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.