Case Laws

فیملی اجرا میں مدیون کو حاضری  یا مقدمہ فوجداری میں ملزم کو گرفتاری دینے پر مجبور کرنے کیلئے اسکا قومی شناختی کارڈ بلاک نہ کیا جا سکتا ھے

P L D 2022 Lahore 756

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Constitution of Pakistan, Arts. 199 & 175---Power to cancel, impound or confiscate cards---Jurisdiction of Courts---Scope---Petitioner assails order passed by Executing Court whereby National Database and Registration Authority (NADRA) was directed to block his Computerized National Identity Card (CNIC)---Validity---Section 18(1) of the National Database and Registration Authority Ordinance, 2000 stipulates that all the cards issued by NADRA, including CNIC, shall be the property of the Federal Government and it may cancel, impound or confiscate it by an order after giving a show cause notice to the holder---Section 18(2) enumerates the circumstances in which it may take such an action---Provisions of S. 18 must be strictly construed and scrupulously followed as cancellation, impounding or confiscation of CNIC impacts the fundamental rights of a person---Executing Court had passed the impugned order without taking action under S. 18 into consideration---Section 18 does not allow blocking/digital impounding of the CNIC of a person to compel him to appear before the court---Constitutional petition was accepted, the impugned order was declared to be without legal authority and set aside.

National Database and Registration Authority Ordinance (VIII of 2000)---

----S. 18---Constitution of Pakistan, Art. 175---Power to cancel, impound or confiscate cards---Jurisdiction of courts---Scope---Digital impounding/blocking of CNIC by courts cannot be permitted because it does not have the sanction of law---Such orders are contrary to Art. 175(2) of the Constitution and concept of rule of law.

National Database and Registration Authority Ordinance (VIII of 2000)---

----Ss. 18 & 19---Constitution of Pakistan, Arts. 9, 14 & 10-A---Power to cancel, impound or confiscate---Cards necessary for certain purposes---Security of person---Inviolability of dignity of man---Right to fair trial---Scope---Subsections (1) and (2) of S. 19 of the National Database and Registration Authority Ordinance, 2000, specify a few circumstances when the National Identity Card is compulsorily required---Such include grant of passport, permit or other travel documents for going out of Pakistan and identification of a voter at various elections---Section 19(3) empowers the Federal Government specify any other purpose for which the production of any card issued as aforesaid shall be necessary---However, the need for the CNIC has increased manifold during recent years---Now almost every government and private organization requires CNIC from a person before they attend him---Not possible to get higher education, apply for a job, open a Bank account, get a driving license or arms license, get utility connections, purchase railway and air tickets, execute any instrument, stay in a hotel or lodge, appear in a court proceedings and enter in certain buildings and premises without production of CNIC---CNIC is essential for enjoyment of a number of fundamental rights, hence, a person cannot be deprived of it without due process.

Constitution of Pakistan---

----Arts. 9 & 14---Security of person---Inviolability of dignity of man---Right to identity---Scope---Courts have expanded the right to life over time and held that it includes the right to legal aid; the right to speedy trial; the right to bare necessities of life; protection against adverse effects of electro-magnetic fields; the right to pure and unpolluted water; the right to access to justice; the right to livelihood; the right to travel; the right to food, water, decent environment, education and medical care---Right to identity as concomitant to the right to lifeis protected under Arts. 9 & 14 of the Constitution.

Constitution of Pakistan---

----Arts. 9 & 14---Security of person---Inviolability of dignity of man---Right to identity---Scope---Personal identity of a person comprises all those aspects of his profile which are significant to him---Personal identity begins from the moment of conception and going beyond the information such as date of birth, encompasses his personal attributes like biographical data, physical traits and significant social relations, such as ties to family members, cultural or religion---Right to identity is associated with several other rights, e.g., the rights to a name, nationality, juridical personality, family and culture---Some legal experts consider it a part of the right of life while others posit that it is rooted in human dignity and thus fundamental and non-derogable.

Constitution of Pakistan---

----Art. 9---Security of person---Scope---Article 9 of the Constitution guarantees the right to life and liberty and enjoins that no person shall be deprived of it save in accordance with law.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people, they must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice---Such vibrance and vitality is the hall mark of a living Constitution in a democracy.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights in a living Constitution are to be liberally interpreted so that they can continue to embolden freedom, equality, tolerance and social justice.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Not imperative that every right should be enumerated as a fundamental right in the Constitution---Such can be claimed that even if it forms an integral part of a named fundamental right or is of the same nature or character or if its recognition is necessary to make the exercise of the named fundamental right meaningful and effective.

Constitution of Pakistan---

----Chap. 1 [Arts. 8 to 28]---Fundamental rights---Scope---Fundamental rights call for a generous interpretation avoiding what has been called the austerity of tabulated legalism, suitable to give to individuals the full measure of the fundamental rights and freedoms referred to.

JUDGMENT

      TARIQ SALEEM SHEIKH, J.---Respondent No.2 instituted a suit for recovery of dower against the Petitioner in the Family Court at Lahore which was decided in her favour vide judgment and decree dated 13.08.2020. The Petitioner did not satisfy that decree so she filed execution petition for its enforcement. The Executing Court issued him notice but he did not appear and subsequently even avoided coercive process. Eventually, on the application of Respondent No.2, the Court directed the National Database and Registration Authority (NADRA) to block his Computerized National Identity Card (CNIC) vide order dated 04.06.2021. Through this petition under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973 (the "Constitution"), the Petitioner lays challenge to that order (the "Impugned Order").

The submissions

2.    The counsel for the Petitioner contends that the right to identity is a part of right to life and it cannot be syncopated without due sanction of law. A person's CNIC can be cancelled, impounded or confiscated only by the Federal Government and that too on the grounds enumerated in section 18(2) of the National Database Registration Authority Ordinance, 2000 (the "Ordinance"), which do not exist in the instant case. Hence, the Executing Court had no jurisdiction to pass the Impugned Order.

3.    The Assistant Attorney General submits that the Civil Procedure Code, 1908, does not apply to the Family Court in terms of section 17 of the Family Courts Act, 1964, so it is competent to regulate its own proceedings. It can adopt any procedure unless it is specifically prohibited by law. In the instant case, the Executing Court took all possible steps - even issued coercive process - to procure the Petitioner's attendance but failed. The Impugned Order was passed as a last resort.

4.    The counsel for Respondent No.2 has adopted the Law Officer's arguments. He argues that the Impugned Order was necessary to maintain rule of law and prevent the frustration of decree dated 13.8.2020.

Opinion

5.    The personal identity of a person comprises all those aspects of his profile which are significant to him.1 His personal identity begins from the moment of conception and, going beyond the information such as date of birth, encompasses his personal attributes like biographical data, physical traits and significant social relations, such as ties to family members, culture or religion.2 In this view of the matter, the right to identity is associated with several other rights, e.g. the rights to a name, nationality, juridical personality, family and culture.3 Some legal experts consider it a part of the right of life while others posit that it is rooted in human dignity and thus fundamental and non-derogable.

6.    The international law focuses more on what may be described as "legal identity". Article 6 of the Universal Declaration of Human Rights (1948) proclaims that everyone has the right to be recognized as a person before the law. Articles 7 and 8 of the UN Convention on the Rights of the Child explicitly protect the child's right to identity. These are reproduced below for ready reference:

      Article 7

      1. The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.

      2. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless.

      Article 8

      1. States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference.

      2. Where a child is illegally deprived of some or all of the elements of his or her identity, States Parties shall provide appropriate assistance and protection, with a view to re-establishing speedily his or her identity.

7.    The other treaties which seek protection of identity rights inter alia include the Hague Adoption Convention4 and the anti-human trafficking conventions.

8.    The 2030 Agenda for Sustainable Development contemplates that legal identity is catalytic for achieving at least ten Sustainable Development Goals. Therefore, it has established it as a specific target - Target 16.9 (legal identity for all).5 The concept note of the United Nations Legal Identity Expert Group says:

      "For the purpose of the operational United Nations definition, legal identity is defined as the basic characteristics of an individual's identity. e.g. name, sex, place and date of birth conferred through registration and the issuance of a certificate by an authorized civil registration authority following the occurrence of birth. In the absence of birth registration, legal identity may be conferred by a legally-recognized identification authority; this system should be linked to the civil registration system to ensure a holistic approach to legal identity from birth to death. Legal identity is retired by the issuance of a death certificate by the civil registration authority upon registration of death."6

9.    The Constitution of Pakistan (1973) does not expressly guarantee the right to identity but can it still be claimed? In The Minister of Home Affairs and the Minister of Education v. Collins MacDonald Fisher and Eunice Carmeta Fisher, (1979) 3 All ER 21, Lord Wilberforce held that fundamental rights "call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to." The courts in India and Pakistan are essentially of the same view. In Maneka Gandhi v. Union of India (AIR 1978 SC 597) the Supreme Court of India held that it is not imperative that every right should be enumerated as a fundamental right in the Constitution. It can be claimed even if it forms an integral part of a named fundamental right or is of the same nature or character or if its recognition is necessary to make the exercise of the named fundamental right meaningful and effective. In Jurist Foundation v. Federal Government through the Secretary Ministry of Defence and others (PLD 2020 SC 1) the Supreme Court of Pakistan held that "fundamental rights in a living Constitution are to be liberally interpreted so that they continue to embolden freedom, equality, tolerance and social justice." In Hafiz Junaid Mahmood v. Government of Punjab and others (PLD 2017 Lahore 1) this Court held that "fundamental rights are the heart and soul of a living Constitution and must at all times be ready to embrace and protect the sensibilities and sensitivities of the people. They must be progressively and purposively interpreted to advance the frontiers of freedom, individual autonomy and free choice. Such vibrance and vitality is the hallmark of a living constitution in a democracy."

10.  Article 9 of the Constitution of Pakistan (1973) guarantees the right to life and liberty and enjoins that no person shall be deprived of it save in accordance with law. In Ms. Shehla Zia and others v. WAPDA (PLD 1994 SC 693) the Hon'ble Supreme Court of Pakistan held that the term "life" in the said Article means more than mere animal existence. It ruled:

      The word "life" is very significant as it covers all facets of human existence. The word "life" has not been defined in the Constitution but it does not mean nor can it 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."

The Court added:

      "The Constitutional Law in America provides an extensive and wide meaning to the word 'life' which includes all such rights which are necessary and essential for leading a free, proper, comfortable and clean life. The requirement of acquiring knowledge, to establish home, the freedoms as contemplated by the Constitution, the personal rights and their enjoyment are nothing but part of life. A person is entitled to enjoy his personal rights and to be protected from encroachments on such personal rights, freedoms and liberties. Any action taken which may create hazards of life will be encroaching upon the personal rights of a citizen to enjoy the life according to law."

11.  Our courts have expanded the right to life over time and held that it includes "the right to legal aid; the right to speedy trial; the right to bare necessities of life; protection against adverse effects of electro-magnetic fields; the right to pure and unpolluted water; the right of access to justice;"7 the right to livelihood,8 the right to travel,9 the right to food, water, decent environment, education and medical care.10 Keeping in view the international human rights jurisprudence discussed in the earlier part of this judgment which considers the right to identity as concomitant to the right to life, I hold that the said right is protected under Article 9 of our Constitution. I would also read it into Article 14 which guarantees dignity of man.

12. Let's now come to the National Identity Card. The National Database and Registration Authority Ordinance, 2000, provides for registration of all persons. Section 10 entitles every citizen to have the National Identity Card who has attained the age of 18 years and is registered under section 9. The Ordinance also makes provision for issuance of Pakistan Origin Cards (section 11), Overseas Identity Cards (section 12) and Alien Registration Cards (section 13). Section 19(4) stipulates that the cards issued under the Ordinance, including the National Identity Card, shall be the proof of his identity as could be established from the contents of such card.

13.  Subsections (1) and (2) of section 19 of the Ordinance specify a few circumstances when the National Identity Card is compulsorily required. These include grant of passport, permit or other travel document for going out of Pakistan and identification of a voter at various elections. Section 19(3) empowers the Federal Government to specify any other purpose for which the production of any card issued as aforesaid shall be necessary. However, the need for the CNIC has increased manifold during recent years. In Muhammad Umar v. Federation of Pakistan, through Secretary, Ministry of Interior, Islamabad and 2 others (PLD 2017 Sindh 585) the Sindh High Court observed that now almost every government and private organization requires CNIC from a person before they attend him. "It is not possible to get higher education, apply for a job, open a bank account, get a driving licence or arms licence, get utility connections, purchase railway and air tickets, execute any instrument, stay in a hotel or lodge, appear in a court proceedings and enter in certain building and premises without production of CNIC." In this backdrop it can be legitimately argued that the CNIC is essential for enjoyment of a number of fundamental rights guaranteed by the Constitution. Hence, a person cannot be deprived of it without due process.

14.  Section 18(1) of the Ordinance stipulates that all the cards issued by NADRA, including the CNIC, shall be the property of the Federal Government and it may cancel, impound or confiscate it by an order after giving a show cause notice to the holder. Section 18(2) enumerates the circumstances in which it may take such an action. It reads:

(2)   An order under subsection (1) cancelling, impounding or confiscating a card may be made only if there is reason to believe that-

      (a) the card has been obtained by a person who is not eligible to hold such card, by posting himself as eligible;

      (b) more than one cards have been obtained by the same person on the same eligibility criteria;

      (c) the particulars shown on the card have been obliterated or tampered with; or

      (d) the card is forged.

15.  Inasmuch as cancellation, impounding or confiscation of CNIC impacts the fundamental rights of a person, the provisions of section 18 of the Ordinance must be strictly construed and scrupulously followed. Any order passed or action taken on a consideration other than those stipulated therein cannot sustain.

16.  In the present case, the Executing Court has passed the Impugned Order dated 04.06.2021 without taking section 18 of the Ordinance into consideration. The said section does not allow blocking/ digital impounding of the CNIC of a person to compel him to appear before the court.

17.  I am fully aware of the fact that the courts frequently direct digital impounding of the CNIC because it is an effective means to secure presence of a person. Sometimes it even impels a fugitive from law to surrender. Notwithstanding the benefits, this cannot be permitted because it does not have the sanction of law. Such orders are contrary to Article 175(2) of the Constitution11 and the concept of rule of law. The Federal Government may, therefore, propose the Parliament to amend the Ordinance.

Disposition

18.  In view of what has been discussed above, this petition is accepted. The Impugned Order dated 04.06.2021 is declared to be without legal authority and set aside. 

ایسا اقرار نامہ جو والدہ کے اپنے بچوں کے حق حضانت سے دستبرداری کی بابت ہو سراسر غیر قانونی ہے.

PLD 2024 SC 291

Contact: 03216010704

g.co/kgs/cywPdpF 

فیملی اجرا میں ضامن کی ذمہ داری۔

2024 CLC 1744

PLJ 2024 Lahore 683

A surety’s liability is co-extensive with that of the judgment debtor and he was as much bound by his undertaking as was the judgment debtor, and both were collectively and severely liable to make payment to the decree holder. While construing the tenure and extent of surety bond, the words and recitals of the surety bond must be taken into consideration to gather the intention of the executant of said bond and the bond must be strictly construed. A surety is liable only upto the extent to which he is clearly bound. 

Through the order dated 28.11.2015 the learned executing Court directed respondent No.5 to submit surety bond of Rs.400,000/- with one local surety in the like amount and in compliance of said order, the petitioner submitted surety bond of Rs.400,000/- on 03.12.2015 and vide order dated 29.01.2016 the learned executing Court on submission of surety bond of Rs.400,000/- released respondent No.5 which facts clearly established that the petitioner was stood surety only of Rs.400,000/-. Contract of surety had provided that maximum he was liable to the tune of Rs.400,000/-. Orders of learned executing Court did not find mentioned that the respondent No.5 would arrange a surety for the payment of the entire decretal amount. Petitioner stood surety amounting to Rs.400,000/- only, which he has paid before the learned Executing Court on different occasions as detailed in his application to discharge him from the liability as surety. Said fact was not denied by respondents No.2 to 4. In these circumstances, the petitioner has satisfied the amount for which he stood surety. 

WP 5215-22

MASOOD UL HASSAN VS

ADJ ETC 

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عدالت کی جانب سے دی گئی خلع کی ڈگری غیر اسلامی نہی ھے ۔ 

*PLD 1966 SC 97*

 The Judgment rendered  by Supreme Court of Pakistan in  Mst. Khurshid Bibi v. Baboo Muhammad Amin, PLD 1967 SC 97, provides that the decree issued by a Family Court for Dissolution of Marriage is not against Islamic Injunctions nor is an unislamic practice 

*P L D 1967 Supreme Court 97*

Present: S. A. Rahman, Fazle‑Akbar, Hamoodur Rahman, Muhammad Yaqub Ali and S. A. Mahmood, JJ

*Mst. KHURSHID BIBI‑Appellant*

versus

*Baboo MUHAMMAD AMIN‑Respondent*

Civil ‑ Appeal No. 83 of 1963, decided on 12th October 1966.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 7th June 1962, in Regular Second Appeal No. 131 of 1962).

(a) Muhammadan Law‑Fundamental laws of Islam‑Doctrine of Taqlid. The Fundamental Laws of Islam are contained in the Qur'an and this is, by common consent, the primary source of law for Muslims. Hanafi Muslim jurisprudence also recognises hadith, ijtehad and ijma' as the three other secondary sources of law. The. last two really fall under a single category of subsidiary reasoning, ijtehad being by individual scholars and ijma' being the consensus of scholars who have resorted to ijtehad, in any one age. That this is the order of priority, in their importance, is clear from the well‑known hadith, relating to Muadh‑ibn‑e‑Jabal who was sent by the Prophet as Governor and Qazi of Yemen. The Prophet asked him, how he would adjudicate cases. "By the Book of God", he replied. "But if you find nothing in the Book of God, how?" "Then by the precedent of the Prophet". "But if there be no precedent?" "Then I will diligently try to form my own judgment." On this, the Prophet is reported to have said, "Praise be to God who hath fulfilled in the messenger sent forth by his apostle that which is well‑pleasing to the apostle of Allah".

The four orthodox schools of Sunni fiqh were headed by Imam Abu Hanifa, Imam Malik, Imam Shafei and Imam Ahmad‑bin­Hanbal. The learned Imams never claimed finality for 'their opinions, but due to various historical causes, their followers in subsequent ages, invented the doctrine of taqlid, under which a Sunni Muslim must follow the opinions of only one of their Imams, exclusively, irrespective of whether reason be in favour, of another opinion. There is no warrant for this doctrinaire fossilization, in the Quran or authentic Ahadith.

(b) Muhammadan Law ‑ Marriage ‑ Concept ‑ Marriage among Muslims not a sacrament but a civil contract‑Divorce­ Man and woman on equal footing in respect of rights of one against the other‑If husband given right to divorce wife, latter too entitled to separation by means of khula‑Warning against free exercise of such rights by husband or wife placed on moral rather than legal plane, It is well‑settled, that marriage among Muslims is not a sacrament, but in the nature of a civil contract, such a  contract undoubtedly has spiritual and moral overtones and undertones, but legally, in essence, it remains a contract between the parties which can be the subject of dissolution for good cause. In this respect, Islam, the Din‑al‑Fitrat, conforms to the dictates of human nature and does not prescribe the binding together of a man and woman to what has been described as "holy dead‑lock".

The husband is given the right to divorce his wife, though, of course, arbitrary divorces are discountenanced. There is a saying of the Prophet to the effect that "the most detestable of lawful things in Allah's view is divorce" Abou Daood). Similarly, the wife is given the right to ask for khula in cases of extreme incompatibility though the warning is conveyed by ahadith against too free exercise of this privilege, one of which says that women asking for khula will be deprived of the fragrance of paradise (Tirmizi). The warning both to man and woman in this regard, is obviously placed on the moral rather than the legal plane and is not destructive of their legal rights.

The Qur'an also declares: "Women have rights against men, similar to those that the men have against them, according to the well‑known rules of equity" It would, therefore, be surprising if the Qur'an did not provide for the separation of the spouses, at the instance of the wife, in any circumstances. The Qur'an expressly says that the husband should either retain the wife, according to well‑recognised custom  (Imsak‑un‑bil‑ma'roof) or release her with grace (Tasree‑hun‑bi‑ihsan). The word of God enjoined the husband not to cling to the woman, in order to cause her injury . Another hadith declares Islam.) "Let no harm be done, nor harm be suffered in Islam". In certain circumstances, therefore, if the husband proves recalcitrant and does not agree to release the woman from the marital bond, the Qazi may well intervene to give redress and enforce the Qur'anic injunctions

(c) Muhammadan Law ‑ Divorce ‑ Khula ‑ Opinions of commentators of Qur'an as to meaning of verses bearing on "Khula"‑Khula, whether equated with talaq‑Wife whether not entitled as of right to claim khula despite unwillingness of husband to release her Jrom matrimonial tie‑Consent of husband whether absolutely necessary‑Whether even in case of khula it is husband's right to grant divorce and no separation could be ordered by Qazi‑Words "Hakam" and "Mubara't"‑Meanings‑Khul a, a charter granted to wife‑Woman has a right to seek khula if she has fixed aversion to her husband‑Classical instance of Sabit‑bin­Qais and Jamila‑No possibility of reconciliation between husband and wife‑Idle to have recourse to formality of appointing Hakams‑‑Present trend of legislation on subject in Muslim countries‑Observations in Umar Bibi's case [1 L R (1944) 25 Lah. 542] that even where there was mutual dislike and extreme incompatibility of temperament. between husband and wife there can be Muwaddat (~), Sukoon (Z~) and Rehmat (J)‑

Held: difficult to sustain‑Terms on which decree for khula can be granted‑Claiming more than dower itself in lieu of khula ­Abominable on part of husband but, nevertheless, if he insists it is permissible.

The question that fell for consideration in the case was whether a wife, under the Muslim law, is entitled, as of right, to claim khula, despite the unwillingness of the husband to release her from the matrimonial tie, if she satisfies the Court that there is no possibility of their living together consistently with their conjugal duties and obligations. The learned Judges concurred in their opinion and endorsed the view of Kaikaus, J., in Mst. Balqis Fatima v. Najmul Ikram Qureshi P L D 1959 Lah. 566 that under Muslim Law, the wife is entitled to khula, as of right, if she satisfies the conscience of the Court that it will otherwise mean forcing her into a hateful union. S. A. Rahman, J., delivered the leading judgment and S. A. Mahmood, J., added reasons of his own for reaching the same conclusion. Theif Lordships' respective observations were as follows:

Per S. A. Rahman, J.‑The foundation of the law relevant to khula is contained in the Qur'anic verses, which may be translated as follows: "Such divorce may be pronounced twice; then, either retain them in a becoming manner or send them away with kindness. And it is not lawful for you that you take anything of what you have given them, unless both fear that they cannot observe the limits prescribed by Allah. But, if you fear that they cannot observe the limits prescribed by Allah, then it shall be no sin for either of them in what she gives to get her freedom. These are the limits prescribed by Allah, so transgress them not; and who so transgresses the limits prescribed by Allah, it is they that are the wrong doers."

The words (if you fear) are addressed to the community or (those in authority from among you),

and include the Qazi, who represents the community, for adjudi­cation of disputes. This is borne out from the commentary of the Qur'an by Qurtabi, known as VI

"Al Ja'me‑al‑Ahkaam‑al‑Qur'an". The learned author says that this is the opinion of lbn‑e‑Abbas and Malik‑bin‑Anas as well as the majority of the legists.

By the phrase "Limits of Allah", according to the majority of legists reference is intended to the injunctions regarding the performance of conjugal obligations while living together.

It is explained that incurable aversion to the husband, on the part of the wife would be sufficient justification for khula. Shah Wali Ullah of Delhi in " (Al‑Musawwa‑ min‑Ahadith‑al‑Muatta, Vol. II, p. 160) goes to the length of saying that "even if she obtains khul' without any reason (apart from personal dislike) it is lawful but not ' approved. The reason is that the Prophet and the Companions never inquired from her the reason for her (seeking) khul."

There are good reasons for the view that khula is separation and not talaq, as the right of the husband to take back the wife, after khula, does not exist, as it does in the case of talaq‑i‑raja'i and the period of 'Iddat is different in the two cases. The relevant Ahadith are discussed by Shaukani in (Kitab‑ul‑Khul', Vol. 111, p. 260) of his celebrated work  (Nail‑al‑Autar) and he reaches the conclusion that khula is not a type of talaq, but is a category apart from it. If this opinion is accepted, then it is clear that khula is not dependent on the will of the husband alone: But even if khula be regarded as talaq as seems to be the view of some of the orthodox Hanafi Jurists, the question arises whether the wife is not entitled, in appropriate cases, to demand a khula divorce from the husband, in the face of the latter's opposition. This problem finds no express treatment in the treatises of these Hanafi Jurists who content themselves by saying that divorce is the right

of the husband.

It is true that in certain commentaries of the Qur'an the expression "person in whose hand is the tie of marriage" occurring in Verse No. 238 has been interpreted to mean the husband but this is by no means universally accepted. Some commentators have interpreted these words as referring to the guardian of the woman and this interpretation seems to be more consistent with the context.

Sha'rani in his book, (Al‑Mizan‑ul‑Kubra, Vol. II, page 117) says: "Imams agree in that the woman, if she dislikes her husband because of his ugliness or misconduct, she has a right to seek khul' by payment of compensation. Even if there is nothing to cause her dislike and the husband and wife both agree upon khul'; without any reason, it is lawful and is not condemned.

Badaruddin Ayni in his "VjW1 aA"" Umda‑tul‑Qari, Vol. IX, p. 573) says: "There is difference of opinion in the case when Both spouses agree on separation, Malik, Auza'i and Ishaq are of the opinion that no Hakams are required nor (further) permission of spouses. Kufis, Shaf'i and Ahmad have said that their permission is necessary, as the right to divorce is in the hands of the husband. If he permits, well and good, otherwise the Court will divorce on his behalf".

This has reference to the well‑known verse of the Qur'an, which requires Hakams to Represent spouses to be appointed in case of shiqaq which means breach or schism between them, for the purpose of effecting reconciliation if possible and for ordering separation, if that be necessary. Some of the legists have described Hakams as merely Attorneys or arbitrators and not Judges, but others have said that they have full powers to decide as they think fit. Some have held that the arbitrators' opinion is to be submitted to the Qazi, who will decide, in accordance with that opinion. There is also difference of opinion among the legists as to whether reference to the Sultan (Sovereign) or Qazi is necessary, at all, or not.

This difference arises owing to the fact that two situations are contemplated by the writers. One is where khula takes place as a result of the mutual consent of the spouses, which is technically called mubara't. In such a case it appears that no reference to the Qazi is necessary. But where the husband disputes the right of the wife to obtain separation by khula, it is obvious that some third party has to decide the matter and, consequently, the dispute will have to be adjudicated upon by the Qazi, with or without assistance of the Hakams. Any other interpretation of the Qur'anic verse regarding khula would deprive it of all efficacy as a charter granted to the wife. It is significant that according to the Qur'an, she can "ransom herself" or "get her release" and it is plain that these words connote an independent right in her.

The Qur'anic injunctions must be interpreted in the light of well‑known Ahadith. The classical instance of khula is that of. the wife of Sabet‑bin‑Qais‑bin‑Shamas.

The generally accepted account of Jamila's case as well as that of Habiba makes it clear that the only ground on which the Prophet ordered the woman to be released from the marriage bond, was her intense dislike of her husband. According to one text, she clarified that she found him to be ugly and repulsive, and in another that she felt like spitting at him. The Prophet being convinced that the spouses could not live together in conformity with their conjugal obligations, ordered the husband to separate her. Hakim in (Almustadrak), Ibne Abdul Barr in (Al‑Istiab), Shaukani in Nail‑ul‑Autar, the last‑named (relying on Dar Qatani's version), are categorical in saying that it was the Prophet who ordered the separation. As has been observed above, Ibne Hajr Asqalani shares this opinion and doubts the authenticity of the hadith which specifies that this was a case of talaq. Ibne Hazm in Al‑Mohalla upholds the Qazi's right to effect separation by khula, after efforts at conciliation through Hakams have failed. It is not possible to consider this act of the Prophet, except as one conceding the right of the wife, in circumstances of extreme discord.

The present trend of legislation in Muslim countries which may provide indication of Ijma's in modern times, may also be examined. The right of the wife to obtain separation from her husband on any ground of  (injury), is recognised in Iraq, Egypt, Tunis, Morroco, Jordan and Syria.

In the Codes of these countries it is provided that the matter will first be referred to Hakams'and the final decision will rest with the Court.

There, is a hadith, of the Prophet, concerning Barairah‑ who was married to a slave, named Mughis. She did not live with her husband who followed her disconsolate and weeping, in public. The Prophet advised her to go back to her husband. She asked: "Is this an order?" The Prophet said that it was merely a recommendation. She then declined to go back to her husband, saying: "I have no need of him." This shows that a woman cannot be compelled, if she has a fixed aversion to her husband, to live with him.

The view expressed in Umar Bibi's case [I L R (1944) 25 Lah. 542] that even where there

was mutual dislike or extreme incompatibility of temperament between husband and wife there can be muwaddat sukoon  and rehmat  in the married life is difficult to sustain. In such cases, if there is fixed aversion on the part of the wife or the husband, life becomes a torture for both.

It would be more consistent, therefore, with the letter and spirit of the Qur'an which places the husband and the wife on an equal footing, in respect of rights of one against the other, to construe the classical incident of Sabit‑bin‑Qais as meaning that the person in authority, including the Qazi, can order separation by khula even if the husband is not agreeable to that course. Of course the Qur'anic condition must be satisfied that it is no longer possible for the husband and the wife to live together in harmony and in conformity with their obligations.

Though, according to the Hedaya, it is abominable on the part of the husband to have more than the dower itself, in a case of separation by khula, yet if he insists, it is legally permissible for him to demand something more than the dower, and to the extent that he might have been out of pocket, in respect of gifts, given to the wife on marriage, he may, in law, demand restitution. This Would necessitate an enquiry into the facts and the final decision as to what compensation must be paid by the wife for her relief, must rest with the Court.

Per S. A. Mahmood, J.‑The basis and foundation of khula is Verse 2: 229 of the . Holy Qur'an, though the word khula finds no mention therein or in the Holy Qur'an. It has been translated as: "Divorce must be pronounced twice; then either retain them in honour or release them with kindness. And it is not lawful for you that you take back from women anything out of what you have given them unless they both fear that they cannot observe the limits imposed by Allah. But if you fear that they cannot keep within the limits prescribed by Allah, then it is no sin for either of them in what she gives up to be free (i.e., ransoms herself). These are the limits imposed by Allah. Transgress them not. For whoso trans­gresses Allah's limits, it is they who are the wrong‑doers.

It is accepted by the Jurists and Commentators that "you" in the words "if you fear" in the relevant verse refers to ulil‑amr, and includes the Qazi, who represents the community for adjudica­tion of disputes between the parties.

The words  (if you fear) by which the relevant part of the verse commences, also appear in the well known Verse 35, section 6, Chapter IV of the Holy Qur'an in the context of shiqaq (schism or breach) between the spouses

"And if you fear a breach between the two, then appoint an arbiter from his people and an arbiter from her people; if they both desire agreement, Allah will effect harmony between them; surely Allah is knowing Aware."

Here also it is generally accepted that the word "you" refers to ulil‑amr. The word "you" can have no reference to the spouses, who are referred to in the relevant verse as "they two" and "them two". The following conclusions follow from a careful analysis of the verse:‑‑

Firstly, the words "if you fear" involve by necessary implication a reference to the Qazi and adjudication by him. The occasion for a reference to him arises only where the husband refuses to release his wife, when she demands a divorce, for if the matter is mutually agreed upon between the parties, the husband will divorce her, and there will be ho reference to the Qazi; and no occasion for him to arrive at the conclusion that the parties will not keep within the limits of Allah. In consequence, the verse is a rule of decision in cases, where the husband refuses to release his wife, and is not in express terms applicable to cases of khula by mutual agreement where there is no reference to the Qazi. In khula, under the verse, the husband is permitted to accept what the wife may give him to be free and this is an exception to the general rule stated in cases of divorce by the husband in verse 2:229 and verses 19 and 20 of Sura Al‑Nisa that it is not lawful for him to take back any part of what he has given to the wife, but it is lawful "if the Qazi entertains the fear". Therefore, the verse contemplates an adjudication by the Qazi as justification for the husband's accepting what his wife gives him for being free. The provision of adjudication in the verse is evidence of Divine Wisdom, for it ensures on the one hand that there are not too many, too frequent and unrestricted dissolution of marriages (and thus there need be no fear of frequent breaking of family ties, as was expressed by A. M. Jan, J. in Mst. Saeeda Khanum v. Muhammad Sam! P L D 1952 Lah. 113, and on the other that the wife is not oppressed in order to deprive her of her property.

Secondly, it confers a right and a privilege on the wife to seek dissolution of marriage. Khula is thus a right conferred on the wife. In the prior verse 2:228 the Holy Qur'an itself mentions " *women have rights against men similar to those that men have against them* , according. to the well‑known rules of equity".

Al‑Khafif in strongly supports the right of the wife to khula when discord between the spouses is established. The right is not, however, an absolute right by which the wife can herself dissolve the marriage, but is a controlled right. The success of her right depends upon the Qazi's reaching the conclusion that the spouses can not live within the limits of

God, this being the rule of decision provided for his guidance.

Thirdly, the verse, by making it not lawful for the husband, where he pronounces a tdlaq to take back anything from the wife and permitting it where she seeks khula, indicates that talaq is in a category different‑ from khula. There is a clear distinction between the two, . for khula is the right of the wife, and talaq is the right of the husband. A talaq is pronounced by the husband on his own, but khula under the verse is sought by the wife, and is effected by the order of the Qazi for a consideration to be paid by her‑. The nature and character of talaq and khula are different, though their effect may be the same, namely, dissolution of the marriage tie, but it will be shown later that their respective effects are even different, and khula effects a dissolution of marriage and not a talaq. In cases of khula by mutual agreement, a talaq is usually pronounced by the husband, but this is pronounced to effect a dissolution of the marriage tie, and though it is in the form of a talaq, what is brought about is in effect a khula. Khula is not the same thing as talaq and the two cannot be equated. Fourthly, as the verse confers a right on women to seek dissolution of marriage, names the Qazi as a Judge of the cause, and provides the rule of decision, it virtually adds a ground for dissolution of marriage, and thus authorises the Qazi to dissolve the marriage in appropriate cases, even without or against the will of the husband. Obviously, therefore, the dissolution cannot rest on the consent of the husband, but must depend on the order of the Qazi. When he has the power to order dissolution of marriage and to enforce his decision in cases of lian, ila and inin and where the husband becomes Mafqood‑ul‑Khabar (absent without news) even without and against the consent of the husband, and when dissolution can take effect without his pronouncing a talaq, the Qazi must have the power to dissolve the marriage by khula also, indepen­dent of the husband's consent and his pronouncing a talaq.

The instance of Barirah and Mughis (reported by Ibne Abbas in Mishkat, Vol. II, p. 702) has been used in Mst. Saeeda Khanum v. Muhammad Sami P L D 1952 Lah. 113 as implying that as the Holy Prophet did not force Barirah to go back to her husband, He was not likely to force Sabit bin Qais to divorce his wife. With the greatest respect, it appears that this instance instead of reflecting adversely on the efficacy of the cases of Jamila and Habiba, as instances of khula under the orders of the Holy Prophet, enhances their value. The difference between those cases and the case of Barirah is that in those cases the wives approached the Holy Prophet, demanding a dissolution of their marriage, while there was no such demand by Barirah, and the Holy Prophet decided the cases referred to him as head of the State of Islam, and ordered the husband to release them on restoration of benefits conferred. Thus, khula was decreed by the Holy Prophet on the ground that the wives having developed intense hatred for their husbands, it had become impossible for them to live with him and to perform their marital obligations. No clearer proof can be had of Qazi's power and authority to dissolve a marriage in appropriate case by khula. In the case of Barirah, there being no cause before him as a Qazi or a Judge, he gave no order and merely tendered an advice. Her instance also proves that the Holy Prophet was not in favour of forcing an unwilling wife to live with her husband, where there is fixed aversion.

The word "khula" literally means to put off, as a man is said to khula his garment, when he puts it off. Verse 187, Chapter 11 of the Holy Qur'an recites "you are garment or apparel for them and they are garment for you", meaning that the husband is a garment for the wife and vice versa." "Khula", therefore, should mean the putting off or doffing of the cloak of marriage.

There are two classes of cases of khula: (1) by mutual agree­ment, and (2) by order of the Qazi or Court, where dissolution of marriage takes place by the husband's pronouncing a talaq in the first class of cases, and by the order of the Qazi or the Court in the second. Sanction for khula under the orders of the Qazi is to be found in the express words of verse 2:229 of the Holy Qur'an, which is the word of God. Cases of khula by mutual agreement do not strictly fall under the terms of the verse itself, but what is so‑effected is also khula and justification for such cases has been found by the Jurists by a process of reasoning and deduction from the words of the verse, or from the contract between the parties. The principle so‑deduced amply justifies the conclusion drawn by the Jurists that khula by mutual agreement is permit­ted in Islam, but the concept of khula derived from instances of mutual agreement should not, in any event, be used to confuse the issue, and made to bear on cases of khula under the orders of the Qazi, which are expressly covered by the verse of the Holy Qur'an.

The opinions and definitions of khula, adopted by Jurists are misleading when they convey the impression that khula is the act of the husband, and they do not also include cases of khula by the Qazi or the Courts, but if it is defined as putting off or doffing of the cloak of marriage by the wife, this definition will cover not only cases of khula by mutual arrangement, but also those which are .enforced by the Qazi and the Courts, and will also not violate the prohibition in the Holy Qar'an. There is; therefore, no justification for the Jurists equating khula with talaq, or treating khula as an irreversible divorce, instead of a separation of the spouses.

It is necessary for the Court to ascertain in a case of khula what benefits have been conferred on the wife by the husband as a consideration of the marriage, and it is in the discretion of the Court to fix the amount of compensation.

(d) Muhammadan Law‑Divorce‑May be claimed on any ground recognised as valid for dissolution of marriage‑Courts in Pakistan occupy position akin to Qazi and are competent to effect divorce on such grounds‑Dissolution of Muslim Marriages Act (VIII of 1939), S. 2(ix).

The subordinate Courts, the District Judges and the Judges of the High Courts in Pakistan, occupy a position akin to that of a Qazi, since they. could effect a divorce on any ground on which it could be granted under the Muslim Law.

The nature and extent of the power and authority of the Qazi to order dissolution of marriage is to be found in the following words of Mujalla‑tul‑Ahkam:‑

....(Hakim (Judge) is that person who is appointed by the Sultan to finally adjudicate upon and determine disputes and claims between the contestants according to Shariat). Mabsoot, Vol. V at p. 97 states

(The Qazi has the power to preovent zulm by effecting separa­tion).

Hedaya makes this further clear by stating in Vol. II at page 323 as follows:‑     

"As Allah has enjoined that the husband should either retain the wife according to the well‑recognised custom or release her with grace if she is not kept accordingly, it is necessary for him to release her with. grace, or the Qazi will release on his behalf."

Raddul Muhtar, which is a commentary of Hedaya, states that if the husband refuses to divorce his wife, she will make an application to the Qazi, and if her husband's refusal to divorce her is zulm, the Qazi will act on his behalf for relieving her of zulm, and it is permissible for the Qaz; to dissolve the mar­riage.

(e) Evidence Act (1 of 1872), S. 45‑Expert opinion‑Authors ­Opinion of living, not entitled to as much weight as that of those who are no more.

(f) Muhammadan Law‑Sources: Qur'an, Ahadith, Ijtihad, and ljma'‑Respective importance‑Laws laid down in Qur'an­ Decrees and commandments of Divine origin‑Cannot be challenged or altered by human agency‑Duty of Muslims to obey words of God (Atiullah‑wa‑atiur‑Rasool).

The Holy Qur'an, which is the embodiment of Divine Will, is the fundamental source of Islamic Laws. The laws in it are decrees .and commandments of Divine Origin and not only have super‑eminence over other sources of Muslim Law, but cannot be changed or altered by human agency. Verse 2:229 falls in the category of Qur'anic I_aw. Ahadith come next in importance. The Hanafi Muslim Jurisprudence recognise ijtehad and ijma as the remaining two sources of Islamic Laws, but they are subsidiary reasoning really falling under a single category, ijtehad being by individual scholars and ijma' by consensus of scholars indulging in ijtehad in any one period. The opinions of Jurists and Commentators stand on no higher footing than that of reasoning of men falling in the category of secondary sources of Muslim Law, and cannot, therefore, compare in weight or authority with, nor alter the Qur'anic law or the Ahadith. If the opinions of the Jurists conflict with the Qur'an and the Sunnah, they are not binding on Courts, and it is our duty, as true Muslims, to obey the word of God and the Holy Prophet (Ati‑ullah‑wo ati‑ur‑Rasool).

Mst. Balqis Fatima v. Najmul 1kram Qureshi P L D 1959 Lah. 566;

 Mst. Umar Bibi v. Muhammad Din I L R (1944) 25 Lah. 542; 

Mst. Saeeda Khanam v. Muhammad Sami P L D 1952 Lah. 113; 

Allama Ibn‑e‑Rushad .: Hedayat‑ul‑Mujtahid, p. 158 ; 

Hedaya page 112 of Hamilton's Translation, 2nd Edn. by Grady; 

Tafseer‑i‑Mazhari Inaya; Hedaya, Raddul Muhtar; Tafseer‑ul­Maaarik, Tafseer‑ul‑Ahmadya; Tafseer‑i‑Kabir; Qur'an; Ahadith; Tirmizt; A1 Ja'ml‑1e‑Ahkaam‑al Qur'an; Zamakhsthri; Akashshaf; Madarak‑ul‑tanzil‑Wa‑Haqaiq‑u1‑Ta'veei; Anwar‑ul‑Tanzil‑wa Israr­ut‑ta'veel; Irshad‑us‑Sati; Ahkamul Qur'an; Tafsir Ibne Kasir; Tafsir Khazin; Tafsir A1 Manay; Fateh‑ul‑Qadir; Sahih Bokhari (Arabic Test) ; Al‑Musawwa‑min‑Ahadith‑al‑Muatta, Vol. II, p. 160; Badaya‑tul‑Mujtahid; Alderaya‑fi‑Takhrija‑Ahadith‑ul‑Hidaya and Fat‑hul‑Bari; Talkhisul .Habir, Vol. 111, p. 205; Kitab‑ul‑Khul, Vol. III, p. 260; Nail‑ul‑Autar; Madi‑Hurriyat­ul‑Zowjain‑fi‑Al‑talaq, page 621; AI‑Mizan‑ul‑Kubra, Vol. II, page 117; Mada Hurriyat‑al‑Zaujain, p. 572; Umda‑tul‑Qari, Vol. IX, p. 573; Almohallah ; Muhammadan Law, Vol. II, p. 466; M. Muhammad Ali by Religion of Islam, p. 676; Wilson: Anglo‑Muhammadan Law; Fura,I‑al‑Zauj‑fi‑al ~azahib‑al­Islamia ; Qatiun‑ul‑Ahwal‑al‑Shakhsiya , of 1959 ; Egypt by section 6 of law No. 25 of 1929; Tunis by section 25 of Mujalla­tui‑Ahwal‑ul‑Shakhsiya; Morroco by section 56 Mudawwana‑tul­Ahwal‑ul‑Shakhsiya‑al‑Maghrib; Jordan by section 96 of Qanun‑o­Huquq‑al‑Alla‑tul‑Urdani; Syria by section 112 of Qanun‑ul­Ahwat‑ul‑Shakhsiya‑Assuri; Baillie's Digest of Muhammadan Law, First Part, p. 305; Mabsoot of Al‑Sarakhsi, Vol. II; Chairman of the Commission of Marriage Laws ; Haquq‑uz­Zaujain; Fatawa‑i‑Alamgiri, Vol. II; Talkhisul Habir, Vol. III, page 205 and Muhammadan Law by Tayabji, Third Edition, sections 162 and 163 ref.

Ghazanfar Ali Gondal, Advocate Supreme Court, instructed by Wali Muhammad, Attorney for Appellant.

S. M. Almas Ali, Advocate Supreme Court, instructed by Naziruddin, Senior Attorney who was absent for Respondent.

Dates of hearing: *7th and 8th March 1966*.

VVVVVI. MUST READ JUDGEMENT.

اگر بوقت شناخت پریڈ ملزم مجسٹریٹ کے سامنے اعتراض کرتا ہے کہ اسکی گرفتاری کے بعد تھانے میں اس کو گواہان کو دکھایا گیا تھا تو مجسٹریٹ کو شناخت پریڈ کی مزید کاروائی جاری رکھنے سے پہلے اسی وقت ملزم کے اس اعتراض کا فیصلہ کرنا چاہیے اور اس اعتراض کا فیصلہ کرنے کے بعد پھر شناخت پریڈ کی مزید کاروائی کرنی چاہییے

In order to maintain secrecy, it was the responsibility of the concerned police to ensure that the accused should not witness by the witnesses while in police station lock-up or in police custody. The police was required to have taken every precaution to conceal the identity of the detainees before conducting the identification parade. All these precautions should not only be taken, but must have been proved to have been taken. There is nothing on the record to prove that any step was taken by the police in this behalf. 

Before conducting the identification parade, the accused persons had raised an objection before the Magistrate that the witnesses saw them in the lockup and their photographs were published in the newspapers in connection with some other case. The prosecution did not deny the objection. The Magistrate was required to record the objection and to decide its fate, but he ignored the objection and instead, continued to complete the process of identification parade.

Crl.P.235-L/2015

Mehboob Hassan v. Akhtar Islam, etc 

Mr. Justice Jamal Khan Mandokhail

27-10-2023

Contact: 03216010704

علاج معالجہ کے اخراجات بھی ناں ونفقہ کی تعریف میں آتے ہیں 

Whether the law does not identify “medical treatment” under the head of maintenance.

The word ‘maintenance’ as far as wife and children are concerned, is inclusive of many heads not explained but is not exhaustive. It cannot be limited by cap and has to be looked into with reference to each case. If the medical treatment either for a wife or minor does not fall within the definition of maintenance per petitioner’s counsel, then no husband would take either his wife or children for medical treatment and those dependents (under the law) would then be deprived of such maintenance allowance. Maintenance in the above context has a wide definition and is inclusive of every possible actions for the wellbeing of children and wife, indeed within means. Medical treatment is one of those which cannot be scrapped from such definition and hence cannot be disregarded as being one of the components to be considered as part for maintenance.

Word ‘maintenance’ is of wide connotation and cannot be limited by a cap in the context of Muslim family laws. Maintenance is inclusive of many heads but is not exhaustive.  

C.P.L.A.3179-L/2023

Muhammad Irfan v. Additional District Judge & others 

Mr. Justice Muhammad Shafi Siddiqui

Contact: 03216010704

https://g.co/kgs/XpLh4nK

سپریم کورٹ نے ایک بار انتہائی زور ڈیکر قرار دیا ہے کہ منشیات برآمدگی کے مقدمات میں کاروائی کی لازمی طور پر فوٹو گرافی اور ویڈیو گرافی کی جائے۔کیونکہ منشیات مقدمات میں  انتہائی سخت سزائیں مقرر کی گئی ہیں اس لیے ان مقدمات میں  ثبوت کا معیار بھی  اتنا ہی کڑا ہے 

At the very outset, it would be relevant to state that the Act of 1997 prescribes severe punishments for the possession and sale of narcotic substances. Given the gravity of the penalties, the standard of proof required to establish guilt must be correspondingly high. The prosecution must demonstrate beyond reasonable (naeem)doubt that the petitioner was in possession of narcotic substance and that it was. intended for sale. Article 164 of Qanun-e-Shahadat Order, 1984 emphasizes the importance of modern devices and techniques in the collection of evidence. It provides that evidence obtained through modern devices, such as video recordings, should be given due weight (naeem)in judicial proceedings. This provision underscores the need for law enforcing agencies to adopt contemporary methods to ensure the accuracy and reliability of evidence.

In the present case neither any video in the shape of recording and photographs of the alleged recovery has been collected by the police nor any private witness from the locality was associated to prove the alleged recovery from the possession of the petitioner. As stated above, the use of modern devices during recoveries is not merely a procedural formality but a crucial safeguard to protect innocent persons from (naeem)potential police atrocities. It provides an objective and unbiased account of the recovery process, reducing the risk of false implications and ensuring that the rights of the accused are protected. In the cases of stringent punishments, the prosecution must present clear, cogent and reliable evidence to prove the accused's guilt beyond a reasonable doubt. In the absence of video evidence and independent witnesses, the prosecution's case relies heavily on the testimony of the police officers involved in the raid, which is insufficient to (naeem)meet the required standard of proof.

We strongly recognize the need to combat the menace of narcotics, however, it must also be ensured that the rights of the accused are protected. The failure to record the recovery on video, non-association of private witnesses and failure to adhere clear judicial directives, tilts the balance in favour of the petitioner.

Crl.P. No 146 of 2025

Muhammad Abid Hussain Vs State.

27-02-2025

Contact: 03216010704

g.co/kgs/cywPdpF 

یہ ایک Landmark فیصلہ ھے جس میں نان کسٹوڈیل والدین کو اپنے بچوں سے ملنے کے لیئے ایک شیڈول ترتیب دیا گیا اگر تمام عدالتیں اس شیڈول کو فالو کر لیں تو بچوں کے حوالگی سے متعلق تقریبآ تمام مقدمات ختم ھو جائیں گے اور والدین کے جھگڑوں سے معصوم بچوں پر جو برے اثرات پڑتے ھیں ان سے بھی بچت ھو جائے گی۔۔

2018 S C M R 1991

Latest and land Mark judgment of supreme court on custody, visitation rights and maintenance of minors, and obligations of both parents:

            Supreme Court issued the following comprehensive plan with regard to custody, visitation rights and maintenance of minors, and obligations of both parents:

(i)         Both the minors shall remain with the mother.

(ii)        On every alternate weekend minors may reside with the father, who shall pickup the minors from the house of the mother on Friday at about 8:00 p.m. late evening and shall drop the minors at the house of the mother on Sunday by 01:00 p.m. in the afternoon.

(iii)       During summer vacations the custody of the minors shall be handed over to the father on the 1st Sunday of the summer vacations so declared by the School/Government and shall be returned to the mother at evening on the 4th Sunday during the vacations so that minors may have four weeks to spent with their father

(iv)       Winter vacations were generally due from 21st December to 30th December. First week of the winter vacation shall be spent by the minors with their father and second week with the mother.

(v)        During Eid-ul-Fitr the minors shall celebrate Eid with their father from chand raatat 8:00 p.m. till second day of Eid upto 08:00 p.m.

(vi)       On Eid-ul-Adha the mother shall allow the minors to celebrate Eid with their father who shall pick the minors from the residence of mother on the second day of Eid-ul-Adha at 11:00 a.m. in the morning till 3rd day of Eid at 10:00 p.m. or earlier.

(vii)      Minors may spent alternate unscheduled holidays with their father from 10:00 a.m. to 08:00 p.m. in the evening.

(viii) The father shall bear all expenses of the minors i.e. school fees, uniforms, van fees as well as other miscellaneous expenses as may be needed for the minors.

(ix)       In addition to such expenses the father shall also provide a sum of Rs.5,000/- per month for each minor for their other personal needs and requirements.

(x)        In case there was any family occasion for which the father desired and wished that his sons may also attend, he shall inform the mother who shall not unreasonably stop the minors from attending such family events and/or functions.

(xi)       Both the mother and father shall not do any act that may prejudice the minors' mind towards the other parent.

2018 S C M R 1991

[Supreme Court of Pakistan]

Present: Mushir Alam, Faisal Arab and Sajjad Ali Shah, JJ

Mst. MADIHA YOUNUS---Petitioner

Versus

IMRAN AHMED---Respondent