Saturday, 22 September 2012

NGO Registeration Process

1. A society is registered under societies registration act 1860. It comprises of 20 member of general body at least and among them at least 7 members are office bearers. It is registered in a particular district with having all the office bearers belonging to the same district at least. A society can be registered for few purposes only. Such as for the promotion of art and education.

2. A section 42 company is a foundation as per my knowledge. It is registered under Companies Ordinance 1984. It has the greatest jurisdiction in terms of NPOs (Non Profit Organizations) as it has the tendency to work in all Pakistan. It consists of at least 3 promoters and 8 board of directors as per my knowledge. The promoters cannot take any designation in it. On the other hand the board of directors are empowered to make rules and appoint office bearers. It has a registration fee of 85000 Pakistani Rupees as per my knowledge and lawyer's fee is exclusive of that.

3. Another type of non profit organization is a Volunteer Social Welfare Organization which is registered under Volunteer social welfare act, 1961. It has a similar structure to that of a society and it is registered in a particular district. The different between this type of NGO and society is that it can be registered for any charitable and social purpose. Both of these are subjected to clearance. Society requires approval from Special Branch only which a VSWA Organization requires approval from certain agencies.

4. Another type of NGO is a trust. It is also registered at a district level. It has an author(trustor), at least two Trustees and beneficiaries. It is registered under Trust Act 1882.

5. A housing society is registered under corporate societies act. It has a different concept as it is not for charitable purposes.

Regards,
Salman Yousaf Khan (Golra)
Advocate High Court
www.thepleaders.com

Sunday, 9 September 2012

Primary and Secondary Evidence

Primary and secondary evidence is discussed in detail in the Qanon-e-Shahadat Ordinance 1984. It is the evidence statute in Pakistan at the moment... The relevant articles are mentioned below:-

72. Proof of contents of documents. The contents of documents may be proved either by primary or by secondary evidence.
COMMENTARY
Arts. 72, 75, 78, 79. Court can consider a document admissible if a document produced is on record but Presiding Officer has not put exhibit number on the document.
2a. Evidence, admissibility of. Petitioner contended that copies of forms regarding sanction of plan were not public documents and could not have been exhibited without formal proof. Held: No objection having been raised when such documents were tendered in evidence and exhibited, no objection could be allowed to be raised at later stage in revision.
3. Non-production of original document before Settlement Authorities. Effect. Joint allotted of shop in dispute. Defendant claimed that plaintiff had surrendered his claim to the extent of his ½ share in shop in question and had executed deed of surrender in his favour. Such deed, however, having not been placed before Settlement Authorities, could not be verified and accepted after notice without recording the statement of plaintiff. Deed of surrender, therefore, had no value and on basis thereof, P.T.D. for the whole shop should not have been issued in favour of defendant alone. Permanent Transfer Deed issued in favour of defendant to the extent of plaintiff’s share in shop in question, was thus not valid

73. Primary evidence. “Primary evidence” means the document itself produced for the inspection of the Court.
Explanation 1. Where a document is executed in several parts, each part is primary evidence of the document.
Where a document is executed in counterpart, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.
Explanation 2. Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.
Illustration
A person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.
COMMENTARY
To prove contents of documents, claimant is bound to produce primary or secondary evidence unless execution of the same is admitted by the opponent.

74. Secondary evidence. — “Secondary evidence” means and includes—
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves insure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
Illustrations
(a) A photograph of an original is secondary evidence of its contents though the two have not been compared, if it is proved that the thing photographed was the original.
(b) A copy, compared with a copy of a letter made by a copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.
(c) A copy transcribed from a copy, but afterwards compared with the original is secondary evidence; but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.
(d) Neither an oral account of a copy compared with the original, nor an oral account of a photograph or machine-copy of the original, is secondary evidence of the original.
COMMENTARY
Report of Magistrate would be enough to justify attraction of Art. 76(c) for purpose of production of secondary evidence in terms of Art. 74.4a
Qanun-e-Shahadat Order is applicable to Provincially Administered Tribal Areas including Malakand Division. Murder cases cannot be decided on basis of Qasamat as it is not recognized as a mode of evidence under Qanun-e-Shahadat Order. Courts in PATA should follow provisions of Qanun-e-Shahadat Order, particularly Art. 17, in their true perspective.

75. Proof of documents by primary evidence. — Documents must be proved by primary evidence except in the cases hereinafter mentioned.
COMMENTARY
Execution of sale-deed by a person claiming to be holding power-of-attorney from the owner. Owner denying having executed any power-of-attorney in favour of said person. Original power-of-attorney was not produced in Court, Photostat copy produced could not, in the absence of original, be taken into consideration. Person holding purported power-of-attorney did not appear in Court to contest suit by the owner (plaintiff). Defendant (vendee) acknowledge in his statement before Court that he was not supplied original power-of-attorney at the time of execution of sale-supplied original power-of-attorney at the time of execution of sale-deed. Power-of-attorney was thus, a forged document and person executing sale-deed on basis thereof, had no authority to execute any sale-deed on behalf of the owner (plaintiff). Sale-deed executed in favour of vendee-defendant was, thus, not valid.6

76. Cases in which secondary evidence relating to document may be given. — Secondary evidence may be given of the existence, condition or contents of a document in the following cases:—
(a) when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court; or of any person legally bound to produce it; and when, after the notice mentioned in Article 77 such person does not produce it;
(b) when the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative-in-interest;
(c) when the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;
(d) when, due to the volume or bulk of the original, copies thereof have been made by means of microfilming or other modern devices;
(e) when the original is of such a nature as not to be easily movable;
(f) when the original is a public document within the meaning of Article 85;
(g) when the original is a document of which a certified copy is permitted by this Order, or by any other law in force in Pakistan, to be given in evidence;
(h) when the originals consists of numerous accounts or other documents which cannot conveniently be examined in Court, and the fact to be proved is the general result of the whole collection;
(i) when an original document forming part of a judicial record is not available and only a certified copy thereof is available, certified copy of that certified copy shall also be admissible as a secondary evidence.
In cases (a), (c), (d) and (e), any secondary evidence of the contents of the document is admissible.
In case (b), the written admission is admissible.
In case (f) or (g), certified copy of the document, but no other kind of secondary evidence, is admissible.
In case (h), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such document.
COMMENTARY
Secondary evidence of report of identification parade cannot be allowed or permitted to be adduced when no effort had been made to locate the original report of identification parade.6a

77. Rules as to notice to produce. — Secondary evidence of the contents of the documents referred to in Article 76, paragraph (a) shall not be given unless the party proposing to give such secondary evidence has previously given to the party in whose possession or power the document is, or to his advocate, such notice to produce it as is prescribed by law; and, if no notice is prescribed by law, then such notice as the Court considers reasonable under the circumstances of the case;
Provided that such notice shall not be required in order to render secondary evidence admissible in any of the following cases, or in any other case in which the Court thinks fit to dispense with it:—
(1) when the document to be proved is itself a notice;
(2) when, from the nature of the case, the adverse party must know that he will be required to produce it;
(3) when it appears or is proved that the adverse party has obtained possession of the original by fraud or force;
(4) when the adverse party or his agent has the original in Court;
(5) when the adverse party or his agent has admitted the loss of the document;
(6) when the person in possession of the document is out of reach of, or not subject to, the process of the Court.

78. Proof of signature and handwriting of person alleged to have signed or written document produced. If a document is alleged to be signed or to have been written wholly or in part by any person, the signature of the handwriting of so much of the document as is alleged to be in that person’s handwriting must be proved to be in his handwriting.
COMMENTARY
Suit for specific performance of agreement to sell property. Disputed signatures. Plaintiff is required to prove the signatures of the executant of the agreement.7

79. Proof of execution of document required by law to be attested. If a document is required by law to be attested, it shall not be used as evidence until two attesting witnesses at least have been called for the purpose of proving its execution, if there be two attesting witnesses alive, and subject to the process of the Court and capable of giving evidence:
Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Registration Act, 1908 (XVI of 1908), unless its execution by the person by whom it purports to have been executed is specifically denied.
COMMENTARY
Revisional jurisdiction, exercise of. Courts below had recorded very cogent reasons for decreeing plaintiff’s suit by placing reliance upon circumstantial evidence as also on evidence on record for coming to conclusion that neither document in question, was proved to have been executed nor the same was verified in accordance with law. Original document was also not placed on record. Findings recorded by Courts below on the question of execution of alleged document being lawful could not be interfered with. Judgments and decrees of Courts below were maintained in circumstances.8
Proof of execution of private document. Execution of such document had to be proved by examining the scribe and an attesting witness. Such persons having not been examined, document in question, would be deemed to have not been proved and could be excluded from consideration.9
Agreement to sell. Proof and admissibility. Scribe of document when a competent witness. Evidence of one marginal witness and scribe. Evidentiary value of. Agreement to sell was proved through the statement of one marginal witness and scribe of the document in question. Ordinarily a scribe who had merely scribed a document and handed it over to parties for their signatures and the signatures of attesting witnesses would not become competent attesting witness, if such document was executed elsewhere in his absence. Where, however, document in question, was actually executed in presence of scribe and parties and attesting witnesses had signed the same in his presence, he (scribe) could be treated as attesting witness although he had not signed the document in that capacity.1
Agreement to sell. Execution of. Proof of. Parties had executed document in presence of scribe and signed it. Even attesting witnesses had signed document in presence of scribe. Scribe can be treated to be an attesting witness although he has not signed it in that capacity. Requirements of provisions of Article 79 read with Article 17 of Qanun-e-Shahadat have been substantially complied with. Admittedly original document as placed on record, but record having been burnt, was reconstructed under orders of High Court. No objection was raised at time of reconstruction of file regarding genuineness of agreement to sell. Held: No jurisdiction defect in impugned judgments and decrees of Courts below or any misreading or non-reading of evidence has been pointed out to justify interference in concurrent findings of fact recorded by Courts below. Petition dismissed.2
Marginal witnesses of disputed deed. Evidentiary value of. No lacuna in the evidence of marginal witnesses was apparent or pointed out, therefore, their veracity could not be described. Evidence of such witnesses, alone was sufficient to prove the document in question, even if other evidence was altogether ignored.3
Proof of execution of document required by law to be attested. Exception. Documents required by law to be attested would not be used as evidence until two attesting witnesses, who if alive were amenable to jurisdiction of Court and capable of giving evidence were produced. Not necessary to call attesting witnesses to prove execution of a documents, which was (not a will) registered in accordance with Registration Act, 1908, unless execution thereof, was specifically denied by the person who allegedly executed the document. Document in question, being registered one, and its existence having not been denied, its execution could be proved by certified copy thereof.4

Testification in the court

Who can testify in the court?

The answer to this question is present in Article 3 of Qanon-e-shahadat Ordinance 1984 in the following words:-

3. Who may testify. All persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender year, extreme old age, disease, whether of body or mind, or any other cause of the same kind;
Provided that a person shall not be competent to testify if he has been convicted by a Court for perjury or giving false evidence:
Provided further that the provisions of the first proviso shall not apply to a person about whom the Court is satisfied that he has repented thereafter and mended his ways:
Provided further that the Court shall determine the competence of a witness in accordance with the qualifications prescribed by the Injunctions of Islam as laid down in the Holy Quran and Sunnah for a witness, and, where such witness is not forthcoming, the Court may take the evidence of a witness who may be available.
Explanation. A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them.
COMMENTARY
Child witness. Evidentiary value. Evidence of child witness is to be assessed with care and caution.4
Child witness, evidence of. Value. Evidence of a child witness being a delicate matter, was not safe to rely upon unless corroborated.5
Witness. Who may testify.6
Child witness. Competency. What the law requires is not the factor of age, but the intelligence of a particular child witness in the circumstances of the case.7
Competency of persons to testify. Rule enunciated in Art. 3 of Qanun-e-Shahadat , 1984, is not an absolute or inflexible rule.8

Concept of contradiction and corroboration

Contradiction and Corroboration

Article 140 of Qanoon-e-Shahadat Ordinance deals with contradiction while article 152 deals with corroboration. They both are reproduced below..

Contradiction

140. Cross-examination as to previous statements in writing. A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, without such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.
COMMENTARY
State counsel unauthorized to cross-examine his own witness with leave of Court if witness does not support prosecution during trial. If, however, permission under Art. 140 is not sought and witness was not got declared hostile, Court is bound to give credit to statement of witness and give whatever benefit from evidence of such witness goes to accused. Benefit of such evidence, however, would not be extended to all accused facing trial, but would be extended only to accused in whose favour such evidence has been given. For this reason alone, prosecution case against other accused persons shall not be disbelieved.

Corroboration

152. Questions tending to corroborate evidence of relevant fact admissible. When a witness whom it is intended to corroborate gives evidence of any relevant fact, he may be questioned as to any other circumstances which he observed at or near to the time or place at which such relevant fact occurred if the Court is of opinion that such circumstances, if proved, would corroborate the testimony of the witness as to the relevant fact which he testifies.
Illustration
A, an accomplice, gives an account of robbery in which he took part. He describes various incidents unconnected with the robbery which occurred on his way to and from the place where it was committed.
Independent evidence of these facts may be given in order to corroborate his evidence as to the robbery itself.

Definition of Document

What is a document?

Document is defined in Article 2(b) of Qanon-e-Shahadat Ordinance 1984 in the following words...


(b) “document” means any matter expressed or described upon any substance by means of letters, figures or marks, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter;
Illustrations
A writing is a document;
Words printed, lithographed or photographed are documents;
A map or plan is a document;
An inscription on a metal plate or stone is a document;
A caricature is a document.

Thursday, 6 September 2012

Discharge of a person under criminal law

When a person can be discharged?

According to the code of criminal procedure an accused can be discharged under the following provisions:-


63. Discharge of person apprehended: No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

119. Discharge of person informed against: If, on an inquiry under Section 117, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made, should execute a bond the Magistrate shall make an entry on the record to that effect, and if such person is in custody, only for the purpose of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.
C.—Proceedings in all cases subsequent to order to furnish security

124. Power to release persons imprisoned for failing to give security: (1) Whenever the [Sessions Judge] is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged.

2) Whenever any person has been imprisoned for failing to give security under this Chapter, the [Sessions Judge] may (unless the order has been made by some Court superior to his own) make an order reducing the amount of the security or the number of sureties or the time for which security has been required.
(3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions, which such person accepts:
Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired.
(4) The Provincial Government may prescribe the conditions upon which a conditional discharge may be made.
(5) If any condition upon which any such person has been discharged is, in the opinion of the [Sessions Judge] by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same.
(6) When a conditional order of discharge has been cancelled under sub-section (5) such person may be arrested by any police-officer without warrant, and shall thereupon be produced before the [Sessions Judge.]
Unless such person then gives security in accordance with the terms of the original order for the unexpired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), the [Sessions Judge] may remand such person to prison to undergo such unexpired portion.
A person remanded to prison under this sub-section shall, subject to the provisions of Section 122 be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the Court or Magistrate by whom such order was made, or to its or his successor.
Subs. by Ordinance, XXXVII of 2001, dt. 13-8-2001.

423. Powers of Appellate Court in disposing of appeal: (1) The Appellate Court shall
then send for the record, of the case, if, such record is not already, in Court. After
perusing such record, and hearing the appellant or his pleader, if he appears and the
Public Prosecutor, if he appears, and in case of an appeal under Section 411-A,
sub-section (2) or Section 417, the accused, if he appears, the Court may, if it considers
that there is no sufficient ground for interfering, dismiss the appeal, or may--
(a) in an appeal from an order of acquittal, reverse such order and direct that further
inquiry be made, or that the accused be tried or sent for trial to the Court of Session or
High Court as the case may be, or find him guilty and pass sentence on him according to
law;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and acquit or
discharge the accused, or order him to be tried by a Court of competent jurisdiction
subordinate to such Appellate Court of i7[sent for trial, or (2) after the finding, maintaining
the sentence, or, with or without altering the finding, reduce the sentence, or (3) with or
without such reduction and with or without altering the finding after the nature of the
sentence, but subject to the provisions of Section 106, sub-section (3), not so as to
enhance the same;
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment ;or any consequential or incidental order that may be just or
proper.
(2) [Omitted by Law Reforms Ordinance, Xll of 1972.]

494. Effect of withdrawal from prosecution : Any Public Prosecutor may, with the
consent of the Court, before the judgment is pronounced, withdraw from the prosecution
of any person either generally or in respect of any one or more of the offences for which
he is tried; and upon such withdrawal,--
(a) if it is made before a charge has been framed, the accused shall be discharged in
respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no charge is
required, he shall be acquitted in respect of such offence or offences:


496. In what cases bail to be taken: When any person other than a person accused of a
non-bailable offence is arrested or detained without warrant by an officer incharge of a
police station or appear or is brought, before a Court, and is prepared at any time while in
the custody of such officer or at: any stage of the proceedings, before such Court to give
bail, such person shall be released on bail, Provided that such officer or Court, if he or it
thinks fit, may, instead of taking bail from such person, discharge him on his executing a
bond
without sureties for his appearance as; hereinafter provided:
Provided, further that' nothing-in this section shall be deemed to affect the provisions of
Section 107, sub-section (4), or Section 117, sub-section (3).

500. Discharge from custody: (1) As soon as the bond has been executed, the person
for whose appearance it has been executed .shall be released; and, when he is in jail, the
Court admitting him to bail shall issue an order of release to the officer incharge of the jail
and such officer on receipt of the order shall release him.
(2) Nothing in this section, Section 496 or Section 497 shall be deemed to require the
release of any person liable to be detained for some matter other than that in respect of
which the bond was executed.

Columns of Police Report under section 173

Columns of Police Report

There are seven columns in police report which is presented in the court of law under section 173 of code of criminal procedure 1898. This police report is also known as Challan at most places..

Column No 1 of the police report includes the name of informant or complainant.

Column No 2 of the challan or police report includes the names of people which are declared innocent by police. Similarly the names of people which are absconders are also mentioned in this column. Similarly the accused which are not arrested and having warrants issued on their names are also mentioned in this column.

Column No 3 has the names of people which are on bail in the certain case.

Column No 4 is for the people which are discharged by the court in any other manner..

Column No 5 of police report has the details of recovery which has been made in the instant case.

Column No 6 of the challan consists of the names of witnesses in the instant case.

Column No 7 of the police report has the detailed viewpoint of the police regarding the case. Usually it has the story similar to the one written in the FIR by the Investigating Officer.

Contact International Lawyer

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Regards,
Salman Yousaf Khan
Chairperson
International Lawyer
+92-333-5339880