THE DOCTRINE OF LACHES: PRINCIPLES AND APPLICATION IN

PAKISTAN
By:
HAROON YAZDANI*
This article analyses the doctrine of laches and rudiments thereof. The doctrine of laches finds its footing in equity,
as opposed to common law; therefore, it has developed in a manner distinct to the latter. The doctrine, in essence,
deals with the refusal to extend discretionary and/or equitable relief vested in a Court, as prayed for by a claimant,
on the ground that such relief, if allowed, shall prejudice the opposite party. This prejudice must be attributable to
the lethargy and idleness of the claimant, amounting to a waiver to exercise his rights. With such history, the
claimant, therefore, shall be precluded from seeking discretionary or equitable relief, as a right in favour of the
opposite party shall have accrued due to the tardiness, coupled with unreasonableness, of the claimant. This is
determined by the Court, by using a scale on which the balance of equities is judged upon. The article further
examines the principles and guidelines of the defence of laches, and the difference between laches and statutory
limitation. The aspect of quantifying time for laches is also touched upon. The application of the doctrine of laches
in Pakistan has been restricted to the constitutional jurisdiction of Courts, and the practice is not in complete
conformity with the law laid down on the subject. While concluding, the article also poses questions that may need
to be addressed as the doctrine develops and its use increases.
Introduction
Equity permeates the vacuum that law leaves behind in its wake. It treads upon paths untrodden, travels upon
territories untraveled, traverses upon regions untraversed; albeit always complementing law in its letter and spirit,
following it in instances, but not otherwise.[1]
Historically, in common law jurisdictions, two parallel court systems existed, i.e. Court(s) of law and
Court(s) of equity. The former would decide cases based upon previous decisions of Court(s), while the latter would
resolve matters based upon good conscience. The Court(s) of equity could dispense remedies such as injunctions,
specific performance, and writs; while the Courts of law could award damages.
The doctrine of laches found its way into jurisprudence in order to perpetuate equity, and as a consequence,
prevent inequity. This doctrine originated and grew in the Courts of equity; though after the merger of both the court
systems into one, the regular courts would exercise jurisdiction and grant combined reliefs, rather than as they would
individually.
Laches became an instrument for the Courts to measure whether equitable relief was to be granted or not.
This was an effort to prevent injustice and prejudice that could be caused to the party against whom such relief was
claimed, due to a failure to act and unreasonableness of the claimant.
The U.S. Supreme Court in Brown v County of Buena Vista[2], while examining the development of the
doctrine, held that the law of laches, similar to the principle of ‘limitation of actions’, had been dictated by
experience, as with the lapse of time, the memories and lives of witnesses diminish, along with the evidence and
other means of proof. This rule was held to be necessary for the peace and welfare of the society at large; a deviation
therefrom would allow an influx of evils intended to be excluded. Over the course of jurisprudential development,
this doctrine has evolved to a great extent, yet leaving room for debate as to the parameters of its application.
This article considers firstly, an analysis of the doctrine of laches and its main principles. Secondly, as it is
important to make a distinction between this doctrine and statutory limitation, the article thereon discusses the same.
Thirdly, the application of this doctrine in Pakistan is explored along with the scenarios where it would or would not
apply. Towards the end, the article refers to the issue of quantifying reasonability of ‘time’ in this doctrine whilst
drawing a comparison with statutory limitation.
Definition of Laches
“Laches, is an old French word for slackness or negligence.”[3] This equitable doctrine surfaces from the word
‘laches’ or ‘lasches’ and this meaning was endorsed in the case of Partridge v Partridge.[4] It has been further
explained in the succeeding manner:
“Negligence, consisting in the omission of something which a party might do, and might reasonably be
expected to do, towards the vindication or enforcement of his rights. The word is generally the synonym
of ‘remissness,’ ‘dilatoriness,’ ‘unreasonable or unexcused delay,’ the opposite of ‘vigilance,’ and means
a want of activity and diligence in making a claim or moving for the enforcement of a right - or for
refusing relief, where that is discretionary with the court.” [5]
The doctrine of laches is embosomed within the Latin maxim “vigilantibus, non dormientibus, jura subveniunt”[6],
defined literally as “the laws assist those who are vigilant, not those who sleep over their rights”. To oversimplify
for understanding, it can be said that delay defeats equity. In the general sense, laches entails neglect that is
unreasonable and for an inexplicable length of time, thereby occasioning disadvantage to the other party. [7]
The Principles of Laches
Lord Camden in Smith v Clay[8], while expressing the premise of laches, succinctly reasoned that the Court will not
be active to entertain such claims where a party has delayed asserting a right, acquiesced, and intends to cause
inconvenience to the other party by approaching the Court with a stale demand. It was further stated that the Court
shall act upon conscience, good faith, and reasonable diligence; and where these are lacking, the Court shall refuse
to approve such neglectful conduct. Essentially, laches is an equitable defence, besought by the opposite party,
against the demand of the claimant to being entitled to equitable relief by the Court. The defence is rooted in the
conduct of the claimant, coupled with tardiness, which prejudices the other party to the extent that it shall be
inequitable, and unjust, to grant relief to the claimant at the expense of the other party. [9] Subject to the facts and
merits of each case respectively, the elements of the equitable defence of laches crystallize into the following [10]:
i. There should be an inordinate delay by the claimant in approaching the Court praying for
discretionary or equitable relief.
ii. The said delay must be unconscionable; and that too, to the extent that such delay creates a right, so
to speak, in favour of the respondent, and adverse to the claimant. Such a delay amounting to a
waiver, or acquiescence, shall preclude the claimant to exercise his claim, and he shall be estopped
from doing so in these circumstances. Such a claim favouring the claimant, if acceded to, shall be
inequitable.
Through its leading judgment in Lindsay Petroleum Co. v Hurd[11], the Privy Council elucidated the
functioning of the doctrine of laches. It was laid down that the doctrine does not suffer from arbitrariness, nor is it
technical in nature. Rather, it is applicable where it is practically unjust to give a remedy due to the conduct of the
party claiming it. This neglectful conduct may either be equivalent to a waiver, or it puts the other party in a place
where it would not be reasonable to grant a remedy. The delay and lapse of time are material, and the validity of the
defence based upon them must be tried upon equitable principles. The most vital aspects in cases relating to laches
were the length of the delay, and the nature of acts or the omissions that took place during that time.
It is reiterated that the defence of laches depends heavily on the peculiar facts and circumstances of each
case. Therefore, the adjudication with regards to the reasonableness of duration of the time elapsed, conscionability
of the delay, the degree of diligence exercised, the degree of change effected subsequently, and the overall balance
of equities, rests solely upon the Court itself. While deciding whether to extend discretionary relief or withhold the
same, the Court in these situations shall be guided by this precise backdrop and nature of the lis, and apply its
judicious mind, coupled with good conscience.[12]
The doctrine of laches emanates from the conduct of the claimant itself. Hence, where a defence of laches
is sought by the respondent, the onus to dispel the prima facie presumption of prejudice caused to the respondent
rests on the shoulders of the claimant alone. Where it is established, after due consideration, that the claim suffers
from laches, and that it shall be practically unjust to extend an equitable relief, the claim may be dismissed without
touching upon, otherwise, the merits of the case. Care, though, may be exercised in not dismissing a petitioner
altogether in a slipshod manner, but instead deciding after hearing and due deliberations, thereby upholding the
spirit of equity and justice.
The Difference between Laches and Statutory Limitation
It is important to discuss both concepts in detail, in order to ascertain the relationship and the distinctions between
laches and statutory limitation(s). Firstly, it is to be appreciated that limitation is a creature of the statute, while
laches is an equitable doctrine. There are claims for which a specific limitation period is provided under a statute,
and there may be some for which no such period is stipulated. In cases where a limitation period has not been
prescribed, and the relief being sought is equitable/discretionary in nature, a defence of laches may be sought, but
not otherwise. This view is generally accepted but is debatable.[13]
The concept of statutory limitation therefore entails a strict scheme with definite time intervals that need to
be stringently adhered to. The claimant is stopped by statutory limitation to bring his claim to the Court after the
effluxion of time specified, i.e. the claim is time-barred. This is the general outcome. However, this does not include
circumstances where there is a reasonable explanation for the delay, including being prevented by a sufficient cause,
or any of the other grounds available through the same statute of limitation, in which case the delay may be
condoned by the Court.
Pitted against the arbitrary time limits of statutory limitation, laches is more of a fact-sensitive and flexible
defence. Mere delay would not bar the claimant as it would through statutory limitation; however, this will occur if
the delay is paired with action or omission which makes it unconscionable to proceed, and unjust to grant relief. A
delay of a single day to that of decades could constitute laches; hence no hard and fast rule exists. Both, though,
serve the same purpose of deprecating stale demands and putting a clog on litigation, which would have otherwise
been unending.
The Supreme Court of Pakistan expounded thoroughly on the distinguishability of statutory limitation with
laches in Pakistan Post Office v Settlement Commissioner & others[14]. It was authoritatively held that laches and a
statutory bar of limitation could not be equated, and absolutely no justification existed for doing the same. It was
clarified therein that laches operates as a bar in equity, while statutory limitation operates as a legal bar to the grant
of remedy. Thus, for laches, the dictates of equity and justice need to be weighed, whereas for statutory limitation,
relaxations may be extended through the operation of the statute itself. It was further held that statutory limitation is,
comparatively speaking, a harsher law, as the Court shall not be able to exercise discretion as it could while dealing
with laches in equity. Therefore, the aspect of condonation of delay under the statute of limitation [15] shall be on
different and perhaps harder considerations than those in the case of laches. In the case of statutory limitation, the
delay of each day needs to be explained, whereas there is no such strict requirement for laches.
The Application of Laches and the Constitutional Jurisdiction of Courts
The application of the doctrine in the Pakistani milieu commenced in accordance with common law jurisprudence.
The foremost case, reported locally, that dealt with the question of laches and stood out as a guideline was John
Objobo Agbeyegbe v Festus Makene Ikomi.[16] The said case highlighted the dicta laid down in the Lindsay
Petroleum Co.[17] case (as has been discussed earlier). Therefrom, the doctrine developed further; yet, as it has
developed, the applicability of this doctrine raises questions that need to be adverted to – the same are dilated upon
hereinbelow.
 In practice, the doctrine of laches is seen to come into play when a petitioner approaches a constitutional
court – that is, the High Court(s) and/or the Supreme Court of Pakistan in its original constitutional jurisdiction [18],
under the Constitution of the Islamic Republic of Pakistan 1973 (hereinafter referred to as ‘Constitution’) – for the
grant of extraordinary discretionary relief. In such proceedings, especially before the High Court(s) under Article
199 of the Constitution, the preliminary question that is asked of the petitioner by the Bench is regarding laches. It is
pertinent to mention here that this is mostly inquired of in limine.[19] To address this, reference firstly must be made
to the aforementioned landmark case Pakistan Post Office v Settlement Commissioner & others[20], wherein a three-
member Bench of the Supreme Court of Pakistan held:
“An occasion to meet the point of laches in writ petition arises when a specific plea is taken by the
opposite-party in a written statement. When no such plea is taken or when taken, adequate time and
opportunity is not afforded to the writ petitioner to meet it, the High Court would not be justified in
dismissing the writ petition on the assumption that no explanation is offered by the counsel arguing the
case.”
The view expounded by the Supreme Court is unequivocal and there may not be any other interpretation. This
observation is principally justified from the fact that laches is a ground for defence which is put up by the opposite
party. It is the latter against whom a right has accrued by the laches of the petitioner, and only he may raise such a
plea, through his pleadings, to his benefit. An inquiry as to laches in limine, in the absence of the opposite party,
shall be counter to the tenets of the doctrine itself. Any inference made at this stage regarding laches, with all
humility, shall be based on nothing more than mere assumptions, stemming from extraneous circumstances and
surmises. It is only the opposite party, acquainted with the precise facts of the case, which can raise such an
objection, as a right may have developed in its favour. In these situations, the Court may judge upon the plea so
raised as a preliminary issue of law emanating from the specific facts, rather than inquiring suo motu at the outset.
The balance of equities needs to be adjudicated upon, which can only be done once the stance of both the parties is
laid out before the Court. Even otherwise, the precedent referred to hereinbefore is binding upon the Courts [21], and
is prevailing law which has not been overruled or invalidated in any manner.
The Peshawar High Court, in Muhammad Shafiullah v Government of Pakistan & others[22], while adhering
to the aforementioned principle of vertical stare decisis[23], adopted the dictum under discussion, and ruled that since
the respondents had failed to specifically agitate the question of laches while submitting their written reply, it was
too late to press the same at the time of closing arguments. It may also be appropriate to add here that the law of
evidence[24] places the burden of proving a fact, specifically in the knowledge of a person, upon him. Therefore, the
fact of prejudice that may have been caused to a party, due to the laches of the claimant, is to be asserted and
established by the same party itself. It would hence be safe to infer that a defence of laches must be raised through
pleadings as it is factual in nature; if it has not been done so, such a ground may not be entertained afterwards or in
any other manner. It shall be equivalent to going beyond pleadings. Nevertheless, without prejudice to the generality
of the foregoing discussion, it is submitted that the Supreme Court, to do complete justice, while exercising its
powers under Article 187 of the Constitution, may approach the matter appropriately, all the while exercising
caution so as to not trample over it, thereby nullifying the doctrine completely.
A full bench of the Supreme Court has held in Jawad Mir Muhammadi and others v Haroon Mirza [25] that a
defence of laches does not operate as a bar to constitutional jurisdiction per se. The question of delay must be
examined with reference to the facts of each case. Such a question requires serious consideration, and unless there is
a plausible and satisfactory justification explaining the delay in filing the constitution petition, the same cannot be
ignored or overlooked, subject to the specific facts of a case. Yet, the plea of laches is only available to a respondent
who acts bona fide under the confidence that what he is doing is legal and proper. The plea of laches cannot be
raised by a respondent whose own conduct has been on account of manipulation contrary to law. [26]
Once a defence of laches has been validly raised, in the manner elaborated hereinbefore, there may be two
options available to the claimant against the opposite party. Firstly, the claimant may choose to consider getting the
laches condoned. With regards to the condonation of laches, no yardstick or hard and fast rule exists to condone the
same. This view is fortified by the following observations, inter alia, made in the Pakistan Post Office case[27]:
“In the cases of laches, however, the principles of condonation would be totally different. It being in the
field of equity, it will not be denied: where either the negligence is not culpable vis-à-vis the merits of the
case; or, when there is no equity in favour of the party who would be the gainer in case the condonation is
denied.”
The Court must be inclined to condone laches if the factors mentioned in the above-quoted dictum are present. It
must be taken into consideration that there have been instances where laches of days, and up to years, have been
condoned. However, this is based upon the precise facts of each case respectively. No specific formula in the form
of a mathematical equation can be created for application, owing to the distinguishable nature of each and every
case. In the aforementioned case, the Court has observed that condonation of laches should be on lenient terms as
compared to condoning delay under statutory limitation which is stricter. This approach, visibly, is defensive in
nature, as it beseeches the magnanimity of the Court to oblige the claimant who is powerless and now at the mercy
of another prerogative, which the Court may or may not exercise in his favour, although equity is at the heart of the
verdict.
In S. A. Jameel v Secretary to the Government of the Punjab and others [28], the Supreme Court echoed the
principle that laches has to be examined on equitable principles as the Court exercising its constitutional jurisdiction
is discretionary in nature. Such discretion is based upon equity and shall be exercised in favour of the party equity
leans towards, instead of the party guilty of culpable negligence, in which case the party shall be non-suited.
However, once again this rule is subjective, varying with the facts of each case. Reference may also be made
to Member (S&R)/Chief Settlement Commissioner v Ashfaque Ali[29], decided by the Apex Court, propounding
similar principles.
The second option available would be to rebut the defence raised. A primary way of achieving this could be
by establishing before the Court that the claimant has been prosecuting the cause diligently, hence his conduct does
not deprive him from such discretionary relief. This may be established through the chain of facts specific to the
case. Countering the notion of laxity is crucial. Therefore, if the claimant has been persistently pursuing the claim
before different fora, exhibiting diligence, and/or running from pillar to post, a defence of laches in such cases shall
fail. It shall also be helpful in dispelling the notion of prejudice caused to the opposing party. If no such prejudice
has been caused, and there is no equity leaning in their favour, laches shall not come to their rescue.
Recurring cause of action is another ground that can be taken against a defence of laches. Recently,
in Pakistan Telecommunication Employees Trust v Federation of Pakistan [30], the Supreme Court held that the
annual deduction of zakat gives rise to a fresh cause of action every time to challenge its validity, hence laches does
not apply to it. Such inference has earlier been applied to similar recurring causes such as the denial of pension [31],
and salary which accrues every month. In the same manner, it may also be applied to cases with facts on the same
footing. The Supreme Court, in Umar Baz Khan v Syed Jehanzeb[32], has held that a bar of laches could not be
overemphasised in a case where the relief claimed was based on a recurring cause of action.
At this juncture it shall be pertinent to add that assertion of fundamental rights [33] as guaranteed in the
Constitution cannot be denied through the application of laches. The Courts must ensure protection and
implementation of fundamental rights; therefore an equitable doctrine cannot curtail, deny, infringe, undermine, or
usurp the exercise of fundamental rights. The said dicta was applied by the Apex Court in Pakistan Muslim League
(N) through Khawaja Muhammad Asif and others v Federation of Pakistan through Secretary Ministry of Interior
and others[34]. The Supreme Court therein further held that it depends upon a citizen to exercise such rights
whenever he wishes so, and no time limit can be prescribed for claiming them. The Constitution grants supreme
importance to fundamental rights and they cannot be disturbed by any legislative device or executive measures;
however reasonable restrictions may be imposed by law in public interest.
Assailing an order on the ground of the same being void may repel a defence of laches, if the order being
void is also improper and unjust besides being illegal. The Court may not, as of rule, hesitate to set aside the order
under challenge despite the objection regarding laches. But if the order is just and proper, notwithstanding being
otherwise void, the delay in approaching the Court shall be fatal. The said principle, as laid down in the Pakistan
Post Office case[35], and relied upon in Masooda Begum through Legal Heirs v Government of Punjab through
Secretary Forest, Lahore and others[36], is based upon the analogy that injustice cannot be allowed to be perpetuated
with the blessings of the Court in its discretionary jurisdiction. Discretion of the Court must always be exercised in
aid of justice rather than falling prey to technicalities, and perpetuating inequity and injustice as a result. [37] Hence
laches would also lose its relevance in cases where mala fide is asserted and brought to the notice of the Court. [38]
A Division Bench of the Sindh High Court in Abdul Khalique Soomro & others v Government of Sindh &
others[39] identified instances where delay is not an absolute bar on the exercise of discretionary constitutional
jurisdiction under Article 199 of the Constitution. They are, where the delay is explained; where there is a patent
want of jurisdiction; where there is a provisional order and delay cannot be computed until a final order is made;
where the Government has been extending hopes to the petitioner from time to time; or where an impugned order
becomes vulnerable if continued beyond a specified temporary period, like an order of requisition of premises. On
the contrary, the Division Bench also observed that the Court would refuse to grant relief under Article 199 of the
Constitution where the opposite party has been induced to alter its position, where other interests have come into
being, or where a suit, had it been brought on the same cause of action, would have been barred by statutory
limitation.
Dismissing a claim based upon laches, without examining the dictates of justice with respect to the
contesting parties, in addition to the examination of law and jurisdictional points involved in the case, shall be
unwarranted. Reliance may also be placed upon State Bank of Pakistan through Governor & another v Imtiaz Ali
Khan and others[40] in which the Supreme Court has comprehensively discussed the dynamics of laches while
upholding the pronouncements made in the judgments op cit.
Quantifying Time in Laches
While concluding in the Pakistan Post Office case[41], the Supreme Court observed as under:
“Before parting with this judgment it needs to be observed that although the question of applicability of
the Article 181 of the Limitation Act to the filing of writ petition has not been argued at the bar, it might
nevertheless require examination in a proper case. It has been held by this Court in Hussain Bakhsh v.
Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1, that such proceedings before the High
Court are of civil nature and C.P.C. applies except when excluded. Whether similar argument cannot be
raised regardings limitation might need examination.”
Before continuing discussion on the observation cited above, it would be appropriate to state here that the Supreme
Court, in Pakistan International Airline Corporation & others v Tanweer-ur-Rehman & others[42], observed that an
ordinary person filing a petition, by invoking jurisdiction of the High Court under Article 199 of the Constitution [43],
has to approach the Court within reasonable time. The Apex Court further observed that although no definition of
the term ‘reasonable time’ is available in any instrument of law, however, the Courts have interpreted it to be 90
days. Reference in this behalf was made to Manager, Jammu & Kashmir State Property v Khuda Yar.[44]
With utmost respect and humbleness, it is contended that imposing a tangible limit of time, thus bounding
laches within certain parameters, goes against the spirit of the doctrine itself. ‘Reasonability’ of time is open to
interpretation by the Courts, yet no specific figure can be said to be ‘reasonable’ for several reasons. Firstly, it would
be equal to assigning a set value to something that is variable. In this case, the reasonability would cease to be
adjudged in the backdrop of each and every case respectively. Rather, it would be a victim to a capricious time limit,
hence vitiating an equitable doctrine and making it parallel to statutory limitation. Laches is not a rule of law but
instead concerns a practice of sound and proper exercise of discretion by the Court.
 Secondly, it is not the reasonability of time elapsed alone that constitutes laches. Rather, the second
ingredient relating to balance of equities, i.e. the conduct of the claimant and unconscionability thereof (as discussed
in detail above), also conclusively needs to be present. These are indeed sine qua non in establishing a defence of
laches.
Lastly, as far as the applicability of Article 181 of the Limitation Act 1908 [45] goes, it is crystal clear that no
time limit is provided in Article 199 of the Constitution of the Islamic Republic of Pakistan 1973 for filing a petition
(writ petition) under the same. Admittedly, the petition is not an application within the scope of Article 181 of the
Limitation Act 1908. In this regard, it can be stated that introducing a time limit through legislation would be
questionable when the Constitution itself has not bound the filing of a petition by time. A statute cannot read into the
Constitution, and assume what is not present, and neither can it prohibit or assign constraints to it. What is not
expressly prohibited by the Constitution, and is thus permissible, cannot be done away with through legislation.
Even otherwise, the Constitution, being the supreme law, shall in every manner take precedence over every statute,
including the statute of limitation.
Regarding the observation as to the applicability of the Code of Civil Procedure[46], it is undoubtedly
providing a procedural framework for the said proceedings. That is contradistinctive from the operation of a statute
of limitation wherethrough the entitlement to a remedy or relief may be extinguished by the effluxion of time. Thus,
the question as to the applicability of Article 181 of the Limitation Act 1908 can safely be answered in the negative.
In the case of M.H. Abidi v State Life Insurance Corporation[47], a Division Bench of the Sindh High Court observed
as follows:
“However, where limitation is invokeable he must act within prescribed period. But no period, as may
constitute laches, can be quantified. In the absence of a bar of limitation, the period within which remedy
is to be sought has, however, invariably to be a reasonable one.”
This view of the Sindh High Court was quoted in Masooda Begum’s case[48], thus having received validation by the
Supreme Court. Abdul Khalique Soomro’s case[49] also bolsters the argument by propounding therein that the
provisions of Limitation Act do not apply to the constitutional petition(s) and that each case should be decided with
respect to its own circumstances, without adhering to any fixed period, either long or short. Further, the Supreme
Court, in Dr. Muhammad Tahir-ul-Qadri v Federation of Pakistan & others[50], has expounded that a bar of
limitation is not applicable to the proceedings under Article 199 or 184 of the Constitution. However, such
proceedings may be initiated promptly and within a reasonable time so as to steer free from the question of laches.
In this view of the matter, it is argued that, quantifying time for laches would react against the equitable
doctrine itself, thereby rendering it unreasonably unjust, and its fact-sensitivity toothless.
Conclusion and Further Debate
Even though this equitable doctrine has much use while adjudicating upon a constitutional petition, the practice of
doing so has yet to be brought in consonance with the law laid down by the Supreme Court. In the presence of such
precedents, there is negligible, if not nil, room to manoeuvre; yet continuously it may be observed that a chasm
exists between law laid down on the subject and what goes on in practice. These deficiencies may be attributed to
the jurisprudential infancy of the doctrine of laches in our jurisdiction, and an overall lack of academic debate in this
regard. These shortcomings need to be surmounted along with paving new ways for jurisprudential development,
albeit in the right direction.
For what has been explicated above, it shall only be prolix and superfluous to reiterate the same while
concluding. Rather, to make room for further academic debate, the succeeding questions of law emerging from the
use of the doctrine shall need to be addressed fittingly after the foundations of it are set. Firstly, it must be the
subject of discourse that whether the doctrine of laches does/may apply to all sorts of equitable remedies [51].
Presuming if it does apply, it must be considered whether the time frame for such remedies provided under the
statute of limitation shall take precedence over laches, or a defence of laches may be set up in a claim being within
the period of limitation. Whether such an equitable defence of laches can be put up in response to a claim for legal
relief – such as damages, as opposed to equitable relief alone – may also be brought into question, and if so, an
enquiry as to the parameters and/or standards to be adopted in those cases shall also need to be determined.
The above queries identify critical concerns that may be sought to be resolved in the future by leaving the
same to be dealt with by the conscience of tomorrow; but the guidelines for doing so shall indubitably rest within the
principles of the doctrine itself, and the roots thereof, i.e. equity, justice, and public policy.
 INVESTIGATION IN CRIMINAL CASES
By:
MIAN TARIQ JAVED
Advocate High Court
Assistant Professor Law College
The University of Lahore
The investigation in the criminal cases plays an important role in any state. Criminal investigation is
conducted by using scientific method to collect the evidence. The object is to save innocent person. Now
a days software treated technology like mobile phone, tower. CCTV photage technology and DNA analysis portray
true pictures of the offender. Furthermore food, blood salvia semen, hairs and an expert knowledge help in
determination the guilt of accused. Physical evidence i.e finger print and documentary evidence like notes and
pictures are enough to support the testimonial evidence of the eye-witness. The offender leaves some sign at the
place of occurrence which pave way to reach at the door of the real culprits.
Investigation includes all the proceedings for the collection of evidence conducted by a police officer.
Investigation usually starts on the information relating to the commission of the offence given to the
officer incharge of the police station and duly recorded under Section 154 of the Criminal Procedure Code.
A defect or illegality in investigation however serious has no direct bearing on the competence or the
procedure relating to cognizance or trial. If cognizance is in fact taken, the result of the trial which follows it cannot
be set aside unless the illegality in the investigation can be shown to have brought a miscarriage of justice. Even
then there is an illegality in the arrest of an offender; the trial is not thereby vitiated. As a matter of fact a conviction
or an acquittal does not depend upon the question as to which particular officer actually conducted the investigation
which resulted in the trial. That is to be determined on the basis of evidence that is produced at the trial. A case may
arise in which an investigation may appear to have been conducted under circumstances which may be called
suspicious. This shall be a circumstance which will be taken in to consideration by a Court trying the case but this
by itself will not vitiate a trial.
GUIDELINES FOR POLICE OFFICERS FOR CONDUCTING INVESTIGATION
There are certain parameters set for investigating officers for the purpose of investigation. Acquittal of the
guilty person is as loathsome as the conviction of the innocent person. In either case the confidence of the public in
the administration of the criminal justice is shaken with the result that even honest witnesses are afraid to come
forward to depose a true version of an incident.
Police officers have to remember that there work is judged with a suspicious eye. It has almost become a
rule of prudence to regard that a case investigated by the police must be a tissue of false hood an concoctions. In
order to eradicate this impression their conduct of investigation should have nothing to hide, extenuate or explain
way. An honest, straight forward and efficient investigation can alone enable the prosecution to meet a variety of
criticism which sometimes succeed in securing acquittal of guilty person. A police officer is bound down by records
which he has prepared in his diaries. His record therefore are is only support and refuge.
The police officer must do the followings:--
1. Master the police rules and regulations of the respective province and the relevant section of the code
of criminal procedure mentioned therein.
2. Take the work in hand promptly but non hastily.
3. Note the cause for delay in receiving information relating to the commission of offence.
4. Collect evidence but don’t manufacture it.
5. Be careful about dates and distances of occurrence.
6. Keep in mind the foibles of human nature. Sometimes rumors and gossips run riot before truth gets
its boots on.
7. Keep in view the offence committed and see that there is evidence to satisfy the ingredients of the
offence complained of.
8. Work honestly and fearlessly.
9. Satisfy yourself before you can satisfy judicial tribunal.
The police officer should not run after enemies but should run after truth. A good police officer always
avoid exaggerations which disfigure all evidence. The police officer should avoid the bad habit of writing “witnesses
corroborates” and should not choose witnesses on account of their partiality for the victim or enmity with the
accused.
The object of criminal investigation is to provide answers to certain questions relating to crime. These
include the identity of the victim; the exact place at which the offence occurred, how the crime was committed and
means employed its commission, the time of attack the motive or object of attack and the identity of the offender or
offenders. The criminal investigation is employed also in the search for an interrogation of material witnesses who
are able and willing to give and competent and relevant testimony against the suspect or offender. The
reconstruction of all the facts connected with the crime in order that at the trial of defendant accused a true picture of
what occurred may be portrayed so as to leave no doubt in the mind of jurors or judge regarding the guilt or innocent
of the accused.
 REJECTION OF PLAINT IN LIGHT OF PRECEDENTS OF SUPERIOR COURTS OF
PAKISTAN
MUHAMMAD AJMAL[1] AND DR. DIL MUHAMMAD MALIK[2]
Abstract
This article illustrates rejection of plaint under Order VII Rule 11 of Code of Civil Procedure 1908 as applied and
interpreted by the Superior Courts of Pakistan. The terms ‘cause of action’, ‘accrual of cause of action’ and
‘remedy’ have been elaborated and distinguished. The various general principles e.g. preference of correctness of
plaint, irrelevancy of consideration of defense, stage of rejection of plaint, material for rejection of plaint etc along
with their exceptions determined by the Superior Courts of Pakistan qua subject matter under consideration have
been classified and consolidated. Furthermore, the valuation of the suits for the purpose of court fee and jurisdiction,
the duty of the Court and ministerial staff qua valuation and discretion of the Court to enlarge fixed time coupled
with ancillary different aspects have also been discussed. The most important and invoked ground for rejection of
plaint- ‘barred by law’ has been elaborated with illustrations focusing on connotation of law and distinguishing
between rejection of plaint and dismissal of suit. Thereafter, the consequences of rejection of plaint and remedies
there against have also been brought under consideration. The extremity of this article concludes the whole
discussion.
1. Introduction.
‘Justice delayed is justice denied’ [3] and ‘justice hurried is justice buried’[4] are the principles of immense
significance in administration of justice in Pakistan. These canons are, primae facie, contradictory but harmonious
interpretation of this pair of canons ensures imparting justice on merits. The tool of Order VII Rule 11 of Code of
Civil Procedure 1908 is applied to bury futile and fruitless suits at the inception in Pakistan. Simultaneously, this
device affords every opportunity to adjudicate upon controversies on merits and to save the contesting parties from
agony of frivolous and protracted litigation.[5] However, this tool is, sometimes, either applied unnecessarily or is
not applied when necessary and results in multiplicity of litigation and wastage of precious time of the court. In this
context, the various aspects and questions relevant with captioned topic are elaborated in light of statutory and
precedent law of Pakistan in lines below.
Key Words: cause of action, valuation of suit, rejection of plaint, barred by law, precedent.
02. Relevant Law:
 Order VII, Rule 11 of Code of Civil Procedure, 1908
 Part B, Reception of Plaints and applications, Volume-I, High Court Rules and Orders, LHC.
 Part C, Examination of plaint, Volume-I, High Court Rules and Orders, LHC.
 Suit Valuation Act 1887, S.11
 Court Fee Act 1870
03. Grounds for Rejection of Plaint
The grounds for rejection of plaint has been specified in Order VII Rule 11 of Code of Civil Procedure
1908 e.g. (i) where the suit does not disclose a cause of action, (ii) relief claimed is undervalued and the plaintiff on
being required by the court to correct the valuation within a time to be fixed by the court, fails to do so or the relief
claimed is properly valued but the plaint is written on insufficiently stamped paper and the plaintiff fails to supply
requisite stamp paper within the time to be fixed by the court or (iii) where the suit appears from the statement in the
plaint to be barred by any law. These grounds have been elaborated by the Superior Courts of Pakistan and the
principles have been finally settled. The Order VII, Rule 11 of the Code of Civil Procedure 1908 reads as under:
“The plaint shall be rejected in the following cases:-
a) Where it does not disclose a cause of action:
b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to
correct the valuation within a time to be fixed by the Court, fails to do so:
c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently
stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper
within a time to be fixed by the Court, fails to do so:
d) Where the suit appears from the statement in the plaint to be barred by any law.”
The bare reading of the Rule 11 supra makes it certain that plaint can be rejected only in specified circumstances.
However, this Rule is not exhaustive and there are many circumstances wherein the plaint may be rejected or the
suit may be dismissed. In particular, the ground ‘barred by law’ is of wide connotation and covers express and
implied bars. The word ‘shall’ clearly indicate that rejection of plaint is mandatory and not discretionary when any
of the grounds is present.
04. General Principles
The most controversial and ambiguous aspect of the topic under consideration is acknowledgment of various general
principles and their exceptions by Superior Courts of Pakistan in various precedents. The most applied general rules
and their exceptions are as follows.
 The first general principle is that every averment made in the plaint is to be accepted as correct’.[6] The August
Supreme Court of Pakistan has recently clarified that ‘there can be little doubt that primacy, not necessarily
exclusivity, is to be given to the contents of plaint. The contents of written statement are not be examined and
 put in juxtaposition with the plaint in order to determine whether contents of plaint are correct or incorrect. In
carrying out analysis of the averments contained in plaint, the court is not denuded to its normal judicial power
of scrutiny.[7] Thus, correctness of averments of plaint is general rule subject to exception of judicial scrutiny.
 The second general principle is that ‘the defense taken in the written statement cannot be looked into while
considering rejection of the plaint’ [8] except when legal plea e.g. res-judicata or time barred etc is
advanced.[9] However, in a case, the respondent filed written statement, did not advance pleas of valuation and
maintainability of the suit. The trial Court and appellate court rejected plaint. The High Court ruled that the plea
raised by the respondent was in nature of a defense in the suit and cannot be looked into while considering the
application under Order VII Rule 11 CPC 1908. These pleas are open to be raised by the respondent at the time
of trial of the suit.[10] Thus, generally, the defense cannot be looked into but with exception of legal plea.
 The third general principle is that ‘the fact that the plaintiffs may ultimately fail in establishing the allegations
in the plaint cannot be a ground for rejecting a plaint under Order VII Rule 11 of CPC 1908.[11] There is no
controversy in this regard and there is no exception to this rule.
 The fourth one is that ‘the court should examine plaint for purpose of rejection of plaint at the time of
presentation’’.[12] The August Supreme Court of Pakistan concluded that the rejection of plaint is contemplated
at a stage when the Court has not recorded any evidence in the suit. [13] In another precedent, it was decided that
where evidence had already been recorded and the parties were seriously at issue, the Court should instead of
rejecting the plaint, decide the dispute on merits by referring to evidence of the parties.[14] The plaint cannot be
rejected without deciding the issues already framed. In such case, the proper course for the Court would be to
decide all issues together.[15] However, the plaint can be rejected while dismissing application for temporary
injunction.[16] In suit for specific performance, the Court concluded that the question- whether at the time of
entering into agreement the defendant had title to the property or not is a question of fact and the same cannot
be decided without allowing the parties to lead evidence.[17]Thus, generally, rejection of plaint is preferred at the
inception with exception of before framing of issues.
 The fifth general principle is that only contents of plaint should be looked into for rejection of
plaint.[18] However, exception of this principle is- If there is some other material before the Court apart from the
plaint at that stage which is admitted by the plaintiff, the same can also be looked into and taken into
consideration by the Court.[19] The documents referred in plaint can be looked into.[20] Even, documents of
defendant qua res-judicata can also be looked into for rejection of plaint. [21]
 The sixth general principle is relevant with the suit which is not regulated in toto by Code of Civil Procedure
1908. However, the provisions of Code of Civil Procedure 1908 are applied mutatis mutandis. The Peshawar
High Court declared where provisions of Code of Civil Procedure 1908 mutatis mutandis apply, the plaint can
be rejected as in case of proceedings under Defamation Ordinance 2002. [22]
 The seventh general principle is that plaint can be rejected suo moto without application of defendant.[23] There is
no exception or dispute qua this principle.
 The eighth general principle is- when plaint is vague, no rejection but amendment of plaint is just.[24] Similarly,
when factual investigation is required, there should be no rejection of plaint. [25] However, the exception of this
general principle is- when the rights of rival party are infringed, the plaint should be rejected. For example,
when amendment of plaint changes character and complexion of suit e.g. suit for declaration becomes suit for
specific performance and vice-versa.[26]
05. Cause of action
The first ground for rejection of plaint is ‘non-disclosure of cause of action’. The word ‘action’ means proceedings
in which a legal demand of a right is made.[27] The phrase ‘cause of action’ has been defined by Privy Council as-
‘every fact which if traversed, it should be necessary for the plaintiff to prove in order to support his right to
judgment, and which if not proved gives the defendant a right to judgment. [28] Supreme Court of Pakistan defined
‘cause of action’ as- ‘the ground on the basis of which the plaintiff asks for favorable judgment and not related to
defense or the relief prayed for’.[29] The Lahore High Court defined ‘cause of action’ as ‘the bundle or totality of
essential facts which it is necessary for the plaintiff to prove before he can succeed. There may be different causes of
action from one transaction’.[30]
There is an important question- how to answer whether the cause of action is same or not? The jurists and
the precedents answer this question. There are many tests which answer this aspect. First, if the evidence to support
the two claims is different, then the causes of action are also different. [31] Similarly, the causes of actions in two suits
may be considered the same if they are identical in substance. [32] For example, the petitioner issued cheques in
favour of the respondent. The cheques were dishonored and suit was filed. Subsequently, some agreements were
executed in connection with cheques. The defendant raised objection of cause of action. The High Court declared
that from the contents of the suit, a cause of action was clearly disclosed in favour of the respondent. The effect of
subsequent events and disclosure of certain facts including execution of agreements, the circumstances and the
purpose for which said agreements were executed, will be the subject matter of examination by the learned trial
court in light of the evidence produced before it. The learned trial court after recording evidence of both parties
would also be competent to determine the effect of the said agreements on the suit filed by the respondents. [33] If
cause of action arises out of Pakistan, the suit is not maintainable.[34]
There is distinction between disclosure of cause of action and accrual of cause of action. There may be
disclosure of cause of action without accrual of the same. For example, when certain time is fixed for performance
of agreement, the institution of suit for specific performance is declared premature [35] and suit is dismissed and not
plaint is rejected. The reason is that there is a disclosure of cause of action but not accrual of cause of cause of
action. Similarly, contingent contracts also disclose but not accrue cause of action before happening of
contingency. [36]
06. Under-Valuation of Relief Claimed
The second ground for rejection of plaint is under valuation of relief claimed. This ground has nexus with valuation
of suit for purpose of jurisdiction. This valuation is done under Suit valuation Act 1887. The initial duty of
determination of proper valuation of relief is upon the plaintiff. [37] If valuation of relief determined by the plaintiff is
incorrect, it the duty of the court to determine proper valuation and also allow reasonable time to amend the plaint
accordingly.[38] Furthermore, the person presenting plaint may be questioned by the Court in this regard and his
answer may be recorded on plaint unless consent is given to amend the plaint then and there. [39] The court should
determine the proper valuation of the suit at the early stage. [40] When, the plaintiff fails in correcting the valuation of
the relief, only then, rejection of plaint is permissible. [41]
Only the plaint is to be looked into for determination of valuation of claim. [42] If valuation determined by
the court exceeds the jurisdiction of the court, the plaint should be returned. [43] The cardinal aspect is that valuation
is to be determined of not the whole relief but the claimed relief by the plaintiff. If some part of relief is
relinquished, then omitted relief is exempted from valuation. For example, A files suit for recovery of loan amount
of Rs. 100000/- and interest Rs.25000/- but claims only principal loan amount Rs. 100000/-. In this situation,
valuation is to be based upon principal loan amount and not interest. The provisions of Order VII Rule 11 are
mandatory not discretionary.[44]
07. Insufficient Court fee Stamps
The third ground for rejection of plaint is insufficiency of court fee stamps. The clause © of Rule 11 supra
presupposes correct valuation of relief claimed and is not attracted when court fee is not payable. [45] The reader of
concerned Court has the initial duty to check court fee on the plaint and is responsible for loss. In case of ambiguity,
the reader should refer the matter to the court. [46] However, the court has the ultimate duty to determine proper court
fee payable by the plaintiff and grant reasonable time to make good the deficiency of court fee. The court has
discretionary power to extend time granted for making payment of court fee unless there is contumacy; gross
negligence and malafide under sections 148 and 149 Code of Civil Procedure 1908. [47] The time may also be
extended under section 151 of Code of Civil Procedure 1908.[48] When, the deficiency is removed, the plaint is
deemed instituted from date of presentation.[49] The issue may also be framed for determination of proper valuation
of court fee.[50]
08. Barred by Law
The fourth ground for rejection of plaint is ‘barred by law’ The ‘law’ means written law or statute law and is used in
generic sense.[51] Law means – a formal pronouncement of the will of a competent law giver. [52] Law includes-
constitution, statutes, judicial principles, rules, by-laws etc.[53] The illustrations when the suit is barred by law are- (i)
Time barred suit is dismissed under section 3 of Limitation Act 1908 and plaint is not rejected under Order VII Rule
11 of C.P.C.[54] The law of limitation prevalent at the time of institution of suit applies and not when cause of action
arose.[55] (ii) The relief relinquished in respect of one cause of action is barred under Order II Rule 2 of C.P.C 1908.
(iii) The suit hit by multifariousness is barred under Section 11, Explanation IV of C.P.C 1908. (iv) The suit
regarding execution, discharge and satisfaction of decree is barred under section 47 of CPC 1908. (v) The suit hit by
principle of res-judicata is barred under section 11 of C.P.C 1908. (vi) The suit regarding public nuisance without
consent of advocate general is barred under section 92 of C.P.C 1908. (vii) The suit for setting aside decree is barred
under section 12(2) of C.P.C 1908. (viii) The suit hit by doctrine of estopple is barred under article 114 of Qanun-e-
Shadat Order 1984. (ix) The suit for pre-emption by person who is not pre-emptor under section 6 of Punjab Pre-
emption Act 1991. (x) When suit withdrawn without permission, fresh suit barred on same cause of action under
Order XXIII Rule 3. (xi) The suit for permanent injunction restraining public functionaries from official functions is
barred under section 56 (d) of Specific Relief Act 1877. (xii) Suit for declaration on the basis of agreement to sell is
barred under section 42 of Specific Relief Act 1877. (xiii) The suits for specific performance of the nature which
cannot be specifically enforced under section 21 of Specific Relief Act 1877. (xiv) Inter pleader suit which does not
fulfill conditions under section 88 and Order XXXV of C.P.C 1908.
09. Rejection of Plaint and Dismissal of Suit
The Lahore High Court discussed distinction between rejection of plaint and dismissal of suit in the words that "the
rejection of plaint" meant that if ingredients in Order VII, Rule.11 C.P.C. 1908 were available in plaint, the Court
had jurisdiction and powers to reject the plaint. Dismissal of suit connoted that it was a final determination of
controversy between parties meaning thereby the Trial Court could dismiss the suit only after holding inquiry and
recording of evidence.[56] Rejection of plaint provided or opened door for plaintiff for filing fresh suit but in case of
dismissal of suit, no fresh suit could be filed and only statutory remedy was available against dismissal order. The
defendants filed application under Section 151 of C.P.C. by placing on record all facts finally settled between parties
and plaintiffs admitted all such facts. Hence, no question for further determination of any issue had arisen and the
Court was within its rights to reject the plaint under O. VII, R.11, .C.P.C. Dismissal of suit for invoking doctrine of
res judicata was not correct interpretation of law.[57] Rejection of plaint is proper order not dismissal of suit. [58]
10. Rejection of Plaint and Return of Plaint
There is delicate simple difference between rejection of plaint and return of plaint. Return of plaint is concerned
with competency of the Court whereas rejection of plaint is concerned with competency of the suit. When, the court
comes to conclusion at any stage that it has no jurisdiction, the plaint is to be returned under Order VII Rule 10 and
not rejected under Order VII Rule 11 of Code of Civil Procedure 1908. The orders ‘corum non judice’ are nullity in
eyes of law.[59] The Court having jurisdiction can pass an order under Order VII Rule 11 of C.P.C 1908.
11. Consequences
The consequences of rejection of plaint are both ultimate and temporary. The ‘rejection of plaint is not res-judicata
against a plaintiff and defendant’[60] except when rejection of plaint amounts to final adjudication e.g. res-judicata or
time barred suit. [61] The rejection of plaint is decree as defined in section 2(2) and is appealable under Order 41 Rule
23 of Code of Civil Procedure 1908. However, when plaint is not rejected, the order of rejection can be questioned
in revision. The fresh suit may be instituted if not barred by law. [62]
12. Conclusions and Recommendations
The Order VII Rule 11 of Code of Civil Procedure 1908 is not exhaustive in nature as there are many other grounds
which may justify rejection of plaint. The Order VII Rule 11 C.P.C, 1908 is mandatory not directory in nature
having penal consequences. The general rule that- only averments of plaint are relevant for rejection of plaint’ has
two exceptions- (i) the documents admitted by plaintiff annexed with plaint can be looked into and (ii) in
exceptional circumstances e.g. res-judicata or time barred suit , documents of defendant too. Similarly, the
averments of plaint are presumed correct but subject to judicial scrutiny by the court. Generally, the plaint can be
rejected at any stage but preferably at initial stage before issuance of summons and seldom at later stage. When
issues have been framed, the suit should be decided on merits. The disclosure of cause of action and accrual of cause
of action are distinct aspects. The rejection of plaint is relevant with former not later aspect. The plaint is not to be
rejected when amendment of plaint is permissible under the law. The reason able time must be granted to determine
proper valuation of relief or make good deficiency of court fee and grant of time by the court is mandatory. The
further enlargement of time fixed by court is permitted except when there is contumacy, malafide and gross
negligence of plaintiff. The rejection of plaint and dismissal of suit or two distinct aspects. Rejection of plaint not
dismissal of suit is proper order on grounds detailed in Order VII Rule 11 C.P.C 1908. The law of limitation
prevalent at the time of institution of suit applies and not when cause of action arose. The plaint can be rejected suo
moto without application by defendants. The order of rejection of plaint is appealable whereas order of refusal to
reject plaint is revisable.

LODGING OF F.I.R (THE GOSPEL TRUTH)

By:
SYED ARSLAN HUSSAIN BUKHARI
Advocate (LLM )
“The Gospel Truth “A completely true statement, the absolute and naked truth. The doctrine of Gospel truth
has its own wisdom in itself, simultaneously the version of F.I.R is not the Gospel truth,asserted by our honorable
superior courts in their leading judgments.
Section 154 OF CODE OF CRIMINAL PROCEDURE, 1898deals with the law, which laid down for the
lodging of F.I.R i.e First information report about cognizable offence, which authorizes a police officer to arrest the
offenders of accused who committed any cognizable offence, without the prior permission i.e Warrant from
concerned Magistrate. Section 154 OF CODE OF CRIMINAL PROCEDURE is reproduced here in below:-
SECTION 154
Every information relating to the commission of cognizable offence if given orally to an officer-in-charge
of a police-station, shall be reduced to in writing by him or under his direction, and be read over to the informant ;
and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the
person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the [
provincial Government ] may prescribe in this behalf.
Section 154 of Code of criminal procedure 1898 telling us the lodging procedure of F.I.R and divides this
procedure in five portions, which herein below;
1. Every information of commission of a Cognizable Offence,
2. If given to an officer-in-charge of a police station, shall be reduced to writing by him or under his direction,
3. And be read over to the informant,
4. And every such information in writing, shall be signed by person giving it,
5. And substance thereof shall be entered in a book to be kept by him such Officer in such a form as Provincial
Government may prescribe in this behalf.
Now the practical approach and the lodging procedure of F.I.R., laid down in the section 154 Code of
Criminal Procedure 1898, having contrast, which may have fatal effects on the trial. Filing of Complaint in Police
Station, after Commission of any Cognizable offence, a Complaint number is issued to person giving the Complaint,
and the Complaint refers to any Police officer i.e ASI, for the Prior inquiry, for to ascertain or check the credibility
of Commission of offence, and given complaint, before the lodging of First Information Report. After the
completion of prior investigation of concerned police officer, seeks the approval of Station house officer for the
registration of First Information Report.
My reliance on (PCr.LJ 2013 Sindh 749 ), according to the law, which set down by the superior judiciary in
this citation and the law laid down in section154 Code Of Criminal Procedure 1898, that the station house officer is
duty bound to start investigation after the lodging of F.I.R and before recording of F.I.R, S.H.O. was not supposed to
hold an inquiry as to correctness of F.I.R. law gives authority to initiate proceedings against the persons, under
section 182 Code of criminal procedure 1898, who gave the false First Information Report, but it is not warranted by
law to incite prior inquiry before registration of F.I.R.
According to ( 2015 YLR 248 ) the basic purpose of lodging of F.I.R, is to set criminal law in motion, and it
is not necessary to tell each and everything in F.I.R. but the accused person gets relief easily from the omissions and
incomplete information given in F.I.R. First information report may have fatal effects on the trial of accused.
 The nutshell of what I have narrated above is that the police officers must follow the law laid down, and the
philosophy behind the enactment of section 154 Code of Criminal Procedure 1898, as the same is a very important
piece of legislation, having far reaching effects in the conduct of trial. I further assertively maintain that the conflict
between the law laid down in section 154 Code of criminal procedure 1898, and practical approach of lodging of
F.I.R should be come to an end.
-------------------------
THE CONSTITUTION OF PAKISTAN - A CRITICAL ANALYSIS
By:
MISS KANWAL SANA WARRAICH
Advocate High Court
Sohal Law Chamber, 9-Fane Road, Lahore
The creation of Pakistan in August 1947 was a solitary event in the latest history of the world. This is
because Pakistan consisted of two separate localities having different geographies i.e. East and West Wings. The
Western Wing had no solidarity of language and culture, however, the Eastern Wing was culturally and politically
one unit comprising of the majority population of the country. In such a country where diversity was a norm,
framing of constitution had to be an uphill and tedious task. It was extremely important to design a constitution
which would satisfy the majority, in both the Wings of the country and disgruntlement at all strata should be
minimal. The crises deepened nevertheless!
The Constitution is a pragmatic machinery of the Government and it is also a philosophy for political
processes. Simultaneously, the Constitution of any country symbolizes the ambitions and objectives of the whole
nation, whose representation powers are distributed between the Federal Government which stands for the entire
country and the federating units too, i.e. the provinces. The initial nine years were spent to develop an approved
formula and the result was the 1956 constitution. It was organized on the basis of affiliated provinces and princely
states of West Pakistan into one unit and equality with West Pakistan at the centre. The efforts of Constitution
making had to bear a blow after the imposition of Martial law on the country. The Chief Martial Law Administrator
gave Pakistan its second written Constitution on the pattern of the Objectives Resolution, however, it was to the
liking of the CMLA being of Presidential form.
After the partition of Pakistan, post 1971 war, there had to be a new Constitution that suited to the needs of
the remaining Wing left. This turned out to be a Parliamentary form of Constitution. A parliamentary system
establishes a high degree of social and political awareness, universal education, and an advanced system of mass
communication for speedy and accurate dissemination of information on a wide variety of themes of individual and
general interests. In the absence of these pre-requisites, people cannot be expected to exercise their right of vote in
the context of broad national policies. Educated people with enlightened approaches are the first condition for the
success of Parliamentary system. An opposition of the same caliber must be there to watch the administration as
well as to provide alternative government. There should be a vigilant press for the support of both the Government
and the people, on the merits of issues and to expose the weakness of the system wherever desirable and needed.
However, Pakistan lacked the prerequisites for a successful parliament. We had a limited parliamentary
experience. A strong executive authority persistently influenced the parliamentary system The government and the
Governor General always held special powers. In a parliamentary set-up, the Legislature has to sustain and control
the executive but Parliament in Pakistan was less allowed to function freely. Cabinets, were frequently installed and
removed with no regard to the Legislature.
The only way out to any constitutional crises is to negotiate and bring all disgruntled agents to the table.
The Constitution of any country is the custodian of its peoples' rights. It ensures that the people are protected and
respected and the law is upheld at all costs. It should increase the spirit of nationalism in the masses
and fraternize its people. It should be respected and improved to remove all flaws in the legislation and in the better
interest of the nation whenever needed.
DYING DECLARATION AND ITS EVIDENTIARY VALUE
By:
ABDUL HAMID NAYAK
Advocate
Introduction:
Dying declaration is a statement made by a dying person as to the cause of his death or regarding
circumstances of the transaction, which resulted in his death. This is a declaration which is made in extremity, when
the party has no hope of life and every motive of falsity silenced with the persuasion of mind to speak the
truth.[1] The law relating to dying declaration is embodied in Article 46 of the Qanun-e-Shahadat Order 1984, is an
exception to the rule that hearsay evidence is no evidence. General presumption is that dying persons usually speak
truth and also ancient principle is “no one on point of death should be presumed to be lying.”[2]
Definition and General Principle regarding Dying Declaration:
Dying declaration is a statement by a person who believes that death is imminent, relating to the cause and
circumstances of the person’s impeding death.[3] The general principle regarding the evidentiary value of dying
declaration is that once the dying declaration is believed it needs not legally to be further supported by independent
corroboration and it can form the sole basis of conviction. On the other hand if Court has come to conclusion that it
is not reliable by itself and if there is anything in the other evidence or in the surrounding circumstances to raise
suspicion as to its credibility, then necessity for corroboration arises.
Conditions Necessary for the Reception of Dying Declarations:
(i) Before a statement is admitted as a dying declaration it must be proved that the person who made it
is dead.
 (ii) A dying declaration must be that of a person competent to testify as a witness under Article-3 of the
Order. There the dying declaration of lunatic or of a child of tender years is not admissible.
(iii) The statement becomes admissible under the clause only when cause of declarant’s own death
comes into question.
(iv) The statement must relate to the cause of maker’s death or circumstances which resulted in his death.
(v) The dying declaration must be complete and if it is cut short with some ambiguity about the words
what the deceased wished to say, it will be inadmissible, [4] for no one can tell what he might have
added.
(vi) It may be oral or in writing.[5] It may be in question answer form and sometimes where it is not in
questions answer form it may be discarded.[6]
(vii) If dying declaration is recorded in the hospital, a certificate must be obtained from the doctors to the
effect that the deceased was in a fit condition to make a statement. [7]
Rules to Record Dying Declaration:
(i) Attempt to be made that a Magistrate would record the dying declarations.
(ii) If possible, the person be examined by the Medical Officer[8] before recording such declaration.
(iii) If at the spot, Magistrate or Senior Police Officer is not present the statement should be recorded in
the presence of two or more reliable witnesses unconnected with the case.
Evidentiary Value of Dying Declaration:
There is an important question often raised with respect to dying declarations in general that are such
statements a weaker type of evidence? In some aspects dying declaration is a weak type of evidence [9] and it is
statement, not subjected to the test of cross examination, as such utmost care is to be taken in recording conviction
on the basis of such statement.[10] A dying declaration may become a sole evidence for conviction, as it is relevant
statement but it is better to corroborate,[11] however corroboration is not compulsory situation if the dying
declaration is duly proved[12] and court is satisfied about its genuineness[13] and truthfulness.
The dying declaration contained in F.I.R (First Information Report) is regarded as a substantive piece of
evidence.[14] A declarant may make more than one statement as to his cause of his death which may subsequently be
treated as dying declarations.[15] In such situation, the courts have to ascertain the uniformity among them.
Conclusion:
The law of evidence applicable in Pakistan states that a dying declaration is a relevant piece of evidence. It
must be kept in mind that whenever dying declaration is brought before the court, the court has to be very careful
while relying upon it. A truthful and genuine dying declaration is sufficient to sustain a conviction without any
independent corroboration. In case court finds it untrue or unreliable, it is always at liberty to reject it or discard any
portion of it. Each and every dying declaration is liable to be scrutinized in its attending circumstances as well as on
the basis of integrity of its maker. Therefore, any observation made in any judicial pronouncement purporting to lay
down general rule as to evidentiary value of dying declaration should not be followed in another judicial proceeding
without thoroughly considering the material circumstances of the both.

EXPEDITIOUS JUSTICE & BACKLOG OF CASES

By:
KAMRAN AHMAD
Advocate High Court
MUHAMMAD WAQAS
Advocate High Court
Abstract
In present era, the most daunting challenge in the way of expeditious justice is the backlog of cases. The
unnecessary delay in cases, on one hand, abandons public’s trust on judiciary and weakens the country socio-
economically on the other. The causes for delay in cases are manifold: from fewer judges to non-observance of
National Judicial Policy (NJP) and from frivolous litigation to frequent adjournments. The worrisome aspect of this
log jam is that it still has not become the top priority of policy makers. This paper encompasses certain
recommendations to settle the backlog.
Introduction
“Are the courts functioning?” when told that the judges are dispensing justice as normal, he replied, “thank
God, if the courts are working, nothing can go wrong”. Words uttered by the British Prime Minister Winston
Churchill, when briefed on the economic collapse in WWII. Pakistan is in dire straits. Diplomatically, our time-
tested friends are inclining towards India; economically, our exports are on the low and politically, we are in a state
of turmoil. So, in this socio-economic collapse, question remains the same, “Are the courts functioning?” With 1.94
million pending cases, the answer is a big no. Albeit our constitution grants right of expeditious justice to her every
citizen under article 37(d), but the gigantic backlog of cases tarnishes this right and with the current approach, this
logjam is likely to unsettle.
Furthermore; Pakistan, with a population of 195.4 million, has a flourishing society which has multiplicity
of needs followed by conflict of interests. This means that there will be more litigation. For instance, during 1st to
30th November 2016, the number of cases instituted in the Supreme Court of Pakistan is 1,180 and the rate of
disposal in the said period is 1,096. This means that the apex court is providing justice timely. Thus, the worrisome
factor is the backlog of cases. In addition to this, some of the other dark aspects of backlog are; with life-long time
span of cases, people often recourse to corruption and other extra-judicial measures, criminals stop fearing of
punishments causing unrest in society, foreign investors reluctant to invest because of the expected delay in justice
and above all, with all these grave happenings, democracy stumbles.
In order to cope with the mounting delay in cases, policy makers give certain timelines encompasses in
National Judicial Policy (NJP) to decide cases. But, the mere timelines could not administer the logjam without
research bases initiatives and out of the box measures. This paper encompasses measures to deal with this logjam.
A statistical glance at the backlog of cases
An old aphorism is ‘justice delayed is justice denied’ and justice has to cope with 1,944,928 cases. As the
statistics provided by the Law & Justice Commission of Pakistan, on 30th November, 2016 the number of pending
cases in Supreme Court is 30,901 and in Federal Shariat Court is 649. Similarly, Lahore High Court has a bulk of
cases pending i.e. 154,604; Sindh High Court 84,375; Peshawar High Court 30,919; Balochistan High Court 6,151
and Islamabad High Court 13,358 respectively. In the same way, Punjab’s District Judiciary leads the bulk of 65.5
per cent of pending cases i.e. 1,273,939; Sindh’s District Judiciary 118,814 and KPK’s District Judiciary 187,043.
But the alarming fact is that the 906 sq km Islamabad’s District Judiciary with 31,018 pending cases almost has two
and a half times more burden than the 347,190 sq km Balochistan’s District Judiciary i.e. 13,156.
NJP timelines and mounting delay in cases
National Judicial Policy revised edition of 2012 in its ‘Expeditious disposal of cases’ under clause 15 of
civil cases deals with backlog of cases as:
“To the clear backlog under different categories, special benches should be constituted for each category on
the Provincial seat and Branch Registries of the Supreme Court and High Court. There should be a
commitment of judges to decide the old civil/criminal cases as early as possible.”
Some of the timelines enumerated in the National Judicial Policy revised edition of 2012 are:
• Bail applications u/s 497 CrPC shall be decided not beyond a period of three days by Magistrate, 5
days by Court of Sessions and 7 days by High Court. Similarly, a challan shall be submitted in a
time period of 14 days.
• All criminal cases punishable with imprisonment from 7 years and above including death sentence
shall be decided within a period of 1 year.
• Family cases should be decided within 3-6 moths.
• Rent cases should be decided speedily within a period of 4 months.
A mere stipulation of time and a commitment to decide old cases on a fast track cannot cope with the Himalaya of
1.94 million pending cases. It needs more of a research based framework.
Recommendations to cope with backlog
The government and apex judiciary is making measures to deal with pendency of cases, albeit rather
slowly. Furthermore, these measures are only on the paper and are not complied with zest. Keeping in view the
current working of the courts, below are some practical recommendations to cope with the mammoth backlog of
cases:
1. Increase in Judges
Judges are the foot soldiers of justice. Given the current workload of daily cases on judges, these foot
soldiers are far less than the required number. For instance, in winter season, the courts timing is
9am to 4pm with a break of one hour. This means that a judge has 6 hours i.e. 360 minutes to deal
with daily cause list. If he gives 10 minutes to every case, he can be able to deal with 36 cases a day
with a cause list of more than 100 cases. Need of the hour is to enlarge the pool of judges in order to
get early disposal of cases.
2. Appointment procedures & career opportunities for civil judges
A simple increase in number of judges would not be a veritable solution to this log jam. The bulk of
pending cases is at civil courts. So, it is imperative to appoint incomparable persons at this level,
who certainly are best of the lot. To achieve this, it is of vital importance to have competent
induction procedures. Judicial Service Commission approved by the Lahore High Court is good step
in this regard. Judges inducted by such procedure should be provided with better opportunities. For
instance, most of the civil judges retire as an additional session judge. Meaning there by, civil judge
should be provided with more elevation opportunities. Furthermore, the induction of judges should
be made at only two levels i.e. civil judge and additional district & session judge.
3. Setting up Evening Courts
A deliberate solution to high pendency of cases is to set up ‘evening courts’. Given the current
physical infrastructure, evening courts can be set up in same buildings and will accommodate the
increased number of judges. Moreover, these courts will help to diminish the backlog on one hand
and provides opportunities for young lawyers on the other.
4. Procedural amelioration in cases
In a case, delays caused mostly due to non-prosecution, or by furnishing miscellaneous applications
or in evidence stage. Such delays can be deal with ameliorating case procedures. For instance:
• Set up a date for oral evidence of all witnesses and cross-examination on the same date
• No more than three chances be given to either side for recording evidence
 • Cases dismissed due to non-prosecution should not be restored and if so restored, it shall be
subject to heavy fine
• Miscellaneous applications would be disposed off in 7 days
5. Curb lawyers’ strikes & frequent adjournments
A serious impediment in way of expeditious justice is the needless strikes of lawyers. When lawyers
are on strike, the whole judicial cycle remains stagnant. A policy should be to restrain these strikes.
In this regard, Pakistan Bar Council and provincial bar councils can be taken on board to enumerate
such policy. Similarly, frequent adjournments given by judges also hamper in dispensing justice.
Courts need to put a restrain on it.
6. Strengthening E-courts
Last year Pakistan established its first e-court. In this technological age, establishment of e-court is
the step in right direction. The vision behind this is to enable courts to make justice affordable and
cost-effective. Online plaint, written statement, recording evidence of witnesses will provide justice
in a prompt manner. Need of the hour is to strengthen these courts in every district and tehsil level.
Furthermore, in these turbulent conditions, trials of hardened criminals/terrorists can be made
through e-courts safely. Similarly, witness’ protection is easy through these courts. In this manner,
e-courts will productive in mitigating the backlog.
7. Revisiting Pakistan Penal, Criminal Procedure and Civil Procedure Codes
With this backlog, it has become inevitable to revisit the procedural laws of the land. Procedural
amelioration has been discussed earlier. Laws need to be enacted in a manner that it will help to
dispose of cases on a fast track. For instance, it has become a routine matter to fine the accused
(which are mostly minors) arrested on kite flying charges of about two-three thousand rupees and
released on bail. The irony is that the case file remained on table for months. Consequently, it kept
on engaging the police, the prosecution and ultimately the courts. Therefore, laws need to be
revisited so that the courts can dispose of such minor cases, either of criminal or civil nature, in
days. Along these lines, this mammoth backlog can be curtailed.
Conclusion
Almost two million cases are pending before courts and they get procrastinated again and again. Despite of
this fact, if there’s any scuffle, people use to say ‘I will see you in court’. With this huge backlog, a burning question
is that why people say this? It is because they believe in justice. They trust that if government won’t hear them, if
bureaucracy won’t give ear to them, if police won’t lend an ear to them; court will. Not only hear them but also
provide justice. We need not to break this trust. In doing so and for the purposes of expeditious justice, this
mountainous backlog of cases has to be dealt with efficacy.
References:
• http://www.thefridaytimes.com/tft/are-the-courts-working
• Economic Survey of Pakistan 2015-16
•http://ljcp.gov.pk/nljcp/viewpdf/pdfView/bmV3c19wZGYvM2NlNDktZm9ydGhuaWdobHktc3RhdGVtZW50LW
5vdmVtYmVyLWZpbmFsLTIwMTYtLnBkZg==#book/
• http://www.supremecourt.gov.pk/web/user_files/File/NJP2009.pdf
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RECORDING STATEMENTS OF MAGISTRATES THROUGH MODERN

DEVICES/MEDIUM: WHETHER A MOVE TOWARDS ESTABLISHING E-
COURTS?
By:
ZEESHAN MANZOOR[1]
Assistant Sessions Judge
Karachi West
1. Introduction. In recent days, there floated on whatsapp a letter from The Member Inspection
Team, Hon’ble Lahore High Court as on behalf of the Hon’ble Chief Justice of the Court written to the
Judges of District and Special Courts of Punjab directing all the courts in Punjab “to record statements of
Magistrates (posted at other stations) through modern devices/mediums, i.e. video link
through skype, imo etc, to save public time and exchequer unless the circumstances require otherwise.” The
said letter addressed the issue in wake of summoning of Magistrates by the courts to appear as witness to
testify various executive nature like duties performed by them, such as identification parade, inquest
proceedings, exhumation proceedings, raid proceedings, recording of statements u/s 164 Cr.P.C. etc., in trial
of the concerned cases. A concern was shown for the situations when the concerned Magistrates stand
transferred to some other station and they have to avail station leave for the said purpose; for which public
time and exchequer suffer. The decision of the Hon’ble Lahore High Court not only deserves higher degree
of applause and warm welcome but also, it invites the following by other provinces. With no hesitation in my
mind, I have derived the topic of this article as out of the subject of the said letter.
2. It would not be desirable to extensively discuss the executive nature of proceedings or duties referred above as
such is certainly beyond the scope of paper in hand yet I would give these a slight touch for purpose of
reference. With this whole in mind, I want to focus on the concept and feasibility of Electronic courts in
Pakistan while taking lead of the concept from the directions (supra) for use of modern devices for recording
of evidence of the Magistrates and its legal implications. This is the avowed purpose of the paper in hand.
3. Magistrates seek sanction for recording confession; admission of guilt made by a person charged with an
offence; and statements of witnesses during course of investigation and prior to commencement of trial
(before the charge has been framed and trial is thereby begun) or inquiry by the Court, from provisions laid
down under section 164, Code of Criminal Procedure, 1898, Cr.P.C. hereinafter and before mentioned). This
appears in wake of mistrust over police, confession before whom loses sanctity in terms of Articles 38 and 39
of the Qanun e Shahadat Order, 1984. Besides, Rules 25.27 to 25.29 of Police Rules, 1934 deal with
confessions and statements recorded under section 164, Cr.P.C. Procedure for this is contained in the sections
164 read with 364, Cr.P.C. Non compliance of the provisions of these sections bring the case within ambit of
section 533, Cr.P.C. creating doubt as to whether the statements were correctly recorded and in accordance
with law. It is here only, where the Magistrates are called upon to give evidence to the effect that such
statement was recorded. Notably, Article 91 of the Qanun e Shahadat, 1984 provides that when
any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of
any part of the evidence, given by a witness in a judicial proceeding or to be a statement or confession by any
prisoner or accused person, taken in accordance with law, and purporting to be signed by any Magistrate, the
Court shall presume that the document is genuine; that any statement as to the circumstances under which it
was taken, purporting to be made by the person signing it are true and that such evidence, statement or
confession was duly taken. The combined effect of sections 164 and 533 Cr.P.C. and Article 91 of
the Qanun e Shahadat, 1984 is that when a certificate issued under section 164 Cr.P.C. clearly shows that the
provisions of section 164 Cr.P.C. have duly been complied with, it is not necessary to call the Magistrate
who recorded confession as a witness for the purpose of proving it, and the confession should be taken on
record.[2] But no presumption can arise under Article 91 of the Qanun e Shahadat, 1984, if the document is
not signed by the Judge or the Magistrate.
4. Likewise, Magistrates also supervise identification parades of persons as well as properties: the difference
being that in the case of the former, the identification is of one stranger by another and in the case of the
latter, it is invariably by the owner or by those who had been familiar with those prior to the crime, such as
stolen property. Identification of accused person is conducted in cases where a witness gets a momentary
glimpse of the accused and he claims that he would be able to identify the accused. The objective is to satisfy
that the investigating authorities, before sending the case for trial to Court, that the person arrested but not
previously known to the witness is one of those who committed the crime, and, to satisfy the Court that the
accused is the real offender and is genuinely connected with the crime, alleged. There is no requirement of
law to conduct identification parades and its evidentiary value is subject to corroboration of other evidence.
There is no express provision for the conducting of identification parades; however, inference for its sanction
is drawn from the reading of Article 22, Qanun e Shahadat, 1984. Technically speaking, any person can
conduct test of identification parade but Magistrates are preferred to supervise the proceedings. Chapter V-C
of Federal Capital and Sindh Criminal Courts Circulars deal with the issue. Rules 26.7, 26.32, 26.34, and
27.25 are the relevant provisions of Police Rules, 1934.
5. Magistrates also conduct raids under directions from Sessions Judges vide section 491 Cr.P.C. Such raids may
be for various purposes, such as illegal / unlawful detentions of innocent persons who fall prey to police
excesses. Magistrates are also assigned to conduct raids on business offices or government offices in terms of
anti-corruption or such like activities. But, practically speaking, Magistrates are hardly called upon for
evidence in such like matters yet it is observed that in cases of severity, they are summoned.
6. Then we have autopsy/post mortem and inquest/exhumation proceedings for the Magistrates to supervise. This
is very serious piece of business and an important segment of forensic investigations. In cases where officer
in charge of a police station or some other police officer specially empowered in this behalf by the Provincial
Government receives an information that a person has committed suicide or has been killed or has died under
circumstances raising a reasonable suspicion that some other person has committed an offence, he shall be
required to immediately report to the Magistrate concerned placing request for holding inquest. Sections 174,
175 and 176 of Cr.P.C. and Rules 25.37, 25.34, 25.39 and 25.47 of Police Rules, 1934 are the relevant
provisions.
7. The argument adopted by the concerned authorities in the letter referred above was that by taking into account
the use of information technology, the public time and exchequer can be saved. I find myself in complete
agreement with the argument as Magistrates have to preside their own courts (naturally) even on the dates,
they are summoned and as a result, they leave their courts and travel for other stations for giving evidence
leaving behind the litigants of their courts suffer and so also letting the cases adjourned. Not to forget, it is
seldom that Magistrates evidence is recorded on the first very date they are summoned – naturally because of
uncontrolled situations. We can’t ignore the natural events when, for instance, parties to the case or their
counsels are absent for whatsoever reason; or, when all are present except the accused themselves who could
not be produced by Police or Jail authorities as witnesses cannot testify in absence of accused as per
provisions laid down under Cr.P.C.; or, if the Presiding Judge happens to go on leave or is unavailable for
whatever reasons; or, of course, when we are blessed with calls for suspension of work for various genuine
reasons from respectable Bars on the said date. This whole creates discomfort to the Magistrates as well as to
the litigants of his own court; while adding that in high profile cases, there are concerns of threats for
Magistrates, Police, litigants or even Judges as well.
8. While welcoming the decision, I would humbly move ahead towards concept of Electronic Courts (E-Courts).
An E-court is a location in which legal matters are decided provided a Judge is present and has all well-
developed technical infra structure allowing court proceedings to function smoothly while creating room for
 presentation of evidence and filing of judicial records or hearing testimony remotely. It essentially is a
paperless court where all proceedings take place in a digital format.
9. I had opportunity to visit the city of Riyadh, Kingdom of Saudi Arabia (KSA) in December, 2015 on account
of training programme of Judges. There, we were led for visit to the various courts of all stages of the KSA
and we had been briefed about working there. As I recall, the greatest pride that they had persistently been
expressing was that their courts had been digitalized and this fact was reiterated at all forums during
briefings. Naturally, it has positive output.
10. India began with the concept on the basis of the ‘National Policy and Action Plan for implementation of
information and Communicating Technology (ICT) in the Indian Judiciary-2005’ as submitted by E-
Committee (Supreme Court of India) aiming at transformation of the Indian Judiciary by ICT. Since then,
they have been working over it while improving each passing year.
11. The idea is not totally new for this country even. During the proceedings of Memogate Commission in 2012,
statements of Mansoor Ijaz and Hussain Haqani were recorded through video link. In 2013,
the Hon’ble Supreme Court of Pakistan while hearing a rape case directed that where possible, technology
could be used to save from delayed justice. In 2016, an accountability court in Islamabad was converted into
a full-fledged E-Court aiming at securing trials of hardened criminals, ensuring the protection of witnesses
and expedited disposals. The performance was amazing. The Dawn reported that in just one month, the
accountability Court disposed of a Modaraba case in just twenty days while recording testimonies of twenty
three witnesses via skype.[3] These all went success stories. By this, I actually intend to argue as to why the
recording of evidence should not be extended to usual proceedings and after all, why it should be restrained
to recording of statements of Magistrates alone.
12. Judiciary of the Province of Sindh claims to have best Case Flow Management System (CFMS) and as
judicial officers serving the province, we have really experienced its efficacy. The system however is court
working focused. The system gives online case diaries, output and end result of cases and judgments or
orders the Judges pass. Such judgments and orders could be received through email by the lawyers who
contest the same if they provide their email addresses to the Information Technology (IT) branch of
the Hon’ble High Court of Sindh. Urgent correspondence between the Hon’ble High Court and the District
Judiciary is usually made through technology by use of emails etc. This has made the procedure so easy and
feasible that I wonder how fruitful it could be if the scope is extended to the use of technology for trials as
well – after all why only case management, why not trial management as well? For instance, if the pleadings
are submitted / filed in electronic form, would it not be easy to keep the record more accurate and to make
proper use of such record while deciding the cases with least physical labour.
13. Naturally, every innovation has both merits and demerits. For positive reasons, we may foresee that it is cost
effective – production of accused by jail authorities or the witnesses coming from various quarters become
too costly; entire information pertaining to a particular case would be available online and hence, easily
accessible while with least possibility of the loss of any data; learned lawyers could be able to file their cases
from offices or even homes saving themselves from all physical difficulties; Judges would be in position to
better manage their case load; it would be a procedure saving from needless adjournments; and, finally, a
secure provision for witnesses – needless to say, the ever rising ratio of acquittals and lesser convictions in
the cases of prosecution has been result more often of fear among witnesses as courts can act only upon
evidence and material placed before them and the Hon’ble Supreme Court of Pakistan in Watan Party and
other versus the Federation of Pakistan vide PLD 2011 Supreme Court 997 categorically stated that Courts
cannot be blamed if the executive/police fail in their duty and that legislature is to provide for processes for
protection of witnesses.
14. One may argue that the concept has demerits. It apparently seems a costly program for which huge funds
would be required and that there is lack of technical expertise available with Courts and so also there is a
chance of hacking. Quite technically, it may also be argued that Courts might find it difficult to control the
discourse during recording of evidence of the witnesses and further, that it could be difficult for Judges to
determine demeanor of the witnesses which is an important piece of evidentiary process as to see whether the
witness is free from coercion or duress. There is no disagreement with regard to this sort of criticism yet I am
of firm view that the world of internet has travelled across and improved so fast that it won’t be a major issue
to judge the demeanor of a witness while recording his evidence through technology. There are
soft wares available through which skype video calls may be saved and could be reduced to compact discs
(CDs) which may later be attached with the files and sent to the Appellate Courts if desired.
15. From pure legal point of view, in appropriate cases, the Court may allow to be produced any evidence that
may have become available because of modern devices or techniques, under mandate of Article
164, Qanun e Shahadat, 1984. And under Electronic Transaction Ordinance, 2002, electronic evidence via
emails is made admissible in Courts of law.
16. It would be profitable to view the concept from far reaching effects and the technology may be sometimes
overruled and physical process may be adopted if the Courts deems fit for the best reasons as there would not
be any embargo to resort to physical process in situations where the Court is not satisfied by online
proceedings.
17. Admittedly, we live in a scientific age of information technology. Advancement in technology always poses
new challenges and threats. The internet is a world of technological environment in itself. The records that
are electronically saved have permanent nature and are not expected to be lost. It shall give way to
transparency and accountability in the judicial system in terms of modern reforms. In preceding paragraphs,
it is discussed as to how this concept though in a narrow manner has been welcomed by the Hon’ble Supreme
Court of Pakistan and the Hon’ble Lahore High Court and there is no cavil at saying no failure has been met.
 As far as complications with regard to lack of expertise in courts or lack of funds to make it reality is
concerned, it is suggested that State machinery can be moved to provide for these in the best interest and
larger benefit of not only courts and litigants but the State itself which is a very serious stake holder of
judicial proceedings.
18. It is indisputable that establishment of E-Courts in the country itself shall be no less a revolution and
revolutions need professionals; and, that’s what our focus should be on. The major impediment perturbing
most of us might be difficulty of experimentation but it has to be done if we have decided to improve the
things. English schools teach their children the PMI system asking them to scan for the Plus points, then for
the Minus points and finally for the Interesting points – a simple, deliberate operation which is easily carried
out. This PMI system improves perceptions and that’s what we are required to do – weighing and comparing
plus points with minus points. And this shall be done in order to design the way forward through constructive
thinking and not mere positive thinking; positive thinking is simply being optimistic about things while
constructive thinking seeks to improve the things. Things may be difficult yet not impossible.
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