THE CODE OF CRIMINAL PROCEDURE, 1898
[ACT V OF 1898] [22nd March, 1898]
An Act to consolidate and amend the law relating to the Criminal Procedure.
WHEREAS it is expedient to consolidate and amend the law relating to Criminal
Procedure; It is hereby enacted as follows:---
PART I
PRELIMINARY
CHAPTER I
1. Short title: Commencement.--- (1) This Act may be called the Code of Criminal
Procedure, 1898.
(2) Extent. It extents to the whole of Pakistan; but in the absence of any
specific provision to the contrary, nothing herein contained shall affect any
special or local law now in force or any special jurisdiction or power
conferred, or any special form of procedure prescribed, by any other law for the
time being in force.
Important Note: Several amendments were made in the Code of Criminal Procedure
through Ordinance No. XXXVII of 2001. Sub section (2) of section of Ord. XXXVII
of 2001 was reading as follows:-
(2) It shall come into force on the 14th day of August 2001.
However, this sub section (2) has been amended for Islamabad Capital territory
as under:-
(2) It shall come into force on the 14th day of August 2001 1[except in
Islamabad Capital territory where it shall come into force on such date as the
Federal Government may, by notification in official Gazette specify.]
[Important Note. This Book incorporates amendments in Cr.P.C. by amending Acts.
Order and Ordinances from 1860 uptodate. Vide their notifications the
Baluchistan Government,3 N.W.F.P. Government4 and Sindh Government5 have
enforced, amendments in Cr.P.C envisaged by items of Schedule to Law Reforms
Ordinance, 1972 has amended by Law Reforms (Amendment) Act, 1976]. Hence, only
such amendments by Law Reforms Legislation (1972-1976 are incorporated in body
of Cr.P.C. which have been notified to be in force.
Provisions of Cr.P.C. applicable to offences to offences under Islamic Law.
Section 27, Prohibition (Enforcement of Hadd) Order, 1979 (P.O. No.4 of 1979),
Section 24, Offences Against Property (Enforcement of Hadood) Ordinance, 1979
(Ord. VI of 1979), and Section 17, Offence of Qazf (Enforcement of Hadd)
Ordinance, 1979 (Ord. VIII of 1979), provide as follows:---
(1) Unless otherwise expressly provided in this Order/Ordinance the provisions
of the Code of Criminal Procedure, 1898 (Act V of 1898) hereinafter referred to
as the said Code, shall apply, mutatis mutandis, in respect of cases under this
Order/Ordinance:
Provided that, if it appears in evidence that the offender has committed a
different offence under any other law, he may, if the Court is competent to try
that offence and to award punishment therefore, be convicted and punished for
that offenceâ€.]
2. [Repeal of enactments, notifications, etc., under repealed Act Pending Cases]
Rep. by the Repealing and Amending Act, 1914 (X of 1914).]
3. Reference to Code of Criminal Procedure and other repealed enactments.--- (1)
In every enactment passed before this Code comes into force in which reference
is made to, or to any, chapter or section of the Code of Criminal Procedure, Act
XXV of 1816 or Act X of 1877, or Act of 1872, or Act X of 1882 or to any other
enactment hereby repealed, such reference shall, so far as may be practicable,
be taken to be made to this Code or to its corresponding chapter or section.
(2) Expression in former Acts. In every enactment passed before this Code comes
into force the expressions “Officer exercising (or ‘having’) the powers (or ‘the
full power’) of a Magistrate, second class,†shall respectively be deemed to
mean “Magistrate of the first classâ€, “Magistrate of the second class†and
Magistrate of the third class,†1[***] and the expression “Joint Sessions Judgeâ€
shall mean “Additional Sessions Judgeâ€.
4. Definitions.--- (1) In this Code the following words and expressions have the
following meanings unless a different intention appears from the subject or
context;---
(a) “Advocate Generalâ€. “Advocate General†includes also a Government Advocate
or, where there is no Advocate General or Government Advocate, such officer as
the Provincial Government may, from time to time, appoint in this behalf;
(b) “Bailable offenceâ€; “Non-bailable offenceâ€. “Bailable offence†means an
offence shown as bailable in the Second Schedule, or which is made bailable by
any other law for the time being in force; and “non-bailable offence†means any
other offence;
(c) “Chargeâ€. “Charge†includes any head of charge when the charge contains more
heads than one;
(d) [Repealed by Repealing & Amending Act, XI of 1923]
(e) [Omitted by Law Reforms Ordinance, 1972]
(f) “Cognizable offenceâ€; “Cognizable caseâ€. “Cognizable offence means an
offence for, and “cognizable case†means a case in, which a police officer, may,
in accordance with the Second Schedule or under any law for the time being in
force, arrest without warrant;
(g) [Repealed by A.O., 1949]
(h) “Complainâ€. “Complaint†means the allegation made orally or in writing to a
Magistrate, with a view to his taking action under this Code, that some person
whether known or unknown, has committed an offence, but it does not include the
report of a police officer.
(i) [Repealed by Act II of 1950].
(j) “High Courtâ€. “High Court†means the highest Court of criminal appeal or
revision for a Province;
(k) “Inquiryâ€. “Inquiry†includes every inquiry other than a trial conducted
under this Code by a Magistrate or Court;
(l) “Investigationâ€. “Investigation†includes all the proceedings under this
Code for the collection of evidence conducted by a police officer or by any
person (other than a Magistrate) who is authorized by a Magistrate in this
behalf;
(m) “Judicial proceedingâ€. “Judicial proceeding†includes any proceeding the
course of which evidence is or may be legally taken on oath;
1(ma) “Magistrate†means a Judicial Magistrate and includes a Special Judicial
Magistrate appointed under sections 12 and 14;â€.
(n) “Non-cognizable offenceâ€; “Non-cognizable caseâ€. “Non- cognizable offenceâ€
means an offence for, and “non-cognizable case†means a case in which a police
officer, may not arrest without warrant;
(o) “Offenceâ€. “Offence†means any act or omission made punishable by any law
for the time being in force; it also includes any act in respect of which a
complaint may be made under section 20 of the Cattle Trespass Act, 1871
(p) “Officer-in-charge of a police station†: “Officer-in-charge of a police
station†includes, when the officer-in-charge of the police station in absent
from the station-home or unable from illness or other course to perform his
duties, the police officer present at the station-house who is next in rank to
such officer and is above the rank of constable or, when the Provincial
Government so directs, any other police officer so present;
(q) “Placeâ€. “Place†includes also a house, building, tent and vessel;
(r) “Pleaderâ€. “Pleaderâ€, used with reference to any proceeding in any Court,
means, a pleader or a mukhtar authorized under any law for the time being in
force to practice in such Court, and includes (1) an advocate, a vakil and an
attorney of a High Court so authorized, and (2) any other person appointed with
the permission of the Court to act in such proceeding;
(s) “Police stationâ€. “Police station†means any post or place declared
generally or specially, by the Provincial Government in this behalf;
(t) “Public Prosecutionâ€. “Public Prosecution†means any person appointed under
section 492, and includes any person acting under the directions of a Public
Prosecution and any person conducting a prosecution on behalf of the State in
any High Court in the exercise of its original criminal jurisdiction:
(u) “Sub-divisionâ€. “sub-division†means a sub-division of a district.
(v) and (w) [Omitted by Law Reforms Ord., 1972].
(2) Words referring to acts: Words to have same meaning as in Pakistan Penal
Code. Words which refer to acts done, extend also to illegal omission; and
all words and expressions used herein and defined in the Pakistan Penal Code,
and not hereinbefore defined, shall be deemed to have the meaning respectively
attributed to them by that Code.
5. Trial of offences under Penal Code. (1) All offences under the Pakistan Penal
Code shall be investigated, inquired into, tried, and otherwise dealt with
according to the provisions hereinafter contained.
(2) Trial of offences against other laws. All offences under any other law shall
be investigated, inquired into, tried, and otherwise dealt with according to the
same provisions, but subject to any enactment for the time being in force
regulating the manner or place of investigating, inquiring into, trying or
otherwise dealing with such offences.
_________
PART II
CONSTITUTION AND POWERS OF CRIMINAL
COURTS AND OFFICES
CHAPTER II
OF THE CONSTITITION OF CRIMINAL COURTS
AND OFFICES
A. --- Classes of Criminal Courts
1[6. Classes of Criminal Courts and Magistrates.--- (1) Besides the High Courts
and the Courts constituted under any law other than this Code for the time being
in force, there shall be two classes of Criminal Courts in Pakistan, namely:---
(i) Courts of Session;
(ii) Courts of Magistrates.
(2) There shall be the following classes of Magistrates, namely:-
1[(i)] Magistrate of the first class
(ii) Magistrate of the second class; and
(iii) Magistrate of the third class.]
B.--- Territorial Divisions
7. Sessions divisions and districts.--- (1) Each Province shall consist of
sessions and every sessions division shall, for the purposes of this Code, be a
district or consist of districts.
(2) Power to alter divisions and districts. The Provincial Government may alter
the limits or the number of such divisions and districts.
(3) Existing divisions and districts maintained till altered. The sessions
divisions and districts existing when this Code comes into force shall be
sessions divisions and districts respectively, unless and until they are so
altered.
8. Power to divide districts into sub-divisions.--- (1) The Provincial
Government may divide any district into sub-divisions, or make any portion of
any such district a sub-division, and may alter the limits of any sub-division.
(2) [Omitted by Ordinance No. XXXVII of 2001]
C. --- Courts and Offices
9. Court of Session.--- (1) The Provincial Government shall establish a Court of
Session for every session division, and appoint a Judge of such Court.
(2) The Provincial Government may, by general or special order in the official
Gazette, direct at what place or places the Court of Session shall hold its
sitting; but until such order is made, the Courts of Session shall hold their
sittings as heretofore.
(3) The Provincial Government may also appoint Additional Sessions Judges and
Assistant Sessions Judges to exercise jurisdiction in one or more such Courts.
(4) A Sessions Judge of one sessions division may be appointed by the Provincial
Government to be also an Additional Sessions Judge of another division, and in
such case he may sit for the disposal of cases at such place or places in either
division as the Provincial Government may direct.
(5) All Courts of Session existing when this Code comes into force shall be
deemed to have been established under this Act.
10. [Omitted by Ordinance No. XXXVII of 2001]
11. [Omitted by Ordinance No. XXXVII of 2001]
12. [Judicial] Magistrate.--- (1) The Provincial Government may appoint many
persons as it thinks fit, 11[x x x x x x x x x x ] to be Magistrates of the
first, second or third class in any district, and [x x x x x x x x x x ] may
form time to time, define local areas within which such persons may exercise all
or any of the powers with which they may respectively be invested under this
Code.
(2) Local limits of their jurisdiction. Except as otherwise provided by such
definition, the jurisdiction and powers of such persons shall extend throughout
such district.
13. [Omitted by Ordinance No. XXXVII of 2001]
14. Special Judicial 1[***] --- (1) The Provincial Government may, on the
recommendation of the High Court, confer upon any person 2[“, including a former
executive Magistrate,â€] all or any of the powers conferred or conferable by or
under this Code on a Judicial Magistrate, or in regard to cases generally in any
local area.
(2) Such Magistrates shall be called Special Judicial Magistrates and shall be
apppointed for such term as the Provincial Government may, in consultation with
the High Court, by general or special order, direct.
(3) [Omitted by Ordinance No. XXXVII of 2001]
(4) [Omitted by Ordinance No. XXXVII of 2001]
(5) [Omitted by Ordinance No. XXXVII of 2001]
15. Benches of Magistrates.--- (1) The Provincial Government may direct any tow
or more [***]1 Magistrates in any place to sit together as a Bench, and may be
order invest such Bench with any of the powers conferred or conferable by or
under this Code in Magistrate of the first, second or third class, and direct it
to exercise such powers in such cases, of such cases only, and within such local
limits, as the Provincial Government thinks fit.
(2) Powers exerciseable by Bench in absence of special direction. Except as
otherwise provided by any order under this section every such Bench shall have
the powers conferred by this Code on a Magistrate of the highest class to which
any one of its members, who is present taking part in the proceedings as a
member of the Bench, belongs, and as for as practicable shall, for the purposes
of this Code, be deemed to be a Magistrate of such class.
16. Power to frame rules for guidance of Benches.--- The Provincial Government
may, 2[***] from time to time, make rules consistent with this Code guidance of
Magistrates’ Benches in any district respecting the following subjects:---
(a) the classes of cases to be tried;
(b) the times and places of sitting;
(c) the constitution of the Bench for conducting trials;
(d) the mode of setting differences of opinion which may arise between the
Magistrates in sessions.
17. Subordination of 1[***] Magistrates and Benches to Sessions Judge.--- (1)
All 2[***] Magistrates appointed under sections 12 and 14, and all Benches
constituted under Section 15, shall be subordinate to the Sessions Judge, and he
may, form time to time, make rules or give special orders consistent with this
Code and any rules framed by the Provincial Government under Section 16, as to
the distribution of business among such Magistrates and Benches.
(2) [Omitted by Ordinance No. XXXVII of 2001]
(2A) [Omitted by Ordinance No. XXXVII of 2001]
(3) Subordinate of Assistant sessions Judge to Sessions Judge.--- All Assistant
Sessions Judges shall be subordinate to the Sessions Judge in whose Court they
exercise jurisdiction, and he may, from time to time, make rules consistent with
this Code as to the distribution of business among such Assistant Session
Judges.
(4) The Sessions Judge may also when the himself is unavoidably absence or
incapable of acting, make provision for the disposal of any urgent application
by Additional or Assistant Sessions Judge and such Judge shall have jurisdiction
to deal with any such application.
(5) 1[Omitted by Ordinance No. XXXVII of 2001]
D. --- Courts of Presidency Magistrates
18 to 21. Appointment of Presidency Magistrate, Benches, Local limits of
jurisdiction, Chief Presidency Magistrate. [Omitted by A.O. 1949].
E. --- Justice of the peace
8]22. Appointment of Justices of the Peace.--- The Provincial Government may be
notification in the official Gazette, appoint for such period as may be
specified in the notification, and subject to such rules as may be made by it
any person who is a citizen of Pakistan and as to whose integrity and
suitability it is satisfied to be a justice of the Peace for a local area to be
specified in the notification and more than one justice of the Peace may be
appointed for the same local area.
22-A. Power of Justices of the Peace.--- (1) A Justice of the Peace for any
local area shall, for the purpose of making an arrest have within such area all
the powers of the Police officer referred to in section 54 and of an
officer-in-charge of a police station referred to in section 55.
(2) A Justice of the Peace making an arrest in exercise of any powers under
sub-section (1) shall, forthwith, take or cause to be taken the person arrested
before the officer-in-charge of he nearest police station and furnish such
officer with a report as to the circumstances of the arrest and such officer
shall thereupon re-arrest the person.
(3) A Justice of the Peace for any local area shall have powers, within such
area, to call upon any member of the police force on duty to aid him.--
(a) in taking or preventing the escape of any person who has participated in the
commission of any cognizable offence or against whom a reasonable complaint has
been made or credible information has been received or a reasonable suspicion
exits of his having so participated; and
(b) in the prevention of crime in general and, in particular, in the prevention
of a breach of the peach or a disturbance of the public tranquility.
(4) Where a member of the police force on duty has been called upon to render
aid under sub-section (3), such call shall be deemed to have been made by a
competent authority.
(5) A Justice of the Peace for any local area may, in accordance with such rules
as may be made by the Provincial Government,---
(a) issue a certificate as to the identity of any person residing within such
area, or
(b) verify and document brought before him by any such person, or
(c) attest any such document required by or under any law for the time being in
force to be attested by a Magistrate,
and until the contrary is proved, any certificate so issued shall be presumed to
be correct and any document so verified shall be deemed to be duly verified, and
any document so attested shall be deemed to have been as fully attested as if he
had been a Magistrate.
22-B Duties of Justice of the Peace.--- Subject to such rules as may be made by
the Provincial Government, every Justice of the Peace for any local area
shall---
(a) on receipt of information of the occurrence of any incident involving a
breach of the peace, or of the commission of any office within such local area,
forthwith make inquiries into the matter and report in writing the result of his
inquiries to the nearest Magistrate and to office-in-charge of the nearest
police station;
(b) if the offence referred to in clause (a) is a cognizable offence, also
prevent the removal of any thing from, or the interference in any way with, the
place of occurrence of the offence;
(c) when so required in writing by a police officer making an investigation
under Chapter XIV in respect of any offences committed within such local
area,---
(i) render all assistance to the police officer in making such an investigation;
(ii) record any statement made under expectation of death by a person in respect
of whom a crime is believed to have been committed.]
23 and 24. Justice of the Peace for the Presidency-towns. Present Justice of the
Peace. [Rep. by the Criminal Law Amendment Act, 1923 (XII of 1923), S. 4.]
25. Ex-officio Justice of the peace.--- In virtue of their respective offices,
the Judge of the High Courts are Justice of the Peace within and for the whole
of Pakistan, Sessions Judges 1[***] are Justices of the Peace within and for the
whole of the territories administered by the Provincial Government under which
they are serving.
Suspensions and removal
26 and 27. Suspension and removal of Judges and Magistrates, Suspension and
removal of Justice of the Peace. [Rep. by A.O. 1937.]
CHAPTER III
POWERS OF COURTS
28. Offences under Penal Code.--- Subject to the other provisions of this Code
any offence under the Pakistan Pena2l Code may be tried:
(a) by the High Court; or
(b) by the Court of Sessions; or
(c) by any other Court by which such offence is shown in the eighth column of
the Second Schedule to be triable.2
3[***]3.
Illustration
A is tried by the Session Court on a charge of culpable homicide. He may be
convicted of voluntarily causing hurt, and offence triable by a Magistrate.
29. Offences under other laws.--- (1) Subject to the other provisions of this
Code, any offence under any other law shall when any Court is mentioned in this
behalf in such law:
(2) When no Court is so mentioned, it may be tried by the High Court or subject
as aforesaid by any Court constituted under this Code by which such offence is
shown in the Eight Column of the Second Schedule to be triable.1
2[***1]
29A. Trial of European British subjects by second and third class Magistrates.
[Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949
(II of 1950)].
29-B. Jurisdiction in the case of juveniles.--- Any offence, other than one
punishable with death or imprisonment for life, committed by any person who at
the date when he appears or is brought before a Court is under the age of
fifteen years, may be tried by any Judicial Magistrate specially empowered by
the Provincial Government to exercise the powers conferred by section 8,
sub-section (1), of the Reformatory Schools Act, 1897, or, in any area in which
the said Act is not applicable, by any other law providing for the custody,
trial or punishment of youthful offenders, by any Magistrate empowered by or
under such law to exercise all of any of the powers conferred thereby.]
130. Offences not punishable with death. Notwithstanding anything contained in
section 28 and 29, the Provincial Government may invest any Magistrate of the
first class with power to try as a Magistrate all offences not punishable with
death.
B. Sentences which may be passed by Courts of various Classes
1a31. Sentences which High Court and Session Judges may pass.--- (1) A High
Court may pass nay sentence authority by law.
(2) A Sessions Judge or Additional Session s Judge may pass any sentence
authorized by law; but any sentence of death passed by any such Judge shall by
subject to confirmation by the High Court.
(3) An Assistant Sessions Judge may pass any sentence authorized by law, except
a sentence of death or of 1[imprisonment for life] or of imprisonment for a term
exceeding seven years.
COMMENTARY
Sentences which High Courts and Sessions Judges may pass. In section 31 of the
Criminal Procedure code, sub-section (1) empowers the High Court to pass any
sentence authorized by law, and sub-section (2) gives similar power to a
Sessions Judge or Additional Sessions Judge adding the condition that any
sentence of death passed by any such Judge shall be subject to confirmation by
the High Court. The wording of these two provisions clearly indicates that there
is a substantial difference between the passing of a sentence and the
confirmation thereof in the eye of framers of the Code, and subsequent
provisions appearing in Chapter XXVII serve only to strengthen this
impression.1b
32. Sentences which 1[Judicial Magistrates] may pass.--- (1) The Courts of
1[Judicial Magistrate] may pass the following sentences namely:---
(a) Courts of Magistrate of the first class: Imprisonment for a term not
exceeding three years including such solitary confinement as is authorised by
law:
Fine not exceeding fifteen thousand rupees; arsh daman;
Whipping:
(b) Courts of Magistrate; Imprisonment for a term not exceeding [one year]
including such solitary confinement as is authorized by law;
Fine not exceeding 3a[five thousand] rupees.
(c) Courts of Magistrates of the third class; Imprisonment for a term not
exceeding one month;
Fine not exceeding 3b[one thousand] rupees.
(2) The Court of any Magistrate may pass any lawful sentences combining any of
the sentences which it is authorized by law to pass.
33. Power of Magistrates to sentence to imprisonment in default of fine. Proviso
as to certain cases.--- (1) The Court of any Magistrate may award such terms of
imprisonment in default of payment of fine as is authorized by law in case of
such default:
Provided that:---
(a) The term is not in excess of the Magistrate’s powers under this Code;
(b) In any case decided by a Magistrate where imprisonment has been awarded as
part of the substantive sentence the period of imprisonment awarded in default
of payment of the fine shall not exceed one-fourth of the period of imprisonment
which such Magistrate is competent to inflict as punishment for the offence
otherwise than as imprisonment in default of payment of the fine.
(2) The imprisonment awarded under this section may be in addition to a
substantive sentence of imprisonment for the maximum term awarded by the
Magistrate under section 32.
34. [Omitted by Ordinance XII of 1972].
Omitted Section is given below:---
34. Higher powers of certain 3a[xxx].--- The Court of a Magistrate specially
empowered under section 30, may pass any sentence authorized by law except a
sentence of death or imprisonment for a term exceeding seven years.
34A. Sentences which Court and Magistrate may pass upon European British
subjects. [Omitted by the Criminal Law (Extinction of Discriminatory Privileges)
Act, 1949 (II of 1950), Sch.]
35. Sentence in cases of conviction of several offences at one trial.--- (1)
When a person is convicted at one trial of two or more offences, the Court may,
subject to the provisions of section 72 of the Pakistan Penal Code, sentence
him, for such offences, to the several punishments prescribed therefor which
such Court is competent to inflict; such punishment when consisting of
imprisonment 4[x x x x x x x x x x x x x x] to commence the one after the
expiration of the other in such order as the Court may direct, unless the Court
directs that such punishments shall run concurrently.
(2) Maximum term of punishment. In the case of consecutive sentences, it shall
not be necessary for the Court, by reason only of the aggregate punishment for
the several offences being in excess of the punishment which it is competent to
inflict on conviction of a single offence, to send the offender for trial before
a higher Court.
Provided as follows:---
(a) In no case shall such person be sentenced to imprisonment for a longer
period than fourteen years;
(b) If the case is tried by a Magistrate 4[x x x x x x x x x] the aggregate
punishment shall not exceed twice the amount of punishment which he is, in the
exercise of his ordinary jurisdiction, competent to inflict.
(3) For the purpose of appeal, the aggregate of consecutive sentences passed
under this section in case of convictions for several offences at one trial
shall be deemed to be a single sentence.
COMMENTARY
In the absence of any evidence to prove that the sole articles were received by
the appellant not at one and the same time but at different times separate
convictions and sentences cannot be legally sustained. In the circumstances of
the case we would treat the separate Courts for receiving stolen property a
single offence although the thefts relating to them may have taken place on
different dates in different places and regarding properties belonging to
different persons.4a
Imprisonment for life. Sentence of. Whether Section 35, Cr.P.C. compels Court
which has sentenced a person to life imprisonment with any other or similar
sentence, to order said sentences to run concurrently. Question of. Like
sentence of death which, when executed, excludes execution of a similar
sentence, serving out of a sentence of life imprisonment, by legal fiction,
would amount to serving out of a sentence for remaining span of normal life of
convict, thus debarring any further execution of any other or similar sentence
awarded in same trial. Held: A sentence of imprisonment for life cannot be
permitted to run consecutively with any other or similar sentence awarded in
same trial.4b
Sections 35(1) & 397 --- Basic Difference: - The provisions of section 397 as
well as section 35(1) Cr.P.C. deals with altogether different situations. The
basic difference, between the two provisions, is that where, section 397 Cr.P.C.
prescribes for the running of different sentences inflicted on an offender at
different trials, for different offences, without any clog of time, place and
nature of offence. Section 35 Cr.P.C enjoins that it would come into play only,
when a person is convicted at one trial of two or more offences. So apparently
both these sections are not in conflict with each other, rather it catter for
and deals with different situations and since a direction under section 35
Cr.P.C. is contingent on the conviction of a person for several offences at one
trial.4c
C.--- Ordinary and Additional Powers
36. Ordinance powers of Magistrates.--- All 5[Judicial and Executive
Magistrates], have the powers, hereinafter respectively conferred upon him and
specified in the Third Schedule. Such powers are called their “ordinance
powers.â€
6[37. Additional powers conferrable on Magistrates.--- On the recomme6ndations
of the High Court, the Provincial Government may, in addition to the ordinary
powers, invest any Magistrate with any powers specified in the Fourth Schedule.
38. [Omitted by Ordinance No. XXXVII of 2001]
D.--- Conferment, continuance and
Cancellation of Powers
39. Mode of conferring powers.--- (1) In conferring powers under this Code
Provincial Government may be order, empower persons specially by name or in
virtue of their office or classes of official generally by their official title.
(2) Every such order shall take effect from the date on which it is communicated
to the person so empowered.
40. Powers of officers appointed.--- Whenever any person holding an office in
the service of Government who has been invested with any powers under this Code
though out any local area in appointed to an equal or higher office of the same
nature, within a like local area under the same Provincial Government, he shall,
unless the Provincial Government otherwise directs, or has otherwise directed,
exercise the same powers in the local area in which he is so appointed.
1[41. Withdrawal of Powers---1 (1) The Provincial Government may, on the
recommendations of the High Court, withdraw all or any powers conferred by it
under this Code on any person or Magistrate,
-----------------
PART II
GENERAL PROVISIONS
CHAPTER IV
OF AID AND INFORMATION TO THE MAGISTRATES, THE POLICE AND PERSONS MAKING
ARREASTS
42. Public when to assist Magistrate and police.--- Every person is bound to
assist a Magistrate Justice of the Peace or police officer reasonably demanding
his aid:---
(a) in the taking or preventing the escape of any other person where such
Magistrate or police officer is authorized to arrest;
(b) in the prevention or suppression of a breach of the peace, or in the
prevention of any injury attempted to be committed to any railway, canal,
telegraph or public property.
43. Aid to person, other than police officer, executing warrant.--- When a
warrant is directed to a person other than a police officer, any other person
may aid in the execution of such warrant, if the person to whom the warrant is
directed be near at hand and acting in the execution of the warrant.
44. Public to give information of certain offences.--- (1) Every person aware of
the commission of, or the intention of any other person to commit, any offence
punishable under any of the following sections of the Pakistan Penal Code,
namely, 121, 121A, 122, 123, 123A, 124, 124A, 125, 126, 130, 143, 144, 145, 147,
148, 153A, 161, 162, 163, 164, 165, 168, 170, 231, 232, 255, 302, 303, 304,
304A, 364A, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449,
450, 456, 457, 458, 459, 460 and 489A, shall, in the absence of reasonable
excuse, the burden of proving which shall lie upon the person so aware,
forthwith give information to the nearest magistrate 1[Justice of the Peace] or
police officer of such commission or intention.]
(2) For the purposes of this section the term “offence†includes any act
committed at any place out of Pakistan which would constitute an offence if
committed in Pakistan
45. Village-headman, accountant, land-holders and others bound to report certain
matters.--- (1) Every village-headman, accountant, village-accountant, village
police officer, owner or occupier of land, and the agent of any such owner or
occupier in charge of the management of that land and every officer employed in
the collection of revenue or rent of land on the part of the Government or the
Court of Wards, shall forthwith communicate to the nearest Magistrate 3[or
Justice of the Peace] or the officer-in-charge of the nearest police station
whichever is the nearer, any information which he may possess respecting:---
(a) the permanent or temporary residence of any notorious receiver or vendor of
stolen property in any village of any village of which he is headman,
accountant, watchman or police officer, or in which he owns or occupies land, or
is agent, or collects revenue or rent;
(b) the resort to any police within, or the passage through, such village of any
person whom he knows, or reasonably suspects to be a thug, robber, escaped
convict or proclaimed offender;
(c) the commission of, or intention to commit, in or near such village any
non-bailable offence or any offence punishable under sections 143, 144, 145, 147
or 148 of the Pakistan Penal Code.
(d) the occurrence in or near such village or any sudden or unnatural death or
of any death under suspicious circumstances; or the discovery in or near such
village of any corpse or part of a corpse, in circumstances which lead to a
reasonable suspicion that such a death has occurred or the disappearance from
such village of any person in circumstances which lead to a reasonable suspicion
that a non-bailable offence has been committed in respect of such person;
(e) the commission of, or intention to commit, at any place out of Pakistan near
such village any act which, if committed in Pakistan would be an offence
punishable under any of the following sections of the Pakistan Penal Code,
namely, 231, 232, 233, 234, 235, 236, 237, 238, 302, 304, 382, 392, 393, 394,
395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459, 460, 489A,
489B, 489C and 489D;
(f) any matter likely to affect the maintenance of order or the prevention of
crime or the safety of person or property respecting which 1[Any officer
authorized by the Provincial Government1] by general or special order made with
the previous sanction of the Provincial Government has directed him to
communicate information.
(2) In this section:---
(i) “village†includes village-land; and
(ii) the expression “proclaimed offender†includes any person proclaimed as an
offender by any Court or authority established or continued by the Central
Government in any part of Pakistan, in respect of any act which if committed in
Pakistan, would be punishable, under any of the following sections of the
Pakistan Penal Code, namely, 302, 304, 382, 392, 394, 395, 396, 397, 398, 399,
403, 435, 436, 449, 450, 457, 458, 459 and 460.
(3) Appointment of village-headman 2[District officer (Revenue)] in certain
cases for purposes of this section. Subject to rules in this behalf to be made
by the Provincial Government the District officer Revenue may from time to time
appoint one or more persons with his or their consent to perform the duties of a
village-headman has or has not been appointed for that village under any other
law.
CHAPTER V
OF ARREST, ESCAPE AND RETAKING
A.--- Arrest generally
46. Arrest how made.--- (1) In making an arrest the police officer other person
making the same shall actually touch or confine the body of the person be
arrested, unless there be a submission to the custody by word or action.
(2) Resisting endeavour to arrest. If such person forcibly resists the endeavour
to arrest him or attempts to evade the arrest, such police officer or other
person may use all means necessary to effect the arrest.
(3) Nothing in this section gives a right to cause the death of a person who is
not accused of an offence punishable with death or with 2[imprisonment for
life.]
47. Search of place entered by person sought to be arrested.--- If any person
acting under a warrant of arrest, or any police officer having authority to
arrest has reason to believe that person to be arrested has entered into, or is
within, any place, the person residing in, or being in charge of such place
shall, on demand of such persons acting as aforesaid or such police officer,
allow him free ingress thereto, and afford all reasonable facilities for a
search therein.
48. Procedure where ingress not obtainable.--- If ingress such place cannot be
obtained under section 47 it shall be lawful in any case for a person acting
under a warrant and in any case in which a warrant may issue, but cannot be
obtained without affording the person to be arrested an opportunity of escape,
for a police officer to enter such place and search therein, and in order to
effect an entrance into such place, to break open any outer or inner door or
window of any house or place, whether that of the person to be arrested or of
any other person, if after notification of his authority and purpose, and demand
of admittance duly made, he cannot otherwise obtain admittance.
Breaking open zanana. Provided that if any such place is an apartment in the
actual occupance of a woman (not being the person to be arrested) who, according
to customs, does not appear in public such person or police officer shall,
before entering such apartment, give notice to such woman that she is at liberty
to withdraw and shall afford her every reasonable facility for withdrawing, and
may then break open the apartment and enter it.
49. Power to break open doors and windows for purposes of liberation.--- Any
police or other person authorized to make an arrest may break open any out or
inner door or window of any house or place in order to liberate himself or any
other person who, having lawfully entered for the purpose of making an arrest,
is detained therein.
COMMENTARY
Fact that girl below age of 16 years, does not make marriage itself invalid,
adult person contracting such marriage or persons solemnizing same may, however,
be held criminally liable.2a
50. No unnecessary restraint.--- The person arrested shall not be subjected to
more restraint than is necessary to prevent his escape.
51. Search of arrested person.--- Whenever a person is arrested by a police
officer under a warrant which does not provide for the taking of bail, or under
a warrant which provides for the taking of bail but the person arrested cannot
furnish bail, and
whenever a person is arrested without warrant, or by a private person under a
warrant, and cannot legally be admitted to bail, or is unable to furnish bail,
the officer making the arrest or, when the arrest is made by a private person,
the police officer to whom he makes over person arrested, may search such
person, and place in safe custody all articles, other than necessary
wearing-apparel, found upon him.
52. Mode of searching women.--- Whenever it is necessary to cause a woman to be
searched, the search shall be made by another woman, with strict regard to
decency.
53. Power to seize offensive weapons.--- The officer or other person making any
arrest under this Code may take from the person arrested any offensive weapons
which he has about his person, and shall deliver all weapons so taken to the
Court of officer before which or whom the officer or person making the arrest is
required by this Code to produce the person arrested.
B.--- Arrest without Warrant
54. When police may arrest without warrant.---(1) Any police officer may,
without an order from a Magistrate and without a warrant, arrest:---
firstly, any person who has been concerned in any cognizable offence or against
whom a reasonable complaint has been made or credible information has been
received, or a reasonable suspicion exists of his having been so concerned;
secondly, any person having in his possession without lawful excuse, the burden
of proving which excuse shall lie on such person, any implement of
house-breaking;
thirdly, any person who has been proclaimed as an offender either under this
Code or by order of the Provincial Government;
fourthly, any person in whose possession anything is found which may reasonably
be suspected to be stolen property and who may reasonably be suspected of having
committed an offence with reference to such things;
fifthly, any person who obstructs a police officer while in the execution of his
duty, or who has escaped, or attempts to escape from lawful custody;
sixthly, any person reasonably suspected of being a deserted from the armed
forces of Pakistan, 5[x x x x x x x x x]
seventhly, any person who has been concerned in, or against whom a reasonable
complaint has been made or credible information has been received or a
reasonable suspicion exists of his having been concerned in, any act committed
at any place out of Pakistan which, if committed in Pakistan, would have been
punishable as an offence, and for which he is, under any law relating to
extradition 5[x x x x x x x x x x x x ] or otherwise, liable to be apprehended
or detained in custody in Pakistan.
eightly, any release convicted committing a breach of any rule made under
section 565, sub-section (3);
ninthly, any person for whose arrest a requisition has been received from
another police officer, provided that the requisition specifies the person to be
arrested and the offence or other cause for which the arrest is to be made and
it appears therefrom that the person might lawfully be arrested without a
warrant by the officer who issued the requisition.
55. Arrest of vagabonds, habitual robbers, etc.--- (1) Any officer-in-charge of
a police station may, in like manner, arrest or cause to be arrested:---
(a) any person found taking precautions to conceal his presence within the
limits of such stations, under circumstances which afford reason be believe that
he is taking such precautions with a view to committing a cognizable offence; or
(b) any person within the limits of such station who has no ostensible means of
subsistence, or who cannot give a satisfactory account of himself; or
(c) any person who is by repute an habitual robber, house-breaker or thief, or
an habitual receiver of stolen property knowing it to be stolen or who by repute
habitually commits extortion habitually puts or attempts to put persons in fear
of injury.
56. Procedure when police officer deputes subordinate to arrest without
warrant.--- When any officer-in-charge of a police station or any police officer
making an investigation under Chapter XIV requires any officer subordinate to
him to arrest without a warrant (otherwise than in presence) any person who may
lawfully be arrested without a warrant, he shall deliver to the officer required
to make the arrest an order in writing, specifying the person to be arrested and
the offence or other cause for which the arrest is to be made. The officer so
required shall, before making the arrest, notify to the person to be arrested
the substance of the order and, if so required by such person, shall show him
the order.
57. Refusal to give name and residence.--- (1) When any person who in the
presence of a police officer has committed or has been accused o of committing a
non-cognizable offence refuses, on demand of such officer, to give his name and
residence or gives a name or residence which such officer has reason to believe
to but false, he may be arrested by such officer in order that his name or
residence may be ascertained.
(2) When the true name and residence of such person have been ascertained, he
shall be released on his executing a bond, with or without sureties, to appear
before a Magistrate 7[having jurisdiction] if so required:
Provided that, if such person is not resident in Pakistan, the bond shall be
secured by surety or sureties in Pakistan.
(3) Should the true name and residence of such person not be ascertained within
twenty-four hours from the time of arrest or should he fail to execute the bond,
or, if so required, to furnish sufficient sureties, he shall forthwith be
forwarded to nearest Magistrate having jurisdiction.
58. Pursuit of offenders into other jurisdiction.--- A police officer may, for
the purpose of arresting without warrant any person whom he is authorized to
arrest under this, Chapter, pursue such person into any place in Pakistan.
8[Explanation.--- In this section, “police officer†includes a police officer
acting under this Code as in force in Azad Jammu and Kashmir].
59. Arrest by private persons and procedure on such arrest.--- (1) Any private
person may arrest any person who in his view commits a non-bailable and
cognizable offences, or any proclaimed offender, and without unnecessary delay,
shall make over any person so arrested to a police officer, or, in the absence
of a police officer take such person or cause him to be taken in custody to the
nearest police station.
(2) If there is reason to believe that such person comes under the provisions of
section 54, a police officer shall re-arrest him.
(3) If there is reason to believe that he has committed a non-cognizable
offence, and he refuses on the demand of a police officer to give his name and
residence, or gives a name or residence which such officer has reasons to
believe to be false, he shall be dealt with under the provisions of section 57.
If there is no sufficient reasons to believe that he has committed any offence,
he shall be at once released.
COMMENTARY
This section should not be construed so as to burden the Legislature with the
intention that in providing a shield to private individual to apprehend the
culprits who commit cognizable and non-bailable offences in their presence, it
had intended that this shield is to be limited only for these individuals who
actually see the commission of the crime with their own eyes and is not
available to those who come to their assistance on their out cry for help. Such
a restricted view could destroy the much wanted but rarely displayed public
spirit on the part of the neighbours and others who might come to the rescue of
the victims of dastardly crimes and help them in bringing the culprits to
book.8a
60. Person arrested to be taken before Magistrate or officer-in-charge of police
station.--- A police officer making an arrest without warrant shall, without
unnecessary delay and subject to the provisions herein contained as to bail,
take and send the person arrested before a Magistrate having jurisdiction in the
case or before the officer-in-charge of a police station.
61. Person arrested no to be detained for more than twenty four hours.--- No
police officer shall detain in custody a person arrested without warrant for a
longer period than under all the circumstances of the case is reasonable, and
such period shall not, in the absence of a special order of a Magistrate under
section 167, exceed twenty-four exclusive of the time necessary for the journey
form the place of arrest to the Magistrate’s Courts.
62. Police to report apprehension.--- Officer-in-charge of police station shall
report to the 8b[“Zila-Nazim†District Superintendent of Police and District
Public Safety Commission set up under the Police Act 1861(V) of 1861
simultaneously] the cases of all persons arrested without warrant, within the
limits of their respective stations, whether such persons have been admitted to
bail or otherwise.
8c[Provided that in the application of this section to the districts where the
local Government elections have not been held, or the Zila Nazim has not assumed
charge of office, any reference in this section to the Zila Nazim shall be read
as a reference to the District Coordination Officer in relation to such
districts:
Provided further that the aforesaid proviso shall cease to have effect, and
shall be deemed to have been repealed, at the time when local Governments are
installed in the districts as aforesaid.]
63. Discharge of person apprehended.--- No person who has been arrested by a
police officer shall be discharged except on his own bond, or on bail, or under
the special order of a Magistrate.
64. Offence committed in Magistrate’s presence.--- When any offence is committed
in the presence of a Magistrate within the local limits of his jurisdiction, he
may himself arrest or order any person to arrest the offender, and may
thereupon, subject to the provisions herein contained as to bail commit the
offender to custody.
65. Arrest by or in presence of Magistrate.--- Any Magistrate may at any time
arrest or direct the arrest, in his presence, within the local limits of his
jurisdiction, or any person for whose arrest he is competent at the time and in
the circumstances to issue a warrant.
66. Power, on escape, to pursue and retake.--- If a person in lawful custody
escapes or is rescued, the person from whose custody he escaped or was rescued
may immediately pursue and arrest I any place in Pakistan.
67. Provisions of section 47, 48 and 49 to apply to arrests under section 66.---
The provisions of sections 47, 48 and 49 shall apply to arrest under section 66,
although the person making any such arrest is not acting under a warrant and is
not police officer having authority to arrest.
CHAPTER VI
OF PROCESSES TO COMPEL APPEARANCE
A. --- Summons
68. Form of summons.--- (1) Every summons issued by a Court under this Code
shall be in writing in duplicate, signed and sealed by the presiding officer of
such Court, or by such other officer as the High Court may, from time, by rule,
direct.
(2) Summons by whom served. Such summons shall be served by a police officer, or
subject to such rules as the Provincial Government may prescribe in this behalf,
by an officer of the Court issuing it or other public servant:
9[Provided that the Court may, at the request of the complainant or the accused,
allow him to serve the summons on his own witnesses.]
69. Summons how served.--- (1) The summons shall, if practicable, be served
personally on the person summoned, by delivering or tendering to him one of the
duplicates of the summons.
(2) Signature of receipt for summons. Every person on whom a summons is so
served shall 10[x x x x x x x x x x] sign a receipt therefor on the back of the
other duplicate.
(3) Service of a summons on an incorporated company or other body corporate may
be effected by serving it on the secretary, local manager or other principal
officer of the corporation or by registered post letter addressed to the chief
officer of the corporation in Pakistan. In such case the service shall be deemed
to have effected when the letter would arrive in ordinary course of post.
70. Service when person summoned cannot be found.--- Where the person summoned
cannot by the exercise of due diligence be found the summons may be served be
leaving one of the duplicates for him with some adult male member of his family,
and the person with whom the summons is so left shall 10[x x x x x], sign a
receipt therefor on the back of the other duplicate.
71. Procedure when service cannot be effected as before provided.—If service in
the manner mentioned in sections 69 and 70 cannot by the exercise of the
diligence be effected, the serving officer shall affix one of the duplicates of
the summons to some conspicuous part of the house or homestead in which the
person summoned ordinarily resides; and thereupon the summons shall be deemed to
have been duly served.
72. 1[Service on servants of State, statuary body or Company.--- (1) Where the
person summoned is in the active service of the State or of 1[a statutory body
or a Company], the Court issuing the summons shall ordinary send it in duplicate
to the head of the office in which such person is employed; and such head shall
thereupon cause the summons to be served in manner provided by section 69, and
shall return it to the Court under his signature with the endorsement required
by that section.
(2) Such signature shall be evidence of due service.
73. Service of summons outside local limits.--- When a Court desires that a
summons issued by it shall be served at any place outside the local limits of
its jurisdiction, it shall ordinarily send such summons in duplicate to a
Magistrate within the local limits of whose jurisdiction the person summoned
residence or is, to be there served.
74. Proof of Service in such cases and when serving 2[person] not present.---
(1) When a summons issued by a Court is served outside the local limits of its
jurisdiction, and in any case where the 2[person] who has served a summons is
not present at the hearing of the case, an affidavit, purporting to be made
before a Magistrate, that such summons has been served, and a duplicate of the
summons purporting to be endorsed 9in manner provided by section 69 or section
70) by the person to whom it was delivered or tendered or with whom it was left
shall be admissible in evidence, and the statements made therein shall be deemed
to be correct unless and until the contrary is proved.
(2) The affidavit mentioned in this section may be attached to the duplicate of
the summons and returned to the Court.
B.--- Warrant of Arrest
75. Form of warrant of arrest.--- (1) Every warrant of arrest by a Court under
this Code shall be in writing, signed by the presiding officer or in the case of
a Bench of Magistrates, by any member of such Bench; and shall bear the sent of
the Court.
(2) Continuance of warrant of arrest.--- (1) Any Court issuing a warrant shall
remain in force until it is cancelled by the Court which issued it, or until it
is executed.
76. Court may direct security to be taken.--- (1) Any Court issuing a warrant
for the arrest of any person may in its discretion direct by endorsement on the
warrant that, if such person executed a bond with sufficient sureties for his
attendance before the Court of a specified time and thereafter until otherwise
directed by the Court, the officer to whom the warrant is directed shall take
such security and shall release such person from custody.
(2) The endorsement shall state:---
(a) the number of sureties;
(b) the amount is which they and the person for whose arrest the warrant is
issued, are to be respectively bound; and
(c) the time at which he is to attend before the Court.
(3) Recognizance to be forwarded. Whenever security is taken under this section
the officer to whom the warrant is directed shall forward the bond to the Court.
77. (1) Warrants to whom directed.--- A warrant so arrest shall ordinarily be
directed to one or more police officers, but any Court issuing officer is
immediately available, direct it to any other persons or persons and such
persons shall executed the same.
(2) Warrants to several persons. When a warrant is directed to more officers or
persons than one; it may be executed by all, or by any one or more, of them.
78. Warrant may be directed to land-holders, etc.--- (1) A 1[Magistrate of the
first class] may direct a warrant to any land-holder, farmer or manager of land
within his district or sub-division for the arrest of any escaped convict,
proclaimed offender or person who has been accused of a non-bailable offence,
and how has included pursuit.
(2) Such land-holder, farmer or manager shall acknowledge in writing the receipt
of the warrant, and shall executed it if the person for whose arrest it was
issued, is in, or enters on, his land or farm, or the land under his charge.
(3) When the person against whom such warrant is issued is arrested, he shall be
made over with the warrant to the nearest police officer, who shall cause him to
be taken before a Magistrate having jurisdiction in the case, unless security is
taken under section 76.
79. Warrant directed to police officer.--- A warrant directed or other person
executing a warrant of arrest shall notify the substances thereof to the person
to be arrested, and, if so required, shall show him the warrant.
80. Notification of substance of warrant.--- The police officer or other person
executing a warrant of arrest shall notify the substance thereof to the person
to be arrested, and, if so required, shall show him the warrant.
81. Person arrested to be brought before Court without delay:--- The police
officer or other person executing a warrant of arrest shall (subject to the
provisions of section 76 as to the security) without unnecessary delay bring the
person arrested before the Court before which he is required by law to produce
such person.
82. Where warrant may be executed.--- A warrant of arrest may be executed at any
place in Pakistan.
2[Explanation.--- In this section, “warrant of arrest†includes a warrant of
arrest issued under this Code as in force in Azad Jammu and Kashmir.]
83. Warrant forwarded for execution outside jurisdiction.---(1) When a warrant
is to be executed outside the local limits of the jurisdiction of the Court
issuing the same, such Court may, instead of directing such warrant to a police
officer, forward the same by post or otherwise to any Magistrate or District
Superintendent of Police within the local limits of whose jurisdiction it is to
be executed.
(2) The Magistrate or District Superintendent to whom such warrant is so
forwarded shall endorse his name thereon and, if practicable, cause it to be
executed in manner herein before provided within the local limits of his
jurisdiction.
84. Warrant directed to police officer for execution outside jurisdiction.---
(1) When a warrant directed to a police officer is to be executed beyond the
local limits of the jurisdiction of the Court issuing the same, he shall
ordinarily take it for endorsement either to a Magistrate or to a police officer
not below the rank of an officer-in-charge of a police station, within the local
limits of whose jurisdiction the warrant is to be executed.
(2) Such Magistrate or police officer shall endorse his name thereon and such
endorsement shall be sufficient authority to the police officer to whom the
warrant is directed to execute the same within such limits, and the local police
shall, if so required, assist such officer in executing such warrant.
(3) Where there is reason to believe that the delay occasioned by obtaining the
endorsement of the Magistrate or police officer within the local limits of whose
jurisdiction the warrant is to be executed, will prevent such execution, the
police officer to whom it is directed may executed the same without such
endorsement in any place beyond the local limits of the jurisdiction of the
Court which issued it.
(4) [Omitted by A.O., 1949].
85. Procedure on arrest of person against whom warrant issued.--- When a warrant
of arrest is executed outside the district in which it was issued, the person
arrested shall, unless the Court which issued the warrant is within twenty miles
of the place of arrest or is nearer than the Magistrate or District
Superintendent of police within the local limits of whose jurisdiction the
arrest was made, or unless security is taken under section 76, be taken before
such Magistrate or District Superintendent.
86. Procedure by Magistrate before whom person arrested is brought.--- (1) Such
Magistrate or District Superintendent shall; if the person arrested appears to
be the person intended by the Court which issued the warrant, direct his removal
in custody to such Court:
Provided that, if the offence is bailable, and such person is ready and willing
to give bail to the satisfaction of such Magistrate, District Superintendent or
a direction has been endorsed under section 76 on the warrant and such person is
ready and willing to give the security required by such direction, the
Magistrate, District Superintendent shall take bail or security as the case may
be, and forward the bond to the Court which issued the warrant:
3[Provided further that, if the offence is not bailable or no direction has been
endorsed under section 76 on the warrant, the Sessions Judge of the Sessions
Divisions in which the person is arrested may, subject to the provisions of
section 497 and for sufficient reasons, release the person on an interim bail on
such bond or security as the Sessions Judge thinks fit and direct the person to
appear by a specified date before the Court which issued the warrant and forward
the bond to that Court.]
(2) Nothing in this section shall be deemed to prevent a police officer from
taking security under section 76.
COMMENTARY
Order for removal of a prisoner to tribal area without compliance with section
86, suffers from an illegality.3a
4[86A. Procedure for removal in custody to Tribal Area. Where a person arrested
under section 85 is to be removed in custody to any place in the Tribal Areas,
he shall be produced before a Judicial Magistrate within the local limits of
whose jurisdiction the arrest was made, and such Magistrate in directing the
removal shall hear the case in the same manner and have the same jurisdiction
and powers, as nearly as may be, including the power to order the production of
evidence, as if the person arrested were charged with an offence committed with
in the jurisdiction of such Magistrate, and such Magistrate shall direct the
removal of the arrested person in custody if he is satisfied that the evidence
produced before him reaises a strong or custody if he is satisfied that the
evidence produced before him reaises a strong or probable presumption that the
person arrested committed the offence mentioned in the warrant.]
C. --- Proclamation and Attachment
87. Proclamation for person absconding.--- (1) If any Court 5[is satisfied after
taking evidence] that any person against whom a warrant has been issued by it
has absconded or is concealing himself so that such warrant cannot be executed,
such Court may publish a written proclamation requiring him to appear at a
specified place and at a specified time not less than thirty days from the date
of publishing such proclamation.
(2) The proclamation shall be published as follows:---
(a) it shall be publicly read in some conspicuous place of the town or village
in which such person ordinarily resides;
(b) it shall be affixed to some conspicuous part of the house or homestead in
which such person ordinarily resides or to some conspicuous place of such town
or village; and
(c) a copy thereof shall be affixed to some conspicuous part of the Court-house.
(3) A statement in writing by the Court issuing the proclamation to the effect
that the proclamation was duly published on a specified day shall be conclusive
evidence that requirements of this section have been complied with, and that the
proclamation was published on such day.
88. Attachment of property of person absconding.--- (1)The Court issuing a
proclamation under section 87 may at any time order the attachment of any
property movable or immovable or both belonging to the proclaimed person.
(2) Such order shall authorize the attachment of any property belonging to such
person within the district in which it is made; and it shall authorize the
attachment of any property belonging to such person without such district when
endorsed by the 6[Sessions Judge] within whose district such property is
situate.
(3) If the property ordered to be attached is a debt or other movable property,
the attachment under this section shall be made:
(a) by seizure; or
(b) by the appointment of a receiver; or
(c) by an order in writing prohibiting the delivery of such property to the
proclaimed person or to any one on his behalf; or
(d) by all or any two of such method, as the Court thinks fit.
(4) If the property ordered to be attached is immovable, the attachment under
this section shall, in the cause of land paying revenue to the Provincial
Government, be made through the 6a[“District Officer†(Revenue)] in which the
land is situated, and in all other cases;---
(e) by taking possession; or
(f) by the appointment of a receiver; or
(g) by an order in writing prohibiting the payment of rent or delivery of
property to the proclaimed person or to any one on his behalf; or
(h) by all or any two of such methods, as the Court thinks fit.
(5) If the property ordered to be attached consists of live-stock or is of a
perishable nature, the Court may, if it thinks it expedient, order immediate
sale thereof, and in such case the proceeds of the sale shall abide the order of
the Court.
(6) The power, duties and liabilities of a receiver appointed under this section
shall be the same as those of a receiver appointed under 7[Order XL of the Code
of Civil Procedure, 1908.]
(6A) If any claim is preferred to, or objection made to the attachment of, any
property attached under this section within six months from the date of such
attachment, by any person other than the proclaimed person, on the ground that
the claimant or objector has an interest in such property, and that such
interest is not liable to attachment under this section, the claim or objection
shall be inquired into, and may be allowed or disallowed in whole or in part:
Provided that any claim preferred or objection made within the period allowed by
this sub-section may, in the event of the death of the claimant or objector, be
continued by his legal representative.
(6B) Claims or objection under sub-section (6A) may be preferred or made in the
Court by which the order of attachment is issued or, if the claim or objection
is in respect of property attached under an order endorsed by a 7a[Sessions
Judge] in accordance with the provisions of sub-section (2), in the Court of
such Magistrate.
(6C) Every such claim or objection shall be inquired into by the Court 7b[or
Magistrate] in which it is referred or made7c.
Provided that, if it is preferred or made in the Court of a District Magistrate
such Magistrate may make it over for disposal to any Magistrate 8[x x x x x x]
subordinate to him.
(6D) Any person whose claim or objection has been disallowed in whole or in part
by an order under sub-section (6A) may, within a period of one year from the
date of such order, institute a suit to establish the right which he claims in
respect of property in dispute; but subject to the result of such suit, if any,
the order shall be conclusive.
(6E) If the proclaimed person appears within the time specified in the
proclamation, the Court shall make an order releasing the property from the
attachment.
(7) If the proclaimed person does not appear within the time specified in the
proclamation, the property under attachment shall be at the disposal of the
Provincial Government, but it shall not be sold until the expiration of six
months from the date of the attachment and until any claim preferred or
objection made under sub-section (6A) has been disposed of under that
sub-section, unless it is subject to speedy and natural decay, or the Court
considers that the sale would be for the benefit of the owner, in either of
which cases the Court may cause it to be sold whenever it thinks fit.
COMMENTARY
S. 88. Attachment of property of absconding accused. Objection petition against.
Impleading of auction-purchaser of attached property as party in objection
petition. Objection petition made before auction of attached property.
Magistrate did not stay auction. Appellant auction purchased property in
auction. Ultimately objection petition dismissed. High Court set aside order of
trial Court and appellate Court and remanded petition for disposal afresh in
accordance with law.8a
89. Restoration of attached property.--- If within two years from the date of
the attachment, any person whose property is or has been at the disposal of the
Provincial Government, under sub-section (7) of section 88, appears voluntarily
or is apprehended and brought before the Court by whose order the property was
attached, or the Court of which such Court by whose order the property was
attached Court that he did not abscond or conceal himself for the purpose of
avoiding execution of the warrant and that he had not such notice of the
proclamation as to enable him of attend within the time specified therein, such
property, or, if the same has been sold, net proceeds of the sale, or, if part
only thereof has been sold the net proceeds of the sale and the residue of the
property, shall after satisfying thereout all costs incurred in consequence of
the attachment, be delivered to him.
D. --- Other Rules regarding Process
90. Issue of warrant in lieu of, or in addition to, summons.--- A Court may, in
any case in which it is empowered by this Code to issue a summons for the
appearance of any person, after recording its reasons in writing, a warrant for
his arrest:---
(a) if, either before the issue of such summons or after the issue of the same
but before the time fixed for his appearance, the Court sees reason to believe
that he has absconded or will not obey the summons; or
(b) if at such time he fails to appear and the summons is proved to have been
duly served in time to admit of his appearing in accordance therewith and no
reasonable excuse is offered for such failure.
91. Power to take bond for appearance.--- When any person for whose appearance
or arrest the officer presiding in any Court is empowered to issue a summons
warrant, is present in such Court, such officer may require such person to
execute a bond, with or without sureties, for his appearance in such Court.
92. Arrest by breach of bond for appearance.--- When any person who is bound by
any bond taken under this Code to appear before a Court, does not so appear, the
officer presiding in such Court may issue a warrant directing that such person
be arrested and produced before him.
93. Provisions of this Chapter generally applicable to summons and warrants of
arrest.--- The provisions contained in this Chapter relating to a summons and
warrant, and their issue, service and execution, shall, so far as may be, apply
to every summons and every warrant of arrest issued under this Code.
E. --- Special Rules regarding process issued for service or execution outside
Pakistan and process received from outside Pakistan for
service or execution within Pakistan
93A. Sending of summons for service outside Pakistan.--- (1) Where a Court in
Pakistan desires that a summons issued by it to an accused person shall be
served at any place outside Pakistan within the local limits of the jurisdiction
of a Court established or continued by the authority of the Central Government
in exercise of its foreign jurisdiction, it shall send such summons, in
duplicate, by post or otherwise, to the presiding officer of that Court to be
served.
(2) The provisions of section 74 shall apply in the case of a summons sent for
service under this section as if the presiding officer of the Court to whom it
was sent were a Magistrate in Pakistan.
93B. Sending of warrant for execution outside Pakistan.--- Notwithstanding
anything contained in section 82, where a Court in Pakistan desires that a
warrant issued by it for the arrest of an accused person shall be executed at
any place outside Pakistan within the local limits of the jurisdiction of a
Court established or continued by the authority of the Central Government in
exercise of its foreign jurisdiction, it may send such warrant, by post or
otherwise, to the presiding officer of that Court to the executed.
93C. Service and execution in Pakistan of processes received from outside
Pakistan.--- (1) Where a Court has received for service or execution a summons
to, or a warrant for the arrest of, an accused person issued by a Court
established or continued by the authority of the Central Government in exercise
of its foreign jurisdiction, outside Pakistan, it shall cause the same to be
served or executed as if it were a summons or warrant received by it from a
Court in Pakistan for service or execution within the local limits of its
jurisdiction.
(2) Where any warrant of arrest has been so executed the person arrested shall
so far as possible be dealt with in accordance with the procedure prescribed by
sections 85 and 86.
CHAPTER VII
OF PROCESSES TO COMPEL THE PRODUCTION OF DOCUMENTS AND OTHER MOVABLE PROPERTY,
AND FOR THE DISCOVERY OF PERSONS WRONGFULLY CONFINED
A. --- Summons to produce
94. Summons to produce document or other thing.--- (1) Whenever any Court, or
any officer-in-charge of a police station consider that the production of any
document or other thing is necessary or desirable for the purpose of any
investigation, inquiry, trial or other preceding under this Code by or before
such Court or officer, such Court may issue a summons, or such officer a written
order, to the person in whose possession or power such document or thing is
believed to be, requiring him to attend and produce it, or to produce it, at the
time and place stated in the summons or order:
Provided that no such officer issue any such order requiring the production of
any document or other thing which is in the custody of a Bank or bankers as
defined in the Banker’s Books Evidence Act, 1891 (XVIII of 1891) and relates, or
might disclose any information which relates to the bank account of any person
except,---
(a) for the purpose of investigation an offence under sections 405, 406, 408 and
409 and sections 421 to 424 (both inclusive) and sections 465 to 477-A (both
inclusive) of the Pakistan Penal Code, with the prior permission in writing of a
Session Judge; and
(b) in other case, with prior permission in writing of the High Court,
(2) Any person required under this section merely to produce a document or other
thing shall be deemed to have complied with the requisition if he causes such
document or thing to be produced instead of attending personally to produce the
same.
(3) Nothing in this section shall be deemed to affect the Evidence Act, 1872,
section 123 and 124, or to apply to a letter, post-card, telegram or other
document or any parcel or thing in the custody of the Postal or Telegraph
authorities.
COMMENTARY
Provisions of S. 94 relating to summons to produce document or other thing, do
not exclude from their purview an accused person. Police, however, cannot take
coercive steps u/s. 94 when accused claims privilege against testimonial
compulsion guaranteed to him by Art. 13(b) of Constitution, 1973.8b
95. Procedure as to letters and telegrams.--- (1) If any document, parcel or
thing in such custody is, in the opinion of any 2[***] Magistrate, High Court or
Court of Sessions, wanted for the purpose of any investigation, inquiry, trial
or other proceeding under this Code, such Magistrate or Court may require the
Postal or Telegraph authorities, as the case may be to deliver such document,
parcel or thing to such person as such Magistrate or Court directs.
(2) If any such documents, parcel or thing is, in the opinion of any other
Magistrate, or District Superintendent of Police, wanted for any such purpose,
he may require the Postal or Telegraph Department, as the case may be, to cause
search to be made for and to detain such document, parcel or thing pending the
order of any such 3[***] Court.
B. --- Search-warrants
96. When search warrant may be issued.--- (1) Where any Court has reason to
believe that a person to whom a summons or order under section 94 or a
requisition under section 95, sub-section (1), has been or might be addressed,
will not or would not produce the documents or thing as required by such summons
or requisition.
or where such documents or thing is not known to the Court to be in the
possession of any person.
or where the Court considers that the purposes of any inquiry, trial or other
proceedings under this Code will be served by a general search or inspection,
it may issue a search-warrant; and the person to whom such warrant is directed,
may search or inspect in accordance therewith and the provisions hereinafter
contained.
(2) [Omitted by Ordinance No. XXXVII of 2001]
97. Power to restrict warrant.--- The Court may, if it thinks fit, specify in
the warrant the particular place or part thereof to which only the search or
inspection shall extend; and the person charged with the execution of such
warrant shall then search or inspect only the place or part so specified.
98. Search of house suspected to contain stolen property, forged document,
etc.--- (1) If a 1[***]Magistrate of the first class,] upon information and
after such inquiry as he thinks necessary, has reason to believe that any place
is used for the deposit or sale of stolen property,
or that any forged documents false seals or counterfeit stamps [bank notes,
currency notes] or coins or instruments or materials used for counterfeiting
coins, or stamps, [bank notes or currency notes] or for forging, are kept or
deposited in any place.
or for the deposit, sale, manufacture or production of any obscene object such
as is referred to in section 292 of the Pakistan Penal Code or that any such
obscene objects are kept, or deposited in any place;
he may by his warrant authorize any police officer above the rank of a
constable:---
(a) to enter, with such assistance as may be required, such place, and
(b) to search the same in manner specified in the warrant, and
(c) to take possession of any property, documents, seals, stamps, [bank notes,
currency notes] or coins therein found which he reasonably suspects to be
stolen, unlawfully obtained, forged, false or counterfeit, and also of any such
instruments and materials or of any such obscene objects as aforesaid, and
(d) to convey such property, documents, seals, stamps, 3[bank notes, currency
notes], coins, instruments, or materials or such obscene objects before a
Magistrate, or to guard the same on the spot until the offender is taken before
a Magistrate, or otherwise to dispose thereof in some place of safety, and
(e) to take into custody and carry before a Magistrate every person found in
such place who appears to have been privy to the deposit, sale or manufacture or
keeping of any such property, documents, seals, stamps 3[bank notes, currency
notes,] coins, instruments or material or such obscene object knowing or having
reasonable cause to suspect the said property to have been stolen or otherwise
unlawfully obtained, or the said documents, seals, stamps, [bank notes, current
notes,] coins, instruments or materials, to have been forged, falsified or
counterfeited, or the said instruments or materials to have been or to be
intended to be used for counterfeiting coin, stamps, 1[bank notes, currency
notes,] or for forging or the said obscene objects to have been or to be
intended to be sold, let to hire, distributed, publicly exhibited, circulated,
imported or exported.
(2) The provisions of this section with respect to---
(a) counterfeit coin,
(b) coin suspected to be counterfeit, and
(c) instruments or materials for counterfeiting coin,
shall so far as they can be made applicable apply respectively to---
(a) pieces of metal made in contravention of the Metal Tokens Act, 1889, or
brought into Pakistan in contravention of any notification for the time being in
force under 5[section 16 of the Customs Act, 1969],
(b) pieces of metal suspected to have been so made or to have been so brought
into Pakistan or to be intended to be issued in contravention of the former of
those Acts, and
(c) instruments or materials for making pieces of metal in contravention of that
Act.
99. Disposal of thins found in search beyond jurisdiction.--- When in the
execution of a search-warrant at nay place beyond the local limits of the
jurisdiction of the Court which issued the same, any of the things for which
search is made, are found, such things, together with list of the same prepared
under the provisions hereinafter contained, shall be immediately taken before
the Court issuing the warrant, unless such place is nearer to the Magistrate
having jurisdiction therein than to such Court, in which case the list and
things shall be immediately taken before such Magistrate; and unless there by
good cause to the contrary, such Magistrate shall make an order authorizing them
to be taken to such Court.
99A. Power to declare certain publications forfeited and to issue
search-warrants for the same.--- (1) Where---
(a) any newspaper, or book as defined in the 6[West Pakistan Press and
Publications Ordinance, 1963, or any other law relating to press and
publications for the time being in force,] or
(b) any document,
wherever printed, appears to the Provincial Government to contain any reasonable
or seditious matter or any matter which is prejudicial to national integration
or any matter which promotes or is intended to promote feelings of enmity or
hatred between different classes of the citizens of Pakistan or which is
deliberately and maliciously intended to outrage the religious feelings of any
such class by insulting the religion or the religious beliefs of that class 7[or
any matter of the nature referred to in clause (ii) of sub-section (1) of
section 24 of the West Pakistan Press and Publications Ordinance, 1963,] that is
to say, any matter the publication of which is punishable under section 123-A or
section 124A or section 153A or section 295A 7[or Section 298A or section 298B
or Section 298C] of the Pakistan Penal Code, the Provincial Government may, by
notification in the official Gazette, stating the grounds of its opinion declare
every copy of the issue of the newspaper containing such matter, and every copy
of such book or other document to be forfeited to Government, and thereupon any
police officer may seize the same wherever found in Pakistan and any Magistrate
may be warrant authorize any police officer not below the rank of sub-inspector
to enter upon and search for the same in any premises where any city of such
issue or any such book or other document may be or may be reasonably suspected
to be.
(2) In sub-section (1) “document†includes also any painting, drawing or
photograph, or other visible representation.
99B. Application to High Court to set aside order of forfeiture.--- 8[(1) Any
person having any interest in any newspaper, book or other document, in respect
of which an order of forfeiture has been made under section 99A 9[or any other
law for the time being in force] may, within two months from the date of such
order, apply to the High Court to set aside such order on the ground that the
issue of the newspaper or the book or other document, in respect of which the
order was made, did not contain any treasonable or seditious or other matter of
such a nature as is referred to in sub-section (1) of section 99A.
10[(2) Nothing in sub-section (1) shall apply to a case where the order of
forfeiture has been made---
(a) in respect of a newspaper, book or other document printed outside Pakistan;
or
(b) in respect of a newspaper, book or other document, on the conviction, in
respect of such newspaper, book or other document, of the author or editor
thereof for any of the offences referred to in sub-section (1) of section 99A.]
99C. [Omitted by Law Reforms Ordinance, XII of 1972].
99D. Order of 1[High Court] setting aside forfeiture.--- (1) On receipt of the
application, the 1[High Court] shall, if it is not satisfied that the issue of
the newspaper, or the book or other document, in respect of which the
application has been made, contained treasonable or seditious or other matter of
such a nature as is referred to in sub-section (1) of section 99A, set aside the
order of forfeiture.
(2) [Omitted by Law Reforms Ordinance, XII of 1972].
99E. Evidence to prove nature or tendency of newspaper.--- On the hearing of any
such application with reference to any newspaper, any copy of such newspaper may
be given in evidence in aid of the proof of the nature or tendency of the words;
signs or visible representations contained in such newspaper, in respect of
which the order of forfeiture was made.
99F. Procedure in High Court.--- Every High Court shall, as soon as conveniently
may be, frame rules to regulate the procedure in the case of such applications,
the amount of the costs thereof and the execution of orders passed thereon, and
until such rules are framed, the practice of such Courts in proceedings other
than suits and appeals shall apply so far as may be practicable, to such
applications.
99G. Jurisdiction barred.--- No order passed or action taken under section 99A
shall be called in question in any Court otherwise than in accordance with the
provisions of section 99B.
C. --- Discovery of person wrongfully
confined
100. Search for person wrongfully confined.--- If any Magistrate of the first
class 1[***] has reason to believe that any person is confined under such
circumstances that the confinement amounts to an offence, he may issue a
search-warrant, and the person to whom such search shall be made in accordance
therewith, and the person, if found, shall be immediately taken before a
Magistrate, who shall make such order as in the circumstances of the case seems
proper.
D.--- General Provisions relating to Searches
101. Direction, etc. of search-warrants.--- The provision of sections 43, 75,
77, 79, 82, 83 and 84 shall, so far as may be, apply to all search-warrants
issued under section 96, section 98, section 99A or section 100.
102. Persons incharge of closed place to allow search.--- (1) Wherever any place
liable to search or inspection under this Chapter is closed, any person residing
on, or being incharge of such place shall, on demand of the officer or other
person executing the warrant, and on production of the warrant, allow him free
ingress thereto, and afford all reasonable facilities for a search therein.
(2) If ingress into such place cannot be so obtained, the officer or other
person executing the warrant may proceed in manner provided by section 48.
(3) Where any person in or about such place is reasonably suspected of
concealing about his person any article for which search should be made, such
person may be searched. If such person is a woman, the directions of section 52
shall be observed.
103. Search to be made in presence of witnesses. ---(1) Before making a search
under this Chapter, the officer or other person about to make it shall call upon
two or more respectable inhabitants of the locality in which the place to be
searched is situate to attend and witness the search and may issue an order in
writing to them or any of them so to do.
(2) The search shall be made in their presence, and a list of all things seized
in the course of such search and of the places in which they are respectively
found shall be prepared by such officer or other person and signed by such
witnesses but no person witnessing a search under this section shall be required
to attend the Court as a witness of the search unless specially summoned by it.
(3) Occupant of place searched may attend. The occupant of the place searched,
or some person in his behalf, shall in every instance be permitted to attend
during the search, and a copy of the list prepared under this section, signed by
the said witnesses, shall b e delivered to such occupant or person at his
request.
(4) When any person is searched under section 102, sub-section (3), a list of
all things taken possession of shall be prepared, and a copy thereof shall be
delivered to such person at his request.
(5) Any person who, without reasonable cause, refuses or neglects to attend any
witness a search under this section, when called upon to do so by an order in
writing delivered or tendered to him, shall be deemed to have committed an
offence under section 18 of the Pakistan Penal Code.
COMMENTARY
Requirement of making two members of the public of the locality as Mashirs to
the recovery is mandatory unless it was shown by the prosecution that it was not
possible in the circumstances of the case to have two Mashirs from the public.11
Section 103, Cr.P.C. applies with full force when search is to be made place
which is in an inhabited locality. In other words it can be said that section
103 is relatable to the place and not to the person. If place is known where
search is to be made and that place is situate in a locality which is inhabited
by the people, then it is necessary to join two or more respectable persons from
that locality to witness the search. Main object behind section 103, Cr.P.C. is
to guard against possible chicanery and concoction and for that reason witnesses
from the locality are to be joined in the investigation and if this is done and
for some reason subsequently in the trial Court those witnesses from the
locality are not produced for the reason that they had been won over, then
evidence of police officer who made the recovery can be believed if his conduct
in the investigation is beyond reproach. Requirements of section 103 are no
doubt mandatory and have to be fulfilled but if in the Court, evidence of such
witnesses from locality could not be produced for reasons satisfactorily
explained then such evidence is to be accepted and not rejected merely on the
ground that on that point there is evidence of police officer only particularly
when requirements had been fulfilled. Much depends on the place where the search
is to be made. Requirement of examining two witnesses from locality as contained
in section 103, Cr.P.C. would not apply to a running vehicle which is stopped at
some place where there are no houses in the vicinity and search is made for the
purpose of recovery. Section 103, Cr.P.C. does not apply to a running vehicle
but applies to a fixed place to be searched which is already known.12
E. Miscellaneous
104. Power to impound document, etc., produced.--- Any Court may, if it thinks
fit impound any document or thing produced before it under this Code.
105. Magistrate may direct search in his presence.--- Any Magistrate may direct
a search to be made in his presence of any place for the search of which he is
competent to issue a search-warrant.
----------------
PART IV
PREVENTION OF OFFENCES
CHAPTER VIII
OF SECURITY KEEPING THE PEACE AND FOR GOOD BEHAVIOUR
A. --- Security for keeping the peace on
Conviction.
106. Security for keeping the peace on conviction.--- (1) Whenever any person
accused of any offence punishable under Chapter VIII of the Pakistan Penal Code,
other than an offence punishable under section 143, section 149, section 153A or
section 154 thereof, or of assault or other offence involving a breach of the
peace, or of abetting the same, or any person accused of committing criminal
intimidation is convicted of such offence before a High Court, or a Court of
Session, or the Court of 2[***] a Magistrate of the first class.
and such Court is of opinion that it is necessary to require such person to
execute a bond for keeping the peace.
such Court may, at the time of passing sentence on such person, order him to
execute a bond for a sum proportionate to him means, with or without sureties,
for keeping the peace during such period, not exceeding three years, as it
thinks fit to fix.
(2) If the conviction is set aside on appeal or otherwise, the bond so executed
shall become void.
(3) An order section may also be made by an appellate Court 3[or by a Court]
exercising its powers of revision.
B.--- Security for keeping the Peace in other
Cases and Security for Good Bahivour
107. Security for keeping the peace in other cases.---(1) Whenever a
4[Magistrate of the first class] is informed that any person is likely to commit
a breach of the peace or disturb the public tranquility or to do any wrongful
act that may probably occasion a breach of the peace or disturb the public
tranquility, the Magistrate if in his opinion there is sufficient ground for
proceedings may, in manner hereinafter provided, require such person to show
cause why he should not be ordered to execute a bond with or without sureties,
for keeping the peace for such period not exceeding 1[three years] as the
Magistrate thinks fit to fix.
(2) Proceedings shall not be taken under this section unless either the person
informed against or the place where the breach of the peace or disturbance is
apprehended, is within the local limits of such Magistrate’s jurisdiction, and
no proceedings shall be taken before any Magistrate, 2[except with the approval
of the Sessions Judge], unless both the persons informed against and the place
where the breach of the peace or disturbance is apprehended, are within the
local limits of the Magistrate’s jurisdiction.
(3) Procedure of Magistrate not empowered to act under sub-section (1). When any
Magistrate not empowered to proceed under sub-section (1) has reason to believe
that any person is likely to commit a branch of the peace or disturb the public
tranquility or to do any wrongful act that may probably occasion a breach of the
peace or disturb the public tranquility, and that such breach of the peace or
disturbance cannot be prevented otherwise than by detaining such person in
custody, such Magistrate may, after recording his reason, issue a warrant for
his arrest (if he is not already in custody or before the Court), and may send
him before a Magistrate empowered to deal with the case, together with a copy of
his reasons.
(4) A Magistrate before whom a person is sent under sub-section (3) may in his
discretion detain such person in custody pending future action by himself under
this Chapter.
108. Security for good behavior from persons disseminating seditious matter. ---
Whenever a 3[Magistrate of the first class], has information that there is
within the limits of his jurisdiction any person who, within or without such
limits either orally or writing or in any other manner intentionally
disseminates or attempts to desseminate, or in anywise abets the dissemination
of: --
(a) any seditious matter, that is to say, any matter the publication of which is
punishable under section 123-A or section 124A of the Pakistan Penal Code; or
(b) any matter the publication of which is punishable under section 153 of the
Pakistan Penal Code; or
(c) any matter concerning a Judge which amounts to criminal intimidation or
defamation under the Pakistan Penal Code,
such Magistrate, if in his opinion there is sufficient ground for proceedings
may (in manner hereinafter provided) require such person to show cause why be
should not be ordered to execute a bond; with or without sureties, for his good
behaviour for period, not exceeding one year, as the Magistrate thinks fit to
fix.
No proceedings, shall be taken under this section against the editor,
proprietor, or publisher of any publication registered under, and edited,
printed and published in conformity with, the provision of the West Pakistan
Press and Publications Ordinance, 1963, or any other law relating to press and
publications for the time being in force] with reference to any matters
contained in such publication, except by the order or under the authority of
Provincial Government or some officer empowered by the Provincial Government in
this behalf.
109. Security for good behaviour from vagrants and suspected persons. Whenever a
1[Magistrate of the first class receives] information: --
(a) that any person is taking precautions to conceal his presence within the
local limits of such Magistrate’s jurisdiction, and that there is reason to
believe that such person is taking such precautions with a view to committing
any offence, or
(b) that there within such limits a person who has no ostensible means of
subsistence, or who cannot give a satisfactory account of himself, such
Magistrate may, in manner hereinafter provided, require such person to show
cause why he should not be ordered to execute a bond, with sureties, for his
good behaviour for such period, not exceeding 1[three years] as the Magistrate
thinks fit to fix.
110. Security for good behaviour from habitual offenders. --- Whenever a
2[Magistrate of the first class] receives information that any person within the
local limits of his jurisdiction: --
(a) is by habit a robber, house-breaker, thief, or forger, or
(b) is by habit a receiver of stolen property knowing the same to have been
stolen, or
(c) habitually protects or harbours thieves or aids in the concealment or
disposal of stolen property, or
(d) habitually commits, or attempts to commit, or abets the commission of, the
offence of kidnapping, abduction, extortion, cheating or mischief, or any
offence punishable under Chapter XII of the Pakistan Penal Code, or under
section 489A. section 489B, section 489C or section 489D of that Code, or
(e) habitually commits, or attempts to commit, or abets the commission of,
offences involving a breach of the peace, or
(f) is so desperate and dangerous as to render his being at large without
security hazardous to the community,
such Magistrate may, in manner hereinafter provided, require such person to show
cause why he should not be ordered to execute a bond, with sureties, for his
good behaviour for such period, not exceeding three years, as the Magistrate
thinks fit to fix.
111. Order to be made. --- [Proviso as to European vagrants.] Rep. By the
Criminal Law Amendment Act, 1923 (XII of 1923), S. 8.
112. Order to be made. --- When a Magistrate acting under section 107, section
108, section 109 or section 110 deems it necessary to require any person to show
cause under such section, he shall make an order in writing, setting forth the
substance of the information received, the amount of the bond to be executed,
the term for which it is to be in force, and the member, character and class of
sureties (if any) required.
113. Procedure in respect of person present in Court. --- If the person in
respect of whom such order is made is present in Court, it shall be read over to
him or, if he so desires, the substance thereof shall be explained to him.
114. Summons or warrant in case of person not so present. --- If such person is
not present in Court, the Magistrate shall issue a summons requiring him to
appear, or, when such person is in custody, a warrant directing the officer in
whose custody he is, to bring him before the Court;
Provided that whenever it appears to such Magistrate, upon the report of a
police officer or upon other information (the substance of which report or
information shall be recorded by the Magistrate), that there is reason to fear
the commission of a breach of the peace, and that such breach of the peace
cannot be prevented otherwise than by the immediate arrest of such person, the
Magistrate may at any time issue a warrant for his arrest.
115. Copy of order under section 112 to accompany summons or warrant. --- Every
summons or warrant issued under section 114 shall be accompanied by a copy of
the order made under section 112 and such copy shall be delivered by the officer
serving or executing such summons or warrant to the person served with, or
arrested under the same.
116. Power to dispense with personal attendance. --- The Magistrate may, if he
sees sufficient cause, dispense with the personal attendance of any person
called upon to show cause why he should not be ordered to execute a bond for
keeping the peace, and permit him to appear by a pleader.
117. Inquiry as to truth of information. --- (1) When an order under section 12
has been read or explained under section 113 to a person present in Court, or
when any person appears or is brought before a Magistrate in compliance with, or
in execution of a summons or warrant, issued under section 114, the Magistrate
shall proceed to inquire into the truth of the information upon which action has
been taken, and to take such further evidence as may appear necessary.
1-2[(2) Such inquiry shall be made as nearly as may be practicable, in the
manner prescribed in Chapter XX for conducting trials and recording evidence,
except that no charge need be framed.]
(3) Pending the completion of the inquiry under sub-section (1) the Magistrate,
if he considers that immediate measures are necessary for the prevention of a
breach of the peace or disturbance of the public tranquility or the commission
of any offence or for the public safety, may for reasons to be recorded in
writing, direct the person in respect of whom the order under section 112 has
been made to execute a bond, with or without sureties, for keeping the peace or
maintaining good behaviour until the conclusion of the inquiry, and may detain
him in custody until such bond is executed or, in default of execution, until
the inquiry is concluded;
Provided that: ---
(a) no person against whom proceedings are not being taken under section 108,
section 109, or section 110, shall be directed to execute a bond for maintaining
good behaviour, and
(b) the conditions of such bond, whether as to the amount thereof or as to the
provision of sureties or the number thereof or the pecuniary extent of their
liability, shall not be more onerous than those specified in the order under
section 112.
(4) For the purposes of this section the fact that a person is an habitual
offender or is so desperate and dangerous as to render his being at large
without security hazardous to the community may be proved by evidence of general
repute or otherwise.
(5) Where two or more persons have been associated together in the matter under
inquiry they may be dealt with in the same or separate inquiries as the
Magistrate shall think just.
118. Order to give security. --- (1) If, upon such inquiry, it is proved that it
is necessary for keeping the peace or maintaining good behaviour, as the case
may be, that the person in respect of whom the inquiry is made should execute a
bond, with or without sureties, the Magistrate shall make an order accordingly:
Provided: ---
firstly, that no person shall be ordered to give security of a nature different
from, or of an amount larger than, or for a period longer than, that specified
in the order made under section 111:
secondly, that the amount of every bond shall be fixed with due regard to the
circumstances of the case and shall not be excessive:
thirdly, that when the person in respect of whom the inquiry is made is a minor,
the bond shall be executed only by his sureties.
119. Discharge of person informed against. --- If on an inquiry under section
117, it is not proved that it is necessary for keeping the peace or maintaining
good behaviour, as the case may be, thus the person in respect of whom the
inquiry is made, should execute a bond, the Magistrate shall made an entry on
the record to that effect, and if such person is in custody only for the
purposes of the inquiry, shall release him, or, if such person is not in
custody, shall discharge him.
C. --- Proceedings in all cases subsequent to
Order to Furnish Security
120. Commencement of period of which security is required. (1) If any person, in
respect of whom an order requiring security is made under section 106 or section
118, is, at the time such order is made, sentenced to, or undergoing a sentence
of imprisonment the period for which such security is required shall commence on
the expiration of such sentence.
(2) In other cases such period shall commence on the date of such order unless
the Magistrate, for sufficient reason fixes a later date.
121. Contents of bond. --- The bond to be executed by any such person shall bind
him to keep the peace or to be of good behaviour, as the case may be, and in the
later case the commission or attempt to commit, or the abutment of, any offence
punishable with imprisonment, wherever it may be committed, is a breach of the
bond.
122. Power to reject sureties. --- (1) A Magistrate may refuse to accept any
surety offered, or may reject any surety previously accepted by him or his
predecessor under this Chapter on the ground that such surety is an unfit person
for the purposes of the bond:
Provided that, before so refusing to accept or rejecting any such surety, he
shall either himself hold an inquiry on oath into the fitness of the surety, or
cause such inquiry to be held and a report to be made thereon by a Magistrate to
him.
(2) Such Magistrate shall, before holding inquiry, give reasonable notice to the
surety and to the person by whom the surety was offered and shall in making the
inquiry record the substance of the evidence adduced before him.
(3) If the Magistrate is satisfied, after considering the evidence so adduced
either before him or before a Magistrate dep8uted under sub-section (1), and the
report of such Magistrate (if any) that the surety is an unfit person for the
purposes of the bond, he shall make an order refusing to accept or rejecting, as
the case may be, such surety and recording his reasons for so doing:
Provided that before making an order rejecting any surety who has previously
been accepted, the Magistrate shall issue his summons or warrant, as he thinks
fit, and cause the person for whom the surety is bound to appear or to be
brought before him.
123. Imprisonment in default of security. --- (1) If any person ordered to give
security under section 106 or section 118 does not give such security on or
before the date on which the period for which such security is to be given
commence, he shall, except in the case next hereinafter mentioned be committed
to prison, or, if he is already in prison be detained in prison until such
period expires or until within such period the gives the security to the Court
or Magistrate who made the order requiring it.
(2) Proceedings when to be laid before High Court or Sessions Judge. When such
person has been ordered by a Magistrate to give security for a period exceeding
one year, such Magistrate shall, if such person does not give such security as
aforesaid, issue a warrant directing him to be detained in prison pending the
orders of the Session Judge; and the proceedings shall be laid, as soon as
conveniently may be, before such Judge.
(3) The Sessions Judge, after examining such proceedings and requiring from the
Magistrate any further information or evidence which he thinks necessary, may
pass such order on the cases as he thinks fit:
Provided that the period (if any) for which any person is imprisoned for failure
to give security shall not exceed three years.
(3A) If security has been required in the course of the same proceedings or
Assistant Sessions Judge from two or more persons in respect of anyone of whom
the proceedings are referred to the Sessions Judge under sub-section (2) such
reference shall also include the case of any other such persons who has been
ordered to give security and the provisions of sub-sections (2) and (3), shall,
in that event, apply to the case of such other person also, except that the
period (if any) for which he may be imprisoned shall not exceed the period for
which he was ordered to give security.
(3B) A Sessions Judge may in his discretion transfer any proceedings laid before
him under sub-section (2) or sub-section (3A) to an Additional Sessions Judge or
Assistant Sessions Judge and upon such transfer, such Additional Session Judge
or Assistant Sessions Judge under may exercise the powers of a Sessions Judge
under this section in respect of such proceedings.
(4) If the security is tendered to the officer-in-charge of the jail, he shall
forthwith refer the matter to the Court or Magistrate who made the order, and
shall await the orders of such Court or Magistrate.
(5) Kind of imprisonment. Imprisonment for failure to give security for keeping
the peace shall be simple.
(6) Imprisonment for failure to give security for good behaviour shall, where
the proceedings have been taken under section 108 be simple and where the
proceedings have been taken under section 109 or section 110 be rigorous or
simple as the Court or Magistrate in each case directs.
124. Power to release persons imprisoned for failing to give security. --- (1)
Whenever the 1[Sessions Judge] is of opinion that any person imprisoned for
failing to give security under this Chapter may be released without hazard to
the community or to any other person, he may order such person to be discharged.
(2) Whenever any person has been imprisoned for failing to give security under
this Chapter, the 2[Sessions Judge] may (unless) the order has been made by some
Court superior to his own make an order reducing the amount of the security or
the number of sureties or the time for which security has been required.
(3) An order under sub-section (1) may direct the discharge of such person
either without conditions or upon any conditions which such person accepts:
Provided that any condition imposed shall cease to be operative when the period
for which such person was ordered to give security has expired.
(4) The Provincial Government may prescribed the conditions upon which a
conditional discharge may be made.
(5) If any condition upon which any such person has been discharged is, in the
opinion of the 1[Sessions Judge] by whom the order or discharge was made or of
his successor, not fulfilled, he may cancel the same.
(6) When a conditional order of discharge has been cancelled under sub-section
(5), such person may be arrested by any police officer without warrant, and
shall thereupon be produced before the [Sessions Judge].
Unless such person then gives security in accordance with the terms of the
original order for the unexpired portion of the term for which he was in the
first instance committed or ordered to be detained (such portion being deemed to
be a period equal to the period between the date of the breach of the conditions
of discharge and the date on which, except for such conditional discharge, he
would have been entitled to release), the [Sessions Judge] may remand such
person to prison to undergo such unexpired portion.
A person remanded to prison under this sub-section shall, subject to the
provisions of section 122, be released at any time on giving security in
accordance with the terms of the original order for the unexpired portion
aforesaid to the Court or Magistrate by whom such order was made, or to its or
his successor.
125. Power of District Magistrate to cancel any bond for keeping the peace or
good behaviour. --- The [Sessions Judge] may at any time, for sufficient reasons
to be recorded in writing, cancel any bond for keeping the peace or for good
behaviour executed under this Chapter by order of any Court in his district not
superior to his Court.
126. Discharge of sureties. --- (1) Any surety for the peaceable conduct or good
behaviour of another person may at any time apply to a 1[concerned Magistrate of
the first class] to cancel any bond executed under this Chapter within the local
limits of his jurisdiction.
(2) On such application being made, the Magistrate shall issue his summons or
warrant, as he thinks fit, requiring the person for whom such surety is bound to
appear or to be brought before him.
126A. Security for unexpired period of bond. --- When a person for whose
appearance a whose appearance a warrant or summons has been issued under the
proviso to sub-section (3) of section 122, or under section 125, sub-section
(2), appears or is brought before him, the Magistrate shall cancel the bond
executed by such person and shall order such person to give, for the unexpired
portion of the term of such bond fresh security of the same description as the
original security. Every such order shall, for the purposes of section 121, 122,
123 and 124, be deemed to be an order made under section 106 or section 118, as
the case may be.
CHAPTER IX
UNLAWFUL ASSEMBLIES AND MAINTENANCE OF PUBLIC PEACE AND SECURITY
127. Assembly to disperse on command or Magistrate or police officer. --- (1)
Any 2[***] Magistrate or officer-in-charge of a police station may command any
unlawful assembly of five or more persons likely to cause a disturbance of the
public peace to disperse; and it shall thereupon be the duty of the members of
such assembly to disperse accordingly.
(2) [Omitted by A.O., 1949].
128. Use of civil force to disperse.--- If, upon being so commanded any such
assembly does not disperse, or if, without being so commanded, it conducts
itself in such a manner as to show a determination not to disperse, any 3[x x x
x x] or officer-in-charge of a police station, may proceed to disperse such
assembly by force, and may require the assistance of any male person, not being
an officer, soldier, sailor or airman in the armed forces of Pakistan 4[x x x x
x] and acting as such, for the purpose of dispersing such assembly, and, if
necessary, arresting and confining the persons who form part of it, in order to
disperse such assembly or that they may be punished according to law.
5[Provided that for dispersing any assembly, firing shall not be resorted to
except under the specific directions of an officer of the police not below the
rank of an Assistant Superintendent or Deputy Superintendent of Police.]
129. Use of military force.--- If any such assembly cannot be otherwise
dispersed, and if it is necessary for the public security that it should be
dispersed, the 3[“the Police Officer of the highest rank not below an Assistant
Superintendent, or Deputy Superintendent of Policeâ€] who is present may cause it
to be dispersed by military force.
130. Duty of officer commanding troops required by Magistrate to disperse
assembly. --- When a 4[“a Police Officer of the highest rank not below an
Assistant Superintendent, or Deputy Superintendent of Policeâ€] determines to
disperse any such assembly by the armed forces, he may require any officer
thereof in command of any group of persons belonging to the armed forces to
disperse such assembly with the help of the armed forces under his command and
to arrest and confine such persons forming part of it as 5[“or such Police
Officerâ€] may direct, or as it may be necessary to arrest and confine in order
to disperse the assembly or to have them punished according to law.
131. Power of commissioned military officers to disperse assembly. --- When the
public security is manifestly endangered by such assembly, and when no 1[“Police
Officer of the highest rank not below an Assistant Superintendent, or Deputy
Superintendent of Policeâ€] can be communicated with any Commissioned Officer of
the Pakistan Army may disperse such assembly by military force, and may arrest
and confine any persons forming part of it, in order to dippers such assembly or
that they may be punished according to law; but if, while he is acting under
this section, it becomes practicable for him to communicate with 2[“a Police
Officer of the highest rank not below an Assistant Superintendent, or Deputy
Superintendent of Policeâ€], he shall do so, and shall thenceforward obey the
instructions of 3[such Police Officer] as the whether he shall or shall not
continue such action.
4[131A. Power to use military force for public security and maintenance of law
and order. --- (1) If the Provincial Government is satisfied that for the public
security, protection of life and property, public peace and the maintenance of
law and order, it is necessary to secure the assistance of the armed force, the
Provincial Government may require with the prior approval of the Federal
Government or the Federal Government may, on the request of the Provincial
Government, direct, any officer of the armed forces to render such assistance
with the help of the armed forces under his command, and such assistance shall
include the exercise of powers specified in sections 46 to 49, 53, 54, 5(a) and
(c), 58, 63 to 67, 100, 102 and 103:
Provided that such powers shall not include the powers of a Magistrate.
(2) Every such officer shall obey such requisition on direction, as the case may
be, and in doing so may use such force as the circumstances may require.
(3) In rendering assistance relating to exercise of powers specified in
sub-section (1), every officer shall, as far as may be, follow the restrictions
and conditions laid down in the Code.]
132. Protection against persecution for acts done under this Chapter. --- No
prosecution against any person for any act purporting to be done under this
Chapter shall be instituted in any Criminal Court except with the sanction of
the Provincial Government; and
(a) no 1[***] police officer acting under this Chapter in good faith,
(b) no officer acting under section 131 in good faith,
(c) no person doing any act in good faith in compliance with a requisition under
section 128 or section 130, 2[or section 131-A]; and
(d) no inferior officer, or soldier, sailor or airman in the armed forces 3[***]
doing any act in obedience to any order which he was bound to obey.
Shall be deemed to have thereby committed an offence:
Provided that no such prosecution shall be instituted in any Criminal Court
against any officer or soldier, sailor or airman in the armed forces except with
the sanction of the Central Government.
4[132-A. Definitions: In this Chapter: ---
(a) The expression “armed forces†means the military, naval and air forces,
5[***] operating as land forces and includes any other armed forces of Pakistan;
6[aa) The expression “civil armed forces†means Pakistan Rangers, Frontier
Corps, Frontier Constabulary, Balochistan Constabulary, Pakistan Coast Guards or
any other force as the Federal Government may notify;]
(b) “Officer†in relation to the armed forces, means a person Commissioned,
Gazetted or in pay as an officer of the armed forces and includes a Junior
Commissioned Officer, a warrant officer a petty officer and a non-Commissioned
Officer; and
(c) “Soldier†includes a member of the force constituted under the Act referred
to in clause (a)â€].
CHAPTER X
PUBLIC NUISANCES
133. Conditional order for removal of nuisance. --- (1) Whenever a 1Magistrate
of the first class considers, on receiving a police report or other information
and on taking such evidence (if any) as he thinks fit,
that any unlawful obstruction or nuisance should be removed from any way, river
or channel which is or may be lawfully used by public, or from any public place,
or
that the conduct of any trade or occupation, or the keeping of any goods or
merchandise, is injurious to the health or physical comfort of the community,
and that in consequence such trade or occupation should be prohibited or
regulated or such goods or merchandise should be removed or the keeping thereof
regulated, or
that the construction of any building, or the disposal of any substance, as
likely to occasion conflagration or explosion, should be prevented or stopped,
or
that any building, tent or structure, or any tree is in such a condition that it
is likely to fall and thereby cause injury to persons living or carrying on
business in the neighbourhood or passing by, and that in consequence the
removal, repair or support of such building, tent or structure, or the removal
or support of such tree, is necessary, or
that any tank, well or excavation adjacent to any such way or public place
should be fenced in such manner as to prevent danger arising to the public, or
that any dangerous animal should be destroyed, confined or otherwise disposed
of,
such Magistrate may make a conditional order requiring the person causing such
obstruction or nuisance, or carrying on such trade or occupation, or keeping any
such goods or merchandise, or owning, possessing or controlling such building
tent, structure, substance, tank, well or excavation, or owning or possessing
such animal or tree, within a time to be fixed in the order,
to remove such obstruction or nuisance; or
to desist from carrying on, or to remove or regulate in such manner as may be
directed, such trade or occupation; or
to remove such goods for merchandise, or to regulate in such manner as may be
directed, such trade or occupation; or
to remove such goods or merchandise, or to regulate the keeping thereof in such
manner as may be directed; or
to prevent or stop the erection of, or to remove, repair or support, such
building, tent or structure; or
to remove or support such tree; or
to alter the disposal of such substance; or
to fence such tank, well or excavation, as the case may be; or
to destroy, confine or dispose of such dangerous animal in the manner provided
in the said order;
or, if he objects so to do,
to appear before himself or some other 1[Magistrate of the first class], at a
time and place to be fixed by the order, and move to have the order set aside or
modified in the manner hereinafter provided.
(2) No order duly made by a Magistrate under this section shall be called in
question in any Civil Court.
Explanation. A “public place†includes also property belonging to the State
camping grounds and ground left unoccupied for sanitary or recreative purposes.
134. Service of notification of order. --- (1) The order shall, if practicable,
be served on the person against whom it is made, in manner herein provided for
service of a summons.
(2) If such order cannot be served, it shall be notified by proclamation,
published in such manner as the Provincial Government may by rule direct, and a
copy thereof shall be struck up at such place or places as may be fittest for
conveying the information to such perform.
135. Person to whom order is addressed to obey or show cause or claim jury. ---
This person against whom such order is made shall:
(a) perform, within the time and in the manner specified in the act directed
thereby; or
(b) appear in accordance with such order and either show cause against the same
or apply to the Magistrate by whom it was made to appoint a jury to try whether
the same is reasonable and proper.
136. Consequence of his failing to do so. --- If such person does not perform
such act or appear and show cause or apply for the appointment of a jury as
required by section 135, he shall be liable to the penalty prescribed in that
behalf in section 188 of the Pakistan Penal Code, and the order shall be made
absolute.
137. Procedure where he appears and show cause. --- (1) If he appears and shows
cause against the order, the Magistrate shall take evidence in the matter 3[in
the manner provided in Chapter XX.]
(2) If the Magistrate is satisfied that the order is not reasonable and proper,
no further proceedings shall be taken in the case.
(3) If the Magistrate is not so satisfied, the order shall be made absolute.
138. Procedure where he claims jury. --- (1) On receiving an application under
section 135 to appoint a jury, the Magistrate shall: --
(a) forthwith appoint a jury consisting of an uneven number of persons not less
than five, of whom the foreman and one-half of the remaining members shall be
nominated by such Magistrate, and the other members by the applicant;
(b) summon such foreman and members to attend at such place and time as the
Magistrate thinks fit; and
(c) fix a time within which they are to return their verdict.
(2) The time so fixed may, for good cause shown, be extended by the Magistrate.
139. Procedure where jury finds Magistrate’s order to be reasonable. --- (1) If
the jury or a majority of the jurors find that the order of the Magistrate is
reasonable and proper as originally made, or subject to modification which the
Magistrate accepts, the Magistrate shall make the order absolute subject to such
modification (if any).
(2) In other cases no further proceedings shall be taken under this Chapter.
139-A. Procedure where existence of public right is dined. --- (1) Where an
order is made under section 133 for the purpose of preventing obstruction,
nuisance or danger to public in the use of any way, river, channel or place, the
Magistrate shall, in the appearance before him of the person against whom the
order was made, question him as to whether he denies the existence of any public
right in respect of the way, river, channel or place, and if he does so the
Magistrate shall, before proceeding under section 137 or section 138, inquire
into the matter.
(2) If in such inquiry Magistrate finds that there is any reliable evidence in
support of such denial, he shall stay the proceedings until the matter of the
existence of such right has been decided by a competent Civil Court; and, if he
finds that there is no such evidence, he shall proceed as laid down in section
137 or section 138, as the case may require.
(3) A person who has, on being questioned by the Magistrate under sub-section
(1) failed to deny the existence of a public right of the nature therein
referred to, or who having made such denial, has failed to adduce reliable
evidence in support thereof, shall not in subsequent proceedings be permitted to
make any such denial, nor shall any question in respect of the existence of any
such public right be inquired into by any jury appointed under section 138.
140. Procedure on order being made absolute. --- (1) When an order has been made
absolute under section 136, section 137 or section 139, the Magistrate shall
give notice of the same to the person against whom the order was made, and shall
further require him to perform the act directed by the order within a time to be
fixed in the notice, and inform him that, in case of disobedience, he will be
liable to the penalty provided by section 188 of the Pakistan Penal Code.
(2) [Consequences of disobedience to order]. If such act is not performed within
a time to be fixed, the Magistrate may cause it to be performed, and may recover
the costs of performing it either by the sale of any building, goods or other
property removed by his order or by the distress and sale of any other movable
property of such person within or without the local limits of such Magistrate’s
jurisdiction. If such other property is without such limits, the order shall
authorize its attachment and sale when endorsed by the Magistrate within the
local limits of whose jurisdiction the property to be attached is found.
(3) No suit shall lie in respect of anything done in good faith under this
section.
141. Procedure on failure to appoint jury or omission to return verdict. --- If
the applicant, by neglect or otherwise, prevents the appointment of the jury, or
if from any cause by jury appointed do not return their verdict within the time
fixed or within such further time as the Magistrate may in his discretion allow,
the Magistrate may pass such order as he thinks fit, and such order shall be
executed in the manner provided by section 140.
142. Injunction pending inquiry. --- (1) If a Magistrate making an order under
section 133 considers that immediate measures should be taken to prevent
imminent danger or injury of a serious kind to the public, he may, whether a
jury is to be, or has been, appointed or not, issue such an injunction to the
persons against whom the order was made, as is required to obviate or prevent
such danger or injury pending the determination of the matter.
(2) In default of such person forthwith obeying such injunction, the Magistrate
may himself use, or cause to be used, such means as he thinks fit to obviate
such danger or to prevent such injury.
(3) No suit shall lie in respect of anything done in good faith by a Magistrate
under this section.
143. Magistrate may prohibit repetition continuance of public nuisance. --- A
1[Magistrate of the first class], may order any person not to repeat or continue
a public nuisance, as defined in the Pakistan Penal Code or any special or local
law.
CHAPTER XI
TEMPORARY ORDERS IN URGENT CASES OF
NUISANCE OR APPREHENDED DANGER
144. Power to issue order absolute at once in urgent cases of nuisance or
apprehended danger. --- (1) In cases where, in the opinion of a 1[the “Zila
Nazim†upon the written recommendations of the District Superintendent of Police
or Executive District Officer], there is sufficient ground for proceeding under
this section and immediate prevention or speedy remedy is desirable,
2[the Zila Nazim] may, by a written order stating the material facts of the case
and served in manner provided by section 134, direct any person to abstain from
a certain act or to take certain order with certain property in his possession
or under his management, if 2[the Zila Nazim] considers that such direction is
likely to prevent, or tends to prevent, obstruction, annoyance or injury, or
risk of obstruction, annoyance or injury to any person lawfully employed, or
danger for human life, health or a disturbance of the public tranquility, or a
riot, or an affray.
(2) An order under this section may, in cases of emergency or in cases where the
circumstances do not admit of the serving in due time of a notice upon the
person against whom the order is directed, be passed, ex parte.
(3) An order under this section may be directed to a particular individual, or
to the public generally when frequenting or visiting a particular place.
(4) 2[The Zila Nazim] may, either on his own motion or on the application of any
person aggrieved, remind or alter any order made under this section by himself
or by his predecessor-in-office.
(5) Where such an application is received, the 2[Zila Nazim] shall afford to the
applicant an early opportunity of appearing before his either in person or by
pleader and showing cause against the order; and, if the 2[Zila Nazim] rejects
the application wholly or in part, he shall record in writing his reasons for so
doing.
(6) No order under this section shall remain in force for more than two
1[consecutive days and not more than seven days in a month] from the making
thereof; unless, in cases of danger to human life, health or notification in the
official Gazette, otherwise directs.
2[(7) In the application of sub-sections (1) to (6) to the districts where the
local Government elections have not been held, or the Zila Nazim has not assumed
charge of office, any reference in those provisions to the Zila Nazim shall be
read as a reference to the District Coordination Officer in relation to such
districts:
Provided that this sub-section shall cease to have effect, and shall be deemed
to have been repealed, at the time when local Governments are installed in the
districts as aforesaid.]
COMMENTARY
Order passed u/s. 144 with limited duration cannot be extended indefinitely.
Extension of an order passed u/s. 144 for an indefinite period would be without
lawful authority and of no legal effect. (Minority View).1a
Action under this section is taken by the section is taken by the District
Magistrate in cases of apprehended danger. It is there are unreasonable to
expect that, in the circumstances of a case the District Magistrate should not
act in the closest and fullest consultation which the Government who are
responsible for maintenance of public orders. 1b
CHAPTER XII
DISPUTES AS TO IMMOVABLE PROPERTY
145. Procedure where dispute concerning land, etc., is likely to cause breach of
peace. --- (1) Wherever a 2[Magistrate of the first class] is satisfied from a
police report or other information that a dispute likely to cause breach of the
peace exists concerning any land or water or the boundaries thereof, within the
local limits of his jurisdiction, he shall make an order in writing, stating the
grounds of being so satisfied, and requiring the parties concerned in such
dispute to attend his Court in person or by pleader, within a time to be fixed
by such Magistrate, and to put in written statements of their respective claims
a respects the fact of actual possession of the subject of dispute.
(2) For the purposes of this section expression “land or water†includes
buildings, markets, fisheries, crops or other produce of land, and the rents or
profits of any such property.
(3) A copy of the order shall be served in manner provided by this Code for the
service of a summons upon such person or persons as the Magistrate may direct,
and at least one copy shall be published by being affixed to some conspicuous
place at or near the subject of dispute.
(4) Inquiry as to Possession. The Magistrate shall then, without reference to
the merits or the claims of any such parties to a right to possess the subject
of dispute, pursue the statements so put in, hear the parties, receive all such
evidence as may be produced by them respectively, consider the effect of such
evidence, take such further evidence (if any) as he thinks necessary, and, if
possible, decide whether any and which of the parties was at the date of the
order before mentioned in such possession of the said subject:
Provided that, if it is appear to the Magistrate that any party has within two
months next before the date of such order been forcibly and wrongfully
dispossessed, he may treat the party so dispossessed as if he had been in
possession at such date:
Provided also, that is the Magistrate considers the case one of emergency, he
may at any time attach the subject of dispute, pending his decision under this
section.
(5) Nothing in this section shall preclude any party so required to attend, or
any other person interested, from showing that no such dispute as aforesaid
exists or has existed; and in such case the Magistrate shall cancel his said
order, and all further proceedings there on shall be stayed, but, subject to
such cancellation, the order of the Magistrate under sub-section (1) shall be
final.
(6) Party in possession to retain possession until legally evicted. If the
Magistrate decides that one of the parties was or should under the first proviso
to sub-section (4) be treated as being in such possession of the said subject he
shall issue an order declaring such party to be entitled to possession thereof
until evicted therefrom in due course of law, and forbidding all disturbance of
such possession until such eviction and when he proceeds under the first proviso
to sub-section (4), may restore to possession the party forcible and wrongfully
dispossessed.
(7) When any party to any such proceedings dies, the Magistrate may cause the
legal representative of deceased party to be made a party to the proceeding and
shall thereupon continue the inquiry, and if any question arises as to who the
legal representative of a deceased party for the purpose of such proceeding is,
all persons claiming to be party shall be made parties thereto.
(8) If the Magistrate is of opinion that any crop other produce of the property,
the subject of dispute in a proceeding under this section pending before him in
subject to speedy and natural decay, he may make an order for the proper custody
or sale of such property, and, upon the completion of the inquiry, shall make
such order for the disposal of such property, or the sale-proceeds thereof as he
thinks fit.
(9) The Magistrate may, if he thinks fit, at any stage of the proceedings under
this section, on the application of either party, issue a summons to any witness
directive him to attend or to produce any document or thing.
(10) Nothing in this section shall be deemed to be in derogation of the powers
of the Magistrate to proceed under section 107.
COMMENTARY
Breach of peace. Dispute likely to cause. Magistrate. Satisfaction regarding.
Held: Jurisdiction of Magistrate under S. 145, CrPC to be dependent on his being
satisfied regarding existence of dispute likely to cause breach of peace but not
to depend on application by any party, report by police or information received
from any quarter. Source being not at all material for purposes of assuming
jurisdiction, order to be competently passed only when satisfaction be there.
Held further: Satisfaction of Magistrate being jurisdictional ground without
having any reference to any application or to particular source of information,
no party laying such information which to competently claim right in proceedings
as such of which grievance to be made that Magistrate by delaying order
prejudiced its cause.5
146. Power to attach subject of dispute. --- (1) If the Magistrate decides that
one of the parties was then in such possession, or is unable to satisfy himself
as to which of them was then in such possession of the subject of dispute, he
may attach it until a determined the rights of the parties thereto, or the
person entitled to possession thereof:
Provided that the District Magistrate or the Magistrate who has attached the
subject of dispute any withdraw the attachment at any time if he is satisfied
that there is no longer any likelihood of a breach of the peace in regard to the
subject of dispute.
(2) When the Magistrate attaches the subject of dispute, he may, if he thinks
fit and if no receiver of the property, the subject of dispute, has been
appointed by any Civil Court appoint a receiver thereof, who, subject to the
control of the Magistrate, shall have all the power of a receiver appointed
under the 1[Code of Civil Procedure, 1908]:
Provided that in the event of a receiver of the property, the subject of
dispute, being subsequently appointed by any Civil Court, possession shall be
made over to him by the receiver appointed by the Magistrate, who shall
thereupon be discharged.
COMMENTARY
Proceedings under this section could only be invoked when the Magistrate had
completed an enquiry under section 145 and recorded a finding under section
145(4) “that none of the parties was then in possession, or is unable to satisfy
himself as to which of them was then in such possession of the subject of
dispute.1a
147. Disputes concerning rights of use of immovable property, etc. --- (1)
Whenever any 2[Magistrate of the first class] is satisfied, from a police report
or other information, that dispute likely to cause a breach of the peace exists
regarding any alleged right of user of any land or water as explained in section
145, sub-section (2) (whether such rights be claimed as an casement or
otherwise,), within the local limits of his jurisdiction, he may make an order
in writing stating the grounds of his being so satisfied and requiring the
parties concerned in such dispute to attend the Court in person or by pleader
within a time to be fixed by such Magistrate and to put in written statements of
their respective claims and shall thereafter inquire into the matter in the
manner provided in section 145, and the provisions of that section shall, as far
as may be, be applicable in the case of such inquiry.
(2) If it appears to such Magistrate that such right exists, he may make an
order prohibiting any interference with the exercise of such right:
Provided that no such order shall be made where the right is exercisable at all
times of the year, unless such right has been exercised within three months next
before the institution of the inquiry, or where the right is exercisable only at
particular seasons or on particular occasions, unless the right has been
exercised during the last of such seasons or on the last of such occasions
before such institution.
(3) If it appears to such Magistrate that such right does not exist, he may make
an order prohibiting any exercise of the alleged right.
(4) An order under this section shall be subject to any subsequent decision of a
Civil Court of competent jurisdiction.
148. Local inquiry. --- (1) Whenever a local inquiry is necessary for the
purposes of this Chapter, any 1[a Sessions Judge] may depute an Magistrate
subordinate to him to make the inquiry, and may furnish him with such written
instructions as may seem necessary for his guidance, and may declare by whom the
whole or any part of the necessary expenses of the inquiry shall be paid.
(2) The report of the person so deputed may be read as evidence in the case.
(3) Order as to costs. When any costs have been incurred by any party to
proceeding under this Chapter the Magistrate passing a decision under section
145, section 146 or section 147 may direct by whom such costs shall be paid,
whether by such party or by any other party to the proceedings, and whether in
whole or in part or proportion. Such costs may include any expenses incurred in
respect of witnesses, and of pleader’s fees, which the Court may consider
reasonable.
CHAPTER XIII
PREVENTIVE ACTION OF THE POLICE
149. Police to prevent cognizable offences. --- Every police officer may
interpose for the purposes of preventing and shall, to the best of his ability
prevent, the commission of any cognizable offence.
150. Information of design to commit such offences. --- Every police officer
receiving information of a design to commit any cognizable offence, shall
communicate such information to the police officer to whom he is subordinate and
to any other officer whose duty it is to prevent or take cognizance of the
commission of any such offence.
151. Arrest to prevent such offences. --- A police officer knowing of a design
to commit any cognizable offence may arrest, without orders from a Magistrate
and without a warrant, the person so designing, if it appears to such officer
that the commission of the offence cannot be otherwise prevented.
152. Prevention of injury to public property. --- A police officer may of his
own authority interpose to prevent any injury attempted to be committed in his
view to any public property, movable or immovable, or the removal or injury of
any public landmark or buoy or other mark used for navigation.
153. Inspection of weights and measures. --- (1) Any officer-in-charge of police
station may, without a warrant, enter any place within the limits of such
station for the purpose of inspecting or searching for any weights or measures
or instruments for weighing, used or kept therein, whenever he has reason to
believe that there are in such place any weights, measures, instruments for
weighing which are false.
(2) If he finds in such place any weights, measures or instruments for weighing
which are false, he may seize the same, and shall forthwith give information for
such seizure to a Magistrate having jurisdiction.
__________
PART V
INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE
CHAPTER XIV
154. Information in cognizable cases. Every information relating to the
commission of a cognizable offence if given orally to an officer-in-charge of a
police station, shall be reduced to writing by him or under his direction, and
be read over to the information; and every such information, whether given in
writing or reduced to writing as aforesaid shall be signed by the person giving
it, and the substance thereof shall be entered in a book to be kept by such
officer in such form as the Provincial Government may prescribed in this behalf.
COMMENTARY
A report to be treated as F.I.R. must disclose at least reasonable suspicion of
commission of cognizable offence. Telephonic message recorded in police station
diary not disclosing a define commission of cognizable offence cannot be treated
as F.I.R.2a
and Constitution of Pakistan, 1973, Art. 185(3). First Information Report. Case
registered in respect of previous occurrence. Registration of fresh case, held,
not called for notwithstanding divergent version contained therein. Police not
only competent but also duty bound to unearth true facts and take real
culprit.2b
Murder. Counter-version of incident. Private complaint. Sessions Judge on a
private complaint directed the Additional Sessions Judge to hold a preliminary
inquiry and to dispose of the matter. Evidentiary value of the First Information
Report.2c
F.I.R. needs not necessarily, and in fact would seldom, contain minute
details.2d
Telephonic message recorded in police station diary not disclosing a definite
commission of cognizable offence cannot be treated as F.I.R.2e
Where the accused after committing a murder himself went to the police station
and lodged an F.I.R. that statement was inadmissible in evidence on account of
its inculpatory nature.2f
Delay in lodging F.I.R. remained unexplained but no importance can be attached
to it as the prosecution has gained nothing out of it.2g
Dying declaration treated to be F.I.R. Where the victim was brought to the
hospital soon after the occurrence and the medical Officer finding his condition
serious, recorded his statement and forwarded it to the Police, the Police
treated the said statement as the first information report.2h
While dealing with the question as to the weight to be attached to omissions or
contradictions appearing in the first information report, the fact that the
report is not lodged by an eye-witness is a very relevant circumstances.2i
COMMENTS
155. Information in non-cognizable cases. --- (1) When information is given to
an officer-in-charge of a police station of the commission within the limits of
such station of a non-cognizable offence, he shall enter in a book to be kept as
aforesaid the substance of such information and refer the informant to the
2j[Judicial Magistrate].
(2) Investigation into non-cognizable cases. No police officer shall investigate
a non-cognizable case without the order of a Magistrate of first or second class
having power to try such case 3[or send the same for trial to the Court of
Session.]
(3) Any police officer receiving such order may exercise the same powers in
respect of the investigation (except the power to arrest without warrant) as a
officer-in-charge of a police station may exercise in a cognizable case.
156. Investigation into cognizable cases. --- (1) Any officer-in-charge of a
police station may, without the order of a Magistrate, investigate any
cognizable case which a Court having jurisdiction over the local area within the
limits of such station would have power to inquire into or try under the
provisions of Chapter XV relating to the place of inquiry or trial.
(2) No proceeding of a police officer in any such case shall at any stage be
called in question on the ground that the case was one which such officer was
not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation
as above mentioned.
4-5[(4) Notwithstanding anything contained in sub-section (1), (2) or (3), no
police officer shall investigate an offence under section 497 or section 498 of
the Pakistan Penal Code, except upon a complaint made by the husband of the
woman or, in his absence, by some person who had the care of such woman on his
behalf at the time when such offence was committed.]
157. Procedure where cognizable offence suspected. --- (1) If, from information
received or otherwise, an officer-in-charge of a police station has reason to
suspect the commission of an offence which he is empowered under section 156 to
investigate, he shall forthwith send a report of the same to a Magistrate
empowered to take cognizance of such offence upon a police-report, and shall
proceed in person, or shall depute one of his subordinate officers not being
below such mark as the Provincial Government may, by general or special order,
prescribe in this behalf to proceed, to the spot, to investigate the facts and
circumstances of the case, and, if necessary, to take measures for the discovery
and arrest of the offender:
Provided as follows: ---
(a) Where local investigation dispensed with. When any information as to the
commission of any such offence is given against any person by name and the case
is not of a serious nature, the officer-in-charge of a police station need not
proceed in person or depute a subordinate officer to make an investigation on
the spot:
(b) Where police officer-in-charge sees no sufficient ground for investigation.
If it appears to the officer-in-charge of a police station that there is no
sufficient ground for entering on an investigation, he shall not investigate the
case.
(2) In each of the cases mentioned in clauses (a) and (b) of the proviso to
sub-section (1), the officer-in-charge of the police station shall state in his
said report his reasons for not fully complying with the requirements of that
sub-section, and, in the case mentioned in clause (b), such officer shall also
forthwith notify to the informant, if any, in such manner as may as may be
prescribed by the Provincial Government, the fact that he will not investigate
the case or cause it to be investigated.
158. Reports under section 157 how submitted. --- (1) Every report sent to a
Magistrate under section 157 shall, if the Provincial Government so directs, be
submitted through such superior officer of police as the Provincial Government,
by general or special order appoint in that behalf.
(2) Such superior officer may give such instructions to the officer-in-charge of
the police station as he thinks fit, and shall, after recording such
instructions on such report, transmit the same without delay to the Magistrate.
159. Power to hold investigation of preliminary inquiry. --- Such Magistrate, on
receiving such report, may direct an investigation or, if he thinks fit, at once
proceed, or depute any Magistrate subordinate to him to proceed, to hold a
preliminary inquiry into, or otherwise to dispose of, the case in manner
provided in this Code.
160. Police officer’s power to require attendance of witnesses. --- Any police
officer making an investigation under this Chapter may, by order in writing,
require the attendance before himself of any person being within the limits of
his own or any adjoining station who, from the information given or otherwise,
appears to be acquainted with the circumstances of the case; and such person
shall attend as so required.
161. Examination of witnesses by police. --- (1) Any police officer making an
investigation under this Chapter or any police officer not below such rank as
the Provincial Government may, by general or special order, prescribed in this
behalf, acting on the requisition of such officer may examine orally any person
supposed to be acquainted with the facts and circumstances of the case.
(2) Such person shall be bound to answer all questions relating to such case put
to him by such officer, other than questions the answers to which would have a
tendency to expose him to a criminal charge or to a penalty or forfeiture.
(3) The police officer may reduce into writing any statement made to him in the
course of an examination, under this section, and if he does so he shall make a
separate record of the statement, of each such person whose statement he
records.
COMMENTARY
Dying declaration. Statements which are faithful reproduction of FIR or 161,
Cr.P.C. statements, cannot be regarded as dying declarations of unimpeachable
quality which could be relied upon in a case of capital charge.5a
A statement recorded by the Police under this section cannot be utilized as
substantive evidence. It can only be utilized under section 162 of the Code to
contradict such witness in the manner provided by section 145 of the Evidence
Act, 1872, When a witness is so contradicted by a statement recorded by the
Police in the course of investigation the only effect that it can have is to
reduce the evidentiary value of his testimony in Court and make the witness
unreliable on the point on which he is contradicted. 5b
162. Statements to police not to be signed: Use of such statement in evidence.
--- (1) No statement made by any person to a police officer in the course of an
investigation under this Chapter shall, if reduced into writing, be signed by
the person making it; nor shall any such statement or any record thereof,
whether in a police-diary or otherwise or any part of such statement or record,
be used for any purpose (save as hereinafter provided) at any inquiry or trial
in respect of any offence under investigation at the time when such statement
was made;
Provided that, when any witness is called for the prosecution in such inquiry or
trial whose statement has been reduced into writing as aforesaid, the Court
shall on the request of the accused be furnished with a copy thereof, in order
that any part of such statement, if duly proved, may be used to contradict such
witness in the manner provided by Section 145 of the Evidence Act, 1872. When
any part of such statement is so used, any part thereof may also be used in the
re-examination of such witness, but for the purpose only of explaining any
matter referred to in his cross-examination:
Provided further that, if the Court is of opinion that any part of any such
statement is not relevant to the subject-matter of the inquiry or trial or that
is disclosure to the accused is not essential in the interests of justice and is
inexpedient in public interests, it shall record such opinion (but not the
reasons therefore) and shall exclude such part from the copy of statement
furnished to the accused.
(2) Nothing in section shall be deemed to apply to any statement falling within
the provision of section 32, clause (1), of the Evidence Act, 1872 6[or to
affect the provisions of section 27 of that Act.]
COMMENTARY
This section is merely an application of the general rule against hearsay, and
if such evidence of identification is not excluded by that section, the act of
identification being “An act of the mind†and not a statement of the kind
contemplated by that section and the implied statement in the act of
identification and the accompanying words “that is the man†being merely
explanatory of the act. Thus, if the person robbed while giving evidence, after
deposing in Court that it was the prisoner who robbed him goes on to state that
he recognized the prisoner at a police “line up†it would be impossible to
contend that he is deposing to any statement, and if such an implied statement
by him is not hit by section 162. I do not see why other witnesses who saw the
act of identification of the prisoner. What section 162 excludes is a statement
made to a police officer and for the purposes of that section an act is not a
statement, even where it contains an implied statement and acquits its
significance only by such statement.6a
163. No inducement to be offered. --- (1) No police officer or other person in
authority shall offer or make, or cause to be offered or made, any such
inducement threat or promise as is mentioned in the Evidence Act, 1872, section
24.
(2) But no officer or other person shall prevent, by any caution or otherwise
any person from making in the course of any investigation under this Chapter any
statement which he may be disposed to make of his own free will.
164. Power to record statement and confessions. --- (1) Any Magistrate of the
first class and any Magistrate of the second class specially empowered in this
behalf by the Provincial Government may, if he is not a police officer, record
any statement of confession made to him in the course of an investigation under
this Chapter or at any time afterwards before the commencement of the inquiry or
trial.
7[(1-A) Any such statements may be recorded by such Magistrate in the presence
of the accused, and the accused given an opportunity of cross-examining the
witness making the statement.]
(2) Such statements shall be recorded in such of the manners hereinafter
prescribed for recording evidence as is, in his opinion, best fitted for the
circumstances of the case. Such confessions shall be recorded and signed in the
manner provided in section 364, and statements or confessions shall then be
forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) A Magistrate shall, before recording any such confession, explain to the
person making it that he is not bound to make a confession and that if he does
so it may be used as evidence against him and no Magistrate shall record any
such confession unless, questioning the person making it, he has reason to
believe that it was made voluntarily; and, when he records any confession, he
shall make a memorandum at the foot such record to the following effect: ---
I have explained to (name) that he is not bound to make a confession and that,
if he does so, any confession he may make may be sued as evidence against him
and I believe that this confession was voluntarily made. It was taken in my
presence and hearing, and was read over to the person making it and admitted by
him to be correct, and it contains a full and true account of the statement made
by him.
(Signed) A.B.,
Magistrate
Explanation. It is not necessary that the Magistrate receiving and recording a
confession or statement should be a Magistrate having jurisdiction in the case.
COMMENTARY
Judicial confessions, evidentiary value of. Unless Magistrate is held to have
tampered with the recorded confessions, delay simpliciter in forwarding the same
by him to Deputy Commissioner would not affect the evidentiary value of the
confessions.7a
Complainant normally is not examined under S. 164, Cr.P.C. and only other
witnesses are examined thereunder. However, if need be further statement of the
complainant can be recorded.7b
Retracted confessions, whether judicial or extra-judicial could legally be taken
into consideration against the maker of these confessions himself, and if the
confessions were found to be true and voluntary, then there was no need at all
to look for further corroboration. As against the maker himself his confession,
judicial or extra-judicial, whether retracted or not retracted, can in law
validly form the sole basis of his conviction if the Court is satisfied and
believes that it was true and voluntary and was not obtained by torture or
coercion or inducement. The question, however as to whether in the facts and
circumstances of a given case the Court should act upon such a confession alone
is an entirely different question, which relates to the weight and evidentiary
value of the confession and not to its admissibility in law.7c
165. Search by police officer. --- (1) Whenever an officer-in-charge of a police
station or a police officer making an investigation has reasonable grounds for
believing that anything necessary for the purpose of an investigation into any
offence which he is authorized to investigate may be found in any place within
the limits of the police station of which he is Incharge, or to which he is
attached and that such thing cannot in his opinion be otherwise obtained without
undue delay, such officer may, after recording in writing the grounds of his
belief and specifying in such writing, so far as possible, the thing for which
search is to be made, search or cause search to be made, for such thing in any
place within the limits of such station:
[Provided that no such officer shall search, to be made, for anything which is
in the custody of any bank or banker as defined in the Bankers Book’s Evidence
Act, 1891 (XVIII of 1891), and relates, or might disclose any information which
relates, to the bank account of any person except: -
(a) for the purpose of investigating an offence under sections 403, 406, and 409
and section 421 to 424 (both inclusive) and section 465 to 477-A (both
inclusive) of the Pakistan Penal Code, with the prior permission in writing of a
Sessions Judge; and
(b) in other cases, with the prior permission in writing of the High Court.]
(2) A police officer proceeding under sub-section (1) shall, if practicable,
conduct the search in person.
(3) If he is unable to conduct the search in person, and there is no other
person competent to make the search present at the time, he may after recording
in writing his reasons for so doing require any officer subordinate to him to
make the search, and he shall deliver to such subordinate officer an order in
writing specifying the place to be searched, and, so far as possible, the thing
for which search is to be made; and such subordinate officer may thereupon
search for such thing in such place.
(4) The provisions of this Code as to search warrants and the general provisions
as to searches contained in section 102 and section 103, shall so far as may be,
apply to a search made under this section.
(5) Copies of any record made under sub-section (1) or sub-section (3) shall
forthwith be sent to be nearest Magistrate empowered to take cognizance of the
offence and the owner or occupier of the place searched shall on application be
furnished with a copy of the same by the Magistrate;
Provided that he shall pay for the same unless the Magistrate for some special
reason thinks fit to furnish it free of cost.
Punjab Amendment Ordinance X of 1972. In the said Code, in section 165, for
proviso to sub-section (1), the following proviso, shall be substituted namely:
--
“Provided that no such officer shall search, or cause a search to be made, for
anything which is in the custody of a bank or a banker as defined in the Bankers
Book Evidence Act, 1891 (XVIII of 1891) and relates, or might disclose any
information which relates, to the bank account of any person except with the
prior permission in writing of the High Court or the Session Judge within whose
jurisdiction such bank or banker, as the case may be, is situated or carries on
business.â€
166. When officer-in-charge of police station may require another to issue
search warrant. --- (1) An officer-in-charge of a police station or police
officer not being below the rank of Sub-Inspector making an investigation may
require an officer-in-charge of another police station, whether in the same or a
different district, to cause a search to be made in any place, in any case in
which the former might cause such search to be made, within the limits of his
own station.
(2) Such officer, on being so required, shall proceed according to the
provisions of section 165, and shall forward the thing found, if any, to the
officer at whose request the search was made.
(3) Whenever there is reason to believe that the delay occasioned by requiring
an officer-in-charge of another police station to be made under sub-section (1)
might result in evidence of the commission of an offence being concealed or
destroyed, it shall be lawful for an officer-in-charge of a police station or a
police officer making an investigation under this Chapter to search, or caused
to be searched, any place in the limits of another police station, in accordance
with the provisions of Section 165, as if such place were within the limits of
his own station.
(4) Any officer conducting a search under sub-section (3) shall forthwith send
notice of the search to the officer-in-charge of the police station within the
limits of which such place in situate, and shall also send with such notice a
copy of the list (if any) prepared under section 103 and shall also send to the
nearest Magistrate empowered to take cognizance of the offence, copies of the
records referred to in section 165, sub-sections (1) and (3).
(5) The owner or occupier of the place searched shall, on application, be
furnished with a copy of any record sent to the Magistrate under sub-section
(4);
Provided that he shall pay for the same unless the Magistrate for some special
reason thinks fit to furnish it free of cost.
167. Procedure when investigation cannot be completed in twenty-four hours. ---
(1) Whenever any person is arrested and detained in custody, and it appears that
the investigation cannot be completed within the period of twenty-four hours
fixed by section 61, and there are grounds for believing that the accusation or
information is well-founded, the officer-in-charge of the police station or the
police officer making the investigation if he is not below the rank of
sub-inspector shall forthwith transmit to the 8[nearest Judicial Magistrate] a
copy of the entries in the diary hereinafter prescribed relating to the case,
and shall at the same time forward the accused to such Magistrate.
[Explanation Omitted by Ordinance No. XXXVII of 2001 dated 13/8/2001]
(2) The Magistrate to whom an accused person is forwarded under this section
may, whether he has or has not jurisdiction to try the case from time to time
authorize the detention of the accused in such custody as such Magistrate thinks
fit, for a term not exceeding fifteen days in the whole. If he has not
jurisdiction to try the case or 1[send] it for trial, and considers further
detention unnecessary, he may order the accused to be forwarded to a Magistrate
having such jurisdiction:
Provided that no Magistrate of the third class, and no Magistrate of the second
class not specially empowered in this behalf by the Provincial Government shall
authorize detention in the custody of the police.
(3) A Magistrate authorizing under this section detention in the custody of the
police shall recorded his reasons for so doing.
2[(4) The Magistrate giving such order shall forward a copy of his order with
his reasons for making it, to the Sessions Judge.]
3[(5) Notwithstanding anything contained in sections 60 and 61 or hereinbefore
to the contrary, where the accused forwarded under sub-section (2) is a female,
the Magistrate shall not, except in the cases involving qatl or dacoity
supported by reasons to be recorded in writing, authorize the detention of the
accused in police custody, and the police officer making an investigation shall
interrogate the accused referred to in sub-section (1) in the person in the
presence of an officer of jail and a female police officer.
(6) The officer-in-charge of the prison shall make appropriate arrangements for
the admission of the investigating police officer into the prison for the
purpose of interrogating the accused.
(7) If for the purpose of investigation, it is necessary that the accused
referred to in sub-section (1) be taken out of the prison, the officer Incharge
of the police station or the police officer making investigation, not below the
rank of Sub-Inspector, shall apply to the Magistrate in the behalf and the
Magistrate may, for the reasons to be recorded in writing, permit taking of
accused out of the prison in the company of a female police officer appointed by
the Magistrate:
Provided that the accused shall not be kept out of the prison while in the
custody of the police between sunset and sunrise.]
168. Report of investigation by subordinate police officer. --- When any
subordinate police officer has made any investigation under this Chapter, he
shall report the result of such investigation to the officer-in-charge of police
station.
169. Release of accused when evidence deficient. --- If, upon an investigation
under this Chapter, it appears to the officer-in-charge of the police station,
or to the police officer making the investigation that there is not sufficient
evidence or reasonable ground of suspicion to justify the forwarding of the
accused to a Magistrate, such officer shall, if such person is in custody,
release him on his executing a bond, with or without sureties, as such officer
may direct, to appear, if and when so required, before a Magistrate empowered to
take cognizance of the offence on a police-report and to try the accused or
3[send] him for trial.
170. Case to be sent to Magistrate when evidence is sufficient. --- (1) If, upon
an investigation under this Chapter, it appears to the officer-in-charge of the
police station that there is sufficient evidence or reasonable ground as
aforesaid, such officer shall forward the accused under custody to a Magistrate
empowered to take cognizance of the offence upon a police report and to try the
accused or 4[send] him for trial or, if the offence is bailable and the accused
is able to give security, shall take security from him for his appearance before
such Magistrate on a day fixed and for his attendance from day to day before
such Magistrate until otherwise directed.
(2) When the officer-in-charge of police station forwards an accused person to a
Magistrate or takes security for his appearance before such Magistrate under
this section, he shall send to such Magistrate any weapon or other article which
it may be necessary to produce before him, and shall require the complainant (if
any) and so many of the persons who appear to such officer to be acquainted with
the circumstances of the case as he may thinks necessary to execute a bond to
appear before the Magistrate as thereby directed and prosecute or give evidence
(as the case may be) in the matter of the charge against the accused.
(3) [Omitted by Ordinance XII of 1972].
(4) [Omitted by Amdt. Act II of 1926].
(5) The officer in whose presence the bond is executed shall deliver a copy
thereof to one of the persons who executed it, and shall then send to the
Magistrate the original with his report.
171. Complainants and witnesses not to be required to accompany police officer:
Complainants and witnesses not to be subjected to restraint: Recusant
complainant or witness may be forwarded in custody. --- No complainant or
witness on his way to the Court of the Magistrate shall be required to accompany
a police officer,
or shall be subjected to unnecessary restraint or inconvenience, or required to
give any security for his appearance other than his own bond:
Provided that, if any complainant or witness refuses to attend or to execute a
bond as directed in section 170, the officer-in-charge of the police station may
forward him in custody to the Magistrate, who may detain him in custody until he
executes such bond, or until the hearing of the case is completed.
172. Diary of proceedings in investigation. --- (1) Every police officer making
an investigation under this Chapter shall day by day enter his proceedings in
the investigation in a diary, setting forth the time at which the information
reached him, the time at which he began and closed his investigation, the place
or places visited by him, and a statement of the circumstances ascertained
through his investigation.
(2) Any Criminal Court may send for the police-diaries of a case under inquiry
or trial such Court, and may use such diaries not as evidence in the case, but
to aid it in such inquiry or trial. Neither the accused nor his agents shall be
entitled to call or for such diaries, nor shall he or they be entitled to see
them merely because they are referred to be the Court; but, if they are used by
the police-officer who made them, to refresh his memory, or if the Court uses
them for the purpose of contradicting such police officer the provisions of the
Evidence Act, 1872, section 161 or section 145, as the case may be, shall apply.
173. Report of police officer. --- (1) Every investigation under this Chapter
shall be completed without unnecessary delay, and, as soon as it is completed,
the officer-in-charge of the police station shall 5[through the public
prosecutor]--
(a) forward to a Magistrate empowered to take cognizance of the offence on a
police report, in the form prescribed by the Provincial Government setting forth
the names of the parties, the nature of the information and the names of the
persons who appear to be acquainted with the circumstances of the case, and
stating whether the accused (if arrested) has been forwarded in custody or has
been released on his bond, ad, if so, whether with or without sureties, and
(b) communicate, in such manner as may be prescribed by the Provincial
Government, the action taken by him to the person, if any, by whom the
information relating to the commission of the officer was first given:
6[Provided that, where investigation is not completed within a period of
fourteen days from the date of recording of the first information report under
section 154, the officer-in-charge of the police station shall, within three
days of the expiration of such period, forward to the Magistrate through the
Public Procedure, an interim report in the form prescribed by the Provincial
Government stating therein the result of the investigation made until then and
the Court shall commerce the trial on the basis of such interim report, unless,
for reasons to be recorded, the Court decides that the trial should not so
commence.]
(2) Where a superior officer of police has been appointed under section 158, the
report shall, in any case in which the Provincial Government by general or
special order so directs, be submitted through that officer, and he may pending
the orders of the Magistrate, direct the officer-in-charge of the police station
to make further investigation.
(3) Whenever it appears from a report forwarded under this section that the
accused has been released on his bond, the Magistrate shall make such order for
the discharge of such bond or otherwise as he thinks fit.
(4) A copy of any report forwarded under this section shall, on application, be
furnished to the accused before the commencement of the inquiry or trial:
Provided that the same shall be paid for unless the Magistrate for some special
reason thinks fit to furnish it free of cost.
1[(5) Where the officer-in-charge of a police-station forwards a report under
sub-section (1), he shall alongwith the report the procedure the witnesses in
the case, except the public servants, and the Magistrate shall bind such
witnesses for appearance before him or some other Court on the date fixed for
trial.]
COMMENTARY
Report of police officer under S. 173, Cr.P.C. is merely an information of the
police officer and the same is not admissible in evidence. Presumption of
innocence of accused involved in such report is not diminished by mere fact that
the case has been sent up for trial or the particular witness of person had
formed opinion against the accused.6a
174. Police to inquire on suicide, etc. --- (1) The officer-in-charge of a
Police Station or some other police officer specially empowered by the
Provincial Government in that behalf on receiving information that a person ---
(a) has committed suicide, or
(b) has been killed by another, or by an animal, or by machinery or by an
accident, or
(c) has died under circumstances raising a reasonable suspicion that some other
person has committed an offence.
shall immediately give intimation thereof to the nearest Magistrate empowered to
hold inquests and, unless otherwise directed by any rule prescribed by the
Provincial Government 2[***], shall proceed to the place where the body of such
deceased person is, and there, in the presence of two or more respectable
inhabitants of the neighbourhood, shall make an investigation, and draw up a
report of the apparent cause of death, describing such wounds, fractures,
bruises and other marks of injury as may be found on the body, and stating in
what manner or by what weapon or instrument (if any), such marks appear to have
been inflicted.
(2) The report shall be signed by such police officer and other persons, or by
so many of them as concur therein, and shall be forthwith forwarded to the
1[concerned Magistrate].
(3) When there is any doubt regarding the cause of death, or when for any other
reason the police officer considers it expedient so to do, he shall, subject to
such rules as the Provincial Government may prescribe in this behalf, forward
the body, with a view to its being examined, to the nearest Civil Surgeon, or
other qualified medical man appointed in this behalf by the Provincial
Government if the state of the whether and the distance admit of its being so
forwarded without risk of such putrefaction on the road as would render such
examination unless.
(4) [Omitted by A.O., 1949]
(5) The 2[Magistrate of the first class] are empowered to hold inquests.]
COMMENTARY
The omission in relevant column of inquest report is of no consequences in view
of crime empties having been found not near dead body but twenty feet away.2a
“3174A. Grievous injury by burns:- (1) Where a person, grievously injured by
burns through fire, kerosene oil, acid, chemical or by any other way, is brought
to a Medical Officer on duty designated by the Provincial Government for this
purpose or, such incident is reported to the Officer-in-Charge of a Police
Station, such Medical Officer on duty, or, as the case may be, Officer in Charge
of a Police Station, shall immediately give intimation thereof to the nearest
Magistrate. Simultaneously, the Medical Officer on duty shall record the
statement of the injured person immediately on arrival so as to ascertain the
circumstances and cause of the burn injuries. The statement shall also be
recorded by the Magistrate in case the injured person is still in a position to
make the statement.
(2) The Medical Officer on duty, or, as to the case may be, the Magistrate,
before recording the statement under sub-section (1) shall satisfy himself that
the injured person is not under any threat or duress The statement so recorded
shall be forwarded to the Session Judge and also to the District Superintendent
of Police and Officer-in-Charge of the Police Station, for such action as may be
necessary under this Code.
(3) If the injured person is unable, for any reason, to make the statement
before the Magistrate, his statement recorded by the Medical Officer on duty
under sub-section (1) shall be sent in scaled cover to the Magistrate or the
trial court if it is other than the Magistrate and may be accepted in evidence
as a dying declaration if the injured person expires.â€
175. Power to summons person. --- (1) A police officer proceeding under section
174 may, by order in writing, summon two or more persons as aforesaid for the
purpose of the said investigation, and any other person who appears to be
acquainted with the fact of the case. Every person summoned shall be bound to
attend and to answer truly all question other than questions the answers to
which would have a tendency to expose him to a criminal charge, or to a penalty
or forfeiture.
(2) If the facts do not disclose a cognizable offence to which section 170
applies, such persons shall not be required by the police officer to attend a
Magistrate’s Court.
176. Inquiry by Magistrate into cause of death. --- (1) When any person dies
while in the custody of the police, the nearest Magistrate empowered to hold
inquests shall, and, in any other case mentioned in section 174, clauses (a),
(b) and (c) of sub-section (1), any Magistrate so empowered may hold an inquiry
into the cause of death either instead of, or in addition to, the investigation
held by the Police officer, and if he does so, he shall have all the powers in
conducting it which he would have in holding an inquiring into an offence. The
Magistrate holding such an inquiry shall record the evidence taken by him in
connection therewith in any of the manners hereinafter prescribed according to
the circumstances of the case.
(2) Power to disinter corpses. Whenever such Magistrate considers it expedient
to make an examination of the dead body of any person who has been already
interred, in order to discover the cause of his death, the Magistrate may cause
the body to be disinterred and examined.
____________
PART VI
PROCEEDINGS IN PROSECUTIONS
CHAPTER XV
OF THE JURISDICTION OF THE CRIMINAL COURTS
IN INQUIRES AND TRIALS
A. --- Place of Inquiry or Trial
177. Ordinary place of inquiry and trial. --- Every offence shall ordinarily be
inquired into and tried by a Court within the local limits of whose jurisdiction
it was committed.
178. Power to order cases to be tried in different sessions divisions. ---
Notwithstanding anything contained in section 177, the Provincial Government may
direct that any cases 2[in any district sent for trial to a Court of Session may
be tried in any sessions division:]
2[Provided that such direction is not repugnant to any direction previously
issued by the High Court under section 526 of this Code or any other law for the
time being in force.]
179. Accused triable in district where act is done or where consequence ensures.
--- When a person is accused of the commission of any offence by reason of
anything which had been done, and no any consequence which he ensured, such
offence may be inquired into or tried by a Court within the limits of whose
jurisdiction any such thing has been done, or any such consequence has ensured.
Illustration
(a) A is wounded within the local limits of the jurisdiction of Court X, and
dies within the local limits of the jurisdiction of Court Z. The offence of the
culpable homicide of A may be inquired into or tried by X or Z.
(b) A is wounded within the local limits of the jurisdiction of Court X, and is,
during ten days within the local limits of the jurisdiction of Court Y, and
during ten days more within the local limits of the jurisdiction of Court Z,
unable in the local limits of the jurisdiction of either Court Y, or Court Z, to
follow his ordinary pursuits. The offence of causing grievous hurt to A may be
inquired into or tried by X, Y or Z.
(c) A is put in fear of injury within local limits of jurisdiction of Court X,
and is thereby induced, within the local limits of the jurisdiction of Court Y,
to deliver property to the person who put him in fear the offence of extortion
committed on A may be inquired into or tried either by X or Y.
(d) A is wounded in the State of Junagadh, and dies of his wounds in Karachi.
The offence of causing A’s death may be inquired into and tried in Karachi.
180. Place of trial where act is offence by reason of relation to other offence.
--- When an act is an offence by reason of its relation to any other act which
is also an offence or which would be an offence if the does were capable of
committing an offence, a charge of the first-mentioned offence may be inquired
into or tried by a Court within the local limits of whose jurisdiction either
act was done.
Illustrations.
(a) A charge of abatement may be inquired into or tried either by the Court
within the local limits of whose jurisdiction the abatement was committed, or by
the Court within the local limits of whose jurisdiction the offence abetted was
committed.
(b) A charge of receiving or retaining stolen goods may be inquired into or
tried either by the Court within the local limits of whose jurisdiction the
goods were at any time dishonestly received or retained.
(c) A charge of wrongful concealing a person known to have been kidnapped may be
inquired into or tried by the Court within the local limits of whose
jurisdiction the wrongful concealing, or by the Court within the local limits of
whose jurisdiction the kidnapping, took place.
181. Being a thug or belonging to a gang of dacoits, escape from custody, etc.
--- (1) The offence of being a thug, of being a thug and committing murder, of
dacoity, of dacoity with murder, of having belonged to a gang of dacoits, or of
having escaped from custody, may be inquired into or tried by a Court within the
local limits of whose jurisdiction the person charged is.
(2) Criminal misappropriation and criminal breach of trust. The offence of
criminal misappropriation or of criminal breach of trust may be inquired into or
tried by a Court within the local limits of whose jurisdiction any part of the
property which is the subject of the offence was received or retained by the
accused person, or the offence was committed.
(3) Theft. The offence of theft, or any offence which includes theft or the
possession of stolen property, may be inquired into or tried by a Court within
the local limits of whose jurisdiction such offence was committed or the
property stolen was possessed by thief or by any person who received or retained
the same knowing or having reason to believe it to be stolen.
(4) Kidnapping and abduction. The offence of kidnapping or abduction may be
inquired into or tried by a Court within the local limits of whose jurisdiction
the person kidnapped or abducted was abducted was kidnapping or abducted or was
conveyed or concluded or detained.
182. Place of inquiry or trial where scene of offence is uncertain or not in one
district only or where offence is continuing or consists of several acts. ---
When it is uncertain in which of several local areas on offence was committed,
or
when an offence is committed partly in one local area and partly in another, or
where an offence is a continuing one, and continues to be committed in more
local areas than, one, or
where it consists of several acts done in different local areas,
it may be inquired into or tried by a Court having jurisdiction over any of such
local areas.
183. Offence committed on a journey. --- An offence committed whilst the
offender is in the course of performing a journey or voyage may be inquired into
or tried by a Court through or into the local limits of whose jurisdiction the
offender, or the person against whom or the thing in respect of which, the
offence was committed, passed in the course of that journey or voyage.
184. [Offences against Railway, Telegraph, Post Office and Arms Acts.] Rep. By
the Federal Laws (Revision and Declaration) Act, 1951 (XXVI of 1951), S. 3. and
Second Schedule.
185. High Court to decide, in case of doubt, district where inquiry or trial
shall take place. --- (1) Whenever a question arises as to which of two or more
Courts subordinate to the same High Court ought to inquire into or try offence,
it shall be decided by that High Court.
(2) Where two or more Courts not subordinate to the same High Court have taken
cognizance of the same offence, the High Court within the local limits of whose
appellate criminal jurisdiction the proceedings were first commenced may direct
the trial of such offender to be held in any Court subordinate to it, and if it
so decides all other proceedings against such person in respect of such offence
shall be discontinued. If such High Court, upon the matter having been brought
to its notice, does not so decide any other High Court, within the local limits
of whose appellate criminal jurisdiction such proceedings are pending may give a
like direction, and upon its so doing all other such proceedings shall be
discontinued.
186. Power to issue summons or warrant for offence committed beyond local
jurisdiction. --- (1) When 1[a Magistrate of the first class specially empowered
in this behalf by the Provincial Government, on the recommendation of the High
Court] sees reason to believe that any person within the local limits of his
jurisdiction has committed without such limits (whether within or without
Pakistan) an offence which cannot, under the provisions of Section 177 to 184
(both inclusive), or any other law for the time being in force be inquired into
or tried within such local limits, but is under some law for the time being in
force triable in Pakistan such Magistrate may inquire into the offence as if it
had been committed within such local limits and compel such person in manner
hereinbefore provided to appear before him, and send such person to Magistrate
having jurisdiction to inquire into or try such offence, or, if such offence is
bailable, take a bond with or without sureties for his appearance before such
Magistrate.
(2) When there are more Magistrates than one having such jurisdiction and
Magistrate acting under the section cannot satisfy himself as to the Magistrate
to or before whom such person should be sent or bound to appear, the case, shall
be reported for the orders of the High Court.
187. Procedure where warrant issued by subordinate Magistrate. (1) If the person
has been arrested under a warrant issued under section 186 2[the Magistrate
issuing the warrant shall send the arrested person to the Sessions Judge] to
whom he is subordinate, unless the Magistrate having jurisdiction to inquire
into or try such offence issues his warrant for the arrest of such person, in
which case, the person arrested shall be delivered to the police officer
executing such warrant or shall be sent to the Magistrate by whom such warrant
was issued.
(2) If the offence which the person arrested is alleged or suspected to have
committed is one which may by inquired into or tried by any Criminal Court in
the same district other than that of the Magistrate acting under section 186,
such Magistrate shall send such person to such Court.
188. Liability for offences committed outside Pakistan. --- When a citizen of
Pakistan commits an offence at any place without and beyond the limits of
Pakistan, or
when a servant of the State (whether a citizen of Pakistan or not) commits an
offence in 4[a tribal area,] or
when any person commits an offence on any ship or aircraft registered in
Pakistan wherever it may be,
he may be dealt with in respect of such offence as if it had been committed at
any place within Pakistan at which he may be found:
Political Agents to certify fitness of inquiry into charge. Provided that
notwithstanding anything in any of the proceeding sections of this Chapter no
charge as to any such offence shall be inquired into in Pakistan unless the
Political Agent, if there is one, for the territory in which the offence is
alleged to have been committed, certifies that, in his opinion, the charge,
ought to be inquired into in Pakistan; and, where there is no Political Agent,
the sanction of Federal Government shall be required:
Provided also, that any proceedings taken against any person under this section
which would be a bar to subsequent proceedings against such person for the same
offence if such offence had been committed in Pakistan shall be bar to further
proceedings against him under the 3[Extradition Act, 1972 (XXI of 1972)] in
respect of the same offence in any territory beyond the limits of Pakistan.
189. Power to direct copies of depositions and exhibits to be received in
evidence. --- Whenever any such offence as is referred to in section 188 is
being inquired into or tired, the Provincial Government may, if it thinks fit,
direct that copies of depositions made or exhibits produced before the Political
Agent of a judicial officer in or for the territory in which such offence is
alleged to have been committed shall be received as evidence by the Court
holding such inquiry or trial in any case in which such Court might issue a
commission for taking evidence as to the matters to which such depositions or
exhibits relate.
B – Conditions requisite for initiation of proceedings.
190. Cognizance of offences by Magistrate. --- 7[(1) All Magistrates of the
first class or any other Magistrate specially empowered by the Provincial
Government on the recommendation of the High Court, may take cognizance of any
offence:-
(a) upon receiving a complaint of facts which constitute such offence;
(b) upon report in writing of such facts made by any police officer;
(c) upon information received from any person other than a police officer, or
upon his own knowledge or suspicion that such offence has been committed which
he may try or send to the Court of Session for trial.â€;]
8[(2) A Magistrate taking cognizance under sub-section (1) of an offence triable
exclusively by a Court of Session shall, without recording any evidence, 3[send
the case the case to Court of Session for trial.]
COMMENTARY
The accused were discharged on withdrawal of the complaint by the prosecution
and a fresh complaint was filed after sometime. It was held that although the
accusations against the appellant in the fresh complaints are the same as in the
earlier complaints. In fact, the complaints made for the second time are new
complaints.
as amended by Law Reforms Ordinance, 1972. Scope. Magistrate though not required
to hold ‘inquiry’ but not to act as post office and automatically ‘send’ case
for trial to Court of Session. On having taken cognizance of a matter Magistrate
has to apply mind to material placed before him to determine if allegations make
out a prima facie case triable exclusively by a Court of Sessions. After repeal
of provisions qua commitment proceedings such application of mind and enquiring
into relevant material would constitute an ‘inquiry’ as defined in S. 4(k) and
used to S. 344 (1), Criminal P.C. (1898).8a
Cognizance of offence. Cognizance, meaning of. Held: Word “Cognizance†not
merely to mean preparation to deal with matter without application of one’s
mind. Held further : Magistrate to be duty bound to apply mind of facts of case
in order to determine whether case be exclusively triable by Sessions Judge or
by another Court also.8b
9[191. Transfer on application of the accused. --- When a Magistrate takes
cognizance of an offence under sub-section (1), clause (c), of the preceding
section, the accused shall, before any evidence is taken, be informed that he is
entitled to have the case tried by another Court, and, if the accused, or any of
the accused if there be more than one, objects to being tried by such
Magistrate, the case shall, instead of being tried by such Magistrate, be sent
10[***] to the Sessions Judge, 10[***] for transfer to another Magistrate.]
192. Transfer of cases by Magistrates. --- 4[(1) A 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, any such
Magistrate may dispose of the case accordingly,]
193. Cognizance of offences by Courts of Sessions. (1) Except as otherwise
expressly provided by this Code or by any other law for the time being in force,
no Court of Session shall take cognizance of any offence as a Court of original
jurisdiction 5[unless the case has been sent to it under section 190, sub
section 5a[(2).]
(2) Additional Sessions Judges and Assistant Sessions Judges shall by such cases
only as the Provincial Government by general or special order may direct them to
try, or as the Sessions Judge of the division, by general or special order, may
make over to them for trial.
194. Cognizance of offences by High Court. The High Court may take cognizance of
ark offence 6[***] in manner hereinafter provided.
7[Nothing herein contained shall be deemed to affect the provisions of any
Letters Patent or Order by which a High Court is constituted or continued, or
any other provisions of this Code.]
(2) [Omitted by Ordinance XXVII of 1981].
195. Prosecution for contempt of lawful authority of public servants:
Prosecution for certain offences against public justice: Prosecution for certain
offences relating to documents given in evidence. (1) No Court shall take
cognizance:
(a) of any offence publishable under sections 172 to 188 of the Pakistan Penal
Code, except on the complaint in writing of the public servant concerned or of
some other public servant to whom he is subordinate,
(b) of any offence punishable under any of the following sections of the same
Code namely, sections 193, 194, 195, 196, 199, 200, 205, 206, 207, 208, 209,
210, 211 and 228, when such offence is alleged to have been committed in, or in
relation to, any proceeding in any Court, except on the complaint in writing of
such Court or of some other Court to which such Court is subordinate; or
(c) of any offence described in section 463 or punishable under section 471,
section 475 or section 476 of the same Code, when such offence is alleged to
have been committed by a party to any proceeding i.e. any Court in respect of a
document produced or given in evidence in such proceeding, except on the
complaint in writing of such Court. or of some other Court to which such Court
is subordinate.
(2) 1n clauses (b) and (e) of the sub section (1), the term "Court"
includes a Civil, Revenue or Criminal Court, but does not include a Registrar or
Sub Registrar under the 4[Registration Act, 1908.]
(3) For the purposes of this section, a Court shall be deemed to be subordinate
to the Court to which appeals ordinarily lie from the appealable decrees or
sentences of such former Court, or in the case of a Civil Court from whose
decree no appeal ordinarily lies to the principal Court having ordinary original
civil jurisdiction within the local limits of whose jurisdiction such Civil
Court is Situate:
Provided that:
(a) where appeals lie to more than one Court, the Appellate Court of inferior
jurisdiction shall be the Court to which such Court shall be deemed to be
subordinate; and
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall
be deemed to be subordinate to the Civil or Revenue Court according to the
nature of the case or proceedings in connection with which the offence is
alleged to have been committed.
(4) The provisions of sub section (1), with reference to the offences named
therein, apply also to criminal conspiracies to commit such offences and to the
abetment of such offences, and attempts to commit them.
(5) Where a complaint has been made under sub section (1), clause (a), by a
public servant, any authority to which such public servant is subordinate may
order the withdrawal of the complaint and if it does so, it shall forward a copy
of such order to the Court and, upon receipt thereof by the Court, no further
proceedings shall be taken on the complaint.
COMMENTARY
A plain reading of section 195, Criminal Procedure Code makes it clear that
complaint in writing by a Court is necessary only if the offence of the relevant
kind is “committed in or in relation to†any proceedings in any Court. It is
idle to suggest that a mutation officer is a Court. Hence limitation of section
195, Criminal Procedure Code is not attracted in such case.7a
8[196. Prosecution for offences against the State. No Court shall take
cognizance of any offence punishable under Chapter VI or IX A of the Pakistan
Penal Code (except section 127), or punishable under section 108 A, or section
153 A, or section '94 A or section 295 A or section 505 of the same Code. unless
upon complaint made by order of, or under authority from the Central Government.
or the Provincial Government concerned, or some officer empowered in this behalf
by either of the two Government.
196 A. Prosecution for certain classes of criminal conspiracy. No Court shall
take cognizance of the offence of criminal conspiracy punishable under section
120 13 of the Pakistan Penal Code,
(1) In a case where the object of the conspiracy is to commit either an illegal
act other than an offence, or a legal act by illegal means or at offence to
which the provisions of section 196 apply unless upon complaint made by order or
tinder authority front the Central Government, or the Provincial Government
concerned, or some officer empowered in this behalf by either of the two
Governments, or
(2) In a case where the object of the conspiracy is to commit any non cognizable
offence or a cognizable offence, or a cognizable offence not punishable with
death 9[imprisonment for life] or rigorous imprisonment for a term of two years
or upwards, unless the Provincial Government, or 10[officer-in-charge of the
prosecution in the District] empowered in this behalf by the Provincial
Government, has by order in writing, consented to the initiation of the
proceedings:
Provided that where the criminal conspiracy is one to which tile provisions of
sub section (4) of section 195 apply no such consent shall be necessary.
196B. Preliminary inquiry in certain cases. In the case of any offence in
respect of' which the provisions of section 196 or section 196A apply,
11[officer-in-charge of the investigation in the District] may, notwithstanding
anything contained in those sections or in any other part of this Code, order a
preliminary investigation by a police officer not being below the milk of
Inspector, in which case such officer shall have the powers referred to in
sectiotaI55, sub section (3).
197. Prosecution of Judges anal public servants. (1) When any person who is a
Judge within the meaning of section 19 of the Pakistan Penal Code, or when any
Magistrate, or when any public servant who is not removable from his office save
by or with the sanction of the Central Government or a Provincial Government, is
accused of any offence alleged to have been committed by him while acting or
purporting to act in the discharge of his official duty, no Court shall take
cognizance of such offence except with the previous sanction:
(a) in the case of a person employed in connection with the affairs of the
Centre, of the President; and
(b) in the case of a person employed in connection with the affairs of a
Province, of Governor of that Province.
(2) Power of President or Governor as to prosecution. The President or Governor,
as the case may be, may determine the person by whom, the manner in which, the
offences for which, the prosecution of such Judge, Magistrate or public servant
is to be conducted, and may specify the Court before which the trial is to be
held.
COMMENTARY
Hudood case against police officials. Sanction of Government for the
prosecution. Whether necessary. Question of. Case hinges on legal point whether
respondents 2 and 3 are removable by Provincial Government and are entitled to
protection as envisaged in Section 197, Cr.P.C. In notification of Home
Department, government of Sindh proper authority to award punishment has been
mentioned which is S.P. as respondents come under category No. 3. Sanction can
only be required when competent authority for removal is Provincial Government.
Held: Cases of respondents 2 and 3 are not covered under Section 197, Cr.P.C.
therefore, sanction for taking cognizance is not necessary.11a
Criminal complaint. Sanction against D.S.P. Proper stage for sanction. Stay of
proceedings. Parties allowed to adduce evidence. When during the course of
proceedings it reveals that case is one in which sanction is required
proceedings to be stopped. Complainant should be given time to produce sanction.
Of appropriate Government if sanction not produced within reasonable time then
question of acquittal be considered. Finding in judicial enquiry, only relevant
when considered with other evidence for the purpose of assessing the fact
whether sanction was required or not.11b
There must be a reasonable connection between the act and the discharge of
official duty; the act must bear such relation to the duty that the accused
could lay a reasonable, but not a pretended or fanciful claim, that he did it in
the course of the performance of his duty. 11c
Whether sanction is necessary or not may have to be determined from stage to
stage. The necessity may reveal itself in the course of the progress of the
case.11d
[198. Prosecution for breach of contract, defamation and offences against
marriage. No Court shall take cognizance of an offence falling tinder Chapter
XIX or Chapter XXI of the Pakistan Penal Code or under sections 493 to 496 (both
inclusive) of the same Code, except upon a complaint made by some person
aggrieved by such offence:
Provided that, where the person so aggrieved is a woman who, according to the
customs and manners of the country ought not to be compelled to appear in
public, or where such person is under the age of eighteen years or is an idiot
or lunatic, or is from sickness or infirmity unable to snake a complaint, some
other person may, with the leave of the Court, make a complaint on his or her
behalf:
Provided further that where the husband aggrieved, by an offence under section
494 of the said Code is serving in any of the Armed Forces of Pakistan under
conditions which are certified by the Commanding Officer as precluding him from
obtaining leave of absence to enable him to make a complaint in person, some
other person authorised by the husband in accordance with the provisions of Sub
section (1) of section 199B may, with the leave of the Court, make a complaint
on his behalf.
1-2[N.W.F.P. Amendment. The words "or under Sections 493 to 496 (both inclusive)
of the same Code"; and the second proviso to this Section shall be omitted.]
3[198A. Prosecution for defamation against public servants in respect of their
conduct in the discharge of public functions. (1) Notwithstanding anything
contained in this Code, when any offence falling under Chapter XXI of the
Pakistan Penal Code (Act XI.V of 1860) is alleged to have been committed against
the President, the Prime Minister, a Federal Minster, Minister of State,
Governor, Chief Minister or Provincial Minister or any public servant employed
in connection with the affairs of the Federation or of a Province, in respect of
his conduct iii the discharge of the public functions, a Court of Session may
take cognizance of such offence, without the accused being committed to it for
trial, upon a complaint in writing made by the Public Prosecutor.
(2) Every such complaint shall set forth the facts which constitute the offence
alleged, the nature of such offence and such other particulars as are reasonable
sufficient to give notice to the accused of the offence alleged to have been
committed by him.
(3) No complaint under sub section (1) shall be made by the Public Prosecutor
except with the previous sanction.
(a) in the case of the President or the Prime Minister or a Governor or any
Secretary to the Government authorised by him m this behalf.
(b) in the case of a Federal Minister or Minister of State, Chief Minister or
Provincial Minister, or any Secretary to the Government authorised in this
behalf by the Government concerned.
(c) in the case of any public servant employed in connection with the affairs of
the Federation or of a Province, of the Governor concerned.
(4) No Court of Sessions shall take cognizance of an offence under sub section
(1), unless the complaint is made within six months from the date on which the
offence is alleged to have been committed.
(5) When the Court of Session takes cognizance of an offence under sub section
(1), then, notwithstanding anything contained .in the Code, the Court of
Sessions shall try the case without the aid of a jury or assessors and in trying
the case shall follow the procedure prescribed of the trial by Magistrate of
warrant cases instituted otherwise than on a police report.
(6) The provisions of this section shall be in addition to, and not in
derogation of, those of section 198.]
4[199. Prosecution for adultery or enticing a married woman. 5[No Court shall
take cognizance of an offence under 497 or section 498 of the Pakistan Penal
Code, except:---
(a) upon a report in writing made by a police officer on the complaint of the
husband of the woman, or in his absence, by some person who had care of such
woman on his behalf at the time when such offence was committed; or
(b) upon a complaint made by the husband of the woman or, in his absence, made
with the leave of the Court by some person who had care of such woman on his
behalf at the time when such offence was committed:]
Provided that where such husband is under the age of eighteen years or is an
idiot or is from sickness or infirmity unable to make complaint, some other
person may with the leave of the Court, make a complaint on his behalf:
Provided further that where such husband is serving in any of the Armed Forces
of Pakistan under conditions which are certified by his Commanding Officer as
precluding him from obtaining leave of absence to enable him to make a complaint
in person, and where for any reason no complaint has been made by a person
having care of the woman as aforesaid, some other person authorised by the
husband in accordance with the provisions of sub section (1) of section 199B
may, with the leave of the Court make a complaint on his behalf]
COMMENTARY
One of the main objects of this section was to protect the public against false,
frivolous or vexatious complaints filed against them in criminal Courts and that
magistrate must not lightly accept written complaints and proceed to issue
processes until they had thoroughly sifted the allegations made against the
accused and were satisfied that a prima facie case had been made out against
these who were accused of criminal offences. But where the provisions of this
section have not been followed the defect in proceedings is a mere irregularity
curable under section 537 of the Code.5a
[199A. Objection by lawful guardian to complaint by person other than person
aggrieved. When in any case falling under section 198 1[or section 199] the
person on whose behalf the complaint is sought to be made is under the age of
eighteen yeas or is a lunatic, and the person applying for leave has not been
appointed or declared by competent authority to be the guardian of the person of
the said minor or lunatic, and the Court is satisfied that there is a guardian
so appointed or declared, notice shall be given to such guardian and the Court
shall, before granting the application, give him a reasonable opportunity of
objecting to the granting thereof.
[199B. Form of authorisation under second proviso to section 198 or 199. (1) The
authorisation of a husband given to another person to make a complaint on his
behalf under the second proviso to section 198 or the second proviso to section
199 shall be in writing, shall be signed or otherwise attested by the husband,
shall contain a statement to the effect that he has been informed of the
allegation upon which the complaint is to be founded, shall be countersigned by
the Officer referred to in the said proviso, and shall be accompanied by a
certificate signed by the Officer to the effect that leave of absence for the
purpose of making a complaint in person cannot for the time being be granted to
the husband.
(2) Any document purporting to be such an authorisation and complying with the
provisions of sub section (1), and any document purporting to be a certificate
required by that sub section, shall, unless the contrary is proved, be presumed
to be genuince, and shall be received in evidence.
CHAPTER XVI
OF COMPLAINTS TO MAGISTRATES
200. Examination of complainant. A Magistrate taking cognizance of an offence on
complaint shall at once examine the complainant upon oath, and the substance of
the examination shall be reduced to writing and shall be signed by the
complainant, and also by the Magistrate:
Provided as follows:
(a) when the complaint is made in writing nothing herein contained shall be
deemed to require a Magistrate to examine the complainant before transferring
the case under section 192 2[or sending it to the Court of Session;]
(b) when the complaint is made in writing nothing herein contained shall be
deemed to require the examination of a complainant in any case in which the
complaint has been made by a Court or by a public servant acting or purporting
to act in the discharge of his official duties.
(c) when the case has been transferred under 192 and the Magistrate so
transferring it has already examined the complainant, the Magistrate to whom it
is so transferred shall not be bound to re examine the complainant.
COMMENTARY
Public servant. Manager of a Nationalised Bank is a public servant within the
meanings of the words used in S. 200, Cr.P.C. proviso (aa). Held, that since he
is a public servant it is not necessary to examine complainant and to go in
question whether prima facie any scheduled offence is made out against the
accused, may be seen from contents of complaint itself.2a
There is no provision in the Code to the effect that a failure to follow the
provisions of section 200 in respect of examination of the complainant entails
invalidation of the proceedings taken. The history of this section apparently
bears out the contention that the defect amounts to a more irregularity and
apart from the question of prejudice would be insufficient to vitiate the
proceedings.2b
201. Procedure by Magistrate not competent to take cognizance of the case. (1)
If the complaint has been made in writing to a Magistrate who is not competent
to take cognizance of the case, he shall return the complaint for presentation
to the proper Court with an endorsement to that effect.
(2) If the complaint has not been made in writing such Magistrate shall direct
the complainant to the proper Court.
3[202. Postponement of issue of process. (1) Any Court; on receipt of a
complaint of an offence of which it is authorised to take cognizance, or which
has been sent to it under section 190, sub section (3), or transferred to it
under section 191 or section 192, may, if it thinks fit, for reasons to be
recorded, postpone the issue of process for compelling the attendance of the
person complained against, and either inquire into the case itself or direct an
inquiry or investigation to be made by any Justice of the Peace, or by a police
officer or by such other person as it thinks fit, for the purpose of
ascertaining the truth or falsehood of the complaint:
Provided that, save where the complaint has been made by a Court, no such
direction shall be made unless the complainant has been examined on oath wider
the provisions of section 200.
(2) A Court of Session may, instead of directing an investigation under the
provisions of sub section (1), direct the investigation to be made by any
Magistrate subordinate to it for the purpose of ascertaining the truth or
falsehood of the complaint.
(3) If any inquiry or investigation under this section is made by a person not
being a Magistrate, or Justice of the Peace, or a Police Officer, such person
shall exercise all the powers conferred by this Code on an officer in charge of
a police station, except that he shall not have power to arrest without warrant.
(4) Any Court inquiring into a case under this section may, if it thinks lit,
take evidence of witnesses on oath.]
203. Dismissal of complaint. The 4[Court] before whom a complaint is made or to
whom it has been transferred 5[or sent] may dismiss the complaint, if, after
considering the statement on oath (if any) of the complainant and the result of
the investigation or inquiry if any under section 202 there is in his judgment
no sufficient ground for proceedings. In such cases he shall briefly record his
reason for so doing.
COMMENTARY
Discharge. Supreme Court refused to interfere where Magistrate discharged
accused on failure of complainant to produce evidence in support of his
complaint.6
CHAPTER XVII
OF THE COMMENCEMENT OF PROCEEDINGS BEFORE
1[COURTS]
204. Issue of process. (1) If in the opinion of a 1[Court] taking cognizance of
an offence there is sufficient ground for proceeding and the case appears to be
one in which, according to the fourth column of the Second Schedule a summons
should issue in the fast instance, 1[it] shall issue 1[itself] summons for the
attendance of the accused. If the case appears to be one in which, according to
that column, a warrant should issue in the first instance, 1[it] may issue: a
warrant, or, if, 1[it] thinks fit, a summons for causing the accused to be
brought or to appear at a certain time before such 1[Court] or (if 1[it] has not
jurisdiction [itself]) some other 1[Court] having jurisdiction.
(2) Nothing in this section shall be deemed to affect the provision of section
90.
(3) When by any law for the time being in force any process fee or other fees
are payable, no process shall be issued until the fees are paid, and, if such
fees are not paid within a reasonable time, the 1[Court] may dismiss the
complaint.
205. Magistrate may dispense with personal attendance of accused. -(1) Whenever
a Magistrate issues a summons, he may, if he sees reason so to do, dispense with
the personal attendance of the accused, an permit him to appear by his pleader.
(2) But the Magistrate inquiring into or trying the case may, in his discretion,
at any stage of the proceedings direct the personal attendance of the accused,
and, if necessary, enforce such attendance in manner hereinbefore provided.
CHAPTER XVIII
OF INQUIRY INTO CASES TRIABLE BY THE COURT OF
SESSION OR HIGH COURT
206 220. [Chapter CHI consisting of sections 206 220 omitted by Law Reforms
Ordinance, I 972].
CHAPTER XIX
OF THE CHARGE
Form of Charges
221. Charge to state offence. (1) Every charge under this Code shall state the
offence with which the accused is charged.
(2) Specific name of offence: sufficient description. If the law which creates
the offence gives it any specific name, the offence may be described in the
charge by that name only.
(3) How stated where offence has no specific name. If the la\v which creates the
offence does not give it any specific name, so much of the definition of the
offence must be stated as to give the accused notice of the matter with which
lie is charged.
(4) The law and section of the law against which the offence is said to have
been committed shall be mentioned in the charge.
(5) What implied in charge. The fact that the charge is made is equivalent to a
statement that every legal condition required by law to constitute the offence
charged was fulfilled in the particular case.
(6) Language of charge. The charge shall be written either in English or in the
language of the Court.
(7) Previous conviction when to be set out. If the accused having been
previously convicted of any offence, is liable, by reason of such previous
conviction, to enhanced punishment, or to punishment of a different kind, for a
subsequent offence, and it is intend to prove such previous conviction for the
purpose of affecting the punishment which the Court may thinks fit to award for
the subsequent offence, the fact, date and place of the previous conviction
shall be stated in the charge. If such statement has been omitted, the Court may
add it at any time before sentence is passed.
Illustration
(a) A is charged with the murder of B. This is equivalent to a statement that
A’s act fell within the definition of murder given in sections 299 and 300 of
the Pakistan Penal Code; that it did not fall within any of the general
exceptions of the same Code: and that it did not fall within any of the five
exceptions to section 300 or that, if it did fall within Exception 1, one or
other of the three provisos to that exception apply to it.
(b) A is charged, under section 326 of the Pakistan Penal Code, with voluntarily
causing grievous hurt to B by means of an instrument for shooting. This is
equivalent to a statement that the case was not provided for by section 335 of
the Pakistan Penal Code, and that the general exceptions did not apply to it.
(c) A is accused of murder, cheating, theft, extortion, adultery or criminal
intimidation, or using a false property mark. The charge may state that A
committed murder, cheating or theft, or extortion, or adultery, or criminal
intimidation, or that he used a false property mark, without reference to the
definition of those crimes contained in the Pakistan Penal Code: but the
sections under which the offence is punishable must, in each instance, be
referred to in the charge.
(d) A is charged, Under section 184 of the Pakistan Penal Code, with
intentionally obstructing a sale of property offered for sale by the lawful
authority of a public servant. The charge should be in those words.
222. Particular as to time, place and person. (1) The charge shall contain such
particulars as to the time and place of the alleged offence, and the person (if
any) against whom; or the thing (if any) in respect of which, it was committed,
as are reasonably sufficient to give the accused notice of the matter with which
he is charged.
(2) When the accused is charged with criminal breach of trust or dishonest
misappropriation of money, it shill be sufficient to specify the gross sum in
respect of which the offence is alleged to have been committed, and the dates
between which the offence is alleged to have been committed, without specifying
particular items or exact dates, and the charge so framed shall be deemed to be
a charge of one offence within the meaning of section 234:
Provided that the time included between the first and last of such dates shall
not exceed one year.
223. When manner of committing offence must be stated. When the nature of the
case is such that the particulars mentioned in sections 221 and 222 do not give
the accused sufficient notice of the matter with which he is charged, the charge
shall also contain such particulars of the manner in which the alleged offence
was committed as will be sufficient for that purpose.
Illustrations
(a) A is accused of the theft of a certain article at a certain time and place.
The charge need not set out manner in which theft was effected.
(b) A is accused of cheating B at a given time and place. The charge must set
out the planner in which A cheated B.
(c) A is accused of giving false evidence at a given time and place. The charge
must set out that portion of the evidence given by A which is alleged to be
false.
(d) A is accused of obstructing B, a public servant, in the discharge of his
public functions at a given time and place. The charge must set out the manner
in which A obstructed B in the discharge of his functions.
(e) A is accused of the murder of B at a given time and place. The charge need
not state the manner in which A murdered B.
(f) A is accused of disobeying a direction of the law with intent to save B from
punishment. The charge must set out the disobedience charged and the law
infringed.
224. Words in charge taken in sense of law under which offence is punishable. In
every charged words used is describing an offence shall be deemed to have been
used in the sense attached to them respectively by the law under which such
offence is punishable.
225. Effect or errors. No error in stating either the offence or the particulars
required to be stated in the charge, and no omission to state the offence or
those particulars, shall be regarded at any stage of tile case as material,
unless the accused was in fact misled by such error or omission, and it has
occasioned a failure of justice.
Illustrations
(a) A is charged under section 242 of the Pakistan Penal Code, with "having been
in possession of counterfeit coin, having known at the time when he became
possessed thereof that such coin was counterfeit", the word "fraudulently" being
omitted in the charge. Unless it appears that A was in fact misled by this
omission, the error shall not be regarded as material.
(b) A is charged with cheating B, and the manner in which he cheated B is not
set out in the charge, or is set out incorrectly. A defends himself, calls
witnesses and gives his own account of the transaction. The Court may infer from
this that the omission to set out the manner of the cheating is not material.
(c) A is charged with cheating B, and the manner in which he cheated B is not
set out in the charge. There were many transactions between A and B and A had no
means of knowing to which of them the charge referred, and offered no defence.
The Court may infer from such facts that the omission to set out the manner of
the cheating was, in the case, a material error.
(d) A is charged with the murder of Khoda Bakhsh on the 21st January, 1882. In
fact, the murdered person's name was Haidar Bakhsh, and the date of the murder
was the 20th January, 1882. A was never charged with any murder but one, and had
heard the 2[trial], which referred exclusively to the case of Haider Baldhsh.
The Court may infer from these facts that A was not misled and that the error in
the charge was immaterial.
(e) A was charged with murdering Haider Baklish on the 20th January, 1882, and
Khoda Baklish (who tried to arrest him for that murder) on the 21st January,
1882. When charged for the murder of Haider Bakhsh, he was tried for the murder
of Khoda Bakhsh. The witnesses present in his defence were witnesses in the case
of Haider Bakhsh. The Court may infer from this that A was misled, and that the
error was material.
226. [Omitted by law Reforms Ordinance, 1972].
227. Court may alter charge. (1) Any Court may alter or add to any charge at any
time before judgment is pronounced 3[x x x x x x].
(2) Every such alteration or addition shall be read and explained to the
accused.
228. When trial may proceed immediately after alteration. If the charge framed
or alteration made under 4[x x x] section 227 is such that proceeding
immediately with the trial is not likely, in the opinion of the Court, to
prejudice the accused in his defence or the prosecutor in the conduct of the
case, the Court may, in its discretion, after such charge or alteration has been
framed or made, proceed with the trial as if the new or altered charge had been
the original charge.
229. When new trial may be directed, or trial suspended. If the new or altered
or added charge is such that proceeding immediately with the trial is likely, in
the opinion of the Court, to prejudice the accused or the prosecutor as
aforesaid, the Court may either direct a new trial or adjourn the trial for such
period as may be necessary.
230. Stay of proceedings if prosecution of offence in altered charge requires
previous sanction. If the offence stated in the new or altered or added charge
is one for the prosecution of which previous sanction is necessary, the case
shall not be proceeded with until such sanction is obtained for a prosecution on
the same facts as those on which the new or altered charge is founded.
231. Recall of witnesses when charge altered. Whenever a charge is altered or
added to by the Court after the commencement of the trial, the prosecutor and
the accused shall be allowed to recall or re summon, and examine with reference
to such alteration or addition, any witness who may have been examined, and also
to call any further witness whom the Court may think to be material.
232. Effect of material error. (1) If any Appellate Court. or the High Court
5[or the Court of Session] in the exercise of revision or of its powers tinder
Chapter XVII, is of opinion that any person convicted of an offence was misled
in his, defence by the absence of a charge or by any error in the charge, it
shall direct a new trial to be held upon a charge framed in. whatever manner it
thinks fit.
(2) If the Court is of opinion that the facts of the case are such that no valid
charge could be preferred against the accused in respect of the facts proved, it
shall quash the conviction.
Illustration
A is convicted of an offence; under section 196 of the Pakistan Penal CA, upon a
charge which omits to state that he knew the evidence, which he corruptly used
or attempted to use as true or genuine, was false or fabricated. If the Court
thinks it probable that A had such knowledge, and that he was misled in his
defence by the omission from the charge; but, if it appears probable from the
proceedings that A had no such knowledge, it shall quash the conviction.
Joinder of charges
233. Separate charges for distinct offences. For ever distinct offence oh which
any person is accused there shall be a separate charge, and every such charge
shall be tried separately, except in the cases mentioned in sections 234, 235,
236 and 239.
Illustration
A is accused of a theft on one occasion, arid causing grievous hurt on another
occasion. A must be separately charged and separately tried for the theft and
causing grievous hurt.
COMMENTARY
Separate charges for distinct offences. This section lays down the primary rule
that there should be a separate charge and a separate trial for every distinct
offence and it is obvious that the principle of this rule is that embarrassment
to the accused and confusion to the jury should not be caused by a member of
charges based on disconnected allegations being tried together, section 233
itself indicates the exceptions to the general rule but it is clear from their
language that their object is only to avoid duplication of proceedings. They
should, therefore be construed with strictness and not to defeat the right of
separated trial conferred under the section.6
234. Three offences of same kind within one year may be charged together. (1)
When a person is accused of more offences than one of the same kind committed
within the space of twelve months from the first to the last of such offences,
whether in respect of the same person or not, he may be charged, with, and tried
at one trial for, any number of them not exceeding three.
(2) Offences are of the same kind when they are punishable with the same amount
of punishment under the same section of the Pakistan Penal Code or of any
special or local law:
Provided that, for the purpose of this section, an offence punishable under
section 379 of the Pakistan Penal Code shall be deemed to be an offence of the
same kind as an offence punishable under any section 80 of the said Code, and
that an offence punishable under any section of the Pakistan Penal Code or under
any special or local law shall be deemed to be an offence of the same kind as an
attempt to commit such offence, when such an attempt is an offence.
235. Trial for more than one offence. (1) If, in one series of acts so connected
together as to form the same transaction, more offences than one are committed
by the same person, he may be charged with, and tried at one trial for, every
such offence.
(2) Offence falling within two definitions. If the acts alleged constitute an
offence falling within two or more separate definitions of any law in force for
the time being by which offences are defined or punished, the person accused of
them may be charged with, and tried at one trial for, each of such offences.
(3) Acts constituting one offence, but constituting when combined a different
offence. If several acts, of which one or more than one would by itself or
themselves constitute an offence, but constitute when combined a different
offence, the person accused of them may be charged with, and tried at one trial
for, the offence constituted by such acts when combined, and for any one or
more, of such acts.
(4) Nothing contained in this section shall affect the Pakistan Penal Code,
section 71.
Illustrations
To sub section (1):--
(a) A rescues B, a person in lawful custody, and in so doing causes grievous
hurt to C, an constable in whose custody B was, A may be charged with, and
convicted of offences under sections 225 and 333 of the Pakistan Penal Code.
(b) A commits house breaking by day with intent to commit adultery, and commits
in the house so entered adultery with B's wife. A may be separately charged
with, and convicted of, offences under sections 454 and 497 of the Pakistan
Penal Code.
(c) A entries B, the wife of C, away from C, with intent to commit adultery with
B, and then commits adultery with her. A may be separately charged with, and
convicted of, offences under sections 498 and 491 of the Pakistan Penal Code.
(d) A has in his possession several seals, knowing them to be counterfeit and
intending to use them for the purpose of committing several forgeries punishable
under section 466 of the Pakistan Penal Code. A may be separately charged with,
and convicted of, the possession of each seal under section 473 of the Pakistan
Penal Code.
(e) With intent to cause injury to B,.A institutes a criminal proceeding against
him, knowing that there is no just or lawful ground for such proceeding; and
also falsely accuses B of having committed an offence, knowing that there is no
just or, lawful ground for such charges. A may be separately charged with, and
convicted of, two offences under section 211, of the Pakistan Penal Code.
(f) A, with intent to cause injury to B, falsely accuses him of having committed
an offence, knowing that there is no just or lawful ground for such charge. On
the trial A gives false evidence against B, intending thereby co cause B to be
convicted of a capital offence. A may be separately charged with, and convicted
of, offences under sections 211 and 194 of the Pakistan Penal Code.
(g) A, with six others, commits the offences of rioting, grievous hurt and
assaulting a public servant endeavouring in the discharge of his duty as such to
suppress the riot. A may be separately charged with, and convicted of, offences
under sections 147, 325 and 152 of the Pakistan Penal Code.
(h) A the threatens B, C and D at the same time with injury to their persons
with intent to cause alarm to them. A may be separately charged with, and
convicted of, each of three offences under section 506 of the Pakistan Penal
Code.
The separate charges referred to in illustration (a) to (h) respectively may
tried at the same time.
To sub section (2)
(i) A wrongfully strikes B with a cane: A may be separately charged with, and
convicted of, offences under sections 352 and 323 of the Pakistan Penal Code.
(j) Several stolen sacks of corn are made over to A and B who know they are
stolen property, for the purpose of concealing them. A and B thereupon
voluntarily assist each other to conceal the sacks at the bottom of a grain pit.
A and B may be separately charged with, and convicted of offences under sections
411 and 414 of the Pakistan Penal Code.
(k) A exposes her child with the knowledge that she is thereby likely to cause
its death the child dies in consequence of such exposure. A may be separately
charged with, and convicted of, offences under sections 317 and 304 of the
Pakistan Penal Code.
(1) A dishonestly uses a forged documents as genuine evidence, in order to
convict B, a public servant, of an offence under section 167 of the Pakistan
Penal Code. A may be separately charged with, and convicted of, offences under
sections 471 (read with 466) and 196 of the same Code.
To sub section, (3)
(m) A commits robbery on B, and in doing so voluntarily causes hurt to him. A
may be separately charged with, and convicted of, offences under sections 322,
392 and 394 of the Pakistan Penal Code.
COMMENTARY
Joint trial. Joint trial of offences or persons is not to be ordered where
accused are likely to be prejudiced.6a.
Ss. 235, 239. Ss. 234, 235, 236 and 239 are exceptions to general rule. Several
persons accused of committing an offence in course of same transaction were
tried separately. Trial did not vitiate.6b
An act constituted an offence but several acts when combined constituted a
different offence. Accused can be tried for all offence. Normally Court would
charge accused in respect of most serious offence.6c
Offences under Ss. 409 and 468, P.P.C; are complementary to each other and their
joint trial, in absence of prejudice to accused, is not illegal.6d
Ss. 235, 239. For trial of cases on private complaint and police challan
relating to same murder, High Court laid down procedure recommending examination
of common witnesses only once and their statements to read out evidence in other
case. This procedure was not approved by Supreme Court.6e
236. Where it is doubtful what offence has been committed. If a single act or
series of acts is of such a nature that it is doubtful which of several offences
the facts which can be proved, will constitute, the accused may be charged with
having committed all or any of such offences, and any number of such charges may
be tried at once; or he may be charged in the alternative with having committed
some one of the said offences.
Illustrations
(a) A is accused of an act which may amount to theft, or receiving stolen
property, or criminal breach of trust or cheating. He may be charged with theft,
receiving stolen property, criminal breach of trust and cheating, or he may be
charged with having committed theft, or receiving stolen property, or criminal
breach of trust or cheating.
(b) A states on oath before the Magistrate that he saw B hit C with a club.
Before the Sessions Court a states on oath that B never hit C. A may be charged
in the alternative and convicted of intentionally giving evidence, although it
cannot be proved which of these contradictory statements was false.
COMMENTARY
Ss. 236, 239. Alternative charge. Where two accused were being tried jointly
under S. 420/109, P.P.C. one of them may be charged with an alternative charge
under Sec. 409, P.P.C.6f
237. When a person is charged with one offence; he can he convicted of another.
(1) If, in the case mentioned in section 236, the accused is charged with one
offence, and it appears in evidence that he committed a different offence for
which he might have been charged under the provisions of that section, he may be
convicted of the offence which he is shown to have committed although he was not
charged with it.
(2) Repealed by Act XVIII of 1923.
Illustration
A is charged with theft. It appears that he committed the offence of criminal
breach of trust, or that of receiving stolen goods. He may be convicted of
criminal breach of trust or of receiving stolen goods (as the case may be)
though he was not charged with such offence.
COMMENTARY
S. 237. It was observed by the Supreme Court of Pakistan that where an accused
person is charged with one offence and it appears in evidence that he committed
a different offence of which he might have been charged in respect of a single
act or series of acts, then, subject to absence of prejudice, the accused may be
convicted of the offence which he is shown to have committed, although he was
not charged with it.6g
Ss. 237, 238. Charge for major offence. Where graver charge gives to accused
notice of all circumstances which also constitute the minor offence, conviction
for minor offence is valid.6h
238. When offence proved included in offence charged. (1) When a person in
charged with an offence consisting of several particulars, a combination of some
only of which constitutes a complete minor offence, and such combination is
proved, but the remaining particulars are not proved, he may be convicted of the
minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce
it to a minor offence, he may be convicted of the minor offence, although he is
not charged with it.
(2A) When a person is charged with an offence, lie may be convicted of an
attempt to commit such offence although the attempt is not separately charged.
(3) Nothing in this section shall be deemed to authorize a conviction of any
offence referred to in section 198 or section 199 when no complaint has been
made as required by that section.
Illustrations
(a) A is charged, under section 407 of the Pakistan Penal Code, with criminal
breach of trust in respect of property entrusted to him as a carrier. It appears
that he did commit criminal breach of trust under section 406 in respect of the
property but that it was not entrusted to him as a carrier. He may be convicted
breach of trust under section 406.
(b) A is charged, under section 325 of the Pakistan Penal Code, with causing
grievous hurt. He proves that he acted on grave and sudden provocation. He may
be convicted under section 335 of that Code.
239. What persons may be charged jointly. The following persons may be charged
and tried together, namely: -
(a) persons accused of the same offence committed in the course of the same
transaction;
(b) persons accused of an offence and persons accused of abetment, or of an
attempt to commit such offence;
(c) persons accused of more than one offence of the same kind, within the
meaning of section 234 committed by them jointly within the period of twelve
months;
(d) persons accused of different offences committed in the course of the same
transaction;
(e) persons accused of an offence which includes theft, extortion or criminal
misappropriation, and persons accused of receiving or retaining, or assisting in
the disposal or concealment of property possession of which is alleged to have
been transferred by any such offence committed by the first named persons, or of
abetment of or attempting to commit any such last named offence;
(f) persons accused of offences under sections 411 and 414 of the Pakistan Penal
Code or either of those sections in respect of stolen property the possession of
which has been transferred by one offence; and
(g) persons accused of any offence under Chapter XII of the Pakistan Penal Code
relating to counterfeit coin, and persons accused of any other offence under the
said Chapter relating to the same coin, or of abetment of or attempting to
commit any such offence; and the provisions contained in the former part of this
Chapter shall, so far as may be. apply to all such charges.
COMMENTARY
Where two sets of accused were committed separately, their joint trial was
permissible.6i
240. Withdrawal of remaining charges in conviction on one of
several charges. When a charge containing more heads than one is framed against
the same person, and when a conviction has been had on one or more of them, the
complainant, or the officer conducting the prosecution, may, with the consent of
the Court, withdraw the remaining charge or charges, or the Court of its own
accord may stay the inquiry, into, or trial of such charge or charges. Such
withdrawal shall have the effect of an acquittal on such charge or charges,
unless the conviction be set aside in which case the said Court (subject to the
order of the Court setting aside the
conviction) may proceed with the inquiry into or trial of the charge or charges
so withdrawn.
CHAPTER XX
OF THE TRIAL OF 6[CASES] BY MAGISTRATES
241. [Procedure in trial of cases.] The following procedure shall be observed by
Magistrate in the trial 6[cases].
7[241 A.Supply of statements and documents to the accused. (1) In all cases
instituted upon police report, except those tried summarily or punishable with
fine or imprisonment not exceeding six months, copies of statements of all
witnesses recorded under sections 161 and 164 and of the inspection note
recorded by an investigation officer on his first visit to the place of
occurrence, shall be supplied free of cost to the accused not less than seven
days before the commencement of the trial:
Provided that, if any part of a statement recorded under section 161 is such V
that its disclosure to the accused would be inexpedient in the public interest,
such part of the statement shall be excluded from the copy of the statement
furnished to the accused.
(2) In all cases instituted upon a complaint in writing, the complainant
shall:--
(a) state in the petition of complaint the substance of the accusation. The
names of his witnesses and the gist of the evidence which he is likely to adduce
at the trial; and
(b) within three days of the order of the Court under section 204 for issue of
process to the accused, tile in the Court for supply to the accused, as many
copies of the complaint and any other document which he has filed with his
complaint as the number of the accused.
Provided that the provisions of this sub section shall not apply in any case in
which the complaint has been made by a Court or by a public servant acting or
purporting to act in the discharge of his official duties.]
8[242. Charge to be framed. When the accused appears or is brought before the
Magistrate, a formal charge shall be teamed relating to the offence of which he
is accused and he shall be asked whether he admits that he has committed the
offence with which he is charged.
243. Conviction on admission of truth of accusation. If the accused admits that
he has committed the offence 1[with which he is charged] his admission shall be
recorded as nearly as possible in the words used by him; and, if he shows no
sufficient cause why he should not be convicted, the Magistrate may convict him
accordingly.
244. Procedure when no such admission is made. (1) If the Magistrate does not
convict the accused under the preceding section or if the accused does not make
such admission, the Magistrate shall proceed to hear the complainant (if any),
and take all such evidence as may be produced in support of the prosecution, and
also to hear the caused and take all such evidence as he produces in this
defence:
Provided that the Magistrate shall not be bound to hear any person as a
complainant in any case in which the complaint has been made by a Court.
2[(2) The Magistrate may, if he thinks fit, on the application of the
complainant or accused, issue a summons to any witness directing him to attend
or to produce any document or other thing.]
(3) The Magistrate may, before summoning any witness on such application,
required that his reasonable expenses, incurred in attending for the purposes of
the trial, be deposited in Court:
3[Provided that it shall not be necessary for the accused to deposit any such
expenses in Court in cases where he is charged with an offence punishable with
imprisonment exceeding six months.]
4[244 A. Statement made under section 164. The statement of a witness duly
recorded under section 164. if it was made in the presence of the accused and if
he had notice of it and was given an opportunity of cross examining the witness.
may, in the discretion of the Court, if such witness is produced and examined,
be treated as evidence in the case for all purposes subject to the provisions of
the Evidence Act, 1872.]
245. Acquittal. (1) If the Magistrate upon taking the evidence referred to in
Section 244 and such further evidence (if any) as he may, of his own motion,
cause to be produced, and (if he thinks fit) examining the accused. finds the
accused not guilty, he shall record an order of acquittal.
(2) Sentence. Where the Magistrate does not, proceed in accordance, with lie
provisions of Section 349 5[x x x x] he shall, if he finds the accused guilty,
pass sentence upon him according to law.
6[245 A. Procedure in case of previous convictions. In a case where a previous
conviction is charged under the provisions of Section 221, sub section (7), and
the accused does not admit that he has been previously convicted as alleged in
the charge, the Magistrate may, after he has convicted in respect of the alleged
previous conviction. and if he does so, shall record a finding thereon.]
246. [Omitted by Law Reforms Ordinance, 1972].
247. Non appearance of complainant. If the summons has been issued on.
complainant, and upon the day appointed for the appearance of the accused, or
any day subsequent thereto to which the hearing may be adjourned, the
complainant does not appear. Magistrate shall, notwithstanding anything
hereinbefore contained, acquit the accused, unless for some reason he thinks
proper to adjourn the hearing of the case to some other clay:
Provided that, where the complainant is a public servant and his personal
attendance is not required, the Magistrate may dispense with his attendance, and
proceed with the case:
6[Provided further that nothing in this section shall apply where the offence of
which the accused is charged is either cognizable or non compoundable.]
248. Withdrawal of complaint. If a complainant, at any time before a final order
is passed in any case under this Chapter, satisfies the Magistrate that there
are sufficient grounds for permitting him to withdraw his complaint the
Magistrate may permit him to withdraw the same, and shall thereupon acquit the
accused.
249. Power to stop proceedings when no complainant. In any case instituted
otherwise than upon complaint a Magistrate of the first class, or with the
previous sanction of the Sessions Judge,7[***] may for reasons to be recorded by
him, stop the proceedings at any stage without pronouncing any judgment either
of acquittal or conviction, and may thereupon release the accused.
COMMENTARY
Acquittal of accused. Challenge to. Perusal of Section 249-A clearly shows that
trial Magistrate is given power of acquitting an accused person at any stage of
case, if charge is groundless or there is no probability of accused being
convicted of any offence. Such order can be passed even before recording of
evidence if Court is satisfied that no useful purpose would be served by
proceeding further in matter. In cases of breach of contract, both remedies on
criminal as well as civil side, are available, but guidelines in case law show
that civil Courts be given preference and allowed to decide such disputed facts.
Held: If trial Court is given power to acquit at any stage of proceedings, then
it can be said that order of acquittal can be passed by Court without recording
evidence.7a
8[249A. Power of Magistrate to acquit accused at any stage. Nothing in this
Chapter shall be deemed to prevent a Magistrate from acquitting an accused at
any stage of the case if, after hearing the prosecutor and the accused and for
reasons to be recorded, he considers that the charge is groundless or that there
is no probability of the accused being convicted of any offence.]
Frivolous Accusations in 9[Cases Tried by Magistrates]
250. False, frivolous or vexatious accusations. (1) If in any case instituted
upon complaint or upon information given to a police officer or to a Magistrate,
one or more persons is or are accused before a Magistrate of any offence triable
by a Magistrate, and the Magistrate, by whom the case is heard 9[x x x x x ]
acquits all or any of the accused, and is of opinion that the accusation against
them or any of them was false and either frivolous or vexatious, the Magistrate
may, by his order of 9[x x x x x] acquittal, if the person upon whose complaint
or information the accusation was made is present call upon him forthwith to
show cause why lie should not pay compensation to such accused or to each or
any, of such accused when there are more than one, or if such person is not
present direct the issue of a summons to appear and show cause as aforesaid.
(2) The Magistrate shall record and consider any cause which such complainant or
informant may show and if he is satisfied that the accusation was false and
either frivolous or vexatious, may, for reasons to be recorded, direct that
compensation to such amount not exceeding 1[twenty five thousand rupees] or, if
the Magistrate is a Magistrate of the third class not exceeding 1[two thousand
and five hundred rupees,] as he may determine, be paid by such complainant or
informant to the accused or to each or any of them.
2[(2 A) The compensation payable under sub section (2) shall be recoverable an
arrear of land revenue.]
(2B) When any person is imprisoned under sub section (2A), the provisions of
sections 68 and 69 of the Pakistan Penal Code shall, so far as may be, apply.
(2C) No person who has been directed to pay compensation under this section
shall, by reason of such order, be exempted from any civil or criminal liability
in respect of the complaint made or information given by him:
Provided that any amount paid to an accused person under this section shall be
taken into account, in awarding compensation to such person in any subsequent
civil relating to the same matter.
(3) A complainant or informant who has been ordered under subsection (2) by a
Magistrate of the second or third class to pay compensation or has been so
ordered by any other Magistrate to pay compensation exceeding fifty rupees may
appeal from the order insofar as the order relates to the payment of the
compensation, as if such complainant or informant had been convicted on a trial
held by such Magistrate.
(4) When an order of payment of compensation to an accused person is made, in
case which is subject to appeal under sub section (3), the compensation shall
not be paid to him before the period allowed for the presentation of the appeal
has elapsed, or, if any appeal is presented, before the appeal has been decided
and, where such order is made in a case which is not so subject to appeal, the
compensation shall not be paid before the expiration of one month from the date
of the order.
3[250 A. Special summons in case of petty offences. (1) Any Magistrate of the
first class specially empowered in this behalf by the Provincial Government
taking cognizance of any offence punishable only with fine shall, except for
reasons to be recorded in writing, issue summons to the accused requiring him
either to appear before him on a specified date in person or by an advocate or,
if he desires to plead guilty to the charge, without appearing before the
Magistrate, to transmit to the Magistrate before the specified date, by
registered post or through a messenger, the said plea in writing and the amount
of fine specified in the summons, or, if he desires to appear by an advocate and
to plead guilty to the charge, to authorise, in writing, such advocate to plead
guilty to the charge on his behalf and to pay the fine:
Provided that the amount of the fine specified in such summons shall not be less
than twenty five per cent nor more than fifty per cent of the maximum fine
provided for such offence.
(2) Sub section (1) shall not apply to an offence punishable under the Motor
Vehicles Ordinance, 1965 (W.P. Ordinance XIX of 1965), or under any other law
which provides for the accused person being convicted in his absence on a plea
of guilty.]
CHAPTER XXI
OF THE TRIAL OF WARRANT CASES BY MAGISTRATE
251 259 [Omitted by Law Reforms Ordinance, 1972].
CHAPTER XXII
OF SUMMARY TRIALS
260. Power to try summarily. (I) Notwithstanding anything contained in this
Code:
(a) [Omitted by Law Reforms Ord., 1972]
(b) any Magistrate of the first class specially empowered in this behalf by the
Provincial Government, and
(c) any Bench of Magistrates invested with the powers of a Magistrate of the
first class arid especially empowered in this behalf by the Provincial
Government,
may, if he or they think fit, try in a summary way all or any of the following
offences:
(a) offences not punishable with death, transportation or imprisonment for a
term exceeding six months;
(b) offences relating to weights and measures under sections 264, 265 and 266 of
the Pakistan Penal Code;
(c) hurt, under section 323 of the same Code;
(d) theft, under section 379, 380 or 381 of the same Code, where the value of
the property stolen does not exceed 4[two thousand and five hundred rupees;]
(e) dishonest misappropriation of property under section 403 of the same Code,
where the value of the property misappropriated does not exceed 4[two thousand
and five hundred rupees;]
(f) receiving or retaining stolen property under section 411 of the same Code,
where the value of such property does not exceed 4[two thousand and five hundred
rupees;]
(g) assisting in the concealment or disposal of stolen property, under section
414 of the same Code, where the value of such property does not exceed 4[two
thousand and five hundred rupees;] .
(h) mischief, under section 427 of the same Code;
(i) house trespass, under section 448, and offences under sections 451, 453,
454, 456 and 457 of the same Code;
(j) insult with intent to provoke a breach of the peace, under section 504, and
criminal intimidation, under section 506 of the same Code;
(jj) offence of presentation at an election under section 171E of the same Code;
(k) abetment of any of the foregoing offence;
(l) an attempt to commit any of the foregoing offences, which such attempt is an
offence;
(m) offences under section 20 of the Cattle Trespass Act, 1871;
5[x x x x]
(2) When in the course of a summary trial it appears to the Magistrate or Bench
that the case is one which is of a character which renders it undesirable that
it should be tried summarily, the Magistrate or Bench shall recall any witnesses
who may have been examined and proceed to hear the case in manner provided by
this Code.
261. Power to invest Bench of Magistrates invested with less power. The
Provincial Government may 6[on the recommendation of the High Court] confer on
any bench of Magistrates invested with the powers of a Magistrate of the second
or third class power to try summarily all or any of the following offences:
(a) offences against the Pakistan Penal Cod, sections 277, 278, 279, 285, 286,
289, 290, 292, 293, 294, 336, 341, 352, 426, 447 and 504;
(b) offences against Municipal Acts, and the conservancy clauses of Police Acts
which are punishable only with fine or with imprisonment for a term not
exceeding one month with or without fine;
(c) abetment of any of the foregoing offences;
(d) an attempt to commit any of the foregoing offences, when such attempt is an
offence.
262. Procedure 7[prescribed in Chapter XX). 7[(1) In trial under this Chapter,
the procedure prescribed in Chapter XX shall be followed, except as hereinafter
mentioned.]
(2) Limit of imprisonment. No sentences of imprisonment for a term exceeding
three months shall be passed in the case of any conviction under this Chapter.
263. Record in cases where there is no appeal. In cases where no appeal lies,
the Magistrate on Bench of Magistrates need not record the evidence of the
witnesses of frame a formal charge; but he or they shall enter in such forth as
the Provincial Government may direct the following particulars:
(a) the serial number;
(b) the date of the commission of the offence;
(c) the date of the report or complaint;
(d) the name of the complainant (if any);
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and in cases
coming under clause (d), clause (e), clause (f) or clause (g) of sub section (1)
of Section 260 the value of the property in respect of which the offence has
been committed;
(g) the plea of the accused and his examination (if any);
(h) the finding, and, in the case of a conviction, brief statement of the
reasons therefor;
(i) the sentence or other final order; and
(j) the date on which the proceedings terminated.
8[264. Record in appealable cases. In every case tried summarily by a Magistrate
or Bench in which an appeal lies, such Magistrate or Bench shall record the
substance of the evidence and also the particulars mentioned in section 263 and
shall before passing any sentence, record a judgment to the case.]
265. Language of record and judgment. (1) Records made under section 263 and
judgments recorded under section 264 shall be written by the presiding officer,
either in English or in the language. of the Court, or, if the Court to which
such presiding officer is immediately subordinate so directs, in such officer's
mother tongue.
(2) Bench may be authorised to employ clerk. The Provincial Government may
authorize any Bench of Magistrates empowered to try offences summarily to
prepare the aforesaid record or judgment by means of an officer appointed in
this behalf by the Court to which such Bench is immediately subordinate, and the
record or judgment so prepared shall be signed by each member of such Bench
present taking part in the proceedings.
(3) If no such authorization be given, the record prepared by a member of the
Bench and signed as aforesaid shall be the proper record.
(4) If the Bench differ in opinion, any dissenting member may write a separate
judgment.
9[CHAPTER XXII A]
TRIALS BEFORE HIGH COURTS AND COURTS OF SESSION
265A. Trial before Court of Session to be conducted by Public Prosecutor. In
every trial before a Court o: Session, initiated upon a police report, the
prosecution shall be conducted by Public Prosecutor.
265B. Procedure in cases triable by High Courts and Courts of Session. The
following procedure shall be observed by the High Courts and the Courts of
Session in the trial of cases triable by the said Courts.
265C. Supply of statements and documents to the accused. (1) In all cases
instituted upon police report, copies of the following documents shall be
supplied free of cost to the accused not later than seven days before the
commencement of the trial, namely:
(a) the first information report;
(b) the police report;
(c) the statement of all witnesses recorded under sections 161 and 164; and
(d) the inspection note recorded by an investigation officer on his first visit
to the place of occurrence and the note recorded by him on recoveries made, if
any:
Provided that, if any part of a statement recorded under Section 161 or Section
164 is such that its disclosure to the accused would be inexpedient in the
public interest, such part of the statement shall be excluded from the copy of
the statement furnished to the accused.
(2) In all cases instituted upon a complaint in writing:
(a) the complainant shall
(i) state in the petition of complaint the substance of the accusation the names
of his witnesses and the list of evidence which he is likely to adduce at the
trial, and
(ii) within three days of the order of the Court under Section 204 for issue of
process to the accused, file in the Court for supply to the accused, as many
copies of the complaint and any other documents which he has filed with his
complaint as the number of the accused; and
(b) copies of the complaint and any other documents which the complainant has
filed therewith and the statements under Section 200 or Section 202 shall be
supplied free of cost to the accused not later than seven days before the
commencement of the trial.
265D. When charge is to be framed. If, after perusing the police report or, as
the case may be, the complaint, and all other documents and statements filed by
the prosecution, the Court is of opinion that there is ground for proceeding
with trial of the accused it shall frame in writing a charge against the
accused.
265E. Plea. (1) The charge shall be read and explained to the accused, and he
shall be asked whether he is guilty or has any defence to make.
(2) If the accused pleads guilty the Court shall record the plea, and may in its
discretion convict him thereon.
265F. Evidence for prosecution. (1) If the accused does not plead guilty or the
Court in its discretion does not convict him on his plea, the Court shall
proceed to hear the complainant (if any) and take all such evidence as may be
produced in support of the prosecution:
Provided that the Court shall not be bound to hear any person as complainant in
any case in which the complaint has been made by a Court.
(2) The Court shall ascertain from the public prosecutor or, as the case may be,
from the complainant, the names of any persons likely to b° acquainted with the
facts of the case and to be able to give evidence for the prosecution, and shall
summon such persons to give evidence before it.
(3) The Court may refuse to summon any such witness, if it is of opinion that
such witness is being called for the purpose of vexation or delay or defeating
the ends of justice. Such ground shall be recorded by the Court in writing.
(4) When the examination of the witness for the prosecution and the examination
(if any) of the accused are concluded, the accused sha11 be asked whether he
means to adduce evidence.
(5) If the accused puts in any written statement, the Court shall file it with
the record.
(6) If the accused, or any one of several accused, says that he means to adduce
evidence, the Court shall call on the accused to enter on his defence and
produce his evidence.
(7) If the accused, or any one or several accused, after entering on his
defence, applies to the Court to issue any process for compelling the attendance
of any witness for examination or the production of any document or other thing,
the Court shall issue such process unless it considers that the application is
made for the purpose of vexation or delay or defeating the ends of justice such
ground shall be recorded by the Court in writing.
265G. Summing up by prosecutor and defence. (1) In cases where the accused, or
any one of several accused, does not adduce evidence in his defence, the Court
shall on the close of the prosecution case and examination (if any) of the
accused, call upon the prosecutor to sum up his case whereafter the accused
shall make a reply.
(2) In cases where the accused, or any one of the several accused examines
evidence in his defence, the Court shall, on the close of the defence case, call
upon the accused to sum up the case whereafter the prosecutor shall make a
reply.
265H. Acquittal or conviction. (1) If in any case under this Chapter in which a
charge has been framed the Court finds the accused not guilty, it shall record
an order of acquittal.
(2) If in any case under this Chapter the Court finds the accused guilty, the
Court shall, subject to the provisions of Section 225 1, pass a sentence upon
him according to law.
265 I. Procedure in case of previous conviction. (1) In a case where, by reason
of a previous conviction the accused has been charged under section 221, sub
section (7) the Court, after finding the accused guilty of the offence charged
and recording a conviction shall record the plea of the accused in relation to
such part of the charge.
(2) If the accused admits that he has been previously convicted as alleged in
the charge, the Court may pass a sentence upon him according to law, and if the
accused does not admit that he has been previously convicted as alleged in the
charge the Court may take evidence in respect of the alleged previous
conviction, and shall record a finding thereon and then pass sentence upon him
according to law.
265J. Statement under section 164 admissible. The statement of a witness duly
recorded under section 164, if it was made in the presence of the accused and if
he had notice of it and was given an opportunity of cross examining the witness,
may, in the discretion of the Court, if such witness is produced and examined,
be treated as evidence in the case for all purposes subject to the provisions of
the Evidence Act, 1872 (II of 1872 ).
265K. Power of Court to acquit accused at any stage. Nothing in this Chapter
shall be deemed to prevent a Court from acquitting an accused at any stage of
the case, if after hearing the prosecutor and the accused and for reasons to be
recorded, it considers that there is no probability of the accused being
convicted of any offence.
COMMENTARY
Recording of the prosecution evidence was not a condition precedent for
acquitting an accused under S.249-A, Cr.P.C. or under 265-K, Cr.P.C.
The Legislature in its wisdom did not leave the question of the recording of the
evidence as a condition before taking action under either of the provisions. The
use of the expression “at any stage†of the case is indicative enough of the
intention that any such stage could be the very initial stage, after taking
cognizance or it could be a middle stage after recording some proceedings and/or
even, it could be later stage as well.9a
265L. Power of Advocate General to stay prosecution. At any stage of any trial
before a High Court under this Code, before the sentence is passed, the Advocate
General may, if he thinks fit, inform the Court on behalf of Government that he
will not prosecute the accused upon the charge, and thereupon all proceedings
against the accused shall be stayed, and he shall be discharged of from the
same. But such discharge shall not amount to an acquittal unless the Presiding
Judge otherwise directs.
265M. Time of holding sittings. For the exercise of its original criminal
jurisdiction, every High Court shall hold sitting on such days and at such
convenient intervals as the Chief Justice of such Court from time to time
appoints.
265N. Place of holding sittings. (1) The High Court shall hold its sittings at
the place at which it held them immediately before the commencement of the Law
Reforms Ordinance, 1972, or at such other place (if any) as the Provincial
Government may direct.
(2) But the High Court may, from time to time, with the consent of the
Provincial Government, hold sittings at such other places within the local
limits of its appellate jurisdiction as the High Court appoints.
(3) Such officer as the Chief Justice directs shall give prior notice in the
official Gazette of all sittings intended to be held for the exercise of the
original criminal jurisdiction of the High Court.
CHAPTER XXIII
OF TRIALS BEFORE HIGH COURTS AND COURTS
OF SESSION
266 336. [Omitted by Law Reforms Ordinance, 1972].
CHAPTER XXIV
GENERAL PROVISIONS AS TO INQUIRIES AND TRIALS
337. Tender of pardon to accomplice. (1) In the case of any offence triable
exclusively by the High Court or Court of Session or any offence triable
exclusively by the High Court or Court of Session, or any offence punishable
with imprisonment which may extend to ten years, or any offence punishable under
section 211 of the Pakistan Penal Code with imprisonment which may extend to
seven years, or any offence under any of the following sections of the Pakistan
Penal Code, namely, sections 216A, 369, 401, 435 and 477A, 10[officer-in-charge
of the prosecution in the district] may, at any stage of the investigation or
inquiry into, or the trial of the offence, with a view to obtaining the evidence
of any person supposed to have been directly or indirectly concerned in or privy
to the offence, tender a pardon to such person on condition of his making a full
and true disclosure of the whole of the circumstances within his knowledge
relative to the offence and to every other person concerted, whether, as
principal or abettor, in the commission thereof:
(1A) Every Magistrate who tenders a pardon under sub-section (1) shall record
his reason for so doing, and shall, on application made by the accused, furnish
him with a copy of such record;
11[Provided that no person shall be tendered pardon who is involved in an
offence relating to hurt or qatl without permission of the victim or, as the
case may be, of the heirs of the victim.]
1[(2) Every person accepting a tender under this section shall be examined as a
witness in the subsequently trial, if any.]
(2A) [Omitted by Ordinance XII of 1972].
(3) Such person, unless he is already on bail, shall be detained in custody
until the termination of the trial.
Omitted sub section (2A) is given below:
“(2A) In every case where a person has accepted a tender of pardon and has been
examined under sub section (2), the Magistrate before whom the proceedings are
pending shall, if he is satisfied that there are reasonable grounds for
believing that the accused is guilty of an offence, commit him for trial to the
Court of Session or High Court, as the case may be.â€
2[338. Power to grant or tender pardon. At any time before the judgment is
passed, the High Court or the Court of Session trying the case may, with the
view of obtaining on the trial the evidence of any person supposed to have been
directly or indirectly concerned in, or privy to, any such offence, tender, or
order the 1[officer-in-charge of the prosecution in the district] to tender, a
pardon on the same condition to such person:
3[Provided that no person shall be tendered pardon who is involved in an offence
relating to hurt or qatl without permission of the victim or, as the case may
be, of the heirs of the victim].
339. Trial of person to whom pardon has been tendered. (1) Where a pardon has
been tendered under section 337 or section 338, and the public prosecutor
certifies that in his opinion any person who has accepted such tender has,
either by wilfully concealing anything essential or by giving false evidence,
not complied with the condition on which the tender was made such person may be
tried for the offence in respect of which the pardon was so tendered, or for any
other offence of which he appears to have been guilty in connection with the
same matter:
Provided that such person shall not be tried jointly with any of the other
accused, and that he shall be entitled to plead at such trial that he has
complied with the conditions upon which such tender was made; in which case it
shall be for the prosecution to prove that such conditions have not been
complied with.
(2) The statement made by a person who has accepted a tender of pardon may be
given in evidence against him at such trial.
(3) No prosecution for the offence of giving false evidence in respect of such
statement shall be entertained without the sanction of the High Court.
4[339A. Procedure in trial of person under section 339. (1) The Court trying
under section 339 a person who has accepted a tender of pardon shall, before the
evidence of the witnesses for the prosecution is taken, ask the accused whether
he pleads that he has complied with the conditions on which the tender of the
pardon was made.
(2) If the accused does so plead, the Court shall record the plea and proceed
with the trial, and shall, before judgment is passed in the case, find whether
or not the accused has complied with the conditions of the pardon, and, if it is
found that he has so complied, the Court shall, notwithstanding anything
contained in this Code, pass judgment of acquittal.
340. Right of person against whom proceedings are instituted to be defended and
his competency to be a witness. (1) Any person accused of an offence before a
Criminal Court, or against whom proceedings are instituted under this Code in
any such Court, may of right be defended by a pleader.
5[(2) Any person accused of an offence before a Criminal Court or against whom
proceedings are instituted under this Code in any such Court shall be a
competent witness for the defence and may give evidence on oath in disproof of
the charges or allegations made against him or tried together with him at the
same trial:
Provided that he shall not be asked, and, if asked, shall not be required to
answer, any question tending to show that he has committed or been convicted of
any offence other then the offence with which he is charged or for which he is
being tried, or is of bad character, unless
(i) the proof that he has committed or been convicted of such offence is
admissible in evidence to show that he is guilty of the offence with which he is
charged or for which he is being tried; or
(ii) he has personally of by his pleader asked questions of any witness for the
prosecution with a view to establishing his own good character, or has given
evidence of his good character, or
(iii) he has given evidence against any other person charged with or tried for
the same offence.]
341. Procedure where accused does not understand proceedings. If the accused,
though not instance, cannot be made to understand the proceedings, the Court may
proceed with the 6[xxx] trial; and, in the case of a Court other than a High
Court, 1[xxx] if such trial results in a conviction, the proceedings shall be
forwarded to the High Court with a report of the circumstances of the case, and
the High Court shall pass thereon such order as it thinks fit.
342. Power to examine the accused. (l) for the purpose of enabling the accused
to explain any circumstances appearing in the evidence against him, the Court
may, at any stage of any inquiry or trial without previously warning the
accused, put such questions to him as the Court considers necessary, and shall
for the purpose aforesaid, question him generally on the case after the
witnesses for the prosecution have been examined and before he is called on for
his defence.
(2) The accused shall not render himself liable to punishment by refusing to
answer such questions or by giving false answers to them; but the Court 8[xxx]
may draw such inference from such refusal or answers as it thinks just.
(3) The answers given by the accused may be taken into consideration in such
inquiry or trial, and put in evidence for or against them in any other inquiry
into, or trial for, any other offence which such answers may tend to show he has
committed.
1[(4) Except as provided by sub section (2) of Sections 340, no oath shall be
administered to the accused.]
COMMENTARY
“The use of word “shall†in latter part of sub-section (1) of section 342
denotes that the provision in question is not permissive but imperative. Rather,
it is proscriptive in a way that if, it is found by the trial Court that any
circumstance appearing in the evidence against the accused gravitates towards
his conviction then the Court would not be competent to take the same into
account without questioning him on that point. Perusal of section 342(1) Cr.
P.C. further leads to the inference that the object of the examination of the
accused is, to give him an opportunity of explaining the circumstances, which
tend to incriminate him or likely to influence mind of the judge in arriving at
a conclusion adverse to him. Likewise, the addition of the words “for the
purpose of enabling the accused to explain any circumstances appearing in the
evidence against him†in section 342(1) further suggests that examination of the
accused under the section is not a mere formality but a mandate to enable the
accused to explain any circumstance appearing against him in the prosecution
evidence. To our mind, these words have been thoughtfully inserted therein to
ensure that the principle contained in Judicial Maxim “Audi Alteram Partem†is
fully complied with.â€1a
343. No influence to be used to induce disclosures: Except as provided in
sections 337 and 338, no influence, by means of any promise or threat or
otherwise shall be used town accused person to induce him to disclose or
withhold any matter within his knowledge.
344. Power to postpone or adjourn proceedings. (1) If, from the absence of a
witness or any other reasonable cause, it becomes necessary or advisable to
postpone the commencement of, or adjourn any inquiry or trial, the Court may, if
it thinks fit by order in writing, stating the reasons therefor, from time to
time, postpone or adjourn the same on such terms as it thinks fit, for such time
as it considers reasonable, and may by a warrant remand the accused if in
custody:
Remand. Provided that no Magistrate shall remand an accused person to custody
under this section for a term exceeding fifteen days at a time.
(2) Every order made under this section by a Court other than a High Court shall
be in writing signed by the Presiding Judge or Magistrate.
Explanation. Reasonable cause for remand. If sufficient evidence has been
obtained to raise a suspicion that the accused may have committed an offence,
and it appears likely that further evidence may be obtained by a remand, this is
a reasonable cause for a remand.
345. Compounding offences.--- (1) The offences punishable under the sections of
the Pakistan Penal Code specified in the first two columns of the table next
following may be compoundable by the persons mentioned in the third column of
that table:---
Offence Sections of the Pakistan Penal Code applicable. Persons by whom offence
may be compounded.
Uttering words, etc., with deliberate intent to wound the religious feelings of
any person. 298 The person whose religious feeling are intended to be wounded.
2[x x x x x x x x x x x x x x] xx x x x x x x x x x x x x x x x]
Wrongfully retraining or confining any person. 341, 342 The person restrained or
Confined.
Assault or use of criminal force 352,355,358 The person assaulted or to whom
criminal force is used.
3[x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x x]
Mischief, when the only loss or damage caused is loss or damage to a private
person. 426,47 The person to whom the loss or damage is caused.
Criminal trespass … 447 The person in possession of the property trespassed
upon.
House-trespass … … 448
Criminal breach of contract of service. 490,491,492 The person with whom the
Offender has contracted.
Adulter … … 497
Enticing or taking away or detaining with criminal intent a married woman. 498
The husband of the woman.
Defamation … … 500
Printing or engraving matter, knowing it to be defamatory. 501 The person
defamed.
Sale of printed or engraved substance containing defamatory matter, knowing it
to contain such matter. 502
Insult intended to provoke a breach of the peace. 504 The person insulted.
Criminal intimation except when the offence is punishable with imprisonment for
seven years.
506 The person intimated.
Act caused by making a person believe that he will be an object of divine
displeasure. 508 The person against whom offence was committed.
(2) The offence punishable under sections of the Pakistan Penal Code specified
in the first two columns of the table next following may, with the permission of
the Court before which any prosecution for such offence is pending be compounded
by the persons mentioned in the third column of that table:
4[Qatl-i-amd 302 By the heirs of the victim.
Qatl under ikrah-i-tam 303 Ditto
Qatl-i-amd not liable to qisas 308 Ditto
Qatl-i-Shibh-i-amd 316 Ditto
Qatl-i-khata 319 Ditto.
Qatl-i-Khata by rash or negligent driving. 320 Ditto
Qatl-i-bis-sabab 322 Ditto.
Attempt to commit qatl-i-amd. 324 The person against whom the Offence was
committed.
Itlaf-i-udw 334 The person to whom hurt is caused.
Itlaf-i-slahiyyat-i-udw 336 Ditto
Shajjah of any kind 337A Ditto
Jaifah 337D Ditto.
Ghayr-jaifah of any kind 337F Ditto
Hurt by rash or negligence driving. 337G Ditto.
Hurt by rush or negligence act. 337H Ditto.
Hurt by mistake. 337I Ditto.
Hurt by means of a poison. 337J Ditto.
Hurt to extort confession or to compel restoration of property 337K Ditto.
Other hurts. 337L Ditto.
Hurt not liable to qisas 337M Ditto.
Cases in which qisas for hurt cannot be enforced. 337N Ditto.
Isqati-i-hamal 338A The victim or the heirs of the victim, as the case may be.
Isqat-i-janin 338C The victim or the heirs of the victim, as the case may be.]
Offence Sections of the Pakistan Penal Code applicable. Persons by whom offence
may be compounded.
The original entries which have been repealed are given below.
Voluntarily causing hurt by dangerous weapons or means 324 The person to whom
hurt is caused
Voluntarily causing grievous hurt. 325 Ditto.
5[Voluntarily causing grievous hurt by dangerous weapons or means. 326 The
person to whom hurt is caused]
Causing hurt by doing an act so rashly and negligently as to endanger human life
or the personal safety of others. 337 Ditto.
Causing grievous hurt by doing an act so rashly and negligently as to endanger
to human life or the personal safety of others. 338 Ditto.
Wrongful confining a person for three days or more. 343 The person confined.
[Wrongfully confining a person for ten three days or more. 344 The person
confined]
Wrongfully confining a Person in secret. 346 The person confined.
Assault or criminal force is attempting wrongfully To confine a person. 357 The
person assaulted or to whom the force was used.
Dishonest misappropriation of property. 403 The owner of the property
misappropriated.
Cheating … … 417 The person cheated.
Cheating a person whose Interest the offender was bound, by law or by legal
contract, to protect … 418 Ditto.
Cheating by personation … 419 The person cheated.
Cheating and dishonestly inducing delivery of property or the making, alteration
of valuable security. 420 Ditto.
Mischief by injury to work of irrigation by wrongfully diverting water when the
only loss or damage caused is loss or damage to a private person. 430 The person
to whom the loss or damage is caused.
House-trespass to commit an offence (other than theft) punishable with
imprisonment. 451 The person in possession of the house trespassed upon.
Using a false trade or property mark. 482 The person to whom loss or Injury is
caused by such use.
Counterfeiting a trade or property mark used by another. 483 The person whose
trade or property mark is counterfeited.
Knowingly selling or exposing or possessing for sale or for trade or
manufacturing purpose goods marked with a counterfeit trade or property mark.
486 Ditto.
Marrying again during the lifetime of a husband or wife. 494 The husband or wife
of the person so marrying.
Uttering words or sounds or making gestures or exhibition any object intending
to insult the modesty of a woman or intruding upon the privacy of a woman. 509
The woman whom it is intended to insult or whose privacy is introduced upon.
(3) When any offence is compoundable under this section, the abetment of such
offence or an attempt to commit such offence (when such attempt is itself an
offence) may be compounded in like manner.
(4) When the person who would otherwise be competent to compound an offence
under this section is under the age of eighteen years or is an idiot or a
lunatic, any person competent to contract on his behalf may with the permission
of the Court compound such offence.
1[(5) When the accused has been convicted and an appeal is pending, on
composition for the offence shall be allowed without the leave of the Court
before which the appeal is to be heard.]
(5-A) A High Court acting in the exercise of its powers of revision under
section 439 2[and a Court of Sessions so acting under section 439-A] may allow
any person to compound any offence which he is competent to compound under this
section.
(6) The composition of an offence under this section shall have the effect of an
acquittal of the accused [with whom the offence has been compounded]
(7) No offence shall be compounded except as provided by this section.
3[346. Procedure of Magistrate in cases which he cannot dispose of.--- (1) If,
in the course of an inquiry or trial before a Magistrate in any district, the
evidence appears to him to warrant a presumption that the case is one which
should be tried, or sent for trial to the Court of Session or the High Court, by
some other Magistrate in such district, he shall stay proceedings and submit the
case, with a brief report explaining its nature, to the Sessions Judge or to
such other Magistrate, having Jurisdiction, as the Sessions Judge directs.
(2) The Magistrate to whom the case is submitted may, if so empowered, either
try the case himself r sent the case for trial to the Court of Session or the
High Court.]
4[347. Procedure when, after commencement of trial, Magistrate finds case should
be tried by Court of Session or High Court.--- If in any trial before a
Magistrate, before signing judgment, it appears to him at any stage of the
proceedings that the case is one which ought to be tried by the Court of Session
or High Court, he shall send the case to the Court of Session or High Court, for
trial.]
348. Trial of persons previously convicted of offences against coinage, stamp
law or property.--- (1) Whoever, having been convicted of an offence punishable
under Chapter XII or Chapter XVII of the Pakistan Penal Code with imprisonment
for a term of three years or upwards, is again accused of any offence punishable
under either of those Chapters with imprisonment for a term of three years or
upwards, shall, if the Magistrate before whom the case is pending is satisfied
that there are sufficient grounds 5[for the trial of the accused by the Court of
Session or High Court, as the case may be, send the accused for trial to such
Court] unless the Magistrate is competent to try case and is of opinion that he
can himself pass an adequate sentence if the accused is convicted:
6[***]
7[(2) When any person is sent for trial to the Court of Session or High Court
under sub-section (1), any other person accused jointly with him in the trial
shall be similarly sent for trial.]
349. Procedure when Magistrate cannot pass sentence sufficiently severs.--- (1)
Whenever a Magistrate of the second or third class, having jurisdiction, is of
opinion after hearing the evidence for the prosecution and the accused, that the
accused is guilty, and that he ought to receive a punishment different in kind
from more severe than, that which such Magistrate is empowered to inflict, or
that he ought to be required to execute a bond under 106, he may record the
opinion and submit his proceedings, and forward the accused 8[to a Magistrate of
the first class specially empowered in this behalf by the Provincial
Government].
(1A) When more accused than one are being tried together and the Magistrate
considers it necessary to proceed under sub-section (1) in regard to any of such
accused, he shall forward all the accused who are in his opinion guilty to the
District [Magistrate empowered under sub-section (1)].
(2) The Magistrate to whom the proceedings are submitted may, if he thinks fit,
examine the parties and recall and examine any witness who has already given
evidence in the case and may call for and take any further evidence, and shall
pass such judgment, sentence or order in the case as he thinks fit and as is
according to law:
Provided that he shall not inflict under section 32 and 33.
9[350. Conviction on evidence partly recorded by one presiding officer and
partly by another.--- (1) Whenever any Sessions Judge or Magistrate, after
having heard and recorded the whole or any part of the evidence in an inquiry or
a trial, ceases to exercise jurisdiction therein, in and is succeeded by another
Sessions judge or Magistrate, who has exercised such jurisdiction, the Sessions
Judge or Magistrate, so succeeding, may act on the evidence so recorded by his
predecessor, or partly recorded by his predecessor and partly recorded by
himself or he may re-examine the witnesses and recommence the inquiry or trial:
Provided that--
(a) where the conviction was held before a Sessions Judge, the High Court, and
(b) where the conviction was held before a Magistrate, the High Court or the
Court of Session,
may, whether there be an appeal or not, set aside any conviction passed on
evidence, not wholly recorded by the Sessions Judge or Magistrate before whom
the conviction was held, if such Court is of opinion that the accused has been
materially prejudiced thereby, and may order a new inquiry or trial.]
(2) Nothing in this section applies to cases in which proceedings have stayed
under section 346 or in which proceedings have been submitted to a 1[Magistrate
specially empowered] under section 349.
(3) When a case is transferred under the provisions of this Code from one
Magistrate to another, the former shall be deemed to cease to exercise
jurisdiction therein, and to be succeeded by the latter within the meaning of
sub-section (1).
350-A. Changes in constitution of Benches.--- No order or judgment of a Bench of
Magistrate shall be invalid by reason only of a change having occurred in the
constitution of the Bench in any case in which the Bench by which such order or
judgment is passed is dully constituted under section 15 and 16, and the
Magistrates constituting the same have been present on the Bench throughout the
proceedings.
351. Detention of offenders attending Court.--- (1) Any person attending a
Criminal Court although not under arrest or upon a summons, may be detained by
such Court for the purpose of inquiry into or trial or any offence of which
Court can take cognizance and which, from the evidence, may appear to have been
arrested or summoned.
(2) When the detention takes place 2[x x x x] after a trial has been begun the
proceedings in respect of such person shall be commenced afresh, and the
witnesses re-heard.
352. Courts to be open.--- The place in which any Criminal Court is held for the
purpose of inquiring into trying any offence shall be deemed an open Court, to
which the public generally may have access, so far as the same can conveniently
contain them:
Provided that the Presiding Judge or Magistrate may, if he thinks fit, order at
any stage of any inquiry into, or trial of, any particular case, that the public
generally, or any particular person shall not have access to, or be or remain in
the room or building used by the Court.
CHAPTER XXV
OF THE MODE OF TAKING AND RECORDING EVIDENCE
IN INQUIRIES AND TRIALS
353. Evidence to be taken in presence of accused.--- Except as otherwise
expressly provided, all evidence taken under 3[Chapters XX, XXI, XXII and
XXII-A] shall be taken in the presence of the accused, or, when his personal
attendance is dispensed with, in presence of his pleader,
354. Manner of recording evidence.--- In inquiries and trial (other than summary
trials) under this Code by or before a Magistrate or Sessions Judge, the
evidence of the witnesses shall be recorded in the following manner.
355. Record in trial of certain cases by first and second Class Magistrate.---
(1) 4[In cases tried under Chapter XX or Chapter XXII] by a Magistrate of the
first or second class and in all proceedings under section 514 (if not in the
course of a trial), the Magistrate shall make a memorandum of the substance of
the evidence of each witness as the examination of the witness proceeds.
(2) Such memorandum shall be written and signed by the Magistrate with his own
hand, and shall form part of the record.
(3) If the Magistrate is prevented from making a memorandum as above required,
he shall record the reason of his inability to do so and shall cause memorandum
to be made in writing from his dictation in open Court, and shall sign the same,
and such memorandum shall part of the record.
356. Record in other cases.--- (1) 5[In trials before Courts of Session and in
inquiries under Chapter XII] the evidence of each witness shall be taken down in
writing in the language of the Court by the Magistrate or Sessions Judge, or in
his Presence and hearing and under his personal direction and superintendence
and shall be signed by the Magistrate or Sessions Judge.
(2) Evidence given in English. When the evidence of such witness is given in
English the Magistrate or Sessions Judge may take it down it that language with
his own hand, and, unless the accused is familiar with English, or the language
of the Court is English, an authenticated translation of such evidence in the
language of the Court shall form part of the record.
(2A) When the evidence of such witness is given in any other language, not being
English, than the language of the Court, the Magistrate or Sessions Judge may
take it down in that language with his own hand, or cause it to be taken in that
language in his presence and hearing and under his personal direction and
superintendence, and an authenticated translation of such evidence in the
language of the Court or in English shall form part of the record.
(3) Memorandum when evidence not taken down by the Magistrate or Judge himself.
In cases in which the evidence is not taken down in writing by the Magistrate or
Sessions Judge he shall, as the examination of each witness proceeds, make a
memorandum of the substance of what such witness deposes; and such memorandum
shall be written and signed by the Magistrate or Sessions Judge with his own
hand, and shall form part of the record.
(4) If the Magistrate or Sessions Judge is prevented from making a memorandum as
above required he shall record the reason of his inability to make it.
357. Language of record of evidence---(1) The Provincial Government may direct
that in any district or part of a district, or in proceedings before any Court
of Session or before any Magistrate or class of Magistrates the evidence of each
witness shall, in the cases referred to in section 356, be taken down by the
Sessions Judge or Magistrate with his own hand and in his mother-tongue, unless
he is prevented by any sufficient reason from take taking down the evidence of
any witness, in which case he shall record the reason of his inability to do so
and shall cause the evidence to be taken down in writing from his dictation in
open Court.
(2) The evidence so taken down shall be signed by the Sessions Judge or
Magistrate and shall form part of the record:
Provided that the Provincial Government may direct the Session Judge or
Magistrate to take down the evidence in the English language or in the language
of the Court, although such language is not his mother-tongue.
358. Option to Magistrate in cases under section 355.---In cases of the kind
mentioned in section 355, the Magistrate may, if he thinks fit, take down the
evidence of any witness in the manner provided in section 356, or, if within the
local limits of the jurisdiction of such Magistrate the Provincial Government
has made the order referred to in section 357, in the manner provided in the
section.
359. Mode of recording evidence under section 356 or section 357.---(1) Evidence
taken under section 356 or section 357 shall not ordinarily be taken down in
form of question and answer, but in the form of a narrative.
(2) The Magistrate or Sessions Judge may, in his discretion take down, or cause
to be taken down, any particular question and answer.
360. Procedure in regard to such evidence when completed.---(1) As the evidence
of each witness taken under section 356 or section 357 is completed, it shall be
read over to him in the presence of the accused, if in attendance, or of his
pleader, if he appears by pleader, and shall, if necessary, be corrected.
(2) If the witness denies the correctness of any part of the evidence when the
same is read over to him, the Magistrate of Sessions Judge may, instead of
correcting the evidence, make a memorandum thereon of the objection made to it
by the witness, and shall add such remarks as he thinks as he thinks necessary.
(3) If the evidence is taken down in a language different from that in which it
has been given and the witness does not understand the language in which it is
taken down, the evidence so taken down shall be interpreted to him in the
language in which it was given, or in language which he understands.
361. Interpretation of evidence to accused or his pleader.---(1) Whenever any
evidence is given in a language not understood by the accused, and he is present
in person it shall be interpreted to him in open Court in a language understood
by him.
(2) If he appears by pleader and the evidence is given in a language of the
Court, and not understood by the pleader, it shall be interpreted to such
pleader in that language.
(3) When documents are put in the purpose of formal proof, it shall be in the
discretion of the Court to interpret as much thereof as appears necessary.
363. Remarks respecting demeanour of witness.--- When a Sessions Judge or
Magistrate has recorded the evidence of a witness, he shall also record such
remarks (if any) as he thinks material respecting the demeanour of such witness
whilst under examination.
364. Examination of accused how recorded.--- (1) Whenever the accused is
examined by any Magistrate, or by any Court other than a High Court the whole of
such examination, including every question put to him and every answer given by
him, shall be recorded in full, in the language of the Court or in English; and
such record shall be shown or read to him or, if he does not understand the
language in which it is written, shall be interpreted to him in a language which
he understands, and he shall be at liberty to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth the
record shall be signed by the accused and the Magistrate or Judge of such Court,
and such Magistrate or Judge shall certify under his own hand that the
examination was taken in his presence and hearing and that the record contains a
full and true account of the statement made by the accused.
(3) In a case in which the examination of the accused is not recorded by the
Magistrate or Judge himself, he shall be bound, as the examination proceeds, to
make memorandum thereof in the language of the Court or in English, if he is
sufficiently acquainted with latter language; and such memorandum shall be
written and signed by the Magistrate or Judge with his own hand and shall be
annexed to the record. If the Magistrate or Judge is unable to make memorandum
as above required, he shall record the reason of such inability.
(4) Nothing in this section shall be deemed to apply to the examination of an
accused person under section 263.
COMMENTARY
The administration of an oath of affirmation is thus opposed to public policy
and any infringement of the provision prohibiting the Court from putting him
under oath is an illegality which cannot be cured on any principle of consent,
waiver or estoppel.5a
Deaf and dumb persons. Interpretation to such persons in language of signs.
Expert or close relations of such persons not always necessary to be capable of
understanding such signs. Individual defence of such person had to be kept in
view. Duty of trial Court to take adequate measures in such situation. No
general presumption can be raised that unless found otherwise provisions of S.
361 read with S. 364, Cr.P.C. regarding interpretation would be presumed to have
been contravened.5b
Confession. Confession recorded on oath should be excluded.5a
Failure to record statement of accused in his own hand is a curable
irregularity.5c
365. Record of evidence in High Court.--- Every High Court shall from time to
time, by general rule, prescribe the manner in which evidence shall be taken
down in cases coming before the Court and the evidence shall be taken down in
accordance with such rule.
CHAPTER XXVI
OF THE JUDGEMENT
366. Mode of delivering judgment.---(1) The judgment in every trial in any
Criminal Court of original jurisdiction shall be pronounced or the substance of
such judgment shall be explained,--
(a) in open Court either immediately after the termination of the trial an at
some subsequent time of which notice shall be given to the parties or their
pleaders, and
(b) in the language of the Court, or in some other language which the accused or
his pleader understands:
Provided that the whole judgment shall be read out by the Presiding Judge, if he
is requested so to do either by the prosecution or the defence.
(2) The accused shall, if in custody, be brought up, or, if not in custody, be
required by the Court to attend, to hear judgment delivered, except where his
personal attendance during the trial has been dispensed with and the sentence’s
one of the fine only or he is acquitted, in either of which cases it may be
delivered in the presence of his pleader.
(3) No judgment delivered by any Criminal Court shall be deemed to be invalid by
reason only of the absence of any party or his pleader on the day from the place
notified for the deliver thereof, or of any omission to serve, or defect in
serving, on the parities, or any their pleaders, or any of them, the notice of
such day and place.
(4) Nothing in this section shall be construed to limit in any way the extent of
the provisions of section 537.
COMMENTARY
Judgment. If judgment is delivered in the absence of any party, it does not
become invalid. The judgment referred to in Sec. 369 means judgment which has
been delivered in accordance with Sec. 366. “Signing†referred to in Sec. 369 is
the signing in open Court and not at home. Simple writing and signing of
judgment did not operate as a bar to further proceedings. 5d
When High Court did not give reasons for disagreeing with Sessions Judge,
Supreme Court examined evidence to see how the judgment of Sessions Judge was
wrong. 5e
Observations made against persons not on trial are not to be considered judicial
findings.5f
Where judgment of Sessions Judge was a verbatim cope of judgment of trial court,
the judgment was held not proper.5g
367. Language of judgment: Contents of judgment.---(1) Every such judgment
shall, except as otherwise expressly provided by this Code, be written by the
presiding officer of the Court or from the dictation of such presiding officer
in the language of the Court, or in English; and shall contain the points for
determination, the decision thereon and the reasons for the decision; shall be
dated and signed by the presiding officer in open Court at the time of
pronouncing it and with his own hand every page of such judgment shall be signed
by him.
(2) It shall specify the offence (if any) of which, and be section of the
Pakistan Penal Code or other law under which the accused is convicted, and
punishment to which he is sentenced.
(3) Judgment in alternative. When the conviction is under the Pakistan Penal
Code and it is doubtful under which of two section, or under which of two parts
of the same section of that Code the offence falls, the Code shall distinctly
express the same, and pass judgment in the alternative.
(4) If it be a judgment of acquittal, it shall state the offence of which the
accused is acquitted and direct that he set at liberty.
(5) If the accused is convicted of an offence punishable with death, and the
Court sentences him to any punishment other than death, the Court shall in its
judgment state the reason why sentence of death was not passed.]
[*** Proviso Omitted by Ord. XII of 1972]
(6) For the purposes of this section, and order under section 118 or section
123, sub-section (3), shall be deemed to be a judgment.
368. Sentence of death.---(1) When any person is sentenced to death, sentence
shall direct that he be hanged by the neck till he is dead.
(2) [Omitted by Amendment Act, XXV of 1974].
369. Court not to alter judgment.--- Save as otherwise provided by this Code or
by any other law for the time being in force of a High Court by the Letters
Patent of such High Court no Court when it has signed its judgment shall alter
or review the same, except to correct a clerical error.
370. [Presidency Magistrate Judgment] [Omitted by A.O., 1949].
371. Copy of judgment, etc. to be given to accused.---3[(1) In every case where
the accused is convicted of an offence, a copy of the judgment shall be given to
him at the time of pronouncing the judgment, or when the accused so desires, a
translation of the judgment in his own language, if practicable, or in the
language of the Court, shall be given to him without delay, Such copy or
translation shall be given free of cost:
Provided that this sub-section shall not apply to cases tried summarily or where
the accused is convicted of an offence under any law other than the Pakistan
Penal Code.]
(2) [Omitted by Law Reforms Ordinance, 1972].
(3) When the accused is sentenced to death by a Session Judge, such Judge shall
further inform him of the period within which, if he wishes to appeal, his
appeal should be preferred.
372. Judgment when to be translated.--- The original judgment shall be filed
with the record of proceedings, and, where the original is recorded in a
different language from that of the Court and the accused so requires, a
translation thereof into the language of the Court shall be added to such
record.
373. Court of Session to send copy of finding and sentence to
3[Officer-in-charge of the prosecution].--- In cases tried by the Court of
Session, the Court shall forward a copy of its finding and sentence (if any) to
the 3[officer-in-charge of prosecution in the district] within the local limits
of whose jurisdiction the trial was held.
CHAPTER XXVII
OF THE SUBMISSION OF SENTENCE OF
CONFIRMATION
[Note.--- The provisions relating to confirmation of sentence of death shall
apply, mutates mutandis, to the confirmation of a sentence under 4Prohibition
(Enforcement of Hadd) Order, 1979 5Offences Against Property (Enforcement of
Hudood) Ordinance, 1979, 6Offence of Zina (Enforcement of Hudoon) Ordinance,
1979 and 1Offence of Qazf (Enforcement of Hadd) Ordinance, 1979.
374. Sentence of death to be submitted by Court of Session.--- When the Court of
Session passes sentence of death, the proceedings shall be submitted to the High
Court and the sentence shall not be executed unless it is confirmed by the High
Court.
375. Power to direct further inquiry to be made or additional evidence to
taken.--- (1) If when such proceedings are submitted, the High Court thinks that
a further inquiry should be made into, or additional evidence taken upon, any
point bearing upon the guilt or innocence of the convicted person, it may make
such inquiry to take such evidence itself, or direct it to be made or taken by
the Court of Session.
2[(2) Unless the High Court otherwise directs, the presence of the convicted
person may be dispensed with when such inquiry is made or such evidence it
taken.]
(3) When the inquiry and the evidence (if any) are not made and taken by the
High Court, the result of such inquiry and the evidence shall be certified to
such Court.
376. Power of High Court to confirm sentence or annul conviction.--- In any case
submitted under section 374 3[***] the High Court:
(a) may confirm the sentence, or pass any other sentence warranted by law; or
(b) may annul the conviction and convict the accused of any offence of which the
Sessions Court might have convicted him or order a new trial on the same or an
amended charge; or
(c) may acquit the accused person:
Provided that no order of confirmation shall be made under this section until
the person allowed for preferring an appeal has expired, or, if an appeal is
presented within such period, until such appeal is disposed of.
377. Confirmation of new sentence to be signed by two Judges.--- In every case
so submitted, the confirmation of the sentence, or any new sentence or order
passed by the High Court, shall when such Court consists of two or more Judges,
by made, passed and signed by at least two of them.
378. Procedure in case of difference of opinion.--- When any such case is heard
before a bench Judges and such Judges are equally divided, in opinion, the case,
with their opinions thereon, shall be laid before another Judge, and such Judge,
after such hearing as he thinks fit, shall deliver his opinion and the judgment
or order shall follow such opinion.
379. Procedure in case, submitted to High Court for confirmation.--- In case
submitted by the Court of Session of the High Court for the confirmation of
sentence of death, the proper officer of the High Court shall without delay,
after the order of confirmation or other order has been made by High Court, send
a copy of the order under the seal of the High Court and attested with his
official signature, to the Court of Session.
380. [Rep. by Probation of Offenders Ordinance, XLV of 1960 (w.e.f. 1.7.1961].
CHAPTER XXVII
OF EXECUTION
381. Execution of order passed under section 376.--- When a sentence of death
passed by a Court of Session is submitted to the High Court for confirmation,
such Court of Session shall, on receiving the order of confirmation or other
order of the High Court thereon, cause such order to be carried into effect by
issuing a warrant or taking such other steps as may by necessary] 4[:]
5[Provided that the sentence of death shall not be executed if the heirs of the
deceased pardon the convict or enter into a compromise with him even at the last
moment before execution of the sentence to the postponed, and may, if it thinks
fit, commute the sentence to 6[imprisonment] for life.
382. Postponement of capital sentence on pregnant woman.--- If a woman sentenced
to death is found to be pregnant, the High Court shall order the execution of
the sentence to be postponed, and may, if it thinks fit, commute the sentence to
6a[imprisonment] for life.
7[382A. Postponement of execution of sentence of imprisonment under section 476
or for a period of less than one year.--- notwithstanding anything contained in
section 383 or 391, where the accused:---
(a) is awarded any sentence of imprisonment under section 476, or
(b) is sentenced in cases other than those provided for in section 381, to
imprisonment whether with or without fine or whipping for a period of less than
one year,
the sentence shall not, if the accused furnished bail to the satisfaction of the
Court for his appearance at such time and place as the Court may direct, be
executed, until he expiry of the period prescribed for making an appeal against
such sentence, or, if an appeal is made within that time, until the sentence of
imprisonment is confirmed by the Appellate Court, but the executives soon as
practicable after the expiry of the period prescribed for making an appeal, or,
in case of an appeal, as soon as practicable after the receipt of the order of
the Appellate Court confirming the sentence.
382B. Period of detention to the considered while awarding sentence of
imprisonment.--- Where a Court decides t pass a sentence of imprisonment on an
accused for an offence, it 8[shall] take into consideration the period, if any
during which such accused was detained in custody for such offence.]
COMMENTARY
Compromise. Sentence. Period spent in Jail by accused as under-trial prisoner
from date of arrest till date of announcement of sentence of imprisonment for
life. Held, to be taken into consideration by relevant authorities while
computing period of total imprisonment.8a
382-B --- Determining factor for grant or refusal of Benefit: - Nature and kind
of the offence, for which an accused is charged, is not the determining factor
for the grant or refusal of the benefit as Law Makers have themselves taken care
of the situation by providing separate and appropriate sentences for different
offences. --- A bare perusal of section 382-B Cr.P.C, would lead to the
inference that primarily it has been enacted keeping in view “the period during
which an accused is detained in custody as under-trial prisoner for such
offence†and the length of sentence of imprisonment inflicted on him in respect
of any offence has to be treated as reduced by “such periodâ€. It may be
mentioned here that in the provision, as it was originally promulgated, in place
of the underlined “shall†the word “may†was used. However, it was substituted
by the word “shall†vide ordinance LXXI of 1979 i.e. Criminal Procedure Code
(Second Amendment) Ordinance, 1979. In our view the word “may†used in the
provision was thoughtfully substituted by the word “shall†so that discretion
with regard to its application is not left with the Court.8b
9382C. Scandalous or false and frivolous pleas to be considered in passing
sentence.--- In passing a sentence on an accused for any offence, a Court may
take into consideration any scandalous or false and frivolous plea taken in
defence by him or on his behalf.]
383. Execution of sentence of imprisonment for life or imprisonment in other
case.--- Where the accused is sentenced to 1[imprisonment for life] or
imprisonment in cases other than those provided for section 381 2[and section
382-A] the Court passing the sentence shall forthwith forward a warrant to the
jail in which he is, or is to be confined, and, unless the accused in already
confined in such jail, shall forward him to such jail, with the warrant.
384. Direction of warrant for execution.--- Every warrant for the execution of
sentence of imprisonment shall be directed to the officer of the jailor or other
place in which the prisoner is or is to be, confined.
385. Warrant with whom to be lodged.--- When the prisoner is t be confined in a
jail, the warrant shall be lodged with the jailor.
386. Warrant for levy of fine.---- (1) Wherever an offender has been sentenced
to pay a fine, the Court passing the sentence may take action for the recovery
of the fine in either or both of the flowing ways, that is to say, it may:---
(a) issue a warrant for the levy of the amount by attachment and sale of any
movable property belonging to the offender;
(b) issue a warrant to the 1[District Officer (Revenue)] authorizing him to
realize he amount by execution according to civil process against the movable or
immovable property, or both, of the defaulter;
Provided that, if the sentence directs that in default of payment of the fine
the offender shall be imprisonment, an dif such offender has undergone the whole
of such imprisonment in default, no Court shall issue such warrant 3[***].
(2) The Provincial Government may take rules regulating the manner in which
warrant under sub-section (1), clause (a), are to be executed, and for the
summary determination of any claim made by any person other than the offender in
respect of any property attached in execution of such warrant.
(3) Where the Courts issue a warrant to the 1[District Officer (Revenue)] under
sub-section (1), clause (b), such warrant shall be deemed to be a decree, and
the Collector to be the decree-holder, within the meaning of the Code of Civil
Procedure, 1908, and the nearest Civil Court by which any decree for a like
amount could be executed shall, for the purposes of the said Code, be deemed to
be the Court which passed the decree, and all the provisions of that Code as to
execution of decree shall apply accordingly:
Provided that no such warrant shall be executed by the arrest or detention in
prison of the offender.
387. Effect of such warrant.--- A warrant issued under section 386, sub-section
91), clause (a), by any Court may be executed within the local limits of the
jurisdiction of such Court, and it shall authorize the attachment and sale of
any such property without such limits, when endorsed by the 2[***] Magistrate
within the local limits of whose jurisdiction such property is found.
388. Suspension of execution of sentence of imprisonment.--- (1) When an
offender has been sentenced to fine only and to imprisonment in default of
payment of the fine, and the fine is not paid forthwith, the Court may:---
(a) order that the fine shall be payable either in full and before a date not
more than thirty days from the date of the order, or in tow or three
instalments, of which the first shall be payable on or before a date not more
than thirty days from the date of the order and the other or others at an
interval, or at intervals, as the case may be, of not more than thirty days, and
(b) suspend the execution of the sentence of imprisonment and release the
offender, on the execution by the offender of a bond, with or without
securities, as the Court thinks fit, conditioned for his appearance before the
Court on the date or dates on or before which payment of the fine or the
instalments thereof, as the case may be, is to be made; and if the amount of the
fine or of any instalment, as the case may be, is not realized on or before the
latest date on which it is payable under the order, the Court may direct the
sentence of imprisonment to be carried into execution at once.
(2) The provisions of sub-section (1) shall be applicable also in any case in
which an order for the payment of money has been made on non-recovery of which
imprisonment may be awarded and the money is not paid forthwith; and, the person
against whom the order has been made, on being required to enter into a bond
such as is referred to in that sub-section, fails to do so, the Court may at
once pass sentence of imprisonment.
389. Who may issue warrant.--- Every warrant for the execution of any sentence
may be issued either by the Judge or Magistrate who passed the sentence, or by
this successor-in-office.
390. Execution of sentence of whipping only.--- When the accused is sentenced to
whipping only, the sentence shall subject to the provisions of section 391 be
executed at such place and time as the Court may direct.
391. Execution of sentence of whipping in addition to imprisonment.--- (1) When
the accused:---
(a) is sentenced to whipping only and furnished bail to the satisfaction of the
Court for his appearance at such time and place as the Court may direct, or
(b) is sentenced to whipping in addition to imprisonment,
the whipping shall not be inflicted until fifteen days from the date of the
sentence, or, if an appeal is made within that time, until the sentence is
confirmed by the appellate Court, but the whipping shall be inflicted as soon as
practicable after the expiry of the fifteen days or in case of an appeal, as
soon as practicable after the receipt of the order of the appellate Court
confirming the sentence.
(2) The whipping shall be inflicted in the presence of the officer-in-charge of
the jail, unless the Judge or Magistrate orders it to be inflicted in his own
presence.
(3) No accused person shall be sentenced to whipping in addition to imprisonment
when the term of imprisonment to which he is sentenced is less than three
months.
[Note.--- The provisions of sub-section (3) of section 391 shall apply the
respect of the punishment of whipping awarded under 4Prohibition (Enforcement of
Hadd) Order, 1979, 5Offences Against Property (Enforcement of Hudood) Ordinance,
1979, 6Offence of Zina (Enforcement of Hudood) Ordinance, 1979, and 7Offence of
Qazf (Enforcement of Hadd) Ordinance, 1979.]
392. Mode of inflicting punishment.--- (1) In the case of a person of or over
sixteen years of age whipping shall be inflicted with a light rattan not less
than half an inch in diameter, in such mode and on such part of the person, as
the Provincial Government directs; and, in the case of a person under sixteen
years of age, it shall be inflicted in such mode, and on such part of the
person, and with such instruments, as the Provincial Government directs.
(2) Limits of number of stripes.--- In no case shall such punishment exceed
thirty stripes and, in the case of a person under sixteen years of age, it shall
not exceed fifteen stripes.
393. Not to be executed by instalments: Exemptions.--- No sentence of whipping
shall be executed by instalments and none of the following persons shall be
punishable with whipping, namely:---
(a) females;
(b) males sentenced to death or to 1[imprisonment for life] or to imprisonment
for more than five years;
(c) males whom the Court considers to be more than forty-five years of age.
394. Whipping not to be inflicted if offender not in fit state of health.--- (1)
The punishment of whipping shall not be inflicted unless a medical officer, if
present, certifies or if there is not a medical officer present, unless it
appears to the Magistrate or officer present that the offender is in a fit state
of health to undergo such punishment.
(2) Stay of execution. If during the execution of a sentence of whipping, a
medical officer certifies, or it appears to the Magistrate or officer present,
that the offender is not in a fit sale of health to undergo the sentence, the
whipping shall be finally stopped.
395. Whipping not to be inflicted if offender not in fit state of health.--- (1)
In any case in which, under section 394, a sentence of whipping is, wholly or
partially, prevented from being executed, the offender shall be kept in custody
till the either remit such sentence or sentence the offender in lieu of whipping
or in lieu of so much of the sentence of whipping as was not executed, to
imprisonment for any term not exceeding twelve months, or to a fine not
exceeding five hundred rupees, which was be in addition to any other punishment
to which he may have been sentenced for the same offence.
(2) Nothing in this section shall be deemed to authorize any Court to inflict
imprisonment for a term or a fine of an amount exceeding that to which the
accused is liable by law, or that which the said Court is competent to inflict.
396. Execution of sentences on escaped convicts.--- (1) When sentence is passed
under this Code on an escaped convict, such sentence, if of death, fine or
whipping shall, subject to the provisions hereinbefore contained, take effect
immediately, and, if of imprisonment, or 2[imprisonment for life] shall take
effect according to the following rules, that is to say:---
(2) If the now sentence is severer in its kind than the sentence which such
convict was undergoing when he escaped, the new sentence shall take effect
immediately.
(3) When the new sentence in not severer in its kind than the sentence the
convict was undergoing when he escaped; the new sentence shall take effect after
he has suffered imprisonment 3[***] for a furhte period equal to that which, at
the time of his escape, remained un-expired of his former sentence.
Explanation. For the purpose of this section:---
(a) [Omitted by Act XXV of 1974].
(b) a sentence of imprisonment with solitary confinement shall be deemed severer
than a sentence of the same description of imprisonment without solitary
confinement; and
(c) a sentence of rigorous imprisonment shall be deemed severer than a sentence
of simple imprisonment with or without solitary confinement.
4[397. Sentence on offender already sentenced for another offence.--- When a
person already undergoing a sentence of imprisonment or imprisonment for life is
sentenced to imprisonment, or imprisonment for life, such imprisonment, or
imprisonment for life shall commence at the expiration of the imprisonment, or
imprisonment for life to which he has been previously sentenced, unless the
Court directs that the subsequent sentence shall run concurrently with such
sentence:
Provided that where a person who has been sentenced to imprisonment by an order
under section 123 in default of furnishing security is, whilst undergoing such
sentence, sentenced to imprisonment for an offence committed prior to the making
of such order, the latter sentence shall commence immediately.]
398. Saving as to sections 396 and 397.--- (1) Nothing in section 396 shall be
held to excuse any person from any part of the punishment to which he is liable
upon his former or subsequent conviction.
(2) When an award of imprisonment in default of payment of a fine is annexed to
a substantive sentence of imprisonment or to a sentence of 5[imprisonment for
life] and the person undergoing the sentence is after its execution to undergo a
further substantive sentence, or further substantive sentences, of imprisonment,
or 6[imprisonment for life] effect shall not be given to the award of
imprisonment of default of payment of the fine until the person has undergone
the further sentence or sentences.
399. Confinement of youthful offenders in reformatories.--- (1) When any person
under the age of fifteen years is sentenced by any Criminal Court to
imprisonment for any offence, the court may direct that such person, instead of
being imprisoned in a criminal jail, shall be confined in any reformatory
established by the Provincial Government as a fit place for confinement, in
which there are means of suitable discipline and obey such rules as the
Provincial Government prescribes with regard to the discipline and training of
persons confined therein.
(2) All persons confined under this section shall be subject to the rules so
prescribed.
(3) This section shall not apply to any place which the Reformatory Schools Act,
1897, is for the time being in force.
400. Return of warrant on execution of sentence.--- When a sentence has been
fully executed, the officer executing it shall return the warrant to the Court
form which it issued, with an endorsement under his hand certifying the manner
in which the sentence has been executed.
CHAPTER XXIX
OF SUSPENSIONS, REMISSION AND
COMMUTATIONS OF SENTENCES
[Note.--- The provisions of Chapter XXIX shall not apply:---
(i) in respect of punishment awarded under Article 8, 7Prohibition (Enforcement
of Hadd) Order, 1979.
(ii) in respect of punishments awarded under section 9 and 17, 8Offences Against
Property (Enforcement of Hudood) Ordinance, 1979.9
(iii) in respect of punishments awarded under section 5 or section 6, Offence of
Zina (Enforcement of Hudood) Ordinance, 1979.
(iv) in respect of punishment awarded under section 7, 1Offence of Qazf
(Enforcement of Hadd) Ordinance, 1979.
401. Power to suspend or remit sentences.--- (1) When any person has been
sentenced to punishment for an offence, the Provincial Government may at any
time without conditions or upon any conditions which the person sentenced
accepts, suspend the execution of his sentence or remit the whole or any part of
the punishment to which he has been sentenced.
(2) Whenever an application is made to the Provincial Government for the
suspension or remission of a sentence, the Provincial Government may require the
Presiding Judge of the Court before or by which the conviction was had or
confirmed to state his opinion as the whether the application should be granted
or refused, together with his reasons for such opinion and also to forward with
the statement of such opinion a certified copy of the trial or of such record
thereof a exist.
(3) If any condition on which a sentence has been suspended or remitted is, in
the opinion of the Provincial Government, not fulfilled the Provincial
Government may cancel the suspension or remission, and thereupon the person in
whose favour the sentence has been suspended or remitted may, if at large, be
arrested by any police officer without warrant and remanded to undergo the
un-expired portion of the sentences.
(4) The condition on which a sentence is suspended or remitted under this
section may be one to be fulfilled by the person in whose favour the sentences
is suspended or remitted, or one independent of his will.
(4A) The provisions, of the above sub-section shall also to any order passed by
a Criminal Court under any section of this Code or of any other law, which
restricts the liberty of any person or imposes and liability upon him or his
property.
(5) Nothing herein contained shall be deemed to interfere with the rights of the
President or of the Central Government when such right is delegated to it to
grant pardons, reprieves, respites or remissions of punishment.
(5A) Where a conditional pardon is granted by the President or, in virtue of any
powers delegated to it, by the Central Government, any condition thereby
imposed, of whatever nature, shall be deemed to have been imposed by a sentence
of a competent Court under this Code and shall be enforceable accordingly.
(6) The Provincial Government may, be general rules or special orders, give
directions as to the person sentences and the conditions on which petition
should be presented and dealt with.
402. Power to commute punishment.--- (1) The Provincial Government may, without
the consent of the person sentenced, commute any one of the following sentences
for any other mentioned after it,---
death, 2[imprisonment for life], rigorous imprisonment for a tem not exceeding
that to which he might have been sentenced, simple imprisonment for a like term,
fine.
(2) Nothing in this section shall affect the provisions of section 54 or section
55 of the Pakistan Penal Code.
402A. Sentences of death.--- The powers conferred by sections 401 and 402 upon
the Provincial Government may, in the case of death, also be exercised by the
President.
3[402B. Certain restrictions on the exercise of powers by Provincial
Government.--- Notwithstanding anything contained in section 401 or section 402,
the Provincial Government shall not, except with the previous approval of the
President, exercise the powers conferred thereby in a case where the President
has passed any orders in exercise of his powers under the Constitution to grant
pardons, reprieves and respites or to remit, suspend or commute any sentence or
of his powers under section 402A].
4[402C. Remission or commutation of certain sentences not to be without
consent.--- Notwithstanding anything contained is section 401, section 402,
section 402A or section 402B, the Provincial Government, the Federal Government,
the Federal Government or the President shall not, without the consent of the
victim or, as the case may be, of his heir, suspend, remit or commute any
sentence passed under any of the section in Chapter XVI of the Pakistan Penal
Code.]
403. Persons once convicted or acquittal not to be tried for the same
offence.--- (1) A person who has once been tried by a Court of competent
jurisdiction for an offence and convicted or acquitted of such offence shall,
while such conviction or acquittal remains in force, not be liable to be tried
again for the same offence, nor on the same facts for any other offence for
which a different charge from the one made against him might have been made
under section 237.
(2) A person acquitted or convicted of any offence may be afterwards tried for
nay distinct offence for which a separate charge might have been made against
him might have been made under section 237.
(3) A person convicted of any offence constituted by any act causing
consequences which together with such act, constituted a different offence from
that of which he was convicted, may be afterwards tried for such last-mentioned
offence, if the consequence had not happened, or were not known to the Court to
have happened, at the time when he was convicted.
(4) A person acquitted or convicted of any offence constituted by any acts may,
notwithstanding such acquittal or conviction, be subsequently charged with, and
tried for any other offence constituted by the same acts which he may have
committed if the Court by which he was first tried was not competent to try the
offence with which he is subsequently charged.
(5) Nothing in this section shall affect the provisions of section 26 of the
General Clauses Act, 1897, or section 188 of this Code.
Explanation. The dismissed of a complaint, the stopping of proceedings under
section 249 5[or the discharge of the purpose of this section.
Illustrations
(a) A is tried upon a charge of theft as a servant and acquitted. He cannot
afterwards, while the acquittal remains in force, be charged with theft as a
servant, or, upon the same facts, with theft simply, or with criminal breach of
trust.
(b) A is tried upon a charge of murder and acquitted. There is no charge of
robbery; but it appears from the facts that A committed robbery at the time when
the murder was committed; he may afterwards be charged with, and tried for
robbery.
(c) A is tried for causing grievous hurt convicted. The person injured
afterwards dies. A may be tried again for culpable homicide.
(d) A is charged before the Court of Session and convicted by him of,
voluntarily causing hurt to B. A may not afterwards be tried for voluntarily
causing grievous hurt to B on the same facts, unless the case comes within
paragraph 3 of the section.
(e) A is charged by a Magistrate of the First Class with, and convicted by him
of, voluntarily causing hurt to B. A may not afterwards be tried for voluntarily
causing grievous hurt to B on the same facts, unless the case comes within
paragraph 3 of the section.
(f) A is charged by a Magistrate of the second class with, and convicted by him
of, theft of property from the person of B. A may be subsequently charged with,
and tried for, robbery on the same facts.
(g) A, B and C are charged by a Magistrate of the first class with, and
convicted by him of robbing D A, B and C may afterwards by charged with, and
tried for dacoity on the same facts.
PART VII
OF APPEAL, REFERENCE AND REVISION
CHAPTER XXXI
OF APPEALS
404. Unless otherwise provided, no appeal to lie.--- No appeal shall lie from
any judgment or order of a Criminal Court except as provided for by this Code or
by any other law for the time begin in force.
405. Appeal from order rejecting application for restoration of attached
property.--- Any person whose application under section 89 for the delivery of
property or the proceeds of the sale thereof has been rejected by any Court may
appeal to the Court to which appeals ordinarily lie from the sentences of the
former Court.
7[406. Appeal from order requiring se for keeping the peace or for good
behaviour.--- Any person who has been ordered by a Magistrate under section 118
to give security for keeping the peace or for good behaviour may appeal against
such order to the Court of Session:
Provided 6[***] that nothing in this section shall apply to person the
proceedings against whom are laid before a Sessions Judge in accordance with the
provisions of sub-section (2) or sub-section (3A) of section 123.]
8[406A. Appeal from order refusing to accept or rejecting a surety.--- Any
person aggrieved by an order refusing to accept or rejecting a surety under
section 122 may appeal against such order to the Court of Session.]
9[407. Appeal from sentence of Magistrate of the second or third class.--- (1)
Any person convicted on a trial held by any magistrate of the second or third
class, or any person sentenced under section 349 9[***] may appeal to the
District Magistrate.
(2) Transfer of appeals to first class Magistrate. The District Magistrate may
direct that any appeal under this section, or any class of such appeals, shall
be heard by any Magistrate of the first class subordinate to him and empowered
by the Provincial Government to hear such appeals, and thereupon such appeal of
presented to the District Magistrate, may be transferred to such subordinate
Magistrate. The District Magistrate. The District Magistrate may withdraw from
such Magistrate any appeal or class of appeals so presented or transferred.
408. Appeal from sentence of Assistant Sessions Judge or Judicial Magistrate.---
Any person convicted on a trial held by an Assistant Sessions Judge, 1[or a
Judicial Magistrate] or any person sentenced under section 349 2[***] may appeal
to the Court of Sessions:
Provided as follows—
(a) [Repealed by Act XII of 193[.
(b) when in any case an Assistant Sessions Judge 3[***] passed any sentence of
imprisonment for a term exceeding four years. 4[***] the appeal of all or any of
the accused convicted at such trial shall lie to the High Court:
(c) when any person is convicted by a Magistrate of an offence under section
124A of the Pakistan Penal Code, the appeal shall lie to the High Court.
5[409. Appeals to Court of Session how heard.--- Subject to the provisions of
this section, on appeal to the Court of Sessions Judge shall be heard by the
Sessions Judge or by an Additional Sessions Judge or an Assistant Sessions
Judge:
Provided that an Additional Sessions Judge shall hear only such appeals as the
Provincial Government may, by general or special order, direct or as the
Sessions Judge of the division may make over to him:
Provided further that no such appeal shall be heard by an Assistant Session
Judge unless the appeal is of a person convicted on a trial held by any
Magistrate of the second class or third class].
410. Appeal from sentence of Court of Session.--- Any person convicted on a
trial held be a Sessions Judge, or an Additional Sessions, Judge, may appeal to
the High Court.
411. [Appeal from sentence of Presidency Magistrate.] [Omitted by A.O., by 1949,
Sch].
411A. Appeal from sentence of High Courts.--- (1) Except in case in which a
appeal lies to the Supreme Court under Article 158 of the Constitution any
person convicted on a trial held by a High Court in the exercise of its original
criminal jurisdiction may, notwithstanding anything contained in section 418 or
section 423, sub-section (2), or in the Letters Patent of any High Court, appeal
to the High Court:---
(a) against the conviction in any ground of appeal which involves a matter of
law only;
(b) with the leave of the Appellate Court, or upon the certificate of the Judge
who tried the case that it is a fit case for appeal, against the conviction on
any ground of appeal which involves a matter of fact only, or a matter of mixed
law and fact, or any other ground which appears to the Appellate Court to be a
sufficient ground of appeal; and
(c) with the leave of appellate Court, against the sentence passed unless the
sentence is one fixed by law.
(2) Notwithstanding anything contained in section 417, the Provincial Government
may direct the Public Prosecutor to present an appeal to the High Court from any
order of acquittal passed by the High Court in the exercise of its original
criminal jurisdiction, and such appeal may, notwithstanding anything contained
in section 418, or Section 423, sub-section (2) or in the Letters Patent of any
High Court, but subject to the restrictions imposed by clause (b) and clause (c)
sub-section (1) of this section on an appeal against a conviction, lie on a
matter of fact as well as a matter of law.
(3) Notwithstanding anything elsewhere contained in any Act or Regulation, an
appeal under this section shall be heard by a Division Court of the or Judges by
whom the original trial was held and if the constitution of such a Division
Court in practicable, the High Court shall report the circumstances to the
Provincial Government who shall take action with a view to the transfer of the
appeal under section 527 to another High Court.
(4) Subject to such rules as may from time to tie be made by the Supreme Court
in this behalf, and to such conditions as the High Court may establish or
require, an appeal shall lie to the Supreme Court from any order made on appeal
under sub-section (1) by a Division Court of the High Court in respect of which
order the High Court declares that the matter is a for such appeal.
412. No appeal in certain cases when accused pleads guilty.--- Notwithstanding
anything hereinbefore contain where an accused person has pleaded guilty and has
been convicted by a High Court, a Court of Session or Magistrate of the first
class on such plea, there shall be no appeal except as to the extent or legality
of the sentence.
413. No appeal in petty cases.--- Notwithstanding any thing hereinbefore
contained, there shall be no appeal by a convicted person in cases in which a
High Court passes a sentence of imprisonment not exceeding six months only or of
fine not exceeding two hundred rupees only or in which a Court of Session passes
a sentence of imprisonment not exceeding one month only, or in which a Court of
Session or 6[a] Magistrate of the first class passes a sentence of fine not
exceeding fifty rupees only.
Explanation. There is no appeal from a sentence of imprisonment passed by such
Court or Magistrate in default of payment of fine when no substantive sentence
or imprisonment has also been passed.
414. No appeal from certain summary conviction.--- Notwithstanding anything
hereinbefore contained, there shall be no appeal by a convicted person in any
case tried summarily in which a Magistrate empowered to act under section 260
passes a sentence of fine not exceeding two hundred rupees only.
415. Proviso to sections 413 and 414.--- An appeal may be brought against any
sentence referred to in section 414 or section 414 by which any punishment
therein mentioned is combined with any other punishment, but no sentence which
would not otherwise be liable to appeal shall be appealable merely on the ground
that the person convicted is ordered to find security to keep the peace.
Explanation. A sentence of imprisonment in default of payment of fine is not a
sentence by which two or more punishment are combined within the meaning of this
section.
415-A. Special right of appeal in certain cases. Notwithstanding anything
contained in this Chapter, when more persons than one are convicted in one
trial, and an appealable judgment or order has been passed in respect of any
such person, all or any of the persons convicted at such trial shall have a
right of appeal.
416. [Saving of sentence on European British subjects.] [Rep. by the criminal
Law Amendment Act, 1923 (XII of 1923), S. 26]
7[417. Appeal in case of acquittal.--- (1) Subject to the provisions of
sub-section (4), the Provincial Government may, in any case, direct the Public
Prosecutor to present an appeal to the High Court from an original or appellate
order of acquittal passed by any Court other than a High Court.
(2) If such an order of acquittal is passed in any case instituted upon
complaint and the High Court, on an application made to it by the complaint in
this behalf, grants special leave to appeal from the order of acquittal, the
complainant may present such an appeal to the High Court.
(2A) A person aggrieved by the order of acquittal passed by any Court, other
than a High Court, may, within thirty days, file an appeal against such order.]
(3) No application under sub-section (2) for the grant of special leave to
appeal from an order of acquittal shall be entertained by the High Court after
the expiry of sixty days from of that order.
(4) If, in any case, the application under sub-section (2) for the grant of
special leave to appeal from an order of acquittal is refused, no appeal from
that order of acquittal shall lie under sub-section (1).]8
418. Appeal on what matters admissible.--- (1) An appeal may lie on a matter of
fact as well as a matter of law 9[***].
1[(2) Omitted by Ordinance XII of 1972].
Explanation. The alleged severity of a sentence shall, for the purposes of this
section, be deemed to be matter of law.
419. Petition of appeal. Every appeal shall be made in the form of a petition in
writing presented by the appellant or his pleader, and every such petition shall
(unless the Court to which it is presented otherwise directs) be accompanied by
a copy of the judgment or order appealed against. 2[***]
420. Procedure when appellant in jail.--- If the appellant is in jail, he may
present his petition of appeal and the copies accompanying the same to the
officer-in-charge of the jail, who shall thereupon forward such petition and
copies to the proper Appellate Court.
421. Summary dismissal of appeal.--- (1) On receiving the petition and copy
under section 419 or section 420, the Appellate Court shall pursue the same,
and, if it considers that there is no sufficient ground for interfering, it may
dismiss the appeal summarily:
Provided that no appeal presented under section 419 shall be dismissed unless
the appellant or his pleader has had a reasonable opportunity of being heard in
support of the same.
(2) Before dismissing an appeal under this section, the Court may call for the
record of the case, but shall not be bound to do so.
422. Notice of appeal.--- If the Appellate Court does not dismiss the appeal
summarily, it shall cause notice to be given to the appellant or his pleader,
and to such officer as the Provincial Government may appoint in this behalf, of
the time and place on which such appeal will be heard, and shall on the
application of such officer, furnish him with a copy of the grounds of appeal;
and, in cases of appeals under section 411A, sub-section (2) or section 417 the
Appellate Court shall cause a like notice to be given to the accused.
423. Powers of Appellate Court in disposing of appeal.--- (1) The Appellate
Court shall then send for the record of the case, if such record is not already
in Court. After perusing such record, and hearing the appellant or his pleader,
if he appears, and the Public Prosecutor, if he appears, and, in case of an
appeal under section 411A, sub-section (2) or section 417, the accused, if he
appears, Court may if it considers that there is no sufficient ground for
interfering, dismiss the appeal, or may---
(a) in an appeal from an order of acquittal, reverse such order and direct that
further inquiry be made, or that the accused be retried or 3-4[sent for trial to
the Court of Session or the High Court,] as the case may be, or find him guilty
and pass sentence on his according to law;
(b) in an appeal from a conviction, (1) reverse the finding and sentence, and
acquit or discharge the accused, or order him to be retired by a Court of
competent jurisdiction subordinate to such Appellate Court or 5[sent] for trial,
or (2), alter the finding, maintaining the sentence, or, with or without
altering the finding reduce the sentence, or, (3) with or without such reduction
and with or without altering the provisions of section 106, sub-section (3) not
so as to enhance the same;
(c) in an appeal from any other order, alter or reverse such order;
(d) make any amendment or any consequential or incidental order that may be just
or proper.
424. Judgment of subordinate Appellate Courts.--- The rules contained in Chapter
XXVI as to the judgment of a Criminal Court of original jurisdiction shall apply
so far as may be practicable, to the judgment of any Appellate Court other than
a High Court:
Provided that, unless the Appellate Court otherwise directs, the accused shall
not be brought up, or required to attend, to hear judgment delivered.
425. Order by High Court on appeal to be certified to lower Court.--- (1)
Whenever a case is decided on appeal by the High Court under this Chapter, it
shall certify is judgment or order to the Court by which the finding, sentence,
order appealed against was recorded or passed. If the finding, sentence or order
was recorded or passed by a Magistrate other than District Magistrate, the
certificate shall be sent through the District Magistrate.
(2) The Court to which the High Court certifies its judgment or order shall
thereupon make such orders as are conformable to the judgment or order of the
High Court; and, if necessary, the record shall be amended in accordance
therewith.
426. Suspension of sentence pending appeal: Release of appellant on bail.--- (1)
Pending any appeal by a convicted person, the Appellate Court may, for reasons
to be recorded by it in writing, order that the execution of the sentence or
appealed against be suspended and, also, if he is in confinement that he be
released on bail or on his own bond.
[Sub section (1A) Omitted by Ordinance LIV of 2001]
(2) The power conferred by this section on an Appellate Court may be exercised
also by the High Court in the case of any appeal by a convicted person to a
Court subordinate thereto.
(2A) 7[Subject to the provisions of section 382A] when any person other than a
person accused of a non-bailable offence is sentenced to imprisonment by a
Court, and an appeal lies from that sentence, the Court may if the convicted
person satisfies the Court that he intends to present an appeal, order that he
be released on bail for a period sufficient in the opinion of the Court to
enable him to present the appeal and obtain the orders of the appellate Court
under sub-section (1) and the sentence of imprisonment shall, so long as he is
so released on bail, be deemed to be suspended.
(2B) Where a High Court is satisfied that a convicted person has been granted
special leave to appeal to the Supreme Court against any sentence which it has
imposed or maintained, it any if it so thinks fit order that pending the appeal
the sentence or order appealed against be suspended, and also, if said person is
in confinement, that he be released on bail.
(3) When the Appellant is ultimately sentenced to imprisonment, or
8[imprisonment for life], the time which heirs so released shall be excluded in
computing the term for which he is so sentenced.
427. Arrest of accused in appeal from acquittal.--- When an appeal is presented
under section 411A, sub-section (2), or section 417, the High Court may issue a
warrant directing that the accused be arrested and brought before it or any
subordinate Court, and the Court before which he is brought may commit him to
prison pending the disposal of the appeal, or admit him to bail.
428. Appellate Court may take further evidence or direct it to be taken.--- (1)
In dealing with any appeal under this Chapter the appellate Court, if it thinks
additional evidence to be necessary, shall record its reasons and may either
take such evidence itself, or direct it to be taken by a Magistrate or, when the
appellate Court is a High Court, by a Court of Session or a Magistrate.
(2) When the additional evidence is taken by the Court of Session or the
Magistrate, it or he shall certify such evidence to the appellate Court and such
Court shall thereupon proceed to dispose of the appeal.
(3) Unless the Appellate Court otherwise directs, the accused or his pleader
shall be present when the additional evidence is taken. 1 [***].
(4) The taking of evidence under this section shall be subject to the provisions
of Chapter XXV as if it were an inquiry.
429. Procedure where Judge of Court of Appeal are equally divided.--- When the
Judge, composing the Court of Appeal are equally divided in opinion, the case,
with their opinion thereon, shall be laid before another Judge of the same
Court, and such Judge, after such hearing (if any) as he thinks fit, shall
deliver his opinion, and the judgment or order shall follow such opinion.
430. Finality of orders on appeal.--- Judgment and orders passed by an appellate
Court upon appeal shall be final, except in the cases provided for in section
417 and Chapter XXXII.
431. Abatement of Appeals.--- Every appeal under section 411A, sub-section (2),
or section 41 shall finally abate on the death of the accused, and every other
appeal under this Chapter (except an appeal from a sentence of fine) shall
finally abate on the death of the appellant.
CHAPTER XXXII
OF REFERENCE AND REVISION
432 and 433. Reference by Presidency Magistrate to High Court. Disposal of case
according to decision of High Court and direction as to costs.] Omitted by A.O.,
1949, Schedule.
434. [Power to reverse question arising in original jurisdiction of High Court
and procedure when question reserved.] Omitted by the Criminal Procedure
(Amendment) Act, 1943 (XXXII of 1943) S. 6.
435. Power to call for records of inferior Courts.--- (1) The High Court or any
Sessions Judge 2[***] may call for and examine the record of any proceeding
before any inferior criminal Court situate within the local limits of its or his
jurisdiction for the purpose of satisfying itself or himself as to the
correctness, legality or propriety of any findings, sentence or order recorded
or passed, and as to the regularity of any proceedings of such inferior Court
and may, when calling for case record, direct that the execution of any sentence
by suspended and, if the accused is in confinement, that he be released on bail
or on his own bond pending the examination of the record.
3[Explanation. All Magistrates shall be deemed to be inferior to the Sessions
Judge for the purposes of this sub-section].
(2) [Omitted by Ordinance XII of 1972].
(3) [Repealed by Act XVII of 1923].
(4) [Omitted by Ordinance XII of 1972].
4436. Power to order further inquiry. On examining any record under section 435
or otherwise---
(a) the High Court may direct the Sessions Judge to require 5[any] Magistrate
subordinate to him to make, and the Sessions Judge himself may direct any
Judicial Magistrate subordinate to him to make, further inquiry into any
complaint which has been dismissed under section 203 or sub-section (3) of
section 204; 1[***].
(b) the High Court or the Session Judge may direct 5[any Magistrate] to make
further inquiry into nay proceeding in which an order of discharge or release
has been made under section 119.
[ Proviso Omitted by Act XXI of 1976 ].
437. [Omitted by Act XXI of 1976].
438. [Omitted by Law Reforms Ord., 1972.
439. High Court’s power of revision.--- (1) In the case of any proceeding the
record of which has been called for by itself, 5[***] or which otherwise comes
to its knowledge, the High Court may, in its discretion, exercise any of the
powers conferred on a Court of Appeal by section 423, 426, 427 an d428 or on a
Court by section 338, and may equally divided in opinion, the case shall be
disposed of in manner provided by section 429.
(2) No order under this section shall be made to the prejudice of the accused
unless he has had an opportunity of being heard either personally or by pleader
in his own defence.
(3) Where the sentence dealt with under this section has been passed by a
Magistrate 6[***], the Court shall not inflict a greater either personally or by
pleader in his own defence.
7[(4) Nothing in this section shall be deemed to authorise a High Court:
(a) to convert a finding of acquittal into new of conviction; or
(b) to entertain any proceedings in revision with respect to an order made by
the Sessions Judge under section 439-A.]
(5) Where under this Code an appeal lies and no appeal is brought, no
proceedings by way of revision shall be entertained at the instance of the party
who could have appealed.
(6) Notwithstanding anything contained in this section, any convicted person to
whom an opportunity has been given under sub-section (2) of showing cause why
his sentence should not be enhanced shall, in showing cause, by entitled also to
show cause against his conviction.
8[439-A. Session Judge’s powers of revision. (1) In the care of any proceedings
before a Magistrate the record of which has been called for by the session Judge
or which otherwise comes to his knowledge, the sessions Judge or which otherwise
comes to his knowledge, the sessions Judge may exercise any of the power
conferred on the High Court by section 439.
(2) An Additional Sessions Judge shall have and may exercise all the powers of a
Sessions Judge under this Chapter in respect of any case which may be
transferred to him under any general or special order of the Sessions Judge.]
440. Optional with Court to hear parties.--- No party has any right to be heard
either personally or by pleader before any Court when exercising its powers of
revision:
Provided that the Court may, if it thinks fit, when exercising such powers, hear
any party either personally or by pleader, and that nothing in this section
shall be deemed to affect section 439, sub-section (2).
441. [Omitted by A.O., 1949.]
442. High Court’s order to be certified to lower Court or Magistrate.--- When a
case is revised under this Chapter by the High Court, it shall, in manner
hereinbefore provided by section 425, certify its decision or order to the Court
or Magistrate to which the decision or order is so certified shall thereupon
make such orders as are conformable to the decision so certified and, if
necessary, the record shall be amended in accordance therewith.
__________
PART VIII
SPECIAL PROCEEDINGS
CHAPTER XXXIII
[SPECIAL PROVISIONS RELATING TO CASES IN WHICH EUROPEAN AND PAKISTAN BRITISH
SUBJECT ARE CONCERNED]
443-463. [Omitted by the Criminal Law (Extinction of discriminatory Privileges)
Act, 1949 (II of 1950), Schedule].
CHAPTER XXXIV
LUNATICS
464. Procedure in case of accused being lunatic.--- (1) When a Magistrate
holding an inquiry or a trial has reason to believe that the accused is of
unsound mind and consequently incapable of making his defence, the Magistrate
shall inquire into the fact of such unsoundness, and shall cause such person to
be examined by the Civil Surgeon of the district or such other medical officer
as the Provincial Government directs and thereupon shall examine such Surgeon or
other officer as a witness, and shall reduce the examination to writing.
(1A) Pending such examination and inquiry, the Magistrate may deal with the
accused in accordance with the provisions of section 466.
(2) If such Magistrate is of opinion that the accused is of unsound mind and
consequently incapable of making his defence he shall record a finding to that
effect and shall postpone further proceedings in the case.
465. Procedure in case of person sent for trial before Court of Session of High
Court being lunatic.--- 9[(1) If any person before a Court of Session or a High
Court appears to the Court at is trial to be of unsound mind and consequently
incapable of making his defence the Court shall, in the first instance, try the
fact of such unsoundness and incapacity, and if the Court is satisfied of the
fact, in shall record a finding to that effect and shall postpone further
proceedings in the case].
(2) Trial of the fact of the unsoundness of mind and incapacity of the accused
shall be deemed to be part of his trial before the Court.
466. Release of lunatic pending investigation or trial.--- (1) Whenever an
accused person is found to be of unsound mind and incapable of making his
defence, the Magistrate or Court, as the may be, whether the case is one in
which bail may be taken or not may, release him on sufficient security being
given that he shall be properly taken care of and shall be prevented from doing
injury to himself or to any other person and for his appearance when required
before the Magistrate or Court or such officer as the Magistrate or Court
appoints in this behalf.
(2) Custody of lunatic. If the case is one in which, in the opinion of the
Magistrate or Court, bail should not taken, or if sufficient security is not
given, the Magistrate or Court, as the case may be, shall order the accused to
be detained in safe custody in such place and manner as he or it may think fit
and shall report the action taken to the Provincial Government:
Provided that no order for the detention of the accused in a lunatic asylum
shall be made otherwise than in accordance with such rules as the Provincial
Government may have made under the Lunacy Act, 1912.
467. Resumption of inquiry or trial.--- (1) Whenever an inquiry or a trial is
postponed under section 464 or section 465, the Magistrate or Court, as the case
may be, may at any time resume the inquiry or trial, and require the accused to
appear or be brought before such Magistrate or Court.
(2) When the accused has been released under section 466, and the sureties for
his appearance produce him to the officer whom the Magistrate or Court appoint
in this behalf, the certificate of such officer that the accused is capable of
making his defence shall be receivable in evidence.
468. Procedure on accused appearing before Magistrate or Court.--- (1) If when
the accused appear or is again brought before the Magistrate or the Court, as
the case may be, the Magistrate or Court considers him capable of making his
defence, the inquiry or trial shall proceed.
(2) If the Magistrate or Court considers the accused to be still incapable of
making his defence, the Magistrate or Court shall again act according to the
provisions of section 464 or section 465, as the case may be, and if the accused
is found to be of unsound mind and incapable of making his defence, shall deal
with such accused in accordance with the provisions of section 466.
1[469. When accused appears to have been insane.--- When the accused appears to
be of sound mind at the time of inquiry or trial and the Magistrate or Court is
satisfied from the evidence given before him or it that there is reason to
believe that the accused committed an act which, if he had been of sound mind,
would have been an offence, and that he was, at the time when the act was
committed, by reason by unsoundness of mind incapable of knowing the nature of
the act or that it was wrong or countrary to law, the Magistrate or Court shall
proceed with the case].
470. Judgment of acquittal on ground of lunacy.--- Whenever any person is
acquitted upon the ground that, at the time at which he is alleged to have
committed an offence, he was, by reason of unsoundness of knowing the nature of
the finding shall state specifically whether he committed the act or not.
471. Persons acquitted on such ground to be detained in safe custody.--- (1)
Whenever the finding states that the accused person committed the act alleged,
the Magistrate or Court before whom or which the trial has been held shall, if
such act would, but for the incapacity found, have constituted an offence, order
such person to be detained in safe custody in such place and manner as the
Magistrate or Court thinks fit, and shall report the action taken to the
Provincial Government:
Provided that no order for the detention of the accused in a lunatic asylum
shall be made otherwise than in accordance with such rules as the Provincial
Government may have made under the Lunacy Act, 1912.
(2) Powers of Provincial Government to relieve Inspector-General of certain
functions. The Provincial Government may empower the officer-in-charge of the
jail in which a person is confined under the provisions of section 466 or this
section, the discharge all or any of the functions of the Inspector General of
Prisons under section 473 or section 474.
472. [Lunatic prisoners to be visited by Inspector General] [Rep. by the Lunacy
Act, 112, S. 101 and Schedule II].
473. Procedure where lunatic prisoner is reported capable of making his
defence.--- If such person is detained under the provisions of section 466 and
in the case of a person detained in a jail, the Inspector General of Prisons,
or, in the case of a person detained in Lunatic asylum, the visitors of such
asylum or any two of them shall certify that, in his or their opinion such
person is capable of making his defence he shall be taken before the Magistrate
or Court, as the case may be, at such time as the Magistrate or Court appoints,
and the Magistrate or Court shall deal with such person under the provisions of
section 468; and the certificate of such Inspector General or visitors as
aforesaid shall be receivable as evidence.
474. Procedure where lunatic detained under section 466 or section 471 is
declared fit to be released.--- (1) If such person is detained under the
provisions of section 466 or section 471, and such Inspector General or visitors
shall certify that, in his or their judgment, he may be released without danger
of his doing injury to himself or to any other person, the Provincial Government
may thereupon lunatic asylum if he has not been already sent an asylum; and in
case it orders him to be transferred to an asylum, may appoint a Commission
consisting of a judicial and two medical officers.
(2) Such Commission shall make formal inquiry into the state of mind of such
person, taking such evidence as is necessary, and shall report to the Provincial
Government which may order his release or detention as it thinks fit.
475. Delivery of lunatic to care relative or friend.--- (1) Whenever any
relative or friend of any person detained under the provisions of section 466 or
section 471 desires that he shall be delivered to his care and custody, the
Provincial Government may, upon the application of such relative or friend and
on his giving security to the satisfaction of such Provincial Government that
the person delivered shall---
(a) to properly taken care of and prevented from doing injury to himself or to
any other person, and
(b) be produced for the inspection of such officer, and at such times and place,
as the Provincial Government may direct, and
(c) in the case of a person detained under section 466, be produced when
required before such Magistrate or Court,
order such person to be delivered to such relative or friend.
(2) If the person so delivered is accused of any offence the trial of which has
been postponed by reason of his being of unsound mind and incapable of making
his defence and the inspecting officer referred to in sub-section (1), clause
(b), certifies at any time to the Magistrate or Court that such person is
capable of making his defence, such Magistrate or Court shall call upon the
relative or friend to whom such accused was delivered to produce him before the
Magistrate or Court, and, upon such production, the Magistrate or Court shall
proceed in accordance with the provisions of section 468, and the certificate of
inspecting officer shall be receivable as evidence.
CHAPTER XXXV
PROCEEDINGS IN CASE OF CERTAIN OFFENCES
AFFECTING THE ADMINISTRATION OF JUSTICE
2[476. Procedure in cases mentioned in section 195.--- (1) When any offence
referred to in section 195, sub-section (1), clause (b) or clause (c), has been
committed in, or in relation to, a proceeding in any Civil, Revenue or Criminal
Court, the Court may take cognizance of the offence and try the same in
accordance with the procedure prescribed for summary trials in Chapter XXII.
(2) When in any case tried under sub-section (1) the Court finds the offenders
guilty, it may, notwithstanding anything contained in sub-section (2) of section
262:---
(a) pass any sentence on the offender authorised by law for such offence, except
a sentence of death, or, imprisonment for life, or imprisonment exceeding five
years, if such Court be a High Court, a Court of Session, a District Court or
any Court exercising the power of a Court of Session or a District Court;
(b) sentence the offender to simple imprisonment for a term which may extend to
three months, or to pay a fine not exceeding 3[one thousand rupees] or both, if
such Court be a Court of a Magistrate of the first class, a Civil Court other
than a High Court, a District, a Court or a Court exercising the powers of a
District Court, or Revenue Court not inferior to the Court of Collector;
(c) sentence the offender to simple imprisonment for a term not exceeding one
month, or to pay a fine not exceeding fifty rupees; or both, if such Court be a
Criminal Court or a revenue Court other than a Court referred to in clause (a) r
clause (b).
(3) The powers conferred on Civil, Revenue and Criminal Courts under this
section may be exercised in respect of any offence referred to in sub-section
(1) and alleged to have been committed in relation to any proceeding in such
Court by the Court to which such former Court is subordinate within the meaning
of sub-section (3) of section 195.
(4) Any person sentenced by any Court under this section may, notwithstanding
anything hereinbefore contained, appeal--
(a) in the case of a sentence by the High Court, to the Supreme Court;
(b) in the case of a sentence by a Court of Session, or District Court, or a
Court exercising the powers of a Court of Session or a District Court, to the
High Court; and
(c) in any other case, to the Sessions Judge,
(5) The provisions of Chapter XXXI shall, so far as they are applicable, apply
to appeals under this section and the Appellate Court may alter the finding or
reduce or enhance the sentence appealed against.]
4[476A. Forwarding of cases for trial by Courts having jurisdiction.--- (1) If
the Court in any case considers that the person accused of any of the offences
referred to in section 476, sub-section (1), and committed in, or in relation
to, any proceedings before it, should not be tried under that section, such
Court may, after recording the facts constitution the offence and the statement
of the accused person, as hereinbefore provided, forward the case to a Court
having jurisdiction to try the case, and may require security to be given for
the appearance of such accused person before such Court or, if sufficient
security is not given, shall forward such person in custody to such Court.
(2) The Court to which a case is forwarded under this section shall proceed to
hear the complaint against the accused person in the manner hereinbefore
provided.]
476B. [Omitted by Law Reforms Ordinance, 1972].
477.[ Repealed by Amendment Act of 1923].
478. [Omitted by Law Reforms Ordinance, 1972].
479. [Omitted by Law Reforms Ordinance, 1972].
480. Procedure to certain cases of contempt.--- (1) When any such offence as is
described in section 175, section 178, section 179, section 180 or section 228
of the Pakistan Penal Code is committed in the view or presence of any Civil,
Criminal or Revenue Court, the Court may cause the offender to be detained in
custody and at any time before the rising of the Court on the same day may, if,
it exceeding two hundred rupees, and, in default of payment, to simple
imprisonment for a term which may extend to one month, unless such fine be
sooner paid.
[Sub section (2) Omitted by Act II of 1950]
481. Record in such cases.--- (1) In every such case the Court shall record the
facts constituting the offence, with statement (if any) made by the offender, as
well as the finding and sentence.
(2) If the offence is under section 228 of the Pakistan Penal Code, the record
shall show the nature and stage of the judicial proceeding in which the Court
interrupted or insulted was sitting, and the nature of the interruption or
insult.
482. Procedure where Court considers that case should not be dealt with under
section 480.--- (1) If the Court in any case considers that a person accused of
any of the offences referred to in section 480 and committed in its view or
presence should be imprisonment otherwise than in default of payment of fine, or
that a fine exceeding two hundred rupees should be imposed upon him, or such
Court is for any other reasons of opinion that the case should not be disposed
of under section 480, such Court, after recording the facts constituting the
offence and the statement of the accused as hereinbefore provided, may forward
the case to a Magistrate having jurisdiction to try the same and may require
security to be given for the appearance of such accused person before such
Magistrate or if sufficient security is not given, shall forward such person in
custody to such Magistrate.
(2) The Magistrate, to whom any case is forwarded under this section, shall
proceed to hear the complaint against the accused person in manner hereinbefore
provided.
483. When Registrar or Sub-Registrar to be deemed to Civil Court within meaning
of sections 480 and 482.--- When the Provincial Government so directs any
Registrar or any Sub-Registrar appointed under the 6[Registration Act, 1908 (XVI
of 1908)] shall be deemed to be a Civil Court within the meaning of sections 480
and 482.
484. Discharge of offender on submission of apology.--- When any Court has under
section 480 or section 482 adjudged an offender to punishment or forward him to
a Magistrate for trial for refusing or omitting to do anything which he was
lawfully required to do or for any intentional insult or interruption, the Court
may, in its discretion, discharge the offender or remit the punishment on his
submission to the order or requisition of such Court, or on apology being made
to its satisfaction.
485. Imprisonment or committal of person refusing to answer or produce
document.--- if any witness or person called to produce a document or thing
before a Criminal Court refuses to answer questions as are put into him or to
produce any document or thing in his possession or power which the Court
requires him to produce, and does not offer any reasonable excuse for such
refusal, such Court may, for reasons to be recorded in writing, sentence him to
simple imprisonment, or by warrant under the hand of the Presiding Magistrate or
Judge commit him ot the custody of an officer of the Court for any term not
exceeding seven days, unless in the meantime such person consents to be examined
and to answer, or to produce the document or thing. In the event of his
persisting in his refusal, he may be dealt with according to the provisions of
section 480 or section 482, and, in the case of High Court, shall be deemed
guilty of a contempt.
486. Appeal from conviction in contempt cases.--- (1) Any person sentenced by
any Court under section 480 or section 485 may, notwithstanding anything
hereinbefore contained, appeal to the Court to which decrees or orders made in
such Court are ordinarily appealable.
(2) The provisions of Chapter XXXI shall so far as they are applicable, apply to
appeals under this section, and the Appellate Court may alter or reverse the
finding, or reduce or reverse the sentence appealed against.
(3) An appeal from such conviction by a Court of Small Causes shall lie to the
Court of Session for the Sessions Division within which such Court is situate.
(4) An appeal from such conviction by any officer as Registrar or Sub-Registrar
appointed as aforesaid may, when such officer is also Judge of a Civil Court, by
made to the Court to which it would, under the preceding portion of this
section, be made if such conviction were a decree by such officer in his
capacity as such Judge, and in cases may be made to the District Judge.
487. Certain Judges and Magistrate not to try offences referred to in section
195 when committed before themselves.--- (1) Except as provided in sections
7[476], 480 and 485, no Judge of a Criminal Court or Magistrate, other than a
Judge of a High Court shall try any person for any officer referred to in
section 195, when such offence is committed before himself or in contempt of his
authority, or is brought under his notice as such Judge or Magistrate in the
course of a judicial proceeding.
[Omitted by Law Reforms Ordinance, XII of 1972].
CHAPTER XXXVI
OF THE MAINTENANCE OF WIVES AND CHILDREN
488-490. (Omitted by Criminal Law (Amendment) Ordinance XXVII of 1981).
The repealed sections are given below:---
(Note: These sections are still operative in AJK.)
488. Order for maintenance of wives and children.--- (1) If any person having
sufficient means neglects or refuses to maintain his wife or his legitimate or
illegitimate child unable to maintain itself. 8[***] a Magistrate of the first
class may, upon proof of such neglect or refusal, order such person to make a
monthly allowance for the maintenance of his wife or such child, at such monthly
rate, not exceeding 9[four hundred]rupees in the whole, as such Magistrate
thinks fit, and to pay the same to such person as the Magistrate from time to
time directs.
(2) Such allowance shall be payable from the date of the order, or if so ordered
from the date of the application for maintenance.
(3) Enforcement of order. If an person so ordered fails without sufficient cause
to comply with the order, any such Magistrate may, for every breach of the
order, issue a warrant for levying the amount due in manner hereinbefore
provided for levying fines, and may sentence such person, for the whole or any
part of each month’s allowance remaining unpaid after the execution of the
warrant, to imprisonment for a term which may extent to one month or until
payment if sooner made.
Provided that, if such person offers to maintain his wife on condition of her
living with him, and she refuse to live with him, such Magistrate may consider
of refusal by her, and may make an order under this section notwithstanding such
offer, if he is satisfied that there is just ground for so doing.
Provided further, that no warrant shall be issued for the recovery of any amount
due under this section unless application be made to the Court to levy such
amount within a period of one year from the date on which it became due.
(4) No wife shall be entitled to receive an allowance from her husband under
this section is she is living in adultery, or if, without any sufficient reason,
she refuses to live with her husband, or if they are living separately by mutual
consent.
(5) On proof that any wife in whose favour an order has been made under this
section is living in adultery, or that without sufficient reason she refuses to
live with her husband, or that they are living separately by mutual consent, the
Magistrate shall cancel the order.
(6) All evidence under this Chapter shall be taken in the presence of the
husband or father, as the case may be, or, when his personal attendance is
dispense with, in the presence of his pleader, and shall be recorded in the
manner prescribed in the case of summons-case.
Provided that if the Magistrate is satisfied that he is willfully avoiding
service, or willfully neglects to attend the Court, the Magistrate may proceed
to hear and determine the case ex parte. Any orders so made be set aside for
goods cause shown on application made within three months from the date thereof.
(7) The Court in dealing with application under this section shall have power to
make with order to costs as may be just.
(8) Proceedings under this section may be taken against any person in any
district where he resides or is, or where he last resided with his wife, or, as
the case may be, the mother of the illegitimate child.
489. Alteration is allowance.--- (1) On proof of a change in the circumstances
of any person receiving under section 488 a monthly allowance, or ordered under
the same section to pay a monthly allowance to his wife or child, the Magistrate
may make such alteration in the allowance as he thinks fit: Provided that if he
increases the allowance the monthly rate of 10[four hundred] rupees in the whole
be not exceeded.
(2) Where it appears to the Magistrate that, in consequence of any decision of a
competent Civil Court, any order made under section 488 should be cancelled or
varied, he shall cancel the order or, as the case may be, vary the same
accordingly.
490. Enforcement of order of maintenance.--- A copy of the order of maintenance
shall be given without payment to the person in whose favour it is made, or to
his guardian, if any, or to the person to whom the allowance is to be paid; and
such order may be enforced by any Magistrate in any identity of the parties and
the non-payment of the allowance due.
CHAPTER XXXVII
DIRECTIONS OF THE NATURE OF A HABEAS CORPUS
491. Power to issue directions of the nature of a habeas corpus.--- (1) Any High
Court may, whenever it thinks fit, direct:---
(a) that a person within the limits of its appellate criminal jurisdiction be
brought up before the Court to be dealt with according to law;
(b) that a person illegally or improperly detained in public or private custody
within such limits be set at liberty;
(c) that prisoner detained in any jail situate within such limits be brought
before Court to be there examined as a witness in any matter pending or to be
inquired into in such Court;
(d) that a prisoner detained as aforesaid be brought before a Court-martial or
any Commissioners for trial or to be examined touching any matter pending before
such Court-martial or Commissioner respectively;
(e) that a prisoner within such limits be removed from one custody to another
for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in one the
Sheriff’s return of cepi corpus to a writ of attachment.
(2) The High Court may, from time to time, frame rules to regulate the procedure
in cases under this section.
11[(3) Nothing in this section applies to persons detained under any law
providing for preventive detention.]
491-A. [Powers of High Court outside the limits of appellate jurisdiction].
Omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949
(II of 1950), Schedule.
___________
PART IX
SUPPLEMENTARY PROVISIONS
CHAPTER XXXVIII
OF THE PUBLIC PROSECUTOR
492. Power to appoint Public Prosecutors.--- (1) The Provincial Government may
appoint, generally, or in any case, or for any specified class of cases, in any
local area, one or more officers to be called Public Prosecutors.
(2) 2[Officer-in-charge of prosecution in the district], may, in the absence of
the Public Prosecutor, or where no Public Prosecutor has been appointed appoint
any other person, not being an officer of police below such rank as the
Provincial Government may prescribe in this behalf, to be Public Prosecutor for
the purpose of any case.
493. Public Prosecutor may plead in all Courts in cases under his charge.
Pleaders privately instructed to be under his direction.--- The Public
Prosecutor may appear and plead without any written authority before any Court
in which any case of which he has charge is under inquiry, trial or appeal, and
if any private person instructs a pleader to prosecute on any Court any person
in any such case, the Public Prosecutor shall conduct the prosecution, and the
pleader so instructed shall act therein, under his directions.
494. Effect to withdrawal from prosecution.--- Any Public Prosecutor may, with
the consent of the Court, 12[x x x] before the judgment is pronounced, withdraw
from the prosecution of any person either generally or in respect of any one or
more of the offences for which he is tried, and upon such withdrawal,--
(a) if it is made before a charge has been framed, the accused shall be
discharged in respect of such offence or offences;
(b) if it is made after a charge has been framed, or when under this Code no
charge is required, he shall be acquitted in respect of such offence or
offences.
495. Permission to conduct prosecution.--- (1) Any Magistrate inquiring into or
trying any case may permit the prosecution to be conducted by any person other
than an officer of police below the rank to be prescribed by the Provincial
Government in this behalf but no person other than the Advocate-General,
Standing Counsel, Government Solicitor, Public Prosecutor or other officer
generally or specially empowered by the Provincial Government in this behalf,
shall be entitled to do so withdraw such permission.
(2) Any such officer shall have the like power of withdrawing from the
prosecution as is provided by section 494 and the provisions of that section
shall apply to any withdrawal by such officer.
(3) any person conducting the prosecution may do so personally or by a pleader.
(4) Any officer of police shall not be permitted to conduct the prosecution if
he has nay part in the investigation into the offence with respect to which the
accused is being prosecuted.
CHAPTER XXXIX
OF BAIL
496. In what cases bail to be taken.--- When any person other than a person
accused of non-bailable offence is arrest without warrant or detained by an
officer-in-charge of a police station or appears or is brought before a Court,
and is prepared at any time while in the custody of such officer or at any stage
of the proceedings before such Court to give bail such person shall be released
on bail:
Provided that such officer or Court if he or it thinks fit, may, instead or
taking bail from such person, discharge him on his executing a bond without
sureties for his appearance as hereinafter provided:
Provided further, that nothing in this section shall be deemed to affect the
provisions of section 107, sub-section 117, sub-section (3).
497. When bail may be taken in cases of non-bailable offence.--- (1) When any
person accused of non-bailable offence is arrested or detained without warrant
by an officer-in-charge of a police station, or appears or is brought before a
Court, he may be released on bail, but he shall not be so released if there
appear reasonable grounds for believing that he has been guilty of an offence
punishable with death or 1[imprisonment] for life or imprisonment for 10 years.
Provided that the Court may direct that any person under the age of sixteen
years or any woman or any sick or infirm person accused of such an offence be
released on bail:
Provided further that a person accused of an offence as aforesaid shall not be
release on bail unless the prosecution has been notice to show cause why he
should not be so released3.
2[Provisos 3 and 4 Omitted by Ordinance LIV of 2001 of 2001 dated 13/8/2001]
(2) If it appears to such officer or Court at any stage of the investigation,
inquiry or trial, as the case may be, that there are not reasonable grounds for
believing that the accused has committed a non-bailable offence, but that there
are sufficient grounds for further inquiry into his guilty, the accused shall,
pending such inquiry, be released on bail, or, at the discretion of such officer
or Court, on the execution by him of a bond without sureties for his appearance
as hereinafter provided.
(3) An officer or a Court releasing any person on bail under sub-section (1) or
sub-section (2) shall record in writing his or its reasons for so doing.
(4) If, at any time after the conclusion of the trial of a person accused of a
non-bailable offence and before judgment is delivered, the Court is of opinion
that there are reasonable grounds for believing that the accused is not guilty
of any such offence, it shall release the accused, if he is in custody on the
execution by him of a bond without sureties for his appearance to hear judgment
delivered.
(5) A High Court or Court of Session and, in the case of a person released by
itself, any other Court may cause person who has been released under this
section to be arrested and may commit him to custody.
COMMENTARY
Supreme court, in State v. Zubair PLD 1986 SC 173, inter alia had observed that
if a Judge of a High Court had heard a bail application of an accused person,
all subsequent applications for bail of the same accused or in the same case,
should be referred to the same Bench/Judge wherever he is sitting and in case it
was absolutely impossible to place the second or subsequent bail application
before the same Judge who had dealt with the earlier bail application of the
same accused or in the same case, in such cases, the Chief Justice of the
concerned High Court may order that it be fixed for disposal before any other
bench/Judge of the Court --- Supreme Court, taking suo motu notice of the
difficulties arising out of the strict implementation of the ratio in the State
v. Zubair observed that the spirit underlying the said case which still held the
field was not intended to create difficulties/bottlenecks or to work
prejudicially to the interest of all concerned --- Chief Justice concerned in
such a situation was to examine whether in any of the given case, due to
non-availability of the Bench/Judge who had earlier dealt with the bail
application, owing to exigencies of service or any other sufficient cause,
departure be made in the larger interest of justice and refer the cause to
another Bench/Judge for reasons to be recorded in writing; same procedure was to
be followed at the Benches where similar orders may be passed by the Senior
Judge --- Such arrangement was directed by the Supreme Court to be followed as
an interim measure till the final disposal of suo motu criminal review, after
notice to all Advocates-General of the Provinces and Registrars of the High
Courts who, after seeking instructions from the respective Chief Justices, shall
submit reports in regard to the difficulties being faced in implementation of
the ratio in Zubair’s case.
[PLD 2002 SC 1]
‘Child’ --- Definition --- Age of accused according to police was between 17 and
18 years --- Such police opinion ex facie was sufficient to attract the
provisions of Juvenile Justice System Ordinance, 2000, as even one day less than
18 years would bring the accused within the definition of “child†as given in
S.2(b) of the said Ordinance --- Court on agitation of the plea of the young age
of the accused was under a statutory obligation under S.7 of the Ordinance to
record a finding, after an inquiry including the medical report, about his age
--- Court would be committing an error by placing unrestricted reliance solely
on “Hulia Form†etc. of the accused for determining his age --- Accused was
charged for an offence under S380, P.P.C. which was punishable with seven years’
R.I. and he was in custody for a period of more than seven months --- Had the
point of age been determined in accordance with law as a prerequisite condition,
a statutory right would have accrued in favour of accused for release on bail,
as even the charge against him had not yet been framed --- In view of the
figures 17/18 years and in absence of any medical report to the contrary the
benefit.
arising out of the circumstances was to be extended to the accused, who as such
was entitled to bail --- Accused was granted bail accordingly.
[PLD 2002 Kar. 18]
Bail --- Proceedings in the case having been stayed by Supreme Court at the
instance of co-accused and a status quo being in existence for almost three
years, accused, could not be found at fault for the delay as suggested ---
Co-accused had been admitted to bail by Supreme Court in similar circumstances
and on the same charge and the accused was entitled to equal treatment before
law and in view of rule of consistency was also entitled to the concession of
bail --- Accused in the perspective of third proviso to S. 497(1), Cr.P.C. could
not be detained in jail for indefinite period for the act of the Court ---
Petition for leave to appeal was converted into appeal in circumstances and by
allowing the same accused was admitted to bail.
[PLD 2002 SC 46]
S. 497(5) --- Cancellation of bail --- principles --- Grounds normally taken
into consideration for cancellation of bail are: misuse of concession of bail
and causing fear and alarm to the complainant and the prosecution witnesses;
likelihood of the witnesses being won over and their evidence being tampered
with; likelihood of repetition of the commission of the alleged crime;
likelihood of the abscondence of the accused and bail granting order being
arbitrary, capricious and against the evidence available with the prosecution.
[PLD 2002 Kar. 1]
498. Power to direct admission to bail or reduction of bail. The amount of every
bond executed under this Chapter shall be fixed with due regard to the
circumstances of the case, and shall not be excessive; and the High Court or
Court of Session may, in any case, whether there be an appeal on conviction of
not direct that any person be admitted to bail, or that the bail required by a
police officer or Magistrate be reduced.
3[498-A. No bail to be granted to a person not in custody, in Court or against
whom no case is registered, etc.--- Nothing in section 497 or section 498 shall
be deemed to require or authorise a Court to release on bail, or to direct to be
admitted to bail any person who is not in custody or is not present in Court or
against whom no case stands registered for the time being and an order for the
release of a person on bail, or direction that a person be admitted to bail,
shall be effective only in respect of the case that so stands registered against
him and is specified in the order or direction].
499. Bond of accused and sureties.--- (1) Before any person is released on bail
or released on his own bond, a bond for such of money as the police officer or
Court, as the case may be, thinks sufficient shall be executed by such person,
and, when he is released on bail, by one or more sufficient sureties conditioned
that such person shall attend at the time and place mentioned in the bond, and
shall continue so to attend until otherwise directed by the police or Court, as
the case may be.
(2) If the case so require, the bond shall also bind the person released on bail
to appear when called upon at the High Court, Court of Session or other Court to
answer the charge.
500. Discharge from custody.--- (1) As soon as the bond has been executed, the
person for whose appearance it has been executed shall be released: and, when he
is in jail, the Court admitting him to bail shall issue an order of release to
the officer-in-charge of the jail, and such officer on receipt of the order
shall release him.
(2) Nothing in this section, section 496 or section 497 shall be deemed to
require the release of any person liable to be detained for some matter other
than that in respect of which the bond was executed.
501. Power to order sufficient bail when that first taken is insufficient.---
If, through mistake, fraud or otherwise, insufficient sureties have been
accepted, or if they afterwards become insufficient, the Court may issue a
warrant of arrest directing that the person released on bail be brought before
it and may order him to find sufficient sureties, and, on his failing so to do,
may commit him to jail.
502. Discharge of sureties.--- (1) All or any sureties for the attendance and
appearance of a person released on bail may at any time apply to a Magistrate to
discharge the bond, either wholly or so far as relates to the applicants.
(2) On such application being made, the Magistrate shall issue his warrant of
arrest directing that the person so released be brought before him.
(3) On the appearance of such person pursuant to the warrant, or on his
voluntary surrender, the Magistrate shall direct the bond to be discharged
either wholly or so far as relates to the applicants, and shall call upon such
person to find other sufficient sureties, and if he fails to do so, may commit
him to custody.
CHAPTER XL
OF COMMISSIONS FOR THE EXAMINATION OF
WITNESSES
503. When attendance of witness may be dispensed with.--- (1) Whenever, in the
course of an inquiry, a trial or any other proceeding under this Code, it
appears to 1[***], a Court of Session or the High Court that the examination of
a witness is necessary for the ends of justice and the attendance of such a
witness cannot be procured without an amount of delay, expense or inconvenience
which, under the circumstances of the case, would be unreasonable, such 1[***]
Court may dispense with such attendance and may issue a commission to any 1[***]
Magistrate of the first class, within the local limits of whose jurisdiction
such witness resides, to take evidence of such witness.
(2) Issue of Commission and procedure thereunder. [Omitted by Ordinance XXVII of
1981.]
2[(2-A) When the witness resides in an area in or in relation to which the
president has extra-provincial jurisdiction within the meaning of the
Extra-Provincial Jurisdiction Order, 1949 (G.G.O. No.5 of 1949), the commission
may be issued to such court of officer in the area as may be recognized by the
President by notification in the official Gazette as a Court or officer to which
or to whom commission may be issued under this sub-section and within the local
limits of whose jurisdiction the witness resides].
(2-B) When the witness resides in the United Kingdom or any other country of the
Commonwealth, 3[***] or in the Union of Burma, or any other country in which
reciprocal arrangement in this behalf exists, the commission may be issued by
such Court or Judge having authority in this behalf in that country as may be
specified by the Central Government by notification in the official Gazette.
(3) The Magistrate or officer to whom the commission is issued, 1[***] or such
Magistrate of the first class as he appoints in this behalf, shall proceed to
the place where the witness is or shall summon the witness before him, and shall
take down his evidence in the same manner, and may for this purpose exercise the
same power, as n trials of warrant 2[cases] under this Code.
2[(4) Where the commission is issued to such officer as is mentioned in
sub-section (2A) he may, in lieu of proceeding in the manner provided in
sub-section (3), delegate his powers and duties under the commission to any
officer subordinate to him whose powers are not less than those of a Magistrate
of the first class in Pakistan.]
504. [Commission in case of witness being within Presidency Town.] Omitted by
A.O., 1949, Schedule.
505. Parties may examine witnesses.--- (1) The parties to any proceeding under
this Code in which a commission is issued, may respectively forward any
interrogatories in writing which the Magistrate or Court directing the
commission may think relevant to the issue and when the commission is directed
to a whom the duty of executing such commission has been delegated shall examine
the witness upon such interrogatories.
(2) Any such party may appear before such Magistrate or officer by pleader, or
if not in custody, in person, and may examine, cross-examine and re-examine (as
the case may be) the said witness.
506. Power of Magistrate to apply for issue of commission.--- Whenever, in the
course of any inquiry or a trial or any other proceeding under this Code before
any Magistrate 3[***], it appears that a commission ought to be issued for the
examination of a witness whose evidence is necessary for the ends of justice,
and that the attendance of such witness cannot be procured without an amount of
delay, expense or inconvenience which, under the circumstances of the case,
would be unreasonable, 4[such Magistrate, 1[***] shall apply to the Sessions
Judge, 1[***] stating the reasons for the application; and the Session Judge
1[***] may either issue a commission in the manner hereinbefore provided or
reject the application.
507. Return of commission.--- (1) After any commission issued under section 503
or section 506 has been duly executed it shall be returned, together with the
deposition of the witness examined thereunder, to the Court out of which it
issued; and the commission, the return thereto and the deposition shall be open
at all reasonable times to inspection of the parties, and may, subject to all
just exception, be read in evidence in the case by either party, and shall from
part of the record.
(2) Any deposition so taken, if it satisfies the conditions prescribed by
section 33 of the Evidence Act, 1872, may also be received in evidence at any
subsequent stage of the case before another Court.
508. Adjournment of inquiry or trial.--- In every case in which commission is
issued under section 503 or section 506, the inquiry, trial or other proceeding
may be adjourned for a special time reasonably sufficient for the execution and
return of the commission.
508-A. Application of this chapter to commissions issued in Burma.--- The
provisions of sub-section (3) of section 503, and so much of section 505 and 507
as relates to the execution of a commission and its return by the Magistrate or
officer to whom the commission is directed shall apply in respect of commissions
issued by any Court or Judge having authority in this behalf in Union Kingdom or
in any other country of the Commonwealth 2[x x x x] or in the Union of Burma or
any other country in which reciprocal arrangement in this behalf exists under
the law in force in that country relating to commissions for the examination of
witnesses as they apply to commissions issued under section 503 or section 506.
___________
CHAPTER XLI
SPECIAL RULES OF EVIDENCE
509. Deposition of medical witness.--- (1) The deposition of a Civil Surgeon or
other medical witness taken and attested by a Magistrate in the presence of the
accused, or taken or commission under Chapter XL, may be given in evidence in
any inquiry, trial or other proceedings under this Code, although the deponent
is not called as a witness.
(2) Power to summon medical witness. The Court may, if it thinks fits, summon
and examine such deponent as to the subject-matter of his deposition.
10[510. Report of Chemical Examiner, Serologist, etc.--- Any document purporting
to be a report, under the hand of any Chemical Examiner or Assistant Chemical
Examiner to Government or any Serologist, Finger-print Expert or fire-arm Expert
appointed by Government 1[or of the Chief Chemist of the Pakistan Security
Printing Corporation Limited,] upon any matter or thing duly submitted to him
for examination or analysis and report in the course of any proceeding under
this Code, may, without calling him as a witness, be used as evidence in any
inquiry, trial or other proceeding under third Code:
Provided that the Court may, 2[if it consider necessary an the interest of
justice] summons and examine the person by whom such report has been made.]
511. Previous conviction or acquittal how proved.--- In any inquiry trial or
other proceeding under this Code, a previous conviction or acquittal may be
proved, in addition to any other mode provided by any law for the time being in
force-
(a) by an extract certified under the hand of the officer having the custody of
the records of the Court in which such conviction or acquittal was had to be a
copy of the sentence or order; or
(b) in case of a conviction, either by a certificate signed by the
officer-in-charge of the jail in which the punishment or any Part thereof was
inflicted, or by production of the warrant of commitment under which the
punishment was suffered;
together with, in each of such cases, evidence as to the identity of the accused
person with the person so convict or acquitted.
512. Record of evidence in absence of accused.--- (1) If it is proved that an
accused person has absconded, and that there is no immediate prospect of
arresting him the Court competent to try or 3[send for trial to the Court of
Session or High Court] such person for the offence complained of may, in his
absence examine the witnesses (if any) produced on behalf of the prosecution,
and record their depositions. Any such deposition may, on the arrest of such
person, be given in evidence against him on the inquiry into, or trial for, the
offence with which he was charged, if the deponent is dead or incapable of
giving evidence or his attendance cannot be procured without an amount of delay,
expense or inconvenience which, under the circumstances of the case, would be
unreasonable.
COMMENTARY
Basically object of section 512 Cr.P.C. is to procure and preserve evidence in
connection with an offence so that when accused is subsequently apprehended or
found and put on trial he may not be able to a take advantage of his absconder
or the evidence by lapse of time is not lost or disappear. It neither
facilitates the court to by-pass or ignore the mandatory provision of law
contained in section 353 Cr.P.C not it empowers the court to device its own
procedure qua examination of witnesses in disregard of the provision of Article
133 of the Qanun-e-Shahadat Order, 1984. It may be mentioned here that since,
the provisions of the Qanun-e-Shahadat Order, 1984 (hereinafter referred to as
the Order) as per section 1 (2) thereof apply to all judicial proceedings in or
before any court, including a court martial, a tribunal or other authority
exercising judicial or quasi-judicial powers or jurisdiction except an
arbitrator, therefore, the court was not at liberty to substitute for the
procedure of the “Orderâ€. --------------------------------------------------
Needless to point out that under section 537 Cr.P.C. too, the defects of mere
formal character arising from inadvertence can be cured and it is never intended
to allow a court to contravene or disobey express provisions of law. What to
speak of taking on record the earlier depositions, in order to satisfy the
requirement of law, in our view, it was not enough for the court to read over
the statements of the witnesses in the presence of the accused, treating it as
examination-in-chief. Such examination must had actually taken place in the
presence of the appellants. The procedure, adopted by the trial court therefore,
being materially different from that prescribed by law, cannot be approved.3a
(2) Record of evidence when offender unknown.--- If it appears that an offence
punishable with death or 3[imprisonment for life] has been committed by some
persons unknown, the High Court may direct that any Magistrate of the first
class shall hold an inquiry and examine any witness who can give evidence
concerning the offence. Any deposition so taken may be given in evidence against
any person who is subsequently accused of the offence, if the deponent is dead
or incapable of giving evidence or beyond limits of Pakistan.
CHAPTER XLII
PROVISIONS AS TO BONDS
513. Deposit instead of recognizance.--- When any person is required by any
Court or officer to execute a bond, with or without sureties such Court or
officer may, except in the case of a bond for goods behaviour, permit him to
deposit a sum of money of Government promissory notes to such amount as the
Court or officer may fix, in lieu of executing such bond,
514. Procedure on forfeiture of bond.--- (1) Whenever it is proved to the
satisfaction of the Court by which a bond under this Code has been taken, or of
the Court of a Magistrate of the first class.
or when the bond is for appearance before a Court, to the satisfaction of such
Court.
that such bond has been forfeited the Court shall record the grounds of such
proof, and may call upon any person bound by such bond to pay the penalty
thereof, or to show cause why it should not be paid.
(2) If sufficient cause is not shown and penalty is not paid, the Court may
proceed recover the same by issuing a warrant for the attachment and sale of the
movable property belonging to such person or his estate if he be dead.
(3) Such warrant may be executed within the local limits of the jurisdiction of
the Court which issued it; and it shall authorize the attachment and sale of any
movable property belonging to such person without such limits, when endorsed by
the 1[District Officer (Revenue)] within the local limits of whose jurisdiction
such property is found.
(4) If such penalty is not and cannot be recovered by such attachment and sale,
the person so bound be liable, by order of the Court which issued the warrant,
to imprisonment in the civil jail for a term which may extend to six months.
(5) The Court may, at its discretion, remit any portion of the penalty mentioned
and enforce payment in part only.
(6) Where a surety to a bond dies before the bond is forfeited, his estate shall
be discharged from all liability in respect of the bond.
(7) When any person who has furnished security under section 106 or section 118
2[x x x x x] is convicted of an offence the commission of which constitutes a
breach of the conditions of his bond, or of a bond executed in lieu of his bond
under section 514B, a certified copy of the judgment of the Court by which he
was convicted of such offence may be used as evidence in proceedings under this
section against his surety or sureties, and, if such certified coy is so used,
the Court shall presume that such offence was committed by him unless the
contrary is proved.
514-A. Procedure in case of insolvency or death of surety or when a bond is
forfeited.--- When any surety to a bond under this Code become insolvent or
dies, or when any bond is forfeited under the provisions of section 514, the
Court, by whose order such bond was taken, or a Magistrate of the first class,
may order the person from whom such security was demanded to furnish fresh
security in accordance with the directions of the original order, and, if such
security is not furnished, such Court or Magistrate may proceed as if there had
been a default in complying with such original order.
514-B. Bond required from a minor.--- When the person required by an Court or
officer to execute a bond is a minor, such Court or officer may accept, in lieu
thereof, a bond executed by a surety or sureties only.
1[515. Appeal from, and revision of, orders under section 514.--- 2[All order
passed by any Magistrate under sections 514 shall be appealable to the Sessions
Judge or, if no appeal is preferred against any such order, may be revised by
the Sessions Judge]
516. Power to direct levy of amount due on certain recognizance.--- The High
Court or Court of Session may direct any Magistrate to levy the amount due on a
bond to appear and attend at such High Court or Court of Session.
CHAPTER XLIII
OF THE DISPOSAL OF PROPERTY
516A. Order for custody and disposal of property pending trial in certain
cases.--- When any property regarding which any offence appears to have been
committed, or which appears to have been used for the commission of any offence,
is produced before any Criminal Court during any inquiry or trial, the Court may
make such order as it thinks fit for the proper custody of such property pending
the conclusion of the inquiry or trial, and, if the property is subject to
speedy or natural decay, may, after recording such evidence as it thinks
necessary, order it to be sold or otherwise disposed of:
6[Provided that if the property consist of explosive substances, the Court shall
not order it to be sold or handed over to any person other than Government
Department or officer dealing with, or to an authorised dealer in such
substances:]
7[Provided further that if the property is a dangerous drug, intoxicant,
intoxicating liquor or nay other narcotic substance seized or taken into custody
under the Dangerous Drugs Act, 1930 (II of 1930), the Customs Act, 1969 (IV of
1969), the Prohibition (Enforcement of Hadd) Order, 1979 (P.O. 4 of 1979), or
any other law for the time being in force, the Court may, either on an
application or of its own motion and under its supervision and control, obtain
and prepare such number of samples of the property as it may deem fit for safe
custody and production before it or any other Court and cause destruction of the
remaining portion of the property under a certificate issued by it in that
behalf:
Provided also that such samples shall be deemed to be whole of the property in
an inquiry or proceedings in relation to such offence before any authority or
Court].
517. Order for disposal of property regarding which offence committed.—(1) When
an inquiry or a trial in any Criminal Court is concluded, the Court may make
such order as it thinks fit for the disposal by destruction, confiscation or
delivery to any person claiming to be entitled to possession thereof or
otherwise of any property or document produced before it or in its custody or
regarding which any offence appears to have been committed, or which has been
used of the commission of any offence.
(2) When a High Court or a Court of Session makes such order and cannot through
its own officers conveniently deliver the property to the person entitled
thereto, such Court may direct that the order be carried into effect by the
1[District Officer (Revenue)].
(3) When an order is made under this section such order shall not except where
the property is live-stock or subject to speedy and natural decay, and save as
provided by sub-section (4),be carried out for one month or, when an appeal is
presented, until such appeal has been disposal of.
(4) Nothing in this section shall be deemed to prohibit any Court from
delivering any property under the provisions of sub-section (1) to any person
claiming to the entitled to the possession thereof, on his executing a bond with
or without sureties to the satisfaction of the Court, engaging to restore such
property to the Court if the order made under this section is modified or set
aside on appeal.
Explanation. In this section the term “property†includes in the case of
property regarding which an offence appears to have been committed, not only
such property as has been originally in the possession or under the control of
any party, but also any property into or for which the same may have been
converted or exchanged, and anything acquired by such convicted or exchange,
whether immediately or otherwise.
518. Order may take form of reference 2[***]--- In lieu of itself pass in n
order section 517, the Court may direct the property to be delivered to 3[a
Magistrate of the first class] who shall in such cases deal with it as if it has
been seized by the police and the seizure had been reported to him in the manner
hereinafter mentioned.
519. Payment to innocent purchaser of money found on accused.--- When any person
is convicted of any offence which includes, or amounts to, theft or receiving
stolen property, and, it is proved that any other person has bought the stolen
property from him without knowing, or having reason to believe, that the same
was stolen, and that any money has no his arrest been taken out of the
possession of the convicted person, the Court may, on the application of such
purchaser and on the restitution of the stolen property to the person entitled
to the possession thereof order that out of such money a sum not exceeding the
price paid by such purchaser be delivered to him.
520. Stay of order under section 517, 518 or 519.--- Any Court of appeal,
confirmation, reference or revision may direct any order under section 517,
section 518 or section 519, passed by a Court subordinate thereto, to be stayed
pending consideration by the former Court, and may modify, alter or annual such
order and make an further orders that may be just.
521. Destruction of libelous and other matter.--- (1) On a conviction under the
Pakistan Penal Code, section 292, section 293, section 501 or section 502, the
conviction was had, and which are in the custody of the Court or remain in the
possession or power of the person convicted.
(2) The Court may, in like manner, on a conviction under the Pakistan Penal
Code, section 272, section 273, section 274, or section 275 order the food,
drink, drug or medical preparation in respect of which the conviction was had to
be destroyed.
522. Power to restore possession of immovable property.--- (1) Whenever a person
is convict of an offence 8[of cheating, forgery or of an offence] attended by
criminal for or show of force or by criminal intimidation and it appears to
Court that by such 9[cheating, forgery,] force or show of force of criminal
intimidation any person has been dispossessed of any time within one month from
the date of the conviction order the person dispossessed to be restored to the
possession of the same 1[whether such property is in the possession or under the
control of the person convicted or of any other person to whom it may have been
transferred for any consideration or otherwise.]
(2) No such order shall prejudice any right to interest to or in such immovable
property which any person may be able to establish in a civil suit.
(3) An order under this section may be made by any Court of appeal,
confirmation, reference or revision.
2[522-A. Power to restore possession of movable property.--(1) Whenever person
is convicted of an offence of criminal misappropriation of property or criminal
breach of trust or cheating or forgery, any person has been dispossessed or
otherwise deprived of any movable property, the Court may if it thinks fit, when
convicting such person dispossessed or deprived of the property where such
property can be identified, to be restored to the possession of such property,
whether such property is in the possession or under the control of the person
convicted or of any other person to whom it may have been transferred for any
consideration or otherwise.
(2) Where the property referred to in sub-section 91) cannot be identified or
has been disposed of by accused so that it may not be identified, the Court may
order such compensation to be paid to the person dispossessed or deprived of
such property as it may determine in the circumstances of the case.
(3) No order reference to in sub-section (1) or sub-section (2) shall prejudice
any right or interest in any movable property which any person may be able to
establish in a civil suit]
523. Procedure to police upon seizure of property taken under section 51 or
stolen.---(1) The seizure by any police officer of property taken under section
51, or alleged or suspected to have been stolen, or found under circumstances
which create suspicion of the commission of any offence, shall be forthwith
reported to a Magistrate, who shall make such order as he thinks fit respecting
the disposal of such property or the delivery of such property to the person
entitled to the possession thereof, or, if such person cannot be ascertained,
respecting the custody and production of such property.
(2) Procedure where owner of property seized unknown. If the person so entitled
is known, the Magistrate may order the property tobe delivered to him on such
conditions (if any) as the Magistrate thinks fit. If such person is unknown, the
Magistrate may detain it and shall in such case, issue a proclamation specifying
the articles of which such property consists, and requiring any person who may
have a claim thereto, to appear before him and establish his claim within six
months from the date of such proclamation.
524. Procedure where no claimant appears with six months.--- (1) If no person
within such period establishes his claim to such property, and if the person in
whose possession such property was found, is unable to show that it was legally
acquired by him, such property shall be at the disposal of the Provincial
Government and may to sold under the orders of the 1[Magistrate of the first
class] empowered by the Provincial Government in this behalf.
(2) In the case of every order passed under this section an appeal shall lie to
the Court to which appeals against sentences of the Court passing such order
would lie.
525. Power to sell perishable property.--- If the person entitled to the
possession of such property is unknown or absent and the property subject to
speedy and natural decay or if the Magistrate to whom its seizure is reported is
of opinion that its sale would be for the benefit of the owner, or that the
value of such property is less than ten rupees, the Magistrate may at any time
direct it to be sold; and the provisions of section 523 and 524 shall, as nearly
as may be practicable, apply to the net proceeds of such sale.
CHAPTER XLIV
OF THE TRANSFER OF CRIMINAL CASES
526. High Court may transfer case or itself try it.--- (1) Whenever it is made
to appear to the High Court:---
(a) that a fair and impartial inquiry or trial cannot be had in any Criminal
Court subordinate thereto, or
(b) that some question of law of unusual difficulty is likely to arise, or
(c) that a view of the place in or near which any offence has been committed may
be required for the satisfactory inquiry into or trial of the same, or
(d) that an order under this section will tend to the general convenience of the
parties or witnesses, or
(e) that such an order expedient of the ends of justice, or is required by any
provision of this Code;
it may order:---
(i) that any offence by inquired into or tried by any Court not empowered under
sections 177 to 184 (both inclusive), but in other respects competent to inquire
into or try such offence;
(ii) any particular case or appeal, or class of cases or appeals, be transferred
from a Criminal Court subordinate to its authority to any other such Criminal
Court of equal or superior Jurisdiction;
(iii) that any particular case or appeal be transferred to and tried before
itself; or
(iv) that an accused person 4[sent] for trial to itself or to a Court of
Session.
(2) When the High Court withdraws for trial before itself any case from any
Court it shall 5[x x x x x] observe in such trial the same procedure which that
Court would have observed if the case had not been so withdraw.
(3) The High Court may act either on the report of the lower Court, or on the
application of a party interested, or on its own initiative.
(4) Every application for the exercise of the power conferred by this section
shall be made by motion, which shall, except when the applicant is the Advocate
General, be supported by affidavit or affirmation.
(5) When an accused person makes an application under this section the High
Court may direct him to execute a bond, with or without sureties, conditioned
that he will, if so ordered, pay any amount which the High Court may under this
section award by way of compensation to the person opposing the application.
(6) Notice of Public Prosecutor of application under this section. Every accused
person making any such application shall give to the Public Prosecutor notice in
writing of application, together with a copy of the grounds on which it is made;
and no order shall be made on the merits of the application unless at least
twenty-four hours have elapsed between the giving of such notice and the hearing
of the application.
(6A) Where any application for the exercise of the power conferred by this
section is dismissed, the High Court may if it is of opinion that the
application was frivolous or vexatious, order the applicant to pay by way of
compensation to any person who has opposed the application such sum not
exceeding 6[five hundred rupees] as it may consider proper in the circumstances
of the case.
(7) Nothing in this section shall be deemed to affect any order under section
197.
7[(8) In an inquiry under Chapter VIII or an trial, the fact that any party
intimates to the Court at any stage that he intends to make an application under
this section shall not require the Court to adjourn the case; but the Court
shall not pronounce its final judgment or order until the application has been
finally disposed of by the High Court and if the application is accepted by the
High Court, the option of the accused, be held afresh.]
(9) [Omitted by Act XXI of 1976].
(10) If, before the argument (if any) for the admission of an appeal begins, or,
in the case of an appeal admitted, before the argument for the appellant begins,
any party interested intimates to the Court that he intends to make an
application under this section, the court shall, upon such party executing, if
so required, a bond without sureties of an amount not exceeding 8[five hundred
rupees] that he will make such application within a reasonable time to be fixed
by the Court, postpone the appeal for such a period as will afford sufficient
time for the application to be made and an order to be obtained thereon.
526-A. High Court to transfer for trial to itself in certain cases.--- [Omitted
by Ordinance XX of 1969].
527. Power of Provincial Government to transfer cases and appeals.--(1) The
Provincial Government may, by notification in the official Gazette, direct the
transfer of any particular case or appeal from one High Court to another
justice, or tend to the general convenience of parties or witnesses:
Provided that no case or appeal shall be transferred to a High Court or other
Court in another Province without the consent of the Provincial Government of
that Province.
(2) The Court to which such case or appeal is transferred shall deal with the
same as if it had been originally instituted in, or presented to, such Court.
528. [Sessions Judge may withdraw cases from Assistant Sessions Judge.--- (1)
Any Sessions Judge may withdraw any case from, or recall any case which he has
made over to, any Assistant Sessions Judge subordinate to him.
(1A) An any time before the trial of the case of the hearing of the appeal has
commenced before the Additional Sessions Judge, any Sessions Judge may recall
any case or appeal which he has made over to any Additional Sessions Judge.
(1B) Where a Sessions Judge withdraws or recalls a case under sub-section (1) or
recalls a case of appeal under sub-section (1A), he may either try the case in
his own Court or hear the appeal himself, or make it over in accordance with the
provisions of this Code to another Court for trial or hearing, as the case may
be.
9[(1C) Any Sessions Judge may withdraw any case from, or recall any case which
he has made over to, any Magistrate subordinate to him, and may refer it for
inquiry or trial to any to other such Magistrate competent to inquire into or
try the same.
1[***]
(2) & (3) [Omitted by Law Reforms Act, XXI of 1976].
(4) Any Magistrate may recall any case made over by him under section 192,
sub-section (2), to any other Magistrate and may inquire into or try such case
himself.
(5) A Magistrate making an order under 2[preceding sub-section] shall record in
writing his reasons for making the same.
528-A. [Omitted by Ord. XXXVII of 2001 dated 13/8/2001]
CHAPTER XLIV-A.---[SUPPLEMENTARY PROVISIONS RELATING TO EUROPEAN AND PAKISTAN
BRITISH SUBJECTS AND OTHERS]. Omitted by the Criminal Law (Extinction of
Discriminatory Privileges) Act, 1949 (II of 1950), Schedule.
CHAPTER XLV
OF IRREGULAR PROCEEDINGS
529. Irregularities which d o not vitiate proceedings.--- If any Magistrate not
empowered by law to do any of the following things, namely:
(a) to issue a search-warrant under section 98;
(b) to order, under section 155, the police to investigate an offence;
(c) to hold an inquest under section 176;
(d) to issue process, under section 186, for the apprehension of a person within
the local limits of his jurisdiction who has committed an offence outside such
limits;
(e) to take cognizance of an offence under section 190, sub-section (1), clause
(a) or clause (b);
(f) to transfer a case under section 192;
(g) to tender a pardon under section 337 or section 338;
(h) to sell property under section 524 or section 525; or
(i) to withdraw a case and try himself under section 528;
erroneously in good faith does that thing, his proceedings shall not be set
aside merely on the ground of his not being so empowered.
530. Irregularities which vitiate proceedings.--- If any Magistrate, not being
empowered by law in this behalf, does any of the following things, namely:---
(a) attaches and sells property under section 88;
(b) issues a search-warrant for a letter, parcel or other thing in the Post
Office or a telegram in the Telegraph Department;
(c) demands security to keep the peace;
(d) demands security for good behaviour;
(e) discharges a person lawfully bound to be of good behaviour;
(f) cancels a bond to keep the peace;
(g) makes an order under section 133, as to a local nuisance;
(h) prohibits, under section 143, the repetition or continuance of public
nuisance;
(i) issues an order under section 144;
(j) makes an order under Chapter XII;
(k) takes cognizance under section 190; sub-section (1), clause (c), of an
officer;
(l) passes a sentence, under section 349, on proceeding recorded by another
Magistrate;
(m) calls under section 435; for proceedings;
(n) [Omitted by Ordinance, XXVII of 1981].
(o) revises, under section n515, an order passed under section 514;
(p) tries an offender;
(q) tries an offender summarily; or
(r) decides an appeal;
his proceedings shall be void.
531. Proceedings in wrong place.--- No findings, sentence or order of any
Criminal Court shall be set aside merely on the ground that he inquiry, trial or
other proceedings in the course of which it was arrived at or passed, took place
in a wrong sessions division, district, sub-division or other local area, unless
it appears that such error has in fact occasioned a failure of justice.
532. [Omitted by Law Reforms Ordinance, 1972].
533. Non-compliance with provision of section 164 or 364.--- (1) If any Court,
before which a confession or other statement of an accused person recorded or
purporting to be recorded under section 164 or section 364 is tendered or has
been received in evidence, finds that any of the provisions of either of such
section have not been complied with by the Magistrate recording the statement,
it shall take evidence that such person duly made the statement recorded; and,
notwithstanding anything contained in the Evidence Act, 1872, section 91, such
statement shall be admitted if the error his not injured the accused as to his
defence on the merits.
(2) The provisions of this section apply to Courts of Appeal, Reference and
Revision.
534. [Omitted to give information under section 447].--- Omitted by the Criminal
Law (Extinction of Discriminatory Privileges) Act, 1949 (II of 1950), Schedule.
535. Effect of Omission to Prepare change.--- (1) No finding or sentence
pronounced or passed shall be deemed invalid merely on the ground that no charge
was framed unless in the opinion of the Court of appeal or revision, a failure
of justice has in fact been occasioned thereby.
(2) If the Court of appeal or revision thinks that a failure of justice has been
occasioned by an omission to frame a charge, it shall order that a charge be
framed, and that the trial be recommenced from the point immediately after the
framing of the charge.
536. [Omitted by Law Reforms Ordinance, 1972].
11[537. Finding or sentence when reversible by reason of error or omission in
charge or other proceedings.--- Subject to provisions hereinbefore contained, no
finding, sentence, order passed by a Court of competent jurisdiction shall be
reversed or altered under Chapter XXVII or on appeal or revision on account---
(a) of any error, omission or irregularity in the complaint, report by police
officer under section 173, summons, warrant, charge, proclamation, order,
judgment or other proceedings before or during trial or in any inquiry or other
proceedings under this Code, or
(b) of any error, omission or irregularity in the mode of trial, including any
misjoinder of charges,
unless such error, omission or irregularity has in fact occasioned a failure of
justice.
Explanation. In determining whether any error, omission or irregularity in any
proceeding under this Code has occasioned a failure of justice, the Court shall
have regard to the fact whether the objection could and should have been raised
at an earlier stage in the proceedings.
538. Attachment not illegal, person making same not trespasser for defect or
want of form in proceedings.--- No attachment made under this Code shall be
deemed unlawful, nor shall person making the same to be deemed a trespasser, on
account of any defect or wart of form in the summons, conviction, writ of
attachment or other proceedings relating thereto.
_____________
CHAPTER XLVI
MISCELLANEOUS
539. Court and person before whom affidavits may be sworn.-Affidavits and
affirmations to be used before any High Court or any officer of such Court may
be sworn and affirmed before such Court 1[x x x x] or any Commissioner or other
person appointed by such Court for that purpose, or any Judge, or any
Commissioner for taking affidavits in any Court of Record in Pakistan. 2[x x x
x].
539-A. Affidavits in proof of conduct of public servant.--- (1) When any
application is made to any Court in the course of any inquiry, trial or other
proceedings under this Code, and allegations are made therein respecting any
public servant, the applicant may give evidence of the facts alleged in the
applications by affidavit, and Court may if it thinks fit, order that evidence
relating to such facts by so given.
An affidavit to be used before any Court other than a High Court under this
section may be sworn or affidavit in the manner prescribed in section 539, or
before any Magistrate.
Affidavits under this section shall be confined to, and shall state separately,
such facts as the deponent is able to prove from his own knowledge and such as
he has reasonable grounds to believe to be true, and in the latter case, the
deponent shall clearly state the grounds of such belief.
(2) The Court may order any scandalous and irrelevant matter in any affidavit to
be struck out or amended.
539-B. Local inspection.--- (1) Any Judge or Magistrate may at any stage make
any inquiry, trial or proceeding, after due notice to the parties visit and
inspect and place in which an offence is alleged to have been committed, or any
other place which it is in his opinion necessary to view for the purpose of
properly appreciating the evidence given at such inquiry or trial, and shall
without unnecessary delay record a memorandum of any relevant facts observed at
such inspection.
(2) Such memorandum shall form part of the record of the case if the Public
Prosecutor, complainant or accused so desires, a copy of the memorandum shall be
furnished to him free of cost.
3[x x x x]
540. Power to summons material witness or examine persons present.--- Any Court
may, at any inquiry, trial or other proceeding under this Code, summon any
person so a witness, or examine any person in attendance, though not summoned as
a witness, or recall and re-examine any person already examined: and the Court
shall summon and examine or recall and re-examine any such person if his
evidence appears to it essential to the just decision of the case.
COMMENTARY
Power to summon material witnesses or examine persons present. – held; power
bestowed upon the Court under section 540 Cr.P.C. is not only discretionary but
obligatory as well in the sense that if in the circumstances of a case it
appears to the Court, that examination of any person/witness is essential for
just decision of the case, then the Court would have no option but to summon and
examine him. Needless to point out that in such an eventuality action taken by
the Court under section 540 Cr.P.C. would not be termed or regarded as a step
towards filling of gaps and question of prejudice to the accused would also not
arise because in doing so the Court would be giving effect to a provision of
law.3a
540A. Provision of inquiries and trial being held in the absence of accused in
certain cases.--- (1) At any stage of an inquiry or trail under this Code, where
two or more accused are before the Court, if the Judge or Magistrate is
satisfied for reason to be recorded, that any one or more of such accused is or
are incapable of remaining before the Court, he may, if such accused is
represented by a pleader, dispense with his attendance and proceed with such
inquiry or trial in his absence, and may, at any subsequent stage of the
proceedings, direct the personal attendance of such accused.
(2) If the accused in any such case is not represented by a pleader or if the
Judge or Magistrate considers his personal attendance necessary, he may, if he
thinks fit, and for reasons to be recorded by him either adjourn such inquiry or
trial, or under that the case of such accused be taken up or tried separately.
541. Power to appoint place of imprisonment.--- (1) Unless when otherwise
provided by any law for the time being in force, the Provincial Government may
direct in what place any person liable to be imprisonment or committed to
custody under this Code shall be confined.
(2) Removal to criminal jail of accused or convicted person who are in
confinement in civil jail, and their return to the civil jail. If any person
liable to be imprisonment or committed to custody under this Code is in
confinement in a civil jail the Court or Magistrate ordering the imprisonment or
committal may direct that the person be removed to a criminal jail.
(3) When a person is removed to a criminal jail under sub-section (2) he shall,
on being released therefrom, be sent back to the civil jail, unless either---
(a) three years have elapsed since he was removed to the criminal jail in which
case he shall be deemed to have been discharged from the civil jail under
section [58 of the Code of Civil Procedure, 1908]; or
(b) the Court which ordered his imprisonment in the civil jail has certified to
the officer-in-charge of the criminal jail that he is entitled to be discharged
under section [58 of the Code of Civil Procedure, 1908].
542. [Power of Presidency Magistrate to order prisoner in ail to be brought up
for examination.] Rep. by the Federal Laws (Revision and Declaration) Act, 1951
(26 of 1951), S. 3 and II Schedule.
543. Interpreter to be bound to interpret truthfully.--- When the services of an
interpreter are required by any Criminal Court for the interpretation of any
evidence or statement, he shall be state the true interpretation of such
evidence or statement.
544. Expenses of complainants and witness.--- Subject to any rules made by the
Provincial Government any Criminal Court may, if it thinks fit, order payment,
or the part of Government, of the reasonable expenses of any complainant or
witness attending for the purposes of any inquiry, trial, or other proceeding
before such Court under this Code.
4[544-A. Compensation to the heirs of the person killed, etc.--- 5[(1) Whenever
a person is convicted of an offence in the commission whereof the death of, or
hurt, injury, or mental anguish or psychological damage to, any person is
caused, or damage to or loss or destruction of any property is caused, the Court
shall when convicting such person, unless for reasons to be recorded in writing
it otherwise directs, order the person convicted to pay to the heirs of the
person whose death has been caused, or to the person hurt or injured, or to the
owner of the property damaged, lost or destroyed, as the case may be, such
compensation as the Court may determine having regard to the circumstances of
the case.]
(2) The compensation payable under sub-section (1) shall be recoverable as 6[an
arrear of land revenue] and the Court may further order that, in default of
payment 7[or of recovery as aforesaid] the person ordered to pay such
compensation shall suffer imprisonment for a period not exceeding six months, or
if it be a Court of the Magistrate of the third class, for a period not
exceeding thirty days.
(3) The compensation payable under sub-section (1) shall be in addition to any
sentence which the Court impose for the offence of which the person directed to
pay compensation has been convicted.
(4) The provisions of sub-section (2B), (2C) and (3) of section 250, shall, as
far as may be, apply to payment of compensation under this section.
(5) An order under this section may also be made by an Appellate Court or by a
Court when exercising its powers to revision.]
COMMENTARY
S. 544-A, Cr.P.C. being mandatory accused was directed to pay rupees one lac
only to the legal heirs of the deceased or to suffer in default six months’
R.I.7a
545. Power of Court to pay expense, compensation out of fine.--- (1) Whenever
under any law in force for the time being a Criminal Court imposes a fine or
confirms in appeal, revision or otherwise sentence of fine, or a sentence of
which fine forms a part, the Court may when passing judgment, order the whole or
any part of the fine recovered to be applied---
(a) in defraying expenses properly incurred in the prosecution;
(b) in the payment to any person of compensation for any loss, 8[injury or
mental anguish or psychological damage] caused by the offence, when substantial
compensation is, in the opinion of the Court, recoverable by such person in a
Civil Court;
(c) when any person is convicted of any offence which includes theft, criminal
misappropriation, breach of trust, or cheating, or of having dishonestly
received or retained or of having voluntarily assisted in disposing of, stolen
property knowing or having reason to believe the same to be stolen, in
compensation any bona fide purchaser, of such property for the loss of the same
if such property is restored to the possession of the person entitled thereto.
(2) If the fine is imposed in a case which is subject to appeal, no such payment
shall be made before the period allowed for presenting the appeal has elapsed,
or, if any appeal be presented, before the decision of the appeal.
546. Payment to be taken into account in subsequent suit.--- At the time of
awarding compensation in any subsequent civil suit relating to the same matter,
the Court shall take into account any sum paid or recovered as compensation
under section 9[544A or section] 545.
546-A. Order of payment of certain fees paid by complainant in non-cognizable
cases.--- (1) Whenever any complaint of a non-cognizable offence is made to a
Court, the Court, if it convicts the accused, may, in addition to the penalty
imposed upon him, order him to pay to the complainant.---
(a) the fee (if any) paid on the petition of complaint or for the examination of
the complainant, and
(b) any fess paid by the complainant for serving processes on his witnesses or
on the accused.
and may further order that, in default of payment, the accused shall suffer
simple imprisonment for a period not exceeding thirty days.
(2) An order under this section may also be made by an Appellate Court, or by
the High Court, when exercising its powers of revision.
547. Moneys ordered to be paid recoverable as fines.--- Any money (other than a
fine) payable by virtue of any order made under this Code, and the method of
recovery of which is not otherwise expressly provided for shall be recoverable
as if it were a fine.
548. Copies of proceedings.--- If any person affected by a judgment or order
passed by a Criminal Court desires to have a copy of 1[x x x x] any order or
deposition or other part of the record he shall, on applying for such copy, be
furnished therewith.
Provided that he pays for the same, unless the Court, for some special reason,
thinks fit to furnish it free of cost.
549. Delivery to military authorities of persons liable to be tried by
Court-martial.--- (1) The Central Government may made rules consistent with this
Code and the 2[Pakistan Army Act, 1952 (XXXIX of 1952), the Pakistan Air Force
Act, 1953 (VI of 1953), and the Pakistan Navy Ordinance, 1961 (XXXV of 1961)]
and any similar law for the time being in force as to the cases in which person
subject to military, naval or air force law, shall be tried by a Court to which
his Code applies, or by Court-martial, and where any person is brought before a
Magistrate and charged with an offence for which he is triable either by a Court
to which this Code applies or by a Court-martial, such Magistrate shall have
regard to such rules, and shall in proper cases deliver him together with a
statement of the offence of which he is accused to the Commanding Officer of the
regiment, corps, ships or detachment to which he belongs, or to the Commanding
Officer of the nearest military, naval or air force station, as the case may be,
for the purpose of being tried by Court-martial.
(2) Apprehension of such person. Every Magistrate shall, on receiving a written
application for that purpose by the Commanding Officer of any body of soldier,
sailors or airmen stationed or employed at any such place, use his utmost
endeavours to apprehend and secure and person accused of such offence.
3[(3) Notwithstanding anything contained in this Code, if the person arrested by
the police is a person subject to the Pakistan Army Act, 1952 (XXXIX of 1952)
and the offence for which he is accused is triable by a Court-martial, the
custody of such person and the investigation of the offence of which he is
accused may be taken over by the Commanding Officer of such person under the
said Act.]
550. Powers to Police to seize property suspected to be stolen.-Any police
officer may seize any property which may be alleged or suspected to have been
stolen, or which may be found under circumstances which create suspicion of the
commission of any offence. Such a police officer, if subordinate to the
officer-in-charge of a police station, shall forthwith report the seizure to
that officer.
551. Powers to superior officers of police.--- Police officers superior in rank
to an officer-in-charge of a police station may exercise the same powers,
throughout the local area to which they are appointed, as may be exercised by
such officer within the limits of his station.
552. Power to compel restoration of abducted females.--- Upon complaint made to
a 4[Sessions Judge] on oath of the abduction or unlawful detention of a woman,
or of a female child under the age of sixteen years, for any unlawful purpose,
he may be an order for the immediate restoration of such woman to her liberty or
of such female child to her husband, parent, guardian or other person having the
lawful charge of such child, and may compel compliance with such order, using
such force as may be necessary.
553. [Compensation to person groundlessly given in charge in Presidency Town].
Rep., by the Federal Laws (Revision and Declaration) Act, 1951 (XXVI of 1951),
S. 3 and IInd Schedule.
554. Power of 4[x x x] High Courts to make rules of inspection of records of
subordinate Courts.--- (1) With the previous sanction of the Provincial
Government, and High Court may from time to time, make rules for the inspection
of the records of subordinate Courts.
(2) Power of 5[x x x] High Courts to make rules for other purposes. Every High
Court may, from time to tome, and with the previous sanction of Provincial
Government:---
(a) make rules for keeping all books, entries and accounts to be kept in all
Criminal Courts subordinate to it, and for the preparation and transmission of
any returns or statements to be prepared and submitted by such Courts;
(b) frame forms for every proceeding in the said Courts for which it thinks that
a form should be provided;
(c) make rules regulating its own practice and proceedings and the practice and
proceedings of all Criminal Courts subordinate to it;
(d) make rules for regulating the execution of warrants issued under this Code
for the levy of fines:
Provided that the rules and forms made and framed under this section shall be
inconsistent with this Code or any other law in force for the time being.
(3) All rules made under this section shall be published in the official
Gazette.
555. Forms.--- Subject to the power conferred by section 554 and by 6[Articles
202 and 203] of the Constitution, the forms set forth in the Fifth Schedule,
with such Cariation as the circumstances of each case require, may be used for
the respective purposes therein mentioned, and if used shall be sufficient.
556. Case in which Judge or Magistrate is personally interested.--- No Judge or
Magistrate shall, except with the permission of the Court to which an appeal
lies from his Court, try 7[x x x x] any case to or in which he is a party, or
personally interested, and no Judge or Magistrate shall hear an appeal from any
judgment or order passed or made by himself.
Explanation. A Judge or Magistrate shall not be deemed a party, or personally
interested, within the meaning of this section, to or in any case by reason only
that he is a Municipal Commissioner or otherwise concerned therein a public
capacity, or by reason only that he has viewed the place in which an offence is
alleged to have been committed, or any other place in which any other
transaction material to the case is alleged to have occurred, and made an
inquiry in connection with the case.
Illustration
A, as Collector, upon consideration of information furnished to him directs
prosecution of B for a branch of the Excise Laws. A is disqualified from trying
this case as a Magistrate.
557. Practicing pleader not to sit as Magistrate in certain Courts.--- No
pleader who practices in the Court of any Magistrate in a district, shall sit as
a Magistrate in such Court or in any Court within the jurisdiction of such
Court.
558. Power to decide language of Courts.—The Provincial Government may determine
what, for the purposes of this Code, shall be deemed to be the language of each
Court within the territories administered by such Government, other than the
High Court.
559. Provisions for powers of Judges and Magistrates being exercised by their
successors-in-office.--- (1) Subject to the other provisions of this Code, the
powers and duties of a Judge or Magistrate may be exercised or performed by his
successor-in-office.
(2) When there is any doubt as to who is the successor-in-office of any
Magistrate, 8[the Session Judge 8a[***] shall determine by order in writing the
Magistrate who shall, for the purposes of this Code or of any proceedings or
order thereunder, be deemed to be the successor-in-office of such Magistrate.
(3) When there is any doubt as to who is the successor-in-office of any
Additional or Assistant Sessions Judge, the Sessions Judge shall determine by
order in writing the Judge who shall, for the purposes of this Code or of any
proceedings or order thereunder, be deemed to be the successor-in-office of such
Additional or Assistant Sessions Judge.
560. Officer concerned in sales not to purchase of bid for property.--- A public
servant having any duty to perform in connection with the sale of any property
under this Code shall not purchase or bid for the property.
561. repealed by Ord. VII of 1979
561-A. Saving of inherent power of High Court.--- Nothing in this Code shall be
deemed to limit or affect inherent power of the High Court to make such orders
as may be necessary to given effect to any order this Code, or to prevent abuse
of the process of any Court or otherwise to secure the ends of justice.
COMMENTARY
Inherent jurisdiction --- Inherent powers of Courts are extraordinary and
intended to be used only in extraordinary cases where no other remedy is
available to do the real and substantial justice --- Such order of granting
desired relief can be passed by High Court in a hardship case under its inherent
jurisdiction in order to prevent abuse of process of any Court or otherwise to
secure the ends of justice.
Inherent powers of High Court cannot be exercised for doing that which is not
allowed by law in cases where the provisions of law are clear --- Where
Legislature has not granted the right of appeal to private complainant, recourse
cannot be had to the inherent jurisdiction of High Court and Court cannot go
counter to the mandate of Legislature by relying upon its inherent power to
grant relief.8a
1[562. Powers of Court to release certain convicted offenders on probation of
good conduct instead of sentencing to punishment.--- When any person not under
twenty-one years of age is convicted of an offence punishable with imprisonment
for not more than seven years, or when any person under twenty-one years of age
or any woman is convicted of an offence not punishable with death or
imprisonment for life, and no previous conviction proved against the offender,
if it appears to the Court before which he is convicted, regard being had to the
age, character or antecedents of the offender, and to the circumstances in which
the offence was committed, that it is expedient that the offender should be
released on probation of goods conduct, the Court may, instead of sentencing him
at once to any punishment, direct that he be released on his entering intoa
bond, with or without sureties, to appear and receive sentence when called upon
during such period (not exceeding three years) as the Court may direct, and the
meantime to keep the peace and be of goods behaviour:
Provided that, where any first offender is convicted by a Magistrate of the
third class, or a Magistrate of the second class not specially empowered by the
Provincial Government in this behalf, and the Magistrate is of opinion that the
powers conferred by this section should be exercised, he shall record his
opinion to that effect and submit the proceedings to a Magistrate of the first
class or Sub-divisional Magistrate, forwarding the accused to, or taking bail
for his appearance before, such Magistrate who shall dispose of the case in
manner provided by section 380.
(1A) Conviction and release with admonition. In any case in which a person is
convicted of theft, theft in a building, dishonest misappropriation, cheating or
any offence under the proved against him, the Court before whom he is so
convicted may, if it thinks fit, having regard to the age, character,
antecedents or physical or mental condition of the offender and to the trivial
nature of the offence of any extenuating circumstances under which offence was
committed, instead of sentencing him to any punishment, release him after due
admonition.
(2) An order under this section may be made by any Appellate Court or by the
High Court when exercising its power of revision.
(3) When an order has been made under this section in respect of any offender,
the Court may, on appeal when there is a right of appeal to such Court, or when
exercising its power of revision, set aside such order and in lieu thereof pass
sentence on offender according to law:
Provided that the High Court shall not under this sub-section inflict a greater
punishment than might have been inflicted by the Court by which the offender was
convicted.
(4) The provision of sections 122, 226A and 406A shall, so far as may be, apply
in the case of sureties offered in pursuance of the provisions of this section.]
2[563. Provisions in case of offender failing to observe conditions of the
recognizance.--- (1) If the Court which convicted the offender, or a Court which
could have dealt with the offender in respect of his original offence, is
satisfied that the offender has failed to observe any of the condition of his
recognizance; it may issue a warrant for his apprehension.
(2) An offender, when apprehended on any such warrant, shall be brought
forthwith before the Court issuing the warrant, and such Court may either demand
him in custody until the case is ahead or admit him to bail with a sufficient
surety conditional his appearing for sentence. Such court may, after hearing the
case, pass sentence.]
564. Conditions as to abode of offender.--- (1) The Court before directing the
release of an offender under section 562, sub-section (1), shall be satisfied
that the offender or his surety (if any) has a fixed place or abode or regular
occupation in the place for which the Court acts or in which the offender is
likely to live during the period named for the observance of the conditions.
(2) Nothing in this section or in sections 562 and 563 shall affect the
provisions of section 31 of the Reformatory Schools Act, 1897.]
Previously convicted offender
565. Order for notifying address of previously convicted offender.--- (1) When
any person having been convicted--
(a) [Omitted by Ordinance XL of 1996].
(b) [Omitted by Ordinance 27 of 1981].
is again convicted of any offence punishable under any of these sections or
chapters with imprisonment for a term of three years or upward by a High Court,
Court of Session 3[x x x x] or Magistrate of the First sentence of 4[x x x x]
imprisonment on such person, also order that his residence and any drainage of
or absence on such person, also order that his residence and any drainage of or
absence from such residence after release be notified as hereinafter provided
for a term not exceeding five years from the date of the expiration of such
sentence.
(2) If such conviction is set aside on appeal or otherwise, such order shall
become void.
(3) The Provincial Government may make rules to carry out the provisions of this
section relating to the notification of residence or change of or absence from
residence by released convicts.
(4) An order under this section may also be made by an Appellate Court or by the
High Court when exercising its powers of revision.
(5) Any person charged with a breach of any such rules may be tried by a
Magistrate of competent jurisdiction in the district in which the place last
notified by him as his place of residence, is situated.
-----------------
SCHEDULE 1
[Enactments repealed]. Rep. by the Repealing and Amending Act, 1914 (X of 1914),
S. 3 and Sch. II.
SCHEDULE III
(See Section 36)
ORDINARY POWERS OF PROVINCIAL MAGISTRATES
1. Ordinary Power of a Magistrate of the Third Class
(1) Power to arrest or direct the arrest of and to commit to custody, a person
committing an offence in his presence, section 64.
(2) Power to arrest, or direct the arrest in his presence of, an offender
section 65.
(3) Power to endorse a warrant, or to order the removal of an accused person
arrested under a warrant, sections 83, 84 and 86.
(4) Power to issue proclamation is cases judicially before him, section 87.
(5) Power to attach and sell property and to dispose of claims to attached
property in cases judicial before him, section 88.
(6) Power to restore attached property, section 96.
(7) Power to require search to be made for letters and telegrams, section 95.
(8) Power to issue search-warrant, section 96.
(9) Power to endorse-warrant and order delivery of thing found, section 99.
(10) [Omitted by Law Reforms Ordinance, 1972].
(11) [Omitted by Law Reforms Ordinance, 1972].
(12) [Omitted by Law Reforms Ordinance, 1972].
(13) [Omitted by Act 18 of 1923].
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