Conviction in absentia by Anti Terrorism Court

 PLJ 2015 Cr.C. (Karachi) 98 (DB)

Present: Sadiq Hussain Bhatti & Abdul Maalik Gaddi, JJ.

KHANZADO alias KETOO SABZOI--Appellant

versus

STATE--Respondent

Crl. Appeal No. D-83 of 2012, decided on 25.11.2014.

Anti-Terrorism Act, 1997 (XXVII of 1997)--

----Ss. 21-L, 6/7, 25 & 10/11(a)--Constitution of Pakistan, 1973, Art. 9/10(1)--Conviction and sentence--Challenge to--Proceedings under Section 87 & 88, Cr.P.C. were initiated for the purpose of proceedings with the case in absentia, thereafter the charge was framed for other offences except Section 21-L of the Anti-Terrorism Act, 1997. The record further reveals that no evidence was recorded to prove the ingredients of Section 21-L of Anti-Terrorism Act, 1997. No point for determination concerning the offence u/S. 21-L of Anti-Terrorism Act, 1997, was framed in the judgment of the trial Court; there was no discussion in the impugned judgment of the trial Court with regard to any evidence available on record. In cursory manner, the trial Court convicted and sentenced the appellant for the said offence, thus the procedure adopted by trial Court in convicting and sentencing the appellant was not warranted by law and illegal--Admittedly, the appellant has been acquitted from the charge of the offences framed against him u/S. 365-A, 368, 148, 149, P.P.C., read with Section 6/7 of Anti-Terrorism Act, 1997. No charge u/S. 21-L of Anti-Terrorism Act, 1997, has been framed against him, but despite of this fact, appellant was convicted in his absentia--Trial of the appellant in absentia, undertaken by trial Court was violative of Article 9 and 10 (1) of' Constitution of Islamic Republic of Pakistan, 1973, and Section 10 and (11-A) of Anti-Terrorism Act, 1997, thus conviction and sentence cannot be allowed to sustain. Moreover the appellant was not afforded an opportunity of hearing and thus he was condemned unheard, which was contrary to the principle of natural justice--As observed above the appellant has been acquitted in main offences alongwith other accused on same evidence, therefore, under the facts and circumstances of the case, no useful purpose will be served by remanding the case to trial Court for re-trial.

                                                                  [Pp. 101 & 102] A, B, C & D

2008 SCMR 951 & 2009 MLD 1998 Kar. Ref.

Mr. Rafique Ahmed K. Abro, Advocate for Appellant.

Mr. Imtiaz Ali Jalbani, A.P.G. for State.

Date of hearing: 25.11.2014.

Judgment

Abdul Maalik Gaddi, J.--The appellant/accused Khanzado alias Ketoo son of Hussain Bux Sabzoi alongwith other accused was tried by the learned Judge, Anti-Terrorism Court, Jacobabad, in absentia in Special case No. 52/2010, Re-State Vs. Saboo alias Chachoo and others, arising out of Crime No. 282/2010, registered at Police Station A-Section Kandhkot, under Sections 365-A, 368, 148, 149, P.P.C., and Sections 6/7 of the Anti-Terrorism Act, 1997. After full dressed trial, appellant and co-accused named in the challan sheet were acquitted of the charge, by Judgment dated 15.2.2012. However, appellant Khanzado alias Ketoo on account of his absconsion was convicted under Section 21-L of the Anti-Terrorism Act, 1997, and sentenced to five years R.I; his moveable and immovable properties were forfeited.

2.  Brief facts of the case are that on 18.9.2010, at 10.30 hours, complainant Shashpal lodged F.I.R against unknown accused, stating therein that on 11.9.2010, at 8.00 a.m. when he alongwith his brother Giyano and his neighborer Kalash were available in front of their house. In the meantime, his son Dheeraj Kumar aged six years went out the house for purchasing sweets from the shop in neighborhood; they saw two persons with open faces on motorcycle CD-70 without number duly armed with Kalashnikov, and pistol stopped their motorcycle near to his son and they by show of force kidnapped his son Dheeraj Kumar for ransom.

3.  After usual investigation, challan was submitted against accused Saboo alias Chachoo, Sheesho alias Chitra and Ghulam Nabi under Section 365-A, P.P.C. read with Sections 6/7 of Anti-Terrorism Act, 1997. Present appellant Khanzado alias Ketoo and co-accused Hajoo, Naboo, Ali Bagh, Shahnawaz, Looto and Ganjoo were shown as absconders. N.B.Ws: were issued against them by trial Court, which returned un-executed. Case was ordered to proceed under Section 512, Cr.P.C. Proceedings under Sections 87 & 88, Cr.P.C. were concluded against them.

4.  After framing of charge, the case proceeded before trial Court, on conclusion of the trial, after hearing the parties counsel, all accused including present appellant were acquitted of the charge under Section 365-A, P.P.C., read with Sections 6/7 of Anti-Terrorism Act, 1997. However, trial Court convicted appellant under Section 21-L of Anti-Terrorism Act, 1997, on account of his absconsion for a term as stated above. Relevant portion of the Judgment of trial Court is reproduced as under:

"From the above discussion Point No. 1 to 3, I am of the humble view that the prosecution had failed to bring home the charge against any of the accused for commission of rioting, abduction or ransom, if any, paid or demanded by any of the accused. Therefore, by extending benefit of doubt the accused Saboo alias Chachoo, Sheesho alias Chittra and Ghulam Nabi including absconding accused Hajoo, Naboo, Ali Bagh, Shah Nawaz alias doctor, Looto, Ganjoo and Ketto alias Khanzado are acquitted under Section 265-H(I), Cr.P.C. Accused Ghulam Nabi present in Court, his bail bond is cancelled and surety stand discharged. Accused Saboo and Sheesho are produced in custody; they are remanded back with release warrant to jail authorities, with directions that they may be set at liberty, if they are not required in any other custody case.

From the circumstances of the case, it appears that accused Hajoo, Naboo alias Nabi Bux, Ali Bagh, Shah Nawaz alias Doctor, Looto, Ganjoo and Ketto alias Khanzado are absconding in this case. I am satisfied with deliberate abscondance of these accused, each of them is convicted under Section 21-L of Anti-Terrorism Act, 1997, and each of them is sentenced for (five years) with forfeiture of their moveable or immoveable property, therefore, perpetual warrants be issued against these absconding accused."

5.  Thereafter, appellant Khanzado alias Ketoo through the instant appeal approached to this Court for setting aside the conviction and sentence recorded against him by trial Court in his absentia.

6.  Mr. Rafique Ahmed K. Abro, learned Advocate for the appellant has argued that conviction of the appellant under Section 21-L of Anti-Terrorism Act, 1997, in his absentia, is violative of Article 9 of the Constitution of Islamic Republic of Pakistan, 1973. He further argued that though the appellant has been acquitted in main offences, but he was convicted in his absentia under Section 21-L of Anti-Terrorism Act, 1997, without hearing him which is illegal. Reliance has been placed upon the case of Ali Hassan vs. The State (2009 MLD 1198 Karachi).

7.  Learned A.P.G. has conceded the above legal position and has not supported the impugned judgment passed by trial Court in respect of conviction and sentence awarded to the appellant for an offence under Section 21-L of Anti-Terrorism Act, 1997.

8.  Having heard the learned counsel for the parties and perusing the record, we find that the proceedings under Sections 87 & 88, Cr.P.C. were initiated for the purpose of proceedings with the case in absentia, thereafter the charge was framed for other offences except Section 21-L of the Anti-Terrorism Act, 1997. The record further reveals that no evidence was recorded to prove the ingredients of Section 21-L of Anti-Terrorism Act, 1997. No point for determination concerning the offence under Section 21-L of Anti-Terrorism Act, 1997, was framed in the judgment of the trial Court; there is no discussion in the impugned judgment of the trial Court with regard to any evidence available on record. In cursory manner, the learned trial Court convicted and sentenced the appellant for the said offence, thus the procedure adopted by trial Court in convicting and sentencing the appellant is not warranted bylaw and illegal.

9.  We have also gone through Section 21-L of Anti-Terrorism Act, 1997. For the sake of convenience it would be appropriate to reproduce the said section, which reads as under:

"Section 21-L. Punishment for an absconder.--Whoever being accused of an offence under this Act, absconds and avoids arrest or evades appearance before any inquiry, investigation or Court proceedings or conceals himself, and obstructs the course of justice, shall be liable to imprisonment for a terms, not less than [five years] and not more than [ten years], or with fine or with both]".

10.  Admittedly, the appellant has been acquitted from the charge of the offences framed against him under Sections 365-A, 368, 148, 149, P.P.C., read with Section 6/7 of Anti-Terrorism Act, 1997. No charge under Section 21-L of Anti-Terrorism Act, 1997, has been framed against him, but despite of this fact, appellant was convicted in his absentia.

11.  In view of above, we feel that trial of the appellant in absentia, undertaken by learned trial Court was violative of Articles 9 and 10 (1) of' Constitution of Islamic Republic of Pakistan, 1973, and Sections 10 and (11-a) of Anti-Terrorism Act, 1997, thus conviction and sentence cannot be allowed to sustain. Moreover the appellant was not afforded an opportunity of hearing and thus he was condemned unheard, which is contrary to the principle of natural justice. On this aspect of the case we are supported with case of Mir Akhlaq Ahmed and others Vs. The State (2008 SCMR 951), and case of Ali Hassan Vs. The State (2009 MLD 1198 Karachi).

12.  As observed above the appellant has been acquitted in main offences alongwith other accused on same evidence, therefore, under the facts and circumstances of the case, no useful purpose will be served by remanding the case to trial Court for re-trial.

13.  In the light of the above discussion, this appeal is allowed. The conviction and sentence awarded by trial Court against the appellant by judgment date 15.2.2012, in his absentia, are set aside and he is acquitted. The appellant is in custody, he shall be released forthwith, if not required in any other case.

14.  This appeal was allowed by our short Order dated 25.11.2014, and appellant was acquitted. These are the reasons of short order.

(A.S.)    Appeal allowed

PLJ 2018 Islamabad 199

Present: Mohsin Akhtar Kayani, J.

MUHAMMAD AFZAL KHAN--Petitioner

versus

CHAIRMAN ARBITRATION COUNCIL DISTRICT COURT, ISLAMABAD, etc.--Respondents

W.P. No. 470 of 2017, decided on 29.12.2017.

Constitution of Pakistan, 1973--

----Art. 199--Muslim Family Laws Ordinance 1961, Ss. 7(3) & 8--Pronouncement of talaq--Delegated right of talaq, Exercise of--Certificate of effectiveness of talaq not issued by Chairman Arbitration Council--Failure of reconciliation proceedings--Dismissal of application filed by petitioner--Daughter of petitioner was married to private respondent, had been delegated right of divorce in Column 18 of Nikah Nama, which she exercised and consequently filed application before Chairman Arbitration Council for effectiveness of Divorce--Chairman dismissing application--Challenge to--Petitioner contended that after expiry of 90 days from talaq, it was incumbent upon Chairman to issue certificate of effectiveness of divorce but instead proceedings were adjourned for appearance of his daughter, who ultimately died due to terminal disease in UK--Further argued that Chairman Arbitration Council has no authority to withhold issuance of certificate of effectiveness of talaq--Validity-Daughter of petitioner was married with private respondent against a dower of Rs 50,000/- and in column No 18 of Nikahnama, private respondent had delegated right of talaq to his wife--Column No 18 of Nikahnama is very clear and unambiguous and it can safely be presumed that husband had extended his powers of divorce to his wife without any condition and wife could exercise delegated right of divorce without any objection or permission--It is settled proposition of law that divorce pronounced by a party having not been revoked would be effected after expiry of 90 days of receiving of notice by Chairman Arbitration Council--Even failure to send notice of talaq to Chairman Arbitration Council does not render talaq ineffective in Shariat--There is no specific word for pronouncement of talaq under any code of law, however, it is settled law that a person exercising right of talaq has to state his intention in unequivocal terms, through it could be considered that he or she has intention for termination of marriage--Section 8 specifically provides another form of talaq known as delegated right of divorce to wife absolutely or conditionally and either for temporary period or permanent and lays aown procedure provided in Section 7 of Ordinance shall be followed--Chairman Arbitration Council has no authority to refuse acceptance--Arbitration Council is bound to proceed with process provide in Ordinance 1961 after receiving notices of talaq from either party, whereby notice to other party has to be issued and after completion of reconciliation proceedings, if it is found out that reconciliation proceedings have been failed, arbitration council shall issue certificate of effectiveness of talaq on expiry of 90 days--Petition allowed.       [Pp. 203, 204 & 212] A, B, C, D & F

Words & Phrases--

----Definition--Muslim Family Laws Ordinance 1961, S 7(3)--Pronouncement of talaq--“Talaq” defined & explained--Schools of Thoughts--Talaq means to release from a relation from a relation or a contract as per different schools of thoughts--Every Muslim husband can pronounce three talaqs to his wife, where after relationship of husband and wife ceases to exist and other conditions for executor of talaq is to be sane and major while pronouncement of talaq--When any party pronounces and executes three talaqs, same is called irrevocable talaq under Shariah and intention of parties has to be considered for final termination of marriage.               [P. 204] E

Constitution of Pakistan, 1973--

----Arts. 4, 10-A & 199--Muslim Family Laws Ordinance 1961, Ss. 7(3) & 8--Purpose of Arbitration Council & reconciliation proceedings stated--Death of executor during reconciliation proceedings--Arbitration Council is bound to proceed with the process provided in Muslim Family Laws Ordinance, 1961 after receiving notice of Talaq from either party, whereby notice to other party has to be issued and after completion of reconciliation proceedings, if it is found out that reconciliation proceedings have been failed, the Arbitration Council shall issue certificate of effectiveness of Talaq on expiry of 90 days--Purpose of Arbitration Council is to hold reconciliation proceedings between spouses and if matter is not reconciled, Chairman Arbitration Council has to issue certificate of effectiveness of talaq after expiry of 90 days, whereas, it is prerogative and authority of person, who files application along with notices of talaq for issuance of certificate to withdraw by applicant, chairman Arbitration Council cannot refuse to issue certificate of effectiveness of talaq, especially when other side, does not appear for reconciliation proceedings--Conduct of Chairman regarding non issuance of certificate even after expiry of 90 days is contrary to law and same is in violation of Articles 4 & 10-A Constitution, whereby all persons have been given due protection of law with assurance that an opportunity of fair trial shall be given to him or her, legislative intent is to be followed in same spirit and no other interpretation is permissible as it would mean to reading down legislative intent and same is also not permissible under rules of interpretation--It is settled proposition of law that if talaq has been pronounced by party and process of Arbitration Council has been adopted under law and during pendency of proceedings, executor of talaq dies before expiry of 90 days, talaq will not take effect--If executor of talaq dies after completion of 90 days process time before Arbitration Council, Chairman Arbitration Council would be under legal obligation to issue certificate of effectiveness of divorce in favour of executor (deceased)--Petition was allowed.

                                                              [Pp. 212 & 215] G, H, I, J & K

Mr. Rashid Hanif, Advocate for Petitioner.

Syed Shafaqat Hussain Shah/Respondent No. 1 in person.

Respondent No. 2 Ex-parte.

Date of hearing: 6.12.2017.

Judgment

Through the instant constitutional petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioner, who is real father of Mst. Shayan Afzal, has assailed the order dated 20.10.2016, passed by Chairman Arbitration Council, F-8, Markaz, Islamabad/Respondent No. 1, whereby application of Mst. Shayan Afzal for issuance of certificate of effectiveness of Talaq filed on 21.10.2013 was dismissed.

2.  The facts, in brief, as referred in the instant writ petition are that Mst. Shayan Afzal had entered into marriage with Syed Farrukh Abbas/Respondent No. 2 on 20.03.1989 and she had been delegated unconditional right of Talaq under column 18 of the contract of marriage/Nikahnama. On 21.10.2013, Mst.Shayan Afzal had made an application to the Chairman Arbitration Council/Respondent No. 1 that pursuant to Column 18 of the Nikahnama and vide Talaq Notices, she has exercised her right of divorce to husband. All the three notices were attached with the said application. Chairman Arbitration Council/Respondent No. 1 issued notices to Syed Farrukh Abbas/Respondent No. 2 for appearance on 13.11.2013, 11.12.2013, 01.01.2014 and 15.01.2014 but none appeared on behalf of Respondent No. 2. On 15.01.2014, Respondent No. 1 directed Mst. Shayan Afzal got recorded her statement and adjourned the proceedings to 29.01.2014. That the proceedings were initiated on 21.10.2013 and after expiry of 90 days, it was incumbent upon Respondent No. 1 to issue certificate of effectiveness of divorce but instead of issuing the certificate, Respondent No. 1 adjourned the proceedings till appearance of Respondent No. 2. Mst. Shayan Afzal, who died due to terminal disease in UK on 22.02.2015. On 30.09.2016, the petitioner filed an application before Respondent No. 1 for issuance of divorce certificate in the name of his daughter Mst. Shayan, which was dismissed vide impugned order dated 20.10.2016 with the observation that Mst. Shayan Afzal has died and father had no legal right to pursue the same.

3.  Notices to Respondent No. 2 were issued by this Court through registered post AD and TCS on 08.02.2017 but his service could not be effected. In compliance of order dated 28.01 2017, phone calls were also made on the telephone number of Respondent No. 2 provide by the petitioner, which was not attended. On 15.05.2017 again notice was issued to Respondent No. 2 through registered post AD and TCS but his service could not be effected Resultantly, on 03.07.2017, substituted mode of service was adopted through publication in “The News International” for 24.10.2017. Despite publication none appeared on behalf of Respondent No. 2 on 24.10.2017, whereupon Respondent No. 2 was proceeded against ex-parte.

4.  Learned counsel for the petitioner contended that Chairman Arbitration Council/Respondent No. 1 has no authority to withhold the issuance of certificate of effectiveness of Talaq, especially when the executor of divorce Mst. Shayan Afzal had not withdrawn her application for issuance of certificate of effectiveness of Talaq. It was further contended that the divorce ipso facto has become effective after expiry of 90 days from the date, when, application/notice of Mst. Shayan Afzal was received by Respondent No. 1.

5.  Syed Shafaqat Hussain Shah, Chairman Arbitration Council/Respondent No. 1 has appeared before the Court today and confirmed from his record that the application for issuance of certificate of effectiveness of Talaq alongwith notices of Talaq on the basis of delegated right of divorce in terms of column No. 18 of the Nikahnama was filed by Mst. Shayan Afzal Khan and notices were issued to Respondent No. 2 on 03.11.2013, 11.12.2013 01.01.2014 & 15.01.2014 but none appeared on behalf of Respondent No. 2 Court and finally Muhammad Afzal Khan/father of Mst. Shayan Afzal Khan requested the Arbitration Council for issuance of certificate of effectiveness of Talaq on 17.10.2016 in the name of Mst.Shayan Afzal but the certificate was not issued due to death of Mst. Shayan Afzal. He has been confronted as to whether late Mst. Shayan Afzal ever submitted request for withdrawal of application for issuance of certificate of effectiveness of Talaq, in response to the query, he has replied that no such request was ever submitted by Mst. Shayan Afzal. He has further stated that Mst. Shayan Afzal nominated her father/present petitioner as her Arbitrator, who put appearance on different occasions but neither any intention was shown nor any request was made by him for the withdrawal of application for issuance of certificate of effectiveness of Talaq submitted by Mst. Shayan Afzal. He has not denied that Respondent No. 2 never filed any application challenging the delegated right of divorce.

6.  I have heard learned counsel for the petitioner as well as Chairman Arbitration Council/Respondent No. 1 and gone through the record.

7.  From the perusal of record it has been observed that Mst. Shayan Afzal and Respondent No. 2/Syed Farrukh Abbas got married to each other on 20.03.1989 at Rawalpindi against the dower of Rs.50,000/- and in column No. 18 of the Nikahnama Respondent No. 2 had delegated right of Talaq to his wife Mst. Shayan Afzal with the following words:

The above referred Urdu wording contained in column 18 of the Nikahnama is very clear and unambiguous and it can safely be presumed that husband/Respondent No. 2 had extended his powers of divorce to his wife Mst. Shayan Afzal without any condition and Mst. Shayan Afzal could exercise the delegated right of divorce without any objection or permission.

8.  In order to understand the concept of divorce/Talaq under Muslim Family Laws Ordinance, 1961, Section 7 of the Ordinance is relevant, which reads as under:

“7. Talaq.--(1) Any man who wishes to divorce his wife shall, as soon as may be after the pronouncement of talaq in any form whatsoever, give the Chairman a notice, in writing of his having done so, and shall supply a copy thereof to the wife.

(2)  Whoever, contravenes the provisions of sub-section (I) shall be punishable with simple imprisonment for a term which may extend to one year, or with fine which may extend to five thousand rupees, or with both.

(3)Save as provided in sub-section (5) a talaq, unless revoked earlier expressly or otherwise shall not be effective until the expiration of ninety days from the day on which notice under sub-section (1) is delivered to the Chairman.

(4) Within thirty days of the receipt of notice under sub-section (1), the Chairman shall constitute any Arbitration Council for the purpose of bringing about a reconciliation between the parties, and the Arbitration Council shall take all steps necessary to bring about such reconciliation.

(5)……………

(6)……………”

9.  It is also settled proposition of law that divorce pronounced by a party having not been revoked would be effected after expiry of ninety (90) days from the date of receiving of the notice by the Chairman Arbitration Council under sub-section (3) of Section 7 of the Muslim Family Laws Ordinance, 1961. Even failure to send notice of Talaq to the Chairman Arbitration Council does not render Talaq ineffective in Shariah. Reliance is placed upon Mst. Zahida Shaheen, etc vs. State, etc (NLR 1995 SD 37). There is no specific word for pronouncement of Talaq under any Code of law, however, it is settled proposition of law that a person exercising the right of Talaq has to state his intention in unequivocal terms, through which it could be considered that he or she has intention for termination of the marriage.

10.  I have gone through the first notice of Talaq issued by Mst. Shayan Afzal on 30.08.2013 wherein she categorically mentioned that she has been given right as per column 18 of the Nikahnama and that she declares that she is desirous of dissolving the Nikah and the marriage with Syed Farrukh Abbas, as it was not possible in the circumstances for the parties to live together as husband and wife within the limits prescribed by Islam and she separated herself from Syed Farrukh Abbas/Respondent No. 2 since one and half year i.e. from February, 2012. The notice of Talaq was issued on 30.08.2013 to Respondent No. 2 on the addresses in Doha, Qatar and Pakistan. Similarly on the same date second and third notices of Talaqwere issued to Respondent No. 2 on the addresses in Doha, Qatar and Pakistan, which clearly give impression that late Mst. Shayan Afzal was not interested to reconcile the matter and she issued the same without any consultation or other factors.

11.  Literal meaning of Talaq “ترک” and “حقارت”, which means to release from a relation or a contract as per different schools of thoughts. Every Muslim husband can pronounce three Talaqs to his wife, where-after relationship of husband and wife ceases to exist and the other conditions for the executor of Talaq is to be sane and major while pronouncement of Talaq. In case when any party pronounces and executes three Talaqs, the same is called as “طلاق بائن” or irrevocable Talaq under Shariah and the intention of the parties has to be considered for final termination of the marriage. It has also been settled by the Jurists, that once husband has delegated his right of divorce to his wife, he cannot revoke the same. The same has also been referred in Section 101 Part-II Chapter 12 of (جلد دوم) مجموعہ قوانین اسلام, which is as under:

12.  The concept of delegated right of divorce can also be given effect in three different formations and it has been derived by Muslim jurists and commentators on the followings of the Verses [28 & 29] of Surah Al-Azhab as a main source. The entire concept has been defined in the authoritative judgment of the Federal Shariat Court referred as Khawar Iqbal vs. FOP (2013 MLD 1711), wherein it has been held that:

A prominent religious scholar, Maulana Ashraf Ali Thanwal has also discussed talaq Tafweez in his book, Hila Najiza. He writes that:

۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔۔

13.  The above view has also been reiterated by the Division Bench of the Hon’ble Peshawar High Court in Sajid Hussain Tanoli vs. Nadia Khattak and three others (2013 CLC 1625). wherein it is held that:

“9. Although the power to give divorce belongs to the husband, yet he may delegate the power to the wife or to a third person, either absolutely or conditionally, and either for a particular period or permanently. The person to whom the power is thus delegated may then pronounce the divorce accordingly. Such a divorce is known as “Talaq by Tafweez”. The delegation of option called “Tafweez” by the husband to his wife, confers on her the power to divorce herself. Tafweez is of three kinds:

(a)      Ikhtiar, giving her the authority to divorce herself.

(h)      Amr-ha-yed, leaving the matter in her own hand.

(c)      Mashiat, giving her the option to do what she likes.

All these when analyzed, resolve themselves into one, viz, leaving it in her or somebody else to option to do what she or he likes. The wife cannot sue to enforce the authority alleged to have been given to her, but she sues after she has given effect to it, to make the husband liable for her dower or to restrain him from, seeking conjugal relations.

10.  The Holy Quran being a Code itself provides that it is a simple Deen and anybody, who makes it complicated will stand ostracized. The provisions of Islam in respect of divorce are very simple and balanced. The God has fixed the limits and no one can transgress over it. Here, guidance is sought from Ayat No. 28, 29. Sura Al-Ahzab 33 of Holy Quran wherein it is mentioned as;--

11.  The matter has been interpreted by Maulana Modudi in Tafseer-ul-Quran in the following words:--

14.  Besides the above referred conditions, Section 8 of the Muslim Family Laws Ordinance, 1961 recognizes the concept of delegated right of divorce, which is as under:--

“8.  Dissolution of marriage otherwise than by Talaq.--Where the right to divorce has been duly delegated to the wife and she wishes to exercise that right, or where any of the parties to a marriage wishes to dissolve the marriage otherwise than by talaq the provisions of Section 7 shall, mutatis mutandis and so far as applicable, apply.”

This section specifically provides another form, of Talaq known as
طلاق بائن i.e. delegated right of divorce to wife absolutely or conditionally and either for temporary period or permanent and lays down the procedure provided in Section 7 of the ordinance shall be followed. It has also been settled that the Chairman Arbitration Council has no authority to refuse the acceptance of notice of Talaq and notice sent by the wife to husband would be considered as formal pronouncement of Talaq by wife and such pronouncement would become irrevocable (if all three Talaqs have been pronounced) and would operate Talaq by wife.

15.  The Arbitration Council is bound to proceed with the process provided in Muslim Family Laws Ordinance, 1961 after receiving notice of Talaq from either party, whereby notice to other party has to be issued and after completion of reconciliation proceedings, if it is found out that reconciliation proceedings have been failed, the Arbitration Council shall issue certificate of effectiveness of Talaq on expiry of 90 days. Reliance is placed Mst. Gul Zameeran and 3 others vs. Mst. Aasia (2017 CLC 1431 [Sindh (Sukkur Bench/.

16.  The purpose of Arbitration Council is to hold reconciliation proceedings between the spouses and if the matter is not reconciled, the Chairman Arbitration Council has to issue certificate of effectiveness of Talaq after expiry of 90 days, whereas it is prerogative and authority of the person, who files the application alongwith notices of Talaq for issuance of certificate, of effectiveness of Talaq to withdraw the same before expiry of the 90 days and if the said application is not withdrawn by the applicant (whether the applicant is husband or wife), the Chairman Arbitration Council cannot refuse to issue certificate of effectiveness of Talaq, especially in those cases, when the other side does not appear for reconciliation proceedings. Similarly, if wife (in case of delegated right of divorce) has approached the Chairman Arbitration Council for issuance of certificate of effectiveness of Talaq and notices have been issued to other side, whereas the other side fails to appear before the Chairman Arbitration Council and in the meanwhile the applicant (wife) or the person, who applied, dies then it can only be presumed that the executor of the notices of Talaq had intention to pronounce Talaq as the same can be gathered from the documents of Talaq. Reliance is placed upon Malik Khalid Riaz vs. The Administrator, Arbitration Council, Hafizabad and another (2016 CLC 1522).

17.  It is apparent from record that request for issuance of certificate of effectiveness of Talaq is still in field and no request for withdrawal of the said application was ever been made by Mst. Shayan Afzal Khan (late) during her lifetime. With reference to such admitted facts on record, no other intention can be gathered except that right of divorce was delegated to Mst. Shayan Afzal Khan, which was in field at the time of pronouncement of divorce and the same was exercised with due diligence. Hence, the Chairman Arbitration Council was bound to give effect to the said request. Despite issuance of notices by Respondent No. 1, none appeared on behalf of Respondent No. 2 before the Chairman Arbitration Council, Islamabad, therefore, it was not possible to adopt the reconciliatory mechanism as such the request made by Mst.Shayan Afzal for issuance of certificate of effectiveness of Talaq became absolute.

18.  In present case the deceased Mst. Shayan Afzal, who had issued three notices of Talaq on the same day to Respondent No. 2 on the basis of delegated right of divorce (Talaq Tafweez) as per column 18 of Nikahnama by exercising her right of divorce and requested in writing to Chairman Arbitration Council/Respondent No. 1 for issuance of certificate of effectiveness of Talaq and notices were issued to Respondent No. 2 (husband) by Respondent No. 1 but no one appeared on behalf of Respondent No. 2. Even otherwise from the perusal of record, it has been observed that the parties had already been separated prior to the filing of the application for issuance of certificate of Talaq but the Chairman Arbitration Council kept the matter pending after 90 days, even after one year, the certificate was not issued and in the meanwhile Mst. Shayan Afzal died on 22.02.2015 in UK. The death certificate has also been placed on record. It can safely be presumed that the deceased had no intention to revoke the notice of Talaq. Reliance is placed upon Malik Khalid Riaz vs. The Administrator, Arbitration Council, Hafizabad and another (2016 CLC 1522).

19.  Even otherwise, it is not case of Respondent No. 2 that he had not extended the delegated right of Talaq to Mst. Shayan Afzal and it is settled proposition that Talaq once pronounced would be effective after expiry of 90 days. Reliance is placed upon Sajid Hussain Tanoli vs. Nadia Khattak and 3 others(2013 CLC 1625). It is also settled proposition that under Islamic Law powers to give divorce belong to husband but he can delegate such powers to his wife or third party either absolutely or for particular period or permanently whereas such kind of divorce has been recognized in Section 8 of Muslim Family Law, Ordinance, 1961. Reliance is placed upon Khawar Iqbal through Attorney vs. Federation of Pakistan through Secretary M/o Law and Justice, Islamabad (2013 MLD 1711 FSC). The said procedure is also applicable in the present case and Chairman Arbitration Council has to issue certificate of effectiveness of Talaq after expiry of 90 days from the date of application, whereas record reveals that unnecessary adjournments were granted to Respondent No. 2 by Chairman Arbitration Council but the proceedings were not concluded. Even otherwise, it is not the mandate of law to wait for other person to join reconciliation proceedings even after expiry of 90 days. The very mandate of law is to provide a mechanism under which the parties have to go through the opportunity of reconciliation to settle their differences by way of arbitration mechanism, however when such efforts fail, despite elapse of three months, law presumes that reconciliation is not possible and there is irretrievable breakdown, thereupon the parties are allowed to undo the marriage life and both parties can walk away, if they so wish with dignity and grace, which is the real mandate of law. Reliance is placed upon M. Parnian Arooj vs. Mehmood Sidiq and another (2010 CLC 258 Lahore). In the same judgment, it has further been held by the Hon’ble Lahore High Court that non-service of notice of Talaq has to be considered as a mere irregularity which would not affect the validity of Talaq validly pronounced and communicated as it is the duty of parties to approach Union Council of the area where wife resides, to facilitate her participation in the proceedings, if she so desires and such purpose could adequately be served by service of notice and same is the case with husband who can approach the Union Council of the area where wife permanently resides and the proceedings of the Arbitration Council is to declare the matter under the law or settlement of the marriage dispute in a manner provided under the law. However, all service modes have been applied by the Arbitration Council as well as by this Court in the instant writ petition but Respondent No. 2 never turned up, who has been proceeded ex-parte, therefore, the very intent gathered from the conduct of Respondent No. 2, who decided himself neither to appear before the Arbitration Council nor before this Court with view that he is not interested for any kind of reconciliation, hence, there is no other possible way to call Respondent No. 2 except to decide the matter m accordance with the legislative intent, i.e. to issue certificate of effectiveness of divorce after expiry of 90 days.

20.  The conduct of Chairman Arbitration Council regarding non-issuance of  certificate even after expiry of 90 days is contrary to law and the same is in violation of Articles 4 & 10(A) of the Constitution of the Islamic Republic of Pakistan, 1973, whereby all persons have been given due protection of law with assurance that an opportunity of fair trial shall be given to him or her, whereas the concept of fairness demands that when time has been referred in any law, the legislative intent is to be followed in same spirit and no other interpretation is permissible as it would mean to reading down the legislative intent and the same is also not permissible under the rules of interpretation. It has been observed from the record that the Nikahnama was duly registered and words “Talaq Tafweez” have duly been incorporated in column 18 of Nikahnama and notices were issued to Respondent No. 2 by Respondent No. 1 but he did not turn up. In such like situation, intention of Mst. Shayan Afzal has to be given effect as she never withdrew her request of issuance of certificate of effectiveness of Talaq before her death therefore, any other interpretation would be against the very foundation of concept of Talaq-e-Tafweez.

21.  It is settled proposition of law that if Talaq has been pronounced by the party and process of Arbitration Council has been adopted under the law and during pendency of proceedings the executor of the Talaq dies before expiry of 90 days, Talaq will not take its effect as held in 1994 SCMR 1720 (Mushtaq Ahmed and another vs. Sat Bharai and 5 other), whereas in other cases, if the executor of Talaq dies after completion of 90 days process time before Arbitration Council, Chairman Arbitration Council would be under legal obligation to issue certificate of effectiveness of divorce (Talaq) in favour of deceased, as applicant has not withdrawn his/her Talaq before 90 days.

22.  In view of above discussion, instant writ petition is allowed. Respondent No. 1 is directed to issue certificate of effectiveness of Talaq in the name of Mst. Shayan Afzal, when 90 days were completed from 21.10.2013. (The date of application of Mst. Shayan Afzal for issuance of certificate of effectiveness of Talaq). The said certificate shall be issued to petitioner/father of Mst. Shayan Afzal.

(Y.A.)  Petition allowed

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2013 S C M R 587

Rule that no limitation ran against a void order was not an inflexible rule --- Party could not sleep over to challenge a void order and it was bound to challenge the same within the stipulated/Prescribed time period of limitation from the date of knowledge before the proper forum in appropriate proceedings --- Appeal filed before the Appellate Tribunal was admittedly time-barred, and was rightly dismissed as being hit by limitation and no sufficient cause for condonation of delay was found --- High Court agreed with the order of Appellate Tribunal --- Supreme Court had affirmed concurrent findings recorded by fora below --- Review petition was dismissed in circumstances.

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2010 S C M R 1097

---S. 12(2) --- Decree, setting aside of --- Grounds for want of jurisdiction, misrepresentation of fraud --- Remedy --- Decree on such grounds could be set aside either on application under S. 12(2), C. P. C., or through an appeal, a revision or review, if available under law. 

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P L D 2012 Peshawar 190

-----S. 417 ---- Appeal against acquittal --- Scope --- Grounds to be considered by court --- Accused after acquittal enjoyed double presumption of innocence, once before the trial and second after his acquittal, therefore courts while dealing with an acquittal appeal, therefore, were bound to examine whether court below had ignored any evidence on record or had discarded any evidence for a reason not recognized by law.

----Art. 133 --- Re-examination of witness --- Scope --- Re-examination of witness was permissible in law, but the purpose behind it should not be fulfil the lacuna in the prosecution case.

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P L D 2006 Lahore 147

Right of appeal given to aggrieved person against the order of acquittal under S. 417 (2-A), Cr. P. C. cannot be extended to private persons in cases decided by the Special Courts regarding a scheduled offence. 

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2001 C L C 1187

---S. 12(2) --- Void order and order premised on fraud and misrepresentation --- Setting aside of such orders --- Procedure --- Limitation --- Limitation does not run against the void order as the same in nullity in law and does not require to be formally set aside --- Where the law provides a mechanism for setting aside order premised on fraud or misrepresentation, it presupposes that such order creates legal consequences and must be set aside in proper proceedings under S. 12 (2), C. P. C. or through separate suit as was the case prior to the enactment of the statutory provision of S. 12 (2), C. P. C.

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2014 P Cr. L J 1106

---S. 265-K --- Power of Court to acquit accused --- Provisions of S. 265-K, Cr. P. C., never prevented a court from acquitting an accused at any stage of the case, if after hearing the prosecution and accused, and for the reasons to be recorded, the court would consider that there was no probability of accused being convicted of the offense alleged against him --- Though there was no  legal embargo for exercising of power conferred under S. 256-K, Cr. P. C. --- but even then the court, could not deprive the prosecution by giving the opportunity to produce tangible evidence under S. 265-K, Cr. P. C. ---Mandatory for the court that discretion must be based on reasons, exercised with due care and caution with sole object to prevent fruitless trial, when it was apparent from the record that there was no probability of accused being convicted of the offense. (p. 1110) E

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P L D 2003 Lahore 1

Held, allegations as levelled in the F.I.R. necessarily required holding of a factual inquiry which exercise could not be undertaken by the High Court in summary proceedings under Art. 199 of the Constitution and, in circumstances, it would be premature for High Court to comment upon the veracity or otherwise, of the allegations contained in the said F.I.R. Purpose of quashing F.I.R. through exercise of constitutional jurisdiction being primarily to save a person from the rigours of an unjustified investigation and if investigation of a criminal case had already been finalized the High Court would generally be slow in interfering in the matter at such a stage as in case of submission of challan before the Court of competent jurisdiction many remedies would become available to the affected person.

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P L D 2014 Supreme Court 241

NAZIR AHMED and another --- Petitioners

                  

                          Versus

THE STATE and others --- Respondents

--- S. 173 --- Police opinion regarding innocence of accused, the relevance of --- Opinion of the police regarding the innocence of accused was inadmissible in evidence being irrelevant. (p. 256) C

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Fundamental Right of Accused is Fair Trial

PLJ 2013 Cr.C. (Lahore) 461
[Multan Bench Multan]

Present: Muhammad Qasim Khan & Ibad-ur-Rehman Lodhi, JJ.

MUHAMMAD ABDULLAH TARIQ--Petitioner

versus

STATE and another--Respondents

Crl. Rev. No. 306 of 2010, decided on 13.12.2012.

Constitution of Pakistan, 1973--

----Art. 10(1)--Fundamental right--No person, who is arrested or detained, shall be denied the right to consult and be defended by a legal practitioner of his choice. By means of Constitution (Eighteenth Amendment) Act, 2010, Article 10A has been inserted in the Constitution, which provided that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and due process.          [P. 463] A

Criminal Procedure Code, 1898 (V of 1898)--

----S. 340(1)--Right of accused--Any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, has a right to be defended by a pleader.          [P. 463] B

Criminal Procedure Code, 1898 (V of 1898)--

----Ss. 439/435 & 540--Revision petition against the order of Addl. Sessions Judge, in which trial Court appointed defence counsel on state expenses and dismissed the application of petitioner for re-summoning of PWs for impugned order and gave opportunity to cross-examine over PWs--Right of accused--Last opportunity to petitioner to conduct the cross-examination--Conduct adopted by the trial Court in appointing the defence counsel on State expenses in a haste and then in refusal to re-summon the prosecution witnesses for their cross-examination by the counsel, are acts, which are not only violative to the provisions of the Constitution, but also the settled legal norms--The petitioner will appear before; the trial Court and if the Special Court is still being headed by the Judge, who has passed the impugned orders then, he will not take further proceedings in the trial and the matter will be reported back to High Court, for some appropriate direction with regard to conduct of trial by some other competent Court, and if the Special Court is now being headed by some other Judge, then he will proceed with the matter and re-summon the said witnesses for a date according to the Court's own schedule and this will be considered as a last opportunity to the petitioner to conduct the cross-examination on the said prosecution witnesses--Revision petition allowed.       [P. 464] E & F

Right of accused--

----Counsel of his own choice--Concept of fair trial includes the right of an accused person to be defended by a counsel of his own choice, if he can afford one. Since right of counsel has been recognized, so its alleged violation becomes a justifiable issue over which the Court can exercise judicial review--When accused has engaged a counsel of his own choice, the concept of fair trial necessarily included the right of an accused person to be defended by such: particular counsel. Basic principle is that justice should not only be done but manifestly be seen to have been done and where on account of any attending circumstances, a suspicion or distrust had occurred resulting in a loss of confidence in the administration of justice, which was essential to social order and security, it is always better that it should be done by a Court, whose impartiality could not be doubted and was above suspicion. When this is an established right of an accused to be defended by counsel of his own choice, the Court cannot impose an Advocate upon the accused. [Pp. 463 & 464] C & D

Nemo for Petitioner.

Mr. M.A. Hayat Haraj, Special Prosecutor for ANF.

Date of hearing: 13.12.2012.

Order

The petitioner is facing trial in Narcotics Case No. 09/N of 2008, in the Court of learned Special Judge Anti-Narcotics Force, Multan, where charge was framed on 12.03.2008 to which the petitioner did not plead guilty and, therefore, the matter was put to trial.

2.  On 26.05.2010, two PWs i.e. Zahoor Ahmad, a Constable/recovery witness and Farooq Ahmad Sheikh, Investigating Officer, were present for making their statements before the Court, but the learned trial Court was informed that the learned counsel representing the accused-petitioner was busy in his professional engagements in some murder case in another Court. The request for adjournment as was made on account of non-availability of the learned counsel for the petitioner-accused, was turned down and Chaudhary Muhammad Akbar, Advocate was appointed as a defence counsel on State expenses and such newly appointed defence counsel straightaway cross-examined the said two witnesses.

3.  On 07.06.2010, a petition under the provisions of Section 540 of Cr.P.C. was moved praying the re-summoning of PW.3 and PW.4, whose statements were recorded on 26.05.2010, and who were cross-examined by the defence counsel appointed by the learned trial Court on State expenses.

4.  The learned trial Court vide order dated 16.06.2010 has proceeded to dismiss the said application by holding that the petitioner was provided a counsel on State expenses, who cross-examined the PWs and, thus, there was no justification left with the accused-petitioner to ask for re-summoning of the PWs and cross-examination by the counsel of his own choice

5.  It is a fundamental right as guaranteed under Article 10(1) of the Constitution of Islamic Republic of Pakistan, 1973, which mandates that no person, who is arrested or detained, shall be denied the right to consult and be defended by a legal practitioner of his choice. By means of Constitution (Eighteenth Amendment) Act, 2010, Article 10-A has been inserted in the Constitution, which provided that for the determination of his civil rights and obligations or in any criminal charge against him, a person shall be entitled to a fair trial and clue process.

6.  In view of Section 340(1) of the Criminal Procedure Code, 1898, any person accused of an offence before a Criminal Court or against whom proceedings are instituted under this Code in any such Court, has a right to be defended by a pleader.

7.  Concept of fair trial includes the right of an accused person to be defended by a counsel of his own choice, if he can afford one. Since right of counsel has been recognized, so its alleged violation becomes a justifiable issue over which the Court can exercise judicial review.

8.  In the present case, the learned trial Court proceeded to record the statements of two important witnesses without waiting for the learned counsel of the choice of the petitioner-accused and further refused to recall the prosecution witnesses already examined without proper representation on behalf of the accused petitioner.

9.  When accused has engaged a counsel of his own choice, the concept of fair trial necessarily included the right of an accused person to be defended by such particular counsel. Basic principle is that justice should not only be done but manifestly be seen to have been done and where on account of any attending circumstances, a suspicion or distrust had occurred resulting in a loss of confidence in the administration of justice, which was essential to social order and security, it is always better that it should be done by a Court, whose impartiality could not be doubted and was above suspicion. When this is an established right of an accused to be defended by counsel of his own choice, the Court cannot impose an Advocate upon the accused.

10.  We have noted that on 26.05.2010, Chaudhary Muhammad Akbar, Advocate was appointed on State expenses to defend the accused-petitioner and on the same day, the said learned counsel cross-examined two prosecution witnesses; one a recovery witnesses and other one is the Investigating Officer of the case, without there being any consultation with the accused, and also without going through the record of the case. One can imagine that what sort of cross-examination was conducted by the said learned counsel, having no knowledge with the facts of the case.

11.  The conduct adopted by the learned trial Court in appointing the defence counsel on Stale expenses in a haste and then in refusal to re-summon the prosecution witnesses for their cross-examination by the learned counsel, are acts, which are not only violative to the provisions of the Constitution, but also the settled legal norms.

12.  In such view of the matter, this petition is allowed; the impugned orders dated 26.05.2010 and 16.06.2010, are set-aside, and the application filed by the petitioner under Section 540 of Cr.P.C. stand accepted with a direction to the learned Special Judge Anti Narcotics Force, Multan to re-summon the prosecution witnesses viz. PW.3 and PW.4 for the purposes of their cross-examination by the learned defence counsel appointed by the petitioner-accused to defend himself in the trial.

13.  The petitioner will appear before; the learned trial Court on 19.12.2012 and if the Special Court is still being headed by Mr. Muhammad Ashraf Gull, the learned Judge, who has passed the impugned orders then, he will not take further proceedings in the trial and the matter will be reported back to this Court, for some appropriate direction with regard to conduct of trial by some other competent Court, and  if  the  Special  Court  is  now  being  headed  by some other learned Judge, then he will proceed with the matter and re-summon the said witnesses for a date according to the Court's own schedule and this will be considered as a last opportunity to the petitioner to conduct the cross-examination on the said prosecution witnesses.

14.  Keeping in view the pendency of this trial and also the fact that the announcement of final judgment was stopped by this Court in the present Criminal Revision on 29.6.2010, it is directed that the trial of the case be expeditiously taken up and concluded within next three months from today under intimation to this Court through the Deputy Registrar (Judicial).

(A.S.)   Revision allowed