Friday, December 7, 2012

Apple v. Samsung - the saga continues

By Natasha Lomas

In the latest episode of the Apple vs. Samsung legal drama that’s been playing out in the U.S. district court of Northern California, the pair met again at an appeal hearing on Thursday to argue their respective corners. Judge Lucy Koh is reviewing the jury’s $1.05 billion verdict against Samsung.
Apple is hoping for a ban on the sale of Samsung devices the jury deemed to infringe its patents when they returned their verdict back in August, while Samsung wants to reduce the damages award against it — or trigger a new trial.

Tuesday, December 4, 2012

Counterfeit coins

By Yasser Latif Hamdani

The grand old man of Jinnah’s Pakistan, the unparalleled Ardeshir Cowasjee, died last month. This great secular urban citizen of Pakistan has managed to blaze quite a trail for those who still want to see this country prosper and reclaim Jinnah’s idealism for Pakistan. Unfortunately, there continues to be no realisation of the precipice our deviation from Jinnah’s vision of a secular state has brought us to. Naysayers on both the right and the left continue to bulldose the memory of Mr Jinnah for their own petty self-interests. Cowasjee rescued the idea of Jinnah’s Pakistan from oblivion but, unfortunately, one Cowasjee is not enough to counter the tomes of misrepresentation that have passed for historical works in Pakistan.

1-10 Application update Bhagat Singh

The Tehrik-e-Hurmat-e-Rasool, a movement launched by the Jamaat-ud-Dawah, had filed the petition against a move by authorities to rename the roundabout.
Zahid Butt, a local trader who filed the petition on behalf of the organisation, claimed that RAW, India's external intelligence agency had funded the Bhagat Singh Foundation to raise the issue.
He claimed the Foundation lobbied the Dilkash Lahore Committee that recommended the renaming of the roundabout.
Senior JuD leader Maulana Amir Hamza, who heads the Tehrik-e-Hurmat-e-Rasool, has said the group will not allow places to be named after Hindus, Sikhs or Christians.
"Pakistan is a Muslim country and such ideas cannot be appreciated," he said recently.
The JuD wrote a strongly worded letter to district administration chief Noorul Amin Mengal and other government officials, warning them not to rename the roundabout after a "Hindu freedom fighter".
The Dilkash Lahore Committee had rejected all objections and asked authorities to notify the new name for the roundabout without delay.
In a related development, civil society activists have filed two applications in the Lahore High Court, asking it to make them parties to the case challenging the renaming of the roundabout.
Activists Taimur Rehman and Saeeda Diep filed the applications in the Lahore High Court yesterday through lawyer Yasser Latif Hamdani to support the renaming of the chowk after Bhagat Singh.

These applications were accepted.

Tuesday, November 27, 2012

Bhagat Singh Application 1-10 before Lahore High Court

The 1-10 application that LHC's writ branch has frivolously stopped from getting fixed tomorrow with the main case. 



In re:
                                           Tahreek-e-Hurmat-e-Rasool versus CDGL etc

Diep Saeeda, wife of ___________,  resident of __________________________________                                                                                                            ……………………APPLICANT

Respectfully Sheweth:-
  1. That titled writ petition is pending adjudication before this Honourable Court.
  2. That the Applicant is a renowned peace and social activist who is filing the present application as a concerned resident of Lahore and a citizen of Pakistan and is both a necessary and a proper party because the issue affects all residents of Lahore and also citizens of Pakistan, as matters germane to the ideology and patriotism are involved, and because the Applicant wants to place on record certain important facts regarding the issue under litigation.
  3. That the issue pertains to the renaming of Shadman Chowk as Bhagat Singh Chowk after Bhagat Singh, a renowned freedom fighter, who was hanged after a trial by the British authorities on 23 March, 1931. That a frivolous impression has been created by the Petitioner organization in the present case that the decision to rename the Shadman Chowk after the name of a great freedom fighter is somehow a conspiracy against Pakistan, whereas contrary to this claim, it is the position of the present Applicant that the renaming of Shadman Chowk after Bhagat Singh, a son of the soil, is a supreme act of patriotism.
  4. That the Applicant submits that Pakistan is a Muslim majority country where all of us respect and cherish the Holy Prophet (PBUH). It is submitted that the petitioner organization, the objective of which is to safeguard the honour of our Holy Prophet (PBUH), has no locus standi in the present matter as Bhagat Singh, the freedom fighter, was known to hold no animosity towards Islam or our Holy Prophet (PBUH) and for the implication to contrary, the Petitioner may be put to strict proof by this Honourable Court. It is submitted that Bhagat Singh was a non-communal freedom fighter who stood for the independence of the subcontinent from British imperialism for all people of the subcontinent including Muslims.  Some of the finest Islamic scholars of the time including Maulana Hasrat Mohani, Obaidullah Sindhi and Zafar Ali Khan supported Bhagat Singh’s valiant struggle against the British rule. Many of Bhagat Singh’s closest associates were Muslims including Syed Haider Raza and even Bhagat Singh’s counsel was a Muslim, Asaf Ali, not to mention that Quaid-e-Azam  Muhammad Ali Jinnah also staunchly supported Bhagat Singh. Therefore on this ground of locus standi of the Petitioner organization alone the petition deserves to be dismissed.
  5. That the Applicant wants to place on record that Quaid-e-Azam Muhammad Ali Jinnah was one of the loudest voices in support of Bhagat Singh in all of India, even appearing as a witness for the defence in the case against Bhagat Singh pertaining to the cracker bombs in the Indian Legislative Assembly.  It is further submitted that the Quaid-e-Azam on September 12 and September 14, 1929 delivered a scathing speech against the British Government and in particular the Punjab Government for its treatment of Bhagat Singh. It is submitted that the Quaid-e-Azam fully sympathized with the reasons and motivations behind Bhagat Singh’s actions and called him a patriot and man with a soul. This speech is part of the record of the collected works of Quaid-e-Azam Muhammad Ali Jinnah. It is submitted that after the Quaid’s brilliant oratory in support of Bhagat Singh, the question of renaming the chowk after Bhagat Singh being against the ideology of Pakistan does not arise.
  6. That it may be pointed out that Bhagat Singh, though born in a Sikh family, had himself transcended community and was a revolutionary patriot.  It is submitted that Bhagat Singh was a staunch critic of communal politics of all kinds and was considered an opponent of the Congress Party. It is further submitted that Bhagat Singh contributions to the cause of freedom for all people of this region, Muslim, Hindu, Sikh and others are made of sterling stuff and to appropriate him to one community or one nation of this subcontinent is unfortunate. It is submitted that Bhagat Singh was a son of the soil, a revolutionary and a freedom fighter who was from this region and who was hanged here, which is why Pakistan has a greater claim to Bhagat Singh than India.
  7. That the Applicant is also incensed at the Petitioner’s suggestion that the Shadman Chowk be renamed after Chaudhry Rehmat Ali, who in his writings roundly abused and attacked Quaid-e-Azam Muhammad Ali Jinnah, using language such as “quisling” and “traitor”. While it is true that Chaudhry Rehmat Ali came up with the name Pakistan but it is well known that Rehmat Ali distanced himself from the country that was founded at midnight of 14th and        15th of August, 1947, choosing instead to live out the rest of his life in Cambridge England and writing abusive tomes against Quaid-e-Azam and the Muslim League.
  8. That CDGL’s decision to rename the chowk after Bhagat Singh is a case of legitimate exercise of executive authority which cannot be impugned as it is an executive decision and is certainly not anti-Pakistan or anti-Islam by any stretch of imagination.
  9. That it is in interest of justice to implead the Applicant as a party to the present proceedings.
WHEREFORE it is prayed that this Honourable Court impleads the Applicant as both a necessary and proper party to the aforesaid writ petition.


                       (YASSER LATIF HAMDANI)
ADVOCATE HIGH COURT                                                    ADVOCATE HIGH COURT
PLH 44363                                                                                     PLH 42545

Sunday, November 25, 2012

Fair trial and its essentials in the age of terrorism

By Barrister Amjad Malik

This paper was read at the SCBA conference recently.

Two thousand years ago, Marcus Tullius Cicero, Roman philosopher, orator, lawyer, and politician, once stated that

"The soul, mind, and meaning of a State lie in its Laws".

That is, laws are a reflection of the state's mindset and commitment to fight issues like terrorism and target killings.

9/11 changed the world and internal security and anti-terrorism laws all over the world were no exception to this change. The most visible change was observed at the global lawmakers’ reaction against the emerging threats of terrorism and how they devised new ways and mechanisms to deter these threats. Law Enforcement Agencies (LEA’s) all around the globe got special powers to cope with the emerging internal security challenges.

Thursday, November 22, 2012

Religion, law and Bhagat Singh

When the East India Company first came to India in 1601, it claimed — through the principle of extraterritoriality — to be governed by its own laws, rejecting lex loci or the local laws of the Mughal Empire and its feudatories. Accordingly, the earliest charters empowered the East India Company to draw up reasonable laws in consonance with the principles of English common law. The charter of 1726 applied the laws of England, in entirety, directly to the East India Company’s holdings in India, namely the towns of Calcutta, Madras and Bombay, and all their residents. English law was applied in these towns not just to the English settlers and traders but all communities, castes and people residing within the boundaries of these towns, without any distinction.

Wednesday, November 21, 2012

What every Pakistani lawyer should know! How to make a living as a lawyer in Pakistan

By Yasser Latif Hamdani

I am a lawyer with six years of experience who is now in a position to make some what of a living from the legal profession. It is in this capacity that I would like to give all lawyers and law students advice.

To begin with if your dad is not a judge or a leading lawyer or extremely well connected in the power circles of Pakistan  and you have decided to pursue a legal career in Pakistan, know that you are a hero, most probably a tragic hero but a hero nonetheless. You don't need to read this article. You are beyond help. If on the other hand you are a budding law student working towards a law degree - you need to read this article to make a more informed career choice.

Wednesday, November 7, 2012

Corporate laws Pakistan YLH&Co

Companies Related Laws of Pakistan
  • Companies Ordinance, 1984
  • Central Depository Companies (Establishment and Regulation) Rules, 1996
  • Corporate and Industrial Restructuring Corporation Ordinance, 2000
  • Non Banking Finance Companies (Establishment and Regulation) Rules, 2003
  • Modaraba Companies and Modaraba Rules, 1981
  • Takeover Ordinance, 2002
Banking Laws of Pakistan
  • Banking Companies Ordinance, 1962
  • Financial Institutions (Recovery of Finances) Ordinance, 2001
  • Banker's Books Evidence Act, 1891
  • State Bank Act, 1956
Labor Laws of Pakistan
  • The Civil Servants Act 1973
  • Industrial Relations Ordinance, 2002
Foreign Exchange Laws of Pakistan
  • Foreign Exchange Regulation Manual
  • Foreign Exchange Regulation Act, 1947
Investor's Protection Laws of Pakistan
  • Board of Investment Ordinance, 2001
  • Foreign Private Investment (Promotion and Protection) Act, 1976
  • Protection of Economic Reforms Act, 1992
Privatization Laws of Pakistan
  • Privatization Commission Ordinance, 2000
Commercial Laws of Pakistan
  • Negotiable Instruments Act, 1881
  • Sale of Goods Act, 1930
  • Partnership Act, 1932
Insurance Laws of Pakistan
  • Insurance Ordinance, 2000
  Legal Services Related to Corporate Laws of Pakistan
We are providing professional legal services in a broad spectrum of the areas of law which include the following:
  • Banking Laws of Pakistan
  • Corporate / Company Laws of Pakistan
  • Venture Capital Laws of Pakistan
  • Energy Laws of Pakistan
  • Investment Funds Laws of Pakistan
  • Commercial Property Laws of Pakistan
  • Construction & Engineering Laws of Pakistan
  • Labor & Industrial Relations Laws of Pakistan
  • Intellectual Property Rules & Laws of Pakistan
  • Immigration Laws of Pakistan
Banking Laws of Pakistan

In the midst of the uncertainty created due to the impending transition of the Pakistani financial sector to an Islamic Banking system, our center of attention is Islamic Financing. We have niche expertise in advising lenders on loans, credits and financing (including syndicate and project financing) and banking regulation. Our focus is to provide thorough, efficient and solution-oriented services to a broad base of both local and international clients.

Corporate / Company Laws of Pakistan

In general, we have solid experience in advising a gamut of companies on diverse issues, in particular, on company formation, mergers, amalgamations and acquisition.

Venture Capital Laws of Pakistan
We are experienced in this area where legal creativity combined with a practical approach are essential. We have good practical expertise in advertising venture Capital Companies, Fund Managers and Technical Advisors on a variety of transactions.

Energy Laws of Pakistan

We deal with those businesses which involve oil, gas and mineral exploration as well as development projects with particular emphasis on power generation and distribution of electricity. Our work involves negotiation with other consortium member companies, consideration of relevant statutory regimes, restructuring of interests and dealing with government authorities and relevant state-owned companies and financing institutions.

Investment Funds Laws of Pakistan

We advise in investment funds, such as unit trust, investment trust, mutual funds and investment-linked insurance policies.

Commercial Property Laws of Pakistan

We deal in all aspects of acquisition, financing and disposal of freehold and leasehold land and property.

Construction & Engineering Laws of Pakistan

We advise on construction activity, in the fields of process plant, civil engineering or building including contractual framework for project financing, and relationships between employers, designers, certifiers, contractors, sub-contractors and suppliers.

Labor & Industrial Relations Laws

We have been working on a wide range of issues with respect to labor and industrial relations laws and regularly appear before the labor court and the High Courts on behalf of our clients.

Labor & Industrial Relations Laws of Pakistan

Our service includes advice on the registration, protection and assignment (sometimes as part of a corporate takeover or restructuring) of trademarks, patents, copyrights, and registered designs. We also conduct litigation concerning any disputes which may arise, including questions of ownership, validity and infringement.

Immigration Laws of Pakistan

We are also involved in advising and guiding a huge number of our clients in obtaining British visas of various categories including visit, student, HSMP, settlement, investor, business, etc.

Contact YLH&Co right now.

Tuesday, November 6, 2012

Yasser Latif Hamdani on Obama-Romney Election Race; A Pakistani Perspective

I was asked a few questions earlier by a correspondent of This being the election morning in the US, I am sharing my responses here:

 1.Why do you think the US election is important for Pakistan?

The US election is important for a very fundamental reason; a reason that is often ignored by our opinion makers in this country. There is a complete variance in how the Democrats and the Republicans approach Pakistan. Having long conflated the interest
s of the "deep state" with those of Pakistan as a country and its people, we seem to think that Republicans are better for Pakistan. However it is the Democrats who are for a more broad-based engagement with Pakistan in terms of cooperation on a strategic level underscoring long term common interests. 

Labour Law in Pakistan; Employer's abuse of Employees

The laws that were designed to protect hardworking Pakistanis are being ignored by an increasing number of employers. From unpaid overtime to deliberate employee misclassification, employment violations are committed every day across the nation. Provident Fund is often given at the wrong rate with the company pocketing your hard earned money.  

Monday, November 5, 2012

Secular Jinnah: A rebuttal to Hamid Mir, Orya Maqbool Jan and Selena Karim

By Yasser Latif Hamdani

Our Urdu press, conspiratorial, nationalist and rightwing, is full of nazriati (ideological) warriors. This article is a rebuttal of two of the most popular standard-bearers of the ghairat brigade and the so-called Nazaria-e-Pakistan (idea of Pakistan).

In one of his recent columns (because in our country it is perfectly alright for in-service civil servants to moonlight as columnists), Orya Maqbool Jan has taken to task those misguided souls — such as this writer — who believe that Mr Jinnah wanted a secular Pakistan. Apparently, ‘secular’ is some sort of a bad word and anyone using this word in connection with Quaid-e-Azam is automatically a traitor. In this particular article, Orya Maqbool Jan relied on the ‘research’ of one Selena Karim who wrote a book called Secular Jinnah: Munir’s Hoax Exposed several years ago. The entire issue revolves around a quote attributed to Jinnah dating to a pre-partition interview.

Saturday, November 3, 2012

Baloch Separatism and Pakistani Federalism

Yasser Latif Hamdani writing in "The Analyst World" Mumbai:
"The Balochistan separatists’ case rests on a fallacy. They claim that Kalat State – a princely state- was somehow placed on a different footing than other princely states of India. If this were the case, someone forgot to inform the British.  I refer to Imperial Gazetteer of India, V. 4, Page 96. Kalat State and Lasbela State are listed as two native states under the control of British political agent of the Balochistan agency, just as twenty states in Rajputana such Bundi, Karauli and Alwar.

Yasser Latif Hamdani's interview with The Analyst World of Mumbai

What is your idea of Pakistan as lay man? And as a Member of the Bar and a Law Man?
YLH : I have tried but I cannot distinguish between my idea of Pakistan as a layman and as a member of the bar. As I understand it the idea of Pakistan arose out and as a result of the following:
  • The inability of British Indians to evolve a common nationality and this itself has three factors:  a. The insecurity of Muslims – having taken to modern education and British rule much later than the Hindu Majority (a gap of 80 years almost b/w Ram Mohan Roy and Sir Syed Ahmed Khan) b. The unwillingness of the Hindu majority to meet the Muslims half way and allay their fears and c. the role of the British rulers i.e. making Hindu-Muslim settlement a sine qua non and a condition precedent for responsible government in British India.

Friday, October 12, 2012

Pakistan and the global blasphemy law

The miscreants who attacked a Hindu temple in Karachi to prove their religious bona fides have been charged under Section 295-A of the Pakistan Penal Code. It is about time. Now let us also consider the state of that forced minority the faithful love to hate, i.e. the Ahmedis. Who is going to bell the cat and charge the passport offices of the country under Section 295-A for routinely abusing this community?

The state, with deliberate and malicious intent, through words written describes the founder of the Ahmaddiya Jamaat as an ‘imposter’ and a ‘liar’. The state must realise that it cannot have it both ways. It cannot declare an entire community non-Muslim and then deny them the protections that are granted to other religions. If Ahmedis constitute a religious minority, then its founder falls squarely within the ambit and scope of Section 295-A. Ahmedis may be considered non-Muslim, but does that mean they are to be considered non-citizens as well?

A new constitution needed

The fire in Mardan’s Church had not been doused when Ghulam Ahmad Bilour, our senior federal minister and a member of the ‘secular’ and ‘non-violent’ Awami National Party (ANP), put a bounty on the head of the filmmaker and called upon al Qaeda and the Taliban to carry out the act. In return, he has been indemnified by the Taliban against all future attacks. The ANP is making a lot of noise trying to distance itself from Bilour’s statement but the truth is that you cannot fool all the people, all the time.

US Constitution and the Anti-Islam film

(Since writing this I have changed my view regarding the legal position under the US Constitution)

Originally published in Daily Times on September 17, 2012

By Yasser Latif Hamdani

The film Innocence of Muslims has to rank as the most terribly imbecilic and ridiculous attempt to malign the Holy Prophet Muhammad (PBUH) to date. It is a deeply offensive film, which has caused genuine anguish to not just religious Muslims all over the world but all reasonable people who have read a thing or two about the history of Islam.

The Holy Prophet (PBUH) was a symbol of tolerance and one of the earliest advocates of human rights in our collective history. Long before the age of enlightenment, the Holy Prophet (PBUH) spoke of religious freedom and the rights of women. His charter of Medina was an unprecedented legal document for its time, practically giving the city of Yathrib and its tribes a semblance of civil government based on the rights and obligations of its dwellers who — regardless of their faith — were declared one ummah or community. It is therefore a travesty to malign such a historic personage whose contribution to not just the Muslims but the world is unparalleled.

Saturday, September 15, 2012

Original Civil Jurisdiction: Case Law

1996 SCMR 1209 @ 1210
The Petitioner was directed to amend the Writ Petition and implead the Applicant (Ch. Sultan Mahmood) as a party in the Writ Petition. Feeling aggrieved thereby, the Petitioner filed Intra Court Appeal which was dismissed vide impugned order on the short ground of non maintainability. The High Court was of the view that Intra Court Appeal was not competent against an interim order passed by the learned single judge during the hearing of a constitution Petition.
We have heard Mr. Bashir A. Muhahid, Advocate, learned counsel for the Petitioner. We find that in view of the provisions of section 3(1) of the Law Reforms Ordinance, 1972 the division bench of the High Court was fully justified in holding the Intra Court Appeal of the Petitioner as not maintainable. Relevant provision i.e. section 3(1) reads as follows:-\
“An appeal shall lie to a bench of two or more judges of a High Court from a decree passed or final order made by a single judge of that court in the exercise of its original civil jurisdiction.”

Judgment under S.369 of the Criminal Procedure Code

A special court constituted under the Control of Narcotic Substances Act, 1997 has passed an ex parte proceedings order and then a freezing/confirmation order. We have applied for recall of these orders and have raised a contention that recall of these orders is not barred by Section 369 of the Code of Criminal Procedure 1898.
(i)                 Sections 367, 369 and 561-A of the Code of Criminal Procedure 1898.
Briefly Section 367 defines what constitutes a judgment.  Section 369 contains the bar on a criminal court to alter its judgment. Section 561 A provides for inherent powers of the court.
(ii)               Sections 37 and 47 of the Control of Narcotic Substances Act, 1997.
Section 37 provides for the special court under this Act to freeze assets of the accused or his relatives when there are reasonable grounds for believing that the accused is guilty of an offence under this law. Section 47 expressly applies the Code of Criminal Procedure 1898 to cases tried under this Act.
Case Law
There is extensive case law on the issue of what constitutes a judgment.  The judgments quoted in this section will provide the basis for why the aforesaid orders passed by the learned special court do not constitute a final judgment under the Criminal Procedure Code.
Supreme Court of Pakistan
(i)                  Muhammad Ramzan v. Allah Ditta; 1982 SCMR 215

(Order based on default of appearance and not merits cannot be controlled by Section 369)
In this case the respondents were tried by the Sessions Judge, Bahawalpur and acquitted. The petitioner then filed a revision petition but on the date of hearing the revision petition was dismissed for default.  The petitioner then filed a revision petition in the high court which was dismissed by the High Court because the order sheet of the earlier revision petition showed that the case was called several times but never prosecuted. The petitioner then moved the Supreme Court arguing that there was no provision in the Code of Criminal Procedure allowing dismissal of a Criminal Revision for non-prosecution and that his second petition should have been entertained as an application for restoration of his first petition. The honourable Supreme Court held that “order dismissing a petition or an application in default of the appearance of the party or its counsel without touching upon its merits is not covered by the bar created by Section 369 of the CrPC.” (Page 221 (C))
However the Supreme Court dismissed the appeal  because the Petitioner had failed to give any reasons for default of appearance in the first petition.
(ii)                Gulzar Hassan Shah v. Ghulam Murtaza; PLD 1970 SC 335
(369 not applicable when order made in default of appearance)
This case pertains to a criminal miscellaneous in the High Court of West Pakistan challenging an order of bail by the Additional Sessions Judge Multan. The High Court cancelled the bail in absence of the respondents. The respondents filed an application asking for the cancellation order to be set aside. The order was recalled. This order was challenged in the Supreme Court asking whether the High Court had inherent jurisdiction to reverse its order. The question that was considered was whether Section 369 of the CrPC controlled Section 498 of the CRPC and the Supreme Court held that “section 369 of the CrPC does not control section 498 and in suitable cases section 561 A of the Criminal Procedure Code can be invoked. In the first place, an order under section 498, CrPC, is not a judgment within the meaning of Section 369…” (Page 339 (B)).  The Supreme Court further held that “Even otherwise the order dated the 8th August 1969 suffers from the principles of natural justice. It was passed in the absence of respondents for no fault of theirs. It was, therefore, a nullity in the eye of law and the question involved should have been re-examined and decided in the presence of the parties.” (Pages 341-342 (D))
High Courts
(iii)               Muhammad Younus Lakhani v. The State; PLD 2006 Kar 198

(What constitutes a judicial order/judgment in terms of 367 and by implication 369)

The complainant/appellant moved the Supreme Court against the acquittal of the accused. It was contended on his behalf that the order of acquittal was not in the nature of a judicial order. The Supreme Court held that “it is imperative that every order passed under the provisions of any statute in judicial or quasi judicial capacity or even in executive capacity should contain reasons. There should be objectivity in the reasons and it should not be merely subjective in nature. Any order which is merely subjective cannot be termed an an order supported by reasons. The expression reason has not been defined in any law but in common parlance denotes an action taken or order passed by the person, officer or authority which is reasonable, conforming the requirement of reasonability. The reasonability can be gauged by examining findings in order and if there is no discussion or any finding and the order has been passed by mere reproduction of the words used in the statute it would not be a proper order supported by reasons. Such an order would be a non-judicial, non-speaking and unreasoned one.” (Pages 204-205)

(iv)              Amir Bux v. The State; 1995 MLD 610

(369 subject to 561-A)

While discussing 561-A of the CrPC, the Karachi High Court held that “ It is also worth mentioning that section 369 in the code,  which precludes the alteration or review of a judgment once it is signed, is itself subject to section 561-A aforesaid and no procedural constraints can come in the way of advancement of ends of justice”(Pages 611-612) (Relying on Bashir v. The State, PLD 1991 SC 1145)

(v)                Nasrullah v. the State; PLD 1987 Lah 31

(Judgment within the meaning of 369)

In this case the Lahore High Court held that “The word ‘judgment’ means a judgment which is recorded after hearing the parties and which tend to dispose of the cause finally on merits. In Sher Khan v. The State it was held that an order rejecting the appeal without going into merits of the case was not a judgment within the meaning of section 367, CrPC, and therefore was not a bar against rehearing the same under section 369, CrPC.” (Page 34)
(vi)              Sarkar v. Mohammad Malik; PLD 1974 Note 110 (on Page 164 of 1974 volume 4)

(Interim orders are not barred by 369)
Contention was that a trial court once having permitted the public prosecutor to cross examine prosecution witness could not review or reverse his own order. The court held that being neither a judgment nor a final order in terms of S. 369, CrPC, trial court was competent to review such order. (Page 164)

To address the question, it is patently obvious from the provisions of Control of Narcotic Substances Act, 1997 that a freezing order is by no means a final order or a judgment but is in the nature of an interlocutory order. The clearest indication of this is the reference to reasonable grounds in Section 37 of the aforesaid Act. It is therefore clear freezing order freezes assets pending final adjudication. This view is further strengthened by the use of the word forfeiture in Section 39 of the Act which is subject to a conviction. Therefore a freezing order, and confirmation thereof, are merely interlocutory orders not covered by Section 369 of the Cr.PC.  Furthermore, the order does not constitute a judicial order or judgment as it is not reasoned and arrived at after the hearing of both parties.  In all such circumstances the bar contained in Section 369 of the Cr.PC does not apply.

Provided there are good reasons for default in appearance, it seems to me that there is a good case for recall of both ex parte proceeding order and the freezing/confirmation order passed by the learned special court.

The law on intra-court appeal from interlocutory order

Law Reforms Ordinance 1972
3. Appeal to High Courts in certain cases (1) An appeal shall lie to a Bench of two or more Judges of a High Court from  a decree passed or final order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.
(2) An appeal shall also lie to a Bench of two or more Judges of a High Court from an order made by a Single of that Court under clause (1) of Article 199 of the Constitution of Islamic Republic of Pakistan not being an order made under sub-paragraph (i) of paragraph (b) of that clause:
Provided that the appeal referred to in this subsection shall notn be available or competent if the application brought before the High Court under Article 199 arises out of any proceedings in which the law applicable for at least one revision or one review to any Court, Tribunal or authority against the original order.
(3) No appeal shall lie under sub-section(1) or subsection(2) from an interlocutory order or an order which does not dispose of the entire case before the Court.
(4) Nothing contained in this Ordinance, shall be construed as affecting:-
(a) any appeal under the provisions of the Letters Patent applicable to a High Court or under section 102 of the Code of Civil Procedure (v of 1908) which was pending immediately before the commencement of this Ordinance; or
(b) any appeal or petition for leave to appeal from a decree, judgment or order of a Single Judge of a High Court made to the Supreme Court before the commencement of the Law Reforms (Amendment) Ordinance, 1972.

Ordinance X of 1980 Code of Civil Procedure (Amendment ) Ordinance, 1980
15. Appeal to High Court in certain cases. Notwithstanding anything contained in section 3 of the Law Reforms Ordinance, 1972 (XII of 1972) an appeal shall lie to a Bench of two or more Judges of a High Court from an interlocutory order made by a Single Judge of that Court in the exercise of its original civil jurisdiction.

A discussion on whether the anti-Muslim film is protected under first amendment rights

  • Yasser Latif Hamdani Holding a political or religious opinion or criticising a religion etc should be protected but this film is not protected in my view... to quote Chaplinsky v. New Hampshire 315 U.S. 568 where the US supreme court ruled : "There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or "fighting" words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." This in my view fits the test.

Monday, September 10, 2012

Cartooning the Constitution: Look before you leak

By Farzana Versey
When I say that you cannot be proud of something you are born in or with unless you contribute to it, including religion and the nation, I am asked, “So you don’t get goosebumps during the national anthem?” This is not the response of only the rightwing, but also centrists, and libertarians. My goosebumps for anything are a personal matter. Flashing fidelity is an insecure reaction, in personal relationships and in patriotism. 

When a political cartoonist from the anti-corruption movement shows the Indian Parliament as a toilet bowl, should not the response be the same? If he depicts the symbols of the Indian Constitution in a manner that insults the symbols rather than pulling up those who abuse it, then why is he held up as an example of freedom of expression? 

Aseem Trivedi is arrested. He refuses a lawyer. He has nothing to say in his defence.Reportedly, “he prefers to be jailed than live in a farcical freedom where activists are targeted and freedom of speech is denied”.

The farcical freedom he talks about has occupied grounds and done little else. IAC cannot take credit for any expose of scams. His stance is no different from the cries of “jail bharo”. This will help the movement come back into the limelight. 

We do know that sedition charges don’t stick. But those who are charged with it get sympathy and a free ticket to ‘victim’ heaven. Has anything happened to Arundhati Roy? Isn’t Dr. Binayak Sen happily sitting in the Planning Commission, appointed by the very government that had sentenced him? 

Gender Stratification, Homosexuality and the American constitution

By Yasser Latif Hamdani
The ethos of the American society has been informed by two main influences:  One the Puritan Christian values inherited from European immigrants primarily from England but also other places and two the harsh conditions the immigrants faced in the wilderness of a new land which necessitated a protected environment for what was deemed as the weaker sex. Christian society in its essence was a patriarchal society and the same traditional patriarchy was carried across the Atlantic by the early colonists. The primordial roles of the man as the hunter/gatherer (and by extrapolation merchant, soldier, ruler) and woman as the homemaker and mother of the man’s children have been ossified to an extent that even in this advanced age, we are unable to break through it entirely.[1]

Legal Opinion: Option to buy land agreement in Indian law

By Yasser Latif Hamdani
This is a legal opinion I wrote. Be warned that an Indian lawyer did not agree with the contents of this opinion. Nonetheless I share it for what it is worth.

The Legal status of an option to buy agreement:
An option to buy land agreement in India will be covered under Section 54 of the Transfer of Property Act, 1882.  The proviso of Section 54 of the Transfer of Property Act, 1882, states:
“Contract of Sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on the terms settled between the parties.
It does not, of itself create any interest in or charge on such property”
Therefore it is important to clarify that an option to buy land agreement is in the nature of an agreement to sell or a contract of sale. No interest or right is created by such an agreement in view of the aforesaid. However limited rights under Section 53-A of the aforesaid which pertain to part performance. Section 53-A can come into play only after a certain condition has been fulfilled and that would lend credence to legal rights under this section.

The logical result of Blasphemy Law

By Yasser Latif Hamdani

(Published in Daily Times Sept 10, 2012)

The events of the last week may have surprised you. Seeing mullahs falling over one another to declare that Rimsha Masih, the 14-year-old Pakistani Christian girl, was innocent of the charge of blasphemy was quite a spectacle in a country no stranger to spectacles. It is not out of a sudden love for justice or humanity that the mullahs have adopted this stance. Khalid Jadoon Chishti’s attempt to drive out the Christians from their locality is just one case where the real motivations have been exposed entirely due to one conscientious muezzin who had the courage and humanity to speak out against this outrage.

A year and a half after the tragic assassination of Salmaan Taseer, it has become obvious to good Muslims of this country that in its present form clause 295-C militates not just against fundamental human rights but also against Islam. They now realise that the worst kind of blasphemy is misusing the name of the Holy Prophet (PBUH) to persecute a minority community when all Muslims agree that he (PBUH) spoke of religious freedom long before it came to be universally accepted as a key principle of liberty.

Saturday, September 1, 2012

18th Amendment and the Civil Rights of Pakistanis

 By Yasser Latif Hamdani
The Constitution (18th Amendment) Act, 2010 is the boldest attempt yet at restoring representative parliamentary democracy in Pakistan since General Zia ul Haq’s military regime altered the constitution fundamentally to tilt the balance of power in the favour of the President of the republic. The Zia regime also tampered with the constitution to further its own agenda of Islamisation which in turn meant substantial marginalization of minorities and women from the mainstream of the society. 18th Amendment has sought to rectify it by introducing key changes to the fundamental rights chapter. 

Do Ahmadis have a right to live in Pakistan?

n 25 August, 2012 former prime minister Yousaf Raza Gilani attended the Khatm-e-Nabuwat Conference in Golra in Islamabad. Talking to reporters after the conference, the former prime minister said the mission of Pir Mehar Ali Shah, the patron saint of Golra, came to its fruition in 1974. It was a reference to the excommunication of Ahmadis by the Parliament. The community was declared nonMuslim through a constitutional amendment by the Pakistan People's Party government in 1974. The PPP views the amendment as a feather in its cap and many of its first rank leaders are known to proudly state that their party did Islam a favour.


An update -  Japanese Courts have ruled against Apple on infringement.

"The reports at hand note that the Tokyo District Court has made it clear in its verdict reflects Apple’s accusation that Samsung infringed upon a patent of theirs that covers music and video data with a server. The verdict appears at the moment to say that Samsung has not been found guilty of said infringement and that they’ll owe no damages to Apple at the present time. This verdict also appears to be a partial reading while other matters are being released at a later time."

We shall keep you updated on the latest development.

Thursday, August 30, 2012

A footnote in the Indian Supreme Court's judgment on Ajmal Kasab

From Indian Kanoon

“[45] It is reported that it was at the Taj Mahal Hotel ballroom that, on February 20, 1918, at her eighteenth birthday party, Ruttie had accepted Mr Jinnah’s hand in marriage while the band was playing the Chopin tune, So Deep is the Night. It is also reported that both Mr. Jinnah, the creator of Pakistan, and Mrs. Sarojini Naidu, the President of the Indian National Congress, often held court at Taj Mahal Hotel.
Mr. Jinnah also had an intimate connection with Mazgaon, where the bomb planted by two terrorists in a taxi exploded, killing three (3) and wounding nineteen (19) people. It is reported that Mr. Jinnah devoted Thursday afternoons to visiting the grave of his wife Ruttie at the Khoja Shiite Isna’ashri Cemetry, situated at Mazgaon, Mumbai.
One wonders what Quaid-e-Azam would have thought of the terrorist attack on his favourite city in the subcontinent and especially on Taj Mahal Hotel, with which he had a personal relationship of a very intimate kind.”

Apple v. Samsung

By Yasser Latif Hamdani

So the die is now cast against Samsung and the reason is that Samsung is an Asian and not an American company. At least that is the clearest message one gets from the recently concluded Apple v. Samsung suit in California.

I am an I-phone user and I consider Android Phones at best a cheap immitation but I fear that the judgment awarding Apple US $ 1 billion in damages is not only too excessive but it amounts to a judicial intervention in competition. How can rectangles with rounded corners be a patent upheld by a court of law? Perhaps the courts should also consider awarding billions of dollars in damages to XEROX whose personal computer design Apple stole many moons ago.