Updated: Thursday January 14, 2010/AlKhamis Muharram 29, 1431/Bruhaspathivara Pausa 24, 1931, at 07:11:56 PM
1. The Criminal Procedure Code, 1898 (Act V of 1898) as amended upto date.
1. The Code of Criminal Procedure, 1898 by Muhammad Mahmood-ul-Hassan.
2. The Code of Criminal Procedure with commentary by Muhammad Mazhar Hassan Nizami.
Crime or offence is an illegal act or omission prohibited by and punishable at law; and for which a special procedure is provided at law to punish the offender.
Mens rea and actus
Arrest: To arrest a person is to deprive him of his liberty by some lawful authority for the purpose of compelling his appearance to answer a criminal charge, or as a method of execution. Arrest is restrain of movement or liberty.
Offences are classified under law. Some are compound-able & non-compound-able, cognizable & non-cognizable, bail-able & non-bail-able etc. There are certain exemptions in such classifications. Some are exempt from arrest or detention.
Cognizable offences: Cognizable offences are those in which police can take action without having warrant from Magistrate keeping in view of the gravity of the offence committed or likely to commit. Only serious crimes such as murder or injury or such like offences come under cognizable offences. Schedule 2 of Code of Criminal Procedure determines whether which offence comes under cognizable. Bail is not granted in cognizable offences. Private person can also arrest the offender. He may either take offender to Police Station or informs Police Officer regarding his apprehension.
This section provides powers to police to apprehend the offenders even than offence is not committed but merely it is designed to commit. Where there is apprehension of the commission of the crimes, police may take action to prevent the commission of crime. Law does not wait the commission of crime. It is killed before its birth. The only caution, which the Police Officer has to take, is that he is to be satisfied that the commission of the offence could not be otherwise prevented. Object of this action is to prevent commission of cognizable offence by arresting person before hand who intends to commit such an offence. Police Officer arresting such a person must have knowledge that he had designed to commit a cognizable offence.
The law on preventive detention only authorizes a Police Officer of the requisite rank to arrest a person whom he reasonably suspects of having done or of doing or of being about to do a prejudicial act. Whether the suspicion is reasonable or not, is a justice-able question. The arresting officer therefore has to satisfy the Court that he entertained his suspicion against the detention on reasonable grounds.
A mere apprehension of breach of peace does not entitle Police Officer to arrest a person u/s 151 of Code of Criminal Procedure. There must be some material before the police that the case was one of emergency and that without arrest the commission of offence could not be prevented.
Arrest without warrant u/ss 54 & 65: Police can arrest a person without obtaining warrants from the Court under following circumstances:
1. Cognizable offence:
2. Vagabonds (wanderer):
3. Habitual robber:
4. Preventive detention:
5. Offences committed before Magistrate:
6. Suspect of offence:
7. Injury to public property:
8. Reasonable suspicion of crime:
9. House breaking:
10. Proclaimed offender:
11. Having stolen property:
12. Causing obstruction in police duty:
13. Escaped person:
14. Attempt to escape from lawful custody:
15. Life beyond reasonable sources:
16. Private arrest:
Non-cognizable offences: Offences, which are not cognizable, are non-cognizable. Police requires prior warrant to apprehend the offender. Private person cannot arrest the offender who is committing the offence. Private person may inform police authorities about the commission of offence but he himself cannot take actions. In sum, non-cognizable offences are vice versa of the cognizable offences. Serious crimes do not come under non-cognizable offences.
U/s 155 of Code of Criminal Procedure it not obligatory for police to register First Information Report in first instance. However information is recorded in diary kept in Police Station. It is also called Rozenamcha. Information of the offence committed is referred to concerned Magistrate. Investigation is made after the approval of Magistrate in the manner prescribed for cognizable offences. However police cannot arrest the offender without having arrest warrants. Police is liable to make investigations upon the supply of information of the commission of non-cognizable offence. These investigations may take time in its completion. Police register the case as First Information Report upon the completion of investigation and found it liable to register. Time consumed in investigation does not effect the genuineness of the case. Detention of the offender without permission of Magistrate is illegal thus prohibited. Police is liable to pay cost when acts without jurisdiction.
Bail: An accused person is admitted to bail when he is released from the custody of officers of the law and is entrusted to the custody of person known as his sureties, who are bound to produce him to answer, at a specified time and place, the charge against him, and who, in default of so doing, are liable to forfeit such sum as is specified when bail is granted.
Bails are sureties for the accused, who enter into recognizance for his appearance, he also entering into a similar recognizance.
Bail therefore means the contract whereby the accused is released to his sureties, and also the sureties themselves. A contract, whether by a person bailed or by a third party, to indemnify a surety is void as being against public policy and is a misdemeanor. It is release or handing over of the accused from the custody of law.
Petty offences are subject of bail as the petty ailment allows mixing with others till severity of ailment.
Person who does not care of law and becomes beast requires to behind the bars. His offence does not come under the bail-able offences. Good place for the animals is cage.
There are certain provisions of law, which provide grounds for the bail against serious crimes, e.g., during the pendency or revision of case till two years case comes under bail-able offence.
If the accused is not responded till two years in a case punishment of which is ten years, bail can be prayed.
There are some crimes compound-able (to agree to accept a composition) and some are non compound-able. To ensure constitutional guarantees no one can be deprived from his vested right in due course of law. No offence should be committed against body and property. If the offences are committed then state is responsible to compensate by state created law-enforcing agencies. Police is watchdog of the people. They have to protect people in streets and roads. They perform their duties in streets, roads, on cycle, on foot but practically crimes are committed under the garb of law. Where there is police there is crime. If crimes are committed the accused is tried and witnesses are provided by state. Government also ensures evidence. Victim has not to pay anything. Commission of crime is negligence of police. Efficient performance reduces the magnitude of offences. If vigilance is observed then amount of offences can be reduced.
There are certain satisfactions against offences. One of them is punishment or taking law into hands. But the greater and bigger satisfaction is pardon. Pardon is granted in the particular crimes, which are compound-able. When a person is killed without lawful justification then a pedigree tree is cut down. No person remains left to carry on family. Compensation is granted keeping in view of the financial condition of the criminal. Compensation is no fine and something apart from fine. Compensation is provided if the status of offender is proved.
Petty offences are bail-able. But the crimes, which are committed against the society or groups of persons or state, they do not bear compound-ability. Government has to run the affairs of state. We see that murder is compound-able but violation of signal is not compound-able. Since it is against society and government has no right to compound it. Even fine of Rs. 200/- is imposed but pardon is not granted. Its remittance may cause abundance (plenty, flood) of crimes.
Small matters should be dealt with mutual understanding of the parties concerned. Forgiveness or pardon is another source of getting satisfaction. It promotes the factors of responsibility and humanity. If anybody gets furious or wild, other one should avoid irritating him more. He should sit or take little amount of water. It not only mitigates the emotion of hate but also promotes the passions of harmony. During the state of love nobody gives divorce to his wife. Only hate makes it possible. Soft and polite is result of love and affection.
Person who brings his sister to other person cannot claim provocation if she is seen with the person who is alien. There is exception in rule to adopt little wrong for bigger good thus its commission would not be crime. When children quarrel, parents do not take care, it but they feel when they quarrel at the age of youth. In the cases where compound-ability is not allowed party may withdraw her case after reaching the state of compound-ability. Bail-able crimes are also compound-able but not in every case. Nobody can be deprived from his legal right of liberty until convicted. Washing of hands can wipe dust but in some cases mere washing becomes insufficient. When a person becomes brutal then he is kept in different place. Similar dose is required to cool down him.
Bail application/petition can be decided even in the absence of accused at later stage on merits either he is ill. Reliance is placed on 199 MLD 976, 1981 P. Cr. L. J. 61, and 2000 P. Cr. L. J. 138.
Matters to be considered for grant of bail: Following points are considered:
1. Whether there are reasonable grounds for believing that the accused has committed the offence.
2. Nature and gravity of charge.
3. Severity of punishment in case of conviction.
4. Apprehension of abscondence when released on bail.
5. The Character, the means, and the standing of the accused.
6. Danger of witnesses being tampered with.
8. The period for which the petitioner has been in jail and when the trial is likely to conclude.
9. Whether the petitioner is named in FIR or his description is given in it.
10. Time taken in the lodging the FIR, whether prompt.
11. Whether the accused is previous convict.
12. Whether reasonable possibility of false implication of the accused/petitioner cannot be ruled out. PLD 1997 Kar. 165 Sajjad Hussain.
13. Every accused is presumed not to be guilty.
14. Process of trial should not to be allowed to be defeated.
15. Possibility of commission of further offence to be safeguarded. PLD 1963 Lah. 279 Iqbal.
16. In cases of offences, punishable with death, imprisonment for life or imprisonment for ten years.
1) Benefit of reasonable doubt.
2) Identity of the accused.
3) Part allegedly played by the accused in the occurrence.
4) His presence at the spot and question of vicarious liability would be considered at bail stage. PLD 1995 SC 34 Tariq Bashir etc.
17. Allegations made in FIR.
18. Statements made in FIR.
19. Other incriminating material against the accused.
raised by the accused. PLJ
21. Statute carrying, lesser punishment to be considered for the purpose of bail when accused is charged under two different statutes. PLJ 1996 Cr. C. (Pesh.) 1277 Ghani-ur-Rehman.
First Information Report: Government has set up different agencies to comply with constitution. Police is watchdog of the public. Police patrols in street to street, bazaar to bazaar, road to road etc. Police ensures the right of liberty of person. They protect them from violence. Protection of life and property is right of people which law enforcing agencies protect. Every cognizable offence must be reported to police. Areas are divided into small pocket for effective control over offenders. Law enforcers have to look into matters relating to violence. Police has to maintain each and every thing. Police is servant. When offence is committed, police must be informed immediately. It is cognizable by the Police Officer in whose jurisdiction offence is committed. In-charge of police station is termed as Station Housing Officer. Police Station may either be tent, vessel, or building. It must be notified and identified.
First Information Report is simply information for commission of an offence to move the concerned agency. It is not essential to give all details regarding the commission of an offence. The term “First Information Report” is construed as the earliest communication or intimation of crime to the state agency, to set it in motion to undertake investigation.
A third person may make the information or an eyewitness, as the primary object of such information is to move the machinery in action to undertake inquiry and investigation in the alleged crime. Everything is taken into custody upon apprehension, e.g., wristwatch, blood stained clothes, weapon of death, papers, and all other necessary articles etc.
Police officials are under statutory obligation to enter the information relating to the commission of a cognizable offence in the prescribed register. Refusal violates mandatory provision of S. 23 of Police Act. Police Officer should first register a case and then form an opinion whether the facts stated in First Information Report are true or not. Fate of accused nominated in First Information Report cannot be solely decided on the allegations made in the First Information Report. Merely by making allegation against a person with regard to commission of a particular offence does not make a person accused of that allegation until and unless some evidence connecting the person with alleged crime is collected by the investigating agency. First Information Report cannot be treated as a substantive piece of evidence, it is only meant for corroboration or contradiction.
Oral information: Police Officer has to register case where oral information conveyed about commission of offence. Information received by telephone or telegram is also relevant. Later on informer may be called for putting signature on First Information Report but as far as recording of the First Information Report is concerned it must be brought on record. Written information is immaterial.
Where passerby gives information of commission of offence and unknown source reveals the commission of crime, Police Officer may himself is duty bound to visit the place of occurrence.
Essentials of First Information Report: Following are the essential of First Information Report:
1. Information of cognizable offence.
2. If the information is given verbal, it must be brought on record.
3. If the information is received in writing, it must be entered on register.
4. It must be read out to the complainant for his satisfaction.
5. Recording of First Information Report within shortest possible time. Delay leads to doubt.
6. Use of proper channel, i.e., Police Officer cannot record First Information Report at the residence of victim.
7. It must be signed where it is possible.
8. One copy to maker of First Information Report.
Process of the criminal trial: Following points are important in the criminal trial:---
1. Offence and its gravity.
2. Lodging of FIR.
3. Arrest of accused from certain place.
4. Remand or bail.
5. Statements u/s 161 of Cr. PC.
6. Recovery memos.
7. Injury report.
9. Application for MLR.
10. Medico legal Report in case of injuries.
11. Application for PMR.
12. Death report.
13. Post Mortem Report in case of death.
14. Laboratory reports such as Chemical Examiner, Serologist, and Forensic Laboratory.
15. Handing over dead body and its acknowledgement.
16. List of witnesses.
17. List of heirs.
18. Site plant with and without scale.
Importance of First Information Report: Following points can be described in order to underline the need of First Information Report:
1. Base of trial: It sets the law into motion to trace out the law breakers.
2. Immediate recording: It immediate lodgment strengthens its trustworthiness.
3. To set criminal law in motion: It set the law into motion.
4. Collection of evidence: It leads to collect evidence against the offence.
5. Public document: It is a public document and every citizen may obtain it.
6. Registration through writ: Where there is refusal by the police, it can be get registered through writ petition.
7. Once recorded cannot be quashed: It cannot be quashed except as procedure defines.
Motive: Fact regarding motive not be fully explained in First Information Report. Its enquiry may cause in the escape the offender thus on investigation. First Information Report is starting point to put law-enforcing agencies into motion in criminal proceedings.
Supplement First Information Report: First Information Report cannot be changed when once recorded but it can be supplemented if the material fact is omitted or later on reveals. It can also be withdrawn at any stage of proceedings before final judgement. It can be got corrected. Counter First Information Report can be got recorded within the same Police Station of the jurisdiction. It is not substantive piece of law. Second step cannot be taken without registration of FIR. Where subsequent step has been taken, i.e., investigation or trial, right of supplement FIR extinguishes.
Recording outside Police Station: Where First Information Report is recorded outside the Police Station, it is disapproved by the High Court thus it can be got registered within the premises of Police Station.
False information: Police is under obligation to register the case u/s 154 of the Code of Criminal Procedure. Its refusal leads proceeding under Article 199 of the Constitution in High Court. Session Judge is supposed the chairman of the human rights in the district. Complaint can also be lodged in the Court of Session. It shall not be out of place to express that through the introduction of S. 182 of Pakistan Penal Code. The Legislature has placed the check and introduced the balance by making liable the complainant u/s 182 of Pakistan Penal Code if the information given by him is ultimately found to be false during the investigation. Investigation whether the information given is true or false is second step of First Information Report. Whether it is true or false is not base of non-recording of it.
S. 211 of Pakistan Penal Code imposes punitive action against the person who institutes criminal proceedings or makes a false charge against innocent person to cause him injury. S. 218 of Pakistan Penal Code is also punitive action as against the person who commits forgery in documents to save wrongful person from punishment.
Who may get registered FIR: Any person either victim, his relative, passerby, neighbour, friend can get First Information Report registered. Presence of victim is immaterial. It cannot be used against the informer as confession. Confession before Police Officer is irrelevant unless it is made before competent Court. It is neither comprehensive document nor minute details can be supplied. It merely spells out the occurrence of incident. Name of accused can be mentioned if known, but if it is not known, it becomes immaterial. First Information Report should be got recorded promptly without losing time. Lapse of time causes suspect in the truth of the occurrence. If delay is explainable then it does not matter, however, immediate report strengthens the case.
Constitution of Complaint Cell: Under the provision of the Code, there is no scope of First Information Report constitution of any Complaint Cell and the Cell has no competency to encroach upon the powers of the Court. U/s 169 of Code of Criminal Procedure when it appears to Police Officer conducting investigation that there is no sufficient evidence available to justify the forwarding of the accused in custody to the Magistrate, he may only release him on executing a bond with or without surety but is no empowered to omit the name of the accused from challan.
Complaint: Complaint is not used in its ordinary words. It is an allegation made orally or writing to a Magistrate, with a view to his taking action under Code of Criminal Procedure, that some person whether known or unknown, has committed an offence, but it does not include the report of a Police Officer.
A complaint in a criminal case is what a plaint is in a civil case. It is one of the modes in which a Magistrate can take cognizance of an offence.
Report to police may be either oral or written. Everybody does not know the art of writing. When offence is committed and informed to police, police is obliged to:
1. Convert oral statement into writing.
2. Every written statement must be read out before the person who takes it into the notice of police, if he is illiterate.
3. It is signed or thumb impression is affixed.
4. Blank space is not left so that it may not be manipulated.
5. It is prepared in quadruplets and one of each is delivered to individual who informs to police, second one is sent to Magistrate, third one is sent to Superintendent of Police, and fourth one is kept in Police Station.
Recording of wrong statement itself is offence u/s 182 of Pakistan Penal Code. It may either be partially right or wrong. Upto the extent of wrong, the person arrested shall be released immediately if the evidence is not produced.
First Information Report does not follow any specific format or wording. It may be written. It is reproduced in official register. Sometime written statement itself is pasted on official register after making some necessary transactions.
Registration of First Information Report cannot be denied. Denial may put maker into writ petition. Writ is issued for necessary registration.
In the absence of Station Housing Officer, next to him is delegated powers of Station Housing Officer. But in any case common police man cannot be delegated the powers of Station Housing Officer. Head Constable is the last person who may be delegated the powers of Station Housing Officer.
U/s 154 of Code of Criminal Procedure it is obligatory for police to register First Information Report regardless its genuineness. This section applies on cognizable offenses only.
Investigation u/s 156: Police may make investigation without having permission of Magistrate in cognizable offences. Action of police is protected u/s 156.
Procedure where cognizable offence is suspected u/s 157: When Police Officer suspects that cognizable offence is likely to commit or designed for commission, he may with the permission of Magistrate investigate the matter for its prevention. First Information Report is not recorded in first instance until sufficient proof received by mean of investigation or report of expert. Preliminary inquiry is made on spot. In order to ascertain the commission of offence, samples may be sent to expert for laboratory analysis. Further step cannot be taken without permission of Magistrate.
Reports u/s 157 how submitted u/s 158: Every report, which is liable to send to Magistrate, shall be communicated to him through superior officer of police as government prescribes. Such superior officer may give instructions to the in-charge of Police Station, as he thinks fit, and transmit the same to the Magistrate, without delay.
Power of police to require the attendance of witnesses u/s 160: Code of Criminal Procedure empowers the Police Officer to require attendance of witnesses before himself of any person within the limits of his Police Station, who appears to be acquainted with the circumstances of the case. The order must be in writing. The Police Officer under this law has not been authorized to require the attendance of an accused person with a view to his answering the charge. A person who fails to comply with order of the police may be prosecuted for disobedience u/s 174 of Pakistan Penal Code.
Examination of witnesses by police u/s 161: Statement recorded u/s 161 does not require to sign by the maker of the statement. Statements recorded u/s 161 are not substantive piece of evidence. These statements cannot be used for the purpose of corroboration. But accused can use them in order to maintain discrepancies in its recording. According to the ruling of High Court statement recorded u/s 161 is not evidence, legal, or substantive. It is not even admissible against its maker nor can furnish a base for trial or conviction. But it can be used for contradicting the statement of a witness and test the degree of its authenticity and for no other purpose. Such statement cannot be used to corroborate or explain any part of prosecution evidence. Finding of guilt recorded on the basis of statement cannot be accepted as correct. Omission of a fact from such statement does not amount to contradiction. Statement of witness recorded in Court on oath has to be given preference over a statement u/s 161. Police can make recommendation to release accused, but cancellation of First Information Report is not subject of police.
Where there are two sets of accused in a single First Information Report, they both shall be tried separately. Where two First Information Reports are got recorded, it is well and good but where there is single First Information Report, they shall be tried separately.
Power to record statements and confessions u/s 164: There are two types of confession, i.e., judicial confession and extra judicial confessions.
Judicial confession: Confession recorded in compliance with provisions of Ss. 164 and 364, Code of Criminal Procedure becomes judicial confession to which law attaches great sanctity being free from duress (coercion) and undue influence. Judicial confession, which is self-exculpatory, cannot be used against other person. Trial Court also can record confession which extra judicial confession at any stage.
No person can be convicted solely on only confession. When father kills but son makes confession is not acceptable under law. There is no pressure in such a situation, but it is untrue. High Court and Supreme Court do not take it into consideration.
Following formalities have to be observed by the Magistrate before recording judicial confession:
1. When any accused discloses his intention to record a confessional statement, the first act of the Magistrate is to remove the handcuffs of the accused if he is in handcuff.
2. The police officials present inside the Courtroom are to be immediately turned out from the Courtroom.
3. The Magistrate has to explain to the accused that he is appearing before a Magistrate.
4. That the accused is not bound to make any confession and if he makes any confession it may be used against him and he may be convicted on its strength.
5. The Magistrate has to ask the accused if police had used any coercive method to obtain a confession from him.
6. The Magistrate is required to give sufficient time to such accused to ponder over the matter.
7. Thereafter the Magistrate has to again ask the accused whether he is still willing to make a confession and on his reply in the affirmative he may record the confession.
8. Thereafter the Magistrate has to remand the accused to judicial custody if he is in handcuff.
9. Even after recording the confessional statement of the accused the Magistrate is required to record some prosecution evidence in corroboration of the confession.
10. It is also mandatory that the Court should record a statement of the accused u/s 342 of Code of Criminal Procedure wherein he may be asked the question whether he had made confession voluntarily or whether he had made the same under coercion or duress.
11. When the accused had refused to plead guilty at the time of framing the charge and he wants to make a confession thereafter, conviction should not be based on the sole confessional statement of the accused but some corroborated prosecution evidence must be recorded.
12. Can be used against maker of it.
13. Can be made in the presence of Magistrate.
14. Reading over to its maker.
15. Certification of Magistrate.
17. Name, date, and designation.
Confession itself is not defined either in Code of Criminal Procedure, Pakistan Penal Code, and Qanun-e-Shahadat. It is taken into ordinary legal language. Accused is not handed over to police after he makes confessional statement according to the provisions of law. Accused is sent to jail. If accused is not sent to jail, all proceedings become null and void.
Although the law of conviction on confession is there and Courts are at liberty to do so, but on the other hand it is unanimous decision of superior Courts that no one shall be convicted solely on confession. In certain cases, confession may be recorded without putting any force or coercion, but the statement passes is not true. Where father commits murder but his son comes to Magistrate admitting the alleged murder. In such a case, there is not external pressure on son and all the formalities are fulfilled to record the statement of accused, but the statement recorded is not true, therefore, conviction solely on confession becomes injustice. Confession requires corroboration from any independent source before conviction.
In a case of Muhammad Amin v State, a young lady Miss Sughran of six years came to call on her relatives. In a morning, she went out to play but did not come back till long. During tracing out her, her dead body was found. Muhammad Amin was alleged accused. He confessed being murderer. Death sentence was given to him. In appeal to High Court his punishment was upheld. But Supreme Court set aside punishment being without corroboration.
Retraction of confession: Retracted confession, whether judicial or extra judicial, can legally be taken into consideration against the maker of those confessions and if the confessions are found to be true and voluntary, then there is no need at all to look for further corroboration, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. It is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone.
A retracted confession is admissible in evidence provided it is determined to have been made voluntarily and freely and is fully corroborated by authentic evidence as regards factum (an act or deed) of crime and accused’s connection with the said crime.
As the accused may at any time of trial make confession, may retract at any time before the final judgement. Where a confession is made before a common man, but he was Magistrate, may be retracted.
Admission and confession: When a person kills a person and admits whether he has committed such offence is confession. But where he says that I have committed such offence but it was committed in self-defence is not a confession. Thus confession must be unconditional. Admission does not follow any special procedure as is in the confession cases.
A proper procedure is provided under law to record confession. It may either be made before Magistrate of competent jurisdiction or before police where recovery is made upon on his statement.
Although it is not legal, but the word “admission” is used generally in civil cases and confession in criminal cases.
Extra judicial confession: Extra judicial confession is the weakest type of evidence and normally cannot be made basis for conviction unless coming from unimpeachable source and being corroborated by independent evidence. Great care is to be taken in placing reliance upon this piece of evidence, which requires the three-fold proof. Firstly, it is made, secondly, it is voluntarily made, and thirdly it is true.
Where prescribed formalities, which aid in ascertainment of voluntariness of confession are not available in respect of extra judicial confession, such confession had necessarily not to be given that much of weight which is accorded to judicial confession. Extra judicial confession is admissible in evidence and if material on record could lead to conclusion that it had been made voluntarily and is true, its probative value would be the same as that of one recorded u/s 164, as a matter of caution and prudence, would require special material evidence which connected accused to the crime apart from such confession.
Quashment of FIR u/s 561 – A: Law gives inherent powers to High Court where express law is not available. Judiciary should not interfere with the police in matters, which are within their domain and into which the law imposes upon them the duty of enquiry. Functions of the judiciary and the police are complementary not overlapping and the combination of individual liberty with a due observance of law and order is only to be obtained by leaving each to exercise its own function. Functions of the Court begin when a charge is preferred before it and not until then.
However FIR can be quashed by High Court in its writ jurisdiction when its registration appears to be misuse of process of law. Only High Court can quash FIR at any stage of trial. Where investigations have been completed u/s 173, police or Magistrate cannot cancel FIR u/s 173(3). Although the word of cancellation has not used, but where report says 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.
Rozenamcha (î‡¿BÃkËi): It is document in which each and every movement of the police station is entered. If Station Housing Officer leaves the Police Station, policemen come back from patrol, any information of non-cognizable offence is entered in Rozenamcha. In fact every movement of policemen is endorsed in this document. Where this document remains unfilled and during the checking it is discovered, it is taken seriously and the person liable is warned. Casual treatment with it leads to strict action.
Machlqa (î¸¼‡¿) is also termed security or personal or bail bond. Person charged is liable to provide it for the grant of bail.
Whenever cognizable crime is committed, it is put into First Information Report. Public is not required to cater information to police. People are not required to report each and every incident to police if it is cognizable. Investigation cannot convict. It is mere source of collection of evidence, which may convict accused, but it is duty of Court. Police Officer cannot convict accused. He is just required to collect evidences, which are to be produced in Court. Investigation is conducted at the cost of government. If the case is registered and challan is submitted and person who made information is not satisfied with the investigation agencies may withdraw. Police may have join hand with accused. Arrest of innocent person provides ground for the acquittal of the persons actually involved in crime. Person who is unsatisfied with investigation may put writ petition then prosecution shall be based on petition and not on challan. Investigation shall be put into gutter. Court cannot take action if the case is not within its jurisdiction even offence is cognizable. Competency of Court is important while institution of case.
Inquiry, investigation, and trial are all sources of collection of evidence against the crime committed. It may either be for or against prosecution. It is mere try to reach to truth thus conclusion. It explores the reality of the report registered in Police Station. Judicial inquiry is another method of inquiry but its copy can neither be demanded nor provided. Parties are not entitled of copy of investigation. Hamood-ur-Rehman Commission Report is good instance of inquiry, which is concealed so far from public. As far as investigation is concerned, several agencies such as police, FIA, crimes branch, intelligence, or FBI may be involved.
Trial is also collection of evidence. Copy of evidence is provided to accused prior seven days from its finality. It also can be demanded. It helps in defence. Surprise cannot be given to accused.
High Court: It is constitutional Court with inherent powers and authority of jurisdiction. Suo motu is another power of High Court. It is just an eye on agencies. It is also Court of revision, original jurisdiction, appellate, and record. It is Court of original jurisdiction in certain cases where high personality is involved. It has power to give each and every sentence. No limitations are imposed on it except under law. Sentence of Session Court is not executed until High Court confirms it. U/s 374 of the Code of Criminal Procedure sentence of death is submitted to High Court for its confirmation. High Court can reverse acquittal. All appeals are made to High Court.
Supreme Court works under constitution. No appeal lie in Supreme Court unless leave is granted by Supreme Court and mostly leaves are not granted. High Court sometimes acts as Court of original jurisdiction. Judgement of High Court attains finality if Supreme Court rejects appeal. Supreme Court does not grant leave in normal circumstances unless question of law is involved. S. 435 grants supervisory powers to High Court and Session Court to call and examine record from respective lower Courts. It leaves good gesture on the part of judiciary and enhances efficiency of the judiciary of lower rank.
Original jurisdiction: Highest appellate Court of original jurisdiction. In certain cases High Court has original jurisdiction where high-class personality is involved, i.e., Bhutto case. Request must be moved for trial to be taken in High Court.
Constitutional jurisdiction: It has five constitutional jurisdictions such as, mandamus, prohibition, habeas corpus, quo warranto, and certiorari etc.
Power to dispense with personal appearance: Case can be tried in the absence of accused. Justice cannot be delayed as it denies the justice. Courts have power to exempt any accused to appear personally if sufficient cause is shown in case. His pleader may appear in his place. This power is provided u/s 116, 205, and 540 – A of the Code of Criminal Procedure. If the complainant does not appear before Court at the date of hearing, it is assumed that he is no more interested in litigation and case is dismissed. This rule also has some exceptions. He may be met with an accident. He may be admitted in hospital.
Superintendence of subordinate Courts: High Court has supervisory and controlling authority to all over the subordinate Courts.
Use of inherent powers: High Court can grant bail in non-bail-able offences in exercising of inherent power u/s 561 – A and not u/s 497. Where some relief is due but not available under any procedural law there inherent power of Court comes into action and provides remedy. Following are the inherent powers:
1. Correction of error:
2. Correction of its own error:
3. Enhancement of punishment:
4. Suspension of sentence:
5. Reduction of sentence:
6. Deletion of remarks:
7. Delivery of compensation amount: Police cannot stop the cheque prepared for the compensation granted to widow.
8. Decision on subsequent by same Judge:
Whether bail is right: S. 496 prescribes procedure for bail in bail-able offences. Grant of bail in bail-able offence is a right while in non-bail-able offences, it is not a right but concession.
Bail in non-bail-able offence u/s 497: Following are the cases under which bail can be granted even they are non-bail-able offences:
1. Where case of death penalty is pending since two years:
2. Where case of ten years’ imprisonment is pending since two years:
3. Where offender of death is under sixteen years’ of age:
4. Where offender of death is woman:
5. Where offender of death is sick:
6. Where offender of death is infirm:
7. One year’s pendency where offence is not punishable with death:
8. Doubt on non-bail-able offences:
a) Before judgement:
b) After judgement:
Grounds of bail: Following are the circumstances under which Court can grant bail:
1. As a right in bail-able offences:
6. Long proceedings:
7. Petty offences:
8. Bail-able offences:
9. Innocence of accused:
10. Fair trial:
11. Delay in lodging First Information Report:
12. Delay in trial:
13. Diyat cases:
14. Compound-able offences:
Conditions of bail: Following are the conditions on which bail is granted:
4. Remaining peaceful:
Concurrent sentence: It is punishment, which runs alongwith other punishments. If an offender is awarded punishment for five years and in other offence he is awarded four years sentence, both sentences shall be end after five years on the base of concurrence.
Consecutive sentence: It is punishment, which runs after completion of another punishment. If an offender is awarded five punishments in one offence and two years in another offence, it shall complete upon seven years.
Classes of criminal Courts: There are two classes of criminal Courts under Code of Criminal Procedure namely:
1. Courts of Sessions.
2. Courts of Magistrates.
There are following the classes of Magistrates:
1. Judicial Magistrates:
a) Magistrate of the first class.
b) Magistrate of the second class.
c) Magistrate of the third class.
d) Special judicial Magistrate.
2. Executive Magistrates:
a) District Magistrate.
b) Additional District Magistrate.
c) Sub-Divisional Magistrate.
d) Special Executive Magistrate.
e) Magistrate of the First Class.
f) Magistrate of the Second Class.
g) Magistrate of the Third Class.
This is not the entire hierarchy
of the criminal Courts. There are other criminal Courts constituted under
different law applicable in
Authority of Magistrates: There are certain classes of Magistrates with different powers such as:
Classes of Magistrates
Magistrate of First Class
Imprisonment upto three years including solitary confinement as authorized by law.
Fine upto rupees fifteen thousand.
Magistrate of First Class with powers of Section 30 of Code of Criminal Procedure
Powers to try all the offences not punishable with death.
Imprisonment more than seven years.
Magistrate of Second Class
Imprisonment upto one year including solitary confinement as authorized by law.
Fine upto rupees five thousand.
Magistrate of Third Class
Imprisonment upto one month.
Fine upto rupees fifty.
Where any punishment which does not meet the end of justice shall be transferred to Session Judge for further trial.
Assistant Session Judge: He may pass any sentence. He can pass imprisonment upto seven years. He cannot pass death penalty.
High Court: High Court may pass any sentence authorized by law.
Arrest: It is a curtailment of freedom of movement. It also means submission to law by words. To arrest a person is to deprive him of his liberty by some lawful authority, for the purpose of compelling his appearance to answer a criminal charge, or as a method of execution. Handcuff is no more necessary.
No woman can be kept in Police Station particularly in evening unless where arrangement of lady Police Station is made.
Where offender runs away, no
unnecessary power can be used to stop or arrest him. Reasonable force can be
used. Where infliction of stick is sufficient, fire cannot be used. Territorial
jurisdiction of police extends to any corner of
S. 59 of Code of Criminal Procedure gives powers to private person to arrest any person against whom they have suspect that he has committed offence, which comes under non-bail-able offences, and is cognizable. He must be handed over to police as soon as possible or should be transferred to nearest Police Station. Person arrested must be produced/taken before Magistrate within 24 hours.
Maximum detention: Police cannot keep accused with him beyond twenty-four hours u/s 61. If the retention of accused is required for more than twenty-four hours, only Magistrate is authorized person to allow such extension u/s 167.
Remand is not granted ordinarily in all cases except where is hardened criminal and there is reasonable belief that sufficient time is required to reach on conclusion.
Physical remand cannot go beyond fourteen days in any case; thus a policeman can keep the accused with him for maximum fifteen days including first twenty-four hours. Where police has obtained fourteen days’ remand and nothing is kept on record, which shows the guilt of accused, more remand neither can be demanded nor it can be granted. If demanded then can be refused on the grounds of progress of the case.
If a person spends his life beyond his ostensible sources of income can be arrested to verify his income sources.
If a accused commits different crimes in a time only one case shall be registered against him and all his acts shall come under one crime and not under different crimes.
Every investigation must be completed within reasonable time and due to non-appearance of witnesses it cannot be allowed to extend unreasonably. Non-appearance of witnesses is liable to pay compensation to accused party because their delay is extension of the accused behind the bars.
Process: Person who is wanted at law is required to produce before the authority so required. Way to produce person before such authority is called process.
Issue of process u/s 204: This section authorizes to Magistrate to issue process to an accused, where he takes cognizance on a private complaint or on a police report or any information or knowledge other than a complaint or police report. Where a Magistrate does not dismiss the complaint under the preceding section but forms opinion as to existence of sufficient ground or proceeding, he has to commence proceedings against the accused by compelling his attendance before the Court.
Unless the Magistrate “takes cognizance” as specified in S. 190, a process cannot be issued under this section. Court u/s 204 of Code of Criminal Procedure can issue process to the accused, on being satisfied about the existence of sufficient ground for proceeding against him.
According to the provisions of S. 204 of Code of Criminal Procedure as in vogue (custom, trend, practice) in India, summons are issued for attendance of the person accused in a summons case, while in a warrant case, Magistrate may issue a warrant. It is also provided in subsection (2) that no process shall be issued unless a list of prosecution witnesses is filed. A copy of the complaint shall accompany every summons or warrants. The real purport (meaning, design, gist) of such provision is to give the accused person at earliest opportunity a fair idea of the allegations and the persons who are likely to support those allegations. Such like amendment is necessary in the code for public good and in the interest of justice.
Kinds of processes: Processes are four in number, i.e., summons, warrants, proclamations, and attachments of land.
1. Summons: It is a written order for appearance in Court. It is a most simplest and common way to produce the person required at law before authority. Court issues such orders under the seal and signature. Summon follows the date, time, and place of appearance. This notice is served to the person wanted at last known address. Summons are sent in duplicate one of which is given to required person and second one used as acknowledgement. It becomes proof of service of summon.
All possible effort or due diligence effort is made to service the notice. Summon contains full particulars of the wanted person. Summon is served to the person wanted during the time when he is ordinarily available at the address last known.
In case his non-availability at the address known, summon is served to the male adult member of the family. Summon is not served to females either mother, wife, daughter, sister, or otherwise.
In the absence of any male adult family member, it is pasted at any conspicuous or prominent place where it can come into his knowledge so that object of the summons may be fulfilled. If mere its affixation may frustrate of law, then second page of the summon may be get signed by any neighbour as a proof that notice has been served. Paste of the summons is the ir-rebut-able presumptions that notice has been served. When summon is reached to the requisite place, it is presumed that it has been served. Acknowledgement of the actual person is not necessary. Any person can sign summon on his behalf.
2. Warrants u/s 90: Warrants are of two kinds, i.e., bail-able and non bail-able. It is wisdom of Court to issue warrant either bail-able or non bail-able. Warrants are issued when service of summon becomes insufficient.
In either case warrants server has to contact accused. In case of bail-able warrants he has to give him opportunity to obtain bail. In other case he has to arrest the accused. In any circumstances warrants server has to obtain bail or arrest the accused.
In case where person so required
S. 90 is important because Court not only may issue summon or warrant but in the same time, in certain cases, may issue both summon and warrant. Where Court is satisfied that summon shall not serve the purpose or it shall remain insufficient, Court may issue warrant in lieu of or in addition of summons.
S. 204 of Code of Criminal Procedure is related with issue of process. Court shall decide upon cognizance whether summon or warrant is to be issued to produce person before Court.
3. Proclamation for person absconding (escape, run away, depart secretly or suddenly) u/s. 87: Where summons and warrants could not serve the purpose and required person (not accused) remains concealed or avoiding to appear in Court and Court is satisfied that there is sufficient reason to take necessary steps, may issue written proclamation requiring him to appear before Court. Following are the requirements of the proclamation:
(1) Failure in compliance of warrant: A warrant should have been legally issued against a person. Where the warrant issued by a Magistrate is without jurisdiction or does not fulfil the requirements of law, the issuance of proclamation shall be illegal.
(2) Concealment of absconder: The Court is satisfied and there is reason to believe that absconder is concealing himself to appear before Court where he is desired. There should be sufficient evidence that required person (not accused) has failed to comply with the requirement of law. Where warrant fails there proclamation is issued.
(4) Affixation at home: It can also be affixed at his home place or homestead where he resides ordinarily. Place where it is affixed should be conspicuous.
(5) Affixation at Courthouse: It is also affixed in a Court where he is required at conspicuous place.
(6) Announcement in mosque: Despite beating of drum, announcement in mosque with permission of Imam is most effective thing in the locality of the desired person.
(7) Contents of the proclamation: It must state the exact date, time, and place where person has to appear. A proclamation, which omits to mention the time within which and the place at which the absconder should present himself to save the sale of his property, is a nullity.
(8) Time limitation: Time limit for appearance in Court is thirty days after the issuance of proclamation.
4. Attachment of property – punishment of disobedience u/s 88: Law permits Court to attach the property eventually in the non-compliance of the proclamation. This is punishment to the required defaulter. S. 88 permits Court to attach property of required person either it is moveable or immovable. This action can be taken without awaiting the completion of time for his appearance. Court may take this action soon after passing the order for proclamation. As soon as order for proclamation is passed, Court may attach property. S. 87 should be read with S. 88. Both are correlative. Action u/s 88 can be taken only after the action taking u/s 87. If the action u/s 87 is not taken, action cannot be taken u/s 88. S. 87 must be invoked before coming to S. 88; otherwise action taken u/s 88 shall become null and void. Attachment of property put greater pressure, which results in appearance in Court.
It should be noted that part of the jointly owner cannot be attached. Any joint claimant may claim from government upto the extent of his part in attached property within six months. Government shall release his portion.
Whatever action government wants to take should be reasonable and also should not be taken hasty (quick, speedy). When Court issues order u/s 87 can take action u/s 88 without any delay.
If Court has been passed orders u/s 88 and property has been attached and after attachment person wanted dies, order of the Court comes to an end. Court cannot retain property of the deceased person. Legal heirs may come to Court to get their claim. This property will devolve to them. Right of inheritance cannot be denied.
The above actions are merely the measures to compel the required person to appear before Court where he is required. These actions are not objective but subjective. Wanted person can get back his attached property provided he appears before Court within stipulated time period.
5. Production within 24 hours:
6. Production after fourteen days:
7. By arrest:
8. By jail police:
Manner of attachment: Property either moveable or immovable can be attached in the following manner:
(1) Seizure: His property can be seized physically.
(2) Appointment of receiver: Receiver is a person who receives the rents and profits from the property attached. Court may appoint receiver to compel the person to appear before Court.
(3) Prohibition of conveyance: Court may prohibit the delivery of property to proclaimed person. Person so required cannot sell or alienate property before its release from Court.
(4) Collective action: Court may take any former action separately or jointly. It is upto the discretion of the Court whether single action shall fulfill the purpose.
(5) Possession: Court may order for the taking of possession of the property.
(6) Disposal of perishables: Foodstuff cannot be stored longer. This Court may dispose of the property, which is perishable in nature immediately.
5. Restoration of property u/s 89: If the required person appears before Court voluntarily or apprehended and produced before Court where it is required and fulfills the requirement of the proclamation, his property kept with government either full or partly is released to him. Proceedings of sold portion of the property are also released to him after making necessary deductions incurred for the keeping and sale of property. Intact part of the unsold property is released (returned, reconvened, given back) alongwith the proceedings of sale of the part of the property. Time limit for the action u/s 89 is two years.
6. Power to take bond for appearance u/s 91: There is no need to issue summons or warrant to compel person for appearance before Court if he is already present in Court. Court may require to him to execute a bond as a measure of security. This bond may be executed with or without sureties. This measure ensures his due appearance in Court at time of requirement. Presence of the person in Court should not be taken lightly. It depends upon the gravity of the offence whether what action Court has to take to ensure his presence. In anyway Court has not to act in haste.
Production of document or other thing u/s 94: If any document or thing is required to be produced for desirable investigation can be either summoned or ordered. To issue summons is the discretion of the Court, which is absolute. Action under this section taken by the Court is called summon whereas action of in-charge of Police Station is called order. Notable thing is that person from whom documents are to be produced is only person and not accused. If a person is under treatment in hospital and evidence is required, medical report of medical officer shall be summoned or ordered.
The Court is empowered to exercise the powers to summons the documents at the instance of the accused even before he enters on his defence. Word “person” covers accused person also and search warrant can be issued to him. Indian Supreme Court does not include accused in person.
This is not unlimited power granted to investigation agency. This power is confined upto the extent of necessity or material requirement. In the absence of sufficient cause, section 94 shall not be applicable. In the case of forged document, report can be called from handwriting or fingerprints expert.
As far as banking accounts are concerned, neither Court nor in-charge of Police Station can call accounts. Only High Court and Session Judge are the competent authorities in certain cases to grant permission to produce banking accounts.
Physical presence of person may or may not be necessary. Merely production of document may serve the purpose of investigation. Summons or orders include the place and time for the production of documents.
Production of postal documents u/s 95: Where any postal like document is required to facilitate or investigate or try the case, can be called upon. Documents in demand must be relevant document.
Only competent authorities can demand the documents, i.e., District Magistrate, High Court, Court of Session, District Superintendent of Police, or any other Magistrate. S. 94 should be read and interpreted along-with S. 95. Postal authorities are protected under law. If any document, thing, or parcel is in the custody of postal authorities and is required for inspection of investigation then only competent authority may summon or order to produce such thing for the purpose specified. The words “document, thing, or parcel” also cover a postal or money order.
These are the modes of compelling the person or department for the production of certain documents required in proceeding of different cases.
Search warrant u/s 96: Court may also issue search warrant to inspect the documents. When such warrants are issued? Only when Court comes to conclusion that such documents shall not be produced u/s 94 and 95. Court orders to go and locate the required documents. Now any Magistrate instead of District Magistrate can enjoy authority according to new amendment. It is general inspection or search and Court cannot specify the particular house, room, or document. This provision can be used:
1. Where an inquiry, trial, or proceeding are already going on; and
2. Where the Court after applying its mind objectively, comes to a conclusion that such an intrusion (violation) is necessary for the purposes of such inquiry, trial, or proceeding, it may order to that direction.
The power to issue search warrant being a drastic one is not to be lightly used and an unjustifiable or arbitrary use of it may lead to serious consequences causing loss of prestige or business to individuals and firms. Hence searches made in pursuance of warrants issued u/s 96 cannot be challenged as illegal on the ground of violation of fundamental rights under the Constitution. Following are circumstances to issue search warrant:
1. Non-compliance of warrant:
2. Where document is not known to Court:
3. For the purpose of trial:
4. For the purpose of inquiry:
5. For the purpose of proceedings:
6. Suspect house:
8. Deposit of forged goods:
9. Manufacturing of forged documents:
10. Manufacturing of false seals:
11. Counterfeiting stamps:
12. Counterfeiting bank notes:
13. Obscene material:
How the search warrants are issued:
2. High Court:
3. Application of mind:
4. Examination of police:
5. Respect of woman:
Exception: There is an exception to this rule. Warrants cannot be issued to search document, parcel or other thing to Postal or Telegraph authorities. This provision has been omitted by Ordinance XXXVI of 2001.
Power to restrict warrant u/s 97: Court may restrict warrant through certain provision put into the warrant such as, where warrant is issued to search place, does not mean the warrant to search entire locality. It is specified in the warrant as to which house is to be searched. Court may also specify the person authorized to make search. Order under this is issued when Court is sure that any particular house is subject of search. Order in suspect cannot be issued. Search on the request of Customs Authorities is not covered under this section.
Search of suspected house u/s 98: Where Court comes to conclusion that a particular house or place is used for the forgery or storage of stolen property such as concealment of stolen property or such property is dumped or naked pictures are kept like movies, Court may issue warrant to inspect that house.
Only officer above the rank of constable is authorized to inspect the house suspected. Under this section following are the grounds to order the search:
1. Deposit of stolen property: The place in question is being used for the deposit or sale of stolen property.
2. Deposit or sale or manufacturing of forged documents: The place is used for the deposit or sale or manufacture of forged documents, false seals or counterfeit stamps including bank notes, currency notes or coins or instruments or materials for counterfeiting coins stamps, bank notes or currency notes.
3. Deposit of forgery material: Where any material which is used for the commission of forgery of documents, false seals, counterfeit stamps, bank notes, currency notes, coins, instruments is kept or deposited in any place.
4. Deposit of obscene material: Where place is being used for deposit or sale or manufacturing of obscene material which is prohibited u/s 292 of Pakistan Penal Code.
5. Non-production of document:
6. Where document is not known to Court:
7. For the purpose of trial:
8. For the purpose of inquiry:
9. For the purpose of proceedings:
11. Deposit of forged document:
12. Manufacturing of forged document:
13. Manufacturing of false seals:
14. Counterfeiting of stamps:
15. Counterfeiting of bank notes and coins:
Action of police: Police Officer above the rank of constable can take following actions:
1. Act as specified: He can search the same in manner specified in the warrant. He cannot go beyond whatever has been provided in warrant.
2. Taking possession: He can take possession of any property, documents, seals, stamps, bank notes, currency notes, or coins etc. therein found which he reasonably suspects to be stolen or unlawfully obtained.
3. Conveyance of property: He can convey such property, documents, seals etc before a Magistrate or to guard the same on the spot until the offender is taken before a Magistrate.
4. Production of person before Court: He can take into custody and carry before a Magistrate every person found in such place who has been privy to the deposit, sale, or manufacture such property.
Guidelines for Magistrates in granting permission to search: Before obtaining search warrant the Magistrate is under a bounden (strict) duty to apply his mind to allow permission or to refuse it. He should at least examine the Police Officer making the request and if possible put him questions to satisfy his mind. There should be some semblance (appearance, exterior) of an inquiry to be made by the Magistrate before permission is accorded to search the house of an individual, were it to be searched the house to find out if the premises are being used as a brothel house or to recover stolen property or narcotics or illegal arms.
Whatever the purpose of search is, the Magistrate should always keep in mind that the search conducted should be strictly in accordance with the provisions of the Code specially when womenfolk reside in the premises. Search always is visitation on the rights of privacy of the owner or possessor of the house and, therefore, he should be reticent (silent, keeping quit) in granting permission to search the house in a mechanical manner without application of mind. Law has conferred powers on the Magistrate and these powers have only to be exercised carefully being very wary (alert, careful) of the powers of the Police Officer. These may not be exercised to satiate (fill, stuff) personal vendetta (enmity) or when information is provided by a spy keeping in mind that such information is always motivated by lust for money, which has been refused, and out of ill-will personal score has to be settled. Where permission to search was accorded as if the search warrants were for illegal confinement, the same having been issued u/s 100 of Code of Criminal Procedure. If this was the state of absent mindedness of a Magistrate who has been invested with so many powers under the Code of Criminal Procedure, the police official definitely will get encouraged to indulge in activities which are aimed to secure their own motivated desires. Sections 98 and 165 of Code of Criminal Procedure have no application whatsoever to a search made before any inquiry, investigation, trial, or before recording of First Information Report.
Entry to the dwelling house without permission: Without getting permission of the occupant or without a search warrant no stranger including a Police Officer can enter the house of any person. Otherwise if such stranger or Police Officer is confined in the house or is belabored (criticized, abuse) or injured by the inmates of the house in such circumstances, they would not be committing any offence being justified in the matter.
Who may make the search: S. 98 specifically provides that a warrant can be issued only to the Police Officer above the rank of a constable and it is only such officer that can conduct the search. However such a warrant can be endorsed over to any other Police Officer of the same rank for execution.
Charge of theft: Police Officer investigating into a charge of theft is entitled u/s 165 to search without a warrant, and such a search will not be illegal.
Power of Magistrate: Articles ceased as a result of the warrant should be brought into Court and a Magistrate who issues a warrant is entitled to see that his warrant is not abused and has been properly executed. The Magistrate is competent to amend the warrant dispensing with the production of the goods or document before him. A search under this section made without a search warrant is illegal.
Disposal of things found in search beyond jurisdiction u/s 99: S. 99 relates to disposal of things found in search at a place beyond the local limits of the jurisdiction of the Court, which issued the warrant. Things found in such a search should be taken before the Court alongwith the list unless the place of search is nearer to the Magistrate having jurisdiction than to such Court, in which case the things so found are taken before the Magistrate immediately enabling him to make an order to take them to the Court issuing warrant.
Search for persons wrongfully confined u/s 100: Magistrate of the first class or Sub-Divisional class is empowered to issue search warrant to search for a person whom he believes to be in wrongful confinement. Such person if recovered to be immediately taken before Magistrate for passing proper order. The enacting part of this section lists a condition precedent to the effect that before issuing a search warrant, it is necessary for the Magistrate to have sufficient material before him to make him believe that a person was in confinement and that the circumstances leading to such confinement constituted as offence. The words, “reasons to believe” have been introduced by the legislature with a positive object that it was always believed that the Magistrate possessed with reasons to believe, would always exercise discretion in a judicial fashion. The concluding part of this section lays down that a person if found shall immediately be taken to a Magistrate who shall make such order as in the circumstances of the case, seem proper.
1. Territorial jurisdiction: A Magistrate can issue a search warrant only under this section when the search is to be made within the local limit of his jurisdiction. Where the minor for whom the search warrant was issued was living with grand parents in district A, Magistrate at B issued search warrant, the order of the Magistrate is vitiated because of lack of territorial jurisdiction.
2. Issuance of search warrant by judicial Magistrate: Proceedings under S. 100 of Code of Criminal Procedure can be taken only by the Magistrate of first class and not by the Judicial Magistrate whose primary and sole function is to decide the criminal cases including criminal offences. Issuance of search warrant by Judicial Magistrate would amount simply to transgress (violate a law or right) his authority.
3. Magistrate not disqualified from taking cognizance: Magistrate recording statement u/s 100 is not disqualified from taking cognizance of the offence involved.
4. Neglect to execute search warrant: Willful neglect to execute a search warrant issued u/s 100 amounts to contempt of Court.
Security for keeping the peace on conviction u/s 106: If a person is convicted on offence punishable at law can be asked to provide bond or security with or without sureties to ensure public tranquility and to avoid disturbance. Breach of peace cannot be tolerated at any cost. Chapter VIII of both Pakistan Penal Code and Code of Criminal Procedure are the same on topic.
Ss. 106 and 107 of the Code of Criminal Procedure are counterparts of the same policy. S. 106 applying when by reason of the conviction of a person, his past conduct leads to an apprehension for the future and S. 107 applying when, where the Magistrate on information of opinion that unless prevented, a person is likely to act to the detriment of public peace and public tranquility.
Bond given by a person for keeping peace or to be of good behavior is exempt from payment of Court fee except bond given by surety. Security is not necessary from both sides. Who commits offence or is likely to commit offence is liable to provide security of good behaviour.
Security for keeping the peace in other cases u/s 107: Where no offence yet is committed but likely to commit offence, Court can demand security of good behaviour. Bond is taken to ensure public peace. Disturbance of peace is disallowed. Law watches the people who commits or likely to commit offence and prevents them in doing such thing which may cause disturbance. Before offence is committed, preventive measures are taken to avoid ill thing. Prevention is better than of cure. He may either be arrested & detained or execution of bond is required. The bare possibility of breach of the peace is not enough to justify proceeding u/s 107 or Code of Criminal Procedure. There must be at least a reasonable probability of such breach. Action u/s 107 of Code of Criminal Procedure cannot be taken merely on the ground that a person has cast a slur (insult) on the character and activity of another person and has been carrying on a campaign of vilification (defamation) against him.
Security is merely satisfaction of Magistrate of the particular locality. Security is not demanded from both side but from the side from where offence is likely to commit. Person who is innocent is free to prove his future conduct non-destructive. Government institution like WAPDA, WASA, or LDA etc. cannot execute security. Disturbance in connection with Land Acquisition Act is not covered under this section. Only person on wrong side is liable and not who abide by the law requirements.
Security for good behaviour from persons disseminating (broadcast, propagate, distribute) seditious matter u/s 108: U/s 108 proceedings can be taken against a person who commits or is about to commit an offence punishable u/s 123-A or u/s 124-A or in the matter of publication, u/s 153-A Pakistan Penal Code or criminal intimidation or defamation of a Judge. The object of enabling the Magistrate to take security for good behaviour is for the prevention and not for the punishment of offences. Any person who either orally or in writing or in any other manner intentionally disseminate (broadcast or spread) or attempts to disseminate or in any wise abets the dissemination of any seditious matter falling within the ambit of section given above or is accused of criminal intimidation or defamation of a Judge, the Magistrate on being satisfied and having formed his opinion that there are sufficient ground, requiring such person to show cause as to why he should not be ordered to execute a bond with or without sureties for his good behaviour for one year may proceed under this section.
Security for good behaviour from vagrants (wandering) and suspected persons u/s 109: The second class in which security for good behaviour can be demanded is that of suspects, i.e., person taking precautions with a view to committing an offence or person who has no ostensible means of subsistence or who cannot give a satisfactory account of himself. It is the anticipatory jurisdiction, which the Magistrate exercises under this section. It must be shown that the person proceeded against had taken some active steps to conceal his presence in a certain place or done something to show that he did not wish to be known that he was present at the place and that such steps are taken with a view to commit a cognizable offence. Mere concealment would not amount to concealment of presence within the meaning of this section, unless it is to commit a cognizable offence.
Report of investigation by subordinate Police Officer u/s 168: This section provides that when any subordinate Police Officer to whom the case was assigned has made any investigation, he shall report the result of such investigation to the officer in-charge of the Police Station. Such reports are not public documents and consequently an accused person is not entitled, before trial, to have copies of such reports.
Release of accused when evidence is deficient u/s 169: If during investigation it reveals to In-charge of Police Station or investigating officer that there is no sufficient ground or evidence to charge accused, police may release the accused on the execution of bond with or without sureties.
This section empowers the officer in-charge Police Station or the Investigating Officer to release an accused in his custody on executing bond with or without sureties if he finds no sufficient evidence or reasonable ground or suspicion to justify forwarding challan.
The idea underlying the provisions of S. 169 of Code of Criminal Procedure is that in case of insufficiency of evidence the police, i.e., the Station Housing Officer or the Investigating Officer, may release a person for the time being and a bail bond is taken for the reason that an accused may appear before the Magistrate whenever required particularly at the time when a report u/s 173 of Code of Criminal Procedure (challan) is submitted before a Magistrate competent to take cognizance.
S. 169 postulates (assume, suppose, presume) that during the course of investigation if it transpires (happen, take place, arise) to the in-charge of Police Station that the evidence collected was deficient, the in-charge officer could release the accused.
Report of Police Officer u/s 173: This section enjoins (commands, directs, orders) that every investigation shall be completed without unnecessary delay and as soon as completed, the officer in-charge of the Police Station shall forward to a Magistrate empowered to take cognizance of the offence on a police report, a report in the form prescribed setting forth the name 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 own bond.
The final report under this section is to be sent in the form prescribed by the State Government. Where the accused is sent up for trial, the form of the report sometimes is called the charge sheet. The report sent when the accused is not set up is called the “final report” or “referred charge sheet”.
Interim report: In case investigation is not completed within 14 days from the date of recording of First Information Report, officer in-charge of Police Station is mandatory required to submit in interim challan within 3 days of expiration of such period of 14 days.
Incomplete challan: If the investigation is incomplete and an interim report is submitted, the trial Court shall commence the trial on the basis of such interim report, unless, for reason to be recorded, the Court decide that the trial should not so commence. It means that under law it is permissible for the Court to commence trial on the basis of the material placed before it in shape of an interim report or to keep the report pending till the submission of final report about the investigation.
Delay: Although an accused is not to be benefited of lapse for good reason, but delay beyond 14 days amounts violation of the specific provision, resulting subsequent detention unlawful and violative of Articles 9 and 10 of the Constitution of Pakistan entitling the accused to be released on bail.
Submission of final report: Submission of final report by the Investigation Officer is mandatory. It is only after submission of report u/s 173 that Magistrate can order cancellation of a case or refuse to do so, as he thinks fit. Failure by Investigating Officer to submit final report u/s 173 would amount to misconduct liable to action under law. Whatever course Investigating Officer adopts, i.e., whether he acts u/s 169 or u/s 170 of Code of Criminal Procedure, it is incumbent upon (responsible to perform duty) him to submit a “final report” u/s 173 of Code of Criminal Procedure with regard to result of his investigation to a competent Magistrate.
Procedure when investigation cannot be completed in twenty-four hours u/s 167: Wrong confinement without any remand, order, and without registration of any case by Law Enforcing Agency for the police is unwarranted by law, and abuse of the process of Court. Action taking by police after taking the custody in arresting the alleged accused persons afresh and thereafter lodging fresh reports against them on hearsay evidence is noting but a colorful exercise of power an retaining their custody amounting of their wrongful confinement under a legal cover specifically when the various reports lodged against the alleged accused persons by the Police Officers appeared to be a managed affair under a preplanned scheme.
Diary of proceedings in investigation u/s 172: Law had made a mandatory provision for an investigation officer to enter day to day proceedings of the investigation in a special 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. Such special diary may be used at the trial or inquiry not as evidence in the case but to aid the Court in such inquiry or trial.
Object of maintaining diary: The object of recording “case diaries” under this law is to enable Courts to check the method of investigation by the police. Diary kept under this section cannot be used evidence of any date, fact of statements contained therein but it can be used for the purpose of assisting the Court in the enquiry or trial by enabling it to discover means for further elucidation (explanation, clarification) of points which need clearing up before justice can be done.
Refresh of memory: Object of S. 172 or Code of Criminal Procedure is to enable Court to direct Police Officer who is giving his evidence to refresh his memory from notes made by him in the course of his investigation of case or to question him as to contradiction which may appear between statements so recorded an evidence he was giving in Court. Court may also use diary in course of trial for purpose of clearing up obscurities (unclearness) in evidence or brining out relevant facts which Court thought are material in interest of fair trial.
Police to inquire on suicide, etc. u/s 174: Ss. 174 to 176 of Code of Criminal Procedure deals with inquests or inquiries into sudden violent or unnatural death. S. 174 relates to inquire and report on suicide, etc. In such cases the officer in-charge of the Police Station or some other Police Officer specially empowered by the Provincial Government, on receive of information that a person:
1. Has committed suicide, or
2. Has been killed by another, or by an animal, or by machinery, or by an accident, or
3. Has died under circumstances raising a reasonable suspicion that some other person has committed an offence,
is required to 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 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 to the body, and stating in what manner, or by what weapon or instrument, if any, such marks appear to have been inflicted.
Inquiry officer: Only the Magistrate of first class is empowered to hold such inquests (judicial inquiry, examination, or investigative research). The word “inquest” has not been defined in Code of Criminal Procedure. It carries particular significance when a Magistrate conducts the same.
Object of inquest report: Inquest report does only object to ascertain the reasons or cause of death. This is a type of inquiry. This section does not empower anybody to inquire about the alleged person who has killed the person. Inquest is a merely inquiry to find the cause of death.
Power to summon person u/s 175: This section empowers the Police Officer so authorized to hold inquiry u/s 174 to summon the two or more witnesses to ascertain the causes of death. The persons so called should be acquainted to the person died or the circumstances in which the death is caused. They are required to answer all the questions put to them truly. They are not bound by law to answer the questions, which tend to expose them a criminal charge or to penalty or forfeiture.
Where it reveals that the offence so committed was non-cognizable, police shall not be required to produce such witnesses before the Magistrate.
It is indicative that person examined at an inquest is bound to answer truly all questions other than excepted, whereas S. 161 imposes no such obligation to speak the truth. As such a witness speaking falsely under this section commits the offence of intentionally giving false evidence punishable u/s 193 of the Pakistan Penal Code.
Inquiry by Magistrate into cause of death u/s 176: If a person is taken into custody then he is bound to be dealt with strictly accordion to law and is to be punished only when the case is proved against him. Any person does not allow killing of such person while he is in custody and if this is done then it clearly shows that there is no writ of law but law of jungle.
Object of inquiry: Object of inquiry u/s 176 of Code of Criminal Procedure is to check the inquiry being held by the police or allay doubts in the mind of public against a particular individual.
Exhumation of dead body: Magistrate may order to disinter (unearth, expose) the dead body for fresh postmortem. Magistrate acts judiciously.
Time limit for exhumation: District Magistrate is empowered to order disinter dead body for holding inquiry even deceased buried after postmortem examination. No time limit for disinterment is provided, which can be allowed in the interest of justice to ascertain cause of death even after one year.
Ordinary place of inquiry and trial u/s 177: This section lays down general rule regarding the jurisdiction for the competency of a forum to take cognizance of an offence. It provides that every offence is ordinarily to be inquired into and tried by a Court within the local limits of whose jurisdiction it is committed. If an offence is committed in a district, it shall be inquired into and tried by the Court of the same district. Magistrate has no power to try an accused for an offence committed wholly outside the limits of his territorial jurisdiction. Session Judge of the district in whose local limits offence is committed is invested powers to try the case.
There are certain exceptions to the rule that case shall be inquired into and tried by the local limits of the Court in whose jurisdiction offence is committed. They are described as under:
1. Power to order cases to be tried in different sessions divisions u/s 178: As far as general principle is concerned it the same as described earlier that original jurisdiction shall lie to the Court in whose local limit offence is committed. But Provincial Government has power to change the area, spot, or space of trial of the case keeping in view of the interest of justice. This power is subject to the control of High Court. Law gives this power to Provincial Government to avoid any law and order situation. This power ensures the public tranquility (peace, quite, calm).
2. Accused try-able in district, where act is done or where consequence ensues u/s 179: This is second exception to general rule of jurisdiction of Court. If the act is done at one place and its consequences are occurred at another place, both Courts have jurisdiction to inquire and try the offender.
For instance, A has injured B in
For example, A causes injury to B in
It is further explained in another
illustration. For instance, A puts B into fear in
3. Place of trial where act is offence by reason of relation to other offence u/s 180: If the criminal act is committed in relation to other act which itself is offence can be inquired into or tried by a Court either where first it was initiated or where it is committed.
For instance, A abets B in
In another example, A commits theft at
4. Being a thug or belonging to a gang of dacoits, escape from custody, criminal misappropriation, criminal breach of trust, theft, kidnapping, and abduction etc. u/s 181: Any person liable of the above offences is try-able at the place where he is found even he has started the offence at different place.
For instance, A purchases busses on installments but later on he refuses to pay remaining installments is liable of the offence of criminal misappropriation. He can either be tried at the place from where he bought the busses or where he is at present.
In case of theft, offender can be tried either at the place whereto offence of theft was committed or where the stolen property is received.
Kidnapping or abduction has also same treatments as the previous cases have.
5. 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 u/s 182: Where it is uncertain that is to where offence was started, where offence is committed partly in different areas, where offence is continuance, where acts are different in different areas, can be tried at any place where offender is found. Reference can also be made to High Court for determining the place of jurisdiction.
6. Offence committed on a journey u/s 183:
Where within the
7. High Court to decide, in case of doubt, district where inquiry or trial shall take place u/s 185: Where there is doubt regarding the jurisdiction of Court, reference shall be made to High Court for its determination. High Court is final authority to decide the case. Where case is related to another High Court, the matter shall be brought into the notice of other High Court that case has been registered and being tried.
8. Liability for offences committed outside Pakistan u/s 188: Where any Pakistani or servant of Pakistan either Pakistani or not commits offence in Pakistan or outside Pakistan, at ship or aircraft registered in Pakistan and bearing Pakistani flag, shall be tried in Pakistan.
Cognizance of offences by Magistrates u/s 190: The expression “taking cognizance of offence” in its broad and literal sense means taking notice of an offence. It would include intention of initiating judicial proceedings against offender in respect of that offence or taking steps, whether there is any basis for initiating judicial proceedings or for other purposes. It is conscious application of mind by the Court to facts stated in report by police, which amounts to taking cognizance of offence.
Competency to take cognizance requires both that the Magistrate should be one of those mentioned in this section and should also be competent to inquire into or try the offence u/s 177. Magistrate not taking cognizance in the first instances no bar against cognizance taken subsequent to his previous refusal. Where police had not submitted an complete/incomplete challan for many months without a reasonable cause, and the Magistrate had been remanding the accused at the police request in a mechanical manner, neither cognizance of the case u/s 190(1)(b) of Code of Criminal Procedure, taken by the Magistrate nor he could legally remand the case the accused to custody u/s 344(1) of Code of Criminal Procedure. If a Magistrate not empowered by law takes cognizance of an offence under subsection (1), clause (a) or (b), erroneously but in good faith, his proceedings shall not be set aside merely on the ground of his not being so empowered. But if said Magistrate takes cognizance of an offence under clause (c) without a complaint, his proceedings shall be void u/s 530(k) of Code of Criminal Procedure infra (behind, afterward, following, next).
Transfer of case upon application of accused u/s 191: This section applies where Magistrate takes cognizance at his own motion. This also provides that if a Magistrate takes cognizance of an offence upon his own information or suspect, and if, before evidence is taken, the accused objects to being tried by such Magistrate, he may send the case to the Sessions Judge for transfer to another Magistrate. The provision is based on a well-known maxim that no person can be a Judge of his own cause.
This section is meant to repel
(oppose, resist) impression with the accused person that he was being tried by
a Magistrate or Court who had already made up his mind against him and summoned
him to face the trial by holding that a prima facie case was made out
Transfer of cases u/s 192: This section provides that Sessions Judge may empower any Judicial Magistrate who has taken cognizance of any case to transfer such case for trial to any other Judicial Magistrate in his District, and such Magistrate may dispose of the case accordingly.
Cognizance of offences by Courts of Session u/s 193: This section imposes an embargo upon a Court of Session to take cognizance of any offence unless accused had been sent to said Court of Session by a Magistrate duly empowered in that behalf.
Enquiry report conducted by Magistrate is not binding on the Sessions Judge and Sessions Judge could take any view as could be deemed fit and proper in accordance with law.
Prosecution of offences against state u/s 196: Following is the procedure to prosecute the offences against state:
1. Permission of government:
2. No permission in certain offences:
3. Sanction must set out facts:
4. Sanction must be signed on behalf of government:
5. Proof of sanction:
6. Magistrate can take cognizance: In following cases sanction of the government is not required to proceed the case:
a) Upon receiving a complaint:
b) Upon police report:
c) Upon information recorded from his own knowledge:
Examination of private complaint u/s 200: There are two parallel systems to bring the offender before Court, i.e., First Information Report and private complaint. U/s 154 police is legally bound to register First Information Report on complaint. But in the cases where police is reluctant or hesitates to register First Information Report, aggrieved party may go to Court to file private complaint before Magistrate u/s 200. Contents of private complaint made before Magistrate have not weight less than First Information Report. There are so many examples according to which people are even hanged upon private complaints where police had refused to register First Information Report.
It is mandatory requirements of law, that complainant should be examined on very date complaint is presented to the Magistrate and he takes cognizance of matter. Putting off examination of complaint is violative of the provisions. The object is to protect the public against false, frivolous or vexatious, complaints filed in criminal Courts. Magistrates ought not to lightly accept written complaints and proceed to issue processes unless they have thoroughly sifted (strain, screen, filter, grade) the allegations made against the accused and are satisfied that a prima facie case has been made out against those who are accused of criminal offences.
Oath: Magistrate is bound to reduce the complaint into writing if it is oral or even than it is in writing. Oath is taken even complaint is made in writing.
Signature: Signature of the complainant is taken when complaint is reduced to writing. Also Magistrate has to sign it.
Action: Action is taken on complaint on the same day and Magistrate cannot keep pending the complaint due to and reason.
Non-examination of complaint: Where Sessions Judge has empowered Judicial Magistrate to transfer the case and complaint is made to him, it is not necessary for him to examine the complaint before its transfer to other Magistrate.
Where complaint is made by a Court or public servant acting or purporting to act in the discharge of his official duty is also not liable to examine.
Magistrate shall not examine the complaint where the transferring authority has also been examined the complaint. Reexamining has been prohibited u/s 200(c).
Procedure on complaint cases u/ss 200 to 201:
1. Cognizance of competent Magistrate: s
2. Examination of complaint at once: s
3. Examination on oath: s
4. Recording on paper: s
5. Signature of complainant: s
6. Signature of Magistrate: s
7. Transfer where written without examination: s
8. No re-examination where already examined: s
9. Refer to other Magistrate where complaint is oral and he is incompetent: Where complaint is made orally to the Magistrate having no power to take cognizance, he shall direct the aggrieved party to the proper Court.
10. Refer to other Magistrate with endorsement where written: Magistrate having no competency of cognizance shall return the written complaint to its maker for the presentation into proper Court with endorsement.
Procedure by Magistrate not competent to take cognizance of the case u/s 201: If the complaint is made either in writing or oral to Magistrate, who is not competent to take its cognizance, he may take two steps as follows:
Postponement of issue of process u/s 202: Where complaint is made or transferred and such Court wants to ascertain its truth or falsehood may postpone to issue process and may require to inquire before issuing process. This may be made either judicially or by police.
Where a Court makes the complaint and oath has been taken, issue of process shall not be postponed.
Dismissal of complaint u/s 203: Where there is no prima facie offence found under complaint after making inquiry, Magistrate may dismiss the complaint after recording of reasons for so doing.
This dismissal is neither adjudication nor acquittal but merely dismissal in limine. It is satisfaction of Magistrate. Principle of res judicata does not apply in this dismissal. Whenever new facts are discovered, new complaint can be filed or First Information Report can be got registered.
Where First Information Report is got registered against four accused and police declares two of them innocent in inquiry, complaint can also be made against them keeping in view of collusion on the part of police with such persons. First Information Report and private complaint can go together.
Where both First Information Report and private complaints are made together, first preference for discharge has to be given to complaint rather than First Information Report. Decision on complaint should come first and then First Information Report has to be treated. Complaint is not taken in light manner. It is so strong as the First Information Report is. It has parallel footing.
Magistrate may dispense with personal attendance of accused u/s 205: There are certain cases in which accused may not appear personally for inquiry or trial. Law gives authority to Magistrate for the granting exemption to person from personal appearance before Court. Magistrate has to see and get satisfaction before granting such exemption that whether there are sufficient reasons such as old age, young offender, serious ailment, or pardanasheen lady etc. In such case council of the accused or pleader may appear in his place.
This exemption is available only in the case where summons is issued. Where warrants are issued, this dispensation from personal appearance is not available.
High Court while exercising original jurisdiction has power u/s 205 of Code of Criminal Procedure to dispense with personal attendance of a lady accused and allow her Advocate to represent her. Powers meant for Magistrate must be deemed to be available to High Court.
Power to dispense personal appearance is also available under sections 353 and 540 – A alongwith 205 of the Code of Criminal Procedure.
Evidence to be taken in presence of accused u/s 353: Under this section evidence is recorded in the presence of accused unless his personal appearance has been dispensed with under the law. If accused has been exempted from personal appearance then evidence shall be recorded in the presence of pleader or advocate.
Provision for inquiries and trial being held in the absence of accused in certain cases u/s 540 – A: The incapability of appearance may not necessarily be because of either sickness or other such like reasons. The ordinary meaning of incapability is that a person is not capable to do a thing for any reason. A person being employed in foreign country may not be able to appear on each and every date of proceeding and if the Court is satisfied on objective consideration, such a person may be exempted from appearance under this section. Court has not to shut off her eyes before granting such exemption.
Framing of charge: Where attendance of accused is dispensed with u/s 540 – A, the charge can be framed in his absence.
Charge to the state offence u/s 221: Where the offence has been committed and offender has been apprehended, it is duty of the prosecution to inform or intimate the offender under which offence he has been arrested. Framing of charge is intimation or notice to the accused for which he is required at law.
Specific name of offence: Simple information to offender is insufficient. Detailed and comprehensive description is necessary such as time and place of offence etc. or whether it was qatal-i-amd or otherwise.
How stated where offence has not specific name: Where the offence committed has not specific name, detailed description of the offence should be provided so that accused may know the exact nature of the offence for which he is charged. Where registration number is not allocated to car, description of car such as colour, model, name shall provide sufficient information for accused to know the nature of offence. It should not be so elaborative but concise form of information and comprehensive for the knowledge of accused.
Language of charge: Normally charge is framed in English but it can be in Urdu, which is also language of the Court.
Particulars as to time, place, and person u/s 222: Where the accused charged by the criminal breach of trust or dishonest misappropriation of money under sections 403 to 409 of Pakistan Penal Code, each offence is separate offence but total separate amount is not necessary to provide. Total sum of amount, which has been misappropriated, is sufficient.
The provision of this section applies only to offences of criminal breach of trust or dishonest misappropriation of money and does not apply to falsification of accounts. An accused is entitled to know with certainty and accuracy the exact nature of the charge brought against him. Unless he has this knowledge he must be seriously prejudiced in his defence. When the accused is charged with criminal breach of trust or dishonest misappropriation of money, the particular items or exact dates on which the offence was committed needs not be stated. It is not necessary to specify the separate sums which have been embezzled (misappropriate, steal). It is sufficient that sum of the money mentioned in the charges has been misappropriated, even though it may be uncertain what is the exact amount so misappropriated.
S. 222 contains mandatory provision of law that charge shall contain all material particulars as to time, place as well as specific name of the alleged offence, the manner in which the offence is committed and the particulars of the accused so as to afford the accused an opportunity to explain the matter with which he is charged. Court frames the charge to whom case is assigned.
When manner of committing offence must be stated u/s 223: While framing charge it is essential that manner of committing offence must be stated. When the nature of the case is such a that the particulars mentioned u/ss 22 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.
When the particulars, mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter which he is charged, the Magistrate must give in the charge such particulars of the manner in which the alleged offence was committed, as will be sufficient for that purpose.
Where in a case of cheating the charge u/s 420 of Pakistan Penal Code is not indicative of the manner of deception practiced by the accused person, the charge is defective.
In the case of distinct offences not being acts in the same transaction, committed at different places, a separate charge/trial should be held. However, such illegality amounts to irregularity and is curable where accused and sufficient knowledge that they were facing trial for three murders.
Words in charge taken in sense of law under which offence is punishable u/s 224: Words, which are used to describe the offence, are deemed to be used in the sense of law prescribed.
Effects of errors u/s 225: There may be chance of error in charge. If the error causes misled to offender, Court shall regard it. But where error does not mislead the accused, Court shall disregard it.
This section intends to prevent any failure of justice for non-compliance with the matter required to be stated in the charge. The crux of the section is that omission or such error committed while framing charge would not vitiate the trial unless the accused is in fact and it has occasioned a failure of justice.
Errors or omissions committed in stating either offence or particulars required to be stated in charge are not materiel unless accused is in fact misled by them and failure of justice is occasioned.
This section must be read with S. 537. The combined reading of these provisions requires that when any error, omission, or irregularity has occurred in the framing of charge, the only question to consider is whether it has occasioned a failure of justice by prejudicing the accused in his defence.
Court may alter charge u/s 227: This section applies to all Courts and is intended to apply to alterations or additions to the charge during the course of the trial. Once charge is framed, it can only be altered after some material is available on record to justify that charge should have been framed for some other major offence and only then charge can be amended without recording evidence. Any alteration is subject to the information to accused.
The Court has power to add to a charge. The word “alter” includes withdrawal by a Sessions Judge of a charge added by him to the charge on which the commitment has been made. Such alteration or addition shall be made before the pronouncement of judgement and not later on.
The Court may alter or add to the charge at any time before judgement is pronounced or the verdict of the jury is returned. But it must exercise a sound and wise discretion in so doing. If it wishes to strike out any of the charges it should do so before concluding the trial, and should give the accused an opportunity of making such defence as he thinks fit, otherwise the trial is vitiated.
Separate charges for distinct offences u/s 233: Where there are distinct offences even committed by either single or group of accused shall be charged separately. Each offence has its separate status. All offences must be committed during sole transaction. There should not be break in its commission. The framing of a specific and distinct charge in respect of every distinct head of criminal liability constituting an offence, is the foundation for a conviction and sentence therefor. This provision of law is mandatory.
Three offences of same kind within one year may be charged together u/s 234: Under law three murders committed within a span of one year constitute a single offence thus may be tried as single offence. Any other offence of same nature committed by the same accused within one year shall be tried as single offence. Punishment of the all three offences charged should be similar. Where there is different punishments, they shall be framed and tried separately.
A reading of S. 234 of Code of Criminal Procedure shows that combination of only three offences is permissible in one trial. Nevertheless, it does not bar separate trial of the accused for rest for the offences having been committed within a period of one year. The object of these provisions is to avoid harassment and complication likely to occur in evidence by joining large number of facts constituting offences of identical nature.
Provision of one trial is not mandatory. Keeping in view of the convenience of police, accused itself, and Police Station, all offences may be charged and tried separately. Though provision of single trial is there but this provision is not mandatory and they can be tried separately. Compliance of this section is not desirable. It should not be followed. Amalgamation creates great inconvenience. Although it is permissible and there is no illegality if single trial is conducted but even than it is undesirable. Provisions of this section should not be applied blindly.
Where different offence is committed at different place and at different time shall be tried separately and joint trial is prohibited. When the murder of one and murderous (homicidal) assault on another person occurred at different places and at different times although on the same day, the offences cannot be said to have been committed in the course of the “same transaction”.
Trial for more than one offence u/s 235: This is another exception to the rule in S. 233 that there should be a separate trial for every offence charged. The general rule that every offence should be charged separately applies, though there may be one trial for all such offences under the provision of the section.
Where an offence is committed during one transaction, e.g., robbery and injury without causing a break in transaction shall be tried solely. Offence committed must be without break in one transaction.
The real and substantial test for determining whether several offences are connected together so as to form one transaction “depends upon whether they are so related to one another in point of purpose, or as cause and effect, or as principal and subsidiary acts, as to constitute one continuous action”. The following factors are relevant in determining whether or not different acts committed by one or more accused persons were committed in the course of the “same transaction”:
1. The proximity of time,
2. The proximity of place,
3. Whether or not they are related as cause and effects of each other,
4. Whether or not they are related to each other as principal and subsidiary acts,
5. Community (common, cooperative, joint) of purpose, and
6. Continuity (unity) of action.
When it is doubtful what offence has been committed u/s 236: This is enabling section for the offences, which are similar in nature and cannot be separated or perceived. A person can be convicted for the offence for which he is not actually charged. Where there is similarity in acts and accused is charged for one, but evidence comes for the offence against which accused was not charged, can be convicted for such offence also. It requires some sort of similarity. Where there is no similarity, punishment cannot be given in the offence for which accused is not charged. Punishment only can be given in the offence not charged if it has some similarity with the offence against which accused is charged.
Accused charged u/s 302 cannot be punished for the offence of defamation. A separate trial is required to punish him for the offence of defamation. Punishment can be given for both offences where accused is charged for both offences jointly. But where accused is charged for one offence, second offence cannot be amalgamated with that once for which he is charged.
S. 236 provides that where it is doubtful as to which of several offences a person has committed, he may be charged in one trial for all the offences or in the alternative with having committed some of the said offences.
When a person is charged with one offence, he can be convicted of another u/s 237: Where a accused is charged under the offence of theft but during trial it reveals that he is also guilty of receiving of stolen property can be convicted for the offence for which he is not charged, i.e., receiving of stolen property. Not being charged against the cognate (allied in characteristics) offence does not debar Court to punish offender if reveals in evidence that he is also guilty of other offence of same nature.
S. 237 is also exception to the general rule that an accused person cannot be convicted of an offence of which he was not charged, and of which consequently he has had no notice. This section enables the Court to convict a person of an offence, which is disclosed in the evidence and for which he might have been charged under the provisions of S. 236, although he was not charged with it.
S. 236 provides that where it is doubtful as to which of several offences a person has committed, he may be charged in one trial for all the offences or in the alternative with having committed some of the said offences. S. 237 provides that if a person is charged with one offence but it appears from the evidence adduced against him that he had committed a different offence for which he might have been charged, he may be convicted of that offence proved against him although not charged with it. This may be possible into minor offences but not to the major.
When offence proved included in offence charged u/s 238: When an accused is charged against an offence of high gravity but evidence adduced proves minor offence, accused shall be punished for minor offence. But where charge is minor and evidence proves major offence, accused shall not be punished for the offence of higher gravity. A separate charge and trial becomes necessary. Charges u/ss 302 and 304 though are cognate, but if accused is charged u/s 302 but evidence proves commission of offence u/s 304, he shall be punished u/s 304 and not u/s 302. But where accused is charged u/s 304 and evidence has revealed the commission of offence u/s 302, accused shall not be convicted. It needs separate charge and trial for conviction.
1. Where evidence disclosed during trial:
2. Only for minor offence:
3. Should be cognate offence:
4. Not on distinct offence:
5. Where major offence, new charge:
6. This is exemption in general rule, i.e., separate charge for each offence:
What persons may be charged jointly u/s 239: This section is the last exception to S. 233 which lays down the general principle that every offence must be charged and tried separately. This is the only section, which authorizes a joint trial of several persons under circumstances specified in the section except in cases falling under this section, a joint trial of several accused persons renders the trial invalid. In order to attract the provisions of S. 239, the accused persons must have acted in concert (in agreement) to commit an offence. This section cannot possibly apply to a case in which it is being alleged that either one or the other group of accused persons was guilty of murder and not that they all participated in the murder in collaboration with one another. In a joint trial it is very necessary to keep clear separated the evidence against each of the accused.
Elements of charge:
1. State offences:
2. Specific name:
3. Description where no name of offence is:
4. Section to mention:
5. Language either English or Court:
How charge is framed: Charge is framed in the following manner:
1. Particulars of time:
2. Place of offence:
3. Particular of person against whom offence is committed:
4. Gross sum where criminal breach of trust:
5. Particulars of manner of commission of offence:
6. Words in the sense of law:
7. Court may alter charge:
8. New trial on addition of charge:
Separate charge for distinct offences:
1. Separate charge:
2. Separate trial:
3. One charge for three offences in a year:
How trial commences and concludes u/s 241: Trial means examination of case, civil or criminal, by a competent tribunal. Trial is a hearing of a case, civil or criminal before a Judge who has jurisdiction over it according to the law of the land. The trial may be said to commence when the accused is brought or appears before the Magistrate. Where the challan has been submitted and Magistrate has also applied his mind to take cognizance of the case, trial commences. Following procedure is adopted for the purpose:
1. Delivery of statements and documents to the accused u/s 241 - A: Prior to seven days of the commencement of trial, copies of all statements of witnesses shall be provided to accused free of cost. It shall also include the inspection note which investigation officer records on his first visit to the place of occurrence. It is mandatory provision for the commencement of trial. These statements include the statements recorded u/ss 161 and 164 of the Code of Criminal Procedure.
It should be noted that if public interest suffers from the supply of statement recorded u/s 161, it shall not be supplied to the accused.
This procedure is not applicable for the trial where case is of summary nature and punishment does not exceed six months’ imprisonment or some sort of fine.
2. Application of mind: Taking cognizance of the case of application of judicial mind of the Judge in the particular case.
3. Framing of charge u/ss 221 – 223: Under these sections Court frames charge after the completion of inquiry report of police. It contains the offence committed with specific name of offence in the language of Court. It also includes the particular as to time, place, and person involved in such offence. Manner of the offence committed is also part of the framing of charge.
4. Recording of evidence of prosecution u/s 173: Prosecutor may record further evidence under law.
5. Statement of District Attorney/prosecutor: Closure of evidence and production of documents.
6. Examination of accused and its recording u/ss 342 and 364: This statement is based on the questions and answers without taking of oath from the accused.
a) Accused may also produce evidence of his own u/s 340: Accused shall take oath before giving evidence of his own.
b) No cross-examination of accused u/s 340(2): Where accused has taken oath for giving evidence, cross-examination shall not be allowed. He can produce witnesses. They are termed as “DW” means Defence Witnesses. Where prosecution produces witnesses, they are termed as “PW” means Prosecution Witnesses.
7. Arguments u/s 265(G): Prosecution has right to argue first. When the arguments of prosecution completes, then counsel of accused begins his arguments.
a) Where case is forge, acquittal u/s 249(A): Powers of Trial Court under Ss. 249 – A being co-extensive with similar powers of High Court under S. 561 – A of Code of Criminal Procedure, both can be resorted to. The Court without recording of evidence can pass order of acquittal if the peculiar facts of the case justify such order. This section empowers the Magistrate to acquit the accused at any stage of the proceedings after hearing the prosecutor, complainant and accused and for reason to be recorded if he considers the charge to be groundless or there be no probability of accused’s conviction for any offence.
b) Power to remand case u/s 428: This section authorizes the appellate Court, if it thinks that additional evidence is necessary to record its reasons and to take such evidence in the interest of justice. Court either may take evidence itself or may remand the case the recording of additional evidence.
c) Power of Court to acquit at any stage u/s 265(K): In Corpus Juris Secundum Part 1 – A the word acquittal is defined as “discharged, released from a debt, duty, obligation, charge, or suspicion of guilt, or set free or judicially discharged from an accusation”. In Black’s Law Dictionary it is defined as, “the legal and formal certification of the innocence of a person who has been charged with crime; deliverance or setting free a person from a charge of guilt; finding of not guilty. Also, one legally acquitted by a judgement rendered otherwise than in pursuance of a verdict, as where he is discharged by a Magistrate because of the insufficiency of the evidence, or the indictment is dismissed by the Court of non-prosecution. In Encyclopaedia Britannica, it is defined “acknowledgement by the Court of the innocence of the defendant or defendants. Such a judgement may be made by a jury in trial or by a Judge who rules that there is insufficient evidence either for conviction or for further proceedings. An acquittal removes all guilt in law. An acquittal “in fact” occurs when a jury finds the defendant not guilt.”
Procedure of trial in Court of Session u/s 265 onward: Following is the procedure of trial, which is conducted by the Court of Session:
1. Public prosecutor conducts:
2. Supply of statements to accused:
a) First Information Report:
b) Police report:
c) Statements of witnesses:
d) Report of inquiry officer:
3. Framing of charge:
4. Reading over of charge:
5. Whether accused is guilty or he shall defend:
6. Hearing of complaint:
7. Taking evidence:
8. Summoning of witnesses:
10. Filing of written statement of accused:
11. Production of defence evidence:
12. Close of evidence where not evidence of accused:
13. Acquittal or conviction:
14. Corroboration of evidence:
15. Acquittal at any stage where is not prima facie case:
How the evidence is recorded at different forums: Prosecution is responsible in criminal cases to adduce evidence to prove its case. There are certain conditions to record evidence such as:
Presence of accused u/s 353: In criminal cases evidence is recorded in the presence of accused. It objects that accused should know that what are the allegations are alleged against him. Also advocate of the accused should present at the time of recording of evidence. Where presence of accused has been dispensed with, his advocate or counsel must represent him. Exemption of personal appearance does not mean that his representation has also been dispensed with. Dispensation of personal appearance requires representation of advocate. Presence of accused is presumed the presence of accused. This is not departure from the general rule that evidence must be recorded in the presence of accused. Representation fills the space of accused.
Recording of the evidence is null and void where it is recorded without presence of either accused or his representative. Where accused has been exempted from personal appearance, must be represented by his counsel. The High Court as well as the Court of Session has power to dispensed with the attendance of an accused during trial on sufficient ground, i.e., ill health or pardanasheen lady. Section 205, gives powers to Court to dispense with the personal appearance of the accused.
S. 540 – A also enumerates the provision of exemption from personal appearance in criminal cases where sufficient cause exists.
The compliance with the provisions of S. 353 is mandatory. Failure to do so would entail conviction liable to set aside.
Manner of recording evidence u/s 354: Following manner is not applicable in the case of summary trial.
Record of trial of certain cases by first and second class Magistrates u/s 355: The Magistrate is required to take down the evidence of each witness in the language of the Court. However if he is unable to make such memorandum himself, he can cause such memorandum to be made in writing, or from his dictation in open Court. Obviously such memorandum must be signed by the Magistrate and shall form part of the record.
1. Presence of accused: Statement of the witnesses is recorded in the presence of accused.
2. Presence of pleader of accused: Where appearance of the accused has been dispenses with, statement is recorded in the presence of the pleader of the accused.
3. Memorandum of each witness: The Magistrate prepares himself memorandum of each witness himself in his own writing.
4. Written memorandum with own hand: Normally Magistrate or Judge is required to prepare the memorandum of each witness or accused in his own handwriting.
5. Dictation in certain cases: Where Magistrate is unable to prepare memorandum himself, he dictates in open Court to write the memorandum of each accused and witness.
6. Signature: Judge or Magistrate signs the memorandum, which he prepares.
7. In the language of Court: Memorandum is prepared in the language of Court whatever English or Urdu is.
8. English or translation: Where statement so recorded is not in English or in the language of Court, Court shall arrange its translation in English. Evidence is completed when it is fully explained to the accused. Where languages are different as to the language of Court and the language of the accused, interpreter is provided. Interpreter is meant for the knowledge of accused so that he may know whether what is happening against him.
9. Statement in mother language: It is also allowed but after all it is translated in the language of Court.
10. In open Court: Such statements are recorded in open Court.
11. Questions in the form of narration: Question asked from accused and witnesses u/s 356 and 357 are in the form of narration and not in the form of question and answers. Mode of examination of accused is narration.
12. In the form of question and answers: U/s 342 accused and witness is examined in the form of question and answer. Evidence u/s 340(2) is in the form of question and answer
13. Read over to accused: Law binds the Magistrate and Judge to read over the statement so recorded before accused or witness. This section requires that the evidence of a witness when completed should be read over to him in the presence of the accused or his pleader. The evidence should be read after it is completed and not at the end of the day after all the witnesses have been examined. For the purpose of explanation of evidence to witness, language shall be used which he knows where it is other than he does not understand.
14. Correction upon objection of witness: Where any objection is put while reading over it to accused or witness, Magistrate is bound to correct the mistake pointed out.
16. Double record: In criminal cases, the evidence is recorded in double languages, i.e., in English and in vernacular language of the accused and witness. Law enumerates that record of each and every question and answer shall be maintained in two languages, i.e., English and Urdu or other vernacular language. Maintenance of double record in criminal cases is mandatory.
17. Demeanour of witness: Magistrate or Judge is also bound to record behaviour of the witness or accused during the taking of statement. The presiding officer recording evidence of a witness is also supposed to record such remarks, if any, as he thinks material respecting the demeanor of a witness while under examination. The object of this section is to give to the higher forum some aid in estimating the value of the evidence recorded by the lower Court. The demeanor of a witness, which goes to affect the Court in appreciating his evidence, must be noted down at the proper stage during or at the close of examination of the witness. But it is generally unsafe to pronounce an opinion on the credibility of the witness until the whole of his evidence has been taken. The demeanor of the witness under other circumstances ought not to be taken notice of by the Judge.
18. Full record: In criminal cases each and every word of the evidence is reduced into writing except in the cases which are summarily try-able in which only substantial part of the evidence is recorded. Maintenance of the full record in criminal cases is statutory requirement because question of life and death depends upon evidence.
19. Signature of accused: As soon as the statement taken is completed, it is read over to accused and he signs, where he satisfies.
Pronouncement of Judgement u/s 366: The word “judgement” is not defined in Code of Criminal Procedure. It is a word of general import and means only, “judicial determination of decision of a Court”. Judgement means the expression of the opinion of the Judge or Magistrate arrived at after due consideration of the evidence and of the arguments. Judgement means a Judgement of conviction or acquittal. Judgement is pronounced when the trial is over either in favour or against of the accused. The word “judgement” means a decision in a trial, which decides a case finally so far as the Court trying the case is concerned, and terminating in either a conviction or acquittal of the accused. Judgement is not delayed unnecessarily when Court comes at conclusion.
Following are the mode of pronouncement of judgement:
1. Open Court: Judgement is pronounced in open Court. If a Judge dies after writing his judgement but before delivering it in open Court, the judgement is not to be considered as a judgement, but merely as an opinion. No expression of opinion by a Judge becomes a judgement until it is pronounced.
2. At fixed time: Judgement is pronounced at the time fixed which may either be immediately after the termination of the trial or at some subsequent time.
3. Notice to parties: Time fixed is notified either to the parties concerned or their counsels for the delivery of judgement.
4. Written judgment: Judgement cannot be pronounced until it is written. It is one of the prerequisites of the pronouncement of the judgement. Acquittal of accused without writing judgement is illegal. Judgement not written or dictated or signed on the day of pronouncement, not a judgement thus nullity in the eyes of law.
5. Points of judgement: Judgement should contain all the points, which are considered against the accused. The judgement must be full and complete in all respects showing that the Judge has given his attention to every material question of fact or law. Every judgement of a criminal Court must contain a clear statement of the points for determination, the decision thereon, and the reasons for the decision.
6. Reasons of decision: Judge has to include also the reasons in his judgement so as to why he has decided against him.
7. Language of the judgement: Judgement is pronounced in the language of Court or in some other language, which party, or his counsel knows.
8. Only operative part: One operative part of the judgement is pronounced which is gist (essence, core, outcome) of the judgement. Whole judgement is not read out.
9. Presence of accused: Judgement is pronounced during the presence of the accused. He is taken to Court where he is within custody of the law forcing authority. Where accused is neither within custody of the law enforcing agencies nor his presence has been dispensed with, he is brought in Court at the time of pronouncement of judgement by force of police.
10. Dated: Every judgement is dated at the end of judgement. Where judgement is backdated, it vitiates the judgement. In one of the case of Benazir Bhutto, judgement was backdated thus it was objected.
11. Signed: The Judge making and pronouncing the judgement signs it.
12. Signature on each page: Where the Judge does not write judgement himself and it covers more than one pages, Judge signs all the pages.
13. References of
14. Reasons where death penalty is substituted: Where accused is tried under any offence punishable with death penalty and Court sentences him to any punishment other than death, Court has to mention the reasons as to why he is not sentenced with death penalty.
Exception: There are exceptions to this general rule that only operative part is read out rather than the whole judgement.
1. Whole judgement: As far as general rule is concerned, only operative part of the judgement is pronounced but where parties, i.e., accused or prosecution, make request for the whole pronouncement, judgement is pronounced wholly.
2. Absence of the accused: Generally judgement is pronounced during the presence of accused. But where presence of accused has been dispensed with due to reason certain, judgement may be pronounced during his absence. It has further its two exceptions such as:
a) Where punishment is only fine: Presence of accused becomes immaterial where punishment is only imposition of fine although his presence has not been dispensed with. Presence of counsel is necessary.
b) Where accused is acquitted: Presence of accused also is not essential requirement of law where accused is acquitted. Presence of his representative is sufficient to attract the provisions of law.
Sentence of death u/s 368: When the death penalty is pronounced, convict is hanged by neck till his death. He is not removed from the gallows (wooden framework for hanging criminals (iAe îNbM)) until he dies.
Court not to alter judgement u/s 369: Once judgement has been signed and pronounced, it cannot be altered. Only clerical mistake can be corrected without effecting the substantial object of the judgement. As the judgement is signed, it becomes final. It is neither altered nor reviewed. It is final in nature. It can be altered before signing, but as soon as it is signed, the role of Court is over.
The word “judgement” for the purpose of the section means a decision in a trial which decides a case finally so far as the Court trying the case is concerned and terminating in a conviction or acquittal.
Copy of judgement, etc., to be given to accused u/s 371: As soon as the judgement is pronounced and accused is convicted, a copy of judgement is given to convict.
Cost of copy: Copy of judgement is given to convict free of cost. Cost of translation is on account of Court.
Language of judgment: Language of the copy of judgement provided to convict is either English or in the language, which convict or his pleader understands.
Information of appeal: Where Court of Session pronounces death penalty, also shall inform to convict about the period of appeal within which convict can prefer appeal.
Examination of legality u/s 371: High Court can demand the entire record to reach on the truth whether punishment of death awarded is in accordance to the law and justice. This right is also available u/s 435.
Confirmation of death penalty: Session Judge awards death sentence but this sentence requires the confirmation from High Court. Session Judge makes a reference to High Court and sends whole of record for the determination of High Court. Two senior judges of High Court examine the whole case and then determine whether sentence is to be confirmed. Death penalty is not final until High Court confirms it. High Court puts seal to validate the punishment awarded by the Session Judge.
Powers of High Court to confirm sentence given by the Court of Sessions u/s 374 to 379:
1. Sentence of death:
2. Execution after confirmation:
3. Power to direct further inquiry:
4. Additional evidence:
5. Power to dispense appearance:
6. May confirm:
7. May pass other sentence:
8. May annul:
9. New trial:
10. Amendment in charges:
11. May acquit:
12. Signature of two judges:
Power to direct further inquiry to be made or additional evidence to be taken u/s 375: High Court either can accept the punishment given by the Court of Session, or may acquit the accused, or may remand the case to record fresh evidence. This order is passed while reference to High Court.
Power of High Court to confirm sentences or annul conviction u/s 376: Upon reference u/s 374, High Court can exercise following powers:
1. Confirmation: High Court can confirm the punishment given by the Court of Session.
2. Revise: High Court has power to annul the punishment and may revise the punishment.
3. Acquit: High Court also may acquit the accused person.
Procedure in case of difference of opinion u/s 378: Where two or more judges could not conclude the case referred to them or equally divided, case shall be referred to third single Judge whose decision shall be final.
When the case is laid before third Judge on difference of opinion, the whole case is before him, and while there is no doubt that he is bound to give due consideration to the facts that another Judge of the same Court had reached on conclusion in favour of the accused, it cannot be said that he cannot hold otherwise except upon a finding that view is perverse.
Tender of pardon to accomplice u/s 337: High Court and Court of Session has also power u/s 337 of the Code of Criminal Procedure to tender the pardon to accomplice provided he discloses all the material facts in crime. This pardon is tendered where investigation agency could not collect sufficient evidence of the commission of the crime. Failure of such agency urges the demand of tender of pardon to reach the depth of the root causes of the offence.
Manner of granting pardon: Pardon is always granted in writing and mere verbal granting of pardon is not covered under the Code of Criminal Procedure.
Recording of reasons: Authority so granting pardon has to reduce into writing the reason as to why the pardon is being granted. Pardon can be granted to principal accused but one should not shut eyes before exercising authority. Application of judicial mind should be there.
When pardon can be granted: At any stage of the inquiry or trial pardon can be granted whenever prosecution or inquiry officer feels necessary to conclude the inquiry where apparent evidence is not available to convict the offender. It also can be granted while trial in Court of Session or High Court. Pardon cannot be granted at appellate level. It can be granted only at trial level during the course of trial.
Who may grant pardon: Officer in-charge of the prosecution in the District may grant pardon at any stage of the inquiry or trial. Police and Magistrate can also grant pardon. Approver does not sign the contract with prosecution. When he appears in Court as witness, compliance of contract is proved and it is also proved that he has accepted a pardon or pardon is granted to him. Pardon may be granted to principal accused.
Object of pardon: Pardon is granted only in serious crimes. It objects to trace out the offenders. There is a pardon that every crime should be punished. It is better to grant pardon to one accused rather than releasing all the offenders. The object of a pardon is to free the individual from the prospects of any present or future punishment which the law may inflict for the crime he has committed and to blot out the element of guilt which attaches in respect thereof. It is in substance and effect a contract between the State, on one hand, and the person to whom it granted, on the other, and the State can impose conditions, precedent or subsequent, of any nature, which are not illegal, immoral, or impossible of performance.
Appearance as witness: As the pardon is granted to co-accused he is termed as approver. Approver means an accused to whom pardon has been granted. As soon as pardon is granted to him, he becomes the witness of prosecution and appears as witness against other fellow offenders. When he is made approver, he cannot be tried or prosecuted against the crime committed.
So far as his competency as witness is concerned, he is competent witness according to Article 16 of the Qanun-e-Shahadat Order, 1984. It reads as, “a accomplice shall be a competent witness against an accused person except in case of an offence punishable with Hadd, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.”
A rider to this provision is provided by Article 129, which provides that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars. Legally, conviction of an accused in criminal case can be based solely on the evidence of accomplice, but on factual plan corroboration of the testimony of accomplice is required.
It has been held by the Honour-able Supreme Court in Ghulam Qadir and another v. The State that, however, in the course of judicial precedents, a rule of prudence has been evolved under which it is always insisted that there ought to be independent corroboration of an approver’s statement on material points suggesting a link between an accused person and a crime before such a statement could be accepted as a safe foundation for a conviction while further holding that the reason for the rule is obvious as there is always danger of substitution of the guilty be the innocent in such cases.
Conditions on approver when pardon is granted:
1. Who is approver:
2. Who may grant: Only prosecution may grant pardon.
3. Object of pardon:
a) Obtain evidence: s
b) Complete disclosure: s
c) True disclosure: s
d) Whole circumstances shall disclose: s
e) Any condition precedent: It should be lawful.
f) Any condition subsequent: It also must be lawful.
4. Weak evidence:
5. Escape of offender:
Where pardon is not granted: Pardon is not granted to person who is involved in the offences relating to hurt or qatl. Permission of victim or his heirs is obtained. It should be noted that no one can be treated as heir in the life of other person. Approver is given a name of wretched (ÅÍjM ½Î»g .îÄÎÀ· B· çÌÄÎÀ·) person because he is one of the actual culprit.
More than one approvers in a case: Law does not bind authority to make more than one approvers. But it has never been seen so far, but pardon can be granted to more than one culprits in a case.
Forfeiture of pardon u/s 339: Pardon once granted does not mean its eternity. It can be forfeited whenever granting authority feels better the person is concealing the full information required to conclude the case and to reach into the depth of the case. False evidence is also a reason to forfeit his pardon.
Prosecution of approver: Person who has accepted pardon can be tried for the offence in respect of which the pardon was tendered. Where is breach of contract, pardon stands cease to exist. Full disclosure is essential requirement of the grant of pardon, breach of which tends its forfeiture and thus trial. Where stipulation is broken there pardon is taken back. All concessions come to an end at once.
Production of certificate: For prosecution of the approver on the ground that he has forfeited his pardon by refusing to disclose the truth, production of certificate by public prosecutor is a condition precedent for trial. The prosecution has to establish that certain essential facts were within the knowledge of the approver, and that he had willfully concealed such facts.
Joint trial: Law has specifically provided that the person who was tendered pardon and due the reasons certain his pardon has been forfeited, shall not be tried jointly. His trial shall be held separately.
Procedure in trial of guilty approver u/s 339 – A: Law does not permit joint trial of approver alongwith the other associated culprits. He is kept separately.
Recording of plea of approver: Before the trial is commenced and evidence, Court asks to approver whether he has disclosed all the information against which tender of pardon was made to him.
Commencement of trial: Separate trial is started against guilty approver after recording of his plea whether he has complied with all the conditions on which tender of pardon was made. Court does not need to go further when approver pleas whether he has provided all the essential information to prosecution.
Cessation of bail: Right of bail of guilty approver is ceased to exist until the proceeding against him are completed. He is kept within judicial custody until case is concluded. Detention of guilty approver is also in his interest. Accused party may target him. Judicial detention keeps him safe and sound. It also saves him as against any possible harm which opponent party may inflict to him. Accomplice is not treated as a spy. He just supplies information.
Right of person against whom proceedings are instituted to be defended and his competency to be a witness u/s 340: Law provides certain rights to accused person against whom proceedings are started in criminal Court such as:
He is competent witness.
He has right of defense.
Right to conceal previous history as to commission of offence and conviction.
Procedure where accused does not understand proceedings u/s 341: Where accused does not understand the proceedings of the Court due to alien language, Court provides interpreter but where it is impossible, Court continues proceeding and conclusion is sent to High Court for passing of order. Disability of accused by reasons of deaf and dumb is also covered under this section. Court cannot passes sentence until High Court verifies. If Court concludes the proceeding in his acquittal, Court shall acquit him. Where proceedings end in his acquittal, reference shall not be made to High Court. High Court passes orders whichever thinks fit.
Power to examine the accused u/ss 342 & 364: Accused is examined u/s 342 in the form of question and answer at any time during the trial and u/s 364 by the substantive questions are asked. Notable thing is that this examination is made without taking oath.
Power to postpone or adjourn proceedings u/s 344: Under law police has to produce accused before Court. Where Court thinks fit can remand the accused to police for a maximum period of fourteen days. Shutting eyes in mechanical form Court cannot make this remand. Court must apply judicial mind before granting remand. Where Court has taken cognizance, accused is not sent back to police but sent on judicial remand and kept in jail for further investigation. Non compliance with provisions of S. 344 Code of Criminal Procedure makes the detention illegal.
U/s 61 accused cannot be detained more than twenty-four hours. U/s 167 remand can be given for a maximum period of fourteen days. This remand is related to police. S. 364 is also related with examination of accused in the language, which he understands.
Compounding of offences u/s 345: This section merely enumerates the person who may compound the specified offences under the law. It does not require the permission of Court. Parties can exercise the power of compounding the offences without interference of Court. It has list provided in this section. These are extracts from Pakistan Penal Code.
U/s 345(2) list is provided for the offences, which are compounded, with the permission of Court and parties cannot exercise their power without interference of Court. Court should not create any hurdle the granting of permission for compound-ability. Court should only adhere the public interest and nothing otherwise.
Where case is pending in appellate Court, appellate Court shall grant permission for compounding the case.
Procedure of Magistrate in cases, which he cannot dispose of u/s 346: This section is related with the jurisdiction. Where Magistrate cannot ascertain his jurisdiction, he may refer the case with explanation to Court of Session or High Court, whatever the case is, for its determination. Magistrate shall transfer the case about whom superior Court shall advise.
Procedure when, after commencement of trial, Magistrate finds case should be tried by Court of session or High Court u/s 347: Where Magistrate has taken the cognizance of case but before signing the judgement, he finds that he has no jurisdiction to try the case and this case is related to Court of Session or High Court, he shall send case to Court of Session or High Court.
Trial of persons previously convicted of offences against coinage, stamp laws, or property u/s 348: This section related with the offences related with counterfeiting and previous punishment. If the same offence is committed again, Court may inflict bigger dose to prevent the commission of offence.
Procedure when Magistrate cannot pass sentence sufficiently severe u/s 349: Where Magistrate tries a case finds after proceedings that the offender needs larger dose but his jurisdiction to convict is accused is limited, he may refer this case to his superior Magistrate for bigger dose.
Conviction on evidence partly recorded by one presiding officer and partly be another u/s 350: This section applies to a case where the previous Magistrate after having heard and recorded the whole or any part of evidence ceases to exercise jurisdiction therein and is succeeded by another Magistrate. This section does not apply to transfer of case from one Court to another.
Execution of order passed under section 376 – 381: When High Court confirms the death penalty, then case is sent back to Court of Session for its execution. Session Judge leaves no option unless to issue Black Warrant on the prescribed manner. Issuance of Black Warrant puts a convict into gallows. Only Session Judge is competent to issue Black Warrant who has originally tried the case.
Black Warrant specifies the time and place of execution of death penalty. Normally time for execution is fixed before Aazan of morning. This time fixation prevents the possible violence by fellow prisoners. Last meeting with family member is got arranged.
Cessation of execution: Execution of death penalty is stands ceased to exist when heirs of the killed slain tenders pardon or compromise to convict even at the last moment of execution of death penalty. Convict is removed from the gallows alive.
Postponement of capital sentence on pregnant woman u/s 382: Where capital punishment is passed to woman found pregnant, shall be postponed until she delivers the baby.
High Court has powers either to defer the execution of death penalty or commute the death penalty. In case of commutation, punishment is converted into life imprisonment.
Period of detention to be considered while awarding sentence of imprisonment u/s 382 – B: Object of this section is to compensate accused for the delay in conclusion of his trial because of various factors generally not attributable to the accused as the State is forced to provide speedy justice. Period of imprisonment is considered from the time of detention for such offence.
Where one year has been passed in proceeding and Court sentences for five years, then only four years’ sentence shall be left to pass.
Power to suspend or remit sentences u/s 401: Law under this section gives powers to provincial government to reduce the punishment given by Court. Ladies or minors are subjects of the reduction of sentence. Where a person is above 65 years of age is granted reduction in punishment.
President exercises his powers where Supreme Court gives punishment where in provinces governor exercises the same power as against the punishment of the High Court.
Power to commute (exchange, interchange, put in the place of) punishment u/s 402: This section is same as 401 with a difference that provincial government has power to change the sentence without consents of the convict. Following punishments are the subjects of commutation:
2. Imprisonment for life.
3. Rigorous imprisonment expected.
4. Simple imprisonment.
Remission or commutation of certain sentences, not to be without consents u/s 402 – C: Except in the case under sections 402, 402 – A, and 402 – B, punishment cannot be suspended, remitted, or commuted without the consents of the victim or heirs, whatsoever the case is.
1. With consent of convict:
2. With consent of heirs:
3. Without consent of convict:
4. With condition:
5. Without condition:
6. Whole part of sentence:
7. Part of sentence:
8. General order for all:
Persons once convicted or acquitted not to be tried for the same offence u/s 403: This section discusses the rule of double jeopardy (danger, risk, insecurity). It is constitutional guarantee. Person once tired either convicted or acquitted cannot be tired again on the same facts of the case by the same Court. It is also provided under Article 13 of the Constitution of Islamic Republic of Pakistan. It is Fundamental Rights of every person guaranteed under Constitution.
S. 403 is based on the ancient maxim nemo debts bis vexari which means that a person cannot be tried a second time for an offence which is involved in the offence with which he was previously charged. The same principle autrefois acquit (formerly acquitted) and autrofois convict (formerly convicted) is prevailing in the common law. The section is based on the principle of no mans life and liberty shall be twice put in jeopardy for the same offence on the same set of facts.
S. 403 alongwith S. 26 General Clauses Act provides procedural shield. Conviction for the second time on the same facts is not legal. Accused having once been acquitted by a Court of competent jurisdiction and such finding having attained finality, his conviction on the same facts again by the Court is not permissible.
Where person is convicted u/s 379 of Pakistan Penal Code for the offence of theft, cannot be tried again in the same set of facts.
Where case is tried by the Court incompetent to take cognizance is not bar to try the same case by the Court competent.
Exceptions: This general rule of double jeopardy has three exceptions such as:
1. Distinct offence: A person can be convicted again for the offence, which is distinct offence for which person was convicted previously. A person can be tried again for distinct offence for which separate charge is made. For example, where a person causes grievous hurt to a person and tried for that offence, can be tried again where person injured dies subsequently with the direct cause of such injury.
2. Direct consequences: Where later on discovers that the result is the direct consequence of the same offence, person can be tried again. For example, where a person is charged with offence of grievous hurt can be tired later on when person injured dies with direct consequence of such injury.
3. Concealed facts: Where person tired, but the Court did not know some facts of the case, and person convicted or acquitted, can be tried again for the facts so concealed at that time where the facts are discovered later on.
4. Trial by incompetent Court: Where offence is tried by the Court incompetent having no authority to try the case can be tried the same offence again by the Court having jurisdiction. A person can be tried again where first trial was not conducted under the competent Court having jurisdiction. Lapse of time shall be immaterial. This question shall not arise, where Court was competent.
Appeal: According to Osborn’s Dictionary appeal is defined as “any proceeding taken to rectify an erroneous decision of a Court by bringing it before a higher Court.
The word “appeal” as defined in the Oxford dictionary means “to remove a case formally from an inferior to a higher Court” with a view to ascertain whether the judgement is sustainable having been passed by a Court of competent jurisdiction, sentence being awarded according to law and proceedings conducted conforming the provision so provided.
The right of appeal is a matter of procedure. It is a substantial right created by a statute. Appeal is a right created by statute and only exercisable when expressly given. No appeal lies from any judgement or order of the criminal Court except provided by the Code of Civil Procedure or by any other law.
The word “appeal” is not defined in the Code of Criminal Procedure. It is a reference of case of decision to higher authority or Court. It is authenticity of correctness of irregularity committed at lower level. Where any mistake or technical error is committed at original level, it is referred to higher level. It is called appeal. Right of appeal is statutory.
The right of appeal is a matter of procedure. It is a substantial right created by a statute. Appeal is a right created by statute and only exercisable when expressly given. A right of appeal is neither natural nor inherent but to be expressly provided for. The statute also provides forum of appeal.
Cases in which no appeal lies: Although appeal is statutory right of convict, but at the same time there are certain cases for which appeal is not available. These cases can be summarized as under:
1. No appeal lies when accused pleads guilty u/s 412: Where accused is guilty of offence for which he is convicted, appeal shall not lie. Confession excludes from the statutory right of appeal. Where accused is guilty and admits that yes I have committed such offence and Court convicts him on his confession, right of appeal shall be extinguished.
2. No appeal in petty cases u/s 413: Where High Court passes sentence to six months and fine to rupees two hundred only, appeal shall not be preferred. Where Court of Sessions or Magistrate passes sentence not exceeding one month and fine upto rupees fifty, right of appeal shall also not be available.
3. No appeal from summary convictions u/s 414: Where Magistrate tires case summarily and passes sentence of fine only which does not exceed to rupees two hundred, appeal shall not be accepted.
4. Dismissal of complaint u/s 203: Where private complaint lodged u/s 200 is dismissed u/s 203, appeal shall not be entertained.
Exceptions: There are certain exceptions to the rule where no appeal lies generally, such as:
1. Legality and length of sentence u/s 412: Although where sentence is based on confession right of appeal is taken away, but any illegality committed in trial or length of sentence can be appealed.
2. Substantive sentence u/s 413: Although in petty offences right of appeal is not available but where Court passes substantive sentence in default of payment of fine, appeal can be preferred. This is another exception where right of appeal is not available generally.
3. Combined punishment u/s 414: Where Magistrate passes sentence combined with other offences, appeal can be preferred. Where one-month sentence is passed u/s 379, one-month u/s 427, and ten days u/s 447, it comes total sentence two months and ten days, appeal is admitted on aggregate sentence.
4. Special right of appeal in certain cases u/s 415 – A: Although right of appeal is not available in petty offences, but where more than one persons are tried and convicted and their aggregate punishment comes more than one month, right of appeal is not available in normal circumstances. But where one accused is sentenced for one month, he shall have right of appeal. Where one shall have right of appeal, all shall acquire right of appeal. It is only in the case where joint trial is conducted. All the rest convicts shall also get right of appeal where one gets right of appeal after joint trial.
Appeal in the cases of acquittal u/s 417: Under this section only Provincial Government can prefer appeal only to High Court against the orders of acquittal. Public prosecutor files such type of appeal.
Where accused is acquitted, government goes in appeal but on the other hand where accused is convicted, he goes to appeal. Person either natural or legal so defeated goes to appeal.
What is appeal:
What is acquittal:
Who makes such appeal:
Why appeal is preferred:
Procedure on appeal against acquittal: Following is procedure of appeal against the order of acquittal:
1. Government orders to public prosecutor:
2. Appeal within thirty days:
3. Grant of leave by High Court:
4. No appeal where no leave by High Court:
5. Enclosure of judgement with memorandum of appeal:
6. Call of record:
Appeal from acquittal sentence: The provisions of S. 367, Code of Criminal Procedure, is mandatory. There is no distinction in awarding sentence u/s 302, Pakistan Penal Code, in original trial or in appeal from acquittal: the normal sentence is death unless there are extenuating (mitigating, justifying) circumstances.
Principles in dealing with appeal from acquittal are:
1. Presumption of innocence of accused becomes double.
2. Supreme Court would not interfere unless all grounds of acquittal were not supportable from evidence on record.
3. Conclusions reached by courts below were such that no reasonable person could conceivable reach the same.
4. Judgment of acquittal is perverse and the reasons given for it are artificial and ridiculous.
5. Supreme Court interfere in exceptional case on overwhelming (irresistible, awesome) proof resulting in irresistible conclusions and that too, with a view only to avoid grave miscarriage of justice and for no other purpose.
Appeal from sentence of High Court u/s 411 – A: Where High Court hears a case from original side and convicts accused, accused may file an appeal to High Court upon the orders of provincial government.
Supreme Court is the highest Court of appeal. It hears appeals against the decisions of High Court. High Court hears appeal as against Court of Sessions. And Court of Sessions hears appeals from the Courts of Magistrates.
Where Magistrate tries the case of sedition u/s 124 – A of Pakistan Penal Code, appeal is directly made to High Court keeping in view of the importance of matter.
Where Court of Sessions tries
cases of Hudood, appeal is made to
No appeal in certain cases when accused pleads guilty u/s 412: There is no provision of appeal where person guilty is convicted on the grounds of confession before Magistrate. There is only one ground on which he can make an appeal. He can challenge the sentence but upto the extent of the quantum of the sentence. Where evidence is wrongly recorded for conviction, it becomes also ground of appeal.
Where punishment is given in default of payment of fine, no appeal lies.
Power of Appellate Court in disposing of appeal u/s 423: Where appeal is preferred against the acquittal, what High Court can do? High Court can do:
1. Set aside altogether: Where u/s 379 High Court is obliged to confirm or otherwise the death sentence, High Court can set aside the death penalty altogether in the dispensation of justice.
2. Uphold sentence: High Court may confirm the sentence given by the Court of Session.
3. Remand of case: Where any irregularity is observed in trial or recording of evidence or omitting the substantial evidence, case is sent back for retrial.
4. Reduction of quantum of sentence: Where a person has committed offence at first time, and punishment given is manifold, Court of appellate cannot enhance his sentence but can reduce his punishment.
5. Reverse of acquittal:
6. Further inquiry:
Appeal-able orders and judgements u/s 405 onwards: Following are the orders and judgements against which appeal lie:
1. Rejection of application for restoration of property:
2. Order of security of good behaviour:
3. Refusing surety:
4. Sentence of Assistant Session Judge or Judicial Magistrate:
5. Sentence by Court of Session:
6. Sentence by High Court:
7. Against joint conviction:
8. Against acquittal:
9. Order to pay compensation:
10. Order of forfeiture of bond:
11. Disposal of property:
Procedure in case of certain offences affecting the administration of justice: Where offences are committed against public or production of document in false evidence, Court can punish the offender in summary trial. Following punishments can be given:
1. Imprisonment not exceeding three months and/or fine not exceeding to Rs. 1,000/-.
2. Imprisonment not exceeding one month and/or fine not exceeding to Rs. 50/-.
3. Fine not exceeding to Rs. 50/-.
Forwarding of cases for trial by Courts having jurisdiction u/s 476 – A: Only Court before whom such offence is committed gets jurisdiction to try it or higher Court can try it. Supreme Court can try offences where lower Court does not try it. No private complaint lies on Court against such punishment.
S. 476 – A deals with the forwarding of case for trial by Courts having jurisdiction to take cognizance u/s 476 of Code of Criminal Procedure on the fining that the case should not be tried under that section for reason relatable to the facts and circumstances. In that situation after recording the facts constituting the offences and the statement of the accused person the case can be forwarded to another Court having jurisdiction to try the same. The wording of S. 476 – A of Code of Criminal Procedure makes it clear that the Court ordering a prosecution has to come to a definite finding that it is expedient in the interest of justice that an inquiry should be made in respect of the offence alleged to have been committed.
Procedure in certain cases of contempt u/s 480: Where contempt is committed in term of obstruction to enforce punishment, insult of Court, or destroy the material facts, Court shall hear the case same day before time is over. Proceedings on next day are nullity in the eyes of law thus void.
Where offender deserves for bigger dose, bigger does is given to set him right. Reference can be made to competent Court for regular trial for bigger dose. Only contempt u/s 480 is try-able on same day.
Court may take cognizance on same day and can punish the offender with fine not exceeding to Rs. 200/- and in case of default of payment of fine simple imprisonment not exceeding one month.
Power to issue direction of the nature of a Habeas Corpus u/s 491: It means let the person being or produce in Court for examination. It is a summary procedure. Person so detained can be produced in Court through bailiff.
Powers of the superior Court: Law invests certain powers to superior Courts for the end of justice. These are supervisory powers, which prevent the miscarriage of justice. Superior Courts control the lower Courts as to correctness of the proceedings, illegality, and irregularity. They do not interfere in the proceedings of trial Courts generally. High Court or Court of Sessions exercises these powers. These powers are exercised where trial is not conducted in accordance to law. Following directions can be issued:
1. Order to bring detainee:
2. Set at liberty:
3. Prisoner in Court for examination:
4. Bring prisoner for Court martial:
5. Transfer to custody for trial:
6. Cepi corpus: It means, “I have taken the body.” When a writ of capias or attachment is directed to the sheriff for execution, when he has the defendant in custody, he returns the writ with an indorsement stating that he has taken him, called a return of cepi corpus. Where writ of attachment has been executed, body kept is released by the order of High Court.
Exception: These orders are not applicable on the persons who are detained under any provisions meant for preventive detention.
Examination of accused u/s 364 is in the form of questions and answers. Where this procedure is not applied and brought into the knowledge of superior Courts, i.e., High Court or Court of Sessions, they intervene to prevent such irregularity and illegality. Everything which is contrary to law vitiates the trial therefore it is set aside. It does not mean that entire trial is void but partially upto the extent of alleged irregularity or illegality.
S. 439 empower to High Court where S. 439 – A empowers to Court of Sessions to exercise such supervisory powers. Where Court acquits accused in revision no subsequently conviction can be imposed but appellate Court may convict subsequently.
Procedure in case of accused being lunatic u/s 464: Where Magistrate finds that the accused is a person of unsound mind and incapable to defend himself, he can send him to Civil Surgeon to examine his capacity to understand. Where it is proved in medical examination that accused is person of unsound mind and incapable to defend himself, Magistrate shall postpone further proceedings until his recovery.
Person who is incapable to understand proceedings can be sent either to jail or hospital keeping in view of his ailment for proper treatment and custody until he may face trial.
Where trial has been started it will not postpone and in case of acquittal, he shall be released otherwise accused shall be handed over in safe custody.
Release of lunatic pending investigation or trial u/s 466: Custody of lunatic can be given to his near relative or friend to avoid any injury to himself or to any other person. Accused is not allowed to go alone keeping in view of his mental condition.
1. Inquiry whether he is lunatic:
2. Examination by Civil Surgeon:
3. Examination of Civil Surgeon:
4. Release on bail:
5. Postponement proceedings:
6. Properly care in jail where no security is provided:
7. Appearance when required:
8. Safe custody where is no security:
9. Resume inquiry when capable:
10. Continue where he was sane on offence:
11. Acquittal where he was lunatic at offence:
12. Custody to relative or friend:
Irregularities, which do not vitiate trial u/s 529 onward: Following irregularities causes trial not to vitiate. It should be kept in mind that such irregularities committed u/ss 529 and 530 are those under which Magistrates have not authority. They must be summarized as under:
1. Issue of warrant u/s 98:
2. Investigation order u/s 155:
3. Issuance of process u/s 186:
4. Taking cognizance u/s 190:
5. Transfer of case u/s 192:
6. Tender of pardon u/ss 337 and 338:
8. Withdrawal of case and trial self u/s 528:
Irregularities, which vitiate trial u/s 530 onward: Following irregularities causes trial to vitiate. They must be adhered in trial:
1. Trial without jurisdiction:
2. Warrant without jurisdiction:
3. Arrest without jurisdiction:
4. Misleading of accused in framing charge:
5. Alteration in charge without defence to accused:
6. Back dated judgement:
7. Act contrary to law:
8. Deficiency in particulars of warrants and summons:
9. Non-delivery of statements to accused prior trial:
10. Sentence in excess of law:
11. Taking cognizance without warrant in non-cognizable offences:
12. Lack of defence opportunity:
13. Sentence on confession without corroboration:
14. Trial in the absence of accused:
15. Evidence in the absence of accused:
16. Trial without issuing process: s
Power of trial and appellate courts to dispose of property u/ss 516 – A to 525: This is the property against which offence has been committed. This property can be disposed of in this manner:
3. Destruction of intoxication:
5. Delivery to entitled person (purchaser):
6. Restoration to real owner:
7. Delivery to Magistrate as taken by police:
9. Destruction of libelous material:
Competent courts and persons to sworn affidavit u/s 539: Following are the persons and courts before whom affidavit can be sworn:
1. High Court:
2. Officer authorized:
3. Any Commissioner:
4. Any other person appointed:
5. Any Judge:
Who may draw it: Only public servant may draw it.
Who should it contain: It contains all facts.
Why allegation by person during trial: It is used as evidence.
Who is liable: Public servants are required to submit such type of affidavits.
Affidavit evidence: There are only three sections in this Code of Criminal Procedure, i.e., Ss. 74, 526, and 539 – A, according to which a fact may be got proved by affidavit. Affidavits not covered by these sections are not legal evidence not can be admitted in evidence without confronting its maker at trial. Mere filing of such affidavits would not be a sufficient factor to share the veracity of the story put by complaint duly supported by the eyewitnesses. Procedure of swearing on Holy Quran is not applicable in criminal cases. The Sessions Judge or the Magistrates, before whom any criminal proceeding is pending, in which an affidavit is to be filed, would normally have authority to receive evidence in the case. If he has such authority to receive evidence, he has power to administer oath himself to the person concerned or to administer oath through an officer empowered by him in this behalf, by virtue of S. 4 of the Oaths Act, 1873. Since an affidavit is basically a statement on oath, the Sessions Judge or the Magistrate having authority to receive evidence, would obviously have authority t attest as affidavit. Such affidavit being a document could not be legally treated as an affidavit and, therefore, inadmissible in evidence as affidavit. Such document, however, can be put to Oath Commissioner for purpose of proving that witness signed it and to have it exhibited.
Muslim shall be required to repeat the, “I swear by Allah, the Almighty that I will give true evidence; and if I give false evidence, I would thereby invoke wrath and curse of Allah on me.”
Hindu shall be required to repeat the, “I solemnly affirm in the presence of Almighty God that what I shall state shall be the truth, the whole truth and nothing but the truth.”
Grounds to make application for the transfer of cases from one subordinate Court to another u/s 526: Following are the grounds:
1. For fair and impartial trial or inquiry: Where is doubt that trial court may prejudice to accused, application for the transfer of case can be made for fair trial.
2. Difficulty in question of law: Where court below deems difficulty to determine the question of law or deems unable to determine the question of law, may request for the transfer of case.
3. Nearness of the place of offence: Where case is tried at distance as to convenience to accused, case can be transferred to the place near to accused.
4. General convenience of parties and witnesses: Law does not require the suffering of witnesses therefore for their convenience case can be transferred to other place.
5. For the end of justice: Where impartiality or threat to accused is felt, application for the transfer of case can be made.
6. Incompetent to try: Where court feels its incompetence to try the case may request its higher court for the transfer of case.
7. On report of lower Court: Higher court may transfer the case on the application of lower court due the certain reasons.
8. Upon taking cognizance (no one can be Judge of his own cause: Where judge is personally is interested, case must be transferred to other court.
Arrest without offence u/s 149 onward: A Police Officer can arrest any person though he has committed no offence on the following grounds:
1. Preventive detention:
2. Information of design to commit offence:
3. Apprehension of breach of peace:
4. Injury to public property:
6. Life beyond reasonable sources:
7. Suspect of offence:
8. Cognizable offences u/s 154:
9. Habitual robbers u/s 54 & 65:
10. Offences committed before Magistrate:
11. House breaker:
12. Proclaimed offender:
13. Having stolen property:
14. Receiving stolen property:
15. Causing obstruction in public duty:
16. Escaped person:
17. Attempt to escape from lawful custody:
18. Private arrest:
Powers of Magistrate or Police Officer to disperse unlawful assembly u/ss 127 to 131: Following are powers:
1. Command to disperse:
2. Use of civil force:
6. Use of military force:
7. Little force may use:
8. Little force and little injury:
Prosecution of Magistrate or Police Officer Chapter IX u/s 132: Magistrate or Police Officer can be prosecuted acting under Chapter IX of the Code of Criminal Procedure. It requires the permission from Provincial Government. But in certain cases they are protected u/s 132. Following are the exemptions:
1. No prosecution without permission: Prosecution is not allowed unless Provincial Government permits.
2. Good faith: Any Police Officer or Magistrate acting in good faith under Chapter IX cannot be prosecuted in Criminal Court.
3. Any officer: Any officer acting u/s 131 to disperse unlawful assembly is not liable to prosecute in Criminal Court.
4. Any person: Any person who is engaged by the government forces u/ss 128, 130, and 131 – A, cannot be prosecuted.
5. Inferior officer: Neither officer of higher rank nor officer of inferior rank can be prosecuted who have acted in good faith to disperse unlawful assembly.
6. Only superior Court:
Preventive measures of Magistrate regarding the immovable property in dispute u/ss 145 and 146: Following measures can be adopted:
1. Order to parties to attend Court:
2. Written statements of respective claims:
3. Display of summon order at place:
4. Recording of evidences:
5. Attachment until decree:
6. Possession till legally evicted:
7. Making party of legal heirs:
9. Withdrawal of attachment where no breach:
10. Appointment of receiver:
11. Prohibition to interfere in right:
Security for good behaviour u/ss 106 to 110: Under following circumstances security for good behaviour can be demanded:
1. Breach of peace:
2. Abetting assault:
3. Criminal intimidation:
4. Keeping peace:
5. Seditious matters’ publication:
7. Having no ostensible means of subsistence:
8. Habitual offender:
9. Habitual robber:
How the public nuisance is removed u/s 133:
1. What is: It is a deprivation of a general public from the right or enjoyment at large.
a) Unlawful obstruction of way:
b) Trade injurious to health:
c) Construction of any building causes injury:
d) Construction is likely to fall:
f) Confinement of dangerous animals:
2. How can be removed:
a) Upon receiving of police information:
b) Cognizance of Magistrate: Only Magistrate of First Class can take cognizance.
c) Order of Magistrate:
i) Responsible shall remove:
ii) To cease carry such trade:
iii) Removal of goods:
iv) Prevent erection:
v) Repair building: Responsible shall repair the building.
vi) Support tree:
vii) Alter to dispose:
viii) To fence tank:
ix) To destroy or confine dangerous animal: