Onus of proof regarding age is on accused person to establish his claim regarding juvenility

PLJ 2014 SC 1105
[Appellate Jurisdiction]

Present: Asif Saeed Khan Khosa, Sarmad Jalal Osmany & Umar Ata Bandial, JJ.

SHER BAHADUR–Petitioner

versus

FAYYAZ, etc.–Respondents

Crl. Petition No. 368 of 2014, decided on 22.8.2014.

(Against the judgment dated 27.5.2014 passed by the Peshawar High Court, Peshawar in Criminal Revision No. 89 of 2011).

Constitution of Pakistan, 1973–

—-Art. 185(3)–Juvenile Justice System Ordinance, 2000–Scope–Child–Copy of school certificate and NIC without even verifying–Question of–Whether documents were genuine or authentic or not–Juvenile at time of occurrence–Delayed claim of juvenility an adverse inference–Validity–High Court, had erred in law by holding that in case of a doubt regarding an accused person’s age benefit of such doubt is to be extended to accused personOnus of proof regarding age is on accused person to establish his claim regarding juvenility through positive evidence and if there is any doubt left in matter then he cannot take advantage of that doubt–Petition allowed.         [P. ] A & B

2007 SCMR 936, 2003 SCMR 855, PLD 2003 SC 656, PLD 2007 SC 111 & PLD 2007 Lah. 650 & 2012 SCMR 1400, rel.

Mr. Noor Alam Khan, ASC and Syed Rifaqat Hussain Shah, AOR for Petitioner.

Nemo for Respondents.

Date of hearing: 22.8.2014.

Order

Asif Saeed Khan Khosa, J.:

Criminal Miscellaneous Application No. 491 of 2014

This miscellaneous application is allowed as prayed for. Disposed of.

Criminal Petition No. 368 of 2014

  1. It has inter alia been contended by the learned counsel for the petitioner that for recording a finding that Respondent No. 1 was a `child’ within the purview of the Juvenile Justice System Ordinance, 2000 the Peshawar High Court, had relied upon a copy of the Secondary School Certificate (Exhibit-D1) pertaining to Respondent No. 1 and the National Identity Card of the said respondent without even verifying as to whether the said documents were genuine or authentic or not. The learned counsel for the petitioner has pointed out that Respondent No. 1 had never claimed before the learned trial Court at any stage that he was a juvenile and in this respect he has submitted that the charge framed against Respondent No. 1 recorded the age of the said respondent as twenty-four years (about twenty-one years at the time of occurrence), in the statement of Respondent No. 1 recorded under Section 342,Cr.P.C. the said respondent had never claimed that he was a juvenile and in the memorandum of his appeal filed before the High Court the said respondent had never taken any ground that he was a juvenile at the time of the occurrence. It has been maintained by the learned counsel for the petitioner that the Peshawar High Court, Peshawar had failed to notice that this Court had already repeatedly declared that in case of a delayed claim of juvenility an adverse inference is to be drawn against the accused person and in this respect he has referred to the cases of Sultan Ahmed v. Additional Sessions Judge-I, Mianwali and 2 others (PLD 2004 SC 758), Sarfraz alias Shaffa v. The State and 3 others (2007 SCMR 758) and Muhammad Aslam and others v. The State and another (PLD 2009 SC 7777).The learned counsel for the petitioner has further submitted that the Peshawar High Court, Peshawar had erred in law by holding that in case of a doubt regarding an accused person’s age the benefit of such doubt is to be extended to the accused person. He has submitted that in such a case the onus of proof regarding age is on the accused person to establish his claim regarding juvenility through positive evidence and if there is any doubt left in the matter then he cannot take advantage of that doubt. In this regard he has referred to the law declared by this Court in the cases ofMasood Sarwar v. Sadaqat Hussain and others (2007 SCMR 936), Tauqeer Ahmed Khan v. Zaheer Ahmed and others (2009 SCMR 420), Muhammad Akram v. The State (2003 SCMR 855), Muhammad Ajmal v. The State through Advocate-General Punjab (PLD 2003 SC 1), Ziaullah v. Najeebullah and others (PLD 2003 SC 656) andIftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111). He has also referred to the case of Babar Ali v. The State and 2 others (PLD 2007 Lahore 650) decided by a Full Bench of the said Court wherein the judgment had been authored by one of us (Asif Saeed Irfan Khosa, J.). He has also drawn our attention towards a case decided by the Supreme Court of India on the subject and that was the case of Om Parkash v. State of Rajasthan and another (2012 SCMR 1400).
  2. The contentions and submissions of the learned counsel for the petitioner noted above require consideration. This petition is, therefore, allowed and leave to appeal is granted for the purpose. As the matter in hand  pertains to an order of remand passed by the Peshawar High Court, Peshawar, therefore, the matter has an inherent urgency involved therein. The office is directed to fix the main appeal for regular hearing before the year 2014 is out.

Criminal Miscellaneous Application No. 492 of 2014

  1. As leave to appeal has already been granted in the main petition, therefore, the operation of the impugned judgment passed by the Peshawar High Court, Peshawar on 27.05.2014 is suspended.

(R.A.)  Petition allowed

Juvenile Justice System Ordinance 2000

Important Postulates

1- Child means: a person who at the time of commission of an offence has not attained the age of eighteen years.
This means that less than 18 years , a person is a child.
2- Legal assistance to child: any child who is victim or accused have the right of legal assistance .
3- Legal assistance: Government of Pakistan shall pay for the legal assistance .
4- Following people can be present in Juvenile court: Members and officers of the court -Parties to the case – Guardian of the child-Others person directed by court to be present in court.
Medical treatment: If a child brought before Juvenile court requires mental or physical treatment he shall be treated at the expense of state.

Some Important Legal Queries and Case Law Citations

Some Important Legal Queries and Case Law Citations

  1. 2000 SCMR 296: If law provides more than one remedies against any order /decree or judgement, than no one allowed availing more than one remedy.
  1. PLD 2011 SC 260: Condition of any payments by husband in the event of giving divorce to wife as stipulated in NIKAH NAMA is not a valid condition and no such claim can be granted by court.
  1. 2009 PCr LJ 151: Violation of Section 103 Criminal Procedure Code makes the case of the person one of the further inquiry under section 497 (2)
  1. 2015 MLD 335: When no date, place, time and witness of an oral agreement was placed , decree in such like cases is exceptional.
  1. 1988 CLC 654 & 2003 CLC 737: Application for setting aside of ex-parte decree could not be decided in summary manner without framing issue and recording of evidence.
  1. 2010 SCMR 1254: If the question of title of a property was pending the complaint under illegal Dispossession Act regarding the same is not competent.

Courts of Pakistan are foreign Courts–Judgment and decrees passed by those Courts were not executable in Azad Jammu and Kashmir under any provision of law

PLJ 2006 AJ&K 1

Present: Muhammad Reaz Akhtar Chaudhry, C.J.

MUHAMMAD SIDDIQUE R ATHORE–Petitioner

Versus

MUHAMMAD MUZAFFAR KHAN–Respondent

C.R.No. 144 of 2004, decided on 29.12.2004.

Civil Procedure Code, 1908 (V of 1908)–

—-Ss. 10 & 115–Two suits for specific performance of agreement to sell relating to same plot–Suit filed by plaintiff was pending in civil Court at Muzzafarabad while suit filed by defendant was pending in civil Court, Islamabad–Defendants application under S. 10 C.P.C. that suit filed at Muzaffarabad be kept in abeyance till disposal of suit filed by him at Islamabad–Defendants application was rejected–Legality–Courts of Pakistan are foreign CourtsJudgment and decrees passed by those Courts were not executable in Azad Jammu and Kashmir under any provision of law–Where decrees passed by Courts of Pakistan were not executable proceedings sub-judice in Azad Jammu and Kashmir cannot be kept in a abeyance on ground that on basis of same cause of action, suit was sub-judice in a Court of Pakistan–Order of trial Court refusing to keep in abeyance suit filed by plaintiff at Muzzafarable does not warrant interference in revisional jurisdiction, therefore, the same was maintained. [P. 4] A

1985 CLC 1309; PLD 1993 AJ&K 1; 1986 CLC 1309; PLD 1954 AJ&K 1 and PLJ 1976 AJ&K 9, ref.

Khawaja Muhammad Aslam Habib, Advocate for Petitioner.

Khawaja Muhammad Nasim, Advocate for Respondent.

Date of hearing : 29.12.2004.

Judgment

The supra titled revision petition is directed against the order of learned Senior Civil Judge Muzaffarabad dated 24.11.2004, whereby he has declined to keep the proceedings pending under Section 10 of CPC.

  1. The relevant and necessary facts for the disposal of the instant revision petition are, that the non-petitioner brought a suit for declaration in the Court of Civil Judge Muzaffarabad, to the effect that Plot No. 280 measuring 600 yards situated in Sector G/15/1 Khayaban-e-Kashmir Islamabad was allotted to him vide order dated 25.11.2003. He sold the said plot through an agreement to sell in lieu of Rs. 35 lac to the petitioner-defendant. An amount of Rs. 5 lac was paid through cheque while the remaining amount of Rs. 30 lac was to be paid within period of six weeks. After six weeks, the petitioner-defendant did not make payment. The plaintiff asked him to make the payment of the remaining amount, but he did not make the payment. Thus, the agreement has been revoked by him as it contained such a condition. It was craved that it may be declared that the defendant has no right on the said plot and he has not paid the remaining amount of Rs. 30 lac within the stipulated period. Therefore, now this agreement has been become void. It may be declared as such.
  2. Regarding the same plot another suit was filed by the petitioner in the Court of learned Civil Judge Islamabad for specific performance of the contract. The petitioner moved an application before the trial Court under Section 10, CPC to the effect that the suit may be kept in abeyance till the final disposal of the suit by the Court of Islamabad. This application was turned down by the trial Court. Hence the instant revision has been filed.
  3. The learned counsel for the petitioner argued that the Civil Court Islamabad has jurisdiction to try the subject-matter of the suit, because the plot is situated at Islamabad. He contended that under Section 10, CPC it was enjoined upon the trial Court to keep the proceedings in abeyance but the said Court declined to keep the same pending without any reasonable justification. He referred Section 10 of the CPC and submitted that in presence of the former suit, the subsequent suit was to be kept in abeyance, but the trial Court has failed to follow the procedure prescribed in the CPC.
  4. While controverting the arguments of the learned counsel for the petitioner, the learned counsel for the non-petitioner contended that the Court of Civil Judge Islamabad is a foreign Court and under Section 10 CPC the trial Court of Muzaffarabad was not legally competent to keep the proceedings in abeyance, on the basis of the proceedings subjudice in a foreign Court. He further contended that when the Court of Islamabad is a foreign Court and a decree of that Court is not executable in Azad Jammu & Kashmir, then how the proceedings in Azad Jammu & Kashmir Court could be stayed. He referred 1985 CLC 1309 and PLD 1993 AJ&K 1 in support of his contention.
  5. I have heard the arguments and gone through the record.
  6. Section 10, CPC visualized that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, but there is an exception to this rule which is provided in explanation which contained that:–

“The pendency of a suit in a foreign Court does not preclude the Courts in Azad Kashmir from trying a suit founded on the same cause of action.”

  1. The aforesaid explanation clearly contained that the pendency of the suit in Civil Court of foreign country does not preclude the Courts in Azad Kashmir from trying the suits founded on the same cause of action. Now the question which perturbs my mind is whether the Courts of Pakistan are foreign Courts? This point has already been resolved by the High Court of Azad Jammu & Kashmir. Same like proposition arose before the Division Bench of the High Court of Azad Jammu & Kashmir in a case titled “Mian Nasir Ahmed vs. Abdur Rashid Qureshi” [1986 CLC 1309] [1312]. The relevant observations are reproduced as under:–

“The judgment and decree upon which the precept proceeded was a judgment and decree of a foreign Court which could not be executed in Azad Jammu & Kashmir with the result that since the Court of sub-Judge, Mirpur was not competent to execute the said decree he also lacked the jurisdiction and power to execute the precept because under Section 46 CPC the Court passing the decree is only empowered to issue a precept to any other Court which is competent to execute such a decree which is the foundation of such a precept. The foreign judgment has been defined in Section 2(6) of the CPC, as the judgment of the foreign Court and foreign Court according to the definition in Section 2(5) of the CPC means a Court situate outside  Azad   Kashmir   and  not  established  or  continued  by  the authority of the Azad Jammu & Kashmir Government. In view of the above definition of “foreign judgment” and “foreign Court” the Courts in Pakistan are all foreign Courts so far as the Azad Kashmir is concerned, and the judgments passed by them are foreign judgments. This has already been held in number of cases by the superior Courts of Azad Kashmir out of which PLD 1954 AJ&K 1 and PLD 1976 AJ&K 9 may be referred to. The decree passed on the basis of such judgment is not executable in Azad Kashmir as there is no provision in CPC under which the decree of the foreign Court can be executed in Azad Kashmir.”

  1. In the aforesaid report it has clearly been laid down by the Division Bench of the High Court that the Courts of Pakistan are foreign Courts and the judgments and decrees passed by those Courts are not executable in Azad Jammu & Kashmir under any provision of law. When the decree passed by the Court of Pakistan is not executable in Azad Kashmir then how the proceedings subjudice in Azad Jammu & Kashmir can be kept in abeyance, on the ground that on the basis of the same cause of action, a suit is subjudice in the Court of Pakistan. Same like proposition came up for consideration before the Full Bench of the High Court of Azad Jammu & Kashmir in a case titled “Muhammad Miskeen etc. vs. Govt. of Pakistan and others” (PLD 1993 AK 1], wherein it was held that Rules of Procedure of Azad Jammu & Kashmir High Court do not restrict the jurisdiction of the High Court to proceed with a suit or proceedings which were subjudice before a High Court of Pakistan or some other country–institution of a writ petition in the High Court in Pakistan cannot stop the proceedings in Azad Jammu & Kashmir on the grounds that on the basis of same cause of action the proceedings are subjudice before the Court of Pakistan and as such was observed by the Full Bench of this Court in the aforesaid report.
  2. The upshot of the above discussion is that finding no substance in this revision petition, it is hereby dismissed with no order as to cost.

(A.A.)  Petition dismissed.

A history of the century-old celebration of female rights and empowerment

By

  • March 2, 2015 11:32 GMT
International Women's Day
10th March 1973: Women take part in a march to celebrate International Women’s Day in London(Getty)

From campaigning for women’s suffrage to equal representation in politics, International Women’s Day has celebrated the social, economic and political achievements of women for more than a century. Observed annually on 8 March, the day is an opportunity to celebrate the accomplishments of women while calling for greater equality and drawing focus on women’s rights.

The day has manifested itself in many different forms in the last 100 years, from its beginnings in women’s suffrage to highlighting violence against women in the 21st century. Yet the aim of the date has endured – to push governments to recognise the necessity of sex and gender equality in law.

“International Women’s Day is a great opportunity to highlight the continued challenges faced by women and girls across the world – at home and abroad,” Antonia Kirkland of the international human rights organisation Equality Now tells IBTimes UK.

“The day is a key moment to help ensure that both international and national-level policy makers recognise the importance of equality in the law to end all forms of violence and discrimination against girls and women through good laws that promote the human rights of women and girls, including legal, social, economic, civil and political equality.”

Thousands of events now take place around the world for IWD. But where did the day come from?

IWD
8th March 1984: Feminists demonstrate on the streets of Madrid(Getty)

Earliest demonstrations

Although there have been women-led marches, strikes and other protests since 1909, none happened on the 8 March. The earliest Women’s Day observance was held on 28 February 1909 in New York, organised by the Socialist Party of America in remembrance of the 1908 strike of the International Ladies’ Garment Workers’ Union.

In August 1910, an International Women’s Conference was organised to precede the general meeting of the Socialist Second International in Copenhagen, Denmark. German socialist Luise Zietz, inspired by the American socialists, proposed the establishment of an International Woman’s Day to promote equal rights and women’s suffrage – which was seconded by fellow socialist Clara Zetkin.

On 19 March 1911, IWD was observed for the first time by over a million people in Denmark, Germany, Austria and Switzerland. Women demanded that they be given the right to vote and hold public office and protested against employment sex discrimination. The day was first observed by Russian women in 1913 on the last Sunday in February.

Russian revolution

The first observance of IWD on 8 March was in 1914. British suffragette leader Sylvia Pankhurst was arrested in front of Charing Cross station on her way to speak in Trafalgar Square in London, amid a march from Bow in support of the right to vote. Three years later, IWD demonstrations in Saint Petersburg initiated the February Revolution.

Russia had been suffering from a number of economic and social problems, compounded by the impact of World War I. Russian women went on strike on IWD for “bread and peace” – demanding the end of the war, an end to food shortages and the end of czarism.

IWD
Soldiers carry a red flag on their bayonets during the 1917 February Revolution in Russia(Getty)

Mass demonstrations and armed clashes with police and gendarmes, the last loyal forces of the Russian monarchy, eventually led to the abdication of Tsar Nicholas II at the end of the Romanov dynasty and the Russian Empire.

Following the October Revolution later that year and the establishment of the Soviet Union, an official day was adopted and celebrated in communist and socialist countries – from 1922 in China and by Spanish communists from 1936. In the West, IWD was first observed as a popular event after 1977 when the UN General Assembly invited member states to proclaim 8 March as the UN Day for women’s rights and world peace.

Modern observance

Since the earliest celebrations, IWD has grown into global movement in both developing countries and wealthier states. The theme for 2015 is “Make It Happen” – calling for further action for advancing and recognising women, from ending the violence that affects one in three women worldwide, to increasing the global number of female parliamentarians from 22%.

Strengthened by four global United Nations women’s conferences, the commemoration of IWD is a rally point to build support for women’s rights and participation in the political and economic arenas, while reflecting on the acts of courage and determination made by women in the fight for equality so far.