Wajid Ali Khaskheli Law Chamber

02/07/2025

Thanks Almighty, my seventh case law has been published in MLD recently.

18/03/2025

16/07/2024

The appointment of ex-judges as ad-hoc judges in the Supreme Court of Pakistan has raised several concerns that merit discussion:
An independent judiciary is at the root of a democratic system. Mind you, appointing retired judges as ad-hoc judges may create an impression of dependence or influence. The judiciary is supposed to encourage fresh talent besides being a merit-based institution. However, relying on retired judges would possibly bar the appointment of young talented aspirants, who can essentially offer different outlooks and vigor for the judiciary.
Regular appointments of retired judges might lead to instability and lack of continuity in the Supreme Court. This helps permanent judges because they have come up through the ranks and so familiar with current cases as well as judicial philosophy hence it would be easy for them to sustain uniformity in resolution dockets.
Retired judges may have conflicts because they could have had some past roles or affiliation. Consequently, this affects democratic procedure and neutrality at all.

16/07/2024

The case C.P.488-K/2023, Sohail Ahmed v. Mst. Samreena Rasheed Memon & others, deals with the jurisdiction of Pakistani Family Courts in cases where the plaintiff/wife is a dual citizen residing abroad. The relevant legal framework includes the West Pakistan Family Courts Rules, 1965, and the West Pakistan Family Courts Act, 1964.

Rule 6 of the 1965 Rules, which uses the term "ordinarily resides," allows for a broader interpretation of residence than "permanent residence." According to the ruling, the term "ordinarily" means usual, common, settled, customary, and reasonable, enabling the Family Courts in Pakistan to assume jurisdiction even if the wife resides abroad but has significant ties to Pakistan, such as frequent visits and family connections.

The judgment highlights that the Family Courts Act, 1964, was designed to expedite the resolution of marital and family disputes, facilitating the wife by allowing her to file for dissolution of marriage based on her convenience. The Act mandates that courts attempt genuine reconciliation between the parties, but if reconciliation fails, the court must dissolve the marriage without recording evidence if the wife is unwilling to continue the marital relationship.

This case emphasizes that the legislative amendments are in line with Islamic principles, particularly the right of Khula, enabling a woman to seek dissolution of marriage if she cannot live within the limits set by Allah. The court's role is to ensure justice and avoid technicalities, reflecting the intention to balance procedural fairness with the practical realities faced by women seeking marital dissolution.

29/06/2024

In the decision 2024 MLD 1015, it was highlighted that sessions cases (excluding Hudood cases) should usually be tried at District Headquarters. However, when the accused appears before the Magistrate under section 190 Cr.P.C., they must be given the option of a trial at the subdivision. If there are multiple accused and not all consent to the subdivision trial, the Sessions Judge decides the trial's location.

In this case, on 12.10.2022, the police presented the Petitioner to the Magistrate in custody, while Zahid Hussain appeared voluntarily as he was on bail. The Magistrate forwarded the case to the Sessions Judge, Narowal, without asking the accused their trial location preference as required by Letter No. 7886/RHC/MIT dated 25.5.1999.

The Sessions Judge, on 17.10.2022, assigned the case to Additional Sessions Judge, Shakargarh, who set a hearing for 20.10.2022. On this date, the Duty Judge, in the absence of Mr. Asif, issued summons but did not inquire about the trial location preference either.

The letter provides the accused the right to choose the trial location, which was not afforded in this instance. Respondents did not contest the petition, so the court granted the Petitioner’s request. The case was transferred from Mr. Asif Bashir to the Sessions Judge, Narowal, with instructions for an expedited trial to conclude within six months.

Crl. Misc. No.76558/T/2022
Muhammad Waqar alias Fauji vs. The State etc

28/06/2024

"Justice Mansoor Ali Shah's Landmark Ruling on Pakistan's Juvenile Justice System: A Comprehensive Analysis"
1) Is rooted in therapeutic jurisprudence, being a therapeutic agent, forms the bedrock of the juvenile justice system, integrating the societal responsibilities of sanction and rehabilitation in line with the principles of rehabilitative and restorative justice.

2) Provides a robust framework for rehabilitative and restorative justice rather than retributive.

3) Aims to protect the rights, needs, and dignity of juvenile offenders.

4) Preserves the identity, social well-being, and holistic development of the child.

5) Adopts child-centered approach.

6) Demonstrates a deep commitment to upholding international obligation (UNCRC) and constitutional mandate (Articles 25 and 35).

23/06/2024

Can a cross-version be recorded in a case after the conclusion of the trial?

No law allows recording a statement under section 161 Cr.P.C. once a case is decided. After the Supreme Court’s ruling in Sughran Bibi that all versions after filing the FIR are recorded under section 161 Cr.P.C., reinvestigation or further investigation in a concluded case is impossible.

High Court sum up the law on the issue as follows:

Sughran Bibi merely prohibits the registration of a second FIR, not a cross-version. Therefore, so long as the trial has not concluded, it can be permitted, even at a belated stage, to prevent a miscarriage of justice. If the (original) FIR has been taken to its logical end, the only option for the individual who wishes to prosecute another on his cross-version is to file a private complaint.
Here, I agree with Mr Mirza, the amicus curiae, that when the police present the report under section 173 Cr.P.C. (challan), the State commits itself to the version set out therein and, believing it to be true, seeks the accused’s trial. It would be ludicrous to direct the State to register a new FIR – or a cross-version – of the same occurrence, reinvestigate it and launch another prosecution in absolute contradiction of the earlier process.

I may emphasize that a private complaint is an adequate and efficacious remedy.

WP No. 18561/2021 Zubaida Khanum Vs. District Police Officer etc.
2024 PCr.LJ 1168

23/06/2024

What is a Good Judgement and how it looks like?

It is well settled that characteristic of a good judgment is that it must be self-evident and self-explanatory; in other words, it must contain reasons that justify conclusions arrived at and these reasons should be such that a disinterested reader can find it convincing or al least reasonable.
[PLD 2007 Pesh. 14]

The reasoning should not be left to the imagination of reader for such an order is apt to be termed as arbitrary.
[1982 CLC 2380; 1976 SCMR 459]

Where law provides for writing, announcing and signing of a judgment, all that must be done is in a way to give validity to the judgment.

[2007 SCMR 307]

21/09/2023

Magistrate Order regarding discharge of an accused or cancellation of a case pending investigation etc, is an administrative order not judicial.

21/09/2023

Chaos was the law of nature; order was the dream of man.