O 1 R 10
The Court may at any stage of the proceedings either upon or without the application of either party and on such terms as may appear to the Court to be just, order that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely, to adjudicate upon and settle all the questions involved in the suit, be added.
Only necessary or proper parties can be added. Not any other parties.
A 1951 M 665, A 1934 N 228
Persons indirectly or remotely interested are not necessary or proper parties.
1996 SCMR 781, 1996 CLC 678, P 1972 L 169, A 1941 FC 16, A 1943 A 289, 20 IC 658, 1996 CLC 456, P 1996 K 467, A 1918 PC 49
Trial should not be embarrassed by simultaneous investigation of unconnected controversies.
11 SWR 23 FB
Persons who have no interest should not be added.
PLJ 1975 SC 345, 2004 CLC 1567, 1994 MLD 1489, A 1937 M 200, A 1929 B 353,
Persons cannot be added as parties to add a new cause of action which does not concern the plaintiff at all.
PLJ 1985 SC 461, 1999 CLC 2077, 1992 CLC 700, 1984 CLC 286, 1979 CLC 891,
A person who has a champertous interest in litigation should not be added.
2004 MLD 1395, 1996 CLC 678, 1996 SCMR 781
Parties cannot be added after decree is drawn up.
A 1924 M 648
Mere fact that a person may, by some chance, become interested in claiming property adversely to plaintiffs is no ground for his being so impleaded because that would necessitate importation of facts not found in suit.
NLR 1992 Civil 250
Not made party if application to prolong litigation.
1992 CLC 1432
Not made party if application suffering from inordinate delay.
NLR 1992 AC 204, 1989 SCMR 1589, PLD 1980 Lah 804
Where rights of parties could be effectively determined in suit without impleading any other party and claim of parties inter se arose out of contractual obligation to which party sought to be impleaded was not a party, impleading of same would be neither necessary nor proper.
1988 CLC 2014
Saturday, November 21, 2009
Case Law, Territorial jurisdiction of Civil Courts
SECTION 20 OF C.P.C
TERRITORIAL JURISDICTION OF CIVIL COURTS
v AIR 1926 PC 88
v 1970 PLD SC 273
Ordinary residence connotes occasionally or temporary residence
v 1981 SCMR 494
Suit by or against corporation--corporation can be said to be carrying on business at head office, or at place where its branch exists in respect of a cause of action arising wholly or in part at place where its branch office situated.
v 1986 CLC 2173
Suit could be instituted at a place where DEFENDANT or each of them, when there are more defendant in suit at time of filing such suit actually or voluntarily resides or carries on business or permanently works for gain.
v 1987 SCMR 393
To or more courts having jurisdiction to trial a suit---agreement between parties, that any dispute arising between them shall be tried only by one of such courts, held, could not be consider contrary to public policy as it would neither contravene provisions laid down in Sec. 28, Contract Act, 1872, nor violate in any manner provisions of Sec. 9 or Sec. 20 of C.P.C.--- appeal allowed and the order of Administrative Civil Judge as well judgment and order of High Court, whereby objection of defendant to the jurisdiction of the court other then the agreed one was overruled was set aside.
v 1992 SCMR 1174
Suit for recovery---Plaint showed that defendant resided at Karachi and their principle office was also located at Karachi---original contract between the parties which has given rise to the filing of the suit for recovery was negotiated an entered into at Karachi---primarily the Courts at Karachi has jurisdiction to trial the suit according to Sec 20(1)(c).
v 1995 CLC 259
v 1997 CLC 1722
v 1998 SCMR 1618
Award arising out of an International Arbitration Agreement---all action can be maintained when a cause of action, wholly or in part arises with in the jurisdiction of a Municipal Courts concerned---not rise to urged that a municipal court can retain an action against a foreigner only when he either permanently or temporarily resides within the limits of a municipal courts or he submits to its jurisdiction.
v 2000 CLC 1405
---S. 7---Civil Procedure Code(V of 1908), S.20 & O.XXXVII, Rr. 2 & 3---Proceedings for recovery of loan initiated by Bank against the borrower--- Territorial jurisdiction of Banking Court---No specific jurisdictional clause was incorporated in the loan agreement between the parties---Mere incorporated of defendant-company in U.K. or their necessarily exclude the jurisdiction of the Banking Court in Pakistan in the recovery proceedings initiated by the Bank---Subsequent conduct of borrowers, the change of their ordinary residence, the law applicable to the parties and the forum which would be just and proper would also be decisive factors while deciding the question of territorial jurisdiction---Borrowers having given their address in Pakistan in the affidavit, in the identity card and having admitted in the correspondence with the Bank that they had shifted to Pakistan, they were estopped to raise the question of territorial jurisdiction by asserting that the resided in the U.K., therefore, a Court in U.K, would be more convenient forum was repelled being not tenable—Borrowers being citizens and residents of Pakistan were subject to ordinary law of he land and S.20, C.P.C. was relatable to the territorial jurisdiction where a suit was to be filed.
v PLD 2002 K 420
(P.425) A Where two courts
have may jurisdiction In respect
of same claim then it is the prerogative
of the plaintiff that weighs more in
determining the place of suing.
v 2002 CLC 527
v 2004 MLD 662
---S.28---Civil Procedure Code (V of 1908), S.20 & O.CII, R.10---Territorial Jurisdiction of Court-Suit between principal and agent instituted at place “K”---Agency agreement between parties through such agreement had agreed that in case of any dispute, only Court at place “R” would have jurisdiction to deal with same---Parties were required to abide by terms of their agreement and submit their dispute to Courts at Place “R” ---Plaint was returned for its presentation before the proper court. [p.666] A & B.
v PLJ 1992 SC 289
---S. 20—Dispute between parties-Adjudicaiton of-whether controversy could only be adjudicated upon by Karachi Courts and Courts at Rawalpindi had no jurisdiction—Question of-According to plaint, defendant No. 1 reside at Karachi and their principal office is at Karachi—Original contract as negotiated and entered into at Karachi—Held: Courts at Karachi ubdoubedly have jurisdiction to try suit according to Section 20, sub-clauses (a) and (c) of C.P.C.
v 2003 CLC 1744
v 199CLJ 229
v PLJ 1975 Lahore 56
v 2002 CLD 527
v 2004 YLR 2503
---Territorial jurisdiction---Friction of cause of action will be part of cause of action and will confer jurisdiction on a Court within the territorial jurisdiction of which same occurs [p. 2510] C
---Court may exercise its discretion to avoid injustice or inequity. [p. 2511] I
---Determination of ----Question whether the Court had jurisdiction over he civil matter, was to be decided in accordance with the general provisions in the C.P.C. [p. 2511] N
v PLJ 1986 Lahore 169
v PLJ 1982 Quetta 76
v NLR 1999 Lahore 84
v PLJ 1978 Lahore 233
v 2003 CLJ 268
v AIR 1941 Calcuta 64
v PLD 1952 Dacca 155
TERRITORIAL JURISDICTION OF CIVIL COURTS
v AIR 1926 PC 88
v 1970 PLD SC 273
Ordinary residence connotes occasionally or temporary residence
v 1981 SCMR 494
Suit by or against corporation--corporation can be said to be carrying on business at head office, or at place where its branch exists in respect of a cause of action arising wholly or in part at place where its branch office situated.
v 1986 CLC 2173
Suit could be instituted at a place where DEFENDANT or each of them, when there are more defendant in suit at time of filing such suit actually or voluntarily resides or carries on business or permanently works for gain.
v 1987 SCMR 393
To or more courts having jurisdiction to trial a suit---agreement between parties, that any dispute arising between them shall be tried only by one of such courts, held, could not be consider contrary to public policy as it would neither contravene provisions laid down in Sec. 28, Contract Act, 1872, nor violate in any manner provisions of Sec. 9 or Sec. 20 of C.P.C.--- appeal allowed and the order of Administrative Civil Judge as well judgment and order of High Court, whereby objection of defendant to the jurisdiction of the court other then the agreed one was overruled was set aside.
v 1992 SCMR 1174
Suit for recovery---Plaint showed that defendant resided at Karachi and their principle office was also located at Karachi---original contract between the parties which has given rise to the filing of the suit for recovery was negotiated an entered into at Karachi---primarily the Courts at Karachi has jurisdiction to trial the suit according to Sec 20(1)(c).
v 1995 CLC 259
v 1997 CLC 1722
v 1998 SCMR 1618
Award arising out of an International Arbitration Agreement---all action can be maintained when a cause of action, wholly or in part arises with in the jurisdiction of a Municipal Courts concerned---not rise to urged that a municipal court can retain an action against a foreigner only when he either permanently or temporarily resides within the limits of a municipal courts or he submits to its jurisdiction.
v 2000 CLC 1405
---S. 7---Civil Procedure Code(V of 1908), S.20 & O.XXXVII, Rr. 2 & 3---Proceedings for recovery of loan initiated by Bank against the borrower--- Territorial jurisdiction of Banking Court---No specific jurisdictional clause was incorporated in the loan agreement between the parties---Mere incorporated of defendant-company in U.K. or their necessarily exclude the jurisdiction of the Banking Court in Pakistan in the recovery proceedings initiated by the Bank---Subsequent conduct of borrowers, the change of their ordinary residence, the law applicable to the parties and the forum which would be just and proper would also be decisive factors while deciding the question of territorial jurisdiction---Borrowers having given their address in Pakistan in the affidavit, in the identity card and having admitted in the correspondence with the Bank that they had shifted to Pakistan, they were estopped to raise the question of territorial jurisdiction by asserting that the resided in the U.K., therefore, a Court in U.K, would be more convenient forum was repelled being not tenable—Borrowers being citizens and residents of Pakistan were subject to ordinary law of he land and S.20, C.P.C. was relatable to the territorial jurisdiction where a suit was to be filed.
v PLD 2002 K 420
(P.425) A Where two courts
have may jurisdiction In respect
of same claim then it is the prerogative
of the plaintiff that weighs more in
determining the place of suing.
v 2002 CLC 527
v 2004 MLD 662
---S.28---Civil Procedure Code (V of 1908), S.20 & O.CII, R.10---Territorial Jurisdiction of Court-Suit between principal and agent instituted at place “K”---Agency agreement between parties through such agreement had agreed that in case of any dispute, only Court at place “R” would have jurisdiction to deal with same---Parties were required to abide by terms of their agreement and submit their dispute to Courts at Place “R” ---Plaint was returned for its presentation before the proper court. [p.666] A & B.
v PLJ 1992 SC 289
---S. 20—Dispute between parties-Adjudicaiton of-whether controversy could only be adjudicated upon by Karachi Courts and Courts at Rawalpindi had no jurisdiction—Question of-According to plaint, defendant No. 1 reside at Karachi and their principal office is at Karachi—Original contract as negotiated and entered into at Karachi—Held: Courts at Karachi ubdoubedly have jurisdiction to try suit according to Section 20, sub-clauses (a) and (c) of C.P.C.
v 2003 CLC 1744
v 199CLJ 229
v PLJ 1975 Lahore 56
v 2002 CLD 527
v 2004 YLR 2503
---Territorial jurisdiction---Friction of cause of action will be part of cause of action and will confer jurisdiction on a Court within the territorial jurisdiction of which same occurs [p. 2510] C
---Court may exercise its discretion to avoid injustice or inequity. [p. 2511] I
---Determination of ----Question whether the Court had jurisdiction over he civil matter, was to be decided in accordance with the general provisions in the C.P.C. [p. 2511] N
v PLJ 1986 Lahore 169
v PLJ 1982 Quetta 76
v NLR 1999 Lahore 84
v PLJ 1978 Lahore 233
v 2003 CLJ 268
v AIR 1941 Calcuta 64
v PLD 1952 Dacca 155
Case Law, Arbitration
ARBITRATION:
1971 LAH 38
DB Arbitrator not bound to give reason for every issue or point or for the judgment.
1971 LAH 522
Proceeding on basis of unstamped as deficiently stamped document, illegal and without jurisdiction.
-- S. 41(b) Temp. Injunction can be issued by Civil Court even if no proceeding pending before Civil Court and reference to arbitration also without reference to court.
1980 SC 62
Arbitration - Award made rule of court but not registered though registration necessary - Not nullity and can not be avoided by party to the decree.
1982 PSC 1135
Court has no power to
(Bremer Vulcan) dismiss proceeding before Arbitrator.
PLD 1982 Kar 778 Court can stay Arb. proceeding only if....
1971 LAH 38
DB Arbitrator not bound to give reason for every issue or point or for the judgment.
1971 LAH 522
Proceeding on basis of unstamped as deficiently stamped document, illegal and without jurisdiction.
-- S. 41(b) Temp. Injunction can be issued by Civil Court even if no proceeding pending before Civil Court and reference to arbitration also without reference to court.
1980 SC 62
Arbitration - Award made rule of court but not registered though registration necessary - Not nullity and can not be avoided by party to the decree.
1982 PSC 1135
Court has no power to
(Bremer Vulcan) dismiss proceeding before Arbitrator.
PLD 1982 Kar 778 Court can stay Arb. proceeding only if....
Case Law Time is essential on Contract
CASE LAW
ON
(Time is The Essence of the Contract)
1. 2008 CLD 38
ON
(Time is The Essence of the Contract)
1. 2008 CLD 38
Cancellation of Bail
Cancellation of Bail by Supreme Court
i) Grant of Bail
PLD 1996 SC 241 (b)
ii) Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.
PLD 1995 SC 34 (e)
iii) The words used in Sec. 497(1) & Sec. 497(5) Cr. P.C. are different in as much as the word “shell” in Sec. 497(1) Cr. P.C & word ‘may’ in Sec. 497(5) Cr. P.C. The discretion left in the Court u/s. 497(5) Cr. P.C was pari materia with the principles which apply to the setting aside of the orders of acquittal.
1992 SCMR 1286
iv) The orders passed by High Court in the present case are not based on fanciful & arbitrary grounds.
1976 SCMR 286
1978 SCMR 346
I. GRANT OF BAIL: DISCRETION OF HIGH COURT
Supreme Court would not interfere in the discretion of High Court in Bail matter unless the order involves some violation of law.
PLD 1997 SC 545 (h)
1987 SCMR 432
2002 P Cr.L.J 1106: SC (A J & K)
Order of Bail passed in judicial discretion would not be interfered unless arbitrary or departed from settled principles of law.
PLD 1987 Sh. C (A J & K) 63
1987 SCMR 879
Proper exercise of discretion by High Court. Supreme Court would not interfere.
1986 SCMR 475/1978
1990 SCMR 270
NLR 1989 SCJ 330
1979 SCMR 523
1981 SCMR 860
1994 SCMR 1064
1996 SCMR 1685
Grant or refusal of bail by HC, purely discretionary; can not lightly be interfered with.
2000 SCMR 1438
PLJ 1979 SC 202
1979 SCMR 479/19
1980 SCMR 13
SC will not interfere in the case of bail unless circumstances are of exceptional character and refusal might entail risk of grave illegality or abuse of process or gross injustice
1979 SCMR 146
Supreme Court would not interfere with exercise of discretion unless:
i) Exercised not judicially
ii) Perverse
iii) Miscarriage of Justice would result
NLR 1980 SCJ 25
1981 SCMR 504
1981 SCMR 202/394/397/504
PLD 1986 SC (A J & K) 105/31
1986 SCMR 169
PLD 1988 SC (A J & K) 148
1979 SCMR 434
2001 P Cr. L.J 1059: SC (A J & K)
PLD 1963 SC 46
PLJ 1997 SC (A J & K) 37
Administration of justice: No exception can be taken to the exercise of discretion of High Court if no violation of Fundamental nature has taken place.
1979 SCMR 146
1980 SCMR 369
PLD 1981 SC (A K & K) 10
1981 SCMR 1216/397
1982 SCMR 894
PLD 1986 SC (A J & K) 105
1987 SCMR 432
1989 SCMR 1821
1995 SCMR 1249
2003 YLR 1309 : SC (A J & K)
II. Supreme Court would not interfere, where case is of further inquiry
1994 SCMR 454
2000 SCMR 161
2002 SCMR 1415
2003 P Cr. L.J 20: SC (A J & K)
III. No fundamental error of law or procedure was committed in granting the bail.
1979 SCMR 351/362/377
1981 SCMR 894
PLD 1988 SC (A J & K) 181
IV. Issue of Cancellation of Bail must come to an end at High Court level:
1989 SCMR 1388
V. Strong And Exceptional Grounds With Proof
Once bail is granted, the prosecution should make string case for cancellation by not making allegation alone but giving substantial proof.
1994 SCMR 1283
Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.
PLD 1995 SC 34 (e)
PLD 1996 SC 241
1996 SCMR 984
1997 SCMR 915
PLJ 1997 SC (A J & K) 349
Bail not cancelled on the statement of co-accused, where the prosecution does not show any piece of evidence directly or indirectly against the accused.
2001 SCMR 14
Bail could not be recalled in absence of cogent reason.
1979 SCMR 65
VI. MISUSE OF BAIL
Before cancellation of Bail, there should be a clear proof that privilege of bail was misused or abuse of freedom was made.
PLD 1994 SC 88
1993 SCMR 714
2004 SCMR 243
1981 SCMR 565
1985 SCMR 1528
VII. MALAFIDE
Bail will not be cancelled if the application for cancellation is
i. Mala Fide
ii. Frivolous
iii. Without any basis
1994 SCMR 1283
VIII. CIVIL SUIT IS PENDING BETWEEN THE PARTIES.
1982 SCMR 626
2001 SCMR 1412
IX. INSTANCES WHERE SC REFUSED TO CANCELL BAIL GRANTED BY
HC
Leave to appeal was refused, when bail was granted to Lady by HC in exercise of its discretion.
1999 SCMR 2622
Order granting bail does not suffer from any legal or factually infirmity.
1979 SCMR 91/438
1988 SCMR 1129
PLD 1988 SC (A J & K) 181/48
1986 SCMR 1843
Cancellation declined on the grounds of i) Old age, ii) Disease and ii) No misuse of bail privilege.
1988 SCMR 28
PLD 1983 SC 83
1987 SCMR 1522
SC declined to interfere where bail was granted on medical grounds by HC.
PLD 1966 SC 708
1981 SCMR 686
SC refused to set aside bail where without full examination of evidence is required to ascertain whether accused was falsely implicated.
1986 SCMR 1387
No overt act is attributed to accused.
1978 SCMR 32
No overt act by accused, they could not be saddled with vicarious liability
2001 P Cr.L.J 1973: SC (A J & K)
Allegations were not substantiated in investigation.
2000 SCMR 1074
Grounds for cancellation of bail already taken into account and rejected. Leave to appeal was refused.
1979 SCMR 479
1982 SCMR 205
1987 SCMR 1879
Accused if powerful, bad relations of complainant and accused or accused not surrendering to police are not consideration for setting the bail aside.
1979 SCMR 119
Cancellation of bail refused where the name of accused appear in column 2 of the Challan.
1982 SCMR 440
1984 SCMR 1378
Accused not named in F.I.R and no Identification Parade was held.
2002 SCMR 1304
After careful examination of facts HC granted bail since opposite party was already allowed bail in the counter case
2002 SCMR 201
Cancellation of bail sought on ground that accused was threatening witnesses with dire consequences- no ground for cancellation
NLR 1980 SCJ 126
SC finds no reason for canceling the bail, where the case was fixed for arguments or trial is to be commenced soon.
1989 SCMR 520
1988 SCMR 1129
PLD 1989 SC 585
Where the defense version was still to be investigated.
1989 SCMR 2028
i) Grant of Bail
PLD 1996 SC 241 (b)
ii) Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.
PLD 1995 SC 34 (e)
iii) The words used in Sec. 497(1) & Sec. 497(5) Cr. P.C. are different in as much as the word “shell” in Sec. 497(1) Cr. P.C & word ‘may’ in Sec. 497(5) Cr. P.C. The discretion left in the Court u/s. 497(5) Cr. P.C was pari materia with the principles which apply to the setting aside of the orders of acquittal.
1992 SCMR 1286
iv) The orders passed by High Court in the present case are not based on fanciful & arbitrary grounds.
1976 SCMR 286
1978 SCMR 346
I. GRANT OF BAIL: DISCRETION OF HIGH COURT
Supreme Court would not interfere in the discretion of High Court in Bail matter unless the order involves some violation of law.
PLD 1997 SC 545 (h)
1987 SCMR 432
2002 P Cr.L.J 1106: SC (A J & K)
Order of Bail passed in judicial discretion would not be interfered unless arbitrary or departed from settled principles of law.
PLD 1987 Sh. C (A J & K) 63
1987 SCMR 879
Proper exercise of discretion by High Court. Supreme Court would not interfere.
1986 SCMR 475/1978
1990 SCMR 270
NLR 1989 SCJ 330
1979 SCMR 523
1981 SCMR 860
1994 SCMR 1064
1996 SCMR 1685
Grant or refusal of bail by HC, purely discretionary; can not lightly be interfered with.
2000 SCMR 1438
PLJ 1979 SC 202
1979 SCMR 479/19
1980 SCMR 13
SC will not interfere in the case of bail unless circumstances are of exceptional character and refusal might entail risk of grave illegality or abuse of process or gross injustice
1979 SCMR 146
Supreme Court would not interfere with exercise of discretion unless:
i) Exercised not judicially
ii) Perverse
iii) Miscarriage of Justice would result
NLR 1980 SCJ 25
1981 SCMR 504
1981 SCMR 202/394/397/504
PLD 1986 SC (A J & K) 105/31
1986 SCMR 169
PLD 1988 SC (A J & K) 148
1979 SCMR 434
2001 P Cr. L.J 1059: SC (A J & K)
PLD 1963 SC 46
PLJ 1997 SC (A J & K) 37
Administration of justice: No exception can be taken to the exercise of discretion of High Court if no violation of Fundamental nature has taken place.
1979 SCMR 146
1980 SCMR 369
PLD 1981 SC (A K & K) 10
1981 SCMR 1216/397
1982 SCMR 894
PLD 1986 SC (A J & K) 105
1987 SCMR 432
1989 SCMR 1821
1995 SCMR 1249
2003 YLR 1309 : SC (A J & K)
II. Supreme Court would not interfere, where case is of further inquiry
1994 SCMR 454
2000 SCMR 161
2002 SCMR 1415
2003 P Cr. L.J 20: SC (A J & K)
III. No fundamental error of law or procedure was committed in granting the bail.
1979 SCMR 351/362/377
1981 SCMR 894
PLD 1988 SC (A J & K) 181
IV. Issue of Cancellation of Bail must come to an end at High Court level:
1989 SCMR 1388
V. Strong And Exceptional Grounds With Proof
Once bail is granted, the prosecution should make string case for cancellation by not making allegation alone but giving substantial proof.
1994 SCMR 1283
Once Bail is granted by a Court of competent jurisdiction then strong & exceptional grounds would be required for cancellation thereon.
PLD 1995 SC 34 (e)
PLD 1996 SC 241
1996 SCMR 984
1997 SCMR 915
PLJ 1997 SC (A J & K) 349
Bail not cancelled on the statement of co-accused, where the prosecution does not show any piece of evidence directly or indirectly against the accused.
2001 SCMR 14
Bail could not be recalled in absence of cogent reason.
1979 SCMR 65
VI. MISUSE OF BAIL
Before cancellation of Bail, there should be a clear proof that privilege of bail was misused or abuse of freedom was made.
PLD 1994 SC 88
1993 SCMR 714
2004 SCMR 243
1981 SCMR 565
1985 SCMR 1528
VII. MALAFIDE
Bail will not be cancelled if the application for cancellation is
i. Mala Fide
ii. Frivolous
iii. Without any basis
1994 SCMR 1283
VIII. CIVIL SUIT IS PENDING BETWEEN THE PARTIES.
1982 SCMR 626
2001 SCMR 1412
IX. INSTANCES WHERE SC REFUSED TO CANCELL BAIL GRANTED BY
HC
Leave to appeal was refused, when bail was granted to Lady by HC in exercise of its discretion.
1999 SCMR 2622
Order granting bail does not suffer from any legal or factually infirmity.
1979 SCMR 91/438
1988 SCMR 1129
PLD 1988 SC (A J & K) 181/48
1986 SCMR 1843
Cancellation declined on the grounds of i) Old age, ii) Disease and ii) No misuse of bail privilege.
1988 SCMR 28
PLD 1983 SC 83
1987 SCMR 1522
SC declined to interfere where bail was granted on medical grounds by HC.
PLD 1966 SC 708
1981 SCMR 686
SC refused to set aside bail where without full examination of evidence is required to ascertain whether accused was falsely implicated.
1986 SCMR 1387
No overt act is attributed to accused.
1978 SCMR 32
No overt act by accused, they could not be saddled with vicarious liability
2001 P Cr.L.J 1973: SC (A J & K)
Allegations were not substantiated in investigation.
2000 SCMR 1074
Grounds for cancellation of bail already taken into account and rejected. Leave to appeal was refused.
1979 SCMR 479
1982 SCMR 205
1987 SCMR 1879
Accused if powerful, bad relations of complainant and accused or accused not surrendering to police are not consideration for setting the bail aside.
1979 SCMR 119
Cancellation of bail refused where the name of accused appear in column 2 of the Challan.
1982 SCMR 440
1984 SCMR 1378
Accused not named in F.I.R and no Identification Parade was held.
2002 SCMR 1304
After careful examination of facts HC granted bail since opposite party was already allowed bail in the counter case
2002 SCMR 201
Cancellation of bail sought on ground that accused was threatening witnesses with dire consequences- no ground for cancellation
NLR 1980 SCJ 126
SC finds no reason for canceling the bail, where the case was fixed for arguments or trial is to be commenced soon.
1989 SCMR 520
1988 SCMR 1129
PLD 1989 SC 585
Where the defense version was still to be investigated.
1989 SCMR 2028
Case Law on Limitation
LIMITATION ACT, 1908
à Alteration in Limitation Act shall not have retrospective effect
& 1985 SCMR 190
& 1984 CLC 1907
à Duty of Court to determine that action is not barred by limitation.
& 1999 SCMR 1060 (f)
& 2003 SCMR 1815
& PLD 1993 SC 147 (a)
& PLD 1969 SC 167
& PLD 1985 SC 153
à Special Limitation overrides the general Limitation
& PLD 1964 Kar.399
à Alteration in Limitation Act shall not have retrospective effect
& 1985 SCMR 190
& 1984 CLC 1907
à Duty of Court to determine that action is not barred by limitation.
& 1999 SCMR 1060 (f)
& 2003 SCMR 1815
& PLD 1993 SC 147 (a)
& PLD 1969 SC 167
& PLD 1985 SC 153
à Special Limitation overrides the general Limitation
& PLD 1964 Kar.399
CASE LAWS ON SECTION 489-F PPC
CASE LAWS ON SECTION 489-F PPC
2008
1. 2008 YLR 328: (Lahore)
Before Fazal-e-Miran Chauhan, J
Sec. 497(5) Penal Code .Sec 489-F P.P.C, Bail, Cancellation of ---- After transfer of investigation, the police, in the subsequent investigation, having declared accused as guilty, his case fell under sub-clause (ii) of S. 497(5), Cr. P.C.---Complaint,, who was necessary party, was not present at the time of granting bail to accused---Court confirmed bail before arrest of accused was found innocent and a compromise had also been effected between the parties, however in the subsequent investigation accused was found guilty--- After second investigation the police had collected record making out a reasonable ground for believing accused to be guilty of offence under Sec. 489-F, P.P.C, which was sufficient ground to re-call the earlier order obtained by misrepresentation--- Mere fact that offence against accused did not fall within prohibitory clause of S.497(1), Cr.P.C. bail could not be claimed as a matter of right—Bail granting order passed by the Court was recalled.
2. 2008 YLR 760 (LAH) :
Muhammad Akhtar Shabbir, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused seemed to be in habit of committing fraud with people--- Offence Under S, 489-F, PPC, though did not fall with in the prohibition as contained in S-497 Cr. P.C., but in the present case of Rs. 1,50,00,000/- was involved—If accused was released on bail, likelihood was of his absconsion from the country--- Cases which were not covered within the prohibition clause as contained in S-497, Cr.P.C, grant of in such cases through was a rule and refusal an exception, but in view of circumstances , the case was covered within the exceptional clause of the rule---Sufficient material being available on record to connect accused with the commission of the offence., bail petition of accused was dismissed.
3. 2008 YLR 762 (LAH) :
Fazal-e-Miran Chauhan, J
---- S, 497—Penal Code (XLV of 1860), S, 489-F—Bail Grant of—
Offence against accused did not fall within the prohibitory clause of S, 497, Cr.P.C. maximum punishment of which was only 3 years--- Accused was in jail for the last 2 months---dispute arose between the parties on account of business transaction and in that connection Civil litigation was pending between the parties before the competent Court—Accused was no more required by the police and nothing was to be recovered from him--- Keeping accused behind the bar for an indefinite period would not serve or advance the prosecution case and it would amount to punishment before the conviction, which was not permissible under Criminal jurisprudence—Accused was admitted to bail, in circumstances.
4. 2008 SCMR 164 :
Rana Bhagwandas. Acting CJ
Sardar M. Raza Khan, JJ
Sec. 497(5) Penal Code (XLV of 1860),Sec 489-F P.P.C, Dismissed.
Constitution of Pakistan (1973), Art,185(3)--- Application for cancellation of bail, refusal of--- Accused earlier had been admitted to pre-arrest bail which had been maintained by High Court—Bail of accused had been cancelled only due to his absence during trial and he was taken into custody—High Court thereafter refused the accused on bail---admittedly accused was a citizen also of Norvey and usually resided there--- High Court had rightly observed that the accused was never served in connection with proceedings at trial--- Trial Court had fallen into a misconception that absence of accused was bound to entail the cancellation of bail under the orders of High Court--- Sessions Court had maintained the Order of Trial Court without even hearing the accused whose bail stood cancelled and who was then in custody--- Reasons advanced by High Court for granting bail to accused did not suffer from any infirmity--- Leave to appear was declined to complainant in circumstances.
5. 2008 MLD 450 (Lah) :
M Bilal Khan J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused had been taken divergent stands at different times; at one stage he stated that he had been compelled by the S.H.O. to execute the cheques in question while he was in illegal custody at the Police Station whereas on another occasion he stated that since the complainant being a Police Official he forcibly procured the cheques from him---Accused had also filed a suit for permanent injunction seeking a stay order against presentation of cheques---Filing of Civil suit by accused instead of strengthening his case, had weakened the same---Accused did not deserve the concession of bail in view of peculiar facts and circumstances of the case.
6. 2008 P. Cr. L.J 412 (KAR) :
Syed Zawwar Hussain Jaffery, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Grant of—
Delay of 84 hours in lodging F.I.R was not explained properly—Complainant was not owner of property, but he had left rented premises after termination of tenancy--- Counter-suits between accused and complainant regarding such property were pending in Civil Court--- Accused had filed suit ten (10) days before occurrence--- Interim bail granted to accused was confirmed in circumstances.
7. PLJ 2008 Cr.C. (Lah) :
M Bilal Khan, J
---S, 497(1)---Penal Code (XLV of 1860), S, 489-F--- Bail Dismissed of—
Pray for –Dishonored of cheque—Prohibitory clause is no sufficient ground--Taking divergent stands at different times—Accused has been taking divergent stands at different times--- At one stage he stated that he had been compelled by SHO to execute the cheque in-question while he was in illegal custody at police station whereas an other occasion he stated that complainant was a police official therefore, he forcibly procured cheque from him--- Held: Offence does not attract prohibitory clause u/s 497(1) of Cr. P.C. by itself is not sufficient to grant concersion of post arrest bail---Peculiar facts and circumstances of the present case, accused does not deserve the concession of bail--- bail was dismissed.
8. PLJ 2008 Cr. C. (LAH) 63 :
M. Khalid Alvi, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Bail Before arrest, Dismissed of—
Prayer for –Cheque was dishonored—Contentions—Cheque-book has been stolen about 7 months prior to registration of case--- Accused has devised a new method of committing fraud by lodging an F.I.R. of method of committing fraud by lodging an F.I.R. of theft of cheque-book and thereafter fleecing money from the accused and issuing cheque out of that cheque book—Although offence is punishable with only three years but the conduct of the accused speaks volumes, therefore he is not entitle to extra-ordinary relief of bail before arrest.
9. 2008 MLD 159 (Lah) :
Sh. Azmat Saeed, J
a). S. 489-F --- Issuance of cheques subsequently dishonoured --- Scope --- Mere issuance of a cheque which is subsequently dishonoured does not constitute an offences under S. 489-F, P.P.C., unless same is issued dishonestly and for the repayment of a loan or for discharging any obligation.
b). ---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, grant of—Section 489-F, P.P.C. nor any other provision of the Penal Code could be employed or used as a tool for effecting the recovery of a financial claim --- Such being the exclusive jurisdiction of the civil court, to permit the use of the criminal justice system for settlement of civil disputes or effecting the recovery of the amounts claimed by the party, would amount to abuse of the process of law --- Even otherwise , malafides of the police and the complainant were not only floating on the surface but leaping therefrom --- Accused was in police custody in connection with another F.I.R. got registered by the complainant, when in the police station the cheque in question was procured and he had disclosed this fact on being produced before the Magistrate which was even apparent from the order of the Magistrate – Brother of the accused had also been illegally detained who had to be recovered through judicial process---Police had acted in a mala fide manner by becoming a recovery agent of the complainant, rather than servants of the State enjoined to uphold the law--- Offencedid not fall within the prohibitory clause of S. 497, Cr. P.C. --- Cheque was already in the custody of the investigating agency and nothing was to be recovered from the accused --- Ad interim pre-arrest bail granted to accused was confirmed in circumstances.
10. 2008 P Cr. L.J. 701 (Lah) :
Abdul Shakoor Paracha, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Protective Bail, refusal of --- No mala fide appeared against the complainant or the Police --- High Court (Lahore), in circumstances declined to exercise its discretion to allow protective bail in a case which otherwise was registered in North-West Frontier Province.
11. 2008 YLR 1563 (Lahore):
Fazal-e-Miran Chauhan, J
--- S, 497 – Penal Code (XLV of 1860), S, 489-F --- Bail, refusal of --- Accused was named in F.I.R. with specific role of issuing a cheque to the complainant, which, was dishonoured on its presentation, which, prima facie, directly connected accused with commission of alleged offence --- Issuance of cheque in question was not denied by accused --- Section 489-F P.P.C. was added with intent to curb the tendency of issuing of cheques with the intention to cheat the others --- Cheque in question was issued by accused knowing that sufficient amount was not in his account; and steps were taken to ensure that the cheque would be encashed --- Intention of accused was to postpone the demand for the time being, by giving a cheque to the complainant with the knowledge that same would be dishonoured --- Bail, in such-like cases, would not to be granted in routine --- Bail petition was dismissed, in circumstances.
12. 2008 YLR 947 (Lahore):
Iqbal Hameed-ur-Rehman, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Pre-arrest Bail, refusal of --- Cheque issued by accused could not be encashed as the account was closed one day before its encashment --- Accused, thereafter, on the intervention of the respectables of the market, undertook to pay said amount and issued another cheque, which also was dishonoured and could not be encashed --- When accused was seeking pre-arrest bail and no mala fide had been proved against complainant and the police, pre-arrest bail could not be granted to him --- Mala fide on the part of accused and his brother, however was established --- Grant of pre-arrest bail was an extraordinary concessional relief in which conduct of accused was to be taken into consideration --- No case for grant of pre-arrest bail having been made out, accused did not deserve to be granted extraordinary relief of pre-arrest bail --- Bail petition, was dismissed, in circumstances.
2008
1. 2008 YLR 328: (Lahore)
Before Fazal-e-Miran Chauhan, J
Sec. 497(5) Penal Code .Sec 489-F P.P.C, Bail, Cancellation of ---- After transfer of investigation, the police, in the subsequent investigation, having declared accused as guilty, his case fell under sub-clause (ii) of S. 497(5), Cr. P.C.---Complaint,, who was necessary party, was not present at the time of granting bail to accused---Court confirmed bail before arrest of accused was found innocent and a compromise had also been effected between the parties, however in the subsequent investigation accused was found guilty--- After second investigation the police had collected record making out a reasonable ground for believing accused to be guilty of offence under Sec. 489-F, P.P.C, which was sufficient ground to re-call the earlier order obtained by misrepresentation--- Mere fact that offence against accused did not fall within prohibitory clause of S.497(1), Cr.P.C. bail could not be claimed as a matter of right—Bail granting order passed by the Court was recalled.
2. 2008 YLR 760 (LAH) :
Muhammad Akhtar Shabbir, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused seemed to be in habit of committing fraud with people--- Offence Under S, 489-F, PPC, though did not fall with in the prohibition as contained in S-497 Cr. P.C., but in the present case of Rs. 1,50,00,000/- was involved—If accused was released on bail, likelihood was of his absconsion from the country--- Cases which were not covered within the prohibition clause as contained in S-497, Cr.P.C, grant of in such cases through was a rule and refusal an exception, but in view of circumstances , the case was covered within the exceptional clause of the rule---Sufficient material being available on record to connect accused with the commission of the offence., bail petition of accused was dismissed.
3. 2008 YLR 762 (LAH) :
Fazal-e-Miran Chauhan, J
---- S, 497—Penal Code (XLV of 1860), S, 489-F—Bail Grant of—
Offence against accused did not fall within the prohibitory clause of S, 497, Cr.P.C. maximum punishment of which was only 3 years--- Accused was in jail for the last 2 months---dispute arose between the parties on account of business transaction and in that connection Civil litigation was pending between the parties before the competent Court—Accused was no more required by the police and nothing was to be recovered from him--- Keeping accused behind the bar for an indefinite period would not serve or advance the prosecution case and it would amount to punishment before the conviction, which was not permissible under Criminal jurisprudence—Accused was admitted to bail, in circumstances.
4. 2008 SCMR 164 :
Rana Bhagwandas. Acting CJ
Sardar M. Raza Khan, JJ
Sec. 497(5) Penal Code (XLV of 1860),Sec 489-F P.P.C, Dismissed.
Constitution of Pakistan (1973), Art,185(3)--- Application for cancellation of bail, refusal of--- Accused earlier had been admitted to pre-arrest bail which had been maintained by High Court—Bail of accused had been cancelled only due to his absence during trial and he was taken into custody—High Court thereafter refused the accused on bail---admittedly accused was a citizen also of Norvey and usually resided there--- High Court had rightly observed that the accused was never served in connection with proceedings at trial--- Trial Court had fallen into a misconception that absence of accused was bound to entail the cancellation of bail under the orders of High Court--- Sessions Court had maintained the Order of Trial Court without even hearing the accused whose bail stood cancelled and who was then in custody--- Reasons advanced by High Court for granting bail to accused did not suffer from any infirmity--- Leave to appear was declined to complainant in circumstances.
5. 2008 MLD 450 (Lah) :
M Bilal Khan J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Refusal of—
Accused had been taken divergent stands at different times; at one stage he stated that he had been compelled by the S.H.O. to execute the cheques in question while he was in illegal custody at the Police Station whereas on another occasion he stated that since the complainant being a Police Official he forcibly procured the cheques from him---Accused had also filed a suit for permanent injunction seeking a stay order against presentation of cheques---Filing of Civil suit by accused instead of strengthening his case, had weakened the same---Accused did not deserve the concession of bail in view of peculiar facts and circumstances of the case.
6. 2008 P. Cr. L.J 412 (KAR) :
Syed Zawwar Hussain Jaffery, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, Grant of—
Delay of 84 hours in lodging F.I.R was not explained properly—Complainant was not owner of property, but he had left rented premises after termination of tenancy--- Counter-suits between accused and complainant regarding such property were pending in Civil Court--- Accused had filed suit ten (10) days before occurrence--- Interim bail granted to accused was confirmed in circumstances.
7. PLJ 2008 Cr.C. (Lah) :
M Bilal Khan, J
---S, 497(1)---Penal Code (XLV of 1860), S, 489-F--- Bail Dismissed of—
Pray for –Dishonored of cheque—Prohibitory clause is no sufficient ground--Taking divergent stands at different times—Accused has been taking divergent stands at different times--- At one stage he stated that he had been compelled by SHO to execute the cheque in-question while he was in illegal custody at police station whereas an other occasion he stated that complainant was a police official therefore, he forcibly procured cheque from him--- Held: Offence does not attract prohibitory clause u/s 497(1) of Cr. P.C. by itself is not sufficient to grant concersion of post arrest bail---Peculiar facts and circumstances of the present case, accused does not deserve the concession of bail--- bail was dismissed.
8. PLJ 2008 Cr. C. (LAH) 63 :
M. Khalid Alvi, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Bail Before arrest, Dismissed of—
Prayer for –Cheque was dishonored—Contentions—Cheque-book has been stolen about 7 months prior to registration of case--- Accused has devised a new method of committing fraud by lodging an F.I.R. of method of committing fraud by lodging an F.I.R. of theft of cheque-book and thereafter fleecing money from the accused and issuing cheque out of that cheque book—Although offence is punishable with only three years but the conduct of the accused speaks volumes, therefore he is not entitle to extra-ordinary relief of bail before arrest.
9. 2008 MLD 159 (Lah) :
Sh. Azmat Saeed, J
a). S. 489-F --- Issuance of cheques subsequently dishonoured --- Scope --- Mere issuance of a cheque which is subsequently dishonoured does not constitute an offences under S. 489-F, P.P.C., unless same is issued dishonestly and for the repayment of a loan or for discharging any obligation.
b). ---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, grant of—Section 489-F, P.P.C. nor any other provision of the Penal Code could be employed or used as a tool for effecting the recovery of a financial claim --- Such being the exclusive jurisdiction of the civil court, to permit the use of the criminal justice system for settlement of civil disputes or effecting the recovery of the amounts claimed by the party, would amount to abuse of the process of law --- Even otherwise , malafides of the police and the complainant were not only floating on the surface but leaping therefrom --- Accused was in police custody in connection with another F.I.R. got registered by the complainant, when in the police station the cheque in question was procured and he had disclosed this fact on being produced before the Magistrate which was even apparent from the order of the Magistrate – Brother of the accused had also been illegally detained who had to be recovered through judicial process---Police had acted in a mala fide manner by becoming a recovery agent of the complainant, rather than servants of the State enjoined to uphold the law--- Offencedid not fall within the prohibitory clause of S. 497, Cr. P.C. --- Cheque was already in the custody of the investigating agency and nothing was to be recovered from the accused --- Ad interim pre-arrest bail granted to accused was confirmed in circumstances.
10. 2008 P Cr. L.J. 701 (Lah) :
Abdul Shakoor Paracha, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Protective Bail, refusal of --- No mala fide appeared against the complainant or the Police --- High Court (Lahore), in circumstances declined to exercise its discretion to allow protective bail in a case which otherwise was registered in North-West Frontier Province.
11. 2008 YLR 1563 (Lahore):
Fazal-e-Miran Chauhan, J
--- S, 497 – Penal Code (XLV of 1860), S, 489-F --- Bail, refusal of --- Accused was named in F.I.R. with specific role of issuing a cheque to the complainant, which, was dishonoured on its presentation, which, prima facie, directly connected accused with commission of alleged offence --- Issuance of cheque in question was not denied by accused --- Section 489-F P.P.C. was added with intent to curb the tendency of issuing of cheques with the intention to cheat the others --- Cheque in question was issued by accused knowing that sufficient amount was not in his account; and steps were taken to ensure that the cheque would be encashed --- Intention of accused was to postpone the demand for the time being, by giving a cheque to the complainant with the knowledge that same would be dishonoured --- Bail, in such-like cases, would not to be granted in routine --- Bail petition was dismissed, in circumstances.
12. 2008 YLR 947 (Lahore):
Iqbal Hameed-ur-Rehman, J
S- 498 --- Penal Code (XLV of 1860), S, 489-F --- Pre-arrest Bail, refusal of --- Cheque issued by accused could not be encashed as the account was closed one day before its encashment --- Accused, thereafter, on the intervention of the respectables of the market, undertook to pay said amount and issued another cheque, which also was dishonoured and could not be encashed --- When accused was seeking pre-arrest bail and no mala fide had been proved against complainant and the police, pre-arrest bail could not be granted to him --- Mala fide on the part of accused and his brother, however was established --- Grant of pre-arrest bail was an extraordinary concessional relief in which conduct of accused was to be taken into consideration --- No case for grant of pre-arrest bail having been made out, accused did not deserve to be granted extraordinary relief of pre-arrest bail --- Bail petition, was dismissed, in circumstances.
CASE LAWS ON SECTION 489-F PPC
CASE LAWS ON SECTION 489-F PPC
2007
1. 2007 P cr LJ 1492:
S.497 (5) Petition for cancellation of bail. (Bail cancels).
Bail granting order proceeded on mere technicalities and was conspicuous for the absence of any mention of respondent’s / accuser’s undertaking. Bail granted by Trial court offence under section 489-F P.P.C. did not attract the prohibitory clause of Sec 497(1) Cr P c ,but mere fact that the Prohibitory clause was not attracted, accused would not ipso facto become entitled to grant of bail.
2. 2007 P cr LJ 1064:
S.498 Petition for Pre-arrest bail (confirmed)
Offence under section 489-F PPC , though was non-bailable ,but High Court could not ignore the fact that the offence did not fall within the ambit of Prohibitory clause of Sec 497 Cr PC , and in the absence of exceptional circumstances.
3. 2007 P cr LJ 997:
Quashing of F.I.R. (Dismissed).
Most important ingredient of offence under section 489-F PPC. being issuance of a Cheque dishonestly, and was bounced by the bank.
Plea of the petitioner is that .during the pendency of Civil suit, Criminal proceedings could not be initiated.
4. 2007 P cr LJ 388:
497(5) &498 Cr P C. Cancellation of bail.(Petition Accepted).
Petition to the extent of co-accused was dismissed because no role was attributed to the co-accused in the F.I.R. and investigation, Prosecutions whole evidence revolves around the accused who was main culprit. So the petition is accepted to the extent of main accused.
5. 2007 YLR 1264 :
S 497 Cr P C. (Admitted Post Arrest Bail)
F.I.R. Lodged with delay of four years against accused and co-accused .Complainant alleged in F.I.R that despite payment of amount to accused, no land was got allotted in his favour .and matter was reported to Punchayat accused gave to complainant cheques which were later on dishonored .That complainant himself was involved in case registered under Sec 489-F PPC .Sec 468,470, and 420 PPC had been added later. Pre-arrest bail of co-accused had been confirmed by High Court. Rule of consistency was attracted to the case of accused and admitted post arrest bail.
6. 2007 YLR 1277:
Sec 497 Cr P C (Bail admitted)
The amount of Cheque in question had not been mentioned in the F.I.R. at all. Cheque was issued about three months prior to reporting of matter to the police. Neither Cheque issued by accused nor its attested copy was available on record of the case and no Bank officer had been cited as witness.
7. 2007 YLR 1280:
Sec.497 Cr P C. (Bail granted)
Section 489-F PPC, Maximum punishment for offence under section 489-F PPC, not more than three years, Present case was not covered by prohibition contained in section 497 Cr PC. F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
8. 2007 YLR 1120.
Section 497 Cr P C. (Bail Granted ).
Section 489-F . Maximum Punishment not more than three years. Not fall in Prohibitory Clause of 497 Cr P C . F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
9. 2007 YLR 1354.
Section 497 Cr P C. (Bail Granted).
Section 489-F. Accused was in Jail since one year. Challan was submitted but no progress. Offence did not fall within prohibitory clause of section 497 Cr P C. ( Keeping accused behind the bars for an indefinite period of time would not serve or advance prosecution’s case, rather same would amount to punishment before conviction, which was not permissible under CRIMINAL JURISPRUDENCE ).
10. 2007 YLR 1020 (1) :
Section 498 Cr.P.C. ( Pre arrest bail was dismissed)
Section 489-F. Accused failed to appear before the court and had also not furnished surety bonds as directed by the court. Accused who stood nominated in F.I.R, had misused concession of Pre-arrest bail. Bail application was dismissed.
11. 2007 P.Cr.L.J 100:
S.489-F-Bail. Grant of---
Accused issued a cheque as earnest money to complainant, which prima facie was not an obligation—Real intention of the parties with regard to the agreement would be determined by the Trial Court after recording evidence—Offence for which accused was charged ,did not fall under prohibited clause of Sec.497,Cr.P.C.—Accused was behind the bars and no more required for further investigation—To keep accused behind the bars for an indefinite period would not serve any use full purpose--- Accused was admitted to bail, in circumstances.
2007
1. 2007 P cr LJ 1492:
S.497 (5) Petition for cancellation of bail. (Bail cancels).
Bail granting order proceeded on mere technicalities and was conspicuous for the absence of any mention of respondent’s / accuser’s undertaking. Bail granted by Trial court offence under section 489-F P.P.C. did not attract the prohibitory clause of Sec 497(1) Cr P c ,but mere fact that the Prohibitory clause was not attracted, accused would not ipso facto become entitled to grant of bail.
2. 2007 P cr LJ 1064:
S.498 Petition for Pre-arrest bail (confirmed)
Offence under section 489-F PPC , though was non-bailable ,but High Court could not ignore the fact that the offence did not fall within the ambit of Prohibitory clause of Sec 497 Cr PC , and in the absence of exceptional circumstances.
3. 2007 P cr LJ 997:
Quashing of F.I.R. (Dismissed).
Most important ingredient of offence under section 489-F PPC. being issuance of a Cheque dishonestly, and was bounced by the bank.
Plea of the petitioner is that .during the pendency of Civil suit, Criminal proceedings could not be initiated.
4. 2007 P cr LJ 388:
497(5) &498 Cr P C. Cancellation of bail.(Petition Accepted).
Petition to the extent of co-accused was dismissed because no role was attributed to the co-accused in the F.I.R. and investigation, Prosecutions whole evidence revolves around the accused who was main culprit. So the petition is accepted to the extent of main accused.
5. 2007 YLR 1264 :
S 497 Cr P C. (Admitted Post Arrest Bail)
F.I.R. Lodged with delay of four years against accused and co-accused .Complainant alleged in F.I.R that despite payment of amount to accused, no land was got allotted in his favour .and matter was reported to Punchayat accused gave to complainant cheques which were later on dishonored .That complainant himself was involved in case registered under Sec 489-F PPC .Sec 468,470, and 420 PPC had been added later. Pre-arrest bail of co-accused had been confirmed by High Court. Rule of consistency was attracted to the case of accused and admitted post arrest bail.
6. 2007 YLR 1277:
Sec 497 Cr P C (Bail admitted)
The amount of Cheque in question had not been mentioned in the F.I.R. at all. Cheque was issued about three months prior to reporting of matter to the police. Neither Cheque issued by accused nor its attested copy was available on record of the case and no Bank officer had been cited as witness.
7. 2007 YLR 1280:
Sec.497 Cr P C. (Bail granted)
Section 489-F PPC, Maximum punishment for offence under section 489-F PPC, not more than three years, Present case was not covered by prohibition contained in section 497 Cr PC. F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
8. 2007 YLR 1120.
Section 497 Cr P C. (Bail Granted ).
Section 489-F . Maximum Punishment not more than three years. Not fall in Prohibitory Clause of 497 Cr P C . F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
9. 2007 YLR 1354.
Section 497 Cr P C. (Bail Granted).
Section 489-F. Accused was in Jail since one year. Challan was submitted but no progress. Offence did not fall within prohibitory clause of section 497 Cr P C. ( Keeping accused behind the bars for an indefinite period of time would not serve or advance prosecution’s case, rather same would amount to punishment before conviction, which was not permissible under CRIMINAL JURISPRUDENCE ).
10. 2007 YLR 1020 (1) :
Section 498 Cr.P.C. ( Pre arrest bail was dismissed)
Section 489-F. Accused failed to appear before the court and had also not furnished surety bonds as directed by the court. Accused who stood nominated in F.I.R, had misused concession of Pre-arrest bail. Bail application was dismissed.
11. 2007 P.Cr.L.J 100:
S.489-F-Bail. Grant of---
Accused issued a cheque as earnest money to complainant, which prima facie was not an obligation—Real intention of the parties with regard to the agreement would be determined by the Trial Court after recording evidence—Offence for which accused was charged ,did not fall under prohibited clause of Sec.497,Cr.P.C.—Accused was behind the bars and no more required for further investigation—To keep accused behind the bars for an indefinite period would not serve any use full purpose--- Accused was admitted to bail, in circumstances.
CASE LAWS ON SECTION 489-F PPC
CASE LAWS ON SECTION 489-F PPC
2006
1. PLD 2006 Lah 752 (a) :
Purpose of 489-F was to curb the fraudulent or dishonest issuance of cheques to cause dishonest gain or to cause dishonest loss, before approaching the investigation agency or launching a Criminal Prosecution the payee could give a notice to the drawer after dishonor of cheque.
2. 2006 MLD 1184(b) :
High Court holding that civil suit and criminal proceedings were two different remedies provided by law having different consequences as in commission of an offence.
Exercise of right of filing of suit could not create any hindrance in way of lodging F.I.R. Under Section 489-F P.P.C.
3. 2006 P Cr L J.157, 2005 P Cr L J.684 , 2005 YLR 1565 :
Petitioner in his application filed under section 22-A Cr PC . for registration of case for offence under section 489-F PPC, against the person who issued a cheque in favour of the petitioner and was bounced. But the Additional Session Judge dismissed his application on ground that which had introduced offence under Section 489-F PPC had died its natural death, and honorable High Court set aside the order of Additional Session Judge.
4. 2006 YLR 1826 :
Section 489-F. No retrospective effect of this section, and accused could not have been tried for the offence under Sec. 489-F PPC.
5. PLD 2006 Lah 434(a):
Section 489-F. Provision of section489-F, P.P.C. is a valid and living law. (2005 P.Cr.L.J 1462).(Shabbar Raza Rizvi ).
6. 2006 YLR 1852 :
Ali Nawaz Chowhan, J
a) Section 497(1)(5) ---Penal Code (XLV of 1860), S, 489-F--- Bail grant of— Section 489-F P.P.C. would only be relevant where in respect of a loan or non-fulfillment of an obligation, a cheque was issued and it got dishonoured in the way mentioned under said section --- Section 489-F, P.P.C. would not be attracted for any other purpose --- Colollary of that would be that cheques which were issued otherwise than for purpose of re-payments of loans or fulfillment of obligation, would not be covered by definition of S. 489-F, P.P.C. --- Applications asking for cancellation of bail, were dismissed because none of those pertained to the purpose as defined – Application asking for grant of post-arrest bail, was allowed, accordingly.
b) Section 489-F would only be relevant where in respect of a loan or non-fulfillment of an obligation. The Cheque was issued and got dishonored the way mentioned under said section.
7. 2006 P.Cr.L.J. 187(a):
Quashing of F.I.R.
The Cheque was issued before the section 489-F on the statute book. So no retrospective operation. F.I.R. Quashed.
8. 2006 P. Cr. L. J. 1779: (LAH)
Muhammad Nawaz Bhatti, J
S—497(5)—Penal Code( XLV of 1860), S. 489-F--- Application for cancellation of bail--- Delay of eight months in lodging F.I.R.--- Respondent/accused was not a previous convict—No proof was on the file to show that the accused had misused concession of bail or any likelihood was of his abscondance--- Offence against accused of bail or any likelihood was of his abscondance--- Offence against accused did not fall in the prohibitory clause of 497, Cr.P.C.—Civil litigation was pending between accused and petitioner/complainant and it was yet to be seen whether disputed cheques was issued with criminal intention to deceive the complainant --- Challan had been submitted in the Court and the trial had commenced--- Consideration for Cancellation of bail were different from the consideration for grant of bail.---Strong and exceptional grounds were needed for cancellation of bail after bail was granted by the competent court. Bail had been granted by competent court. Bail had been granted to accused for valid reasons and it was not a fit case for cancellation of bail as strong and exceptional grounds which were needed to get it cancelled were not available. Trial Court had rightly exercised jurisdiction in the matter of grant of bail to accused.--- Petition for cancellation of bail, was dismissed.
9. PLD 2005 Lah 607 (b):
Rational behind the enactment of Sec.489-F PPC. Does not call for a mechanical action immediately when a cheque is returned by a banker, but it used only in the matter of payment of loan, business transactions, genuine disputes and contractual obligations may not constitute for the offence.
10. 2005 SCMR 306:
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R. against the accused. Accused raised plea that the disputed entire amount was paid but from different account. F.I.R. was quashed.
11. 2005 P.Cr.L.J 144 :
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R against the accused but during investigation he had been found prima-facie innocent and F.I.R was quashed.
12. 2006 P.Cr.L.J 522(a) :
Sec 497(2)
Sec 489-F. Bail Grant Of. ----Civil court was to determine as to whether the agreement in question was enforceable under the law or not—Cheque which was dishonored by the Bank on presentation had been issued by the first party as guarantee in favour of the second party---Second party was to recover the amount through the Court of law at the risk and cost of the first party---Case against accused, therefore, to all intents and purposes was of further inquiry within the meaning of S.497(2), Cr.P.C.—Offence under section 489-F P.P.C. did not fall within the prohibitory clause of S.497(1),Cr.P.C. and bail in such cases was a rule and refusal an exception—Accused being a lady was also entitled to grant of bail under first proviso to S.497,Cr.P.C,--Consideration for grant of bail before arrest and for grant of after arrest being altogether different, dismissal of the application of the accused for pre-arrest bail by the High Court earlier had no hearing on the merits of the present application for post-arrest bail---Accused was in jail for the last about two months--- Bail was allowed to accused in circumstances.
13. 2006 YLR 23 (Lah) :
M. Nawaz Bhatti, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, refusal of—
Issuance of cheque in question, presentation of same before concerned Bank and its dishonour, were admitted facts--- Accused had to failed to point out any malafide or ulterior motive on the part of prosecution to falsely involve him in the case--- Bail petition of accused was dismissed, in circumstances.
14. 2006 YLR 50 (Lah) :
Fazal-e-Miran Chauhan, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- bail before arrest, grant of—
Accused had been dealing in business with complainant on basis of agreement ---- As per working relationship of accused and complainant, accused used to issue post dated cheques to complainant and accused, who was working as distributor of complainant, after selling goods of complainant in the market and effecting recoveries from the market, had been making payment to complainant who, in lieu thereof, used to return post-dated cheques received by him as a security in lieu of goods given by him to accused--- Some dispute regarding supply of substandard goods took place between accused and complainant and accused demanded refund of price of substandard goods supplied by complainant and on that account dispute arose between parties and payment was stopped by accused.----Accused apprehended some action from complainant with regard to cheques, filed civil suit seeking declaration, cancellation if cheques, permanent injunction, specific performance of agreement and renditions of accounts----Civil court vide its order suspended operation of disputed two cheques and directed complainant not to encash same till further order—Despite such order of civil court, disputed cheques were presented by complainant and same were returned by Bank constituting offence under Sec. 489-F, P.P.C. and as a result of which F.I.R. was registered against accused---- Contention of complainant that civil suit was filed by accused seeking suspension of disputed cheques, was repelled as said cheques were not in existence when said suit was filed by accused---Was yet to be seen whether cheques in dispute were issued with criminal intention to deceive complainant---Bail already granted to accused, was confirmed, in circumstances.
15. 2006 YLR 406 (Lah) :
Sh Javaid Surfraz, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, grant of—
Business dealing existed between accused and complainant and due to said dealings cheque in question was handed over to complainant---Amount of cheques in question, had already been paid to complainant in due course of time and said cheque was not to be presented to bank for encashment---In order to attract Sec 489-F, P.P.C. element of dishonesty should be shown, which element was absent in the present case as amount had already been paid to the complainant--- Dishonoring of Cheque would not mean that criminal case be registered forthwith, but purpose for which cheque was issued should be taken into account before initiating criminal action--- Accused, in circumstances had made out a case of further inquiry into his guilt--- Offence with which Accused was charged being punishable only with three years’ R.I., would not fall within prohibitory clause of S.497 Cr.P.C.,--- Grant of bail, in such-like cases, was a rule and its refusal an exception--- Pre-arrest bail was already granted to accused, was confirmed in circumstances.
16. 2006 YLR 1452 (Lah) :
Ijaz Ahmad Chaudhry, J
---S, 497(1)---Penal Code (XLV of 1860), S, 489-F--- Bail grant of—
Offence did not fall within the prohibitory clause of S.497 Cr.P.C. and grant of bail in such-like cases was a rule and refusal an exception--- Accused was behind the bar since his arrest --- No exceptional circumstances were found in the case for refusal of bail to accused --- Accused was released on bail, in circumstances.
17. 2006 YLR 2042(1) (Lah) :
Sardar M. Aslam, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, grant of—
Civil suit being pending adjudication in respect of dispute raised in F.I.R., Accused was admitted to bail, in circumstances.
18. 2006 YLR 1828 (Lah) :
M. Bilal Khan, J
---S, 498---Penal Code (XLV of 1860), S, 489-F---Pre-arrest Bail, refusal of—
Accused who was allowed bail in a case, when came out of court room was apprehended by police officer--- Inquiry had revealed that said subsequent arrest was being sought in a different case registered against him which was subject-matter of present bail application and not in the case in which he had been allowed ad interim pre-arrest bail, whereupon accused was handed over to police – Contention of accused that once bail application had been filed in the office, police could not effect arrest of accused had no substance – Accused had already been formally arrested when present petition came up before the Court for hearing--- Bail petition for Pre-arrest bail thus having become infructuous, was dismissed.
19. 2006 YLR 1891 (Lah) ;
Sh. Hakim Ali, J
---S, 497(2)---Penal Code (XLV of 1860), S, 489-F--- Bail, grant of—
Further inquiry --- Cheque number, dated, month and year was not mentioned in the F.I.R. --- Time when said cheque was delivered to the informant and before whom it was given, was also not mentioned --- After registration of F.I.R. cheque was got recovered by the police from accused, but recovery memo, did not contain any date, month or year when it was recovered --- All said facts required a thorough probe into the case, which could be made after evidence was brought on the record by prosecution in the trial --- Case of accused being a case of further inquiry, he was admitted to bail accordingly.
20. 2006 YLR 3043 (Lah) :
M. Bilal Khan, J
---S, 498---Penal Code (XLV of 1860), S, 489-F--- Pre-arrest Bail, refusal of—
Issuance of cheques in question by accused stood admitted—Accused during investigation, was found guilty --- Prima facie there appeared to be material evidence available on record connecting accused with the commission of crime --- Counsel for accused had not been able to point out any malice, the basic ingredient for the grant of pre-arrest bail, either on the part of the complainant or the police to involve him falsely in the case – Complainant had been alleged deprived of a huge amount at the hands of accused – Accused could not be admitted to pre-arrest bail --- Bail petition was dismissed and interim anticipatory bail allowed to accused, was recalled.
21. 2006 YLR 3199 (Lah) :
Syed Shabbar Raza Rizvi, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail grant of—
Challan submitted in Court --- Custody of accused not required for investigation --- Accused remained in jail for more then two months --- Offence not falling within the prohibitory clause of S. 497, Cr.P.C. --- Accused was granted bail in circumstances.
2006
1. PLD 2006 Lah 752 (a) :
Purpose of 489-F was to curb the fraudulent or dishonest issuance of cheques to cause dishonest gain or to cause dishonest loss, before approaching the investigation agency or launching a Criminal Prosecution the payee could give a notice to the drawer after dishonor of cheque.
2. 2006 MLD 1184(b) :
High Court holding that civil suit and criminal proceedings were two different remedies provided by law having different consequences as in commission of an offence.
Exercise of right of filing of suit could not create any hindrance in way of lodging F.I.R. Under Section 489-F P.P.C.
3. 2006 P Cr L J.157, 2005 P Cr L J.684 , 2005 YLR 1565 :
Petitioner in his application filed under section 22-A Cr PC . for registration of case for offence under section 489-F PPC, against the person who issued a cheque in favour of the petitioner and was bounced. But the Additional Session Judge dismissed his application on ground that which had introduced offence under Section 489-F PPC had died its natural death, and honorable High Court set aside the order of Additional Session Judge.
4. 2006 YLR 1826 :
Section 489-F. No retrospective effect of this section, and accused could not have been tried for the offence under Sec. 489-F PPC.
5. PLD 2006 Lah 434(a):
Section 489-F. Provision of section489-F, P.P.C. is a valid and living law. (2005 P.Cr.L.J 1462).(Shabbar Raza Rizvi ).
6. 2006 YLR 1852 :
Ali Nawaz Chowhan, J
a) Section 497(1)(5) ---Penal Code (XLV of 1860), S, 489-F--- Bail grant of— Section 489-F P.P.C. would only be relevant where in respect of a loan or non-fulfillment of an obligation, a cheque was issued and it got dishonoured in the way mentioned under said section --- Section 489-F, P.P.C. would not be attracted for any other purpose --- Colollary of that would be that cheques which were issued otherwise than for purpose of re-payments of loans or fulfillment of obligation, would not be covered by definition of S. 489-F, P.P.C. --- Applications asking for cancellation of bail, were dismissed because none of those pertained to the purpose as defined – Application asking for grant of post-arrest bail, was allowed, accordingly.
b) Section 489-F would only be relevant where in respect of a loan or non-fulfillment of an obligation. The Cheque was issued and got dishonored the way mentioned under said section.
7. 2006 P.Cr.L.J. 187(a):
Quashing of F.I.R.
The Cheque was issued before the section 489-F on the statute book. So no retrospective operation. F.I.R. Quashed.
8. 2006 P. Cr. L. J. 1779: (LAH)
Muhammad Nawaz Bhatti, J
S—497(5)—Penal Code( XLV of 1860), S. 489-F--- Application for cancellation of bail--- Delay of eight months in lodging F.I.R.--- Respondent/accused was not a previous convict—No proof was on the file to show that the accused had misused concession of bail or any likelihood was of his abscondance--- Offence against accused of bail or any likelihood was of his abscondance--- Offence against accused did not fall in the prohibitory clause of 497, Cr.P.C.—Civil litigation was pending between accused and petitioner/complainant and it was yet to be seen whether disputed cheques was issued with criminal intention to deceive the complainant --- Challan had been submitted in the Court and the trial had commenced--- Consideration for Cancellation of bail were different from the consideration for grant of bail.---Strong and exceptional grounds were needed for cancellation of bail after bail was granted by the competent court. Bail had been granted by competent court. Bail had been granted to accused for valid reasons and it was not a fit case for cancellation of bail as strong and exceptional grounds which were needed to get it cancelled were not available. Trial Court had rightly exercised jurisdiction in the matter of grant of bail to accused.--- Petition for cancellation of bail, was dismissed.
9. PLD 2005 Lah 607 (b):
Rational behind the enactment of Sec.489-F PPC. Does not call for a mechanical action immediately when a cheque is returned by a banker, but it used only in the matter of payment of loan, business transactions, genuine disputes and contractual obligations may not constitute for the offence.
10. 2005 SCMR 306:
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R. against the accused. Accused raised plea that the disputed entire amount was paid but from different account. F.I.R. was quashed.
11. 2005 P.Cr.L.J 144 :
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R against the accused but during investigation he had been found prima-facie innocent and F.I.R was quashed.
12. 2006 P.Cr.L.J 522(a) :
Sec 497(2)
Sec 489-F. Bail Grant Of. ----Civil court was to determine as to whether the agreement in question was enforceable under the law or not—Cheque which was dishonored by the Bank on presentation had been issued by the first party as guarantee in favour of the second party---Second party was to recover the amount through the Court of law at the risk and cost of the first party---Case against accused, therefore, to all intents and purposes was of further inquiry within the meaning of S.497(2), Cr.P.C.—Offence under section 489-F P.P.C. did not fall within the prohibitory clause of S.497(1),Cr.P.C. and bail in such cases was a rule and refusal an exception—Accused being a lady was also entitled to grant of bail under first proviso to S.497,Cr.P.C,--Consideration for grant of bail before arrest and for grant of after arrest being altogether different, dismissal of the application of the accused for pre-arrest bail by the High Court earlier had no hearing on the merits of the present application for post-arrest bail---Accused was in jail for the last about two months--- Bail was allowed to accused in circumstances.
13. 2006 YLR 23 (Lah) :
M. Nawaz Bhatti, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, refusal of—
Issuance of cheque in question, presentation of same before concerned Bank and its dishonour, were admitted facts--- Accused had to failed to point out any malafide or ulterior motive on the part of prosecution to falsely involve him in the case--- Bail petition of accused was dismissed, in circumstances.
14. 2006 YLR 50 (Lah) :
Fazal-e-Miran Chauhan, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- bail before arrest, grant of—
Accused had been dealing in business with complainant on basis of agreement ---- As per working relationship of accused and complainant, accused used to issue post dated cheques to complainant and accused, who was working as distributor of complainant, after selling goods of complainant in the market and effecting recoveries from the market, had been making payment to complainant who, in lieu thereof, used to return post-dated cheques received by him as a security in lieu of goods given by him to accused--- Some dispute regarding supply of substandard goods took place between accused and complainant and accused demanded refund of price of substandard goods supplied by complainant and on that account dispute arose between parties and payment was stopped by accused.----Accused apprehended some action from complainant with regard to cheques, filed civil suit seeking declaration, cancellation if cheques, permanent injunction, specific performance of agreement and renditions of accounts----Civil court vide its order suspended operation of disputed two cheques and directed complainant not to encash same till further order—Despite such order of civil court, disputed cheques were presented by complainant and same were returned by Bank constituting offence under Sec. 489-F, P.P.C. and as a result of which F.I.R. was registered against accused---- Contention of complainant that civil suit was filed by accused seeking suspension of disputed cheques, was repelled as said cheques were not in existence when said suit was filed by accused---Was yet to be seen whether cheques in dispute were issued with criminal intention to deceive complainant---Bail already granted to accused, was confirmed, in circumstances.
15. 2006 YLR 406 (Lah) :
Sh Javaid Surfraz, J
---S, 498---Pakistan Penal Code (XLV of 1860), S, 489-F--- Pre-arrest bail, grant of—
Business dealing existed between accused and complainant and due to said dealings cheque in question was handed over to complainant---Amount of cheques in question, had already been paid to complainant in due course of time and said cheque was not to be presented to bank for encashment---In order to attract Sec 489-F, P.P.C. element of dishonesty should be shown, which element was absent in the present case as amount had already been paid to the complainant--- Dishonoring of Cheque would not mean that criminal case be registered forthwith, but purpose for which cheque was issued should be taken into account before initiating criminal action--- Accused, in circumstances had made out a case of further inquiry into his guilt--- Offence with which Accused was charged being punishable only with three years’ R.I., would not fall within prohibitory clause of S.497 Cr.P.C.,--- Grant of bail, in such-like cases, was a rule and its refusal an exception--- Pre-arrest bail was already granted to accused, was confirmed in circumstances.
16. 2006 YLR 1452 (Lah) :
Ijaz Ahmad Chaudhry, J
---S, 497(1)---Penal Code (XLV of 1860), S, 489-F--- Bail grant of—
Offence did not fall within the prohibitory clause of S.497 Cr.P.C. and grant of bail in such-like cases was a rule and refusal an exception--- Accused was behind the bar since his arrest --- No exceptional circumstances were found in the case for refusal of bail to accused --- Accused was released on bail, in circumstances.
17. 2006 YLR 2042(1) (Lah) :
Sardar M. Aslam, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail, grant of—
Civil suit being pending adjudication in respect of dispute raised in F.I.R., Accused was admitted to bail, in circumstances.
18. 2006 YLR 1828 (Lah) :
M. Bilal Khan, J
---S, 498---Penal Code (XLV of 1860), S, 489-F---Pre-arrest Bail, refusal of—
Accused who was allowed bail in a case, when came out of court room was apprehended by police officer--- Inquiry had revealed that said subsequent arrest was being sought in a different case registered against him which was subject-matter of present bail application and not in the case in which he had been allowed ad interim pre-arrest bail, whereupon accused was handed over to police – Contention of accused that once bail application had been filed in the office, police could not effect arrest of accused had no substance – Accused had already been formally arrested when present petition came up before the Court for hearing--- Bail petition for Pre-arrest bail thus having become infructuous, was dismissed.
19. 2006 YLR 1891 (Lah) ;
Sh. Hakim Ali, J
---S, 497(2)---Penal Code (XLV of 1860), S, 489-F--- Bail, grant of—
Further inquiry --- Cheque number, dated, month and year was not mentioned in the F.I.R. --- Time when said cheque was delivered to the informant and before whom it was given, was also not mentioned --- After registration of F.I.R. cheque was got recovered by the police from accused, but recovery memo, did not contain any date, month or year when it was recovered --- All said facts required a thorough probe into the case, which could be made after evidence was brought on the record by prosecution in the trial --- Case of accused being a case of further inquiry, he was admitted to bail accordingly.
20. 2006 YLR 3043 (Lah) :
M. Bilal Khan, J
---S, 498---Penal Code (XLV of 1860), S, 489-F--- Pre-arrest Bail, refusal of—
Issuance of cheques in question by accused stood admitted—Accused during investigation, was found guilty --- Prima facie there appeared to be material evidence available on record connecting accused with the commission of crime --- Counsel for accused had not been able to point out any malice, the basic ingredient for the grant of pre-arrest bail, either on the part of the complainant or the police to involve him falsely in the case – Complainant had been alleged deprived of a huge amount at the hands of accused – Accused could not be admitted to pre-arrest bail --- Bail petition was dismissed and interim anticipatory bail allowed to accused, was recalled.
21. 2006 YLR 3199 (Lah) :
Syed Shabbar Raza Rizvi, J
---S, 497---Penal Code (XLV of 1860), S, 489-F--- Bail grant of—
Challan submitted in Court --- Custody of accused not required for investigation --- Accused remained in jail for more then two months --- Offence not falling within the prohibitory clause of S. 497, Cr.P.C. --- Accused was granted bail in circumstances.
CASE LAWS ON SECTION 489-F PPC
CASE LAWS ON SECTION 489-F PPC
2005 and 2004
1. 2006 P Cr L J.157, 2005 P Cr L J.684 , 2005 YLR 1565 :
Petitioner in his application filed under section 22-A Cr PC . for registration of case for offence under section 489-F PPC, against the person who issued a cheque in favour of the petitioner and was bounced. But the Additional Session Judge dismissed his application on ground that which had introduced offence under Section 489-F PPC had died its natural death, and honorable High Court set aside the order of Additional Session Judge.
1.PLD 2005 Lah 607 (b):
Rational behind the enactment of Sec.489-F PPC. Does not call for a mechanical action immediately when a cheque is returned by a banker, but it used only in the matter of payment of loan, business transactions, genuine disputes and contractual obligations may not constitute for the offence.
2.2005 SCMR 306:
Quashing of F.I.R. Cheque was dishonored and complainant laughed an F.I.R. against the accused. Accused raised plea that the disputed entire amount was paid but from different account. F.I.R. was quashed.
3. 2005 P.Cr.L.J 144 :
Quashing of F.I.R. Cheque was dishonored and complainant laughed an F.I.R against the accused but during investigation he had been found prima-facie innocent and F.I.R was quashed.
4). 2004 YLR 2675:
Sec.489-F P.P.C. Bail Grant of.
Both accused and complainant were doing business with each other and issuance of some cheques could be in course of such business—even otherwise accused was not involved in a case falling within prohibitory clause of Sec.497. Cr.P.C. and grant of bail in such like cases was a rule and refusal was an exception and no exceptional circumstances existed in case for refusal of bail to him--- Nothing was to be recovered from accused and he could not be kept in jail for indefinite period---Accused was admitted to bail, in circumstances.
2005 and 2004
1. 2006 P Cr L J.157, 2005 P Cr L J.684 , 2005 YLR 1565 :
Petitioner in his application filed under section 22-A Cr PC . for registration of case for offence under section 489-F PPC, against the person who issued a cheque in favour of the petitioner and was bounced. But the Additional Session Judge dismissed his application on ground that which had introduced offence under Section 489-F PPC had died its natural death, and honorable High Court set aside the order of Additional Session Judge.
1.PLD 2005 Lah 607 (b):
Rational behind the enactment of Sec.489-F PPC. Does not call for a mechanical action immediately when a cheque is returned by a banker, but it used only in the matter of payment of loan, business transactions, genuine disputes and contractual obligations may not constitute for the offence.
2.2005 SCMR 306:
Quashing of F.I.R. Cheque was dishonored and complainant laughed an F.I.R. against the accused. Accused raised plea that the disputed entire amount was paid but from different account. F.I.R. was quashed.
3. 2005 P.Cr.L.J 144 :
Quashing of F.I.R. Cheque was dishonored and complainant laughed an F.I.R against the accused but during investigation he had been found prima-facie innocent and F.I.R was quashed.
4). 2004 YLR 2675:
Sec.489-F P.P.C. Bail Grant of.
Both accused and complainant were doing business with each other and issuance of some cheques could be in course of such business—even otherwise accused was not involved in a case falling within prohibitory clause of Sec.497. Cr.P.C. and grant of bail in such like cases was a rule and refusal was an exception and no exceptional circumstances existed in case for refusal of bail to him--- Nothing was to be recovered from accused and he could not be kept in jail for indefinite period---Accused was admitted to bail, in circumstances.
Case Law 489-F, PPC
CASE LAWS ON SECTION 489-F PPC
2005
1. 2007 P cr LJ 1492:
S.497 (5) Petition for cancellation of bail. (Bail cancels).
Bail granting order proceeded on mere technicalities and was conspicuous for the absence of any mention of respondent’s / accuser’s undertaking. Bail granted by Trial court offence under section 489-F P.P.C. did not attract the prohibitory clause of Sec 497(1) Cr P c ,but mere fact that the Prohibitory clause was not attracted, accused would not ipso facto become entitled to grant of bail.
2. 2007 P cr LJ 1064:
S.498 Petition for Pre-arrest bail (confirmed)
Offence under section 489-F PPC ,though was non-bailable ,but High Court could not ignore the fact that the offence did not fall within the ambit of Prohibitory clause of Sec 497 Cr PC , and in the absence of exceptional circumstances.
3. 2007 P cr LJ 997:
Quashing of F.I.R. (Dismissed).
Most important ingredient of offence under section 489-F PPC . being issuance of a Cheque dishonestly, and was bounced by the bank.
Plea of the petitioner is that .during the pendency of Civil suit, Criminal proceedings could not be initiated.
4. 2007 P cr LJ 388:
497(5) &498 Cr P C . Cancellation of bail .(Petition Accepted).
Petition to the extent of co-accused was dismissed because no role was attributed to the co-accused in the F.I.R. and investigation, Prosecutions whole evidence revolves around the accused who was main culprit. So the petition is accepted to the extent of main accused.
5. 2007 YLR 1264 :
S 497 Cr P C. (Admitted Post Arrest Bail)
F.I.R. Lodged with delay of four years against accused and co-accused .Complainant alleged in F.I.R that despite payment of amount to accused, no land was got allotted in his favour .and matter was reported to Punchayat accused gave to complainant cheques which were later on dishonored .That complainant himself was involved in case registered under Sec 489-F PPC .Sec 468,470, and 420 PPC had been added later. Pre-arrest bail of co-accused had been confirmed by High Court. Rule of consistency was attracted to the case of accused and admitted post arrest bail.
6. 2007 YLR 1277:
Sec 497 Cr P C (Bail admitted)
The amount of Cheque in question had not been mentioned in the F.I.R. at all. Cheque was issued about three months prior to reporting of matter to the police. Neither Cheque issued by accused nor its attested copy was available on record of the case and no Bank officer had been cited as witness.
7. 2007 YLR 1280:
Sec.497 Cr P C. (Bail granted)
Section 489-F PPC, Maximum punishment for offence under section 489-F PPC, not more than three years, Present case was not covered by prohibition contained in section 497 Cr PC. F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
8. 2007 YLR 1120.
Section 497 Cr P C. (Bail Granted ).
Section 489-F . Maximum Punishment not more than three years. Not fall in Prohibitory Clause of 497 Cr P C . F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
9. 2007 YLR 1354.
Section 497 Cr P C. (Bail Granted).
Section 489-F. Accused was in Jail since one year. Challan was submitted but no progress. Offence did not fall within prohibitory clause of section 497 Cr P C. ( Keeping accused behind the bars for an indefinite period of time would not serve or advance prosecution’s case, rather same would amount to punishment before conviction, which was not permissible under CRIMINAL JURISPRUDENCE ).
10. 2007 YLR 1020 (1) :
Section 498 Cr.P.C. ( Pre arrest bail was dismissed)
Section 489-F. Accused failed to appear before the court and had also not furnished surety bonds as directed by the court. Accused who stood nominated in F.I.R, had misused concession of Pre-arrest bail.Bail application was dismissed.
11.PLD 2006 Lah 752 (a) :
Purpose of 489-F was to curb the fraudulent or dishonest issuance of cheques to cause dishonest gain or to cause dishonest loss, before approaching the investigation agency or launching a Criminal Prosecution the payee could give a notice to the drawer after dishonor of cheque.
10. 2006 MLD 1184(b) :
High Court holding that civil suit and criminal proceedings were two different remedies provided by law having different consequences as in commission of an offence.
Exercise of right of filing of suit could not create any hindrance in way of lodging F.I.R. Under Section 489-F P.P.C.
11. 2006 P Cr L J.157, 2005 P Cr L J.684 , 2005 YLR 1565 :
Petitioner in his application filed under section 22-A Cr PC . for registration of case for offence under section 489-F PPC, against the person who issued a cheque in favour of the petitioner and was bounced. But the Additional Session Judge dismissed his application on ground that which had introduced offence under Section 489-F PPC had died its natural death, and honorable High Court set aside the order of Additional Session Judge.
12. 2006 YLR 1826 :
Section 489-F. No retrospective effect of this section, and accused could not have been tried for the offence under Sec. 489-F PPC.
13. PLD 2006 Lah 434(a):
Section 489-F. Provision of section489-F, Cr.P.C. is a valid and living law. (2005 P.Cr.L.J 1462).(Shabbar Raza Rizvi ).
14. 2006 YLR 1852 (b):
Section 489-F would only be relevant where in respect of a loan or non-fulfillment of an obligation. The cheque was issued and got dishonored the way mentioned under said section.
15. 2006 P.Cr.L.J. 187(a):
Quashing of F.I.R.
The cheque was issued before the section 489-F on the statute book. So no retrospective operation. F.I.R. Quashed.
17.PLD 2005 Lah 607 (b):
Rational behind the enactment of Sec.489-F PPC. Does not call for a mechanical action immediately when a cheque is returned by a banker, but it used only in the matter of payment of loan, business transactions, genuine disputes and contractual obligations may not constitute for the offence.
18.2005 SCMR 306:
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R. against the accused. Accused raised plea that the disputed entire amount was paid but from different account. F.I.R. was quashed.
19. 2005 P.Cr.L.J 144 :
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R against the accused but during investigation he had been found prima-facie innocent and F.I.R was quashed.
20.2006 P.Cr.L.J 522(a) :
Sec 497(2)
Sec 489-F. Bail Grant Of
Civil court was to determine as to whether the agreement in question was enforceable under the law or not—Cheque which was dishonored by the Bank on presentation had been issued by the first party as guarantee in favour of the second party---Second party was to recover the amount through the Court of law at the risk and cost of the first party---Case against accused, therefore, to all intents and purposes was of further inquiry within the meaning of S.497(2), Cr.P.C.—Offence under section 489-F P.P.C. did not fall within the prohibitory clause of S.497(1),Cr.P.C. and bail in such cases was a rule and refusal an exception—Accused being a lady was also entitled to grant of bail under first proviso to S.497,Cr.P.C,--Consideration for grant of bail before arrest and for grant of after arrest being altogether different, dismissal of the application of the accused for pre-arrest bail by the High Court earlier had no hearing on the merits of the present application for post-arrest bail---Accused was in jail for the last about two months--- Bail was allowed to accused in circumstances.
2007 P.Cr.L.J 100:
S.489-F-Bail. Grant of---
Accused issued a cheque as earnest money to complainant, which prima facie was not an obligation—Real intention of the parties with regard to the agreement would be determined by the Trial Court after recording evidence—Offence for which accused was charged ,did not fall under prohibited clause of Sec.497,Cr.P.C.—Accused was behind the bars and no more required for further investigation—To keep accused behind the bars for an indefinite period would not serve any use full purpose--- Accused was admitted to bail, in circumstances.
4). 2004 YLR 2675:
Sec.489-F P.P.C.
Bail Grant of.
Both accused and complainant were doing business with each other and issuance of some cheques could be in course of such business—even otherwise accused was not involved in a case falling within prohibitory clause of Sec.497. Cr.P.C. and grant of bail in such like cases was a rule and refusal was an exception and no exceptional circumstances existed in case for refusal of bail to him--- Nothing was to be recovered from accused and he could not be kept in jail for indefinite period---Accused was admitted to bail, in circumstances.
2005
1. 2007 P cr LJ 1492:
S.497 (5) Petition for cancellation of bail. (Bail cancels).
Bail granting order proceeded on mere technicalities and was conspicuous for the absence of any mention of respondent’s / accuser’s undertaking. Bail granted by Trial court offence under section 489-F P.P.C. did not attract the prohibitory clause of Sec 497(1) Cr P c ,but mere fact that the Prohibitory clause was not attracted, accused would not ipso facto become entitled to grant of bail.
2. 2007 P cr LJ 1064:
S.498 Petition for Pre-arrest bail (confirmed)
Offence under section 489-F PPC ,though was non-bailable ,but High Court could not ignore the fact that the offence did not fall within the ambit of Prohibitory clause of Sec 497 Cr PC , and in the absence of exceptional circumstances.
3. 2007 P cr LJ 997:
Quashing of F.I.R. (Dismissed).
Most important ingredient of offence under section 489-F PPC . being issuance of a Cheque dishonestly, and was bounced by the bank.
Plea of the petitioner is that .during the pendency of Civil suit, Criminal proceedings could not be initiated.
4. 2007 P cr LJ 388:
497(5) &498 Cr P C . Cancellation of bail .(Petition Accepted).
Petition to the extent of co-accused was dismissed because no role was attributed to the co-accused in the F.I.R. and investigation, Prosecutions whole evidence revolves around the accused who was main culprit. So the petition is accepted to the extent of main accused.
5. 2007 YLR 1264 :
S 497 Cr P C. (Admitted Post Arrest Bail)
F.I.R. Lodged with delay of four years against accused and co-accused .Complainant alleged in F.I.R that despite payment of amount to accused, no land was got allotted in his favour .and matter was reported to Punchayat accused gave to complainant cheques which were later on dishonored .That complainant himself was involved in case registered under Sec 489-F PPC .Sec 468,470, and 420 PPC had been added later. Pre-arrest bail of co-accused had been confirmed by High Court. Rule of consistency was attracted to the case of accused and admitted post arrest bail.
6. 2007 YLR 1277:
Sec 497 Cr P C (Bail admitted)
The amount of Cheque in question had not been mentioned in the F.I.R. at all. Cheque was issued about three months prior to reporting of matter to the police. Neither Cheque issued by accused nor its attested copy was available on record of the case and no Bank officer had been cited as witness.
7. 2007 YLR 1280:
Sec.497 Cr P C. (Bail granted)
Section 489-F PPC, Maximum punishment for offence under section 489-F PPC, not more than three years, Present case was not covered by prohibition contained in section 497 Cr PC. F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
8. 2007 YLR 1120.
Section 497 Cr P C. (Bail Granted ).
Section 489-F . Maximum Punishment not more than three years. Not fall in Prohibitory Clause of 497 Cr P C . F.I.R. did not indicate the purpose for which a huge amount was given to accused by the complainant and did not show any effort for seeking the return of said amount.
9. 2007 YLR 1354.
Section 497 Cr P C. (Bail Granted).
Section 489-F. Accused was in Jail since one year. Challan was submitted but no progress. Offence did not fall within prohibitory clause of section 497 Cr P C. ( Keeping accused behind the bars for an indefinite period of time would not serve or advance prosecution’s case, rather same would amount to punishment before conviction, which was not permissible under CRIMINAL JURISPRUDENCE ).
10. 2007 YLR 1020 (1) :
Section 498 Cr.P.C. ( Pre arrest bail was dismissed)
Section 489-F. Accused failed to appear before the court and had also not furnished surety bonds as directed by the court. Accused who stood nominated in F.I.R, had misused concession of Pre-arrest bail.Bail application was dismissed.
11.PLD 2006 Lah 752 (a) :
Purpose of 489-F was to curb the fraudulent or dishonest issuance of cheques to cause dishonest gain or to cause dishonest loss, before approaching the investigation agency or launching a Criminal Prosecution the payee could give a notice to the drawer after dishonor of cheque.
10. 2006 MLD 1184(b) :
High Court holding that civil suit and criminal proceedings were two different remedies provided by law having different consequences as in commission of an offence.
Exercise of right of filing of suit could not create any hindrance in way of lodging F.I.R. Under Section 489-F P.P.C.
11. 2006 P Cr L J.157, 2005 P Cr L J.684 , 2005 YLR 1565 :
Petitioner in his application filed under section 22-A Cr PC . for registration of case for offence under section 489-F PPC, against the person who issued a cheque in favour of the petitioner and was bounced. But the Additional Session Judge dismissed his application on ground that which had introduced offence under Section 489-F PPC had died its natural death, and honorable High Court set aside the order of Additional Session Judge.
12. 2006 YLR 1826 :
Section 489-F. No retrospective effect of this section, and accused could not have been tried for the offence under Sec. 489-F PPC.
13. PLD 2006 Lah 434(a):
Section 489-F. Provision of section489-F, Cr.P.C. is a valid and living law. (2005 P.Cr.L.J 1462).(Shabbar Raza Rizvi ).
14. 2006 YLR 1852 (b):
Section 489-F would only be relevant where in respect of a loan or non-fulfillment of an obligation. The cheque was issued and got dishonored the way mentioned under said section.
15. 2006 P.Cr.L.J. 187(a):
Quashing of F.I.R.
The cheque was issued before the section 489-F on the statute book. So no retrospective operation. F.I.R. Quashed.
17.PLD 2005 Lah 607 (b):
Rational behind the enactment of Sec.489-F PPC. Does not call for a mechanical action immediately when a cheque is returned by a banker, but it used only in the matter of payment of loan, business transactions, genuine disputes and contractual obligations may not constitute for the offence.
18.2005 SCMR 306:
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R. against the accused. Accused raised plea that the disputed entire amount was paid but from different account. F.I.R. was quashed.
19. 2005 P.Cr.L.J 144 :
Quashing of F.I.R.
Cheque was dishonored and complainant laughed an F.I.R against the accused but during investigation he had been found prima-facie innocent and F.I.R was quashed.
20.2006 P.Cr.L.J 522(a) :
Sec 497(2)
Sec 489-F. Bail Grant Of
Civil court was to determine as to whether the agreement in question was enforceable under the law or not—Cheque which was dishonored by the Bank on presentation had been issued by the first party as guarantee in favour of the second party---Second party was to recover the amount through the Court of law at the risk and cost of the first party---Case against accused, therefore, to all intents and purposes was of further inquiry within the meaning of S.497(2), Cr.P.C.—Offence under section 489-F P.P.C. did not fall within the prohibitory clause of S.497(1),Cr.P.C. and bail in such cases was a rule and refusal an exception—Accused being a lady was also entitled to grant of bail under first proviso to S.497,Cr.P.C,--Consideration for grant of bail before arrest and for grant of after arrest being altogether different, dismissal of the application of the accused for pre-arrest bail by the High Court earlier had no hearing on the merits of the present application for post-arrest bail---Accused was in jail for the last about two months--- Bail was allowed to accused in circumstances.
2007 P.Cr.L.J 100:
S.489-F-Bail. Grant of---
Accused issued a cheque as earnest money to complainant, which prima facie was not an obligation—Real intention of the parties with regard to the agreement would be determined by the Trial Court after recording evidence—Offence for which accused was charged ,did not fall under prohibited clause of Sec.497,Cr.P.C.—Accused was behind the bars and no more required for further investigation—To keep accused behind the bars for an indefinite period would not serve any use full purpose--- Accused was admitted to bail, in circumstances.
4). 2004 YLR 2675:
Sec.489-F P.P.C.
Bail Grant of.
Both accused and complainant were doing business with each other and issuance of some cheques could be in course of such business—even otherwise accused was not involved in a case falling within prohibitory clause of Sec.497. Cr.P.C. and grant of bail in such like cases was a rule and refusal was an exception and no exceptional circumstances existed in case for refusal of bail to him--- Nothing was to be recovered from accused and he could not be kept in jail for indefinite period---Accused was admitted to bail, in circumstances.
Trade Mark Cases
Citation Name : 2006 CLD 615 LAHORE-HIGH-COURT-LAHORE
Side Appellant : Hafiz MUHAMMAD RAMZAN through Legal Heirs
Side Opponent : Hafiz HABIB-UR-REHMAN
---Ss. 16, 21, 26, 57, 73 & 76---Registration of Trade Mark --Infringement of registered Trade Mark ---Suit against---Plaintiff, was engaged in manufacture of sweetmeat commonly known as 'Multani Sohan Halva' since before independence of the country and Trade Mark was also registered in his favour---Defendant, a former employee of plaintiff, after leaving service of plaintiff, started manufacturing and selling said product under words 'Hafiz Ka Multani Sohan Halva'---Goods were being sold by defendant in packets which bore same inscription, colour and design as registered design of plaintiff, which act of defendant constituted Infringement of plaintiffs registered Trade Mark /name---Plaintiff in his suit filed against Infringement of his registered Trade Mark , also sought restraining defendant from selling disputed goods in packets and other identical packets inscribed with name 'Hafi.z' design, colour and general get-up resembling in material particulars with said registered Trade Mark ---Trial Court after Comparing name of goods concerned, packet in which same were being sold, inscription, colour and design had arrived at the conclusion that public at large would be confused and misled---Wrapper used by defendant was absolutely similar to wrapper used by plaintiff----Appellate Court agreed with the opinion formed by Trial Court upon a comparison of said two sets of wrappers and tins in which goods were being sold---Word 'Hafiz' was adopted by plaintiff as registered proprietor in the year 1963 and worked thereon since then continuously and without any interruption---Defendant could not come out with the plea that word 'Hafiz' had become 'public juris'---Appeal filed by defendant against judgment of the Trial Court, was dismissed, in circumstances.
Citation Name : 2006 CLD 580 KARACHI-HIGH-COURT-SINDH
Side Appellant : TELEBRANDS CORPORATION through Attorney
Side Opponent : TELEBRANDS PAKISTAN (PVT.) LIMITED
--Ss. 16, 22 & 73---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 55---Suit for declaration---Infringement of Trade Mark ---Application for grant of injunction against defendants---Not only the defendants were using the plaintiffs Trade Mark but it was crucial to note that its products were identical to those developed/produced and Mark eted by the plaintiff and even the pictures and graphics being used by the defendants for depicting, advertising and Mark eting the said products were in fact copies of such photographs, descriptions and graphics as used by the plaintiff and as such by Mark eting and setting such counterfeit, the defendants were in fact confusing the buyers into believing that the defendants' products originated from the plaintiff and as such the defendants were clearly infringing upon the rights of the plaintiff and were not only illegally diverting the plaintiffs customers/business to them but were also putting the plaintiffs goodwill into jeopardy---High Court granted plaintiffs application under O.XXXIX, Rr.1 & 2, C.P.C. restraining the defendants from illegal use of the plaintiffs Trade Mark and advertising or Mark eting any goods under the said Trade Mark till the disposal of the suit and subject to final adjudication of the matter after recording evidence---Principles.
Citation Name : 2005 CLD 1414 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ADIDAS INTERNATIONAL B.V. through Attorney
Side Opponent : PRIMA SPORTS (PRIVATE) LIMITED through Director/Chief Executive/Manager
---Ss.21 &. 25---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for Infringement of Trade Mark ---Application for temporary injunction---Trial Court as interim relief restrained export of disputed goods---Trial Court thereafter firstly rejected plaint and then such application---Validity---high Court with consent of both parties set aside impugned judgment/decree and remanded case to Trial Court for its fresh decision with observations that injunctive order passed in appeal would remain operative for a period of one month in the interest of justice.
Citation Name : 2005 CLD 1805 KARACHI-HIGH-COURT-SINDH
Side Appellant : ROOMI ENTERPRISES (PVT.) LTD.
Side Opponent : STAFFORD MILLER LTD.
---Ss. 39, 28, 33 & 76---Trade Mark ---Agreement of user---Cancellation of---There can be only one Trade Mark , one source and one proprietor and cannot have two origins---Registered Trade Mark can be assigned with or without goodwill of the business concerned while the unregistered Trade Mark cannot be assigned except along with the goodwill of the business concerned---Appellant, in the present case, is not claiming assignment of Trade Mark to him nor he is claiming any right in it by way of its user for last many years, but his claim is based upon the "agreement of user", which, in any event, cannot be said or termed as assignment of Trade Mark to him---Appellant, in the present case, admittedly had licence to manufacture and sale of product of the registered Trade Mark of the respondent---Agreement of user of Trade Mark , executed pursuant to license to manufacture and sale, as per appellant's own showing was not registered as required under S.39 of the Trade Mark s Act, 1940---Appellant could not be said to be a registered user of the Trade Mark ---Even if said agreement of user was registered with the Registrar of Trade Mark s, such registration was for a specified period of time, and appellant could not be allowed to use the same without the consent of proprietor of Trade Mark either expressly or impliedly thereafter---Any use of such Trade Mark s, after the expiry of period of user, without the consent of proprietor of the Trade Mark , would make a case of passing off or Infringement against its user as the case may be---When the appellant himself was claiming right of user for the Trade Mark and right to manufacture it through the respondent, paying licence fee to him, appellant could not deny the right claimed by the respondent in respect of Trade Mark and the right of its proprietor---Appellant, in circumstances, had failed to establish any right to use the Trade Mark and/or manufacture the products under the Trade Mark , in the absence of a valid agreement of user and manufacture either with the respondent or with the proprietor---To allow the appellant to use the same, would tantamount to allow use of property owned by someone else without any lawful justification.
Citation Name : 2005 CLD 1546 KARACHI-HIGH-COURT-SINDH
Side Appellant : Messrs ADT SERVICES AG through Attorney
Side Opponent : Messrs ADT PAKISTAN (PTV.) LTD.
-S. 46---Civil Procedure (V of 1908), O.XXXIX, Rr.1 & 2---Copyright Ordinance (XXIV of 1962), S.9---Infringement of Trade Mark ---Application for grant of injunction---Provision of S.46, Trade Mark s Ordinance, 2001 recognizes right of action against any person for passing off goods of another person or services as services provided by another person or the remedies in respect thereof---Likewise in case of copyright, right or jurisdiction to restrain breach of trust or confidence cannot be defeated, where a person is shown to have obtained or claims copyright in breach of trust or confidence---Plaintiffs, in the present case, had been able to demonstrate that they had adopted the Trade Mark in question in Pakistan on 7-10-1997 when they first applied for its registration---Irrespective of the fact that Mark had not yet received registration, fact remained that plaintiffs had not only made out a case of "passing off' under S.46(2) of the Trade Mark s Ordinance, 2001 `and so also case of breach of trust and confidence in terms of S.9, Copyright Ordinance, 1962---Copyright cannot be used as a substitute or alternate for the Trade or service Mark s---High Court, while expressing anguish over the copy culture and growing tendency of piracy and misuse of copyright as a substitute to Trade Mark , suggested amendment in the Copyright Ordinance, 1962--- Defendant was not only morally, ethically, but legally committed not to appropriate property . comprising Trade and service Mark s vesting in the plaintiffs---Defendant, directly or indirectly could not be allowed to misappropriate the property of his master or Principal---If such tendency was encouraged, it would be devastating for the corporate and commercial Trade and practice in Pakistan and will deter foreign entrepreneurs to enter and make investments in Pakistan---Plaintiffs, in circumstances, had not only made out a prima facie but good case for the grant and confirmation of injunctive relief.
Citation Name : 2005 CLD 1235 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD YOUNUS SHAIKH
Side Opponent : COREX ENTERPRISES
--Ss. 46, 117 & 129---Civil Procedure Code (V of 1908), S. 79 & O. VII, R. 11---Constitution of Pakistan (1973), Art. 189---Suit for injunction against Infringement of Trade Mark , passing of; damages and account of profits-Plaintiff, impleaded the party alleged to be infringing the Trade Mark and the Collector of Customs (Appraisement) but failed to implead Federal Government in the suit---Validity---If a suit was filed against the Government, the suit should have been filed in the name of Federal Government as per provision of S.79, C.P.C.---Suit, in circumstances, without making the Federal Government or Provincial Government as party was not maintainable and was violative of S. 79, C.P.C. and Art. 189 of the Constitution---Suit . being hit by the said provisions of law, plaint was rejected under O. VII, R.11, C.P.C.
Citation Name : 2005 CLD 802 KARACHI-HIGH-COURT-SINDH
Side Appellant : FEDERAL MOGUL PRODUCTS, INC. U.S.A. through Authorized Signatory---Plaintiff
Side Opponent : TAHA INDUSTRIES
--Ss. 10(2) & 21---Copyright Ordinance (XXXIV of 1962) S. 39--- Specific Relief Act (I of 1877), S. 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Plaintiff had brought suit against defendants for restraining them from using then Trade Mark s 'Wagner', 'Lockheed', '21' and 'Sunburst Logo with specified colour scheme, design and get-up for packaging which was property of plaintiff since long plaintiff had claimed that use of Trade Mark and copyright plaintiff by defendants for their products of brake fluid was clear Infringement of their right and title and that defendants be restrained perpetually from using the same--Plaintiff together with plaint had also filed an application for temporary injunction restraining defendants from using the Trade Mark , Colour Scheme, design and get-up of packaging/label till the decision of the suit---Defendants diet not dispute use of Trade Mark in dispute and also did not deny registration of Trade Mark and copyright of plaintiff it Pakistan as claimed by plaintiff in suit, but had pleader' that they had adopted and used said Trade Mark since 1994 and had acquired proprietary rights therein-Defendants had not filed income returns relating to their business concern for the year 1994 and onward---Non filing returns had led to the inference adverse to the defendants---Use of Trade Mark s in question claimed by defendants was much later in point of time than its use and registration by plaintiff in Pakistan---Plaintiff, who had exclusive right to use the Trade Mark in question since long prior to defendants, had a strong prima facie case---In use of plaintiff's Trade Mark by defendants great possibility was misleading the purchasers and they could be deceived-- -where use of Trade Mark by defendants had potential to affect the image and goodwill acquired by plaintiffs, balance of convenience would be on the side of plaintiff as it would suffer irreparable loss in case temporary injunction prayed for by it was refused---Plaintiff having made out a case for temporary injunction same was granted till decision of suit.
Citation Name : 2004 CLD 1383 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : SOCIETE DES PRODUITS NESTLE S.A.
Side Opponent : FOOD INTERNATIONAL (PVT.) LTD.
----Ss.8(a), 10(1), 20 & 21---Specific Relief Act (1 of 1877), S.54---Right to use Trade Mark ---Misuse of registered Trade Mark ---Plaintiff had claimed that he was the owner of registered Trade Mark "MILO" which was registered in his favour since 1950 in relation to food products etc. and registered number was also given to him---Plaintiff had also claimed that his goods under Trade Mark "MILO" were being offered and advertised in Pakistan for about last 20 year and goods produced under said Trade Mark were recognized by general public to be the products of plaintiff who had exclusive right to said Trade Mark ---Plaintiff had alleged that defendant was indulging in producing and Mark eting branded `Bread' in the name of "MILO" which was patent Infringement of right of plaintiff---Contention of defendant that `Bread' was not an item produced by plaintiff and that products of plaintiff were different than the product of defendant, was repelled---Contention of defendant that word "MILO" was not an invention of plaintiff, but was a generic name signifying a kind of grain, was also of no substance because `Bread' produced by defendant was not the product of Milo grains, but was made of wheat---Word `MILO'; with reference to grain, could not be made justification, for the use of registered Trade Mark of plaintiff ---of Milo grain for products of bread, had been admitted by the defendant and it was not a case of violating the colour scheme or get-up of plaintiff, but was virtually a misuse of registered Trade Mark `MILO' which obviously was exclusive ownership of the plaintiff-Registered Trade Mark of plaintiff had been infringed and if such Infringement was allowed to be continued, protection granted to plaintiff under Trade Mark s Act, 1940 would become ineffective---Impugned judgment and decree of Trial Court whereby suit filed by plaintiff was dismissed, being the result of speculative, artificial reasons and based on misinterpretation of evidence and misconception of law, were set aside and suit filed by plaintiff was decreed.
Citation Name : 2004 CLD 1383 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : SOCIETE DES PRODUITS NESTLE S.A.
Side Opponent : FOOD INTERNATIONAL (PVT.) LTD.
--Ss.8(a), 10(1), 20 & 21---Specific Relief Act (1 of 1877), S.54---Right to use Trade Mark ---Misuse of registered Trade Mark ---Plaintiff had claimed that he was the owner of registered Trade Mark "MILO" which was registered in his favour since 1950 in relation to food products etc. and registered number was also given to him---Plaintiff had also claimed that his goods under Trade Mark "MILO" were being offered and advertised in Pakistan for about last 20 year and goods produced under said Trade Mark were recognized by general public to be the products of plaintiff who had exclusive right to said Trade Mark ---Plaintiff had alleged that defendant was indulging in producing and Mark eting branded `Bread' in the name of "MILO" which was patent Infringement of right of plaintiff---Contention of defendant that `Bread' was not an item produced by plaintiff and that products of plaintiff were different than the product of defendant, was repelled---Contention of defendant that word "MILO" was not an invention of plaintiff, but was a generic name signifying a kind of grain, was also of no substance because `Bread' produced by defendant was not the product of Milo grains, but was made of wheat---Word `MILO'; with reference to grain, could not be made justification, for the use of registered Trade Mark of plaintiff ---of Milo grain for products of bread, had been admitted by the defendant and it was not a case of violating the colour scheme or get-up of plaintiff, but was virtually a misuse of registered Trade Mark `MILO' which obviously was exclusive ownership of the plaintiff-Registered Trade Mark of plaintiff had been infringed and if such Infringement was allowed to be continued, protection granted to plaintiff under Trade Mark s Act, 1940 would become ineffective---Impugned judgment and decree of Trial Court whereby suit filed by plaintiff was dismissed, being the result of speculative, artificial reasons and based on misinterpretation of evidence and misconception of law, were set aside and suit filed by plaintiff was decreed.
Citation Name : 2004 CLD 516 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD JAHANGIR
Side Opponent : HASSAN QAISER
----Ss. 73, 21, 25 & 23---Copyright Ordinance (XXXIV of 1962), S.39---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.151---Suit ,for Infringement of Trade Mark and copyright with the prayer that the defendants be stopped from passing on their goods as goods of the plaintiff--Admitted position was that the plaintiffs were holders of the Trade Mark and copyright registration in their favour, while the defendants were without these and the main ground urged by the defendants was that the plaintiffs had obtained the registration of the Trade Mark and copyright by suppression of true facts and defendants had been using the Trade Mark in question since long, whereas the plaintiffs had been using different other names while submitting tax returns etc.---Application of plaintiff under O.XXXIX, Rr.1 & 2 read with S.151, C.P.C. was granted by the District Judge and defendants were restrained from using of the Trade Mark in question till final decision of the suit ---Validity--Fact that defendants had been using the Trade Mark in question before the registration of the Trade Mark and thus were protected. under S.25 of the Trade Mark s Act, 1940 would have to be established during the course of evidence---Plaintiffs were the proprietors of the Trade Mark and a prima facie case was established in their favour--High Court having not found any error with the basic findings of the District Judge while disposing of the application for injunction, declined to interfere---If the plaintiffs had obtained registration of Trade Mark and copyright by suppression of true facts, the matter be brought to the notice of the Registrar of Trade Mark s and objections be filed before him in accordance with law---Until that was done, the plaintiffs would. remain the proprietors of the Trade Mark having a vested right---Finding no merits in the case, High Court dismissed the appeal with the observation that the present order of the High Court shall have no bearing, in case, any of the parties approached the Registrar, Trade Mark s for adjudication nor on the ultimate decision at his end.
Side Appellant : Hafiz MUHAMMAD RAMZAN through Legal Heirs
Side Opponent : Hafiz HABIB-UR-REHMAN
---Ss. 16, 21, 26, 57, 73 & 76---Registration of Trade Mark --Infringement of registered Trade Mark ---Suit against---Plaintiff, was engaged in manufacture of sweetmeat commonly known as 'Multani Sohan Halva' since before independence of the country and Trade Mark was also registered in his favour---Defendant, a former employee of plaintiff, after leaving service of plaintiff, started manufacturing and selling said product under words 'Hafiz Ka Multani Sohan Halva'---Goods were being sold by defendant in packets which bore same inscription, colour and design as registered design of plaintiff, which act of defendant constituted Infringement of plaintiffs registered Trade Mark /name---Plaintiff in his suit filed against Infringement of his registered Trade Mark , also sought restraining defendant from selling disputed goods in packets and other identical packets inscribed with name 'Hafi.z' design, colour and general get-up resembling in material particulars with said registered Trade Mark ---Trial Court after Comparing name of goods concerned, packet in which same were being sold, inscription, colour and design had arrived at the conclusion that public at large would be confused and misled---Wrapper used by defendant was absolutely similar to wrapper used by plaintiff----Appellate Court agreed with the opinion formed by Trial Court upon a comparison of said two sets of wrappers and tins in which goods were being sold---Word 'Hafiz' was adopted by plaintiff as registered proprietor in the year 1963 and worked thereon since then continuously and without any interruption---Defendant could not come out with the plea that word 'Hafiz' had become 'public juris'---Appeal filed by defendant against judgment of the Trial Court, was dismissed, in circumstances.
Citation Name : 2006 CLD 580 KARACHI-HIGH-COURT-SINDH
Side Appellant : TELEBRANDS CORPORATION through Attorney
Side Opponent : TELEBRANDS PAKISTAN (PVT.) LIMITED
--Ss. 16, 22 & 73---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Specific Relief Act (I of 1877), Ss.42 & 55---Suit for declaration---Infringement of Trade Mark ---Application for grant of injunction against defendants---Not only the defendants were using the plaintiffs Trade Mark but it was crucial to note that its products were identical to those developed/produced and Mark eted by the plaintiff and even the pictures and graphics being used by the defendants for depicting, advertising and Mark eting the said products were in fact copies of such photographs, descriptions and graphics as used by the plaintiff and as such by Mark eting and setting such counterfeit, the defendants were in fact confusing the buyers into believing that the defendants' products originated from the plaintiff and as such the defendants were clearly infringing upon the rights of the plaintiff and were not only illegally diverting the plaintiffs customers/business to them but were also putting the plaintiffs goodwill into jeopardy---High Court granted plaintiffs application under O.XXXIX, Rr.1 & 2, C.P.C. restraining the defendants from illegal use of the plaintiffs Trade Mark and advertising or Mark eting any goods under the said Trade Mark till the disposal of the suit and subject to final adjudication of the matter after recording evidence---Principles.
Citation Name : 2005 CLD 1414 LAHORE-HIGH-COURT-LAHORE
Side Appellant : ADIDAS INTERNATIONAL B.V. through Attorney
Side Opponent : PRIMA SPORTS (PRIVATE) LIMITED through Director/Chief Executive/Manager
---Ss.21 &. 25---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2---Suit for Infringement of Trade Mark ---Application for temporary injunction---Trial Court as interim relief restrained export of disputed goods---Trial Court thereafter firstly rejected plaint and then such application---Validity---high Court with consent of both parties set aside impugned judgment/decree and remanded case to Trial Court for its fresh decision with observations that injunctive order passed in appeal would remain operative for a period of one month in the interest of justice.
Citation Name : 2005 CLD 1805 KARACHI-HIGH-COURT-SINDH
Side Appellant : ROOMI ENTERPRISES (PVT.) LTD.
Side Opponent : STAFFORD MILLER LTD.
---Ss. 39, 28, 33 & 76---Trade Mark ---Agreement of user---Cancellation of---There can be only one Trade Mark , one source and one proprietor and cannot have two origins---Registered Trade Mark can be assigned with or without goodwill of the business concerned while the unregistered Trade Mark cannot be assigned except along with the goodwill of the business concerned---Appellant, in the present case, is not claiming assignment of Trade Mark to him nor he is claiming any right in it by way of its user for last many years, but his claim is based upon the "agreement of user", which, in any event, cannot be said or termed as assignment of Trade Mark to him---Appellant, in the present case, admittedly had licence to manufacture and sale of product of the registered Trade Mark of the respondent---Agreement of user of Trade Mark , executed pursuant to license to manufacture and sale, as per appellant's own showing was not registered as required under S.39 of the Trade Mark s Act, 1940---Appellant could not be said to be a registered user of the Trade Mark ---Even if said agreement of user was registered with the Registrar of Trade Mark s, such registration was for a specified period of time, and appellant could not be allowed to use the same without the consent of proprietor of Trade Mark either expressly or impliedly thereafter---Any use of such Trade Mark s, after the expiry of period of user, without the consent of proprietor of the Trade Mark , would make a case of passing off or Infringement against its user as the case may be---When the appellant himself was claiming right of user for the Trade Mark and right to manufacture it through the respondent, paying licence fee to him, appellant could not deny the right claimed by the respondent in respect of Trade Mark and the right of its proprietor---Appellant, in circumstances, had failed to establish any right to use the Trade Mark and/or manufacture the products under the Trade Mark , in the absence of a valid agreement of user and manufacture either with the respondent or with the proprietor---To allow the appellant to use the same, would tantamount to allow use of property owned by someone else without any lawful justification.
Citation Name : 2005 CLD 1546 KARACHI-HIGH-COURT-SINDH
Side Appellant : Messrs ADT SERVICES AG through Attorney
Side Opponent : Messrs ADT PAKISTAN (PTV.) LTD.
-S. 46---Civil Procedure (V of 1908), O.XXXIX, Rr.1 & 2---Copyright Ordinance (XXIV of 1962), S.9---Infringement of Trade Mark ---Application for grant of injunction---Provision of S.46, Trade Mark s Ordinance, 2001 recognizes right of action against any person for passing off goods of another person or services as services provided by another person or the remedies in respect thereof---Likewise in case of copyright, right or jurisdiction to restrain breach of trust or confidence cannot be defeated, where a person is shown to have obtained or claims copyright in breach of trust or confidence---Plaintiffs, in the present case, had been able to demonstrate that they had adopted the Trade Mark in question in Pakistan on 7-10-1997 when they first applied for its registration---Irrespective of the fact that Mark had not yet received registration, fact remained that plaintiffs had not only made out a case of "passing off' under S.46(2) of the Trade Mark s Ordinance, 2001 `and so also case of breach of trust and confidence in terms of S.9, Copyright Ordinance, 1962---Copyright cannot be used as a substitute or alternate for the Trade or service Mark s---High Court, while expressing anguish over the copy culture and growing tendency of piracy and misuse of copyright as a substitute to Trade Mark , suggested amendment in the Copyright Ordinance, 1962--- Defendant was not only morally, ethically, but legally committed not to appropriate property . comprising Trade and service Mark s vesting in the plaintiffs---Defendant, directly or indirectly could not be allowed to misappropriate the property of his master or Principal---If such tendency was encouraged, it would be devastating for the corporate and commercial Trade and practice in Pakistan and will deter foreign entrepreneurs to enter and make investments in Pakistan---Plaintiffs, in circumstances, had not only made out a prima facie but good case for the grant and confirmation of injunctive relief.
Citation Name : 2005 CLD 1235 KARACHI-HIGH-COURT-SINDH
Side Appellant : MUHAMMAD YOUNUS SHAIKH
Side Opponent : COREX ENTERPRISES
--Ss. 46, 117 & 129---Civil Procedure Code (V of 1908), S. 79 & O. VII, R. 11---Constitution of Pakistan (1973), Art. 189---Suit for injunction against Infringement of Trade Mark , passing of; damages and account of profits-Plaintiff, impleaded the party alleged to be infringing the Trade Mark and the Collector of Customs (Appraisement) but failed to implead Federal Government in the suit---Validity---If a suit was filed against the Government, the suit should have been filed in the name of Federal Government as per provision of S.79, C.P.C.---Suit, in circumstances, without making the Federal Government or Provincial Government as party was not maintainable and was violative of S. 79, C.P.C. and Art. 189 of the Constitution---Suit . being hit by the said provisions of law, plaint was rejected under O. VII, R.11, C.P.C.
Citation Name : 2005 CLD 802 KARACHI-HIGH-COURT-SINDH
Side Appellant : FEDERAL MOGUL PRODUCTS, INC. U.S.A. through Authorized Signatory---Plaintiff
Side Opponent : TAHA INDUSTRIES
--Ss. 10(2) & 21---Copyright Ordinance (XXXIV of 1962) S. 39--- Specific Relief Act (I of 1877), S. 54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Plaintiff had brought suit against defendants for restraining them from using then Trade Mark s 'Wagner', 'Lockheed', '21' and 'Sunburst Logo with specified colour scheme, design and get-up for packaging which was property of plaintiff since long plaintiff had claimed that use of Trade Mark and copyright plaintiff by defendants for their products of brake fluid was clear Infringement of their right and title and that defendants be restrained perpetually from using the same--Plaintiff together with plaint had also filed an application for temporary injunction restraining defendants from using the Trade Mark , Colour Scheme, design and get-up of packaging/label till the decision of the suit---Defendants diet not dispute use of Trade Mark in dispute and also did not deny registration of Trade Mark and copyright of plaintiff it Pakistan as claimed by plaintiff in suit, but had pleader' that they had adopted and used said Trade Mark since 1994 and had acquired proprietary rights therein-Defendants had not filed income returns relating to their business concern for the year 1994 and onward---Non filing returns had led to the inference adverse to the defendants---Use of Trade Mark s in question claimed by defendants was much later in point of time than its use and registration by plaintiff in Pakistan---Plaintiff, who had exclusive right to use the Trade Mark in question since long prior to defendants, had a strong prima facie case---In use of plaintiff's Trade Mark by defendants great possibility was misleading the purchasers and they could be deceived-- -where use of Trade Mark by defendants had potential to affect the image and goodwill acquired by plaintiffs, balance of convenience would be on the side of plaintiff as it would suffer irreparable loss in case temporary injunction prayed for by it was refused---Plaintiff having made out a case for temporary injunction same was granted till decision of suit.
Citation Name : 2004 CLD 1383 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : SOCIETE DES PRODUITS NESTLE S.A.
Side Opponent : FOOD INTERNATIONAL (PVT.) LTD.
----Ss.8(a), 10(1), 20 & 21---Specific Relief Act (1 of 1877), S.54---Right to use Trade Mark ---Misuse of registered Trade Mark ---Plaintiff had claimed that he was the owner of registered Trade Mark "MILO" which was registered in his favour since 1950 in relation to food products etc. and registered number was also given to him---Plaintiff had also claimed that his goods under Trade Mark "MILO" were being offered and advertised in Pakistan for about last 20 year and goods produced under said Trade Mark were recognized by general public to be the products of plaintiff who had exclusive right to said Trade Mark ---Plaintiff had alleged that defendant was indulging in producing and Mark eting branded `Bread' in the name of "MILO" which was patent Infringement of right of plaintiff---Contention of defendant that `Bread' was not an item produced by plaintiff and that products of plaintiff were different than the product of defendant, was repelled---Contention of defendant that word "MILO" was not an invention of plaintiff, but was a generic name signifying a kind of grain, was also of no substance because `Bread' produced by defendant was not the product of Milo grains, but was made of wheat---Word `MILO'; with reference to grain, could not be made justification, for the use of registered Trade Mark of plaintiff ---of Milo grain for products of bread, had been admitted by the defendant and it was not a case of violating the colour scheme or get-up of plaintiff, but was virtually a misuse of registered Trade Mark `MILO' which obviously was exclusive ownership of the plaintiff-Registered Trade Mark of plaintiff had been infringed and if such Infringement was allowed to be continued, protection granted to plaintiff under Trade Mark s Act, 1940 would become ineffective---Impugned judgment and decree of Trial Court whereby suit filed by plaintiff was dismissed, being the result of speculative, artificial reasons and based on misinterpretation of evidence and misconception of law, were set aside and suit filed by plaintiff was decreed.
Citation Name : 2004 CLD 1383 PESHAWAR-HIGH-COURT-NWFP
Side Appellant : SOCIETE DES PRODUITS NESTLE S.A.
Side Opponent : FOOD INTERNATIONAL (PVT.) LTD.
--Ss.8(a), 10(1), 20 & 21---Specific Relief Act (1 of 1877), S.54---Right to use Trade Mark ---Misuse of registered Trade Mark ---Plaintiff had claimed that he was the owner of registered Trade Mark "MILO" which was registered in his favour since 1950 in relation to food products etc. and registered number was also given to him---Plaintiff had also claimed that his goods under Trade Mark "MILO" were being offered and advertised in Pakistan for about last 20 year and goods produced under said Trade Mark were recognized by general public to be the products of plaintiff who had exclusive right to said Trade Mark ---Plaintiff had alleged that defendant was indulging in producing and Mark eting branded `Bread' in the name of "MILO" which was patent Infringement of right of plaintiff---Contention of defendant that `Bread' was not an item produced by plaintiff and that products of plaintiff were different than the product of defendant, was repelled---Contention of defendant that word "MILO" was not an invention of plaintiff, but was a generic name signifying a kind of grain, was also of no substance because `Bread' produced by defendant was not the product of Milo grains, but was made of wheat---Word `MILO'; with reference to grain, could not be made justification, for the use of registered Trade Mark of plaintiff ---of Milo grain for products of bread, had been admitted by the defendant and it was not a case of violating the colour scheme or get-up of plaintiff, but was virtually a misuse of registered Trade Mark `MILO' which obviously was exclusive ownership of the plaintiff-Registered Trade Mark of plaintiff had been infringed and if such Infringement was allowed to be continued, protection granted to plaintiff under Trade Mark s Act, 1940 would become ineffective---Impugned judgment and decree of Trial Court whereby suit filed by plaintiff was dismissed, being the result of speculative, artificial reasons and based on misinterpretation of evidence and misconception of law, were set aside and suit filed by plaintiff was decreed.
Citation Name : 2004 CLD 516 LAHORE-HIGH-COURT-LAHORE
Side Appellant : MUHAMMAD JAHANGIR
Side Opponent : HASSAN QAISER
----Ss. 73, 21, 25 & 23---Copyright Ordinance (XXXIV of 1962), S.39---Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & S.151---Suit ,for Infringement of Trade Mark and copyright with the prayer that the defendants be stopped from passing on their goods as goods of the plaintiff--Admitted position was that the plaintiffs were holders of the Trade Mark and copyright registration in their favour, while the defendants were without these and the main ground urged by the defendants was that the plaintiffs had obtained the registration of the Trade Mark and copyright by suppression of true facts and defendants had been using the Trade Mark in question since long, whereas the plaintiffs had been using different other names while submitting tax returns etc.---Application of plaintiff under O.XXXIX, Rr.1 & 2 read with S.151, C.P.C. was granted by the District Judge and defendants were restrained from using of the Trade Mark in question till final decision of the suit ---Validity--Fact that defendants had been using the Trade Mark in question before the registration of the Trade Mark and thus were protected. under S.25 of the Trade Mark s Act, 1940 would have to be established during the course of evidence---Plaintiffs were the proprietors of the Trade Mark and a prima facie case was established in their favour--High Court having not found any error with the basic findings of the District Judge while disposing of the application for injunction, declined to interfere---If the plaintiffs had obtained registration of Trade Mark and copyright by suppression of true facts, the matter be brought to the notice of the Registrar of Trade Mark s and objections be filed before him in accordance with law---Until that was done, the plaintiffs would. remain the proprietors of the Trade Mark having a vested right---Finding no merits in the case, High Court dismissed the appeal with the observation that the present order of the High Court shall have no bearing, in case, any of the parties approached the Registrar, Trade Mark s for adjudication nor on the ultimate decision at his end.
Nikah Nama (English)
Nikah Nama (Marriage Certificate)
FORM NO. 2
(See Rule No. 8, 10)
PRESCRIBED FORM ACCORDING TO RULE NO.8 AND 10 OF THE MUSLIM FAMILY ORDINANCE ISSUED IN 1961, (8, 1961).
1. Name of the Ward__________160_______ Town/Union _______Samnabad____ Tehsil/Thana ___Lahore____ and District _______Lahore________ in which the marriage took place.
2. Name of bridegroom and his father with their respective residences:
____Syed Ahmad Mobin Gillani son of Syed Abid Hussain Gillani 596-A, Ghulam Muhammadabad Faisalbad._____
_______________
3. Age of the bridegroom.
_________________37 Years ________________
4. Name of bride and her father with their respective residences:
_____Rifat Iqbal, Daughter of Muhammad Iqbal 140 Usman Ghani Street, Alhamd Colony Allama Iqbal Town Lahore. Presently Resides Bank Colony Samanabad.
5. Whether the bride is maiden, a widow or a divorcee:
____________________Maiden_______________________
6. Age of bride.
___________________37 Years_____________________
7. Name of the Vakil (Representative), if any, appointed by the bride, his father’s name and his residence:
___Faiz Illahi Son of Ghulam Jillani Resident of 396-Nizam Block, Allama Iqbal Town, Lahore.
8. Names of the witnesses to the appointment of the bride’s Vakil (Representative) with their Father’s names, their residences and their relationships with the bride:
_Muhammad Shahzad Amin, Son of Muhammad Amin, 78/C Canal Bank Extension, MughalPura, Lahore.
9. Name of the Vakil (Representative), if any, appointed by the bridegroom, his father’s name and his residence:
___________Bridegroom is present in person___________
10. Names of the witnesses to the appointment of the bridegroom’s Vakil (Representative) with their Father’s names and their residences:
(1)_______________________________________________
__________________________________________________
__________________________________________________
(2)_______________________________________________
_________________________________________________
__________________________________________________
11. Names of the witnesses to the marriage, their father’s names and their residences:
(1)_Sheikh Muhammad Talab, Son of Sheikh Muhammad Ashraf, Street No. 19, House No. 24, Canal Park, Gulberg-II, Lahore._
(2)_Abdul Majeed Son of Muhammad Din, Saeed Park, Shahdhara. __
12. Date on which the marriage was contracted:
____________________04.11.2000_____________________
13. Amount of dower:
_______________Rupees Two Lacs only_______________
14. The amount of Mahar Moajjal (Prompt Dower) and the amount of Mahar Mowajjal (Deferred Dower):
__________________On Demand_____________________
15. Whether any portion of the dower was paid at the time of marriage. If so, how much:
_____________________________________________
16. Whether any property was given in lieu of the whole or any portion of the dower, with specifications of the same and its valuation agreed to between the parties:
_____________________________________________
17. Special condition(s) if any:
__Rupees Three Thousand as Pocket money will be fixed _
18. Whether the husband has delegated the power of divorce to the wife. If so, what conditions:
_______________________No._______________________
19. Whether the husband’s right of divorce is in any way curtailed:
_______________________No._______________________
20. Whether any documents was drawn up at the time of marriage relating to dower, maintenance, etc. If so, contents thereof in brief:
_______________________No._______________________
21. Whether the bridegroom has any existing wife, and, if so, whether he has secured the permission of the Arbitration Council under the Muslim Family Laws Ordinance, 1961, to contract another marriage:
_______________________No._______________________
22. Number and date of the communication conveying to the bridegroom the permission of the Arbitration Council to contract another marriage:
________________________No____________________
23. Name and address of the person by whom the marriage was solemnized:
__Karam Din, Son of Chanan, Samanabad, Lahore_____
24. Date of registration of marriage
____________________6.11.2000_____________________
25. Registration fee paid
__________________________________________________
Signature of bridegroom or his Vakil (Representative)
Signature of the witnesses to the appointment of the bridegroom’s Vakil (Representative)
_______________________________________________
1.______________________________________
2.______________________________________
Signature of the bride
____________________________
Signature of the Vakil
(Representative) of the bride
Signature of the witnesses to the appointment of the bride’s Vakil (Representative)
______Sd/-___________________________________
1.____________________________________
2._____________________________________
Signature of the witnesses to the marriage
1.___Sd/-____________________________
2.____Sd/-_________________________________
Signature of the person who solemnized the marriage
______________________________________
Signature and seal of the Nikah Registrar
(Marriage Registrar)
_________________Sd/- & Seal ______________________ _________________________________________________
FORM NO. 2
(See Rule No. 8, 10)
PRESCRIBED FORM ACCORDING TO RULE NO.8 AND 10 OF THE MUSLIM FAMILY ORDINANCE ISSUED IN 1961, (8, 1961).
1. Name of the Ward__________160_______ Town/Union _______Samnabad____ Tehsil/Thana ___Lahore____ and District _______Lahore________ in which the marriage took place.
2. Name of bridegroom and his father with their respective residences:
____Syed Ahmad Mobin Gillani son of Syed Abid Hussain Gillani 596-A, Ghulam Muhammadabad Faisalbad._____
_______________
3. Age of the bridegroom.
_________________37 Years ________________
4. Name of bride and her father with their respective residences:
_____Rifat Iqbal, Daughter of Muhammad Iqbal 140 Usman Ghani Street, Alhamd Colony Allama Iqbal Town Lahore. Presently Resides Bank Colony Samanabad.
5. Whether the bride is maiden, a widow or a divorcee:
____________________Maiden_______________________
6. Age of bride.
___________________37 Years_____________________
7. Name of the Vakil (Representative), if any, appointed by the bride, his father’s name and his residence:
___Faiz Illahi Son of Ghulam Jillani Resident of 396-Nizam Block, Allama Iqbal Town, Lahore.
8. Names of the witnesses to the appointment of the bride’s Vakil (Representative) with their Father’s names, their residences and their relationships with the bride:
_Muhammad Shahzad Amin, Son of Muhammad Amin, 78/C Canal Bank Extension, MughalPura, Lahore.
9. Name of the Vakil (Representative), if any, appointed by the bridegroom, his father’s name and his residence:
___________Bridegroom is present in person___________
10. Names of the witnesses to the appointment of the bridegroom’s Vakil (Representative) with their Father’s names and their residences:
(1)_______________________________________________
__________________________________________________
__________________________________________________
(2)_______________________________________________
_________________________________________________
__________________________________________________
11. Names of the witnesses to the marriage, their father’s names and their residences:
(1)_Sheikh Muhammad Talab, Son of Sheikh Muhammad Ashraf, Street No. 19, House No. 24, Canal Park, Gulberg-II, Lahore._
(2)_Abdul Majeed Son of Muhammad Din, Saeed Park, Shahdhara. __
12. Date on which the marriage was contracted:
____________________04.11.2000_____________________
13. Amount of dower:
_______________Rupees Two Lacs only_______________
14. The amount of Mahar Moajjal (Prompt Dower) and the amount of Mahar Mowajjal (Deferred Dower):
__________________On Demand_____________________
15. Whether any portion of the dower was paid at the time of marriage. If so, how much:
_____________________________________________
16. Whether any property was given in lieu of the whole or any portion of the dower, with specifications of the same and its valuation agreed to between the parties:
_____________________________________________
17. Special condition(s) if any:
__Rupees Three Thousand as Pocket money will be fixed _
18. Whether the husband has delegated the power of divorce to the wife. If so, what conditions:
_______________________No._______________________
19. Whether the husband’s right of divorce is in any way curtailed:
_______________________No._______________________
20. Whether any documents was drawn up at the time of marriage relating to dower, maintenance, etc. If so, contents thereof in brief:
_______________________No._______________________
21. Whether the bridegroom has any existing wife, and, if so, whether he has secured the permission of the Arbitration Council under the Muslim Family Laws Ordinance, 1961, to contract another marriage:
_______________________No._______________________
22. Number and date of the communication conveying to the bridegroom the permission of the Arbitration Council to contract another marriage:
________________________No____________________
23. Name and address of the person by whom the marriage was solemnized:
__Karam Din, Son of Chanan, Samanabad, Lahore_____
24. Date of registration of marriage
____________________6.11.2000_____________________
25. Registration fee paid
__________________________________________________
Signature of bridegroom or his Vakil (Representative)
Signature of the witnesses to the appointment of the bridegroom’s Vakil (Representative)
_______________________________________________
1.______________________________________
2.______________________________________
Signature of the bride
____________________________
Signature of the Vakil
(Representative) of the bride
Signature of the witnesses to the appointment of the bride’s Vakil (Representative)
______Sd/-___________________________________
1.____________________________________
2._____________________________________
Signature of the witnesses to the marriage
1.___Sd/-____________________________
2.____Sd/-_________________________________
Signature of the person who solemnized the marriage
______________________________________
Signature and seal of the Nikah Registrar
(Marriage Registrar)
_________________Sd/- & Seal ______________________ _________________________________________________
RULE OF LAW
RULE OF LAW
2000 YLR 1840(c)
2001 CLC 9(c)
2003 YLR 2126(a)
2003 YLR 1957(a)
2000 SCMR 1137(a)
2002 PCr.LJ 1765(k)
2004 YLR 1500(a)
2003 SCMR 708(e)
2003 CLD 131(a)
2003 SCMR 1535(a, b)
2003 MLD 1306(c)
2002 PLC (C.S.) 1113(d)
PLD 2004 SC 313(a)
PLD 2002 LAH. 67(b)
PLD 1991 SC 531
1999 PLC(C.S.) 287(b)
1996 PCr.LJ 1322(b)
1992 PLC(C.S.)117(c)
PLD 1999 SC 46(c,d,e)
1997 CLC 360(a)
1990 CLC 1683(a)
1995 CLC 1578(a)
1997 MLD 2581(a)
PLD 1996 SC 229(b)
2000 YLR 1840(c)
2001 CLC 9(c)
2003 YLR 2126(a)
2003 YLR 1957(a)
2000 SCMR 1137(a)
2002 PCr.LJ 1765(k)
2004 YLR 1500(a)
2003 SCMR 708(e)
2003 CLD 131(a)
2003 SCMR 1535(a, b)
2003 MLD 1306(c)
2002 PLC (C.S.) 1113(d)
PLD 2004 SC 313(a)
PLD 2002 LAH. 67(b)
PLD 1991 SC 531
1999 PLC(C.S.) 287(b)
1996 PCr.LJ 1322(b)
1992 PLC(C.S.)117(c)
PLD 1999 SC 46(c,d,e)
1997 CLC 360(a)
1990 CLC 1683(a)
1995 CLC 1578(a)
1997 MLD 2581(a)
PLD 1996 SC 229(b)
Theft Case Law
PLJ 2009 Cr.C 328
Present to: Kazim Ali Malik and Saif-ur-Rehman
EJAZ and 6 others VersusSTATE and another
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 281, 285, 291, 293 & 427--Anti-Terrorism Act, 1997, S. 7--Maintenance of Public Order--S. 16--Bail, admitted--Directly approached High Court for bail--Bail was refused to entertain for want of jurisdiction--Bailable provision of law--Mens rea is essence of each and every offence--Prima facie, missing--Held: Intention of the prosecution was not to spread panic or to disrupt communication system or to overawe Police Force--Incidents of theft in the area tempted the petitioners and co-accused to lodge protest in order to convey their annoyance to superior officers of local police--Allegation of terrorism against the petitioners was open to further inquiry and serious doubt--Petitioners were behind the bars and were no more required for investigation--Bail was admitted.
Judgement Result: Petition allowed.
PLJ 2009 FSC 7
Present to: Syed Afzal Haider
SAEED alias GULDANG and others VersusSTATE etc.
----S. 17(3)--Pakistan Penal Code, (XLV of 1860), S. 392--Conviction & sentence--Challenge to--Appreciation of evidence--No finding of trial Court on the basic ingredient of robbery--Complainant neither in his statement before the police at the time or recording the crime report nor even at the time or deposing before trial either alleged element of restrain, fear of death or even instant hurt against the appellants--Element of theft itself being doubtful and the element of force or restrain or fear of injury not available on record--Held: Whereby appellants were convicted for the offence of robbery--Prosecution story does not appear to be consistent and convincing--In order to bring home the guilt to the accused the prosecution must establish the case beyond all reasonable doubts--Further held: Freedom of a citizen cannot be jeopardized on conjectures an surmises--Pushing people behind the bars also means deprivation of the means of livelihood--Right of movement, the right to earn and the conjugal rights can be suspended only on solid grounds--There are certainly doubts in the instant case and extending benefit of doubts to the appellant.
Judgement Result: Accused acquitted.
PLJ 2009 Lahore High Court 669
Present to: Pervaiz Inayat Malik
MUHAMMAD SHAFIQUE VersusSHO
----Art. 199--Pakistan Penal Code, (XLV of 1860)--Ss. 411 & 109--Forest Act, 1927, Ss. 62 & 68--Constitutional petition--Quashing of FIR--Allegation--Caused loss to state exchequer by stealing woods from the forest--Effected compromise--Validity--Once the forest department having agreed to compound the case subject to petitioner's payment of penalty imposed upon him the offence if any relating to theft of wood stood sorted out and settled according to rules and regulations of department--Further prosecution of the petitioner in respect of same offence u/S. 379, PPC is an attempt to vex the petitioner twice for the same offence--Held: In respect of the same offence is unreasonable, mala fide and amounts to punishing the petitioner twice for the same offence--FIR was quashed.
Judgement Result: Petition disposed of.
PLJ 2009 FSC 17
Present to: Haziqul Khairi, CJ, Dr. Fida Muhammad Khan & Salahuddin Mirza
FAISAL KHAN VersusSTATE
----Ss. 17(4) & 7(a)--Pakistan Penal Code, (XLV of 1860), Ss. 302/34, 392 & 412--Criminal Procedure Code, (V of 1898), S. 164--Conviction and sentence--Challenge to--Mitigating circumstances--Confession--Requirements of--At no stage charge was amended nor altered charge was read over to appellant nor was he given opportunity to defend himself which is a grave illegality as admittedly altered charge entails graver punishment--Appellant was charged and made confession--He did not "plead guilty of commission of theft liable to Hadd" yet he was convicted u/S. 17(4)--Held: An admission simplicitor whereas requirements of judicial confession are mandatory in nature failure where of will render confession invalid--Confession strictly scrutinized on touchstone of established judicial principles--Conviction of appellant u/S. 17(4) of Ordinance 1979, on basis of confession u/S. 164 Cr.P.C. is patently erroneous, without jurisdiction and of no legal effect--Further held: By superior Courts that where admission of guilt is only basis of conviction, statement of accused should be accepted in its entirely and believing it to be true, Court would examine that what offence has been made out against accused--Confession of appellant was truthful and honest and without ambiguity and was free from coercion or inducement and as confession accepted in its entirety--Because of mitigating circumstances, set aside impugned judgment but appellant convicted u/S. 319 PPC--Order accordingly.
Judgement Result: Order accordingly
PLJ 2008 FSC 27
Present to: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan, Salahuddin Mirza & Muhammad Zafar Yasin
GHULAM NABI & 2 others VersusSTATE
----S. 7--Proof of theft--Bank robbery--Evidence of fictitious person--Credibility of eye-witnesses--Violation of the requirements of Tazkiya-al-Shuhood--Truthfulness of witnesses and abstinence from major sins--Held: Three conditions have to be fulfilled for proof of theft liable to hadd, namely (i) there shall be an inquiry by the trial Court as to the credibility of at least two male eye-witnesses, (ii) the credibility of eye-witnesses shall be determined on the basis of their truthfulness and abstinence from major sins, (iii) the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of eye-witnesses are recorded--Held: Victim of the theft was a bank which was a fictitious person/entity and was not a natural person--Being a fictitious person it cannot adduce evidence of the theft personally but only through its agent or representative--Contentions--Firstly, evidence of bank employees is inadmissible under Sharia, Secondary, fictitious legal entitles of statutory/corporate bodies were not in existence in the days of The Holy Prophet (P.B.U.H.) and the relationship of master and servant existed only between natural persons--If such arguments is accepted then all the dacoits and robbers shall have free hand to commit dacoity and robbery of Banks without any fear and in due course there shall not be any bank at all--Qanun-e-Shahadat Order, 1984 does not recognize any such exception--According to Qanun-e-Shahadat all persons are competent to testify unless otherwise specifically debarred--There is nothing therein imposing any legal disability on the employee or servant of any one including a fictitious person to testify under Sharia law in a matter concerning his employer--Additional Sessions Judge conducted the inquiry was nothing but a mockery--To him PW-1, who on certain occasions tells lies is a credible as PW-2 who never tells lies--Again PW-3 who never offers prayers at all is a good as PW-1 who offers prayers regularly--This superfluous and summary inquiry was held was in clear violation of the requirements of Tazkiya-ul-Shuhood u/S. 7 of the Ordinance--Held: Prosecution had been fully able to establish its case of robbery against the appellants against whom there was irrebutable evidence falling under Tazir laws whereby the Bank was robbed--Appellants conviction set aside, they shall stand convicted u/S. 394 PPC (Tazir)--Order accordingly.
Judgement Result: Order accordingly
PLJ 2008 Cr.C 1057
Present to: Hasnat Ahmad Khan & M.A. Zafar
MUHAMMAD MUSHTAQ VersusSTATE
----S. 302(b)--Qanun-e-Shahadat Order, (10 of 1984), Art. 133(1)--Conviction and sentence recorded against the accused by trial Court--Challenge to--Mitigating and extenuating circumstances--Appreciation of evidence--Held: Non cross-examination on prosecution witness by the accused--Cross examination can only be conducted if the accused so desires but in this case the accused did not show his desire to cross-examine the said doctor at any stage--There was no deep rooted enmity between the parties--Admittedly, during the days of occurrence the appellant was performing the duties of gunman--The deceased, who belonged to a well to do family, according to the prosecution version had a squabble with the appellant a few days before the occurrence over the allegation of a theft--Due to the said allegation both of them had abused each other--According to prosecution's version that the appellant was publically insulted by the deceased who levelled allegation of theft against the appellant--The appellant did not repeat the fire at the deceased this fact along creates a mitigating circumstance in favour of the appellant--Further held: Appeal disposed of on merits, instead of remanding the case to the trial Court, after a period of seven years of the occurrence--Conviction maintained.
Judgement Result: Order accordingly
PLJ 2008 Cr.C 564
Present to: Tariq Shamim
MAJID ALI ABBASI, CHIEF EXECUTIVE, M/S. NEWLIFE CONSULTANT (PVT.) LIMITED, LAHORE VersusSTATE
----S. 497(2)--Emigration Ordinance, 1979, S. 22 & 18--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 411 & 109--Bail--Granted--Further Inquiry--Allegation of visa stickers stolen--Held: No evidence on record to even remotely suggest that the petitioner had played any part or role in he theft of the visa stickers stolen en-route from U.K. to the British Embassy in Moscow--Similarly, no evidence on record that petitioner had forged or fabricated visa stickers--No instrument or article which can be used for the purpose of forgery was recovered from the petitioner--Merely being in possession of documents purportedly forged in no offence unless it can be shown that the same had been used as genuine--There was no evidence on record to show that the passports with forged or stolen visa stickers had been used--Held: Evidence available on record was scant and not sufficient to connect the petitioner with the commission of the said offence--Case of Petitioner was one of further inquiry calling for further probe into his guilty--Petition allowed, bail granted.
Judgement Result: Bail admited
Present to: Kazim Ali Malik and Saif-ur-Rehman
EJAZ and 6 others VersusSTATE and another
----S. 497--Pakistan Penal Code, (XLV of 1860), Ss. 281, 285, 291, 293 & 427--Anti-Terrorism Act, 1997, S. 7--Maintenance of Public Order--S. 16--Bail, admitted--Directly approached High Court for bail--Bail was refused to entertain for want of jurisdiction--Bailable provision of law--Mens rea is essence of each and every offence--Prima facie, missing--Held: Intention of the prosecution was not to spread panic or to disrupt communication system or to overawe Police Force--Incidents of theft in the area tempted the petitioners and co-accused to lodge protest in order to convey their annoyance to superior officers of local police--Allegation of terrorism against the petitioners was open to further inquiry and serious doubt--Petitioners were behind the bars and were no more required for investigation--Bail was admitted.
Judgement Result: Petition allowed.
PLJ 2009 FSC 7
Present to: Syed Afzal Haider
SAEED alias GULDANG and others VersusSTATE etc.
----S. 17(3)--Pakistan Penal Code, (XLV of 1860), S. 392--Conviction & sentence--Challenge to--Appreciation of evidence--No finding of trial Court on the basic ingredient of robbery--Complainant neither in his statement before the police at the time or recording the crime report nor even at the time or deposing before trial either alleged element of restrain, fear of death or even instant hurt against the appellants--Element of theft itself being doubtful and the element of force or restrain or fear of injury not available on record--Held: Whereby appellants were convicted for the offence of robbery--Prosecution story does not appear to be consistent and convincing--In order to bring home the guilt to the accused the prosecution must establish the case beyond all reasonable doubts--Further held: Freedom of a citizen cannot be jeopardized on conjectures an surmises--Pushing people behind the bars also means deprivation of the means of livelihood--Right of movement, the right to earn and the conjugal rights can be suspended only on solid grounds--There are certainly doubts in the instant case and extending benefit of doubts to the appellant.
Judgement Result: Accused acquitted.
PLJ 2009 Lahore High Court 669
Present to: Pervaiz Inayat Malik
MUHAMMAD SHAFIQUE VersusSHO
----Art. 199--Pakistan Penal Code, (XLV of 1860)--Ss. 411 & 109--Forest Act, 1927, Ss. 62 & 68--Constitutional petition--Quashing of FIR--Allegation--Caused loss to state exchequer by stealing woods from the forest--Effected compromise--Validity--Once the forest department having agreed to compound the case subject to petitioner's payment of penalty imposed upon him the offence if any relating to theft of wood stood sorted out and settled according to rules and regulations of department--Further prosecution of the petitioner in respect of same offence u/S. 379, PPC is an attempt to vex the petitioner twice for the same offence--Held: In respect of the same offence is unreasonable, mala fide and amounts to punishing the petitioner twice for the same offence--FIR was quashed.
Judgement Result: Petition disposed of.
PLJ 2009 FSC 17
Present to: Haziqul Khairi, CJ, Dr. Fida Muhammad Khan & Salahuddin Mirza
FAISAL KHAN VersusSTATE
----Ss. 17(4) & 7(a)--Pakistan Penal Code, (XLV of 1860), Ss. 302/34, 392 & 412--Criminal Procedure Code, (V of 1898), S. 164--Conviction and sentence--Challenge to--Mitigating circumstances--Confession--Requirements of--At no stage charge was amended nor altered charge was read over to appellant nor was he given opportunity to defend himself which is a grave illegality as admittedly altered charge entails graver punishment--Appellant was charged and made confession--He did not "plead guilty of commission of theft liable to Hadd" yet he was convicted u/S. 17(4)--Held: An admission simplicitor whereas requirements of judicial confession are mandatory in nature failure where of will render confession invalid--Confession strictly scrutinized on touchstone of established judicial principles--Conviction of appellant u/S. 17(4) of Ordinance 1979, on basis of confession u/S. 164 Cr.P.C. is patently erroneous, without jurisdiction and of no legal effect--Further held: By superior Courts that where admission of guilt is only basis of conviction, statement of accused should be accepted in its entirely and believing it to be true, Court would examine that what offence has been made out against accused--Confession of appellant was truthful and honest and without ambiguity and was free from coercion or inducement and as confession accepted in its entirety--Because of mitigating circumstances, set aside impugned judgment but appellant convicted u/S. 319 PPC--Order accordingly.
Judgement Result: Order accordingly
PLJ 2008 FSC 27
Present to: Haziqul Khairi, C.J., Dr. Fida Muhammad Khan, Salahuddin Mirza & Muhammad Zafar Yasin
GHULAM NABI & 2 others VersusSTATE
----S. 7--Proof of theft--Bank robbery--Evidence of fictitious person--Credibility of eye-witnesses--Violation of the requirements of Tazkiya-al-Shuhood--Truthfulness of witnesses and abstinence from major sins--Held: Three conditions have to be fulfilled for proof of theft liable to hadd, namely (i) there shall be an inquiry by the trial Court as to the credibility of at least two male eye-witnesses, (ii) the credibility of eye-witnesses shall be determined on the basis of their truthfulness and abstinence from major sins, (iii) the statement of the victim of the theft or the person authorized by him shall be recorded before the statements of eye-witnesses are recorded--Held: Victim of the theft was a bank which was a fictitious person/entity and was not a natural person--Being a fictitious person it cannot adduce evidence of the theft personally but only through its agent or representative--Contentions--Firstly, evidence of bank employees is inadmissible under Sharia, Secondary, fictitious legal entitles of statutory/corporate bodies were not in existence in the days of The Holy Prophet (P.B.U.H.) and the relationship of master and servant existed only between natural persons--If such arguments is accepted then all the dacoits and robbers shall have free hand to commit dacoity and robbery of Banks without any fear and in due course there shall not be any bank at all--Qanun-e-Shahadat Order, 1984 does not recognize any such exception--According to Qanun-e-Shahadat all persons are competent to testify unless otherwise specifically debarred--There is nothing therein imposing any legal disability on the employee or servant of any one including a fictitious person to testify under Sharia law in a matter concerning his employer--Additional Sessions Judge conducted the inquiry was nothing but a mockery--To him PW-1, who on certain occasions tells lies is a credible as PW-2 who never tells lies--Again PW-3 who never offers prayers at all is a good as PW-1 who offers prayers regularly--This superfluous and summary inquiry was held was in clear violation of the requirements of Tazkiya-ul-Shuhood u/S. 7 of the Ordinance--Held: Prosecution had been fully able to establish its case of robbery against the appellants against whom there was irrebutable evidence falling under Tazir laws whereby the Bank was robbed--Appellants conviction set aside, they shall stand convicted u/S. 394 PPC (Tazir)--Order accordingly.
Judgement Result: Order accordingly
PLJ 2008 Cr.C 1057
Present to: Hasnat Ahmad Khan & M.A. Zafar
MUHAMMAD MUSHTAQ VersusSTATE
----S. 302(b)--Qanun-e-Shahadat Order, (10 of 1984), Art. 133(1)--Conviction and sentence recorded against the accused by trial Court--Challenge to--Mitigating and extenuating circumstances--Appreciation of evidence--Held: Non cross-examination on prosecution witness by the accused--Cross examination can only be conducted if the accused so desires but in this case the accused did not show his desire to cross-examine the said doctor at any stage--There was no deep rooted enmity between the parties--Admittedly, during the days of occurrence the appellant was performing the duties of gunman--The deceased, who belonged to a well to do family, according to the prosecution version had a squabble with the appellant a few days before the occurrence over the allegation of a theft--Due to the said allegation both of them had abused each other--According to prosecution's version that the appellant was publically insulted by the deceased who levelled allegation of theft against the appellant--The appellant did not repeat the fire at the deceased this fact along creates a mitigating circumstance in favour of the appellant--Further held: Appeal disposed of on merits, instead of remanding the case to the trial Court, after a period of seven years of the occurrence--Conviction maintained.
Judgement Result: Order accordingly
PLJ 2008 Cr.C 564
Present to: Tariq Shamim
MAJID ALI ABBASI, CHIEF EXECUTIVE, M/S. NEWLIFE CONSULTANT (PVT.) LIMITED, LAHORE VersusSTATE
----S. 497(2)--Emigration Ordinance, 1979, S. 22 & 18--Pakistan Penal Code, 1860 (XLV of 1860), Ss. 411 & 109--Bail--Granted--Further Inquiry--Allegation of visa stickers stolen--Held: No evidence on record to even remotely suggest that the petitioner had played any part or role in he theft of the visa stickers stolen en-route from U.K. to the British Embassy in Moscow--Similarly, no evidence on record that petitioner had forged or fabricated visa stickers--No instrument or article which can be used for the purpose of forgery was recovered from the petitioner--Merely being in possession of documents purportedly forged in no offence unless it can be shown that the same had been used as genuine--There was no evidence on record to show that the passports with forged or stolen visa stickers had been used--Held: Evidence available on record was scant and not sufficient to connect the petitioner with the commission of the said offence--Case of Petitioner was one of further inquiry calling for further probe into his guilty--Petition allowed, bail granted.
Judgement Result: Bail admited
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