1. The Criminal Procedure Code, 1898 (Act V of 1898) as amended upto date.

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 reus are the essential elements which constitute crime. Under the
provisions of Constitution any law which is in conflict to Islam is null & void. No law
can be passed which contravene to Islam. Fundamental Rights are also protected under
Constitution. No one can be deprived from his Fundamental Rights of movement.
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.
No Court shall grant bail in serious crimes such as death unless there is reasonable
ground to grant bail. Offences punishment of which is life imprisonment are also
treated in the same manner.
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.
7. Opportunity to the petitioner to prepare his defence.
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.
20. Plea raised by the accused. PLJ 1997 Shariat Court (AJK) 23, Muhammad Sadiq v.
Muhammad Arshad.
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.
8. Dockets.
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.
19. Challan.
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.
16. Signature.
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 accuseds 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 (Bki): 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 () 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:
9. Bail:
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 years 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:
2. Weaker:
3. Woman:
4. Minor:
5. Infirm:
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:
1. Bond:
2. Surety:
3. Appearance:
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 Pakistan such as Drug Courts, Custom
Courts, LDA Courts, Army Courts, Banking Courts etc. Code of Criminal Procedure is
applicable in such types of Courts.
Authority of Magistrates: There are certain classes of Magistrates with different
powers such as:

Classes of Magistrates Authority

Imprisonment upto three years
including solitary confinement as
Magistrate of First Class
authorized by law.
Fine upto rupees fifteen thousand.
Powers to try all the offences not
Magistrate of First Class with
punishable with death.
powers of Section 30 of Code of
Imprisonment more than seven
Criminal Procedure
years.
Imprisonment upto one year
including solitary confinement as
Magistrate of Second Class
authorized by law.
Fine upto rupees five thousand.
Imprisonment upto one month.
Magistrate of Third Class
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 Pakistan when offender
escapes and runs away. When offender is apprehended his things of common use such
as wristwatch, money, vehicle etc. are kept under custody so they cannot be damaged.
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 is leaving Pakistan and date of appearance may
help him in escape, non bail-able warrants can be issued. Purpose of warrant may
not be defeated in any case. Court which has issued bail-able warrants may recall
her decision in changed circumstances and may issue non bail-able warrants for
early production of accused. Where escape is apprehended there service of summon
may frustrate and defeat the requirement of law.
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.
(3) Reading: It must be read out in some conspicuous place of the residence of
the required person. It is a place where he ordinarily resides.
(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.
 (7) Sale of livestock: Livestock is sold earlier to avoid certain expenses, which
may incur on them. Court cannot arrange fodder.
(8) Sale of property: Court may sell attached property after six months
statutory period. Property is released if the desired person is appeared in
Court.
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:
7. Sale of forged documents:
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:
1. Magistrate:
2. High Court:
3. Application of mind:
4. Examination of police:
5. Respect of woman:
6. Privacy:
7. Permission:
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:
10. Sale of forged document:
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 Lahore. Subsequently B goes to Faisalabad and dies
there. Since the B was caused to inflict injury in Lahore and he died
at Faisalabad which was the direct cause of the injury caused by A, the Courts of
both districts, i.e., Lahore and Faisalabad have jurisdiction to inquire or try the
offender either in Lahore or Faisalabad. Direct consequences means that where
 person injured becomes unable to carry on his routine normal life.
Where B recovers, then only Court of Lahore shall get the jurisdiction to inquire and
try the offender. It is further explained in another instance.
For example, A causes injury to B in Lahore. Later on B goes to Faisalabad and lives
there for ten days where he remains unable to carry on his routine normal life and
later on he goes to Rawalpindi and still remains unable for the same as
in Faisalabad. All the Courts either in Lahore, Faisalabad, or Rawalpindi get
jurisdiction to inquire and try the offender. If B recovers at Rawalpindi and carries
on his routine normal life there, then only Courts of Lahore and Faisalabad get the
jurisdiction excluding the Court of Rawalpindi. Normally the Court where the
wrongful act is done gets the jurisdiction.
It is further explained in another illustration. For instance, A puts B into fear
in Lahore. B subsequently goes to Faisalabad. Property of B is taken away
in Faisalabad under direct consequences of threat of A in Lahore. A can be tried
either at Lahore or Faisalabad. Since the delivery of property is direct consequence
therefore the Court at Faisalabad has also jurisdiction to try offender as the Court of
Lahore has jurisdiction.
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 Lahore, under consequences of
which B kills C at Faisalabad. B can either be inquired into or tried by the Court of
Lahore where the abetment was committed or Faisalabad, which is the place of
occurrence of the actual crime.
In another example, A commits theft at Lahore and sells stolen property
at Faisalabad. A can be inquired into or tried either by the Court within whose
jurisdiction property was stolen or the Court within whose jurisdiction property is
received, sold, or retained.
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 territory of Pakistan any offence is committed during journey either at bus, train,
 plane, ship, can be tried at any district within whose jurisdiction offence is
committed.
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 against him. A Court, which takes cognizance of a non-cognizable offence suo
motu, is under a legal obligation to offer the accused a choice of trial before another
Court is required u/s 191 of Code of Criminal Procedure. The accused must be
informed, before any evidence is taken, that he is entitled to have his case tried by
another Court. If he objects to being tried by the Magistrate who has taken cognizance
of the case, the case must be transferred to another Magistrate or be committed to the
Sessions. But the accused is not entitled to claim that a particular Court must try his
claim.
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 accuseds 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 Blacks 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:
9. Opportunity of accused to produce 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.
15. Reading in its language: Statement is not read out blindly in English or other
language, but in his mother language, which he understands.
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 Pakistan Penal Code: Judge has to refer the relevant sections of the
Pakistan Penal Code under which he has adjudged the case against accused, where
accused is punished.
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 NbM)) 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 approvers 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.
a) Prosecution:
b) Magistrate:
c) Police:
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:
6. Actual:
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 (jM g . B ) 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:
1. Death.
2. Imprisonment for life.
3. Rigorous imprisonment expected.
4. Simple imprisonment.
5. Fine.
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 Osborns 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.[1]
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.[2]
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 Federal Sharaiat
Court rather than High Court. Federal Sharaiat Court takes direct cognizance where
Hudood crimes are involved.
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:
7. Retrial:
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:
7. Sale of property u/ss 524 and 525:
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:
1. Sale of perishable items:
2. Sale of explosive to government or authorized agent:
3. Destruction of intoxication:
4. Confiscation:
5. Delivery to entitled person (purchaser):
6. Restoration to real owner:
7. Delivery to Magistrate as taken by police:
8. Sale and payment to innocent person:
9. Destruction of libelous material:
10. Sale of property of unknown person: s
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:
5. Vagabonds:
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:
3. Arrest:
4. Confine:
5. Punishment:
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:
8. Sale of perishables:
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:
6. Vagabonds:
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:
e) Un-fencing:
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:
[1] (DB) PLD 1960 Pesh. 132 State Vs. Inzar Gul.
[2] PLJ 1995 SC 351 Sikandar Hayat Vs. Muhammad Nawaz etc.