Al-Vakeel Law Associates

25/05/2025

25/05/2025

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25/05/2025

VVVVI. MUST READ JUDGEMENT.
2025 SCMR 955
It is essential to clarify that an oral gift is legally permissible. The entry into the Rozenamcha Waqiati does not itself serve as the instrument of the gift. Even if a mutation based on an entry in the Rozenamcha Waqiati is attested, this documentation does not confer ownership rights. This Court has consistently held that mutation proceedings are not judicial in nature; they are administrative processes that merely embody the ownership changes to ensure the realisation of land revenue but do not inherently confer title to the property involved. Consequently, when the authenticity of any mutation is brought into question, it is incumbent upon the parties asserting their rights through the mutation to refer back to the original transaction that led to the mutation's attestation.(naeem) They must then substantiate their claims concerning this original transaction, which underpins the entry and validation of the mutation.

Fraud and justice never dwell together (fraus et ius nunquam cohabitant). This pristine maxim brings us to examine whether the factor of time limitation was rightly held to be a significant obstacle to the rectification of fraud, particularly given the specific facts and circumstances of the case at hand. A thorough review of the records reveals that this time limitation was pivotal in influencing the courts below to dismiss the appellant’s suit. (naeem)We say, with the utmost respect, that this approach was misguided, for such an approach had failed to remedy the underlying wrong stemming from fraud and left the appellant’s rightful claims unaddressed. In light of this, it becomes essential to emphasise that in these situations, the courts must act as protectors of justice, wielding their authority to effectively restore the rights of aggrieved individuals rather than merely producing perfunctory rulings that sidestep the essence of justice. Therefore, the courts must seize any justifiable reason that might allow for removing obstacles impeding fair resolutions. This ensures that individuals are granted their rightful claims. To deviate from this crucial principle invites the potential for societal corruption and lawlessness—an outcome that must be rigorously avoided. Fraud, by its very nature, unravels all aspects of any transaction, regardless of how solemnly it may have been conducted under the law.
C.A.113-L/2010
Mst.Ramzanoon Bibi v. Ibrahim (deceased) through L.Rs ,etc
Mr. Justice Shahid Waheed

25/05/2025

2025 SCMR 868
Parameters enshrined under Article 22 of Qanoon-e-Shahadat Order 1984, and Rules and Order of Lahore High Court volume 3 Chapter 2 Part C and rule 26.32 of chapter 26 volume 3 of Police Rules 1934

Crl.A.282-L/2020
Rashid and another v. The State

25/05/2025

2025 SCMR 802
The failure to frame a charge, particularly in cases involving distinct offences, goes to the root of the trial and constitutes a material illegality, that cannot be cured U/Section 537 of the Code.

The distinction between a defective charge and a complete omission to frame a charge is of paramount importance, while former may not necessarily vitiate a trial if it does not cause prejudice to the accused, whereas the later is an infringement of a statutory obligation, rendering the trial fundamentally flawed. Provision 233 of the Code, mandates that every distinct offence requires a separate charge, and failure to frame such a charge deprives the accused of notice regarding the precise nature of the accusation. Similarly, Section 221 of the Code, envisages, that a charge must state the offence with which the accused is charged. When a trial proceeds without framing a charge for a distinct offence, it not only violates these statutory provisions, but also impairs the accused’s ability to defend themselves, leading to a trial that cannot be sustained in law.

Although Section 237 of the Code allows a conviction for a different offence than the one charged under certain circumstances, this provision is subject to Section 236, which applies only in cases of doubt as to which offence has been committed. It cannot be invoked to convict an accused for a distinct offence under a different penal statute, as held in (Zahid Shahzad, 1981)6. The principle, that a person cannot be convicted of an offence for which they have not been charged is well established, that a charge must be framed for every distinct offence to satisfy the requirements of a fair trial.

The omission to frame a charge for a distinct offence is a substantial illegality, rendering the trial a nullity. Such an omission is not a mere irregularity, that can be cured u/Section 537 of the Code; rather, it is a defect, that strikes at the root of the proceedings, necessitating intervention to prevent miscarriage of justice. Furthermore, the procedural safeguard U/Section 342, Cr.P.C. ensures that the accused.

is confronted with all the incriminating evidence to afford them an opportunity to explain the circumstances against them. The omission to “frame a charge”, coupled with a failure to put a material accusation to the accused U/Section 342, Cr.P.C., is a grave procedural irregularity that cannot be remedied U/Section 537 of the Code, as it results in a fundamental breach of the right to a fair trial.

Criminal Appeal No.28 of 2023
Shabeer Ali vs The State

25/05/2025

2025 SCMR 894
What is "Reasonable doubt".

VVVI. MUST READ JUDGEMENT.

The settled principle of law is that “accused is the favorite child of law’’, therefore the benefit of doubt is extended to the accused commonly and frequently, but we must not forget that it is based upon some "Reasonable doubt", and not on the whims of a judge. I take the prerogative in defining the term "Reasonable doubt", when the law requires it to become the basis for advancing the benefit of doubt, it means having regard to the circumstances of the case which (naeem)includes following points:-

 It may be entertained by persons of common prudence,
 The doubt must be genuine and inherent in present circumstances
 It must not be artificial, imaginary or exaggerated in nature.
 The doubt must not belong to a weak and vacillating mind, nor to a person inclined to be over-suspicious or unduly to magnify his doubt.

The doctrinal principles applied in west cannot stricto sensu be applied in Pakistan for multiple reasons which I shall discuss hereafter, a prime example is the “Falsus in uno, Falsus in omnibus” principle which is that witness who lies about (naeem)any fact must be disbelieved as to all other facts, considering the social circumstance of the subcontinent, the rule’s application has been modified by this court in the Khizar Hayat Case to the extent that the contradiction must be regarding “material facts” only. However, the application of “Falsus in uno, Falsus in omnibus” does not render the principle of “to sift the grain out of the chaff” redundant, since the judge now still has to sift the grain out of chaff, whilst he differentiates between the materiality of the facts in appraisal of evidence. This court has held numerous times, that the primary duty of the judge is to sift the grain out of the shaft.

This court has already expressed its views numerous times in regards to the evidential value of the witnesses with minor discrepancies, it has held that minor discrepancies being trivial in nature or those which do not go deep to the roots of a criminal case are immaterial discrepancies, which are natural and if such minor contradictions having no significance are given importance, then there would hardly be any conviction, so such cannot be made the sole ground for acquittal, such is based upon plethora of judgments of this court.

Crl.A.229/2021
Sher
Afzal v. The State

25/05/2025

2025 SCMR 880

S. 154---First Information Report---Scope---Prosecution's story is foundation on which entire edifice of case is built and occupies a crucial status---Such story should stand to reason and must be natural, convincing and free from any inherent improbability---It is neither safe to believe such story of prosecution which does not meet such requirements nor prosecution's case based on improbable story can sustain conviction of accused.
Muhammad Qasim vs State

25/05/2025

2025 SCMR 923
VVVVI. MUST READ JUDGEMENT.
منشیات مقدمات کا ٹرائل کرنے والے وکلا کیلئے سپریم کورٹ کا تازہ ترین رہنما فیصلہ.

منشیات مقدمات میں مال مقدمہ کی محفوظ تحویل اور ترسیل کا دستاویزی ثبوت پیش کیا جانا ضروری ہے ۔
محرر یا انچارج مالخانہ کا محض زبانی بیان متعلقہ رجسٹرز/ روڈ سرٹیفکیٹس پیش کیے بغیر قابل ادخال شہادت نہ ہے
No documentary evidence whatsoever has been brought on record by the prosecution to establish safe custody and transmission.

Neither entry of Register No. XIX was tendered in evidence nor Road Certificate as contemplated by rule 22.70, Form 22.70 and Rule 22.72, Form 10.17 of Police Rules, 1934. So, this sole contour of the case creates dent in the case of the prosecution.

The Police Rules mandate that case property be kept in the Malkhana and that the entry of the same be recorded in Register No. XIX of the said police station. It is the duty of the police and prosecution to (naeem)establish that the case property was kept in safe custody, and if it was required to be sent to any laboratory for analysis, to further establish its safe transmission and that the same was also recorded in the relevant register, including the road certificate, etc. The procedure in the Police Rules ensures that the case property, when it is produced before the court, remains in safe custody and is not hampered with until that time. A complete mechanism is provided in the Police Rules qua safe custody (naeem)and safe transmission of the case property to concerned laboratory and then to the Trial Court.

Under Article 129(g) of Qanun-e-Shahadat Order, 1984 ("the Order") it can be presumed that the prosecution did not produce Register No. XIX because the in-charge of the store room had not entered the receipt of parcels in the said register. Under Article 102 of the Order, in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of such matter except the document itself, or secondary evidence of its contents in cases in (naeem)which secondary evidence is admissible under Article 76. Therefore, oral testimony of PW-3 with regard to the safe custody of parcels was not admissible under Article 102 of the Order. Hence prosecution failed to prove safe custody of the parcels beyond shadow of doubt.

It is a case of prior information that too in the court timings but the seizing officer neither tried to obtain search warrants as required by section 20 of the Act of 1997 nor he has offered any reason/justification for his non-compliance of the command of section 20. Similarly, the prior information was never recorded in Register No. II (naeem)as contemplated by rule 22.49 of the Police Rules.

Before parting with the judgement in hand, we have painfully observed in a number of cases that the legislation had introduced the Act of 1997 to curb the menace of drug abuse, prohibit possession of narcotic substances and rehabilitate victims of drug abuse, however, the Anti-Narcotics Force and Police Authorities have failed to adhere to the provisions of the Act of 1997. The law enforcing and investigating agencies are only dealing with the peddlers and if investigation is carried out in accordance with the provisions of the Act of 1997, it would bring to justice the whole chain i.e., cultivator/manufacturer, peddler, seller and drug abuser, and would serve as deterrent factor in the society. (naeem)The manner in which narcotics cases are being investigated favours the real culprits and only drug peddlers are caught and sent to jail. Nobody dares to investigate the giants who derive profits out of such illicit drug/narcotic deals. Their assets are never investigated. We are afraid that the two ends i.e., drug dealer, cultivator, manufacturer and the drug/narcotic abusers are never held accountable. This would never have been the intention of the legislature while enacting the Act of 1997. The law enforcing agencies,particularly the Anti-Narcotics Force, has failed to adhere to the provisions of the Act of 1997 as well as the SOPs adopted by the force for investigation of criminal cases, which are very comprehensive and cover every aspect of a criminal case registered under the Act of 1997. In most of the cases, the provisions of the Act of 1997, the (naeem)rules made thereunder and the SOPs adopted by the force, to the extent of tracing assets and discovering the complete chain of culprits, have not been complied with. As a result of such incomplete investigation, the society will face the menace of narcotics/drugs abuse forever. If the State prefers to penalize citizens for possessing fruit of the forbidden tree and opts not to cut that forbidden tree and holding its beneficiaries accountable, the outcome would be absurd. Similarly, not investigating the main culprits/sources of narcotic substances in a criminal case would grant them a license to violate the Act of 1997 and cause irreparable damage to the society.

When a criminal case is registered on the allegation of possession of narcotic substances, the accused is arrested at the spot. Then the line of investigation (without prejudice to the Act of 1997 and the rules made thereunder) should be:

(1) to investigate from whom the recovered narcotic substance was received/purchased by the accused;

(ii) to whom the delivery of narcotic substance was intended;

(iii) to investigate the purpose/ultimate utilization for the recovered narcotic substance;

iv) to trace the drug abusers (for their rehabilitation);

(v) who are deriving financial benefits and the use/purpose of the delivered finance/assets;

(vi) who are the persons engaged in the business in contravention of the Act of 1997 (starting from cultivator/manufacturer to the end abuser); and

(vii) which are the assets so derived by persons engaged in dealing with narcotics.

The Act of 1997 provides for a comprehensive mechanism to deal with all matters so as to curb the menace of drug abuse, which in fact is a great threat to the society and (naeem)adversely affecting the citizens. It is mandatory for the investigating agencies to conduct investigation on true lines in accordance with the spirit of the Act of 1997.

Crl.P.L.A.1187/2021 Jeehand v. The State through Prosecutor General Balochistan