Updated: Thursday May 25, 2023/AlKhamis Thoul Ki'dah 06, 1444/Bruhaspathivara Jyaistha 04, 1945, at 02:12:51 PM
CODE OF CRIMINAL PROCEDURE
(ACT
V OF 1898)
PART I
PRELIMINARY
CHAPTER-1
1. Short
title and Commencement:
Extent.
2. (Repealed)
3. References to Code of Criminal
Procedure and other repeated enactments.
Expressions in former Acts.
4. Definitions.
Words referring to acts
Words to have same meaning as in
Pakistan Penal Code.
5. Trial of offences under Penal Code.
Trial of offences against other laws
PART II
CONSTITUTION AND POWERS
OF CRIMINAL COURTS
AND OFFICES
CHAPTER II
OF THE CONSTITUTION OF CRIMINAL COURTS
AND OFFICES
A. Classes of Criminal Courts
6. Classes of Criminal Courts and
Magistrates.
B. Territorial Divisions
7. Sessions divisions and districts.
Power to alter divisions and districts.
Existing divisions and districts
maintained till altered.
8. Power to divide districts into
subdivisions.
Existing sub-divisions districts
maintained.
C—Courts and offices
9. Court of Session.
10. District Magistrates.
11. Officers temporarily succeeding to
vacancies in office of District Magistrate.
12. Subordinate Magistrates.
Local limits of their jurisdiction.
13. Power to put [Executive Magistrate]
in charge of sub-divisions
Delegation of powers to District
Magistrate.
14. Special Judicial and Executive
Magistrates.
15. Benches of Magistrates,
Powers exercisable by Bench in absence
of special direction.
16. Power to frame rules for guidance of
Benches.
17. Subordination of Judicial
Magistrates and Benches to Sessions Judge.
Subordination of Executive Magistrates
to District Magistrate.
Subordination of Executive Magistrates
to Sub- Divisional Magistrate.
Subordination of Assistant Sessions
Judges to Sessions Judge
D.—Courts of Presidency Magistrates
18-21 [Omitted].
E.—Justices of the Peace
22. Justice-of the peace for the mufassil.
22. Appointment of Justices of the
Peace.
22-A. Powers of Justices of the Peace.
22-B. Duties of Justices of the Peace.
23-24. [Repealed].
25. Ex-Officio Justices of the Peace.
F.—-Suspension and Removal
26-27 [Repeated].
CHAPTER III
POWERS OF COURTS
A—Description of offences cognizable by
each Court
28. Offences under Penal code
29. Offences tinder other laws.
29-A. [emitted],
29-B. Jurisdiction in the cases of
juveniles.
30. Offences not punishable with death.
B. Sentences which may be passed by
Courts of various Classes.
31. Sentences which High Court and
Sessions Judges may pass.
32. Sentences which Magistrates may
pass.
33. Power of Magistrates to sentence to
imprisonment in default of fine.
34. Higher powers of certain District Magistrates.
34-A. [Omitted].
35. Sentence in case of conviction of
several offences at one trial.
Maximum term of punishment
C. —Ordinary and Additional Powers
36. Ordinary powers of Magistrates. .
37. Additional powers Conferrable on
Magistrates.
38. Control of District Magistrate’s
investing power.
D.—Conferment, Continuance and
Cancellation of Powers
39. Mode of conferring powers.
40. Powers of officers appointed.
41. Powers may be cancelled.
PART III
GENERAL PROVISIONS
CHAPTER IV
OF AID AND INFORMATION TO THE
MAGISTRATES, THE POLICE AND PERSONS
MAKING ARRESTS
42. Public when to assist Magistrate and
Police.
43. Aid to person, other than police
officer, executing warrant.
44. Public to give information of
certain offences.
matters.
Appointment of village headmen by
District Magistrate or Sub-Divisional, Magistrate in
certain cases for purposes of this
section.
CHAPTER V
OF ARREST, ESCAPE AND
RETAKING
A.—Arrest generally
46. Arrest how made. .
Resisting endeavour to arrest.
47. Search of place entered by person
sought to be arrested.
48. Procedure where ingress not
obtainable.
Breaking open zenana.
49. Power to break open doors and
windows for purposes of liberation.
50. No unnecessary restraint.
51. Search of arrested persons.
52. Mode of searching women.
53. Power to seize offensive weapons.
B.--Arrest without Warrant
54. When police may arrest without
warrant.
55. Arrest of vagabonds, habitual
robbers, etc.
56. Procedure when police-officer
deputes subordinate to arrest without warrant.
57. Refusal to give name and residence.
58. Pursuit of offenders into other
jurisdiction.
59. Arrest by private persons and
procedure on such arrest.
60. Person arrested to be taken before
Magistrate or officer incharge of police-station.
61. Persons arrested not to be detained
more than twenty-four hours.
62. Police to report apprehensions.
63. Discharge of person apprehended.
64: Offence committed in Magistrate’s
presence.
65. Arrest by or in presence of
Magistrate.
66. Power, on escape, to pursue and
retake.
67. Provisions of Sections 47, 48 and 49
to apply to arrest under Section 66.
CHAPTER VI
OF PROCESSES To COMPEL
APPEARANCE
A ---Summons
68. Form of summons.
Summons by whom served.
69. Summons how served.
Signature of receipt for summons.
70. Service when person summoned cannot
be found.
71. Procedure when service cannot be
effected as before provided.
72. Service on servant of State or of
Railway Company.
73. Service of summons outside local
limits.
74. Proof of service in such cases and
when serving officer not present.
B:— Warrant of Arrest
75. Form of warrant of arrest.
Continuance of warrant of arrest.
76. Court may direct security to be
taken.
Recognizance to be forwarded.
77. Warrants to whom directed
Warrants to several persons.
78. Warrant may be directed to
landholders, etc.
79. Warrant directed to police officer.
80. Notification of substance of
warrant.
81. Person arrested to be bought before
Court without delay.
82. Where warrant may be executed.
83. Warrant forwarded for execution
outside / jurisdiction.
84. Warrant directed to police officer
for execution outside jurisdiction.
85. Procedure on arrest of person
against whom warrant issued.
86. Procedure by Magistrate before whom
person arrested is brought.
86-A. Procedure for removal in custody
to Tribal Areas.
C.—Proclamation and Attachment
87. Proclamation for person absconding.
88. Attachment of property of person
absconding.
89. Restoration of attached property.
D.—Other Rules regarding Processes
90. Issue of warrant in lieu of or in
addition to summons.
91. Power to take bond for appearance.
92. Arrest by breach of bond for
appearance.
93. Provisions of this Chapter general
applicable to summons and warrants of arrest.-
E— Special Rules regarding processes
issued for service or execution outside Pakistan and processes received from
outside Pakistan for service or execution within Pakistan
93-A. Sending of summons for service
outside
93-B. Sending of warrants for execution
outside
93-C. Service and execution in
CHAPTER VII
OF PROCESSES TO COMPELL
THE PRODUCTION OF DOCUMENTS
AND OTHER MOVABLE
PPORERTYAND FOR THE DISCOVERY OF
PERSONS WRONGFULLY
CONFINED
A.—Summons to produce
94. Summons to produce document or other
thing.
95. Procedure as to letters and
telegrams.
B-Search-warrants
96. When search warrant may be issued.
97. Power to restrict warrant.
98. Search of house suspected to contain
stolen property, forged documents, etc.
99. Disposal of things found in search
beyond, jurisdiction.
99-A. Power to declare certain
publications & forfeited and to issue search-warrants for
the same,
99-B. Application to High Court to set
aside order of forfeiture.
99-C. [Omitted].
99-D. Order of [High Court] setting
aside forfeiture.
99-E. Evidence to prove nature or
tendency of newspaper.
99-F. Procedure in High Court.
99-G. Jurisdiction barred.
C.—Discovery of persons wrongfully
confined
100. Search for persons wrongfully confined.
D. General Provisions relating to
Searches
101. Direction, etc. of search warrants.
102. Persons incharge of closed place to
allow search.
103. Search to be made in presence of
witnesses.
Occupant of place searched may attend.
E-- Miscellaneous
104. Power to impound document, etc.,
produced.
105. Magistrate may direct search in his
presence.
PART IV
PREVENTION OF OFFENCES
CHAPTER VIIl
OF SECURITY FOR KEEPING
THE PEACE AND FOR GOOD
BEHAVIOUR
A. —Security for
keeping the Peace on Conviction
106. Security for keeping the peace on
conviction.
B. —Security for
Keeping the peace in other cases and security
for good Behaviour
107. Security for keeping the peace in
other cases.
Procedure if Magistrate not empowered to
act under sub-section (1),
108. Security for good behaviour from
persons disseminating seditious matter.
109. Security for good behaviour from
vagrants and suspected persons.
110. –Security for good behaviour from
habitual offenders.
111. Proviso as to European vagrants:
[Repeated].
112. Order to be made.
113. Procedure in respect of person
present in Court.
114. Summons or warrant in case of
person not so present.
115. Copy of order under Section 112 to
accompany summons or warrant.
116. Power to dispense with personal
attendance.
117. Inquiry as to truth of information
118. Order to give security.
119. Discharge of person informed
against.
C.—Proceedings in all
cases subsequent to order to furnish
security
120. Commencement of period for which
security is required.
121. Contents of bond.
122. Power to reject sureties.
123. Imprisonment in default of
security.
Proceedings when to be laid before High
Court or Court of Session.
Kind of imprisonment.
124. Power to release persons imprisoned
for failing to give security.
125: Power to District Magistrate to
conceal any bond for keeping the peace or good
behaviour.
126. Discharge of sureties.
126-A.Security for un-expired period of
bond.
CHAPTER IX
UNLAWFUL ASSEMBLIES
[AND MAINTENANCE OF
PUBLIC PEACE AND SECURITY]
127. Assembly to disperse or command of
Magistrate or police-officer.
128. Use of civil force to disperse.
129. Use of military force.
130. Duty of officer commanding troops
required by Magistrate to disperse assembly.
131. Power of commissioned,, military
officer to disperse assembly.
131-A.Power to use military force for
public security and maintenance of law and order.
132. Protection against prosecution for
acts done under this Chapter.
132-A. Definitions.
CHAPTER X
PUBUC NUISANCES
133. Conditional order for removal of
nuisance.
134. Service or notification of order.
135. Person to whom order is addressed
to obey or show cause or claim Jury.
136. Consequence of his failing to do
so:
137. Procedure where he appears to show
cause.
138. Procedure when he claims jury.
139. Procedure where jury finds
Magistrate’s order to be reasonable.
139-A. Procedure where existence of
public right is denied.
140. Procedure on order being made
absolute.
Consequences of disobedience to order.
141. Procedure on failure to appoint
Jury or omission to return verdict.
142. Injunction pending inquiry
143. Magistrate may prohibit repetition
or continuance of public nuisance.
CHAPTER XI
TEMPORARY ORDERS IN
URGENT CASES OF NUISANCE OR
APPREHENDED DANGER
144. Power to issue order absolute at
once tri urgent cases of nuisance or apprehended
danger.
CHAPTER XII
DISPUTES AS TO
IMMOVABLE PROPERTY
145. Procedure where dispute concerning
land. etc. is likely to cause breach of peace.
Inquiry as to possession.
Party in possession to retain possession
until legally evicted.
146. Power to attach subject of dispute.
147. Dispute concerning rights .of use
of immovable property, etc.
148. Local inquiry.
Order as to costs,
CHAPTER XIII.
PREVENTIVE ACTION OF
THE POLICE
149. Police to prevent cognisable
offences.
150. Information of design to commit
such offences.
151. Arrest to prevent such offences.
152. Prevention of injury to public
property.
153. Inspection of weights and measures.
PART V
INFORMATION TO POLICE
AND THEIR POWERS TO INVESTIGATE
CHAPTER XIV
154. Information in cognizable cases.
155. Information in non-cognizable
cases.
Investigation into non-cognizable eases.
156. Investigation into cognizable
cases.
157. Procedure where cognizable offence
suspected.
Where local investigation dispensed
with.
Where police-officer incharge sees no
sufficient ground for investigation.
158. Reports under Section 157 how
submitted.
159. Power to hold investigation or
preliminary inquiry.
160. Police-officer’s power to require
attendance of witnesses. .
161. Examination of witnesses by potted;
162. Statements to police not to be
signed, use of such statements in evidence.
163. No inducement to be offered.
164. Power to record statements and
confessions.
165. Search by police officer.
166. When officer incharge of police
station may require another to issue search warrant.
167. Procedure when investigation cannot
be completed in twenty-four hours.
168. Report of investigation by
subordinate police officer.
169. Release of accused when evidence
deficient.
170. Case to be sent to Magistrate when
evidence is sufficient.
171. Complainants and witnesses not to
be required to accompany police-officer.
Complainants and witnesses not to be
subjected to restraint.
Recusant complainant, witness may be
forwarded in custody.
172. Diary of proceedings in investigation.
173. Report of police officer.
174. Police to inquire to report in
suicide, etc.
175. Power to summon persons.
176. Inquiry by Magistrate into cause of
death.
Power to disinter, corpses.
PART VI
PROCEEDINGS IN
PROSECUTIONS
CHAPTER XV
OF THE JURISDISTION OF
THE CRIMINAL COURTS OF INQUIRES AND
TRIALS
A-Place of Inquiry or
trial
177. Ordinary place of inquiry and
trial.
178. Power to order, cases to be tried
in different sessions divisions.
179. Accused triable in district where
act is done or where consequence ensues.
180. Place of trial where act is offence
by reason of relation to other offence.
181. Being a thug or belonging to a gang
of dacoits, escape from custody etc.
Criminal misappropriation and criminal
breach of trust.
Theft, Kidnapping and abduction.
182. Place of inquiry or trial where
scene of offence is uncertain or not in one district only
or where offence is continuing or
consists of several acts.
183. Offence committed on a journey.
184. Offence against Railway, Telegraph,
Post Office & Arms Act.
185. High Court to decide in case of
doubt, district where inquiry or trial shall take place.
186. Power to issue summons or warrant
for offence committed beyond local jurisdiction.
Magistrate’s procedure on arrest.
187. Procedure where warrant issued by
subordinate Magistrate.
188. Liability of offences committed outside
Political Agents to certify fitness of
inquiry into charges.
189. Power to direct copies of
depositions and exhibits to be received in evidence.
B. -Conditions
requisite for initiation of proceedings
190. Cognizance of offence by
Magistrates.
191. Transfer on application of accused.
192. Transfer of cases by Magistrate.
193. Cognizance of offences by Courts of
Session.
194. Cognizance of offences by High
Court.
Prosecution for contempt of lawful
authority of public servants.
Prosecution for certain offences against
public justice.
Prosecution for certain offences
relating to documents given in evidence.
196. Prosecution for offences against
the State.
196-A. Prosecution for certain classes
of criminal conspiracy.
196.-B. Preliminary inquiry in certain
cases.
197. Prosecution of Judges and public
servants.
Power of president or Governor as to
prosecution.
198. Prosecution for breach of contract,
defamation and offences against marriage.
198-A. Prosecution for defamation
against public servants in respect of their conduct in
the discharge of public functions.
199. Prosecution for adultery or
enticing a married woman.
199-A. Objection by lawful guardian to
complaint by person other than person aggrieved.
199-B. Form of authorisation under
second proviso to Section 198 or 199.
CHAPTER XVI
OF COMPLAINTS TO
MAGISTRATES
200. Examination of complainant.
201. Procedure by Magistrate not
competent to take cognizance of the case.
202. Postponement of issue of process.
203. Dismissal of complaints.
CHAPTER XVII
OF THE COMMENCEMENT OF
PROCEEDINGS BEFORE COURT
204. Issue of process.
205. Magistrate may dispense with
personal attendance of accused.
CHAPTER XVIII
OF INQUIRY INTO CASES TRIABLE BY THE
COURT OF SESSION OR HIGH COURT
206 to 220. (Omitted)
CHAPTER XIX
OF THE CHARGE
Form Of Charges
221. Charge to state offence.
Specific name of offence sufficient
description.
How stated where offence has no specific
name.
What implied in charge.
Language of charge.
Previous conviction when to be set out.
222. particulars as to time, place and
person.
223. When manner of committing offence
must be stated.
224. Words in charge taken in sense of
law under which offence is punishable.
225. Effect of errors.
226. [Omitted].
227. Court may alter charge.
228. When trial may proceed immediately
after alteration.
229. When new trial may be directed or
trial suspended.
230. Stay of
proceedings if prosecution of offence in altered charge require previous
sanction.
231. Recall of witnesses when charge
altered.
232. Effect of material error.
Joinder of charges
233. Separate charges for distinct
offences.
234. Three offences of same kind within
year may be charged together.
235. Trial for more than one offence.
Offence falling within two definitions.
Acts constituting one offence, but
constituting when combined a different offence.
236. When it is doubtful what offence
has been committed.
237. When a person is charged with one
offence, he can be convicted of another.
238. When offence proved included in
offence charged.
239. What persons may be charged
jointly.
240. Withdrawal of remaining charges on
conviction on one of several charges.
CHAPTER XX
OF THE TRIAL OF CASES
BY MAGISTRATES
241. Procedure in trial of cases.
241-A. Supply of statements and
documents to the accused.
242. Charge to be framed.
243. Conviction on admission of truth of
accusation.
244. Procedure when no such admission is
made.
244-A. Statement made under Section 164.
245. Acquittal.
Sentence.
245-A. Procedure in cases of previous
convictions.
246. [Omitted].
247. Non-appearance of complainant.
248. Withdrawal of complaint.
249. Power to stop proceeding when no
complaint.
249-A. Power of Magistrate to acquit
accused at any stage.
Frivolous Accusations
in cases tried by Magistrate
250. False, frivolous or vexatious
accusations.
250-A. Special summons in case of petty
offences.
CHAPTER XXI
OF THE TRIAL OF WARRANT
CASES BY MAGISTRATES
251-259. [Omitted].
CHAPTER XXII
OF SUMMARY TRIALS
260. Power to try summarily.
261. Power to invest Bench of
Magistrates invested with less powers.
262. Procedure prescribed in Chapter XX
applicable.
Limit of imprisonment.
263. Record in cases where there is no
appeal.
264. Record in appealable cases.
265. Language of record and judgment.
Bench may be authorized to employ clerk.
CHAPTER XXII-A
TRIALS BEFORE HIGH
COURTS AND COURTS OF SESSION
265-A. Trials before Court of Session to
be conducted by Public Prosecutors.
265-B. Procedure in cases triable by
High Courts and Courts of Session.
265-C. Supply of statements and
documents to the accused.
265-D. When charge is to be framed.
265-E. Plea.
265-F. Evidence for prosecution.
265-G. Summoning up by prosecutor and
defence.
265-H. Acquittal or conviction.
265-1. Procedure in case of previous
conviction.
265-J. Statement under Section 164
admissible. .
265-K. Power of Court to acquit accused
at any stage.
265-L. Power of Advocate-General to stay
prosecution.
265-M. Time of holding sittings.
265-N. Place of holding sittings.
CHAPTER XXIII
OF THE TRIALS BEFORE
HIGH COURT AND COURTS OF SESSION
266--336. [Omitted].
CHAPTER XXIV
GENERAL PROVISIONS AS
TO INQUIRIES AND TRIALS
337. Tender of pardon to accomplice.
338. Power to grant tender of pardon.
339. Commitment of person to whom pardon
has been tendered.
339-A. Procedure in trial of person
under Section 339.
340. Right of person against whom
proceedings are instituted to be defended and his
competency to be a witness.
341. Procedure where accused does not
understand proceedings.
342. Power to examine the accused.
343. No influence to be used to induce
disclosures.
344. Power to postpone or adjourn
proceedings.
Remand.
Reasonable cause for remand.
345. Compounding offence.
346. Procedure of Magistrate in cases
which he cannot dispose of.
347. Procedure when after commencement
of trial, Magistrate finds case should be tried
by Court of Session or High Court .
348. Trial of persons previously
convicted of offences against coinage, stamp-law or
property.
349. Procedure when Magistrate cannot
pass sentence sufficiently severe.
350. Conviction or evidence partly
recorded by one Presiding Officer and partly by
another.
350-A. Changes in constitution of
Benches.
351. Detention of offenders attending
Court.
352. Courts to be open.
CHAPTER XXV
OF THE MODE OF TAKING
AND RECORDING EVIDENCE IN INQUIRIES
AND TRIALS
353. Evidence to be taken in presence of
accused.
354. Manner of recording evidence,
355. Record in trial of certain cases by
First and Second class Magistrates.
356. Record in other cases.
Evidence given in English.
Memorandum when evidence not taken down
by the Magistrate or Judge himself.
357. Language or record of evidence.
358. Option to Magistrate in cases under
Section 355.
359. Mode of recording evidence under
Section 356 or Section 357.
360. Procedure in regard to such
evidence when completed.
361. Interpretation of evidence to
accused or his pleader.
362. [Omitted].
363. Remarks respecting demeanour of
witness.
364. Examination how recorded.
365. Record of evidence in High Court.
CHAPTER XXVI
OF THE JUDGMENT
366. Mode of delivering judgment.
367. Language of Judgment -Contents of
Judgment.
Judgment in alternative.
366. Sentence of death.
369. Court not to alter judgment.
370. [Omitted}.
371. Copy of judgment etc., to be given
to accused.
Case of person sentenced to death.
372. Judgment when to be translated.
373. Court of Session to send copy of
finding and sentence to District Magistrate.
CHAPTER XXVII
OF THE SUBMISSION OF
SENTENCES FOR CONFIRMATION
374. Sentence of death to be submitted
by Court of Session.
375. Power to direct further inquiry to
be made or additional evidence to be taken.
376. Power to High Court to confirm
sentence or annual conviction.
377. Confirmation of new sentence to be
signed by two Judges.
378. Procedure in case of difference of
opinion.
379. Procedure in cases submitted to
High Court for confirmation.
380. Procedure in cases submitted by
Magistrate not empowered to act under Section
562.
CHAPTER XXVIII
OF EXECUTION
381. Execution of order passed under
Section 376.
382. Postponement of capital sentence on
pregnant woman.
382-A. Postponement of execution of
sentences of imprisonment under Section 476 or for a period of less than one
year.
382-B. Period of detention to be considered
while awarding sentence of imprisonment.
382-C. Scandalous or false and frivolous
pleas to be considered in passing sentence.
383. Execution of sentences of
transportation or imprisonment in other cases.
384. Direction of warrant for execution.
385. Warrant with whom to be lodged.
386. Warrant for levy of fine.
387. Effect of such warrant.
388. Suspension of execution of sentence
of imprisonment.
389. Who may issue warrant.
390. Execution of sentence of whipping
only.
391. Execution of sentence of whipping,
in addition to imprisonment.
392. Mode of inflicting punishment.
Limit of number of stripes.
393. Not to be executed by
instalments--Exemptions.
394. Whipping not to be inflicted if
offender not in fit state of health.
Stay of execution.
395. Procedure if punishment cannot be
inflicted under Section 394.
396. Execution of sentence on escaped
convicts.
397. Sentence of offender already
sentenced for another offence.
398. Saving as to Sections 396 and 397.
399. Confinement of youthful offenders
in reformatories.
400. Return of warrant on execution of
sentence.
CHAPTER XXIX
OF SUSPENSIONS,
REMISSIONS AND COMMUTATIONS OF
SENTENCES
401. Power to suspend or remit
sentences.
402. Power to commute punishment.
402-A. Sentence of death.
402-B. Certain restrictions on the
exercise of powers by Provincial Government.
402-C. Remission or commutation of
certain sentences not to be without consent.
CHAPTER XXX
OF PREVIOUS ACQUITTALS
OR CONVICTIONS
403. Person once convicted or acquitted
not to be tried for same offence.
PART VII
OF APPEAL, REFERENCE
AND REVISION
CHAPTER XXXI
OF APPEALS
404. Unless otherwise provided, no
appeal to tie.
405. Appeal from order rejecting
application for restoration of attached property.
406. Appeal from order requiring
security for keeping the peace or for good behaviour.
400-A. Appeal from order refusing to
accept or rejecting a surety.
407. [Omitted]
408. Appeal from sentence of Assistant
Sessions Judge or Judicial Magistrate.
409. Appeals to Court of Session how
heard.
410. Appeal from sentence of Court of
Session.
411. [Omitted]
411 -A. Appeal from sentence of High
Court.
412. No appeal in certain cases when
accused pleads guilty.
413. No appeal in petty cases.
414. No appeal from certain summary
convictions.
415. Proviso to Sections 413 and 414.
415-A. Special right of appeal in
certain cases.
416. [Repealed]
417. Appeal in case of acquittal.
418. Appeal on what matters admissible.
419. Petition of appeal.
420. Procedure when appellant in jail.
421. Summary dismissal of appeal.
422. Notice of appeal
423. Powers of Appellate Court in
disposing of appeal.
424. Judgments of subordinate Appellate
Courts.
425. Order by High Court on appeal to be
certified to lower Court.
426. Suspension of sentence pending
appeals--Release of appellant on bail.
427. Arrest of accused in appeal from
acquittal.
428. Appellate Court may take further
evidence or direct it to be taken.
429. Procedure where Judges of Court of
Appeal are equally divided.
430. Finality of orders on appeal.
431. Abatement of appeals.
CHAPTER XXXII
OF REFERENCE AND
REVISION
432--434. [Omitted].
435. Power to call for records of
Inferior Courts.
436. Power to order further inquiry.
437. [Omitted].
438. [Omitted].
439. High Court’s powers of revision.
440. Option with Court to hear parties.
441. [Omitted].
442. High Courts order to be certified
to lower Court or Magistrate.
PART VIII
SPECIAL PROCEEDINGS
CHAPTER XXXIII
443-463. [Omitted].
CHAPTER XXXIV
LUNATIC
464. Procedure in case of accused being
lunatic.
465. Procedure in case of person sent
for trial before Court of Session or High Court being lunatic.
466. Release of lunatic pending
investigation or trial.
Custody of lunatic.
467. Resumption of inquiry or trial.
466. Procedure on accused appearing
before Magistrate or Court.
469. When accused appears to have been
insane.
470. Judgment of acquittal on ground of
lunacy.
471. Person acquitted on such ground to
be detained in safe custody.
Power of Provincial Government to
relieve Inspector- General of certain functions.
472. [Repealed]
473. Procedure where lunatic prisoner is
reported capable of making his defence.
474. Procedure where lunatic detained
under Section 466 or 471 is declared fit to be
released.
475. Delivery of lunatic to care of
relative or friend.
CHAPTER XXXV
PROCEEDINGS IN CASE OF
CERTAIN OFFENCES AFFECTING THE
ADMINISTRATION OF
JUSTICE
476. Procedure in cases mentioned in
Section 195.
476-A. Forwarding of cases for trial by
Courts having jurisdiction.
476-B.[Omitted].
477. [Repealed].
478-479. [Omitted].
480. Procedure in certain cases of
contempt.
481. Record in such cases.
482. Procedure where Court considers
that case should not be dealt with under Sec. 480.
483. When Registrar or Sub-Registrar to
be deemed a
484. Discharge of offender on-submission
of apology.
485. Imprisonment or committal of person
refusing to answer or produce document.
486. Appeals from convictions in
contempt cases.
487. Certain Judges- and Magistrates not
to try offences referred to in Section 195 when
committed before them.
CHAPTER XXXVI
OF THE MAINTENANCE OF
WIVES AND & CHILDREN
488-490. [Omitted}.
CHAPTER XXXVII
DIRECTIONS OF THE
NATURE OF A HABEAS CORPUS
491. Power to issue directions of the
nature of a habeas corpus.
491-A. [Omitted]
PART IX
SUPPLEMENTARY
PROVISIONS
CHAPTER XXXVIII
OF THE PUBLIC
PROSECUTOR
492. Power to appoint Public
Prosecutors.
493. Public Prosecutor may plead in all
Courts in cases under his charge--Pleaders
privately instructed to be under his
direction.
494. Effect of withdrawal from
prosecution.
495. Permission to conduct prosecution.
CHAPTER XXXIX
OF BAIL
496. In what cases bail to be taken.
497. When bail may be taken in ease of
non-boilable offence.
498. Power to direct admission to bail
or reduction of bail.
498-A. No bail to be granted to a person
not in custody, in Court or against whom no case is registered, etc.
499. Bond of accused and sureties.
500. Discharge from custody.
501. Power to order sufficient bail when
that first taken is insufficient.
502. Discharge of sureties.
CHAPTER XL
OF COMMISSIONS FOR THE
EXAMINATION OF WITMESSES
503. When attendance of witness may be
dispensed with.
504. [Omitted].
505. Parties may examine witnesses.
506. Power of Magistrate to apply for
issue of commission.
507. Return of Commission.
508. Adjournment of inquiry or trial.
508-A. Application of this Chapter to
commissions issued in
CHAPTER XLI
SPECIAL RULES OF
EVIDENCE
509. Deposition of medical witness.
Power to summon medical witness.
510. Report of Chemical Examiner
Serologist.
511. Previous conviction or acquittal
how proved.
512. Record of evidence in absence of
accused.
Record of evidence when offender
unknown.
CHAPTER XLII
PROVISIONS AS TO BONDS
513. Deposit instead of recognizance.
514. Procedure on forfeiture of bond.
514-A. Procedure in case of insolvency
or death of surety or when a bond is forfeited.
514-B. Bond required from a minor.
515. Appeal from, and revision of,
orders under Section 514.
516. Power to direct levy of amount due
on certain recognizance.
CHAPTER XLIII
OF THE DISPOSAL OF
PROPERTY
516-A. Order for custody and disposal of
property pending trial in certain cases.
517. Order for disposal of property
regarding which offence committed.
518. Order may take form of reference to
District or Sub-Divisional Magistrate.
519. Payment to innocent purchaser of
money found on accused.
520. Stay of order under Sections
517,518 or 519.
521. Destruction of libellous and other
matter.
522. Power to restore possession of
immovable property.
522-A. Power to restore possession of
movable property.
523. Procedure by police upon seizure of
property taken under Section 51 or stolen.
Procedure where owner of property seized
unknown.
524. Procedure where no claimant appears
within six months.
525. Power to sell perishable property.
CHAPTER XLIV
OF THE TRANSFER OF
CRIMINAL CASES
526. High Court may transfer case or
itself try it.
Notice to Public Prosecutor of
application under this section.
Adjournment on application under this
section.
526-A. [Omitted].
527. Power of Provincial Government to
transfer cases and appeals.
528. Sessions Judge may withdraw cases
from Assistant Sessions Judge.
528-A. Powers of District Magistrate for
transfer of cases, etc.
CHAPTER XLIV-A
SUPPLEMENTARY
PROVISIONS RELATING TO EUROPEAN AND
PAKISTANI BRITISH SUBJECTS
AND OTHERS
[Omitted]
CHAPTER XLV
OF IRREGULAR
PROCEEDINGS
529. Irregularities which do not vitiate
proceedings.
530. Irregularities, which vitiate
proceedings.
531. Proceedings in wrong place.
532.- [Omitted].
533. Non-compliance with provisions of Section
164 or 364.
534. [Omitted].
535. Effect of omission to prepare
charge.
536. [Omitted].
537. Finding or sentence when reversible
by reason of error or Omission in charge or
other proceedings.
538- Attachment not illegal, person
making same not trespasser for defect or want of form
in proceedings.
CHAPTER XLVI
MISCELLANEOUS
539. Court and persons before whom
affidavits may be sworn.
539-A. Affidavit in proof of conduct of
public servant.
539-B. Local inspection.
540. Power to summon material witness or
examine person present.
540-A. Provision for inquiries and trial
being held in the absence of accused in certain
cases.
541. Power to appoint place of
imprisonment.
Removal to criminal jail of accused or
convicted
Persons who are in confinement in civil
jail and their return to the civil Jail.
542. Power of Presidency Magistrate to
order prisoner in Jail to be brought up for
examination.
543. Interpreter to be bound to
interpret truthfully.
544. Expenses of complainants and
witnesses.
544-A. Compensation of the heirs to the
persons killed, etc.
545. Power of court to pay expenses of
compensation out of fine.
546. Payments to be taken into account
in subsequent suit.
546-A. Order of payment of certain fees
paid by complainant in non-cognizable cases.
547. Moneys ordered to be paid
recoverable as fines.
548. Copies of proceedings.
549. Delivery to military authorities of
persons liable to be tried by Court-martial.
Apprehension of such persons;
550. Powers of police to seize property
suspected to be stolen.
551. Powers of superior officers of
police.
552. Powers to compel restoration of
abducted females.
553. [Repealed].
554. Power of High Courts of make rules
for inspection of records of subordinate Courts.
Powers of High Courts to make rules for
other purposes.
555. Forms.
556. Case in which Judge or Magistrate
is personally interested.
557. Practising pleader not to sit as
Magistrate in certain Courts.
558. Powers to decide language of Court.
559. Provision for powers of Judges and
Magistrates being exercised by their successors-in-office.
560. Officers concerned in sales not to
purchase or bid for property.
561. [repealed].
561 -A. Saving of inherent power of High
Court.
562. [repealed].
563--564. [repealed].
Previously convicted
offenders
565. Order for notifying address of
previously convicted offender.
SCHEDULE II.- Tabular Statement of
Offences.
SCHEDULE III.- Ordinary Powers of
Provincial Magistrates.
SCHEDULE IV. Additional Powers with
which Magistrates may be invested.
SCHEDULE V. Forms.
CODE OF CRIMINAL PROCEDURE
An
act to consolidate and amend the law relating to the criminal procedure
[
Preamble: Where as it is expedient to consolidate
and amend the law relating to criminal
Procedure, it is hereby enacted as follows.
PART I
PRELIMINARY
CHAPTER
I
1. Short
Title and Commencement: (1)
This Act may be called the Code of Criminal
Procedure, 1898; and it shall come into
force on the first day of July 1898.
(2)
Extent: It extends to
the whole of, Pakistan but, in the absence of any specific provision to the
contrary, nothing herein, contained shall affect any special or local law, new
in force, or any special jurisdiction or power conferred or any special form of
procedure prescribe by any other law for the time being in force.
2.
[Repeal of enactments, notifications, etc., under repealed Acts, Pending
cases]: Repealed by the Repealing and Amending Act, 1914 (X of 1914).
3.
References to Code of Criminal Procedure and other repealed enactments (1) In every enactment passed before this
Code comes into force in which reference is made to, or to any Chapter or
section of the Code of Criminal Procedure, Act XXV of 1861 or Act X Of 1872, or
Act X of 1882, or to any other enactment hereby repealed, such, reference so
far as may be practical be taken to be made to this Code or to its
corresponding chapter or section.
(2)
Expressions in former Acts: In
every enactment passed before this Code comes into force, the expressions “Officer
exercising (or ‘having’) the powers (or the full powers) of a Magistrate,” “Subordinate
Magistrate First Class” and “Subordinate Magistrate, Second class” shall
respectively be deemed to mean “Magistrate of the First class”, “Magistrate of
the Second Class” and Magistrate of the Third Class”. And the expression “joint
Sessions Judge” shall mean “Additional Sessions Judge”.
4.
Definitions: (1) In
this Code the following words and expressions have the following meanings,
unless a different intention appears from the subject or content:
(a)”Advocate-General”:
“Advocate-General”
includes also a Government Advocate or, where there is no Advocate-General or
Government Advocate, such officer as the Provincial Government may, from time
to time, appoint in this behalf.
(b) “Bailable
offence, “non-bailable offence”: “Bailable
offence” means an offence shown as bailable in the Second Schedule or which is
made bailable by any other law or the time being in force; and “non-bailable
offence means any other offence.
(c)
Charge: “Charge”
includes any head of charge when the charge contains more than one.
(d)
[Rep. by Act (XI of 1923), section 3 and Schd. I]
(e)
[Omitted by Law Reforms Ordinance (XII of 1972), Schd. Item I].
(f) ‘‘Cognizable
offence” , “cognizable case”: “Cognizable
offence” means an offence for, and cognizable case” means a ease in which a
police officer, may, in accordance with the second Schedule or under any law
for the time being in force, arrest without warrant.
(g)
[Rep. by the A.O. 1949]
(h) .’’Complaint”:
Complaint means the
allegation made orally or in writing to a Magistrate, with a view to his taking
action, under this Code that some person whether known or unknown, has
committed an offence, but it does not include the report of a police officer.
(i)
[Rep. by the Act II of 1950]
(j) “High
Court”: “High Court”
means the highest Court of criminal appeal or revision for a province,
(k)
Inquiry”: “Inquiry”
includes every inquiry other that a trial conducted under this Code by a
Magistrate or Court.
(l) “Investigation”: -Investigation” includes all the
proceedings under this Code for the collection of evidence conducted by a
police officer or by any person (other than a Magistrate) who is authorised by
a Magistrate in this behalf.
(m) “Judicial Proceeding”: “Judicial
proceeding” includes any proceeding in the course of which evidence is or may
be legally taken on oath.
(m-a)
“Magistrate”
means a Judicial Magnate and includes a Special Judicial Magistrate appointed
under Sections 12 and 14.
Clause
m-a inserted. by Ordinance, XXXVII of 2001, dt.l3-8-2001.
(n) “Non-cognizable
offence,” “Non-cognizable
case”: “Non-cognizable offence means an offence for, and “non-cognizable
case” means a case in which a police officer, may not arrest without warrant.
(o) “Offence”: “Offence” means any act or omission
made punishable by any law for the time being in force; it also includes any
act in respect of which a complainant may be made under Section 20 of the
Cattle Trespass Act, 1871.
(p) “Officer
incharge of a police station”:
“Officer incharge of a police station” induces, when the officer incharge of
the police station is-absent from tile station house or unable from illness or
cause to perform his duties, the police officer present at the station house
who is next in rank to such officer and is above the rank of constable or when
the Provincial Government so directs, any other police officer so present.
(q) “Place”: “Place” includes also a house,
building, tent and vessel.
(r) “Pleader”: “Pleader” used with
reference to any proceeding in any Court means a pleader for a mukhtar
authorised under any law for the time being in force to practise in such Court,
and includes (1) an advocate, a vakil and an attorney of a High Court so
authorised and (2) any other .person appointed with permission of the court to
act in such proceeding.
(s) “Police
station”: “Police
Station” means any post or place declared, generally or specially, by the
Provincial Government to be a police station, and includes any local area
specified by the Provincial Government in this behalf.
(t) “Public
Prosecutor”: “Public
Prosecutor” means any person appointed under Section 492, and includes any
person acting under the directions of a Public Prosecutor and any person
conducting a prosecution on behalf of the State in any High Court in the
exercise of its original criminal jurisdiction.
(u) “Sub-division”: Sub-division means a sub-division of
a district.
(v)
& (w) [Omitted by Law Reforms Ordinance, XII of 1972, Sched, item 1]
(2) Words
referring to acts: Words which refer to acts done, extend also to illegal
omissions; and
words
to have same meaning as in
5.
Trial of offences under Penal Code: (1)
All offences, under the Pakistan Penal Code Shall be investigated, enquired
into, tried, and otherwise dealt with according to the provisions hereinafter
contained.
(2)
Trial of offences against other laws:
All offences under any other law shall be investigated, enquired into, tried,
and otherwise dealt with according to the same provisions, but subject to any
enactment for the time being in force regulating the manner or place of
investigating, inquiring into, trying or otherwise dealing with such offences.
PART II
CONSTITUTION AND POWER OF CRIMINAL COURTS AND
OFFICES
CHAPTER II
OF THE CONSTITUTION OF CRIMINAL COURTS AND
OFFICES
A.------Classes
of Criminal Courts
6.
Classes of Criminal Courts and Magistrates: (1) Besides the High Courts and the Courts constituted
under any law other than this Code for the time being in force, there shall be
two classes of Criminal Courts in
(i)
Courts of Session;
(ii)
Courts of Magistrate.
[(2)
There shall be the following classes of Magistrate, namely:
(i)
Magistrate of the First Class;:
(ii)
Magistrate of the Second Class; and
(iii)
Magistrate of the Third Class,]
S.
6 subs by them 2 of Punjab Notification No. SO(J-ll) 1-8/75 (P-v), dated
^f-3-1996 for
Sub
Section (2) Subs. by Ordinance, XXXVII of 2001, dt.l3-8-2001.
B.----Territorial
Divisions
7.
Sessions divisions and districts:
(1) Each Province shall consist of sessions divisions; and every sessions
division shall, for the purposes of this Code, be a district or consist of
districts.
(2) Power
to alter divisions and districts: The Provincial Government may alter the
limits or the number of such divisions and districts.
(3) Existing
divisions and districts maintained till altered: The sessions divisions and
districts existing when this Code comes into force shall be sessions divisions
and districts respectively, unless and until they are so altered.
(4)
[Repeated by the Federal Laws (Revision and Declaration) Act, XXVI of 1951,
Section 3 and II Sched.]
8.
Power to divide districts into sub-divisions: (1) The Provincial Government may divide any district
into sub-divisions, or make any portions of any such district a subdivision and
may alter the limits of any sub-division.
(2)
[Omitted by the Ordinance XXXVII of 2001 dt.
C.
—Courts and offices
9.
Court of Session: (1)
The Provincial .Government shall establish a Court of Session for every
sessions division, and appoint a Judge of such Court.
(2) The
Provincial Government may, by general or special order in the official Gazette,
direct at what place or places the Court of Session shall hold its sitting;
but, until such order is made, the Courts of Session shall Hold their sittings
as heretofore.
(3) The
Provincial Government may also appoint Additional Sessions Judges and Assistant
,Sessions Judges to exercise jurisdiction in one or more such Courts.
(4) A
Sessions Judge of one sessions division may be appointed by the Provincial
Government to be also an Additional Sessions Judge of another division, and in
such case he may sit for the disposal of case at such place or places in either
division as the Provincial Government may direct.
(5) All
Courts of Session existing when this Code comes into force shall be deemed to
have been established under this Act.
10.
[Omitted by the Ordinance XXXVII of 2001dt.
11.
[Omitted by the Ordinance XXXVII of 2001 dt:
12.
Subordinate Magistrates:
(1) Provincial Government may appoint as many persons as it thinks fit to be
Magistrates of the first, second or third class in any district, from time to
time, define focal areas within which such persons may exercise all or any of
the powers, with which they may respectively be invested under this Code.
(2)
Local limits of their jurisdiction:
Except as otherwise provided by such definition, the jurisdiction and powers of
such persons shall extend throughout such district.
13.
[Omitted by the Ordinance XXXVII of 2001 dt:
14.
Special Judicial: (1)
The Provincial Government may, on the recommendation of the High Court, confer
upon any person including a former Executive Magistrate all or any of
the powers, conferred, or conferrable by or under this Code on a judicial
Magistrate in respect to particular cases or to a particular class or
particular classes of cases, or in regard to cases generally in any local area.
Words
ins. by Ordinance, XXXVII of 2001, dt.l3-8-2001.
(2) Such
Magistrates shall be called Special Judicial Magistrates and shall be appointed
for such term as the Provincial Government may, in consultation with the High
Court, by general or special order, direct.
Sec.
14 substituted by Item No.6 Punjab Notification No. SO(J-II) 1-8/75 (P-V),
dated 21.3.1996 for
Item
No. of
15.
Benches of Magistrates:
(1) The Provincial Government may direct any two or more 9[judicial
Magistrates] in any place to sit together as a Bench, an may by order invest
such Bench with any of the powers conferred.
or
conferable by or under this Code on a Magistrate of First, Second or Third
Class, and direct it to exercise such powers in such cases. or, such classes
only, and within such local limits, as the Provincial Government thinks fit.
(2)
Powers exercisable by Bench in absence of special direction: Except as otherwise provided by any
order under this section, every such Bench shall have the powers conferred by
this Code on a Magistrate of the highest class to which any one of its members,
who is present taking part in the proceedings as a member of the Bench,
belongs, and as far as practicable shall, for the purposes of this code, be
deemed to be a Magistrate of such class.
16.
Power to frame rules for guidance of Benches: The Provincial Government, may, from time to time make
rules consistent with this Code for the guidance of Magistrate, Benches in any
district respecting the following subjects:
(a) the
classes of cases to be tried;
(b) the
times and places of sitting;
(c) the
constitution of the Bench for conducting. Trials;
(d) the
mode of settling differences of opinion which may arise between the Magistrates
in session.
17.
Subordination of Magistrates and Benches to Sessions Judge: (1) all Magistrates appointed under
section 12, 13 and 14 and all Benches constituted under section 15, shall be
subordinate to the Sessions Judge and he may, from time to time, make rules or
give special orders consistent with this Code and any rules framed by the
provincial government under Section 16, as to the distribution of business
among such Magistrates and Benches.
(2) All
Executive Magistrates appointed under sections 13 and 14 shall be Subordinate
to the district Magistrate and he may, from time to time, make rules or give
social orders consistent with this Code and any rules framed by the Provincial
Government under section 16 as to the distribution of business among such
Magistrates.
(2-A)
Every Executive Magistrate (other than a Sub-Divisional Magistrate) in a
subdivision shall also be subordinate to the Sub-Divisional Magistrate,
subject, however to the general control of the District Magistrate.
Sub-sections
(1) and (2) subs. by Item No.9(I) of Punjab Notification No.SO(J-II) 1-8/75
((P-V), dated 21.3.1996 for
(3)
Subordination of Assistant Sessions Judges to Sessions Judge: All Assistant Sessions Judges shall be
subordinate to the Sessions Judge in whose Court they exercise jurisdiction,
and he may, from time to time, make rules consistent with this code as to the
distribution of business among such Assistant Sessions Judges.
(4) The
Sessions Judge; may, also when he himself is unavoidably absent or incapable of
acting, make provision for the disposal of any urgent application by an
additional or Assistant Sessions Judge and such judge shall have jurisdiction
to deal with any such application.
(5)
[Omitted by the Ordinance, XXXVII of 2001, dt: 13.8.2001].
D------Courts
of Presidency Magistrates.
18 to
21: Appointment of Presidency Magistrates, Benches, Local limites of
jurisdiction, Chief Presidency Magistrate: [Omitted by A.O., 1949, Sched.]
E.----Justices
of the Peace
22.
Justice of the peace for the mufassil:
Provincial Government, so far as regards the territories subject to its
Administration, may by notification in the official Gazette, appoint such
persons resident within Pakistan and not being the subjects of an foreign State
as it thinks fit to be Justices of the peace within and for the local area
mentioned in such notification.
22.
Appointment of Justices of the Peace: The
Provincial Government may, by notification in the official Gazette, appoint for
such period as may be ‘specified in the notification, and subject to such’
rules as may be made-by it any person who is a citizen of Pakistan and as to
whose integrity and suitability it satisfied to be a justice of the peace for a
local area to be specified in the notification, and more than one Justice of
the Peace may be appointed for the same local area.
22-A.
Powers of Justices of the Peace: A
Justice on the Peace for any local area shall, for the purpose of making an
arrest have within such area all the powers of a police officer referred to in
section 54 and an officer-in-charge of a police station referred to in section
55.
(2) A
Justice of the Peace making an arrest in exercise of any powers under
subsection (1) shall, forthwith, take or cause to be taken the person arrested
before the officer incharge of the nearest police station and furnish such
officer with a report as to the circumstances of the arrest and such officer
shall thereupon re-arrest the person.
(3) A
Justice of the Peace for any local area shall have powers, within such area, to
call upon any member of the police force on duty to aid him.
a) in
taking or preventing the escape of any person who has participated in the
commission of any cognizable offence or against whom a reasonable complaint has
been made or credible information has been received or a reasonable suspicion
exists of his having so participated; and
b) in
the prevention of crime in general and, in particular, in the prevention of a
breach of the peace or a disturbance of the public tranquility.
(4)
Where a member of the police force on duty has been called upon to render and
aid under sub-section (3), such call shall be deemed to have been made by a
competent authority.
(5) A
Justice of the Peace for any local area may, in accordance with such rules as
may be made by the Provincial Government,---
a) issue
a certificate as to the identity of any person residing within such area, or
b)
verify any document brought before him by any such person, or
c) attest
any such document required by or under any law for the time being in force to
be attested by a Magistrate, and until the contrary is proved, any certificate
so issued shall be presumed to be correct and any document so verified shall be
deemed to be duly verified, and any document so attested shall be deemed to
have been as fully attested as if he had been a Magistrate.
(6) An ex-officio Justice of
the Peace may issue appropriate directions to the police authorities concerned
on a complaint regarding--
(i) non-registration of a criminal case;
(ii) transfer of investigation from one police officer to another;
and
(iii) neglect, failure or excess committed by a police authority in
relation to its functions and duties.”
22-B.
Duties of Justices of the Peace:
Subject to such rules as may be made by the Provincial Government, every
Justice of the Peace for any local area shall:
a) on
receipt of information of the occurrence of any incident involving a breach of
the peace, or of the commission of any offence within such local area,
forthwith make inquiries into the matter and report in writing the result of
his inquiries to the nearest Magistrate and to officer incharge of the nearest
Police Station;
b) if
the offence referred to in clause (a) is a cognizable offence, also prevent the
removal of anything from, or the interference in any way with, the place of
occurrence of the offence;
c) when
so required in writing by a police officer making an investigation under
Chapter XIV in respect of any offence committed within such local area,---
i)
render all assistance to the police officer in making such an investigation;
ii)
record any statement made under expectation of death by a person in respect of
whom a crime is believed to have been committed.
23 and
24. [Rep. By Act (XII of 1923), Section 4]
25.
Ex-Officio Justices of the Peace: In
virtue of their respective officers, the judges of the High Court are Justices
of the Peace within and for whole of Pakistan, Sessions Judges 17[***] are Justices of the Peace within
and for the whole of the territories administered by the Provincial Government
under which they are serving.
F-----Suspension
and Removal
26 and
27. [Suspension and removal of Judges and Magistrates. Suspension and removal
of Justices of the Peace]: [Rep. by A.O. 1937].
_____________
CHAPTER
III
POWERS
OF COURTS
A----Descritpion
of offences cognizable by each Court.
28.
Offences under Penal Code: Subject
to the other provisions of this Code any offence under the Pakistan Penal Code
may be tried--
(a) by
the High Court, or
(b) by
the Court of Session, or
(c) by
any other Court by which such offence is shown in the eighth column of the
Second Schedule to be triable.
Proviso:
[Omitted by the Ordinance, XXXVII of 2001, dt.
29.
Offences under other laws: (1)
Subject to the other provisions of this Code, any offence under any other law
shall, when any Court is mentioned in this behalf in such law, be tried by such
Court.
(2) When
no Court is so mentioned, it may be tried by the High Court or subject as
aforesaid by any Court constituted under this Code by which such offence is
shown in the eighth column of the Second Schedule to be triable.
Proviso:
[Omitted by the Ordinance, XXXVII of 2001, dt.
29-A
[Omitted by (Act II of 1950).]
29-B.
Jurisdiction in the cases of juveniles: Any offence, other than one punishable with death or
imprisonment for life, committed by any person who at the date when he appears
or is brought before a Court is under the age of fifteen years, may be tried by
any Judicial Magistrate specially empowered by the Provincial Government to
exercise the powers conferred by Section 8, sub-section (1) of the Reformatory
School Act, 1897, or, in any area in which the said Act is not applicable, by
any other law providing for the custody, trial or punishment of youthful
offenders, by any Magistrate empowered by or under such law to exercise all or
any of the powers conferred thereby.
Section
29-B subs. by Item No.12 of Punjab Notification No.SO(J-II) 1-8/75(P.V), dated
21.3.1996 for
same
Item No. of Islamabad Notification No.S.R.O. 255(I)/96, dated 8.4.1996 for
[30.
Offences not punishable with death: Notwithstanding anything contained in Sections 28 and 29,
the Provincial Government may invest any Magistrate of the First Class with
power to try as a Magistrate all offences not punishable with death.]
Sec.
30 subs. by ordinance, XXXVII of 2001, dt: 13.8.2001.
B.---Sentences
which may be passed by Courts of various Classes.
31.
Sentences which High Court and Sessions Judges may pass: (1) High Court may pass any sentences
Authorised by law.
(2) A
Sessions Judge or Additional Sessions Judge may pass any sentence authorised by
law; but any sentence of death passed by any such Judge shall be subject to
confirmation by the High Court.
(3) An
Assistant Session Judge may pass any sentence authorised by law, except a
sentence of death or of imprisonment for a term exceeding seven years.
32.
Sentences which Magistrates may pass: (1)
The Courts of Magistrates may pass the following sentences namely:
a)
Courts of Magistrates of the First Class;
Imprisonment
for a term not exceeding three years including such solitary confinement as is
authorized by law;
Fine not
exceeding forty five thousand rupees; arsh’ daman whipping
b)
Courts of Magistrates of the Second class;
Imprisonment
for a term not exceeding one year including such solitary confinement as is
authorized by law;
Fine not
exceeding fifteen thousand rupees;
c)
Courts of Magistrates of the Third Class;
Imprisonment
for a term not exceeding one month;
Fine not
exceeding three thousand rupees.
(2) The
Court of any Magistrate may pass any lawful sentence, combining any of the
sentence which it is authorised by law to pass.
(3)
Whipping (if specially empowered):- [Rep. by the Whipping Act (IV 1909),
Section 8 & Sched,]
33.
Power of Magistrates to sentence to imprisonment in default of fine: (1) The Court of any Magistrate may
award such terms of imprisonment in default of payment of fine as is authorised
by law in case of such default:
Proviso
as to certain cases:
Provided that,---
(a) the
term is not excess of the Magistrate’s powers under this Code;
(b) in
any case decided by a Magistrate where imprisonment has been awarded as part of
the substantive sentence, the period of imprisonment awarded in default of
payment of the fine shall not exceed one-forth of the period of imprisonment
which such Magistrate is competent to inflict as punishment for the offence
otherwise than as imprisonment in default of payment of the fine.
(2) .The
imprisonment awarded under this section may be in addition to a substantive
sentence of imprisonment for the maximum term awarded by the Magistrate under
Section 32.
34.
Higher powers of certain:
The court of a Magistrate, specially empowered under Section 30, may pass any
sentence authorized by law, except a sentence of death or of imprisonment for a
term exceeding seven years.
34-A.
Sentence which courts and Magistrates may pass upon European British subjects:
[omitted by the Criminal law (Extinction of Discriminatory Privileges) Act,
1949(II of 1950), Sched.
35.
Sentence in case of conviction of several offences at one trial: (1) When a person is convicted at one
trial of two or more offences, the Court may, subject to the provisions of
section 71 of Pakistan Penal Code sentence him, for such offences, to the
several punishments prescribed therefore which such court is competent to
inflict; such punishments, when consisting of imprisonment 27[***} to commence
the one after the expiration of the other in such order as the court may
direct, unless the court directs that such punishments shall run concurrently.
(2) Maximum
term of punishment: In the case of consecutive sentences, sentences, it
shall not be necessary for the Court, by reason only of the aggregate
punishment for the several offences being in excess of the punishment which it
is competent to inflict on conviction of a single offence, to send the offender
for trial before a higher Court:---
Provided
as follows:---
(a) in
no case shall person be sentenced to imprisonment for a longer period than 14
years;
(b) if
the case is tried by a Magistrate 28[ ***], the aggregate punishment shall not
exceed twice the amount of punishment which he is, in the exercise of his
ordinary jurisdiction, competent to inflict.
(3) For
the purpose of appeal, the aggregate of consecutive sentence passed under this
section in case of conviction for several offences at one trial shall be deemed
to be a single sentences.
C---Ordinary
and Additional Powers
36.
Ordinary Powers of Magistrates:
All Magistrate have the powers hereinafter respectively conferred upon them and
specified in the Third Schedule. Such powers are called “their ordinary powers”.
37.
Additional powers conferrable on Magistrates: On the recommendations of the High
Court, the Provincial Government may, in addition to the ordinary powers,
invest any Magistrate with any powers specified in the Fourth Schedule.
Subs.
by Ordinance, XXXVII of 2001, dt.
38.
Control of District Magistrate’s inventing power: [Omitted by Ordinance, XXXVII
of 2001- dt.
D.—Conferment,
Continuance and Cancellation of Powers
39.
Mode of conferring powers: (1)
In conferring powers under this Code the Provincial Government may by order
empower persons specially by name, or in virtue of their office or classes or
officials generally by their official titles.
(2)
Every such order shall take effect from the date on which it is communicated to
the person so empowered.
40.
Powers of officers appointed: Whenever
any person holding an office in the service of Government who has been invested
with any powers; under this Code throughout any local area is appointed to an
equal or higher office, of the same, nature, within a like local area under the
same Provincial Government, he shall, unless the Provincial Government
otherwise directs, or has otherwise directed, exercise the same powers in the
local area in which he is so appointed.
41.
Withdrawal of Powers: The
Provincial Government may on the recommendations of the High Court, withdraw
all or any power conferred by it under this Code on any person or Magistrate.
Subs.
by Ordinance, XXXVII of 2001, dt.
PART
III
GENERAL
PROVISIONS
CHAPTER
IV
OF
AID AND INFORMATION TO THE MAGISTRATES, THE POLICE AND PERSONS MAKING ARRESTS
42.
Public when to assist Magistrates and Police: Every person is bound to assist a
Magistrate [Justice of the Peace] or police officer reasonably demanding
his aid,---
(a) in
the taking or preventing the escape of any other person whom such Magistrate;
or police officer is authorized to arrest;
(b) in
the prevention or suppression of a breach of the peace, or in the-prevention of
any injury attempted to be committed to any railway, canal, telegraph or public
property.
[Words
inserted by Item No. 21 of Punjab Notification No. SO (J-ll) 1-8/75 (P.V.),
dated
same
Item No. of Islamabad Notification No. S.R.O. 255(l)/96, dated
43.
Aid to person, other than police officer, executing warrant: When a warrant is directed to a person
other than a police officer, any other person may aid in the execution of such
warrant if the person to whom the warrant is directed be hear at hand and
acting in the execution of the warrant.
44.
Public to give information of certain offences: (1) Every person, aware of the
commission of or of [the intention of any other person to commit any offence
punishable under any of the following sections of the Pakistan Penal Code,
namely, 121,121-A, 122. 123.123-A. 124,124-A, 125, 126, 130, 143, 144, 145,
147, 148, 153-A, 161, 162, 163, 164, 165. 168, 170, 231, 232, 255, 302, 303,
304, 304,304-A, 364-A, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402. 435,
436, 449, 450, 456, 457, 458, 459, 460 and 489-A, shall, in the absence of
reasonable excuse, the burden of proving which shall lie upon the person so
aware, forthwith give information to the nearest Magistrate [Justice of the
Peace] or police officer of such commission or intention.
Words
subs- by Law Reforms Ordinance (XII of 1972).
Words
inserted by Item No. 22 (//) of Punjab Notification No. SO (J-ll) 1-8/75
(P.V.), dated
same
Item No of Islamabad Notification No. S.R.O. 255<1)/96, dated
(2) For
the purposes of this section the term “offence” includes any act committed at
any place out of
45-
Village Headman, accountant, landholders and others bound to report certain
matters: (1) Every
village headman, village accountant,; village watch man, village police
officer, owner or occupier of land, and the agent of any such owner or occupier
incharge of the management of that land and every officer employed in
the-collection of revenue or
rent of
land on he part of the Government or the Court of Wards, shall forthwith
communicate to the nearest Magistrate, {Justice of the Peace} or to the
officer incharge of the nearest police station whichever is the nearer, any
information which may possess respecting-
(a) the
permanent or temporary residence of any notorious receiver or vendor of stolen
property in any village of which he is headman, accountant, watch man or
police-officer or in which, he owns or occupies land, or is agent, or collects
revenue or rent;
(b) the
resort to any place within or the passage through such village of any person on
whom he knows or reasonably suspect to be a thug, robber, escaped convict or
proclaimed offender;
(c) the
commission of or intention to commit, in or near such village any non-boilable
offence or any offence punishable under Sections 143, 144, 145, 147 or 148 of
the Pakistan Penal Code;
(d) the
occurrence in or near such village of any sudden or unnatural death or of any
death under suspicious circumstances; or the discovery in or near such-village
of any corpse or part of a corpse. In circumstances which read to a reasonable
suspicion that such a death has occurred or the disappearance from such village
of any person in circumstances which lead to a reasonable suspicion that a
non-bailable offence has been committed in respect of such person;
Words
inserted by Item No. 23 of Punjab Notification No. SO(J-11) l-5/75 (P.V.),
dated
same
Item No. of Islamabad Notification No. S:RO. 255(1)/96, dated
(e) the
commission of or intention to commit, at any place out of Pakistan near such
village any act which, if committed in Pakistan, would be an offence punishable
under any of the following sections of the Pakistan Penal Code namely 231, 232,
233, 234. 235, 236, 237, 237, 238,302, 304, 382, 392, 393, 394, 395, 396, 397,
398, 399, 402, 435, 436, 449, 450, 457, 458, 459, 460, 489-A, 489-B, 489-C and
489-D;
(f) any
matter likely to affect the maintenance of order or the prevention of crime or
the safety of person or property, respecting which [any officer authorised by
the Provincial Government] by general or special order made with the previous
sanction of the Provincial Government, has directed him to communicate
information-
(2) In
this section-
(i) “village”
includes village –lands; and
(ii) the
expression “proclaimed offender” includes any person proclaimed as an offender
by any Court or authority established or continued by the Federal Government in
any part Of Pakistan, in respect of ,any Act which if committed in Pakistan,
would be punishable under any of the following sections of the Pakistan Penal
Code, namely, 302, 304, 362, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435,
436, 448, 450, 457, 458, 459and 460.
(3)
Appointment of village-headmen in certain cases for purposes of this section: Subject to rules in this behalf to be
made by the Provincial Government, the [District officer (Revenue)] from time
to time’ appoint one or more persons with his or their consent to perform the
duties of a village-headman under this section whether a village-headman has or
has not been appointed for that village under any other law.
Words
subs by Ordinance, XXXVIl of 2001, (dt.
CHAPTER
V
OFARREST,ESCAPE
AND RETAKING
A—Arrest
generally
46.
Arrest how made: (1) In
making an arrest the police officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there,
be a submission to the custody by word or action.
(2)
Restating endeavour to arrest: If
such person forcibly resists the endeavour to arrest him, or attempts to evade
the arrest, such police officer or other-person may use all means necessary to
effect the arrest.
(3)
Nothing in this section gives a right to cause the death of a person who is not
accused of an offence punishable with death or with [imprisonment for life].
Words
subs, by Criminal Procedure (Amendment) Act, XXV of 1974
47.
Search of place entered by person sought to be arrested: If any person acting under a warrant of
arrest, or any police-officer having authority to arrest, has reason to believe
that the person to be arrested has entered into, or is within any place, the
person residing in, or being in charge of such place shall, on demand of such
parson acting as aforesaid or such police-officer, allow him free ingress
thereto, and afford all reasonable facilities for a search therein.
48.
Procedure where ingress not obtainable: If ingress to such place cannot be obtained under Section
47 it shall be lawful in any case for a person acting under a warrant and in
any case in which a warrant may issue, but cannot be obtained without affording
the person to be arrested an bpportunity of escape, for a police officer to
enter such place and search therein; and in order to effect an entrance into
such place, to break, open any outer or inner or window of any house or place,
whether that of the person to be arrested or of any other person, if after
notification of his authority and purpose, and demand of admittance duly made,
he can not otherwise obtain admittance.
Breaking
open zenana: Provided
that, if any such place is an apartment in the actual occupancy of a woman (not
being the person to be arrested) who, according to custom, does not appear in
public such person or police-officer shall, before entering such apartment
notice to such woman that she is at liberty to withdraw and shall afford her
every reasonable facility for withdrawing, and may then break open the
apartment and enter it.
49.
Power to break open doors and windows for purposes of liberation: Any police officer or other person
authorized to make an arrest may break open any outer or inner door or window
of any house or place in order to liberate himself or any other person who,
having lawfully entered for the purpose of making an arrest, is detained
therein.
50.
No unnecessary restraint: The
person arrested shall not be subjected to more restraint than is necessary to
prevent his escape.
51.
Search of arrested persons: Whenever
a person is arrested by a police-officer under-a warrant which does not provide
for the taking of bail or under a warrant, which provides for the taking of
bail but the person arrested cannot furnish bail, and whenever a person is
arrested without warrant, or by a private person under a warrant, and cannot
legally be admitted to bail, or is unable to furnish bail.
The
officer making the arrest or, when the arrest is made by a private person, the
police officer to whom he makes over the person arrested, may search such
person and place in safe custody all articles, other than necessary wearing
apparel, found upon him.
52.
Mode of searching women: Whenever
it is necessary to cause a woman to be searched, the search shall be made by
another woman, with strict regard to decency.
53.
Power to seize offensive weapons: The
officer, or other person making any arrest under Code may take from the person
arrested any offensive weapons which he has about his person, and shall deliver
all weapons so taken to the Court or officer before which or whom the officer
or person making the arrest is required by this Code to produce the person
arrested.
B.—Arrest
without Warrant
54.
When police may arrest without warrant: (1) Any police-officer may, without an order from a
Magistrate and without a warrant arrest--
first,
any person who has been concerned in any cognizable offence or against whom a
reasonable complaint has been made or credible information has been received,
or a reasonable suspicion exists of his having been so concerned;
secondly,
any person having in his possession without lawful excuse, the burden of
proving which excuse shall lie on such person, any implement of house breaking;
thirdly,
any person who has been proclaimed as an offender either under this Code or by
order of the Provincial Government;
fourthly,
any person in whose possession anything is found which may reasonably be
suspected to be stolen property and who may reasonably be suspected of having
committed an offence with reference to such thing;
fifthly,
any person who obstructs a police-officer while in the execution of his duty,
or who has; escaped, or attempts to escape, from lawful custody ;
sixthly,
any person reasonably suspected of being a deserter from the armed forces of
seventhly,
any person who has been concerned in, or against whom a reasonable complaint
has been made or credible information has been received or a reasonable
suspicion exists of his having been concerned in, any act committed at any
place out of Pakistan, which, if committed in Pakistan, would have been
punishable as an offence and for which he is under any law relating to
extradition or otherwise liable to be apprehended or detained in custody in
Pakistan;
eighthly,
any released convict committing a breach of any rule made under Section 565,
sub-section (3);
ninthly,
any, person for whose arrest a requisition has been received from another
police officer, provided that the requisition specifies the person to be
arrested and the offence or other cause for which the arrest is to be made and
it appears therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.
(2)
[Omitted byA.0., 1949, Sch.].
55.
Arrest of vagabonds, habitual robbers, etc.: (1) Any officer Incharge of a police station may in like
manner, arrest or cause to be arrested--
(a) any
person found taking precautions to conceal his presence within the limits of
such station, under circumstances which afford reason to believe that he is
taking such precautions with a view to committing a cognizable offence; or
(b) any
person within the limits of such station who has not ostensible means of
subsistence, or who cannot give a satisfactory account of himself; or
(c) any
person who is by repute an habitual robber, house-breaker or thief, or an
habitual receiver of stolen property, knowing it to be stolen, or who by repute
habitually commits extortion or in order to the committing of extortion
habitually puts or attempts to put persons in fear of injury.
(a)
[Omitted by AO, 1949, Sch.]
56.
Procedure when police officer deputes subordinate to arrest without warrant: (1) When any officer incharge of a
police-station or any police-officer making an investigation under-Chapter XIV
requires any officer subordinate, to him to arrest without a warrant (otherwise
than in his presence) any person who may lawfully, be arrested without a
warrant, he shall deliver to the officer required to make the arrest, an order
in writing, specifying the person to be arrested and the offence or other cause
for which the arrest is to be made. The officer so required shall, before
making the arrest, notify to the person to be arrested the substance of the
order and, if so required by such person, shall show him the order.
(2)
[Omitted by the AO., 1949, Sch.]
57.
Refusal to give name and residence: (1)
When any person who in the presence of a police-officer has committed or has
been accused of committing a non-cognizable offence refuses, on demand of such
officer, to give his name and residence or gives a name or residence which such
officer has reason to believe to be false, he may be arrested by such officer
in order that his name or residence may be ascertained.
(2) When
the true name and residence of such person have been ascertained, he shall be
released on his executing a bond, with or without sureties to appear before a
Magistrate [having jurisdiction] if so required:---
Provided
that, if such person is not resident in
(3)
Should the true name and residence of such person be not ascertained within
twenty four hours from the time of arrest or should he fail to execute the bond
or, if so required to furnish sufficient sureties, he shall forthwith be
forwarded to the nearest Magistrate having jurisdiction.
Words
inserted by Law Reforms Ordinance, XII of 1972.
58.
Pursuit of offenders into other jurisdiction: A police-officer may, for the purpose of
arresting without warrant any person whom he is authorized to arrest under this
Chapter pursue such person into anyplace in
[Explanation:
In this section, ‘‘‘police-officer’ includes a police-officer acting under this
Code as in, force in Azad Jammu and
Explanation
added by Code of Criminal Procedure (Amendment) Act, VIII of 1993
59.
Arrest by private persons and procedure on such arrest: (1) Any private person may arrest any
person who in his view commits a non-bailable and cognizable offence, or any
proclaimed offender, and without unnecessary delay, shall make over any person
so arrested to a police-officer or, in the absence of a police-officer, take
such person or cause him to be taken in custody to the nearest police-station.
(2) If
there is reason to believe that such person comes under the provisions of
Section
(3) If
there is reason to believe that he has committed a non-cognizable offence, and
he refuses on the demand of a police officer to give his name and residence, or
gives a name or residence, which such officer has, reason to believe to be
false, he shall be dealt with under the provisional Section 57. If there is no
sufficient reason to believe that he has committed any offence; he shall be at
once released.
60.
Person arrested to be taken before Magistrate or officer incharge of police
station: A police
officer making an arrest without warrant shall, without unnecessary delay and
subject to the provisions herein contained as to bail, take or send the person
arrested before a Magistrate having jurisdiction in the case or before the
officer incharge of a police-station.
61.
Persons arrested not to be detained more than twenty-four hours: No police officer shall detain in
custody a person arrested without warrant for period longer than, under all the
circumstances of the case is reasonable and such period shall not, in the
absence of a special order of a Magistrate under Section -167 exceed
twenty-four hours exclusive of the time necessary for the journey from the
place of arrest to the Magistrate’s Court.
62.
Police to report apprehensions: Officers
incharge of police-stations shall report to the [Zila Nazim, District
Superintendent of Police and District Public Safety Commission, set up under
the Police Act, 1861 (V of 1861), simultaneously] , the cases of all
persons arrested without warrant, within the limits of their respective
stations, whether such persons have been admitted to bail or otherwise:---
[Provided
that in the application of this sectionto the districts where the local
Government elections have not been held or the Zila-Nazim has not assumed
charge of office, any reference in this section to the Zila Nazim shall be read
as a reference to the District Coordination Officer in relation to such
districts:---
Provided
further that the aforesaid proviso shall cease to have effect and shall be
deemed to have been repealed at the time when Local Governments are installed
in the districts As aforesaid.]
Substituted
by Ordinance XXXVII of 2001, dt. 13.8.2001
Proviso
added by Ordinance XLIII of 2001, dt. 29.8.2001
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.
64.
Offence committed in Magistrate’s presence: When any offence is committed in the presence of a
Magistrate within the local limits of his jurisdiction he may himself arrest or
order any person to arrest the offender and may thereupon, subject to the
provisions herein contained as to bail commit the offender to custody.
65.
Arrest by or in presence of Magistrate: Any Magistrate may at any time arrest or direct the arrest,
in his presence, within the local limits of his jurisdiction, of any person,
for whose arrest he is competent at the time and in the circumstances to issue
a warrant.
66.
Power, on escape, to pursue and retake: If a person in lawful custody escapes or is rescued the
person from whose custody he escaped or was rescued may immediately pursue and
arrest him in any place in Pakistan.
67.
Provisions of Sections 47, 48 and 49 to apply to arrest under Section 66: The provisions of Sections 47, 48 and 49
shall apply to arrests under Section 66, although the person making any such
arrest is not acting under a warrant and is not a police-officer having
authority to arrest.
CHAPTER
VI
OF
PROCESSES TO COMPEL APPEARANCE
A
-----Summons
68.
Form of summons: (1)
Every summons issued by a Court under this Code shall be in writing in
duplicate, signed and sealed by the presiding officer of such Court or by such
other officer as the High Court may, from time to time, by rule, direct.
(2)
Summons by whom served: Such
summons shall be served by a police officer, or subject to such rules as the
Provincial Government may prescribe in this behalf by an officer of the Court
issuing, it or other public servant:---
[provided
that the Court may, at the request of the complainant or the accused, allow him
to serve the summons on his own witnesses.]
(3)
[Omitted by A.O., 1949, Sch.]
Proviso
added by Law Reforms Ordinance. 1972.
69.
Summons how served: (1)
The summons shall, if practicable, be served personally on the person summoned,
by delivering or tendering to him one of the duplicates of the summons.
(2)
Every person on whom a summon is to be served shall sign a receipt thereof on
the back of the other duplicate.
(3)
Signature of receipt for Summons: Service
of a summons on an incorporated company or other body corporate may be effected
by serving it on the secretary, local manager or other, principal officer of
the corporation or by registered, post letter addressed to the chief officer of
the corporation in Pakistan, to such case the service shall be deemed to have
been effected when the letter would arrive in ordinary course of post.
70.
Service when person summoned cannot be found: Where the person summoned cannot by the
exercise of due diligence be found the summons may be served by leaving one of
the duplicates for him with some adult male member of his family, and the
person with whom the summons is so left shall, if so required by the serving
officer, sign a receipt therefore on the back of the other duplicate.
71.
Procedure when service cannot be effected as before provided: If service in the manner mentioned in
Sections 69 and 70 cannot by the exercise of due diligence be effected, the-serving
officer shall affix one of the duplicates of the summons to some conspicuous
part of the house or homestead in which the person summoned ordinarily resides;
and thereupon the summons shall be deemed to have been duly served.
72.
Service on servant of, State or of Railway Company: (1) Where the person summoned is in the
active service of the State or of a Railway Company, the Court issuing the
summons shall ordinarily send it in duplicate to the head of the office in
which such person is employed, and such head shall thereupon cause the summons
to be served in manner provided by Section 69, and shall return it to the Court
under his signature with the endorsement required by that section.
(2) Such
signature shall be evidence of due service.
73.
Service of summons outside local limits: When a Court desires that a summons issued by it shall be
served at any place outside the local limits of its jurisdiction, it shall
ordinarily send such summons in duplicate to a Magistrate within the local
limits of whose jurisdiction the person summoned resides or is to be there
served.
74.
Proof of service in such cases and when serving officer not present: (l) When a summons issued by a Court is
served outside the local limits of its jurisdiction, and in any case where the
officer who has served a summons is not present at the hearing of the case, an
affidavit, purporting to be made before a Magistrate, that such summons has
been served, and a duplicate of the summons purporting to be endorsed (in
manner provided by section 69 and section 70) by the person to whom it was
delivered or tendered or with whom it was left, shall be admissible in
evidence, and the statements made therein shall be deemed to be correct unless
and until the contrary is proved.
(2) The
affidavit mentioned in this section may be attached to the duplicate of the
summons and returned to the Court.
B.---Warrant
of Arrest
75.
Form of warrant of arrest: (1)
Every Warrant of arrest Issued by a Court under this Code, shall be in writing,
signed by the presiding officer, or in the case of a Bench of Magistrates, by
any member of such Bench and shall bear the seal of the Court.
(2)
Continuance of warrant of arrest: Every
such warrant shall remain in force until cancelled by the Court which issued
it, or until it is executed.
76.
Court may direct security to be taken: Any Court issuing a warrant for the arrest of any person
may in its discretion direct by endorsement on the warrant that, if such person
execute a a bond with sufficient sureties for his attendance before the court
at a specified time and thereafter, until otherwise directed by the Court, the
officer to the warrant is directed shall take such security and shall release
such person from custody.
(2) The
endorsement shall state--
(a) the
number of sureties.
(b) the
amount in which they and the person for whose arrest the warrant is issued,
are to be respectively bound; and
(c) the
time at which he is to attend before the Court.
(3)
Recognizance to be forwarded: Whenever
security is taken under this section the officer to whom the warrant is
directed shall forward the bond to the Court. -
77.
Warrants to whom directed:
(1) A warrant of arrest shall ordinarily be directed to one or more
police-officers, but any Court issuing such a warrant may, if its immediate
execution is necessary and, no .police-officer is immediately available, direct
it to any other person or persons, and such person or persons shall execute the
same.
(2)
Warrants to several persons: When
a warrant is directed to more officers or persons than one, it may be executed
by all, or by any one or more, of them.
78.
Warrant may be directed to landholders, etc.: (1) A [Magistrate of the First Class]
may direct a warrant to any landholder, farmer or manager of land within
the district or sub-division for the arrest of any escaped convict, proclaimed
offender or person who has been accused of a non-bailable offence, and who has
eluded pursuit.
(2) Such
landholder farmer or manager shall acknowledge in writing the receipt of the
warrant, and shall execute it if the person for whose arrest it was issued is
in, or enters on, his land or farm of the land under his charge.
(3) When
the person against whom such warrant is issued is arrested, he shall be made
over with the warrant to the nearest police-officer, who shall cause him to be
taken before a Magistrate having Jurisdiction in the case, unless security is
taken under Section 76.
Subs.
by Ordinance, XXXVII of 2001, dt.
79.
Warrant directed to police officer: A
warrant directed to any police officer may also be executed by any other police
officer whose name is endorsed upon the warrant by the officer to whom it is
directed or endorsed.
80.
Notification of substance of warrant: The
police officer or other person executing a warrant of arrest shall notify the
substance thereof to the person to be arrested, and if so required, shall show
him the warrant.
81.
Person arrested to be brought before Court without delay: The police officer or other person
executing a warrant of arrest shall (subject to the provisions of Section 76 as
to security) without unnecessary, delay bring the person arrested before the
Court before which he is required by law to produce such person.
82.
Where warrant may be executed: A
warrant of arrest may be executed at any place in
[Explanation:
In this section, “warrant of arrest” includes a warrant of arrest issued
underthis Code as in force in Azad Jammu and
Explan.
added by Code of Criminal Procedure (Amendment) Act. Vlll of 1993.
83.
Warrant forwarded for execution outside jurisdiction: (1) When a warrant is to be executed
outside the local limits of the jurisdiction of the Court issuing the same such
Court may, instead of directing such warrant to a police-officer, forward the
same by post or otherwise to any Magistrate or District Superintendent of
Police within the local limits of whose jurisdiction it is to be executed.
(2) The
Magistrate or District Superintendent to whom such warrant is so forwarded
shall endorse his name thereon and, if practicable, cause it to be executed in
manner hereinbefore provided within the local limits of his jurisdiction.
84.
Warrant directed to police-officer for execution outside jurisdiction: (1) When a warrant directed to a
police-officer is to be executed beyond the locate limits of the jurisdiction
of the Court issuing the same, he shall ordinarily take it for endorsement
either to a Magistrate or to a police-officer not below the rank of an
officer-in-charge of a police station, within the local limits of whose
jurisdiction the warrant is to be executed.
(2) Such
Magistrate or police officer shall endorse his name thereon, and such
endorsement shall be sufficient authority to the police-Officer to whom the
warrant is directed to execute the same within such limits, and the local
police shall, if so required, assist such officer in executing such warrant.
(3)
Whenever there is reason to believe that the delay occasioned by obtaining the
endorsement of the Magistrate or police-officer within the local limits of whose
jurisdiction the warrant is to be executed, will prevent such execution, the
police-Officer to whom it is directed may execute the same without such
endorsement ^h any place beyond the local limits of the jurisdiction of the
Court which issued it.
(4)
[Omitted by. A.O., 1949].
85.
Procedure on arrest of person against whom warrant issued: When a warrant of arrest is executed
outside the district in which it was issued, the person arrested shall, unless
the Court which issued the warrant is within twenty miles of the place of
arrest or is nearer than the Magistrate or District Superintendent of Police
within the focal limits of whose jurisdiction the arrest was made, or unless
security is taken under Section 76, be taken before such Magistrate or District
Superintendent.
86.
Procedure by Magistrate before whom person arrested is brought: (1) Such Magistrate or District
Superintendent shall, if the person arrested appears to be the person intended
by the Court which issued the warrant, direct his removal in custody to such
Court,---
Provided
that, if the offence is bailable, and such person is ready and willing to give
bail to the satisfaction of such Magistrate, or District Superintendent or a
direction has been endorsed under Section76 on the warrant and such person is
ready and willing to give the security required by such direction, the
Magistrate, or District Superintendent shall take such bail or security as the
case may be, and forward the bond to the Court which issued the warrant:---
[provided
further that, if the offence is not bailable or no direction has been: endorsed
under Section 76 on the warrant, the Sessions .Judge of the sessions division
in which the person is arrested may, subject to the provisions of Section 497
and for sufficient reasons, release, the person on an interim bail on such bond
or security, as the Sessions Judge thinks fit and direct the person to appear
by a specified date before the Court which issued the warrant and forward the
bond to that Court]
2nd
Proviso added by Law Reforms Ordinance, XII of 1972
(2)
Nothing in this section shall be deemed to prevent a police-officer from taking
security under Section 76.
[86-A.
Procedure for removal in custody to Tribal Areas: Where a person, arrested under Section
85 is to be removed in custody to, any place in the Tribal Areas, he shall be
produced before a Magistrate within the local limits of whose jurisdiction the
arrest was made, and such Magistrate in directing the removal shall hear the
case in the same manner and have the same jurisdiction and powers, as nearly as
may be, including the powers to order the production of evidence, as it the
person arrested were charged with an offence committed within the jurisdiction
of such Magistrate, and such Magistrate shall direct the removal of the
arrested person in custody if he is satisfied that the evidence produced before
him raises a strong or probable presumption that the person arrested committed
the offence mentioned in the warrant.
Section
86-A added by Law Reforms Ordinance, XII of 1972.
C.—Proclamation
and Attachment
87.
Proclamation for person absconding: (1)
If any Court is satisfied after taking evidence that any person against whom a
warrant has been issued by it has absconded or is concealing himself so that
such warrant cannot be executed, such Court may publish a written proclamation
requiring him to appear at a specified place and at a specified time not less
than thirty days from the date of publishing such proclamation.
(2) The
proclamation shall be published as follows:
(a) it
shall be publicly read in some conspicuous place of the town or village in
which such person ordinarily resides;
(b) it
shall be affixed to some conspicuous part of the house or homestead in which
such person ordinarily resides or to some conspicuous place of such town or
village; and
(c) a
copy thereof shall be affixed, to some conspicuous part of the Court-house.
(3) A
statement in writing by the Court issuing the proclamation to the “effect that
the proclamation was duly published on a specified day shall be conclusive
evidence that the requirements of this section have been complied with and that
the proclamation was published on such day.
88.
Attachment of property of person absconding: (1) The Court issuing a proclamation under Section 87 may at
any time order the attachment of any property, movable or immovable or both,
belonging to the proclaimed person.
(2) Such
order shall authorize the attachment of any property belonging to such person
within the district in which it is made and it shall authorise the attachment
of any property belonging to such person without such district when endorsed by
the [Sessions Judge] within whose district such property is situated.
(3) If
the property ordered to be attached is a debt or other movable property, the
attachment under this section shall be made—
(a) by
seizure; or
(b) by
the appointment of a receiver; or
(c) by
an order in writing prohibiting the delivery of such property to the proclaimed
person
or to
any one on his behalf; or
(a) by
all or any two of such methods, as the Court thinks fit.
(4) if
the property ordered to be attached is immovable, the attachment under this
section shall, in the case of land-paying revenue to the Provincial Government,
be made through the [District Officer (Revenue)] in which the land is
situated, and in all other cases--
(e) by
taking possession; or
(f) by
the appointment of a receiver; or
(g) by
an order in writing prohibiting the payment of rent or delivery of property to
the proclaimed person or to any one on his behalf; or
(h) by
all or any two of such methods, as the Court thinks fit.
(5) If
the property ordered to be attached consists of livestock or is of a perishable
nature, the Court may, if it thinks it expedient, order immediate sale thereof,
and in such case the proceeds of the sale shall abide, the order of the Court.
(6) The
powers, duties and liabilities of a receiver appointed under this section shall
be the same as those of a receiver appointed under Order XL of the Code of
Civil Procedure, 1908.
(6-A) If
any claim is preferred to or objection made, to the attachment of any property
attached under this section within six months from the date of such attachment,
by any person other than the proclaimed person, on the ground that the claimant
or objector has an interest in such property, and that such interest is not
liable to attachment under this section, the claim or objection shall be
inquired into, and may be allowed or disallowed in whole or in part:---
Provided
that any claim preferred or objection made within the period allowed by this
subsection may, in the event of the death of the claimant or objector, be
continued by his legal representative.
(6-B)
Claims or objections under sub-section (6-A) may be preferred, or made in the
Court by which the order of attachment is issued or, if the claim or objection
is in respect of property attached under an order endorsed by a [Sessions
Judge] in accordance with the provisions of sub-section (2) in the Court of
such Magistrate.
(6-C)
Every such claim or objection shall be inquired into by the Court [or
Magistrate] in which it is preferred or made.
Proviso:
[Omitted by Ordinance, XXXVII of 2001, dt.
(6-D)
Any person whose claim or objection has been disallowed in whole or in part by
an order under sub-section (6-A) may within a period of one year from the date
of such order, institute a suit to establish the right which he claims in
respect of the property in dispute; but subject to the result of such suit, if
any, the order shall be conclusive.
(6-E) If
the proclaimed person appears within the time specified in the proclamation,
the Court shall make an order releasing the property from the attachment.
(7) If
the proclaimed person does not appear within the time specified in the
proclamation, the property under attachment shall be at the disposal of the
Provincial Government but it shall not be sold until the expiration of Six
months from the date of the attachment and until any claim preferred or
objection made under sub-section (6-A) has been disposed of under that
sub-section, unless if is subject to speedy and natural decay, or the Court
considers that the sale would be for the benefit of the owner, in either of
which cases the Court may cause it to be sold whenever it thinks fit.
Subs./ins.
by Ordinance, XXXVII of 2001, dt.
89.
Restoration of attached property: If
within two years from the date of the attachment, any person, whose property is
or has been at the disposal of Provincial Government, under sub-section (7) of
Section 88 appears voluntarily or is apprehended and brought before the Court
by whose order the property was attached; or the Court to which such Court is
subordinate, and proves to the satisfaction of such Court that he did not
abscond or conceal himself for the purpose of avoiding, execution of the
warrant and that he had not such notice of the proclamation as to enable him to
attend within the time specified therein, such property or, if the same has
been sold, the net proceeds of the sale, or, if part only thereof has been
sold, the net proceeds of the sale and the residue of the property, shall after
satisfying thereout all costs incurred in consequence of the attachment, be
delivered to him.
D.—Other
Rules regarding Processes
90.
Issue of warrant in lieu of, or in addition to summons:
(a) if,
either before the issue, of such summons, or after the issue of the same but
before the time fixed for his appearance, the Court sees reasons to believe
that he has absconded or will not obey the summons; or
(b) it
at such time he fails to appear and the summons is proved to have been duly
served in time to admit of his appearing in accordance therewith and no
reasonable excuse is offered for such failure.
91.
Power to take bond for appearance: When
any person for whose appearance or arrest the officer presiding in any Court is
empowered to issue a summons or warrant, is present in such Court, such officer
may require such person to execute a bond, with or without sureties, for his
appearance in such Court.
92.
Arrest by breach of bond for appearance: When any person who is bound by any bond taken under this
Code to appear before a Court does not so appear, the officer presiding in such
Court may issue a warrant directing that such person be arrested and produced
before him.
93.
Provisions of this Chapter generally applicable to summons and warrants of
arrest: The provisions
contained in this Chapter relating to a summons and warrant, and their issue,
service and execution, shall, so far as may be, apply to every summons and
every warrant of arrest issued under this Code.
E
— Special Rules regarding processes issued for service or execution outside
[93-A.
Sending of summons for service outside Pakistan: (1) Where a Court in
Pakistan desires that a summons issued by it to an accused person shall be
served at any place outside Pakistan within the local limits of the
jurisdiction of a Court established or continued by the authority of the
Federal Government in exercise of its foreign jurisdiction it shall send such
summons, in duplicate, by post or otherwise, to the presiding officer of that
Court to be served.
(2)
The provisions of Section 74 shall apply in the case of a summons sent for
service under this section as if the presiding officer of that Court to whom it
was sent were a Magistrate in
93-B.
Sending of warrants for execution outside Pakistan: Notwithstanding anything contained in
Section 82, where a Court in Pakistan desires that a warrant, issued by it for
the arrest of an accused person shall be executed at any place outside Pakistan
within the local limits of the jurisdiction of a Court established or continued
by the authority of the Federal Government in exercise of its foreign
jurisdiction, it may send such Warrant, by post or otherwise, to the presiding
officer of that Court to be executed.
93-C.
Service and execution in Pakistan of processes received from outside Pakistan: (1) Where a Court has received for
service or execution a summons to, or a warrant for the arrest of, an accused
person issued by a Court established or continued by the authority of the
Federal Government in exercise of its foreign jurisdiction, outside Pakistan it
shall cause the same to be served or executed as if it were a summons or warrant
received by it from a Court in Pakistan for service or execution within the
local limits of its jurisdiction-
(2)
Where any warrant of arrest has been so executed the person arrested shall so
far as possible be dealt with in accordance with the procedure prescribed by
Sections 85 and 86.]
Sections
93-A--93-C added by Code of Criminal Procedure (Amendment) Act. XIV of 1914.
CHAPTER
VII
OF
PROCESSES TO COMPEL THE PRODUCTION OF DOCUMENTS AND OTHER MOVABLE PROPERTY AND
FOR THE DISCOVERY OF PERSONS WRONGFULLY CONFINED
A—Summons
to produce
94.
Summons to produce document or other thing: (1) Whenever any Court, or, any officer incharge of a
police-station considers that the production of any document or other thing is
necessary or desirable for the purposes of any investigation, inquiry, trial or
other proceeding under this Code by or before such Court or officer, such Court
may issue a summons, or such officer a written order, to the person in whose
possession or power such document or thing is believed to be, requiring him to
attend and produce it or to produce it, at the time and place stated in the
summons or order:---
Provided
that no such officer shall issue any such order requiring the production of any
document or other thing which is in the custody of a bank or banker as defined
in the Banker’s Books Evidence Act, 1891 (XVII of 1891), and relates, or might
disclose any information which relates to the bank account of any person except,---
(a) for
the purpose of investigating an offence under Sections 403, 406, 408 and 409
and Sections 421 to 424 (both inclusive) and Sections 465 to 477-A (both
inclusive) of the Pakistan Penal Code, with prior permission in writing of a
Sessions Judge; and
(b) in
other cases, with the prior permission in writing of the High Court.
(2) Any
person required under this section merely to produce a document or other thing
shall be deemed to have complied with the requisition if he causes such
document or thing to be produced instead of attending personally to produce the
same.
(3)
Nothing in this section shall be deemed to affect the Evidence Act, 1872,
Sections 123 and 124, or to apply to a letter, postcard, telegram or other
document or any parcel or thing in the custody of the Postal or Telegraph
Authorities.
95.
Procedure as to letters and telegrams: (1) If any document, parcel or thing in such custody is, in
the opinion of any Magistrate, High Court or Court of Session wanted for the
purpose of any investigation, inquiry, trial or other proceeding under this
Code, such Magistrate or Court may require the Postal or Telegraph Authorities,
as the case may be, to deliver such document, parcel or thing to such person as
such Magistrate or Court directs.
(2) If
any such document, parcel or thing is, in the opinion of any Other Magistrate,
or District Superintendent of Police wanted for any such purpose he may require
the Postal or Telegraph Department, as the case may be, to cause search to be
made for and to detain such document, parcel or thing pending the orders of any
such Court.
B.
—Search-warrants
96.
When search warrant may be issued: (1)
Where any Court has reason to believe that a person to whom a summons or order
under Section 94 or a requisition under Section 95, sub-section (1), has been
or might be addressed, will not or would not produce the document or thing as
required by such summons or requisition, or where such document or thing is not
known to the Court to be in the possession of any person, or where the Court
considers that the purposes of any inquiry, trial or other proceedings under
this Code will be served by a general search or inspection, it may issue a
search-warrant; and the person to whom such warrant is directed, may Search or
inspect in accordance therewith and the provision hereinafter contained,
[Omitted
by the Ordinance XXXVII of 2001, dt. 13.8.2001]
97.
Power to restrict warrant: The
Court may, if it thinks fit, specify in the warrant the particular place or
part thereof to which only the search or inspection shall extend; and the
person charged with the execution of such warrant shall then search or inspect
only the place or part so specified.
98.
Search of house suspected to contain stolen property, forged documents, etc.: (1) If a Magistrate of the First Class,
upon information and after such inquiry as he thinks necessary, has reason to
believe that any place is used for the deposit or sale of stolen property, or
for the deposit or sale or manufacture of forged documents, false seals or
counterfeit stamps, [bank notes, currency notes] or coins or instruments
or materials for counterfeiting coin or stamps, [bank notes or currency
notes] for forging,
or that
any forged documents, false seals or counterfeit stamps, [bank notes,
currency notes] or coins, or instruments or materials for counterfeiting
coins or Stamps or [bank notes. currency notes] for forging, are kept or
deposited in any place,
or for
the deposit, sale, manufacture or production of any obscene object such as is
referred to in Section 292 of the Pakistan Penal Code or that any such obscene
objects are kept or deposited in any place; he may by his warrant authorize any
police-officer above the rank of a constable-
(a) to
enter with such assistance as may he required, such place, and
(b) to
search the same in manner specified in the warrant, and,
(c) to
take possession of any property, document, seals, stamps or [bank notes,
currency notes] or coins therein found which he reasonably suspects to be
stolen, unlawfully obtained, forged, false or counterfeit and also of any such
instruments and material or of any such obscene objects as aforesaid, and
(d) to
convey such property, documents, seals, stamps, [bank notes, currency
notes], coins, instruments or materials or such obscene objects before a
Magistrate, or to guard the same on the spot until the offender is taken before
a Magistrate or, otherwise to dispose thereof in some place of safety and,
(e) to
take into custody and carry before a Magistrate every person, found in such
place” who appears, to have been privy to the deposit, sale or manufacture or
keeping of any such property, documents, seals, stamps, 3o[bank notes, currency
notes], coins, instruments or materials or such obscene objects knowing or
having reasonable cause to suspect the said property to have been stolen or
otherwise unlawfully obtained or the said documents, seals, stamps, [bank
notes, currency notes], coins, instruments or materials to have been
forged, falsified or counterfeited, or the said instruments or materials to
have been or to be intended to be used for counterfeiting coin or stamps,
[bank notes, currency notes] or for forging or the said obscene objects to
have been or to be intended to be sold, let to hire, distributed, publicly
exhibited, circulated, imported or exported.
(2) The
provisions of this section with respect to,---
(a)
counterfeit coin,
(b) coin
suspected to be counterfeit, and
(c)
instruments or materials for counterfeiting coin, shall so far as they can be
made applicable, apply respectively to;
(a)
pieces of metal made in contravention of the Metal Tokens Act, 1889, or brought
into Pakistan in contravention of any notification for the time being in force
under Section 16 of the Customs Act, 1969;
(b)
pieces of metal suspected to have been so made or to have been so brought, into
Pakistan or to be intended to be issued in contravention of the former of those
Acts, and
(c)
instruments or materials for making pieces of metal in contravention of that
Act.
Words
subs. by Law Reforms Ordinance, (XII of 1972)
99.
Disposal of things found in search beyond jurisdiction: When, in the execution of a
search-warrant at any place beyond the local limits of the jurisdiction of the
Court which issued the same any of the things for which search is made are
found, such things together with the list of the same, prepared under the
provisions hereinafter contained, shall be immediately taken before the Court
issuing the warrant unless such place is nearer to the Magistrate having
jurisdiction herein than to such Court, in which case the list and things shall
be immediately taken before such Magistrate; and unless there be good cause to
the contrary, such Magistrate shall make an order authorizing them to he taken
to such Court.
99-A.
Power to declare certain publications forfeited and to issue search-warrants
for the same: (1)
Where,---
(a) any
newspaper, or book as defined in the [
(b) any
document, wherever printed, appears to the Provincial Government to contain any
treasonable or seditious matter or any matter which is prejudicial to national
integration or any matter which promotes or is intended to promote, feelings of
enmity or hatred between different classes of the citizens of Pakistan or which
is deliberately and maliciously intended to outrage the religious feelings of
any such class, by inputting the religion or religious belief of that class,
[or any matter, of the nature referred 1to in clause (ii) of sub-section (1) of
Section 24 of the West Pakistan Press and Publication Ordinance,1963] that
is to say, any matter the publication of which is punishable under Section
123-A or Section 124-A-or Section 154-A or Section 295-A [or Section 298-A
or Section 298-B or Section 298-C] of the Pakistan Penal Code, the
Provincial Government may, by notification in the official Gazette stating the
grounds of its opinion, declare every copy of the issue of the newspaper
containing such platter and every copy of such book or other document to be forfeited
to Government ,and thereupon any police-officer may seize the same wherever
found in Pakistan and any Magistrate may by warrant authorize any
police-officer not below the rank of sub-Inspector to enter upon and search for
the same in any premises where any copy of such issue or any such book or other
document may be reasonably suspected to be(
2) In
sub-section (1) “document” includes also any painting, drawing or photograph,
or other visible representation.
Substituted
by Law Reforms Ordinance (XlI of 1972).
Inserted
by Anti-Islamic Activities of Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment)
Ordinance
(XX of 1984).
33.
Inserted by Anti-Islamic Activities of Quadiani Group, Lahori Group and Ahmadis
(Prohibition and Punishment) Ordinance (XX of 1984),
99-B.
Application to High Court to set aside order of forfeiture: (1) Any person having any interest in
any newspaper, book or other document, In respect of which an order of
forfeiture has been made under Section 99-A [or any other law for the time
being in force] may, within two months from the date of such order, apply,
to the High Court to set aside such order on the ground that the issue of the
newspaper, or the book or other document in respect of which the order was
made, did not contain any treasonable or seditious or other matter of such a
nature as is referred to in sub-section (1) of Section 99-A.
[(2)
Nothing in subsection (1), shall apply to a case where the order of forfeiture
has been made--
(a)
in respect of a newspaper, book or other document printed outside
(b}
in respect of a newspaper, book or other document on the conviction in respect
of such newspaper, book or other document, of the author or editor thereof for
any of the offences referred to in sub-section (1) of Section 99-A.]
99-C.
[Omitted by Law Reforms Ordinance, XII of 1972].
99-D.
Order of [High Court] setting aside forfeiture: (1) On receipt of the application, the [High
Court] shall, if it is not satisfied that the issue of the newspaper, or
the book or other document, in respect of which the application has been made,
contained treasonable or seditious or other matter of such a nature as is
referred to in sub-section (1) of Section 99-A, set aside the order of
forfeiture.
(2)
[Omitted by Law Reforms Ordinance, XIl of 1972].
Words
inserted/substituted by Law Reforms Ordinance (XII of 1972).
99-E.
Evidence to prove nature or tendency of newspaper: On the hearing of any such application
with reference to any newspaper, any copy of such newspaper may be given in
evidence in aid of the proof of the nature or tendency of the words, signs or
visible representations contained in such newspaper, in respect or which the
order of forfeiture was made.
99-F.
Procedure in High Court: Every
High Court shall as soon as conveniently may be, frame rules to regulate the
procedure in the case of such applications, the amount of the costs thereof and
the execution of orders passed thereon, and until such rules are framed, the
practice of such Courts in proceedings other than suits and appeals shall
apply, so far as may be practicable to such applications.
99-G.
Jurisdiction barred: No
order passed or action taken under Section 99-A shall be called in question in
any Court otherwise than in accordance with the provisions of Section 99-B.
C.—Discovery
of persons wrongfully confined
100.
Search for persons wrongfully confined: If any Magistrate of the First Class has reason to believe
that any person is confined under such circumstances that the confinement
amounts to an offence, he may issue a search warrant, and the person to whom
such warrant is directed may search for the person so confined; and such search
shall be made in accordance therewith, and the person, if found, shall be
immediately taken before a Magistrate, who shall make such order as in the
circumstances of the case seems proper.
D.
-Genera/ Provisions relating to Searches
101.
Direction, etc., of search-warrants; The
provisions of Sections 43, 75, 77, 79, 82, 83 and 84 shall, so far as may be,
apply to alt search-warrants issued under Section 96, Section 98, Section 99-A
or Section 100.
102.
Persons incharge of closed place to allow search: (1) Whenever any place liable to search
or inspection under this chapter is dosed, any person residing in, or being incharge
of such place shall, on demand of the officer or other person executing the
warrant, and on production of the warrant, allow him free ingress thereto, and
afford all reasonable facilities for a search therein.
(2) If
ingress into such place cannot be so obtained, the officer or other person
executing the warrant may proceed in manner provided by Section 48.
(3)
Where any person in or about such place is reasonably suspected of concealing
about his person any article for which search should be made, such person may
be searched. If such person is a woman, the directions of Section 52 shall be
observed.
103.
Search to be made in presence of witnesses: (1) Before making a search under this chapter, the officer
or other person about to make it shall call upon two or more respectable
inhabitants of the locality in which the place to be searched is situate to
attend and witness the search and may issue an order in writing to them or any
of them so to do.
(2) The
search shall be made in their presence, and a list of all things seized in the
course of such search and of the places in which they are respectively found
shall be prepared by such officer or other person signed by such witnesses; but
no person witnessing a search under this section shall be required to attend
the Court as a witness of the search unless specially summoned by it.
(3)
Occupant of place searched may attend: The occupant of the place searched, or some person in this
behalf, shall, in every instance, be permitted to attend during the search, and
a copy of the list prepared under this section, signed by the said witnesses,
shall be delivered to such occupant or person at his request.
(4) When
any person is searched under Section 102, sub-section (3), a list of all things
taken possession of shall be prepared, and a copy thereof shall be delivered to
such person, at his request.
(5) Any
person who, without reasonable cause, refuses or neglects to attend and witness
a search under this section, when called upon to do so by any order in writing
delivered or tendered to him, shall be deemed to have committed an offence
under Section 187 of the Pakistan Penal Code.
E.
—Miscellaneous
104.
Power to impound document, etc., produced: Any Court may, if it thinks fit, impound any document or
thing produced before it under this Code.
105.
Magistrate may direct search in his presence: Any Magistrate may direct a search to be
made in his presence of any place for the search of which he is competent to
issue a search warrant.
PART
IV
PREVENTION
OF OFFENCES
CHAPTER
VIII
OF
SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR
A.
—Security for keeping the Peace on Conviction
106.
Security for keeping the peace on conviction: (1) Whenever any person accused of any
offence punishable under Chapter VIll of the Pakistan Penal Code, other than an
offence punishable under Section 143, Section 149, Section 153-A or Section 154
thereof,
or of
assault or other offence involving a breach of the peace, or of abetting the
same,
or any
person accused of committing criminal intimidation, is convicted of such
offence before a High Court, a Court of Session, or the Court of a Magistrate
of the First Class, and such Court is of opinion that it is necessary to
require such person to; execute a bond for keeping the peace, such Court may,
at the time of passing sentence on such person, order him to execute a bond for
a sum proportionate to his means, with or without sureties, for keeping the
peace during such period/not exceeding three years, as it thinks fit to fix.
(2) if
the conviction is set aside on appeal or otherwise, the bond so executed shall
become void.
(3) An
order under this section may also be made by an Appellate Court [or by a
Court] exercising its powers of revision.
Words
subs. by Law Reforms Ordinance (XII of 1972).
B-Security
for keeping the peace in other cases and security for good
behaviour
107.
Security for keeping the peace in other cases: Whenever [Magistrate of the First
Class] is informed that any person is likely to commit a breach of the
peace, disturb the public tranquillity or to do any wrongful act that may
probably occasion a breach of the peace or disturb the public tranquillity, the
Magistrate if in his opinion there is sufficient ground for proceeding may, in
manner hereinafter provided, require such person to show cause why he should
not be ordered to execute a bond, with or without sureties, for keeping the
peace for such period not exceeding one year as the Magistrate thinks fit to
fix.
(2)
Proceeding shall not be taken under this section unless either, the person
informed against or the place where the breach of the peace or, disturbance is
apprehended, is within the local limits of such Magistrate’s jurisdiction, and
no proceedings shall be taken before any Magistrate [except with the
approval of the Sessions Judge], unless both the persons informed against
and the place where the breach of the peace or disturbance is apprehended, are
within the local limits of the Magistrate’s jurisdiction.
(3)
Procedure if Magistrate not empowered to act under sub-section (1):- When any Magistrate not empowered to
proceed under sub-section (1) has reason to believe that any person is likely
to commit a breach of the peace or disturb the public tranquillity or to do any
wrongful act that may probably occasion a breach of the peace or disturb the
public tranquillity, and that such breach of the peace, or disturbance, cannot
be prevented otherwise than by detaining such person in custody, such
Magistrate may, after recording his reasons; issue a warrant for his arrest if
he is not already in custody or before the Court and may send him before a
Magistrate empowered to deal with the case together with a copy of his reasons.
(4) A
Magistrate before whom a person is sent under sub-section (3) may in his
discretion detain such person in custody pending further action by himself
under this Chapter.
Subs.
by Ordinance, XXXVII of 2001, dt.
108.
Security for good behaviour from persons disseminating seditious matter:
Whenever [Magistrate of the First Class] has information that there is
within the limits of his jurisdiction any person who, within or without such
limits, either orally or in writing or in any other manner intentionally
disseminates or attempts to disseminate, or in any wise abets the dissemination
of-
(a) any
seditious matter, that is to say, any matter the publication of which is
punishable under Section 123-A or Section 124-A of the Pakistan Penal Code, or
(b) any
matter the publication of which is punishable under Section 153-A of the
Pakistan Penal Code, or
(c) any
matter concerning a Judge which amounts to criminal intimidation or defamation
under the Pakistan Penal Code, such Magistrate if in his opinion there is
sufficient ground for proceeding may (in manner hereinafter provided) require
such person to show cause why he should not be ordered to execute a bond with
or without sureties, for his good behaviour for such period, not exceeding one
year, as the Magistrate thinks fit to fix.
No
proceedings shall be taken under this section against the editor, proprietor,
printer or publisher of any publication registered under, and edited, printed
and published in conformity with, [the provisions of the Press and
Publications Ordinance, 1960, the West Pakistan Press and Publications
Ordinance, 1963, or any other law relating to Press and Publication for the
time being in force] with reference to any matters contained in such
publication, except by the order or under the authority of the Provincial
Government or some officer empowered by the Provincial Government in this
behalf.
Subs.
by Ordinance, XXXVII of 2001, dt.
Words
subs. by Law Reforms Ordinance (XIl of 1972).
109.
Security for good behaviour from vagrants and suspected persons: Whenever a [Magistrate of the First
Class] receives information-
(a) that
any person is taking precautions to conceal his presence within the local
limits of such Magistrate’s jurisdiction, and that there is reason to believe
that such person is taking such precautions with a view to committing any
offence, or
(b) that
there is within such limits a person who has no ostensible means of
subsistence, or who cannot give a satisfactory account of himself, such
Magistrate may, in manner hereinafter provided, require such person to show
cause why he should not be ordered to execute a bond, with sureties, for his
good behaviour for such period, not exceeding [three years,] as the Magistrate
thinks fit to fix.
Subs.
by Ordinance, XXXVtl of 2001, dt.
Substituted
for the words “one year” by Item 44 (ii) of Punjab Notification No. SO(J-11)
1-8/75 (P-V), dated
110.
Security for good behaviour from habitual offenders: Whenever a [Magistrate of the First
Class] receives information that, any person within the local limits of his
jurisdiction—
(a) is
by habit robber, house-breaker, thief or forger, or
(b) is
by habit a receiver of stolen property knowing the same to have been stolen, or
(c)
habitually protects or harbours thieves or aids, in the concealment or disposal
of stolen property, or
(d)
habitually commits or attempts to commit, or abets the commission of the
offence of kidnapping, abduction, extortion, cheating or mischief, or any
offence punishable under Chapter XII of the Pakistan Penal Cede, or under
Section 489-A, Section 489-B.
Section
489-C or Section 489-D of that Code, or
(e)
habitually commits, or attempts to commit, or abets the commissions of,
offences involving a breach of the
(f) 1s so
desperate and dangerous as to render his being at large without security
hazardous to the community, such Magistrate may, in manner hereinafter
provided, require such person to show cause why he should not be ordered to
execute a bond, with sureties, for his good behaviour for such period, not
exceeding three years, as the Magistrate thinks fit to fix.
Subs
by Ordinance, XXXVII of 2001, dt.
111.
Proviso as to European vagrants: [Rep. by the Criminal Law Amendment Act, 1923
(XI of’1923), Section 8}.
112.
Order to be made: When
a Magistrate acting under Section 107, Section 108, Section 109 or Section 110
deems it necessary to require any person to show cause under such section, he
shall make an order in writing, setting forth the substance of the information
received, the amount of the bond to be executed, the term for which it is to be
in force, and the number, character and class of sureties (if any) required.
113.
Procedure in respect of person present in Court: If the person in respect of whom such
order is made is present in Court, it shall be read over to him or, if he so
desires, the substance thereof shall be explained to him.
114.
Summons or warrant in case of person not so present: If such person is not present in Court,
the Magistrate shall issue a summons requiring him to appear, or, when such
person is in custody, a warrant directing the officer in whose custody be is,
to bring him before the Court:---
Provided
that whenever it appears to such Magistrate, upon the report of a police officer
or upon other information (the substance of which report of information shall
be recorded by the Magistrate), that there is reason to tear the commission of
a breach of the peace, and that such breach of the peace cannot be prevented
otherwise than by the immediate arrest of such person, the Magistrate may at
any time issue a warrant for his arrest.
115.
Copy of order under Section 112 to accompany summons or warrant: Every summons or warrant issued under
Section 114 shall be accompanied by a copy of the order made under Section 112,
and such copy shall be delivered by the officer serving or executing such
summons or warrant to the person served with, or arrested under, the same.
116.
Power to dispense with personal attendance: The Magistrate may, if he sees sufficient cause, dispense
with the personal attendance of any person called upon to show cause why he
should not be ordered to execute a bond for keeping the peace, and may permit
him to appear by a pleader.
117.
Inquiry as to truth of information: When
an order under Section 112 has been read or explained under Section 113 to a
person present in Court, or when any person appears or is brought before a
Magistrate in compliance with, or in execution of, a summons or warrant,
issued, under Section 114, the Magistrate shall proceed to inquire into the
truth of the information upon which action has been taken, and to take such
further evidence as may appear necessary.
[(2)
Such inquiry shall be made, as nearly as may be practicable, in the manner
prescribed in Chapter XX for conducting trial and recording evidence except
that no charge need be framed].
(3)
Pending the completion of the inquiry under sub-section (1) the Magistrate, if
he considers that immediate measures are necessary for the prevention of a
breach of the peace or disturbance of the public tranquillity or the commission
of any offence or for the public safety, may, for reasons to be recorded in
writing, direct the person in respect of whom the order under Section 112 has
been made, to execute a bond, with or without sureties, for keeping the peace
or maintaining good behaviour until the conclusion of the inquiry, and may
detain him in custody until such bond is executed or, in default of execution,
until the inquiry is concluded:---
Provided
that,---
(a) no
person against whom proceedings are not being taken under Section 108, Section
109, or Section 110, shall be directed to execute a bond for maintaining good
behaviour, and
(b) the
conditions of Such ^bond, whether as to the amount-thereof or as to the
provision of sureties or the number thereof or the pecuniary extent of their
liability, shall not be more onerous that those specified in the , order under
Section 112.
(4) For
the purposes of this section the fact that a person is an habitual offender or
is so desperate and dangerous as to render him being at large without security
hazardous to the community may be proved by evidence of general repute or
otherwise.
(5)
Where two or more persons have been- associated together in the matter under
inquiry, they may be dealt with in the same or separate inquiries as the
Magistrate shall think just.
Sub-sec.
(2) substituted by Law Reforms Ordinance (XII of 1972).
118.
Order to give security: (1)
If, upon such inquiry, it is 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, with or without sureties the
Magistrate shall make an order accordingly:---
Provided,---
first,
that no person shall be ordered to give security of a nature different from, or
of an amount larger than or for a period longer than, that specified in the
order made under Section 112;
secondly,
that the amount of every bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive;
thirdly,
that when the person in respect of whom the inquiry is made is a minor, the
bond shall be executed only by his sureties.
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
120.
Commencement of period for which security is required: (1) If any person, in respect of whom an
order requiring security is made under Section 106 or Section 118, is, at the
time such order is made, sentenced to, or undergoing a sentence of
imprisonment, the period for which such security is required shall commence on
the expiration of such sentence.
(2) In
other cases such period shall commence on the date of such order unless the
Magistrate, for sufficient reason, fixes a later date.
121.
Contents of bond: The
bond to be executed by any such person shall bind him to keep the peace or to
be of good behaviour, as the case may be, and in the latter case the
commission, or attempt to commit, or the abetment of, any offence punishable
with imprisonment, wherever it may be committed, is a breach of the bond.
122.
Power to reject sureties: (1)
A Magistrate may refuse to accept any surety offered, or may reject any surety
previously accepted by him or his predecessor under this chapter on the ground
that such surety is an unfit person for the purposes of the bond:---
Provided
that, before so refusing to accept or rejecting any such surety, he shall
either himself hold an inquiry on oath into the fitness of the surety, or cause
such inquiry to be held and a report to be made thereon by a Magistrate
subordinate to him.
(2) Such
Magistrate shall, before holding inquiry, give reasonable notice to the surety
and to the person by whom the surety was offered and shall in making the
inquiry record the substance of the evidence adduced before him.
(3) If
the Magistrate is satisfied, after considering the evidence so adduced either
before him or before a Magistrate deputed under sub-section (1), and the report
of such Magistrate (if any) that the surety is an unfit person for the purpose
of the bond, he shall make an order refusing to accept or rejecting, as the
case may be, such surety and recording his reasons for so doing:---
Provided
that, before making an order rejecting any surety who has previously been
accepted, the Magistrate shall issue his summons or warrants, as he thinks fit,
and cause the person for whom the surety is bound to appear or to be brought
before him.
123.
Imprisonment in default of security: (1)
If any person ordered to give security under Section 106 or Section 118 does
not give such security on or before the date on which the period for which such
security is to be given commences, he shall, except in the case next
hereinafter mentioned, be committed to prison, or, if he is already in prison
be detained in prison until such period expires or until within such period he
gives the.,
security
to the Court or Magistrate who made the order requiring it.
(2)
Proceedings when to be laid before High Court or Court of Session: When such person has been ordered by a
Magistrate to give security for a period exceeding one year, such Magistrate
shall, if such person does not give such security as aforesaid, issue a warrant
directing him to be detained in prison pending the orders of the Sessions
Judge; and the proceedings shall be laid, as soon as conveniently may be;
before such Judge.
(3) The
Sessions Judge, after examining such proceedings and requiring from the
Magistrate any further information or evidence which he thinks necessary, may
pass such order on the case as he thinks fit:---
Provided
that the period (if any) for which any person is imprisoned for failure to give
security shaft not exceed three years.
(3-A) If
security has been required in the course of the same proceedings from two or
more persons in respect of any one of whom the proceedings are referred to the
Sessions Judge under sub-section (2), such reference shall also include the
case of any other of such persons who has been ordered to give security, and
the provisions of sub-sections (2) and (3) shall, in that event, apply to the
case of such other person also, except that the period (if any) for which he
may be imprisoned shall not exceed the period for which he was ordered to give
security.
(3-B) A
Sessions Judge may in his discretion transfer any proceedings laid before him
under sub-section (2) or sub-section (3-A) to an Additional Sessions Judge or
Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge
or Assistant Sessions Judge may exercise the powers of a Sessions Judge under
this section in respect of such proceedings.
(4) If
the security is tendered to the officer incharge of the jail. he shall
forthwith refer the matter to the Court or Magistrate who made the border, and
shall await the orders of such Court or Magistrate.
(5)
Kind of imprisonment: Imprisonment
for failure to give security for keeping the peace shall be simple.
(6)
Imprisonment for failure to give security for good behaviour shall, where the
proceedings have been taken under Section 108 be simple and, where the
proceedings have been taken under Section 109 or Section 110, be rigorous or
simple as the Court of Magistrate m each case directs.
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.
125.
Power to District Magistrate to cancel any bond for keeping the peace or good
behaviour: The
[Sessions Judge] may, at any time, for Sufficient reasons to be recorded in
writing, cancel any bond for keeping the peace or for good behaviour executed
under this Chapter by order of any Court in his district riot superior to his
Court.
Subs.
by Ordinance, XXXVII of 2001, dt. 13-8-2001.
126.
Discharge of sureties: (1)
Any surety for the peaceable Conduct or good behaviour of another person may at
any time apply to [concerned Magistrate of the First Class] to cancel
any bond executed under this Chapter within the local limits of his
jurisdiction.
(2) On
such application being made, the Magistrate shall issue his summons or warrant,
as he thinks fit, requiring the person for whom such surety is bound to appear
or to be brought before him.
Subs.
by Ordinance, XXXVII of 2001, dt.
[126-A.
Security for unexpired period of bond: When a person for whose appearance a
warrant or summons has been issued under the proviso to sub-section (3) of
Section 122 or under Section 126, sub-section (2), appears or is brought before
him, the Magistrate shall cancel the bond executed by such person and shall
order such person to give, for the unexpired portion of the term of such bond,
fresh security of the same description as the original security. Every such
order shall, for the purposes of Sections 121, 122, 123 and 124 be deemed to be
an order made under Section 106 or Section 118, as the case may be.]
S.
126-A. inst. by Code of Criminal Procedure (Amendment) Act, XVIII of 1923.
CHAPTER
IX
UNLAWFUL
ASSEMBLIES AND MAINTENANCE OF PUBLIC PEACE AND SECURITY
127.
Assembly to disperse on command of Magistrate or police officer: (1) Any officer incharge of a police
station may command any unlawful assembly, or any assembly of five or more
persons likely to cause a disturbance of the public peace, to disperse; and it
shall thereupon be the duty of the members of such assembly to disperse
accordingly.
(2)
[Omitted by A.O., 1949, Sch.]
128.
Use of civil force to disperse: If,
upon being so commanded, any such assembly does not disperse, or if, without
being so commanded, it conducts itself in such a manner as to show a
determination not to disperse, any officer incharge of a police-station, may
proceed to disperse such assembly by force and may require the assistance of
any male person, not being an officer, soldier, sailor or airman in the Armed
Forces of Pakistan and, acting as such, for the purpose of dispersing such
assembly, and, if necessary, arresting and confining the persons who form part
of it, in order to, disperse such assembly or that they may be punished
according to law:---
[provided
that for diapering any assembly, firing shall not be resorted to except under
the specific directions of an officer of the police not below the rank of an
Assistant Superintendent or Deputy Superintendent of Police.]
Proviso
added by the Ordinance. XXXVII of 2001. dt.
129.
Use of military force: If
any such assembly cannot be otherwise dispersed, and if it is necessary for the
public security that it should be dispersed, the (the police officer of the
highest rank not below an Assistant Superintendent, or Deputy Superintendent,
of Police] who is present may cause it to be dispersed by the armed forces.
130.
Duty of officer commanding troops required by Magistrate to disperse assembly:
[(1) When 2o[a
police officer of the highest rank not below an Assistant Superintendent, or
Deputy Superintendent, of Police] determines to disperse any such assembly by
the armed forces; he may require any officer thereof in command of any group of
persons belonging to the armed forces to disperse such assembly with the help
of the armed forces under his command and to arrest and-confine such persons
forming part of it as the Magistrate [or such Police officer] may direct, or as
it may be necessary to arrest and confine in order to disperse the assembly or
to have them punished according to law].
(2)
Every such officer shall obey such requisition in such manner as he thinks fit,
but in so doing he shall use as little force, and do as little injury to person
and property, as may be consistent with dispersing the assembly and arresting
and detaining such persons.
Sub-sec:
(1) substituted by Code of Criminal Procedure (Amendment) Act, XLIX of 1975.
Subs.
& ins. by Ordinance, XXXVII) of 2001, dt.
131.
Power of commissioned military officers to disperse assembly: When the public security is manifestly
endangered by any such assembly, and when [no police officer of the highest
rank not below an Assistant Superintendent, or Deputy Superintendent, of
Police] can be communicated with, any commissioned officer of the Pakistan Army
may disperse such assembly by military force, and may arrest and confine any
persons forming part of it, in order to disperse such assembly or that they may
be punished according to law; but if, white, he is acting under this section,
it becomes practicable for him to communicate with [a Police officer not
below the rank of Assistant Superintendent or Deputy Superintendent of Police.]
he shall do so, and shall thenceforward obey the instructions of the [such
Police officer] as to whether he shall or shall not continue such action.
[131-A.
Power to use military force for public security and maintenance of law and
order: (1) If
the Provincial Government is satisfied that, for the public security,
protection of life and property, public peace and the maintenance of law and
order, it is necessary to secure the assistance of the armed forces; the
Provincial Government may require, with the prior approval of the Federal
Government, or the Federal Government may, on the request of the Provincial
Government, direct, any officer of the armed forces or civil armed forces to
render such assistance with the help of the forces under his command, and such
assistance shall include the exercise of powers specified in Sections 46 to 49,
53,54, 55 (a) and (c). 58, 63 to 67, 100.102,103 and 156:---
Provided
that such powers shall not include the powers of a Magistrate.
(2)
Every such officer shall obey such requisition or direction, as the case may
be, and in doing so may use such force as the circumstances may require.
(3)
In rendering assistance relating to exercise of powers specified in sub-section
(1), every officer shall, as far as may be, follow the restrictions and
conditions laid down in the Code.]
Section
131-A inserted by Code of Criminal Procedure (Second Amendment) Ordinance, LXI
of 1996, Section 3.
Subs.
& ins. by Ordinance, XXXVII) of 2001, dt.
132.
Protection against prosecution for acts done under this Chapter: No prosecution against any person for
any act purporting to be done under this Chapter shall be instituted in any
Criminal Court, except with the sanction of the Provincial Government; and
(a) no
police officer acting under this Chapter in good faith,
(b) no
officer acting under Section 131 in good faith,
(c) no
person doing any act in good faith, in compliance with a requisition under
Section 128 or Section 130 [or Section 131-A]; and
(d) no
inferior officer, or soldier, [sailor or airman in the armed forces] doing
any act in obedience to any order which he was bound to obey, shall be deemed
to have thereby committed an offence:---
Provided
that no such prosecution shall be instituted in any Criminal Court against any
officer or [sailor or airman in the armed forces] except with the
sanction of the Federal Government.
Words
inserted by Code of Criminal Procedure (Second Amendment) Order, LXt of 1996,
Section 5.
[l32-A.
Definitions: In this Chapter--
(a)
the expression “armed forces” means the military, naval and air forces,
operating as land forces and includes any other armed forces of
(b) “officer”,
in relation to the armed forces, means a person commissioned, gazetted or in
pay as an officer of the armed forces and includes a junior commissioned
officer, a warrant officer, a petty officer and a non-commissioned officer; and
(c) “soldier”
includes a member of the force constituted under the Act referred to in clause
(a).]
S.
132-A inserted by Code of Criminal Procedure (Amendment) Act, XUX of 1975,
Sections-
CHAPTER
X
PUBLIC
NUISANCES
133.
Conditional order for removal of nuisance: (1) Whenever a [Magistrate of the First Class] considers,
on receiving a police-report or other information and on taking such evidence
(if any) as he thinks fit, that any unlawful obstruction or nuisance should be
removed from any way, river or channel which is or may be lawfully used by the
public, or from any public place, or that the conduct of any trade or
occupation, or the keeping of any goods or merchandise, is injurious to the
health or physical comfort of the community, and: that in consequence of such
trade or occupation should be prohibited or regulated or such goods or
merchandise should be removed or the keeping thereof regulated, or that the
construction of any building, or the disposal of any substance, as is likely to
occasion conflagration or explosion, should be prevented or stopped, or that
any building, tent or structure, or any tree is in such a condition that it is
likely to fait and thereby cause injury to persons living or carrying on
business in the neighbourhood or passing by, and that in consequence the
removal, repair or support of such building, tent or structure, or the removal
or support of such tree, is necessary, or that any tank, well or excavation adjacent
to any such way or public place should be fenced in such manner as to prevent
danger arising to the public, or that any dangerous animal should be destroyed,
confined or otherwise disposed of, such Magistrate may make a conditional order
requiring the person causing-such obstruction or nuisance or carrying on such
trade or occupation, or keeping any such goods or merchandise, or owning,
possessing or controlling such building, tent, structure, substance, tank, well
or excavation, or owning or possessing such animal or tree, within a time to be
fixed in the order, to remove such obstruction or nuisance; or to desist from
carrying on, or to remove or regulate in such manner as maybe directed, such
trade or occupation, or to remove such goods or merchandise, to regulate the
keeping thereof in such manner as may be directed; or to prevent or stop the
erection of, or to remove, repair or support, such building, tent or structure;
or to remove or support such tree, or to alter the disposal of such substance; or
to fence such tank, well or excavation, as the case may be; or to destroy,
confine or dispose of such dangerous animal in the manner provided in the said
order; or, if he objects so to do, to appear before himself or some other [Magistrate
of the First Class] or Second Class, at a time and place to be fixed by the
order, and move to have the order set aside or modified in the manner
hereinafter provided.
(2) No
order duty made by a Magistrate under this section shall be called in question
in any
Explanation:
A “public place” includes also property belonging to the State, camping grounds
and grounds left unoccupied for sanitary or recreative purposes.
Subs.
by Ordinance, XXXVII of 2001, dt. 13-8-2001.
134.
Service or notification of order: (1)
The order shall, if practicable, be served on the person against whom it is
made, in manner herein provided for service-of a summons.
(2) If
such order cannot be so served, it shall be notified by proclamation published
in such manner as the Provincial Government may by rule direct, and a copy
thereof shall be stuck up at such place or places as may be fittest for
conveying the information to such person.
135.
Person to whom order is addressed to obey or show cause or claim jury: The person against whom such order is
made shall,---
(a)
perform within the time and in the manner specified in the order, the act
directed thereby; or
(b)
appear in accordance with such order and either show cause against the same, or
apply to the Magistrate by whom it was made to appoint a jury to try whether
the same is reasonable and proper.
136.
Consequence of his failing to do so: If
such person does not perform such act or appear and show cause or apply for the
appointment of a jury as required by Section 135, he shall be liable to the
penalty prescribed in that behalf in Section 188 of the Pakistan Penal Code and
the order shall be made absolute.
137.
Procedure where he appears to show cause: (1) If he appears and shows’ cause against the order, the
Magistrate shall take evidence [in the manner provided in Chapter XX].
(2) If
the Magistrate is satisfied that the order is not reasonable and proper, no
further proceedings shall be taken in the case.
(3) If
the Magistrate is not so satisfied, the order shall be made absolute.
Words
subs. by Law Reforms Ordinance, XII of 1972.
138.
Procedure when he claims Jury: (1)
On receiving an application, under Section 135 to appoint a jury, the Magnate
shall;
(a)
forthwith appoint a jury consisting of an uneven number of persons not jess
than five, of whom the foreman and one-half of the remaining members shall be
nominated by such Magistrate, and the other members by the applicant;
(b)
summon such foreman and members to attend at such place and time as the
Magistrate thinks fit; and
(c) fix
a time within which they are to return their verdict-
(2) The
time so fixed may, for good cause shown, be extended by the Magistrate.
139.
Procedure where jury finds Magistrate’s order to be reasonable: If the jury or a majority of the jurors
find that the order of the Magistrate is reasonable and proper as originally
made, or subject to a modification which the Magistrate accepts, the Magistrate
shall make the order absolute, subject to such modification (if any).
(2) In
other cases no further proceedings shall be taken under this Chapter.
139-A.
Procedure where existence of public right is denied: (1) Where an order is made under Section
133 for the purpose of preventing obstruction, nuisance or danger to the public
in the use of any way, river; channel or place, the Magistrate shall, on the
appearance before him of the person against whom the order was made, question
him as to whether he denies the existence of any public right in respect of the
way, river, channel or place, and if he does so, the Magistrate shall, before
proceeding under Section 137 or Section 138 inquire into the matter.
(2) If
in such inquiry the Magistrate finds that there is any reliable evidence in
support of such denial, he shall stay the proceeding until the matter of the
existence of such right has been decided by a competent Civil Court; and, if he
finds that there is no such evidence, he shall proceed as laid down in Section
137 or Section 138, as the case may require.
(3) A
person who has, on being questioned by the Magistrate under sub-section (1)
failed to deny the existence of a public right of the nature therein referred
to, or who, having made such denial, has failed to adduce reliable evidence in
support thereof, shall not in the subsequent proceedings be permitted to make any
such denial, nor shall any question in respect of the existence of any such
public right be inquired into by any jury appointed under Section 138.
140.
Procedure on order being made absolute: (1) When an order has been made absolute under Section 136,
Section 137 or Section 139, the Magistrate shall give notice of the same to the
person against whom the order was made, and shall further require him to
perform the act directed by the order within a time to be fixed in the notice,
and inform him that, in case of disobedience, he will be liable to the penalty
provided by Section 188 of the Pakistan Penal Code.
(2)
Consequences of disobedience to order: If such act is not performed within the time fixed, the
Magistrate may cause it to be performed, and may recover the costs of
performing it, either by the sate of any building, goods or other property
removed by his order, or by the distress and sale of any other movable property
of such person within or without the local limits of such Magistrate’s
jurisdiction. If such other property is without such limits, the order shall
authorise its attachment and sale when endorsed by the Magistrate within the
local limits of whose jurisdiction the property to be attached is found.
(3) No
suit shall lie in respect of anything done in good faith under this section.
141.
Procedure on failure to appoint jury or omission to return verdict: If the applicant, by neglect or
otherwise, prevents the appointment of the jury, or if from any cause the jury
appointed do not return their verdict within the time fixed or within such
further time as the Magistrate may in his discretion allow, the Magistrate may
pass such order as he thinks fit, and such order shall be executed in the
manner provided by Section 140.
142.
Injunction pending Inquiry: (1)
If a Magistrate making an order under Section 133 considers that immediate
measures should be taken to prevent imminent danger or injury of a serious kind
to the public, he may, whether a jury is to be or has appointed w not, issue
such an injunction to the person against whom the order was made, as is
required to obviate or prevent such danger or injury pending the determination
of the matter.
(2) In
default of such person forthwith obeying such injunction, the Magistrate may
himself use, or cause to be used, such means as he thinks fit to obviate such
danger or to prevent such injury.
(3) No
suit shall lie in respect of anything done in good faith by a Magistrate under
this section.
143.
Magistrate may prohibit repetition or continuance of public nuisance: A [Magistrate of the First Class]; may
order any person not to repeat or continue a public nuisance, and defined in
the Pakistan Penal Code or any special or Local law.
Subs
by Ordinance, XXXVII of 2001, dt. “
CHAPTER
XI
TEMPORARY
ORDERS IN URGENT CASES OF NUINANCE OR APPREHANDED DANGER
144.
Power to issue order absolute at once in urgent cases of nuisance or
apprehended danger: (1)
in cases where, in the opinion of [the Zila Nazim upon the written
recommendation of the District Superintendent of Police or Executive District
Officer] there is sufficient ground for proceeding under this section and
immediate prevention or speedy remedy is desirable. [the Zila Nazim] may,
by a written order stating the material facts of the case and served in manner
provided by Section 134, direct any person to abstain from a certain act or
take certain order with certain property in his possession or under his
management, if such Magistrate considers that such direction is likely to
prevent, or tends to prevent, obstruction, annoyance or injury, or risk of
obstruction, annoyance or injury, to any person lawfully employed, or clanger
to human life, health or safety, or a disturbance of the public tranquillity,
or a riot, or an affray.
(2) An
order under this section may, in case of emergency or In cases where the
circumstances do not admit of the serving in due time of a notice upon the
person against whom the order is directed, be passed, exparte.
(3) An
order under this section may be directed to a particular individual, or to the
public generally when frequenting or visiting a particular place.
(4) [The
Zila Nazim] may, either, on his own motion or on the application of any
person aggrieved, rescind or alter any order made under this section by himself
or by his predecessor-in-office.
(5)
Where such an application is received, the Magistrate shall afford to the
applicant an early opportunity of appearing before him either in person or by
pleader and showing cause against the order; and, if the [Zila Nazim] rejects
the application wholly or in part, he shall record in writing his reasons for
so doing.
(6) No
order under this section shall remain in force for more than two 39[consecutive
days and not more than seven days in a month] from the making thereof; unless,
in cases of danger to human life, health or safety, or a likelihood of a riot
or an affray, the Provincial Government, by notification in the official
Gazette, otherwise directs.
[(7)
In the application of sub-sections (1) to (6) to the districts where the local
Government elections have not been held, or the Zila Nazim has not assumed
charge of office, any reference in those provisions to the Zila Nazim shall be
read as a reference to the District Coordination Officer in relation to such
districts:---
Provided
that this sub-section shall cease to have effect, and shall be deemed to have
been repealed, at the time when local Governments are installed in the
districts as aforesaid.]
Subs.
by Ordinance. XXXVII of 2001, dt.
Sub-section
(7) 2 Proviso added by Ordinance, XLMI of 2001, . dt.
CHAPTER
XII
DISPUTES
AS TO IMMOVABLE PROPERTY
145.
Procedure where dispute concerning land, etc., is likely to cause breach of
peace: (1) Whenever a [Magistrate
of the First Class] is Satisfied from a police report or other information
that a dispute likely to cause a breach of the peace exists concerning any land
or water or the boundaries thereof within the local limits of his jurisdiction,
he shall make an order in writing, stating the grounds of his being so
satisfied, and requiring the parties concerned in such dispute to attend his
Court in person or by pleader, within a time to be fixed by such Magistrate and
to put in written statements of their respective claims as respects the fact of
actual possession of the subject of dispute.
(2) For
the purposes of this section the expression “land or water” includes buildings,
markets, fisheries, crops or other produce of land and the rents or profits of
any such property.
(3) A
copy of the order shall be served in manner provided by this Code for the
service of a summons upon such person or persons as the Magistrate may direct,
and at least one copy shaft be published by being affixed to some conspicuous
place at or near the subject of dispute.
(4)
Inquiry as to possession: The Magistrate shall then, without reference to
the merits or the claims of any of such parties to a right to possess the
subject of dispute peruse the statements so put in, hear the parties, receive
all such evidence as may be produced by them respectively, consider the effect
of such evidence, take such further evidence (if any) as he thinks necessary,
and, if possible, decide whether any and which of the parties was at the date
of the order before mentioned in such possession of the said subject:---
Provided
that, if it appears to the Magistrate that any party has within two months next
before the date of such order been forcibly and wrongfully dispossessed, he may
treat the party so dispossessed as if he had been in possession at such date:---
Provided
also, that if the Magistrate considers the case one of emergency, he may at any
time attach the subject of dispute, pending his decision under this section.
Subs.
& omitted by Ordinance, XXXVII of 2001, dt-13-8-2001.
(5)
Nothing in this section shall-preclude any party so required to attend or any
other person interested, from showing that no such dispute as aforesaid exists
or has existed; and in such case the Magistrate shall cancel his said order,
and all further proceedings thereon shall be stayed, but, subject to such
cancellation, the order of the Magistrate under sub-section (1) shall be final.
(6)
Party in possession to retain possession until legally evicted: If the Magistrate decides that one of
the parties was or should under the first proviso to sub-section (4) be treated
as being in such possession of the said subject he shall issue an order
declaring such party to be entitled to possession thereof until evicted there
from in due course of law, and forbidding alt disturbance of such possession
until such eviction and when he proceeds under the first proviso to sub-section
(4), may restore to possession the party forcibly and wrongfully dispossessed.
(7) When
any party to any such proceeding dies, the Magistrate may cause the legal
representative of the deceased party to be made a party to the proceeding and
shall thereupon continue the inquiry and if any question arises as to who the
legal representative of a deceased party for the purpose of such proceeding is,
all persons claiming to be representatives of the deceased party shall be made
parties thereto.
(8) If
the Magistrate is of opinion that any crop or other produce of the property,
the subject of dispute in a proceeding under this section pending before him,
is subject to speedy and natural decay, he may make an order for the proper
custody or sale of such property, and, upon the completion of the inquiry,
shall make such order for the .disposal of such property , or the sale-proceeds
thereof, as he thinks fit.
(9) The
Magistrate may, if he thinks fit, at any stage of the proceedings under this
section, on the application of either party, issue a summons to any witness
directing him to attend or to produce any document or thing.
(10)
Nothing in this section shall be deemed to be in derogation of the powers of
the Magistrate, to proceed under Section 107.
146.
Power to attach subject of dispute: (1)
If the Magistrate decides that none of the parties was then in such possession,
or is unable to satisfy himself as to which of them was then in such possession
of the subject of dispute, he may attach it until a competent, Court has
determined the rights of the parties thereto, or the person entitled to
possession thereof:---
Provided
that the Magistrate who had attached the subject of dispute may withdraw the
attachment of any item if he is satisfied that there is no longer any
likelihood of a breach of the peace in regard to the subject of dispute.
(2) When
the Magistrate attaches the subject of dispute. he may, if he thinks fit and if
no receiver of the property, the subject of dispute, has been appointed by any
Civil Court appoint a receiver thereof, who, subject to the control of the
Magistrate, shall have all the powers of a receiver appointed under the Code of
Civil Procedure, 1908:---
Provided
that, in the event of a receiver of the property, the subject of dispute, being
subsequently appointed by any
147.
Dispute concerning rights of use of immovable property, etc.: (1) Whenever any [Magistrate of the
First Class] is satisfied, from a police-report or other information that a
dispute likely to cause a breach of the peace exists regarding any alleged right
of user of any land or water as explained in Section 145, sub-section (2)
(whether such rights be claimed as an easement or otherwise) within the local
limits of his Jurisdiction, he may make an order in writing stating the grounds
of his being so satisfied and requiring the parties concerned in such dispute
to attend the Court in person or by pleader within a time to be fixed by such
Magistrate and to put in writing statements of their respective claims, and
shall thereafter inquire into the matter in the manner provided in Section 145,
and the provisions of that section shall, as far as may be, be applicable in
the case of such inquiry.
Subs,
by Ordinance, XXXVII of 2001. dt.
(2) If
it appears to such Magistrate that such right exists, he may make an order
prohibiting any interference with the exercise of such right:---
Provided
that no such order shall be made where the right is exercisable at all times of
the year, unless such right has been exercised within three months next before
the institution of the inquiry, or where the right is exercisable only at
particular seasons or on particular occasions, unless the right has been
exercised during the last of such seasons or on the last of such occasions
before such institution.
(3) If
it appears to such Magistrate that such right does not exist, he may make an
order prohibiting any exercise of the alleged right.
(4) An
order under this section shall .be subject to any subsequent decision of a
Civil Court of competent jurisdiction.
148.
Local inquiry: (1)
Whenever a local inquiry is necessary for the purposes of this Chapter, 44[a
Sessions Judge] may depute any Magistrate subordinate to him to make the
inquiry and may furnish him with such written instructions as may seem
necessary for his guidance, and may declare by whom the whole or any part of
the necessary expenses of the inquiry shall be paid.
(2) The
report of the person so deputed may be read as evidence rn the case.
(3)
Order as to costs: When
any costs have been incurred by any party to a proceeding under this Chapter
the Magistrate passing a decision under Section 145, Section 146 or Section 147
may direct by whom such costs shall be paid, whether by such party or by any
other party to the proceeding, and whether in whole or in part or proportion,
such costs may include any expenses incurred in respect of witnesses, and of
pleader’s fees, which the Court may consider reasonable.
Subs.
by Ordinance, XXXVIl of 2001, dt.
CHAPTER
XIII
PREVENTIVE
ACTION OF THE POLICE
149.
Police to prevent cognizable offences:
Every police officer may interpose for the purpose of preventing, and shall, to
the best of his ability, prevent the commission of any cognizable offence.
150.
Information of design to commit such offences: Every police officer receiving
information of a design to commit any cognizable offence shall communicate such
information to the police officer to whom he is subordinate, and to any other
officer whose duty it is to prevent or take cognizance of the commission of any
such offence.
151.
Arrest to prevent such offences: A
police officer knowing of a design to commit any cognizable offence may arrest,
without orders from a Magistrate and without a warrant, the person so
designing, if it appears to such officer that the commission of the offence
cannot be otherwise prevented.
152.
Prevention of injury to public property: A police officer may of his own authority interpose to
prevent any injury attempted to be committed in his view to any public
property, movable or immovable, or the removal or injury of any public landmark
or buoy or other mark used for navigation.
153.
Inspection of weights and measures: (1)
Any officer incharge of a police station may, without a warrant, enter any
place within the limits of such station for the purpose of inspecting or
searching for any weights or measures or instruments for weighing, used or kept
therein whenever he has reason to believe that there are in such place any
weights, measures or instruments for weighing which are false.
(2) If
he finds in such place any weights, measures or instruments for weighing which
are raise, he may seize the same, and shall forthwith give information of such
seizure to a Magistrate having jurisdiction.
PART
V
INFORMATION
TO POLICE AND THEIR POWERS TO INVESTIGATE
CHAPTER
XIV
154.
Information in cognizable cases: Information
relating to the, commission of a cognizable offence if given orally to an
officer incharge of a police station, shall be reduced to writing by him or
under his direction and then 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:
155.
Information in non-cognizable cases: (l)
When information is given to an officer incharge of a police station of the
commission within the limits of such station of a non-cognizable offence, he
shall enter in a book to be kept as aforesaid the substance of such information
and refer the information the Magistrate.
(2)
Investigation into non-cognizable cases: No police-officer shall investigate a non-cognizable case
without the order of a Magistrate of the First or Second Class having power to
try such case [or send the same for trial to the Court of Session].
(3) Any
police officer receiving such order may exercise, the, same powers in respect
of the investigation (except the power to arrest without warrant) as an officer
incharge of a police-station may exercise in a cognizable case.
Words
subs. by Law Reforms Ordinance. XH of 1972.
156.
Investigation into cognizable cases: (1)
Any officer incharge of a police-station may, without the order of a
Magistrate, investigate any cognizable case which a Court having jurisdiction
over the local area within the limits of such station would, have power to
inquire into or try under the provisions of Chapter XV relating to the place of
inquiry or trial.
(2) No
proceeding of a police-office in any such case shall at any stage be called in
question on the ground that the case was one, which such officer was not
empowered under this section to investigate.
Any
Magistrate empowered under Section 190 may order such an investigation as above
mentioned.
[(4)
Notwithstanding anything contained in sub-sections (2) or (3) no police-officer
shall investigate an offence under Section 497 or Section 498 of the Pakistan
Penal Code, except upon a complaint made by the husband of the woman, or, in
his absence by some person who had the care of such woman on his behalf at the
time when such offence was committed.]
Sub-section
(4) added by Law Reforms Ordinance, XII of 1972.
157.
Procedure where cognizable offence suspected: (1) If from information received or
otherwise, an officer incharge of a police-station has reason to suspect the
commission of an offence which he is empowered under Section 156 to
investigate, he shall forthwith send a report of the same to a Magistrate
empowered to take cognizance of such offence upon a police-report and shall
proceed in person, or shall depute one of his subordinate officers not being
below such rank as the Provincial Government may, by general or special order,
prescribe in this behalf to proceed, to the spot, to investigate the facts and
circumstance of the case, and, if necessary, to take measures for the ‘discovery
and arrest of the offender:---
Provided
as follows:---
(a)
Where local investigation dispensed with: When any information as to the commission of any such
offence is given against any person by name and the case is not of a serious
nature, the officer incharge of a police-station need not proceed in person or
depute a subordinate officer to make an investigation on the spot;
(b)
Where police-officer incharge sees no sufficient ground for investigation: if it appears to the officer incharge of
a police station that there is no sufficient ground for entering on an
investigation, he shall not investigate the case.
(2) In
each of the cases mentioned in clauses (a) and (b) of the proviso to
sub-section (1), the officer incharge of the police-station shall state in his
said report his reasons for not fully complying with the requirements of that
sub-section, and, in the case mentioned in clause (b) such officer shall also
forthwith notify to the informant, if any, in such manner as may be prescribed
by the Provincial Government the fact that he will not investigate the case or
cause it to be investigated.
158.
Reports under Section 157 how submitted: (1) Every report sent to a Magistrate under Section 157
snail, if the Provincial Government so, directs, be submitted through such
superior officer of police as the Provincial Government, by general or special
order, appoints in that behalf.
(2) Such
superior officer may give such instructions to the officer incharge of the
police station as he thinks fit, and shall, after recording such instructions
on such report, transmit the same without delay to the Magistrate.
159.
Power to hold investigation or preliminary inquiry: Such Magistrate, on receiving such
report may direct an investigation or, if he thinks fit at once proceed, or
depute any Magistrate subordinate to him to proceed, to hold a preliminary
inquiry into, or otherwise to dispose of, the case in manner provided in this
Code.
160.
Police-officer’s power to require attendance of witnesses: Any police-officer making an
investigation under this Chapter may, by order in writing, require the
attendance before himself of any person, being within the limits of his own or
any adjoining station who, from, the information given or otherwise, appears to
be acquainted with the circumstances of the case; and such person shall attend
as so required.
161.
Examination of witnesses by police: (1)
Any police-officer making an investigation under this Chapter or any
police-officer not” below such rank as the Provincial Government may, by
general or special order, prescribe in this behalf, acting on the requisition
of such officer may examine orally any person supposed to be acquainted with
the facts and circumstances of the case.
(2) Such
person shall be bound to answer all questions relating to such case put to him
by such officer, other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The
police officer may reduce into writing any statement made to him in the course
of an examination under this section, and if he does so he shall make a
separate record of the statement of each such person whose statement he
records.
162.
Statements to police not to be signed, use of such statements in evidence: (1) No statement made by any person to a
police-officer in the course of an investigation under this Chapter shall if
reduced into writing be signed by the person making it; nor shall any such
statement or any record thereof whether in a police-diary or otherwise or any
part of such statement or record, be used for any purpose (save as hereinafter
provided) at any inquiry or trial in respect of any offence under investigation
at the time when such statement was made:---
Provided
that, when any witness is called for the prosecution in such inquiry or trial
whose statement has been reduced into writing as aforesaid the Court shall on
the request of the accused, refer to such writing and direct that the accused
be furnished with a copy thereof, in order that any part of such statement, if
duly proved, may be used to contradict such witness in the manner provided by
Section 145 of the Evidence Act, 1872. When any part of such statement is so
used, any part thereof may also be used in the re-examination of such witness,
but for the purpose only of explaining any matter referred to in his
cross-examination:---
Provided
further, that, if the Court is of opinion that any part of any such statement
is not relevant to the subject-matter of the Enquiry or trial or that its
disclosure to the accused is not essential in the interests of justice and is
inexpedient in the public interests, it shall record such opinion (but-not the
reasons therefore) and shall exclude such part from the copy of the statement
furnished to the accused.
(2)
Nothing in this section shall be deemed to apply to any statement falling
within the provisions of Section 32, clause (1) of the Evidence Act, 1872 or to
affect the provisions of Section 27 of that Act.
163.
No inducement to be offered: (1)
No police officer or other person in authority shall offer or make, or cause to
be offered or made, any such inducement, threat or promise as is mentioned in the
Evidence Act, 1872, Section 24.
(2) But
no police officer or other person shall prevent by any caution or otherwise,
any person from making in the course of any investigation under this Chapter
any statement, which he may be disposed to make of his, own free will.
164.
Power to record statements and confessions: (1) Any Magistrate of the First Class and any Magistrate of
the Second Class specially empowered in this behalf by the Provincial
Government may, if he is not a police officer, record any statement or
confession made to him in the course of an investigation under this Chapter or
at any time afterwards before the commencement of the inquiry or trial.
[(1-A)
Any such statement may be recorded by such Magistrate in the presence of the
accused, and the accused given an opportunity of cross-examining the witness
making the statement],
(2) Such
statements shall be recorded in such of the manners hereinafter prescribed for
recording evidence as is, in his opinion, best fitted for the circumstances of
the case. Such confessions shall be recorded and signed in the manner provided
in Section 364, and such statements or confessions shall then be forwarded to
the Magistrate by whom the case is to be inquired into or tried-
(3) A
Magistrate shaft, before recording any such confessions explain to the person
making it that he is not bound to make a confession and that if he does so it
may be used as evidence against him and no Magistrate shall record any such
confession unless, upon questioning the person making it, he has reason to
believe that it was made voluntarily; and when he records any confession, he
shall make a memorandum at the foot of such record to the following effect:
“I have
explained to (name) that he is not bound to make a confession and that, if he
does so, any confession he may make may be used as evidence against him and I
believe that this confession was voluntarily made. It was taken in my presence
and hearing, and was read over to the person making it and admitted by him to
be correct, and it contains a full and true account of the statement made by
him-(Signed) A.B. Magistrate.
Explanation:
It is not necessary that the Magistrate receiving and recording a confession or
statement should be a Magistrate having Jurisdiction in the case.
Sub-section
(1-A) added by Law Reforms Ordinance, XII of 1972.
165.
Search by police-officer: (1)
whenever an officer incharge of a police-station or a police-officer making an
investigation has reasonable grounds for believing that anything necessary for
the purposes of an investigation into any offence which he is authorised to
investigate may be found in any place within the limits of the police-station
of which he is incharge, or to which he is attached, and that such thing cannot
in his opinion be otherwise obtained without undue delay, such officer may,
after recording in writing the grounds of his belief and specifying in such
writing, so far as possible, the thing for which search is to be made, search,
or cause search to be made, for such thing in any place within the limits of
such station:---
Provided
that no such officer shall search, or cause search to be made, for anything
which is in the custody of a bank or banker as defined in the Bankers’ Books
Evidence Act, 1891 (XVIII of 1891), and relates, or might disclose any
information which relates, to the bank account of any person except,---
(a) for
the purpose of investigating an offence under Sections 403. 406, 408 and 409
and Sections 421 to 424 (both inclusive) and Sections 465 to 477-A (both
inclusive) of the Pakistan Penal Code with the prior permission in writing of a
Sessions Judge; and
(b) in
other cases, with the prior permission in writing of the High Court.
(2) A
police-officer proceeding under sub-section (1) shall, if practicable, conduct
the search in person.
(3) If
he is unable to conduct the search in person, and there is no other person
competent to make the search present at the time, he may, after recording in
writing his reasons for so doing require any officer subordinate to him to make
the search, and he shall deliver to such subordinate officer an order in
writing specifying the place to be searched and, so far as possible, the thing
for which search is to be made; and such subordinate officer may thereupon
search for such thing in such place.
(4) The
provisions of this Code as to search warrants and the general provisions as to
searches contained in Section 102, Section 103 shall, so far may be, apply to a
search made under this section.
(5)
Copies of any record made under sub-section (1) or sub-section (3) shall
forthwith be sent to the nearest Magistrate empowered to take cognizance of the
offence and the owner or occupier, of the place searched shall on application
be furnished with a copy of the same by the Magistrate:---
Provided;
that he shall pay for the same unless the Magistrate for Some special reason
thinks fit to furnish it free of cost.
166.
When officer incharge of police station may require another to issue search
warrant: (1) An officer
incharge of a police-station or a police-officer not being below the rank of
sub-inspector making an investigation, may require an officer incharge of
another police-station, whether in the same or a different district, to cause a
search to be made in any place, in any case In which the former officer might
cause such search to be made, within the limits of his own station.
(2) Such
officer, on being So required, shall proceed according to the provisions of
Section 165, and shall forward the thing found, if any. to the officer at whose
request the search was made,
(3)
Whenever there is reason to believe that the delay occasioned by requiring an
officer incharge of another police station to cause a search to be made under
sub-section (1) might result in evidence of the commission of an offence being
concealed or destroyed, it shall be lawful for an officer incharge of a
police-station or a police-officer making an investigation under this chapter
to search, or cause to be searched, any place in the limits of another police
station, in accordance with the provisions of Section 165, as if such place
were within the limits of his own station.
(4) Any
officer conducting a search under sub-section (3) shall forthwith send notice
of the search to the officer incharge of the police station within the limits
of which such place is situate, and shall also send with such notice a copy of
the list (if any) prepared under Section 103, and shall also send to the
nearest Magistrate empowered to take cognizance of the offence, copies of the
records referred to in Section 165, sub-sections (1) and (3).
(5) The
owner or occupier of the place searcher shall, on application be furnished with
a copy of any record sent to the Magistrate under sub-section (4):---
Provided
that he shall pay for the, same unless the Magistrate for some special reasons
thinks fit to furnish it free of cost.
167.
Procedure when investigation cannot be completed in twenty-four hours: (1) Whenever any person is arrested and
detained in custody, and it appears that the investigation cannot be completed
within the period of twenty four hours fixed by Section 61, and there are
grounds for believing that the accusation or information is well founded, the
officer incharge of the police-station or the police-officer making the
investigation if he is not below the rank of the sub-inspector, shall forthwith
transmit to the nearest Magistrate a copy of the entries in the diary
hereinafter prescribed relating to the case, and shall at the same time forward
the accused to such Magistrate.
Explanation:
[Omitted by the Ordinance, XXXVII of 2001, dt.
(2) The
Magistrate to whom an accused person is forwarded under, this section may,
whether he has or has not jurisdiction to try the case, from time to time,
authorize the detention of the accused in such custody as such Magistrate
thinks fit, for a term not exceeding fifteen days in the whole. If he has no
jurisdiction to try the case or [send] it for trial, and considers further
detention unnecessary, he may order the accused to be forwarded to a Magistrate
having such jurisdiction;---
Provided
that no Magistrate of the Third Class, and no Magistrate of the Second Class
not specially empowered in this behalf by the Provincial Government shall
authorise detention in the custody of the police.
(3) A
Magistrate authorizing under this section detention in the custody of the
police shall record his reasons for so doing.
[(4)
The Magistrate, giving such order shall forward copy of his order, with his
reasons for making it, to the Sessions Judge].
[(5)
Notwithstanding anything contained in Sections 60 and 61 or hereinbefore to the
contrary, where the accused forwarded under sub-section (2) is a female, the
Magistrate shall not except—in the cases involving QatI or dacoity supported by
reasons to be recorded in writing, authorise-the detention of the accused in
police custody, and the police officer making an investigation shall
interrogate the accused referred to in subsection (1) in the prison in the
presence of an officer of jail and a female police officer.
(6)
The officer incharge of the prison shall make appropriate arrangements the
admission of the investigating police officer into the prison for the purpose
of interrogating the accused.
(7)
If for the purpose of investigation, it is necessary that the accused referred
to in subsection (1) be taken out of the prison, the officer incharge of the
police station or the police officer making investigation, not below the rank
of sub-inspector, shall apply to the Magistrate in that behalf and the
Magistrate may, for the reasons to be recorded in writing, permit taking of
accused out of the prison in the company of a female police officer appointed
by the Magistrate:---
Provided
that the accused shall not be kept out of the prison while in the custody of
the police between sunset and sunrise].
Word
subs. by Law Reforms Ordinance, XII of 1972.
Sub-sec.
(4) subs. by Law Reforms Ordinance, XII of 1972.
Sub-sections
(5) to (7) added by Code of Criminal Procedure (Second Amendment) Act. XX of
1994, 8.2,
168.
Report of Investigation by subordinate police officer: When any subordinate police officer has
made any investigation under this Chapter, he shall report the result of such
investigation to the officer incharge of the police-station.
169.
Release of accused when evidence deficient: If upon an investigation under this Chapter, it appears to
the officer incharge of the police station or to the police officer making the
investigation that there is no sufficient evidence or reasonable ground of
suspicion to justify the forwarding of the accused to a Magistrate, such
officer shall if such person is in custody, release him on his executing a
bond, with or without sureties, as such officer may direct, to appear, if and
when so required, before a Magistrate empowered to take cognisance of the
offence on a police-report and to try the accused or send him for trial.
170.
Case to be sent to Magistrate when evidence is sufficient: (1) If, upon an investigation under this
Chapter, it appears to the officer incharge of the police-station that there is
sufficient evidence or reasonable ground as aforesaid such officer shall
forward the accused under custody to a Magistrate empowered to take cognizance
of the offence upon a police-report and to try the accused or send him for
trial, or if the offence is bailable and the accused is able to give security,
shall take shall take security from him for his appearance before such
Magistrate on a day fixed and for his attendance from day-today before such
Magistrate until otherwise directed.
(2) When
the officer Incharge of a police station forwards an accused person to a
Magistrate or take security for his appearance before such Magistrate under
this section, he shall send to such Magistrate any weapon or other article
which it may, be necessary, to produce before him and shall require the
complainant,(if any) and so-many of the persons who appear to such officer to
be acquainted with the circumstances of the case as he may think necessary, to
execute a bond to appear before, the Magistrate as thereby directed and
prosecute or, give evidence (as the case may be) in the matter of the charge
against the accused.
(3)
Omitted by item No. 65 (ii) of Punjab Notification No. SO(J-ff) 1-8/75 (P-V),
dated 21.3.1996 for
(4)
[Rep. by the Code of Criminal Procedure (Amendment Act II of 1926 Section 2]
(5) The
officer in whose presence the bond is executed shall deliver a-copy thereof to
one of the persons who executed it, and shall then send to the Magistrate the
original with his report.
171.
Complainants and witnesses not to be required to accompany police-officer: No complainant or witness on his way to
the Court of Magistrate shall be required to accompany a police officer.
Complainants
and witnesses not to be subjected to restraint: Or shall be subjected to unnecessary
restraint or inconvenience, or required to give any security for his appearance
other than his own bond.
Reseusant
complainant witness may be forwarded in custody: Provided that, if any complainant or
witness refuses to attend or to execute a bond as directed in Section 170, the
officer in-charge of the police-station may forward him in custody to the
Magistrate who may detain him in custody until he executes such bond, or until
the hearing of the case is completed.
172.
Diary of proceedings in investigation: (1) Every police-officer making an investigation under this
Chapter shall day by day enter his proceedings in the investigation in-a diary
setting forth the time at which the information reached him, the time at which
he began and closed his investigation, the place or places Visited by him, and
a statement of the circumstances ascertained through his investigation.
(2) Any
Criminal Court may send for the police-diaries of a case under inquiry or trial
in such Court, and may use such diaries, not as evidence in the case, but to
aid it in such inquiry or trial. Neither the accused nor his agents shall be
entitled to call for such diaries, nor shaft he or they be entitled to see them
merely because they are referred to by the Court; but, if they are used by the
police-officer who made them, to refresh his memory, or if the Court uses them
for the purpose of contradicting such police-officer, the provisions of the
Evidence Act, 1872, Section 161 or Section 145, as the case may be, shall
apply.
173.
Report of police officer: (1)
Every investigation under this Chapter shall be completed without unnecessary
delay, and, as soon as it is completed, the officer incharge of the
police-station shall [through the Public Prosecutor]--
(a)
forward to a Magistrate empowered to take cognizance of the offence on a police
report, a report in the form prescribed by the Provincial Government, setting
forth the names of the parties, the nature of the information and the names of
the persons who appear to be acquainted with the circumstances of the case, and
stating whether the accused (if arrested) has been forwarded in custody or has
been released on his bond, and, if so, whether with or without sureties, and
(6)
communicate, in such manner as may be prescribed by the Provincial Government,
the action taken by him to the person, if any, by whom the information relating
to the commission of the offence was first given:---
[provided
that, where investigation is not completed within a period of fourteen days
from the date of recording of the first information report under Section 154,
the officer incharge of the police station shall, within three days of the expiration
of such period, forward to the Magistrate through the Public Prosecutor, an
interim report in the form prescribed by the Provincial Government stating
therein the result of the investigation made until then and the Court shall
commence the trial on the basis of such interim report, unless, for reasons to
be recorded, the Court decides that the trial should not so commence],
(2)
Where a superior officer of police has been appointed under Section 158, the
report shall, in any cases in which the Provincial Government by general or
special order so directs, be submitted through that officer, and he may,
pending the orders of the Magistrate, direct the officer incharge of the
police-station to make further investigation.
(3)
Whenever it appears from a report forwarded under this section that the accused
has been released on his bond, the Magistrate shall make such order for the
discharge of such bond or otherwise as he thinks fit.
(4) A
copy of any report forwarded under this section shall, on application, be
furnished to the accused before the commencement of the inquiry or trial:---
Provided
that the same shall be paid for unless the Magistrate for some special reason
thinks fit to furnish it free of cost.
[(5)
Where the officer incharge of a police station forwards a report under
sub-section (1), he shall along with the report produce the witnesses in the
case, except the public servants, and the Magistrate shall bind such witnesses
for appearance before him or some other Court on the date fixed for trial.]
Words
added by Code of Criminal Procedure (Amendment) Act, XXV of 1992, S.2(i).
Proviso
added by ibid., S. 2 (ii), dated
Sub-section
(5) added by Code of Criminal Procedure (Amendment) Act, XXV of 1992.
Court
Decisions
Report
of Police Officer-Binding, effect of - Report submitted by the Investigating Officer under S.173, Cr.
P. C. was not binding on the Court - Court, notwithstanding the
recommendation of the Investigating Officer regarding cancellation of the case
and discharge of the accused from the case, could decline to cancel the case
and proceed to take cognizance as provided in S.190, Cr. P. C. and summon the
accused to face the trial. 2001 M L D 1578
PLD 1985 SC 62 ref.
Report submitted by the
Investigating Officer under 5.173, Cr. P. C. is not binding on the Court and
the Court, therefore, notwithstanding the recommendation of the Investigating
Officer regarding cancellation of case and discharge of the accused from it may
decline to cancel the case and proceed to take cognizance as provided in 5.190,
Cr. P. C. and summon the accused to face the trial. 1997 S C M R 299
PLD 1967 SC 425 ref.
Belated police
report:-- Delay in submission of
challan in disregard of S. 173, Cr.P.C, by itself, does not vitiate the entire
proceedings-Requirement of S. 173(1), Cr.P.C is directory-submission of belated
report after the expiry of the period fixed by S. 173, Cr.P.C although is not
the compliance as directed by the said provisions, yet it can be considered
substantial compliance-Even otherwise, taking of cognizance by the Court on a
belated police report is not prohibited under S. 190, Cr.P.C. PLD 2003 Kar. 216
Petitioner through his Constitutional
petition prayed for quashment of FIR in question registered with PNCS
u/S. 10, Dangerous Drugs Act, 1993 and Arts. 3, 4, Prohibition
(Enforcement of Hadd) Order, 1979-Thirty-nine months were gone by and
investigator has failed to submit in Court report U/S. 173 Cr. P. C.
which as per section of Cr. P. C. is to be done within 15 days-Pendency
of case in hands of investigator for about 40 months without progress is a fact
itself sufficient to quash FIR-Result is that FIR and all further proceedings
in pursuance of same were quashed. 1999 P.Cr.l.j. 448
Discharge of accused - Police having found the accused innocent,
requested Judicial Magistrate to discharge the accused, request of the police
was turned down by the Magistrate on the ground of lack of jurisdiction as the
case was triable by the Sessions Court - Validity - Discharge of
the accused from the case did not amount to his acquittal in terms of Ss.245,
249-A or 265-K, Cr. P. C. and discharge order was not a judicial order,, but
was an. administrative order amenable to recall upon emergence/discovery of
fresh material by the investigator on which count the Magistrate was the
Competent Authority in terms of Ss. 169 & 173, Cr. P. C. Prior to the
commencement of the trial or taking of cognizance of the matter by the Trial
Court, the Magistrate was competent to pass orders regarding discharge of the
accused, but after taking cognizance by the Trial Court, exclusive jurisdiction
would vest in the Trial Court to pass appropriate order - Order of the
Magistrate refusing to entertain request of police for discharge of the accused
on account of lack of jurisdiction, was set aside by High Court. 2001 M L D
1578
PLD
1949 Lah.537; AIR 1938 Lah.469; PLD 1980 Lah.28; PLD 1962 Lah.405 and 1997 SCMR
299 ref.
Accused after submission of Challan sought
quashment of proceedings by filing application under S.561-A, Cr. P. C. but
that application was dismissed - Despite dismissal order by the High Court,
Trial Court discharged the accused on the grounds that dispute being civil in
nature and criminal transactions being spread over more than one year the joint
trial was bad in law - Validity - Accused could not have been discharged after
the submission of final report under S.173, Cr. P. C. and after taking
cognizance by the Trial Court - Only provision which could be made use of, was
S.249-A, Cr. P. C. when there was no probability of conviction - Order
discharging accused after having issued process and having taken cognizance of
the case, was set aside being not sustainable in law. 2001 MLD 1071.
Malik Murid Sadiq v. The State 1968 P. Cr. L. J. 657;
Muhammad Aslam and another v. Additional Secretary to Government of N.W.F.P.
PLD 1987 SC 103; Nadir Shah v. The State 1980 SCMR 402 and Wazir v. The State
PLD 1962 (W.P.) Lah.405 ref.
Prosecution witnesses had fully implicated
the accused in their statements recorded under S.161, Cr. P. C. Magistrate,
therefore, could not discharge the accused on the basis of police opinion that
they were innocent as such a finding could either be given by the competent
Court or by High Court in quashment proceedings - Prosecution was consequently
directed to move an appropriate application in the High Court for annulment of
the aforesaid order of discharge passed by the Magistrate. P L D 1997
Lah.164
Trial Court not agreeing with the
conclusion of Investigating Officer declined to discharge the accused from the
case and directed the police to submit Challan against them - High Court
in exercise of its revisional jurisdiction cancelled the case against the
accused and directed the recovered allegedly smuggled item (gold) to be handed
over to the respondent - Held, reasons given by Trial Court, for not
accepting the report of Investigating Officer for cancellation of the case and
discharge of the accused from the same could not be discarded by the High Court
merely on the basis of the Investigating Officer’s report Said reasons advanced
by Trial Court being neither perverse nor fanciful or arbitrary did not even
justify interference by High Court in exercise of its revisional jurisdiction
under Ss.435 & 439, Cr. P. C. Approach of High Court was wholly
misconceived as it had made definite observation on the merits of the case
without allowing opportunity to Trial Court to record evidence in the case and
to examine its merits - Order of High Court was set aside accordingly and
the case was remanded by S.C. to Trial Court for proceeding in accordance with
law in the light of above observations. 1997 S C M R 299
PLD 1967 SC 425 ref.
No order of discharge was passed by the
Ilaqa Magistrate on the basis of the police report under S.173, Cr. P. C.
although two different Investigating Officers had found the accused innocent
and had recommended their discharge from the case Sessions Court, therefore,
while rejecting the application of accused under S.265-K, Cr. P. C. through the
impugned order and framing the charge, had not committed any illegality -
Case against accused was to be decided by the Trial Court on the basis of legal
evidence produced before it - Revision petition was dismissed
accordingly. 1997 M L D 1745
PLD 1966 (W.P.) Lah.344; 1995 MLD 1635; 1990 P. Cr. L.
J 1765 and PLD 1988 Lah.336 ref. PLD 1980 Lah.81; PLD 1985 Lah.71 and PLD 1986
Lah.81 distinguished. 1985 SCMR 1314 fol.
Executive order passed by Magistrate not
subject to revision, but amendable to inherent jurisdiction of High Court -
Cancellation of FIR-Magistrate while concurring with the police report
submitted. Under S. 173, did not act as a Criminal Court inferior to the Court
of Sessions and the High Court and his order, therefore, cannot be revised and
modified under the provisions of Ss. 435 & 439, Cr. P. C. but the same is
amendable to the inherent jurisdiction of High. Court under S. 561-A, Cr. P. C.
provided it amounts to abuse of process of Court. 2000 P. Cr. L. J. 520
Discharge of accused after submission of Challan in
the Court - Once -the Challan
is submitted in the Court under S.173, Cr. P. C. ., the provisions of S.169,
Cr. P. C. cannot be invoked. 2000 P. Cr. L J 25
Discharge order not to be treated as an
order of acquittal - Order of
discharge passed by the Ilaqa Magistrate cannot be treated as an order of
acquittal, nor the same would bar subsequent proceedings against the discharged
accused by a Court of competent jurisdiction. 1999 M L D 1822
Accused discharged on the basis of
police report cannot be summoned to face trial - Accused having been discharged by the
Magistrate on the basis of the discharge report of the Investigating Agency
cannot under tile law be summoned as accused persons either by him or by the
Trial Court, unless fresh evidence is brought on record against them. 1997 M
L D 1745
PLD 1980 Lah.81; PLD 1985 Lah.71 and PLD 1986 Lah.81
ref.
Offence triable by sessions judge:-- Report submitted by Investigating officer before
judicial Magistrate was sent to the Sessions judge because offence allegedly
committed by the accused was exclusively triable by Sessions judge and sessions
judge agreed with the said report--- held: Magistrate who after receiving
report of Investigating officer submitted under S. 173, Cr.P.C., was seized of
the matter, could competently assume jurisdiction and pass proper order as it
was exclusive authority of the judicial Magistrate to pass order under S.
173(3), Cr.P.C-Section 173, Cr.P.C did not provide for sending report of
Investigating officer to the Sessions judge and did not indicate any role of
sessions judge on report under S. 561-A, Cr.P.C in circumstances-order of
judicial Magistrate whereby report was sent to the sessions judge also being
without lawful authority, could be quashed by High court in exercise of its powers
under S. 561-A, Cr.P.C – Both orders were quashed, in circumstances. PLD
2003 Kar. 433
A Magistrate not helpless on receiving the
repot from the Police u/Section 173 Cr. P. C. read with Section 169
thereof-Held that: Whether the course the 1.0. Adopted by acting u/Section 169
Cr. P. C. or u/Section 173 Cr. P. C. It was incumbent upon him to submit a
final report u/Section 173 Cr. P. C. with regard to result of the investigation
to a competent Magistrate - Further held: That in the said case police had
submitted an application for cancellation of case u/S. 169 Cr. P. C. and the
same was held to be not competent-Further held: That in the present case the
High Court was within its constitutional jurisdiction to declare the order
dated 15.12.1994 to be without lawful authority and of no legal effect Besides
what the High Court had done was to remit the case to the magistrate or passing
appropriate order in the circumstances of the case - No exception could be
taken of the impugned judgment. PSC (Crl.) 1997 SC (Pak.) 413
Disposal of FIR by Investigating
Officer-Investigating Officer has the
authority to dispose of a first information report as cancelled after having
found the same as false, founded on a mistake of fact or law, a dispute of a
civil nature or untraceable, after taking all necessary steps to the best of
his endeavour and ability, but the order of cancellation of FIR must be
obtained from a Magistrate competent to take cognizance of the offence and to
try the case or to send the matter for trial to a superior Court. 2000P.Cr.LJ.520.
Second Report: -- Contention that after report u/Section 173, Cr.
P. C. no fresh investigation could be undertaken by the police - The same
repelled-Held that: The police would- be competent to carry out multiple
investigation even after submission of the Challan. KLR 1993 Cr. C. 80
There is nothing in the Code of Criminal
Procedure to prevent the investigating officer from submitting a subsequent,
report in supersession of his earlier one either on his own initiative or
on the direction of the superior police officer. PSC 1987 SC (Pak) 11
Second Report-One Challan submitted in
Court but after another investigation second report submitted-Validity and
effect of second report-Held: The Law does not bar more than one investigation
of any case-Since subsequent investigations have been considered lawful, the
reports submitted as a result thereof have also to be given weight. Powers of
Court to act on the second report-Held: The Court does not become functions
officio, after entertaining the first report under Section 173, Cr. P. C.and it
can act on the report submitted after subsequent investigation, declaring the
accused innocent. KLR 1987 Cr. G. 38
Although there is no provision in Criminal
Procedure Code debarring police Investigation Officer from submitting a fresh
report in supersession to the earlier one either on his own initiative or on
the direction of superior police officers but the same implies that the report
would be prepared and submitted after proper and independent application of
mind. P L D 1992 Pesh. 80
Recording of evidence in a case triable by Sessions Court-Contention that the
Magistrate is required to send the case for trial to the Court of Sessions
under sub-section (3) of Section 190 of the Code without recording of evidence;
that ‘the Magistrate was bound to commence recording of evidence if the Challan
is not filed under offences exclusively triable by the Court of Sessions and
that once that Magistrate starts recording evidence in a case, he cannot then
send the case for trial to the Court of Session because he is precluded from
recording evidence under sub-section (3) of Section 190 of the
Code-Contention repelled-Held: These contentions are
not impressive which can be considered from two aspects; Firstly, a
Magistrate who takes cognizance of an offence under sub-section (1) of Section
190 of the Code is not bound by the opinion of Police or by the of Sections of
Penal Code given in the Challan reports under Section 173 of the Code by police.
The Magistrate has to form his own opinion even without recording evidence
after going through the material placed before him-The Magistrate though not
required to record evidence after taking cognizance can still hold inquiry for
limited purposes sending the case under sub-section (3) of Section 190 of the
Code for trial by the Court of Sessions Secondly, if in a particular case, a
magistrate taking cognizance under sub-section (1) of Section 190 of the Code
initially forms a view that he should himself try the case and starts recording
evidence but at a later stage forms an opinion that the case should or ought to
be tried by a Court of Sessions he will be able to proceed and act under
Section 346 and 347 of the Code and send the case for trial to the Court of
Session. I am, therefore of the view that any case under the Pakistan Penal
Code, for reasons to be recorded, can be sent for trial by a magistrate under
sub-section (3) of Section 190 of the Code without recording any evidence and
also under sections 356 and 347 of the Code if he has commenced recording
evidence in a particular case. KLR 1985 Cr. C. 652
Direction to submit Challan : -- Police
made application under Section 169 for cancellation of case-Sessions Judge
directed the police to file Challan after preparation of report under Section
173-Contention’ that Sessions Judge has not jurisdiction to direct police to
submit Challan and such order of Sessions Judge directing police to file
Challan after preparation report under Section 169, was not sustainable,
repelled-Held: No application for cancellation of case under section 169 was
competent and Sessions Judge rightly directed police to file Challan after
completing final report under Section 169-Held further: Use of word Challan by
Sessions Judge was not anything more than to submit final report
after completing investigation as required by law. PSC 1983 SC (Pak) 47
Report under Section 173, Cr. P.
C.whether conclusive for magistrate-The
case was initially registered under Section 302/307/149/148 P.P.C. The. police
after investigation filed Challan under Section 304/307/149/148, P.P.C.-Held:
The Magistrate was not bound to accept the opinion of the police nor was the
same conclusive-He was required to form his own independent opinion for sending
the case to the Court of Sessions. KLR 1985 Cr. C. 652
S. 173(l)Proviso-The incorporation of the provision is the creation of a
sort of check restraint, censorship upon the police working as the protracted
investigation specially though transfer of investigation, is one of the reasons
whereby the law and order _Situation is worsening in the province. It is also
lowering the authority and prestige of the: concerned station House Officer (s)
of the police station vis-a-vis the accused persons. KLR 1997 Cr. C.
608
Detention of accused in police custody
if Challan not filed in terms of S.173, Cr. P. C. Effect - Police Officer as per S.344, Cr. P.
C. is duty bound to furnish justification of detention of accused in custody if
Challan under S.173, Cr. P. C. has not been filed and trial has not commenced,
otherwise in absence of report of a police officer or Challan, detention of the
accused would be unjustified and against the provisions of law.Investigating
Agency must strictly adhere to the provisions of S.173(1), Cr. P. C.
Notwithstanding the fact that before or after completion of investigation
period prescribed under S.167, Cr. P. C. if it is not possible to submit final
report, the Investigating Agency should strictly adhere to the provision of
S.173(1), Cr. P. C. and must submit interim Challan through Public Prosecutor
for trial and the accused arrested in the case should not be kept in custody
for indefinite period without any legal justification. PLD 2002 S.C. 590
PLD 1990 Lah.249; PLD 1987 SC 13; 1995 P.
Cr. L. J. 440 and 1997 MLD 2094 ref.
Death in police custody - Inquiry, into cause of death by Magistrate Scope -
Where deceased was in police custody, inquiry into cause of death of the
deceased can be held by Magistrate under the provisions of S. 176, Cr. P. C.
Such inquiry can be either instead of or in addition to the investigation held
by police officer under S. 174, Cr. P. C. PLD 2002 Lah.78
PLD 1957 Lah.662 rel.
Placing of accused in Column No.2 of
report under S.173 Summoning of
such accused persons - Jurisdiction of Trial Court - Accused
persons were found innocent by the Investigating Officer and were placed in
Column No.2 of the report - Trial Court on application made by the
complainant, summoned the accused persons to face the trial -
Validity - Report of Investigating Officer was not binding on the Court
and notwithstanding recommendation of Investigating Officer regarding
cancellation of case and discharge of accused persons from allegation, Trial Court
was authorized to take cognizance as provided in S.190, Cr. P. C. Trial Court
had rightly summoned the accused persons and there was no irregularity or
illegality or impropriety in the order passed by the Court. 2001 P. Cr. L J
1624
1999 P. Cr. L. J 731; 1990 P. Cr. L. J 1190; 1993
PCr.Li 686 and 1991 P. Cr. L. J 443 ref.
PLD 1967 SC 425; PLD 1993 Kar. 342 and 1998 SCMR 1128
rel.
Accused under 5.302/34, P.P.C. found
innocent by Police investigations, placed in column No.2 and discharged by
Illaqa Magistrate-Sessions Court’s order summoning them for trial, impugned -
Plea raised that accused-petitioners could not be mechanically summoned by
Sessions Court unless first evidence was recorded and in the light of such
evidence trial Court deemed it proper to summon them - Held: Challan against
petitioners had not been cancelled by placing them in column No.2, it only
meant that according to police investigation they were found innocent, and
therefore, they were discharged under S.63, Cr. P. C. which did not mean that they
could not be summoned to stand trial - Petition being without substance, leave
to appeal refused. 1988 S C M R 1428
P L D 1987 S C 103 and 1985 S C M R 1314 ref.
Release of accused when evidence
deficient - Powers under S.169, Cr.
P. C. can only be exercised by the Police during the course of investigation
when accused is in their custody - Once the Challan is submitted under S. 173,
Cr. P. C. the provisions of S. 169, Cr. P. C. are not attracted -
Investigating Officer is also not empowered to omit the name of accused from
the Challan. 1999 Y L R 2053
If before filing a report under s.
173, Cr. P. C. police found that evidence against arrest of accused was
deficient, he would place a report stating that evidence the insufficient or a
reasonable ground of suspicion was lacking in the case for justifying
forwarding of an accused - Police would report to a Magistrate empowered to
take cognizance of offence asking for release of accused which would be done
under S. 169, Cr. P.C read with R. 24.7 of police Rules, 1934 - Order of
release had to be passed only by Magistrate empowered to take cognizance of
offence on police report - Where offence against accused fell under S. 364, PPC
Executive Magistrate had no jurisdiction - Executive Magistrate having violated
law by taking jurisdiction in matter, order passed by such Magistrate was set
aside being without jurisdiction. 2000 P.Cr.L.J 1411
Sufficient material for and against the parties
existed on record - Police
could not be allowed to adjudicate upon the same by cancelling the case against
accused - Challan in the fitness of things and in order to arrive
at a just and fair conclusion was directed to be put up in the Court for
deciding the matter one way or the other. P L D 1992 Pesh. 80
174.
Police to inquire to report in suicide, etc.: (1) The officer incharge of a police
station or some other police officer specially empowered by the Provincial
Government in that behalf, on receiving information that a person-
(a) has
committed suicide, or
(b) has
been killed by another, or by an animal, or by machinery, or by an accident, or
(c) has
died under circumstances raising a reasonable suspicion that some other person
has committed an offence, shall immediately give intimation thereof to the
nearest Magistrate empowered to hold (inquests and unless otherwise directed by
any rule prescribed by the Provincial Government, shall proceed to the place
where the body, of such deceased person is, and there, in the presence of two
or more respectable inhabitants of the neighbourhood, shall make an
investigation, and draw up a report of the apparent cause of death, describing
such wounds, fractures, bruises and other marks of injury as may be found oil
the body and stating in what manner, or by what weapons- or instrument (if
any), such marks appear to have been inflicted.
(2) The
report shall be signed by such police officer and other persons, or by so many
of them as concur therein, and shall be forthwith forwarded to the [concerned]
Magistrate.
(3) When
there is any doubt regarding the cause of death or when for any other reason
the police-officer considers it expedient so to do, the shall, subject to such
rules as the Provincial Government may prescribe in this behalf, forward the
body, with a view to its being examined, to the nearest Civil Surgeon, or other
qualified medical man appointed in this behalf by the Provincial Government, if
the state of the weather and the distance admits of its being so forwarded
without risk of such putrefaction on the road as would render such examination
useless.
(4)
[Omitted by A.O., 1949, Sch.]
(5) [The
Magistrates of the First Class are empowered to hold inquests.]
175.
Power to summon persons: (1)
A police-officer proceeding under Section 174 may, by order in writing summon
two or more persons a& aforesaid for the purpose of the said investigation
and any other person, who appears to be acquainted with the facts of the case.
Every person so summoned shall be abound to attend and to answer truly, all
questions other than Questions the answers to which would have a tendency to
expose him to a criminal charge, or to a penalty or forfeiture.
(2) If
the facts do not disclose a cognizable offence to which Section 170 applies,
such persons shall not be required by the police officer to attend a Magistrate’s
Court.
176.
Inquiry by Magistrate into cause of death: (1) When any person dies while in the custody of the
police, the nearest Magistrate empowered to hold inquests shall, and in any
other case mentioned in Section 174, clauses (a), (b) and (c) of sub-section
(1), any Magistrate so empowered may hold an inquiry into the cause of death
either .instead of, or in addition to, the investigation held by the
police-officer, and if he does so, he shall have all the powers in conducting
it which he would have in holding:, an inquiry into an offence.
The
Magistrate holding such an inquiry shall record the evidence taken by him in
connection therewith in any of the manners hereinafter prescribed according to
the circumstances of the case.
(2)
Power to disinter corpses: ‘Whenever
such Magistrate considers it expedient to make an examination of the dead body
of any person who has been already interred, in order to discover the cause of
his death, the Magistrate may cause the body to be disinterred and examined.
PART
VI
PROCEEDINGS
IN PROSECUTIONS
CHAPTER
XV
OF
THE JURISDICTION OF THE CRIMINAL COURTS OF INQUIRIES AND
TRIALS
A-Place
of Inquiry or Trial
177.
Ordinary place of inquiry and trial: Every
offence shall ordinarily be inquired into and tried by a Court within the local
limits of whose jurisdiction it was committed.
178.
Power to order cases to be tried in different sessions divisions: Notwithstanding anything contained in
Section 177, the Provincial Government may direct that any cases or class of cases
[in any district sent for trial to a Court of Session may be tried in any
sessions division]:---
[Provided
that such direction is not repugnant to any direction previously issued by the
High Court under Section 526 of the Code or any other law for the time being in
force].
179.
Accused triable in district where act is done or where consequence ensues: When a person is accused of the
commission of offence by reason of anything, which has been done, and of any
consequence which has ensued, such offence may be inquired into or tried by a
Court within the local limits of whose jurisdiction any such thing has been
done, or any such consequence has ensued.
Illustrations
(a) A is
wounded within the local limits of the jurisdiction of Court X, and dies within
the local limits of the jurisdiction of Court Z. The offence of the culpable
homicide of A may be inquired into or tried by X or Z.
(b) A is
wounded within the local limits of the jurisdiction of Court X, and is, during
ten days within the local limits of the jurisdiction of Court Y. and during ten
days more within the local limits of the jurisdiction of Court Z, unable in the
local limits of the jurisdiction of either Court Y, or Court Z. to follow his
ordinary pursuits. The offence of causing grievous hurt to A may be inquired
into or tried by X, Y or Z.
(c) A is
put in fear of injury within the local limits of the jurisdiction of Court X,
and is thereby induced, within the local limits of the jurisdiction Court, Y,
to deliver property to the person who put him in fear. The offence of extortion
committed on A may be inquired into or tried either by X or Y.
(d) A is
wounded in the State of
Words
subs. by Law Reforms Ordinance, XII of 1972.
Proviso
subs. by Law Reforms Ordinance, XII of 1972.
180.
Place of trial where act is offence by reason of relation to other offence: When an act is an offence by reason of
its relation to any other act, which is also an offence or which would be an
offence if the doer were capable of committing an offence, a charge of the
first-mentioned offence may be inquired into or tried by a Court within the
local limits of whose jurisdiction either act was done.
Illustrations
(a) A
charge of abetment may be inquired into or tried either by the Court within the
local limits of whose jurisdiction the abetment was committed, or by the Court
within the focal limits of whose jurisdiction the offence abetted was
committed.
(b) A
charge of receiving or retaining stolen goods may be inquired into or tried
either by the Court within the local limits of whose jurisdiction the goods
were stolen, or by any Court within, the local limits of whose jurisdiction any
of them were at any time dishonestly received or retained.
(c) A
charge of wrongfully concealing a person known to have been kidnapped, may be
inquired into or tried by the Court within the local limits of whose
jurisdiction the wrongful concealing, or by the Court within the local limits
of whose Jurisdiction the kidnapping, took place.
181.
Being a thug or belonging to a gang of dacoits escape from custody, etc.: (1) The offence of being a thug, of
being a thug and committing murder, of dacoity, of dacoity with murder, of having
belonged to a gang of dacoits, or of having escaped from custody, may be
inquired into or tried by a Court within the local limits of whose jurisdiction
the person charged is.
(2)
Criminal misappropriation and criminal breach of trust: The offence of criminal misappropriation
or of criminal breach of trust may be inquired into or tried by a Court within
the local limits of whose jurisdiction any part of the property which is the
subject of the offence was received or retained by the accused person, or the
offence was committed.
(3)
Theft: The offence of
theft, or any offence which includes theft or the possession of stolen
property, may be inquired into or tried by a Court within the local limits of
whose jurisdiction such offence was committed or the property stolen was
possessed by the thief or by any person who received or retained the same
knowing or having reason to believe it to be stolen.
(4)
Kidnapping and abduction: The
offence of kidnapping or abduction may be inquired into or tried by a Court within
the local limits of whose jurisdiction the, person kidnapped or abducted was
kidnapped or abducted or was conveyed or concealed or detained.
182.
Place of inquiry or trial where scene of offence is uncertain or not in one
district only or where offence is continuing or consists of several acts: When it is uncertain in which of several
local areas ah offence was committed, or where an offence is committed partly
in one local area and partly in another, or where an offence is a continuing
one, and continues to be committed in more local areas than one, or where it
consists of several acts done in different local areas, it may be inquired into
or tried .by a Court having jurisdiction over any of such local areas.
183.
Offence committed on a journey: An
offence committed whilst the offender is in the course of performing a journey
or voyage may be inquired into or tried by a Court through or Into the focal
limits of whose Jurisdiction- the offender, or the person against whom, or the
thing in respect of which, the offence was committed, passed in the course of
that journey or voyage.
184.
Offence against Railway Telegraph, Post Office &. Arms Act: [Rep by the Federal Law (Rrevision and
Declaration) Act, XXVI of 1951, S. 3 and Second Sch.]
185.
High Court to decide, in case of doubt, district where inquiry or trial shall
take place: (1)
Whenever a question arisen as to which of two or more Courts subordinate to the
Same High Court ought to inquire into or try any offence, it shall be decided
by that High Court.
(2)
Where two or more Courts not subordinate to the same High Court have taken
cognizance of the same offence the High Court within the local limits of whose
appellate criminal jurisdiction the-proceedings were first commenced may direct
the trial of such offender to be held in any Court subordinate to it, and if so
decides, all other proceedings; against such person in, respect of such offence
shall be discontinued. If Such High Court, upon the matter, having been brought
to its notice, does not so decide, any other High Court/within the local limits
of whose appellate criminal jurisdiction such proceedings are pending may give
a like direction, and upon its so doing all other such proceedings shall be
discontinued.
186.
Power to issue summons or warrant for offence committed beyond local
jurisdiction: (1) When
a Magistrate of the First Class Sees reason to believe that any person within
the local limits of his jurisdiction has committed without such limits
(whether, within or without Pakistan an offence which cannot under the
provisions of Sections 177 to 184 (both inclusive), or any other law for the
time being in force, be inquired into or tried within such local limits, but is
under some law for the time being in force triable in Pakistan, such Magistrate
may inquire into the offence as if it had been committed within such local
limits and compel such person in manner hereinbefore provided to appear before
him, and send such person to the Magistrate having jurisdiction to inquire into
or try such offence, of, if such offence is bailable, take a bond with or
without sureties for his appearance before such Magistrate.
(2)
Magistrate’s procedure on arrest: When
there are more Magistrate then one, having such jurisdiction and the Magistrate
acting under this section cannot satisfy himself as to the Magistrate to or
before whom such person should be sent or bound to appear, the case shall be
reported for the orders of the High Court.
187.
Procedure where warrant issued by subordinate Magistrate: (1) If the person has been arrested
under a warrant issued under Section 186 [the Magistrate issuing warrant
shall send the arrested person to the Sessions Judge] to whom he is
subordinate, unless the Magistrate having jurisdiction to inquire into or try
such offence issues his warrant for the arrest of such person, in which case
the person arrested shall be delivered to the police officer executing such
warrant or shall be sent to the Magistrate by whom such warrant was issued.
(2) If
the offence, for which the person arrested is alleged or suspected have
committed, is one, which may be inquired into or tried by any Criminal-Court in
the same district other than that of the Magistrate acting under Section 186,
such Magistrate shall send person to such Court.
Words
subs. by Law Reforms Ordinance, XII of 1972.
188.
Liability for offences committed: When
a citizen of
Outside
Pakistan: When a
servant of the State (whether a citizen of Pakistan or not) commits an offence
in [a tribal area], or when any person commits an offence on any ship or
aircraft registered in Pakistan where it may be, he may be dealt with in
respect of such offence as if it had been committed at any place within Pakistan
at which he may be found:
Political
Agents to certify fitness of inquiry into charge: Provided that notwithstanding anything
in any of the preceding sections of this Chapter no charge as to any such
offence shall be inquired into in Pakistan unless the Political Agent, if there
is one, for the territory in which the offence is alleged to have been
committed, certifies that in his opinion, the charge ought to-be inquired into
in Pakistan; and, where there is no Political Agent, the sanction of the Federal
Government shall be required:---
Provided,
also, that any proceedings taken against any person under this section which
would be a bar to subsequent proceedings against such person for the same
offence if such offence had been committed in Pakistan shall be a bar to
further proceedings against him under the Extradition Act, 1972 (XXI of 1972)
in respect of the same offence in any territory beyond the limits of Pakistan.
Words
substituted by Federal Laws (Revision and Declaration) Ordinance, XXVII of
1981.
189.
Power to direct copies of depositions and exhibits to be received in evidence: Whenever any such offence as is referred
to in Section 188 is being inquired into or tried, the Provincial Government
may, if it thinks fit, direct that copies of depositions made or exhibits
produced before the Political Agent or a Judicial Officer in or for the
territory in which such offence is alleged to have been committed shall be
received as evidence by the Court holding such inquiry or trial in any case in
which such Court might issue a commission for taking evidence as to the matters
to which such depositions or exhibits relate.
B-Conditions
requisite for initiation of proceedings
190.
Cognizance of offences by Magistrates: [(1) All Magistrates of the First Class, or any other
Magistrate specially empowered by the Provincial Government on the
recommendation of the High Court, may take cognizance of any offence,---
(a)
upon receiving a complaint of facts which constitute such offence;
(b)
upon a report in writing of such facts made by any police officer;
(c)
upon information received from any person other than a police officer, or upon
his own knowledge or suspicion, that such offence has been committed which he
may try or send to the Court of Session for trial and]
7[(2)
A Magistrate taking cognizance under sub-section (1)of an offence triable
exclusively by a Court of Session shall, without recording any evidence, send
the case to the Court of Session for trial].
Sub-Section
(1) Subs. by the Ordinance, XXXVII of 2Q01, dt.
Sub-section
(3) renumbered (Sub-Section (2)) as sub-section (2) by the Ordinance, XXXVII of
2001, dt.
[191.
Transfer on application of accused: When
a Magistrate takes cognizance of an offence under sub-section (1), clause (c)
of the preceding section, the accused shall, before any evidence is taken be
informed that he is entitled to have the case tried by another Court, and, if
the accused, or any of the accused if there be more than one, objects to being
tried by such Magistrate, the case shall instead of being tried by such
Magistrate, be sent to the Sessions Judge.
Section
191 subs. by Item No. 71 of
same
Item No. of Islamabad Notification No. S.R.O. 255 (1), dated
192.
Transfer of cases by Magistrate [Omitted by the Ordinance. XXXVII of 2001, dt.
13.8.2001.]
193.
Cognizance of offences by Courts of Session: (1) Except as otherwise expressly provided by this Code or
by any other law for the time being in force no Court of Session shall take
cognizance of any offence as a Court of original jurisdiction unless the 11
[case has been sent to it under Section 190, sub-section [(2)].
(2)
Additional Sessions Judges and Assistant Sessions Judges shall try such cases
only as the Provincial Government by general or special order may direct them
to try or as the Sessions Judge of the division by general or special order may
make over-to them for trial.
Words
subs. by Law Reforms Ordinance, XII of 1992.
Subs.
by the Ordinance. XXXVII of 2001, dt. 13-8-2001-
194.
Cognizance of offences by High Court: (1)
The High Court may take cognizance of any offence is in manner hereinafter
provided.
Nothing
herein contained shaft be deemed to affect the provisions of any Letters Patent
or Order by which a High Court is constituted or continued, or any other
provision of this Code.
(2)
[Omitted by Federal Laws (Revision and Declaration) Ordinance XXVII of 1981].
(a)
Prosecution for contempt of lawful authority of public servants: Of any offence punishable under Sections
172 to 188 of the Pakistan Penal Code, except on the complaint in writing of
the public servant concerned, or of some other public servant to whom he is
subordinate;
(b)
Prosecution for certain offences against public justice: Of any offence punishable under arty of
the following sections of the same Code, namely Sections 193, 194, 195, 196.
199. 200, 205, 206, 207, 208, 209, 210, 211 and 228, when such offence is
alleged to have been committed in, or in relation to, any proceeding in any
Court, except, on the complaint in writing of such Court or of some other Court
to which such Court is subordinate; or
(c)
Prosecution for certain offences relating to documents given in evidence: Of any offence described in Section 463
or punishable under Section 471, Section 475 or Section 476 of the same Code,
when such offence is alleged to have been committed by a party to any
proceeding in any Court in respect of a document produced or given in evidence
in such proceeding, except on the complaint in writing of such Court, or of
some other Court to which such Court is subordinate.
(2) In
Clauses (b) and (c) of sub-section (1), the term “Court” includes a Civil,
Revenue or Criminal Court, but does not include a Registrar or sub-Registrar
under the Registration Act, 1908.
(3) For
the purposes of this section, a Court shall be deemed to be subordinate to the
Court to which appeals ordinarily lie from the appeal able decrees or sentences
of such former Court, or in the case of a Civil Court from whose decrees no
appeal, ordinarily lies, to the principal Court having ordinary, original civil
jurisdiction within the local limits of whose jurisdiction such Civil Court, is
situate:---
Provided
that,---
(a)
where appeals lie to more than one Court, the Appellate Court of inferior
jurisdiction shall be the Court to which such Court shall be deemed to be
subordinate; and (b) where appeals tie to a Civil and also to a Revenue Court,
such Court shall be deemed to be subordinate to the Civil or Revenue Court
according to the nature of the case or proceeding in connection with which the
offence is alleged to have been committed.
(4) The
provisions of sub-section (1), with reference to the offences named therein,
apply also to criminal conspiracies to commit such offences and to the abetment
of such offences, and attempts to commit them.
(5)
Where a complaint has been made under sub-section (1) clause (a), by a public
servant, any authority to which such public servant is subordinate may order
the withdrawal of the complaint and, if it does so, it shall forward a copy of
such order to the Court, and upon receipt thereof by the Court, no further
proceedings shall be taken on the complaint
196.
Prosecution for offences against the State: No Court shall take cognisance of any offence punishable
under Chapter VI or IX-A of the Pakistan Penal Code (except Section 127), or
punishable under Section 108-A, or Section 153-A or Section 294-A, or Section
295-A or Section 505 of the same Code, unless upon complaint made by order of
or under authority from, the Federal Government or the Provincial Government
concerned, or some officer empowered in this behalf by either of the two
Governments.
196-A.
Prosecution for certain classes of criminal conspiracy:
(1) in a
case where the object of the conspiracy is to commit either an illegal act
other than an offence, or a legal act by illegal means, or an offence to which
the provisions of Section 196 apply, unless upon complaint made by order or
under authority from the Federal Government or the Provincial Government concerned
or some officer empowered in this behalf by either of the two Governments, or
(2) in a
case where the object of the conspiracy is to commit any non-cognizable
offence,
or a
cognizable offence not punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, unless the Provincial
Government or [Officer in-charge of the prosecution in the district] empowered
in this behalf by the Provincial Government, has, by order in writing,
consented to the initiation of the proceedings:---
Provided
that where the criminal conspiracy is one to which the provisions of
sub-section (4) of Section 195 apply no such consent shall be necessary.
Subs.
by the by the Ordinance, XXXVII of 2001, dt,
196-B.
Preliminary inquiry in certain cases: In
the case of any offence in respect of which the provisions of Section 196 or
Section 196-A apply, [officer in-charge of the investigation in the district]
may, notwithstanding anything contained in those sections or in any other part
of this Code, order a preliminary investigation by a police-officer not being
below the rank of inspector, in which case such police-officer shall have the
powers referred to in Section 155, sub-section (3).
Subs.
by the by the Ordinance, XXXVII of 2001, dt.
197.
Prosecution of Judges and public servants: (1) When any person who is a Judge within the meaning of
Section 19 of the Pakistan Penal Code, or when any Magistrate, or when any
public servant who is not removable from his office save by or with the
sanction of the Federal Government or a Provincial Government, is accused of
any offence alleged to have been committed by him while acting or purporting to
act in the discharge of his official duty, no Court shall take cognizance of
such offence except with the previous sanction-- .
(a) in
the case of a person employed in connection with the affairs of the Federation
of the President; and
(b) in
the case of a person employed in connection with the affairs of a Province, of
the Governor of that Province.
(2)
Power of President or Governor as to prosecution: The President or Governor, as the case
may be, may determine the person by whom, the manner in which, the offence or
offences for which, the prosecution of such Judge, Magistrate or public servant
is to be conducted, and may specify the Court before which the trial is to be
held.
198.
Prosecution for breach of contract, defamation and offences against marriage: No Court shall take cognizance of an
offence falling under Chapter XIX or Chapter XXI of the Pakistan Penal Code or
under Sections 493 to 496 (both inclusive) of the same Code, except upon a
complaint made by some person aggrieved by such offence:---
Provided
that, where the person so aggrieved is a woman who, according to the customs
and mariners of the country, ought not to be compelled to appear in public, or
were such person is under the age of eighteen years or is an idiot or lunatic,
or is from sickness or infirmity unable to make a complaint, some other person
may, with the leave of the Court, make a complaint on his or her behalf:---
Provided
further that where the husband aggrieved by an offence under Section 494 of the
said Code is serving in any of the armed forces of Pakistan under conditions,
which are certified by the commanding Officer as precluding him from obtaining
leave of absence to enable him to make a complaint in person, some other person
authorised by the husband in accordance with the provisions of sub-section (I)1
of Section 199-B may, with the leave of the Court, make a complaint on his
behalf.
[198-A.
Prosecution for defamation against public servants in respect of their conduct
in the discharge of public functions: (1)
Notwithstanding anything contained in this Code, when any offence falling under
Chapter XXI of the Pakistan Penal Code (Act XLV of 1860) is alleged to have
beam committed against the President, the Prime Minister, a Federal Minister,
Minister of State, Governor, Chief Minister or Provincial Minister or any
public servant employed in connection with the affairs of the Federation or of
a Province, in respect of his conduct in the discharge of his public functions,
a Court of Session may take cognizance of such offence, without the accused
being committed to it for trial, upon a complaint in writing -made by the
Public Prosecutor.
(2)
Every such complaint shall set forth the facts which constitute the offence
alleged, the nature of such offence and such other particulars as are
reasonably sufficient to give notice to accused of the offence alleged to have
been committed by him.
(3) No
complaint under sub-section (1) shall be made by the Public Prosecutor except
with the previous sanction (a) in the case of the President or the Prime
Minister or a Governor, or any Secretary to the Government authorised by him in
this behalf; (b) in the case of a Federal Minister or Minister of State, Chief
Minister, or Provincial Minister, of any secretary to the Government authorised
in this behalf by the Government concerned; (c) in the case of any public
servant employed in connection with the affairs of the Federation or of a
Province, of the Government concerned.
(4) No
Court of Session shall take cognizance of an offence under sub-section (1),
unless the -complaint is made within six months from the date on which the
offence is alleged to have been committed. .
(5) When
the Court of Session takes cognizance of an offence under sub-section (1), then
notwithstanding anything contained in this Code, the Court of Session shall try
the case without the aid of jury or assessors and in trying the case shall
follow the procedure prescribed for the trial by Magistrates of warrant cases
instituted otherwise than on a police report.
(6) The
provisions of this section shall be in addition to, and not in derogation of
those of Section 198.]
Section
198-A inst. by Criminal Procedure (Amendment) Act, XXV of 1974, S-7.
[199.
Prosecution for adultery or enticing a married woman: No Court shall take cognizance of an
offence under Section 497 or Section 498 of the Pakistan Penal Code, except--
(a)
upon a report in writing made by a police-officer on the complaint of the
husband of the woman, or in his absence, by some person who had care of such
woman on his behalf at that time when such offence was committed; or
(b)
upon a complaint made by the husband of the woman or, in his absence, made with
the leave of the Court by some person who had care of such woman on his behalf
at the time when such offence was committed:---
Provided
that, where such husband is under the age of eighteen years, or is an idiot or
lunatic, or is from sickness or infirmity unable to make a complaint, some
other person may, with the-leave of the Court, make a complaint on his behalf:---
Provided
further that where such husband is serving in any of the armed forces of
Pakistan, under conditions which are certified by his Commanding Officer as
precluding him from obtaining leave of absence to enable him to make a
complaint in person and where for any reason no complaint has been made by a
person having care of the woman as aforesaid, some other person authorised by
the husband in accordance with the provisions of sub-section (1) of Section
199-B may, with the leave of the Court, make a complaint on his behalf.]
S.
199 subs. by Law Reforms Ordinance, XII of 1972.
[199-A.
Objection by lawful guardian to complaint by person other than person
aggrieved: When
in any case falling under Section 198 or Section 199 the person on whose behalf
the complaint is ought to be made is under the age of eighteen years or is a
lunatic, and the person applying for leave has not been appointed or declared,
by competent authority to be the guardian of the person of the said minor or
lunatic, and the Court is satisfied that there is a guardian, so appointed or
declared, notice shall be given to such guardian, and the Court shall, before
granting the application give him a reasonable opportunity of objecting to the
granting thereof.]
S.
199-A Inst. by the Code of Criminal Procedure (Second Amendment) Act, XVIII of
1923.
[199-B.
Form of authorisation under second proviso to Section 198 or 199: (1) The authorisation of a husband given
to another person to make a complaint on his behalf under the second proviso to
Section 198 or the second proviso to Section 199 shall be in writing, shall be
signed or, otherwise attested by the husband, shall contain a statement to the
effect that he has been informed of the allegations upon which the complaint is
to be founded, shall be” countersigned by the Officer referred to in the said
provisos, and shall be accompanied by a certificate signed by that officer to
the effect that leave of absence for the purpose of making a complaint in
person cannot for the time being be granted to the husband.]
(2) Any
document purporting to be such an authorisation and complying with the provisions
of sub-section (1), and any document purporting to be a certificate required by
that sub- section shall, unless the contrary is proved, be presumed to be
genuine and shall be received in evidence.
Section
199-B inst. By the Code of Criminal Procedure (Second Amendment) Act, XVIII of
1943.
CHAPTERXVI
OF
COMPLAINTS TO MAGISTRATES
200.
Examination of complainant: A
Magistrate taking, cognizance of an offence on complaint shall at once examine
the complainant upon oath, and the substance of the examination shall be
reduced to writing and shall be signed by the complainant, and also by the
Magistrate:---
Provided
as follows:---
(a) when
the complaint is made in writing, nothing herein contained shall be deemed to
require a Magistrate to examine the complainant before transferring the case
under Section 192 [or sending it to the Court of Session];
(aa)
when the complaint Is made in writing nothing herein contained shall be deemed
to require the examination of a complainant in any case in which the complaint
has been made by a Court or by a public servant acting or purporting to act in
the discharge of his official duties;
(b)
[Omitted A.O., 1949,Sch.];
(c) when
the case has been transferred under Section 192 and the Magistrate so
transferring it has already examined the complainant, the Magistrate to whom it
is so transferred shall not be bound to re-examine the complainant.
Words
added by Law Reforms Ordinance. XII of 1972
201.
Procedure by Magistrate not competent to take cognizance of the case: (1) If the complaint has been made
in/writing to a Magistrate-who is not competent to take cognizance of the case,
he shall return the complaint for presentation to the proper Court with an
endorsement to that effect.
(2) If
the complaint has not been made in writing, such Magistrate shall direct the
complainant to the proper Court.
[202.
Postponement of issue of process: (1) Any Court, on receipt of a complaint of an offence of
which it is authorised to take cognizance; or which has been sent to it under
Section 190, sub-section (3), or referred to it under Section 191 or-Section
192, may, if it thinks fit, for reasons to be recorded, postpone tbe4ssueor
process for compelling the attendance of the person complained against, and
either inquire into the case itself or direct any inquiry or investigation to
be made by [any Justice of the Peace or by] a police officer or by such other
person as it thinks fit, for the purpose of ascertaining the truth or falsehood
of file complaint:---
Provided
that save, where the complaint has been made by a Court, no such direction
shall be made unless the complainant has been examined on oath under the
provisions of Section 200.
(2) A
-Court of Session may, instead of directing an investigation under the
provisions of sub-section (1), direct the investigation to be made by any
Magistrate subordinate to it for the purpose of ascertaining the truth or
falsehood of the complaint.
(3)
If any inquiry or investigation under this section is made by a person not
being a Magistrate [or Justice of the Peace] or a police officer, such person
shall exercise all the powers conferred by this Code on an officer-in-charge of
a police station, except that he shall not have power to arrest without
warrant.
(4)
Any Court inquiring into a case under this section may, if it thinks fit, take
evidence of witnesses on oath].
Section
202 Substituted by item No. 79 (ii) of Punjab Notification No. SO(J-II) 1-8/75
(P-V), dated 21.3.1996 for
and
by same Item No. of Islamabad Notification No. S.R.O. 255 (I)/96, dated
203.
Dismissal of complaints: [The
Court], before whom a
complaint is made or to whom it has been transferred, 2s[or sent] may dismiss
the complaint, if, after considering the Statement on oath (if any) of the
complainant and the result of the investigation or inquiry (if any) under
Section 202 there is in his judgment no sufficient ground for proceeding. In
such cases he shall briefly record his reasons for so doing.
Words
subs. by Law Reforms Ordinance, XII of 1972.
CHAPTER
XVII
OF
THE COMMENCEMENT OF PROCEEDINGS BEFORE [COURT]
204.
Issue of process: (1)
If in the opinion of a [Court] taking cognizance of an offence there is
sufficient ground of proceeding, and the case appears to be one in which,
according to the fourth column of the Second Schedule, a summons should issue
in the first instance, [it] shall issue his summons for the attendance of the
accused. If the case appears to be one in which, according to that column, a
warrant should issue in the first instance, [it] may issue a warrant, or, if
[Court] or if [it] thinks fit, a summons, for causing the accused to be brought
or to appear at a certain time before such [Court] if as if it has no
jurisdiction itself some other Court having jurisdiction.
(2)
Nothing in this section shall be deemed to affect the provisions of Section 90.
(3) When
by any law for the time being in force any process-fees or other fees are
payable, no process shall be issued until the fees are paid, and if such fees
are not paid within a reasonable time, the Court may dismiss the complaint.
Words
added by Item No. 79-A of Punjab Notification No. SO(J-ll) 1-8/75 (P-V), dated
same
Item No- of Islamabad Notification No. SRO No. 255 (l)/96, dated
Words
inserted/subs. by Law Reforms Ordinance, XIl of 1972.
205.
Magistrate may dispense with personal attendance of the accused: (1) Whenever a magistrate issues a
summons, he may, if he sees reasons so to do, dispense with the personal
attendance of the accused, and permit him to appear by his pleader.
(2) But
the Magistrate inquiring into or trying the case may, in his discretion at any
stage of the proceedings, direct the personal attendance of the accused, and,
if necessary, enforce such attendance in manner hereinbefore provided.
CHAPTER
XVHI
OF
INQUIRY INTO CASES TRIABLE BY THE COURT OF SESSION OR
HIGH
COURT
206 to
220. [Omitted by Law Reforms Ordinance, XII of 1972].
CHAPTER
XIX
OF
THE CHARGE
Form
of Charges
221.
Charge to state offence: (1)
Every charge under this Code shall state the offence with which the accused is
charged.
(2)
Specific name of offence sufficient description: if the law, which creates the offence,
gives it any specific name, the offence may be-described in the charge by that
name only.
(3)
How stated where offence has no specific name: If the law which creates the offence
does not give it any specific name, so much of the definition of the offence
must be stated as to give the accused notice of the matter with which he is
charged.
(4) The
law and section of the law against which the offence is said to have been
committed shall be mentioned in the charge.
(5)
What implied in charge: The
fact that the charge is made is equivalent to a statement, that every legal
condition required by law, to constitute the offence charged was fulfilled in
the particular case.
(6)
Language of charge: The
charge shall be written either in English or in the language of the Court.
(7)
Previous conviction when to be set put: If the accused having been previously convicted of any
offence, Is liable, by reason of such previous conviction, to enhanced
punishment or to punishment of a different kind, for a subsequent offence, and
it is intended to prove such previous conviction for the purpose of affecting the
punishment which the Court may think fit to award for the subsequent offence,
the fact, date and place of the previous conviction shall be stated in the
charge, if such statement has been omitted, the Court may add it any time
before sentence is passed.
Illustrations
(a) A is
charged with the murder of B. This is equivalent to a statement .that As act
fell within the definition of murder given in Sections 299 and 300 of the
Pakistan Penal Code that it did not fall within any of the general exceptions
of the same Code and that It did not fall within any of the five exceptions to
Section 300; or that if it did fall within Exception 1, one or other of the
three provisos to that exception apply to it.
(b) A is
charged, under Section 3?-6 of the Pakistan Penal Code with voluntarily causing
grievous hurt to B by means of an instrument for shooting. This is equivalent
to a statement that the case was not provided for by Section 335 of the
Pakistan Penal Code, and that the general exceptions did not apply to it.
(c) A is
accused of murder, cheating, theft, extortion, adultery or criminal
intimidation or using a false property-mark. The charge may state that A
committed murder or cheating or theft or extortion, or adultery, or criminal;
intimidation or that he use a false property-mark, without referenced the
definitions to those crimes contained in the Pakistan Penal Code but the
sections, under which, the offence is punishable must, in each instance, be
referred to in the charge.
(d) A is
charged under Section 184 of the Pakistan Penal Code with intentionally
obstructing a sale of property offered, for sale by the lawful authority of a
public servant.
The
charge should be in those words.
222.
Particulars as to time, place and person: (1) The charge, shall contain such particulars as to the
time and place of the alleged offence, and the person (if any) against whom, or
the thing (if any) in respect of which, it was committed, as are reasonably
.sufficient to give the accused notice of the matter with which he is charged.
(2) When
the accused is charged with criminal breach of trust or dishonest
misappropriation of money, it shall be sufficient to specify the gross sum in
respect of which the offence is alleged to have been committed, and the dates
between which the offence is alleged to have been committed, without specifying
particular items or exact dates, and the charge so framed shall be deemed to be
a charge of one offence within the meaning of Section 234:---
Provided
that the time included between the first and last of such dates shall not
exceed one year.
223.
When manner of committing offence must be stated: When the nature of the case is such that
the particulars mentioned in Sections 221 and 222 do not give the accused
sufficient notice of the matter with which he is charged, the charge shall also
contain such, particulars of the manner in which the alleged offence was
committed as will be sufficient for that purpose.
Illustrations
(a) A is
accused of the theft of a certain article at a certain time and place. The
charge need not set out the manner in which the theft was affected.
(b) A is
accused of cheating B at a given time and place, the charge must set out the
manner in which A cheated B.
(c) A is
accused of giving false evidence at a given time and place. The charge must set
out, that portion of the evidence given by A which is alleged to be false.
(d) A is
accused of obstructing B, a public servant, in the discharge of his public
functions at a given time and place. The charge must set out the manner in which
A obstructed B in the discharge of his functions.
(e) A is
accused of the murder of B at a given time and place. The charge need not state
the manner in which A murdered B,
(f) A is
accused of disobeying a direction of the law with intent to save from punishment.
The charge must set out the disobedience charged and the law infringed.
224.
Words in charge taken in sense of law under which offence is punishable: In every charge words used in describing
an offence shall be deemed to have been used in the sense attached to them
respectively by the law under which such offence is punishable.
225.
Effect of errors: No
error in stating either the offence or the particulars required to be stated in
the charge, and no omission to state the offence or those particulars, shall be
regarded at any stage of the case as material, unless the accused was in fact
misled by such error or omission, and it has occasioned a failure of justice.
Illustrations
(a) A is
charged under Section 242 of the Pakistan Penal Code, with “having been in
possession of counterfeit coin, having known at the time when he became
possessed thereof that such coin was counterfeit,” the word “fraudulently”
being omitted in the charge. Unless it appears that A was in fact misled by
this omission, the error shall not be regarded as material,
(b) A is
charged with cheating B, and the manner in which he cheated B is not set out in
the charge, or is set out incorrectly. A defends himself, calls witnesses and
gives his own account of the transaction. The Court may infer from this that
the omission to set out the manner of the cheating is not material.
(c) A is
charged with cheating B, and the manner in which he cheated S is not set out in
the charge. There were many transactions between A and B and A had no means of
knowing to which of them the charge referred and offered no defence. The Court
may infer from such facts that the omission to set out the manner of the
cheating was, in the case a material error.
(d) A is
charged with the murder of Khuda Bakhsh on
(e) A
was charged with murdering Haider Bakhsh on the 20th January, 1882, and Khuda Bakhsh (who
tried to arrest him for that murder) on the 21st January, 1882. When charged
for the murder of Haider Bakhsh. he was tried for the murder of Khuda Baksh-
The witnesses present in his defence were witnesses in the case of Haider
Bakhsh- The Court may infer from this that A was misled, and that the error was
material.
226.
Procedure on commitment without charge or with imperfect or erroneous charge:
[Omitted
by Law Reforms Ordinance, XIl of 1972].
227.
Court may alter charge: (1)
Any Court may alter or add to any charge at any time before judgment is
pronounced.
(2)
Every such alteration or addition shall be read and explained, to the accused.
228.
When trial may proceed immediately after alteration: If the charge framed or alteration or
addition made under Section 227 is such that proceeding immediately with the
trial is not likely, in the opinion of the Court, to prejudice the accused in
his defence or the prosecution in the conduct of the case, the Court may, in
its discretion, after such charge or alteration or addition has been framed or
made, proceed with the trial as if the new or altered charge had been the
original charge.
229.
When new trial may be directed or trial suspended: If the new or altered or added charge is
such that proceeding immediately with the trial is likely, in the opinion of
the Court, to prejudice the accused or the prosecutor as aforesaid, the Court
may either direct a new trial or adjourn the trial for such period as may be
necessary.
230.
Stay of proceedings If prosecution of offence in altered charge require
previous sanction: If
the offence stated in the new or altered or added charge is one for the
prosecution of which previous Sanction is necessary, the case shall not be
proceeded with until such sanction is obtained, unless sanction has been
already obtained for a prosecution on the same facts as those on which the new
or altered charge is founded.
231.
Recall of witnesses which charge altered: Whenever a charge is altered or added to by the Court after
the commencement of the trial, the prosecutor and the accused shall be allowed
to recall or resummon, and examine with reference to such alteration or
addition, any witness who may have been examined, and also to call any further
witness whom the Court may think to be material.
232.
Effect of material error: (1)
If any Appellate Court, or the High Court [or the Court of Session] in
the exercise of its powers of revision or of its powers under Chapter XXVII is
of opinion that any person convicted of an offence was misled in his defence by
the absence of a charge or by an error in the charge, it shall direct a new
trial to be had upon a charge framed in whatever manner it thinks fit.
(2) If
the Court is of opinion that the facts of the case are such that no valid
charge could be preferred against the accused in respect of the facts proved,
it shall quash the, conviction.
Illustration
A is
convicted of an offence, under Section 196 of the Pakistan Penal Code, upon a
charge which omits to state that he knew the evidence, which he corruptly used
or attempted to use ;as true or genuine, Was false or fabricated, if the Court
thinks it probable that A had such knowledge, and that he was misled in his
defence by the omission from the charge of the statement that he had it, it
shall direct a new trial upon an amended charge but if it appears probable from
the proceedings that A had no such knowledge, it shall quash the conviction.
Word
inserted by Law Reforms Ordinance, XII of 1972.
Joinder
of charges
233.
Separate charged for distinct offences: For every distinct offence of which any person is accused
there shall be a separate charge, and every such charge shall be tried
separately except in the cases mentioned in Sections 234, 235, 236 and 239.
Illustrations
A is
accused of a theft on one occasion, and of causing grievous hurt on another
occasion. A must be separately charged and separately tried for the theft and
causing grievous hurt.
234.
Three offences of same kind within year may be charged together: (1) When a person is accused of more
offences than one of the same kind committed within the space of twelve months
from the first to the last of such offences, whether in respect of the same
person or not, he may be charged with, and tried at one trial for, any number
of them not exceeding three.
(2)
Offences are of the same kind when they are punishable with the same amount of
punishment under the same section of the Pakistan Penal Code or of any special
or local law:---
Provided
that, for the purpose of this section, an offence punishable under Section 379
of the Pakistan Penal Code shall be deemed to be an offence of the same kind as
an offence punishable under Section 380 of the said Code, and that an offence
punishable under any section of the Pakistan Penal Code, or of any special or
local law, shall be deemed to be an offence of the same kind as an attempt to
commit such offence, when such an attempt is an offence.
235.
Trial for more than one offence: (1)
If, in one series of acts so connected together as to form the same
transaction, more offences than one are committed by the same person, he may be
charged with, and tried at one trial for, every such offence-
(2)
Offence falling within two definitions: If the acts alleged constitute an offence falling within
two or more separate definitions of any law in force for the time being by
which offences are defined or punished, the person accused of them may be
charged with, and tried at one trial for; each of such offences.
(3)
Acts constituting one offence, but constituting when combined a different
offence: If several
acts, of which one or more than one would by itself or themselves constitute an
offence, constitute when combined a different offence, the person accused of
them may be charged with, and tried at one trial for the offence constituted by
such acts when combined, and for any offence constituted by any one, or more,
of such acts.
(4)
Nothing contained in this section shall affect the Pakistan Penal Code, Section
71.
Illustrations
to
sub-section (1)—
(a) A
rescues B, a person in lawful custody, and in so doing causes grievous hurt to
C, a constable in whose custody B was. A may be charged with, and convicted of,
offences under Sections 225 and 333 of the Pakistan Penal Code.
(b) A
commits house-breaking by day with intent to commit adultery, and commits in the
house so entered adultery with B’s wife. A may be separately charged with, and
convicted of offences under Sections 454 and 497 of the Pakistan Penal Code.
(c) A
entices B, the wife of C, away from C, with intent to commit adultery with B,
and then commits adultery with her. A may be separately charged with, and
convicted of, offences under Sections 498 and 497 of the Pakistan Penal Code.
(d) A
has in his possession several seals, knowing them to be counterfeit and
intending to use them for the purpose of committing several forgeries
punishable under Section 466 of the Pakistan Penal Code. A may be separately
charged with, and convicted of the possession of each seal under Section 473 of
the Pakistan Penal Code.
(e) With
intent to cause Injury to B, A institutes a criminal proceeding against him,
knowing that there is no just or lawful ground for such proceeding; and also
falsely accuses B of having committed an offence, knowing that there is no Just
or lawful ground for such charges. A may be separately charged with, and
convicted of, two offences under Section 211 of the Pakistan Penal Code.
(f) A,
with intent to cause injury to B, falsely accuses him of having committed an
offence, knowing that there is no just or lawful ground for such charge. On the
trial, A gives false evidence against B. intending thereby to cause B to be
convicted of a capital offence. A may be separately charged with, and convicted
of, offences under Sections 211 and 194 of the Pakistan Penal Code.
(g) A,
with six others, commits the offences of rioting, grievous hurt and assaulting
a public servant endeavouring in the discharge of his duty as such to suppress
the riot. A may be separately charged with, and convicted of, offences under
Sections 147, 325 and 152 of the
(h) A
threatens B. C and D at the same time with injury to their persons with intent
to cause harm to them. A may be separately charged with and convicted of, each
of the three offences under Section 506 of the Pakistan Penal Code.
The
separate charges referred to in illustrations (a) to (h) respectively may be
tried at the same time.
to
sub-section (2)-
(i) A
wrongfully strikes B with a cane. A may be separately charged with and
convicted of, offences under Sections 352 and 323 of the Pakistan Penal Code.
(j)
Several stolen sacks of corn are made over to A and B, who know they are stolen
property, for the purpose of concealing them, A and B thereupon voluntarily
assist each other to conceal the sacks at the bottom of a grain pit. A and B
may be separately charged with, and convicted of, offences under Sections 411
and 414 of the Pakistan Penal Code.
(k) A
exposes her child with the knowledge that she is thereby likely to cause its
death. The child dies in consequence of such exposure. A may be separately
charged with, and convicted of, offences under Section 317 and 304 of the
Pakistan Penal Code, (l) A dishonestly uses a forged document as genuine
evidence, in order to convict B, a public servant, of an offence under Section
167 of the Pakistan Penal Code. A may be separately charged with, and convicted
of, offences under Sections 471 (read with 466) and 196 of the same Code to
sub-section (3)-
(m) A
commits robbery on B, and in doing so voluntarily causes hurt to him. A may be
separately charged with, and convicted of, offences under Sections 323, 392 and
394 of the
236.
When it is doubtful what offence has been committed: If a single act or series of acts is of
such a nature that it is doubtful which of several offences, the facts which
can be proved will constitute the accused may be charged with having committed
all or any of such offences, and any number or such charges may be tried at
once; or he may be charged in the alternative with having committed some one of
the said offences.
Illustrations
(a) A is
accused of an act, which may amount to theft, or receiving stolen property, or
criminal breach of trust or cheating. He may be charged with theft, receiving
stolen property, criminal breach of trust and cheating, or he may be charged
with having committed theft, or receiving stolen property, or criminal breach
of trust or cheating.
(b) A
states on oath before the Magistrate that he saw B hit C with a club. Before
the Sessions Court A states on oath that B never hit C. A may be charged in the
alternative and convicted of intentionally giving false evidence, although It
cannot be proved when of these contradictory statements was false.
237.
When a person Is charged with one offence, he can be convicted of another: (1) If, in the case mentioned in Section
236, the accused is charged with one offence, and it appears in evidence that
he committed a different offence for which he might have been charged under the
provisions of that section, he may be convicted of the offence which he is shown
to have committed, although he was not charged with it.
(2)
[Rep. by the Code of Criminal Procedure (Amendment) Act, 1923 (18 of 1923),
Section 63].
Illustration
A is
charged with theft. It appears that he committed the offence of criminal breach
of trust, or that of receiving stolen goods. He may be convicted of criminal
breach of trust or of receiving stolen goods (as the case may be) though he was
not charged with such offence.
238.
When offence proved included in offence charged: (1) When a person is charged with an
offence consisting of several particulars, a combination of some only of which
constitutes a complete minor offence, and such combination is proved, that the
remaining particulars are not proved, he may be convicted of the minor offence,
though he was not charged with it.
(2) When
a person is charged with an offence and facts are proved which reduce it to a
minor offence, he may be convicted of the minor offence, although he Is not
charged with it.
(2-A)
When a person is charged with an offence, he may be convicted of an attempt to
commit such offence although the attempt is not separately charged.
(3)
Nothing in this section shall be deemed to authorize a conviction of any
offence referred to in Section 198 or Section 199 when, no complaint has been
made as required by that section.
Illustrations
(a) A is
charged, under Section 407 of the Pakistan Penal Code, with criminal breach of
trust in respect of property entrusted to him as a carrier. It appears, that he
did commit criminal breach of trust under Section
(b) A is
charged, under Section 325 of the Pakistan Penal Code, with causing grievous hurt.
He proves that he acted on grave and sudden provocation. He may be convicted
under Section 335 of that Code.
239.
What persons may be charged jointly: The
following persons may be charged and tried together, namely;
(a)
persons accused of the same offence committed, in the course of the same
transaction
(b)
persons accused of an offence and persons accused of abetment, or of an attempt
to commit such offence;
(c)
persons accused of more than one offence of the same kind, within the meaning
of Section 234 committed by them jointly within the period of twelve months;
(d)
persons accused of different offences committed in the course of the same
transaction
(e)
persons accused of an offence which includes theft, extortion, or criminal
misappropriation, and persons accused of receiving, or retaining, or assisting
in the disposal or concealment of, property possession of which is alleged to
have been transferred by any such offence committed by the first-named persons,
or of abetment of or attempting to commit any such last-named offence:
(f)
persons accused of offences under Sections 411 and 414 of the Pakistan Penal
Code or either of those sections in respect of stolen property the possession
of which has been transferred by one offence; and
(g)
persons accused of any offence under Chapter XIl of the Pakistan Penal Code
relating to counterfeit coin, and persons accused of any other offence under
the said Chapter relating to the same coin, or of abetment of or attempting to
commit any such offence and the provisions contained in the former part of this
Chapter shall, so far as may be, apply to all such charges.
240.
Withdrawal of remaining charges on conviction on one of several charges: When a charge containing more heads than
one, is framed against the same person and when a conviction has been had on
one or more of them, the complainant, or the officer conducting the
prosecution, may with the consent of the Court, withdraw the remaining charge
or charges, or the Court of its own accord may stay the inquiry into, or trial
of, such charge or charges- Such withdrawal shall have effect of an acquittal
on such charge or charges, unless the conviction be set aside, in which case
the said Court (subject to the order of the Court of setting aside the
conviction) may proceed with the inquiry into or trial of the charge or charge
so withdrawn.
CHAPTER
XX
OF
THE TRIAL OF CASES BY MAGISTRATES
241.
Procedure in trial of cases: The
following procedure shall be observed by Magistrates in the trial of cases.
[241
-A. Supply of statements and documents to the accused: (1) In all cases instituted upon police
report, except those tried summarily or punishable with fine or imprisonment
not exceeding six months, copies of statements of all witnesses recorded under
Sections 161 and 164 and of the inspection-note- recorded by an investigating
officer on his first visit to the place of occurrence, shall be supplied free
of cost to the accused not less than seven days before the commencement of the
trial:---
Provided
that, if any part of the statement recorded under Section 161 is such that its
disclosure to the accused would be inexpedient in the public interest, such
part of the statement shall be excluded from the copy of the statement
furnished to the accused.
(2)
In all cases instituted upon a complaint in writing, the complainant shall--
(a)
state in the petition of complaint the substance of the accusation, the names
of his witnesses and the gist of the evidence which he is likely to adduce at
the trial; and
(b)
within three days of the order of the Court under Section 204 for issue of
process to the accused, file in the Court for supply to the accused, as many
copies of the complaint and any other document which he has filed with his
complaint as the number of the accused:---
Provided
that the provisions of this sub-section shall not apply in any case in which
the complaint has been made by a Court or by a public servant acting or
purporting to act in discharge of his official duties],
Section
241-A added by Law Reforms Ordinance, XIl of 1972.
242.
Charge to be framed: When
the accused appears or is brought before the Magistrate, a formal charge shall
be framed relating to the offence of which he is accused and he shall be asked
whether he admits that he has committed the offence with which he is charged.
243.
Conviction on admission of truth of accusation: If the accused admits that he has
committed the offence [with which he is charged], his admission shall be
recorded as nearly as possible in the words used by him; and, if he shows no
sufficient cause why he should not be convicted, the Magistrate may convict him
accordingly.
Words
subs- by Law Reforms Ordinance, XII of 1972.
244.
Procedure when no such admission is made: (1) If the Magistrate does not convict the accused under
the preceding section or if the accused does not make such admission, ‘the
Magistrate shall proceed to hear the complainant (if any), and take all such
evidence as may be produced In support of the prosecution, and also to hear the
accused and take all such evidence as he produces in his defence:---
Provided
that the Magistrate shall not be bound to hear any person as complainant in any
case in which the complaint has been made by a Court.
(2)The
Magistrate may, if he thinks fit on the application of the complainant or
accused issue a summons to any witness directing him to attend or to produce
any document or other thing.
(3) The
Magistrate may, before summoning any witness on such application, require that
his reasonable expenses, incurred in attending for the purposes of the trial,
be deposited in Court:---
Provided
that it shall not be necessary for the accused to deposit any such expenses in
Court in cases where he is charged with an offence punishable with imprisonment
exceeding six months.
244-A.
Statement made under Section 164: The
statement of a witness duty recorded under Section 164, if it was made in the
presence of the accused and if he had notice of it and was given, an
opportunity of cross-examining the witness, may in the discretion of the Court,
if such witness is produced and examined, be treated as evidence in case for
all purposes subject to the provisions of the Qanun-e-Shahadat, 1984.
245.
Acquittal: (1) If the
Magistrate upon taking the evidence referred to in Section 244 and such further
evidence (if any) as he may, of his own motion, cause to be produced, and (if
he thinks fit) examining the accused, finds the accused not guilty, he shall
record an order of acquittal.
(2)
Sentence: Where the
Magistrate does not proceed in accordance with the provisions of Section 349 he
shall if he finds the accused guilty, pass sentence upon him according to taw.
245-A.
Procedure in cases of previous convictions: In a case where a previous conviction is charged under the
provisions of Section 221, sub-section (7), and the accused does not admit that
he had been previously convicted as alleged in the charges the Magistrate may,
after he has convicted the accused under Section 243, or under Section 245,
sub-section (2), take evidence in respect of the alleged previous conviction,
and if he does so, shall record a finding thereon.
246.
[Omitted by Law Reforms Ordinance, XII of 1972].
247.
Non-appearance of complainant: If
the summons has been issued on complaint, and upon the day appointed for the
appearance of the accused, or any day subsequent thereto to which the hearing
may be adjourned, the complainant does not appear, the Magistrate shall,
notwithstanding anything hereinbefore contained, acquit the accused, unless for
some reasons he thinks proper to adjourn the hearing of the case to some other
day:---
Provided
that, where the complainant is a public servant and his personal attendance, is
not required, the Magistrate may dispense with his attendance, and proceed with
the cage:---
Provided
further that nothing in this section shall apply where the offence of which the
accused is charged is either cognizable or non-compoundable.
248.
Withdrawal of complaint: If a complainant, at any time before a final order is:
passed in any case
under this Chapter satisfies the Magistrate that there are sufficient grounds
for permitting him to withdraw his complaint the Magistrate may permit him to
withdraw the same, and shall thereupon acquit the accused.
249.
Power to stop proceeding when no complaint: In any case instituted otherwise than upon complaint, a
Magistrate of the First Class, or with the previous-sanction of the Sessions
Judge, any other Magistrate may for reasons to be recorded by him, stop the
proceedings at any stage without pronouncing any judgment either of acquittal
or conviction; and may thereupon release the accused.
249-A.
Power of Magistrate to acquit accused at any stage: Nothing in this Chapter shall be deemed
to prevent a Magistrate from acquitting an accused at any stage of the case if
after hearing the prosecutor and the accused and for reasons to be recorded, he
considers that the charge is groundless or that there is no probability of the
accused being convicted of any offence.
Frivolous
Accusations in cases tried by Magistrate
250.
False, frivolous or vexatious accusations: (1) If in any case instituted upon complaint or upon
information given to a police-officer or to a Magistrate, one or more persons
is or are accused before Magistrate of any offence triable by a Magistrate, and
the Magistrate by whom the case is heard acquits all or any of the accused, and
is of opinion that the accusation against them or any of them was false and
either frivolous or vexatious, the Magistrate may, by his order of acquittal,
if the person upon whose complaint or information the accusation was made is
present, call upon him forthwith to show cause why he should not pay
compensation to such accused or to each or any of such accused when there are
more than one, or if such person is not present direct the issue of a summons
to him to appear and show cause as aforesaid.
(2) The
Magistrate shall record and consider any cause which such complainant or
informant may show and if he is satisfied that the accusation was false and
either frivolous or vexatious may, for reasons to be recorded, direct that
compensation to such amount not exceeding twenty-five thousand rupees or, if
the Magistrate is a Magistrate Of the Third Class not exceeding two thousand
and five hundred rupees as he may determine be paid, by such complainant or
informant to the accused or to each or any of them.
(2-A)
The compensation payable under sub-section (2) shall be recoverable as an
arrear of land-revenue.
(2-B)
When any person is imprisoned under sub-section (2-A) the provisions of
Sections 68 and 69 the Pakistan Penal Code shall, so far as may be, apply.
(2-C) No person who has been directed to pay compensation under this section
shall, by reason of such order, be exempted from any civil or criminal
liability in respect of the complaint made or information given by him:---
Provided
that any amount paid to an accused person under this section shall be taken
into account in awarding compensation to such person in any subsequent civil
suit relating to the same matter.
(3) A
complainant or informant who has been ordered under sub-section (2) by a
Magistrate of the Second or Third Class to pay compensation or has been so
ordered by any other Magistrate to pay compensation exceeding fifty rupees may
appeal from the order, in so far as the order relates to the payment of the
compensation, as if such complainant or informant had been convicted on a trial
held by such Magistrate.
(4) When
an order for payment of compensation to an accused person is made in a case
which is subject to appeal under sub-section (3), the compensation shall not be
paid to him before the period allowed for the presentation of the appeal has
elapsed, or, if an appeal is presented, before the appeal has been decided and,
where such order is made in a case which is not so subject to appeal, the
compensation shall not be paid before the expiration of one month from the date
of the order.
(5)
[Rep. by the Code of Criminal Procedure (Amendment) Act, 7923 (XVHI of 192, S.
69.
250-A.
Special summons in case of petty offences: (1) Any Magistrate of the first
Class specially empowered in this behalf by the Provincial Government taking
cognizance of any offence punishable only with fine shall, except for reasons
to be recorded in writing, issue summons to the accused requiring him either to
appear before him on a specified date in person or by an advocate or, if he
desires to plead guilty to the charge, without appearing before the Magistrate,
to transmit to the Magistrate before the specified date, by registered post or
through a messenger, the said plea in writing and the amount of fine specified
in the summons or, if he desires to appear by an advocate and to plead guilty
to the charge, to authorise, in writing such advocate to plead guilty to the
charge on his behalf and to pay the fine:---
Provided
that the amount of the fine specified in such summons shall not be less than
twenty-five per cent. nor more than fifty per cent. of the maximum fine
provided for such offence.
(2)
Sub-section (1) shall not apply to an offence punishable under the Motor Vehicles
Ordinance, 1965 (Ordinance XIX of 1965), or under any other law, which provides
for the accused person being convicted in his absence on a plea of guilty.
CHAPTER
XXI
OF
THE TRIAL OF WARRANT CASES BY MAGISTRATES
251
& 259. [Omitted by Law Reforms Ordinance, XII of 1972].
CHAPTER
XXII
OF
SUMMARY TRIALS
260.
Power to try summarily: (1)
Notwithstanding anything contained in this Code--
(a)
[Omitted by Law Reforms Ordinance, XII of 1972],
(b) any
Magistrate of the First Class specially empowered in this behalf by the
Provincial Government, and
(c) any
Bench of Magistrates invested with the powers of a Magistrate of the First
Class and especially empowered in this behalf by the Provincial Government,
may, if he or they think fit, try in a summary way alt or any of the following
offences:
(a)
offences not punishable with death, transportation or imprisonment for a term
exceeding six months;
(b)
offences relating to weights and measures under Sections 264, 265 and 266 of
the Pakistan Penal Code;
(c)
hurt, under clause (i) of section 337-A of the same Code;
(d)
theft under Sections 379, 380 or 381 of the same Code, where the value of the
property stolen does not exceed ten thousand rupees;
(e)
dishonest misappropriation of property under Section 403 of the same Code,
where the value of the property misappropriated does not exceed so ten thousand
rupees;
(f)
receiving or retaining stolen property under Section 411 of the same Code,
where the value of such property does not exceed ten thousand rupees;
(g)
assisting in the concealment or disposal of stolen property, under Section 414
of the same Code, where the value of such property does not exceed ten thousand
rupees;
(h)
mischief, under Section 247 of the same Code;
(i)
house-trespass, under Section 448, and offences under Sections 451, 453, 454,
456 and 457 of the same Code-
(j)
insult with intent to provoke a breach of the peace, under Section 504 and
criminal intimidation, under Section 506 of the same Code;
(jj)
offence of personation at an election under Section 171-F of the same Code;
(k)
abetment of any of the foregoing offences;
(l) an
attempt to commit any of the foregoing offences, when such attempt is an
offence;
(m)
offences under Section 20 of the Cattle-Trespass Act, 1871.
Proviso:
[Omitted by Law Reforms Ordinance, XII of 1972].
(2) When
in the course of a summary trial it appears to the Magistrate or Bench that the
case is one which is of a character which renders it undesirable that it should
be tried summarily, the Magistrate or Bench shall recall any witnesses who may
have been examined and proceed to rehear the case in manner provided by this
Code.
261.
Power to invest Bench of Magistrates invested with less powers: The Provincial Government may on the
recommendation of: High Coon confer on any Bench of Magistrates invested with
the powers of a Magistrate of the Second or Third Class power to try summarily
all or any of the following offences:
(a)
offences against the Pakistan Penal Code, Sections 277. 278, 279, 285, 286,
289. 290, 292, 293, 294, 337-A (i), 337-L (2), 337-H (2), 341, 352, 426, 447
and 504;
(b)
offences against Municipal Acts, and the conservancy clauses of Police Acts
which are punishable only with fine or with imprisonment for a term not
exceeding one month with or without fine ;
(c)
abetment of any of the foregoing offences ;
(d) an
attempt to commit any of the foregoing offences when such attempt is an
offence.
262.
Procedure prescribed in Chapter XX applicable: (1) In trials under this Chapter, the
procedure prescribed in Chapter XX shall be followed except as hereinafter
mentioned.
(2)
Limit of imprisonment: No
sentence of imprisonment for a term exceeding three months shall be passed in
the case of any conviction under this Chapter.
263.
Record in cases where there is no appeal: In cases where no appeal ties, the Magistrate or Bench of
Magistrates need not record the evidence of the witnesses or frame a formal
charge; but he or they shall enter in such form as the Provincial Government
may direct the, following particulars:
(a) the
serial number;
(b) the
date of the commission of the offence;
(c) the
date of the report or complaint;
(d) the
name of the complainant (if any);
(e) the
name, parentage and residence of the accused;
(f) the
offence complained of and the offence (if any), proved, and in cases coming
under clause (d), clause (e), clause (f) or clause (g) of sub-section (1) of
Section 260, the value of the property in respect of which the offence has been
committed;
(g) the
plea of the accused and his examination (if any);
(h) the
finding, and, in the case of a conviction, a brief statement of the reasons
therefore;
(i) the
sentence or other final order; and
(j) the
date on which the proceedings terminated.
264.
Record in appealable cases: (1)
In every case tried summarily by a Magistrate or Bench in which an appeal ties
such Magistrate or Bench shall record the substance of the evidence and also
the particulars mentioned in sub-section 263. 54[and shall, before passing any
sentence, record a judgment in the case.
265.
Language of record and Judgment: (1)
Records made under Section 263 and judgments recorded under Section 264 shall
be written by the Presiding Officer, either in English or in the language of
the Court, or if the Court to Which such Presiding Officer is immediately
subordinate so directs, in such officer’s mother tongue.
(2)
Bench may be authorized to employ clerk: The Provincial Government may authorize any Bench of
Magistrates empowered to try offences summarily to prepare the aforesaid record
or judgment by means of an officer appointed in this behalf by the Court to
which such Bench is immediately subordinate, and the record or judgment so
prepared shall be signed by each member of such Bench present taking part in
the proceedings.
(3) if
no such authorization, be given, the record prepared by a member of the Bench
and signed as aforesaid shall be the proper record.
(4) If
the Bench differ in opinion, any dissentient member may write a separate
judgment.
CHAPTER
XXII-A
TRIALS
BEFORE HIGH COURTS AND COURTS OF SESSION
265-A.
Trials before Court of Session to he conducted by Public Prosecutors: In every trial before a Court of
Session, initiated upon a police report, the prosecution shall be conducted by
the Public Prosecutor.
265-B.
Procedure in cases triable by High Courts and Courts of Session: The following procedure shall be
observed by the High Courts and the Courts of Session in the trial of cases
triable by the said Courts.
265-C.
Supply of statements and documents to the accused: (1) In all cases instituted upon police
report, copies of the following documents shall be supplied free of cost to the
accused not later than seven days before the commencement of the trial,
namely--
(a) the
first information reports
(b) the
police report;
(c) the
statements of all witnesses recorded under Sections 161 and 164; and
(d) the
inspection note recorded by an investigation officer on his first visit, to the
place of occurrence and the note recorded by him on recoveries made, if any:---
Provided
that, If arty part of a statement recorded under Section 161 or Section 464 is
such that its disclosure to the accused would be inexpedient in the public
interest, such part of the statement shall be excluded from the copy of the
statement furnished to the accused.
(2) in
all cases instituted upon a complaint in writing,---
(a) the
complainant shall,---
(i)
state in the petition of complaint the substance of the accusation, the names
of his witnesses and the gist of the evidence which he is likely to adduce at
the trial; and
(ii) within
three days of the order of the Court under Section 204 for issue of process
to the accused, file, in the Court for
supply to the accused as many copies of the complaint and any other document
-which he has filed with his complaint as the number of the accused and
(b)
copies of the complaint, and any other documents which the complainant has
filed therewith and the statement under Section 200 or Section 202 shall be
supplied free of cost to the accused not later than seven days before the
commencement of the trial.
265-D
When charge to be framed: If,
after perusing the police report or, as the case may be, the complaint, and all
other documents and statements filed by the prosecution, the Court is of
opinion that there is ground for proceeding with the trial of the accused it
shall frame in writing a charge against the accused.
265-E.
Plea: (1) The charge
shall be read and explained to the accused, and he shall be asked whether he is
guilty or has any defence to make.
(2)- If
the accused pleads guilty, the Court shall record the plea, and may in its
discretion convict him thereon.
265-F.
Evidence for prosecution: (1)
if the accused does not plead guilty or the Court in its discretion does not
convict him on his plea, the Court shall proceed to hear the complainant (if
any) and take all such evidence as may be produced in support of the
prosecution:---
Provided
that the Court shall not be bound to hear any person as complainant in any case
in which the complaint has been made by a Court.
(2) The
Court shall ascertain from the Public Prosecutor or, as the case may be from
the complainant, the names of any persons likely to be acquainted with the
facts of the case and to be able to give evidence for the prosecution, and
shall summon such persons to give evidence before it.
(3) The
Court may refuse to summon any such witness, if it is of opinion that such
witness is being called for the purpose of vexation or delay or defeating “the
ends of justice. Such ground shall be recorded by the Court in-writing.
(4) When
the examination of the witnesses for the prosecution and the examination pf any
of the accused are concluded, the accused shall be asked whether he means to
adduce evidence.
(5) If
the accused puts in any written statement, the Court shall file it with the
record.
(6) If
the accused, or any one of several accused, says that ha means to adduce
evidence, the Court shall call on the accused to/enter on his defence and
produce his evidence.
(7) If
the accused, or any one of several accused, after entering on his defence,
applies to the Court to issue any process for compelling the attendance of any
witness for examination or the production of any document or other thing, the
Court shall issue such process unless it considers that the application is made
for the purpose of vexation or delay or defeating the ends of justice, such
ground shall be recorded by the Court in writing.
265-G.
Summoning up by prosecutor and defence: (1) in cases Where the accused, or any one of several
accused, does hot adduce evidence in his defence, the Court shall, on the close
of the prosecution case and examination (if any) of the accused, call upon the
prosecutor to sum up his case where after the accused shall make a reply -
(2) In
cases where the accused, or any of the several accused, examines evidence, in
his defence, the Court shall, on the close of the defence case, call upon the
accused to sum up the case whereafter the prosecutor shall make a reply.
265-H.
Acquittal or conviction: (1)
if in any case under this Chapter in which a charge has been framed the Court
finds the accused not guilty, it shall record an order of acquittal.
(2) If
in any case under this Chapter the Court finds the accused guilty the Court
shall/subject to the provisions of Section 265-1, pass a sentence upon him
according to law.
265-I.
Procedure in case of previous conviction: (1) In a case where, by reason of a previous conviction the
accused has been charged under Section 221, sub-section (7), the Court, after
finding the-accused guilty of the offence charged and recording a conviction,
shall record the plea of the accused in relation to such part of the charge.
(2) If
the accused admits that he has been previously convicted as alleged in the
charge, the Court may pass a sentence upon him according to law, and if the
accused does not admit that he has been previously convicted as alleged in the
charge, the Court may take evidence m respect of the alleged previous
conviction, and shall record a finding thereon, and then pass sentence upon him
according to law,
265-J.
Statement under Section 164 admissible: The statement of a witness duly recorded under Section 164,
if it was made in the presence of the accused and if he had notice of it and
was given an opportunity of cross-examining the witness, may, in the discretion
of the Court, if such witness is produced and examined, be treated as evidence
in the case for all purposes Subject to the provisions of the Qanun-e-Shahadat
1984.
265-K.
Power of Court to acquit accused at any stage: Nothing in this Chapter shall be deemed
to prevent a Court from acquitting an accused at any stage of the case, if,
after nearing the prosecutor and the accused and for reasons to be recorded, it
considers that there is not probability of the accused being convicted of any
offence.
265-L.
Power of Advocate-General to stay prosecution: At any stage of any trial before a High
Court under this Code, before the sentence is passed, the Advocate-General may,
if he thinks fit inform the Court on behalf of Government that he will not
prosecute the accused upon the charge; and thereupon alt proceedings against
the accused shall be stayed, and he shall be discharged of and from the same.
But such discharge shall not amount to an acquittal unless the presiding Judge
otherwise directs.
265-M.
Time of holding sittings: For
the exercise of its original criminal jurisdiction, every High Court shall hold
sittings on such days and at such convenient intervals as the Chief Justice of
such Court from time to time appoints.
265-N,
Place of holding sittings: (1)
The High Court shall hold its sittings at the place at which it held them
immediately before the commencement of the Law Reforms Ordinance, 1972, or at
such other place (if any) as the Provincial Government may direct.
(2) But
the High Court, may, from time to time with the consent of the Provincial
Government, hold sittings at such other places within the local limits of its
appellate jurisdiction as the High Court appoints.
(3) Such
officer as the Chief Justice directs shall give prior notice in the official
Gazette of all sittings intended to be held for the exercise of the criminal
jurisdiction of the High Court.
CHAPTER
XXIII
OF
THE TRIALS BEFORE HIGH COURT AND COURTS OF SESSION
266 to
336. Omitted by Law Reforms Ordinance XIl of 1972
CHAPTER
XXIV
GENERAL
PROVISIONS AS TO INQUIRIES AND TRIALS
337.
Tender of pander to accomplice: (1)
In the case of any offence triable exclusively by the High Court or Court of
Session, or any offence punishable with imprisonment which may extend to ten years, or any
offence punishable under Section 211 of the Pakistan Penal Code with
imprisonment which may extend to seven years, or any offence underany of the
following sections of the Pakistan Penal Code, namely, Sections 216-A. 369.
401, 435
and 477-A, [officer incharge of the prosecution in the district] may, at
any stage of investigation or inquiry into or the trial of the offence, with a
view to obtaining the evidence of any person supposed to have been directly or
indirectly concerned in or privy to the offence, tender a pardon to such person
on condition of his making a full and true disclosure of the whole of the
circumstances within his knowledge relative to the offence and to every other
person concerned, whether as principal or abettor, in the commission thereof:---
Provided
that no person shall be tendered pardon who is involved in an offence relating
to hurt or qatl without permission of the victim or as the case may be of the
heirs of the victim.
Proviso:
[Omitted by Federal Laws (Revision and Declaration) Ordinance XXVII of 1981].
(1-A) Every Magistrate who tenders a pardon under sub-section (1) shall record
his reasons, for so doing and shall on application made by the accused, furnish
him. with a copy of such record:---
Provided
that the accused all pay for the same unless the Magistrate for some special
reason thinks fit to furnish it free of cost.
(2)
Every person accepting a tender under this section shall be examined as a
witness in the subsequent trial, if any.
(2-A) In
every case where a person has accepted a tender of pardon and has been examined
under sub-section (2), the Magistrate before whom the proceedings are pending
shall, if he is satisfied that there are reasonable grounds for believing that
the accused is guilty of an offence, commit him for trial to the Court of
Session or High Court, as the case may be-
(3) Such
person, unless he is already on bail, shall be detained in custody until the
termination of the trial.
(4)
[Repealed by Code of Criminal Procedure (Amendment) Act. XVIII of 1923].
Subs.
by Ordinance, XXXVII of 2001. dt
338.
Power to grant tender of pardon: At
any time before the judgment is passed the High Court or the Court of Session
trying the case may, with the view of obtaining on the trial the evidence of
any person supposed to have been directly or indirectly concerned in, or privy
to, any such offence, tender, or order the [officer-in-charge of the
prosecution in the district] to tender a pardon on the same condition to
such person:---
Provided
that no person shall be tendered pardon who is involved in an offence relating
to hurt or qatl; without permission of the victim or. as the base may be, of
the heirs of the victim.
Subs.
by Ordinance, XXXVII of 2001. dt
339.
Commitment of person to whom pardon has been tendered: (l) Where a pardon has-been tendered
under Section 337 or Section 388, and the Public Prosecutor certifies that in
his opinion any person who has accepted such tender has, either by willfully
concealing anything essential or by giving false evidence, not complied with
the condition on which the tender was made such person may be tried for the
offence in respect of which the pardon was so tendered or for any other offence
of which he appears to have been guilty in connection with the same matter:---
Provided
that such person shall not be tried jointly with any of the other accused, and
that he shall be-entitled to plead at such trial that he has complied with the
conditions upon which such tender was made, in which case it shall be for the prosecution
to prove that such conditions have not been complied with.
(2) The
statement made by a person who has accepted a tender of pardon may be-given in
evidence against him at such trial.
(3) No
prosecution for the offence of giving false evidence in respect of such
statement shall be entertained without the sanction of the High Court.
339-A.
Procedure in trial of person under Section 339: The Court trying under Section
(2) If
the accused does so plead, the Court shall record the plea and proceed with the
trial, and, shall, before judgment is passed in the case find whether or not
the accused as complied with the conditions of the pardon, and if it is found
that he has so complied, the Court shall, notwithstanding anything contained in
this Code, pass judgment of acquittal.
340.
Right of person against whom proceedings are instituted to be defended and his
competency to be a witness: (1)
Any person accused of an offence before a Criminal Court, or against, whom
proceedings are instituted under this Code in any such Court, may of right be
defended by a pleader.
(2) Any
person accused of an offence before a Criminal Court or against whom
proceedings are instituted under this Code in any such Court shall, if he does
not plead guilty, give evidence on oath in disproof of the charges or
allegations made against him or any person charged or tried together with him
at the same trial,---
Provided
that he shall not be asked, and, if asked, shall not be required to answer, any
question tending to show that he has committed or been convicted of any offence
other than the offence with which he is charged or for which he is being tried,
or is of bad character, unless.
(i) the
proof that he has committed or been convicted of such offence is admissible in
evidence to show that he is guilty of the offence with which he is charged or
for which he is being tried; or
(ii) He
has personally or by his pleader asked questions of any witness for the
prosecution with a view to establishing his own good character, or has given
evidence of his good character; or
(iii) he
has given evidence against any other person charged wither tried for the same
offence.
341.
Procedure where accused does not understand proceedings: If the accused though not insane, cannot
be made to understand the proceedings, the Court may proceed with the trial;
and-in the case of a Court other than a High Court or if such trial results in
a conviction, the proceedings shell be forwarded to the High Court with a
report of the circumstances of the case, and the High Court shall pass thereon
such order as it thinks fit.
342.
Power to examine the accused: (1)
For the purpose of enabling the accused to explain any .circumstances appearing
in the evidence against him, the Court-may, at any stage of any inquiry or
trial without previously warning the accused, put such questions to him as the
Court considers necessary, and shall, for the purpose aforesaid, question him
generally on the case after the witnesses for the prosecution have been
.examined and before he is called on for his defence;
(2) The
accused shall not render himself liable to punishment by refusing to answer
such questions, or by giving false answers to them; but the Court may draw such
inference from such refusal or answers as it thinks just.
(3) The
answers given by the accused may be taken into consideration in such inquiry or
trial, and put in evidence for or against him in any other inquiry into or
trial for, any other offence which such answers may tend to show he has
committed.
(4)
Except as provided by sub-section (2) of Section 340, no oath shall be
administered to the accused.
343.
No influence to be used to induce disclosures: Except as provided in Section 337 and
338 no influence, by means of any promise or threat or otherwise; shall be used
to an accused person to induce him to disclose or withhold any matter within
his knowledge.
344.
Power to postpone or adjourn proceedings: If, from the absence of a witness, or any other reasonable
cause, it becomes necessary-or advisable to postpone the commencement of, or
adjourn any inquiry or trial, the Court may, if it thinks fit, by order in
writing, stating the reasons therefore, from time to time, postpone or adjourn
the same on such terms as it thinks-fit, for such time as it considers
reasonable and may by a warrant remand the accused if in custody:
Remand:
Provided no Magistrate
shall remand an accused person to custody under this section for a term
exceeding fifteen days at a time.
(2)
Every order made under this section by a Court other than a High Court shall be
in writing signed by the presiding Judge or Magistrate.
Explanation
Reasonable cause for remand: If sufficient evidence has been obtained to raise
a suspicion that the accused may have committed an offence, and it appears
likely that further evidence may be obtained by a remand, this is a reasonable
cause for a remand.
345.
Compounding offence: (1)
The offences punishable under the sections of the Pakistan Penal Code specified
in the first two columns of the table next following may be compounded by the
persons mentioned in the third column of that table:
Offence
Sections of the Pakistan Penal Code applicable Persons by whom offence may be
compounded.
Uttering
words, etc., with deliberate intent to wound the religious feelings of any
person 296. The person whose religious feelings are intended to be wounded.
Wrongfully
restraining or confining any person. 241, 342 the person restrained or
confined.
Assault
or use Of criminal force.
352,
355, 358 The person assaulted or to whom criminal force is used.
Unlawful
compulsory labour. 374 The person compelled to labour.
Mischief
when the only loss or damage caused is loss or damage to a private person.
426, 427
The person to whom the loss or damage is caused.
Criminal
trespass 447
House-trespass
448
The
person in possession of the property trespassed upon.
Dishonestly
issuing a cheque for repayment of loan or fulfillment of an obligation.
489-F
The person in whose favour cheque issued.
Criminal
breach of contract of service.
490,
491, 492 The person with whom the offender has contracted.
Adultery
497 The husband of the woman.
Enticing
or taking away or detaining with criminal intent
498
a
married woman
Defamation
500
Printing
or engraving matter knowing it to be defamatory.
501
The
person defamed.
502
Insult
intended to provoke a breach of the peace.
504 The
person insulted.
Criminal
intimidation except when the offence is punishable with Imprisonment for seven
years.
506 The
person intimidated.
Act
caused by making a person believe that he wilt be an object of divine
displeasure.
508 The
person against whom the offence was committed.
(2) The
offences punishable under the sections of the Pakistan Penal Code specified in
the
first two columns of the table next following may, with the permission of the
Court
before
which any prosecution for such offence is pending, be compounded by the persons
mentioned
in the third column of that table:
Offence
Sections of the Pakistan Penal Code applicable Persons by whom offence may be
compounded.
Qatl-i-amd
302 By the heirs of the victim.
Qatt
under ikram-i-tam 303 Ditto
Qatl-i-amd
not liable to qisas
308
Ditto
Qatt-i-Shibh-i-amd
316 By the heirs of the victim.
Qatt-i-khata
319 Ditto
Qatl-i-khata
by rash or negligent driving.
320
Ditto
Qatl-bis-sabab
322 Ditto
Attempt
to commit Qati-i-amd 324 The person against whom the offence was committed,
Itlaf-i-udw
334 The person to whom is caused,
Itlaf-i-Satahiyyat-i-udw
336 Ditto
Shajjah
of any kinds 337-A Ditto
Jaifah
337-D Ditto
Ghayr-jaifah
of any kind 337-F Ditto
Hurt by
rash or negligent driving 337-G Ditto
Hurt by
rash or negligent act 337-H Ditto
Hurt by
mistake 337-I Ditto
Hurt by
means of a poison. 337-J Ditto
Hurt to
extort confession or to compel restoration of property
337-k
Ditto
Other
hurts 337-L Ditto
Hurt not
liable to qisas 337-M Ditto
Cases in
which qisas for hurt cannot be enforced
337-N
Ditto
Isqat-i-haml
338-A The Victim or the heirs of the victim, as the case may be.
Isqat-janin
338-C The Victim or the heirs of the victim, as the case may be.
Wrongfully
confining a person for three days or more
343 The
person confined
Wrongfully
confining a person in secret-
346
Ditto
Assault
or criminal force in attempting wrongfully to confine a person
357 The
person assaulted or to whom the force was used.
Dishonest
misappropriation of property
403 The
owner of the property misappropriated:
Cheating
417 The person cheated.
Cheating
a person whose interest the offender was bound, by law or by legal contract, to
protect.
418
Ditto
Cheating
by personation 419 Ditto
Cheating
and dishonestly inducing delivery of property or the making, alteration or
destruction of a valuable security.
420
Ditto
Mischief
by injury to work of irrigation by wrongfully diverting water when the only
loss or damage caused is loss or damage to a private person.
430 The
person to whom the loss or damage is caused.
House-trespass
to commit an offence (other than theft) punishable with imprisonment.
451 The
person in possession of the house trespassed upon.
Using a
false trade or property mark.
482 The
person to whom loss or injury is caused by such use.
Counterfeiting
a trade or property mark used by another.
483 The
person whose trade or property mark is counterfeited.
Knowingly
selling or exposing or possessing for sale or for trade or manufacturing
purpose, goods marked with counterfeit trade or property mark.
486
Ditto
Marrying
again during the lifetime of a husband or wife.
494 The husband or wife of the person so
marrying. Uttering
words or sounds or making gestures or exhibiting any object intending to insult
the modesty of a woman or intruding upon the privacy of a woman.
509 The
woman whom it is, intended to insult or whose, privacy is intruded upon.
(3)
When, any offence is compoundable under this section, the abetment of such
offence or an attempt to commit such offence (when such attempt is itself an
offence) may be compounded in, like manner.
(4) When
the person who would otherwise be competent to compound an offence under this
section is under the age of eighteen years or is an idiot or a lunatic, any
person competent to contract on his behalf may with the permission of the Court
compound such offence.
(5) when
the accused has been convicted and an appeal is pending, no composition for the
offence shall be allowed without the leave of the Court before which the appeal
is to be heard.
(5-A) A
High Court acting in the exercise of its powers of revision under Section 439
and a Court of Session so acting under Section 439-A, may allow any person to
compound any offence which he is competent to compound under this section.
(6) The
composition of an offence under this section shall have the effect of an
acquittal of the accused with whom the offence has been compounded.
(7) No
offence shall be compounded, except as provided by this section.
346.
Procedure of Magistrate in cases which he cannot dispose of: (1) If, in the course of an inquiry or
trial before a Magistrate in any district, the evidence appears to him to
warrant a presumption that the ease is one which should be tried or sent for
trial to the Court of Session or the High Court, by some other Magistrate in
such district, he shall stay proceedings and submit the case, with a brief
report explaining its nature, to the Sessions Judge or to such other
Magistrate, having jurisdiction, as the Sessions Judge, directs.
(2) The
Magistrate to whom the case is submitted may, if so empowered, either try the
case himself, or send the case for trial to the Court of Session or the High
Court.
347. Procedure when after commencement
of trial, Magistrate finds case should be tried by Court of Session or High
Court: (1) If, in any
trial before a Magistrate before, signing judgment, it appears to him at any
stage of the proceedings that the case is one which ought to be tried by the
Court of Session or High Court, he shall send the case to the Court of Session
or High Court, for trial.
348.
Trial of persons previously convicted of offences against coinage, stamp-law or
property: (1) Whoever,
having been convicted of an offence punishable under Chapter XII or Chapter
XVII of the Pakistan Penal Code with imprisonment for a term of three years or
upwards is again accused of any offence punishable under either of those
Chapters with imprisonment for a term of three years or upwards, shall if the
Magistrate before whom the case is pending is satisfied that there are
sufficient grounds for the trial of the accused by the Court of Session or High
Court, as the case may be, send the accused for trial to such Court unless the
Magistrate is competent to try the case and is of opinion that he can himself
pass an adequate sentence if the accused is convicted:
Proviso:
[Omitted by Law Reforms Ordinance, XII of 1972].
(2) When
any person is sent for trial to the Court of Session or High Court, under
subsection
(1), any
other person accused jointly with him in the trial shall be similarly sent for
trial.
349.
Procedure when Magistrate cannot pass sentence sufficiently severe: (1) Whenever a Magistrate of the Second
or Third Class, having jurisdiction, is of opinion, after hearing the evidence
for the prosecution and the accused, that the-accused is guilty, and that, he
ought to receive a punishment/different In kind from, or more, severe than,
that which such Magistrate is empowered to inflict, or that he ought to be
required to execute a bond under Section 106, he may record the opinion and
submit his proceedings, and forward the accused to a Magistrate of the First
Class specially empowered, in this behalf by ,,the Provincial Government.
(1-A)
When more accused than one are being tried together and the Magistrate
considers it necessary to proceed under sub-section (1) in regard to any of
such accused, he shall forward all the accused who are in his opinion guilty to
the Magistrate empowered under sub-section (1).
(2) The
Magistrate to whom the proceedings are submitted may, if he thinks fit, examine
the parties and recall and examine any witness who has already given evidence
in the case and may call for and take any further evidence, and shall pass such
judgment, sentence or order in the case as he thinks fit, and as Is according
to law:---
Provided
that he shall not inflict a. punishment more severe than he is empowered to
inflict under Sections 32 and 33.
350.
Conviction or evidence partly recorded by one Presiding Officer and partly by
another: (1) Whenever
any Sessions Judge or Magistrate, after having heard and recorded the whole or
any part of the evidence in an inquiry or a trial, ceases to exercise
jurisdiction therein, and is succeeded by another Sessions Judge or Magistrate
who has and who exercises such jurisdiction, the Sessions Judge or Magistrate
so succeeding may act on the evidence so recorded by his predecessor, or partly
recorded by his predecessor and partly, recorded by himself; or he may resummon
the witnesses an recommence the inquiry or trial;
Provided
that,---
(a)
where the conviction was held before a Sessions Judge, the High Court; and
(b)
where the conviction was held before a Magistrate, the High Court or the Court
of Session may whether there be an appeal or not, set aside any conviction
passed on evidence not-wholly recorded by the Sessions Judge or Magistrate
before whom the conviction was held, if such Court is of opinion that the
accused has been materially prejudiced thereby, and may order as a new inquiry
or trial.
(2)
Nothing in this section applies to cases in which proceedings have been stayed
under Section 346 or in which proceedings have been submitted to a Magistrate
Specially empowered under Section 349.
(3) When
a case is transferred under the provisions of this Code from one Magistrate to
another, the former shall be deemed to cease to exercise-jurisdiction therein,
and to be succeeded by the latter within the meaning of sub-section (1).
350-A.
Changes in constitution of Benches: No
order or judgment of a Bench of Magistrates shall be invalid by reason only of
a change having occurred in the constitution of the Bench in any case in which
the Bench by which such order or judgment is passed, is duly constituted under
Sections 15 and 16, and the Magistrates constituting ;the same have been
present on the Bench throughout the proceedings.
351.
Detention of offenders attending Court: (1) Any person attending a Criminal Court, although not
under arrest or upon a summons, may be detained by such Court for the purpose
of inquiry into or trial of any offence of which such Court can take cognizance
and which, form the evidence, may appear to have been committed, and may be
proceeded against as though he had been arrested or summoned.
(2) When
the detention, takes place after a trial has been begun the proceedings in
respect of such person shall be commenced afresh, and the witnesses reheard-
352.
Courts to be open: The
place in which any Criminal Court is held for the purpose of inquiring into or
trying any offence shall be deemed an open Court, to which the public generally
may have access, so far as the same can conveniently contain them:---
Provided
that the Presiding Judge or Magistrate may, if he thinks tit, order at any
stage of any inquiry into or trial of, any particular case, that the public
generally, or any particular person, shall not have access to, or be or remain
in, the room or building used by the Court.
CHAPTER
XXV
OF
THE MODE OF TAKING AWRECORDING EVIDENCE IN INQUIRIES AND TRIALS
353.
Evidence to be taken in presence of accused: Except as otherwise expressly provided, all evidence taken
under Chapters XX, XXI, XXII and XXIl-A shall be taken in the presence of the
accused, or, when his personal attendance is dispensed with, in presence of his
pleader.
354.
Manner of recording evidence: In
inquiries and trials (other than summary trials) under the Code by or before a
Magistrate or Sessions Judge, the evidence of the witnesses shall be recorded
in the following, manner.
355.
Record in trials of certain cases by First and Second Class Magistrates: (1) In cases tried under Chapter XX or
XXII by a Magistrate of the First or Second Class and in all proceedings under
Section 514 (if not in the course of a trial), the Magistrate shall make a
memorandum of the substance of the evidence of each witness as the examination
of the witness proceeds.
(2) Such
memorandum shall be written and signed by the Magistrate with his Own hand, and
shall form part of the record.
(3) If
the Magistrate is prevented from making a memorandum as above required, he
shall record the reason of his inability to do so, and shall cause such
memorandum to be made in writing from his dictation in open Court, and shall
sign the same and such memorandum shall form part of the record.
356.
Record in other cases: (1)
|n the trials before Courts of Session and in inquiries under Chapter XII the
evidence of each witness shall be taken down in writing in the language of the
Court by the Magistrate or Sessions Judge, or in his presence and nearing and
under his personal direction and superintendence and shall be signed by the
Magistrate or Sessions Judge.
(2)
Evidence given in English: When the evidence of such witness is given in
English the Magistrate or Sessions Judge may take it down in that language with
his own hand, and, unless the accused is familiar with English, or the language
of the Court is English, an authenticated translation of such evidence in the
language of the Court shall form part of the record.
(2-A)
When the evidence of such witness is given in any other language, not being
English, than the language of the Court, the Magistrate or Sessions Judge may
take it down in that language with his own hand, or cause it to be taken down
in that language in his presence and hearing and under his persona! direction
and superintendence, and an authenticated translation of such evidence in the
language of the Court or in English shall form part of the record.
(3)
Memorandum when evidence not taken down by the Magistrate or Judge himself: In
cases in which the evidence is not taken down in writing by the Magistrate or
Sessions Judge, he shall, as the examination of each witness proceeds, make a
memorandum of the substance of what such witness deposes;, and such, memorandum
shall be written and signed by the Magistrate or Sessions Judge with his own
hand, and shall, form part of the record.
(4) If
the Magistrate or Sessions Judge is prevented from making a memorandum as above
required, he shall record the reason of his inability to make it.
357.
Language or record of evidence: (1)
The Provincial Government may direct that in any district or part of a
district, or in proceedings before any Court of Session or before any
Magistrate or class of Magistrates the evidence of each witness shall, in cases
referred to in Section 356, be taken down by the Sessions Judge or Magistrate
with his own hand and in his mother-tongue, unless he is prevented by any
sufficient reason from taking down the evidence of any witness, in which case
he shall record the reason of, his inability to do so and shall cause the
evidence to be taken down in writing from his dictation in open Court.
(2) The
evidence so taken down shall be signed by the Sessions Judge or Magistrate, and
shall form part of the record:---
Provided
that the Provincial Government may direct the Sessions Judge or Magistrate to
take down the evidence in the English language or in the language of the Court,
although such language is not his mother tongue.
358.
Option to Magistrate in cases under Section 355: In cases of the kind mentioned m Section
355, the Magistrate may, if he thinks fit, take down the evidence of any
witness in the manner provided in Section 356, or, if within the local limits
of the jurisdiction of such Magistrate the Provincial Government has made the
order referred to in Section
359.
Mode of recording evidence under Section 356 or Section 357: (1) Evidence taken under -Section 356 or
Section 357 shall not ordinarily be taken down in the form of question and
answer, but in the form of a narrative.
(2) The
Magistrate or Sessions Judge may, in his discretion, take down, or cause to be
taken down any particular question and answer.
360.
Procedure in regard to such evidence when completed: (I) As the evidence of, each witness
taken under Section 356 or Section 357 is completed, it shall be read over to
him in the presence of the accused, if in attendance, or of his pleader, if he
appears by pleader, and shall, if necessary, be corrected.
(2) If
the witness denies the correctness of any part of the evidence when the same is
read over to him, the Magistrate or Sessions Judge may, instead of correcting,
the evidence make a memorandum thereon of the objection, made to it by the
witness, and shall add such remarks as he thinks necessary.
(3) If
the evidence is taken down in a language different from that in which it has
been given and the witness does not understand the language in which it is
taken down, the evidence so taken down shall be interpreted to him in the
language in which it was given, or in a language, which he understands.
361.
Interpretation of evidence to accused or his pleader: (1) Whenever any evidence is given in a
language not understood by the accused, and he is present in person, it shall
be interpreted to him in open Court in a language understood by him.
(2) If
he appears by pleader and the evidence is given in a language other than the
language of the Court, and not understood by the pleader, it shall be
interpreted to such pleader in that language.
(3) When
documents are put in for the purpose of formal proof, it shall be in the
discretion of the Court to interpret as much thereof as appears necessary.
362.
Record of evidence in Presidency Magistrate’s Court: [Omitted by A.0. 1949,
Sch.].
363.
Remarks respecting demeanour of witness: When a Sessions Judge or Magistrate has recorded the
evidence of a witness he shall also record such remarks (if any) as he thinks
material; respecting the demeanour of such witness whilst under examination.
364.
Examination how recorded: (1)
Whenever the accused is examined, by any Magistrate or by any Court other than
a High Court, the whole of such examination including every question put to him
and every answer given by him, shall be recorded in full, in the language in
which he is examined, or, if that is not practicable, in the language of the
Court or in English; and such record shall be shown or read, to him, or if he
does not understand the language in which it is written shall be interpreted to
him in language which he understands, and he shaft be at liberty to explain or
add to his answers.
(2) When
the whole is made conformable to what he declares is the truth, the record
shall be signed by the accused and the Magistrate or Judge of such Court, and
such Magistrate or Judge shall certify under his own hand that the examination
was taken in his presence and hearing and that the record contains a full and
true account of the statement made by the accused.
(3) In
cases in which the examination of the accused is not recorded by the Magistrate
or Judge himself, he shall be bound, as the examination proceeds, to make a
memorandum thereof in the language of the Court, or in English, if he is
sufficiently acquainted with the latter language; and such memorandum shall be
written and signed by the Magistrate or Judge with his own hand, and shall be
annexed to the record. If the Magistrate or Judge is unable to make a memorandum
as above required, he shall record the reason of such inability.
(4)
Nothing in this section shall be deemed to apply to the examination of an
accused person under Section 263.
365.
Record of evidence in High Court: Every
High Court shall from time to time, by general rule, prescribe the manner in
which evidence shall be taken down in cases coming before the Court, and the
evidence shall be taken down in accordance with such rule.
CHAPTER
XXVI
OF
THE JUDGMENT
366.
Mode of delivering Judgment: (1)
The judgment in every trial in any Criminal Court of original jurisdiction
shall be pronounced or the substance of such judgment shall be explained--
(a) in
open Court either immediately after the termination of the trial or at some
subsequent time of which notice shall be given to the parties or their pleaders
and
(b) in
the language of the Court, or in some other language which the accuser, or his
pleader understands:---
Provided
that the whole judgment shall be read out by the presiding Judge if he is
requested so to do either by the prosecution or the defence.
(2) The
accused shall, if in custody, be brought up, or; if not in custody, be required
by the Court to attend, to hear judgement delivered, except where his personal
attendance during the trial has been dispensed with and the sentence is one of
fine only or he is acquitted, .either of which cases it may be delivered in the
presence of his pleader:
(3) No
judgment delivered by any Criminal Court shall be deemed to be invalid by
reason only of the absence of any party or his pleader on the day or from the
place notified for the delivery thereof, or of any omission to serve, or defect
in Sewing, on the parties or their pleaders, or any of them, the notice of such
day and place.
(4)
Nothing in this section shall be construed to limit in any way the extent of
the provisions of Section 537.
367.
Language of judgment-Contents of Judgment: (1) Every such judgment shall, except as otherwise
expressly provided by this Code, be written by the presiding officer of the Court
or from the dictation of such presiding officer in the language of the Court or
in English; and shall contain the point or-paints, for determination, the
decision, thereon and the reasons for the decision; and shall be dated and
signed by the presiding officer in open Court at the time of pronouncing it and
where it is not written by the presiding officer with his own hand, every page
of such judgment shall be signed by him.
(2) It
shall specify, the offence (if any) of which, and the section of the
(3)
Judgment in alternative: When
the conviction is under the Pakistan Penal Code and it is doubtful under which
of two sections, or under which of two parts of the same section, of that Code
the offence falls, the Court shall distinctly express the same, and pass
judgment in the alternative.
(4) If
it be a judgment of acquittal it shall state the offence of which the accused
is acquitted, and direct that he be set at liberty.
(5) If
the accused is convicted of an offence punishable with death, and the Court
sentences him to any punishment other than death, the Court shall in its
judgment state the reason why sentence of death was not passed:
Proviso:
[Omitted by Law Reforms Ordinance, XII of 1972].
(6) For
the purposes of this section an; order under Section 118 or Section 123,
subsection (3), shall be deemed to be a judgment.
368.
Sentence of death: (1)
When any person is sentenced to death, the sentence shall direct that he be
hanged by the neck till he is dead.
369-
Court not to alter judgment: Save
as otherwise provided by this Code or by any other law for the time being in
force or in the case of a High Court, by the letters Patent of such High Court,
no Court when it has signed its judgment, shall alter or review the same,
except to correct a clerical error.
370.
Presidency Magistrate’s judgment: [Omitted by A.O. 1949, Sch.]
371.
Copy of Judgment, etc., to be given to accused: (1) In every case where the accused is
convicted of an offence, a copy of the Judgment shall be given to him at the
time of pronouncing the judgment or, when the accused so desires, a translation
of the judgment in his own language, if practicable, or in the language of the
Court, shall be given to him without delay. Such copy or translation shall be
given free of cost:---
Provided
that this sub-section shall not apply, to cases tried summarily or where the
accused is convicted, of an offence under any law other than the Pakistan Penal
Code.
(2)
Case of person sentenced to death: When
the accused is sentenced to death by a Sessions judge, such Judge shall further
inform him of the period within which, if he wishes to appeal, his appeal
should be preferred.
372.
Judgment when to be translated: The
original judgment shall be filed with the record of proceedings, and, where the
original is recorded-in a different language from that of the Court, and the
accused so requires, a translation thereof into the language of the Court shall
be added to such record.
373.
Court of Session to send copy of finding and sentence to [officer-in-charge
of prosecution]: In
cases tried by the Court of Session, the Court shaft-forward a copy of Its
finding and sentence (if any) to the [officer-in-charge of prosecution in
the district] within the local limits of whose jurisdiction the trial was
held.
Subs.
by the by the Ordinance, XXXVII of 2001, dt.
CHAIPTER
XXVII
OF
THE SUBMISSION OF SENTENCES, FOR CONFIRMATION
374.
Sentence of death to be submitted by Court of Session:--- When the Court of Session passes
sentence of death the proceedings shall be submitted to the High Court and the
sentence shall not be executed unless it is confirmed by the High Court. [1]“The
convict shall neither be treated as condemned prisoner nor shall be confined in
death cell unless the sentence is confirmed by the High Court and in case of an
appeal before the Supreme Court unless the sentence is upheld.”
375.
Power to direct further inquiry to be made or additional; evidence to be taken:
(1) If when such
proceedings are submitted the High Court thinks that a further inquiry should
be made into, or additional evidence taken upon, any point bearing upon the
guilt or innocence of the convicted person, it may make such inquiry or take
such evidence itself, or direct it to be made or taken by the Court of Session.
(2)
Unless the High Court otherwise directs, the presence of the convicted person
may be dispensed with when such inquiry is made or such evidence is taken
(3) When
the inquiry and the evidence (if any) are not made and taken by the High Court,
the result of such inquiry and the evidence shall be certified to such Court.
376.
Power to High Court to confirm sentence or annul conviction: In any case submitted under Section 374
the High Court,---
(a) may
confirm the sentence, or pass any other sentence warranted by law, or
(b) may
annul the conviction, and convict the accused of any offence of which the
Sessions Court might have convicted him, or order a new trial on the same or an
amended charge, or
(c) may
acquit the accused person:---
Provided
that no order of confirmation shall be made under this section until the period
allowed for preferring an appeal has expired, or, if an appeal is presented
within such period, until such appeal is disposed of.
377.
Confirmation of new sentence to be signed by two Judges: In every case so submitted, the
confirmation of the sentences-or any new sentence or order passed by the High
Court, shall, when such Court consists of two or more Judges, be made. passed
and signed by at least two of them.
378.
Procedure in case of difference of opinion: Where any such case is heard before a Bench of Judges and
such Judges are equally divided in opinion, the case, will their opinions
thereon, shall be laid before another Judge and such Judge, after such hearing
as he thanks fit, shall deliver his opinion, and the judgment or order shall
follow such opinion.
379.
Procedure in cases submitted to High Court for confirmation: In cases submitted by the Court of
Session to the High Court for the confirmation of a sentence of death, the
proper officer of the High Court shall, without delay, after the order of
confirmation or other order has been made by the High Court, send a copy of the
order under the seat of the High Court and attested with his official
signature, to the Court of Session.
380.
Procedure in cases submitted by Magistrate not empowered to act under Section
562: [Rep. by Probation of Offenders Ordinance, XLV of 1960, Section 16].
CHAPTER
XXVIII
OF
EXECUTION
381.
Execution of order parsed under Section 376: When a sentence of death passed by a Court of Sessions
submitted to the High Court for confirmation, such Court of Session shall, on
receiving the order of confirmation or other order of the High Court thereon,
cause such order to be carried into effect by issuing a warrant or taking such
other steps as may be necessary:---
Provided
that the sentence of death shall not be executed if the heirs of the deceased
pardon the convict or enter into a compromise with him even at the last moment
before execution of the sentence.
382.
Postponement of capital sentence on pregnant woman: If a woman sentenced to death is found
to be pregnant, the High Court shall order the execution of the sentence to be
postponed, and may. if it thinks fit; commute the sentence to imprisonment for
life.
382-A.
Postponement of execution of sentences of imprisonment under Section 476 or for
a period of less than one year: Notwithstanding
anything contained in Section 383 or 391, where the accused--
(a) is
awarded any sentence of imprisonment under Section 476, or
(b) is
sentenced in cases other than those provided for in Section 381, to
imprisonment whether with or without fine or whipping, for a period of less
than one year. the sentence shall not, if the accused furnishes bail to the
satisfaction of the Court for his appearance at such time and place as the
Court may direct, be executed, until the expiry of the period prescribed for
making an appeal against such sentence, or if an appeal is made within that
time, until the sentence of imprisonment is confirmed by the Appellate Court,
but the sentence shall be executed as soon as practicable after the expiry of
the period prescribed for making an appeal.
or in
case of an appeal, as soon as practicable after the receipt of the order of the
Appellate Court confirming the sentence.
382-B.
Period of detention to be considered while awarding sentence of imprisonment: Where a Court decides to pass a sentence
of imprisonment on an accused for an offence it 92(shall] ,take into
consideration the period, if any, during which such accused was detained in
custody for such offence.
382-C.
Scandalous or false and frivolous pleas to be considered in passing sentence: In passing a sentence on an accused for
any offence, a Court may take into consideration any scandalous or false and
frivolous plea taken in offence by him or on his behalf.
383.
Execution of sentences of transportation or imprisonment in other cases: Where the accused is sentenced to
imprisonment for life or imprisonment in cases other than those provided for by
Section 381 and Section 382-A the Court passing sentence shall forthwith
forward a warrant to the jail in which he is, or is to be, confined, and,
unless the accused is already confined in such jail shall forward him to such
jail, with-the warrant.
384.
Direction of warrant for execution: Every
warrant for the execution of a sentence of imprisonment shall be directed to
the officer-in-charge of the jail or other place in which the prisoner is, or
is to be, confined.
385.
Warrant with whom to be lodged: When
the prisoner is to be confined in a jail, the warrant shall be lodged with the
jailor.
386.
Warrant for levy of fine: (1)
Whenever an offender has been sentenced to pay a fine, the Court passing the
sentence may take action for the recovery of the fine in either or both of the
following ways, that is to say, it may--
(a)
issue a .warrant for the levy of the amount by attachment and sale of any
movable property belonging to the offender;
(b)
issue a warrant .to the [District Officer (Revenue)] authorising him to
realise the amount by execution according to civil process against the movable
or immovable property, or both, of the defaulter:---
Provided
that, if the sentence directs that in default of payment of the fine the
offender shall be imprisoned, and if such offender has undergone the whole of
such imprisonment in default, no Court shall issue such warrant.
(2) The
Provincial Government, may make rules regulating the manner which warrantsunder
sub-section (1), clause (a), are to be executed, and for the summary
determination if any claims made by any person other than the offender in
respect of any property attached in execution of such warrant.
(3)
Where the Courts issue a warrant to the [District Officer (Revenue)]
under sub-section
(1),
clause- (b) such warrant shall be deemed to be a decree and the Collector to be
the decree-holder, within the meaning of the Code of Civil Procedure, 1908, and
the nearest Civil Court by which any decree for a like amount could be executed
shall, for the purposes, of the said Code, be deemed to be the Court which
passed the .decree, and at the provisions of that Code as to execution of
decrees shall apply accordingly:---
Provided
that no such warrant shall be executed by the arrest or detention in prison of
the offender.
Subs.
& omitted by Ordinance, XXXVII of 2001, dt.
387.
Effect of such warrant: A
warrant issued under Section 386, sub-section (1) clause
(a), by
any Court may be executed-within the focal limits of the jurisdiction of such
Court, and ft shall authorize the attachment and sale of any such property
without such limits, when endorsed by the Magistrate within the local limits of
whose jurisdiction such property is found.
388.
Suspension of execution of sentence of imprisonment: (1) When an offender has been sentenced
to fine only and to imprisonment in default of payment of the fine, and the
fine is not paid forthwith, the Court may--
(a)
order that the fine shall be payable either in full on or before a date not
more than thirty days from the date of the order or in two or three
installments, of which the first, shall be payable on or before a date not more
than thirty days from the date of the order and the other or others at an
interval or at intervals, as the case may be, of not more than thirty days, and
(b)
suspend the execution of the sentence of imprisonment and release the offender,
on the execution by the offender of a bond, with or without sureties; as the
Court thinks fit, conditioned for his appearance before the Court on the date
or dates on or before which payment of the fine or the installments thereof, as
the case may be, is to be made and if the amount of the fine or of any
installment, as the case may be, is not realised on or before the latest date
on which it is payable under the order, the Court may direct the sentence of
imprisonment to be carried into execution at once.
(2) The
provisions of sub-section (1) shall be applicable also in any case in which an
order for the payment of money has been made on non-recovery of which
imprisonment may be awarded and the money is not Paid forthwith; and, if the
person against whom the order has been made, of being - required to enter info
a bond such as is referred to in that sub-section, fails to do so the Court may
at once pass sentence of imprisonment.
389.
Who may issue warrant: Every
warrant for the execution of any sentence may be issued either by the Judge or
Magistrate who passed the sentence, or by his successor-in-office.
390.
Execution of sentence of whipping only: When the accused is sentenced to whipping only, the
sentence shall subject to the provisions of .Section 391 be executed at such
place and time as; the Court may direct.
391. (1) When-the accused
(a)
Execution of sentence of whipping, in addition to imprisonment: is sentenced to whipping only and
furnishes bail to the satisfaction of the Court for his appearance at such time
and place as the Court may direct, or
(b) is
sentenced to whipping in addition to imprisonment, the whipping shall not be
inflicted until fifteen-days from the date of the sentence, or if an appeal is
made within that time, until the sentence is confirmed by the Appellate Court,
but the whipping shall be inflicted as soon as .practicable after the expiry of
the fifteen days, or, in case of an appeal, as soon as practicable after the
receipt of the order of the Appellate Court confirming the sentence;
(2) The
whipping shall be inflicted in the presence of the officer incharge of the
Jail, unless the Judge or Magistrate orders it to be inflicted in his own
presence.
(3) No
accused person shall be sentenced to whipping in addition to imprisonment when
the term of imprisonment to which he is sentenced is less than three months.
392.
Mode of inflicting punishment: (1)
In the case of a person of over sixteen years of age whipping shall be
inflicted with a light rattan not less than half an inch in diameter, in such
mode, and on such part of the person, as the Provincial Government directs; and
in the case of a person under sixteen years of age, it shall be inflicted in
such mode, and on such part of the person, and with such instruments, as the
Provincial Government directs.
(2)
Limit of number of stripes: In
no case shall such punishment exceed thirty Stripes and, in the case of a
person under sixteen years of age, it shall not exceed fifteen stripes.
393.
Not to be executed by instalments - Exemptions: No sentence of whipping shall be
executed by instalments; and none of the following persons shall be punishable
with whipping, namely:---
(a)
females;
(b)
males sentenced to death or to imprisonment for life or to imprisonment for
more than five years;
(c)
males whom the Court considers to be more than forty-five years of age.
394.
Whipping not to be inflicted if offender not in fit state of health: (1) The punishment of .whipping shall
not be inflicted unless a medical officer, if present, certifies, or, if there
is not a medical officer present, unless it appears to the Magistrate or
officer present, that the offender is in a fit state of health to undergo such
punishment.
(2)
Stay of execution: If
during the execution of a sentence of whipping, a medical officer certifies, or
it appears to the Magistrate-or officer present, that the offender is not in a
fit state of health to undergo the remainder of the sentence, the whipping
shall toe finally stopped.
395.
Procedure if punishment cannot be inflicted under Section 394: (1) In any case in which under Section
(2)
Nothing in this section shall be deemed to authorize any Court’ to inflict
imprisonment for a term or a fine of an amount exceeding that to which the
accused is liable by law, or that which the said Court is competent to inflict.
396.
Execution of sentence on escaped convicts: (1) When sentence, is passed under this Code on-an escaped
convict, such sentence if of death, fine or whipping, shall subject to the
provisions hereinbefore contained, take effect immediately, and, if, of
imprisonment, or imprisonment for life shall take effect according to the
following rules, that is to say:
(2) If
the new sentence is severer in its kind than the sentence which such convict
was undergoing when he escaped/the new sentence shall take effect immediately.
(3) When
the new sentence is not severer in its kind than the sentence the convict was
undergoing when he escaped, the new .sentence shall take effect after he has
suffered imprisonment, for a further period equal to that which, at the time of
his escape, remained unexpired of his former sentence.
Explanation:
For the purposes of this section,---
(a)
[Omitted]
(b) a
sentence of imprisonment with solitary confinement shall be deemed severer than
a sentence of the same description of imprisonment without solitary
confinement, and
(c) a
sentence of rigorous imprisonment shall be deemed severer than a sentence of
simple imprisonment with or without solitary confinement.
397.
Sentence of offender already sentenced for another offence: When a person already undergoing a
sentence of imprisonment, or imprisonment for life, is sentenced to
imprisonment, or imprisonment for life such imprisonment, or 103 (imprisonment
for life], shall commence at the expiration of the imprisonment, or
imprisonment for life to which he has been .previously sentenced, unless the
Court directs that the subsequent Sentence shall run concurrently with such
previous sentence:
Proviso:
[Omitted by Criminal Procedure (Amendment) Act, XXV of 1974]:---
Provided
further, that where a person who has been sentenced to imprisonment by an order
under Section
398.
Saving as to Sections 396 and 397: (1)
Nothing in Section 396 or Section 397 shall be held to excuse any person from
any part Of the punishment to which he is liable upon his former or subsequent
conviction.
(2) When
an award of imprisonment in default of payment of a fine is annexed to a
substantive sentence of imprisonment, brio a sentence of imprisonment for life
and the person undergoing the sentence is after its execution to undergo a
further substantive sentence, or further substantive sentences, of
imprisonment, or transportation, effect shall not be given to the award of
imprisonment in default of payment of the tine until the person has undergone
the further sentence or sentences.
399.
Confinement of youthful offenders in reformatories: (1) When any person under the age of
fifteen years is sentenced by any Criminal Court to imprisonment for any
offence, the Court may direct that such person, instead of being imprisoned in
a criminal jail, shall be confined in any reformatory established by the
Provincial Government as a fit place for confinement, in which there are means
of suitable discipline and of training in some branch of useful industry or
which is kept by a person willing to obey such rules as the Provincial
Government prescribes with regard to the discipline and training of persons
confined therein.
(2) Alt
persons confined under this section shall be subject to the rules so
prescribed.
(3) This
section shall not apply to any place in which the Reformatory Schools Act,
1897, is for the time being in force.
400.
Return of warrant on execution of sentence: When a sentence has been fully executed, the officer
executing it shall return the warrant to the Court from which it is issued,
with an endorsement under his hand certifying the manner in which the sentence
has been executed.
CHAPTER
XXIX
OF
SUSPENSIONS, REMISSIONS AND COMMUTATIONS OF
SENTENCES
401.
Power to suspend or remit sentences: (1)
When any person has been sentenced to punishment of ah offence, the Provincial
Government may at any time without conditions or upon any conditions which the
person sentenced accepts, suspend the execution of his sentence or remit the
whole or any part of the punishment to which he has been sentenced.
(2) Whenever
an application is made to the Provincial Government for the suspension or
remission of a sentence, the Provincial Government may require the presiding
Judge of the Court before or by which the conviction was had or confirmed to
state his opinion as to whether the application should be granted or refused,
together with his reasons for such opinion and also to forward with the
statement of such opinion a certified copy of the record of the trial or of
such record thereof as exists.
(3) If
any condition on which a sentence has been suspended or remitted is, in the
opinion of the Provincial Government, not fulfilled, the Provincial Government
may cancel the suspension or remission, and thereupon the person in whose
favour the sentence has been suspended or remitted may, if at large, be
arrested by any police-officer without warrant and remanded to undergo the
unexpired portion of the sentence.
(4) The
condition on which a sentence is suspended or remitted under this section may
be one to be fulfilled by the person in whose favour the sentence is suspended
or remitted, or one independent of his will.
(4-A)
The provisions of the above subjections shall also apply to any order passed by
a Criminal Court under any section of this Code or of any other law, which
restricts the liberty of any person or imposes any liability upon him or his
property.
(5)
Nothing herein contained shaft be deemed to interfere with the right of the
President or of the Federal Government when such right is delegated to it to
grant pardons, reprieves, respites or remissions of punishment.
(5-A)
Where a conditional ‘pardon is granted by the President or in virtue of any
powers delegated to it by the Federal Government, any condition thereby
imposed, of whatever nature, shall be deemed to have been imposed by a sentence
of a competent Court under this Code and shall be enforceable accordingly.
(6) The
Provincial Government may, by general rules or special orders, give directions
as to the suspension of sentences and the conditions on which petitions should
be presented and dealt with.
402.
Power to commute punishment: (1)
The Provincial Government may, without the consent of the person sentenced,
commute any one of the following sentences or any other mentioned after it:-
death
imprisonment for life, rigorous imprisonment for a term not exceeding that to
which he might have been sentenced, simple imprisonment for a like term, fine.
(2)
Nothing in this section snail affect the provisions of Section 54-or Section 56
of the Pakistan Penal Code.
402-A.
Sentence of death: The
powers conferred by Sections 401 and 402 upon the provincial Government may, in
the case of sentences of death, also be exercised by the President.
402-B.
Certain restrictions on the exercise of powers by Provincial Government: Notwithstanding anything contained in
Section 401 or Sector 402, the Provincial Government shall not except with the
previous approval of the President, exercise the powers conferred thereby in a
case where the President has passed an order in exercise of his powers under
the Constitution to grant pardons, reprieves and respites or to remit, suspend
or commute any sentence or of his powers under Section 402-A.
402-C. Remission or commutation of
certain sentences not to be without consent: Notwithstanding anything contained in Section 401, Section
402, Section 402-A or Section 402-B, the Provincial Government, the Federal
Government or the President shall not, without .the consent of the victim, or
as the case may be of his heirs suspend remit or commute any sentence passed
under any of the sections in Chapter XVI of the Pakistan Penal Code.
CHAPTER
XXX
OF
PREVIOUS ACQUITTALS OR CONVICTIONS
403.
Person once convicted or acquitted not to be tried for same offence: (1) A person who has once been tried by
a Court of Competent Jurisdiction for an offence and convicted or acquitted of
such offence shall whiles such conviction or acquittal remains in force, not W
liable to be tried again for the same offence, nor on the same facts for any
other offence for which a different charge from the one made against him might
have been .made under Section 236, or for which he might have been convicted
under Section 237.
(2) A
person acquitted or convicted of any offence may be afterwards tried for any
distinct offence for which separate charge might have been made against him on
the former trial under Section 235, sub-section (1).
(3) A
person convicted of any offence constituted by any act causing consequences:
which together, with such act, constituted a different offence from that of
which he was convicted, may be afterwards tried for such last mentioned
offence, if the consequences had not happened, or were not known to the Court
to have happened, at the time when he was convicted.
(4) A
person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequent charged with, and
tried for, any other offence constituted by the same acts which fie may have
committed if the Court by which he was first tried was not competent to try the
offence with which he is subsequently charged.
(5)
Nothing in this section shall affect the provisions of Section 26 of the
General Clauses Act, 1897, or Section 188 of this Code.
Explanation:
The dismissal of a complaint, the stopping of proceedings under Section 249, or
the discharge of the accused is not an acquittal for the purposes of this
section.
Illustrations
(a) A is
tried upon a charge of theft as S servant and acquitted. He cannot afterwards,
while the acquittal remains In force, be charged with theft as a servant, or,
upon the same facts, with theft simply, or with criminal breach of trust.
(b) A is
tried upon a charge of murder and. acquitted. There is no charge of robbery;
but it appears from the facts that A committed robbery at the time when the
murder was committed; he may afterwards be charged with, and tried for robbery,
(c) A is
tried for causing grievous hurt and convicted. The person injured afterwards
dies.
A may be
tried again for culpable homicide.
(d) A is
charged before the Court of Session and convicted of the culpable homicide of
B.
A may
not afterwards be tried on the same facts for the murder of B.
(e) A is
charged by a Magistrate of the First Class with, and convicted by him of,
voluntary causing hurt to S. A may not afterwards be tried for voluntarily
causing grievous hurt to B on the same facts, unless the case comes within
paragraph 3 of the section.
(f) A is
charged by a Magistrate of the Second Class with, and convicted by him of,
theft of property from the person of B. A may be subsequently charged with, and
tried for, robbery on the same facts.
(g) A, B
and C are charged by a Magistrate of the First Class with, and. convicted by
him of robbing D. A, B and C may afterwards be charged with, and tried for,
dacoity on the same facts.
PART
VII
OF
APPEAL, REFERENCE AND REVISION
CHAPTER
XXXI
OF
APPEALS
404.
Unless otherwise provided, no appeal to lie: No appeal -shall lie from- any judgment or order of a
Criminal Court except-as provided for by this Code or by any other law for the
time being in force.
405.
Appeal from order rejecting application for restoration of attached property: Any person whose application under
Section 89 for the delivery of property or the proceeds of the sale thereof has
been rejected .by any Court may appeal to the Court to which appeals
ordinarily. He from the sentences of the former Court.
[406.
Appeal from order requiring security for keeping the peace or for good
behaviour: Any
person who has been ordered by a Magistrate under Section 118 to give security
for keeping, the peace or for good behaviour may appeal against such order to
the Court of Session;---
Provided
that nothing in this section shall apply to persons the proceedings against
whom are laid before a Sessions Judge in accordance with the provisions of
sub-section (2) or sub-section (3-A) of Section 123].
Section
406 & Proviso subs. by Ordinance, XXXVII of 2001, dt,
406-A.
Appeal from order refusing to accept or rejecting a surety: Any person aggrieved by an order refusing
to accept or rejecting a surety under Section 122 may appeal against which
order to the Court of Session.
407.
[Omitted by Item No. 140 of
408.
Appeal from sentence of Assistant Sessions Judge or 3[Judicial Magistrate]: Any person convicted on a trial held by
an Assistant Sessions Judge, a District Magistrate or a Judicial Magistrate, or
any person sentenced under Section 349 may appeal to the Court of Session:---
Provided
as follows:---
(a)
[Rep: by the Criminal Law Amendment Act, XII of 1923, S.23]
(b) When
in any case an Assistant Sessions Judge 6[passes any sentence of imprisonment
for a term exceeding four years the appeal of alt or any of the accused
convicted at such trial shall lie to the High Court;
(c) when
any person is convicted by a Magistrate of an offence under Section 124-A of
the Pakistan Penal Code, the appeal shall lie to the High Court.
409.
Appeals to Court of Session how heard: Subject to the provisions of this section, an-appeal
to-.the Court of Session or Sessions Judge shall be heard by the Sessions Judge
or by an Additional Sessions Judge or an Assistant Sessions Judge:---
Provided
that an Additional Sessions Judge shall hear only such appeal as the Provincial
Government may, by general or special order, direct or as the Sessions Judge of
the Division may make over to him:---
Provided
further that no such appeal shall be heard by an Assistant Sessions Judge
unless the appeal is of a person convicted on a trial held by any Magistrate of
the Second Class or Third Class.
410.
Appeal from sentence of Court of Session: Any person convicted on a trial held by a Sessions Judge,
or an Additional Sessions Judge, may appeal to the High Court.
411.
[Omitted by AO. 1949, Sch}.
411-A.
Appeal from sentence of High Court: (1)
Except in cases in which an appeal ties to the Supreme Court under Article 185
of the Constitution any person convicted on a trial held by a High Court in the
exercise of its original criminal jurisdiction may, notwithstanding anything
contained in Section 418 or Section 423, sub-section (2), or in the Letters
Patent of any High Court, appeal to the High Court-
(a)
against the conviction on any ground of appeal which involves a matter of law
only;
(b) with
the leave of the Appellate Court or upon the certificate of the Judge who tried
case that it is a fit case for appeal, against the conviction on any ground of
appeal which involves a matter of fact only, or a matter of mixed law and fact,
or any other ground which appears to the Appellate Court to be a sufficient
ground of appeal; and
(c) with
the leave of the Appellate Court, against the sentence passed unless the
sentence is, one fixed by
(2)
Notwithstanding anything contained in Section 417, the Provincial Government
may direct the Public Prosecutor to present an appeal to the High Court from
any order of acquittal passed by the High Court n the exercise of its original
criminal jurisdiction, and such appeal may notwithstanding anything contained
in Section 418, or Section 423, subsection (2), or in the Letters Patent of any
High Court, but subject to the restrictions imposed by clause (b) and clause
(c) of sub-section (1) of this section on an appeal against a conviction, lie
on a matter of fact as well as a matter of law.
(3)
Notwithstanding anything elsewhere contained in any Act or Regulation an appeal
under this section shall be heard by a Division Court of the High Court
composed of not less than two Judges, being Judges other than the Judge or Judges
by whom the original trial was held; and if the constitution of such a Division
Court impracticable, the High Court shall report the circumstances to the
Provincial Government which shall take action with a view to the transfer of
the appeal under Section 527 to another’ High Court.
(4)
Subject to such rules as may from time to time tie made by the Supreme Court in
this behalf, and to such conditions as the High Court may establish or require,
an appeal shall tie to the Supreme Court from any order made on appeal under
sub-section (1) by a Division Court of the High Court in respect of which order
the High Court declares that The matter is a fit one of such appeal.
412.
No appeal in certain cases when accused pleads guilty: Notwithstanding anything .hereinbefore
contained, where an accused person has pleaded guilty and has been convicted by
a High Court, a Court of Session of Magistrate of the First Class on such plea,
there shall be no appeal except as to the extent or legality of the sentence.
413.
No appeal in petty cases: Notwithstanding
anything hereinbefore contained there shall be no appeal by a convicted person
in cases in which High Court passes a sentence of imprisonment not exceeding
six months only or of fine not exceeding two hundred rupees only or in which a
Court of Session passes a sentence of imprisonment not exceeding one month only
or in which a Court of Session or Magistrate of the First Class passes a
sentence of fine not exceeding fifty rupees only.
Explanation:
There is no appeal from a sentence of imprisonment passed by such Court or
Magistrate in default of payment, of fine when no substantive sentence of
imprisonment has also been passed.
414.
No appeal from certain summary convictions: Notwithstanding anything hereinbefore contained, there
shall be, no appeal by a convicted person-in-any case tried summarily in which
a Magistrate empowered to act under Section 260 passes a sentence of fine not
exceeding two hundred rupees only.
415.
Proviso to Sections 413 and 414: An
appeal may be brought against any sentence referred to m Section 413 or Section
414 by which any punishment therein mentioned is combined with any other
punishment, but no sentence which would not otherwise be liable to appeal shall
be appealable merely on the ground that the person convicted is ordered to find
security to keep the peace.
Explanation:
A sentence of imprisonment in default of payment of fine is not a sentence by
which two or more punishments are combined within the meaning of this section.
415-A.
Special right of appeal in certain cases: Notwithstanding anything contained in this Chapter, when
more persons than one are convicted in one that, and an appealable, judgment or
order has been passed in respect of any of such persons, all or any of the
persons convicted at such trial shall have a right of appeal-
416.
[Rep. by Act, XII of 1923, S.26]
4l7.
Appeal in case of acquittal: (1)
Subject to the provisions of sub-section (4); the Provincial Government may in
any case, direct the Public Prosecutor to present an appeal to the High Court
from an original or appellate order of acquittal passed by any Court other than
a High Court.
(2) If
such an order of acquittal is passed in any case instituted upon complaint and
the High Court, on an application made to it by the complainant in this behalf
grants special leave to appeal from the order of acquittal, the complainant may
present such an appeal to the High Court.
(2-A) A
person aggrieved by the order of acquittal passed by any Court-.-other than a
High Court, may, within thirty days, file an appeal against such order.
(3) No
application under sub-section (2) for the grant of special leave to appeal from
an order of acquittal shall be entertained by the High Court after the expiry
of sixty days from: the date of that order,
(4) If,
in any case, the application under sub-section (2) for the grant of special
leave to appeal from an order of acquittal is refused no appeal from that order
of acquittal shall lie under sub-section (1).
418.
Appeal on what matters admissible: (1)
An appeal may tie on a matter of fact as well as matter of law.
(2)
[Omitted by Law Reforms Ordinance, XII of 1972.]
Explanation:
The alleged severity of a sentence shall for the purpose of this section, be
deemed to be a matter of law.
419.
Petition of appeal: Every
appeal shall be made in the form of petition in writing presented by the
appellant or his pleader, and every such petition shall (unless the Court to
which it is presented otherwise directs) be accompanied by a copy of the
judgment or order appealed against.
420.
Procedure when appellant in jail: If
the appellant is in jail, he may present his petition of appeal and the copies
accompanying the same to the officer incharge of the jail, who shall thereupon
forward such petition and copies to the proper Appellate Court.
421.
Summary dismissal of appeal: (1)
Op receiving the petition and copy under Section 419.or Section 420, the
Appellate Court shall peruse the same, and if it considers that there is no
sufficient ground for interfering, it may dismiss the appeal summarily:---
Provided
that no appeal presented under Section 419 shall be dismissed unless the
appellant or his pleader has had a reasonable opportunity of being heard in
support of the same.
(2)
Before dismissing an appeal under this section, the Court may calf for the
record of the case, but shall not be bound to do so.
422.
Notice of appeal: If
the Appellate Court does not dismiss the appeal summarily, it shall cause
notice to be given to the appellant or his pleader, and to such officer as the
Provincial Government may appoint in this behalf of the time and place at which
such appeal will be heard, and shall, on the application of such officer,
furnish him with a copy of the grounds of appeal; and, in cases of-appeals
under Section 411-A, sub-section (2) or Section 417, the Appellate Court shaft
cause a like notice to be Given to the accused
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.]
424.
Judgments of subordinate Appellate Courts: The rules contained In Chapter XXVI as to the Judgment of a
Criminal Court of original jurisdiction shall apply, so far as may be
practicable, teethe judgment of any Appellate Court other than a High Court:---
Provided
that, unless, the Appellate Court otherwise directs, the accused shall not be
brought up, or required to attendee hear judgment delivered.
425.
Order by High Court on appeal to be certified to lower Court: (1) Whenever a case is decided on appeal
by the High Court under this Chapter, it shall certify its judgment or order to
the Court by which the finding, sentence or order appealed against was recorded
or passed. If the finding, sentence-or order was recorded or passed by a
Magistrate other than the District Magistrate, the certificate shall be sent
through the District Magistrate.
(2) The
Court to which the High Court certifies its judgment or order shall thereupon
make such orders as are conformable to the judgment or .order of the High
Court; and, if necessary, the record shall be amended in accordance therewith.
426.
Suspension of sentence pending appeals--Release of appellant on bail: (1) Pending any appeal by a convicted
person, the Appellate Court may, for reasons to be recorded by It in writing,
order, that the execution of the sentence or order appealed against be
suspended and, also, if he is in confinement, that he be released on bail or on
his own bond.
(1-A)
[Omitted by Ordinance, LIV of 2001.]
(2) The
power, conferred by this section on an Appellate Court may be exercised also by
the High Court in the case of any appeal by a convicted person to a Court
subordinate thereto.
(2-A)
Subject to the provisions of Section 382-A when any person other, than a person
accused of a non-bailable offence is sentenced to imprisonment by a Court, and
an appeal lies from that sentence, the Court may, if the convicted person satisfies
the Court that he intends to present an appeal order that be released J3n bail,
for a period sufficient in the Opinion of the Court to enable him to present
the appeal and obtain the orders of the Appellate Court under sub-section (1)
and the sentence of imprisonment shall, so long as he is so released on bail,
be deemed to be suspended.
(2-B)
Where a High Court is satisfied that a convicted person has been granted
special leave to appeal to the Supreme Court against any sentence which it has
imposed or maintained, it may, ,if it so thinks fit order that pending the
appeal the sentence or order appealed against be suspended and, also, if the
said parson is in confinement, that he be released on bail.
(3) When
the appellant is ultimately sentenced to imprisonment, or imprisonment for life
the time during which he is so released shall be excluded in computing the term
for which he is so sentenced.
427.
Arrest of accused in appeal from acquittal: When appeal is presented under Section 411-A, sub-section
(2), or Section 417, the High Court may issue a warrant directing that the
accused be arrested and brought before it or any subordinate Court, and the
Court, before which he is brought may commit him to prison pending the disposal
of the appeal, or admit him to bail.
428.
Appellate Court may take further evidence or direct it to be taken: In dealing with any appeal under this
Chapter, the Appellate Court, if it thinks additional evidence to be necessary,
shall record its reasons, and may either take such evidence itself, or direct
it to be taken by a Magistrate, or when the Appellate Court is a High Court, by
a Court of Session or a Magistrate.
(2)
Where the additional evidence is taken by the Court of Session or the
Magistrate, it or he shall certify such evidence to the Appellate Court, and
Such Court shall thereupon proceed to dispose of the appeal.
(3)
Unless the Appellate Court otherwise directs, the accused or his pleader shall
be present when the additional evidence is taken.
20.
Sub-sec. (2-B) inst. by the Code of Criminal Procedure (Second Amendment) Act,
4 of 1946, S. 2.
(4) The
taking of evidence under this section shall be subject to the provisions of
Chapter XXV, as if it were an inquiry.
429.
Procedure where Judges of Court of Appeal are equally divided: When the Judges composing the Court of
Appeal are equally divided in opinion, the case, with their opinions thereon,
shall be laid before another Judge of the same Court and such Judge, after such
hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment
or order shall follow such opinion.
430.
Finality of orders on appeal: Judgments
and orders passed by an Appellate Court upon appeal shall be final, except in
the cases provided for in Section 417 and Chapter XXXII.
431.
Abatement of appeals: Every
appeal under Section 411-A, sub-section (2), or Section 417 shall finally abate
on-the death of the accused, and every other appeal under this Chapter except
an appeal from a sentence of fine shall finally abate on the death of the appellant
CHAPTER
XXXII
OF
REFERENCE AND REVISION
432-433.
[Omitted by AO.1949,
Sch.]
434. [Omitted by Act, XXVI of 1943, S. 6.]
435.
Power to call for records of inferior Courts: (1) The High Court or any Sessions Judge
may call for an examine the record of any proceeding before any inferior
Criminal Court situate within the local
limits of its or his jurisdiction for the purpose of satisfying, itself or
himself as to the correctness, legality or propriety of any finding, sentence
or order recorded or passed, and as to the regularity of any proceedings of
such inferior Court and may, when calling for such record, direct that the
execution of any sentence be suspended
and, if the accused is in confinement, that he be released on bail or on his
own bond pending the examination of the record.
Explanation:
All Magistrates shall
be deemed to be inferior to the Sessions Judge for the purposes of this
sub-section.
(2)
[Omitted by Item No. 150 (ii) of Punjab Notification No: SO (J-ll) 1-8-/75
(P-V). dated
(3)
[Rep. by the Code of Criminal Procedure (Amendment) Act, l923^(Vfffof1923);S.
116.]
(4)
[Omitted by Item. No. 150(ii) of Punjab Notification No. SO(J-II) 1-8/75 (P-V),
dated
436.
Power to order further inquiry: On
examination any record under Section-435 or otherwise (a) the High Court may
direct the Sessions Judge to require [any] Magistrate subordinate to him
to make, and the Sessions Judge himself may direct any Judicial Magistrate
subordinate to him to make, further inquiry into any complaint which has been
dismissed under Section 203 or sub-section (3) of Section 204, or into the case
of any person accused of an offence who, has been discharged;
(6) the
High Court or the Sessions, Judge may direct [any Magistrate] to make
further Inquiry into any proceedings to, which an order of discharge or release
has been made under Section 119:---
Provided
that no Court shall make any direction under this section for enquiry into the
case of a person Who has been released or discharged under Section 119 unless
such person has had an opportunity of showing cause why such direction should
not be made.]
Subs.
by Ordinance. XXXVII of 2001, dt.
437. [Omitted by Law Reforms Ordinance, XII
of 1972, Sch. 152.]
438. [Omitted by Item No. 752-B of
439.
High Court’s powers Of revision: (1)
In the case of any proceeding the record of which has been called for by itself
or which otherwise comes to its knowledge, the High Court, may, in its
discretion,, exercise any of the powers Conferred on a Court of Appeal by
Sections 423, 426, 427 and 428 or on a Court by Section 338, and may enhance
the sentence and, when the Judges Composing the Court of Revision are equally
divided in. opinion, the case shall be disposed of in manner provided by
Section 4.29.
(2) No
order under this section, shall be made to the prejudice of the accused unless
he has had an opportunity of being heard either personally or by pleader in his
own defence.
(3)
Where the sentence dealt with under this section has been passed by a
Magistrate the Court shall not inflict a greater punishment for the offence
which, in the opinion of such Court, the accused has committed, than might have
been inflicted for such offence by a Magistrate of the First Class.
(4)
Nothing in this section shall be, deemed to authorize a High Court,---
(a) To
convert a finding of acquittal into one of conviction; or
(b) to entertain
any proceedings in revision, with respect to an order made by the Sessions
Judge under Section
(5)
Where under this Code an appeal lies and no appeal is brought, no proceedings
by way of revision shall be entertained at the instance of the party who could
have appealed.
(6)
Notwithstanding anything contained in this section, any convicted person to
whom an opportunity has been given under sub-section (2) of showing cause why
his sentence should not be enhanced shall, in showing cause, be entitled at so
to show cause against Ns conviction.
439-A.
Sessions Judge’s powers of revision: (1)
In the case of any proceedings before a Magistrate the record of which has been
called for by the Sessions Judge or which otherwise comes to his knowledge; the
Sessions, Judge may exercise any of the powers conferred on the High Court by
Section 439:
(2) An
Additional Sessions Judge shall have and may exercise all the powers of a
Sessions Judge under, this Chapter in respect of any case which may be
transferred to him under any general or special order of the Sessions Judge.
440.
Option with Court to hear parties: No
party has any right to be heard either personally or by pleader before any
Court when exercising its powers of revision:---
Provided
that the Court .may, if it thinks fit, when exercising such powers, hear any
party either personally or by pleader, and that nothing in this section shall
be deemed to affect Section 439, sub-section (2).
441.
[Omitted by A.O., 1949, Sch.]
442.
High Court’s order to be certified to lower Court or Magistrate: When a case is revised under this
Chapter by the High Court, it shall, in manner hereinbefore provided by Section
425, certify its decision or order to the Court by which the finding, sentence
or order revised was recorded or passed, and the Court or Magistrate to which
the decision or order is so certified shall thereupon make such orders as are
conformable to the decision so certified; and, if necessary, the record shall
be amended in accordance therewith.
PART
VIII
SPECIAL
PROCEEDINGS
CHAPTER
XXXIII
443 to
463. [Omitted by the Criminal Law (Execution of Discriminatory Privileges) Act,
1949, II of 1950, Schedule.]
CHAPTER
XXXIV
LUNATICS
464.
Procedure in case of accused being lunatic: (1) When a Magistrate holding aninquiry or a trial has
reason to believe that the accused is of unsound mind and consequently
incapable of making his defence, the Magistrate shall inquire into the fact of
such unsoundness, and shall cause such person to be examined by the Civil
Surgeon of the distract or such other medical officer as the Provincial
Government directs, and thereupon shall examine such surgeon or other officer
as a witness, and shall reduce the examination to writing.
(1-A)
Pending such examination and inquiry, the Magistrate may deal with the-accused
in accordance with the provisions of Section 466.
(2) If
such Magistrate is of opinion that the accused is of unsound mind and
consequently incapable of making his defence, he shall record a finding to that
effect and, shall postpone further proceedings in the case.
465.
Procedure in case of person sent for trial before Court of Session or High
Court being lunatic: (1)
If any person before a Court of Session or a High Court appears to the Court at
his trial to be of unsound mind and consequently incapable of making his
defence, the Court shall, in the first instance, try the fact of such
unsoundness and incapacity, and if the Court is satisfied of the fact, it shall
record a finding to that effect and shall postpone further proceedings in the
case.
(2) The
trial of the fact of the unsoundness of mind and incapacity of the accused
shall be deemed to be part of his trial before the Court.
466.
Release of lunatic pending investigation or trial: (1) Whenever an accused person is found
to of unsound mind and incapable of making his defence, the Magistrate or
Court, as the case may be, whether the case is one in which bail may be taken
or not, may release him on sufficient security being given that he- shall be
properly taken care of and shall be prevented from doing injury to himself or
to any other person, and for his appearance when required before the Magistrate
or Court or such officer as the Magistrate or Court appoints in this behalf.
(2)
Custody, of lunatic: If
the case is one in which, in the opinion of the Magistrate or Court, bail
should not be taken, or if sufficient security is not given, the Magistrate or
Court, as the case may be, shall, order the accused to be detained in safe
custody in such place and manner as he or it may think fit, and shall report
the action taken to the provincial Government:---
Provided
that no order for the detention of the accused in a lunatic asylum shall be
made otherwise than in accordance with such rules as the Provincial Government
may have made under the Lunacy Act, 1912.
467.
Resumption of inquiry or trial: (1)
Whenever an inquiry or a trial is postponed under Section 464, or Section 465,
the Magistrate or Court, as the case may be, may at any time resume the inquiry
or trial, and require the accused to appear or be brought before Such
Magistrate or Court.
(2) When
the accused has been released under Section 466 and, the sureties for his
appearance produce him to the officer whom the Magistrate or Court appoints in
this behalf, the certificate of such officer that the accuser is capable of
making his defence shall be receivable in evidence.
468,
Procedure on accused appearing before Magistrate or Court: (1) if, when the accused appears or is
again brought before the Magistrate or the Court, as the case may be, the
Magistrate or Court, considers him capable of making his defence, the inquiry
or trial shall proceed,
(2) If
the Magistrate or Court considers the accuser to be still incapable of making
his defence, the Magistrate or Court shall again act according to the
provisions of Section 464 or Section 465, as the case may be, and if the
accused is round to be of unsound mind and incapable of making his defence,
shall deal with such accused in accordance with the provisions of Section 466.
469.
When accused appears to have, been insane: When the accused appears to be of sound mind at the time of
Inquiry or trial, and the Magistrate or Court is satisfied from the evidence
given before him that there is reason to believe that the accused committed art
act which if he had been of sound mind, would have been an offence, and that he
was at the time when the act was committed, by reason of unsoundness of mind,
incapable of knowing the nature of the fact or that it was wrong or contrary to
law, the Magistrate or Court shall proceed with the case.
470.
Judgment of acquittal on ground of lunacy: Whenever any person is acquitted upon the ground that, at
the time at which he is alleged to have committee an offence he was, by reason
of unsoundness of mind, incapable of knowing the nature of the act alleged as
constituting the offence, or that it was wrong or contrary to law, the finding
shall state specifically whether he committed the act or hot.
471
Person acquitted on such ground to be detained In safe custody: (1) Whenever the finding states that the
accused person/committed the act alleged, the Magistrate or Court before whom,
or which the trial has been held, shall, if such act would but for the
incapacity, found, have constituted an offence, order such person to be
detained in safe Custody in such place and manner as the Magistrate or Court
thinks fit, and shall report the action taken to the Provincial Government:---
Provided
that no order for the detention of the accused in a lunatic asylum .shall be
made otherwise than in accordance with such rules as the Provincial Government
may have made under the Lunacy Act, 1912.
(2)
Power of Provincial Government to relieve Inspector-General of certain
functions: The
Provincial Government may empower the officer incharge of the jail in which a
person is confined under the provisions of Section 466 or this section, to
discharge at! or any of the functions of the inspector General of Prisons under
Section 473 or Section 474.
472.
[Rep. by the Lunacy Act, 1912 IV of 1912), S, 101 and Schedule II.]
473.
Procedure where lunatic prisoner is reported capable of making his defence: If such person is detained under the
provisions of Section 466, and in the case of a person detained in a jail, the
Inspector-Genera! of Prisons, or, in the case of a person detained in a lunatic
asylum, the visitors of such asylum or any two of them shall certify, that, in
his or their opinion, such person is capable-of making his defence, he shall be
taken before the Magistrate or Court, as the case may be, at such time, as the
Magistrate or Court, appoints, and the Magistrate or Court shall deal with such
person under the provisions of Section 468, and the certificate of such
inspector-General or visitors as aforesaid shall be receivable as evidence.
474.
Procedure where lunatic detained under Section 466 or 471 is declared fit to be
released: (1) If such
person is detained under the provisions of Section 466 or Section 471, and such
Inspector-General or visitors shall certify that in his or their judgment, fie
may be released without danger or his doing injury to himself or to any other
person, the Provincial Government may thereupon order him to be released or to
be detained in custody, or to be transferred to a, public lunatic asylum; if he
has not been already sent to such an asylum; and, in case it orders him to be
transferred to an asylum, may appoint a Commission, consisting of a Judicial
and two medical officers.
(2) Such
Commission shall make forma! inquiry into the state of mind of such person, taking
such evidence as is necessary, and shall report to the Provincial Government,
which may order his release or detention as it thinks fit.
475.
Delivery of lunatic to care of relative or friend: (1) Whenever any relative or friend of
any person, detained under the provisions of Section 466 or Section 471 desires
that he shall be delivered to his care and custody, the Provincial Government
may, upon the application of such relative or friend and on his giving security
to the satisfaction of such Provincial Government that the person delivered
shall--
(a) be
properly taken care of and prevented from doing injury to himself or to any
other person, and
(b). be
produced for the inspection of such officer, and at such times and places, as
the Provincial Government may direct, and
(c) in
the case of a person detained under Section 466, be produced when required
before such Magistrate or Court, order such person-to be delivered to such
relative or friend.
(2) If
the person so delivered is accused of any offence the trial of which has been
postponed by reason of his being of unsound mind and incapable of making his
defence, and the Inspecting Officer referred to in sub-section (1), clause (b)
certifies at anytime to the Magistrate or Court that such person is capable of
making his defence, such Magistrate or Court shaft call upon the relative or
friend to whom such accused was delivered to produce him before the Magistrate
or Court; and, upon such production, the Magistrate or Court shall proceed in
accordance with the provisions of Section 468, and the certificate of the
inspecting officer shall be receivable as evidence.
CHAPTER
XXXV
PROCEEDINGS
IN CASE OF CERTAIN OFFENCES AFFECTING THE ADMINISTRATION OF JUSTICE
476.
Procedure in cases mentioned in Section 195: When any offence referred to in Section 195, sub-section
(1), clause(b) or clause (c), has been committed in or in relation to a
proceeding in any Civil, Revenue or Criminal Court, the Court may take
cognizance of the offence and try the same in accordance with the procedure
prescribed for summary trials in Chapter XXII.
(2) When
in any case tried under sub-section (1) the Court finds the offender guilty, it
may, notwithstanding anything contained in sub-section (2) of Section 262-
(a) pass
any sentence on the offender authorised by law for such offence, except
sentence of death, or imprisonment for life. or imprisonment exceeding five
years, if such Court be a High Court, a Court of Session, a District Court or
any Court exercising the power of a Court of Session or a District Court;
(b)
sentence the offender to simple imprisonment for a term which may extend to
three months, or to pay a fine not exceeding one thousand rupees, or both, it
such Court be a Court of a Magistrate of the First Class, a Civil Court other
than a High Court, a District Court or a Court exercising the powers of a
District Court, or a Revenue Court no inferior to Court of Collector.
(c)
sentence the offender to simple imprisonment for a term not exceeding on^
month, or to pay a fine not exceeding fifty rupees, or both, if such Court be a
Criminal Court or a Revenue Court other than a Court referred to in clause (a)
or clause (b).
(3) The
powers conferred on Civil, Revenue and Criminal Courts under this section may
be exercised in respect of any offence referred to in sub-section (1) and
alleged to have been committed in relation to any proceeding in such Court by
the Court to which such former Court is subordinate within the meaning of
sub-section (3) of Section 119.
(4) Any
person sentenced by any . Court under this section may, notwithstanding
anything hereinbefore contained; appeal-
(a) in
the case of a sentence by the, High Court, to the Supreme Court.
(b) in
the case of a, sentence by a Court of Session, or District Courts of a Court,
exercising the powers of a Court of Session-or a District Court, to the High
Court; and
(c) in
any other case, to the Sessions Judge.
(5) The
provisions of Chapter XXXI shall, so far as they are applicable, apply to
appeals under this section and the Appellate Court may alter the finding or
reduce or enhance the sentence appealed against.
476-A.
Forwarding of cases for trial by Courts having jurisdiction: (1) If the Court in any case considers
that the person accused of any of the offences referred to in Section 476,
sub-section (1), and committed in, or in relation to, any proceedings before
it, should not be tried under that section, such Court may, after recording the
facts constituting the Offence and the statement of the accused person, as
hereinbefore provided, forward the case to a Court having jurisdiction to try
the case, and may require security to be given for the appearance of such
accused person before such Court, or if sufficient security is not given, shall
forward such person in custody to such Court.
(2) The
Court to which a case is forwarded under this section shall proceed to hear the
complaint against the accused person in the manner hereinbefore provided.
476-B.
[Omitted by Law Reforms
Ordinance, XII of 1972].
477. [Rep. by the Code of Criminal Procedure
(Amendment) Act 1923, XVIII of 1923, S. 129
478-479.
[Omitted by Law Reforms
Ordinance, XII Of 1972].
480.
Procedure in certain cases of contempt: (1) When any such offence as is described in Section 175,
Section 178, Section 179, Section 180 or Section 228 of the Pakistan Penal Code
is committed in the view or presence of any Civil Criminal or Revenue Court,
the Court may cause the offender to be detained in custody and at any time
before the rising of the Court on the same day may,, if it thinks fit, take
cognizance of the offence and sentence the offender to fine not exceeding two
hundred rupees; and, in default of payment to simple imprisonment for a term
which may extend to one month, unless such fine be sooner paid.
(2)
[Omitted by Act, II of 1950, Sch.]
481.
Record in such cases: (1) In every such case the Court shall record the facts
constituting the offence, with the statement (if any) made by the offender, as
well as the finding and sentence.
(2) If
the offence is under Section 228 of the Pakistan Penal, Code the record shall
show the nature and stage of the judicial proceeding in which the Court
interrupted or insulted was sitting, and the nature of the interruption or
insult.
482.
Procedure where Court considers that case should not be dealt with under
Section 480: (1) If the
Court in any case considers that a person accused of any of the offences
referred to in Section 480 and committed in its view or presence should be
imprisoned otherwise than in default of payment of fine, or that a fine
exceeding two hundred rupees should be imposed upon him, or such Court is for
any other reason of opinion that the case should not be disposed of under
Section 480, such Court, after recording the facts constituting the offence and
the statement of the accused as hereinbefore provided, may forward the case to
a Magistrate having jurisdiction to try the same, and may require security to
be given for the appearance of such accused person before such Magistrate, or
if sufficient security is not given, shall forward such person in custody to
such Magistrate.
(2) The
Magistrate, to whom any case is forwarded under this section, shall proceed to
hear the complaint against the accused person in manner hereinbefore provided.
483.
When Registrar or Sub-Registrar to be deemed a Civil Court within Sections 480
and 482: When the
Provincial Government so directs, any Registrar or any Sub-Registrar appointed
under the [Registration Act, 1908] shall be deemed to be a Civil Court within
the meaning of Sections 480 and 482.
484.
Discharge of offender on submission of apology: When any Court has under Section 480 or
Section 482 adjudged an offender to punishment or forwarded him to a Magistrate
for trial for refusing or omitting to do anything which he -was lawfully required
to do or for any intentional insult or interruption, the Court may in its
discretion, discharge the offender or remit the punishment on his submission to
the order or requisition of such Court, or of apology being made to its
satisfaction.
485.
Imprisonment or committal of person refusing to answer or produce document: If any witness or person called to
produce a document or thing before a Criminal Court refuses to answer such
questions as are put to him or to produce any document or thing in his possession
or power which the Court requires him to produce, and does not offer any
reasonable excuse for such refusal, such Court may, for reasons to be recorded
in writing, sentence him to simple imprisonment, or by warrant under the hand
of the Presiding Magistrate or Judge commit him to the custody of an officer of
the Court for any term not exceeding seven days, unless in the meantime such
person consents to he examined and to answer, or to produce the document, or
thing. In the event of his persisting in his refusal, he may be dealt with
according to the provisions of Section 480 or Section 482, and in the case of a
High Court, shall be deemed guilty of a contempt;
486.
Appeals from convictions in contempt cases: (1) Any person sentenced by any Court under Section 480 or
Section 485 may; not withstanding anything hereinbefore contained, appeal to
the Court to which decrees or orders made in such Court are ordinarily
appealable.
(2) The
provisions of Chapter XXXI shall, so far as they are applicable, apply to appeals
under this, section, and the Appellate Court may; alter or reverse the finding,
or reverse the sentence appealed against .
(3)
[Omitted by AO Sch.]--
An
appeal from such conviction by a Court of Small Causes shall lie to the Court
of Session for the session division within which such Court is situate.
(4) An
appeal from such conviction by any officer as Registrar or sub-registrar
appointed as aforesaid may, when such officer is also Judge of a civil Court be
made to the Court to which. It would be under the preceding portion of this
section, be made if such conviction were a decree by such officer in his
capacity as such Judge, and in other causes may be made to the District Judge.
487.
Certain Judges and Magistrates not to try offences referred to in Section 195
when committed before themselves: (1)
Except as provided in Sections 476, 480 and 485 no Judge of a Criminal Court or
Magistrate, other than a Judge of a High Court, shall try any person for any
offence referred to in Section 195, when such offence is committed before
himself or in contempt of his authority, or is brought under his notice, as
such Judge or Magistrate in the course of a judicial proceeding.
(2)
[Omitted by taw Reforms Ordinance XII of 1972]
CHAPTER
XXXVI
[SECTIONS
488TO 490]: [Omitted by Federal Laws (Revision and Declaration) Ordinance,
XXVII of 1981.]
CHAPTER
XXXVII
DIRECTIONS
OF THE NATURE OF A HABEAS CORPUS
491.
Power to issue directions of the nature of a habeas corpus: (1) Any High Court may, whenever it
thinks fit, direct--
(a) that
a person within the limits of its appellate criminal jurisdiction be brought up
before the Court to be dealt with according to law;
(b) that
a person illegally or improperly detained in public or private custody within
such limits be set at liberty ;
(c) that
a prisoner detained in any Jail situated within such limits be brought before
the Court to be there examined as a witness in any matter pending or to be
inquired into in such Court;
(d) that
a prisoner detained as aforesaid be brought before a Court-martial or any
Commissioners for trial or to be examined touching any matter pending before
such Courtmartial or Commissioners respectively ;
(e) that
a prisoner within such limits be removed from one custody to another for the
purpose of trial; and
(f) that
the body of a defendant within such limits be brought in on the Sheriff’s
return of Cepi Corpus to a writ of attachment.
(2) The
High Court may, from time to time, frame rules to regulate the procedure in
cases under this section.
(3)
Nothing in this section applies to persons detained under any law providing for
preventive detention.
491-A.
Powers of High Court outside the limits of appellate jurisdiction; [Omitted by
the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (If of 1950),
Schedule.]
PART
IX
SUPPLEMENTARY
PROVISIONS
CHAPTER
XXXVIII
OF
THE PUBLIC PROSECUTOR
492.
Power to appoint Public Prosecutors: (1)
The Provincial Government, may appoint, generally, or in any case, or for; any.
specified class of cases, in any local area, one or more officers to be called
Public Prosecutors.
(2) [Officer-in-charge
of prosecution in the district] may, in the absence of the Public
Prosecutor, or where no Public Prosecutor has been appointed, appoint any other
person, not being an officer of police below such rank as the Provincial
Government may prescribe in this behalf to be Public Prosecutor for the purpose
of any case.
Subs.
by the Ordinance, XXXVII of 2001, dt.
493.
Public Prosecutor may plead in all Courts in cases under his charge-Pleaders
privately instructed to be under his direction: The Public Prosecutor may appear and
plead without any written authority before any Court in which any case of which
he has charge is under inquiry, trial or appeal, and if any private person
instructs a pleader to prosecute in any Court any person in any such case, the
Public Prosecutor shall conduct the prosecution, and the pleader so instructed
shall act therein, under his directions.
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:
495.
Permission to conduct prosecution: (1)
Any Magistrate inquiring into or trying any case may permit the prosecution to
be, conducted by any, person other than an officer of Police below the rank to
be prescribed by the Provincial Government in this behalf but no person, other
than the Advocate-General, Standing Counsel, Government Solicitor, Public
Prosecutor or other officer generally or specialty empowered by the Provincial
Government in this behalf, shall be entitled to do so without such permission.
(2) Any
such officer shall have the like power of withdrawing from the prosecution as
is provided by Section 494, and the provisions of that section, shall apply to
any withdrawal by such officer.
(3) Any,
person conducting the prosecution may do so personally or by a pleader.
(4) An
officer of police shall not be permitted to conduct the prosecution if he has
taken any part in the investigation into the offence with respect to which the
accused is being prosecuted.
CHAPTER
XXXIX
OF
BAIL
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).
497.
When bail may be taken in case of non-bailable offence: (1) When any person accused of any
non-bailable offence is arrested or detained without warrant by an officer in
charge of a police station, or appears or is brought-before a Court, he may be
released on bail but he shall not be so released if there appear reasonable
grounds for believing that he has been guilty of an offence punishable with
death or imprisonment for life or imprisonment for ten years:---
Provided
that the Court may direct that any person under the age of sixteen years or any
woman or any sick or infirm person accused of such an offence be released on
bail, provided further that a person accused of an offence as aforesaid shall
not be release on ball unless the prosecution has been given notice to show
cause why he should not be so released:
Proviso:
[Omitted by the Ordinance, LIV of 2001.]
(2) If
it appears to such Officer or Court at any stage of the investigation, inquiry
or trial, as the case may be that there are not reasonable: grounds, for
believing that the accused has committed a non-bailable offence; but that there
are sufficient grounds for further inquiry into his guilt, the accused shall,
pending such inquiry, be released on bail, or, at the discretion of such
officer or Court, on the execution ,by him of a bond without sureties for his
appearance as hereinafter provided.
(3) An
officer of a Court is releasing any person on bail under sub-section, (1) or
subsection
(2)
shall record in writing his or its reasons for so doing.
(4) If,
at any time after the conclusion at the trial of a person accused of a
non-bailable offence and before judgment is delivered, the Court is, of opinion
that there are reasonable grounds for believing that the accused is not guilty
of any such offence, it shall release
the accused, if he is in custody on the execution by him of a bond without
sureties for his appearance to hear judgment delivered.
(5) A
High Court or Court of Session and, in the case of a person released by itself
any, other Court may cause any person who has been released under this section
to be arrested and may commit him to custody.
498.
Power to direct admission to bah or reduction of bail: The amount of every bond executed under
this Chapter shad be fixed with due regard to the circumstances of the, case,
and shall, not be excessive and the High Court or Court of Session may in any
case, whether there be an, appeal on conviction or riot, direct that any person
be admitted to bail, or that the bail required by a police officer or
Magistrate be reduced.
498-A.
No bail to be granted to a person not in custody, in Court or against whom no
case is registered, etc.: Nothing
in Section 497, or Section 498 shall be deemed to require or authorise a Court
to release on bail, or to direct to be admitted to bail, any person who is not
in custody or is not present in Court or against whom no case stands registered
for the time being and an order for the release of a person on bail, or a
direction that a person be admitted to bail, shall be effective only in respect
of the; case that so stands registered against him and is specified in the
order or direction.
499.
Bond of accused and sureties: (1)
Before any person is released on bail or released on his own bond, a bond for
such sum of money as the police officer or Court, as the case may be, thinks
sufficient shall be executed by such person, and when he is released on bail,
by one or more sufficient sureties conditioned that such person shall attend at
the time and place mentioned in the bond, and shall continue so to attend until
otherwise directed by the police officer or Court, as the case may be.
(2) If
the case so requires, the bond shall also bind the person released on bail to
appear when called upon at the High Court, Court of Session or other Court to
answer the charge.
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.
501.
power to order sufficient bait when that first taken is insufficient: lf through mistake, fraud or otherwise,
insufficient sureties, have been accepted, or if they afterwards become insufficient,
the Court may issue a warrant of arrest directing that the person released on
bail be brought before it and may order him to find sufficient sureties, and,
on his failing so to do, may commit him to jail.
502.
Discharge of sureties: (1)
All or any sureties for the attendance and appearance of a person released on
bail may at and time apply to a Magistrate to discharge the bond, either wholly
or so far as relates to the applicants.
(2) On
such application being made, the Magistrate shall issue his warrant of arrest
directing that the person so released be brought before him.
(3) On
the appearance of such person pursuant to the warrant, or on his voluntary
surrender, the Magistrate shall direct the, bond to be discharged either wholly
or so far as relates to the applicants, and shall call upon such person to find
other sufficient sureties, and if he falls to do so, may commit him to custody.
CHAPTER
XL
OF
COMMISSIONS FOR THE EXAMINATION OF WITNESSES
503.
When attendance of witness may be dispensed with: (1) Whenever, in the course of an
inquiry, a trial or any other proceeding under this Code, it appears to a Court
of Session or the High Court that the examination of a witness is necessary for
the ends of justice, and that the attendance of such witness cannot be procured
without an amount of delay, expense or inconvenience which under the
circumstances of the case, would be unreasonable, such Court may dispense with
such attendance and may issue a commission to any Magistrate of the First
Class, within the local limits of whose jurisdiction, such witness resides, to
take the evidence of such witness.
(2)
[Omitted by Federal Laws (Revision and Declaration) Ordinance, XXVII of 1981].
(2-A)
When the witness resides- in an area in or in relation to which the President
has Extra-Provincial Jurisdiction Within the meaning of the Extra-Provincial
Jurisdiction Order, 1949 (G.G.O. No- 5 of 1949), the commission may be issued
to such Court or officer in the area as may be recognised by the President by
notification in the official Gazette as a Court or officer to which or to whom
commissions may be issued under this sub-section and within the local limits of
whose jurisdiction the witness resides.
(2-B)
When the witness resides in the United Kingdom or any other country of the
Commonwealth or in the Union of Burma or any other country in which reciprocal
arrangement, in this behalf exists, the commission may be issued to such Court
or Judge having authority in this behalf in that country as may be specified by
the Federal Government by notification in the Official Gazette.
(3) The
Magistrate or officer to whom the commission is issued, shall proceed to the
place where the witness is or shall summon the witness before him, and shall
take down his evidence in the same manner, and may for this purpose exercise
the same powers, as in trials of cases under this code.
(4)
Where the commission is issued to such officer as is mentioned in sub-section
(2-A), he may, in lieu of proceeding in the manner provided in Sub-section (3),
delegate his powers and duties under the commission to any officer subordinate
to him whose powers are not less than those of a Magistrate of the First Class
in Pakistan.
504.[Omitted byA,Q.,1949, Sch.].
505.
Parties may examine witnesses: (1)
The parties to any proceeding under this Code in which a commission is issued
may, respectively forward any interrogatories in writing which the Magistrate
or Court directing the commission may think relevant to the issue and when the
commissions is directed to a Magistrate or officer mentioned in Section 503,
such Magistrate or the officer to Whom the duty executing such commission has
been delegated shall! examine the witness upon such interrogations.
(2) Any
such party may appear before such Magistrate or officer by pleader, or if not
in custody, in person, and may examine, cross-examine and re-examine (as the
case may be) the said witness.
506.
Power of Magistrate to apply for issue of commission: Whenever, in the course of an inquiry or
a trial or any other proceeding under this Code before any Magistrate it
appears that a commission ought to the issuer for the examination of a witness
whose evidence is necessary for the ends of justice, .and that the attendance
of such witness cannot be procured without an amount of delay, expense or
inconvenience which under the circumstances of the case, would be unreasonable,
such Magistrate, shall apply to the Sessions Judge shall apply to the District
Magistrate]stating the reasons for the application and the Sessions Judge may
either issue a commission in the manner hereinbefore provided or reject the
application.
507.
Return of commission: (1)
After any commission issued under Section 503, or Section 506 has been duly
executed, it shall be returned, together with the deposition of the witness
examined there under, to the Court out of which it issued; and the commission;
the return thereto and the deposition shall be open at alt, reasonable times,
to inspection of the parties, and may, subject to all just exceptions, be read in
evidence in the case by either party, and shall form part of the record.
(2) Any
deposition so taken, if it satisfies the conditions prescribed by Article 47 of
Qanuni-Shahadat, 1984, may also be received in evidence at any subsequent stage
of the case before another Court.
508.
Adjournment of inquiry or trial: In
every case in which a commission is issued under Section-503 or Section 506,
the inquiry, trial or other proceeding may be adjourned for a specified time
reasonable sufficient for the execution and return of the commission.
508-A.
Application of this Chapter to commissions issued in Burma: The provisions of sub-section (3) of
Section 503, and so much of Sections 505 and 507 as relate to the execution of
commission and its return by the Magistrate or officer to whom the commission
is directed shall apply in respect of commissions issued by any Court or Judge
having authority in this behalf in the United Kingdom or in any other country
of the Commonwealth or in the Union of Burma or any other country in which
reciprocal arrangement in this behalf exists under the law in force in that
country relating to commissions for the examination of witnesses, as they apply
to commissions issued under Section 503 or Section 506.
CHAPTER
XLI
SPECIAL
RULES OF EVIDENCE
509.
Deposition of medical witness: (1)
The deposition of a Civil Surgeon or other medical witness, taken and attested
by a Magistrate in the presence of the accused, or taken on commission under
Chapter XL, may be given in evidence in any inquiry, trial or other proceeding
under this Code, although the deponent is not called as a witness
2)
Power to summon medical witness: The
Court may, if it thinks fit, summon and examine such deponent as to the subject
matter of his deposition.
510.
Report of Chemical Examiner, Serologist: Any document purporting to be a report, under the hand of
any Chemical Examiner or Assistant Chemical Examiner to Government or of the
Chief Chemist of the Pakistan Security Printing Corporation Limited or any
Serologist, fingerprint expert or fire-arm expert appointed by Government upon
any matter or thing duty submitted to him for examination or analysts and
report in the course of any proceeding under this Code, may, without calling
him as a witness, be used as evidence in any inquiry, trial or other proceeding
under this Code:---
Provided
that the Court may, if it considers necessary in the interest of justice,
summon and examine the person by whom such report has been made.
511.
Previous conviction or acquittal how proved: In any inquiry, trial or other proceeding wider this Code,
a previous conviction or acquittal may be proved, in addition to any other mode
provided by any law for the time being in force-
(a) by
an extract certified under the hand of the officer having the custody of the
records of the Court in which such conviction or acquittal was had to be a copy
of the sentence or the order.
(b) In
case of a conviction, either by a certificate signed by the officer incharge of
the jail in which the punishment or any part thereof was inflicted, or by
production of the warrant of commitment under which the punishment was
suffered, together with in each of such cases, evidence as to the identity of
the accused person with the person so convicted or acquitted.
512.
Record of evidence in absence of accused: (1) if it is proved that an accused person has absconded,
and that there is no immediate prospect of arresting him, the Court competent
to try of send for trial to the Court of Session or High Court such person for
the offence complained of may, in his absence, examine the witnesses (if any)
produced on behalf of the prosecution and record their depositions. Any such
deposition may, on the arrest of such person, be given in evidence against him
on the inquiry into, or trial for the offence with which he is charged if the
deponent is dead or incapable of, giving evidence or his attendance cannot be
procured without an amount of delay, expanse or inconvenience which, under the
circumstance’s of the case, would be unreasonable,
(2) Record
of evidence when offender unknown: if
it appears that an offence punishable with death or imprisonment for life has
been committed by some person or persons unknown, the High Court may direct
that any Magistrate of the First Class shall hold an inquiry and examine any
witnesses who can give evidence concerning the offence.
Any
depositions so taken may. be given in evidence against any person who is
subsequently accused of the offence, if the deponent is dead or -incapable of
giving evidence or beyond the limits of
CHAPTER
XLII
PROVISIONS
AS TO BONDS
513.
Deposit instead of recognizance: When
any person is required by any Court or officer to execute a bond, with or
without sureties, such Court or officer may, except in the case of a bond for good
behaviour, permit him to deposit a sum of money or Government promissory-notes
to such amount as the Court or officer may fix in lieu of executing such bond.
514.
Procedure on forfeiture of bond: (1)
Whenever it is proved to the satisfaction- of the Court by which a bond under
this Code has been taken, or of the Court of a Magistrate of the First Class,
or when
the bond is for appearance before a Court, to the satisfaction of such Court,
that
such bond has been forfeited, the Court shall record the grounds of such proof,
and may call upon any person bound by such bond to pay the penalty thereof, or
to show cause why it should not be paid.
(2) If
sufficient cause is not shown and the penalty is not paid, the Court may
proceed to recover the same by issuing a warrant for the attachment and, sale
of the movable property belonging to such person or his estate if he be dead.
(3) Such
warrant may be executed within the local limits of the jurisdiction of the
Court, which issued it; and it shall authorise the attachment, and sale of any
movable property belonging to such person without such limits, when endorsed by
the [District Officer Revenue] within the local limits of whose
jurisdiction such property is found.
(4) If
such penalty is not paid and cannot be recovered by such attachment and sale,
the person so bound shall be liable, by order of the Court which issued the,
Warrant, to imprisonment in the civil jail for a term which may extend to six
months.
(5) The
Court may; at its discretion remit any portion of the penalty mentioned and
enforce payment in part only.
(6)
Where a surety to a bond dies before the bond is forfeited, his estate shall be
discharged, from all liability in respect of the bond.
(7) When
any person who has furnished security under section 107 or section 108 is
convicted of an offence the commission of which constitutes a breach of the
condition of his bond, or of a bond executed in lieu of his bond under Section
5l4-B, a certified copy of the judgment of the Court by which he was convicted
of such offence may be used as evidence in proceedings under this section
against his surety or sureties, and, if such certified copy is so used, the
Court shall presume that such offence was committed by him unless the contrary
is proved.
Subs.
by the Ordinance, XXXVII of 2001, dt.
514-A.
Procedure in case of insolvency or death of surety or when a bond is forfeited:
When any surety to a
bond under this Code become insolvent or dies, or when any bond is forfeited
under the provisions of Section 514 the Court by whose order such bond was
taken or Magistrate of the First Class, may order the person from whom such
security was demanded to furnish fresh security in accordance with the
directions of the original order, and, it such security, is not furnished, such
Court or Magistrate may proceed as if there had been a default in complying
with such original order.
514-B.
Bond required from a minor: When
the person required by any Court or Officer to execute a bond is a minor, such
Court or officer may accept, in lieu thereof, a bond executed by a surety or
sureties only.
[515.
Appeal from and revision of, orders under Section 514: All orders passed by any Magistrate
under Section 514 shall be appealable to the Sessions Judge or, if no appeal is
preferred against any such order, may be revised by the Sessions Judge].
Subs.
by the Ordinance, XXXVII of 2001, dt.
516.
Power to direct levy of amount due on certain recognizance: The High-Court or Court of Session may
direct any Magistrate to levy the amount due on a bond to appear and attend at
such High Court or Court of Session.
CHAPTER
XLIII
OF
THE DISPOSAL OF PROPERTY
516-A.
Order for custody and disposal of property pending trial in certain cases: When any property regarding which any
offence appears to have been committed or which appears to have been used for
the commission of any offence, is producer before any Criminal Court during any
inquiry or trial, the Court may make such order as it thinks fit for the proper
custody of such property pending the conclusion of the inquiry or trial, and,
If the property is subject to speedy or natural decay, may, after recording
such evidence as it thinks necessary, order it to be sold or otherwise deposed
of,---
Provided
that, if the property consists of explosives substance, the Court shall not
order It to be sold or handed over to any person other than a Government
Department or office dealing with, or to an authorised dealer in such
substances:---
Provided
further that if the property is a dangerous drug, intoxicant, intoxicating
liquor or any; other narcotic substance seized or taken into custody under the
Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of 1969), the
Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or any other
law for the time being in force, the Court may, either on. an application or of
its own motion and under its supervision and control, obtain and prepare such
number of samples of the property as it may deem fit for safe custody and
production before it or any other Court and cause destruction of the remaining
portion of the property under a certificate issued by it in that Behalf:---
Provided
also that such samples shall be deemed to be whole of the property in an
inquiry or proceeding in relation to such offence before any authority or
Court.
517.
Order for disposal of property regarding which offence committed: (1) When an inquiry or a trial in any
Criminal Court is concluded, the Court may make such order as it thinks fit for
the disposal by destruction, confiscation, or delivery to any person claiming
to be entitled to possession thereof or otherwise of any property or document
produced before it or in its custody or regarding whiter any offence appear to
have been committed or which has been used for the commission of any offence.
(2) When
a High Court or Court of Sessions makes such order and cannot through its own
officers conveniently deliver the property to the person entitled thereto, such
Court may direct that the order be carried into effect by the [District
Officer (Revenue)]
(3) When
an, order is made under this section such order shall not except where the
property is livestock or subject to speedy and natural decay, and save as
provided by subsection (4), be carried out for one month, or, when an appeal is
presented, until such appeal has been disposed of.
(4)
Nothing in this section shall be deemed to prohibit any Court from delivering
any property under the provisions of sub-section (1) to any person claiming to
be entitled to the possession thereof, on his executing a bond with or without
sureties to the satisfaction of the Court; engaging to restore such property to
the Court if the order made under this section is modified or set aside on
appeal.
Explanation:
In this section the term “property” includes in the case of property regarding
which an offence appear to have been committed, not only such property as has
been originally in the possession or under the control of any party, but also
any property into or for which the same may have been converted or exchanged,
and anything acquired by such conversion or exchange, whether immediately or
otherwise.
Subs.
by the Ordinance. XXXVII of 2001, dt.
518.
Order may take form of reference in lieu of itself passing an order under Section
517: The Court may
direct the property to be delivered to [a Magistrate of the First Class] who
shall in such cases deal with if as if it had been seized by the police and the
Seizure had been reported to him in the manner hereinafter mentioned.
Subs.
by the Ordinance. XXXVII of 2001, dt.
519.
Payment to innocent purchaser or money found on accused: When any person is convicted of any
offence which includes, or amounts to, theft or receiving stolen property, and
it is proved that any other person has bought the stolen property from him
without knowing, or having reason to believe, that the same was stolen, and
that any money has on his arrest been taken out of the possession of the
convicted person, the Court may, on the application of such purchaser and on
the restitution of the stolen property to the person entitled to the possession
thereof order that out of such money a sum not exceeding the price paid by such
purchaser be delivered to him.
520.
Stay of Order under Section 517,518 or 519: Any Court of appeal, confirmation, reference or revision
may direct any order under Section 517, Section 518, or Section 519, passed by
a Court subordinate thereto, to be stayed pending consideration by the former
Court, and may modify, alter or annul such order and make any further orders
that may be just.
521.
Destruction of libellous and other matter: (1) On a convict under the Pakistan Penal Code, Section
292, Section 293 Section 501 or Section 502 the Court may order the destruction
of all the copies of that thing in respect of which the conviction was had, and
which are in the custody of the Court or remain En the possession or power of
the person convicted,
(2) The
Court may, in like manner on a conviction under Pakistan Penal Code, Section
272, Section 273, Section 274 or Section 275, order the food, drink, drug or
medical preparation in respect of which the conviction was had to be destroyed.
522.
Power to restore possession of immovable property: (1) When ever a person is convicted of
an offence of cheating or forgery or of an offence] attended by criminal force
or show of force or by criminal intimidation and it appears to the Court that
by such cheating forgery, force of Show of force of criminal intimidation any
person has been dispossessed of any immovable, property the Court may, if it
thinks fit when convicting such person or at any time within one month from the
date of the conviction order the person dispossessed] to be restored to the
possession of the same, whether such property is in the possession or under the
control of the person convicted or of any other person to Whom it may have been
transferred for any consideration or Otherwise.
(2) No
such order shall prejudice any right or interest to or in such immovable
property which any person may be able to establish in a civil suit.
(3) An
order under this section may be made by any Court of appeal, confirmation,
reference or revision.
522-A.
Power to restore possession of movable property: (1) Whenever a person convicted of an
offence of criminal misappropriation, of property or criminal breach of trust
or cheating or forgery and it appears to the Court that, by such
misappropriation, breach of trust, cheating or forgery, any person has been
dispossessed or otherwise deprived of any movable property, the Court may, if
thinks fit, when convicting such person or at any time within the month from
the date of the conviction, order the person dispossessed or deprived of the
property, where such property can be identified, to be restored to the possession
of such property, whether such property is in the possession or under the
control of the person convicted or of any other person to whom it may have been
transferred for any consideration or otherwise.
(2)
Where the property referred to in sub-section (1) cannot be identified or has
been disposed of. by the accused so that it may not be identified, the Court
may order such compensation to be paid to the person dispossessed or deprived
of such property as it may determine in the circumstances of the case.
(3) No
order referred to in sub-section (1) or sub-section (2) shall prejudice any
right or interest in any movable property which any person may be able to
establish in a civil suit.
523.
Procedure by police upon seizure of property taken under Section 51 or stolen: (1) The seizure by any police officer of
property taken under Section 51, or alleged or suspected to have been stolen,
or found under circumstances which create suspicion of the commission of any
offence shall be forthwith reported to a Magistrate who shall make such order
as he thinks fit respecting the disposal of such property or the delivery of
such property to the person entitled to the possession thereof, or if such
person cannot be ascertained, respecting the custody and production of such
property.
(2)
Procedure where owner of property seized unknown: If the person so entitled is
known, the Magistrate may order the property to be delivered to him on such
conditions (if any) as the Magistrate thinks fit. If such person is unknown, the
Magistrate may detain it and shall, in such case, issue a proclamation
specifying the articles of which such property consists, and requiring any
person who may have a claim thereto, to appear before him and establish his
claim within six months from the date of such proclamation.
524.
Procedure where no claimant appears within six months: (1) If no person within such period,
establishes his claim-to-such property; and if the person in whose possession
such property was found, is unable to show that it was legally acquired by him,
such property shall be at the disposal of the Provincial Government and may be
sold under the orders of [Magistrate of the First Class] empowered by
the Provincial Government in this behalf.
(2) In
the case of every order passed under this section, an appeal shall lie to the
Court to which appeals against sentences of the Court passing such order would
lie.
Subs.
by the Ordinance. XXXVII of 2001, dt.
525.
Power to sell perishable property: If
the person entitled to the possession of such property is unknown or absent and
the property is subject to speedy and natural decay, or if the Magistrate to
whom its seizure is reported is of opinion that its sale would be for the
benefit of the owner, or that the value of such property is less than ten
rupees, the Magistrate may at any time direct it to be sold; and the provisions
of Sections 523 and 524 shall as nearly as may be practicable, apply to the net
proceeds of such sale.
CHAPTER
XLIV
OF
THE TRANSFER OF CRIMINAL CASES
526.
High Court may transfer case or itself try it: (1) Whenever it is made to appear to the
High Court—
(a) that
a fair and impartial inquiry or trial cannot be had in any Criminal Court
subordinate thereto, or
(b) that
Some question of law of unusual difficulty is likely to arise, or
(c) that
a view of. the, place in or near which any offence has been committed may be
required for the satisfactory inquiry into a trial of the same, or
(d) that
an order under this section will tend to the general convenience of the parties
or witnesses, or
(e) that
such an order is expedient for the ends of justice, or is required by any
provision of this Code; it may order
(i) that
any offence be inquired into or tried by any Court not empowered under Sections
177 to 184 (both inclusive) but in other respects competent to inquire into or
try such offence;
(ii)
that any particular case or appeal; or class of cases or appeals, be
transferred from a Criminal Court subordinate to its authority to any other
such Criminal Court of equal or superior jurisdiction;
(iii)
that any particular case or appeal be transferred to and tried before itself;
or
(iv)
that an accused person be sent for trial to itself or to a Court of Session.
(v) When
the High Court withdraws for trial before itself any case from any Court, it
shall, observe in such trial the same procedure which that Court would have
observed if the case had not been so withdrawn.
(3) The
High Court may act either on the report of the
(4)
Every application for the exercise of the power conferred by this section shall
be made by motion, which shall except when the applicant is the
Advocate-General, be supported by affidavit or affirmation.
(5) When
an accused person makes an application, under this section, the High Court may
direct him to execute a bond, with or without sureties, conditioned that he
will, if so ordered, pay any amount which the High Court may under this Section
award by way of compensation to the person Opposing the application.
(6)
Notice to Public Prosecutor of application under this section .Every accused
person making any such application shall give to the Public Prosecutor notice
in writing of the application, together with a copy of grounds on which it is
made, and no order shall be made on the merits of the application unless at
least twenty-four hours have elapsed between the giving of such notice and the
hearing of the application.
(6-A)
Where any application for the exercise of the power conferred by this section
is dismissed, the High Court may if it is of opinion that the application was
frivolous or vexatious, order the applicant to pay by way of compensation to
any person who has opposed the application such sum not exceeding five hundred
rupees as it may consider proper in the circumstances of the case.
(7)
Nothing in this section shall be deemed to affect any order made under
Section197.
(8)
Adjournment on application under this section: If in any inquiry under Chapter
VIII or any trial, the fact that any party intimates to the Court at any stage
that he intends to make an application under this section shall not require the
Court to adjourn the case, but the Court shall not pronounce its final judgment
or order until the application has been finally disposed of by the High Court
and, if the application is accepted by the High Court, the proceedings taken by
the Court subsequent to the intimation made to it shall, at the option of the
accused be held afresh.
(9) If,
before the argument (if any), for the admission of an appeal begins, or, in the
case of an appeal admitted, before the argument for the appellant begins, any
party interested intimates to the Court that he intends to make an application
under this section, the Court, shall, upon such party executing, if so
required, a bond without sureties of an amount not exceeding five hundred
rupees that he will make such application within a reasonable time to be fixed
by the Court, postpone the appeal of such a period as will afford sufficient
time for application to be made and an order to be obtained thereon.
526-A.
High Court to transfer for trial to itself in certain cases: [Omitted by Code
of Criminal Procedure (Amdt.) Ordinance, XX of 1969. S. 2].
527.
Power of Provincial Government to transfer cases and appeals: (1) The Provincial Government may, by
notification in the 5o[0fficial Gazette], direct the transfer of any particular
case or appeal from one High Court .to another High Court or from any Criminal
Court subordinate to one High Court, to any other Criminal Court of equal or
superior jurisdiction subordinate to another High Court, whenever it appears to
it that such transfer with promote the ends of justice, or tend to the general
convenience of parties or witnesses:---
Provided
that no case or appeal shall be transferred to a High Court or other Court in
another Province, without the consent of the Provincial Government of that
Province.
(2) The
Court to which such case or appeal is transferred shall deal with the same as
if it had been originally instituted in, or presented to/such Court.
528:
Sessions Judge may withdraw cases from Assistant Sessions Judge: (1) Any Sessions Judge may withdraw any
case from, or re-call any ease which he has made over to, any Assistant Sessions
Judge subordinate to him.
(1-A) At
any time before the trial of the case or the hearing of the appeal has
commenced before the Additional Sessions Judge, any Sessions Judge may re-call
any case or appeal which he ha-s made over to any Additional Sessions Judge.
(1-B)
Where a Sessions Judge withdraws or re-calls a case under sub-section (1) or
recalls a case or appeal under sub-section (1-A), he may either try the case in
his own Court or hear the appeal himself, or make it over in accordance with the
provisions of the Code to another Court for trial or hearing, as the case may
be.
(1-C)
Any Sessions Judge may withdraw any case from, or re-call any case which he has
made over to any Magistrate subordinate to him, and may refer it for inquiry or
trial to any, other such Magistrate competent to inquire into or try the same.
Explanation:[Omitted
by legal Reforms Act, XXXIII of 1997.
(4) Any
Magistrate may re-call any case made over by him under Section 192, Subsection
(2), to
any other Magistrate and may inquire into or try such case himself.
(5) A
Magistrate making an order under this preceding sub-section shall record in
writing his reasons for making the same.
(6)
[Omitted A.O., 1949, Sch.]
[528-A.
Powers of District Magistrate for transfer of cases etc.: Omitted by the
Ordinance, XXXVII of 2001, dt.
CHAPTER
XLIV-A
SUPPLEMENTARY
PROVISIONS-RELATING TO EUROPEAN AND
[Omitted
by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949 (II of
1950), Schedule].
CHAPTER
XLV
OF
IRREGULAR PROCEEDINGS
529.
Irregularities which do not vitiate proceedings: If any Magistrate not empowered by law
to do any of the following things, namely:---
(a) to
issue a search warrant under Section 98;
(b) to
order, under Section 155, the police to investigate an offence;
(c) to
hold an inquest under Section 176;
(d) to
issue process, under Section 186, for the apprehension of a person within the
local limits of his jurisdiction who has committed an offence outside such limits;
(e) to
take cognizance of an offence under Section 190. sub-section (1), clause (a) or
clause (6),
(f) to
transfer a case under Section 192;
(g) to
tender a pardon under Section ‘337 or Section 338;
(h) to
sell property under Section 524 or Section 525; or
(i) to
withdraw a case and try it himself under Section 528.
erroneously
in good faith does that thing, his proceedings shall not be set aside merely on
the ground of his not being so empowered.
530.
Irregularities which vitiate proceedings: If any Magistrate, not being empowered by law in this
behalf, does any of the following things namely:-
(a)
attaches and sells property under Section 88;
(b)
issues a search-warrant for a letter, parcel or other thing in the Post Office,
or a telegram in the Telegraph Department;
(c)
demands security to keep the peace;
(d)
demands security for good behaviour;
(e)
discharges a person lawfully bound to be of good behaviour;
(f)
cancels a bond to keep the peace;
(g)
makes an order under Section 133, as to a local nuisance;
(h)
prohibits, under Section 143, the repetition or continuance of a public
nuisance;
(i)
issues an order under Section 144;