prejudicial affects out weight its probative value. The Court has discretion to exclude such evidence. However, the Court can be in a difficult position to make an immediate decision as to its relevance or admissibility. It may well be that defence counsel starts a line of questioning which, maybe “putting” the defence case to the witness in cross-examination or seeking to adduceevidence to attack a witnesses’ credibility that cannot be done without setting out certain circumstances. In these situations, an objection will normally be raised by the other party, who will insist the Court make a ruling immediately. The reality is that this is not always possible.
A Judge or Magistrate is the sole decision maker in respect of facts and law. Any evidence necessary and properly called and admitted during the trial is in fact before the trial Judge for all purposes of the trial. It is the Judge’s duty, so long as that evidence remains on the record, to give such weight to it on the question whether it may be relevant for just decision of the case.
If a leading question is put in examination-in-chief the mater can be dealt with immediately and the Court should get the question rephrased. If in cross-examination a party objects to a question as being irrelevant or inadmissible, the preferred course is to note it and dispose of it forthwith. If it is more complex, it should be noted and the decision can be deferred until an overall view of the case emerged. However, it will be important that the Court records and announces its decision in respect of that submission.
7.7.11. Hearsay
Hearsay evidence is based on what the person testifying has not seen or heard him self. It is not based on personal knowledge or observation. As a general rule, hearsay evidence is inadmissible. Hearsay evidence can never be admitted to prove any fact. The exceptions to this general rule of exclusion are:
1. Dying declarations
2. Declarations against interest, pecuniary or moral
3. Act or declaration about pedigree
4. Family reputation or tradition regarding pedigree
5. Common reputation
6. Part of res gestate (Latin: things done)
7. Entries in the course of business
8. Entries in official records
9. Commercial lists and the like
10. Treaties
11. Testimony at a former trial, and
12. Shahada ala al-shahada.
7.7.12. Acquittal at any stage
At any stage of trial, if the Magistrate thinks that there is no case for the accused to answer, the charge is groundless or there is no probability of the accused being convicted of any offence, then the Magistrate may, after hearing both the sides and recording his reasons, acquit the accused by exercising the power under Section 249-A. Likewise the Sessions Judge may acquit the accused at any stage of the case, after hearing the prosecutor and the accused and for the reasons to be recorded, it considers that there is no probability of the accused being convicted of any offence by increasing the power under Section 265K. The Court should consider whether the prosecution has established that there is a case to answer before asking the accused if he wishes to give evidence on oath or call evidence in support of his defence.
7.7.13. Power to examine the accused
At any stage of the inquiry/trial, without any previous warning to the accused, the Court may put questions to the accused. The purpose is to enable the accused to explaining circum- -stances in the evidence against him, the accused shall not be sworn, and therefore he may refuse to answer any of the questions and he cannot be prosecuted for that. However, the Court may draw such inference from such refusal or answers, as it thinks fit. The answers should be recorded. These may be taken into consideration in relation to the trial before the Court and put in as evidence for or against, in any
other trial or inquiry in relation to another offence (Section 342).
There must be no influence, promise, threat or inducement to the accused to disclose or withhold any matter. All the material factors and circumstances brought on record and appearing against the accused have to be specifically put to him, and answers be recorded in the words of the accused. Additionally, he has to be asked why the witnesses are making statements against him. Finally, whether, he has anything further to say. His statement has to be certified by the Court. Suggested questions may include; “Why the case is against you?” “Why have the witnesses said against you?” “Do you wish to call anyone as a witness in your defence?”
7.7.14. Accused giving evidence on oath
The accused is a competent witness and may give evidence on oath in his defence (Section 340 (2)). The accused should be asked whether he wishes to give evidence on oath, and he should be warned of the implications. Those are that he may be cross-examined, and whilst he is under no obligation to answer any question which may incriminate him in respect of any other offence he has committed or this offence or is of bad character. He will lose this protection in three circum- -stances; similar fact evidence is admissible i.e. proof of other offences will show his guilt in respect of this offence, he has attacked the credit of a prosecution witness, or he has given evidence against a co-accused. In these circum- -stances, he must answer incriminating questions or if he refuses, the prosecution may call evidence to prove the substance of the questions put to him. If he elects not to make a statement on oath, this fact shall not be held against him; no adverse inference should be drawn, as there is a constitutional right against self-incrimination.
7.7.15. Defence evidence
The accused should be asked if he wants to produce evidence in his defence. The accused may lead evidence in support of his specific defence plea of alibi or self-defence, etc., or to contradict the prosecution evidence or merely to prove his good character. The defence evidence, including the testimony of the accused recorded on oath, is subject to cross-examination. When the evidence in defence has been closed, the stage is set for arguments.
7.7.16. Closing submissions
Where the accused has led his evidence in defence, he has to present his submissions first to which the prosecutor has the right to reply. That will be the end of the submissions. However, if the defence has chosen not to adduce evidence at all, the prosecutor should open with his submissions followed by the defence counsel’s right to reply and close the arguments (Section 265-G).
At the stage of closing submissions, no fresh evidence can be brought on record. Counsel for prosecution and defence will seek to persuade the Court to accept their respective points of view on the basis of the evidence on record. It is important to remind oneself that these are submissions only.
7.7.17. Process to compel production of documents
The power of Court in relation to the process of compelling the production of documents, are described in detail in Sections 94 of the Chapter VII. The provisions enable the Court to compel not only the production of documents but also other movable property also concerned with the case before the Court.
7.7.18. Medical and reports of chemical examiner, serologist etc.
Provision is made for depositions of civil surgeons, other medical witnesses or other expert witnesses, taken and attested by a Magistrate in the presence of the accused or taken on commission under chapter XL, may be given in evidence in any inquiry or trial in the absence of the witness. However, the Court may call for the attendance of such witness if it thinks fit (Section 509).
An expert report of chemical examiner, serologist, finger-print expert or fire-arm expert, or chief chemist of Pakistan Security Printing Corporation, upon any matter or thing may, without calling him as witness, be used as evidence in any inquiry or trial or other proceeding under Code. However, the Court may, if it considers necessary summon and examine the expert (Section 510)
7.7.19. Absconding accused
If the accused is absconding, evidence may be taken by way of deposition from witnesses and used in evidence in the case subsequently when the absconder is arrested and the witness is not available for any good reason (Section 512).
7.8 THE DECISION
While concluding the guilt or innocence of an accused, the Judge should not be swayed by the fanciful or sham demeanour of a clever witness. The evidence of such a witness should be meticulously analyzed. The personal knowledge of a Judge based on extraneous influences should never creep into his or her decision.
A Judgment should be webbed in such a manner so that all relevant facts including the plea of defence are interwoven in it. The points to be determined should be transparent; the evidence should be analyzed and appreciated precisely in the light of the points of deter- -mination. The relevant and admissible part of a deposition or testimony should form the basis of a decision. The Court should separate the grain from the chaff on a careful and scrupulous analysis of evidence. The whole transcript of the evidence should never be reproduced in the Judgment.
A Judge should express his opinion in a temperate language, usually associated with and reflecting the im- -personal dignity of judicial restraint. No disparaging or libelous remarks should be made against any person who had no opportunity of defending himself and who had not appeared as a witness. The opinion of a witness other than an expert witness cannot be made the basis of guilt or innocence of an accused. The opinion of an expert witness is admissible in evidence because such witness by reason of his training or experience is qualified to express opinion whereas an ordinary witness is not competent to do so. The evidence of an expert witness cannot be taken as a substantive piece of evidence but only for corroborating with other evidence (Article 59 to 65 of the Order).
A Judgment should be precise and compact so as to contain only relevant material. It should be written in a lucid and unambiguous language so that the parties to it get a crystal clear picture of the reasons for the decision arrived. When a decision is subject to appeal or revision by the appellate Court it must be reasoned, detailed and exhaus­tive.
7.8.1. Structure of a decision
i. The elements of the offence
The source and ingredient of the offence must be mentioned. Each and every ingredient of the offence must be proved for a decision of conviction.
ii. What is admissible evidence?
Oral testimony, documentary, expert opinion (Article 59 of the Order) or a report of a scientific expert (Section 510) are different forms of admissible evidence. A confession or admission is evidence against its maker, if its admissibility is not excluded by some provision of law (Article 37 to 40 of the Order and Section 162 and 164). A confession cannot be used against an accused person unless the Court is satisfied of its being voluntary.
A free and voluntary confession deserves highest credit, because it is presumed to flow from the highest sense of guilt. An accomplice may be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice (Article 16 of the Order). In case of circum- -stantial evidence, all the circumstances from which a conclusion of guilt is to be drawn should be fully and cogently established. Defence witnesses are entitled to equal treat- -ment with those of the prosecution. Any person accused of an offence shall be a competent witness for the defence and may give evidence on oath. However his failure to give evidence shall not give rise to any presumption against him (Section 340(2)).
iii. What are the matters in issue?
The facts and the matters in issue along with relevant facts are to be identified. The primary facts in issue are:
a. What was the conduct of the accused before commission of the offence, and what was his subsequent conduct?
b. Who was the aggressive party?
c. Whether the injury was inflicted intentionally or while acting in self-defense?
d. What was the motive?
iv. Does an accused have a case to answer?
If the essential element and necessary ingredient of an offence is not established or the evidence is found to be shaky and unreliable, then the Court should acquit the accused.
v. Is the case proved?
It is the bounden duty of the prosecution to prove all ingredients of an offence against an accused. An accused person is not required to prove his innocence during a trial. In most of the cases it is not necessary for him to establish a defence. An accused is required to discharge a burden to prove certain issues where he raises a defence. The burden of proving the plea of alibi (Article 24 of the Order) undoubt­edly lies on the accused. When an accused person pleads a bar to his trial (Section 197), it is for him to establish the facts which bring that section into operation. It is the duty of the Court to require the prosecution to prove every part of its case affirmatively by sufficient and legal evidence and it is not possible to convict an accused person on the ground of any weakness in his defence.
vi. What is the standard of proof?
The prosecution has to discharge its onus of proving its case against an accused beyond a reasonable doubt. The standard of proof beyond a reasonable doubt, though is a higher standard, it is not an absolute standard. The degree of probability, which would amount to “proof, is an exercise particular to each case. To constitute reasonable doubt, it must be free from an over emotional response. Doubts must be actual and substantial arising from the evidence or from the lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary, trivial or a merely possible doubt; but a fair doubt based upon reason and common sense. The cardinal principle to be observed in the trial of a criminal case is that the accused should always be considered innocent till the criminal acts alleged against him are affirmatively and satisfactorily proved. Upon considering
the entire case of the prosecution, if two views are possible, the view in favor of an accused should be adopted to extend the benefit of doubt in his favor.
7.8.2. Statutory requirements
Chapter XXVI sets out the requirements as to the mode of delivering a Judgment, its language and contents. A judgment shall be pronounced or the substance of a judgment shall be explained in open Court and in the language of the Court or in some other language, which is understood by the accused or his pleader. If the accused is in custody, he shall be brought up to hear the judgment. If the accused is not in custody, he must be present to hear the judgment, except where his personal attendance during the trial has been dispensed with and the sentence is one of fine only or he is acquitted. The judgment shall be written in the language of the Court and shall contain:
1. the points of determination
2. the decision thereon
3. the reasons for the decision
4. be signed and dated on every page by the Presiding Officer in open Court.
5. the offence, section and punishment to which the accused is sentenced;
Once a judgment is signed, it should not be altered or revised, except to correct a clerical error. A copy of judg- -ment, in case of a conviction, shall be delivered to the accused immediately (Section 371).
7.8.3. Acquittal or conviction
The conclusion of a trial will result in the acquittal of an accused or his conviction. If the prosecution fails to bring home the guilt of an accused beyond reasonable doubt, the benefit of doubt should go to the accused and he should be acquitted. The judgment of acquittal should state what the offences are of which the accused is acquitted and should direct that he be set at liberty (Section 367(4)). It is necessary, in a case of conviction, that the judgment should distinctly specify the offence or offences of which the accused is convicted.
7.8.4. Copies of judgment and orders
Where an accused is sentenced to imprisonment, a copy of the Judgment shall be given immediately free of cost, except in cases of summarily tried (Section 371).
Any person aggrieved by a judgment or any order passed by a criminal Court shall be provided a copy of the order, deposition of witnesses or other part of the record on payment of the required fee.
7.9 SENTENCING PROCEDURE
The complex question of determination of nature and quantum of sentence comes before the Court after the conviction of an accused. The quantum of punishment depends on various relevant factors relating to the nature of offence, the manner of its commission and the gravity of the same. The horizontal and vertical competing interest bet- -ween society and individual, the victim and accused and the aspiration of ‘object to be sought’ and the limitations of law require accurate analysis and harmonization of remedial, reformative and preventive steps. A proper sentence is the amalgam of many factors such as the nature of offence, the circumstances, extenuating or aggravating of the offence, the prior criminal record, if any, of offender, the age of offender, the record of offender as to employment, the background of offender with reference to education, home life, sobriety and social adjustment, the emotional and mental condition of offender, the prospects for rehabilitation of the offender, the possibility of return of offender to normal life in the community, the possibility of the treatment or training of offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such a deterrent in respect to particular type of offence. These factors have to be taken into account by the Court in deciding upon the appropriate sentence”.
Before passing an order on sentence, the Court should always refer to the punishment provided by statute for particular offence. The sentence should strictly in accor- -dance with the limit of legislative mandate and the juris- -diction vested in the Court. For some offences, minimum or maximum sentences have been provided whereas for some offences fine and imprisonment both are made mandatory. For some offences particular type of imprisonment i.e. (simple or rigorous) has been given. Therefore, before any order of sentence, Court should bear in mind the relevant provisions of substantive and procedural law, the relevant rules and the decided cases by the superior Courts.
7.9.1. Sentencing provisions
For reference, following provisions should be referred: a. Code: -
(i) Section 31
Sentences which High Courts and Session Judges may pass.
(ii) Section 32
Sentences which Magistrate may pass.
(iii) Section 33
Sentence of imprisonment in default of fine.
(iv) Section 35
Sentence in cases of conviction of several offences at one trial.
(v) Section 367 - sub clause (5)
(vi) Section 368(1)
(vii) Section 370 (3)
It is specifically pointed out that under Section 370 (3) it has been provided that when the accused is sentenced to death by Sessions Judge, such Judge shall further inform him of period within which, if he wishes to appeal, his appeal should be preferred. Where the punishment provided for an offence, limited by maximum and minimum, the Court imposes a sentence of minimum limit, it shall record its reasons for awarding such sentence, unless the sentence is one of imprisonment till rising of the Court, or unless the case was tried summarily under the provisions of the code.
a. Court while passing the sentence should also bear in mind the provisions relating to a particular offence with reference to Schedule-ll.
b. Pakistan Penal Code - Chapter-Ill- “OF PUNISH- -MENTS” should be gone through, particularly, Sections 53, 63, 64 and 65
7.9.2. Punishment greater than can be imposed
Where a Magistrate is of the opinion that punishment should be greater than he can impose. Under Section 349, it has been provided that whenever the Magistrate of second or third class is of the opinion, after hearing evidence for the prosecution and the accused, that the accused is guilty, and that he ought to receive a punishment different in kind, form, or more severe than that which Magistrate is empowered to inflict, he may submit his proceedings after recording his opinion and forward the accused to the Magistrate of first class specially empowered in this behalf.
7.9.3. Principles of sentencing
Social experience and judicial research has contributed to the development of principles of sentencing. There are four accepted principles of sentencing, which are described as follows. Although with the fast pace of changing society and the nature of crime, other principles are also being propounded and debated so far, but the same still need recognition before their application in practical sense. Following are the theories of punishment:
i. Retribution- The theory of retribution is the punishment given to the offender on behalf of the community to mark its disapproval of the offence.
ii. Deterrence- This theory of punishment is propounded to deter the offender and other persons of the community in similar situation from breaking the law again.
iii. Prevention- The aim of this principle of sentence is to limit the opportunity to commit offences. One of the severe forms of prevention is custody in prison. The other forms may be certain type of disqualifications attached to a particular of category of offence and the persons, e.g., the cancellation of driving license in Motor Vehicle related offences or creating bar to participate in the electoral process relating to the offences of elections.
iv. Rehabilitation- This theory is most advocated and favored by the social scientists and the jurists of liberal democracies, which aims at the reformation and re- -habilitation of offenders and try to find out the ways and means to bring back the offenders to the mainstream of life.
Although in given circumstances of a particular case, one or more principles of sentencing may be found com- -paratively more suitable or appropriate but all the above theories in one or the other context is equally important.
There cannot be any strict compartmentalization for application of one or the other principle of sentencing. Court should consider each principle in reference with the nature of offence, circumstances of its commission, circumstances of the offender, the legislative intention and the expectations and welfare of victim as well as the society. The Court may then assess the suitability of one or the more principles consistent with the object sought to be achieved.
While determining the quantum of sentence, the Court should not be influenced by his personal bias or strong dislikes relating to particular category of offences or the class of offenders. Sometimes, if the sentencing Judge fails to recognize and to eliminate his personal prejudice, the whole object of the sentence given by him may not only lose its sanctity but also its object.
1. Matters of flexibility and personal bias are equally important even when the penalty of fine is imposed because a disproportionate penalty of fine may lose the object of punishment.
2. In order to guard against any influence of personal bias, by giving full attention to the principles of sentencing and the above-mentioned principles of law, judicial officers should achieve a pattern of consistency in sentencing. Consistency must not be confused or equated with uniformity. Consistency really means the approach to sentencing, although the actual penalty imposed in each case on the same charge may be different.
Apart from the consistency of one’s own, consistency must always be observed in reference to the pattern of sentencing by other judicial officers.
Sentencing is the most difficult exercise of discretion, which must be governed by sound principles of sentencing, legal provisions and a consistent pattern.
Discretion can never be the personal whims. Discretion is a judicial approach to a particular decision based on the facts and circumstances of a particular case. Even if a Court is dealing with a simple minor offence requiring only a fine or a more complex case, the judicial act of sentencing must not lose sight of sound principles of sentencing and the consis­tency in its approach.
7.9.4. The sentencing approach
The question of ascertaining the right kind of sentence needs the analysis of above mentioned various factors, which come into the picture after conviction of an accused. In some cases, the required information relating to relevant factors comes on record during the trial, but in most cases it does not reflect from the record particularly, when accused is convicted by summary procedure or merely on the basis of his plea of guilt. It is always important that Judge should not try to elicit information relevant to the adjustment of punishment prior to conviction because there is always a danger that an accused may perceive that even prior to his conviction, a Judge has made up his mind to convict him.
The mitigating circumstances, as far as the offence is concerned, should always be taken from the record.
7.9.5. The prevalence of the offence
Most of the time, it is found desirable to raise the level of penalty for an offence more prevalent with an aim to deter the commission of it. It should be done only by those who have sufficient experience of work and only after consultation with other senior officers because such notions of recurrence of particular offences sometime may be misconceived.
7.9.6. Principles or guidelines issued by the superior courts
The Judge should always be aware about the decisions of the superior courts for guidelines for determination of its approach and quantum and kind of sentence in particular offences.
7.9.7. Previous conviction - relevance.
A previous conviction must be relevant to the offence which is dealt with. An earlier conviction for arson would have no relevance to the offence of driving a vehicle without driving license, and therefore, it should be completely ignored. As a rule of prudence, the offence committed by accused many years ago should be disregarded or less weight should be given to it. If accused had been in prison for the intervening years, the sentencing Judge may be justified in paying some attention to his previous conviction. Previous convictions act as an aggravating circumstance where the Court is satisfied about the pattern of its commission and visualize or anticipate its repetition in future. A previous conviction should not be considered merely to increase the penalty because it will amount the punishment for the previous offence also for which an accused has already suffered the punishment.
7.10 TYPES OF SENTENCES
7.10.1. Death penalty
Death penalty is imposed by Court of Sessions, subject to confirmation by High Court (Section 374). High Court has the power to enquire into the matter, re-appreciate the evidence when reference of death penalty is made for confirmation. High Court has power to:
1. Confirm the sentence or annul conviction (Section 376).
2. Confirm or give a new sentence (Section 377).
3. Direct further inquiry or taking additional evidence (Section 375).
7.10.2. Capital punishment has been provided in six principal offences
1. Treason, i.e. waging war, against Government of Pakistan (Section121).
2. Abetment of mutiny (Section 132).
3. Qatal-amad (Section 302).
4. Qatal-amad when waived/compounded (Section
311)
5. Qatal-amad after compounding of Qisas (Section
312)
6. Dacoity with murder (Section 396 Penal Code).
7.10.3. Death penalty - appropriateness
Death penalty is included in criminal law to provide deterrence for potential offenders. Lately, in some countries death penalty is less preferred. Earlier doctrine followed for death penalty was ‘Murder Most Foul’ enumerated in various cases by Courts of law. Doctrine of ‘rarest of rare’ is recent one it has shifted the emphasis from crime to criminal. Overall background of criminal is to be looked upon, not only the act charged upon. If there is any possibility of reform- -ation, rehabilitation etc., leniency has to be shown. Death penalty should be awarded only to hardened criminals, terrorists, etc. of whom there is no possibility of reformation and rehabilitation.
7.10.4. Life Imprisonment
Life imprisonment means imprisonment for life imprisonment under Section 55 of Penal Code to be commuted the sentence for a term not exceeding fourteen years. The Provincial Government may commute the sentences of death, imprisonment for life, rigorous imprisonment for a term not exceeding that to which he might have been sentenced, simple imprisonment for like term, fine (Section 402). The president may exercise the same power in case of sentence of death (Section 402-A). A convict cannot claim it; it is a welfare measure to be decided by the Government. The President has power to grant pardon, reprieve, and to remit any sentence passed by any Court under Article 45 of the Constitution.
The maximum term of punishment, in case of consecutive sentence shall, not be imprisonment for longer period than fourteen years (proviso to sub-section (2) of Section 35).
7.10.5. Punishments under Islamic Laws
Stoning to death at public place, for the offence of Zina liable to “hadd” if committed by married person, otherwise, whipping numbering hundred at public place, subject to confirmation by Court of appeal (Section 5(2). Offence of Zina (enforcement of hadood) Ordinance, 1979)
Amputation of right hand for offence of theft liable to “hadd" if committed for the first time, amputation of left foot up to ankle, if offence committed by same offender, If same offender has committed third time, to be punishment with imprisonment for life, the punishment of amputation of hand and foot, subject to confirmation by Court of appeal (Section 9 of Offence against Property (enforcement of hadood) Ordinance, 1979).
Whipping numbering 80 strips for the Offence of Qazaf liable to “hadd” subject to confirmation by Court of appeal, and evidence of such convict is not admissible before a Court of law (Section 7 of Offence of Qazaf (enforcement of Hadd) Ordinance, 1979).
7.10.6. Nature of sentence
Imprisonment may be simple or rigorous or partly simple and partly rigorous, depending upon the offence committed (Section 60 Penal Code). When an accused is convicted for more than one offence, sentences provided are to run consecutively i.e. one after the other, unless Court orders them to run concurrently.
Solitary confinement is provided under Section 73 of Penal Code. It is to be used very rarely inmost heinous of offences, not to be exceeded by three months.
7.10.7. Fine
Fine can be imposed with imprisonment and separately also. Amount of fine is unlimited unless provided otherwise, however the amount should be commeP.S'jrstS Wtot nature of offence and paying capacity of offender. It should not be excessive 83 Pena! Code).
7.10.8. Imprisonment in Default of Payment
A term of imprisonment in default of payment of a fine is not a “sentence”. In respect of an offence punishable with fine only, imprisonment in default shall be simple, and limited in duration (Section 67 Penal Code) as under:
AMOUNT OF FINE IN ANY OTHER CASE
Period of imprisonment in default Not to exceed two months
50 Rupees Not to exceed four months
100 Rupees Not to exceed six months
7.10.9. Preventive detention
Preventive detention is an exception to the right of liberty enshrined in Article 10 of Constitution. Preventive detention can be made with an objective to conserve peace and public tranquility, in apprehension of commission of cognizable offence and injury to public property etc. (Section 151).
7.10.10. Probation of Offenders Ordinance, 1960
Probation is also a welfare measure provided to give relief to first offenders and persons without criminal background. The Court can after examination of facts and circumstances ofthe case, direct for release of a convict on probation for a period not less than one year nor exceeding three years under which he is subjected to good behavior. If a convict fails to fulfill the condition of probation order, release is revoked and he is bound to present himself forgetting the sentence already awarded. Following sections of the Probation Offender Ordinance are relevant:-,
1. Section 2 - Deflations;
2. Section 3 - Courts empowered to pass probation order;
3. Section 5 - Power of Court to make probation order in certain offences;
4. Section 6 - Order of payment of costs;
5. Section 7 - Failure to observe condition of bond;
6. Section 8 - Power of Court in appeal and revision;
7. Section 9 - Provisions of Code to apply to sureties and bond;
8. Section 10 - Variation of condition of probation.
7.10.11. Considerations for grant of probation
The following Courts are empowered to grant probation to a convict:-
(1) High Court;
(2) Sessions Court; and
(3) A Magistrate
Different considerations are taken into account by Courts for grant of benefit of release on probation. Some of them are listed below: -
1. Age, sex or maturity of offender.
2. First or habitual offender.
3. Family and educational background.
4. Nature of crime and circumstances of the offence, whether acted under provocation.
5. Seriousness of offence.
6. Risk to society if offender is released.
7. Report of probation officer.
8. Short term imprisonment is to be usually avoided by giving probation.
Offences in which courts have generally refused to grant probation are:
1. Theft which could flare of in a communal violence.
2. Sexual offences.
3. Offence punishable with death penalty or life imprison- -ment.
4. Socio-economic offences or white collar crimes.
The Courts have power to grant a convict on probation:-
a) any male person not convicted of an offence not being an offence under Chapter VI or VII of Penal Code, or under Sections 216 A, 328, 382, 386 to 389, 392, 393, 397, 398, 399, 401, 402, 455,or 458 of that Code, or any offence punishable with death or imprisonment for life.
b) Any female person convicted of any offence other than an offence punishable with death.(Sections 3 and 5 of Probation of Offenders Ordinance, 1960)
7.11 ANCILLARY ORDERS
7.11.1. Compensation
When a Court holds a person guilty of an offence, it is followed by a verdict on quantum of sentence on convict. When Court imposes sentence either in the form of fine or substantive sentence, including a sentence of death, with fine, such Court may at the time of passing judgment, order the whole or part of fine recovered be applied to pay compensation to victim for any loss or injury caused by 'the offence and to compensate to the bona-fide purchaser of property restored to its original possession, being subject

Part Seven - Criminal
matter of offence of theft, criminal breach of trust and cheating (Section 545).
In Islamic system of criminal justice compensation to victim or his heirs have been provided in three forms, they are (1) “arsh” (2) “daman” and “diyat” as provided in Section 299 of Penal code, (1) “arsh” is payable to the victim or his heirs, for causing hurt liable to arsh, (2) “daman” is deter- -mined by the Court to be paid by the offender to the victim for causing hurt not liable to “arsh”. (3) “diyat” is a compen- -sation payable to the heirs of the victim on compounding of qisas, (the value of diyat shall not be less than the value of thirty grams of silver). The Federal Government by noti- -fication has to declare the value of silver on the first day of July each year (Section 323 of the Penal Code). Such compensations are in accordance of Islamic Injunctions. This power is intended to do justice according to Sharia to compensate the victims and or his heirs. It is indeed a step forward in our criminal justice system. It is thus recommend- -ed to all Courts to exercise this power liberally so as to meet the ends of justice in a better way. However, payment by way of compensation must be in terms of the provisions referred above, and period of payment of compensation may be ordered by installments, if necessary. The quantum of compensation in other cases may be determined by taking into account the nature of crime, justness of claim by victim and ability of the accused to pay. The criminal justice would look hollow if justice is not done to the victims of the crime.
In a complaint case of a non-cognizable offence, on conviction of the accused, the Court may, in addition to penalty imposed, order the convict to pay, whole or in part, costs incurred in prosecution of complaint, to the complainant and if convict fails to pay such cost then he can be ordered to undergo simple imprisonment not exceeding 30 days (Section 546-A).
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Part Seven - Criminal
7.11.2. Expenses of complainants and witnesses
Generally, in all State prosecutions the expenses of summoning the complainant and witnesses hall be paid by the Government in terms of Section 544 of the code at the prescribed scale in Appendix III to the Sindh Courts criminal circulars.
7.11.3. Disposal of case property
The trial court has to adjudicate in respect of case properties during the trial as well as subsequent to the trial, which were seized by the police during investigation or otherwise (Section 517). Property subject to speedy and natural decay may be sold immediately (Section 516-A).The Court may during the inquiry or trial by appropriate order, make proper custody of the property and on conclusion of such inquiry or trial, the property may be disposed of by destruction, confiscation or delivery to any person claiming to be entitled to possession thereof (Section 517(4)). Immovable property may also be restored to be person dispossessed thereof (Section 145(6)).The Court must act with imagination in an innovative way to watch and protect the interest of all concerned namely the prosecution, the complainant, the accused and the interest of public at large to avoid any incidental harm to any of them. Accordingly it is expedient in the interest of justice that a photocopy of currency notes may be taken by copying branch on the date fixed in court. Thereafter the amount may be given to the complainant on furnishing security of the amount by way of extra precaution.
In pending cases, the Court should exercise its power expeditiously and judiciously. The Court is required to pass appropriate orders immediately and articles are not to be kept for longer period at a police station. There are special provisions in special laws like Narcotic substance Act, Explosive Act 1884; Customs Act 1969; Copyright Act, which provide for disposal of such properties.
7.12 MISCELLANEOUS PROVISIONS
7.12.1. Irregular proceedings
Minor mistakes, irregularities and certain acts out of the ambit of powers do not vitiate the proceedings if they are taken in good faith as listed in Section 529. Those irregularities that vitiate proceedings i.e., the action taken by the Magistrate shall be void, are set out in Section 530. Proceedings in the wrong place are not fatal unless it occasions a failure of justice (Section 531). Chapter XLV of the Code sets out the effects of other non-compliances with specific sections of the Code. The presiding officers need to read them carefully.
7.12.2. Local inspection
Sometimes the circumstances of a trial or inquiry demand that the Court visit or inspect the place of occurrence for better understanding of the facts of the case. In such circumstances, the Court may visit or inspect the area in question under Section 539-B, and make a memorandum of such visit or inspection.
7.12.3. Investigations into non-cognizable offences
In a non-cognizable offence, the information received by Police will be entered into a special register kept for this purpose and intimation be sent to the area Magistrate (Section 155). While in a cognizable case, the Police can investigate without permission from the Magistrate. In a non- cognizable one, the police cannot. However, a Magistrate, having power to try such a case, may order investigation. Furthermore, the procedure to be followed in case the commission of a cognizable offence is suspected and the role of a Magistrate in such a case is given in Section 157.
7.12.4. Cognizance of offence by magistrate
Apart upon a police report, a Magistrate may take cognizance of any offence—
(i) Upon receiving a complaint of facts which constitute such offence;
(ii) Upon information received from any person other than a police officer, or
(iii) upon his own knowledge or suspicion (Section 190).
7.12.5. Power of summary trials
A first class Magistrate specially empowered by the Provincial Government in that behalf may summarily try the offences enumerated in Section 260. How a summary trial should proceed is given in Section 262 to 265, which should be read together to understand the details of such procedure
7.12.6. Bonds
Except in the case of a bond for good behavior, it is permissible to deposit a sum of money or government promissory note in lieu of executing a bond [Section 513]. When a bond stands forfeited or a surety dies or becomes insolvent, the procedure to be followed is given in Section 514. A minor is not competent to execute a bond, a surety or sureties, may be allowed under Section 514-B, to execute the required bond. All orders passed under Section 514, by a Magistrate may be appealed against to the Sessions Judge under Section 515.
7.12.7. Forfeiture of bond
Section 514 sets out the procedure to be followed. Once a bond is forfeited, the penalty is to be imposed and recovered from the surety.
7.12.8. Inquiries and trials
The procedure with regard to inquiries is the same as in the case of trial except that an inquiry will culminate only in a report or recommendation but not in acquittal or conviction. All the principles of fairness and justice will equally be applicable in inquiries. However, the general provisions for determination of the venue or those relating to the issuance of summons or warrants, etc., are given in Chapter VI (Section 68 to 89) The condition requisite for initiation of proceedings and the provisions for allied matters are contained in Chapter XV of the Code.
7.12.9. Miscellaneous provisions in respect of women
The investigation of the offence of Zina against a woman to be investigated by an officer not below the rank of a superintendent of police, nor such accused be arrested without permission of the Court (Section 156-B). Likewise Section 167 (5) and (7) require that a female accused shall not be remanded to police custody except in offences of qutal or dacoity. The police officer making an investigation may interrogate such accused in prison in presence of officer of prison and a female police-officer. If the accused required to be taken out of prison for the purpose of investigation, permission of Magistrate is required and such accused be taken out of prison in company of female police-officer. Whenever, a woman has to be searched, another woman shall perform the search with strict regard to decency (Section 52). In respect of the execution of a search warrant, under the proviso to Section 48, if such place is an apartment in the actual occupancy of a women (not being the person to be arrested), the police-officer shall, before entering such apartment, give notice to such woman that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing. A woman accused of non-bail able offences may be released on bail. A woman sentenced to death who is found to be pregnant, the High Court shall order the execution of the sentence to be postponed, and may, if think fit, commute the sentence to life imprisonment by High Court (Section 382).
7.12.10. Special provisions regarding children
The Juvenile Justice System Ordinance 2000 has been promulgated, in addition to not in derogation of other laws in the field (Section 14), whereby, boys and girls under the age of 18 years of age, at the time of commission of offence, are “Child”. The aims and objects of the ordinance are:-
(i) Protection of children involve in criminal litigation, their rehabilitation.
(ii) The trial of young offender to be held by Juvenile Courts.
(iii) Juvenile offenders be reformed rather punished.
(iv) No joint trial of a child with adult person
(v) Legal assistance at the expense of state.
Special Provisions regarding juveniles in Penal Code and Code:-
a) Section 82 of Penal Code provides that child below 7 years of age is incapable of committing a crime (doli- incapax).
b) Section 83 of Penal Code provides that nothing is an offence, which is done by a child between 7 to 12 years of age who has not attained sufficient maturity to understand the nature and consequences of his conduct.
c) Section 29-B of the Code provides that if a person under 15 years of age commits offence not punish- -able with death or life imprisonment, he is not to be tried in a regular criminal Court but by a Judicial magistrate (Special Court) empowered under the relevant law providing for treatment, training and rehabilitation of youthful offenders (Reformatory School Act).
7.13 PREVENTION OF OFFENCES
Under the provisions of Probation of Offenders Act, convict/accused can be released on probation for keeping peace and good behavior for maximum period of three years. In addition to furnishing a bond, accused can be also kept under the supervision of the Probation Officer who also can impose certain restrictions upon the accused. In case of default of any condition imposed upon a convict by Court while releasing him on probation, the accused can be summoned and to show cause why he not be punished according to law for the offence he had already convicted.
Mainly Magistrate deals with the matters pertaining to apprehended breach of peace or disturbance of public tran- -quility under various provisions of Code.
7.13.1. Offences committed in the presence of a magistrate
If an offence is committed in the presence of a Magistrate, he has the power to arrest the offender himself or through any person, subject to provisions as to bail commit the offender to custody (Section 64).
7.13.2. Public nuisance and dispute over immovable property
Matters relating to the public nuisance (Section 133), dispute over immovable property which may create breach of peace (Section 145) comes within jurisdiction of Magistrate under the provisions of the Code.
7.14 SESSIONS JUDGES
7.14.1. Powers
Sessions and additional Sessions Judges try the offences of serious nature as enumerated in Column No.2 of the II Schedule of Code. A Sessions Judge or an additional Sessions Judge is empowered to pass any sentence authorized by law, but in case of sentence of death passed shall be subject to confirmation by the High Court (Section 374). The Sessions Judge/additional Sessions Judges can also hear appeals from orders and sentences passed by Assistant Sessions Judge, and Magistrate in trial of any person under Section 349, (a) when in any case any sentence of imprisonment for a term not exceeding four years (Section 408 of Chapter XXXI)
Revision applications may be filed before Sessions Court to examine the legality and propriety of orders passed by Magistrate and assistant Sessions judge under Section 439-Aof Chapter XXXIII
7.14.2. Pre-arrest bail by session court
Pre-arrest bail can be granted by Sessions Judge or Additional Sessions Judges in accordance with provisions of Section 498. It can be granted to a person who has reason to believe that he may be arrested on accusation of having committed a non-bail able Offence. Provisions of Section 498 do not apply in cases where the allegations are in respect of a bail able offence only. This provision can be used even in cases where non bail able warrants have been issued against accused by a Court of law.
7.14.3. Bail after arrest
Section 497 provides special powers to High Court and Court of Sessions in respect of bail after arrest. Gravity of offenceprevious involvement of accused in similar matters and likelihood of availability of accused during trial are some of considerations to be kept in mind at the time of granting bail after the arrest. Likelihood of the accused tampering with prosecution evidence when on bail has also not to be lost sight of. Some special Acts do restrict power of the Sessions Court to grant bail in such like offences. While Section 497 empowers the Court of the Sessions to grant bail after arrest, Section 497 (5) empowers the Court of Sessions to cancel the bail of a person who had been so admitted to bail. Considerations for refusal of bail and cancellation of bail already granted are quite different.
7.14.4. Trial
Procedure of trial before a Court of Sessions is enumerated in Chapter XXIIA (Section 265-A to 265-N). Besides provisions of Chapter XIX, provisions of Chapter XXV regarding evidence in enquiries and trial and general provisions as to enquiries and trial mentioned in Chapter XXIV also need to be considered by Court of the Sessions during course of trial.
7.14.5. Power for Habeas Corpus
The Section 491 gives power to the High Court to issue direction of the nature of a ‘habeas corpus’ in respect of power specified in clauses (a) to (f). Section 491(1-A) gives High Court power to delegate its powers specified in clauses (a) and (b) of sub-section 491(1) by general or special order direct, subject to such conditions, if any, as may be specified in the order published in the official Gazette, be exercisable also by a Sessions Judge or Additional Sessions Judge within the territorial limits of Sessions Division.
7.14.6. Appeals
Section 404 says that no appeal shall lie from any judgment or order of a Criminal Court, except as provided for by the Code or by any other law for the time being in force. An appeal against orders requiring security or refusal to accept or reject surety for keeping peace or good behavior can be made to Court of Sessions under Section 406.
7.14.7. No appeal when pleaded guilty
Section 412 bars an appeal when accused pleads guilty. However, appeal lies only to the extent of legality of sentence in such matters.
Section 413 restricts appeal in respect of petty cases. It deals with matters where sentence of the imprisonment for a term not exceeding six months only or of fine not exceeding two hundred passed by High Court, or in which Sessions Court passed a sentence of imprisonment not exceeding one month only or in which a Court of Sessions or Magistrate passes a sentence of fine not exceeding Rs.50/. No appeal lies if a Magistrate of First Class passes only a sentence of fine not exceeding Rs.2000/- in a case tried summarily (Section 414). Section 415-A provides that where more persons then one are convicted in one trial and an appeal able Judgment or order has been passed in respect of any of such persons, all or any of the persons convicted at such trial shall have a right to appeal.
Every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and every such petition shall be accompanied by the copy of Judgment or order appealed against (Section 419).
If the appellant is in jail he may present the petition of appeal through Officer in Charge of the Jail (Section 420) In case the Appellate Court considers that there are no sufficient grounds for interfering with the impugned order, the Appellate Court can dismiss the appeal summarily after giving the appellant reasonable opportunity of being heard (Section 421). In case the appeal is not summarily dismissed, then provisions of Section 422 to be followed. Powers of the Appellate Court to interfere with, stay arrest or uphold the impugned order/Judgment are provided under Section 423.
7.14.8. Appeal against acquittal
The Provincial Government may, subject to provisions of sub-section (4) direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court (Section 417(1)). (2) If an order of acquittal is passed in any complaint case and the High Court on an application by the complainant grants Special leave to appeal from the order of acquittal the complainant may present an appeal to High Court (417 (2-a)). A person aggrieved by the order of acquittal passed by any Court, other than a High Court, may, within thirty days, file an appeal.
No appeal against acquittal lies before the Sessions Judge or Additional Session Judge under the Code. The Appellate Court is competent to reverse, sustain or remand back the case for further trial; in case the Court holds the accused guilty, then an appropriate sentence according to law would be passed.
7.14.9. Powers of revision
A Sessions or Additional Sessions Judge has the power to call for and examine the record of any proceeding before any subordinate Criminal Court situate within its local jurisdiction for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed (Section 439-A). While calling for such record the Court of Sessions can direct that execution of any sentence or order be suspended and if the accused is in confinement may be released on bail.
7.14.10. Power of sessions judge to transfer cases & appeals
The Sessions Judge may order that any particular case be transferred from one Criminal Court of any other Criminal Court in the Sessions division. Sessions Judge may also withdraw any case or appeal from, or recall any case or appeal which has been made over to any Additional Sessions Judge, Assistant Session Judge or Judicial Magistrate (Section 528), save a case from the file of additional Sessions Judge in which trial has proceeded.
7.14.11. Bail in appeals
The Appellate Court may, for the reasons to be recorded, suspend the execution of the Judgment/order appealed and also release the appellant on bail during the pendency of appeal [Section 426],
7.14.12. Further evidence
Appellate Court may take further evidence or direct it to be taken by a Court of Sessions Judge or Magistrate. The evidence so recorded by Court of Sessions or Magistrate, he shall certify the same and forward it to Appellate Court and such appellate Court shall thereupon dispose of the appeal (Section 428).
7.15 JUVENILES
7.15.1. Jurisdiction
The Juvenile Justice System Ordinance, 2000 provides for protection, treatment, development and rehabilitation in the society of delinquent juveniles and, re-organization of juve- -nile Courts and matters connected therewith and incidental thereto. No child be:-
a) Awarded punishment of death, or ordered to labor during the time spent in any borstal or such other institution; and
b) Handcuffed, put in fetters or given any corporal punish- -ment at any time while in custody; Provided that where there is reasonable apprehension of the escape of a child from custody, he may be handcuffed.
The proceeding so Juvenile Courts are not be published.
7.15.2. Definition of child
“Child” means a person who at the time of commission of an offence has not attained the age of eighteen years (Section 2(b).
If a question arises as to whether a person, before juvenile Court, is child for the purposes of the Ordinance, the Court shall record a finding after such inquiry which shall include a medical report for the determination of age of the child (Section 7)
7.15.3. No joint trial of a child and adult person
No juvenile can be charged with or tried for any offence together with a person who is not a juvenile. If a child is charged with commission of offence for which under Section 239 of the code, or any other law for the time being in force such child could be tried together with an adult, the Court taking cognizance of the offence shall direct separate trial of the child by juvenile Court (Section 5)
7.15.4. Juvenile court
The provincial Government shall, in consultation with Chief Justice, establish one or more juvenile Courts for any local area, by a notification in official Gazette.
The High Court may;- a) Confer power of juvenile Court on;
I. Court of Sessions; or
II. Judicial Magistrate
b) Appoint, from amongst practicing advocate having seven years of practice, presiding officer of juvenile Courts with the power of Judicial Magistrate.
The juvenile Court shall have exclusive jurisdiction to try cases in which a child is accused of commission of an offence (Section 4).
7.15.5. Juvenile court’s procedure
Juvenile Court to follow the procedure provided in the Code.
A juvenile Court not to take up any other case on a day when the case of a child accused is fixed for evidence.
No person to be present at any sitting of the juvenile Court except:-
(a) Staff of juvenile Court.
(b) Parties to the case and the police officers.
(c) Such other persons as the juvenile Court direct to be present.
(d) Guardian of the child (Section 6).
7.15.6. Probation officer’s report
When a juvenile is arrested for commission of an offence, the officer in charge of the police station, besides informing the parent or the guardian of juvenile about the arrest, shall also inform the Probation Officer of such arrest to enable him to obtain information about the child and other material circum- -stances which may be of assistance to the juvenile Court for making inquiry and report on child’s character, educational, social and moral background. The report of the Probation Officer shall be treated as confidential (Section 9).
7.15.7. Arrest & bail
As soon as a juvenile is arrested in commission of an offence by office-in-charge of the police station, shall inform the guardian of the child, and the concerned probationer officer. Whenever a child accused of a non-bail able offence is arrested, he shall, without any delay and in no case latter than twenty-four hours from such arrest, be produced before juvenile Court. A child accused of bail able offence shall be released under the provisions of Section 496 of the Code by the juvenile Court. Where a child under the age of fifteen years is arrested for an offence, which is punishable with imprisonment of less than ten years, shall be treated as if he was accused of commission of a bail able offence, unless it appears that there are reasonable grounds that the release of the child shall bring him into association with any criminal or expose the child to any danger, in which case, the child shall be placed under the custody of a probation officer, but shall not under any circumstances be kept in a police station or jail. The Child has statutory right of bail if the trial has not concluded, and delay is not occasioned on his part; (I) If being, accused of an offence punishable with death has been detained for a continuous period exceeding one year and trial has not concluded; (II) If being, accused of any offence punishable for imprisonment for life has been detain- -ed for a continuous period exceeding six months and trial has not concluded; (III) In any other offence not falling in above categories, has been detained a continuous period exceeding four months and trial has not concluded (Section 10).
7.15.8. Restrictions on remand in custody
Whenever a child is not released on bail, then the officer in charge of the police station shall be placed under the cus- -tody of a probation officer or a suitable person or institution dealing with the welfare of the children, if parent or guardian of the child is not present, but shall not under any circumstances be kept in a police station or jail (Section 10 (3))-
7.15.9. Release on probation
Where on conclusion of a trial, the juvenile Court finds that a child has committed an offence, the Court may, if think fit:-
a) Direct the juvenile to be released on probation for good conduct and place him under the care of guardian or any suitable person on executing a bond with or without surety, for the good behavior and well-being of the child for any period not exceeding the period of imprisonment. The child so released on probation be produced before juvenile Court periodically on such dates and time as it direct;
b) Make an order directing the child offender to be sent to a borstal institution until he attains the age of eighteen years or for the period of imprisonment whichever is earlier;
c) Reduce the period of imprisonment or probation in case the Court is satisfied that further imprisonment or pro- -bation shall be necessary (Section 11).
7.15.10. Restrictions on orders that may be passed in respect of a child
A juvenile can’t be sentenced to death, or ordered to labor during the time spent in any borstal or such institution, and not to be handcuffed. Put in fetters or given any corporal punishment at any time in custody (Section 12)

Part VIII, Administration

8.1 ADMINISTRATIVE RESPONSIBILITIES
8.1.1. The Court’s administration
The Presiding Officer of a Court, both civil and criminal, ought to function in premises which are congenial, conve- -nient, dignified and secure for the Judge, Court staff, lawyers, litigants and others concerned or involved in the administration of justice. In order to achieve the required standards, the Judges must constantly pay attention to all that can be done.
A Presiding Officer should closely monitor and supervise Court staff and the process serving agencies to ensure that they comply with the requirements of law and directions of the Court. Corruption, abuse of the process and inefficient performance of duties should not go unnoticed and unattended. The ultimate responsibility for whatever goes on in the offices of the Court is that of the Presiding Officer. Judges are required to inspect in detail the work of the minis- -terial staff and the registers and in particular, look through the oldest files pending and see whether unnecessary delay has occurred.
8.1.2. Supervision by district judges
District Judges are not responsible merely for the proper distribution of work amongst the Courts, and for the disposal of appeals. They are required to ensure that district judiciary follows the prescribed procedure in all their proceedings and are given guidance in matters where it is needed. The supervision exercised should be both active and continuous in all matters affecting judicial administration. Inspection of Courts by district judges should be conducted regularly.
The Presiding Officer of every Court is responsible for regular inspection of registers and accounts. Money passing through the Court must be duly accounted for and should be verified weekly. Special vigilance is called for in supervising money transactions, which should be inspected frequently and carefully. Any irregularity must be reported to the District and Sessions Judge.
The Judges empowered or required must attend to timely preparation of budgets of the Courts, control expen­diture and periodically inspect and verify the accounts. This will require foresight, imagination and leadership in taking care of the needs of the Courts, planning and development of the Court buildings in future.
Demands for supply for the ensuing years must be incorporated into budget estimates. Budget forms should be submitted on due dates.
8.1.4. Court buildings
Court buildings include the District and Sessions Judges Courts, Sessions judge’s houses, and Subordinate Judges Courts and all subsidiary building attached to them. Inspection reports should include the state of the Court- -house, whether it is in good repair, properly kept and pro- -vides adequate accommodation. Library facilities must be inspected to ensure that they comply with the minimum prescribed standards by the High Court.
8.1.5. Facilities for litigants and counsel
Bar Rooms that are part of the building are included in Court Buildings. Inspections should not only include arrangements for the Bench but whether accommodation for the Bar is sufficient. Budgets need to be prepared for works to be carried out in respect of buildings and local arrangements will need to be known as to where these should be submitted and in what form. In some cases they should be submitted first to the High Court for sanction before calling on Public Works Departments.
8.1.6. Interference with judicial discretion or powers
Sessions Judges and Magistrates should immediately report any attempt made by any person of influence or authority directly or indirectly interfering with the exercise by them of their judicial discretion or power. The report should be made in confidence to the Registrar of the High Court.
8.1.7. Trial in family and rent cases
While trying Labor, and rent cases, the Presiding Officer is not a Court in the strict sense. The formalities of law and procedure do not bind them. What is to be addressed is fairness in proceedings and a reasonable opportunity to the parties to present their case. The family matter should be disposed of expeditiously. To ensure speedy disposal of family matters, family Court has been established in every district.
8.1.8. Citizen court liaison
Resources permitting, appropriate arrangements should be made to facilitate litigants in seeking and obtaining adequate, accurate and timely information and guidance with regard to Court procedures and requirements.
8.2 CONDUCT RULES
8.2.1. Court holidays and working hours
Normal holidays and court hours are observed in the Courts Subordinate in Sindh as follows:-
Court Holidays
Holidays in Court are observed in the courts Subordinate to High Court in accordance with Court calendar issued by the High Court of Sindh every year.
District & subordinate court
08.30 A.M to 01.30 PM Court/Office Timings
1. P.M to 02.00 PM Prayer/Lunch break
02.00 PM to 04. PM Chamber/ Office
8.2.2. Establishment
The appointment and conditions of service of the employees working in the District and Subordinate Courts, Sindh are governed by the Rules of “Sindh Judicial Staff Service Rules 1992”.
However, In respect of pay, leave, pension, super- -annuation, and all other matters not expressly provided for in these Rules, employees of the District and Subordinate Courts are governed by such Rules as are applicable to the civil servants of Provincial Government of Sindh.
8.2.3. Change of name
Every Government servant goes by his name as entered in the first page of his Service Book, which in turn is based on the name as entered in the School Certificate, produced by him at the time of recruitment. If a Government servant desires to adopt a new name or to effect modification in his existing name, the following procedure has to be gone through:-
All cases of addition / deletion or change in name / surname:-

□A Government employee wishing to adopt a new name or to effect any modification in his / her existing name may do so, formally by a deed changing his / her name.
□The execution of the deed should be followed by publication of the change in a prominent local newspaper as well as in the Gazette of Provincial Government employees’ own expense.
Addition / change in surname only on account of marriage / re-marriage of a female Government employees:-
□ If the Government employee desires a change, she should give a formal intimation to her appointing authority of her marriage and request for a change in her surname.
□Particulars of the husband may be given for making necessary entries in the Service Book.
Deletion of surname or reversion to maiden name on divorce/separation or death of the husband of female Gover- -nment employee:-
□an intimation to the appointing authority regarding change in marital status; and
□a formal request for reversion to her maiden name.
8.2.4. Date of birth
Declaration of date of birth - Every person newly appointed to a service or a post under Government shall, at the time of the appointment, declare the date of birth by the Christian era with as far as possible confirmatory documentary evidence such as a Matriculation Certificate, Municipal Birth Certificate and so on. If the exact date is not known, he shall be examined by medical superintendent, Services Hospital to ascertain his age and age so certified be his age. The date of birth once recorded at the time of joining government service shall be final and thereafter no alteration in the date of birth of a civil servant shall be permissible.
Entry of date of birth in service records - The actual date or the certified date of birth in the manner stated above shall be recorded in the Service Book, or any other record that may be kept in respect of the Government servant’s service under Government and, once recorded shall not be altered.
8.2.5. Permission under conduct rules
Every Court servant is required to obtain permission in respect of transaction of sale and purchase of any kind of property of value exceeding one hundred thousand rupees from head of the department.
Activities requiring prior permission/sanction - Prior permission of the prescribed authority is necessary in respect of the following activities:-
1. To own or conduct or participate in the editing or management of any newspaper or any other periodical publication.
2. To publish a book by himself or through a publisher or contribute articles to a book.
3. To participate in a radio broadcast or contribute Article to such broadcast.
4. To give evidence in connection with any enquiry conducted by anybody other than the Federal/ Provincial Government or Parliament or a Provincial Legislature or a Judicial authority or a Departmental authority subordinate to the Government.
5. To accept contributions for fund or to associate with raising of any funds or other collections in cash or in kind in pursuance of any object whatsoever.
6. Acceptance of employment in a foreign organization by a family member.
7. To accept gift from the members of the staff or other person.
8. To accept membership of N.G.Os run by Foreign Agencies;
9. To receive any complementary or valedictory address or accept any testimonial or attend any meeting or entertainment held in his honor or in honor of any other Government servant.
10. To engage directly or indirectly in any trade or business or negotiate for or undertake any other employment - To participate or associate in a spon- -sored (TV/Radio) programme.
11. To undertake a part time employment on remunerative occupation basis.
12. To negotiate for commercial employment while in service.
13. To acquire or dispose of any immovable property by lease, mortgage, purchase, sale, gift or otherwise either in his own name or in the name or any member of the family.
14. To approach the Court of law or Press for the vindication of any official Act which has been the subject matter of adverse criticism or an attack of a defamatory character.
15. To stay as guest with foreign diplomats or foreign nationals aboard.
8.2.6. Activities which are not totally permissible
1. Government servants should so conduct themselves in public as to leave no room for an impression to arise that they are likely to favor persons belonging to any particular sect, in their official dealings. Therefore, participating in Sectarian activities or the direct or indirect use of official position and influence in such activities on the part of the Government servant would invite disciplinary action.
2. Government servant should not be a party to a joint representation relating to matters of common interest.
3. Using official position or influence directly or indirectly to secure employment for any member of his family in any company or firm.
4. Dealing with any matter or giving or sanctioning any contract to any company or firm or any other person if any member of his family is employed in that company or firm or under that person or interested in the matter or contract. In such cases the Government servant shall refer every such matter or contract to his official superior and his orders complied with in such cases.
5. Being a member of or associated with any political party or any organization which takes part in politics nor shall he take part in, subscribe in aid of, or assist in any other manner, any political movement or activity. Canvassing or otherwise interfering with or using his influence in connection with an Election is also prohibited.
6. Proposing or seconding the nomination of a candidate at an Election or acting as a Polling Agent.
7. Joining or being a member of an association the objects of which are prejudicial to the interests of the sovereignty and integrity of Pakistan, or public order or morality.
8. Participating in any demonstration which is prejudicial to the interests of the sovereignty and integrity of Pakistan, the security of the State, friendly relations with foreign States, public order, decency or morality, or which involves contempt of Court, defamation or incitement to an offence.
9. Resorting to or abetting any form of strike or coercion or physical duress in connection with any matter per- -taining to his service or the service of any other Government servant.
10. Making any statement to Press or for a broadcast in radio or in a public utterance which -
□has the effect of an adverse criticism of any current or recent policy or action of the Federal Government or a Provincial Government;
□is capable of embarrassing the relations between the Federal Government and the Provincial Government or a foreign country.
11. Communicating, otherwise than in a good faith of performance of official duties, directly or indirectly, any official document or any part thereof to any Govern- -ment servant or any other person to whom he is not authorized to communicate such document or infor- -mation.
12. Private or personal correspondence on official matters with Foreign Embassies / Missions/ High Commissions.
13. Acceptance of passage money and hospitality by officers of Government from foreign contracting firms not permissible.
14. Canvassing business on Commission Agency owned or named by members of his family shall be deemed to be a breach of service rules.
15. Frequent purchase or sale or both, of shares, securities or other investments.
16. Making himself, or permitting any member of his family or any person acting on his behalf to make, any investment which is likely to embarrass or influence him in the discharge of his official duties.
17. Lending or borrowing or depositing money with any person or firm or private company within the local limits of his authority or with whom the Government servant is likely to have official dealings or otherwise place himself under any pecuniary obligation to such person or firm or private company.
18. Lending money to any person at interest or pH a manner whereby return in money or in kind is charged or paid.
19. Bringing or attempting to bring any political or other outside influence to bear upon any superior authority to further his interests in respect of matters pertaining to his service under Government.
20. Entering into or contracting a marriage with a person having a spouse living. However, the Government may permit a servant to enter in to or contract any such marriage, if such marriage is permissible under the personal law applicable to the Government servant and the other party to the marriage.
8.3.7. Declaration of assets
Every Government servant shall, at the time of entering Government service, make a declaration to Government, all his moveable and immoveable properties including share, certificates, securities, insurance policies, cash and jewelry having a total value of fifty thousand rupees. He shall be required to file annual return of assets as well.