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January 17, 2017

Human Trafficking in Pakistan

MENACE OF HUMAN TRAFFICKING IN PAKISTAN – ITS CAUSES AND PREVENTIVE MEASURES

During my posting as Special Judge (Central), Lahore for about 2-1/2 Years, a number of cases under the Immigration Ordinance, 1979 were dealt with by me. Each case had its own peculiar facts, some timepathetic and some time sensational and thrilling. This article is anattempt to cover the causes and implications of menace of humantrafficking in Pakistan as well as the proposed remedies and measuresmay be taken at different forums to eliminate or minimize this menace.

Human trafficking is an intricate and complicated issue. It is not confined to a particular country or region but has spread its tentacle more menacingly in the third world countries especially in the subcontinent. There are countless reasons for human trafficking all over theworld and the dominant reason is the economic deprivation andinequality prevalent in the society. There is acute paucity of jobsespecially for young educated persons. A job if fetched carries such ameager remuneration that it is difficult to make both ends meet. There is an unhealthy competition in our society to become rich overnight whichcompels our youth to indulge into adventurism. When unemployment,poverty, social injustice and inequality is prevailing in a society there arealways two options for the young generation either to sustain constantagony of poverty, despondency and destitute or to break the law andexplore some better avenues to lead some prosperous life. In thisbackground majority of the young generation obviously look for foreignshores. They are also enamoured from the ostentation and opulencedemonstrated by expatriates while living in their vicinity which is in factsham, unreal and farcical as well as momentary and leave the despondent youth in glum and gloom. It is a matter of common experience that suchlike people easily fall prey to the travelling agents mafia. The economiccompulsions both on the part of the travelling agents and the intendingemigrants make them low on morals and requirements of law. Suchagents are well connected, deep-rooted and have a wide net all over the world and they take the benefit of any laxity if extended to them at theborders or at the airports. The travelling agent mafia has variety ofdevices and tricks to avoid the vigilant eyes of the Agencies at suchplaces and take the emigrants out of any country through illegal means.

It is yet another tragedy that when such people land in the foreign shores then very hard, miserable and agonizing realities stare in their faces. At times their travelling documents are found deficient anddefective. The jobs they were expecting to get are nowhere in sight. Thedreams to become rich overnight are smashed which are converted into anightmare. It is really deplorable that some of them either die on thehilly tracks while crossing Pak-Iran border or in the containers atTurkish Greece border. Even if they succeed to enter into any Europeancountry they have to lead a very miserabl

Digital Terrorism – Definition & Role in Counter-Terrorism

DIGITAL TERRORISM” AND ITS SIGNIFICANCE TO COUNTER-TERRORISM

Online sites are used by terrorists as forums for the discussion on the state of global terrorism, propagation of anti-state sentiments and related issues. Social media has certainly increased the appeal of terrorism and its following. Presently, terrorist groups operating around the world use online social media and network sites such as Youtube and Facebook to post detailed reports of their activities, photographs, videos, policy statements, future plans and responses to criticisms of their organizations.

Terrorist organizations are using web forums, websites and social media networks for their routine conversations, exchange of tactics, socialisation, propaganda and recruitment.

General content that is beneficial for counterterrorism efforts is also posted.

Languages of Terrorism in Social Media

English language is widely used by terrorists in media for global outreach and is presently deemed the second most commonly used language by terrorists in media according to some analysts. Al Qaeda in the Arabian Peninsula (AQAP)’s magazine, Inspire, available online, is a clear manifestation in this regard and so is The Global Islamic Media Front (GISM). The Ansarullah and Bab-ul-Islam online forums of Al Qaeda are operational in multiple languages, and they are also available on Twitter and Facebook. Various segments of Al Qaeda have their own media houses like Al Sahab (in Central Asia), Al Andulus (in Morocco), Al Malahim (in the Arab Peninsula), Al Kataib Media of Mujahideen Youth Movement (Al Qaeda Central), Al Qadsia (in Libya), Al Furqan (in Iraq and Syria) and Omer Media (in Afghanistan).

The other two major languages used by terrorists in media are Bahasa Indonesia (the language of Indonesia) and Urdu, spoken in Pakistan and the Indian subcontinent. A study of the emerging languages used by terrorists in media is important in assessing future trends in terrorist activity and presence. Pashto, the native language of the Pashtun people of Afghanistan and Pakistan, has gained importance in such regard. Pashto is used in inspirational terrorist songs and interviews, including for propaganda material distributed in CDs/DVDs. The use of Bangla (Bengali) and Turkish is also increasing; as almost all major contributions by terrorists in media are being translated into Bangla and Turkish. Bangla is spoken in Bangladesh and the Indian State of West Bengal, and Turkish is spoken mainly in Turkey with small communities of speakers also in Central Asia and the Caucasus (and other parts of Eastern Europe as well as in Germany, Bulgaria, Macedonia, Northern Cyprus and Greece). This is perhaps indicative of regions where terrorism influence is growing, as readers/ viewers seem to be following such media vigorously. The Russian language is also used as many terrorist works have been translated into Russian regularly since the year 2009.

Online Monitoring Justified?

Snowden’s leaks on the US government’s expansive surveillance programs have triggered a great debate on the justification of surveillance of all types of communications, including internet/web­based communications by intelligence agencies, and its consequences on the rights and liberties of citizens. While the respect for individual liberties is extremely important, intelligence gathering is greatly augmented through online monitoring as described above. To further illustrate, Al Shabab was tweeting on seven accounts of Twitter during their attack of the Westgate mall in Kenya. Thus, if continuous monitoring of these accounts had existed, authorities may have been in a position to respond to the crisis quicker and more effectively.

Moreover, terror threats have been successfully curtailed by effective monitoring of terrorist chat rooms and social media. The arrests of Hosam Smadi (2009), Antonio Martinez (2010), Awais Younus (2010) and Khalid Ali (2011) are just a few examples of terror plots foiled by counter-terrorism practitioners through effective monitoring and follow-up operations. Effective monitoring of online terrorist sites and forums including social media and network sites have led to more accurate threat assessments, and therefore, terror based media is considered to be an easy and important source of intelligence. In May 2013, a plot to bomb the Embassy of Myanmar in Indonesia was detected and foiled when one of the terrorist perpetrators, Separiano, a.k.a. Mambo Wahab, revealed his plans to execute the attack through a Facebook status update. The monitoring of online terrorism media has also been supportive in terrorism investigations in unearthing terrorist networks and their sympathizers, as every upload and download leaves a trace. Monitoring terrorist sites has also been used for launching sting operations to capture terrorists, including new recruits to terrorist groups.

However, checks and balances should exist by way of, for example, making it compulsory to obtain approval from the court afterauthentication by a responsible officer, and then imposing subsequentaccountability mechanisms. It can be noted here that terrorists are atpresent more aware of the possibility of getting tracked by theauthorities through the internet, and are thus engaged in an effortto launch encryptions and authentications to secure onlinecommunications between members, although the encryptions are far fromperfect.

The monitoring of terrorist social media can be helpful in devising counter narratives especially in Muslim countries, as the terrorist propaganda is often wholly devoid of truth in relation to the creation of counter narrative or counter-ideology and its widespread availability on the internet, including on social media and network sites, are crucial for the prevention of radicalization of individuals which leads them to support or commit acts of violence. To effectively curtail the appeal of terrorism, counter narrative media must be produced in a manner which appeals to the youth. Thus, its availability on social media and network sites is crucial. Presently, there are scarcely any counter narrative media on social media and network sites that is administered by authentic Muslim scholars or Islamic governments.

Blocking of Extremist Sites and its Constraints

In many countries, State response has been to block sites managed by terrorist organizations, as the material posted on these sites such as bomb- making manuals are extremely dangerous, and the content of these sites fall under the category of hate material directed at incitingviolence and extremism. However, States are aware that, there is noguarantee that such initiatives are effective in minimizing the use of theinternet by terrorist organizations. Various terrorist organizationswhose websites are blocked often use Facebook and Twitter asalternatives.

Thus, blocking can never be a complete solution in countering the online presence of terrorist organizations, although it can be effective if applied selectively. In addition to passive monitoring of websites togather intelligence, authorities can create confusion and mistrust betweenforum members by contaminating the contents, for example by producingfabricated statements by terrorist organizations. However, sites thatpublish materials on tradecraft involving bomb-making and other types ofviolence should be blocked at once before radicalization occurs andviolence is incited.

In fighting the terrorist propaganda tactics, governments are alsoconstrained by the rights and liberties of their respective citizens. The “freedom of speech” as practiced in the West, for example, which isconsidered sacrosanct and inviolable by the populace, is at the same timeviewed by Muslims across the globe as a factor which encourages hatespeech, as exemplified by the caricatures of the Prophet Muhammadpublished in a Danish newspaper.

Conclusion

The monitoring and analysis of terrorism based media has shed insight into the organizational structure of terrorist groups and their affiliates, ideology, goals and future plans in the agenda for global terrorism, and continued monitoring will shed further light. The study of terrorist media gives a glimpse into how these groups function, which are otherwise shrouded in mystery. The understanding gained has contributed to the development of strategies and counter narrative to overcome this challenge. The continued utilization of these sites will facilitate intelligence collection in terror and criminal investigations and counter-terrorism operations in the future. Thus, state authorities, while blocking sites which incite violence directly, should not ignore the monitoring of these forums and chat rooms for respect of civil liberties, for it is in the pursuit to protect civilian life that online monitoring is conducted.

The speed of production of media content by terroristorganizations matches that of international media houses. The contentitself has been attractive, which includes details of an operation from the planning stage to its completion, which has increased the credibility andpopularity of terrorism based media in the eyes of their supporters.Thus, to support national counter-terrorism initiatives, it is apparent that a cooperative and responsible transnational monitoring mechanism should be developed involving all the international community, in order to counter the transnational nature and media reach of terrorist organizations at present.

Encouragingly, the US and Turkey are creating the Global Fund for Community Engagement and Resilience (GFCER) to stem extremism. The US $200 million fund aims to undercut the ideological and recruitingappeal of terrorists in places like Somalia, Yemen and Pakistan. Thisarticle advocates the creation of a “Global Centre for Research and Monitoring on Terrorism and Terrorism based Social Media” underGFCER, which would be helpful for counter-terrorism operations and intelligence worldwide as well as in countering the terror rhetoric andterrorist radicalization strategies propagated internationally throughonline media and social network sites.

Author: Muhammad Ahsan Younas (Muhammad_Younas@hks.harvard.edu) is a senior policeofficer from Pakistan with expertise in risk assessment, social media in terrorism studies and security, and is presently a Lee Kuan Yew Fellow at the Harvard Kennedy School of Government.

Environmental Protection in Pakistan – Comprehensive Study

ENVIRONMENTAL PROTECTION IN PAKISTAN 

Abstract

            Environmental degradation is a major global concern. In Pakistan, as well, we are struggling to find ways to deal with it. The Parliament has passed legislation for protection of the environment. This paper will examine the current legal situation with regard to environmental protection, and in the process discuss the role played by the honorable courts in creating an enabling procedural framework for the protection of environment. The paper looks at the gaps and bottlenecks that existed for the petitioner to approach the superior courts and how the superior courts through various cases, starting from the seminal Shehla Zia case (PLD 1994 SC 693) down to the present day have through hearing many petitions impacted this area. The impact has been two fold; relief in the particular case and broadening of the potential for judicial intervention for environmental protection.

Background

            The emergence of environmental protection law in the last four decades is a manifestation of global desire to combat the deteriorating standards of environment by encouraging enactment of laws and policy guidelines to prevent irreparable loss to it. The magnitude of the task required an all-inclusive and participatory approach whereby not only experts but civil-society organizations could also play their part in the formation of laws and act as pressure groups to force governments to adopt a sustainable approach to growth and, thereby, striking a balance between environmental protection and development. Since the conclusion of Stockholm Declaration in 1972, more than 500 international environmental agreements have been concluded3 and the interest in the subject only gains in momentum with every passing day. Pakistan, being a responsible member of international community was quick to respond to the global need and adopted not only relevant international conventions, such as the Convention on Biological Diversity4, but also put in place national legislation. It is pertinent to note that centre is responsible to incorporate its international commitments in the domestic law by virtue of items numbers 3 and 32 of the federal legislative list.

            One of the primary purposes for putting in place environmental legislation was to couple development with environment protection in order to keep a balance between economic growth and the use of resources. Being mindful of the need to preserve environment, Pakistan was quick to establish the Ministry for Environment (hereinafter referred to as the Ministry) in 1975.7 The Ministry was mandated with the task to ensure the implementation of Environmental Protection Ordinance, 1983 wherein an institutional framework was provided at national and provincial level in the form of establishment of Environmental Protection Agencies and Pakistan Environmental Protection Council (hereinafter referred to as PEPC), then headed by the President as provided for in section 3 of the said Ordinance. Later, through an amendment, Prime Minister was designated as its head. Main functions entrusted to the Council included formation of the national environmental policy and enforcement of National Environment Quality Standards.8 After the conclusion of the Rio Summit, commonly known as the Earth Summit, National Conservation Strategy (hereinafter referred to as NCS) was introduced to address the environmental concerns.9 NCS was designed to meet three objectives; conservation of natural resources, sustainable development and improved efficiency in the use and management of resources and it highlighted fourteen key areas in respect of which policy guidelines were recommended.10 In 1993, Environmental Protection Agency issued a statutory notification whereby it introduced National Environmental Quality Standards (hereinafter referred to as NEQS). NEQS related to ‘municipal and liquid industrial effluents, industrial gaseous emissions and motor vehicle exhaust, and noise.’11 The current applicable legal framework was provided in Pakistan Environmental Protection Act, 1997 (hereinafter referred to as PEPA) which repealed the earlier Ordinance and is discussed in the next section.

Relevant legal framework:

            Constitution of Pakistan, 1973 does not contain any provision whereby an explicit mention of environment has been made. Before concurrent legislative list was repealed under the eighteenth (18th) amendment, item number 24 of the list mentioned “environmental pollution and ecology” thereby allowing both centre and provinces to legislate on the subject.12 However, the courts, by employing ‘expansive interpretation’ have read environmental aspect into certain fundamental rights provisions to be discussed in the seminal case of Shehla Zia v Wapda (1994). The basic framework, otherwise, is contained in PEPA, 1997.

            PEPA received the assent of the President on December 3, 1997. It was designed as an over­arching legal framework seeking to comprehensively cover aspects related to environmental protection in Pakistan. The preamble to the law states, ‘An Act to provide for the protection, conservation, rehabilitation and improvement of the environment, for the prevention and control of pollution, anti promotion of sustainable development.’

            And the term environment, as per the Act, includes:

(a)        air, water and land;

(b)        all layers of the atmosphere;

(c)        all organic and inorganic matters and living organisms;

(d)        the ecosystem and ecological relationships;

(e)        buildings, structures, roads, facilities and works;

(f)         all social and economic conditions affecting community life; and

(g)        the inter-relationships between any of the factors in sub-clauses (a) to (f)14

            PEPA retained PEPC and allowed Prime Minister, as head of the PEPC, to nominate any other person on his behalf. Functions entrusted to the council remained same as were provided for under the now repealed Ordinance. PEPA provides for environmental protection agencies in both, centre and provinces, whereby the provincial agencies enjoyed power resulting from delegation from central to respective provincial government which would further delegate them to the provincial agency.16 As a result of the eighteenth (18th) amendment to the Constitution of Pakistan, subject of environment, amongst others, was devolved to the provinces. Constitution, however, provides that the laws in force before the commencement of the amendment shall continue to remain in force until altered, repealed or amended by the competent authority.17 The relevant provincial legislation, in this regard, has been referred to later in this section. Chief functions of the federal agency include; enforcement of the Act, preparation of national environmental policy and NEQS with the approval of the Council. It may also, ‘Undertake inquiries of investigation into environmental issues, either of its own accord or upon complaint of any person or organization.

            PEPA prohibits discharge ‘of any effluent or waste or air pollutant or noise in an amount; concentration or level which is in excess of the National Environmental Quality Standards.’19 One of its significant features is the environmental assessment; initial environmental examination, which needs to be done before a project is undertaken in order to assess the risks the project may pose to the environment ‘for requiring preparation of an environmental impact assessment’20 (hereinafter referred to as EIA) where the project has the probability of leaving a negative impact on the environment.21 Schedule to the Act contains a list of international conventions with respect to which the federal government, as mentioned above, has the power to make rules for implementing their provisions.22 It is pertinent to note that these would remain unenforceable unless the federal government or the provincial government in accordance with the relevant Act prescribes rules to put their provisions into effect.

            Since the passage of the eighteenth amendment, all the four provinces have passed environmental protection legislation thereby effectively replacing the national legislation in the provincial jurisdiction i.e. Punjab, Sindh, Khyber Pakhtunkhwa and Balochistan.

            It is important to mention the name of Honorable Mr. Justice Saleem Akhtar, who many believe played a pivotal role in promoting environmental protection through judicial action.

Impact of the Case-Law, Innovation and principles of law

            An important aspect of studying the impact of case-law to study how superior judiciary has provided for necessary legal and procedural framework which is a prerequisite for assuming jurisdiction over matters of environmental protection under the rubric of ‘public interest litigation. Before we look at the impact of case-law on environmental protection, we need to look at the issues which were a hindrance with regard to the courts’ ability to provide relief. The first problem was that under an adversarial system, being an aggrieved person is a necessary condition for having a locus standi before the court of law. Related to this is the problem that the courts do not traditionally have an inquisitorial role under common law systems. Finally, PEPA has an ouster clause, which does not allow courts to hear the case at the initial stage, and only allows them to hear appeals from the tribunal.

            PEPA, specifically provides for establishment of environmental tribunals. A complaint, in respect of matters enumerated in section 17 of PEPA, may be addressed to the tribunal by either the agency or government agency or local council and any aggrieved person provided he has made a notice of his complaint to the respective agency with the intent to file the same before the environmental tribunal. In addition, the law explicitly states that the tribunals shall have exclusive jurisdiction to deal with matters that fall under the Act and, thereby, precludes jurisdiction of any other court to hear the case at the trial stage. Though, an appeal can be preferred to the High Court. The superior courts have, however, maintained that the finality clause cannot preclude the power of judicial review.25 In General Secretary Salt Miners Labour Union (CBA) Khewra, Jhelum v. The Director, Industries and Mineral Development, Punjab, Lahore (1994)26, the court made it clear that procedural bottlenecks cannot restrict the ability of the court to hear cases affecting rights of the people, at large. In this case, it stated:

            “It is well settled that in human rights cases/public interest litigation under Article 184 (3), the procedural trappings and restrictions, precondition of being an aggrieved person and other similar technical objections, cannot bar the jurisdiction of the Court.”

            The honorable courts primarily adopted this approach to distance themselves from the traditional common law adversarial approach. As this approach is more suitable in cases which involve the rights of one person against another, rather than the rights which rest in things, such as environment, which is shared by large groups of people and citizens at large and which poor people don’t have the means to protect, so that unions, non-governmental organizations and other bodies working for environmental and other causes can bring cases before the court to protect the vulnerable against the environmental hazards who may otherwise be left without redress owing to lack of education or resources to approach the court. In an Indian Case, Bandhua Mukti Morcha v. Union of India and others (1984)27, Justice Bhagwati noted to this effect that:

            “[s]trict adherence to the adversarial procedure can sometimes lead to injustice…. it is necessary to depart from the adversarial procedure and to evolve a new procedure which will make it possible for the poor and the weak to bring necessary material before the Court for the purpose of securing enforcement of their Fundamental Rights.”

            Similarly, Lahore High Court in State v M.D. WASA(2000)28 noted:

            “The rationale behind public interest litigation in developing countries like Pakistan and India is the social and educational backwardness of its people, the dwarfed development of law of tort, lack of developed institutions to attend to the matters of public concern, the general inefficiency and corruption at various levels. In such a socio-economic and political milieu, the non-intervention by Courts in complaints of matters of public concern will amount to abdication of judicial authority.”

            The Court, in the foregoing case, also pointed towards the possibility of judicial intervention where the court deems it appropriate. The suo motu notices are a reflection of the court’s intent and, as put by Dr. Pervez Hassan, “show the acute concern of the Pakistani judiciary to perform their functions towards advancing justice so far as circumstances and their powers permit.”29

            One of the essential differences between adversarial and public interest litigation is that in the latter “proceedings conducted by the court are inquisitorial rather than adversarial, and they tend to be discretionary, incorporating any elements of informal procedure which the judge considers appropriate to follow.”30 It needs to be mentioned here that the inquisitorial system is practiced in the European continental civil legal systems, whereas common law works on the basis of adversarial system. The reason for broadening the purview of their jurisdiction and to innovate new procedures is to ensure that the court interprets the law avoiding procedural technicalities so that justice is done. In an adversarial legal system, the judge is neutral whereas in an inquisitorial system he plays a more active role and as part of combining inquisitorial with adversarial legal system the courts have devised the system of appointment of expert commissions to probe the hazards which may accrue as a result of a project is an example of the inquisitorial procedures adopted by the courts in public interest litigation to fill in the ‘gap’ that the court exercises in matters related to environmental protection since judges require the help of environmental experts to understand the environmental impact.31

            The landmark public interest environmental litigation is considered to be Shehla Zia v WAPDA (1994).32 The case preceded PEPA whereby it was submitted before the Honorable Supreme Court that whether the life of a citizen can be endangered by an action undertaken by an agency of the government without the consent of the citizen. This case is important for quite a few reasons. Firstly, the honorable Supreme Court broadened the right to life (Article 9) to include the right to clean environment and made the following observation as obiter dicta:

            “The word “life” has not been defined in the Constitution but it does not mean nor can be restricted only to the vegetative or animal life or mere existence from conception to death. Life includes all such amenities and facilities which a person born in a free country is entitled to enjoy with dignity, legally and constitutionally. A person is entitled to protection of law from being exposed to hazards of electromagnetic fields or any other such hazards which may be due to installation and construction of any grid station, any factory, power station or such like installations.”

            Secondly, the honorable Court while being mindful of the need for economic development observed that a balance needs to be struck between the rights of the citizens and the economic progress and prosperity of the country. Thus, the Court highlighted that a ‘policy of sustainable development’ shall be adopted. Thirdly, the Court gave weightage to expert opinion and the importance of research in technical matters. The Court was mindful of the fact that up-to date information and research must be available at all times to consider the effects which hazardous material may have on human health. This is significant because the Court rightly adopted evolutory interpretation on the matter for nature of the law is one which required the Court to deal with it as a living instrument constantly evolving with scientific research on the subject. Lastly, the Supreme Court introduced the precautionary principle in the Pakistani jurisprudence. This was adopted from the Rio Declaration albeit it is not binding. The said Principle 15 of Rio Declaration provides:

            “…Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost effective measures to prevent environmental degradation”

            In the same case, the honorable Supreme Court further noted:

            “Pakistan is a developing country. It cannot afford the researches and studies made in developed countries on scientific problems particularly the subject at hand. However, the researches and their conclusions with reference to specific cases are available, the information and knowledge is at hand and we should take benefit out of it. In this background if we consider the problem faced by us in this case, it seems reasonable to take preventive and precautionary measures straightaway instead of maintaining status quo because there is no conclusive finding on the effect of electromagnetic fields on human life.”

            The Court, though, as can be deduced from the abovementioned case are ready to give an expansive interpretation in cases of environmental protection but at the same time they do not seem to go so far as to frustrate the projects which are undertaken by the Government as a result of compelling circumstances. In Cutting of Trees for Canal Widening Project, Lahore (2011)33, the Honorable Supreme Court laid down some important principles to achieve a balance between economic growth and preservation of the environment. It was observed that the alleged violation of a fundamental right will not vitiate the necessity of a project so long as it can be shown that; alternative proposals were duly considered, EIA was given clearance by the concerned agency and doctrine of public trust or precautionary principle were not violated. In this regard the Court made reference to Professor David Takacs’s34 work wherein the elements of Public Trust Doctrine are explained as follows:

“(i)        the sovereign holds certain resources in trust for the common good;

(ii)        The public has some kind of right to protection of these resources: and

(iii)       While democracy may seem subverted when a court overrules the acts of elected officials, such judicial acts in fact serve democracy by preserving rights invested in all the people.”

            The preceding case-law is an example of how the courts will not second guess the judgment of the relevant agency so long as all the legal requirements are met and the law is abided by in true spirit. Secondly, by making reference to the doctrine of Public Trust, court has made it evident that it is for the state to decide what constitutes greater good of the society and not the public and that the court will only overturn an official act where it deems the same to be against the interest of the public at large.

            In another important case, Syed MANSOOR ALI SHAH and 4 others v GOVERNMENT OP PUNJAB, through Housing, Physical and Environmental Planning Department, and 3 others (2007)35, the Honorable Lahore High Court while dealing with the issue of air pollution caused by vehicular emissions directed the relevant authorities to take concrete steps to implement the recommendations of the Commission appointed by the Court in the said case. One of the key suggestions in the case was the phasing out of two stroke rickshaws from Lahore. The case is important for two reasons. One, the court directed the authorities to undertake measures so that suggestions of the Commission could be implemented what would otherwise have been a policy decision. This reflects that the court may be ready to venture into-policy domain if the relevant authorities fail to take measures in order to preserve the environment and to prevent public from being affected by the hazards of its degradation. Secondly, the attention of the Court was drawn to the international conventions that Pakistan is a part of whereby she has made commitments to take measures to improve the environmental situation. This suggests that there is a trend in cases related to protection of environment that the court would delve into the international environmental treaties and the principles laid therein to reach a conclusion even in the absence of an enabling legislation or rules made to that effect. The Court made the following observation:

            “Pakistan is party to 2001 Stockholm Convention; which is a global treaty to protect human health and environment from Persistent Organic Pollution (POP). Pakistan has also joined the global community being party to 1985 Vienna Convention on Protection of Ozone Layer. Pakistan has signed the 1992 United Nations Framework Convention on Climates Change (UNFCCC). The objective of the Convention is the stabilization of greenhouse gas concentration in the atmosphere at a level that would prevent dangerous anthropogenic interference with the climate system. Pakistan is also signatory of 1990 International Oil Pollution Preparedness, Response and Cooperation.”

            Similarly, in a recent case titled, YOUNG DOCTORS ASSOCIATION and others v GOVERNMENT OF PAKISTAN and others (2015)36, the court other than commenting on the doctrine of Public Trust, mentioned earlier, deliberated on the term ‘sustainable development’ and made reference to URBAN 21 conference that was held in Berlin in 2000, after PEPA had been introduced. This signifies that Court does not keep itself confined to the actual definition given in the Act but would move beyond the Act to understand the parameters if so needed in order to keep the Act applicable to emerging circumstances. Though, a study titled ‘Development of Environmental Law and Jurisprudence in Pakistan done by Irum Ahsan and Saima Amin Khawaja, suggests that the courts have not made too much use of the internationally recognized environmental principles37 but the references made to up to date research and to assign meanings to the terms used under PEPA in keeping with later instruments seems to suggest, the intent to judge the matters of environmental protection in accordance with evolving international standards.

            In another case, the SINDH INSTITUTE OF UROLOGY AND TRANSPLANTATION and others v. NESTLE MILKPAK LIMITED and others (2005)38, the Court noted that though an owner of the land has the right to lawful enjoyment of his property but such a right is not unfettered and is subject to certain conditions. In the present case, Nestle wanted to acquire a land for the purposes of setting up a water bottling plant which would have resulted in exploitation of the sub soil water. The Court made reference to Principle 2 of Stockholm Declaration; “The natural resources of the earth, including the air, water, land, flora and fauna especially representative, samples of natural eco systems, must be safeguarded for the benefit of present and future generations through careful planning or management, as appropriate.” It was noted in the judgment that unfettered exploitation of natural resources cannot be allowed and must be kept in check. Thus, the courts while ensuring the greater good of the society are only ready to expand but also curtail the rights where necessary.

Conclusion

            The above discussion shows that the role of the courts in Pakistan has been important in the protection of environment. Although in the opinion of some, the courts may have stepped outside their traditional role of only declaring what the law is, by adopting an ‘expansive and evolutory’ interpretative approach. However, it needs to be kept in mind that the best of the laws may not be able to provide access to ‘justice’, due to a number of ‘roabdlocks’. One of them being the procedural bottlenecks. We have seen in the cases discussed in this paper that the courts have through various cases provided a route to the affected party to approach the courts, by allowing NGOs, and other interest groups etc., to approach the courts, on behalf of the disenfranchised and disempowered poor and vulnerable affected parties. In addition, another ‘roadblock’ so to say, has been the ouster clause in the relevant legislation; again the courts, in keeping with international judicial trend, have continued to respect legislative authority, but still managed to provide a judicial oversight to executive actions, through the use of their inherent and constitutional powers of judicial review. Thus in the presence of exclusive initial jurisdiction of environmental tribunals, superior judiciary continues to entertain writ petitions and take suo motu notices. This approach has resulted in some misgivings on part of those who feel that the traditional declaratory role of the judiciary is to apply the letter of the law only, and in their opinion this has been extended as a result of this judicial role. Though, the authors believe that judiciary as a principle, should continue performing its task of interpreting the law and avoid the perception of stepping into the domain of Legislature and Executive, it is also noted that, with regard to environmental protection, the lack of sufficient interest shown by the Legislature and the Executive has necessitated the judicial intervention in this domain. Otherwise, the environmental protection framework may have failed to achieve any significant functionality in Pakistan. It is hoped that in the future the Legislature will step in to make necessary legal changes to provide easier access to those affected by environmental degradation and the Executive will prove much more sensitive to environmental concerns and tackle them in a decidedly more robust manner. If this happens, it would obviate the need for judges to play such a role. It needs to be mentioned however, that the Executive and the Legislature are tied by the compulsions of political economy and the nature of our politics is patronage based, and therefore for the foreseeable future it is likely that the environmentalists will continue to look to the judiciary for applying the doctrine of public trust for environmental protection.

Authors

Mr. Ahmad Nazir Warraich

Mr. Muhammad Bilal Ramzan

Dying Declaration in Pakistani Law | Legal Research Paper

Dying Declaration

Article 46(1) of Qanun-e-Shahadat order 1984 deals with dying declaration. Which is one of the exceptions of the hearsay rule. General presumption is that dying person usually speaks truth. Admissibility of dying declaration obviously rests upon the principle of necessity alone.  As the victim is in most cases the only eye witness to the crime. The only exclusion to his statement might defeat the ends of justice.

Dying declaration is admissible in Pakistan in all proceedings. i.e.  civil as well as criminal cases. Provided that the cause of declarant’s death comes in to the question in those proceedings.

Definition of dying declaration.

A dying declaration may be defined as

A statement made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.

Modes of dying declaration

These are the following modes of dying declaration.

1.Written or oral

A dying declaration may be made either orally or in writing.

2. By signals (Sign or Gustures)

Sign made by injured person either by a nod of the head to indicate assent or by the sign or motion of figures or hand in answer to question amount to verbal statement.

Dying declaration admissible against whom

A dying declaration is admissible not only against the person who actually caused the death of the maker (victim) but also against other person concerned in the transaction, which resulted in the declarant’s death. It is only admissible in those cases in which the cause of that person’s death comes in to question.

Dying declaration is inadmissible

In the following cases dying declaration Is inadmissible.

  1. When the cause of declarant death does not comes in to question.
  2.  When the death of the maker of the statement is not caused or accelerated by wounds inflicted by the accused.

How it is proved

A dying declaration is admissible whether it is written or ververbally made. Generally an unwritten declaration is proved, by calling persons who heard or to whom it is made. And those persons are subjected to examination accordingly.

In order to make dying declaration admissible, it has to be examined by following test.

Test of admissibility

The first test for examining a dying declaration is that weather death of the declarant has been. occurred or not. If iot is not proved that the maker of the statement is dead or if he is alive. The statement is inadmissible and article 46  not applicable. This test is called test of admissibility.

Test o f Reliability

In order to make a dying declaration  more reliable some of the main tests for determining its geniuses are as under.

  1. Whether the maker had the physical capacity to make a dying declaration.
  2.  Weather the maker had opportunity to recognize the assailant.
  3. Whether there could be chances of mistake on part of the dying person in identifying and naming his assailants.
  4. Whether it was free from prompting from any outside quarter and was not inconsistent  with the other evidence and circumstances of the case.
  5. Whether the witnesses who heard  the declarant making the statement heard him correctly and whether their evidence can be relied upon.
  6. This above two tests enumerates that how much care and cautions applied in order to make a dying declaration admissible.

Evidentiary value of Dying Declaration

Law has attached great sanctity to the bystatements made by deceased persons. Although it is not tested  by cross examination. It is given the same credit as to any other evidence. If the statement fulfills all the essentials of dying declaration Then generally corroboration is not required. But some things corroboration becomes necessary as the dying person may be of different faith. Because evidentiary value of dying declaration  also depends on the integrity of the dying man.

Person who may record it

These are the following persons can record dying declaration.

  1. By Magistrate.

                           Magistrate can record the dying declaration.

  1. By Doctor.

                 It can be recorded by the doctor present at the spot.

  1.  By police officer.

                 It can be recorded by the police officer present at the spot.

Essentials of dying declaration

Before a dying declaration can be admitted in evidence , it must be proved that

  1. The person who has recorded the statement  must be dead.
  2. The statement must be as far as possible, in the actual words of the maker.
  3. The statement explains cause of maker’s death or circumstances of the transaction which resulted in his death.
  4. The cause of declarants death must be fact in issue.
  5. The declaration must be complete in itself in  order to be admissible.
  6. It must corroborate with the other material evidence on record
  7. A dying declaration must be taken as awhole.
  8. While making dying declaration expectation of death of the maker is not essential .

Conviction on base of dying declaration

With reference to above discussion one can say that a dying declaration duly proved and admitted in to evidence can safely be the basis for conviction in a case.

CASE LAWS

These are the following case laws which are related with dying declaration

Case Laws: 1978 PCRLJ 507 (D.B)

Held. It was held that a dying declaration true and genuine is sufficient for conviction.

Case Laws.2001PCRLJ268

If the dying declaration does not suffer from any infirmity it is sufficient to warrant conviction for an offence.

Case Laws. 1995PCRLJ 1784

Where dying declaration is made by deceased was based on true facts and was supported by unimpeachable testimony of prosecution witnesses , medical witnesses, site plan, recoveries and abscondence of accused. Conviction and sentence of accused were upheld.

Case Laws.NLR2004 CR715=PLD2004SC367

Dying declaration made soon after the incident or at a time when deceased expected death deserves great weight and can not be discarded merely on assumption that it was the result of consultation/deliberation.

Case laws: 1973 SCMR26

A dying declaration which is incomplete upon its face is inadmissible in evidence because no one can tell what the deceased might have added.

It is quite clear from the above discussion that the declaration duly proved can be basis of conviction . this piece of evidence is made in extremity. When the party is at the point of death and when every hope of this world is gone and the mind is adduced by the most powerful considerations to speak the truth. However great care must be taken in to consideration while admitting it into evidence. As it is the primary principle of law that an innocent person should not be convicted no matter if hundred criminals are acquitted. So the rule of prudence requires corroboration of dying declaration with material evidences on record.

Rule of Consistency in Criminal Law of Pakistan | Case Laws

Rule of Consistency

Meaning of rule of consistency is at same footing, at par. Conformity in the application of something, typically that which is necessary for the sake of logic, accuracy, or fairness.

Article 25 of the constitution 1973

All citizens are equal before law and are entitled to equal protection of law. Decision of Supreme Court binding on other courts.

Article 189 of constitution of Pakistan 1973

Any decision of the Supreme Court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all other courts in Pakistan.

Decision of high court binding on subordinate courts high court shall, to the extent that it decides a question of law or is based upon or enunciates a principle of law, be binding on all courts subordinate to it.

Article 201 of constitution of Pakistan 1973

Subject to article 189 of the constitution  of Pakistan 1973, any decision of the

When apply.

It applies when the accused having same and identical role with the co accused then he is entitle for the same relief which was granted to co-accused by the court

In this case law the HIGH court t granted relief to civil servant in order to maintain balance and uphold doctrine of equality PLJ 2012 LAH 24

Rule of consistency in criminal cases

  • 382/506/148/149, bail allowed on the ground of rule of consistency PLJ 2014 CRC 347
  • 302/324 motive not assigned to petitioner, contradiction between fir and supplementary version of complainant. cross version, no injury assigned to deceased ,investigation completed, co accused on bail, bail allowed to present accused PLJ 2014 CRC266

Rule of consistency in pre arrest bail

  • 324, pre arrest bail, accused remained absconder, his absconding would not debar the accused from the relief when otherwise present accused is at par with co accused to him bail granted by court. pre arrest allowed to the present petitioner. PLJ2014 CRC 124

Rule of consistency in post arrest bail

  • 395/412, post arrest bail. Role of accused is at par with co accused to which bail already granted. Bail allowed to the present accused on rule of consistency. PLJ 2013 CRC 780

Rule of consistency under anti-corruption law

  • 420/468/471/5(2) 1947 PCA bail cannot be refused as punishment. 5(2) PCA 1947 punishment is up to 7 years which does not fall in prohibitory clause. co accused on bail, bail allowed to present accused PLJ 2013 CRC 16

When rule of consistency would not apply

  • 302/323/404      accused remained proclaimed offender, and hardened and disparate criminal, attacked on police party and murdered constable, prompt fir, specific role, co accused on bail, court held that accused remained proclaimed offender rule of consistency would not apply bail refused PLJ 2011 CRC 905
  • —S. 497–Constitution of Pakistan, 1973, Art. 185(3)–Bail refusal of–Plea of alibi–No such defence at that time–Accused was nominated in FIR–Specific role of raising lalkara was assigned–Accused was declared innocent by the police on the plea of alibi–By applying rule of consistency granted bail to the petitioner–Challenge to–Cancellation of bail was allowed–Assailed–When the accused moved bail before arrest he did not raise plea of alibi, meaning thereby that he had no such defence at that time–To ascertain and evaluate the plea of alibi, the accused had relied upon the evidence of a large number of witnesses–Such exercise cannot be undertaken at that stage, as it requires deeper appreciation of evidence which can only be done at the time of trial, when such witnesses were produced by the accused in the Court and are subjected to cross-examination by prosecution–Leave was refused PLJ 2011 SC 40
  • —-S. 497–Pakistan Penal Code, (XLV of 1860), Ss. 302, 324, 322, 337-G, 279 & 109–Bail, refusal of–Rash and negligent driving–Cause of death of five person besides causing injuries to few others–Rule of consistency–Nature of allegation against accused is to effect that he was driving a vehicle so rashly and negligently that it had caused death of five persons, which was, prima facie, proved on basis of evidence so far collected during investigation, his case was definitely not at par with case of co-accused–If bail is allowed to an accused of such offence, it would amount to issuance of licence to such accused persons, who might cause death of so many persons through the act of rash and negligent driving which is against the spirit of law–Bail was dismissed.  PLJ 2011 SC 662
  •  498 Cr.P.C.-Bail-Anticipatory-Prayer for-Offence u/Ss. 409/109/34 PPC read with Section 5(2) Act II of Prevention of Corruption Act, 1947-There is no case for any humiliation or unnecessary harassment or false involvement has been made out-Prosecution is not motivated with any malice or ulterior motives-Two co-accused were granted bail after arrest while applicant has applied for anticipatory bail-Pre-arrest bail and bail after arrest are based on entirely different principles-Rule of consistency is misconceived-Suppression of tiling earlier bail application and his abscond ence are additional factors which disentitle applicant to grant of discretionary relief-Held: No case for anticipatory bail-Application dismissed.PLJ 1997 Cr.C 1299
  • -S. 497 Cr.P.C.–. 381/411 PPC– Contention that petitioner is entitled to sail with co-accused in the same boat through attraction of rule of consistency as he (co-accused) was admitted to bail by Additional Sessions Judge, that offence u/S. 381- A/411 PPC do not fall within prohibitory clause; that recovery of car stands effected and that in spite of submission of challan trial has not been started Rule of consistency has to be followed by subordinate Court and if it has not been followed, High Court is not bound by order passed in favour of co-accused-Allegation against accused is that he alongwith his co-accused removed/lifted car from road-side which fact fortunately came to notice of owner of car who alongwith his companion and police followed petitioner/accused and he was over-powered it means petitioner was arrested at the spot alongwith stolen car-Held : It is an exceptional case wherein rule that an accused involved in a case not falling within prohibitory clause should not be admitted to bail-Held furthe Petitioner was earlier convicted and chance of repetition cannot be ruled out-Bail refused. PLJ 1997 Cr.C. (Lahore) 1197

Not Absolute Rule

  • It is held by honorable court that rule of consistency is not absolute rule. 1993 PCRLJ 2135
  • It is held by supreme court of Pakistan that grant of bail to one co accused does not justify grant of bail to a person who is otherwise not entitle for bail. PLD 1988 SC 84
  • Superior courts have right to form independent opinion in respect of accused involved in the case, notwithstanding the fact that one of the co accused has been released on bail. Granting bail on rule of consistency does not apply stricto senso when there are more than one accused. 2010 SCMR 1735

Rule of consistency in narcotics case

  • 9c police opinion is not binding upon court, co accused on bail, rule of consistency would apply in appropriate cased. bail allowed to accused PLJ 2011 CRC 802

Conclusion

Similar set of persons bearing not same and identical role in the FIR cannot claim the bail as a matter of right on the rule of consistency because their roles are distinguishable.

Delay in Lodging FIR | Case Laws & Legal Research

Delay in lodging FIR

 Delay is the time consumed more than the time required in the ordinary course of nature to perform a particular act or particular action. It means the more time consumed than the time required to report the matter relating to cognizable offence to the police u/s 154 Cr.P.C., in the ordinary course of nature.

Delay when fatal:

If the delay is not reasonably explained then it would fatal for the case of prosecution.

  • If not satisfactorily explained, it would be considered sufficient to make dent in the prosecution case.
  • Delay in lodging FIR would lead to inference that occurrence was un-witnessed. (2008 SCMR 6)
  • FIR lodged with delay by one day without any explanation case of further inquiry. (1990 P.Cr.L.J 1367, 1994 MLD 1802)
  • Delay of three days of lodging FIR, not properly explained accused admitted to bail. (2008 MLD 397)
  • Delay of eight days in lodging FIR. Alleged abductee leveled allegation of zina against accused, but this solitary statement not believed, bail granted. (2005 MLD 1974)
  • Delay by more than one month fatal. (1987 MLD 1202)
  • Inordinate a unjustified delay in the prosecution of case, being abused of proses of law, a valid ground for grant of bail. (1993 P.Cr.L.J 1986)
  • Delay in FIR, is fatal only when the same is not adequately explained. (2009 P.Cr.L.J 27)
  • FIR lodged after six months of occurrence. Possibility of false involvement not ruled out. Bail granted. (NLR 1984 SD 222)

Delay when not fatal:

Delay in lodging FIR is not fatal if the delay is sufficiently explained and sufficient reasons are given in lodging the FIR. Higher courts have settled many precedents wherein delay in lodging FIR is not considered fatal for prosecution. Some of the cases are given below as:-

  • If the delay is reasonably and plausibly explained then it would not fatal for the case of prosecution. Delay in lodging FIR is not always fatal to prosecution case it only gives rise to suspicion which puts the courts on guard to look to possible motive and explanation of delay. (AIR 1973 S.C 1)
  • The question of delay in lodging FIR is to be considered in the background of human factors involved such as the time required by the persons concerned to compose themselves before deciding on their courts of action. (1981 Cr.LJ 1701, AIR 1981 S.C 2073).
  • Grief sticken kith and kin may not rush immediately to give report to police. Unless there are indications of fabrications, the court cannot reject the prosecution version substantiated by evidence, merely on the ground of delay in lodging FIR. (1990 Cr.LJ 2681, AIR 1991 S.C 63)
  • Delay of seven eight days, serologist report showing presence of spermatozoa in the vaginal of the prosecutrix, scientifically proving that prosecutrix was subjected to sexual intercourse. Delay not considered fatal. (PLD 2003 S.C 863).
  • Delay of 24 hours in lodging FIR explained stating that the complaint have been intended to his injured brother, accused attributed specific role along with motive bail refused. (2005 SCMR 1496)
  • No adverse inference can be drawn against prosecution on account of delay in recording FIR, when such delay had been adequately explained. (2005 Cr.LJ 955)

Causes of the delay:

Some of the natural reasons which causes delay in reporting the matter to the police station are as under:-

  • In the rap cases women are slow and hesitant to complain of such assaults and if the prosecutrix happens to be a married woman she will not do anything without informing her husband.
  • Complainant or victim may be resident of remote area and the occurrence also took place in the remote areas which have no basic facilities of transportation or conveyance etc.
  • Road for transportation may not be metaled.
  • Sometimes injured may have serious injuries which required to be transferred to the hospital for treatment on emergency basis as to save the life his primary interest.
  • There might be chances of being unconscious due to shock of murder of kith and kins the complainant could not report the matter in time.

Conclusion:

To conclude I can say that delay in lodging FIR is fatal as it raised suspicion of afterthought, preponderance, pre-meditation and concoction. But, it is not fatal if the delay is sufficiently and reasonably explained.

Bail After Arrest in Pakistan | Research Paper with Case Laws

Bail After Arrest

Defined: Bail means to release a person from the custody of police and delivered him into the hands of surety, who undertakes to produce him in the court whenever to require to do so.

(2007 YLR 1582)

Cases in favour of prosecution

No doubt offence under section 489-F P.P.C. does not fall within the prohibitory clause of section 497 Cr.P.C., but it is not a rule of universal application to grant bail in each and every case. Grant of bail is discretionary and the discretion out to be exercise judicially. Accused remained absconder for long six years have caused not only financial loss but mental and physical agony to the complainant and his family. Long abscondence of accused is entitled him to the concession of bail.

(2010 P.Cr.L.J, 1099)

Grant of bail in cases not following within the domain of prohibitory clause or proviso to section 497 Cr.P.C., is not a role of universal application. Each case has to be seen through its own facts and circumstances grant of bail no doubt is a discretion to a court but its exercise cannot be arbitrary, fanciful or perverse.

(2009 SCMR 174)

For an offence punishable with death or transportation for life, an accused charged with the same is not to be released on bail if there are reasonable grounds for believing that he has committed such an offence. The onus is on the prosecution to disclose those reasonable grounds and the courts has to examine the data available in the case to find out whether such reasonable grounds exist, to connect the accused person with the crime alleged against him.

(PLD 1972 SC 81)

Fugitive from law and courts losses some of the normal rights granted by the procedural as also substantive law. Unexplained noticeable abscondence entitles an accused to the concession of bail.

(2008 YLR 2086)

Court may decline to admit an accused to bail if a recognized exceptional circumstance is available for such refusal.

(2005 YLR 1215, PLD 1997 SC 545 ref)

Principles laid down by Supreme Court in Bail after Arrest

The scope of bail u/s 497 Cr.P.C. has been thoroughly discussed by the Supreme Court of Pakistan in PLD 1995 S.C 34, following the principle as laid down by the apex court this section divides non-bailable offence into two categories, i.e:-

(i)                Offence punishable with death, imprisonment for life or imprisonment for 10 years and

(ii)              Offences punishable with imprisonment for less than 10 years.

Grant of bail in non-bailable offence following in second category punishable with imprisonment for less than 10 years is a rule and refusal and exception. Bail in cases falling in the second category will be declined only in extra ordinary and exception cases e.g:-

(i)                Where there is likely hood of abscondence of accused

(ii)              Where there is apprehension of accused tampering with the prosecution evidence.

(iii)            Where there is danger of the offence being repeated if the accused is released on bail.

(iv)            Where the accused is a previous convict.

(2008 YLR 2717)

Large quantity of charas i.e, 200 kg recovered from the Suzuki pickup which was in possession of the accused at the time of recovery. Witnesses sporting the version of prosecution punishment provided for the offence fell under the prohibitory clause of S.497 Cr.P.C., embargo contained in sub-section 1 of S.51 CNSA fully attracted, bail refused.

(2010 Pcr.L.J 272)

Conclusion

To conclude, bail of a person can be dismissed if there is no malafide / false implication by the complainant party. Furthermore, bail application can be dismissed in case of apprehension of abscondence, tempering with prosecution evidence, repetition and previously conviction.

It is not hard and fast rule that the case not fall in prohibitory clause. So bail can be dismissed in such like cases.

Each case has its own facts and circumstances and to be decided on its own merits.

State Case & Complaint Case | Legal Research Paper

State Case

It is an established rule that every offence which is committed is against the state. The state will prosecute that person for committing the offences against the society. To set the criminal law into motion FIR is registered u/s 154. Thereafter, that case becomes a state case. Then investigation be got conducted and report under section 173 Cr.P.C., be submitted through public prosecutor in the court. The state case is prosecuted through public prosecutor.

Complaint Case

The allegation made orally or in writing to a magistrate with a view to his taking action under Cr.P.C., that some person whether known and unknown, has committed an offence. But it does not include the report of police officer.

No role in complaint case by prosecutor.

1984 P.Cr.L.J 438 i.e:-

In complaint case prosecution will not be conducted by prosecutor.

Tackling Different Situations

  • To proceed with the criminal case after filing of private complaint; especially when state case is entrenched in its own footings, is nothing but to flow in a vast and deep ocean. For its flow, courts remained playing their role of sailboards to the yacht of criminal case with the passage of time by its verdicts.
  • Let us analyze the situation by discussing the verdicts of different courts regarding tackling different situations:
  • When version of the complaint and state are different and with different set of accused persons.
  • When the set of accused persons and version set out in both the cases are same.
  • When the set of accused persons are technically same.
  • Whether copies under section 265-C Cr.P.C. can be delivered to accused in case of proceedings in private complaint.
  • Challan case and complaint case have been filed by different parties containing different versions against different accused persons.
  • Trial of the cases of different versions when complainant party is made accused.
  • For the first time in the sail of this situation, August Supreme Court of Pakistan tried to tackle the situation in a decision of full bench headed by A.R. Cornelius, C.J. in a case Nur Elahi Versus State and others cited in PLD 1966 Supreme Court 708

Brief Facts of Nur Elahi Case

The matter was reported to the Police that murder of one, Muzaffar Piracha, was committed by accused namely Ch. Zafar-ul-Haq, Ikram-ul-Haq and Nawaz-ul-Haq. But the police during investigation prosecuted one, “Ch. Ikram and Banaaras, as the accused. The accused Ch. Zafar-ul-Haq and Nawaz-ul-Haq were placed in column No. 2 of report under section 173 Cr.P.C., with blue ink. Being aggrieved, the complainant namely Nur Elahi filed a complaint with version of FIR. During proceedings of the case, the proposition arose that how the challan case and complaint case to be proceeded and dealt with. Later on, the proposition resolved by Supreme Court of Pakistan.

PLD 1966 S.C 708

Majority view

  • The complaint case is to be tried first.
  • The witnesses in the list annexed with the complaint case shall be examined by the court as PWs.
  • The witnesses in the challan case shall be examined by the court as CWs u/s 540 Cr.P.C.
  • The opportunity to cross examination shall be given to both the parties.
  • In case of conviction in complaint case:-
  • The public prosecutor may consider that whether he should withdraw the state case under section 494 or not.
  • In case of acquittal in complaint case.
  • If the public prosecutor considers that the challan case has not been seriously damaged by first trial in complaint case, the state case may be taken up for trial.

Dissenting view by B.Z. Kaikaus (J)

  • The challan case and complaint case be consolidated and tried singly.
  • Reasons:
  • There is no bar in Cr.P.C. as to joint trial.
  • Every trial before a court of sessions is to be conducted by public prosecutor.

Syed Muhammad Hussain Shah Vs Abdul Hamid and others

1981 SCMR 361.  

Complaint was filed by dropping one  of the accused person from FIR and adding of another accused in complaint is also amounted to different set of accused persons and complaint case shall be taken up first

Zulfiqar Ali Bhutto V/s The State

PLD 1979 S.C 53

In case of filling of complaint with the similar version and set of accused persons then there is no need to proceed with the complaint case first then the state case can be taken up first and decided.

Raja Khushbakhtur Rehman and another Vs The State

1985 SCMR 1314

No necessity for a separate trial of the two cases when, technically speaking there were neither two sets of accused nor different versions nor any additional evidence to be examined by the complainant. Only one additional accused was nominated by the police during investigation even then it was held that there need no separate trial of complaint and state case.

Dictum of Nur Elahi case was also followed in number of cases

(PLD 1986 S-C 737)

(Muhammad Dildar Malik V/s Tahir Mehmood, 1998 SCMR 652)

  • Where the version in the complaint case and challan case are different, the sets of accused also not being the same, the decision in Nur Elahi’s case would be more attracted.

Opinion of High Courts

(2002 YLR 1714) i.e:-

  • If the challan and complaint case, having different set of accused, different versions in both cases, then both cases should be consolidated. Complaint case should be taken up first and after examining witnesses in complaint case, court would summon remaining witnesses mentioned in calendar of witnesses in challan case as CWs (court witnesses).

In case of different parties and different versions

Mst. Haleema Bibi V/s The State

2008 YLR 1144 i.e:-

  • If challan case and complaint case have been filed by two different parties containing the complaint case and the challan case are to be held simultaneously and side by side and not one after the other.

Atta Jilani case:

1980 P.Cr.L.J 901 i.e:-

  • If story in the challan case and complaints case are same but number of accused differs then,
  • Both case be consolidated and tried together.
  • First taken up the case in which larger set of accused is mentioned.
  • The witnesses not mentioned in larger set of accused case be examined as CWs in larger set of accused.
  • If the case tried first succeeds or fails, the other will not be taken up later.

Manzoor Akbar Turk case:

2008 MLD 728 i.e:-

  • Challan and complaint case be dealt independently.
  • Copies to be supplied separately under section 265-C(1) & 265-C(2).
  • The trial court will pass a speaking order before framing of charge that what procedure would be adopted by him during trial i.e:-
  • Be tried independently or consolidated manner.
  • If different set of accused, the rule of Nur Elahi’s case to be followed.

Conclusion

To analyze, after perusing thoroughly:

  • Question arises that whether the satisfaction of subject/citizen is prime concern for the state?

I am of the view that if the subject is aggrieved then the state will satisfy the subject up to the utmost effort. Being aggrieved from the state case, one can file a complaint case then the state will not pursue the challan case until the satisfaction of the complainant.

  • Again question arises, whether the citizen have no trust upon state agencies?

Yes, I am of the view that the state should create such circumstances as everyone should have a blind believe upon state agencies.

  • Furthermore, in case of acquittal in complaint case, if prosecutor pursue the challan case (in which the version is same and set of accused same) for trial, then question arises that it would not amount to double Jeopardy u/s 403 Cr.P.C. and under the constitution as well or it would not against the UN charter of universal declaration?

I am of the humble view that if the prime object of the state is to satisfy the subject then the state should not pursue the state case furthermore in the interest of justice and fair trial. But, if the prime object is to punish the offender who has committed the offence against the society then state has to restore trust of public upon state agencies and ultimately the filing of complaint case would be discouraged. And the court by applying principle of double jeopardy should also disallow the second trial.

  • Another question arises, if public prosecutor, after the conviction in the complaint case, withdraw its case and in appeal either in high court or in Supreme court if version of the complaint case found to be false and that of state case to be true, then what would happen to the occurrence when public prosecutor has already withdrawn its state case.
  • Another question arises that if set of accused not totally different then in case of acquittal in complaint case if the challan case to be pursued in which some accused are same as were in complaint case then to the extent of those accused principle of double jeopardy would not be attracted/applicable? I have the humble view that principle of double jeopardy to the extent of those same accused would be attracted.
  • Another pertinent question arises that whether the court can orders for consolidation of complaint and challan case and detachment of certain documents annexed with challan case and be annexed with complaint case?

I am of the view that consolidation of complaint case and challan case is an alien concept to the Cr.P.C. and furthermore, court cannot order for detachment of certain documents annexed with challan case and be annexed with complaint case.

  • Here, another question arises that when proceedings in the complaint case is taken up first then at the time of examination of the prosecution witnesses if some document is to be exhibited is available with challan case then only photo state copy of that document is available then as per law same cannot be exhibited in the availability of the original which is with the state case. Since the same have not been exhibited because the trial in the challan case have not commence then there is bar to obtain its attested copy. In this situation what should be done; as there is no procedure have been devised for the same.
  • By applying the principle of the Atta Jillani Vs state when proceedings of both the complaint and state cases are consolidated for the purpose of recording evidence then if complainant, by joining hands with accused persons, resile from their statements then the case of the state will also die with the complaint case, In this situation can complainant and his witnesses be got declared hostile and can they be cross-examined by prosecutor?
  • When proceedings of both the case are consolidated then what would be the role of prosecutor?
  • When both the cases are consolidated then which of the document is to be exhibited in complaint case and which in state case?

Abscondence | Laws of Pakistan about Abscondence & Case Laws

Abscondance

Reference S, 87 Cr.P.C

To keep hide oneself in order to avoid the process of law.

According to Webster’s English Dictionary

Abscond means:-

(i)    To hide, withdraw, or be concealed.

(ii)  To depart clandestinely, to steal off and secret one’s self.

Scope

Accused having become fugitive from law loses his normal rights under substantive law.

Absconder

Is a person who is intentionally evading and avoiding service of notice, summons and warrants issued against him.

Reference sec. 87, 88 and 512 Cr.P.C.

Definition of Abscondance

Abscondence is not a mere term of art, but is a legal term which under the statutes has to be proved by the prosecution like any other fact. The prosecution in the first instance must prove that the summons or warrants were issued against the appellant but the same could not be served as he was deliberately avoiding service by hiding himself.

If the court was satisfied that the appellant was concealing himself to avoid services of summons and warrants, then action under sec, 87 or sec 88 could be taken against him. It is only after a proclamation under sec 87 and sec 88 is obtained that a person can legally be said to have absconded. In other wards the prosecution has to prove by positive evidence that an accused person has really absconded.

Categories of Abscondece

There are two types of categories of abscondence.

(i)    The person who escapes and becomes absconder with guilty of mind.

(ii)  The person who could be innocent, but they abscond being scared of the repercussions of a criminal case lodged against them.

Abscondence can be considered as conviction

Abscondence by itself, no doubt, is not sufficient for conviction of accused, but it is a strong piece of corroborative evidence of the other direct and circumstantial evidence in the case. (MLD 2000 page 605)

Deny in concession of Bail

Initiating of proceeding u/s 87/88 Cr.P.C is not enough to deny the concession of bail. (YLR 2000 Page 600)

Conduct of person absconded

Conduct of person absconding after the commission of offence is evidence of show that he was concerned with the offence. (NLR 2000 Sc.J 707)

Supporting evidence

It is a supporting evidence of is guilt and it may be consisted with the guilt or innocence of accused which is to be decided keeping in view the overall fact of the case. (2009 SCMR 803)

Long abscondence

Long abscondence of accused without any plausible and reasonable explanation indicates his gilt. Wen considered in conjunction with and circumstantial evidence of is being apprehended and then such deposition can be given n evidence only if deponent is deed, or his evidence cannot be procured without any amount of delay, expose of inconvenience. (2009 SCMR 471)

Trial in absentia

Trial is absentia normal trial cannot be held in absentia, the cannot merely record the evidence against the absconding. However, when accused challaned in absentia and trial in absentia permissible order the relevant law. Court adopting course suggested, prosecution is debarred from raising objection.

Court must be judicially satisfied on the basis of evidence that the accused changed therein had abscond and there was no prospectus of his arrest in the near future and secondly on the request of such accused it must be also proved for the satisfaction of the court that the witness whose deposition recorded and preserved u/s 512 Cr.P.C is either dead or incapable of giving evidence or his attendance cannot be procured without any unreasonable delay, expansion or inconvenience.

Conclusion

To conclude I can say that for declaring a person as proclaimed offender, there must be proceeding under section 87 and 88 of Cr.P.C. without proceeding of 87 and 88 of Cr.P.C., trial cannot be commenced even to the extent of other present accused. After completing the proceeding under the above said sections, challan under section 512 Cr.P.C be submitted to the court. Court would declare the person as proclaimed offender after legal formalities and would preserve / record evidence of witnesses.

Abduction Laws in Pakistan | Legal Research Paper

Definition of Abduction according to Legal Dictionary

The act of restraining another through the use or threat of deadly force or through fraudulent persuasion. The requisite restraint generally requires that the abductor intend to prevent the liberation of the abductee. Some states require that the abductee be a minor or that the abductor intend to subject the abductee to prostitution or illicit sexual activity.

Abduction defined in section 362 PPC

Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

Ingredients of Abduction

1-by force compels

The word force in this section means actual force and not merely show of force or threat of force (AIR 1949 AII 710)

2-by any deceitful means induces

The expression deceitful includes the inducing of girl to leave her guardian’s house on a pretext (AIR 1951 Raj 33)

Difference between kidnapping and abduction

Kidnapping as defined in section 360 and 361 PPC is by itself a substantive offence punishable u/s 363 whereas mere abduction as defined in section 362 is by itself is not substantive offence. It is only where the abduction is made in the circumstances stated to section 364, 365, 366, 367 and 369 that it is an offence.

  • Section 364: kidnapping or abducting in order to murder
  • Section 364-A: Kidnapping or abducting a person under the age of ten
  • Section 365: Kidnapping or abducting with intent secretly and wrongfully to confine person
  • Section 365-A: Kidnapping or abduction for extorting property, valuable security etc.
  • Section 365-B: Kidnapping, abducting or inducing woman to compel for marriage etc.
  • Section 367: Kidnapping or abducting in order to subject person to grievous hurt or slavery etc.
  • Section 369 Kidnapping or abducting child under ten years with intent to steal from its person

Abduction by Father and View of Superior Courts in Pakistan

Although the Pakistan Penal Code recognizes kidnapping (whether from legal guardianship or from Pakistan) and abduction as crimes, the superior courts of Pakistan have consistently interpreted the relevant provisions to exclude abduction by a parent, particularly when the abducting parent is the father, because in their view “…father of a child being always a natural guardian along with the mother, can never be ascribed or attributed the offence of kidnapping of his own child….” (Muhammad Ashraf v. SHO and others 2001 P Cr. L J 31). While this view may exonerate the father from penal consequences it cannot protect him from actions for the production and custody of the child.

The problem of child abduction is most acute between the UK and Pakistan due to the high percentage of marriages between Pakistani and UK nationals whether residing in Pakistan or the UK. Seeing the pain and anguish caused to children who become victims of such cases, the superior judiciary of the two countries took it upon themselves to tackle this issue and in January 2003 signed the UK Pakistan Judicial Protocol on Children Matters in order to establish a formal mechanism that aggrieved parents could invoke in case a child of a mixed marriage was abducted from one to the other country.

Like the Convention, the Protocol stipulates that the courts of a country in which the child is habitually resident should decide the issue of custody. The Protocol adds that this decision should be made without regard to the nationality, culture and religion of either parent. The Protocol is unbiased and allows parents to invoke the jurisdiction of Pakistani courts if the child is habitually resident in Pakistan and of UK courts if UK is the child’s normal home. The guiding principles of the Protocol are safeguarding the interests of the child and preventing an abducting parent from taking advantage of his illegal act and dictating the jurisdiction in which the question of the child’s welfare may be decided.

Despite voluntarily accepting the Protocol, Pakistani judiciary has remained reluctant in following it. In a departure from this judicial silence, Justice Saqib Nisar in his judgment in what is known as “the Misbah case” followed the Protocol in principle, however he too did not actually refer to it. It is perhaps unfortunate from a purely legal perspective that the parties arrived at a compromise in an appeal before the Supreme Court and the Protocol did not become a binding precedent for all other courts in Pakistan.

Judges in Pakistan may well argue that the Protocol is not necessary because they are fully capable of determining the welfare of a child. While such a claim is indeed borne out by numerous judgments, it fails to take into account that the issue here is not of the competence of judiciary but of creating certainty in the legal system by dealing with cases between Pakistan and the UK consistently in accordance with the Protocol and in fact extending the principles to any transnational abductions.

The issue is also about providing a level playing field to both parents who are equal stakeholders in the welfare of their child rather than making it difficult, if not impossible, for one parent to approach the courts. Most importantly, the issue is of rescuing the child from being a mere pawn in the parental tussle, and recognizing him as an individual who has the legal right to have his welfare determined in accordance with the laws, standards and values of the country in which his parents — until their marital discord led them to think otherwise — themselves chose to raise him.

Abduction & Famous Case laws

  • There can be no abduction when no force is used, or inducement made by deceitful means in taking away a person. (AIR 1971 SC 2064)
  • An essential ingredient in definition of abduction is that a person must have been induced to go from any place. In the absence of this element there can be no abduction. (AIR 1925 Lah. 512)

Abduction Case laws in Favor of Prosecution

  • In the case of grownup woman it would be an offence to carry her away by force against her own will even with the object of restoring her to her husband. (AIR 1942 Lah. 89)
  • Abductee rightly picked up all the three accused in the identification parade. No motive for false implication. Incriminative recoveries form the accused including the ransom amount, pistol and live cartridges, mobile phone and motor cycle of abductee, further connected the accused with the commission of offence. (2007 P.Cr.L.J 1097)
  • Abduction is done by some of the culprits, place of confinement is guarded by others and ransom is extorted by one or two of them. Object of all the culprits being to extort money, punishment could be the same irrespective of the role played by each of them. (2010 P.Cr.L.J 1281)
  • Offence of abduction and murder accomplished by more than one persons while act of murder performed by one of them. The act was a joint act intended to be accomplish by the three men in cooperation with each other no hesitation in saying that the even though one of the accused merely stood by the outer wall from where he watched everything and did only as much as was required from him up to the time the first knife blow was struck, he was a person engaged in the performance of the act of abduction within the meaning of section 34 PPC. (PLD 1960 SC 254)
  • Recovery of abductee from the accused, no enmity between the accused and the police or the complainant party, evidence fully corroborated. Charge of abduction held proved. (PLD 1983 FSC 196)
  • Abduction is done by some of the culprits, place of confinement is guarded by others and ransom is extorted by one of two of them. Object of all the culprits being to extort money, punishment could be the same irrespective of the role played by each of them. (2010 P.Cr.L.J. 1281)